Veterans’ Benefits Overview 2007 Public Benefits Training Presented by John F. Costello, Jr. Legal Assistance Foundation of Metropolitan Chicago Veterans’ Rights Project

INTRODUCTION Benefits in General Who Is a “Veteran”: Basic Eligibility Requirements Statistics on Veterans Overview of Major Disability Benefits Programs Service-Connected Disability Compensation Needs-Based Disability Pension Benefits for Survivors Overview of Claims Process Resources Miscellaneous

Benefits in General United States Department of Veterans’ Affairs (VA) benefits range from healthcare, compensation for service-connected disabilities, needs-based pensions, education, vocational training, home loan guarantees, life insurance, and burial and memorial benefits. Certain VA benefits are also provided to eligible dependents and survivors of veterans.

Benefits in General The VA benefits system is “paternalistic” In other words, it favor the veteran Reason: service members do not receive workers compensation or disability insurance from the Department of Defense while in military service, and therefore, this system is designed with that in mind

Who Is a “Veteran”: Basic Eligibility Requirements A “veteran” is defined as a “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).

Who Is a “Veteran”: Basic Eligibility Requirements Active duty requirement A “veteran” must have “active military, naval, or air service,” includes, inter alia: Full-time service in Army, Navy, Marine Corp, Air Force or Coast Guard Training, if disease or injury incurred or aggravated in line of duty Guard or Reserve only if called to serve on regular active duty

Who Is a “Veteran”: Basic Eligibility Requirements Character of discharge is important A “veteran” must have been “discharged or released therefrom under conditions other than dishonorable”

Who Is a “Veteran”: Basic Eligibility Requirements Military services generally have 5 types of discharges: 1. honorable discharge (HD) 2. discharge under honorable conditions (UHC) or general discharge (GD) 3. discharge under other than honorable conditions (UOTHC) 4. Bad conduct discharge (BCD) 5. Dishonorable discharge (DD) or dismissal (if officer), Certain administrative discharges by the Department of Defense do not carry a characterization of service, and VA reviews on a case-by-case basis to determine if “other than dishonorable” “personality disorder” – pre-existing condition Recent press stories if this practice Dishonorable, bad conduct discharges, or other conduct may operate as “statutory bar” VA benefits Former servicemembers can seek a discharge upgrade from a Military Discharge Review Board or the Board for Correction of Military Records

Who Is a “Veteran”: Basic Eligibility Requirements Length of service requirement Before September 8, 1980, there was no minimum length of service requirement to establish general eligibility for most VA benefits. After September 8, 1980, a veteran must have served 24 months of active duty or “full period for which … called or ordered to active duty” to be eligible for VA benefits.

Who Is a “Veteran”: Basic Eligibility Requirements Wartime versus peacetime service The following are periods of wartime designated by Congress for purposes of VA benefits: Indian Wars – January 1, 1817 – December 31, 1898 Spanish-American War – April 21, 1898 – July 4, 1902 Mexican Border War – May 9, 1916 – April 5, 1917 World War I – April 6, 1917 – November 1, 1918 World War II – December 7, 1941 – December 31, 1946 Korean Conflict – June 27, 1950 – January 31, 1955 Vietnam Era - August 5, 1964 (February 28, 1961 if “in-country”) – May 7, 1975 Persian Gulf War – August 2, 1990 – date to be determined NOTE: Congress has not enacted legislation that would make the periods covering the Lebanon crisis or the invasions of Grenada and Panama “wartime” service. Certain benefits (ex. needs-based pension) are available only to veterans that served during wartime

Statistics on Veterans Of the 25 million veterans currently alive, nearly three of every four served during a war or an official period of hostility. About a quarter of the nation's population -- approximately 70 million people -- are potentially eligible for VA benefits and services because they are veterans, family members or survivors of veterans In Cook County there are over 250,000 veterans Between 1/4 to 1/3 of all homeless are veterans In Cook County there are an estimated 25,000 to 35,000 homeless veterans

Overview of Major Disability Benefits Programs Service-Connected Disability Compensation Disability compensation is a monetary benefit paid to veterans who are disabled by an injury or disease that was incurred or aggravated during active service. Needs-Based Pension Pension is a monetary support benefit paid to permanently and totally disabled (not service-connected) veterans with low incomes who served during a defined period of war. Prohibition Against Dual Receipt of VA Compensation and VA Pension Benefits On occasion, a veteran may be entitled to both compensation and pension. The VA is prohibited from paying both benefits concurrently. 38 U.S.C. § 5304(a); 38 C.F.R. § A veteran entitled to both must elect to receive one benefit or the other.

Service-Connected Disability Compensation Service-connected disability compensation is available where disability claimed was either incurred or aggravated in the line of duty, not the result of willful misconduct, and the veteran’s discharge was other than dishonorable, 38 U.S.C. § 1110 The “in line of duty” requirement is very liberal Only a temporal connection to the period of service beginning with induction and ending with discharge is required, 38 C.F.R. § 3.303(a) Example: A soldier that injures a knee while skiing on leave in Breckenridge has just as much right to disability compensation as a soldier that injures knee jumping from helicopter into combat in Baghdad.

Service-Connected Disability Compensation 3 Requirements to Obtain : 1. medical diagnosis of current disability 2. evidence of in-service occurrence or aggravation of a disease or injury 3. link or nexus (usually medical evidence) between the in-service occurrence or aggravation of a disease or injury and the current disability

Service-Connected Disability Compensation 1. medical diagnosis of current disability Veterans can submit VA or private medical records VA has a statutory “duty to assist” claimant to obtain medical evidence by making “reasonable efforts,” 38 U.S.C. § 5103A, which include ordering an examination by a VA physician

Service-Connected Disability Compensation 2. in-service occurrence or aggravation VA places great weight on contents of military personnel and medical records Unit histories VA is required to consider lay evidence Veterans own statements describing in detail circumstances of injury or event Private medical records Buddy statements Newspaper articles Letters to family / friends

Service-Connected Disability Compensation 2. in-service occurrence or aggravation Lay evidence may be enough when issue relates to observable event (ex. statement of combat veteran concerning bullet wound), but if circumstances raise a medical issue then medical evidence is required (ex. “triggering event” for post traumatic stress disorder). Relaxed evidentiary standards for combat veterans, 38 U.S.C. § 1154(b), requires VA to accept veteran’s lay statement if event: (1) occurred while “engaged in combat with the enemy;” (2) statement is consistent with the circumstances” of such service; and (3) there is not “clear and convincing evidence to the contrary”

Service-Connected Disability Compensation 3. Evidence of Link or Nexus 5 ways to establish 1. Direct – medical evidence 2. Aggravation – medical evidence and presumption of soundness 3. Statutory Presumption 4. Secondarily 5. Section 1151 and FTCA claims VA must consider all 5 ways, Schroeder v. West, 212 F.3d 1265 (Fed Cir 2000)

Service-Connected Disability Compensation Direct Delayed Direct Service-Connection An event in-service caused the veteran to suffer a disability or disease many years later, 38 C.F.R. § 3.303(d)  Hearing loss due to noise exposure  Arthritis due to trauma  PTSD due to XYZ Chronicity Continuity of Symptomatology Shown through military or service medical records that condition diagnosed or manifested during service, or demonstrating by medical opinion that in-service event caused current condition

Service-Connected Disability Compensation Aggravation Veteran shows worsening of pre-existing condition due to military service Certain disabilities cannot be service-connected if the result of, for instance, “congenial or developmental defects” or “personality disorder and mental deficiency.” 38 C.F.R. §§ 3.303(c); 4.9; However, veterans are presumed to be in “sound condition” at induction to military service, unless otherwise noted in induction examination, 38 U.S.C. § 1111; 38 C.F.R. § § 3.304(a,b) Presumption of “sound condition” can be rebutted only by “clear and unmistakable evidence” VA Gen. Coun. Prec (July 16, 2003)

Service-Connected Disability Compensation Medical Evidence in General “competent medical evidence” must establish that “it is as likely as not” that current disability resulted from disease, injury, or precipitating event during service. 38 U.S.C. § 5107(b); 38 C.F.R. § referred to as “benefit of the doubt” standard In other words, a 50% chance “competent medical evidence” can come from Letter or statement of VA or private physician Evidence in veteran’s service medical records and treatment records Evidence in medical textbooks, treatises or journals VA has a statutory “duty to assist” claimant to obtain medical evidence by making “reasonable efforts.” 38 U.S.C. § 5103A. Best practice is to not rely exclusively on the VA Medical evidence not required if nexus is presumed Chronic disability diagnosed in service, 38 C.F.R. § 3.309(a) Disability presumed to be service-connected is diagnosed within presumptive period following service, 38 C.F.R. §§ 3.307(a); 3.309

Service-Connected Disability Compensation Statutory Presumption Congress has determined that certain disabilities and conditions are presumed to be related to military service Chronic diseases: manifested within defined period of time, 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) Tropical Diseases: manifested within defined period of time, 38 C.F.R. § 3.309(b) Prisoners of War: manifested at any time, 38 C.F.R. § 3.309(c) Persian Gulf Veterans: manifestation of “undiagnosed disability,” 38 C.F.R. § 3.317(b) Radiation-Exposed Veterans: 38 C.F.R. §§ 3.309(d) and Agent Orange: 38 C.F.R. §§ 3.309(e) and 3.313

Service-Connected Disability Compensation Secondary service-connection If a service-connected condition causes or aggravates a second condition, then that second condition is treated as also service- connected, 38 C.F.R. § Compensated just like original service-connected condition Examples: depression as a result of physical impairment, hip condition as a result of knee condition, etc.

Service-Connected Disability Compensation Section 1151 and FTCA Claims If disability or disease was caused by VA medical treatment or vocational rehabilitation, then that disability or disease is treated “as if” connected to service, 38 U.S.C. § 1151 – legal fiction Also potential for Federal Tort Claims Act (FTCA) cause of action, 28 U.S.C. § § 1346(b), Must file administrative claim with VA prior to filing suit in U.S. district court, 28 U.S.C. § 2675(a)  administrative claim must be filed within 2 years after claim accrues, and U.S. district court lawsuit must be filed within 6 months of determination on administrative claim

Service-Connected Disability Compensation Once a condition is found to be service-connected, a percentage of disability is assigned for compensation purposes. The diagnostic code (DC) for the condition and the evidence of symptomatology determine the exact percentage assigned. See 38 C.F.R. Part 4. Description of Benefit Disabilities are rated on a percentage scale and monthly awards determined according to assigned percentage. Percentages range from 10% to 100%, and monthly awards range from $115 to $2,471 per month. Veterans may be entitled to a 100% rating where veteran is unable to engage in substantially gainful occupation – termed total disability based on individual unemployability (TDIU or IU), 38 C.F.R. § 4.16 Veterans may be entitled to special monthly compensation amounts for certain severe disabilities. Examples:  Aid and Attendance  Housebound

Needs-Based Disability Pension 5 Basic Eligibility Criteria 1. Veteran must be discharged under other than dishonorable conditions 2. Veteran must have served during a “war-time period” 3. Veteran must have limited income and net worth ~ “needs test” 4. Veteran must be permanently and totally disabled Need not be service-connected 5. Disability cannot be the result of the veteran’s “willful misconduct,” examples of which include substance addictions and venereal diseases. 38 C.F.R. § 3.1(n), 3.301(b). However, exceptions exist if what would ordinarily be attributable to willful misconduct is secondary or caused by another service-connected disability. 38 C.F.R. § 3.301(c)(2),(3).  For example, lung cancer due to smoking might be covered if that substance addiction was deemed to be secondary to service-connected post traumatic stress disorder. Arguments have been made that the substance addiction was a form of “self medication.”

Needs-Based Disability Pension Determining the Monthly Benefit “Needs Test” - veteran’s “countable income” cannot exceed the Maximum Annual Pension Rate (MAPR) Amount of MAPR varies depending on number of dependents and need for services 2007 MAPR for single veteran is $10,929 Monthly payment = (MAPR – countable income) / 12

Benefits for Survivors Main Benefits Programs for Survivors: Dependency and Indemnity Compensation Service-Connected  Paid to dependents of veterans whose deaths were caused by service-connected conditions, 38 U.S.C. § 1310, … or …  Paid to dependents of veterans that received / were entitled to receive disability compensation for a defined period of time prior to death, 38 U.S.C. § 1318(b)(1,2,3) Death Pension Non-service Connected  Needs-based pension with eligibility criteria for survivors similar to that of the eligibility criteria for veterans disability pension – “wartime” service and low income  However, the MAPR for survivors is much lower than the maximum annual pension rate (MAPR) for veterans, and the MAPR for a surviving spouse is only $7,329 Burial and Memorial Benefits

Overview of Claims Process Chart from Veterans Benefits Manual (2007 edition, Barton F. Stichman and Ronald B. Abrams, eds.) (Lexis Nexis), see Additional Resources slide infra

Overview of Claims Process Procedure to Appeal Decision on Claim for VA Benefits Board of Veterans’ Appeals (BVA) Timeline: substantive appeal must be filed within 60 days of the mailing of the SOC or within 1 year from the date the VA mailed its decision, whichever is later United States Court of Appeals for Veterans’ Claims (CAVC) Timeline: notice of appeal must be filed within 120 days after the BVA mailed its decision United States Court of Appeal for the Federal Circuit United States Supreme Court

Resources Department of Veterans’ Affairs Illinois Department of Veterans’ Affairs Illinois Attorney General, Veterans’ Rights Bureau National Veterans’ Legal Services Program (NVLSP) Publishers of Veterans’ Benefit Manual, which is a recommended resource for advocates practicing in the area of veterans’ law. National Organization of Veterans’ Advocates (NOVA)

Miscellaneous Medal of Honor pension, 38 U.S.C. § 1562, awarded monthly without regard to need at rate of $1104 per month VA Healthcare To ensure that veterans who may be contemplating suicide, and concerned family and friends, have immediate access to a trained person who can help, the Department of Veterans (VA) has established a 24-hour national suicide prevention hotline number: TALK (8255).

Miscellaneous Crippling lack of attorneys representing veterans…Why? Economic Disincentives… History of VA regulation of attorney fees  1862 – 1988  attorneys could only charge $10 (at risk of imprisonment)  1988 – 2007  attorneys could not charge fee at initial administrative levels, but could charge “reasonable fee” for advocacy after BVA denial  2007  Attorneys cannot charge fee at initial administrative level, but can charge “reasonable fee” – 20% is presumptively proper – after first stage of administrative decision (NOD)  repeal bill pending in House of Representatives?  Proposed regulations for attorney accreditation (i.e., testing) pending

Miscellaneous Result… Crippling lack of attorneys represent veterans  Less that 100 coast-to-coast  Veterans Service Organizations fill the gap and provide assistance  Disabled American Veterans, Amvets, American Legion, Military Order of the Purple Heart, etc.  About ½ of veterans seeks benefits from the VA pro se  Veterans with some kind of representation receive, on average, $6,225 more per year than unrepresented veterans  Attorneys can make a Tangible Impact

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