In May 2010, President Barack H. Obama signed into

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1 VA s NEW FAMILY CAREGIVER PROGRAM VOL. 23, NO. 4-7 April June 2012 THE VETERANS ADVOCATE A Veterans Law and Advocacy Journal In May 2010, President Barack H. Obama signed into law the Caregivers and Veterans Omnibus Health Services Act of 2010, 11 Pub. L. No. 163, 124 Stat (May 5, 2010). Through this law, Congress required VA to establish a program of comprehensive assistance for family caregivers of eligible veterans, who were seriously injured in the line of duty on or after September 11, Specifically, the 2010 Caregivers law created a new section of Title 38 of the United States Code, section 1720G, which details eligibility and other basic elements of the program. The program elements include certain medical, travel, training, respite care, and financial benefits (including a monthly personal caregiver stipend). In May 2011, the VA issued an interim final rule to implement the provisions of the new law. See 76 Fed. Reg. 26,148 (Interim Final Rule) (May 5, 2011). As of the date of this writing, the final rule has not yet been promulgated. This article will go over the basic elements of this significant program, as well as subsequent developments regarding the program, particularly regarding VA s interim final rule published in To our readers... As we said in our last issue, we have set an aggressive schedule to catch up with the remainder of 2012 with three individual issues this is one of them. You ll still get all the pages you paid for! No one else offers our blend of reporting and analysis of veterans law. Don t miss out on our authoritative source of information, interpretation and practical advice. May Additional information regarding the Family Caregiver Program, including how to apply, may be found at Caregiver Benefits A family caregiver is a family member who has been approved to provide personal care services for an eligible veteran. Under the 2010 statute, a family caregiver is entitled to training as well as ongoing technical support, counseling, and lodging and subsistence benefits. As discussed further below, in the section regarding eligibility, a caregiver may be a veteran s spouse, son, daughter, or other specific family or household member. 1. Mental Health Services and Respite Care Significantly, for the family caregiver who is designated as the primary provider of personal care services for an eligible veteran, the caregiver will also receive Inside this issue... Continued, next page VA s New Family Caregiver Program... 1 Impact of Recent Federal Circuit Decision on SMP Benefits... 8 WHAT S NEW? Additional Potential Nehmer Class Members Identified Frequently Asked Advocacy Question: Inadequate VA Examination for a TDIU Claim

2 THE VETERANS ADVOCATE APRIL JUNE 2012 THE VETERANS ADVOCATE Informing Advocates Since 1989 NVLSP Joint Executive Directors Barton F. Stichman Ronald B. Abrams Editor Louis J. George Contributing Writers Ronald B. Abrams Richard Spataro Maria Tripplaar Creative Services MGP Direct, Inc. Rich Pottern Design Subscriptions Kevin Chandler For permission, please write: Louis J. George, Editor The Veterans Advocate NVLSP 1600 K Street, NW # 500 Washington, D.C Or fax: (202) Or tva@nvlsp.org Copyright 2012 by the National Veterans Legal Services Program. All rights reserved. ISSN No more than one article may be reproduced in up to five copies for counseling, self-help, further dissemination to veterans advocates, use in presenting a claim to the VA, or research without further permission and if proper credit is given. Other use requires the written authorization of NVLSP. tva@nvlsp.org Website: Order NVLSP Publications Online Visit and click on Store/Publications to securely order the Veterans Benefits Manual, the Basic Training Course, The Veterans Advocate, and other NVLSP publications quickly and easily. Use VISA, MasterCard, American Express or Discover. Under the 2010 statute, a family caregiver who has been approved to provide personal care services for an eligible veteran... is entitled to training as well as ongoing technical support, counseling, and lodging and subsistence benefits... a caregiver may be a veteran s spouse, son, daughter, or other specific family or household member. mental health services that the Secretary deems appropriate, and respite care of not less than 30 days annually, including 24-hour per day care of the veteran commensurate with the care provided by the family caregiver to allow for extended respite. Respite care is part of the VAs medical benefits package (and is also utilized for its non-institutional extended care programs) and allows the veteran s usual caregiver a planned period of relief from furnishing daily care to the veteran. Under this program, the respite provider temporarily replaces the caregiver to supervise the veteran or provide skilled care. The veteran may be admitted to a VA hospital or nursing home for a limited period of time, or respite may be provided in the home or at an adult day health care facility. VA s interim final rule explicitly interprets mental health services for Primary and Secondary Family Caregivers to include individual and group therapy, counseling and peer support groups. Such mental health services are to assist family caregivers cope with the stresses of caregiving, which can lead to depression, anger, interpersonal conflict, anxiety, substance use, sleep disturbances, social isolation, and other personal and social issues. However, VA does not consider itself obligated to provide family caregivers with mental health services in the form of medication, inpatient psychiatric care, or other medical procedures related to mental health treatment. 2. Implications for Educational Benefits Under another statute, the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, primary caregivers of a veteran, under the provisions of 38 U.S.C. 1720G, are also entitled to an extension 2

3 VA S NEW FAMILY CAREGIVER PROGRAM of his or her delimiting date for use of the All-Volunteer Force Educational Assistance. In such a case, a caregiver who is also a veteran (for example, the veteran s spouse or child) may be able to extend the ability to use his or her own educational benefits before their expiration. 3. CHAMPVA A significant benefit provided to a veteran s primary caregiver is personal medical care under the CHAMPVA (Civilian Health and Medical Program of the Department of Veterans Affairs) program. If the family caregiver who is designated as the primary provider of personal care services for an eligible veteran, is not entitled to care or services under a health plan contract, then he or she is entitled to benefits under the CHAMPVA program. The CHAMPVA program is set forth in 38 C.F.R Monthly Personal Caregiver Stipend A second significant benefit provided to a veteran s primary caregiver is a monthly personal caregiver stipend. Under VA s interim final rule, primary family caregivers will receive a monthly stipend for each prior month s participation as a primary family caregiver. The amount of the stipend will depend upon the veteran s level of dependency which is based upon the degree to which the eligible veteran is unable to perform one or more activities of daily living (ADLs), or the degree to which the eligible veteran is in need of supervision or protection based on symptoms or residuals of neurological or other impairment or injury. According to the interim final rule, the caregiver stipend is based on the Department of Labor s national estimate for hourly wages of a Home Health Aide, which is $11.67 for FY 2009, which adjusted for inflation to FY 2011 is $12.55 per hour. The interim final further details exactly how the amount of this stipend will be calculated. 5. Summary of Who Will Benefit The VA estimated in the interim final rule that 3,596 veterans and their caregivers may benefit from the caregiver program. Out of this number, VA estimated that 2,116 veterans and servicemembers would have serious injuries and service-connected anatomical loss, or loss of use; 220 veterans would be service-connected for traumatic brain injury, at 100 percent; 46 veterans with 100 percent service-connected mental health condition with a GAF score of 30 or less; 394 veterans with a serious injury; and 720 potentially new service-connected members identified by the Department of Defense. See 76 Fed. Reg. at 26,161 Basic Eligibility 1. Veteran s Eligibility to Participate in the Program As provided in the statute, in order to be eligible to participate in the Family Caregiver Program, the Secretary of the VA must determine that it is in the best interest of the eligible veteran to participate in the program, and the veteran must meet the following criteria: Be a veteran or member of the Armed Forces undergoing medical discharge from the Armed Forces; Have a serious injury (including traumatic brain injury psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001; and Be in need of personal care services because of 1. An inability to perform one or more activities of daily living; 2. A need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or 3. Such other matters as the Secretary considers appropriate. Under the VA s interim final rule, the VA added some requirements not found in the statute. The VA s 3

4 THE VETERANS ADVOCATE APRIL JUNE 2012 regulation regarding eligibility for the Caregivers program, 38 C.F.R , provides the following additional guidelines: The serious injury renders the individual in need of personal care services for a minimum of 6 continuous months (based on a clinical determination), based on any one of the following clinical criteria: 1. An inability to perform an activity of daily living. 2. A need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, including traumatic brain injury. 3. Psychological trauma or a mental disorder that has been scored, by a licensed mental health professional, with Global Assessment of Functioning (GAF) test scores of 30 or less, continuously during the 90-day period immediately preceding the date on which VA initially received the caregiver application. VA will consider a GAF score to be continuous if there are at least two scores during the 90-day period (one that shows a GAF score of 30 or less at the beginning of the 90-day period and one that shows a GAF score of 30 or less at the end of the 90-day period) and there are no intervening GAF scores of more than Fed. Reg. at 26, The veteran is service connected for a serious injury that was incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001, and has been rated 100 percent disabled for that serious injury, and has been awarded special monthly compensation that includes an aid and attendance allowance. Personal care services that would be provided by the Family Caregiver will not be simultaneously and regularly provided by or through another individual or entity. The individual agrees to receive care at home after VA designates a Family Caregiver; and The individual agrees to receive ongoing care from a primary care team after VA designates a Family Caregiver. See 76 Fed. Reg. at 26,150-26,151. As a note about appealing the Secretary s determination regarding a veteran s eligibility for the Caregivers program, the 2010 statute provides that a decision by VA affecting the furnishing of assistance or support shall be considered a medical determination. This is significant because a medical determination is exempt from appeal before the Board of Veterans Appeals. VA regulations provide that [m]edical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board s jurisdiction. Therefore, under current law, an adverse VA decision concerning the Family Caregiver Program may be immune from appeal to the Board of Veterans Appeals (and accordingly, the Court of Appeals for Veterans Claims). 2. Eligibility to Serve as a Primary or Secondary Family Caregiver VA s interim regulations (specifically, 38 C.F.R ) discusses who may be eligible to serve as a veteran s primary or secondary family caregiver. In order to be a primary or secondary caregiver, an applicant must meet all of the following requirements: Be at least 18 years of age; Be either the veteran s spouse, son, daughter, parent, step-family member, or extended family member, or be someone who lives with the vet- [A] decision by VA affecting the furnishing of assistance or support shall be considered a medical determination. This is significant because a medical determination is exempt from appeal before the Board of Veterans Appeals. 4

5 VA S NEW FAMILY CAREGIVER PROGRAM eran full-time or will do so if designated as a family caregiver; VA must determine there is no abuse or neglect of the veteran by the applicant; and Meet the requirements of 38 C.F.R (c), related to assessment, education, and training of caregiver applicants. There may be no more than three (3) family caregivers, with no more than one serving as the primary family caregiver. Primary family caregivers receive an extensive array of benefits, including the following: Respite care; Eligibility for enrollment in CHAMPVA; A Monthly Stipend; All the benefits that a secondary family caregiver is eligible to receive. See 38 C.F.R (c). In addition, as noted earlier in this article, primary family caregivers who are also veterans, are entitled to extensions of their VA educational benefits. Secondary family caregivers are also entitled to benefits under the program, including the following: All the benefits general caregivers receive (see below for more information regarding general caregivers), including respite care, so long as the veteran is enrolled in the VA health care system; Instruction and training, as well as counseling and support; and Travel reimbursement if the travel is for the purposes of assisting the beneficiary. See 38 C.F.R (b). 3. General Caregivers In addition to primary and secondary family caregivers, an individual may serve as a general caregiver. A general caregiver is not a primary or secondary family caregiver, and provides personal care to a covered veteran who may not necessary meet the criteria for enrollment in the VA Family Caregiver program (for example, the veteran s military service pre-dated September 11, 2001). In order to be a covered veteran, the veteran needs to be enrolled in the VA health care system and needs personal care services because the veteran is either: 1. Unable to perform an activity of daily living; or 2. Needs supervision or protection based on symptoms or residuals of neurological care or other impairment or injury. General caregivers are entitled to continued instruction, preparation, training, and technical support, as well as counseling. Furthermore, general caregivers have access to respite care for eligible and covered veterans in support of the caregiver, that is medically and age-appropriate for the eligible or covered veteran (including 24-hour per day in-home respite care). See 38 C.F.R (a). Specific Definitions in the Regulations regarding Clinical Criteria The VA s Caregiver regulations (specifically, 38 C.F.R ) provide further definitions regarding the types of veterans eligible for the program. For example, a veteran who has the inability to perform an activity of daily living (ADL) one of the clinical criteria noted above for a veteran to require personal care services means a veteran with any one of the following impairments: 1. Inability to dress or undress oneself; 2. Inability to bathe; 3. Inability to groom oneself in order to keep oneself clean and presentable; 4. Frequent need of adjustment of any special prosthetic or orthopedic appliance that, by reason of the particular disability, cannot be done without assistance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); 5. Inability to toilet or attend to toileting without assistance; 5

6 THE VETERANS ADVOCATE APRIL JUNE 2012 NVLSP BASIC TRAINING COURSE The Online Basic Training Course in Veterans Benefits NVLSP s Online Basic Training Course is a primer that will help you better understand the rules for obtaining veterans benefits and how to deal with the VA. This easy-to-understand online course is designed for both veterans advocates and veterans themselves, and is designed to provide individuals with vital information and a basic understanding of the system that will help them work more effectively with the VA. The course, including online manual, online sample forms, online test and certificate of completion is $150. Order ONLINE at and click on Publications. Or, if you need to order the course for more than one person, call NVLSP at , extension 104. WHO SHOULD TAKE THIS COURSE? POST SERVICE OFFICERS VETERANS COUNTY, STATE & NATIONAL VETERANS SERVICE OFFICERS ANY VETERANS ADVOCATE 6. Inability to feed oneself due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition; or 7. Difficulty with mobility (walking, going up stairs, transferring from bed to chair, etc.). In addition, VA defines the need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury as requiring supervision or assistance for any of the following reasons: 1. Seizures (blackouts or lapses in mental awareness, etc.); 2. Difficulty with planning and organizing (such as the ability to adhere to medication regimen); 3. Safety risks (wandering outside the home, danger of falling, using electrical appliances, etc.); 4. Difficulty with sleep regulation; 5. Delusions or hallucination; 6. Difficulty with recent memory; and 7. Self-regulation (being able to moderate moods, agitation or aggression, etc.). Conclusion Of course, advocates should first ensure that their clients are properly service connected and adequately compensated. As part of this, advocates should be aware of the full range of benefits available to their veterans with serious injuries, such as Special Monthly Compensation (SMC). 1. Effective advocates should be aware of the newer benefits available to the veteran s caregiver. The VA s Family Caregiver Program provides significant benefits such as a monthly stipend, extension of VA educational benefits for veterancaregivers, and health care benefits under CHAMPVA. To best service veterans and their family, advocates should ensure that their veterans and caregivers take advantage of all the benefits available under the program. 6

7 VA S NEW FAMILY CAREGIVER PROGRAM 2. Since the VA Family Caregiver Program is relatively new, there is not much of a track record regarding the VA s implementation of the program. Furthermore, with administrative review by the Board of Veterans Appeals (as well as judicial review by the Veterans Court) seemingly foreclosed due to the medical determination nature of eligibility decisions, it is unclear whether VA eligibility decisions have been overly restrictive. We will continue to follow this matter with great interest, and report any developments in The Veterans Advocate. in service. Again, it may help to get a statement NVLSP TRAINING from a counselor or mental health expert that One of NVLSP s primary missions is to train advocates so that they can efficiently help veterans secure benefits from the VA. To further this indicates that reluctance reporting mental mission, NVLSP conducts trainings for groups of non-attorneys (such as service officers from major service organizations) as well as attorneys. and that Whether veteran s you issues is very common seek training for nonattorney advocates or failure attorneys, to report we will symptoms work with you to customize a training program should that meets be viewed the as needs of your organization. We are available to conduct one-day to fourday training completely sessions. consistent For with further his/her information story. or to schedule training, please contact Ronald B. Abrams, Esq. at ron_abrams@nvlsp.org. x TVA subscribers may submit advocacy questions to tva@nvlsp.org. Please make sure to mention FAAQ/TVA in your . We do not guarantee that your question will be published. We reserve the right to edit your question. 7

8 THE VETERANS ADVOCATE APRIL JUNE 2012 IMPACT OF RECENT FEDERAL CIRCUIT DECISION IN CHANDLER V. SHINSEKI ON SPECIAL MONTHLY PENSION BENEFITS Until the April 2012 Federal Circuit decision in Chandler v. Shinseki, veterans age 65 or older had an additional path to obtain Special Monthly Pension (SMP) benefits at the housebound rate. See Chandler v. Shinseki, 676 F.3d 1045 (2012). In Chandler, the U.S. Court of Appeals for Veterans Claims held that a claimant 65 years old older by virtue of age would be presumed to be permanently and totally disabled, and would not need a single permanent disability rated 100% disabling in order to qualify for the additional housebound benefit veterans. The Veterans Court held that this particular requirement had been met due to age. The other requirements for special monthly pension (SMP) benefits still had to be met, such as a claimant must either be substantially confined to the home and immediate premises or have additional independently ratable disability or disabilities rated as 60% disabling overall. However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decision in April 2012 changed that framework. Advocates should keep in mind that while a veteran can no longer obtain SMP benefits by virtue of age in order to satisfy the total disability requirement, the traditional path is still valid for SMP benefits. SMP benefits are awarded when a particular veteran s disability level exceeds permanent and total disability, or when certain other criteria are met. SMP may be awarded if a veteran is housebound or if a veteran requires aid and attendance. Housebound benefits are awarded when VA determines that a veteran, who has already been determined to be disabled, is now also determined to be permanently housebound. Essentially the veteran is confined to his or her home. Aid and Attendance (A&A) benefits are awarded if VA determines that a veteran, who has been awarded entitlement to pension benefits, needs the regular aid and attendance of another person. It should be noted that a permanent need for A&A is not required for a grant of entitlement to A&A. For the purposes of this article, we will focus on the type of SMP benefits that are awarded when a veteran is housebound. Proving Entitlement to Housebound Benefits There are two general ways for a veteran to prove entitlement to housebound benefits. The first way entitlement can be proven is if the veteran has a single permanent disability rated as total (100% disabling) under the VA rating schedule and the veteran is substantially confined to his or her dwelling and the immediate premises. The second way entitlement can be proven is if the veteran has a single permanent disability rated as total (100% disabling) with additional disability or disabilities independently rated at 60% or more. In this scenario, entitlement to SMP housebound benefits is established whether or not the veteran is actually housebound. As background information, in Hartness v. Nicholson, the Court of Appeals for Veterans Claims (CAVC or Veterans Court) ruled that under 38 U.S.C 1513, a wartime veteran may be awarded housebound benefits if: The veteran is 65 years old; and Is rated at least 60% disabled; or Is considered permanently housebound. See Hartness v. Nicholson, 20 Vet.App. 216 (2006), overruled by Chandler, 676 F.3d 1045 (2012). Following the CAVC s ruling in Hartness, the VA tended to focus on 1513(b), which provides that [i]f a veteran is eligible for a pension under both this section and section

9 IMPACT OF RECENT FEDERAL CIRCUIT DECISION ON SMP BENEFITS of this title, pension shall be paid to the veteran only under section 1521 of this title. VA s interpretation of Hartness created arbitrary distinctions among pension claimants and was challenged in Chandler v. Shinseki, 24 Vet.App. 23 (2010), reversed by Chandler v. Shinseki, 676 F.3d 1045 (2012). The Veterans Court s Decision in Chandler v. Shinseki The facts of the Chandler case involve a veteran who was awarded VA non-service-connected pension benefits at age 57 and had a combined VA pension rating of 80%, including a 60% evaluation for prostate cancer. The veteran had served on active duty from 1952 to 1956, including time in-country in Korea. At the age of 71, the veteran filed for SMP under 38 U.S.C. 1521(e). The veteran argued that 1513(a) eliminated the requirement to prove that he suffered a permanent and total disability as he had attained the age of at least 65 and met the remaining requirements of 1521(e). The Board of Veterans Appeals (BVA or Board) denied Mr. Chandler s claim for SMP, stating that 1513 was not applicable given the outcome of the Hartness v. Nicholson case. The veteran appealed the Board s decision to the CAVC. At the Veterans Court, the issue on appeal was whether the veteran, who was receiving non-serviceconnected pension, qualified for SMP given that he was over age 65. Chandler, 24 Vet.App. at 24. The Court determined that the veteran was eligible for SMP housebound benefits under As the Veterans Court addressed in Chandler, there were two statutes involved in the case, 38 U.S.C and 38 U.S.C. 1521, as well as the Hartness decision. Id. at Prior to turning 65, the veteran had been granted non-service-connected pension under 1521(a) for his disabilities. Under the decision in Hartness, it appeared that veteran would qualify for the higher rate of SMP after he turned 65. However, VA argued that the veteran was not entitled to SMP under 1513(b) because although the veteran was permanently and totally disabled, he did not have a single disability rated at 100%. Id. at 27. The Veterans Court in Chandler held that the Board erred in the following respects: Determining that the veteran was not entitled to the application of 1513 and the ruling in Hartness; and Determining that the veteran was required to show a single permanent disability rated 100%, in order to receive SMP under 1521(e). Id. at 31. The Court noted that by the time the case made its way to CAVC, VA had already determined the veteran had a non-service-connected disability pension because his disabilities prevented him from maintaining employment. It should also be noted that the veteran suffered a disability independently ratable at 60% and was over age 65. The Court therefore concluded that the veteran was entitled to SMP under 1521(e), pursuant to the interpretation of 1513(a) in Hartness. Id. The Federal Circuit s Decision in Chandler v. Shinseki VA appealed the CAVC decision in Chandler to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In its subsequent decision, the Federal Circuit reversed the CAVC s decision in Chandler, and expressly overturned the Veterans Court s earlier decision in Hartness. The Court found that Hartness introduces the possibility of the absurd result identified by the Veterans Court wherein similarly situated veterans are treated differently under the pension provisions depending on when they first started receiving a pension. Chandler, 676 F.3d at Specifically, the Court stated that [v]eterans applying for special monthly pension benefits under section 1521(e) should be on equal footing regardless of when they apply for a pension, i.e., whether the veteran applies before or after turning sixty-five years old. Id. In these scenarios, advocates are advised to 1. To appeal denials of entitlement to SMP housebound benefits if a veteran age 65 or older has a disability evaluated as 60% disabling; and 9

10 THE VETERANS ADVOCATE APRIL JUNE To encourage veterans who are receiving pension prior to turning age 65 and with at least a disability rating of 60%, to apply for SMP at the housebound rate. How does Bradley v. Peake Impact this Federal Circuit Decision? Unlike Chandler, which was a pension case, Bradley v. Peake was a case that involved special monthly compensation, SMC, which is specific to VA compensation benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, Bradley may also be applied to claims for SMP benefits. Under Bradley, a veteran with either a 100% rating or total disability rating based on individual unemployability (IU or TDIU) could get to SMC(s) if his or her other service-connected conditions combine to a 60% rating. SMC(s) is synonymous with housebound benefits, and is awarded to veterans with a total disability rating, and a separately ratable disability with at least a 60% evaluation. Applying the principles of Bradley to SMP claims, if a veteran is permanently and totally disabled based upon one disability, it is still possible to receive SMP housebound benefits, assuming that the veteran is housebound, or has additional disability or disabilities independently rated at 60% or more. This interpretation of Bradley has not yet been judicially tested, as it would involve the interplay of Bradley as well as the pertinent regulation, 38 C.F.R (d). Nonetheless, assuming a permanent and total disability based upon one disability, entitlement to SMP housebound benefits does not appear to be precluded by the regulation found at 38 C.F.R (d)). Applying the principles of Bradley to SMP claims, if a veteran is permanently and totally disabled based upon one disability, it is still possible to receive SMP housebound benefits, assuming that the veteran is housebound, or has additional disability or disabilities independently rated at 60% or more. However, it is noted that a relevant provision of the VA Adjudication Procedures Manual, M21-1MR, requires a 100% schedular evaluation, rather than a TDIU evaluation for pension purposes, which may complicate matters. This requirement for a 100% schedular evaluation is also reflected in 38 C.F.R (d). The VA Adjudication Procedures Manual, M21-1MR, Part V, Subpart ii, 3.2.a (last updated Dec. 13, 2005) states, [b]ecause the single 100 percent NSC disability must be a schedular evaluation, a total evaluation based on unemployability under 38 C.F.R will not suffice. We believe that this M21-1MR provision is inconsistent with the CAVC s decision in Bradley. The statute analyzed by Bradley, 38 U.S.C. 1114, is very similar to the statute for pension, 38 U.S.C. 1521(e). Both statutes use the words disability rated as total. 38 U.S.C adds the modifier permanent because pension requires a permanent disability. The relevant regulation applicable to SMP housebound benefits, 38 C.F.R (d), specifically excludes ratings based on unemployability, and the regulation refers to a single permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities. The regulation found in 38 C.F.R 3.351(d) clearly requires SMP housebound claims to have one schedular 100% evaluation. The regulation, however, may be unlawful. The statute does not mention a requirement for a 100% schedular evaluation; it only refers to total disability. Nothing in the pension statute, which uses the word total could be interpreted to mean only 100% schedular. Similarly, Fast Letter 12-20, entitled Chandler v. Shinseki and Veterans Who Have Attained Age 65, which was released on August 8, 2012, seemingly attempts to reinforce this regulation by stating, as a matter of law, a Veteran must have a single permanent disability rated 100 percent disabling to establish entitlement to special monthly pension at the housebound rate under section 1521(e). However, this Fast Letter does not address the inconsistency between the regulation and the statute, and the policies outlined in the Fast Letter in a similar way to the regulation and the M21-1MR provision noted above may also be unlawful. 10

11 IMPACT OF RECENT FEDERAL CIRCUIT DECISION ON SMP BENEFITS The regulation [38 C.F.R (d)] may be unlawful. The statute does not mention a requirement for a 100% schedular evaluation; it only refers to total disability. Nothing in the pension statute, which uses the word total could be interpreted to mean only 100% schedular. Advocates may apply for housebound pension benefits and submit argument that the VA regulation which limits SMP to only a 100% schedular evaluation is unlawful. The advocate may argue that the regulation is impermissibly stricter than the statute, and the interpretation of the words disability rated as total by the Bradley decision makes it clear that the word total means both 100% schedular and a grant of TDIU. Therefore, where the veteran has been assigned a total (but non-schedular) rating for pension purposes based upon a single disability, and has additional disability or disabilities independently rated at 60% or more, advocates may claim entitlement to housebound benefits. This should include requesting the benefits retroactively or appealing adverse decisions. Practicalities of Filing for Special Monthly Pension Benefits The VA does not require a claimant to complete a specific form to apply for SMP. The advocate need only notify the VA that the client is seeking entitlement to SMP for a claim to be filed for SMP benefits. However, to support a claim for SMP, it is advised that the veteran s physician complete VA Form , Examination For Housebound Status Or Permanent Need For Regular Aid And Attendance. If possible, advocates are also advised to submit a private physician s statement in support of SMP claims. In addition to a statement by the doctor providing a diagnosis or diagnoses, the medical statement should provide a private doctor s opinion regarding whether the veteran suffers from the following: Incapacity, physical or mental; and, Which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is preferable if the doctor can specifically address whether the claimant can: Leave home without assistance; Walk unaided; Feed himself/herself; Keep himself or herself clean; or Whether the claimant is blind, bedridden, or incontinent. Conclusion As we know, the Chandler case involves pension benefits, and for pension purposes, a veteran age 65 years or older is considered to be 100% disabled. Previously, if that same veteran also had a 60% combined rating, he or she would be eligible for special monthly pension benefits. However, this is no longer available because of the Federal Circuit s decision in Chandler. In comparison, Bradley was a case involving compensation benefits. According to the ruling in Bradley, a veteran with either a 100% schedular rating or IU is eligible for a particular type of special monthly compensation if his other service connected conditions combined for an overall rating of at least 60%. Advocates may argue that the principles of Bradley can be applied to pension cases as a route to special monthly pension (SMP) benefits. Therefore, even though the Federal Circuit s decision in Chandler took away one path to special monthly pension benefits at the housebound rate, another path to housebound benefits under the VA pension program is available pursuant to Bradley. [E]ven though the Federal Circuit s decision in Chandler took away one path to special monthly pension benefits at the housebound rate, another path to housebound benefits under the VA pension program is available pursuant to Bradley. 11

12 THE VETERANS ADVOCATE APRIL JUNE 2012 WHAT S NEW? 69,000 POTENTIAL NEW NEHMER CLASS MEMBERS IDENTIFIED WHAT S NEW: 69,000 Potential New Nehmer Class Members Identified As many readers of the The Veterans Advocate (TVA) may be aware, for some time the VA has been readjudicating previously-denied claims for service connection for diseases related to herbicide exposure in the Republic of Vietnam, under the class action case Nehmer v. U.S. Department of Veterans Affairs, No (N.D. Cal.) (TEH) (Nehmer). This article will address some recent developments in regards to additional class members who have been identified. As a result of NVLSP s findings that the procedure used by VA to identify class members under the Court orders in Nehmer was inherently flawed, VA has agreed to additional measures to readjudicate potential eligible cases. Specifically, VA has started to review an additional 69,000 cases under the Nehmer rules, as these potential class members were not considered when VA initially identified cases for Nehmer review. VA originally recognized for Nehmer review approximately 96,000 veterans or survivors who had filed a claim for compensation related to one of the three new presumptive conditions (ischemic heart disease, chronic B cell leukemias, and Parkinson s disease). These 96,000 veterans or survivorswere denied entitlement to service connection on or after September 25, 1985, and prior to October 13, 2009, which is the date As a result of NVLSP s findings that the procedure used by VA to identify class members under the Court orders in Nehmer was inherently flawed, VA has agreed to additional measures to readjudicate potential eligible cases. that the VA announced the expected addition of the new presumptive diseases. Once VA announced the addition of the three new disabilities as presumptively related to herbicide exposure, the VA began to identify potential class members. The VA initially determined class members by diagnostic codes (DCs) associated with the diseases and matched this list to VA/Department of Defense s in-country Vietnam file. This resulted in an initial list of approximately 96,000 claimants. In the October 2011 March 2012 issue of the TVA, in the article entitled Little Known Additional Retroactive Benefits as a result of Nehmer, we stated that this list of 96,000 class members was under-inclusive because it did not include veterans (or survivors) who were eventually granted service connection for one of the diseases after September 25, 1985, on a direct (e.g. aggravation) or secondary basis; and DIC claims may not have included the relevant diagnostic code. In April 2012, NVLSP complained to the Department of Justice that VA s process to identify Nehmer class members was flawed because VA failed to search for veterans who had been granted, rather than denied, service connection for one of the three new presumptive conditions prior to October 13, For example, a veteran may have been granted entitlement to service connection for ischemic heart disease (IHD) on a non-presumptive basis, such as secondary due to service-connected diabetes mellitus. This veteran may not be receiving the proper effective date, if the veteran had previously filed for service connection and had been denied. In addition a veteran who has been granted service connection for IHD, on the basis of aggravation by another service-connected disability, may not be receiving the full level of compensation that he or she may be entitled to, since the VA may have made 12

13 WHAT S NEW? ADDITIONAL POTENTIAL NEHMER CLASS MEMBERS IDENTIFIED Currently, VA has identified approximately 69,000 veterans who were overlooked in the original search by VA but may be entitled to readjudication pursuant to Nehmer. These veterans were granted service connection for one or more of the three new presumptive conditions between September 25, 1985 and October 13, a deduction corresponding to the level attributed to aggravation. In May 2012, in response to NVLSP s complaint, VA agreed to conduct a targeted review of claims files of Vietnam veterans who were granted entitlement to service connection for any of the three new presumptive conditions between September 25, 1985 and October 13, If VA determines there is a potential basis for entitlement to additional benefits, it will readjudicate the claim under the Nehmer rules. Initially, VA identified approximately 69,000 veterans who were overlooked in the original search by VA but may be entitled to readjudication pursuant to Nehmer. These veterans were granted service connection for one or more of the three new presumptive conditions between September 25, 1985 and October 13, 2009, and were not among the initial 150,000 cases reviewed under the Nehmer Court Orders. Vietnam veterans who were granted entitlement to service connection prior to the addition of the three diseases to VA s Agent Orange presumptive list might be entitled to additional compensation under Nehmer if: The veteran had filed an even earlier explicit claim that had been denied; There is a Footnote 1 claim; or Service connection was originally granted because the condition was aggravated by another service connected condition, and the evaluation was discounted to represent only the level of aggravation. VA has culled the initial list of 69,000 newly identified class members to (1) eliminate cases that were adjudicated during Phase I, and (2) eliminate veterans who died prior to September 25, As of February 2013, the number of cases identified for Phase II review stood at 64,425. VA has hired and trained contractors who recently began pre-screening the identified claims files to determine if there is potential entitlement to Nehmer benefits. In general, cases identified by the contractors as having potential Nehmer entitlement are forwarded to VA personnel for adjudication. VA anticipates that about 10%-15% of these cases will ultimately require full Nehmer readjudication. On August 9, 2012, 98 Phase II cases originating from one VA regional office were released to two Nehmer Subject Matter Experts for use in training the contractor that would be conducting the screenings. Training took place over the course of several months. Additional shipments of cases to the contractor began on November 2, Some quick facts: 243 cases were screened by the contractor between August 9, 2012 and December 7, Of those cases, 73 were forwarded to VA adjudicators for readjudication. VA plans to gradually increase Phase II production over the course of the next several months. Unlike in Phase I, Phase II work is being completed primarily at VA regional offices. In January 2013, VBA s Southern Area began issuing Nehmer decisions in these Phase II cases. Readjudication of Phase II cases will expand to each of the other 3 VBA Areas of Operation approximately every three months. VA expects that the next VBA area will be added in May Accordingly, VA will continue making Nehmer decisions throughout 2013, and likely into Advocates should be alert for these screenings and any readjudications pursuant to the Nehmer rules. Please note that there have not been any changes as to how the effective date rules for Nehmer cases will be applied, and prior guidance provided by NVLSP through the TVA and other venues remains the same. 13

14 14 THE VETERANS ADVOCATE APRIL JUNE 2012 FAAQ ADVOCACY Question: A veteran came to my office with questions about why his claim for total disability based on individual unemployability (TDIU or IU) was denied. He has a combined rating of 90% for his service-connected disabilities, including a 60% evaluation for ischemic heart disease. The VA Regional Office denied the veteran s claim for TDIU, and stated that the evidence did not show that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The rating decision relied on a series of separate medical examinations that each addressed a specific disability. The rating decision indicated that the examiners opined that the veteran s service-connected disabilities do not impact his ability to work. It is noted that the veteran is serviceconnected for seven different disabilities (including chronic fatigue syndrome, a urinary disorder, and his heart condition). I ve reviewed the seven examination reports, and each seems to be complete. How should I proceed with assisting this veteran? - A.F., Washington, DC Answer: This is a common problem that we have identified in the past, including in cases before the Court of Appeals for Veterans Claims (in which we were able to obtain a Joint Motion for Remand, which sent the case back to the Board of Veterans Appeals for further adjudication). In this case, the VA violated its duty to assist. With respect to a claim for TDIU, the duty to assist requires the VA to obtain an examination that includes an opinion on what effect all the veteran s serviceconnected disabilities alone have on a veteran s ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Blackburn v. Brown, 4 Vet.App. 395 (1993) (entitlement to TDIU compensation must be established solely FREQUENTLY ASKED QUESTION on the basis of impairment arising from service-connected disabilities). The regulations governing TDIU acknowledge that a veteran s multiple disabilities must be considered: 4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R (emphasis added). In this case, the VA never afforded the veteran a comprehensive examination that addressed whether his disabilities, in their totality, rendered him unemployable. In response to a request for TDIU evaluation, a general medical examination must be scheduled in which the examiner is requested to provide an opinion as to whether or not it is at least as likely as not that the veteran s service-connected disability or combined disabilities render him or her unable to secure and maintain substantially gainful employment, including describing the disabilities functional impairment and how that impairment affects physical and sedentary employment.

15 FAAQ: INADEQUATE VA EXAMINATION FOR A TDIU CLAIM In response to a request for TDIU evaluation, a general medical examination must be scheduled in which the examiner is requested to provide an opinion as to whether or not it is at least as likely as not that the veteran s service-connected disability or combined LAWYERS SERVING WARRIORS CRSC The National Veterans Legal Services Program (NVLSP) provides free legal representation to veterans applying for Combat-Related Special Compensation (CRSC) through its Lawyers Serving Warriors project. Congress created CRSC in 2008 to provide certain veterans who suffer from combatrelated disabilities with hundreds of dollars per month in additional tax-free compensation to supplement whatever disability benefits they are already receiving from the VA or the military. To be eligible for CRSC, a veteran must (1) have been permanently retired by the military for disability or placed on the TDRL; (2) be entitled to service-connected disability compensation from the VA; and (3) believe that one of more of the disabilities that VA has serviceconnected are combat-related. Veterans from all eras may qualify for CRSC. To receive CRSC, a veteran must submit a detailed application and supporting documents to the veteran s military branch proving that one of more of the veteran s service-connected disabilities are combat-related. NVLSP s Lawyers Serving Warriors project has hundreds of trained attorneys who can help veterans apply for this benefit, at no cost to the veteran. For example, one volunteer attorney in NVLSP s Lawyers Serving Warriors project was able to help a veteran apply for CRSC and receive on-going CRSC payments of $440 per month, in addition to a retroactive CRSC payment of $43,000 all of which is tax-free. To get more info and request free assistance with a CRSC application, go to Then under What We Do, click on Lawyers Serving Warriors. disabilities render him or her unable to secure and maintain substantially gainful employment, including describing the disabilities functional impairment and how that impairment affects physical and sedentary employment. Beaty v. Brown, 6 Vet. App. 532, 537 (1994); see also VA Training Letter at p. 5 (Sept. 14, 2010). According to VA Training Letter 10-07, the examiner should be requested to provide an opinion as to whether or not the Veteran s service connected disability(ies) render him or her unable to secure and maintain substantially gainful employment... and how that impairment impacts on physical and sedentary employment. VA Training Letter at p. 7 (Sept. 14, 2010) The medical opinions in this case did not evaluate whether the veteran s combined disabilities render him unable to secure and maintain gainful employment. The VA obtained various separate examinations, as explained above, but the various examiners only addressed in an individual, isolated manner, whether specific individual disabilities precluded employment. To illustrate this point, for example, let s examine the veteran s heart condition, chronic fatigue syndrome and urinary condition. The individual opinion regarding whether the veteran is entitled to TDIU for his heart condition states, [t]he veteran s CAD does not prevent him from working in a moderately physical or sedentary position. However, if the veteran is relegated to a sedentary job due to his heart condition, his ability to sit for hours in a sedentary job must be considered in the context of his chronic fatigue syndrome e.g. could the veteran actually sit upright and work for several hours at a stretch. According to the veteran, previously, his chronic fatigue syndrome forced him to take naps during the day when he worked from home. Whether the veteran also could sit for hours in a sedentary job, given his urinary condition, which involves urinary urgency and frequency, in combination with his fatigue, also must be considered. See, e.g., Hatlestad v. Derwinski, 3 Vet. App. 213 (1992) (a determination of a veteran s entitlement to individual unemployability must be considered in the context of the individual veteran s capabilities, regardless of 15