Veterans Clinic ABC Training/Accreditation

Transcription

1 1 Veterans Clinic ABC Training/Accreditation Angela Drake Amy King office, daily

2 2 Things we will cover in this afternoon Overview of the Department of Veterans Affairs Basic Eligibility Requirements and Initial Considerations Service-Connected Disability Benefits Establishing Disability Percentage Ratings Pension Survivor Benefits *************************** Application for Benefits and Initial Administrative Appeal/FDC Board of Veterans Appeals Court of Appeals for Veterans Claims/Settlement and Arguments to make

3 3 Benefits Claims Hierarchy Supreme Court US Court of Appeals for the Federal Circuit US Court of Appeals for Veteran Claims Board of Veteran Appeals Regional Office

4 4 Veterans Benefits Supreme Manual the BIBLE Court Read the statutes and regulations US Court of too, find the manual provisions. Do the jigsaw Appeals puzzlefor the Federal Circuit US Court of Appeals for Veteran Claims Board of Veteran Appeals Regional Office

5 5 Overview of the Department of Veterans Affairs

6 6 DEPARTMENT OVERVIEW A. Federal Mission and Goals The Department's mission is to serve America's veterans and their families with dignity and compassion and to be their principal advocate in ensuring that they receive medical care, benefits, social support, and lasting memorials promoting the health, welfare, and dignity of all veterans in recognition of their service to this Nation. Office of Human Resources and Administration, Department of Veterans Affairs: 2010 Organizational Briefing Book 1, (August 2011).

7 7 DEPARTMENT OVERVIEW B. Federal Statistics VA is the second largest Federal Department and has hundreds of thousands of employees. VA has an enormous budget excess of $150 billion with over half going out in the form of checks to veterans and their families with the remainder mostly for health care VA is comprised of a Central Office (VACO), in Washington, DC, and field facilities three arms: 1. Veterans Health Administration (VHA), 2. Veterans Benefits Administration (VBA), and 3. National Cemetery Administration (NCA). FY2013 President s Budget, February 13, 2012.

8 8 Basic Eligibility Requirements & Initial Considerations

9 9 DEFINITION OF A VETERAN A. Who Is a Veteran? 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.S. 101(2); 38 C.F.R. 3.1(d) (2011).

10 10 ELIGIBILITY & CHARCTER OF DISCHARGE A. Character Of Discharge In order to satisfy the definition of a veteran, that individual must have been discharged or released from military service under conditions less than dishonorable. 38 C.F.R. 3.12(a) (2011) B. Note, there are various types Of Discharge 1. - i.e. other than honorable can still sometimes get VA benefits 2. - distinct from discharge upgrade

11 11 ACTIVE SERVICE REQUIREMENTS A. Active Military, Naval, Or Air Service Active military, naval, or air service is also required to qualify as a veteran for purposes of VA benefits. B. What Does Active Service Include? 1. Active Duty. 2. Training, when injury incurred or was aggravated. 3. Reserve and National Guard when called to serve on federal active duty.

12 12 WARTIME OR PEACETIME SERVICE A. Military Service Classified As Either Wartime Or Peacetime Service 1. This is an important distinction because significant advantages exist for veterans with wartime service. B. Congressionally Designated Wartime Periods (relevant): 1. World War II: December 7, 1941 December 31, Korean Conflict: June January 31, Vietnam Era: August 5, 1964 May 7, Persian Gulf War: August 2, 1990 date to be prescribed by Presidential proclamation.

13 13 WILLFUL MISCONDUCT A. What Is Willful Misconduct? An act involving conscious wrongdoing or known prohibited action. It involves a deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. 3.1(n) (n)(1) B. Impact A determination by the VA that injury or disease was the result of willful misconduct creates a bar to any benefits that may be based on the disability. 38 C.F.R. 3.1(n) 2011.

14 14 C. Examples Of What Is And Is Not Considered Willful Misconduct 1. Alcohol is willful misconduct. 38 C.F.R (c)(2) (2011). 2. Drug abuse is willful misconduct. 38 C.F.R (d) (2011). 3. Residuals of venereal disease is not willful misconduct. 38 C.F.R (c)(1) (2011). 4. Suicide is not considered willful misconduct, so long as the deceased veteran was of unsound mind at the time of suicide. 38 C.F. R (a) (b) (2011).

15 15 Establishing Service Connected Disability Benefits

16 16 COMPENSATION REQUIREMENTS Basic Prima Facie Case A veteran seeking service connected disability compensation must satisfy three fundamental requirements before the VA will grant compensation benefits. 1. There must be competent evidence of a current disability. 2. There must be medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury. 3. There must be competent evidence of a link or nexus between the inservice occurrence or aggravation of a disease or injury and the current disability.

17 17 Nexus - Five Legal Theories 1. Direct Service Connection. 2. Aggravation. 3. Presumptive Service Connection. 4. Secondary Service Connection. 5. VA Malpractice (Section 1151 Claim)

18 18 STATUTORY EVIDENTIARY STANDARD The standard of proof that a claimant must satisfy for an award of benefits is commonly called the benefit of the doubt standard. 38 U.S.C. 5107(b). This applies to all elements of service connection. AS LIKELY AS NOT

19 19 Establishing Disability Percentage Rating

20 20 Rating Schedule Once service connection is established, the VA assigns the appropriate disability rating based on impairment of earning capacity in civil occupations. Each disability relates to a series of diagnoses, each with a numerical diagnostic code. The degree of disability increases as the severity of the symptomatology becomes greater which will lead to a higher disability percentage rating.

21 21 SINGLE FINGER AMPUTATIONS Major/Minor 5152 Thumb, amputation of: With metacarpal resection / 30 At metacarpophalangeal joint or through proximal phalanx / 20 At distal joint or through distal phalanx / Index finger, amputation of With metacarpal resection (more than one-half the bone lost) / 20 Without metacarpal resection, at proximal interphalangeal joint or proximal thereto / 20 Through middle phalanx or at distal joint. 10 / Long finger, amputation of: With metacarpal resection (more than one-half the bone lost) / 20 Without metacarpal resection, at proximal interphalangeal joint or proximal thereto / CFR 4.71a (2010).

22 22 VA Math Direct Calculations of Multiple Disabilities Veteran has following ratings: 70%, 30%, 20% This does not mean the Veteran has a 120% disability rating. Instead: 1st Rating + ((100%- 1st Rating) x 2nd Rating)= Combined Rating 70% + (30% x 30%) = 79% 79% + (21% x 20%)= 83.2 %

23 23 Disability Percentages Levels of Payment The following are examples of the payments corresponding to levels of disability 10% Rating = $133/month(no dependents) 50% Rating = $836/month (no dependents) 100% Rating = $ 2,907/month (no dependents) asp Disability compensation is not taxable and (generally) is not subject to garnishment. 38 U.S.C. 5301(a)(1) (2003).

24 24 Special Evaluation Compensation Categories Total Disability Based on Individual Unemployability (TDIU) 1. The veteran cannot be engaged in and must be unable to engage in a substantially gainful occupation, AND 2. The veteran should have: a) One service connected disability rated above 60%, OR b) Two or more service connected disabilities, one of which is at least 40% and sufficient additional service connected disabilities to bring it up to a combined rating of 70%.

25 25 Later Evaluations of a Service-Connected Condition VA Discretion to Reduce or Increase a Disability Percentage The VA, in its discretion, may choose to reevaluate a service connected condition and change the disability rating. 38 C.F.R (a)(2010). VA can reexamine at any time but reexaminations are generally ordered if evidence indicates a material change in disability since the last evaluation Usually done 2-5 years within the last evaluation.

26 26 Special Monthly Compensation Above the percentages, veterans may be eligible for additional compensation. Examples: Loss of a Creative Organ: Housebound (or 100% =60%) $3,152/month Aid & Attendance: $100/month $3,504/month

27 Pension Benefits 27

28 1. World War II: December 7, 1941 December 31, Korean Conflict: June January 31, Vietnam Era: August 5, 1964 May 7, Persian Gulf War: August 2, 1990 date to be prescribed by Presidential proclamation. 28 General Requirements (1) wartime service that ultimately results in a discharge under other than dishonorable conditions, and (2) permanent and total disability (age 65 or nursing home or SSDI or SSI) and (3) demonstrated need. The VA determines need by calculating the income and net worth of the claimant, applying it to their chart. (4) Post 9/08/80 must have served for minimum period (24 mos or full period) Periods of War:

29 29 The Requirement of Permanent and Total Disability Veterans claiming entitlement to pension benefits must be permanently and totally disabled from non-service-connected conditions or a combination of non-service-connected and serviceconnected conditions. 38 U.S.C.S. 1521(a); 38 C.F.R (a) (2008). Veterans are presumed to be permanently and totally disabled if: 65 years of age or older A patient in a nursing home

30 30 The Requirement of Need Pension is a needs based program. Even if a veteran satisfies all of the other requirements, if the veteran's countable income exceeds the maximum annual pension rate (MAPR), a claim for improved pension will be denied.* -Current MAPR (with spouse) : $16,851

31 31 There are 3 Different Pension Programs All based on disability and need Improved Pension post January 1, 1979 Section 306 Pension (include income of spouse) Old-law Pension -(spouse income not included)

32 32 Countable Income Congress creates Maximum Allowable Pension Rate; add dependents Then deduct countable income on a prospective basis Income attributable to a veteran s dependants is counted as income for VA purposes and deducted from MAPR

33 33 Exclusions and Deductions from Income for Pension Purposes Sources of income excluded or deducted from income for VA improved pension purposes include*: 1.)Welfare 2.)Fire insurance proceeds 3.)Profit from sale of property 4.)Funds in joint accounts acquired by death 5.)Medical Expenses 6.)Interest accrued on retirement annuity accounts 7.)Expenses of last illness and burials 8.)Educational Expenses * 38 U.S.C.S. 501(a); 38 C.F.R (2010).

34 34 The Formula Used to Calculate Improved Pension Simple Income Example: If, for example, the annual income limit for a Veteran, as set by Congress, is $10,000 and your income is $7,000, your VA pension will be $3,000 ($10,000 - $7,000 = $3,000) paid in monthly installments

35 35 Special Monthly Pension (SMP) Special Monthly Pension (SMP) is awarded for disability levels exceeding permanent and total disability. There are two types of SMP: 1.) Housebound benefits (HB). These benefits are awarded when the VA determines that a veteran who has already been determined to be disabled, is now also permanently housebound (essentially confined to his or her home). 2.) Aid & Attendance (A&A). If the VA determines that a veteran, who has established entitlement to pension, needs the regular aid and attendance of another person.

36 36 Information That Must be Provided Annually by Current Improved Pension Beneficiaries The VA is authorized to require pension applicants and recipients to file annual reports detailing their previous year's income (as well as that of their spouses and dependent children) and estimating anticipated income for the current year. 38 C.F.R , (2010). The VA calls these reports Eligibility Verification Reports (EVRs) and uses them to determine whether applicants and current pension recipients are in fact entitled to the benefits they receive.

37 37 Failing to Report Income If a veteran fails to report income or underreports income to the VA, a debt may be created. This debt is usually referred to as an overpayment. An overpayment may occur when a veteran gets divorced and then forgets to inform the VA of the dissolution.

38 38 If VA Determines there is an Overpayment Dispute Validity or Amount of Debt No deadline for submitting this dispute However, if it is done within 30 days collection will be stayed Request a Waiver of Collection Must be submitted within 180 days of notice May not waive the debt, if there is any indication of fraud or bad faith

39 Survivor Benefits 39

40 40 Types of Survivor Benefits Accrued Benefits / Substitution Dependency and Indemnity Compensation (DIC) Death Pension

41 41 Qualifying Family Relationships Spouse Surviving Spouse Child Surviving Child Dependent Parent Surviving Parent

42 42 Surviving Spouse Spouse of veteran at time of veteran s death and lived with veteran continuously from date of marriage to date of veteran s death. Surviving Spouse MAY also have to prove one or more of the following: 1. Married at least one year prior to the veteran s death. 2. Continuous cohabitation with the veteran during the marriage; and 3. No remarriage after the Veteran s death.

43 43 Recent Supreme Court Decision On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the 14 th Amendment to the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of he same sex when their marriage was lawfully licensed and performed out of state.

44 44 VA Now Recognizes Same Sex Marriage Go to to see the guidance chart Note, VA will also recognize common law marriage if the state recognizes the same

45 45 Surviving Child Biological, Adopted, Stepchild Unmarried Qualifying Age Under 18 years of age Between if pursuing course of education 38 U.S.C.S. 104(a) Any age if child became incapable of self-support before reaching the age of 18. Helpless Child 38 C.F.R (a) (2010) See: 38 CFR 3.57 (2010)

46 46 Dependent or Surviving Parent These benefits are given only in limited circumstances. Key eligibility requirements: Parental relationship to the veteran Financial dependency of the parent

47 47 Accrued Benefits If a claim for benefits is pending when a claimant dies, and VA later determines that veteran would have been awarded benefits, survivor is entitled to accrued benefits. However, if Claimant dies before filing the claim for a VA benefit, the claim for the benefit dies as well. Richard v. West, 161 F.3d 719 (Fed. Cir. 1998).

48 48 Substitution If a claim for benefits is pending when the claimant dies and the claimant dies after October 9, 2008, a qualifying surviving family member can request to be substituted for the deceased claimant and continue to pursue the claim. Substitution vs. Accrued Benefits Accrued benefits claimant cannot submit any additional evidence Time limits for filing are the same Both require that a claim be pending

49 49 Pending Claim General Rule: Where the appeal period has not yet expired, case is still pending. 38 CFR 3.160(c) (d) (2010) Taylor v. Nicholson (2007) CAVC: Claim was still pending at time of veteran s death because he had 1 year from the date of the RO decision to file a Notice of Disagreement (NOD) (May 9, 2007) No

50 50 Dependency and Indemnity Compensation (DIC) and Death Pension Available to survivors of veterans whose deaths have been determined to be service connected. Eligible Parties: Surviving spouse Surviving child, or Surviving parents

51 51 Availability of DIC and Death Compensation Monthly DIC benefits available in two situations: Service-connected death of a veteran Veteran had a service-connected disability that was totally disabling for the last 10 years, 5 years, or, in some cases, one year of the veterans life. 38 U.S.C.S. 1318

52 52 Entitlement to DIC DIC claims filed after January 21, 2000: Veteran must have filed a claim for benefits while alive. If no claim was filed while the veteran was alive, there is no possibility of DIC benefits for survivors. 38 C.F.R (2007) NOVA II, 314 F.3d at 1378 DIC intended to provide continued support to survivors who had become dependent on VA disability compensation during veteran s lifetime.

53 53 Dependency and Indemnity Compensation Surviving Spouse is first in line to receive benefits VA will increase benefits to reflect surviving children If surviving spouse does not apply, or if there is no surviving spouse, a qualifying child is next in line to receive DIC benefits. 38 U.S.C.S. 1313

54 54 Filing for DIC No time limitation to file, But: If claim is filed within 1 year of death and granted, retroactive benefits will be awarded back to the 1 st day of the month following Veteran s death. 38 U.S.C.S. 5111(a), 5110(d). Claims filed after 1 year of death, and granted, only receive benefits dating back to the 1 st day of the month after the month in which the claim was received.

55 55 Surviving Spouse DIC Payment Rates Death on or after January 1, 1993: Basic Monthly Rate = $1215 $301 per additional child Death before January 1, 1993 DIC based on highest pay grade attained by deceased veteran. If this amount is less than the standard monthly base rate for deaths on or after January 1, 1993, VA pays the standard monthly base amount.

56 56 Surviving Child DIC Payment Rates Surviving benefits only payable to surviving children where there is no surviving spouse. 38 U.S.C.S. 1313(a) Children paid in divided equal shares set by statute. 1 child: $ children: $1,329 2 children: $ children: $1,512 3 children: $ children: $1,695 4 children: $1,146-8 children: $1,878

57 57 Restored Entitlement Program for Survivors Applies where service member died on active duty before 8/13/81 Designed to compensate for Social Security money lost as a result of the Consolidated Omnibus Budget Reconciliation Act of 1981 Can file claim anytime See VBM at 7.3.3

58 58 Death Pension Very similar to pension describe above Needs based No time limit within which claim need be made Surviving spouse is entitled Surviving dependent may be if under the care of a guardian See VBM 7.3.4