Department Service Officer Newsletter
Volume 4, Issue 2
- Update
September
1, 2007
Department Service Officer Newsletter
Volume 4, Issue 2
- Update
September
1, 2007
Department
Service Office Business Hours: The Department Service Office will be open
each Monday through Friday from 8:00 AM until 4:00 PM. Appointments are not necessary for visits.
You may contact the Department Service Office by calling (603) 222-5784, faxing
(603) 222-5787; or by using the following e-mail address:
§
American
Legion representation: Before
The American Legion may be recognized by the VA as the claimant’s
representative, VA form 21-22, “APPOINTMENT OF VETERANS SERVICE ORGANIZATION AS
CLAIMANT’S REPRESENTATIVE”, ALSO KNOWN as the Power of Attorney (POA) form,
must be completed designating “The American Legion as the only
representative, and must be signed by the claimant or fiduciary (38 Code of
Federal Regulations § 14.631). This form
should be submitted to the VA for attachment to the claims folder through an
American Legion Accredited Representative.
A POA may be
accepted by The American Legion only from individuals in the following
categories:
(1)
the veteran;
(2)
an incompetent veteran’s
legally constituted guardian or spouse, parent, other near relative, or manager
of a hospital or institution in which such veteran is maintained, In the event
that a guardian is appointed by a court of competent jurisdiction, an existing
POA shall terminate and it will be necessary for the guardian to execute a new
POA reappointing the American Legion,
(3)
a deceased veteran’s dependents
or designated beneficiaries, or, if incompetent, the fiduciaries of such
persons; and
(4)
persons entitled to
reimbursement for expenses incurred in connection with the last sickness and
burial of the veteran.
When the
American Legion accepts a POA from an eligible claimant, it assumes an
obligation to provide “fair representation” and assistance and counseling to
assure that the claimant receives full Due Process. “Fair representation” means
taking no act inconsistent with the furtherance of the claimant’s interest.
There is also an obligation to the claimant not to make any unauthorized
disclosures of information, as the custody of records is privileged and private
and they must be guaranteed.
It should be
understood, however, that The American Legion does reserve the right to revoke
a POA at any time.
The
following are examples of reasons for withdrawing representation:
(1)
Tampering or altering of
evidence, or providing false information of evidence;
(2)
Refusal to cooperate or
establish a satisfactory and effective working relationship with the
representative;
(3)
Threats or acts of violence
towards the representative and co-workers, the Department and National
Organizations, or VA personnel;
(4)
Harassment of representatives
either by phone or in person;
(5)
Further representation may give
rise to conflict or interest or violation of privacy;
(6)
The claim has no basis in law
or fact in which it can be granted;
(7)
The benefits being received are
contrary to law or regulation;
(8)
Representation of a co-worker
or friend can present the risk of inadvertent disclosure of confidential
information. It may also create unreasonable expectations and disappointments.
A Post
Service Officer can provide you with this form and fill it out with/for you;
but doing that does NOT mean that the American Legion has accepted
responsibility for prosecuting your Claim.
You must communicate directly with the Service Office.
In addition,
you must submit all documentation supporting your Claim or any response to VA
Benefits communications ONLY to the Service office. If you don’t, the Legion cannot be
responsible for the outcome of your Claim because You will have failed to allow
us to properly construct the argument upon which your Claim is based.
§
American Legion Policy regarding
attorney referrals: As mandated
by Public Law 109-461, effective June 20, 2007, attorneys are now permitted to
represent veterans for a fee before the Department of Veterans Affairs (VA)
after a notice of disagreement (NOD) is filed with the agency of original
jurisdiction. The American Legion National Headquarters has subsequently been
contacted by attorneys requesting that we refer veterans to them for
representation once a NOD has been filed.
Although veterans are now free to hire attorneys after a NOD has been
filed, The American Legion will continue to provide the best possible
representation to those who elect The American Legion as their accredited
representative in VA-related matters.
The American Legion policy does not permit accredited American Legion
representatives to refer any claimant seeking VA benefits to an attorney. Moreover, accredited American Legion
representatives are not to make a specific referral to an attorney at any time.
§
Changing Power of attorney while a case
is in appellate status: The American
Legion, VA & R Commission, does not desire to accept a POA while another
service organization is actively representing a claimant whose case is in
appellate status either at the VA Regional Office (RO) or before the Board of
Veteran Appeals (BVA). It is, therefore,
recommended that the claimant be discouraged from changing POA while an appeal
is pending. If the American Legion
representative believes this organization can be of material assistance to the
claimant, the change may be accepted by a good cause motion, in writing, from
the claimant pursuant to 38 C.F.R. § 20.1304 (a)(b). This also includes any appeals remanded by
the RO by the BVA or remanded by the U.S. Court of Appeals for Veterans Claims (CAVC)
the BVA. The fact that The American
Legion accepts the POA does not guarantee the VA in conjunction with the
current appeal will accept it (38 C.F.R. § 20.1304 (b)(1).
§
Update
on blue water veteran issues: The General
VA Rules on Agent Orange;
What Does “Service in the Republic of Vietnam” Mean? Many veterans who served in
the waters near Vietnam (known as “Blue Water” Navy veterans) currently suffer
or have died from one of the diseases that the VA currently recognizes as
related to Agent Orange exposure. From 1991 to 2002, it was relatively easy for
Blue Water Navy veterans to win a claim based on a disease associated with
Agent Orange exposure.
During these
11 years, the VA Adjudication Procedures Manual M21-1 (called the M21-1 Manual)
-- which is the “Bible” for those VA workers who decide claims at the 57 VA
regional offices -- provided that a veteran qualifies as having “served in the
Republic of Vietnam” if the veteran received Vietnam Service Medal, and either
stepped foot on land or served on a “ship [that] was in the waters offshore
Vietnam.” VA ADJUDICATION PROCEDURES MANUAL M21-1, Part III, para. 4.24g.
(Change 76, June 1, 1999).
The VA Does an About Face in 2002: In
February 2002, however, the VA did an about face. The VA amended the M21-1
Manual so that Blue Water Navy veterans could not win their claims unless they
actually stepped foot on land in Vietnam. Although the law requires the VA to
give the public advance notice and an opportunity to comment before it changes
its rules, the VA changed the M21-1 Manual without any input from the public.
As a result of
the change in rules, the 57 VA regional offices denied benefits to Blue Water
Navy veterans whose claims were pending as of, or filed after February 2002 --
unless the veteran could prove to the VA’s satisfaction that he stepped foot on
land in Vietnam. To make matters worse, in many cases in which a Blue Water
Navy veteran had already won disability benefits under the pre-2002 rules, the
VA initiated proceedings to overturn the previous grant of benefits so that
these veterans would not receive additional benefits in the future.
National Veterans Legal Services Program (NVLSP) Takes VA to
Court and Wins: Many Blue
Water Navy veterans whose claims were denied by a VA regional office due to the
2002 change in the VA’s rules appealed their cases to the Board of Veterans’
Appeals (the BVA). The BVA usually denied their claims as well. NVLSP agreed to
help some of these veterans by appealing their case to the U.S. Court of
Appeals for Veterans Claims.
In one of these
cases, NVLSP represents Jonathan L. Haas, Commander, USNR (Retired), who served
in the waters near Vietnam and received the Vietnam Service Medal. The BVA had
denied Mr. Haas’ disability benefits claim for type 2 diabetes and its
residuals, ruling that he did not serve in the Republic of Vietnam because he
did not step foot on land in Vietnam. The Veterans Court agreed to decide Mr.
Haas’ appeal by a panel of three judges – so that the Court’s decision would
control all of the claims filed by all Blue Water Navy veterans.
On August 16,
2006, the panel of the Veterans Court unanimously invalidated the VA’s 2002
set-foot-on-land requirement. The Court ruled that service on a ship in the
waters offshore Vietnam qualifies as service in the Republic of Vietnam. As a
result, the Court reversed the Board’s decision denying benefits, and ordered
the VA to award Mr. Haas disability benefits for diabetes and its residuals.
The VA Refuses to Follow the Veterans Court’s Decision: Several
weeks later, the VA appealed the Veterans Court’s decision to the U.S. Court of
Appeals for the Federal Circuit. In addition, VA Secretary R. James Nicholson
took steps last fall to make sure that no Blue Water Navy veteran would receive
any VA benefits while VA’s appeal remained pending before the Federal Circuit.
He ordered all VA regional offices and the BVA not to decide any claims filed
by Blue Water Navy veterans while VA’s appeal remained pending, unless the
veteran proved that he set foot on land in Vietnam.
One problem
with Secretary Nicholson’s decision to impose a moratorium on VA
decision-making is that the law does not allow the VA Secretary to impose a
moratorium unless he first requests and obtains permission from the Court of
Appeals for Veterans Claims to do so. Secretary Nicholson ignored this law by
unilaterally imposing a moratorium without even asking for Court approval.
NVLSP Returns to the Veterans Court to Sue Secretary Nicholson: Shortly
after Secretary Nicholson imposed a moratorium on deciding the claims of Blue
Water Navy veterans, NVLSP filed a lawsuit with the Veterans Court on behalf of
The American Legion and Nicholas Ribaudo, a Blue Water Navy veteran whose claim
was pending at the BVA. NVLSP asked the Veterans Court to order Secretary
Nicholson to withdraw his moratorium on decision-making because he did not have
the legal right to do this unless he first asked the Veterans Court for
permission to impose a moratorium and convinced the Veterans Court that a
moratorium was appropriate in this particular situation – actions that
Secretary Nicholson never took.
On January
9, 2007, the Veterans Court granted NVLSP’s request. The Court rescinded
Secretary Nicholson’s moratorium, and ordered the BVA to decide appeals from
Blue Water Navy veterans according to first-in, first-out docket order, and,
when deciding these cases, to apply the Veteran Court’s precedent decision in
Mr. Haas’ case even though the VA had appealed that decision to a higher court.
But the
January 9th Veterans Court decision was not a total victory for Blue Water Navy
veterans. The Court also gave Secretary Nicholson another chance. The Court
stated that if he filed a request with the Veterans Court in the future for
permission to impose a moratorium, the Court would consider whether a
moratorium on VA decision-making was appropriate, after giving NVLSP a chance
to explain in writing why there should be no moratorium. One week later,
Secretary Nicholson did exactly that – he filed a request with the Veterans
Court for permission to impose a moratorium on VA regional office and BVA
decision-making on claims filed by Blue Water Navy veterans while the VA’s appeal
of the decision in Mr. Haas’ case remained pending before the Federal Circuit.
Ten days
later – and before the deadline for NVLSP to file its written response to
Secretary Nicholson’s request – the Veterans Court issued an Order stating that
it intended to decide the Secretary’s request for a moratorium quickly, after
receiving NVLSP’s written response. But meanwhile, the Court stated, it ordered
a moratorium on regional office and BVA decision-making on Blue Water claims on
a temporary basis, until the Court decides whether it is appropriate to order a
moratorium for the entire period while VA’s appeal remains pending before the
Federal Circuit.
On February
2, 2007, NVLSP filed legal documents opposing Secretary Nicholson’s request for
a moratorium.
Unfortunately,
on April 13, 2007, the Veterans Court granted the VA’s request for a moratorium
on regional office and BVA decision-making on all Blue Water Navy veteran
claims while the VA’s Haas appeal remains pending at the Federal
Circuit. However, the Court stated that, “[t]he Secretary … may, upon the
motion of an appellant, advance for consideration and determination compelling
cases on the [BVA’s] docket as of the date of this order … to which our
decision in Haas will apply.”
Therefore,
Blue Water Navy veterans or their survivors whose cases are at the BVA may file
motions to advance their cases for early consideration and determination in
accordance with the Haas decision. Such a motion may only be
granted if the appellant can demonstrate that he or she is seriously ill, under
severe financial hardship, or if other sufficient cause is shown.
Unfortunately, nothing in the Court’s Order requires the BVA to grant such a
motion for advancement. Only pages 1-10 represent the binding
authority of the Court, while pages 11-29 are the concurring and dissenting
opinions of some judges.
Summary of the Current Status of the Haas Case (as of July 18,
2007): The VA’s
appeal of the Veteran Court’s Haas decision to the U.S. Court of Appeals for
the Federal Circuit: the VA filed its initial brief in the Federal Circuit on
March 7, 2007. NVLSP filed their brief
on behalf of Mr. Haas on June 4, 2007. (Briefs are available on the NVLSP
website.)
The VA has
the opportunity to file a reply brief, which was due on July 6, 2007.
However, the VA has requested an additional 14-day extension. The Court
will almost certainly grant this request, so the new deadline for filing the
reply brief will be July 20, 2007. The VA has indicated that this will be
the final extension they will request.
§
V.A. Must Pay Retroactive Benefits to
Vietnam Veterans Suffering from C.L.L: The Ninth
Circuit Court States; “This case involves our
government’s treatment of its veterans who contracted serious ailments as a
result of their exposure to Agent Orange. . . It is a disturbing story, and the
performance of the United States Department of Veterans Affairs (VA) has
contributed substantially to our sense of national shame.”
A consent
decree approved by the District Court provided that as soon as the VA issued
new determinations designating particular diseases as
"service-connected," it had to re-adjudicate the claims of
veterans suffering from them if their previously filed claims were denied or
were still pending, and must then pay them retroactive benefits.
In 2003, the
VA issued a regulation finding Chronic Lymphocytic Leukemia (CLL) a disease
associated with dioxin, but VA refused to re-adjudicate the prior claims of
Vietnam veterans suffering from CLL.
Technical Issue & Holding: Issue Before
Ninth Circuit: Does the Consent Decree apply to the re-adjudication of
veterans' disability claims whenever new diseases are found to be associated
with AO exposure after the original expiration date of the Agent Orange Act?
Holding:
VA is obligated to pay disability benefits to the veterans suffering from CLL as a result of their
exposure to Agent Orange. The district court reasonably and correctly
interpreted the Consent Decree.
“The answer to the legal question on this appeal is quite
apparent:” VA is
obligated by law to pay disability benefits to
veterans suffering from CLL as a result of exposure to Agent Orange, a
noxious chemical widely used by our government in the course of the Vietnam
war.
Three
different Congresses in three different decades
enacted legislation signed by three different presidents, designed to
ensure the payment of such benefits to veterans afflicted with Agent
Orange-related ailments.
What is difficult for us to comprehend is: Why the VA . . . continues to resist implementation
so vigorously, as well as to resist equally vigorously the payment of
desperately needed benefits to Vietnam veterans who fought for their country
and suffered grievous injury as a result of our government’s own conduct.
Whether
the Vietnam War was just or not, whether one favored or opposed it, one thing
is clear. Those young Americans who risked their lives in their country’s
service and are even today suffering greatly as a result are deserving of
better treatment from the VA than they are currently receiving.”
We would hope that this litigation will now end: “That our government will now respect the legal obligations it undertook in the Consent Decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.”
§
Information about Filing a Motion to
Advance a Case for Early Consideration and Determination:
We recommend that veterans or their
survivors who are considering filing a motion to advance their case on the
BVA’s docket seek the assistance of a veterans service organization.
The motion
must be in writing and identify the specific reason why advancement on the
docket is being sought, the name of the veteran, the name of the appellant if
other than the veteran, and the VA claims number. Please do this through your Service
Office.
The motion
must be filed with the Director, Management and Administration (01E), Board of
Veterans’ Appeals, 810 Vermont Avenue, N.W., Washington, DC 20420.
In order for
a case to be advanced on the BVA’s docket, the claimant typically must
demonstrate that he or she is seriously ill or under severe financial
hardship. Cases may also be advanced due to a claimant’s “advanced age,”
which is defined as age 75 or older.
The motion
should contain as much detail as possible about the claimant’s illness,
advanced age, and/or financial hardship. To improve the chances of having
the motion granted, supportive documentation should be included, such as a
letter from a physician detailing the severity of the claimant’s illness and
the likely prognosis. Supportive evidence of severe financial hardship
could include letters from banks or other creditors threatening foreclosure of
real estate, eviction, or repossession of automobiles or other significant
property.
§
VA Medical Center - Financial
Assessment: Nonservice-connected
veterans and those rated 0% non-compensable service-connected are subject to
the VA “means test” provisions of the enrollment application. The “means test”
eligibility assessment includes information about Social Security, U.S. Civil
Service retirement, U.S. Railroad Retirement, military retirement, unemployment
insurance, any other retirement income, total wages from all employers,
interest and dividends, workers’ compensation, black lung benefits and any
other gross income for the calendar year prior to application for care. Also
considered are assets such as the market value of stocks, bonds, notes, individual
retirement accounts, bank deposits, savings accounts and cash. In making the
assessment, the income of the patient’s spouse and dependent children also are
considered.
“Means
test” thresholds are adjusted annually and announced in January. Veterans below
the means test threshold are enrolled in Priority Group 5.
Veterans
above the VA threshold but below the HUD geographic index threshold are
enrolled in Priority Group 7 and must agree to make specified co-payments for
their treatment. As of January 17, 2003 veterans whose income and net worth are
above the HUD index may not enroll (unless they can qualify under
categories 1 to 7).
Co-payments: Nonservice-connected
veterans with income and net worth above either of the two “means tests’”
thresholds and who were “grandfathered in” at the time of the January 17, 2003
veteran exclusion, as well as those zero percent service-connected
non-compensable veterans needing care for any nonservice-connected disability
are subject to co-payments.
The VA Medical
Centers use the new means test thresholds below to determine eligibility
requirements for healthcare services.
§
New
Means Test Thresholds: Public
Law 107-135, the Department of Veterans Affairs Health Care Programs
Enhancement Act of 2001, directed the Department of Veterans Affairs (VA) to
implement a Geographic-based Means Test (GMT) (see 38 U.S.C. Section
1705(a)(7)). VA uses the Department of Housing and Urban Development's (HUD)
``low-income'' geographic-based income limits as the thresholds for VA's GMT. A
veteran's income from the previous year is compared with the appropriate GMT
threshold for the previous fiscal year to determine if the veteran should be
placed in priority category 7. The ``low income'' geographic-based income
thresholds for FY 2006 can be found at:
http://www.va.gov/healtheligibility/Library/pubs/GMTIncomeThresholds/
The
following new Means Test Thresholds are effective January 1, 2007, through
December 31, 2007:
(1) Veterans with
No Dependents:
(a) Below Means Test Threshold: $27,790
(b) Above Means Test Threshold: $27,791
(2) Veterans with
One Dependent:
(a) Below Means Test Threshold: $33,350
(b) Above Means Test Threshold: $33,351
(3) Veterans with
Two Dependents:
(a) Below Means Test Threshold: $35,216
(b) Above Means Test Threshold: $35,217
(4) Veterans with
Three Dependents:
(a) Below Means Test Threshold: $37,082
(b)
Above Means Test Threshold: $37,083
(5) Veterans with
Four Dependents:
(a) Below Means Test Threshold: $38,948
(b) Above Means Test Threshold: $38,949
(6) Veterans with
Five Dependents:
(a) Below Means Test Threshold: $40,814
(b) Above Means Test Threshold: $40,815
(7) Dependent
Threshold Amount Increase (above two dependents): $1,866
(8)
Child Income Exclusion:
$8,750
(9)
Medicare Deductible: $992
(10)
Income and/or Asset threshold for Net Worth Development: $80,000
(11)
Maximum Annual Rate of Pension (Base Rate):
(1) The base rate for
a single veteran with no dependents is $10,929.
Note: This rate is also
used to determine if certain veterans are subject to co-payments for Extended
Care Services.
(2) The base rate with
one dependent is $14,313.
(3) Add $1,866 for
each additional dependent.
(12)
The Medication Co-payment Threshold effective date is January 1 of each year:
(a) ``Below the means test threshold'' is defined as those
veterans whose attributable income and net worth are such that they are unable
to defray the expenses of care; therefore, they are not subject to co-payment
charges for hospital and outpatient medical services. Within the Veterans
Health Information Systems and Technology Architecture (VistA) system such
veterans are designated as ``Means
Test Co-pay Exempt.''
(b)
``Above the means test and GMT threshold'' is defined as those
veterans whose attributable income and net worth are such that they are able to
defray the expenses of care; therefore they must agree to pay a co-payment for
hospital care and outpatient medical services. Within the VistA system these
veterans are designated as ``Means
Test Co-pay Required.''
(c) ``Above the means test and below the GMT threshold'' is defined as those veterans whose
attributable income and net worth are such that they are able to defray the
expense of care, but whose inpatient medical care co-payments are reduced 80
percent. These veterans must also agree to pay a co-payment for hospital care
and outpatient medical services. Within the VistA system these veterans are
identified as ``GMT Co-pay Required.''
§