In a recent en banc decision (a case considered by all judges of the Court), CAVC provided some additional interpretation of pension eligibility. Mr. Chandler, a Korean War veteran, was granted a non-service-connected disability pension pursuant to 38 U.S.C. § 1521(a) when he was 57 years old, as VA determined at the time that his disabilities prevented him from working and rendered him permanently and totally disabled. When he was 71, Mr. Chandler filed a claim for a special monthly pension under 38 U.S.C. §§ 1521(e) and 1513(a). Section 1513(a) states that VA shall provide war veterans who are 65 years or older who meet the service requirements of section 1521 a pension at the rate described in section 1521 “under the conditions (other than the permanent and total disability requirement) applicable to pension paid under that section.” Now being over 65 and meeting the other requirements of § 1521(e), Mr. Chandler believed he was entitled to an increased special monthly pension. The Court agreed.
To determine whether Mr. Chandler was entitled to an increased special monthly pension because of his age, the Court had to analyze the interaction between sections 1513 and 1521 and also the effect of its previous decision in Hartness v. Nicholson, 20 Vet. App. 216 (2006). In Hartness, the Court found that if a veteran is 65 or older and meets the service requirements of section 1521 (wartime service), then the veteran is essentially presumed to be permanently and totally disabled due to age and does not need to otherwise prove that he or she is permanently and totally disabled or have a disability rated as permanent and total – as a veteran under 65 would have to prove in order to receive this pension rate. The Court noted that as Mr. Chandler now meets this age requirement, he appears to be entitled to a special monthly pension at a higher rate than previously. The Court found that VA’s position boiled down to that a veteran who is over 65, totally disabled, and began receiving a pension before turning 65 would receive a lesser pension than a veteran who is over 65 and not totally disabled when the pension payments began. The majority found that this would be an “absurd result” – stating that “[t]he idea that a group of totally disabled veterans would be treated less generously than an otherwise similar group of veteran who were not totally disabled is very difficulty to reconcile with the purpose of title 38.”
Additionally, the majority of judges concluded that Hartness should not be overruled, as the judges who dissented advocated. Neither party had argued for the overruling of Hartness. The Court grappled with this issue because the language Congress drafted in section 1513 is unclear. Both in Hartness and this case, the Court struggled to determine what Congress intended to do. It would not be surprising for Congress to eventually refine the language in the pertinent statutes, which could in turn lead to the Court making determinations contrary to Hartness and this case in the future. As noted by the Court in this decision, Congress has introduced legislation to nullify Hartness,but such legislation has failed to pass. For now, if you are a wartime veteran over 65 who receives a non-service connected pension, you should consider discussing with your VSO whether you might be entitled to an increased pension under section 1521.
You may find the following information useful as you work towards receiving benefits from VA:
Idaho Division of Veterans’ Services
1-800-827-1000.
TDD: 1-800-829-4833
Regional Office(s):
Boise VA Regional Office
444 W. Fort Street
Boise, ID 83702
Idaho has a number of services available to veterans, including:
Contact the Idaho Division of Veterans’ Services to find out what they can do for you!
The Idaho Department of Health and Welfare may also be able to help you as you go through your claims process. Find important services such as cash aid, food assistance, or energy assistance here.
If you are in need of medical treatment, please don’t wait. Although an average VA claim may take up to one year to be decided, your health comes first. In fact, receiving regular treatment for your service-connected disability may actually help you to win your claim!
Find a VA Medical Center or clinic near you here for any chronic or emergency medical attention you may need.
The Veterans Health Administration (VHA) recently clarified its policies on medical marijuana through a directive distributed by Dr. Robert Petzel, Under
Secretary for Health. The directive recognizes a conflict between some states’ laws and federal law. Currently, 14 states have authorized the use of medical
marijuana for medical conditions such as glaucoma, multiple sclerosis, and chronic pain; however, federal law classifies marijuana as Schedule I drug – meaning
that a medical use has not been accepted and that it is a crime to produce, distribute, or possess it. For many years, Veterans have faced issues in receiving VA care
when a private physician had prescribed medical marijuana. Additionally, some Veterans wanted to know whether VA doctors in one of the states with a medical
marijuana program could prescribe it or recommend participation in the program.
The directive specifies that Veterans who use medical marijuana are not prohibited from participation in VHA substance abuse programs, pain control programs, or
other clinical programs. However, the directive advises that changes to treatment plans might be necessary for those in a state medical marijuana program – for
instance, what other pain prescriptions are provided when medical marijuana is being used.
The directive also clarified what is NOT allowed,
including:
• VA medical providers may not provide
recommendations or opinions regarding a Veteran’s
participation in a state medical marijuana program;
• VA will not provide marijuana;
• VA will not pay for a marijuana prescription to
be provided by an outside source; and
• Veterans may not possess medical marijuana
on VA property and may be prosecuted if found to be in
possession.
Doctors, families, and friends are always telling wounded veterans that their disabilities shouldn’t stand in the way of life. Easier said than done. Recently, three American veterans proved the point: with only one good leg between them, they scaled Mount Kilimanjaro.
The three soldiers survived three different wars—Afghanistan, Iraq, and Vietnam—and were sent to Africa’s highest mountain by Disabled Sports USA, whose mission is to give opportunities for disabled individuals to develop independence, fitness, and confidence.
Kirk Bauer, the executive director of Disabled Sports USA, is a 62-year-old Vietnam veteran who lost a leg in 1969—and was one of the climbers. He explains that “if three amputees from three different wars and two different generations with literally one good leg can climb Kilimanjaro, our other disabled friends can get out and go hiking or go biking or swim a mile, can get out and lead a healthy life.”
Learning from Neil Duncan, the youngest climber, and his past attempt to scale Kilimanjaro, the group planned a route to accommodate their disabilities. Instead of three or four days to ascend, the veterans took six days and utilized a special permit to spend the night in tents at 19,000 feet. Duncan explains that “with the right planning and right preparation and right execution anything can be done.” He “knew it was attainable” and offers the expedition as proof that “you can bounce back from a failure in anything.”
Dan Nevins, who lost his legs in Iraq, had to be evacuated on the descent after developing a fever and a nasty cough, a side-effect of a pressure boil on one of his leg’s stumps. His experience highlights the special problems facing amputee hikers. Kilimanjaro’s lower paths are flat dirt, but the higher trails are a rock-and-scree blend that’s difficult for everyone, and even harder for those with prosthetic limbs. The veterans were constantly sliding backward, leading them to feel they were climbing the mountain twice. Going down was even harder. Duncan lost his footing and tumbled down in somersaults; Bauer’s artificial leg fell clean off.
But all three men agree the hardship was worth it: 45 “absolutely spectacular” minutes on Kilimanjaro’s summit and an unparalleled story of accomplishment.
You may find the following information useful as you work towards receiving benefits from VA:
Nebraska Department of Veterans’ Affairs
1-800-827-1000.
TDD: 1-800-829-4833
Regional Office(s):
Lincoln Regional Office
5631 South 48th Street
Lincoln, NE 68516
Nebraska has a number of services available to veterans, including:
Contact the Nebraska Department of Veterans’ Affairs to find out what they can do for you!
The Nebraska Department of Health and Human Services may also be able to help you as you go through your claims process. Find important services such as cash aid, energy assistance, or in-home care here.
If you are in need of medical treatment, please don’t wait. Although an average VA claim may take up to one year to be decided, your health comes first. In fact, receiving regular treatment for your service-connected disability may actually help you to win your claim!
Find a VA Medical Center or clinic near you here for any chronic or emergency medical attention you may need.
The U.S. Court of Appeals for the Federal Circuit (“Fed. Cir.”) recently issued a precedental decision that involved the application of the “implicit denial rule.” Generally, when a veteran files either a formal or informal claim, the claim is pending until it is 1) finally adjudicated, and 2) the veteran is notified of the denial. There are circumstances, however, where a claim is “deemed” to have been denied and finally adjudicated even if VA did not explicitly address that claim in the denial – this is the implicit denial rule.
In Munro, the veteran argued that the implicit denial rule could not appeal to informal claims. However, the Fed. Cir. held that the rule can be applied to end any pending claim whether formal or informal. In determining whether the implicit denial rule should apply to Munro, the Fed. Cir. relied heavily on its prior consideration of the rule, particularly in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In Deshotel, the Fed. Cir. held that where a veteran files closely related claims and VA explicitly denies only one of these claims, the implicit denial rule should be applied to treat the other closely-related claims as also denied. The Fed. Cir. also reviewed other cases to conclude that the implicit denial rule requires that the denial of a claim will end the pending status of any other identical pending claims. The Fed. Cir. found that Mr. Munro’s informal claims were identical to the formal claim that VA later denied, so the implicit denial rule applied here and his informal claims were deemed to be denied. It also found that from the specifics in VA’s denial, Mr. Munro should have known that his informal claim was also being denied, as the documents he submitted as the informal claims were referenced in the decision.
The documents Mr. Munro asserted were informal claims consisted of VA medical records. The Fed. Cir. noted that veterans with service-connected conditions routinely visit VA medical centers and for VA to treat each medical record as an individual claim would be unnecessary and unreasonable.
While the Munro decision was not favorable to the veteran, it can provide some guidance for others. First, be as specific as possible when submitting a claim to VA. Rather than just sending in some medical records and later trying to sort out the nature of the claim, explain your claim and what the records show upfront. (For instance, stating something like, “This is my informal claim for an increased rating for my service-connected PTSD. The attached VA treatment records show that my condition has become more severe.”).
Also, if you receive a denial from VA that you do not agree with or understand, let them know about it immediately. Mr. Munro faced additional burdens because he did not timely appeal denials and they became final decisions. If you are not satisfied with your decision from VA, keep appealing and keep the claim alive.
VA is making some steps into the digital age by exploring options for a paperless claims processing system. The regional office in Providence, R.I. was selected as the test cite for this new approach, lauded as a “major milestone” by Secretary Shinseki.
The pilot program, initially focusing on compensation benefits, should kick off in November. Its test run is scheduled to conclude in May 2011, but additional pilots are planned in other areas before the VA brings paperless processing to all 57 regional offices. Shinseki has already made some moves to allow online filing of initial disability claims; this program should do much more—although there aren’t many details about the logistics yet.
Providence’s paperless program is only one part of the Veterans Benefits Management System—one of more than 30 initiatives that Shinseki has in the works to break up some of the backlog that has plagued VA for decades. Shinseki sees a promising future: his goal is that by 2015, VA will process all claims within 125 days with 98% accuracy.
Senator Jack Reed of Rhode Island (D) announced yesterday that the Providence Regional Office will be the first RO in the nation to install a new Veterans Benefit Management System (VBMS) designed to reduce the backlog of Veteran’s disability claims. This new program will begin the process of transitioning the entire VA to a paperless benefits processing system. A paperless system will be used to track Veterans more effectively as claims move through the system. The system is designed to help cut down on paperwork and wait times that often leave Veterans waiting months for a decision.
Senator Reed, a senior member of the Appropriations subcommittee that oversees the Veterans Administration, has stated that he is “please the Providence VA will receive new tools and technology to reduce the backlog of Veteran’s claims and improve communication with our Veterans.” Senator Reed has also helped to boost federal VA funding by 15 percent last year.
Veterans Affairs Secretary Eric Shinseki has made eliminating the backlog a top priority. Alongside this initiative, the VA has hired over 3,500 more people to work in the Veterans Benefits Administration and has already started accepting on-line applications for initial disability benefits. Secretary Shinseki has stated that he hopes to completely eliminate the backlog by 2015. For more information on this story, click here.
The CDC estimates that roughly 20% of the 30,000 suicides that take place in the U.S. each year are veterans. Under the current Administration, there has been a renewed effort to reduce this staggering statistic. One of the most evident products of this commendable campaign is a suicide prevention hotline. The New York Times recently published a moving report about a typical day at a hotline center. The article is available here. While critics find the hotline to be a last-ditch approach to reach those on the brink, it has proven to be effective by some objective measures. Since 2007, the hot line has been responsible for 10,000 rescues. Additionally, it is often a gateway to steer callers to other programs that they were unaware of and could benefit them.
Please, if you are a veteran finding yourself in crisis, call:
1-800-273-TALK (8255) and press 1 to be routed to the veterans’ hotline.
Trained counselors are available 24/7. Additionally, if you are a veteran in emotional distress, homeless, or on the verge of becoming homeless, a live chat is available for you here.
On August 2, the U.S. Court of Appeals for the Federal Circuit ordered VA to issue final regulations within 30 days adding ischemic heart disease, Parkinson’s disease, and B-cell leukemias to the list of disabilities presumptively caused by Agent Orange exposure. The court issued a writ of mandamus directing this action based on a petition filed by four veterans organizations, led by Paralyzed Veterans of America, after VA refused to issue the regulations by the June 23 statutory deadline. VA had claimed that the need for review of the regulations by the Office of Management and Budget trumped the statutory deadline. See the court’s order here: http://www.cafc.uscourts.gov/images/stories/opinions-orders/2010-m949.8-2-10.1.pdf
