2013-04-24-Veterans Benefits an Overview
Seminars@Hadley
Veterans Benefits: An Overview
Presented by
Tom White and Steve Novak
Moderated by
Larry Muffet
April 24, 2013
Larry Muffet
Welcome to Seminars@Hadley. My name is Larry Muffet. I’m a member of Hadley Seminars team, and I also work in Curricular Affairs and Veterans Outreach. Today’s seminar topic is Veterans Benefits: An Overview.
Our presenter today is associated with the John Marshall Law School in Chicago and more particularly with John Marshall’s innovative Veterans Legal Support Center and Clinic. Steve Novak is supervising attorney for the center. Steve is going to share his hands on experience with veterans benefits and give you some information on what’s available out there and how to get started with the Veterans Administration. So now without any further ado, let me turn the microphone over to Steve and let him get us started with today’s seminar. Steve?
Steve Novak
Thank you, Larry. Before I get started, I’d like to thank both Larry and the Hadley School for having us out here today. The John Marshal Law School Veterans Legal Support Center and Clinic has been around since around 2008 and specializes in doing veterans benefits appeals. That’s the bread and butter of what we do. So today I’m going to be talking, as Larry mentioned – veteran’s benefits and overview talk about the different benefits that are available to veterans and get a little bit into the nitty-gritty of those benefits.
Before I begin, just want to let everyone know that today we’re mainly talking about federal benefits. So that’s benefits available from the United States Department of Veterans Affairs. Usually all the different states, they have their own department of veterans affairs, and there are definitely state benefits that are available just depending on what state you live in. So like I said, we’re going to be focusing on the federal VA, but if you’re interested in maybe learning what your state has to offer as far as state benefits then I suggest you get in touch with your state department of veterans affairs. So just to give you an overview of what I’m going to be speaking about, I’m going to be speaking about service connected benefits, get into some of the details of how a veteran qualifies for certain service connected status.
I’m going to be talking about non-service connected pension as well and hopefully a little bit about some of the opportunities in the VA healthcare system for veterans with vision impairment. So without further ado, I’m getting started with the service connected Federal VA benefits. One of the things that I want to begin with is achieving that veteran status in front of the VA. Obviously anyone who served we colloquially refer to them as a veteran. However, there are some requirements in order to achieve veteran status as far as VA benefits are concerned.
Now this whole system is supposed to be a parochial, non-adversarial system that’s supposed to be easy on the veteran. However, often that isn’t the case, and unfortunately, there’s a lot of law. There’s a lot of statutes. There’s a lot of regulations that go into that. I’m not going to cite statutes and regulations specifically, but for those of you who want more information or want to dig into the finer points, VA Law is located in Title 38 of both the United States code and the code of Federal regulations. That’s where you get the black letter law of VA benefits. If you’re interested, there’s a Court of Appeals for veterans claims which is as you get more advancedand you move up the levels of re-adjudication.
Then the court is the one that’s deciding claims. The court has their own court reporter, and in that court reporter you can find case law as well. So for our purposes today I’m not going to get into a lot of those very specifics, but if you want more information, those are definitely some good places to look. There are two kinds of requirements that go into achieving veteran status. The first being an active service requirement, and the second you need a qualifying discharge. To begin with the second one, a qualifying discharge, the various services have various levels of discharge that when a service member exits service then they will receive one of these discharge statuses.
Obviously there’s honorable, dishonorable, but there’s also other than honorable, general discharge, and a bad conduct discharge are some of the other ones that are available. Depending on what the discharge status is, it could or could not qualify or disqualify a veteran for VA benefits. This is an initial determination that the VA makes so if the veteran does not have a qualifying discharge then it could be a complete block to having any of the VA benefits that we’re going to talk about today. Obviously honorable qualifies a veteran for benefits. Usually under honorable conditions also qualifies a veteran for benefits, and then once you get into the other ones that’s where it gets a little tricky. Other than honorable, bad conduct, dishonorable discharge, it could be a disqualifier for VA benefits.
The VA makes a separate character of service determination. Obviously if you want to take it out of the VA’s hands, the VA has to accept what the military branch tells them, and so a way to fix a discharge status is to go through the Department of Defense, whatever branch that you came from, and upgrade that discharge status. Each of the branches has a discharge review board. Each of them have a board of corrections for military records. That’s a whole other process. Obviously you’re dealing with DOD. You’re not dealing with the DA. It’s a completely different ball game, but if you were to do that and succeed, the VA has to take that upgraded discharge at face value.
So say you had a bad conduct, an other than honorable, something like that, and you later get that discharge upgraded, then the VA can’t look back and say hey we really feel like your conduct should have prevented you from getting VA benefits. They have to accept that upgraded discharge. They also have to have active service. A lot of the benefits that we’re going to be talking about, particularly service connection spring from having active service. So if you’re a veteran of the National Guard, maybe you’re on the Reserves, just in the service while you’re state National Guard or while you’re not activated on the Reserves that will not be qualifying active service.
However, if you are activated, federally activated, as you know Iraq, Afghanistan, there’s been lots of activation of both the Reserves and National Guard units. That service while you’re activated counts for the purposes of these benefits. So launching into the actual benefits, the first one I want to talk about is service connection. If you’ve already had some dealings with the VA, you’ve already had some exposure to veterans benefits, and then you probably already know a little bit about service connection. Basically what you’re trying to show is that a disability that you currently suffer from, whatever it may be, is related to military service.
So a lot of the various requirements for service connection are going to be about establishing a link between that current disability, an event or an accident or an injury, whatever the case may be that happens in service. The way I like to when I teach the veterans benefits class at John Marshall, the way I like to break it down is into three main requirements. First you need a current disability. So again, you need to have a disability that you’re currently suffering from. Generally isn’t going to be a past disability, and it generally needs to be something that results in some sort of medical diagnosis. I think there’s been a few cases on whether something like just general pain qualifies for a current disability. Courts have held that without a diagnosis, a reason for that pain, then that’s not going to be a current disability.
A lot of the veterans that the clinic sees, they go to the VA as well for their healthcare, and so a lot of times it’s not a problem getting evidence of that current disability. The veteran is seeking compensation for something that happened to them in service and so they have that current disability. The second requirement is evidence of an in service incurrence, and so that generally is going to be evidence of maybe an injury, maybe an accident, some of sort of event that occurred which led to the veteran’s disability. A lot of times something does happen in service, and that service member goes to see a doctor, goes to see a medic, something like that, and there will be a record created. In those cases it’s pretty easy because then when you make your claim, the VA just tries to, or at least they’re supposed to, comb through the veteran’s service records. They have to find that record. Just some sort of complaints, some sort of record that the injury or the accident happened.
Where you get into trouble is, for whatever reason, it might be something that isn’t totally bothering the service member at the time. Maybe they just feel like it would be better to keep their mouth shut and tough it out. Then there won’t be that record created. So that’s where it gets more into the trying to argue your case. You’re allowed to provide lay evidence. There’s your own statement that an injury occurred, and then there can be statements of other service members who were there. Generally called buddy statements. It’s what those are referred to.
So it becomes maybe trying to track down those buddy states or just find some other way to prove that that in service occurrence occurred. And what we’re trying to do is we’re trying to relate what the veteran’s currently suffering from to what happened in service. Service connection, it results in a monthly benefit payment. You hear about a veteran. They’ll say they’re 10% service connected. They’re 30% service connected. The VA uses a ratings system that’s broken up in percentages in multiples of ten, and they try to base it off the severity of the symptoms. So you’ll hear those things, 10%, 30%, all the way up to 100% service connected.
The higher you go up, the bigger that monthly benefit is going to be. With vision loss in particular, there’s a scaled rating system and various degrees of vision loss will result in correspondingly higher percentages. Obviously with blindness in both eyes is 100% under the rating schedule. So that’s what we’re trying to do is we’re trying to match up what’s happening now, the current disability, to again something that happened in the service which brings me back to the third requirement. So you’ve got your current disability, you’ve got an event or something that happened in service, well you need a nexus is what it’s called between the two. So you need a link between what happened in the service and the current disability.
Now the language that we’re looking for that makes up this link is, “As likely as not.” So you need evidence that as likely as not your current disability is related to the in service incurrence. Now a lot of times you can imagine this is all medical type stuff we’re talking about and so this is going to be medical evidence. So you’re talking to doctors whether they be from the VA or otherwise about these various links. Doctors, particularly those outside of the VA system – but you’d be surprised. Even those inside the VA system don’t necessarily know that the language we’re looking for is, “As likely as not related.”
So doctors a lot of times are used to the term medical certainty, and they offer an opinion within medical certainty, whatever the case may be. That’s not what we’re looking for here. Again, “as likely as not” are the terms to go by. The way it’s been characterized is it’s 50% or more. So the doctor, the expert has a 50% or more chance of that he or she believes that these two things are related. There’s a few different ways to prove a nexus. There’s five different theories at least that we group a way to prove a nexus. The one that I’ve been talking about up until now is direct service connection. Basically and somewhat straightforward, you have that in service occurrence. You have the current disability and evidence that as likely as not the two are related. That’s considered direct service connection.
The second legal theory to prove that nexus is aggravation. The VA won’t pay out benefits for what’s called pre-existing conditions. All service members before they enter service will go through an entrance physical where their supposed to have a Department of Defense doctor check out all their different systems and note whether or not there are any existing disabilities or other things that might make it onto that chart. Obviously various people dispute the thoroughness of these examinations, but that’s what it’s supposed to be anyway.
However, the VA recognizes that even if you have one of these pre-existing conditions, maybe it’s some sort of bone weakness or maybe there might be some disability already present in the joints or something like that, that if your service aggravates that pre-existing condition then the VA will still service connect that condition based again on the theory of aggravation. Again, it’s as likely as not so medical evidence saying that as likely as not your condition, your current disability was aggravated by your military service. It’s a little more complicated. There’s some rabbit holes you can fall into about what a pre-existing condition is, whether or not something was noted, things like that, but just for our purposes know that aggravation is a possibility. Even though something might have existed, the doors might not be closed on you completely. The third legal theory is secondary service connection.
So we recognize that the body’s all linked up and disability in one area might affect another area. One disability might cause another, but to be able to service connect both of those disabilities, as long as that first one is already service connect. So using any of these other theories that we’re talking about, if you get a disability service connected, then if that disability causes another disability then that second one can be what’s called secondarily service connected. Sorry for repeating myself, but again the phrase is, “As likely as not.” As likely as not, this disability is connected, is related in some way to that initial service connected disability. On the fourth legal theory, a little more complicated is the service connection through legal presumption, meaning that there are certain ways that’s actually written into the law that if you have a qualifying disability and you have a qualifying in service event, then the connection will be presumed by law. So there’s no need to get medical evidence proving a legal presumption as long as you meet the requirements.
I’m going to spend a little bit of time talking about the biggest one, and it’s one that we deal with in the clinic quite a lot is based on Agent Orange. Obviously Agent Orange was the herbicide used in Vietnam and other areas as a defoliant and contains the chemical dioxin. Dioxin has secretly been linked to a wide variety of pretty serious disabilities. Some of the big ones, obviously several types of cancers, diabetes, things like that, and the way that you go about qualifying for this presumption based on Agent Orange is in the law. You have to have set foot on the land mass of Vietnam. That’s kind of the line that the VA has drawn, and that’s the line that’s been upheld by the courts.
There’s a period of years that coincide with the Vietnam War. As long as you set foot on Vietnam and show that, which is easy in some veterans’ cases, then if you also have a qualifying disability then that disability will be presumed to be service connected. And where we get these presumptions is just the difficulty for any one doctor to again be able to provide that nexus evidence. We know Agent Orange was used heavily. We don’t know exactly how bad and how much certain individual veterans were exposed to it, and we know it causes a lot of harmful effects, but you know there’s no way to tell whether or not in a particular veteran that the Agent Orange is causing the current disability that they’re having.
When I mentioned a qualifying disability for this purpose is that there’s a whole list of disabilities that the VA puts out, and as long as you suffer from one of those that’s on this list, then they’re going to presume that disability is service connected. New science comes out all the time. There’s new studies being done, and so that list is updated as well. Something that today might not be recognized as being related to dioxin, to Agent Orange, that’s not to say that in the future that connection won’t be apparent. One of the big ones at least with Agent Orange, diabetes, can lead to blindness in a lot of people, and so this would be one of the opportunities where you can kind of use these legal theories together.