The Veterans Law and Benefits Blog

The Lewis B. Puller, Jr. Veterans Benefits Clinic

Category: Uncategorized (page 1 of 7)

Addressing Homeless Veterans

Written by William & Mary Student Haley Morton

Veterans make up a disproportionate segment of America’s homeless population.[1] In many cases, veterans are at risk for homelessness because of PTSD and disabilities occurring in service. In fact, nearly half or more of newly-homeless veterans were diagnosed with a mental health disorder before separating from service.[2] Because of sacrifices made by the men and women who serve our country, some of which led to veterans being at risk of unstable housing, the government should bear the responsibility to find solutions to remedy veterans homelessness.

The federal government has taken initial steps to solve the problem. In 2009, the Obama Administration announced its goal to end veteran homelessness with “Opening Doors.”[3] This policy mobilizes communities, local governments, and employers to work together to end homelessness and create more stable societies.[4] On its face, the goal of eradicating homelessness may cause some to worry about the cost of such efforts. Yet studies show that it is not only more compassionate, but also more cost-effective in the long run for the VA, state governments, and local communities to eradicate homelessness than it is to leave homeless veterans seeking healthcare without stable housing.

There are two approaches to veteran homelessness. The first is a contingency-based program, where veterans must successfully complete substance abuse programs and mental health treatment, when necessary, to secure permanent housing.[5] The second is a “Housing-First” program that provides veterans with stables and permanent homes first and subsequently offers treatment services as needed. So far, Housing-First has resulted in more veterans sustaining permanent housing and has lowered the overall healthcare cost. In the contingency-based program, the average cost of healthcare for a homeless veteran is approximately $23,472.08 per year.[6] When veterans suffer from substance abuse and mental health issues and are offered contingency-based housing, they are not likely to continue with the program, due to continued relapses or other incapability.[7] However, when veterans were provided with permanent housing first, without contingencies, they were more likely to complete treatment programs.[8]

More importantly, average health care costs for previously-homeless veterans decreased to $16,041.25 per year.[9] Additionally, emergency room visits and hospitalizations decreased.

[1] “Homeless Veterans Fact Sheet.” National Coalition for Homeless Veterans, 2016,

http://www.nchv.org/images/uploads/HomelessVeterans_factsheet.pdf

[2] Media Information, National Coalition for Homeless Veterans, 2016, http://nchv.org/index.php/news/media/media_information/#Risk%20Factors

[3] “VA Is Working to End Homelessness Among Veterans.” U.S. Department of Veterans Affairs,

2016, http://www.va.gov/homeless/about_the_initiative.asp

[4] O’Toole, Thomas P. “Innovative Efforts to Address Homelessness Among Veterans.” North

Carolina Medical Journal, vol. 76 no. 5, 2015, pp. 311-314.

[5] Id.

[6] U.S. Department of Veterans Affairs, Housing First Implementation Brief, VA National Center

on Homelessness Among Veterans, 2014, http://www.va.gov/homeless/nchav/docs/Housing%20First%20Implementation%20brief.pdf

[7] O’Toole, supra note 3.

[8] Id.

[9] U.S. Department of Veterans Affairs, supra note 5.

Five of the Best Jobs for People with PTSD Who Don’t Feel Comfortable Working with the Public

Guest blogger Julia Merrill offers some tips for people with PTSD seeking employment.  Blog posts reflect, of course, the views of the writers and not necessarily those of the Puller Clinic.

 

Merrill

Photo by Pixabay

PTSD, or Post Traumatic Stress Disorder, affects nearly 8% of Americans and can occur after several different events, such as military service, car accidents, or childhood trauma including various types of abuse.

Living with PTSD can be full of daily challenges. For some, the condition can make dealing with the public or public situations on a regular basis overwhelming. Many with the condition have difficulty being in social situations because certain events or people can trigger memories, while others prefer to spend time alone or with a small group of trusted friends because it’s hard for them to keep their traumatic memories at bay.

For these people, it is imperative to find jobs within their comfort zones and, for many, jobs that have flexible schedules, since PTSD can impact sleeping habits and therefore create the need to work overnight or at varying hours throughout the day. Here are five great jobs for people living with PTSD who feel more comfortable working away from the general public.

Pet-sit

It’s well-known throughout the medical community that spending time with animals can reduce stress and can greatly accelerate the healing process for many people. The same is true for people with PTSD, who can benefit from the calming nature of non-threatening animals. Pet-sitting is a wonderful job opportunity, and sites like Rover.com offer pet owners and responsible animal lovers the chance to meet up. There could be people in your area who need a caregiver for their pet while they go out of town; simply sign up on the site to get matched up with a pet parent in need, then let Rover.com take care of the financial end of things. In many cases, the pet owner can bring the animal to you, so you can bond with a loveable creature without having to leave the comfort of your own home. You can also sign up to be a dog walker if you’re looking for added flexibility in your schedule — dog walking often requires you to spend an hour or less with your four-legged client.

Landscape or Garden

While working outside usually requires a daytime schedule, it can be highly rewarding for people who enjoy working in the dirt. Finding a job with a local landscaping company or florist could be a great way to work in a peaceful environment without having to engage in much social activity.

Put Your Creativity to Work

If you enjoy working with your hands to create things, sites like Etsy.com are wonderful places to start your own small business from home. Boasting mostly handmade items, Etsy is user-friendly and offers various payment options for customers who are looking for hand-crafted jewelry, furniture, clothing, and accessories. These types of jobs require a bit of networking online, but for the most part you can promote your work entirely from your computer.

Cook

Cooking or baking can often be creative tasks that have wonderful (and delicious) results. Working in a fast-paced restaurant kitchen may not be the best option for someone with PTSD, but there are often jobs to be found in those environments that lend themselves more easily to an employee who needs time away from the bustle. Often called “prep cooks,” these workers can spend time preparing, chopping, and slicing up ingredients for use later in the day and are usually able to do so in a quiet environment, sometimes early in the morning.

Clean

Many businesses, including office buildings, require an employee who can come in and clean during off-hours, making it the perfect job for someone who needs limited interaction and a flexible schedule. There are varying degrees of physical activity involved, as well, and exercise is an important part of recovery for many people with PTSD.

Many people diagnosed with PTSD require not only limited interaction with others, but calm and quiet environments as well. It can be difficult for some to focus on the job at hand when there are too many distractions, which can also cause traumatic memories to surface. Jobs with low stress-levels and somewhat isolated environments are often the best choices for anyone dealing with anxiety or PTSD.

 

 

Julia Merrill is a retired board-certified nurse practitioner. Over the course of her 30-year career, she strived to bridge the communication gap between those seeking the best medical care and those working to provide it. She created BefriendYourDoc.org with the goal of sharing tips and insights into finding the right medical care, dealing with insurance companies, and ways for everyone to better maintain their own health and wellness.

VA Blue Button: Helpful or Hurtful?

Written by William & Mary Law Student Haley Morton.

The VA Blue Button is a tool designed to compile veterans’ medical records all in one place. The stated goal behind the VA Blue Button is to make medical records more available to veterans so that veterans can supply them to their health care teams. All that is required is for a veteran to be a VA patient and have a Premium HealtheVet account. From this account, a veteran can access, download and print all of his or her medical records.[1] Though helpful on its surface, is this service really doing everything it purports?

Blue Button was launched in summer of 2010, but as late as 2014, some studies indicated that Blue Button was not widely used or recognized by veterans. In 2014, only one-third of veterans were using the service to access personal health records, and those that did reported dissatisfaction with the service.[2] In regards to use, the issue comes down to educational efforts; the VA must show it reaches out to vets so they know: (1) that the service is available to them, and (2) how to actually use the service.[3] Despite use problems, veterans that did use the service in 2014 reported that it helped them understand their health history because the information was located in one place.[4]

Arguably, a greater concern about current issues in the Blue Button system is the questionable transparency provided to the veterans. In short, veterans may not have complete access to their own records. In 2015, the VA made more records available to veterans through the Blue Button service, namely MRIs and X-Rays.  Additionally, the VA is working on a method for veterans to not only download the images but electronically send them to other healthcare providers through the website.[5] Despite the improvements, Blue Button still does not provide veterans with all records; veterans still must request copies “everything from their inpatient/outpatient electronic health record,” in order to provide them with the documents necessary to file a claim for benefits.[6]  This hurdle leads to other criticisms, particularly in the realm of transparency.  Some veterans are finding that they are not getting all information they are supposed to from Blue Button. For example, one attorney compared records he got from a VistA Program Note (the VA’s Electronic Health Records system) with a My HealtheVet VA Blue Button VA Note.[7]  While the first note contained 1,739 words, the Blue Button note had 583 words.  He noticed that the VA Blue Button report redacted information that might have been helpful to his claim.[8]  As a conclusion, he noted that the issue with Blue Button is that the VA says that it will provide “key portions of your VA health record,” but “the problem . . . is [that] we let VA decide what the key portions are.”[9]

Ultimately, the VA Blue Button system is better than a veteran having no electronic access to medical records. On one hand, a veteran can get a big picture view of his records and prepare himself to discuss his disabilities with his healthcare providers. However, this tool will likely be more effective when veterans can navigate the site with ease and access all records. Until then, our veterans will struggle to make sense of the confusion.

[1] VA Blue Button, U.S. Dep’t of Veterans Aff., http://www.va.gov/bluebutton/ (last visited Apr. 28, 2016).

[2] Marla Durben Hirsch, VA: More Education Needed on Blue Button Initiative, FierceEMR (Apr. 23, 2014), http://www.fierceemr.com/story/va-more-education-needed-blue-button-initiative/2014-04-23.

[3] Id.

[4] Id.

[5] Bryant Jordan, VA in Tests to Make X-Rays, Other Images Available to Veterans Online, Military.com (Apr. 24, 2015), http://www.military.com/daily-news/2015/04/24/va-in-tests-to-make-xrays-other-images-available-to-veterans.html.

[6] Id.

[7] Benjamin Krause, Is VA Misleading Veterans About ‘My HealtheVet’ Medical Records?, DisabledVeterans.Org, (Apr. 6, 2015), http://www.disabledveterans.org/2015/04/06/va-misleading-veterans-healthevet-medical-records/.

[8] Id.

[9] Id.

Do Proposed Look-Back Provisions Make Sense for a Primary Residence?

Written by William & Mary law student Justin Pierce

A population of aging veterans, combined with the skyrocketing costs of assisted living facilities, means that some veterans will need assistance from the Department of Veterans Affairs (VA) to receive the care they need. The increased demand may stress current programs, such as the VA Pension or Aid and Attendance.[1] As with any compensation program, administrators must determine which applicants qualify for assistance and which should not. New regulations proposed by the VA seek to better target veterans who truly need financial support for their care.[2] One particular change would require “look-back” provisions to prevent veterans from transferring assets within the three years prior to applying for benefits.[3] On the surface, this makes sense. But do look-back provisions unfairly prejudice veterans who must sell their homes to pay for costly assisted living facilities?

Background

VA pension is available to veterans who (1) were discharged from service under other than dishonorable conditions; (2) served 90 days or more of active duty with at least one day during a period of war time; (3) are either age 65, permanently disabled, or receiving Social Security Disability Insurance or Supplemental Security Income; (4) meet an income threshold; and (5) meet an asset threshold.[4] In addition to the pension, veterans may also be eligible to receive Aid and Attendance, which raises the base pension amount.[5] Aid and Attendance applies to veterans who require the aid of another person in order to perform personal functions required in everyday living.[6] It also applies to veterans who are patients in a nursing home due to mental or physical incapacity.[7]

Currently, the VA does not set a rigid number for determining the asset threshold, but there seems to be a general consensus that applicants should have less than $80,000.[8] A primary residence is not considered an asset, but, once sold, the proceeds would be included in the income/asset computation.[9] Therefore, once a veteran sells her home—even if sold to pay for living expenses—she would probably no longer be eligible for a VA pension.

Under the current structure, a veteran who moves from her home to an assisted living facility could attempt to transfer her home to a family member or to a trust to avoid counting the proceeds of sale as an asset.[10] Many attorneys that specialize in estate planning and veterans compensation offer these services.[11] Such tools could allow veterans to “keep” the value of their primary residence, while still remaining eligible for VA assistance.

Proposed Regulations

All of that could change very soon. The VA has proposed regulations to prevent asset transfers.[12] The relevant changes are designed to prevent wealthy veterans from hiding assets to qualify for VA pensions. According to the VA, the current rules are “not effective in proscribing transfers of significant assets for the purpose of creating pension entitlement.”[13] Manipulating assets raises particular concern for VA programs because the pension is a needs-based benefit.[14] Allowing some individuals to unjustly qualify could prevent others from receiving much-needed assistance.[15]

Given this reality, the proposed regulations would establish a three-year look-back period.[16] Asset transfers made within three years of a claimant’s application would be subject to a penalty provision that would bar the veteran from receiving compensation.[17] The VA would “presume[] that an asset transfer made during the look-back period was for the purpose of decreasing net worth.”[18] The duration of the penalty would vary based on the value of the asset transfer, with a maximum length of ten years.[19]

Primary Residence

The proposed look-back provisions would properly limit some veterans who do not need the benefits of the VA pension. However, the look-back provisions should not apply to the transfer of a primary residence.[20] Alternatively, proceeds from the sale of a primary residence should not be included in the income/asset calculation.

The VA would argue that all liquid assets should be included in the income/asset calculation because the VA pension is a need-based program.[21] But, treating the sale or transfer of a primary residence as an asset creates strange results. Here are two examples. First, suppose a veteran lives in her residence and collects a VA pension. If that veteran sold her residence and moved to a less expensive home, she could risk losing her VA compensation by generating too much income. So, even if she needs the money (or wants a smaller home), the incentive is to keep her investment tied up in the house. Keeping the house would permit her to continue to collect VA pension. Second, suppose a veteran lives in an assisted living facility, but wants to maintain her home. Perhaps she plans to return, or perhaps she wants to save the home for her children. Either way, rather than sell the property where she no longer resides, she decides to keep the asset. As with the example above, this would be permissible.[22]

In either situation, the veteran may retain the benefit of her home as an asset without consequence, unless she needs to sell the home for her care. Once she sells the home, the asset counts against her. Many veterans, especially those entering assisted living facilities, need to draw on the value of their home to support themselves. Under the VA’s rules, that would make them ineligible to receive aid until that resource was depleted. Treating the home differently when owned versus when transferred or sold advantages those who can afford to store their wealth in their residence and hurts those who cannot—a perverse outcome for a needs-based program.

Excluding the transfer of a primary residence from the proposed look-back provisions would allow veterans to exercise a right to keep their home or to sell it for their care. It is possible that this would leave the door open for predatory estate planners seeking to take advantage of veterans,[23] and some veterans who truly do not need financial assistance could still use their home as a way to store wealth.[24] But, even excluding the primary residence, the proposed look-back provisions would combat the majority of these concerns. The few cases in which veterans improperly store assets using a primary residence would be outweighed by the benefit to those who are not trying to game the system.

[1] Bonnie Laiderman, The Demand for Home Care is Increasing for Aging Veterans, Veterans Home Care (Feb. 13, 2015), http://www.veteranshomecare.com/the-demand-for-home-care-is-increasing-for-aging-veterans; see also Thomas Day, Veterans Aid and Attendance Pension Benefit and Long Term Care Benefits for Veterans, Nat’l Care Planning Council, http://www.longtermcarelink.net/eldercare/long_term_care_benefits_for_veterans.htm (last visited Apr. 12, 2016).

[2] See generally Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits, 80 Fed. Reg. 3840 (proposed Jan. 23, 2015) (to be codified at 38 C.F.R. pt. 3) [hereinafter Proposed Rule].

[3] Id. at 3848.

[4] Veterans Pension, U.S. Dep’t of Veterans Aff., http://www.benefits.va.gov/pension/vetpen.asp (last visited Apr. 12, 2016).

[5] Aid & Attendance and Housebound, U.S. Dep’t of Veterans Aff., http://www.benefits.va.gov/pension/aid_attendance_housebound.asp (last visited Apr. 12, 2016).

[6] Id.

[7] 38 C.F.R. 3.351(c)(2); M21-1MR, Part V, Subpart iii, Chapter 2, Section A.1.b.

[8] Understanding the Veterans Pension Benefit and the Aid and Attendance Allowance, Senior Veterans Serv. Alliance,

http://www.veteransaidbenefit.org/aid_and_attendance_pension_benefit.htm (last visited Apr. 12, 2016).

[9] 38 C.F.R. 3.262(k).

[10] 38 CFR 3.276(b); U.S. Gov’t Accountability Office, GAO-12-540, Veterans’ Pension Benefits: Improvements Needed to Ensure Only Qualified Veterans and Survivors Service Benefits 17-19 (2012) [hereinafter Veterans’ Pension Benefits].

[11] Veterans’ Pension Benefits at 15-17.

[12] Proposed Rule at 3860-61.

[13] Id. at 3848.

[14] Id.

[15] Id.; M21–1MR, Part V, Subpart iii, Chapter 1, Section J.67.h (“Pension entitlement is based on need and that need does not exist if a claimant’s estate is of such size that he/she could use it for living expenses.”).

[16] Proposed Rule at 3860; see also Veterans’ Pension Benefits at Executive Summary.

[17] Proposed Rule at 3860-61.

[18] Id. at 3860.

[19] Id. at 3861.

[20] There could be other repercussions for transferring a property, such as capital gains taxes for the grantee or penalties for the grantor from look-back provisions in other federal aid programs. See Veterans’ Pension Benefits at 19-20.

[21] See supra notes 13-15 and accompanying text.

[22] M21–1MR, Part V, Subpart iii, Chapter 1, Section J.5.c (“The primary residence of a claimant is not countable as net worth for pension when the claimant is not residing in the home due to the beneficiary residing in  a nursing home, assisted living, or independent living facility.”).

[23] Veterans’ Pension Benefits at 15-19.

[24] See id. at 8-9 (describing cases in which veterans did not report trusts with assets totaling $575,000 and $612,000).

“Veterans Wanted”: Private Sector Employment Opportunities for Veterans

Written by William & Mary Law Student Dominic Pino

In February of this year, this blog posted the discussion of “Serving Those Who Serve: More to be Done to Ease the Transition From Armed Service to Civilian Life for Post-9/11 Veterans”.  In that post, the author discussed how current era veterans are having an increasingly difficult time finding employment post-deployment. According to the 2015 Veteran Economic Opportunity Report, approximately 53% of all Post-9/11 Veterans will face some period of unemployment after leaving service.[1] As of March 2016, the estimated unemployment rate for Post-9/11 Veterans was 6.3% compared to a national unemployment rate of approximately 5.0%.[2]   As discussed in the February posting, one of the largest factors contributing to this inflated rate of veteran unemployment is the challenge in translating military work into civilian terms.  According to a recent LA Times Article, despite 81% of military jobs having close civilian equivalents, many veterans are unable to translate their experience into job opportunities.[3] While the US Department of Labor has acted to assist unemployed veterans with addressing this hurdle, specifically through the publication of their manual “How to Create and Effective Resume”[4], additional hurdles such as licensing and certifications add to the difficultly of veterans obtaining jobs related to their military service and experience.

In recognition of these issues, many independent private employers have taken similar action to assist veterans in transitioning into civilian life.   One specific example of this comes from Starbucks.  In March 2015, Starbucks announced a commitment to hire 10,000 veterans and military spouses by 2018.[5]  To date, they have hired over 6,500 veterans and military spouses.[6] Forbes Magazine, in conjunction with Victory Media, released its 2016 Top 100 Military Friendly Companies list in November 2015.[7]  The factors taken into consideration to determine this list include long-term commitment to hiring former military, recruiting and hiring efforts and results, policies for Reserve and Guard members called to active duty, and the presence of special recruitment programs for military members and veterans.[8]

The industry with the largest number of companies on the list was the “financial services” industry with 19 companies listed in the top 100, including Bank of America, Deloitte, KPMG, and PriceWaterhouseCoopers.[9]  Other industries with multiple companies ranked include Energy, Defense, Security and Corrections, along with Retail and Healthcare.[10]  According to Forbes[11], the top three military friendly companies are:

  • Number 1: Combined Insurance
  • Number 2: Booz Allen Hamilton
  • Number 3: The United States Automobile Association

Combined Insurance has made a commitment to hire 2,500 more veterans by the end of 2017.[12]  Additionally, this year alone, over one-third of the company’s new hires have been veterans.[13]  Similarly, Boozy Allen Hamilton has made specific efforts to assist veterans in transitioning to civilian life and careers.  Specifically, the company has created programs and forums to assist with career transitions and mentoring.[14]  Boozy Allen Hamilton also heavily hires veterans with over one-third of their employees having served in the military and 26% of new hires coming in 2015 being veterans.[15]  Finally, the United States Automobile Association has committed to have veterans fill at least 30% of their new hires.[16]  Additionally, during their recruitment process USAA provides preferential review for veterans and military spouses.[17]

Other companies that made the list include: Verizon Wireless, AT&T, General Electric, The Home Depot, Capital One, Southwest, Goodyear, Waste Management, Hilton, McDonald’s, PNC, Wal-Mart, and Safeway.  To see the full list, go to www.gijobs.com/wp-content/uploads/2014/11/GIJ.Dec14.TOP100MFE.LR_.pdf.

Other companies that just missed the top 100 but still were considered in the “1% of companies that have great programs and opportunities for veterans and spouses” include SAIC, Xerox, Sunoco, Amazon, and T-Mobile US.  Amazon, in particular, hired more 2,600 veterans in 2014 alone and has joined the national efforts of Joining Forces and the 100,000 Jobs Mission to assist service members and their families in connecting with employers.[18]  Moreover, Amazon offers programs such as Amazon Warriors to assist hired veterans in furthering their careers and more easily adapting to the civilian workforce.[19]  Please note that government agencies and non-profit organizations were excluded from the rankings.

[1] Department of Veteran Affairs, 2015 Veteran Economic Opportunity Report, (April 16, 2016), http://www.benefits.va.gov/benefits/docs/VeteranEconomicOpportunityReport2015.PDF.

[2] Bureau of Labor Statistics, Economic News Release, (April 1, 2016), http://www.bls.gov/news.release/empsit.t05.htm.

[3] David Zucchino, Unemployment is a special challenge for veterans, LA Times, (April 25, 2012).

[4] Available at http://www.dol.gov/vets/programs/tap/dolew-participant-guide-january_2014.pdf.

[5] Veterans and Military Support, http://www.starbucks.com/responsibility/community/veterans.

[6] Id.

[7] Kathryn Dill, The Top 100 Military Friendly Employers, Forbes, (November 10, 2015), http://forbes.com/sites/kathryndill/2015/11/10/the-top-1000-military-friendly-employers-for-2016/#eb8eea831679.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] https://www.combinedinsurance.com/microsites/military/

[13] Id.

[14] http://www.boozallen.com/insights/better-our-world/supporting-veterans

[15] See Id.

[16] https://www.usaajobs.com/military/

[17] Id.

[18] http://www.amazon.com/p/feature/8b6pc8wau3yr9pf

[19] Id.

Scheduling and Rescheduling C&P Examinations – A Pitfall for Many Veteran’s Claims

Written by William & Mary Law Student Sarah Blackadar

Whether you are a veteran applying for benefits, or an advocate helping veterans through the process, you are probably familiar with compensation & pension exams (C&P exams).[1] The VA can use C&P exams to gather additional evidence needed to evaluate a veteran’s claim for disability benefits.[2] However, as many veterans and advocates have noticed, the exams are often ordered even where there is copious amounts of other acceptable medical evidence[3] submitted by the veteran. However, once an examination is scheduled, the veteran must attend or jeopardize the right to benefits, unless the veteran has ‘good cause’ for failing to attend. .[4]  This blog includes some helpful suggestions about how to handle the scheduling of C&Ps and options available to a veteran when unable to attend a scheduled C&P exam and their claim is denied.

First, it is recommended to try to reschedule the exam to a specific date as soon as you receive notice of a C&P exam you cannot attend. Sometimes, when an exam is cancelled by the veteran, the veteran is asked to call back at a later time to reschedule an exam. This often leads to the problem of the Regional Office treating the original date of the C&P exam as a missed exam, even though it was not missed.

When a veteran fails to attend an exam, regulations require a showing of good cause as to why the veteran was unable to attend the scheduled exam. Under the regulations “examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.”[5] The Board of Veterans Appeals, and the Court of Appeals for Veterans Claims have done little to clarify what meets the standard of “good cause” but have put the onus on the veteran to communicate their inability to show for an appointment to the VA.[6] However, even when veterans do everything in their control not to miss their C&P exam, or attempt to show “good cause” for why they cannot attend, their claims may still be denied and often with the justification that the veteran missed the exam.

When a veteran has a claim denied because they did not show for C&P exam there are a regulations that veterans should be aware of in order to preserve their rights to disability benefits.

If the claim is an original claim (the first time the veteran files for benefits) then the failure of the veteran to show to a C&P examination cannot be the sole reason for the denial a claim. Instead for an original claim, the rating must be based on the medical evidence in the veteran’s file.[7] If the veteran has submitted other competent medical evidence[8] the Regional Office must evaluate this evidence and cannot prejudice the veteran because they did not attend a C&P examination.

Additionally, even if the veteran is reopening a claim, or applying for a rating increase–which the VA can deny because of a missed C&P[9]–the veteran is not without redress. Veterans who took the appropriate steps to notify the VA of their unavailable status often have confirmation from the scheduler that their appointment was cancelled and would be rescheduled later. Sometimes, within only a few weeks of the veteran’s original C&P examination date these same veterans receive decision letters denying their claim.

In cases such as these, an important step the veteran should take is to file their notice of disagreement (NOD) with the decision. This keeps the veteran’s claim alive and preserves their effective date.[10] The veteran can then raise the issue of the C&P exam and the veteran’s “good cause” for not attending the C&P exam in the NOD. In addition, the veteran should provide documentation to support both their “good cause” for not attending and to show communication of that information to the scheduler or the VA. Do not assume that the Regional Office will spot the error without the veteran specifically pointing it out. It is possible that the Regional Office may find it necessary to order another C&P.

At any time during the Regional Office process a veteran can request a hearing.[11] At the hearing a veteran can make arguments as to why their claim should not have been denied. The hearing is an opportunity, in front of the office that must make the request for another C&P exam, for the veteran to request an exam be ordered, in light of the veterans “good cause” to miss the first one.

[1] For more on what happens when you attend a C&P exam, Swords to Plowshares has this excellent recourse; https://www.swords-to-plowshares.org/guides/cp.

[2] 38 CFR §3.326(a) (2016).

[3] 38 CFR §3.326(b) (2016).

[4] 38 CFR §3.655(a) (2016).

[5] 38 CFR §3.655(a) (2016).

[6] 2004 BVA LEXIS 46509, BVA 04-09106 (2004).

[7] 38 CFR §3.655(b) (2016).

[8] Private medical records, VA Hospital records, and DBQs completed by a medical professional may all support a claim for VA benefits per 38 CFR §3.326(b) (2016).

[9] 38 CFR §3.655(a) (2016).

[10] 38 CFR §3.103(f) (2016).

[11] 38 CFR §3.103(c) (2016).

Does VA’s Non-Adversarial System Increase Delays?

Written by William & Mary Law Student Aaron Petters

“Let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall borne the battle, and for his widow, and his orphan”[1] These words delivered by President Abraham Lincoln have become the motto for the Department of Veterans’ Affairs (VA) as the agency attempts to answer President Lincoln’s call.  Unfortunately, many veterans today believe that the VA goes by a completely different motto, “delay, deny, hope they die”.  Veterans find evidence that this slogan is representative of the VA’s ethos in the seemingly endless investigative reports across the country that expose VA problems.  One such report from CNN reveals that bad VA health care may have killed over 1,000 veterans.  Other reports expose secret waiting lists and evidence of cover ups.[2]  Although the VA certainly deserves its fair share of criticism, evidence suggests that one reason for the delays may actually stem from the VA’s non adversarial system and its duty to assist.

When a veteran submits a claim for benefits with the VA the agency is required to assist the veteran in various ways throughout the process.  Known as the “duty to assist”, a major component of this duty involves gathering necessary records to complete the veteran’s claim.[3]  These records can include medical reports, social security information, and military service records.  The VA must continue trying to obtain these records until one of two things happen.  Either the VA finds the necessary records, or they determine that the records do not exist.[4]  While the VA can continue to process the claim without those records, the claim cannot ultimately be completed until one of the aforementioned outcomes is reached.[5]

This additional time spent gathering records has significantly lengthened the evidence gathering phase of claims, and thus increased the delay for benefit decisions.  Exacerbating the problem is the fact that records for National Guard and Reserve members are particularly difficult to gather.[6]  The difficulty occurs because this group of service members often serve nonconsecutive tours of duty and are seen by private medical providers in between deployments.[7]  Since upwards of 43 percent of current conflict veterans are National Guard are Reserve members, the delay is compounded.[8]

In 2007, the VA contracted with IBM Global Services to conduct a detailed review of the VA claims processing system.[9]  This review confirmed that the duty to assist is increasing delays in the VA system.  The review found that compliance with the Veteran’s Claims Assistance Act (VCAA) increased the time required to process claims and noted that two thirds of the time needed to process a claim was devoted to developing evidence in support of the claim as required by the VCAA.[10]

Despite evidence that the duty to assist does add to VA delays, the duty should not be limited or removed altogether.  Maintaining the non-adversarial system is a key component in caring for our veterans and ensuring that the system is working with them rather than against them.  However, the evidence does show how even ideas that are designed to help veterans can lead to problems in the long run.  The Department of Veterans’ Affairs and lawmakers should bear this lesson in mind while offering solutions to current VA issues.

[1] The Origin of the VA motto, http://www.va.gov/opa/publications/celebrate/vamotto.pdf

[2] Bad VA care may have killed more than 1,000 veterans, senator’s report says, http://www.cnn.com/2014/06/24/us/senator-va-report/, see also The VA’s Latest Major Problem: An Inspector General That Hides Damaging Reports About VA Failures, http://www.theblaze.com/stories/2015/01/15/the-vas-latest-major-problem-an-inspector-general-that-hides-damaging-reports-about-va-failures/.

[3] M21-1MR, Part 1, Chapter 1, Section A, Topic 2.

[4] Veterans’ Disability Benefits, Challenge to Timely Processing Persist, p. 9http://www.gao.gov/assets/660/652979.pdf

[5] Id.

[6] Id. at 10.

[7] Id.

[8] Id.

[9] Michael Walcoff, Examining the VA Claims Processing System, February 14, 2008, http://www.va.gov/OCA/testimony/hvac/sdama/080214MW.asp.

[10] Rory E. Riley, The Importance of Preserving the Pro-Claimant Policy Underlying the Veterans’ Benefits Scheme: A Comparative Analysis of the Administrative Structure of the Department of Veterans Affairs Disability Benefits System, p. 22, http://www.bva.va.gov/docs/VLR_VOL2/Copy3–RoryRiley.pdf

The GI Bill: Fundamental Veterans Benefit or Target of Government Scale Back?

Written by William & Mary Law Student Angela Diaz

Since it’s enacting, the GI Bill has helped thousands of Veterans obtain gainful employment through education and job training. It is one of the hallmarks of the entire VA benefits system and it benefits not only veteran themselves but also their spouses and children. However, recently there have been movements to reduce the benefits received by GI Bill recipients. While these are seemingly small reductions, they could open the door to eliminating other essential benefits.

The current incarnation of the GI Bill has evolved greatly since its inception. On June 22, 1944, President Franklin D. Roosevelt signed the Servicemen’s Readjustment Act of 1944, also known as the GI Bill of Rights, in response to the issues faced by Veterans trying to assimilate into civilian life.[1] The GI Bill would remain largely unchanged until 2008 when it was updated again to provide enhanced educational benefits to veterans with active duty service on, or after, September 11, 2001.[2]

Today, the Post-9/11 GI Bill provides tuition and fees, housing allowances for students who attend more than half-time, and a stipend for books and supplies.[3] To be eligible for the Post-9/11 GI Bill, the veteran must have “served at least 90 aggregate days in active duty after September 10, 2001, or were honorably discharged from active duty for a service connected disability after serving 30 continuous days following September 10, 2001.”[4] Length of service is also used to determine the amount of benefit payable.[5]

Although the GI Bill is mostly used as a method for veterans to seek college education, it can also be put toward many other functions not commonly known, including: trade schools, on the job training, apprenticeships, and flight schools.[6] Additionally, it can be used to pay for tutorial services, licensing, and certification tests.[7] Post-9/11 GI Bill recipients can transfer unused benefits to a spouse or dependent; however, this usually requires fulfillment of an agreement to serve four more years.[8] These alternative uses, at least in theory, express the VA’s commitment to helping veterans in their professional development and careers.

Even though the GI Bill provides unparalleled opportunities for veterans to pursue professional development, the benefits available to GI Bill recipients has recently faced increasing scrutiny. Just this past February the House of Representatives approved a bill that would cut the housing stipend for dependents of service members receiving transferred Post-9/11 GI Bill benefits in half and restrict the use of Post-9/11 GI Bill for flight training.[9] This bill had the support of the Veterans of Foreign Wars and Disabled American Veterans because of the components that would streamline veterans’ health care and benefits; however, other groups such as the Association of the United States Navy (AUSN) disagree and point out that reducing GI Bill benefits is a “slippery slope.”[10]

In the past, the only changes to the GI Bill have expanded the services available to veterans. The original GI Bill was intended to reduce unemployment among the veteran community and prevent economic crisis.[11] Eliminating some of the GI Bill benefits could potentially have the effect that the drafters of the GI Bill intended to avoid and severely disadvantage many veterans who rely on these awards.

Additionally, GI Bill beneficiaries have faced another recent setback. Last December’s National Defense Authorization Act stipulated that Post-9/11 GI Bill recipients of education payouts should not also be eligible for unemployment benefits.[12] The application of this new regulation is still unknown as the Department of Labor is working to publish guidance on the matter[13], but the effects of this reduction could potentially create unexpected financial burden on unassuming veterans. Since it is still undetermined who will be losing benefits it is hard for veterans to prepare for the change. While the fallout of the new law to discontinue unemployment benefits for veterans receiving GI Bill benefits is still up in the air, veterans advocates can only hope for future clarification.

 

[1]  U.S. Department of Veterans Affairs, Education and Training: History and Timeline, benefits.va.gov, http://www.benefits.va.gov/gibill/history.asp.

[2] Id.

[3] Department of Veterans Affairs, Post 9/11 GI Bill It’s Your Future (Veterans Benefits Administration, May 2012), http://www.benefits.va.gov/gibill/docs/pamphlets/ch33_pamphlet.pdf; Jennifer Cary, 15 Facts Everyone Should Know About the Posrt-9/11 GHI Bill, ClearanceJobs.com (Aug. 19, 2015) https://news.clearancejobs.com/2015/08/19/15-facts-everyone-know-post-911-gi-bill/

[4] Department of Veterans Affairs, Post 9/11 GI Bill It’s Your Future (Veterans Benefits Administration, May 2012), http://www.benefits.va.gov/gibill/docs/pamphlets/ch33_pamphlet.pdf.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] George Altman, House votes to scale back GI Bill housing stipend for military kids, Military Times (Feb. 9, 2016, 9:43 PM), http://www.militarytimes.com/story/military/benefits/education/gi-bill-ta/2016/02/09/gi-bill-housing-stipend-cut-military-kids-passes-house-representatives/80079550/.

[10] Id.

[11] U.S. Department of Veterans Affairs, supra note 1.

[12] Leo Shane III, New law will cut off unemployment pay for GI Bill users, Military Times (Mar. 14, 2016, 9:33 AM), http://www.militarytimes.com/story/veterans/2016/03/12/unemployment-changes-gi-bill-veterans/81645480/.

[13] Id.

Veterans’ Privacy: Reconsidering the Social Security Number as a VA Identifier

Written by William & Mary Law Student Brittany McGill

In the wake of recent data breaches, legislators and VA officials are asking: Should we keep using the Social Security Number (SSN) as the VA identifier? The Social Security Administration created the SSN solely for employers to report employees’ earnings.[i] However, the SSN since has developed into a “nearly universal identifier” for both government and private sector needs.[ii] SSNs have served as identifiers of active duty service members for all military branches since 1974.[iii] Veterans use their SSNs to obtain their military records and to process benefits claims.[iv]

Last year, a Wisconsin Department of Veterans Affairs employee sent an email containing 637 SSNs to a random veteran.[v] Further investigation revealed emails containing SSNs had been sent from this office to unintended recipients at least three prior times.[vi] Federal law and VA regulations require VA employees to password-protect “personally identifiable information”.[vii]

This is not the first time veterans’ SSNs have been compromised. In 2006, a burglar stole a laptop containing 26 million veterans’ and active duty service members’ personal information.[viii] In March 2016, a North Carolina veteran received another veteran’s SSN and benefits information in the mail.[ix] Following the Wisconsin incident, the VA updated its software to better scan for SSNs.[x] Secretary Robert McDonald stated that the VA is open to using an alternative identifier, but that it would take time.[xi] Senator Tammy Baldwin (D-Wis.) recently drafted legislation intended to force the Department of Veterans Affairs to stop using SSNs as identifiers.[xii]

Veterans are particularly vulnerable to identity theft. Forced to use their SSNs during and after service, many veterans easily give out their SSN when asked compared to non-veterans.[xiii] Veterans dealing with the VA on disability claims often have stacks of paperwork in their homes—all containing their SSN as the reference number.

In April, Medicare began transitioning away from SSN identifiers. A bill signed by President Obama requires the Department of Health and Human Services (HHS) to issue Medicare cards without SSNs to new and existing beneficiaries over the next eight years.[xiv] The VA can use the HHS legislation and Medicare procedures as an example.

Still, switching to a non-SSN identifier within the VA poses legitimate challenges. Per Secretary McDonald, “getting rid of the SSN ID system… would be complicated and costly.”[xv] Medicare’s costs are an estimated $320 million over the next four years.[xvi] Logistically, the VA would have to start new claims without SSNs and convert current claims to a different identifier. With the VA already suffering from immense backlog, a change of this nature certainly could further slow processing time for claims. While veterans are likely to appreciate the additional security of a non-SSN identifier, those already aggravated with the disability claims process likely would not be enthusiastic about any additional delay. Still, for the protection of those who have protected this country, an SSN-less VA system is worth exploring.

[i] Id., supra note 1, at 67.

[ii] Id., supra note 1, at 67-69; William H. Manz. Federal Identity Theft Law: Major Enactments of the 108th Congress: A Legislative History of the Fair and Accurate Credit Transactions Act and Identity Theft Penalty Enhancement Act (Inc 2005).

[iii] National Archives, Service Number (SN) and Social Security Number (SSN), http://www.archives.gov/st-louis/military-personnel/social-security-numbers.html (last visited Mar. 27, 2016).

[iv] Id., supra note 4; Department of Veterans Affairs, Notice to Veteran/Service Member of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits, 7 (2015), http://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf.

[v] Adam Schrager, Veteran Receives Email Listing Hundreds of Social Security Numbers, Channel3000.com (Oct. 29, 2015, 4:48 PM), http://www.channel3000.com/news/veteran-receives-email-listing-hundreds-of-social-security-numbers/36124636. See also, Adam Schrager, Wis. Senators Demand Answers from VA Over Privacy Breach, Channel3000.com, (Oct. 30, 2015, 12:54 PM), http://www.channel3000.com/news/Wis-senators-demand-answers-from-VA-over-privacy-breach/36150298.

[vi] Schrager, supra note 6.

[vii] Id., supra note 6; Government Accountability Office, Information Security—Protecting Personally Identifiable Information (2008). s oject’te s, and file foldersncident, the VA updated ion for persoanl adn ave protected this country. ted ing time for claims.

[viii] Government Accountability Office, supra note 10; Jonathan J. Darrow and Stephen D. Lichtenstein, Do You Really Need My Social Security Number? Data Collection Practices in the Digital Age, 10 N.C. J.L. & Tech. 1, 23 (2008.

[ix] Amanda Weston, Veteran Receives Stranger’s Confidential Information in Extra VA Letter, WECT.COM (Mar. 16, 2016. 8:45 PM), http://www.wect.com/story/31489864/veteran-receives-strangers-confidential-information-in-extra-va-letter.

[x] Channel3000.com, Veterans Administration Updates Software to Better Protect SSN, (Mar. 10, 2016), http://www.channel3000.com/news/veterans-administration-updates-software-to-better-protect-ssn/38453030.

[xi] Channel3000.com, supra note 16.

[xii] Aisha Chowdhry, Senator Wants VA to Stop Using SSNs, Federal Computer Week (Mar. 10, 2016), https://fcw.com/articles/2016/03/10/veterans-affairs-ssn.aspx.

[xiii] This observation comes from the author’s personal experience collecting individuals’ confidential information to process personal injury claims.

[xiv] Social Security Administration, New Medicare Cards Will Not Display Social Security Numbers, Social Security Administration (Apr. 29, 2015), http://oig.ssa.gov/newsroom/ blog/ apr29-medicare-card-SSN.

[xv] Channel3000.com, supra note 16.

[xvi] Channel3000.com, supra note 16.

As Suicide Numbers Grow in the Veteran Community, VA’s Crisis Hotline May Be Unprepared

Written by William & Mary Law Student Krista Wallace

The VA operates a twenty-four hour crisis hotline for veterans, service members, and their loved ones in need.[1] Individuals may call a hotline phone number (1-800-273-8255, then press 1), send a text message to 838255, or chat online to receive confidential support any day of the week, 365 days a year.[2] Hotline operators are specifically trained to help veterans of all ages and circumstances, including those dealing with homelessness, unemployment, and drug and alcohol addiction.[3] Since its launch in 2007, the Veterans Crisis Line has answered over two million calls and dispatched emergency services 56,000 times.[4] It has also engaged in more than 267,000 online chats.[5]

A recent investigation by the VA’s Inspector General has revealed that this hotline may not be as effective as the numbers suggest. The report says that calls to the hotline have increased dramatically in recent years as veterans increasingly seek services following prolonged service in Iraq and Afghanistan, and as Vietnam-era veterans are aging. Statistics show that about one-fifth of all suicides in the United States are committed by veterans, and the VA has identified suicide prevention as an area of concern.[6]

In 2014 alone, the hotline received more than 450,000 calls, a 40 percent increase over the previous year.[7] The Inspector General report reveals that the VA may have been unprepared for this sudden increase. About 1 in 6 calls in 2014 were redirected to backup centers when the line was overloaded, and numerous hotline calls made “complaints of long wait times for responders, being put ‘on hold’ or calls ‘not being put through’ to a responder,” the report reveals.[8]

Following the report, a VA spokesperson said, “We are improving our ability to be more available when our veterans need help the most.”[9] The VA Inspector General made several recommendations that will be implemented by September 30, 2016, including resolving all problems related to calls routed to backup centers, improving tracking of calls at the backup centers, establishing a quality assurance process for the Veterans Crisis Line and the backup centers, and ensuring that contracts with backup centers set expectations.[10] The department has also hired additional staff to work peak hours and is upgrading its telephone and technology systems.[11] Further, the VA has begun coordinating with community centers, partner groups, and local health care providers to ensure that veterans get appropriate care whenever a call comes in.[12] VA Secretary Robert McDonald said during a visit to a New York VA facility, “These improvements are already beginning to show that we are increasing our capacity to speak with the veterans who need us.”[13]

While the VA works to fix its imperfect system, veterans have other options. Organizations such as the National Veterans Foundation have crisis hotlines. To reach this hotline, call 888-777-4443, Monday through Friday between 9 am and 5 pm. Regional Veterans Service Organizations can also fill the gap while the VA works to improve its services. Veterans may also utilize the National Suicide Prevention Lifeline by calling 1 (800) 273-8255. The hotline takes calls twenty-four hours a day, seven days a week.

[1] U.S. Dep’t of Veterans Affairs, Mental Health, http://www.mentalhealth.va.gov/suicide_prevention/ (last updated Mar. 8, 2016).

[2] Id.

[3] Veterans Crisis Line Seeks to Help Those Struggling With Civilian Life, Unemployment, Post-Combat Stress, Huffington Post (Mar. 8, 2016, 12:06 PM), http://www.huffingtonpost.com/2012/03/08/veterans-crisis-line_n_1322423.html.

[4] Mental Health supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Calls to veterans suicide hotline went to voicemail, report says, Military Times (Feb. 15, 2016, 3:03 PM), http://www.militarytimes.com/story/veterans/2016/02/15/calls-veterans-suicide-hotline-went-voice-mail-report-says/80409966/.

[11] Id.

[12] Mental Health supra note 1.

[13] Calls to veterans suicide hotline went to voicemail, report says, Military Times (Feb. 15, 2016, 3:03 PM), http://www.militarytimes.com/story/veterans/2016/02/15/calls-veterans-suicide-hotline-went-voice-mail-report-says/80409966/.

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