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:
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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.
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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.
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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).
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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.
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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.”
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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.
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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.
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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.''
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