NATIONAL ASSOCIATION of COUNTY VETERANS SERVICE OFFICERS DESK BOOK CHAPTERS Page

National Association of County Veterans Service Officers Resource Guide 2016

NATIONAL ASSOCIATION OF COUNTY VETERANS SERVICE OFFICERS DESK BOOK CHAPTERS Page

Disclaimer, Dedication, Forward, Preliminary Points……………………………….……3 1.DVA, NACVSO and CVSO History and Organization ...... 8 2.Veterans Benefits: General Provisions; Definitions; Periods of War ...... 16 3.Duty to Assist & Development of Claims ...... 35 4.Service Connection; Disability Compensation/Ratings and Evaluations ...... 44 4.1.Evaluations, the Rating Schedule; Rating issues; Unemployability…………. ...52 4.2 Recoupment of Benefits ………………………………………………………..58 4.3 Application Process……………………………………………………………..62 4.4 Fully Developed Claims………………………………………………………...65 4.5 Effective Dates…………………………………………………………………. 69 5.Disability Pension ...... 71 6.Dependency and Indemnity Compensation (DIC) ...... 80 7.Death Pension ...... 86 8.EVRs, Deductible Expenses ...... 90 9.Burial Benefits ...... 98 Burial Benefits, Headstone, Presidential Memorial Certificate 10. VA Medical Care ...... 109 11. Loan Guaranty…………………………………………………………………....131 12. Insurance………………………………………………………………………….137 13. Vocational Rehabilitation ...... 143 14. Veterans’ Education Assistance ...... 146 15. Dependents’ Education Assistance ...... 152 16. Debt Management; Committee on Waivers ...... 156 17. Appellate Processes ...... 161 18. Discharge Reviews; Correction of Military Records ...... 172 19. Special Benefits…………………………………………………………..….…... 175 Clothing Allowance, Automobile and Special Adaptive Equipment, CHAMPVA,Spina Bifida Allowance, REPS 20. Concurrent receipt of VA compensation and military retired pay ...... 183 SCSD CRDP CRSC

APPENDICES Page A: Abbreviations and Acronyms ...... 190 B: Medical Abbreviations, Acronyms, and Symbols...... 194 C. Specially Adapted Housing; Special Home Adaptation Grants………………….....201

D: Combined Rating Table and combined rating exercise ...... 206 E: Medical Expenses for Pension, Death Pension, and Parents DIC...... 209 F: VA and Federal Form List ...... 210 G: Evidence, Proof, New and Material Evidence ...... 216 H. Benefit information for former Prisoners of War ...... 218 I. Incompetency...... 219 J. Due Process, Adverse Action, and Predetermination Notice ...... 221 K. Claims Based on Exposure to Contaminated Drinking Water at Camp Lejeune…...224

L. Supplemental information regarding herbicide (Agent Orange) Exposure………… 227

M. Additional information regarding service connection for Post Traumatic Stress Disorder (PTSD)…………………………………………..…………………………… 229

N. VA Claims Transformation and Simplified and Standardized Rating Notification. .232

O. Additional information for Women Veterans………………………………….……234

P. Additional information for helping Homeless Veterans …………………………….236

Q. Informal claims/Intent to File………………………………………………………..238

R. Changes in benefit entitlement for Lesbian, Gay, Bisexual veterans………………...241 S. Integrated Disability Evaluation System (IDES)……………………………………..242

T. Effective dates and Liberalizing Legislation………………………………………....244

U. Common law marriage recognition by state…………………………………………250

V. Undiagnosed Illness………………………………………………………………….251

W. Traumatic Brain Injury (TBI)………………………………………………………..254

X. Benefit rate chart……………………………………………………………………..251 Compensation/SMC/DIC/Parents DIC...………………………………….…257 Special Benefit Allowances………………………………………………….282 Disability Pension……………………………………………………………284 Death Pension………………………………………………………………...286 Index……………………………………………………………………………………...288

“To Care For Him Who Shall Have Borne the Battle, His Widow and His Orphan” Abraham Lincoln, Second Inaugural Address, March 4, 1865

DEDICATION

To the Service Officers, County Veteran Service Officers, Veterans Benefits Counselors, and all others who work to assist veterans, widows, and others in applying for the benefits to which they are entitled.

Disclaimer:

While every effort is made to ensure that the information contained herein is correct and current, this manual should not be construed as definitive on questions of law, regulations, VA policy or requirements. If a question arises as to any point, the language of the statutes (law), regulations, or operating manuals and the official VA interpretations thereof, are controlling.

Memorial

While the first edition of this desk book was under preparation in 2011, this nation’s last veteran of WWI, Frank Buckles, passed away. He and those who served in “The War To End All Wars” have not been forgotten.

FORWARD

This manual is intended as a basic reference for Veterans Service Officers (VSO or CVSO). It contains twenty chapters covering all programs listed in Title 38, U.S. Code, regarding benefits for veterans, their dependents, and their survivors. It gives pertinent reading references for each topic contained. As experience dictates, and as veterans’ laws or VA policies change, it will be updated and possibly enlarged.

The format and content of the current manual has been revised from earlier versions. Each chapter includes a listing of pertinent reading references, followed by a capsule summary of the particular benefit or program being described, and an overview of the application process. Because it is intended as only a summary, no attempt is made to give comprehensive detail on any particular aspect—rather, the VSO should be encouraged to read the references given and review the cited websites for the most current information.

It is important that the user know how to do his/her own research, checking for updates or changes on laws, regulations, or policies (DVA, CVSO, and relevant policies in his/her own State). It is very helpful for all individuals involved in this work to network with other Country Service Officers, National Service Officers, and DVA employees.

Note: For the sake of editorial consistency, the word “service member” and the masculine pronouns “he” and “his” have been used throughout this manual; it should be understood that these words are meant to refer to both servicemen and servicewomen.

FORWARD TO THE 2012 EDITION

This edition is an update to the 2011 edition, which was a complete revision to the former Training Manual, including a format change to a Deskbook. Changes have also been made based on feedback from users. (please keep comments and suggestions coming to the Education Committee). We have added appendices with additional information on claims for service connection for Post Traumatic Stress Disorder (PTSD), disabilities due to herbicide (Agent Orange) exposure, and issues related to Women Veterans and Homeless Veterans. We have added a summary of changes since the prior edition. We have added simple explanations of Paragraph 28 (Prestabilization Ratings), Pyramiding, and the Amputation Rule. The chapter on service connection and compensation has been expanded to include some information on the use of the Rating Schedule.

We added some notes on hearings to the chapter on appeals. We have also added more Advocacy Tips. Many of these will be well known by experienced service officers, but may be useful to the newer service officers, especially those working in offices or states where networking with more experienced service officers is not readily available. We also hope that some of these review points will be helpful in explaining various aspects of VA benefits to our clients.

Over the last several years, understandably there has been increasing interest in, and media coverage concerning, the servicepersons coming home as the conflict in the Mid East is winding down. One of the areas of concern is the unemployment statistics for this generation. It is important that service officers are aware of the programs designed to assist these new veterans in readjusting to civilian life, employment, and health care. Useful information can be found at: http://www.oefoif.va.gov/ and http://www.vba.va.gov/predischarge/index.htm

2014 edition changes since the 2012 edition

Forms taken completely out of the main book and placed in the Form Locker after the appendices Updates to Claims Transformation Program and the Simplified Rating Notification procedures. Updated and increased information on the Fully Developed Claim program Additional appendix on latest changes to Integrated Disability Evaluation System (IDES) Additional appendix with updated information on Gay and Lesbian veterans Increased compensation rates and pension limits Expansion of discussion of the rating schedule an Individual Unemployability in Chapter 4. More references and links added Increased information on appeals An index for some of the hard-to-find topics Some material has been duplicated in more than one chapter to enable easier locating with less scrolling

2016 Edition Changes

There have been some changes since the 2014 edition that are significant for our purposes. Probably the most impactful change is that as of March 2015 the VA has eliminated the Informal Claim procedure. Important: VA only recognizes informal claims received prior to March 24, 2015. VA has also instituted a new “Intent to File” procedure. Therefore, Appendix Q, page 238 has been revised completely. Service officers need to be aware of this change and the resultant change in claims assistance. Another related change in the VA procedures is that as of March 24, 2015, a significant number of claims, such as the claim to reopen a previously denied claim, must be filed on a VA Form 21-526EZ, rather than a VA 21-4138 or simple letter.

Another significant change discussed in Chapter 17, page 161 below, is that as of March 24, 2015, in most cases, a Notice of Disagreement will have to be filed on a VA Form 21-0958 to be accepted. There are increasing types of cases where there is now a specific form required, where a 21-4138, or even an ordinary letter sufficed in the past.

Although very few cases will be affected, in March 2016 a new instruction regarding application of the “benefit of the doubt” rule in 38 C.F.R. §3.102 was published; please see the note on page 37 below.

Again more references and links have been added. We recognize that there is continually increasing use of online references and forms and have tried to integrate this into this deskbook. One of the intended uses for this deskbook is to simplify navigation of the VA’s websites.

VA has posted a number of videos that are intended to help your clients understand the claims process. Some of them are quite helpful, and we have posted links to these in specific areas where we think they can help you, or where your clients may find viewing them useful.

For this edition we have added supplemental material, and tried to place the larger portion of that material related to specific benefits in appendices; this is an attempt to make it easier to access the information and materials you need in the majority of cases, yet provide information for those circumstances where you need or want additional information and have the time to do further research.

Increased compensation and pension rates are shown. A chart showing state variations in recognition of common-law marriage, taken from the VA manual, has been included. We provided updated compensation rates but deleted much of the historical rates as they are more conveniently available online.

And, in response to a request, we’ve added more information on IDES, the effects of liberalizing legislation, and the VA electronic/paperless claims process. We took the information on Specially Adapted Housing and Special Housing Assistance out of the Special Benefits section and the Loan Guaranty Chapter and moved that to Appendix C.

Also in response to requests, because we are seeing more of the claims every day, we have added appendices with additional information regarding two conditions we are seeing more of resulting from the current conflict; Undiagnosed Illness as Appendix V page 251 and Traumatic Brain Injury as Appendix W page 254.

Preliminary points regarding this edition and its use in your office

Instead of publishing this deskbook on a CD, we have placed it online. You have the right, and we recommend it, to copy this desk book onto your computer and/or a backup secure hard drive. We’d rather you didn’t give copies to service officers who aren’t members, and who, therefore, haven’t paid dues to the association.

It is unlikely that you will need or want to print out the whole desk book. Depending on your circumstances, there will be sections that you will refer to quite often, and sections that you may not refer to for months. We would suggest printing out the Table of Contents and the Index as a ready reference. Also, if you are working from printed pages, don’t forget to check the links for possible updates.

Depending on your situation, and budget, it may pay to download some of the pamphlets that the VA webpages link to. In certain circumstances it may pay to print out pages from those pamphlets, or even the entire pamphlet.

It is a cliché that the only constant is change. VA regulations do change, and, contrary to what some critics would have us believe, the rating schedule has changed and evolved with advances in medicine, changes in areas of emphasis [that’s a bureaucratic way of saying the types of injuries that seem to come back from a given conflict], and the like. In October 2001, the Secretary's VA Claims Processing Task Force recommended that VA rewrite and organize the C&P Regulations in a logical and coherent manner. In 2002 the U.S. Court of Appeals for Veterans Claims (CAVC; formerly COVA) referred to the then current VA regulations as a ‘‘confusing tapestry’’ and criticized VA for maintaining substantive rules in its Adjudication Procedures Manual.

The Secretary endorsed that recommendation and launched the effort to reorganize and rewrite VA's Compensation and Pension Regulations. Shortly thereafter VA established a Task Force to rewrite Part 3. On November 27, 2013, VA compiled all the regulations and responded to comments in one proposed rule, providing 120 days for the public comment. The plan was to publish the Final Rule after the VA Claims backlog has been eliminated. Therefore, we anticipate that Part 3 will be superseded in its entirety in the foreseeable future with a new Part 5; service officers will need to be aware of this

change. At this time this is written we don’t know when it will happen, and we don’t know for sure if it will happen piecemeal or all at once. The proposed change is available online at http://www.va.gov/ORPM/docs/C_P_Rewrite.pdf. Before printing it out, be aware that it is a 336 page document.

VA procedures, an area of most immediate concern to us, change more rapidly. Even with the ever increasing workload, competent service officers need to be current on these changes. That is part of the reason why, over the last few years, portions of this manual have been supplemented and/or replaced by hot links. This is particularly true of the forms that used to be in the manual; almost all have been replaced by links—this way you can be sure that you are using the most current edition of a form [as you know, sometimes VA will accept earlier versions, but sometimes they can’t]. Also, you have the ability to file the form electronically, which can be more efficient, and may provide an extra month of benefits. The current workload at VA is well known, and is a matter of great concern. One of the results of this workload is that not all VA sites are kept current and consistent. There are some “dead” links, and some that are changed, and there will be more. The links in this desk book are as current as possible at the time this is written.

A significant section of the 2012 edition involved the Simplified Notification and Rating process. Apparently, the rating portion of that process was considered unsuccessful, and has been largely superseded.

While we’re still getting used to the M21-1 rewrite, parts of the rewrite have been changed significantly. For example, from WARMS:

M21-1MR Part II was rescinded on September 17, 2012 and replaced by Benefits Assistance Service Procedures Manual, M27-1. Please see M27-1 for current information and procedures. M21-1MR Part XI was rescinded on November 19, 2013 and replaced by the Fiduciary Manual.

Also, to make available the most current information in a less formal form, the VA has provided two sites that may also be helpful: KnowVA at http://www.knowva.ebenefits.va.gov/ and http://www.va.gov/opa/pressrel/ (primarily press releases, this latter site often contains releases of interest to claimants and advocates)

And finally, maybe, as this edition was in preparation, VA announced a major revamp of its internet presence. Tom Allin was appointed as the agency’s first chief veteran experience officer. VA recently launched a beta version of Vets.gov, a website site that intends to eventually give veterans single sign-on access to thousands of online services. The single site is a response to the troubling confusion Allin said he experienced shortly after he was hired, when he learned VA has upward of 1,000 different websites pertaining to veterans’ needs. If a veteran tries searching on Google, “it’s just about impossible to get something done,” Allin said last August.

Therefore it is likely that in the forseeable future many of the links in this manual may well be superseded. The good news is that the VA’s online information sources should be much more user friendly, and finding necessary information will be much more efficient. As this edition is in preparation during the first quarter of 2016, there have been changes in the VA web pages. While in process a number of the VA manual pages have taken offsite and replaced with a link to: http://www.knowva.ebenefits.va.gov/; from that site parts of the VA manual can be accessed.

CHAPTER 1

DVA, NACVSO and CVSO History, Organization

Basic facts about the VA, NACVSO, and CVSO’s, their history and organization.

References:

Title 38, U.S. Code.(38 U.S.C.) 38 Code of Federal Regulations.(38 C.F.R.) VA Pamphlet 80-05-1, Federal Benefits for Veterans and Dependents. VA Booklets: VA History in Brief. The Veterans Benefits Administration: an Organizational History: 1776–1994. http://www1.va.gov/OPA/publications/benefits_book.asp [this link should take you to the online version. There is also on that webpage a pdf version. It might be useful to download the pdf version. Since it’s 145 pages printing out the whole pamphlet may be inadvisable].

TO THE VETERANS SERVICE OFFICER:

The best way to learn claims work is by a combination of theoretical and practical training. To the extent possible, you will actually work cases under the guidance of a supervisor/instructor, using this manual to help understand what needs to be done and why. This manual is meant as a reference and a guide. You must remember that the nature of this work involves law and medicine, two fields subject to constant and sometimes rapid change. Verification of references is critical, as our work involves real benefits to real individuals.

It is extremely important that you study the laws and regulations carefully, as well as the various operating manuals for the different VA elements. In particular, you must be familiar with the Adjudication Manual M21-1, since this will be a controlling reference for the majority of VA claims you will deal with. The various VA pamphlets and booklets listed are also extremely important, since they give detailed information in clear and concise language about the eligibility and entitlement requirements for the various benefit programs.

This manual is intended to be a useful tool throughout your career. This manual alone will not make you an expert in VA claims matters. However, it should assist you in becoming familiar and comfortable with the VA claims process. NACVSO’s Education Committee will attempt to update this manual periodically.

A FEW WORDS ABOUT REFERENCES:

Since this manual was first compiled, VA references have evolved continuously and sometimes dramatically, especially regarding use of the internet as a primary source for reference materials. It is very important, therefore, that all CVSOs and Claims Representatives be familiar with and comfortable using the applicable Uniform Resource Locator (URL) addresses for each of the VA elements and activities. Virtually all, if not in fact all, relevant information including in some instances VA forms and

applications, as well as brochures, booklets and pamphlets about each operating element and activity, will be found on that element’s web pages, which are themselves part of the basic VA web site. Below is a partial listing of the most important basic URLs for VA-related issues; this is necessarily an incomplete listing. Some of these URLs will be listed again in the individual chapters. This listing is current as of the time of publication of this manual in spring 2014. It would be prudent to spend some time looking at these to see what’s available and also what sites have been replaced. Personnel who are experienced in using online materials will quickly discover (if they haven’t already done so) many other useful web sites that will further enhance their knowledge and their ability to serve their clients. We have tried to put these URLs in as hotlinks that, if you are reading this desk book on a computer that has internet access may, depending on your connection, provide a quick link to the page referenced.

An introduction “page” to VA sites: http://www.va.gov/opa/newtova.asp VA home page: http://www.va.gov/ VBA home page: http://www.vba.va.gov/ VHA home page: http://www.va.gov/health/ Compensation & Pension home page: http://www.vba.va.gov/bln/21/index.htm National Cemetery Administration home page: http://www.cem.va.gov/ Education Service home page: http://www.gibill.va.gov/ Loan Guaranty home page: http://www.homeloans.va.gov/ VA Insurance home page: http://www.insurance.va.gov/ Vocational Rehabilitation and Employment Home Page http://www.vba.va.gov/bln/vre/index.htm Board of Veterans’ Appeals home page: http://www.bva.va.gov/ Office of the General Counsel home page: http://www.va.gov/ogc/ VA Forms http://www.va.gov/vaforms/ Specialized Benefits with links and phone numbers: http://benefits.va.gov/BENEFITS/Benefits_Summary_Materials.asp http://www1.va.gov/opa/publications/benefits_book/benefits_contacts.asp http://www.vba.va.gov/VBA/benefits/factsheets/index.asp#BM4 Veterans Law Review: http://www.bva.va.gov/VLR.asp http://www.va.gov/opa/publications/benefits_book.asp

For recent CAVC cases and other legal materials that may be helpful: http://www.veteranslawlibrary.com/

Web Automated Resource Materials System (WARMS): http://www.warms.vba.va.gov/ This is the online public reference source for keeping abreast of changes to VBA regulations and operating manuals. Multiple useful links are available on the “home” page for WARMS. The site undergoes regular changes, and some of the links are not obvious. Time spent familiarizing oneself with what is available there is time well spent.

Another very useful site we referred to in the past was the VA Advisor site. The ADVISOR program is no longer available; VA recommends that additional information about VA benefits may be found on Veterans Benefits Administration website and through the Inquiry Routing & System (IRIS) database.

Some sites useful to keep up on the most recent changes: http://www.benefits.va.gov/WARMS/whats_new.asp This site shows changes to M21-1MR; it does require patience to look at the sections to determine the date of the most recent changes. http://www1.va.gov/opa/pressrel/index.cfm (VA news releases and the like) It may also be useful to look at the instructions for the VA’s own contact personnel: http://www.benefits.va.gov/WARMS/M27_1.asp

VA has posted several publications, fact sheets, and similar items. These are useful for overviews of the various benefits; you may find it helpful to print out some of the fact sheets for your clients. http://www.benefits.va.gov/BENEFITS/media-publications.asp

VA has posted a number of videos on YouTube. Most of these are for internal use or for public relations. However, one in particular may help you understand, or help you explain, some aspects of the claims process. http://www.youtube.com/watch?feature=endscreen&NR=1&v=rTtMVrY1SKg

When you pull up this video on YouTube many other VA videos will be shown as on the right of your screen, including: https://www.youtube.com/watch?v=SQCSEX8Vieg (short video overview on Fully Developed Claims); https://www.youtube.com/watch?v=TfLbUAvz3Wo (a full webinar on the FDC process).

Since the prior edition more VA videos have been posted on the internet: http://www.benefits.va.gov/BENEFITS/videos.asp Also, if you go to http://www.benefits.va.gov/compensation/ There is a sidebar with a listing of “Special Groups” . Clicking on that header will open a drop down menu of the following groups, which are “hot links” to very useful information for veterans in those categories. [depending on your software and internet connection, the links as listed below may take you to those pages directly from this deskbook]

• Elderly Veterans • Gulf War Veterans • Homeless Veterans • Incarcerated Veterans • Korean War Veterans • Lesbian, Gay, & Bisexual Veterans • Minority Veterans • Native American Veterans • Former Prisoners of War • Veterans Living Aboard • Vietnam War Veterans • Women Veterans • World War II Veterans

Other important web sites: Federal Register: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR Public & Private Laws:http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=PLAW United States Code: http://www.law.cornell.edu/uscode/text [not an “official site”] U.S. Court of Appeals for Veterans Claims (CAVC): http://www.uscourts.cavc.gov/ U.S. Court of Appeals for the Federal Circuit: http://www.cafc.uscourts.gov/ Defense Finance and Accounting Service (DFAS) http://www.dfas.mil/dfas.html

Also useful for service officers is the site where the VA posts its current workload statistics on a weekly basis. The Monday Morning Reports are a compilation of work load indicators reported by Veterans Benefits Administration (VBA) field offices. Claims pending over 125 represent the number of claims pending more than the strategic processing goal of 125 days. http://www.vba.va.gov/REPORTS/mmwr/index.asp

Like other VA reference materials, the Adjudication Manual M21-1 is constantly being revised, and indeed is currently in the process of being completely rewritten. The new manual is called M21-1MR (for Manual Rewrite); as various chapters are completely rewritten, they are listed in M21-1MR and the corresponding portions of old M21-1 are rescinded. Where appropriate, the References portion in this volume will reflect either the old or the new (or sometimes both) M21-1 citations.

Additional relevant URLs, posted as links whenever possible, are placed throughout this desk book now. We have tried to keep the link listing as current as possible.

Also, although we are relying increasingly on online research, the following books are useful for ready reference: (If your office budget won’t allow for current editions, local colleges or hospitals are often discarding prior editions when they get current editions; a medical text that is out of date for their purposes will still be very helpful for you)

A hard copy 38 Code of Federal Regulations (38 CFR) A good medical dictionary (such as Dorland’s, Taber’s, or Stedman’s) Merck Manual DSM V [DSM IV can be used almost all of the time; see Appendix M, page 229][DSM is the Diagnostic and Statistacal Manual of Mental Disorders. It is a “bible” for psychiatrists and psychologists. DSM V is the current edition] Anatomy Text Physician’s Desk Reference (PDR) Bone and Muscle chart

Two of the regular references might be somewhat confusing. 38 U.S.C. refers to volume 38 of the United States Code; that is the law, as passed by Congress and signed by the President. 38 C.F.R. is Volume 38 of the Code of Federal Regulations; these are the regulations written and published, after comment, by the VA. They have the force of law, but are not laws. For example, 38 U.S.C. 1155 is the law granting the Secretary of Veterans Affairs the authority to develop the rating schedule. The rating schedule itself is set forth in 38 C.F.R. Book C §§4.1 to §4.150. http://www.law.cornell.edu/uscode/text/38/1155 http://www.benefits.va.gov/warms/bookc.asp

For another useful source for links, information, and forms: http://nacvso.org/useful-links/

ADDITIONAL COMMENTS

One of the reasons for historical notes is to make the Service Officer aware that changes in legislation, regulations, and interpretation over the years have made a difference in how claims are handled and rated. Understanding of these changes is necessary, for example, if a veteran claims error in how his case was handled decades ago. The veteran may be correct, but he(or his advocate) may also be trying to apply a current regulation to a factual situation that existed prior to a regulatory change. (Specific examples of this would be effective dates of payment prior to 1982, or how reductions in evaluation under 38 C.F.R. §3.105(e) were handled prior to 1990).

VETERANS SERVICE OFFICERS CODE OF ETHICS

1. Confidential information, whether supplied by the veteran, the Department of Veterans Affairs, or other parties shall remain confidential and will not be released or discussed except to those personally connected to the case with a need to know in order to assist the veteran or the veteran’s dependents.

2. The Service Officer will prepare and perfect all claims to the best of his/her ability with the intent of affording the claimant the benefits to which they are entitled. The Service Officer must insure that all information is true and factual to the best of his/her knowledge.

3. The Service Officer shall maintain high professional standards in dealing with other service officers, (federal, state, and local) and other persons and agencies as necessary in service to his/her client.

4. The Service Officer will provide services without prejudice to all persons making a claim to the Department of Veterans Affairs.

5. The Service Officer will, to the best of his/her ability, maintain a working knowledge of all rules and regulations concerning veterans’ benefits and will strive to keep such knowledge updated in light of constantly changing laws and regulations.

6. Veterans Service Officers should not, under any circumstances, accept remuneration in cash or other form for services rendered.

7. Veterans Service Officers should not, under any circumstances, serve as guardians, committees, or fiduciaries for any other individuals receiving benefits from the Department of Veterans Affairs or any other agency COUNTY VETERANS SERVICE OFFICERS

Nature of Work

The County Veterans Service Officer advises local veterans and their dependents of their rights and entitlements under various federal and state laws, counsels them, and actively assists them by filling out necessary forms and papers and obtaining documents and affidavits.

Work is generated through inquiries concerning veterans’ benefits or through action of the service officer in seeking out those who need and may be entitled to assistance.

The work is complex and exacting due to the numerous state and federal laws involved and the regulations by which they are administered. These laws cover many and varied benefits including compensation, pension, insurance, death benefits, hospitalization and education.

Illustrative Examples of Work

Interviews local veterans and their dependents, advising them of their rights and benefits under federal and state laws. Guides them in choosing the most advantageous option in matters of insurance, pension, etc.

Selects and prepares proper forms for submission to the VA and other agencies.

Assists persons being served in obtaining legal documents, medical statements and affidavits, and in preparing letters and statements in support of claims.

Assists in gaining admission of eligible veterans to veterans hospitals, including the process of commitment of veterans who are mentally ill.

Assists children of veterans in obtaining educational benefits to which they may be entitled.

Advises and assists service members and their families concerning allotments, financial relief in hardship cases, disability retirement, etc.

Knowledge, Skills, and Abilities

Knowledge of veterans’ law, regulations, administrative procedures, and policies.

Working knowledge of the organization and functioning of state and federal governments, especially the U. S. Department of Veterans Affairs.

Knowledge of where and how to obtain certain public documents in this and other states.

Above-average layman’s knowledge of the human anatomy and diseases, in order to properly handle disability claims.

Ability to interpret and apply the various laws, regulations, and directives relating to veterans’ benefits, and to explain in simple terms to others.

Ability to deal sympathetically and patiently, but positively and objectively, with veterans and their dependents. It must be remembered that the majority of claimants seeking assistance honestly believe that they are entitled to benefits from the government, and many are confused and even overwhelmed by the process.

A guiding principle for Service Officers is to make the claims process more efficient; this concept works to the advantage of the VA, the Service Officer, and(most importantly)the claimant. The desired end result is for the veteran to get a decision, and payment, if in order, rather than further correspondence requesting additional evidence.

THE DEPARTMENT OF VETERANS AFFAIRS (VA) HISTORY AND ORGANIZATION

Summary:

The United States has the most comprehensive system of assistance for veterans of any nation in the world. This benefits system traces its roots back to 1636, when the Pilgrims of Plymouth Colony were at war with the Pequot Indians. The Pilgrims passed a law which provided that disabled soldiers would be supported by the colony.

The Continental Congress of 1776 encouraged enlistments during the Revolutionary War by providing pensions for soldiers who were disabled. Direct medical and hospital care given to veterans in the early days of the Republic was provided by the individual States and communities. In 1811, the first domiciliary and medical facility for veterans was authorized by the Federal Government. In the 19th century, the Nation's veteran’s assistance program was expanded to include benefits and pensions not only for veterans, but also their widows and dependents.

For the first few years veterans’ benefits were handled by the Federal courts, but this quickly proved to be unsatisfactory and responsibility for administering benefits was assigned to the War Department.

Initially, no clear distinctions were made between service pensions, pensions for needy, aged, or disabled veterans, and pensions based on disabilities arising from military service. Different pension programs, with different eligibility requirements, were enacted for veterans of each of the wars the United States fought during the first half of the nineteenth century. Benefits for survivors of wartime veterans were first authorized about 1806.

Until 1930 responsibility for various veterans’ programs was fragmented among several different agencies. During the latter part of the 1800s and the early 1900s, a Bureau of Pensions administered veterans’ pension programs; at different times this Bureau was variously under the jurisdiction of the War Department, the Navy Department, the Treasury Department, and the Interior Department. In 1914 a Bureau of War Risk Insurance was established under the Treasury Department to insure American ships and cargoes against the hazards of carrying war materials to the Allies. When the United States formally entered World War I in 1917, the Bureau of War Risk Insurance was assigned the additional tasks of providing life insurance for American troops and administering veterans’ and survivors’ benefits after the war. In 1918 a Federal Board for Vocational Education was established as an independent agency to provide vocational rehabilitation for disabled World War I veterans, based on eligibility as determined by the Bureau of War Risk Insurance. The Public Health Service was charged with responsibility for providing medical care for World War I veterans.

In 1921 the Veterans Bureau was established as an independent agency to consolidate all benefits for World War I veterans (life insurance, disability and death compensation, vocational rehabilitation, medical care) under one agency. The Bureau of Pensions continued to separately exist, to handle benefits for veterans of previous wars and their survivors.

The Veterans Administration was established in 1930, merging the Veterans Bureau and the Bureau of Pensions and finally bringing all veterans’ benefits programs under the jurisdiction of a single agency. Following World War II and subsequent, the Veterans Administration grew to become the largest non- Cabinet agency in the Federal Government.

On March 15, 1989, the Veterans Administration became a Cabinet-level agency, changing its name to the U.S. Department of Veterans Affairs. The Administrator of Veterans Affairs became the Secretary of Veterans Affairs. The new agency was composed of three primary sub-agencies, each headed by an Undersecretary: the Veterans Benefits Administration (VBA); the Veterans Health Administration (VHA); and the National Cemetery Administration, plus a number of subsidiary offices and Secretariats, including the Board of Veterans’ Appeals, the Office of General Counsel, and the Office of the Inspector General.

VBA administers all of the non-medical benefits programs for veterans, dependents and survivors: the compensation and pension programs; vocational rehabilitation for disabled veterans; various education and training assistance programs for veterans, dependents and survivors; loan guaranty programs for veterans and eligible surviving spouses; and a number of life insurance programs for veterans. VBA also provides a burial allowance for eligible veterans.

VHA provides health care facilities for veterans, and, in some cases, their dependents or survivors. It is one of the largest health care delivery systems in the world. Nationwide, VA operates more than 170 medical centers, more than 80% of which are affiliated with a university school of medicine. VHA averages nearly 100,000 inpatients per day. In addition, VHA operates numerous outpatient clinics, readjustment counseling centers, domiciliaries, and nursing homes.

The National Cemetery Administration currently maintains approximately 3.2 million gravesites at 131 national cemeteries in 39 states and Puerto Rico, as well as in 33 soldiers’ lots and monument sites.

CHAPTER 2

GENERAL PROVISIONS, DEFINITIONS & PERIODS OF WAR

Objective:

A Service Officer needs to be familiar with the various benefits administered by the U.S. Department of Veterans Affairs (VA), and with the general provisions and definitions used in the context of these benefits. He/she also needs to be aware of the definitions of “wartime service” for purposes of different agencies. Additional definitions and more specific information are in the module for each specific benefit.

References:

Title 38, U.S. Code 38 Code of Federal Regulations., Part 3 VA Pamphlet: 80-05-1, Federal Benefits for Veterans and Dependents. http://www.vba.va.gov/VBA/benefits/factsheets/index.asp

Summary:

The Department of Veterans Affairs, its activities, organization, and the scope of the benefits it administers are all authorized under various statutes enacted by Congress. These laws are codified in Title 38 of the U.S. Code (USC or USCS). Section 501 of 38 USC gives the Secretary of The Department of Veterans Affairs the authority to promulgate such regulations as necessary to administer the law. The rules and regulations established for this purpose are codified in 38 Code of Federal Regulations (CFR).

DEFINITIONS

1. (Unless otherwise specified, when section or chapter is mentioned in this part, it is referencing Title 38, United States Code.[38 USC])

a. Benefits. “Benefits” available to veterans and their dependents authorized by laws administered by the VA.

b. Veteran. “Veteran” means person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. (Sec. 101(2), 1301)

c. Veteran of Any War. “Veteran of any war” means any veteran who served in the active military, naval, or air service during a period of war. (Sec. 101 (12))

d. Active Military, Naval, or Air Service. “Active military, naval, or air service” includes active duty; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty training during which the individual concerned was disabled or died

from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. (Sec. 101 (24))

e. Compensation. “Compensation” means a monthly payment made to the veteran because of a service-connected disability or to a [surviving] spouse, child or dependent parent of a veteran because of a service-connected death occurring before January 1, 1957. (Sec. 101(13))

f. Dependency and Indemnity Compensation. “Dependency and Indemnity Compensation” means a monthly payment made to a surviving spouse, child or parent because of a service- connected death occurring after December 31, 1956, or the election in the case of such a death occurring before January 1, 1957. (Sec. 101 (14))

g. Pension. “Pension” is a monthly or (other periodic payment) payment to a wartime veteran because of service, age or (nonservice-connected disability), or to a surviving spouse or child of a veteran because of the nonservice-connected death of the veteran. (Sec. 101 (15))

h. Service Connected. “Service connected” means with respect to disability or death, that such disability was incurred in or aggravated during service, or the death resulted from a disability incurred or aggravated in line of duty in the active military, naval, or air service. (Sec. 101 (16))

i. Nonservice Connected. “Nonservice connected” means with respect to disability or death, that such disability was not incurred or aggravated, or that the death did not result from a disability incurred or aggravated, in line of duty in the active military, naval, or air service. (Sec. 101 (17))

j. Preservation of Disability Ratings. A disability, which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes, will not be reduced to less than such evaluation except upon a showing that such a rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes, which has been in force for 20 or more years, will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. Service connection for any disability or death which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud, or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the finding of service connection to the effective date of the rating decision severing service connection. The protection afforded in this section extends to claims for dependency and indemnity compensation or death pension. (Secs. 110, 1159, 5112; 38 CFR §3.951, §3.957)

k. Line of Duty. Injury or disease incurred on active duty, including authorized leave, unless such injury or disease was the result of the veteran’s own willful misconduct. (Sec. 105; 38 CFR §3.1, §3.301) l. Willful Misconduct. An act involving deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. 38 CFR §3.1(n))

2. The periods recognized by VA as constituting wartime service (excluding those wars which began prior to 1900) are:

• Mexican Border Period: May 9, 1916 to April 5, 1917, if the veteran served in Mexico, on the borders thereof or the waters adjacent thereto. (Authority: 38 U.S.C. 101(30))

• World War I: April 6, 1917 through November 11, 1918, inclusive. If the veteran served with U.S. forces in Russia, the ending date is April 1, 1920. Service after November 11, 1918 and before July 2, 1921 is considered World War I service if the veteran also served in the active military, naval, or air service after April 5, 1917 and before November 12, 1918.

• World War II: December 7, 1941 through December 31, 1946, inclusive. If the veteran was in service on December 31, 1946, continuous service before July 26, 1947 is considered World War II service.

• Korean Conflict: June 27, 1950 through January 31, 1955, inclusive.

• Vietnam Era: February 28, 1961 through May 7, 1975, inclusive, if the veteran served in Vietnam during that period. In all other cases, August 5, 1964 through May 7, 1975, inclusive. (Authority: 38 U.S.C. 101(29))

• Persian Gulf War: August 2, 1990 through a (future) date to be prescribed by Presidential proclamation or law. (Authority: 38 U.S.C. 101(33)) Note: at the time of publication of this edition, this period of wartime service has continued for almost 26 years. Wartime benefits are payable for veterans who served during this period)

3. ACTIVE DUTY. Active duty means full-time service:

a. In the Armed Forces. (Other than active duty for training.)

b. Service as a cadet at the US Military, Air Force, or Coast Guard Academy; or as a midshipman at the U. S. Naval Academy.

c. Travel time authorized to report for duty is included in active duty. (Sec. 101 (21))

4. ACTIVE DUTY FOR TRAINING “Active duty for training” means:

a. Reservists on full-time duty for training purposes in the Armed Forces.

b. Full-time duty for training purposes performed by a commissioned officer of the Reserve Corps of the Public Health service on or after July 29, 1945, or before that date under circumstances affording entitlement to full military benefits, or at any time for purposes of Dependency and Indemnity Compensation (DIC);

c. Members of the National Guard or Air National Guard of any state, performing full-time training duty, under title 32, 316, 502, 503, 504, or 505, or the prior corresponding provisions of law;

d. Annual training duty by a member of a Senior ROTC (Reserve Officers’ Training Corps) program when the member is ordered to duty for the purpose of field training or a practice cruise for a period of not less than 4 weeks. A “senior” ROTC program is a 2- or 4-year program at the college or university level.

e. Including travel to and from such duty (Sec. 101 (22)).

5. INACTIVE DUTY TRAINING. “Inactive duty training” means

a. Duty, other than full-time duty, prescribed for Reservists, including commissioned officers of the Reserve Corps of the Public Health Service by the Secretary concerned under 37 USC §206 or any other provision of law;

b. Special additional duties authorized for Reservists including commissioned officers of the Reserve Corps of the Public Health Service, performed by them on “a voluntary” basis;

c. Training other than active duty for training by a member of or applicant for membership in the Senior Reserve Officers’ Training Corps prescribed under chapter 103 of title 10, United States Code;

d. Inactive duty training does not include work or study performed in connection with correspondence courses, attendance at an educational institution in an inactive status, or duty performed as a temporary member of the Coast Guard Reserve. (Sec. 101 (23));

e. Travel time authorized to perform active duty for training or inactive duty for training includes authorized travel to and from such duty. (Sec. 106 (e), Op. G.C. 1-64).

6. RELATIONSHIP BY MARRIAGE

a. Spouse. The term “spouse” means a person of the opposite sex whose marriage meets the requirements of subparagraph (b) below. (Sec. 101 (3), Public Law 92-540, 38 CFR §3.50(c), §3.52)[For recent changes pertinent to this please see Appendix R, page 241]

b. Marriage. Means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the rights to benefits accrued. In order to prove relationship by marriage, proof of the dissolution of prior marriages, of either party, by death, divorce, or annulment is required. See subparagraph c below. Evidence in one of the following forms may be acceptable if the higher type evidence is not of record.

1. Certified copy or the public record or an abstract of the public record; 2. Certified Copy of the church record; 3. Official report from service department as to marriage which occurred during service: 4. Affidavit of clergyman or magistrate who officiated;

5. The original certificate of marriage accompanied by proof of its genuineness and the authority of the person to perform the marriage; 6. Affidavits or certified statements of two or more eyewitnesses to the ceremony 7. Any other secondary evidence, which reasonably supports a belief by VA that a valid marriage actually occurred. (38 CFR §3.50, §3.205) c. Valid Marriage. The legality of a marriage will be accepted on the basis of proof of marriage, either ceremonial or common law. In the absence of conflicting information, the claimant’s certified statement concerning the date, place, and circumstances of dissolution of any prior marriages may be accepted as establishing a valid marriage. When necessary, because of insufficient or conflicting information, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or abstract of final decree of divorce, or annulment specifically citing the effects of the decree. In those instances when the claimant being assisted by a (VA) Veterans Service Representative does not have the necessary evidence, he or she will send the request to the proper Custodian of Public Records for the document. (Sec. 103, 38 CFR §3.1(j), §3.205) d. Surviving Spouse. Means a person of the opposite sex who is a widow or widower at the time of the veteran’s death, who lived with the veteran continuously to date of death except when there was a separation caused by the veteran without fault of the spouse. (38 CFR §3.50(c), 3.52) e. Deemed Valid Marriage. Where an attempted marriage of claimant to the veteran was invalid because of a legal impediment, the marriage will nevertheless be deemed valid if: 1. The marriage occurred one year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage, (or upon the birth of a veterans child) and 2. The claimant entered into the marriage without knowledge of the impediment, and 3. The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death, and 4. No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran’s death. (Sec. 103 (a), 38 CFR §3.52) f. Legal Impediment. In addition to other evidence to prove the “marriage,” the claimant is required to submit a signed statement that he or she had no knowledge of an impediment to marriage to the veteran. His or her statement will be accepted as proof of the fact in the absence of information to the contrary. The Administrator’s Decision 979, April 2, 1962 provides for the possible recognition of a “common-law” marriage consummated in good faith in one of the several States that do not recognize the common law. g. Continuous Cohabitation. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be met when the evidence show there was no separation due to the fault of the surviving spouse. Temporary separations, which occur including those caused through fault of either party, will not break the continuity of the cohabitation. If the evidence establishes that the separation was by mutual consent for purposes of convenience, health, business, or any other reason, which did not show intent on the part of the surviving spouse to desert the veteran-spouse, the continuity of the cohabitation will not be considered broken. If the surviving spouse was separated from the

veteran prior to his or her death, assist in the preparation of a statement. Use VA Form 21- 4138, Statement in Support of Claim, because it contains the penalty clause. The statement must include all the following information:

1. All of the facts and circumstances leading up to and attending the separation 2. Date of separation 3. Spouse’s addresses, with dates, during the separation 4. Places of residence of the veteran during the separation 5. Whether or not there was any separation agreement entered into between the veteran and the spouse; if so, a certified copy of the agreement must be attached. 6. Whether or not either the veteran or the spouse ever secured, or applied for, a divorce 7. Any other facts pertaining to the separation, efforts for reconciliation, communications, etc. 8. Whether the surviving spouse has held himself or herself out as the spouse of anyone, that is, lived with anyone as man and wife, since the veteran’s death. 9. The surviving spouse’s statement should be supported by affidavits or certified statements from two or more responsible persons, preferably disinterested, who must state their ages, and the facts to which they subscribe, relating facts only as they know them, not as they were told or as they understood. Hearsay evidence is worthless. The reason for subparagraphs (2), (3), and (4) above is that it may be necessary to require certification that a divorce was not obtained in any of the various jurisdictions or residence. (Sec. 101 (3); 38 CFR §3.53) h. Common-Law Marriage. Common-law marriage is an informal agreement by a man and woman, who are both legally free to contract a marriage, to live as man and wife. Once established in a jurisdiction that recognizes the validity of common-law marriage, the marriage is legal and binding and each party to the marriage assumes all of the responsibilities of marriage incident to the laws of any jurisdiction where the parties may reside thereafter. When applying for benefits based on a common-law marriage, the claimant should furnish VA Form 21-4170, Statement of Marital Relationship, and at least two supporting statements on VA Form 21-4171, Supporting Statement Regarding Marriage. The VA 21-4170 may be offensive to a surviving spouse who is requested to establish a common-law marriage when she or he alleges a ceremonial marriage, but cannot produce the necessary evidence to prove it. When a ceremonial marriage cannot be proved by the best evidence (the public record), it would be proper to ask for secondary proof of ceremonial marriage such as statements from witnesses present at the ceremony. If there is a failure of this type of proof, the surviving spouse should then be asked for evidence of a “marriage agreement,” using this euphemism for “common-law marriage,” which would avoid the offensive or indelicate implication of the latter term. See M21-1MR, Part III, Subpart iii, Chapter 5, Section C. (This Section includes a list of states where common-law marriage is recognized, effective dates when some states withdrew such recognition, and related information). That chart has been reproduced as Appendix U page 250.

Research Note : for service officers wishing to learn more about the legal aspects of common-law marriage in the VA context, and to see a reminder about how benefit of the doubt does not apply to questions of status, the CAVC issued, in February, 2012, an opinion in MICHELE D. BURDEN VS. SHINSEKI, that is very instructive.

7. REMARRIAGE OF SURVIVING SPOUSE

a. Remarriage. Remarriage or inference of remarriage of a surviving spouse is a bar against receiving benefits based on that veteran’s services for death pension only. If remarriage is dissolved by death or divorce then the remarried spouse is eligible to reapply for DIC. (See Note)

b. Void and Annulled Marriage. The remarriage of the surviving spouse shall not bar the furnishing of benefits to the surviving spouse if the remarriage is void or has been annulled by a court with basic decree annulment authority unless VA determines that the annulment was secured through fraud by either party or by collusion. (Sec. 103; 38 §CFR 3.55)

c. Annulment of Marriage. A certified copy or certified abstract of the decree of annulment is required. A decree will be accepted unless there is a reason to question the basic authority of the court to make annulment decree or there is evidence indicating that the annulment may have been obtained through fraud or collusion. (38 CFR §§3.55, 3.207)

d. Court Decisions---Unremarried Surviving Spouse. A decision given by a federal court holding that a surviving spouse of a veteran has not remarried will be followed in determining eligibility for pension, compensation or DIC. (38 CFR §3.214)

Note: 38 CFR §3.55(a)(2). On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage:

(i) Has been terminated by death, or

(ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion.

8. RELATIONSHIP OF CHILD

a. Child. Means an unmarried child of the veteran who is under the age of 18 years; who became permanently incapable of self-support before attaining age 18; or who between the ages of 18 and 23 is pursuing a course of instruction at an approved educational institution; and

1. Who is a legitimate child or 2. A legally adopted child, (38 CFR §3.87(c)), or 3. A stepchild who is a member of the veteran’s household or was a member at the time of the veteran’s death, or

4. An illegitimate child, when acknowledged in writing by the veteran. Also if he has been judicially decreed to be the father of the child, or if otherwise shown by evidence satisfactory to VA to be the father of the child, or 5. A child living in the veteran’s household at the time of death, who is adopted by the surviving spouse within two years after the veteran’s death. The child must not have been receiving regular support from any individual except the veteran and his or her spouse, or from any public or private welfare organization, which furnished assistance for children. Payment of benefits on behalf of such child will be effective from the date of adoption. (Sec. 101 (4), 38 CFR §3.57 (c)).

b. Legitimate Child. When necessary to prove legitimacy of a child, prove legality of marriage of the mother or father of the child to the veteran, or show it is legitimate by state laws together with birth certificate or other evidence outlined below.

c. Illegitimate Child. As to the mother, proof of birth is all that is required; as to the father, proof of relationship will be as follows:

1. Acknowledgment in writing, signed by him 2. Evidence identifying him as the child’s father by judicial decree ordering him to contribute to the child’s support or for any other purpose; 3. Any secondary evidence which supports relationship, such as: a. A certified copy of the public record of birth or church record of baptism showing that the veteran was the informant and was named the father of the child b. Statements of disinterested persons who know that the veteran accepted the child as his. c. Information from service departments or public records such as school or welfare agencies which show that with his knowledge the veteran was named as the father of the child. (38 CFR §3.210(b)) d. Adopted Child. A copy of the decree of adoption or a copy of the adoption placement agreement. (38 CFR §3.210(c)) e. Child Adopted by Spouse After Death of Veteran. A statement of the adoptive parent or custodian of the child will also be required to show that the child was a member of the veteran’s household at the date of death, was adopted by the veteran’s spouse within two years after the veteran’s death, and that recurring contributions were not being received for the child’s maintenance sufficient to provide for the major portion of the child’s support from any person other than the veteran, his or her spouse, or from any public or private welfare organization which furnishes assistance to children. (38 CFR §3.210) f. Stepchild. Evidence of relationship will consist of proof of birth; evidence of marriage of the veteran to the natural parent of the child, and evidence that the child is a member of the veteran’s household, or was a member of a deceased veteran’s household at the time of death. (38 CFR §3.210) g. Children of Surviving Spouses. A “marriage deemed valid” extends all benefits to all children of the surviving spouse as described in section 101 (4). h. Age. For proof of age see paragraph 11 below.

9. RELATIONSHIP OF PARENTS

Parents. Means a father, a mother, a father through adoption, a mother through adoption, or a person who stood in the relationship of a parent to the veteran for not less that 1 year at any time before entry into active service; or

a. If two persons stood in the relationship of a father or a mother for 1 year or more, the person who last stood in that relationship before the veteran’s last entry into service.

10. PROOF OF RELATIONSHIP (M21-1MR 3 III 5, and 38 CFR §§3.201 through 3.213)

Proof of relationship is required in all cases. The acceptable forms of evidence are stated in 38 CFR §3.205 and §3.209. Preference is given to certified copies or abstracts from public records. When these are unavailable, alternative evidence forms listed in the regulations may be used.

11. PROOF OF AGE

a Normally, the veteran’s or surviving spouse’s statement as to age and date of birth will be accepted when in agreement with other records. b. The following types of evidence may be used when necessary to prove age or date of birth. The evidence is listed in the order preferred: (38 CFR 3.202, 3.204, 3.208, 3.209)

1. A copy or abstract of the public record of birth. Records established more than four years after birth will be acceptable if not inconsistent with material of record in VA. 2. Copy or church record of baptism. Records established more than four years after birth must be consistent with material of record in VA, which include at least one reference to age or relationship which was made at a time when such reference was not essential to establishing entitlement to the benefit claimed. 3. Official report from service department as to birth which occurred during service. 4. Affidavit or certified statement of the physician or midwife in attendance at birth 5. Copy from Bible or other family records, certified by a notary public. Copy the facts as found including the condition of the entries, the record itself, and the year in which the book of record was printed. 6. Affidavits or certified statements of two or more persons, preferably disinterested, who state the age, name, date, and place of birth of the person whose age or relationship is being established, and that to their own knowledge such person is the child of such parents, naming them and stating their source of knowledge. 7. Other evidence, such as census records, baptismal or hospital records, insurance policies, school, employment and immigration or naturalization records. Naturalization records may not be duplicated; therefore, the facts may be copied and authenticated with VA Form 4505. c. To secure birth certificates of children born on military bases located in foreign countries, write the Passport Office, Department of State, Washington, D. C. 20524

12. PROOF OF DEATH

Preferred evidence to prove death: (38 CFR §3.211)

1. A copy of the public record, or when not readily available, a certified copy of the coroner’s report of death which properly identifies the person. 2. When death occurs in a medical facility of the United States Government, a certificate signed by a medical officer is acceptable. 3. The official report of death of a member of the Uniformed Services from the Secretary concerned needs no further verification. 4. When death occurs abroad, acceptable evidence may be obtained by: a. A United States Consular report of death bearing the signature and seal of the United State Consul. b. A copy of the public record of death authenticated by a United States Consul or other agency of the State Department. c. An official report of death from the head of the department concerned, when the deceased person at time of death was a civilian employee of that department. d. If the above-described evidence cannot be submitted, the reason must be stated and the fact of death may be established by affidavits of persons who have personal knowledge of the fact of death, have viewed the body of the deceased, know it to be the body of the person whose death is being established, giving all the facts and circumstances concerning the death, place, date, time and cause. When it is indicated that the veteran died under circumstances which preclude recovery or identification, the fact of death must be established by the best evidence, which from the nature of the case, must be supposed to exist. In the absence of evidence to the contrary, a finding of death made by another federal agency will be accepted by VA. (38 CFR §3.211)

13. SEVEN-YEAR ABSENCE

No state law providing for presumption of death shall be applicable to claims for benefits under laws administered by VA. If evidence is submitted, establishing the continued and unexplained absence of any individual from home and family for a seven-year period shall be considered sufficiently proved. Except in a suit brought pursuant to section 784, Government insurance, the finding of death by VA shall be final and conclusive. See VA Form 21-1775, Statement of Disappearance.

38 U. S. Code § 5701. Confidential nature of claims

(a)All files, records, reports, and other papers and documents pertaining to any claim under any of the laws administered by the Secretary and the names and addresses of present or former members of the Armed Forces, and their dependents, in the possession of the Department shall be confidential and privileged, and no disclosure thereof shall be made except as provided in this section.

(b)The Secretary shall make disclosure of such files, records, reports, and other papers and documents as are described in subsection (a) of this section as follows: (1)To a claimant or duly authorized agent or representative of a claimant as to matters concerning the claimant alone when, in the judgment of the Secretary, such disclosure would not be injurious to the physical or mental health of the claimant and to an independent medical expert or experts for an advisory opinion pursuant to section 5109 or 7109 of this title. (2)When required by process of a United States court to be produced in any suit or proceeding therein pending. (3)When required by any department or other agency of the United States Government. (4)In all proceedings in the nature of an inquest into the mental competency of a claimant. (5)In any suit or other judicial proceeding when in the judgment of the Secretary such disclosure is deemed necessary and proper. (6)In connection with any proceeding for the collection of an amount owed to the United States by virtue of a person’s participation in any benefit program administered by the Secretary when in the judgment of the Secretary such disclosure is deemed necessary and proper.

(c) (1)The amount of any payment made by the Secretary to any person receiving benefits under a program administered by the Secretary shall be made known to any person who applies for such information. (2)Any appraisal report or certificate of reasonable value submitted to or prepared by the Secretary in connection with any loan guaranteed, insured, or made under chapter 37 of this title shall be made available to any person who applies for such report or certificate. (3)Subject to the approval of the President, the Secretary may publish at any time and in any manner any or all information of record pertaining to any claim filed with the Secretary if the Secretary determines that the public interest warrants or requires such publication.

(d)The Secretary as a matter of discretion may authorize an inspection of Department records by duly authorized representatives of recognized organizations.

(e)Except as otherwise specifically provided in this section with respect to certain information, the Secretary may release information, statistics, or reports to individuals or organizations when in the Secretary’s judgment such release would serve a useful purpose.

(f)The Secretary may, pursuant to regulations the Secretary shall prescribe, release the name or address, or both, of any present or former member of the Armed Forces, or a dependent of a present or former member of the Armed Forces, (1) to any nonprofit organization if the release is directly connected with the conduct of programs and the utilization of benefits under this title, or (2) to any criminal or civil law enforcement governmental agency or instrumentality charged under applicable law with the protection of the public health or safety if a qualified representative of such agency or instrumentality has made a written request that such name or address be provided for a purpose authorized by law. Any organization or member thereof or other person who, knowing that the use of any name or address released by the Secretary pursuant to the preceding sentence is limited to the purpose specified in such sentence, willfully uses such name or address for a purpose other than those so specified, shall be guilty of a misdemeanor and be fined not more than $5,000 in the case of a first offense and not more than $20,000 in the case of any subsequent offense.

(g) (1)Subject to the provisions of this subsection, and under regulations which the Secretary shall prescribe, the Secretary may release the name or address, or both, of any person who is a present or former member of the Armed Forces, or who is a dependent of a present or former member of the Armed Forces, to a consumer reporting agency if the release of such information is necessary for a purpose described in paragraph (2) of this subsection. (2)A release of information under paragraph (1) of this subsection concerning a person described in such paragraph may be made for the purpose of— (A)locating such a person— (i)who has been administratively determined to be indebted to the United States by virtue of the person’s participation in a benefits program administered by the Secretary; or (ii)if the Secretary has determined under such regulations that (I) it is necessary to locate such person in order to conduct a study pursuant to section 527 of this title or a study required by any other provision of law, and (II) all reasonable steps have been taken to assure that the release of such information to such reporting agency will not have an adverse effect on such person; or (B)obtaining a consumer report in order to assess the ability of a person described in subparagraph (A)(i) of this paragraph to repay the indebtedness of such person to the United States, but the Secretary may release the name or address of such person for the purpose stated in this clause only if the Secretary determines under such regulations that such person has failed to respond appropriately to administrative efforts to collect such indebtedness. (3)The Secretary may also release to a consumer reporting agency, for the purposes specified in subparagraph (A) or (B) of paragraph (2) of this subsection, such other information as the Secretary determines under such regulations is reasonably necessary to identify a person described in such paragraph, except that the Secretary may not release to a consumer reporting agency any information which indicates any indebtedness on the part of such person to the United States or any information which reflects adversely on such person. Before releasing any information under this paragraph, the Secretary shall, under such regulations, take reasonable steps to provide for the protection of the personal privacy of persons about whom information is proposed to be released under this paragraph. (4) (A)If the Secretary determines, under regulations which the Secretary shall prescribe, that a person described in paragraph (1) of this subsection has failed to respond appropriately to reasonable administrative efforts to collect an indebtedness of such person described in paragraph (2)(A)(i) of this subsection, the Secretary may release information concerning the indebtedness, including the name and address of such person, to a consumer reporting agency for the purpose of making such information available for inclusion in consumer reports regarding such person and, if necessary, for the purpose of locating such person, if— (i)the Secretary has (I) made reasonable efforts to notify such person of such person’s right to dispute through prescribed administrative processes the existence or amount of such indebtedness and of such person’s right to request a waiver of such indebtedness under section 5302 of this title, (II) afforded such person a reasonable opportunity to exercise such rights, and (III) made a determination with respect to any such dispute or request; and (ii)thirty calendar days have elapsed after the day on which the Secretary has made a determination that reasonable efforts have been made to notify such person (I) that the Secretary intends to release such information for such purpose or purposes, and (II) that, upon the request of such person, the Secretary shall inform such person of whether such information has been so released and of the name and address of each consumer reporting agency to which such information was released by the Secretary and of the specific information so released.

(B)After release of any information under subparagraph (A) of this paragraph concerning the indebtedness of any person, the Secretary shall promptly notify— (i)each consumer reporting agency to which such information has been released by the Secretary; and (ii)each consumer reporting agency described in subsection (i)(3)(B)(i) of this section to which such information has been transmitted by the Secretary through a consumer reporting agency described in subsection (i)(3)(B)(ii)(I) of this section, of any substantial change in the status or amount of such indebtedness and, upon the request of any such consumer reporting agency for verification of any or all information so released, promptly verify or correct, as appropriate, such information. The Secretary shall also, after the release of such information, inform such person, upon the request of such person, of the name and address of each consumer reporting agency described in clause (i) or (ii) of this subparagraph to which such information was released or transmitted by the Secretary and of the specific information so released or transmitted.

(h) (1)Under regulations which the Secretary shall prescribe, the Secretary may release the name or address, or both, of any person who is a present or former member of the Armed Forces, or who is a dependent of a present or former member of the Armed Forces (and other information relating to the identity of such person), to any person in a category of persons described in such regulations and specified in such regulations as a category of persons to whom such information may be released, if the release of such information is necessary for a purpose described in paragraph (2) of this subsection. (2)A release of information under paragraph (1) of this subsection may be made for the purpose of— (A) determining the credit-worthiness, credit capacity, income, or financial resources of a person who has (i) applied for any benefit under chapter 37 of this title, or (ii) submitted an offer to the Secretary for the purchase of property acquired by the Secretary under section 3720(a)(5) of this title; (B)verifying, either before or after the Secretary has approved a person’s application for assistance in the form of a loan guaranty or loan insurance under chapter 37 of this title, information submitted by a lender to the Secretary regarding the creditworthiness, credit capacity, income, or financial resources of such person; (C)offering for sale or other disposition by the Secretary, pursuant to section 3720 of this title, any loan or installment sale contract owned or held by the Secretary; or (D) providing assistance to any applicant for benefits under chapter 37 of this title or administering such benefits if the Secretary promptly records the fact of such release in appropriate records pertaining to the person concerning whom such release was made.

(i) (1)No contract entered into for any of the purposes of subsection (g) or (h) of this section, and no action taken pursuant to any such contract or either such subsection, shall result in the application of section 552a of title 5 to any consumer reporting agency or any employee of a consumer reporting agency. (2)The Secretary shall take reasonable steps to provide for the protection of the personal privacy of persons about whom information is disclosed under subsection (g) or (h) of this section. (3)For the purposes of this subsection and of subsection (g) of this section— (A)The term “consumer report” has the meaning provided such term in subsection (d) of section 603 of the Fair Credit Reporting Act (15 U.S.C. 1681a(d)). (B)The term “consumer reporting agency” means— (i)a consumer reporting agency as such term is defined in subsection (f) of section 603 of the Fair Credit Reporting Act (15 U.S.C. 1681a(f)), or

(ii)any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of (I) obtaining credit or other information on consumers for the purpose of furnishing such information to consumer reporting agencies (as defined in clause (i) of this paragraph), or (II) serving as a marketing agent under arrangements enabling third parties to obtain such information from such reporting agencies.

(j)Except as provided in subsection (i)(1) of this section, any disclosure made pursuant to this section shall be made in accordance with the provisions of section 552a of title 5.

(k)(1)(A)Under regulations that the Secretary shall prescribe, the Secretary may disclose the name and address of any individual described in subparagraph (C) to an entity described in subparagraph (B) in order to facilitate the determination by such entity whether the individual is, or after death will be, a suitable organ, tissue, or eye donor if— (i)the individual is near death (as determined by the Secretary) or is deceased; and (ii)the disclosure is permitted under regulations promulgated pursuant to section 264 of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note ). (B)An entity described in this subparagraph is— (i)an organ procurement organization, including eye and tissue banks; or (ii)an entity that the Secretary has determined— (I)is substantially similar in function, professionalism, and reliability to an organ procurement organization; and (II)should be treated for purposes of this subsection in the same manner as an organ procurement organization. (C)An individual described in this subparagraph is— (i)a veteran; or (ii)a dependent of veteran. (2)In this subsection, the term “organ procurement organization” has the meaning given the term “qualified organ procurement organization” in section 371(b) of the Public Health Service Act (42 U.S.C. §273(b)).

Title 38 USC §7332. Confidentiality of certain medical records

(a) (1) Records of the identity, diagnosis, prognosis, or treatment of any patient or subject which are maintained in connection with the performance of any program or activity (including education, training, treatment, rehabilitation, or research) relating to drug abuse, alcoholism or alcohol abuse, infection with the Human Immunodeficiency Virus (HIV), or sickle cell anemia which is carried out by or for the Department under this title shall, except as provided in subsections (e) and (f), be confidential, and (section 5701 of this title to the contrary notwithstanding) such records may be disclosed only for the purpose and under the circumstances expressly authorized under subsection (b). (2) Paragraph (1) prohibits the disclosure to any person or entity other than the patient or subject concerned of the fact that a special written consent is required in order for such records to be disclosed. (b) (1) The content of any record referred to in subsection (a) may be disclosed by the Secretary in accordance with the prior written consent of the patient or subject with

respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed in regulations prescribed by the Secretary.

(2) Whether or not any patient or subject, with respect to whom any given record referred to in subsection (a) is maintained, gives written consent, the content of such record may be disclosed by the Secretary as follows:

(A) To medical personnel to the extent necessary to meet a bona fide medical emergency.

(B) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient or subject in any report of such research, audit, or evaluation, or otherwise disclose patient or subject identities in any manner.

(C) (1) In the case of any record which is maintained in connection with the performance of any program or activity relating to infection with the Human Immunodeficiency Virus (HIV), to a Federal, State, or local public-health authority, charged under Federal or State law with the protection of the public health, and to which Federal or State law requires disclosure of such record, if a qualified representative of such authority has made a written request that such record be provided as required pursuant to such law for a purpose authorized by such law.

(2) A person to whom a record is disclosed under this paragraph may not redisclose or use such record for a purpose other than that for which the disclosure was made.

(D) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefore. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient or subject, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.

(3) In the event that the patient or subject who is the subject of any record referred to in subsection (a) is deceased, the content of any such record may be disclosed by the Secretary only upon the prior written request of the next of kin, executor, administrator, or other personal representative of such patient or subject and only if the Secretary determines that such disclosure is necessary for such survivor to obtain benefits to which such survivor may be entitled, including the pursuit of legal action, but then only to the extent, under such circumstances, and for such purposes as may be allowed in regulations prescribed pursuant to section 7334 of this title.

(c) Except as authorized by a court order granted under subsection (b)(2)(D), no record referred to in subsection (a) may be used to initiate or substantiate any criminal charges against, or to conduct any investigation of, a patient or subject.

(d) The prohibitions of this section shall continue to apply to records concerning any person who has been a patient or subject, irrespective of whether or when such person ceases to be a patient.

(e) The prohibitions of this section shall not prevent any interchange of records—within and among those components of the Department furnishing health care to veterans, or determining eligibility for benefits under this title; or between such components furnishing health care to veterans and the Armed Forces. (f) (1) Notwithstanding subsection (a) but subject to paragraph (2), a physician or a professional counselor may disclose information or records indicating that a patient or subject is infected with the Human Immunodeficiency Virus (HIV) if the disclosure is made to (A) the spouse of the patient or subject, or (B) to an individual whom the patient or subject has, during the process of professional counseling or of testing to determine whether the patient or subject is infected with such virus, identified as being a sexual partner of such patient or subject.

(2) (A) A disclosure under paragraph (1) may be made only if the physician or counselor, after making reasonable efforts to counsel and encourage the patient or subject to provide the information to the spouse or sexual partner, reasonably believes that the patient or subject will not provide the information to the spouse or sexual partner and that the disclosure is necessary to protect the health of the spouse or sexual partner.

(B) A disclosure under such paragraph may be made by a physician or counselor other than the physician or counselor referred to in subparagraph (A) if such physician or counselor is unavailable by reason of absence or termination of employment to make the disclosure.

(g) Any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined, in the case of a first offense, up to the maximum amount provided under section 7301(f) of this title for a fist offense under that section and, in the case of a subsequent offense, up to the maximum amount provided under section 7301(f) of this title for a subsequent offense under that section.

38 CFR § 1.525

Inspection of Records by or Disclosure of Information to Recognized Representative of Organizations and Recognized Attorneys (a) (1) The accredited representatives of recognized organizations (§ 14.627 of this chapter) holding appropriate power of attorney and recognized attorneys (§ 14.629(b) of this chapter) with the written authorization of the claimant may, subject to the restrictions imposed by paragraph (a)(2) of this section, inspect the claims, insurance and allied

folders of any claimant upon the condition that only such information contained therein as may be properly disclosed under §§ 1.500 through 1.526 will be disclosed by him or her to the claimant or, if the claimant is incompetent, to his or her legally constituted fiduciary. Under the same restrictions, it is permissible to release information from and permit inspection of loan guaranty folders in which a request for a waiver of the debt of a veteran or his or her spouse has been received, or where there has been a denial of basic eligibility for loan guaranty benefits. All other information in the files shall be treated as confidential and will be used only in determining the status of the cases inspected or in connection with the presentation to officials of the Department of Veterans Affairs of the claim of the claimant. The heads of field facilities and the directors of the services concerned in Central Office will each designate a responsible officer to whom requests for all files must be made, except that managers of centers with insurance activities will designate two responsible officials, recommended by the division chiefs concerned, one responsible for claims and allied folders and the other for insurance files. The term claimant as used in this paragraph includes:

(2) In the case of a living veteran, a representative acting under a power of attorney from any person not acting on behalf of the veteran will not be permitted to review the records of the veteran or be furnished any information there from to which the person is not entitled, i.e., information not relating to such person alone. Powers of attorney submitted by the other person will be considered “limited” and will be so noted when associated with the veterans records. The provisions of this subparagraph are also applicable to recognized attorneys and the requisite declarations filed by them.

(3) When power of attorney does not obtain, the accredited representative will explain to the designated officer of the Department of Veterans Affairs the reason for requesting information from the file, and the information will be made available only when in the opinion of the designated officer it is justified; no circumstances will such representatives be allowed to inspect the file; in such cases a contact report will be prepared and attached to the case, outlining the reasons which justify the verbal or written release of the information to the Accredited Representative.

(4) In any case where there is an unrevoked power of attorney or declaration of representation, no persons or organizations other than the one named in such document shall be afforded information from the file except under the conditions set forth in § 14.629(b)(2) of this chapter. When any claimant has filed notice with the Department of Veterans Affairs that he/she does not want his/her file inspected, such file will not be made available for inspection.

(b) (1) Inspection of folders by accredited representatives or recognized attorneys holding a written authorization where such cases are being processed shall be in space assigned for such inspection. Otherwise, station heads may permit inspection of folders at the desks of the accredited representatives in the office(s) which they regularly occupy.

(2) An insured or after maturity of the insurance by death of the insured, the beneficiary may authorize the release to a third person of such insurance information as the insured or the beneficiary would be entitled to receive, provided there is submitted to

the Department of Veterans Affairs, a specific authorization in writing for this purpose.

(3) Unless otherwise authorized by the insured or the beneficiary, as the case may be, such authorized representative, recognized attorney or accredited representative shall not release information as to the designated beneficiary to anyone other than the insured or to the beneficiary after death of the insured. Otherwise, information in the insurance file shall be subject to the provisions of §§ 1.500 through 1.526.

(4) Clinical records and medical files, including files for outpatient treatment, may be inspected by accredited representatives or recognized attorneys holding a written authorization only to the extent such records or parts thereof are incorporated in the claims folder, or are made available to Department of Veterans Affairs personnel in the adjudication of the claim. Records or data in clinical or medical files which are not incorporated in the claims folder or which are not made available to Department of Veterans Affairs’ personnel for adjudication purposes will not be inspected by anyone other than those employees of the Department of Veterans Affairs whose duties require same for the purpose of clinical diagnosis or medical treatment.

(5) Under no circumstances shall any paper be removed from a file, except by a Department of Veterans Affairs employee, for purpose of having an authorized copy made. Copying of material in a file shall not be permitted except in connection with the performance of authorized functions under the power of attorney or requisite declaration of a recognized attorney.

(6) In any case involving litigation against the Government, whether contemplated or initiated, inspection, subject to the foregoing, shall be within the discretion of the General Counsel or Regional Counsel, except that in insurance suits under 38 U.S.C. 1975, 1984, inspection shall be within the discretion of the official having jurisdiction of the claim. Files in such cases may be released to the Department of Justice, but close liaison will be maintained to insure their return intact upon termination of the litigation.

(c) Facility heads and the directors of the services concerned in central office will be responsible for the administrative compliance with and accomplishment of the foregoing within their jurisdiction, and any violations of the prescribed conditions for inspection of files or release of information there from will be brought to the immediate attention of the Secretary.

(d) Any person holding power of attorney, a recognized attorney who has filed the requisite declaration or the accredited representative of a recognized organization holding power of attorney, shall be supplied with a copy of each notice to the claimant respecting the adjudication of the claim. If a claimant dies before action on the claim is completed, the person or organization holding power of attorney or the attorney who has filed the requisite declaration may continue to act until the action is completed except where the power of attorney or requisite declaration was filed on behalf of a dependent.

(e) When, in developing a claim, the accredited representative of a recognized organization finds it necessary to call upon a local representative to assemble information or evidence, he or she may

make such disclosures to the local representative as the circumstances of the case may warrant, provided the power of attorney to the recognized organization contains an authorization permitting such disclosure.

FORM TO REQUEST MILITARY RECORDS

General Information. The Standard Form 180, Request Pertaining to Military Records (SF180) is used to request information from military records. Certain identifying information is necessary to determine the location of an individual's record of military service. Please try to answer each item on the SF 180. If you do not have and cannot obtain the information for an item, show "NA," meaning the information is "not available." Include as much of the requested information as you can.

To determine where to mail this request see Page 2 of the SF180 for record locations and facility addresses. Online requests may be submitted to the National Personnel Records Center (NPRC) by a veteran or deceased veteran’s next of kin using eVetRecs at http://www.archives.gov/veterans/military- service-records/

The current edition of the SF 180 does state that previous versions should not be used. For the most current version, which can be completed online, please go to:

http://www.archives.gov/veterans/military-service-records/standard-form-180.html

Chapter 3

DUTY TO ASSIST & CLAIM DEVELOPMENT

References:

Title 38, U.S. Code, Section 5103. 38 Code of Federal Regulations Part 3, §§ 3.1– 3.160. (esp. §3.159) M21-1MR, Part I, Chapter 1. http://www1.va.gov/OPA/publications/benefits_book.asp http://benefits.va.gov/FDC/index.asp

Summary:

1. Background:

This topic represents one of the most critical, and most challenging, areas for service officers in assisting claimants. Proper assistance in this area can make the handling of a given claim more efficient, and faster, resulting in the veteran getting either payment or a decision rather than undergoing additional development and delay.

It will be very helpful to read the material in Appendix N, page 232 concerning the Claims Transformation program and the Fully Developed Claim program along with the material in this Chapter. Although VA has the primary legal obligation under “Duty to Assist”, working with the Regional Office in this process increases efficiency, improves timeliness, and—most importantly— provides better service to our claimants.

Over the years VA’s responsibility to assist its claimants has undergone many changes. Initially, there were no statutory definitions or instructions regarding duty to assist, but by tradition VA would assist any applicant who had status as a proper claimant to establish all aspects of his or her claim, in preparation for a decision on the merits of the claim. The only requirement was that there had to be “a reasonable probability of a valid claim.” However, there were no definitions nor clear instructions as to what this phrase meant, or what the limits of assistance were. In general, VA would assist the veteran at every step of the claims procedure, although the degree of assistance provided tended to vary widely from time to time and place to place.

The situation changed radically with the passage of the Veterans’ Judicial Review Act in 1988. In addition to establishing a Court of Veterans’ Appeals (now the U.S. Court of Appeals for Veterans’ Claims), the law added a new section 5107 to 38 US Code, which read in pertinent part: “…a person who submits a claim for benefits…shall have the burden of submitting evidence sufficient to justify a belief…that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim.”

Subsequently, a considerable body of case law grew up around the questions of the definition of a “well- grounded claim,” and whether VA could assist a claimant to develop evidence regarding the claim before the claim had been “well-grounded.” The court consistently ruled that VA could not assist claimants unless and until the claim was determined to be well-grounded. In Morton v. West, 12 Vet.App. 477 (1999), the court reiterated its position that VA had no authority to assist a claimant absent a well-grounded claim, and threatened VA with sanctions if the agency did not cease providing any assistance beyond verification of service and requesting service medical records before the claim was determined to be well-grounded.

The stated rationale for this position was that the well-grounded requirement served as a “gatekeeper,” weeding out those claims that were so lacking in merit that there was no possibility they could be allowed, and thus conserving scarce agency resources. In reality, however, the opposite result actually obtained—determining “well-groundedness” was in effect a secondary adjudication of the claim, separate and distinct from a decision on its merits. A finding that a claim was not well-grounded could be appealed, thus expending additional agency resources and causing a decision on the substantive issues in the claim to be even further delayed.

In response to the Morton decision, in November 2000 Congress passed the Veterans Claims Assistance Act of 2000 (VCAA). This Act repealed the “well-grounded” requirement for claims, restated VA’s duty to assist the claimant to develop all evidence pertinent to the claim, and required VA to inform the claimant at each step of the claims process as to what VA will do and what the claimant must do to develop evidence sufficient to determine the merits of the claim.

2. Status of Claimant:

The VA claims process is a multi-step operation. Before the merits of a claim can be decided, several initial points must first be determined: (1) Does the claimant have status? (2) What kind of claim is being presented? and finally, (3) What are the issues being claimed?

An applicant is a person who applies for (a benefit); a claimant is a person who claims (a benefit). The difference between them is one of status. Persons with status for VA claims purposes are:

• Veterans; • Spouses (or surviving spouses); • Children; • Parents.

An applicant must attain status as one or another of the above classes before he or she is a claimant. The definitions of a veteran, spouse, child, and parent are given in Chapter 2 and are set out in 38 CFR §3.1 and elsewhere. Requirements for status as a veteran are listed in 38 CFR §§ 3.6 and 3.7; the evidence required for recognition as a spouse, child, or parent is listed in 38 CFR §§ 3.50–3.60 and §§ 3.204– §3.212.

In addition to the above, a recognized fiduciary for a minor, incompetent, or disabled claimant may present appropriate court or other documents to show parental or fiduciary status. A recognized fiduciary may submit any claim or statement, of any nature, on a claimant’s behalf, just as if it were submitted by the claimant. [38 CFR, Part 13]

A claimant’s authorized representative may present any standard power of attorney documentation (including VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative) or, if an actual attorney or a claims agent, either a VA Form 22A, Appointment of Attorney or Agent as Claimant’s Representative, or a statement of representation on the attorney’s office letterhead stationery.

Recurring reference is made to VA Form 21-22 in this desk book. It should be noted, and your clients need to know, that the execution by a claimant of a power of attorney (POA) under State law has no effect for the purposes of prosecuting a VA claim. In order to be recognized by Department of Veteran Affairs (VA), a claimant’s representative must be appointed according to the procedures in the VA manual. Page 2 of the form contains a list of recognized service organizations.

There are limitations on the actions an authorized representative may take on a claimant’s behalf—in general, a representative may not submit any claim or statement on the claimant’s behalf if the claimant’s signature is required to certify the information therein. Examples of this would include any original application for disability or death benefits, education benefits, health care benefits, etc., as well as eligibility verification reports (EVRs) for pension or parents’ DIC, declarations of marital status (VA Form 21-686c), or financial status statements (VA Form 20-5655). [38 CFR §§14.626–14.634]

An applicant must establish status as a claimant by a fair preponderance of evidence—this means that the evidence for status is 50% + 1 in the applicant’s favor. At this point in the process there is NO resolution of reasonable doubt—the evidence either establishes status or it does not. Further, unless and until status is established there is NO duty to assist the applicant (to establish status). 38 CFR §3.102[benefit of the doubt] does not apply until an applicant has established status as a claimant. This is a difficult and sometimes critical issue, and there is some confusion in this area. As mentioned earlier, on February 1, 2012, the CAVC in Burden vs. Shinseki provided some interesting discussion on this subject. For some additional basic information on evidence, please see Appendix G, page 216.

In March 2016 a change was published at M21-1 III v. 1.A. The relevant part of this change:

In most cases, when the evidence for and against a claimant’s position is in equipoise, VA resolves reasonable doubt as to the claimant’s entitlement in his/her favor….There are issues, however, that require “a preponderance of the evidence” to decide in the claimant’s favor. These include questions of status, such as a person’s relationship to a Veteran.

Note: Previous guidance indicated reasonable doubt does not apply in cases involving whether a claimant’s service is qualifying for VA purposes. In any case involving the character of service of a claimant, resolve all reasonable doubt in favor of the claimant.

3. Types of Claims:

Once the question of status is resolved, the next step is to determine the type and nature of the claim. There are two general classes of claims: those where the veteran is alive, and those where the veteran is deceased. Within these two classes, there are claims for service-connected benefits and claims for nonservice-connected pension. Beyond that, claims are identified according to their type, as set out in 38 CFR § 3160 and elsewhere. These types of claims are:

(a) Complete claim. A submission of an application form prescribed by the Secretary, whether paper or electronic, that meets the following requirements:(1) A complete claim must provide the name of the claimant; the relationship to the veteran, if applicable; and sufficient service information for VA to verify the claimed service, if applicable.(2) A complete claim must be signed by the claimant or a person legally authorized to sign for the claimant.(3) A complete claim must identify the benefit sought.(4) A description of any symptom(s) or medical condition(s) on which the benefit is based must be provided to the extent the form prescribed by the Secretary so requires; and(5) For nonservice-connected disability or death pension and parents' dependency and indemnity compensation claims, a statement of income must be provided to the extent the form prescribed by the Secretary so requires. b. Original claim—the very first claim filed for a class of benefit (i.e., disability benefits or death benefits). An original claim is a formal claim, and must be filed on the form prescribed by the Secretary (VA Form 21-526 for disability claims; VA Form 21-534 for death claims from a surviving spouse and/or children; VA Form 21-535 for death claims from the veteran’s parents). [38 CFR §§ 3.151(a), 3.152(a)]

c. Pending claim—a claim which is awaiting a decision, or, a claim on which a decision has been made but the decision is not yet final, either because the time limit for an appeal has not yet elapsed, or because an appeal was taken but the appellate authority has not yet rendered its final decision.

d. Finally adjudicated claim—a claim on which a decision has been made, and either the claimant has allowed the specified period to pass without appeal, or, if an appeal was taken, the appellate authority has rendered a final decision. It does not matter if the claim was allowed or denied, although the term is most often used in the context of a denied claim.

e. Reopened claim—a claim where the issue being claimed has been previously denied and such denial has the status of a finally adjudicated claim. To successfully reopen such a claim, the claimant must submit new and material evidence, and such evidence must raise a reasonable probability of a different outcome. [38 CFR § 3.156(a)] The claim may be either formal or informal. [See appendix G, page 216 relevant to new and material evidence][As of March 24, 2015, a reopened claim must be submitted on a VAForm 21-526EZ]

f. New claim—a non-original disability claim for a condition not previously claimed as service- connected. The claim may be either formal or informal.

g. Claim for increase—a disability claim for a condition previously established as service-connected, which the veteran requests to have re-evaluated. Also, a disability, death or other claim where the beneficiary is claiming an additional benefit, such as special monthly pension for aid and attendance, or additional allowance because of a dependent.

h. Special claim: a claim which does not fall under any of the basic categories listed above. The most common of these is a claim for revision of a final decision because of allegation of clear and unmistakable error of fact or law (CUE). [38 CFR § 3.105(a); §§ 20.1400–1411]

Another type of special claim is a simultaneously contested claim. This is a claim where there are two (or more) claimants for the same benefit, and if one person’s claim is allowed the other person’s claim must necessarily be denied or benefits reduced. The most common examples are: (1) Two claimants, each claiming to be the veteran’s legal surviving spouse; and (2) A claim is made for an

apportioned share of the veteran’s (or other beneficiary’s) benefit payments, but whatever the decision, the unsuccessful party contests it. The claim may be original or reopened, formal or informal. See Module 17 for additional information as to appeal periods and time limits for contested claims. [38 CFR §§ 19.100–19.102; 20.500–20.504]

Informal Claim. As part of the VA’s procedural evolution to reduce the backlog, the recognition of and processing of “Informal Claims” was changed as of March 2015. Informal claims filed after that date are not recognized as claims for VA benefits. This is a change in a decades long procedure, and service officers, especially service officers who are trained and experienced in informal claims submission, need to be very aware of this change. For historical purposes, the following explanation is included; don’t forget that some of the informal claims filed prior to the cut off date are still in process:

Informal claim—any written communication or any action indicating an intent to file a claim for benefits. The communication or action may be from or by the claimant, an authorized representative, a member of Congress, or a person acting as next friend, and must reasonably identify the benefit being sought. Once an informal claim has been received or identified, VA must then furnish the claimant with a formal application, if one has not been previously filed; the claimant has one year from that date to return the application. [38 CFR § 3.155] Under certain circumstances, examination or treatment at a VA or uniformed services medical facility, or at a civilian facility under VA or TRICARE contract, may also constitute an informal claim. [38 CFR § 3.157(b)(1)](also see Appendix Q on page238 for more information on informal claims]

4. Issue Identification:

Although the terms are often used interchangeably, claims and issues are separate and distinct entities. It may help to remember that claims are comprised of issues—for example, an original claim may be for service connection for multiple conditions; each condition being claimed is a separate issue. The evaluation to be assigned for each service-connected condition established is another issue. The veteran might also be claiming additional compensation for dependents—another issue. In addition, the veteran may have also filed an application for Vocational Rehabilitation—yet another issue; and so on, and so on.

In addition to adjudicating all issues claimed, VA is also required to adjudicate any issues noted in the record which would be to the claimant’s advantage, even though not specifically claimed[an example of this would be a chronic condition, identified in review of service medical records, that the veteran didn’t consider a disability or otherwise neglected to include in his claim.]. Further, VA is required to adjudicate, or to at least consider, any and all issues raised, inferred, or implied by a liberal reading of the record or by the outcome of those issues which were specifically claimed. An example of this would be in a claim for service connection for Type II diabetes; VA is required to consider service connection for any conditions shown by medical records to be possibly secondary to that diabetes.

Reference: For more information on inferred issues, see M21-1MR, Part III, Subpart iv, Chapter 6, Section B

The claimant is not required to state the basis for claiming any particular issue—it is VA’s responsibility to determine whether eligibility and entitlement to benefits for that issue may be established on any basis, and if so, to identify the basis. Although it is the VA’s responsibility, the service officer can be of

39 material assistance in determining that the claim is as clear as practical before it is submitted, and that it accurately reflects specifically what the veteran is claiming. Yes, this is easier said than done.

For the VA’s most recent (April 2014)internal instructions on screening and handling original claims go to M21-1MR, Part III, Subpart ii, Chapter 2, Section B and C.

5. Duty to Assist and Inform:

The requirements of the VCAA are set out in 38 USC §5103, and are expanded upon in 38 CFR §3.159. In general, VA has a duty to assist a claimant in obtaining all relevant records, to provide medical examinations, and where appropriate for compensation claims, to obtain medical opinions.

Applications are placed into three categories:

• A complete application is one that is signed by the claimant, contains all required information to identify the claimant, to identify the veteran and verify his/her service data, to identify the claimant’s relationship to the veteran (if applicable) and identify the nature and basis for the claim, and is accompanied by sufficient medical and other evidence to make a determination on the merits of the claim, although some further development for substantiation may still be required.

• A substantially complete application is one that contains at least the claimant’s name, his or her relationship to the veteran (if applicable); sufficient service data to identify the veteran and verify the claimed service; the benefit being claimed and any medical condition(s) on which it is based; and is signed by the claimant. If the claim is for nonservice-connected pension or for parents’ DIC, there must also be a statement of the claimant’s family income.

• An incomplete application is one that is lacking in any of the parts for a substantially complete application.

If the application is “incomplete,” VA is required to inform the claimant what evidence or information is needed to make the claim complete. In this case, there is no duty to assist until the claimant submits the required evidence or information. An incomplete application is considered to be an informal claim, and the claimant has one year from the date of the VA notice to make the claim complete.

If the application is “complete” or “substantially complete,” the duty to assist and inform begins—VA is required to inform the claimant as to any additional information and/or medical or lay evidence that may be necessary to substantiate the claim. VA is further required to inform the claimant which information and evidence VA will obtain, and which information and evidence the claimant is responsible for obtaining.

Much of the information and advice given in this manual is intended to assist service officers in presenting complete or substantially complete claims to VA. For specific information related to “Fully Developed Claims”, please see Chapter 4, subchapter 4.4, page 65 below.

Note: A claim for an increased evaluation of a service-connected (SC) disability based on a statement from the claimant that the disability has worsened is considered to be substantially complete. If medical evidence is not identified or received with the claim an examination may be scheduled immediately provided there are no new or reopened issues. The veteran may still receive a letter notifying him/her that the evidence must show that the disability has worsened and that VA may order an examination.

If additional information and/or evidence is requested from the claimant, the claimant must respond within thirty (30) days from the date of VA’s request or VA may adjudicate the claim based on the information and evidence already of record. In such cases, however, if the claimant then provides the requested information and/or evidence at any time within one year from the date of VA’s request, VA will readjudicate the claim as though the previous determination had not been made, unless the claimant has already initiated an appeal of the decision.

Finally, of course, VA is required to inform the claimant of the outcome of the claim (i.e., VA’s decision to allow or deny the claim), and all associated appeal rights.

6. Extent of duty to assist:

a. VA will in all cases obtain service medical records, unless the claim is only for nonservice- connected pension. b. If the claimant provides sufficient information as to their whereabouts, VA will obtain any other records held by the government pertaining to the veteran’s military service. c. If the claimant provides sufficient information to locate them, VA will obtain the veteran’s VA medical records. d. If the claimant sufficiently identifies them, VA will obtain any other relevant records held by any Federal department or agency. e. If the claimant sufficiently identifies them and provides a valid release satisfactory to the custodian of such records, VA will request records on the claimant’s behalf from any private or State or local government source. f. VA must make every possible effort to obtain relevant records held by any Federal department or agency, unless and until it is reasonably certain that the records do not exist or that continuing efforts to obtain them would be futile. This will generally require a statement from the custodian that the records no longer exist, or that they have been transferred elsewhere. g. VA must make reasonable efforts to obtain any other (non-Federal) records identified by the claimant as relevant to the claim. This will generally mean one request plus one follow-up request. If, after making reasonable efforts, VA is unable to obtain all of the relevant records, VA must notify the claimant that it has not been able to obtain the specific records sought, and describe any further actions to be taken. h. When there is a reasonable possibility that such medical information is necessary to properly decide the claim, VA must provide the claimant with a VA medical examination and/or obtain a medical opinion. However, if the claim is to reopen a previously finally adjudicated issue, a determination as to whether new and material evidence has been submitted must first be made.

7. Limits on duty to assist:

a. There is no duty to assist an applicant attain status as a proper VA claimant.

b. There is no duty to assist on an incomplete or an informal claim. However, there is a duty to inform the claimant what is needed to make the claim complete, or to provide the claimant with the prescribed form(s) for submitting a formal application.

c. VA may not obtain any records on the claimant’s behalf if a fee is charged for providing such records.

d. There is no duty to assist if the claimant fails to cooperate by not providing sufficient information to identify and locate relevant records, or fails to supply acceptable authorizations for release of records so that VA can request them.

e. After making reasonable efforts, if for any reason VA is unable to obtain non-Federal records identified by the claimant, it is the claimant’s ultimate responsibility to obtain the records if he or she wishes to have them considered in the decision.

f. VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim (e.g., the claim is inherently incredible, or there is no legal eligibility for the benefit being sought).

g. Since it is based on the record that existed at the time of the disputed decision, there is no duty to assist on a claim of clear and unmistakable error (CUE). However, if the error was a denial of service connection there may be a duty to assist in obtaining evidence to support current and retroactive evaluations. Duty to assist ends when all of the identified evidence has been obtained, or when sufficient evidence has been obtained to support granting the benefit(s) being sought.

In March 2016 the United States Court of Appeals for the Federal Circuit issued a decision in the case of MAURICE C. SULLIVAN,vs.ROBERT A. MCDONALD that is instructive regarding the extent of VA’s duty to assist obligation.

SPECIAL SITUATIONS

There are some unusual situations that require “special handling”. Examples of these situations include cases where service records were destroyed in the 1973 fire at the Records Processing Center in St. Louis, and cases where the usual methods of verification of service, or Vietnam service, are fruitless. Being aware of and understanding the VA’s instructions in such cases will enable service officers to assist in the process and reduce delays. For the VA’s internal instructions go to: http://www.benefits.va.gov/WARMS/ and in the search block put: M21-1MR, Part III, Subpart iii, Chapter 2, Section E

That manual section includes the information that the Regional Office may need to facilitate a search of alternative records by the National Personnel Records Center (NPRC) and/or other federal records repositories. The NPRC must rely on secondary evidence in fire-related cases. In these cases, the information provided by the regional office (RO) is vital to record reconstruction.

VA personnel are directed to request the service records and simultaneously notify the claimant of the need to complete NA Form 13055, Request for Information Needed to Reconstruct Medical Data, if the service dates indicate a veteran’s records are potentially fire-related.

In order to facilitate searches of auxiliary records, the veteran or claimant normally will need to complete NA Form 13055, so the regional office has sufficient information to submit a request.

FORM TO REQUEST MILITARY RECORDS

The current edition of the SF 180 does state that previous versions should not be used. For the most current version, which can be completed online, please go to: http://www.archives.gov/veterans/military-service-records/standard-form-180.html

CHAPTER 4

SERVICE CONNECTED DISABILITY COMPENSATION

EVALUATIONS and the RATING SCHEDULE

Subchapters:

Overview: Principles of Service Connection/Direct/Aggravated/ Presumptive/Secondary/

Subchapters

4.1 Evaluations, the Rating Schedule, Rating considerations, Unemployability p52

4.2 Recoupment of Benefits/Retired Pay Offsets p58

4.3 Application Process p62

4.4 The Fully Developed Claim p65

4.5 Effective Dates………………………………………………………………….p69

Overview:

Compensation for disability or death incurred in, or due to, service is probably the most important benefit administered by the VA, and is one of the earliest benefits provided by the Government (see the history of benefits in Chapter 1). Compensation is payable for disability that is “service-connected”. In essence, for the VA to grant service connection for a disability, three things are necessary:

1)Something in service; depending on the nature of the disability, this could be an injury, occurrence, circumstance, or in some cases simply being in service. 2)A diagnosis, by a medical professional, of a current chronic condition. 3)A link, established by evidence or regulation, between #1 and #2.

References: Title 38, U.S. Code, Chapter 11 38 Code of Federal Regulations Part 3, §§ 3.301–3.385; § 3.800; §§ 3.951-3.957; Part 4[the Rating Schedule]. Adjudication Manual M21-1MR (Manual Rewrite), Subpart IV; Part 4, Subparts II and III. VA Pamphlet, 80-05-1, Federal Benefits for Veterans and Dependents. http://www.vba.va.gov/bln/21/compensation/ http://www.benefits.va.gov/COMPENSATION/types-disability.asp

Summary:

1. Service Connection:

Service connection is the relationship of a particular disabling condition to the veteran’s service. This is accomplished by showing that the condition began during service (incurrence), or that a pre-existing condition was made permanently worse than it would have otherwise been (aggravation), or by the application of certain statutory presumptions.

Formal application for service-connected disability compensation is made by submitting a completed VA Form 21-526, Veteran’s Application for Compensation or Pension, together with appropriate medical and other supporting evidence. Under certain circumstances, an application for service- connected compensation may also be an application for nonservice-connected disability pension, if the veteran served during a wartime period and completes the portions of the application pertaining to total disability and to family income and net worth.

There are two additional applications for compensation that Service Officers need to be familiar with: the Pre Discharge Claim, filed on VAF 21-526c, and the Fully Developed Claim, filed on VAF 21- 526EZ. The specifics regarding these two applications are covered later in this chapter.

Advocacy Note: There has been confusion as to the meaning of the phrase “diagnosis…of a current chronic condition”. There are conditions that are chronic by definition, such as residuals of amputations, or other injuries, or certain diseases that are considered to have permanent residuals. In these cases, the actual diagnosis can be at some time in the past, but it can still be evidence of a “current chronic condition”.

Service connection may only be established for a chronic or permanent disability. This can be established in several ways:

(1) The conditions listed in 38 CFR § 3.309(a) are chronic by definition, as a matter of law—if one of these conditions is properly diagnosed in service, then it does not matter how long after service the veteran first claims service connection or how long after service the condition again becomes manifest; it is considered to be the same condition as was shown in service, unless the current condition is clearly shown to be of intercurrent origin. [38 CFR § 3.303(b)]

(2) Some disabilities are by their very nature permanent, such as amputations or scars from burns, combat wounds or surgical procedures.

(3) Continuity and chronicity may be factually established, by repeated episodes or recurrences of the condition during and/or after service. The longer the interval between service and the time the veteran claims service connection, the greater the evidence of continuity and chronicity required (but see the advocacy Note above.)

(4) In all other cases, there must be medical evidence or a professional opinion linking or relating the current condition(s) to the disease, injury, or incident in service (the “nexus”).

In essence, there are four basic paths to service connection: Direct, Aggravation, Presumption, and Secondary. We will discuss each of these.

A. Direct:

An incurred disability may have been directly caused by service (e.g., a combat wound), or it may be the remote result of some incident of service (e.g., cancer due to asbestos exposure), or it may have simply begun coincident with service (e.g., diabetes). It is not required that the condition be shown in the service records, only that the evidence taken as a whole shows that the condition must have begun during service, or was the result of service or some incident thereof. (see 38 C.F.R. §3.301, §3.303, and §3.304)

B. Aggravation:

A pre-existing disability which becomes permanently worse during service will be held to have been aggravated by service unless there is a specific finding that the increased severity is the result of the condition’s natural progress. The veteran is presumed to be in sound condition at the time of entry into service except for conditions noted on the entrance examination. This presumption may be rebutted by clear and convincing evidence that a condition existed before the veteran entered service. (see specifically 38 C.F.R. §3.306 and §3.322)

For conditions which first appear after entering service, the veteran is presumed to have been in sound condition at the time of entry into service except for those conditions actually noted on the entrance examination (this does not include conditions recorded by history only). This presumption of soundness may be rebutted by clear and convincing evidence that the particular condition existed before the veteran entered service and was not aggravated by service.

C. Presumptive Service Connection:

Certain chronic and tropical diseases will be presumed to have begun during service if they become manifest to a compensable degree within a specified time (generally, one year) after service, even though there is no evidence of the disease during service. Chronic diseases shown before service, but not during service, may be presumed to have been aggravated by service if they then become manifest to a compensable degree within the specified time periods. In addition, specified diseases are presumed to be the result of certain incidents of service (prisoner of war, participation in “radiation-risk” activities, herbicide exposure) if they become manifest to a compensable degree at any time after service (lifetime presumption). Other presumptive periods are specified for undiagnosed illnesses associated with service in the Persian Gulf area (until September 30, 2011), and for certain diseases associated with herbicide exposure (one year after leaving Vietnam for chloracne, Porphyria cutanea tarda, and peripheral neuropathy). [38 CFR § 3.307(a)] These presumptions are intended to be liberalizing features, to allow service connection when the evidence would not otherwise support it.

The diseases to which presumptions may be applied are listed in 38 CFR § 3.309 (§ 3.317 for Gulf War undiagnosed illnesses). The various time limits for manifestation of presumptive diseases are listed under 38 CFR § 3.307(a). ONLY THE DISEASES SPECIFICALLY LISTED, AND NO OTHERS, are subject to a presumption of service connection. These presumptions may be rebutted by affirmative evidence showing that the disease being claimed was either due to intercurrent causes or could not have had its inception within the specified time frame(s), or, if the disease pre-existed service, that any increase in its severity was due to its natural progress.

What is “Presumptive” Service Connection?

VA presumes that specific disabilities diagnosed in certain veterans were caused by their military service. VA does this because of the unique circumstances of their military service. If one of these conditions is diagnosed in a veteran in one of these groups, VA presumes that the circumstances of his/her service caused the condition, and disability compensation can be awarded.

What Conditions are “Presumed” to be Caused by Military Service? Veterans in the groups identified below: Entitlement to disability compensation may be presumed under the circumstances described and for the conditions listed. Veterans within one year of release from active duty: Individuals diagnosed with chronic diseases (such as arthritis, diabetes, or hypertension) are encouraged to apply for disability compensation. Veterans deployed to the Southwest Asia Theater of Operations from August 2, 1990, to July 31, 1991: Individuals diagnosed with amyotrophic lateral sclerosis (ALS)/Lou Gehrig's disease are encouraged to apply for disability compensation. Former Vietnam Veterans Atomic Veterans Gulf War Veterans Prisoners of War (Exposed to (Exposed to Ionizing (Undiagnosed Illness) [see also Appendix H, p 218}] Herbicides) Radiation) [see additional information [see also Appendix L p 227] below in Appendix V p 251]] (1) Imprisoned for any Served in the Republic of Participated in atmospheric Served in the Southwest Length of time, and Vietnam between 1/9/62 nuclear testing; occupied or Asia Theater of Disability at least 10 and 5/7/75: was a POW in Hiroshima or Operations during the Gulf Percent disabling: • Chloracne or other Nagasaki; service before War with condition at least • Psychosis acneform disease similar 2/1/92 at a diffusion plant in 10 percent disabling by • Any of the anxiety states to Chloracne* Paducah, KY, Portsmouth, 12/31/11. Included are • dysthymic disorder • Porphyria cutanea tarda* OH, or Oak Ridge, TN or medically unexplained • Organic residuals of frostbite • Soft-tissue sarcoma service before 1/1/74 at chronic multi-symptom • Post-traumatic osteoarthritis (other than Amchitka Island, AK: illnesses defined by a cluster • Heart disease or hypertensive osteosarcoma, • All forms of leukemia of signs or symptoms that vascular disease and their kaposi’s sarcoma or (except for chronic have existed for six months complications mesothelioma) lymphocytic leukemia) or more, such as: • • Stroke and it residuals • Hodgkin’s disease • Cancer of the thyroid, Chronic fatigue • Multiple myeloma breast, pharynx, syndrome (2) Imprisoned for at • Respiratory cancers esophagus, stomach, • Fibromyalgia Lease 30 days, and (lung, bronchus, larynx, small intestine, • Irritable bowel Disability at lease 10 trachea) pancreas, bile ducts, syndrome Percent disabling: • Non-Hodgkin’s gall bladder, salivary • Any diagnosed or • Avitaminosis lymphoma gland, urinary tract undiagnosed illness that (renal pelves, ureter, • Beriberi • Prostate cancer the Secretary of Veteran urinary bladder and • Chronic dysentery • Acute and subacute Affairs determines urethra), brain, bone, warrants a presumption • Helminthiasis peripheral neuropathy* lung, colon, ovary of service connection • Malnutrition (including optic • Type 2 diabetes • Bronchiole-alveolar atrophy) • Chronic lymphocytic carcinoma Signs or symptoms of an • Pellagra leukemia • Multiple myeloma undiagnosed illness include: • And other nutritional deficiency • Parkinson’s disease • Lymphomas (other than Fatigue, skin symptoms, • • B-cell leukemia Irritable bowel syndrome Hodgkin’s disease) headaches, muscle pain, joint • • Ischemic Heart Disease Peptic ulcer disease • Primary liver cancer pain, neurological symptoms,

• Peripheral neuropathy (except if cirrhosis or respiratory symptoms, *Must become manifest to • Cirrhosis of the liver hepatitis B is indicated) respiratory symptoms, sleep A degree of 10 percent or disturbance, GI symptoms, More within a year after the cardiovascular symptoms, last date on which the veteran weight loss, menstrual was exposed to an disorders Herbicide agent during Active military, naval, or air Service.

No presumptions may be invoked on the basis of the degree of advancement of the disease when first definitely found (after the presumptive period) to establish that the disease was present to the required extent during the applicable presumptive period. [38 CFR § 3.307(c)] This does not mean that the disease must be diagnosed during the presumptive period, only that there is acceptable evidence of characteristic manifestations of the disease to the required degree, followed without an unreasonable lapse of time by a definitive diagnosis. (Note, however, that the degree of advancement of a condition at the time it is first found may be a basis for finding that the condition was present but unrecognized while the veteran was still on active duty.)

For VA benefit purposes, Gulf War service is active military duty in any of the following areas in the Southwest Asia theater of military operations at any time during the first Gulf War starting August 2, 1990 through the Iraq War. This includes Veterans who served in Operation Iraqi Freedom (2003-2010) and Operation New Dawn (2010-2011).

. Iraq . Kuwait . Saudi Arabia . The neutral zone between Iraq and Saudi Arabia . Bahrain . Qatar . The United Arab Emirates . Oman . Gulf of Aden . Gulf of Oman . Waters of the Persian Gulf, the Arabian Sea, and the Red Sea . The airspace above these locations

VA offers eligible Veterans a free Gulf War Registry health exam to find possible long-term health problems related to Gulf War service. Research continues concerning the conditions afflicting veterans of service in the mid East during the period 1990-1991. In March 2012 the VA a recent study by the Gulf War Illness Task Force. That study is available at: http://www.va.gov/opa/publications/2011_GWVI-TF_Report.pdf

VA released the 2012-2013 Gulf War Veterans’ Illnesses Task Force report (932 KB, PDF) February 28, 2014. http://www.va.gov/opa/publications/2012_13_GWVI_TF_Annual_Report_Final.pdf

See more at: http://www.publichealth.va.gov/exposures/gulfwar/reports/gwvi- taskforce.asp#sthash.PEWcHSFl.dpuf

Additional information may be found at: http://www.publichealth.va.gov/exposures/gulfwar/ http://www.benefits.va.gov/persona/veteran-gulfwar.asp and the links contained therein. Also, as we are seeing increasing claims as veterans come home from the current conflict, we have added additional information regarding two conditions of increasing importance related to the Gulf War, Undiagnosed Illness and Traumatic Brain Injury (TBI)as Appendix Vpage 251 and W, page 254 below.

As of September 23, 2008, under 38 CFR §3.318, the development of amyotrophic lateral sclerosis(ALS)(Lou Gehrig’s Disease) manifested at any time after discharge or release from active military, naval, or air service will generally be sufficient to establish service connection for that disease. Service connection will not be established under this section a)if there is affirmative evidence that

48 amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service; b)if there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran’s own willful misconduct; or c)if the veteran did not have active, continuous service of 90 days or more. As of January 19 2012, raters were issued new, liberalized, instructions as to how ALS is to be evaluated.

Recent changes have taken place in how claims are handled for exposure to toxic chemicals in the water at Camp LeJeune, North Carolina. See Appendix K, page 224, for additional information.

D. Secondary:

Secondary service connection may be established for a new condition, which is directly and proximately caused by an established service connected condition. Under certain circumstances, secondary service connection may be established for a non-service connected condition that is aggravated beyond its normal progression by a service connected condition. (See 38 CFR §3.310)[Note: the first change to 38 C.F.R. 3.310 in many years was the addition of section (d)for conditions secondary to or otherwise related to Traumatic Brain Injury (TBI), in part because of the large number of such injuries received in the Gulf War].

There are special rules for establishing service connection for a hearing loss. Notwithstanding that no hearing loss is shown on entrance examination, and that while on active duty the veteran is diagnosed as having a hearing loss, service connection still may not be established for that hearing loss unless and until it meets the minimum levels set out in 38 CFR §3.385.

Service connection may not be established for transitory illnesses or superficial injuries, which resolve or heal with no ascertainable chronic or permanent residuals. [38 CFR § 3.303(b)] Similarly, service connection may not be established for congenital or developmental defects such as a personality disorder or simple refractive error of the eye. [38 CFR § 3.303(c), §4.9] Service connection by aggravation may not be established if the pre-existing condition does not become permanently worse during or after service, except for conditions which become symptomatic during or immediately following combat or internment as a prisoner of war. [38 CFR § 3.306(b)(2)] Remedial treatment in service for a pre-existing condition will not establish service connection unless the treatment is unsuccessful or otherwise aggravates the condition. [38 CFR § 3.306(b)(1)] Service connection may not be established for any disease or injury which is not incurred or aggravated in line of duty, or which is either the direct or the remote result of the veteran’s own willful misconduct. [38 CFR § 3.301(a)]

Service officers need to be aware that in certain situations secondary service connection may be in order for a condition for which direct service connection would be precluded by reason of misconduct. In other words, although service connection for alcoholism, for example, is prohibited as this condition is considered to be of misconduct origin, if alcoholism is established—by medical evidence—to be secondary to a service connected condition, such as a mental disorder, service connection may be possible.

There is no minimum length of service required to establish direct service connection by incurrence or aggravation. Presumptive service connection for a chronic or tropical disease requires that the veteran have at least 90 consecutive days of active service during a wartime period or after January 31, 1946. [38 CFR § 3.307(a)(1)] Presumptions based on status as a prisoner of war require that the veteran have been held captive for at least 30 days, except for mental or emotional disorders (not dementias), residuals of frostbite, post-traumatic arthritis, hypertensive cardiovascular disease and atherosclerotic cardiovascular disease and their complications, including stroke, congestive heart failure, etc., which

49 have no minimum length of captivity requirement. [38 CFR § 3.309(c)] Other presumptions require affirmative evidence that the veteran met (or meets) specific requirements such as to exposure, service at specified locales during specified times, etc.

When service connection has been established for a condition under any provision of applicable law, including the provisions described above, such service connection may not be removed (severed) unless evidence clearly shows that the establishment of service connection was clearly and unmistakably erroneous, and that the continuation of service connection cannot be maintained or supported under any reasonable theory (the burden of proof being on the government). [38 CFR § 3.105(d)] When service connection for any condition has been in effect for ten years, it becomes protected and may not be severed for any reason whatsoever, except upon a showing that it was based on fraud, or a showing that the veteran did not have the requisite service or character of discharge. [38 CFR § 3.957]

2. Compensation:

Disability compensation is the monthly monetary benefit payable for service connected disabilities. Compensation rates are not income-based, but are determined by the level of impairment in accordance with the Schedule for Rating Disabilities (38 CFR, Part 4). There are eleven possible levels of disability assignable for any condition, from 0% to 100%, in 10% increments. Each listed degree of severity is based on the average impairment of earning capacity for a person with that condition at that level of symptomatology. The veteran’s age is not considered in this determination. [there is more discussion of the rating schedule later starting on page 55] When a disability has been evaluated at or above any given level for twenty years or more, the evaluation is protected and may not be reduced below that level for any reason other than a showing that it was based upon fraud. [38 CFR § 3.951]

If there is more than one service connected condition, the percentages are not added together to determine the overall degree of disability. Rather, they are combined in accordance with the combined ratings table set out in 38 CFR §4.25. For an exercise in computing combined evaluations refer to Appendix D page 206. Working through these exercises may also prove helpful in explaining the concept to a client.

If a veteran has multiple compensable (10% or more) service connected conditions involving both arms or legs, or paired skeletal muscles, the combined evaluation for only those conditions is first found, before considering any other condition(s); 10% is then added (not combined) to that combined evaluation, and any other remaining service connected conditions are then combined with that total in the usual manner. This is the “bilateral factor.” The bilateral factor is not for application if the veteran is otherwise ratable at 100%; however, it may be used to reach an overall combined 100% rating. Also, if a veteran has multiple service connected conditions with one single condition rated 100% plus other, separate, compensable conditions involving paired extremities or paired skeletal muscles, the bilateral factor may be used to reach an independent combined rating of 60% for entitlement to special monthly compensation (see below).

If a veteran has two or more service-connected conditions which are each individually rated as non- disabling (0%) but which together clearly interfere with normal employability, compensation may be authorized at the 10% rate, but not in combination with any other rating. 38 CFR §3.324; http://www.law.cornell.edu/cfr/text/38/3.324 Advocacy Tip: this is one specific area where the veteran’s own lay statement, regarding how his non-compensable conditions interfere with his employment, may be very helpful.

If the combined evaluation is 30% or greater, additional rates of compensation may be payable for the veteran’s dependents. If the veteran’s spouse is disabled and in need of aid and attendance, additional amounts above the regular rates may be payable. Additional amounts may also be payable for the veteran’s child or children up to age 18, or beyond age 18 if the child is attending an approved school (up to age 23), or if the child became disabled and permanently incapable of self-support (helpless) before age 18. Additional amounts may also be payable if the veteran’s parents are dependent on the veteran for support.

If service connection is established by aggravation, the degree of severity of the condition at the time the veteran entered service must be determined, if possible. That evaluation is then deducted from the current evaluation, and the resulting difference is the degree of aggravation. If the pre-service degree of severity cannot be determined, no deduction is made. Also, if the condition is currently evaluated as 100% disabling no deduction is made. [38 CFR § 3.322, §4.22]

If a veteran is hospitalized for more than twenty-one days for observation or treatment of a service- connected condition, a temporary 100% rating may be assigned for that condition without regard to other provisions of the Schedule for Rating Disabilities, from the date of hospital admission to the last day of the month of hospital discharge. Under certain circumstances, a period of post-hospital convalescence of one, two, or three months may also be assigned. [38 CFR § 4.29, §4.30] [There is more information on Paragraphs 29 and 30 below starting on page 55].

If a veteran undergoes surgical treatment for a service-connected condition, whether as an inpatient or as an outpatient, or has therapeutic immobilization by cast of one or more joints for a service-connected condition and such treatment or immobilization requires a period of convalescence of one month or more, a temporary 100% rating may be assigned for that condition without regard to other provisions of the Schedule for Rating Disabilities, beginning the date of hospital admission or the date the outpatient treatment commenced and extending for a period of convalescence of one, two, or three months, as appropriate. In certain instances, the period of convalescence may be extended, up to a maximum length of twelve months. [38 CFR § 4.30]

Additional amounts of special monthly compensation are payable for the anatomical loss or the loss of use of one or both hands, feet, eyes, or other specified parts. (See special monthly compensation chart in Module 21 for detailed explanation) Special monthly compensation is also payable if the veteran has one single service connected condition rated 100% disabling plus other, separate, service connected condition(s) independently ratable at 60% or more in combination, or if the veteran is permanently housebound or in need of regular aid and attendance.

Veterans whose combined evaluations are less than 100% may still be rated totally disabled and paid at the 100% rate, if they are unable to follow substantially gainful employment (individual unemployability) because of their service connected disabilities. Marginal employment, defined as earned annual income less than the poverty threshold for one person, is not “substantially gainful employment,” and does not preclude a finding of individual unemployability.

The various rates of compensation and special monthly compensation are set out in Adjudication Manual M21-1, Appendix B, and Appendix X of this book on page 256.

Usually, only service connected disabilities are considered in determining the levels of disability compensation. There are two exceptions: If a veteran has loss or loss of use of paired extremities (arms, legs) or paired organs (eyes, ears, kidneys, lungs), and one extremity or organ is service connected but

the other extremity or organ is not service connected (and not the result of willful misconduct), disability compensation is paid as though both were service connected. [38 §C.F.R. 3.383]. Since these disabilities are at least in part service connected, the veteran is entitled to all ancillary benefits flowing there from. However, if the veteran receives any payment from a judicial award, settlement, or compromise based on the loss or loss of use of the paired (non-service connected) extremity or organ, the additional portion of compensation based on that loss must be withheld to recover the amount of the award, settlement, or compromise. This does not apply to Social Security or Workman’s Compensation benefits, even if they were awarded by judicial proceedings.

The second exception is disability compensation under 38 U.S.C. §1151. If a non-service connected disabling condition is caused by, or aggravated by, VA examination, hospitalization, medical or surgical treatment, or Vocational Rehabilitation, compensation is payable for that condition as though the condition was service connected. Remember, however, that even though compensation is being paid, the condition is in fact not service connected and should not be called such. Except for certain ancillary benefits which specifically require that the qualifying disability have been incurred in or aggravated by military service, disability benefits under these provisions are essentially indistinguishable from service-connected benefits. Compensation for disabilities under Section 1151 may be combined with compensation for any service connected conditions the veteran may also have.

If the veteran is awarded any amount from a judicial judgment, settlement, or compromise for the same condition(s) for which compensation under Section 1151 has been (or will be) authorized, the compensation payable for such condition(s) must be withheld until the full amount of the judgment, settlement, or compromise has been recovered.

Finally, but certainly not least, VA administers pensions to recipients of the Medal of Honor. Although this benefit is not income related, it is listed as a “pension”. At this time Congress has set monthly rate for this benefit at $1,299.61per month.

EVALUATIONS/THE RATING SCHEDULE

A full study of the evaluation of service connected conditions is beyond the scope of this deskbook, and is dépendent on a combination of training and experience. However, service officers, especially service officers conducting rating reviews in Regional Offices, need to be familiar with basic rating considerations. Reviewing and understanding 38 C.F.R. §§4.1 to 4.31 will be very helpful, beginning with §§ 4.1, 4.2, 4.6, 4.7, and 4.10. http://www.benefits.va.gov/WARMS/bookc.asp#c

Note : we would suggest that it is almost always a mistake to read and try to apply one section of the regulations by itself ; most regulations need to be read and applied in conjunction with other regulations. Also, although we have included this discussion in the chapter on service connected compensation, VA raters use the same disability rating schedule for rating pension claims.

To begin, parts of two general regulations in the rating schedule are shown here:

§4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability….

§4.10 Functional impairment.

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. …

Further Evaluation Points : Pyramiding, the Amputation Rule, Loss of Use

There are some fairly common phrases that are encountered in service connected evaluations. Service officers, especially service officers assigned to VA Regional Office rating board review, should be familiar with these regulations and be able to explain them to veterans.

First is “pyramiding” [38 C.F.R. § 4.14]. What this regulation means, in general terms, is that every disabling symptom of a disability should be factored in the evaluation of that disability once, but not more than once. There are some very rare exceptions to this rule.

Second is the “amputation rule”. [38 C.F.R. §4.68]. This regulation, again in general terms, means that if there are multiple disabilities affecting an extremity, the combined evaluation of those disabilities cannot exceed the evaluation for that extremity if that extremity were to be amputated at the highest portion of that extremity affected by the disabilities.

Third is “loss of use” [38 C.F.R. §4.63] This regulation states that loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. This determination is made on the basis of the actual remaining function of the hand or foot.

These rules have been subject to interpretation and exception over the years. This is, of necessity, a nutshell explanation.

Individual Unemployability

One of the areas that service officers should understand is Individual Unemployability (also known as IU, or TDIU—Total Disability due to Individual Unemployability). The regulation pertinent to this is:

38 CFR § 4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce or Bureau of the Census as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

Over the years this regulation has caused considerable confusion and has been the subject of several COVA/CAVC decisions. The underlying principle is that in a given (“individual”) veteran’s case, his disabilities meet the criteria for a disability evaluation of 60%, 70%, etc. However, in this veteran’s case, his/her disabilities are such that this veteran is effectively unable to obtain and retain substantially gainful employment, and should be paid at the total (100%) rate. In a sense, TDIU is an extraschedular

evaluation that can be granted by the local Rating Board, that does not require submission to VA Central Office for approval. As stated in a Court decision upholding a denial of a claim for TDIU: “The Board’s task was to determine whether there are circumstances in this case apart from the nonservice-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80% combined disability rating….For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant’s case outside the norm of such veteran…A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.” Willard Van Hoose, v.Jesse Brown, 1993.

In Dingess/Hartman v. Nicholson (2006), the U.S. Court of Appeals for Veterans Claims (CAVC) established notification requirements in compensation claims for specific evaluations or effective dates. Whenever a Veteran requests or asserts entitlement to a specific evaluation, including a total evaluation based on individual unemployability (IU), or to a specific effective date, the VCAA notice must address the criteria needed to substantiate that claim.

In 2013, via Fast Letter, VA slightly modified the process for determinations of IU. First, application on a 21-8940 is mandatory. Second, the veteran should specify, to the extent possible, which service connected disability or disabilities are keeping him/her from working. Previously, if a veteran was service connected for several disabilities, a claim for IU required evaluation, sometimes necessitating multiple examinations, of all the veteran’s service connected conditions. There is also apparently some confusion related to marginal employment in evaluations for Unemployability, and the requirement to report income from such employment in pension cases. In pension cases such income, however minimal, must be reported. Income alone will not be determinative in whether or not a pension rating would be terminated (see 38 C.F.R. 3.105(f)for the regulation regarding the regulatory process for discontinuing pension); likewise, income alone will not be determinative in whether or not an Unemployability rating is discontinued. For guidance, please refer to the regulation, part of which is repeated here: For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce or Bureau of the Census as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. There are three additional paragraphs in the rating schedule that service officers need to be aware of; these paragraphs permit Temporary Total (100%)evaluations for service connected conditions in specific situations.

§4.28 Prestabilization rating from date of discharge from service. The following ratings may be assigned, in lieu of ratings prescribed elsewhere, under the conditions stated for disability from any disease or injury. The prestabilization rating is not to be assigned in any case in which a total rating is immediately assignable under the regular provisions of the schedule or on the basis of individual unemployability. The prestabilization 50-percent rating is not to be

55 used in any case in which a rating of 50-percent or more is immediately assignable under the regular provisions.

Rating Unstabilized condition with severe disability: Substantially gainful employment is not feasible or advisable ...... 100 Unhealed or incompletely healed wounds or injuries: Material impairment of employability likely ...... 50

There are aspects of Paragraph 28 that service officers need to understand and be able to explain. This is important, particularly for service officers who are involved with some of the Predischarge claim programs, or who are assisting substantial numbers of soon-to-be discharged service members or recently discharged service members with substantial disability. The specific purpose of this paragraph is to provide a temporary evaluation for severely disabled veterans as soon as practical after their separation from service, when there are aspects of the disability that it will take time to determine, and/or if there are severe conditions that are so new that it will take time to determine the chronic residuals thereof. This provision allows the rating board to assist a veteran, at a time when the need may be very critical, without delay while a condition stabilizes or all residuals of a major injury can be “sorted out”. The regulation also directs that prestabilization ratings are for assignment in the immediate postdischarge period, will continue for a 12-month period following discharge from service, and require an examination to be accomplished between 6 months and 12 months following discharge. Note that if there is evidence justify it, prestabilization ratings may be changed to a regular schedular total rating or one authorizing a greater benefit at any time.

§4.29 Ratings for service connected disabilities requiring hospital treatment or observation. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service connected disability for a period in excess of 21 days. [Note: in excess of 21 days. A hospital stay of exactly 21 days does not trigger this temporary total evaluation]

(a) Subject to the provisions of paragraphs (d), (e), and (f) of this section, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service connected disability. A temporary release, which is approved by an attending Department of Veterans Affairs physician as part of the treatment plan, will not be considered an absence.

(1) An authorized absence in excess of four days, which begins during the first 21 days of hospitalization, will be regarded as the equivalent of hospital discharge effective the first day of such authorized absence. An authorized absence of four days or less which results in a total of more than eight days of authorized absence during the first 21 days of

hospitalization will be regarded as the equivalent of hospital discharge effective the ninth day of authorized absence.

(2) Following a period of hospitalization in excess of 21 days, an authorized absence in excess of 14 days or a third consecutive authorized absence of 14 days will be regarded as the equivalent of hospital discharge and will interrupt hospitalization effective on the last day of the month in which either the authorized absence in excess of 14 days or the third 14 day period begins, except where there is a finding that convalescence is required as provided by paragraph (e) or (f) of this section. The termination of these total ratings will not be subject to 3.105(e) of this chapter.

(b) Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order.

(c) The assignment of a total disability rating on the basis of hospital treatment or observation will not preclude the assignment of a total disability rating otherwise in order under other provisions of the rating schedule, and consideration will be given to the propriety of such a rating in all instances and to the propriety of its continuance after discharge. Particular attention, with a view to proper rating under the rating schedule, is to be given to the claims of veterans discharged from hospital, regardless of length of hospitalization, with indications on the final summary of expected confinement to bed or house, or to inability to work with requirement of frequent care of physician or nurse at home.

(d) On these total ratings Department of Veterans Affairs regulations governing effective dates for increased benefits will control. [This is a reference to the end-of-the-month provision of the 1982 Omnibus Budget Reconciliation Act].

(e) The total hospital rating if convalescence is required may be continued for periods of one, two or three months in addition to the period provided in paragraph (a) of this section.

(f) Extension of periods of one, two or three months beyond the initial three months may be made upon approval of the Veterans Service Center Manager.

(g) Meritorious claims of veterans who are discharged from the hospital with less than the required number of days but need post-hospital care and a prolonged period of convalescence will be referred to the Director, Compensation and Pension Service, under 3.321(b)(1) of this chapter.

§4.30 Convalescent ratings.

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed

care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of one, two or three months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to 3.105(e) of this chapter. Such total rating will be followed by appropriate scheduler evaluations. When the evidence is inadequate to assign a scheduler evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section.

(a) Total ratings will be assigned under this section if treatment of a service connected disability resulted in:

(1) Surgery necessitating at least one month of convalescence (effective as to outpatient surgery March 1, 1989.)

(2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.)

(3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.)

A reduction in the total rating will not be subject to 3.105(e) of this chapter. The total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign the schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period.

(b) A total rating under this section will require full justification on the rating sheet and may be extended as follows:

(1) Extensions of one, two or three months beyond the initial three months may be made under paragraph (a)(1), (2), or (3) of this section.

(2) Extensions of one or more months up to six months beyond the initial six month period may be made under paragraph (a)(2) or (3) of this section upon approval of the Veterans Service Center Manager.

Note : It doesn’t happen often, but when a Veteran in receipt of disability compensation returns to active duty, VA must terminate his/her disability compensation. Once the Veteran is released from active duty, VA may resume benefits immediately for any service-connected disability that is considered static. (A disability is considered static unless the prior rating decision indicates a routine, future examination of the disability is necessary.) Note: The rating activity must re-evaluate any non-static disabilities.

General Information on the Recoupment of Benefits

M21-1MR, Part III, Subpart v, Chapter 4, Section B Some veterans may receive various readjustment, separation, and severance payments from service departments that must be recouped in full or in part from Department of Veterans Affairs (VA) benefit payments. 38 CFR §3.700 prohibits duplication of payments when a veteran receives:

active duty pay for return to active duty, as described in M21-1MR, Part III, Subpart v, 4.C.16.a military retired pay; with information on − restrictions to compensation and retired pay at 38 CFR 3.750, and − exceptions to restrictions at M21-1MR, Part III, Subpart v, 5.A.1.a lump sum readjustment pay under former 10 U.S.C. 687 and 3814a separation pay under 10 U.S.C. 1174 Special Separation Benefit (SSB) under 10 U.S.C. 1174a Voluntary Separation Incentive (VSI) under 10 U.S.C. 1175 disability severance pay under 10 U.S.C. 1212(c), and/or non-disability severance pay under 10 U.S.C. 1174(h)(2). The VA should not recoup the following benefits when a veteran becomes entitled to Department of Veterans Affairs (VA) pension benefits: readjustment pay separation pay under 10 U.S.C. 1174, or severance pay.

However, these benefits are countable income if received after the date of entitlement to VA pension. Count the gross amount received, including any amounts withheld for tax purposes. Also, see Chapter 20, page 180 for information regarding legislation that restores portions of waived military retired pay for certain service connected veterans. The table below lists the benefits to recoup when a veteran becomes entitled to VA compensation benefits and includes cross-references to specific information about recouping those benefits. Benefit Reference Readjustment pay awarded under former 10 See U.S.C. 3814a • M21-1MR,Part III, Subpart v, 4.B.5.d, and M21-1MR, Part III, Subpart v, 4.B.5.f. Readjustment pay awarded under former See 10 U.S.C. 687 M21-1MR, Part III, Subpart v, 4.B.5.e, and M21-1MR, Part III, Subpart v, 4.B.5.f. Separation pay awarded under 10 U.S.C. See M21-1MR, Part III, Subpart 1174 v, 4.B.5.g. SSB awarded under 10 U.S.C. 1174a See M21-1MR, Part III, Subpart VSI awarded under 10 U.S.C. 1175 v, 4.B.8.

Severance pay awarded under 10 USC §3786 (Pub. L. 86-155) is a lump-sum payment to members of the regular establishment who are separated usually due to their failure to qualify for promotion. There is no provision in the law requiring refund of severance pay awarded under this section. This provision of Title 10 was repealed by Public Law 96-513, effective September 15, 1981. Any individual separated after that date who would have been entitled to severance pay under 10 USC 3786 will receive separation pay, subject to recoupment, under 10 USC 1174. See paragraph 20.31a(3).

DISABILITY DISCHARGE

There are several means by which injured military personnel may obtain compensation, including disability discharge and retirement programs administered by the service branches and compensation programs administered by the U.S. Department of Veterans Affairs. But since injured personnel (or their families in some instances) will be compelled at a time of great anxiety in their lives to make decisions on matters that have significant long-term consequences, it is very important for injured personnel to understand that waiving certain rights in order to obtain some immediate benefit, such as release from active duty, may not serve their best interests in the long run. There is no need for disabled reservists or National Guard members to rush back to their civilian jobs, which may pay more, since their position is protected by the Veterans Reemployment Rights Act. If necessary, they can keep their options open by requesting excess leave without pay.

Disability Discharge Process

The military disability discharge process is very complicated, and problems that already exist with this process will surely be exacerbated when the service departments have to deal with large numbers of combat-related disabilities. However, the options available to injured and disabled military personnel are clearly set in place.

Provided that their injuries are not the result of their own intentional misconduct or willful neglect (for which disabled service members are promptly discharged without benefits of any kind), military personnel who are disabled while on active duty can be:

(A) treated and returned to duty, if and when they are fit for duty;

(B) discharged as medically unfit, with disability severance pay, if the degree of disability is less than 30 percent, according to the VA rating schedule (38 C.F.R. Part 4, also used by the service departments);

(C) placed on the Temporary Disability Retired List (TDRL) with a temporary rating, to be evaluated later for permanency; or

(D) medically retired (disability retirement) with a percentage rating, giving them many of the same benefits awarded to regular military retirees (most desirable if the individual has been seriously and permanently injured).

Each of these options is discussed in detail below:

Return to Active Duty

If the service member is injured but recovers sufficiently to return to active duty, he should be sure that he or his family obtains complete copies of the medical records of his injury and how it was treated. Though the injury will be noted in his service record, many of the details of his injury may not appear there. If he should experience any delayed effects of the injury after later release from service, the records he obtains from the hospital or the doctor who treated him will be valuable evidence when he applies for VA disability benefits. Without such records in his file, the service member may even find it difficult to document his injury for the VA. Generally, it is helpful in every case of injury for the service member to obtain copies of these records.

Discharge with Disability Severance Pay

A service member who has less than 20 years of service and a disability evaluation of less than 30 percent may be discharged as not fit for duty with severance pay, which is paid at separation in a lump sum, based on the basic pay of the service member’s current active duty grade. If the service member’s disability was caused by armed conflict or extra-hazardous service, his severance pay does not count as taxable income.

Although the service member may be eligible for VA compensation benefits for the same disability for which he received his severance pay, the VA will not be able to pay any compensation benefits for this disability until the total amount of the compensation benefits, which would have been paid, is equal to the amount of the severance pay. An exception to total recoupment of VA compensation is the veteran receives an increase in compensation for same disability at a later date, the VA will only recoup at the original rating.

For example: A veteran has an original rating of 10% and later receives an increase to 20%, the VA will only recoup at the 10% rate and the veteran will receive compensation for the difference. Also, if the veteran is rated totally disabled (100%) for same condition, the VA will stop all recoupment.

Separation with severance pay is tempting to many service members because it gives them an opportunity to leave the service immediately, even if they suspect that their injuries are more than 30 percent disabling.

However, severance pay is a one time, lump-sum payment. Disability retirement provides monthly benefits and may yield higher benefits in the long run. In addition, a higher disability percentage at discharge may improve the service member’s chances of obtaining higher VA service connected compensation. Thus, it may be wise for the service member to challenge his disability rating if he thinks it is too low, even though this will mean staying in the military for a longer period of time.

Medical Retirement

A service member who is medically retired (disability retirement) with a disability rating of 30 percent or more will be paid between 30 and 75 percent of his basic pay for the rest of his life. Since he is viewed as a retired service member, he is also entitled to all of the retirement benefits, such as PX privileges and health care, to which other retired military personnel are entitled, plus an income tax exclusion.

Disability retirement pay is calculated in one of two ways, based on the service member’s basic pay and either length of service or percentage of disability. He can choose the method of computation that will give him the highest benefits. In such cases, though the VA is not required to accept the disability evaluation of the service department, the VA does review these decisions after the service member has been retired and accords them some weight.

Personnel are permanently retired on disability if their disabilities are permanent, but when it is not clear whether the disability is permanent, they are placed on the Temporary Disability Retired List (TDRL), with pay based on the degree of disability, and re-evaluated every 18 months. Final decisions are made in such cases after five years. As noted above, permanent disability retirement is usually most desirable if the service member has suffered a serious injury.

PAYMENT OF COMPENSATION DURING CONFINEMENT IN PENAL INSTITUTIONS (38 USC 5313 and 38 CFR 3.665)

(A) Compensation may not be paid in excess of certain amounts for any person incarcerated in a federal, state or local penal institution for conviction of a felony for any period beginning on the 61st day of incarceration. The person’s dependents may have the right to an apportionment while the beneficiary is incarcerated. (B) This restriction in payments applies to persons incarcerated due to conviction of a felony committed after October 7, 1980, or, regardless of when the felony was committed, if the person was incarcerated on October 1, 1980, and if an award of compensation is approved after September 30, 1980. (C) Veterans rated 20 percent or more disabled in receipt of compensation are limited to the rate of 10 percent disability. Veterans rated less than 20 percent, 10 percent or special monthly compensation (k) or (q), are limited to one-half of the 10 percent rate. (D) All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran's spouse, child or children and dependent parents on the basis of individual need. In determining individual need consideration shall be given to such factors as the apportionee claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other apportionee claimants as well as any special needs, if any, of all apportionee claimants. (E) Any apportionments will be discontinued and full benefits restored to the beneficiary upon release from incarceration or upon participation in a work release or halfway house program.

APPLICATION PROCESS FOR COMPENSATION http://www.benefits.va.gov/BENEFITS/Applying.asp

(A) An original claim can be made formally by completing and submitting to any VA office the VA Form 21-526, Veterans Application for Compensation or Pension. Specific information regarding Intent To File is set out in Appendix Q page 238.

(B) Once a VA Form 21-526 has been completed and submitted, it is generally not necessary to resubmit this form to obtain further claims action. Any time after submission of a formal claim, the veteran can request reconsideration based on the existence of new and material evidence. Medical evidence should be submitted to indicate a change in the severity of a service connected disability. Other pertinent evidence might take the form of statements (VA Form 21-4138, Statement in Support of Claim), additional history of medical treatment, or record of ability to perform on the job. A request can also be made for consideration for service- connection of disabilities not previously claimed.

(C) In requesting consideration of a total disability rating based on unemployability, VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, must be used.

(D) If a claim for disability compensation is made within one year after release from active duty, the effective date of the award will be the date following such release.

Claims made after one year from the date of release from active service are generally effective from the first day of the month following the date of receipt of the claim by VA.

(F) Compensation may also be paid when injury, either directly or by aggravation, results from submitting to an examination, medical or surgical treatment, hospitalization, or the pursuit of a course of vocational rehabilitation (38 USC Ch 31) under any law administered by VA. (1151 claim).

Application for compensation filed on active duty shortly prior to separation:

http://www.benefits.va.gov/predischarge/

http://www.benefits.va.gov/TAP/documents/VA_benefits_briefing_reference_Guide_English.pdf

The Pre-Discharge program has been in existence in various forms for more than 10 years. This program is designed to assist servicepersons in filing initial disability claims with VA, to expedite action on their compensation claims, and to minimize the delay between his/her separation from service and receipt of a determination from VA.

The current components of the Pre-Discharge Program are:

• Benefits Delivery at Discharge (BDD) • Quick Start • Overseas Intake Sites

Pre-discharge claims allow servicepersons to file their disability claims while on active duty. The goal of the program is to provide benefits as quickly as possible following separation. A pre-discharge claim is a claim accepted from a serviceperson currently serving on active duty. Pre-discharge claims may be original claims, claims for increase, or claims for re-instatement of compensation. A pre-discharge claim may or may not be considered a benefits delivery at discharge (BDD) claim. A pre-discharge claim that is not a BDD claim is rated at a regional office (RO).

A BDD claim is a specific type of pre-discharge claim that is accepted from a serviceperson on active duty at a BDD intake site processed through the BDD program, and rated at a rating activity site (RAS). To be eligible to participate in the BDD program, a serviceperson must have at least 60, but no more than 180 days remaining on active duty, and be available to attend all required examinations scheduled by the intake site.

There are County Veterans Service Officers who are located in areas where they can be of great assistance in these programs. The Pre-Discharge Program is a joint Department of Veterans Affairs (VA) and Department of Defense (DoD) program that affords service members the opportunity to file claims for disability compensation up to 180 days prior to separation or retirement from active duty or full time National Guard or Reserve duty (Titles 10 and 32).

To file a Pre-discharge claim the service member needs to complete the new two page VA Form 526c, Pre-Discharge Compensation Claim and submit it with service treatment records (originals or copies) to the nearest VA location. While in the Pre-Discharge Program, members may also apply for other VA benefits, such as Vocational Rehabilitation and Employment, Education, and Loan Guaranty. BDD and Quick Start are available nationwide and open to all service members on full time, active duty to include members of the National Guard and Reserves. Members of the Coast Guard may also participate. The process can begin at a military installation/intake site or VA Regional Office.

Two overseas military installations have processes in place to accept BDD claims: South Korea and Germany. [Beginning in October 2005, the Pittsburgh Regional Office assumed the oversight of the Benefits Delivery at Discharge (BDD) Intake Activities in Korea and Germany. These BDD sites receive claims from service members; however, the consolidated BDD sites (Winston-Salem and Salt Lake City) are responsible for the rating and promulgation of these claims.The BDD Intake Activity in Korea is located at the Army base in Yongsan. The BDD Intake Activity in Germany is located in Landstuhl.]

• An online application is available. In order to expedite processing of the claim, call the toll-free number, 1-800-827-1000, to obtain the address to send a copy or original of service treatment records. • Visit the VA Returning Service Members (OEF/OIF) homepage for additional information, including resources for family and outreach activities, for returning service members. http://www.oefoif.va.gov/ • VA Benefits in Brief http://www.vba.va.gov/pubs/forms/VBA-21-0760-ARE.pdf is a printable document that provides an at-a-glance description of VA benefits, as well as contact phone numbers and locations. • It may also be helpful to check https://www.dmdc.osd.mil/appj/dwp/index.jsp http://www.militaryonesource.mil/transition/leaders?Content_id=268283 and www.MilitaryOneSource.com for 24/7 access to helpful guides on pre-separation and transition, information on employment, education, relocation, benefits, and more. • There is more information on Pre Discharge Exams and the programs designed to expedite claims, and decisions, upon separation from service at: http://www.vba.va.gov/predischarge/index.htm

Integrated Disability Evaluation System

The Integrated Disability Evaluation System (IDES) is used to determine a Servicemember's fitness for duty. The Departments of Defense (DoD) and Veterans Affairs (VA) worked together to make disability evaluation seamless, simple, fast and fair. If the Service member is found medically unfit for duty, the IDES gives them a proposed VA disability rating before they leave the service.

In late March, 2014, VA published major procedural changes to the IDES program. The entire manual subchapter may be found at: http://www.benefits.va.gov/WARMS/M21_1MR3.asp

Excerpts from that new subchapter have been placed in Appendix S, page 242.

For More Information

While in a pre-discharge program, a service person may also apply for other VA benefits, such as Vocational Rehabilitation and Employment, Education, and Loan Guaranty. The following resources are available when initially applying for benefits:

Visit VA Returning Servicemembers (OEF/OIF) and Seamless Transition for additional information, including resources for family and outreach activities for returning Servicemembers.

The Summary of VA Benefits is a printable brochure that provides at-a-glance description of VA benefits.

Visit DoDTAP and MilitaryOneSource for 24/7 access to helpful guides on pre-separation and transition, information on employment, education, relocation, benefits, and more.

VA continues to try to improve its service to veterans shortly before their separation from service. For extensive information on the current Transition Assistance Programs, see…..http://www.benefits.va.gov/VOW/tap.asp

The Fully Developed Claim

Reference: http://benefits.va.gov/TRANSFORMATION/fastclaims/index.asp http://www.benefits.va.gov/FDC/walkthrough.asp

To see a webinar on the Fully Developed Claim Program, and to see links to multiple videos on various VA programs, see: http://www.youtube.com/watch?v=TfLbUAvz3Wo

The Fully Developed Claims (FDC) program is an optional new initiative that offers Veterans and survivors faster decisions from VA on compensation, pension, and survivor benefit claims. The Department of Veterans Affairs (VA) also designed the FDC Program for the purpose of reducing its backlog of pending claims, and improving claims-processing timeliness.

Veterans and survivors simply submit all relevant records in their possession, and those records which are easily obtainable, such as private medical records, at the time they make their claim and certify that they have no further evidence to submit. VA can then review and process the claim more quickly. VA established the Fully Developed Claim Program to expeditiously process claims certified by the claimant or his/her representative as meeting the Fully Developed Claim criteria.

Activities that result in delays at the beginning of the traditional claims process include the following:

providing claimants with the notice 38 U.S.C. 5103 requires regarding the evidence they must submit in order to establish entitlement to the specific benefit they are seeking allowing claimants up to 30 days to respond to the notice, and gathering the evidence that claimants assert supports their claim. The FDC Program allows VA to eliminate these delays and divert the time and resources it normally devotes to the actions described above to other claims- processing activities. In essence, the point is to give VA a factually and legally sufficient basis to make a decision rather than have to do additional development. It does this by requiring claimants that choose to participate in this program to submit their claim on a specific form that contains language which satisfies the notice requirements of 38 U.S.C. 5103, and simultaneously with their claim submit all private medical treatment records, identify any relevant treatment records at a Federal facility, and submit any additional forms or treatment records required under special circumstances that support their specific claim.

Reference: For information about the forms claimants must use when submitting an FDC, see M21-1MR, Part III, Subpart i, Chapter 3.

The table below lists the forms claimants must complete, sign, and return to VA in order to participate in the FDC Program.

If the claimant is seeking ... Then the claimant must use ... disability compensation VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. disability pension VA Form 21-527EZ, Application for Pension. death benefits VA Form 21-534EZ, Application for DIC, Death Pension, and /or Accrued Benefits. VA Form 21-526EZ provides claimants with the notice 38 U.S.C. 5103 requires for the following types of disability compensation claims:

service connection (original, new, secondary, or reopened) for disabilities related to the following types of service: − active duty − active duty for training, or − inactive duty training increased disability rating individual unemployability temporary total disability rating due to − hospitalization, or − surgical or other treatment compensation under 38 U.S.C. 1151 special monthly compensation (SMC) based on the − need for aid and attendance, or − status of being housebound additional benefits for a spouse who needs aid and attendance specially adapted housing or special home adaption automobile allowance or adaptive equipment, and additional compensation for a Veteran with a helpless/seriously disabled child.

VA Form 21-527EZ provides claimants with the notice 38 U.S.C. 5103 requires for the following types of disability pension claims:

Improved Pension special monthly pension (SMP) based on the − need for aid and attendance, or − status of being housebound, and additional Improved Pension benefits for a Veteran with a helpless/seriously disabled child.

VA Form 21-534EZ provides claimants with the notice 38 U.S.C. 5103 for claims for the following types of death benefits: accrued benefits Dependency and Indemnity Compensation (DIC) for death related to the following types of service: − active duty − active duty for training, or − inactive duty training DIC under 38 U.S.C. 1318 DIC under 38 U.S.C. 1151 death pension and parents’ DIC additional death benefits based on the − need for aid and attendance, or − status of being housebound, and benefits for a deceased Veteran’s helpless/seriously disabled child.

There are reasons for which a claim may be excluded from the FDC program, either initially or during the course of processing The VA has provided some of the reasons for such exclusion.

Even though a claimant submits one of the EZ forms listed in the manual, VA will exclude the claim from the FDC Program if: the claimant − indicates he/she does not want VA to process his/her claim under the FDC Program (as discussed in M21-1MR, Part III, Subpart i, 3.A.2.b − has a claim pending at the time VA receives the EZ form − has an appeal pending at the time VA receives the EZ form and the claims folder is not located at the regional office (RO) of jurisdiction, or − fails to simultaneously submit any of the additional items VA requires to process his/her specific claim, which are listed under the second FDC criterion on the first page of the EZ form, or any of the following are required to resolve the claim: − character-of-discharge determination, or − development for evidence from . the claimant . (a) private medical care provider(s), or . a Veteran’s Reserve/Guard unit(s). Even though a claim may initially meet the criteria for processing under the FDC Program, VA may later exclude the claim from the program if the claimant:

fails to report for a VA examination and asks VA to reschedule it (unless VA is solely at fault because it, for example, did not provide the examining facility with the claimant’s correct mailing address), or submits another claim, additional evidence, or a notice of disagreement after submitting the FDC.

All, if any, relevant, private medical treatment records for the disabilities he/she is claiming and an identification of any treatment records from a Federal treatment facility such as a VA medical center. For Guard and Reserve members, any and all Service Treatment and Personnel Records in the custody of his/her Unit(s). If claiming dependents, a completed VA Form 21-686c, Declaration of Status of Dependents.

The veteran must report for any VA medical examinations VA determines are necessary to decide the claim. Additional information regarding the Program is provided on the instruction pages of the 21-

526EZ (available online). http://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf

Upon receipt of the Fully Developed Claim Certification, VA will expedite the claim under the Fully Developed Claim Program. If it is determined that the claim does not meet the Fully Developed Claim criteria VA will process the claim through the standard claim process. Note that the Fully Developed Claim program is an option for original claims and claims for increase in the evaluation of a disability already established as service connected.

Critical to the success of a claim under the Fully Developed Claim program are a)sufficient information to enable VA to locate and request any treatment records in federal custody (e.g. Service Treatment Records, VA treatment records), records of private (non-federal)medical treatment, and b)the certification that all available medical evidence has been identified and/or submitted, and that DVA has the legal right to decide the claim if possible on the evidence of record without further exercise of the Duty to Assist.

VA’s site instructions to prepare an FDC? Register for an eBenefits.va.gov account. Appoint an accredited Veterans Service Officer who can provide free, expert assistance. Gather relevant documents, such as private medical records. While VA will obtain Federal records on your behalf, such as your DD-214 or service medical records, submitting them, if you have them will save time. If you believe there is not a notation in your service record describing your disability, submit letters from friends or those you served with that tell us about the facts of your claim ("buddy statements"). Initiate the claim at eBenefits.va.gov or call 1-800-827-1000 for assistance. Here's a detailed, easy-to-follow, checklist on how to prepare your FDC Here's an easy to use brochure on the FDC program that you can download http://benefits.va.gov/BENEFITS/videos.asp (a video on the Fully Develped Claim)

4.5 Effective Dates

The subject of effective Dates for VA benefits can be extremely confusing. The following is an overview of the most common situations. For effective dates related to liberalizing legislation please see Appendix T page 244 below:

When VA makes a determination that a compensation award is to be paid based on a claim, an effective date is also assigned. The effective date determines when benefits are payable. Effective dates can vary based on the type of benefit and the circumstances of the claim. Listed below are the most common types of claims and generally how effective dates are assigned for each type.

Direct Service-Connection Generally, an effective date for service-connection for a disability that is directly linked to an injury or disease that was incurred or aggravated by military service is the date VA receives a claim or the date entitlement arose, whichever is later. The date entitlement arose means the date the condition was shown to exist by medical evidence. There is an exception in cases where the claim is filed within one year of separation from active military service. For these claims, the effective date will be the day following separation.

Presumptive Service-Connection Generally, an effective date for service-connection for a disability that is presumed to be related to military service is the date entitlement arose if the claim is received by VA within one year of release from active duty. If the claim is received by VA after one year of release from active duty, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. Note: changes in legislation or regulation interpretation are the most common circumstances where the effective date is related to liberalizing legislation (Appendix T)

Reopened Claims Normally, the effective date for a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later.

Error If VA finds an error in a previous decision, the effective date of the new decision will be the date from which benefits would have been payable had there not been an error.

Difference of Opinion A decision that is based on a difference of opinion will have an effective date of the original decision had it been favorable.

Increases The earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, the date the claim was received.

FOR AN ORIGINAL CLAIM

VA Form 21-22 – Appointment of Veterans Service Organization as Claimant’s Representative VA Form 21-526 – Application for Veterans Compensation/Pension Certified DD 214 Social Security numbers of all dependents Current medical evidence to provide nexus/link (if claim filed within one year of discharge, medical evidence not necessary)

Optional documents to submit: Marriage Certificate Divorce decrees from all previous marriages for both veteran and spouse If applicable, death certificate of previous marriages for both veteran and spouse Birth certificates for all minor children and children over 18 in school If an unmarried child(ren) over 18 still in school, submit VA Form 21-674 for each child over 18

REOPEN PREVIOUSLY DENIED S/C CLAIM

VA Form 21-526EZ New and Material Evidence [Explained further in Appendix G, page 316] Current medical evidence (nexus/link)(generally, signed by a doctor) If dependency not current or previously established, submit: VA Form 21-686c – Declaration of Martial Status Social Security numbers of all dependents

CLAIM FOR INCREASED S/C EVALUATION VA Form 21-4138 Current medical evidence indicating s/c condition has worsened If dependency not current or previously established, submit: VA Form 21-686c Social Security Numbers of all dependents

CLAIM FOR INDIVIDUAL UNEMPLOYABILITY(TDIU) VA Form 21-8940 Application for Individual Unemployability VA Form 21-4192 Employer’s Statement VA Form 21-4138 Current Medical Evidence if not already on file If dependency not current or previously established, submit: VA Form 21-686c and Social Security Numbers of all dependents

CHAPTER 5

NON-SERVICE CONNECTED DISABILITY PENSION

References:

Title 38, U.S. Code, Chapter 15

Adjudication Manual M21-1MR (Manual Rewrite), Part 5

VA Pamphlet: Federal Benefits for Veterans and Dependents

38 C.F.R. §3.321

http://benefits.va.gov/pension

http://benefits.va.gov/pension/vetpen.asp

http://benefits.va.gov/BENEFITS/factsheets/limitedincome/livepension.pdf (possibly well worth printing out as a handout for clients)

https://www.youtube.com/watch?v=3_U_Ki-QwB0

PENSION OVERVIEW

Pension is a needs based benefit paid to wartime veterans who have limited or no income, and who are age 65 or older, or, if under 65, who are permanently and totally disabled. Veterans who are more seriously disabled may qualify for Aid and Attendance or Housebound benefits. These are benefits that are paid in addition to the basic pension rate. The nature of this benefit and the circumstances of most pension claimants make it vital that the Service Officer understand the mechanics of this benefit and be able to explain it to and assist claimants. Generally a veteran may be eligible if:

• He/she was discharged from service under conditions other than dishonorable, served at least 90 days of active military service 1 day of which was during a war time period. If the veteran entered active duty after September 7, 1980, generally he/she must have served at least 24 months or the full period for which called or ordered to active duty (There are exceptions to this rule),

AND

• countable family income is below a yearly limit set by law (The yearly limit on income is set by Congress),(see Appendix C, page 198 for current pension income limits). • AND • is age 65 or older, OR, is permanently and totally disabled, not due to willful misconduct.

As you can see, there are a number of criteria that affect eligibility to pension benefits. If there is doubt, it is generally better to apply; VA will determine if the veteran is eligible and notify him/her. It is also critical to know that if the claimant does not initially qualify due to income or net worth, he may reapply if he has un-reimbursed medical expenses during the twelve month period after VA receives the claim that bring his countable income below the yearly income limit. (These are expense have paid for medical services or products for which there is no reimbursement by Medicare or private medical insurance.). He may also reapply at any time if there are changes in his income that would bring his countable income below the regulatory pension limit. It is important for the Service Officer that the veteran understand this.

NOTE: Under the applicable law payments are reduced by the amount of countable income of the veteran, spouse and dependent children. When a veteran without a spouse or a child is furnished nursing home or domiciliary care by VA, the pension is reduced to an amount not to exceed $90 per month after three calendar months of care. The reduction may be delayed if nursing-home care is being continued to provide the veteran with rehabilitation services.

There are currently three major pension programs administered by VA: the Old Law pension program formerly known as ‘protected pension’ for those veterans and dependent applicants receiving benefits on June 30, 1960; The pension program under Public Law 86-211, also known as Section 306 Pension for those who filed on or after July 1, 1960; and the current pension program, the Improved Pension Law (Public Law 95-588), effective January 1, 1979. As time passes the number of pensioners receiving pension under prior laws represents a rapidly decreasing percentage. As of latest available report, for example, there were fewer than 40 veterans receiving Old Law Pension, and fewer than 3,000 veterans receiving pension under PL86-211, contrasted with approximately 302,000 veterans receiving Improved Pension.

As of 10-1-2014 (latest breakdown available) Number of Veterans Other Pension 2,026 Improved Pension 302,530 Total 304,556

VA has uploaded a number of helpful videos to assist claimants and service officers. This one on pension can be helpful in providing a thumbnail explanation of pension and special monthly pension (called “enhanced pension”)to a client, or may be helpful to you in formulating your explanation to a client who is not as familiar with the system or the terminology.

https://www.youtube.com/watch?v=3_U_Ki-QwB0

IMPROVED PENSION (1) BENEFIT

a. Pension is a monthly payment to a veteran who served under honorable conditions during the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, or the Persian Gulf War, with additional money for his or her spouse and dependent children. Pension may be payable to a veteran who is permanently and totally disabled as a result of non-service connected disability. [Note below the definitions for “Permanent” and “Total” for pension purposes].

b. Applicants for pension after December 31, 1978, will come under Public Law 95-588, the Improved Pension Law.

Note: Persons currently receiving pension under any of the earlier pension laws may elect to receive pension under the Improved Pension law. Such election is irrevocable, except where election was based on erroneous information furnished by VA.

(2) PERIODS OF WAR

The term “periods of war” means World War I, World War II, the Korean conflict, the Vietnam era, the

Persian Gulf War and the period beginning on the date of any future declared war by the Congress and

ending on the date prescribed by Presidential Proclamation or concurrent resolution of the Congress.

b. The following are considered periods of war:

i. World War I –April 6, 1917, through November 11, 1918, extended to April 1, 1920, for service in Russia, and to July 2, 1921, if the veteran served between April 6, 1917, and November 11, 1918.

ii. World War II – December 7, 1941, through December 31, 1946.

iii. Korean Conflict – June 27, 1950, through January 31, 1955.

iv. Vietnam era – August 5, 1964(February 28, 1961 if the veteran served in Vietnam), through .. May 7, 1975.

v. Persian Gulf War – August 2, 1990, through a date to be set by law or Presidential Proclamation.

(3) SERVICE REQUIREMENTS

a. Ninety days or more, one of which must have been during a period of war; or

b. Discharge for service-connected disability from wartime service of less than 90 days; or

c. Ninety consecutive days or more and such period began or ended during a period of war; or

d. An aggregate of 90 days or more in two or more periods of service during more than one period of war.

e. Travel time from place of release from active duty (RAD) to home may be included in the period of active duty.

f. If the veteran was released from active duty in less than 90 days, VA may determine if the veteran was released for a service connected disability or had a service connected disability at the time of release from active duty that would have warranted a discharge for disability.

Note: In accordance with 38 CFR §3.12(a), all persons entering active duty must meet the minimum active duty requirements. After September 7, 1980, these requirements are:

a. Twenty-four months of continuous active duty. Non-duty periods that are excludable in determining the VA benefit entitlement (e.g., see §3.15) are not considered as a break in service for continuity purposes but are to be subtracted from total time served; or b. The full period for which a person was called or ordered to active duty. Persons Included:

(1) A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980 (a person who signed a delayed-entry contract with one of the service branches prior to September 8, 1980, and under that contract was assigned to a reserve component until entering on active duty after September 7, 1980, shall be considered to have enlisted on the date the person entered on active duty); and

(2) Any person (officer as well as enlisted) who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged or released from active duty under 10 USC §1171 (early out).

(4) DISABILITY REQUIREMENTS

A veteran must be permanently and totally disabled to be eligible for disability pension.[see(5)c]

A veteran who is over age 65, or a veteran under age 65 who has been determined to be permanently and totally disabled by the Social Security Administration under any of their benefit programs, or a veteran who is confined to a nursing home because of disability which is reasonable to conclude will continue throughout the life of the veteran, will be considered to be permanently and totally disabled for VA pension purposes. All other veterans must be rated permanently and totally disabled by the VA.

(5) PERMANENT AND TOTAL DISABILITY RATINGS

a. Permanent and total (P&T) ratings are based on age, the degree of disability, and unemployability. The ratings are determined in accordance with the Schedule for Rating Disabilities. (38 CFR, Part 4)

b The Rating Schedule defines total disability as an impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. Permanent total disability exists when impairment is reasonably certain to continue throughout the life of the disabled person. Examples of permanent total disabilities include the permanent loss or loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming helpless or permanently bedridden. The Rating Schedule also provides for other total disability ratings.

c. Veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanent and totally disabled for pension based on un-employability and age, if they have a single disability rated 60 percent or a combined evaluation or 70 percent, with one disability ratable at 40 percent or higher. . [please refer to the discussion of the Rating Schedule on page 51 above]

d. Marginal employment such as odd jobs will not be inconsistent with a finding of unemployability if the disabilities prevent full employment. A homemaker may qualify as unemployable if she or he is no longer able to perform the principal household duties without substantial help. Optional or forced retirement is not a basis for determining that a veteran in unemployable; rather, the determining factor is whether his or her disability and age prevent him or her from obtaining new employment. (38 CFR §4.17)

e. Disabilities due to misconduct or vicious habits may not be considered in rating a veteran’s disabilities. However, a P&T disability will not be disallowed by reason of the coexistence of misconduct disability when:

1. The veteran, regardless of employment status, also has innocently acquired 100 percent disability, or

2. When unemployable, he or she has other disabilities innocently acquired which meet the percentage requirements, and would make the average person unable to secure or follow a substantially gainful occupation.

f. It is the policy of the Secretary that all veterans who are basically eligible for pension, but fail to meet the disability requirements based on the percentage standards of the Rating Schedule and who are unable to secure and follow a substantially gainful occupation by reason of his or her disabilities, age, occupational background, and other related factors, may be eligible for pension. The Veterans Service Center Manager is authorized to approve, on an extra-schedular basis, a permanent and total rating for pension purposes. (38 CFR §3.321(b)(2))

(6)SPECIAL MONTHLY PENSION - AID AND ATTENDANCE

See http://www.law.cornell.edu/cfr/text/38/3.351

http://www.law.cornell.edu/cfr/text/38/3.352

http://benefits.va.gov/pension/aid_attendance_housebound.asp

M21-1MR, Part V, Subpart iii, Chapter 2, Section A

a. A veteran will be considered to be in need of regular aid and attendance (A&A) if he or she is a patient in a nursing home or is helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person.

b. In determining the need for regular aid and attendance, the following will be considered:

1. Inability of the veteran to: Dress or undress; Bath ones self; Feed him or herself; Attend to his or her sanitary needs; Walk in and out of home unattended, or protect himself or herself from hazards or dangers incident to the daily environment, etc., caused by mental or physical disabilities. 2. “Total blindness” and “bedridden” will be a proper basis for a favorable determination of entitlement. c. It is not required that all of the conditions enumerated above be found to exist. The personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Favorable determinations are not based solely on an opinion based on the severity of the disability; they must be based on the actual requirement of personal assistance from others.

d. When any veteran is in receipt of increased pension or additional compensation or allowance based on the need of regular aid and attendance or by reason of being permanently housebound, or who, but for the receipt of retired pay, would be in receipt of such pension, compensation, or allowance, the Secretary may furnish the veteran such medical services as he finds to be reasonably necessary.

e. The Secretary shall furnish to each veteran who is receiving additional compensation or allowance under chapter 11, or increased pension as veteran of World War I, World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War, by reason of being permanently housebound or in need of regular aid and attendance, such drugs and medicines as may be ordered on prescription of a duly licensed physician as specific therapy in the treatment of any illness or injury suffered by such veteran. The Secretary shall continue to furnish such drugs and medicines so ordered to any such veteran in need of regular aid and attendance whose pension payments have been discontinued solely because his or her annual income is greater than the

applicable maximum annual income limitation, but only as long as the annual income does not exceed such maximum annual income limitation by more than $1,000.

(7) SPECIAL MONTHLY PENSION - HOUSEBOUND

A veteran will qualify for the housebound rate if he or she has a single disability rated as permanently 100 percent disabling and (a) has additional disabilities rated 60 percent or more or; (b) is permanently housebound but does not qualify for aid and attendance. A veteran will be considered “permanently housebound” when he or she is substantially confined to the house (ward or clinical areas, if hospitalized) or immediate premises due to a disability which it is reasonably certain will remain throughout his or her lifetime.

(8) CORPUS OF THE ESTATE - NET WORTH

This is the net value of all real estate and personal property owned by the claimant, except his or her home, furnishings, and automobile. Public Law 95-588, Improved Pension, provides for the denial or discontinuance of pension to a veteran when the corpus of estate of the veteran and the veteran’s spouse is a such that under all circumstances, including consideration of the annual income of the veteran, the veteran’s spouse, and the veteran’s children, it is reasonable that some part of the corpus of such estate be used for the veteran’s maintenance. There is no specific dollar limitation. (38 §CFR 3.274: http://www.gpo.gov/fdsys/pkg/CFR-2011-title38-vol1/pdf/CFR-2011-title38-vol1- sec3-274.pdf ) However, if a claimant has an estate of $80,000 or greater, development action will be taken by adjudication to determine if net worth is excessive and a bar to pension entitlement. To assist the VA in development, the claimant must complete VA Form 21-8049 and answer “net worth” questions.

The pension program is intended to afford beneficiaries a minimum level of security, and is not intended to protect substantial assets or build up the beneficiary’s estate for the benefit of heirs. If a claimant’s assets are large enough that the claimant could use these assets to pay living expenses for a reasonable period of time, net worth is considered a bar.

The underlying principles are set out in M21-1 MR V i 3 The previous link to pension information in the manual has been replaced with a pointer to http://www.knowva.ebenefits.va.gov/; links to the manual are contained therein.

Advocacy tip: It is very important that a claimant understand that a net worth bar to pension may be reconsidered in the future if and when net worth decreases.

(9) DETERMINATION WITH RESPECT TO ANNUAL INCOME

http://www.gpo.gov/fdsys/granule/USCODE-2011-title38/USCODE-2011-title38-partII-chap15- subchapII-other-dup1-sec1521/content-detail.html

Income and net worth limits for improved pension are spelled out in 38 USC 1521 and 1522. The income limits are adjusted periodically. The adjusted limits are published in the “Notices” section of the Federal Register, and are listed in Adjudication Manual M21-1, Part I, Appendix B. All of the veteran’s family income from all sources is counted, unless specifically excluded. Specific categories of countable income are discussed in 38 CFR § 3.271. Categories of excluded and/or excludable income are listed in

38 CFR § 3.272. In addition, an extensive (but not comprehensive) listing of specific sources of countable and non-countable income is contained in M21-1MR, Part V, Subpart i, Chapter 3, Table of Contents and M21-1MR, Part V, Subpart iii, Chapter 1, Section A. Medical and certain other expenses, paid by the veteran and/or family and not reimbursed from any source, may be deducted from otherwise countable income to reduce the levels used for determining pension rates payable. See Appendix E, page 209, for a listing of potential medical expenses.

Higher income limits apply if the veteran has dependents; however, the dependents’ incomes are then also counted, as well. In addition, higher income limits also apply if the veteran is housebound or in need of regular aid and attendance.

a. Public Law 95-588 provides generally that all income, regardless of source, of a veteran, the income of the veteran’s spouse and any child for whom pension is paid, shall be considered in determining the rate of pension. The following are either exceptions or offsets to income:

(1) Private or public welfare. (Exception)

(2) Expenses of last illness and burial of veteran, child or spouse of veteran and just debts of deceased veteran. (Offset to income)

(3) Reimbursement for all casualty losses as long as the payments do not exceed the greater of the fair market value or the reasonable replacement cost of the property involved at the time immediately preceding the loss. (Exception)

(4) Profits realized from the sale of non-business property. (Exception)

(5) Unreimbursed unusual medical expenses provided such expenses exceed 5 percent of the applicable maximum annual pension rate without consideration of the aid and attendance or housebound rate. (Offset to income, see medical expenses sheet module 21 for examples of unusual medical expenses.)

(6) Amounts in joint accounts in bank acquired by reason of death or other owner. (Exception)

(7) Amounts equal to tuition, fees, books and materials paid by veterans or surviving spouses for education or vocational rehabilitation. Also, if in need of aid and attendance, un-reimbursed unusual transportation expenses in connection with such courses. (Offset to income)

• Post-secondary educational expenses, including tuition, fees, books, and materials paid by a child not to exceed the amount of the child’s earned income. (Offset to income)

• A child’s earned income not exceeding the amount specified as the 38 CFR 3.272(j)(1) exclusion in the Improved Disability Pension rate chart in M21-1, Part 1 Appendix B.

b. Net worth or corpus of estate of both the veteran and his/her spouse will be considered by VA in determining veteran’s entitlement to receive pension.

(10 ) AMOUNT OF PENSION

(See Pension Rate Tables, Appendix V, page 279 and following) or: http://www.vba.va.gov/bln/21/rates/pen01.htm

http://benefits.va.gov/pension/rates.asp

http://benefits.va.gov/PENSION/current_rates_veteran_pen.asp

http://benefits.va.gov/PENSION/current_rates_survivor_pen.asp

(11) PAYMENT OF PENSION DURING CONFINEMENT IN PENAL INSTITUTIONS (38 USC §505 AND 38 CFR §3.666)

Pension may not be paid to or for any person who has been imprisoned in a federal, state, or local penal institution as a result of conviction of a felony or misdemeanor, for any period beginning 61 days after imprisonment begins and ending when imprisonment ends. “This is interpreted as requiring that any person who is incarcerated for more than 60 days for conviction of a crime must be removed form a pension award, regardless of whether the incarcerated person is the beneficiary or a dependent of the beneficiary. This can be particularly significant when the incarcerated person is the dependent of a veteran receiving pension, and the family income is such that the dependent’s continued inclusion on the award is necessary for the veteran to remain within the applicable income limits. See, http://www.warms.vba.va.gov/052407.html (Go to the Pension drop down, then the Rates drop down from there)

However, if the veteran continues to be eligible except for the provisions of this paragraph, VA may pay to the spouse or children the rate payable under the death pension law based on their countable income or the rate which the veteran was receiving at the time of imprisonment, whichever is less. (M21-1, Part IV, par. 25.04 and 26.04)

CHAPTER 6 DEPENDENCY and INDEMNITY COMPENSATION

Title 38, U.S. Code, Chapter 13 38 Code of Federal Regulations, Part 3, particularly §3.312 Adjudication Manual 21-1, Part 1, Appendix B; Part IV Adjudication Manual M21-1MR (Manual Rewrite), Part 4, Subpart III; Part 5; Part 8. VA Pamphlet 80-04-01 Federal Benefits for Veterans and Dependents http://www.va.gov/survivors/ [please note the links on that page]

There are two types of DIC benefits. The DIC benefit for surviving spouses and children, and the DIC-Parent benefit which is income based.

Summary:

Dependency and Indemnity Compensation (DIC) is the primary monthly monetary benefit payable to the surviving dependents of a deceased veteran, and is the equivalent benefit to disability compensation for veterans. Although it is usually a service-connected benefit, DIC may also be authorized for certain nonservice-connected death, as well. There is no minimum active duty service requirement for DIC claims; however, there may be a 90-day length of service requirement if the cause of death was a chronic disease (as defined, see 38 CFR §§ 3.307(a)(1) and 3.309(a)) and the issue was not addressed during the veteran’s lifetime.

As with disability compensation for a veteran, DIC for a surviving spouse and/or children is not income- based. It is the benefit payable if the veteran died while on active duty, not due to willful misconduct; or, when death was after service, if a service-connected disability either directly caused, or contributed substantially to and materially hastened, the veteran’s death. It is not required that service connection has been established prior to the veteran’s death for the condition which caused or contributed to death. The rules and procedures for establishing service connection for a veteran’s death are essentially similar to those for establishing a service-connected disability for a living veteran, with due consideration of the finality of the evidence in death claim.

Since 1978, DIC has been payable as if the death were service-connected when a veteran who has been rated totally disabled from service-connected causes (whether 100% or by reason of individual unemployability) for ten continuous years or more at the time of death and dies from any cause other than willful misconduct. Note: payment of DIC under this provision did not include entitlement to the (higher)service-connected burial benefit; that was changed in 2013, and there is no time limit for application for the additional benefit. See the summary of Fast Letter 13-04 on the next page and Chapter 9, page 98 for additional information.

If the veteran was out of service less than ten years, DIC is payable if a total disability rating was in effect for a period of at least five continuous years, from the date the veteran left service to the date of death.

As of November 30, 1999, DIC is payable to the surviving spouse and/or child of a former prisoner of war who was rated totally disabled from service-connected causes for at least one year at the time of death and who died from any cause (other than willful misconduct) after September 30, 1999. [38USC §1318]

Finally, DIC is also payable as if the death were service-connected, if the veteran dies as a result of VA examination, hospital care, medical and surgical treatment, Vocational Rehabilitation, or, since November 1, 2001 a program of Compensated Work Therapy under 38 USC §1718, or if a disability arising from such circumstances either directly causes, or contributes substantially to and materially hastens, the veteran’s death. In this case, however, DIC is the ONLY benefit available: there are no ancillary benefits such as Loan Guaranty or education assistance. Again, the rules and procedures for establishing a qualifying compensable event are similar to those for a living veteran. [38USC §1151]

On March 22, 2013, VA released Fast Letter13-04(now incorporated in the VA manual). The stated purposed of that letter was to ensure timely delivery of benefits to vulnerable survivors who have an immediate need for supplemental income following the death of a Veteran. Pension and Fiduciary (P&F) Service reviewed the current policies and procedures applicable to DIC claims and determined that some are obstacles to timely delivery of benefits to eligible survivors. and that eliminating certain redundant development actions and performing limited screening would expedite processing of some DIC claims. VA employees were instructed that generally they should Screen for evidence of SC w/o file. If SC disability is principle/contributory cause of death grant DIC If cause of death is a presumptive and vet meets presumptive criteria, grant DIC. If vet rated P&T continuously for a disability/IU for 10/5/1 years prior to death grant DIC w/o development as to cause of death Concede dependency when VA records as of the date of the Veteran's death establishes the survivor's relationship with the deceased Veteran Claimant entitled to DIC under section 1318 is also entitled to service-connected burial benefits Grant DEA when DIC granted under section1318 Grant CHAMPVA when DIC granted under section 1318.

DIC rates payable for a surviving spouse and/or children are dependent on a number of factors, including when the veteran died and the number and status of dependent children, if any. If the veteran died on or after January 1, 1993, there is a basic rate payable for the surviving spouse, plus an enhanced rate if the veteran has been rated totally disabled (or could have been so rated, if it was not done while veteran was alive) for eight continuous years or more at the time of death. However, the enhanced rate is not payable if the spouse was not married to the veteran for the entire eight-year period (or if the veteran had not been out of service for eight years at the time of death). If the veteran died before January, 1993, the rate for the surviving spouse is based on the highest pay grade attained by the veteran on active duty or the basic/enhanced described above, whichever is the greater. In both cases, additional amounts are payable for the veteran’s eligible children. Additional amounts are also payable to a surviving spouse who is housebound or in need of regular aid and attendance, as set out in 38 CFR § 3.351. Beginning January 1, 2005, a surviving spouse with one or more children under age 18 will be paid an additional $250 per month for a transitional period of 24 months from the date entitlement to DIC begins or until the last child reaches age 18, whichever occurs first. This amount is in addition to any other DIC rates payable to the surviving spouse.

If there is an eligible surviving spouse, the veteran’s minor children are considered to be additional dependents on the spouse’s award. If the children are in the spouse’s custody, they are included on the

spouse’s basic award. A child not in the spouse’s custody will be paid his or her share of DIC on a separate ward. Regardless of custody, each child is permanently removed as a dependent from the spouse’s award upon reaching age 18. If there is no eligible surviving spouse, there are specified rates for the veteran’s children, in equal shares, up to the time of each child’s 18th birthday.

Upon reaching age 18, each child attains independent entitlement to DIC without regard to whether there is an eligible surviving spouse. DIC may only be paid to or for a child after age 18 if the child is attending an approved educational institution or is determined to be permanently incapable of self- support (helpless). DIC for school attendance may not be paid concurrently with Dependents’ Education Assistance under 38 USC, Chapter 35; however, if the child has been found to be “helpless,” there is no bar to concurrent payment, since in this case the DIC is not because of school attendance. All of the various DIC rates are set out Appendix X, page 265 and: http://benefits.va.gov/Compensation/current_rates_dic.asp

If the veteran was entitled to military retired pay and had contributed to the Survivor Benefits Plan (SBP) during his or her lifetime, the surviving spouse may not be concurrently paid both DIC and full amount of SBP. If the SBP is more than the DIC rate, the SBP is reduced by an amount equal to the DIC rate. If the DIC rate is greater then the SBP, the SBP is discontinued and any unpaid amounts remaining are refunded to the surviving spouse. These rules do not apply to SBP for children--- payment of DIC to or for a child does not affect any SBP payable.

An eligible surviving spouse may simultaneously be paid both DIC and Dependents’ Education Assistance under 38 USC, Chapter 35. When DIC has been (or will be) awarded under either 38 USC §1318 or 38 USC §1151, if any beneficiary is awarded any amount from a judicial proceeding, settlement, or compromise by reason of the veteran’s death, DIC payments to or for that beneficiary must be withheld until the full amount of such award has been recovered. This does not apply to Social Security or Workman’s Compensation benefits, even though they may have been awarded by judicial proceeding.

DIC is payable for a veteran’s surviving parent(s) if the veteran’s death is service-connected or is compensable under 38 USC §1151. There is no eligibility for DIC for parents under 38 §USC 1318. Parents’ DIC is income-based---the income limits are spelled out in 38 USC §1315. The income limits are adjusted periodically; the adjusted limits are publishing in the “Notices” section of the Federal Register, and are listed in Adjudication Manual M 21-1, Appendix B. All of the parents’ family income from all sources is counted, unless specifically excluded. Note—DIC claims from surviving dependent parents of veterans who die while on active duty are under the initial jurisdiction of VAROIC Philadelphia, Pennsylvania; once the award is running, jurisdiction transfers to the Pension Maintenance Center (PMC) for the parent’s address.

Specific categories of countable and excludable income are discussed in 38 CFR §§ 3.260 and 3.261. Categories of excluded and/or excludable income are also discussed in 38 CFR §3.362.

More complete information is given in M21-1MR, Part V, Subpart i, Chapter 3, Section D. and M21-1MR, Part V, Subpart iii, Chapter 1, Section G. Medical and certain other expenses, paid by the parent and/or family and not reimbursed from any source, may be deducted from otherwise countable income to reduce the levels used for determining pension rates payable. See Appendix E, page 209 for a list of potential medical expenses.

A parent’s marital status is not a factor in eligibility, but does affect the income limit(s) applicable: there are different income limits according to whether one or both parents survive, and if both, whether they are married to each other or have or have not remarried. Net worth is not a factor for parents’ DIC.

Additional amounts are also payable if one of both parents are in need of aid and attendance. If the amount of the total annual benefit payable is less than 4% of the maximum rate, payments will be made semi-annually unless monthly payments are specifically requested. When DIC has been (or will be) awarded under 38 USC §1151, if either parent is awarded any amount from a judicial proceeding, settlement, or compromise by reason of the veteran’s death, DIC payments to or for that parent must be withheld until the full amount of such award has been recovered.

It is not required that a dependent have been recognized prior to the veteran’s death. However, there are time limits for recognition of a surviving spouse for benefits purposes: in general, when the veteran dies after service, the surviving spouse must have been married to the veteran for at least one year prior to the veteran’s death, or for any length of time if a child was born of the marriage or was born to them before the marriage. In addition, for service-connected deaths only, the marriage may have been for any length of time if it took place within fifteen (15) years after the end of the period of service during which the condition which caused or contributed to the veteran’s death was incurred or aggravated. (For example, for a Vietnam-era veteran, the marriage would have to have been before May 7, 1990, fifteen years after the end of the Vietnam Era.) Finally, there are no length of marriage requirements if the marriage occurred while the veteran was in service, or before service, or if a married servicemember dies while on active duty.

Remarriage of a surviving spouse generally terminates eligibility for DIC. Eligibility may be re- established if the remarriage is terminated by death, divorce, or annulment. Since January 1, 2004, a surviving spouse age 57 or older who is eligible for DIC and other benefits as a surviving spouse and who remarries will not lose any eligibility because of such remarriage.

A claim for DIC by a surviving spouse and/or children is ALWAYS also a claim for any available accrued benefits, as well as a claim for death pension for a surviving spouse and/or children if DIC is denied, if the service and income requirements are satisfied. In general, if a surviving spouse qualifies for both DIC and death pension, DIC will be awarded as the greater benefit. However, the surviving spouse may elect to receive death pension instead, if it is to the spouse’s advantage, even though it is a lesser benefit.

Accrued benefits includes any claim, formal, informal, or inferred, for a recurring benefit that was pending and unresolved at the time of the veteran’s death; or any recurring benefit that was due but not paid at the time of the veteran’s death, such as when a claim was approved but the veteran died before the initial check was issued, or there were unnegotiated or non-negotiated checks.

If the accrued benefit is based upon a claim pending at the time of the veteran’s death, all of the evidence necessary for a favorable decision must have been in file on the date of the veteran’s death. For this purpose, the term “in file” means the evidence was in VA, in VA’s possession, even if it was not physically in the veteran’s claims file on that date.

If more than one class of dependents applies, the order of precedence for accrued benefits is (1) surviving spouse; (2) children (in equal shares); and (3) parents (in equal shares). If there are no eligible (or potentially eligible) survivors, any accrued amounts available are only payable as reimbursement to the person or entity who paid the costs of the veteran’s final illness, funeral and burial. Previously,

payment of retroactive benefits as accrued was limited to two years prior to the month of death; Public Law 108-183 removed this restriction for veterans who died on or after December 16, 2003.

Effective dates for Dependency and Indemnity Compensation

For claims based on death in service, the effective will be the first day of the month in which the death actually or was presumed to have occurred.

If the death occurred after service and the claim is received within one year of the Veteran's death, the effective date will be the first day of the month in which the Veterans died.

If the death occurred after service and the claim is received after one year of the Veteran's death, the effective date is the date of receipt of claim.

If DIC is awareded related to Death Due to Hospitalization First day of month in which the Veteran's death occurred, if a claim is received within 1 year following the date of death; otherwise, the date the claim was received.

Advocacy Tip: The 21-534 can be an intimidating form. It appears to be very complicated, and, as a practical matter, we are dealing with claimants at what is a difficult time for them. Reading the instructions carefully, noting the parts that do not need to be completed in an individual case, and proceeding patiently and slowly can be extremely helpful.

FORMS FOR DIC VA Form 21-22 - Appointment of Veterans Service Organization as Claimant's Representative VA Form 21-534 - Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) VA Form 21-674 - Request for Approval of School Attendance (Child age 18 and older not electing DEA) VA Form 21-686c – Declaration of Status of Dependents (If additional dependency listing needed) VA Form 21-4138 - Statement in Support of Claim (To relate any facts or comments)

FORMS FOR PARENT’S DIC VA Form 21-22 - Appointment of Veterans Service Organization as Claimant's Representative VA Form 21-535 - Application for Dependency and Indemnity Compensation by Parent(s) VA Form 21-686c – Declaration of Status of Dependents (If additional dependency listing needed)

DOCUMENTS FOR DIC Marriage Certificate (current spouse)(may already be of record in veteran’s file) Divorce Decrees or Death Certificates (previous spouses) )(may already be of record in veteran’s file) Certified DD-214 (If claims number not established) Death Certificate of Veteran Birth Certificate of Dependents (or Adoption Papers) )(may already be of record in veteran’s file) Terminal Hospital Report and/or Medical Evidence to establish well-grounded claim for service connected death Social Security Numbers)(may already be of record in veteran’s file)

DOCUMENTS FOR PARENT’S DIC Certified DD-214 (If claim number not established) Death certificate of veteran Birth Certificate of veteran (listing names of parents) Marriage Certificate Divorce Decrees or Death Certificates (previous spouses) for claimant and dependent spouse Social Security Award Letters for claimant and dependent spouse Proof of Other Income Terminal Hospital Report and/or medical evidence to establish well-grounded claim for service- connected death

REOPENED DIC CLAIM VA Form 21-534 [note; prior to March 24, 2015 a reopened DIC or Death Pension claim could be filed on a VA Form 21-4138; that form will no longer be accepted as a formal claim—if a 4138 is submitted VA should send the claimant a 21-534]

CHAPTER 7 DEATH PENSION References:

Title 38, U.S. Code, Chapter 15. 38 Code of Federal Regulations, Part 3. Adjudication Manual M21-1MR (Manual Rewrite), Parts 5 and 8. http://www1.va.gov/opa/publications/benefits_book/2013_Federal_Benefits_for_Veterans_English.pdf http://benefits.va.gov/pension/spousepen.asp http://www.vba.va.gov/bln/dependents/index.htm Summary:

Death pension is the income supplement program for a low-income surviving spouse and/or children of a veteran. The basic requirements are: wartime service, income and net worth within specified limits, and the veteran’s death was not related to service.

As set out above in the chapter on non service connected disability pension, the VA currently maintains three death pension programs:

“Old law pension,” also known as “protected pension”; “Section 306 pension,” also known as “86-211 pension”; and “Improved pension,” which is the current pension program.

As shown above in the chapter on veterans (live)pension, the percentage of recipients of the two prior pension programs decreases annually. Improved pension began on January 1, 1979. All persons who were in receipt of pension under either of the prior pension laws, or who had a pension claim pending on that date, are protected under those laws for as long as they continue to meet the income and net worth limits of their program. If the pension award is terminated for any reason, the claimant may only reopen the claim only under the current (improved) pension program. In addition, since the claimant’s status is in effect frozen, he or she may not claim additional pension because of being housebound or being in need of regular aid and attendance, unless he or she elects improved pension.

Qualifying wartime service for pension purposes means that the veteran served on active duty for at least 90 consecutive days, at least one day of which was during a wartime period; or if less than 90 days, was discharged because of disability for which service connection could be established without resort to any presumptive provisions of the law; or had a disability for which service connection could be established which would have warranted a discharge for disability; or had two or more separate periods of active service for an aggregate of 90 days or more during more than one period of war. For veterans whose wartime service was Gulf War Era (beginning August 2, 1990), minimum active service requirements (24 consecutive months or the full period for which called to active duty, whichever is less) apply: the veteran must have met either the minimum active service requirement or the general qualifying service requirement above, whichever was the greater.

In addition to the above, service requirements for death pension will be met regardless of the length of the veteran’s service if at the time of death the veteran was receiving, or was entitled to receive,

compensation or retired pay for a service-connected disability incurred or aggravated during a wartime period. Finally, if a veteran dies while on active duty under circumstances precluding payment of service-connected benefits (e.g, the death was not in line of duty, or was the result of willful misconduct), death pension may be payable to the surviving spouse and/or children provided the veteran had served honorably for at least two years, any part of which was during a wartime period.

Income and net worth limits for improved pension are spelled out in 38 U.S. Code, Sections 1541, 1542, and 1543. The income limits are adjusted periodically. The adjusted limits are published in the “Notices” section of the Federal Register. Current income limits are shown in Appendix C on page 296, and online: http://www.vba.va.gov/bln/21/rates/pen02.htm.

All family income from all sources is counted, unless specifically excluded. Specific categories of countable income are discussed in 38 CFR § 3.271. Categories of excluded and/or excludable income are listed in 38 CFR §3.272. In addition, an extensive (but not comprehensive) listing of specific sources of countable and non-countable income is contained in M21-1MR, Part V, Subpart i, Chapter 3. Medical and certain other expenses, paid by the surviving spouse and/or family members and not reimbursed from any source, may be deducted from otherwise countable income to reduce the levels determining pension rates payable. See M21-1MR, Part V, Subpart i, Chapter 3, Section D for further information on deductible expenses.

Higher income limits apply if the surviving spouse has children in custody; however, the children’s incomes are also counted, as well. In addition, higher income limits also apply if the surviving spouse is housebound or in need of regular aid and attendance.

A child beyond age 18 who was in the custody of an eligible surviving spouse before reaching age 18 will remain on the spouse’s award as an additional dependent if the child is attending school (up to age 23) or was determined to be permanently incapable of self-support (helpless) prior to age 18.

In this circumstance, the child has no independent entitlement to pension, even if he or she is living elsewhere while attending school. A child not in the custody of the surviving spouse has separate entitlement, and that child’s income and net worth are counted separately from the surviving spouse and any children in the spouse’s custody. If there is no eligible surviving spouse, the income for each child is counted according to the formulas set out in 38 CFR § 3.24, and payment made as appropriate to or for each eligible child.

Pension is not payable to a surviving spouse and/or a dependent child if the spouse’s or child’s net worth is of such size that it would be reasonable for it to be consumed for the maintenance of that beneficiary. This is determined on a case-by-case basis, taking into account such factors as the nature, source(s), and amount(s) of income and assets; the nature and amount(s) of debts and expenses; the number and age(s) of any children; anticipated educational expenses for such children; the spouse’s and/or children’s state of health; and the anticipated life expectancy of the surviving spouse and/or children (where appropriate). In general, net worth is not a factor for consideration unless it is greater than $80,000.

To determine the actual rate(s) payable, the surviving spouse’s and/or children’s total annual countable family income (after exclusions and deductions) is subtracted from the applicable income limit and the difference divided into twelve equal payments. If the total annual amount payable would be less than 4% of the maximum annual rate, payments may be made quarterly, semiannually, or even annually, unless the claimant specifically requests monthly payments.

As set out in the chapter on non service connected pension for veterans, it is important that the claimant understand that she/he has the option to reopen a denied pension claim in the future if her/his countable income should fall below the pension income limits, due to increased medical expenses, reduced income, or a combination of those.

A claim for death pension by any class of dependent is ALWAYS a claim for DIC also, as well as a claim for any available accrued benefits. In general, if a surviving spouse qualifies for both DIC and death pension, DIC will be awarded as the greater benefit. However, a surviving spouse may elect to receive death pension instead if it is to the spouse’s advantage, even though it is a lesser benefit.

Accrued benefits includes any claim (whether formal, informal, or inferred) for a recurring benefit that was pending and unresolved at the time of the veteran’s death; or any recurring benefit that was due but not paid at the time of the veteran’s death, such as when a claim was approved but the veteran died before the initial check was issued; or there were unnegotiated or non-negotiated checks. If the accrued benefit is based upon a claim pending at the time of the veteran’s death, all of the evidence necessary for a favorable decision must have been in file on the date of the veteran’s death. For this purpose, the term “in file” means the evidence was in the possession of the Department of Veterans Affairs, even if it was not physically in the veteran’s claims file on that date.

Since November 1, 1990, the remarriage of a surviving spouse is a permanent bar to further payment of death pension. The only exception is if the requirements of 38 CFR § 3.55(a)(1) are met: the remarriage is void, or it has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion.

How to Apply To apply for Survivors Pension, download and complete VA Form 21-534EZ, “Application for DIC, Death Pension, and/or Accrued Benefits” and mail it to the local regional benefit office. Your claimant, with your help, can locate your local regional benefit office using the VA Facility Locator. In some circumstances is may be easier to visit the local regional benefit office and turn in your application for processing. As noted in Chapter 6 on claims for DIC, the 21-534 can be an intimidating form, and we are dealing with claimants at what is a difficult time for them. Reading the instructions carefully, noting the parts that do not need to be completed in an individual case, and proceeding patiently and slowly can be extremely helpful. Also, as noted in Chapter 6, a claim for death pension is also a claim for any accrued benefits that may be due.

The completed application and any copies of other documents to the VA regional office that serves the claimant’s area of residence.

Historical Note: from October 1984 until December 2004 the effective date of death pension was first of the month of the veteran’s death if the claim was filed within 45 days of the veteran’s death; if not filed

88 within the first 45 days, the effective date was the date VA received the claim. Knowledge of this temporary change in effective dates may be useful in reviewing an older case.

FORMS

ORIGINAL CLAIM VA Form 21-22 –Appointment of Veterans Service Organization as claimant’s representative VA Form 21-534 –Application for widow’s death pension, DIC, or accrued benefit VA Form 21-534 EZ http://www.vba.va.gov/pubs/forms/VBA-21-534EZ-ARE.pdf Certified DD 214, If no verified service on record Veteran’s Death Certificate, unless death in VA Facility Social Security numbers of all dependents Written verification of income Itemized funeral bill Paid receipt, if paid Other last illness expenses Optional documents to submit: Marriage Certificate Divorce Decrees from all previous marriages for both veteran and spouse If applicable, death certificate of previous marriages for both veteran and spouse Birth certificates for all minor children and children over 18 in school If child over 18, submit VA Form 21-674 (school attendance form) for each child over 18

REOPEN WIDOW’S DEATH PENSION

VA Form 21-534 [note; prior to March 24, 2015 a reopened DIC or Death Pension claim could be filed on a VA Form 21-4138; that form will no longer be accepted as a formal claim—if a 4138 is submitted VA should send the claimant a 21-534] Appropriate EVR Verification of Income

CHAPTER 8

ELIGIBILITY VERIFICATION REPORTS (EVR) Deductible Expenses

References:

Title 38, U.S. Code, Chapters 13 and 15 38 Code of Federal Regulations §§ 3.3–3.277; 3.652–3.661 http://www.benefits.va.gov/BENEFITS/factsheets.asp

http://benefits.va.gov/stpaul/Pension_Mgt_Cen.asp

http://www.benefits.va.gov/WARMS/M21_1MR5.asp#a

M21-1, Part V, Subpart i, Chapter 3, Section B - Income and Net Worth Development Forms and Acceptable Statements

Summary:

I. Eligibility Verification Report (EVRs):

In December 2012 the Department of Veterans Affairs (VA) announced that veterans would no longer have to complete an annual Eligibility Verification Report (EVR). Completion of an EVR had been required annually of beneficiaries to ensure pension benefits are received. Now, VA works with with the Internal Revenue Service (IRS) and the Social Security Administration (SSA) to verify continued eligibility for pension benefits.

Although the form is no longer mailed out on a regular basis, the form is available online, and is generally the most efficient way to report changes in income and/or changes in deductible expenses. Assistance with the EVR form and the mechanics of pension processing is one of the areas that comprises a large portion of service officer work. Because much of routine income verification is now handled through automated exchange of information between federal agencies, most service officers will assist with far fewer EVRs than in past years. However, the remaining forms will generally be needed in more complex cases, and will require a high degree of knowledge and patience to assist claimants.

Department of Veterans Affairs (VA) pension for a veteran, surviving spouse, or child is an income- based benefit, as is Dependency and Indemnity Compensation (DIC) for the veteran’s dependent parents. This means that the claimant(s) must show that they meet the prescribed income limits to establish both initial eligibility for payment as well as eligibility for continued payment. This is generally first accomplished by the income and net worth information portions of the initial applications (VA Forms 21-526, 21-527, 21-534, or 21-535, as applicable).

Beneficiaries not receiving an EVR should receive: a letter informing them that any change in income or dependency status must be reported to the VA, and VA Form 21-8416, Medical Expense Report. Exception: VA Form 21-8416 is not sent to EVR-exempt Old Law and Section 306 beneficiaries.

We strongly recommend reviewing the EVR instructions, currently online as VA Form 21-0510, and possibly printing out a copy for ready reference. A significant number of pension recipients require assistance in completion and return of the form. http://www.vba.va.gov/pubs/forms/VBA-21-0510- ARE.pdf

Persons in receipt of old-law (protected) pension or Section 306 pension will not routinely be sent an EVR, unless there is some indication of a significant change in that person’s income or dependency status and the information is needed to determine continued eligibility to payment under that program. Persons in receipt of improved pension or parents’ DIC may not be sent an EVR if they consistently report no income from any source (and there is no other information to the contrary), or if their only income is from Social Security or other government source, which may be verified by computer match. These individuals may submit a VA Form 21-8416 Medical Expense Report to reduce countable annual income. Please see the link to the VA Benefits Report on page 69 above for statistics regarding the number of beneficiaries on the various pension programs.

As noted above, the information requested on an EVR is specific to that claimant’s program. All EVRs ask for addresses and Social Security numbers of claimants and dependents, and also marital and dependent status (this information may be pre-printed). All EVRs ask for gross monthly amounts of all recurring income (such as Social Security) and annual amounts of other or non-recurring income, both received during the current year and expected during the coming year. All EVRs also ask if there is any change in the income received or expected, along with sources or amounts (other than cost of living increases). All EVRs except for children receiving death pension ask if the veteran or beneficiary is a patient in a nursing home (quite often, this will be the first indication that the veteran or beneficiary might be entitled to a higher rate because of need for aid and attendance). Section 306 pension and improved pension EVRs also ask for net worth information. Finally, EVRs for Section 306 pension and parents’ DIC provide space for listing family medical expenses paid during the current year.

Since the information on the EVR is required as a condition of continued eligibility for payment, there are strict time limits for returning the reports. The claimant is warned when the EVR is mailed that the report must be returned by a specified date or payments will be suspended. A follow-up reminder may be sent as a due process notice, reminding the claimant of the deadline for returning the EVR to avoid interruption of payments and possible overpayment. If there is still no response, the award is terminated without further notice, effective the end of the current calendar year for old-law and Section 306 pension cases, and effective the beginning of the current calendar year (or the beginning date of the award, whichever is later) for improved pension and parents’ DIC. If an award is terminated for failure to return the EVR, it may be resumed if evidence of entitlement is received within one year after the year for which the income and net worth (if applicable) was to be reported. If the evidence is received after that time limit, it is considered to be a new or reopened claim for payment purposes. Evidence to clear an overpayment resulting from failure to return an EVR may be submitted at any time, however.

Beginning in late 2001 VA consolidated all pension and parents’ DIC operations into three locations: Philadelphia, Pennsylvania, Milwaukee, Wisconsin, and St. Paul, Minnesota. These three Pension Maintenance Centers (PMC) handle operations to include mailing and processing of EVRs for all improved disability and death pension and all parents’ DIC cases. As a matter of information, these PMCs are now handling all original pension claims. The addresses and jurisdictions of the three Centers are shown below (page 8-6). There is a single toll-free telephone number for all three PMCs, 1-877-294- 6380; incoming calls will be automatically switched to the proper center, in the same manner as for the basic VA information number (1-800-827-1000).

Most EVRs from now on will be issued by the PMC of primary responsibility, but some may still be sent out by a different RO handling a particular claim (see EVR office listing later in this section). It is extremely important that careful attention be paid to the return address on the EVR—if an EVR issued by a PMC is returned to the wrong office, the automatic control for its return set by the PMC will not be cleared, and the beneficiary’s payments will be interrupted. If a beneficiary comes in to the office for help with an EVR issued by a PMC and the deadline for its return is too near to mail the EVR, the PMCs will accept a fax copy of the EVR provided the original EVR is then mailed to the PMC as a confirming copy. The PMC fax numbers are:

Philadelphia Milwaukee St. Paul

1-215-381-3777 1-414-902-9401 1-612-970-5724 1-414-902-5633

2. Deductible Expenses:

Income from all sources is considered for all of the pension programs and for parents’ DIC, unless it is specifically excluded. It is important that all income be reported, and VA will make the determination on whether or not it is to be excluded. However, certain expenses may be deducted from income for VA purposes (IVAP), either to establish that income continues to meet applicable limits (for old-law and Section 306 pension), or to establish entitlement to a greater rate of payment (for improved pension and parents’ DIC).

Old-law pension: If the veteran received benefits for permanent and total disability from any source including Social Security Administration, Office of Federal Employees Compensation, Railroad Retirement Board, state workman’s compensation, commercial insurance, etc., then unreimbursed medical expenses paid each year which are related to the disability for which the veteran was retired may be allowed as continuing expenses to keep income within limits. Otherwise, deductible expenses are not a factor for old-law pension.

Section 306 pension: Unreimbursed medical expenses which exceed 5% of the total reported and countable family income may be deducted from the income for VA purposes (IVAP); this will not increase the pension rate payable, but may be used to keep the IVAP within the specified limits. If the space provided on the EVR is not sufficient for reporting such expenses, VA Form 21-8416, Medical Expense Report, should be completed. In addition, a deduction may be allowed for the amounts actually paid by a surviving spouse or child for the last illness, burial and just debts of the deceased veteran, or the amounts actually paid by a veteran, surviving spouse or child for the expenses of the last illness or burial of the veteran’s deceased spouse or child. Final expenses are deducted from IVAP on a dollar-for- dollar basis with no deductible, and are applied against the IVAP for the year(s) the expenses are actually paid by the beneficiary. Again, these will not increase the pension rates payable, but will only keep the IVAP within limits for the year(s) involved.

Improved pension: The theory is that at any given time the claimant’s income for VA purposes (IVAP) plus the rate of VA pension will establish a given level of income, the maximum annual pension rate (MAPR). To keep the program closer to the theory, certain expenses paid by a beneficiary are considered in determining the beneficiary’s IVAP. Most deductible expenses are deducted from the net countable income, although some expenses may only be deducted from specific income. Unreimbursed out-of-pocket unusual medical expenses, defined as exceeding 5% of the applicable MAPR, may be used to reduce a beneficiary’s IVAP for the year they are actually paid. These expenses may be for the

92 veteran or surviving spouse and any dependents, or for a relative who is not a dependent but who is a member of the beneficiary’s household.

Health insurance and/or Medicare premiums are allowable expenses; other medical expenses are considered on a case-by-case basis. Although most medical expenses are deducted from the IVAP retroactively for the year they are paid, certain expenses may be allowed prospectively and on an ongoing basis, such as the costs of nursing home care. A deduction may also be allowed for the unreimbursed final expenses of the veteran, spouse or child, which have been actually paid. Final expenses include the expenses of the last illness and burial, and for the veteran only, just debts. VA Form 21-8416, Medical Expense Report, should be completed for reporting such expenses.

A deduction may also be allowed for unreimbursed educational expenses of a veteran or surviving spouse, and with certain restrictions, a child. These include amounts paid for tuition, fees, books and necessary supplies. Transportation expenses related to school attendance may be deducted if the veteran or surviving spouse has been determined to be housebound or in need of aid and attendance, and such expenses exceed the amounts which would reasonably be incurred by a nondisabled person. For a child, educational expenses may be deducted only if the child has earned income which exceeds the amount excluded under 38 CFR § 3.272(j)(2), that is, the minimum earned income which would require that an income tax return be filed. The child must be taking a post-high school educational or vocational program; the deductible expenses include amounts paid for tuition, fees, books, and necessary supplies.

If a beneficiary has income from rental property or a business, the amounts of reasonable operating expenses, including the costs of supplies and interest payments on the property, but not depreciation, may be deducted from the gross income from that source to determine the net countable income. The value of the rental property or business is considered to be net worth. (VA Form 21-4185 – Report of Income from Property or Business – should accompany the Eligibility Verification Report (EVR))

If a beneficiary is awarded benefits (other than VA benefits) based on permanent and total disability or death, a one-time deduction from that award may be taken for the legal, medical, and other expenses incurred in securing the award. This includes awards from Social Security Administration, Office of Federal Employees Compensation, Railroad Retirement Board, state workman’s compensation, commercial insurance, and private lawsuits or settlements. After this one-time initial deduction, related ongoing medical expenses are deductible only as described above.

Parents’ DIC: Unreimbursed family medical expenses which exceed 5% of the total reported and countable family income may be deducted from the income for VA purposes (IVAP). Persons whose medical expenses are deductible include the parent; the parent’s spouse (whether or not this is the veteran’s other parent); minor or disabled children of the parent or spouse who are actual or constructive members of the parent’s household; and parent(s) of the parent or spouse, who are actual or constructive members of the parent’s household. If the space provided on the EVR is not sufficient for reporting such expenses, VA Form 21-8416, Medical Expense Report, should be completed.

The rules for determining the net income from a rental or other business are similar, but not identical, to the rules for improved pension. Since net worth is not a factor for parents’ DIC, the value of the rental property or business is not considered. Similarly, if a parent or parent’s spouse is awarded benefits (other than VA benefits) based on permanent and total disability or death, a one-time deduction from that award may be taken for the legal, medical, and other expenses incurred in securing the award. This includes awards from Social Security Administration, Office of Federal Employees Compensation, Railroad Retirement Board, state workman’s compensation, commercial insurance, and private lawsuits

or settlements. After this one-time initial deduction, related ongoing medical expenses are deductible only as described above.

3. Income and Expense Verification

Although VA does not normally require a beneficiary to document each and every amount and/or source of income or deductible expense listed on a pension or parents’ DIC claim or EVR (unless the information reported is inconsistent or otherwise suspect on its face), this does not mean that the information is accepted without some degree of confirmation. VA has several computer income- matching programs such as SHARE, which will automatically verify amounts paid under other Federal programs including Social Security, SSI, Railroad Retirement, Black Lung Compensation, Civil Service Retirement, etc., against the amounts as reported by the beneficiary. If there are discrepancies, the amounts reported by the matching program are considered to be authoritative, and will be the basis for any action or adjustment needed.

Since 1991 VA has also had a program of Income Verification Matching (IVM), which essentially matches unearned income from interest or dividends and earned income from wages or salary, as reported by the beneficiary to VA, to the same information as reported to the Internal Revenue Service (IRS) or to the Social Security Administration by the payers of such income. This is now administered by the Pension Maintenance Centers (PMC). If there are discrepancies between the reports, the beneficiary and payer will be required to explain and document the difference(s). If the discrepancy can not be satisfactorily explained or otherwise resolved, benefits will be reduced or terminated as appropriate.

Since IRS records are highly sensitive and confidential, they may not be used as the basis for acting on a beneficiary’s VA award unless and until both the beneficiary and the payer of the income in question have been given full opportunity to explain and correct any discrepancies shown. Even though the beneficiary has designated an accredited veterans service organization as his/her authorized representative for the VA claim, the representative may not view IRS-related material unless and until the beneficiary gives specific written permission, i.e., a new

VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, or designates an individual as representative. The designation of an individual or a veterans’ service organization as the beneficiary’s representative in an IVM case is only valid for five (5) years from the date the beneficiary signs the Form 21-22. If the beneficiary is married, then separate authorizations of representation must be signed by each the beneficiary and the beneficiary’s spouse. Disclosure of IRS- related material to the designated representative is highly restricted—such materials may only be disclosed for the purpose of determining eligibility for and/or extent of entitlement to compensation, pension or DIC.

VA is required to annually audit about 4% of pension and parents’ DIC cases nationwide, chosen randomly, where deductions of unreimbursed medical expenses paid are, or have been, a factor in the rates being paid. The PMC will request the beneficiary to provide documentation, including copies of receipted bills, for each claimed unreimbursed medical expense paid, either during the EVR period or for the past calendar year (if different). If the claimant is not able to provide satisfactory documentation that all of the claimed expenses were in fact paid, the PMC will retroactively adjust the award so that the rate(s) payable will not include the claimed deductible expenses. This will create an overpayment in the account. Established ongoing expenses such as Medicare premiums are not included in this audit.

Addresses and Jurisdictions of Pension Maintenance Centers (PMCs):

Philadelphia Milwaukee St. Paul

Department of Veterans Affairs Milwaukee VA Pension Center St. Paul VA Pension Center Pension Maintenance Center P.O. Box 342000 P.O. Box 11000 P.O. Box 42000 Milwaukee, WI 53234-2000 St. Paul, MN 55111-0000 Philadelphia, PA 19101

Philadelphia Milwaukee St. Paul Atlanta Chicago Albuquerque Baltimore Cleveland Anchorage Boston Detroit Boise Buffalo Indianapolis Denver Columbia Jackson Des Moines Hartford Little Rock Fargo Huntington Louisville Ft. Harrison Manchester Montgomery Honolulu Newark Nashville Houston New York New Orleans Lincoln Pittsburgh St. Louis Los Angeles Providence Manila Roanoke Muskogee St. Petersburg Oakland San Juan Phoenix Togus Portland White River Junction Reno Wilmington Salt Lake City Winston-Salem San Diego WRO Seattle Sioux Falls Waco

If a claimant does not receive an EVR form, but receives a letter with VA Form 21-8416 attached, they may complete and return VA Form 21-8416 to report unreimbursed medical expenses. There is no requirement to report income. However, a statement on the 21-8416, or on an attached VA Form 21- 4138, indicating “no change in income” or “no change in dependency status” is recommended.

NOTES

Suggestions to help EVR Processing:

-- Complete all items on both sides of the EVR. Where an item does not apply, write NONE or N/A.

-- Beneficiaries who report interest or dividend income must report the source of the dividends or interest as net worth.

-- Beneficiaries who report interest-bearing assets of $5,000.00 or more should be sure to report interest or dividend income. If no interest is reported, VA will count 3%.

-- DO NOT mark over bar coded area.

-- If the claimant’s address has been changed, clearly indicate the new address on the EVR.

-- Review all pre-printed information on the EVR for accuracy. When showing a change in Social Security, enter the gross amount as the EVR does not have a separate block for the Medicare deduction. When showing other retirement income, enter gross totals. Please insure the claimant’s and spouse’s Social Security numbers are correct.

-- When completing VA Form 21-8416, please total all expenses reported.

-- For beneficiaries submitting VA Form 21-8416 who were receiving income-based benefits on or before January 1, they should report un-reimbursed medical expenses from Jan. 1 through December 31 of previous calendar year.

-- For beneficiaries submitting VA Form 21-8416 who were receiving income-based benefits prior to August 31, should report the un-reimbursed medical expenses from the effective date of their application through December 31. Example: Veteran applied for Improved Pension on March 14, 2008. He was awarded benefits in July 2008 with an effective date of March 14, 2008 and a payment date of April 1, 2008. This veteran should submit a completed VA Form 21-8416 for the period March 14, 2008 through December 31, 2008.

-- Be certain the EVR is SIGNED by the claimant. If signed by a mark, the appropriate certification must be attached. If the claimant is incompetent for VA purposes, the EVR must be signed by the VA appointed payee.

-- When reporting Nursing Home status, please show the complete mailing address.

Again, feel free to review the instructions: http://www.vba.va.gov/pubs/forms/VBA-21-0510-ARE.pdf

Reporting Medical Expenses

EXAMPLE Initial Periods

Beneficiaries who became entitled after August 2010, and did not receive an EVR or 21-8416 during 2011 should report their un-reimbursed medical expenses paid during 2010, AFTER their date of entitlement to the end of the year, and their total 2011 medical expenses. These individuals must have their 2010 un-reimbursed medical expenses date stamped in the VA Regional Office No Later Than December 31, 2011. Example: One 8416 completed for 9/29/10 to 12/31/10 One 8416 completed for 1/1/11 to 12/31/11 Note: See Appendix E, page 308 for a list of potential medical expenses.

Running Awards

Beneficiaries who have running awards should report their un-reimbursed medical expenses from Jan. 1, 2011 through December 31, 2011. These individuals must have their 2011 un-reimbursed medical expenses date stamped in the VA Regional Office by December 31, 2012. If they have unreported calendar year 2010 medical expenses to report, they must be date stamped by December /31/2011.

Note: Medical expenses are counted for a full twelve-month period regardless of the length of the period during which they are reported.

FORMS

INCOME VERIFICATION REPORTS- (EVRs) Correct type of EVR: 21-0516-1 - #6 Veteran/Spouse/No children 21-0517-1 - #7 Veteran/Spouse with Children 21-0518-1 - #8 Surviving Spouse/ No Children 21-0519S-1 - #9S Surviving Spouse with Children 21-0519C-1 - #9C Child or Children 21-0514-1 - #4 Parent’s DIC Eligibility Verification Report 21-8416 - Medical Expense Report

All Income (for Correct Time Period)

All Unreimbursed Medical Expenses

All Paid Educational Expenses

Any Paid Final Expenses (for qualifying dependents)

CHAPTER 9 Burial Benefits Headstone, Presidential Memorial Certificate References:

Title 38, U. S. Code, Chapters 23 and 24 38 Code of Federal Regulations § 1.10; §§ 1.601–1.633; §§ 3.1600–3.1612. Adjudication Manual M21-1MR (Manual Rewrite), Part 7 http://www.cem.va.gov/ http://www.cem.va.gov/burial_benefits/ http://www.vba.va.gov/VBA/benefits/factsheets/burials/Burial.pdf (It may be useful to print out the burial factsheet for clients) http://www.cem.va.gov/hmm/index.asp VA Pamphlet 80-04-1 (Federal Benefits for Veterans and Dependents)

Advocacy note for new service officers: many funeral homes have sufficient experience with these claims, and have an interest in expediting payment, and can, therefore, be of material assistance to claimants and to you in navigating the process. Also, a VA regulation change in 2014 simplified the program to pay eligible survivors quickly and efficiently. Eligible surviving spouses of record are paid automatically upon notification of a Veteran’s death, without the need to submit a claim.

VA provides the following burial benefits and allowances: service-connected (SC) death burial allowance nonservice-connected (NSC) death burial allowance plot-interment allowance transportation allowance, and memorialization.

The memorialization benefit includes

Presidential Memorial Certificates (PMC) flags, and headstones and markers.

VA burial allowances are partial reimbursements of an eligible veteran's burial and funeral costs. When the cause of death is not service related, the reimbursements are generally described as two payments: (1) a burial and funeral expense allowance, and (2) a plot or interment allowance. A claimant may be eligible for a VA burial allowance if: • He/she paid for a veteran's burial or funeral, AND

• He/she has not been reimbursed by another government agency or some other source, such as the deceased veteran's employer, AND • the veteran was discharged under conditions other than dishonorable.

In addition, at least one of the following conditions must be met: • the veteran died because of a service-related disability, OR • the veteran was receiving VA pension or compensation at the time of death, OR • the veteran was entitled to receive VA pension or compensation, but decided not to reduce his/her military retirement or disability pay, OR • the veteran died while hospitalized by VA, or while receiving care under VA contract at a non-VA facility, OR • the veteran died while traveling under proper authorization and at VA expense to or from a specified place for the purpose of examination, treatment, or care, OR • the veteran had an original or reopened claim pending at the time of death and has been found entitled to compensation or pension from a date prior to the date or death, OR • the veteran died on or after October 9, 1996, while a patient at a VA-approved state nursing home.

If eligibility is based on a claim pending at the time of death, then the same rule applies as for claims for accrued benefits based on a pending claim at the time of death, namely that all of the evidence necessary for a favorable decision must have been in file (as defined) on the date of the veteran’s death.

There is one other requirement, as well: entitlement to the pending benefit must be from a month earlier than the month of death (otherwise, the veteran would not be “entitled to receive” compensation or pension for the month of death).

If the death is not service-connected, veterans who first entered service after September 1980 (enlisted) or October 1981 (officers) are subject to the minimum active duty service requirement.

A plot or interment allowance may also be payable for a veteran whose death is not service-connected and who:

• Served during a wartime period and the body is unclaimed; or • Was in receipt of compensation or pension; or • Would have been entitled to receive compensation or pension but for receipt of military retired pay; or • Was discharged from service because of a disability incurred or aggravated in the line of duty (whether or not service connection was ever established by VA for that condition); or • Was properly hospitalized by VA or at VA expenses;

And who is not buried in a National Cemetery.

Under certain conditions VA will also pay an allowance for the costs of transporting the veteran’s body from the place of death to the place of burial or interment: If the veteran died on or after September 11, 2001 and the death is service-connected, the burial allowance payable is the total cost of the funeral, burial and transportation of the veteran’s body from the place of death to the place of burial or interment, or $2,000, whichever is less.

How Much Does VA Pay?

Service-Related Death. VA will pay up to $2,000 toward burial expenses for deaths on or after September 11, 2001. VA will pay up to $1,500 for deaths prior to September 10, 2001. If the Veteran is buried in a VA national cemetery, some or all of the cost of transporting the deceased may be reimbursed.

Non-service-Related Death. For deaths on or after October 1, 2011, VA will pay up to $700 toward burial and funeral expenses (if hospitalized by VA at time of death), or $300 toward burial and funeral expenses (if not hospitalized by VA at time of death), and a $700.00 plot-interment allowance (if not buried in a national cemetery). For deaths on or after December 1, 2001, but before October 1, 2011, VA will pay up to $300 toward burial and funeral expenses and a $300 plot-interment allowance. The plot/interment allowance is $150 for deaths prior to December 1, 2001. If the death happened while the Veteran was in a VA hospital or under VA contracted nursing home care, some or all of the costs for transporting the Veteran’s remains may be reimbursed. An annual increase in burial and plot allowances, for deaths occurring after October 1, 2011, begins in fiscal year 2013 based on the Consumer Price Index for the preceding 12-month period.

Advocacy Update: On March 22, 2013, VA Central Office sent out Fast Letter 13-04, which included several directives intended to improve processing of DIC claims. One of the specific provisions of that Fast Letter was a change in interpretation that now a Claimant entitled to DIC under section 1318 is also entitled to service-connected burial benefits. There is no time limit to apply for service connected burial benefits, so any claimant who had previously been denied service connected burial benefits, as DIC was awarded under 38 U.S.C. §1318 although death was determined to be not service-connected, should now apply for the additional benefit.

When the death is not service-connected, under certain conditions VA will also pay for the costs of transporting the veteran’s body from the place of death to the place of burial or interment. If the veteran is to be buried in a National Cemetery and was either in receipt of compensation, or would have been entitled to receive compensation but for receipt of military retired pay or disability pension (as a greater benefit), the cost of transporting the veteran’s body to the nearest National Cemetery having space is payable. [38 CFR § 3.1600(g)] If the veteran dies while hospitalized by VA or at VA expense, or dies while traveling under VA authorization, or dies in an approved state nursing home, the cost of transporting the veteran’s body from the place of death to the place of burial or interment may also be paid.

If a person who is not a veteran dies while properly hospitalized by VA, the nonservice-connected burial allowance plus the cost of transporting the body to the place of burial or interment is payable. The plot allowance is not payable, however.

There is no time limit for filing a service-connected burial claim; or for claiming the allowance for transporting a veteran’s body from a VA (or VA-contracted) hospital to the place of burial or interment; or for claiming the allowance for transporting the veteran’s body to a National Cemetery for burial. For deaths which are not service-connected, the time limit for submitting a claim for burial and/or plot allowance is two years after the date of final permanent burial or interment. If the burial allowance could not be paid at the time of the veteran’s death because of the character of the veteran’s discharge and the discharge is subsequently corrected or upgraded so that

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benefits would now be payable, the claim for burial allowance must be filed within two years from the date of correction of the veteran’s discharge.

The order of precedence of claimant(s) for burial, plot and transportation allowance is:

1. The funeral director, if any portion of the funeral bill is unpaid; 2. The person or entity from whom the plot was purchased or who provided interment services (if other than the funeral director), if any portion of the bill for such is unpaid; 3. The person whose personal funds were used to pay the expenses of the funeral, transportation, or burial; or 4. The administrator or executor of the veteran’s estate or the estate of the person who paid the expenses of the veteran’s burial or provided such services.

References: For more information on the laws and regulations concerning burial allowances, see 38 U.S.C. Chapter 23, and 38 C.F.R. §§1600, 1601, AND 1602.

The application and evidentiary requirements for burial allowance are:

• A completed VA Form 21-530, Application for Burial Benefits, signed by the proper claimant and by the person who authorized the services (if not the same person); • A death certificate or other acceptable proof of death; • Proof of the veteran’s service, if not already of record. • A statement of account on the billhead (invoice) of the funeral director or cemetery owner, showing the deceased veteran’s name, the plot or interment costs, the nature and costs of the services rendered, and the remaining unpaid balance (if any); and • Receipted bills showing by whom payment was made and by whom it was received on behalf of the funeral director and/or cemetery owner.

If the veteran was indigent or the body is unclaimed, there must also be a written certification, signed by a responsible official (usually the Public Guardian/Public Administrator) of the state or subdivision (county) where the body is held, that the veteran had no next of kin or other person to claim the body and that the veteran’s estate does not have sufficient funds to cover the expenses of the funeral and burial.

Persons eligible for burial in the National Cemetery include service members who die on active duty and veterans who meet applicable duty requirements and who were discharged under honorable conditions.

Veterans who first entered service after September 1980 [enlisted personnel] or October 1981 [officers] are subject to minimum active duty service requirements.

Other eligible persons include Reservists who are entitled to retired pay based on 20 or more years of creditable service with a Reserve component; Reservists and members of the National Guard who die as the result of disease or injury incurred or aggravated in line of duty during active duty for training or inactive duty training, or who die while being treated for such a disease or injury, or who die while traveling to or from authorized training; and commissioned officers of the National Oceanic and Atmospheric Administration and the U.S. Public Health Service and members of the Reserve Officers Training Corps (ROTC) whose death occurs under specified conditions. World War II Merchant Mariners and U.S. citizens who served honorably in the armed forces of an Allied country during a wartime period are also eligible for burial in a National Cemetery, as well as any other persons or

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classes of persons designated by either there Secretary of Veterans Affairs or the Secretary of the Air Force.

Finally, the spouse or surviving spouse of an eligible person may be buried in a National Cemetery, even if the eligible person is not buried or memorialized there. The dependent minor children, the unmarried adult children (up to age 23) who are attending an approved school, and the unmarried adult disabled children of an eligible person are also eligible for burial in a National Cemetery.

Beginning December 16, 2003, remarriage (at any age) no longer disqualifies a surviving spouse from eligibility for burial in a National Cemetery (previously, the surviving spouse’s eligibility could be restored if the remarriage were terminated by death or divorce).

Persons convicted of a capital crime under either federal or state laws may not be buried or memorialized in a National Cemetery.

VA does not provide military funeral honors. If requested by the veteran’s family, the Department of Defense will provide a funeral honor guard detail of not less than two members, at least one of whom will be from the veteran’s branch of service. The honors ceremony will include, at a minimum, the folding and presentation of the American flag to the family plus the playing of “Taps,” either by a bugler or a recording. Military funeral honors are not restricted to services in National Cemeteries. In some localities, the funeral honor guard may be provided by local veterans’ service organization volunteers.

HEADSTONE AND GRAVE MARKER

http://www.cem.va.gov/hmm/index.asp

VA will provide a headstone or grave marker for veterans buried anywhere in the world, and for eligible dependants of veterans buried in National Cemeteries, state veterans’ cemeteries, or military post cemeteries (but no private cemeteries). The style and type of marker furnished will depend on the rules of the particular cemetery. Niche markers are also available for identifying cremated remains in a columbarium. The headstone or marker will generally contain the name of the deceased, the year of birth and death and (for the veteran) the branch of service.

Optionally, the headstone or marker may also be inscribed with the deceased veteran’s military grade, rank or rate, complete dates of birth and death, an appropriate religious emblem, and a listing of any awards for valor. If the burial is in a National Cemetery, a state veterans’ cemetery, or a military post cemetery, the headstone or marker is ordered through the cemetery, which will place it on the gravesite. If the burial is in any other cemetery, the headstone or marker must be ordered from VA by completing VA Form 40-1330, Application for Standard Government Headstone or Marker for Installation in a Private or State Veterans’ Cemetery, and sending it to:

Memorial Programs Service (41A1) Department of Veterans Affairs 5109 Russell Road Quantico, VA 22134-3903 Or FAX applications and supporting documents to 1-800-455-7143.

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The headstone or marker will be shipped at Government expense; however. VA does not pay the cost of placing it. There is no time limit for ordering a headstone or marker. For veterans who died after December 27, 2001 and who are buried in a private cemetery, VA will furnish an appropriate grave marker even if the grave is already marked with a non-government marker.

VA will provide an American flag to cover the casket of a veteran or eligible Reservist (only). This may be requested by the funeral director or by the next of kin or next friend of the deceased. VA Form 21- 2009, Application for United States Flag for Burial Purposes, may be submitted to VA Regional Office, to the National Cemetery office, or to designated US Post Offices.

SEC. 517. FURNISHING OF BURIAL FLAGS FOR DECEASED MEMBERS AND FORMER MEMBERS OF THE SELECTED RESERVE. Section 2301 of title 38, United States Code, is amended by adding at the end the following new subsection: (f)(1) The Secretary shall furnish a flag to drape the casket of each deceased member or former member of the Selected Reserve (as described in section 10143 of title 10) who is not otherwise eligible for a flag under this section or section 1482(a) of title 10-- (A) who completed at least one enlistment as a member of the Selected Reserve or, in the case of an officer, completed the period of initial obligated service as a member of the Selected Reserve; (B) who was discharged before completion of the person's initial enlistment as a member of the Selected Reserve or, in the case of an officer, period of initial obligated service as a member of the Selected Reserve, for a disability incurred or aggravated in line of duty; or (C) who died while a member of the Selected Reserve. (2) A flag may not be furnished under subparagraphs (A) or (B) of paragraph (1) in the case of a person whose last discharge from service in the Armed Forces was under conditions less favorable than honorable. (3) After the burial, a flag furnished under paragraph (1) shall be given to the next of kin or to such other person as the Secretary considers appropriate.

Presidential Memorial Certificates

The Presidential Memorial Certificate Program was initiated in March 1962 by President John F. Kennedy to honor the memory of honorably discharged, deceased veterans and may be issued to the families or other loved ones of any honorably discharged deceased veteran.

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The Certificate (PMC) is an engraved certificate, signed by the current President, to honor the memory of Honorably discharged deceased veterans.

The DVA administers the program by preparing the certificate that bears the President’s signature and expresses the country’s grateful recognition of the veteran’s service in the United States Armed Forces.

Application may be made on the form:

VA Form 40-0247, Application for a Presidential Memorial Certificate

Return the completed form along with a copy of the discharge documents to:

Presidential Memorial Certificates (41A1C) National Cemetery Administration 5109 Russell Road Quantico, VA 22134-3903

Application forms may also be requested from this address. There is no time limit for requesting a Presidential Memorial Certificate. Eligible recipients, or someone acting on their behalf, may apply for a PMC in person at any VA regional office or by U.S. mail or toll-free fax. Requests cannot be sent via email. Please be sure to enclose a copy of the Veteran's discharge and death certificate to verify eligibility, as PMC cannot process any request without proof of honorable military service. Please submit copies only, as they will not return original documents. The VA is currently advising Veteran Service Officers that if they have questions about the status of a request please contact VA at 1-202-565- 4964. You may send request for status by email to [email protected]. The application form (VA Form 40- 0247) is available online. It is suggested that when using the toll free fax that you do not also send a paper copy of the application through the mail. The suggested procedure is to follow all of the steps below:

1. Find a copy of the veteran's military discharge documents that shows Active Duty for other than training purposes. 2. Fill out the application as completely as possible to include your phone number. 3. Sign the application form before faxing. If the PMC is for the Next Of Kin (NOK), please have the NOK sign the form. VSO’s, Funeral Homes and agents of the veteran's family may sign the form if delivery is to their address. Please make the family aware of the PMC request whenever possible prior to sending the request.

A cover sheet is not required if your fax consists of a fully completed and signed application form and discharge document. Put the application form and supporting documents in your fax machine in the following order:

• Top – Application form (VA Form 40-0247) • 2nd – Discharge Document (s)

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FAX YOUR APPLICATION AND SUPPORTING DOCUMENT(S) TO: Toll Free Fax Number: 1-800-455-7143

A specific request for service officers is to send one application package (application plus supporting document(s)) at a time. For this fax system to work as intended you must disconnect the call (hang up) and re-dial between each new application package.

Burial in a National Cemetery

The National Cemetery System is operated by the DVA. Burial in a National Cemetery includes the gravesite, the headstone, opening and closing the grave, and perpetual care. Any deceased veteran discharged from the U. S. Armed Forces under conditions other than dishonorable is eligible for burial in a National Cemetery. Military service after September 7, 1980, requires a minimum of 24 months of service except for special circumstances. Individual with 20 or more years of service in the National Guard or Reserves, entitled to retired pay are eligible for burial. Spouses, surviving spouses, dependent children, and adult, handicapped children are eligible for burial.

One gravesite is authorized for the interment of all eligible members of a family. A gravesite is not reserved before it is needed for a burial. Military honors are not provided by the DVA. If requested by the veteran’s family, the Department of Defense will provide a funeral honor guard detail of not less than two members, at least on of whom will be from the veteran’s branch of service. The honors ceremony will include, at a minimum, the folding and presentation of the American flag to the family plus the playing of “Taps,” either by a bugler or a recording. Military funeral honors are not restricted to services in National Cemeteries. In some localities, the funeral honor guard may be provided by local veterans’ service organization volunteers. Local funeral directors have been provided information on this program.

There are two national cemeteries that are administered by the Department of the Army – Arlington National Cemetery and the National Cemetery located at the Soldiers and Sailors Home in Washington, DC.

These two facilities have different rules and regulations from other national cemeteries.

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A Guide to Burial at Arlington National Cemetery Eligibility for Interment (Ground Burial)

The persons specified below are eligible for ground burial in Arlington National Cemetery. The last period of active duty of former members of the Armed Forces must have ended honorably. Interment may be casketed or cremated remains.

a. Any active duty member of the Armed Forces (except those members serving on active duty for training only). b. Any veteran who is retired from active military service with the Armed Forces. c. Any veteran who is retired from the Reserves is eligible upon reaching age 60 and drawing retired pay; and who served a period of active duty (other than for training). d. Any former member of the Armed Forces separated honorably prior to October 1, 1949 for medical reasons and who was rated at 30% or greater disabled effective on the day of discharge. e. Any former member of the Armed Forces who has been awarded one of the following decorations: 1. Medal of Honor 2. Distinguished Service Cross (Navy Cross or Air Force Cross) 3. Distinguished Service Medal 4. Silver Star 5. Purple Heart

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f. The President of the United States or any former President of the United States. g. Any former member of the Armed Forces who served on active duty (other than for training) and who held any of the following positions: 1. An elective office of the U.S. Government 2. Office of the Chief Justice of the United States or of an Associate Justice of the Supreme Court of the United States. 3. An office listed, at the time the person held the position, in 5 USC 5312 or 5313 (Levels I and II of the Executive Schedule). 4. The chief of a mission who was at any time during his/her tenure classified in Class I under the provisions of Section 411, Act of 13 August 1946, 60 Stat. 1002, as amended (22 USC 866) or as listed in State Department memorandum dated March 21, 1988. h. Any former prisoner of war who, while a prisoner of war, served honorably in the active military, naval, or air service, whose last period of military, naval or air service terminated honorably and who died on or after November 30, 1993.

i. The spouse, widow or widower, minor child, or permanently dependent child, and certain unmarried adult children of any of the above eligible veterans. j. The widow or widower of: 1. a member of the Armed Forces who was lost or buried at sea or officially determined to be missing in action. 2. a member of the Armed Forces who is interred in a US military cemetery overseas that is maintained by the American Battle Monuments Commission. 3. a member of the Armed Forces who is interred in Arlington National Cemetery as part of a group burial. k. The surviving spouse, minor child, or permanently dependent child of any person already buried in Arlington National Cemetery. l. The parents of a minor child, or permanently dependent child whose remains, based on the eligibility of a parent, are already buried in ANC. A spouse divorced from the primary eligible, or widowed and remarried, is not eligible for interment. m. Provided certain conditions are met, a former member of the Armed Forces may be buried in the same grave with a close relative who is already buried and is the primary eligible. Web Address: http://www.arlingtoncemetery.mil/about

Arlington National Cemetery Arlington, VA 22211 (703) 607-8000

http://www.arlingtoncemetery.mil/Funerals/Scheduling-a-Funeral/Establishing-Eligibility

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FORMS

Burial Allowances VA-Form 21-530 - Application for Burial Benefits Death Certificate Funeral Receipt Medical Evidence to Support Service-Connected Death Transportation Bill/Invoice

Grave Markers Form 40-1330 - Application for Standard Government Headstone or Marker Death Certificate DD-214 Birth Certificate (If Discrepancy Noticed)

U. S. Flags VA Form 2009 - Application for United States Flag for Burial Purposes Death Certificate DD-214 (For Each Enlistment)

Obtain From: DVA Regional Offices Post Offices

Presidential Certificate VA Form 40-0247 – Application for Presidential Memorial Certificate Death Certificate DD-214 (or equivalent, For Each Enlistment)

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CHAPTER 10 VA MEDICAL CARE

References:

Title 38, U.S. Code, Chapter 17 38 Code of Federal Regulations Part 17 VA Pamphlet 80-05-1, Federal Benefits for Veterans and Dependents http://www.va.gov/healtheligibility/

http://www.tricare.mil/mybenefit/

http://www.va.gov/healthbenefits/vhbh/

http://www.va.gov/PURCHASEDCARE/docs/pubfiles/factsheets/FactSheet_01-19.pdf [information about the relationship between CHAMPVA and the Affordable Health Care Act as of March 2015]] http://www.va.gov/healthbenefits/resources/publications.asp

It may be very useful to download the VA’s health care benefit overview pamphlet, which supplements much of the information in this deskbook in greater detail: http://www.va.gov/healthbenefits/resources/publications/IB10-185-health-care- overview_2015_july_v2_eng.pdf

Over the last few years there have been significant changes in the way the VHA websites, including the multiple links, are arranged. Spending some time on the VHA websites exploring the links will assist in finding information efficiently.

Summary:

VA operates the nation’s largest integrated health care system with more than 1,400 sites of care, including hospitals, community clinics, community living centers, domiciliary, readjustment counseling centers, and various other facilities. For additional information on VA health care, visit: www.va.gov/health.

http://www.va.gov/healthbenefits/assets/documents/publications/hb_handbook_sample3_2013.pdf

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Because of the great influx in the number of veterans needing health care recently, and because of multiple budgetary considerations, there may be some variation in the enrollment and admissions policies and availability at different VA Medical Centers. It is prudent to go to the online references cited herein to determine current eligibility criteria.

Basic Eligibility

A person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable may qualify for VA health care benefits. Reservists and National Guard members may also qualify for VA health care benefits if they were called to active duty (other than for training only) by a Federal order and completed the full period for which they were called or ordered to active duty.

Minimum Duty Requirements: Veterans who enlisted after Sept. 7, 1980, or who entered active duty after Oct. 16, 1981, must have served 24 continuous months or the full period for which they were called to active duty in order to be eligible. This minimum duty requirement may not apply to veterans discharged for hardship, early out or a disability incurred or aggravated in the line of duty.

In general, VA will provide health care, including medical or other treatment as required, to any honorably discharged veteran. VA will also furnish care to certain persons who received an other than honorable discharge from service, but only for a disability which was incurred in or aggravated by service, in line of duty [38 CFR §§ 3.360, 17.47(a)(2)]. VA medical facilities may furnish health care to certain veterans’ dependents covered under CHAMPVA, as well as to military personnel and retirees and their families covered under CHAMPUS/TRICARE. VA will furnish needed care for problems related to spina bifida and certain other birth defects in eligible children of Vietnam veterans. Finally, VA medical facilities will furnish necessary emergency care, including hospital admission where required, on a humanitarian basis for any person regardless of status.

To obtain medical care, or health care benefits in general, it is necessary to apply for them. This is done by submitting a completed VA Form 10-10, Application for Medical Benefits, or 10-10ez, Application for Health Benefits, to the nearest VA medical facility. Except in emergency situations, a veteran seeking care for a service-connected condition will generally take precedence over others. In all other cases, the priority of care is as follows: Enrollment Priority Groups - What are they and how does it work?

During enrollment, each veteran is assigned to a priority group. VA uses priority groups to balance demand for VA health care enrollment with resources. Changes in available resources may reduce the number of priority groups VA can enroll. If this occurs, VA will publicize the changes and notify affected enrollees. A description of priority groups follows:

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The number of Veterans who can be enrolled in the health care program is determined by the amount of money Congress gives VA each year. Since funds are limited, VA set up Priority Groups to make sure that certain groups of Veterans are able to be enrolled before others. Once you apply for enrollment, your eligibility will be determined based on your specific eligibility information. You will then be assigned a Priority Group based on your specific eligibility. The Priority Groups range from 1-8 with 1 being the highest priority for enrollment. Some high-income Veterans who do not have a special eligibility factor such as a Purple Heart or Medal of Honor for example, may have to agree to pay copays to be placed in certain Priority Groups and may not be eligible for enrollment. You may be eligible for more than one Enrollment Priority Group. In that case, VA will always place you in the highest Priority Group for which you are eligible.

Priority Groups Priority Group 1

• Veterans with VA-rated service-connected disabilities 50% or more disabling. • Veterans determined by VA to be unemployable due to service-connected conditions.

Priority Group 2

• Veterans with VA-rated service-connected disabilities 30% or 40% disabling.

Priority Group 3

• Veterans who are Former Prisoners of War (POWs). • Veterans awarded a Purple Heart medal. • Veterans whose discharge was for a disability that was incurred or aggravated in the line of duty. • Veterans with VA-rated service-connected disabilities 10% or 20% disabling. • Veterans awarded special eligibility classification under Title 38, U.S.C., § 1151, “benefits for individuals disabled by treatment or vocational rehabilitation”. • Veterans awarded the Medal Of Honor (MOH).

Priority Group 4

• Veterans who are receiving aid and attendance or housebound benefits from VA. • Veterans who have been determined by VA to be catastrophically disabled.

Priority Group 5

• Nonservice-connected Veterans and noncompensable service-connected Veterans rated 0% disabled by VA with annual income and/or net worth below the VA national income threshold and geographically-adjusted income threshold for their resident location. • Veterans receiving VA pension benefits. • Veterans eligible for Medicaid programs.

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Priority Group 6

• Compensable 0% service-connected Veterans. • Veterans exposed to ionizing radiation during atmospheric testing or during the occupation of Hiroshima and Nagasaki. • Project 112/SHAD participants. • Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. • Veterans of the Persian Gulf War that served in the Southwest Asia Theater of combat operations between August 2, 1990, and November 11, 1998. • Veterans who served on active duty at Camp Lejeune for not fewer than 30 days beginning August 1, 1953 and ending December 31, 1987*.

Veterans who served in a theater of combat operations after November 11, 1998 as follows:

Currently enrolled Veterans and new enrollees who were discharged from active duty on or after January 28, 2003, are eligible for the enhanced benefits for 5 years post discharge.

Combat Veterans who were discharged between January 2009 and January 2011, and did not enroll in the VA health care during their 5 year period of eligibility have an additional one year to enroll and receive care. The additional one-year eligibility period began February 12, 2015 with the signing of the Clay Hunt Suicide Prevention for America Veterans Act.

Note: At the end of this enhanced enrollment priority group placement time period, Veterans will be assigned to the highest Priority Group their unique eligibility status at that time qualifies for. *While eligible for Priority Group (PG) 6; until system changes are implemented you would be assigned to PG 7 or 8 depending on your income. Priority Group 7

• Veterans with gross household income below the geographically-adjusted VA income limit for their resident location and who agree to pay copays.

Priority Group 8

• Veterans with gross household incomes above the VA national income threshold and the geographically-adjusted income threshold for their resident location and who agrees to pay copays.

Veterans eligible for enrollment: Noncompensable 0% service-connected and:

• Subpriority a: Enrolled as of January 16, 2003, and who have remained enrolled since that date and/or placed in this subpriority due to changed eligibility status. • Subpriority b: Enrolled on or after June 15, 2009 whose income exceeds the current VA National Income Thresholds or VA National Geographic Income Thresholds by 10% or less.

Veterans eligible for enrollment: Nonservice-connected and:

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• Subpriority c: Enrolled as of January 16, 2003, and who have remained enrolled since that date and/or placed in this subpriority due to changed eligibility status. • Subpriority d: Enrolled on or after June 15, 2009 whose income exceeds the current VA National Income Thresholds or VA National Geographic Income Thresholds by 10% or less.

• Subpriority e: Noncompensable 0% service-connected (eligible for care of their SC condition only). • Subpriority g: Nonservice-connected. • Veterans not eligible for enrollment: Veterans not meeting the criteria above:

Note: Due to income relaxation rules implemented on June 15, 2009 Veterans with household income above the VA national threshold or the GMT income threshold for their resident location by 10 percent or less, who agree to pay copays, are eligible for enrollment in Priority Group 8.

The GMT thresholds can be located at: http://www.va.gov/healthbenefits/resources/publications/IB10- 497_means_test_gmt_and_pension_threshold_nov14.pdf

Recently Discharged Combat Veterans

Veterans, including activated reservists and members of the National Guard, are eligible for the enhanced “Combat Veteran” benefits if they served on active duty in a theater of combat operations after November 11, 1998, and have been discharged under other than dishonorable conditions.

Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for enhanced enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five-years post discharge.

Veterans with combat service after Nov. 11, 1998, who were discharged from active duty before Jan. 28, 2003, and who apply for enrollment on or after Jan. 28, 2008, are eligible for this enhanced enrollment benefit through Jan. 27, 2011. During this period of enhanced enrollment benefits, these veterans receive VA care and medications at no cost for any condition that may be related to their combat service.

Veterans who enroll with VA under this “Combat Veteran” authority will retain enrollment eligibility even after their five-year post discharge period ends. At the end of their post discharge period, VA will reassess the Veteran’s information (including all applicable eligibility factors) and make a new enrollment decision. For additional information, call 1-877-222-VETS (8387).

On enrollment, the veteran will be assigned to one of the above priority groups, and is eligible for all needed inpatient and outpatient medical, surgical, and psychiatric services, including, but not limited to, drugs and pharmaceutical supplies, home healthcare, and hospice care.

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The veteran may choose a preferred facility for receiving primary care. The enrollment is for one year, and is automatically renewed each year unless the veteran requests that it not be renewed.

Enrollment For most veterans, entry into the VA health care system begins by applying for enrollment. To apply, complete VA Form 10-10EZ, Application for Health Benefits, which may be obtained from any VA health care facility or regional benefits office, on line at www.1010ez.med.va.gov/sec/vha/1010ez/ or by calling 1-877-222-VETS (8387).

Once enrolled, veterans can receive health care at VA health care facilities anywhere in the country.

Veterans enrolled in the VA health care system are afforded privacy rights under federal law. VA’s Notice of Privacy Practices, which describes how VA may use and disclose veterans’ medical information, is also available on line at www.oprm.va.gov/privacy/resources_privacy.aspx

The following four categories of veterans are not required to enroll, but are urged to do so to permit better planning of health resources:

1. Veterans with a service-connected disability of 50 percent or more. 2. Veterans seeking care for a disability the military determined was incurred or aggravated in the line of duty, but which VA has not yet rated, within 12 months of discharge. 3. Veterans seeking care for a service-connected disability only. 4. Veterans seeking registry examinations (Ionizing Radiation, Agent Orange, Gulf War/Operation Iraqi Freedom and Depleted Uranium).

Special Access to Care

Service-Disabled Veterans: who are 50 percent or more disabled from service-connected conditions, unemployable due to service-connected conditions, or receiving care for a service-connected disability receive priority in scheduling of hospital or outpatient medical appointments.

To allow for planning and allocation of resources, all veterans applying to a VA medical facility for health care are required to enroll with VA, unless the veteran was discharged from service less than a year ago because of service-connected disability, even though VA has not yet rated it; or has a service- connected disability rated 50% or more; or is seeking treatment only for a service-connected disability. If budgetary resources require, enrollments may be deferred or discontinued for veterans in Priority Groups 7 and/or 8 on a year-by-year basis.

In general, a veteran must obtain health care from a VA medical facility, if reasonably available (usually considered as being within 30 miles of the veteran’s residence). If the VA medical facility is unable to provide a needed service in a particular case, VA may either contract with local facilities to provide the service or send the veteran (at VA expense) to the nearest VA medical facility that can provide the

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service. If no VA medical facility is reasonably available, VA may authorize the veteran to obtain specified care locally on a fee basis. If the veteran’s service-connected disability is rated 50% or more, fee basis care may be authorized for any condition. If the service-connected rating is less than 50%, fee basis care may be authorized only for service-connected condition(s). Fee basis care must be authorized in advance in all cases.

If a veteran should require emergency treatment or admission to a non-VA medical facility for a service- connected condition, VA will reimburse the charges incurred provided the VA medical facility of jurisdiction is notified within 72 hours of such treatment or admission. VA will also reimburse cost of emergency treatment at a non-VA medical facility for a nonservice-connected condition, provided that:

• The veteran is currently enrolled in the VA Health Care system; • The condition in question has been treated (by VA) within the previous two years; and • The veteran is not covered under any other health services plan.

The only other circumstances under which VA will reimburse unauthorized expenses (emergency or otherwise) for a nonservice-connected condition are: if the veteran is rated permanently totally disabled from service-connected disabilities (whether 100% or by reason of individual unemployability), or if the veteran is enrolled in a program of Vocational Rehabilitation and it is medically determined that the treatment is required for the veteran to continue training. If VA agrees to reimbursement of unauthorized charges and the veteran requires prolonged hospitalization, VA will require transfer to a VA medical facility as soon as the veteran’s condition permits.

Reimbursement of Travel Costs

Certain veterans may be provided special mode travel (e.g. wheelchair van, ambulance) or reimbursed for travel costs when traveling for approved VA medical care. Reimbursement is paid at 41.5 cents per mile and is subject to a deductible of $3 for each one-way trip and $6 for a round trip; with a maximum deductible of $18 or the amount after six one-way trips (whichever occurs first) per calendar month. Two exceptions to the deductible are travel in relation to a VA compensation or pension examination and travel requiring a special mode of transportation. The deductible may be waived when their imposition would cause a severe financial hardship.

Eligibility: The following are eligible for VA travel:

1. Veterans whose service-connected disabilities are rated 30 percent or more. 2. Veterans traveling for treatment of service-connected conditions. 3. Veterans who receive a VA pension. 4. Veterans traveling for scheduled compensation or pension examinations. 5. Veterans whose gross household income does not exceed the maximum annual VA pension rate. 6. Certain veterans in certain emergency situations. 7. Veterans whose medical condition requires a special mode of transportation, if they are unable to defray the costs and travel is pre-authorized. Advance authorization is not required in an emergency if a delay would be hazardous to life or health. 8. Certain non-veterans when related to care of a veteran (attendants & donors).

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For veterans requiring specialized modes of transport, travel pay may also include the costs of meals and lodging en route, as well as the cost of an attendant. Prior travel authorization is required except in the event of a medical emergency or other circumstance where a delay would be hazardous.

http://www.va.gov/HEALTHBENEFITS/vtp/beneficiary_travel.asp

Limited outpatient dental services are available at VA medical facilities. Veterans who are rated totally disabled from service-connected conditions (whether 100% or because of individual unemployability), former prisoners of war (with no distinctions based on length of captivity, beginning December 6, 2003), and veterans who have a service-connected dental disability of compensable severity are entitled to any and all necessary dental care. Veterans who are participating in a program of Vocational Rehabilitation are entitled to any dental treatment necessary for them to continue in their program. Veterans who suffered dental trauma in service, whether in combat or otherwise, are entitled to any necessary treatment for the specific teeth for which noncompensable service connection is established. Other veterans with noncompensable service-connected dental disabilities are entitled to whatever treatment may be necessary for the one-time correction of the service-connected dental condition, provided they meet the length of service requirements and they make application to the Dental Clinic within 90 days after discharge from service. Veterans being treated for other conditions, whether as an inpatient or outpatient, may receive dental care which is medically necessary; that is, for a dental problem which is complicating the medical condition currently under treatment.

All VA medical facilities have special programs and services for female veterans. In addition to regular generic medical services, there is also a full array of gender-specific services for female veterans, such as gynecological (breast and pelvic) examinations and reproductive health care counseling. Preventive health care for female veterans includes contraceptive services, PAP smears, mammography, and menopause management. Counseling and therapy are also available for women who suffered sexual trauma during service. Some, but not all, VA medical facilities may offer maternity services. If a particular VA facility does not have a certain service available, it will either contract the service out or provide a community referral. There is a Women’s Program Coordinator at each VA medical facility.

VHA provides extensive specialized rehabilitation services for severely disabled veterans. The Western Blind Rehabilitation Center is located at the VA Medical Center at Palo Alto, and provides extensive rehabilitation services for blind veterans throughout much of the state of California.

There is another Blind Rehabilitation Center at the VA Medical Center in Phoenix, Arizona. Rehabilitative services from these centers are provided on an inpatient and outpatient basis, as well as through community-based organizations, for qualified blind veterans regardless of whether the blindness is service-connected. Members of the Visually Impaired Services Team (VIST) are assigned to many VA outpatient clinics for outreach purposes, and there are also VIS coordinators at all VA medical facilities. For veterans with diseases or injuries of the central nervous system, the VA Medical Centers at Long Beach and Palo Alto provide special rehabilitative services by the Brain Injury Unit and the Spinal Cord Injury Unit.

For veterans who are not acutely ill and do not require hospitalization, but who do require medium-to- long term custodial and/or skilled nursing care, VA has Nursing Home Care Units associated with some medical centers. Admission is on a space-available basis, with first priority given to veterans whose service-connected disability requires this level of care. Other veterans are considered in order of their priority groups.

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If a veteran requires nursing home level of care and space is not available in a VA Nursing Home Care Unit, VA may place the veteran in a civilian nursing home under VA contract, as a VA beneficiary. A VA nursing home contract normally will not be for longer than six months, unless the condition requiring nursing home care is service-connected, or the veteran was hospitalized for a service- connected disability and then transferred to the nursing home. Under certain limited circumstances a veteran may be admitted directly to a civilian nursing home as a VA beneficiary.

Finally, VA may provide domiciliary care for veterans who are able to perform basic self-care tasks and require only low-level nursing, rehabilitation, and/or custodial services. Eligibility for admission to a domiciliary is income-based: the veteran’s annual income may not be more than the maximum VA pension rate, or the veteran must be shown to have no adequate means of support. Only some VA Medical Centers offer domiciliary care; there are also VA domiciliaries which are not associated with a VA medical facility.

The Omnibus Budget Reconciliation Act of 1990, provides that veterans receiving medications on an outpatient basis from VA facilities, for the treatment of a nonservice-connected disability or condition, are required to make a co-payment of $8.00 for each 30-day or less supply of medication provided. Veterans receiving medications for treatment of a service-connected condition and veterans rated 50 percent or more service-connected are exempt from the co-payment requirement for medications.

The Department of Veterans Affairs is authorized to bill insurance carriers for the cost of medical care furnished to all veterans for nonservice-connected conditions covered by health insurance policies. Veterans are not responsible and will not be charged for any co-payment or co-insurance required by their health insurance policies.

Recent Update: On March 24, 2014 the VA announced that it is eliminating the annual requirement for most Veterans enrolled in VA’s health care system to report income information beginning in March 2014. Instead, VA will automatically match income information obtained from the Internal Revenue Service and Social Security Administration. It was also announced that some Veterans applying for enrollment for the first time are still required to submit income information. There is no change in VA’s long-standing policy to provide no-cost care to indigent Veterans, Veterans with catastrophic medical conditions, Veterans with a disability rating of 50 percent or higher, or for conditions that are officially rated as “service-connected.”

Effective January 2015, VA eliminated the use of net worth information as a determining factor for eligibility in both medical care services and copayment responsibilities. This change makes VA health care benefits more accessible to lower-income Veterans, who have no service-connected condition or other qualifying factors. VA now will only consider a Veteran’s gross household income and deductible expenses from the previous year.

DENTAL SERVICES: 38 CFR § 17.160

Dental services are provided by the Department of Veterans Affairs (VA) to veterans on an outpatient basis under the following conditions:

1. Veterans are considered eligible and may apply at any time for outpatient dental services if: a. Veteran receives service-connected compensation for a dental condition or disability

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b. Veteran is rated at 0% for service-connected dental conditions which are the result of combat wounds or service injuries. c. Veteran was a prisoner of war, with no distinctions based on length of captivity. d. Veteran receives, or is entitled to receive but for military retired pay, disability compensation at the 100 percent rate for one or more service-connected conditions, or is rated service-connected and totally disabled because of individual unemployability. e. Veteran dental condition is non-service connected and it is determined by the VA to be associated with and aggravating a service-connected condition. f. Veteran is participating in a VA vocational rehabilitation program. g. Certain enrolled homeless veterans participating in specific health care programs.

2. Veteran must apply within 90 days of separation from active duty if his/her dental conditions or disabilities are shown to have been in existence at the time of his/her discharge or release from active service of at least 180 days. (DD-214 must state Dental Care Not Provided).

Dental treatment claimed is for a nonservice-connected condition and dental treatment was begun while receiving hospital care at VA expense, and it is professionally determined to be reasonably necessary to complete the remainder of this dental care on an outpatient basis.

DESIGNATED SPECIALTY CENTERS:

The Department of Veterans Affairs maintains Specialty Centers (for blinded, paraplegic, amputees, alcoholic, drug addicted, etc.), the nature and location of which can be obtained from any VA field station, or your NCDVA hospital or clinic representative.

ADMISSION OF ALCOHOLIC AND DRUG ADDICTED VETERANS TO VETERANS AFFAIRS HOSPITALS:

Requests for hospitalization for the treatment of alcoholism and drug addiction will be medically and administratively processed in the same manner as requests for admission for treatment of any other disability, disease, or defect susceptible to cure or decided improvement, except that all eligible applicants for hospitalization for drug dependence will be classified as medical emergencies.

BENEFICIARY TRANSPORTATION:

Under the Veterans Benefits and Services Act of 1988, Public Law 100-322, new travel provisions were implemented. Under this law all VA Medical Centers and facility directors will ensure promulgation of policies and procedures pertinent to beneficiary travel commencing July 1, 1988.

1. Beneficiary travel payments shall be made to the following categories of VA beneficiaries:

a. A veteran or other person traveling in connection with treatment for a service connected disability, subject to the deductible.

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Note: "other person" is defined to include a veteran's non-employee attendant; a dependent or survivor receiving care in a VA facility; or members of the immediate family, the legal guardian or an individual in whose household the veteran lives or intends to live when receiving counseling or mental health services in conjunction with the veteran's care.

b. A veteran with a service-connected disability rated at 30 percent or more, for treatment of any condition, subject to the deductible.

c. A veteran receiving VA pension benefits, subject to the deductible.

d. A veteran whose annual income (as determined under 38 U.S.C. 503) does not exceed the maximum annual rate of pension which would be payable if the veteran was eligible for pension, subject to the deductible.

e. A veteran or other person whose travel is medically required to be performed by a special mode of travel and who is unable to defray the expenses. The deductible does not apply.

f. A veteran whose travel is incident to a scheduled compensation and pension examination. The deductible does not apply.

2. Beneficiary travel payments shall be made to eligible beneficiaries for the following purposes:

a. Reimbursement, less deductible, for scheduled outpatient visits and admissions:

1) Mileage reimbursement or the cost of travel by common carrier, whichever is less, will be paid for only scheduled outpatient visits or admissions.

2) Mileage reimbursement for categories of veterans described in paragraph 1.a,b,c, and d, is subject to a deductible of $6 (round-trip) for each visit, not to exceed $18 per calendar month. Veterans who are required to make more than three round-trip visits per month will receive full reimbursement once the $18 deductible cap is met.

b. Scheduled compensation and pension examinations. Furnish all transportation and other expenses incident to scheduled compensation and pension examination. (no deductible)

c. Medically indicated specialized modes of transportation

The VA shall pay the cost of specialized modes of transportation when a VA physician determines it is medically required, and it is authorized before travel begins, and the veteran or other person is unable to defray the cost. Medical emergencies do not require preauthorization as defined in paragraph 1.e.

Note: "unable to defray the cost" is defined to include veterans or other person traveling in connection with a service-connected disability, veterans who are service-connected 30% or more, veterans in receipt of VA pension, or whose annual income does not exceed the maximum annual rate of pension which would be payable if the veteran were eligible for pension. The deductible does not apply. Special mode includes ambulance,

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air ambulance, wheelchair van, or other modes of transportation which are specially designed to transport certain types of medically disabled individuals. Special mode does not include public transportation such as a bus, subway, train, airplane, or privately owned conveyance.

d. Medical emergency-When delaying immediate transportation would be hazardous to the patient's health or life, a specialized mode of transportation may be authorized by a VA physician before eligibility is determined. Payment may be made to the provider of the transportation, subject to subsequently recovering the amount of the payment from the veteran if the veteran were determined to be ineligible.

e. Interfacility transfer-When necessary to transfer the inpatient from one health care institution (either VA or a contract care facility) to another, provided both institutions furnish the individual with treatment at VA expense, or under VA auspices, and the transfer is necessary for the continuation of such treatment, use of hired car, or a taxi is authorized, provided these are less expensive than other modes of travel.

Note: Eligibility criteria and deductibles do not apply. All care required for inpatients is the responsibility of the VA.

Ambulance Travel: It cannot be emphasized too strongly to avoid difficulties in reimbursement that prior authorization for ambulance travel must be obtained. It is important to obtain the name of the person in the VA authorizing transportation. We are outlining below a short summary of the procedure to be followed:

When a veteran, his attending physician, or his representative contacts a VA clinic, center or hospital requesting emergency ambulance, the chief medical officer, or his designee, will get all information possible about the case, and after weighing the facts, make final decision on the necessity for ambulance service and grant such service unconditionally if warranted.

Authority for ambulance service may be unconditional except where, from the information available, a determination cannot be made that the applicant is in fact a veteran. Only in cases where there was misrepresentation of facts on the part of the attending physician, the veteran, or his representative, will there be a reversal of the authority granted.

When a veteran is brought by ambulance to a VA hospital in which the VA has beds allocated for admission for a service-connected disability, and his condition is such that ambulance service was necessary, reimbursement for the cost of ambulance service may be authorized when the delay caused in obtaining prior authority might have resulted in endangering the veteran's life.

When a VA clinic or sub-clinic, center, or hospital receives a call for emergency ambulance service for a veteran and a VA contract ambulance service is not available or practical, the chief medical officer or his designee is authorized to pay such charges for ambulance service not in excess of that charged the general public for such service in the area in which the veteran resides. TRICARE Some veterans and dependents have eligibility for medical care under TRICARE. There are areas where, with access to military medical facilities, participation in TRICARE, if a veteran is eligible,

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may be advantageous to a veteran. As with many health systems, there is considerable information available, but the process can be confusing. Some familiarity with the system, and the portals to obtain additional information, can be very helpful to the service officer. TRICARE is the health care program serving active duty service members, National Guard and Reserve members, retirees, their families, survivors and certain former spouses worldwide. As a major component of the Military Health System, TRICARE brings together the health care resources of the uniformed services and supplements them with networks of civilian health care professionals, institutions, pharmacies and suppliers to provide access to high-quality health care services while maintaining the capability to support military operations.

Due to the similarity between CHAMPVA and the Department of Defense (DoD) TRICARE program (sometimes referred to by its old name, CHAMPUS) the two are often mistaken for each other. CHAMPVA is a Department of Veterans Affairs program whereas TRICARE is a regionally managed health care program for active duty and retired members of the uniformed services, their families, and survivors. In some cases a veterans may look to be eligible for both/either program on paper. However, a military retiree, or the spouse of a veteran who was killed in action, is and will always be a TRICARE beneficiary, and can´t choose between the two. Eligibility To be eligible for TRICARE benefits, a veteran must be registered in the Defense Enrollment Eligibility Reporting System. TRICARE offers several health plan options to meet the needs of it's beneficiary population. Additionally, TRICARE offers two dental plans and several additional special programs.

CHAMPVA The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) is a comprehensive health care program in which the VA shares the cost of covered health care services and supplies with eligible beneficiaries. The program is administered by Health Administration Center and the offices are located in Denver, Colorado. For additional information about CHAMPVA, please see Chapter 19, page 175 below.

Eligibility

To be eligible for CHAMPVA, a veteran or dependant cannot be eligible for TRICARE/CHAMPUS and must be in one of these categories:

1. the spouse or child of a veteran who has been rated permanently and totally disabled for a service-connected disability by a VA regional office, or 2. the surviving spouse or child of a veteran who died from a VA-rated service connected disability, or 3. the surviving spouse or child of a veteran who was at the time death rated permanently and totally disabled from a service connected disability, or 4. the surviving spouse or child of a military member who died in the line of duty, not due to

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misconduct (in most of these cases, these family members are eligible for TRICARE, not CHAMPVA).

An eligible CHAMPVA sponsor may be entitled to receive medical care through the VA health care system based on his or her own veteran status. Additionally, as the result of a recent policy change, if the eligible CHAMPVA sponsor is the spouse of another eligible CHAMPVA sponsor, both may now be eligible for CHAMPVA benefits. In each instance where the eligible spouse requires medical attention, he or she may choose the VA health care system or coverage under CHAMPVA for his/her health care needs. For complete coverage information, check the website below: (*you will be leaving the VA Website). (This handbook is 96 pages, and is downloadable. Your circumstances will determine how much you need to print out)

http://www.va.gov/PURCHASEDCARE/docs/pubfiles/programguides/champva_guide.pdf

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ELIGIBILITY AND HOW TO APPLY FOR A DEPARTMENT OF VETERANS AFFAIRS FEE BASIS I.D. CARD

ELIGIBILITY

A. Service-connected veterans

B. Veterans in receipt of SMP

C. Requires recurrent outpatient medical treatment

D. No Department of Veterans Affairs (VA) facilities available or the VA facility cannot treat the medical condition

APPLICATION

A. Submit VA Form 10-10 (Marked Fee Basis Card)

B. Submit, if possible, a doctor's report on treatment needed. This will help the veteran speed up the process

C. Submit VA Form 10-101 (Insurance Worksheet)

D. Mail to: Nearest VA Medical Center

How to use a Fee-Basis card once issued

A. Veteran must locate the Physician of his/her choice who is willing to participate in the Fee Program

B. Payment is limited to $125.00 per month for the conditions listed on the Fee Basis Card

C. If the Fee Physician wants to perform a procedure that will exceed the $125.00 limit, he must obtain prior approval by submitting a written treatment plan with medical justification to the following address: Medical Center where enrolled.

D. Physician should be willing to accept Fee Schedule payments as Paid in Full.

E. Veteran should not be billed any balances for services beyond what the Fee Schedule allows unless the services were for unapproved conditions. In that case the VA will not pay.

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Special Notes

A. Fee Basis I.D. Cards are for outpatient treatment only (no dental, hospitalization, prosthetic, or any other purposes).

B. All veterans will be re-evaluated periodically to determine continuation of Fee Basis care. Fee Basis is not a permanent status for any veteran.

Insurance Information

The VA will bill insurance companies for medical care provided for all non-service connected disabilities.

Example:

1. Veterans with aid and attendance or who are housebound and WWI veterans whose only entitlement is non-service connected.

2. Veterans who are rated 50% service-connected or more and are authorized treatment for non service connected conditions; the VA will bill insurance companies for the non-service connected conditions.

3. VA will not bill the veteran if the insurance carrier does not pay.

Eligibility and How to Apply for VA Authorization of Emergency-Outpatient Treatment

A. Service-connected 50% - 100%

Any Emergent condition

B. Service-connected less than 50%

Emergent treatment for service-connected conditions only

C. A & A, Housebound, or WWI veterans

Any Emergent condition

D. VA facilities are not feasibly available

E. Must be reported within 15 days from the date of Emergent condition

F. Notification of such Emergency may be made by telephone, telegram or letter.

G. When submitting for payment, veteran must submit all invoices, emergency room report or doctors' report; and must substantiate the existence of a medical Emergency

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H. Notification must be made to the VA Medical Center in which the veteran is enrolled.

Eligibility and Procedures to File a Claim for Unauthorized Emergent Outpatient Medical Services

A. Emergent treatment for a service-connected disability

B. Emergent treatment for any condition for veterans rated permanently and totally disabled due to a service-connected disability (no future exam scheduled).

C. VA facilities must not be feasibly available

D. Medical condition must be of such an emergent nature that any delay in obtaining treatment would have been hazardous to the veteran's life or health.

E. Payment request must be received by the VA within 2 years of the date of Treatment

How to File

A. All bills, vouchers, invoices, or receipts or other documentary evidence establishing that such amount was paid.

B. Emergency room reports

C. An explanation of the circumstances necessitating the use of private emergent medical care

Submit to: Medical Center where enrolled.

How to use VA Pharmacy to file non-VA prescriptions Fee Basis I.D. Card Participant

A. Veterans being treated by private physicians at VA expense on Fee Basis

Must send prescriptions to: Medical Center where enrolled.

B. Mail-out pharmacy will substitute with Generic Drugs where medically feasible.

How to obtain reimbursement, for prescriptions filled at non-VA pharmacies for Fee Basis Medical I.D. Card participants

A. Acute Illnesses-One Time Basis

B. Veteran needs to submit an itemized receipt and should include:

1. Veteran's name, social security next number, and mailing address 1. Date prescription was provided 2. Name, strength, and quantity of each drug along with amount paid 3. Prescription number of drug 4. Name and address of pharmacy

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5. Name and address of prescribing physician 6. Receipted statement marked paid 7. Certification by the prescribing physician with the statement that "This medication order is needed immediately for the patient's disability which the VA has authorized me to treat"

Mail to: Medical Center where enrolled.

Note: For Emergent 10-day supply of new prescriptions call this number in advance: (1-877-354-5196)

Eligibility and How to File an Unauthorized Private Hospitalization Claim

A. Notification after 72 hours of emergent private hospitalization

B. Emergent service-connected condition.

C. If veteran is rated 100% permanent and totally disabled due to a service-connected disability for any emergent condition.

D. VA facilities were not available

How to File

1. Emergency room report, if any

2. Hospital admission notes, history, and physical report.

3. Physician's daily progress notes

4. Hospital discharge summary

5. VA Form 10-583 completed by each provider of care.

6. VA Form 10-583 from veteran requesting reimbursement with itemized invoices showing any balance due (to include payments made by Medicare, insurance, or veteran).

Mail completed claims to: Medical Center where enrolled.

Remember payment will only be made to the date when the veteran's condition improved to the point that the patient could be safely transferred to a VA Medical Center.

Non-VA Emergency Care Benefits

Congress recently provided VA with new authority to pay for emergency care in non-VA facilities . This benefit is a safety net for enrolled veterans who have no other means of paying a private facility

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emergency bill. If another health insurance provider pays all or part of a bill, VA cannot provide any reimbursement. To qualify a veteran must meet all of the following criteria:

a. The veteran is enrolled in the VA Health Care System

b. The veteran has been provided care by a VA clinician or provider within the past 24 months.

c. The veteran was provided care in a hospital emergency department or similar facility providing emergency care.

d. The veteran has no other form of health insurance.

e. The veteran does not have coverage under Medicare, Medicaid or a state program

f. The veteran does not have coverage under any other VA programs

g. Department of Veterans affairs or other Federal facilities are not feasibly available at the time of emergency event.

h. A reasonable lay person would judge that any delay in medical attention would endanger the veteran’s health or life

i. The veteran is financially liable to the provider of the emergency treatment for that treatment.

j. The veteran has no other contractual or legal recourse against a third party that will pay all or part of the bill.

Prescriptions for State Veterans Home Residents (38 CFR §17.96)

Any prescription, which is not part of authorized Department of Veterans Affairs hospital or outpatient care, for drugs and medicines ordered by a private or non –Department of Veterans Affairs doctor of medicine or doctor of osteopathy duly licensed to practice in the jurisdiction where the prescription is written, shall be filled by a Department of Veterans Affairs pharmacy or a non-VA pharmacy in a state home under contract with the VA for filling prescriptions for filling prescriptions for patients in state homes provided:

The prescription is for:

1. A veteran who, by reason of being permanently housebound or in need of regular aid and attendance, is in receipt of increase compensation or increased pension

2. A veteran in need of regular aid and attendance who was formerly in receipt of increased pension as described in a State Veterans Home whose pension has been discontinued solely by reason of excess income but only so long as such veteran’s annual income does not exceed the maximum annual income limitation by more than $ 1,000.00 and the drugs and medicines are prescribed as specific therapy in the treatment of any of the veterans illness or injuries.

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Veteran Health Registries:

Certain veterans can participate in a VA health registry and receive free medical examinations, including laboratory and other diagnostic tests deemed necessary by an examining clinician. VA maintains health registries to provide special health examinations and health-related information. To participate, contact the Environmental Health (EH) Coordinator at the nearest VA health care facility or visit www.publichealth.va.gov/exposures, where a directory of EH Coordinators is maintained. One of the reasons for participating in relevant registry examinations, in addition to the veteran’s own health concerns, is the information obtained from the registry examinations is used to assist in determining which conditions may be added to the “lists” of presumptive conditions in various categories.

Gulf War Registry: For veterans who served on active military duty in Southwest Asia during the Gulf War, which began in 1990 and continues to the present, including Operation Iraqi Freedom (OIF). The Gulf War examination registry was established after the first Gulf War to identify possible diseases resulting from U.S. military personnel service in certain areas of Southwest Asia. These diseases were endemic to the area or may have been due to hazardous exposures, including heavy metals. Furthermore, air pollutants, i.e., carbon monoxide sulfur oxides, hydrocarbons, particulate matter, and nitrogen oxides, singly or in combination, could have caused chronic health problems.

Depleted Uranium Registries: Depleted uranium is natural uranium left over after most of the U-235 isotope has been removed, such as that used as fuel in nuclear power plants. DU possesses about 60 percent of the radioactivity of natural uranium; it is a radiation hazard primarily if internalized, such as in shrapnel, contaminated wounds, and inhalation. In addition to its radioactivity, DU has some chemical toxicity related to being a heavy metal (similar to lead).

Veterans who are identified by the Department of Defense (DoD) or have concerns about possible depleted uranium (DU) exposure are eligible for a DU evaluation. VA maintains two registries for veterans possibly exposed to depleted uranium. The first is for veterans who served in the Gulf War, including Operation Iraqi Freedom. The second is for veterans who served elsewhere, including Bosnia and Afghanistan.

Agent Orange Registry: For veterans possibly exposed to dioxin or other toxic substances in herbicides used during the Vietnam War, between 1962 and 1975, regardless of length of service, or while serving in Korea in 1968 or 1969, or as a result of testing, transporting, or spraying herbicides for military purposes. DoD has provided a list of locations and dates where herbicides, including Agent Orange,

128 were used. This DoD list is available at www.publichealth.va.gov/exposures. For those sites not listed, the Vietnam Veteran should provide some proof of exposure to obtain a registry examination.

Ionizing Radiation Registry: For Veterans possibly exposed to and who are concerned about possible adverse effects of their atomic exposure during the following activities -- On-site participation in: an atmospheric detonation of a nuclear device, whether or not the testing nation was the United States; occupation of Hiroshima or Nagasaki from Aug. 6, 1945, through July 1, 1946; or internment as a POW in Japan during World War II, which the Secretary of Veterans Affairs determines resulted in an opportunity for exposure to ionizing radiation comparable to that of Veterans involved in the occupation of Hiroshima or Nagasaki.

In addition, VA regulations provide that “radiation-risk activity” means service at: Department of Energy gaseous diffusion plants at Paducah, Kentucky, Portsmouth, Ohio, or the K-25 area at Oak Ridge, Tennessee for at least 250 days before Feb. 1, 1992. If the Veteran was monitored for each of the 250 days using dosimetry badges to monitor radiation to external body parts or if the Veteran served for at least 250 days in a position that had exposures comparable to a job that was monitored using dosimetry badges; Longshot, Milrow or Cannikin underground nuclear tests at Amchitka Island, Alaska, before Jan. 1, 1974 or Veterans who received nasopharyngeal (NP) – nose and throat - radium irradiation treatments while in the active military, naval, or air service.

Women Veterans Health

The Women Veterans Health (WVH) Strategic Health Care Group provides programmatic and strategic support to implement positive changes in the provision of care for all women Veterans. In 1988, the Women Veterans Health Program was created to streamline services for women Veterans in order to provide more cost-effective medical and psychosocial care. At that time 4.4 percent of Veterans were women. The current projected percentage of U.S. Veterans who are women is 8 percent. For the most recent projections, visit: http://www1.va.gov/VETDATA/index.asp Also see: http://www.womenshealth.va.gov/ The Women Veterans Health program was elevated to a Strategic Health Care Group within the Office of Public Health and Environmental Hazards in 2007, increasing its scope of activities to include all services provided to women Veterans. VA is actively addressing resource needs so that the proper training, as well as equipment and supplies (including DEXA scans, mammography machines, ultra- sound and biopsy equipment) are in place in facilities. Locate a facility to find out more. As part of the realignment of the Veterans Health Administration, effective March 27, 2011, Women's Health became part of the Office of Patient Care Services (PCS). The reorganization affords greater opportunities for collaboration between Women's Health and programs including Primary Care, Mental Health, Specialty Care like cardiology and pain management, and other offices within PCS. For additional information on Women Veteran issues generally, please see Appendix O page 234.

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FORMS

MEDICAL BENEFITS

https://www.1010ez.med.va.gov/sec/vha/1010ez

VA Form 10-10 EZ - Application for Health Benefits

VA Form 10-10 EZR – Application for Renewal of Health Benefits

VA Form 10-10D - Application for ChampVA Benefits

VA Form 10-7959A – ChampVA Claim Form

VA Form 10-7959C - ChampVA Other Health Insurance Form (OHI)

VA Form 10-583 - Claim for Payment of Cost of Unauthorized Medical Services

Because of the complexity and variety of VHA services, it would be good practice to become familiar with the information contained on the following sites: http://www.va.gov/health/default.asp

http://www.medicalsurgical.va.gov/MEDICALSURGICAL/index.asp

http://www.va.gov/health/MedicalCenters.asp

http://www.va.gov/opa/publications/benefits_book/benefits_chap01.asp

http://www.va.gov/healthbenefits/resources/publications.asp [this site has a number of pdf’s related to many VHA programs]

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CHAPTER 11 LOAN GUARANTY

Criteria for an eligible veteran or other eligible person to obtain a loan to buy, build, or improve a home under VA’s Loan Guaranty program.

References:

Title 38, U.S. Code, Chapter 37. 38 CFR Part 36. http://www.benefits.va.gov/WARMS/bookh_1.asp Guaranteed Loan Processing Manual M26-1; http://www.benefits.va.gov/warms/M26_1.asp VA Pamphlets: Federal Benefits for Veterans and Dependents 26-4, VA-Guaranteed Home Loans for Veterans 26-5, Pointers for the Veteran-Homeowner 26-6, To the Home-Buying Veteran: A Guide for Veterans Planning to Buy or Build Homes with a VA Loan 26-69-1, Questions and Answers on Specially Adapted Housing and Special Housing Adaptations for Veterans 26-71-1, Questions and Answers on Manufactured Home Loans for Veterans 26-91-1, VA Home Loans: A Quick Guide for Homebuyers & Real Estate Professionals 80-04-1, Federal Benefits for Veterans and Dependents.

http://benefits.va.gov/homeloans/documents/docs/vap_26-4_online_version.pdf http://www.benefits.va.gov/homeloans/lp.asp http://www.benefits.va.gov/HOMELOANS/docs/Loan_Limits_2012_Dec_2011.pdf http://www.benefits.va.gov/warms/topic-homeloans.asp [This link leads to a complete revision to VA Manual 26-12, Specially Adapted Housing Grant Processing Procedures, Loan Guaranty Operations for Regional Offices that was transmitted in February 2014]

http://www.benefits.va.gov/WARMS/M26_13_Native_American_Direct_Loans_Manual.asp [this is a recent complete revision to the manual covering the unique regulatory requirements for home loans for Native American Veterans living on Trust Lands]

Although service officers should be knowledgeable and current regarding the criteria for the VA Loan Guaranty program, in most cases a veteran should be contacting someone at a local lending institution who handles such loans. There are variations in state laws and banking laws that these professionals are responsible for knowing and adhering to. It is

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critical that the veteran understands that the VA does not make loans, but guarantees loans from approved lenders. It is also useful to refer to the VA Lenders Handbook – VA Pamphlet 26-7 which is also available online in WARMS.

VA Pamphlet 26-7, VA Lender’s Handbook, along with H26-94-1, VA Servicing Guide, are now available electronically on the Internet. Changes to the handbook and Servicing Guide will be available on the Internet when signed. Lenders are strongly encouraged to begin accessing these publications electronically. http://www.benefits.va.gov/warms/pam26_7.asp

Excerpts from certain Loan Guaranty circulars beginning in 1996 are also available electronically. Circulars contain information about changes to VA policies and/or procedures and information that regional offices are required to release to lenders and/or servicers in their area. Circulars, which only discuss internal VA procedures, are not included.

http://www.benefits.va.gov/homeloans/new.asp

There are also commercial services distributing VA documents electronically. For example, the Mortgage Resource Center (800-848-4904) offers them on diskettes for those without access to the Internet as well as over the Internet (http://www.allregs.com). They can notify lenders by electronic mail when lender’s handbook changes or circulars are issued.

In response to your feedback, we are providing here a streamlined version of the information related to the application process. After this section we have provided more extensive material for those who need or wish to do in depth research.

Summary:

The Department of Veterans Affairs (VA) will guarantee loans to be used for the following purposes:

• To buy a home (including a townhouse or a condominium unit in a VA-approved project); • To build a new home; • To repair, alter, or improve an existing home • To refinance an existing loan (including an existing VA loan to reduce the interest rate); • To buy a manufactured (mobile) home and/or lot; • To buy and improve a lot on which to place an already-owned and -occupied mobile home; or • To refinance a mobile home loan in order to acquire a lot.

IMPLEMENTATION OF LOAN GUARANTY PROVISIONS OF PUBLIC LAW 110-389

1. PURPOSE: On October 10, 2008, the President signed Public Law 110-389, the Veterans’ Benefits Improvement Act of 2008. This circular addresses the changes to VA’s Loan Guaranty Program that were included in that law. 2. EXTENSION OF ADJUSTABLE RATE MORTGAGE AUTHORITY: VA’s authority to guarantee adjustable rate mortgages (ARMs) and hybrid adjustable rate mortgages (HARMs) was

132 scheduled to expire on September 30, 2008. Section 505 of Public Law 110-389 extended this authority through September 30, 2012. All VA program requirements related to ARMs and HARMs remain in effect. 3. ENHANCEMENT OF REGULAR REFINANCING LOANS: Section 504 of Public Law 110-389 made changes to VA’s regular (“cash-out”) refinancing loans. Effective immediately, the maximum guaranty amount for regular refinancing loans is the same as the maximum guaranty amount for purchase loans. Regular refinancing loans are now available for up to 100 percent of the appraised value of a home, which is an increase from VA’s previous threshold of 90 percent. All other VA program requirements for regular refinancing loans remain the same. 4. GUARANTY AMOUNTS: Section 501 of Public Law 110-389 provides a temporary increase in the maximum guaranty amount for loans closed January 1, 2009, through December 31, 2011. During this period, the “maximum guaranty amount” set forth in this circular should be substituted for the maximum guaranty amount specified at 38 U.S.C. 3703(a)(1)(C), 38 CFR §§ 36.4302(a)(4) and 36.4802(a)(4), and in the VA Lender’s Handbook. Please note that, if a veteran has previously used entitlement that has not been restored, the guaranty amount for that veteran must be reduced accordingly. a. Loans for $417,000 or Less Are Unaffected: The guaranty amount for loans where the original principal loan amount is $417,000 or less remain unchanged. On these loans, VA will continue to guarantee the amounts specified at 38 U.S.C. 3703(a)(1) and the VA Lender’s Handbook. b. Loans for More Than $417,000: If the original principal loan amount is greater than $417,000, VA will guarantee 25 percent of the original principal loan amount, up to the maximum guaranty amount. The maximum guaranty amount varies depending upon the location of the property. (1) For all locations in the United States other than Alaska, Guam, Hawaii, and the U.S. Virgin Islands, the maximum guaranty amount is the greater of 25 percent of (a) $417,000 or (b) 125 percent of the area median price for a single-family residence, but in no case will the guaranty exceed 175 percent of the Freddie Mac loan limit for a single family residence in the county in which the property securing the loan is located. This translates to a potential maximum loan amount of $1,094,625. (2) In Alaska, Guam, Hawaii, and the U.S. Virgin Islands, the maximum guaranty amount is the greater of 25 percent of (a) $625,500 or (b) 125 percent of the area median price for a single-family residence, but in no case will the guaranty exceed 175 percent of the Freddie Mac loan limit for a single family residence in the county in which the property securing the loan is located. This translates to a potential maximum loan amount of $1,641,937.50. c. Annual Adjustments: The maximum guaranty amounts set forth above will be adjusted annually. The first adjustment will affect loans closed on or after January 1, 2010.

5. CALCULATING THE MAXIMUM GUARANTY FOR LOANS OVER $417,000:

The Department of Veterans Affairs (VA) Loan Guaranty program does not set a maximum amount that an eligible Veteran may borrow using a VA-guaranteed loan. Lenders may make loans to Veterans greater than the maximum county loan limit; however, lenders may require Veterans to make a downpayment for the amount borrowed in excess of the applicable county loan limit.

The following county loan limits must be used to calculate VA’s maximum guaranty amount. These limits apply to all loans closed January 1, 2014 through December 31, 2014. VA loan limits are based on county median home values reported by the Federal Housing Administration. These values are the basis for which VA calculates limits for our program. For 2014, some limits increased, some stayed the same and a few decreased. NOTE: For all counties not listed below, the limit is $417,000. http://benefits.va.gov/HOMELOANS/documents/docs/2016_county_loan_limits.pdf http://www.fhfa.gov/DataTools/Downloads/Pages/Conforming-Loan-Limits.aspx

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The maximum guaranty amount for loans over $144,000 is 25 percent of the 2014 VA county loan limit shown below. Veterans with full entitlement available may borrow up to this limit and VA will guarantee 25 percent of the loan amount.

If a Veteran has previously used entitlement that has not been restored, the maximum guaranty amount available to that Veteran must be reduced accordingly. Lenders should check their own investor requirements regarding guaranty amounts and downpayments. Questions about VA loans in a particular county may be directed to the VA Regional Loan Center of jurisdiction.

VA-guaranteed loans are not available to buy a farm (unless the farm includes a farm house which will be personally occupied by the veteran or eligible person as their home), or to buy a business. Financing for these may be obtained through the Farmers Home Administration and the Small Business Administration, respectively, both of which give preference to veterans.

Except as noted below, VA does not actually make the loan; rather, VA guarantees a percentage of the loan value, thereby reducing the risk to the lender. The actual amount of the guarantee will vary depending on the total amount of the loan, the value of the property involved, and whether the veteran or eligible person has previously used any of his or her loan guaranty entitlement. The amount of the loan may not exceed the reasonable value of the property; the maximum amount of the guarantee will be 25% of the Freddie Mac (Federal Home Loan Mortgage Corporation) conforming loan limit limitation for a single-family residence, as adjusted (for the year involved). If both spouses are veterans and each has loan guaranty entitlement available, their separate entitlements may be combined to obtain a greater guaranty amount.

VA will make direct loans under certain circumstances to eligible Native American veterans to buy, build, or improve a home on Native American trust (tribal) lands. The maximum loan in this case is $80,000 or the actual cost of the home, whichever is less. VA may also make direct loans to eligible disabled veterans who qualify for the Special Adapted Housing grant, to help cover the difference between the amount of the grant and the cost of the housing unit. In this case, the maximum loan is $48,000.

The veteran or other eligible person must meet all of the credit-worthiness and the other usual and customary requirements of the lending institution, as well as making the down payment (if any) and paying the normal and reasonable closing costs. There is also a funding fee, which may be either paid separately or included in the loan; this fee varies according to the amount of down payment made. If the veteran is in receipt of service-connected disability compensation or is entitled to compensation but for the receipt of military retired pay, the funding fee is waived. Interest rates are negotiable. The length of the mortgage and repayment plan depends on the specifics of the loan, including the amount and purpose and the particular lender. In general, the maximum length of the loan term is 30 years and 32 days; the repayment plan may be a fixed-payment, a graduated payment, a “buydown,” or a growing equity mortgage plan. If the loan is to build a new home, VA will require the builder to offer a warranty against construction defects; however, VA has no enforcement authority in such cases except to suspend the builder from future participation in the Loan Guaranty program.

For qualifying service, veterans who served during any wartime period from World War II or later (except for the Persian Gulf Conflict) must have served at least 90 days of active duty and have been discharged under honorable conditions. Veterans whose service was entirely during peacetime periods July 26, 1947 to June 26, 1950; February 1, 1955 to August 4, 1964; or May 8, 1975 to September 7,

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1980 (if enlisted) or to October 16, 1981 (if an officer) must have served at least 181 days of continuous active duty and have been discharged under honorable conditions.

In both cases, if service was less than the minimum specified time but the veteran was discharged because of a service-connected disability, the veteran may still be eligible for benefits.

Veterans whose service began after September 7, 1980 (if enlisted) or after October 16, 1981 (if an officer) and ended before August 1, 1990 must have completed 24 months of continuous active duty or the full period for which called or ordered to active duty, and have been discharged under honorable conditions. Eligibility may still exist if the veteran served less than the specified length of time, but was discharged because of a service-connected disability; or served at least 20 months and was discharged for the convenience of the Government; or served at least 181 days and was discharged because of hardship or reduction in force; or has been determined to have a service-connected disability of compensable severity. Veterans who served during the Persian Gulf Conflict (beginning August 2, 1990), have the same 24-month length of service requirement; however, the exceptions only require 90 days of active duty rather than 181 days. Current active duty service members require 90 days of continuous active service for eligibility. Certain members of the Selected Reserve and National Guard who are not otherwise eligible for Loan Guaranty benefits, who have served at least 6 years in the Reserves or National Guard and who continue to serve in the Selected Reserve, or have been discharged under honorable conditions, or have been discharged because of a service-connected disability, or have been placed on the retired list, or have been transferred to an element of the Ready Reserves other than the Selected Reserve, are eligible for VA Loan Guaranty benefits. Previous eligibility delimiting dates for Selected Reserve and National Guard members have been repealed.

Other persons eligible for VA Loan Guaranty benefits include the un-remarried surviving spouse of a veteran who died on active duty or whose death is determined to be service-connected in nature; the spouse of any active duty service member who has been listed as missing in action or as a prisoner of war for more than 90 days; certain U.S. citizens who served in the armed forces of an Allied government during World War II; and persons who served as members of certain other organizations, services, programs, or schools. Veterans of World War I and members of the Reserves or National Guard whose only active duty was Active Duty for Training are not eligible for VA Loan Guaranty benefits. However, they may qualify for a veteran’s loan under the National Housing Act loan program (FHA/HUD). The Veterans Benefits Act of 2003 provides that the remarriage of the surviving spouse after age 57 shall not bar eligibility for VA home loan.

Upon application, VA will make a determination of eligibility and entitlement and issue a Certificate of Eligibility, which the eligible person should present to the lending institution when applying for the loan (however, the loan application may be made before applying to VA).

There are no time limits for using Loan Guaranty entitlement. Beginning December 16, 2003, the previous delimiting date time limits for Reservists and National Guard members who qualify for Loan Guaranty benefits based on service in the Selected Reserves and/or National Guard are repealed.

Once entitlement has been used it generally cannot be restored, except under the following circumstances:

1. If the entitlement limits have been increased since the previous loan was approved, the difference between the old limits and the new limits may be available for a new VA loan, even if the previous loan is not fully paid off; or

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2. If the property has been sold and the previous loan has been paid in full; or 3. A qualified eligible person buys the property, agrees to assume the outstanding VA loan balance, agrees to substitute the same amount of his or her entitlement for the entitlement originally used to guarantee the loan, and the new buyer meets all of the occupancy, income and credit requirements; or 4. One time only—If the prior VA loan has been paid in full but the property securing that loan has not been sold or otherwise disposed of, the entitlement used in connection with that loan may be restored.

In each of these cases application for restoration of entitlement must be made by completing and returning VA Form 26-1880, Request for Determination of Eligibility and Available Loan Guaranty Entitlement, to the address listed below.

(Mailing Address) (Overnight Address)

VA Loan Eligibility Center VA Loan Eligibility Center P.O. Box 20729 251 N. Main Street

Winston-Salem, North Carolina 27120 Winston-Salem, North Carolina 27155

A veteran or eligible person may sell at any time the property on which a VA loan has been made. However, if the new buyer will be assuming the existing VA loan there are differing requirements, according to whether the original loan was closed before or after March 1, 1988. If the original loan closed before that date, the loan may be assumed without the approval of either VA or the lender; however, the veteran or eligible person who obtained the original loan will remain liable should the current or any future assumer ever go into default. This can be avoided by obtaining a release of liability from the VA office which guaranteed the loan. If the original loan closed on or after March 1, 1988, the loan cannot be assumed unless VA or the lender (or both) are notified, approve the assumer, and release the veteran or eligible person from further liability. The application forms are requested from the lender to whom the payments are being made.

Veteran: DD-214 VA Form 26-1880, Request for Determination of Eligibility and Available Loan Guaranty Entitlement http://www.vba.va.gov/pubs/forms/vba-26-1880-are.pdf

Surviving Spouse: DD-214 Death Certificate of Veteran Marriage Certificate VA Form 26-1817, Request for Determination of Loan Guaranty Eligibility- Unmarried Surviving Spouse

Reservist: VA Form 26-1880 Points Statement (showing Character of Service) or Statement of Service from Commanding Officer or NGB-22 (US Army) or DD Form 256 & Points Statement

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CHAPTER 12

INSURANCE References: Title 38, U.S. Code, Chapter 19 38 Code of Federal Regulations Parts 6, 7, 8, 8a, and 9 Insurance Operations Manual 29-1 VA Pamphlets: 29-9 - Service-Disabled Veterans Insurance RH Information and Premium Rates 29-77-03 - Facts About Beneficiary and Option Designations Do You Know How the Naming of a Beneficiary or Beneficiaries and Selection of Optional Settlements Affect the Payment of Your Government Life Insurance? 29-77-4, Veterans Special Life Insurance: Information About Conversion and Premium Rates For “W” Policies SGL 74-3, Information Pamphlet for Converting Your Servicemen’s Group Life Insurance to Veterans Group Life Insurance SGLV 78-1, Questions and Answers on Servicemen’s Group Life Insurance 80-05-1, Federal Benefits for Veterans and Dependents VA Booklet: Government Life Insurance Programs for Veterans and Servicemembers (January 2004)

http://benefits.va.gov/insurance/

Summary:

The Department of Veterans Affairs either directly administers or supervises the administration of eight different types of insurance programs, covering veterans and active duty service members from World War I to the present. All VA insurance activities are centralized to the VA Regional Office and Insurance Center (VAROIC) in Philadelphia, Pennsylvania. The Insurance Center formerly located at VARO St. Paul, Minnesota is closed.

UNITED STATES GOVERNMENT LIFE INSURANCE: The oldest VA insurance program is United States Government Life Insurance (USGLI), identified by policy number prefix “K”. This was established in 1919 for conversion of World War I War Risk Term Insurance, and was later made available to service members who had served after World War I, until October 8, 1940. After that date only veterans who had actually served in World War I were eligible for enrollment. All enrollments under this program were closed on April 24, 1951. As of January 1, 1983 all USGLI policies were declared paid-up, and premiums are no longer collected on them.

TRAUMATIC INJURY PROTECTION INSURANCE: The TSGLI Program became effective on December 1, 2005. The program was designed to provide severely injured service members who suffer certain losses as a direct result of a traumatic injury with short-term monetary assistance. The VA’s Insurance Service undertook a comprehensive review of the TSGLI program to ascertain whether additional injuries/losses should be covered, whether the program was operating effectively, and whether other improvements could be made. Regulations published in

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the Federal Register November 26, 2008 implemented the changed recommended in the Year One Review. Traumatic Injury Protection (TSGLI) provides automatic traumatic injury coverage to all Servicemembers covered under the SGLI program. It provides short-term financial assistance to severely injured Servicemembers and Veterans to assist them in their recovery from traumatic injuries. TSGLI is not only for combat injuries, but provides insurance coverage for injuries incurred on or off duty. Eligibility If a serviceperson or veteran is insured under full-time SGLI, he is. automatically covered by TSGLI. TSGLI coverage applies to active duty members, reservists, National Guard members, funeral honors duty and one-day muster duty. To be eligible for payment of TSGLI, the following requirements apply:

• The service person must be insured by SGLI when you experience a traumatic injury • He/she must incur a scheduled loss and that loss must be a direct result of a traumatic injury • He/she must have suffered the traumatic injury prior to midnight of the day of separation from the uniformed services • He/she must suffer a scheduled loss within 2 years (730 days) of the traumatic injury • He/she must survive for a period of not less than seven full days from the date of the traumatic injury (The 7-day period begins on the date and time of the traumatic injury, as measured by Zulu [Greenwich Meridian] time and ends 168 full hours later)

This benefit is also provided retroactively for Servicemembers who incurred severe losses as a result of traumatic injuries incurred between October 7, 2001 and November 30, 2005, regardless of the geographic location where the injury occurred, and regardless of whether coverage was in effect at the time of injury. Effective October 1, 2011, the Veterans' Benefit Improvement Act of 2010 removed the requirement that injuries during the retroactive period be incurred in Operations Enduring or Iraqi Freedom. Use the eligibility questionnaire to see if you may be eligible for a Retroactive TSGLI payment. There is also available a list of losses eligible for TSGLI payment. Cost/Rates The premium for TSGLI is a flat rate of $1 per month for most Servicemembers. Filing a Claim

To file a claim for TSGLI benefits, down load from this site and complete form:

http://benefits.va.gov/INSURANCE/forms/TSGLIForm.htm

NATIONAL SERVICE LIFE INSURANCE: With the massive expansion of the U.S. Armed Forces just before World War II, a new program, National Service Life Insurance (NSLI), identified by policy number prefixes “V”, “N”, or “AN”, was opened on October 8, 1940. This was also a term insurance, with a $10,000 limit. The policies could be renewed indefinitely, with associated increases in premiums as the policy holder got older, or could be

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converted to a permanent plan with fixed premium rates. In 1984 premium rates for the term policies were capped at the age 70 levels. All NSLI enrollments also closed on April 24, 1951.

The NSLI policies identified by the policy number prefix "H" was issued between August 1, 1946, and December 31, 1949, to certain veterans with service-incurred disabilities. This insurance has the same premium rates and policy provisions as "V" insurance except that it is non-participating in dividends.

VETERANS' SPECIAL LIFE INSURANCE: Beginning April 25, 1951, the Insurance Act of 1951 established the Veterans’ Special Life Insurance (VSLI) program, identified by policy number prefix “RS,” for veterans of the Korean Conflict and the immediate post-Korean period. At this time active duty service members were issued a no-cost policy for $10,000 under a program called Servicemen’s Indemnity, which remained in force for 120 days after separation from service. During this 120-day period these veterans could apply for the VSLI $10,000 special term insurance, which also could be renewed indefinitely. Enrollments under the VSLI program closed on December 31, 1956. Beginning in 1959, “RS” policy holders could either convert to a permanent plan or exchange their “RS” policies for a lower premium term policy, identified by policy number prefix “W.” These “W” policies had to be converted to a permanent plan before the veteran reached age 50 or they ceased coverage. In 1989 all remaining “RS” term policies had their premium rates capped at age 70 levels.

SERVICE-DISABLED VETERANS INSURANCE: The Insurance Act of 1951 also established an insurance program for veterans with service-connected disabilities, the Service-Disabled Veterans Insurance (S-DVI) program, identified by policy number prefix “RH”. This program is open to veterans who are adjudicated as having a service-connected disability of any severity (including 0%), and continues to accept new enrollees. The veteran must apply for this insurance within two years from the date of notification that service connection is established for a condition. If the veteran does not apply within that time and service connection is then later established for a new condition, the veteran will have two years from the date of notice of that (new) condition to apply. The normal policy coverage is $10,000; premiums for this may be waived if the veteran becomes totally disabled from any cause prior to age 65.

The veteran may then apply for $20,000 of supplemental coverage (for a total of $30,000), providing application is made within one year from the date the veteran is notified of eligibility for waiver of the basic premium because of total disability. However, the premiums on the supplemental coverage may not be waived. Beginning November 1, 2000, premium rates for “RH” policies were capped at age 70 levels.

VETERANS' REOPENED INSURANCE: Between May 1, 1965 and May 2, 1966, certain disabled veterans who had been eligible to obtain insurance between October 8, 1940 and January 1, 1957 but did not do so were given an opportunity to apply for Government life insurance under the Veterans’ Reopened Insurance (VRI) program, identified by policy number prefixes “J”, “JR”, or “JS”. The disabilities could be either service-connected or nonservice-connected. All policies under this program were permanent plans, no term policies issued. Because the policy holders are disabled, premium rates are higher than standard; the rates vary according to the nature and severity of the disabilities. In October 1977 all premium-paying “JS” policies were declared fully paid-up, and premiums are no longer collected on these policies.

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VETERANS' MORTGAGE LIFE INSURANCE (VMLI): Veterans’ Mortgage Life Insurance (VMLI) is a special mortgage life insurance issued only to those severely disabled veterans who have been issued a Special Adapted Housing grant by VA. Coverage is automatic unless the veteran specifically declines it. The maximum amount of the policy is $90,000, and coverage decreases as the amount of the mortgage decreases. The insurance is payable only upon the veteran’s death, and only to the mortgage lender. VMLI is not available if the veteran is 70 years old or more when eligibility for Special Adapted Housing arises. If the home is refinanced or remortgaged, the maximum amount of insurance will not be reinstated. If the veteran is a part owner of the home, the insurance will cover only the percentage of the title in the veteran’s name. The insurance coverage terminates if the mortgage is fully paid off, or if the veteran terminates ownership of the property securing the mortgage. Beginning December 6, 2002, VMLI no longer automatically terminates upon the veteran’s 70th birthday.

With certain exceptions, all VA policies have provision for waiver of premiums if the policy holder becomes totally disabled prior to age 65. The total disability need not be service-connected, but must last for at least six months. USGLI policy holders who elected the “Endowment at Age 96” option do not have waiver of premiums for total disability. Totally disabled veterans who have “RH” policies may be granted a waiver of premiums for the basic policy ($10,000), but not for any supplemental coverage. Veterans who qualify for VMLI are totally disabled by definition, and there is no waiver of premiums. All USGLI, NSLI, VSLI, and VRI policies except for “RH”, “JR”, and “JS” also have a Total Disability Income Provision, which pays a monthly amount should the insured become totally disabled before age 65.

WAIVER OF PREMIUMS: With certain exceptions, these policies have provisions for waiver of premiums if the policyholder becomes totally disabled prior to age 65. The total disability need not be service-connected, but must last for at least six months. USGLI policy holders who elected the “Endowment at Age 96” option do not have waiver of premiums for total disability. Totally disabled veterans who have “RH” policies may be granted a waiver of premiums for the basic policy ($10,000), but not for any supplemental coverage. Veterans who qualify for VMLI are totally disabled by definition, and there is no waiver of premiums. All USGLI, NSLI, VSLI, and VRI policies except for “RH”, “JR”, and “JS” also have a Total Disability Income Provision, which pays a monthly amount should the insured become totally disabled before age 65.

Insurance premiums which are not waived may be paid in any of several different ways: by direct payment (check or money order payable to VA); by allotment from service pay or military retired pay (if the insured veteran is receiving service pay or military retired pay); by deduction from VA benefits (if the veteran is receiving VA compensation or pension); by automatic deduction from the insured veteran’s checking account (VA MATIC); or by using insurance dividends to pay the premiums.

DIVIDENDS: There are several options for policies that pay annual dividends. Unless specified, dividends will be credited to an interest-bearing account. Options available are direct payment to the policy holder, holding the dividends in an interest-bearing account to be added to the cash value of the insurance, using the dividends to pay the premiums in advance, using the dividends to purchase additional paid-up insurance, or using the dividends to reduce indebtedness by applying them toward a loan or lien on the policy. The policy has a cash value equal to the reserve plus any dividends held on deposit plus interest, less any indebtedness. After the policy has been in force for at least one year with all premiums either

140 paid or waived, the policy may be surrendered for its cash value upon written request. If a policy is surrendered for its cash value, it may not thereafter be reinstated. A loan for up to 94% of the value of the reserve, less any indebtedness, may be made on a policy that has been in force for at least one year with all premiums either paid or waived.

BENEFICIARY: The insured veteran may name any person, persons, or legal entity as the beneficiary to include corporations and estates. If the veteran has more than one policy, the same beneficiary designation(s) applies to each the same unless otherwise stated. If there is more than one beneficiary, the distribution of shares must equal 100%. Principal and contingent beneficiaries must always be clearly identified as such. All beneficiary designations must be in writing and witnessed. The insured veteran retains ownership of the policy(ies) with the right to change beneficiaries regardless of state court orders, property settlements or divorce decrees to the contrary. Ownership of the policy may not be divested from the insured, nor may it be transferred to a trust. If the veteran is adjudged by a court of competent jurisdiction to be incompetent, the legally appointed representative may make a beneficiary designation on the veteran's behalf, with the specific authorization of the court. A veteran adjudged incompetent, during a lucid moment, witnessed by a physician who must make a statement in writing that the insured had the capacity to understand the nature and consequences, may make a beneficiary designation. A last will and testament cannot be used to make a change of beneficiary. It can be used to designate a change in the chosen payment option.

PROCEEDS OPTION: The options for payment of the insurance proceeds can be either a lump sum or in various installments. If the installment option is selected and the beneficiary does not survive the insured, or no beneficiary lives long enough to receive all of the guaranteed installments, any available amounts left over will be paid as a lump sum to the veteran's estate or the last surviving beneficiary for USGLI policies.

When the lump sum option is selected, the proceeds are paid to the beneficiary's estate unless the insured had directed that the proceeds be paid to contingent beneficiaries. If multiple beneficiaries are named, the shares of any beneficiaries who die before the veteran does, the proceeds are paid to the surviving beneficiaries.

SERVICEMEN'S GROUP LIFE INSURANCE: SGLI was instituted in 1965 to meet the insurance needs of the Vietnam-era service member. Although the Government had provided life insurance to the Armed Forces since World War I, the SGLI program of protection took a different approach. Unlike the previous DVA administered programs that provided individually under-written and issued policies, the law creating SGLI provided for group coverage.

Since the program's inception, it has undergone several significant modifications to meet the changing insurance needs of those it was designed to protect. The more notable of these developments have been the program coverage expansions and increases in the maximum amount of coverage. Currently, SGLI provides up to $400,000 (beginning September 1, 2005) life insurance coverage for individuals in military service and for specified periods after separation or release from periods of reserve duty.

Persons who were discharged from service prior to September 1, 2005 and who were enrolled in SGLI continue under the previous limits: VGLI will be issued in increments of $10,000 up to a maximum of $250,000, but not to exceed the amount of SGLI coverage in effect at time of discharge from service.

In June 2001, Congress authorized insurance coverage of a service member’s dependents. Service member’s spouse may be covered up to $100,000 and each service member’s children at $10,000 each.

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Beginning December 1, 2005, an additional special Traumatic Injury Protection (TSGLI) feature is also provided to all service members who are presently covered under SGLI, and will be retroactively provided to service members who received covered injuries while serving in Operation Iraqi Freedom or Operation Enduring Freedom between October 7, 2001 and December 1, 2005. The service member may not decline this coverage unless he/she also declines basic SGLI coverage. Payments will range from $25,000 up to a maximum of $100,000. Covered traumatic injuries include permanent total blindness in one or both eyes; severance of one or both hands, or one or both feet, at or above the wrist or ankle; permanent total deafness in one or both ears; severance of the thumb and index finger of the same hand; 3° burns covering 30% or more of the face, or 30% or more of the body; hemiplegia, paraplegia, or quadriplegia; or coma or inability to carry out activities of daily living due to traumatic brain injury.

VETERANS' GROUP LIFE INSURANCE: VGLI is a program of post-separation insurance which provides for the conversion of SGLI to a five- year term policy. This program, like SGLI, is supervised by the DVA, but administered by the Prudential's Office of Servicemen's Group Life Insurance (OSGLI). Initially, VGLI provided five-year, nonrenewable term coverage to recently discharged veterans and was later extended to members of the Individual Ready Reserve and the Inactive National Guard. At the end of the five-year period, VGLI had to be converted to a commercial permanent plan policy. The policy is issued at standard premium rates regardless of the veteran's health at the time of application. Effective December 1, 1992, VGLI coverage became renewable for life in five year term periods. At the end of any term period, a member had the right to convert the insurance to an individual commercial life insurance policy.

VGLI is issued in multiples of $50,000 up to a maximum of $400,000 but not for more than the amount of SGLI coverage the member had in force at the time of separation from active duty.

FORMS

INSURANCE CLAIMS VA Form 21-22 - Appointment of Veterans Service Organization as Claimant’s Representative (For Example: The American Legion) VA Form 29-336 - Designation of Beneficiary – Government Life Insurance VA Form 29-357 – Claim for Disability Life Insurance VA Form 29-0188 - Application for Supplemental Service Disabled Veterans Life Insurance VA Form 29-1546/1547 - Application for Cash Surrender Value/Application for Policy Loan VA Form 29-4125 - Claim for One Sum Payment VA Form 29-4364 - Application for Service-Disabled Insurance SGLV 8714 - Application for Veterans’ Group Life Insurance Copy of DD-214 Death Certificate

ADDRESSES, TELEPHONES, AND FAX NUMBERS Department of Veterans Affairs The Office of Servicemembers Group Regional Office & Insurance Center Life Insurance PO Box 7208 213 Washington Street Philadelphia, PA 19101 Newark, NJ 07102-2999

Phone: 1-800-669-8477 Phone: 1-800-419-1473 Fax: (888) 748-5822 Fax: (973) 643-8723

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CHAPTER 13

VOCATIONAL REHABILITATION References:

Title 38, U.S. Code, Chapter 31. 38 Code of Federal Regulations, Part 21, Subpart A, §§ 21.1–21.430. Vocational Rehabilitation and Counseling Procedures Manual M28-1. Adjudication Manual M21-1, Part IV, Chapter 23, paragraph 23.09 Adjudication Manual M21-1MR (Manual Rewrite), Part 9, Subpart I, Chapter 1. VA Pamphlets: 28-82-1, Vocational Rehabilitation—Making It All Possible; 80-05-1, Federal Benefits for Veterans and Dependents. http://www.vba.va.gov/bln/vre/index.htm http://www.benefits.va.gov/WARMS/M28R.asp (new as of April 2014)

Summary:

The Vocational Rehabilitation and Employment (VR&E) VetSuccess Program is authorized by Congress under Title 38, Code of Federal Regulations, Chapter 31. It is sometimes referred to as the Chapter 31 program. The program is intended to assist veterans with service-connected disabilities to prepare for, find, and keep suitable jobs. For veterans with service-connected disabilities so severe that they cannot immediately consider work, the program offers services to improve their ability to live as independently as possible.

As of the time of preparation of the current edition of this deskbook, there has been increasing concern about the number of veterans returning from the current conflicts having difficulty obtaining employment. Obtaining suitable employment for a service-connected veteran is worthwhile for everyone. If the service officer has good reason to believe that a service connected veteran would benefit from the program, it is wise to assist with the application and establish the veteran’s eligibility, and if eligible initiate counseling, as soon as practical. One of the key aspects of this program is affording the veteran professional counseling to assist the veteran in training to be able to obtain and retain suitable employment.

Services that may be provided by the VR&E VetSuccess Program include:

• Comprehensive rehabilitation evaluation to determine abilities, skills, and interests for employment • Vocational counseling and rehabilitation planning for employment services • Employment services such as job-training, job-seeking skills, resume development, and other work readiness assistance • Assistance finding and keeping a job, including the use of special employer incentives and job accommodations • On the Job Training (OJT), apprenticeships, and non-paid work experiences • Post-secondary training at a college, vocational, technical or business school • Supportive rehabilitation services including case management, counseling, and medical referrals • Independent living services for Veterans unable to work due to the severity of their disabilities

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The Department of Veterans Affairs (VA) Vocational Rehabilitation program is designed to help a service-disabled veteran overcome employment handicaps imposed by such disability, so that the veteran is able to find and keep suitable employment as well as to achieve maximum independence in daily living. The primary goal of the program is to train disabled veterans for appropriate employment; although education benefits for school attendance may be authorized, if that is determined to be the best way to prepare a particular veteran for entry or re-entry into the labor force, Vocational Rehabilitation benefits must not be viewed as a supplement to or a substitute or replacement for VA education assistance benefits available under other programs. At the time of the latest revision of this desk book, VA’s Vocational Rehabilitation Division was planning to increase the level of assisting veterans in finding employment after completion of the training program.

Eligibility for and entitlement to Vocational Rehabilitation requires that a veteran have service- connected disability or disabilities ratable at 20% or more, and have an employment handicap resulting primarily from such disability. A veteran with a 10% service-connected disability (including multiple noncompensable conditions for which compensation at the 10% rate is paid under 38 CFR § 3.324) may also qualify, on a showing that such disability produces a “serious” employment handicap. Statutory ratings under 38 U.S.C. 1114(k) (loss of a creative organ) or the former subsection (q) (arrested tuberculosis) do not qualify.

The period of eligibility is 12 years from date of discharge from service or 12 years from the date VA first notifies the veteran of a qualifying service-connected disability, whichever is the later. This may be extended for severely disabled veterans who are unable to begin or complete their program within that time because of their disability, or who are determined to have a severe employment handicap such that they require additional time for rehabilitation.

Rehabilitation services may continue until the veteran has reached his or her rehabilitation goal, but the education or training portion of a rehabilitation program may not exceed 48 months, except under exceptional circumstances. VA may continue to provide counseling, job-placement, and post- employment services for up to 18 additional months. Veterans in a Vocational Rehabilitation program of education or training who are also eligible for benefits under one or another VA education and training assistance programs must elect from which program they will draw benefits; concurrent benefits may not be paid under more than one program for the same course of education or training.

A veteran who applies for Vocational Rehabilitation must be entitled to receive compensation (or would be entitled except for the receipt of military retired pay). The application for Vocational Rehabilitation may be submitted together with the application for compensation, or may be filed at any time thereafter, subject to the 12-year time limit. An active duty service member who is hospitalized awaiting separation from service for disability may apply for Vocational Rehabilitation without applying for compensation. The active duty service member must have a service-connectable disability which is immediately ratable at 20% or more to qualify for consideration. To apply, complete VA Form 28-1900.

When an application is received and it is established that a qualifying degree of disability is present, the applicant will be given counseling, testing and evaluation to determine whether an employment handicap exists, and if so, whether training and/or rehabilitation services are feasible or necessary. Rehabilitation programs may include employment (including self-employment) services and assistance; educational (college-level) or vocational (trade, business or technical school) training; apprenticeship or on-job training; or farm cooperative training. For severely disabled veterans there may be training in a rehabilitation facility, in a sheltered workshop, or in-home; the program may also include independent living services and training.

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While in training a veteran will be paid a monthly subsistence allowance, varying according to the type and rate of training, the number of dependents, and other factors. In addition, VA will pay all training expenses, including tuition, fees, books and supplies, and the cost of any necessary tools, equipment, and uniforms. The veteran is also entitled to any and all medical and dental treatment (or reimbursement for the costs of such treatment), including prosthetic devices or other special equipment and special restorative services, necessary to continue or complete his or her program.

When necessary, the veteran may be provided special help such as tutoring assistance, readers for the visually impaired, or sign language interpreters for the hearing impaired. If the veteran encounters unexpected financial difficulties while training, a no-interest loan service is available. VA provides counseling services, including educational, vocational, personal, and employment counseling are available, as well as career planning and job placement services.

A veteran who is rated as totally disabled because of individual unemployability may still apply for and pursue a program of Vocational Rehabilitation without jeopardizing the total disability rating. Even if the veteran is then rehabilitated and able to obtain employment, the total disability rating will continue undisturbed for a minimum of 12 months so the veteran can demonstrate that he or she is able to maintain substantially gainful employment, and is no longer unemployable.

A veteran who is eligible for an evaluation under Chapter 31 must first apply for services and receive an appointment with a Vocational Rehabilitation Counselor (VRC). The VRC will work with the Veteran to determine if an employment handicap exists as a result of his or her service connected disability. If an employment handicap is established and the veteran is found entitled to services the VRC and the veteran will continue counseling to select a track of services and jointly develop a plan to address the Veteran's rehabilitation and employment needs.

The rehabilitation plan will specify an employment or independent living goal, identify intermediate goals, and outline services and resources that VA will provide to assist the Veteran to achieve his / her goals. The VRC and the Veteran will work together to implement the plan to assist the Veteran to achieve his or her employment and / or independent living goals.

If a veteran is found not to be entitled to services, the VRC will help him or her locate other resources to address any rehabilitation and employment needs identified during the evaluation. Referral to other resources may include state vocational rehabilitation programs; Department of Labor employment programs for disabled veterans; state, federal or local agencies providing services for employment or small business development; internet-based resources for rehabilitation and employment; and information about applying for financial aid.

VOCATIONAL REHABILITATION

A few years ago VA published an almost entirely new Vocational Rehabilitation Manual: http://www.benefits.va.gov/WARMS/M28R.asp Of particular interest is the chapter on veterans’ rights and responsibilities: http://www.benefits.va.gov/WARMS/docs/admin28/M28R/Part_III/III_C_2.pdf http://www.vba.va.gov/bln/vre/index.htm http://www.benefits.va.gov/vocrehab/vsoc.asp VA Form 28-1900 - Application for Vocational Rehabilitation

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CHAPTER 14 --- VETERANS’ EDUCATIONAL ASSISTANCE

References:

Title 38, U.S. Code, Chapters 30 and 32. Title 10, U.S. Code, Chapters 1606 and 1607 38 Code of Federal Regulations, Part 21, Subparts G, K, and L, §§ 21.5001–21.5300 and §§ 21.7000–21.7810. http://www.benefits.va.gov/warms/M22_4.asp http://www.gibill.va.gov/benefits/post_911_gibill/index.html

VA Pamphlets: 22-79-1, Summary of Educational Benefits Under the Post–Vietnam Era Veterans Educational Assistance Program, Chapter 32 of Title 38, U.S. Code, and the Educational Assistance Pilot Program, Section 903 of Public Law 96-3420 22-90-2, The Montgomery GI Bill—Active Duty 22-90-3, The Montgomery GI Bill—Selected Reserve 22-05-1, Reserve Educational Assistance Program (REAP) 80-05-1, Federal Benefits for Veterans and Dependents. http://benefits.va.gov/BENEFITS/benefits-summary/SummaryofVAEducationBenefits.pdf [this pamphlet provides a very good summary of most of the available programs] http://www.benefits.va.gov/gibill/handouts_forms.asp

On February 4, 2014 .VA launched a new GI Bill Comparison Tool designed to make it easier for Veterans to calculate their Post-9/11 GI Bill benefits and learn more about colleges, universities and other education and training programs across the country. The tool is designed to enable student Veterans and their families to compare education options and make informed choices that will help them reach their educational goals and find a good job.

http://department-of-veterans-affairs.github.io/gi-bill-comparison-tool/

Summary:

The Department of Veterans Affairs (VA) will provide an education assistance allowance for eligible veterans, active duty service members, and members of the Selected Reserve, and to certain civilians and family members who are covered under the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Public Law 99-399) and Executive Order 12598.

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For veterans, there are currently two programs available: 38 U.S. Code, Chapter 30 (also called the All Volunteer Force Educational Assistance Program or the Montgomery GI Bill), and 38 U.S. Code, Chapter 32 (also called Post-Vietnam Era Veterans’ Education Assistance Program or VEAP). Chapter 32 is the older of the two programs. Both of these programs are also available for active duty personnel, but those cases would normally go through the Base or Post Education Office and County Veterans Service Offices would not be involved, so specific features for active duty service persons are not discussed here.

For eligibility under Chapter 32, the veteran must have entered service on or after January 1, 1977, but before July 1, 1985. There is a minimum length of service requirement: originally the veteran was required to serve at least 181 continuous days, but veterans whose original enlistment was after September 7, 1980 or who entered onto active duty after October 16, 1981 (either as an officer or an enlisted member) are required to have served either 24 continuous months or the full period for which the member was called or ordered to active duty, whichever was the shorter. The minimum length of service requirement does not apply if the veteran was discharged because of hardship; was discharged under an early-out program; was discharged because of a service-connected disability; or is determined to have a service-connected disability of compensable severity. The discharge must be honorable or general under honorable conditions. The veteran has 10 years from the date of final discharge from the period of qualifying service to use the benefits; this period may be extended if the veteran re-enters active service for at least 90 days, or is prevented from training because of a disability (including the disabling effects of chronic alcoholism).

For eligibility under Chapter 30, the veteran must have entered service on or after July 1, 1985. The minimum length of service is 36 months of continuous service unless the term of service was less than three years, in which case the minimum is 24 months of continuous service. The minimum length of service requirements do not apply if the veteran is discharged because of hardship; is discharged for the convenience of the Government; is discharged for disability; is discharged because of a non-disabling medical condition which interferes with performance of duty; or is discharged because of a reduction in force. While on active duty, the veteran must have either completed the requirements for a high-school diploma or equivalency certificate or completed 12 hours towards a college degree. The discharge must be honorable; a general discharge under honorable conditions does not establish eligibility. The veteran has 10 years from the date of final discharge from the period of qualifying service to use the benefits; this period may be extended if the veteran re-enters active service for at least 90 days or is prevented from training because of a disability (including the disabling effects of chronic alcoholism) or because of being held by a foreign government or power.

Both Chapter 30 and Chapter 32 require that while on active duty the veterans contribute specified amounts of his or her salary to an education fund account. If the veteran did not contribute, or withdraws his or her contributions (Chapter 32 only), there is no eligibility for education assistance. Amounts withheld for Chapter 30 are not refundable. Both programs entitle the veteran to 36 months of benefits, except that under Chapter 30 if the veteran is discharged prior to completing the full enlistment period for any reason other than convenience of the Government, entitlement accrues at the rate of one month for each month served.

The Montgomery GI Bill also established an Educational Assistance program for members of the Selected Reserve of the Ready Reserves (includes the Army National Guard and the Air National Guard) under Title 10, U.S. Code, Chapter 1606. Eligibility for this program requires that beginning on or after July 1, 1985. The Reservist agrees to serve a six-year obligation in the Selected Reserve (an

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officer must agree to serve six years in addition to any other obligation). The Reservist must have completed initial active duty for training and must already meet the requirements for a high school diploma or equivalency certificate. The Reservist must drill in a drilling Selected Reserve unit and remain a member in good standing of the unit.

The Post-9/11 GI Bill is for individuals with at least 90 days of aggregate service on or after September 11, 2001, or individuals discharged with a service-connected disability after 30 days. You must have received an honorable discharge to be eligible for the Post-9/11 GI Bill. The Post-9/11 GI Bill will become effective for training on or after August 1, 2009. This program will pay eligible individuals: http://gibill.va.gov/benefits/index.html

Previously, an eligible Reservist was not required to contribute any part of his or her salary to the education fund account. However, Public Law 108-454 now requires that Reservists who are called to active duty and who serve on active duty for two years or more must contribute $1,200 to the education fund account within one year from the date he or she has completed two years of active duty for full eligibility.

There is a new program under 10 USC, Chapter 1607, called the Reserve Educational Assistance Program (REAP), for members of the Selected Reserves, the Individual Ready Reserves, and the National Guard who have been called to active duty since September 11, 2001. This is a combined program, jointly administered by VA, the Department of Defense, and the Department of Homeland Security. Basic eligibility under this program requires that the Reservist or Guard member must have been called to active duty under 10 U.S. Code or 32 USC 502(f) (for National Guard), and have served on active duty for at least 90 consecutive days. Members who serve less than 90 consecutive days but who are released from active duty because of service-connected disability are also eligible. There is no fixed ending date for eligibility, except for members of the Ready Reserve who are released from active duty for disability not due to willful misconduct—in these cases, the period of eligibility ends 10 years from the date eligibility was initially established. For all others, eligibility continues so long as the member continues to serve in the same Reserve component or the National Guard, except that a member called up from the Selected Reserve would not remain eligible if the member then went into the Individual Ready Reserve.

An eligible Reservist under either Section 1606 or 1607 is entitled to 36 months of education assistance benefits under that program, or if entitled under more than one program, to a maximum of 48 months under all programs combined.

Under Chapter 1606, a Reservist has 10 years from the date he or she first becomes eligible under this program to use the benefits, provided he or she remains in the Selected Reserve during this time. The 10-year period may be extended if the Reservist is unable to train because of a disability caused by service in the Selected Reserve. If the Reservist is called to active duty, the period of eligibility will be extended by the length of the period of active duty service plus four months. Even if the Reservist leaves the Selected Reserve, he or she may still have the full 10-year period of eligibility, provided:

• That he or she has a disability not due to misconduct; or • He or she was involuntarily separated under provisions of 10 U.S. Code, Section 286(b), during the period October 1, 1991 through September 30, 1999; or • The unit was inactivated during the period October 1, 1991 through September 30, 1999. An eligible Reservist is entitled to 36 months of education assistance benefits.

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For certain survivors of active duty service members and veterans who met service and other requirements and who had contributed to the education fund while on active duty (even if the full $1,200 had not been contributed at the time of death), but who had died before their contributions were used, there is provision for payment of the unused portion to a designated survivor (the Montgomery GI Bill (MGIB) death benefit). The service member must have died on active duty, in line of duty; a veteran separated from service must have died within one year of separation from active duty, from service- connected causes.

The amount available is reduced by any amounts already paid out for education purposes; if the full $1,200 had not yet been collected, only the amount actually collected is available. If the veteran died after service, the amount available is reduced by the amount of any accrued benefits paid or payable, whether the accrued is education benefits or other payments.

The proper claimant for this benefit is:

1. The designated SGLI beneficiary; 2. If there is no SGLI beneficiary designated, the veteran’s spouse; 3. If there is no spouse, the veteran’s children, in equal shares; or 4. If there are no children, the veteran’s parents, in equal shares.

If there is no claimant in any of these categories, the benefit is not payable.

Exclusive jurisdiction of MGIB death benefit cases is under the VA Regional Office, P.O. Box 66830, St. Louis, Missouri, and claims for the MGIB death benefit should be directed there. There is no specific application; any written communication will suffice.

A copy of DD-1300, Report of Casualty, or death certificate (as appropriate) should accompany the latter. If the claimant is not the designated SGLI beneficiary, proof of relationship should also be sent.

VA also provides educational benefits for Civil Service employees of the United States and certain other civilians who were rendering personal services to the United States similar to a Civil Service employee, who were taken into captivity by a hostile power because of that relationship with the United States and subsequently released. Benefits are also available to family members of persons held in captivity under such circumstances or to family members of persons who die while in captivity under such circumstances. Determinations as to eligibility under these provisions are made by the Director General of the Foreign Service, Department of State. If eligibility is established, the former captive has 10 years from the date of release from captivity to use the benefits. A spouse will become eligible for benefits from the 91st day of captivity and continuing until 10 years from the date of release of the captive or 10 years from the date of death of the captive. Children will become eligible for benefits on the 91st day of captivity, but eligibility ends the date the captive is freed or released from captivity. Further, children are not eligible for benefits beyond age 21. An eligible person under this program has 45 months of entitlement to benefits. No contributions are required.

If a person has eligibility to benefits under more than one education or training program, including also Vocational Rehabilitation or Dependents’ Education Assistance, the maximum amount of entitlement allowed under all programs combined is 48 months. The veteran or eligible person must elect under which program benefits are to be paid for any given course or entitlement period. All programs charge entitlement to benefits at the rate of one day of entitlement per one day of full-time training; the

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entitlement charges are pro-rated for training at less than full-time. Under certain circumstances, some of the programs will not make a charge against entitlement for certain types of training. The monthly rates payable vary according to the particular program, the type of training (institutional, apprenticeship, etc.), and the rate of training. Under certain circumstances, veterans training under Chapter 30 may be entitled to additional amounts for dependents, if training at the half-time rate or greater; except for veterans training under Vocational Rehabilitation, no other veterans or eligible persons are entitled to payment for dependents under any of the programs.

All of the programs allow essentially similar types of training: Degree programs at a college or university; independent courses of study; certificate programs from a trade, business, or vocational school; apprenticeship or on-job training programs; farm cooperative training programs; high school level programs (Chapter 32 veterans, former captives and spouses); remedial, refresher, or deficiency courses; correspondence courses; vocational flight training (except former captives and family members).

None of the programs will pay benefits for self-improvement courses, courses given by radio or entirely by television, bartending courses, audited courses, repeats of courses previously successfully completed, or courses not leading to an educational, professional or vocational objective.

Jurisdiction over all education and training programs (except for Vocational Rehabilitation) is centralized, and claims for such benefits must be forwarded to the proper office of jurisdiction.

The VA Regional Office, Baltimore, Maryland, has exclusive jurisdiction of education and training claims from former captives and their family members under Public Law 99-399 and Executive Order 12598.

All of the other programs are under the jurisdiction of one of five Regional Offices depending on the veteran’s, service person’s, or Reservist’s address and/or place of training, as follows:

• Eastern Region—VARO Buffalo, New York

• Southern Region (includes Puerto Rico and the Virgin Islands)—VARO Decateur, Georgia

• Central Region—VARO St. Louis, Missouri

• Western Region (includes all U.S. Pacific islands except for the Philippines)— VARO Muskogee, Oklahoma

• Republic of the Philippines—VARO Manila

VetSuccess on Campus The Department of Veterans Affairs (VA) has been developing innovative ways to help Veterans make the transition to college life. The VetSuccess on Campus (VSOC) program aims to help Veterans, Servicemembers, and their qualified dependents succeed and thrive through a coordinated delivery of on-campus benefits assistance and counseling, leading to completion of their education and preparing them to enter the labor market in viable careers. Read the VetSuccess on Campus (VSOC) fact sheet.

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The VSOC program provides a VA Vocational Rehabilitation Counselor (VRC) to each VSOC school. These VRCs are called VetSuccess on Campus (VSOC) Counselors. A VA Vet Center Outreach Coordinator is also provided, and co-located on many campuses, to provide peer-to-peer counseling and referral services.

Through the VSOC program, VA is strengthening partnerships with institutions of higher learning and creating opportunities to help Veterans achieve success by providing outreach and transition services during their transition from military to college life. VSOC Counselors ensure that Veterans receive the support and assistance needed to pursue their educational and employment goals. Because VSOC Counselors are easily accessible on campus they help resolve any problems that could potentially interfere with a Veteran's educational program, to include assisting with disability accommodations. If needed, they can also provide referrals for health services through VA Medical Centers, Community- Based Outpatient Clinics, or Vet Centers.

The VSOC program began as a pilot program in 2009 at the University of South Florida. The VSOC program expanded to 32 schools by the end of Fiscal Year 2012. In Fiscal Year 2013, the VSOC program expanded again to an additional 62 campuses, bringing the total number of VSOC sites to 94. VSOC Locations and VSOC Counselor Contact Information: http://www.benefits.va.gov/vocrehab/vsoc.asp

FORMS Education Benefits Chapter 30/32 (Entered service after January 1, 1977) VA Form 22-1990 – Application for VA Education Benefits VA Form 22-1999 (school certifying official completes this form) Certified DD 214 VA Form 21-22 – Appointment of Veterans Service Organization as Claimant’s Representative Chapter 30 (Entered service before January l, 1977, has education assistance entitlement remaining under Vietnam Era GI Bill) VA Form 22-1990 – Application for VA Education Benefits VA Form 22-1999 – Enrollment Certification (school certifying official completes this form) VA Form 21-22 – Appointment of Veterans Service Organization as Claimant’s Representative Certified DD 214 (all, if more than one) VA Form 21-686c – Declaration of Status of Dependents Dependents Social Security Numbers

Possible documents needed: Marriage Certificate Birth Certificate of all minor children Divorce decrees of previous marriages for veteran and spouse

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CHAPTER 15 DEPENDENTS’ EDUCATIONAL ASSISTANCE

References:

Title 38, U.S. Code, Chapter 35. 38 Code of Federal Regulations, Part 21, Subparts C and D, §§ 21.3020–21.4280. Education Procedures Manual M22-4, Part 7 VA Pamphlets 22-73-3, Summary of Educational Benefits, Dependents’ Educational Assistance Program and Federal Benefits for Veterans and Survivors. 80-05-1, Federal Benefits for Veterans and Dependents http://www.benefits.va.gov/gibill/survivor_dependent_assistance.asp http://www.benefits.va.gov/gibill/docs/pamphlets/ch35_pamphlet_2.pdf [this is a very informative pamphlet]

Summary:

VA will provide an education assistance allowance to the spouse, surviving spouse, or child of a veteran who is rated permanently and totally disabled from service-connected disability; who died in service or as the result of a service-connected disability; who died from any cause not the result of willful misconduct and who at the time of death was rated as being permanently totally disabled from service- connected causes; or an active duty service member who is listed as being missing in action or a prisoner of war for more than 90 days or who is forcibly detained or interned in line of duty by a foreign Government or power.

Generally, the eligible person will be entitled to 45 months of assistance under this program. If there is eligibility under more than one education assistance program, the maximum combined entitlement is 48 months. Entitlement is charged at the rate of one day of entitlement for one day of class or training, if attending school or training at a full-time rate. Entitlement charges are pro-rated if the eligible person attends school at less than full-time, and under certain circumstances there may be no charge to entitlement.

Effective Oct. 1, 2013, some DEA beneficiaries may be eligible for up to 81 months of GI Bill benefits if they use the Survivors and Dependents Educational Assistance program in conjunction with an entitlement from other VA education programs. View current payment rates.

Counseling is available to help dependents determine career goals and how to best use their VA dependents’ education benefits. For dependents needing special assistance to accommodate a disability prior to or during the pursuit of vocational training, VA can provide assessment and rehabilitation planning to help identify suitable training programs and the resources available to succeed. Although students under this program most commonly pursue institutional courses such as collegiate studies, business or vocational schools, etc., benefits may also be paid for apprenticeships, on-job

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training programs, or farm cooperative courses, also for secondary school courses leading to a high school diploma or remedial courses to qualify for college admission.

Assistance may be authorized for overseas study, but only if the courses lead to a college degree. Spouses and surviving spouses, but not eligible children, may take correspondence courses.

Payments are made monthly, and are based on the rate of attendance or training (full-time, three-quarter time, etc.). Since payment under Chapter 35 is predicated on recognition as a veteran’s dependent for basic eligibility, there are no additional amounts payable for the student’s dependents. Marriage of the veteran’s child does not affect eligibility for education assistance under this program, but if the veteran’s spouse is divorced or the surviving spouse remarries, eligibility to education assistance ceases. The Veterans Benefits Act of 2003 provides that remarriage of the surviving spouse after 57 is not a bar to benefits.

An eligible person may not receive education assistance under Chapter 35 while serving in the Armed Forces, and must be discharged under honorable conditions to resume benefits upon separation from service. If the eligible person has eligibility under more than one education assistance program, he or she must elect which benefit he or she will receive for any given program or enrollment period.

There are significant differences in the length of periods of eligibility for children and for spouses or surviving spouses: Generally, a child is eligible between age 18 or completion of high school, whichever is earlier, and age 26. If eligibility arises after age 18 but before age 26, the child will be eligible for education assistance for a period of eight years (ten years if pursuing an apprenticeship or a program of on-job training), but not beyond age 31. If the child interrupts training to serve in the Armed Forces or for other reasons beyond the child’s control, the period of eligibility may be extended by an amount equal to the length of the interruption, but not beyond age 31. Regardless of the basis, eligibility may not first arise after the child’s 26th birthday. After the child’s 18th birthday, education assistance under Chapter 35 may NOT be paid concurrently with compensation, pension, or Dependency and Indemnity Compensation based on school attendance.

A veteran’s spouse is eligible for education assistance for 10 years from the date permanent total disability arose or 10 years from the date of notice of permanent total disability, whichever is to the spouse’s advantage. If the veteran dies while on active duty, Public Law 108-454 now extends the period of eligibility for a surviving spouse from 10 years to 20 years from the date of the veteran’s death in service. If a veteran dies from service-connected causes after service, the surviving spouse is eligible for 10 years from the date of the veteran’s death or 10 years from the date of notice that the veteran’s death was service-connected, whichever is to the surviving spouse’s advantage. If eligibility arises based on the veteran being rated permanently totally disabled at the time of death from nonservice-connected causes, the period of eligibility is 10 years from the date of the veteran’s death.

If eligibility is based upon an active duty service member being missing in action, a prisoner of war, or being forcibly held by a foreign government or power, the period of eligibility runs for 10 years after the 90th day of being listed in such status. A surviving spouse who had eligibility as the spouse of a permanently totally disabled veteran before the veteran’s death will be entitled to a new 10-year period of eligibility from the date of the veteran’s death, regardless of any eligibility prior to the veteran’s death.

If the spouse or surviving spouse is unable to complete a program of education or training during the applicable 10-year period because of mental or physical disability (including the disabling effects of

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If a permanently totally disabled veteran remarries, whether because of the death of or divorce from the previous spouse, the new spouse is eligible for education assistance for a period of 10 years from the date of the marriage and has 45 months of entitlement, unless the new spouse is also entitled to education assistance under another VA education or training program. In that event, the spouse’s total combined entitlement again may not exceed 48 months. There is no bar to simultaneous payment of Chapter 35 benefits and payment of compensation, pension, or Dependency and Indemnity Compensation as a spouse or surviving spouse.

An eligible spouse or surviving spouse may also qualify for a VA education loan, if all of the following requirements are met:

• The eligible person’s delimiting date for education benefits eligibility must have passed; • There must have been unused entitlement remaining when the delimiting date passed; • The eligible person must have been enrolled full-time when the delimiting date passed; • The eligible person must be enrolled full-time for the period for which the loan is requested; • The eligible person must have been denied a loan under the Guaranteed Student Loan Program; • The eligible person must meet specified financial criteria regarding income, resources, and school-related expenses; and • The eligible person must not have any outstanding indebtedness because of a prior VA overpayment.

The amount of the loan is based on a formula tied to income, school expenses, and the amount of remaining entitlement. The maximum loan amount may not exceed $2,500 per academic year.

An eligible disabled (helpless) child whose mental or physical disability precludes pursuit of an educational program may receive Special Restorative Training under Chapter 35. Under certain circumstances, this special training may be provided for more than 45 months, but not beyond the child’s 31st birthday. In addition, an eligible disabled child over the age of 14 or an eligible disabled spouse or surviving spouse may receive Specialized Vocational Training, leading to a suitable vocational objective for the particular disability. When a child has been determined to be “helpless,” there is no bar to concurrent payment of benefits for special training under Chapter 35 and compensation, pension, or Dependency and Indemnity Compensation, because these payments are based on the child’s disability, and not on school attendance after age 18.

Determinations of eligibility to education assistance under Chapter 35 are made by the VA Regional Office having jurisdiction of the veteran’s claims file. However, once eligibility is established, the eligible child’s or spouse’s claim comes under the jurisdiction of one of five centralized locations, depending on where the eligible person is attending school or being trained. These are:

• Eastern Region—VARO Buffalo, New York • Southern Region (includes Puerto Rico and the Virgin Islands)—VARO Decatur, Georgia • Central Region—VARO St. Louis, Missouri • Western Region (includes all U.S. Pacific islands except for the Philippines) VARO Muskogee, Oklahoma • Republic of the Philippines—VARO Manila

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The application process has essentially three steps: with your help, the dependent needs to

Make sure that the selected program is approved for VA training. VA can inform the dependent, you and the school or company about the requirements. [Most accredited institutions of higher learning (IHLs)(universities, colleges, junior/community colleges) are approved for VA training, and many of these institutions have VA benefit coordinators(titles vary, of course)who can be of material assistance with this process]

Obtain and complete VA Form 22-5490, Dependents Application for VA Education Benefits. Send it to the VA regional office with jurisdiction over the state where the dependent will advance his/her education and training. If the dependent is under legal age, a parent or guardian must sign the application.

If the dependent has started the educational program, he/she should take the application to the school or employer, and ask them to complete VA Form 22-1999, Enrollment Certification, and send both forms to VA. (Note: Schools must contact their VA representative to receive this form.)

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CHAPTER 16

DEBT MANAGEMENT: COMMITTEE on WAIVERS and COMPROMISES

References:

Title 38, U.S. Code, Section 1505; Chapter 53. 38 Code of Federal Regulations §§ 1.900–1.970; §§ 3.665, 3.666. Adjudication Manual M21-1, Part IV, Chapter 24. Adjudication Manual M21-1MR, Parts 3, 4, 5, and 10 VA Financial Policy Manual MP-4. http://www.va.gov/finance/policy/pubs/volumeXI.asp

http://www.va.gov/finance/docs/VA-FinancialPolicyVolumeXIChapter04.pdf

Summary:

1. Debt Management, Committee on Waivers and Compromises:

VA benefits are either direct monetary payments (compensation, pension, or educational assistance)or the furnishing of goods or services having a monetary value (loan guaranty or health care). In either case, it happens from time to time that a beneficiary will be paid more than he or she is entitled, or is furnished goods or services to which he or she is not entitled or beyond the limits of entitlement. In loan guaranty cases, the beneficiary may default on the loan and the property goes into foreclosure, leaving VA liable for the amount of the guarantee. When any of these happen, an overpayment is established and the beneficiary is indebted to the Government.

Whenever an overpayment is established in any program under the jurisdiction of the Veterans Benefits Administration (VBA), the Debt Management Center at the St. Paul, Minnesota, VA Regional Office assumes jurisdiction under the Centralized Accounts Receivable System (CARS). If the debtor is in receipt of compensation or pension benefits, the Debt Management Center will also handle first party medical debts over 90 days old owed to the Veterans Health Administration (VHA), generally from non- payment of required co-payments.

The Debt Management Center will send a notice to the debtor of the existence and amount of the overpayment (or debt) and demanding repayment. If the debt is a loan guaranty default, the notice is sent by Certified Mail (Return Receipt Requested). The notice will advise the debtor that if he or she is presently receiving benefits, those benefits may be automatically withheld to recover or offset the amount of the overpayment unless the debtor responds within 30 days of the date of the notice, either agreeing to repay the debt or offering a compromise, or disputing the fact and/or amount of the debt, or requesting a waiver of the overpayment. If the debtor does not respond to this first letter, withholding of benefits is automatically initiated. If there is no response to the first notice and there are no benefits to offset, second and third notices are sent, at 30-day intervals, advising the debtor that failure to repay or

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settle the debt will result in the debtor’s name being referred to credit reporting agencies and/or the Treasury Department for collection.

If the debtor responds within 30 days of the first letter, no withholding of benefits will be instituted pending the outcome and disposition of the debt. To be sure that it is timely received by VA, duplicate copies of the debtor’s response should be sent to both the Debt Management Center and to the Regional Office (or Medical Center) of jurisdiction. Veterans owing more than $25 at least 90 days overdue who are also receiving Social Security benefits may have their Social Security benefits offset. This will apply only to those veterans receiving Social Security benefits of more than $750 per month. Of the amount over $750, 15% can be withheld.

Under certain circumstances, VA will charge interest and/or administrative costs on delinquent debts, which are defined as being more than 30 days old. Loan guaranty debts are charged interest at the rate of 4% per year, but are not charged administrative costs. Education overpayments may be charged both interest and administrative costs, at variable rates. Compensation and pension overpayments do not accrue either interest charges or administrative costs.

If the debtor is willing to make repayment of the debt, a lump sum payment is preferred but installment payments of a reasonable amount for a reasonable period of time will be accepted. If the beneficiary disputes either or both the fact or the amount of the overpayment, the office of jurisdiction will verify the overpayment. If the debtor requests a waiver, a determination as to the validity of the debt must also be done before the waiver request is considered. The debtor may request a personal hearing at any point in the process.

A waiver request must be in writing, and should explain why the debtor feels he or she should not be held responsible for the debt. The request should also include a statement as to any financial hardship recovery of the debt might cause, or any other circumstance which would cause collection or recovery of the debt to be inequitable. The request must be accompanied by a completed VA Form 20-5655, Financial Status Report.

In all cases except for loan guaranty defaults, the time limit for requesting waiver of an overpayment is 180 days from the date the debtor is first advised of the existence of the overpayment; in loan guaranty cases, the debtor has one year from the date of receipt by Certified Mail (Return Receipt Requested) of the notice of indebtedness to request a waiver. If the waiver request is received more than 30 days after the date of the initial notice, however, any withholding of benefits begun will continue until the issue has been finally resolved. If the waiver is granted, the withheld benefits would then be refunded.

A waiver may be requested by the debtor or representative or any other interested party on the debtor’s behalf. If the waiver is denied, the debtor may appeal the denial to the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims.

In general, waiver of a debt will usually be granted if there is a showing that collection of the debt would be against equity and good conscience. Factors considered in this determination include whether the debtor was entirely at fault in creation of the overpayment, or was there also fault on the part of VA; would collection of the debt, including withholding of benefit payments, produce undue hardship on the debtor or defeat the purpose for which the benefit was intended; would waiver of the debt result in unjust enrichment of the debtor; or has the debtor’s reliance on VA benefits resulted in the

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relinquishment of a valuable right or incurrence of a legal obligation which would be impaired by collection of the debt.

A waiver will be granted if the overpayment is the result of VA administrative error: that is, the beneficiary was completely without fault in the creation of the overpayment; the agency had the correct information but erroneously authorized an incorrect amount and the beneficiary either attempted to notify VA that the amounts paid were wrong, or relied in good faith on the agency’s assurance that the amounts paid were correct.

Waiver of a debt is precluded if there is evidence of fraud or misrepresentation of material facts, or if there is evidence of bad faith or lack of good faith.

Certain types of debts or overpayments may not be waived, such as the cost of medical emergency or humanitarian services (may only be compromised) or where there is a statutory bar against payment, such as simultaneous payment of compensation and military retired pay. In addition, debts resulting from erroneous payment of benefits to a person who is not a payee and has no claim or entitlement to such payments may not be waived.

Waiver of an overpayment in an education assistance claim will result in a loss of future entitlement to education benefits equal to the amount waived. To regain the entitlement, the debt must be paid in full. In a loan guaranty or direct loan case, a waiver of the debt counts as entitlement used; the total debt must be paid in full to restore the previous entitlement.

The indebted person may make a compromise offer at any time in the collection process. This is an offer to pay some portion of the debt in a lump sum, in exchange for forgiveness of the balance. The compromise offer must be in writing and must be accompanied by a completed VA Form 5655, Financial Status Report. The offer must be sent to the Debt Management Center, which has jurisdiction of compromise offers. There is no time limit for making a compromise offer. A compromise offer may be considered even if waiver of the debt has been denied. Rejection or denial of a compromise offer may not be appealed to the Board of Veterans’ Appeals; however, rejection of a compromise offer does not preclude submitting additional offers.

In agreeing to repay the indebtedness, a lump sum payment is preferred. Installment payments of a reasonable amount for a reasonable period of time will be accepted.

Veterans owing more than $25 at least 90 days overdue could see an offset in their Social Security benefits. This will apply only to those veterans receiving Social Security benefits of more than $750 per month. Of the amount over $750, 15% can be withheld.

Factors for consideration in a compromise offer include whether the debtor would be able to repay the entire amount of the debt within a reasonable time given the debtor’s age, health, present and potential income, and availability of assets; also, whether the amount of the debt would justify the costs of litigation or other means of collection. If a compromise offer is accepted in an education overpayment, entitlement will be charged for the portion of the overpayment written off by VA. If a compromise offer is accepted for a loan guaranty debt, the compromised amount must also be paid in full to restore entitlement.

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2. Incarcerated Veterans, Fugitive Felons:

Federal Law prohibits payment of Federal benefits, including VA benefits, Social Security benefits, etc., to persons who are incarcerated because of conviction of a crime, or who are in a fugitive status to avoid arrest, prosecution, or incarceration for a felony. Listings of possibly affected persons are received periodically from the U.S. Bureau of Prisons, from Social Security matches, and from other sources. For VA beneficiaries, the rules will vary with the type of benefit being received.

a. For persons receiving compensation or DIC who are incarcerated because of conviction of a felony, the benefit payable is reduced to a minimum amount beginning the 61st day of incarceration following the conviction:

• For veterans receiving compensation for disability rated 20% or more overall, the compensation payable is reduced to the 10% rate. • For veterans receiving compensation for disability rated 10% overall, the compensation pay- 1 able is reduced to /2 the 10% rate. 1 • For beneficiaries receiving DIC, the DIC payable is reduced to an amount equal to /2 the 10% compensation rate.

The conviction must be for a felony. The 60-day clock does not start to run until the conviction has been officially entered by the court—neither confinement awaiting trial, nor confinement for examination or treatment, nor confinement for any other purpose may be counted. The person must be incarcerated in a federal, state, or local penal institution; incarceration outside the United States does not trigger reduction of benefits.

Full due process procedures must be observed before VA benefits can be reduced or terminated on this basis. This will create an overpayment. If there are any eligible dependents, they may request an apportionment of available benefits while the veteran or beneficiary is incarcerated. A showing of need is required for such apportionment. No apportionment may be made if the dependent is himself/herself convicted of a felony and incarcerated for more than 60 days.

The veteran or beneficiary will have full benefits restored and (generally) any apportionments terminated effective the date of release from incarceration, provided official notice of the release is received within one year from the date of such release.

b. If a veteran or beneficiary to whom or for whom NSC pension (disability or death) is being paid under any provision of 38 USC, Chapter 15 is incarcerated because of conviction of any crime, whether a felony or a misdemeanor, pension will be discontinued beginning the 61st day following conviction. As above, the veteran, beneficiary, or dependent must have been convicted, not merely confined; also, the conviction and incarceration must be in the United States.

Also as above, full due process procedures must be observed before benefits may be reduced or terminated. This will create an overpayment. If the veteran is entitled to both compensation and pension, then on the 61st day following conviction his/her award is switched to compensation and comes under the rules set out in Part a, above. If the conviction was not for a felony, then no further action is required or taken.

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If there are eligible dependents, they may request an apportionment of the pension: If the benefit being paid was disability pension, the dependent’s income must be within limits for death pension. The rate(s) to be paid will be either the death pension rate or the disability pension rate, whichever is less, for that income level. If the benefit being paid was death pension, then the award and income limits will be adjusted as though the imprisoned beneficiary or dependent did not exist.

Pension payments to or for the incarcerated veteran, beneficiary, or dependent may be resumed upon release from incarceration, provided official notice of the release and current income information to show continued entitlement to pension are received within one year from the date of release. c. Neither compensation nor pension nor DIC may be paid to, or on behalf of, any veteran, dependent, or other beneficiary who is a fugitive felon, for any period during which he or she is a fugitive. A fugitive felon is defined as a person who flees to avoid arrest, prosecution, and/or imprisonment following conviction of a felony under the laws of the place from which the person flees. It includes a person who violates a condition of probation or parole imposed for commission of a felony under either State or Federal law. It also includes any person who has an outstanding warrant for a felony offense, regardless of whether that person is literally “fleeing.” A “felony” for this purpose also includes certain offenses characterized as “high misdemeanors” under state laws, which would be felony offenses under Federal laws. This applies in all cases, regardless of the benefit involved.

When official notice is received that a veteran, dependent, or other beneficiary is a fugitive felon, due process procedures must be observed before benefit payments may be terminated. This will create an overpayment. ALL benefits payments based on the veteran’s or beneficiary’s account must be terminated, to include any running apportionment awards, also independent awards such as education assistance under 38 USC, Chapter 35.

If the benefit being paid is either DIC or death pension, and the fugitive felon is the veteran’s surviving spouse, and there are children who would have independent entitlement if there was no surviving spouse (regardless of custody), then payments may be made to or for those children on that basis, for such time as the surviving spouse remains disqualified and the children remain entitled. In all other cases, benefit payments may not be resumed unless and until official notice is received that all outstanding warrants have been quashed, cancelled, or otherwise resolved.

http://www.va.gov/DEBTMAN/Submit_A_Waiver_Request.asp

FORMS

VA Form 21-4138 - Statement in Support of Claim

VA Form 20-5655 - Financial Status Report

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CHAPTER 17

Appellate Processing

References:

Title 38, U.S. Code, Chapters 59, 71 and 72. 38 Code of Federal Regulations, Part 3, §§ 3.102–3.105 and § 3.2600; Parts 19 and 20. M21-1MR, Part I, Chapter 5 http://www.bva.va.gov/ http://www.bva.va.gov/How_Do_I_APPEAL.asp (a very useful BVA pamphlet) M21-1, Part I, Chapter 5, Section B http://www.benefits.va.gov/WARMS/M21_1MR1.asp (this link will take you to the current M21-1; Chapter 4 is on hearings; Chapter 5 covers appeals)

Summary:

Initially, be aware that the procedural aspects of the Appeals Process, including the time limits, are among the more complicated areas we have to deal with. Also, because of workload and other factors, the appeals process is subject to frequent changes. For service officers involved in appeals, keeping track of time limits and procedural changes is critical. The index page to M21-1MR Part I, Chapter 5 shows that some of the subchapters have been significantly revised within the past 24 months.’

During the appeals process time limits for responses are critical. VA notifications to claimants are supposed to include clear notification of the time by which an appellant must respond. These time limits should be noted by advocates and adhered to. In many stages of the appeals process those time limits are established by law, VA employees are bound by them, and do not have the authority to extend those time limits except in very limited and unusual circumstances.

The M21-1MR chapter includes a fairly complete if lengthy chart of steps in the appeals process. That chart explains who is responsible for which stage in that process. That chart is reproduced at the end of this chapter. For service officers involved in assisting claimants with appeals, that chart should be referred to regularly, with particular attention to the time limits.

Any unfavorable adjudicative decision by the Department of Veterans Affairs (VA) may be appealed to the Board of Veterans Appeals, and if the denial continues, to the U.S. Court of Appeals for Veterans Claims (previously called the Court of Veterans Appeals). An adjudicative decision is one which establishes or denies eligibility to a VA benefit, such as service connection for a disability, eligibility for dental treatment, monthly rate of education assistance, waiver of overpayment, etc. A professional decision that a veteran should be given one type of medical treatment rather than some other is not an adjudicative decision, and is not appealable through these channels.

An appeal is defined as a timely filed written Notice of Disagreement(NOD)from a VA decision and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. A claimant generally has one year from the date of the letter notifying him or her of the denial of a benefit to submit

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a Notice of Disagreement; otherwise, that decision becomes final. The only requirements for a Notice of Disagreement are that it must be in writing, it must be addressed to the activity or operating element of VA which made the adverse decision and it must be worded so it may reasonably be construed as a desire for appellate review, and, as of March 24, 2015, it must generally be filed on a specific NOD form. It is not necessary to say why the claimant is dissatisfied or to make any specific contentions on the Notice of Disagreement. If multiple issues were decided and the claimant disagrees with some but not all of the decisions, the Notice of Disagreement should specify which decisions are being contested. When an NOD is received, VA must review it to clarify any issues. If it is not clear which decisions are being disagreed with, the claimant may be asked to be more specific.

Advocates should do what they can to ensure that the NOD is clear, to avoid any misunderstanding and the delay if clarification is required. Important: Effective March 24, 2015, VA will only accept issues listed on a timely VA Form 21-0958, Notice of Disagreement, if required*, as part of the appeal submission for compensation. Any additional evidence or statements suggesting appealed issues will be considered a request for notice of disagreement. Effective March 24, 2015, every case in which the VA provides, in connection with its decision, a form for the purpose of initiating an appeal, a notice of disagreement consists of a completed and timely submitted copy of that form. VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. *Exception: There is no standard form requirement for an NOD which contests a decision regarding a claimant’s entitlement to pension, Dependency and Indemnity Compensation (DIC), or accrued benefits.

There is a class of decisions which have a shorter appeal period. These are called “simultaneously contested claims,” and involve cases where there are two or more claimants for a single set of benefits, and a grant of one claim necessarily means a denial of the other claim or a reduction in benefits for the other party. Examples would be when there are two contending claimants, each claiming to be the veteran’s legal surviving spouse; or when there is a claim by a dependent for an apportioned share of the veteran’s (or other beneficiary’s) award, and regardless of the outcome, the unsuccessful party contests the decision. In these cases, the unsuccessful claimant must submit a Notice of Disagreement within 60 days from the date of adverse notice; otherwise, that decision becomes final.

For certain Notices of Disagreement, the claimant and/or representative may request a de novo review of the decision by a local Decision Review Officer (DRO) as a first step in the appeal process. This procedure is generally restricted to those issues governed by 38 CFR, Parts 3 and 4(primarily Compensation and Pension claims; although issues governed by Part 3 which affect eligibility for other benefits, such as character of discharge, minimum active duty service requirements, recognition of dependents, etc., are also included. A DRO also has jurisdiction over evaluations assigned service connected conditions under Par 4). [See also Notes On Hearings later in this chapter, and M21-1MR Part 1 Chapter 4]

A de novo review is a new and complete review of the appealed issue with no deference given to the decision being appealed. This review leads to a new decision, which may be a full grant, partial grant, CUE, or no change. Reference: For more information on de novo review, see 38 CFR §3.2600.

To obtain a DRO review, the claimant and/or representative must request it. When a claimant and/or representative submits a Notice of Disagreement and does not specify if DRO review is desired, VA is required to ask the claimant whether he or she wishes such review. The claimant is allowed 60 days to

162 respond. This 60-day period may not be extended. If the claimant or representative does not request DRO review within 60 days after the date VA mails notice of eligibility for such review, the Notice of Disagreement will be processed in the traditional manner, as described below. Only one DRO review is allowed for each issue being contested.

If a DRO review is elected, the DRO will review the claim for correctness and reasonableness. If any additional development is indicated, the DRO will direct that it be done. If the claimant requests it, the DRO may also conduct either a formal hearing or an informal conference on the issue(s). If there is no additional evidence, the DRO may modify or reverse an unfavorable decision based on either a de novo review or on clear and unmistakable error. The DRO may not issue a decision less favorable to the claimant than the original (contested) decision, unless the original decision was clearly erroneous. If the DRO review results in anything less than a full grant of the benefit(s) being sought and the claimant or representative does not withdraw the Notice of Disagreement, appellate processing then proceeds in the usual manner, as described below.

For decisions not subject to DRO review, or if the claimant does not wish DRO review (or does not answer the letter asking if a DRO review is wanted), when a valid Notice of Disagreement is received the responsible VA activity, called the Agency of Original Jurisdiction (AOJ) is obliged to review and reconsider the decision for correctness and to determine if any further development is necessary, and if so, to do it. After this review, if the full benefit being sought is still not granted, VA will then furnish a Statement of the Case to the claimant and his or her representative (if any). If more than one VA element was involved in the unfavorable decision, the activity which notified the claimant of the denial has primary responsibility for the SOC.

The SOC will contain a summary of the evidence considered in the decision, a recitation of the laws and regulations applicable to the decision, a statement of the decision, and a discussion of the reasons and bases why the rules applied to this evidence did not permit the benefit being sought to be granted.

The claimant then has 60 days or the remainder of the one-year appeal period, whichever is later, to submit a Substantive Appeal (VA Form 9, Appeal to the Board of Veterans’ Appeals, or the equivalent written statement) on the issue(s) covered; otherwise, the decision becomes final. HOWEVER, if the appealed issue is a simultaneously contested claim, the appealing party must submit the Substantive Appeal within 30 days from the date the Statement of the Case is furnished; if not, the appeal is not timely perfected and the decision becomes final.

A Supplemental Statement of the Case (SSOC) will be furnished if additional evidence is considered after the original SOC has been sent; if an amended decision has been made granting part but not all of the benefit(s) being sought; or if there was any material defect in the original SOC. The SSOC has the same elements as the original SOC. If the original appeal period had not expired when the additional evidence was considered, the claimant and representative (if any) will be furnished another VA Form 9 and allowed another 60 days (30 days for appeals on simultaneously contested claims) or to the end of the appeal period, whichever is later, for response. If additional issues are raised which were not covered in the original SOC, a new SOC (with another VA Form 9) will be issued regarding those additional issues. Return of this additional VA Form 9 is subject to the same time limits as the original Substantive Appeal.

The Substantive Appeal must make specific contentions relating to errors of fact or law made by VA in reaching the decision(s) being appealed. To the extent feasible, it should relate to specific points in the Statement(s) of the Case. The Board of Veterans’ Appeals (BVA) may dismiss any appeal that does not

163 make specific contentions; however, they will construe the record in a liberal manner to determine if the requirement has been met. Once the Substantive Appeal has been returned, the appeal has been “perfected,” and the appellant is not required to take any further actions except to cooperate with any additional development deemed necessary.

The AOJ will again review the evidentiary record for completeness and to make sure that all due process requirements have been observed. If these reviews result in a SSOC, the appellant and representative (if any) will be given an additional 60 days to make any further response desired. However, once the Substantive Appeal on each issue has been submitted, any further response is optional and is not required to continue the appeal. If there is a representative, the representative will be invited to make a final argument. The AOJ will then certify that the appeal is ready for BVA review, and forward the complete record to them. The appellant and representative (if any) will be notified when BVA receives the appeal, and will be allowed a period of up to 90 days to submit any additional evidence desired or to request a personal hearing (if not already done), or to request a change in representation. (Note that most veterans’ service organizations have strict rules against accepting appointment as representative during an ongoing appeal.)

BVA considers appeals in the order of receipt; however, an appeal may be moved to the head of the pending queue (advanced on the docket) if sufficient cause is shown. “Sufficient cause” would include terminal or serious illness of the appellant, advanced age of the appellant (over age 75), extreme financial hardship of the appellant, etc. Advancement on the docket must be requested in writing by either the appellant or the representative, and must state the reason(s) for the request.

If BVA determines that the appeal is not yet ready for review, they will remand it for additional development, observance of due process requirements, etc., as instructed. Under certain circumstances and depending on the specific evidence required, BVA may accomplish the additional development themselves without remanding the appeal:

If BVA determines that the case requires special expertise or involves complex legal issues, they may request an independent (from outside VA) expert medical opinion, or a legal opinion from VA General Counsel. Otherwise, the appeal must generally be remanded. Due to the large number of remanded appeals and the length of time many have been pending due to other workload issues, a separate Appeals Management Center (AMC) has been established for the sole purpose of handling remanded appeals.

When BVA concludes that the appeal is ready for review, they will proceed. Whether BVA’s final decision grants the appeal or affirms the denial, the appellant and representative (if any) will be advised in writing of the decision. The notice will include a listing of the issue(s) considered; findings of fact and law; a recitation of the evidence considered; and the reasons and bases for the decision as to each issue. The notice will also include notice of appeal rights to the Court of Appeals for Veterans Claims, including instructions on where and how to file an appeal to the court and the time limit for filing the appeal.

Additional evidence may be submitted by or for the appellant at any point between the time VA first notifies the claimant of its decision and the time BVA notifies the appellant of their decision. Remember, however, that submission of additional evidence does NOT extend the time limits for initiating or completing an appeal. Since VA is required by law to review and reconsider all decisions for correctness and completeness before proceeding with appellate processing, it is always in the claimant’s best interests to word a request for reconsideration as a Notice of Disagreement with intent to

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appeal if the denial is continued. The claimant’s appellate rights must always be protected, and observing this procedure will help ensure that the appeal period will not inadvertently be allowed to expire without the claimant having the opportunity to have his or her claim reviewed.

After the appeal has been forwarded to BVA and the 90-day period has elapsed, any additional evidence submitted may not be reviewed by BVA until it has been first reviewed by the AOJ or AMC, unless the appellant or representative specifically waives such review. The waiver must be in writing and must accompany the evidence being submitted. If no waiver is given, BVA will remand the appeal for review of the additional evidence and preparation of a SSOC, if the claim remains denied or if less than all the benefits being sought are granted and the appellant does not withdraw the appeal.

An appellant may request a personal hearing before the BVA at any point in the appeal up to the time BVA issues its decision. The hearing may be held before the Board sitting in Washington, D.C.; before a traveling section of the Board at the Department of Veterans Affairs Regional Office; or by teleconference, with the claimant at a designated VA station and the Board member in Washington, D.C.

Generally, an appellant will only be scheduled for a hearing once, unless good cause is shown why the hearing should be rescheduled or another hearing is required. As described above, the DRO may also conduct a personal hearing for an eligible claimant at the VA Regional Office.

A Notice of Disagreement and a Substantive Appeal may be filed by the claimant or representative, by the claimant’s next friend, or, if the claimant is under a disability by a court, by a fiduciary. Even if the claimant is under such disability, VA will still honor and act upon a Notice of Disagreement filed by the claimant if it is otherwise valid.

A Notice of Disagreement may be withdrawn in writing at any time prior to filing the Substantive Appeal, and a Substantive Appeal may be withdrawn in writing at any time before BVA promulgates its decision. Either the claimant or the representative may make the withdrawal. Withdrawal of a Notice of Disagreement or appeal as to any issue(s) does not preclude submitting another Notice of Disagreement on the same issue(s), provided the original one-year time limit to appeal the decision has not expired.

An appellant has 120 days from the date of the unfavorable BVA final decision to file an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC). This appeal must be sent directly to the court, NOT to BVA or to any VA office. The time limit for filing may not be extended or waived. There is a filing fee, which may be waived. Only the appellant or representative may appeal a BVA decision to the court; the agency may not appeal. One point that needs to be clear is that if an appellant has filed an appeal to CAVC that the appellant is now suing the VA, and is in an adversarial position; the Duty to Assist has ceased at this point.

The court may only consider the issues, evidence and arguments that BVA reviewed in its decision—no new evidence may be submitted and no new arguments or issues may be raised. The court will uphold BVA if there is any reasonable basis for its decision, unless the court finds an error of fact or law, or finds that BVA’s decision was arbitrary and capricious. Either the appellant or VA may appeal the CAVC’s decision to the U.S. Court of Appeals for the Federal Circuit, and if still unsuccessful, to the U.S. Supreme Court.

Even though a claimant is entitled to representation by the representative of his or her choice (including an attorney) throughout the entire claims and appeals process, no fee may be charged by the attorney or other representative until BVA has made a final decision denying the appeal. At that point, if the

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appellant wishes to continue pursuing the appeal to the CAVC, he or she may enter into a contingency fee agreement with an attorney for up to 20% of any retroactive benefits initially payable in the event of a favorable decision by the court. This fee agreement is subject to review for correctness and compliance with the law both by BVA and CAVC. If the appellant wins the appeal, the AOJ is responsible for withholding the amount payable to the attorney or other representative from the appellant’s retroactive award. In no event may the payment for this purpose be withheld from any portion of any other benefits payable for any period after the date of the decision authorizing such award.

A claimant or representative may request reconsideration of a final BVA decision at any time upon allegation of clear and unmistakable error of fact or law (CUE); discovery of new and material evidence in the form of relevant service records; or allegation of fraud or misrepresentation of evidence which materially influenced the Board’s decision. However, if an appeal is pending before the CAVC, BVA may not reconsider its decision unless the court gives it specific permission to do so.

SOME NOTES ON HEARINGS

See also M21-1MR, Part I, Chapter 4

A hearing is a formal procedure that VA must provide at the request of the claimant or his/her representative. Its purpose is to allow the claimant to present testimony. A claimant or his/her representative can request a hearing at any time and on any issue. Note: although we are including information on Hearings in this chapter, hearings are not solely for appeals.

A hearing can be conducted by video conference, or in person. Advocates need to be aware that the normal rules of evidence do not apply, and that leading questions are permissible. These two points are worth emphasizing if the veteran and/or the service officer is working with an attorney who is present at the hearing.

Reference: For more information on the purpose of a hearing, see 38 CFR 3.103(c).

A claimant may request, cancel or reschedule a hearing in writing, by e-mail, by fax, by telephone, or in person. Pre-decisional hearings(such as a hearing held prior to a VA decision on Character of Discharge) are conducted before one or more Veterans Service Center (VSC) employees who have decision-making authority over the issue(s) involved. Generally post-decisional hearings are held by Decision Review Officers (DRO’s).

The person requesting the hearing and witnesses are expected to appear in person at the hearing. An exception may be made for extenuating circumstances that prevent him/her from attending, such as incarceration or a serious medical condition. When there are extenuating circumstances, an individual holding power of attorney may represent this person

The claimant or his/her representative can present documentary evidence as well as oral testimony at the hearing, and bring witnesses to the hearing to provide testimony, or make arguments and contentions with respect to the facts and applicable law.

Proceedings before VA are non-adversarial in nature. VA is obligated to assist the claimant in developing facts pertinent to the claim. The hearing official will often make suggestions to the claimant

166 as to the submission of evidence that the claimant may have overlooked, and that would be advantageous to his/her position.

Advocates should remember the purpose of requesting a hearing, that is, to present evidence and/or relevant testimony to VA decisionmakers, and consider carefully if a personal hearing is the best way to present relevant evidence to the VA. Overview of the Appeal Process . Stage Who Is Action Reference Responsible 1 Appellant files a notice of disagreement M21-1, Part I, (NOD) in response to a Chapter 5, Department of Veterans Affairs (VA) decision Section B regarding his/her benefit . claim. 2 Claims Assistant, accepts the NOD if it does See M21-1 or not need further MR, Part I, Veterans Service clarification, such as 5.B.5. Representative clarifying which issues are (VSR) being appealed when a decision contains multiple issues establishes a Veterans Appeal Control and Locator System (VACOLS) record, and gives the appellant the option to elect (if the election is not received with the NOD) the − Post Decision Review Process, or − appellate review process without DRO review.

References: For more information on clarifying NOD issues, see M21-1MR, Part I, 5.B.6.b, and establishing a VACOLS record, see the VACOLS User's Guide.

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Stage Who Is Action Reference Responsible 3 Appellant elects either the See M21-1 MR, Part I, DRO review process, or 5.B.5. traditional appellate review process without DRO review.

Notes: It is acceptable for an appellant to elect the DRO review process by telephone. Any election received by telephone must be documented in writing on VA Form 27-0820, Report of General Information. If the appellant does not elect the DRO review process on the NOD or within 60 days of VA notification of the right to this process, the appeal proceeds in accordance with the traditional appellate review process. 4 VSR conducts one of the following See M21-1 Rating Veterans review processes based on the MR, Part I, 5.C. Service appellant’s choice: Representative (RVSR), or DRO review process, or DRO traditional appellate review process without DRO review.

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Stage Who Is Action Reference Responsible 5 VSR Does the review warrant a See RVSR, or change to the decision on DRO appeal? M21-1 MR, Part I, If yes on all issues, includes a 5.C.15 , and complete statement of facts M21-1 MR, in the new decision with Part I, 5.D. any discussion needed to clearly show the basis for the allowance. If yes on only some issues, − issues a Statement of the Case (SOC) confirming the decision on appeal and explaining the reasons for the VA decision, and − sends VA Form 9, Appeal to Board of Veterans’ Appeals, to the appellant. If no − issues an SOC confirming the decision on appeal and explaining the reasons for the VA decision, and − sends VA Form 9, Appeal to Board of Veterans’ Appeals, to the appellant. − − − − − − − − − − − − − − − −

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Stage Who Is Action Reference Responsible 6 Appellant returns VA Form 9 or a See M21-1 substantive appeal in lieu of MR, Part I, VA Form 9 within 5.E. applicable time frames, and may elect one of the following types of Board of Veterans’ Appeals (BVA) hearings: − Travel board − Videoconference, or − In person in Washington, DC, or may elect a local hearing before regional office (RO) personnel. 7 VSR sends a Supplemental See M21- RVSR, or Statement of the Case 1MR, Part I, DRO (SSOC) to the appellant if 5.D.21. − VA receives additional evidence, and − the appellant does not receive a complete grant of benefits on appeal, and gives the appellant 30 days to reply before the appeal is sent to BVA.

Notes: If none of the above applies, proceed to Step 8. No reply is necessary from the appellant once VA receives a substantive appeal. 8 DRO Certifies the case to BVA. See M21-1 RVSR, or MR, Part I, Veterans Service 5.F. Center Manager (VSCM) designee 9 Claims Assistant Transfers the claims folder to See M21- BVA. 1MR, Part III, Subpart i, 1.6.

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Stage Who Is Action Reference Responsible 10 BVA Either See M21-1, MR, Part I, issues a decision granting or 5.G. denying the benefit, or remands the case to the RO for additional action. 11 VSR If BVA See M21-1 RVSR, or MR, Part I, DRO issues a decision, then the 5.G. − RVSR issues a rating decision, if necessary, implementing BVA’s decision − VSR processes the RVSR decision, and − VSR closes out any pending VACOLS records. If all issues are decided, go to Step #13. remands the case to the RO, then the VSR, RVSR or DRO − performs additional development, and − issues a new decision.

If the new decision does not fully grant the benefit on appeal, the DRO, VSR, or RVSR prepares an SSOC, and returns the case to BVA. 12 BVA Issues a final decision in a See M21-1 remanded case. Case is MR, Part I, returned to the RO for 5.G. review/processing. 13 Appellant May appeal the final BVA See M21-1 decision to the U.S. of MR, Part I, Appeals for Veterans Claims 5.I. (CAVC) within 120 days of the date of the decision if he/she is not satisfied with the decision.

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CHAPTER 18

DISCHARGE REVIEWS

CORRECTION of MILITARY RECORDS

This chapter provides procedures to assist a claimant requesting a change or upgrade in the character of his or her discharge from service, as well as how to request other corrections of the military record when necessary.

References:

38 Code of Federal Regulations §§ 3.12, 3.360, 17.47, 21.7042 http://www.va.gov/opa/publications/benefits_book/benefits_chap15.asp

http://www.dtic.mil/whs/directives/infomgt/forms/index.htm

http://www.dtic.mil/whs/directives/forms/forminfo/forminfopage63.html

http://www.dtic.mil/whs/directives/forms/eforms/dd0293.pdf

http://www.dtic.mil/whs/directives/forms/eforms/dd0149.pdf

Summary:

Except as provided by 38 CFR §§ 3.360 and 17.47(a)(2) for health care benefits, and 38CFR § 21.7042(a)(4)(ii) for Chapter 30 (Montgomery GI Bill) education benefits, eligibility for VA benefits in general requires that the claimant or person on whose service the claim is based have been discharged from service under honorable conditions. With certain exceptions, an honorable discharge or a general discharge under honorable conditions is binding upon VA for all benefits purposes. If the discharge was less than honorable, VA will determine if the discharge was under other than dishonorable conditions so long as it was not issued for any of the reasons constituting a statutory bar to benefits, such as a discharge or dismissal by reason of sentence of a general court-martial, or a resignation of an officer for the good of the service, etc. If VA determines that the discharge was issued under other than dishonorable conditions, the claimant is eligible to proceed with his or her claim for benefits. Otherwise, the claim(s) must be denied.

Persons whose discharge from service was under other than honorable conditions may instead choose to apply for a review of the discharge by the Service Department. This may be either by a Discharge Review Board or by a Board for Correction of Military Records. Each is briefly described below.

I. Discharge Review Boards:

Each of the Armed Forces has established a Discharge Review Board under the provisions of 10 U.S. Code, Section 1553, to review upon application the nature and type of discharge issued in a particular case. The Board is empowered to determine whether the discharge or dismissal in an individual case

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should be changed, corrected, or modified under reasonable standards of regulations and discipline for that branch of service.

The Board does not have the authority to reinstate the applicant to service, nor can the Board change reenlistment codes to permit the applicant to return to service. In addition, if the other than honorable discharge was based on having been AWOL for more than 180 days, a recharacterized discharge by the Discharge Review Board is not necessarily binding upon VA; in such cases, VA must still determine whether there were compelling reasons for the person’s absence from duty.

A request for review of a discharge is made by submitting DD Form 293, Application for Review of Discharge or Dismissal from the Armed Forces of the United States, to the appropriate discharge review board, at the address listed on the form. The applicant must specify what change or recharacterization is required, and why it is necessary. Supporting documentation, including statements from witnesses, may be submitted either with the application or at any time up to the time the Board meets to consider the application.

The application must be filed not later than 15 years after the discharge or dismissal from service; this time limit may not be waived. If more than 15 years have elapsed since discharge or dismissal, the applicant must file DD Form 149, Application for Correction of Military Record Under Provisions of Title 10, U.S.C., Section 1552, with the appropriate Board for Correction of Military Records, as described below.

Discharge Review Boards conduct hearings for applicants to personally plead their cases and provide additional evidence, if desired. All of the Boards hold hearings in Washington, D.C. In addition, the Army and the Air Force have traveling review boards, which conduct personal hearings in various cities in each state. The Navy and Marine Corps Boards conduct personal hearings outside Washington, D.C. only in Arlington, Virginia; Dallas, Texas; Chicago, Illinois; and San Francisco, California. Applicants are entitled to representation of their choice, including representation by a veterans service organization.

II. Boards for the Correction of Military Records:

The Secretary of each of the military services is authorized under 10 U.S. Code, Section 1552, to establish a board to correct any military record, for the purpose of correcting an error in the record or to correct an injustice. Correction of a military record may include review of a discharge that was directed by a court-martial. A recharacterization of a discharge by a Board for Correction of Military Records as “honorable” or “general under honorable conditions” is final and binding on VA for all veterans’ benefits purposes.

To apply for correction of a military record, DD Form 149, Application for Correction of Military Record Under Provisions of Title 10, U.S.C., Section 1552, must be filed with the Board at the address listed on the form. All supporting documentation, including statements from witnesses, briefs of arguments, or any other evidence, must accompany the application as a complete package. The Board will not accept any additional evidence filed subsequently, except under the most extraordinary circumstances.

The application may be filed by the veteran or former service member, his or her survivors, or a legal representative. The time limit for filing is three years after the discovery of the alleged error or injustice; however, this time limit may be waived or excused if the Board finds that it would be in the interests of

173 justice to do so. It is the applicant’s responsibility to explain why the application should be considered despite the delay, and to show why the alleged entry in, or omission from, the record was erroneous or unjust.

Boards for Correction of Military Records do not normally hold personal hearings for the applicants. The Board will review the evidence and documentation submitted and will determine if a hearing would be necessary or appropriate, and if so, notify the applicant accordingly. All hearings before Boards for Correction of Military Records are conducted in Washington, D.C.

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CHAPTER 19

SPECIAL BENEFITS

CLOTHING ALLOWANCE AUTOMOBILE AND SPECIAL ADAPTIVE EQUIPMENT CHAMPVA REPS

References:

Title 38, U.S. Code, Chapters 11, 17, 18, 21, and 39. 38 Code of Federal Regulations Part 3, §§ 3.808–3.815; Part 17, §§ 17.149–17.159 and §§ 17.900–17.905; Part 21, §§ 21.8010-21.8410 Adjudication Manual M21-1MR, Part 9, Subpart I, Chapters 2-7 80-05-1, Federal Benefits for Veterans and Dependents http://www.vba.va.gov/bln/21/index.htm http://www.benefits.va.gov/homeloans/sah.asp http://www.publichealth.va.gov/exposures/agentorange/birth_defects.asp

This chapter covers various prosthetic and assistive appliances and devices available as well as multiple monetary grants and special allowances, and how to assist a veteran or other eligible person to apply for them. This chapter discusses Prosthetics, and birth defects for certain dependents.

Summary:

I. General:

A wide range of special services and benefits are available for disabled veterans. These may include prosthetic devices, medical accessories and similar appliances, or monetary grants for alteration and/or adaptation of a home or automobile to accommodate the particular disability. The qualifying disability need not necessarily be service-connected, although the eligibility requirements may differ for service- connected disabilities and nonservice-connected ones.

Appliances and devices available include, but are not limited to, artificial limbs, braces, orthopedic shoes, hearing aids, and wheelchairs. These may all be furnished as a necessary part of any medical care, whether inpatient or outpatient, which the veteran is eligible to receive and is receiving. Once issued, such appliances or devices may be repaired or replaced by VA, as necessary. In addition, if wearing of special clothing is made necessary by such appliances, the clothing may be purchased, made, or repaired by VA or at VA expense. All such items are provided by the Prosthetics and Sensory Aids Service at the VA Medical Center having jurisdiction for the veteran’s area of residence, upon application and

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determination of feasibility and need. This will usually be based upon a written order or request from the veteran’s treating physician. VA will also provide necessary training in the use of the appliances and devices.

VA will provide invalid lifts for certain veterans who have been determined to be in need of regular aid and attendance, whether service-connected or for special monthly pension. The qualifying disability on which such need is based is anatomical loss or loss of use of both lower extremities plus the loss or loss of use of at least one upper extremity, together with a medical determination that as a result, the veteran is incapable of transferring from the bed to a wheelchair or back without the aid of an attendant, and a lift is a feasible means for accomplishing such transfers. In addition, the veteran may be furnished other therapeutic and rehabilitative devices, including medical equipment and supplies (but not medications), which are determined to be medically necessary.

Veterans who are service-connected for hearing loss, and who are rated 80% or more for such hearing loss, may be furnished assistive devices including telecaptioning decoders to help overcome their hearing handicap.

Blind veterans who are entitled to compensation for any service-connected disability (the blindness need not be service-connected) may be furnished a trained guide dog and/or mechanical or electronic blind aid equipment as appropriate. VA will furnish the training, and will also provide for the period of adjustment to the guide dog, including the expenses of travel, food and lodging if the veteran is required to be away from his or her usual place of residence during this period of adjustment.

II. Clothing allowance:

In addition to the goods and services listed above, VA also provides certain monetary benefits to qualified disabled veterans: If a veteran has a service-connected condition which requires the wearing or use of an orthopedic or prosthetic appliance (including a wheelchair) which tends to tear or wear out clothing, or has a service-connected skin condition and uses medication for it that tends to stain or otherwise damage the clothing, an annual clothing allowance is payable upon application to the VA Regional Office. If the veteran is service-connected for anatomical loss or loss of use of one or more extremities, the allowance is automatically authorized after the initial application. In all other cases, the Prosthetics and Sensory Aids Service at the VA Medical Center must certify whether the veteran has a qualifying disability, and if so, whether the need for the orthopedic or prosthetic device or the medication for the skin condition is permanent. If the Prosthetics and Sensory Aids Service determines that the need is permanent, the allowance is automatically paid thereafter; if the need is not shown to be permanent, the veteran must reapply for the clothing allowance each year. Clothing allowance is paid during the month of August.

Application for this benefit should be made on Form 10-8678 (Current form online)

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III. Automobile and Special Adaptive Equipment:

If a veteran is entitled to compensation, including compensation under 38 U.S.C. 1151, because of anatomical loss or loss of use of one or both hands, or one or both feet, or because of defective vision in both eyes, with best vision in the better eye no better than 20/200, VA will pay up to $11,000 towards the purchase of an automobile or other conveyance plus any necessary special adaptive equipment which will allow the veteran to safely and effectively operate the automobile or other conveyance. This is a one-time payment only. The Prosthetics and Sensory Aids Service at the VA Medical Center may also authorize special adaptive equipment for veterans who are entitled to compensation for complete ankylosis of one or both hips or one or both knees, as well as authorizing adaptive equipment for subsequent vehicles for any veteran who has any of the above disabilities.

The special adaptive equipment may be repaired, reinstalled, or replaced as necessary; however, a veteran may not be authorized adaptive equipment for more than two vehicles at a time or during any four-year period, except for unusual circumstances beyond the veteran’s control.

A chart listing some of the adaptive equipment that VA will pay for is reproduced at the end of this chapter.

IV. Health Care Coverage for Dependents:

In addition to the special benefits for veterans, VA will also provide health care insurance coverage for the dependents or survivors of certain totally disabled (whether rated 100% or by reason of individual unemployability) veterans under the Civilian Health and Medical Program, VA (CHAMPVA). For eligibility under this program, the veteran-sponsor must:

• Be rated permanently totally disabled from service-connected disability; or • Have died on active duty, in line of duty; or • Have died from a service-connected disability; or • Have been rated service-connected and permanently totally disabled at the time of death from any cause not willful misconduct.

Eligible persons include the veteran’s spouse or surviving spouse, minor children under age 18, children between the ages of 18 and 23 who are attending an approved school, and children over age 18 who have been determined to be permanently incapable of self-support (“helpless”). Dependents of retired or other military personnel who are eligible for health care coverage under CHAMPUS/TRICARE are not eligible for coverage under CHAMPVA.

Public Law 107-330, the Veterans Benefits Act of 2002, provides that beginning February 4, 2003 an eligible surviving spouse who is over age 55 and who remarries will not lose eligibility for health care coverage under CHAMPVA. Additionally, a former surviving spouse who had remarried before December 6, 2002 and who was over age 55 at the time of the remarriage may restore eligibility for health care coverage under CHAMPVA by reapplying for such coverage before February 4, 2004.

Beginning June 5, 2001, persons over age 65 who are eligible for hospital insurance under Medicare Part A will continue to also be eligible for health care coverage under CHAMPVA. Persons under age 65

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who are entitled to both Medicare Part A and Part B may still be eligible for CHAMPVA as a secondary payer (Medicare supplement).

CHAMPVA will cover most health care services and supplies that are considered medically or psychologically necessary. In general, a person covered under CHAMPVA may seek treatment from any licensed health care provider or at any licensed medical facility, including many VA medical facilities. CHAMPVA administration, including applications and claims processing, is centralized to the VA Health Administration Center, Denver, Colorado Health Care Coverage for Dependents of Totally Disabled Veterans:

V. Spina Bifida Allowance:

VA will pay a special monthly allowance to or for a natural child of a Vietnam veteran, conceived after the date the veteran first served in Vietnam or the waters offshore, or child of a Korean Theater veteran that served at the DMZ during 1968 and 1969 if the child is suffering from spina bifida. This allowance is the first time VA has authorized disability benefits for a dependent who has been disabled by the veteran’s service. The current age or marital status of the child is not relevant to this allowance, and receipt of this allowance has no bearing on any other VA benefit payable to or for the child based on the child’s relationship to the veteran. For purposes of this benefit, the term “spina bifida” means all forms and manifestations of spina bifida except spina bifida occulta. If both of the natural parents are Vietnam veterans, only one allowance is payable to or for the affected child. However, multiple allowances may be paid if a Vietnam or Korean veteran has more than one natural child, each of whom was conceived after the veteran served in Vietnam or the waters offshore, or at the DMZ during 1968 and 1969, who suffers from spina bifida.

Application for the allowance is made by submitting a completed VA Form 21-0304, Application for Spina Bifida Benefits, together with appropriate supporting medical evidence to show that the child has spina bifida and the severity of the condition. Child will be assigned his/her own VA File Number, separate from the Veteran’s. Payment will be based on three levels of disability, from Level I (able to ambulate unassisted, with minimal to mild impairment of functioning or intellect) to Level III (grossly impaired, nonambulatory, severely mentally retarded, and/or completely incontinent of bladder and bowel). The rates of payment are: Level I, $244: Level II, $844; Level III, $1440. If the supporting medical evidence is not adequate to show the child’s level of disability, a rating of Level I will be assigned and a VA examination scheduled for a definitive assessment. Infants under one year of age at time of application will be rated as Level I unless the medical evidence shows neurological deficits of such severity as to warrant an immediate rating at Level III. In either event, the level of disability will be reassessed when the child is one year of age. Children between the ages of 5 and 21 will be periodically reassessed, at intervals not greater than five years, until they reach age 21. After age 21, VA will not further reassess the level of disability unless there is evidence of material change in the severity of the child’s condition, or evidence that the current rating may be incorrect.

In addition to payment of the special monthly allowance to or for an eligible child suffering from spina bifida, VA will also provide all necessary treatment for the spina bifida and any conditions directly arising from or because of it. Treatment will be furnished by VA, either directly or under contract with an approved health care provider. Other arrangements for the child’s spina bifida-related care may also be honored, provided they are authorized in advance. In these cases, the authorization is issued by the Health Administration Center in Denver, Colorado; claims for payment are handled on the same basis as claims under the CHAMPVA program.

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VI. Monetary Allowance for Children of Women Vietnam Veterans Born with Certain Birth Defects.

In addition to the allowance described above for spina bifida in a child of any Vietnam veteran, male or female, beginning December 1, 2000 Public Law 106-419, the Veterans Benefits and Health Care Improvement Act of 2000, authorized payment of a monetary allowance for each biological child of a woman Vietnam veteran, conceived after the date the veteran first served in the Republic of Vietnam, who suffers from any of contain identified birth defects. All birth defects are included unless specifically excluded. The classes of birth defects excluded (not covered) are: • Familial disorders including hereditary genetic conditions, such as cystic fibrosis or sickle cell disease; • Congenital malignant neoplasm’s, such as neuroblastoma; • Chromosomal disorders, such as Down’s syndrome; • Conditions due to birth-related injuries, such as cerebral palsy; • Conditions due to fetal or neonatal infirmity with well-established causes, such as hyaline membrane disease or maternal-infant blood incompatibility; • Conditions that are developmental disorders, such as autism or learning disorders; or • Conditions that do not result in permanent mental or physical disability, including conditions that are rendered non-disabling through surgical or other treatment.

As with the spina bifida allowance, the current age or marital status of the covered child in not relevant, and receipt of this allowance has no bearing on any other VA benefit payable to or for the child based on the child’s relationship to the veteran. In addition, payment of this allowance may not be counted as income or assets for the purpose of establishing or denying eligibility for any other Federal or federally- assisted program.

VA Form 21-0304 has been revised and re-titled Application for Benefits for Certain Children with Disabilities Born of Vietnam Veterans, and is used to apply both for the spina bifida allowance and for the allowance under this program. VARO Denver, Colorado, has exclusive jurisdiction over both programs. The evidentiary requirements for this allowance are essentially the same as for the spina bifida allowance. Five levels of disability have been established, from Level 0 (no current disability) to Level IV (physical or mental defects that prevent age-appropriate self care; or, behavior, communication, intellectual functioning, or social interaction are grossly inappropriate for age; or, disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of features). The monetary rates payable for each level are listed in Adjudication Manual M21-1, Part 1, Appendix B.

If an eligible child’s only covered birth defect is spina bifida, the child may only be paid the spina bifida allowance. If the child has any other covered birth defect in addition to spina bifida, then only the allowance under this program may be authorized; however, the allowance paid may not be less than the amount of the allowance that would have been payable if the child’s only covered birth defect was spina bifida.

As with the spina bifida allowance, VA will provide an eligible child with appropriate vocational rehabilitation and training, with similar limitations. In addition, VA will provide any and all necessary treatment for the covered birth defect(s) and resulting conditions, either at a VA medical facility or by

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contract with an approved local health care provider. Health care claim and authorization requirements are similar to those for the spina bifida allowance.

VII. Restored Entitlement Program for Survivors (REPS):

The REPS program is one of the least-known VA programs for survivors of deceased veterans. Public Law 97-35, the Omnibus Budget Reconciliation Act of 1981, eliminated Social Security benefits for certain surviving spouses with children “in care” when the youngest child reached age 16. Most student benefits for children over age 18 were also eliminated. Section 156 of Public Law 97-377 restored benefits for the veteran’s surviving spouse until the youngest child reached age 18, and for unmarried post-secondary school students between ages 18 and 22. REPS is a unique hybrid program—it is funded by the Department of Defense, but is administered by VA using a mixture of VA and Social Security Administration (SSA) eligibility criteria.

Qualifying eligibility for REPS requires that:

• The veteran died in service before August 13, 1981. • If the veteran died in service after August 12, 1981, the condition which caused or contributed to death must have had its onset before August 13, 1981. (This includes persons listed as missing in action prior to August 13, 1981, for whom a casualty report shows a date of (presumed) death after August 12, 1981.) • If the veteran died after service, the service-connected condition which caused or contributed to death must have had its onset before August 12, 1981, and must have been incurred or aggravated in line of duty. The character of discharge from service is not a factor for purposes of REPS eligibility. Any disease which may be presumptively connected to service prior to August 12, 1981 (to specifically include presumptively herbicide-related diseases for veterans who served in Vietnam during the Vietnam Era, or near the Korean DMZ between 1968 and 1971) will establish eligibility. DIC under either 38 USC 1318 or 38 USC 1151 does not establish eligibility.

Survivors of deceased members of the Philippine Commonwealth Army (including guerilla forces), the Philippine Scouts, the commissioned corps of the Public Health Service, and the National Oceanic and Atmospheric Administration are specifically excluded from this program.

The rules and criteria for establishing relationship to the veteran are specified by SSA. Those rules are similar, but not identical, to the corresponding VA rules. The surviving spouse is eligible for REPS benefits if the youngest child of the veteran in the spouse’s care is at least 16 years old but younger than 18. Under certain circumstances, the veteran’s grandchild may be recognized as a “child” for REPS purposes. A surviving spouse who remarries may re-establish eligibility if the remarriage is subsequently terminated.

A child who is over age 18 but under age 22 must be attending post-secondary school full-time. A schoolchild who marries after REPS eligibility has been established loses eligibility. The child may re- establish REPS eligibility if the marriage is voided or annulled, but not if the marriage is terminated by death or divorce.

Application for REPS benefits is made by submitting a completed VA form 21-8924.1, Application for Benefit Under Provisions of Section 156, Public Law 97-377 (REPS), plus appropriate proof of the veteran’s service, acceptable proof of death, and proof of relationship (if not previously submitted) to

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the VA Regional Office, St. Louis, Missouri, which has exclusive jurisdiction of REPS claims. There is no time limit for applying—if eligibility is established, benefits will be paid from the earliest date eligibility is shown (but not earlier than January 1, 1983). If VARO St. Louis needs additional evidence or a rating or other determination to establish basic eligibility, it will be requested fro the VA Regional Office having jurisdiction of the claims file.

Although both benefits require a service-connected death, eligibility for REPS benefits independent of receipt (or denial) of DIC. Further, there is no requirement that the claimant must have previously applied for Social Security, and failure to file an application for Social Security benefits does not preclude awarding REPS benefits. A schoolchild may be paid benefits for periods of non-attendance of four months or less (such as a vacation periods), providing that the child was attending school full-time immediately before the break and resumes full-time attendance immediately after the break. Periodic certification of continued attendance is required.

Rates payable under the REPS program are based on the deceased veteran’s Social Security earnings record and the number of eligible beneficiaries (or potential beneficiaries). In addition there are limitations on wages and earned income for all beneficiaries, and periodic reporting of income is required. If the earned income limits are exceeded, the REPS rates otherwise payable will be reduced by $1 for each $2 the income is over the annual limits.

FORMS

CLOTHING ALLOWANCE VA FORM 21-8678 – Application for Clothing Allowance

AUTOMOBILE AND SPECIAL ADAPTIVE EQUIPMENT VA FORM 21-4502 - Application for automobile grant and adaptive equipment VA FORM 10-1394 - Application for adaptive equipment motor vehicle

CHAMPVA VA Form 10-10d – Application for ChampVA for Dependents VA Form 10-7959c – CHAMPVA – Other Health Insurance (OHI) Certification

SPINA BIFIDA ALLOWANCE VA FORM 21-0304 – Application for Spina Bifida Allowance

REPS VA form 21-8924.1, Application for Benefit Under Provisions of Section 156, Public Law 97-377

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CHAPTER 20

CONCURRENT RECEIPT OF COMPENSATON AND RETIRED PAY

SCSD CRDP CRSC

M21-1, Part III, Subpart v, Chapter 5, Section A

Some veterans are entitled to concurrent payment of compensation and retirement pay under the National Defense Authorization Act for Fiscal Year 2004 or reimbursement for waived retirement pay under the National Defense Authorization Act for Fiscal Year 2003.

Veterans frequently waive only so much of their military retired pay or retainer pay as is equal to the amount of compensation, Section 306 Pension, or Old Law Pension to which they are entitled.

Since compensation, Section 306 and Old Law Pension are not taxable benefits, but military retirement pay from the Armed Forces based on age or length of service is taxable, there is an obvious advantage for a veteran to waive military retirement pay.

Beginning with the Defense Authorization Act of 2000, programs have been developed to permit concurrent payment of VA benefits and some form of military retirement pay. There are three different programs:

SCSD: Special Compensation for Severely Disabled Veterans CRDP: Concurrent Retirement and Disability Payments CRSC: Combat Related Special Compensation

SCSD was administered and paid by the Department of Defense (DoD). The amount of payment was based on the percent of the VA disability evaluation and the payment was taxable. The basic criteria for eligibility are shown in the following table.

Effective Date Basic Eligibility Criteria October 1, 2001 20 years of qualifying service − military disability retirees are included SC disability 70 percent or more, and 70 percent evaluation within 4 years of military service February 1, 2002 20 years of qualifying service − military disability retirees are included SC disability of 60 percent or more, and 60 percent evaluation within 4 years of military service January 1, 2004 no eligibility (program repealed)

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Note: Although the SCSD program has been replaced, this historic description is included for general information in case some active claims are encountered in which reference is made to this program . Concurrent Retirement and Disability Payments (CRDP)

The National Defense Authorization Act of 2004 established Concurrent Retirement and Disability Payments (CRDP), effective January 1, 2004. This program is administered and paid by DoD and it is intended to phase out the offset of military retirement pay for VA disability compensation over a 10-year period. A veteran may qualify if he or she has a combined disability evaluation of at least 50 percent and is retired from the military

for length of service, or for disability (10 U.S.C. Chapter 61) with at least 20 years active service.

Note: Entitlement to any benefit under CRDP is contingent on waiving military retirement pay to receive VA compensation. If no retirement pay has been waived, there is no lost retirement benefit to be restored through the provisions of CRDP.

Reference: For more information on CRDP, see the DFAS Internet site at: http://www.dfas.mil/dfas/retiredmilitary/disability/comparison.html

An application for CRDP is not necessary.

The Defense Finance and Accounting Service (DFAS) will automatically determine the amount of CRDP and initiate payment. Veterans should contact their military department or DFAS if they did not receive notification, but believe they are eligible. If eligible for both CRDP and Combat-Related Special Compensation (CRSC), a veteran may elect either benefit during the election open season in January − DFAS sends out election information to eligible veterans each December, and concurrent payment of both CRDP and CRSC may not be made CRDP is essentially a substitute for a portion of the military retirement pay that must be waived, which in effect reduces the amount of military retirement pay that is waived. However, the gross amount of CRDP may be reduced for

taxes child support or alimony garnishments, and government debts.

CRDP replaces a portion of the military retirement pay that is waived to receive VA compensation.

This Rate Table shows the current amount credited against the waived retirement pay. Combined Disability Evaluation Restored Rate of Retirement Pay 100% $750.00 90% $500.00

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80% $350.00 70% $250.00 60% $125.00 50% $100.00

CRDP was being phased in over a period of ten years. Eventually, the full amount of military retirement should be paid and the withholding of retirement benefits will be eliminated for eligible veterans. The following table shows the restoration percentage that was projected over the ten-year phase-in period.

Effective Year Percent of Restoration 2005 10.00% 2006 28.00% 2007 49.60% 2008 69.76% 2009 84.88% 2010 93.95% 2011 98.18% 2012 99.64% 2013 99.96% 2014 100.00%

A veteran with a 100 percent total disability evaluation is eligible to receive the full amount of the formerly offset military retirement pay, effective January 1, 2005.

However, the National Defense Authorization Act for 2006 provides that when a veteran is evaluated as totally disabled due to individual unemployability, full restoration of the military retirement pay cannot be made until October 1, 2009

Combat Related Special Compensation (CRSC).

The Defense Authorization Act of 2003 established combat Related Special Compensation (CRSC). This benefit was designed to compensate certain veterans who must have their military retirement waived to establish entitlement to VA compensation. Although administered by DoD and paid to military retirees, these payments are not retirement and are exempt from the restrictions of concurrent payment.

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Combat Related Special Compensation (CRSC) was authorized by the National Defense Authorization Act of 2003, Public Law (PL) 107- 314, and became effective June 1, 2003. Eligibility was expanded effective January 1, 2004. CRSC is intended to reimburse combat- disabled veterans for a portion of their retirement pay that must be waived to receive VA benefits.

The eligibility criteria for CRSC are described in the following table.

Eligibility is determined by the veteran’s former military service branch. VA may need to furnish disability information to the military, but CRSC is administered and paid by DoD, not VA.

Effective Date Eligibility Criteria Consists of June 1, 2003 20 years active military service for retirement purposes receipt of VA disability compensation, and qualifying combat-related disability(ies) − evaluated at least 10 percent for which a Purple Heart was awarded, or − alone or in combination, evaluated at 60%. Effective Date Eligibility Criteria Consists of January 1, 2004 20 years − active military service for retirement purposes − reserve service for retirement at age 60 receipt of VA disability compensation, and qualifying combat-related disability(ies) − evaluated at any compensable percentage.

Reference: For more information, see the DoD Internet site for CRSC at: http://search.usa.gov/search?affiliate=dod_milpay&query=crsc

and the DFAS site: http://www.dfas.mil/dfas/retiredmilitary/disability/payment.html

Eligibility for CRSC requires a service-connected disability that is combat-related. For the purpose of this benefit, a combat-related disability is described in the following table. The military department makes the final determination regarding qualifying disabilities. This is not a VA program.

The military department must independently determine the relationship between that disability and the qualifying criteria. Military departments are not bound by VA presumption if there is documentary information that the disability is not combat-related. Note the types of activities listed below that are considered to be hazardous service or “conditions simulating war”.

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Nature of Exposure Characteristics of This Type of Exposure Presumptive The military department must independently conditions under 38 determine the relationship between that disability U.S.C. 1112(a) or and the qualifying criteria. Military departments are PTSD not bound by VA presumption if there is documentary information that the disability is not combat-related. Direct result of armed The disability is a disease or injury incurred in the conflict line of duty as a direct result of armed conflict. Mere service during wartime or participation in combat operations is not sufficient. There must be a causal relationship between the armed conflict and the resulting disability. Disabilities awarded VA compensation based on POW status, service- connected exposure to hazards, such as Agent Orange, Gulf War illnesses, Radiation Exposure, Mustard Gas, and Lewisite, which are clearly combat-related, are presumed combat-related for the purpose of CRSC. Nature of Exposure Characteristics of This Type of Exposure While engaged in Such service includes, but is not limited to, aerial hazardous service flight, parachute duty, demolition duty, experimental stress duty, and diving duty, if the disability is a direct result of performance of such duty. Travel to and from such duty is not included. In the performance of In general, this covers disabilities resulting from duty under conditions military training, such as war games, practice alerts, simulating war tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities such as calisthenics and jogging or formation running and supervised sport activities.

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Instrumentality of war Incurrence during an actual period of war is not required. However, there must be a direct causal relationship between the instrumentality of war and the disability. An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. It may also include such instrumentalities not designed primarily for military service if use or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. This may encompass such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosions of military ordnance, vehicles, or material.

A veteran must contact his or her branch of service to apply for CRSC. The application should be submitted on a DD Form 2860, Application for Combat-Related Special Compensation (CRSC). The application (along with other useful forms) is available at http://www.dfas.mil/dfas/retiredmilitary/forms.html

The veteran should send the application to the appropriate military service. Addresses are listed in the following table.

Branch Mailing Address Army U.S. Total Army Personnel Command U.S. Army Physical Disability Agency (CRSC) C/o The Adjutant General directorate 2461 Eisenhower Avenue Alexandria, VA 22331-0470 (Toll free 1-866-281-3254) Navy and Marine Department of Navy Corps Naval Council of Personnel Boards Combat-Related Special Compensation Branch 720 Kennon Street S.E., Suite 309 Washington Navy Yard, DC 20374-5023 (Toll free 1-877-366-2772) Air Force United States Air Force Personnel Center Disability Division (CRSC) 550 C Street West, Suite 6 Randolph AFB, TX 78150-4708 (Toll free 1-866-229-7074)

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Coast Guard Commanding Officer (RAS-CRSC) U.S. Coast Guard Human Resources Services and Information Center 444 S.E. Quincy Street Topeka, KS 66683 United States Public United States Public Health Service Health Service Division of Commissioned Personnel (USPHS) Room 4A-15 5600 Fishers Lane Rockville, MD 20857-0001

CRSC Boards will determine eligibility for CSRC. These Boards may request disability or service information from VA’s records to assist in their determination of eligibility for CRSC payments.

In most cases, Veterans entitled to military retired pay who have service connected disabilities secondary to Agent Orange exposure will be eligible for CRSC for those disabilities. However, only the service CRSC board can make that determination.

The DFAS website for CRDP and CRSC has recently been updated, and the following was added: If you need help, contact DFAS 1-800-321-1080 .

Breaking news while this manual was in preparation: http://www.govexec.com/pay-benefits/2016/04/defense-has-wrongly-taxed-disabled-combat-vets- years/127313/?oref=govexec_today_nl

You might have clients that need to be aware of this.

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APPENDIX A

GLOSSARY OF TERMS

Abbreviations These are some of the most common acronyms and abbreviations that will be encountered. This list is by no means exhaustive. Also, be aware that some acronyms are used inconsistently and/or for multiple terms in different contexts.

A&A Aid and Attendance AAO Assistant adjudication officer ACAP Annual clothing allowance payment AFDC Aid to Families with Dependent children AGG Aggravated in service AIDS Acquired Immune Deficiency Syndrome AIRS Appellate Index Retrieval System AO Adjudication officer or Agent Orange AOCAP Agent Orange Class Assistance Program AOJ Agency of original jurisdiction APA Administrative Procedure Act AR Army regulation AWOL Absence without official leave BCMR Board of correction of Military Records BCNR Board of correction of Naval Records BVA Board of Veterans Appeals CAVC (U.S.) Court of Appeals for Veterans’ Claims C-file Claims file CBD Chief benefits director C&C Confirmed and continued (rating decision) CD Clemency discharge C.F.R. Code of Federal Regulations CHAMPUS Civilian Health and Medical Program of the Uniformed Services CHAMPVA Civilian Health and Medical Program (VA) CMD Chief medical director COG Convenience of the government COLA Cost-of-living adjustment COMP. Compensation C&P Compensation and pension CTA Centralized transcription activities CVA (U.S.) Court of Veterans Appeals CVSO County Veterans Service Officer CWT Compensated work therapy DC Diagnostic code D.C. District counsel (chief legal authority in a VARO) DD Dishonorable discharge DEA Dependents’ Educational Assistance

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DIC Dependency and indemnity compensation DNA Defense Nuclear Agency DOD Department of Defense DRB Discharge Review Board DRO Decision Review Officer DSM-III-R Diagnostic and Statistical Manual of Mental Disorders (rev.3d. ed.) DSM-IV Diagnostic and Statistical Manual of Mental Disorders (rev. 4th ed.) DSM-V Diagnostic and Statistical Manual of Mental Disorders (rev 5th ed.) DVA Department of Veterans Affairs DVSA Domestic Volunteer Service Act EAD Entered on active duty EAJA Equal Access to Justice Act EOD Entry on duty EPC End product control ESG Environmental support Group ETS Expiration of term of service EVR Eligibility verification report EGP Foster Grandparent Program FOIA Freedom of Information Act FTCA Federal Tort claims Act GAO General Accounting Office GC General Counsel GPO Government Printing Office GSW Gunshot wound HB Housebound HD Honorable discharge HIV Human immunodeficiency virus HO Hearing officer IME Independent medical expert INC Incurred in service IT Incentive therapy IU Individual unemployability IVAP Income for VA purposes JAG Judge Advocate General LIHEAP Low Income Home Energy Assistance Program LOD Line of duty LSA List of Sections Affected (C.F.R.) MAPR Maximum annual pension rate NA National Archives NAS National Academy of Sciences NHL Non-Hodgkin’s lymphoma NOA Notice of Appeal NOD Notice of Death or Notice of Disagreement NPRC National personnel Records Center NSC Nonservice-connected NSLI National Service Life Insurance NSO National Service Officer NVLSP National Veterans Legal Services Project OGC Office of the General Counsel (VA)

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OMPF Official military personnel file OPC Outpatient clinic Op. G.C. Opinion of the General Counsel OPT Outpatient treatment Pen. Pension PIF Pending issue file PL/P.L. Public law POA Power of attorney POW Prisoner of war PRES Presumption PT Permanent total disability PTSD Post-traumatic stress disorder RAD Release from active duty RE code Reenlistment code REPS Restored Entitlement Program for Survivors RH Insurance policy designation for veterans with service-connected disabilities RI Rating increase RPC (VA) Records Processing Center (St. Louis) RSFPP Retired Services Family Protection Plan RSVP Retired Senior Volunteer Program SBP Survivor Benefit Plan SBP-MIW Survivor Benefit Plan-Minimum Income Widow SC Service-connected SDN Separation Designator Number SDRP Special Discharge Review Program SF Standard form SFW Shell fragment wound SGLI Servicemen’s Group Life Insurance SIRS Special Issue Rating System SMC Special Monthly Compensation SMIB Supplementary medical insurance benefit SMP Special Monthly Pension SMR Service medical record SOC Statement of the Case SPCM Special court-martial SPD Separation Program designator SPN Separation program number SRD Schedule for rating disabilities SSA Social Security Administration SSDI Social Security Disability Income SSI Supplemental Security Income SSOC Supplemental Statement of the Case STS Soft tissue sarcomas TDRL Temporary disability Retired List (uniformed service) TIN Transaction Identification Number TPQ Third-party query UCMJ Uniform Code of Military Justice UD Undesirable discharge UOTHC (Discharge) under other than honorable conditions

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U.S.C. United States Code U.S.C.A. United States Code Annotated USCCAN United States Code Congressional and Administrative News. UYA University Year for ACTION VA Department of Veterans Affairs (also used for old Veterans Administration) VACO VA Central Office VACOLS Veterans Appeals Control and Locator System VADEX VA Index VAMC VA Medical Center VAOPC VA Outpatient Clinic VAR VA regulation VARO VA Regional Office VBA Veterans Benefits Administration VD Venereal disease VEAP Veterans’ Education Assistance Program VGLI Veterans’ Group Life Insurance VHA Veterans Health Administration VISTA Volunteers in Service to America VJRA Veterans’ Judicial Review Ace of 1988 VSO Veterans Service Organization WIA Wounded in action

WW I World War One (period of service—see 38 CFR § 3.2(c)) WW II World War Two (period of service—see 38 CFR § 3.2(d))

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APPENDIX B

MEDICAL ABBREVIATIONS AND SYMBOLS

The purpose of this portion of the appendix is to assist with the interpretation of the abbreviations and symbols most commonly appearing in hospital, clinical, examination, and outpatient treatment reports. The following listing of abbreviations and symbols is for use in the interpretation of medical reports and rating decisions. Be aware that the use of these abbreviations is not standardized in the medical profession. This list is not intended to be either an exhaustive listing nor to be a glossary of medical terminology.

ABBREVIATIONS ABG Arterial blood gases AC Ante cibum—before meals; or Acromioclavicular (shoulder joint) AD Auris dexter—right ear AE Above elbow AEA Above elbow amputation AFB Acid fast bacillus AIDS Acquired immune deficiency syndrome AK Above knee AKA Above knee amputation ANT Anterior AMI Acute myocardial infarction; or Anterior myocardial infarction AODM Adult-onset diabetes mellitus (a.k.a. Type 2 diabetes) AP Angina pectoris; or Anteroposterior A & P Auscultation and percussion; or Anterior and posterior AS Auris sinister—left ear; or Arteriosclerosis (atherosclerosis) ASA Acetylsalicylic Acid (Aspirin) ASCVD Arteriosclerotic (atherosclerotic) cardiovascular disease ASHD Arteriosclerotic (atherosclerotic) heart disease ASO Arteriosclerosis Obliterans (see also PVD, ASPVD) ASPVD Arteriosclerotic (atherosclerotic) peripheral vascular disease AU Auris unitas—both ears

BB Beriberi (also beri beri) BBB Bundle branch block (EKG finding) b.i.d. Two times per day BIL Bilateral BK Below knee BKA Below knee amputation BLE Both lower extremities BMR Basal metabolic rate BP Blood pressure BS Bowel sounds BUN Blood urea nitrogen BUE Both upper extremities

C Cervical; or Celsius CA Carcinoma CABG Coronary artery bypass graft

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CAD Coronary artery disease CBC Complete blood count CBS Chronic brain syndrome (dementia) CC Chief complaint

CHF Congestive heart failure cm. Centimeter CNS Central nervous system C/O Complains of COLD Chronic obstructive lung disease COPD Chronic obstructive pulmonary disease CPR Cardiopulmonary resuscitation CSF Cerebrospinal fluid CT scan Computed tomography CAT scan Computed axial tomography CVA Cerebral vascular accident (stroke); or Costovertebral angle

DAH Disordered action of the heart (neurocirculatory asthenia) D/C Discontinue; or (Hospital) discharge D&C Dilation and curettage DIP Distal interphalangeal (joint) DJD Degenerative joint disease DNIF Duty not involving flying DOE Dyspnea on exertion DTR Deep tendon reflex DTs Delirium tremens

ECG (also EKG) Electrocardiogram EEG Electroencephalogram EENT Eyes, Ears, Nose and Throat EMG Electromyogram ENG Electronystagmogram ENT Ears, Nose and Throat EST Electroshock therapy

FANA Fluorescent antinuclear antibody (blood test) FB Foreign body FBS Fasting blood sugar FEV1 Forced expiratory volume in one minute FH Family history FROM Full range of motion FSH Follicle stimulating hormone FU Follow-up FUO Fever of undetermined/unknown origin FVC Forced vital capacity FWB Full weight bearing FX Fracture

GI Gastrointestinal GSW Gunshot wound GT Gutta—drops GTT Glucose tolerance test GU Genitourinary

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HBP High blood pressure (hypertension) HbS Sickle cell hemoglobin HcT Hematocrit HCVD Hypertensive cardiovascular disease Hgb Hemoglobin HNP Herniated nucleus pulposus HTN (also HPN) Hypertension HS Hora somni—at hour of sleep (bedtime) Hx History Hz Hertz (cycles per second)

ICU Intensive Care Unit IHD Ischemic heart disease IHSS Idiopathic hypertrophic subaortic stenosis IM Intramuscular; or Infectious mononucleosis IMP Impression; or Improved INF Inferior; or Infusion INH Isoniazid (anti-tuberculosis drug) IOL Intraocular lens IOP Intraocular pressure IPPB Intermittent positive pressure breathing IV Intravenous IVD Intervertebral disc IVP Intravenous pyelogram

JVD Jugular venous distention

K Potassium KJ Knee jerk (tendon reflex) KUB Kidneys, ureters, bladder

L Lumbar LAD Left anterior descending (coronary artery); or Left axis deviation (EKG) LAT Lateral LBP Low back pain LCM Left costal margin LE Lupus erythematosus LFT Liver function test LKS Liver, kidneys, spleen LLC Long leg cast LLE Left lower extremity LLL Left lower lobe (of lung) LLQ Left lower quadrant LOC Loss of Consciousness LOM Limitation of motion LS Lumbosacral LUE Left upper extremity LUL Left upper lobe (of lung) LUQ Left upper quadrant LVH Left ventricular hypertrophy

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MCL Midclavicular line; or Medial collateral ligament MCP Metacarpophalangeal (knuckle joint) MED Median MFB Metallic foreign body MG Muscle group MHC Mental Hygiene Clinic MI Myocardial infarction mm. Millimeter MS Multiple sclerosis; or Morphine sulfate (narcotic pain-killer) MSL Mid-sternal line MTP Metatarsophalangeal (toe joint)

NAD No acute distress; or No abnormality detected NCD Not considered disabling NHL non-Hodgkins Lymphoma NL Normal NPN Nonprotein nitrogen NSA No significant abnormality N & V Nausea and vomiting NWB Nonweight-bearing

OBS Organic brain syndrome (dementia) OD Oculus dexter—right eye O & E Observation and evaluation (hospital inpatient) OOP Out of prosthesis OPT Outpatient treatment ORIF Open (surgical) reduction and internal fixation OS Oculus sinister—left eye OTC Over-the-counter OU Oculus unitas—both eyes

PC Post cibum—after meals PCO2 Carbon dioxide pressure (blood gas) PERLA Pupils Equally Reactive to Light and Air PH Past history PI Present illness; or Preinduction (exam); or Pulmonary incompetence PID Pelvic inflammatory disease PIP Proximal interphalangeal (finger or toe joint) PMD Private medical doctor PMH Past medical history PMI Point of maximal impulse PND Paroxysmal nocturnal dyspnea PO Postoperative; or Per os—by mouth (orally) PO2 Oxygen pressure (blood gas) PPD Purified protein derivative (TB Test); or Packs per day (cigarette smoking history) PR Partial remission; or Presbyopia; or pulse rate; or Per rectum (rectally) PRN As needed PSA Prostate Specific Antigen; or PolySubstance Abuse PT Physical therapy; or Prothrombin time PTA Prior to admission PTB Patellar tendon bearing (prosthesis)

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PUD Peptic ulcer disease PV Peripheral vascular PVD Peripheral vascular disease PVC Premature ventricular contraction PWB Partial weight bearing

q. Each; or every qd Daily q.i.d. Four times per day

RA Rheumatoid arthritis RBC Red blood cell (count) RCA Right coronary artery RCM Right costal margin RF Rheumatoid factor; or Rheumatic fever RFB Retained foreign body RH Rhesus factor (blood type) RHD Rheumatic heart disease RLE Right lower extremity RLL Right lower lobe (of lung) RLQ Right lower quadrant RML Right middle lobe (of lung) R/O Rule out ROM Range of motion ROS Review of symptoms RRR Regular rate and rhythm (of heart) RSR Regular sounds and rhythm (of heart) RTC Return to clinic RTW Return to work RUE Right upper extremity RUL Right upper lobe (of lung) RUQ Right upper quadrant RVH Right ventricular hypertrophy Rx Treatment; or Prescription

S Sacral S1, S2, S3, S4 Systolic heart sounds SAP Substance Abuse Program SFW Shell fragment wound SLC Short leg cast SLE Systemic lupus erythematosus; or Slit lamp examination SLR Straight leg raising SLWC Short leg walking cast SMRs Service medical records SNHL Sensorineural hearing loss SOAP Subjective (complaints); Objective (findings); Assessment; Plan SOB Shortness of breath S/P Status post

S/PO Status postoperative SRT Speech reception threshold STS Serologic test for syphilis; or Soft tissue sarcoma SX Signs; or Symptoms

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T Thoracic; or Tumor; or Time TB (also TBC) Tuberculosis TIA Transient ischemic attack t.i.d. Three times per day TM Tympanic membrane; or Temporomandibular TMJ Temporomandibular joint TPR Temperature; pulse; respiration (rates) TURB Transurethral resection of the (urinary) bladder TURP Transurethral resection of the prostate

UCD (also UCHD) Usual childhood diseases URI Upper respiratory infection UTI Urinary tract infection

VC Vital capacity VD Venereal disease VDRL Venereal Disease Research Laboratories (blood test for syphilis) VIS Visual Impairment Services VIST Visual Impairment Services Team VSULA Vaccination scar upper left arm

WBC White blood cell (count) WD Well developed WDWN Well developed, well nourished WH Well healed WHNT Well healed, not tender WFE Williams Flexion Exercises WJ Wrist jerk (tendon reflex) WN Well nourished WNL Within normal limits

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MEDICAL SYMBOLS

With Without Murmur Right Left Before After or Post ± Not Definite Decrease or depression Increase or elevation Ø Normal or negative > Greater Than < Less Than Δ Change Male Female / Per x Times One Two Three

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APPENDIX C

Special Housing Assistance:

An area of increasing interest for some very disabled veterans is housing assistance. Service officers need to be familiar with basic entitlement and application issues related to Specially Adapted Housing and Special Housing Assistance. However, this area has sufficient complexities and local issues that, with your assistance, the veteran needs to be working closely with the Regional Loan Guaranty Office.

In February 2014 VA Manual 26-12, covering Specially Adapted Housing, was revised, in its entirety, to incorporate legislative and regulatory changes, to reflect current program policies, to reorganize the material in a more logical fashion, and to provide additional guidance and resources to Regional Loan Center staff and management http://www.benefits.va.gov/WARMS/M26_12.asp

The VA’s Adjudication manual was updated in early April 2014 to be more consistent with regulatory changes and to update the internal procedures: http://www.benefits.va.gov/WARMS/M21_1MR9.asp (scroll down to Chapter 3)

VA provides grants to Servicemembers and Veterans with certain permanent and total service-connected disabilities to help purchase or construct an adapted home, or modify an existing home to accommodate a disability. Two grant programs exist: the Specially Adapted Housing (SAH) grant and the Special Housing Adaptation (SHA) grant.

Specially Adapted Housing (SAH) Grant

SAH grants help Veterans with certain service-connected disabilities live independently in a barrier-free environment. SAH grants can be used in one of the following ways:

• Construct a specially adapted home on land to be acquired • Build a home on land already owned if it is suitable for specially adapted housing • Remodel an existing home if it can be made suitable for specially adapted housing • Apply the grant against the unpaid principal mortgage balance of an adapted home already acquired without the assistance of a VA grant • View and share VA's SHA infographic to help spread the word

Special Housing Adaptation (SHA) Grant

SHA grants help Veterans with certain service-connected disabilities adapt or purchase a home to accommodate the disability. You can use SHA grants in one of the following ways:

• Adapt an existing home the Veteran or a family member already owns in which the Veteran lives • Adapt a home the Veteran or family member intends to purchase in which the Veteran will live • Help a Veteran purchase a home already adapted in which the Veteran will live

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Eligibility

A Servicemember or Veteran with a permanent and total service-connected disability, may be entitled to a Specially Adapted Housing (SAH) grant or a Special Housing Adaptation (SHA) grant.

Specially Adapted Housing (SAH) Grant

Beginning June 15, 2006 A Veteran may qualify for up to three Special Adapted Housing grants not to exceed $50,000 in the aggregate, under Public Law 109-233, if he or she is entitled to compensation (including compensation under 38 USC 1151) and rated permanently totally disabled based on any of the following disabilities or combinations: amyotrophic lateral sclerosis (ALS) loss or loss of use of − both lower extremities − one lower extremity and one upper extremity affecting balance or propulsion, or − one lower extremity plus residuals of organic disease or injury affecting balance or propulsion such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; loss or loss or use of both upper extremities precluding use of the arms at or above the elbow; blindness in both eyes, having light perception only, and the loss or loss of use of one lower extremity; or, a severe burn injury − full thickness or subdermal burns that have resulted in contractures with limitation of motion of . two or more extremities, or at least one extremity and the trunk.

The table on the next page provides an overview of VA's housing grant programs for Veterans with certain service-connected disabilities.

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Living Number of Grants You Eligibility Ownership Situation Can Use

• Loss of or loss of use of both legs, OR • Loss of or loss of use of both arms, OR • Blindness in both eyes having only light perception, plus loss of or loss of use of one leg, OR • The loss of or loss of use of one lower leg together with residuals of organic disease or injury, OR Home is owned Maximum of 3 grants, up • The loss of or loss of use of one leg Permanent by an eligible to the maximum dollar together with the loss of or loss of use individual amount allowable of one arm, OR • Certain severe burns, OR • The loss, or loss of use of one or more lower extremeties due to service on or after September 11, 2001, which so affects the functions of balance or propulsion as to preclude ambulating without the aid of braces, crutches, canes, or a wheelchair

These grants may be used to buy, build, or alter and adapt a home for the purpose of making it wheelchair-accessible under applicable guidelines. If the veteran has Loan Guaranty entitlement available and meets credit-worthiness and other criteria, VA may also authorize an additional direct loan of up to $33,000 to help defray the costs of buying, building, or modifying the home.

If the veteran does not qualify for Special Adapted Housing, beginning June 15, 2006 up to three Special Home Adaptation grants not to exceed $10,000 in the aggregate are available for veterans who are entitled to compensation for permanent total disability based either on blindness in both eyes, with vision of 5/200 or less, or anatomical loss or loss of use of both hands. If the veteran has been previously found eligible for Special Adapted Housing, the Special Home Adaptation grant may not be authorized; however, a veteran who is eligible for a Special Home Adaptation grant may later be authorized Special Adapted Housing if additional qualifying disability arises, t the number of grants are limited to three altogether and the total combined amounts may not exceed $50,000 in the aggregate. If the veteran qualifies for both types of grants, only Special Adapted Housing may be authorized. In any event, no

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particular type of adaptation, improvement, or structural alteration may be provided the veteran beyond the specified limits.

This grant may be used to buy, build, or alter and adapt a home for the purpose of making it wheelchair- accessible under applicable guidelines. This is a one-time grant, except as noted below. If the veteran also has Loan Guaranty entitlement available and meets credit-worthiness and other criteria, an additional direct loan of up to $33,000 may be authorized by VA to help defray the costs of buying, building, or modifying the home.

Pursuant to Public Law 110-289, the Housing and Economic Recovery Act of 2008, VA adopted a private-sector residential home cost-of-construction index, the Turner Building Cost Index (TBCI), to determine whether to increase certain SAH grant amounts each year. SAH grant amounts will remain unchanged for fiscal year 2012 because the TBCI did not increase over the last two years for which the information is available.

The aggregate amount of assistance available for SAH grants made pursuant to 38 U.S.C. § 2101(a) will be $63,780 throughout fiscal year 2012. The aggregate amount of assistance available for SAH grants made pursuant to § 2101(b) will be $12,756 during fiscal year 2012. Please note that the Temporary Residence Adaptation (TRA) grant amounts of $14,000 for grants administered under §2101(a) and $2,000 for grants administered under § 2101(b), are not indexed and remain unchanged.

How to Apply

To apply for a grant, fill out and submit VA Form 26-4555, Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant. You can access this form by:

• Applying online via www.ebenefits.va.gov • Downloading VA Form 26-4555, Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant and mailing it to your nearest Regional Loan Center • Calling VA toll free at 1-800-827-1000 to have a claim form mailed to you • Visiting the nearest VA regional office. Find the office nearest you by visiting VA Regional Office Locations or calling VA toll-free at 1-800-827-1000

VA Form 26-4555, Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant, is the official application for Specially Adapted Housing (SAH) program assistance. Without a properly completed VA Form 26-4555 on file, VA will not be able to provide SAH or Special Home Adaptation (SHA) grant assistance to an eligible Veteran.

All necessary fields of VA Form 26-4555 must be legibly completed, and the form must be signed and dated by the Veteran or his/her legal representative.

Note: If VA Form 26-4555 is successfully submitted via eBenefits (https://www.ebenefits.va.gov/), it is deemed completed and signed.

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Important: If the SAH Agent notes that VA Form 26-4555 is signed by someone other than the Veteran, he/she must follow up with the Veteran to determine his/her status regarding ability to sign documents.

It is important to note that VA Form 26-4555 is an application for SAH/SHA grant assistance, and is not an approval of SAH/SHA grant assistance. All applicable statutory and regulatory eligibility, feasibility, suitability, and ownership requirements must be met and final grant approval must be obtained prior to any grant funds being released from the U.S. Treasury (with the exception of death case reimbursements, which do not come from grant funds).

Veterans are encouraged to submit applications for SAH via the eBenefits system (https://www.ebenefits.va.gov/). eBenefits is a central, web-based portal for Veterans and their families to access, research, and manage their benefits and personal information.

Registration is necessary for access to eBenefits and some levels of access require in-person proofing. SAH Agents should refer interested Veterans to the eBenefits website or their Regional Office (RO) of jurisdiction for further information.

When a Veteran submits an application via eBenefits, SAH personnel at the Regional Loan Center (RLC) of jurisdiction are notified electronically for the purposes of tracking and outreach. Veterans may download a copy of VA Form 26-4555 from the VA Home Loan website and complete a hard copy for submission. The web address is:

http://www.vba.va.gov/pubs/forms/VBA-26-4555-ARE.pdf

The completed paper application may then be submitted by mail, e-mail, fax, or hand-delivery to the RLC. The RLC must ensure that the application is properly recorded in the system before delivering it to the Veterans Service Center (VSC) for processing.

For more information the VA recommends contacting a Specially Adapted Housing (SAH) staff member via email at [email protected] or by phone at (877) 827-3702. It may be hepful to go to the SAH Agent page to find an agent near you.

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APPENDIX D

Combined Rating Table and combined rating exercise

Combined Ratings Table

[10 combined with 10 is 19]

10 20 30 40 50 60 70 80 90

19...... 27...... 35...... 43...... 51...... 60...... 68...... 76...... 84...... 92 20...... 28...... 36...... 44...... 52...... 60...... 68...... 76...... 84...... 92 21...... 29...... 37...... 45...... 53...... 61...... 68...... 76...... 84...... 92 22...... 30...... 38...... 45...... 53...... 61...... 69...... 77...... 84...... 92 23...... 31...... 38...... 46...... 54...... 62...... 69...... 77...... 85...... 92 24...... 32...... 39...... 47...... 54...... 62...... 70...... 77...... 85...... 92 25...... 33...... 40...... 48...... 55...... 63...... 70...... 78...... 85...... 93 26...... 33...... 41...... 48...... 56...... 63...... 70...... 78...... 85...... 93 27...... 34...... 42...... 49...... 56...... 64...... 71...... 78...... 85...... 93 28...... 35...... 42...... 50...... 57...... 64...... 71...... 78...... 86...... 93 29...... 36...... 43...... 50...... 57...... 65...... 72...... 79...... 86...... 93 30...... 37...... 44...... 51...... 58...... 65...... 72...... 79...... 86...... 93 31...... 38...... 45...... 52...... 59...... 66...... 72...... 79...... 86...... 93 32...... 39...... 46...... 52...... 59...... 66...... 73...... 80...... 86...... 93 33...... 40...... 46...... 53...... 60...... 67...... 73...... 80...... 87...... 93 34...... 41...... 47...... 54...... 60...... 67...... 74...... 80...... 87...... 93 35...... 42...... 48...... 55...... 61...... 68...... 74...... 81...... 87...... 94 36...... 42...... 49...... 55...... 62...... 68...... 74...... 81...... 87...... 94 37...... 43...... 50...... 56...... 62...... 69...... 75...... 81...... 87...... 94 38...... 44...... 50...... 57...... 63...... 69...... 75...... 81...... 88...... 94 39...... 45...... 51...... 57...... 63...... 70...... 76...... 82...... 88...... 94 40...... 46...... 52...... 58...... 64...... 70...... 76...... 82...... 88...... 94 41...... 47...... 53...... 59...... 65...... 71...... 76...... 82...... 88...... 94 42...... 48...... 54...... 59...... 65...... 71...... 77...... 83...... 88...... 94 43...... 49...... 54...... 60...... 66...... 72...... 77...... 83...... 89...... 94 44...... 50...... 55...... 61...... 66...... 72...... 78...... 83...... 89...... 94 45...... 51...... 56...... 62...... 67...... 73...... 78...... 84...... 89...... 95 46...... 51...... 57...... 62...... 68...... 73...... 78...... 84...... 89...... 95 47...... 52...... 58...... 63...... 68...... 74...... 79...... 84...... 89...... 95 48...... 53...... 58...... 64...... 69...... 74...... 79...... 84...... 90...... 95 49...... 54...... 59...... 64...... 69...... 75...... 80...... 85...... 90...... 95 50...... 55...... 60...... 65...... 70...... 75...... 80...... 85...... 90...... 95 51...... 56...... 61...... 66...... 71...... 76...... 80...... 85...... 90...... 95 52...... 57...... 62...... 66...... 71...... 76...... 81...... 86...... 90...... 95 53...... 58...... 62...... 67...... 72...... 77...... 81...... 86...... 91...... 95 54...... 59...... 63...... 68...... 72...... 77...... 82...... 86...... 91...... 95 55...... 60...... 64...... 69...... 73...... 78...... 82...... 87...... 91...... 96 56...... 60...... 65...... 69...... 74...... 78...... 82...... 87...... 91...... 96 57...... 61...... 66...... 70...... 74...... 79...... 83...... 87...... 91...... 96

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58...... 62...... 66...... 71...... 75...... 79...... 83...... 87...... 92...... 96 59...... 63...... 67...... 71...... 75...... 80...... 84...... 88...... 92...... 96 60...... 64...... 68...... 72...... 76...... 80...... 84...... 88...... 92...... 96 61...... 65...... 69...... 73...... 77...... 81...... 84...... 88...... 92...... 96 62...... 66...... 70...... 73...... 77...... 81...... 85...... 89...... 92...... 96 63...... 67...... 70...... 74...... 78...... 82...... 85...... 89...... 93...... 96 64...... 68...... 71...... 75...... 78...... 82...... 86...... 89...... 93...... 96 65...... 69...... 72...... 76...... 79...... 83...... 86...... 90...... 93...... 97 66...... 69...... 73...... 76...... 80...... 83...... 86...... 90...... 93...... 97 67...... 70...... 74...... 77...... 80...... 84...... 87...... 90...... 93...... 97 68...... 71...... 74...... 78...... 81...... 84...... 87...... 90...... 94...... 97 69...... 72...... 75...... 78...... 81...... 85...... 88...... 91...... 94...... 97 70...... 73...... 76...... 79...... 82...... 85...... 88...... 91...... 94...... 97 71...... 74...... 77...... 80...... 83...... 86...... 88...... 91...... 94...... 97 72...... 75...... 78...... 80...... 83...... 86...... 89...... 92...... 94...... 97 73...... 76...... 78...... 81...... 84...... 87...... 89...... 92...... 95...... 97 74...... 77...... 79...... 82...... 84...... 87...... 90...... 92...... 95...... 97 75...... 78...... 80...... 83...... 85...... 88...... 90...... 93...... 95...... 98 76...... 78...... 81...... 83...... 86...... 88...... 90...... 93...... 95...... 98 77...... 79...... 82...... 84...... 86...... 89...... 91...... 93...... 95...... 98 78...... 80...... 82...... 85...... 87...... 89...... 91...... 93...... 96...... 98 79...... 81...... 83...... 85...... 87...... 90...... 92...... 94...... 96...... 98 80...... 82...... 84...... 86...... 88...... 90...... 92...... 94...... 96...... 98 81...... 83...... 85...... 87...... 89...... 91...... 92...... 94...... 96...... 98 82...... 84...... 86...... 87...... 89...... 91...... 93...... 95...... 96...... 98 83...... 85...... 86...... 88...... 90...... 92...... 93...... 95...... 97...... 98 84...... 86...... 87...... 89...... 90...... 92...... 94...... 95...... 97...... 98 85...... 87...... 88...... 90...... 91...... 93...... 94...... 96...... 97...... 99 86...... 87...... 89...... 90...... 92...... 93...... 94...... 96...... 97...... 99 87...... 88...... 90...... 91...... 92...... 94...... 95...... 96...... 97...... 99 88...... 89...... 90...... 92...... 93...... 94...... 95...... 96...... 98...... 99 89...... 90...... 91...... 92...... 93...... 95...... 96...... 97...... 98...... 99 90...... 91...... 92...... 93...... 94...... 95...... 96...... 97...... 98...... 99 91...... 92...... 93...... 94...... 95...... 96...... 96...... 97...... 98...... 99 92...... 93...... 94...... 94...... 95...... 96...... 97...... 98...... 98...... 99 93...... 94...... 94...... 95...... 96...... 97...... 97...... 98...... 99...... 99 94...... 95...... 95...... 96...... 96...... 97...... 98...... 98...... 99...... 99

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Combined Rating Table Exercises;

The experienced service officer will be familiar with this from training. This exercise is provided as a possible way to help explain use of the table to a veteran.

Veteran has established service connection for a skin condition, a left hand condition, a left elbow condition, and diabetes, each condition evaluated as 10% disabling.

10 10 10 10 30 Okay; how did we get there.

10 + 10 = 19 (We know this because it says so at the top of the table)

19 +10 = 27 (go down the left hand column to 19, then go to the right to the column under 10)

27 + 10 =34 Rounds down to 30% (Rounding applies once; 5 rounds up; 4 rounds down).

Now let’s change the left hand condition to a right hand condition. With a right hand condition and a left elbow condition, the bilateral factor applies to those two conditions. So:

10 + 10 = 19

Add 10% of that, i.e. 1.9%, to get 21%

21 + 10 = 29

29 + 10=36, which rounds up to 40%.

Some more: 30 + 30 + 20 + 10 = 70 30 + 30 =51 51 + 20 =61 61 + 10 =65 which rounds up to 70%

Another way of explaining the combined table is to explain that each disability is taken from the previous percentage of health. In other words, a veteran has two disabilities, each 30% disabling. The first disability is taken from 100%; the veteran is 30% disabled, and is 70% healthy. The next 30% is taken from that 70% healthy (70% x 70% or .7 x .7 if you like math), which works out to 49% healthy, or 51% disabled.

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APPENDIX E

Deductible Medical Expenses for Pensioners

The following is a list as determined by the VA as deductible expenses for reducing the total countable income for the veteran, survivors and dependents. This list is not intended to be all inclusive, but to serve as a guide to the type of items and services that the VA will consider as a medical expense.

Aides, nursing Faucet modifications Q-tips Air conditioning (home/auto) Feeding equipment Ramps ABD's Forceps Repair of Adaptive Equipment Alcohol Food scales Prosthetic or Therapeutic Equip Ace Bandages Foam Mattress pad Raised Roof Van Aspirin, etc. Glasses Raised Toilet Seat Adhesives, (glue, tape) Grab bar Rubber Sheets Air purifier Gauze Shower Chair Applicators Gloves (sterile/non-sterile) Support stockings Braces Home health services Sheepskin Battery charger and repair Hand controls Sensitive power brakes Batteries for wheel chair Hospital bed Sensitive power steering Band-Aids Hot water bottle Steering wheel equipment Betadine Heating pad Sidewalk modification Benzoin Hoyer lift Standing frame Binders Humidifier Splints Bufferin, etc. Intercom devices Suppositories Blood Pressure kits Ice Packs Special Solutions Bedpans Iodine Syringes Cushions Inhalation machine Shower adaptation Catheters Kling Sliding Board Chux Lowered floor van Salves Clamps Lowered cabinets Stethoscope Cold preparations Lubricants Suctioning devices Clothing adaptations Lotions Travel for Medical Need Crutches Laxatives Tie downs Canes Leg bag Trapeze for overbed Corsets Medications (Scripts & OTC) Therapy (PT, OT, ST) Cotton balls Mattress for Hospital bed Tub seat Clinitest kits Medicated shampoo Tubing GU Dental expenses Mercurochrome Tape Diet, special (MD ordered) Maalox/mylanta Telephone equipment (special) Doctor's visits Nose drops Thermometer Door widening Ointments Utensils (adaptive) Drainage bags Paramedic services Vitamins (by prescription only) Dressings Power doors (van) Van lift Dehumidifier Power windows (van/car) Voice Amplifier Eye Exams Portable Ramp Wheelchair and repairs Enlarging rooms for adaptation Phisonex soap Water, bottled Egg crate mattress Pepto bismal Weights (for PT) Environmental control Pillows X-ray Emesis basin External catheter

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APPENDIX F

Department of Veterans Affairs Forms

The list of forms below consists of the forms service representative will most often encounter in the course of assisting veterans and their dependents or survivors, although the frequency of use will vary greatly. It may be useful to have some of these forms in stock, proportionate to the frequency with which they are needed. In addition, most of the most commonly used VA forms may now also be downloaded from WARMS (, click on “VA Forms” in the right-hand sidebar), which will greatly reduce the number of forms that must be kept in stock. Also, certain select applications may be directly completed and submitted on-line (see the online listing for the particular benefit). So that service officers can become familiar with the type of information requested in the forms, and see the Instructions that come with the forms, some of the most common forms are shown in the “Form Locker” following Appendix Q.

Note that most of the forms are prefixed according to the VA activity which uses them; i.e. forms with prefix 10 are generally VHA forms; forms with prefix 21 are generally Compensation and Pension Forms; Forms prefixed with 22 are generally education forms, etc. . Note also that the list also includes several Department of Defense (DD) forms and Standard Forms (SF), as well as National Archive (NA) forms.

Form Number Title

Medical

10-10 EZ Application for Medical Benefits

10-10 EZR Health benefits Renewal

10-10D Application for Medical Benefits for Dependents Or Survivors – CHAMPVA

10-0103 Application for HISA Grant

10-583 Claim for Payment of Cost of Unauthorized Medical

10-1394 Application for Adaptive Equipment – Motor Vehicle

10-5345 Release of Protected Medical Records

10-7959A CHAMPVA Claim Form

10-7959C CHAMPVA Other Health Insurance

70-3288 Request for and Consent to Release of Information From Claimant’s Records

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Compensation and Pension

9 Appeal to Board of Veterans Appeals

5655 Financial Status Report

21-22 Appointment of Veterans Service Organization as Claimants Representative

21-509 Statement of Dependency of Parents

21-526 Veteran’s Application for Compensation or Pension

21-527 Income-Net Worth and Employment Statement

21-534 Application for Dependency and Indemnity Compensation or Death Pension by Surviving Spouse or Child

21-535 Application for Dependency and Indemnity Compensation by Parent(s)

21-601 Application for Reimbursement for Accrued Amounts Due a Deceased Beneficiary

21-609 Application for Amounts Due Estates of Persons Entitled to Benefits

21-614 Application for Accrued Amount of Veteran’s Benefits payable to Widow, Widower, Child or Dependent Parent

21-651 Election of Compensation or Pension or Waiver of Retired Pay to Secure Compensation or Pension from DVA

21-674 Request for Approval of School Attendance

21-674b School Attendance Report

21-686C Declaration of Status of Dependents

21-304 Application for Spina Bifida Benefits

21-0511S-1 Old Law Eligibility Verification Report (Surviving spouse)

21-0511V-1 Old Law Eligibility Verification Report (Veteran)

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21-0512S Section 306 Eligibility Verification Report (Surviving Spouse)

21-0512V-1 Section 306 Eligibility Verification Report (Veteran)

21-0513-1 Old Law and Section 306 Eligibility Verification Report (Children Only)

21-0514-1 DIC Parent’s Eligibility Verification Report

21-0516-1 Improved Pension Eligibility Verification Report (Veteran with NO Children)

21-0517-1 Improved Pension Eligibility Verification Report (veteran with children)

21-0518-1 Improved Pension Eligibility Verification Report (Surviving Spouse with No Children)

21-0519C-1 Improved Pension Eligibility Verification Report (Child or Children)

21-0519S-1 Improved Pension Eligibility Verification Report (Surviving Spouse with Children)

21-0571 Exclusion of Child(ren) Income

21-0958 Form for Notice of Disagreement

21-2680 Claim for A&A or Housebound

21-0781 PTSD Stressor request

21-4138 Statement in Support of Claim

21-4140 Employment Questionnaire

21-4142 Authorization for Release of Information

21-4165 Pension Claim Questionnaire for Farm Income

21-4183 Application for Dependency and Indemnity Compensation by Child

21-4184 Report of Income from Property or Business

21-4192 Request for Employment Information in Connection with Claim for Disability Benefits

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21-4502 Application for Automobile or other Conveyance and Adaptive Equipment

21-4555 Veteran’s Initial Application in Acquiring Specially Adapted Housing

21-8049 Request for Details of Expenses

21-8416 Request for Information Concerning Medical, Legal or Other Expenses

21-8678 Application for annual Clothing Allowance

21-8960 Certification of School Attendance or Termination

21-8940 Veteran’s Application for Increased Compensation Based on Unemployability

21-8551-2 Waiver of VA Compensation or Pension to Receive Military Pay and Allowances

Education

4-5281 Application for Refund of Education Contributions VEAP Chapter 32

20-8691 Application for Work Study Allowance

22-1990 Veteran’s Application for Program of Education or Training

22-1995 Request for Change of Program or Place of Training

22-1999 Enrollment Certification

22-5490 Application for Educational Assistance (Survivors And Dependents)

22-5495 Request for Change of Program or Place of Training for Survivors and Dependents Education.

22-8275 Application for Education Loan

Loan Guarantee

26-1817 Application for Determination of Basic Eligibility Unremarried Surviving Spouse

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26-1880 Request for Determination of Eligibility and Available Loan Guaranty Entitlement

26-6381 Application for Release from Personal Liability to the Government on a Home Loan (must also submit 26-6382)

26-6382 Statement of Purchaser or Owner Assuming Seller’s Loan (must also submit 26-6381)

Vocational Rehabilitation

28-1900 Disabled Veterans Application for Vocational Rehabilitation

28-8832 Veteran Application for Counseling

Insurance – Health/Life

10-10d Application for Medical Benefits for Dependents or Survivors – CHAMPVA

29-336 Designation of Beneficiary and Optional Settlement

29-357 Claim for Disability Insurance Benefits

29-358 Application for Conversion

29-188 Application for Supplemental Service Disabled Veterans Life Insurance (RH)

29-1546 Application for Cash Surrender Value

29-1606 Application for Total Disability Income Provision (Medical)

29-4125 Claim for One Sum Payment (All policy prefixes)

29-4364 Application for National Service Life Insurance (Medical)(RH)

29-8713 Application for SGLI (Retired Reservists)

SGLV 8713 Application for VGLI (Submitted within 120 days of Separation)

SGLV 8714-3 Application for VGLI (Submitted within one year of Separation)

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Burial

21-530 Application for Burial Allowance

40-1330 Application for Standard Headstone or Marker

90-2008 Application for United States Flag for Burial Purposes

Other Federal Government Agencies

Form Number Title

Department of Defense Forms

DD-149 Application for Correction of Military or Naval Record

DD-293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States

DD-397 Claim Certification and Voucher for Death Gratuity Payment

DD-1172 Application for Uniformed Services Identification And Privilege Card

DD-2168 Application for Discharge of Member or Survivor of Member of Group Certified to have performed Active Duty with the Armed Forces of the United States

DD-2567 Pearl Harbor Commemorative Medal Application/Information

DD-2642 Patient’s Request for Medical Payment (CHAMPUS/TRICARE)

Other Federal Government Forms

SF-180 Request Pertaining to Military Records

SF-15 Application for 10 Point Veteran Preference (To Be Used By Veterans and Relatives of Veterans)

SF 95 Claim for Damage, Injury, or Death (Tort Claim) SF 1199a Direct Deposit Sign-up Form (used by banks)

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APPENDIX G

EVIDENCE, PROOF, NEW AND MATERIAL EVIDENCE

A way of quantifying proof and evidence

Beyond a Reasonable Doubt: Think 95-98%

Clear and Convincing Think 75-80%

Preponderance of the Evidence Think 51%

Equipoise Think 50%

This is one interpretation. Legal scholars can and will debate this. This should work for you in most cases.

NEW AND MATERIAL EVIDENCE

To reopen a previously denied claim, a claimant must submit evidence that is “new and material” (see 38 CFR §3.156). This is a specific legal requirement that may be difficult to explain. The following “levels of evidence” may be helpful:

Evidence may be:

Duplicate: VA already had this and considered it when the previous decision was made (this comes up when a veteran has asked for copies of his claims file, receives the copy, and then mails it back to VA in an attempt to reopen his claim).

Cumulative: this evidence does not duplicate what the VA had, but is simply repeats the substance of what VA already had.

New: this is evidence that VA had when it made the prior decision, but it is not relevant to the issue under consideration, nor is to probative regarding the “missing element” in the prior decision. A simple example would be submitting evidence of additional tours in Vietnam showing herbicide exposure, when the claim was denied because there was no medical evidence showing a diagnosis of a herbicide related presumptive condition.

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New and Material: this is evidence that wasn’t of record previously, and it is probative or relevant to the issue under discussion. This evidence meets the requirement of 38 CFR 3.156 to permit the claim to be reopened. Note that this means the claim has been successfully reopened; it does not mean that the reopened claim will necessarily be granted.

Additional research tools: 38 C.F.R. §§ 3.102, 3.103, 4.6, and M21-1MR III, iv, Ch 5. The manual chapter provides a lengthy but comparatively clear explanation of how VA raters are to evaluate and weigh evidence.

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APPENDIX H

Former POWs

Former Prisoners of War (POW) are eligible for a host of benefits through the Department of Veteran Affairs. Each regional office has a coordinator that is responsible for assisting former POWs and their survivors and dependents access the benefits they are entitled to. Former POWs are generally entitled to a presumption of service connection for eight diseases, regardless of their length of captivity, if manifested to a degree of 10 percent or more after discharge or release from active military, naval or air service. The diseases are Psychosis, Dysthymic disorder or depressive neurosis, Post traumatic osteoarthritis, any of the anxiety states, cold injury, stroke and complications, heart disease and complications; and Osteoporosis, when Post Traumatic Stress Disorder is diagnosed, on or after October 10, 2008. [See 38 C.F.R. §3.309(c).

If a former POW was interned for 30 days or more, the following additional diseases are presumed to be service connected: Avitaminosis, Chronic Dysentery, Helminthiasis, malnutrition, including associated Optic Atrophy, any other nutritional deficiency, Peptic Ulcer disease, Beriberi, Cirrhosis of the liver, Irritable Bowel Syndrome, Pellagra and any other nutritional deficiency, Peripheral Neuropathy, except where directly related to infectious causes, and Osteoporosis, on or after September 28, 2009. Additionally, they receive priority treatment at VA medical centers. Former POWs who have service connected disabilities are eligible for in-patient and outpatient treatment, as well as nursing home care. Those who do not have a service-connected disability are eligible for VA hospital and nursing home care, regardless of their ability to pay. They are also eligible for outpatient care on a priority basis, second only to Veterans with service-connected disabilities. All former POWs are eligible for dental care.

Survivors of former POWs may be entitled to receive Dependency and Indemnity Compensation (DIC);a monthly benefit payable to the surviving spouse when the former POW was a service member who died on active duty; or died from service-related disabilities; or •died on or before September 30, 1999 and was continuously rated totally disabled for a service connected condition for at least 10 years immediately preceding death; or•died after September 30, 1999 and was continuously rated totally disabled for a service connected condition for at least 1 year immediately preceding death.

DIC is terminated for a surviving spouse who remarries, but can be resumed if the remarriage ends in death, divorce or annulment. However, a surviving spouse who remarries on or after age 57, and on or after December16,2003, can continue to receive DIC. Other benefits, such as education, loan guaranty, insurance and vocational rehabilitation and employment, to name a few, may also be available. For more information contact the former POW coordinator at the local regional office, or visit

Each VA Regional Office should have a POW Veterans Outreach Coordinator who is a direct point of contact for you and/or the veteran to learn more about what benefits they qualify for, assist with applying for those benefits, and refer you or the veteran to other organizations and resources that will help you meet their needs. Find the local POW Veterans Outreach Coordinator at the nearest VA Regional Office.

http://www.benefits.va.gov/persona/veteran-pow.asp

M21-1MR, Part III, Subpart iii, Chapter 2, Section G

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APPENDIX I

INCOMPETENCY

This material is provided as a quick reference to the issue of incompetency. The issues involved are complicated and delicate, and liaison with the Regional Office should be very helpful if a Service Officer has to deal with cases involving competency.

The rating activity has sole authority to make determinations of competency and incompetency for Department of Veterans Affairs (VA) purposes.

Reference: For more information determining incompetency, see M21-1MR, Part III, Supbart IV, Chapter 8, and Subpart V, Chapter 9; and 38 CFR 3.353(b).

Judicial findings of a court with respect to competency of a veteran are not binding on the rating activity. However, if a veteran is declared by a court to be incompetent, VA should develop all necessary evidence for a rating determination. A finding of incompetency cannot be made without a definite expression by a responsible medical authority, unless the medical evidence of record is

clear convincing, and leaves no doubt as to the beneficiary’s incompetency.

Reference: For more information on medical authority in a finding of competency, see 38 CFR 3.353(c)

If the claimant is a veteran, VA raters are to consider competency an inferred issue in every case of a totally disabling mental disorder, or if other evidence raises a question as to the beneficiary’s mental capacity to contract or to manage his/her own affairs, including disbursement of funds without limitation.

Reference: For more information on inferred issues, see M21-1MR, Part III, Subpart iv, Chapter 6, Section B

For a VA video: https://www.youtube.com/watch?v=cOrYqtPh8oc

The VA procedures regarding incompetency determinations are designed to provide the veteran appropriate due process, protect the veteran’s rights, and make a determination that is intended to be in the veteran’s best interest. The following chart is helpful in understanding the procedural steps.

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Stage Who Is Action Responsible 1 Rating Prepares a rating decision proposing a finding of Veterans incompetency after receiving clear and convincing Service evidence that the payee is incapable of managing Representative his/her own affairs, including disbursement of (RVSR) funds without limitation.

Note: A rating is not necessary for any payee besides a veteran, if there is a finding of incompetency by a court. For all payees, however, a court adjudication waives the due process requirement. 2 Veterans Provides the payee notice of Service − the proposed incompetency rating, and Representative − the opportunity for a hearing (VSR) clears any pending end product (EP) that would normally be taken at this point establishes EP 600 to control the proposal of incompetency, and allows 65 days for a response.

Notes: If a request for a hearing is received within 30 days of the notice, no rating action can be completed until the hearing is held or the payee fails to report. At the hearing, allow the next of kin or any other person of the payee’s choice to participate and assist the payee. 3 RVSR Makes a final decision based on all of the evidence of record. 4 VSR Prepares VA Form 21-592, Request for Appointment of a Fiduciary, Custodian, or Guardian, for use by the fiduciary activity.

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APPENDIX J

PREDETERMINATION NOTICE AND DUE PROCESS

This appendix is intended to provide a quick reference to the due process procedures that VA is required to adhere to. For more complete information when a case is encountered please refer to M21-1MR, Part I, Chapter 2, Section B.

The Fifth Amendment to the U.S. Constitution ensures that citizens have the right of due process.

“No person shall be deprived of life, liberty or property without due process of law.”

Various court decisions have found a property right in gratuitous government benefits, such as recurring monetary benefits from the VA. Due process in the administration of VA benefits requires VA to inform the beneficiary of a proposed adverse action that could reduce or terminate benefits, and provides the beneficiary with the opportunity to

provide additional evidence to contest the action, and/or hold a hearing before VA decision-makers.

In most instances, due process applies when VA proposes to reduce or terminate a benefit. In a few situations, such as a character of discharge determination, due process applies before VA determines eligibility for benefits.

Reference: For more information on due process, see 38 CFR 3.103

The following parties are entitled to notification of any decision made by VA that affects the payment of benefits or the granting of relief:

beneficiaries fiduciaries of minor or incompetent beneficiaries, and beneficiaries’ designated representatives

No notice of termination (contemporaneous or otherwise) is required when VA receives

a death certificate (including telegraphic notice of death from a foreign service post official) a terminal hospital report verifying the death of a beneficiary, or a claim for VA burial benefits (including, but not limited to, VA Form 21-2008, Application for United States Flag for Burial Purposes

Generally, VA must send the beneficiary and his/her representative (if any) a notice of proposed adverse action prior to taking any unfavorable action affecting his/her benefits, including

reductions suspensions, or terminations

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A notice of proposed adverse action is required when VA proposes an action based upon third party information that could adversely affect the payment of benefits.

“Third party information” is any information that is not received from the beneficiary or from the beneficiary’s fiduciary. Written correspondence is considered third party when received without the beneficiary’s signature, or the signature of his/her fiduciary.

A notice of proposed adverse action is also required when benefits are being reduced or terminated based on a rating or administrative action. e.g. see 38 CFR §3.105, especially subsections (d)and (e).

Sometimes a veteran is granted an increased payment for a disability following an event, such as a joint replacement or heart attack, for which the rating schedule provides a temporary evaluation for a specified period of time. In this situation, because the veteran is fully informed of the date and reasons for the prospective adjustment, no notice of proposed adverse action is needed before the evaluation is reduced.

A notice of proposed adverse action is also required when an apportionment of benefits is requested by or on behalf of a beneficiary’s dependent.

Every notice of proposed adverse action must include the following elements: a statement of the proposed decision, including new rates of payment the proposed effective date of the decision information on the possible creation of an overpayment detailed reasons for the proposed decision, and the right to present evidence, request a personal hearing, and have representation.

The beneficiary needs to understand that in many cases deferring a reduction for the full period allowed by predetermination notice may create or increase a possible overpayment.

See the chart on the next page for additional information.

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Element Description Statement of states the proposed effective date, and proposed informs the beneficiary that effective date − he/she has 60 days to respond to the proposed decision, and − the payment of benefits will continue through the 60-day period.

Note: The requirement that payments be continued through the 60-day period does not alter the effective date of the proposed reduction or termination.

Reference: For more information on effective dates for reduced benefits, see 38 CFR 3.500 to 3.505. Statement advises the beneficiary that if the proposed adverse advising action is implemented, he/she must repay any beneficiary of overpayment resulting from the continuation of potential payments during the proposed adverse action period, overpayment and informs the beneficiary that he/she may minimize any potential overpayment by requesting that the award be adjusted immediately. Basis for States proposed the facts and reasons for the proposed action (38 CFR decision 3.103) the evidence under consideration, and the proposed rates and any calculations used to arrive at the proposed rates. Rights of Informs the beneficiary of the right to beneficiary present evidence request a personal hearing, and have representation.

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APPENDIX K

Claims Based on Exposure to Contaminated Drinking Water at Camp Lejeune

This appendix includes excerpts from April 2011 and March 2013 Training Letters on these claims.

Veterans who served at U.S. Marine Corps Base Camp Lejeune, North Carolina, were potentially exposed to contaminants present in the base water supply prior to 1987. The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. However, many unanswered questions remain regarding the extent of base water contamination, the type and duration of exposure experienced by base personnel, and the likelihood that contaminant levels in the water supply were high enough to result in a particular disease.

From 1953 to 1987, water sources at the base were contaminated with industrial solvents that are correlated with certain health conditions. Secretary of Veterans Affairs Robert A. McDonald decided to propose presumptions of service connection for certain conditions associated with these chemical solvents following discussions between environmental health experts at the Veterans Health Administration and the Department of Health and Human Services Agency for Toxic Substances and Disease Registry (ATSDR). “The water at Camp Lejeune was a hidden hazard, and it is only years later that we know how dangerous it was,” said Secretary McDonald. “We thank ATSDR for the thorough review that provided much of the evidence we needed to fully compensate Veterans who develop one of the conditions known to be related to exposure to the compounds in the drinking water.”

The United States Marine Corps Base Camp Lejeune, NC, was established in 1941. In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. The main source of TCE contamination was on-base industrial activities, while the main source of PCE was an off-base dry cleaning facility. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. These water systems served housing, administrative, and recreational facilities, as well as the base hospital. Department of the Navy estimates indicate that as many as 630,000 active duty personnel may have been exposed. The contaminated wells supplying the water systems were identified and shut down by February 1985. The Agency for Toxic Substances and Disease Registry (ATSDR), a branch of the Department of Health and Human Services, conducted a Public Health Assessment of Camp Lejeune in 1997, which did not determine whether base personnel experienced any long-term health effects from consumption of the contaminated water. However, the assessment indicated that the drinking water contaminants at Camp Lejeune created a “past public health hazard.” Follow up studies by ATSDR focused on potential birth defects experienced by mothers exposed to the drinking water.

In 2008, as public awarness of Camp Lejeune increased, the Navy sent an informational outreach letter to those individuals who could be identified as having served there between 1957 and 1987. Apparently, the Navy felt that including individuals serving until 1987 would cover potential exposure from any residual contaminants present in the water beyond the well closings in 1985. The letter notified these former service members that “unregulated chemicals were discoved in some of the base drinking water systems” and encouraged them to participate in a registry so as to receive information from new health- related scientific studies initiated by the Navy. These studies involved the National Academy of Sciences’ National Research Council (NRC) and ATSDR.

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Based on a congressional mandate, the Navy requested that NRC undertake a study to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), NRC reviewed previous work done by ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, NRC focused on diseases associated with TCE, PCE, and other VOCs. Based on analyses of scientific studies involving these chemicals, NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants.

Based upon VA’s review of current medical science and ATSDR’s findings, Secretary McDonald intends to propose creation of a presumption of service connection for the following conditions:

Kidney Cancer Liver Cancer Non-Hodgkin Lymphoma Leukemia Multiple Myeloma Scleroderma Parkinson's Disease Aplastic Anemia / Myelodysplastic Syndromes

The Secretary’s proposal would also expand benefits eligibility to Reserve and National Guard personnel who served at Camp Lejeune for any length of time from August 1, 1953, through December 31, 1987. These personnel would be presumed to have been exposed to the contaminated water during their Reserve or National Guard service and, in appropriate circumstances, to have been disabled by such exposure during service, thus allowing them to qualify for VA benefits under the statutory definition of “Veteran.” This would make them eligible for VA disability compensation and medical care for any of the presumptive conditions, and their surviving dependents would be eligible for dependency and indemnity compensation and burial benefits.

While these issues are being studied, the Department of Veterans Affairs (VA) has determined that disability claims from Veterans who served at Camp Lejeune during this period deserve special handling to ensure fairness and consistency in claims processing. As a result, adjudication of these claims has been centralized at the Louisville, Kentucky, Regional Office with tracking measures initiated.

Evidence development for disability claims based on water contaminant exposure at Camp Lejeune requires obtaining verification of actual service at Camp Lejeune and as much detail as possible about that service. It also requires verifying, with medical evidence obtained through a VA medical examination or other authoritative medical source, whether a claimed current disease or disability is at least as likely as not a result of exposure to the chemical compounds present in the water at Camp Lejeune. A number of diseases are identified in the training letter that meet the criterion of being associated with exposure to the specific Camp Lejeune water contaminants, based on human and experimental animal studies. Manifestation of any of these diseases would be sufficient to initiate a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. However, this is not an exclusive list. Medical evidence provided by a Veteran indicating that some

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other disease may be related to the known water contaminants would also be sufficient to initiate a VA examination.

On August 6, 2012, the President signed the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012,” Public Law 112-154, This section amends 38 U.S.C. Chapter 17 to extend hospital care and medical services coverage for certain illnesses or conditions to eligible Veterans and family members who served on active duty or resided at Camp Lejeune, North Carolina, for not fewer than 30days during the period beginning on January 1, 1957, and ending on December 31, 1987. This provision took effect on August 6, 2012. Note: The Agency for Toxic Substances and Disease Registry recently announced that there is sufficient data to substantiate that water at Camp Lejeune exceeded safe levels for human consumption beginning in August 1953. Although the law has not yet been amended to extend health care prior to 1957, VBA, for purposes of adjudicating claims, acknowledges that any given Veteran-claimant who served at Camp Lejeune between August 1953 and 1987 was potentially exposed to water contaminants.

http://www.benefits.va.gov/compensation/claims-postservice-exposures-camp_lejeune_water.asp

Veterans who served at Camp Lejeune for 30 days or more between August 1, 1953, and December 31, 1987, are already eligible to receive VA healthcare for up to 15 health conditions. More information, including a full list of covered conditions, can be found online at: http://www.publichealth.va.gov/PUBLICHEALTH/exposures/camp-lejeune/index.asp. Veterans can establish eligibility for healthcare benefits by submitting VA Form 10-10EZ online at www.1010ez.med.va.gov/, downloading it at www.va.gov/vaforms/medical/pdf/1010EZ-fillable.pdf and returning it to any VA Medical Center or Clinic, or by calling 1-877-222-VETS (8387), Monday through Friday, between the hours of 8:00 AM and 8:00 PM (Eastern Time).

VA is reimbursing certain veterans’ family members for eligible out-of-pocket medical expenses related to the 15 covered conditions. More information can be found at: https://www.clfamilymembers.fsc.va.gov http://www.publichealth.va.gov/exposures/camp-lejeune/index.asp http://www.va.gov/healthbenefits/resources/publications/IB10- 449_camp_lejeune_water_contamination_rev12_13.pdf (this link leads to a December 2013 pamphlet)

Advocacy Tip: Service Officers who have claimants potentially eligible should encourage those claimants to file claims if they have not already done so, and to be aware of updated information pertinent to those claims on the VA websites. It is also suggested that Service Officers should request copies of Training Letters 11-03, April 27, 2011; and 13-05, March 26, 2013.

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APPENDIX L

Supplemental information on Agent Orange

http://www.publichealth.va.gov/exposures/agentorange/locations/index.asp

http://www.publichealth.va.gov/exposures/agentorange/index.asp

38 C.F.R. §3.309, §3.313, §3.813, §3.814, §3.815, §3.816 [http://www.benefits.va.gov/WARMS/bookb.asp#g]

http://www.benefits.va.gov/compensation/claims-postservice-agent_orange.asp

First, some very basic points.

1)Agent Orange is one of several herbicides used in Vietnam during the Vietnam conflict. As Agent Orange was, by far, the most commonly used, “Agent Orange” and “herbicide” are used somewhat interchangeably in many documents. Herbicides were also used in a number of locations outside Vietnam.

2)Agent Orange, and the other herbicides, get their names from the coloring on the barrels that the herbicide was transported in.

3)38 C.F.R. 3.309(e)provides a list of conditions considered, by regulation, to be related to such exposure. That regulation should be read in conjunction with 38 C.F.R. 3.307, which discusses various aspects of presumption, exposure, and the like. Note that when discussing disabilities presumed to be related to herbicide exposure, 38 C.F.R. 3.313 is also for consideration, although that regulation refers to Vietnam service only, and does not mention herbicide exposure.

4)Since 1990 there have been multiple changes to the regulations regarding disabilities presumed to be related to herbicide exposure; almost all of these changes have been liberalizations to the list of conditions presumed to be related, to the areas and circumstances where exposure may be presumed or at least considered, and to the time limits during which conditions need to become manifest.

5)It is critical that veterans understand that there is no minimum time limit for exposure to be conceded; even half an hour in Vietnam during the Vietnam conflict is considered to be sufficient.

6)There are areas outside of Vietnam where, at various times, exposure to herbicides may be conceded by VA, or subject to verification. Over the last several years the list of areas, and ships, has increased. It would be very prudent to look at the list of U.S. Navy and Coast Guard ships that operated in Vietnam to confirm whether service aboard a ship allows VA to concede exposure to herbicides. That section of the manual includes a list of the conditions currently considered to be related to herbicide exposure, and considerable information on possible exposure outside of Vietnam, and procedures to be followed in confirming such exposure.

7)Because of the ongoing review of conditions considered to be related to herbicide exposure, and because of the settlement in the Nehmer case, in many cases an award of benefits in herbicide exposure can go back several years. This is particularly relevant in the cases where benefits were previously

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denied because, at the time of denial, there was insufficient medical evidence to show a relationship between the claimed condition and herbicide exposure.

In May 1991, the Nehmer parties entered into a "Final Stipulation and Order" (Final Stipulation) outlining the actions to be taken in response to the Court's decision.

In a February 1999 decision, the Court clarified the scope of its 1989 decision. It voided all VA decisions that were issued while the invalid regulation was in effect and which denied service connection for a Vietnam Veteran's disease that was later found to be associated with herbicide exposure under new regulations.

In December 2000, the Court provided further clarification when it concluded that VA must pay the full retroactive benefit to the estates of deceased class members.

On September 24, 2003, a new regulation, 38 C.F.R. § 3.816, was added to provide guidance in the adjudication of claims under the Nehmer litigation.

By definition, if a case falls under Nehmer, it means that the first claim of service connection for the condition at issue was received BEFORE the condition was added to the list of Agent Orange-related disabilities and the effective date for the grant of service connection will also be BEFORE the condition was added to the list of Agent Orange-related disabilities.

As a result, if a claim was received before the condition was added to 38 C.F.R. § 3.309(e), the case is a potential Nehmer case. On the other hand if the claim was received after the disease was added to the presumptive list, it is not a Nehmer case.

If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, eligibility requirements must be met. The eligibility requirements are: • The Veteran served in the Republic of Vietnam; and • Has applied, were denied, or a claim was inferred (by class member or VA) for benefits for one of the three new presumptive conditions between September 25, 1985, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985, and the date the regulations for these conditions become effective; and • Is diagnosed with one of the presumptive diseases, or a disease that reasonably may be construed as a covered herbicide disease. Nehmer only applies to cases of herbicide exposure in Vietnam.

Spina bifida benefits are only payable for veterans who were exposed to herbicides in Vietnam or Korea 38 C.F.R. § 3.814

Benefits for birth defects for children of female veterans are only payable for children of female veterans who were in Vietnam Please note 38 C.F.R. §3.815 http://www.publichealth.va.gov/exposures/agentorange/birth_defects.asp

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APPENDIX M

Supplemental information on PTSD

The Department of Veterans Affairs (VA) has amended its rules for adjudicating disability compensation claims for posttraumatic stress disorder (PTSD) contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision adds to the types of claims in which VA will accept credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development. VA’s specific PTSD regulation, § 3.304(f), previously authorized VA to only accept statements from Veterans who served in combat as sufficient to establish the occurrence of the claimed in-service stressor. VA later amended its PTSD regulations to also accept the statements of Veterans who are former prisoners of war and those with an in-service diagnosis of PTSD as sufficient to establish occurrence of an in-service stressor if they are consistent with the places, types, and circumstances of service.

Although PTSD was not officially recognized as a clinical condition until 1980, a stress disorder experienced by Civil War soldiers engaged in heavy fighting was referred to as “irritable heart” or “soldier’s heart.” In later wars similar symptoms were termed “shell shock”, “combat neurosis” or "battle fatigue." Following the American Psychiatric Association (APA)’s recognition of PTSD as a diagnostic entity in DSM-III[the third edition of the Diagnostic and Statistical Manual of Mental Disorders], VA amended its rating schedule for mental disorders to include PTSD as a distinct and ratable disability.

In May 1993, VA amended 38 CFR § 3.304 to include subsection (f), which first established VA’s regulatory rules for granting service connection for PTSD. The regulation directed that service connection for PTSD required demonstration of the following three elements: (1) a clear diagnosis of the condition; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in- service stressor.

The APA, in 1996, approved DSM-IV for clinical use and VA followed in October 1996 by amending 38 CFR § 4.125 to require that a mental disorder diagnosis conform with the latest DSM edition and also revised its rating criteria for mental disorders to reflect the latest clinical and diagnostic terminology.

The CAVC, in reviewing the DSM-IV criteria for PTSD in its March 1997 decision in Cohen v. Brown, 10 Vet.App. 128 (1997), observed the shift in diagnostic criteria in DSM-IV and held the following:

“The criteria have changed from an objective [“would evoke... in almost anyone”] standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. The criteria now requires exposure to a traumatic event and a response involving fear, helplessness, or horror. A more susceptible individual may have PTSD based on exposure to a stressor that would not necessarily have the same effect on “almost anyone.”

In March 2002, VA revised its PTSD regulation to provide examples of the types of evidence that may be relevant in corroborating a Veteran's statement regarding the occurrence of a stressor in claims for service connection for PTSD resulting from personal assault, as well as an overview of the adjudicative rules for such PTSD personal assault claims. In October 2008, VA again amended its PTSD regulation to provide that a Veteran’s lay testimony alone may establish the occurrence of an in-service stressor if

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PTSD is diagnosed in service, the claimed stressor is related to that service, and the stressor is consistent with the places, types, and circumstances of service.

The DSM-V was published on May 18, 2013, superseding the DSM-IV-TR, which was published in 2000. The fifth edition was criticized by various authorities both before and after it was formally published. As of August 2014, 38 C.F.R. §4.125 has been amended to reflect adoption by VA of the changed diagnostic criteria for Post Traumatic Stress Disorder in DSM V.

New 38 CFR § 3.304(f)(3)

VA’s decision to amend the stressor requirements of § 3.304(f) took into consideration the current scientific research studies relating PTSD to exposure to hostile military and terrorist actions. The amendment acknowledges the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. (See PTSD Compensation and Military Service, Institute of Medicine, 2007).

The amendment is also intended to permit more timely adjudication of PTSD claims by simplifying the development actions and research procedures applicable to PTSD claims. VA will now rely on a Veteran’s lay testimony alone to establish occurrence of a stressor related to fear of hostile military or terrorist activity, provided that the claimed stressor is consistent with the places, types, and circumstances of service, and a VA psychiatrist or psychologist, or contract equivalent, determines that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran’s symptoms are related to the claimed stressor.

The new § 3.304(f)(3) defines “fear of hostile military or terrorist activity” to mean that a Veteran experienced, witnessed, or was confronted with, an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others and the Veteran’s response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. The event or circumstances include (but are not limited to) the following:

• Actual or potential improvised explosive device (IED); • Vehicle-imbedded explosive device; • Incoming artillery, rocket, or mortar fire; • Small arms fire, including suspected sniper fire; or • Attack upon friendly aircraft.

The regulatory change will redesignate current paragraphs (3) and (4) of § 3.304(f) as paragraphs (4) and (5) and insert the liberalizing stressor criteria in new paragraph (3).

The relaxed criteria contained in new § 3.304(f)(3) will be applied to PTSD service connection claims based on “fear of hostile military or terrorist activities” that are pending as of the effective date of the regulation and to claims filed on or after the effective date.

In many cases, but particularly with claims for service connection for PTSD, a veteran may claim participation in “Black Ops”, and argue that there will be no records of his participation in such an operation as that information would be “classified”. Recently, VA and DOD initiated a program where participation in such an operation can be confirmed, without, of course, any specific information as to the substance of that operation. Advocates encountering such claims should be familiar Fast Letter 09-

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52 with which provides VA claims processors a procedure for verifying such participation. VA now has some capability of verifying or denying participation in “Special Operations” with the service department.

This has to be done by VA designated personnel. If needed, refer to Fast Letter 09-52 in your submission.

The veteran must respond to a specific questionnaire providing the information needed for a search of relevant records.

Since 1980, when the APA (and the VA)recognized delayed onset PTSD, there has been a tremendous amount of information published. This list represents a fraction of what’s out there.

Concurrent with circumstances related to the current conflict, and increased understanding of the verification of inservice stressors, the VA continues to expand the various requirements for the VA to attempt to obtain verification, or at least credibility, of claimed stressors. Please refer to the section of the VA manual specific to PTSD development: M21-1, Part IV, Subpart ii, Chapter 1, Section D

PTSD resource directory http://www.ptsd.va.gov/index.asp

http://www.ptsd.va.gov/public/index.asp

http://www.ptsd.va.gov/professional/ptsd101/ptsd-101.asp (website for professionals [therapists,etc.]but has useful information for SO’s and veterans)

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Appendix N

VA Claims Transformation and Simplified and Standardized Notification Process

A few years ago VA initiated the Claims Transformation Program: As stated by VA “VA is vigorously pursuing its Transformation Plan, a series of people-focused process and technology-centered improvements designed to achieve our goal of processing all claims quickly and accurately. The plan is essential to better serving Veterans, improving claims processing time, and eliminating the backlog. Paperless claims processing is an important element of VA's claims transformation strategy. ... VA will provide improved access and service through its My-eBenefits portal and new Veterans Relationship Management tools to enhance its outreach and beneficiary satisfaction.”

Among the Claims Transformation initiatives are expansion of the Fully Developed Claim program, increased use of Disability Benefit Questionnaires(DBQ’s), and the Quick Pay initiative. VA has developed and released additional DBQ’s, and provided them online for use by non-VA physicians. We have provided some information regarding this recent change from the current VA Benefits Newsletter [the current edition and past editions are available at: http://www.vba.va.gov/VBA/ ] “By making these forms publicly available, VBA is giving Veterans the option of using a DBQ to get an evaluation for a disability with their local provider, at their own convenience, without having to schedule an appointment with VA.

VBA has established a website, http://benefits.va.gov/disabilityexams, which lists 71 DBQs by symptom and by form name. Veterans can search the list for the symptom that most accurately reflects the claimed disability, click on the link to open an Adobe Acrobat (.pdf) form, print it off, and take it to their private physician to use in assessing the condition. The Veteran or the doctor then submits the completed DBQ as medical evidence by mail or fax to the VBA Regional Office that handles the Veteran’s claim.

The website also has instructions for DBQ completion and “frequently asked questions” to help guide the Veteran and the doctor through the process. While Veterans are always entitled to a compensation examination at no charge when requested by VBA, the Veteran is responsible for any co-pay or costs associated with seeking a private evaluation. DBQs must be filled out completely by the private physician in order to properly rate the disability. If the DBQ information is incomplete, VA may have to schedule the Veteran for a VA compensation examination.

One benefit of DBQs is they can be completed in conjunction with a Veteran’s regular medical appointment with a private doctor. Many of the DBQs can be completed relatively quickly, in 15 to 60 minutes depending on the complexity of the forms and the conditions they cover. Each DBQ’s estimated completion time is listed on the form. Another key benefit is that use of DBQs helps accomplish VBA’s goal for fully developed claims (FDC) upon initial submission. VBA developed the FDC program, with its new simplified claim forms, to help Veterans identify and gather all the supporting documentation needed for VA successfully to and quickly process a claim. “When VBA’s raters have all the information needed with a claim submission. Veterans start receiving their compensation decisions more quickly and accurately. More information about the FDC program can be found at www.vba.va.gov/fastclaims.”

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For the DBQ’s go to: http://benefits.va.gov/TRANSFORMATION/disabilityexams/

Another part of the the SSRN program in 2012 was a simplified rating and notification procedure. There was extensive information, publicized by the VA, in the 2012 edition of this desk book. That procedure was abandoned, and the prior rating format remains in effect. Service officers who understand this transition will be better able to explain it to veterans who inquire as to the change in appearance in ratings they are getting over the last several years.

For additional information about Transformation:

http://benefits.va.gov/transformation/

http://benefits.va.gov/transformation/docs/About_Transformation.asp

http://benefits.va.gov/TRANSFORMATION/quickpay/index.asp

In December 2013 VBA sent out a press release attributing a reduction in the claims backlog, partially attributable to the Transformation initiative: http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2505

And recently: http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2778

Related to the Transformation program, also see the information on Fully Developed Claims in Chapter 4.4, page 65 above.

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APPENDIX O

Women Veterans

Over the past few decades, in part because of the increasing percentage of female veterans, and increased understanding of various issues specific to them, the VA has substantially stepped up its training and understanding of issues pertinent to women veterans.

Women are enrolling in the VA health care system at record levels. Operation Enduring Freedom and Operation Iraqi Freedom have added 100,000 women veterans to the rolls. Based on Department of Defense active duty rosters, the number of women veterans will continue to climb. After decades of serving mostly men, VA is adapting to the changing landscape to offer high-quality care to women veterans. Women constitute nearly 15 percent of today’s active duty troops and represent the fastest- growing subpopulation of the U.S. military. Correspondingly, women are enrolling in the VA health care system at record levels. Understandably, most VA health care facilities were built with men in mind. For decades, the system was accustomed to serving mostly men—as recently as 1998, women represented only 4.4 percent of all veterans. Now the landscape is changing and more women veterans, young and old, are turning to VA for health care.

A significant boost for the program was the 2008 requirement that every VA facility have a women veterans program manager dedicated full time to overseeing women’s health.

There are Women Veteran Coordinator (WVCs) located in every regional office who function as the primary contact for women Veterans. WVCs provide specific information and comprehensive assistance to women Veterans, their dependents, and beneficiaries concerning VA benefits and related non-VA benefits. They may assist you in the claims intake, development, and processing of military sexual and personal trauma claims.

At each VA medical center a Women Veterans Program Manager (WVPM) is designated to advise and advocate for women Veterans. The WVPM can help coordinate all the services you may need, from primary care to specialized care for chronic conditions or reproductive health. Woman Veterans who are interested in receiving care at VA should contact the nearest VA Medical Center and ask for the WVPM.

VA has special services available to help women who experienced military sexual trauma (MST), including free, confidential counseling and treatment for mental and physical health conditions related to MST. You do not need to have a service-connected disability or injury, and may be able to receive this benefit even if you are not eligible for other VA care. You do not need to have reported the incidents when they happened or have other documentation that they occurred in order to receive MST services.

Every VA facility has a designated MST Coordinator who serves as a contact person for MST-related issues. This person is your advocate and can help you find and access VA services and programs, state and federal benefits, and community resources.

The majority of VA programs and service providers currently available to homeless veterans focus on assisting male veterans. However, as a result of the increasing number of women serving in the Armed Forces, more than five percent of veterans requesting assistance from VA and community-based homeless veteran service providers are women. More than 10 percent of these women have dependent

234 children. In addition, a significant number of male homeless veterans have dependent children. See Appendix P, page 236 for additional information regarding assistance for homeless veterans.

Relevant provisions were included in a comprehensive veterans’ benefits package, the Veterans' Benefits Act of 2010, which was signed into law on October 3, 2010, as Public Law 111-275. The new law authorizes federal grants to provide job training, counseling, placement, and childcare services to homeless women veterans and homeless veterans with children. Please see Chapter 10, page 129 for Womens Health issues related to VHA. Some of the relevant websites, with links to other pertinent websites, are shown here: www.womenshealth.va.gov http://www.va.gov/womenvet/ http://www.publichealth.va.gov/exposures/agentorange/birth_defects.asp

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APPENDIX P

Homeless Veterans

The tragedy of homeless veterans has been a priority for VA, both in terms of health care and assistance. Currently VA has set a goal of eliminating homelessness within a few years. The current program emphasizes: Conducting coordinated outreach to proactively seek out Veterans in need of assistance.;Connecting homeless and at-risk Veterans with housing solutions, health care, community employment services and other required supports; Collaborating with federal, state and local agencies; employers; housing providers, faith-based and community nonprofits; and others to expand employment and affordable housing options for Veterans exiting homelessness.

BACKGROUND

In November 2009, VA Secretary Shinseki announced a goal to end homelessness among veterans by 2015. In 2011, VA and the Department of Housing and Urban Development jointly released a supplement to Housing and Urban Development’s Annual Homeless Assessment Report, which estimated 67,500 veterans were homeless on a single night in January 2011. VA requested $224.2 million to address this problem and establish the capacity to serve approximately 20,000 veterans in 2012. According to VA, the Grant and Per Diem (GPD) Program, administered by the Veterans Health Administration, provided services and transitional housing for over 100,000 veterans since 1994.

The national picture is improving. The 2015 Point-in-Time (PIT) Count—a “snapshot” of homelessness on a given night in America—shows that homelessness among Veterans is down by 36 percent since 2010 (learn more about the PIT Count here).

Service officers should recognize that a substantial number of homeless veterans have a distrust of the Government or the “system”. Helping these veterans understand that we are here to help them, and gaining their trust, can be challenging. There are designated programs for health care, financial assistance, and employment training. The VA has developed a number of programs specifically to assist homeless veterans. Some of these are:

VA’s Compensated Work Therapy (CWT) is comprised of three unique programs which assist homeless Veterans in returning to competitive employment: Sheltered Workshop, Transitional Work, and Supported Employment. Veterans in CWT are paid at least the federal or state minimum wage, whichever is the higher. The Homeless Veteran Supported Employment Program (HVSEP) provides vocational assistance, job development and placement, and ongoing supports to improve employment outcomes among homeless Veterans and Veterans at-risk of homelessness. Formerly homeless Veterans who have been trained as Vocational Rehabilitation Specialists (VRSs) provide these services.

The Department of Veterans Affairs launched Project REACH With HUD and Jon Bon Jovi Soul Foundation March 19, 2012 to help the people who help the homeless. That initiative challenged the developer community to create easy, mobile access to resources that the homeless need, when they need it and where they can get it.

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Service officers dealing with Veterans who are homeless or at imminent risk of becoming homeless can call or visit their local VA Medical Center or Community Resource and Referral Center where VA staff are ready to help. Service Officers, veterans and their families may also call 1-877-4AID-VET (1-877-424-3838) to access VA services.

It may also be helpful to go to: va.gov/homeless to learn about VA programs for Veterans who are homeless and share that information with others. http://www.va.gov/homeless/about_the_initiative.asp

Also please see the information regarding homeless women veterans in Appendix O.

http://www.va.gov/HOMELESS/index.asp VA has Homeless Veteran coordinators in each state: http://www.va.gov/HOMELESS/docs/HCHV_Sites_ByState.pdf VA has also established a National Call Center specifically for homeless veterans: http://www.va.gov/HOMELESS/NationalCenter.asp Some of the other relevant websites http://www.va.gov/HOMELESS/for_homeless_veterans.asp http://www.va.gov/homeless/resources.asp

“The good news is, we've helped to get thousands of homeless Veterans off the street, [and] made an unprecedented effort to end Veterans' homelessness. ... But we've got more work to do in cities and towns across America to get more Veterans into the homes they deserve.” President Barack Obama, August 2014.

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APPENDIX Q Informal Claims/Intent to File Reference: §38 CFR 3.155

Important: VA only recognizes informal claims received prior to March 24, 2015. After March 24, 2015, your client should either file a formal claim on the appropriate form, or, if there is insufficient information or documentation to file a formal claim, your client should submit an Intent To File (VA Form 21-0966)as noted below.

We have retained the previous information regarding informal claim procedures for historical reference, and because there are claims initiated under that procedure that are still pending.

Claims received prior to March 24, 2015, via VONAPP or VDC that are initiated but not completed are not informal claims. However, the date the application was initiated may be considered when determining the effective date in certain circumstances.

CAVC ruled that complaints noted by a Veteran during a VA examination (and included in the corresponding examination report) do not constitute an informal claim unless "the veteran sufficiently manifested an intent to apply for benefits for a particular disease or injury."

Informal claims were important prior to March 24, 2015, because VA could award entitlement to benefits as early as the date of receipt of an informal claim as long as the claimant submits a formal claim within one year of the date VA sent the claimant the application form.

In order for a communication or action received by VA prior to March 24, 2015, to be accepted as an informal claim, the historical version of 38 CFR 3.155 requires claimants to identify the benefit(s) they are seeking, such as compensation and/or pension.

If a claimant is attempting to reopen a previously denied claim or is seeking an increased disability rating, he/she must also describe the nature of the disability for which he/she is seeking benefits. A claimant may accomplish this by identifying the body part or system that is disabled or by describing symptoms of the disability.

See: M21-1MR, Part III, Subpart ii, Chapter 2, Section D

When the Omnibus Budget Reconciliation Act of 1982 (Public Law 97-253) was enacted the informal claim procedure now in use was begun. The informal claim procedure is designed to protect a date of claim. Thereby, protecting one month’s benefits, for those formal claims in the mail or courier system, which would not arrive in the VA Regional Office for a date stamp until after the first of the month.

38 CFR §3.155 (a) (b) is the governing regulation for informal claims. The date that the informal claim was filed will be considered the file date if the formal claim is then received by the Department of Veterans Affairs within 1 year. However, "a communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.”

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In order for a communication or action to be accepted as an informal claim it must identify the benefit(s) sought, per 38 CFR 3.155. Identifying the benefit sought means a claimant must describe the nature of the disability for which he or she is seeking benefits. It is sufficient for the claimant to include a reference to a body part or system that is disabled, or by describing symptoms of a disability.

For more information on accepting reports of hospitalization or medical treatment as informal claims for increased evaluation for disabilities already service connected, or to reopen claims for pension previously denied for lack of permanent and total disability, see 38 CFR 3.157(b), and informal claims and identifying the benefit sought, see Brokowski v. Shinseki, 23 Vet. App. 79 (2009).

VA Manual instructions do indicate that an otherwise complete claim filed on an obsolete form should be accepted as a formal claim. This is subject to change, and on occasion there is information required on a current form that is not requested on a previous edition of that form. This is part of the reason we strongly suggest that you go to the online form whenever possible; this ensures that you are using the latest edition of a form, and in most cases you can file the form electronically.

As Veteran Service Officers it is our job to insure we identify what are the issues and to clarify what benefit the claimant may be seeking. Submitting informal claims, which are not issue or benefit specific or multiple informal claims on the same claimant, will only confuse the VA and possibly the claimant. Additional research and discussion with the claimant may be necessary to perfect a claim, which will serve the claimants best interest.

Protecting a date of claim is important, but protecting the claimant’s best interest may be more important and will require thought and consideration. A claimant has one year from date of receipt of Informal Claim by VA to provide the appropriate formal application forms, otherwise the claim is considered dropped by the VA.

On or After March 24, 2015

A claimant may submit an Intent to File (ITF) any of the following ways:

• by submitting a completed VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC • by calling the National Call Center (NCC) at 1-800-827-1000 or the National Pension Call Center (NPCC) at 1-877-294-6380 and notifying a Public Contact Representative (PCR) of his or her ITF a claim for compensation, pension, or survivors benefits, and • by initiating an application for benefits via eBenefits/VDC or Stakeholder Enterprise Portal (SEP).

Important: VA will only recognize ITFs submitted on or after March 24, 2015. An ITF received before March 24, 2015, will be reviewed to determine whether it can be accepted as an informal claim. For more information regarding informal claims, see M21-1, Part III, Subpart ii, 2.C.1.c. ITFs submitted through eBenefits/VDC and the NCC or NPCC will be processed automatically. The data will be directly transferred to the corporate database where ITF information is stored. This will trigger the batch letter process described in M21- 1, Part III, Subpart ii, 2.C.1.g.

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Exception: If the claimant submits an ITF through the NCC or NPCC but does not have an existing corporate record, the ITF will be manually processed by the Intake Processing Center (IPC).

An ITF is complete if all the following requirements have been e. met: Characteristics of a Complete • the claimant has identified the general benefit sought (compensation and/or ITF pension, or Survivors Pension and/or Dependency and Indemnity Compensation (DIC)) • the claimant can be identified, and • the VA Form 21-0966 is signed by the claimant or authorized representative (Veterans Service Organization (VSO), VA public contact representative, attorney, or agent if a valid power of attorney (POA) has been completed).

Note: Assume the claimant is the Veteran if the Veteran identification section is not filled out.

Important: If the ITF is established based on the initiation of an application via eBenefits/VDC or SEP, no signature or VA Form 21-0966 is needed.

An ITF is important because VA may award entitlement to an effective date prior to the date of claim (DOC) as long as the claimant submits a complete claim within one year of the date VA received the ITF.

Important: • If a Veteran submits an ITF within one year of discharge and submits a substantially complete application within one year of the date VA received the ITF, the earliest potential effective date is the day after discharge. • If a Veteran submits an ITF for an original claim between March 24, 2015, and August 5, 2015, and submits a substantially complete application within one year of the date VA received the ITF, the earliest potential effective date is one year prior to the date of receipt of the ITF.

Example 1: A Veteran submits VA Form 21-0966 for compensation on June 1, 2015, and submits a paper VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, requesting an increased evaluation for her SC disabilities on January 1, 2016. The Veteran’s ITF date is June 1, 2015 DOC is January 1, 2016, and potential effective date is June 1, 2015 because the claimant submitted a complete claim within one year of the ITF. Example 2: A Veteran submits VA Form 21-0966 for compensation on June 1, 2015, begins an online application in eBenefits on November 1, 2015, and submits a non- original online application through eBenefits on January 1, 2016. The Veteran’s • ITF date is June 1, 2015 • November 1st online application is saved as a duplicate ITF

Because of the increasing reliance on specific forms, it is even more advisable now for a veteran admitted to a VA facility for treatment and/or hospitalization file a claim with the Patient Advocate, Hospital Ombudsman, or a Service Officer on post at the facility.

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APPENDIX R Changes in procedures relevant to Lesbian, Gay and Bi-Sexual (LGB) Servicemembers and Veterans

The Department of Veteran Affairs is dedicated to serving all eligible Servicemembers, Veterans and their families. It also recognizes the existing diversity within this population, including the Lesbian, Gay, and Bisexual (LGB) community. As a result, VA is committed to providing outreach to diverse Service and Veteran populations.

On June 26, 2013, the US Supreme Court held in the United States v. Windsor that section 3 of the Defense of Marriage Act "DOMA", which limited the terms "marriage" and "spouse" for purposes of Federal statutes, regulations, or rulings, to only include persons of the opposite sex, is unconstitutional. On September 4, 2013, the Attorney General informed Congress that the President has directed the Executive Branch to cease enforcement of similar provisions in sections 101(3) and 101(31) of Title 38 of the United States Code to the extent those provisions preclude recognition of legally valid marriages of same-sex couples.

In light of the President's direction, VA is no longer denying marital benefit claims because a "spouse" or a "surviving spouse" is not a person of the opposite sex. VA is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation's Veterans. However, even as VA works to implement the President's decision, VA recognizes that there may be certain situations in which current statutes and variations in state law may preclude VA from providing spousal benefits to same-sex married couples.

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Accordingly, VA may now recognize all same-sex marriages without regard to a Veteran’s state of residence. VA has developed guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation's Veterans. All Veterans in same-sex marriages who believe they are entitled to benefits should therefore promptly apply for benefits. Furthermore, Veterans whose claims were previously denied based on prior guidance should re-apply for benefits. http://theweek.com/article/index/256862/how-the-va-is-leading-the-way-on-lgbt-patient-care http://www.benefits.va.gov/PERSONA/lgb.asp

M21-1, Part III,iii.5.L.2.g

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APPENDIX S

The Integrated Disability Evaluation System (IDES)

The purpose of the Integrated Disability Evaluation System (IDES) is to save time and resources by combining multiple aspects of the disability evaluation process individuals go through when their service department calls into question their fitness for duty, and they file a claim for Department of Veterans Affairs (VA) benefits.

IDES participants undergo only one examination (or one set of examinations), the results of which meet the needs of both VA and the Department of Defense (DoD). If, based on the results of the examination(s), a physical evaluation board (PEB) decides a participant is unfit for duty, VA prepares a rating decision to determine the amount of VA benefits to which he/she is entitled. DoD uses this same decision to determine the amount of DoD benefits to which the participant is entitled.

Medical evaluation boards (MEBs) are DoD entities responsible for evaluating the disabilities of IDES participants for the purpose of documenting their medical status and duty limitations determining whether they meet medical retention standards, and referring them to a PEB.

PEBs are DoD entities responsible for evaluating an IDES participant’s fitness for duty for the purpose of determining whether the participant should remain in service, or

DoD should − medically retire the participant, or − separate the participant from service (with or without benefits).

DoD operates five PEBs: National Capital Region PEB in Alexandria, Virginia (Army) Joint Base San Antonio at Ft. Sam Houston, Texas (Army) Joint Base Lewis-McChord at Ft. Lewis, Washington (Army) Washington Naval Yard in Washington, D.C. (Navy and Marine Corps), and Joint Base San Antonio at Randolph Air Force Base, Texas (Air Force).

A Physical Evaluation Board Liaison Officer (PEBLO) is a DoD employee who is the non-clinical case manager assigned to individuals after a treating physician refers them to the IDES MEB’s primary point of contact in the IDES process liaison between DoD and VA’s Military Services Coordinators (MSCs) DoD representative that first meets with each IDES participant and assists him/her in − understanding the IDES process, and − scheduling required medical examinations (in coordination with an MSC) resource throughout the IDES process for IDES participants and their families with regard to information about the IDES, and focal point for consolidation of all pertinent medical information.

MSCs are VA representatives that work at IDES intake sites. They:

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are typically an employee of the regional office (RO) with geographical jurisdiction over the intake site serve as a resource for IDES participants and their families with regard to information about VA benefits serve as the MEBs’ primary point of contact with VA accept referrals of individuals into the IDES from PEBLOs hold a meeting with each IDES participant when the participant first enters the program to assist him/her in − filing a claim for VA benefits, and − understanding the claims process undertake development to obtain evidence relevant to participants’ claims, to include requesting necessary VA examinations provide examination reports to PEBLOs once they become available notify disability rating activity sites (DRASs) when examination reports are available, and conduct an exit interview with each IDES participant

Each RO must have an IDES point of contact. This employee’s responsibilities include: serving as a subject-matter expert on the IDES, and overseeing the handling of IDES-related activities in the RO

DRASs serve as the PEBs’ primary point of contact with VA. When a PEB informally decides that an IDES participant is unfit for duty, it sends a request to the DRAS of jurisdiction for a preliminary rating decision. If the participant is ultimately discharged because he/she is unfit for duty, the DRAS prepares and promulgates a final rating decision, and sends a decision notice to the participant.

VA has two DRASs. The table below shows in which RO they are located, their contact information, and the IDES cases over which each DRAS has jurisdiction.

Seattle RO Providence RO Mailing Address SeaTac Processing Center Providence VA Regional Office 17930 Pacific Highway South 380 Westminster Street SeaTac, WA 98188 Attn: IDES Providence, RI 02903 E-Mail Address VAVBASEA/RO/DES, or VAVBAPRO/RO/DES, or [email protected] [email protected] Fax Number (206) 965-3995 (401) 223-3680 Jurisdiction IDES cases from all Army PEBs IDES cases from the Air Force and Navy PEBs

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APPENDIX T

LIBERALIZING LEGISLATION AND EFFECTIVE DATES

For multiple reasons the effective date for payment of VA benefits is often a very complicated issue. Understanding the factors that go into effective date determinations can be a challenge for representatives to not only understand, but to then explain to a claimant. One of the specific areas that causes confusion is the effect of liberalizing legislation on VA benefits.

The general instruction is that if there is a change in law or VA regulation that allows for VA to pay disability compensation, the effective date may be assigned in the following ways:

If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA regulation, or the request of a claimant is received within 1 year from the date of the new law or regulation, the effective date may be the date of the change in law or regulation.

If more than one year has elapsed since the change in law or regulation, an effective date of one year prior to either VA's own review or one year prior to the claimant's request for review may be assigned as the effective date.

The relevant regulation (repeated in full at the end of this Appendix)states that: Where pension, compensation, dependency and indemnity compensation, or a monetary allowance … is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.

Now it gets more complicated from there, so let’s just cover the most common scenarios.

A)Veteran is 30% disabled, and has a spouse and two children, all prior to October 1, 1978. On October 1, 1978 the regulation is changed to allow veterans 30-49% disabled additional allowance for dependents. As of October 1, 1978 the veteran is entitled to additional allowance for three dependents, if the following conditions are met:

1)the veteran was 30% on or before October 1, 1978.2)the veteran requests additional allowance for his dependents priot to October 1, 1979. Or: 2)the VA knew or should have known that the veteran had three dependents (e.g. if they were in his file in connection with his education claim).

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B)Veteran is 30% disabled, has a spouse and two children, all prior to October 1, 1978. There is no evidence in his VA file of these dependents. On June 8, 1982 he hears that the threshold for dependency allowance as been lowered, and he contacts the VA to claim his dependents. He is entitled to additional dependency allowance for his dependents as of June 8, 1981. The determining factor here is that, as of the date of the liberalizing legislation, the veteran met, and continued to meet, all the requirements for entitlement to the additional benefit except for the change in the regulation. Under those circumstances, VA can go back one year. The critical point here is that all requirements for entitlement must be met except for the change as of the date of the change. For example, if the veteran’s evaluation was increased from 10% to 30% on December 1, 1978, and he doesn’t file a claim for additional dependency allowance, and VA was unaware of his dependents, until June 8, 1982, VA can only pay that additional dependency allowance as of June 8, 1982.

One specfic area that causes considerable confusion is the effective date of benefits for service connection for conditions related to herbicide (Agent Orange)exposure.

The historical version of 38 CFR 3.311a, which became effective on September 25, 1985, was the first VA regulation to provide guidance for the adjudication of claims based on exposure to dioxin. In February 1986, a class action suit entitled Nehmer v. United States Veterans Administration, No. C86- 6160 THE (N.D. Cal.), was filed in the U.S. District Court for the Northern District of California. On May 3, 1989, the District Court invalidated a portion of the historical 38 CFR 3.311a. All denials after September 24, 1985, that were based on 38 CFR 3.311a were voided, and a moratorium was placed on further denials. The moratorium was lifted on February 15, 1994. On September 24, 2003, a new regulation, 38 CFR 3.816[also reproduced below], was added to provide guidance in the adjudication of claims under the Nehmer litigation

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§ 3.114 Change of law or Department of Veterans Affairs issue.

(a)Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))

§3.816 Awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.

(a) Purpose. This section states effective-date rules required by orders of a United States district court in the class-action case of Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.).

(b) Definitions. For purposes of this section—

(1) Nehmer class member means:

(i) A Vietnam veteran who has a covered herbicide disease; or

(ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.

(2) Covered herbicide disease means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in §3.309(e).

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(c) Effective date of disability compensation. If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows:

(1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.

(2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if:

(i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or

(ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.

(3) If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service.

(4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§3.114 and 3.400.

(d) Effective date of dependency and indemnity compensation (DIC). If a Nehmer class member is entitled to DIC for a death due to a covered herbicide disease, the effective date of the award will be as follows:

(1) If VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which such prior denial was based or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section.

(2) If the class member's claim for DIC for the death was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease that caused the death, the effective date of the award will be the later of the date such claim was received by VA or the date the death

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occurred, except as otherwise provided in paragraph (d)(3) of this section. In accordance with §3.152(b)(1), a claim by a surviving spouse or child for death pension will be considered a claim for DIC. In all other cases, a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC.

(3) If the class member's claim referred to in paragraph (d)(1) or (d)(2) of this section was received within one year from the date of the veteran's death, the effective date of the award shall be the first day of the month in which the death occurred.

(4) If the requirements of paragraph (d)(1) or (d)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§3.114 and 3.400.

(e) Effect of other provisions affecting retroactive entitlement—(1) General. If the requirements specified in paragraphs (c)(1) or (c)(2) or (d)(1) or (d)(2) of this section are satisfied, the effective date shall be assigned as specified in those paragraphs, without regard to the provisions in 38 U.S.C. 5110(g) or §3.114 prohibiting payment for periods prior to the effective date of the statute or regulation establishing a presumption of service connection for a covered herbicide disease. However, the provisions of this section will not apply if payment to a Nehmer class member based on a claim described in paragraph (c) or (d) of this section is otherwise prohibited by statute or regulation, as, for example, where a class member did not qualify as a surviving spouse at the time of the prior claim or denial.

(2) Claims Based on Service in the Republic of Vietnam Prior to August 5, 1964. If a claim referred to in paragraph (c) or (d) of this section was denied by VA prior to January 1, 1997, and the veteran's service in the Republic of Vietnam ended before August 5, 1964, the effective-date rules of this regulation do not apply. The effective date of benefits in such cases shall be determined in accordance with 38 U.S.C. 5110. If a claim referred to in paragraph (c) or (d) of this section was pending before VA on January 1, 1997, or was received by VA after that date, and the veteran's service in the Republic of Vietnam ended before August 5, 1964, the effective date shall be the later of the date provided by paragraph (c) or (d) of this section or January 1, 1997.

(Authority: Public Law 104-275, sec. 505)

(f) Payment of Benefits to Survivors or Estates of Deceased Beneficiaries—(1) General. If a Nehmer class member entitled to retroactive benefits pursuant to paragraphs (c)(1) through (c)(3) or (d)(1) through (d)(3) of this section dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity listed below that is in existence at the time of payment:

(i) The class member's spouse, regardless of current marital status.

NOTE TO PARAGRAPH (f)(1)(i): For purposes of this paragraph, a spouse is the person who was legally married to the class member at the time of the class member's death.

(ii) The class member's child(ren), regardless of age or marital status (if more than one child exists, payment will be made in equal shares, accompanied by an explanation of the division).

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NOTE TO PARAGRAPH (f)(1)(ii): For purposes of this paragraph, the term “child” includes natural and adopted children, and also includes any stepchildren who were members of the class member's household at the time of the class member's death.

(iii) The class member's parent(s), regardless of dependency (if both parents are alive, payment will be made in equal shares, accompanied by an explanation of the division).

NOTE TO PARAGRAPH (f)(1)(iii): For purposes of this paragraph, the term “parent” includes natural and adoptive parents, but in the event of successive parents, the persons who last stood as parents in relation to the class member will be considered the parents.

(iv) The class member's estate.

(2) Inapplicability of certain accrued benefit requirements. The provisions of 38 U.S.C. 5121(c) and §3.1000(c) requiring survivors to file claims for accrued benefits do not apply to payments under this section. When a Nehmer class member dies prior to receiving retroactive payments under this section, VA will pay the amount to an identified payee in accordance with paragraph (f)(1) of this section without requiring an application from the payee. Prior to releasing such payment, however, VA may ask the payee to provide further information as specified in paragraph (f)(3) of this section.

(3) Identifying payees. VA shall make reasonable efforts to identify the appropriate payee(s) under paragraph (f)(1) of this section based on information in the veteran's claims file. If further information is needed to determine whether any appropriate payee exists or whether there are any persons having equal or higher precedence than a known prospective payee, VA will request such information from a survivor or authorized representative if the claims file provides sufficient contact information. Before releasing payment to an identified payee, VA will ask the payee to state whether there are any other survivors of the class member who may have equal or greater entitlement to payment under this section, unless the circumstances clearly indicate that such a request is unnecessary. If, following such efforts, VA releases the full amount of unpaid benefits to a payee, VA may not thereafter pay any portion of such benefits to any other individual, unless VA is able to recover the payment previously released.

(4) Bar to accrued benefit claims. Payment of benefits pursuant to paragraph (f)(1) of this section shall bar a later claim by any individual for payment of all or any part of such benefits as accrued benefits under 38 U.S.C. 5121 and §3.1000.

(g) Awards covered by this section. This section applies only to awards of disability compensation or DIC for disability or death caused by a disease listed in paragraph (b)(2) of this section.

(Authority: 38 U.S.C. 501)

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APPENDIX U

Recognition of Common Law Marriages byState.

Use the table below to check the validity of common law marriages by State.

State Status of Common Law State Status of Common Law Alabama recognized Montana recognized Alaska 08/01/1917 Nebraska 08/03/1923 Arizona 10/01/1913 Nevada 03/29/1943 Arkansas not recognized New Hampshire not recognized California 1895 New Jersey 12/01/1939 Colorado recognized New Mexico not recognized Connecticut not recognized New York 04/29/1933 Delaware not recognized North Carolina not recognized District of recognized North Dakota 07/01/1890 Columbia Florida 01/01/1968 Ohio 10/10/1991 Georgia 01/01/1997 Oklahoma recognized Hawaii not recognized Oregon not recognized Idaho 01/01/1996 Pennsylvania 01/01/2005 Illinois 07/01/1905 Puerto Rico not recognized Indiana 01/01/1958 Rhode Island recognized Iowa recognized South Carolina recognized Kansas recognized South Dakota 07/01/1959 Kentucky not recognized Tennessee not recognized Louisiana not recognized Texas recognized Maine not recognized Utah 03/03/1987 under very limited circumstances per Utah Code Section 30-1-4.5. Maryland not recognized Vermont not recognized Massachusetts not recognized Virginia not recognized Michigan 12/31/1956 Washington not recognized Minnesota 04/26/1941 West Virginia not recognized Mississippi 04/05/1956 Wisconsin 01/01/1918 Missouri 06/20/1921 Wyoming not recognized

Legend: Date = Marriage recognized only if established before that date.

Example: A common law marriage in Florida is recognized only if it was established before January 1, 1968.

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APPENDIX V UNDIAGNOSED ILLNESS References: http://www.va.gov/opa/publications/2011_GWVI-TF_Report.pdf http://www.publichealth.va.gov/exposures/gulfwar/reports/gwvi-taskforce.asp#sthash.PEWcHSFl.dpuf http://www.benefits.va.gov/persona/veteran-gulfwar.asp and the links contained therein.

Persian Gulf War Benefits Act, PL 103-446 (Nov. 2, 1994) Gulf War Benefits Act of 1998, PL 105-277 Veterans Education and Benefits Expansion Act of 2001, PL 107-103 38 CFR §3.317

Additional information may be found at: http://www.publichealth.va.gov/exposures/gulfwar/

After Operations Desert Shield and Desert Storm veterans were complaining of disabling symptoms but did not have a diagnosable illness. In order to provide some help to these veterans while VA, and the medical community generally, was trying to determine what had happened, Congress passed Public Law (PL) 107-103 to provide compensation and healthcare benefits for affected veterans.

The law has been amended and refined to include current active duty members in Southwest Asia. It applies to all claims from qualified veterans. Qualifying veterans must have served in the specified area between August 2, 1990 and a date yet to be determined by law or Presidential proclamation (as noted in Chapter 2, the current was has been going on for just under 26 years at the time of publication of this manual.) A qualifying veteran under 38 §CFR 3.317 is a Veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Gulf War period. Currently, there is no minimum amount of time requirement for specified areas. 38 CFR §3.317 (e) (2) defines the Southwest Asia theatre of operations which includes but is not limited to: Iraq, Kuwait, Saudi Arabia, and the waters around and the air above those specified in the regulation.

Note that 38 CFR 3.317(c) and (d) establish service connection for certain infectious diseases native to the Gulf region and Afghanistan is included for this purpose, but not for undiagnosed illness.

The law specifies 13 categories of signs or symptoms that MAY be manifestations of undiagnosed illness or MUCMI(Medically Unexplained Chronic Multi-symptom Illnesses). This list is not exclusive; signs or symptoms of other diseases or illnesses may also qualify for consideration under 38 CFR 3.317:

The provisions of 38 CFR 3.317 require that 4 specific provisions be met before service connection can be granted for undiagnosed illness. Presumptive: The condition must have arose during the presumptive period in accordance with 38 CFR §3.317; Chronic: The claimed illness must be chronic; Compensable: The claimed illness must be found to be at least 10% disabling;

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Undiagnosed: The disability resulting from signs/symptoms must not be otherwise diagnosed as a recognized disease or disability (except for the specific disabilities listed below) Once the claimed disability has a diagnosis attached to it, the special provisions of 38 CFR 3.317 no longer apply and service connection can only be granted under direct, presumptive or aggravated provisions of the laws that apply to traditional claims for service connection.

As listed in 38 CFR 3.317 (c) (2)

Brucellosis, Campylobacter jejuni, Coxiella burnetti (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis, West Nile Virus.

Will be SC if manifest within a qualifying period of service.

Malaria-10% within 1 year of separation (incubation period)

There is no time limit for visceral leishmaniasis or tuberculosis to achieve the 10% threshold

To establish SC for a disability under 38 CFR §3.317, the claimed disability must be chronic, that is, it must have persisted for a period of six months. The regulation also defines a qualifying chronic disability as one resulting from any of the following or any combination of the following:”

a)An undiagnosed illness is defined as: -a type of chronic qualifying disability where signs and/or symptoms cannot be attributed to any known diagnosis by history, examination or lab tests. or- b)MUCMI (Medically Unexplained Chronic Multi-symptom Illnesses) • Is a type of chronic qualifying disability in which there is a diagnosed illness that has both: • Inconclusive pathophysiology and etiology • Overlapping signs and symptoms AND features such as • Fatigue and pain • Disability out of proportion to physical findings AND • Inconsistent demonstration of laboratory abnormalities • Include but are not limited to: • Chronic Fatigue Syndrome (CFS) • Fibromyalgia, OR • Functional gastrointestinal disorders (FGIDs), excluding structural gastrointestinal diseases FGIDs (Functional Gastrointestinal Disorders) • A group of diagnosed conditions that are a type of MUCMI, characterized by chronic or recurrent symptoms that are: • Unexplained by any structural, endoscopic, laboratory or other objective signs of injury or disease AND • May be related to any part of the gastrointestinal tract. • Some symptoms of FGID include

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• Abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits, indigestion, bloating, postprandial fullness and painful or difficult swallowing. • FGID diagnoses include but are not limited to: • Dyspepsia, vomiting, constipation, bloating, abdominal pain syndrome or dysphagia

When assisting with these claims referral to the full text of 38 C.F.R. §3.317 can be helpful.

Note that VA offers eligible Veterans a free Gulf War Registry health exam to find possible long-term health problems related to Gulf War service.

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Appendix W Traumatic brain injuries

Injuries and disabilities resulting from Traumatic Brain Injury (TBI)have become, sadly, very common resulting from the length and nature of the Gulf War. Very often these injuries result from exposure to explosions of IEDs (Improvised Explosive Devices).

For recent news: http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2779

In 2006, 2007, and 2009 VA issued training letters for evaluation of traumatic brain injury, the short and long-term residuals of such injury, and conditions secondary to such injury. The VA Manual, M21-1 III iv 4 G 2 a et.seq was amended in August 2015 to set out the instructions to raters for service connection and evaluation of traumatic brain injury and secondary conditions. 38 CFR 3.310(d) was amended on December 17, 2013, to establish an association between Traumatic Brain Injury and certain illnesses.

In absence of clear evidence to the contrary, the following five diagnosable illnesses are held to be a secondary result of TBI:

• Parkinsonism, including Parkinson’s disease, following moderate or severe TBI • unprovoked seizures, following moderate or severe TBI • dementias (presenile dementia of the Alzheimer’s type, frontotemporal dementia, and dementia with Lewy bodies), if the condition manifests within 15 years following moderate or severe TBI • depression, if the condition manifests within three years of moderate or severe TBI or within 12 months of mild TBI, or • diseases of hormone deficiency that result from hypothalamo-pituitary changes, if the condition manifests within 12 months of moderate or severe TBI

Entitlement to secondary SC for these TBI-related conditions in 38 CFR 3.310(d) depends upon the initial severity of the TBI and the period of time between the injury and onset of the secondary illness.

(2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1)[of 38 C.F.R. §3.310] with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to to paragraph (d)(1).

The rating instructions in the VA manual (cited above)are quite extensive. Also, as noted above, the instructions have been amended frequently to account for advances in

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understanding these conditions and ongoing experience. One example from the instructions is reproduced here:

Use the table below to determine secondary SC for conditions listed in 38 CFR 3.310(d).

And the initial severity If there is a diagnosis of… Then… of the TBI was … Parkinsonism, including moderate or severe award SC. Parkinson’s disease unprovoked seizures, moderate or severe award SC. dementia of the following moderate or severe types

• presenile dementia of award SC if dementia the Alzheimer type manifested within 15 years • frontotemporal after the TBI. dementia, and • dementia with Lewy bodies depression moderate or severe award SC if depression manifested within three years after the TBI. mild award SC if depression manifested within one year after the TBI. a disease of hormone moderate or severe award SC if the condition deficiency that results from manifested within one year hypothalamo-pituitary changes after the TBI (any condition in the endocrine system section of the rating schedule, 38 CFR 4.119, DCs 7900-7912, or any condition evaluated analogous to one of those conditions),

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APPENDIX X

RATE CHART INDEX

At the time of preparation of this manual, the most recent change in compensation and pension rates was effective December 1, 2014. For current and historical rates see: http://www.benefits.va.gov/COMPENSATION/resources_comp01.asp

As a convenience we have included current rate charts

Disability Compensation……………………………………………………………....page 257

Special Monthly Compensation…………………………………………………………….260

Special Monthly Compensation explanation……………………………………………….263

Dependency and Indemnity Compensation…………………….…..………..……..…..…..265

Parents DIC…………………………………………………………………………………..269

Auto Allowance, Clothing Allowance, Medal of Honor………………………….………...282

Spina Bifida Benefits………………………………………………………..…….…………283 Children of Women Vietnam Veterans with certain birth defects

Improved Disability Pension………………………………………………………………..284

Improved Death Pension……………………………………………….…..……….………286

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Disability Compensation

There will be no COLA for 2016 so the rates are the same as last year. Rates (No Dependents): 10% - 20% Basic Rates - 10%-100% Combined Degree Only Effective 12/1/14

Without Children With Children

30% - 60% 30% - 60%

70% - 100% 70% - 100%

10% - 20% (No Dependents)

Percentage Rate

10% $133.17

20% $263.23

30% - 60% Without Children

Dependent Status 30% 40% 50% 60%

Veteran Alone $407.75 $587.36 $836.13 $1,059.09

Veteran with Spouse Only $455.75 $651.36 $917.13 $1,156.09

Veteran with Spouse & One Parent $494.75 $703.36 $982.13 $1,234.09

Veteran with Spouse and Two Parents $533.74 $755.36 $1,047.13 $1,312.09

Veteran with One Parent $446.75 $639.36 $901.13 $1,137.09

Veteran with Two Parents $485.75 $691.36 $966.13 $1,215.09

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Dependent Status 30% 40% 50% 60%

Additional for A/A spouse (see footnote b) $44.00 $59.00* $74.00 $89.00

70% - 100% Without Children

Dependent Status 70% 80% 90% 100%

Veteran Alone $1,334.71 $1,551.48 $1,743.48 $2,906.83

Veteran with Spouse Only $1,447.71 $1,680.48 $1,888.48 $3,068.90

Veteran with Spouse and One Parent $1,538.71 $1,784.48 $2,005.48 $3,198.96

Veteran with Spouse and Two Parents $1,629.71 $1,888.48 $2,122.48 $3,329.02

Veteran with One Parent $1,425.71 $1,655.48 $1,860.48 $3,036.89

Veteran with Two Parents $1,516.71 $1,759.48 $1,977.48 $3,166.95

Additional for A/A spouse (see footnote b) $104.00 $118.00 $133.00 $148.64

30% - 60% With Children

Dependent Status 30% 40% 50% 60%

Veteran with Spouse and Child $491.75 $699.36 $976.13 $1,227.09

Veteran with Child Only $439.75 $630.36 $890.13 $1,124.09

Veteran with Spouse, One Parent and Child $530.75 $751.36 $1,041.13 $1,305.09

Veteran with Spouse, Two Parents and Child $569.75 $803.36 $1,106.13 $1,383.09

Veteran with One Parent and Child $478.75 $682.36 $955.13 $,1202.09

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Dependent Status 30% 40% 50% 60%

Veteran with Two Parents and Child $517.75 $734.36 $1,020.13 $1,280.09

Add for Each Additional Child Under Age 18 $24.00 $32.00 $40.00 $48.00

Each Additional Schoolchild Over Age 18 (see footnote a) $78.00 $104.00 $130.00 $156.00

Additional for A/A spouse (see footnote b) $44.00 $59.00 $74.00 $89.00

70% - 100% With Children

Dependent Status 70% 80% 90% 100%

Veteran with Spouse and Child $1,530.71 $1,775.48 $1,995.48 $3,187.60

Veteran with Child Only $1409.71 $1,637.48 $1,840.48 $3,015.22

Veteran with Spouse, One Parent and Child $1,621.71 $1,879.48 $2,112.48 $3,317.66

Veteran with Spouse, Two Parents and Child $1,712.71 $1,983.48 $2,229.48 $3,447.72

Veteran with One Parent and Child $1,500.71 $1,741.48 $1,957.48 $3145.28

Veteran with Two Parents and Child $1,591.71 $1,845.48 $2,074.48 $3,275.34

Add for Each Additional Child Under Age 18 $56.00 $64.00 $72.00 $80.52

Each Additional Schoolchild Over Age 18 (see footnote a) $182.00 $208.00 $234.00 $260.13

Additional for A/A spouse (see footnote b) $104.00 $118.00 $133.00 $148.64

FOOTNOTES:

a. Rates for each school child are shown separately. They are not included with any other compensation rates. All other entries on this chart reflecting a rate for children show the rate payable for children under 18 or helpless. To find the amount payable to a 70% disabled Veteran with a spouse and four children, one of

259

whom is over 18 and attending school, take the 70% rate for a veteran with a spouse and 3 children, $ 1,642.71, and add the rate for one school child, $182.00. The total amount payable is $1,824.71. b. Where the veteran has a spouse who is determined to require A/A, add the figure shown as "additional for A/A spouse" to the amount shown for the proper dependency code. For example, veteran has A/A spouse and 2 minor children and is 70% disabled. Add $104.00, additional for A/A spouse, to the rate for a 70% veteran with dependency code 12, $1,586.71. The total amount payable is $1,690.71.

Historical Rate Tables 2013 |2012 |2011 |2010-2009 |2008 |2007 |2006 |2005 |2004 |2003 |2002 |2001 |2000 |1999 return to top

Special Monthly Compensation (SMC) Rate Table - Effective 12/1/14

There will be no COLA for 2016 so the rates are the same as last year.

SMC Rate Payment variation

K $103.23 Usually added to other rate or paid as the rate when percentage is zero.

Q $67 Paid in place of a rate.

Without Children With Children

SMC-L through SMC-N SMC-L through SMC-N

SMC-N 1/2 through SMC-S SMC-N 1/2 through SMC-S

Without Children, SMC-L through SMC-N

Dependent Status L L 1/2 M M 1/2 N

Veteran Alone $3,617.02 $3,804.00 $3,991.74 $4,266.00 $4,540.89

Veteran with Spouse $3,779.09 $3,966.07 $4,153.81 $4,428.07 $4,702.96

Veteran with Spouse and One Parent $3,909.15 $4,096.13 $4,283.87 $4,558.13 $4,833.02

260

Dependent Status L L 1/2 M M 1/2 N

Veteran with Spouse and Two Parents $4,039.21 $4,226.19 $4,413.93 $4,688.19 $4,963.08

Veteran with One Parent $3,747.08 $3,934.06 $4,121.80 $4,396.06 $4,670.95

Veteran with Two Parents $3,877.14 $4,064.12 $4,251.86 $4,526.12 $4,801.01

Additional A/A spouse. See footnote (b) $148.64 $148.64 $148.64 $148.64 $148.64

Without Children, SMC-N 1/2 through SMC-S

Dependent Status N 1/2 O/P R.1 R.2/T S

Veteran Alone $4,808.00 $5,075.60 $7,252.63 $8,318.95 $3,253.67

Veteran with Spouse $4,970.07 $5,237.67 $7,414.70 $8,481.02 $3,415.74

Veteran with Spouse and One Parent $5,100.13 $5,367.73 $7,544.76 $8,611.08 $3,545.80

Veteran with Spouse and Two Parents $5,230.19 $5,497.79 $7,674.82 $8,741.14 $3,675.86

Veteran with One Parent $4,938.06 $5,205.66 $7,382.69 $8,449.01 $3,383.73

Veteran with Two Parents $5,068.12 $5,335.72 $7,512.75 $8,579.07 $3,513.79

Additional A/A spouse. See footnote (b) $148.64 $148.64 $148.64 $148.64 $148.64

With Children, SMC-L through SMC-N

Dependent Status L L 1/2 M M 1/2 N

Veteran with Spouse and One Child $3,897.79 $4,084.77 $4,272.51 $4,546.77 $4,821.66

Veteran with One Child $3,725.41 $3,912.39 $4,100.13 $4,374.39 $4,649.28

Veteran with Spouse, One Parent and One Child $4,027.85 $4,214.83 $4,402.57 $4,676.83 $4,951.72

261

Dependent Status L L 1/2 M M 1/2 N

Veteran with Spouse, Two Parents and One Child $4,157.91 $4,344.89 $4,532.63 $4,806.89 $5,081.78

Veteran with One Parent and One Child $3,855.47 $4,042.45 $4,230.19 $4,504.45 $4,779.34

Veteran with Two Parents and One Child $3,985.53 $4,172.51 $4,360.25 $4,634.51 $4,909.40

Add for Each Additional Child Under Age 18. See footnote $80.52 $80.52 $80.52 $80.52 $80.52

Each Additional Schoolchild Over Age 18. See footnote (a) $260.13 $260.13 $260.13 $260.13 $260.13

Additional A/A spouse. See footnote (b) $148.64 $148.64 $148.64 $148.64 $148.64

With Children, SMC-N 1/2 through SMC-S

Dependent Status N 1/2 O/P R.1 R.2/T S

Veteran with Spouse and One Child $5,088.77 $5,356.37 $7,533.40 $8,599.72 $3,534.44

Veteran with One Child $4,916.39 $5,183.99 $7,361.02 $8,427.34 $3,362.06

Veteran with Spouse, One Parent and One Child $5,218.83 $5,486.43 $7,663.46 $8,729.78 $3664.50

Veteran with Spouse, Two Parents and One Child $5,348.89 $5,616.49 $7,793.52 $8,859.84 $3,794.56

Veteran with One Parent and One Child $5,046.45 $5,314.05 $7,491.08 $8,557.40 $3,492.12

Veteran with Two Parents and One Child $5,348.89 $5,616.49 $7,793.52 $8,859.84 $3,794.56

Add for Each Additional Child Under Age 18. See footnote $80.52 $80.52 $80.52 $80.52 $80.52

Each Additional Schoolchild Over Age 18. See footnote (a) $260.13 $260.13 $260.13 $260.13 $260.13

262

Dependent Status N 1/2 O/P R.1 R.2/T S

Additional A/A spouse. See footnote (b) $148.64 $148.64 $148.64 $148.64 $148.64

Footnotes

Rates for each school child are shown separately. They are not included with any other compensation rates. All other entries on this chart reflecting a rate for children show the rate payable for children under 18 or helpless. To find the amount payable to a 70% disabled veteran with a spouse and four children, one of whom is over 18 and attending school, take the 70% rate for a veteran with a spouse and 3 children, $ 1,642.71, and add the rate for one school child, $182.00. The total amount payable is $1,824.71.

Where the veteran has a spouse who is determined to require A/A, add the figure shown as "additional for A/A spouse" to the amount shown for the proper dependency code. For example, veteran has A/A spouse and 2 minor children and is 70% disabled. Add $104.00, additional for A/A spouse, to the rate for a 70% veteran with dependency code 12, $1,586.71. The total amount payable is $1,690.71.

a. Historical Rate Tables

2011 |2010-2009 |2008 |2007 |2006 |2005 |2004 |2003 |2002 |2001 |2000 |1999

The following is an explanation of the SMC (Special Monthly Compensation) designations. The letter designations (K, L, M, etc.) are subsections of 38 USC 314.

“K” – Payable for the service-connected anatomical loss or loss of use of one or more creative organs, or one foot; or one hand, or both buttocks, or blindness of one eye (having only light perception), or complete organic aphonia with constant inability to communicate by speech, or deafness of both ears (having absence of air or bone conduction), or, for female veterans only, loss of tissue from one or both breasts.

“L” - Payable for the service-connected anatomical loss or loss of use of both feet, or one hand and one foot, or blindness in both eyes (with 5/200 visual acuity or less). Also payable if the veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance.

“M” - Payable for service-connected anatomical loss or loss of use of both hands, or both legs at a level, or with complications, preventing natural knee action with prostheses in place, or of one arm and one leg at levels or with complications preventing natural elbow and knee action with prostheses in place, or blindness in both eyes rendering the veteran so helpless as to be in need of aid and attendance.

“N” - Payable for service-connected anatomical loss or loss of use of both arms at levels, or with complications, preventing natural elbow action with prostheses in place or anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances, or the anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances. Also payable for the anatomical loss of both eyes or for blindness without light perception in both eyes.

263

“O” - Payable if: (1) the veteran has service-connected disabilities entitling the veteran to two or more of the “L”, “M”, or “N”, rates, as long as no single condition is considered twice, or (2) the veteran has bilateral deafness (and the hearing impairment in at least one ear is service- connected) rated at least 60 percent disabling and the veteran also has service-connected total blindness with 5/200 visual acuity or less, or (3) the veteran has service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one or both ears is service- connected) and the veteran also has service-connected blindness having only light perception or less, or (4) the veteran has suffered the service-connected anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances. (5) The veteran has paralysis of both lower extremities together with loss of anal and bladder sphincter control.

“Q” - This is the rate for arrested tuberculosis. Subparagraph q of 38 USC 314 was repealed effective August 19, 1968. However a veteran who was receiving or entitled to receive compensation for tuberculosis On August 19, 1968, has continuing entitlement and is protected for this rate. Also referred to as “StatQ” rate.

“R” - There are two “R” rates which are referred to as “R.1” and “R.2”. The “R.1” rate is payable in addition to other compensation if the veteran is receiving the maximum rate of compensation (the “O” rate) and is in need of regular aid and attendance. The “R.2” rate is payable in lieu of the “R.1” rate if the veteran is entitled to higher level aid and attendance. The veteran is entitled to higher level aid and attendance (the “R.2” rate if the rating board finds that in the absence of regular aid and attendance the veteran would require hospitalization, nursing home care, or other residential institutional care. The additional “R.1” or “R.2” rate is not payable if the veteran is hospitalized at United States Government expense.

“S” - Payable if the veteran has a service-connected disability rated as total and (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of service-connected disabilities. The requirement of “permanently housebound” is met when the veteran is confined to the veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to service-connected disabilities and it is reasonably certain that the disabilities will remain throughout the veteran’s lifetime.

Intermediate Rates – The SMC rate charts show intermediate rates (e.g., “L1/2”, “N1/2”, etc.). These intermediate rates are derived from 38 USC 314 (p), which permits the rating board to allow the next higher rate or an intermediate rate if the veteran’s service-connected disabilities exceed the requirements for any of the prescribed rates. However, in no case can payments exceed the “O” rate (unless the veteran is entitled to additional benefits under the “R” SMC). Refer to 38 CFR 3.350(f).

Note: Care should be exercised if there is a question as to the correct SMC payable in years past. There is a history of the evolution of SMC in M21-1MR, Part IV, Subpart ii, Chapter 2, Section I.

264

Dependency and Indemnity Compensation - Effective 12/1/14

There will be no COLA for 2016 so the rates are the same as last year.

Go to our How to Read DIC Rate Tables to find out how to use these rate tables.

Veteran's Death Was

On or After January 1, 1993 Before January 1, 1993

• Surviving Spouse, Enlisted Pay Grade • Surviving Spouse, Warrant Officer Pay Grade • Basic Monthly Rate • Surviving Spouse, Officer Pay Grade • Additional Allowances • Children, Surviving Spouse Entitled • Children, No Surviving Spouse • Historic Rates

Veteran's Death Was On or After January 1, 1993

Effective 12/1/14

Basic Monthly Rate = $1,254.19 (38 U.S.C. 1311(a)(1))

Additional Allowances:

a. Add $266.32 if at the time of the veteran's death, the veteran was in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling (including a rating based on individual unemployability) for a continuous period of at least 8 years immediately preceding death AND the surviving spouse was married to the veteran for those same 8 years. (38 U.S.C. 1311(a)(2)) b. Add the following allowance for each dependent child under age 18: * a. Effective 12/1/14 $310.71 per child (38 U.S.C. 1311(b)) c. If the surviving spouse is entitled to A&A, add $310.71. (38 U.S.C. 1311(c)) d. If the surviving spouse is entitled to Housebound, add $145.55 (38 U.S.C. 1311(d)) e. If the surviving spouse has one or more children under the age 18 on the award, add the 2-year transitional benefit of $270.00 effective, December 1, 2014 (38 U.S.C. 1311(f))

**DIC apportionment rates approved by the Under Secretary for Benefits under 38 CFR 3.461(b) will be the additional allowance received for each child.

265

Veteran's Death Was Before January 1, 1993

Surviving Spouse's Rates

Enlisted Pay Grades

Rates shown are for surviving spouse only.

See Note: e for additional amounts to be added per child.

E-1 f E-2 f E-3 a,f E-4 f E-5 f

$1,254.19 $1,254.19 $1,254.19 $1,254.19 $1,254.19

E-6 f E-7 g E-8 g E-9 g E-9 b

$1,254.19 $1,297.55 $1,369.81 $1,428.64 $1,542.19

Warrant Officer Pay Grades Rates shown are for surviving spouse only. See Note: e for additional amounts to be added per child.

W-1 g W-2 g W-3 g W-4 g

$1,324.39 $1,377.03 $1,417.29 $1,499.87

Officer Pay Grades Rates shown are for surviving spouse only. See Note: e for additional amounts to be added per child.

O-1 g O-2 g O-3 g O-4

$1,324.39 $1,369.81 $1,463.74 $1,551.48

O-5 O-6 O-7 O-8

$1,707.35 $1,925.16 $2,077.93 $2,282.32

O-9 O-10 O-10 c

$2,441.29 $2,677.67 $2,873.80

266

Children's Rates

If the Surviving Spouse is also Entitled Rate Additional Separate Award For Each Child Over 18

School Child: $263.23

Helpless Child: $529.55

If No Surviving Spouse is also Entitled Lump Amount Rate for One

Number of Children Total Payable Each Child Share

1 $529.55 $529.55

2 $761.80 $380.90

3 $994.07 $331.35

4 $1,182.96 $295.74

5 $1,371.87 $274.37

6 $1560.77 $260.12

7 $1,749.68 $249.95

8 $1938.57 $242.32

9 $2,127.48 $236.38

*For each helpless child over 18 add $310.71 **For each additional child add $188.91

267

Footnotes

a. Surviving spouse of Aviation Cadet or other service not covered by this table is paid the DIC rate for enlisted E-3 under 34. b. Veteran who served as Sgt Major of the Army or Marine Corps, Senior Enlisted Advisor of the Navy, Chief Master Sgt of the Air Force, or Master Chief Petty Officer of the Coast Guard. c. Veteran who served as Chairman of the Joint Chiefs of Staff, Chief of Staff of the Army or Air Force, Chief of Naval Operations, or Commandant of the Marine Corps. d. If surviving spouse entitled to A/A, add $310.71; if entitled to HB, add $145.55. e. Add $310.71 for each child under 18. f. Add $266.32 if veteran rated totally disabled 8 continuous years prior to death and surviving spouse was married to veteran those same 8 years g. Base rate is $1,520.51 if vet rated totally disabled 8 continuous years prior to death and surviving spouse was married to vet those same 8 years.

Historical Rate Tables 2014 | 2013 | 2012 | 2011 | 2010-2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999

268

Parents Dependency and Indemnity Compensation – Effective 12/1/14

Go to our How to Read Parents DIC Rate Tables to find out how to use these rate tables Go to the How to Read Pension Benefits Rate Tables page to learn how to read Pension rates pages.

For historic rate charts on this topic click on the date: 2013 |2012 |2011 | 2010-2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | before 1999.

Chart 1: Sole Surviving Parent Unremarried or Remarried Living with Spouse

Chart 2: One of Two Parents Not Living with Spouse

Chart 3: One of Two Parents Living with Spouse or Other Parent

Chart 1 Sole Surviving Parent Unremarried or Remarried Living with Spouse

Income Not Over Monthly Rate Each $1 Decrement

$800 $621 None

900 613 .08

1,000 605 .08

1,100 597 .08

1,200 589 .08

1,300 581 .08

1,400 573 .08

1,500 565 .08

1,600 557 .08

269

Income Not Over Monthly Rate Each $1 Decrement

1,700 549 .08

1,800 541 .08

1,900 533 .08

2,000 525 .08

2,100 517 .08

2,200 509 .08

2,300 501 .08

2,400 493 .08

2,500 485 .08

2,600 477 .08

2,700 469 .08

2,800 461 .08

2,900 453 .08

3,000 445 .08

3,100 437 .08

3,200 429 .08

3,300 421 .08

270

Income Not Over Monthly Rate Each $1 Decrement

3,400 413 .08

3,500 405 .08

3,600 397 .08

3,700 389 .08

3,800 381 .08

3,900 373 .08

4,000 365 .08

4,100 357 .08

4,200 349 .08

4,300 341 .08

4,400 333 .08

4,500 325 .08

4,600 317 .08

4,700 309 .08

4,800 301 .08

4,900 293 .08

5,000 285 .08

271

Income Not Over Monthly Rate Each $1 Decrement

5,100 277 .08

5,200 269 .08

5,300 261 .08

5,400 253 .08

5,500 245 .08

5,600 237 .08

5,700 229 .08

5,800 221 .08

5,900 213 .08

6,000 205 .08

6,100 197 .08

6,200 189 .08

6,300 181 .08

6,400 173 .08

6,500 165 .08

6,600 157 .08

6,700 149 .08

272

Income Not Over Monthly Rate Each $1 Decrement

6,800 141 .08

6,900 133 .08

7,000 125 .08

7,100 117 .08

7,200 109 .08

7,300 101 .08

7,400 93 .08

7,500 85 .08

7,600 77 .08

7,700 69 .08

7,800 61 .08

7,900 53 .08

8,000 45 .08

8,100 37 .08

8,200 29 .08

8,300 21 .08

8,400 13 .08

273

Income Not Over Monthly Rate Each $1 Decrement

8,499 to ** 5.08 .08

8,500 to ** 5 None

If entitled to Aid & Attendance allowance add $336 to the monthly rate. **If living with spouse: $ 19,673 If not living with spouse: $ 14,636

Chart 2 One of Two Parents Not Living with Spouse

Income Not Over Monthly Rate Each $1 Decrement

$800 $449 None

900 443 .06

1,000 436 .07

1,100 429 .07

1,200 421 .08

1,300 413 .08

1,400 405 .08

1,500 397 .08

1,600 389 .08

1,700 381 .08

1,800 373 .08

274

Income Not Over Monthly Rate Each $1 Decrement

1,900 365 .08

2,000 357 .08

2,100 349 .08

2,200 341 .08

2,300 333 .08

2,400 325 .08

2,500 317 .08

2,600 309 .08

2,700 301 .08

2,800 293 .08

2,900 285 .08

3,000 277 .08

3,100 269 .08

3,200 261 .08

3,300 253 .08

3,400 245 .08

3,500 237 .08

275

Income Not Over Monthly Rate Each $1 Decrement

3,600 229 .08

3,700 221 .08

3,800 213 .08

3,900 205 .08

4,000 197 .08

4,100 189 .08

4,200 181 .08

4,300 173 .08

4,400 165 .08

4,500 157 .08

4,600 149 .08

4,700 141 .08

4,800 133 .08

4,900 125 .08

5,000 117 .08

5,100 109 .08

5,200 101 .08

276

Income Not Over Monthly Rate Each $1 Decrement

5,300 93 .08

5,400 85 .08

5,500 77 .08

5,600 69 .08

5,700 61 .08

5,800 53 .08

5,900 45 .08

6,000 37 .08

6,100 29 .08

6,200 21 .08

6,300 13 .08

6,399 5.08 .08

6,400 to 14,636 5 None

If entitled to Aid & Attendance allowance add $336 to the monthly rate.

Chart 3 One of Two Parents Living with Spouse or Other Parent

Income Not Over Monthly Rate Each $1 Decrement

$1,000 $422 None

277

Income Not Over Monthly Rate Each $1 Decrement

1,100 419 .03

1,200 416 .03

1,300 413 .03

1,400 410 .03

1,500 407 .03

1,600 403 .04

1,700 399 .04

1,800 395 .04

1,900 391 .04

2,000 386 .05

2,100 381 .05

2,200 376 .05

2,300 371 .05

2,400 366 .05

2,500 360 .06

2,600 354 .06

2,700 348 .06

278

Income Not Over Monthly Rate Each $1 Decrement

2,800 342 .06

2,900 336 .06

3,000 329 .07

3,100 322 .07

3,200 315 .07

3,300 307 .08

3,400 299 .08

3,500 291 .08

3,600 283 .08

3,700 275 .08

3,800 267 .08

3,900 259 .08

4,000 251 .08

4,100 243 .08

4,200 235 .08

4,300 227 .08

4,400 219 .08

279

Income Not Over Monthly Rate Each $1 Decrement

4,500 211 .08

4,600 203 .08

4,700 195 .08

4,800 187 .08

4,900 179 .08

5,000 171 .08

5,100 163 .08

5,200 155 .08

5,300 147 .08

5,400 139 .08

5,500 131 .08

5,600 123 .08

5,700 115 .08

5,800 107 .08

5,900 99 .08

6,000 91 .08

6,100 83 .08

280

Income Not Over Monthly Rate Each $1 Decrement

6,200 75 .08

6,300 67 .08

6,400 59 .08

6,500 51 .08

6,600 43 .08

6,700 35 .08

6,800 27 .08

6,900 19 .08

7,000 11 .08

7,074 5.08 None

7,075 to 19,673 5 None

If entitled to Aid & Attendance allowance add $336 to the monthly rate.

281

SPECIAL BENEFIT ALLOWANCES For historic rate charts on this topic CLICK on one of the following: Special Benefit Allowances | Emergency Officer’s Retirement. Rate Table

Special Benefit Allowances Rate Table

Benefit Rate Date Rate Changed

Automobile Allowance $20,174.68. once 10-01-15

Clothing Allowance $777.29 12-01-14

Medal of Honor Pension $1,299.61 12-01-14

* The clothing allowance increase, while effective the date of the law, is not payable until the following August 1st. (Example: PL 97-306 effective October 1, 1982, increased the clothing allowance to $327.00. This rate was payable August 1, 1983.) For prior rate tables on this topic choose one: Current Rates | 2013 | 2012 | 2011 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999

282

Spina Bifida and Children of Women Vietnam Veterans Born with Certain Birth Defects Rate Tables Effective 12/1/14

There will be no COLA for 2016 so the rates are the same as last year.

Rate Table Navigation

For historic rate charts on this topic click on the date:

Current Rates | 2013 | 2012 | 2011 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | before 1999.

Spina Bifida

Level I | Level II | Level III Effective 12-01-2014

Disability Level Rate

Level I $314

Level II $1,072

Level III $1,827

Children of Women Vietnam Veterans Born with Certain Birth Defects (Sec. 401 of PL 106- 419)

Effective 12-01-2014

Disability Level Rate

Level I $145

Level II $314

Level III $1,072

Level IV $1,827

283

Veterans Pension Rate Table – Effective 12/1/14

Go to the How to Read Pension Benefits Rate Tables page to learn how to read Pension rates pages. For historic rate charts on this topic click on the date: 2013 |2012 | 2011 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | before 12-1-1999.

Veterans Pension Rate Table Veteran - Alone & With Dependents Date of Cost-of-Living Increase: 12-01-2014 Increase Factor: 1.7% Standard Medicare Deduction: $104.90

Maximum Annual Pension Rate (MAPR) Amount Category

If you are a veteran... Your yearly income must be less than...

Without Spouse or Child $12,868

To be deducted, medical expenses must exceed 5% of MAPR, or, $ 643

With One Dependent $16,851

To be deducted, medical expenses must exceed 5% of MAPR, or, $ 842

Housebound Without Dependents $15,725

Housebound With One Dependent $19,710

A&A Without Dependents $21,466

A&A With One Dependent $25,448

Two Vets Married to Each Other $16,851

Two Vets Married to Each Other One H/B $19,710

Two Vets Married to Each Other Both H/B $22,566

Two Vets Married to Each Other One A/A $25,448

Two Vets Married to Each Other One A/A One H/B $28,300

Two Vets Married to Each Other Both A/A $34,050

Add for Each Additional Child to any category above $2,198

Child Earned Income Exclusion effective: 01-01-2000 $7,200

(38 CFR §3.272 (j)(1)) This link takes you to the full regulation; 01-01-2001 $7,450 scroll down to get the specific citation.

284

01-01-2002 $7,700

01-01-2003 $7,800

01-01-2004 $7,950

01-01-2005 $8,200

01-01-2006 $8,450

01-01-2007 $8,750

01-01-2008 $8,950

01-01-2009 $9,350

01-01-2012 $9,750

01-01-2013 $10,000

01-01-2014 $10,150

01-01-2015 $10,300

01-01-2016 $10,350

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Survivors Pension Rate Tables - Effective 12/1/14

Go to the How to Read Pension Benefits Rate Tables page to learn how to read Pension rates pages. For historic rate charts on this topic click on the date: 2013 | 2012 |2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999 | before 1999. Improved Death Pension Rate Table Surviving Spouse/Child(ren) - Alone or With the Other

Date of Cost-of-Living Increase: 12-01-2014 Increase Factor: 1.7% Standard Medicare Deduction: $104.90

Maximum Annual Pension Rate (MAPR) Category Amount

MAPR Without Dependent Child $8,630

To be deducted, medical expenses must exceed 5% of MAPR or $ 431

MAPR With One Dependent Child $11,296

To be deducted, medical expenses must exceed 5% of MAPR or $564

Housebound Without Dependents $10,548

Housebound With One Dependent $13,209

A&A Without Dependents $13,794

A&A Without Dependents (SAW Veteran's Surviving Spouse) $14,353

A&A With One Dependent $16,456

A&A With One Dependent (SAW Veteran's Surviving Spouse) $16,955

SBP/MIW Annuity Limitation $8,630

Add for Each Additional Child $2,198

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Maximum Annual Pension Rate (MAPR) Category Amount

MAPR FOR CHILD ALONE $2,198

Child Earned Income Exclusion effective 1/1/2000 $7,200

(38 CFR §3.272(j)(1)) effective 1/1/2001 $7,450

effective 1/1/2002 $7,700

effective 1/1/2003 $7,800

effective 1/1/2004 $7,950

effective 1/1/2005 $8,200

effective 1/1/2006 $8,450

effective 1/1/2007 $8,750

effective 1/1/2008 $8,950

effective 1/1/2009 $9,350

effective 1/1/2012 $9,750

effective 1/1/2013 $10,000

effective 1/1/2014 $10,150

effective 1/1/2015 $10,300

effective 1/1/2016 $10,350

287

INDEX

This index should help you find some things that you may need, that are in more than one place in the desk book, and/or are not where you might expect them to be. References are to pages.

38 CFR §3.114 246 38 CFR §3.816 246 Accrued benefits 80 ACDUTRA/Inactive Duty Training 18 Aid and Attendance/Housebound for pension…76 Amputation Rule Page 53 Amyotrophic Lateral Sclerosis (ALS)(Lou Gehrig’s Disease), service connection for 48 Arlington National Cemetery 206 Automobile and Special Adaptive Equipment 177, 182, 219 Benefits Delivery at Discharge (BDD) 63 CHAMPVA 121, 177 Child Earned Income Exclusion (pension) 284 Clothing Allowance 176, 277 Code of Ethics (CVSO) 11 Combined rating table exercise 227 Committee on Waivers 156 Common law marriage 21, 250 Confidentiality of Claims 25 and following CRDP: Concurrent Retirement and Disability Payments 183 CRSC: Combat Related Special Compensation 183 Definitions 16 Dental Services Eligibility 117 Dependency/marriage 19 Designated Specialty Centers (Blindness, amputees, paraplegic veterans; Alcohol, Drug Abuse) 118 Disability Discharge 59 Duty to Assist...35 Effective dates 68, 244 Evidence, principles of and evaluation of 216 EVR completion notes 95 Fee Basis Card; application 123 FGIDs (Functional Gastrointestinal Disorders) 252 Form to request military records 34 Fully Developed Claim (FDC) 65 and following Gulf War service defined 48 Health Care Priority Groups 111 Hearings 166 Herbicide (Agent Orange) 47, 246 IDES 65, 242 Incarceration; effect of benefits upon 62, 154(compensation), 79,154 (pension) Inferred Issues/Issue Identification 39 Informal claims/Intent to File 238 Issue Identification/Inferred Issues 39

288

LGBT veterans, changes in benefits for 241 Liberalizing Legislation/impact on effective dates 244 Limits on Duty to Assist 41 Loss of Use 53 Marginal Employment 55 Medical expense reporting for pension and Parents DIC 97, 209 Medical Symbols 200 Military Records Request 33, 40 MUCMI(Medically Unexplained Chronic Multi-symptom Illnesses) 251 National Cemetery Burial 105 Net Worth Determinations 73 Par 28 Prestabilization rating 55 Par 29 Hospitalization rating 56 Par 30 Convalescent rating 57 Payment of pension during incarceration 75 Periods of War 18 Permanent and Total (P&T)ratings for pension 75 Predischarge Examinations (BDD) 63 Presidential Memorial Certificate 103 Priority Groups for Health Care…111 Proof of Age 24 Pyramiding 53 Quick Start 63 Recoupment of benefits 58 Reopened Claim 38, 216 REPS(Reinstated Entitlement Program for Survivors) 180 Retired Pay offsets 183 SCSD: Special Compensation for Severely Disabled Veterans 183 Service requirements for pension 74 Special Home Adaptation Grant; Special Housing Assistance 172 Special Monthly Compensation (SMC) explanation 205 Special Monthly Pension (SMP)(Housebound, Aid & Attendance) 72 Special situations; missing records; 1973 Fire St. Louis RPC 42 Spina bifida allowance 178, 278 SSB(Special Separation Benefit) 59 Status, question of 36 Tricare 120 Traumatic Brain Injuries 254 Types of claims 37 Undiagnosed Illness 251 Unemployability/TDIU 53 VA/DVA History 14 Valid marriage/Deemed Valid Marriage 20 Veteran Health Registries 128 VSI(Voluntary Separation Incentive) 59 Women Veteran Health issues 129, 253

289