VANOTES

January 17, 2002

Director (00/21)In Reply Refer To: 211

All VBA Regional Offices and CentersFast Letter 02-04

SUBJ: Public Law 107-103, Veterans Education and Benefits Expansion Act of 2001

There are a number of changes in this new law that impact veterans’ benefits programs. This letter identifies these changes and gives initial processing guidance.

Section 201—Presumptions Based on Herbicide Exposure in Vietnam (Amends 38 U.S.C. § 1116)

·This section eliminates the requirement that respiratory cancer (cancers of the lung, bronchus, larynx, trachea) become manifest within 30 years of the veteran’s departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides such as Agent Orange. Effective Date: January 1, 2002. Title 38 CFR § 3.114 (liberalizing law) governs the effective date of entitlement in these cases.

·This section also expands the presumption of exposure to herbicides to include all Vietnam veterans, not just those who have a disease on the presumptive list in 38 U.S.C. § 1116(a)(2) and 38 CFR § 3.309(e).

Effective Date: December 27, 2001. Title 38 CFR § 3.114 (liberalizing law) governs the effective date of entitlement in these cases.

·In addition, this section adds Type 2 diabetes mellitus to the presumptive list in 38 U.S.C. § 1116(a)(2). (This disease had previously been added to VA's list in 38 CFR § 3.309(e).)

Section 202—Gulf War Veterans’ Chronic Disabilities (Amends 38 U.S.C. § 1117)

·This section expands the definition of “qualifying chronic disability” (for service connection) to include not only:

(1) a disability resulting from an undiagnosed illness as stated in prior law; but also

(2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and

(3) any diagnosed illness that the Secretary determines in regulations warrants a presumption of service-connection.

·“Qualifying chronic disability” includes one or any combination of these 3 types of illnesses.

·This section also extends the period in which the VA may determine that a presumption of service connection should be established for a disability occurring in Gulf War veterans, to September 30, 2011. (Through a regulation change published in November 2001, VA had extended the period (to December 31, 2006) in which an undiagnosed illness must manifest to a degree of 10 percent or more.) Effective Date: March 1, 2002. Title 38 CFR § 3.114 (liberalizing law) governs the effective date of entitlement in these cases.

Section 203—Protection of Service-Connected Status for Gulf War Veterans Participating in Medical Research (Amends 38 U.S.C. § 1117)

·This section gives the Secretary of Veterans Affairs authority to protect service- connected status granted under 38 U.S.C. § 1117 or 1118 for Gulf War veterans participating in VA-sponsored medical research study. It states that when the Secretary determines that protection is necessary to carry out the study, he may order that such service-connected status be protected for all veterans participating in the study. VA will publish a list of studies for which this protection applies. Effective Date: the authority may be used by the Secretary with respect to any medical research project of the Department of Veterans Affairs, whether commenced before, on, or after the date of this amendment (December 27, 2001).

Section 204—Repeal of Limitation of Benefits for Incompetent Institutionalized Veterans (Amends 38 U.S.C. § 5503)

·This section eliminates the withholding of benefits for incompetent, hospitalized veterans without dependents. More information on review of benefits currently in withholding status under the old estate limitation will be provided in a future Fast Letter.

Effective Date: December 27, 2001. There is no need for an affected veteran to file a claim to end the VA withholding.

Section 206—Presumption of Permanent and Total Disability for Veterans Applying for Nonservice-Connected Pension—Nursing Home Patients and SSA Disabled (Amends 38 U.S.C. § 1502)

·This section requires VA to presume that a veteran is permanently and totally disabled if the veteran is:

(1)a patient in a nursing home for long-term care due to disability;

(2)determined to be disabled for purposes of Social Security Administration benefits;

(3)unemployable as a result of disability reasonably certain to continue throughout the life of the person; or

(4)suffering from either a permanent disability which would render it impossible for the average person to follow a substantially gainful occupation, or any disease or disorder that the Secretary determines justifies a finding that the person is permanently and totally disabled.

Effective Date: September 17, 2001. Title 38 CFR § 3.114 (liberalizing law) governs the effective date of entitlement in these cases.

Section 207—Elimination of Permanent and Total Disability Requirement for Nonservice-Connected Pension Applicants Who Are Age 65 or Over (Adds a New 38 U.S.C. § 1513)

·This section states that a veteran who is age 65 or over and meets the military service and income/net worth requirements for nonservice-connected pension is eligible as if the veteran were determined to be permanently and totally disabled. Effective Date: September 17, 2001. Title 38 CFR § 3.114 (liberalizing law) governs the effective date of entitlement in these cases.

Section 304¾Improvement of Veterans Outreach Programs (amends 38 U.S. Code

§ 7722)

·This section requires VA to furnish benefit and health care services information to all veterans or dependents when they first apply for any VA benefit. The C&P Service staff is reviewing this requirement and will be working with other VBA programs and with VHA and NCA to develop an implementation strategy. Field stations will be informed as procedures are finalized.

Effective Date: December 27, 2001.

Section 501—Increase in Burial Benefits (Amends 38 U.S.C. §§ 2307 and 2303)

·This section increases the amount of burial benefits if the veteran's death is service-connected, from $1,500 to $2,000.

Effective Date: applies to cases in which the death occurred on or after September 11, 2001.

·This section also increases the amount of plot allowance from $150 to $300. Effective Date: applies to cases in which the death occurred on or after December 1, 2001.

·We will issue instructions for how to process cases where the burial benefits have already been paid at the prior amount and an additional amount is now payable under this section.

Section 502—Government Markers for Marked Graves at Private Cemeteries (Amends 38 U.S.C. § 2306)

·This section requires VA to provide, upon request, government markers for marked graves at private cemeteries if the veterans were eligible for burial in a national cemetery or entitled to military retired pay under chapter 67 of title 10 U.S.C. (or would have been entitled if they had been over 60 years old).

Effective Date: applies to cases in which the death occurred on or after December 27, 2001.

·The authority to furnish a marker under this section expires on December 31, 2006.

Section 503—Increase in Amount of Assistance for Automobile for Certain Disabled Veterans (Amends 38 U.S.C. § 3902)

·This section increases the amount payable by VA for an automobile or other conveyance for certain disabled veterans, from the prior amount of $8,000 to $9,000. This applies to veterans with service-connected loss or permanent loss of use of one or both hands or feet, or with permanent impairment of vision of both eyes to a certain degree specified in 38 CFR § 3.808.

Effective Date: December 27, 2001.

Section 504—Extension of Limitation on Pension for Certain Recipients of Medicaid-Covered Nursing Home Care (Amends 38 U.S.C. § 5503)

·This section extends the $90 limitation on pension for certain recipients of Medicaid-covered nursing home care to September 30, 2011.

Section 505—Prohibition on Certain Benefits to Fugitive Felons (Adds a New 38 U.S.C. § 5313B)

·This section prohibits the payment of benefits to veterans while they are fugitive felons or their dependents while the veteran is a fugitive felon. For purposes of this section, “fugitive felon” means a person who is a fugitive by reason of:

(1)fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or

(2)violating a condition of probation or parole imposed for commission of a felony under Federal or State law.

·The term “felony” includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law. The term “dependent” means a spouse, surviving spouse, child, or dependent parent of a veteran.

·This prohibition applies to compensation, dependency and indemnity compensation, pension, medical care, life insurance, vocational rehabilitation, or education benefits. This section also requires VA to furnish to any Federal, State, or local law enforcement official, upon the written request of such official, the most current address maintained by the Secretary of a person who is eligible for such a benefit if such official:

(1)provides to the Secretary such information as the Secretary may require to fully identify the person;

(2)identifies the person as being a fugitive felon; and

(3)certifies to the Secretary that apprehending such person is within the official duties of such official.

·This section also requires VA to enter into memoranda of understanding with Federal law enforcement agencies, and allows VA to enter into agreements with State and local law enforcement agencies, for purposes of furnishing addresses to such agencies as indicated above.

·We plan to obtain the names of veterans to whom this law may apply and notify each Veterans Service Center as soon as possible.

Effective Date: December 27, 2001. (Although the effective date of termination of benefits under this change in law will be December 27, 2001, pursuant to 38 CFR § 3.103(b), you must still provide due process notice before terminating benefits.)

Section 505—Limitation on Payment of Compensation for Veterans Remaining Incarcerated Since October 7, 1980 (Amends 38 U.S.C. § 5313)

·This section states that the current limitations on payment of compensation benefits to incarcerated veterans (contained in 38 U.S.C. § 5313) will now apply to any veteran who is entitled to compensation and who:

(1)on October 7, 1980, was incarcerated in a Federal, State, or local penal institution for a felony committed before that date; and

(2)remains so incarcerated for conviction of that felony as of the date of the enactment of this Act.

·This legislative amendment does not apply to persons receiving dependency and indemnity compensation.

·We plan to obtain the names of veterans to whom this law may apply and notify each Veterans Service Center as soon as possible.

Effective Date: this section will apply to the payment of compensation for months beginning on or after the end of the 90-day period beginning on the date of the enactment of this law (December 27, 2001). (Although the effective date of termination of benefits under this provision will be December 27, 2001, in accordance with 38 CFR § 3.103(b), you still must provide due process notice before terminating benefits.)

Implementation of These Statutory Changes

·It is not necessary to wait for changes in the regulations to be completed to apply these provisions of Pub. L. 107-103. They should be put into effect immediately.

Questions?

·Questions regarding these changes should be submitted to the Q&A mailbox at VAVBAWAS/CO/21Q&A by the station Question Coordinator. (Fast Letter 02-04.)

This letter will be rescinded January 17, 2004.

/s/

Ronald J. Henke, Director

Compensation and Pension Service

Discovered in 1989,hepatitis C is a relatively new virus, but according to the American Liver Foundation (ALF), it is now the most common chronic blood-borne infection in the United States.

Hepatitis C virus (HCV) infects the liver, causing inflammation that damages liver tissue. A very slow-acting infection, it can take anywhere from 10 to 40 years to advance. Because there are no early symptoms of the disease, ALF estimates that 70 percent of those infected aren't even aware of it.

Currently, there is no vaccine available to immunize against the virus.

In the majority of cases, HCV is contracted through direct exposure to blood. People at risk include emergency medical and health care workers, those who have used intravenous drugs, individuals who received blood transfusions before 1992, and people who have tattoos or body piercing. A large number of veterans are infected with HCV, says Mirza Ali, M.D., Chief of Infectious Diseases at the VA Medical Center (VAMC) in Wilkes-Barre, PA. As a result, VA's program for hepatitis C patients is well developed, being one of the first of its kind after the discovery of the virus. Early on, VA proactively sought out high-risk veterans and today, every patient who comes into a VAMC is screened for HCV-associated risk factors.

Since the virus is slow to progress, not every veteran with HCV will need to be treated immediately. "Treatment is never an emergency," says Dr. Ali, "If the virus is showing a low level of activity, we will just follow the patient, because the treatment is not easy."

According to Michael Surdy, Pharm. D. (Doctor of Pharmacy) and manager of the hepatology clinic at the Wilkes-Barre VAMC, a biopsy of the patient’s liver will show the amount of cirrhosis (scarring) that has occurred and will determine whether there is a need for treatment. Only about 20 percent of people with HCV need treatment and of that percentage, he says, about half will respond positively.

Dr. Surdy confirms that the treatment of HCV is not an easy undertaking. "The usual treatment is a drug called interferon, which comes with many side effects and can make other medical conditions worse," he says. Because of that, before a veteran begins treatment - which can take from six months to a year - he or she has a thorough physical and mental examination so that any existing health conditions are noted. Then the patient will need blood work done at least once a week for a month and every two weeks after that, if the results are stable.

As for the patients that don't need treatment right away, the one lifestyle change recommended is to abstain from alcohol, which can also cause liver damage. In addition, VA educated all patients with HCV - and their families - about ways to avoid contraction other forms of hepatitis and preventing the spread of HCV to other family members.

If you'd like to learn more about the hepatitis C virus, ask your VA primary care provider.

Who Can Fight for the Soldiers?

Veterans Need the Right to Hire a Lawyer

By James C. McKay

Sunday, January 22, 2006 ; B02

If American soldiers are mature and responsible enough to choose to risk their lives for their country, shouldn't they be considered competent to hire a lawyer? No, not if that lawyer is going to pursue their veterans' benefits claims before the Department of Veterans Affairs. That's the flabbergasting answer from Congress and the Supreme Court.

During the Civil War, a statute was enacted imposing a $5 limit on the fees paid to lawyers or agents assisting veterans applying for pensions, reenlistment bounty or other military allowances. Two years later, the cap was raised to $10 -- and remained at that level for 124 years. In those days, filing a claim involved simply filling out a one-page form; a $10 fee was reasonable for the claimants who needed assistance. But as time passed, the fee became so trivial that its practical effect was to bar veterans from employing lawyers.

In 1985, the Supreme Court upheld the limit, rejecting the contention that it effectively deprived veterans of their Fifth Amendment right to due process or their First Amendment right to petition for the redress of grievances. And in 1988, while Congress eliminated that $10 ceiling and created a Court of Appeals for Veterans Claims, it also said that a veteran could hire a lawyer only after completing a complex administrative process that culminates at the Board of Veterans' Appeals (BVA). By that time, however, a case has been lost, often because the veteran did not present the correct claim, or properly present available evidence -- technicalities that could hurt the case on appeal even after a lawyer is involved.

As a result, many veterans' benefits disappear down the rabbit hole. Take the case of Dana Myers, who joined the Marine Corps as a teenager and who received an honorable medical discharge on Dec. 20, 1957, because of back problems. The next year, he was denied disability payments. In April 1959, he sent a letter to the regional Veterans' Affairs office taking issue with that ruling. But later the Board of Veterans' Appeals said that Myers didn't use the precise words that are required for what is known as a "notice of disagreement" (or NOD). Without that, the board rejected his appeal.

If Myers had hired a lawyer, he would likely have followed the correct procedure back in 1959. Instead, Myers is still fighting his case. In 1994, he won a 40 percent disability payment, but it wasn't paid retroactively because of his procedural errors back in 1959. I began representing him on a pro bono basis in July 1998, the first time he ever had a lawyer, and we won retroactive payments. Now the Veterans Administration (VA) is refusing to give him back payments based on anything more than a

10 percent disability for most of that time. Another appeal is pending.

Consider the plight of Terry Ledford, who developed schizophrenia while serving in the Air Force. He lived on 100 percent disability benefits from his medical discharge in 1976 until 1981, when his benefit level was suddenly reduced under provisions of new rules in a VA circular. A non-lawyer veterans' service organization representative was assigned to help Ledford. But it took 17 years for the case to make its way through VA administrative processes and court hearings. And in the end, a federal court threw out the claim because Ledford failed at the outset of his case to challenge the legality of the circular -- a strategy a lawyer might have pursued but not an untrained vet, let alone one suffering psychiatric problems.

This issue of legal assistance for vets has been scrutinized by those in the best position to know whether an attorney would help or hinder the process, or whether an attorney could expedite and clarify the process. Judge Frank Nebeker, the first chief judge of the Veterans' Appellate Court, said in a January 1999 concurring opinion that the court continued "to see many appeals where, if counsel were realistically permitted to represent a claimant during the adjudication process before a final BVA decision, an appeal would be unnecessary or seen as futile by the applicant. Effectively limiting lawyer representation until after a BVA final decision is, quite arguably, unnecessarily paternalistic."

Generally speaking, the Constitution frowns on government paternalism -- the idea that mature adults are incapable of charting their own destinies.

For example, in 1977, the Supreme Court held in Bates v State Bar of Arizona that because of the First Amendment, advertising by lawyers could not be prohibited in order to protect consumers from making what the government believed would be ill-advised choices. Justice Harry Blackmun explained that the purported justification "assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in complete ignorance than trusted with correct but incomplete information."

Yet both Congress and the Supreme Court have taken a paternalistic approach toward veterans seeking benefits by denying them an opportunity to hire a lawyer. Although grudgingly recognizing that a lawyer might be helpful in a complex case, a plurality of Supreme Court justices in 1985 declared that in most instances unscrupulous lawyers were likely to overcharge veterans, sow confusion, cause delays and obscure the truth. In any event, according to the justices, lawyers were superfluous in the vast majority of cases because only a tiny fraction of the cases were complex. Besides, added the four justices in the same ruling that upheld the $10 fee, non-lawyer representatives of numerous veterans service organizations were available to assist veterans free of charge.

Whatever the merits of excluding lawyers in the past, the reasons no longer exist. Since the creation of the veterans' appellate court, cases have become far more complex. Today, many veterans' cases are as complicated as medical malpractice claims, which are prosecuted on behalf of clients by highly specialized lawyers. They often require experienced advocates to analyze, evaluate and develop evidence relating to a vast number of mental and physical disabilities.

Although representatives from some veterans' service organizations are trained to develop claims, many other reps lack such skills. In any event, they are not lawyers, who are better suited to perform those tasks. Moreover, each service representative typically handles scores of veterans, minimizing personal contact. All this makes it unlikely that service representatives will persuade the board to sustain the veterans' claims and, when claims are denied, leave the case in the best possible position for an appeal to the veterans' appellate court.

The exclusion of lawyers has also been a cause for the huge delays throughout the benefits system. It is common for a VA proceeding to last more than a decade. Many claims are recycled over and over. Whereas ethical rules prohibit lawyers from filing frivolous claims, there are no such rules constraining service representatives. Many veterans have died of old age before their claims were resolved. Their claims die with them, since widows and orphans by statute have no right to pursue the claims.

In a 2004 interview, another chief judge of the Veterans' Appellate Court, Donald Ivers, who is also a former VA general counsel, stated that "The Court has historically taken a position recognizing that involvement of lawyers before the VA could be very helpful, and I concur." Retired Judge Ronald Holdaway, at the 2004 Eighth Judicial Conference of the veterans appellate court, stated his view that veterans should have the right to counsel at the administrative level: "I think you would get better records, you would narrow the issues, there would be screening . . . But the fundamental reason: Why should veterans be treated differently from anyone else?" Federal circuit court judges also understand the changes in the veterans' benefits system since the creation of the veterans appellate court, and the importance of the presence of lawyers at the early stages of VA proceedings.

Years ago, Justice Oliver Wendell Holmes wrote that it is "revolting" if a rule of law "simply persists in the blind imitation of the past." The adherence to a Civil War era approach to veterans' rights seems to fall into that category. If veterans are mature and responsible enough to go to war, vote and pay taxes, they should be treated as old enough to decide whether to pursue a claim with the help of a lawyer.

Author's e-mail: JMcKay@cov.com

James McKay, a veteran of World War II, is a senior counsel at the Washington law firm of Covington & Burling. Over 10 years, he has represented, on a pro bono basis, many veterans seeking disability benefits.