Veterans Benefits Manual, 2012 Edition

TABLE OF CONTENTS

Foreword
Acknowledgements
About the Authors

Chapter 1: INTRODUCTION AND HOW TO USE THIS MANUAL
1.1 THE NEED FOR A COMPREHENSIVE PRACTICE MANUAL FOR VETERANS ADVOCATES
1.2 INFORMATION ABOUT THE ORGANIZATION THAT WROTE THIS MANUAL
1.3 HOW TO USE THE 2012 EDITION OF THIS MANUAL

PART I: DISABILITY BENEFITS FOR VETERANS

Chapter 2: VETERANS' BASIC ELIGIBILITY FOR VA BENEFITS
2.1 INTRODUCTION
2.2 DEFINITION OF A VETERAN
2.3 OTHER BASIC ELIGIBLITY CONSIDERATIONS

Chapter 3: COMPENSATION FOR VETERANS WITH SERVICE-CONNECTED DISABILITIES
3.1 INTRODUCTION
3.2 REQUIREMENT OF EVIDENCE OF CURRENT DISABILITY
3.3 REQUIREMENT OF EVIDENCE OF AN IN-SERVICE PRECIPITATING DISEASE, INJURY, OR EVENT
3.4 REQUIREMENT OF A NEXUS BETWEEN THE CURRENT DISABILITY AND AN IN-SERVICE PRECIPITATING DISEASE, INJURY, OR EVENT
3.5 DISABILITY COMPENSATION FOR MENTAL DISABILITIES OTHER THAN POSTTRAUMATIC STRESS DISORDER
3.6 DISABILITY CLAIMS FOR POSTTRAUMATIC STRESS DISORDER (PTSD)
3.7 DISABILITY COMPENSATION FOR VETERANS OF THE PERSIAN GULF WAR, OPERATION ENDURING FREEDOM, AND OPERATION IRAQI FREEDOM
3.8 DISABILITY COMPENSATION FOR DISEASES ASSOCIATED WITH AGENT ORANGE AND OTHER HERBICIDES USED IN VIETNAM AND ELSEWHERE
APPENDICES

Chapter 4: COMPENSATION FOR INJURY OR DEATH CAUSED BY VA HEALTH CARE OR OTHER SPECIFIED ACTIVITIES
4.1 OVERVIEW
4.2 CLAIMS FOR 38 U.S.C.S. § 1151 BENEFITS
4.3 DAMAGES UNDER THE FEDERAL TORT CLAIMS ACT
4.4 CONSIDERATIONS IN FILING CLAIMS UNDER THE FTCA AND SECTION 1151
4.5 ETHICAL OBLIGATIONS AND ATTORNEY FEES UNDER THE FTCA AND SECTION 1151

Chapter 5: SETTING, INCREASING, OR REDUCING A VETERAN'S SERVICE-CONNECTED DISABILITY RATING
5.1 EVALUATING THE DEGREE OF DISABILITY FOR SERVICE-CONNECTED DISABILITIES
5.2 RATING THE DEGREE OF DISABILITY FOR PARTICULAR TYPES OF DISABILITIES
5.3 EXTRASCHEDULAR RATINGS FOR EXCEPTIONAL OR UNUSUAL DISABILITIES
5.4 TEMPORARY 100 PERCENT DISABILITY RATINGS
5.5 TOTAL DISABILITY RATINGS BASED ON INDIVIDUAL UNEMPLOYABILITY
5.6 SPECIAL MONTHLY COMPENSATION: STATUTORY AWARDS OF COMPENSATION
5.7 REEXAMINATIONS BY THE VA
5.8 CLAIMS FOR INCREASES IN DISABILITY RATING
5.9 EFFECTIVE DATE FOR RATING INCREASES
5.10 VA PROCEEDINGS TO REDUCE A RATING
5.11 VA PROCEEDINGS TO SEVER SERVICE CONNECTION
APPENDICES

Chapter 6: PENSION FOR VETERANS WITH NON-SERVICE-CONNECTED DISABILITIES
6.1 NON-SERVICE-CONNECTED DISABILITY PENSION BENEFITS
6.2 THE IMPROVED PENSION PROGRAM FOR VETERANS
6.3 SECTION 306 PENSION AND OLD-LAW DISABILITY PENSION
6.4 IMPORTANT FACTORS TO CONSIDER IN ADVISING ELDERLY VETERANS
APPENDIX

PART II: VA BENEFITS FOR NON-VETERANS

Chapter 7: VA BENEFITS FOR FAMILY MEMBERS
7.1 INTRODUCTION AND OVERVIEW OF VA BENEFITS FOR FAMILY MEMBERS
7.2 QUALIFYING FAMILY RELATIONSHIPS
7.3 BENEFITS AVAILABLE TO QUALIFYING SURVIVORS OF A DECEASED VETERAN OR DECEASED VA CLAIMANT
7.4 SPECIAL ALLOWANCE RATES FOR SPOUSES AND PARENTS WHO REQUIRE AID & ATTENDANCE OR WHO ARE PERMANENTLY HOUSEBOUND
7.5 DIRECT PAYMENT TO FAMILY MEMBERS OF A VETERAN'S COMPENSATION OR PENSION BENEFITS
7.6 EDUCATIONAL ASSISTANCE FOR SPOUSES AND CHILDREN OF VETERANS
7.7 BENEFITS FOR CHILDREN BORN WITH SPINA BIFIDA AND CERTAIN OTHER BIRTH DEFECTS TO A VIETNAM VETERAN
APPENDICES

PART III: RULES AFFECTING THE AMOUNT OF BENEFITS PAID

Chapter 8: EFFECTIVE DATES FOR AWARDS OF BENEFITS
8.1 THE GENERAL RULE
8.2 SPECIAL CONSIDERATIONS IN SETTING THE EFFECTIVE DATE FOR AN AWARD OF TDIU
8.3 THE EFFECTIVE DATE PROVIDED BY THE GENERAL RULE WHEN THE VA FAILED TO ADJUDICATE A CLAIM OR FAILED TO ISSUE A FINAL DECISION ON A PENDING CLAIM
8.4 THE ARGUMENT FOR AN EARLIER EFFECTIVE DATE BASED ON THE ALLEGATION THAT THE CLAIMANT WOULD HAVE FILED A WRITTEN CLAIM EARLIER IF VA HAD COMPLIED WITH ITS DUTIES
8.5 SPECIAL RULES THAT RESULT IN AN EARLIER EFFECTIVE DATE THAN WOULD THE GENERAL RULE
8.6 THE EXCEPTION FOR A FAVORABLE CHANGE IN STATUTE OR REGULATION
8.7 EFFECTIVE DATES FOR CLAIMS GRANTED DUE TO AGENT ORANGE EXPOSURE IN VIETNAM
APPENDIX

Chapter 9: SPECIAL ISSUES FOR DISABILITY AND DEATH BENEFITS
9.1 VA BENEFITS ARE EXEMPT FROM TAXATION, CLAIMS OF CREDITORS, AND OTHER LEGAL PROCESS
9.2 THE EFFECTS OF INCARCERATION ON ENTITLEMENT TO RECEIVE VA COMPENSATION AND PENSION BENEFITS
9.3 PROHIBITION AGAINST DUPLICATION OF BENEFITS
9.4 OVERPAYMENTS OF BENEFITS AND OTHER DEBTS OWED TO THE VA
9.5 ADJUDICATION OF INCOMPETENCY

PART IV: VA HEALTH CARE AND OTHER BENEFITS

Chapter 10: VA HEALTH CARE
10.1 INTRODUCTION
10.2 ADVOCACY AND VA HEALTH CARE
10.3 ENROLLMENT IN THE VA HEALTH CARE SYSTEM
10.4 SUMMARY OF VA HEALTH CARE BENEFITS
10.5 VA HOSPITAL CARE AND OUTPATIENT CARE
10.7 STATE VETERANS HOMES
10.8 NON-INSTITUTIONAL EXTENDED CARE PROGRAMS
10.9 FAMILY CAREGIVER PROGRAM
10.10 PHARMACY SERVICES
10.11 VA DOMICILIARY CARE AND RESIDENTIAL REHABILITATION TREATMENT PROGRAMS
10.12 READJUSTMENT COUNSELING AND MENTAL HEALTH SERVICES
10.13 PROSTHETICS AND SENSORI-NEURAL AIDS
10.14 VA DENTAL CARE
10.15 PAYING FOR VA HEALTH CARE
10.16 VERIFYING INCOME FOR VA HEALTH CARE
10.17 FEE-BASIS CARE (CONTRACT CARE OR PURCHASED CARE) AND AUTHORIZATION FOR NON-VA CARE
10.18 REIMBURSEMENT OF NON-VA EMERGENCY TREATMENT EXPENSES AND NON-VA UNAUTHORIZED MEDICAL EXPENSES
10.19 REIMBURSEMENT FOR TRANSPORTATION AND LODGING RELATED TO MEDICAL CARE
10.20 WOMEN VETERANS AND VA HEALTH CARE
10.21 VETERANS WITH TRAUMATIC BRAIN INJURY
10.22 ENVIRONMENTAL HEALTH REGISTRY PROGRAM
10.23 HEALTH CARE FOR DEPENDENTS AND SURVIVORS OF VETERANS
10.24 CHARACTER OF DISCHARGE AND ELIGIBILITY FOR VA HEALTH CARE
10.25 BREAKING SCHEDULED APPOINTMENTS
10.26 NON-VA TREATMENT FOR SOME VETERANS WITH DRUG AND ALCOHOL PROBLEMS
10.27 VA HEALTH CARE FOR MILITARY SEXUAL TRAUMA-RELATED CONDITIONS
10.28 VOCATIONAL ASSISTANCE AND THERAPEUTIC WORK SERVICES FOR VETERANS RECEIVING VA HEALTH CARE
APPENDIX

Chapter 11: OTHER VA BENEFITS
11.1 VA BURIAL AND MEMORIAL BENEFITS
11.2 VA EDUCATION BENEFITS
11.3 VA VOCATIONAL REHABILITATION AND TRAINING BENEFITS
11.4 VA HOME LOAN GUARANTY BENEFITS
11.5 SPECIAL VA BENEFITS FOR THE DISABLED
11.6 VA LIFE INSURANCE PROGRAMS

PART V: THE VA CLAIMS ADJUDICATION PROCESS

Chapter 12: ADJUDICATION OF ORIGINAL AND REOPENED CLAIMS BY VA REGIONAL OFFICES
12.1 INTRODUCTION
12.2 THE THREE TYPES OF CLAIMS INVOLVING THE SAME BENEFIT THAT CAN BE INITIATED AT AN RO
12.3 TERMINOLOGY USED BY THE ROS TO DESCRIBE CLAIMS
12.4 THE ADVANTAGES OF FILING AN ORIGINAL OR REOPENED CLAIM EARLY
12.5 CLAIMANT'S BURDENS AND VA'S DUTIES IN THE CLAIMS ADJUDICATION PROCESS
12.6 DECISIONS BY THE AGENCY OF ORIGINAL JURISDICTION
12.7 NOTICE OF DISAGREEMENT
12.8 OPTIONAL APPEAL OF THE RATING DECISION TO A DECISION REVIEW OFFICER
12.9 HEARINGS BEFORE THE AGENCY OF ORIGINAL JURISDICTION
12.10 STATEMENT OF THE CASE
12.11 FILING THE SUBSTANTIVE APPEAL
12.12 THE LONG DELAY BETWEEN THE SUBSTANTIVE APPEAL AND CERTIFICATION TO THE BVA
12.13 SPECIAL RULES: SIMULTANEOUSLY CONTESTED CLAIMS
12.14 EQUITABLE RELIEF BY THE SECRETARY OF VETERANS AFFAIRS
APPENDICES

Chapter 13: BOARD OF VETERANS' APPEALS
13.1 GENERAL INFORMATION ABOUT THE BVA
13.2 OVERVIEW OF THE BVA APPEALS PROCESS
13.3 BVA PROCEDURES WHEN NO BVA HEARING IS REQUESTED
13.4 REQUESTING AND SCHEDULING A BVA HEARING
13.5 HOW BVA HEARINGS ARE CONDUCTED
13.6 SUBMITTING EVIDENCE DURING AND AFTER A BVA HEARING
13.7 TRANSFER OF THE VA CLAIMS FILE FROM THE REGIONAL OFFICE TO THE BVA
13.8 BVA ACTIONS TO READY AN APPEAL FOR DECISION
13.9 BVA DECISION MAKING PROCESS
13.10 BVA REMANDS
APPENDICES

Chapter 14: COMMON ERRORS IN FINAL VA DECISIONS DENYING BENEFITS AND THE AVENUES AVAILABLE TO CORRECT THEM
14.1 THE INITIAL FACTORS THAT MUST BE CONSIDERED IN DECIDING WHICH OPTION(S) TO PURSUE AFTER A FINAL BVA DENIAL
14.2 SUBMITTING TO AN RO A REOPENED CLAIM FOR THE SAME BENEFITS
14.3 SUBMITTING TO THE BVA A MOTION FOR RECONSIDERATION OF, OR TO VACATE, A BVA DECISION
14.4 SUBMITTING TO THE BVA A MOTION TO REVISE A FINAL BVA DECISION BASED ON CLEAR AND UNMISTAKABLE ERROR
14.5 COMMON VA ERRORS THAT CAN BE CORRECTED BY APPEAL TO COURT

Chapter 15: COURT REVIEW OF VA DECISION-MAKING
15.1 INTRODUCTION
15.2 JURISDICTION OF THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
15.3 THE POWER OF THE CAVC AND THE SCOPE OF REVIEW IT APPLIES IN REVIEWING BVA DECISIONS
15.4 ORGANIZATION OF THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
15.5 REPRESENTATION BEFORE THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
15.6 THE RULES OF PRACTICE AND PROCEDURE OF THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
15.7 COMMON ISSUES FACED BY COUNSEL FOR APPELLANTS IN EXPLORING SETTLEMENT WITH THE VA'S OFFICE OF THE GENERAL COUNSEL
15.8 JURISDICTION AND AUTHORITY OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT
15.9 THE REMAINING JURISDICTION OF THE U.S. DISTRICT COURTS
APPENDICES

PART VI: ADVOCACY ON BEHALF OF VA CLAIMANTS

Chapter 16: REVIEWING VA CLAIMS FILES
16.1 INTRODUCTION
16.2 OBTAINING THE VA CLAIMS FILE
16.3 HOW TO REVIEW A VA CLAIMS FILE
16.4 VA MISHANDLING OF CLAIMS FILE DOCUMENTS
APPENDICES

Chapter 17: EFFECTIVE ADVOCACY BEFORE THE VA AND RESEARCHING VETERANS LAW
17.1 INTRODUCTION
17.2 REQUIREMENTS TO REPRESENT A VA CLAIMANT
17.3 THE POWER OF ATTORNEY FORM THAT MUST BE FILED TO BE RECOGNIZED AS A CLAIMANT'S REPRESENTATIVE
17.4 STANDARDS OF PRACTICE FOR REPRESENTATIVES
17.5 GENERAL ADVOCACY GUIDELINES
17.6 OBTAINING EVIDENCE TO SUPPORT A VA CLAIM
17.7 ADVOCACY INVOLVING VA'S DUTY TO NOTIFY
17.8 ADVOCACY INVOLVING VA'S DUTY TO ASSIST
17.9 ADVOCACY INVOLVING CLAIMS TO REOPEN
17.10 ADVOCACY INVOLVING CLAIMS FOR PENSION BENEFITS
17.11 ADVOCACY INVOLVING TOTAL DISABILITY RATINGS BASED ON INDIVIDUAL UNEMPLOYABILITY
17.12 ADVOCACY INVOLVING VA'S DUTY TO MAXIMIZE BENEFITS
17.13 ADVOCACY INVOLVING VA'S FAILURE TO ADJUDICATE A CLAIM
17.14 PREPARING WRITTEN ARGUMENTS IN SUPPORT OF A CLAIM
17.15 PERSONAL HEARINGS AND ORAL ARGUMENT
17.16 RESEARCHING VETERANS LAW
17.17 VA PILOT PROGRAMS
APPENDICES

Chapter 18: OBTAINING MILITARY RECORDS AND INFORMATION TO HELP SUBSTANTIATE A CLAIM
18.1 INTRODUCTION
18.2 THE DUTIES OF VA IN OBTAINING EVIDENCE OUTSIDE OF VA
18.3 NATIONAL PERSONNEL RECORDS CENTER
18.4 THE UNITED STATES ARMY AND JOINT SERVICES RECORDS RESEARCH CENTER (JSRRC)

Chapter 19: ATTORNEY'S AND AGENT'S FEES PAID BY VA CLAIMANTS OR BY THE VA
19.1 HISTORY OF LIMITATIONS ON ATTORNEY'S FEES
19.2 FEES AND EXPENSES PAID BY CLAIMANTS TO ATTORNEYS OR AGENTS FOR REPRESENTATION BEFORE THE RO OR THE BVA
19.3 RULES GOVERNING ATTORNEY'S FEE AGREEMENTS IN PRACTICE BEFORE THE CAVC
19.4 PAYMENT OF FEES BY THE VA DIRECTLY TO ATTORNEYS AND AGENTS BY DEDUCTING THE FEE FROM PAST DUE BENEFITS
19.5 ATTORNEY'S FEES IN HOME LOAN GUARANTY CASES
19.6 THE RELATIONSHIP BETWEEN THE VJRA ATTORNEY'S FEES PROVISIONS AND FEES CHARGED IN CLAIMS BASED ON VA NEGLIGENCE OR MEDICAL MALPRACTICE
19.7 ATTORNEY'S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
APPENDICES

PART VII: CORRECTION OF MILITARY RECORDS

Chapter 20: MILITARY RECORDS CORRECTIONS ISSUES
20.1 INTRODUCTION: BOARDS FOR CORRECTION OF MILITARY RECORDS
20.2 BOARDS FOR CORRECTION OF MILITARY RECORDS: PROCEDURES
20.3 DISABILITY SEPARATION AND RETIREMENT CASES
20.4 ADVERSE INFORMATION ON SEPARATION DOCUMENTS
20.5 APPEALING OLD COURT-MARTIAL CONVICTIONS
APPENDICES

Chapter 21: UPGRADING LESS THAN FULLY HONORABLE DISCHARGES
21.1 INTRODUCTION
21.2 CLASSIFICATION OF DISCHARGES AND GENERAL ELIGIBILITY FOR VA PROGRAMS
21.3 DISCHARGE UPGRADING VERSUS VA ADJUDICATION
21.4 THE DISCHARGE REVIEW PROCESS
APPENDICES

 

National Veterans Legal Services Program

The National Veterans Legal Services Program (NVLSP) is a non-profit law firm that has represented veterans for over 20 years.

Barton F. Stichman

Barton F. Stichman, Joint Executive Director and lead litigator for the National Veterans Legal Services Program, has earned over $1 billion in VA benefits for his clients over the last 30 years.

Ronald B. Abrams

Ronald B. Abrams, is Joint Executive Director of the National Veterans Legal Services Program and a 17-year VA insider. Over the past 15 years, he has trained thousands of veterans advocates.

Meg Bartley

Meg Bartley is Senior Staff Attorney at the National Veterans Legal Services Program and editor of The Veterans Advocate, a veterans law and advocacy journal. She has trained thousands of lawyers and veterans service officers in veterans law.

Louis J. George

Louis J. George is a Senior Litigation Staff Attorney at the National Veterans Legal Services Program, where he represents veterans and their dependents before the U.S. Court of Appeals for Veterans Claims and other courts. He mentors lawyers participating in the Veterans Consortium Pro Bono Program and other pro bono programs, and trains lawyers and veterans service officers in veterans law and advocacy.

 

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