Representing Veterans in Disability Cases

Transcription

1 Vermont Bar Association 60th Mid-Year Meeting Seminar Materials Representing Veterans in Disability Cases March 30-31, 2017 Equinox Resort & Spa Manchester Center, VT Speaker: Katelyn B. Atwood, Esq.

2 Katelyn B. Atwood, Esq. Facey Goss & McPhee, P.C. (802) AMERICAN VETERANS LANDSCAPE: BY THE NUMBERS As of 2016: 21.6 million total veterans in the United States 7.1 million from the Vietnam era, 7.3 million from the Gulf War era 8.97 million veterans enrolled in VA Health Care System 4.26 million veterans receiving disability payments Veteran population is projected to decrease over the next thirty years BUT Percentage of female vets to increase from 10% to 16% by 2043 Percentage of minority vets is projected to increase: African/American: From 11% to over 16% Hispanic: From just under 6% to 12% WHAT IS THIS VA THAT YOU SPEAK OF? Department of Veterans Affairs (VA) is executive agency in charge of veterans benefits, and is comprised of three divisions: - Veterans Health Administration - Veterans Benefits Administration (more to come on this later) - National Cemetery Administration Current Secretary: David Shulkin 1

3 WHAT BENEFITS DOES THE VBA ADMINISTER? - Service Connected Disability Compensation - Non-Service Connected Pension - Dependency and Indemnity Compensation -Death Pension -Health Care - Education Benefits - Vocational Rehabilitation and Training -Burial Benefits -Home Loan - VA Life Insurance Programs -Dependents Benefits WHO IS ELIGIBLE GENERALLY FOR VA BENEFITS? To receive most VA benefits: Must be a veteran which means: ACTIVE military service National Guard/Reserve service members who have never been called up to active federal service are NOT eligible for VA Benefits of any kind Discharged Under Conditions Other Than Dishonorable Minimum length of duty requirements: Not applicable if on duty before September 1980 If enlisted after September month continuous active duty OR the full period that you were called to active duty Exceptions: Service Connected Disability, early out, hardship discharge HOW VA CASES GENERALLY TRAVEL THROUGH THE AGENCY AND THE COURTS Step 1: Get Accredited through Office of General Counsel Step 2: Apply to VA Regional Office for benefits million claims in 2014 Step 3: Decision Review Officer OR go straight to Step 3 Step 4: Board of Veterans Appeals - 43,000 cases in 2014 Step 5: Court of Appeals for Veterans Claims (first step outside of VA) - Around 6,500 cases in 2014 between nine judges Step 5: Court of Appeals for the Federal Circuit Step 6: The Supreme Court of the United States 2

4 SERVICE CONNECTED DISABILITY COMPENSATION - Main feature NOT BASED ON FINANCIAL NEED OR INCOME - Program aims to compensate veterans for a reduction in their earning capacity caused by their military service - Awarded on a percentage basis; 0 to 100% in increments of 10 - Monthly payments - TAX FREE - Not offset by other income - Age does not matter ELIGIBILITY FOR DISABILITY COMPENSATION BASIC ELEMENTS: - Must be a Veteran - A person who has served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 CFR 3.1(d) - Must have a current disability - Must have evidence of an in-service disease, injury, or event - Connection between the Veterans service and disability - Incurred or aggravated in service NOTE: No length of duty requirement for service connected disability APPLYING FOR SERVICE CONNECTED DISABILITY - Intent to File Claim: VA Form Have a year after you file an Intent to File Claim to get your application in -Application for Service Connected Disability: - Apply Online using ebenefits: - Apply on Paper: VA Form EZ - Mail Certified, Return Receipt Requested to: VA Regional Benefits Office, 215 North Main Street, White River Junction, VT Apply via Fax: Evidence Intake Center Fully Developed Claim Be Careful here! - Servicemembers, Veterans, and survivors simply submit all required records and documentation at the time they make their claim and certify that they have no further evidence. VA Website 3

5 NON-SERVICE CONNECTED PENSION - INCOME and AGE MATTERS here - Main Feature: MEANS TESTED BENEFIT - Payments to low-income vets who are age 65 or older OR permanently and totally disabled - ONLY for vets who have served during statutorily prescribed periods of wartime - Gulf War has been going on since August 2, Generally, no dual benefits (no pension and disability at the same time, but there are exceptions if you receive a low service-connected disability payment, etc.) DEPENDENCY AND INDEMNITY COMPENSATION (DIC) - Paid to qualifying survivors of veterans (spouses or kids) - Triggered if veteran s death was service-connected - OR - If the veteran was totally disabled because of a service-related condition at the time of death for a certain amount of time NON-SERVICE CONNECTED DEATH PENSION - Paid to qualifying survivors of veteran (spouses and kids) - Death was non-service connected - Must have served 90 days of active duty (at least one day of 90 must have been during wartime period) - Vet must have been discharged under conditions other than dishonorable - All new claims for death pension fall under Improved Pension Program 4

6 VA HEALTH CARE - Veterans must be ELIGIBLE and ENROLLED to receive health care - Eligibility for Veterans: - Enlisted after 1980, required minimum 24 months of continuous active duty OR full period of time for which they were called up to active duty - Many exceptions to this rule, including service connected disability - Reservists/National Guard are only eligible if they have been called up to active duty VA EDUCATION BENEFITS - Education benefits are plentiful and confusing - Available to surviving dependent children - Vocational Rehab - Not limited to those with honorable discharge - Not limited to recent vets - Post 9/11 GI Bill: - Must use it within 10 years - Tuition and living stipend - Restricted to vets with honorable discharge QUESTIONS? I PROBABLY DON T KNOW EITHER!..but I can do some research. If you encounter a vet who: - has a general civil problem - has been denied VA disability benefits - needs a discharge upgrade, call me! Katelyn Atwood katwood@fgmvt.com 5