South Carolina Lawyer
SC Lawyer, July 2008, #5.
SERVING THOSE WHO SERVED: REPRESENTING VETERANS IN THE VA BENEFITS SYSTEM
South Carolina Lawyer July 2008 SERVING THOSE WHO SERVED: REPRESENTING VETERANS IN THE VA BENEFITS SYSTEM By Rebecca C. Patrick and Douglas J. Rosinski Introduction
Whether you are looking for new professional challenges, a way to "give back" to the community, information that could assist your clients or all three, veterans' benefits law can meet your needs. In 2007, the Department of Veterans Affairs (VA) received 838,141 benefits claims. Examining the U.S. Department of Veterans' Affairs Claims Processing System: Hearing Before the Subcomm. On Disability Assistance and Memorial Affairs of the H. Comm. On Veterans' Affairs, 110th Cong. (Feb. 14, 2008) (statement of Michael Walcott, Deputy Under Secretary for Benefits, Veterans Benefits Administration, U.S. Department of Veterans Affairs), available at www.veterans.house.gov/hearings/Testimony.aspx?TID=18092&Newsid=189&Name=%20Michael%20%20Walcoff. With the veteran populations from the World Wars, Korea and Vietnam becoming more assertive in seeking benefits and the growing number of "new" veterans from Iraq and Afghanistan, that number is expected to grow every year for the foreseeable future.
Yet, veterans remain safely characterized as the most legally underserved community in the country. Although the VA benefits process is sometimes referred to as paternalistic and non-adversarial, the adjudication of VA benefits claims involves application of a myriad of federal statutes, regulations and Byzantine procedures. With the 1988 creation of the Court of Appeals for Veterans Claims (CAVC), veterans now have a right to judicial review of VA decisions. The laws regarding paid representation of veterans have recently been liberalized, but there are still only a handful of attorneys who routinely serve this huge deserving population.
Compensation for injury or other adverse medical condition is the single most common type of VA benefits claim and the one an attorney is most likely to encounter in day-to-day practice. The VA compensation process is designed to "rate" a veteran based on the "average impairment in earning capacity" resulting from events occurring during or as a result of military service. If a condition is determined to be "service-connected" and an entitlement awarded, VA provides the claimant monthly payments and access to other VA benefits based on the "effective date" of the award, which is usually the date the claim was submitted to VA. Each of these steps can present problems to veterans navigating the VA system by themselves.
To be eligible for VA benefits, an individual must be "a person who served in the active military, naval or air services, and who was discharged or released under conditions other than dishonorable." 38 U.S.C. § 101(2)(2000). There is an exception for conditions that are the "result of the person's own willful misconduct or abuse of alcohol or drugs." Id.§ 105(a). Thus, there are three threshold conditions to be eligible for VA benefits: veteran status, character of discharge and a condition not the result of willful misconduct or substance abuse.
Who is a "veteran"?
Many eligible individuals are unaware they are veterans for VA benefits purposes. Contrary to some beliefs, it is not necessary that a service member have been in combat or have retired from the military to be eligible for VA benefits. Although there is some minimal period of service requirements, the vast majority of individuals with active duty service (including training and other "call-ups" of Reserve or Guard) are veterans for VA purposes.
Character of discharge
VA benefits are restricted to individuals discharged or released "under conditions other than dishonorable." § 101(2). The military services each have several categories of discharge, one of which is "dishonorable." Yet, VA has determined that a "bad conduct" discharge, and in some cases an "other than honorable" discharge, are also disqualifying for VA benefits. Typically, VA only considers "honorable" discharges and discharges "under honorable conditions" to be fully qualifying discharges. If an individual received a discharge under other than honorable conditions or a bad conduct discharge from a special court-martial, VA will first make a special "character of service determination" based on the facts in each case. VA then decides whether the individual was separated from service under a qualifying condition or is ineligible for benefits.
Individuals are not eligible for VA benefits for conditions that result from willful misconduct or substance abuse. § 105(a). Willful misconduct includes intentional acts such as self-inflicted injuries to avoid duty or deployment. Health conditions arising from the abuse of illegal drugs or alcohol...