A publication of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress
December 2000/January 2001
Veterans Benefits Update
VA Acts On New Legislation
By Leonard J. Selfon, Director, Veterans Benefits Program
As reported in the last issue, Congress recently enacted the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA overturned a decade of court decisions concerning the requirement that a claimant for VA benefits submit a well-grounded claim before the VA will develop the evidence surrounding that claim. The VA is in the process of issuing new regulations to implement this important legislation.
Specifically, the VCAA essentially restores the VA’s duty to help with the factual development of a claim for benefits as soon as the claimant files a complete or substantially complete application by notifying the claimant of any information or evidence necessary to substantiate the claim. The VA is then required to make reasonable efforts to help a claimant by securing evidence that the claimant identifies and authorizes the VA to obtain. If obtaining a new medical opinion is necessary for the VA to make a decision on the claim, the VA must provide the claimant with a VA physical or psychiatric examination.
In letters to the VA regional offices around the country, the VA’s Compensation and Pension Service has provided claim-processing guidelines to adjudicators that address changes mandated by the new legislation. In this respect, the VA has acknowledged that "the duty to assist legislation was a clear message from the Congress that they want VA to help veterans develop their claims."
These policies essentially will govern VA benefits claims adjudication until final administrative regulations are issued.
It is important to note that the VCAA allows any claimant whose claim was denied for not being well grounded and had become final (that is, not appealed or denied on appeal) between July 14, 1999 (the date of the Morton decision), and July 9, 2000 (the effective date of the VCAA), to request readjudication if a motion for reconsideration is filed within two years of the effective date of the Act, November 9, 2002. If you have received such a denial within the specified period, please contact your local V.A. service representative to determine if a motion for reconsideration is warranted. In this respect, the VA has announced a policy of readjudicating all claims that its adjudicators discover have satisfied the reconsideration criteria without the claimant having to file a motion.
VA Recognizes Link Between Diabetes & Agent Orange Exposure
Almost a decade ago, Congress passed Public Law 102-4, the Agent Orange Act of 1991, which gave the Secretary of Veterans Affairs the authority to establish presumptive service connection for diseases scientifically demonstrated to be associated with exposure to the chemical defoliant Agent Orange, dioxin, and other herbicides during military service in Vietnam. This means that whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between such exposure and the subsequent onset of a disease, the VA must issue a regulation providing that a presumption of service connection is warranted for that disease.
Currently, nine diseases are presumptively considered to be the result of exposure to herbicidal agents used in Vietnam during the war: chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; acute and subacute peripheral neuropathy; porphyria Ceduna Tara; multiple myeloma; non-Hodgkin’s lymphoma; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain specified soft-tissue sarcomas. Furthermore, exposure to these agents has been shown to be so detrimental that VA health care, vocational training, and a monetary allowance are available for children of Vietnam veterans who suffer from spina bifida.
In April and October 2000, V.A. petitioned the VA to amend its regulations to include adult-onset diabetes mellitus (type II) as a presumptively service-connected disease resulting from exposure to Agent Orange and other herbicides. These petitions were based on government studies and a report by the National Academy of Sciences’
Institute of Medicine (I’M). In its report, the I’M concluded that there is "limited/suggestive evidence" of an association between exposure to herbicides used in Vietnam and adult-onset diabetes type II. Although the I’M did not find a clear link, the level of association found is sufficient to require the VA to add diabetes to the presumptive list. Consequently, the VA on January 11, 2001, published a proposed regulation that allows presumptive service connection for adult-onset diabetes. Awards of service connection in this respect will probably not be retroactive. In other words, a new claim will have to be filed regardless of whether a veteran has been denied service connection for diabetes in the past. The VA estimates that there will be some $3.3 billion in related benefits during the next five years. V.A. is in the process of preparing comments on the proposed regulation, which the VA will consider before it issues a final regulation. We will keep you posted.
Beware Of VA Benefits Scam
Early in January, the VA issued a warning to veterans and their dependents concerning a financial scam that offers a one-time lump-sum payment in exchange for monthly VA disability compensation or pension checks. The direct sale of VA benefits is illegal; so is the VA from paying benefits to anyone other than a veteran, a dependent, or a lawful guardian. This scam attempts to skirt the law by characterizing these
transactions as loans. The perpetrators try to convince veterans to give up their benefits checks for a specified period in exchange for a lump-sum payment that represents 30 to 40 cents on the dollar.
Veterans are sometimes told that they must take out a life insurance policy that names the perpetrator as a beneficiary. If you are approached with such a scheme, please report the occurrence to the VA Inspector General at 1-800-827-1000.
E-mail us at TheVeteran@vva.org