It’s the Law November 2008
Monday, November 10th, 2008< center>IT’S THE LAW
by Richard Cohen, Esq.
©2008 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com
September 2008
The “Veterans Benefits Improvement Act of 2008″ which was signed by the President in October contains some important new laws which affect veterans.
You can find the bill at the following link:
http://www.govtrack.us/congress/billtext.xpd?bill=s110-3023
Among the more important changes are the change that allows veterans to challenge the VA’s schedule of ratings in Court. Before this law, if a veteran and his doctor believed that the rating schedule inadequately rated the veteran’s disability they were prohibited from bringing that challenge because the VA’s schedule was protected from attack. Now, for example, an otolaryngologist, an ear doctor, could provide an opinion that the schedule of ratings regarding hearing does not adequately rate hearing loss and that opinion could be used for a Court challenge to the schedule. An important restriction is that the challenge may not be brought in the Veterans Court, the United States Court of Appeals for Veterans Claims. Rather, it may only be brought in the United States Court of Appeals for the Federal Circuit.
Another important change allows a dependent to be able to be substituted for a veteran who dies while his claim is pending before the VA if the veteran dies on or after the enactment of this law. Because this law only applies to claims under 38 U.S. C. § 5121, that is, claims for accrued benefits, a claimant for DIC benefits under 38 U.S.C.§ 1318 claimants for DIC benefits should not rely upon their substitution to satisfy the requirement that the application for DIC benefits must be filed within one year of the veteran’s death.
A change which may contain a trap for veterans is the provision regarding expedited treatment for fully developed claims. Congress was hoping to move cases toward favorable decisions quicker by providing that such claims would be decided within 90 days after a claim is submitted as fully developed. The catch is that for a claim to be in this program the veteran must submit a statement that no further information or evidence is available or needs to be submitted for the claim to be decided. If the veteran signs the statement, thereby waiving all rights to assistance and notification by the VA, and if the claim is actually incomplete, requiring more evidence, the veteran is out of luck. Not only will the veteran lose, but, after the veteran hires a lawyer, the lawyer may be bound by the veteran’s representation that the claim was complete. Although, new and material evidence may always be submitted, the waiver may work against the veteran’s interests
Among the new VA regulations there are three which will have immediate impact on veterans, the PTSD regulation, the TBI regulation and the ALS regulation.
The interim PTSD regulation was reported in the Federal Register on October 29, 2008. You can see it in PDF format at:
It essentially requires the VA raters to follow the existing law by eliminating the requirement of verifying stressors for PTSD if the veteran was diagnosed with PTSD while in service.
The new regulations for rating Traumatic Brain Injury, which is effective for all claims filed on or after October 23, 2008 is too complex to summarize in this column. The full text can be found in PDF format using the link below:
One important provision is that a veteran who was rated under the old rule and Diagnostic Code 8045 can requested re rating under this regulation regardless of whether there was a worsening of symptoms.
The interim rule regarding ALS is effective September 23, 2008.
The full text can be found in PDF format using the link below:
This rule which applies to all claims received after the effective date or pending before the VA or the Court provides a presumption of service connection for all veterans who served on active duty and then were diagnosed with ALS. This is a big deal because there is no need to show any symptoms in service nor any exposure to anything. The only necessary evidence is active duty and then a diagnosis.
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A case from the United States Court of Federal Claims, decided in June concluded that the VA may not reduce a remarried widow’s SBP payments by the amount of DIC benefits she was receiving. The case, Sharp v. the United States, docket 07-547 C can be found on the Court’s web site : http://www.uscfc.uscourts.gov/opinions-decisions-0
An important proviso, the case does not deal with the situation of an un remarried widow.