I. VA DISABILITY
A. Current Crisis.
1. Disability Claims.
Over the past several years, the VA has experienced a steady increase in workload - in claims receipts, claims complexity, and more direct contact with increasing numbers of veterans. For example, disability claims from returning war veterans, as well as from veterans of earlier periods, increased by 33 percent from 2000 to 2004. According to Rep. John Hall, Chairman of the Veterans Affairs Subcommittee on Disability and Memorial Affairs, the VA currently has a backlog of 650,000 pending claims and another 147,000 that are under appeal.
To complicate the problem further, most of these claims were filed by veterans from previous wars (a claim or appeal can be filed years after discharge from service). With veterans returning from Iraq and Afghanistan this backlog is likely to increase. Harvard public-finance professor and former Clinton administration Commerce Department official Linda Blimes released a 34-page study in February 2007 on the long-term cost of caring for veterans from the wars in Iraq and Afghanistan and in it she estimates that more than 700,000 veterans will flood the system in coming years.
Additionally, a recent article in the VFW's magazine indicated that PTSD claims are on the rise from pre Iraq/Afghanistan veterans as a direct results of repressed memories being stirred up by images from Iraq/Afghanistan.
After the recent publicity stemming from the incident at the Walter Reed VA Hospital attempts are under way by Congress to overhaul the entire VA system including disability claims. The various proposals run the gambit of extremes and it would be premature to predict the ultimate outcome.
2. Homelessness.
Although accurate numbers are nearly impossible to determine due to the transient nature of the people, certain estimates have been gathered that present a startling truth that we have a significant population of homeless veterans in the United States. The VA estimates that nearly 200,000 veterans are homeless on any given night and nearly 400,000 experience homelessness over the course of a year.
Below is a brief glimpse at the statistics on homeless veterans:
Community Homelessness Assessment, Local Education and Networking Groups (CHALENG) for Veterans (2005)
- 195,254 homeless veterans
National Coalition for Homeless Veterans
- 33% homeless men are veterans and only 12.7% of general population are veterans.
- 45% suffer mental illness
- 50% have substance abuse problems
- 67% served 3 or more years
- 33% were stationed in a war zone
- 25% have used VA Homeless Services
- 89% received an honorable discharge
B. CLAIMS PROCESS.
1. Initial Claim.
a. Eligibility.
A veteran, veterans spouse or dependant of a veteran may be entitled to disability benefits if the veteran suffers a service-connected disability resulting from disease or injury incurred in or aggravated during active military, naval, or air service. 38 U.S.C. §101(2); 38 C.F.R. § 3.1(d) .
AFTER SERVICE IS COMPLETE NOT WHILE IN SERVICE.
It is important to note that it is not required that the disease or injury occur in the line of duty (on the job) only the person be in active military service. For active military this means at any time of the day or week. For guardsmen/reservist it means only during the window of time that they are on active duty whether it be for mobilization or training and then only for injuries not for illnesses. 38 U.S.C. § 101; 38 C.F.R. § 3.6.
In all cases, the veteran must have been discharged under other than dishonorable conditions. 38 U.S.C. § 101(2), 38 C.F.R. § 3.1(d) 2006.
Keep in mind that the VA reserves the right to make an independent determination of eligibility and may determine that a veteran is ineligible even though they have discharge documents of other than dishonorable discharge. This is all the more complicated by the fact that there is no such thing as a "dishonorable discharge".
b. Service-Connected Disability.
In order to establish a service-connected disability the veteran must establish that he has a current disability that was precipitated by a disease, injury or event that was service-connected. The disability must result from disease or injury sustained in or aggravated during active duty, active duty for training or inactive duty for training. These terms are defined in 38 U.S.C. § 101. Also, the disability must have occurred in the line of duty and discharge or release must have been under other than dishonorable conditions. The service records of the service-member are generally controlling on the issue of a veterans status.
c. Filing a claim.
A claim for disability benefits is initiated by filing a VA Form 21-526 (See Appendix A). The form can be downloaded at the VA's website at: www.va.gov/vaforms/form_detail.asp?FormNo=21-526.
d. Disability ratings system.
The VA uses a system of Rating Schedules to rate disabilities by assigning a percentage from 0% - 100% for each disabling condition. The more severe or disabling the condition the higher the percentage assessed. The Rating Schedules are found at 38 C.F.R. § 4.
If a veteran has more than one disabling condition the VA uses a Combined Ratings Table (See Appendix B) found at 38 C.F.R. § 4.25 to combine the ratings into a total percentage.
To dollar amount of benefits awarded is determined by the Compensation Rate Table (See Appendix C) and can be found at: www.vba.va.gov/bln/21/rates/comp01. The rates vary depending on whether the veteran is married, has children, and/or dependant parent(s). The base rate for a single veteran is $117 at 10% up to $2,527 at 100%.
II. Uniformed Services Employment and Reemployment Rights Act (USERRA).
A. Introduction
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is found in 38 U.S.C. 4301-4333 and provides employment rights to service members and prohibits workplace discrimination against members of the National Guard and Reserve.
B. Protections.
The protections afforded servicemembers under USERRA include various benefits and entitlements including reemployment rights and benefits and have various time requirements and limits depending on the right or benefit. See Appendix D for a summary of these protections.
C. Employer Support of the Guard and Reserve (ESGR).
Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency established to create and to maintain employer support for members of the National Guard and Reserve. Through its Ombudsman Program ESGR provides information and assistance to servicemembers to help resolve employment related disputes. ESGR is not an enforcement agency and does not provide legal counsel or advice. Contact information: (800) 336-4590, www.esgr.mil.
D. Department of Labor (DOL).
To the extent that an Ombudsmen is not able to resolve the employment dispute the servicemember may contact the U.S. Department of Labor through The Veterans Employment and Training Service (VETS). If VETS informal efforts to resolve the matter are not successful VETS will refer the case to the Office of Special Counsel (OSC) if the employer is a federal agency or the Attorney General (AG) if the employer is a state or local government or private employer. The Department of Labor may be reached at (866) 4-USA-DOL or www.dol.gov. The local Veterans Employment and Training Service office of the Department of Labor in Indianapolis may be reached at (317) 232-6804.
E. Private Counsel.
A servicemember also has the right to private counsel of their own choosing, however, it is at their own expense. Additionally, if a servicemember retains private counsel, even for the limited purpose of making a phone call or writing a letter to the employer, his right to the use of the ESGR and Department of Labor may be compromised. The current position of the Department of Labor is that a servicemember is disqualified from using the DOL if they at any previous point use the assistance of private counsel. 38 U.S.C. 4324(b) (federal employees) and 38 U.S.C. 4323(a)(2) (non-federal employees) permit a servicemember to file suit through private counsel. If the servicemember prevails the employer can be ordered to pay attorney's fees and litigation expenses incurred by the servicemember pursuant to 38 U.S.C. 4324(c)(4) and 38 U.S.C. 4323(c)(2)(B). If the violation is willful an employer may be subject to a double back pay award. 38 U.S.C. 4323(c)(A)(iii) (this does not apply to federal employees). WARNING: Do not take any affirmative action in representation of a servicemember without considering these ramifications.
III. Servicemembers Civil Relief Act (SCRA)
A. Introduction.
The Servicemembers Civil Relief Act of 2003 (SCRA), 50 U.S.C. 501 (formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940, SSCRA) is a federal law that provides servicemembers an assortment of legal protections related to entering active duty. In order to receive protection the servicemember must be able to demonstrate that his military service has had a "material effect on the particular matter." The protection must be asserted during military duty or within 30 to 180 days after service ends depending on the specific type of protection.
B. Six Percent Rule.
Maximum rate of interest on any obligation or liability by servicemember or spouse may not be more than 6% annually during period of active duty service.
C. Lease Termination.
Servicemembers and their spouse and dependants may terminate a residential or automobile lease when called to active duty.
D. Eviction.
Prohibits eviction against a servicemember and dependants while on active duty as long as rent does not exceed $2,615.16 (as of 2006) without court order.
E. Stay of Court/Administrative Proceedings.
A servicemember in service or within 90 days after termination of service may be granted a stay of proceedings for a period of not less than 90 days. Additional stays may be requested and granted.
F. Default Judgment.
A court may on its own motion and shall upon motion by the servicemember stay the execution of any judgment or order against the servicemember and vacate or stay an attachment or garnishment of property, money or debts in possession of the service member.
G. Insurance.
Protects the servicemember from termination of life insurance while on active duty and provides for reinstatement of health insurance upon return from active duty.
H. State Tax.
Prevents states from using income earned by the servicemember in determining the spouse's tax rate when permanent residence is not maintained in that particular state.
I. Notice.
Most of the SCRA protections require that the servicemember provide written notice and a copy of his orders. The best practice is to do this as soon as possible and to send it via certified mail return receipt requested.
IV. RESOURCES.
U.S. Department of Veterans Affairs Regional Office
575 N. Pennsylvania Street
Indianapolis, IN 46204-1581
(800) 827-1000
Indiana Department of Veterans Affairs
302 W. Washington Street, Room E120
Indianapolis, IN 46204-7721
800) 400-4520
www.in.gov/veteran
http://www.vba.va.gov/bln/dom/reports/fy2004/2004_abr.pdf
This is a source for the 2004 Annual Benefits Report of the VBA which reflects a number of important facts about who is receiving benefits, why, where and how much. The last page contains a number of VA and VA related websites. In 2004, the VA was paying $1.75 billion dollars in compensation and pensions to nearly 240,000 claimants.
Board of Veterans Appeals
810 Vermont Ave., N.W.
Washington, DC 20420.
www.va.gov/vbs/bva
This website includes Board decisions and a plain language pamphlet, "
Understanding the Appeal Process".
U.S. Court of Appeals for Veterans Claims
Clerk of the Court
625 Indiana Ave. N.W., Suite 900,
Washington, DC 20004
(202)-501-5970.
www.vetapp.gov
The website contains court decisions, case status information, rules and procedures, and other special announcements.
National Organization of Veterans Advocates (NOVA)
P.O. Box 65876
Washington, DC 20035-5876
www.betadvocates.com
(440) 838-9887
Army Reserve Almanac
P.O. Box 4144
Falls Church, VA 22044-0144
(703) 532-1631
www.militaryalmanac.com
The almanac is a great resource for basic information on benefits including disability benefits that give plain language information and points of contact.
ESGR
(800) 336-4590
www.esgr.mil
Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency established to create and to maintain employer support for members of the National Guard and Reserve. Through its Ombudsman Program ESGR provides information and assistance to servicemembers to help resolve employment related disputes. ESGR is not an enforcement agency and does not provide legal counsel or advice.
Department of Labor
(866) 4-USA-DOL
www.dol.gov
To the extent that an Ombudsmen is not able to resolve the employment dispute the servicemember may contact the Department of Labor which will provide assistance and potential legal assistance through the office of the Attorney General. The local Veterans Employment and Training Service office of the Department of Labor in Indianapolis may be reached at (317) 232-6804.
Veterans Benefits Manual, Barton F. Stichman, Ronald B. Abrams
(800) 446-3410
www.lexisnexis.com
Federal Veterans Laws, Rules and Regulations,
(800) 446-3410
www.lexisnexis.com
Army Judge Advocate General
https://www.jagcnet.army.mil/legal
This website is a great resource for information regarding Guard & Reserve Issues in the Legal Assistance section including the employment related issues involving the Uniformed Services Employment and Reemployment Rights Act (USERRA) and other mobilization issues involving the Servicemembers Civil Relief Act (SCRA).
