The United States Congress created a totally and completely unique veterans’ benefits system. Under the veterans’ benefits system a veteran, a veteran’s dependents or a veteran’s survivors are required only to submit a “plausible claim” for an entitlement to VA benefits. Once a plausible claim has been submitted, the burden to fully and completely develop evidence to support that claim is by federal law upon the Department of Veterans Affairs. 

ENTITLEMENT TO A DECISION

A claim must be in writing. A claim may be submitted at any one of 58 Regional Offices of the Department of Veterans Affairs. Every state in the United States has at least one Regional Office. There are also Regional Offices in Puerto Rico and the Philippines. There is also an office in Washington, D.C. for those individuals who live outside of the United States.

Once a claim has been submitted to a Regional Office, the Regional Office is required to render a decision. The decision should only be made after a fully and sympathetically developed consideration of the evidence. The veteran will receive a written notice of the decision of the Regional Office. This notification of action will only inform the veteran that the claim has been granted or denied.  

NOTICE OF DISAGREEMENT REQUIREMENT

In the event that a veteran desires to appeal the denial of benefits, a Notice of Disagreement is required to be submitted by the veteran to the Regional Office. There is no required form for a Notice of Disagreement. The Notice of Disagreement must simply express disagreement with the denial of benefits. Upon receipt of a Notice of Disagreement the Regional Office must prepare a Statement of the Case.  

STATEMENT OF THE CASE

A Statement of the Case is required by law to explain to the veteran the reason for the denial of benefits. The Statement of Case should also provide notice to the veteran of the pertinent or controlling statutes and/or regulations relied upon by the Agency to support the decision to deny benefits. The Statement of the Case will inform the veteran that in order to perfect an appeal of a denial of benefits, the veteran must execute and submit a VA Form 9. This Form will be included in the mailing from the Regional Office with the Statement of the Case. 

 PERFECTING THE APPEAL

In order to perfect an appeal for review of a denial of benefits by a Regional Office, the veteran must not only file a Notice of Disagreement, but must timely file a VA Form 9. This is a two-step appeal process; completing the first step and omitting the second step will not result in a perfected appeal. The VA Form 9 must be filed either within 60 days of the receipt of the Statement of the Case, or within one year of the Notice of Action by the Regional Office denying the claim, whichever is later. 

ACTIONS BY THE BOARD OF VETERANS APPEALS

Once a veteran has perfected an appeal, the claims folder is transferred to the Board of Veterans’ Appeals in Washington, D.C. The BVA is the final administrative process before going to Court. The Board may take anyone of four different actions in a veteran’s appeal. The Board may affirm the decision of the Regional Office. This would be an adverse decision to the veteran and would allow the veteran to appeal to the Court. The Board may reverse a decision of the Regional Office and grant the benefits sought by the veteran. In this circumstance, the decision would be favorable and there would be no basis for an appeal to Court. The third option is for the Board to remand the case for further development to the Agency of Original Jurisdiction, the Regional Office. A remand is not an adverse decision. A remand merely continues the administrative appeal by returning a case to the Agency for further proceedings.

Once the Regional Office receives a remand, the Regional Office is required to complete the instructions or directions for further development provided by the Board. The length of time this process takes is dependent on the nature of the remand instructions. In the event that the Regional Office confirms the prior denial, the Regional Office will issue a Supplemental Statement of the Case. Following the receipt of a Supplemental Statement of the Case, the veteran’s claims folder should be returned to the Board to complete appellate review. Upon return to the Board, the Board still has all four options available as though this was an original appeal.

The final option for the Board is what is called a referral. A case is referred back to the Agency when the Board feels that an issue or a claim which should have been developed was not, and the Board directs the Regional Office to decide that issue and give the veteran notice of that decision. In this circumstance, the veteran is required to file a Notice of Disagreement with such ratings action. Another circumstance in which a referral would be appropriate is when the Board failed to include in the Statement of Case a claim or issue raised by the veteran in the Notice of Disagreement. In such a situation, a referral back to the Agency of Original Jurisdiction would be issued directing the Regional Office to issue a Statement of the Case on the omitted claim or issue. 

JUDICIAL REVIEW

A veteran has 120 days from the date stamped on the adverse BVA decision to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. A Notice of Appeal which is filed after 120 days will be accepted by the Court but will be ultimately challenged by the VA’s General Counsel, and in all likelihood the appeal will be dismissed due to the untimely filing of the Notice of Appeal. 

RECONSIDERATION OF THE BOARD OF VETERANS’ APPEALS DECISION

VA regulations provide that a veteran at anytime may ask or seek Reconsideration by the Board of Veterans’ Appeals of any prior adverse decision. In the context of a current decision, if the veteran files a Motion for Reconsideration within 120 days of the adverse decision, then the time for filing a Notice of Appeal to Court has been tolled. Tolled means it is stopped or suspended. The time for filing a Notice of Appeal when a Motion for Reconsideration has been filed within 120 days of an adverse Board decision suspends the time for filing a Notice of Appeal in Court until the Board has acted on the Motion for Reconsideration. Upon receipt of the decision on the Motion for Reconsideration, the date file-stamped on the Board’s letter denying the Motion restarts the 120 day time period. This means a veteran has 120 days after a decision denying a Motion for Reconsideration to file an appeal with the Court.

Although there is no time limit for filing a Motion for Reconsideration, any Motion for Reconsideration filed after 120 days, while it will be accepted and decided by the Board, DOES NOT toll the time for filing a Notice of Appeal. This is a common mistake and misunderstanding which many pro se veterans make. The BVA’s Notice of Appellate Rights is somewhat confusing and misleading in this regard. A veteran should consult with a competent veterans law practitioner after receiving any decision from the Board of Veterans’ Appeals.

If you have any questions on Veteran’s Disability Claims; please call, Send an Email or please mail us today at:

Contact us at:  
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And we are… in a big way. Over the next three years, we are committing $30 million to veterans’ housing issues. Read the press release. We’re starting by supporting three great organizations: Fisher House Foundation, Volunteers of America and The Mission Continues. Fisher House Foundation provides a home-away-from-home for families staying near their loved ones who are recovering in a military or VA hospital; Volunteers of America provides housing and job training to prevent homelessness among veterans and their families; and The Mission Continues provides veterans with a way to be citizen leaders in their local communities. You can read more about each organization on our website.

But we’re not just writing a check. That grant money will stretch even further for each nonprofit organization, because associates from The Home Depot will volunteer their time and home improvement know-how skills to projects across the country. Whether it’s installing wheelchair ramps for disabled veterans or landscaping an apartment building for formerly homeless veterans, our associates will be leading the charge to serve those who have given so much for their country.

WASHINGTON (March 18, 2010) – Secretary of Veterans Affairs Eric K. Shinseki today announced the Department of Veterans Affairs (VA) is taking steps to make it easier for Veterans to obtain disability compensation for certain diseases associated with service in the Persian Gulf War or Afghanistan. This will be the beginning of historic change for how VA considers Gulf War Veterans’ illnesses.

 Following recommendations made by VA’s Gulf War Veterans Illnesses Task Force, VA is publishing a proposed regulation in the Federal Register that will establish new presumptions of service connection for nine specific infectious diseases associated with military service in Southwest Asia during the Persian Gulf War, or in Afghanistan on or after September 19, 2001.

“We recognize the frustrations that many Gulf War and Afghanistan Veterans and their families experience on a daily basis as they look for answers to health questions, and seek benefits from VA,” said Secretary Shinseki.

The proposed rule includes information about the long-term health effects potentially associated with the nine diseases: Brucellosis, Campylobacter jejuni, Coxiella burnetii (Q fever), malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis and West Nile virus.

 For non-presumptive conditions, a Veteran is required to provide medical evidence that can be used to establish an actual connection between military service in Southwest Asia or in Afghanistan, and a specific disease.

With the proposed rule, a Veteran will only have to show service in Southwest Asia or Afghanistan, and a current diagnosis of one of the nine diseases.

Comments on the proposed rule will be accepted over the next 60 days. A final regulation will be published after consideration of all comments received.

The decision was made after reviewing the 2006 report of the National Academy of Sciences (NAS), titled, “Gulf War and Health Volume 5: Infectious Diseases.”

The 2006 report differed from the four prior reports by looking at the long-term health effects of certain diseases determined to be pertinent to Gulf War Veterans.   The 1998 Persian Gulf War Veterans Act requires the Secretary to review NAS reports that study scientific information and possible associations between illnesses and exposure to toxic agents by Veterans who served in the Persian Gulf War.  Because the Persian Gulf War has not officially been declared ended, Veterans serving in Operation Iraqi Freedom are eligible for VA’s new presumptions. Secretary Shinseki decided to include Afghanistan Veterans in these presumptions because NAS found that the nine diseases are prevalent in that country.

 Noting that today’s proposed regulation reflects a significant determination of a positive association between service in the Persian Gulf War and certain diseases, Secretary Shinseki added, “By setting up scientifically-based presumptive service connection, we give these deserving Veterans a simple way to get the benefits they have earned in service to our country.”

 Last year, VA received more than one million claims for disability compensation and pension. VA provides compensation and pension benefits to over 3.8 million Veterans and beneficiaries. Presently, the basic monthly rate of compensation ranges from $123 to $2,673 to Veterans without any dependents.

 Disability compensation is a non-taxable, monthly monetary benefit paid to Veterans who are disabled as a result of an injury or illness that was incurred or aggravated during active military service.

 For more information about health problems associated with military service during operations Desert Shield, Desert Storm, Iraqi Freedom and Enduring Freedom and related VA programs go to www.publichealth.va.gov/exposures/gulfwar/ or go to www.va.gov for information about disability compensation.
 

James D. “Standing Horse” Cates,MSgt/USAF Retired
Chairman, National Native American Veterans Association

Only two defining forces have ever offered to die for you; Jesus Christ and the American GI.

One died for your soul; the other for your freedom.

Washington, D.C. – The Defense Department’s (DoD) failure to comply with the law in releasing records that show it has blocked disabled veterans from receiving disability compensation and other benefits, earned as a result of service to our nation has prompted Vietnam Veterans of America (VVA) and VVA Chapter 120 in Hartford, Connecticut, to file a federal Freedom of Information Act (FOIA) lawsuit.

The complaint, filed today at the U.S. District Court in New Haven by the Veterans Legal Services Clinic of the Jerome N. Frank Legal Services Organization at Yale Law School, charges that, since the beginning of the Global War on Terrorism, DoD has systematically discharged nearly 26,000 veterans, wrongfully classified as suffering from Personality Disorder, a characterization that renders the service member ineligible for receiving rightful benefits. Personality Disorder is a disability that begins in adolescence or early adulthood and can present with symptoms which may mimic Post-traumatic Stress Disorder (PTSD).

“DoD’s Personality Disorder designation prevents thousands of wounded veterans from accessing service-connected disability compensation or health care,” said VVA National President John Rowan.

In 2007, the Veterans Affairs Committee in the U.S. House of Representatives charged DoD with deliberately misusing personality disorder diagnoses in order to reduce to the cost of health care and disability compensation by at least $12.5 billion. Since then, DoD has dramatically decreased the number of soldiers it has discharged on the basis of Personality Disorder. After discharging an average of 3,750 service members per year for Personality Disorder between 2001 and 2007, DoD has discharged only 960 service members in 2008; 1,426 in 2009; and 650 to date in 2010. However, rather than repairing the harm it has caused to the veterans it misdiagnosed, DoD is refusing to admit that veterans were inappropriately discharged with Personality Disorder before 2008.

“While DoD protects its reputation and its pocketbook, veterans with Post-traumatic Stress Disorder and Traumatic Brain Injury continue to be denied the benefits and medical care they are due,” said Dr. Thomas Berger, Executive Director of VVA’s Veterans Health Council. Since 2007, VVA has publically criticized DoD’s systematic misuse of Personality Disorder discharges, in correspondence to DoD Secretary Gates and in testimony before the House Veterans Affairs Committee, with the intent of curbing the wrongful discharge practice and assisting those wrongfully discharged veterans in receiving the benefits to which they are entitled.

“If DoD truly believes that all Personality Disorder discharges were lawful, why does it refuse to provide records responsive to VVA’s Freedom of Information Act request?” asked Melissa Ader, a law student intern in the Jerome N. Frank Legal Services Organization at Yale Law School, which is counsel in the case. “We hope that this lawsuit will allow the public to assess for itself whether DoD has treated veterans unjustly.”

David Charles Dolby (May 14, 1946 – August 6, 2010) was a United States Army soldier who received the U.S. military’s highest decoration, the Medal of Honor, for his actions in the Vietnam War.

Dolby was born on May 14, 1946, in Norristown, Pennsylvania.[1] His father, Charles L. Dolby, was a personnel manager for B.F. Goodrich Company in Oaks, Pennsylvania. He had a younger brother, Daniel. [2] 

Dolby joined the Army from Philadelphia and by May 21, 1966, was serving in the Republic of Vietnam as a specialist four with Company B, 1st Battalion (Airborne), 8th Cavalry Regiment, 1st Cavalry Division (Airmobile). On that day, his platoon came under heavy fire which killed six soldiers and wounded a number of others, including the platoon leader. Throughout the ensuing four-hour battle, Dolby led his platoon in its defense, organized the extraction of the wounded, and directed artillery fire despite close-range attacks from enemy snipers and automatic weapons. He single-handedly attacked the hostile positions and silenced three machine guns, allowing a friendly force to execute a flank attack. [1] 

Dolby was subsequently promoted to sergeant and awarded the Medal of Honor for his actions during the battle.[1] The medal was formally presented to him by President Lyndon B. Johnson on September 28, 1967.[3] 

In addition to the 1965–66 tour in which he earned the Medal of Honor, Dolby was deployed four more times to Vietnam. In 1967 he served there with the 101st Airborne Division, in 1969 with the 75th Ranger Regiment, 173rd Airborne Brigade, in 1970 as an advisor to the Vietnamese Rangers, and in 1971 as an advisor to the Royal Cambodian Army. [4] 

Dolby died at age 64 on the morning of August 6, 2010, while visiting Spirit Lake, Idaho, for a veterans’ gathering. The cause of death has not been announced, and funeral arrangements at Arlington National Cemetery are pending. His brother, Dan, stated that Dolby died in his sleep.

Chairman Akaka posts information on committee website to help veterans and advocates 

WASHINGTON, D.C. – Following oversight requests from Senate Veterans’ Affairs Committee Chairman Daniel K. Akaka (D-Hawaii), the Department of Veterans Affairs has agreed to review the cases of nearly 17,000 “Brown Water” and other Vietnam Era veterans who claimed disabilities related to Agent Orange.  VA had previously denied a number of claims without properly determining whether veterans served in Vietnam’s inland waterways (“Brown Water”) or otherwise served in locations where veterans may have been exposed to herbicides, such as Agent Orange. 

“I commend VA for responding to data showing that many Navy vessels thought to have stayed at sea actually traveled into the inland waters of Vietnam.  As a result, veterans who served on these vessels are eligible for the same benefits as Vietnam veterans who served on land.  I urge veterans and advocates to visit the Senate Veterans’ Affairs Committee website to determine if evidence of ships in inland waters or service on the perimeter of Air Force bases in Thailand entitles them or someone they know to health care and benefits,” said Senator Akaka. 

Akaka successfully urged VA to reconsider cases in which claims by Vietnam veterans potentially exposed to Agent Orange were denied without obtaining relevant military records, such as deck logs.  These claims had been held in abeyance by VA while litigation was pending concerning so-called “Blue Water” veterans and their exposure to Agent Orange and other herbicides, and were subsequently denied.  Akaka discovered that many of these veterans actually served in so-called “Brown Water” or inland waters of Vietnam, and should have received the same presumption of service-connection as veterans who had “boots on the ground” in Vietnam.  By law, VA presumes that veterans who served in inland waterways were exposed to Agent Orange or other herbicides.  Any of those veterans who suffer from certain diseases, and their survivors, may qualify for monetary benefits and health care. 

With this review, certain veterans who were previously considered “Blue Water” veterans will have their claims re-evaluated for evidence of “Brown Water” service, or evidence of service in other locations where VA acknowledges that herbicides may have been used, such as the perimeter of Air Force bases in Thailand.

The Senate Veterans’ Affairs Committee website provides a list of the ships VA has acknowledged traveled in inland waters, as well as evidence about other ships that the committee has received.  A list of the ships identified to have traveled in Vietnam’s inland waters by VA is available here: LINK 

Akaka’s committee staff has compiled an additional list of ships with evidence or suggestion of service in Vietnam’s inland waters.  That list is available here: LINK 

For a list of the conditions Vietnam veterans are presumed exposed to, please click here: LINK 

 In addition, monetary benefits and care are provided to Vietnam veterans’ offspring with spina bifida, and to children of women veterans who served in Vietnam who have birth defects (more information here: LINK).

Now and then, I get an e-mail from a disabled veteran asking if disability pay is considered marital property that can be divided in divorce proceedings.

The short answer is no. Under federal law, tax-free disability is not marital property.

But as many retirees know, and as many new retirees quickly come to learn, regular military retirement pay is subject to division as marital property under the Uniformed Services Former Spouse Protection Act of 1982.

The USFSPA was intended to provide financial protection for certain former spouses of military retirees whose marriages ended in divorce.

When it was proposed, the legislation was strongly opposed by the executive branch, Civil Service Commission, the then-General Accounting Office, and most military associations and veterans organizations.

The opposition was based on a 1981 U.S. Supreme Court decision that said military retirement pay is “the personal entitlement of the retiree,” and applying community property principles to retirement pay “threatens grave harm to … federal interests.” Several attempts have been made to revise the law. In 1998, Congress asked the Defense Department to study the issues and provide recommended changes.

Defense officials maintained an essentially neutral position and seemed to counterbalance recommended changes benefiting service members with similar changes to benefit former spouses. In the end, nothing changed.

Veterans groups maintain that the USFSPA is unlawful because military retirement pay is not a traditional pension, but rather “retainer pay” since military retirees remains subject to recall to federal service.

The courts have not seen it that way. In 2006, several veterans’ organizations and individuals filed suit in federal court to challenge the law, but lost.

The workings of the law are complex and explaining them would take a lot more space than I have here. But it’s in the interest of retirees, and soon-to-be retirees, to be aware of the law and its implications.

The USFSPA Liberation Support Group continues to press Congress on this issue, and its website, www.ulsg.org, has quite a bit of background on the law.

The Defense Finance and Accounting Service also have information, including a fact sheet and a “frequently asked questions” link, at www.dfas.mil/ garnishment/military.html.

Bipartisan Group Will Work to Support Military Families

Washington, D.C. – U.S. Senators Richard Burr (R-NC) and Barbara Boxer (D-CA), along with 18 colleagues, today announced the formation of the Senate Military Family Caucus – a bipartisan group that will focus on issues facing the families of active and veteran service men and women. 

“The families of America’s men and women in uniform are the backbone of our military,” Senator Burr said.  “They often sacrifice of themselves to offer the support and motivation our service members need to accomplish their mission, all while living with the reality that their loved one may be in harm’s way.  There is a lot we can do for these families to ease their burden.  The Senate Military Family caucus signifies that we, as a group of Senators, recognize a need to support military families and provides an avenue to push for legislation that will benefit these families.”

“We recognize that when a service member puts on a uniform, the entire family sacrifices for our country,” said Senator Boxer. “The Senate Military Family Caucus will put a spotlight on issues affecting our men and women in uniform and their spouses and children. Working together, we will continue to address the unique challenges military families face with childcare, education, multiple deployments, spousal employment and more.”

The Senate Military Family Caucus will work closely with the recently formed House Congressional Military Family Caucus to improve programs and services for military families, and to focus on the unique and growing challenges they face. The Caucus aims to substantively address issues including childcare, education, employment, health care and the effects of multiple deployments on the mental health and well-being of spouses, caregivers and children.

Along with Co-Chairs Burr and Boxer, the founding members of the Senate Military Family Caucus are Senators Daniel K. Akaka (D-HI), Max Baucus (D-MT), Mark Begich (D-AK), Michael F. Bennet (D-CO), Scott Brown (R-MA), Roland W. Burris (D-IL), Robert P. Casey Jr. (D-PA), Kay R. Hagan (D-NC), Kay Bailey Hutchison (R-TX), Johnny Isakson (R-GA), John F. Kerry (D-MA), Amy Klobuchar (D-MN), Frank R. Lautenberg (D-NJ), Joe Lieberman (ID-CT), Patty Murray (D-WA), Ben Nelson (D-NE), Bernie Sanders (I-VT) and Jeanne Shaheen (D-NH).

Quick Facts:

This new rule is for Veterans of any era. 

The new rule will apply to claims:

 -  Received by VA on or after July 13, 2010;

 -  Received before July 13, 2010 but not yet decided by a VA regional office;

 -  Appealed to the Board of Veterans’ Appeals on or after July 13, 2010;

 -  Appealed to the Board before July 13, 2010, but not yet decided by the Board; and

 -  Pending before VA on or after July 13, 2010, because the Court of Appeals for   Veterans Claims vacated a Board decision and remanded for re-adjudication.  

QUESTIONS AND ANSWERS

“Stressor Determinations for Posttraumatic Stress Disorder”

1. What is Post-Traumatic Stress Disorder (PTSD)?  

Post Traumatic Stress Disorder (PTSD) is a condition resulting from exposure to direct or indirect threat of death, serious injury or a physical threat. The events that can cause PTSD are called “stressors” and may include natural disasters, accidents or deliberate man-made events/disasters, including war. Symptoms of PTSD can include recurrent thoughts of a traumatic event, reduced involvement in work or outside interests, emotional numbing, hyper-alertness, anxiety and irritability. The disorder can be more severe and longer lasting when the stress is human initiated action (example: war, rape, terrorism). 

2. What does this final regulation do? 

This final regulation liberalizes the evidentiary standard for Veterans claiming service connection for post traumatic stress disorder (PTSD). Under current regulations governing PTSD claims, unless the Veteran is a combat Veteran, VA adjudicators are typically required to undertake extensive record development to corroborate whether a Veteran actually experienced the claimed in-service stressor. This final rulemaking will simplify and improve the PTSD claims adjudication process by eliminating this time-consuming requirement where the claimed stressor is related to “fear of hostile military or terrorist activity,” is consistent with the places, types, and circumstances of their service, and a VA psychiatrist or psychologist, or contract psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD. 

3. What types of claims for VA benefits does the final regulation affect? 

The final regulation will benefit Veterans, regardless of their period of service. It applies to claims for PTSD service connection filed on or after the final regulation’s effective date, and to those claims that are considered on the merits at a VA Regional Office or the Board of Veterans’ Appeals on or after the effective date of the rule.  

4. Why is this final regulation necessary? 

The final regulation is necessary to make VA’s adjudication of PTSD claims both more timely and consistent with the current medical science. 

5. How does this final regulation help Veterans? 

The final regulation will simplify and streamline the processing of PTSD claims, which will result in Veterans receiving more timely decisions. A Veteran will be able to establish the occurrence of an in-service stressor through his or her own testimony provided that:  

(1) The Veteran is diagnosed with PTSD;

(2) A VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis;

(3) The Veteran’s symptoms are related to the claimed stressor; and

(4) The claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary. 

This will eliminate the requirement for VA to search for records, to verify stressor accounts, which is often a very involved and protracted process. As a result, the time required to adjudicate a PTSD compensation claim in accordance with the law will be significantly reduced. 

5. How does VA plan to monitor the need for examiners in various regions of the country, and how does VA plan to respond if is determined that more examiners are needed in a particular region?

The Veterans Health Administration (VHA) has written in to the FY11-13 Operating Plan the need for additional staff to support doing adequate, timely exams. VHA proposes: “A8. Increase mental health field staff to address the increase in C&P examinations and develop monitoring system to ensure clinical delivery of mental health services does not decrease in VHA.“ Specifically, VHA has requested 125 clinicians for FY11 with additional 63 staff in FY12 if the need exists. If the Operating Plan and the proposed budget are approved, VA proposes asking the Veterans Integrated Service Networks (VISNs) to develop plans for distributing the funds in order to ensure adequate coverage at sites based on number of claims being processed; the VISNs are well positioned to determine these regional needs. 

6. How does the regulatory revision affect PTSD service connection claims where an in-service diagnosis of PTSD has been rendered?

The new regulation does not apply to the adjudication of cases where PTSD has been initially diagnosed in service. Rather, under another VA rule, 38 CFR § 3.304(f)(1), if a Veteran is diagnosed with posttraumatic stress disorder during service and the claimed 3 stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 

7. Is the new regulation applicable only if the Veteran’s statements relate to combat or POW service?

No. The rule states that the stressor must be related to a “fear of hostile military or terrorist activity,” and the claimed stressor must be “consistent with the places, types, and circumstances of the veteran’s service.” 

8. What circumstances will still require stressor verification through Odd’s Joint Services Records Research Center (JSRRC), VBA’s Compensation &Pension Service (C&P Service), or other entity if a Veteran claims that his or her stressor is related to a fear of hostile or terrorist activity?

The regulatory revision will greatly lessen the need for undertaking development to verify Veterans’ accounts of in-service stressors. Now, stressor development may only need to be conducted if a review of the available record, such as the Veteran’s service personnel and/or treatment records, is inadequate to determine that the claimed stressor is “consistent with the places, types and circumstances of the veteran’s service.” In such circumstances, the Veterans Service Representative (VSR) will determine on a case-by-case basis what development should be undertaken.

However, it is anticipated that in the overwhelming majority of cases adjudicated under the new version of § 3.304(f), a simple review of the Veteran’s service treatment and/or personnel records will be sufficient to determine if the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. We also believe that, in some cases, a Veteran’s separation document, DD-Form 214, alone may enable an adjudicator to make such a determination. 

9. As the regulatory revision seems to require an enhanced role for the examining VA mental health professional, whose role is it to determine whether the claimed stressor is consistent with the Veteran’s service?

VA adjudicators, not the examining psychiatrist or psychologist, will decide whether the claimed stressor is consistent with the Veteran’s service.

10. Is a Veteran’s testimony about “fear of hostile military or terrorist activity” alone sufficient to establish a stressor?

Yes, if the other requirements of the regulation are satisfied, i.e., a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran’s symptoms are related to the claimed stressor and the stressor is consistent with the “places, types, and circumstances of the Veteran’s service.”

11. Are the stressors accepted as adequate for establishing service connection under new § 3.304(f)(3) limited to those specifically identified in the new regulation?

No. The examples given in the revised regulation do not represent an exclusive list in view of the use of the modifying phrase “such as” that precedes the listed examples.  Any 4 event or circumstance that involves actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, would qualify as a stressor under new § 3.304(f)(3).  

12. How will the Veterans Health Administration (VHA) work with Veterans Benefits Administration (VBA) on the new regulation?

VHA was actively involved in discussion with VBA of the new regulation and fully supports the new regulation.

The new regulation will provide fair evaluation for Veterans whose military records have been damaged or destroyed, or for who no definitive reports of combat action appeared in their military records, even though they can report such actions and it is reasonable to believe that these occurred, given the time and place of service.

This will be especially beneficial to women Veterans, whose records do not specify that they had combat assignments, even though their roles in the military placed them at risk of hostile military or terrorist activity.

This means that more Veterans will become eligible for VA care and thus be able to receive VA care for mental illness related to their military service, as well as receiving full holistic health care.VHA will work actively with VBA on implementing the regulation. VHA staff’s main role is as clinicians conducting C&P interviews to establish diagnoses and obtain other information to be used by VBA raters to determine the outcome of claims.

The new regulation will not change the diagnostic elements of the C&P interview, but may change what additional data are collected for use by VBA raters.

The fiscal 2011 Defense authorization bill, which the House Armed Services Committee approved late Wednesday, would expand several military health programs, including TRICARE.

For the most part, the new health care reform law does not affect TRICARE, but the committee voted to include language in the fiscal 2011 Defense authorization bill that allows TRICARE beneficiaries to extend coverage to their dependent children until age 26.

“Because TRICARE is already such a good program, it already would have met all of the minimum requirements of health care reform,” the committee summary of the bill stated. “However, congressional leadership made and kept a promise to ensure that TRICARE was not impacted in any way by the health reform bill. Unfortunately, this means that TRICARE beneficiaries are not currently able to extend health coverage to their adult dependent children up to age 26 like the rest of the country.”

The authorization bill also includes provisions aimed at ensuring military personnel have access to robust mental health benefits. The committee’s detailed summary of the bill states that lawmakers remain concerned about the lack of qualified health care professionals, particularly mental health providers, available to treat service members.

As it stands now, the bill would require the military services to increase their authorized mental health providers by 25 percent and to offer more scholarships under the Health Professions Scholarship and Financial Assistance Program.

It also would allow program participants to receive payments from the Active-Duty Health Professions Loan Repayment Program to encourage students to pursue military careers.

The military faces the dual challenge of more efficiently providing benefits to service members, their families and retirees, while also controlling the expanding cost of health care without resorting to excessive fee increases. The authorization bill would attempt to reconcile those challenges by creating a Unified Medical Command, modeled after the Special Operations Command, which coordinates special operations across the military services.

“The Unified Medical Command would remove many of the challenges in place under the current structure that are caused by disconnect between requirements determination, performed by the services, and resource allocation, currently controlled by the assistant secretary of Defense for health affairs,” the committee statement noted. “The Military Health System has an organizational structure unlike any other in the Department of Defense, and given its demonstrated shortcomings, the committee believes that it is time to move toward a proven command structure.”

The health care-related provisions were among the least controversial in the legislation, and both Republican and Democratic members of the committee said the bill makes a strong statement of support for service members.

“Our military personnel are the heart and soul of our national security, and this bill makes sure that our troops and their loved ones are receiving the first class benefits that they deserve,” Skelton said.

“For the brave men and women who have served our nation, this bill enhances the benefits and services available to them and their families,” said Rep. Mary Fallin, R-Okla.

 Pointman Law Group.  The Offices of Eric B. Bauer Esquire