Veteran Benefits

The Department of Veterans Affairs (VA) annually provides care to more than 46,000 elderly and disabled veterans in 132 VA-operated nursing homes, called community living centers (CLC). After media reports surfaced of problems with the care delivered to veterans in CLCs, VA contracted with the Long-Term Care Institute, Inc. (LTCI), a nonprofit organization that surveys nursing homes, to conduct in-depth reviews of CLCs in 2007-2008 and again in 2010-2011. GAO was asked to evaluate VA’s approach to managing veterans’ quality of care and quality of life in CLCs. This report examines (1) VA’s response to and resolution of LTCI-identified deficiencies and (2) information VA collects about the quality of care and quality of life in CLCs and how VA uses it to identify and manage risks. To do this work, GAO interviewed officials from VA headquarters, examined all 116 reviews from 2007-2008 and 67 reviews from 2010-2011. They also analyzed 50 CLCs’ corrective action plans for 2007-2008 and 23 such plans for 2010-2011.

GAO recommends that VA document feedback to CLCs and require periodic status reports about corrective action plan implementation, and implement a process to comprehensively identify and manage risks to residents in CLCs by analyzing and comparing information about residents’ quality of care and quality of life. In its comments on a draft of this report, VA concurred with these recommendations.

The full report can be read at http://www.gao.gov/products/GAO-12-11?source=ra

In a scathing 104-page opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that “the VA’s failure to provide adequate procedures for veterans facing … delays in the delivery of mental health care violates the Due Process Clause of the Fifth Amendment [of the Constitution].” Veterans for Common Sense v. Shinseki, _______ F.3d. ______ , 2011 U.S. App. Lexis 9542 (9^th Cir. 2011)

Plaintiffs, Veterans for Common Sense and Veterans United for Truth (“Veterans”), filed a complaint in the federal district court seeking declaratory and injunctive relief on behalf of all veterans with severe depression or post-traumatic stress disorder (“PTSD”) to remedy the lengthy delays in (1) the provision of mental health care and (2) the adjudication of service-connected death and disability compensation claims by the Department of Veterans Affairs (“VA”). Plaintiffs asked the Court to decide whether the delays and the VA’s lack of procedures to remedy the delays violated the veterans’ due process rights to receive the care and benefits they are guaranteed by statute.

The VA filed a motion to dismiss, which the district court denied. Plaintiffs then moved for a preliminary injunction on their mental health care claims. The district court deferred ruling on the motion for a preliminary injunction and merged the hearing with a trial on the merits. After a seven-day bench trial, the court addressed both Veterans’s mental health care claims and their compensation adjudication claims. Although the district court concluded that Veterans had standing to bring suit on behalf of their members, the court nonetheless denied each of Veterans’s claims, concluding that the remedies sought by Veterans were beyond its power “and would call for a complete overhaul of the VA system, something clearly outside of this Court’s jurisdiction.” The district court granted judgment in favor of the VA. Plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit.

Concerning the delays in the VA’s provision of mental health care, the Ninth Circuit held that the Veterans’s constitutional right to due process was violated. The appellate court went on to reverse the district court’s ruling in that respect, and remand the case for further proceedings. The court found that as of April 2008 at least 85,450 veterans were languishing on waiting lists for mental health care from the VA, and that veterans suffered a much higher suicide rate than found in the general population. On an average day, the court found that 18 veterans take their own lives, and an additional 1,000 veterans attempt suicide each month. As a result, the court concluded as follows:

We have determined that veterans have a towering interest in avoiding delays in their mental health care, the risk of erroneous deprivation is high given the absence of review procedures, the value of additional procedural safeguards would be great, and the government’s interest does not weigh against additional protections. The current delays therefore constitute a deprivation of Veterans’s mental health care without due process, in violation of the Fifth Amendment.

With regard to the delays in the VA’s claims adjudication system, particularly in the claims appeals process, the court found that Veterans’s benefits are a protected property interest under the Fifth Amendment because they are statutorily mandated and nondiscretionary in nature. Having found stark and sobering evidence of inexplicable delays in the benefits adjudication process, the court stated that the due process rights of veterans were violated by the absence of procedures designed to reduce delays in claim appeals. The appeals court remanded the case to the district court with the instruction that, unless the parties resolved this dispute, an order be entered by the court consistent with the opinion.

            The Veterans Benefits Act of 2010, Public Law 111-275, made a few relatively minor changes in veterans’ benefits laws that might be of interest to readers. None of the changes in the law go into effect until October 1, 2011.

1. There will be a cost-of-living increase in dependency and indemnity compensation (DIC) payable to surviving spouses with dependent children under 18.

2. Burial allowance will increase from $300 to $700 for veterans who die while hospitalized by the Department of Veterans Affairs (VA).

3. The VA is authorized to exclude up to $5,000 of income from a state or municipality that is paid to the Veteran due to injury or disease when determining annual income for Veterans pension benefits.

4. The VA’s authority to reduce VA pension benefits to $90 per month for Veterans, surviving spouses, and children with no dependents who reside in nursing facilities and received Medicaid benefits is extended through May 31, 2015. This authority was scheduled to expire on September 30, 2011.

5. Eligible survivors of prisoners-of-war (POWs) who are continuously rated 100% disabled for one year prior to death will be able to file for DIC benefits, regardless of when the POW died (current law states that the POW veteran’s death had to have taken place after September 30, 1999).

6. Retired military veterans or veterans who have separated from active duty due to a catastrophic disability will begin getting compensation benefits from the date of the award, instead of from the first day of the next month after filing.

7. The automobile assistance allowance is increased from $11,000 to $18,900.

WASHINGTON – Veterans exposed to herbicides while serving along the demilitarized zone (DMZ) in Korea will have an easier path to access quality health care and benefits under a Department of Veterans Affairs (VA) final regulation that will expand the dates when illnesses caused by herbicide exposure can be presumed to be related to Agent Orange.

 “VA’s primary mission is to be an advocate for Veterans,” said Secretary of Veterans Affairs Eric K. Shinseki “With this new regulation VA has cleared a path for more Veterans who served in the demilitarized zone in Korea to receive access to our quality health care and disability benefits for exposure to Agent Orange.”

Under the final regulation published today in the Federal Register, VA will presume herbicide exposure for any Veteran who served between April 1, 1968, and Aug. 31, 1971, in a unit determined by VA and the Department of Defense (DoD) to have operated in an area in or near the Korean DMZ in which herbicides were applied. 

Previously, VA recognized that Agent Orange exposure could only be conceded to Veterans who served in certain units along the Korean DMZ between April 1968 and July 1969. 

In practical terms, eligible Veterans who have specific illnesses VA presumes to be associated with herbicide exposure do not have to prove an association between their illness and their military service.  This “presumption” simplifies and speeds up the application process for benefits and ensures that Veterans receive the benefits they deserve.

Click on these links to learn about Veterans' diseases associated with Agent Orange exposure at http://www.publichealth.va.gov/exposures/agentorange/diseases.asp and birth defects in children of Vietnam-era Veterans at http://www.publichealth.va.gov/exposures/agentorange/birth_defects.asp.

VA encourages Veterans with covered service in Korea who have medical conditions that may be related to Agent Orange to submit their applications for access to VA health care and compensation as soon as possible so the agency can begin processing their claims.

Individuals can go to website http://www.vba.va.gov/bln/21/AO/claimherbicide.htm to get a more complete understanding of how to file a claim for presumptive conditions related to herbicide exposure, as well as what evidence is needed by VA to make a decision about disability compensation or survivors benefits.

Additional information about Agent Orange and VA’s services for Veterans exposed to the chemical is available at www.publichealth.va.gov/exposures/agentorange.

The regulation is available on the Office of the Federal Register website at http://www.ofr.gov/.

            Results of a study reported in the September issue of the Journal of the American Geriatrics Society suggest that Veterans with post-traumatic stress disorder (PTSD) have a greater risk for dementia than Veterans without PTSD, even those who suffered traumatic injuries during combat. Exposure to life threatening events, like war, can cause PTSD, and there are high rates among veterans. PSTD includes symptoms such as avoiding things or people that remind a person of the trauma, nightmares, difficulty with sleep, and mood problems. "We found Veterans with PTSD had twice the chance for later being diagnosed with dementia than Veterans without PTSD," said Mark Kunik, M.D., M.P.H., a psychiatrist at the Michael E. DeBakey VA Medical Center, Texas, USA, and senior author of the article. "Although we cannot at this time determine the cause for this increased risk, it is essential to determine whether the risk of dementia can be reduced by effectively treating PTSD. This could have enormous implications for Veterans now returning from Iraq and Afghanistan." The study included 10,481 Veterans at least 65 years of age who had been seen at the VA Medical Centre at least twice between 1997 and 1999. Outpatient data were gathered for all identified patients until 2008. Subjects who had been wounded during combat (with and without a PTSD diagnosis) were also identified to provide a group with confirmed injuries and combat experience. A group with two visits, but no PTSD or combat related injuries, was identified for purposes of comparison. 36.4% of the Veterans in this study had PTSD. 11.1% of those with PTSD but not injured, and 7.2% of those with PTSD and injured, had dementia, compared to 4.5% and 5.9% respectively in the non-PTSD groups. These results remained significant after other risk factors of dementia were taken into account like diabetes, hypertension, heart disease, stroke, etc.

President Barack Obama said last Saturday the country has a solemn responsibility to ensure that veterans with post-traumatic stress disorder get the help they need. Veterans Affairs Secretary Eric Shinseki is to announced last Monday intended to make it easier for veterans with PTSD to receive government benefits. The new rules will not only apply to veterans of the Iraq and Afghanistan wars, but also those who served in previous conflicts. The regulations drop a provision requiring veterans to prove what caused their illness. Instead, veterans would have to show that the conditions surrounding the time and place of their service could have contributed to their illness.