Schmitt & Coletta, P.C.

A three-judge panel of the 4th U.S. Circuit Court of Appeals agreed with a federal judge in , who last year threw out the lawsuits brought against KBR, a former Halliburton Corp. subsidiary. You may remember that Vice-President Dick Cheney was the CEO of Haliburton.

More than 60 lawsuits allege that KBR's practice of dumping tires, batteries, medical waste and other materials into open burn pits created harmful smoke that caused neurological problems, cancers and other health issues in more than 800 service members. The lawsuits, which were filed in multiple districts around the country and then consolidated, also alleged that at least 12 service members died from illnesses caused by the burn pits.

During arguments before the 4th Circuit last month, Susan Burke, a lawyer for the service members, argued that KBR repeatedly violated the terms of its contract with the military to handle waste disposal. She said KBR also disobeyed a military directive against burning hazardous materials.

The panel found that the military had unrestricted control over KBR so that KBR's decisions on waste management and water services were "de facto military decisions" not appropriate for judicial review.

It seems these corporations are untouchable and unaccountable.

The US Court of Appeals recently held that the Board of Veteran Appeals erred by relying on a C&P exam which only measured the current loss of  Range of Motion and did not ascertain the Loss of Motion during flare-ups of the back condition.

If you have an orthopedic injury, the amount of compensation depends upon your functional loss of range of motion. VA examiners routinely push you beyond your functional range of motion to lessen your compensation.  Now they at least have to estimate the degree of limitation during flare-ups. Flare-ups can severely restrict your range of motion.

You may want to appeal a decision awarding compensation based on function limitations of motion,

New Rule:

VA has mailed a development letter to claimants and private representatives (where there is one) affected by an "application defect" that occurred when uploading documents on both the VA's eBenefits and Stakeholder Enterprise Portal (SEP) sites.  The defect resulted in users being incorrectly informed that documents were successfully uploaded, when in fact the documents may have been rejected.  These errors occurred from August 1, 2015 through December 21, 2015.

On January 23, 2015, the Federal Register released Document No. 2015-00297. This document has caused quite a

stir in the elder care industry, and has climbed to the top of the “hot-button issues” list. If you’re not yet familiar with

the document, you’re likely wondering what could possibly cause such widespread interest. It’s an unexpected rule

proposal by the Department of Veterans Affairs (“VA”) regarding net worth determinations, asset transfers, and

income exclusions for Veterans pension benefit eligibility.

You need to know what they are doing and how to take action to STOP them from simply passing these regulations without legislation or vote!  

 Below is a summary of the main changes.

VA proposes a three year look-back period for transfers of assets for less than fair market value. Veterans and their spouses, who are determined to have transferred assets in contravention of the rule, would be subject to apenalty period up to 10 years.

VA proposes to calculate the penalty period by dividing the total amount transferred for less than fair market value (FMV) by the monthly maximum pension a beneficiary could receive. For example, the penalty period would be calculated as follows: Married Veteran transfers $50,000 for less than FMV – penalty period is 23 months ($50,000 / $2,120 = 23.58) Surviving spouse transfers $50,000 for less than FMV – penalty period is 43 months ($50,000 / $1,149 = 43.51).  This is completely unfair to the surviving spouses, who become subject to a penalty nearly twice as long as for married veterans.

 VA proposes to limit the allowable deduction for in-home health care to the average hourly private pay rate for home health aides as published by the MetLife Mature Market Institute, which was $21 an hour in 2012. More than 50% of home care recipients already pay more than that.  

The VA also intends to completely

exclude the costs of independent living facilities as medical

expenses, unless the facility provides 24/7 custodial care

supervision or assistance with two activities of daily living (or

directly contracts with a third party, professional care provider

to do so).

 Previously, a Veteran’s personal residence and a reasonable lot area would be excluded for purposes of calculating net worth. In its proposed rule, VA proposes to limit the land exemption to only TWO acres. This rule improperly punishes rural veterans and farmers.

This proposed legislation is a dishonor to our honorable veterans who made great sacrifices to protect our country.

 YOU CAN HELP!

The public has until March 24, 2015 to make comments to these proposed regulations.  Please take the time to comment on these unfair and potentially illegal changes.

We don’t know when the rules will be changed, so you  must act fast.

The Department of Veterans Affairs (VA) is working to make filing claims and appeals as fast and easy as possible. Beginning Tuesday, March 24, 2015, claims and appeals must be filed using the appropriate form. Standardizing forms will ease frustration among claimants, make claims processing more efficient and help VA reach more accurate decisions.

There are three major actions that will require a specific form or standardized process: Intent to File, claims applications, and Notice of Disagreement.

When filing a formal claim, the following forms should be completed and submitted to VA either electronically via eBenefits (ebenefits.va.gov) or the Stakeholder Enterprise Portal (sep.va.gov), or by mailing the completed paper form to VA:

Applicants who are not ready to file a claim for disability, but wish to preserve a date of claim while  gathering evidence and completing the necessary application form should use one of the following three methods to communicate an intent to file a claim to VA:

Finally, Veterans filing a Notice of Disagreement with a compensation decision should use VA Form 21-0958, Notice of Disagreement. Veterans and their representatives currently use the form on an optional basis. However, beginning March 24, 2015, Veterans must use this form when VA provides the form with a decision notice letter. Veterans and survivors will not be required to use a standardized notice of disagreement form for other types of claims (i.e., pension or survivors benefits) at this time.

If you are unable to download these forms from va.gov/vaforms/, call 800-827-1000 to have the correct form sent to your home.

Requiring standard forms will help VA more quickly identify what the applicant is claiming and gather the evidence required to process the claim or appeal. Standardized forms are a key component of VA’s transformation, which will help achieve the Department’s goal to eliminate the backlog in 2015.