Schmitt & Coletta, P.C.

Veteran Attorneys Fighting For Veterans and Their Families

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GI Bill Backlog

Posted on October 8, 2018 at 3:28 PM Comments comments (246)
As of Friday, September 28, 2018, there were over 226,000 veterans and their family members awaiting payments and decisions on their GI Bill claims. This represents a 56.5% increase in pending workload as compared to this time last year.

Investigation Into the VA Reveals a Culture of Retaliation Against Whistleblowers

Posted on June 21, 2018 at 2:11 PM Comments comments (351)
VA employees in one Southeast district say a toxic culture of retaliation has undermined veterans' care and worker morale. There is growing skepticism among whistleblowers the VA can police itself

VA watchdog accuses leadership of withholding access to employee complaints

Posted on June 21, 2018 at 1:58 PM Comments comments (216)
Veterans Affairs’ independent watchdog office is accusing department leaders of improperly withholding records dealing with employee complaints, saying the action could be covering up potential criminal misbehavior.
Veterans Affairs leaders have responded by accusing the inspector general of overstepping its authority and improperly issuing reports that “recklessly cast the VA and its employees in an unfavorable light.”
Lawmakers pulled into the fight this week call the conflict concerning.
“The total lack of cooperation from the VA is alarming and a disservice to American veterans and taxpayers,” said Sen. Jon Tester, D-Mont., and ranking member of the Senate Veterans’ Affairs Committee.
“I’m demanding the VA immediately comply with the IG’s request for access to information. The VA leadership that prides itself on transparency is not above the law or exempt from independent oversight.”

Appeals Court Tosses Veterans' Lawsuits Over Burn Pits

Posted on June 21, 2018 at 1:53 PM Comments comments (107)
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.

Incresed Compensation for Back Injuries

Posted on October 27, 2017 at 1:02 PM Comments comments (384)
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,

Medicaid Expansion Helped Vets

Posted on April 30, 2017 at 9:43 PM Comments comments (48)
The number of uninsured veterans in the U.S. declined by nearly 40% from 2013 to 2015, but that number could drop even more if more states opt to expand Medicaid, according to a
.

The Urban Institute and the Robert Wood Johnson Foundation found that the number of uninsured veterans ages 19-64 dropped from 980,000 in 2013 to 552,000 in 2015, according to a study published Wednesday.

The majority of the coverage gains occurred in states that decided to expand Medicaid coverage under the Affordable Care Act. The uninsured rates among veterans averaged 4.8% in expansion states compared to 7.1% in non-expansion states in 2015.

The study estimated that an additional 110,000 veterans could gain coverage if states that opted not to expand Medicaid reversed course.

NEW RULE

Posted on April 30, 2017 at 9:29 PM Comments comments (47)
New Rule:

You may now request another hearing before the Board of Veteran Appeals when you case is remanded! Cook v. Shulkin

The old case said there was but one administrative review by the Secretary which meant upon a remand either to the BVA or the Regional Office, you did not get another hearing to testify or submit evidence at a hearing.

Under Cook, there is no limit the number of BVA hearings a Veteran may have after a remand.

Cases go up and down from the Board to the Court, Remanded back to the Board and sometimes remanded back to the Regional Office.  On each remand the Veteran is entitled to another hearing.

However, if you really don't need another hearing don't ask for it.  Another hearing adds another 12 to 18 months onto the claim before a decision.

VA Lost Docs

Posted on May 5, 2016 at 3:20 PM Comments comments (62)
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.

VA Aid & Attendence Proposed Rule Chanes are Devastating

Posted on March 22, 2015 at 3:07 PM Comments comments (39)
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).
This will eliminate anyone who is housebound

needing to live in a safe environment due to physical or
cognitive limitations.


 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.
Click through to this link to review the proposed rules and to submit comments at http://www.regulations.gov and search for: RIN 2900-AO73

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

Mandatory New VA Forms Effective March24, 2015

Posted on March 22, 2015 at 2:56 PM Comments comments (2255)
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:
  • For disability benefits, applicants must now use VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits.
  • To apply for needs-based pension, use VA Form 21-527EZ, Application for Pension. To file a claim for dependency and indemnity compensation (DIC), survivor’s pension, and accrued benefits, claimants should complete VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits .
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:
  • 1) electronically via eBenefits (ebenefits.va.gov) or the Stakeholder Enterprise Portal (sep.va.gov),
  • 2) mailing VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC, or
  • 3) over the phone with a VA call center representative.
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.

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