Veterans’ disability benefits options amid legislative challenges?

Veterans are more likely than anyone else to experience disabilities at all ages. Those who have served recently, in particular, are more likely to have a disability due to improvements in medicine increasing survivability over time. And yet, of the more than 21 million veterans in the United States, it is estimated that only about eight million receive healthcare or benefits from the VA because many do not qualify due to different disability ratings, minimum service requirements, and/or discharge status.


Veterans with Traumatic Brain Injury

New research featured in the Journal of Head Trauma Rehabilitation has highlighted that veterans with traumatic brain injury (TBI) differ from regular civilians with TBI in ways that carry important long-term care and support implications. The results of the study suggest that violent causes of TBI (related to deployment) were more common in the VA group (while falls were the more common cause of TBIs in the civil cases).


Federal Tort Claims Act vs. Section 1151

Many people do not realize that if you have a traumatic brain injury (or any other injury related to your service), you

not only have the option of filing a claim directly with the VA for disability compensation (i.e. a Section 1151 claim), but you can also seek monetary damages under the Federal Torts Claim Act (FTCA; 28 U.S.C §1346(b)) if the negligence of a VA employee causes injury. In fact, the FTCA arguably covers more negligent acts than Section 1151 does and offers other benefits as well, such as a damage calculation system that is based on an individual’s suffering and loss versus an evaluation of how a veteran’s disability impacts their ability to earn a living.

However, it is more complicated in general to obtain damages under the FTCA than disability benefits under Section 1151. While you should work with an experienced veterans’ disability attorney in pursuing either one, you arguably cannot pursue an FTCA claim without the assistance of a knowledgeable attorney. The first step that you and your attorney will take is to file the Standard Form 95, Claim for Damage, Injury, or Death, with the VA Regional Counsel (for whichever region where your injury occurred). The statute of limitations for filing this claim is two years from the date of the injury.


Changes Coming

The current veterans’ disability program allows veterans who have a 60 to 100 percent disability rating through the VA and are unable to secure a job due to their disability to participate in the program. For 2017, the highest monthly rate for a veteran living alone was reportedly $2,915.

Yet there are indications that the tide is changing: Recently, the new Veterans Affairs Secretary David Shulkin stated that the veteran disability system “incentivizes disability.” This spells budget cuts.

According to the VA budget documents, there are approximately 5.5 million veterans and survivors who will receive disability compensation or benefits in 2018; that’s about 180,000 more than there were in 2017 even though the administration’s budget proposal includes less budgeted for veterans disability benefits than fiscal year 2017. The budget also proposes that compensation for unemployable veterans be cut off at age 62, which would take away more than $1,000 per month from many of the most seriously disabled veterans. In other words, if a 60 percent disabled veteran living alone is removed from the Individual Unemployability program; their monthly payment could decrease from $2,915 to $1,062.

But the changes aren’t just to those veterans deemed to be 60 percent disabled, the budget also proposes a change which would cost single veterans with a 90 percent VA disability rating approximately $1,200 per month and entirely strip benefits from 225,000 older veterans.

Unfortunately, it isn’t just budget cuts that promise to negatively affect veterans: national veterans’ organizations are warning that legislation repealing the Affordable Care Act would strip health care from disabled veterans. For example, a special Medicaid program which pays for in-home caregivers (including family members) is designed to help people—including veterans—with serious disabilities avoid institutionalization is just one of many programs which would be at stake in any legislation repealing the current law. It is estimated that rolling back financial support for Medicaid could put at risk the 1.7 million veterans currently receiving Medicaid benefits. Veterans are expected to face significantly higher insurance costs as states are faced with severely constrained Medicaid budgets.


U.S. Supreme Court Justices Speak Up In Support Of Veterans Disability Benefits

Yet hope is not all lost: On June 25th, the U.S. Supreme Court denied certiorari in a veteran’s disability case, Mathis v. Shulkin. However, the dissent issued by Justices Gorsuch and Sotomayor indicates that these justices strongly support of veterans’ disability claims. Specifically, the dissent opinion pointed out that the lower courts and the VA often presume that the Department of Veterans Affairs medical examiners are competent to render opinions against veterans seeking compensation for disabilities. And yet, there is no statutory support for this contention; rather, the VA’s duty is to assist veterans seeking assistance with their disability claims and benefits. The justices imply that, instead, the VA has “manufacture[d] for itself” a regime that makes their job easier instead of serving those interests it is supposed to serve.

Justice Sotomayor also pointed out that, in order to raise an objection, a veteran needs to know a medical examiner’s credentials. Yet, the VA does not provide this information to veterans. While a veteran can gain access to these credentials by going through a Board order, ironically, the Board sometimes requires a veteran to have already raised an objection to an examiner’s competence before ordering the VA to provide credential information. This is what Justice Sotomayor calls “a catch-22.”


Veterans Disability Attorneys in New Orleans, Louisiana

If you are in the process of applying for veterans’ disability benefits, have been denied benefits, or had your benefits reduced, it is crucial that you work with an experienced veterans’ disability attorney to address the issue. In fact, it is your right to obtain legal counsel to work through the process—including the appeals process—here in Louisiana. Contact us today to find out how we can help.

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