AMA and Hot Topics

1. AMA and Hot Topics By Heather Bullerman

2. Topics • AMA C/TVSO need to know information • AMA Forms • Aid and Attendance • Static Ratings vs Future Exams • Protected Ratings • 38 U.S.C. 1725 • Procopio v. Wilkie • This and That

3. AMA Need To Know

4. Legacy • Legacy claims are those that were rated prior to 2/19/2019 • Currently there are approximately 35,000 appeals in Legacy awaiting action nationally • The VA intends to have them completed around Fall 2020 • In our department, there were 317 Legacy appeals pending for SD veterans as of 4/5/19 • Claimant may file a 20-0995 if they want to submit new evidence • Claimant must file a 21-0958 if they want to start an appeal without submitting new evidence

5. Legacy Continued • If the 20-0995 is submitted and denied again, the claimant will need to choose one of the three AMA lanes • If they filed the 21-0958 and receive an SOC/SSOC, they may choose to either file a Form 9 or they can opt into one of the AMA claim lanes • **** THEY CANNOT GO STRAIGHT INTO AMA ****

6. Appeals Modernization Act

7. Supplemental Claim Lane • Must be completed on the VA Form 20-0995 • Can be used to ask for reconsideration of a claim that was decided less than one year ago, or to reopen an older claim • Does not need a 21-526ez attached • Does need new and material evidence • Claim will go through NWQ for processing with the first available VSR/RVSR • Effective date will be of original claim (reconsideration), or date of VA Form 20-0995 (reopen) • CUE (clear and unmistakable errors) do not need this form

8. VA Form 20-0995

9. Higher Level Review • Must use VA Form 20-0996 • Must be filed within one year of the claim notification letter • Cannot include additional evidence • Will be routed to a DROC in either St. Petersburg or Seattle for review and decision • May receive a one-time telephone informal conference with the DROC

10. VA Form 20-0996

11. Board Of Veterans Appeals • Must use VA Form 10182 • Must be filed within one year of decision or 60 days following SOC/SSOC • Will be reviewed/decided by BVA law judge in Washington DC • Three separate dockets listed on form: • Direct Review – Review of evidence on file (no hearing) • Evidence Submission - 90 days to submit evidence (no hearing) • Hearing Docket – Hearing with BVA Law Judge and 90 days to submit additional evidence • AMA completion goal is set for 365 days

12. VA Form 10182

13. Questions on AMA?

14. Aid and Attendance

15. Aid and Attendance Pension • Benefit is most often associated with NSC pension and death pension • Must be in receipt of pension, will increase the monetary benefit • VA will look at the following: • Is the applicant in nursing care, assisted living, or independent living • Do they require someone to provide assistance to them in their home • VA will make a rating decision on the need for A&A • Unless it is temporary due to injury or surgery, the grant for A&A is permanent

16. Activities of Daily Living • The VA considers what Activities of Daily Living the applicant requires. Here is the VA definition from the web site: • You require the aid of another person in order to perform personal functions required in everyday living, such as bathing, feeding, dressing, attending to the wants of nature, adjusting prosthetic devices, or protecting yourself from the hazards of your daily environment • You are bedridden, in that your disability or disabilities requires that you remain in bed apart from any prescribed course of convalescence or treatment • You are a patient in a nursing home due to mental or physical incapacity • Your eyesight is limited to a corrected 5/200 visual acuity or less in both eyes; or concentric contraction of the visual field to 5 degrees or less

17. Activities of Daily Living Con’t • Depending on the severity of need, typically no less then two ADLs are required to grant A&A • The more ADLs the better chance of being granted • A doctor must confirm assistance with the ADL is required on a 21-2680. • Must be indicated where the care is coming from • In home care provided by children is acceptable, the care giver does not need to be a licensed professional • The medical evidence is critical and verbiage is important • Medical records can also helpful in determining A&A • A&A must be for medical needs

18. Activities of Daily Living Tasks • Medication Management • Meal Prep • Assistance with feeding • Bathing • Dressing • Walking • Getting in and out of a chair or bed • If memory issues are present reminders of listed ADL may also be considered.

19. Aid and Attendance Compensation (Spouse) • Veteran must be service-connected with at least 30% rating • The VA will grant A&A for a spouse of service connected veteran that require A&A • All the same criteria apply to this benefit as for Pension A&A • Application is the same as pension you must provide a 21-2680 • The benefit is in 2019 is $109.00

20. Aid and Attendance for Compensation Benefits (Veteran) • There is a lot of confusion regarding A&A for veterans on compensation benefits • It changes from A&A to Special Monthly Compensation • We get a lot of 21-2680 for veterans requesting A+A from CVSO’s because the veteran is house bound or in a nursing home or assisted living and requires A+A but not necessarily for service-connected conditions • A 21-2680 alone will not get a veteran a SMC. The veteran must meet the requirements of the SMC (l) • Next we will look at the requirements for SMC (l) The need for A+A and permanently house bound

21. 38 USC § 1114(l) SMC RATINGS • GENERAL (38 CFR § 3.350(b)) • The SMC rate payable under 38 USC § 1114(l) is authorized for the following disabilities or conditions: • Anatomical loss or loss of use of both feet • Anatomical loss or loss of use of one hand and one foot • Blindness in both eyes with visual acuity of 5⁄200 or less • Being so helpless as to be in need of the regular aid and attendance (A&A) of another person (38 CFR § 3.350(b)(3)); • Being permanently bedridden (38 CFR § 3.350(b)(4)). • Veteran must be 100% service-connected to qualify

22. Questions on A&A?

23. Static Ratings vs Future Exams

24. Future Exams • Depending on the type of disability and the opinion of the examiner, some service-connected disabilities will require a future examination • Future exam date will show on rating code sheet • It will automatically be scheduled by VA • The veteran will most likely see reduction if they don’t show for examination

26. Static Ratings • When a rating is static, it is determined that it will most likely not improve from the current level of disability • Will be reflected on the rating code sheet • The VA will not automatically reevaluate that disability • They may reevaluate it if the veteran request an increase, files a secondary condition, or files for individual unemployability

28. Protected Ratings

29. 38 CFR 3.957 • § 3.957 Service connection. • Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

30. 38CFR 3.951 • § 3.951 Preservation of disability ratings. • (a) A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved • (Authority: 38 U.S.C. 1155) • (b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation

31. 38 U.S.C. 1725 Outpatient Emergency Care AKA Mil Bill

32. 38 U.S.C. § 1725 (38 CFR §§ 17.1000-17.1008) Emergency Care (Outpatient and Inpatient) Must meet all of the following: • VA must be notified within 72 hours of admission - and • Claims filed within 90 days [38 CFR 17.1004(d)] - and • Prudent layperson definition [38 CFR 17.1002(b)] - and • VA and other Federal facilities were not feasibly available • [38 CFR 17.1002(c)] - and

33. 38 U.S.C. 1725 con’t Must meet [38 CFR 17.1002]: • The emergency services were provided in a hospital emergency department or a similar facility – and • Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment – and • Veteran is financially liable to the provider of emergency treatment for that treatment – and • Veteran has no coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment (Medicare A&B considered insurance) – and • If treatment was due to an injury accident, the claimant has exhausted without success all liability claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment , and the Veteran has no contractual or legal recourse for extinguishing, in whole, the Veteran’s liability to the provider – and • The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment

34. 38 U.S.C. 1725 con’t Note: Payment is limited to the point of stabilization, except when: • VA is contacted upon stabilization – and • VA cannot accept the transfer of the Veteran – and • The community care facility made and documented reasonable attempts to transfer the Veteran to a VA or other Federal facility

35. Procopio v. Wilkie Vietnam Blue Water Navy

36. Background • Historically, VA’s interpretation of herbicide presumptive regulations has generally been service within the physical land borders of Vietnam, either on the ground or the inland waterways • Vietnam service defined as January 9, 1962 to May 7, 1975 (38 U.S.C. § 1116(a)) • On January 29, 2019, the Federal Circuit held that the clear intent of 38 U.S.C. § 1116 is that a Veteran who served in the territorial sea of the "Republic of Vietnam" is entitled to the presumption of exposure to Agent Orange. This class of Veterans is generally known as "blue water" Navy Veterans; but any claim based on the court's expanded definition of exposure, regardless of branch of service, might be included

37. Background continued… • Claims that might be affected by the Procopio ruling include those based on herbicide exposure for which the only evidence of exposure is service on a vessel within the 12-nautical mile territorial sea of the Republic of Vietnam or other service offshore, depending upon VA's evaluation of the court's decision • The decision will require VBA to extend the presumption of service connection where the claimant can establish • service in the territorial seas of Vietnam during the required time period (January 9, 1962 to May 7, 1975 per 38 U.S.C. § 1116(a)), and • that he or she suffers from one of the diseases listed in 38 C.F.R. § 3.309(e)

38. Current Status • VA filed a motion to stay implementation, which suspends final action on claims potentially affected by the Procopio decision, while VA continues to evaluate the Court’s decision

39. Controlling Affected Claims • Until Procopio litigation and subsequent determinations have been resolved, rating decisions for these claims cannot take place. Pending further guidance, Regional Offices must control claims based on "blue water" Vietnam Veterans from claimants seeking presumptive service connection with end product (EP) 335

40. Processing New Herbicide Claims • Proceed with development and rating for all claimed issues, in the normal manner, based on existing regulations, manual provisions, and other guidance to include consideration of service connection/service connected death for any claimed condition on a direct, secondary, contributory, or presumptive basis • Grant any claimed contentions under existing herbicide exposure rules, if possible • If the claimed condition is not presumptive under 38 CFR 3.309(e), decide the issue following normal processing rules

41. Processing New Herbicide Claims con’t… • Any issues that cannot be granted but are potentially impacted by Procopio should not be processed • This would include any claim for service connection as the cause of death of a Veteran (not restricted to Navy) where the claimant either: • Specifically claims herbicide exposure/Agent Orange exposure and the Veteran’s service was in the “blue waters” of Vietnam OR • Such service is specifically indicated by the evidence of record (such as service personnel records) • If a claimant is simply claiming the Veteran, Navy or otherwise had “boots on the ground” service within the physical land borders of Vietnam and the evidence does not indicate any potential “blue water” service, the condition may be denied via current standard procedures

42. Processing New Herbicide Claims con’t… • Any issues potentially impacted by Procopio should NOT be formally addressed or deferred in a rating decision • If any issues can be decided without impact from Procopio, such issues should be rated and/or promulgated, and cleared under the pending EP • The VSR should then establish a separate EP 335 for any Procopio issue while promulgating the pending EP • Note: RVSRs should direct such action to be taken via a codesheet note when applicable OR through a deferral in VBMS when no other rating issue exists

43. Processing New Herbicide Claims con’t… • If no issues can be granted without consideration of Procopio, change (PCHG) the pending EP to an EP 335. • RVSRs may use VBMS imbedded deferral functionality to request the VSR follow the below steps in accordance with VBA Letter 20-19-05 if the claim makes it to RFD status: • Apply “Blue Water Navy Flash” (regardless of branch) • Ensure all contentions still requiring adjudication based on Procopio exposure have been added • Send notification to the claimant containing approved language (SEE SLIDE 17) • Add AO – Blue Water Notice tracked item with 30-day suspense date • Claim status: Open • Claim will be recalled and held in 499 until further action can be taken

44. Example • Example: • EP 140 received requesting DIC, survivors pension, accrued benefits and SMP. Review shows the Veteran served in the Navy and was located in “Blue Waters” only. The claimant claims AO exposure on a VA Form 21-4138, Statement in Support of Claim submitted with the application stating the Veteran’s service was in the Blue Waters. The COD is listed as diabetes mellites II (a presumptive of 3.309e). Based on the evidence provided, VA can grant survivors pension with A/A. No accrued benefits are payable, and we can’t grant DIC without considering Procopio VA Action: • Develop for AO exposure following current processing guidelines. • Once the suspense date is up, send to Rating Activity • The RVSR will decide the issue of SMP only and add a note on the rating codesheet advising the VSR to establish a separate EP 335 based on the DIC claim that cannot be decided and to add the approved autotext (SEE SLIDE 17) • The VSR will process the EP 140 following current procedures for the issues not affected by Procopio. The notification letter should state “VA has not made a decision on your claim for DIC,” as well as include the approved autotext. The VSR will CEST a separate EP 335 using the same date of claim as the pending EP 140 • The Authorizer will clear the EP 140 as normal

45. Supplemental Herbicide Claims • Proceed with development and rating for all claimed issues in the normal manner • If some issues can be decided without impact from Procopio, such issues should be rated, promulgated, and cleared under the pending EP • If no issues can be granted without consideration of Procopio, change (PCHG) the pending EP to an EP 335 and follow the previous steps

46. Supplemental Herbicide Claims con’t • In general, supplemental (previously denied) claims affected by Procopio should not require additional development if the appropriate development has been completed in the past. • If additional development is indicated, such as the identification of new and relevant evidence via a 4142, such development should be followed before changing the EP to a 335. • This will ensure that all duty to assist requirements have been met when decisions on these issues can ultimately be made. • If the current evidence indicates an issue may be impacted by Procopio, or the claimant specifically requests promulgation under Procopio/new “blue water” guidance, this should be considered acceptable new and relevant evidence (and therefore not an incomplete supplemental claim).

47. Herbicide Appeals • March 21st 2019, the Federal Circuit denied the VA Secretary’s motion to stay the entry of mandate. Mandate was issued on March 22nd, 2019. • BVA is now granting appeals for blue water veterans whose ships were within 10 nautical miles of the Republic of Vietnam • VBA building teams to identify ship locations • Evidence such as deck logs, cruise books, etc can be beneficial in determining ship location • VA has yet to make a determination on effective dates

48. This and That

49. FDC vs Standard Claim • VA Form 21-526ez has options between FDC or standard claim • FDC means all the VBA needs to get is federal records and C&P • If submitting evidence in the future, or if you include a VA Form 21-4142 & 21-4142a, this will be a standard claim • If you select FDC and they need non-federal records, that is what prompts the removal from FDC development letter

50. Individual Unemployability Change • This year VA changed it’s process for staying on IU. • Previously the veteran needed to fill out a VA Form 21-4140 annually to determine eligibility and would propose to discontinue IU without a prompt response • New process includes a VA data wage match with Social Security Administration. Anyone showing income above the poverty line will be sent a VA Form 21-4140 • Veteran will still need to notify changes of income, dependents, hospitalization at VA expense, incarceration, etc.