As many veterans advocates are aware, there are

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1 RECENT DEVELOPMENTS IN THE LAW GOVERNING CLAIMS FOR PTSD Introduction As many veterans advocates are aware, there are lowered evidentiary burdens when a veteran has filed a claim for entitlement to service connection for a psychiatric disability resulting from an in-service personal assault, to include military sexual trauma (MST). A July 2012 decision from the U.S. Court of Appeals for Veterans Claims (CAVC or Court) seems to provide veterans advocates with further analysis of what types of stressors may or may not meet the lowered evidentiary burdens required for entitlement to service connection of posttraumatic stress disorder (PTSD) or other psychiatric disabilities resulting from personal assault, to include MST, that occurred during a veteran s military service. Specifically, in Acevedo v. Shinseki, 25 Vet.App. 286 (2012), the Court affirmed a decision by the Board of Veterans Appeals, which denied a veteran s claim for entitlement to service connection under a relatively new section of VA s regulations governing entitlement to service connection for PTSD based on fear of hostile military or terrorist activity. See also 38 C.F.R (f)(3). To our readers... We hope you enjoy this double issue closing out 2012 and we will be releasing our next issue in the near term. No one else offers our blend of reporting and analysis of veterans law. Don t miss out on our authoritative source of information, interpretation and practical advice. Inside this issue... VOL. 23, NO July December 2012 THE VETERANS ADVOCATE A Veterans Law and Advocacy Journal In 2010, a regulatory change allowed certain claims of entitlement to service connection for PTSD to be established without corroborating evidence that a stressful event occurred in service if the claim is related to a veteran s fear of hostile military or terrorist activity. 38 C.F.R (f)(3). Another part of the same regulation specifically deals with in-service personal assault, which may also be referred to as military sexual trauma (MST) 38 C.F.R (f)(5). In that portion of the regulation, corroborating evidence that a stressful event is required, but VA allows for flexibility in the sources of evidence. So, in claims for PTSD as due to in-service personal assault under subpart (f)(5), corroboration of the event can come from many different places other than the veteran s service records, to include lay evidence. Continued, next page Recent Developments in the Law Governing Claims for PTSD...1 Persian Gulf War Presumptive Conditions and Functional Gastrointestinal Disorders...8 Developments in VA s Pension Program: A Look-Back May be on the Horizon...13 Hearing Loss: Basic Requirements and Recent Developments...17 WHAT S NEW? Changes to the Medical Foster Home Program Frequently Asked Advocacy Question: Brown Water Vietnam Service

2 THE VETERANS ADVOCATE JULY DECEMBER 2012 This article will provide an analysis of the Court s decision in Acevedo as well as provide advocacy advice regarding PTSD claims involving both regulatory provisions discussed in the case - 38 C.F.R (f)(3) and 38 C.F.R (f)(5). THE VETERANS ADVOCATE Informing Advocates Since 1989 NVLSP Joint Executive Directors Barton F. Stichman Ronald B. Abrams Editor Louis J. George Contributing Writers Maria Tripplaar Jolene Duncan-Gould Daniella Furey Simone Williams Creative Services MGP Direct, Inc. Rich Pottern Design Subscriptions Kevin Chandler For permission, please write: Louis J. George, Editor The Veterans Advocate NVLSP 1600 K Street, NW # 500 Washington, D.C Or fax: (202) Or tva@nvlsp.org Copyright 2012 by the National Veterans Legal Services Program. All rights reserved. ISSN No more than one article may be reproduced in up to five copies for counseling, self-help, further dissemination to veterans advocates, use in presenting a claim to the VA, or research without further permission and if proper credit is given. Other use requires the written authorization of NVLSP. tva@nvlsp.org Website: Order NVLSP Publications Online Visit and click on Store/Publications to securely order the Veterans Benefits Manual, the Basic Training Course, The Veterans Advocate, and other NVLSP publications quickly and easily. Use VISA, MasterCard, American Express or Discover. 1. Facts of the Case In the Acevedo case, the veteran served on active duty for ten years (from 1978 to 1988) and was discharged for misconduct. Prior to her discharge, she received treatment related to a suicide attempt, and she was diagnosed with an adjustment disorder. Over a decade after her separation from service, the veteran filed an informal claim for entitlement to service connection for a psychiatric disorder. She submitted statements and a medical examination asserting that she was sexually harassed and assaulted in service. A VA mental disorders examination dated February 2001, diagnosed PTSD and a major depressive disorder, but did not provide a nexus opinion as to whether there was a link between her current symptoms and her inservice harassment and assault. Another letter by a VA psychologist, dated June 2008, did, however, note that the PTSD was a result of sexual harassment and assault in-service. That letter failed to describe the veteran s symptoms. An additional VA examination dated November 2008 (and addendum dated January 2009) found that a diagnosis of PTSD was not warranted and instead diagnosed the veteran with major depressive disorder and concluded that it was unlikely that her current condition was related to service. The Board of Veterans Appeals found this examination to be most probative; determined that the veteran did not have PTSD; and, that her current depression was not related to service. Acevedo, 25 Vet. App. at The Veteran s Claim Ms. Acevedo s specific claim was for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The veteran argued in Court that the (1) Board should have applied 38 C.F.R (f)(3) (having to do with fear of hostile military or terrorist 2

3 RECENT DEVELOPMENTS IN THE LAW GOVERNING CLAIMS FOR PTSD activity) rather than 38 C.F.R (f)(5) (having to do with in-service personal assault or MST); (2) that the examination upon which the Board relied to deny her claim was inadequate; (3) that the Board did not properly develop for a claim of depression; and, (4) that the Board provided an inadequate statement of reasons or bases for its decision. Acevedo, 25 Vet. App. at 289. For the purposes of this article, we will focus on only the first argument and explore the differences between these two subparts of 38 C.F.R (f). The Court s decision can assist advocates in preparing claims under either subpart. 3. The Veteran s Argument Before the Court, the veteran argued that she met all of the criteria for service connection under 38 C.F.R (f)(3). She argued that she received a diagnosis for PTSD, and that VA psychologist indicated that her claimed stressors were adequate to support a diagnosis of PTSD. The veteran argued that she qualified for service connection under 38 C.F.R (f) (3). Specifically, she argued that corroboration of the events was not necessary, because the claim was based on her fear of hostile military or terrorist activity, consistent with the places, types, and circumstances of the veteran s service, and there is nothing in the record that clearly and convincingly contradicted those facts. Appellant s Br The veteran alleged that multiple superior officers pressured her into sexual relationships, and provided a one trade for another type of sexual relationship as the only alternative to remaining in a situation where she was constantly tormented, sexually harassed, and sexually assaulted. These events, she argued, caused In 2010, a regulatory change allowed certain claims of entitlement to service connection for PTSD to be established without corroborating evidence that a stressful event occurred in service if the claim is related to a veteran s fear of hostile military or terrorist activity. 38 C.F.R (f)(3). her to experience intense fear and helplessness culminating in an in-service suicide attempt. Appellant s Br She further argued that the fear that this created, and the situations in which it occurred should result in entitlement to service connection being granted under 38 C.F.R (f)(3). 4. The Court s Decision The Court found that the veteran s interpretation of 38 C.F.R (f)(3) was inconsistent with the plain meaning of the regulation and with VA s regulatory history. The Court noted that all of the examples of stressful events provided by the regulation that could potentially create the fear of hostile military or terrorist activity are acts of violence against the U.S. military by opposition forces, and not acts of one servicemember against another. Acevedo, 25 Vet. App. at 291. The Court also found that the regulatory history did not support the veteran s argument because the purpose of the regulation was to liberalize the stressor occurrence confirmation requirements for military personnel who are deployed to war zones and who... are faced with combat-like stressors. Acevedo, 25 Vet. App. at 292 (citing 74 Fed. Reg. 42,617 (Aug. 24, 2009) (Proposed Rule)). Indeed, VA s explanation of the rationale behind the regulation includes specific references to PTSD as a result of deployment to a war zone and the unusual difficulty veterans face when they have been subjected to military conflicts that have increasingly employed non-traditional combat ( guerrilla warfare ). Although some of the stressors noted in VA s explanation such as constant vigilance against unexpected attack clearly would apply to both a situation where an individual underwent a situation such as Ms. Acevedo s and deployment to a non-traditional war zone, the Court failed to interpret the 38 C.F.R (f)(3) as applicable to Ms. Acevedo s situation. Turning to the veteran s other arguments (unrelated to the regulatory interpretation arguments noted above), the Court rejected Ms. Acevedo s argument that the 2008 VA examination inadequately addressed whether there was a nexus between her major depres- 3

4 THE VETERANS ADVOCATE JULY DECEMBER 2012 [I]n claims for PTSD as due to in-service personal assault under subpart (f)(5), corroboration of the event can come from many different places other than the veteran s service records, to include lay evidence. sion and her military service. Furthermore, the Court rejected the veteran s argument that the Board failed to provide an adequate statement of reasons or bases when it failed to discuss service connection for her depression. Acevedo, 25 Vet.App. at Discussion of the Court s Decision Although the Court disagreed with the veteran s argument that she was entitled to service connection for PTSD under 38 C.F.R (f)(3), it did narrowly tailor its decision and noted that VA is not precluded from evaluating in-service personal assaults under subsection (f)(3) as long as the circumstances are such that the veteran s claimed stressor is related to her fear of hostile military or terrorist activity. Acevedo, 25 Vet. App. at 293. It appears as if the Court is drawing a somewhat of a fine distinction related to this regulation that will affect how veterans advocates develop claims related to PTSD as related to MST and/or as related to fear of hostile military or terrorist activity. On one hand, the Court appears to suggest that even if a service-member is assaulting another service-member on a regular basis and inciting terror in the victim of the assault which results in the same types of constant vigilance and symptomatology as a service-member that had undergone a non-traditional combat deployment, he or she would not qualify for service connection under 38 C.F.R (f)(3) because that regulation is meant to provide an avenue to service connection based on fear that originates from the actions of an opposition force. On the other hand, the Court says that it will not reach the question as to whether assault by one service member upon another could ever qualify for application of 38 C.F.R (f)(3) and includes a reference to the shooting of fellow service members and bystanders by a service member at Fort Hood, Texas as an example of a situation that might give rise to such a question. Acevedo, 25 Vet. App. at 293. Therefore, the Court left open the possibility that certain situations of MST might also qualify for service connection under subpart (f)(3) please see Editor s Note at the end of this article for more details. Service Connection for PTSD Under 38 C.F.R (f)(5) and the 2010 Addition of 38 C.F.R (f)(3) Generally, a claim for entitlement to service connection for PTSD requires the following: 1. Medical evidence diagnosing the condition; 2. A link, established by medical evidence, between current symptoms and an in-service stressor; and 3. Credible supporting evidence that the in-service stressor occurred. 38 C.F.R (f). In July 2010, VA changed the regulation in a way that affects the third element listed above the evidence required to support a veteran s claim that an inservice stressor occurred. The regulation governing direct service connection for posttraumatic stress disorder based on in-service personal assault allows evidence from sources other than the veteran s service records to corroborate the veteran s account of the stressor incident. 38 C.F.R (f)(5). The regulation goes on to give examples of evidence that could corroborate the veteran s account. Some examples are, records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or test for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Behavior changes are also cited as relevant evidence that could corroborate. Behavioral changes such as, request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained 4

5 RECENT DEVELOPMENTS IN THE LAW GOVERNING CLAIMS FOR PTSD economic or social behavior changes. This portion of the regulation remains substantively the same after the 2010 amendment. The VA s amendment in 2010 liberalized, in certain cases, the standard for evidence that a stressor occurred. In cases where the veteran is claiming that the stressor that occurred in service is related to the veteran s fear of hostile military or terrorist activity, and the stressor is consistent with the places, types, and circumstances of the veteran s service, the veterans lay testimony alone may be able to establish the occurrence of the stressor. 38 C.F.R (f)(3) (2012). (There are also requirements that a VA psychiatrist or psychologist, or one with whom VA has contracted, confirm that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran s symptoms are related to the stressor.) This means that in certain cases, element (3), credible supporting evidence, is not required in order to establish service-connection for PTSD. The regulation defines fear of hostile military or terrorist activity as when a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran s response to the event or circumstance involved psychological or psycho-physiological state of fear, helplessness, or horror. Examples of events or circumstances that could give rise to this state include actual or potential improvised explosive devices, vehicle imbedded explosive devices, incoming artillery, rocket or mortar fire; grenade; small arms fire, including suspected sniper fire, and attack upon friendly military aircraft. 38 C.F.R (f)(3). The purpose of this change was to liberalize the evidentiary standard required to establish a stressor Given the Acevedo case, it is unknown how the Court will resolve a claim for service connection for PTSD under subpart (f)(3) or (f)(5) under another set of facts. by eliminating the requirement that corroborating evidence support the veteran s account of the stressful event or circumstance the veteran experienced. This amendment considered both the realities of modern warfare as experienced by Gulf War veterans, and current scientific literature relating PTSD to exposure to hostile military and terrorist actions. 74 Fed. Reg. 42,617 (Aug. 24, 2009) (Proposed Rule); Institute of Medicine of the National Academies, Gulf War and Health: Volume 6, Physiologic, Psychologic, and Psychosocial Effects of Deployment-Related Stress (2008). Advocacy Advice As noted above, the Court s holding in the Acevedo case does not make it perfectly clear as to if (or when) an in-service personal assault may give rise to entitlement to service connection for PTSD under subpart (f)(3). It simply notes that in order to use that portion of the regulation the stressor must be related to the veteran s fear of hostile military or terrorist activity, which generally means an opposition force. Therefore, if a service-member assaulted another service-member in a situation where the fear created was based on fear of enemy forces (or similar to such fear), it may qualify. The Court s reference in Acevedo to the shooting of fellow service members and bystanders by a service member at Fort Hood, Texas, suggests that the Court is leaving open this possibility. Further, although VA s explanation of the regulatory change is notably tailored to account for the Gulf War conflicts, types of stressors, and the PTSD symptomatology that the Department of Defense and VA have witnessed as a result of the type of warfare employed in those areas, it is not clear how VA or the Court may handle a situation where a veteran was deployed to an area where opposition forces use sexual assault as a weapon of war. Given the Acevedo case, it is unknown how the Court will resolve a claim for service connection for PTSD under subpart (f)(3) or (f)(5) under another set of facts. What veterans advocates should prepare to do is develop a claim so that an argument under either subpart could be made. As such veteran s advocate 5

6 THE VETERANS ADVOCATE JULY DECEMBER 2012 should know that adequate claim development for PTSD as due to in-service personal assault (to include MST) under (f)(5) includes: 1. Medical evidence diagnosing the condition; 2. A link, established by medical evidence, between current symptoms and an in-service stressor; and 3. Credible supporting evidence that the in-service stressor occurred. (Remember, the supporting evidence can come from many sources that are not the veteran s service records.) Veteran s advocates should know that adequate claim development for PTSD as due to fear of hostile military or terrorist activity (f)(3) does not require credible supporting evidence, but it still is not completely clear how the Court will determine which situations will include Fear of Hostile Military or Terrorist Activity. In the explanation of the rule published by VA on July 13, 2010, VA clarified its position as to what it intended to categorize as Fear of Hostile Military or Terrorist Activity: i. General hardships of deployment such as uncertainty about the length of a tour of duty and lack of companionship or family contact do not count; ii. Stressors may include killing or injuring civilians, not just military personnel or the veteran himself; iii. Hostile military or terrorist activity is not limited to events or circumstances perpetrated by a foreign enemy, so domestic terrorist activity may also qualify; iv. Hearing about another person s combat experience does not count. v. Although comments were received that MST, abuse by military personnel or subordinate military personnel, and harassment should be covered by the rule so that credible supporting evidence is not required, VA refrained from doing so. Conclusion The Court in Acevedo did not agree with the veteran that, given the specific facts of the case, the Board should have applied 38 C.F.R (f)(3), finding that the stressor in this case (MST) could not be equated to fear of hostile military or terrorist activity. However, the Court did not completely preclude an in-service assault from the array of stressors that may allow for service connection under subpart (f)(3). Advocates should carefully consider the facts of their individual case and utilize the appropriate PTSD regulation. In a close case, the advocate should consider applying both regulations (perhaps using one as an alternative approach). Editor s Note: In 2013, the U.S. Court of Appeals for the Federal Circuit issued two decisions involving 38 C.F.R (f)(3) and (f)(5). On June 7, 2013, the Federal Circuit issued a decision in Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013). In Hall, the Court addressed a similar fact pattern as the Acevedo case, i.e., a claim for entitlement to PTSD based upon an in-service sexual assault, claimed to be fear of hostile military or terrorist activity under 38 C.F.R (f)(3). Citing Acevedo, the Court held that 3.304(f)(3) may only apply if the claimed PTSD stressor relates to an event or circumstance that a veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist. 717 F.3d at Subsequently, on September 30, 2013, the Federal Circuit issued a decision vacating and remanding two CAVC decisions in which the Court had rejected separate claims by two veterans who alleged sexual assaults in service because the veterans service records did not include reports of the alleged assaults, and because the veterans stated that the assaults were never reported to military authorities. See AZ v. Shinseki, 2013 U.S. App. LEXIS 19894, 2-3 (Fed. Cir. Sept. 30, 2013). Both of the veterans had filed claims for disability compensation for PTSD alleged to have resulted from in-service sexual assaults. Id. at 2. The Federal Circuit noted, [i]n each of these cases, the Board appears to have treated the absence of service records documenting the alleged assaults, and the absence of a report to military authorities, as evidence that the assaults did not occur In both cases, the Board and 6

7 RECENT DEVELOPMENTS IN THE LAW GOVERNING CLAIMS FOR PTSD Veterans Court also appeared to treat the veteran s failure to report the assault to military authorities as evidence that the assault did not occur. Id. at However, the Federal Circuit concluded the following: (1) the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur; and (2) VA may not rely on a veteran s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur. Id. at 3. These conclusions buttress the principles found in 38 C.F.R (f)(5), which establish a mechanism to corroborate a PTSD stressor, that of an in-service assault, from sources other than the veteran s service records, to include lay evidence. Moreover, as the Federal Circuit so clearly stated, it is impermissible for VA to draw a negative inference as to the absence of such service records or a report to military authorities regarding the in-service assault and subsequently use it against the veteran to disprove the alleged stressor. NVLSP TRAINING One of NVLSP s primary missions is to train advocates so that they can efficiently help veterans secure benefits from the VA. To further this mission, NVLSP conducts trainings for groups of non-attorneys (such as service officers from major service organizations) as well as attorneys. For example, NVLSP recently trained county and state service officers in Illinois and Minnesota. Whether you seek training for non-attorney advocates or attorneys, we will work with you to customize a training program that meets the needs of your organization. We are available to conduct one-day to fourday training sessions. For further information or to schedule training, please contact Ronald B. Abrams, Esq. at ron_abrams@nvlsp.org. TVA subscribers may submit advocacy questions to tva@nvlsp.org. Please make sure to mention FAAQ/TVA in your . We do not guarantee that your question will be published. We reserve the right to edit your question. 7

8 THE VETERANS ADVOCATE JULY DECEMBER 2012 UPDATE: PERSIAN GULF WAR PRESUMPTIVE CONDITIONS AND FUNCTIONAL GASTROINTESTINAL DISORDERS On July 15, 2011, the Department of Veterans Affairs (VA) issued a final rule adopting a proposal to amend its regulations regarding presumptive service connection for medically unexplained chronic multisymptom illnesses associated with service in the Southwest Asia theater of operations. This amendment implemented a decision by the VA Secretary that there is a positive association between service in Southwest Asia and the subsequent development of functional gastrointestinal disorders (FGIDs). The final rule also explicitly clarifies that FGIDs fall within the scope of the existing presumptions of service connection for medically unexplained chronic multisymptom illnesses. See Presumptive Service Connection for Diseases Associated With Service in the Southwest Asia Theater of Operations During the Persian Gulf War: Functional Gastrointestinal Disorders, 76 Fed. Reg. 41,696 (July 15, 2011) (Final Rule). Although Gulf War veterans may obtain disability compensation for presumptive disabilities under same rules as other veterans (i.e. direct service connection), the special rules for Gulf War veterans are important to keep in mind. Specifically, the special rules apply to Gulf War veterans with a qualifying chronic disability, and to veterans with certain listed infectious diseases, or other diseases that become presumptive in future as result of ongoing studies. A qualifying chronic disability may be an undiagnosed illness or a medically unexplained chronic multisymptom illness. Pursuant to 38 U.S.C. 1117, to qualify for these special rules, a claimant must be: 1. A Gulf War veteran; and 2. With a qualifying chronic disability or a listed infectious disease; and 3. The condition must become at least 10 percent disabling within the presumptive period. Advocates should keep in mind that these presumptive rules may be rebutted if affirmative evidence establishes that the disease was not incurred during service, was caused by intervening event, or was the result of the veteran s willful misconduct or abuse of alcohol or drugs. A Gulf War veteran is defined as one who served on active duty in the Southwest Asia theater of operations. This includes Iraq, Kuwait, Saudi Arabia, Neutral zone, Bahrain, Qatar, the United Arab Emirates (UAE), Oman, Gulf of Aden, Gulf of Oman, Waters of Persian Gulf, the Arabian Sea, and the Red Sea. Alternately, a Gulf War veteran can also be one who served in airspace above these locations. The presumptive period began on August 2, 1990, and is currently set to end on December 31, It should be noted that veterans with active service in Afghanistan on or after September 19, 2001 are entitled to presumptive service connection for presumptive infectious diseases (even though they never served in Southwest Asia). The language used in VA Fast Letter caused some confusion as to which presumptive disabilities were extended to veterans who served in Afghanistan as part of Operation Enduring Freedom (OEF). However, pursuant to regulation, at this time OEF veterans are only entitled to service connection on the basis of presumption for the infectious diseases listed in 38 C.F.R (c)(2), but not for the chronic disabilities listed elsewhere in 38 C.F.R Functional Gastrointestinal Disorders Now Considered a Qualifying Chronic Disability As noted above, there are three kinds of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; or, (3) a disease that becomes presumptive for Gulf War 8

9 PERSIAN GULF WAR PRESUMPTIVE CONDITIONS AND FUNCTIONAL GASTROINTESTINAL DISORDERS veterans in the future. A qualifying chronic disability must last for at least six months, or must show intermittent periods of improvement and worsening over at least six months. When 38 U.S.C was first enacted in 1994, the only condition that VA could consider to be a qualifying chronic disability was an undiagnosed illness. See Veterans Benefits Improvements Act of 1994, Pub. L. No , 106, (Nov. 2, 1994). In 2001, Congress added a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) to the classification of a qualifying chronic disability. See Veterans Education and Benefits Expansion Act of 2001, Pub. L. No , 202, (Dec. 27, 2001). Pursuant to the final rule issued in July 2011, the classification of irritable bowel syndrome (IBS) as a medically unexplained chronic multisymptom illness was expanded to what VA refers to as a functional gastrointestinal disorder (FGID). Consequently, 38 C.F.R (a)(2)(i)(B) (2013), currently identifies chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders other than structural gastrointestinal diseases as medically unexplained chronic multisymptom illnesses. Functional gastrointestinal disorders exclude structural gastrointestinal diseases. FGIDs are a group of conditions with chronic or recurrent symptoms unexplained by structural, endoscopic, lab or other objective signs of injury or disease. FGIDs usually require the onset of symptoms at least six months prior to diagnosis, and the presence of symptoms sufficient to diagnose the disorder at least three months prior to diagnosis. In addition, an FGID may be related to On July 15, 2011, the Department of Veterans Affairs (VA) issued a final rule... implement[ing] a decision by the VA Secretary that there is a positive association between service in Southwest Asia and the subsequent development of functional gastrointestinal disorders (FGIDs). any part of gastrointestinal tract. A note to 3.317(a)(2) (i)(b) provides a list of conditions that VA considers to be functional gastrointestinal disorders. FGIDs include but are not limited to: Irritable bowel syndrome (IBS), Functional dyspepsia (indigestion), Functional vomiting, Functional constipation, Functional bloating, Functional abdominal pain syndrome, and Functional dysphagia (difficulty swallowing). However, the listed disorders are not necessarily the only functional gastrointestinal disorders that may be categorized as a medically unexplained chronic multisymptom illness. Symptoms of an FGID may include: Abdominal pain, Substernal burning or pain, Nausea, Vomiting, Altered bowel habits, such as diarrhea or constipation, Indigestion, Bloating, Postprandial fullness, Painful or difficult swallowing. The regulation found at 38 CFR 3.317(a)(2)(i)(B) (2013), defines a functional gastrointestinal disorder as: A group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract.... These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established 9

10 THE VETERANS ADVOCATE JULY DECEMBER 2012 medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. Any condition that fits the above definition may be considered a functional gastrointestinal disorder that is subject to service connection. Advocates are therefore encouraged to argue that any gastrointestinal condition from which a Persian Gulf veteran suffers is a functional gastrointestinal disorder (as that term is defined in 3.317) that should be service-connected. An exception to this rule is inflammatory bowel disease (such as Crohn s disease) and gastroesophageal reflux disease (GERD), which the VA has explicitly stated are considered structural diseases that are not subject to presumptive service connection. See 76 Fed. Reg. 41,696 (July 15, 2011). Of course, advocates may argue that the veteran s inflammatory bowel disease or GERD are chronic diseases that began in service or are otherwise directly related to the veteran s service, or are secondary to a service-connected disability. Review of Medically Unexplained Chronic Multi-Symptom Illnesses A chronic multisymptom illness is defined by a cluster of signs or symptoms. Advocates should be on the lookout for Gulf War veterans suffering from a particular illness without conclusive etiology, characterized by overlapping symptoms and signs, and which has features such as fatigue, pain, disability out of proportion to physical findings. A hallmark of chronic multisymptom illnesses is that the demonstration of inconsistent lab abnormalities (i.e. results of laboratory testing may differ). However, if the etiology of the condition is partially understood, such as with diabetes It should be noted that veterans with active service in Afghanistan on or after September 19, 2001 are entitled to presumptive service connection for presumptive infectious diseases (even though they never served in Southwest Asia). or multiple sclerosis, the disability will not be considered medically unexplained. Of course, advocates know that a veteran can still be service connected for disabilities with partially understood etiologies, if the veteran can meet the espoused requirements for service connection based on service in the Southwest Asia theater of operations, even if condition is not one of the three disabilities listed in 38 C.F.R (chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorder). Those requirements are that the disability is (1) medically unexplained (no cause identified); (2) manifests as a cluster of symptoms; and (3) with inconsistent laboratory results. VA Training Letter Pursuant to VA Training Letter 10-01, Regional Office personnel must be aware that a variety of disabilities may affect veterans with Southwest Asia service; therefore, a thorough review of the medical evidence associated with these claims is necessary to identify any signs and symptoms potentially associated with Southwest Asia service. See Adjudicating Claims Based on Service in the Gulf War and Southwest Asia, VA Training Letter (Feb. 4, 2010). This is true even for disabilities that are not directly claimed. The VA Training Letter explains that standard for Gulf War veteran to obtain a VA examination for a Gulf War illness is very low. In fact, a minimum of evidence is needed: 1. The veteran s lay description of symptoms, and 2. Verified service in Southwest Asia. In addition, VA Training Letter directs examiners to consider any chronic disability pattern and explain whether the veteran has: An undiagnosed illness, or A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology If, after examination, the VA determines that the veteran suffers from a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology or diagnosis, then service connection cannot be granted on the 10

11 PERSIAN GULF WAR PRESUMPTIVE CONDITIONS AND FUNCTIONAL GASTROINTESTINAL DISORDERS To qualify for presumptive service connection, the signs or symptoms of undiagnosed illness must first appear while the veteran served in the Persian Gulf, or become at least 10% disabling during the applicable presumptive period. basis of presumption under Gulf War/Southwest Asia rules. However, the veteran may still be able to establish service connection on a direct basis (not under presumptive rules). Advocates should keep in mind that once a condition has received a diagnosis, the undiagnosed illness rules no longer apply to that claim. However, a veteran may attempt to rebut the given diagnosis with a medical opinion that explains why that diagnosis is not appropriate and that the symptoms should be considered as an undiagnosed illness. Review of Undiagnosed Illnesses According to a VA General Counsel Precedent Opinion dated May 3, 1999, an undiagnosed illness is one that cannot by history, physical examination, and laboratory tests be attributed to any known clinical diagnosis. VA Gen. Coun. Prec (May 3, 1999). Moreover, in this opinion, the VA General Counsel noted that [38 C.F.R] Section 3.317(a)(2) states that the term objective indications of chronic disability includes both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. In layman s terms, what this means is that the determination of an undiagnosed illness does not require objective medical evidence. Rather, an undiagnosed illness can be shown by objective evidence perceptible to an examining physician, or non-medical signs that can be independently verified or observed. For advocates, it is important to note that in these cases, lay statements may be decisive. VA Adjudication Procedures Manual Rewrite M21-1MR specifies the relevant non-medical evidence that may indicate that a veteran suffers from an undiagnosed illness. For example: Events such as time lost from work, or Evidence that the veteran sought medical treatment for symptoms, or Lay (or medical) evidence affirming changes in veteran s appearance, physical abilities, mental or emotional attitude. See Manual M21-1MR, Part IV, Subpart ii, 2.D.14.f. The Manual also provides a non-exhaustive list of signs or symptoms of an undiagnosed illness: Fatigue, Signs or symptoms involving skin, Headache, Muscle pain, Joint pain, Neurological signs or symptoms, Neuropsychological signs or symptoms, Signs or symptoms involving the respiratory system, Sleep disturbances, Gastrointestinal signs or symptoms, Cardiovascular signs or symptoms, Abnormal weight loss, Menstrual disorders. See Manual M21-1MR, Part IV, Subpart ii, 2.D.13.i. To qualify for presumptive service connection, the signs or symptoms of undiagnosed illness must first appear while the veteran served in the Persian Gulf, or become at least 10% disabling during the applicable presumptive period. As discussed previously, we are currently within the presumptive period, which is set to expire on December 31, Advocates should note that the presumptive period has regularly been extended by Congress in the past, and it may again be extended once we approach the current expiration date. Advocates should also note that for rating purposes, the VA must rate a service-connected undiagnosed illness by analogy under 38 C.F.R See Manual 11

12 THE VETERANS ADVOCATE JULY DECEMBER 2012 Specifically, in July 2011, VA issued a final rule stating that functional gastrointestinal disorders (FGIDs) will now be considered a medically unexplained multisymptom illness for presumptive purposes. Previously, irritable bowel syndrome (IBS) was the enumerated condition, but it is in fact only one of many ways in which an FGID may manifest. will now be considered a medically unexplained multisymptom illness for presumptive purposes. Previously, irritable bowel syndrome (IBS) was the enumerated condition, but it is in fact only one of many ways in which an FGID may manifest. To best serve veterans and their families, advocates should ensure that they are educating veterans as to this recent change and filing claims for veterans suffering from all FGIDs, rather than only those suffering from IBS. M21-1MR, Part IV, Subpart ii, 2.D.16.c. This means that VA will rate the undiagnosed illness under a diagnostic code (DC) in which the functions affected, the location, or the symptoms are similar to those of the veteran s undiagnosed illness. 38 C.F.R (a)(5) (2012). Conclusion Effective advocates should ensure that their veteran clients who served in the Southwest Asia theater of operations are properly service connected and adequately compensated for any disabilities that are subject to service connection, including on a presumptive basis. At this time, qualifying chronic disabilities, and the infectious diseases listed in 38 C.F.R (c) (2) are subject to service connection on the basis of presumption for Gulf War veterans. In particular, qualifying chronic disabilities, which include undiagnosed illnesses and medically unexplained multisymptom illnesses may prove challenging to establish for the purposes of VA benefits given the nature of these conditions. However, a close examination of the statute, regulation, and other VA rules associated with adjudicating these claims provide clear guidance to advocates for how to succeed on these claims. In addition, effective advocates should be aware of the recent expansion of the conditions that VA is willing to concede as a medically unexplained multisymptom illness. As part of this, advocates should be aware of the full range of benefits available to their veterans, including when VA changes policies in ways that benefit veterans. Specifically, in July 2011, VA issued a final rule stating that functional gastrointestinal disorders (FGIDs) NVLSP BASIC TRAINING COURSE The Online Basic Training Course in Veterans Benefits NVLSP s Online Basic Training Course is a primer that will help you better understand the rules for obtaining veterans benefits and how to deal with the VA. This easy-to-understand online course is designed for both veterans advocates and veterans themselves, and is designed to provide individuals with vital information and a basic understanding of the system that will help them work more effectively with the VA. The course, including online manual, online sample forms, online test and certificate of completion is $150. Order ONLINE at and click on Publications. Or, if you need to order the course for more than one person, call NVLSP at , extension 104. WHO SHOULD TAKE THIS COURSE? POST SERVICE OFFICERS VETERANS COUNTY, STATE & NATIONAL VETERANS SERVICE OFFICERS ANY VETERANS ADVOCATE 12

13 DEVELOPMENTS IN VA S PENSION PROGRAM: A LOOK-BACK MAY BE ON THE HORIZON DEVELOPMENTS IN VA S PENSION PROGRAM: A LOOK-BACK MAY BE ON THE HORIZON Introduction VA s pension program is designed to provide supplemental income to wartime veterans who are either (1) totally and permanently disabled, or (2) who are over the age of 65. The pension program is needsbased and is similar to Social Security s Supplemental Security Income (SSI) program. VA s pension program differs from VA s compensation program because the total and permanent disability does not need to be connected to the veteran s service in order to receive the pension benefit. Veterans aged 65 or older are presumed to be permanently and totally disabled for purposes of receiving the pension benefit. A veteran s eligibility depends upon the financial assets that he or she may possess. For readers who are less familiar with VA s pension program, including how it differs from VA s compensation program, a more detailed refresher is included at the end of this article. A potential future development in VA s pension program is the introduction of a look-back period to determine financial eligibility for the pension program. On June 6, 2012, Senate Bill S.3270 was introduced. If passed, that bill would make important changes to 38 U.S.C. 1522, which governs the net worth limitation on the VA pension. Specifically, S.3270, if enacted, would create a look-back period similar to such periods used in determining eligibility for other types of government benefits through the Social Security Administration. In particular, the establishment of a look-back period would make any veteran who transferred assets for less than market value within some specified amount of time prior to applying for a pension benefit ineligible for the VA pension for a period of time called a penalty period. Congress says this will help protect elderly veterans from disingenuous estate planning companies that convince veterans to transfer assets away in order to qualify for the VA pension and then never follow through in assisting the veteran in properly applying for the pension benefit. (CQ Congressional Testimony, June 27, 2012, Richard Burr) However, VA has also indicated that it would support a look-back period in order to ensure that benefits are distributed based upon actual need. (CQ Congressional Testimony, June 6, 2012, David R. McLenachen). Although no legislation was enacted at the end of the last Congressional session, in 2013, identical House and Senate bills were introduced to insert a lookback period into the VA pension program. These bills, namely, the Veterans Pension Protection Act, found in H.R. 2341, and S. 748, remain pending as of the date of publication of this article. Before discussing the possible changes to the law (including advice to advocates regarding the potential changes in the law), we will provide a brief refresher to provide basic information about VA s pension program. Potential Look-Back Period for Below-Market-Value Asset Transfers A May 2012 Government Accountability Office (GAO) report on Veterans Pension Benefits entitled Improvements Needed to Ensure Only Qualified Veterans and Survivors Receive Benefits provided a series of recommendations to improve VA s pension program. (GAO ) Among other recommendations, the GAO recommended that VA make modifications to the pension application forms so that veterans must be more specific about their asset transfers prior to applying for a pension and that VA establish more specific criteria for what is considered a reasonable period of time for pension claimants to use up their financial resources before becoming eligible for pension benefits. (GAO , p. 23 (emphasis added)). The report concluded that the ability of veterans to transfer significant assets prior to applying for a VA 13

14 THE VETERANS ADVOCATE JULY DECEMBER 2012 pension... seems to circumvent the intended purpose of the program and wastes taxpayer dollars. Id. at 22. As such, the GAO recommended that a look-back period be established in order to ensure that only those in financial need are granted VA pension benefits. Id. The GAO report also addressed the predatory practices of some financial planning companies that convince veterans to transfer assets into financial products that may not be suitable for their long term financial needs in order to qualify for a VA pension. Although the bulk of the GAO report focused on the potential waste of taxpayer dollars (due to absence of a look-back period), the report did express concerns regarding the exploitation of elderly veterans who were seemingly manipulated into relinquishing control of their assets in exchange for products and services that may not be in their best interest by companies that may not even be familiar enough with the VA benefit system to adequately prepare their pension applications for them. Senate Bill S and corresponding House Resolution H.R followed the GAO s recommendation by proposing a change in legislation that would enact a look-back period. The change in law would make it so that veterans who transfer assets for belowmarket-value within three years prior to applying for a VA pension will be ineligible for the pension for a penalty period. The 2013 Senate and House bills use the term period of ineligibility. The actual wording of the proposed statutory amendment is highly complex. Because the proposal is still being considered by the Senate and House committees, we cannot be sure how the proposed change might be enacted in the future. However, based on the complexity and specificity of the amendment, it appears as if Congress is attempting to take a very proscriptive approach to the creation Senate Bill S and corresponding House Resolution H.R followed the GAO s recommendation by proposing a change in legislation that would enact a look-back period. of a look-back period. The language of the statute seems to suggest that any future look-back period established by Congress will leave VA very little discretion on how to implement the program change. In a June 2012 hearing regarding S. 3270, Senator Burr stated that a look-back period, as provided for in S would alleviate the problem (identified by the Government Accountability Office) where some companies have been convincing veterans to move assets around in order to artificially qualify for pension benefits, which undermines the integrity of the pension program, and can leave elderly veterans without adequate resources in their greatest time of need. (Hearing of the Senate Committee on Veterans Affairs, June 27, 2012). However, Emily Schwarz, President of Veterans Financial, Inc., testified before the Senate s Special Committee on Aging that their research has uncovered that less than 2% of the tens of thousands of families her organization surveyed transfer assets out of their name in order to become eligible for benefits. She also warned that making changes to the program that would require veterans to exhaust their financial resources before becoming eligible for pension benefits could turn the pension program into a welfare program with an arduous approval process that only helps those [who are] completely impoverished. (CQ Congressional Testimony, June 6, 2012). Heather L. Ansley of VetsFirst, testified regarding a very specific problem with the look-back period in S that it did not include an exemption for transfers of assets into a financial product called a special needs trust. (Testimony Before the Senate Committee on Veterans Affairs, June 27, 2012). Ms. Ansley noted that those types of instruments are specifically designed to provide services for those with disabilities, such as home modifications. Ms. Ansley stated that as written, the proposed amendment would punish veterans who wanted to transfer assets into such a trust by creating a period of ineligibility for the VA pension. This shortcoming is especially troubling considering the purpose of the pension program is to assist economically disadvantaged veterans. Ms. Ansley testified again in 14

15 DEVELOPMENTS IN VA S PENSION PROGRAM: A LOOK-BACK MAY BE ON THE HORIZON Determining a veteran s countable income can be slightly confusing because it counts virtually all income of any kind, from any source, that is attributable to the veteran. This includes income from eligible dependents. June 2013, regarding H.R. 2341, and noted a concern regarding special needs trusts. (Hearing Before the House Committee on Veterans Affairs, Subcommittee on Disability Assistance and Memorial Affairs, June 28, 2013). As mentioned above, the future of this proposed amendment is unclear, and veterans advocates are left with many questions. First, is the purpose of the amendment to protect veterans from exploitative practices of some disingenuous financial planning companies? Or is it to protect the public treasury? If the true problem is predatory financial planning companies and the nursing homes that contract with them taking advantage of veterans, why is Congress not proposing regulations to protect veterans from the exploitative behavior? It is our initial impression that a look-back will only temporarily protect the public funds until the market catches up with the regulation, in which case veterans may be convinced to dispose of their assets sooner, and will be forced to become completely impoverished in order to qualify for the VA pension. Refresher: VA Pension Basics VA has three different pension programs: (1) The Improved Pension Program, (2) Section 306 Pension, and (3) the Old-Law Pension. In order to establish basic eligibility for all three pension programs, VA requires the following: The veteran must be discharged under other than dishonorable conditions; The veteran must have served a certain period of time, some of which was wartime service; The veteran must have limited income and their assets do not provide adequate maintenance; The veteran must be permanently and totally disabled; and, The permanent and total disability of the veteran must not be due to the veteran s willful misconduct. See Veterans Benefits Manual Section (2012). Accordingly, if the other requirements are met, eligibility for all of the programs is based on financial need and disability. Remember, the disability does not need to be connected to service that is, be somehow linked to an incident or event in service as it does for entitlement to disability compensation. We will focus this refresher on the financial need and disability requirements of the Improved Pension Program, because that program is the only pension program available to new claimants (or anyone filing a claim for a pension after January 1, 1979). Determining whether a veteran is in financial need for the purposes of establishing eligibility for the Improved Pension Program depends on a veteran s countable income. A veteran s pension rate is calculated by subtracting their countable income from the maximum amount that is payable, which is set by Congress. Determining a veteran s countable income can be slightly confusing because it counts virtually all income of any kind, from any source, that is attributable to the veteran. This includes income from eligible dependents. See Veterans Benefits Manual Section (2012) (citing 38 C.F.R , 3.271). Please see Chapter 6 of the Veterans Benefits Manual for specifics on how to compute income for pension purposes. Advocates should know, though, that income for pension purposes includes payments from disability and retirement, interest and dividend payments, and net income from farming or a business. The VA s website includes a Maximum Annual Pension Rate chart that shows the income limitations required in order for veterans to qualify for a pension. For example, effective December 1, 2012, a veteran without a spouse or child must have a yearly income of less than $12,465 in order to qualify for pension. There 15

16 THE VETERANS ADVOCATE JULY DECEMBER 2012 are important rules on what exactly is excluded from income for the VA improved pension purposes. For example, welfare and proceeds from some types of insurance policies are excluded from income. Advocates should take a careful look at Chapter 6 of the Veterans Benefits Manual and the VA pension regulations, to ensure that veterans applying for a pension have excluded any and all appropriate financial gains that qualify as exclusions from countable income. It should be kept in mind that it is not just traditional income that matters when it comes to qualifying for a pension. The veteran s net worth must not be so large so as to provide him or her with sufficient means to support him or herself. In determining a veteran s net worth, assets like bank accounts, stocks, bonds, mutual funds, annuities, and properties other than the veteran s residence count. Conclusion To date, it is not clear exactly what shape a potential look-back period will take as it relates to veterans transferring assets prior to applying for a VA pension. While a variety of bills have been introduced in Congress recently, none have yet been enacted into law, and without additional details we are unable to draw hard conclusions as to whether a look-back period would be beneficial to veterans. Specifically, without additional information, it is premature to draw conclusions as to whether such a change would address the problem of veterans being taken advantage of by financial planning companies convincing veterans to acquire financial products that may not be in the veteran s best interest, or whether the implementation of the look-back period is simply designed to decrease public spending on the VA pension system. In any case, veterans advocates should be watchful for the creation of a look-back, and we will be closely monitoring any developments because a change in law such as what is currently proposed will greatly affect veterans eligibility to the pension program. Veterans advocates are encouraged to contact an elder law attorney for the best information on how to help elderly veterans avoid the pitfalls discussed above and appropriately qualify for the VA pension, if it is applicable to a particular veteran. While a variety of bills have been introduced in Congress recently, none have yet been enacted into law, and without additional details we are unable to draw hard conclusions as to whether a look-back period would be beneficial to veterans. 16

17 HEARING LOSS: BASIC REQUIREMENTS AND RECENT DEVELOPMENTS HEARING LOSS : BASIC REQUIREMENTS AND RECENT DEVELOPMENTS Approximately 700,000 Veterans are serviceconnected for hearing loss, making the disability the second most prevalent service-connected claim filed with the Department of Veterans Affairs, next to tinnitus. See abr/2011_abr.pdf. Numbers are increasing and expected to grow as improvised explosive devices (IEDs) and other new technology are utilized by military and hostile forces. Although hearing loss is one of the most prevalent disabilities, obtaining service connection can be quite difficult in some circumstances. This article will address the basic legal elements of service connection for hearing loss, as well as some recent developments in the law. Service Connection Like any service-connected disability, in order to establish entitlement to service connection for hearing loss, a veteran must have suffered from an in-service event or incident, have a current disability of hearing impairment meeting VA standards, and a nexus or link between the in service event and the current disability. See 38 C.F.R (2013). In addition to direct service connection (and delayed direct service connection under 38 C.F.R (d)), VA considers sensorineural hearing loss as an organic disease of the nervous system listed in 38 C.F.R (d)) and hence, may be service connected on a presumptive basis (or by continuity of symptomatology) under 38 C.F.R (b). See VA Training Letter (March 18, 2010); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (presumptive service connection and continuity of symptomatology limited to those conditions listed on 38 C.F.R (d)). In Service Event The easiest way to prove an in service event is to review the service treatment records for complaints of hearing loss. This includes examining any periodic or separation physical examinations that might show that the Veteran s hearing was deteriorating. In most cases, proving the in-service event will not be that simple. It is always a good idea to look through the service treatment records for any duty assignments that placed a veteran at risk for hearing loss in the future. The VA provides a Duty MOS Noise Exposure list that describes the riskiest jobs as they relate to noise exposure. EXAMPLES OF JOBS SUBJECT TO NOISE EXPOSURE Missile Crewmen Engineers Military Band Players Vehicle Repairmen Instrument players Dentist and Dental Assistants Most of the jobs that are listed in the MOS Noise Exposure listing are subject to audiometric hearing test during service. If service treatment records do not suggest exposure to high noise exposure, a veteran may still be able to prove that he or she was exposed by submitting statements from other people who served with the veteran, or family members. List can be found at: dutymosnoise.xls. It should also be noted that certain audiograms conducted before 1966 or 1967, were most likely conducted using older American Standards Association (ASA) units, rather than the current International Standards Organization (ISO) or American National Standards Institute (ANSI) units. The older audiogram measurements should be converted to ISO units prior to comparison with more recent, ISO measurements. The different testing standards are discussed later in this article. 17

18 THE VETERANS ADVOCATE JULY DECEMBER 2012 Current Disability Veterans must establish that they have a current hearing loss disability at the time the claim is filed. Under 38 C.F.R. 4.85, a veteran is required to have had a hearing examination conducted by a state-licensed audiologist. The examination must include a controlled speech discrimination test and a pure tone audiometric test. In order to be considered hearing impaired for VA purposes, 38 C.F.R requires auditory thresholds of one of the following frequencies 40 decibels or greater or at least 3 of the below thresholds to be 26 decibels or greater. THRESHOLD Decibel Requirement or more of the above thresholds at 26 A disability can also be established by scoring less than 94 percent on the Maryland CNC Test. The threshold decibel amount cannot be averaged to meet the requirement. See Meedel v. Shinseki, 23 Vet.App. 277 (2009). Please note, however, that in cases in which an audiogram report is not available, a practitioner may refer to hearing loss in qualitative manner, e.g., severe, or profound, which correspond to numeric level of hearing loss, which therefore may meet the hearing loss thresholds set forth in 38 C.F.R , or at the very least, warrant the provision of a medical examination and/or opinion. Specifically, hearing measurement is divided into seven categories over the frequencies of 500, 1000, and 2000 Hertz: normal; slight; mild; moderate; moderately severe; severe; and profound. See Jerry L. Northern, Hearing Disorders, 50, Table 4-1 (Scale of Hearing Impairment) (Allyn & Bacon, 3 rd ed. 1996). Normal is used to describe a threshold audiologic decibel loss ranging from 0 decibels to 15 decibels. Slight is used to describe a threshold audiologic decibel loss ranging from 16 to 25 decibels. Mild is used to describe a threshold audiologic decibel loss ranging from 26 decibels to 40 decibels. Moderate is used to describe a threshold audiologic decibel loss ranging from 41 decibels to 55 decibels. Moderately severe is used to describe a threshold audiologic decibel loss ranging from 56 decibels to 70 decibels. Severe is used to describe a threshold audiologic decibel loss ranging from 71 decibels to 90 decibels. Finally, profound is used to describe a threshold audiologic decibel loss ranging from 91 decibels on. Id. Nexus The nexus requirement can be the most difficult part in obtaining service connection for hearing loss. Often a veteran does not file a claim for hearing loss until many years after being separated from service. In addition, records might show that hearing loss was normal upon separation (this, however, does not preclude entitlement to service connection, pursuant to Hensley v. Brown, 5 Vet.App. 155, 159 (1993)). As a result, it is difficult to tell whether hearing loss is due to military service or some other factor such as presbycusis (aging) or a job obtained after service. In order to determine whether there is a link, a medical opinion is almost always necessary. The medical opinion should state that the hearing impairment is at least likely as not (or even better, is more likely than not) related to military service. Common Issues It is always a good idea to analyze the VA s decision for common mistakes. Once service connection is granted, it is recommended that the advocate double check to ensure that the proper rating has been assigned. In addition, an advocate should ensure that the VA relies on all testing, not just the speech recognition test. Testing standards Each examination should be analyzed to ensure that correct standard for audiometry has been utilized. Audiograms made before a certain date (June 30, 1966, for VA audiometers, and October 31, 1967, for service department audiometers) used an older standard, the 18

19 HEARING LOSS: BASIC REQUIREMENTS AND RECENT DEVELOPMENTS American Standards Association (ASA) standard, which resulted in different (lower) values from audiograms obtained using the current standard (the International Standards Organization (ISO) or American National Standards Institute (ANSI) standard). In order to compare properly audiograms using the two different standards, it is necessary to convert the ASA units to the ISO/ANSI units. If an examination uses ASA units, or the date of the examination occurred when ASA units were used, an audiologist opinion will be needed to interpret the results and convert to ISO/ANSI units. Recent Developments Dr. Kujawa s Study Many times service connection is denied because doctors believe that damage to hearing occurs directly after exposure to high levels of noise exposure. As a result, the VA s Adjudication Procedures Manual specifically states: In Noise and Military Service: Implications for Hearing Loss and Tinnitus (2006), the National Academy of Sciences reported that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. M21-1MR, Part III, Subpart iv, Chapter 4, Section B 12 d. In other words, the results of hearing loss would be exhibited almost immediately. However, Dr. Sharon Kujuwa from Harvard Medical School published a study that suggests otherwise. According to her study, entitled Neurodegenerative Consequences of Noise Exposure, after acoustic overexposure, hearing thresholds are immediately elevated, but improve with a roughly exponential time course for several weeks. It is not until after exposure and then recovery, do some experience permanent damage to hair cells. Therefore, a normal audiogram following exposure to noise does not necessarily mean that there was no hearing damage. Referencing Dr. Kujawa s study when attempting to obtain service connection could potentially rebut a negative medical examination/opinion as based upon an inaccurate factual premise (if the examiner states categorically that there is no such thing as delayed-onset hearing loss. ). See Sharon G. Kujuwa, et al., Adding Insult to Injury: Cochlear Nerve Degeneration after Temporary Noise-Induced Hearing Loss, 29 (45) J. Neuroscience 14077, (2009). Review/Key Questions When an advocate is working on a claim for entitlement to service connection for hearing loss, the advocate should ask several questions in preparing the claim: If safety equipment was provided, was it adequate to prevent hearing loss? Could there be other duty assignments that are at risk for high noise exposure that are not located in the Service Treatment Records? Is there evidence to rebut that a job obtained after service was not subject to high levels of noise exposure? Have old examinations been converted with the proper rating assigned? Can relatives, spouses or other member who served with the veteran provide lay evidence concerning the veteran s hearing? CONCLUSION Obtaining entitlement to service connection for hearing loss is significant and can help a veteran obtain needed VA medical care (including prescription hearing aids), as well VA compensation benefits. An advocate approaching this type of claim should be aware not only of the basic elements of service connection, but also the medical and legal issues specific to hearing loss. Furthermore, an effective advocate should be aware of recent developments and medical studies (i.e., the Kujawa study), and incorporate them into their work, to assist their veteran-claimants in obtaining the benefits to which they are entitled. 19

20 THE VETERANS ADVOCATE JULY DECEMBER 2012 WHAT S? NEW WHAT S NEW: Changes to the Medical Foster Home Program The Medical Foster Home Program is a program that offers non-institutional residential facilities that serve as a long term care alternative to nursing homes for veterans. The program originated in Little Rock, Arkansas, and was founded by two VA social workers in the hopes of providing a less costly long term care option for veterans. The Medical Foster Home (MFH) Program offers 24-hour care and supervision to veterans who are unable to live alone safely and/ or are suffering from a chronic or terminal illness. This smaller, more intimate level of care allows a veteran to receive long term assistance in a private home setting while maintaining a certain level of independence that a nursing home cannot offer. Recently, there have been some changes to the Medical Foster Home Program. In the Final Rule issued on February 2, 2012, the VA amended its medical regulations to add rules relating to the Medical Foster Care Program. Prior to the final rulemaking, all VA Medical Foster Homes relied on regulations governing community residential care facilities. After examination, it was determined that these regulations did not reflect all the aspects of medical foster homes, since they provide a much smaller and more intimate residential facility and serve a narrow, complex, and disabled population. 77 Fed. Reg. 5,186 (Feb. 2, 2012) (Final Rule). The VA s regulations define a Medical Foster Home as: specific type of community residential care facility that provides home based care to a small number of residents with serious chronic disease and disability. 77 Fed. Reg. at 5,186. Medical foster homes are still considered to be a subset of the community residential care program, since they do provide room and board in addition to CHANGES TO THE MEDICAL FOSTER HOME PROGRAM personal care. However, this definition presumes that medical foster homes, in fact, do provide a greater level of care than other residential facilities, justifying the creation of a new set of regulations. The VA s regulations became effective as of March 5, At the outset, this article will examine the Medical Foster Home Program within the context of the VA s regulations, and the remainder of this article will address the changes that were made to the MFH Program. In addition, this article will analyze the new policies that have been implemented since the effective date. Currently, there are a total of 65 VA Medical Centers that have MFH Programs that are either fully functioning or in the process of being developed. These MFH Programs are scattered all over the country, offering services to veterans regardless of their geographic location. All VA recognized and approved MFHs can house a maximum of three veterans at a time. This limited capacity reflects the ability to truly provide personalized care to each veteran and speaks to the true homelike environment that MFHs provide. See the Veterans Benefits Manual Section Residence in an MFH is a voluntary decision that a veteran (or a veteran s spouse or appointed spokesperson) makes for him/herself. The veteran is also solely responsible for payment, agreeing to the charge directly with the MFH owner and/or caregiver. Payment has to be made within two weeks of the referral to the Currently, there are a total of 65 VA Medical Centers that have MFH Programs that are either fully functioning or in the process of being developed. These MFH Programs are scattered all over the country, offering services to veterans no matter their geographic location. 20

21 CHANGES TO THE MEDICAL FOSTER HOME PROGRAM MFH for successful placement. The VA s only role is in referring veterans to officially recognized MFH in their geographic location; VA will not assist a veteran in moving or relocation costs. In terms of expenses, the only requirement that a MFH has, is that the fee has to be comparable to other assisted living and nursing homes in that same regional area. Also, it should be mentioned that Special Monthly Pension (SMP) should be administratively granted based on MFH placement-prior to the finalization of the rule making. See generally 77 Fed Reg. 5,186; VA Fast Letter (Apr. 13, 2011). In order for a veteran to be eligible for placement into a Medical Foster Home, there are basic qualifications that have to be met. A veteran must: (1) meet the nursing home level of care (which can range anywhere from requiring close supervision to bedridden), (2) be unable to live independently due to functional, cognitive and/or psychological impairment, and (3) have a complex medical condition that requires care from a VA home health care team. When a veteran is referred to an MFH, VA has determined that the veteran meets the above mentioned requirements and is, or is willing to become, enrolled in the VA Home Based Primary Care Program, the VA Spinal Cord Injury Homecare Program or a similar VA program. Once the eligibility requirements are established, a veteran will be referred to an officially recognized Medical Foster Home. See 38 C.F.R (2013). Similar to the eligibility requirements for a veteran, in order for an MFH to be officially recognized by the VA, they too have basic requirements to meet. These include, but are not limited to: having safe and functioning systems for heating, electricity, plumbing, cooking, private bedrooms for each resident and scheduled activities. The full list of MFH Requirements can be found at 38 C.F.R After the first publication of the proposed regulations on May 19, 2011, the VA allowed for a 60 day comment period in which VA received two comments that are applicable to the rules surrounding eligibility of living in a MFH. The first concern raised was whether these new regulations would prevent a spouse from living in a MFH with the veteran. In the Supplementary A veteran must: (1) meet the nursing home level of care (which can range anywhere from requiring close supervision to bedridden), (2) be unable to live independently due to functional, cognitive and/or psychological impairment, and (3) have a complex medical condition that requires care from a VA home health care team. Information to the Final Rule, the VA stated that as long as there is an agreement between the spouse, veteran and MFH caregiver, a spouse can live in the home with the veteran. The VA also stated that a veteran will never be forced to leave their spouse. The only stipulation here is that the spouse cannot also require long term personal care, and if they do, then they would be considered a resident of the MFH as well and count toward the number of residents being treated there. The other concern raised in the comment period was if placement in a MFH is restricted to veterans of a certain age. The VA answered this concern by clarifying that there is no restriction on age just the eligibility requirements mentioned earlier. 77 Fed. Reg. at Another change that has been implemented in the Medical Foster Care Program is the addition of a MFH Coordinator at both the Regional Office (RO) level and the Veterans Affairs Medical Center (VAMC) level. According to VA Fast Letter 11-13, C&P Service will publish the list of MFH Coordinators on its Coordinator Lists page on the VA intranet. The MFH Coordinator at a VAMC is responsible for: identifying veterans who meet the eligibility requirements for placement in an MFH, contacting the Coordinator at the RO when a veteran is ready to be admitted to a MFH, ensuring that the treatment facility conducts a thorough examination for aid and assistance and completes Form VA as well as faxing all relevant materials to the MFH Coordinator at the RO, including any applicable medical records. The VAMC MFH Coordinator will work closely with the MFH Coordinator at the RO to assist a veteran with placement into a recognized Medical Foster Home. In addition to working with the VAMC MFH Coordinator, 21

22 THE VETERANS ADVOCATE JULY DECEMBER 2012 the RO MFH Coordinator is responsible for: obtaining any needed medical or treatment records from the VA facility treating the veteran, ensuring that all relevant claims applications, forms and medical evidence are recorded before the claim is sent to either the Rating or Post-Determination Team (or within the current workflow structure, to the appropriate segmented lane), for processing, and notifying the MFH Coordinator at the VAMC of the decision as soon as it is made. If, for some reason the claim cannot be granted at the RO, then the MFH must send a Veterans Claims Assistance Act let- ter based on the evidence of record. Having a Medical Foster Home Coordinator at both the Regional Office and the Veterans Affairs Medical Center allows for constant communication and continuity of care for any veteran seeking MFH as a long term care option. See VA Fast Letter (Apr. 13, 2011). In conclusion, VA promulgated the new regulations to recognize the smaller, more intimate level of care that a Medical Foster Home provides. Hopefully, the new regulations will allow the MFH Program to grow and become more available to veterans around the country. LAWYERS SERVING WARRIORS PDBR The National Veterans Legal Services Program (NVLSP) provides free legal representation through its Lawyers Serving Warriors project to veterans applying to the Physical Disability Board of Review to obtain permanent military disability retirement benefits. Since 9/11, 100,000 of those who served in Iraq or Afghanistan have been found unfit for continued military service due to physical or mental disabilities. The large majority of them received a military disability rating of less than 30% which deprived them of retirement benefits including monthly retired pay, TRICARE healthcare coverage for both the service member and his or her dependents, and access to military commissaries and exchanges. Because Congress believed the military often under-evaluated these disability ratings, it created in 2008 a new military board, the PDBR, to review the case of anyone who was medically separated since 9/11/2001 with a rating of less than 30%. The PDBR has the authority to increase the disability rating to 30% or above so that the veteran receives lifetime disability retirement benefits retroactive to the date of separation. To date, nearly 40% of the veterans applying to the PDBR have won an increase in their disability rating so that they are entitled to lifetime military disability retirement benefits. To apply to the PDBR, a veteran must submit an application and supporting documents proving that the disability rating the veteran received by the military should have been rated at a higher percentage using the VA s schedule for rating disabilities. NVLSP s Lawyers Serving Warriors project has trained attorneys who can help veterans apply to the PDBR at no cost to the veteran. To get more info and request free assistance on a PDBR application, go to Then under What We Do, click on Lawyers Serving Warriors. 22

23 FAAQ ADVOCACY Question: I m assisting a Vietnam-era Navy veteran who has a condition that would receive presumptive service connection if we could prove that the ship he served on went into the brown water of Vietnam. However, the ship the veteran served on at that time is not on the VA s list of ships whose crewmen qualify for the presumption of Agent Orange exposure due to service on the inland waterways in the Republic of Vietnam. How to I assist this veteran to establish his brown water service? Editor s Note: This inquiry is specific to veterans who served in the inland waterways of Vietnam (brown water Vietnam service), and will not address issues related to veterans who served in the waters offshore of Vietnam (blue water Vietnam service), or in other locations outside of the Republic of Vietnam. Answer: We frequently encounter scenarios as advocates where we are asked to assist a veteran with proving service in brown water of Vietnam, even when the veteran s ship is not on the Senate s list of ships whose crewmen are presumed to have been exposed to Agent Orange. The first thing to remember is that a veteran s ship does not have to be on the list in order to prove that the veteran actually served on a ship that entered the inland waterways of the Republic of Vietnam. The VA s list, other information published by VA, and the veteran s decklogs are all important when you assist a veteran in developing his or her claim for a condition that would receive presumptive service connection if you could prove the veteran s service in the brown water of Vietnam. As a starting point, veterans advocates should be aware of the VA s list of ships whose seaman receive the FAAQ: BROWN WATER VIETNAM SERVICE FREQUENTLY ASKED QUESTION presumption of Agent Orange exposure. This list is not static, and as additional information becomes available, the Senate and the VA are continuously expanding the list to include new ships. The list is available to the public here: Currently, 285 ships are included on that list, and the ships are arranged alphabetically. Veterans advocates should become familiar with the list, not only because a ship that a given veteran served on might be on it, but also because the geographic areas where the ships traveled are important in making a case that a veteran had brown water service. In some cases, ships are added to this list because they anchored or docked in a blue water harbor and crewmen went ashore. In other cases, the ships are known to have operated in Vietnam s inland waterways. Also, some ships on this list operated on rivers, even though they were designed as blue water vessels. Therefore, it is most helpful for a veterans advocate to become familiar with that list for both the names of the ships that are listed and for the geographic areas where the ships operated. Knowing the geographic areas that VA has acknowledged brown water service will help veterans advocates develop a claim for a veteran because his service may have been in one of those geographic areas, even if his ship is not listed. [A] veteran s ship does not have to be on the list in order to prove that the veteran actually served on a ship that entered the inland waterways of the Republic of Vietnam. The VA s list, other information published by VA, and the veteran s decklogs are all important... 23

24 THE VETERANS ADVOCATE JULY DECEMBER 2012 LAWYERS SERVING WARRIORS CRSC The National Veterans Legal Services Program (NVLSP) provides free legal representation to veterans applying for Combat-Related Special Compensation (CRSC) through its Lawyers Serving Warriors project. Congress created CRSC in 2008 to provide certain veterans who suffer from combatrelated disabilities with hundreds of dollars per month in additional tax-free compensation to supplement whatever disability benefits they are already receiving from the VA or the military. To be eligible for CRSC, a veteran must (1) have been permanently retired by the military for disability or placed on the TDRL; (2) be entitled to serviceconnected disability compensation from the VA; and (3) believe that one of more of the disabilities that VA has service-connected are combat-related. Veterans from all eras may qualify for CRSC. To receive CRSC, a veteran must submit a detailed application and supporting documents to the veteran s military branch proving that one of more of the veteran s service-connected disabilities are combat-related. NV- LSP s Lawyers Serving Warriors project has hundreds of trained attorneys who can help veterans apply for this benefit, at no cost to the veteran. For example, one volunteer attorney in NVLSP s Lawyers Serving Warriors project was able to help a veteran apply for CRSC and receive on-going CRSC payments of $440 per month, in addition to a retroactive CRSC payment of $43,000 all of which is tax-free. To get more info and request free assistance with a CRSC application, go to Then under What We Do, click on Lawyers Serving Warriors. VA has published an informative Training Letter in September Training Letter provides guidance to VA s Compensation and Pension (C&P) Service (which since 2010 has been separated in two entities, Compensation Service and Pension Service, respectively) in order to make sure that there is consistency and fairness in processing disability claims based on Agent Orange exposure that have been filed by Navy and Coast Guard Vietnam-era veterans. Veterans advocates should become as familiar as possible with this training letter because it names several geographic areas that VA has acknowledged as brown water. (This, and other training letters are available on the CD-ROM version of NVLSP s Veterans Benefits Manual (2012)) That training letter specifically notes the Cua Viet River, Mekong River Delta, and Saigon River as areas where brown water service has been recognized. In addition to naming certain geographic areas, the Training Letter indicates that in order for the presumption of [Agent Orange] exposure to be extended to a Blue Water Navy Veteran, there must be evidence that the veteran s ship operated temporarily on the inland waterways of Vietnam OR that the ship docked to a shore or pier. If a veteran is making a claim based on the fact that his ship docked to a shore or a pier, the veteran must provide a lay statement that the veteran personally went ashore. In those cases, a lay statement that the veteran went ashore is sufficient for him to receive the presumption of exposure. Unless there is evidence that contradicts the veteran s statement that he went ashore, VA also accepts that the statement is true. Finally, veterans advocates should become familiar with the veteran s decklogs. The decklogs are available by making a records request from the U.S. Army & Joint Services Records Research Center (JSRRC). When making a records request, the veterans advocate should narrow the scope of the search by trying to figure out the approximate date that the veteran thinks he was in brown water or the inland waterways. When the veterans advocate receives the decklogs, they should carefully review them in order to search for geographic areas that VA has acknowledged are brown water. In conclusion, veterans advocates should carefully review the publicly-available lists from the VA and the Senate, the VA s training letter, and the veteran s decklogs when building a case for a veteran to receive presumptive service connection due to Agent Orange exposure. 24