WEEKLY NVS UPDATES – August 13, 2007         

HERBICIDE EXPOSURE PRESUMPTION EXTENDED TO USS INGERSOLL CREWMEMBERS

 

The USS Ingersoll (DD 652) operated as a Navy destroyer gunship providing fire support for military ground operations along the Vietnam coast during 1965.  In addition to coastal duty, the USS Ingersoll traveled up the Saigon River on October 24th and 25th of 1965 to fire on enemy bases.  C&P Service has reviewed the ship’s deck logs, located at the National Archives and Records Administration, and confirmed this service in the “inland waterways” of Vietnam.  As a result, the presumption of herbicide exposure, as described in 38 CFR 3.307(a)(6)(i), should be extended to any crewmember who served aboard ship during October of 1965.  This presumption is authorized by M21-1MR section IV.ii.2.C.10.b.  Regional offices should reevaluate any disability claim based on herbicide exposure from one of these veterans that has been denied.

 

CLOTHING ALLOWANCE PAYMENTS 

Clothing allowance may be paid to a veteran who has a service connected disability or a disability that requires he or she wear or use a prosthetic or orthopedic device that wears out or tears clothing.  A service-connected anatomical loss or loss or use of a hand or foot is presumed to require the use of a prosthetic or orthopedic device that wears out the clothing.  The clothing allowance may also be paid if the veteran uses, for a service-connected skin condition, medication prescribed by a physician which causes irreparable damage to the veteran's outer garments.  A skin condition requiring use of medication is not considered static, and a redetermination is required each year.

 

The application form for the clothing allowance is VA Form 10-8678 Application for Annual Clothing Allowance. However, any communication from a veteran describing the device or medication used and requesting payment of the clothing allowance is considered a claim for this benefit. 

 

Annual clothing allowance claims should be sent to the VA Medical Center or Outpatient Clinic of jurisdiction, for the attention of the Prosthetic and Sensory Aids Service. 

 

To be eligible for the 2007 clothing allowance, the veteran must be found to meet the eligibility requirements on August 1, 2007. At the end of July 2007 computer-generated letter/applications are issued to veterans whose records are set to require annual redetermination of clothing allowance eligibility.

 

The 2007 clothing allowance payments for veterans who have been authorized recurring payments and for others whose awards are input on or before the last processing cycle of August will be issued on September 1.  Checks for clothing allowance awards input after the last processing cycle of August will be issued in about seven to ten days after the award is authorized. 

 

The 2007 clothing allowance is $662.00.  Veterans who are receiving their compensation payments by direct deposit will receive the clothing allowance payment by direct deposit. 

SURVIVOR BENEFIT PLAN (SBP) ANNOUNCES “PAID-UP YEARS”

Effective October 1, 2008, SBP participants who reach 70 years of age and have made 360 payments (30 years), will no longer have to pay premiums for continued SBP coverage and will be placed in “Paid-up SBP” status.

Paid-up SBP provisions were mandated by the National Defense Authorization Act for fiscal 1999.  The law also established a paid-up status, also beginning on October 1, 2008, for participants in the Retired Serviceman’s Family Protection Plan once they reach 70 years of age.

No action is required of SBP participants to be placed in Paid-up SBP status.  Once the eligibility criteria has been met, the Defense Finance and Accounting Service will automatically stop deducting premiums from qualifying military retired pay accounts.

The law establishing Paid-up SBP does not allow for refunds of premiums paid before October 1, 2008, even though a retiree may have reached age 70 and made 360 or more premium payments.

DFAS is currently developing changes to the military retiree pay systems that will monitor the number of SBP premiums paid and the age of the participant.  The system updates are targeted for a May 2008 completion date.  At that time, SBP participants who will be eligible for Paid-up SBP status on October 1, 2008, or will meet eligibility within a short time of the implementation date, will be notified by mail of their impending paid-up status. 

Those military retirees who become eligible for Paid-up SBP status after the initial group will be notified of their SBP status on their December 2008 annual Retiree Account Statements that will note the number of premiums paid to date.  Each RAS issued after December 2008, whether annually or as a result of a pay change, will include the Paid-up SBP premium “counter,” based on DFAS records, to help retirees monitor their eligibility status.

More information on Paid-up SBP, including frequently asked questions and news updates, should be available at the DFAS Web site at www.dfas.mil/retiredpay.html within the next several months. 

NEHMER

As part of the CLL Nehmer review process, Central office has requested priority shipment of claims files to be temporary transferred to the Philadelphia Resource Center, Attn. Carl Dean for readjudication.  All claims files must be accounted for and reviewed under the court order.  Please follow the instructions in FL 06-16 for missing claims files, claims files charged out and/or at the BVA, retirement centers (Records Management Center/Federal Records Center), etc.

 

On July 19, 2007, the U.S. Court of Appeals for the Ninth Circuit denied the Government's appeal of a district court order holding that the 1991 final stipulation and order in this case, which provided that VA would make certain retroactive benefit payments within the scope of then existing law, will apply through "September 30, 2015, or until such other time as Congress shall establish, should it enact another extension" of the Agent Orange Act.

 

On July 23, 2007, representatives from Department of Justice, Office of the General Counsel, and Veterans Benefits Administration appeared before Judge Henderson, to show cause why it should not be held in contempt for violating his orders.  At issue are two items concerning VA’s adjudication of chronic lymphocytic leukemia claims:  (1) Judge Henderson alleges that VA, in its periodic status report, has misrepresented the number of cases reviewed by the Philadelphia Resource Center by counting more than once rating decisions that had to be corrected and reviewed more than once; and (2) he does not find credible VA's explanation that a production slowdown during the holiday period can be attributed to vacation and excess leave during that time.  A decision is currently pending.

 

PELEA v. NICHOLSON

The United States Court of Appeals for the Federal Circuit ruled today that the estate of a veteran’s widow may not continue to pursue her unadjudicated claim for benefits based on the veteran’s military service.  Congress has provided separate systems of benefits for veterans and for their surviving family.  Chapter 11 benefits for the veteran end on the last day of the month before the veteran’s death, and the surviving family benefits may obtain unpaid benefits owed to the veteran at the time of the veteran’s death.

The Federal Circuit Court has consistently held that a veteran’s claim under chapter 11 does not survive the veteran’s death, and that Chapter 13 of Title 38 provides for and governs DIC benefits.  However, like a veteran’s benefits, the surviving spouse’s benefits terminate on the last day of the month before the spouse’s death as well.

The Court stated that it seems most unlikely that Congress intended to provide more favorable treatment for veteran’s widows than it provided for veterans, who are the primary focus of the veteran’s benefits legislation.

 

Remember, we as service officers serve the veteran, not the estate.  The court has distinguished in this decision the clear view that the law grants benefits to the veteran during his lifetime, and the surviving spouse during theirs, but the right to benefits does not pass on to the estate.

This decision may be found at www.fedcir.gov

 

 

 

This Update is a service provided by the National Veterans Service of the Veterans of Foreign Wars.  It is intended as a summary of items of potential interest to and use by Department Service Officers and their staff.  Readers are encouraged to thoroughly review the original documents which are the source of items found in this Update