1 National Service Department Dispatch Dispatch 09-03 September 18, 2009 News for DAV National Service Officers National Service Department Disabled American Veterans 807 Maine Avenue, SW Washington, D.C. 20024 (202) 554-3501 www.dav.org U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT http://www.cafc.uscourts.gov/ M.O.P.H. USA, and N.V.L.S.P. v. Secretary of Veterans Affairs, No. 2008-7076, (Fed. Cir. Sep. 10, 2009) http://www.cafc.uscourts.gov/opinions/08-7076.pdf The petitioners, the Military Order of the Purple Heart of the USA and the National Veterans Legal Services Program, requested direct review by the Court of Appeals for the Federal Circuit (“Federal Circuit”), in accordance with the provisions of 38 U.S.C. §502, of a new procedure promulgated by the Secretary of Veterans Affairs with respect to the determination of certain claims. The petitioners argued that the new procedure, which applied only to large awards of $250,000.00 or more, or awards retroactive for 8 or more years, was in violation of law and regulation, for the decision of the claim is made without notice to the veteran that an award made by the regional office has been reduced, and without a hearing before the decision- maker. The Federal Circuit noted that a veteran is excluded from participation in the proceeding that reduced the award, and is denied knowledge and a record concerning the reduction. The petitioners pointed out that this new procedure was adopted without public Notice and Comment, as required by the Administrative Procedure Act (“APA”). The Secretary responded that this procedure was merely a matter of “internal housekeeping,” and that there were sound policy reasons for its adoption. The only issue on the petition was the legality of the new practice and its method of adoption. Continued on Page 2...
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National ServiceDepartment Dispatch
Dispatch 09-03September 18, 2009
News for
DAV National
Service Officers
National Service DepartmentDisabled American Veterans
807 Maine Avenue, SWWashington, D.C. 20024
(202) 554-3501www.dav.org
U.S. COURT OF APPEALS FOR THEFEDERAL CIRCUIT
http://www.cafc.uscourts.gov/
M.O.P.H. USA, and N.V.L.S.P.v. Secretary of Veterans Affairs,
No. 2008-7076, (Fed. Cir. Sep. 10, 2009)
http://www.cafc.uscourts.gov/opinions/08-7076.pdf
The petitioners, the Military Order of the Purple Heart of theUSA and the National Veterans Legal Services Program,requested direct review by the Court of Appeals for theFederal Circuit (“Federal Circuit”), in accordance with theprovisions of 38 U.S.C. §502, of a new procedure promulgatedby the Secretary of Veterans Affairs with respect to thedetermination of certain claims.
The petitioners argued that the new procedure, which appliedonly to large awards of $250,000.00 or more, or awardsretroactive for 8 or more years, was in violation of law andregulation, for the decision of the claim is made without noticeto the veteran that an award made by the regional office hasbeen reduced, and without a hearing before the decision-maker. The Federal Circuit noted that a veteran is excludedfrom participation in the proceeding that reduced the award,and is denied knowledge and a record concerning thereduction. The petitioners pointed out that this new procedurewas adopted without public Notice and Comment, as requiredby the Administrative Procedure Act (“APA”). The Secretaryresponded that this procedure was merely a matter of “internalhousekeeping,” and that there were sound policy reasons forits adoption. The only issue on the petition was the legality ofthe new practice and its method of adoption.
Continued on Page 2...
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M.O.P.H. … (continued):
The Federal Circuit concluded that the procedure, whereby certain regional office decisions werere-determined by the Compensation and Pension Service (“C&P”) without the knowledge andparticipation of the claimant, did not comply with the extant Regulations, and that its promulgationrequired the Notice and Comment provisions of the APA. The Federal Circuit thus granted thepetition and set aside the procedure of Fast Letters 07-19 and 08-24.
The practical effect of the decision is that regional office decisions that grant large awards of$250,000.00 or more, or awards retroactive for 8 or more years do not have to be submitted toC&P for further review. It is not certain whether or not the Secretary will seek reconsideration ofthe Federal Circuit’s decision. However, the Federal Circuit’s decision is controlling unless it isoverturned on reconsideration or by the Federal Circuit sitting en banc.
Vazquez-Flores v. ShinsekiNos. 2008-7150, 2008-7115 (Fed. Cir. September 4, 2009)
http://www.cafc.uscourts.gov/opinions/08-7150.pdf
This decision involved two cases consolidated in the Federal Circuit, concerning what notice underthe Veterans Claims Assistance Act (VCAA) the VA must provide in a claim seeking an increaseddisability rating. When the lower Court of Appeals for Veterans Claims (CAVC) decided this casein January 2008, it wrote a tutorial on claims for increased ratings and specified that VA mustprovide the claimant information about how to substantiate in increased compensation claim andthe criteria for higher ratings for the specific disability. The notification must also invite theclaimant to describe the effect of the disability on his or her activities of employment and dailylife. 22 Vet.App. 37 (2008). This resulted in the Vazquez-Flores VCAA letters VA has beensending to veterans filing claims for increased disability ratings.
This Federal Circuit decision now overturns the lower court, deciding that the notification aboutalternative rating criteria are unnecessary to satisfy the VCAA, and that evidence about "daily life"is not relevant to rating the disability. The problem is that the Federal Circuit has not defined whatnotice is required, so the case will go back to the CAVC for it to decide this issue.
This is all complicated by the fact Congress amended the VCAA requirements in VeteransBenefits Improvement Act of 2008. Congress mandated that the VA:
(i) shall specify different contents for notice based on whether the claim concernedis an original claim, a claim for reopening a prior decision on a claim, or a claim foran increase in benefits;
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(ii) shall provide that the contents for such notice be appropriate to the type ofbenefits or services sought under the claim;
(iii) shall specify for each type of claim for benefits the general information andevidence required to substantiate the basic elements of such type of claim; and
(iv) shall specify the time period limitations required pursuant to subsection (b).
VA has not promulgated regulations to implement these requirements. Until they do or theCAVC decides what notice is required in increased rating claims, it is unclear whether VA mustcontinue to send Vazquez-Flores letters to all veterans seeking higher ratings.
VA WARNS OF TELEPHONE PRESCRIPTION SCAM
The Department of Veterans Affairs (VA) is warning Veterans not to give credit card numbersover the phone to callers claiming to update VA prescription information.
"America's Veterans have become targets in an inexcusable scam that dishonors their service andmisrepresents the Department built for them," said Dr. Gerald Cross, VA's Under Secretary forHealth. "VA simply does not call Veterans and ask them to disclose personal financialinformation over the phone."
Veteran Service Organizations have brought to VA's attention that callers are misrepresenting theVA to gain personal information over the phone. They say VA recently changed procedures fordispensing prescriptions and ask for the Veteran's credit card number.
"VA has not changed its processes for dispensing prescription medicines," Cross said. "Nor hasVA changed its long-standing commitment to protect the personal information of this nation'sVeterans."
Veterans with questions about VA services should contact the nearest VA medical center or call,toll-free, 1-877-222-8387.
COPAYMENT REFUNDS FOR COMBAT VETERANS
The National Defense Authorization Act of 2008 (NDAA) (Public Law 110-108) extended theperiod of enhanced enrollment eligibility and cost-free care for conditions potentially related tothe theater of combat operations. Major implications of this law are:
Any combat Veteran currently enrolled and new combat Veterans enrollees who weredischarged from active duty on or after January 28, 2003, are eligible for enhancedenrollment placement into Priority Group (PG) 6 (unless eligible for higher PGplacement), for 5 years post discharge.
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Combat Veterans discharged from active duty before January 28, 2003, who didnot previously enroll in VA’s health care system and apply for enrollment on orafter January 28, 2008, are eligible for enhanced enrollment placement into PG 6(unless eligible for higher PG placement) through January 27, 2011.
As a result of the NDAA, Veterans are also eligible for retroactive refunds of copaymentsthey made for medical services and prescriptions associated with treatment related to theircombat experience.
VHA facilities are presently conducting reviews to determine applicable copayments whichshould be refunded to these Veterans. VHA anticipates mailing letters to impacted Veteransin November 2009 informing them that they are due a refund which will be subsequentlyissued by the end of December 2009. Veterans will be encouraged to contact the HealthResources Center with any questions at 1-800-983-0932.
VA WARNS OF TELEPHONE PRESCRIPTION SCAM
The Department of Veterans Affairs (VA) is warning Veterans not to give credit cardnumbers over the phone to callers claiming to update VA prescription information.
"America's Veterans have become targets in an inexcusable scam that dishonors their serviceand misrepresents the Department built for them," said Dr. Gerald Cross, VA's UnderSecretary for Health. "VA simply does not call Veterans and ask them to disclose personalfinancial information over the phone."
Veteran Service Organizations have brought to VA's attention that callers aremisrepresenting the VA to gain personal information over the phone. They say VA recentlychanged procedures for dispensing prescriptions and ask for the Veteran's credit cardnumber.
"VA has not changed its processes for dispensing prescription medicines," Cross said. "Norhas VA changed its long-standing commitment to protect the personal information of thisnation's Veterans."
Veterans with questions about VA services should contact the nearest VA medical center orcall, toll-free, 1-877-222-8387.
