Leave No Veteran Behind
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Not On A Desert Trail
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The Advocate's Corner is work in progress.
This page will collect information that may be of long term interest to the lay or professional advocate who is representing or helping veterans manage their claims. We hope to provide data that will be of value to the technically knowledgeable reader who has an advanced interest of the rules, regulations and laws that govern our lives.
We welcome articles from advocates. For example, Leo Dougherty is an Accredited Agent who has contributed enough of his work that we designed a page featuring his articles.
01/2012
At community centers, nursing homes and assisted living facilities, their spiel to older veterans goes something like this: We can get you instant eligibility for additional benefits through a quick overhaul of your investments. These self-described "veterans advocates" are in fact unscrupulous investment advisers.
Jim,
This widely broadcast email is causing some discussion among lawyers who think that it's possible someone has complained to congress about annuity salesmen who target elderly veterans. I hope this is going after the predatory annuity sales force that preys on elderly veterans and their families. Not all annuities are bad, but people using them need to understand the full impact and secondary effects of annuities, especially as it might then affect things like Medicaid.
"I work on the Education, Workforce, and Income Security team at the U.S. Government Accountability Office (GAO). GAO is conducting a review of the Department of Veterans Affairs' pension program, including determining the extent to which companies may be marketing financial products, such as deferred annuities, to elderly veterans. We have heard that these products are marketed as a way for elderly veterans to reduce their countable assets and thus meet program thresholds for the VA's pension and aid and attendance benefits. We would like to discuss the pros and cons of veterans using these products to qualify for pension benefits. Thanks for your assistance."
Should a Life Insurance Agent (with a Whopping Two Days of Training) be allowed to perform a “Quick Overhaul” of Elderly Veterans Investments?
Scam Alert - Taking Aim at Old Soldiers - Seminars target vets with unwise investments
Promises Made, Promises Broken? Were Veterans Really Promised Benefits For Life?
Read the Congressional Research Service report that tells you just what you were (or were not) told.
Divorce In Military Families – How It’s Different & What You Need To Know
TRICARE - Health Care for Service Members and Others
What Do I Need to Know about the Federal Electronic Benefits Rules?
A Servicemembers Guide to Student Loan Interest Rates
Interactive Form and Letter Generators
Mind Reading and the Art of Drafting Medical Opinions in Veterans Benefits Claims
James D. Ridgway, The George Washington University Law School
Psychological Injury and Law Download available at SSRN: http://ssrn.com/abstract=1967508
"The purpose of this article is to assist those involved in VA’s currently sub-optimal evidence gathering system in producing better results under the current regime." James Ridgway
Abstract:
Once
upon a time, deciding veterans benefits claims was simple and logical,
although not perfect. Prior to the institution of judicial review, when a
veteran filed a disability claim, the relevant records would be
gathered and given to a panel of medical and legal experts. The experts
would each bring their own specialized knowledge to the discussion and
issue a decision that applied medical science and applicable law to the
facts of the case. Such decisions may well have been correct as to the
science and the law, but they were impossible to verify in the absence
of any stated rationale. In practice, there were substantial doubts
about whether the decision-making process was living up to its ideal,
and Congress ultimately responded to political pressure by passing the
Veterans Judicial Review Act.
Once judicial review was instituted, it was necessary to disband these panels of experts in order to separate the evidence in a case from the application of the law to it. Unfortunately, this necessity was not foreseen by Congress and the re-engineering of the system caused by the disbandings occurred through ad hoc responses to decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for Veterans Claims (CAVC). This has produced a disjointed system that unnecessarily fragments the evidence-gathering system in a way that is both inefficient and prone to error.
The outcome is a system in which the most common errors are due to inadequate medical evidence.
Unfortunately, there is no reform on the horizon that would replace the current system. Until reform is enacted, producing a high-quality medical opinion that is adequate for making a final decision on a veterans benefits claim will often require a bit of mind reading on the part of the examiner to anticipate all the information that an adjudicator might need.
Once judicial review was instituted, it was necessary to disband these panels of experts in order to separate the evidence in a case from the application of the law to it. Unfortunately, this necessity was not foreseen by Congress and the re-engineering of the system caused by the disbandings occurred through ad hoc responses to decisions of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for Veterans Claims (CAVC). This has produced a disjointed system that unnecessarily fragments the evidence-gathering system in a way that is both inefficient and prone to error.
The outcome is a system in which the most common errors are due to inadequate medical evidence.
Unfortunately, there is no reform on the horizon that would replace the current system. Until reform is enacted, producing a high-quality medical opinion that is adequate for making a final decision on a veterans benefits claim will often require a bit of mind reading on the part of the examiner to anticipate all the information that an adjudicator might need.
The Season of Giving Could Lead to a Court Martial - Washington, D.C.
Most gift giving frowned upon and punishable in the military
The
exchange of gifts is a favorite holiday tradition for many. A less
popular and less known holiday tradition, however, involves the
punishment of service members who stray from military rules by giving
their superiors a Christmas or Hanukkah gift. This holiday season,
service members who attempt to give official superiors even moderately
priced gifts could be charged with disobeying a lawful regulation in
violation of Article 92 of the Uniform Code of Military Justice and face
court martial.
For military personnel, giving during the Christmas and Hanukkah season is considered “occasional basis” giving. Subordinates are allowed to occasionally give gifts with a market value up to $10 to an official superior. Subordinates are also allowed to give superiors food or drinks that are offered to other personnel or personal hospitality, such as an inexpensive bottle of wine offered at their home. These giving limits often paint the military with Grinch like holiday cheer, but these policies are in place to protect subordinates against favoritism.
“The military is very strict about these policies. The reasoning is it prevents someone from buying a really lavish gift for their superior in return for more favorable evaluations, orders and overall treatment,” said Lisa M. Windsor a retired Army colonel and JAG Attorney who is of counsel to Tully Rinckey PLLC.
The strict giving restrictions do not apply on gifts given by superiors to subordinates but it should be recognized that all Department of Defense employees cannot accept or seek “anything of value to influence any official act.” The giving rules for the military can be found in the Joint Ethics Regulation (JER, DODD 5500.7-R). Federal employees are in the same boat as service members when it comes to gift giving. The JER transfers much of the same language on gift giving restrictions from the Code of Federal Regulation (C.F.R. Parts 2635.201-2635.304)
“The message is beware even of your best intentions. The best gift any superior can receive is a model subordinate that obeys orders and can be counted on,” said Ms. Windsor
For more information please contact Randy Simons at (518) 755-2789 or via email at rsimons@fedattorney.com
For military personnel, giving during the Christmas and Hanukkah season is considered “occasional basis” giving. Subordinates are allowed to occasionally give gifts with a market value up to $10 to an official superior. Subordinates are also allowed to give superiors food or drinks that are offered to other personnel or personal hospitality, such as an inexpensive bottle of wine offered at their home. These giving limits often paint the military with Grinch like holiday cheer, but these policies are in place to protect subordinates against favoritism.
“The military is very strict about these policies. The reasoning is it prevents someone from buying a really lavish gift for their superior in return for more favorable evaluations, orders and overall treatment,” said Lisa M. Windsor a retired Army colonel and JAG Attorney who is of counsel to Tully Rinckey PLLC.
The strict giving restrictions do not apply on gifts given by superiors to subordinates but it should be recognized that all Department of Defense employees cannot accept or seek “anything of value to influence any official act.” The giving rules for the military can be found in the Joint Ethics Regulation (JER, DODD 5500.7-R). Federal employees are in the same boat as service members when it comes to gift giving. The JER transfers much of the same language on gift giving restrictions from the Code of Federal Regulation (C.F.R. Parts 2635.201-2635.304)
“The message is beware even of your best intentions. The best gift any superior can receive is a model subordinate that obeys orders and can be counted on,” said Ms. Windsor
For more information please contact Randy Simons at (518) 755-2789 or via email at rsimons@fedattorney.com
VA Law: The Office of Regional Council Newsletter
So Your Patient Wants A Medical Statement?
"How the Veteran is requesting the medical documentation be provided will dictate if, and how, we can respond."
