"This is — to be kind — a train wreck,” said Rep. Phil Roe, R-Tenn., the chairman of the House Committee on Veterans Affairs.
Shelley Roundtree departed the U.S. Army in 2013 after seeing friends and fellow soldiers die in combat during his tour in Afghanistan. He was committed to transitioning to civilian life, and one of his first steps was to enroll in college with tuition and housing benefits he'd earned under the GI Bill.
Roundtree, 29, began studying marketing at Berkeley College in Midtown Manhattan. He dreams of working in the fashion industry, and he's close to graduating — but now there's a serious obstacle.
The Department of Veterans Affairs is suffering from a series of information technology glitches that has caused GI Bill benefit payments covering education and housing to be delayed or — in the case of Roundtree — never be delivered.
"I’m about to lose everything that I own and become homeless," Roundtree said. "I don’t want to be that Veteran on the street begging for change because I haven’t received what I was promised."
Without the GI Bill's housing stipend, Roundtree was kicked out of his apartment and is now living on his sister's couch, miles from school, where he feels like a burden on his family. The new living situation required him to move all his belongings into a storage container, which he can no longer afford. Now all of his possessions are in danger of being auctioned off by the storage facility.
Roundtree said that because of his extremely strained finances, he is forced to choose between spending money on public transportation to get to his marketing classes or buying food — not both. At the end of the day, the Veteran said he often makes himself go to sleep hungry.
"It’s just confusing," said Roundtree. "Who is there for us? Who is representing us? Who is helping us? Who is doing what they need to do to better the situation for Veterans?"
There are many Veterans, like Roundtree, across the country who are still waiting for VA to catch up with a backlog created after President Donald Trump signed the Forever GI Bill in 2017. The landmark piece of legislation greatly expanded benefits for Veterans and their families, but it did not upgrade the VA's technical capabilities to account for those changes.
While it is unclear how many GI Bill recipients were affected by the delays, as of Nov. 8, more than 82,000 were still waiting for their housing payments with only weeks remaining in the school semester, according to the VA. Hundreds of thousands are believed to have been affected.
The cause of the difficulty lies within VA’s Office of Information Technology, which was tasked with implementing a change in how the housing allowance was calculated, the agency said. The Forever GI Bill required that housing would be based on the ZIP code of where a Veteran went to school, not where he or she lived.
Issues that arose when VA attempted to stress-test their antiquated system, and a contract dispute over the new changes, meant VA waited until July 16 to tell schools to begin enrolling students, according to Veteran advocacy groups. Many colleges and universities waited, however, because the VA told them that they would need to re-enter their student Veterans' certifying information either way.
“That’s when the floodgates opened,” said Patrick Murray, the deputy director of the Veterans of Foreign Wars. “With all the delays trying to get the upgrades in the ZIP code processing, they suddenly got all their enrollments, which usually come during the spring across the summer. Instead they all came a few weeks before the fall semester, and they couldn’t keep up.”
A VA spokesperson told NBC News by email that "further system changes and modifications are being made and testing is ongoing on the IT solution" to fix the delay in monthly stipend payments.
"These changes have led to processing issues," a VA spokesperson wrote, referring to the GI Bill changes, "and VA is committed to providing a solution that is reliable, efficient and effective."
At the end of August, Veterans Benefits Administration had nearly 239,000 pending claims — 100,000 more than at the same point in 2017. As school began, thousands of students faced dire circumstances and some faced eviction, getting kicked out of school or taking on loan or credit card debt.
As the problem appears to have no clear solution, the House Committee on Veterans’ Affairs is holding a hearing Wednesday to investigate the matter.
The contractor hired by the VA to update its system for the Forever GI Bill, Booz Allen Hamilton, a multibillion-dollar information technology company, will be called to testify, a committee aide said. They will be joined by Under Secretary for Benefits Dr. Paul Lawrence and Director of the Education Service Robert Worley. A witness from the VA’s Office of Information and Technology will also be called.
"This is — to be kind — a train wreck,” said Rep. Phil Roe, R-Tenn., the chairman of the Veterans' affairs committee. “It’s really frustrating the amount of money that Congress has appropriated for Veterans, and this is the way VA has rolled it out. This discussion started over a year ago.”
Roe’s office recently visited the VA’s regional processing office in Muskogee, Oklahoma, along with Democratic and Senate Committee staffers and Sen. James Lankford, R-Okla.
In a Nov. 5 letter to Secretary of Veterans Affairs Robert Wilkie, Roe said that employees at the processing center told the group that IT systems at the office froze and crashed so often that tasks that once took five minutes now required 45 minutes. Computers often suffered a “blue screen of death,” which required restarting machines, and “managers had to write off 16,890 man hours due to system crashes or latency issues.”
“While Committee staff never witnessed a ‘blue screen of death,’” the letter said, “they did witness the system crash no fewer than five times in a 10 minute period.”
The VA declined to share how much the IT system failures, overtime payments and the 202 additional workers hired to address these problems have cost taxpayers.
As some Veteran advocates point out, this is not an issue that came as a surprise.
At the July 17, 2017, hearing in the House Committee on Veterans' Affairs — before the bill was passed into law — Deputy Under Secretary for Economic Opportunity Curtis Coy highlighted this as his core worry in response to one of the few questions asked during the hearing.
“My biggest concern is two words: IT,” said Coy at the time. “We have an IT system in much or almost all of these sections that requires some degree of changes.”
After Coy retired this year, the VA cut his position and the Office of Economic Opportunity. Multiple Veteran Service Organizations said the loss of this role, as well as the office, meant that there was no one left at the VA to communicate the issues to Veterans or to lobby higher-ups about the GI Bill issues.
That’s not to mention the huge number of posts that remain unfilled at the agency. More than 45,000 jobs sit vacant at the VA, according to the agency’s own numbers, and it has not had a permanent chief information officer since LaVerne Council departed the office after Trump’s election.
"Right now Secretary Wilkie and Dr. Lawrence have only been on the jobs for months,” Murray said. “People have been coming in and out of the VA like it’s a revolving door, and this is another example where a lack of consistent leadership causes these problems.”
But Veterans like Roundtree are less concerned about the leadership at the VA — they just want to know if they can depend on the money they earned under the GI Bill.
And advocates are similarly concerned as it remains unclear if the VA will be able to catch up before January, or if it will be inundated with new requests next year and fall even further behind.
“I don’t see that there is an immediate fix, and I don’t see how this is going to be addressed in the spring or summer semesters,” said Tanya Ang, the policy and outreach director of Veterans Education Success. “This needs to be something that has a greater focus on it for a lot longer."
Today the U.S. Department of Veterans (VA) announced that it is prioritizing Veterans benefits appeals, effective Nov. 1, for victims in the Northern Mariana Islands who have been impacted by Super Typhoon Yutu.
VA’s Board of Veterans’ Appeals has determined that the significant effects of Super Typhoon Yutu were sufficient cause for the Board to advance the appeals for the Northern Mariana Islands municipalities determined to be disaster areas by the Federal Emergency Management Agency (FEMA).
“During this season of intense weather systems, VA is continually assessing how we can best support our Veterans as they recover from natural disasters,” VA Secretary Wilkie said. “Just as it did with hurricanes Florence and Michael, VA’s Board of Veterans’ Appeals is prioritizing the benefits appeals claims process because it is the right thing to do.”
By regulation, the Board may advance appeals on docket (AOD) by a motion of the chairman if sufficient cause is shown. All Veterans and other appellants with an appeal currently pending before the Board whose addresses of record are in one of the affected municipalities will have their appeal automatically advanced on the Board’s docket.
No action from Veterans or appellants are needed if their addresses are current. The AOD for this storm is expected to last until April 30, 2019, and the Board will reassess the situation after that period has ended. For a comprehensive list of all affected AOD areas, visit: www.bva.va.gov/Natural_Disasters.asp.
In addition to Super Typhoon Yutu, VA also concluded that the significant effects of hurricanes Florence and Michaelwere sufficient cause for the Board to advance the appeals for counties in Florida, North Carolina, South Carolina and Georgia found to be disaster areas by FEMA.
The mission of VA’s Board of Veterans’ Appeals is to conduct hearings and decide disability benefits appeals for Veterans in a timely manner. For more information about the Board, visit www.bva.va.gov/.
The VA offers protections for disability ratings that have been in effect for certain periods of time. Until these regulatory protections kick in or your ratings become permanent, VA may severe or reduce a Veteran’s disability rating based on specific findings.
WHEN CAN THE VA SEVER SERVICE CONNECTION?
Severance is when the VA tries to revoke a finding of service connection. If the VA tries to sever service connection, it will notify the Veteran of the proposed action and give him or her 60 days to submit evidence to show that service connection should not be severed and 30 days to request a hearing. If the Veteran does not submit evidence within that 60-day window or request a hearing within 30 days, the VA will issue a final decision.
In cases of severance, Veterans are given added protection if they have been service-connected for the condition for 10 years or more. Under 38 C.F.R. 3.957 in the VA code of regulations, a Veteran’s service-connected disability that has been in effect for ten years or more “will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.” The ten-year period is calculated from the effective date of the award for service connection. For example, if a Veteran was granted service connection for a low back injury effective October 20, 1980 and the VA issued a decision dated August 29, 2018 attempting to sever service connection, the VA would have to abide by the ten-year rule above.
WHEN CAN THE VA REDUCE MY DISABILITY RATING?
Veterans with disabilities that are not considered permanent may be sent for future VA examinations in order for the VA to evaluate the severity of those disabilities and rate them appropriately. If the VA finds that a Veteran’s condition has improved, it can reduce a Veteran’s disability rating.
The VA is required to follow the same process for reductions as they are for severances. This means that if the VA wishes to reduce a disability rating, they must issue notice of the proposed reduction and give the Veteran 60 days to submit evidence and 30 days to request a hearing. However, there is one major difference between the process of a reduction and severance. When the reduction would not change the actual amount of compensation that a Veteran is receiving, the VA does not have to issue notice of the reduction.
WHEN DOES MY VA RATING BECOME PERMANENT?
An easy way to tell if your VA disability ratings are permanent is if the VA has deemed you to be totally and permanently disabled. This means that the VA does not see a reasonable chance of your conditions improving. However, if you are not “permanent and total,” the VA has regulatory protections for reductions of service-connected disabilities.
Under 38 C.F.R. 3.951 (b), the VA cannot reduce a rating that has been “continuously rated at or above any evaluation of disability for 20 or more years” unless it is shown that the rating was based on fraud. So, for example, if you are rated at 20% for a right knee disability from January 1994 and the VA proposes to reduce your right knee rating to 0% in March 2017, they can only do so if they find that your initial 20% rating was based on fraud. If they cannot show that, they cannot reduce your 20% rating. This rule protects disabilities that have been increased over the span of 20 years or more as well. For example, the Veteran who receives 20% for his right knee disability from January 1994 was increased to 30% in 2006. In March 2017, the VA proposes to reduce his 30% to 0%. Although the rating for the right knee condition changed between the initial grant and the proposed reduction, he is still protected under the 20-year rule.
WHAT IF I HAVE TDIU?
For Veterans that have been granted entitlement to Total Disability Based on Individual Unemployability (“TDIU”), the VA can only reduce that rating if “actual employability is established by clear and convincing evidence” (38 C.F.R. 3.3.43(c)). What that means is the VA can only sever your TDIU if you have been found to be employable. For Veterans with TDIU, the VA will send out a yearly employment questionnaire to see if a Veteran participated in substantially gainful employment during that year. In order for the employment to be substantially gainful, a Veteran would have had to be employed for 12 months or more and would have had to earn over the federal poverty threshold.
Check out our video on Permanent and Total disability HERE.
Under certain conditions, VA may reduce your disability rating. Legally, VA is entitled to rating reductions but there are rules they must follow when doing so. But unfortunately, mistakes are still made and VA often does not get rating reductions quite right. So, in this post, we’ll discuss what VA can and cannot do when reducing your rating and what you should do if VA sends notice that your rating may be adjusted.
WHY DOES VA REDUCE RATINGS?
The idea is that some service-connected conditions will improve over time or with treatment and VA wants to make sure they are compensating each Veteran according to their present level of disability. For example, if you had service-connected cancer and but it goes into remission, VA would propose a rating reduction because, presumably, your cancer is less disabling – i.e. has less of an impact on your ability to function in life and at work.
VA normally starts the process of reducing a rating under two circumstances:
- Scheduled re-examinations. Usually, VA will evaluate (after you are granted service-connection) whether your disability should be scheduled for a future re-examination (a C&P exam) to determine if your benefits need to be adjusted. VA usually makes this determination if they believe your disability can be expected to improve. Typically, the first re-exam will be scheduled 2-5 years from the date of your first Rating Decision.
- Evidence of change in condition. VA can also order a re-examination at any time if there is new, relevant medical evidence that your disability has improved.
But disabilities, as you likely know, are complicated. Symptoms of a disability may temporarily decrease but resume at baseline level soon after. Or, for example, symptoms may improve but not enough to significantly (or, as VA would say, materially) improve your ability to function under the ordinary stressors of life or work. So VA has strict rules guiding the process of rating reductions. But, those guidelines are not always applied correctly, so it can help to have an idea of what VA is required to do.
GENERAL RULES VA MUST FOLLOW FOR RATING REDUCTIONS
There are a number of things VA must do when reducing ratings under any circumstances:
- A proposed rating (as well as a final decision) must be based on a review of the Veteran’s entire medical history
- VA must show that there has been an actual change in the disability since the last rating decision
- VA must show that change in the disability reflects material improvement in the Veteran’s ability to function under the ordinary conditions and stressors of life and work
- Examination reports must be based on thorough examinations
Additionally, the procedural manual (M21) that VA adjudicators use to process claims states that VA must outline the time period during which your condition is said to have (materially) improved.
WHAT TO DO IF YOU GET NOTICE OF A POTENTIAL RATING REDUCTION
VA is required to send a letter proposing the reduction of your benefits, if the decrease will affect the amount of monthly compensation you receive. The letter is not a final VA decision and so cannot be appealed, but VA gives you the opportunity to respond to the proposal by submitting evidence and/or attending a hearing.
From the date of the letter, you have 60 days to submit evidence if you believe the reduction is not warranted. Within the first 30 days of the 60-day period, you have the option to request a hearing to be conducted by VA personnel unrelated to the proposed reduction. VA must consider evidence you submit during this period (including the transcript of the hearing, if you choose to attend one) and all previous evidence and medical records associated with your file.
What are some types of evidence you might submit? You do not need to submit treatment records from your VA Medical Center as VA already has access to those documents. But it can be helpful to submit a medical opinion from an outside, independent doctor if your Compensation and Pension exam was not favorable. Additionally, you may want to submit statements from family, friends, or employers who have observed your ability to function in daily life and/or at work. If you choose not to submit evidence within the 60-day period, VA will issue a final decision reducing your rating.
If, after 60 days or the review of your submitted evidence, VA sends a final decision that reduces your rating, you can file an appeal with a Notice of Disagreement form.
For certain special cases, there are rules in place that protect Veterans from rating reductions or severance of their disability benefits.
Stabilized Ratings: 5 Years or more
Any rating that has remained at the same level for 5 years or longer is considered “stabilized.” In addition to the general rating reduction rules that VA must follow (see above), VA must show sustained improvement in your condition.
What does sustained improvement mean? Essentially it means one of two things: Either 1) VA cannot use just one re-examination (C&P exam) to show ‘sustained’ improvement, rather they must show through medical records as well as a C&P re-exam that you are not just temporarily experiencing improvement. Or, 2) VA must show that the evidence in your file predominantly demonstrates ‘sustained.’
VA must provide an explanation of why they are reasonably certain your condition will continue to show ‘sustained’ improvement.
100% (Total) Ratings
VA can reduce a total rating (that is, a rating of 100%) only if there is material improvement in the Veteran’s condition. In addition to the general rating reduction rules, VA must provide evidence that your condition has improved such that there has been an observable change in your ability to function under the conditions of daily life.
Continuous Ratings: 20 years or more
Conditions that have been rated at or above a certain rating level for 20 years or longer are considered “continuous.” VA cannot reduce a continuous rating below the original rating level (unless they determine the rating was based on fraud). For example, if a Veteran’s service-connected PTSD was originally rated 30% disabling and fluctuated between 30% and 70% over the next 20 years (without dipping below 30%), VA could not reduce the rating to below 30 percent.
WASHINGTON (NEXSTAR) -- Some Veterans aren't getting their education and housing benefits and Congress wants to know why. A House committee says it will hold a hearing, after the election, and Veterans’ advocates say the VA needs to be held accountable.
The American Legion says some student Veterans are facing eviction because the VA is behind on GI Bill payments.
”Over 200,000 Vets with late payments.”
John Kamin with the American Legion says some monthly housing payments for student Veterans have been delayed up to 90 days.
“Left moving back in with their parents or couch surfing because the VA was not able to honor these Veterans and their service,” said Kamin.
On top of that, he says some schools won't let Veterans graduate or register for classes, because their tuition is late.
The VA acknowledges it's behind on the payments. In a statement, a spokesperson told us VA employees are working overtime to process the claims, and it has brought on 200 additional people to speed up the process.
“It's not enough. Absolutely not. We're beyond the point where we can take their word for it. we need to see executive action. Why has the secretary not spoken up about this?” asked Kamin.
The VA faced similar problems in 2009 but issued emergency payments to Veterans.
Congressman Jim Banks, serves on the Veterans Affairs committee. He says the VA needs a technology overhaul to keep up with the payments and other services.
“We'll get to the bottom of the matter. We'll do everything we can to see that it's fixed,” said Banks.
Kamin argues the VA knew its technology needed an update.
“The VA did not take it to be a serious problem and that's why we're where we are…Vets are left trying to figure out how to live their lives,” said Kamin.
Banks vows to hold the VA accountable but Kamin is skeptical, and already worried about payments for the upcoming spring semester.
The House Veterans Affairs Committee hearing looking into the issue is set for Nov. 14.
The VA says Veterans who aren't receiving their payments and need help to call its customer service number: 888-442-4551.
The American Legion also urges Veterans who are struggling to contact their offices.
According to the VA, these changes will ensure that only those with a genuine need receive these benefits.
There were four major changes to the qualifications for these benefits:
- Establishment of a clear net-worth limit for income and assets
- Establishment of a 36-month look-back period to review asset transfers at less than fair market value that may reduce net worth
- Establishment of up to a five-year penalty period to be calculated based on the portion of the covered assets that would have made net worth excessive, and
- Updates to medical expense definitions for consistency with VA internal guidelines.
Establishment Of A Clear Net-Worth Limit
Previously, the VA used a complicated formula to compute net worth. The new regulations create an arbitrary amount. VA says this will make computation easier, faster, and fairer.
Under the new regulations, the net worth limit for 2019 is $123,600. This limit will be increased by the same percentage as the annual social security COLA increase, if there is one. A primary residence does not count as part of net worth, also a mortgage does not count as a liability.
Establishment Of A 36-Month Look-Back Period
This rule should keep people from hiding money in order to qualify for benefits. Some bad actors would sell stocks or other assets at a loss in order to qualify for pension benefits, others would "gift" money to a friend or family member in order to bring their net worth down to the qualifying limits.
The new rule requires VA to look at an applicant's finances for the 36 months prior to the application for pension to determine if there are any financial irregularities.
Establishment Of Up To A Five-Year Penalty Period
This rule is related to the 36-month look-back period.
If an applicant transfers money to a non-qualified source as determined above, the VA will withhold the pension based on the amount of money transferred. So, if an applicant transferred $12,000 to an uncle in order to qualify for pension and their monthly pension amount is $2,000, the VA will withhold 6 months of pension ($2,000 x 6=$12,000). This new rule allows the VA to withhold pension for up to 5 years in such cases.
Updates To Medical Expense Definitions
Medical costs have long been used in computing net-worth for pension benefits, however there has been much argument as to what really constitutes a "medical cost".
Previously, the VA didn't include some medical care such as custodial care, assistance with getting around in one's home, and in-home supervision. While this type of care isn't "medical" by definition, it is related to an underlying medical condition, therefore the VA has added it as a cost.
These new rules add these and other types of types of care as qualifying expenses.
Veteran's pension is a monthly payment to certain Veterans with income below levels. The Veteran must have served at least one day during a wartime period and be:
- 65 years or older, or
- permanently and totally disabled, or
- in a nursing home, or
- receiving social security disability, or
- receiving supplemental security income
See our Veterans Pension page for more details.
Survivor's pension, also known as the "death pension", is paid monthly payment to low-income, un-remarried surviving spouses and certain children of deceased wartime Veterans.
See our Survivor's Pension page for more details.
Parents’ Dependency and Indemnity Compensation (DIC)
Parents' DIC is a tax-free income-based monthly benefit for the parents, or parent, of a military service member or Veteran who has died from:
- A disease or injury incurred or aggravated while on active duty or active duty for training, OR
- An injury incurred or aggravated in line of duty while on inactive duty for training, OR
- A service-connected disability.
“The amended regulations bring consistency to the pension process and ensure benefits are available for Veterans and survivors with financial need,” said VA Secretary Robert Wilkie. “They will help maintain the integrity of and provide clarity to our needs-based pension program.”
The Department of Veterans Affairs recently announced that it has amended its regulations governing entitlements to VA pension and Parents’ Dependency and Indemnity Compensation. The changes are meant to ensure that only Veterans that legitimately need the benefits receive them.
VA’s pension program provides monthly benefit payments to eligible wartime Veterans and their survivors with financial need.
The pension regulations, which were updated Oct. 18, cover the following:
- Establish a clear net-worth limit for income and assets for Veterans to qualify for pension,
- Establish a 36-month look-back period to review asset transfers at less than fair market value that reduce net worth and create pension entitlement,
- Establish up to a five-year penalty period to be calculated based on the portion of the covered assets that would have made net worth excessive, and
- Updates medical expense definitions for consistency with VA internal guidelines.
According to the VA’s pension website, the pension “helps Veterans and their families cope with financial challenges by providing supplemental income through the Veterans Pension and Survivors Pension benefit programs.”
Eligibility requirements are defined as follows as of the time of this writing:
- Veterans must have at least 90 days of active duty, including one day during a wartime period. If the active duty occurred after September 7, 1980, the Veteran must have served at least 24 months or the full period that he or she was called up (with some exceptions).
Eligible Veterans must also be:
- Age 65 or older with limited or no income OR
- Totally and permanently disabled, OR
- A patient in a nursing home receiving skilled nursing care, OR
- Receiving Social Security Disability Insurance, OR
- Receiving Supplemental Security Income
“The amended regulations bring consistency to the pension process and ensure benefits are available for Veterans and survivors with financial need,” said VA Secretary Robert Wilkie. “They will help maintain the integrity of and provide clarity to our needs-based pension program.”
WASHINGTON — Veterans Affairs officials will accelerate appeals claim processing for individuals affected by the recent hurricanes that lashed the southeastern United States, calling it another way to help those Veterans in need.
The move will affect any Veterans in Florida, North Carolina, South Carolina and Georgia who live in counties declared disaster areas by the Federal Emergency Management Agency. VA officials did not say how many of the more than 300,000 pending appeals currently in the system will be included in the new push.
In a statement, VA Secretary Robert Wilkie said speeding up the claims process “for those Veterans and their families affected by hurricanes Florence and Michael is the right thing to do.”
At least 53 people were killed as Hurricane Florence hit the eastern seaboard in early September. A month later, Hurricane Michael made landfall and resulted in at least 50 deaths across several states.
VA health and benefits services in those areas were temporarily disrupted by the powerful storms, but officials have largely returned to normal operations in the weeks since. At the height of the hurricanes, some infirm Veterans were evacuated to facilities in different states while VA contracted with local doctors and pharmacies to handle other critical needs.
Veterans eligible for the faster appeals processing will not have to take any action to accelerate their claims. Board of Veterans’ Appeals officials said they will move ahead any cases with addresses in the affected region, and continue to fast-track those claims for the next six months.
The backlog of appeals claims has been a recurring complaint from lawmakers and Veterans advocates in recent years. Cases typically take several years to wind through the system, with some topping five years or more.
After congressional intervention, VA officials introduced a new Rapid Appeals Modernization Program with wait times under three months for case completion. But many Veterans have been slow to embrace that option, leaving their cases to wind through the traditional process.
A list of counties affected by the new announcement is available at the Board of Veterans Appeals’ web site.
Of all the disabilities listed on the VA’s Schedule for Rating Disabilities, the ratings involving the knee are one of the most difficult for Veterans to understand – and for the VA to get right. Much of the confusion stems from the fact that a Veteran may be able to receive multiple ratings for the same knee, depending on the severity of his or her condition. In previous posts, we discussed ratings for limitation of flexion and extension, instability, and meniscus injuries. Today we are going to discuss the ratings available for knee replacements.
Why Multiple Ratings?
Before we get into knee replacements specifically, it is important to understand why exactly it is that multiple ratings are allowed for the knee. As explained in the previous posts in this series, the “Rule against Pyramiding” and the rule that the VA must maximize benefits for a Veteran work together. This means that separate disability ratings may be assigned to different conditions where none of the symptomatology for the separately rated conditions is duplicative or overlapping. This is particularly important for the knee, where one injury may cause many different issues, and these separate manifestations of that injury may all be entitled to separate ratings.
Total knee replacements are rated under DC 5055. A Veteran will receive a 100 percent rating for a service-connected total knee replacement for 1 year following the implantation of the prosthesis. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion should be rated by analogy under DCs 5256, 5261, or 5262. The minimum rating for a knee condition status post-knee replacement is 30 percent.
Convalescence ratings (also known as temporary 100% ratings) are an important part of the discussion of total knee replacements. Convalescence is defined as the act of regaining or returning to a normal or healthy state after a surgical operation or injury. The 1 year period for the 100 percent rating under DC 5055 begins after the expiration of any convalescence ratings. For example, a Veteran enters the hospital on 5/20/17 for a total knee replacement and is released on 6/2/17. His convalescence rating will expire on 6/30/17 and his 100 percent rating under DC 5055 will begin on 7/1/17. It is important to note that a Veteran may be eligible for a longer convalescence rating depending on his or her recovery from the surgery. There is no requirement that the Veteran must be confined to his or her home, but there does need to be medical evidence that a longer convalescence is required. The best evidence for this is a note from the Veteran’s doctor. In fact, a Veteran undergoing any surgery for a knee condition should always ask his or her doctor for a note regarding the applicable period of convalescence and be sure to get notes regarding any extensions for that convalescence period. A Veteran can receive extensions for his or her convalescent rating for a total duration of up to 6 months, in increments of 1, 2, or 3 months. After the initial 6 months, a Veteran can receive additional extensions of 1 to 6 months for “severe postoperative residuals” or if he or she has a “major joint immobilized by a cast.” This means that a Veteran can technically have up to 1 year of convalescence ratings.
Once the Veteran’s convalescence period is up, and his 1-year 100 percent rating under DC 5055 is up, the VA will reevaluate the Veteran’s knee and rate the Veteran for any postoperative residuals. Typically, the Veteran will be scheduled for a C&P examination for this purpose. If a Veteran has chronic residuals consisting of severe painful motion or weakness in the affected extremity, he or she should be awarded a 60 percent rating. Unsurprisingly, the term “severe” is not defined in the regulation. Therefore, it is the best practice to always argue that residuals are severe. A Veteran is competent to comment on his or her observable symptoms, so the Veteran should submit a statement detailing the day-to-day residuals and how they affect functioning. As noted in past posts regarding rating knee conditions, a Veteran should submit any lay statements he or she can from people who have witnessed these severe postoperative residuals. A Veteran may also want to have an examination with a private doctor who can comment on the severity of his or her residuals, especially if the C&P examination is not favorable.
As noted above, the minimum rating for a knee condition status post knee replacement is 30 percent. If a Veteran has intermediate degrees of residual weakness, pain, or limitation of motion, the condition should be rated analogously under DC 5256, 5261, or 5262. The symptoms do not need to be exact, just “closely analogous.” It is important to note that the VA cannot require additional criteria when determining the proper rating under DC 5055. For example, they cannot state that a certain limitation of motion or gait alteration is required.
One last important thing to remember is that as of July 16, 2015, DC 5055 applies only to total knee replacements. The previous version of the regulation also applied to partial knee replacements. If a Veteran has a claim for a partial knee replacement that was filed prior to July 16, 2015, DC 5055 will still be applied. For Veterans whose claims were filed after July 16, 2015, they should still argue that a partial knee replacement should be evaluated analogously under DC 5055.
Many student Veterans have been waiting longer than normal for their GI Bill benefits this semester, as the Veterans Affairs Department works through a backlog of claims affecting thousands of students.
Meanwhile, legislation that could have helped these students is stalled in the Senate, and Veteran education advocates, along with some members of Congress, are calling for action.
“There is significant concern about the delayed Forever GI Bill benefit payments,” said Ashlynne Haycock, deputy director of policy and legislation for the Tragedy Assistance Program for Survivors, one of the organizations that helped push the legislation through the House of Representatives last spring. “We all knew there would be a wait, but clearly this extended delay points to the fact that we must get the Senate to move on the SIT-REP Bill … to protect students and Veterans.”
The legislation, which passed the House unanimously in May, would require schools to adopt a policy stating they will not deny access to classes or facilities, impose late fees, or make students pay out-of-pocket because of unpaid balances, as long as the student has provided a certificate of eligibility for VA benefits.
This would ensure that no GI Bill users are punished by their schools because of VA processing delays. But since the legislation hasn’t passed, some organizations say their members are being charged late fees or barred from registering for next semester’s classes.
The bill, which has also garnered the support of Veterans of Foreign Wars and the American Legion, was referred to the Senate Committee on Veterans’ Affairs in late May, but there has been no movement on it since. A staffer for Committee Chairman Sen. Johnny Isakson, R-Ga., said their office has reached out to Veterans’ groups and schools impacted by these policies and is currently working through the legislation.
Rep. Phil Roe, R-Tenn., chairman of the House Committee on Veterans Affairs, said he urges his Senate colleagues to quickly pass the bill and President Trump to sign it into law.
“This legislation is critical to protecting our student Veterans from situations like the one we (currently) face,” Roe said in an email.
As of Wednesday, the VA has 120,000 education claims pending, most of which are for Post-9/11 GI Bill payments, a spokesman for the agency said in an email. Approximately 1,200 claims have been pending for 60 days or more.
Original claims for first-time GI Bill users are taking an average of 33 days to process, and supplement claims are averaging 23 days, which is higher than the VA’s goal to process these types of claims in 28 and 14 days, respectively. One reason for the backlog is that the VA is still working to get its technology systems up to date with the new Forever GI Bill law, which was supposed to change how housing stipends are calculated for GI Bill users starting Aug. 1.
“VA education benefit claims processing employees are working mandatory overtime, and VA has augmented its processing workforce by 202 people to help reduce processing times," the spokesman said. "With these measures in place we are processing an average of more than 16,000 claims per day.”
He said the VA expects to get the overall number of outstanding education claims under 100,000 in early November.
It’s difficult to determine just how common it is for schools to penalize students whose VA payments don’t come in by their deadlines. In a recent Military Times survey of around 500 colleges and universities, the vast majority of colleges said they have special policies for students whose VA or Defense Department education benefits are delayed. In many cases, these policies protect students from incurring late fees or being dropped from classes for nonpayment.
In a letter to schools last week, VA Director of Education Service Robert Worley asked that campuses not penalize students if they have not received tuition and fee payments from the VA.
“Late payments are likely due to VA processing delays and certainly are not the fault of the student. We ask for your patience as we work to resolve the ongoing challenges," he wrote. “If your school is waiting for tuition and fee payments for GI Bill students, we respectfully urge you to continue to work with the students so they may continue their academic pursuits.”