1.    Sources of law. Federal veterans benefits laws and regulations are at 38 U.S.C. § 1 et seq. and 38 C.F.R. § 1 et seq. State veterans laws and rules are at Government Code § 434.001 et seq. (Texas Veterans Commission) and 40 Texas Administrative Code Part 5 (Veterans Land Board) and Part 15 (Texas Veterans Commission). Additional statutory provisions regarding veterans are found in 68 separate Texas statutes. In this chapter, when information has been taken from statutes, rules, or cases, the statutes, rules, or cases will usually be cited below the information toward the left margin.

2.    Agencies that administer programs for veterans. At the federal level, the Department of Veterans Affairs administers programs for veterans. The Texas counterparts are the Texas Veterans Commission and the Veterans Land Board.

3.    Useful websites. Useful websites include these:

· U.S. Department of Veterans Affairs: www.va.gov

· Texas Veterans Commission: www.tvc.state.tx.us

· Court of Appeals for Veterans: www.vetapp.uscourts.gov

· Administration on Aging: www.aoa.dhhs.gov/

· National Library of Medicine: www.nlm.nih.gov

(For medical publications about disabilities and health matters)

· House Committee on Veterans Affairs: www.veterans.house.gov

· Senate Committee on Veterans Affairs: www.senate.gov/veterans

4.    Additional sources of advocacy. There are numerous sources of advocacy for veterans. Most counties in Texas have a county service officer. Office hours will vary. The list of county service officers can be downloaded from www.tvc.state.tx.us/cso.htm on the Internet. If a county has not appointed a veterans county service officer, the Texas Veterans Commission may have a Veterans Counselor available – the foregoing website will show that. There are also numerous non-governmental organizations that provide advocacy for veterans. Some of these organizations are specific to particular cohorts of veterans (e.g. Vietnam Veterans, Purple Heart Awardees). Also, experience has shown that the extent of advocacy available through these non-governmental organizations varies from office to office. These non-governmental organizations include: The American Legion; American G.I. Forum of the U.S.; American Red Cross; AMVETS; Desert Shield/Desert Storm; Disabled American Veterans; Korean War Veterans Association, Inc.; Military Order of the Purple Heart; Non-Commissioned Officers Association; Paralyzed American Veterans; Pearl Harbor Survivors Association; Retired Enlisted Association; Retired Officers Association; Veterans of Foreign Wars; Vietnam Veterans Foundation of Texas; and Vietnam Veterans of America. Further contact information for each of these organizations is available at www.tvc.state.tx.us/organiza.htm on the Internet.

5.    Who can provide representation. Veterans county service officers and accredited non-governmental veterans organizations are recognized by the Veterans Administration (VA) to provide representation. 38 C.F.R. § 14.628. An attorney can represent a veteran before the VA. The attorney should have a signed consent from the client in order to access the client’s file. 38 C.F.R. § 14.629(c)(1).

6.    Other individuals can be authorized to provide representation before the VA. The applicable regulation states:

§ 14.630 Authorization for a particular claim.

Any person may be authorized to prepare, present, and prosecute a particular claim. A proper power of attorney, and a statement signed by the person and the claimant that no compensation will be charged or paid for the services, shall be filed with the office where the claim is presented. A signed writing, which may be in letter form, identifying the claimant and the type of benefit or relief sought, specifically authorizing a named individual to act as the claimant’s representative, and further authorizing direct access to records pertinent to the claim, will be accepted as a power of attorney. A person accredited under this section shall represent only one claimant; however, in unusual circumstances, appeal of such limitation may be made to the General Counsel.

38 C.F.R. § 14.630 (citation to Code of Federal Regulation section).

7.    The veterans service organizations identified above do not charge for their representation of veterans before VA Regional Offices and before the Board of Veterans’ Appeals. Moreover, it is the duty of the VA to assist the veteran in developing the claim. 38 C.F.R. § 3.103(a). Indeed, several sections of the VA Adjudication Procedure Manual make clear that the VA must consider not only issues raised by the veteran, but also issues that can be inferred from the file. VA Adjudication Procedure Manual M21-1. For all these reasons, if a veteran has a claim before a VA Regional Office or before the Board of Veterans’ Appeals, the best service of a Benefits Counselor likely will be to make sure the veteran receives zealous advocacy from an accredited veterans service organization.

8.    Attorneys can now receive a reasonable fee for representing veterans before a VA Regional Office, the Board of Veterans’ Appeals, or the U.S. Court of Appeals for Veterans Claims. 38 U.S.C. §§ 5904, 7263. However, the VA has traditionally shown a "thinly veiled hostility to attorney representation." Veterans Benefits Manual (National Veterans Legal Services Project; 1999). Indeed, from 1864 to 1988, the most an attorney could charge representing a veteran before the VA was $10.00. This was because veterans during the Civil War were being cheated by "scoundrels practicing law." Walters v. National Association of Radiation Survivors, 473 U.S. 305, 360 (1985) (Stevens, J., dissenting). In 1988, Congress passed the Veterans Judicial Review Act which allowed for reasonable fees for attorney representation before the VA. In 1992, the fee provisions of the Equal Access to Justice Act were also made applicable to VA proceedings. Thus, attorney representation is now feasible for veterans pursuing a claim for VA benefits. This is a further reason why a Benefits Counselor typically will not need to provide administrative representation directly on a VA claim. A good role for a Benefits Counselor will be to have an awareness of what benefits a veteran may qualify for, and to make sure that other accredited organizations (or attorneys) are zealously representing the veteran, if a dispute arises with the VA.

9.    Benefits available to veterans – overview. In the above-cited case, the U.S. Supreme Court remarked,

Congress began providing veterans pensions in early 1789, and after every conflict in which the Nation has been involved Congress has, in the words of Abraham Lincoln, "provided for him who has borne the battle, and his widow and his orphan." The VA was created by Congress in 1930, and since that time has been responsible for administering the congressional program for veterans’ benefits.

Walters v. National Association of Radiation Survivors, 473 U.S. 305, 309 (1985).

Today, the array of federal and state benefits that veterans can qualify for is extensive. However, the benefits available can be very dependent on the veteran’s period of service, character of discharge, nature of injury (service-connected or not service-connected), and financial circumstances. Medical benefits also will vary from locale to locale.

10.    Federal veterans benefits – the universe. Federal VA benefits include in-patient hospital care, nursing home care, domiciliary care, outpatient treatment, pharmacy services, dental treatment, alcohol and drug-dependence treatment, home improvements and structural alterations, prosthetic devices, counseling, disability compensation, pension, education and training, vocational rehabilitation, mortgage loans, life insurance, and burial benefits. These are discussed in greater detail in paragraphs which follow.

11.    State veterans benefits – the universe. State of Texas veterans benefits include Texas state veterans homes, property tax exemptions for disabled veterans, the Veterans Land Program, the Veterans Housing Assistance Purchase Program, the Veterans Home Improvement Program, free drivers licenses for disabled veterans, reduced-cost hunting and fishing licenses for disabled veterans, educational assistance for wartime veterans (up through the Persian Gulf War), free park admission for disabled veterans, and employment and reemployment rights. These are discussed in greater detail in paragraphs which follow.

12.    Federal benefits – concept of "period of war." For many federal veterans benefits, it is necessary that the veteran have served during wartime. Wartime is defined as:

(A)    Mexican border period. May 9, 1916, through April 5, 1917, in the case of a veteran who during such period served in Mexico, on the borders thereof, or in the waters adjacent thereto.

(B)    World War I. April 6, 1917, through November 11, 1918, inclusive. If the veteran served with the United States military forces in Russia, the ending date is April 1, 1920. Service after November 11, 1918 and before July 2, 1921 is considered World War I service if the veteran served in the active military, naval, or air service after April 5, 1917 and before November 12, 1918.

(C)    World War II. December 7, 1941, through December 31, 1946, inclusive. If the veteran was in service on December 31, 1946, continuous service before July 26, 1947, is considered World War II service.

(D)    Korean conflict. June 27, 1950, through January 31, 1955, inclusive.

(E)    Vietnam era. The period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases.

(F)    Persian Gulf War. August 2, 1990, through date to be prescribed by Presidential proclamation or law.

(G)    Future dates. The period beginning on the date of any future declaration of war by the Congress and ending on a date prescribed by Presidential proclamation or concurrent resolution of the Congress.

38 C.F.R. § 3.3.

13.    Another important concept: Service-connected versus nonservice-connected. Some federal veterans benefits require that the veteran have a service-connected disability. At 38 C.F.R. § 3.1 (k) and (l), these definitions are provided:

(k)    Service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

(l)    Nonservice-connected means, with respect to disability or death, that such disability was not incurred or aggravated, or that the death did not result from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

14.    The federal VA regulations provide eligibility for benefits if the veteran was discharged under other than dishonorable conditions. Thus a bad conduct or a dishonorable discharge disqualifies a person. It must be kept in mind that a discharge can sometimes be upgraded to general or honorable, resulting in eligibility.

15.    The range of service that can qualify for federal veterans benefits includes service in the Army, Navy, Air Force, Marines, Coast Guard, Public Health Service (as a commissioned officer), Environmental Services Administration, or the National Oceanic and Atmospheric Administration.

16.    There are 30 additional groups that are "considered to have performed active military, naval or air service." These include Women Airforce Service Pilots (WASPs), Women’s Army Auxiliary Corps (WAACs), U.S. civilians who defended Bataan, World War II U.S. Merchant Marines, and other groups. The full list is at 38 C.F.R. § 3.7.

17.    Eligibility for federal VA hospital, nursing home, and domiciliary care. The VA is required to furnish hospital care to veterans according to the following priority list:

(A)    To any veteran for a service-connected disability;

(B)    To any veteran who has a service-connected disability rated at 50% or more;

(C)    To any veteran with a service-connected disability rated at less than 50% (or, for nursing home care, less than 70%);

(D)    To any veteran receiving VA disability compensation, if the judgment or settlement with the VA provides for hospital, nursing home, or domiciliary care;

(E)    To any veteran who is a former prisoner of war (POW) or who was awarded the Purple Heart;

(F)    To any veteran who is a veteran of the Mexican border period or of World War I;

(G)    To any veteran who was exposed to a toxic substance, radiation, or a herbicide, during the Vietnam era; and

(H)    To any veteran who is unable to pay for necessary medical care.

Source: 38 U.S.C. § 1710.

18.    Thus, for VA hospitalization, nursing home, and domiciliary care, the highest preference is for veterans needing care for a service-connected disability. The lowest preference is for veterans who are "unable to pay for necessary medical care."

19.    The term "unable to pay for necessary medical care" means a veteran who receives Medicaid (even QI-2 or QDWI would suffice); a low-income veteran receiving a pension for a non-service-connected disability; or a low-income veteran (whether or not disabled) whose income is not more than the annual income threshold rate.

20.    Thus, VA health care for veterans focuses on serving those with service-connected conditions, ex-POWs, veterans of modest means, and aged veterans with wartime service. In recent years, the VA has also redirected its health care efforts toward preventive care and away from hospitalization, when feasible.

21.    For health care, the VA uses an "enrollment" process. Through the enrollment process, the VA determines what priority a veteran has. Enrollment is never closed – a veteran who has never enrolled can do so. Enrollment is accomplished by completing VA Form 10-10EZ. Enrollment can occur at any VA facility that provides medical care, by mail, or over the internet. The website for enrollment is www.va.gov/health/elig .

22.    The VA is only required to provide medical care "to the extent and in the amount provided in advance" by Congressional appropriations. 38 U.S.C. § 1710(a)(4). Thus, each year, if the VA’s appropriations were to run out, the VA would not have to provide further medical care to veterans. The VA must publish in the Federal Register by August 1 of each year the groups of veterans who will have priority for the upcoming fiscal year (which starts on October 1).

23.    If a veteran will be affected by a change in enrollment status, the VA must inform the veteran in writing. 38 C.F.R. § 17.36(d)(5).

24.    A veteran who actually received VA medical benefits in the previous year normally is automatically re-enrolled. However, a veteran whose eligibility for medical care is based on low income must resubmit the VA Form 10-10EZ every year to maintain enrollment. 38 C.F.R. § 17.36(d)(1). This allows the VA to reassess that veteran’s financial eligibility. The current low-income thresholds are $23,688 annual income (veteran); $28,429 (veteran with spouse) and $7,450 for each child. Income at or below these limits can allow a veteran to have free medical care. Income above these limits means the veteran, if he or she is not in another priority category, will have to pay co-payments.

25.    Under 38 C.F.R. § 17.37, there are several exceptions to the enrollment requirement. These exceptions include:

(A)    A veteran rated for service-connected disabilities at 50 percent or greater will receive VA hospital and outpatient care provided for in the "medical benefits package" set forth in § 17.38;

(B)    A veteran who has a service-connected disability will receive VA hospital and outpatient care provided for in the "medical benefits package" set forth in § 17.38 for that service-connected disability;

(C)    A veteran who was discharged or released from active military service for a disability incurred or aggravated in the line of duty will receive VA hospital and outpatient care provided for in the "medical benefits package" set forth in § 17.38 for that disability for the 12-month period following discharge or release; and

(D)    When there is a compelling medical need to complete a course of VA treatment started when the veteran was enrolled in the VA healthcare system, a veteran will receive that treatment.

26.    In sum, because of the VA’s requirement to provide medical care to those veterans that Congress’ funding covers, and because of the variety among VA medical facilities, a veteran needing medical care can contact the nearest VA medical facility. That facility can inform the veteran if enrollment is necessary.

27.    A veteran who is accepted by the VA for medical care has the prospect of receiving a wide range of services. The "medical benefits package" is described at 38 C.F.R. § 17.38. It includes:

(A) Basic care, namely:

(i)    Outpatient medical, surgical, and mental healthcare, including care for substance abuse;

(ii)    Inpatient hospital, medical, surgical, and mental healthcare, including care for substance abuse;

(iii)    Prescription drugs, including over-the-counter drugs and medical and surgical supplies available under the VA national formulary system;

(iv)    Emergency care;

(v)    Bereavement counseling;

(vi)    Comprehensive rehabilitative services;

(vii)    Consultation, professional counseling, training, and mental health services for the members of the immediate family or legal guardian of the veteran or the individual in whose household the veteran certifies an intention to live, if needed to treat:

(a)    The service-connected disability of a veteran; or

(b)    The nonservice-connected disability of a veteran where these services were first given during the veteran’s hospitalization and continuing them is essential to permit the veteran’s release from inpatient care;

(viii)    Durable medical equipment and prosthetic and orthotic devices, including eyeglasses and hearing aids;

(ix)    Home health services;

(x)    Reconstructive (plastic) surgery required as a result of disease or trauma, but not including cosmetic surgery that is not medically necessary;

(xi)    Respite, hospice, and palliative care;

(xii)    Payment of travel and travel expenses for veterans eligible under 38 C.F.R. § 17143 if authorized by that section;

(xiii)    Pregnancy and delivery services; and

(xiv)    Completion of forms (e.g., Family Medical Leave forms, life insurance applications, Department of Education forms for loan repayment exemptions based on disability, non-VA disability program forms) by healthcare professionals based on an examination or knowledge of the veteran’s condition, but not including the completion of forms for examinations if a third party customarily will pay health care practitioners for the examination but will not pay VA.

(B)    Preventive care, namely:

(i)    Periodic medical exams;

(ii)    Health education, including nutrition education;

(iii)    Maintenance of drug-use profiles, drug monitoring, and drug use education;

(iv)    Mental health and substance abuse preventive services;

(v)    Immunizations against infectious disease;

(vi)    Prevention of musculoskeletal deformity or other gradually developing disabilities of a metabolic or degenerative nature;

(vii)    Genetic counseling concerning inheritance of genetically determined Routine vision testing and eye-care services; and

(viii)    Periodic reexamination of members of high-risk groups for selected diseases and for functional decline of sensory organs, and the services to treat these diseases and functional declines.

(C)    The "medical benefits package" does not include the following:

(i)    Abortions and abortion counseling;

(ii)    In vitro fertilization;

(iii)    Drugs, biologicals, and medical devices not approved by the Food and Drug Administration unless the treating medical facility is conducting formal clinical trials under an Investigational Device Exemption (IDE) or an Investigational New Drug (IND) application, or the drugs, biologicals, or medical devices are prescribed under a compassionate use exemption;

(iv)    Gender alterations;

(v)    Hospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services; nor

(vi)    Membership in spas and health clubs.

These inclusions and exclusions of the "medical benefits package" are set forth at 38 C.F.R. § 17.38.

8.    Domiciliary care is one service that the VA can provide. Domiciliary care provides rehabilitative and long-term health maintenance care for veterans who require minimal medical care but who do not need nursing home care. To be eligible for domiciliary care, the veteran must be able to:

(A)    Perform without assistance daily ablutions, such as brushing teeth; bathing; combing hair; body eliminations;

(B)    Dress self, with a minimum of assistance;

(C)    Proceed to and return from the dining hall without aid;

(D)    Feed Self;

(E)    Secure medical attention on an ambulatory basis or by use of personally propelled wheelchair;

(F)    Have voluntary control over body eliminations or control by use of an appropriate prosthesis;

(G)    Share in some measure, however slight, in the maintenance and operation of the facility; and

(H)    Make rational and competent decisions as to his or her desire to remain or leave the facility.

38 C.F.R. § 17.46.

29.    Because there may be more veterans enrolled for medical care than a particular facility can serve, VA medical facilities have waiting lists.

30.    Veterans who are not in a priority category, for whom the VA medical facility has space, can receive VA care by making a co-payment. For VA hospital care, the copay is equal to the Medicare Part A deductible for the first 90 days of hospitalization. For each additional 90 days of hospitalization, the copay is one-half the Medicare deductible. Veterans who are not entitled to free hospital care must also pay $10 per day for hospitalization.

31.    For each 90 days of nursing home care, the veteran, if ineligible for free care, must pay the current Medicare hospital deductible. Veterans ineligible for free care also must pay a $5 per day nursing home deductible.

32.    For outpatient care, veterans ineligible for free care must pay 20% of the cost of an average outpatient visit.

33.    For outpatient pharmacy services, veterans ineligible for free care must pay at least $2 for each 30-day supply of medication.

34.    The VA has the authority to reimburse the veteran for the cost of travel necessary to obtain VA medical care. This reimbursement can be made to veterans seeking treatment of a service-connected disability, or veteran receiving VA pension benefits, and a veteran with income at or below the maximum annual pension rate. The travel expenses which the VA can reimburse include lodging, subsistence, mileage, and tolls. Travel by a car will not be reimbursed at more than the cost of public transportation (if available). There is a $3 per trip deductible, but the deductible is capped at $18.00 per month.

35.    The regulations at 38 C.F.R. §§ 17.143 – 145 clearly contemplate that the veteran will obtain prior approval of travel, if the veteran wants reimbursement. There is provision to request reimbursement for travel that was not pre-authorized at 38 C.F.R. § 17.145, but that is clearly disfavored.

36.    The VA has the authority to provide "sensori-neural aids" (eyeglasses, contact lenses, hearing aids). 38 C.F.R. § 17.149. The VA can provide such aids to veterans with compensable service-connected disabilities, ex-POWs, veterans receiving benefits because of injury due to VA treatment, veterans receiving an increased pension based on the need for "aid and attendance" or because the veteran is permanently housebound, veterans with a visual or hearing impairment due to a medical condition for which the veteran is receiving VA care, veterans with a significant functional or cognitive impairment evidenced by deficiencies in activities of daily living, and veterans whose vision or hearing is so impaired that they need a sensori-neural aid to participate in their own medical treatment. 38 C.F.R. § 17.149.

37.    The VA is also authorized to provide "prosthetic and similar appliances." 38 C.F.R. § 17.150. Artificial limbs, braces, orthopedic shoes, hearing aids, wheelchairs, medical accessories, similar appliances including invalid lifts and therapeutic and rehabilitative devices, and special clothing made necessary by the wearing of such appliances, may be purchased, made or repaired for any veteran upon a determination of feasibility and medical need, provided:

(A)    As part of outpatient care;

(B)    As part of hospital care;

(C)    As part of domiciliary care; or

(D)    As part of nursing home care.

38 C.F.R. § 17.150.

38.    The VA is authorized to provide "Devices to assist in overcoming the handicap of deafness." Devices for assisting in overcoming the handicap of deafness (including telecaptioning television decoders) may be furnished to any veteran who is profoundly deaf (rated 80% or more disabled for hearing impairment by the Department of Veterans Affairs) and is entitled to compensation on account of such hearing impairment. 38 C.F.R. § 17.152.

39.    The VA is authorized to provide dog-guides and equipment for blind, as follows:

(A)    Blind ex-members of the Armed Forces entitled to disability compensation for a service-connected disability may be furnished a trained dog-guide. In addition, they may be furnished necessary travel expense to and from their places of residence to the point where adjustment to the dog-guide is available and meals and lodging during the period of adjustment, provided they are required to be away from their usual places of residence during the period of adjustment.

(B)    Mechanical and/or electronic equipment considered necessary as aids to overcoming the handicap of blindness may also be supplied to beneficiaries defined in paragraph (a) of this section.

38 C.F.R. § 17.154.

40.    The VA is authorized to provide automobile adaptive equipment, as follows: To veterans who are entitled to receive compensation for the loss or permanent loss of use of one or both feet; or the loss or permanent loss of use of one or both hands; or ankylosis of one or both knees, or one or both hips if the disability is the result of injury incurred or disease contracted in or aggravated by active military, naval or air service. 38 C.F.R. § 17.156.

41.    The VA is authorized to provide invalid lifts for recipients of aid and attendance allowance or special monthly compensation. An invalid lift may be furnished if:

(A)    The applicant is a veteran who is receiving (1) special monthly compensation (including special monthly compensation based on the need for aid and attendance), or (2) comparable compensation benefits at the rates prescribed under 38 U.S.C. 1134, or (3) increased pension based on the need for aid and attendance or a greater compensation benefit rather than aid and attendance pension to which he or she has been adjudicated to be presently eligible; and

(B)    The veteran has loss, or loss of use, of both lower extremities and at least one upper extremity (loss of use may result from paralysis or other impairment to muscle power and includes all cases in which the veteran cannot use his or her extremities or is medically prohibited from doing so because of a serious disease or disability); and

(C)    The veteran has been medically determined incapable of moving himself or herself from his or her bed to a wheelchair, or from his or her wheelchair to his or her bed, without the aid of an attendant, because of the disability involving the use of his or her extremities; and

(D)    An invalid lift would be a feasible means by which the veteran could accomplish the necessary maneuvers between bed and wheelchair, and is medically determined necessary.

38 C.F.R. § 17.151.

42.    The VA is authorized to provide dental examinations and dental care. 38 C.F.R. §§ 17.160, 17.161. Preference is given to veterans having a service-connected disability.

43.    Alcohol and drug abuse treatment is also available through the VA. A veteran interested in this service should contact the nearest VA medical facility.

44.    The VA can also provide funds for home improvements and structural alterations. The purpose is for veterans to continue treatment, or to provide access at home to essential facilities. Up to $4,100 can be provided if the need is service-connected. Up to $1,200 can be provided if the need is not service-connected. The application for this is made through the prosthetic representative at the nearest VA medical center or outpatient clinic.

45.    As has been seen above, there are many variables to whether a veteran can receive VA medical care. A benefits counselor’s most effective role may often be to make sure that the client is being well-served by his or her veterans service officer. Additionally, the VA itself has benefits counselors. A further factor is this: From 1789 to 1988, veterans benefits were administered without judicial review. The VA, once it was established, was viewed by many as paternalistic. Thus, advocates who are not part of the VA advocacy community may sense that they are not welcome.

46.    Veterans can obtain information directly from the VA, through 1-800-827-1000. This is a highly automated number. The veteran may be referred to his or her local medical facility for definitive information regarding what medical care is currently available in the locality.

47.    In addition to VA health benefits, the VA is authorized to grant "compensation" to some veterans and "pension" to some veterans. One major difference between compensation and pension is this: Compensation requires a service-connected impairment; pension requires that the veteran have low income. A second major difference is this: Income and resources do not affect the amount of compensation. Income and resources do affect the amount of pension that is payable.

48.     Two statutes establish the compensation program. They are 38 U.S.C. § 1110 and 38 U.S.C. § 1131. The first statute states:

Basic entitlement

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.

38 U.S.C. § 1110.

49.    The second statute has essentially the same wording, except that "during a period of war" is replaced by "during other than a period of war." Thus, 38 U.S.C. § 1110 establishes the "Wartime Disability Compensation" program and 38 U.S.C. § 1131 establishes the "Peacetime Disability Compensation" program.

50.    In determining the amount of compensation, the VA uses a "ratings" schedule of 0% to 100%. The ratings schedule is set out at 38 U.S.C. § 1114. The federal regulations at 38 C.F.R. §§ 3.303 – 3.385 also govern how disabled a veteran will be rated.

51.    Several specific diseases are presumed to be service-connected if they manifest themselves within one year of separation. These diseases range from anemia through ulcers. These are listed at 38 C.F.R. § 3.309.

52.    Certain diseases that habitually afflict POWs are presumed to be service-connected, ranging from avitaminosis through psychosis. These are listed at 38 C.F.R. § 3.309.

53.    Certain cancers are presumed to be service-connected if the veteran served during period of atomic testing in the test area. These cancers and testing series are listed in 38 C.F.R. § 3.309.

54.    Cancers are presumed to be service-connected if the veteran was exposed to Agent Orange in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 C.F.R. § 3.309.

55.    Other diseases and injuries may be shown to be "service-connected." The diseases mentioned at paragraphs 49-51 simply are presumed to be service-connected. "Service-connection" can be proven for other diseases and injuries. "Service-connection" means that a particular injury or disease resulting in disability was incurred during military service or, if preexisting, was aggravated during military service. 38 C.F.R. § 3.303(a).

56.    The VA rates the extent to which a service-connected injury or disease impairs earning capacity. Unlike Social Security and SSI, VA compensation does not require total disability.

57.    For the year 2001, the compensation payable for different degrees of service-connected disability is:

2001 Disability Compensation

Depending upon the disability rating of the veteran, allowances for a spouse range from $35 to $117; and for each additional child, $18 to $61.

58.    As noted above, VA compensation is not affected by income or resources. (Of course, if income is from work, that may be considered as evidence that the degree of impairment is less than originally determined.) In contrast, the amount of VA pension is affected by income and resources.

59.    In calculating the amount of VA pension, income (which reduces pension) has a broad definition. "Payments of any kind" count as income unless specifically excluded. 38 C.F.R. § 3.271.

60.    Income exclusions are listed at 38 C.F.R. § 3.272. Welfare payments, maintenance furnished by relatives, friends and charities, reimbursements for casualty losses, unreimbursed medical payments, Agent Orange settlement payments, radiation exposure compensation, and spina bifida allowances to children of Vietnam veterans, are examples of income that is excluded in calculating the amount of pension.

61.    Countable income and the corpus of the veteran’s estate are factors in determining the amount of pension. The homestead and personal effects are excluded.

62.    The maximum pension payable is as follows:

2001 Improved Pension

63.    Appeals. The VA’s decision on compensation or pension can be appealed. The appeal can be filed within one year of the initial VA decision. It is filed with the VA regional office. Texas has VA regional offices in Houston, Waco, and (for Texarkana) in Little Rock, AR. A veteran wanting to know which regional office to appeal to can call 1-800-827-1000.

64.    The Regional Office prepares a Statement of the Case. The veteran has 60 days from the date of mailing of the Statement of the Case to file VA Form 9 – the Substantive Appeal.

65.    The regional office transfers the file to the Board of Veterans Appeals. The veteran has 90 days in which to submit additional evidence and to ask for a hearing.

66.    If the veteran disagrees with the decision of the Board of Veterans Appeals, the veteran has 120 days to file an appeal in the Court of Appeals for Veterans Claims.

67.    This same appeals process also applies to decisions of VA medical centers. The difference is that the first step – the veteran’s disagreement with the initial determination – is filed with the medical center.

68.    The Board of Veterans Appeals has prepared an excellent pamphlet on the VA Appeals Process. It can be downloaded from the Board’s website at www.va.gov/vbs/bva.

69.    Additional medical and monetary benefits for dependents of veterans. Additional medical and monetary benefits are available under certain circumstances to dependents of veterans. These are discussed next in paragraphs 70 through 89.

70.    CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs and is administered by the Health Administration Center, Denver, Colorado. Pursuant to 38 U.S.C. 1713, VA is authorized to provide medical care in the same or similar manner and subject to the same or similar limitations as medical care furnished to certain dependents and survivors of active duty and retired members of the Armed Forces. The CHAMPVA program is designed to accomplish this purpose. Under CHAMPVA, VA shares the cost of medically necessary services and supplies for eligible dependents. 38 C.F.R. § 17.270.

71.    To be eligible for CHAMPVA, the dependent cannot be eligible for TRICARE (the health care program for dependents of active duty and retired members of the military.) Eligibility for Medicare also rules out eligibility for CHAMPVA.

72.    Eligible for CHAMPVA are:

(A)    The spouse or child of a veteran who has been adjudicated by VA as having a permanent and total service-connected disability;

(B)    The surviving spouse or child of a veteran who died as a result of an adjudicated service-connected condition(s); or who at the time of death was adjudicated permanently and totally disabled from a service-connected condition(s);

(C)    The surviving spouse or child of a person who died on active military service and in the line of duty and not due to such person’s own misconduct.

38 C.F.R. § 17.271.

73.    CHAMPVA covers only medically necessary services. There is a list of over 80 services that are excluded from coverage under CHAMPVA. 38 C.F.R. § 17.272. Thus, a CHAMPVA beneficiary will want to read his/her benefits booklet carefully to be sure if a service is or is not covered. Many CHAMPVA services require pre-authorization. 38 C.F.R. § 17.273.

74.    CHAMPVA also has cost-sharing requirements. For services obtained away from a VA medical facility, CHAMPVA pays 75% of the CHAMPVA "allowable amount." The beneficiary is responsible for the rest of the bill.

75.    In addition to the beneficiary cost share, an annual (calendar year) outpatient deductible requirement ($50 per beneficiary or $100 per family) must be satisfied prior to the payment of outpatient benefits. There is no deductible for inpatient services. CHAMPVA pays the CHAMPVA-determined allowable amount less the deductible, if applicable, and less the beneficiary cost share. To provide financial protection against the impact of a long-term illness or injury, an annual cost limit or "catastrophic cap" has been placed on the beneficiary cost-share amount for covered services and supplies. This annual cap on cost sharing is $7,500 per CHAMPVA-eligible family. Credits to the annual catastrophic cap are limited to the applied annual deductible(s) and the beneficiary cost-share amount. Costs above the CHAMPVA-allowable amount, as well as costs associated with noncovered services are not credited to the catastrophic cap computation. 38 C.F.R. § 17.274.

76.    There is a very truncated appeals process for CHAMPVA determinations. A beneficiary can request review of a CHAMPVA decision by asking for reconsideration from the Health Administration Center. If a beneficiary disagrees with the reconsideration decision, the beneficiary can request review by the Director of the Health Administration Center.

77.    CHAMPVA can be contacted toll-free at 1-800-733-8387. The address is: Veterans Affairs Health Administration Center, P.O. Box 65023, Denver, CO, 80206-5023.

78.    Additional monetary benefits. In the case of a veteran who is receiving service-connected compensation, and who is in need of aid and assistance provided by a spouse, family member, friend, or neighbor, an additional payment can be made. The rates will vary depending on how severe the veteran’s disability is. Aid and attendance payments can be as high as $2,280 monthly. 38 U.S.C. § 1114(s).

79.    If a veteran has a disability rating of 30% or more, additional payments can be made based on the veteran having a spouse, dependent child(ren), and/or parent(s). The percent of rating (30%, 40%, etc.) will also affect the amount of added compensation due to dependents. The amount is fixed by Congress. Currently, if a veteran is 100% disabled due to a service-connected injury, the added monthly compensation is: $117 for the spouse; $201 if there is a spouse and one child; $61 for each additional child; and $95 for each dependent parent. If the spouse is in need of aid and attendance because the spouse is "helpless or blind," the spouse’s added monthly compensation shall be $222. 38 U.S.C. § 1115(l). If the veteran’s disability rating is less than 100%, the foregoing amounts are adjusted accordingly. (Thus, a 30% rating would result in a 30% benefit level for dependents.)

80.    Monetary and health benefits for children with spina bifida born to Vietnam veterans. Under the Agent Orange Act of 1996, children born with spina bifida born of a natural parent (father or mother) who served in Vietnam between January 9, 1962 and May 7, 1975, are eligible for monetary and health benefits. 18 U.S.C. § 1801. The monthly monetary benefits were set at three levels ($221, $770, and $1,317 for 2001) depending on severity of spina bifida. 38 U.S.C. § 5312. The VA adjusts these benefit levels annually by the factor used to adjust Social Security benefits.

81.    The Agent Orange Act also provides health care coverage and vocational rehabilitation and training for children born with spina bifida to a mother or father who served in Vietnam between January 9, 1962 and May 7, 1975.

82.    Survivors of veterans may be able to receive service-connected dependency and indemnity compensation (DIC) or death pension. If a veteran’s death is caused by a service-connected disability, the surviving spouse and dependent children are eligible for dependency and indemnity compensation (DIC). It suffices for the service-connected disability to be a contributing cause of death – it does not have to have been the principal cause of death. 38 C.F.R. § 3.312.

83.    If the veteran died before January 1, 1993, the DIC payment varies from $911 monthly to $1,943 monthly, depending on the highest pay grade achieved by the veteran during service. If the veteran died on or after January 1, 1993, the following chart shows the amount of benefits:

Spouses

(Veteran died on/after January 1, 1993)

84.    Aid and attendance is payable to the surviving spouse if the spouse is a patient in a nursing home or is helpless or blind or so nearly helpless or blind as to need or require the regular aid and attendance of another person. If the surviving spouse is permanently housebound – confined to the home and the immediate premises – the additional housebound benefit is payable. 38 C.F.R. § 1311. It must be kept in mind that these payments only occur if the service member died due wholly or partly to a service-connected disability. It is not enough to merely be the surviving spouse of a veteran.

85.    If the veteran dies due to a service-connected disability (whether the disability is the principal or merely a contributing cause of death, and if the veteran is survived by a dependent parent or by dependent parents, the parent or parents can receive disability and indemnity compensation. The maximum amount of the benefit is $429 monthly for a single parent and $578 monthly for both parents living together. Income of the parent reduces the benefit payable. 38 U.S.C. § 1315.

86.    Even if the veteran’s death was not caused in whole or in part by a service-connected disability, a surviving spouse of modest means may still qualify for pension. Remember: Whereas compensation is not means-tested, pension is.

87.    For pension, the surviving spouse has to have been married to the veteran for at least one year, or for any period of time if a child was born to the veteran and the spouse, or if the marriage occurred before the end of the war or conflict in which the veteran served. For widows or widowers of veterans of the Persian Gulf War, the marriage must have occurred before January 1, 2001. 38 C.F.R. § 3.54.

88.    The income and net worth of the surviving spouse of a veteran are counted in the same manner as they would be if it were the veteran applying for pension. If the survivor’s net worth changes so that a previous denial of pension can be reversed, the survivor can reapply. 38 C.F.R. § 3.660.

89.    A dependent surviving child of a veteran can also receive pension. The chart below shows the current death pension benefits:

90.    Veterans with a service-connected disability may receive a grant of up to $43,000 to buy, build, or remodel a home. To qualify, the veteran must have lost the use of at least one arm or one leg. A veteran who is blind or who has lost the use of both hands can qualify for a grant of up to $8,250 to adapt a home. The VA can pay up to $8,000 to adapt a vehicle for use by a veteran who has a service-connected loss of a hand, foot, knee, or hip. Veterans whose service-connected disability causes a skin condition that requires the use of medications that irreparably damage outer garments can receive a clothing allowance.

91.    Benefits for veterans irrespective of disability. Veterans have from time to time been accorded educational benefits. The most recent "GI Bill" is the Montgomery GI Bill for those who entered active duty after June 30, 1985 and who received an honorable discharge. There were also Vietnam Era and post-Vietnam Era GI Bills. Because of the variances in these GI Bills, a veteran may want to contact the nearest veterans service office to determine what education benefits the veteran still has.

92.    The VA also guarantees loans to veterans, reservists, and unmarried surviving spouses for the purchase, repair, or refinancing of a home. Eligibility information is available through www.homeloans.va.gov/elig.htm .

93.    Burial benefits. Veterans are eligible for burial in a VA national cemetery, as long as the discharge was under conditions other than dishonorable and the veteran completed the required period of service. VA also provides headstones and markers upon request, even if the veteran is not buried in a VA national cemetery. If the remains have been cremated, a niche marker will be provided for placement in the columbaria. Presidential Memorial Certificates, to recognize honorably discharged deceased veterans, can be requested by next of kin. The VA can also arrange for military funeral homes for honorably discharged veterans. Information is available through www.militaryfuneralhonors.osd.mil.

94.    The VA provides an American flag for deceased veterans who were discharged under conditions other than dishonorable. VA Regional Offices, national cemeteries, and even post offices can provide these flags.

95.    VA will reimburse up to $300 in burial expense for a veteran who was receiving pension at the time of death. If the veteran’s death was service-connected, the burial allowance is up to $1,500. Further information is available through www.cem.va.gov .

96.    The location of VA facilities in Texas. The website of the Texas Veterans Commission lists the location of VA Regional Offices, Medical Centers, Outpatient Clinics, Womens Veterans Coordinators, and Vet Centers in Texas. This information is at www.tvc.state.tx.us/va.htm .

97.    The Texas Veterans Commission. The Texas Veterans Commission’s purpose is described at www.tvc.state.tx.us/whatis.htm as "assisting veterans, their dependents and survivors in filing claims for U.S. Department of Veterans Affairs (VA) compensation, pension, death benefits, educational assistance, home loans, insurance, hospitalization and outpatient care, as well as numerous other benefits and privileges. Assistance in filing for VA benefits is also given to dependents and survivors of veterans in State schools, centers, institutions, orphanages and homes. Additionally, assistance is provided in filing for State benefits."

98.    The Texas Veterans Commission has offices in Amarillo, Austin, Beaumont, Big Spring, Bonham, Corpus Christi, Dallas, El Paso, Fort Hood, Fort Sam Houston, Fort Worth, Houston, Kerrville, Lackland Air Force Base, Laredo, Lubbock, Lufkin, McAllen, Marlin, Marshall, Midland, Paris, San Antonio, Sheppard Air Force Base, Temple, Victoria, and Waco. Many of these offices are in VA Medical Centers or outpatient clinics. The addresses and phone numbers are listed at www.tvc.state.tx.us/wherecan.htm.

99.    Thus, a Benefits Counselor of the Texas Area Agencies on Aging may best help a veteran by making sure that the appropriate office of the Texas Veterans Commission has all the information it needs. The Benefits Counselor can assist the office of the Texas Veterans Commission, if it appears appropriate, in obtaining information to the help the veteran receive services.

100.    The Texas Veterans Commission has an excellent brochure at www.tvc.state.tx.us titled "Benefits for Veterans, Dependents & Survivors." The brochure describes several state benefits for veterans.

101.    The first state benefit which the brochure describes is the Texas tax exemption for disabled veterans. These tax benefits are codified at Sections 11.22 and 11.43 of the Texas Tax Code. A veteran with a disability rating of 10% to 30% can claim the first $5000 of appraised value of his or her property as exempt. If the disability rating is 31% to 50%, the first $7,500 of appraised value can be claimed as exempt. If the disability rating is 51% to 70%, the first $10,000 of appraised value can be claimed as exempt. If the disability rating is 71% or more, the first $12,000 of appraised value can be claimed as exempt. A veteran whose disability rating is 10% or more and who is 65 years of age or older can claim the first $12,000 of appraised value as exempt. A veteran who has lost a limb, or who is blind in one or both eyes, or who has paraplegia can claim the first $12,000 in appraised value as exempt. Surviving spouses who are not remarried can claim the same exemption which the disabled veteran could claim. The surviving spouse of a person who dies on active duty can claim an exemption for the first $5,000 of appraised value of property. Each of these exemptions must be claimed by applying at the local appraisal district office, between January 1 and April 30.

102.    Numerous sections of the Texas Transportation Code provide for one vehicle registration without fee for various cohorts of veterans. Section 502.254(a) of the Transportation Code provides vehicle registration without fee for veterans who have at least a 60% service-connected disability rating, or at least a 40% rating and who have suffered amputation of a lower extremity. In either case, the veteran must be receiving VA disability compensation. Section 502.255 of the Transportation Code has a similar waiver of registration fee for one vehicle, for recipients of the Congressional Medal of Honor. This benefit is accorded to holders of the Air Force Cross, Distinguished Service Cross, Army Distinguished Service Cross, and Navy Cross under Section 502.2555, to former prisoners of war under Section 502.257, to Pearl Harbor survivors under Section 502.259, and to Purple Heart awardees under Section 502.260 of the Transportation Code. Although these license plates are issued without registration fee, there is a $3 application fee. Vehicles registered under Sections 502.254(a), 502.255, 502.257, 502.259, and 502.260, are exempt from having to pay at parking meters of any level of Texas government. A government unit can also by ordinance allow for cost-free parking in government-owned parking lots, under Section 681.008 of the Transportation Code, for vehicles with a tag issued under one of the foregoing sections of the Transportation Code.

103.    Veterans with a disability rating of 60% or more who are receiving VA compensation for the disability are eligible for a driver’s license without fee. This is provided for by Section 521.426 of the Transportation Code.

104.    A veteran who has suffered a service-connected loss of the use of a lower extremity or with a disability rating of 60% or more who is receiving VA disability compensation can apply for a "State Parklands Passport" and then enter any state park without fee. Section 13.018 of the Parks and Wildlife Code provides for this. A veteran with that same level of impairment or worse is eligible for a free hunting license under Section 42.012 of the Parks and Wildlife Code, and for a free fishing license under Section 46.004 of the Parks and Wildlife Code.

105.    A state education benefit is provided for wartime veterans under Chapter 54 of the Texas Education Code. Specifically, at Section 54.203 of the Texas Education Code, the Hazlewood Act is set forth. Under the Hazlewood Act, a veteran who served in time of war and who was a legal resident of Texas at the time of entering the military, and who has exhausted all federal VA educational benefits, can receive a waiver of tuition at any State-supported college or university. "Wartime" under the Hazlewood Act includes World War I, World War II, the Korean War, the Cold War, the Vietnam era, the Grenada and Lebanon era, the Panama era, and the Persian Gulf War. Section 54.203(a) of the Texas Education Code sets out the precise dates when these conflicts began and ended for Hazlewood Act benefit purposes. The Texas Veterans Commission has an excellent brochure on the Hazlewood Act, at www.tvc.state.tx.us.

106.    The General Land Office, which includes the Veterans Land Board, has certain programs that assist veterans. The website for the General Land Office is www.glo.state.tx.us.

107.    Texas State Veterans Homes are operated by the Texas Veterans Land Board. There are four of these in the state. They are located in Temple, Big Spring, Floresville, and Bonham. They are 65% funded by the VA and 35% funded by the State of Texas. These homes provide nursing care, physical, speech, and occupational therapy, and a wide range of activities. The homes have semi-private and private rooms, central dining areas, Alzheimer’s units with secured courtyard, libraries, meditation rooms, and gift shops.

108.    The Texas State Veterans Homes offer recreational activities, social services, special diets, and community volunteer programs. The Texas Veterans Commission, county veterans services offices, and veterans organizations in the localities participate in this partnership, along with the U.S. Department of Veterans Affairs and the Texas Veterans Land Board.

109.    Eligibility for care at a Texas State Veterans Home requires that the veteran be an "eligible veteran" as defined by 38 C.F.R. §51.50. That section has a preference for veterans who have service connected disabilities, former prisoners of war, veterans who receive disability compensation, veterans who cannot pay for there own care, very elderly veterans (those who served in World War I or the Mexican border period), and veterans afflicted with Agent Orange-related ailments and with toxic chemical ailments from the Gulf War. In addition, the veteran must require long-term care, must be a resident of Texas, must have been a resident of Texas at the time of entry into the military service (or have resided in Texas for one year before applying for admission), and must not have been dishonorably discharged. Spouses or unmarried surviving spouses of such veterans would also be eligible. "Gold Star" parents are also eligible. These are parents, all of whose children died while serving in the Armed Forces of the United States.

110.    Those who enter a Texas State Veterans Home will be expected to pay for care, if they can. Effective May 15, 2001, the basic daily rate for a semi-private room with skilled care is $113. For qualified veterans, the State Veterans Home receives from the U.S. VA $51.38 per day (thus reducing the amount to be paid by the veteran). If the veteran needs "aid and attendance" – which is very likely – the VA pays a further $10 per day of the remaining amount due. For Alzheimer’s patients, the VA contributes a further $2 daily. If a veteran wants a private room, the daily charge for that is $37.

111.    Medicaid funds cannot be used to pay for care at a State Veterans Home. If a service is covered by Medicare, that coverage does apply.

112.    Thus, veterans pay for care in a State Veterans Home through their own non-VA income (Social Security, private pensions, investment), through VA per diem payments, and through such Medicare coverage as will occur for the particular patient. (Keep in mind: Medicare does not cover custodial care, and Medicare’s coverage of skilled nursing care is limited to 100 days per Medicare benefit period.)

113.    A veteran applies for admission to a Texas State Veterans Home directly to the location of choice. Additional information can be obtained from the Texas Veterans Land Board at 1-800-252-8387, or 1-512-475-2336. Excellent information about Texas State Veterans Homes is available through www.glo.state.tx.us/vlb/vethomes.

114.    The Veterans Housing Assistance Program is also operated by the Texas Veterans Land Board. This program of low-interest loans can provide financing for up to $150,000 of the purchase price of a home. This type of loan can be combined with a VA guaranteed loan, thus increasing the amount of financing available to a veteran. For this program, it suffices for the veteran to have been discharged under other than dishonorable conditions; disability is not required. This program is described at www.glo.state.tx.us/vlb/vhap/housgrea.

115.    Summary. As can be seen, there is a wide range of health services available through the U.S. Department of Veterans Affairs. However, preference is given to those with service-connected disabilities, former prisoners of war, very elderly veterans, and veterans who cannot afford to pay for medical care. But, depending on funding availability in any particular year, other veterans may be able to access VA medical care. The VA also can approve compensation for veterans with service-connected disabilities, and pension for low-income veterans. Under certain circumstances, surviving spouses, children, and parents, may also be able to receive compensation. Surviving spouses and children may qualify for pension. The VA also can be the source for assistance with home purchases, home improvements, and home loans. The VA provides some services in regard to burial. The State of Texas offers certain disabled veterans free vehicle registration, driver’s, hunting, and fishing licenses, and free entry into state parks. Certain Texas veterans can also receive care at a Texas State Veterans Home. The State of Texas also provides mortgage loan assistance to Texas veterans.

116.    There is a wealth of offices and organizations available to help veterans. They are listed at www.tvc.state.tx.us. Because of the expertise of those other offices and organizations, and because of their duties to serve veterans, a Benefits Counselor’s best role may often be to make sure the veteran receives the services due from other advocacy offices and organizations.

117.    As with all other matters handled by Benefits Counselors, the Legal Hotline for Older Texans is available for back-up and support, at 1-800-880-9797.