Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

VA Secretary Announces Plan to Upgrade the VHA Electronic Health System

On June 5, 2017, DVA secretary David Shulkin announced that the Department of Veterans Affairs would adopt the same electronic health records management system as the Department of Defense, called MHS GENESIS (https://health.mil/mhsgenesis).  The primary motivation is to permit the Veterans Health Administration (VHA) to communicate and exchange information between the DVA and DoD health records.

In the past, the DVA attempted to adapt their existing VHA electronic management system so to permit the exchange of information with the DoD, however, it was later determined that the two systems could not communicate with one another.  For those interested, the Government Accountability Office released a report in to 2014 explaining the history of the attempted VHA and DoD system integration at http://www.gao.gov/products/GAO-14-302.

A link to Secretary Shulkin’s press release can be found at the following link:  http://www.blogs.va.gov/VAntage/38637/va-secretary-announces-decision-next-generation-electronic-health-record/

VA National Cemeteries Pre-Need Eligibility Press Release . . . A Really Good Idea

On December 8, 2016, the Department of Veterans Affairs ( “VA” or “DVA”) issued a Press Release allowing veterans and dependents to file an application for eligibility for interment in a VA national cemetery “prior to time of need” through the Pre-Need Determination of Eligibility Program.  The Press Release can be viewed at va-press-release-burial-benefits.

To simplify, a veteran or qualified dependent can obtain written notice of eligibility for VA interment at a national cemetery before death (i.e. “prior to time of need”) by submitting the new VA Form 40-10007.  Burial at a national cemetery includes gravesite, headstone or marker, opening and closing at the grave, and perpetual care of the gravesight at no cost.  Eligibility as a qualified veteran or dependent closely mirrors the eligibility requirements as a veteran under 38 U.S.C. 101 and the VA has a separate website that explains eligibility at National Cemetery Eligibility.

It is common during estate planning that the topic of burial expenses/arrangements arise.  It is also common that family members are contacting our office to handle estate matters immediately after the death of the individual where burial arrangements were not made or are unknown.  Written notification from the DVA before death, would be a great vehicle to alleviate the person’s concerns prior to death and eliminate one variable for family members both grieving and attempting to handle estate affairs immediately after death.

I assume the VA written notification of pre-need eligibility will give clear instructions on how to proceed upon death and can kept with other estate documents for simple reference.

To the extent, individuals have questions concerning Title 38 (Department of Veterans Affairs) benefits, please don’t hesitate to contact us at (732) 382-6070.

 

VA Publishes New Compensation Benefits Rate After .3% COLA Increase

In October 2016, the DVA announced that a .3% increase in DVA benefits rates for 2016-2017.  This increase is a reflection of the cost-of-living adjustment for this fiscal year based upon the Consumer Price Index.

Last week the DVA updated its website to reflect this increase and the new compensation benefits chart can be found at the link below:

New Compensation Benefits Rates Chart

 

Concurrent Title 38 Disability Compensation and DoD Retirement Benefits for Retirees

A few days ago, I was speaking at an assisted living care facility regarding Title 38 benefits (Department of Veterans Affairs).  These discussions usually involve the adult children of World War II and Korean War veterans so they can have a basic understanding of what benefits their mother/father may be entitled to through the Department of Veterans Affairs (DVA).  The elderly spouse of a retired World War II officer was there and was under the incorrect understanding that a retired veteran cannot receive both compensation under Title 38 and military retirement pay.

While this was the existing rule until 2004, two separate statutory amendments may — and in many cases do — entitle a veteran to both military retirement pay and DVA disability compensation in full.  The Defense Finance and Accounting Service (DFAS) has a good breakdown of the two separate programs: (1) Concurrent Retirement and Disability Pay (CRDP); and (2) Combat Related Special Compensation (CRSC).

A link to the DFAS breakdown can be found at DFAS CRDP/CRSC.

Veterans Affairs Extends Presumption Period for Persian Gulf War Veterans to December 31, 2021

Beginning in 1994, Congress implemented a statutory provision, 38 U.S.C. 1117, for a presumption of service connection for undiagnosed chronic multi-symptom illnesses for veterans who served in the Southwest Area theater of operations during the Persian Gulf War.  Because the Persian Gulf War is still considered a statutorily defined period of war, 38 U.S.C. 1117 applies to more recent veterans with service in Southwest Area (the area is further defined by regulation).  Congress amended 38 U.S.C. 1117 in 2001 and the current definition of “chronic disability” includes: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of sings and symptoms; or (3) any diagnosed  illness that the DVA Secretary determines warrants a presumption of service connection.

From the standpoint of timeline, in order to be entitled to the presumption of service connection, the covered condition must have must have manifested in during service in Southwest Asia or to a ten percent (or more) disability rating during the time following service as defined by the Department of Veterans Affairs through regulation.

The DVA has implemented 38 U.S.C. 1117 in regulation through 38 C.F.R. 3.317.  Over the years, the DVA has extended the period of time for the presumptive period on numerous occasions as the DVA and the National Academy of Sciences continued to evaluate and conduct studies regarding exposure in the Persian Gulf and conditions related to that exposure.  There was a sunset date in 38 C.F.R. 3.317(a)(i) for the presumptive period of December 31, 2016.

As evidenced in the hyperlinked Final Rule below, on October 17, 2016, the DVA extended the presumptive period to December 31, 2021 by amending Section 3.317(a)(1). A link to the regulatory amendment can be found at  https://www.gpo.gov/fdsys/pkg/FR-2016-10-17/pdf/2016-25017.pdf

The rules regarding the presumption for service connection for Persian Gulf War veterans have remained a subject of much confusion over the years.  If you have questions regarding 38 U.S.C. 1117; 38 C.F.R. 3.317, please do not hesitate to contact me at (732) 382-6070 or via email at sdirector@finkrosner.com