Issue 1 Retroactive Disability Payments Coming
According to Defense Department and Veterans' Affairs (VA) sources, some disabled retirees due retroactive pay could start to see their payments in mid-October if all goes as planned. A small number may see payments before that; however, VA officials caution that, if any unexpected glitches crop up, the payments will be delayed until the second half of January. That's because they'll have their hands full at the end of the year reprogramming and implementing new pay rates for 2007.
Over 100,000 retirees now drawing either Combat-Related Special Compensation (CRSC) or Concurrent Retirement and Disability Pay (CRDP) ultimately will receive back payments -- and that number is growing daily with new awards. Because of the complexity of calculating who is due how much (individual circumstances vary widely, and many cases require manual review), the majority of the payments will likely be phased in from January through next summer.
Why is retroactive pay due? While the VA disability award letter usually establishes a retroactive effective date, the VA doesn't initially make retroactive payments for retirees with less than a 100% disability rating. That's because there's usually at least some offset required for retired pay already received. If the VA paid all retroactive awards immediately, it would cause major headaches for many disabled retirees, who would then have to pay back large amounts of their military retired pay.
Only if and when a disabled retiree is awarded CRDP or CRSC can the VA find out whether back disability pay is due - but it needs a ton of data from the Defense Department to figure out how much. On the other hand, retirees who experience changes in their disability awards may also be due retroactive CRSC/CRDP payments from the Defense Department.
The bottom line is that the new and complicated CRSC and CRDP programs have created major administrative and budgetary headaches for Pentagon and VA administrators. Their first priority has been to get the pays started while minimizing confusion or aggravation for disabled retirees. Now, they've invested months of combined effort to change their policies, systems, and budgets to finish the hard part - figuring out who is due how much in retroactive payments.
Defense Finance and Accounting Service (DFAS) sources say the affected retirees will receive specific details at the time their retroactive payment is made. DFAS expects to publish a detailed news release later this month.
Issue 2 VA Court Overturns Agent Orange Rule
The Court of Veterans Appeals ruled August 16 in the case of a Navy veteran who had appealed an earlier decision by the Board of Veterans' Appeals on his Agent Orange disability claim. The veteran, Mr. Jonathan L. Haas, had claimed service connection for diabetes mellitus and other conditions due to exposure to dioxin (Agent Orange) while serving aboard a Navy vessel during the Vietnam War. The Board denied his claim, since VA regulations limited potential service connection due to presumed exposure to herbicides only to veterans who actually set foot in Vietnam. "Blue Water" sea service veterans have long maintained that the "on-shore only" rules were arbitrary and unfair.
The Court essentially swept away the VA's rule. In reversing the Board's decision in Haas' case, the Court said the law was "not clear on its face concerning the meaning of the phrase 'service in the Republic of Vietnam'" [emphasis added]. It said the law doesn't "limit [application of the] presumption of service-connection for herbicide exposure to those who set foot on the soil of the Republic of Vietnam."
Specific diseases the VA presumes to be service-connected for qualifying Vietnam service include diabetes mellitus (Type II), Hodgkin's disease, prostate cancer, multiple myeloma, certain birth defects such as spina bifida in the children of Vietnam veterans, and chronic and lymphocytic leukemia. For a complete listing and related information click here.
The Court did not actually award a disability to Haas, but sent his case back to the Board for that determination. If the Board rules in his favor, the Court directed that his other Agent Orange-related medical conditions also must be compensated.
What does the ruling mean for others? The implication of the court ruling is that all who received a Vietnam Service Medal and who contract one of the listed diseases could expect the VA to rule that disease as service-connected.
However, the VA can appeal the Court's decision. MOAA recommends that members and other veterans like Mr. Hass who served offshore but did not set foot in Vietnam, and who suffer from diseases or conditions that they believe to be caused by exposure to Agent Orange should consider filing a claim for disability. Members who have had such claims denied may wish to re-file based on the Court's decision. We strongly recommend that veterans seek the advice and assistance of an experienced veterans' service organization before proceeding.
Issue 3 Medicare Outpatient Physical Therapy Payments at Risk
Barring congressional action before the end of the year, Medicare payments for outpatient physical therapy will be limited to a flat $1,740 a year, starting in January. But a bipartisan effort is underway in the House to change the law and suspend the payment cap.
The cap on outpatient physical, speech-language and occupational therapy services by any providers other than hospital outpatient departments was put in law by the Balanced Budget Act of 1997. That law required a combined cap for physical therapy and speech-language pathology, and a separate cap for occupational therapy, but Congress delayed its implementation for several years.
The $1,740 annual cap went into affect in January 2006, but Congress authorized an exception if such services are determined to be "medically necessary" -- which most certainly are. But this exception is due to expire at the end of 2006.
In May, Reps. Benjamin Cardin (D-MD) and Philip English (R-PA) authored a bipartisan letter urging the leaders of the Ways and Means and Energy and Commerce Committees (which oversee the Medicare payment issue) to repeal the cap. At the very least, the letter said, the medical necessity exception should be extended through 2007.
177 representatives joined Cardin and English in signing the letter.
Absent a repeal of the cap or extension of the exception, TRICARE For Life (TFL) beneficiaries will experience more out-of-pocket expenses and may have to seek these services in a hospital setting.
Military eligibles will have some protection in that TFL will become primary payer after the Medicare cap is reached, but TRICARE deductibles and copays apply after that point.
Click on H.R. 916 and S. 438 and enter your zip-code to send a MOAA suggested message to your legislators urging them to repeal the Medicare therapy caps.
Issue 4 National Media Highlight MOAA's SBP Campaign
MOAA's efforts to end the Survivor Benefit Plan (SBP) "Military Widow's Tax" have gotten national media coverage in the last two weeks, with a CNN feature on today's (Aug 25) "American Morning" and a top-of-the-page story in the August 19 New York Times.
The MOAA staff provided extensive background materials and interviews with the Times and CNN reporters. With the help of Military Coalition partner Gold Star Wives of America, Inc., we arranged for CNN to have an on-air interview with Mrs. Suzanne Stark, whose husband was killed in Iraq in 2003. The CNN reporter, Barbara Starr, used MOAA-provided charts to highlight the inequity of subtracting VA survivor benefits from military SBP annuities in cases where military service caused the member's death.
"Oh, how awful," exclaimed CNN anchor Soledad O'Brien, "to have a loss, a horrible loss, you know, be leading your family alone and then -- now you have to go and take on this legal battle, as well." We agree.
CNN said the Defense Department declined an interview request, but said in a statement: "There is no apparent need to provide both benefits."
The Times article also quoted advocates from MOAA and the Gold Star Wives.
MOAA will send copies of both stories to the House and Senate leaders now mulling whether to retain the Senate-passed fix for this problem in the final FY2007 Defense Authorization Bill, urging them to find a way to do the right thing and end the "Military Widow's Tax".
You can help by sending a MOAA-suggested message to your legislators on this issue.
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