Veterans’ benefits and assistive technology considering the possibilities



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VETERANS’ BENEFITS AND ASSISTIVE TECHNOLOGY

CONSIDERING THE POSSIBILITIES

Diana M. Straube

Neighborhood Legal Services, Inc.

237 Main Street, Suite 400

Buffalo, New York 14203

dstraube@nls.org

716-847-0560
INTRODUCTION
The United States Department of Veterans Affairs (VA), (previously known as the Veterans Administration) governs a comprehensive but complicated system of health care. The VA operates over 1400 hospitals, community clinics, nursing homes, domiciliaries and various other facilities, where eligible veterans receive care and services. The VA is also a potential funding source for assistive technology (AT) for many veterans.
Due to the complexity of issues such as eligibility, this is intended to be only a brief overview of possibilities rather than a discussion of how to navigate the veterans’ benefits system. For more information, please contact one of the many Veterans’ services organizations or check out the official VA web site at www.va.gov.
ENROLLMENT AND ELIGIBILITY
There were approximately 26.4 million veterans reported in the 2000 United States federal census. While only a percentage of veterans are enrolled in the VA, enrollment has jumped in recent years, from approximately 3.6 million in 1999, to 6.2 million in 2002. Of that number, 1.4 million have no other private or public health insurance. Further, it is estimated that 41.2% of those enrolled in 2002 reported restrictions or limitations in performing activities of daily living (bathing, eating, getting dressed, using the toilet) or instrumental activities of daily living (shopping, managing money, preparing meals, using the telephone). This is an increase from those reporting limitations in 1999, which was 27.8%. Clearly, veterans health services are an important benefit for those veterans who need AT.
With a few exceptions, a veteran must be enrolled in the VA healthcare system in order to receive VA care and services. Upon enrollment, veterans are assigned to a category, which is determined by a number of factors, including but not limited to: the type of discharge the veteran received; whether the veteran has a disability; whether the disability is service-connected, and if so, the percentage of service-connected disability (how the disability is rated as a percentage); whether the veteran has been determined to be unable to defray the costs of necessary care; whether the veteran receives an increased pension; whether service occurred during wartime.

The veteran’s category is extremely important because it determines eligibility for specific services. Categories are prioritized and a veteran in one category may be eligible for services not available to veterans in another category. When resources become scarce or restricted, veterans in lower categories may even become unenrolled. Each year, the VA must determine which priority categories will be enrolled and must notify veterans of any change in enrollment.


AT-RELATED BENEFITS


Medical Benefits Package:
Enrolled veterans receiving care for any condition are eligible for the “medical benefits package”, which includes durable medical equipment and prosthetic and orthotic devices. 38 C.F.R. §17.38(a)(1)(viii). The veteran who is entitled to a prosthetic device is also entitled to fitting and training, including institutional training. 38 U.S.C. § 1714(a). On the other hand, only certain categories of veterans are eligible for eyeglasses and hearing aids (38 C.F.R. § 17.149).
Guide Dogs and Equipment for the Blind:

Blind veterans entitled to compensation for a service-connected disability may be furnished a trained guide dog and expenses related to travel, lodging and meals where the veteran receives training to use the dog. Mechanical and/or electronic communication equipment necessary to overcome blindness, such as adaptive computers, and computer-assisted devices such as reading machines and electronic travel aids, talking books, tapes and braille literature may also be furnished. 38 C.F.R. § 17.154.


Invalid Lift and Other Type of Therapeutic or Rehabilitative Device:
A veteran who is receiving special monthly compensation or increased pension based on need for aid and attendance may be eligible for an invalid lift or any type of therapeutic or rehabilitative device. 38 U.S.C. § 1717(a)(3)(b), 38 C.F.R. § 17.151.
Invalid lifts may include van lifts, residential elevators and electric hospital beds. In a case that came before the Board of Veterans on appeal, a veteran who received special monthly compensation for a permanent and total disability rating requested a Minivator Residential Elevator so that he could access the second floor in his new home. The Board held that the VNAC must make a determination considering ALL potential legal grounds for VA payment. The matter was remanded back to the VA to determine whether the elevator might qualify as a prosthetic or an invalid lift. Board of Veterans’ Appeals, Docket No. 92-09 702.



Devices for Assisting in Overcoming a Handicap of Deafness:
Devices, including telecaptioning television decoders, may be furnished to any veteran who is profoundly deaf and entitled to compensation on account of a hearing impairment. 38 USC § 1717(a)(3)(c).
Improvements and Structural Alterations:
Improvements and structural alterations may be furnished as home health services only as necessary to assure continuation of treatment for veteran’s disability or to provide access to the home or essential lavatory and sanitary facilities. Costs may not exceed $4,100, in the case of medical services furnished under certain provisions, and $1,200 for services furnished under all other provisions. 38 USC § 1717(a)(2)(A) and (B).
Specially Adapted Housing:
Specially adapted housing with special features or movable facilities made necessary by the nature of the veteran’s disability may be furnished to eligible veterans (entitled to compensation for a permanent and total service-connected disability that meets specified criteria). 38 USC § 2101, 38 CFR § 3.809.
Automobile and Adaptive Equipment:
Assistance for providing an automobile and adaptive equipment may be furnished to eligible veterans receiving compensation for a number of enumerated disabilities if the disability is the result of an injury incurred or disease contracted in or aggravated by active service. 38 USC §§ 3901, 3902. Adaptive equipment includes but is not limited to power steering, power brakes, power window lifts, power seats, special equipment necessary to assist person into and out of the automobile or other conveyance and air conditioning when necessary for health and safety of the veteran, even if the automobile will not be operated by veteran, and any modification of the size of the interior space if needed because of physical condition of such person in order for such person to enter and operate vehicle. 38 USC § 3901(2). The Board of Veterans’ Appeal held that a veteran who was unable to transfer from his wheelchair to the driver’s side seat safely was entitled to have his truck lowered to the maximum extent possible under safety guidelines for the vehicle. Board of Veterans’ Appeals, Docket No. 03-18 663A.
Vocational Rehabilitation
The VA provides a wide range of services to enable veterans with service-connected disabilities to attain maximum independence in daily living and overcome an


employment handicap. As additional benefits, a veteran who is involved in a rehabilitation plan may receive:
Prosthetic appliances, eyeglasses and other corrective or assistive devices;

Services necessary to enable a veteran to achieve maximum independence in daily living and services to the veteran's family as necessary for effective rehabilitation;


Language training, speech and voice correction, training in ambulation, and one-handed typing;
Orientation, adjustment, mobility, reader, interpreter, and related services;
Telecommunications, sensory and other technical aids and devices. 38 U.S.C. § 3104.
Generally, a veteran is eligible for these services for a period of twelve years after the date of the veteran’s discharge from active service.
DEFINITION OF NEEDED “CARE”
Care is defined as that which is needed to promote, preserve, or restore health and must be in accord with generally accepted standards of medical practice. 38 CFR §17.38(b).
Promote health means care that will:
Enhance the quality of life or daily functional level of veteran;
Identify a predisposition for development of a condition or early onset of disease which can be partly or totally ameliorated by monitoring or early diagnosis and treatment; or
Prevent future disease.
Preserve health means care that will:
Maintain the current quality of life or daily functional level of the veteran;
Prevent the progression of disease; or
Extend life span.

Restoring health means care that will:


Restore the quality of life or daily functional level that has been lost due to illness or injury.
VA CIVILIAN HEALTH AND MEDICAL PROGRAM (CHAMPVA):
CHAMPVA covers a percentage of the cost of health care for eligible dependents and survivors of veterans, unless the service is available directly from a VA medical facility, in which case there is no cost. Eligible dependents include:
Spouse or child of veteran adjudicated with permanent and total service-connected disability;
Surviving spouse or child of a veteran who died as a result of service-connected condition or who, at time of death, was adjudicated with permanent and total service-connected disability;
Surviving spouse or child of a person who died in the line of duty while on active military service, not due to his own misconduct.
An eligible child retains eligibility for a period of time if he or she incurs a disabling illness or injury while pursuing a full-time course of instruction approved under 38 USCS Chapter 36, not due to the child’s own misconduct, and which results in an inability to continue said course of study.
DUE PROCESS AND APPEALS
“Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.” 38 CFR § 3.103(a), 38 USC § 5103A.

The Board is bound by applicable statutes, regulations of the Department of Veterans’ Affairs, and precedent opinions of the General Counsel of the Department of VA. The Board is not bound by Department manuals, circulars or similar administrative issues. 38 CFR § 19.5. The Board lacks jurisdiction to determine whether a particular item is medically necessary. 38 CFR § 20.101(b), 38 USC § 511


In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

VA-SPONSORED REHABILITATION SPECIAL EVENTS:
Based on the VA’s commitment to improving the quality of life for veterans with disabilities and fostering better health through sports competition, and in recognition of the progress and recovery made through the incorporation of creative arts into the VA recreation therapy programs, the VA sponsors several annual events.
In April of 2007, the VA hosted the 21st National Disabled Veterans Winter Sports Clinic. Expected participants this year included veterans who receive health care at a VA medical facility and active duty military personnel returning from operations in Iraq. The purpose of the clinic was to provide disabled veterans with opportunities for self-development and challenge through sports and leisure activities.
June 19-23, 2007: the 27th National Veterans Wheelchair Games. The games are open to military service veterans with mobility disabilities who use wheelchairs for sports competition.
August 27-31, 2007: 2007 National Veterans Golden Age Games bills itself as the premier senior adaptive rehabilitation program in the US, designed to improve the quality of life for all older veterans, including those with a wide range of abilities and disabilities. “Physical activity and friendly competition engage the mind as well as the body, and recreation therapy fills a special need in the lives of older patients at VA health centers across the country”. The games support VA’s comprehensive recreation and rehabilitation therapy programs.
October 22-28, 2007: 2007 National Veterans Creative Arts Festival features competitions in music, drama, dance, creative writing and art for veterans treated in the VA system.





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