Raugust: VA Medical Benefits and the 24-Month Rule

Raugust: VA Medical Benefits and the 24-Month Rule

The case of Richard C. Raugust v. Eric K. Shinkseki, Opinion Number 08-2064, decided June 11, 2010, was a matter of first impression where the Court affirmed the constitutionality of the 24-month minimum service requirement.

The veteran served for 17 months and 25 days before receiving an honorable discharge. The Court noted the reason for his separation was for “misconduct – pattern of misconduct”. The veteran requested access to VA health care benefits but was denied because of the 24-month minimum service requirement. This rule which was established by Congress only applies to those who enlisted after September 7, 1980, and requires an individual serve at least 24 continuous months of active duty to qualify for any VA benefits. Importantly, there are some exclusions from the 24-month minimum service requirement, which include: discharge based on hardship or early discharge agreement or due to a disability.

The veteran appealed on two grounds: a failure to assist and a constitutional challenge to the rule.

Regarding the failure to assist, the Board admitted it did not find the duty to assist satisfied but instead said any deficiencies are moot because no reasonable possibility exists that additional records would substantiate the claim. The veteran argued the service records might have addressed some of the exclusions to the 24-month minimum service requirement. The Court admitted that conceivably records could address an exclusion, but then pointed to the fact there was “no specific reason to believe” records would reveal an exclusion because the veteran had not made a specific and credible allegation that an exclusion would be established by the records. The Court found without a specific and credible reason to believe the additional records would tend to establish an exception, the Board did not commit clear error in concluding there was no need to obtain additional records.

Regarding the constitutional challenge, the veteran argued the 24-month minimum service requirement violated the guarantee of equal protection. The argument was that the provision created an arbitrary absurdity because only fractionally longer or shorter service could determine eligibility. The Court properly assessed under equal protection clause jurisprudence and found a rational basis for the creation of the 24-month minimum service requirement, reduction of attrition.

The problem with this decision is that the Court seems to have forgotten the VA duty to assist is founded upon the principle that the system is proudly non-adversarial and gives the benefit of the doubt to the veteran. The result is a large number of veterans are unrepresented prior to the case reaching the Court. What happens to an attorney that looks at the case and realizes the veteran has a good argument for fitting within an exclusion to the 24-month minimum service requirement but that the records are not a part of the record and the veteran did not know to make the argument earlier? Should he just tell the veteran to start over or can he rely on the fact that the VA did not fulfill the duty to assist and use that failing to get the case sent back to the Board to address the information and arguments he has found?

In that vein, perhaps the lesson to a veteran is to find representation before you reach the Court of Appeals. Of course, we can hope the Federal Circuit Court of Appeals gets its crack at the case and re-imposes on the VA and the Court of Appeals for Veterans Claims the inviolate requirement of the duty to assist.

Decision drafted by Judge Hagel and joined in by Judges Moorman and Lance.