"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Monday, August 23, 2010

Chandler: Hartness Revisited

Chandler: Hartness Reviewed

or Should You Be Receiving a Higher Non-Service Connected Disability Pension

The decision in Howard E. Chandler v. Eric K. Shinkseki, Opinion Number 08-0932, decided August 12, 2010, revisited the previous decision of Hartness v. Nicholson, 20 Vet. App. 216 (2006). The Secretary sought to alternatively overturn or limit the effects of Hartness. The Court in an en banc decision reversed and remanded the decision thus upholding Hartness and finding for the veteran.

In Hartness, the Court determined that under Section 1521(e) a veteran who is 65 years of age or older and conforms to the service requirements of Section 1521 (which is that a veteran have served during war time for at least 90 days), any requirement that the veteran be permanently and totally disabled or have a disability rated as permanent and total is excluded, or put another way, the veteran is, in effect, permanently and totally disabled as a result of his age.

However, in VA Fast Letter 06-28, which came out as a result of Hartness, the VA ordered that for a claim for a pension received from a veteran age 65 or older who is already receiving a non-service connected disability pension under Section 1521, the adjudicator should not assume permanent and total disability as a result of age. The result is that the Hartness holding (that wartime veterans age 65 or older are not required to have a disability rated as permanent and total in order to qualify for a pension under section 1521(e)) does not apply to veterans who were granted non-service connected pension under section 1521(a) prior to their 65 birthday and therefore are already receiving a non-service connected disability pension. Those veterans are required by the VA to have a single disability rated at 100% to qualify for a pension under 1521(e) even when they are 65 or older. The VA essentially argued the ruling from Hartness was wrong and pension benefits under section 1521(e) are intended only for veterans who are significantly disabled and not for veterans who do not have a single disability rating at 100%.

The Court upheld Hartness and stated the VA’s interpretation would be absurd because the disability of the veteran is not the deciding issue but instead it is the age of the veteran and thus “The result prevents one class of totally disabled veterans from being treated less generously than a similarly situated class of veterans who are not totally disabled and is consistent with the rule that ambiguity in title 38 should be resolved in favor of veterans.” Id. at *11.

Importantly, two judges (Chief Judge Kasold and Judge Greene) wrote a dissenting opinion that essentially finds the Hartness decision was incorrect and would have overruled that decision. The dissent makes it more likely the VA will appeal to the Federal Circuit, which means this might not be the last word on Hartness.

The practical impact is that any veteran 65 or older who was denied a higher pension on the basis of Fast Letter 06-28 should talk with an attorney about their case.

No comments:

Post a Comment