Army Review Boards Agency New Webpage for Discharge Upgrades . . . And a Residual Question

On the heels of DoD Secretary Hagel and DA Secretary McHugh’s recent guidance concerning applications for discharge upgrades when there is an underlying issue concerning post-traumatic stress disorder (PTSD), the Army Review Boards Agency (ARBA) has launched a new website devoted to the issue.   The webpage can be accessed at ARBA Discharge Upgrade/PTSD.

The above webpage explains both how to apply for an upgrade of discharge and how ARBA (Army Board of Correction of Military Records and Army Discharge Review Board) will apply the “liberal” consideration when there is evidence that PTSD may have caused the underlying misconduct.

The ARBA webpage explains that the “liberal” consideration will only apply to veterans who received an other than honorable  (OTH) discharge.  As I commented in a prior blog (accessible at, it was unclear to me whether Secretary Hagel’s September 3, 2014 guidance was directed exclusively towards OTH discharges or more broadly towards any unfavorable discharge.  Certain language in the September 3, 2014 guidance clearly referenced “punitive” legal actions, however other language appeared to limit the guidance to OTH discharges.

If ARBA is limiting “liberal” consideration for exclusively OTH discharges, than this guidance would not apply to General (Under Honorable Condition), which is a less onerous form of administrative discharge than an OTH, and punitive judicial discharges (to include bad-conduct discharges (BCD)).  I look forward to seeing guidance from the other service branches to see if Secretary Hagel’s guidance is interpreted consistently throughout all branches.


Appealing reductions in PCA hours under Medicaid

If the State Medicaid program cuts your hours of service, appeal, appeal, appeal. NJ Medicaid  administers certain of its home care services through a program called the Personal Preference Program. The number of allocated hours of service is decided by the Division of Medial Assistance and Health Services (DMAHS). Personal Care Assistant (PCA) services are provided to the participant at a set hourly rate, and the DMAHS cash grant to the participant is calculated accordingly. From time to time, through a review and screening assessment, DMAHS may review the hours and issue a Notice of Reduction. The participant has the right to appeal. The Division of Disability Services can carry out an independent assessment, and the participant retains the right to appeal that decision. Hearings can be had at the Office of Administrative Law before an Administrative Law Judge. DMAHS makes the Final Agency Decision, and that can be appealed to the Appellate Division of Superior Court.

In a case decided yesterday, the Appellate Division vacated a major reduction in hours in the case of D.W. v. DMAHS and Division of Disability Services, docket no. A-0384-13T4 (decided Dec. 15, 2014).a0384-13. The case was not approved for publication, which means it is not binding on other tribunals. In this case, D.W. was 48 and had severe disability due to Down’s Syndrome leaving her with the mental capacity of a four year old child. She was totally dependent in her Activities of Daily Living and had additional medical conditions which further complicated her care. She had been receiving 40 hours of PCA services since 2009.  When her HMO reassessed her, the hours were reduced by 50% to 20 hours/week. She requested a hearing, was reassessed, and 25 hours/week was recommended. She appealed. The Appellate Division found that there was no dispute that D.W.’s condition had deteriorated since 2009, yet there was no evidence in the record explaining why a reduction was warranted. The Agency’s reliance on its newer assessment tool was apparently insufficient proof. The Court vacated the decision and remanded for reconsideration by DMAHS.

In this case, the participant requested that the reduction of hours be stayed pending appeal. That stay was continued by the Court.

Call for representation concerning Medicaid eligibility and notices of reduction … 732-382-6070

Veterans Consultation . . . What Does a VSO/Attorney Need to See

Rarely a day goes by where a veteran — some days a baker’s dozen — does not contact me via email ( or telephone ((732) 382-6070) concerning issues they are having with the Department of Veterans Affairs.  These contacts come in from all geographic areas (to include out-of-country) and range in issue from initial claim processing confusion to issues pending since before I was born . . . that is not an overstatement.

It’s common that the veteran doesn’t need formal representation, simply guidance on how to proceed and the Veterans Law Section of Fink Rosner Ershow-Levenberg is happy to provide.  I suspect that all individuals who represent veterans before the Department of Veterans Affairs (be it Veteran Service Officer or attorney) encounter similar issues, so I’m going to try and identify the information I would like to see: (1) after an initial contact from a veteran; or (2) during a consultation to discuss formal representation.

Initial Contact.  During initial contact, I am predominantly concerned with procedural status and what issues (disabilities) are pending before the VA.  To triage, the main documents I’d like to see are the veteran’s most recent decision (be it initial Rating Decision, Statement of Case, decision from the Board of Veterans’ Appeals) and the most recent notification/correspondence they received from the VA.  This will normally provide sufficient information for me to ascertain the current procedural status, what evidence the VA reviewed, some indication of what prior decisions have been issued, and the veteran’s current disability rating.  I’m a child of the computer generation, so I prefer to receive via electronic mail, however, facsimile or hard mail is fine.

Formal Consultation. If I believe formal representation is possible (or in certain circumstances, when I need to get the veteran tracking with a more personal touch), I try schedule a formal consultation immediately.  At the formal consultation (via telephone for out-of-area veterans or in-person), I would like to see a number of items: (1) a copy of all VA decisions and correspondence that the veteran has in their possession; (2) a copy of any documents that the veteran has filed with the VA [if they have maintained copy]; (3) a copy of any military service documents the veteran has [DD-214, service personnel documents, service medical records]; (4) a copy of post-discharge medical records if possible [recent VA treatment records can normally be downloaded at Blue Button at]; and (5) contact information for the veteran’s physicians.  Once formal representation begins, I’ll be able to obtain a copy of the veteran’s administrative record [called a C-File] and Official Military Personnel File [OMPF]; however, the above documents usually provide me with sufficient information to understand the sometimes lengthy course of VA adjudication and begin developing a plan on how to remedy whatever issue is unresolved before the VA.

If you have questions regarding your eligibility for benefits before the Department of Veterans Affairs, please don’t hesitate to contact me at (732) 382-6070 or via email at

CAVC Decision Analyzing 38 C.F.R. 3.54(c)(2) (Married One Year Prior to Death)

On December 4, 2014, the Court of Appeals for Veterans Claims issued a decision in Gazaille v. McDonald (hyperlinked).  The majority held that the claimant, the wife of a deceased Vietnam War veteran, was not entitled to Dependency and Indemnity Compensation (DIC) because she did not meet the statutory requirements (38 U.S.C. § 1304) or regulatory requirements (38 C.F.R. § 3.54(c)(2)) of being married for at least one year prior to death.

Factually, the claimant and veteran were married 58 days short of the one year length-of-marriage requirement under Section 3.54 (c)(2).  The majority found that the regulatory and statutory language of 38 U.S.C. § 1304 and 38 C.F.R. § 3.54(c)(2) were unambiguous and required the marriage to the deceased veteran to be “for one year or more.”  The majority rejected claimant’s argument that the legal concept of “equitable relief” is possible against the Government.

Before I comment on the concurring opinion of Judge Greenberg and dissenting opinion of Chief Judge Kasold, it’s important to note that the one-year length of marriage requirement is under 38 C.F.R.  § 3.54(c)(2) is not the sole basis for establishing status as the “spouse” for DIC eligibility.  Even if not married one-year prior to death, Section 3.54 provides other means of establishing status to include, inter alia: (1)  if the marriage was less that one year but death and marriage occurred within 15 years of “expiration of 15 years after termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated”; or (2) “[f[or any period of time if a child was born of the marriage (Section 3.54(d) further defining “child born”)).  I raise this issue because I just reviewed a decision where the Regional Office seemingly overlooked the application of 38 C.F.R. § 3.54(c)(1) and denied entitlement solely on the basis of the one-year marriage requirement under Section 3.54 (c)(2).

Back to the holding in Gazaille.  Judge Greenberg, issued a concurring opinion, concurring in result but commenting that the CAVC may have equitable powers to grant relief. . . just not based upon the facts in Gazaille. Judge Greenberg commented in Footnote I that:  “I note that if the appellant obtains, and proffers, appropriate evidence, she may present it to the court in a petition for extraordinary relief premised upon equity.”  As another aside, Footnote I presents an interesting question of whether the CAVC has jurisdiction to review an initial petition for extraordinary relief based upon equity.  In my humble opinion, Clinton v. Goldsmith, 526 U.S. 529 (1999) (discussing jurisdiction under the All Writs Act), may be the best reference point for such a question.

In Gazaille, Judge Greenberg further opined that the CAVC’s judicial powers as an Article I court should be similar in scope to the judicial powers of an Article III court and cited to a number of cases analyzing equitable relief under Article III, U.S. Constitution.  As we noted in a prior blog, at Court of Appeals for Veterans Claims – Scope of Judicial Powers, Judge Greenberg had expressed similar concerns in a concurring opinion in Pacheco v. Gibson.  In Pacheco, it appears the Judge Greenberg was analyzing the possibility of equitable relief solely as a Congressionally-created Article I Court under Title 38.  In Gazaille, Judge Greenberg focused more on the comparative scope of “judicial” powers of an Article I Court to an Article III Court and the intrinsic powers of a Article III Court to administer equitable relief.  Judge Greenberg, a well-respected NJ attorney prior to judicial appointment (and former Army Judge Advocate General), cited to a number of NJ Court decisions.  As an aside, NJ’s Chancery Division has very unique judicial powers, and some of the NJ cases cited were not analyzing equitable powers under Article III, US Constitution.  Regardless, the scope of judicial powers under Article I, US Constitution, has an unresolved history and jurisprudence, and a case stemming from the CAVC may be the vehicle for review by the US Supreme Court in the future.

Chief Judge Kasold issued an equally interesting dissenting opinion.  Chief Judge Kasold based his dissent on claimant’s contention that her husband died prematurely due to VA medical malpractice and the corollary issue of entitlement under 38 U.S.C. § 1151.   Chief Judge Kasold held in toto:  “[A]lthough equitable estoppel against the Government is rare, if ever it were to apply the premature death of a veteran caused by VA medical malpractice that would otherwise prevent the surviving spouse of a valid marriage from receive DIC is just such a case.  Because equitable estoppel is warranted in such circumstances, I would remand this matter for the Board to ensure development of Mrs. Gazaille’s assertion that her husband’s death was premature due to VA medical malpractice.”

If you have questions regarding your eligibility for survivor benefits before the Department of Veterans Affairs, please don’t hesitate to contact me at (732) 382-6070 or via email at


Elder Care Planning: Building your Team

Tuesday evening I was privileged to participate in a lively panel at the JCC in Scotch Plains that was answering  questions on a wide range of elder care/ elder law issues. The panelists were terrific — Michele Morandi, D.O., geriatric physician based in Union and affiliated with Center for Hope Hospice ; Chris Kaiser, MSW, LCSW, Director of the Older Adult Services at Jewish Family Services ; Dale Ofei-Ayisi, MA, of the Rutgers U. COPSA dementia assessment program in Edison  and Donna Farrell of the Union County Division on Aging.

There were certain major themes that crossed the lines from medical to legal to social services: invest the time to plan ahead; failure to plan can cause great expense and trouble at a time of crisis; a thorough medical evaluation should be part of the dementia assessment process; the caring family members need to be practical and objective to help an aging person deal with their increasing limitations; there are many governmental services available but none that pay for 24/7 care in the home.

At the end of the program, I said that although issues are intertwined, an aging person needs a team for advice. The elder law attorney evaluates the Medicaid eligibility and designs an estate plan, creates the documents to implement a plan, and pursues any needed court proceedings. The accountant/CPA prepares the income taxes and evaluates & advise you on tax issues. The life insurance advisor gets you the insurance you may need to fund special needs trusts for disabled family members or to otherwise take care of those left behind. The reverse mortgage specialist gets you access to your home equity when the liquid assets are gone. The long term care insurance specialist helps you in that middle 40 – 70 age bracket so you have insurance to pay for home health care in the event of dementia or a catastrophe. The physician follows the patient over time and manages the health issues. The dementia assessment specialist can help you identify the nature of the dementia (diagnosis) so it can be understood and properly handled. The financial advisor guides your decisions about investments and use of specific assets. And the geriatric care manager (GCM) can assess the safety of your home and oversee/coordinate the delivery of care for you in your home. Then of course, you need close family or friends to be there for you as well, whether as your fiduciaries (power of attorney etc) or caregivers or companions.

There may even be a need for more help: a Medicare gap policy/ choice plan specialist; a medicare appeals specialist; an interior designer who is familiar with universal design to keep your house safe for you. The bottom line is, you need a team, and careful planning can prevent a crisis

Call for a consultation to start planning for your elder care legal needs: 732-382-6070