Sean Connolly Named as Conn. Commissioner of Vet. Affairs

Yesterday, Sean Connolly, Army Judge Advocate General, was named as commissioner of Connecticut’s Department of Veterans Affairs.  More information concerning his appointment can be found at Connecticut Mirror.

I don’t believe I personally had any interaction with Mr. Connolly (though I recall reviewing court-martial records where he was counsel); however, I know many of my brethren both served and were friends with Mr. Connolly and would appreciate knowing that veterans in the great state of Connecticut are in familiar hands.

 

Fountain v. McDonald (Tinnitus), VA TL 10-02, and MOS Noise Exposure List

On February 9, 2015, the Court of Appeals for Veterans Claims (CAVC) issued an  opinion stating “[as] urged by the veteran, that [38 C.F.R.] § 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an “organic disease[] of the nervous system.”  That decision can be accessed at Fountain 13-0540 (Fountain v. McDonald).  In essence, the CAVC overturned a provision in VA Training Letter 10-02 (Adjudicating Claims for Hearing Loss and/or Tinnitus) that found that “unlike hearing loss, tinnitus may not be service-connected as a presumptive condition under 38 C.F.R. § 3.309(a) because it is a subjective symptom rather than an organic disease of the nervous system.”

In rejecting the Secretary’s argument, the CAVC further held that nothing “preclude[es] establishing service connection for tinnitus on the basis of continuity of symptomatology [] and the appellant is not precluded from seeking VA benefits for his claimed tinnitus by way of the chronicity or continuity-of-symptomatology provisions of §§ 3.303 and 3.309(a).”

I’m aware that many veterans and advocates have had trouble finding an access point on the Internet for VA TL 10-02 and the Military Occupational Specialty (MOS) Noise Exposure Listing [which includes MOSs for USMC/AF/NA/USCG].  I’ve uploaded those documents at Duty MOS Hearing Loss Probability Chart-VA Fast Letter 10-35 and VA Training Letter 10-02.

What is Hospice care all about, really?

Palliative care is a specialized team approach to helping a patient to cope with the debilitating symptoms of certain serious complicated illnesses such as parkinsons Disease, heart failure, kidney failure, or COPD. The patient is receiving curative treatment and emergency room care during acute episodes of illness, and can receive dietary support, pain management, grief counselling, massage and other forms of care from the palliative care team of health professionals. This can greatly improve the patient’s ability to cope with the symptoms of their illness.

Palliative care services are generally provided at the bedside in a hospital or skilled care facility (nursing home or rehabilitation center) and can still be covered by certain health insurance programs such as Medicare. That would include room and board under Medicare part A . Of course each insurance plan has to be scrutinized to verify the coverage.

http://www.caregiverslibrary.org/caregivers-resources/grp-end-of-life-issues/hsgrp-hospice/hospice-vs-palliative-care-article.aspx

http://www.medicare.gov/coverage/hospice-and-respite-care.html

Hospice care is sometimes referred to as “palliative care,” but is really something different. It is an alternative to curative treatment,  for a patient who no longer wants medical treatment, and is often provided in the home . When a person with terminal illness feels that they have exhausted the benefits of ongoing aggressive treatment, they may decide that it is time to forego further “treatment” and focus instead on remaining as comfortable as possible for as much time as they have left.. The patient or their health care proxy decision-maker opts out of further curative treatment. The patient then will receive palliative care and pain control. The patient may be at home, in a health care facility or in a hospice facility. Medicare does not pay the room and board charges for hospice care. Although the point of decision may be more apparent for certain patients whose cancer treatment is no longer productive, there can also come a time when further treatment will be declined by a patient with stage four heart failure, or who has advanced alzheimers dementia  and other progressively degenerative clinical conditions such as congestive heart failure or kidney failure. http://www.njhospice.org/

It is very important that all patients sign a health care proxy (to designate their medical decision-maker should they become incapable of making decisions), and if they have particular wishes regarding the use or non-use of lifesaving treatment,  an advance directive. When in the hospital, they or the health care proxy needs to make their wishes known so that the treatment doesn’t run away with the patient at a time that the patient or their proxy prefers to forego treatment.. In New Jersey, physicians must discuss these issues with the patient and complete a form called POLST setting down the patient’s wishes. http://www.nj.gov/health/advancedirective/polst.shtml

Elder Cae requires a team approach. The palliative care team can greatly enhance the family’s experience at the end of life.

 For legal advice on preparation and implementation of health care directives, powers of attorney and elder care planning, call … 732-382-6070

Decisions Conceding Service in Vietnam and the Little Things

Of recent, we had a few favorable decisions that address similar issues than may provide insight for veterans with similar concerns.  In this Blog, it involves proof of service in the Republic of Vietnam.

In terms of the little things, the now-updated version of Acrobat Reader permits me to save already-filled Standard Form (SF) 180s.  This form is used to make a request for military personnel records from the National Personnel Records Center.  Thank you, Adobe.

1. Concession of Exposure due to Located Transfer Orders from Vietnam

Most recently, the Department of Veterans Affairs (VA) conceded exposure to Agent Orange for a Vietnam-era Navy veteran.  This concession was based upon now-located transfer orders from Da Nang, Republic of Vietnam.

Upon representation, we had filed a request for records with the above-mentioned National Personnel Records Center (NPRC).  Even before receiving copy of the veteran’s Official Military Personnel File (OMPF), the veteran recalled maintaining copy of his 201 File after exit from service.  Upon review, the transfer orders from Da Nang were located within.  I helped the veteran draft a Declaration under Penalty of Perjury pursuant to 28 U.S.C. § 1746 (veterans can use the VA Form 21-4138) explaining the nature of his service in Vietnam.  Last week, the VA conceded service in Vietnam based upon transfer orders from Da Nang, granted conditions related to Agent Orange (TCDD) exposure, and we are now addressing some of the downstream issues.

AAR for service members — as I’m sure some smart SSG told you in service — maintain copy of your service/medical records upon discharge. My gratitude to one smart veteran who made my life (and, consequently, his claim) infinitely less complicated.

2. Concession of Service in Intercoastal Waters of Vietnam

Part of the AAR in the second case, involves faith . . . faith in the veteran’s recollection of events related to his claim for compensation.

In this veteran’s case, the veteran had explained that the Board of Veterans’ Appeals had remanded his case many years ago on the issue of whether his Navy service aboard the U.S.S. Vancouver (LPD-2) constituted service in the intercoastal water of Vietnam.  He was uncertain of status and had moved twice in the intervening years since remand.  I accepted representation, in part, to get the veteran’s claim procedurally tracking regardless of appellate status (appellate status normally a predicate for representation).

Upon reception of the veteran’s C File, I quickly assessed that the veteran was correct, there was still an unadjudicated Board of Veterans’ Appeals remand from 2011.  Thankfully, I also received copy of the veteran’s OMPF proximate to that time.  His personnel records clearly evidenced participation in amphibious assaults into the Republic of Vietnam.  Between the contact with Regional Office and myself, an error in VACOLS was corrected, and the VA issued a decision conceding service in Vietnam and exposure to Agent Orange.  While there are some issues left to resolve before the Board of Veterans’ Appeals, the big-picture issue was resolved.

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 sdirector@finkrosner.com.

Trust Reformation? What’s that?

Trusts are prepared with an eye toward longevity. A trust is designed to protect assets for benefit of a  beneficiary, both now and for the future. The Trust will specify who will manage it now (the Trustee) and will typically contain a list of successor trustees who can step in later if necessary, and a mechanism for someone to appoint a successor Trustee if there ever is an unfilled vacancy. The Trust is for the living and the not-yet-born. The Trust will specify who receives the funds if a beneficiary dies. The trust will specify the terms and limitations on distributions. A Trust may last for one lifetime or may morph into another form after the death of the primary beneficiary.

Sometimes, the trust is not written in a way that correctly addresses the concerns of the person who established the trust. This could be due to an error or misunderstanding on the part of the “scrivener” (the person who actually “wrote” or prepared the trust). Sometimes, laws that control the effect of such trusts may change, and the original creator (grantor) may not even know it. And sometimes, the original purpose of the Trust is being frustrated due to a change in circumstances after many years. The Trustee of the Trust may discover that certain language in the original trust has now created ambiguities, or is making the beneficiary ineligible for governmental benefits when they should have been eligible.A Trust that was erroneously written as a general discretionary trust may need to be amended to be a special needs trust. What can be done if it’s an irrevocable trust? Generally, a court petition will be needed, and this is called “trust reformation.”

There are two primary legal theories on which a court in New Jersey can “reform” or amend an irrevocable trust. One theory is “scriviner error” — the scriviner knew what needed to be done, and what the grantor wanted, but made an error in the way s/he wrote the trust. The other theory is that it is necessary to reform the Trust to conform to the grantor’s intent — circumstances or laws have created a vacuum within the trust, there’s a lack of clarity as to whether a certain person is intended to be a beneficiary, or law has changed and more specific language is now required in order to adequately protect the Beneficiay the way the grantor wanted.

The party who petitions the court must prove by “clear and convincing evidence” that the amendments should be done and are consistent with the grantor’s actual intentions. The original scriviner of the trust may have to be subpoenaed to testify. Everyone who has a stake in the trust will have to be given Notice of the proceeding. While the court will rely heavily on the express terms of the document, extrinsic evidence can be presented in these cases. Substantial proof will be required, and often that proof must relate back to the time the Trust was created.

When legal problems occur, the law provides a remedy. Don’t despair – just call a lawyer.

For representation on estate and trust planning, special needs and elder care, call … 732-382-6070