This week our guest blogger is Ryan Spencer, an attorney at Marcari, Russotto, Spencer & Balaban.
Ryan Spencer is admitted to practice law in North Carolina. He graduated from Elon University School of Law and cum laude from North Carolina State University with a Bachelor of Arts in political science: law and theory.
At Elon University, he was a member of the Phi Alpha Delta Law fraternity, student advocacy board and mock trial competition team.
Prior to accepting his full time position with Marcari, Russotto, Spencer & Balaban, Ryan worked part time as a law clerk during academic breaks from Elon University.
VA Plans to Develop New Diagnostic Code
The interim final rule will likely not be published before June 2021, but a USB policy letter will be forthcoming instructing field raters to rate COVID-19 issues as analogous to West Nile Virus for the active disease and any residuals with the appropriate body system.
The policy letter is expected maybe as soon as the end of the month, and we will provide updates as available. They also mentioned a 14-day presumptive period for those exiting the military during this time.
What Implications Does this Announcement Have?
First, it is clear that anyone that is currently active duty and contracts COVID-19 can be compensated.
The only requirement it would seem is that they would need a verified diagnosis within 14 days of discharge.
Second, Veterans that are working or living in a VA owned hospital, outpatient clinic or nursing home could apply for benefits.
Under 38 U.S.C.S. §1151, if the Veteran contracts a disease or disability while in the care of a VA facility and the issue was caused by that facility, compensation may be in order.
An 1151 claim refers to a means of receiving VA disability compensation as outlined in 38 U.S.C.S. §1151. The statute allows for veterans to receive compensation for a qualifying additional condition as if it were service-connected in two circumstances.
The first is if the additional condition “was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by” VA. In this case, the additional condition must have resulted from the “carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of the [VA] in furnishing the hospital care, medical or surgical treatment, or examination,” or from “an event not reasonably foreseeable.”
The second circumstance is if the qualifying additional condition “was proximately caused by” the veteran’s participation in a Chapter 31 rehabilitation program or in a Section 1718 – “compensated work therapy program” (CTW). Claims based on Voc., Rehab or CTW don’t require evidence of negligence or fault on the part of VA.
The implications of this proposed interim rule are massive in scope considering the voluminous VA treatment and nursing facilities across the country.
Given the en masse exposures to COVID-19 at most nursing home facilities, many Veterans currently could be eligible for benefits.
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