Author: M-VETS

Written By Spring 2024 M-VETS Student Advisor Jacob Frankson.

The benefits given to servicemembers and veterans extends beyond just them and to their families as well. This includes even after they have passed away. But to the widow or the child of a veteran who has passed away, what benefits are they entitled to, and how do they go about attaining them? Below are some of the more common benefits that are sought.

• Dependency and Indemnity Compensation (“DIC”)

What is it? DIC is a tax-free monthly monetary payment to the surviving spouse, child, or parent of a servicemember who died in the line of duty or a veteran who died from a service-related injury.[1] The payment amount is calculated based on the base rate payment and may be increased based on the factual circumstances.[2]

Am I eligible? A surviving spouse, child, or parent of a servicemember or veteran may be eligible.

• Surviving spouse: must be married to the veteran or servicemember for at least one year or have a child with them.[3] However, separation may count if it is not the fault of the spouse.[4]
• Child: must not be married, under age 18 or 23 if in college, and are not included in the surviving spouse compensation (no double dipping).[5] Stepchildren and adoptive children are included.[6]
• Parent: must be the biological, adoptive, or foster parent of the veteran or servicemember, and must meet the income qualifications.[7]
• Applicable for all: the cause of death must be due to active duty service, service-connected illness or injury, or eligible to receive VA compensation for a service-connected disability rated as totally disabling for a certain period of time.[8]

What next? File an application with the VA using the respective form. The type of form depends on the factual circumstances.

• Surviving Spouse or Child of Active Duty: VA Form 21P-534a
• Surviving Spouse or Child of Veteran: VA Form 21P-534EZ
• Surviving Parent: VA Form 21P-535

What to look out for? Gather documents such as the death certificate, potentially an autopsy if needed, VA decisions showing service connection, and service treatment records. Also, look into if you qualify for any of the added amounts, such as having children under 18.

• Burial Benefits

What is it? A monetary award toward burial expenses for the death of a veteran.[9] It is a reimbursement not a payment. Applicable to both service-related and non-service-related deaths.

Am I eligible? If the death is service-related, it must show the death of the veteran is related to a service-connected disability or that the veteran was totally disabled for a service-connected disability.[10] If the death is not service-related, then the veteran must have died while hospitalized by VA, while properly admitted to a VA facility; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care.[11]

What next? Apply to the VA with VA Form 21P-530.

What to look out for? Remember to keep receipts of all expenses you will need for reimbursement, including transportation costs.

• Survivors’ and Dependents’ Educational Assistance (DEA)

What is it? Also known as Chapter 35 benefits, DEA provides assistance with paying for school or job training to the children and spouses of deceased or disabled veterans.[12] If granted, the VA will then provide a monthly check for each month the eligible person is in school for a set number of years (if after August 1, 2018, then 36 months).[13]

Am I eligible? To be eligible, you must be either the child or spouse of a veteran who is permanently and totally disabled due to a service-connected disability, died in the line of duty or from a service-connected disability, was a POW for more than 90 days, and the child or spouse must meet the timing and age requirements.[14]

There is no time limit if the event that qualified you, the child turned 18, or the child completed high school after August 1, 2023.[15] If before this date, a child has 8 years to use them when turning 18.[16] A spouse has 10 years from the eligibility date or death of the veteran unless the servicemember dies while on active duty or the veteran was rated permanently and totally disabled within three years of discharge.[17]

What next? Apply to the VA with VA Form 22-5490.

What to look out for? If you are a child and receiving DIC, you cannot also get DEA benefits. Most colleges ask you to fill out an internal form to attain your benefits every semester you want the DEA benefits. Also, be on the lookout in case you apply to any other education programs, such as the Fry Scholarship.

• Accrued Benefits

What is it? Accrued benefits are benefits that are due but have not been paid before the death of the veteran.[18] Similarly, substitution allows a surviving spouse, child, or parent to substitute themselves in place of the veteran during a pending claim or appeal for potential benefits.[19]

Am I eligible? You are eligible if you are the surviving spouse, child, or dependent parents of the deceased veteran and you have filed within one year of the death of the veteran.[20]

What next? Apply to the VA:

Accrued benefits: VA Form 21P-601

DIC and Accrued: VA Form 21P-534EZ

Substitution: VA Form 21P-0847

What to look out for? These benefits are already due or pending, not new appeals or claims for benefits. Remember to file timely.

• CHAMPVA

What is it? First, there is TRICARE, which is a comprehensive healthcare coverage program. If you do not qualify for this program, you may be eligible for CHAMPVA, a cost-sharing program where the VA covers the cost of some healthcare services.[21]

Am I eligible? You must be the spouse or child of a veteran who has been rated permanently and totally disabled for a service-connected disability, died from a VA-rated service-connected disability, or was at the time of death rated permanently and totally disabled from a service-connected disability.[22]

Additionally, if you are a spouse, you must not remarry before the age of 55; however, if the marriage ends, you may qualify again.[23] If you are a child, you are covered until 18 or 23 if you are still in college.[24]

What next? Fill out VA Form 10-10d, VA Form 10-7959c, and your Medicare status.

What to look out for? Remember that CHAMPVA is a secondary option to TRICARE, so see if you are eligible for TRICARE first. Also, be on the lookout for the age or marriage requirements. Finally, provide any documentation related to your eligibility when applying, such as any relevant rating decisions or marriage documents.

• VA Home Loan

What is it? A VA-backed home loan may offer better terms than a traditional loan from a private bank.[25]

Am I eligible? A surviving spouse may be eligible if the veteran is missing in action, the veteran is a prisoner of war, the veteran died while in service or from a service-connected disability, and you didn’t remarry, the veteran died while in service or from a service-connected disability, and you didn’t remarry before you were 57 years old, or the veteran had been totally disabled and then died, but their disability may not have been the cause of death.[26] Children of a veterans who died are not eligible for the VA home loan benefit.[27]

What is next? (1) VA Form 26-1817 if you already have DIC; if not, you need to apply for DIC first; (2) Certificate of Eligibility (COE); (3) next steps depend on the private bank that’s serving as your lender.

This post is not an exhaustive list, and there are other benefits that may apply to your case. Furthermore, this post is more of a brief overview to see if any benefits may apply to you. I encourage you to look further into them or seek help from a veteran service officer if you think you may be eligible before applying.

[1] 38 C.F.R. § 3.5(a)(1)

[2] 38 C.F.R. § 3.10(e); see Current DIC rates for spouses and dependents, U.S. Department of Veterans Affairs, https://www.va.gov/disability/survivor-dic-rates/.

[3] About VA DIC for spouses, dependents, and parents, U.S. Department of Veterans Affairs, https://www.va.gov/disability/dependency-indemnity-compensation/#:~:text=If%20you’re%20the%20surviving,Indemnity%20Compensation%20(VA%20DIC).

[4] 38 C.F.R. § 3.50(b).

[5] 38 C.F.R. § 3.57(a); see About VA DIC for spouses, dependents, and parents, U.S. Department of Veterans Affairs, https://www.va.gov/disability/dependency-indemnity-compensation/#:~:text=If%20you’re%20the%20surviving,Indemnity%20Compensation%20(VA%20DIC).

[6] 38 C.F.R. § 3.57(a).

[7] 38 C.F.R. § 3.59 (a); 38 C.F.R. § 3.250(a).

[8] 38 C.F.R. § 3.22(a); see About VA DIC for spouses, dependents, and parents, U.S. Department of Veterans Affairs, https://www.va.gov/disability/dependency-indemnity-compensation/#:~:text=If%20you’re%20the%20surviving,Indemnity%20Compensation%20(VA%20DIC).

[9] 38 C.F.R. § 3.1700; see Compenstion, U.S. Department of Veterans Affairs,  https://www.benefits.va.gov/compensation/claims-special-burial.asp.

[10] 38 C.F.R. § 3.1704.

[11] 38 C.F.R. § 3.1706.

[12] 38 U.S. Code § 3531(a).

[13] Survivors’ and Dependents’ Educational Assistance, U.S. Department of Veterans Affairs, https://www.va.gov/education/survivor-dependent-benefits/dependents-education-assistance/.

[14] 38 U.S. Code § 3501(a)(1).

[15] Survivors’ and Dependents’ Educational Assistance, U.S. Department of Veterans Affairs, https://www.va.gov/education/survivor-dependent-benefits/dependents-education-assistance/.

[16] Id.

[17] Id.

[18] VA Accrued Benefits and Substitution, U.S. Department of Veterans Affairs, https://benefits.va.gov/BENEFITS/factsheets/general/accrued.pdf.

[19] Id.

[20] 38 C.F.R. § 3.1000.

[21] 38 C.F.R. § 17.270(a).

[22] 38 C.F.R. § 17.271(a).

[23] CHAMPVA benefits, U.S. Department of Veterans Affairs, https://www.va.gov/health-care/family-caregiver-benefits/champva/.

[24] Id.

[25] VA home loan programs for surviving spouses, U.S. Department of Veterans Affairs, https://www.va.gov/housing-assistance/home-loans/surviving-spouse/.

[26] Id.

[27] Id.

Written By Spring 2024 M-VETS Student Advisor Sarah Barker.

On Monday, April 29, the Supreme Court of the United States agreed to hear a case this fall with the potential to significantly broaden U.S. veterans’ opportunities to receive VA benefits.[1]

The case, Bufkin v. McDonough, centers on two veterans—Joshua Bufkin and Norman Thornton—who were denied medical benefits by the Department of Veterans Affairs and Board of Veterans Appeals (“BVA”).[2] Bufkin and Thornton each sought VA benefits for PTSD in connection with their military service, but were denied after the VA decided that examinations by VA psychologists outweighed the veterans’ prior examinations and diagnoses.[3] These rulings were reviewed and affirmed by the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”), which found merely that the BVA didn’t make any clear mistakes about the facts of the petitioners’ cases.[4]

Bufkin and Thornton appealed the Veterans Court decisions, arguing that these denials violated a principle called the “benefit-of-the-doubt” rule.[5] They lost their cases at the Federal Circuit Court of Appeals, but now that the Supreme Court has accepted their petition for review, they have a new shot at changing the way that the VA thinks about veterans’ benefits.[6]

The Benefit-of-the-Doubt Rule

Boiled down to basics, Bufkin v. McDonough is about the application of the benefit-of-the-doubt rule to appeals of BVA decisions. The benefit-of-the-doubt rule is a well-established policy in veterans’ law: when the evidence in favor of and against a veteran’s benefits claim is approximately balanced, the VA department should rule in favor of the veteran’s claim.[7]  In 1988, Congress codified the benefit-of-the-doubt rule into law as 38 U.S.C. § 5107(b):

(b) Benefit of the doubt. The Secretary [of Veteran’s Affairs] shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the secretary shall give the benefit of the doubt to the claimant.[8]

This mandate applies to disability and benefits determinations by the VA office and BVA, and is further established within the Department of Veterans Affairs’ own regulations—when there is a reasonable doubt about some aspect of a VA disability claim, and the evidence is about the same weight on either side, that doubt should be resolved in favor of the claimant.[9]

In 2002, Congress passed the Veterans’ Benefits Act (“VBA”), modifying the Veterans Court’s power to review BVA decisions.[10] The language in one part of the VBA, 38 U.S.C. § 7261, forms the basis of Bufkin’s issue in controversy.[11]

Section 7261(a) requires the Veterans Court (when reviewing BVA decisions) to decide legal questions; compel unlawfully-withheld action by the Secretary of Veterans’ Affairs; set aside BVA decisions that are arbitrary, capricious, unconstitutional, unlawful, or lacking in due procedure; and reverse findings of fact that are “clearly erroneous.”[12]

Section 7261(b) states that when the Veterans Court makes a determination on an appeal from the BVA, “the Court shall review the record of proceedings before the Secretary and the Board of Veterans’ Appeals . . . and shall take due account of the Secretary’s application of [the benefit-of-the-doubt rule].”[13]

Bufkin and Thornton argued that under the VBA’s Section 7261(b), the Veterans Court must conduct a much more generous review of closely-balanced issues than it did before.[14] If Congress’s passage of the VBA is to mean anything at all, they claim, then it must require deeper attention to benefit-of-the-doubt on appeal.[15]

Bufkin’s Federal Circuit holding and arguments before the Supreme Court

In August 2023, the Federal Circuit Court of Appeals ruled on Bufkin and Thornton’s cases and rejected their more generous interpretation of Section 7261.[16] The Federal Circuit held that under Section 7261(b), the Veterans Court is only required to examine BVA findings and applications of the benefit-of-the-doubt rule for clear error—the same scope and standard of review permitted by Section 7261(a).[17] Clear error is a difficult standard to meet in a lawsuit. Under this ruling, the Veterans Court has no obligation to separately review whether or not a veteran actually received the benefit of the doubt on close material issues of a case; only whether or not the BVA made an obvious factual mistake when applying it.[18]

Bufkin and Thornton’s petition to the Supreme Court argues that Section 7261(b) requires the Veterans Court to conduct a separate analysis of whether or not a veteran received the benefit of the doubt on close disputed issues before the VA Department and BVA—regardless of whether the BVA made “clearly erroneous” factual findings under 7261(a), and regardless of whether or not a veteran claimant accused the BVA of factual error or inappropriate application of the benefit-of-the-doubt rule on appeal.[19]

The reading of Section 7261 proposed by Bufkin and Thornton is much broader than the Federal Circuit’s rule. If the Supreme Court affirms the Federal Circuit, the old rule will remain in place—but if the Supreme Court chooses to agree with the petitioners, it could open up a whole new world for veterans across the country to challenge past disability determinations where the VA failed to give enough deference to their needs. Permitting broader review by courts appealing VA decisions may allow veterans with close cases to successfully receive needed benefits, where previously the Veterans Court might not have given their cases a deeper look. The current Supreme Court justices have proven themselves sympathetic to veterans’ needs in another recent decision, Rudisill v. McDonough, where a 7-2 majority voted to broaden access to overlapping GI Bill benefits[20]—so keep an eye on Bufkin during the 2024-25 term.

[1] Leo Shane III, Supreme Court to hear another major veterans benefits case this fall, MilitaryTimes (April 30, 2024), https://www.militarytimes.com/veterans/2024/04/30/supreme-court-to-hear-another-major-veterans-benefits-case-this-fall/

[2] Petition for Writ of Certiorari at 9-14, Bufkin v. McDonough, No. 23-713, 2024 U.S. LEXIS 1957 (2024).

[3] Id.

[4] Id.

[5] See Bufkin v. McDonough, 75 F.4th 1368, 1370 (Fed. Cir. 2023); Thornton v. McDonough, 2023 U.S. App. LEXIS 20657 (Fed. Cir. 2023).

[6] Bufkin, 75 F.4th at 1373; Petition for Writ of Certiorari at 9-14, Bufkin (No. 23-713).

[7] 38 U.S.C. § 5107(b); see Petition for Writ of Certiorari at 6, Bufkin v. McDonough, No. 23-713, 2024 U.S. LEXIS 1957 (2024).

[8] 38 U.S.C. § 5107(b).

[9] 38 C.F.R. § 3.102.

[10] See 38 U.S.C. § 7261.

[11] Id.; Petition for Writ of Certiorari at 1-3, Bufkin (No. 23-713).

[12] 38 U.S.C. § 7261(a).

[13] 38 U.S.C. § 7261(b).

[14] Petition for Writ of Certiorari at 18-29, Bufkin (No. 23-713).

[15] Id.

[16] Bufkin, 75 F.4th at 1373.

[17] Id. at 1372-73.

[18] Id.

[19] Petition for Writ of Certiorari at 18-29, Bufkin (No. 23-713).

[20] See Rudisill v. McDonough, 144 S. Ct. 945 (2024).

Written By Spring 2024 M-VETS Student Advisor Lucas Zelasko.

On March 28, 2024, the Army Secretary of the Army Chistine Wormuth announced the establishment of a central office for the Army Exceptional Family Members Program, in an attempt to improve the stationing process for families who have members with special medical or educational needs.[1] Soldiers on active duty enroll in the program when they have a family member with a physical, emotional, developmental or intellectual disorder requiring specialized services so their needs can be considered in the military personnel assignment process.[2] The overall goal of EFMP is to keep families together by allowing them to accompany their service member to their duty locations.[3] Previously, the station assignment for these soldiers occurred within the human resources branch of their occupational specialty.[4] For years, military families with special needs have detailed their problems with the availability and quality of medical care and special education.[5] Following a 2020 congressional hearing, lawmakers mandated EFMP standardization and improvements in the 2021 National Defense Authorization Act.

EFMP Objectives

• To consider the medical needs of the family member during the continental U.S. (CONUS) and outside the continental U.S. (OCONOUS) assignment process.[6]
• To consider the special education needs of the family member during the OCONUS assignment process.[7]
• To assign soldiers to an area where the family member’s medical and special education needs can be accommodated, provided there is a valid personnel requirement for the soldier’s grade and specialty.[8]
• To ensure that all eligible family members receive information and assistance needed to involve them with community support service to meet their needs.[9]

Eligibility & Enrollment

The special needs of the family member are documented utilizing the DD Form 2792 (Family Member Medical Summary).[10] An exceptional family member is a family member with any physical, emotional, developmental, or intellectual disorder that requires special treatment, therapy, education, training, or counseling.[11] Active Army soldiers with exceptional family members (children and adults) are required to enroll in EFMP.[12] Family members must be screened and enrolled when they accompany soldiers on OCONUS assignments.[13] These screenings include a medical records review for all family members and developmental screening for all children 72 months and younger.[14] Soldiers may initiate enrollment in EMFP by contacting their nearest Army Medical Treatment Facility EFMP case coordinator.[15] Additionally, soldiers are responsible for keeping the medical and/or special education needs documentation current as EFMP condition changes or at least every three years, whichever comes first.[16]

What does the soldier do if they have an EFMP dependent and they get reassigned?

If a service member has a dependent enrolled in EFMP, they will need to complete a DA Form 5888 (Family Member Deployment Screening Sheet) upon notification of any reassignment in which family accompaniment is authorized.[17] This screening will assist in identifying treatment facilities at the service member’s new duty station and ensure proper access and continuum of care for the exceptional family member.[18]

How does a soldier disenroll from EFMP?

Once a family member is enrolled in the EFMP, they remain in the program until: 1) the condition that warranted enrollment has been resolved; 2) when the soldier leaves the army; or 3) when the family member is no longer enrolled in DEERS.[19] Documentation is required to disenroll from the EFMP regardless of the circumstances and this documentation must be requested through either the medical provider for a medical enrollment or the school/early intervention provider for an educational enrollment.[20]

Does Enrollment have any impact on the Soldier’s career?

Enrollment in EFMP does not adversely affect selection for promotion, schools, or assignment, and information concerning enrollment in EFMP or any of the data used in the program is not made available to selection boards.[21]

Military families should first approach their Army Community Service or military treatment facility professionals if they need help or encounter barriers to education or healthcare needs for their family.[22] The Exceptional Family Members Program Office is available for additional support.[23]

[1] U.S. Army Public Affairs, Army Exceptional Family Member Program Central Office will better support Soldiers and Families (March 28, 2024). https://www.army.mil/article/274845/army_exceptional_family_member_program_central_office_will_better_support_soldiers_and_families

[2] Id.

[3] Id.

[4] Rose L. Thayer, Army creates central office to manage moves of service families with special needs (March 28, 2024).  https://www.stripes.com/branches/army/2024-03-28/army-special-needs-military-moves-13447470.html

[5] Zamone Perez & Karen Jowers, Army creates office to better support families with special needs (March 29, 2024). https://www.militarytimes.com/news/your-military/2024/03/29/army-creates-office-to-better-support-families-with-special-needs/

[6] MyArmyBenefits.us.army.mil, EFMP Benefits Fact Sheet https://myarmybenefits.us.army.mil/Benefit-Library/Federal-Benefits/Exceptional-Family-Member-Program-(EFMP)-?serv=122

[7] Id.

[8] Id.

[9] Id.

[10] Army Enterprise Exceptional Family Member Program, New to EFMP? (September 22, 2023). https://efmp.army.mil/EnterpriseEfmp/Content?NodeId=23

[11] Id.

[12] Army WMR, Exceptional Family Member Program, https://www.armymwr.com/programs-and-services/personal-assistance/exceptional-family-member-program

[13] Id.

[14] Id.

[15] Army – MyArmyBenefits, EFMP Benefit Fact Sheet.

[16] Id.

[17] Id.

[18] Id.

[19] Army Enterprise Exceptional Family Member Program, New to EFMP?

[20] Id.

[21] Id.

[22] Perez & Jowers.

[23] Id.

Written By Spring 2024 M-VETS Student Advisor Andrew Yildizlar.

The Opioid Epidemic

The opioid epidemic has harmed the lives of far too many servicemembers, veterans, and their family members. Opioid synthetic drugs are pain relievers which, if used incorrectly at high doses, can slow breathing to the point of death.[1] Opioid Use Disorder (OUD) is a chronic disorder that involves the problematic overuse or otherwise misuse of opioids.[2] The VA’s diagnoses of veterans with OUD have risen from 25,031 in 2003 to 69,142 in 2017.[3] On October 26, 2017, the Acting Secretary of the Department of Health and Human Services declared the opioid crisis a public health emergency.[4] In 2020, opioids caused nearly seventy-five percent of all drug overdoses in the U.S.[5] Veterans have and continue to suffer from the opioid crisis, with over a fifty percent increase in overdose mortality rates between 2010 and 2019.[6] In fact, veteran patients of the U.S. Department of Veterans Affairs (VA) have a higher risk of overdose and death compared to the general population.[7] The opioid crisis is therefore a real and pervasive issue that demands a resolution, particularly for vulnerable veterans injured in service.

The U.S. Department of Veterans Affairs’s Response

In response to the opioid epidemic, the VA has initiated non-opioid treatment options and a plan to reduce opioid prescriptions.[8] In 2013, the VA developed the Opioid Safety Initiative (OSI) to minimize harm to VA patients. The OSI consists of guidelines for Department of Defense and VA Health Care practitioners that specify when the use of opioids is recommended for patients based on current information and practices.[9] Through the OSI, the VA has worked to lower the likelihood that a veteran develops OUD by restricting practitioners’ opioid prescriptions to only those severe cases.[10] The OSI has gradually reduced opioid prescriptions each year. In 2023, the VA announced that it reduced opioid prescriptions for veterans by sixty-seven percent, from 874,897 prescriptions in 2012 to 288,820 in 2023.[11] Since 2020, the VA has reduced opioid prescriptions by sixteen percent, from 345,910 prescriptions to 288,820.[12]

In part, the VA has accomplished a reduction in prescriptions by increasing access to tested therapies and other treatments in lieu of opioids.[13] For example, the VA instituted a multifaceted treatment plan under the “Whole Health” approach.[14] Under this model, the VA Medical Centers offer both “conventional clinical care (such as medicines or counseling) and complementary and integrative care (such as acupuncture or yoga).”[15] If a veteran is interested in learning about starting a personalized health plan under the Whole Health service, more information can be found at https://www.va.gov/WHOLEHEALTH/.

Furthermore, the VA has found that non-drug therapies can “reduce the risk of adverse outcomes like substance use disorders and suicide attempts later in life.”[16] In one study conducted in 2020 at the VA Palo Alto Health Care System, “veterans who received non-drug therapies like acupuncture, biofeedback, or chiropractic care during their service had a significantly lower risk of new-onset alcohol or drug use disorders; poisoning with opioids, barbiturates, or sedatives; and suicidal thoughts and attempts while under VA care.”[17] Thus, the VA has recognized the need to move away from opioid use when other pain management treatments are viable.

The Senators’ Letter to the VA

On April 16, 2024, U.S. Senators, including Kevin Cramer (R-ND), Jeanne Shaheen (D-NH), Shelley Moore Capito (R-WV), Tammy Baldwin (D-WI), and Mike Braun (R-IN), wrote a letter to VA Secretary Denis McDonough asking the VA to “share the progress it has made in incentivizing the use of non-opioid pain management options to prevent addiction within the veteran community.”[18]

In the letter, the Senators explained that “active-duty service members, veterans, retirees and their families are not immune to the opioid addiction crisis. Nearly half of combat wounded veterans report misuse of prescription opioids. Drug overdose mortality rates among veterans also increased by 53% from 2010–2019. Therefore, it is even more important to protect veterans from unnecessary exposure to prescription opioids.”[19] The Senators further pointed out that “[o]ne critical tool to prevent opioid addiction before it starts is to incentivize the use of VA approved non-opioid pain management options, including drugs and devices. In recent years, Congress has prioritized efforts to increase access to these treatments, most recently in Medicare.”[20]

Lastly, to better understand how Congress may improve the VA’s efforts, the Senators asked the following four questions:

1. “How many non-opioid pain alternatives are currently included in the VA National Formulary (VANF)?

2. How frequently are non-opioid alternatives utilized in the VA system compared to opioid treatments for acute pain? Please provide any national-level data available on dispensing and usage of non-opioid pain alternatives to treat acute pain in the VA facilities and community care sites.

3. What steps has the VA already taken to transition from opioid analgesics to non-opioid pain alternatives to treat acute pain? Please also provide a summary of your ability to consider immediate action to add safe, effective non-opioid drugs to the VANF.

4. What steps can Congress take to facilitate these efforts?”[21]

Conclusion

Unfortunately, the opioid epidemic continues to affect servicemembers, veterans, and their family members. The VA has responded by implementing safer practices and treatments which have reduced opioid prescriptions for veterans under VA care. However, as Congress recognizes, there is still more to be done in the fight against OUD and misuse of opioids. Servicemembers and veterans deserve treatment of their injuries sustained while serving their country, not a temporary pain reliever that may cause unwarranted consequences as severe as death.

[1] Donald Egan, M.D., et al., Opioid Use Disorder, American Psychiatric Association (December 2022), https://www.psychiatry.org/patients-families/opioid-use-disorder.

[2] Id.

[3] Gordon AJ, Trafton JA, Saxon AJ, et al. and Buprenorphine Work Group of the Substance Use Disorders Quality Enhancement Research Initiative. Implementation of buprenorphine in the Veterans Health Administration: Results of the first 3 years. Drug Alcohol Depend. 2007;90(2):292–296. doi: 10.1016/j.drugalcdep.2007.03.010.

[4] Opioid Crisis: Status of Public Health Emergency Authorities, GAO U.S. Government Accountability Office (Sept. 26, 2018), https://www.gao.gov/products/gao-18-685r#:~:text=On%20October%2026%2C%202017%2C%20the,has%20been%20made%20for%20opioids.

[5] Drug Overdose Deaths, Centers for Disease Control and Prevention (Aug. 22, 2023), https://www.cdc.gov/drugoverdose/deaths/index.html.

[6] Begley MR, Ravindran C, Peltzman T, et al., Veteran drug overdose mortality, 2010–2019. Drug Alcohol Depend. 2022;233:109296.

[7] Bohnert AS, Valenstein M, Bair MJ, et al., Association between opioid prescribing patterns and opioid overdose-related deaths. Jama. 2011;305(13):1315–1321. doi: 10.1001/jama.2011.370.

[8] Kevin Cramer, U.S. Senator for North Dakota, Letter to VA Secretary Requests Update on Non-Opioid Pain Management Options for Veterans (Apr. 18, 2024), https://www.cramer.senate.gov/news/press-releases/letter-to-va-secretary-requests-update-on-non-opioid-pain-management-options-for-veterans#:~:text=WASHINGTON%20%E2%80%93%20In%20the%20midst%20of,prescriptions%20by%2067%25%20since%202012.

[9] VA reduces number of Veterans prescribed opioids by 67% since 2012, VA News (Sept. 21, 2023), https://news.va.gov/press-room/va-reduces-opioids-by-67-since-2012/#:~:text=WASHINGTON%20%E2%80%94%20Today%2C%20the%20Department%20of,class%20pain%20management%20to%20Veterans.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Veterans with chronic pain are replacing opioid pain medications, VA News (Apr. 15, 2021), https://news.va.gov/87384/veterans-chronic-pain-replacing-opioid-pain-medications/.

[15] Id.

[16] VA Research on Pain Management, VA Office of Research & Development, https://www.research.va.gov/topics/pain.cfm#:~:text=Veterans%20who%20received%20non%2Ddrug,attempts%20while%20under%20VA%20care.

[17] Id.

[18] Kevin Cramer, U.S. Senator for North Dakota, Letter to VA Secretary Requests Update on Non-Opioid Pain Management Options for Veterans (Apr. 18, 2024), https://www.cramer.senate.gov/news/press-releases/letter-to-va-secretary-requests-update-on-non-opioid-pain-management-options-for-veterans#:~:text=WASHINGTON%20%E2%80%93%20In%20the%20midst%20of,prescriptions%20by%2067%25%20since%202012.

[19] Jeanne Shaheen, United States Senator, et al., VA Non-Opioid Pain Management Letter (Apr. 16, 2024), https://senatorkevincramer.app.box.com/s/mjxnw42w6907zk1bhnvm6jbuu5shdml6.

[20] Id.

[21] Id.

Written By Spring 2024 M-VETS Student Advisor Dan Perszyk.

Moving is often a part of life for service members. In fact, due to deployment or a Permanent Change of Station (PCS), many active service members need to find new housing every few years.[1] Annually, around 400,000 service members undertake a PCS for their next two (to four) year term.[2]

In addition to a new job, new commute, and new surroundings, service members new to an area must locate acceptable housing for the next few years. And then, if the timeline for their next PCS or deployment doesn’t align with their lease term, the service member will need to update their landlord regarding their early lease termination.

In a perfect scenario, the service member provides an update to their landlord who then confirms the new lease end date. The landlord conducts the move-out inspection, notifies the tenant of any issues with the property that warrant a deduction from the security deposit, and then returns the remainder of (or the entire) security deposit.[3]

Unfortunately, this “perfect scenario” doesn’t always come to fruition. From the landlord’s perspective, an early termination moves their timeline up; requires an early inspection, tenant interviews, and property showings; and may require additional property listing costs. Whether unintentionally or otherwise, the landlord may retain more of the security deposit than the terms of the lease agreement would appear to permit.[4]

Under these circumstances, the tenant has options (discussed in more detail below). They can:

• communicate with the landlord and request their security deposit be returned,
• work with an attorney to draft a demand letter,
• file a complaint for a return of their security deposit, or
• decide to do nothing.

Option One has the benefit of being relatively low-cost, financially (and, potentially, emotionally). The tenant may be able to convince the landlord that returning the security deposit (or an agreed-upon portion) is the right, fair, and legal thing to do. This may also allow the landlord to explain the reasoning behind retaining the security deposit so that both parties leave with a better understanding of the property’s condition at move-out. This scenario may be ineffective, however, if the tenant’s frustrations or communication skills are not sufficient to appeal to the landlord’s reasonability. It may also be that the landlord is simply not willing to return the security deposit on any terms. Finally, this interchange may inflame both party’s frustrations, and result in the landlord invoicing (or even filing a complaint against) the tenant for claimed damage done beyond what the security deposit would cover.

Option Two may be useful to show that the tenant feels they have a valid claim, and that they feel the situation is serious. This may recommend to the landlord that they should likewise consider whether they made a fair decision in withholding the security deposit. However, attorney’s services are generally not free, a demand letter is not service of a complaint,[5] and a landlord may treat that demand letter as nothing more than an empty pressure tactic. Finally, the landlord may be even less likely to engage with an attorney than they would with the tenant directly (see Option One).

Option Three has the benefit of using the legal system to resolve the party’s disagreement. Because the amount at issue relates to security deposits (which are limited to two month’s periodic rent by Virginia statute),[6] landlord tenant disputes are generally heard by a general district court judge (in Virginia, at least),[7] who will take evidence from both sides and make a ruling based on their findings.[8] This scenario has the benefit of vindicating one of the parties and gives the result an air of authority and finality that a simple handshake or email agreement might not.

Option Three also brings challenges. The legal process takes time, and the service member may have moved far enough away that they would have to buy a plane ticket and rent a hotel room just to defend their claim in the local court (such costs cannot be passed off to a landlord, even were the landlord found to be liable for the complete return of the security deposit).[9] Once in court, the tenant may find that they do not have all the evidence necessary to prove their claim – even if that evidence did, at one time, exist.[10] In these situations, a judge may not have enough evidence to find for the tenant; they may then simply split the difference of the disputed amount between the two parties (if they award the tenant anything at all). Finally, landlord tenant disputes of this nature involve deposit money to which both parties may feel they have a legitimate claim. As a result, tensions and frustrations can run high, and a tenant under these circumstances may not appear as sympathetic a party as they actually are. This provides an additional challenge for a factfinder, who may be looking at a sympathetic, calm landlord compared to a frustrated, tense, or nervous tenant unfamiliar with legal proceedings and uncertain how much help they are likely to receive in court.

In Option Four, the tenant can choose to do nothing. The benefits of this approach are that there is no investment in litigation – no gathering of evidence, no documenting communication, no reaching out to attorneys or legal aid funds. There is also less chance that the landlord will respond with a legal complaint of their own. The downside of this approach is that it will result in the loss of a deposit (or portion thereof), and there is no guarantee that the landlord will not still file a complaint for additional damages to the property.

So, what is a service member—or, really, any tenant—to do?

While no approach is perfect, there are a few guidelines that service members can follow to ensure as smooth a tenancy transition as possible – no matter which option they pursue:

• Read the lease agreement. Inclusion of a service member transition section is a plus (while Virginia has its own statute to protect service members who terminate early due to PCS,[11] inclusion of such a section in the agreement at least provides that the landlord has considered this possibility). Make sure that the tenant’s—and landlord’s—duties are clearly described and seem fair.
• Communicate with the landlord. If the service member knows before signing the lease that a PCS is possible, inform the landlord and assess whether they seem amenable to this. Discuss the terms of the lease, and make sure all parties agree on the difference between negligent damage to property and normal wear and tear. Where possible, document these communications. After a verbal conversation, follow up with an email that summarizes the main points, and ask for confirmation of receipt and agreement.
• Keep documentation. Make sure all documents related to the lease—lease agreement, addendums, renewals, communications about repairs or other matters, invoices, etc—are kept in clear, legible formats. If a landlord provides only partial documentation, request fully-executed, complete versions of the documents.
• Read reviews. See what other tenants have said about the landlord or rental property management. While older reviews may be outdated (particularly for locations with a front office that experiences some amount of staff turnover), reviews can provide information on how responsive the landlord is, how fair they seem, and how communicative they can be when dealing with tenants. Be sure to read critically – a five-star review may greatly overstate the landlord’s positives, and a one-star review might just as easily have come from a disgruntled tenant who requested return of the full security deposit after demolishing their apartment far in excess of the security deposit.
• Be an excellent tenant. Follow the terms of the lease. Communicate issues with the landlord. Be upfront. Check in with the landlord before making changes, even small ones. Again: follow the terms of the lease!
• Be respectful. Landlords are people too. They will have a much easier time returning a security deposit if they had a good relationship with a pleasant tenant who did what they said they would do and took good care of the property. There is no guarantee, of course, but being respectful goes a long way.
• Follow the early termination agreement in the contract; if the contract does not have such agreement, follow Va. Code § 55.1-1235: Early termination of rental agreement by military personnel. When ending a rental lease early, be ready to provide written notice of intent to end the lease along with a copy of the relevant military orders. To be eligible under Virginia law for a non-penalized early termination, the relocation must be more than 35 miles from the rental property, the service member must be released from active duty, or the service member must be ordered to report to government-supplied quarters.[12] The service member must provide their military orders to the landlord at least 30 days before early lease termination, but there is no harm in providing this documentation as soon as possible.[13] Confirm with the landlord that they have received the documentation.
• Attend the walkthrough. The walkthrough is the landlord’s review of the property after the tenant’s lease ends. They will check to make sure that the property is in order, note any issues, and itemize those issues accordingly.[14] Under Virginia law, there is no requirement that the tenant be present for the walkthrough,[15] but this is something that the tenant can contract into the lease agreement and, barring a written agreement, make this request to the landlord prior to move-out.
• Be prepared for the possibility that the security deposit may not be returned. It may be hard to admit, but there are times where, either because of valid property damage or because the landlord never intended to return the security deposit, the deposit will simply not be returned. It’s never happy news when this is the case but becomes much more difficult to handle when unexpected. It is always better to prepare for the worst and be happily surprised by a different outcome than it is to expect that everything will work out perfectly and find that that is not the case.

In all, even the perfect tenant may find themselves in a difficult situation after transferring before the original lease ends. Landlord tenant disputes may not always allow for perfect solutions, but there is a lot a service member tenant can do to increase their chances of a fair outcome after an early lease termination.

[1] Supporting your service member before a military move, Military One Source, https://www.militaryonesource.mil/moving-pcs/plan-to-move/military-pcs-move-support-for-service-members/ (March 14, 2024).

[2] PCS: The Basics About Permanent Change of Station, Military One Source, https://www.militaryonesource.mil/moving-pcs/plan-to-move/pcs-the-basics-about-permanent-change-of-station/ (April 18, 2023).

[3] Va. Code § 55.1-1226.

[4] See, e.g., Genesis Props. V. Wright, 59 Va. Cir. 256, 3 (Cir. Ct. City of Richmond, July 12, 2002)(landlord withheld security deposit after tenants terminated lease with sufficient notice; landlord was required to pay back security deposit less property damage).

[5] Va. Code § 8.01-296 (service of a complaint is the process of legally notifying someone that they are a party in a legal dispute).

[6] Va. Code § 55.1-1226(A).

[7] Va. Code § 16.1-77 (general district courts hear all cases where the amount in controversy is less than $4,500. Cases with disputed amounts between $4,501 and $25,000 can be brought before a general district or circuit court judge).

[8] Va. Code § 16.1-122.5 (the judge has “discretion to admit all evidence which may be of probative value” even if formal rules of evidence are not followed).

[9] See Va. Code § 55.1-1226 (note: under section (f), tenants may be able to recover damages and attorney’s fees, if the court finds that the landlord willfully failed to comply with a valid request for security deposit return).

[10] For example: evidence of repairs, evidence of a successful walkthrough, lack of evidence of itemization, evidence of an updated lease after renewal.

[11] Va. Code § 55.1-1235.

[12] Id.

[13] Id.

[14] Va. Code § 55.1-1214 (the landlord must complete their walkthrough within 5 days of occupancy end).

[15] See Virginia Code Chapter 12: Virginia Residential Landlord and Tenant Act.

Written by Fall 2023 M-VETS Student Advisor Alden Campo.

Introduction:

Mental Healthcare for U.S. Servicemembers and Veterans who have experienced the War on Terror is wholly insufficient to deal with the traumas they have undergone in service of their nation. Post-Traumatic Stress Disorder (“PTSD”) is commonplace throughout the armed forces amongst personnel who have seen active-duty combat, and many Servicemembers and Veterans turn to Substance Use to cope with the traumas related to their service, often concurrently developing a Substance Use Disorder (“SUD”). The War on Terror has primarily consisted of asymmetrical warfare, resulting in high stress and consistent trauma for those who have served in the Armed Forces during its time.

Prevalence of SUDs and PTSD:

SUDs have grown in prevalence over the past several years, with alcohol use being the most easily measured form of Substance Abuse in Veterans, with over 15% of Veterans engaging in binge drinking on a regular basis.[1] The complex interplay of combat experiences, PTSD, and lack of appropriate or effective mental healthcare during time in the service, followed by inadequate pathways to appropriate assistance upon discharge has resulted in an environment that is effectively encouraging Veterans to “self-medicate” through substance misuse.[2] More than two in ten Veterans with PTSD have a SUD, with the number of Veterans affected by SUDs increasing over recent years due to an increase in rates of PTSD in more recent military conflicts.[3] Twenty-nine percent (29%) of the veterans of the War on Terror will be diagnosed with PTSD at some point in their life.[4]

Barriers to Mental Healthcare:

Stigma surrounding mental health and reluctance to seek support hinder veterans from accessing the care they desperately need, with devastating results.[5] In Virginia alone in 2021, 193 Veterans took their own lives; in the United States that year, the number was 6,392.[6] In a single year, more veterans took their own lives than died in Afghanistan and Iraq.[7] Insufficient resources, both in terms of professionals and logistical accessibility, compound the problem, limiting Veterans’ ability to receive timely and adequate mental healthcare, resulting in Veterans choosing instead to turn to substance use to try and cope with their mental traumas. This has a dangerous effect on their health, both physically and mentally, and has lent itself to the increased rates of suicide that Veterans face.

M-VETS and Veterans:

The M-VETS Clinic has helped Veterans with SUDs and PTSD consistently throughout its history. As a Clinic, we are committed to assisting Veterans; all too often, legal issues can arise in the life of a Veteran who has an otherwise impeccable service record on account of undiagnosed PTSD and their SUD they develop in order to cope with trauma. Understanding the issues underlying the problems of those who come to our clinic seeking legal aid is absolutely essential to be able to provide the best legal services possible.

Conclusion:

Addressing substance use disorders and inadequate mental healthcare for War on Terror veterans requires a comprehensive approach. Dismantling stigma, improving access to mental health services, and advocating for policy changes are essential steps toward ensuring that returning veterans receive the comprehensive care they deserve. As we confront the grim reality of substance use disorders and inadequate mental healthcare among War on Terror veterans, it is vital to channel our efforts into helping and understanding those who have dealt with these problems. By understanding the issues, improving access to mental health services, and advocating for policy changes, we can ensure that those who served our nation receive the comprehensive care they deserve upon returning home, and can ensure that we aim to provide them with the best legal assistance and representation possible.

[1] State of Veteran Mental Health and Substance Abuse, https://americanaddictioncenters.org/blog/state-of-veterans

[2] Id.

[3] PTSD and Substance Abuse in Veterans, https://www.ptsd.va.gov/understand/related/substance_abuse_vet.asp

[4] How Common is PTSD in Veterans? https://www.ptsd.va.gov/understand/common/common_veterans.asp

[5] From War to Home: Psychiatric Emergencies of Returning Veterans, https://www.psychiatrictimes.com/view/war-home-psychiatric-emergencies-returning-veterans

[6]Veteran Suicide Data and Reporting, https://www.mentalhealth.va.gov/suicide_prevention/data.asp

[7] US Military Casualties of War, https://en.wikipedia.org/wiki/United_States_military_casualties_of_war