Monday, April 12, 2021
New Review Board for Discharge Upgrades to Serve All Branches -- by Jennifer R. Morrell (Widener University Delaware Law School)
For attorneys who handle discharge upgrades, there's a new kid on the block: The Discharge Appeal Review Board (DARB). The DARB was created by the National Defense Authorization Act of 2020, which was signed into law by Donald Trump on December 20, 2019, and is considered the final level of administrative review before the Department of Defense (DOD). Although the DARB is open to appeals from members of any branch of service, the United States Navy has been designated the branch that will oversee the new entity.
According to the DOD's press release, the DARB is an option to any service member who was discharged on or after December 20, 2019, to provide final review of discharge or dismissal characterization upgrade requests. Petitioners must have exhausted all available remedies before the discharge review boards and boards for correction of military records.
The new Board is considered a document review board without any opportunity for a personal appearance by service members. Additionally, the Board's review is limited to whatever documents were in the file at the board below. If a petitioner wishes to present new evidence, they must submit a reconsideration request to, and receive a decision from, the board for correction of military records before any such evidence will be considered by the DARB.
According to her LinkedIn profile, Martha "Martie" Soper has been appointed the first Deputy/Director of Operations for the new Board.
For more information, you can read the DOD press release here: https://www.defense.gov/Newsroom/Releases/Release/Article/2564345/dod-announces-new-discharge-appeal-review-board-option/
Wednesday, February 24, 2021
Project 100,000 isn’t very present in the public consciousness anymore. Maybe it never was, but it was part of the story in movies like Forrest Gump and Full Metal Jacket.
For those unaware, Project 100,000 was a Vietnam-era program that loosened academic standards for service. Not surprisingly, many of the individuals who served in Project 100,000 ended up with bad paper discharges when they were asked to perform work beyond their capacity.
Membership in Project 100,000 is prevalent enough that I look through the records of almost every Vietnam-era client for references. I even screen clients who served just after the war because the program appears to have been unofficially extended.
Examining for membership in Project 100,000 requires looking closely at entrance test scores. Reviewing these test scores is not always easy because there were a lot of unethical recruiting practices being used at the time. I had a client who could barely read, but somehow managed to score in the 124th percentile on the Armed Forces Qualification Test (AFQT). His real score was a 12, which put him in category IV (of five).
This means you have to look at every score in the records. Most of the time there’s some indicator of a potential issue. I look for an AFQT score of 30 or below, a general technical below 80, and any reference to membership in Category IV or V. There’s supposed to be a stamp on the enlistment contract; however, I rarely see it in my client’s records.
There are other records you can check. If you get the client’s school records, you can look for IQ testing. You may also see references to the antiquated term “educable mental retardation” or “EMR.”
In-service performance reviews will sometimes give a clear indication of an inability to perform duties. When looking at these records, it’s important to know that base-level servicemembers were not supposed to be informed about membership in Project 100,000. This means that a client’s commanding office may not have known that the client couldn’t read or do more than basic math. Knowing about this withheld information will help you understand the records and also help you explain to an adjudicator why your client was treated unfairly.
The book McNamara’s Folly by Hamilton Gregory will be of interest to anyone who wants more information. I also did a CLE on this issue for the North Carolina Bar Association: Project 100,000 and the New Standards Men | NCBA CLE (ncbar.org).
Robert Davis is a veterans law practitioner and co-chair of NLSVCC Legislative Advocacy Committee.
Friday, January 22, 2021
NLSVCC Opposes VA's Proposed Amendments and Definitions Regarding Character of Discharge Determinations -- By Claudia Marina Velasquez (University of Florida Levin College of Law)
Generally, a veteran’s character of discharge must be categorized under other than dishonorable conditions to be eligible to receive VA benefits and services. A veteran is denied benefits if the reason for separation falls under one of the VA’s statutory or regulatory bars to benefit eligibility.
In early July, the VA proposed to amend its regulations regarding character of discharge determinations under 38 C.F.R. § 3.12. Specifically, the VA proposed to modify its framework for discharges considered “dishonorable” for benefit eligibility purposes and extend a “compelling circumstances” exception to certain regulatory bars. Members of the NLSVCC Government Affairs and Advocacy Committees collaborated to submit a comment addressing the VA’s use of the terms “moral turpitude” and “persistent” in the proposed regulation. The NLSVCC’s comment also addressed the VA’s consideration of mental health issues in adjudicating character of discharge. Committee members Robert Davis, Amy Kretkowski, Judy Clausen, Chad Lennon, Zachary Ross, and Claudia Marina Velasquez drafted the comment on behalf of the NLSVCC.
The VA proposed to define the “moral turpitude” bar as a “willful act that gravely violates accepted moral standards and would be expected to cause harm or loss to person or property.” The NLSVCC committee members argued that this broad definition should exclude misconduct adjudicated as minor during service. While the VA acknowledged that minor misconduct could not amount to moral turpitude, the NLSVCC committee members emphasized that the proposed definition failed to acknowledge the actual adjudication of an offense as minor and linked the evaluation to hypothetical punishments that were not used. The committee members noted that under the proposed rule, a veteran could accept a non-judicial punishment regarding an “unartfully plead offense” based on the representation that the misconduct would be treated as minor, but then have the VA misinterpret what actually occurred. By treating minor misconduct more strictly after service, the NLSVCC committee argued that veterans may be incentivized to challenge minor, easily-resolved offenses during service. This unintended effect threatens to waste the time of experienced advocates and adjudicators.
The VA also proposed to define “persistent” (which is not defined under the existing regulation) under the C.F.R. § 3.12(d) “willful and persistent misconduct” bar. The proposed regulation defined “persistent” as “ongoing over a period of time” or “recur[ring] on more than one occasion.” The NLSVCC committee argued that the proposed definition was overbroad. For example, a veteran who committed an act of minor misconduct more than a year after a completely distinct type of misconduct could be barred from receiving benefits, yet persistence is not shown by two unrelated acts of misconduct. NLSVCC’s comment also pointed out that the proposed definition also removed the discretionary authority to review a veteran’s disciplinary history that allows an adjudicator to determine whether a veteran’s misconduct was actually “persistent.”
Further, the NLSVCC committee cautioned that the list of mental health conditions under the proposed “compelling circumstances exception” for prolonged AWOL and three types of misconduct should not be exclusive. The proposed regulation listed certain mental impairments at the time of prolonged AWOL or misconduct that “will be considered,” but did not expressly state whether other diagnoses that are not listed would also be considered. The NLSVCC comment urged the VA to clarify whether or not the list was exclusive to prevent unnecessary confusion among its adjudicators and to ensure the quality and timely processing of veterans’ claims and appeals.
You can view the proposed comment and other comments submitted here:
Claudia Marina Velasquez is a 3L at the University of Florida Levin College of Law and a student clinician at UF’s Veterans and Servicemembers Legal Clinic.
Sunday, December 20, 2020
In 2019, the Mizzou Law Veterans Clinic kicked off an exciting program, entitled “Tigers for Troops” to provide needed assistance to veterans living in the rural areas of Missouri.
Missouri has the 15th largest population of veterans of any state in the country. Approximately 65% of Missouri counties have no dedicated Veterans Service Officer from the Missouri Veterans Commission (MVC). These counties are almost exclusively in rural and remote parts of the state. This leaves approximately 131,000 mostly rural veterans without regular access to a VSO in their county. As a result, it can be very difficult for these veterans to get the necessary assistance to file VA disability claims and they rarely have access to veteran’s law attorneys who can represent them on appeal or in a discharge upgrade case. Moreover, as government systems, including VA, move more online, the lack of accessible broadband internet access in remote communities creates further issues for many rural Missouri veterans.
The Clinic’s solution to this problem was Tigers for Troops. This program was the first of its kind in the United States. Under the program, the Clinic partners with the University’s Extension offices in rural counties throughout the state, providing veterans throughout Missouri with access to the benefits they earned while serving our country. Law students in the Clinic, along with a supervising attorney, visit the extension offices to educate veterans about available resources and assist them with their claims and issues. By doing all consultations remotely, the program has been operating at full capacity throughout the COVID Pandemic. So far, we have been able to reach 73 rural counties in Missouri.
The Tigers for Troops program also trains attorneys throughout Missouri in veterans law so these lawyers can represent veterans on a pro bono basis. Thus far, we have been able to train over 250 attorneys. This significantly expands the number of attorneys in Missouri who are willing and able to represent veterans in VA and discharge upgrade cases.
As part of the Clinic’s rural outreach program, the program’s director, Professor Brent Filbert, hosts a show on IHeart Radio entitled “Roundtable Serving Disabled Veterans in Rural America.” The show occurs bi-monthly on the third Saturday of the month at 4 pm. EST/5 p.m. CST. The next show will be on February 20, 2021.
Thursday, December 10, 2020
In October of this year, the VA implemented their long-awaited Caregiver Program Regulations. In 2018, Congress passed the VA Mission Act which expanded the VA Caregiver Program to veterans who served before September 11, 2001. Veterans who served before May 7, 1975 or after September 11, 2001 are currently the only eligible veterans for the program. However, in 2022, all veterans, regardless of service dates, will be eligible for the VA Caregiver Program. The VA Mission Act also added supplemental benefits for veterans in the program, including financial and legal services. In addition to simply implementing these laws, the VA amended many of their regulations surrounding the substantive eligibility requirements of the program, stipend levels and amounts, and some structural and procedural changes.
To provide a bit of background, the VA Caregiver Program was originally created by Congress in 2010. Congress designed this program to assist post-9/11 veterans who were in need of care due to a serious injury. The program pays a monthly stipend to caregivers for the care they provide to eligible veterans. Additionally, the VA provides healthcare and training to those caregivers.
One of the major changes in terms of eligibility focused on the term serious injury. Originally, the VA defined that a serious injury required one of the following: (1) an inability to perform an activity of daily living, (2) a need for supervision or protection based on symptoms or residuals of a neurological or other impairment, (3) a GAF score of 30 or less, or (4) rated at 100% for an injury that occurred in the line of duty and has been rated at 100% with aid and attendance.
With the new regulation changes, the VA now simply defines serious injury as having a service connected disability rating of at least 70%, either singular or combined. Additionally, the VA removed the required nexus between the serious injury which requires a need for care and the service related injury. This means that the VA now only requires that the veteran meet the new criteria for serious injury (70% rating) and be in need of a caregiver, regardless of whether the need for care stems from the service related injury. This change may help some elderly veterans become eligible for the Caregiver program.
Although on its face this bright line rule may be more inclusive, it is unclear how many veterans, previously eligible for the program, fall below the 70% threshold, but need a caregiver to help with Activities of Daily Living (ADLs) or Instrumental Activities of Daily Living (IADLs) that were related to their time in service.
In addition to eligibility changes, the VA changed their stipend categories and amounts. Previously, the VA calculated the stipend by looking at how much home health aides were being paid in the veteran’s geographical area. The VA had a three tiered system, where the VA would review and score the level of need for each ADL and IADL to determine the level of care that the veteran needs. This holistic approach, although well intentioned, was subjective and inconsistent across VA facilities.
Because of these inconsistencies, the VA moved to a new stipend calculation and two-tiered system. Under the new regulations, the VA utilizes the GS 4, step 1 scale with locality pay for caregiver stipends. The stipend amounts can be either 60% or 100% of this pay scale, depending on the level of care provided to the veteran. In order to qualify for the 100% rate, the veteran must be unable to sustain in the community. The VA defines this as either requiring personal care each time they complete three or more ADLs and be fully dependent on the caregiver to complete these ADLs or the veteran is in need of supervision, protection, or instruction on a continuous basis.
Unsurprisingly, a veteran has already petitioned the Federal Circuit to review the regulation change under 38 U.S.C. §502. In addition to other issues, the Petitioner raises a concern about the stipend amount compared to home health aides. The Petitioner contends that the government pay scales is less than a home health aide and is contrary to the statutory language. To see more about their lawsuit, please see NVLSP’s petition to the Federal Circuit.
As we wait for the Federal Circuit to review the Caregiver regulations, it is important to note that the VHA has sole jurisdiction in determining Caregiver eligibility and stipend allotment. However, there is a pending lawsuit at the Court of Appeals for Veterans Claims for class certification in Beaudette (20-4961), focusing on whether the Board of Veterans’ Appeals has jurisdiction over Caregiver denials.
Saturday, December 5, 2020
NLSVCC Opposes VA's Proposed Amendment to Require that "Aggravation" be Permanent - by Jillian Berner (UIC John Marshall Law School)
Members of the NLSVCC Government Affairs and Advocacy Committees collaborated this fall to prepare a comment related to a proposed VA amendment of the regulatory definition of “aggravation.” VA’s proposed amendment would require a permanent increase in disability under 38 C.F.R. §§ 3.306 (aggravation of pre-service condition) and 3.310 (aggravation of service-connected condition), rather than “temporary” or “intermittent.” Committee members Judy A. Clausen, Robert R. Davis, Amy B. Kretkowski, Chad Lennon, Zachary D. Ross, and Claudia M. Velasquez drafted the comment.
The NLSVCC committee members argued that the change was driven only by VA’s reasoning that temporary and intermittent symptoms were “difficult and time-consuming” and would deny compensation to veterans whose loss of earning capacity might not be long-lasting, but still affects their livelihood and occupational functioning. The committee members wrote that the proposed change contradicted the framework and purpose of VA disability compensation, which is based on any impairment in earning capacity caused by service-connected disabilities. Further, the law doesn’t require a showing of permanent worsening, so the proposed change would improperly raise the hurdle for veterans to obtain compensation. The regulations allowing for convalescent, hospitalization, and ratings for unstabilized conditions also indicate contrary intent for the benefits scheme. They also wrote that the proposed rule didn’t account for the true nature of disabilities, which can ebb and flow. This is especially important for mental health conditions, but physical conditions may also be episodic, and many disability rating codes account for these fluctuations.
The NLSVCC comment also included a cautionary note that aggravation must be adjusted carefully, because no veteran could ever prove permanency—when is “permanency” achieved? Additionally, Social Security, workers’ compensation, and other disability contexts show that the VA is capable of identifying and rating symptoms of service-connected disabilities, even if they are not “permanent.” The VA insinuates that this change will improve efficiency and processing speed, but the committee members posited that the change would actually make adjudication more complicated and places a higher burden on the veteran.
You can review the proposed rule and other comments submitted here: https://www.federalregister.gov/documents/2020/09/11/2020-17672/aggravation-definition.
Sunday, October 25, 2020
National Boot Camp: Crowdsourced Orientation for Veterans Clinics - by Jennifer Morrell (Widener University Delaware Law School)
This past August, law student interns and faculty from all over the country gathered to attend a virtual boot camp for clinics serving veterans. The goal of the program was to provide a unique onboarding experience to incoming veterans clinic interns, by pooling the expertise of the nation’s veterans law clinicians.
The boot camp offered a day-long live program, as well as an array of asynchronous programming. All sessions are now available on the website of the National Law School Veterans Clinic Consortium (NLSVCC), which hosted the event.
The live program kicked off with opening remarks by Chief Judge Margaret Bartley of the U.S. Court of Appeals for Veterans Claims (CAVC). Chief Judge Bartley shared that she interned with the first law school veterans clinic in the country at American University Washington College of Law in fall 1991 and spring 1992, where she handled both a Board of Veterans’ Appeals hearing as well as an appeal before the CAVC.
“I feel like I'm really lucky that I did right off the bat enjoy doing this area of law,” Chief Judge Bartley stated. “Not only is it enjoyable, but it’s very worthwhile in that we’re helping people who served the country and who really need our help.”
Chief Judge Bartley traced the origins of the CAVC with the 1988 passage of the Veterans’ Judicial Review Act and also discussed the most recent veterans legislation—the Appeals Modernization Act, which took effect in 2019. The Chief Judge stated that the new law has already led to two issues before the Court which will be decided by a three-judge panel. “It’s exciting,” she said, “a whole new area of veterans law—how to apply the AMA.”
The idea for the boot camp grew out of a meeting of veterans clinic faculty regarding best practices for remote supervision. Professor Hilary Wandler, Director of the Clinical Law Program and Veterans Advocacy Clinic of the University of Montana School of Law, spearheaded the organization of the event, with assistance from Yelena Duterte (Assistant Professor of Law and Director of the Veterans Legal Clinic at UIC John Marshall Law School), and other NLSVCC members. The idea was met with such enthusiastic support from the veterans clinic community that just three months from that initial brainstorming session, the event unfolded with nary a wrinkle.
The live program—held Friday, August 21, 2020—drew over 200 attendees. That date was voted on by event speakers and NLSVCC members and considered the best timeframe for coinciding with the start of fall semester at the various veterans clinics around the country.
Clinicians were invited to propose topics for both the synchronous and asynchronous sessions. The live boot camp offered six sessions, on topics such as cultural competency in representing veterans, service connection basics, and military discharge upgrades. A total of 11 asynchronous sessions—covering such topics as evidence gathering and CAVC practice—also are posted to the NLSVCC website.
Daniel Elsen, a 3L at the Alexander Blewett II School of Law Veterans Advocacy Clinic at the University of Montana, said the program provided him a broad overview of the process for advocating for veterans. “It is hard to imagine starting work in the VAC without the invaluable experience of boot camp,” he said.
Professor Wandler and fellow organizers were so pleased with the outcome of the boot camp and the feedback on the program that they plan to hold the boot camp annually. Based on participant feedback, the second annual boot camp likely will be split into two half days of programming and will allow for more breaks in between sessions.
For more information on NLSVCC and to access the boot camp materials, please visit nlsvcc.org.
Monday, February 4, 2019
The Court of Appeals for Veterans Claims has announced a 30 day comment period soliciting input regarding proposed rule changes relating to the late filing of appeals in the court. The request can be found here: http://www.uscourts.cavc.gov/documents/MiscOrder04-19.pdf
Last Friday, the Court of Appeals for Veterans Claims issued a limited remand to the Board of Veterans Appeals in the case of Skaar v. Wilkie. The case involves a proposed class action lawsuit on behalf of veterans who claim to have been injured as a result of participation in a clean-up operation following an airplane collision which resulted in four hydrogen bombs being dropped over Palomares, Spain in 1966. The plaintiff class is being represented by Yale Law School's Veterans Legal Clinic. The following comes from a press release about the decision issued by the Clinic:
"In a 6-3 ruling last Friday, the U.S. Court of Appeals for Veterans Claims (CAVC) ordered the Board of Veterans’ Appeals to address appellant Victor Skaar’s argument
that the VA used scientifically unsound methodology to deny his disability benefits claims based on exposure to ionizing radiation. CMSgt. Skaar (ret.) is the lead appellant in a proposed class action of approximately 1,600 veterans deployed in a 1966 clean-up operation after an airplane collision dropped four hydrogen bombs over Palomares, Spain.
The significance of Friday’s opinion was evident in the four different opinions issued by the nine-judge court. “[W]e are overruling more than 2 decades of Court caselaw and changing long established procedural norms,” wrote Judge Mary Schoelen in a concurring opinion. Yet the interim order was appropriate, Judge Schoelen explained, in part due to “the harm that could potentially befall a sizeable class of veterans” were the Court to proceed under its prior practices. “For more than 50 years the VA has denied that cleaning up the nuclear bomb disaster at Palomares impacted our health,” said Mr. Skaar. “I have fought a long battle to get to this point, and am gratified that this order recognizes that the VA was wrong to completely ignore my challenge to its broken system that continually ignored our existence and exposure.”
The CAVC’s order assigns error to the BVA for failing to address Mr. Skaar’s argument, and gives it only 30 days after he submits additional evidence to determine whether the VA’s dose estimate methodology uses “sound scientific evidence.” The case will then return to the CAVC for further briefing and a decision, including whether the Palomares veterans’ challenges against the VA will be resolved on a class basis."
A full copy of the Order can be found here: https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01205567021&caseId=95544&dktType=dktPublic
Tuesday, January 29, 2019
In a decision issued this morning, the U.S. Court of Appeals for the Federal Circuit ruled that the presumption of service connection for certain diseases for veterans who served in Vietnam applies to so-called "blue water" veterans - those who served on ships in waterways off the coast of Vietnam, but did not set foot on land. The case is Procopio v. Wilkie, 2017-1821, and the opinion can be found here - http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1821.Opinion.1-29-2019.pdf The National Law School Veterans Clinics Consortium (NLSVCC) filed an amicus brief in support of the appellant's position.
Monday, January 21, 2019
U.S. COURT OF APPEALS FOR VETERANS CLAIMS (CAVC) 14TH JUDICIAL CONFERENCE SCHOLARSHIP COMPETITION
The CAVC Bar Association is pleased to announce a scholarship competition for law student applicants to attend the CAVC’s 14th Judicial Conference. Selected scholarship recipients will receive paid registration ($290 value) and a travel stipend (up to $500 for those outside the Washington, DC metropolitan area).
This is a two-day conference to be held on April 11 and 12, 2019, at the National Press Club in Washington, D.C. Scholarship recipients will also receive free registration to the Bar Association's half-day component which will immediately follow in the afternoon on April 12.
The CAVC Judicial Conference, which is expected to sell out, is held every three years and is an important opportunity for veterans law practitioners in all sectors (e.g., government, private sector, non-profit) to discuss issues facing today’s veterans. The conference will include presentations from notable authorities in the field of veterans law. Past keynote speakers have included prior VA Secretaries and U.S. Supreme Court Justices. More information regarding the conference may be found at www.uscourts.cavc.gov.
Students are encouraged to consult with their law school to determine if additional funds are available to subsidize travel costs.
Eligibility and Entry Requirements:
To be eligible, applicants must be currently enrolled at an ABA accredited law school. To enter, applicants must submit a written submission (about two pages).
In your written submission, please identify your name and law school. Also describe any experience in veterans law or military service and state your personal interest in the field of veterans law or attending the conference. In so doing, we suggest you also discuss one of the following topics: (1) a challenge that the field faces or will face going forward, (2) a development in veterans law that interests you, or (3) the personal impact that you see yourself making in the field of veterans law.
Only one entry is permitted per applicant.
Entries must be transmitted via email for consideration to email@example.com, with the email subject line “CAVC Judicial Conference Scholarship Application.” The deadline for all entries is Wednesday, February 20, 2019 at 11:59pm EST. The selected recipients will be notified on or after February 25, 2019, and will then be able to register free of charge for the two-day conference. (Registration deadline is March 1, 2019.) Good luck!
Monday, January 7, 2019
Chicago's John Marshall Law School (JMLS) has announced that Yelena Duarte will take over as Director of its Veterans Legal Support Clinic (VLSC) at the end of this academic year. At present, Yelena serves as Director of Syracuse University's Wohl Family Veterans Legal Clinic. The VLSC is one of the country's longest-standing and most successful veterans legal clinics, and Yelena joins a line of outstanding prior Directors including friends Joe Butler and Brian Clauss. Congratulations to both Yelena and JMLS.
CALL FOR PRESENTATION PROPOSALS
Institute for Law Teaching and Learning Summer Conference
“Teaching Today’s Law Students”
June 3-5, 2019
Washburn University School of Law
The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law professors and administrators are reaching today’s law students. With the ever-changing and heterogeneous nature of law students, this topic has taken on increased urgency for professors thinking about effective teaching strategies.
The conference theme is intentionally broad and is designed to encompass a wide variety of topics – neuroscientific approaches to effective teaching; generational research about current law students; effective use of technology in the classroom; teaching first-generation college students; classroom behavior in the current political climate; academic approaches to less prepared students; fostering qualities such as growth mindset, resilience, and emotional intelligence in students; or techniques for providing effective formative feedback to students.
Accordingly, the Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. Each workshop should include materials that participants can use during the workshop and when they return to their campuses. Presenters should model effective teaching methods by actively engaging the workshop participants. The Institute Co-Directors are glad to work with anyone who would like advice on designing their presentations to be interactive.
To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:
- The title of the workshop;
- The name, address, telephone number, and email address of the presenter(s); and
- A summary of the contents of the workshop, including its goals and methods; and
- A description of the techniques the presenter will use to engage workshop participants and make the workshop interactive.
The proposal deadline is February 15, 2019. Submit proposals via email to Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning, at firstname.lastname@example.org.
Monday, December 10, 2018
Friday, November 30, 2018
The Veterans and Servicemembers Legal Clinic at Penn State Law School has a number recent, impressive victories. Read more about them here:
Wednesday, November 28, 2018
Does the VA Have a Duty to Interpret Scientific Evidence Uniformly When the Same Toxin Harms Veterans at Different Sites?
From Michele Vollmer at Penn State:
Penn State Law Veterans Clinic students think so. They have made that argument with success, winning service connection and 100% disability ratings in 2018 for three Vietnam Veterans diagnosed with Acute Myeloid Leukemia (AML). AML’s average age of onset is 67. Men and women who were 22 years old in 1968, the average age of military combatants in the peak year of U.S. deployment in Southeast Asia, are now 72 and at the peak of Acute Myeloid Leukemia risk.
Congress granted Vietnam Veterans the ability to presumptively receive service connection for certain diseases in the Agent Orange Act of 1991. Under the VA’s broad powers granted in 38 U.S.C. § 501, the agency can promulgate regulations to add diseases to the Agent Orange presumptive list. This same power permits the VA to create a presumptive list of diseases for veterans exposed to contaminated water at Camp Lejeune. The agency can add diseases as long as a rational basis for the newly added evidentiary presumption exists.
While the VA added AML to the Camp Lejeune presumptive list, it did not add AML to the Agent Orange presumptive list. In fact, all forms of leukemia are presumptively service connected under the Camp Lejeune regulations. Penn State Law students argued that this dichotomy was unfair when the same toxin, benzene, is found in the contaminated water at Camp Lejeune and in Agent Orange. Three individual VA decision makers agreed but the law clinic students in Spring 2019 will seek to change the law to eliminate the unfairness on a larger scale. How did this happen? The VA staff promulgating rules for Camp Lejeune relied on a report from The Agency for Toxic Substances and Disease Registry (ATSDR) while the VA staff making rules for Agent Orange relied on a report by the National Academy of Sciences. The two groups reviewed different studies for the same goal, to determine whether a link between benzene and leukemia exists. However, the studies examined by the ATSDR were broader, and overwhelmingly showed the similarities in all forms of leukemia, and the link to the environmental toxin benzene. Clearly, more coordination within the rulemaking arm of the VA is needed, especially when so many toxin exposure sites exist, see https://projects.propublica.org/bombs/, and toxin types are bound to overlap at multiple sites -- just as benzene was a common contaminant in Camp Lejeune and Agent Orange.
Saturday, November 17, 2018
Earlier this week, United States District Court Judge Charles Haight, Jr. granted class certification to the plaintiffs in Manker v. Spencer, 3:18-cv-372 (CSH). Roughly stated, the nation-wide class is composed of Navy and Marine Corps veterans who received other than honorable discharges and suffer from PTSD, TBI, MST or other mental health diagnoses. Both Department of Defense guidance memos and federal legislation have instructed military boards reviewing the status of such discharges to apply leniency in deciding requests by such veterans to upgrade their discharge status. However, the Navy Discharge Review Board (which also covers the Marine Corps) has lagged in applying these policies as compared to the Army and Air Force Boards, which have been granting upgrade applications at around a 50% rate, whereas the Navy Board grants such applications at around a 15% rate. A copy of the opinion can be found at 2018 WL 5995486 (D.Conn. Nov. 15, 2018). Students from Yale's Veterans Services Legal Clinic have played a major role in the litigation of the case.
Thursday, November 8, 2018
Greetings folks. After a too long hiatus, the Veterans Law Prof Blog is back and better than ever. This time around, content will be generated from the Scholarship Committee of the National Veterans Law School Clinic Consortium (NVLSCC). If you are not familiar with the NVLSCC, please check out our website - https://nlsvcc.org/ - and consider joining the organization.
The subject focus for the blog will be broad - basically anything relating to the professional interests of folks who teach in law school veterans clinics, or those who do similar work, is fair game.
We are going to be relying on a series of guest bloggers to help generate content, who will serve during rotating 3-4 month periods. Our first set of guest bloggers are:
Stacey-Rae Simcox, who directs the Veterans Advocacy Clinic at Stetson University School of Law - https://www.stetson.edu/law/faculty/simcox-stacey-rae/index.php;
Michele Vollmer, who directs the Veterans and Servicemembers Legal Clinic at Penn State University School of Law - https://pennstatelaw.psu.edu/faculty/vollmer; and
Hillary Wander, who directs the Veterans Advocacy Clinic at the University of Montana School of Law - http://www.umt.edu/law/faculty/directory/default.php?ID=3224
Oh, and I'm Steve Berenson and I direct the Veterans Legal Assistance Clinic at Thomas Jefferson School of Law - https://www.tjsl.edu/directory/steve-berenson
We hope that you will join us frequently and will lend your comments to the content we provide.
Tuesday, March 31, 2015
The debate on the VA’s habit of prescribing drugs to veterans dealing with severe PTSD symptoms and providing treatment or hospitalization as an after-thought has been raging for quite some time. Clay Hunt’s mother, Susan Selke, tells poignantly that it is her opinion the VA’s decision to heavily medicate her son’s severe PTSD symptoms and failure to give him treatment and therapy were big factors in his suicide in 2011. (The Clay Hunt Veterans Suicide Prevention Act is the culmination of a large amount of advocacy done on this issue). For more on Clay’s story see here: http://thelead.blogs.cnn.com/2014/07/10/mother-of-vet-who-committed-suicide-va-didnt-give-him-the-care-he-needed/
Yet another report of a veteran in need of help and sent away with medication is in the news. This veteran, Richard Miles, went into the VA Medical Center in Des Moines to seek help for PTSD that was spiraling out of control. The VA gave Miles medication and sent him out the door. He was found days later, frozen to death with an excess of sleeping pills in his system. Calls for revamping the VA’s response to veterans in crisis is again underway. New legislation is already being proposed. Until we as a nation, and the VA specifically, can get a handle on the treatment of veterans with severe PTSD symptoms with more beds for in-patient treatment, faster appointment times for individual therapy, loosened standards for access to the VA Medical Centers, and less dispensing of drugs without monitoring the effects, we will sadly see more of these cases in the news. It is a criminal epidemic.
For more on Richard Miles see here: http://whotv.com/2015/03/23/veterans-gather-to-honor-richard-miles-and-call-for-change/ and http://dailycaller.com/2015/03/20/veteran-freezes-to-death-after-veterans-affairs-hospital-turns-him-away/