Veterans Law Prof Blog

VA Issues Proposed Rules Regarding the Caregiver Program -- Comments due Feb. 4, 2025 (by Jennifer R. Morrell, Delaware Law School)

VA issued proposed rule changes regarding its Program of Comprehensive Assistance for Family Caregivers (“caregiver program”). Comments are due February 4, 2025.

VA has proposed some potentially impactful changes to its caregiver program. The most substantial proposed change pertains to the eligibility criteria. Currently, for a veteran to qualify for the program, they must need help with one activity of daily living (ADL) each and every time they undertake the ADL. VA, fortunately, acknowledges that such a requirement is too restrictive and not in line with the goals of the program, which is to provide benefits to veterans with both moderate and severe disability. As such, VA proposes to replace the “each and every time” standard with a “typically requires” standard, which would enable eligibility for those veterans who attempt an ADL for which they require assistance most of the time.  Whether a veteran typically requires assistance with an ADL will be a clinical determination, but it means the assistance is “generally necessary,” and falls somewhere between “often” and “each and every time.” VA seeks input on this proposed change and also invites suggestions for alternative terminology that would best articulate the new standard.

Under the current eligibility criteria, a mere 29% of caregiver applications are approved. Presumably, these changes, if implemented, would lead to an increased approval rate. An increased approval rate, in turn, could result in greater claims processing efficiency, since more veterans who meet the requisite standard are likely to be granted on their first attempt, eliminating unnecessary appeals.  

Another significant and welcome proposed change pertains to the frequency of reassessments. Instead of annually, VA proposes reassessing veterans no more than every two years, with limited exceptions. VA’s reasoning is that minimal change in severity is likely within a 12-month period, given that the program covers those with moderate and severe disability.

VA proposes replacing the definition “inability to perform an ADL” with, simply, a standalone definition for ADL, which would continue to include the current list of common ADLs, such as bathing and toileting.

The proposed rules expand eligibility to veterans residing in assisted living facilities and their caregivers. VA recognizes that veterans in assisted living facilities sometimes continue to receive assistance with ADLs from family caregivers rather than facility staff. Notably, VA will consider caregivers who are living in the same facility, assuming they meet all other requirements.

VA proposes expanding its definition of “serious injury”--one of the basic eligibility criteria for caregiver benefits--to include veterans receiving individual unemployability benefits, which can be granted for disabilities rated 60% or less. Currently, serious injury only includes disabilities rated 70% (either alone or in combination with other conditions).

Some proposed changes implement a decision from the U.S. Court of Appeals for the Federal Circuit, Veteran Warriors, Inc. v. Sec’y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022). For example, VA proposes to remove its references to “supervision, protection, and instruction,” which combine two of the statutory bases upon which a veteran can be determined to need personal care services (“a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired”). Instead of combining these bases, VA would keep them separate, aligning with the statutory text found at 38 U.S.C. § 1720G (a)(2)(C)(ii) and (iii).

With regard to the need for “instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired,” VA proposes interpreting that statutory text as requiring the inability to perform at least one ADL. Regular supervision or instruction, VA proposes, means assistance is needed for only part of the ADL. Extensive supervision, on the other hand, means assistance is needed throughout the performance of the ADL. This distinction would affect stipend level, with extensive assistance warranting the higher level of benefits.

With regard to the need for supervision or protection based on symptoms of neurological or other impairment, VA proposes adding a qualifier that the veteran has a “frequent need” for this type of care. The statute does not contain this qualifier, but VA says they're aligning with how they’ve been applying the law since the Veteran Warriors decision was issued. Without proper guidance, however, this qualifier seems liable to cause significant confusion and inconsistency.

In the proposed changes, VA outlines four bases for the higher stipend amount, an increase from the current three bases.

Finally, VA proposes no change to the current appeal process for caregiver claims and proposes extending the time period for reassessments for legacy participants to 18 months after the effective date of this rulemaking.

For the full proposed rule, see here. Comments are due Feb. 4, 2025.

VA Issues Proposed Rules Regarding Ratings for Neurological and Convulsive Conditions -- Comments Due Jan. 13, 2025 (by Jennifer R. Morrell, Delaware Law School)

VA issued proposed rules this fall regarding the part of the Schedule for Rating Disabilities that pertains to neurological conditions and convulsive disorders. Comments are due January 13, 2025.

According to VA, the proposed changes are intended to incorporate medical advancements, update terminology, and improve the clarity of evaluation criteria. However, the proposed rule changes are based, at least in part, upon a nearly 18-year-old report from the Institute of Medicine.

Some of the changes are long overdue, such as removing the term “neuritis” from the rating schedule. Neuritis, VA explains, is an obsolete term that should be replaced by “neuropathy.”

VA proposes the inclusion of informational language to explain how disabilities from various neurological conditions are evaluated. For sensory impairment, VA proposes simplifying the evaluation criteria to either incomplete sensory deprivation or complete sensory deprivation. VA proposes updating diagnostic code 8004 to Parkinson’s Disease (from Paralysis Agitans) and adding an additional diagnostic code (8026) for Parkinson’s Plus or Secondary Parkinsonism Syndromes to reflect variations in symptoms amongst veterans and to allow for tracking of these diseases within the population.

For the diagnostic code for convulsive tic (8103), VA proposes changing the name to “hemifacial spasm,” to “provide a much more explicit indication as to the condition to be evaluated,” which is a “facial nerve disorder.” However, convulsive tic is the diagnostic code frequently used by analogy to rate Tourette syndrome, as it lacks a distinct code. This proposed change makes it all the more necessary for VA to create a separate diagnostic code for Tourette syndrome, because Tourette syndrome, in moderate and severe cases, extends far beyond simple facial tics, including such symptoms as hand movements that lead to finger deformity, various vocal tics (clicking, cursing/inappropriate speech, etc.), shoulder shrugging, limb jerking, jumping, and touching objects and/or people.

For the full proposed rule, see here. Comments are due Jan. 13, 2025.

Veterans Clinic Consortium Hosts Third National Boot Camp (by Jennifer Morrell, Delaware Law School Veterans Law Clinic)

On September 15, 2023, The National Law School Veterans Clinic Consortium held its third National Boot Camp, a training event for new and returning interns at clinics serving veterans. The event, themed "Visualizing Practice," was attended by over 100 law student interns and clinicians from across the country. Judge Mary J. Schoelen, senior judge at the U.S. Court of Appeals for Veterans Claims (CAVC), delivered the keynote address.   

 

Judge Schoelen discussed her professional background, the CAVC, and veterans law in general, assuring attendees at the start of her address that their work truly matters. "You are really making a difference in the lives of the veterans you are representing," she said.  

 

Regarding her background, Judge Schoelen shared that she was intent on a career in public service, and one of her early experiences was at the National Veterans Legal Services Program. "One of my first clients whose case I won said, 'Now I can stay in my house,' and that just got to me. Still does today. So, who wouldn't want to keep doing that?"  

 

Judge Schoelen spoke about the wide variety of careers available in veterans law and encouraged law students, at a minimum, to take on pro bono veterans law cases once they're barred. For those who want to make a career out of veterans law, she made a strong case for doing just that:

• "We only have 36 volumes of our reporters ... which is not a lot. That shows you there are still so many areas that are ripe for examination and questions and creative arguments."
• "The community of people who work in veterans law is tremendous. It's generally very collegial.  They're very committed to improving the system and helping veterans." 
• "This feeling of helping people and making a difference in their lives is just addictive, and you will love it."  

Touching on the work of the CAVC, Judge Schoelen told attendees the court received over 7,400 appeals last year, approximately 75% of which were disposed of through mediation. She said the court typically receives about 10% of the cases decided by the Board of Veterans' Appeals. She noted that a number of CAVC cases have made it to the U.S. Supreme Court, including one that will be heard this term that she worked on—Rudisill v. McDonough. Scheduled for argument on November 8, Rudisill is about a veteran trying to maximize his Post-9/11 GI Bill benefits.   

 

Judge Schoelen reminded attendees that the CAVC occasionally travels to law schools to hear oral argument. She encouraged students and schools to reach out to Judge Michael Allen if their school is interested in hosting the court. 

 

For students just starting out in veterans law, she offered this advice: "Be as prepared as you can be, but realize you're never going to be totally prepared, and be flexible and comfortable in that unpreparedness." She encouraged students to utilize the resources within their reach, such as research and consulting with professors and fellow students. Networking, she suggested, is not just about getting jobs, but also about getting you a better result by "building relationships ... so you know where to get answers or to help you find them."

 

Following the keynote address, the Boot Camp consisted of four simulations, performed by clinicians and their students:

• an Initial Intake Interview, presented by Judy Clausen and Amy Fulmer
• a Discharge Review Board Hearing, presented by Yelena Duterte, John Brooker, Brent Filbert, Hugh McClean, and Jenny Vanacker (student participants: Ashley Tuburan, Cam Canner, Trevor Jones)
• a Student/Supervisor Meeting, presented by Alex Scherr (student participants: Teco Proffitt, Madison Tucker)
• a Board of Veterans' Appeals Hearing, presented by Jennifer Morrell and Hillary Wandler (student participants: Eryn Scott, Amy Rathke)

Each simulation was followed by a discussion of best practices and questions from attendees. The program also consisted of a tribute to veterans attorney Evan Seamone, who passed away in July. 

 

The Boot Camp is available for viewing by members on the Consortium's website. If you are interested in joining the Consortium, please check out our membership page.  The Consortium intends to hold the Boot Camp biennially moving forward, with the next event scheduled for fall 2025.  

LSU hiring Veterans Legal Clinic Director (By Missy Lonegrass, Professor at Louisiana State University)

The LSU Paul M. Hebert Law Center seeks to hire a faculty member to teach and serve as director for our Veterans Legal Clinic. This position is a twelve-month faculty appointment on the Law Center’s Professional Practice faculty track (long-term contract compliant with 405(c)). The Veterans Legal Clinic is part of our robust clinical program and helps meet the needs of the large veteran population in Louisiana by providing direct legal services and community education. The Clinic has potential to expand and develop a partnership with the VA Hospital in Baton Rouge.

Applicants must have a JD or equivalent degree from an accredited institution, at least 5 years of practice and/or teaching experience, and Louisiana Bar admission (or willingness to obtain Bar admission in the first year of appointment). Applications should include a letter of interest and resume including a list of three references.

LSU is committed to providing equal opportunity for all qualified persons in employment opportunities without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity/equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. 

All applicants must apply through Workday.

https://lsu.wd1.myworkdayjobs.com/LSU

Questions may be directed to Missy Lonegrass, Chair of the Faculty Appointments Committee, [email protected].

Federal Circuit Interprets Scope of 38 U.S.C. § 1110 Language in Spicer (by Emma Wimberly and Teco Proffitt, Student Attorneys at the University of Georgia School of Law's Veterans Law Clinic)

On March 8, 2023, the Court of Appeals for the Federal Circuit decided Spicer v. McDonough. This decision provides veterans with a strong new tool for obtaining secondary service connection when a service-connected condition functionally worsens or impedes treatment of a non-service-connected condition.

Spicer centered on the interpretation of 38 U.S.C. §1110.  It provides veterans with compensation “for disability resulting from” personal injury.  Federal Circuit and Court of Appeals for Veterans Claims (“CAVC”) caselaw acknowledges that it authorizes secondary service connection for disability that results from a service connected condition.

The issue in this case dealt with the causation standard required of a “disability resulting from” a service-connected disability. The Secretary of the Department of Veterans Affairs (“Secretary”) and Mr. Spicer agreed that but-for causation between the primary and claimed secondary condition is required.  However, they disputed how broadly it should be interpreted. 

The Secretary contended that “resulting from” required a more narrow causal link, or something akin to an onset or etiological link between the conditions. On the other hand, Mr. Spicer argued that “resulting from” should be interpreted more broadly, such as where a service-connected disease or injury (leukemia) impedes treatment (total knee replacements) of a secondary disability (arthritis of the knees). 

Building from Judge Allen’s dissent before the CAVC, the Federal Circuit ultimately agreed with Mr. Spicer and held that “resulting from” carries a broader causation standard.  Its holding was based on an interpretation of the plain meaning of section 1110.  

The Federal Circuit reasoned that the plain text of “disability resulting from” referred only to the nature of the secondary disability and not its cause.  Moreover, “resulting from” did not contain any qualifiers or exceptions that would require a more narrow causation standard.  Congress specifically invoked but-for causation based on the language it used when drafting section 1110; if it wanted a narrower (proximate) standard it would have used different language.

The Court then noted that its holding was not inconsistent with VA’s treatment of secondary conditions generally.  VA routinely grants secondary service connection for conditions multiple steps down the causal chain.  The Federal Circuit was not persuaded that granting secondary service connection for such conditions was “speculative.”  Rather, it noted that “the VA regularly evaluates how medical intervention affects or would have affected a veteran’s disability.”  “Such an assessment would seem within the VA’s capabilities, especially given the VA’s everyday use of medical opinions to guide its factfinding.”

Ultimately, the Court agreed with Mr. Spicer.  It held that “disability resulting from” encompasses the worsening of “the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability.”  We think that it is possible that this holding may be interpreted narrowly to apply only to veterans with similar facts to Mr. Spicer.  

Alternatively, it may broaden the scope of causation for a large number of veterans claiming secondary service connection.  If this is true, then Spicer stands as a monumental case for veterans.  It allows them to argue for secondary service connection based on more attenuated circumstances.  This includes cases like Mr. Spicer’s where a service-connected disability worsens or impedes treatment of a non-service-connected condition. 

From here, it will be up to the VA to see what effect they give Spicer in practice.

New, Clinic-Focused Veterans Law Textbook Published by Two Long-Standing Members of the NLSVCC By National Law School Veterans Clinic Consortium

After roughly five years of intensive research and writing, Professor Stacey-Rae Simcox, Stetson University College of Law, and retired William & Mary Law School Professor David E. Boelzner have published Veterans Benefits: Law, Theory, and Practice, a unique book that could benefit countless veterans.

The book, published by Carolina Academic Press, aims to serve as “a useful and complete resource for teachers of veterans law, particularly in the practical context of preparing student advocates in law clinics to assist veterans with their claims for benefits.”

It concisely maps out the incredibly complex VA claims system and shows students how to navigate it.

A practical focus

A few features make the book particularly useful to students working in veterans law clinics at law schools across the country.  First, it provides straightforward explanations of the veteran claim system and how it works.  Another useful attribute is that the most important cases in this area of law are summarized so students spend less time dissecting and analyzing each case and more time working on behalf of their clients.

This presentation allows students and instructors to move more quickly through understanding complicated material toward applying what they have learned.  Perhaps most importantly, the book gives them concrete examples that invite students to apply what they are learning to real-world client situations.

“A clinical course requires practical application of statute, regulation, case law, and analysis to a real-life client’s legal issues,” Simcox, who is director of Stetson Law’s Veterans Law Institute, said. “This book is unique because it provides students with a number of client vignettes to allow the student to apply what they are learning to a practical client scenario, just as they would in practice.”

Bridging a legal gap

Part of what makes veterans law clinics at law schools such a critical resource for veterans going through the VA claims process is a federal policy effectively barring them from hiring an attorney until the agency has examined evidence and issued a decision affirming or denying the claim. This often leaves veterans without an advocate during a critical part of the disability claims process.

Since their work is unpaid, students working through veterans law clinics at their law schools are uniquely positioned to assist – provided they have a solid grasp of the system’s nuances.

“Our hope is that this book will help law students and other advocates gain a deeper understanding of veterans law and help achieve better results for our veterans and their families,” Simcox said. “And on a personal note, as a veteran myself, I consider it a great privilege to give back to my fellow veterans in this small way.”

National Law School Veterans Clinic Consortium

Both Stetson Law and William & Mary Law have been supporters of the NLSVCC since its inception.  These were two of the law schools (including John Marshall Law School now University of Illinois Law School) that founded the NLSVCC in 2016.  Since its beginning, the NLSVCC has grown dramatically and encourages the creation of veterans clinics at other law schools through information sharing and support.  The NLSVCC also advocates policy changes and changes in the law that will benefit veterans through testimony before Congress, amici briefs to the federal courts, and advocacy.  In support of the NLSVCC, Professor Simcox is donating her 2023 royalties to the NLSVCC.

SCOTUS Squashes Equitable Tolling for Disability Compensation Claims (by Augusten Lupianez, Intern at Delaware Law School Veterans Law Clinic)

Adolfo Arellano’s journey to the Supreme Court finally ended on January 23, 2023. After years of trying to obtain retroactive benefits from the Department of Veterans Affairs based on his disability, Arellano was denied at the highest court in the land.

Arellano served in the Navy from 1977 to 1981 and was honorably discharged. About 30 years later, Arellano applied for disability compensation based on psychiatric disorders resulting from his time in the Navy. Eventually he was awarded compensation with an effective date of June 3, 2011, the day he submitted his application. Arellano disagreed with the decision, believing his effective date should be 1981, the year he was discharged from service. He asserted that his disability had rendered him incapable of making such a claim for 30 years. Arellano then worked his way through the Veterans Affairs appeal process and found himself at the Supreme Court, fighting for an earlier effective date.

In determining an effective date for an award, the default rule found in 38 U.S.C. §5110(a)(1) typically applies. It states, “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof.” The statute then lists sixteen exceptions to the rule. Arellano argued that one of these exceptions, §5110(b)(1), the provision stating that the effective date for “disability compensation to a veteran shall be the day following the day of the veteran’s discharge or release if the application therefor is received within one year from such date of discharge or release,” allows for equitable tolling. Because he was unable to file for benefits due to his disability, he asserts section (b)(1) applies. Equitable tolling could then allow the effective date of the award to date back to 1981, despite the general rule. If the Supreme Court had sided with him, he would have been able to recover decades worth of disability compensation. Unfortunately, this was not the case.

A unanimous Court decided that Congress did not intend for §5110(b)(1) to allow for equitable tolling. An opinion delivered by Justice Barrett reasoned that though equitable tolling is presumed to be present in statutes written by Congress, it can be rebutted and has been here. In the case of §5110(b)(1), the Court believed allowing equitable tolling to apply here would be “at odds with the statutory text and structure[.]” Arellano v. McDonough, 143 U.S. 543 at 548 (2023).

Congress created an exhaustive list of exceptions to the default rule §5110(a)(1) offers. The Court believed that if Congress had intended for equitable tolling to apply, it would have added it among the sixteen exceptions it lays out. The Court looked at the language of the statute, concluding that statutes containing “‘not only procedural limitations, but also substantive limitations on the amount of recovery’ strongly indicate[s] that ‘Congress did not intend courts to read other unmentioned, open-ended “equitable” exceptions into the statute that it wrote.’” Id. at 549 (quoting U.S. v. Brockamp, 519 U.S. 347, 352). The Court pointed out that §5110(b)(4), the exception allowing for equitable tolling for disability pensions when the disability prevented a veteran from applying for benefits, shows that Congress was thinking about the possibility that disability could create an exception. Since Congress did not expressly include similar language in §5110(b)(1), it must not have intended for equitable tolling to apply to this exception. Id. at 550.

This was an unfortunate decision for Arellano and for all veterans who struggle with debilitating disabilities, and creates a situation where a veteran under these circumstances seeking pension is treated more favorably than one seeking compensation. Veterans in this position are not missing deadlines because they wanted to; they simply could not do so due to circumstances outside of their control. Nonetheless, the holding prevents the application of equitable tolling to §5110(b)(1).

Veterans Law Clinics Highlighted in NLSVCC Congressional Testimony (By Holly L. Christian, Detroit Mercy Veterans Law Clinic)

On May 11, 2022, Judy Clausen, Legal Skills Professor and Director of the Veterans and Servicemembers Legal Clinic at the University of Florida, testified on behalf of the National Law School Veterans Clinic Consortium in front of the House Committee on Veterans Affairs Subcommittee on Economic Opportunity during its oversight hearing entitled “Reducing Veteran Suicide by Addressing Economic Risk Factors.” As legal and justice concerns may factor into a veteran’s economic well-being, a representative of the subcommittee reached out to NLSVCC to learn how law school clinics serve the veteran population and how they assist the unique needs of this group. As Deputy Chair of the Consortium’s Legislative Advocacy Committee, Professor Clausen led this effort by soliciting case outcomes, feedback, and input from other NLSVCC members before testifying.

Professor Clausen’s testimony first focused on four ways that veterans law clinics address upstream risks of suicide. These include advocacy in VA benefits claims and appeals, advocacy in discharge upgrades and recharacterizations, involvement in the criminal justice system, and civil legal representation and know your rights presentations. She highlighted the work and success of various veterans law clinics by providing numerical data and anecdotes.

Next, Professor Clausen posed ideas for reform such as: providing law school clinics with federal funding, expanding the G.I. Bill benefits to veterans with general discharges, enhancing VASH services and VA disability pension, allowing veterans with other than honorable discharges to retain eligibility for disability compensation, providing VA healthcare to veterans regardless of discharge status, using special measures to address homelessness, expediting the discharge review process for veterans who received bad paper discharges because of their sexual orientation under discriminatory policies such as Don’t Ask Don’t Tell, and discharging servicemembers with no lower than a general when they have a diagnosed mental health condition and their only misconduct leading to discharge is marijuana use. Professor Clausen also suggested bringing together providers, advocates, veterans, and other stakeholders to plan and take cooperative action to address these types of issues through the creation of a CHALENG Project.

You can view the recorded testimony through this YouTube link: https://www.youtube.com/watch?v=rrpGHhreyTY&t=6085s

NLSVCC Holds Biennial Conference, Elects Three New Board Members (by Jennifer Morrell, Delaware Law School Veterans Law Clinic)

On June 23 and June 24, the National Law School Veterans Clinic Consortium held its biennial conference, the first since before COVID. The event, held virtually, was free for members and law students, and featured two prominent keynote speakers—Judge William S. Greenburg of the U.S. Court of Appeals for Veterans Claims and Mel Bostwick, a partner in the Supreme Court and Appellate practice of Orrick, Herrington & Sutcliffe.  

The conference featured topics such as character of discharge and discharge upgrade cases, advocating for Native American veterans, burn pits, law school clinic best practices, and electronic VA access. The innovative conference platform allowed for attendee interaction before and between sessions. 

NLSVCC held its annual members meeting the first day of the conference, and outgoing President Matt Wilcut announced the newly elected board members:  

• Samantha Kubek, Assistant Clinical Law Professor and Director of the Robert W. Entenmann Veterans Law Clinic at Hofstra Law School (three-year term). 
• Samantha Stiltner, Director of University of Detroit Mercy’s Veterans Legal Clinic (three-year term). 
• Judy Clausen, Legal Skills Professor and Supervising Attorney for the Veterans and Servicemembers Legal Clinic at the University of Florida Levin College of Law (two-year term).  

Matt also announced the winners of the Consortium’s annual awards. Outgoing board member Angela Drake, Director of the Veterans Clinic and Instructor at the University of Missouri School of Law, was honored with the Dave Myers award for her tremendous and far-reaching collaboration, which extends to multiple committees, including the amicus, legislative, and conference committees. Private attorney Robert Davis was selected for this year’s Tom Reed award, which is given to someone who consistently participates in discussions and advances the profession by sharing their vast knowledge with others on the veterans clinic listserv and beyond. Robert was recognized for providing countless hours of solid legal advice to his peers.  

VA Office of the Inspector General Report Exposes C&P Exam Vendor Issues (by Jennifer Morrell, Delaware Law School Veterans Law Clinic)

Last month, the VA Office of the Inspector General (VAOIG) released a report exposing the subpar performance of the companies providing Compensation & Pensions examinations (C&P exams) for veterans in connection with their claims and appeals. The report does not come as a shock to anyone practicing veteran benefits law, but it should be alarming to the general public and to the veteran population. Why? The bottom line is that the contractors are making a significant number of mistakes, they were not being held accountable for the mistakes, and the mistakes were not being communicated to the VA employees who were issuing decisions based on these erroneous exams. All three companies were charged with maintaining an accuracy level of 92 percent. However, all three vendors have been below that threshold since at least 2017.  One vendor’s accuracy rate has been between 66-74 percent since 2017. The second vendor’s accuracy rate has been 72-78 percent since 2017. The third vendor’s accuracy rate has been between 87-88 percent since 2017. The VAOIG made four specific recommendations to improve the program, and VA—as of the date of the report—has taken action on at least two recommendations and has plans for corrective action regarding the final two recommendations.  

The report, released June 8, can be found here. 

VA Proposes Changes to Mental Disorders Ratings Schedule (Jennifer Morrell, Widener University Delaware Law School)

The Department of Veterans Affairs (VA) has proposed to amend the section of the Schedule for Rating Disabilities that addresses mental disorders—38 C.F.R. § 4.130.

The changes include a completely revamped general rating formula and the inclusion of eating disorders under the rating formula for mental disorders.  According to VA, this is the first substantive revision since 1996. The revised rating criteria are partly based on the DSM-5 and reflect an emphasis on ability to function in the work setting versus just symptoms.  VA states that symptoms determine diagnosis but do not always translate directly to functional impairment.

VA notes in its explanation for the proposed changes that employees with mental disorders are at higher risk for work absences than the general population.  VA also states that mental disorders reduce engagement in life activities more than physical disabilities.  Further, VA relies on studies that found veterans with mental disorders are undercompensated by the current rating schedule. 

VA’s proposed changes include an entirely new rating formula based on five separate domains:  1) cognition, 2) interpersonal interactions and relationships, 3) task completion and life activities, 4) navigating environments, and 5) self-care.  Each domain would be assessed for severity, with the components of severity being intensity and frequency.  Intensity would be measured as none, mild, moderate, severe, and total.  Frequency would refer to the percentage of time in the past month during which impairment occurs.  Generally, frequency is rated as being either less than 25% of the time or greater than 25% of the time, which is in keeping with how the World Health Organization and DSM-5 assess impairment.  VA acknowledges that impairments occurring over 25% of the time are more disabling socially and occupationally than those that occur less frequently.

Once the VA evaluates intensity and frequency of impairment for each domain, VA would then find the value—from 0 to 4—for each domain.  For example, a 4 would be assigned for total impairment that occurs 25% or more of the time.  A 3 would be assigned for severe impairment that occurs 25% or more of the time or total impairment that occurs less than 25% of the time. 

Based on its proof of concept study involving 100 veterans with mental disorders, VA claims the proposed rating changes are potentially more generous than the current formula.  One inarguably positive change VA proposes is doing away with the 0% rating for mental disorders, the idea being that if you warrant a diagnosis for a mental disorder you have some minimum level of impairment.

VA’s changes include a note directing evaluators to consider any ameliorative effects of medications prescribed for a mental disorder.  This would mean that evaluators would rate only the actual symptoms present, without speculation as to how severe the symptoms would be without medication.  

The proposed changes can be found here.  Comments are due by April 18, 2022.

VA Proposes Changes to Digestive System Ratings Schedule (by Danielle Alush and Jennifer Morrell, Widener University Delaware Law School)

The Department of Veterans Affairs (VA) has proposed to amend the section of the Schedule for Rating Disabilities that addresses the digestive system—38 C.F.R. § 4.110-4.114. The changes include the addition of new medical conditions and new diagnostic codes (DCs), revision and clarification of rating criteria, and--according to VA--updating terminology to reflect the most up-to-date medical knowledge and clinical practice of the gastroenterology and hepatology specialties.

According to VA, the update reflects recommendations from the 2007 report of the National Academy of Sciences, Institute of Medicine. VA also relied on the Rome Foundation, a non-profit organization that created a classification system for the various forms of gastrointestinal dysfunction, known as Rome IV.

The following are some of the proposed changes:

· Ulcers—According to VA, advancements in medicine indicate that most peptic ulcers are caused by infection (Helicobacter pylori) or the use of pharmaceuticals such as aspirin or other non-steroidal anti-inflammatory drugs and not caused by location. The VA proposes to eliminate outdated instructions such as Section 4.110 and DCs 7304-06, all of which classify ulcers by location.

· Dumping syndrome—VA proposes to rate dumping syndrome under the new DC 7303, "Chronic complications of upper gastrointestinal surgery," which covers surgeries on the esophagus, stomach, pancreas, and small intestine, including bariatric surgery. In addition, VA proposes to eliminate Section 4.11, as the material in it becomes superfluous once the new DC takes effect.

· Weight Loss—In the current ratings schedule, weight loss requirements vary across numerous different conditions. VA proposes to rename section 4.112 “Weight loss and nutrition” and substantially revise the definitions contained therein to achieve greater uniformity in decision-making. The updated section includes four main definitions: Weight loss, baseline weight, undernutrition, and nutritional support. Finally, the new section would allow the use of either the Hamwi formula for ideal body weight (IBW) or the Body Mass Index (BMI) table in assessing “baseline weight.”

· GERD—VA currently rates GERD analogous to hiatal hernia under diagnostic code 7346. In the proposed changes, VA would assign GERD its own diagnostic code (7206), but VA would continue rating the condition by analogy, this time using the diagnostic code for esophageal stricture, DC 7203.

· Other new diagnostic codes—A number of new codes proposed in this comment are intended to provide more specificity and possibly a more gainful rating to claimants, according to VA. The new codes include gastroesophageal reflux disease (DC 7206—mentioned above), Barrett's esophagus (DC 7207), chronic complications of upper gastrointestinal surgery (DC 7303), liver abscess (DC 7350), pancreas transplant (DC 7352), celiac disease (DC 7355), gastrointestinal dysmotility syndrome (DC 7356), and post pancreatectomy syndrome (DC 7357).

VA’s proposed changes can be found here. Comments are due by March 14, 2022.

Congressional Action Expands Agent Orange Presumption Beyond Parkinson’s Disease to include Parkinsonism (by Jennifer Morrell, Widener University Delaware Law School)

In 2010, the VA added Parkinson’s disease to its list of conditions which are presumptively linked to Agent Orange exposure. This addition to the official list of presumptive conditions followed the usual route, whereby the Secretary of VA considered scientific studies and concluded there was enough of an association between Agent Orange and Parkinson’s disease to warrant a presumption. The VA’s final rule was effective August 31, 2010.   

Commenters on VA’s initial rule urged VA to include Parkinsonism on the presumptive list.  However, VA rejected this request, explaining that the report on which the agency relied only evaluated the correlation between Agent Orange and Parkinson’s disease. VA further stated that according to the report, Parkinsonism is not the same disease as Parkinson’s disease.  

 

According to the Mayo Clinic, “Parkinsonism is any condition that causes a combination of the movement abnormalities seen in Parkinson's disease — such as tremor, slow movement, impaired speech or muscle stiffness — especially resulting from the loss of dopamine-containing nerve cells (neurons).”  

 

In March 2016, the National Academies of Medicine issued a report that expanded the definition of Parkinson’s disease to include Parkinsonism and Parkinson-like symptoms. Despite this development, VA failed to expand its presumptive list. 

 

This year, Congress took matters into its own hands by adding a section to the 2021 National Defense Authorization Act that compelled VA to add three new conditions to the presumptive list, including Parkinsonism. The other two conditions are hypothyroidism and bladder cancer.  

 

The significance of this move is that Parkinsonism is a broader category than Parkinson’s Disease and will allow more veterans with movement disorders to obtain disability compensation benefits from VA. In addition, if veterans made claims in the past for conditions that fall under the umbrella term of Parkinsonism, they will be added to the Nehmer class and could wind up with benefits effective the date of their original claim.  

Veterans Law Clinic Group Hosts Second Annual National Boot Camp - by Jennifer Morrell (Widener University Delaware Law School)

In September, over 100 law student interns, faculty, and advocates from all over the country gathered to attend the second annual boot camp for clinics serving veterans, hosted by the National Law School Veterans Clinic Consortium (NLSVCC).  

The Honorable Michael P. Allen of the U.S. Court of Appeals for Veterans Claims (CAVC) opened the live program with his remarks.  Judge Allen provided boot camp participants with a broad overview of the Department of Veterans Affairs and then offered insight into what distinguishes the CAVC from other appellate courts.  One aspect Judge Allen noted is the fact that the CAVC has the authority to manage class action cases.  "There is no other appellate court in the country that can actually certify a class at the appellate level, and that has been so dramatically challenging," Judge Allen stated.  Judge Allen also noted that the Court has nationwide jurisdiction, a rarity among appellate courts.   

During his remarks, Judge Allen touched on some of the skills incoming interns will develop during their careers, including writing and talking to clients about difficult matters.  The most important skill, Judge Allen posited, is listening.  "Lawyers do not do enough listening," Judge Allen stated.  "They think the most important thing is to ask the question. But a question to which you do not listen to the answer is actually a meaningless exercise."

Judge Allen closed with a personal and inspiring story about the impact law students can have in the world, whether they wind up becoming a U.S. Supreme Court justice or a small-town lawyer working out of a barn.  If you want to hear more of this story and the entirety of the Judge's remarks, head to NLSVCC's YouTube channel.

The boot camp was held virtually again, with five live sessions and five asynchronous sessions.  The programming saw some changes based on feedback following the inaugural event in August 2020.  

First, the boot camp was spread out over the course of two days instead of one. The event also was held further into the fall semester, to allow students to get their bearings so that the information presented could be considered with context.  The boot camp's live programming incorporated increased participant interaction.  In her session on ethics, Professor Margaret Costello from the University of Detroit Mercy School of Law acted out an attorney-client scenario along with one of her students.  Professor Costello then split attendees up into breakout rooms for discussion about the various ethical issues posed by the skit.   In a second interactive session, a panel of former and current interns helmed themed breakout rooms, with attendees free to move between the rooms throughout the session. One breakout room on careers in government veterans work featured an attorney from the VA's OGC CAVC litigation group as well as Jillian Berner, a senior staff attorney at the veterans clinic at the University of Illinois Chicago School of Law who clerked for a  CAVC judge earlier in her career.   A breakout room on nonprofit veterans work featured Samantha Kubek, Clinical Professor and Director of the veterans clinic at Hofstra Law, who spent five years working as a veterans law attorney at New York Legal Assistance Group.  

Other live sessions included Reviewing Veterans’ Military and Medical Records & Creating Chronologies; Military Sexual Trauma & Representing Survivors; and Shaping the Narrative for Veterans: Developing the Theory of the Case in the Papers & Beyond.  Each session closed with a brief Q&A segment in which attendees were able to pose questions to the presenters.  

A selection of the live sessions are available on the NLSVCC's YouTube channel. The asynchronous sessions from this year and last year are available to NLSVCC members on the Consortium's website.  If you are interested in supporting the NLSVCC by becoming a member and gaining access to these and other resources, please visit the website.  

VA Calls for More Comments Regarding Regulatory Bars to Benefits (by Jennifer Morrell, Delaware Law School Veterans Law Clinic)

In July 2020 the VA issued a proposed amendment to 38 CFR 3.12 which would update and clarify the regulatory bars to benefits.  Over 70 comments were submitted from both individuals and organizations--including the American Psychological Association, Vietnam Veterans of America, and the National Law School Veterans Clinic Consortium.  However, the comments apparently varied substantially enough that VA is asking for further feedback with regard to specific questions. 

The proposed rule would change the law with regard to VA character of discharge determinations based on "willful and persistent misconduct," "moral turpitude," and "homosexual acts involving aggravating circumstances or other factors affecting the performance of duty."  Additionally, the rule would create an exception for certain regulatory bars for "compelling circumstances."

For compelling circumstances, VA proposed that the impact of mental impairment be considered as a factor in this exception to the regulatory bar.  For this round of comments, VA is asking commenters to list specific conditions, symptoms, and circumstances that should be taken into account.  VA also has requested comment on whether their proposed "Sexual abuse/assault" language should be replaced with "Military Sexual Trauma" or some other terminology and whether adjudicators should be reminded to look beyond service records for corroboration of such trauma.  

For willful and persistent misconduct, VA is seeking additional comment on whether the rule should draw a distinction between "minor misconduct" and "more serious misconduct" as well as whether a particular number of incidents of misconduct should be delineated.  

For moral turpitude, VA is seeking further comment on its proposed definition, which seeks to provide more clarity than the existing definition.  

Finally, for benefit eligibility, some commenters suggested that VA only apply statutory bars to benefits.  However, others voiced concern that doing so might affect military order and discipline and denigrate others' honorable service. VA has asked commenters to explain how military order and discipline could be affected as well as how such denigration could occur.  VA also specifically asked for comments on what changes could be made to ensure fair adjudication for historically disadvantaged and vulnerable populations.

Comments must be received by the VA on or before October 12, 2021. VA will hold virtual listening sessions on October 5 and October 6, 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/

Project 100,000: Spotting the Issue in Discharge Upgrade Cases -- by Robert R. Davis

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.

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:

https://www.federalregister.gov/documents/2020/07/10/2020-14559/update-and-clarify-regulatory-bars-to-benefits-based-on-character-of-discharge

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.

Outreach to Rural Veterans – By Brent Filbert (Mizzou Law Veterans Clinic)

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.   

VA’s New Caregiver Regulations - By Yelena Duterte (UIC John Marshall Law School)

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.