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/
Monday, March 30, 2015
Changes in the DoD’s policy towards veterans exposed to chemical weapons in Iraq are in the works. Many servicemembers in Iraq injured by chemical weapons were exposed to the substances when road side bombs containing the agents went off near their convoys. While many rules were in place to deal with the injuries of these veterans, the rules were being ignored or applied inconsistently across the board. Thus, the apology from Under Secretary Brad R. Carson, who was appointed by Secretary Hagel to review the military’s policy on these injuries. New rules are also being added to allow veterans burned by sulfur mustard gas to be entitled to a Purple Heart for their injuries.
For more on this issue see here: http://www.nytimes.com/2015/03/26/world/middleeast/army-apologizes-for-handling-of-chemical-weapon-exposure-cases.html?_r=1
Saturday, March 28, 2015
Within six hours of Jon Stewart’s comedy news show airing a piece on the impact of the VA’s rule requiring veterans to live 40 miles “as-the-crow-flies” from a VA Medical facility to use the choice care plan, the VA changed its rules. The new rules allow a veteran to live 40 “driving miles” away from the facility. While this change makes imminent sense, is it a coincidence that Jon Stewart’s criticism came before a major VA policy change that doubled the number of veterans eligible for the choice care program? It wouldn’t be the first time Jon Stewart has criticized the VA and brought national attention to its problems. His Red Tape Diary series in 2013 brought national attention to the VA’s backlog of disability claims by breaking the issue down to a segment of society who otherwise would probably have no reason to know about this issue. He ridiculed the VA’s lack of technology and a year later the VA began implement major technological changes that had been talked about but slow to come around. His episode about the difficulties of Vietnam Veterans with PTSD and poor discharges brought major media attention for the first time to an issue that now has several media outlets interested and finally has a new Department of Defense policy in place to attempt to resolve the issue.
Perhaps all of these are coincidence, but Jon Stewart’s mockery of intransigent government policies keep veterans from benefits have been invaluable to those veterans who have received help after these pieces aired. With Jon Stewart leaving this arena shortly, let’s hope someone else in media picks up this mantle.
For Stewart’s most recent clips see here: http://www.huffingtonpost.com/2015/03/25/jon-stewart-veterans_n_6937380.html
For an article about his past Red Tape Diary episodes see here: http://www.huffingtonpost.com/2015/03/25/jon-stewart-veterans_n_6937380.html
To see a summation of some of his most popular veteran episodes see here: http://www.wearethemighty.com/jon-stewart-military-veterans-2015-02
Friday, March 27, 2015
This week the Department of Veterans Affairs dramatically changed the rules for filing new claims and appealing decisions of the VA. On March 24th the VA implemented a new rule that prohibits veterans from filing what had been referred to as an “informal claim.” An informal claim allowed a veteran to file a claim by merely sending the VA a letter or any other communication that was enough to put the VA on notice that the veteran wanted to begin the claims process. Admittedly, this process was very veteran-friendly because the burden was on the VA to liberally read and review what a veteran sent in to determine if a claim was being filed. The effective date of the claim was the date the informal claim was filed.
The new rules require that a veteran file claims and appeals on special forms the VA has created for these purposes. Claims or appeals sent in any other fashion will not be considered. (See 38 CFR 3.155 – 38 CFR 3.157 is no longer in effect and has been repealed).
Interestingly, the head of the Compensation and Pension Service, Thomas Murphy, told Stars & Stripes in an interview that very few veterans would be affected by this change. However, Stars & Stripes reports that the information the VA gave to Congress to advocate for this change in the rules in fact shows that about one half of the claims filed have been through the informal claims process. The report notes “If the VA numbers in the Federal Registry are correct, hundreds of thousands of veterans have been filing informal claims and appeals each year.” That is a lot of veterans who will need to now understand the new rules or suffer the consequences. A heavy push is also being made to get veterans to file these claims electronically, which for our older veterans would be a truly difficult exercise since many do not use computers extensively. There are legal challenges in the works to these changes in the rules challenging the legality of the changes and arguing that these changes are certainly not in keeping with the VA’s “pro-veteran” stance. Keep your eyes open for the challenges and we will post about them here.
To read the Stars & Stripes article click here: http://www.stripes.com/news/veterans/va-grossly-underestimates-paper-claims-as-new-forms-policy-begins-1.336579
Tuesday, March 10, 2015
Yesterday it came out in the news that in December 2014, a VA social work manager at the VA Medical Center in Indianaoplis sent photos around to her coworkers that appeared to be mocking veterans - in particular those with mental health conditions. The email showed photos of an elf in various scenes in a specific clinic at the hospital. One photo showed the elf begging for more Xanax with a caption that indicated the elf was trying to self-medicate. Another photo in the email showed an elf apparently hanging itself by the neck from a strand of Christmas lights and was captioned that the elf was now showing suicidal behavior.
While the employee has apologized and reiterated her committment to veterans, one is forced to ask how the VA can continually fail to see its reputation being tarnished by these reports? 22 veterans commit suicide every day. This email seems far from harmless when viewed in light of that statistic. While I have no doubt that most VA employees take the issue of veterans' mental health treatment seriously, it is pretty obvious the culture at this VA hospital clinic does not - not when the manager doesn't think twice about joking about it.
How can veterans perceive that the VA wants to help when a manager makes remarks that appear to denegrate the circumstances surrounding the veterans' concerns? To make it worse, the remarks come from the manager, who sets the culture, in charge of primary care services surrounding reintegration of Iraq and Afghanistan veterans from war to home. Some might remember the story last summer of the VA briefing at one hospital that compared veterans to Oscar the Grouch when giving advice to VA employees on interacting with veterans. http://www.washingtontimes.com/news/2014/aug/27/va-office-depicts-veterans-oscar-grouch/ These types of swipes at veterans really demonstrate the VA is tonedeaf while it is trying to rebuild its reptuation amongst veterans after the Pheonix VA Medical Center fiasco.
Perhaps before veterans adjust their perception of the VA, the VA needs to take a hard look at its perception of veterans and their concerns.
For the story on the elf emails see:
Friday, March 6, 2015
A recent GAO report found that the Armed Forces cannot count the number of troops who have been discharged for mental health problems that, in the military’s estimation, did not rise to the level of a disability. When servicemembers are discharged for mental health conditions, the Department of Defense has ordered that one of five codes should be used to designate that the separation was for “mental conditions.” None of the branches have been using these codes, making it impossible to count accurately the number of servicemembers who have been separated for mental health concerns.
A Military Times article highlights that this failure on the part of the branches is important because it can obscure the number of servicemembers separated erroneously with no benefits who instead should have been medically retired. With all of the problems that have plagued the services regarding misdiagnosis of mental health conditions, this concern is a legitimate one. Now, how will the DoD deal with this development? Do a blanket review of all discharges that are not coded (a mighty undertaking!)?
See the Military Times article here: http://www.militarytimes.com/story/military/benefits/health-care/2015/03/02/gao-pentagon-mental-health-discharges/24262045/
See the GAO report here: http://www.gao.gov/products/GAO-15-266
Thursday, March 5, 2015
Nick Swaggert published a thoughtful piece in the Huffington Post regarding the upcoming changes to the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA). http://www.huffingtonpost.com/nick-swaggert/veterans-become-protected_b_6699100.html “This act requires covered federal government contractors and subcontractors to take affirmative action to employ and promote veterans protected by the Act and prohibits discrimination against veterans. The new mandate becomes enforceable as part of a company's 2015 Affirmative Action plan and established a hiring benchmark commensurate with the national veteran population, or 7.2 percent.”
The thought part of Mr. Swaggert’s piece is why America has arrived at the need for forced hiring of veterans in the first place? Mr. Swaggert notes correctly that after WWII employers clamored to hire veterans. Who wouldn’t want to? Veterans know how to show up at the right place, at the right time, and in the right uniform. They are responsible, loyal, and work hard. But, Mr. Swaggert also notes that recently hiring veterans has turned into a liability, not a bonus. A 2011 Fortune magazine article suggests that many employers appear to fear that veterans may be suffering from PTSD or Traumatic Brain Injury, which are seen as impediments to work. Additionally, employers tend to believe that veterans today are too rigid or fear that veterans may be deployed in the future and miss work. Veterans’ job skills are also often misunderstood by employers who are more and more likely not to be veterans themselves. http://fortune.com/2013/11/11/3-reasons-why-companies-dont-hire-veterans/
With less than 1% of our population serving in the military, it’s obvious that more needs to be done to help veterans bridge the gap with civilian employers to negate these stereotypes. Hopefully, more companies will voluntarily step up and welcome our military back home with jobs and not have to be forced into doing so.
For more information on VEVRAA see The Dept. of Labor’s VEVRAA site at: http://www.dol.gov/compliance/laws/comp-vevraa.htm
A newly released Inspector General report finds that two senior members of the Veterans Health Administration’s Chief Business Office illegally moved $96 million dollars in medical support compliance funds to pay for a claims processing system. http://www.va.gov/oig/pubs/VAOIG-14-00730-126.pdf and http://www.washingtonpost.com/blogs/federal-eye/wp/2015/03/04/va-illegally-shifted-funds-to-pay-for-new-it-system-in-frank-underwood-fashion/. This news combined with the President’s desire to move unused money out of the VHA’s new program that allows vets the ability to choose a health care provider outside a VA when wait times are too long (http://lawprofessors.typepad.com/veterans_law/2015/02/choice-card-woes.html) appears to signal that the VHA is having some significant issues in managing the funds it is being granted by Congress. While it is unlikely that VHA’s funding will be significantly affected in the wake of the Phoenix VA Medical Center fiasco, perhaps more thought needs to be put into where the VHA’s money is being spent?
Friday, February 20, 2015
The President’s proposed budget wants to reallocate approximately $10 billion dollars in the VA’s budget meant for the Choice Card program. The Choice Card was created last year to alleviate wait times that veterans had to get medical appointment sat the VA. However, only 27,000 veterans out of the 9 million eligible have used the Choice Card, so the White House believes the funds for the Choice Card could be better used in other places in the VA’s budget – such as reducing the backlog in claims. However, many veterans have voiced concern that the Choice Card is too confusing and another solution is required. According to the Washington Post “some veterans say that when they attempted to use their card, the VA told them they had to live more than 40 ‘miles in a straight line, or as the crow flies,’ from their VA rather than Google maps miles, which makes the card harder to use. Several VA doctors e-mailed The Washington Post saying they themselves don’t understand how to use the program.” The Post also reports that House Veterans Affairs Committee Chairman Jeff Miller (R-Fla.) rejected the plan to reallocate the Choice Card monies, calling it a “complete non-starter, which I will not support.” Read about the Choice Card issues here: http://www.washingtonpost.com/blogs/federal-eye/wp/2015/02/16/it-was-meant-to-reduce-wait-times-but-veterans-say-new-choice-cards-are-causing-more-problems/
Thursday, February 19, 2015
Stripes.com reported this month that General Alison Hickey, the Undersecretary for Benefits at the Veterans Benefits Administration has appointed a claims specialist trained in “Military Sexual Trauma” (MST) to a group Facebook page for survivors of MST. The Facebook page was created by an MST survivor who reports that since a claims specialist has been appointed to liaison with the group 19 veterans have had their MST claims for benefits approved by the VA. Anecdotally, it has often been true of the VA that if a veteran can just speak to someone about their claims (as opposed to passing a never ending stream of paperwork back and forth between veteran and VA) the veterans claims are much more likely to be understood and approved. Perhaps this approach is a new way to help at least those who reach out on social media for help? http://www.stripes.com/news/veterans/va-reaches-out-to-sexual-trauma-survivors-via-facebook-1.329813
An Inspector General investigation of the Oakland, California VA Regional Office found that several thousand claims had been piled up and not processed dating back to the mid-1990s. In 2012 it was discovered that approximately 14,000 claims had not been processed. At this unannounced follow up visit in July 2014, the IG was unable to tell if the original 14,000 claims discovered two years earlier had been appropriately processed because of VA’s poor record keeping practices. Further, the IG noted that “Oakland VARO staff did not properly store 537 informal claims because these claims were not discovered until the office was undergoing a construction project. Some of these informal claims dated back to July 2002.” Now, what is the remedy for these veterans who have been waiting so long for benefits? Is paying back benefits enough or should some type of damages be awarded to these veterans? Nothing in law allows for this type of payment, yet, but perhaps it is something that should be considered? It will also be interesting to see if any discipline actions stem from this investigation. See the investigation here: http://www.va.gov/oig/pubs/VAOIG-14-03981-119.pdf
Tuesday, February 10, 2015
There is a lot of discussion in the news right now about veterans with post-traumatic stress disorder (PTSD) and criminal acts. The next big media frenzy surrounding a veteran with PTSD will come in the form of the high-profile Eddie Routh case. In 2013, Routh shot “American Sniper” author Chris Kyle and another veteran, Chad Littlefield. Routh’s parents say that Routh had been formally diagnosed with PTSD. Additional mention has been made of the fact that Routh’s attorney will attempt to plead the insanity defense because Routh has a mental illness, but there is no indication yet whether this defense will be based on PTSD and its symptoms. See the article about Eddie Routh’s upcoming trial here: http://www.washingtonpost.com/news/post-nation/wp/2015/01/22/the-trial-of-eddie-routh-the-man-who-killed-chris-kyle-will-be-american-snipers-darkest-chapter/
All of this raises an interesting aspect of PTSD and its triggering events. There is a lot of discussion about whether Eddie Routh has PTSD or not. The discussion seems to surround a debate about his combat experience. The Warfighter Foundation, a nonprofit supports combat veterans, has issued statements questioning Routh’s reported PTSD because he never saw combat. A spokesman for the Foundation is quoted as saying “Eddie Routh served one tour in Iraq in 2007, at Balad Air Base (the 2nd largest U.S. installation in Iraq), with no significant events. No combat experience. .. This has NOTHING to do with PTSD. He was an individual with psychological problems that were not associated with his service. So don’t give me that bleeding heart bulls**t that he was a veteran suffering from PTSD. See the article here: http://www.theblaze.com/stories/2015/02/05/veterans-group-claims-to-have-uncovered-potentially-significant-truth-about-chris-kyles-alleged-killer/
Whether Eddie Routh has PTSD is something I do not know the answer to. However, I do know that entirely too often military personnel with no combat experience in the traditional sense suffer from PTSD. For example, one Vietnam veteran with the job (MOS) “electronic device repairman” I worked with was required to supply direct combat support to forward serving troops. This veteran was required to repair lighting on perimeters while being forced to dodge bullets and avoid dead bodies while under sniper fire. A glance at his records would not have revealed this type of trauma, and yet it existed and caused him harm forty years later. Additionally, there are a number of veterans who merely from the constant exposure to potential harm experience trauma. They do not have to actually see or experience an ultimate harm. The VA has recognized this type of trauma as prevalent in the literature and in the veteran population by altering the requirements for proving an in-service event that triggers PTSD. http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1922
While I understand that the experience of combat veterans is not equivalent to anything else, I do have concerns about lessening the trauma experienced by others servicemembers merely because they are not combat veterans. If veterans eat each other alive, things are surely spiraling downhill and signify major problems for veterans in the future. If veterans culturally cannot support each other and appreciate differences in service, who will? And if these veterans are discounted, how much more difficult will it be for them to get treatment from an already swamped VA health care system?
Wednesday, February 4, 2015
This week the Senate unanimously passed the Clay Hunt Suicide Prevention for American Veterans Act following the House’s lead were the bill passed unanimously in January. The act is named in tribute to Clay Hunt, a Marine sniper who took his own life after a battle with PTSD and very little support from the VA that was charged with treating him.
With 22 veterans a day committing suicide, many of whom are attempting to seek care from the VA, this bill could not come at a more crucial time for America’s veterans. The bill will encourage more psychologists and psychiatrists to treat veterans at the VA through a loan repayment program. The bill also calls on the VA to analyze its own mental health system and practices and will lengthen the amount of time veterans can be treated at the VA.
Let’s hope that with this leverage, the VA will be able to hire more practitioners to treat those who are suffering and prevent the long wait times for counseling and therapeutic services that contributed to Clay Hunt’s tragic and unnecessary passing. God speed Clay.
Wednesday, January 28, 2015
Last week, Ken Carpenter, a founding member of the National Organization of Veterans’ Advocates (NOVA), testified on the Hill before the House Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs.
Mr. Carpenter cited many of the statistics that are troubling to practitioners in Veterans Law: after the VA’s adjudication process at the Regional Office level 40% of cases are remanded from the Board of Veterans’ Appeals back to the Regional Office for further development ; over ½ of cases heard at the Court of Appeals for Veterans Claims are remanded for further development; and the inordinate amount of time it takes a veteran’s claims to travel from the Regional Office after a substantive appeal is filed to the time a decision is given by the Board.
When looking at all the delay and what appears to be ineffectual development of cases at the regional office levels, Mr. Carpenter suggests on behalf of NOVA some very interesting changes to the VA process.
1) NOVA recommends Congress eliminate the requirement of the VA to issue a statement of the case and the requirement of the veteran to file a second appeal to the Board of Veterans’ Appeals (the VA Form 9). This would mean that the Notice of Disagreement sent in by a veteran letting the VA know the vet disagrees with a decision would be the only appeal necessary to go to the Board. Current numbers reported by the Board and the Court indicate that removing these two steps could remove THREE YEARS from the current process. (see the Board’s most recently available report here: http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2013AR.pdf and the Court’s here: http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf ) In my experience, most of the Statements of the Case issued copy large portions of the CFR (up to 40 pages sometimes) and send them to the veteran in order to educate the veteran about what is necessary to prove her claims. Then the Statement parrots the same language as the initial decision the veteran received. It does seem that this process has lost its purpose somehow and could stand to be revised or eliminated entirely.
2) Second, Congress should require the VA to certify and transfer a claims file in an appeal to the Board no later than 60 days after the VA’s receipt of a substantive appeal (Form 9). It currently takes 18-24 months for this to occur.
3) Third, Congress should amend statutes to make certain that remands from the Board and the Court to the Regional Office are treated with the utmost urgency. There is an extraordinary amount of delay in this area. The Board’s annual report for 2013 indicates that after remand it takes a year for the Regional Office to complete the order.
These suggestions really reveal the extent of the delay built into the system in three points of the appellate process that someone who does not live and breathe the minutiae of veterans’ law practice might not understand. Congress needed to be alerted to the issues and given specific methods to deal with them that aren’t drowned out in the cacophony of complaints about how long the process is taking for veterans with no clear guidance on how to fix it. Now, it will be interesting to see how Congress responds.
You can find Mr. Carpenter’s testimony here: https://veterans.house.gov/witness-testimony/kenneth-m-carpenter
Tuesday, January 27, 2015
Anyone wondering how the Federal Government’s ballooning debt figures may affect veterans benefits may have found some answers in the CBO’s most recent publication “Options for Reducing the Deficit: 2015-2023.” Two recommendations made to Congress that can lighten future monetary obligations to veterans made it into the recommendations.
The first recommendation is to cut Total Disability due to Individual Unemployability (TDIU) payments to veterans over 65 years old. TDIU is a benefit that attempts to compensate veterans who are unable to secure substantially gainful employment due to their service-connected disabilities. These veterans have disabilities that do not add up to a 100% disability rating on their own, but are considered “totally disabled” due to the cumulative effect of these conditions on their ability to earn a livelihood. There are many conditions that need to be met to receive TDIU and the term “substantially gainful occupation” is such vague regulatory language that it is always in play when this rating is being contemplated. Suffice it to say for purposes of this discussion, TDIU helps disabled veterans who cannot sustain work above marginal employment due to their connected conditions.
With the proposal, the CBO contemplates that the VA could save 15 billion dollars over the next 8 years. The premise of the proposed cut is that veterans who are past Social Security’s retirement age no longer need the TDIU benefit because they would not be working anyway. Additionally, the CBO points out that these vets will be receiving their normal VA disability payments and can most likely qualify for Social Security payments. What this recommendation fails to take into account (and the CBO readily concedes) is that for a veteran who receives TDIU, the likelihood he or she has been able to work consistently may be very low. This may significantly affect the veteran’s ability to qualify for full Social Security payments or to have a retirement nest-egg built up. You can read about the proposal here: https://www.cbo.gov/budget-options/2013/44757 .
The second proposal of the CBO affecting veterans benefits deals with severing benefits for seven specific conditions that the GAO has identified as “generally neither caused nor aggravated by military service.” These seven conditions are: chronic obstructive pulmonary disease, arteriosclerotic heart disease, hemorrhoids, uterine fibroids, multiple sclerosis, Crohn’s disease, and osteoarthritis. The CBO estimates this could save the Federal Government 20 billion dollars over the next eight years.
In favor of this recommendation, the CBO relies on an often heard argument – the VA system should be more like a civilian system and should not compensate for conditions that are unrelated to military duties. The CBO also suggests that “A broader option could eliminate compensation for all disabilities unrelated to military duties, not just the seven conditions identified by GAO. For a condition such as arthritis, for instance, which may or may not result from military duties, the determination of whether the condition was related to military activities could be left up to VA.”
I am not opposed in theory to conditions that are not caused directly by military duties being determined non-compensable. That may be an unpopular statement, but it would be naïve not to recognize that cuts may be made to the VA system and we do need to start looking for places where the least pain for veterans will be felt. However, I am very concerned about how that would be done. The CBO suggestion means that in addition to the many things the VA is required to determine when considering whether a disability may be granted benefits (veteran status, a current disability, an in-service event, and a nexus between the disability and event), it may now also be required to decide if the veteran’s military duties actually caused the condition. That is definitely not as easy as it sounds. In addition to showing the arthritis condition was caused by events during a veteran’s service, the veteran will also have to find a doctor (presumably) who will determine which activities led to the condition. Then the VA’s rating officer will have to make the determination if these activities were part of the veteran’s military duties. This suggestion by the CBO will fundamentally change the determination and delivery of veterans benefits and will undoubtedly shift the burden in this “veteran-friendly” system onto the veteran to prove what a military duty is. As one former NCO I spoke with put it, “When a Sergeant tells a Private to do something he does it, whether it was a part of the Private’s official duties or not. When the Private gets hurt, how in the world will you ever be able to prove ten years after the fact that he was verbally ordered to do that action?” Good point. It seems like a bad idea to require more of an already over-burdened and slow VA.
You can read more about the CBO’s suggestion here: https://www.cbo.gov/budget-options/2013/44756