Tuesday, May 2, 2023
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.
May 2, 2023 | Permalink | Comments (0)
Tuesday, March 7, 2023
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.
March 7, 2023 | Permalink | Comments (0)
Saturday, March 4, 2023
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).
March 4, 2023 | Permalink | Comments (0)
Monday, February 20, 2023
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
February 20, 2023 | Permalink | Comments (0)
Friday, July 22, 2022
NLSVCC Holds Biannual 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 biannual 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.
July 22, 2022 | Permalink | Comments (0)
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.
July 22, 2022 | Permalink | Comments (0)
Friday, March 11, 2022
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.
March 11, 2022 | Permalink | Comments (0)
Tuesday, March 1, 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.
March 1, 2022 | Permalink | Comments (0)
Wednesday, October 20, 2021
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.
October 20, 2021 | Permalink | Comments (0)
Monday, October 4, 2021
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.
October 4, 2021 | Permalink | Comments (0)
Sunday, September 12, 2021
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.
September 12, 2021 | Permalink | Comments (0)
Monday, April 12, 2021
New Review Board for Discharge Upgrades to Serve All Branches -- by Jennifer R. Morrell (Widener University Delaware Law School)
For attorneys who handle discharge upgrades, there's a new kid on the block: The Discharge Appeal Review Board (DARB). The DARB was created by the National Defense Authorization Act of 2020, which was signed into law by Donald Trump on December 20, 2019, and is considered the final level of administrative review before the Department of Defense (DOD). Although the DARB is open to appeals from members of any branch of service, the United States Navy has been designated the branch that will oversee the new entity.
According to the DOD's press release, the DARB is an option to any service member who was discharged on or after December 20, 2019, to provide final review of discharge or dismissal characterization upgrade requests. Petitioners must have exhausted all available remedies before the discharge review boards and boards for correction of military records.
The new Board is considered a document review board without any opportunity for a personal appearance by service members. Additionally, the Board's review is limited to whatever documents were in the file at the board below. If a petitioner wishes to present new evidence, they must submit a reconsideration request to, and receive a decision from, the board for correction of military records before any such evidence will be considered by the DARB.
According to her LinkedIn profile, Martha "Martie" Soper has been appointed the first Deputy/Director of Operations for the new Board.
For more information, you can read the DOD press release here: https://www.defense.gov/Newsroom/Releases/Release/Article/2564345/dod-announces-new-discharge-appeal-review-board-option/
April 12, 2021 | Permalink | Comments (0)
Wednesday, February 24, 2021
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.
February 24, 2021 | Permalink | Comments (0)
Friday, January 22, 2021
NLSVCC Opposes VA's Proposed Amendments and Definitions Regarding Character of Discharge Determinations -- By Claudia Marina Velasquez (University of Florida Levin College of Law)
Generally, a veteran’s character of discharge must be categorized under other than dishonorable conditions to be eligible to receive VA benefits and services. A veteran is denied benefits if the reason for separation falls under one of the VA’s statutory or regulatory bars to benefit eligibility.
In early July, the VA proposed to amend its regulations regarding character of discharge determinations under 38 C.F.R. § 3.12. Specifically, the VA proposed to modify its framework for discharges considered “dishonorable” for benefit eligibility purposes and extend a “compelling circumstances” exception to certain regulatory bars. Members of the NLSVCC Government Affairs and Advocacy Committees collaborated to submit a comment addressing the VA’s use of the terms “moral turpitude” and “persistent” in the proposed regulation. The NLSVCC’s comment also addressed the VA’s consideration of mental health issues in adjudicating character of discharge. Committee members Robert Davis, Amy Kretkowski, Judy Clausen, Chad Lennon, Zachary Ross, and Claudia Marina Velasquez drafted the comment on behalf of the NLSVCC.
The VA proposed to define the “moral turpitude” bar as a “willful act that gravely violates accepted moral standards and would be expected to cause harm or loss to person or property.” The NLSVCC committee members argued that this broad definition should exclude misconduct adjudicated as minor during service. While the VA acknowledged that minor misconduct could not amount to moral turpitude, the NLSVCC committee members emphasized that the proposed definition failed to acknowledge the actual adjudication of an offense as minor and linked the evaluation to hypothetical punishments that were not used. The committee members noted that under the proposed rule, a veteran could accept a non-judicial punishment regarding an “unartfully plead offense” based on the representation that the misconduct would be treated as minor, but then have the VA misinterpret what actually occurred. By treating minor misconduct more strictly after service, the NLSVCC committee argued that veterans may be incentivized to challenge minor, easily-resolved offenses during service. This unintended effect threatens to waste the time of experienced advocates and adjudicators.
The VA also proposed to define “persistent” (which is not defined under the existing regulation) under the C.F.R. § 3.12(d) “willful and persistent misconduct” bar. The proposed regulation defined “persistent” as “ongoing over a period of time” or “recur[ring] on more than one occasion.” The NLSVCC committee argued that the proposed definition was overbroad. For example, a veteran who committed an act of minor misconduct more than a year after a completely distinct type of misconduct could be barred from receiving benefits, yet persistence is not shown by two unrelated acts of misconduct. NLSVCC’s comment also pointed out that the proposed definition also removed the discretionary authority to review a veteran’s disciplinary history that allows an adjudicator to determine whether a veteran’s misconduct was actually “persistent.”
Further, the NLSVCC committee cautioned that the list of mental health conditions under the proposed “compelling circumstances exception” for prolonged AWOL and three types of misconduct should not be exclusive. The proposed regulation listed certain mental impairments at the time of prolonged AWOL or misconduct that “will be considered,” but did not expressly state whether other diagnoses that are not listed would also be considered. The NLSVCC comment urged the VA to clarify whether or not the list was exclusive to prevent unnecessary confusion among its adjudicators and to ensure the quality and timely processing of veterans’ claims and appeals.
You can view the proposed comment and other comments submitted here:
Claudia Marina Velasquez is a 3L at the University of Florida Levin College of Law and a student clinician at UF’s Veterans and Servicemembers Legal Clinic.
January 22, 2021 | Permalink | Comments (0)
Sunday, December 20, 2020
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.
December 20, 2020 | Permalink | Comments (0)
Thursday, December 10, 2020
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.
December 10, 2020 | Permalink | Comments (0)
Saturday, December 5, 2020
NLSVCC Opposes VA's Proposed Amendment to Require that "Aggravation" be Permanent - by Jillian Berner (UIC John Marshall Law School)
Members of the NLSVCC Government Affairs and Advocacy Committees collaborated this fall to prepare a comment related to a proposed VA amendment of the regulatory definition of “aggravation.” VA’s proposed amendment would require a permanent increase in disability under 38 C.F.R. §§ 3.306 (aggravation of pre-service condition) and 3.310 (aggravation of service-connected condition), rather than “temporary” or “intermittent.” Committee members Judy A. Clausen, Robert R. Davis, Amy B. Kretkowski, Chad Lennon, Zachary D. Ross, and Claudia M. Velasquez drafted the comment.
The NLSVCC committee members argued that the change was driven only by VA’s reasoning that temporary and intermittent symptoms were “difficult and time-consuming” and would deny compensation to veterans whose loss of earning capacity might not be long-lasting, but still affects their livelihood and occupational functioning. The committee members wrote that the proposed change contradicted the framework and purpose of VA disability compensation, which is based on any impairment in earning capacity caused by service-connected disabilities. Further, the law doesn’t require a showing of permanent worsening, so the proposed change would improperly raise the hurdle for veterans to obtain compensation. The regulations allowing for convalescent, hospitalization, and ratings for unstabilized conditions also indicate contrary intent for the benefits scheme. They also wrote that the proposed rule didn’t account for the true nature of disabilities, which can ebb and flow. This is especially important for mental health conditions, but physical conditions may also be episodic, and many disability rating codes account for these fluctuations.
The NLSVCC comment also included a cautionary note that aggravation must be adjusted carefully, because no veteran could ever prove permanency—when is “permanency” achieved? Additionally, Social Security, workers’ compensation, and other disability contexts show that the VA is capable of identifying and rating symptoms of service-connected disabilities, even if they are not “permanent.” The VA insinuates that this change will improve efficiency and processing speed, but the committee members posited that the change would actually make adjudication more complicated and places a higher burden on the veteran.
You can review the proposed rule and other comments submitted here: https://www.federalregister.gov/documents/2020/09/11/2020-17672/aggravation-definition.
December 5, 2020 | Permalink | Comments (0)
Sunday, October 25, 2020
National Boot Camp: Crowdsourced Orientation for Veterans Clinics - by Jennifer Morrell (Widener University Delaware Law School)
This past August, law student interns and faculty from all over the country gathered to attend a virtual boot camp for clinics serving veterans. The goal of the program was to provide a unique onboarding experience to incoming veterans clinic interns, by pooling the expertise of the nation’s veterans law clinicians.
The boot camp offered a day-long live program, as well as an array of asynchronous programming. All sessions are now available on the website of the National Law School Veterans Clinic Consortium (NLSVCC), which hosted the event.
The live program kicked off with opening remarks by Chief Judge Margaret Bartley of the U.S. Court of Appeals for Veterans Claims (CAVC). Chief Judge Bartley shared that she interned with the first law school veterans clinic in the country at American University Washington College of Law in fall 1991 and spring 1992, where she handled both a Board of Veterans’ Appeals hearing as well as an appeal before the CAVC.
“I feel like I'm really lucky that I did right off the bat enjoy doing this area of law,” Chief Judge Bartley stated. “Not only is it enjoyable, but it’s very worthwhile in that we’re helping people who served the country and who really need our help.”
Chief Judge Bartley traced the origins of the CAVC with the 1988 passage of the Veterans’ Judicial Review Act and also discussed the most recent veterans legislation—the Appeals Modernization Act, which took effect in 2019. The Chief Judge stated that the new law has already led to two issues before the Court which will be decided by a three-judge panel. “It’s exciting,” she said, “a whole new area of veterans law—how to apply the AMA.”
The idea for the boot camp grew out of a meeting of veterans clinic faculty regarding best practices for remote supervision. Professor Hilary Wandler, Director of the Clinical Law Program and Veterans Advocacy Clinic of the University of Montana School of Law, spearheaded the organization of the event, with assistance from Yelena Duterte (Assistant Professor of Law and Director of the Veterans Legal Clinic at UIC John Marshall Law School), and other NLSVCC members. The idea was met with such enthusiastic support from the veterans clinic community that just three months from that initial brainstorming session, the event unfolded with nary a wrinkle.
The live program—held Friday, August 21, 2020—drew over 200 attendees. That date was voted on by event speakers and NLSVCC members and considered the best timeframe for coinciding with the start of fall semester at the various veterans clinics around the country.
Clinicians were invited to propose topics for both the synchronous and asynchronous sessions. The live boot camp offered six sessions, on topics such as cultural competency in representing veterans, service connection basics, and military discharge upgrades. A total of 11 asynchronous sessions—covering such topics as evidence gathering and CAVC practice—also are posted to the NLSVCC website.
Daniel Elsen, a 3L at the Alexander Blewett II School of Law Veterans Advocacy Clinic at the University of Montana, said the program provided him a broad overview of the process for advocating for veterans. “It is hard to imagine starting work in the VAC without the invaluable experience of boot camp,” he said.
Professor Wandler and fellow organizers were so pleased with the outcome of the boot camp and the feedback on the program that they plan to hold the boot camp annually. Based on participant feedback, the second annual boot camp likely will be split into two half days of programming and will allow for more breaks in between sessions.
For more information on NLSVCC and to access the boot camp materials, please visit nlsvcc.org.
October 25, 2020 | Permalink | Comments (0)
Monday, February 4, 2019
CAVC Seeks Comments on Proposed Rule Changes Relating to Late Filings
The Court of Appeals for Veterans Claims has announced a 30 day comment period soliciting input regarding proposed rule changes relating to the late filing of appeals in the court. The request can be found here: http://www.uscourts.cavc.gov/documents/MiscOrder04-19.pdf
February 4, 2019 | Permalink | Comments (0)
CAVC Issues Limited Remand to BVA in Skaar v. Wilkie
Last Friday, the Court of Appeals for Veterans Claims issued a limited remand to the Board of Veterans Appeals in the case of Skaar v. Wilkie. The case involves a proposed class action lawsuit on behalf of veterans who claim to have been injured as a result of participation in a clean-up operation following an airplane collision which resulted in four hydrogen bombs being dropped over Palomares, Spain in 1966. The plaintiff class is being represented by Yale Law School's Veterans Legal Clinic. The following comes from a press release about the decision issued by the Clinic:
"In a 6-3 ruling last Friday, the U.S. Court of Appeals for Veterans Claims (CAVC) ordered the Board of Veterans’ Appeals to address appellant Victor Skaar’s argument
that the VA used scientifically unsound methodology to deny his disability benefits claims based on exposure to ionizing radiation. CMSgt. Skaar (ret.) is the lead appellant in a proposed class action of approximately 1,600 veterans deployed in a 1966 clean-up operation after an airplane collision dropped four hydrogen bombs over Palomares, Spain.
The significance of Friday’s opinion was evident in the four different opinions issued by the nine-judge court. “[W]e are overruling more than 2 decades of Court caselaw and changing long established procedural norms,” wrote Judge Mary Schoelen in a concurring opinion. Yet the interim order was appropriate, Judge Schoelen explained, in part due to “the harm that could potentially befall a sizeable class of veterans” were the Court to proceed under its prior practices. “For more than 50 years the VA has denied that cleaning up the nuclear bomb disaster at Palomares impacted our health,” said Mr. Skaar. “I have fought a long battle to get to this point, and am gratified that this order recognizes that the VA was wrong to completely ignore my challenge to its broken system that continually ignored our existence and exposure.”
The CAVC’s order assigns error to the BVA for failing to address Mr. Skaar’s argument, and gives it only 30 days after he submits additional evidence to determine whether the VA’s dose estimate methodology uses “sound scientific evidence.” The case will then return to the CAVC for further briefing and a decision, including whether the Palomares veterans’ challenges against the VA will be resolved on a class basis."
A full copy of the Order can be found here: https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01205567021&caseId=95544&dktType=dktPublic
February 4, 2019 | Permalink | Comments (0)