Veterans Law Prof Blog

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

 

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

 

Federal Circuit Rules in Favor of Blue Water Veterans

In a decision issued this morning, the U.S. Court of Appeals for the Federal Circuit ruled that the presumption of service connection for certain diseases for veterans who served in Vietnam applies to so-called "blue water" veterans - those who served on ships in waterways off the coast of Vietnam, but did not set foot on land.  The case is Procopio v. Wilkie, 2017-1821, and the opinion can be found here - http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1821.Opinion.1-29-2019.pdf  The National  Law School Veterans Clinics Consortium (NLSVCC) filed an amicus brief in support of the appellant's position.

US Court of Appeals for Veterans Claims - Scholarship Competition

U.S. COURT OF APPEALS FOR VETERANS CLAIMS (CAVC) 14TH JUDICIAL CONFERENCE SCHOLARSHIP COMPETITION

 

The CAVC Bar Association is pleased to announce a scholarship competition for law student applicants to attend the CAVC’s 14th Judicial Conference. Selected scholarship recipients will receive paid registration ($290 value) and a travel stipend (up to $500 for those outside the Washington, DC metropolitan area).

This is a two-day conference to be held on April 11 and 12, 2019, at the National Press Club in Washington, D.C. Scholarship recipients will also receive free registration to the Bar Association's half-day component which will immediately follow in the afternoon on April 12.

The CAVC Judicial Conference, which is expected to sell out, is held every three years and is an important opportunity for veterans law practitioners in all sectors (e.g., government, private sector, non-profit) to discuss issues facing today’s veterans. The conference will include presentations from notable authorities in the field of veterans law. Past keynote speakers have included prior VA Secretaries and U.S. Supreme Court Justices. More information regarding the conference may be found at www.uscourts.cavc.gov.

Students are encouraged to consult with their law school to determine if additional funds are available to subsidize travel costs.

Eligibility and Entry Requirements:

To be eligible, applicants must be currently enrolled at an ABA accredited law school. To enter, applicants must submit a written submission (about two pages).

In your written submission, please identify your name and law school. Also describe any experience in veterans law or military service and state your personal interest in the field of veterans law or attending the conference. In so doing, we suggest you also discuss one of the following topics: (1) a challenge that the field faces or will face going forward, (2) a development in veterans law that interests you, or (3) the personal impact that you see yourself making in the field of veterans law.

Only one entry is permitted per applicant.

Entries must be transmitted via email for consideration to [email protected], with the email subject line “CAVC Judicial Conference Scholarship Application.” The deadline for all entries is Wednesday, February 20, 2019 at 11:59pm EST. The selected recipients will be notified on or after February 25, 2019, and will then be able to register free of charge for the two-day conference. (Registration deadline is March 1, 2019.) Good luck!

 

US Court of Appeals for Veterans Claims - Annual Conference

Save the date posting here - https://www.uscourts.cavc.gov/special.php?ann_id=95

 

Yelena Duarte to Head John Marshall's Veterans Legal Support Clinic

Chicago's John Marshall Law School (JMLS) has announced that Yelena Duarte will take over as Director of its Veterans Legal Support Clinic (VLSC) at the end of this academic year.  At present, Yelena serves as Director of Syracuse University's Wohl Family Veterans Legal Clinic.  The VLSC is one of the country's longest-standing and most successful veterans legal clinics, and Yelena joins a line of outstanding prior Directors including friends Joe Butler and Brian Clauss.  Congratulations to both Yelena and JMLS.

Institute for Law Teaching - Summer Conference - Call for Proposals

CALL FOR PRESENTATION PROPOSALS

 

Institute for Law Teaching and Learning Summer Conference

“Teaching Today’s Law Students”

June 3-5, 2019

Washburn University School of Law

Topeka, Kansas

 

The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law professors and administrators are reaching today’s law students.   With the ever-changing and heterogeneous nature of law students, this topic has taken on increased urgency for professors thinking about effective teaching strategies. 

 

The conference theme is intentionally broad and is designed to encompass a wide variety of topics – neuroscientific approaches to effective teaching; generational research about current law students; effective use of technology in the classroom; teaching first-generation college students; classroom behavior in the current political climate; academic approaches to less prepared students; fostering qualities such as growth mindset, resilience, and emotional intelligence in students; or techniques for providing effective formative feedback to students.

 

Accordingly, the Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. Each workshop should include materials that participants can use during the workshop and when they return to their campuses.  Presenters should model effective teaching methods by actively engaging the workshop participants.  The Institute Co-Directors are glad to work with anyone who would like advice on designing their presentations to be interactive.

 

To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:

• The title of the workshop;
• The name, address, telephone number, and email address of the presenter(s); and
• A summary of the contents of the workshop, including its goals and methods; and
• A description of the techniques the presenter will use to engage workshop participants and make the workshop interactive.

 

The proposal deadline is February 15, 2019.  Submit proposals via email to Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning, at [email protected].

SCOTUS Grants Cert. in Kisor v. Wilkie

The broad question involves whether federal courts must defer to agency interpretations of ambiguous regulations.  The case involves a veteran's attempt to reopen a denied VA benefits claim based upon new and material evidence.

Penn State Veterans Clinic Wins Disability, Large Back Pay Awards For PA, NJ Veterans

The Veterans and Servicemembers Legal Clinic at Penn State Law School has a number recent, impressive victories.  Read more about them here:

https://pennstatelaw.psu.edu/news/veterans-clinic-wins-disability-large-back-pay-awards-pa-nj-veterans

 

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.

Judge Certifies Class in Navy Discharge Upgrade case

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.  

Welcome Back Veterans Law Prof Blog

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.

 

Choosing to Medicate PTSD Instead of Direct Intervention

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/

New Policies and an Apology for Iraq Veterans Exposed to Chemical Weapons

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

Is Jon Stewart’s Comedy Central Show Impacting Policy at the Department of Veterans Affairs?

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

The VA Changes Its Rules – Filing a Claim

This week the Department of Veterans Affairs dramatically changed the rules for filing new claims and appealing decisions of the VA.   On March 24^th 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

The VA's Problem with Perception

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:

http://www.stripes.com/news/veterans/indiana-va-manager-s-email-mocks-veteran-suicides-1.333377

 

 

More Mental Health Discharge Concerns...

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

Why Employ a Veteran?

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  

More money problems at the VHA?

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?