VA’s Implementation Plan for Blue Water Veterans’ Claims: What We Know So Far
VA officials have offered new details regarding how they plan to prepare for and process veterans’ claims covered under the Blue Water Navy Vietnam Veterans Act of 2019. At a recent Disability Assistance & Memorial Affairs House Subcommittee hearing entitled “Preparing for Blue Water Claims,” members of Congress heard testimony about VA’s implementation plan for the Blue Water legislation from Willie Clark, VBA Under Secretary of Field Operations and Beth Murphy, VBA Director of Compensation Service.
What Provisions are in the Blue Water Navy Bill?
The Blue Water Navy Vietnam Veterans Act of 2019 contains many provisions that VA must implement as a result of this act by Congress:
- VA must extend the presumption of herbicide exposure to veterans who served in the territorial waters of Vietnam, meaning within 12 nautical miles seaward of the demarcation line. These veterans will be afforded the same presumption of exposure as those who served with “boots on the ground” in Vietnam.
- VA must also extend the presumption of exposure to veterans who served near the Korean DMZ from September 1, 1967 to August 31, 1971.
- VA is required to identify military bases in Thailand where Agent Orange or other herbicides were sprayed within 180 days of the bill’s enactment.
- VA is also required to extend benefits to the children of veterans exposed to herbicides in Thailand born with spina bifida.
How VA is Preparing for Blue Water Claims
Shortly after this legislation was signed by the President, VA Secretary Wilkie announced a stay on adjudication of Blue Water Navy Veterans’ claims in order to prepare for the anticipated influx. At the hearing, we learned how VA is preparing for the law’s implementation.
Development of Blue Water Tool
VA is developing a digital tool that incorporates Navy deck logs to pinpoint the locations of U.S. Naval vessels traveling within 12 nautical miles seaward of the demarcation line of Vietnam during the presumptive time frame. VA intends to scan about 28 million Navy deck logs into the tool prior to its launch (within VA) in December 2019, where testing will follow. As of the date of the hearing, VA had scanned 4 million of these records, at a rate of 1 million per day, and claimed that the tool is currently operational.
VA says this tool will be able to address the “lions share” of Blue Water claims. VA estimates the Blue Water claims decision process will take a few weeks “from start to finish” if sufficient evidence placing the veteran within 12 nautical miles is available using this tool, drastically reducing the time veterans would otherwise wait for a decision. Succinctly put, if this new tool confirms that a veteran’s service brought them within 12 nautical miles seaward of the demarcation line, and the veteran has medical evidence of a diagnosed presumptive condition, VA will grant service connection.
For claims that are not easily determined using this new tool, VA has set in place operating procedures that devote particular groups of claims processors to further develop the Veteran’s claim, as part of its Duty to Assist. In this situation, the veteran will also be notified of the kinds of evidence, such as lay statements, they can submit to help prove their claim.
As some Blue Water claims may be complex, with decades of retroactive benefits and a constantly changing disability picture, VA plans to adjust some productivity standards. VA raters working on complex Blue Water claims will not be held to the same productivity standards as those using the new tool, allowing for more accurate decisions. Also in an effort to “get it right the first time” with Blue Water claims, VA will establish a quality review process for decisions as they begin to grant benefits.
Preparation, Training, and Hiring for Blue Water Claims
VA will begin processing claims for Blue Water Navy veterans at eight specific Regional Offices (ROs). While the exact locations have not yet been announced, VA states that 800 claims processors at these ROs are already experienced in handling complex Agent Orange-related claims involving retroactive benefits and staged ratings.
VA plans to conduct mandatory trainings with these claims processors about Blue Water claims in particular during the first two weeks of December 2019. In addition to further training for experienced claims processors, VA plans to hire 800 new staff members to backfill any gaps left by shifting the focus of these eight Regional Offices.
Blue Water Veteran Outreach
To reach affected Veterans, VA will first send outreach notices to 77,000 previously denied Blue Water Veterans or their surviving dependents informing them of their ability to file a Supplemental Claim. These letters will include VA Form 20-0995, Decision Review Request: Supplemental Claim with instructions for filing.
Additionally, outreach to VSOs who assist veterans in filing and appealing claims is included VA’s plan to disseminate information about the process. Local town hall meetings, press releases, and online resources are other methods by which VA plans to communicate the changes in law.
Lawmaker and VSO Concerns
As with any Veteran-related legislation, lawmakers and Veterans Service Organizations are closely watching VA’s rollout and implementation of the Blue Water Act and have no shortage of concerns.
Forms for Previously Denied Blue Water Veterans
A major topic of discussion throughout the hearing was the claims of Blue Water Veterans that were previously denied. These Veterans are required to complete a Supplemental Claim form in order to reopen their VA claim, whereas new Blue Water applications must be filled out using VA Form 21-526EZ: Application for Disability Compensation and Related Compensation Benefits.
Lawmakers and advocates are concerned that this rule may cause confusion among Veterans and further delay claims for those who have already waited decades for benefits to which they are entitled. This requirement results in the burden falling back onto the veteran to determine which claim form to use and how to refile, lawmakers said. If a veteran were to file using the wrong form, their effective date could be in jeopardy.
Concerns About VA’s Blue Water Tool
Lawmakers and advocates had many questions for VA regarding its Blue Water tool following its testimony before the committee. Many present at the hearing said that details surrounding VA’s preparation is entirely new information, despite regular briefings with the agency.
One of the main concerns advocates have with VA’s new tool involves submarine records and other classified records. The tool will not include submarine records upon launch. Many submarine records remain classified from the Vietnam-era, which worries advocates because the tool will not be able to place certain Veterans within the 12 nautical mile radius established by the law. Advocates were similarly concerned with records lost in the National Personnel Records Fire in 1973.
In response, VA officials stated that the Department was working to get submarine records into the tool. These officials said that submarine records and other lost records will be treated differently, with additional development attempting to reconstruct the records to the extent that they can. These Veterans may be subject to submitting additional lay testimony to support their claims.
Does the tool include enough data?
VA’s new tool uses deck log coordinates to determine whether a Veteran traveled within 12 nautical miles seaward of the demarcation line of Vietnam. VA states that its tool will only incorporate deck log entries from 8am, 12pm, and 8pm. Lawmakers and advocates worry that this is not enough data and deserving Veterans may experience difficulty establishing service connection if their vessel traveled within the 12-mile zone outside these times of day.
Can Veterans’ Advocates Access the Tool?
The National Organization of Veterans Advocates (NOVA) expressed concerns about the tool, and how it can further benefit veterans. NOVA believes that those representing veteran claimants should be allowed access to VA’s tool in order to best serve their veteran clients. VA offered no further information as to who would be allowed access.
Will the tool be used to deny veterans?
One final concern about this new tool is whether the veteran will be denied if the tool does not corroborate service within 12 nautical miles. VA stated at the hearing that the tool will not be used to deny veterans claims. If the tool does not place the veteran within 12 nautical miles, additional development will take place.
Stay on Blue Water Navy Claims & Korean DMZ Veterans
VA is not adjudicating any Blue Water Navy Veterans’ claims until the stay is lifted in January 2020, even if enough evidence is currently of record to grant benefits. In fact, VA employees will not be trained to adjudicate Blue Water claims until a month before the stay is lifted. VSOs took the stance that VA should lift or modify the stay on these claims, especially for those veterans with terminal illness, financial hardship, or facing homelessness.
The stay also impacts veterans who served near the Korean DMZ. While VA officials said these claims are still being adjudicated while the stay is in place, lawmakers cited a directive from Sec. Wilkie to the Under Secretary for Benefits ordering that these claims be stayed as well.
Communication with Stakeholders
Each of the VSOs testifying before the committee believe VA is not being transparent with its plans for Blue Water implementation. The Disabled American Veterans and NOVA testified that VA has shared little to no details about the plan, in contrast to the open communication and collaboration while implementing the Appeals Modernization Act.
Identifying Thailand Military Bases
As part of the Blue Water Act, VA must identify the military bases at which Agent Orange or other herbicides were sprayed within 180 days of the law’s enactment. This information could benefit thousands of veterans who served in Thailand and do not qualify under the current presumption of exposure. VA could offer no updates as to the progress of identifying these bases.
Will VA Be Ready to Implement the Blue Water Navy Vietnam Veterans Act?
VA assured lawmakers and other stakeholders that it will be ready to accurately adjudicate Blue Water claims on January 1, 2020. The department’s goal for reviewing these claims remains at 125 days, similar to the goal set for all other claims under the Appeals Modernization Act.
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