- Government Shutdown
- Appeals Reform Implementation
- Supreme Court VA Cases
- Gray v. Wilkie – Blue Water Navy Veterans and the VA Manual
- Kisor v. Wilkie – Auer/Seminole Rock and the interpretation of regulations
Robert: Good Morning and welcome to CCK live on New Year’s Eve and I want to wish everyone a Happy New Year. My name is Robert Chisholm from the law firm of Chisholm Chisholm & Kilpatrick and with me today is Brad Hennings and Courtney Ross and we’re going to talk about the top three things affecting compensation benefits for the VA going into 2019. And it’s not going to be a long Facebook live today but if you have any questions please reach out to us on Facebook, also visit us at cck-law.com and we can always answer your questions after this is over. So, without further ado, I think the number one thing that is on everyone’s mind is not only affecting VA but affecting the government generally and that’s the government shutdown, Brad. So, what are your thoughts about the government shutdown and how it affects, if at all, VA?
Brad: Well, there’s good news and there’s bad news as it relates to the VA and veteran’s benefits. The good news is that the VA is fully funded and what that means is that all the VA employees are going about their regular business. It has not been shut down. So, at the hospitals and most importantly on the benefits side, everyone is processing claims, they’re paying benefits both on a continuing basis and a retroactive basis. So, it really should be somewhat seamless as it relates to the VA itself. There are some questions as to the Treasury because the Treasury is affected by the government shutdown, but we have not seen any issues relating to veterans and their benefits in our practice so far.
Robert: So, as far as we know our clients’ awards are being processed, clients who are currently receiving benefits are receiving benefits. So, that processes have not generally been affected as far as we know.
Brad: Correct. And in a bit of humor, I’m sure that the traffic in the Washington DC area is down for all those VA employees that are trying to commute in every day.
Robert: Okay. So, as I understand it, they’re fully funded for fiscal year 2019 and their fiscal year ends the end of September of 2019. So as far as we know, they should be okay until then.
Brad: That’s right no matter what else happens with these negotiations that are ongoing between the Congress and the president, VA is fully funded through the end of September 2019.
Robert: Okay. So, that’s topic one. I want to move on to topic two which is a big one for VA and that’s Appeals Reform. We believe that Appeals Reform will go into effect sometime mid-February, as we understand it, 2019 and that’s going to be a dramatic change in the way VA processes appeals. So, Courtney do you want to give a little background on the reason for Appeals Reform that we can talk about some of the challenges and some of the hopes of this?
Courtney: So, Congress passed Appeals Reform back in August 2017 and as Robert said it’s scheduled to take effect we think in mid-February of 2019. The intent behind the law was to make the procedural process and how VA is able to adjudicate claims a bit more efficient and help claims move through the system a lot quicker than they do now. Because VA has a lot of claims and they’re currently backlogged in the current system. So, while that’s the intent behind the law I think that us as advocates do have some concerns about how it will work once it’s actually implemented. It drastically changes the procedural process. So, under the current system, there’s one path that all appeals take. Under the new system once it goes into effect when a veteran receives a rating decision and they want to appeal it there’ll be three different options that they can choose for moving forward with their appeal.
Robert: So, if I can stop you right here. Under the current system what they’re now going to be calling the Legacy appeals, that’s what they’ve been renamed. There is a backlog of those cases presently and depending on what information you look at that backlog could be anywhere from like 350,000 to maybe 450,000 appeals that are pending in that system. And it was basically a two-step appeal process to get the case through to the Board. But under Appeals Reform and once that goes into effect, once a veteran receives a rating decision, let’s say it goes into effect on February 14, 2019, if the veteran receives a decision on March 1, 2019, they won’t have the option to go into legacy. Their only option will be this new three-lane process.
Courtney: Correct. Yes.
Robert: And so, how does a veteran decide which lane to go into?
Courtney: So, there’s three different lanes and as a veteran or an advocate representing a veteran, you want to carefully consider where your case is at in determining which lane is best. So, the higher-level review lane is one option. In this lane, once you select and opt into that lane, you’re not able to submit any additional evidence. Also, the duty to assist no longer applies in that lane. So, you really want to only submit cases into that lane if you consider it fully developed already and you’ve done all the work that you want to do and you think VA is ready or VA should be ready to make decision on this case. Then, you have the supplemental claim lane that you can opt into as well. In this lane, you can submit additional evidence in a veteran’s case. New and relevant evidence, and at that point the VA will make a decision and again it’s somebody within the regional office that’s still making that decision in the higher-level review lane and the supplemental claim lane. The third lane option is what we call the Board lane. In this lane, the case will go from the time that you submit into that lane, it goes directly to the Board of Veterans’ Appeals. So, no one at the regional office will be responsible for making a decision in that lane and you have to make things more complicated if you select the Board lane. You have three different options that you can choose in the Board lane itself. There’s an evidence lane that will allow you to submit additional evidence to the Board before the Board makes their decision. There’s a hearing lane where you can select a hearing and again submit additional evidence or there’s a docket lane in which your case will be docketed and you cannot submit any additional evidence once you opt into that way.
Robert: So, it does sound complicated.
Robert: And people are going to have to be very selective about which lane they go into, why they go into particular lane, and we really don’t know at this time how this is all going to work out because Brad, one of the things that Appeals Reform promises is that the new rating decisions made will inform the veteran of what piece of evidence is missing in order to win the claim.
Brad: That’s right.
Robert: And if they say for example, you’re missing a medical opinion that says that your asthma is related to your service for example, you would want to go into supplemental claim, for example.
Brad: And what we’ve seen so far they’ve begun some pilot programs, the VA has to implement Appeals Reform prior to the full implementation, it’s what’s called the Rapid Appeals Management Program project and we’ve seen some rating decisions that have come out of that, that are designed to apply the new statute and the new regulations that have yet to be approved and the rating decisions we’re seeing some of them are less than consistent with the statute, we believe. So, we have some concerns about the format of those decisions.
Robert: And whether that notification if you will, will fully inform a veteran of the reason the case was denied.
Brad: Exactly. From our perspective, the Appeals Reform was sold as a way to simplify everything, make things faster and to not hide the ball from the veteran meaning that if the duty to assist will no longer apply after an initial rating decision, the VA will then tell the veteran here’s what you’re missing, here’s where you can go get this kind of evidence, here’s what we have already found that’s favorable to your claim to make it really easy. It’s designed to be easier for the veteran to win their claims.
Robert: One of the things I do like about the Appeals Reform is that it’s no longer two-step process to get to the Board. You would file directly into the Board lane without having to file the second level of appeals. So in that sense I think, the cases will move faster and if I understand correctly, if you go into the Board lane and you don’t submit any additional evidence and you don’t request a hearing, they’re promising for lack of a better word to make a decision within a year, and that’s a lot faster than the Legacy appeals where you generally take 2-3 years to get a decision from the Board.
So, welcome again. This is Chisholm Chisholm & Kilpatrick. We’re live talking about the three top issues facing VA on the compensation and benefits side for 2019. If you have any questions, please reach out to us on Facebook and we’ll try to answer your questions or reach out to us later at cck–law.com and we can also try and answer your questions. Anything else that we want to cover in Appeals Reform at the moment?
Courtney: I would just mention that — so now Legacy, veterans can submit evidence really all the way up to the date of a Board decision and that’s going to be different in Appeals Reform once you opt a case into a specific Board lane. So, I think that’ll be really important for veterans and advocates to pay close attention to because that’s really different from what we can do now.
Robert: And I think that’s a really good point because you want to submit the evidence in support of your claim as early in the process as possible and that’s really a big game changer I think for Appeals Reform that how VA adjudicates these claims going forward. Okay, the last big area and really kind of a shocking development I think is that the Supreme Court is going to decide two cases from the VA world. The Gray case and the Kisor case and since judicial appeals were first implemented with the VJRE, The Veteran’s Judicial Review Act of 1988, I think there’s only been four cases since 1988 and this past term, this current Supreme Court term, they took two cases. So, that’s shocking for us that are involved in this world in a good way. So, the first case Brad is the Gray case, and Gray involves a Vietnam era veteran who served in the waters offshore Vietnam but whose naval vessel went into one of the inner harbors I believe it was Danang if I’m not mistaken and what’s the issue there?
Brad: So, the issue is that the VA made a determination in its M21-1 Manual saying that the harbor did not meet the test for what they call an inland waterway. There’s a difference between being boots on the ground or in an inland waterway which is what they call the Brown Water which are the rivers within the landmass of Vietnam and then what they call the Blue Water veterans who are the veterans who served in the Navy out in the ocean. Now, there was at one point some question as to whether the bays and harbors of Vietnam whether they were included in the presumption. So, the VA changed or adjusted their interpretation in their M21-1 Manual and said no, these harbors are explicitly excluded and then explained why. So, someone challenged this decision directly to the US Court of Appeals for the Federal Circuit and said that’s incorrect that the VA doesn’t have the power to do that through its M21-1 Manual. It should have done it through what they call note notice and comment rule making, rule regulation, and the Federal Circuit held that it lacked jurisdiction which means that it said we don’t have any power to decide this question. We can’t review these VA interpretive rules because they were in the M21.
Robert: And this is a big deal in the sense that first of all, we’re talking about the Agent Orange presumption in this particular case, but if the VA changes its interpretation of something through the M21 provision it can do it on the fly day-to-day so to speak.
Brad: Right, in real time.
Robert: And if they do it through a regulation, a person can go directly challenge that in the Federal Circuit and doesn’t have to go through the entire appellate process. It’s like an express lane if you are.
Robert: So, if they make a bad rule for veterans and that’s what we think this is in essence, if we’re being frank, the federal circus says no we can’t touch that. That’s beyond our purview.
Brad: And the reason that, that’s a big issue is because if that’s the case and the Federal Circuit and the VA are right, they can engage in all sorts of rulemaking through the M21 that it would be impossible to challenge except for years down the road with lots of litigation. And so, this is incredibly important to be able to determine what those M21 rules are and whether they can be challenged depending on what they do directly at the Federal Circuit.
Robert: And so that’s the first case that the Supreme Court took from the Federal Circuit. The second case is a case called Kisor and in Kisor the veterans asking first earlier effective date for his claim for benefits. The VA awarded this date and the veteran said nope I wanted to go back to a date further back in time and that involved the interpretation of a regulation. But it’s bigger than that because in this particular case, the Federal Circuit said, look the way we see it is both the veteran’s argument as to what the regulation means and the VA’s interpretation of what the regulation means are sort of at equal weight. But we’re going to defer to the VA because that’s what this case called Auer, that’s A-U-E-R, tells us to do. And so, it’s a deference question. Should the VA, should the court defer to the VA’s interpretation? And so that’s the overview why is this important?
Brad: So, the reason this is important is because the Auer case which Robert mentioned along with another case called Seminole Rock are seminole cases in administrative law and when we say administrative law we’re not talking about just the VA, we’re talking about all the federal agencies that exist out there The EPA, The Department of the Treasury, The Department of Transportation, Department of Labor, just to give you an example. And so, this Auer or Seminole Rock deference applies to all the agencies. So, if they write something that’s ambiguous the courts will defer to the agency’s interpretation. The problem with that is, the argument is, that if you get to choose — if you get to change — I’m sorry, if the courts always defer to the agency’s interpretation, the agency could just change its interpretation to suit its needs whenever the regulation is challenged. In fact, it could incentivize the agencies to write ambiguous regulations so that they can decide as on a case-by-case basis what they need. This is a big deal because it would affect potentially the entire federal government. It’s also a big deal because the U.S. Supreme Court does not have to take cases. It gets to choose what cases it takes from year to year and it typically takes very few cases. It decided to take this case on this explicit question of whether this Auer/Seminole Rock deference should be overturned. And we think given the current makeup of the Supreme Court and the fact they took this case in the veterans context that it’s very possible they will overturn this, which would affect not just VA, but the entire federal government.
Robert: I guess there is a way for the Supreme Court in Kisor just to limit if it wants to get rid of Auer deference to the VA world and that deals with a specific canon of construction that basically says if the two interpretations are equal the benefit of the doubt, if you will, should go to the VA. I don’t know how this thing’s going to turn out but as you say it seems likely that they’re going to hit this issue head-on and potentially overturn what has been sort of the last 30 years, this Auer deference in the VA world that would be a big game changer for how VA’s regulations are interpreted.
Brad: And it’s also gotten a lot of attention, the Kisor case has gotten a lot of attention from many other folks who have submitted briefs on behalf of Mr. Kisor, including people like the Chamber of Commerce and all sorts of other interested parties who are interested in getting rid of this Auer/Seminole Rock deference. So, it’s a veteran’s case but with much wider applicability than usual.
Robert: Do we have any questions, Wren? Okay, no questions. So, any final comments before we finish up? Okay, so thank you all for joining us here at cck-law.com. We wish you all a happy 2019 and we’ll be having our regular 2019 Facebook live going forward starting next week.