The White House has released its proposed budget for fiscal year 2019 and calls for an annual budget of nearly $200 billion for the Department of Veterans Affairs. The budget increases spending on numerous veteran programs, including mental health for veterans, caregiver programs, and health care for women veterans. The proposed budget also includes multiple new legislative proposals. These are the proposals that could have the biggest impact on veterans’ disability benefit claims.
Clarifying how much evidence is needed for VA to order a C&P Examination
According to VA statute 38 U.S.C. § 5103A, the VA has a duty to provide or obtain an examination “when such an examination or opinion is necessary to make a decision on the claim.” VA’s legislative proposal seeks to raise the “evidentiary threshold” – the amount of evidence a veteran is required to submit before the VA will order an examination and/or opinion. Under the proposal, the VA will only have the duty to obtain an examination when there is “existence of objective evidence of an in-service injury, or disease [.]” The requirement of “objective evidence,” while not defined, will make it much harder for veterans to obtain exams to help them with their claims for benefits.
The proposal will have the biggest impact on veterans who have limited evidence of the in-service injury or event that caused their disability. For example, veterans with claims related to Military Sexual Trauma (MST) do not always report these events in service and, as a result, many do not have documented evidence of the events. Thus, the proposed legislation would make it very difficult for MST survivors to obtain a VA examination, which could be critical to their claim because they already have limited evidence.
If enacted, this proposal would have an equally negative impact on many other types of claims as well, even including service connection claims for combat-related disabilities where, due to the circumstances of combat, the injury is never recorded. This policy proposal narrows the requirements for when the VA must order an exam to assist in a veteran’s claim and will result in premature denials for injuries that are not explicitly noted in service records.
Clarifying Chemicals at Issue for Purposes of Presumptive Service Connection for Veterans Serving in the Republic of Vietnam
The VA currently concedes that all veterans who served with “boots on the ground” in Vietnam were exposed to toxic herbicides such as Agent Orange, along with veterans who served in the inland waters of Vietnam. In addition to service in Vietnam, the VA has acknowledged that some veterans who served at certain Air Force bases in Thailand were also exposed to Agent Orange during the Vietnam Era. VA would also concede exposure to herbicide agents on a factual basis IF a veteran who served in any other location could show objective evidence of exposure at such location.
The VA’s proposal would change the definition of what constitutes an herbicide agent. The current definition includes all primary chemical agents in herbicides used in Vietnam: specifically, 2,4-D; 2,4,5-T (and its contaminant TCDD); picloram; and, cacodylic acid. These agents, or a combination of them, made up Agents Orange, Blue, White, Purple, Pink, and Green (all used in Vietnam). If enacted, the proposal would limit the definition of an herbicide exclusively to TCDD, the dioxin contaminant found in Agent Orange, ignoring the other harmful chemical agents involved. VA further states in its proposal its incorrect belief that TCDD was not used in herbicides “on bases outside of Vietnam.” Therein lies VA’s intent, to limit herbicide agent exposure to those veterans who served with boots on the ground in Vietnam.
The proposal would have a detrimental impact on veterans who served in many other locations where herbicide agents are currently known to have been used, such as Thailand. If the VA succeeds in convincing Congress to narrow the definition of herbicide agent, veterans who served outside of Vietnam will have an increasingly difficult battle to get benefits for conditions linked to herbicide exposure.
Decisions of the Board – Reasons and Bases
The VA proposes to change the current definition of “reasons and bases” in decisions issued by the Board of Veterans’ Appeals (known as the Board, or BVA). The proposal seeks to simplify the requirements of the Board’s decision in order to make them more understandable to veterans. However, this would result in shorter and less-detailed explanations for denials from the Board, resulting in more questions than answers.
This proposal would also restrict the ability for veterans and their representatives to appeal inadequate Board denials to the Court of Appeals for Veterans Claims (known as the Court, or CAVC). Currently, veterans and advocates are able to appeal Board decisions to the Court if they do not provide adequate reasons and bases for their decision, giving veterans the ability to continue their claims and fight for more favorable decisions from the Board. If enacted, this proposal would make it harder for veterans to appeal Board denials that they feel to be inadequate and wrong. Simply put, this proposal benefits the Board, and only the Board, by allowing it to issue denials with less explanation for the denial while simultaneously shielding itself from judicial review of the less informative explanation.
Ending Accreditation of VA Claims Agents
Currently, the VA allows individuals who are not attorneys to be accredited as VA Claims Agents, giving them the ability to advocate for veterans without having to be an attorney. The VA proposal seeks to eliminate accredited claims agents altogether, restricting representation to only attorneys who are credentialed to practice with the VA. The VA’s proposal to eliminate claims agents would also eliminate the effective, lower-cost legal help they provide for veterans. VA’s Budget Submission otherwise provides no explanation at all for this proposal.
The VA’s legislative proposals would restrict veterans’ claims and appellate opportunities and limit the ability of veteran advocates to fight for their clients’ benefits. As a non-adversarial body, the VA should have the welfare of veterans as the cornerstone of every policy it recommends and work to simplify the system to the advantage veterans.
There are many other proposals in the Budget Submission, which can be found here. CCK encourages you to read them!