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How VA Will Process Blue Water Navy Veterans’ Claims

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*Please note: this transcript has been added to reflect legally accurate language of H.R.299 – Blue Water Navy Vietnam Veterans Act of 2019.

Robert:  Good afternoon. This is Robert Chisholm, from Chisholm Chisholm and Kilpatrick. With me today is Brad Hennings and Courtney Ross and we’re here today to talk about Blue Water processing adjudication of claims.

Congress recently passed the law that now specifically says that veterans who served in the waters offshore of Vietnam, within 12 nautical miles from the line of demarcation are eligible to receive the same presumption of exposure to herbicides as veterans who stepped on the landmass of Vietnam. And what we’re going to talk about today is how VA is going to go about adjudicating or making decisions on those claims.

So Brad, maybe I could turn to you first and talk about these sort of two classes of claims; those veterans who haven’t filed yet and those veterans who have previously filed the claim and been denied. And as I understand it for the moment, at least until January 1st, none of these claims are going anywhere. They’ve been stayed. You want to talk a little bit about that?

Brad:  That’s correct. What happened with the passage of the Blue Water Navy Vietnam Veterans’ Act of 2019 is that there’s a provision in the legislation that allowed VA to take all those pending claims and sit on them ostensibly so they could get their act together to create the tools necessary to fairly adjudicate them. But what in essence has happened is no work has been done on these cases since the passage of the legislation. So, it’s frustrating for anyone waiting on one of those claims.

Robert:  So, for people who have filed the claim or in the appellate process, if you will, they’ve been denied and they’re on appeal. Those claims are all been stayed. And anyone who’s filed a claim since the new law went into effect, those claims have been parked for lack of a better word.

Brad:  Basically, no work has been done on any of those cases.

Robert:  Okay. So, one more point on this, let’s suppose there’s a veteran out there or surviving spouse of a veteran who served in the waters offshore Vietnam, and they wanted to file a claim, what should they do right now?

Brad:  What they should do if they think that this is applicable to them is that they should go ahead and file the claim, because it will get them in the queue that come January 1, VA will start processing all of these claims. But the most important thing, if you haven’t filed a claim or if you’ve even been previously denied, is to file– go ahead and file the claim.

Robert:  Okay. Courtney, I’d like to turn to you and talk a little bit about what this new law means in terms of the presumption and what veterans should expect in what similar to the prior law that extended the presumption to veterans who served in-country in Vietnam who set foot on the landmass of Vietnam.

Courtney:  Yes. So, as you alluded to before, this new law basically extends that same presumption that veterans who were boots on the ground in Vietnam have had for many years now. So, any of the conditions that are on VA’s list as presumptive conditions and have been previously extended to boots on the ground veterans, so this includes things like ischemic heart disease, prostate cancer, type 2 diabetes, any veterans who served within the 12 nautical miles, who didn’t previously have that presumption but have those conditions that are listed on VA’s list can now get service connection for or presumptive service connection for those conditions.

Robert:  So, this would, as I understand it, this would include any veteran who served on a Navy vessel that went within the 12 nautical mile limit of the landmass of Vietnam.

Courtney:  Correct. And that has to be between January 9th, 1962, and May 7th, 1975. So, it also has to be between that certain time period.

Robert:  Okay. And we don’t really know the number of veterans who this new law will benefit yet. Do we?

Courtney:  We don’t have an exact number but VA recently did indicate that they are sending out letters to upwards of 77,000 veterans who have previously filed claims for these types of conditions that now might have this presumption extended to them. So, we know at a minimum, it’s at least that number of veterans who it could apply to.

Robert:  Okay. So, it seems to me that one of the challenges is going to be for VA in making decisions on these claims is going to be, “How do I determine whether the vessel that this particular veteran who has filed a claim served on went within 12 nautical miles from the line of demarcation?”. So Brad, what do we know so far about how the VA is going to make that initial assessment to see whether they get the presumption under the new law.

Brad:  So, what VA said they are working on and one of the reasons they’ve argued, they needed to wait until January 2020, is that they’re working on new technology, what they call a blue water tool to help them make that determination as to where the veteran was during a particular time. And the way they’re doing that is they’ve created a digital tool that incorporates Navy deck logs, to pinpoint the locations of the naval vessels that were traveling within the 12 nautical miles from the line of demarcation of Vietnam and Cambodia. And so VA has asserted that it will be able to take care of the lion’s share of these claims and that it will enable fast decisions that will be able to so they’ll be able to be decided within a few weeks from start to finish. So that would be the first step would be trying to use this tool.

The next step if the tool cannot confirm exposure or confirm that they were within 12 nautical miles, they’re going to send it to what they call a records research team, who will attempt to manually figure it out whether they’re within 12 miles. And if that fails, and they can’t confirm they are within the 12 miles, they’re going to send it to the Joint Services Research Center, the JSRC, for additional records research.

Robert:  So one of the things that we heard at a recent briefing is that VA once the law passed, once this new law came into effect, VA went and obtained all the Navy deck logs some 22 million pages, scan those documents, and they’re using three points of time during the day to show in those deck logs where the different vessels were.  And I think I heard a number of 700 vessels that they have obtained data on. So, even if the boat just crosses into the line within the 12 nautical miles, it doesn’t have to be there for any length of time, as long as it goes within the 12 nautical miles, then the presumption will attach if the veteran was on the boat at that particular time, as I understand it. So it is a very broad-based presumption from that regard, if you can show that the ship you served on was within the 12 nautical miles from the line of demarcation.

Brad:  That’s a great point and the way it was described to us is even if it was five seconds as they pass through this tiny sliver of water that was within the 12 miles, the presumption would attach.

Robert:  And then you were talking about that if the Navy tool comes up negative, they’ll still– there are still really two more layers of information. Well, let’s suppose that that happens, they go through all three and they say, “No, we can’t show that your particular vessel was within the 12 nautical miles” but a veteran says, “I’m certain it was” what can they still do in that particular case?

Brad:  So, what a veteran should do in that particular case, if they’re sure of it, they should send in the information that they have.  For example, if they have testimony from themselves with lay evidence where they can say, “I know, the ship was within 12 miles because I could see the landmass” and you can only see the landmass when you’re a little bit closer or if you have any friends, relatives, buddies or if you’ve got any other kind of evidence that would support that claim. And it could be anything from newspaper articles to military records that perhaps VA did not obtain or did not know about, as well as statements from the veteran and any of his shipmates or her shipmates.

Robert:  Okay. So, Courtney, let me turn to you for the next question. And that is, we talked about if a veteran has not filed a claim yet, or if a veteran had previously filed a claim and been denied, can you talk about what forms they should use for those two situations?

Courtney:  Yes. So, it is two different forms depending on which situation. So if a veteran has previously filed for this and it’s been denied, they need to file the supplemental claim form, which is the VA Form 20-0995. That form will require them to also submit new and relevant evidence in support of the claim that they’re filing. So that could be something like the name of the vessel that they were on, perhaps a lay statement describing where the vessel traveled as Brad suggested.  It could be updated medical information that wasn’t previously in record when they previously filed for it. But with that form, they will need to have the new and relevant evidence.

If a veteran has never filed for one of these conditions before so this is the very first time that they’re filing for it, they’ll use the VA Form 526EZ, which does not require submission of new and relevant evidence.

Robert:  Okay. So, it’s an interesting question from a legal standpoint on a really high level here because this new law gives them a new benefit. So if they’ve previously been denied, do they actually have to submit new and relevant evidence? I know that’s what the supplemental claim generally is but is the statute itself an avenue for the new and relevant evidence?

Brad:  To me, it would seem that it’s more correct to say it’s a reconsideration of the claim and that the new and relevant evidence really shouldn’t be required. So, it will be very interesting to see how VA handles that because again, it seems to contemplate more of a reconsideration rather than a requirement of new and relevant evidence. However, VA has said you must file a claim, must file a form.

Robert:  Right. So, one of the things that happened for the veterans who served in-country in Vietnam on the landmass of Vietnam, if they had filed a claim for ischemic heart disease, let’s say, in 1995 and been denied when ischemic heart disease was then later added, the VA just re-adjudicated those.  They have taken the position under this new law that they do not have to re-adjudicate the claim. So, you actually have to go ahead and file a claim. And that’s why they’re requiring that these claims be filed as supplemental claims if they have been previously denied. So I’m not really sure, we’re not really sure what the answer is going to be here. We’re gonna have to wait and see how it actually plays out. One thing that we, sort of, are sure about is that if the claim is denied, we’re in the AMA world. So maybe Brad, you could talk a little bit about that. What are the appeal options if a veteran goes to this process and they’ve been denied?

Brad:  So, if a veterans is denied when they filed one of these claims, either a supplemental claim or a new claim, it will be under the Appeals Modernization Act, which means that the veteran will have three options to deal with that decision in terms of appeal. They can either file a supplemental claim with the addition of new and relevant evidence.  They can ask for higher-level review, which will be by a more experienced claims adjudicator who may take a look, particularly, if the veteran thinks the evidence is very clear, and that someone just dropped the ball or made a mistake.  Having someone else take a look at it will prove their case or they can file a notice of disagreement and send it to the Board of Veterans’ Appeals. And that’s typically an option where folks will send more complicated or complex cases because there’s attorneys and judges at the board of veterans appeals.

Robert:  So, we talked a little bit about the sort of Nehmer class of claims. I just gave an example of a Nehmer class of claims.  How will effective dates be handled with this?  And here, Courtney, we’re really talking about a veteran who previously filed for a claim that had been denied because VA was saying we don’t recognize an exposure to herbicides within the 12 nautical miles, but now they do. So, if I previously filed as a veteran say 15 years ago and have been denied say for lung cancer and my vessel is clearly within the 12 nautical miles, in that hypothetical, how’s the VA going to adjudicate that claim, assuming everything else meets their requirements?

Courtney:  Sure, and assuming you submit that supplemental claim to have them take another look. Your effective date when they grant it should go back to that original date that you filed that claim 15 years ago. VA said they’re going to adjudicate it on a case by case basis, but it should go back to that initial claim.

Robert:  And as Brad was saying, if that claim is denied, they should definitely take it either higher-level review, or go up to the board. I wouldn’t file a supplemental claim in that specific instance if the evidence is in the record that you’ve already filed a claim in the past.

Brad:  And I think it’s really important to note that in this new Blue Water Act, the legislation that passed that these favorable effective date provisions that go all the way back are actually in the statute itself.

Robert:  Correct.

Brad:  And so that’s really important because that’s a great tool for veterans and their advocates to utilize when making any kind of arguments.

Robert:  So, one of the things we talked about and want to go back to the tool that the VA is going to use it because it isn’t going to answer all questions. And so any veteran who served on a submarine, for example, we learned that a recent VA briefing, those claims will be handled differently. They will not– the deck logs or the logs that they kept on the submarines were not part of this 22 million pages that they scanned. So those are going to be handled, I’m assuming by a special research group as well, presumably.

Brad:  Yes. So there’s always been an issue for veterans’ claims when you’re dealing with classified records. And as we know, there’s a number of military records that are classified including the record where submarines where, when, or what they were doing. And VA does have a process for them to be able to review these classified records. They do have a few people who have the authority to do so. However, many of the regional offices are not frankly always good about following that procedure. So if you were on a classified mission in a submarine, if you were, if that’s affecting you somehow, it helps to remind VA that they do have a process for reviewing those records, but it’s outside of what this Blue Water Navy tool is going to be able to help with.

Robert:  And Courtney, one of the other things we learned at this briefing was that Marines on helicopters that might have landed on a ship within the 12 nautical miles and then had to take off again to go outside to a ship outside the 12 nautical miles that could be a potential pain-point, my words, for VA to challenge.

Courtney:  Exactly because that information is also not going to be part of this tool that they’re creating. So, veterans and advocates are going to have to look elsewhere for information and evidence to submit and to show that the helicopter landed on that ship and was within those 12 nautical miles.

Robert:  So, I think the important thing is the Navy tools not going to answer all questions. And in those situations where this tool does not answer all these questions that veterans are going to have to still obtain other evidence to win these claims. And as we said earlier, the deck log entries, we were told, they’re going to look at three times: 8 a.m., 12 p.m. and 8 p.m. So one could imagine that the ship between 8 a.m. and 12 p.m. could have gone in and out of that 12 nautical miles if it was within that particular range. So, again, lay evidence may be necessary that it’s just a statement from you that you were within 12 nautical miles, VA would have to consider that. So what do we know about the training that VA is done in preparation for this and do we know how many people are going to be using this Navy tool, we have a little bit of information on that, I think.

Brad:  So, we’ve been told that there will only be 50 people who have access to this tool, the Blue Water tool, plus 10 to 15, for quality assurance.

Robert:  So, nationwide handling– We think at around 77,000 minimum, we don’t know the full number–

Courtney:  Exactly.

Robert:  — will be handling all these claims, plugging this information into the tool and they’re saying that they’ll be able to turn these around in a few weeks.

Brad:  That’s what they’re saying. It’s obviously going to be a very specialized group because that’s a very low number of folks to have touching that tool considering how many claims processors VA has throughout the Veterans Benefits Administration. For example, they’re assigning 800 experienced claims processors trained to eight regional offices to handle these cases. And so think about that’s a subset of a larger group of claims processors and only 50 can use this tool.

Robert:  Right. And you made a really good point there that these claims are not going to be handled at every single regional office. There are eight specialized centers. And our understanding is those eight specialized centers previously had handled the Nehmer adjudication claims, so they have some specialized knowledge in this area.

Brad:  That’s certainly what VA has asserted that this will not be like you’re starting from scratch that these processors, these service representatives, VSR or veteran service representatives will have had experience and so they won’t be starting from scratch.

Robert:  Okay. So, why might a veteran be denied? I think we know the obvious answers but let’s talk about it.

Courtney:  Sure. So, obviously, one of the obvious answers is that the tool that VA uses in the records research team and goes through the process and it comes back VA’s unable to place the veteran within the 12 nautical miles. And so Brad kind of talked a little bit about this earlier in the presentation that there’s other ways that veterans can gather evidence to show that they were within the required space. So lay testimony from the veteran describing that they could see the landmass. You know, if you have friends that you served with that recall also seeing some other things that can help or provide statement in support of your case as well. Those kinds of things are what you’ll need to consider if VA comes back and says they can’t place you within 12 nautical miles.

Brad:  It’s also important to recognize that, besides just getting the evidence on your own, if you can identify military records or other kinds of evidence, perhaps there was something unusual that happened with your particular service on the ship. And so you think there was a record made of that something unusual that would show that your vessel was within the 12 nautical miles, you should ask VA to go and get those records because again, they’re using these deck logs, but there’s other records that are kept sometimes that would show where the ship was, and they’re not going to necessarily automatically get that unless you point it out to them and say please go get that.

Courtney:  Yeah, that’s a really good point.

Robert:  So, the last thing I want to talk about is the claims that were pending when the statute passed and the stay went into effect. So those claims could be at the regional office, those claims could be at the board, and a few actually might be in the court of appeals for veterans claims. Can we talk about what will happen to those claims come January 1, to the extent we know the answer to that? So this is a veteran who has already filed a claim and is waiting for decision and then the Secretary put the brakes on under the statute says, “Look, we’re going to stay these until we get everything ready and up and running.”

Brad:  So, I think there’s two things, in particular, good news and bad news. The good news is that the cases will start moving again. The bad news is that I certainly believe what’s going to happen at both the Court of Appeals for Veterans’ Claims and the Board of Veterans Appeals is that they will remand or send back these cases to the regional offices to use this new Blue Water tool and the new procedures to try to verify where that ship was. And because facts have to be found in the first instance at the agency, the courts not going to want to do it and neither the Board of Veterans’ Appeals.

Robert:  So, presumably, all these cases will then get filtered my word through this new tool, and hopefully, the veteran will be able to prove the case right then and there.

Brad:  That’s the hope. Again, my concern is that there will be considerable delay because you have an awful lot of cases in an untried, untested tool. These are untested procedures.  They’ve had time to put them together but until you really turn the switch on, nobody’s really sure how it’s going to work.

Robert:  The good news here, Courtney and Brad, is that the statute is passed that broadens the class of people that are now eligible for the VA presumption of exposure to Agent Orange and if they have those disabilities that are listed and we’ll have those up on the website on Facebook. If you have these conditions, you will automatically presume to get service connection at that point. At this point, we’re really not sure how this is all going to work. And we will be updating on Facebook as we learn more information, will be updating on the website as we learn more information. Unfortunately, Facebook was down and we’re pre-recording this, and we’ll be posting this later. So, we’re not able to take questions live today. But please send any questions to Facebook — on our Facebook page or our website and we will answer them to the best of our ability. Any final thoughts, Courtney?

Courtney:  Yes, I would just mention too, so as Robert just indicated the benefit of this new law is you’re presumed exposed herbicides and agent orange within the 12 nautical miles and so if you have any of the conditions that VA has already identified as presumptive conditions, you get service-connected. But keep in mind too if you served within the 12 nautical miles and there’s evidence to support that, you may have other conditions that aren’t on that list that you think are due to your exposure. You can also still get service connection for those, you now just need to provide the Medical Nexus piece of it. But now you still have the benefit of being presumed so the exposure is established.

Robert:  That’s a really good point. And I think it’s important for veterans to know that the presumption of the exposure could lead to service connection for conditions not on the list, but you need an outside medical opinion to support that that exposure to the herbicide led to that particular disability.

Courtney:  Exactly.

Robert:  Very good point. Thank you. Brad, any final thoughts from you?

Brad:  Just two quick things. One is, this is an untested and unfamiliar process for everyone including the VA. So, we strongly advise veterans and their dependents to seek out a VA accredited Veterans Service Organizations such as our partners and friends at DAV or a VA accredited attorney or agent to help them through the process of filing these claims and filing any appeals.  And number two, we’re hoping at some point to get our hands on a copy of the tool and maybe be able to provide some slides or some– would be great to get access to it, but at least some slides showing how the tool operates.

Robert:  We’re going to do our best to get some information about that. I know some people have had a demonstration already. And they were the people that I’ve spoken to said they were impressed with it but until we actually see it working, we’re really not sure how it’s going to go. Thank you for tuning in today. Again, this is Robert Chisholm from Chisholm Chisholm and Kilpatrick with Courtney Ross and Bradley Hennings.  And again, please reach out to us if you have any questions and we’ll be broadcasting more on this in the future as we learn more information after January 1. Thank you.

*Please note: this transcript has been added to reflect legally accurate language of H.R.299 – Blue Water Navy Vietnam Veterans Act of 2019.