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New Laws for Veterans and Servicemembers in 2022: NDAA

New Laws for Veterans and Servicemembers in 2022: NDAA

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Maura Black: Hi everyone. Thank you so much for tuning in to today’s CCK live discussion. We are recording this on our podcast, the Veterans Legal Lowdown. Thank you for tuning in.

Today, we’re discussing new laws for veterans in 2022, specifically through the National Defense Authorization Act, or the NDAA. I’m joined today by Bethany Cook and Kayla D’Onofrio. Kayla and Bethany are accredited VA claims agents that work at Chisholm Chisholm & Kilpatrick. I’m a managing attorney at the firm, and the three of us really particularly enjoy this topic. We were just talking about how we like presenting on this because we get to talk about new initiatives or continuing initiatives that are committed through government spending. And, it really is a good encapsulation of what the government’s objectives are, I think, in order to help veterans and to help service members.

Topics with a lot of lofty goals, a lot of promise, we’re certainly not thinking that all of them are going to be achieved or met. Anyone with VA experience knows that that is not always the case. But we are excited to talk about the things that are on the docket for this coming year.

Just before we get started with the specifics, the NDAA, for those of you who are not aware, as I said before, is the National Defense Authorization Act. It is a defense spending bill that goes through Congress every year. It was signed this last December by President Biden. This year’s bill authorizes about 770 billion dollars worth of spending for the military. We’ve got some specific initiatives that the government has announced and specific acts that have come from this bill and from the spending authorization. And, we’ve got it broken down through veteran-specific initiatives and service member-specific initiatives.

We’re first going to talk about reforms that affect veterans, and then we’re going to move on to reforms that will affect current service members. And then, just an overview of what the different provisions are that we’re going to be discussing today. The act this year includes several provisions that will greatly benefit veterans and their service members. That includes some pay increases, especially for service members, reform measures surrounding burn pits and other toxic chemicals; increased research and improved treatment for specific types of cancer, such as prostate cancer and breast cancer care and awareness; military sexual assault reform; and other items.

We are going to skim through the ones that we thought were the most pertinent. There’s a lot to this act. I believe that it will be linked to the blog that’s associated with today’s presentation. So, if you want to sift through any particular provision with any degree of specificity that we’re not able to get into today, please feel free to do that by reading the actual text of the act. But I’m going to first start with Kayla to talk about a few items related to sexual assault reform and also burn pits, which is an issue that we’ve talked a lot about on our videos and our podcast and our blog. Kayla, can you please take it away with the first couple of items for us?

Kayla D’Onofrio: Sure. The first one I’m going to talk about is the sexual assault reform. I think this is a topic that is something that we care about greatly and we do want to see a lot of reform happening on how these are handled. The provision in the bill will revamp how sexual assaults are prosecuted in the military. Specifically, Congress is creating prosecutor positions which they’re calling Special Trial Counsel. They’ll be handling cases of sexual assault and related crimes as well as murder, manslaughter, and kidnapping.

What this means is that they’re going to be taking military commanders out of the role where they are handling these sorts of crimes and instead, they’re going to be putting in these, hopefully, more objective third parties to be prosecuting these crimes in a more fair manner. The bill is also making sexual harassment its own offense under the uniform code of military justice. Again, just kind of allowing a legal authority to penalize or punish service members who are committing even these more minor harassment crimes versus the assault crimes, still giving a legal basis to punish them.

The other one that I’m going to be talking about are the burn pit bills that are included within the NDAA for 2022. Like Maura said, this is one that we have discussed in great length before. Burn pits are something that we are still continuing to keep an eye on as we continue to handle these cases. There are a couple of bills that are included within the reform that are supposed to be making a total reform to the military’s use of burn pits. The first is the Department of Defense Burn Pits Health Provider Training Act. What this means is that they’re going to be providing medical providers within the Department of Defense mandatory training with respect to the potential health effects of burn pits, to being able to better understand the risks and potential side effects that being exposed to burn pits might have on service members and veterans, both long term and short term.

The other is the Burn Pit Registry Expansion Act. This bill will expand the scope of airborne hazards and open burn pit registry at the Department of Veterans Affairs, which includes burn pits located in Egypt and Syria under the definition of open burn pits. This registry is what allows veterans to basically document that they were exposed and report any health concerns that they have related to that exposure to burn pits, and hopefully allow a wider range of veterans to have that recognition under the law to help them when they are filling these burn pit related claims down the line.

Maura: Great. Thanks, Kayla. Again, we are following the different burn pit legislation items that have been swirling around for some time now. But nice to know that they are thinking about different ways to track persons that have said that they were exposed to burn pits. Among other issues with this area is the government’s reticence to acknowledge or concede that as many service members who say they were exposed to burn pits actually were. So, that’s an important initiative among other things that are encompassed by that part of the bill. So, thanks, Kayla. Bethany, I want to switch over to you to talk about health care modernization and some IT or information technology reform items that are encompassed in the NDAA for this year.

Bethany Cook: VA has been working on modernizing its health record storage for a long time now and it hasn’t been a smooth process. One part of the NDAA is specifically included because senators want more transparency from the Department of Veterans Affairs about its massive electronic health record modernization program, which has been underway for, I think by now, a couple years. Given that the process hasn’t been going as quickly or as smoothly as it was supposed to, measures in the new legislation are designed to give Congress regular updates about the cost and schedule for the electronic health record that VA has been trying to implement.

Specifically, Congress is looking for an end to a string of poor audit reports on VA’s EHR that they’ve been receiving in the past. Auditors have also found VA previously underreported costs for the project by as much as five billion dollars. So, Congress is looking for more transparency from the VA about cost moving forward as well as its schedule being fully implemented.

The other part, more generally, is regarding Information Technology reform. This part of the NDAA was passed as the Department of Veterans Affairs Information Technology Reform Act of 2021. This bipartisan legislation aims to increase transparency and accountability through congressional oversight into proposed and current information technology systems and management at the VA. So, as part of that, the Senate Veterans Affairs committee advanced Mr. Kurt DelBene to serve as VA’s Assistant Secretary for Information and Technology, a position which is going to be responsible for delivering adaptable, secure, and cost-effective technology services to the VA employees and veterans. And hopefully, this helps kind of more generally modernize VA’s systems as they have been pretty outdated for quite a long time now.

Maura: Thanks, Bethany. I was just going to say I was thinking the same thing that you just concluded with which was that as representatives that work with at least some of VA’s applications and some of VA’s technology-oriented systems, we do know that they are certainly outdated and that improvements would be welcome. So, it’s nice to know that IT or information tech reform is an important component of the spending that’s been authorized through Congress for the year.

Kayla, can you talk to us about additional benefits for veterans that have been contemplated by the NDAA, specifically with respect to national parks? I think it’s a National Mall Memorial item that’s on the agenda for them this year.

Kayla: The first that I’ll talk about is the National Mall Memorial. It’s a new memorial that is going to be for the global war on terror. They are making exceptions to the law to offer as a choice spot in the national mall for this memorial to honor those who served in the longest conflict, which is symbolically bookended by the September 11, 2001 attacks and the fall of Kabul in August of last year. So, just a way of recognizing the veterans that were affected and participated in the global war on terrorism in a more public manner.

The second one is Lifetime Access to National Parks. Veterans, gold star families, and active military members will now have free access to 423 national parks and federal recreational land sites across the country. So, a little bit of a lighter note at the end here, but just allowing free access to these parks across the country.

Maura: Great. Thanks. I agree with the lighter note. Again, this is why I think we are, at least I personally, enjoy this getting to speak about this topic most years because there’s so much that I think comes out of the NDAA every year that sort of orients us to what the Department of Defense and what the VA have for goals and things that are upcoming.

I’ve got a list here and I’m probably going to read off of this list because there are numerous items, but I’ve got a list of other acts that we thought were important to talk about stemming from the NDAA – so, different spending initiatives. These all affect veterans and this is the last item that we’ll talk about before we move on to talking about reforms and other bills that will affect current service members.

There are a number of bills related to veterans’ benefits that we think are important to note. One of them is Making Advancements in Mammography and Medical Options for the Veterans Act which will strengthen breast cancer screening and care, an important initiative that VA has had, I think, on its radar for a while, but that we are really hoping to see get off the ground even more.

The Veterans Prostate Cancer Treatment and Research Act will expand treatment and research of the number one most diagnosed cancer in the VHA system, prostate cancer. Another really important initiative.

The Rural Veterans Travel Enhancement Act will expand travel assistance programs for low-income veterans. The Service Members and Veterans Empowerment and Support Act will improve access to benefits and care for MST or military sexual trauma survivors, and bolster claims processing for former guard and reserve members.

Reform and Update Rural Access to Local Exams Act will improve rural veteran access to medical disability exams by enhancing transparency and revamping delivery of these exams. This is really critical. I think people that know about how VA’s exam process works know that it can be very onerous at times when an exam is scheduled for a veteran and it’s at a location that’s very far away from where the veteran lives and will require a lot of travel. Especially when you’re talking about people that are suffering from really severe disabilities, having to undergo the travel component of the exam, just to attend for a short time. So, this will really be a critical thing, and I’m happy to see that it’s on the list this year.

The Veterans Benefits Improvement Act is supposed to tackle VA’s backlog and result in the issuance of timelier decisions. This is our bread and butter. This is what we are always talking about. We’re constantly tracking VA’s progress with meeting timeline goals. We know that those of you out there who are dealing with the claims and appeals process know how lengthy it can be, how it’s riddled at every step. It feels like, with delays. I hope that this part of the act, the Veterans Benefits Improvement Act, will actually accomplish the goal of reducing the VA backlog, the claims and appeals backlog, and resulting in timelier decisions but I suppose only time will tell.

The PTSD Processing Claims Improvement Act is meant to improve VA’s PTSD claims processing and ensure that veterans have access to care related to PTSD treatment. This is another initiative that I think VA has really had on its radar in previous years. So, it will be interesting to see if there is recognizable improvement in the treatment of persons who are seeking care and disability benefits, I think, for PTSD.

And finally, the Burial Equity for Guard and Reserve Act, which will allow guard and reserve veterans to be buried in state veterans cemeteries.

I’m going to ask you, Bethany, to kick us off with the first topic in the new laws for service members, specifically with respect to regulation of forever chemicals, which is kind of a misleading name because it’s not really a good thing to be a forever chemical. This was a really interesting one. We’ve had this one on our radar at CCK. I think that we’ve been issuing some blog content about forever chemicals, but can you talk to us about what the specific reforms are that have been itemized through the NDAA?

Bethany: This part of the act is, like you said, geared towards regulation of these forever chemicals which are also known as PFAs. We’ve known about PFAs for a while. There has been research done before. A lot of places are testing high for levels of PFAs, a lot of the times in the water supply and the soil as well. The Department of Defense has issued research before showing that military bases, in particular, are testing for PFAs levels above the recommended amount.

PFA is a group of chemicals that have been connected to various health issues including some cancers, liver damage, and decreased fertility. So, the fact that these are being found on military bases is not good for our active service members, as well as our veterans. One aspect of the chemicals and why they’re known as forever chemicals is because once they are in the ground or water, they do stay there for a very long time as they tend not to break down and to stay in the human body, as well, indefinitely.

Outside of being found on military bases, they have been used in nonstick cookware, stain-resistant fabrics, cosmetics, some firefighting foams as well as products that resist grease, water, and oil. They’ve been in the news a lot recently because they’re found in so many different things that you can find in a regular household. But new regulations in the NDAA are going to require the Department of Defense to publish results of drinking and groundwater PFAs testing conducted on or near military installations or former defense sites so they are publicly available. We’d expect that there’s going to be a lot more basis added to the list that show that PFAs has been found present on them and this will allow military members to know whether the PFAs testing has been conducted on their base and whether the levels are above the recommended amount as recommended by the EPA.

Maura: Great. Thank you, Bethany. I think it’s good to know that this is being treated as a military-specific issue, but also to know that regulation, in general, should be one of the priorities, I think, that come out of the, not just the Department of Defense, but the EPA as well because I agree. I think a lot of people are starting to learn more about these chemicals and their presence kind of pervasively. So, it will be interesting to see if states follow suit and put forth similar regulations in their water systems just because of the presence of these contaminants.

I’ve got a few more service member-specific items that we wanted to talk about and then, I think I’ll take it over to you both, Bethany and Kayla, for any closing thoughts that you have. The last few items that we have to talk about have to do with pay raises, the GI Bill expansion, and extended parental leave for service members.

With respect to the pay raise, the NDAA includes a 2.7% pay increase for military service members and Defense Department civilian employees, which is a significant increase. Service members may also see a boost in their housing benefits. The Department of Defense is raising its basic allowance for housing by an average of 5.1% in 2022, which in and of itself is a big increase as compared to the last two years, which were just under 3% increases. So, this year’s 5.1% increase is definitely a significant one.

With respect to GI Bill expansion, the NDAA includes a measure to extend GI Bill protections for student veterans who have or are still forced into remote learning classes by the ongoing coronavirus pandemic. This extension was originally set to end in December of last year, but it will now continue through to the summer of 2022. GI Bill benefits will also be expanded to include select national guard and reserve duty statuses as well.

The extended parental leave portion of the act will entail a change whereby at the end of next year, new military parents will be eligible for 12 weeks of paid family leave following the birth or adoption of a child. This is an increase from what was previously as few as two weeks in some services. The leave will now be 12 weeks of paid leave, which is great to see that significant increase. And, it also means that military mothers who are also the primary caregiver could receive 12 weeks of leave in addition to 6 weeks of convalescent leave for a birth or for an adoption. It’s very nice to see those extensions that will benefit our current service members.

Kayla and Bethany, with respect to any of the topics that we talked about, whether they were laws or spending initiatives for veterans or current service members, do either of you have any final thoughts or things to add or just things that our listeners could sort of keep following or pay special attention to in the coming months?

Kayla: Yes, I think, like you said, we’re really excited to see a lot of these different things on the docket and we’re really hopeful that we will see some improvement over the next year or so as these are continued to be worked on and sort of come to fruition. I think one that I’m particularly interested in following has to do with the burn pit bills. I do want to see how VA continues to adjudicate these if they are expanding their recognition of both the effects of them and the number of veterans that are exposed to them when they are adjudicating claims and appeals. I think it’s something that we’ll continue to keep an eye on as a firm and probably, I would expect that we’ll have a lot more blog posts and broadcasts where we’re talking about it a little bit more in-depth and some of the other legislation that we’ve been following for the last few years regarding that as well.

Maura: Definitely. Thanks. What about you, Bethany?

Bethany: I’m glad that PFAs was included in the NDAA and my hope is that, by it being included, the Department of Defense is going to start being more public about the levels of PFAs present on military bases. I’m hoping that we get more medical research done about the long-term and short-term effects of PFAs exposure. Because, I think there’s still a lot we don’t know about the specific health conditions that active duty service members and veterans who are or were exposed to PFAs might suffer as a result of their presence on these military bases. So, I’m hoping that we start getting more clarity on that because I think that will be really beneficial for veterans who do have disabilities that might be a result of this exposure that we just don’t know yet. So, hopefully, that’s something that we get some clarity on in the future.

Maura: Definitely agree. Thank you both so much for joining today. I really appreciate your insight and all the information about the NDAA and the things that we have to look forward to this year. This has been another very enjoyable session of the Veterans Legal Lowdown. Thanks to all of you out there for tuning in. We hope to see you next time.