Top 5 Issues for VA in 2020

Video Transcription:

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

Courtney Ross:  Good afternoon and welcome to Facebook Live with Chisholm Chisholm & Kilpatrick. We apologize, we had a technical difficulty there. So just as a reminder, I’m here today with Maura Clancy, this is Jenna Zellmer, and I’m Courtney Ross. Today, we are talking about the top five issues for VA in 2020. So the first issue I want to talk about is the caregiver expansion. The Mission Act, which was launched back in June, had a provision that expands caregiver assistance to more veterans. Maura, can you talk a little bit more about the details of that and what that means?

Maura Clancy:  Yes. So the caregiver expansion intends to expand caregiver benefits to veterans who served prior to September 11, 2001. So, currently, the program is limited to veterans who served from that date. The expansion is going to be extending benefits back to veterans from two different time periods. They’ve separated it out. They first wanted to extend these benefits back to veterans who served prior to 1975 and just for some context, we did have another video about this a few weeks ago but for reference, the caregiver assistance program is intended reimburse certain expenses that come up or provide for training for veterans who require certain caregiver-type services under particular conditions. But anyway, as we’ve said before, these are currently only available for veterans post 2001 but the expansion intended to first extend them to people or veterans from 1975 and prior. The deadline for that, I believe, was October of this year which VA missed and they have announced that that deadline problem was due to IT technology issues and so, they intend to implement the expansion next year in the summer of 2020. So, we’re definitely going to be watching for that. But it’s important to note that this is going to be done in a staged fashion. It’s first going to be applied to veterans who served prior to 1975 as we said before and then it will be opened up to veterans who served between 1975 and September 11, 2001. While VA has been working on this for a while as part of the Misson Act in an effort to increase access to healthcare and expand access to better healthcare for people depending on where they live and things like that. It’s not something that’s been completed yet due to the issues that VA has been having.

Courtney:  Okay. Historically, VA has had some issues with the caregiver benefits in general. Can you talk a little bit about what some of those issues are and if they’re likely to continue even with the expansion?

Maura: Right. It’s hard to say whether they are likely to continue but there was an OIG report, or an Office of Inspector General report. These are things that the government will populate after reviewing a certain piece of a government program or a government effort. So they will review it and try to identify any inadequacies or inefficiencies in the implementation of that program. One of the things that they looked at was the caregiver program and they noticed that some caregivers were given stipends and funds to which they were not actually entitled and there were other issues with the removal of certain caregivers who were no longer to receive funds. So, as a result, they were actually funds expended that shouldn’t have been paid to the persons that they were paid to which obviously is not a good look and not something that we want to be happening at the VA.

So, there are some documented issues kind of like that from the past, unclear if they will continue going forward. I guess it’s good that there is that report to sort of direct VA’s attention to the things that are wrong but given that this will be expanding to so many more veterans. I guess it’s possible that some of those issues will repeat although we hope that’s not the case.

Courtney:  Okay great. Before we move on to the next issue, I just want to mention that if you do have any questions throughout the presentation, please feel free to leave some in the comments. We will try to answer them as we go along here. I wanted to turn now to talk about class actions at the CAVC. There has been a number of cases within the last year relating to this and this is going to continue to be an issue moving into 2020. So Jenna, can you talk a little bit about what those cases are and what it means?

Jenna Zellmer: Yes. The CAVC is a separate entity from the VA and the Court reviews VA’s final decisions. The Court’s been around for about 30 years and until last summer, there was no opportunity for a veteran to pursue a class action which just meant that a veteran could really only bring an appeal for himself. He couldn’t find any other similarly situated veterans and bring a class action on behalf of all those veterans. Last summer, Monk v. Wilkie came out and that was a case in which a veteran attempted to bring a class action despite the fact that the Court had never heard one before. Initially, the Court said that they don’t have any authority to do that. That decision was eventually reversed by the Federal Circuit and the Federal Circuit said that the Court does have the authority to hear class actions and so because this has been a relatively new situation, the Court is gradually kind of setting in place procedures on how to allow veterans who have similar situations, have similar issues with VA to pursue a class action rather than an individual appeal. That was only in August of 2018 so, like I said, it’s been about a year and a half. Godsey V. Wilkie was the first class who was certified and that was in June 2019. So, it took almost a year from the initial decision that said you could have a class action for a class action to actually be certified. And that class was certified and had included veterans who have been waiting for more than 18 months for VA to advance their appeals on the docket and VA officials actually testified that over 2500 veterans have been waiting for more than two years for their cases to be certified to the board. And so, we have a lot of Facebook Lives about the Legacy system but that essentially meant that in addition to filing an initial claim, getting a rating decision, filing the VA form 9 after you get an SOC that whole process could take more than two years. That obviously is a long time.

The Court found that unreasonable delays are a constitutional issue. They deprive veterans of due process and so, that’s something going forward to kind of think about is what kind of issues are right for class actions. So, this was a situation in which there were obviously a lot of veterans who are having the same problem and we have seen since that time, the Court has certified two other cases. One of them is Wolfe, which was similar– it was about emergency medical care at non-VA medical centers. A lot of veterans have to seek emergency healthcare at non-VA medical centers and it’s about how the regulation is applied. And then the other one was Scar, and that was actually only two weeks ago. So this is fairly new. That was about a group of veterans who had been exposed to ionizing radiation and in particular a city in Spain. When you’re thinking about whether or not to pursue an individual appeal versus a class action, one of the things you want to consider if your situation is something that several other different, not even several, thousands of different veterans could have potentially experienced also. And I think another kind of implication that you want to think about is how much time you want to spend, not only do the issues need to be fairly narrow, a lot of them are procedural issues and a lot of them you have kind of demonstrate that you are similarly situated to a lot of veterans but it also adds another layer to the appeal process. So, for example, in Scar, we just received this– no, we didn’t receive it but the Court just issued a 60-page decision and it only dealt with the issue of whether or not class certification was appropriate and now, the Court has to go to the merits. And so, it really adds a whole another level of pleading. It adds another whole another level of kind of litigation to the process. And so, this is something that I think is good because the Court is kind of starting to certify these classes but now, we have to kind of get into the weeds and figure out what the Court is going to do once they do make decisions on the merits, how the Court is going to enforce those decisions on a class basis. It’s different when you have one veteran who gets a precedential or a non-precedential decision from the Court. The board has to follow that but it’s another thing to kind of figure out how the VA is going to implement class action decisions on a broad scale.

Courtney:  Great. I think you’ve alluded to a little bit of this already but are there any specific implications for the future of the adjudication of these cases?

Jenna:  I think it’s just a lot of uncertainty. Implications, I think, include– you know, it’s going to be interesting to see how class actions interact with AMA. I think it’s going to be interesting to see– because a lot of these like I said, are procedural issues. It’s like waiting for however long you have to wait between filing a NOD and getting the decision and obviously, in the AMA. There aren’t going to be any Notice of Disagreements. I think the AMA might actually even open up even more opportunities for class actions as we get into jurisdictional issues and procedural issues as VA is implementing all these new regulations. It’s possible that a lot of veterans might experience some growing pains and so, I think, it’s going to be different. I think the Court is kind of move in a different direction as they kind of become more comfortable with class actions.

Maura:  I was just going to add too I think what’s great about where we are now is that I remember when Monk came out, it was the first real case dealing with whether there could be class actions at the court and then the Federal Circuit had decided that there could be. Back then, we didn’t even really have the parameters or the criteria as to how they were going to evaluate whether something was a class. So, when we think about classes usually, or class action litigation, we think about like product liability-type issues, multiple people affected by the same product but we don’t have something really that similar in Veteran’s Law. We’re dealing with something a lot different and so back then, it was sort of like we were wondering how the Court was going to assess these, how they were going to establish classes, what kind of rules they were going to put in place but as Jenna described now, that we have a few more cases from the Court and some more guidance, and definitely some more analysis, it’ll be interesting to see what the next year holds especially with the fact that AMA is in full swing. There are a lot of changes. There are a lot of procedural things that are going on in VA that I think maybe, lend themselves to class action litigation. Definitely, a lot of new things to come–

Jenna: There are a lot of moving parts. There are a lot of uncertainty, but that on the one hand, there’s uncertainty. On the other hand, there’s a lot of room for creativity and a lot of room to make new legal arguments that kind of see what happens. And so, it’s an exciting time.

Courtney:  Okay, thank you. So, the third issue I want to talk about is the Blue Water Navy. Earlier this year, the Blue Water Navy Vietnam Veteran’s Act was passed but it’s been stayed. It is scheduled to go into effect on January 1st of 2020 when the stay is lifted which means VA will have to move forward with adjudicating all of those stayed claims and appeals and is likely to receive an influx of new Blue Water claims from veterans. We recently did a Facebook Live on this topic that covers a lot of this in detail so you can check that out on our website, on our Facebook page, in our YouTube channel. But just to kind of generally summarize again because I think this is definitely one of the top 5 issues for VA in 2020. So, the Blue Water Act expanded the presumption of exposure to herbicides and Agent Orange to veterans who served within the 12 nautical miles from the line of demarcation of Vietnam. Previously, this presumption was only provided for veterans who served in-country or boots on the ground in Vietnam or within inland waterways.

Maura:  Brown water.

Courtney: Brown water, exactly. So it expanded this presumption to the Blue Water veterans. The number of people that VA has said that this is going to affect or the number of people that might be eligible for benefits now, they said this could be upwards of about 400,000 veterans who are now eligible for this. That number may be on the higher side but we know at a minimum it’s at least 77,000 veterans because, a few months ago I think it was in October, VA sent out letters to veterans who had claims that were previously denied for these conditions who might now be eligible under this new presumption, and that again, that number was 77,000. So, at a minimum, it’s at least that many. The exact number is not known. And one thing to keep in mind with these cases that I think is really important is if you have previously filed for a condition that’s on VA’s presumptive list and it was denied, VA has taken the position that they’re not going to automatically re-adjudicate it. So, you do have to file a new claim for that or rather, a supplemental claim is what VA is requiring. If you’ve never filed for the condition before and you want to now file under the new presumption, you want to use the new claim form or the 526EZ. So you guys have anything else about Blue Water that you want to touch on?

Jenna:  I think there’s a little bit of uncertainty but just based on the language of the Blue Water Act, it does appear that language is pretty favorable to veterans who have previously filed claims and has been denied. And so, similar to Nehmer which happened when certain Vietnam veterans were initially denied benefits and then after VA instituted these presumptive regulations, they went back and gave them an earlier effective date based on that initial claim. It seems like we’re going to have a similar situation here. That’s definitely something we’re kind of looking into because they haven’t like really issued anything yet because it is stayed until 2020. We’ll have to kind of wait and see what happens and it’s just going off of your point of you have filed a claim in the past that’s definitely something that you want to think about when you’re filing your claim, about talking to your VSO or your attorney about making sure that you’re getting the right effective date.

Courtney:  Yes. And one thing to keep in mind, too, about the expansion of this law is you can also– this may also benefit veterans who are seeking direct service connection for, certain conditions that may not be on VA’s presumptive list. So, to get direct service connection, you typically need an in-service event or symptoms or an exposure, a medical nexus and then the current diagnosis. So you might have another condition that’s not on VA’s presumptive list that you think is due to your exposure to herbicides while serving within those 12 nautical miles. So now, you no longer have to prove that in-service exposure. You still have to put yourself within the 12 nautical miles but you no longer have to prove that in-service exposure. You’ll just need the medical nexus and the current conditions. So, just keep that in mind.

Maura: I think that’s a really good point and very helpful that this is kind of, among other things, VA’s recognition that herbicide exposure was much more far-reaching than boots on the ground veterans and veterans who were in the brown water inland waterways. Something I’m also interested to see how they really adjudicate these cases once they start working on them after the stay is lifted. I know VA has said that they are working on certain tools and software, and programs to be able to plot the course of ships that the veterans were on and figure out where they actually were in the waters outside Vietnam and try to put them within the 12 nautical miles. I can imagine that that’s probably not going to be very easy to do. I bet there will be a lot of room for different interpretations as to how they reached those determinations and I’m also interested to see what those decisions really look like when they come out and see if we can kind of figure out what kind of tools they’re using, things like that.

Jenna:  Interestingly, there was a small period of time between Procopio which I know we’ve talked about on the blog and in Facebook Live before, and the Blue Water Act in which before the Blue Water Act was stayed in which VA did grant a number of service connection claims based on Blue Water Service and so there are some lucky veterans that kind of snuck in before they got paused and so it’ll be interesting to compare those decisions to these decisions after the Blue Water Act stay is lifted.

Courtney: And just Maura’s point to about how VA’s is planning to adjudicate this, the video that we did on Blue Water recently really goes through into more detail a little bit about what we know about what VA’s tool is and how they plan to use it and what their process will be. So definitely, check that out when you’re interested in learning more about that part of it. So, I want to transition now to talk about possible new Agent Orange presumptive conditions. So, Blue Water relates to expanding the presumption of exposure to herbicides, but there’s also some new conditions that may be added to VA’s list of presumptive conditions. So, Maura, can you talk a little bit about what those conditions are and if there’s a possible timeline here for when VA may add them to the list?

Maura:  It’s an interesting question for sure and it’s interesting that we’re calling these new conditions because all of these stems from a 2016 report by the National Academies of Sciences. VA commissions a report from the Institute of Medicine. I believe that’s within the National Academies and every two years, they’re supposed to be getting updates from the scientific community about what conditions could be related to herbicide exposure or at least the degree to which they might be related to herbicide exposure. So, back in 2016, a National Academies of Sciences report came out and said that there was limited or suggestive evidence of an association between bladder cancer, hypothyroidism, and Parkinson’s-like symptoms and herbicide exposure. Again, that was back in 2016. The limited or suggestive evidence is pretty positive especially when you think about VA’s benefit of the doubt, standard and at least as likely as not standard of proof that VA uses. And so, that association the limited or suggestive evidence probably should have been enough for them to add these conditions to the presumptive list or at least take some affirmative steps in doing that. When we say adding these conditions to the presumptive list, we just mean recognizing that a veteran who was exposed to herbicides and has developed one of these conditions should not have to show a nexus between those conditions and service. VA should just be conceding and presuming that they’re due to service. But nothing has happened. There has been a multiple year delay. Earlier this year, VA issued a report, I believe, saying that they’re going to take some action within the next month or two. That was back in March. Nothing happened after that either. As of recently, I think as of this last week, and even in the last couple of months, people have been pretty upset about this. These are conditions that if added to the list are going to enable people or veterans to prove their service connection claims a lot more easily and there are at least 83,000 veterans who are affected by at least one of those conditions and yet they have not added them to the list. Another thing that they still haven’t added to the list which is really shocking is hypertension. There was a report from 2018 that said that there is even more than limited or suggested evidence–

Jenna: Sufficient.

Maura: Sufficient evidence, exactly, showing that hypertension can relate to herbicides exposure or can arise from herbicide exposure. VA has not added hypertension to the list. This makes me very upset. Some of the issues or some of the reasons that have been cited or alluded to as delaying this whole process include budgetary concerns, which I think is something that rightfully so makes people very frustrated. Granted that adding these conditions to the list is going to be very costly because VA is going to need to pay benefits to again, at least 83,000 veterans who have bladder cancer, hypothyroidism, and/or Parkinson’s-like symptoms. But that aside, that shouldn’t really be the concern when thinking about the policy and the scientific reports say that there is an association. So, these conditions belong on that list for sure. Just in terms of the timing, sorry, just to go back to your original question, there was a bill that was released this week that actually is basically ordering VA to explain why there’s been such a delay in acting on these issues and to explain what kind of cost is going to be involved with the addition of these conditions to the list. There’s definitely some heat being put on VA. We still are not sure when exactly things are going to happen but I think 30 days from the current time is when something is supposed to happen. So, hopefully, in early 2020, development will be on the way.

Jenna:  I think it is also interesting that part of what VA is saying is that they’re waiting on Vietnam veteran morbidity and mortality studies and I think that that’s something to really focus on because when we’re talking about herbicide exposure, for the most part, we’re talking about Vietnam veterans and as we get farther and farther away from the Vietnam war, that class of veterans is aging. And so, it almost– we get this a lot from veterans anecdotally they say, “We just think the VA is waiting for us to die so they don’t have to pay their claim.” We can’t speak for the VA. We don’t know what are VA’s purpose is but it is frustrating to think that there are in addition to the 83,000 veterans there are 300,000 veterans who are suffering from hypertension and that doesn’t mean that all of them necessarily would get service connection but that is almost 400,000 veterans who are waiting for VA to act on something that as been in place since 2016. The science is there and it’s just a matter of kind of bureaucracy.

Maura:  Exactly. The science is there and something that comes up when they discuss adding hypertension to the list or when they talk about delays that we’ve seen with adding hypertension to the list despite the fact that reports came out back in 2016 and 2018, is the fact that hypertension is common to people at a certain age group but really, at the end of the day, it shouldn’t matter. If this is something that can be presumptively related to herbicide exposure, it should be treated as all the other conditions are no matter how common it might be to a certain population or to a certain age group. While there are these other things in play that can definitely we make it a frustrating process in trying to wait for how VA handles these things and develops them, at the end of the day, I think the science speaks for itself and we’re hoping to see a better outcome very soon.

Courtney:  Yes, so this is certainly an issue that we want to keep an eye on in the early months of 2020 to see if there’s any official announcement about whether these conditions will be added to the list or not.

Maura:  Exactly.

Courtney:  The last issue that we want to talk about is how VA is planning to adjudicate some of the pending Legacy claims and appeals that are still pending. Earlier this year in 2019, we touched on this a little bit earlier in the presentation but the Appeals Modernization Act went into effect and so, we are just shy of a year into AMA but with that said, there’s a majority of appeals that are still pending in the old system or the Legacy system and VA has been trying to work their way through the Legacy system so that they can really start to have the majority of appeals in AMA and focus on that. In order to do that, VA has said that it is aiming to eliminate non-remand Legacy appeals. So, any Legacy appeals not pending on remand from the Board of Veterans Appeals within the next nine months, and that number is currently around 132,000 appeals that they would need to work through in those nine months. So, if you are a veteran and you filed a Legacy Notice of Disagreement and you’re waiting for the next decision there or if you received a statement of the case and you filed your VA Form 9 and you’re waiting for the next decision there, VA has said that’s what they’re going to try to be prioritizing over the next nine months. After they get through that backlog of appeals, they would then shift their focus on the remands that are pending and the goal is to get it where VBA’s output is the same as the board’s output in terms of productivity.  So, Maura, can you talk a little bit about what VA has said recently about their claims backlog and what the status of that is?

Maura:  So actually, VA has said that their claims backlog as of, I think, November of this year, was the lowest that had ever been. So when we talk about he claims backlog, it is important to distinguish that from the appeals backlog that Courtney was just referring to. The claims backlog refers to, the way that I understand it, is just the number of claims that are sitting there waiting for their first adjudication and then the appeals backlog would refer to the appeals. So, a decision has been made and an appeal has been filed, and once those steps has been taken, that contributes to the appeals backlog. So again, though VA has said that the claims backlog is looking good and that the average wait time to get an initial decision is about 107 days. I think initially, when AMA was rolled out, they were setting goals of about 120 and 125 days or so, to have an initial decision. So, they’re definitely meeting that. That’s good, in a sense. But we have mentioned before in different videos and different blog posts, I think, that even though we might be getting decision quickly there are still quality concerns. So just because they’re getting through initial decisions doesn’t mean that they are good decisions. So, it’s definitely nice to get a decision quicker because then you have an opportunity sooner to decide what you want to do with it but then, again, the appeals backlog then kind of kicks in if you’re at that stage.

Jenna: And that’s kind of what I was talking about before in the class action part where it’s taking more than 18 months from filing that initial appeal to get a decision. That’s where a lot of the hold up is.

Maura: Yes. Definitely.

Courtney:  So Jenna, could you talk a little bit about the board’s productivity over the last year and how increased or changed from the year before?

Jenna: Yes. The board has made 11% more decisions this year than in the last year and that’s a record high. This year, it made 95,000 decisions and it held hearings in over 22,000 cases. That’s a 38% increase from last year and I think we’re going to put up– are we going to put up a graphic? Maybe. All right. So you guys can see kind of how every quarter the VA productivity has been going on. I think that it’s interesting, even though– 95,000 decisions from the board is extraordinary but it’s interesting when you compare that to VA’s claims for the next nine months. They’re currently planning to eliminate appeals in nine months. That’s about 132,0000 decisions and so, they’re planning on making more decisions than they did all last year in the next nine months. It’s a very lofty goal. I think we’ll see kind of how it works out. I also think it goes to Maura’s point about quality versus quantity. So, that will be something interesting and I think the other thing that’s also interesting in terms of eliminating some of these Legacy cases is what happens to cases that, once the board has made that decision, what happens if they get appealed to the Court and that is something that’s still a little bit uncertain in terms of, you know, if you appeal a Legacy board decision to the Court and you get a  remand from the Court, does it continue to stay in Legacy. Does it go, kind of, does it get funneled back into AMA? Philosophically, VA’s transition to AMA was all about allowing the veteran choice and control for their appeal and so, you would hope that the veteran would be able to make that choice whether they wanted to stay in Legacy which is where they started or if they wanted to switch over to AMA. So, these are all kinds of concerns from the Board’s perspective. They issued a record number of decisions and then it is kind of just– we’re going to have to see what happens in terms of the next nine months.

Courtney:  Yes and one knows about the Board’s productivity kind of prioritizing Legacy over AMA. The Board has also been doing that. So, in addition to the VBA that’s doing it at the Regional Office level, the Board has also been prioritizing Legacy appeals in trying to get through those before they really dive into the AMA appeals that are also pending at the Board. So, that’s important to know as well. Do you have Maura or Jenna, do you have any final thoughts?

Maura:  My only final thought would be that although we have these five issues that we’re anticipating, evolving, and getting some resolution on soon, I feel like there are issues that come up so frequently when it comes to the VA especially now that we have the appeals reform going. The question of how is VA going to juggle Appeals Reform and Legacy. The Blue Water stuff is really historic, honestly. The presumptive list, we really, really want to see changes to that very soon. So, there’s a lot going on for sure. We’re hoping that we get good news on these things soon. We’re certainly keeping our ear to the ground and trying to stay really updated and current on these issues but I would only expect more to come along and I feel like if we did this discussion in a month or two, we would have a whole new crop of issues to talk about. So, we’ll definitely do our best in the meantime to keep everyone updated through other sources and blog post and things like that because there’s just always so much to work with that seems like.

Jenna:  Yes. I think I have to agree with Maura and I think that some of those things like kind of see maybe percolating are some issues that pertain to younger veterans as more and more veterans from the post 9/11 era are getting out of service and kind of navigating their way through this very complicated procedure especially women veterans. That’s going to be on the upswing. VA’s balancing a lot. They’re balancing the demands of these Vietnam veterans who have been waiting so long for their claims and now they’re going to have this whole new crop of veterans who have their own unique issues so I think VA has a lot on its plate and I think it keeps us on our toes, and all we can do is just kind of try to keep up with everything and let people know what’s going on.

Courtney:  Thank you both. Before we wrap up, do we have any questions? No? Okay. This has been Facebook live with Chisholm Chisholm & Kilpatrick and thank you for joining us this afternoon.

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