The Independent Budget
Veterans Agenda for the 116th Congress
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(added January 17, 2019)
Implementation and Modernization of Claims and Appeals Processing
For a long time, the Department of Veterans Affairs (VA) had a complex claims and appeals system. This “legacy” system divided jurisdiction amongst VA’s three administrations and the Board of Veterans’ Appeals (BVA), creating a confusing process with many unnecessary steps. Over time, this complex process contributed to lengthy waits for veterans with appeals before the Board.
To address this untenable situation, The Independent Budget veterans service organizations (IBVSOs) worked closely with VA and Congress to develop the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act), which was enacted in August 2017. The law creates a new system with three review options:
- A “higher-level review” by a more senior claims adjudicator
- A “supplemental claim” option for new and relevant evidence
- An “appeal” option for review by the Board of Veterans’ Appeals
Under the new framework, claimants may choose the option that meets their needs. If properly implemented, this new framework will reduce the time it takes to process, review, and make a final determination, all while ensuring veterans receive a fair decision. Additionally, the new framework includes safeguards to ensure claimants receive the earliest effective dates possible for their claims.
The Appeals Modernization Act is scheduled to become fully effective February 14, 2019, and vigilant oversight is required for successful implementation. The new Act sets forth specific elements that VA must address in its comprehensive implementation plan. The IBVSOs believe that a continued, strong and close collaboration with VA and Congress is vital to ensuring the implementation and utilization of the new appeals system is conducted with maximum transparency and effectiveness. VA must also provide clear metrics to measure the progress and success of appeals and claims reform and strengthen Congress’s ability to hold VA accountable for meeting targets and goals.
VA has met with stakeholders repeatedly as the agency works toward implementation. We view this as a positive sign and encourage VA to continue including the IBVSOs and other stakeholders in developing, implementing, and overseeing any new or existing transformation initiatives. As the representatives of more than a million veterans, veterans service organizations (VSOs) have tremendous experience and expertise in claims and appeals processing through service programs, and are active partners inside VA Regional Offices (VAROs) helping to improve the quality and accuracy of decisions. Neither veterans nor VA can afford appeals reform to fail. We urge Congress to use its oversight authority to make sure stakeholder voices continue to be heard.
Changing the law is one thing, changing the culture in VA workplaces is another. VA has used production goals and other metrics to drive down the backlogs of claims and appeals and provide timely decisions. We strongly caution VA against placing too much emphasis solely on quantity without equal emphasis on comprehensive training and quality review.
As evidenced by the Office of the Inspector General’s report of July 18, 2018, Unwarranted Medical Reexaminations for Disability Benefits and the reports of August 21, 2018, Denied Post-traumatic Stress Disorder Claims Related to Military Sexual Trauma, and Processing Inaccuracies Involving Veterans’ Intent to File Submissions for Benefits, lack of training and improper quality review of claims decisions led to multiple denied claims, reduced benefits, unnecessary examinations, and inaccurate effective dates for claimants. The IG recommended, and we agree, that mandated training and improved quality review would correct many of these issues as well as help to reduce appeals.
Veterans Benefits Administration (VBA) and BVA should collaborate over training on key issues that seem to be denied by the VARO only then to be granted by the Board. For example, many VARO employees indicate that the holdings of the Court of Appeals for Veterans Claims (CAVC) do not apply to their decisions at the VARO and that the Board has more latitude in applying these precedent opinions. However, VA’s M21-1 Manual instructs VARO employees to carefully review the appeal and correct any errors or deficiencies that may exist based on the cited CAVC decision. When adjudicators are not correctly applying the M21- 1, proper and more frequent training provided to VARO employees could reduce future appeals.
BVA recently announced plans to reorganize the role of BVA chief judges who provide oversight, quality review, and training to other BVA judges and attorneys. While we support the Board using its resources efficiently, the IBVSOs are concerned that the elimination of the chief judge role may create a knowledge, training, and oversight vacuum within the Board.
VA, at all claims and appeals levels, must simultaneously focus on timeliness, accountability, the overall claimant experience, and a heightened emphasis on quality. Training and feedback are instrumental in shifting VA’s culture to one primarily driven to achieve quality, rather than merely productivity. After all, proper quality review, training, and feedback will lead to more claims decisions being made right the first time, and thereby lead to a reduction of appeals.
Disability Benefits Questionnaires (DBQs)
In 2010, VA developed DBQs to streamline the collection of medical evidence necessary for processing veterans’ claims and now uses DBQs for all VA Compensation and Pension examinations. DBQs also provide claimants with an improved means to submit private medical evidence to support their claims. Clinicians who are treating veterans and are familiar with their conditions can speed up the claims process by completing DBQs for their patients. By using standardized “check-the- box” DBQs rather than generating long narrative summaries, VBA has been able to reduce the time it takes to make a claims decision.
DBQs used by VBA are separate and distinct from the publicly available “public-facing DBQs” (as termed by the VA). Claimants and VSOs can use public-facing DBQs for private medical examinations. VBA DBQs are consistently updated to reflect any changes to the VA Schedule for Rating Disabilities. Publicly available DBQs for private exams are not consistently updated, in part because they must be submitted to and approved by the Office of Management and Budget (OMB), which can be a time-consuming process.
To avoid overburdening the public with federally sponsored data collections, the Paperwork Reduction Act (PRA) of 1995 requires that U.S. federal government agencies obtain OMB approval before requesting or collecting most types of information from the public. This process includes publication in the Federal Register for public review and comments before final approval.
VBA has indicated an intention to eliminate publicly available DBQs used by veterans for private exams due to the time and resources required to gain OMB approval and keep them updated. Additionally, VBA officials have stated that there is a significant level of fraud in private DBQ submissions. The IBVSOs are deeply troubled by VBA’s decision to eliminate public-facing or the publicly available DBQs for private medical exams. DBQs were intended to simplify the documentation of medical conditions and eliminate, in some instances, the need for a VA Compensation and Pension Examination, thereby removing workload from VBA and allowing quicker decisions.
The IBVSOs have not seen any credible evidence that there is either widespread or systemic fraud resulting from private physicians completing DBQs, and we reject this rationale for eliminating public-facing DBQs. To address concerns about the regulatory burden and delays required to update DBQs, we recommend that Congress enact legislation to exempt DBQs from the PRA. DBQs have proven successful in standardizing medical evidence and allowing veterans to participate in the development of their claims, and the IBVSOs strongly believe that this ability must be protected and preserved.
Quality Control for Board Remands After Appeals Modernization Act Implementation
The Appeals Modernization Act will eliminate remands by the Board except when necessary to correct duty to assist errors as noted in 38 U.S.C. § 5103A. However, unlike the legacy appeals system, these remands will not be returned to the Board when the duty to assist errors have been addressed by the VA Regional Office (VARO) of jurisdiction. We are concerned that without verification of the completeness of the remand, it will be difficult for veterans and their representatives to be sure duty to assist errors are corrected in this new system.
Under the legacy appeals system, there will continue to be remands for specific reasons set forth by the Board decision, and these remands will return to the Board for action. The Court of Appeals for Veterans Claims held in Stegall v. West, 11 Vet. App. 268, 271 (1999), that in general, a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with Board remand directives and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.
The Board reports that for Fiscal Years (FY) 2016, 2017, and 2018, of the 87,848 remanded cases, 37,489 were remanded multiple times due to non- compliance with the original Board remand. For the last three years, nearly 35 percent of the remanded cases were improperly addressed. There is no reason to believe that VAROs will not continue to make such errors in fulfilling remand orders.
The IBVSOs are concerned with the potential for multiple Stegall violations if remands do not have a consistent quality review, and we recommend that VA develop programs to review how BVA remands are treated and to provide feedback to adjudicators to minimize future repeat remands.
VA Must Notify Claimants on Evidence Received After Decision and Outside Appeals Modernization Time Limits
As required by the Appeals Modernization Act, the evidentiary record for a claim before the agency of original jurisdiction (AOJ) closes when VA issues notice of a decision on the claim. The AOJ will not consider, or take any other action, on evidence submitted by a claimant after notice of decision on a claim.
Under 38 U.S.C. § 5103A(e)(1), the duty to assist a claimant “shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the agency of original jurisdiction’s decision with respect to such claim, or supplemental claim….”
We do not disagree with the evidentiary record closing after a notice of a decision on a claim as the statute requires. The IBVSOs do take issue with the VA choosing not to notify the claimant of the receipt of the evidence if the evidence is submitted outside the statutory periods. VA still has a responsibility to notify the claimant separate from the duty to assist. VA should be required to notify the claimant when the evidence is received after the decision, and to advise on the types of actions or claims they can take based on the submission of such evidence.
As part of the Appeals Modernization Act, a Notice of Disagreement (NOD) will now be filed directly with the Board of Veterans’ Appeals. Appellants may choose one of three options or dockets when filing their NOD. They can choose not to submit any new evidence and not to elect a hearing; they can choose to submit new evidence only but not request a hearing; or they can choose to elect a hearing at which they may also submit new evidence.
If the appellant elects to submit evidence only, they will have 90 days from the date the Board received the NOD to submit evidence. If the appellant elects a BVA hearing, they will be able to submit evidence at the hearing and for 90 days thereafter.
We understand the evidentiary record will be closed with the expiration of 90 days after the NOD and 90 days subsequent to a hearing. However, the IBVSOs take issue with the Board remaining silent and choosing not to notify the appellant of the receipt of the evidence prior to a Board hearing or subsequent to the expiration of the 90-day period.
The Board should be required to advise the appellant on the types of actions available based on the evidence submission or if the evidence needs to be presented at the hearing to be considered by the Board. The VA’s obligation to notify does not apply solely to the development of a claim but applies to the overall VA claims process, thus, the VA has a responsibility to notify the appellant of any evidence they receive outside of the required time limits.
Amend Appeals Modernization Act to Require VA Have “Clear and Unmistakable Evidence” to Overturn Previous Favorable Finding
Once the Appeals Modernization Act becomes fully effective on February 14, 2019, 38 U.S.C. §5104A will require that: “any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.”
Therefore, any finding favorable to the claimant can be changed by the VA on a lesser evidentiary standard than required for a claimant to change a previous finding. The Court of Appeals for Veterans Claims in Fagan v. West, 13 Vet. App. 48, 55 (1999), clarified the definition of “clear and convincing” evidentiary standard of proof as an intermediate standard between preponderance of the evidence and beyond a reasonable doubt.
For a claimant to change previous decisions or findings, they must do so with “clear and unmistakable” evidence as noted in the current provisions of 38 C.F.R. § 3.105(a). The Court held in Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)), “clear and unmistakable” evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” This is the highest evidentiary standard used by the VA.
The clear and convincing standard requires proof to a “reasonable certainty” but not necessarily that it be “undebatable.” Once this statute and subsequent regulations take effect, it would allow the VA to change a claimant’s previous favorable finding with a lower burden of proof, “clear and convincing” evidence, while requiring a claimant to provide the highest burden of proof to overcome VA decisions, “clear and unmistakable” evidence. This creates an inequity that benefits the VA and not the claimant. We do not believe it was Congress’s intent to place claimants at a disadvantage, yet that is the result, and we urge an expeditious resolution to this issue.
The IBVSOs recommend that Congress amend the Appeals Improvement and Modernization Act to change the evidentiary requirement of “clear and convincing” evidence to “clear and unmistakable” evidence so the same legal standard is applied to both claimants and VA.
Properly Implement and Utilize IT
Updated and modern IT is critical to the smooth implementation and ultimate success of appeals and claims reform. Despite past failed attempts to modernize its claims processing systems over the past two decades, VBA made a critical decision to transform its paper-based systems and replace them with streamlined business processes supported by modern IT systems. The Board too must rely on new and customized IT solutions to supports its transition to the new appeals system as well as maintain a legacy system for years to come. However, unless VBA and the Board are provided sufficient resources to fully implement and program new IT systems at the front end of these transformations, both productivity and quality will continue to suffer, resulting in more veterans waiting longer to receive their earned benefits.
Over the past several years, both VBA and the Board have developed and implemented new IT systems to support the transformations, including the Veterans Benefits Management System (VBMS), National Work Queue (NWQ), Case Flow and eBenefits. Unfortunately, VBA and the Board must compete with other offices and agencies within VA for the limited IT funding available each year, delaying development and deployment of critical IT systems and programming. As a result, critical IT systems are rarely fully developed before business process changes are implemented. Instead, they are phased in over several years, forcing VBA and the Board to rely on an inconsistent mix of old and new IT systems, as well as an endless stream of suboptimal “work around” solutions. While it may be understandable from a purely budgetary view to stretch out development and deployment of new IT systems, it is a failure from a functional perspective.
Providing only partial IT solutions inevitably results in a loss of productivity, and often leads to lower quality and less accurate decisions on claims and appeals by veterans. Similar problems caused by inadequately developed technology can be seen in the VA’s Vocational Rehabilitation and Employment’s (VR&E) $12 million IT debacle and the Education Service’s continuing problems in making accurate payments under the new GI Bill program.
IT requirements to allow VSO stakeholders to have full and seamless access to veterans’ files are typically relegated to the end of the IT funding priority list. This often results in long delays by VA in recognizing power of attorney (POA) representation by VSOs, hindering our ability to effectively represent veterans, and further lowering quality and productivity. VA must place greater priority on VSO requirements. VA must implement all changes necessary to ensure that when a veteran gives POA to a VSO to represent them, that VSO must receive immediate access to all relevant VBA IT systems and databases.
VBA and the Board must also ensure that new IT systems and technologies are “smartly implemented.” For example, the National Work Queue (NWQ) provides VBA the ability to quickly move and balance workload among VAROs and employees to increase productivity. As the recent IG report on military sexual trauma (MST)- related claims found: When these complex claims are randomly distributed to the next available Veterans Service Representative (VSR) or Rating Veterans Service Representative (RVSR) through the NWQ, without consideration of their applicable expertise and experience with this sensitive issue, the quality of decisions suffered. Recent OIG reports cited above also offer examples of how “smart” use of technology can improve quality. For example, the OIG has reported on a number of errors committed in VAROs that could and should have been prevented, such as unwarranted medical reexaminations for disability benefits and processing errors involving veterans’ Intent to File (ITF) submissions. Better IT development and programming could reduce these types of errors.
Unfortunately, both VBA and the Board have long lists of pending IT funding requests forcing them to prioritize and thereby delay many IT projects that could have led to better, more timely decisions for veterans. In order to achieve the full gains in both productivity and quality possible during claims and appeals modernization, the IBVSOs recommend that Congress provide VBA and the Board with full funding upfront to develop new IT systems and reprogram existing ones. Further, VBA and the Board must constantly review IT systems and technologies to ensure they are being “smartly” used to achieve the highest quality and accuracy of decisions possible, and not just focused on increasing speed or productivity.
VA Must Notify Claimants on Duplicate Intent to File (ITF) Forms
A claimant may indicate their desire to file a claim for benefits by submitting an ITF to VA. If VA receives a complete application appropriate to the benefit sought within one year of receipt of the ITF, VA will consider the complete claim filed as of the date the ITF was received. Upon receipt of the ITF, VA provides the claimant with the appropriate application form and a notice of receipt.
VA will not recognize more than one ITF concurrently for the same benefit (e.g., compensation, pension). If an ITF has not been followed by a complete claim, a subsequent ITF regarding the same benefit received within one year of the prior ITF will have no effect. Currently, if the claimant submits another ITF within the one- year period, VA does not provide any notification of the duplicative ITF and the claimant and their representative may falsely believe that they have one year to file a completed claim.
There are multiple ways for a claimant to present an ITF to the VA and each method may lead to inaccurate information being relayed to the claimant. For example, if a claimant calls the VA at 1-800-827-1000, he or she may initiate an ITF.
Should the same claimant then access his or her eBenefits account six months later, he or she would acknowledge a page that indicates they will have one year from the date they access that page to formalize the claim, which is inaccurate as the VA will recognize this as a duplicate ITF.
In many cases, this has led claimants to submit their claim after the expiration of the one-year timeline from the first ITF. This has resulted in claimants receiving less retroactive benefits since the effective original ITF is not honored, and a duplicate ITF does not start a new timeframe or extend any initial time frame. The IBVSOs are deeply concerned over VA’s decision to remain silent upon the receipt of a duplicate ITF within the one-year period, and we believe VA should be required to notify all claimants when a duplicate ITF is received, and any actions necessary on the claimant’s part to protect their effective date.Back to Top
Burn Pit Exposures
- Congress, Department of Defense (DOD), and VA should continue to advance research, commission studies, and maintain registries of veterans exposed to burn pits. The risks of the exposure needs to be continually reviewed and studied to determine any diseases or long-term health effects resultant of exposure to burn pits.
- Veterans from all eras and conflicts who served in areas where burn pits were known to have operated including veterans of the Operations Desert Shield/Desert Storm and veterans of Operation Joint Endeavor, those who served in Southwest Asia prior to September 11, 2001, and those who served in Djibouti after September 11, 2001, should be considered for inclusion, if appropriate, in all legislation regarding burn pit exposures.
- Congress should enact legislation to concede certain veterans’ exposure to burn pits.
Background and Justification
Continued Research, Studies and Registries
DOD has acknowledged the vast use of burn pits to dispose of nearly all forms of waste. Several studies have indicated that veterans were exposed to burned waste products including, but not limited to: plastics, metal/aluminum cans, rubber, chemicals (such as paints, solvents), petroleum and lubricant products, munitions and other unexploded ordnance, wood waste, medical and human waste, and incomplete combustion by-products. The pits did not effectively burn the volume of waste generated, and smoke from the burn pit blew over bases and penetrated all living areas/quarters.
DOD has performed air sampling at Joint Base Balad, Iraq and Camp Lemonier, Djibouti. Most of the air samples have not shown individual chemicals that exceed military exposure guidelines. The air sampling performed at Balad and discussed in an unclassified 2008 assessment tested and detected all of the following: (1) Particulate matter; (2) Polycyclic Aromatic Hydrocarbons (PAH); (3) Volatile Organic Compounds (VOC); and (4) Toxic Organic Halogenated Dioxins and Furans (dioxins).
Twenty-two of the VOCs and PAHs affect the respiratory system; 20 affect the skin; at least 12 affect the eyes; and others affect the liver, kidneys, central nervous system, cardiovascular system, reproductive system, peripheral nervous system, and GI tract. In at least seven, dermal exposure can greatly contribute to overall dosage
The National Academy of Medicine’s (NAM), formerly the Institute of Medicine, October 31, 2011, report, Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan, found limited but suggestive evidence of a link between exposure to combustion products and reduced lung function. The report also found inadequate or insufficient evidence of a relation between exposure to combustion products and cancer, respiratory diseases, circulatory diseases, neurological diseases, and adverse reproductive and developmental outcomes.
The VA launched the Airborne Hazards and Open Burn Pit Registry in June 2014 to allow eligible veterans and service members to document their exposures and report health concerns through an online questionnaire. As of December 10, 2018, 163,935 veterans and service members completed and submitted the registry questionnaire.
In February 2017, the National Academies of Sciences, Engineering, and Medicine released the congressionally-mandated report, Assessment of the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry. The conclusion noted, “As its analysis has made clear, though, there are inherent features of registries that rely on voluntary participation and self-reported information that make them fundamentally unsuitable for addressing the question of whether these exposures have, in fact, caused health problems.” This clearly indicates the Airborne Hazards and Open Burn Pit Registry alone is insufficient to link any long-term health effects to burn pits exposure.
The Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act 2019, signed into law by President Trump on September 21, 2018, provides $5,000,000 for Veterans Health Administration (VHA) clinical proposals, developed in conjunction with research, focusing specifically on post deployment health for veterans exposed to airborne hazards and open burn pits.
In October 2018, the VA announced they are contracting with the NAM to provide a comprehensive study of burn pit effects. The study is expected to be issued in 2020.
As evident by the numerous toxins and hazardous chemicals emitted by burn pits, the limited but suggestive findings of the NAM 2011 study, Long- Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan, and the continuing and new studies being undertaken, the risks of the exposure to burn pits needs to be continually reviewed and studied to determine any diseases or long-term health effects resulting from exposure to burn pits.
Veterans From All Eras Exposed to Burn Pits
Concerns about possible health risks associated with smoke from open-air waste burning can be traced back to Operations Desert Shield/Desert Storm in 1990–1991. During Operations Desert Shield/ Desert Storm, burn pits were utilized not only in Iraq but also in Kuwait, Oman, Qatar, United Arab Emirates, Saudi Arabia, and Bahrain. In response to a constellation of unexplained symptoms and illnesses reported by returning Persian Gulf War veterans, DOD, VA, and Congress sponsored a series of studies to examine these symptoms. These studies indicated that exposures to smoke from oil-well fires and from other combustion sources, including waste burning, were stressors for troops.
During Operation Joint Endeavor in Bosnia in 1995–1996, military preventive-medicine personnel recognized that open burning of waste might bean operational necessity during combat operations. They recommended that burning should be limited, and open-air waste burning in Bosnia and Kosovo was eventually replaced with incinerators.
The VA Airborne Hazards and Open Burn Pit Registry notes that eligible veterans are those who served in:
- Operation Enduring Freedom/Operation Iraqi Freedom/Operation New Dawn.
- Djibouti, Africa on or after September 11, 2001.
- Operations Desert Shield and/or Desert Storm.
- Southwest Asia theater of operations on or after August 2, 1990.
Several pieces of past and current legislation have been specific to post-9/11 veterans. As noted, however, veterans of Operations Desert Shield/ Desert Storm and Operation Joint Endeavor, and veterans who served in Djibouti after September 11, 2001, have been acknowledged by the DOD as being exposed to burn pits. Congress needs to include these groups of veterans and those veterans from all eras and conflicts who served in areas where burn pits were known to have operated when considering legislation for burn pits exposures.
Legislation to Enact A Concession Burn Pit Exposure
The National Academy of Medicine (NAM) 2011 study, Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan, found limited but suggestive evidence of a link between exposure to combustion products and reduced lung function. The report also found inadequate or insufficient evidence of a relation between exposure to combustion products and cancer, respiratory diseases, circulatory diseases, neurological diseases, and adverse reproductive and developmental outcomes.
VA currently does not provide presumption of service connection for diseases related to burn pit exposure. Continuing research may establish such links and should be pursued. Existing statutes do not concede exposure to toxins from burn pits. The 2011 NAM study did not provide sufficient evidence of links between burn pit exposure and resultant diseases or illnesses. Thus, veterans must establish direct service connection for their illnesses or diseases related to burn pit exposure.
In order to establish direct service connection for a related illness or disease, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, or evidence of exposures; and (3) evidence of a nexus between the claimed in-service disease or injury or exposure and the current disability.
This criteria requires veterans to prove their exposure and to obtain medical opinions linking their diseases or illnesses to burn pit exposures. As the VA does not even concede exposure to burn pits, veterans must provide proof of their exposure. If a veteran is able to prove exposure to burn pits, then they must obtain a medical opinion linking their disease or illness to the exposure. Obtaining a medical opinion with a medical or scientific rationale can be difficult if medical professionals are not aware of the actual chemicals and toxins emitted from burn pits. Both of these requirements can create significant obstacles for veterans obtaining direct service connection for diseases and illness due to burn pit exposures.
The VA is seeking from NAM an additional comprehensive study on the long-term health effects of burn pits with any correlating illness or diseases. It is expected to be completed in 2020. This means that we are still years away from potentially establishing presumptive diseases related to conceded burn pit exposures.
In the interim, Congress should enact legislation to concede burn pit exposure. A concession of burn pit exposure will not establish presumptive service connection. It will, however, remove the obstacles of veterans proving their individual exposure to burn pits and the types of toxins emitted for claims based on direct service connection.
The concession of exposure should include the same veterans currently eligible to join the VA Airborne Hazards and Open Burn Pit Registry. It should concede their exposure to burn pits and to the same chemicals and toxins noted in VA’s M21-1 Manual, including but not limited to:
- Particulate matter;
- Polycyclic Aromatic Hydrocarbons (PAH);
- Volatile Organic Compounds; and
- Toxic Organic Halogenated Dioxins and Furans (dioxins).
Congress should enact legislation to concede burn pit exposure as it will remove the obstacles of veterans proving their individual exposure to burn pits and the types of toxins emitted for claims based on direct service connection. A concession of exposure will also ease potential presumptive service connection implementation by having defined those veterans exposed and the location of exposure.Back to Top
Agent Orange: Exposures, Presumptive Diseases, and Definitions
- Congress should enact legislation to concede herbicide exposure to Vietnam War veterans who served in the waters offshore of Vietnam, commonly referred to as Blue Water Navy veterans.
- The VA should, by regulation, include the additional presumptive diseases for Agent Orange exposure as recommended by the National Academy of Medicine (NAM).
- Congress should enact legislation to concede Agent Orange exposure for veterans who served on or near the Korean Demilitarized Zone (DMZ) earlier than April 1, 1968, and later than August 31, 1971.
- Congress should enact legislation to concede Agent Orange exposure to Vietnam era veterans with service on military bases in Thailand.
- Congress must not redefine herbicides as those solely used in Vietnam.
Background and Justification
Blue Water Navy Vietnam Veterans
In 1990, the Center for Disease Control (CDC) concluded the Selected Cancer Study which showed that Vietnam veterans are at a 50 percent increased risk for non-Hodgkin’s lymphoma. The risk was even higher with those who served in the U.S. Navy offshore. Subsequently, VA published 38 C.F.R. § 3.313 that recognizes non-Hodgkin’s lymphoma for those who served in the waters offshore of Vietnam.
When the VA implemented the Agent Orange Act of 1991, they determined that veterans who received the Vietnam Service Medal, including those who served in the waters offshore, were exposed to Agent Orange. In 1993, a VA General Council Opinion held that veterans with service in the waters offshore were exposed to Agent Orange.
The Veterans Benefits Improvements Act of 1996 extended the war-time period for service in Vietnam. Subsequently, a VA General Council Opinion in 1997 determined that this implied that only veterans who physically served in Vietnam were exposed to Agent Orange. In 2002, the VA updated its manual reiterating that exposure to Agent Orange was conceded only to those physically in Vietnam. The decision to exclude Blue Water Navy veterans from exposure to Agent Orange was not based on science.
The NAM’s 2008 update to its study, Veterans and Agent Orange stated that, “given the available evidence, the committee recommends that members of the Blue Water Navy should not be excluded from the set of Vietnam-era veterans with presumed herbicide exposure.”
In 2011, NAM convened the Blue Water Navy Vietnam Veterans and Agent Orange Exposure Committee to address Agent Orange exposure for Blue Water Navy veterans. Its report found that, “information to determine the extent of exposure experienced by Blue Water Navy personnel was inadequate, but that there were possible routes of exposure.”
In 2016, NAM determined that, “the observed distributions of these most reliable measures of exposure [to TCCD] make it clear that they cannot be used as a standard for partitioning veterans into discrete exposure groups, such as service on Vietnamese soil, service in the Blue Water Navy, and service elsewhere in Southeast Asia.”
Based on a 1990 CDC Study, the VA conceded Agent Orange exposure to Blue Water Navy veterans. For a decade, Blue Water Navy veterans were eligible for and received presumptive service- connection. The VA administrative decision in 2002, not based on science or law, chose to eliminate Agent Orange exposure to the waters offshore of Vietnam. However, now, the VA states there is a lack of science to concede Agent Orange exposure to Blue Water Navy veterans.
Congress should enact legislation to concede herbicide exposure to Vietnam veterans who served in the waters offshore of Vietnam to address the inequity and injustice for Blue Water Navy veterans.
Additional Presumptive Diseases for Agent Orange Exposure
To address diseases related to herbicide exposure, Congress passed the Agent Orange Act of 1991. The act directed VA to presume a service- connected disability for conditions the National Academy of Sciences deemed related to Agent Orange exposure. However, in October 2015, the Agent Orange Act of 1991 expired and it was not renewed by Congress.
The National Academy of Medicine (NAM), formerly the Institute of Medicine (IOM), published the Veterans and Agent Orange update in 2016. The committee concluded that the information assembled constituted compelling evidence for adding bladder cancer and hypothyroid conditions. Further, the study clarified that Vietnam veterans with “Parkinson-like symptoms”, but without a formal diagnosis of Parkinson disease, should be considered under the presumption that Parkinson’s disease.
The report noted that although VA has not found hypertension to be presumptively related to service in Vietnam, the committee reaffirmed the conclusions of previous studies that hypertension should be placed in the category of limited or suggestive evidence of association. On November 1, 2017, the VA issued a press release noting they were exploring these new presumptive conditions related to herbicide exposure. To date, the VA still has not added the NAM recommended presumptive diseases, nor has the VA provided an update to its 2017 press release.
In November 2018, NAM released the report, Veterans and Agent Orange: Update 11. The report concludes that there is sufficient evidence of an association between Agent Orange and the development of hypertension and monoclonal gammopathy of undetermined significance (MGUS).
The VA should include bladder cancer, hypothyroidism, “Parkinson-like symptom” hypertension, and MGUS as additional presumptive diseases for Agent Orange exposure as recommended by NAM. Since the Agent Orange Act of 1991 has expired, we urge Congress to enact legislation to establish a presumptive disability decision-making process that will effect Agent Orange exposure and all future exposures and resultant presumptive diseases or illnesses.
Agent Orange on the Korean Demilitarized Zone (DMZ)
Agent Orange was also used on the Korean DMZ. The DOD defoliated the fields of fire between the front line defensive positions and the south barrier fence. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that effects of spraying were sometimes observed as far as 200 meters down wind.
In 2003, Public Law 108-183 established spina bifida as a presumptive disease for children of veterans exposed to Agent Orange in or near the DMZ. It defines potentially-exposed veterans as those who served in the active military, on or near the DMZ, as determined by the Secretary of VA in consultation with the Secretary of Defense, during the period beginning on September 1, 1967, and ending on August 31, 1971.
Currently, there are no laws conceding Agent Orange exposure for veterans who served on or near the Korean DMZ. However, regulations published in 38 C.F.R. § 3.307(a)(6)(iv) note that if a veteran served on or near the Korean DMZ between April 1, 1968, and August 31, 1971, exposure is conceded and thus the veteran can establish service connection for the established presumptive diseases.
The U.S. Military Advisory Group’s Vegetation Control Plan (CY-68) reveals that Agent Orange was used in 1967 and 1968 in trial application in the U.S. Army 2nd Infantry Division and Republic of Korea Army 21st Infantry Division regions between October 9 and 19, 1967. Based on the U.S. Military Advisory Group’s Vegetation Control Plan, the Republic of Korea recognizes October 9, 1967 as the earliest date of exposure to Agent Orange on the DMZ for their veterans.
In July 2016, the South Korean Daejeon District Court determined that this includes the 3rd Infantry Division GOP region in 1967 with evidence in the form of a Class 3 confidential military document reporting “suspected application” of Agent Orange.
As noted, children of veterans with spina bifida are eligible for benefits based on the veteran’s exposure as early as September 1, 1967. The VA currently only recognizes April 1, 1968, as the earliest date of exposure for a veteran to establish their own presumptive service connection. Congress needs to enact legislation to establish an exposure date earlier than April 1968, as the earliest date of exposure to Agent Orange on or near the Korean DMZ. This would alleviate the inequity created by regulation and be consistent with evidence of Agent Orange use in 1967 on the Korean DMZ.
In reference to the end date of Agent Orange exposure on the Korean DMZ, VA regulatory provisions currently recognize August 31, 1971. For Vietnam veterans, the current law concedes exposure to Agent Orange in Vietnam from January 9, 1962, to May 7, 1975. The end date is four years after the last application of Agent Orange. For exposure to Agent Orange on or near the Korean DMZ, the end date of exposure is August 31, 1971, which is two years after last application.
Research has shown that the dioxin in Agent Orange has a half-life of one to three years in surface soil and up to 12 years in interior soil. The toxicity of dioxin is such that it is capable of killing newborn mammals and fish at levels as small as five parts per trillion (or one ounce in six million tons). Dioxin’s toxic properties are enhanced by the fact that it can enter the body through the skin, the lungs, or through the mouth.
Agent Orange used on the Korean DMZ did not lose its efficacy on August 31, 1971. It continued to be absorbed into the bodies of the troops who were operating on or near the Korean DMZ. The end date of exposure should be later than August 31, 1971. It should be at least four years after the last date of application as this is in line with the end date of exposure conceded in Vietnam.
Agent Orange in Thailand
A DOD 1973 report, Contemporary Historical Examination of Current Operations (CHECO) Southeast Asia Report: Base Defense in Thailand 1968-1972, acknowledges the use of tactical herbicides on Thai Royal Air Force and Army bases. The report notes the significant use of Agent Orange to remove foliage that provided coverage for enemy forces on the fenced-in perimeters of military bases in Thailand.
There are no current statutes or VA regulations to automatically concede veteran exposure to Agent Orange while serving in Thailand during the Vietnam era. VA’s manual (M21-1) does recognize herbicide exposure for specific military occupational specialties on the perimeter of eight Thai Royal Air Force bases.
Congress should enact legislation to codify the concession of Agent Orange exposure to all Vietnam era veterans with service on military bases in Thailand, regardless of military occupational specialty. This will remove the obstacle the VA has placed for presumptive service connection for Thailand veterans.
Defining Herbicides and Agent Orange
In February 2018, the Administration’s proposed budget for FY 2019 included their request for legislation seeking to clarify the chemicals at issue for presumptive service connection for herbicide exposure.
The proposed budget noted, “VA seeks to amend 38 U.S.C. § 1116 to define the harmful chemicals, specifically Tetrachlorodibenzo-p-dioxin (TCDD), used in herbicides. IOM has determined that the only chemical in herbicides for which there are adverse health effects is TCDD. The Department knows that TCDD was not used in commercial herbicides on bases outside of Vietnam. Defining the harmful chemical (TCDD) used in herbicides within the Republic of Vietnam would allow VA to clarify complex rules for exposure claims outside Vietnam.”
The DOD has acknowledged that herbicides with TCDD were used in Vietnam, on the Korean DMZ, and at Royal Thai Air and Army bases. To change the definition of herbicides to specifically limit its use within Vietnam clearly goes against the information provided by the DOD. If enacted, VA would be able to deny all claims based on Agent Orange exposure outside of Vietnam and this proposal appears to be an attempt by the VA to limit presumptive service connection based on herbicide exposure outside of Vietnam.Back to Top
Improve Survivor Benefits
- Dependency and Indemnity Compensation (DIC) benefits should be indexed to 55 percent of VA disability compensation for a 100 percent service- connected disabled veteran.
- Reduce the 10-Year Rule for DIC.
- Congress must enable eligible surviving spouses to retain DIC upon remarriage at age 55.
- Congress must repeal the DIC and Survivor Benefits Plan (SBP) offset.
Background and Justification
Increase DIC Rates
The rate of compensation paid to survivors of service members who die in the line of duty or veterans who die from service-related injuries or diseases was created in 1993 and has been minimally adjusted since then. In contrast, monthly benefits for survivors of federal civil service retirees are calculated as a percentage of the civil service retiree’s Federal Employees Retirement (FERS) or Civil Service Retirement System (CSRS) benefits, up to 55 percent. This difference presents an inequity for survivors of our nation’s heroes compared to survivors of federal employees.
DIC payments were intended to provide surviving spouses with the means to maintain some semblance of economic stability after the loss of their loved ones. Survivors who rely solely on DIC benefits face significant financial hardships at the time of their spouse’s death. The IBVSOs believe the rate of compensation for DIC must be indexed to 55 percent of a 100 percent disabled veteran’s compensation.
Survivors who are dual DIC and SBP recipients may be adversely impacted by an increase in DIC compensation. To ensure such a change does not diminish benefits for dual recipients, the IBVSOs urge Congress to eliminate the SBP-DIC offset or establish an equal increase to the Special Survivor Indemnity Allowance, which was established to alleviate the impact of the DIC and SBP offset.
Reduce the 10-Year Rule for DIC
DIC benefits can be approved for surviving spouses and minor children in two separate ways:
- If the veteran’s death is a result of their service or service-connected disabilities.
- If a veteran is 100 percent disabled, to include individual unemployability, for 10 consecutive years prior to the veteran’s death.
The intent of 38 U.S.C. § 1318 is to provide DIC benefits for surviving spouses and minor children based on the length and severity of the veteran’s total disability rating. The financial status of surviving spouses, many who act as primary caregivers, can be limited for those who put their careers on hold to care for the veteran. The requirement of 10 years seems arbitrary given the severity of many disabilities and the impact on veterans and their families.
The IBVSOs agree that the 10-year rule should be reduced to include consideration of replacing it with a graduated scale. We support a graduated scale that would apply to veterans rated totally disabled for five years or more. For example, if a veteran is rated as totally disabled for five years and dies, a survivor would be eligible for 50 percent of the total DIC benefits increasing until the 10-year threshold and the maximum DIC amount is awarded.
Eliminate DIC and SBP Offsets
When a veteran’s death is the result of a service- connected injury or illness, or following specific periods of total disability due to service- connected causes, eligible survivors or dependents can receive DIC from VA. Career members of the armed forces earn entitlement to retired pay after 20 or more years of service. Survivors of military retirees have no entitlement to any portion of the veteran’s military retirement pay after his or her death, unlike many retirement plans in the private sector. To ensure their survivors receive an annuity after their death, active duty service members pay a monthly premium for SBP. The SBP is not a gratuitous benefit. It is purchased by the military retiree.
Upon a retiree’s death, the SBP annuity is paid monthly to eligible beneficiaries. If the military retiree’s death was unrelated to any service- connected injury or illness, or if the veteran was not totally disabled due to a service-connected disability for the requisite period of time preceding death, beneficiaries receive their full SBP payments. However, if the retiree’s death was due to an injury or illness related to military service, or the retiree was rendered 100 percent total and permanently service-connected disabled for a certain period of time, the SBP annuity is reduced by an amount equal to the DIC payment. When the monthly DIC rate is equal to or greater than the monthly SBP annuity payments, beneficiaries lose SBP annuity payments in its entirety.
DIC and SBP are distinct and unique benefits that veterans receive for very different reasons. It is unjust and malicious to require survivors of military retirees to sacrifice more because their loved ones dedicated their careers to military service and died from injuries or illnesses they sustained while wearing our nation’s uniform.
Additionally, SBP is an opt-in option for military retirees when they are leaving military service, at which time the majority of them have no idea if they will receive disability compensation benefits, or that their survivors may be unjustly impacted by the SBP-DIC offset.
Congress must act to repeal this unjust offset that is based on the false premise that receiving both is a duplication of benefits.
Current law allows a surviving spouse to with SBP rules that permit continued entitlement reestablish entitlement to DIC benefits if they remarry at age 57 or older. The IBVSOs appreciate congressional action that was taken to allow certain survivors to reestablish entitlement to this rightful benefit; however, the current age threshold of 57 years remains arbitrary and imposes an unnecessary burden upon those seeking to remarry.
Remarried survivors of retirees of CSRS, for example, obtain a similar benefit at age 55. This change in eligibility would also bring DIC in line when remarriage occurs at the age of 55.
No eligible surviving spouse should be penalized because of remarriage. Congress should lower the remarriage age requirement from 57 to 55 to continue DIC payments for survivors of veterans who have died on active duty or from service- connected disabilities. Equity with beneficiaries of other federal programs should govern congressional action for this deserving group.Back to Top
Special Adaptive Housing Program and Automobile Grants and Adaptations
- Congress should pass legislation to provide VA the authority to prioritize the Specially Adapted Housing (SAH) claims of terminally ill veterans. VA should also be required to expedite the SAH claims process and be authorized to exercise judgement at the local level in cases where the failure to act poses a significant risk to the life or health of a veteran.
- Congress should enact legislation to establish a supplementary housing grant that covers the cost of housing adaptations for eligible veterans who have reached the maximum amounts for each grant.
- Congress should authorize multiple automobile grants to eligible veterans in amounts equaling the current grant maximum, in effect at the time of vehicle replacement.
- VA must not eliminate reimbursement for certain adaptive equipment requirements now standard on most vehicles.
Expedite Special Adaptive Housing Applications for Terminally Ill Veterans
The SAH grant and the Special Housing Adaptation (SHA) grant processes have numerous requirements. Some requirementshave cumbersome and lengthy procedures. Once eligibility has been established, VA assigns an SAH agent to each veteran to provide guidance and assistance in preparing and collecting required documents and exhibits.
During the initial interview, the SAH agent assesses the veteran’s exterior surroundings, interior living conditions, and overall physical condition and maneuverability. During this initial interview, the SAH agent will also complete a feasibility study. The minimum property requirements (MPRs) focus on safety and sanitation. Some MPRs address how these two items can best be achieved.
Once the feasibility study is completed, the veteran can be given conditional approval. Conditional approval is a status based only upon the SAH program’s feasibility and suitability requirements and prior use. This approval is not a final grant approval nor is it an authorization for construction to commence. Approval must also include a determination on ownership.
Veterans who have amyotrophic lateral sclerosis (ALS) and other terminal illnesses who satisfy eligibility requirements dealing with medical feasibility, property suitability, and financial feasibility can be granted conditional approval that would authorized them to incur certain preconstruction costs for home adaptation.
The next step requires the veteran to obtain three bids from separate builders. This can add time and out of pocket expenses since many areas may not have the builders or contractors available who specialize in special adaptations, and many of these contractors charge a site visit or quote fee from potential clients. Once the veteran has selected the builder with whom he or she wishes to work, the project planning phase may begin. Contracts, plans, and specifications must be approved by the VA. The VA must determine that the plans and specifications for the proposed adaptations demonstrate compliance with the MPRs, and the SAH agent will review all final construction documents to ensure compliance. With the exception noted, all of the above steps need to be completed generally before construction can be started.
SAH agent staffing shortages compound the problem by limiting the amount of time and effort employees are able to dedicate to assisting veterans in navigating all the red tape in order to fully address their unique situations. Furthermore, in some areas SAH agents are routinely tasked with performing other duties not related to the SAH program. When there are only a few agents covering a large geographic area, performing non-related duties severely affects the quality of work provided by these agents. Consequently, the veterans are ultimately the ones who pay the price.
The SAH grant and the SHA grant processes can take an extraordinary amount of time. These time requirements become of great concern for veterans with severely restricting disabilities and terminal illnesses. Veterans who have been diagnosed with ALS and other terminal illnesses often do not survive long enough to benefit from the improvements that an SAH grant could afford them.
Although VA will expedite the claims for veterans who have terminal illnesses, they will not prioritize one veteran’s case over another’s. Congress should pass legislation to provide VA with the authority to prioritize the SAH claims of terminally ill veterans.
Additionally, while the required SAH modifications must be compliant with both local municipalities building codes and VA’s own code, there must be a balanced focus on the immediate needs of the veteran. VA should also be required to expedite the SAH claims process and be authorized to exercise judgement at the local level in cases where the failure to act poses a significant risk to the life or health of a veteran.
Establish a Supplementary Housing Grant
VA provides grants to service members and veterans with certain permanent and total service-connected disabilities to help purchase or construct an adapted home, or modify an existing home to accommodate a disability. Two grant programs exist: the SAH grant and the SHA grant.
The SAH grant helps veterans with certain service- connected disabilities live independently in a barrier-free environment. SAH grants can be used in one of the following ways:
- Construct a specially adapted home on land to be acquired.
- Build a home on land already owned if it is suitable for specially adapted housing.
- Remodel an existing home if it can be made suitable for specially adapted housing.
- Apply the grant against the unpaid principal mortgage balance of an adapted home already acquired without the assistance of a VA grant.
The FY 2019 maximum SAH grant amount is $85,645. It must be used for the purpose of constructing or modifying a home to meet adaptive needs. The maximum grant amount adjusts annually. The grant benefit cannot be used more than three times up to the maximum dollar amount allowable.
The SHA grant helps veterans with certain service- connected disabilities adapt or purchase a home to accommodate the disability. The SHA grant can be used in one of the following ways:
- Adapt an existing home the veteran or a family member already owns in which the veteran lives.
- Adapt a home the veteran or family member intends to purchase in which the veteran will live.
- Help a veteran purchase a home already adapted in which the veteran will live.
The FY 2019 maximum SHA grant amount is $17,130. The grant benefit cannot be used more than three times up to the maximum dollar amount allowable.
Veterans can use the VA adapted-housing grants, not to exceed the maximum amount at the time of the grant. Once the maximum amount is reached, these veterans must bear the full cost of continued accessible living should they move, need to modify a home, or suffer an increase in the severity of their service-connected disabilities. These veterans should not have to choose between surrendering their independence by moving into an inaccessible home or staying in a home simply because they are unable to afford the cost of new modifications.
A supplementary grant should be established for these eligible veterans. The supplementary grant would be available for veterans needing to relocate and for veterans experiencing an increase in the severity of their service-connected disabilities. The IBVSOs recommend that the supplementary grant amounts be at least half of the maximum amount at the time of application for the supplementary grant.
Establish Multiple Automobile Grants
Congress authorizes VA to provide financial assistance to eligible veterans through an automobile grant in the amount of $21,058.69. This one-time grant is used toward the purchase of a new or used automobile to accommodate a veteran or service member with certain disabilities that resulted from a condition incurred or aggravated during active military service.
The Department of Transportation (DOT) reports the average useful life of a vehicle is 11.5 years. Vehicles that have been modified structurally, including modifications to accommodate the weight of a veteran and their wheelchair, can have an accelerated depreciation of usefulness.
On average, the cost to replace modified vehicles ranges from $40,000 to $65,000 when the vehicle is new and $21,000 to $35,000 when the vehicle is used. These substantial costs, coupled with inflation, present a financial hardship for many disabled veterans who need to replace their primary mode of transportation once it reaches its life of service.
Unfortunately, the cost of replacing modified vehicles purchased through the VA automobile grant program presents a financial hardship for veterans who must bear the full replacement cost once the adapted vehicle has exceeded its useful life. The divergence of a vehicle’s depreciating value and the increasing cost of living only compounds this hardship.
We ask Congress to establish multiple automobile grants, for veterans to use once every ten years, equaling the current grant maximum in effect at the time of vehicle replacement.
Reimbursement for Certain Adaptive Equipment Requirements
Under current law, VA reimburses eligible veterans for necessary adaptive equipment required to operate a vehicle safely and effectively. In its 2017 budget proposal, VA proposed to eliminate reimbursement for certain adaptive equipment requirements now standard on most vehicles as a cost-saving mechanism. In reality, this proposal only further erodes the value of the automobile grant by removing the veteran’s purchasing power to a level inconsistent with Congress’s original intent.
This is a surreptitious proposed reduction in benefits for veterans with serious service-connected disabilities. VA is not looking to “modernize the law” to reflect the fact that certain equipment on automobiles that used to be optional is now standard.
The true intent behind this proposal is to give VA broader discretion to determine “necessary equipment” for veterans to safely operate vehicles. It would create a scenario where VA could determine that features such as air-conditioning, power steering, power windows, and other equipment that is now standard on nearly all vehicles, are no longer “necessary” for veterans to operate vehicles, because they are now considered a standard vehicle feature. For veterans who have incurred spinal cord injuries and who have lost the ability to regulate his or her body temperature, air conditioning is a necessity. Furthermore, leather seats allow the veteran to more easily transfer in and out of the vehicle.
For those less nuanced with the adaptive equipment needs of seriously disabled veterans, something like leather seats and air-conditioning would seem like nothing more than luxury items. However, these features, although standard on most vehicles today, are in fact critical components to facilitate safe, efficient, and comfortable operation for some veterans.
VA should not be denying veterans’ reimbursement for certain components that are considered “standard equipment,” but are vital for the veterans operating these vehicles. Congress must resist, and the IBSVOs will strongly oppose, any effort or proposal to eliminate reimbursement for certain adaptive equipment now standard on most new vehicles.Back to Top
- The VA should focus processing of certain post-traumatic stress disorder (PTSD) claims related to military sexual trauma (MST) and “fear-based” stressors to a specialized group of Veterans Service Representatives (VSRs) and Rating Veterans Service Representatives (RVSRs), require an additional level of review, and update current PTSD training.
Background and Justification
PTSD claim adjudication has had a series of regulation changes since its inception. In particular, the regulations for PTSD due to MST and “fear-based” stressors have been adjusted and modified repeatedly due to the relative difficulty of verifying the stressor events. In March 2002, VA had revised its PTSD regulation to provide examples of the types of evidence that may be relevant in corroborating a veterans’ statement regarding the occurrence of a stressor in claims for service connection for PTSD resulting from personal assault to include MST, as well as an overview of the adjudicative rules for such PTSD personal assault claims.
Section 3.304(f)(5) requires a threshold of evidence to proceed with scheduling a PTSD examination and adjudicating the claim. Objective documentation of the actual stressor is not necessary. A VA examination can be scheduled and a medical opinion requested when there is evidence of a “marker” found in service records or post- service records indicating that the stressor may have occurred. Markers include evidence of certain types of reports, lay statements, or behavioral changes that can be associated with the approximate time frame of the claimed stressor. The acceptance of markers as sufficient evidence to proceed with the VA examination and claim adjudication is based on the fact that MST victims often do not directly report or document the stressor at the time it occurs. As a result, evidence must be sought that is indirect, secondary, or circumstantial in nature. Such evidence can reasonably be associated with occurrence of the claimed MST stressor. The initial development of claims for PTSD due to MST or “fear-based” stressors is complex and evidence can be easily missed if a VSR is not sufficiently trained or experienced enough to know what to look for.
In 2010, the PTSD regulation at 38 CFR 3.304(f)(3) was adjusted to allow a veteran’s lay statement alone to establish the occurrence of a claimed in-service stressor when it meets certain criteria. Specifically, this regulation includes “an event or circumstance that involved actual or threatened death or serious injury [involving]… fear, helplessness, or horror.”
By definition, PTSD symptoms result from a fear associated with actual or threatened death, or serious injury. The threshold for scheduling a VA examination in “fear-based” PTSD claims is relatively low, but VA Regional Offices (VAROs) are obligated to first verify that the places, types, and circumstances of the veteran’s service are consistent with an environment where a fear stressor associated with hostile military or terrorist activity may have occurred. This is a case-by-case determination based on duty locations and service, or campaign medals received, among other factors.
In August 2018, the VA Office of Inspector General (OIG) released a report titled, Denied Post-traumatic Stress Disorder Claims Related to Military Sexual Trauma. The report found that the Veterans Benefits Administration (VBA) had incorrectly processed approximately half of the 5,500 denied PTSD MST claims in FY 2017. The most commonly encountered errors in processing included:
- Evidence was sufficient to request a medical examination and opinion, but staff did not request one (28 percent of cases);
- Evidence-gathering issues existed, such as VSRs not requesting veterans’ private treatment records (13 percent of cases);
- MST coordinators did not make the required telephone call to the veteran, or VSRs did not use required language in the letter sent to the veteran to determine whether the veteran reported the claimed traumatic event in service , and to obtain a copy of the report (11 percent of cases); and
- RVSRs decided veterans’ claims were based on contradictory or otherwise insufficient medical opinions (10 percent of cases).
The OIG report noted that the old Segmented Lanes model of claims processing required VSRs and RVSRs in special operations teams to process all claims VBA deemed highly complex, such as MST- related claims. The OIG review team concluded that staff on the special operations teams developed subject matter expertise on these difficult claims due to focused training and repetition.
Under the new National Work Queue (NWQ), VBA no longer required the special operations teams. Under this new model, the NWQ distributes claims daily to each VARO and the VARO determined the distribution of MST-related claims. As a result, MST-related claims could potentially be processed by any VSR or RVSR regardless of their experience and expertise. As a result, the OIG review team determined VSRs and RVSRs at offices that did not specialize in, lacked familiarity with, and were less proficient at processing MST- related claims. The OIG recommended that VBA bring back the specialized teams to work on complex claims such as PTSD based on MST and “fear-based” stressors, and the IBVSOs agree. By returning to these specialized teams we can better assure increased quality outcomes. Further, utilizing the best aspects of the NWQ could enhance the capabilities of these special operations teams by streamlining the delivery of complex claims to the respective subject experts.
Additionally, the OIG reported that RVSRs, quality review personnel, and supervisors interviewed at the four VAROs visited generally thought an additional level of review would be helpful and could improve accuracy. An additional level of review serves as an internal control and quality check to help ensure:
- Claims processors followed all applicable statutes, regulations, and procedures;
- Evidence of record properly supports the decision; and
- RVSR adequately explained the decision.
The IBVSOs agree that an additional level of review would improve the quality of adjudicated claims and decrease the possibility of a wrongfully denied claim.
Furthermore, the OIG report noted that the PTSD training provided to the raters was outdated, included erroneous development procedures such as instructing claims processors to use incorrect medical opinion language, and included incomplete information regarding what constitutes an insufficient or inadequate examination. These were just a few of the many inadequacies that were listed in the document.
The IBVSOs recommend VBA improve or create a new training program and make it an annual requirement that all VSRs and RVSRs have to undergo.Back to Top
Improve Benefits for Persian Gulf War Veterans
- VA must develop a single Disability Benefits Questionnaire (DBQ) for disability compensation claims related to Gulf War Illness (GWI).
- Congress must expand the definition of Persian Gulf War veteran to include those who served in Afghanistan, Israel, Egypt, Turkey, Syria, and Jordan.
- VA must permanently extend the sunset date for presumptive disability compensation for Persian Gulf War veterans.
Background and Justification
Single Gulf War Illness DBQ
Unlike nearly all other service-connected conditions, GWI is intrinsically difficult to diagnose and treat. GWI has no clear and concise set of rules. In other words, no singular set of symptoms allows for an unmistakable diagnosis. GWI presents itself as a conglomeration of possible symptoms to which countless members of the general public with no military experience can also be subject. As such, Persian Gulf veterans have a steeper hill to climb in relating the symptoms to service –– the most critical link in establishing service-connection.
As a component of the VA disability compensation claims process and to better manage its workload, VA developed DBQs to assist in adjudicating claims. Since GWI is constituted by medically unexplained chronic illnesses, VA adjudicators often order examinations for each GWI symptom before considering the indicators that one illness is connected to the multiple symptoms.
The IBVSOs are concerned that the current system of assigning separate DBQs for each symptom being claimed in association with GWI is the leading cause of high denial rates for GWI claims. VA must be required to provide additional testing and examinations deemed necessary by this examination. The Government Accountability Office (GAO) has found that GWI claims are more likely to take longer and get denied than other service-related disabilities. The IBVSOs firmly believe that the creation of a singular DBQ for GWI claims would facilitate more timely and accurate consideration of disability compensation claims for veterans who suffer from GWI.
GAO also identified that an overall lack of training for VHA medical staff who conduct medical examinations leads to inaccurate processing of GWI disability compensation claims. To improve accuracy of claims and to ensure Persian Gulf War veterans receive accurate decisions, the IBVSOs urge VA to require medical staff to complete periodic GWI-specific training before being authorized to conduct medical examinations for GWI disability compensation claims.
Expand the Definition of Persian Gulf War Veteran
Service members have served and continue to serve in the Afghanistan theater of operations since the start of Operation Enduring Freedom and have served under circumstances similar to those serving in Operation Iraqi Freedom, Operation New Dawn, Operation Desert Shield, and Operation Desert Storm.
Several scientific studies have found that veterans who have served in Afghanistan suffer from undiagnosed conditions at similar rates as those who have served in the Iraq. Additionally, veterans who served in support of Operation Desert Shield and Operation Desert Storm while stationed in Israel, Egypt, Turkey, Syria, and Jordan have also presented similar symptoms as veterans who served in Iraq. However, current law limits the definition of Persian Gulf War veteran to those who served on active duty in the Armed Forces in the Southwest Asia theater of operations, which is limited to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, Gulf of Aden, Gulf of Oman, and the waters of the Persian Gulf, the Arabian Sea, and the Red Sea.
As a result, veterans who have served in Afghanistan, Israel, Egypt, Turkey, Syria, and Jordan are denied access to presumptive disability compensation benefits afforded to Persian Gulf War veterans, despite evidence which shows such conditions are common among them. Furthermore, they are being considered Gulf War veterans for reporting and demographic purposes. Veterans who served in Israel, Egypt, Turkey, Syria, and Jordan in support of Operation Desert Shield and Operation Desert Storm are even eligible for the Southwest Asia Service Medal, but are denied access to streamlined disability compensation for disabilities they incurred during their service in Southwest Asia. For this reason, the IBVSOs urge Congress to expand the definition of Persian Gulf War veterans to include such veterans.
Permanent Extension of Presumptive Disability Compensation Benefits
Section 1117 of title 38, United States Code, authorizes VA to “prescribe by regulation the period of time following service in the Southwest Asia theater of operations during the Persian Gulf War that the Secretary determines is appropriate for presumption of service connection for purposes of this section.” As a result, VA has continuously set and extended the sunset date for considering certain disabilities experienced by Persian Gulf War veterans as being presumed to have manifested during military service.
The IBVSOs believe the current sunset date established in regulation (2021) creates an unfair discrepancy between veterans who served early in the Persian Gulf War and those who served later or are still serving in Southwest Asia. If presumption ends in 2021, and troops are still in Southwest Asia, they will not yet have exhausted their five years of VA health care before they can no longer establish service connection for an undiagnosed or chronic multi-symptom illness. Yet, other veterans would have had over 30 years in which to establish service connection. Failure to extend the sunset past 2021 would deny such veterans access to the health care and benefits they need and deserve. For this reason, the IBVSOs urge VA to permanently expand presumptive disability compensation benefits for Persian Gulf War veterans.Back to Top
Eliminate the Disability Compensation and Military Retirement Offset
- Congress must establish a phase-in Concurrent Retirement Disability Pay (CRDP) program for all military retirees who were injured or made ill due to military service.
Background and Justification
Military retirees, based on longevity, may qualify for retirement pay based on their dedicated service to our nation. These same veterans may also qualify for disability compensation for any injuries or illnesses that were caused or aggravated by their military service. Prior to 2004, military retirees could not receive both retirement pay and disability pay because it was erroneously perceived as a duplication of benefits. In 2004, Congress authorized a phase-in of full concurrent receipt for certain military retirees. The CRDP program now rightfully exempts disabled military retirees who have received a service-connected disability rating of 50 percent or higher from having to offset their retirement pay with their disability compensation.
Retirement pay and VA disability compensation are fundamentally different benefits, granted for different reasons. Military retired pay is typically earned by at least 20 years of honorable and faithful military service. VA compensation is paid solely because of disability resulting from military service, regardless of the length of service. Most non-disabled military retirees pursue second careers after military service, thereby enjoying a full reward for completion of a military career with the added reward of full civilian income. In contrast, military retirees with service-connected disabilities do not enjoy the same right. Their earning potential is reduced commensurate with the degree of serviceconnected disability.
Veterans who devoted their careers to military service and sustained service-connected disabilities must not be penalized for becoming injured or ill while in service to our country. It is also inequitable and completely arbitrary for only certain military retirees to have the ability to receive the full benefits they have earned. No service-connected disabled military retiree should suffer a penalty for choosing a military career over a civilian career, especially when, in all likelihood, a civilian career would have involved fewer sacrifices and quite likely, greater financial rewards.Back to Top
Reform VA Debt Collection Processes
- VA must ensure veterans receive clear debt notifications that detail the reasons for the debt and how they can payoff such debts.
- VA must halt the accrual of debt once a beneficiary notifies VA of an improper payment or overpayment.
- Congress must enact legislation to reform debt collections and repayments.
Background and Justification
VA recovered more than $1.5 billion though debt collection in FY 2017, much of which were erroneous debts that caused harm to the veterans VA is charged with serving. Common reasons overpayments or debts are created by veterans include failing to pay health care copays, not reporting changes in family structures or income which impacts benefits, or dropping classes and causing an overpayment in education benefits. When this occurs, a debt notice is sent by VA to the debtor. Such notices are often ambiguous, give no clear options to request recourse, or mailed to the incorrect address –– which leads to inaction by the veteran.
The IBVSOs understand that overpayments must be recouped in order for benefit programs to work efficiently, however, it is important for VA to ensure veterans receive such notices in a timely manner with clear and concise information regarding the steps veterans must take to resolve any outstanding debts. Ultimately, a veteran should be responsible
for repaying the overpayment, if it is indeed legitimate. Due to the inconsistencies regarding communication from VA, as well as the general lack of information regarding the nature of the debt, many veterans are simply unable to meet the deadline imposed on them by VA. As a result, veterans have their benefits garnished with little to no ability to rectify errors. For veterans who rely on earned VA benefits, having these benefits cut off for repayment puts them and their families in financial hardship.
Additionally, overpayments or debts may be caused by VA administrative errors or VA’s inability to halt an overpayment after being notified of such overpayments by beneficiaries. For example, an administrative error by VA triggered a $32,000 education benefits overpayment notification to a former California National Guardsman. The veteran did everything that he could do on his own to rectify the situation, including notifying VA that he was being overpaid. Despite this, VA continued to pay him at an incorrect rate. In another case, a widow receiving DIC remarried in 1986 and notified the VA of the marriage in April 1995, and again in March 2003. However, the VA did not terminate benefits until January 7, 2004, altogether resulting in an overpayment of $179,966. Had VA acted promptly on the first notification, $104,866 (58 percent) of the $179,966 overpayment and debt could have been avoided.
The IBVSOs firmly believe beneficiaries must promptly notify VA of changes or administrative errors that may cause overpayments. Once sufficient notification is made by beneficiaries, however, VA has the obligation to ensure it has processes and systems in place to halt overpayment in a timely manner. Veterans who fulfill their obligations to promptly notify VA should not be punished for VA’s inaction or ineffective processes. Thus, the IBSVOs recommend that Congress require VA to waive overpayments that are accrued after a veteran provides VA sufficient notification of an overpayment. Doing so would also incentivize VA to fix its systems and processes to avoid overpayments altogether.
When a VA health care debt goes unpaid for 180 days, VA refers it to the Department of the Treasury which initiates garnishment of federal benefits until the debt is satisfied or until the veteran can prove that the debt is erroneous. When a VA compensation or pension debt is created, the claimant has 30 days to respond to the Debt Management Center before the entire debt is collected from the monthly compensation or pension payment. In many cases, these collections will engulf the entire monthly payment, thus creating a financial hardship on the veteran and their family.
The IBVSOs urge Congress to enact legislation to reform the collection and repayment of debts. The VA should not be able to collect debts incurred more than five years prior; that debt collection from monthly compensation or pension payments should not exceed 25 percent of the monthly payment, and the VA should waive all additional debt created by their lack of action.Back to Top
Protecting Benefits from Erosion
- Congress must act to ensure that Total Disability Based on Individual Unemployability (TDIU) remains available for all veterans, regardless of age or receipt of any other earned federal benefits.
- Congress should not round-down veterans’ and survivors’ cost-of-living adjustments (COLAs).
- Congress should reject proposals that would narrow the definition of service connection for veterans’ disabilities and cause of death.
Background and Justification
Protecting Total Disability Based on Individual Unemployability
When a veteran’s disability is rated less than 100 percent, but he or she is unable to obtain or maintain substantial gainful employment, VA regulations allow the veteran to apply for TDIU. TDIU is based on the severity of the individual veteran’s unique disability picture and its impact on the veteran’s ability to obtain and maintain substantial gainful employment. Generally, the veteran must have a single disability rated at 60 percent or a combined evaluation of 70 percent to be eligible for TDIU.
Reports published by the Congressional Budget Office (CBO) in November 2013, August 2014, and December 2016, as well as the GAO report in June 2015, made recommendations to limit TDIU based on age and entitlement to additional earned federal benefits.
The Administration’s proposed 2018 Budget contained a proposal of limiting TDIU. It proposed to terminate IU ratings for veterans at age of 62 and cut off TDIU benefits for any veteran already in receipt of Social Security retirement benefits. The Administration, however, later backed away from this proposal.
In December 2018, CBO published a report recommending that VA stop all TDIU benefits to veterans age 67 or older, as this is the full retirement age for Social Security.
Over four million veterans are currently receiving VA compensation benefits. Of those, approximately 350,000 veterans are in receipt of TDIU, commonly referred to as IU, and roughly 200,000 of those veterans are over the age of 65. Important factors regarding TDIU:
- A veteran who is awarded TDIU receives the same level of compensation and ancillary benefits as a veteran in receipt of a total 100 percent rating.
- VA regulation 38 C.F.R. § 4.19, states the VA is precluded from considering the veteran’s age in their determination of TDIU.
- TDIU is not a retirement or pension program and is neither similar to nor related to Social Security Retirement benefits.
- A VA determination of TDIU is not the same nor is it similar to Federal Unemployment Insurance; it is a disability compensation benefit.
Congress must enact legislation to protect TDIU for it to remain available for all eligible veterans regardless of age or receipt of any other earned federal benefits.
Protecting Benefits from Long-Term COLA Round-Down
In 1990, Congress mandated veterans’ and survivors’ benefit payments be rounded down to the next lower whole dollar. While this policy was initially limited to a few years, Congress continued it until 2014. While not significant at the onset, the overwhelming effect of 24 years of round-down resulted in veterans and their beneficiaries losing millions of dollars.
In the administration’s proposed budget for FY 2019, the Administration sought legislation to round-down the computation of COLA for serviceconnected compensation and dependency and indemnity compensation (DIC) for 10 years.
The cumulative effect of this proposal would have levied a tax on disabled veterans and their survivors, costing them money each year. All told, the government estimates that it would cost beneficiaries $34.1 million in 2019, $749.2 million for five years, and $3.11 billion over 10 years. The IBVSOs greatly appreciate the passage of H.R. 4938, the Veterans’ Compensation Cost-of-Living Adjustment Act of 2018, which did not contain such a provision.
Veterans and their survivors rely on their compensation for essential purchases such as food, transportation, rent, and utilities. Any COLA round-down will negatively impact the quality of life for our nation’s disabled veterans and their families, as well as have an overall effect on local economies. The Administration should not seek to make financial savings or address budgetary concerns at the expense of benefits earned by wartime disabled veterans and their families.
Protecting the Definition of Service Connection
Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. Compensation payments are paid to veterans based on the severity of the disabilities VA has determined to be service-connected. Compensation may also be paid to National Guard and Reserve service members who suffer disabilities resulting from injuries while undergoing training.
Periodically, a committee, commission, government agency, or member of Congress proposes that military service should be treated as if it were a civilian job. This issue was again raised recently in the December 2016 CBO biennial report entitled Options for Reducing the Deficit: 2017 to 2026.
The CBO report recommended to narrow eligibility for veterans’ disability compensation by excluding disabilities they deem are unrelated to military duties. The report asserts, “not all service-connected medical conditions and injuries are incurred or exacerbated in the performance of military duties. For example, a qualifying injury can occur when a service member was at home or on leave, and a qualifying medical condition, such as multiple sclerosis, can develop independently of a service member’s military duties.” CBO estimated that by narrowing eligibility and effectively removing disabilities from service connection, it would reduce the national deficit by $26 billion over eight years.
The 2016 CBO report noted that this would make the disability compensation system for military veterans more comparable to civilian systems and that few civilian employers offer long-term disability benefits. Among those that do, benefits do not typically compensate individuals for all medical problems that developed during employment.
Prior to the publication of The Independent Budget, CBO released its Options for Reducing the Deficit: 2019 to 2028. This new report once again proposes to scale back veteran’s disability compensation to lessen the national debt. In fact in goes even farther by suggesting to eliminate compensation benefits for seven specific diseases and to reduce all compensation payments by 30 percent when a veteran reaches the full retirement age for Social Security, currently age 67. It even proposes to eliminate disability compensation payments for veterans receiving less than 30 percent combined evaluation.
Military service is neither similar to, nor equivalent to, a civilian job. It confers unique benefits to society and imposes extraordinary risks to those who served. The men and women who served made incalculable sacrifices and in many instances, endured unimaginable hardships that cannot be quantified as similar to a civilian job. The compensation and benefits veterans receive reflect their sacrifices and should never be limited or narrowed for the sake of budgetary savings.
Congress created the Veterans’ Disability Benefits Commission (VDBC) to carry out a study of “the benefits under the laws of the United States that are provided to compensate and assist veterans and their survivors for disabilities and deaths attributable to military service.” After more than 30 months of hearings, study, analysis, and debate, the VDBC unanimously endorsed the current standard for determining service connection.
Current law requires that an injury or disease be incurred or aggravated coincident with active military service. This remains sound public policy. Any change would only impose additional hardship on the men and women who have already given so much. Congress should reject proposals that would narrow the definition of service connection for veterans’ disabilities and cause of death.Back to Top
Hearing Loss, Tinnitus, and Impairment Requiring Sensory Aids
- Congress should enact legislation to establish a presumption of service connection for hearing loss and tinnitus for combat veterans and other groups of veterans whose military duties exposed them to high decibel levels of traumatic acoustic noise, and who subsequently suffer from tinnitus or hearing loss.
- • VA should amend its Schedule for Rating Disabilities (VASRD) to provide a compensable evaluation of at least 10 percent for any service-connected hearing loss medically requiring hearing aids
Presumption of Service Connection for Hearing Loss and Tinnitus
The National Academies of Medicine (NAM) issued a report in September 2005 entitled, Noise and Military Service: Implications for Hearing Loss and Tinnitus. The report determined that all DOD efforts providing hearing protection and hearing conservation have been inadequate from World War II to the present. The study further notes the DOD conducted inadequate induction audiometric testing including the Whisper Test, had poor record keeping, and lax audio examination practices.
Many veterans are exposed to acoustic trauma and increased noise exposure due to the nature of job requirements while on active duty. Combat veterans are typically exposed to prolonged, frequent, and exceptionally high decibel levels from gunfire, tanks, artillery, explosive devices, aircraft, and other equipment used in the performance of their military occupations.
Types of acoustic trauma include impulse noise and impact noise. Impulse noise is high-level, shortduration noise, which is the product of explosive devices (e.g., gunfire), and impact noise is generated by the forceful meeting of two hard surfaces (e.g., a hammer to a nail, impact wrenches). Of note, impulse/impact noise with peak levels exceeding approximately 140 decibels (dB) may be hazardous even for a single exposure. For example, a 9 mm pistol and M-16 rifle both produce impulse noise over 150 decibels. The report concludes that a single impulse/impact noise exposure can cause noiseinduced hearing loss and tinnitus. Many veterans are routinely exposed to these impulse/impact noises including daily exposure over prolonged periods of time with inadequate noise protection in some instances.
In many cases, VA denies these veterans service connection for hearing loss and tinnitus due to problems identified above, as well as the 2005 NAM study’s conclusion that traumatic noise exposure in service cannot be related to hearing loss diagnosed after service. The study made this determination even though there have been no studies conducted to prove or disprove this theory. The Court of Appeals for Veterans Claims held in Hensley v. Brown, 5 Vet.App. 155, 158-59 (1993), that traumatic noise exposure in-service, even with hearing within normal limits at separation from service, can be related to post service diagnosed noise-induced hearing loss. In Peters v. Brown, 6 Vet. App. 540, 543 (1993), the court held the absence of service medical records showing hearing difficulties was insufficient to overcome the veteran’s testimony of exposure and medical evidence of a present hearing loss consistent with noise exposure.
Given the recognized inadequate hearing protection and conservation efforts by the DOD, the consequences and frequency of traumatic impulse noise exposure, and the unsubstantiated theory in the 2005 NAM report regarding long-term effects, as well as the irreversibility of noise-induced hearing loss and tinnitus, Congress should establish presumptive service connection for hearing loss and tinnitus for combat veterans and those veterans the VA has recognized as having military occupational specialties with traumatic noise exposure.
Compensable Evaluations for Hearing Loss Requiring Hearing Aides
Within the VASRD, hearing loss is evaluated on audiogram testing. The current evaluation system does not contemplate the medically required use of hearing aids. Veterans can be rated at 0 percent based on their audiometric results and still be required to use hearing aids due to their specific type of loss.
The VASRD is predicated on the industrial impairment that each disability provides to the disabled veteran. Hearing loss can impact a veteran’s ability to communicate and negatively affect relationships, school/work performance, safety, and emotional well-being. However, the rating schedule does effectively consider the industrial impact of hearing loss severe enough to require hearing aids.
As noted in 38 C.F.R. 4.10, “The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.” The VASRD does not apply this to hearing loss at 0 percent with required hearing aids.
Furthermore, a National Institutes of Health study, The Socioeconomic Impact of Hearing Loss in US Adults, published in March 2014 noted, “even after controlling for education and important demographic factors, hearing loss is independently associated with economic hardship, including both low income and unemployment/underemployment. The societal impact of hearing loss is profound.”
The VASRD does account for required prosthetics or required medication for control. It provides a 10 percent evaluation for over fifteen different disabilities that require daily medication for control of said disability. However, this concept is not applied to hearing loss at 0 percent with required hearing aids.
Also, it is a general principle of VA disability compensation that ratings are not offset by the function artificially restored by a prosthetic device. A disability severe enough to require use of a prosthetic hearing device should be compensable.
Assigning a compensable rating for medically required hearing aids would be consistent with minimum ratings otherwise provided throughout the rating schedule. This change would be consistent with 38 CFR 4.10, and the findings of the aforementioned National Institutes of Health study. Such a change would be equitable, fair, and recognize the societal and functional impact caused by hearing loss rated at 0 percent disabling.Back to Top
Expand the Definition of Wartime Service
- Veterans who receive hostile fire pay, imminent danger pay, expeditionary medals, or campaign medals must be eligible to receive non-service connected VA pension benefits.
Background and Justification
A non-service connected VA pension is incomebased and is available to a veteran who is at least 65 years of age or is permanently and totally disabled as a result of non-service-connected disabilities, and served at least one day of active duty during a designated period of war.
The Constitution grants Congress the sole authority to declare war, yet the president, as commanderin- chief, may send US forces into hostile situations without a formal declaration. While some of these incidents occur during defined periods of war (e.g., Somalia, 1992–95), many other military actions take place during periods of “peace” (e.g., Grenada, 1983; Lebanon, 1982–87; Panama, 1989) including the Mayaguez Incident (May 12–15, 1975).
The sole service criterion for eligibility for nonservice connected VA pension — at least one day of service during a period of war — too narrowly defines military activity in the last century. Expeditionary medals, combat badges, and the like can better serve the purpose of defining combat or warlike conditions when Congress does not declare war or the president neglects to proclaim a period of war for VA benefits purposes.
For example, between 5,000 to 10,000 US military personnel were estimated to have served with the US Military Assistance Advisory Group in Vietnam between November 1, 1955, and February 27, 1961. However, veterans who served in Vietnam before February 28, 1961, are not considered to have served during the Vietnam era period of war despite facing war-like conditions and receiving the Armed Forces Expeditionary Medal.
Congress must expand the definition of “period of war” to include veterans who receive hostile fire pay, imminent danger, an expeditionary medal, or campaign medal. This action would ensure lowincome veterans who deployed to hazardous and warlike conditions become eligible for non-service connected VA pension benefits.Back to Top
Service-Disabled Veterans’ Insurance Reform
- Congress should enact legislation that authorizes VA to reform the Service- Disabled Veterans Insurance (S-DVI) by increasing the face value of the benefit, providing an open-ended period to apply for the benefit, and reducing the premiums for S-DVI to make it consistent with life expectancy.
Background and Justification
The S-DVI program was designed to provide affordable life insurance coverage to disabled veterans unable to purchase private insurance due to their service-connected disabilities. Over the past 60 years, its cost and benefits have been seriously eroded. At the program’s outset in 1951, rates were based on contemporaneous mortality tables and remained competitive with commercial insurance. Legislation is needed that will modernize the S-DVI program by using current actuarial data to lower premiums as well as adjusting for inflation to significantly increase the benefit payout.
In the six decades since the creation of this benefit, inflation has increased significantly, which has diminished the value of the insurance since the maximum coverage was set by law at $10,000. The IBVSOs recognize that Congress has attempted to address this in authorizing an increase from $20,000 to $30,000 in the supplemental amount available with the passage of Public Law 111-275, the Veterans Benefits Act of 2010. This is still an inadequate sum of money when one considers that many of these veterans cannot purchase supplemental commercial life insurance due to their service-connected disabilities. If the original amount of $10,000 offered in 1951 were adjusted for inflation, it would be closer to $100,000 in 2018.
Additionally, the application period needs to be addressed. Currently, service connected veterans are entitled to apply for S-DVI insurance within two years from the date the VA grants service connection for any disability. However, many of these veterans are having financial difficulties and problems readjusting to civilian life after initial service connection. Therefore, the IBVSOs recommend Congress enact legislation that would authorize an open period for eligible service-connected disabled veterans to apply for coverage under the S-DVI program.
Lastly, the premiums to S-DVI should be lowered in accordance with current insurance data. When Congress created S-DVI, the premiums were based on rates a healthy individual would have been charged when the program was established in 1951, in accordance with 1941 mortality tables. Because life expectancy is much higher in 2018 than in 1951, the veteran is left paying much higher rates for insurance premiums while receiving fewer benefits. We recommend Congress enact legislation lowering the premiums using current mortality tables.Back to Top
VA Treatment for Presumptive Diseases
- Congress should enact legislation to establish a date of claim based on VA health care treatment and diagnosis for recognized presumptive diseases.
Background and Justification
Title 38 of the Code of Federal Regulations recognizes over 125 different types of presumptive diseases based on several different types of exposures, places of service, and chronic diseases diagnosed within 12 months of service.
Veterans suffering from diseases such as cancer, diabetes, and other chronic diseases may not be aware that the conditions may be eligible for presumptive service connection. Many VA medical facilities are not currently staffed or equipped to provide appropriate counseling to veterans or their families on how to file a claim for service-connected benefits, specifically for presumptive diseases.
The Court of Appeals for Veterans Claims held in Bell v. Derwinski, 2 Vet. App. 611 (1992), that VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made.
If the VA is providing treatment for a diagnosed recognized presumptive disease, they have constructive knowledge of the diagnosed disease and that it is a presumptive condition. Congress should enact legislation to establish a date of claim based on VA health care treatment and diagnosis for recognized presumptive diseases.Back to Top
Court of Appeals for Veterans Claims (CAVC)
- Congress should provide all necessary funding and authority to construct a CAVC courthouse and justice center in a location of honor and dignity.
- Congress should clarify the CAVC’s class action authority.
Background and Justification
A Dedicated CAVC Building
he IBVSOs believe the CAVC should be housed in its own dedicated building, designed and constructed to its specific needs, and in a location befitting its authority, status, and function as an appellate court of the United States. During the 30 years since the CAVC was formed, it has been housed in commercial office buildings. It is the only Article I court that does not reside in its own courthouse.
The CAVC should be accorded the same degree of respect enjoyed by other appellate courts of the United States. The IBVSOs urge Congress to authorize and appropriate the resources and authority needed to secure a CAVC courthouse in a location befitting its authority and prestige.
Class Action Authority
In a recent Federal Circuit decision, Monk v. Shulkin, 855 F.3d (Fed. Cir. 2017), the Federal Circuit found that the CAVC has the authority to consider class actions, even though the CAVC had previously found it did not have such authority. Class actions are a way of aggregating claims to handle a similar concern amongst many claimants without each claimant having to prove similar facts or litigate the same case.
The Federal Circuit analyzed the CAVC’s jurisdiction, created under the Veterans Judicial Review Act of 1988 (VJRA). The VJRA established the CAVC as a specialized appellate court that has the exclusive right to review decisions of the Board. Before the VJRA, veterans had no right to appeal decisions of the BVA.
The Federal Circuit found that under the VJRA, Congress did not exclude class actions for veterans, and gave the CAVC authority to prescribe “rules of practice and procedure” including procedures for class actions or other methods of aggregation. The Federal Circuit discussed the benefits of class actions in reducing the delays associated with individual appeals, and correcting systemic errors to ensure that like veterans are treated alike. Ultimately, the Federal Circuit found that the CAVC has the authority to hear a class action, and remanded the case to the CAVC for determination on whether Monk’s particular case, regarding timely adjudication of appeals, should be certified as a class action.
However, after the remand, the Court refused to consider it as a class action, in a lengthy and divided opinion that indicates further guidance may be needed. To ensure this new authority is carried out in the best interest of veterans, the IBVSOs urge Congress to clarify the CAVC’s class action authority and to provide any additional funding to address increased workloads.Back to Top