Increase Transparency & Reform for VA Claims

Department of Veterans Affairs (VA) disability benefits provide monthly compensation to veterans with service-connected conditions. They are also the gateway to VA health care eligibility for most veterans. Although the 2017 Appeals Modernization Act has significantly reduced VA’s appeals backlog, veterans face serious obstacles to establishing successful claims. First, VA has repealed its longstanding policy of permitting accredited service officers to review claims decisions prior to formal promulgation. Additionally, many veterans with health conditions for which there exists a presumption of service connection are unaware of their entitlement to VA health care and benefits.

Reintroduce Pre-decisional Review (48-Hour Review)

In April 2020, VA repealed its decades-long pre-decisional review policy, colloquially known as “48-hour review.” This policy was outlined in VA’s M21-1 Adjudication Procedures Manual¹ and was an essential feature of the VA claims process. During the review process, accredited service officers had the opportunity to inspect VA decisions in the 48-hours preceding formal promulgation to ensure that all claimed conditions had been addressed and properly adjudicated. This process served as an independent quality control check prior to VA’s internal review procedure, known as Systematic Technical Accuracy Review.

A fter reviewing a rating decision, service officers were permitted to notify VA of any irregularities, missed conditions, typographical errors, or other mistakes before a disability rating was formally promulgated. This process allowed for errors to be resolved without requiring veterans to seek redress in the time-consuming and often costly claims appeals process. In sum, the 48-hour review procedure ensured the timely delivery of veterans’ benefits and reduced the workload of VA’s appeals infrastructure.

VA formerly permitted this same quality review in a paper-based system, during which time service officers were granted the opportunity to physically review individual claims folders for accuracy at each VA regional office. Once the service officer was satisfied that a rating was correct, or discussed necessary changes with the rater, the service officer then endorsed the rating to signify concurrence before it was forwarded for promulgation. Both the necessity for and efficaciousness of this review process as a means of ensuring quality control had remained unchanged by the advent of digital claims filing.

A recent report from the VA Office of Inspector General, Report #20-02825-242,² demonstrates just one example of the necessity for reimplementing a 48-hour review. The report found that of the 3,200 claims established from April 7 through April 20, 2020, Veterans Benefits Administration (VBA) staff failed to apply date of receipt guidance in an estimated 98 percent of claims.³ More specifically, the report notes that VBA staff “failed to use the postmark date of mail as the date of receipt, failed to use a date of receipt of February 29, 2020, when the postmark date was unavailable, and failed to document the reasons for estimates of date of receipt on mail with partially legible postmarks.”⁴ These errors are significant because they can cause a veteran to receive an improper effective date for a claim or a denial for untimeliness. However, a service officer could identify and recommend a correction for these types of errors through a 48-hour review.

Establish Claim Dates for VA Treatment

Title 38 of the Code of Federal Regulations recognizes over 125 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 conditions may not be aware that the diseases 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. Such records are considered evidence of record at the time a decision is made.

It follows that if 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.

The IBVSOs Recommend:

• Congress enact legislation to permit service officers to review VA disability benefits ratings 48-hours prior to their formal promulgation.
• Congress enact legislation to establish a date of claim based on VA health care treatment and diagnosis for recognized presumptive diseases.

Ensure Benefits to Veterans Exposed to Toxic Substances

Millions of active duty service members have been exposed to environmental, toxic, and airborne hazards throughout history. These exposures include mustard gas during WWI and WWII, tropical diseases during WWII, extremely cold temperatures in Korea, nuclear atmospheric testing, Agent Orange in Vietnam, contaminated water at Camp Lejeune, as well as burn pits and other hazards in Southwest Asia during the Persian Gulf War and after September 11, 2001.

When service members are subjected to toxins and environmental hazards, our sense of duty to them must be heightened. Many of the illnesses and diseases due to these toxic exposures may not be identified for years, even decades, after completing their service. Although there has been some notable progress achieved over the past two decades, veterans who suffered illness due to toxic and environmental exposures have yet to receive the recognition and benefits they deserve.

Add Presumptive Diseases When Science Provides Positive Association

The Department of Veterans Affairs (VA) has established several toxic exposures as presumptive with conceded exposures and diseases scientifically linked to the exposure. Some established presumptive processes have statutorily required future reports to continue assessing the long-term negative health impacts. However, over the past four years, VA has failed to add diseases that have been determined to have a positive scientific association with those known exposures. Recently, it took Congress to add three diseases that have been pending with VA for four years. However, two diseases still remain pending with VA.

The National Academies of Science, Engineering and Medicine (NASEM) update, “Veterans and Agent Orange,” in 2016, 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. In 2018, NASEM concluded there was sufficient evidence of an association between hypertension, monoclonal gammopathy of undetermined significance (MGUS), and Agent Orange.

VA has not included hypertension and MGUS as presumptive diseases although these conditions were scientifically associated with Agent Orange more than two years ago. In January 2020, VA indicated that they are relying on two internal VA studies the Vietnam Era Health Retrospective Observational Study, or VE-HEROeS, and the Vietnam Era Mortality Study. In December, VA announced the studies will not be available until mid-2021.

Thousands of veterans suffering from the ill effects of these diseases deserve health care, compensation benefits, and justice. Congress again must intervene and enact legislation.

Include Locations of Recognized Exposures

Most presumptive conditions that are based on toxicity have locations that are linked to toxic exposure. For veterans who participated in radiation risk activities, the locations of exposure are vital. Similarly, Agent Orange exposure is conceded for those veterans who served in Vietnam, the waters offshore, and the Korean Demilitarized Zone (DMZ).

VA has yet to recognize Agent Orange exposure in Thailand via statute or regulation. A Department of Defense (DOD) 1973 report, “Contemporary Historical Examination of Current Operations Southeast Asia Report: Base Defense in Thailand 1968-1972,” acknowledges the use of tactical herbicides on Thai Royal Air Force and Army bases. In 2019, DOD and VA released an update on locations of Agent Orange Exposure locations, which now officially includes Thai bases.

Despite that update, 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 does recognize herbicide exposure for specific military occupational specialties on the perimeter of eight Thai Royal Air Force bases. However, limiting exposure to only these specific occupations on the perimeter is unfairly restrictive and provides an unnecessary obstacle to veterans serving in this location and potentially exposed to Agent Orange.

Establish Research on Toxic Exposures

Our service members are consistently exposed to dangerous locations and harmful environments with contaminants and toxins. It is important to note that not all of the harmful exposures have been recognized or even studied sufficiently. It has taken decades for most presumptive exposures and diseases to be established.

For example, VA established eight presumptive diseases related to contaminated water at Camp Lejeune in 2017. These conditions were established over 60 years from the first date of exposure and 30 years after the last exposure date.

The men and women exposed to these hazards cannot wait decades for the studies, research, and science. There are still no definitive studies on veterans exposed to the toxic hazards at Karshi-Khanabad Air Base, Fort McClellan, and Guam. DOD has released new data showing that more than 600 military sites and surrounding communities could be contaminated with perfluorinated chemicals–far more installations than Pentagon officials have previously disclosed.

Veterans suffering from these exposures need a process now that will study these current and future exposures. Waiting is not an option. Congressional action is needed to ensure DOD and VA develop a consistent and timely method for expanding known exposures and study the adverse long-term health effects of other toxic exposures.

Frame the Presumptive Decision-Making Process

As evidenced through this article, inconsistencies delay recognition of exposures, the establishment of studies and research, and the provision of critical health care and benefits to veterans exposed while in service to this nation.

The Independent Budget veterans service organizations (IBVSOs) are concerned Congress and VA will continue to provide piecemeal legislation or regulatory provisions without addressing these much larger issues facing exposed veterans today and in the future.

An overall presumptive process framework needs to be established by Congress to provide consistency. A new framework must: 1) improve DOD and VA data collection and record-keeping; 2) establish a concession of exposure or recognition of the toxic exposure; 3) require statutorily mandated future studies on known exposures; 4) provide a time requirement for action by the VA Secretary; 5) maintain the standard of positive association vs. causation; and 6) update the classifications of scientific association.

The IBVSOs Recommend:

• Congress enact legislation to include hypertension, and MGUS as presumptive diseases linked to Agent Orange exposure.
• Congress 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.
• Congress provide oversight and new legislation to develop scientific studies and research on the long-term negative health of toxic exposures.
• Congress establish a presumptive process frame work that applies to all future exposures and presumptive diseases. The framework should include: requirements for future studies on all presumptive toxic exposure-related diseases; a time requirement for action from the VA Secretary; and an upgrade of the classifications of scientific association.

Improve Benefits for Survivors

Since Dependency and Indemnity Compensation (DIC) was created in 1993, major improvements have been legislated only once in 2003. While minor enhancements have been implemented there is still much that can be done to improve benefits for the survivors of America’s veterans. DIC rates have failed to keep up with the cost of living and fallen short of what federal employees’ survivors receive. In addition, many veterans pass away from nonservice-connected conditions prior to the eligibility period; thus, leaving their families with nothing. Improvements are needed for those left behind to assist with their education and provide benefits to help survivors rebuild their lives. Now that we see the combined effects of a pandemic, plus a war that has spanned almost two decades, the urgency for these improvements is dire.

Increase DIC Rates

DIC is a benefit paid to surviving spouses of service members who die in the line of duty or veterans who die from service-related injuries or diseases to provide surviving families with the means to maintain some semblance of economic stability after the loss of their loved ones. When a service-disabled veteran passes away, not only does the surviving spouse have to deal with the heartache of losing their loved one, but they also have to contend with the loss of their veteran’s compensation. This loss to a survivor’s budget is devastating, especially if the spouse was also the veteran’s caregiver and dependent on that compensation as their sole income source.

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 established in 1993 and has been minimally adjusted since then. Currently, the rate of compensation paid to a veteran’s survivors is significantly lower than the monthly benefits for survivors of federal civil service retirees. This creates inequity for survivors of our nation’s heroes compared to survivors of federal employees.

Reduce the 10-Year Rule for DIC

Veterans who are rated 100 percent disabled or have individual unemployability due to their service-connected disabilities are unable to work in full-time occupations, if at all. In recognition of the severity of many disabilities and the impact on veterans and their families, if a veteran is 100 percent disabled, to include individual unemployability, for 10 consecutive years before the veteran’s death, surviving spouses and minor children are eligible for DIC benefits.

However, if a veteran dies due to a non-service-connected condition before they reached 10 consecutive years of being totally disabled, their dependents are not eligible to receive the DIC benefit. This happens even though many of these survivors put their careers on hold to act as primary caregivers for the veteran, and now with the loss of their veteran, could potentially be left destitute.

The Independent Budget veterans service organizations (IBVSOs) agree that the requirement of 10 years seems arbitrary. The DIC program would be more equitable for all survivors if there was a partial DIC benefit starting at five years after a veteran is rated totally disabled and reaching full entitlement at 10 years. This would mean 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 benefit increasing until the 10-year threshold and the maximum DIC amount is awarded.

Reform Life Insurance

In 1951, the Service-Disabled Veterans Insurance (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. Since then, the cost and benefits of this insurance have seriously eroded. Rates are based on contemporaneous mortality tables and have failed to remain competitive with commercial insurance. Current actuarial data should be used to lower premiums and the benefit payout should be increased to adjust for inflation.

The IBVSOs recognize that Congress has attempted to address inflation through the passage of Public Law 111-275, the Veterans Benefits Act of 2010, which authorized an increase from ^$20,000 to ^$30,000 in the supplemental amount available. However, many of these veterans cannot purchase supplemental commercial life insurance due to their service-connected disabilities, and this is an inadequate sum of money. If the original amount of ^$10,000 offered in 1951 were adjusted for inflation, it would be closer to ^$100,000 in 2018.

With the passage of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, changes were made to update the S-DVI, including raising the payout to ^$40,000.

The IBVSOs want the premiums of S-DVI to be lowered in accordance with current insurance data. Veterans are paying much higher rates for insurance premiums while receiving fewer benefits. The IBVSOs recommend Congress enact legislation lowering the premiums using current mortality tables. Lastly, any legislation aimed at improving this benefit needs to retain the ability for veterans rated 100 percent totally and permanently disabled to retain the premium waiver for basic coverage currently authorized.

Improve Dependents Educational Assistance

Spouses and surviving spouses eligible for educational benefits under Dependents Educational Assistance only have 10 years to apply and complete these education programs, beginning either from the date the veteran is rated permanently and totally disabled or the date of the veteran’s death. Due to circumstances such as the demands of raising children alone or needing to re-enter the workforce to supplement the loss of the decedent’s income many are unable to apply in a timely manner.

Far too many times, when a spouse is ready to utilize the benefit, the time period has lapsed, leaving these men and women without the ability to further their education and improve their living circumstances. The IBVSOs urge Congress to remove the 10-year delimiting date for spouses and surviving spouses to utilize their Chapter 35 benefits.

Require COVID-19 Medical Opinions

As of October 2020, over 3,500 veterans have died from COVID-19 without a medical opinion stating whether their service-connected conditions contributed to their death. Certain service-connected disabilities have proven to be comorbid with COVID, including diabetes, hypertension, and heart disease, and may be overlooked as contributing factors in the veteran’s death. Thus, veteran families may be denied important survivor benefits. The IBVSOs advocate for the Secretary of the VA to require a medical opinion on all veterans who die due to the novel Coronavirus and have a service-connected disability.

Waive the 8-Year Requirement for Surviving Spouses to Receive the DIC “Kicker”

Title 38, United States Code, Section 1311(a)(2) allows an additional DIC monthly payment of ^$288.27 to survivors in the case of a veteran who at the time of death was in receipt of or was entitled to receive compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death. This monetary installment is commonly referred to as the DIC “kicker.” Amyotrophic lateral sclerosis (ALS) is an aggressive disease that leaves many veterans totally incapacitated and reliant on family members and caregivers. Individuals diagnosed with ALS have an average lifespan of between two to five years. Sadly, many veterans are unable to meet DIC’s eight-year requirement. VA already recognizes ALS as a presumptive service-connected disease and due to its progressive nature, automatically rates any diagnosed veteran at 100 percent once service connected. We recommend extending these increased DIC payments to surviving spouses of veterans who die from ALS regardless of how long they had ALS prior to death.

The IBVSOs Recommend:

• Congress index the rate of compensation for DIC to 55 percent of a 100 percent disabled veteran’s compensation to parity what federal survivors receive.
• Congress replace the current 10-year period for eligibility for DIC with a graduated scale that begins at 5 years and reaches full entitlement at 10 years.
• Congress enact legislation that lowers S-DVI premiums using current mortality tables but without sacrificing the ability for veterans rated 100 percent totally and permanently disabled to waive their premiums.
• Congress enact legislation that would remove the 10-year delimiting date for spouses and surviving spouses to utilize their Chapter 35 benefits.
• Congress enact legislation that would require the Secretary of the VA to seek a medical opinion when a service-connected veteran dies of COVID-19.
• Congress extend increased DIC payments to surviving spouses of veterans who die from ALS regardless of how long they were service-connected with ALS prior to death.