A publication of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress
April 2002/May 2002
Veterans Benefits Update
BY LEONARD J. SELFON, DIRECTOR, VETERANS BENEFITS PROGRAM
NATIONAL ACADEMY OF SCIENCES RETREATS ON CHILDHOOD LEUKEMIA
In an April 19, 2001, report, the National Academy of Sciences' Institute of Medicine (IOM) announced that there is "limited or suggestive" evidence that veterans' exposure to dioxin (a contaminant found in Agent Orange) and other chemical defoliant compounds while serving in Vietnam could result in their children developing a rare and deadly form of cancer, acute myelogenous leukemia (AML). It is believed that some 500 to 1,000 children of Vietnam veterans currently suffer from AML.Because there is no legal authority from Congress for the VA to compensate and treat these children, VA Secretary Anthony J. Principi obtained the President's approval to ask Congress for legislation to provide for such benefits. Currently, the only disease for which children of Vietnam veterans may receive benefits - including compensation, job training, and health care - is spina bifida.
On February 27, however, the IOM issued a follow-up report in which it retracted its earlier findings and concluded that there is inadequate or insufficient evidence to determine whether an association exists between exposure to herbicides used in Vietnam and AML in the children of Vietnam veterans. The IOM's reversal was, in part, based upon a revised analysis of an Australian study that the IOM had relied on in its original determination.
The initial Australian study contained an error that led its authors to conclude that the children of in-country Australian Vietnam veterans faced a significantly greater risk of AML than the general population. The revised study determined that while the incidence of AML was somewhat elevated in the Australian children, the elevation was in the range that might be expected within the community. Two American studies that the IOM originally also had relied on were found to have been inconclusive. The IOM further considered two new studies (one Norwegian and one German); however, both were inconclusive.
The IOM concluded that AML no longer meets the requirements for a finding of limited or suggestive evidence of an association between exposure and the onset of the disease in the natural children of Vietnam veterans. It should be noted that the IOM did not determine that there was no causal relationship between parental exposure and next-generation AML, only that there was not enough scientific evidence available to make a decision one way or the other.
NEW REGULATION ON BVA APPEALS
The VA recently promulgated a final regulation that would allow the Board of Veterans' Appeals (BVA) to obtain and clarify evidence associated with the appeal of an adverse VA regional office decision, cure a procedural defect, or take any other action necessary to render an appellate decision, without having to remand the claim to the agency of original jurisdiction (AOJ) for initial consideration and without having to obtain the appellant's waiver of initial AOJ consideration.
This new authority will permit the BVA to undertake its own evidentiary development - including obtaining records and arranging for physical and psychiatric examinations - and thereby avoid prolonged waiting times for cases to go back to the AOJ, have the AOJ identify and obtain evidence and render a new decision - which, if denied, is returned to the BVA for appellate review.
A reduction in the number of BVA remands should also result in smaller backlogs at the VA regional offices. The new regulation requires the BVA to advise appellants of newly obtained evidence and allow them to respond. The BVA also retains the authority to remand the appeal to the AOJ as an available disposition option.
In a January 29 memorandum, the Chairman of the BVA provided instructions for BVA veterans law judges (VLJ) and staff attorneys to implement the new regulatory requirements. In this respect, the BVA has established a new Case Development Unit, which is responsible for completing the evidentiary development ordered by a VLJ. This unit will work with a newly created Veterans Benefits Administration Appeals Support Team operated by the Compensation and Pension Service. The team will process awards in multiple-issue BVA decisions where the Board allows one or more claims, but defers other issues pending BVA development. This will allow claimants to receive benefits immediately, rather than waiting for completion of the required development and appellate adjudication of the deferred issue.
If new evidence is obtained (other than evidence submitted by the claimant or his or her
representative) or the BVA considers a law or regulation not previously considered by the AOJ, claimants will be notified of their right to respond with new arguments or evidence. Although whether to undertake BVA development is discretionary with the VLJs, the Chairman's memorandum urges doing so, rather than remanding the appeal to the AOJ in the traditional manner.
VA SECRETARY ON VETERANS BENEFITS
On February 13, Secretary of Veterans Affairs Principi testified before the House Committee on Veterans' Affairs on a variety of issues, including veterans benefits and claims processing. In his testimony, the Secretary advised the Committee that he would request $1.2 billion and an additional 125 employees over the FY 2002 level to improve the timeliness and quality of processing claims for veterans benefits during the next fiscal year.
He also announced that several of the recommendations of his Claims Processing Task Force have been executed. That includes fast-track processing of the oldest claims for elderly veterans through the Tiger Team and consolidation of pension benefit maintenance at three stations to free VBA employees to focus on adjudicating and rating compensation claims. The Secretary's goals are to achieve an average claims-processing time of 100 days by the summer of 2003 and to secure a decisional accuracy rate of 88 percent by the end of 2003.Secretary Principi also discussed the development and deployment of several new information-technology initiatives to address the timeliness and accuracy of compensation and pension decisions.
EARLIER ATTORNEY APPEALS INVOLVEMENT
In March, the U.S. Court of Appeals for the Federal Circuit ruled that federal law (38 U.S.C. 5904(c)) does not prevent an attorney from representing an appellant on a fee basis which the Board of Veterans Appeals has reopened a previously denied claim on the basis of new and material evidence, and then remanded the claim to the AOJ for further development and readjudication. See Stanley v. Principi, No. 01-7017 (Fed. Cir. Mar. 14, 2002). The statutory language precludes the engagement of paid legal counsel by a claimant until there has been a final BVA decision.
Prior court precedents have considered Board remand decisions to be non-final in nature. The Federal Circuit concluded that for purposes of determining whether a BVA decision is "final," finality requires only the final decision of an issue. Consequently, the Court held that where the issue on appeal is the reopening of a denied claim, a BVA decision to allow reopening is a final decision on that issue.The remand portion of such a decision is actually the next phase of a decision on the merits. Therefore, a remand following the reopening of a claim on appeal would allow appellants to hire attorneys to represent them at the AOJ level. Meanwhile, Congress and the VA are considering whether to amend the law to allow attorney representation during the administrative adjudication process.
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