April 2002/May 2002
Veterans Benefits Update
BY LEONARD J. SELFON, DIRECTOR, VETERANS
NATIONAL ACADEMY OF SCIENCES RETREATS ON
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
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
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