High-Impact Court Decisions at the VA - May 2019

Whats New at the VA By Amanda Berry May 2019

Hi there! Nice to meet you! Amanda Berry 2

Agenda Who are you? What do you want to know? High Impact Court Decisions What are they? Procopio v. Wilkie, January 29, 2019 Withers v. Wilkie, August 10, 2018 Monk v. Wilkie, December 18, 2018 OIG Investigation on MST Claims IOM study on hypertension and MGUS/herbicide exposure Pop Quiz! 3

What do you want to know? 4

What are Court Cases and Why Are They Important? Court Cases started as a claim, went to appeals, passed the Board of Veterans Appeals, went to Court of Appeals for Veterans Claims (outside VA), then was appealed to the Federal Circuit Court. A court case is the final judicial interpretation of the Code of Federal Regulations (CFR) Court Case sets precedents tells VA how to apply the rules of law. 5

CourtDecisions High Impact Procopio v. Wilkie, January 29, 2019 Extending presumption of service connection for Agent Orange related illnesses to Blue Water Veterans. Withers v. Wilkie, August 10, 2018 For Individual Unemployablility claims, the impact of capability of sedentary work and substantially gainful occupation. Monk v. Wilkie, August 23, 2018 Veterans now able to bring class action lawsuits against the Veterans Benefit Administration. 6

Procopio v. Wilkie January 29, 2019 7

Procopio v. Wilkie, January 29, 2019 What the Case is about: Mr. Alfred Procopio appealed a decision to the Court of Appeals for Veterans Claims (CAVC) denying service connection for prostate cancer and diabetes mellitus as a result of exposure to Agent Orange (AO), during his Vietnam Era service in the Navy. Mr. Procopio applied for presumption of service connection as a Blue Water Navy Veteran. Blue Water Navy Veterans, currently subject to presumption of service connection for AO exposure, are referred to as Veterans with offshore waters exposure. 8

Procopio v. Wilkie, January 29, 2019 Definition (current) Blue Water (offshore waters): M21-1 IV.ii.1.H.2.b. Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. Note: Service in offshore waters is also referred to as blue-water Navy service. Locations include: DaNang, Nha Trang, Qui Nhon Bay, Cam Ranh Bay and Vung Tau Harbors; as well as Ganh Rai Bay 9

Procopio v. Wilkie, January 29, 2019 Background Mr. Procopio served aboard the U.S.S. Intrepid from 1964-1967. In July 1966, the Intrepid was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea. Procopio sought entitlement to service connection for diabetes mellitus in 2006 and for prostate cancer in 2007 but was denied service connection for both in 2009. Mr. Procopio appealed this decision to the CAVC arguing that the language in the Agent Orange Act, 38 U.S.C. 1116, entitled Procopio to a presumption of service connection for his prostate cancer and diabetes mellitus. CAVC denied and Mr. Procopio appealed to the Federal Circuit Court. 10

Procopio v. Wilkie, January 29, 2019 Case Study The Agent Orange Act, 38 U.S.C. 1116., concluded a presumption of service connection for Veterans with service in the Republic of Vietnam. Procopio argued that the Republic of Vietnam definition is ambiguous. It was argued that the AO Act should unambiguously include service in the offshore waters within the legally recognized territorial limits of the Republic of Vietnam. The territorial sea of the Republic of Vietnam extends 12 nautical miles from the coast. 11

Procopio v. Wilkie, January 29, 2019 Decision The Federal Circuit Court held that the clear intent of 38 U.S.C. 1116 (the Agent Orange Act) includes Veterans who had service in the territorial sea (12 nautical miles) of the Republic of Vietnam. The decision will require VBA to extend the presumption of service connection where the claimant can establish (1) service in the territorial seas of Vietnam in the time period specified in the AO Act and that (2) he or she suffers (or suffered, death claims) from one of the presumptive diseases already listed in the Agent Orange Act. 12

Procopio v. Wilkie, January 29, 2019 Current Status VA file a motion (appeal) to stay implementation, which suspends action on claims potentially affected by the this decision, while VA continues to evaluate the court s decision. However .. During an appearance before the Senate Veterans Affairs Committee (March 26, 2019), VA Secretary Robert Wilkie said he will not ask the Department of Justice to continue to fight the legal issue. Federal officials had until late April to appeal the decision. 13

Procopio v. Wilkie, January 29, 2019 Impact on the Veterans you serve: Until subsequent determinations have been resolved, any claimed issues cannot have a rating decision take place. In any claim submitted where there is an issue(s) relating to the Procopio decision, the claimed issues will have an EP 335 established pending further guidance. (VBA letter 20-19-05). Remember, current blue water Veterans can still be established by presumption for ships that were considered to have: Traveled on inland waterways Docked to a pier or the shore of the RVN, or Sent crew ashore Shiplist!! 14

Procopio v. Wilkie, January 29, 2019 Shiplist: Continue to do your homework. Although this decision is precedential to the way VA adjudicates claims under the AO Act, until any subsequent determinations have been resolved there may be a stay of unknown, although limited, time. VA still has to train its adjudicators and establish policy for adjudication of these affected claims. Look through the Veterans file. What ships was he/she on? Are any of these ships already established on VA s shiplist? Maybe your Veteran was denied before because they did not provide a lay statement for one of the ships that was on the shiplist . Bottom line, continue to pursue all avenues for presumption of service connection. 15

Withers v. Wilkie August 10, 2018 16

Withers v. Wilkie, August 10, 2018 What the Case is about: Mr. Barry Withers appealed a decision to the Court of Appeals for Veterans Claims (CAVC) regarding entitlement to Individual Unemployability (IU). The Board of Veterans Appeals had denied Mr. Withers IU based on his ability and education that still allowed him to perform sedentary work . The CAVC remanded the case for clarification on sedentary work . 17

Withers v. Wilkie, August 10, 2018 Background Barry Withers served on active duty in the Army from 1968 and 1969. Withers is service connected for gunshot wound residuals of the right arm and leg, low back condition and PTSD. In 2005 he applied for Individual Unemployabilty Benefits (TDIU). He operated an investment firm and retired early due to his service connected disabilities. The RO denied this claim, citing examiner s comments on minimal impact sedentary employment . The board concluded that his service connected disabilities did not preclude him from limited or sedentary employment and that his college education and three-decade history as a sales manager strongly suggest that he has the training to perform sedentary employment. 18

Withers v. Wilkie, August 10, 2018 Decision Mr. Withers case is currently remanded for the impact on sedentary work by his service connected PTSD. The CAVC stated that the examiner described functional limitations and opined that the Veteran was still capable of sedentary work . The term sedentary work as used by the examiner does not encompass the facts of the case. Before the Board can rely on examiners comments regarding functional impairment, it must ensure the findings are consistent with the totality of the evidence. It must explain how it interprets sedentary work to the context of an individual case. 19

Withers v. Wilkie, August 10, 2018 Impact on the Veterans you serve: Since the CAVC defined that 38 CFR 4.16 does not make sedentary work an explicit TDIU factor. Without an individualized assessment into the impact of sedentary work, the CAVC determined that the phrase can be regarded as conclusory and meaningless . Any previously denied TDIU claims, based on the ability to do sedentary work , can be re-opened if an individualized assessment is not part of the rating decision narrative. The M21-1 manual has been updated to reflect these changes. 20

Withers v. Wilkie, August 10, 2018 Impact on the Veterans you serve: Common scenario - Your Veteran wants to file a claim for IU stating his/her disabilities preclude gainful employment. The Veteran has what most people consider a desk job . To put any other evidence (other than medical) in the context of sedentary employment, gather any and all non-medical evidence. This can include: Statements from the employers regarding impact on the Veterans particular job or career Statements from the Veteran Job description for the Veterans chosen profession . 21

Withers v. Wilkie, August 10, 2018 Impact on the Veterans you serve: Make this evidence as equally weighted or important as any medical evidence gathered during the Veterans claim. Since most IU claims result in examinations with physicians statements on impacts to employment, it s up to you to present the strongest argument as it applies to the Veterans individual circumstances. For example, if the Veteran has been a painter his whole life and, according to the examiner, is capable of sedentary employment. Is a desk job considered gainful employment for the Veteran? Does the Veterans work/educational history counter gainful sedentary employment? . 22

Monk v. Wilkie August 23, 2018 23

Monk v. Wilkie, December 18, 2018 What the Case is about: Mr. Conley Monk, Jr., after facing many appeals with the VA, filed a petition with the CAVC to direct the Secretary to decide appeals within 1 year after a Notice of Disagreement was filed. Mr. Monk filed this petition on behalf of himself and other claimant s facing financial and medical hardship. Monk alleged that the VA s delay in processing appeals violates the right to due process under the 5th Amendment. The petition asked the Court to grant relief to an aggregate group pursuant to the principles of Rule 23 of the Federal Rules of Civil Procedure (Rule 23). The Court interpreted this request as a motion for a class action. 24

Monk v. Wilkie, December 18, 2018 Background After submitting an amended petition, 8 other petitioners joined the proposed class. All had applied for and were denied VA compensation benefits and did not receive a decision from the VBA within 12 months. For Mr. Monk, the Court found that his particular class of petitioners did not have a common question or common answer . Basically, that the only thing tying their class action together was the delay itself and not the individual merits of each appeal. 25

Monk v. Wilkie, December 18, 2018 Background The Court cited the Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) Supreme Court Decision. In this class action, a group of female employees file suit for pay discrimination. The Supreme Court stated that any pay discriminations were at the discretion of local managers and that the class action lacked glue or commonality required by Rule 23. Monk argued that the commonality for this class action was the delay. 26

Monk v. Wilkie, December 18, 2018 Decision The CAVC denied Mr. Monks request for class action because it would require that the remedy be individualized and tailored to the needs of the individual Veteran. This kind of relief would not truly be classwide and not satisfy Rule 23. However The Judges did say that in appropriate cases in the future, class-action lawsuits would be entertained. 27

Monk v. Wilkie, December 18, 2018 Impact on the Veterans you serve: Chief Judge Robert Davis opinion: This is a watershed decision, and its importance should not be diminished merely because the court declined to certify this proposed class. On the contrary, the court's decision will shape our jurisprudence for years to come and, I hope, bring about positive change for our nation's veterans. Fellow appeals court Judge Michael Allen said the decision has been decades in coming and holds great promise as a means to address systemic problems in the VA system. Veterans can now take Class Action lawsuits against the VA! 28

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims 29

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims Background According to the Department of Defense, more than 5,200 service members reported a sexual assault in FY 2017 for an incident that occurred during their military service, an increase of about 10 percent from the previous year. Because of the instance of severe underreporting of Military Sexual Trauma (MST) during service and the perception of negative implications for performance, MST often leads to posttraumatic stress disorder (PTSD). Due to the reluctance to report during service, it is often difficult to provide evidence to support claims. 30

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims Background In 2011, VBA implemented guidance to take a more liberal approach regarding evidence to support and identify stressors related to MST (VBA Training Letter 11-05, Adjudicating PTSD Claims Based on MST, December 2, 2011). Basically, the Veteran had to have evidence of a behavioral marker as an indicator of possible MST. If the Veteran had a current mental disorder or provides lay testimony of a mental disorder (i.e. I m depressed , I stay anxious ) the VA would request an informed opinion linking the diagnosis to the MST event. There was to be a low threshold for requesting examinations in MST claims. 31

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims OIG Findings VA processed approximately 12,000 MST claims in the last several years (FY2014-FY2017). VBA denied about 5,500 (46 percent) of those claims. OIG took a random sample of 169 claims that VBA denied from April 2017 through September 2017. OIG found that VBA incorrectly adjudicated 82 of 169 of those MST cases. This translates to a 49% error rate. The majority of the errors were cited because there was sufficient evidence to request a medical examination and opinion, but VBA staff did not request one. 32

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims OIG Findings 1. Lack of specialization. After implementation of the National Work Queue (NWQ), there was no longer a requirement to use segmented lanes in VBAs organizational model (special operations). Because of this, more staff was exposed to specialized work. Additionally, those who were specialized were less exposed to MST claims and became less proficient. 2. Lack of additional level of review. VBA has second signature requirements for other specialized claims, such as traumatic brain injuries (TBI) s but did not require this for MST claims. 33

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims OIG Findings 3. Discontinued special focused reviews. VBA s quality assurance programs consist of the national Systematic Technical Accuracy Review (STAR) team for Compensation Service and the Quality Review Teams (QRT) at each VARO. The STAR team stopped conducting special focused quality improvement reviews of MST-related claims in December 2015, as these resources were reallocated towards other areas because the error rate had declined for MST claims from 2011 to 2015. 4. Inadequate Training. VBA has not updated the MST training since 2014, despite multiple changes to the Adjudication Procedures Manual during that time. The OIG team reviewed the training and identified significant deficiencies, including flawed development procedures and misstated roles and responsibilities for the MST Coordinator. 34

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims OIG Recommendations The OIG made six recommendations to the Under Secretary for Benefits. Recommendations included reviewing all denied MST-related claims since the beginning of FY 2017, reviewing and taking corrective action on those claims where VBA staff did not take all required steps, directing MST-related claims to a specialized group of claims processors, and making improvements to VBA s oversight and training on the processing of MST-related claims. 35

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims VA s Response VBA concurred with five of the six recommendations, and agreed with the principle in the remaining recommendation. VA instituted a requirement for a 90-percent accuracy rate on at least 10 cases per employee, with all cases subject to a second-signature review until such accuracy rate is achieved. Additional training was mandated to identify MST claims and VBA turned toward specialized processes for adjudicating these claims. Additionally, VBA updated its manual for the proposed recommendations. (M21-1 Adjudication Procedures Manual, Part IV, Subpart II, Chapter 1, Section D, Topic 5, Developing Claims for SC for PTSD Based on Personal Trauma) 36

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims Impact on the Veterans you serve: Any Veteran denied for MST related claims can submit a supplemental claim, as the OIG report is new and relevant evidence. Continue to be proactive, look for markers yourself or with the Veteran if they are comfortable. Markers can be as minute as a reassignment request, any behavioral changes around the time of the incident(s) or any notations in the STR s such as pregnancy tests (female Veterans), treatment for STD s, etc. Obtain corresponding lay/buddy statements in support of the claim. Still not getting through? Always ask for a higher-level review (DRO) and cite the M21-1. Don t back down! Remember, VBA only had a 51 percent accuracy rate in adjudicating MST claims. 37

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims M21-1 III.iv.4.O.3.d. - Evidence That May Constitute a Marker of Personal Trauma If primary evidence, such as STRs and service personnel records, contain no explicit documentation that personal trauma occurred, and alternative sources of evidence do not provide credible supporting evidence of the trauma, evidence of behavioral changes around the time of, and after, the incident(s), may constitute a marker of a personal trauma PTSD stressor. 38

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims A marker? The term marker means an indicator of the effect or consequences of the personal trauma on the Veteran. A marker could be one or more behavioral events, or a pattern of changed behavior. Even if there is no reference to the personal trauma, evidence of the behavior changes below may circumstantially support the possibility that the claimed stressor occurred. 39

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims Types of Markers Evidence that may be a marker of trauma includes but is not limited to: Increased use or abuse of leave without an apparent reason, such as family obligations or family illness Episodes of depression, panic attacks, or anxiety without identifiable reasons Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment Use of, or increased interest in, pregnancy tests or tests for sexually- transmitted diseases (including the human immunodeficiency virus (HIV)) around the time of the incident Sudden requests that the Veteran s military occupational series or duty assignment be changed without other justification Changes in performance and performance evaluations Increased or decreased use of prescription medications 40

Office of Inspector General (OIG) report on VA s Military Sexual Trauma claims Markers, continued Increased use of over-the-counter medications Alcohol or drug abuse Increased disregard for military or civilian authority Obsessive behavior such as overeating or undereating Unexplained economic or social behavior changes Treatment for physical injuries around the time of the claimed Trauma, but not reported as a result of the trauma, and/or The breakup of a primary relationship Notes: Behavioral change evidence may include lay statements or documentary evidence. Although the examiner s opinion is not determinative of the outcome of the claim, it will be accepted as significant probative evidence when evaluating SC for the diagnosed mental disorder. 41

IOM study on hypertension and MGUS/ herbicide exposure 42

IOM study on hypertension and MGUS/ herbicide exposure Institute of Medicine (IOM) - Veterans and Agent Orange: 11th Biennial Update, November 15, 2018. What is it? This report was the final one required of the Veterans and Agent Orange series, which was required by the AO act of 1991. The Secretary of VA was directed to contract with the National Academies of Science Engineering and Medicine to conduct a comprehensive review of scientific and medical literature on the health effects of exposure to tactical herbicides in the Vietnam War. 43

IOM study on hypertension and MGUS/ herbicide exposure Discussion After a review of current and prior research, the committee concluded that the information now assembled constitutes enough evidence of an association between exposure to at least one of the chemicals of interest and hypertension. This finding is based in part on a recently published study of U.S. Vietnam Veterans that found that self-reported hypertension rates were highest among former military personnel who had the greatest opportunity for exposure to these chemicals. 44

IOM study on hypertension and MGUS/ herbicide exposure Discussion The committee also concluded that there is enough evidence of an association between exposure and monoclonal gammopathy of undetermined significance (MGUS), a clinically silent condition that is a precursor to the cancer multiple myeloma. The committee recommended adding the condition of hypertension and MGUS to the list of presumptive conditions already noted in 38 CFR 3.309(e). 45

IOM study on hypertension and MGUS/ herbicide exposure Impact on the Veterans you serve: For now, VFW will continue to monitor the progress of the potentially two new presumptive illnesses. In the meantime, file these claims! Even if currently denied, you are potentially preserving an effective date if the diseases do become presumptive. 46

QUESTIONS?