Latest Updates and Changes at VA: September 2021 by Crystal M. Trulove

Whats New at VA? By Crystal M. Trulove September 2021

Introduction Introduction Crystal M. Trulove crystal.trulove@gmail.com Air Force Veterans Affairs RVSR DRO 2

Whats New at VA? Course Objectives: Understand why there are changes Understand the most recent changes Know where to look up recent changes 3

References https://efiling.uscourts.cavc.gov/ http://www.cafc.uscourts.gov/ https://www.publichealth.va.gov/exposures/agentorange/conditions/ https://www.publichealth.va.gov/exposures/burnpits/index.asp 38 CFR 3.309(e) 38 CFR 3.159(c) 38 CFR 4.40 38 CFR 4.45 38 CFR 3.155 38 CFR 3.2500(b) 38 CFR 14.636(c)(1)(i) 4

Whats New at VA? Reasons for changes Clarifying ambiguities and updating criteria Priority changes (herbicides, backlog, over 65, administration change) Higher court decisions regarding BVA appeals. e.g., DeLuca v. Brown 5

Whats New at VA? United States Court of Appeals for Veterans Claims (CAVC) 12 judges appointed for life by the President Exclusive jurisdiction to review decisions of the Board of Veterans' Appeals If the panel determines that its decision will add significantly to a body of law, it issues a precedential opinion. Otherwise, they are issued as nonprecedential. United States Court of Appeals for the Federal Circuit (CAFC) 12 judges appointed for life by the President Appeals to the court come from all U.S. federal district courts, including United States Court of Appeals for Veterans Claims and more (trademarks, patents, Armed Services, Postal Service, international trade, etc.) Decisions are binding precedent throughout the U.S. 6

Whats New at VA? All federal courts Does set precedent VA at national level Can set precedent VA at local level BVA/Board/Secretary 7

Whats New at VA? CAVC: Helmick v. McDonough Bore the expense applies to anyone who directly contributed financially to the last sickness and burial of a veteran/dependent, even if that person did not personally pay the bills. 8

Whats New at VA? CAVC: Andrews v. McDonough Process/Duty to Assist under AMA does not change with a BVA remand & Legacy appeals Process/Duty to Assist not changed by AMA. Veterans Appeals Improvement and Modernization Act of 2017 (AMA) 9

Whats New at VA? 38 CFR 3.159: (c) VA has a duty to assist claimants in obtaining evidence to substantiate all substantially complete initial and supplemental claims, and when a claim is returned for readjudication by a higher-level adjudicator or the Board after identification of a duty to assist error on the part of the agency of original jurisdiction, until the time VA issues notice of a decision on a claim or returned claim. AMA (Veterans Appeals Improvement and Modernization Act of 2017) seeks to address the delays in claims by repeatedly asking veteran to submit new evidence. 10

Whats New at VA? CAVC: Huerta v. McDonough Active process of osteomyelitis is not required to receive 100% evaluation for osteomyelitis. (although what IS required is not addressed) 11

Whats New at VA? 5000 Osteomyelitis, acute, subacute, or chronic: Of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms 100 60 Frequent episodes, with constitutional symptoms With definite involucrum or sequestrum, with or without discharging sinus 30 With discharging sinus or other evidence of active infection within the past 5 years 20 Inactive, following repeated episodes, without evidence of active infection in past 5 years 10 12

Whats New at VA? CAVC: Beaudette v. McDonough i.VA has incorrectly limited the reviewability of Caregiver Program determinations and must hear appeals from now on ii. Class has been certified and counsel appointed to ensure that all historic denials are addressed 13

Whats New at VA? CAVC: Chavis v. McDonough Criteria for ankylosis does not require actual physical immobility and must consider DeLuca (flare ups) for periods of loss of function equivalent to ankylosis. 14

Whats New at VA? General Rating Formula for Diseases and Injuries of the Spine 100 50 Unfavorable ankylosis of the entire spine Unfavorable ankylosis of the entire thoracolumbar spine Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees 10 15

Whats New at VA? CAFC: Langdon v. McDonough Thoracic and Lumbar sections of the spine cannot be separately service connected and/or evaluated. 16

Whats New at VA? CAFC: Military-Veterans Advocacy (MVA) v. Secretary of Veterans Affairs Three regulations challenged by MVA are invalid due to contravening the meaning of VA governing statutory provisions: 38 CFR 14.636(c)(1)(i), 38 CFR 3.2500(b), and 38 CFR 3.155. 17

Whats New at VA? CAFC: 38 CFR 14.636(c)(1)(i) Attorneys may now charge fees beginning when the supplemental claim is filed, regardless of date. 38 CFR 3.2500(b) A claimant whose appeal is pending before a federal court (CAVC, CAFC, Supreme Court) may now submit a supplemental claim regarding the same issue. 38 CFR 3.155 An ITF filed within one year of a VA decision can maintain continuous pursuit, and if not filed within one year can hold an effective date if the formal supplemental claim is filed within a year. 18

Whats New at VA? New Presumptive Conditions (Vicki) Respiratory Conditions 8/2/2021 VA added 3 presumptive conditions related to particulate matter exposure: Asthma Rhinitis Sinusitis. To be eligible for benefits Diagnosis within 10 years of your separation from active service Service in Afghanistan, Djibouti, Syria, and Uzbekistan from September 19, 2001 to the present, or the Southwest Asia theater of operations from August 2, 1990 to the present. 19

Whats New at VA? New Presumptive Conditions Agent Orange/herbicide presumptives 1/1/21 VA added 3 more presumptive conditions related to Agent Orange exposure: Bladder cancer Hypothyroidism Parkinsonism. 38 CFR 3.309(e) not yet updated 20

What else is new? MST claims are being approved more readily now than in the past. Encourage vets to re-apply What changes have you noticed? 21

Practical Exercises 2021 CAVC Decisions Jeopardy 22

QUESTIONS? Crystal M. Trulove crystal.trulove@gmail.com