VA Proposes New Regulation For Rating Infectious Diseases

Today VA published in the Federal Register a proposed regulation to amend the VA Schedule for Rating Disabilities [VASRD] in connection with Infectious Diseases, Immune Disorders, and Nutritional Deficiencies.

Here is the link to the Federal Register: https://www.govinfo.gov/content/pkg/FR-2019-02-05/pdf/2019-00636.pdf

The purpose of these changes is to incorporate medical advances, update medical terminology, and clarify evaluation criteria. The proposed rule considers  comments from experts and the public during a forum held from January 31 to February 1, 2011, on revising this section of the VASRD.

Comments must be received by VA on or before April 8, 2019.

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Easier Access to Health Care For Veterans: NEW Veterans Affairs Proposed Rulemaking – election of private urgent medical care

“The Department of Veterans Affairs (VA) is proposing to amend its regulations that govern VA health care. This rule would grant eligible veterans access to urgent care from qualifying non-VA entities or providers without prior approval from VA. This rulemaking would implement the mandates of the VA MISSION Act of 2018 and increase veterans’ access to health care in the community.” 

See:  https://www.govinfo.gov/content/pkg/FR-2019-01-31/pdf/2019-00277.pdf

Comments must be sent to VA by March 9, 2019.  This proposed regulation will likely become final summer 2019.

Please contact me with any questions, at 646-343-7785

Agent Orange Presumption Applies To Territorial Waters – Federal Circuit

January 29, 2019

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1821.Opinion.1-29-2019.pdf

 

United States Court of Appeals For The Federal Circuit – Washington DC

Today the Federal Circuit rejected VA’s long-standing interpretation of  38 USC 1116, that grants a presumption of service connection for certain diseases for veterans who “served in the Republic of Vietnam.”

Appellant – Veteran Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea. Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007 but was denied service connection for both in April 2009.

The Board of Veterans’ Appeals likewise denied him service connection in March 2011 and again in July 2015, finding “[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange,” under § 1116. The Veterans Court affirmed.

The Court reversed and mandated, “Here, we determine at Chevron [Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984)]step one that Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the“Republic of Vietnam,” “served in the Republic of Vietnam.” He did.”

The Court continued, “we see no basis for incorporating a foot-on-land requirement into Regulation 311 [38 CFR 3.311].”  Concluding the Federal Circuit ruled, “international law uniformly confirms that the “Republic of Vietnam” included its territorial sea.”

Contact me with any questions: P: 646-343-7785

 

Gulf War Veterans – Presumptive Service Connection

Veterans who served in Operation Desert Shield and Desert Storm, as well as their families should know about and understand special benefits from VA.  Special and beneficial because under some circumstances veterans are not required to show a link between an illness and service in the military.

Veterans of Operations Desert Shield and Desert Storm, or known as Gulf War Veterans, who are diagnosed with certain health conditions, are presumed by VA to have been caused by military service.  The process for health care and VA disability compensation benefits is faster and easier because VA assumes a link between symptoms and military service.

Unexplained symptoms are presumed to be related to Gulf War military service.  A veteran of the Gulf War is required to have experienced these symptoms for at least six months, and the illness, known as a presumptive illness, had to have appeared during active duty in the theater of operations, known as the Southwest Asia theater of operations – or, no later than by December 31, 2016.  Also, the illness must be at least 10% disabling, as determined by the VA Schedule for Rating Disabilities.

Four Gulf War Presumptive Illnesses:

  • Chronic Fatigue Syndrome: not diminished or relieved by rest, and not caused by another illness
  • Fibromyalgia: widespread pain in the muscles.  Also – insomnia, stiffness in the morning, headaches and memory loss or confusion.
  • Functional Gastrointestinal Disorders: any chronic or recurrent symptoms in the gastrointestinal tract.  The functional part means abnormal functioning of an organ. For instance, irritable bowel syndrome, functional dyspepsia and functional abdominal pain syndrome.
  • Undiagnosed Illnesses: for example – abnormal weight loss, tiredness, cardiovascular disease, joint and muscle pain, headaches, menstrual disorders, neurological and psychological disorders, skin problems, respiratory and sleep problems.

Woman veterans should take note, and learn more.

Veterans of the Gulf War fully earned and deserve help from VA, veterans’ advocates including Veterans Service Organizations [VSOs] and Veterans Law Attorneys, to get these benefits.

Timely and Quality Claims Decisions for Veterans????

VA Changes Forms for Filing Claims

In October 2013, VA proposed to amend its adjudication regulations in 38 CFR parts 3, 19, and 20, to require the use of standard forms to initiate claims for benefits, and to initiate appeals of Regional Office decisions on those claims.  This proposed rulemaking can be found in the Federal Register [http://www.gpo.gov/fdsys/browse/collection] at 78 FR 65490 (December 30, 2013). VA stated that the purpose of this proposed rulemaking was to improve the timeliness of accurate claims adjudication and appeals.

In this regard, VA noted in the proposed rule, that although the rules in effect at the time of the proposed rule permitted claimants to apply for benefits using an “informal claim,” doing so, although convenient for claimants, created ambiguities for VA adjudicators; the result was delayed adjudications of claims, with inconsistent levels of accuracy. VA also stated that its effort to adjudicate claims via an electronic or digital system would be enhanced by the use of standard claims forms, since less time would be required for individual claims adjudicators to review submissions and determine if claimant communications with VA, constituted a claim.

VA, however, also noted that in connection with Web Based, or electronic submissions, that under the proposed rule “Any communication submitted through or action taking place in a claims submission tool within a VA Web-based electronic claims application system that indicates an intent to apply for one or more benefits administered by VA that does not meet the standards of a complete claim may be considered an incomplete claim.”

VA further stated that, “If a complete electronic claim is filed within 1 year of the submission of the incomplete electronic claim, the electronic claim would be considered filed as of the date of submission of the incomplete electronic claim.”

This VA proposed change raised questions, particularly – what happens to veterans who do not have access to a computer, and how does VA go about defining the word, “intent,” as this potentially subjective term is applied to a all veterans and dependents who apply to VA for benefits.

VA published in the Federal Register in March 2015, at 79 FR 57660 (March 24, 2015), the Final Rule, which implements the changes from the October 2013 proposal.

In the Final Rule, VA stated, in part “VA received many comments regarding the elimination of the informal claim under current § 3.155. The majority of the commenters expressed concern that eliminating the current informal claim process would be burdensome to claimants since the favorable effective date treatment of the current informal claim process would not exist for claimants who file paper claims.”

VA responded, agreeing that changes to the proposed rule were necessary, stating that “the ‘‘intent to file’’ process will share similarities with the current informal claim process. However, one major difference is that it requires the submission holding a claimant’s effective date to be in a standard format in order for claimants to preserve the date of a claim for a complete claim that is filed within 1 year of receipt of such intent to file a claim.”

Continuing, VA noted, “VA considers this change responsive to comments urging VA to maintain a way for all veterans to secure an effective date placeholder while the formal application form is completed, and responsive to comments urging that paper and electronic claims receive identical treatment for effective date purposes.”

So, apparently the Final Rule [March 2015] equally recognized the needs all claimants, computer based and paper. VA also drafted the Final Rule to maintain the application of effective dates for all claims submissions, for both electronically submitted and those claims that are submitted on paper, using standard forms that are published by VA.

But, has the elimination of the “informal claim” option really created efficiencies for VA?

Does this new rule really help veterans?

Do not VA claims adjudicators have to receive, and successfully complete predicate training, training that still requires VA employees to discern someone’s “intent?”

And, although headlining by VA, that VA now requires the use of standard claims forms, appears good and positive, more in line with the private sector – is the VA system really faster and more quality driven, because of these new rules?