VeteransFirstActYesterday, the leaders of the Senate Committee on Veterans Affairs held a press conference to announce that they had reached an agreement on a piece of legislation that would bring changes to many areas of the VA. The bill, known as the “Veterans First Act,” is the product of intense negotiations among Senators from both parties in recent months. The 391-page bill contains provisions dealing with accountability, healthcare, compensation, education, homelessness, and more. Below, we’ve summarized some of the key provisions.

Accountability

If you’ve been following the various VA scandals in recent years, then many of the bill’s provisions concerning accountability may sound familiar to you. The Veterans First Act would give the VA Secretary more authority to hire and fire employees, and allow him to make his personnel decisions more quickly. It would also limit the amount of time that employees can be placed on “paid administrative leave” to prevent bad actors from collecting government salaries during lengthy investigations. Under the bill, healthcare executives who lead a VA medical center would be entitled to significant pay raises to match what they would earn in the private sector. Perhaps most interestingly, the bill would establish an independent office within the VA known as the “Office of Accountability and Whistle-blower Protection.”

Health Care

Regarding healthcare, the proposed legislation would require the VA to make prompt payment to private facilities that have agreed to participate in the Veterans Choice program. This provision was likely included in response to the many headlines alleging that the VA owes millions of dollars to outside facilities, and that some private providers were electing to abandon the program altogether because they weren’t being paid. The bill would also expand the rules allowing family members to serve as caregivers for severely disabled veterans, and make it easier for the agency to hire mental health professionals. Additionally, the bill would attempt to address the over-prescription of opiate painkillers.

Disability Compensation

The proposed legislation would require the VA to launch a voluntary pilot program under which veterans who opt-in are forbidden from submitting additional evidence after filing a Notice of Disagreement. In exchange for giving-up this important right, veterans in the pilot program would skip the issuance of a Statement of the Case and go straight to the Board of Veterans’ Appeals where they would receive a final decision within one year of filing their Notice of Disagreement. The bill would also make it easier for the survivors of recently deceased veterans to receive benefits, and would increase the oversight of VA Regional Offices by permitting reviews by the Government Accountability Office.

Education & Employment

The Veterans First Act would expand the availability of Post-9/11 GI Bill funds to mobilized reservists, and authorize additional educational benefits to the spouses and children of veterans. It would also permit the VA to reinstate a veteran’s educational benefits in the event that the school the veteran was attending permanently closes. The bill would also require the VA to coordinate with the Department of Labor and state agencies to help increase the availability of jobs for veterans, and would require a non-governmental study of job counseling, training, and placement services for veterans.

Homeless Veterans

Homelessness among veterans has been a widely-discussed topic in recent years, and the proposed legislation aims at further reducing the number of veterans without a roof over their heads. Among the provisions of the bill is one would would expand the definition of “homeless” to include those veterans who are escaping from domestic violence, thus increasing the availability of benefits and services to such veterans. The bill would also expand the eligibility of the Department of Labor’s Homeless Veterans’ Reintegration Program and authorize the VA to form partnerships in order to provide legal services to homeless veterans.

U.S. Court of Appeals for Veterans Claims

The proposed legislation would once again reauthorize the temporary expansion of the Court from seven to nine judges through the end of the year 2020. This represents a compromise from what has been proposed by several lawmakers and veterans’ advocates which would make the increase to nine judges permanent. Additionally, the Veterans First Act would change some rules concerning the availability of certain benefits for judges, and would alter the manner in which the Chief Judge of the Court was determined.

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Overall, we are pleased with the provisions of the proposed legislation. We will say that we were somewhat surprised that the bill does not contain a complete overhaul of the Veterans Choice program, which has drawn much scrutiny for its failure to reduce the delays veterans face in receiving healthcare. The expansion of the Veterans Court is an important step, but we’re disappointed that Congress hasn’t decided to require more decision-makers in the locations they are most needed: at the Board of Veterans’ Appeals. Finally, we’re skeptical of the proposed pilot program for streamlining the appeal process because, simply put, it misidentifies the problem. The issue with appeals has never been that veterans are bogging-down the process by submitting new evidence, its that the VA doesn’t have adequate procedures or sufficient staff to handle the number of claims it receives. Thankfully, for now at least, the Pilot program is only a test.

The bill represents only a proposal from the Senate, and differs in some key ways from what has been proposed over in the House. We expect there to be some changes to the ultimate legislative package that reaches the President’s desk, and we will do our best to keep you posted on future developments.

It all started innocently enough. In 1984 a veteran sought service connection for “residuals of a head trauma” sustained as the result of a car accident in the military. Thereafter, he was granted service connection for “head trauma with post traumatic headaches.” Fifteen years later he attempted to reopen the claim and asserted that “memory loss and depression” were among the “residuals of head trauma” he had claimed in the early 1980’s. After being granted service connection for a psychiatric disorder related to his head trauma, he argued that he was due back-pay on the claim because he had originally filed it in 1984 and the VA had never issued a decision on the psychiatric disorder when it decided the initial claim relating to head trauma years earlier.

After the argument was rebuffed by the Board and the Veterans Court, he appealed to the U.S. Court of Appeals for the Federal Circuit where, like a snowball rolling down a hill, his claim morphed into something frightening. The Federal Circuit held that the veteran was not entitled to back pay because his 1984 claim for a psychiatric disability related to head trauma had been silently denied when the Regional Office granted service connection for “head trauma with post traumatic headaches” without mentioning a psychiatric disorder. The Federal Circuit explained that when a “veteran files more than one claim with the [Regional Office] at the same time, and the [Regional Office’s] decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied.”

The rule announced by the Federal Circuit has come to be known as the “implicit denial” doctrine. The implicit denial doctrine states that “a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision.” In more simple terms, the implicit denial doctrine allows the VA to deny your claim without telling you. This rule is, without question, one of the most unfortunate developments in veteran’s law of the past several decades and, despite the best efforts of veteran’s advocates, continues to wreak havoc on meritorious claims for VA benefits. The mere existence of the implicit denial doctrine is wrong for a number of reasons.

First, the implicit denial doctrine is abhorrent to the Constitution. The Fifth and Fourteenth Amendments protect a citizen’s “Due Process” rights, and entitle citizens  to “notice and an opportunity to be heard” before the government deprives them of “life, liberty or property.” In the context of VA claims, Due Process should ensure that veterans are notified of the denial of their claim and that they are permitted to respond to the denial by filing an appeal. But it does not. Several groups of judges have specifically said that there are circumstances where a “reasonable person” might receive a decision explicitly denying a single claim and understand that the decision also constitutes the denial of another claim.

To see why a “reasonable person” would never understand a decision to deny more than what it says, one need only examine the information provided to veterans who receive a denial from the Board. For at least the past two decades, the Board has informed veterans who receive a denial that it “is the final decision for all issues addressed in the ‘Order’ section of the decision.” Because an implicit denial is necessarily not explicit, a claim which is being implicitly denied cannot appear in the “Order” section of a Board decision. This begs the question: Would a “reasonable person” who receives a Board decision which states that it is only a final decision on issues listed therein deduce that it is also a final decision denying another claim which is not mentioned? The answer to this question is a resounding “no,” and for that reason the implicit denial doctrine deprives veterans of their Due Process rights.

More fundamentally, the implicit denial doctrine is incompatible with the veteran’s benefits system because it is far too complicated. Indeed, the Veterans Court has defined a poorly-understood and legally-complex four-part test to determine whether an implicit denial has occurred. As the Supreme Court said, “Congress has expressed special solicitude for the veterans’ cause” by establishing an “adjudicatory process that is not truly adversarial” and making “clear that the VA is not an ordinary agency.” Indeed, “the VA differs from virtually every other agency in being itself obliged to help a claimant develop his claim… and a number of other provisions and practices of the VA’s administrative and judicial review process that reflect a congressional policy to favor the veteran.” Stated plainly, given that Congress could not have wanted to create hurdles or traps for unwary veterans seeking benefits, it is unimaginable that Congress would have intended to create an implicit denial doctrine.

And Congress is the key to solving this situation. The implicit denial doctrine was not created by our elected representatives but by the courts. It is nothing more than a legal fiction, and Congress has the power to change it. Not too many years ago, the Veterans Court created a requirement that a claim needed to be “well grounded” before the VA was required to assist the veteran by obtaining evidence to support the claim. Displeased by this, Congress passed a law and told the court to knock-it-off saying that they were “very concerned over this situation and the resulting potential unfairness to veterans.” The implicit denial doctrine, which allows the VA to deny a veteran’s claim without telling him, should shock the sensibilities of our elected representatives. It is time for Congress to step-up and undo the damage caused by the judicially-created “Implicit Denial” doctrine.

Recently Judge William A. Moorman  of the U.S. Court of Appeals for Veterans Claims assumed “Senior Status”—a form of semi-retirement. With Judge Moorman’s departure from the Court, the number of active judges has been reduced to eight . Despite the growing number of appeals filed each year, Judge Moorman will not be replaced with a new judge unless Congress takes action.

To understand why Judge Moorman will not be replaced, one needs to look at the law. As designed by Congress, the Veterans Court is supposed  to be made up of “at least three and not more than seven judges.” However, due to the ever-increasing number of appeals, Congress passed a law  several years ago allowing the number of judges to be increased to nine. That increase was not permanent, and specifically prevented the appointment of any new judges to replace those who retire unless the number of active judges had fallen below seven. This means that Judge Moorman will not be replaced, nor will the next judge who retires or reaches the end of his or her term.

The potential consequences of allowing the number of judges on the Court to decrease are many. For instance, as VA works to whittle-down the backlog of claims, this will create more appeals which are destined to be heard by the Board and eventually the Court. As the number of appeals filed to the Court will surely increase, decreasing the number of judges to decide those appeals hardly seems like a wise move for Congress to make. Indeed, the filing of more appeals to a court made-up of fewer judges will inevitably lead to longer waits for veterans to have their appeals decided.

During a recent hearing, Senator Jeanne Shaheen of New Hampshire noted  that “over the past four years, the number of disability claims appeals received by the Board has increased 65 percent.” She argued that Congress should act to permanently authorize there to be nine judges on the Veterans Court, saying that “as we see unprecedented and unrelenting growth in the backlog of appeals, now is not the time to reduce our capacity to pre-2002 levels.” In a statement submitted to the Senate Committee on Veterans’ Affairs, Chief Judge Lawrence B. Hagel of the Veterans Court echoed Senator Shaheen’s comments regarding an onslaught of new appeals, stating  that “it seems likely… that the number of appeals filed at the Court will also rise further and stay high.” Chief Judge Hagel similarly urged Congress to authorize a permanent increase in the number of judges on the Veterans Court.

Currently pending in Congress is Senate Bill 1754, also known as the “Veterans Court of Appeals Support Act of 2015.” This bill would authorize the permanent expansion of the Veterans Court to nine judges. It would insure that the Veterans Court would be able to decide appeals more quickly, meaning that the delays encountered by veterans who appeal VA denials would not increase. Everyone here at brokenVA believes that this bill should become law, and you should support it too. To show your support, please click here  to find the contact information for your senators and urge them to vote in favor of Senate Bill 1754.