Early yesterday the U.S. Court of Appeals for the Federal Circuit struck down the VA’s policy of denying disability benefits to Vietnam-era blue-water Navy veterans for exposure to Agent Orangeand other herbicides on a presumptive basis. In a case called Procopio v. Wilkie the court decided that veterans who served within the “territorial waters” of Vietnam are now entitled to presumptive service connection for diseases caused by Agent Orange exposure.
Veterans of the wars in Iraq and Afghanistan are becoming increasingly concerned that exposure to toxins produced by burn pits during deployments will parallel the experiences with VA suffered by the Vietnam generation’s Agent Orange. In an effort to help address these concerns, earlier this year Congress passed the Helping Veterans Exposed to Burn Pits Act. This Act marks the first major step by Congress to research how burn pits affected veterans who served in Iraq and Afghanistan. However, while this legislation is another step forward in helping veterans suffering from exposure to burn pits, a true solution for burn pit exposure is most likely still years away.
On December 7, 2018, the US Court of Appeals for the Federal Circuit is scheduled to hear oral arguments in a case called Procopio v. Wilke. Although this case has quietly made its way through the courts, it has the potential to dramatically change the manner in which the US Department of Veterans Affairs addresses service-connected disability benefits claims associated with exposure to Agent Orange.
For the first time, a federal agency recognized that exposure to burn pits used at a US military forward operating base may cause lung disease. This January an administrative law judge (“ALJ”) in the Department of Labor (“DOL”) found that burn pit exposure caused lung disease in a government contractor working in Iraq. Ever since, social media platforms have been abuzz with hopeful chatter that the DOL decision will spark the Department of Veterans Affairs (“VA”) to follow suit and acknowledge the connection between burn pits and negative health conditions. While DOL’s decision evidences a hopeful crack, the dyke has not yet fully burst. Although the ALJ found that a government contractor presented enough evidence to show that exposure to the burn pits caused her lung disease, the DOL decision does not control decisions made by the VA. Veterans with claims pending before VA for that relate to burn pit exposure must continue to gather medical evidence to bring a successful benefits claim — a daunting task when it comes to proving causation.
Following the example set by the Social Security Administration, the US Department of Veterans Affairs has implemented a 2% cost of living adjustment ("COLA") for 2018 for service connected disability benefits. Under this change, monthly payments for a veteran without dependents rated at 100% will be $2,973.86. Changes for all rating levels can be viewed at this link. Although the 2018 COLA was published in the Federal Register on February 18, the rate changes are effective December 1, 2017.
There is no denying that the VA appeals process is in need of reform. As of 2016, veterans wait, on average, four and a half years for their first decision from the Board of Veteran Appeals.
In an attempt to mitigate these wait times Congress recently passed the Appeals Modernization Act of 2017 (AMA). VA is currently working on the regulatory framework, and the full implementation of the law will not happen until 2019 at the earliest, though certain appellants are already being allowed to opt in to this system through the Rapid Appeals Modernization Process or RAMP.