BLUE WATER NAVY VETS WIN AGENT ORANGE BENEFITS!

By NIKKI WENTLING | STARS AND STRIPES
Published: March 26, 2019

WASHINGTON — Department of Veterans Affairs Secretary Robert Wilkie recommended the Justice Department not contest a federal court ruling that could extend benefits to Vietnam veterans who served on ships offshore during the war, he announced Tuesday.
The Court of Appeals for the Federal Circuit ruled 9-2 in January that “blue water” Navy veterans are eligible for benefits related to the chemical herbicide Agent Orange. The decision could pave the way for disability compensation for tens of thousands of veterans who served aboard aircraft carriers, destroyers and other ships but had been deemed ineligible for the same disability benefits as those who served on the ground and inland waterways.
The Justice Department and the VA, which disputed the veterans’ eligibility for the benefits, could challenge the decision before April 29 by seeking a review of the case from the U.S. Supreme Court.
Wilkie said publicly for the first time Tuesday that he opposed a Supreme Court review. The announcement came during his testimony to the Senate Veterans’ Affairs Committee.
 “Is it true, Secretary Wilkie, that the blue water Navy court decision isn’t being challenged?” asked Sen. Johnny Isakson, R-Ga., the chairman of the committee.
Wilkie replied, “That would be my recommendation from VA.”
His stance differs from last year, when Wilkie fought efforts in Congress to extend benefits to blue water Navy veterans. At the time, he cited high costs and insufficient scientific evidence linking the veterans to Agent Orange exposure.
Since the court ruling in January, some lawmakers and veterans organizations have urged Wilkie and President Donald Trump to end the court battle.
Wilkie announced during his testimony before the Senate Veterans’ Affairs Committee on Tuesday that he recommended the Justice Department not pursue the case.
Sen. Mazie Hirono, D-Hawaii, asked him to “use your persuasive powers to make sure that happens.”
“I think your recommendation will be key,” said Sen. Richard Blumenthal, D-Conn. “I would express … that the recommendation be adopted and endorsed heartily by this committee to bring fairness and justice to our blue water Navy veterans. It would culminate a bipartisan crusade.”
Some veterans have fought for years to secure the benefits.
The subject of the Court of Appeals case was Alfred Procopio Jr., 73, who served on the USS Intrepid during the Vietnam War. Ten years ago, the VA denied his disability claims for diabetes and prostate cancer.
At issue in his case was interpretation of the current law, which allows easier access to disability benefits for veterans who “served in the Republic of Vietnam” and suffer from any illness on a list of those linked to Agent Orange. The herbicide has been found to cause respiratory cancers, Parkinson’s disease and heart disease, as well as other conditions.
The court determined that territorial seas should be included in the definition of “Republic of Vietnam” — a point the government disputed.

Retiring Veterans Court judge calls VA appeals system a 'tragedy'

(Note: Appeals to the VA Board of Veterans Appeals now take between three and seven years. The Court of Appeals for Veterans Claims can take another three or more years to hear a case. Most often, cases decided in the veteran's favor are returned to regional offices where more delay eats up yet more time.)

By NIKKI WENTLING | Stars and Stripes | Published: March 12, 2019

WASHINGTON — The retiring chief judge for the U.S. Court of Appeals for Veterans Claims told lawmakers Tuesday that the Department of Veterans Affairs appeals system is “ancient” and “inefficient” and in need of drastic change.

While testifying before a House Appropriations subcommittee, Chief Judge Robert Davis said the pressure on VA employees to get through a large backlog of benefits claims leads to poor decision-making and a high number of appeals. Davis, a Navy veteran, has held a seat on the Court of Appeals for Veterans Claims for nearly 15 years. The court, often referred to as “Veterans Court,” provides veterans an impartial review of decisions made by the VA Board of Veterans’ Appeals.

“I think it’s a tragedy, the way the system operates currently,” Davis said. “I think we’ve been tied to a structure that is ancient and inefficient. The sooner Congress and all of us in this area look at this system from a 50,000-foot level and say, ‘We need to make these kinds of adjustments,’ the sooner we’ll be able to meet the needs of our veterans in a much better way.”

Davis has been critical of the VA system. The topic was brought up Tuesday by Rep. Matt Cartwright, D-Penn., who cited an August article by the Wall Street Journal in which Davis criticized the appeals process as “horribly flawed.” “We can’t ignore that when you come here to testify, chief judge,” Cartwright said.

‘Cautiously optimistic’ about new law

Davis elaborated Tuesday on his comments to the Wall Street Journal. He said he remains skeptical of a new law implemented last month that VA officials promised would allow veterans to receive decisions on their benefits claims in days or months, instead of years.

The new law, titled the Veterans Appeals Improvement and Modernization Act, was approved by Congress in 2017 and went into effect Feb. 19. It involves multiple avenues for veterans to appeal their claims, including an option to get a review from a higher-level adjudicator or go directly to the Board of Veterans’ Appeals.

Under the old system, veterans waited three to seven years to reconcile their appeals. The new one could get veterans through the process in as few as 125 days, VA officials vowed. Officials also said the new system would help cut down the backlog of appeals, which included 402,000 cases as of last month.

“I’m cautiously optimistic that this modernization act may help the system, but in my view, congressman, it is tinkering around the edges, when a larger fix is needed,” Davis said. “And it’s a fix that might be viewed as radical by some.”

When pressed for specifics, Davis suggested using mediation to negotiate a settlement between the VA and veterans or providing them general pensions. He said there were “a lot of possibilities” that he believed should be discussed with the VA secretary.

Once he retires from the court, Davis agreed to discuss the issue further with Rep. Debbie Wasserman-Schultz, D-Fla., who is chairwoman of the House Appropriations Subcommittee on Military Construction, Veterans Affairs and Related Agencies.

Court experiences a ‘second surge’

Davis appeared before the subcommittee Tuesday to discuss the court’s budget request for fiscal year 2020, which totals $35.4 million. The proposed amount — released Monday as part of President Donald Trump’s budget plan — didn’t increase from the fiscal year 2019, though Davis said the court experienced a surge of work in 2018.

The court had its first surge in 2009, when its case load increased from about 2,000 cases each year to more than 4,000. That year, Congress temporarily approved two more judges to join the court, bringing it from seven judges to nine.

Davis described a “second surge” last year, during which the case load rose from about 4,000 to more than 6,800.

The VA touted last year that the Board of Veterans’ Appeals had worked through a record number of cases – about 85,000, up from 52,000 cases the previous year. Davis attributed the surge at the Court of Appeals for Veterans Claims to the board’s increased pace.

He warned appropriators Tuesday that the court might soon need congressional approval for an additional two judges, bringing the total to 11. Of the nine judges now on the court, two – including Davis – are scheduled to retire at the end of their 15-year terms in December 2019.

“We’re watching our numbers carefully to track the very real possibility that nine judges may not be sufficient to keep pace with this growth trend,” Davis said.

wentling.nikki@stripes.com
Twitter: @nikkiwentling