60-Day Countdown Nears for Paying New 'AO' Claims
Tom Philpott |
July 29, 2010
The Department of Veterans Affairs likely will begin in October to pay thousands of disability claims to Vietnam veterans with ischemic heart disease, Parkinson's disease and B-cell leukemia -- illnesses newly associated with exposure to defoliants, including Agent Orange, used in that war.
A 60-day countdown to the day that VA can start compensating up to 86,000 veterans retroactively for these diseases will begin when VA publishes its final implementing regulation, which could be next week.
Congress sent a strong signal of support to these veterans in July when first the Senate and, on Tuesday, the House passed the Supplemental Appropriations Act of 2010 (HR 4899) which included $13.4 billion for VA to pay the first wave of compensation claims for these diseases.
VA estimates this expansion of Agent Orange-related claims, which VA Secretary Eric Shinseki announced last October, will benefit over time more than 153,000 and cost more than $42 billion in its first decade of payments.
The White House's Office of Management and Budget is near to clearing the VA regulation through its last review hurdle. Once the final regulation is published in the Federal Register, Congress will have 60 days to review and possibly block the regulation.
Sen. Jim Webb (D-Va.) showed his intent to lead that review by adding language to the war supplemental stating that, as the Congressional Review Act requires, none of the $13.4 billion can be spent for 60 days. This gives Congress time to weigh the cost and review the science behind the decision.
Sen. Daniel Akaka (D-Hawaii), chairman of the Senate Veterans Affairs Committee on which Webb serves, has scheduled a Sept. 23 hearing where presumably VA officials and independent medical researchers will explain why these diseases should be compensable for any veteran who suffers from them and served even a day in Vietnam.
Webb has argued the VA is interpreting the Agent Orange Law of 1991 too liberally, linking ailments generally associated with aging to wartime exposures, and committing VA to billions of dollars in added compensation payment, because Congress chose to forfeit its own oversight responsibilities.
Webb notes that the 2001 decision linking Type II diabetes to Agent Orange has resulted in more than 220,000 veterans -- nearly one in 10 who served in Vietnam -- drawing disability compensation for an illness often associated with unhealthy diets, aging or family history.
That Congress kept $13.4 billion in the war supplemental to pay for expansion of Agent Orange presumptive diseases dampens prospects that Webb can block the regulation at this late hour. Since March, VA has been urging veterans with these diseases, or their survivors, to file claims immediately because payment will be retroactive to the claim filing date.
VA lawyers conceded to a federal appeals court last week that the department missed deadlines set in the Agent Orange Act for reviewing the latest science report and for publishing rules to expand claims eligibility to these diseases. Those missed deadlines spurred several advocacy groups for Vietnam veterans to mount a legal challenge to force VA to pay claims now.
VA lawyers are arguing the delays were unavoidable, given the complexity and "budgetary implications" involved. Also, they told the U.S. Court of Appeals for the Federal Circuit that the impact of the missed deadlines is minimized by the fact that payments, when they begin, will be retroactive to the date original claims were filed.
So the same groups who have filed the lawsuit, including Paralyzed Veterans of America and the Non-Commissioned Officers Association, can provide the relief they seek "by encouraging their members to file benefits claims immediately, thereby establishing an effective date for their benefits prior to publication of the final regulation," VA advised the appeals court.
Thomas E. Riley, an attorney for the veterans, conceded that veterans who have filed claims will get retroactive payments and thus are protected. But most eligible veterans haven't filed claims yet, aren't likely to until the regulation is published, and thus are losing out on months of payments.
"Out of 200,000 expected claims," the brief explains, "only 50,000 claims have been received so far. Thus 150,000 Vietnam veterans continue to be prejudiced by the VA's delay, and there is simply no basis for the VA's suggestion that petitioners 'can and have obtained' the relief they seek."
Barton F. Stichman, co-director of the National Veterans Legal Services Program in Washington D.C., also helped prepare the lawsuit. He disagrees with Webb that VA is applying the Agent Orange law more broadly than Congress intended by compensating for diseases often associated with aging. The facts don't support that analysis, Stichman said.
What scientists found for these diseases -- "sufficient evidence to suggest an association" to Agent Orange exposure -- "is the exact same characterization the National Academy of Sciences has used for all the other diseases previous VA secretaries have service-connected," Stichman said.
Also, he said, "there's nothing to indicate Congress was only thinking rare diseases would get this presumptive service connection." In fact, with every "fairly common disease" added to the Agent Orange presumptive list -- lung cancer in 1994, prostate cancer in 1996, Type-II diabetes in 2001 -- Congress not only didn't protest but it soon codified the decisions in the law.
"Whenever the VA added a new disease," Stichman said, Congress "would amend the Agent Orange Act to stick the disease into the law so that no future secretary could change the decision. They put the congressional seal of approval on the decision...That weakens [Webb's] argument."
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