OIG: Vietnam Vets Screwed Out Of $1B In Presumptive VA Benefits

A new watchdog report shows the Department of Veterans Affairs (VA) may owe some disabled Vietnam veterans up to $1 billion in unadjudicated benefits for presumptive conditions.

Vietnam veterans implicated would have bladder cancer, hypothyroidism, and/or parkinsonism diagnosed in the record with a pending or completed claim for the condition. Of a sample, the Office of Inspector General “estimated 36,125 veterans who definitively served in Vietnam were entitled to approximately $836.8 million in unpaid benefits.”

The OIG summary of the report shows the “questioned costs” from the screw job being $1,008,400,000.

With Veterans Benefits Administration (VBA) undersecretary for benefits Joshua Jacobs at the helm, VA failed to correctly process Nehmer claims related to the new presumptions created by the National Defense Authorization Act (NDAA) in 2021.

So, tens of thousands of Vietnam veterans missed out on $1 billion in presumptive benefits because VBA failed to use agency health records when considering entitlement after the NDAA since 2021.

No doubt, the actual value of benefits not timely paid would be much higher if the VA evaluated the files of all Vietnam veterans with or without the specific claims being filed.

The report, released June 27, 2024, the same day as the presidential debate, received little attention.

VA Screwing Vietnam Vets For 5 Decades

Remember, in a post-Nehmer world, when regulations add new presumptive conditions impacting Vietnam veterans, VA must search its records to find eligible veteran claimants and award benefits without requiring action by the claimant.

This is a thing VA is required to do, and VA blew it, at least in part. And, they are supposed to use our data systems to review all relevant evidence in the agency’s possession.

According to the VA Office of Inspector General summary, “A VA senior management advisor stated VHA records were not involved in readjudication determinations because VBA did not have ready access to VHA diagnosis data.”

So, VBA did not have access to Veterans Health Administration (VHA) medical data? How is that possible in this modern electronic VA?

VA executives previously boasted to Congress for over a decade about advancements in database systems to prevent problems exactly like this from happening, and American taxpayers paid government contractors billions to make it happen, right?

Didn’t we pay for a modern integrated record system to allow VBA access to VHA health records in real-time for benefits adjudications?

Apparently, VA officials implicated did not have know-how or the want-to needed to ensure these elderly and severely disabled veterans received a fair adjudication under the law using available medical records.

Adding insult to injury, OIG also estimated VBA failed to send out notification letters to 88,847 eligible or potentially eligible veterans from the VHA dataset evaluated of the total population of 90,800.

That is a notice error rate of nearly 98 percent. And this error had an adverse impact, “Because VBA did not send these notification letters, the affected veterans or their survivors were not made aware of their potential entitlement to retroactive compensation benefits.”

Great job, VBA undersecretary for benefits Joshua Jacobs.

Related: Joshua Jacobs Confirmation On Hold

OIG indicated:

“A senior management advisor in VBA’s Office of Field Operations told the OIG team that the data request VBA used to identify Nehmer class veterans for readjudication under the NDAA did not involve VHA records to determine if veterans had a diagnosis of an NDAA-covered disease.”

Since when did VBA stop using VHA records to evaluate disabilities?

The report stated senior management advisor informed OIG that “VHA records were not involved in readjudication determinations because VHA diagnosis data had not been routinely available to VBA for consideration.”

Since when?

This one falls back onto the lap of Jacobs whose prior employer was awarded a $1 billion contract to help VBA process benefits claims.

Let me say it a different way.

Wasn’t his old employer Booz Allen Hamilton paid handsomely to help implement the software systems and procedures needed to timely process Nehmer claims?

Related: VA Awards $1.1B Contract To Booz Allen Hamilton

The OIG report also shared a nuance to the entire debacle created by the agency’s own standard operating procedures (SOP) for potential Nehmer claims.

In 2023, the SOP allowed processors to skip evaluating a potential claim for Nehmer if the pending claim was not one for the NDAA-covered diseases.

Meaning that VA staff was not evaluating claims processed or pending before January 1, 2021. Oopsy.

OIG stated, “By skipping this step, staff may fail to screen veterans for potential eligibility for benefits under the Nehmer consent decree and subsequent court orders.”

This falls into the hear no evil, see no evil, camp. If the claim was not pending in 2021 or later, agency staff would not evaluate past denials or inferred claims for the three conditions spanning five decades.

Accountability? Who’s going to get fired? Yeah, right.

I digress.

Next Steps For VA

In response to the OIG investigation, VA now promises to review nearly 70,000 veterans to correct the errors valued at up to $1 billion in benefits not paid over the past few years.

I think the unasked question here is, ‘How much did VA avoid paying veterans who died since 2021?’

Remember, elderly veterans with bladder cancer may not have much time left. Justice delayed three years is frequently justice denied for these veterans.

Tragically, these same veterans were wrongly denied adequate benefits and health care from VA since the Vietnam War because our government refused to timely admit how toxic the herbicides were that we sprayed in Vietnam and frequently on our own troops.

The type of error also has me guessing. If VA was not showing medical records to decisionmakers issuing decisions, who and what was rendering the decisions?

Could this have anything to do with VA’s recent rollout of Artificial Intelligence [sic] when adjudicating benefits claims under Jacobs’ leadership?

Here’s a summary of what OIG found:

1. The OIG looked at records of 86,894 Vietnam veterans who had diseases related to their service. About 36,125 of these veterans should have received $836.8 million in benefits, but they didn’t. This happened because the VBA didn’t use medical records from the Veterans Health Administration (VHA) in their checks.
2. Another group of veterans was identified through Camp Lejeune service records. Out of 226 veterans, 102 should have received about $7.5 million in benefits, but they didn’t.

The VA agreed to fix some of the problems the OIG found. These problems started when the 2021 NDAA added new diseases—bladder cancer, hypothyroidism, and parkinsonism—that are considered connected to herbicide exposure during the Vietnam War. The VA promised to review claims from about 70,000 veterans following the report.

What VA Needs To Fix

1. Better Methods: The VBA needs to use better methods to find veterans who should get benefits, redo their claims, and send letters to veterans who might qualify for back pay.
2. Better Training: Claims processors need to be trained to spot claims that should be reviewed again.
3. Updated Rules: The VBA should update their rules so that medical records are checked for diseases related to herbicide exposure, even if the current claim isn’t for one of those diseases.

VA Disputed OIG Recommendation

The agency disputed the first recommendation proposed by OIG.

Remember, this is how VA operated before the Supreme Court overruled Chevron last month. Our nation’s courts will no longer defer to an agency’s expertise when adjudicating matters in the way it did since 1984.

According to the report, here is why:

“VBA, through the under secretary, for benefits, did not concur with the first recommendation to identify, readjudicate, and send outreach letters to potential Nehmer class members who could qualify for benefits under the NDAA. VBA claimed the OIG incorrectly concluded that medical records anywhere in VA’s healthcare system at the time of a prior claim can trigger the requirements of the stipulation even if those records were not relevant to the claim or associated with the claim file. VBA contested the OIG’s reliance on the VA adjudication manual over the Nehmer consent decree, on the basis that the decree’s terms and subsequent court orders interpreting it take precedence over the VA manual. VBA also asserted that the OIG erred by including an unknown number of veterans who did not serve in Vietnam in its report findings.”

So, VA disagreed with OIG. The latter believed the agency should follow its own VA adjudication manual. The OIG report continued to explain:

“However, VBA did say in the response that it plans to establish a work group to determine how to leverage improved methods of identification, within the parameters of Nehmer identification established within the consent decree. Although VA did not concur with the first recommendation, this action by VBA to identify all eligible veterans to ensure veterans receive benefits to which they may be entitled meets the intent of the first recommendation. The OIG will monitor and follow up on VA’s proposed actions.”

Was this a reasonable concession by OIG? How will VA’s new “work group” leverage improved methods and ensure impacted veterans are notified?

More On Nehmer Claims

The report provides a solid summary of Nehmer and its impact on Vietnam veterans who were screwed following the recent NDAA:

“Nehmer v. US Department of Veterans Affairs was a 1986 class-action lawsuit in which Vietnam veterans and their survivors alleged VA had improperly denied their compensation claims for service-connected disabilities caused by herbicide exposure during military service. In 1991, VA was required to readjudicate claims filed by Vietnam veterans. When regulations add new presumptive diseases of service connection, VA must search its records to find eligible claimants and award benefits, without requiring action by the claimant. The 2021 NDAA added three diseases (bladder cancer, hypothyroidism, and parkinsonism) that carry presumptive service connection due to herbicide exposure during the Vietnam War. In 2021, VBA stated VA would review claims for Nehmer eligibility from approximately 70,000 veterans and survivors in its implementation of the NDAA, and additional veterans might be identified through other document reviews. This review highlights deficiencies in fully identifying affected veterans.”

VA OIG Wrap-up

If you or a loved one may be impacted as a Vietnam veteran or Camp Lejeune veteran, be sure to review this screw up closely.

If you think you might be owed benefits, stand up and fight for what you deserve. Make sure you get the compensation you earned. Immediately reach out to a veteran law attorney or veteran service organization you trust for help.

Read Full Report: VBA Did Not Identify All Vietnam Veterans Who Could Qualify for Retroactive Benefits