August 01, 2019

The Evolution of VA Programs

Natalie Khawam, Esq., MBA, MS, Whistleblower Law Firm, PA, Tampa, FL

The Veterans Administration (VA) reports there are approximately 19 million U.S. Veterans in the world today. 1 Most of those 19 million Veterans use the VA administrative appeals system to receive disability ratings for their service and to obtain general healthcare and treatment. To address the unique needs of this population, the VA has undergone a series of changes. These changes not only affect the Veteran population, but also Veterans’ families, VA healthcare providers, VA employees, and VA service organizations and attorneys who help Veterans navigate the system.

This article addresses some of the innovative programs within the VA and how those programs have affected Veteran healthcare.

How the VA Works

When a service member retires, is discharged, or leaves the military, he/she is considered a “Veteran.” In recognition of the reality that service to the country involves hardships on the body, Veterans are granted continued healthcare and benefits through the VA. In order to receive disability benefits, a Veteran must have an illness or injury related to his/her service, known as a service-connection. Service-connection disability benefits are granted for specific illnesses and injuries that can be directly linked to their time in service. The VA has various rules and diagnostic codes for each of the injuries and illnesses recognized as a result of service. Once an injury or illness is service-connected, the Veteran receives a rating for that injury ranging from 0 percent - 100 percent, with 100 percent indicating the illness or injury is in its most severe form. Ratings can also be primary or secondary. A primary rating indicates that the injury is directly related to service, while a secondary rating indicates it stems from or is aggravated by a primary injury. For example, sleep apnea can be aggravated by post-traumatic stress disorder (PTSD).

Service-Connection Disability Benefits for Vietnam Veterans

Vietnam Veterans represent the largest cohort of American Veterans in terms of service era.2  For decades, Vietnam Veterans suffered from illnesses due to exposure to Agent Orange and various herbicides the United States used to kill vegetation in Vietnam and South Cambodia. The effects the toxins had on servicemembers exposed to these chemicals were unknown until various public health and medical research indicated that Vietnam Veterans, in particular, had high rates of cancer and that the chemical compounds in Agent Orange were known carcinogens.

After research made the connection between exposure and illness, several lawsuits, such as Nehmer v. U.S. Department of Veterans Affairs3 and Procopio v. Wilkie4 forced the VA to acknowledge that the connection was undeniable. In Nehmer, National Veterans Legal Services Program (NVLSP) attorneys brought a class action lawsuit in 1986 to challenge a VA regulation that stated chloracine is the only disease that scientific evidence shows is associated with exposure to herbicides like Agent Orange used by the United States in Vietnam. In an order issued on May 3, 1989, the district court invalidated the portion of the regulation providing that no condition other than chloracne is associated with herbicide exposure and voided all VA decisions denying benefit claims under the portion of the regulation. Additionally, in 1991, NVLSP’s attorneys negotiated a favorable consent decree with the VA. The Nehmer consent decree requires the VA, whenever it recognizes that the emerging scientific evidence shows that a positive relationship exists between Agent Orange exposure and a new disease to (a) identify all claims based on the newly recognized disease that were previously denied and then (b) pay disability and death benefits to these claimants, retroactive to the initial date of claim.

In Procopio, the court held that Veterans who served in the 12 nautical mile territorial seas of the Republic of Vietnam (known as Blue Water Vietnam Veterans) during the Vietnam era are entitled to the presumption they were exposed to Agent Orange. Previously, the VA only granted that presumption under the Agent Orange Act5 to those who stepped foot on Vietnam soil or served in the waterways in Vietnam, known as Brown Water Vietnam Veterans. The Blue Water Navy Vietnam Veterans Act of 2019,6 signed into law on June 25, 2019 and effective on January 1, 2020 allows Blue Water Vietnam Veterans to also receive this presumption of service-connection disabilities. Through these series of changes, Vietnam Veterans now have presumptive service-connection for cancer and other illnesses. This means that Veterans serving within a certain time and region only need to show service and a diagnosis recognized as being caused by Agent Orange in order to receive benefits.7

The Fully Developed Claims Process

In 2008, after recognizing there were significant delays and backlogs in the VA appeals system, the VA gave formal notice of the Expedited Claims Adjudication Initiative-Pilot Program, informally known as the Fully Developed Claims Process (FDC).8  The Program was implemented in 10 regional offices around the country and allowed a Veteran to gather and submit all of the evidence for the claim, rather than wait for the VA to obtain the evidence. Many attorneys were already doing this at the appellate level, but most organizations and Veterans themselves were relying on the VA to develop the initial claim. Proving a success, the FDC Process is now the most commonly used process for filing disability claims.

Sleep Apnea-Remote Veterans Apnea Management Platform (REVAMP) App 

Approximately one in every five Veterans is diagnosed with obstructive sleep apnea.9  The amount at which these Veterans are compensated varies, depending on their percentage rating. Sleep apnea is one of those conditions that is difficult to obtain service-connection for, except when claiming it as a secondary connection. However, when service-connection is granted, it is one of the easiest to  attain a 50 percent rating, because it merely requires the prescription of a continuous positive airway pressure device (CPAP). This equates to at least $880 per month for the Veteran.

The federal regulation that sets the schedule of disability ratings for respiratory conditions involving sleep apnea syndromes10 requires the use of a breathing device such as a CPAP to be rated at 50 percent. Historically, this focus on the use of a CPAP prevented Veterans who were using other breathing devices to obtain the same benefit for the same illness. In many rating decisions the VA rating officials denied sleep apnea service-connected Veterans a rightful rating of 50 percent simply because of their use of a Bilevel Positive Airway Pressure (BIPAP), Positive Airway Pressure (PAP), or other non-CPAP sleep device.

These decisions mainly occur as a result of the VA rating official’s misapplication of the criterion and the ignorance of the plain reading of the governing regulation. The relevant part of the regulation uses the words “such as,” which promulgates that whatever follows is an example, rather than a required element needed to satisfy the regulation. However, this problem may be resolved through the implementation of the Remote Veterans Apnea Management Platform (REVAMP) App.11

The REVAMP App pairs with a Veteran’s PAP machine and enables the Veteran and a VA sleep specialist to track the Veteran’s sleep data. The Veteran is able to use the App to complete questionnaires regarding his or her sleep patterns and use a built-in message system that allows him/her to communicate securely with the VA care sleep team.12  This 
innovative way of monitoring and treating sleep apnea pinpoints which Veterans need and are using their machines.

Scheduled to be in 135 VA medical centers by 2019,13 REVAMP allows the VA to be able to accurately determine which Veterans require a PAP machine as a medical necessity. PAP machines are one of the most over-prescribed prosthetics in the VA.14  Many Veterans actually struggle with the use of the CPAP or other breathing device and end up discontinuing its use. REVAMP will take into account these factors and allow the VA to reduce the number of prescriptions for PAP machines that are not actually needed. Overall, the implementation of REVAMP has the potential to change the structure of sleep apnea ratings.

Medication and Prescription Buy Back Programs

With approximately 165,000 opioid overdose cases occurring over the last 15 years,15 the VA has an opioid problem. More specifically, it has an opioid over-prescription problem. The average civilian pharmacy processes approximately 8,000 prescriptions a month, which includes opioid prescriptions.16 In contrast, VA North Texas Medical Center Pharmacy Service processes nearly 200,000 prescriptions a month including opioid prescriptions.17 That’s 25 times the average of the civilian facility. Even more disturbing is the reality that this is only one location, in one state. It is natural to assume that these prescriptions are warranted, given the population that they are   prescribed to; however, medical research has indicated that opioids are not superior in treating pain related conditions.18 There is further growing concern relating to the addictive nature of opioids.

The over-prescription was so rampant that in 2018 the government signed legislation requiring VA facilities to submit data to state prescription drug monitoring programs (PDMPs).19 In an effort to reduce the number of opioids actually being prescribed, the VA plans to go a step further than the legislation required by integrating PDMP results with its electronic health record system, My HealtheVet.20

The VA is also addressing problems with opioid prescriptions by utilizing a drug buy-back program. The buy-back program allows the VA to buy back the unused medication from the veteran for $5 - $10 a pill.21 The idea is to get the pills out of the hands of at-risk Veterans and away from other possible abusers. National Prescription Drug Take Back Day,22 sponsored by the Drug Enforcement Administration, generally falls sometime in October, but the VA promotes that drug take back is every day at the VA. Prior to the buy-back program, VA facilities had the proper equipment for disposal of unused and expired drugs23 and those VA facilities that didn’t have the proper equipment for disposal made use of envelopes that allowed for the mailing of the drugs straight to the facility.24 Under the buy-back program, the VA still uses this set-up; however, the buy-back takes things a step further with the monetary incentive for the return of opioids to avoid the risk of on-street sale or misuse.

Other Test Programs Related to Prescription Misuse

In recognition of the opioid problem, the VA is taking a strong stance against overdoses by implementing Narcan stations and deprescribing drug programs and consultations.25 Narcan, or its generic version Naloxone, is a drug commonly used to reverse the effects of an overdose. In February of 2014 the VA launched the Rapid Naloxone Initiative program, which places Narcan kits in all VA AED defibrillator cabinets to address overdose cases.26  The idea is to have Narcan readily available for easy administration. Two doses of Narcan is to be administered, and then the third dosage would be administered by the VA Police upon their arrival. This program has already saved over 100 lives.27 Due to this success, the VA Police are now carrying Narcan on their equipment belts for easy access,28 and the Rapid Naloxone Initiative is also being offered to high risk Veterans.29  Expanding on the success rates, the generic substitute is being provided free of charge in the event of an overdose, enabling a family member or friend to easily administer the drug.

The Deprescribing Program implemented in the Central Arkansas Veterans Healthcare System in 2016 is an  example of regional innovation.30  This program allows clinical pharmacists and physicians the ability to work with Veterans to evaluate the need of each prescribed medication, including opioids, and potentially deprescribe medications if necessary. Veterans that are on too many medications or are on medications that are doing more harm than good may seek deprescribing through the examination tool VIONE (Vital, Important, Optional, Not Indicated, Every Medicine has a diagnosis).31 It is estimated that the VA has saved over $2.3 million through the deprescribing of just a little over 13,000 drugs.32

Child Care

Access to healthcare, even when provided by the VA, isn’t always feasible. A 2011 study indicated that 10 percent of women Veterans had to reschedule appointments because of childcare conflicts.33  In 2011, then Secretary of Veterans Affairs Eric Shinseki called for a Women’s Veterans Task Force to determine the barriers women Veterans faced with access to the VA.34  This mandate led to the 2015 Study of Barriers for Women Veterans. This study indicated that 42 percent of women Veterans reported finding childcare as “very hard” or “somewhat hard” and 62 percent said they would find on-site childcare at VA-run medical centers to be “very helpful.”35 Soon after, the VA launched pilot childcare centers for Veterans who needed childcare while visiting a VA health facility to test the concept of the effectiveness of providing childcare for Veterans.36  The program was a success, and on January 29, 2019 the Veterans’ Access to Child Care Act was introduced. If passed, the Act would permanently provide childcare services to Veterans while receiving healthcare at a VA facility.37

VA Mission Act of 2018

President Trump signed the VA Mission Act into law on June 6, 2018 to improve Veteran access to VA healthcare. Under the Mission Act, Veterans can now see a community provider if they have waited over 20 days for primary care, mental health, and some extended care services. Veterans can also seek community care if the nearest VA facility is a 30 minute or more drive.38 The previous legislation only granted community care if a Veteran lived at least 40 miles or more from the nearest VA facility or the Veteran had waited 30 days or longer for care.39

Conclusion

Just as the Veteran population it serves constantly evolves, the VA must continue to evolve. As can be seen, over time significant changes have occurred within the VA system. While the VA is not perfect, these innovations have changed Veteran healthcare and have truly saved Veterans’ lives. In order to continue to provide the best healthcare possible to this very large segment of the population, the VA will need to continue to greenlight pilot programs and learn from emerging medical research. It is its duty to do so and it is the duty of American citizens to encourage and share the information necessary to do so.

Endnotes

  1. https://www.va.gov/vetdata/docs/Demographics/VetPop_Infographic_2019.pdf.
  2.  https://www.research.va.gov/topics/vietnam.cfm.
  3.  712 F.Supp.1404 (N.D. Cal. 1989)
  4.  913 F.3d 1371 (Fed. Cir. Jan. 29, 2019).
  5.  38 U.S.C.A. § 1116.
  6.  2019 WL 2611107 (White House).
  7.  https://www.nvlsp.org/news-and-events/news-articles/advice-for-blue-water-vietnam-veterans-about-procopio-v- wilkie-decision, https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit.
  8.  https://www.federalregister.gov/documents/2008/04/16/E8-8099/board-of-veterans-appeals-expedited-claims- adjudication-initiative-pilot-program.
  9.  https://journals.lww.com/psychosomaticmedicine/Fulltext/2019/06000/Article_Summaries_for_June_2019_Psycho
  10. somatic.1.aspx.
  11.  38 C.F.R. § 4.97, Diagnostic Code 6847.
  12.  https://mobile.va.gov/app/revamp-veterans.
  13.  https://www.blogs.va.gov/VAntage/52374/vha-innovation-experience-delivers-future-veteran-health-care/.
  14.  https://www.cherp.research.va.gov/CHERP/features/REVAMP.asp.
  15.  https://www.visn23.va.gov/VISN23/features/National_Prosthetic_and_Sensory_Aids_Service_Week.asp.
  16.  https://www.hsrd.research.va.gov/news/feature/opioid_safety.cfm.
  17.  https://www.blogs.va.gov/VAntage/57808/va-north-texas-processes-225000-prescriptions-per-month/.
  18.  Id.
  19.  https://www.hsrd.research.va.gov/news/research_news/opioids-030618.cfm.
  20.  https://www.congress.gov/bill/115th-congress/house-bill/1545 HR 1545.
  21.  https://www.aafp.org/news/government-medicine/20171207vapdmp.html.
  22.  https://www.blogs.va.gov/VAntage/52374/vha-innovation-experience-delivers-future-veteran-health-care/.
  23.  https://www.deadiversion.usdoj.gov/drug_disposal/takeback/.
  24.  https://www.blogs.va.gov/VAntage/52374/vha-innovation-experience-delivers-future-veteran-health-care/.
  25.  https://www.pbm.va.gov/PBM/vacenterformedicationsafety/vacenterformedicationsafetyprescriptionsafety.asp.
  26.  https://www.hsrd.research.va.gov/news/feature/opioid_safety.cfm.
  27.  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5669522/, https://www.blogs.va.gov/VAntage/52374/vha- innovation-experience-delivers-future-veteran-health-care/., https://www.japha.org/article/S1544-3191(17)30025- 0/pdf.
  28.  https://www.blogs.va.gov/VAntage/52374/vha-innovation-experience-delivers-future-veteran-health-care/.
  29.  Id.
  30.  https://www.boston.va.gov/features/Rapid_Naloxone_Initiative_Opioid_Overdose_Reersal.asp.
  31.  https://www.ashp.org/news/2018/03/29/new-medication-review-method-cuts-veterans-rx-load-saves-millions.
  32.  https://www.blogs.va.gov/VAntage/52374/vha-innovation-experience-delivers-future-veteran-health-care/; https://www.ashp.org/news/2018/03/29/new-medication-review-method-cuts-veterans-rx-load-saves-millions.
  33.  https://www.blogs.va.gov/VAntage/52374/vha-innovation-experience-delivers-future-veteran-health-care/.
  34.  https://newsroom.woundedwarriorproject.org/2011-06-16-VA-Launches-Childcare-Pilot.
  35.  https://www.womenshealth.va.gov/docs/Womens%20Health%20Services_Barriers%20to%20Care%20Final%20Rep
  36. ort_April2015.pdf.
  37.  Id.
  38.  https://www.va.gov/opa/pressrel/pressrelease.cfm?id=2134.
  39.  https://www.govtrack.us/congress/bills/116/hr840.
  40.  https://federalnewsnetwork.com/veterans-affairs/2019/05/mission-acts-new-community-care-program-ready-for- prime-time-va-says/.
  41.  Id.

About the Author

Natalie Khawam is a graduate of Georgetown University Law Center in Washington, DC. In addition to her law degree, she also holds a Master of Business Administration (MBA) and a Master of Science (MS) degree. She created the Whistleblower Law Firm in Tampa, Florida after working in both the federal government and private sector for over 20 years. She has successfully represented her clients in many legal victories and attained significant legal settlements. Her high-profile cases are frequently featured in the media and receive nationwide press coverage.

Our Veterans and their families are of the upmost importance to Ms. Khawam. She firmly believes that it is her duty to help protect the brave heroes who fought to protect our life and liberty. She is actively working on legislation in DC to help protect our Military and Veterans. She may be reached  at nataliek@813whistle.com