On March 3, 2022, the House of Representatives passed a comprehensive bill (Honoring Our PACT Act of 2021, H.R. 3967) on Veterans toxic exposures. All Democratic House member and 34 Republican House members voted for the bill. H.R. 3967 is supported by 42 Veterans and Military Service Organizations that represent millions of Veterans who pay taxes and vote.
H.R. 3967 faces an uncertain future in the Senate, which passed a bill of more limited scope (Health Care for Burn Pit Veterans Act, S. 3541) by voice vote on February 22, 2022. Like H.R. 3967, S. 3541 calls for allowing post 9/11 combat Veterans to enroll in VA health care even if they missed a statutory enrollment deadline. Like H.R. 3967, S. 3541 also mandates certain training, studies, and analyses of toxic exposures that are described below. Each bill requires the VA to waive copayments for health care for the the illnesses presumed in that bill to be associated with specific toxic exposures.
This article explains how each section of the more comprehensive bill passed by the House (H.R. 3967) will improve Veterans’ health outcomes. It also explains the overlap between the House and Senate bills. The aphorism “Anyone who loves the law or sausages should never watch either being made” applies here. Brave souls who want to read the actual wording of the sections of the bill can click on the section number links below.
Title I Expands Health Care Eligibility for Toxic-Exposed Veterans
Section 102 allows the VA to provide health care to “toxic-exposed” Veterans who participated in a “toxic exposure risk activity” while serving on active duty or training. Section 103 explains how eligibility for health care is expanded for “any illness” for such toxic-exposed Veterans who were deployed in named overseas operations of the Global War on Terrorism and who were discharged on or after August 2, 1990. Eligibility is phased in over a six-year period, 2024 to 2030 (modifiable by the VA), depending on the discharge date of the Veteran. The phase-in period addresses concerns expressed by some Republican members that Section 102 may cause the VA health care system to be overwhelmed or lack sufficient resources to accomplish the purposes on H.R. 3967. The bill also mandates that the VA develop a plan to conduct an outreach program to inform Veterans of their health care eligibility. This aspect of H.R. 3967 is part of the Biden Administration’s effort to ensure that more Americans are covered by affordable health insurance and to improve American health outcomes. S. 3541 does not call for a phase-in period.
Section 104 mandates an initial assessment by the VA of health care resources required by Section 103, the establishment of information systems to assess the implementation of Section 103, and annual reports to Congress. Section 105 mandates that the VA establish a policy that any Veteran who served in specified overseas operations of the Global War on Terrorism during specified dates is eligible for breast cancer mammography screening. A report by the VA on breast cancer rates of Veterans deployed to certain areas is also mandated.
Section 111 expands the period of eligibility for VA health care for “any illness” for specified combat Veterans who were discharged after September 11, 2001, for a ten-year period after they were discharged. It also establishes a one-year period starting on October 1, 2022 for such Veterans to enroll in VA health care if they missed the old enrollment period deadline. It mandates that the VA develop a plan to conduct an outreach program to inform Veterans of this new health care eligibility and that the VA report to Congress on Veteran enrollments during that one-year period. This aspect of H.R. 3967 is also part of the Biden Administration’s effort to ensure that more Americans are covered by affordable health insurance and to improve American health outcomes. Section 112 also requires that the VA authorize emergency health care in non-VA facilities for certain covered Veterans if an application for such authorization is made during a period established by the VA, such period not to be less 96 hours after admission.
Title II Establishes a Formal Advisory Committee on Toxic Exposure and a Formal Process for Evaluation of Its Recommendations
Section 202 mandates the establishment of a nine-member Formal Advisory Committee on Toxic Exposure with five of the nine members being appointed by the VA. The Committee is to assess cases of Veterans or their dependents and on a periodic basis assess the Individual Longitudinal Exposure Record (ILER) system that has been under development since 2013 in support of President Clinton’s Presidential Review Directive-5. [The ILER is a web-based application with the goal of providing the DoD and the VA the ability to link an individual to toxic exposures, to improve the efficiency, effectiveness, and quality of health care.] The Committee is also tasked with making research recommendations and providing opportunities for Veterans, their families, veterans service organizations, the general public, and other Federal agencies and departments to provide comments to the Committee. A similar concept was recommended by the National Academies in its 2008 report.
This section also mandates that the Committee report annually to the VA Secretary and Congress recommendations for research and legislative or administrative action and that the VA Secretary respond with findings, opinions, and whether the VA will conduct any recommended research. This aspect of the bill addresses the fact that recommendations for research on whether certain toxic exposures increase the risk that Veterans will be diagnosed with certain diseases are regularly made in reports by the National Academies and then apparently ignored by decision makers.
This section also requires that the VA establish a formal evaluation process (modifiable by the VA Secretary with congressional oversight) for evaluating the Committee’s recommendations. The element of the VA that conducts the formal evaluation is charged with determining the strength of evidence for a positive association between an identified toxic exposure and an identified illness. Within 120 days after the date on which each formal evaluation is commenced, the element of the VA that conducts the evaluation is required to submit to the VA Secretary a recommendation with respect to establishing a presumption of service connection for the toxic exposure and illness, or modifying an existing presumption of service connection. Not later than 160 days after the date on which the VA Secretary receives a recommendation, the element of the VA that conducts the evaluation to establish or modify a presumption of service connection, the VA Secretary is required to “fish or cut bait,” that is, to commence promulgating regulations concerning the presumption or publish in the Federal Register the reasons why the presumption is not warranted. This section addresses the fact that the mandate (under the Agent Orange Act of 1991) that the VA Secretary make determinations about whether a presumption of service connection is warranted for Vietnam-era Veterans for diseases covered in the reports of the National Academies within 60 days ceased to be effective (sunset) on September 30, 2015.
Thus, H.R. 3967 closes a major loophole in the current VA process for evaluating and making decisions about disease presumptions. As an example, we petitioned the VA Secretary under U.S.C. § 553(e) in March 2017 to add MGUS to the Agent Orange presumptive disease list based on the findings of the National Academies and have not received a response from the VA Secretary to that petition five years later. (We do, however, greatly appreciate the VA’s asking the National Academies to review the research upon which our petition was based and the Academies’ finding that a positive association between exposure to Agent Orange and MGUS does in fact exist). Another example is the reported obstruction by the OMB of a 2017 VA decision to include new diseases on a list of conditions presumed linked to Agent Orange. Section 203 mandates a reevaluation of disability compensation determinations when US law changes and the conduct of outreach to inform relevant Veterans that they may elect to have a claim reevaluated.
Under current law, President Biden’s VA Secretary has relatively rapidly added the diseases asthma, rhinitis, and sinusitis (that began within 10 years of their separation from service) to the presumptive diseases list for certain Gulf War and post-9/11 Veterans. He has also proposed to add certain rare respiratory cancers to that presumptive diseases list under current law. If necessary, the members of the Senate and House conference committee could tweak H.R. 3967 to ensure that these and other presumptive diseases proposed by the VA Secretary at the time time the conference committee meets are “grandfathered” into the conference committee’s version of the bill. Further delay by the Senate is not an acceptable option to Veterans, their dependents, and their survivors.
Title III Presumes a Service Connection for Claimed Disabilities of Gulf War and Post 9/11 Toxic-Exposed Veterans
Section 302 requires that the VA presume that any “covered Veteran” who served on active duty on or after August 2, 1990 in specified Gulf War locations and on or after September 11, 2001 in other locations and who submits a service-connected disability claim to the VA was exposed to the substances, chemicals, and airborne hazards identified in the Veteran’s exposure tracking record. If no such record exists, the VA is to consider the totality of the circumstances of the Veteran’s service. The bill requires the VA Secretary to establish and maintain a list of substances, chemicals, and airborne hazards that the Secretary, in collaboration with the Secretary of Defense, determines members of the Armed Forces serving at certain locations are presumed to have been exposed. It also requires the VA Secretary to report to Congress any additions or removals to the list.
Section 303 requires the VA to provide a Veteran (who submits a claim for a service-connected disability that contains insufficient evidence of participation in a “toxic exposure activity”) with a medical nexus examination and obtain a medical opinion as to whether it is at least as likely as not that there is a nexus (connection or link) between the disability and the toxic exposure risk activity. The medical opinion must consider the total potential exposure during all deployment and the synergistic, combined effect of all toxic exposure risk activities. The medical nexus examination and the medical opinion are not required of the VA if the VA determines there is “no indication of an association” between the disability claimed by the Veteran and the toxic exposure risk activity. These sections of the bill emphasize the importance to members and Veterans of the Armed Forces of keeping their ILER entries up to date as the ILER forms the basis of many benefits in the bill.
Title IV Adds Presumptions of Service Connection for Specific Toxic Exposure Situations and Diseases
Title IV adds a number of presumptions of service connection to US law. It addresses the “if situations and diseases associated with toxic exposures are not on a VA list, they do not exist” mindset of many VA health care copayment billing clerks and disability compensation claims processors.
Section 401 adds the presumption that Veterans who participated in the cleanup of Enewetak Atoll during 1977 through 1980 were exposed to radiation. Section 402 adds the presumption that Veterans who participated onsite in the cleanup of B-52 crash sites in the vicinity of Palomares, Spain, and in the vicinity of Thule Air Force Base, Greenland, during specified periods were exposed to radiation. Section 403 adds the presumptions that Vietnam-era Veterans who performed active duty in the following locations during specified periods were exposed to herbicides: the Republic of Vietnam (an existing toxic exposure presumption); Thailand at any United States or Royal Thai base; Laos; Cambodia at Mimot or Krek, Kampong Cham Province; or Guam or American Samoa, or in the territorial waters thereof. It also requires that the VA waive copayments for hospital care and medical services for any Veteran “the Secretary finds may have been exposed during such service to dioxin or was exposed during such service to a toxic substance found in a herbicide or defoliant used for military purposes during such period.”
Section 404 adds two diseases to the VA Agent Orange presumptive disease list: hypertension and the premalignant disease, monoclonal gammopathy of undetermined significance (MGUS). Because current law and VA regulations require the VA to provide health care and waive copayments for health care for these diseases and MGUS does not produce a physical disability, our assumption is that the current CBO cost estimate for this section reflects primarily the disability compensation costs of adding hypertension as an Agent Orange presumptive disease. (CBO has not responded to our request for clarification.)
The “significance” of MGUS was undetermined decades ago when the disease was first named, but its significance is widely appreciated today. For example, the Mayo Clinic recently found that about one in six of its IgM-MGUS patients and about one in eleven of its non-IgM-MGUS patients progressed to a current Agent Orange presumptive disease over 34 years of monitoring. Another example is that the country of Iceland and the European Union consider the health consequences of MGUS significant enough to have recently funded a country-wide randomized clinical trial to determine optimum strategies for population screening and for diagnosed-MGUS-patient lifelong monitoring for disease progression and complications.
Section 405 permanently extends the period of eligibility of and reduces the threshold of eligibility of Persian Gulf War Veterans for VA compensation for disabilities that “became manifest to any degree at any time.” It also requires that the VA establish and use a “singular disability-based questionnaire” (in addition to other appropriate diagnostic actions) to identify Gulf War Illness in any Persian Gulf Veteran who presents with any one symptom of the disease. The section further expands the definition of Persian Gulf Veteran to include service in Afghanistan, Israel, Egypt, Turkey, Syria, or Jordan; requires that the VA provide training to its health care personnel to carry out the section; and requires that the VA report to Congress at least annually on its actions in carrying out the section.
Section 406 adds a presumption of service connection of a number of listed diseases associated with exposure of “covered Veterans” to burn pits and other toxins for the purpose of disability compensation. The listed diseases include glioblastoma, the type of cancer of the brain or spinal cord that killed one of President Biden’s sons and too many other Veterans. The section allows the VA Secretary to add any disease to the list that “a presumption of service connection is warranted based on a positive association with a substance, chemical, or airborne hazard” on the list the VA Secretary is required to establish and maintain under Section 302.
Title V Mandates a Number of Research Activities to Fill Gaps in Current Knowledge
Section 501 requires that the VA Secretary establish a Toxic Exposure Research Working Group. The Working Group is to consist of employee of the VA, DOD, DHHS, EPA, and other Federal entities involved in research activities regarding the health consequences of toxic exposures experienced during active duty. The functions of the Working Group will be to identify available collaborative research activities and resources and to develop a 5-year strategic plan for Federal entities represented in the Working Group to carry out collaborative research activities. The VA is required to provide reports to Congress on the establishment of the Working Group, available resources and the 5-year strategic plan, and annual progress. This aspect of the bill is another effort to ensure that research is actually carried out to determine whether identified toxic exposures are statistically positively associated with (increase the risk of) identified diseases compared to reference groups that have not been so exposed. This important step in the process of identifying presumptive diseases has often “fallen through the cracks” in the past, with positive associations often being discovered by outside researchers who take it on themselves to find funding and conduct the needed studies.
Section 502 requires that the VA present to Congress annual reports on treatment of Veterans for illnesses related to toxic exposure. This requirement is similar to one called for by S. 3541. Section 503 requires that the VA conduct an updated analysis of total and respiratory disease mortality in “covered Veterans” (defined in Section 302), conduct an epidemiological study of covered veterans, and conduct a toxicology study that considers variability, to replicate toxic exposures of healthy, young members of the Armed Forces, as well as potentially susceptible members with preexisting health conditions. This requirement is similar to one called for by S. 3541. Section 504 requires that the VA conduct an epidemiological study of health trends of post 9/11 Veterans. This requirement is similar to one called for by S. 3541.
Section 505 requires that the VA conduct a study on the incidence rates of cancer in all Veterans to determine trends in those incidence rates and on available early detection diagnostics to determine the feasibility and advisability of including such diagnostics as part of VA health care and report its findings to Congress. This requirement is similar to one called for by S. 3541. Section 506 requires that the VA conduct a study on the feasibility and advisability of furnishing hospital care and medical services to qualifying dependents of Veterans for any illness determined by the VA to be connected to a “toxic exposure risk activity” carried out by the Veteran, notwithstanding that there is insufficient medical evidence to conclude that such illness is attributable to such activity. It also requires that the VA conduct a review of toxic exposure cases regarding the liability of the DOD.
Section 507 requires the VA to study on the health trends of Veterans who, who participated on active duty relating to the Manhattan Project or who lived near specified locations in the County of St. Louis, Missouri, and report its findings to Congress. Section 508 requires that the VA enter into an agreement with the National Academies for the conduct of a study of Veterans to assess possible relationships between toxic exposures experienced during service in the Armed Forces and mental health outcomes, including chronic multi-symptom illness, traumatic brain injury, post-traumatic stress disorder, depression, psychosis, suicide attempts, and suicide deaths and report its findings to Congress.
Section 509 requires that the GAO conduct a study on the state of access and barriers to benefits and services furnished under laws administered by the VA to Veterans in US territories, including deficits in the availability and accessibility of such benefits and services compared to other US Veterans and report its findings to Congress. Section 510 requires that the VA establish and maintain a public website that serves as a clearinghouse for the publication of all research on the health consequences of toxic exposures experienced during service in the Armed Forces which was carried out or funded by the executive branch of the Federal Government. Section 511 requires that the VA prepare a biennial report to Congress on the health effects of jet fuels used by the US Armed Forces.
Title VI Calls for Improvement in Resources and Training Regarding Toxic-Exposed Veterans
Title VI requires the VA to improve resources and training with regard to toxic exposures of Veterans. The common sense premise is that health outcomes and financial resources for living will be better if Veterans, their caregivers, their survivors, and the VA employees who serve them understand the new rules.
Section 602 requires that the VA publish a list of VA resources for toxic exposed Veterans, their caregivers, and their survivors. The bill also requires that the VA develop an informative outreach program for Veterans on illnesses that may be related to toxic exposure. The bill also requires that these resources and information are shared with organizations (like VSOs) that improve access by Veterans to health care and benefits. This requirement is similar to one called for by S. 3541. Section 603 requires that the VA incorporate, with input from medical professionals, a clinical questionnaire to help determine potential toxic exposures during active duty as part of the initial screening conducted for an appointment of a Veteran with a primary care provider. This requirement is similar to one called for by S. 3541.
Section 604 requires that the VA provide to VA health care personnel training on identification, treatment, and assessment of the impact on toxic-exposed Veterans of illnesses related to toxic exposure and inform such personnel of how to ask for additional information from Veterans regarding different toxic exposures. It also requires that the VA provide training to claims processors and medical examiners concerning how to assess eligibility for toxic exposure benefits. This requirement is similar to one called for by S. 3541. Section 605 requires that the DOD and VA jointly establish guidelines for training of members of the Armed Forces serving on active duty to provide the members awareness of the potential risks of toxic exposures and ways to prevent being exposed during combat. It’s about time.
Title VII Concerns Registries, Records, and Other Matters
Section 701 requires that the VA establish, maintain, promote, and report to Congress about a registry for eligible individuals who may have been exposed to per- and polyfluoroalkyl substances due to the environmental release of aqueous film-forming foam on military installations. Section 702 requires that the VA consult with the DOD to establish and maintain a registry of members of the Armed Forces who were stationed at Fort McClellan, Alabama, during a specified period who apply for VA health care, file a claim for disability compensation, die and are survived by a spouse, child or parent who files a compensation claim, or who requests or receives a VA health examination. The bill also requires the VA to provide requested health examinations and notify individuals listed in the registry of significant developments in research on the health consequences of potential exposure to a toxic substance or environmental hazard related to service at Fort McClellan.
Section 703 calls for the VA enter into a contract with an independent research entity to carry out a comprehensive study of the quality and accuracy of the ILER, or successor system. Section 704 requires that the VA make biannual reports to Congress after the ILER, or successor system, achieves “full operation capability” of the data quality and usefulness of the ILER. This requirement is important considering how critical an “operational” ILER is to Veterans and is similar to one called for by S. 3541. It also requires the VA to report to Congress on the on the feasibility of modifying the ILER to ensure that members of the National Guard who are deployed in the US in connection with a natural disaster to record information regarding a suspected exposure by the members to toxic substances during such deployment. Section 705 requires that the VA provide a way for members of the Armed Forces and Veterans to update their records to reflect a toxic exposure in the ILER, or successor system. This requirement is important considering how critical an “operational” ILER is to Veterans.
Section 706 allows specified individuals to bring an action in a specified district court to obtain appropriate relief for harm that was caused by exposure to the water at Camp Lejeune. Section 707 establishes a Veteran Toxic Exposures Fund to cover expenses incident to the delivery of veterans’ health care and benefits associated with exposure to environmental hazards in service, including administrative expenses, such as claims processing and appeals, and for medical research related to hazardous exposures. Section 708 allows the VA to provide a notice to claimants for VA benefit claims electronically if a claimant (or the claimant’s representative) elects to receive such notice electronically.
Section 709 authorizes that $30 million be appropriated to the VA for fiscal year 2023 to support expected increased claims processing for newly eligible Veterans. With certain exceptions, Section 710 mandates that any covenant not to compete into which an applicant for a position at the VA has entered into with a non-VA facility or party shall have no force or effect with respect to that application. Section 711 allows the VA to appoint physicians on a contingent basis if the VA reasonably anticipated that the physician has completed the requirements for appointment within a specified period.
Section 712 allows the VA to make prioritized grants to States (including Indian Tribes, DC, and US territories) to improve outreach and assistance to Veterans and the spouses, children, and parents of Veterans, to ensure that they are informed about veteran-related benefits and programs for which they may be eligible. These grants are meant to facilitate opportunities for eligible individuals to receive competent services in the preparation and prosecution of veterans’ benefits claims. The bill also authorizes the appropriation of $50 million to the VA for each of fiscal years 2023 through 2027 to carry out this section. Section 713 requires that the DOD conduct a study on the exposure of members of the Armed Forces to herbicide agents, including Agent Orange and Agent Purple, in the Panama Canal Zone and to report its findings to Congress.
Section 714 requires that the DOD include in the budget submission of the President, for each of fiscal years 2023 through 2027, a dedicated budget line item for incinerators and waste-to-energy waste disposal alternatives to burn pits. Section 715 authorizes $150 million to be appropriated to the VA for fiscal year 2023 to continue the modernization and expansion of capabilities and capacity of the VA to support expected increased claims processing for newly eligible veterans pursuant to the bill. Section 716 requires that the VA ensure that the VA Burn Pit Registry (established in 2012) may be updated with the cause of death of a deceased registered individual by designated individuals and family members.
Section 717 requires that the VA submit a report to Congress on each reported case of burn pit exposure by a covered veteran reported during the previous quarter. It also requires the VA to report annually to Congress the total numbers of approved and denied claims by covered Veterans for disability compensation, the conditions for which covered veterans seek treatment, the locations of the burn pits, the total number of covered Veterans who died, and updates and trends. It also requires the GAO to report to Congress an assessment of the effectiveness of any memorandum of understanding or memorandum of agreement entered into by the VA related to the processing of reported cases of burn pit exposure, and of the coordination of care and provision of health care relating to such cases.
Whew! That is comprehensive. No wonder H.R. 3967 is supported by 42 Veterans and Military Service Organizations that represent millions of Veterans.