"1st Circuit applies equitable tolling to extent Plan's 1 year period of limitations. "
10/25/11
In Ortega Candelaria v. Orthobiologics, the First Circuit applied the doctrine of equitable tolling and overturned the district court's grant of summary judgment based on Ortega's failure to file suit within the Plan's one-year limitation period. Acknowledging the absence of bad intent, the court determined that Orthobiologics materially mislead Ortega into missing the deadline when it failed to include notice of Ortega's right to sue, and the Plan's limited one-year time frame, in its written claim denial. The court rejected Orthobiologics' argument that it gave notice to Ortega in the summary Plan descriptions. 2011 WL 5041744 (Appeal No. 09-2305) (1st Cir. Oct. 25, 2011).
"VA Publishes Final Reg on "Presumptive" Illnesses for Gulf, Iraq & Afghanistan Veterans" 9/28/10
The Department of Veterans Affairs (VA) announced the publication of a final regulation that makes it easier for Veterans to obtain VA health care and disability compensation for certain diseases associated with service in Southwest Asia (including Iraq) or Afghanistan. The final regulation establishes new presumptions of service connection for nine specific infectious diseases associated with military service in Southwest Asia beginning on or after the start of the first Gulf War on Aug. 2, 1990, through the conflict in Iraq and on or after Sept. 19, 2001, in Afghanistan. Furthermore, the regulation reflects a determination of a positive association between service in Southwest Asia or Afghanistan and nine diseases and includes information about the long-term health effects potentially associated with these diseases: Brucellosis, Campylobacter jejuni, Coxiella Burnetii (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis and West Nile virus. With the final rule, a Veteran will only have to show service in Southwest Asia or Afghanistan and that he or she had one of the nine diseases within a certain time after service and has a current disability as a result of that disease, subject to certain time limits for seven of the diseases. Most of these diseases would be diagnosed within one year of return from service, through some conditions may manifest at a later time. Full Article
"VA to Review Nearly 17,000 Previously Denied "Brown Water"and other Agent Orange Vet Cases" 9/28/10
Following oversight requests from Senate Veterans' Affairs Committee Chairman
Daniel K. Akaka (D-Hawaii), the Department of Veterans Affairs (VA) has agreed to
review the cases of nearly 17,000 "Brown Water" and other Vietnam Era veterans
who claimed disabilities related to Agent Orange. VA had previously denied a
number of claims without properly determining whether veterans served in Vietnam's
inland waterways ("Brown Water") or otherwise served in locations where veterans
may have been exposed to herbicides, such as Agent Orange. Akaka successfully
urged VA to reconsider cases in which claims by Vietnam veterans potentially
exposed to Agent Orange were denied without obtaining relevant military records,
such as deck logs. These claims had been held in abeyance by VA while litigation
was pending concerning so-called "Blue Water" veterans and their exposure to Agent
Orange and other herbicides, and were subsequently denied. Akaka discovered that
many of these veterans actually served in so-called "Brown Water" or inland waters
of Vietnam, and should have received the same presumption of service-connection
as veterans who had "boots on the ground" in Vietnam. By law, VA presumes that
veterans who served in inland waterways were exposed to Agent Orange or other
herbicides. Any of those veterans who suffer from certain diseases, and their
survivors, may qualify for monetary benefits and health care. With this review, certain
veterans who were previously considered "Blue Water" veterans will have their claims
re-evaluated for evidence of "Brown Water" service, or evidence of service in other
locations where VA acknowledges that herbicides may have been used, such as the
perimeter of Air Force bases in Thailand. Full Article
"VA Publishes Final Regulation to Aid Veterans Exposed to Agent Orange" 8/30/2010
Veterans exposed to herbicides while serving in Vietnam and other areas will have an easier path to access quality health care and qualify for disability compensation under a final regulation that was published on August 31, 2010 in the Federal Register by the Department of Veterans Affairs (VA). The new rule expands the list of health problems VA will presume to be related to Agent Orange and other herbicide exposures to add two new conditions and expand one existing category of conditions. This historic regulation is subject to provisions of the Congressional Review Act that require a 60-day Congressional review period before implementation. After the review period, VA can begin paying benefits for new claims and may award benefits retroactively for earlier periods. For new claims, VA may pay benefits retroactive to the effective date of the regulation or to one year before the date VA receives the application, whichever is later. For pending claims and claims that were previously denied, VA may pay benefits retroactive to the date it received the claim. Individuals can go to a website at http://www.vba.va.gov/bln/21/AO/claimherbicide.htm to get an understanding of how to file a claim for presumptive conditions related to herbicide exposure, as well as what evidence is needed by VA to make a decision about disability compensation or survivors benefits. Full Article
"VA Announces Test of Paperless Claims Processing System" 8/5/2010
The Department of Veterans Affairs (VA) has selected its regional benefits office in Providence, R.I., to test a paperless system and new procedures to improve processing of Veterans' claims for disability compensation. The pilot, which initially focuses on compensation benefits, is expected to start at the Providence facility in November, with completion in May 2011. Additional pilots are expected before the new claims system is deployed to all 57 VA regional benefits offices. The Providence pilot is part of the Veterans Benefits Management System, one of more than three dozen initiatives in progress at VA to "break the back of the backlog." This first VBMS pilot comes after completion of the Virtual Regional Office project collocated at the Baltimore Regional Office in May 2010. Full Article
"VA Simplifies Access to Health Care and Benefits for Veterans with PTSD" 7/12/2010
The Department of Veterans Affairs has issued new regulations to simplify the process for a veteran to claim service connection for post-traumatic stress disorder, or PTSD. Under the new rule, VA would not require that veterans document specific events like firefights or bomb blasts that might have caused their PTSD. If a VA doctor confirms that the stressful experience recalled by a veteran adequately supports a diagnosis of PTSD and the veteran's symptoms are related to the claimed stressor and is consistent with the places, types, and circumstances of the veteran's service. This science-based regulation relies on evidence that concluded that a veteran's deployment to a war zone is linked to an increased risk of PTSD. Previously, claims adjudicators were required to corroborate that a non-combat veteran actually experienced a stressor related to hostile military activity. This final rule simplifies the development that is required for these cases. Full Article
"U.S. Supreme Court Improves ERISA Plaintiffs' Rights to Attorneys Fees" 5/24/10
This Spring, the Nation's highest court sided with individuals who are improperly denied benefits under ERISA regulated Plans. Writing for the majority, Justice Clarence Thomas held that the common requirement that a party be deemed a "prevailing party", applicable to fee petitions in other statutes including parts of the Employ Retirement Income Security (ERISA), does not apply to ERISA plaintiffs who attain "some degree of success on the merits." The Court found attorneys fees to be appropriate for the plaintiff, Hardt, where the trial court had remanded the case, with instructions to the defendant claim administrator, resulting in a subsequent award by the administrator of plan benefits. The Court held that the remand with instructions to consider all evidence was instrumental in changing the administrator's decision, even though the court did not itself award benefits. Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct. 2149 (May 24, 2010). Full Article
"VA Proposes Change to Aid Veterans Exposed to Agent Orange" 3/25/2010
Well over 100,000 Veterans exposed to herbicides while serving in Vietnam and other areas will have an easier path to qualify for disability pay under a proposed regulation published by the Department of Veterans Affairs (VA) that adds three new illnesses to the list of health problems found to be related to Agent Orange and other herbicide exposures. The regulation follows the Secretary of VA's October 2009 decision to add the three illnesses to the current list of diseases for which service connection for Vietnam Veterans is presumed. The illnesses are B cell leukemias, such as hairy cell leukemia; Parkinson's disease; and ischemic heart disease. The VA's decision is based on the latest evidence of an association with widely used herbicides such as Agent Orange during the Vietnam War, as determined in an independent study by the Institute of Medicine (IOM). Full Article
