Amendment in the Nature of a Substitute to H.R.3967 – SFC Heath Robinson Honoring Our Pact Act
NOTEWORTHY
Bill Status: H.R.3967 passed the House on March 3 by a vote of 256-174. On May 26, Senate Majority Leader Schumer filed cloture on the motion to proceed to the bill. The Senate is expected to consider the amendment in the nature of a substitute to H.R.3967 the week of June 6.
Overview of the Issue: During deployment to a war zone, military personnel are often exposed to toxic hazards, many of which have been associated with chronic health issues, such as cancer and respiratory disease. Until almost 2010, the United States military kept burn pits on military bases for the disposal of chemicals, plastics, medical waste, and other substances that were burned with jet fuel, creating toxic smoke. Currently, the Department of Veterans Affairs can provide service-connected disability claims related to burn pit exposures. However, due to lack of evidence, scientific data, and information from the Department of Defense, at least 70% of claims are denied. As a result, veterans exposed to toxic substances face the challenge of not only proving exposure, but also the nexus between their exposure and their adverse health conditions.
As shown by Vietnam veterans’ experiencing toxic exposure to Agent Orange, disability claims related to toxic exposure are challenging to resolve in the VA’s current disability claims system. Veterans service organizations have testified before Congress emphasizing the need to streamline the claims process the VA uses to provide health care and benefits to toxic-exposed veterans.
Executive Summary of the Bill: The bill would expand access to disability compensation and health care benefits provided by the VA for veterans who have been exposed to toxic substances or environments while serving in the military. It also contains provisions related to research, expanded medical facility leasing, and VA workforce improvements.
NOTABLE BILL PROVISIONS
Title I – Expansion of Health Care Eligibility
Expands VA health care eligibility to veterans who participated in toxic exposure risk activity while on active duty or training; served in certain covered locations during certain covered periods, beginning August 2, 1990, or September 11, 2001, in certain countries; or deployed for certain overseas contingency operations.
Health care eligibility would be expanded in phases beginning in fiscal year 2025 through 2033. These dates could be changed to earlier dates by the VA based on the number of veterans qualified for VA health care and resources. The VA would be required to report to Congress any changes and to publish them in the Federal Register.
Expands the period of enhanced eligibility for recently separated combat veterans from five years to 10 years; provides a one-year open enrollment period to certain veterans to get into VA health care faster; and requires the VA to create a plan for outreach for newly eligible veterans in each phase of enrollment.
Title II – Toxic Exposure Presumption Process
Creates a working group comprised of Veterans Health Administration and Veterans Benefits Administration employees to assess known and suspected toxic exposures. The group will make recommendations to the secretary to formally evaluate those exposures and report their assessment to Congress annually.
Requires the VA secretary to establish a process to formally evaluate each recommendation submitted by the working group. Within 120 days of the evaluation process beginning, the VA would have to determine whether to presume that a health condition is associated with military toxic exposure and is service connected. The VA would have 160 days following the determination to issue necessary regulations or to modify existing regulations as necessary.
The VA could also issue regulations to remove an illness from a presumption of service connection if new evidence suggests previous findings are no longer supported. Veterans and their survivors who were given compensation for such an illness on the basis of the presumption before the effective date of removal or modification would continue to receive compensation.
Title III – Improving the Establishment of Service Connection Process for Toxic-Exposed Veterans
Directs the VA secretary to consider any entry in an exposure tracking record that qualifies as a toxic exposure risk activity as a presumption of exposure for a claim for service connection.
Requires the VA secretary to develop a list of substances, chemicals, and airborne hazards and presume exposure to the included hazards for certain veterans who served in a list of covered locations during covered periods.
Requires the VA to provide medical nexus exams for any veteran submitting a claim for service-connected disability related to toxic exposure and evidence of such relation.
Title IV – Presumption of Service Connection
Creates a presumption of exposure for veterans who participated in the cleanup of Enewetak Atoll from 1977 to 1980, where nuclear testing was conducted, as radiation-exposed veterans.
Creates a presumption of exposure for veterans who participated in nuclear response in Palomares, Spain, or Thule, Greenland, as radiation-exposed veterans.
Expands the presumption of exposure to certain herbicides, including Agent Orange, to veterans who served in American Samoa, Cambodia, Guam, Johnston Atoll, Laos, or Thailand during the Vietnam War.
Creates a presumption of service connection for veterans exposed to herbicide agents for Hypertension and Monoclonal Gammopathy of Undetermined Significance.
Permanently extends the period of eligibility for Gulf War veterans to experience and report symptoms of Gulf War Illness.
Creates a presumption of service connection for certain diseases – including certain cancers, chronic obstructive pulmonary disease, asthma, and emphysema – associated with exposure to burn pits and other toxins.
Presumptions included in this title would be phased-in through 2026 to ease the impact on VA operations. If new evidence shows previous findings are no longer supported, the VA secretary would be allowed to issue regulations to remove an illness from a presumption of service connection.
Title V – Research Matters
Requires the VA to establish an interagency toxic exposure research working group comprised of VA, Department of Defense, Department of Health and Human Services, the Environmental Protection Agency, and other federal entities to develop a five-year strategic plan to carry out federally funded research activities on toxic exposure during military service.
Requires the VA to collect clinical data for toxic-exposed veterans and annually report on potential links between toxic exposure and chronic illnesses; conduct an analysis of respiratory disease mortality of veterans who served in the Southwest Asia Theatre of Operations; and issue to Congress a report on the health effects of jet fuels used by the armed forces.
Requires the VA to enter into an agreement with the National Academies of Science, Engineering, and Medicine to conduct a study on health trends of veterans who participated in activities related to the Manhattan Project.
Title VI – Improvement of Resources and Training Regarding Toxic-Exposed Veterans
Requires the VA secretary to publish a list of VA resources for toxic-exposed veterans and an outreach program for such veterans and caregivers.
Requires the VA secretary to include a toxic exposure screening for all VHA-enrolled veterans.
Requires the VA to provide training to VA health care personnel to identify, treat, and assess the impact of toxic-exposed veterans as well as training to VA benefits personnel on reviewing disability claims for toxic-exposed veterans.
Title VII – Resourcing
Expands the VA’s delivery of health care by authorizing 31 major medical clinics and research facilities in 19 states.
Streamlines the leasing approval process for medical facility leases so that Congress does not have to pass a law to approve each lease of a certain size as is currently required.
Expands the VA’s enhanced-use lease authority to allow underutilized VA properties to be used by third parties for homeless veterans and other veteran services.
Title VIII – Records and Other Matters
Requires the VA to conduct an epidemiological study on the health trends of veterans who served at Fort McClellan in Alabama from 1935 to May 20, 1999, and may have been exposed to hazardous materials. Fort McClellan was used for military and biological weapons testing until it was closed in 1999.
Requires the VA secretary to coordinate with the defense secretary to provide an option for veterans to update their records in ILER.
Establishes a federal cause of action for veterans and other individuals exposed to contaminated water at Camp Lejeune, North Carolina, between August 1, 1953, and December 31, 1987.
Creates the Cost of War Toxic Exposure Fund, a new mandatory fund in the Treasury for costs associated with benefits and health care for toxic exposed veterans, including administrative costs. This would shift spending that would be subject to appropriations under current law to direct spending under the new fund and would cover expenditures for programs in place under current law as well as new spending under this bill. Under the new fund, large portions of annual spending for VA would no longer be subject to the regular appropriations process, and most future legislation impacting VA spending would be subject to pay-go rules. The bill appropriates $500 million to the fund for fiscal year 2022.
Requires VA to submit annual reports to Congress on veteran claims relating to burn pit exposure.
Title IX – Improvement of Workforce of Department of Veterans Affairs
Requires VA to develop and implement a rural recruitment and hiring plan.
Authorizes VA to buy out service contracts of health care providers who work for four years at a rural VA facility, and authorizes VA to increase recruitment, retention, and critical skills monetary awards for VA workforce.
Allows VA to waive annual pay limits for five years for employees at closing facilities or those providing care for veterans exposed to burn pits.
ADMINISTRATION POSITION
On February 28, the Biden administration issued a statement of support for H.R.3967.
COST
The Congressional Budget Office estimated the House-passed H.R.3967 would increase mandatory spending by $207.5 billion and discretionary spending by $114.2 billion between fiscal years 2022 and 2031.
CBO has not yet issued an updated score for the amendment in the nature of a substitute to H.R.3967.