By Fall 2018 M-VETS Student-Advisor

Our nation’s brave soldiers can be preyed upon, not only on the battlefield, but also in our nation’s financial marketplaces.[1] Several key characteristics make our servicemembers more apt to becoming preyed upon financially. Servicembers are generally young and lack financial sophistication, robust savings, or guidance from family members; they also receive regular paychecks and have steady employment.[2]

These are key ingredients for “predatory lending.”[3] Once a predatory lender sets its hook, our servicemembers are “placed at a disadvantage and penalized through high fees and interest and dire consequences if they default.”[4] Besides destroying a servicemember’s personal finances, predatory lending impacts the military through readiness standards and retention.[5]  The Department of Defense (DoD) “expects [its] [s]ervicemembers to maintain personal readiness standards, including paying their debts and maintaining their ability to attend to the financial needs of their families.”[6] Running afoul of personal finances can impact a servicemember’s readiness, leading to separation.[7] Separating servicemembers that fall into financial trouble can be costly. The DoD estimates that a separation costs the DoD approximately $58,250.[8]

Congress and the DoD recognized the threat that predatory lending practices have on servicemembers and the military. In 2006, the DoD conducted a study on predatory lending practices,[9] which culminated in the Military Lending Act (MLA).[10]

Initial Implementation of the MLA

The MLA was implemented in 2007 by the DoD through 32 CFR § 232 and protects covered borrowers—active duty members of the military, their spouses, and children, and certain other dependents—from certain lending practices.[11] The DoD’s initial regulation provided protections from predatory lenders through “limitations on and requirements for certain types of consumer credit for covered borrowers.”[12] Specifically, these “limits and requirements” were only placed on “three narrowly-defined consumer credit products”: 1) closed-end payday loans for no more than $2,000 and with terms of 91 days or fewer; 2) closed-end auto title loans with terms of 181 days or fewer; and 3) closed-end tax refund anticipation loans.[13]

The DoD’s regulation limited interest rates and fees charged by creditors on these three products, including a maximum Military Annual Percentage Rate (MAPR) of 36 percent.[14] Creditors were also required to provide mandatory loan disclosures, in addition to those typically required under the Truth In Lending Act (TILA).[15] Further, the regulation provided for various penalties and remedies for violating the MLA.[16]

Providing a “Helmet” – 2015 Expansion of the MLA

Because the original MLA protections were “narrowly focused” on three specific types of consumer credit products, lenders found ways to continue predatory lending practices by dodging the MLA through products outside of its protection. For example, offering servicemembers open-ended lines of credit.[17] One example—and unfortunately this is one of many such examples—of such dodging of the MLA left one poor sailor with a loan at an APR of 499 percent.[18] The consequence of the MLA’s narrow focus is summed up nicely in the following quote by the former director of the Consumer Financial Protection Bureau (CFPB) Richard Cordray: “The current rules under the Military Lending Act are akin to sending a soldier into battle with a flak jacket but no helmet. To give our troops full-cover protection, the rules need to be expanded . . . .”[19]

MLA protections were indeed expanded in 2015 and servicemembers were given a metaphorical “helmet.” MLA protections now “cover significantly more loans and lenders,”[20] as the regulation’s definition of consumer credit was broadened to align with the definition of credit in TILA.[21] Additional protections extended in the 2015 amendment included modifying the MAPR of 36 percent to include additional fees and charges, modifying disclosures creditors must give to covered borrowers, and implementing provisions for administrative enforcement and civil liability against creditors that violate the MLA.[22]

2018 – A Seesaw of Policy Stances

In August 2018, the Military Lending Improvement Act of 2018 (MLIA) was introduced in the Senate “to expand and improve consumer credit protections for members of the Armed Forces and their dependents, and for other purposes.”[23] This bill enhances the 2015 amendments by broadening the types of loans and expanding covered individuals to include veterans.[24] However, an appetite for making MLA modifications appears to be lacking. The MLIA represents a second attempt at making amendments as amendments were originally introduced as part of the National Defense Reauthorization Act of 2019 to no avail.[25] As of the writing of this blog, the Senate has not acted on the MLIA. Further, the MLIA will likely face stiff opposition from the consumer finance industry as it seeks to expand the definition of a “covered borrower.”[26]

Although the MLA is implemented by the DoD, it is enforced by the CFPB and other federal regulators.[27] In October 2018, in a potential weakening of the enforcement of the MLA, the CFPB announced that it would cease its supervisory examinations of financial firms for compliance with the MLA.[28] The primary reason for this cessation is due to the current CFPB leadership’s interpretation of its authority, or lack thereof, to conduct these examinations.[29] This is potentially significant as enforcement of MLA protections would be done post hoc through complaints—after a servicemember may have already been preyed upon—as opposed to preemptively catching predatory practices.[30]

[1] U.S. Dept. of Def., Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents, 10 (Aug. 9, 2006) [hereinafter DoD Predatory Lending Report 2006], http://archive.defense.gov/pubs/pdfs/Report_to_Congress_final.pdf.

[2] Id.

[3] Id. at 21.

[4] Id. at 22.

[5] Consumer Financial Protection Bureau, Military Lending Act, Interagency Examination Procedures 1 (2016) [hereinafter CFPB MLA Exam Procedures].

[6] See DoD Predatory Lending Report 2006, supra note 1, at 10; See also DoD Directive 1344.9, Indebtedness of Military Personnel, October 27, 1984.

[7] See generally Limitations on Terms of Consumer Credit Extended to Service Members and Dependents, 80 FR 43560-01.

[8] Id.

[9] See DoD Predatory Lending Report 2006, supra note 1.

[10] 10 U.S.C. § 987. The MLA was actually passed as the John Warner National Defense Authorization Act for Fiscal Year 2007.

[11] Office of the Comptroller of the Currency, Comptroller’s Handbook, Consumer Compliance, Military Lending Act (2018).

[12] CFPB MLA Exam Procedures, supra note 5, at 1.

[13] CFPB Report Finds Loopholes in Military Lending Act Rules Rack Up Costs for Servicemembers (Dec. 29, 2014), https://www.consumerfinance.gov/about-us/newsroom/cfpb-report-finds-loopholes-in-military-lending-act-rules-rack-up-costs-for-servicemembers/

[14] Id.

[15] Id. TILA is codified under 15 U.S.C. § 1601 and implemented under 12 C.F.R. § 1026 (Regulation Z).

[16] See 32 C.F.R. § 232.

[17] Open-ended credit is generally a revolving and can be used repeatedly until a certain maximum limit is reached. See 12 C.F.R. § 1026.2 for a full description.

[18] Letter from Hollister Petraeus, Asst. Dir. for the Off. of Servicemembers Affairs, CFPB, to Charles Hagel, Sec. of Def. (Dec. 26, 2014), https://files.consumerfinance.gov/f/201412_cfpb_petraeus-comment-on-32-cfr-232.pdf.

[19] Major Moises A. Castillo, The Military Lending Act Part II: The Department of Defense Strikes Back!, Army L., Nov. 2016, at 3.

[20] Nessa Feddis, Robert Savoie, Consumer Lending to Military Members: The Military Lending Act Final Rule and Servicemembers Civil Relief Act Enforcement, 71 Bus. L., 759, 769 (2016).

[21] CFPB Statement on Department Of Defense Military Lending Act Final Rule (July 21, 2015),

https://www.consumerfinance.gov/about-us/newsroom/cfpb-statement-on-department-of-defense-military-lending-act-final-rule/

[22] CFPB MLA Exam Procedures, supra note 5, at 2.

[23] Military Lending Improvement Act of 2018, S. 3334, 115th Cong. (2018), https://www.congress.gov/bill/115th-congress/senate-bill/3334/text.

[24] See id.

[25] Anthony C. Kaye, Military Lending Act of 2018 Introduced in the U.S. Senate, Consumer Fin. Monitor (Aug. 9, 2018), https://www.consumerfinancemonitor.com/2018/08/09/military-lending-improvement-act-of-2018-introduced-in-the-u-s-senate/.

[26] Id.

[27] See National Defense Authorization Act for Fiscal Year 2013, Pub. L. 112-239, section 662(b), 126 Stat. 1786.

[28] Kate Berry, Pentagon, Others Baffled by CFPB Plan to Cease Military Lending Exams, Am. Banker (Oct. 11, 2018, 9:00 PM), https://www.americanbanker.com/news/pentagon-others-baffled-by-cfpb-plan-to-cease-military-lending-exams.

[29] Id.

[30] See generally id.

By Fall 2018 M-VETS Student-Advisor Stephanie Musilek

The civilian criminal justice system exists to serve several purposes including obtaining justice for victims, punishing wrongdoers, and deterring future wrongs, but also providing due process of law to those accused of wrongdoing, thus ensuring fairness in the process. In this system, there are many players who all play different roles in the process and are all intended to be impartial (save for the attorney advocates working on behalf of the accused). For example, a prosecutor is intended to be impartial and only bring cases where there is evidence to convict the accused or a jury of the accused’s peers who are supposed to hear evidence and then vote whether or not to convict the accused. The investigating officers who collect evidence of crimes are also intended to be impartial. For criminal matters, the accused is also guaranteed counsel, per the Fifth and Sixth Amendments to the United States Constitution. In theory, these aspects of the criminal justice system exist to serve the goals of the criminal justice system, including justice and fairness. In practice, issues arise at all levels of the criminal justice system that prevent the system from meeting its goals, and many articles have been written on that topic and will not be discussed here. But the system’s structure is such that when everything works as it is supposed to, victims and accused are protected. This blog post will address the similarities and differences between aspects of the civilian criminal justice system and the military justice system.

The justice system that governs the military is separate and distinct from the civilian criminal justice system. The Uniform Code of Military Justice is codified at Title 10 Sections 801 to 940 and Title 14 Sections 508 and 509 of the United States Code and governs all aspects of criminal behavior by service members along with other kinds of misconduct by service members that does not have a civilian analog such as dereliction of duty, failure to follow a lawful order, or disrespect.[1] In the civilian world, when a crime is committed, a prosecutor will review the evidence and decide if charges should be brought against that individual. In the military context, the commander of the accused is the person with prosecutorial discretion.[2] This means that the commander decides whether to resolve charges against a service member administratively by informal counseling or limitations of privileges, for example, or to refer the charges to trial by court martial.[3] The power to convene a court martial given to a commander, makes the commander the “convening authority,” but the President, the Secretary of Defense, or the Secretaries of the various branches of the military also may also convene a general court martial under the statute.[4] A general court martial is for the most serious offenses.[5] Summary court martial and special court martial are for more minor offenses.[6]

The convening authority has additional powers as well. Before the trial, the convening authority can gather facts for the trial using either a commander’s inquiry, law enforcement agencies, or an Article 32 investigation.[7] Also similar to a prosecutor, during a trial, the convening authority can grant immunity to witnesses.[8] This is an expansive power because by declining to offer immunity to some witnesses, a court martial might not be able to proceed without their testimony.[9]

The convening authority is also the one responsible for selecting the people who will serve on a court martial.[10] While prosecutors in the civilian legal system play an important role in selecting jurors for a trial, they do not have total control of who serves on a jury. While juries are never perfect, they are intended to be composed of peers of the accused. In a court martial, enlisted members of the military may only serve on the court martial when an accused requests that they are, otherwise, the members of the court marital are officers.[11] Even when an enlisted service member requests that enlisted members are on his or her court martial, the convening authority can deny the request assuming they explain the reasoning in writing.[12] This is an incredible power given to commanders in the military that has no comparable analog in the civilian criminal justice system.

Another analog that the military justice system has to the civilian system is the Article 32 hearing. This preliminary hearing prior to a court martial is similar to a civilian grand jury proceeding.[13] A grand jury proceeding allows a prosecutor to show evidence to a panel of people and they will vote on whether charges should be brought against the accused, per the Fifth Amendment to the U.S. Constitution. But unlike a grand jury proceeding, an investigating officer in an Article 32 hearing gives a report summarizing the hearing proceedings and recommending whether to prosecute.[14]

Article 60 of the UCMJ gives the convening authority power above and beyond what a normal prosecutor can do. Under this section, the convening authority “may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.”[15] The statute also provides that a convening authority must provide written explanation for the change, but even with this provision, this is enormous power given to a single individual. A reason for such broad authority includes enabling commanders to ensure good order and discipline, which is a central part of being a leader. Another reason for the broad authority under the UCMJ is that it allows commanders to treat service members the same no matter where the crime is committed.[16]

The military justice system concentrates authority over the accused in a single individual, whereas in the civilian criminal justice system the authority is more diffuse. While It is important that commanders are able to maintain discipline and order in their ranks, a justice system should also provide justice to victims and due process to the accused.   Sexual assault cases in the military are especially susceptible to failing victims.[17] The military justice system has additional goals on top of those that the criminal justice system has and there are arguments for reforming the military justice system to make it more similar to the civilian justice system. Depending on one’s perspective, the additional goals of order and discipline present in a military justice system are overriding factors that counsel against taking away any power from commanders.

[1] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[2] The Commander’s Role in the Military Justice System, Appendix B, B-1, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF.

[3] The Commander’s Role in the Military Justice System, Appendix B, B-1, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF.

[4] 10 U.S.C. § 822.

[5] The Commander’s Role in the Military Justice System, Appendix B, B-4, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF; 10 U.S.C. § 816.

[6] The Commander’s Role in the Military Justice System, Appendix B, B-4, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF; 10 U.S.C. § 816.

[7] The Commander’s Role in the Military Justice System, Appendix B, B-2, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF; Article 32 investigation refers to the preliminary hearing that is proscribed in 10 U.S.C. § 832 as mandatory before a general court martial can be convened.

[8] The Commander’s Role in the Military Justice System, Appendix B, B-2, http://library.enlistment.us/field-manuals/series-2/FM8_10_5/APPB.PDF.

[9] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[10] 10 U.S.C. § 825.

[11] 10 U.S.C. § 825(c)(1).

[12] 10 U.S.C. § 825(c)(1).

[13] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[14] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[15] 10 U.S.C. § 860(c)(2)(B).

[16] Captain David Classen, Military Justice Under Fire: Commanders’ “Convening Authority” Power, Bench and Bar of Minnesota (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-fire-commanders-convening-authority-power/.

[17] U.S. Dept. of Defense, “DoD Releases Annual Report on Sexual Assault in Military” May 1, 2018, https://dod.defense.gov/News/Article/Article/1508127/dod-releases-annual-report-on-sexual-assault-in-military/.

By Fall 2018 M-VETS Student-Advisor Tyler Whidby

Many veterans are told by Vocational Rehabilitation counselors that they are not eligible for Chapter 31 Vocational Rehabilitation services because 12 years or more has passed since the disabled veteran separated from the military. While this is an important fact, it is often an incorrect reason for a benefits denial when applied to many situations. There are many reasons why a veteran may retain eligibility to begin or continue Vocational Rehabilitation well beyond 12 years from their separation from the military.

What is the law?

The Basic Entitlement to Vocational Rehabilitation Benefits and Services provides that an individual meets the basic entitlement criteria for vocational rehabilitation benefits and services if:

(a) Veterans with at least 20 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated 20 percent or more under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of an employment handicap.

(b) Veterans with 10 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of a serious employment handicap.[1]

Merely meeting the basic requirements for eligibility is not enough to guarantee Vocational Rehabilitation services. When initially applying for Vocational Rehabilitation services these basic eligibility requirements are subject to a “Basic Period of Eligibility.”[2] The regulations provide that for the purposes of Vocational Rehabilitation, “the term basic period of eligibility means the 12-year period beginning on the date of a veteran’s discharge….”[3]

Many veterans, and some counselors, stop there. There is a fallacy that a hard cut-off for Vocational Rehabilitation services exists 12 years after discharge. This is not the case. 38 CFR § 21.42 plainly states that “[t]he basic period of eligibility does not run as long as any of the following reasons prevents the veteran from commencing or continuing a vocational rehabilitation program.”[4]

The first and most common reason the Basic Period of Eligibility may be longer than 12 years from discharge is that a qualifying compensable service-connected disability was not established.[5] No matter the date of discharge, if the veteran does not have a qualifying disability—20% or 10% with a serious employment handicap—“[t]he basic period of eligibility does not commence until the day VA notifies a veteran of a rating determination by VA that the veteran has a qualifying compensable service-connected disability under §21.40.”[6] The basic period of eligibility runs 12 years from the date the veteran received such notice.[7]

The second reason the Basic Period of Eligibility may be longer than 12 years from discharge is if a veteran is ineligible for Vocational Rehabilitation services due to their Character of Discharge.[8] The regulations states that “[t}he basic period of eligibility does not commence until the veteran meets the requirement of a discharge or release under conditions other than dishonorable.”[9] Instead of being calculated form the date of discharge, a veteran who successfully upgrades their character of discharge has a basic period of eligibility of 12 years beginning when “[a]n appropriate authority changes the character of discharge or release; or VA determines that the discharge or release was under conditions other than dishonorable or that the discharge or release was, but no longer is, a bar to benefits.”

The Basic Period of Eligibility may also be longer than 12 years from discharge is if the veteran was unable to commence or continue their participation in Vocational Rehabilitation due to a medical condition.[10] The regulation states that “[t]he basic period of eligibility does not run during any period when a veteran’s participation in a vocational rehabilitation program is determined to be infeasible for 30 days or more because of any medical condition(s) of the veteran, including the disabling effects of chronic alcoholism (see paragraphs (c)(2) through (c)(5) of this section).”[11] The Board of Veterans Appeals has specifically held that the medical disability prohibiting participation in the Vocational Rehabilitation program need not be a service-connected disability.[12] If a physical impairment or mental condition—including alcoholism—prevented the veteran from being able to begin or continue in their rehabilitation then the 12 year clock from when they were notified of a qualifying disability stops.[13]

But that’s not the eligibility determination. When the veteran has a Serious Employment Handicap, the 12-year time limit can be completely waived.[14] If the veteran is found to have an employment handicap, even after the 12-year period of basic eligibility has expired, it must be determined whether he has a serious employment handicap and may be authorized an extension of the period of eligibility.[15] Critically, under 38 C.F.R. § 21.52, for each individual who is found to have an employment handicap, a Counseling Psychologist or Vocational Rehabilitation Counselor must make a separate determination of whether the individual has a serious employment handicap.[16]

The applicable law states that a veteran who has been found to have an employment handicap shall also be considered to have a serious employment handicap if, in pertinent part, he has a service-connected disability rated at 50% or more.[17] However, a rating of 50% is not required. The statute defines a ‘serious employment handicap’ as a significant impairment, resulting in substantial part from a service-connected disability rated at 10 percent or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests. [18]

Indeed, a serious employment handicap will be found if the veteran has a neuropsychiatric service-connected disability rated at 30% or more[19] or if the veteran’s service-connected disability has been rated at 30 or 40 percent disabling, and

(1) the veteran has a prior history of poor adjustment in training and employment, and special efforts will be needed if he is to be rehabilitated; or

(2) the veteran’s situation presents special problems due to non-service-connected disability, family pressures, etc., and a number of special and supportive services are needed to effect rehabilitation.[20]

The Board of Veterans Appeals has further held that, “while a serious employment handicap is not usually found if the veteran’s service-connected disability is rated less than 30 percent disabling, a finding of serious employment handicap may be made if the veteran’s service-connected disability has caused periods of unemployment or unstable work history, or the veteran had demonstrated a pattern of maladaptive behavior which is shown by a history of withdrawal from society or continuing dependence on Government income support programs.[21]

After obtaining a finding of a serious employment handicap, the basic period of eligibility of a veteran with a serious employment handicap may be extended beyond 12 years when the veteran’s employment and particular handicap necessitate an extension as necessary to pursue a vocational rehabilitation program under the following conditions:

(a) The basic period of eligibility may be extended when the veteran has not previously been rehabilitated to the point of employability.

(b) The basic period of eligibility may be extended when the veteran was previously declared rehabilitated to the point of employability, under the VA vocational rehabilitation program, but either:

(1) the veteran’s service-connected disability or disabilities have worsened to the extent that he is unable to perform the duties of the occupation in which he is trained, or in a related occupation; or

(2) the occupation in which the veteran was rehabilitated to the point of employability is not presently suitable in view of the veteran’s current employment handicap and capabilities (the finding of unsuitability must be based upon objective evidence developed in the course of reconsideration which shows that the nature or extent of the veteran’s employment handicap and his or her capabilities are significantly different than were previously found.) or;

(3) occupational requirements have changed and additional services are needed to help the veteran continue in the occupation in which he or she was trained or in a related field. [22]

What does this mean?

A counselor statement that a veteran is not within the basic period for eligibility may be improper and insufficient for the denial of Vocational Rehabilitation services. Determining entitlement to services is complex and requires an in-depth evaluation of all aspects of a veteran circumstances and record.

The 12-year time limit does not start until:

1. the veteran receives a disability rating of at least 20% or the veteran receives a 10% rating with a Serious Employment Handicap

AND

1. the character of discharge is no longer a bar to benefits

AND

1. the veteran is mentally and physically able to participate in Vocational Rehabilitation.

The primary reasons for denial of a claim due to the basic period of eligibility relate to the 12-year calculations. It is necessary to ensure the counselor is using the date of notification of a qualifying disability. This may be complicated by veterans who filed disability claims many years after separating from military service or when a veteran obtained their qualifying disability rating subsequent to other rating decisions. However, a qualifying disability must be a disability rating of at least 20% or a 10% rating with a Serious Employment Handicap and the veteran must have been properly notified of this rating.

In the case of veterans who have successfully obtained discharge upgrades or other changes to their character of discharge, the 12-year calculation utilizes the date of the change in the character of discharge. In these cases, it matters neither when the veteran separated from the service nor when a disability rating was awarded. The applicable law clearly states that the 12-year eligibility period does not begin for these veterans until they become eligible for services.

The third way in which the 12-year clock is stopped is when a veteran is the mentally and physically able to participate in Vocational Rehabilitation. A veteran who can show that ANY medical or mental condition—including alcoholism—would have prevented their participation in Vocational Rehabilitation for any 30-day period may retain eligibility beyond 12 years from being notified of a qualifying disability.

Finally, should a veteran qualify for services but require time beyond the 12-year eligibility period to complete their rehabilitation, it is necessary to determine if a serious employment handicap exists. Despite what many veterans and counselors believe, a disability rating of 50% is not required. Any employment handicap, from a service-connected disability rated at 10% or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests is a serious employment handicap. A veteran seeking a finding of a serious employment handicap must relate their service-connected disability, rated at least 10%, to an inability to obtain or maintain employment in which they have abilities, aptitudes, and interests (remember these three words!). A finding of a serious employment handicap results prevents the 12-year period of entitlement from ending.

While counselors may not consider all the ways to get in and stay in Vocational Rehabilitation, there are many arguments a veteran should use to ensure their entitlement to Vocational Rehabilitation. Ensure that each exception is checked for applicability to the veteran. Do not assume that the Vocational Rehabilitation counselor has gone through each of these possibilities when the veteran is told they are outside the basic period of eligibility for Chapter 31 Vocational Rehabilitation services.

[1] 38 CFR § 21.40, Basic Entitlement To Vocational Rehabilitation Benefits And Services.

[2] 38 CFR § 21.41, Basic Period Of Eligibility.

[3] 38 CFR § 21.41(a)

[4] 38 CFR § 21.42

[5] See 38 CFR § 21.42(a)

[6] Id

[7] Bd. Vet. App. 0838805 (Nov. 10, 2008)

[8] 38 CFR § 21.42(b)

[9] Id.

[10] 38 CFR §21.42(c)

[11] Id; Bd. Vet. App. 9731114 (Sept. 11, 1997)

[12] Bd. Vet. App. 0022736 (Aug. 28, 2000)

[13] Id.; see 38 C.F.R. § 21.52(e); Bd. Vet. App. 9410483 (1994)

[14] See 38 U.S.C.A. § 3101; 38 C.F.R. § 21.44; Bd. Vet. App. 9402538 (1994)

[15] Id.

[16] Bd. Vet. App. 1731945 (Aug. 8, 2017)

[17] 38 C.F.R. § 21.52(c)

[18] 38 U.S.C.A. § 3101(7); Bd. Vet. App. 0427591 (Oct. 5, 2004)

[19] Id.

[20] 38 C.F.R. § 21.52(d)

[21] 38 C.F.R. § 21.52(e); Bd. Vet. App. 0107462 (Mar. 13, 2001); Bd. Vet. App. 9410483 (1994)

[22] 38 C.F.R. § 21.44; Bd. Vet. App. 9731114 (Sept. 11, 1997)

 

By Fall 2018 M-VETS Student-Advisor Michael Vlcek

The United States would face a crisis in leadership if the President and the Vice President are simultaneously killed or removed from office. The United States does not have a clear Presidential succession plan, which is a national security necessity for a country with the largest military[1] and largest economy[2] in the world. Not only would the death of the President and Vice President require an immediate response abroad to ensure America’s allies of a peaceful transition of power and to quickly respond to enemy transgressions (particularly if another nation was responsible for the deaths of the President or Vice President), but the power of the Presidency would invite legitimate claims by multiple people demanding that, by law, they are entitled to the Presidency. This will likely put the Supreme Court in the role of determining the next President, with the decision possibly dividing the nation worse than when the Supreme Court decided Bush v. Gore.[3] Due to this danger, Congress must clarify Presidential succession and the Supreme Court must draft an advisory opinion on who is constitutionally allowed to succeed the President, before a fight over the Presidency occurs.

The Framers of the Constitution never established a clear understanding of how Presidential succession was to work. The Constitution’s Vacancy and Disability Clause[4] was so unclear that when President William Henry Harrison died from pneumonia, it was uncertain whether Vice President John Tyler would become President, or merely Acting President, and if there was a real distinction between the two roles.[5] It was only codified through the passage of the Twenty-Fifth Amendment that a successor to the President would in fact be the President.[6] However, this only applies to the Vice President, as the Amendment does not state that others in the line of succession could become more than an Acting President.[7]

It is commonly believed that the Presidential Succession Act of 1947 designated a clear order of succession,[8] from the President to the Vice President to the Speaker of the House to the President pro tempore to finally the Cabinet Secretaries in order of the creation of the federal departments.[9] However, the law fails to clarify important aspects of the succession process and may be unconstitutional.

The Presidential Succession Act of 1886 was created to create an order of succession beyond the President and Vice President to members of the President’s Cabinet. It was replaced by the Presidential Succession Act of 1947, which injected the Speaker of the House and the President pro tempore of the Senate into the order of succession before the Cabinet.[10] However, putting members of Congress into the order of succession may be unconstitutional.[11] It may violate the Constitution’s Ineligibility Clause, which prevents members of Congress from holding other offices in the federal government.[12] Further, the Constitution’s Vacancy and Disability Clause designates only an “officer” may succeed the President.[13] Throughout Article II, “officers” are persons appointed by the President, which does not include members of Congress.[14] This would prevent the Speaker of the House or the President pro tempore from becoming President.

In addition, the Presidential Succession Act of 1947 allows for officers serving as “Acting President” to be bumped out for somebody higher up in the order of succession.[15] This could mean that if the Secretary of State were to become Acting President, that person could be removed from power as soon as the House of Representatives elects a new Speaker.[16] Not only might this be unconstitutional for the aforementioned reasons, but it would also risk the United States having numerous Acting Presidents in a short amount of time, allowing for a chaotic leadership struggle.[17] Bumping itself may be unconstitutional, as the Framers did not design the Presidency to change hands on the whims of Congress, except in cases of impeachment.[18] The issue of bumping could create a struggle for the Presidency between a Secretary of State and a newly elected Speaker of the House, particularly if the Speaker comes from a rival political party.

Adding to the confusion is that each federal department has their own order of succession.[19] This became well-known to the public when then Attorney General Jeff Sessions had to relieve himself of responsibilities regarding overseeing the investigation of Russia’s interference in the U.S. Presidential election of 2016, in which the responsibility for overseeing the investigation was transferred from Sessions to the Deputy Attorney General Rod Rosenstein.[20] For example, the Director of Defense Research and Engineering is the sixteenth person in line to succeed the Secretary of Defense in the event the Secretary and the people below him are incapacitated or ineligible to serve as Acting Secretary of Defense.[21] An acting Cabinet Secretary could be eligible for the Presidency, provided that the Presidential Succession Act of 1947 use of the word “officer” is to mean the same as it did in the Presidential Succession Act of 1886.[22] Under current protocol, the secret service considers acting Cabinet officials as eligible to be President under the rules of succession.[23] Hypothetically, the Deputy Secretary of State could serve as the Acting Secretary of State, and therefore be eligible to become Acting President. However, this is unclear and could lead to a dispute between a Deputy Secretary of State and the Secretary of Treasury over the Presidency.

Outside of legal concerns, there are numerous practical concerns to the Presidential Succession Act of 1947. The current order of succession does not place the people best in line to handle a crisis.[24] For example, the President pro tempore (who is often the eldest member of the Senate and often an octogenarian or nonagenarian) is placed high in the order of succession.[25] In addition, Cabinet members are placed in the order of succession based on when the federal department was created.[26] While the Secretary of Agriculture and the Secretary of Commerce oversee important federal departments, these officials might not be best suited to take over in a crisis compared to the Secretary of Homeland Security.[27] Furthermore, everybody in the order of succession works in Washington D.C. (with the exception of the Secretary of Defense, who works in nearby Arlington, Virginia). This increases the risk that an event could happen which would incapacitate multiple (or all) persons in the order of succession, which raises the likelihood of an unclear successor and a fight for succession.

To prevent a battle for the Presidency after a tragedy, Congress and the Supreme Court must get involved now. The Supreme Court could address the constitutionality of the Presidential Succession Act of 1947, particularly if members of Congress may become officers.[28] Congress should design a system that avoids current problems with the Presidential succession.[29] This could include allowing the President to place certain governors into the order of succession.[30] This would put qualified, experienced executives into the order of succession. In addition, governors are not located in D.C., which helps avoid the scenario of all members of the order of succession perishing in attack that destroys D.C. and its surrounding localities. Another solution is to eliminate the bumping provision, to create stability when one person becomes Acting President.[31] Finally, the ambiguity whether an acting Cabinet member is eligible for Presidential succession should be resolved.[32]

The current Presidential succession laws in the United States threaten instability if nothing is done. America faces a disastrous scenario if multiple parties have valid claims for political power were to fight it out in the courts, particularly during a national emergency. Hopefully, the day never comes when the United States will need a thought-out succession plan in place. However, national security is all about anticipating the worst-case scenario. Preparing for a disastrous situation in which the President and Vice President are killed or removed from office requires both Congress and the Supreme Court resolving the current issues with Presidential succession, before it’s too late.

 

[1] Jeremy Bender, “Ranked: The World’s 20 Strongest Militaries,” Business Insider (October 3, 2015) https://www.businessinsider.com/these-are-the-worlds-20-strongest-militaries-ranked-2015-9/#20-canada-1.

[2] Prableen Bajpai, “The World’s Top 20 Economies,” Investopedia (January 2, 2019) https://www.investopedia.com/insights/worlds-top-economies/.

[3] 531 U.S. 98; see e.g. Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker (May 6, 2013) https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. Justice Sandra Day O’Connor regrets the Supreme Court taking Bush v. Gore. She goes on to say the case “stirred up the public” and “gave the Court a less than perfect reputation.”

[4] U.S. Const. Art. II §1 cl. 6.

[5] Robert McNamara, “John Tyler: First Vice President to Suddenly Replace a President,” ThoughtCo. (March 17, 2017) https://www.thoughtco.com/john-tyler-vice-president-replace-president-1773862.

[6] U.S. Const. amend. XXV.

[7] See id.

[8] See e.g. Jason Silverstein, “Here’s the Presidential Order of Succession – Just in Case,” New York Daily News (May 17, 2017) https://www.nydailynews.com/news/politics/presidential-order-succession-case-article-1.2973129.

[9] See 3 U.S.C. §19.

[10] Id.

[11] See Norman Ornstein, “It’s Armageddon,” American Enterprise Institute (February 9, 2004) http://www.aei.org/publication/its-armageddon/.

[12] U.S. Const. Art. I §6 cl. 2.

[13] U.S. Const. Art. II §1 cl. 6.

[14] M. Miller Baker, “Ensuring the Continuity of the United States Government: The Presidency,” Global Security (September 16, 2003) https://www.globalsecurity.org/security/library/congress/2003_h/030916-baker.htm.

[15] Thomas H. Neale, Presidential Succession: An Overview with Analysis of Legislation Proposed by the 109th Congress, CRS Report for Congress (June 29, 2005) https://fas.org/sgp/crs/misc/RL32969.pdf.

[16] Id.

[17] Id.

[18] See U.S. Const. Art. I, §2, cl. 5.

[19] See e.g. Executive Order 13533 (2010).

[20] Meghan Keneally, “Who Would Fill Deputy Attorney General Rod Rosenstein’s Position If He’s Fired or Resigns?”, abc News (September 25, 2018) https://abcnews.go.com/US/explaining-justice-departments-line-succession-trump-off-script/story?id=58044089.

[21] Supra note 19.

[22] “The Presidency: Preserving Our Institutions,” Continuity of Government Commission, 34 (June 2009) https://www.webcitation.org/67sZJhkHR?url=http://www.brookings.edu/~/media/research/files/reports/2009/7/06%20continuity%20of%20government/06_continuity_of_government.pdf.

[23] Id.

[24] See 3 U.S.C. §19.

[25] See id.

[26] See id.

[27] See id.

[28] See id.; supra note 22.

[29] See Second Fordham University School of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss3/3.

[30] See e.g. Id. at 952. This idea is like the “standing successor” proposal.

[31] See Id. at 954.

[32] See Id.

By Summer 2018 M-VETS Student-Advisor Keith Bishop[1]

16,000 Americans are expected to die of bladder cancer every year.[2] Bladder cancer patients pass blood in their urine, suffer painful urination, and may suffer other symptoms such as back pain.[3] Surgeries of various types are the most common treatment, including Transurethral Resection, in which a physician inserts a tube into the bladder and burns away the cancer with an electric current.[4] “It’s not clear how many Vietnam veterans have suffered from bladder cancer.”[5]

Vietnam veterans as a whole have been suffering from a pretty reliable host of conditions for decades. Because of this, Congress has made it easier for Vietnam veterans, whether soldier, sailor*[6], airman, or marine, to be approved for veteran’s disability compensation for many of these conditions. But despite all of these numbers of veterans with bladder cancer, neither Congress nor the Department of Veterans Affairs (“VA”) has added bladder cancer to that list that relaxes the burden of proof that veterans must meet to be awarded compensation.

Let’s unpack this a bit. Let’s look at the raw numbers, and the science and statistics behind this distinction between bladder cancer and other conditions closely associated with having served in Vietnam. Does it make sense for bladder cancer to be excluded, when so many conditions get special treatment?

BACKGROUND: Relative Risk[7]

In basic civil law, a plaintiff—the person who feels aggrieved and is suing to win money or to have a court order the other party to do or not do something—needs to exceed a burden of proof called the “preponderance of the evidence” which essentially means ‘greater than 50%’ of the evidence is in his favor. [8] That could be 90%, or 60%, and some people say 51%, but that is almost 1% more than is required; 50.00000000000000000000001%, with an infinite number of zeros before that terminating 1, is sufficient to show a preponderance.

A lot of civil lawsuits, especially the ones against large corporations, are quite scientifically sophisticated, requiring teams of scientists, statisticians, and/or engineers to provide unbiased expert testimony. These are people unrelated to the parties with who by their “knowledge, skill, experience, training, or education”[9] are in a position to explained to a jury their opinions and the basis for their opinions whether, for instance, an airplane wing was poorly designed or poorly manufactured, whether some scary-sounding chemical caused the victim to become sick, or whether a medicine was mistakenly released to the public or mistakenly prescribed. A lot of these kinds of lawsuits depend on a lot of mathematics and science.

When a plaintiff has met his burden of a preponderance, we can say that, all things being equal, defendant’s action or inaction was “more likely than not” the cause of plaintiff’s suffering. The most famous example in American law of this analysis was centered around Bendectin,[10] a trade name for an anti-nausea medicine marketed to pregnant women from the 1950s until the early 1980s, and pulled from the market because it was suspected of causing birth defects.[11] The Bendectin case, Daubert v. Merrell Dow Pharmaceuticals, reached the U.S. Supreme Court in 1993,[12] and set the basis by which all federal courts evaluate scientific and expert evidence.[13] The court below, whose decision was being appealed, had interpreted relative risk and the preponderance of the evidence standard mathematically: “plaintiffs must establish not just that their mothers’ ingestion of Bendectin increased somewhat the likelihood of birth defects, but that it more than doubled it—only then can it be said that Bendectin is more likely than not the source of their injury.”[14] (emphasis added) Did you catch that? A suspected cause of injury must ‘more than double’ the risk of a naturally occurring problem. That sounds like a number. To a statistician who studies health, that is a very specific type of number, the relative risk.

To understand whether bladder cancer should be easier for Vietnam veterans to win disability benefits for, it is not necessary to be a statistician, or an epidemiologist, or even very scientifically inclined at all. But it is vital that you at least understand that relative risk is a conventional tool that statisticians use to determine whether we ought to consider a suspected cause as sufficiently linked to a suspected effect to feel comfortable concluding that they two are causally related.[15]

So what is relative risk? For that, consider this well-constructed example from theanalysisfactor.com, which I will quote verbatim:

“Suppose you have a school that wants to test out a new tutoring program. At the start of the school year they impose the new tutoring program (treatment) for a group of students randomly selected from those who are failing at least 1 subject at the end of the 1st quarter. The remaining students receive the customary academic support (control group). At the end of the school year the number of students in each group who fail any of their classes is measured. Failing a class is considered the outcome event we’re interested in measuring. From these data we can construct a table that describes the frequency of two possible outcomes for each of the two groups.

“The probability of an event in the Treatment group is a/(a+b)= R1 . It’s the number of tutored students who experienced an event (failing a class) out of the total number of tutored students. You can think of it this way, if a student is tutored, what is the probability (or risk) of failing a class? Likewise, the probability of an event in the Control group is c/(c+d) = R2. Again, it’s just the number of untutored students experienced an event out of the total number of untutored students. Although each of these probabilities (i.e., risks) is itself a ratio, this isn’t the risk ratio. The risk of failing in the tutored students needs be compared to the risk in the untutored students to measure the effect of the tutoring. The ratio of these two probabilities R1/R2 is the relative risk or risk ratio. Pretty intuitive.

“If the program worked, the relative risk should be smaller than one, since the risk of failing should be smaller in the tutored group. If the relative risk is 1, the tutoring made no difference at all. If it’s above 1, then the tutored group actually had a higher risk of failing than the controls.”[16] (emphasis added)

If you have read that more than once and still do not understand, it’s okay. The government decisionmakers in charge of adding disorders to the easier veterans’ lists rely on the advice of those who understand…and may not understand the mathematics involved themselves. The important point, is: in the example above, how badly would a tutor have to be before you could be pretty assuredly confidence he was alone, without much debate, making the students significantly worse? In basic epidemiology and toxic tort litigation, the standard is showing a relative risk of at least 2. RR = 2 is the same as saying that the defendant’s action or the effect of a chemical ‘more than doubled’ the risk. That is, a tutor more than doubled a student’s chance of failing.

What is the Relative Risk of death if you are shot in the chest? Probably at least 2—your chances of dying are at least twice as high as if you were not shot—unless you are only feet away from a well-run emergency room.

BASIC VETERANS DISABILITY LAW[17]

Returning to veterans, typically, to be awarded disability compensation, the veteran must satisfy three conditions. He must (1) suffer a current disability, (2) have underwent an in-serve event or exposure that resulted in injury (or aggravation of a pre-existing condition), and (3) establish a nexus between the current disability and the in-service event or exposure.^[18] The word “nexus” is the tricky part. It basically means “was caused by.” How are veterans suffering from medical conditions in the 1980s, 1990s, 2000s, and 2010s supposed to show that their medical condition was caused by some experience in Vietnam decades earlier? Fortunately, Congress understood that almost no veteran suffering from any condition would be able to make that showing, even assuming that there was an absolute, definitive link between some environmental hazard, and some medical condition, because how many veterans were collecting soil samples while humping through the jungles, listening for the tell-tale sounds and smells of an impending ambush?

Because veterans of the same era and conflict often suffer and petition for disability compensation for many of the same conditions at the same time, and because there is often scientific evidence to support causal connections between hazards and diseases, Congress has eliminated, for certain classes of veterans, the need for each to establish that nexus. When this happens, we say that instead of a “direct-service connection” that the veteran can establish a “presumptive” service connection. Presumptive connection means that the condition is included in a list of disorders connected to certain categories of service, and can be set in law either by statute or by regulation. For Vietnam veterans, Congress in 1991[19] established an initial list of disorders commonly associated with service in Vietnam, believed to have been caused by their exposure to Agent Orange, an herbicide dropped in vast quantities throughout the conflict in order to assist troops maneuver there had previously been haltingly dense jungle,[20] and related herbicides. Congress also directed the VA to promulgate new rules to add more conditions to the list of presumptive disorders based on the recommendation of the National Academy of Sciences that there existed sufficient statistical evidence that Agent Orange and other herbicides used in Vietnam were related to a given medical condition.[21]

Even though bladder cancer is not included on either the statutory list of presumptive disorders,[22] nor has been added to the VA’s regulatory list of presumptive disorders for service in Vietnam,[23] veterans can still win claims for bladder cancer based on Agent Orange and herbicides by the conventional direct-service connection route.^[24] That is, the lack of a condition being presumptive does not mean that it is impossible to show it was causally connected to a disorder; it just means that neither Congress nor the VA believe there is a strong enough statistical connection to grant that service connection to all veterans with that exposure and a given disorder.

THE Presumptive CONDITIONS

Congress has specified, to simplify its language, eight conditions or sets of conditions as being presumptive tied to exposure to herbicides in Vietnam:[25]

1. Non-Hodgkin’s lymphoma
2. Soft-tissue sarcoma (with exceptions)
3. Chloracne / acneform disease
4. Hodgkin’s disease
5. Porphyria cutanea tarda (PCT), the most common subtype of porphyria
6. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)
7. Multiple myeloma, sometimes known as plasma cell myeloma
8. Diabetes Type-2

The VA has used its rulemaking authority, based on the scientific recommendations provided by the National Academy of Sciences, to add…six(?)[26]…more:[27]

1. AL amyloidosis
2. Ischemic heart disease
3. Chronic B–cell leukemias
4. Parkinson’s disease
5. Early-onset peripheral neuropathy
6. Prostate cancer

So….why not bladder cancer? Is bladder cancer sufficiently different from a scientific, statistical standpoint, that the conditions above are all presumptive service connected, and it is not?

To sidestep that question briefly, you should know that the National Academy of Sciences and the VA are currently working to add bladder cancer to the list. In March 2016, the National Academy of Science released its 2014 Update, in which it upgraded its assessment of the possible connection between Agent Orange and bladder cancer from “inadequate or insufficient” to “limited or suggestive”^[28] because, among other things, a new study of Korean and Vietnam veterans showed increased mortality caused by bladder cancer after higher exposure to herbicides.^[29] Based on this, the VA is reported to have lobbied the White House’s budget office to include bladder cancer as a presumptive disorder, but no announcements have been made in response to such a recommendation.^[30]

What is behind that choice, that change in position? How does NAS and the VA assess “increased mortality”? If you said Relative Risk, congratulations (…..somewhat).

In particular, one new study had some interesting results: “Yi et al. (2014b) reported a statistically significant two-fold increase in bladder cancer–specific mortality (RR = 2.04, 95% CI 1.17–3.55)[31] comparing the high- and low-exposure groups without adjustment for smoking; these results were based on 42 deaths from bladder cancer in the high category.”[32]

If you caught that RR in that statement was greater than 2, congratulations, you are ready to make national health policy.*[33] But the NAS and VA don’t rely on just one study. The Update includes a list of dozens of studies, and most of them do not report RR of at least 2.[34]

So let’s compare one condition already on the lists with bladder cancer, which is not, but possibly could be soon.

According to the National Academies, for Non-Hodgkin’s lymphoma, the first-listed disorder in the statute, “there is sufficient evidence of an association between exposure to at least one of the [herbicides] and NHL.”[35] The Update is written by experts who go out of their way to prevent readers with only my level of expertise from misinterpreting their results; there are twenty pages of listings of scientific article summaries,[36] which include individual RRs, but the narrative that explains the Academies’ assessment rarely refers to relative risks and does not base its ultimate decision on the result of a massively compounded single-number result…as amateurs may want them to.[37] Reviewing the data tables, however, there does seem to be a clear difference in the numbers, in the typical RR numbers of the bladder cancer tables (pages 517-530) compared to the Non-Hodgkin’s lymphoma tables (pages 591-610). For any blog readers truly sophisticated in this level of research and mathematical aptitude, I now invite you to laugh at me.

A satisfying understanding of why the Update treats bladder cancer one way and Non-Hodgkin’s lymphoma another requires serious study. There are four dense pages of discussion and conclusions about bladder cancer,[38] and six dense pages of conclusions about Non-Hodgkin’s lymphoma[39] What are the scientists looking for, if not just some oversimplifying statistical tool? They have a series of categories of analysis they consider for each disorder: studies of Vietnam veterans themselves, occupational and environmental studies, case-control studies, environmental studies, and biological plausibility. After examining those categories of analyses in isolation, the National Academies synthesizes those conclusions to identify trends and themes, and then provides a conclusion. Looked at from that perspective, is bladder cancer truly different from the other, established, conditions, or at least Non-Hodgkin’s lymphoma?

Comparing the bladder cancer synthesis and conclusion with that of Non-Hodgkin’s lymphoma, it is apparent why Non-Hodgkin’s lymphoma has long been presumptively service connected and bladder cancer is only now under serious consideration to become so. The Non-Hodgkin’s lymphoma synthesis and conclusion indicates that “The first [such] committee found the evidence to be sufficient to support an association”[40] between the suspected herbicides and Non-Hodgkin’s lymphoma. It explains further, and I apologize for not being able to adequately clean up this density of technical language:

“Results of some high-quality studies show that exposure to 2,4-D and 2,4,5-T appears to be associated with [chronic lymphocytic leukemia (now regarded as same disease as small lymphocytic leukemia [SLL] and designated by some as CLL/SLL)], including the incidence study of Australian veterans (ADVA, 2005a), the case-control study by Hertzman et al. (1997) of British Columbia sawmill workers who were exposed to chlorophenates, the Danish-gardener study (Hansen et al., 1992), and the population-based case control study in two US states by Brown et al. (1990) that showed increased risks associated with any herbicide use and specifically the use of 2,4,5-T for at least 20 years before the interview.”[41]

For my purposes, the almost-lay perspective, it suffices that these experts believe that they have “high-quality studies” that show “increased risks… at least 20 years before the interview.”

In contrast, the Update examines the possibility of bladder cancer quite more skeptically: “Many of the available analyses of an association between exposure to the [herbicides] and bladder cancer risk are characterized by low precision because of the small numbers of exposed cases, low exposure specificity, and a lack of ability to control for confounding, particularly cigarette smoking, which is a major risk factor for bladder cancer.”[42] Less overwhelmingly confident than the Non-Hodgkin’s lymphoma synthesis, though, the bladder cancer synthesis does have a theme of positive connection. In analyzing one large study, the Update concludes “indicating that the results for bladder cancer mortality are unlikely to have been majorly confounded by smoking.”[43] Similarly: “Subsequently, follow-up reports on mortality after 1992 in several of the IARC subcohorts found elevations in bladder cancer mortality,” and then it described the results of multiple reports with promising*[44] results, but then had to tamper that optimism with explanations of an equal number of reports with minimal increases in mortality, or exposure that led to no mortality at all.*[45]

Conclusion

What should we make of this? Well, trust in the National Academies of Science to look at what really matters in science—replicate-ability of results, plausibility, and an intelligent look at confounding variables—is being earned, while mindless worship of numbers is thankfully not. And after looking through a fair amount of the Update, I for one have been convinced that

No, not bladder cancer. Not yet.

Unfortunately, maybe bladder cancer is, hiding under all this data, under all the limitations of conducting research, including the time it takes to replicate study after study, very well caused or at least strongly influenced by the herbicides and other chemicals to which so many of our veterans were exposed in Vietnam. If so, we may prove that beyond a reasonable doubt[46], and hopefully do so before it is too late to provide them with benefits and government-sponsored treatment.

On the other hand, though, it is certainly possible that these suspected connections, the sometimes fit of the data, are the result of pure chance, and smoking, and other problems of research design, or analysis. Note that none of this discussion has mentioned experiment, the best way to truly tease out causality, because of course we cannot conduct experiments with herbicides and human beings. All we are left with is math. Math and the patience to apply it correctly. Society, though, and these veterans in particular, have little use for patience.

[1] Keith R. Bishop earned a Bachelor’s of Arts degree in Psychology in 2003 from The George Washington University, focusing on cognitive neuroscience. He earned his Juris Doctor degree with a National Security Law and Policy concentration in 2018 from Antonin Scalia Law School, George Mason University, where he participated in the Mason Veterans and Servicemembers Legal Clinic (M-VETS). He has served as a U.S. Army Chemical officer since 2003, including two deployments to Iraq. He currently serves as commander, 231^st Chemical Company, Maryland Army National Guard. The views and opinions expressed in this article are the author’s alone and do not represent the views of the Department of Defense, the U.S. Army, the Maryland Army National Guard, or any other governmental agency.

[2] National Academies of Science, Veterans and Agent Orange: Update 2014 (“Update”), 515.

[3] https://www.mayoclinic.org/diseases-conditions/bladder-cancer/symptoms-causes/syc-20356104

[4] https://www.cancersupportcommunity.org/learn-about-cancer-types/bladder-cancer/bladder-cancer-treatment-and-side-effect

[5] Charles Ornstein and Terry Parris Jr., “Vietnam Vets Push VA to Link Bladder Cancer to Agent Orange”, Pro Publica, Inc., April 27, 2016, https://www.propublica.org/article/vietnam-vets-push-va-to-link-bladder-cancer-to-agent-orange.

[6] There is ongoing political and legal debates as to how close to Vietnam’s shores sailors must have been in order to draw benefits. See Leo Shane III, “Senate plans path ahead for ‘blue water Navy’ benefits fix”, Military Times, July 17, 2018, https://www.militarytimes.com/veterans/2018/07/17/senate-plans-path-ahead-for-blue-water-navy-benefits-fix/.

[7] I preface this section with an important caution. I do not profess to be a statistician or a scientist of any kind. I am only as knowledgeable about these specialized, very technical subjects, as anyone who has studied them casually. One of my main purposes for this blog entry is to be farcical: if decisionmakers with no more than my level of expertise in these subjects are satisfied with and making important policy choices based on only raw relative risk numbers and other statistical and mathematical results, without understanding the inherent flaws or limitations behind each type of measure, as I can only partially grasp myself, then their decisions will be at least as untethered from the true causalities involved as random luck, poor experimental design, and bad science allow.

[8] I will use male pronouns simply to simplify this article, and do not intent to convey that there aren’t many women plaintiffs.

[9] Federal Rule of Evidence 702(a).

[10] https://en.wikipedia.org/wiki/Pyridoxine/doxylamine

[11] The scientific consensus today is that it was pulled from shelves prematurely, due to justifiable fears of legal liability. See, e.g. Bexis, “The Ghost of Bendectin – Exorcized by the FDA?”, Drug & Device Law (website), November 17, 2015, https://www.druganddevicelawblog.com/2015/11/the-ghost-of-bendectin-exorcized-by-fda.html.

[12] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

[13] See, e.g. Standards and Procedures for Determining the Admissibility of Expert Evidence After Daubert, 157 F.R.D. 571, 571 (1994).

[14] Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1320 (9th Cir. 1995)

[15] I will not address the inherent mathematical arbitrariness of the “more than double” or “p < 0.05” standards in this bog post. Those scientific conventions have been set for one hundred years. See, for example: Gerard E. Dallal, Why P=0.05?, http://www.jerrydallal.com/lhsp/p05.htm (Last modified: 05/22/2012 22:52:42).

[16] Audrey Schnell, “The Difference Between Relative Risk and Odds Ratios”, https://www.theanalysisfactor.com/the-difference-between-relative-risk-and-odds-ratios/ (accessed August 15, 2018).

[17] Earlier I explained what “preponderance of the evidence” means. In veterans law, in contrast, the veteran wins at the “as likely as not”, or 50%, burden of proof. 38 C.F.R. § 3.102.

[18] Some sources cite 38 CFR 3.303 for these elements, but the language of that section is far less concise. Many cases cite those elements to Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004), which itself cites Hansen v. Principi, 16 Vet. App. 110, which cites Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Caluza does not use those terms, but does indicate that its own explanation is a holistic reading of “38 U.S.C. §§ 1110, 1112(a), 1131, 1137; 38 C.F.R. §§ 3.303(a), 3.306, 3.307 (1994).” Other opinions cite Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), which also cites Caluza.

[19] PL 102–4, February 6, 1991, 105 Stat 11.

[20] Jeanne Mager Stellman, et. al. “The extent and patterns of usage of Agent Orange and other herbicides in Vietnam,” Nature, 17 APRIL 2003, http://epiville.ccnmtl.columbia.edu/assets/pdfs/Stellman3.pdf.

[21] 38 U.S. Code § 1116(a)(1)(b).

[22] 38 U.S.C. 501(a) and 1116.

[23] Bladder cancer is presumptive for some other categories of veterans. See, e.g. 38 C.F.R. § 3.309(e) (radiation-exposed veterans) and Federal Register /Vol. 82, No. 9 / Friday, January 13, 2017 (Final Rule – Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune).

[24] Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. “To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection. This is contrary to the recognition in Stefl that ‘[t]he existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association.’ Stefl, 21 Vet.App. [120,] 124 [(2007].” Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009).

[25] 38 U.S.C. § 1116(a)(2)

[26] One must be deftly familiar with oncological terms to properly count the distinct conditions references in the regulations, as the regulations define many conditions, but indicate that many are sub-categories of other already-specified conditions.

[27] 38 C.F.R. § 3.309(e).

[28] Veterans and Agent Orange: Update 2014, 10.

[29] Id. at 516.

[30] Wentling, “Vets with bladder cancer could wait years for government to recognize Agent Orange link”.

[31] Returning to my point about this being a farcical article, this parenthetical term is a measurement of the Confidence Interval. That term indicates that although the statistical average Relative Risk of this study is slightly above two, it is very possible that the true Relative Risk was only 1.17, which would fall far short of “doubles the risk”. On the other hand, this study is as equally as likely to indicate that the true relative risk is 3.55, which would mean that Agent Orange exposure more than tripled the risk of mortality in the population.

[32] Veterans and Agent Orange: Update 2014, 516.

[33] Farce.

[34] Id. at 517-26.

[35] Id. at 618.

[36] Id. at 591-610.

[37] Id. at 590, 614-18.

[38] Id. at 516, 527-29.

[39] Id. at 590, 614-18.

[40] Id. at 618.

[41] Id.

[42] Id. at 527-28.

[43] Id. at 528.

[44] Promising for the veterans’ legal cases, not promising for the patients’ prognoses.

[45] The opposite of the previous footnote, of course.

[46] Note that that is not a term commonly used in science.

Summer 2018 M-VETS Student-Advisor Matt Sim

The United States military is no stranger when it comes to innovation. Some of the greatest technological innovations in human history had their beginnings in the military.  And many of those have come to take place in our everyday lives as well.  Just to name a few, we have the microwave, GPS, digital cameras, and the duck tape![1]  Now, who hasn’t used the duck tape before?  Probably no one.  Of course, not all military inventions make you feel nice and fuzzy inside.  On August 9, 1945, the United States dropped a second atomic bomb on the city of Nagasaki, Japan.  The atomic bomb killed 45,000 people in Nagasaki.[2]

The United States certainly has not slowed down its pace in pouring money into defense science and technology.  Annual spending on defense science and technology has grown substantially over the past four decades from $2.3 billion in FY1978 to $13.4 billion in FY2018.[3]

When it comes to technology these days, we cannot talk about it without talking about intellectual property in tandem. Article I, Section 8 of the United States Constitution grants Congress the power to secure copyrights and patents.[4]  Section 8, Clause 8 states: “The Congress shall have Power … to promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[5]  Back in the days, they meant “science” to refer to copyrights and “useful Arts” to  patents.

On June 19, 2018, the United States Patent and Trademark Office issued patent number 10 million.[6]  That is a lot of patents.  As a former patent examiner, I am proud to say that there are a few patents out there with my name on them. So, with so many patents out there, there must be millions of people making money with their inventions.  But unfortunately, that’s not always the case.  Of 21 million patents in 2014, 95 percent of the patents failed to be licensed or commercialized.[7]  That is tough news for the inventors.  All the hard work they put into patenting brilliant ideas sometimes just sit idle or go to waste.  Maybe the inventors should actively pursue selling or licensing the patented ideas.  That is exactly what Mr. Adams tried to in 1941.

In United States v. Adams, Mr. Adams filed for a patent for a battery in 1941; Mr. Adams’ patent, U.S. No. 2,322, 210, was issued by the USPTO in 1943.[8]  Back in the 40s there had only been 2 million patents, compared to 10 million today.  The patent related to a nonrechargeable electrical battery; the battery was an improvement over the conventional batteries at the time because it didn’t use acids and did not generate dangerous fumes.[9]  In addition, it was relatively light and the capacity for generating current was exceptionally large in comparison to its size and weight.[10]  Mr. Adams decided to show the battery to the Army and Navy.  At first, the Army did not think the battery worked, but then in late 1943, at the height of World War II, the Army concluded that the battery was feasible.[11]  The Army entered into contracts with various battery companies and found the battery to be adaptable to many uses.  They decided that it did and entered into contracts to have it made.[12]  Surprisingly (?), the Army never notified Mr. Adams about it, but Mr. Adams found the Government’s use of his battery and requested for compensation.[13]  When Mr. Adams’ request was denied and got nothing from the Government, he sued the them in 1960.[14]  Mr. Adams sued the Government under 28 U.S.C. § 1498(a): “Whenever an invention … is used or manufactured by or for the United States without license … the owner’s remedy shall be by action against the United States in the United State Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.”[15]

The Army probably knew that they weren’t supposed to use Mr. Adams’ invention without his permission.  It was pretty sneaky to start using Mr. Adams’ battery without telling him about it.  They just started to manufacture it as soon as they found out that it actually worked.  Interesting thing is that the Government tried to argue that there was nothing new about Mr. Adams’ battery because there was really no big change compared to old batteries.[16] Fortunately for Mr. Adams, the Court held that Adams’ battery “wholly unexpectedly” has shown advantages over other batteries while copying features others had discarded, and the Court also concluded that Mr. Adams’ battery was not obvious.[17]  The Court reasoned that the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries.[18]  So, the Court found for Mr. Adams patent was valid and his claim against the Government was affirmed.[19]  I am not exactly sure how much Mr. Adams got paid, but I hope he got his fair share.

There is no doubt that the bond between the military and technology can never be separated. From drone pilots to cyber warfare, the pace that society is evolving with technology does not seem to slow down any time soon, and the militaries all around the world are evolving at a fast pace as well.  And securing technological information from other governments is becoming more important than ever.   As of 2017, according to the USPTO, there were 5,784 patents that you can’t see.[20] Those inventions are under “secrecy orders,” and we don’t know what they’re for.[21] “Patents covered by such “secrecy orders” may be restricted from export, made available only to defense agencies, or even classified.”[22]

In the case of the secrecy orders, the Government isn’t really trying to pull a fast one on the inventors like they did with Mr. Adams, but they’re telling them outright that they can’t use their patented inventions for the good of society. I do understand the Government’s position and the sensitivity of certain information in the patented inventions to a certain degree. However, when it comes to taking away a person’s constitutionally granted right, extreme caution must be exercised in order to maintain the right balance between the principles of natural rights and utilitarian ideals. Hopefully there aren’t too many inventors like Mr. Adams today.

[1] Adrian Willings, 27 Military technologies that changed civilian life, https://www.pocket-lint.com/gadgets/news/143526-27-military-technologies-that-changed-civilian-life (Last visited August 19, 2018).

[2] Karl T. Compton, If the Atomic Bomb Had Not Been Used, https://www.theatlantic.com/magazine/archive/1946/12/if-the-atomic-bomb-had-not-been-used/376238/ (Last visited August 19, 2018).

[3] Derek B. Johnson, Pentagon spending more on emerging tech, https://defensesystems.com/articles/2017/12/06/pentagon-emerging-tech-spend.aspx (Last visited August 19, 2018).

[4] U.S. Const. art I, §8, cl. 8.

[5] Id.

[6] Andrei Iancu, 10 Million Patents: A Celebration of American Innovation, https://www.commerce.gov/news/blog/2018/06/10-million-patents-celebration-american-innovation (Last visited, August 19, 2018).

[7] Daniel Fisher, The Real Patent Crisis Is Stifling Innovation, https://www.forbes.com/sites/danielfisher/2014/06/18/13633/#6352bcbe6f1c (Last visited, August 19, 2018).

[8] United States v. Adams 383 U.S. 39, 42 (1966)

[9] Id. at 43.

[10] Id.

[11] Id. at 44.

[12] Id.

[13] Id.

[14] Id.

[15] 28 U.S.C. § 1948(a) (1964).

[16] Adams, 383 U.S. at 48.

[17] Id. at 51.

[18] Id.

[19] Id. at 52.

[20] Arvind Dilawar, The U.S. Government’s Secret Inventions, https://slate.com/technology/2018/05/the-thousands-of-secret-patents-that-the-u-s-government-refuses-to-make-public.html (Last visited, August 18, 2018).

[21] Id.

[22] Id.