Court holds VA Secretary in civil contempt

FOR IMMEDIATE RELEASE – November 28, 2014

Says it may fine individuals in the future, should negligence continue

A panel of judges of the U.S. Court of Appeals for Veterans Claims found the Secretary of the Department of Veterans Affairs in civil contempt of court after repeated mistakes led VA to ignore a restoration of a 100-percent disability claim for post-traumatic stress disorder for two years.

“This was a warning shot across the bow,” said Glenn Bergmann, a former VA attorney and partner at the law firm Bergmann & Moore.  “Although the court acknowledged that VA routinely ignores veterans’ pleas for action on their languishing claims, the court made clear that it would not tolerate being disrespected by VA’s failure to respond to its remand order.”

Even though the court ordered a remand in 2012, which should have forced VA to address the case, and the veteran sent eight letters asking about his case, VA argued a computer-entry error had delayed the case.

In this case, the veteran had been receiving 100 percent disability compensation for his PTSD claim; VA lowered the claim so that he no longer received payment because administrators said he had not gone to his doctor’s appointments; the court remanded, or sent the claim back to VA, saying the veteran may have had a good reason for not going to his appointment and should be allowed to try to go again; and then VA, rather than attending to the case, entered it into its computer system incorrectly as having been closed and then ignored the case, even after receiving letters from the veteran and further orders from the court.

“The secretary does not dispute that there was a ‘clear and unambiguous order from this court,’ and the secretary has a duty to expedite proceedings in remanded cases,” the court wrote. The court said the case showed “gross negligence” and was an example of what veterans face at VA. “We know that many veterans are frustrated because this court had remanded their claims and VA seemingly has acted with little urgency,” the court wrote. “The court is aware that in a number of these cases VA has not acted after letters have been written, by the veteran and his or her counsel, asking for prompt action.”

The judges ordered that VA pay the litigation costs of the veteran. They also required that the order be sent to “multiple VA officials” to create safeguards to prevent such an error from happening again.

But the court warned that it may fine individuals in the future.

“The malfeasance of individual actors throughout the agency–and not the taxpayer–is responsible for the parade of errors that ensued following the court’s remand, resulting in unnecessary and avoidable delay,” the court wrote. “Perhaps, should such conduct persist in the future, the court will be forced to explore sanctioning individual actors whose gross negligence and lack of diligence results in unwarranted delays in the processing of this court’s orders.”

The veteran appealed his case after VA reduced his 100 percent disability rating for PTSD to noncompensable, suggesting that he had not appeared at his scheduled medical appointments. But, because VA had not proven that the man did not have a good reason for not going to the appointments, the Court of Veterans Appeals remanded the decision until he could go to an appointment.

Nothing happened, and after 19 months, the court ordered VA in February to respond to the remand. VA argued that “personnel at the board mis-entered the court’s decision” in the computer system, and that, therefore, they hadn’t taken any action on the PTSD claim.

But the veteran had also sent eight letters to VA asking about his claim, none of which received a response. At least one of the letters had been sent by certified mail, and all contained enough information for VA to have checked the veteran’s file and see that an incorrect entry had been made in the computer system.

The court asked if VA had received the letters and, if so, what happened to them. A VA attorney said she did not know.

In April, the court asked for a more in-depth response, as well as why the court should not apply sanctions for VA’s refusal to follow orders.

VA acknowledged that it did, in fact, receive four of the letters. VA officials said “problems VA had in handling the mail” led to no action after the letters were received. VA blamed a backlog in mail it received from the White House.

And, VA argued, no sanctions were necessary because it was simply an administrative error, and because, in May, after the court had ordered the board to respond to the remand, the Board of Veterans Appeals had ordered a restoration of the veteran’s 100-percent disability rating back-dated to when it had originally been reduced.

VA argued that, with typical delays within its system, it would have taken about that long for the veteran to receive compensation in any case “considering that a timely adjudication would have likely taken some months.”

The veteran’s lawyer said the delay forced the veteran to take early Social Security benefits at a reduced rate when he turned 62, which caused him to lose tens of thousands of dollars.

The court ruled VA Secretary Robert McDonald was in contempt because the delay was”not the result of an overburdened system; rather it was a disregard for the importance of compliance with a court order.”

The wrote that this case stood out even above thousands of backlogged cases.

“Had even one of his letters prompted any meaningful inquiry from VA, the error would have been discovered,” Kasold wrote. “However, the callous disregard for the veteran’s assertion that this court had granted him relief–had ‘set aside’ VA’s improper reduction of [his] 100% PTSD’–resulted in not just delayed further action, but rather, in no further action at all by VA despite the court-ordered remand. ”

As VA has focused on initial claims cases from veterans to meet its 2015 goal of getting rid of the claims backlog, Bergmann & Moore has seen veterans’ appeals inch ever higher. As of this week, there are 525,044 initial claims pending, while appeals cases have soared to 283,000 appeals cases—up from 263,000 appeals cases at this time last year. In many cases, Vietnam, Korea and World War II veterans have waited years, and even decades, for compensation.

“On behalf of veterans and their attorneys, we hope that new Secretary Bob McDonald will take the court’s message seriously and order a review of VA appeal remand procedures,” Bergmann said. “Despite statutory safeguards that such claims be accorded ‘expedited processing,’ too often they sit for years untouched.  It is certainly no way to treat our Veterans.”

Media contact: Kelly Kennedy, 720-244-0434 (cell, available today), kkennedy@vetlawyers.com

Bergmann & Moore, LLC, is a national law firm dedicated to serving the needs of veterans in compensation claims before and against the Department of Veterans Affairs. The firm’s partners are former VA attorneys who are very familiar with the VA system. Bergmann & Moore handles all kinds of cases, but has a concentration in claims involving PTSD, military sexual trauma and complex medical issues, such as brain cancer or degenerative issues, veterans exposed to Agent Orange often face. 

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