VA erects roadblocks for vets to end bureaucratic backlog

by Glenn Bergmann and Joseph Moore

When a Vietnam war veteran enters the hospital distraught that he might hurt himself, he shouldn’t have to think about making sure he states his medical condition clearly on the form he submits to the Department of Veterans Affairs for benefits.

A veteran dealing with the aftermath of military sexual trauma should not have to consider what percentage her mental health status should earn in a disability rating.

And a military police officer “blown up” three or four times on the streets of Baghdad and dealing with short-term memory loss shouldn’t have to ensure that he includes all the proper documentation to prove his initial claim so the Department of Veterans Affairs does not reject it.

Yet the final listed on the Federal Register and scheduled for enactment in March require just that. We fear that, if Congress does not step in, many of the  600,000 veterans who now file so-called “informal claims” will face longer wait periods for benefits, be denied benefits for technicalities or become so frustrated by the bureaucratic process that they give up.

As it stands now, a veteran who writes a note—an email, a letter, a message scrawled on a torn bit of paper gown from a hospital room—may establish an informal claim. If that veteran later disagrees with VA’s decision on that claim—he believes his hearing loss is, in fact, caused by something that happened while he was in the military, and that VA should supply a hearing aid—he can write another letter stating that he disagrees with the decision.

Or, a veteran may submit medical records that show he or she has a new health condition. A hospitalized veteran does not have to fill out a form to show he has Agent-Orange induced brain cancer: He sends off his medical records.

In March, that will change substantially. Veterans will need to fill out a pre-printed form, which isn’t as simple as it sounds.

However, Rep. Ralph Abraham, R-Louisiana, introduced a bill, H.R. 245, that would fix the problem. In March, the law will define “claim” as a “written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.”

Abraham’s bill changes the definition to “a communication in writing” and deletes the “application form” piece, and defines “formal claim” as a claim submitted on a specific VA form. It eliminates VA’s definitions of “complete form,” as well as any requirement for the veteran to understand exactly his or her ailments or the disability ratings attached to them, and essentially reverts the law back to where it stood before.

When VA employees receive informal claims, they would then provide the veteran with a formal application. It also requires VA to keep a dated copy of the original dated claim. That way, if the veteran’s benefits aren’t awarded for months or years, they can be back-dated to the original informal claim, as they have been in the past. Veterans would then have 180 days after filing the informal claim to file a formal claim—which gives them time to request records, ask for help and go to medical appointments.

The bill was sent to committee last week, but you can expect to hear more about it from the Veterans Service Organizations.

American Legion leadership has come out in support of the measure, saying in a hearing last week that as the new law stands now, “VA is  sacrificing veterans’ choices and options in the interest of making the claims system easier for VA to work with. However, the disability claims system does not exist to serve VA; it exists to serve the veterans disabled through service to their country.”

Without this bill, to file a claim, the veteran will need to first find all the records he needs to support his claim. Sometimes that means requesting them from VA or the military. Sometimes it means finding witnesses to confirm he was exposed to an explosion in 2003 in Kandahar, Afghanistan, that’s not noted in his military records. Always, it means understanding what he needs in the first place to prove his claim.

That flies in the face of decades’ worth of court decisions that have maintained veterans do not need to provide anything other than their symptoms and a general description of what’s wrong. “This is because the claimant is not expected to have medical expertise,” the court found in Clemons v. Shinseki.

VA is also required to investigate “all possible in-service causes of that current disability, including those unknown to the veteran,” according to the decision in Schroeder v. West. And, VA is required to consider all issues raised by the veteran, found the court in Robinson v. Peake—not just those listed properly on a form.

In some cases, what VA will require is impossible. VA is supposed to help the veteran develop his claim and look for facts to support it, found the court in Fleshman v. Brown. Does that mean, if VA finds a new piece of evidence, the veteran receives a new start to his claim, pushing back potentially months’ worth of benefits?

What is not clear is how VA’s oft-trumpeted non-adversarial paternalistic system will survive now that veterans must precisely state their claims or risk having the document rejected as incomplete.  VA could use the specificity requirement to reject claims.

The new rules potentially benefit the most-educated and least-damaged veterans, leaving those with little education or few resources to wait the longest as they try to wade through the bureaucracy. Enlisted veterans generally have no legal training, often enlisted without the benefit of a college education, and they may be working with the disadvantage of a traumatic brain injury, PTSD, substance-abuse issues or chronic pain that entails heavy medication. Homeless veterans may find their top priority is not reviewing VA disability cases at the local library to figure out the best way to file disability claims.

And the change comes with little or no notice for the veterans or the veterans service officers who, for decades, have assisted veterans with their claims. Veterans of Foreign Wars, the American Legion and we have all come out against the new rules.

So why might VA support such a change? In the new rules in the Federal Register, they mention “eliminating the claims backlog” six times. VA has 523,925 cases pending just for pension and disability, with 285,926 appeals cases pending.

The argument could be made that standardizing the forms could hasten processing of claims. But the Federal Register lists several changes that will hurt veterans:

• VA plans to reject all claims that don’t come in on a pre-printed form, rather than the submission date as the date of the claim.

• VA has no specified amount of time in which it must inform the veteran paperwork is missing.

• Veterans who file claims electronically may keep their initial filing data, as long as they submit all of their paperwork within a year. Those who file paper claims, often the elderly or those who can’t afford Internet access, won’t get an effective claim date until the claim is complete.

We fear that many of the veterans will give up, and that will, in fact, help VA reach its goal of eliminating the backlog.

In fact, the courts have feared that, too. If VA were to make repeated request for information until the veteran gives up, that “would not be in keeping with the veteran-friendly nature” of the benefits system, found the court in Locklear v. Shinseki.

The rules will not help the 22 veterans who kill themselves every day; the veterans who remain homeless because they can’t get the help they need; or the veterans whose illnesses may progress as they go months or years without benefits.

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, Gulf War illness and complex medical issues, such as brain cancer or degenerative issues, veterans exposed to Agent Orange often face. For more information, to submit news or to sign up for an email version of this blog, contact Kelly Kennedy at kkennedy@vetlawyers.com.

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