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Part Two: The Long and Winding Road – the VA Disability Process.
This is a continuation of an three part article on the VA Appeal Process
The following explanation of the VA Claims process is courtesy of vetadvocates.com AND Lawyers4Veterans.com (links provided within the article). Frankly there is nothing sinister or secret about this long drawn out process, readers can get the same explanation or something quite close to it from the VA or those VSOs closely tied to the VA.
The intent of these growing numbers of veterans’ legal advocacy websites is to ensure our youngest generation of Veterans knows and understands we have legal rights to protect our Veterans’ Rights. There is a move afoot to ensure we understand this process. Questioning the fairness or motivation behind this very old bureaucratic process is something we cannot leave up to any organizations that are too close to the VA upper management system, the claims system, or even Congress.
We surly cannot leave it up to Veterans groups that prefer not to legally confront the VA. One does not get a Congressional charter without being non-confrontational with the VA system. Note that despite efforts over the years to streamline this process and make professional legal advice to Veterans affordable and accessible has traditionally come from either the Senate or other committees in the House except the Veterans Affairs Committees. In every scenario it is usually opposition and resistance in both the House and Senate Veterans Affairs Committees that kills or waters down Vet access to a good lawyer. One needs only understand this key and which Veterans groups really have access to these committees to figure out how to try breaking this stranglehold over the VA system that exists on the long and winding road. Below is what the transformation of a VETERAN entitlement earned program to a need based welfare system leads to. In fact, this is what most professional attorneys outside the VA system will tell you as well as our best and brightest VSO National Service Officers will admit. Either way the process is still designed to discourage Veterans or wait us out for a bureaucratic death. For a process that some VSO still oppose as not needing professional legal protections, note how many legal terms are used!!! http://www.vetadvocates.com/claims_proc.htm Robert L. Hanafin
Major, U.S. Air Force-Retired
Veterans Today Staff Writer
Editorial Board Member
VA DISABILITY PROCESS OVERVIEW
Claimant’s Burden: The United States Congress created a totally and completely unique veterans’ benefits system. Under the veterans’ benefits system a veteran, a veteran’s dependents or a veteran’s survivors are required only to submit a "plausible claim" for an entitlement to VA benefits. Once a plausible claim has been submitted, the burden to fully and completely develop evidence to support that claim is by federal law upon the Department of Veterans Affairs.
Entitlement to a Decision: A claim must be in writing. A claim may be submitted at any one of 58 Regional Offices of the Department of Veterans Affairs. Every state in the United States has at least one Regional Office. There are also Regional Offices in Puerto Rico and the Philippines. There is also an office in Washington, D.C. for those individuals who live outside of the United States. Once a claim has been submitted to a Regional Office, the Regional Office is required to render a decision. The decision should only be made after a fully and sympathetically developed consideration of the evidence. The veteran will receive a written notice of the decision of the Regional Office. This notification of action will only inform the veteran that the claim has been granted or denied.
(Note: In Major Hanafin’s scenario the VA form sent in requesting reimbursement for out of pocket expenses went to the Regional Office, center that handles adjudication of reimbursement request, and only to the local VA Hospital as a courtesy. The form was never adjudicated by either the Regional Office or VA center that adjudicates reimbursement decisions. The request was stopped (or trashed) by the Director of the VA Medical Center without any decision granting or denial from the VA Regional Office. What I’ve learned and where I’m going with this is that the burden is on us VETERANS to keep the VA train on track all the way along the long and winding road. This more than anything requires professional, affordable legal counsel and advice. I’m extremely reluctant to depend on any VSO service officer who knows a little more than I do to look out for my interests. Frankly, I would have more confidence in an attorney that specialized in VA rules and regulations. Anyway, that’s what I can afford to do, and that’s not right or fair to us VETERANS as a class or group. Make no bones about it WE are part of a Warrior Class in a nation that is not a classless society).
Notice of Disagreement Requirement: In the event that a veteran desires to appeal the denial of benefits, a Notice of Disagreement is required to be submitted by the veteran to the Regional Office. There is no required form for a Notice of Disagreement. The Notice of Disagreement must simply express disagreement with the denial of benefits. Upon receipt of a Notice of Disagreement the Regional Office must prepare a Statement of Case.
(Note: In Major Hanafin’s situation an official Notice of Disagreement was filed once I filed a complaint with the VA Inspector General and my letter was accepted by the Office of the Secretary of Veterans Affairs. However, what I’m scratching my head about is that the long and winding road leads to the Director of my local VA Medical Center NOT the VA Regional Office in Columbus, OH. (HUM?) Anyway, I’ll adapt, but prefer it be handled at the Regional Office as dictated by VA regulations. That’s another story).
Statement of the Case: A Statement of Case is required by law to explain to the veteran the reason for the denial of benefits. The Statement of Case should also provide notice to the veteran of the pertinent or controlling statutes and/or regulations relied upon by the Agency to support the decision to deny benefits. The Statement of Case will inform the veteran that in order to perfect an appeal of a denial of benefits, the veteran must execute and submit a VA Form 9. This Form will be included in the mailing from the Regional Office with the Statement of Case.
(Note: Major Hanafin is about to receive one of these shortly, this should be interesting if not frustrating).
Perfecting the Appeal: In order to perfect an appeal for review of a denial of benefits by a Regional Office, the veteran must not only file a Notice of Disagreement, but must timely file a VA Form 9. This is a two-step appeal process; completing the first step and omitting the second step will not result in a perfected appeal. The VA Form 9 must be filed either within 60 days of the receipt of the Statement of Case, or within one year of the Notice of Action by the Regional Office denying the claim, whichever is later. (Note: OK, the rest of this will be new to me, so I will have no comment until I personally experience this part of the long and winding road. However, I’ll keep our readers informed. Major Hanafin)
Actions by the Board of Veterans’ Appeals: Once a veteran has perfected an appeal, the claims folder is transferred to the Board of Veterans’ Appeals in Washington, D.C. The BVA is the final administrative process before going to Court. However, here is where the most delay, and then delay again is highly possible. How? The Board may take anyone of four different actions in a veteran’s appeal. (1) The Board may affirm the decision of the Regional Office. This would be an adverse decision (denial) to the veteran and would allow the veteran to appeal to the Court. (2) The Board may reverse a decision of the Regional Office (approve) and grant the benefits sought by the veteran. In this circumstance, the decision would be favorable and there would be no basis for an appeal to Court. (3) The third option is for the Board to remand the case (simply put delay the case) for further development to the Agency of Original Jurisdiction, the Regional Office. (Or in Major Hanafin’s situation the Director of the VAMC who has already made up his/her mind to trash the request to begin with – DAH!) A remand is not an adverse decision. A remand merely continues (delays) the administrative appeal by returning a case to the Agency for further proceedings (this is the key to the institutionalized deny-delay-until Veteran die concept)
Once the Regional Office receives a remand, the Regional Office is required to complete the instructions or directions for further development provided by the Board. The length of time this process takes is dependent on the nature of the remand instructions. (Keep in mind that WE the Veteran have the burden of ensuring the VA train stays on the long and winding road!) In the event that the Regional Office confirms the prior denial, the Regional Office will issue a Supplemental Statement of Case. Following the receipt of a Supplemental Statement of Case, the veteran’s claims folder should be returned to the Board to complete appellate review. Upon return to the Board, the Board still has all four options available as though this was an original appeal. (That our readers is a very scary proposition that in no way looks like giving us VETERANS the benefit of a doubt. Major Hanafin) AND if you thought that was confusing enough, (4) the final option for the Board is what is called a referral. A case is referred back to the Agency when the Board feels that an issue or a claim which should have been developed was not, and the Board directs the Regional Office to decide that issue and give the veteran notice of that decision. (Here we go again – deny-delay-deny-until we die). In this circumstance, the veteran is required to file a Notice of Disagreement (again) with such ratings action. Another circumstance in which a referral would be appropriate is when the Board failed to include in the Statement of Case a claim or issue raised by the veteran in the Notice of Disagreement. In such a situation, a referral back to the Agency of Original Jurisdiction would be issued directing the Regional Office to issue a Statement of Case on the omitted claim or issue. (Readers a blind man or woman can see where the VA system has the opportunity to deny-delay-delay again, and delay again until the Veteran dies. Frankly, that’s not gonna work with me, because I’m getting a lawyer and do not plan on dying anytime soon. That said, it is the Vietnam Vet or older (I’m a relatively young Vietnam Vet) hitting their late 60s to 70s and either PTSD or Agent Orange taking its toll that will be hardest hit by this long and winding road to death. We younger Veterans have time. Time, time, time is on our side in most cases minus those youngster who succumb to PTSD (suicide) or whatever crud they bring back from Iraq, Afghanistan, or whatever tests the military has exposed them to (vaccinations come to mind). However, in relative terms to my generation time is on our side to no shit break this never ending stranglehold over the VA system and not be part of its eventual destruction. In the final analysis since we are a group treated equally when it comes to being screwed, we can’t do this with the legal profession. Hell, Congress has forever been knee deep in lawyers and most are NOT former JAG officers. Major Hanafin)
Judicial Review: A veteran has 120 days from the date stamped on the adverse BVA decision to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. A Notice of Appeal which is filed after 120 days will be accepted by the Court but will be ultimately challenged by the VA’s General Counsel, and in all likelihood the appeal will be dismissed due to the untimely filing of the Notice of Appeal. (As any Veteran with half out brain tied behind our back can see – THIS IS MOST LIKELY THE PRIME TIME WE NEED AN AFFORDABLE LAWYER!!! If we though dealing with the Regional Office will kill you, you ain’t seen anything yet. I was recently reminded that far too many Veterans have died as this system waited them out. Major Hanafin).
Reconsideration of the Board of Veterans’ Appeals Decision: VA regulations provide that a veteran at anytime may ask or seek Reconsideration by the Board of Veterans’ Appeals of any prior adverse decision. In the context of a current decision, if the veteran files a Motion for Reconsideration within 120 days of the adverse decision, then the time for filing a Notice of Appeal to Court has been tolled. Tolled means it is stopped or suspended. The time for filing a Notice of Appeal when a Motion for Reconsideration has been filed within 120 days of an adverse Board decision suspends the time for filing a Notice of Appeal in Court until the Board has acted on the Motion for Reconsideration. Upon receipt of the decision on the Motion for Reconsideration, the date file-stamped on the Board’s letter denying the Motion restarts the 120 day time period. This means a veteran has 120 days after a decision denying a Motion for Reconsideration to file an appeal with the Court. Although there is no time limit for filing a Motion for Reconsideration, any Motion for Reconsideration filed after 120 days, while it will be accepted and decided by the Board, DOES NOT toll the time for filing a Notice of Appeal. This is a common mistake and misunderstanding which many pro se veterans make. The BVA’s Notice of Appellate Rights is somewhat confusing and misleading in this regard. A veteran should consult with a competent veterans law practitioner after receiving any decision from the Board of Veterans’ Appeals.
*The foregoing "Overview of the VA Claims Process" comes from the National Organization of Veterans’ Advocates webpage at: http://www.vetadvocates.com/claims_proc.htm
AND the Law Offices of Robert A. Friedman and Associates, 3410 Broadway, Everett, Washington State 98201. http://www.rafalaw.com/VAdisability3.html
Related Posts:
Short URL: http://www.veteranstoday.com/?p=7008
Posted by Robert L. Hanafin on May 29 2009, With 0 Reads, Filed under Vet News. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.
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Everything is being denied now, part of their streamlined "screw the vet" process.
Appeals…like asking satan for ice cream.
g
I am an IU totally disabled veteran and my appeals process was an almost eight year nightmare. I have never seen so many roadblocks thrown up in front of an individual as I saw then. I honestly believe that the D.V.A. has mid level and upper level management direction which specifically tells the lower level adjusters to hold down the money outflow. The only way to do that is to deliever low quality service to disabled veterans en masse.
I truly believe this.
CWO3 Tom Barnes, USCG (Ret.)
[Quote] Everything is being denied now, part of their streamlined "screw the vet" process.
Appeals…like asking satan for ice cream. g [End Quote]
Gordan,
Just told the wife this morning that the best motivational speakers are those with a sense of humor, can poke fun at the socio-economic-political-cultural obsurdities of our nation, especially national leaders and instead of turning people off MAKE THEM THINK. Even those of us who last that basic key to survival. Meaning I count myself among those who once upon a time didn’t know how to think for myself.
Like asking Satan for Ice Cream, now that’s a fitting analogy.
[Quote] I am an IU totally disabled veteran and my appeals process was an almost eight year nightmare. I have never seen so many roadblocks thrown up in front of an individual as I saw then. I honestly believe that the D.V.A. has mid level and upper level management direction which specifically tells the lower level adjusters to hold down the money outflow. The only way to do that is to deliever low quality service to disabled veterans en masse. I truly believe this. [End Quote].
Tom,
You can stop honestly believing Bro, that infers you are not sure but…It would be more approprate to say, because that was the basis of my complaint to the VA Inspector General and General Shinseki’s office that they bought. In sum, I complained that, "Mid level and Upper level management (not necessarily in that order) direct lower level adjusters and even VA physcians at hospitals to cut corners in adjudication of Veterans Claims or treatment at medical facilities – with holding professional information comes to mind, with the objective of COST SAVINGS over VETERANS care."
You can now say there is documented proof that this is TRUE, and still is under the Obama Administration, because (1) Secretary Shiseki is not God, he can’t be everywhere, and (2) Shinseki has failed to do the key thing required to at least temporarily clean house at the VA. That is replace upper, and middle management and call for an impartial survey and investigation of the entire VA system by as best can be decided neutral party, I frankly do not consider the Department of Veterans Affairs Inspector General as a neutral party, they may assign an inspection case number, but that’s about as far as they are going to go. In fact, at any time in the so-called investigative process they can legally ignore the Veteran, Veterans Group, or Class Action Law Suit that filed the original complaint. Not only that but it would be dumb to serious believe the VA/IG is going to go out of their way to make the VA look bad the TRUTH be damned.
The documented evidence that what you say is true Tom, not an assumption is just point at (1) what really motivated the theft of VA databases containing OUR personal data that the VA is now paying thousands to claimants of identify theft (true or not) that could be going toward Veterans medical care and adjudicaton that no shit gives the Veteran the benefit of the doubt instead of a SHAM (well SHAME). (2) The shredding or intentional trashing to Veterans claims or related paperwork at several Regional offices across the nation, and these being only those that were caught in the act, (3) The notorious VA MEMO on PTSD directing adjudicators and VA medical personnel to downplay or deny PTSD or any mental condition that could potentially lead to compensation. Where do you think the Army got the idea to pull the "Personality Disorder" card from, the VA of course. For those of us who’ve been careerist, especially if we worked at the Pentagon, the last thing on our mind was the VA. For the Army to know that an Army Shrink or underling giving a diagnosis of ‘personality disorder’ would end a career or restrict access to VA benefits, and keep Troops burned out from endless deployments from getting VA compensation, the Army had to be told that by the VA. One only need connect the dots to see that Pentagon/VA coordination and cooperation can have both GOOD and BAD impact on VETERANS. How, the VA sees it’s main mission as COST SAVINGS – which the collective we must put pressure on Congress to no shit CHANGE, the main role of the Army, and Marines is to keep troops in combat period – the main emphasis of all the services is on keeping military members in a career. Once a military member decides to not make the Armed Services a career WE are of little use to the Pentagon and will be treated as such.
Hell, organizations like the Military Officers Association of America (MOAA), the Military Coalition (TMC), and the various enlisted organizations (Marine Corps League comes to mind) would not be in business nor really needed if military retirees haven’t been traditonally screwed by both the Pentagon and Congress in the name of (no not God) COST SAVINGS which to these folks saving other people’s money to waste on other things is a religion.
I am a Veterans Service Representative, and I can tell you that we are told, “the name of the game is to not pay.” We have to be very fast as fast as we can in processing the claim, sacrificing quality for quantity. That means the development that needs to be done on the case is not done the way it should be, thus many veterans get denied or their percentage is not as high as it should because we are told “the name of the game is not to pay.”
Someone should be able to come in and interview the lower level claims processors in complete confidentiality and you will find out a lot.
Kimberly,
I wish that our VA Claims adjudication system as you witness it was like our U.S. Citizenship Application adjudication process. The comparison would be that American Veterans (both citizens and legal immigrants) get the shaft in the rush to NOT PAY, that in fact was the nature of my complaint with the VA/OIG, but you of all people know how that will go. But I’m trying.
I also was a lower level VA Claims examiner back in the day under Max Cleland, in fact I believe Brother Cleland and myself were among the minority within a minority of Vets working for the VA at that time. Of course all the high level positions were filled by WWII Era Vets.
Anyway, very little has change since the Vietnam War, the VA Claims process is just as bulky and unweildy as ever. I also can relate when you say that as the pressure builds adjudicators are pressured to rush cases with either an emphasis on denials or emphasis on getting as many Vets approved as possible until the outside ferver dies down.
That is how I compare the Justice Department’s U.S. Citizenship examination process under Bill Clinton, especially in California. I was a Immigration Service mid-level adjudicator. In fact, the VA had hired us as two year temporaries in order to deal with the back log of American citizen applications. That system too became politicized.
Adjudicators were handling anywhere from 20 to 30 case a day, pressure was on us to do American citizenship interviews in 15 minutes and make a decision in that time, heck we ended up continuing most applications for either no fingerprints, no FBI background check or anything that didn’t complete the application. We ended up with a greater backlog then when our contracts expired as President Clinton left office. I can only assume that since not too many newly made American citizens were voting Republican in California at the time that the Bush Administration not only gave little but lip service to the Immigration Service and U.S. citizenship, but shifted from selling American citizenship for VOTES to a carrot for military recruitment. Now, many of same legal immigrants who enlisted but failed to get their citizenship are being asked to leave. That at least is the feedback we are getting from progressive Veterans activists in the Southwestern states.
Once the Hispanic troops in Iraq and Afghanistan get wind to that be it true, half truth or whatever, we will face a similar situation as when Black troops refused to fight in Vietnam or march on Black neighborhoods during the Sixties – you watch.
I agree with Kimberly. It’s a numbers game. First you have veterans saying the system needs to be faster, then they want more quality and at the same time, they don’t want to pay more for a larger government. The VFW would a lawsuit in 1999 and the congress passed the Veterans Claims Adjustment Act of November 2000. This stated the DVA has a duty to develop the claim. This started to cause the backlog we’re seeing today. Also other veterans won lawsuits against the DVA wich caused the DVA to require more information on the 21-526 (in 1990 it was two pages long), thus complicating the processes.
When I worked at the BVA, we first started with 20 cases a week we had to develop. It then went to 25 cases a week. It didn’t matter if the case was an inch thick or filled up 20 bankers boxes of documentation.
Unless the DVA is going to spend more money hiring VSR’s and spend more money training them and pay them more, your going to constantly have delays and lower ratings.
They gring these people in as GS 7′s. These people are under a whole bunch of stress. They have to know all the reg’s, anatomy and medical terms and just a few mistakes and they can be fired or denied a promotion or even a step increase pay raise. Most people can not handle the pressure and there is the rub.
If the DVA hired 1000 individuals nation wide tomorrow, after three years of training, less than 200 would be working for the government. And yet the training by the government is inconsistant. Some reps get a combination of class and OJT and other get more OJT and less class. The DVA needs to set up a school were they send all their new reps to once to twice a year for a three year period. They also need to send out about 100 test cases to all the RO’s to see how the cases are adjudicated, then go to each RO and retrain the VSR’s to the standard they expected the cases should have been adjudicated to. First the DVA needs the money to do so.
You can not expect to have claims adjudicated in a timely manner with poorly trained adjudicators that are overwhelmed with work. We as the Veterans, when we complain about the speed, we forget to complain about the quality. If we don’t complain about both, we will continue to have a high appeals rate.