Veterans Law Prof Blog

Delay in VA Appeals - Some Helpful Suggestions

Last week, Ken Carpenter, a founding member of the National Organization of Veterans’ Advocates (NOVA), testified on the Hill before the House Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs.  

Mr. Carpenter cited many of the statistics that are troubling to practitioners in Veterans Law: after the VA’s adjudication process at the Regional Office level 40% of cases are remanded from the Board of Veterans’ Appeals back to the Regional Office for further development ; over ½ of cases heard at the Court of Appeals for Veterans Claims are remanded for further development; and the inordinate amount of time it takes a veteran’s claims to travel from the Regional Office after a substantive appeal is filed to the time a decision is given by the Board. 

When looking at all the delay and what appears to be ineffectual development of cases at the regional office levels, Mr. Carpenter suggests on behalf of NOVA some very interesting changes to the VA process.

1)     NOVA recommends Congress eliminate the requirement of the VA to issue a statement of the case and the requirement of the veteran to file a second appeal to the Board of Veterans’ Appeals (the VA Form 9).  This would mean that the Notice of Disagreement sent in by a veteran letting the VA know the vet disagrees with a decision would be the only appeal necessary to go to the Board.  Current numbers reported by the Board and the Court indicate that removing these two steps could remove THREE YEARS from the current process.  (see the Board’s most recently available report here:  http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2013AR.pdf  and the Court’s here: http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf )  In my experience, most of the Statements of the Case issued copy large portions of the CFR (up to 40 pages sometimes) and send them to the veteran in order to educate the veteran about what is necessary to prove her claims.  Then the Statement parrots the same language as the initial decision the veteran received.  It does seem that this process has lost its purpose somehow and could stand to be revised or eliminated entirely.   

2)     Second, Congress should require the VA to certify and transfer a claims file in an appeal to the Board no later than 60 days after the VA’s receipt of a substantive appeal (Form 9).  It currently takes 18-24 months for this to occur.

3)     Third, Congress should amend statutes to make certain that remands from the Board and the Court to the Regional Office are treated with the utmost urgency.  There is an extraordinary amount of delay in this area.  The Board’s annual report for 2013 indicates that after remand it takes a year for the Regional Office to complete the order.

 

These suggestions really reveal the extent of the delay built into the system in three points of the appellate process that someone who does not live and breathe the minutiae of veterans’ law practice might not understand.  Congress needed to be alerted to the issues and given specific methods to deal with them that aren’t drowned out in the cacophony of complaints about how long the process is taking for veterans with no clear guidance on how to fix it.  Now, it will be interesting to see how Congress responds. 

You can find Mr. Carpenter’s testimony here: https://veterans.house.gov/witness-testimony/kenneth-m-carpenter

 

Proposed Cuts to the VA 2015

Anyone wondering how the Federal Government’s ballooning debt figures may affect veterans benefits may have found some answers in the CBO’s most recent publication “Options for Reducing the Deficit: 2015-2023.”  Two recommendations made to Congress that can lighten future monetary obligations to veterans made it into the recommendations. 

The first recommendation is to cut Total Disability due to Individual Unemployability (TDIU) payments to veterans over 65 years old.  TDIU is a benefit that attempts to compensate veterans who are unable to secure substantially gainful employment due to their service-connected disabilities.  These veterans have disabilities that do not add up to a 100% disability rating on their own, but are considered “totally disabled” due to the cumulative effect of these conditions on their ability to earn a livelihood.  There are many conditions that need to be met to receive TDIU and the term “substantially gainful occupation” is such vague regulatory language that it is always in play when this rating is being contemplated.  Suffice it to say for purposes of this discussion, TDIU helps disabled veterans who cannot sustain work above marginal employment due to their connected conditions. 

With the proposal, the CBO contemplates that the VA could save 15 billion dollars over the next 8 years.  The premise of the proposed cut is that veterans who are past Social Security’s retirement age no longer need the TDIU benefit because they would not be working anyway.  Additionally, the CBO points out that these vets will be receiving their normal VA disability payments and can most likely qualify for Social Security payments.  What this recommendation fails to take into account (and the CBO readily concedes) is that for a veteran who receives TDIU, the likelihood he or she has been able to work consistently may be very low.  This may significantly affect the veteran’s ability to qualify for full Social Security payments or to have a retirement nest-egg built up. You can read about the proposal here:  https://www.cbo.gov/budget-options/2013/44757 .

The second proposal of the CBO affecting veterans benefits deals with severing benefits for seven specific conditions that the GAO has identified as “generally neither caused nor aggravated by military service.”  These seven conditions are: chronic obstructive pulmonary disease, arteriosclerotic heart disease, hemorrhoids, uterine fibroids, multiple sclerosis, Crohn’s disease, and osteoarthritis.  The CBO estimates this could save the Federal Government 20 billion dollars over the next eight years. 

In favor of this recommendation, the CBO relies on an often heard argument – the VA system should be more like a civilian system and should not compensate for conditions that are unrelated to military duties.  The CBO also suggests that “A broader option could eliminate compensation for all disabilities unrelated to military duties, not just the seven conditions identified by GAO. For a condition such as arthritis, for instance, which may or may not result from military duties, the determination of whether the condition was related to military activities could be left up to VA.”

I am not opposed in theory to conditions that are not caused directly by military duties being determined non-compensable.  That may be an unpopular statement, but it would be naïve not to recognize that cuts may be made to the VA system and we do need to start looking for places where the least pain for veterans will be felt. However, I am very concerned about how that would be done.  The CBO suggestion means that in addition to the many things the VA is required to determine when considering whether a disability may be granted benefits (veteran status, a current disability, an in-service event, and a nexus between the disability and event), it may now also be required to decide if the veteran’s military duties actually caused  the condition.  That is definitely not as easy as it sounds.  In addition to showing the arthritis condition was caused by events during a veteran’s service, the veteran will also have to find a doctor (presumably) who will determine which activities led to the condition.  Then the VA’s rating officer will have to make the determination if these activities were part of the veteran’s military duties.  This suggestion by the CBO will fundamentally change the determination and delivery of veterans benefits and will undoubtedly shift the burden in this “veteran-friendly” system onto the veteran to prove what a military duty is.  As one former NCO I spoke with put it, “When a Sergeant tells a Private to do something he does it, whether it was a part of the Private’s official duties or not.  When the Private gets hurt, how in the world will you ever be able to prove ten years after the fact that he was verbally ordered to do that action?”  Good point.  It seems like a bad idea to require more of an already over-burdened and slow VA. 

You can read more about the CBO’s suggestion here: https://www.cbo.gov/budget-options/2013/44756

Can the VA Police Itself?

Unfortunately, concerns about the VA being able to investigate and fix internal problems are justified as the Washington Examiner reports today that the VA’s Office of Inspector General (OIG) suppressed information.  http://www.washingtonexaminer.com/watchdog-report-on-veterans-affairs-kept-secret-for-years/article/2555128 In 2008, the Examiner reports that the VAOIG investigated and substantiated the falsification of wait times in Phoenix’s VA Medical Center.  Then the VA marked the report “restricted” ensuring it was not deceminated to the public and the Phoenix VA hospital’s problems continued to increase (http://www.nbcnews.com/storyline/va-hospital-scandal).  Rep. Jeff Miller (R-FL), the chairman of the House Veterans Committee, chastised the VAOIG for finding only one case of deliberate manipulation of wait times out of 21 investigations of the problem over the past 10 years. 

Sadly, this newest revelation will lead to even more mistrust of the agency tasked with taking care of “those who have borne the battle.”  If the VAOIG cannot be trusted, to whom can the veteran turn?

VA Pension Rule are Changing

The VA today released proposed changes to the rules affecting pension benefits for veterans.  They are in the notice and comment period now and that window will be open for sixty days. 

https://www.federalregister.gov/articles/2015/01/23/2015-00297/net-worth-asset-transfers-and-income-exclusions-for-needs-based-benefits#h-17

Some interesting highlights from the proposed rules:

1)     The VA is recommending that the transfer of assets done by a veteran (or beneficiary) have a three year lookback period, similar to Medicaid’s five year rule.  To qualify for pension benefits a veteran must have an extremely low income and a low net worth in assets.  Veterans could transfer away their assets to irrevocable trusts and then immediately turn around and apply for the pension benefit.  If the vet met the income requirements, they would be entitled to the pension benefit.  Unlike the Medicaid program, there was no mechanism by which the VA could “lookback” and see if a veteran had transferred their assets away to qualify for the benefit and then penalize the veteran for that transfer.  With these proposed rules, the VA may now look at all transfers of assets for the past three years.

2)     There will be a penalty period imposed on veterans who violate this new transfer rule.  This change “would establish a presumption, rebuttable by clear and convincing evidence, that transferring an asset during the look-back period was for the purpose of reducing net worth to establish entitlement to pension. As a result, the asset would be considered a covered asset.”  Veterans who transfer a covered asset would be subject to this penalty, which would be a maximum of ten years before the veteran could be entitled to the benefit.

3)     The VA is suggesting “stablishing a bright-line net worth limit and re-defining net worth as the sum of assets and annual income.” In the current regulations, there is no magic number for the maximum “net worth” of assets that is the cutoff for veterans being able to qualify for pension benefits. The net worth limit proposed would be equal to the “standard maximum community spouse resource allowance (CSRA) prescribed by Congress for Medicaid.”  This amount in 2014 was $117,240.

4)     There are also provisions that would define “activities of daily living” and “ deductible medical expenses,” which currently have no clear definition in the VA’s regs and M21-1MR.