Tuesday, June 19, 2018
In a new, well-crafted article, a recent law graduate, and former naval officer, outlines in brief the law and procedure of veterans’ disability benefits claims – and sets forth a critique of the same. See Scott W. Taylor, Improving Services for Those Who Served: Practical Recommendations for the Department of Veterans Affairs’ Disability Benefits Model, 68 Hastings Law Journal 1291 (August 2017).
He first explains the creation of the program in the early 1930s, its essentially charitable, non-adversarial structure, and the character of the benefits payable. A disability award must, of course, be based on a disability incurred because of service in the military. The VA disability model, meanwhile, has, instead of stressing functionality, “always inferred a veteran’s ability to work based solely on the severity of the veteran’s ‘medical conditions and symptoms.’” Benefits are, meanwhile, payable without reference to whether the claimant is working again. Veterans’ disability payments are made on a monthly, not lump-sum, basis, in a manner which the author correctly refers to as paternalistic.
The author then sets forth the administrative claim/dispute resolution structure, explaining that a veteran’s initial claim for a disability award is submitted to a regional office of the VA. In the event of a denial, an appeal is taken to the Board of Veterans’ Appeals (BVA). Further review is available in an Article I court called the United States Court of Appeals for Veterans Claims. Consistent with the law’s purpose (taking care of the serviceman and his family in the wake of service-related injury), the “reasonable doubt rule” prevails. In other words, if the proofs are in equipoise, the claim is resolved in the veteran’s favor. The author also notes that assistance is available in-house and from volunteers for claimants to pursue their claims, and more recently lawyers are allowed to represent veterans in their appeals.
The author believes that the VA’s disability assessment and disability benefits models are obsolete and should be reformed. To aid in the analysis, the author compares the U.S. approach to that of Canada, a system which has the same goals yet several system features that differ from those of our country.
The author advocates that, in contrast to the traditional model, the focus of disability assessment should be on the veteran’s residual functionality. This is an argument inspired by recommendations from the World Health Organization and, notably, is the same type of thinking that inspired the AMA to revise the AMA Guides and create the 6th Edition.
The author also asserts that blindly (my term) paying lifetime monthly disability awards, regardless of whether a veteran is employable, is simply unsatisfactory. He argues that, rather than regarding disability payments as an “entitlement,” finite periods of benefits – with an attendant focus on rehabilitation, and/or even the closure of cases with lump sums – should be the preferred approach. This latter advocacy is drawn from the Canadian example. Such advocacy mirrors that of the debates in the workers’ compensation community over whether delivery of benefit via periodic payments or lump sum is superior. While the latter form of payment creates the “risk of financial mismanagement,” the “finite award provides closure for less severely injured veterans, as well as the sense that their service-related condition does not necessarily impede their ability to earn an income. Simply put, the finite award enables non-permanently disabled veterans to move on with their lives and begin the process of rehabilitation.”