Legal Meets Practical

Senators are circulating an open letter asking President Obama to help end the Department of Veterans Affairs (VA) claims backlog. This action is staunchly supported by veteran advocate groups, including the Iraq and Afghanistan Veterans of America. The hope is President Obama will issue an executive order similar to the one issued in August of 2012, which directed federal officials to take concrete, specific steps in combatting veteran suicide.

So if this letter works, what kind of executive order can we expect from President Obama? With a disability backlog of over 900,000 claims and wait times for initial decisions exceeding a year, veterans need an executive order with teeth. It needs to lay out an actual plan for how to end the backlog, not just reiterate the same promises the VA has been making for years.

As a veterans lawyer, I commonly encounter the same issues. Not just complaints about the wait times, but complaints about how the claims process works in general. The following is a non-exhaustive list of suggestions for how the VA can stop saying it will improve the backlog, but actually do so:

• Implement a training program for claims adjustors at Regional Offices. A standardized claim adjudication training program should be implemented in all of the Regional Offices, developed based on common mistakes.
• Compartmentalize claims. Claims adjustors should always be assigned a certain type of claim. For example, one claims adjustor might always adjudicate PTSD claims, while another claims adjustor focuses on aggravation of leg injuries. By specializing, claims adjustors will be better equipped to deal with the difficult and nuanced issues claims present.
• Assign accountability for mishandled claims. Sometimes veterans waits nine months for a decision, and the decision is replete with errors. And what can the veteran do? His decision is file-stamped by the director of the Regional Office, not the adjustor who decided the claim. The veteran can only file a Notice of Disagreement, send it off to the Regional Office, and wait some more. This isn’t fair to the veteran, and it isn’t good for the backlog because the veteran’s still in the system. To prevent this, Regional Offices should spot-check individual decisions rendered by claims adjudicators by providing random quality checks.
• Improve communication. Veterans are often confused by the boilerplate information provided to them, and calling the VA’s 1-800 number generally results in a long wait time and frustration. As a result, if a veteran has a question relating to what he should do to pursue his claim, the question is often not answered clearly. The veteran responds by either doing nothing or submitting information that might not be what the VA needs. The former route hurts just the veteran, but the latter route hurts both the veteran and the VA – the veteran isn’t facilitating his claim, and the VA has more paperwork. The VA must develop better channels of communication – a help line where individuals can explain the different steps of the process to the veteran and more online information. Improving communication will, however, be the biggest challenge, due to the sheer number of veterans.
• Enhance veteran resources. There are many wonderful resources and associations available to veterans, but these are not enough. Pro bono associations that handle claims are spread thin. The VA must expand resources available to veterans so veterans do not feel that they are alone in this process. VA disability compensation is an entitlement, and it should be treated as such.

In the end, there are many aspects of the disability claims process the VA can’t help. It can’t help the enormous backlog, the number of military members leaving active duty, and errors that may occur by veterans seeking disability compensation. However, there is much to be done to improve the system, and an executive order with teeth can take a bite out of the backlog.

In an effort to increase the success rates of businesses seeking verification in its VetBiz program, the Center for Veterans Enterprises (CVE) has revamped its website. For the first time, veteran business owners have access to information including: current verification and request for reconsideration (R4R) success rates and wait times; the top ten reasons for verification denials; and nearly a dozen new Verification Assistance Briefs. The idea here is clear: the CVE wants to give veterans the tools to “get it right” the first time.

So what do these tools entail?

VetBiz Statistics. According to the “Average Verification Processing Time” webpage of the VetBiz website, the current success rate for initial verifications is 60%, and the average processing time is 54 days. In contrast, 51% of all R4Rs are granted, with an average processing time of 130 days. This webpage, which is updated periodically when new data is available, may be accessed here.

Reasons for Denial. Below the table of processing times and success rates on the “Average Verification Processing Time,” the CVE published a pie chart. This lists the most common reasons for denial of a VetBiz application, most of which are due to issues with a company’s corporate documents. A whopping 66% of applications are denied because of issues with quorum (voting) and transfer restriction provisions. This is interesting in light of the recent Miles decision rendered by the U.S. Court of Federal Claims – according to both Miles, and the CVE’s Verification Assistance Brief on the subject, a right of first refusal provision is permissible under VA regulations. This means that the VA regulations are less strict than those of the Small Business Administration’s Service Disabled Veteran Owned Small Business Program, which have been interpreted to not permit a right of first refusal provision.

Verification Assistance Briefs. Also accessible are the CVE’s Verification Assistance Briefs, which were drafted by CVE to address and clarify the requirements that most often lead to denial. Of the fifteen Verification Assistance Briefs now posted, some of these topics include: the veteran’s entitlement to receive 51% of the annual distribution; the requirement that ownership be direct; how to show control of a limited liability company; the definition of a “small” business; and the meaning of “full-time control.” These verification assistance briefs may be accessed here.

Will these tools work? Only time will tell. Stay tuned to see. In the interim, if you’re interested in learning more about the verification process, please visit my VetBiz verification FAQs webpage.

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