Legal Meets Practical

Everyone knows about the extreme backlog faced by the Department of Veterans Affairs (VA) Regional Offices. As I blogged recently, VA statistics show that as of July 2012, nearly 900,000 cases are pending before the VA. While this number is staggering, the backlog could get even worse given the number of troops projected to leave active duty by 2017.

According to the House Committee on Veterans Affairs, as many as one million troops will leave the military by 2017. Currently, with the number of cuts of active-duty troops, over 100,000 veterans are created each year. When these troops withdraw from active service, these veterans seek their entitlements: to medical care, to education under the GI Bill, and, of course, disability compensation for those who became disabled as a result of an in-service injury.

The effect of this is an even greater strain on a system that does not have the design to handle so many disability compensation claims. The VA must create a more efficient system for processing. After all, these are “entitlements” – veterans have a legal right to compensation based on their service to our country. Sometimes claims take so long to process that in the interim, veterans find themselves with foreclosed homes, filing for bankruptcy, or simply (and most commonly) struggling valiantly to make ends meet.

The VA recently announced a new plan to divide claims into “lanes” depending on the level of complication of the claim and veteran need. The VA did not describe any other steps to be taken once these claims are added to the designated lane. Nor did it state how including a claim in the incorrect lane would be corrected; how the claims will be processed any differently after being placed in a lane; or the type of training VA claims adjustors will receive in processing claims in this manner.

I suggest that while the idea of categorizing claims is a good one, the categorization should be different. Claims should be categorized based on the type of disability claimed, the type of claim (new, reopened, or appeal), or other relevant factors. Claims adjustors should be assigned to the category of claims for which they have received specific training. For example, claims adjustors who assess claims for post-traumatic stress disorder (PTSD) should receive special training to assess those claims. This would greatly reduce the number of pending claims, because one of the biggest reasons claims stay pending for years is due to VA error.

As always, however, we must acknowledge the sad truth that this is not a system that can support our troops (despite the popularity of that slogan). According to the National Veterans Center for Statistics and Analysis, as of September 2010 there are 22.7 million veterans living in our nation. If every single veteran applied for the disability compensation for which they were entitled, and received it, our nation would take on an enormous burden. But I must ask – by living in a free country, even in light of the still-poor economy, didn’t we all agree to bear this burden?

Everyone loves our nation’s veterans and what they symbolize: freedom, courage, and honor. So why have several communities recently opposed the building of veteran homeless shelters in their proximity?

In 2010 the Department of Veterans Affairs (VA) released a five-year plan to eliminate veteran homelessness. Unfortunately, while every single American citizen would profess their interest in ending veteran homelessness, this doesn’t mean that they’ll support the building of a shelter in their neighborhood. As succinctly put by John Driscoll, president and CEO of the National Coalition for Homeless Veterans, the goal of constructing shelters, support centers, and other homeless veteran resources is a ” ‘NIMBY’ problem – a colorful acronym standing for ” ‘not in my backyard,’ the term politicians use for worthwhile projects they’d prefer to go somewhere else.”

Local communities are currently voicing their NIMBY opinion – sure, they’d like to end veteran homelessness, but they’d prefer the problem be taken care of elsewhere. For example, an Auburn, New York neighborhood initially blocked a proposal to convert an 81-year-old mansion into a homeless shelter. And in Gainesville, Georgia, opponents hotly opposed the conversion of a hotel into a veterans homeless shelter.

San Francisco, home to a particularly large number of veterans due to its Navy base for the Pacific Fleet and the Marine Corp Recruit Depot, now experiences similar backlash. The VA has already sunk $30 million into converting a building in San Francisco’s Mission Hills-Old Town section into a 40-bed shelter and treatment center for post-9/11 vets suffering from PTSD (PTSD) and traumatic brain injury (TBI). In response, parents of the children attending Old Town Academy, located near the shelter-in-progress, have threatened to pull their children out of school if the shelter is granted a permit.

These communities aren’t protesting veteran shelters to be heartless. They’re protesting because they worry about how the presence of a homeless shelter might increase the local crime rate, how it might negatively affect local business, and how it might impact their sense of safety and security. Many of the veterans may be being treated for mental health or drug problems, and a community has the right to be cautious.

At the same time, these communities need to acknowledge that this is the cost of being free. Many veterans are homeless because of their experiences in fighting for us abroad. They won’t stand a chance at rising above their situations if they aren’t provided food and shelter, therapy, mental health services, and job counseling. And it has to happen somewhere.

A middle ground must be found between the important interests of combatting veteran homelessness and protecting community safety. Measures should be taken to make these communities feel comfortable about the construction of veteran homeless shelters. The VA needs to educate them on the need for such services for our veterans, as well as causes of their problems such as PTSD and TBI. And the shelters will need to enforce rules restricting loitering, panhandling, and other activities. Local police should be cognizant of the areas around shelters. This would respect communities’ rights while still fulfilling veterans’ needs.

Although the VA has a better chance of capturing a unicorn than eliminating veteran homelessness, concerted efforts could put a dent in the problem. For further reading on what the VA’s five-year plan entails, visit: http://www.oregon.gov/ODVA/TASKFORCE/reintegration/FiveYearPlan-PPT.pdf?ga=t.

Any veteran who has applied for disability compensation through the Department of Veterans Affairs (VA) can tell you that the experience isn’t pleasant.  The boilerplate correspondence sent by the VA is hard to decipher, it can take nine months for a Regional Office (RO) to issue an initial decision, and valid claims are often denied the first time around. I am currently working on a claim that has been pending since 2001, in part because the VA waited five years to provide the veteran with the medical examination necessary to resolve his claim and then discounted the opinion when it was favorable to the veteran.

In response to heavy criticism, the VA has announced a plan to improve processing of disability compensation claims. Despite the plan’s ambition, the question is whether anything can repair a truly broken and overburdened system. As of July 2012, nearly 900,000 cases are pending before the VA. Of these, 558,000 are “backlogged,” meaning that they have been on file for more than 125 days without an initial decision. These numbers don’t even truly reflect the number of veterans who have been waiting to receive their disability compensation, as the “backlogged” cases do not include cases where a notice of disagreement (NOD) has been filed after an initial denial and the veteran is waiting for the next step.

With the number of cases pending both before the ROs and the BVA, what improvement can we expect from the VA’s plan? The following captures the main elements of the plan, along with my assessment of each element’s practical effect:

• Adopt a new electronic claims processing system VA wide. In theory, this could make the process much easier for veterans and claims adjusters alike, as there is a reason why postal mail is referred to as “snail mail.” However, for this to work, the electronic system needs to be user friendly, and it is questionable whether the VA is capable of designing such a system. Also, one must consider that many of our veterans coming back from Iraq and Afghanistan suffer from conditions such as post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI), and they have difficulty concentrating on computer screens. Also, older veterans may be unaccustomed to using such a system and will have to rely on family members.

• Establish an “express” lane for uncomplicated claims with one or two health conditions, and for “fully-developed” claims claims that include all evidence and supporting documentation. The issue here is how the VA will determine that claims fit into one of these two categories. This not only creates another step in the process, but it essentially provides that claims will not be assessed on a “first come, first served” basis.

• Establish a “special operations” lane to handle claims requiring extra attention because the wounds or illness are particularly serious, or the veteran is homeless or suffering a financial hardship. In my experience, it is extremely rare for the VA to expedite a claim. My question here is what standards the VA will develop to determine whether a claim falls into this category. It will surely be very fact-specific.

• Establish a “core” lane for veterans seeking compensation for more than two medical conditions and clearly needing more evidence-gathering to process. Roughly 60% of claims fall into this category. If the claims adjustors assigned to this lane are able to clearly communicate to veteran claimants about additional steps or evidence needed, this could potentially save time.

What matters here is whether this plan will have practical effect. There must be more to this – the claims adjustors need to be trained appropriately depending on the lane to which they are assigned. The single act of dividing claims into categories has no practical value. And if an electronic system is developed, it needs to be user friendly. An electronic system is not be helpful if most veterans cannot access or understand it.

From my experience, the step most desperately needed is training of VA officials involved in the claims process – both in properly assessing claims and in communicating clearly with veteran claimants. Also, the different VA departments and offices need to better communicate with one another. I have had multiple experiences where two different departments within the VA gave conflicting information.

As a practicing veterans law attorney, I truly hope that the VA disability compensation system improves. In modern context, the system is pushed to the breaking point. Devising a plan for better handling the volume of claims, as the VA has done, is the first step towards that end. And after the first step will come another.

On July 27, 2012, the Department of Veterans Affairs (VA) issued an interim final rule reducing the burden of reverification under its VetBiz Vendor Information Pages (VIP) Verification Program (the Program). This rule provides that service-disabled veteran-owned small businesses (SDVOSBs) and veteran-owned small businesses (VOSBs) that have already verified their veteran-owned and veteran-controlled status must re-verify once every two years, compared with the prior annual requirement.

VA officials have observed from administering the Program since 2010 that an annual examination is not necessary to adequately maintain the integrity of the program. The VA conducts a thorough examination of personal and company documentation to verify ownership and control by a veteran, including reviewing the corporate documents, federal personal and business tax returns, personal history statements, and occasionally administering an on-site investigation or interview.

The VA also notes that implementing a longer eligibility period is consistent with other Federal set-aside programs – for example, Historically Underutilized Business Zone (HUBZone) concerns re-certify every three years; and a program term of nine years applies to the Small Business Administration’s (SBA’s) 8(a) Business Development Program.

The effective date of the rule is July 27, 2012. Comments must be received by the VA on or before August 27, 2012. For a full copy of the rule, visit its entry in the Federal Register at: http://www.gpo.gov/fdsys/pkg/FR-2012-06-27/html/2012-15801.htm.