Legal Meets Practical

This news would be shocking if it didn’t relate to the Department of Veterans’ Affairs (VA).

Last week a News21 investigation revealed that quotas set by the VA effectively encourage claims adjusters to finish the “easy” claims first and push claims requiring an ounce of mental sweat to the bottom of the pile.

These more complex claims are often set aside by workers so they can keep their jobs, meet performance standards or, in some cases, collect extra pay, said VA claims processors and union representatives in a Washington Post article released on August 25. The sad thing is this practice makes sense from a practical standpoint – if a claims processor’s bonus is based on the number of claims processed, it is in the claims processor’s best interest to focus on the claims that require less effort and a shorter period of time. Also, it’s simply easier.

The VA’s valuing of quantity over quality is well-documented. In fact, in 2010 the VA stopped giving its employees performance credit for “supplemental development,” which included tasks such as calling and sending follow-up letters to veterans and follow-up requests for military documents and medical records. As you may note, all of those tasks contribute to the expedient and accurate resolution of a claim.

In 2008, Congress ordered the VA to review its work-credit system, which is used to evaluate employee performance. A 75-page report produced by the Center for Naval Analysis in 2009 recommended the VA address perceptions that quantity receives more emphasis than quality, by changing the tasks that receive points to better reflect the actual work.

Unfortunately, the points still reward those claims processors who have the numbers, not those who tackle and resolve the more difficult claims. A claims processor in the Reno, Nevada Regional Office told News21 that the work-credit system “breeds cheating” and that he has seen employees who aren’t making enough points go into “survival mode” and process only easy claims. Shifting performance points to reward backlog-related work would be more effective, said the worker.

The consequences of these practices are all negative. It is a negative consequence that veterans are punished when their claims require additional effort (such as the scheduling of a medical examination). It is a negative consequence that claims processors are pressured to produce work of higher quantity than quality, as many of these workers genuinely care about the plights of these veterans but are constrained by the VA system and its processes. And it is a negative consequence that because of the imposition of quotas, many rating decisions contain errors. According to the Washington Post, the Board of Veterans’ Appeals (which processes appeals from Regional Office decisions) found that in 2012 almost three out of four appealed claims were wrong or based on incomplete information.

As a veterans advocate, I was ashamed to learn of the findings from News21 investigation. Our veterans deserve much, much better than this. Unfortunately, this story contains more of the same information that has been published for years. I know the VA is incredibly backlogged, and I know many individuals in the VA care about making the process better. But stories like these make me wonder if it could possibly be any worse.

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Thanks to its brand new Pre-Decision Process, the Center for Veterans Enterprise (CVE) will be able to claim a near-100% VetBiz verification rate.

I chose the word “claim” deliberately. The 100% verification rate isn’t real. It’s the equivalent of an attorney winning her first court case and boasting to prospective clients that she has won 100% of her court cases. (We attorneys can get in huge trouble for that, by the way). That isn’t necessarily what the CVE will do, but it is important it frames its new verification rates in a way that isn’t misleading.

Here’s how the VetBiz Pre-Decision Process works. When the CVE evaluates a VetBiz application and determines a business is not eligible for the VetBiz Program, it sends the business owner an email notification. This email notification informs the business owner of the evaluation “findings” which prohibit the applicant’s inclusion in the Vetbiz Vendor Information Pages (VIP). It provides two choices: accept a denial letter, or notify the CVE of the intent to withdraw the applicant company from the process within 48 hours. If the applicant chooses the latter option, the business owner can later go in his VetBiz portal and edit any documents found problematic in the findings and resubmit.

Unless the email goes to a spam box, or the veteran business owner is asleep at the wheel, the applicant will withdraw. This is because there is absolutely no incentive for choosing the option of a denial letter. Accordingly, what would otherwise be a denial will not be counted in the VetBiz statistics reporting the percentage of denied applications.

Interestingly enough, information about the Pre-Decision process is not yet included on the VetBiz website. (I am aware of the process due to my status as a VetBiz verification counselor and from speaking to veteran business owners who have recently run the VetBiz gauntlet). I’m curious to see what information the CVE will provide in the near future – namely, when the process was implemented and how withdrawals will be counted in verification rates.

According to the Average Verification Processing Time table on the VetBiz website, the denial rate is a mere 7%. Just a month ago, it was listed at 30%. Given this drastic change, it appears that this reflects the implementation of the Pre-Decision process. The result is a dramatic skewing of verification rates. Any veteran business owner considering verification will look at the table and think the process is a cakewalk, which isn’t true.

I’m not trying to get down on the CVE here. All veteran business owners who would otherwise receive a denial letter benefit from the new Pre-Decision Process. If an applicant company corrects the issues with its application in an expedient manner and resubmits its application, verification will likely take a much shorter period of time than if the applicant filed a request for reconsideration. At the same time, however, when veteran business owners apply to VetBiz, they should know what they’re getting into it. A claimed 7% denial rate doesn’t do that.

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Desperate times call for desperate measures. With the backlog still looming near eight hundred thousand claims, the United States Department of Veterans Affairs (VA) recently announced a cash incentive program offered to veterans who submit “easier” claims.

Under this incentive program, veterans who file an original Fully Developed Claim (FDC) for service-connected disability compensation may be entitled to receive up to one year of retroactive disability benefits. However, in the news release posted by the VA, it is unclear when these benefits start.

As most veterans in the disability claims process know, the effective date of a claim is generally the first of the month after the month in which a claim is filed. Accordingly, if a veteran submits a claim through the FDC Program, is the effective date one year prior to the filing of the claim? Or is it one year prior to when the claim is granted? Veterans want to know the answer!

At any rate, veterans are well-served by filing their claims through the FDC Program. Doing so generally results in receiving a rating decision in approximately half the amount of time, as FDC Program claims are afforded priority.

Veterans are cautioned, however, to make sure they submit all evidence they want the VA to consider. One of the only benefits of the crippled-turtle-slow standards claim process is that during a pending claim, a veteran may end up submitting a piece of evidence that positively impacts the claim. A fast track process provides a smaller window of opportunity for this to happen.

For veterans who are interested in submitting an initial claim through the FDC Program, the VA’s FDC Program webpage may be accessed here. As a note, claims must meet all criteria of the FDC program, which requires veterans to provide all supporting documentation in their possession when submitting their claim. This includes any records from private medical providers, as well as contact information of any federal facilities that have provided treatment. If a claim does not meet the criteria of the FDC Program, it will be kicked back to the standard claims line…and therefore subject to a much longer wait time and ineligible for the one-year retroactive benefit. (Read my blog on the subject here).

For years, the VA has been blasted for its long delays and horrendous backlog. This is an answer. It may not be an answer for those veterans waiting on appeals, but at least this is something.

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First off, Eric Shinseki looks bigger in person.

Just kidding. (He is rather tall, however – or maybe that was the big screen on which his image was projected during the plenary luncheon).

From August 6th through the 8th, I attended the National Veterans Small Business Conference in St. Louis. As a first-time attendee, I wasn’t sure what to expect. Because I’m sure there are others out there considering whether to attend next year’s conference, I wanted to blog on my experience. Maybe this can help them decide whether the trip is worth the investment.

In my perspective, the conference was entirely worthwhile. I found the breakout training sessions very informative. Many sessions take place concurrently, so I had the choice of six or seven sessions. For veteran business owners, many networking opportunities were offered – both at the social functions that took place and at the networking roundtable with procurement officials. (A professional associate of mine, however, told me there were some issues with the organization of these – he registered for a roundtable and was the only one to show up).

Also, of course, we were fed – three lunches and two breakfasts. This was included with my $270 fee.

In general, the conference was well-run with few organizational mishaps. In terms of criticism, I will say it would have been nice to have received my schedule of training sessions earlier than the first day of the conference. Also, rather than having almost a dozen networking roundtables with procurement officials, veterans would have been well-served by having several sessions of speed networking. After all, many of them were there for purposes of finding teaming partners. Last, the organizers should have required attendees to RSVP for the two plenary luncheons, as I saw a lot of food go to waste.

I also wasn’t a big fan of the conference’s experimentation with VetGovPartner. There were two main parts to this. First, conference-goers were given a “poken,” which looked like a flash drive with a handprint on it. By holding the poken over the sign outside the door of a training session, the materials would later be made electronically available. Also, by touching one’s poken with another’s, contact information was electronically exchanged. Second, attendees were able to “build their agenda” by picking and choosing events from an online schedule. In the morning of each day, they received an email containing the details of their agenda.

The elements of VetGovPartner were relatively easy to operate; I just found them unnecessary. I have no trouble figuring out my own schedule without electronic assistance, thank you very much; and I prefer old-fashioned business cards. To each his own – I’m sure others thought the poken and the agenda builder were convenient.

Small hiccups aside, I very much look forward to next year’s conference. With the slashing of government spending (particularly on conferences), I hope to have the opportunity!

On August 1, House Small Business Committee Member Rep. Mike Coffman (R-CO) introduced the Improving Opportunities for Service Disabled Veteran-Owned Small Business Act of 2013. The main thrust of the bill is a show-stopper: it requires the Department of Veterans Affairs (VA) to relinquish control over the verification of SDVOSBs to the Small Business Administration (SBA).

As veterans know, the SBA and the VA operate separate procurement programs for SDVOSBs. These two programs are different in many respects, including the following:

• Verification/Certification Procedures – Under the SBA’s program, veteran business owners self-certify their eligibility to participate in SDVOSB set-asides issued by all procuring agencies other than the VA. Under the VA’s Veterans First Contracting Program, the Center for Veterans Enterprise (CVE) verifies applicants as eligible SDVOSBs or veteran-owned small businesses (VOSBs) in its VetBiz Vendor Information Pages (VIP). This requires veteran business owners to provide information and documentation to CVE which demonstrates the business meets the veteran ownership and control requirements. After these businesses are “verified,” they may compete for SDVOSB and VOSB set-asides under the Veterans First Contracting Program.

• Statutory Definitions – While the VA’s Veteran-Owned Small Business Verification Guidelines (set forth at 38 CFR Part 74) strive to align with the regulations governing the SBA’s SDVOSB program, differences still exist. For example, the transfer restriction provisions in the VA’s guidelines are less restrictive than those set forth in the regulations governing the SBA’s SDVOSB program. This means that while a business may be eligible for the VA’s Veterans First Program, it may not be eligible for the SBA’s SDVOSB Program. In fact, it took a long, drawn-out (and expensive) Court of Federal Claims case to decide this issue. (Read more about this case here).

• Appellate Procedures – Eligibility issues and protests relating to the SBA’s SDVOSB Program are heard by the SBA, while eligibility issues and protests relating to the Veterans First Program are heard by the VA.

Since the inception of the VA’s VetBiz VIP Verification Program, it has encountered harsh criticism due to its extremely high applicant rejection rate (currently 30%, which represents a vast improvement), long wait times, and technical glitches. Despite this, both the VA and the SBA have stated the intention that the VA’s verification program ultimately be applied government-wide. Further, the VA recently sought comments for proposed rulemaking to amend 38 CFR Part 74 and to improve the VetBiz VIP process generally. With these developments, along with the time and money invested in the development and improvement of the VA’s VetBiz VIP Verification Program, it would seem the chance of this bill becoming law is nonexistent.

So why introduce it? To make a point. To suggest that the SBA should take over verification from the VA is a statement that drastic change is necessary. Representative Coffman’s bill is already getting a lot of buzz, and the fact that people are reading it means they are reading the content that discusses what Coffman believes should be changed about the verification procedures generally.

Representative Coffman’s bill can be accessed here.

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While many federal employees are facing furloughs because of U.S. budget cutbacks, many Department of Veterans Affairs (VA) employees are facing the opposite – mandatory overtime.

The reason has been splashed all over the news lately. To address public outrage, the VA implemented an initiative designed to eliminate the oldest initial claims from its backlog. I discussed this initiative in a prior blog available here. The backlog was reaching an alarming number (almost one million!), and while waiting for their benefits, many veterans were vulnerable to foreclosures, bankruptcy, and severe medical issues – situations that could have been mitigated or avoided if they were provided with the benefits to which they were entitled.

In Spring, the VA mandated a minimum of 75 hours of overtime for Regional Office claims processors between May 15 and September 30. In late June the VA reported that 65,000 claims have been reduced from the backlog.

While the backlog initiative is wonderful in theory, I’m leery of this “quick fix” to the backlog. Veterans don’t want to wait years for their claims to be resolved, but they also don’t want their claims improperly adjudicated. With mandatory overtime and national pressure on VA claims processors, I have to think this high stress environment would foster mistakes.

Also, I worry about how this affects other claims. The backlog initiative applies only to initial claims – not claims that have been remanded or appealed. Those claimants have been waiting longer than veterans with pending initial claims, and due to the initiative’s allocation of resources towards the backlog…they will continue to wait. I was recently informed by an official at one of the ROs that for now, no appeals are being processed at that particular RO. Not that they’re being processed more slowly, or that they are lower priority – no appeals are being processed, period.

When I asked why this was so, the VA official told me something that stuck with me. She relayed that the focus is only on initial claims because veterans with pending appeals have “already been through the system.”

I understand her point, but what about veterans who are still in the system through no fault of their own?

Take, for example, one claim with which I’m familiar. In 2004, the Board of Veterans’ Appeals remanded the veteran’s claim, ordering the RO to provide an “adequate” medical examination. Five years later, this examination was provided. In a subsequent decision, the VA disregarded the opinion (which found the veteran’s disability was service-connected) and denied the claim. It has been over two years since the U.S. Court of Appeals for Veterans Claims ruled this was in error and remanded the claim to the RO, and no progress has been made in scheduling a new medical examination.

In this instance, the veteran did nothing wrong. Yet since his claim is characterized as an appeal, it is in limbo while the RO concentrates on the disability backlog. Has he really had his chance in the system? I don’t believe so.

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I’m going to do things a little differently with this post.

Every week, I write on something topical – a new rule that affects veteran-owned small businesses, a development in reducing the disability compensation claims backlog, an interesting bid contract.

After over a year of monitoring my site statistics, I have found that one blog in particular absolutely kills the others in terms of search term hits. This is my blog announcing the Department of Veterans Affairs (VA’s) recognition of disabilities presumed secondary to traumatic brain injury (TBI). This blog can be accessed here.

When people found this blog, they were searching for generic terms like “tbi rating” and “tbi va claim.” Since they appeared to be looking for general information on TBI claims, I don’t believe they found what they were looking for.

These searches got me thinking. How many veteran disability compensation claims are slowed down because veterans didn’t find the information they needed in order to adequately present their claims? Because there isn’t enough information out there? Because the available information isn’t clear, either because of the way it’s presented or because the compensation process is complicated? The VA claims process involves the application of nuanced rules, regulations, and diagnostic codes; and it is extremely difficult for veterans to know not only what applies to their claim, but how it applies.

I believe that if veterans had more, straightforward information about pursuing disability compensation claims, this would help not only them, but also the VA. When claims are done properly at the outset, they can be resolved faster (and more favorably), resulting in veterans receiving the money to which they are entitled and contributing to the VA’s reduction of its immense backlog.

Towards that end, I am pleased to announce the September 1, 2013 launch of my new website: http://www.endvabacklog.com. This website will consist entirely of resources for veterans pursuing disability compensation claims, including links, practical tips, VA diagnostic codes, sample lay witness statements, explanations of regulations, and a blog. There will be two separate resource portals for two of the most confusing types of claims – claims for post-traumatic stress disorder and claims for TBI. Please keep in mind that these resources are presented as general information only, and do not contain specific legal advice, as every claim is different.

For all of the veterans who are reading this, thank you for your service to our country. Please visit http://www.endvabacklog.com on or after September 1, 2013 in order to learn more about obtaining the benefits to which you are entitled.

When people think of service dogs for veterans, they think of German Shepherds, Golden Retrievers, Labradors, and pugs.

Wait a second. One of those doesn’t sound right.

In early July, Robert Ragels, a veteran of multiple tours in the Persian Gulf, was denied access into Texas state legislature chambers by state troopers when he tried to enter with his service pug, Piggy. He was eventually allowed to enter after a state senator’s aide helped, but the experience still left him frustrated.

“A person like me that looks normal and I bring in a dog, they think, ‘well that can’t be right,’ said Ragels. “When something like this happens it just drives me absolutely crazy because I just want to be the same, that’s all I want.”

It’s ironic where the incident took place: where a Texas bill had been signed to put the state’s laws regarding service animals more in line with the Americans With Disabilities ADA Act (ADA).

Ragels has had Piggy for two years and trained with her through Train a Dog, Save a Warrior, a non-profit that helps train service dogs for veterans with post-traumatic stress disorder (PTSD).

“I understand she’s not a big German shepherd carrying my stuff around because I can’t walk or whatever but regardless she is a service animal,” he said.

This incident is interesting because it illustrates that service dogs do not fit a cookie cutter definition, especially when it comes to veterans suffering from non-physical injuries. Dogs that are not “traditional” service dogs – a sprightly pug, perhaps? – can provide valuable therapy and companionship to veterans suffering from the effects of disabilities such as PTSD (although providing emotional support alone does not qualify a dog as a “service dog” under the ADA).

Under the ADA, Ragels shouldn’t have been required to jump through hoops to bring Piggy with him to the state legislature chambers. Under the ADA, if it is not obvious that a dog is a service animal, a public entity or a private business may ask only two questions: 1) Is the animal required because of a disability? and 2) What work or task has the animal been trained to perform? Thus, the state troopers should have asked Ragels these questions, and, when reasonably satisfied, permitted Ragels and his dog to walk through the doors.

Also, the state troopers could not have asked Ragels certain questions. Under the ADA, a public entity or private business may not ask about the nature or extent of an individual’s disability. It also may not require documentation, such as proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest.

While these requirements are etched into federal law, not all businesses and public places “in the moment” know what to do. As a veterans advocate, I hope business owners and officials take steps to learn the ADA’s requirements regarding service dogs. This way, they can spare veterans with service dogs embarrassment and frustration – and, in addition, prevent exposure to a potential lawsuit.

Everyone benefits by businesses taking the initiative to learn more about service dog requirements. These can be accessed here.

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When it comes to government contracting in the veteran-owned set-aside arena, there are different types of unsavory behavior. There are those who install a Rent-A-Vet, or set up pass-through corporations. There are others who lie about their own veteran status.

Then, there are those who receive millions of dollars in set-asides because “their foot hurts.”

During a June 26 hearing before the House Oversight and Government Reform Committee, Representative Tammy Duckworth (D-IL) eviscerated federal contractor, Braulio Castillo of D.C. – based Strong Castle. Tammy Duckworth is an Iraq War veteran who lost both of her legs and severely injured her arm while in service. Castillo incurred a minor foot injury while in military prep school. Both are “service-disabled.” (As a mind-boggling side note, Duckworth has a 20% disability rating for her mangled arm. Castillo has a 30% rating for his foot injury).

Duckworth chastised Castillo for exploiting his service-connected status in order to win millions of contract dollars. Duckworth read from a letter Castillo had written to the government for purposes of securing contracts, which included the verbiage: “these are crosses that I bear due to my service to this great country, and I would do it again to protect this great country.”

In a voice dripping with sarcasm, Duckworth said: “I’m so glad that you would be willing to play football at prep school again to protect this great country…shame on you, Mr. Castillo. Shame on you. You may not have broken any laws…but you have broken the trust of this great nation.”

When I first heard about this, I thought of my father. He was stationed in Bad Kissingen during the tail end of the Vietnam War; however, he does not call himself a Vietnam War veteran because he feels that doing so would dishonor those veterans actually stationed in Vietnam. There is a line, and the fact that Dad sees it doesn’t mean he’s noble – just decent.

And what happens when someone like Castillo ignores the line? As Duckworth pointed out, not only does this type of action “game” the system and divert millions of dollars from eligible veteran-owned companies, but it affects veteran benefits: “If this nation stops funding veteran’s health care and calls into question why veterans deserve their benefits, it is because cases like you have poisoned the public’s opinions on these programs.”

On the flip side of this, it’s true that Castillo hasn’t broken any laws. He went through the disability compensation claim process like every other veteran. Right now, thousands of veterans who never engaged in active combat receive disability compensation, and the fact they never picked up a gun doesn’t make them any less disabled or less entitled to their “disabled status.” My father is a “disabled” veteran and he never set foot in a combat zone. He would never, however, imply that the nature of his disabilities was different in order to obtain a set-aside contract.

As a point of interest, Duckworth engaged in this public roast because Castillo was already in hot water – the hearing addressed a committee report focusing on Castillo’s close friendship with a top Internal Revenue Service (IRS) purchasing official who may have “influenced the [contractor] selection process” in favor of Strong Castle to allow it to secure $500 million in IRS contracts. When the IRS official exercised his fifth amendment right against self-incrimination and was dismissed from the hearing, Castillo found himself in the harsh spotlight.

Access Duckworth’s blasting of Castillo at: http://breakingdefense.com/2013/06/27/rep-tammy-duckworth-berates-dubious-disabled-vet-but-theres-a-deeper-problem/.

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In order to participate in the Veterans First Contracting Program, a business must be verified through the Department of Veterans Affairs’ VetBiz Vendor Information Pages (“VIP”) Verification Program. This is popularly referred to as “VetBiz.”

As a veterans lawyer and veterans advocate, I hear a lot of veteran business owners complain about VetBiz. They vent on LinkedIn forums, complain amongst themselves, and see the application process as a confusing ordeal. And now, for the first time, they have an opportunity to effect change by commenting on the VA’s advanced notice of proposed rulemaking to the regulations governing VetBiz.

So why aren’t they speaking up?

In a June 18th VetForce meeting in Washington, D.C., a representative from the VA relayed that only seven sets of comments have been received by the VA thus far. Of the thousands and thousands who have run the VetBiz gauntlet? How is that possible?

Here’s one explanation: they may be waiting until close of the due date of July 12 to comment. As we all know, when a due date is imposed, people like to cut it close. Also, since veterans service organizations write on behalf of all members of the organization, it might take a while for them to compile the input received.

Here’s another explanation: they may not think their comments will matter. It takes a while for change to be effected in government; and just because a suggestion is made, that doesn’t mean it will be followed. So why not just continue to fire away on LinkedIn? I’ve seen those group discussions, and they’re very interactive. In contrast, commenting on a regulation may seem like talking to a wall, or like there’s little chance of it creating change.

The issue, however, is this: if veteran business owners don’t comment, there is no chance of effecting change. A voice isn’t heard if it stays silent.

Also, in this case, the VA wants to hear them. It understands that its verification process is still undergoing growing pains and that veteran business owners are frustrated. The VA wants to know what it can do to make its regulations clearer and the process less cumbersome.

If you’re considering commenting on the regulations, maybe this will motivate you: on June 27, I submitted comments on behalf of my company, and I found plenty to say based on my practical experience with the VetBiz process. For example, these are my suggested verification process improvements:

1. Include help buttons for each relevant document, addressing common issues that require Letters of Explanation. For example, if a veteran business owner clicks on the help button over “resume,” it could note that a Letter of Explanation is needed if the resume uploaded lists outside employment.
2. Substitute “N/A” for certain Letters of Explanation, as some are unnecessary and create additional work.
3. Create a process tracker where veteran business owners could access to determine where their application stands in the process.
4. Enable veteran business owners to remove old documents from their VetBiz portal, upon reapplication. Allowing these documents to remain is confusing, and, to a degree, unfair – these businesses are required to wait six months for a new shot at the application process.
5. Modify the “submit” button, as it is much too easy to accidentally submit an application before the veteran business owner is truly ready to do so. (It is the same color and size font as the “next” button on prior pages).

There are less than two weeks left. If you feel strongly about something related to VetBiz, make a comment! It’s simple – go to http://www.regulations.gov and search for the rule using the identification number VA-2013-VACO-0004-0001; RIN:  2900-AO63. You will access a page where you can enter or upload your comments. (All in all, it took me less than three minutes to fill in the required company information and upload mine).

Legal Meets Practical, LLC’s comments to the rule can be accessed here: VOSB_Reg_Comments_LP. Also, my earlier blog entry announcing and providing information about the proposed rulemaking is here.

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