Legal Meets Practical

Some people think that once a corporation or limited liability company (LLC) is formed, the individuals who own or manage these entities are completely protected from personal liability. This isn’t entirely true. Certain business actions can pop the bubble protecting these individuals, leaving them exposed in their personal capacity. This is called “piercing the corporate veil,” and you do not want that to happen to your business.

In general, a corporation or LLC is recognized as having a separate existence from its individual owners and officers. Consequently, the assets and liabilities are owned by the corporation or LLC itself and not by the individual owners. This means that a creditor usually can’t go after an individual shareholder or member/manager to satisfy a judgment against the entity.

In rare circumstances, a court will make an exception and issue an order to pierce the corporate veil. In Virginia, for example, the Supreme Court has held that such an order is an “extraordinary” remedy. It will be done only if the individual owner has “controlled or used the corporation to evade a personal obligation, to perpetuate fraud or a crime, to commit an injustice, or to gain an unfair advantage.” O’Hazza v. Executive Credit Corp, 246 VA 111, 115 (1993).

There is no one circumstance that will lead a court to pierce the corporate veil. Several factors are considered when determining if a corporation functions as an alter ego for its owners or was created to advance an individual’s private interest or commit fraud. These factors include:

• A Lack of Corporate Formalities – If a company/corporation fails to file annual reports with the state, pay annual dues, maintain minutes of meetings as required in its By-laws or Operating Agreement, or keep adequate corporate or financial records, this constitutes a failure to adhere to corporate formalities.
• Commingling of Assets – A court may find that personal and corporate assets were commingled if the company/corporation fails to keep a separate set of books and financial accounts, or if the owners of the company/corporation used corporate money to pay personal debts.
• Inadequate Capitalization/Corporate Assets – If a company/corporation is undercapitalized at the time of a transaction and when the creditor attempts to collect on the judgment, the court may order the corporate veil to be pierced. There is no threshold level that constitutes undercapitalization, but the courts will look at the debt-to-equity ratio and cash flow requirements.
• Insufficient Oversight by Officers and Directors – If the officers and directors of a company/corporation do not actually perform their duties as required by the Operating Agreement or By-laws, a court might find insufficient oversight. Also, if a solo owner uses the company/corporation to advance his own personal interests, a court might hold that the entity acted only as his “alter ego.”
• Fraud – A court may pierce the corporate veil if it finds that the company/corporation was formed to perpetuate a fraud, such as by moving assets from one entity to another.

While there is no exhaustive list for how to protect the limited liability of your company or corporation, the following is a list of basic “best” practices to maintain:

• Adhere to Corporate Formalities – Make sure that you pay your annual dues and adhere to the rules set forth in your By-laws or Operating Agreement. In the event you do not have these documents, familiarize yourself with rules set forth in the state corporations code, which will be applied to your company by default. Because these rules are applied to your company or corporation by default, it will likely be easier to use your own By-laws or Operating Agreement. Also, doing so demonstrates to a court that you respect the corporate structure.
• Keep Assets Separate – Set up a business bank account and make sure that personal debts are paid with personal funds and corporate debts are paid with corporate funds. Do not remove corporate funds to pay personal debts without signing loan documents or documenting the expense and the immediate reimbursement.
• Sign as Your Business – The limited liability of the company/corporation applies if contracts and documents are signed on behalf of the company/corporation. Make sure that you sign in your corporate capacity with the company/corporation and not as an individual.
• Do Not Mix Credit Cards – If some business expenses must be paid with a credit card, make sure that you have a dedicated card for business expenses.
• Maintain Adequate Corporate Records – Keep all of your corporate documents in one safe, secure place.
• Maintain Owner Accountability – Make sure that the owners and officers of your company/corporation are performing the duties set forth for them in the bylaws or operating agreement.

This is your business and your livelihood, so make sure you are cognizant of the actions necessary to protect yourself (and your assets). For more information relating to protecting the limited liability afforded to companies and corporations, contact Sarah Schauerte of Legal Meets Practical, LLC at [email protected].

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In a final rule effective October 5, 2012, the Department of Veterans Affairs (VA) announced that it will provide service dogs to veterans with hearing, vision, or mobility-related disabilities, but not to veterans suffering from post-traumatic stress disorder (PTSD) and other mental health disorders.

This rule comes at the conclusion of a long, detailed study by the VA which analyzed the value of service dogs to veterans suffering from certain types of disabilities. Unfortunately for veterans suffering from PTSD, the VA nixed the idea of providing them service dogs due to to the unavailability of medical evidence supporting this need. Little clinical research addresses mental health service dogs, and the VA could not determine that these dogs provided a “medical benefit” to these veterans.

According to the VA, the only evidence in support of providing service dogs to veterans suffering from mental disorders is anecdotal accounts of subjective benefits. Such anecdotes show a decreased dependence on medications; an increased sense of safety or decreased sense of hyper-vigilance; an increased sense of calm; and the use of the dog as a physical buffer to keep others at a comfortable distance. The VA concluded that these “subjective accounts” could not be used as a basis for administering VA benefits. Such a tight-fisted approach is hardly surprising given the overburdened and underfunded state of the VA system.

At least the final rule provides for those veterans suffering from physical ailments, which is more than can be said for years past. Surprisingly, until now, the VA had no official program or mechanism for providing service dogs to veterans who needed them. With the issuance of this new rule, benefits to veterans include assistance with veterinary care; travel benefits associated with obtaining and training a dog; and the provision, maintenance, and replacement of hardware required for the dog to perform the tasks necessary to assist such veterans. The new regulations governing these provisions are set forth at 38 CFR Part 17.

In order to be eligible to receive benefits for having a service dog, a veteran must receive a certificate under 38 CFR 17.148. The eligibility requirements under 38 CFR 17.148 are as follows. First, the veteran must be diagnosed as having a visual, hearing, or substantial mobility impairment; and the VA clinical team that is treating the veteran for this impairment must determine based on medical judgment that it is optimal for the veteran to manage the impairment and live independently through the assistance of a trained service dog. Second, in order for the service dog to be recognized under this program, the dog and the veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the Internal Guide Dog Federation, or both.

While this is a step forward, the rule doesn’t note one important point: the VA isn’t actually providing the service dog to the veteran in need. Rather, the rule merely provides that in the event that the veteran obtains the service dog (which requires thousands of dollars and an approval process), if the veteran meets certain stringent conditions the VA will pay for various elements of maintaining and keeping the service dog.

One must wonder how many veterans will in fact meet these criteria. In fact, the VA itself in the final rule states that it estimates that only one hundred veterans will be eligible for such veterans. One hundred veterans. Considering that the VA itself estimates that as of June 2010, 3.16 million veterans are receiving disability compensation benefits, the provision of service dogs to only one hundred of these individuals is almost laughable.

But, of course, it isn’t laughable. These veterans’ needs are real, and this situation is serious.

For the full text of the final rule, which was issued on September 5, 2012, visit http://cryptome.org/2012/09/va090512.htm.

Despite the fun and excitement offered by metropolitan cities, if you’re waiting on your VA disability compensation claim you might prefer Lincoln over Los Angeles.

A recent analysis conducted by the Center for Investigative Reporting (CIR) fully details the wait times on VA disability compensation claims by geographic location. The wait time for an initial decision at the slowest Regional Office (RO) can exceed a year (Waco, Texas – 403 days), while the wait time at the fastest RO can take just a few months (Lincoln, Nebraska – 116 days). In a nutshell,the analysis shows that veterans in sparsely populated states encounter relatively quick resolution of their compensation claims while veterans in cities wait for what seems like forever.

The CIR analysis also identifies the most backlogged Regional Offices (RO). These are as follows, in descending order: Waco, Texas (1); New York, New York (2); Indianapolis, Indiana (3); Phoenix, Arizona (4); Los Angeles, California (5); Chicago, Illinois (6); Reno, Nevada (7); Roanoke, Virginia (8); Oakland, California (9); and Baltimore, Maryland (10). Interestingly, the notoriously slow St. Petersburg, Florida RO is absent from the list.

This geographic inequity of VA wait times is fully detailed in an interactive map on the CIR website, which displays the 58 VA Regional Offices (ROs) and the number of backlogged claims by week. The map updates every Monday based on any additional information obtained in the prior week.

If you are a veteran interested in the wait times applicable to a particular Regional Office, you can click on a city listed on the interactive map. It will show you the number of pending claims, average wait time for an initial decision, average wait time on appeal, and the number of veterans waiting 125 days or more.

For example, the Roanoke RO, which is the eighth-slowest RO, currently has 27,790 veterans awaiting decisions on their disability compensation claims. On average, veterans with claims pending at this RO wait 332 days for a decision on an initial claim. In comparison, the RO located in Fort Harrison, Montana has only 1,870 veterans awaiting decisions. There, the average wait time for decisions on an initial claim is 125 days.

There’s no doubt that this information is interesting to veterans. For those veterans who are waiting on their claims, it’s nice to at least know what kind of wait time to expect.

But at the same time, there’s nothing these veterans can do with this information to shorten their wait times. A claim is assigned to an RO based on the physical location of a veteran. It is not as though a veteran located in California (where the average wait time at all three California ROs exceeds nine months) can elect to have his claim processed elsewhere. Instead, he must wait for the assigned RO to reach his claim in the queue, and in the meantime face mounting bills that could be alleviated by a disability compensation award. Not even a snazzy interactive map can help with that.

CIR is the nation’s oldest non-profit investigative reporting organization. Its findings were gleaned from VA online resources and Freedom of Information Act (FOIA) requests made by those who contributed to CIR’s analysis. To access the CIR’s analysis and the interactive map, visit http://cironline.org/reports/map-where-veterans-backlog-worst-3792.

Early this month, the U.S. Government Accountability Office (GAO) issued a report that told us something we already knew: that the service-disabled veteran-owned small business program (SDVOSB) remains vulnerable to fraud and abuse. In its 59-page report, GAO concluded that this vulnerability is the result of a lack of inventory controls and the listing of potentially ineligible firms in the VetBiz Vendor Information Pages (VIP) Program (the VetBiz Program). (This recent GAO report can be accessed at:  http://www.gao.gov/assets/600/593238.pdf).

As many veteran business owners can attest, certification through the VetBiz Program is a bit like hazing. On LinkedIn discussions, I have read many laments about the intrusive nature of certification and complaints about the Center for Veterans Enterprises (CVE), the entity charged with implementing and administering the VetBiz Program. At one point, the VetBiz website was down for a significant period of time and the extensions granted for on-line re-verification insufficient.

Despite the inconveniences caused to veteran business owners, it appears that the VetBiz Program, which is relatively new, is not meeting the expectations of the Government as it relates to preventing fraud and abuse. As the GAO report found, the Department of Veterans Affairs (VA) has made inconsistent statements about its progress in verifying firms listed in VetBiz by using the more stringent process the VA implemented in response to the Veterans Small Business Verification Act (2010 Act). For example, in one communication, the VA stated that as of February 2011, all new verifications would apply the requirements of the 2010 Act. However, as of April of this year, one year after this VA-set deadline, only forty percent of the firms listed in VetBiz had been verified under this process. Of the sixty percent remaining, 134 firms received a total of $90 million in new VA SDVOSB set-asides or sole-source contract obligations from November 30, 2011 to April 1, 2012.

It may very well be that these firms are eligible to participate in the SDVOSB program. After all, they have undergone a verification process, and they have self-certified their status by holding themselves out as such. At the same time, however, the VA has not applied the standards to these firms that were found necessary in order to ensure true eligibility to receive SDVOSB set-asides and sole source contracts. Because of this, ineligible firms may have slipped through the cracks. That risk exists relating to sixty percent of all firms listed in VetBiz.

At least the VA is taking steps to address this issue of poor controls and vulnerability to fraud and abuse. In October of 2011, the GAO issued a series of recommendations to the VA to enhance its fraud prevention efforts. The VA has established processes in response to six of  the thirteen recommendations. These include conducting unannounced site visits to high-risk firms and developing procedures for referring suspicious SDVOSB applications to the VA’s Office of the Inspector General (OIG).

Only time will tell what impact the VetBiz Program will have on combating the fraud and abuse that necessitated its establishment. With the exception of Alaska Native Corporations (ANCs), the SDVOSB small business program has received perhaps the most criticism as it relates to awarding contracts to ineligible firms. Especially with the growing number of veteran-owned businesses and the need to support those veterans returning to civilian life, it is crucial that this program is able to serve the purpose for which it is intended.

If you don’t build a strong foundation for it, your house will fall down. The same goes for your business. If you don’t invest in the necessary structure at the outset, you might end up watching it crumble.

For service-disabled veterans starting a small business, it is important to know the checklist of what is necessary to show service-disabled veteran-owned small business (SDVOSB) status. The veteran must always have 51% interest, he must always be the president or CEO (ie, hold the highest position), and he must always exercise managerial authority over his business. If these provisions are not clearly set forth in corporate documents, SDVOSBs leave themselves vulnerable to protests and the loss of their SDVOSB status.

Take Benetech, LLC, for example. There, a family-owned business won a set-aside for constructing a parking garage, and its SDVOSB status was challenged by a disappointed bidder. SBA VET-225 (2011). Benetech, LLC (“Benetech”) was a father and son team, and the father was the service-disabled veteran upon whom certification as an SDVOSB was based.

To participate in the Small Business Administration’s (SBA’s) SDVOSB program, an LLC must be “unconditionally owned” by the service-disabled veteran upon whom certification is based, meaning that the veteran must own 51% of the interest. (13 CFR 125.9). The father unconditionally owned 51% of the LLC, and the son owned 49%. No problems there.

An LLC must also be “unconditionally controlled” by the service-disabled veteran, which means that the veteran must control “the management and daily operations” of the business, and he must also hold the highest position in the company (13 CFR 125.10). This is where Benetech ran into trouble. The father was in fact the president of the Company. However, in the company’s operating agreement, no managing member was named. Also, Benetech had listed the son as chief executive officer (CEO) in its proposal for the awarded contract; and the company’s Articles of Organization gave him enumerated managerial powers and authority.

Based on all of the evidence, both the Small Business Administration (SBA) Acting Director of the Office of Government Contracting (AD/GC) and the SBA Office of Hearings and Appeals agreed with the protestor that Benetech did not meet the control requirements of the SBA’s SDVOSB program. The protest was sustained, and Benetech lost the contract.

In my perspective, the heart of Benetech’s problem was bad drafting. Benetech was ineligible for the SDVOSB program likely only in a paper sense – its corporate documents and other records were not up to snuff under SDVOSB program standards. While the purpose of the SDVOSB program, which is to provide contracting opportunities to service-disabled veteran-owned businesses, may not have been undermined by awarding the contract to Benetech, the decision to sustain the protect was technically correct.

In this example, if better corporate documents had been drafted for the company, and it had been adequately informed of how to demonstrate SDVOSB status, it likely would not have endured legal fees for two levels of administrative decisions and, in the end, lost its set-aside contract. This is a lesson learned for all SDVOSBS: make sure your corporate documents are airtight, or suffer the consequences later. It’s not enough to be an SDVOSB in practice. To play the game, you have to be one on paper, too.

For further reading, the Benetech case may be accessed here.

My father is one of the reasons I chose veterans law as a practice. Several years ago, I became his advocate in his VA disability compensation claim; and yesterday, a decision was rendered. It was granted. Because this particular client is my father, he has given me permission to candidly share his story. It sheds light on two basic elements of successful VA claims: to refuse to give up (within reason), and to know common VA errors.

My father is a veteran of the Vietnam era. He served in Bad Kissingen, Germany at the tail end of the war, and it was a wonder he was drafted. Even as a kid, my father had trouble with his hips and knees – to such an extent that he was exempt from high school physical education. When he was asked to undergo a medical examination prior to officially being drafted, he expected to be immediately dismissed. Instead, he received a cursory glance and was told to board the bus for basic training at Fort Leonardwood, Missouri. Basic training was so difficult for him that he received a waiver from its activities, but he was still somehow found fit to be shipped overseas to Germany. Once there, he assumed the duty of distributing the mail. Sure, that doesn’t sound particularly arduous, but carrying a 70-pound sack up and down steps and around the base isn’t good for someone with bad knees and hips.

As a young lawyer living and working in Washington, D.C. I learned about the VA disability compensation claims process. I’d heard Dad’s stories about serving in the Army, and I asked him whether he had considered applying for disability compensation. He relayed that he had completed an application immediately after his service in 1972 and was denied. “Well,” I told him, “You’re going to apply again, because I think you’re entitled.” I believed that he was entitled to service connection for an aggravation of injury – Dad’s knees and hips were made worse by what he was required to do in service.

Because I was ambitious, and because my father’s interests were at stake, I pulled out all the stops in his application. I put together a 23-tabbed binder with the new and material evidence required to reopen his claim. I hunted down old war buddies to take their statements, gathered new medical evidence, and wrote a legal argument. Basically anything that could be done, I did.

So what happened? Eight months later we received a denial. And here was the kicker – the VA treated Dad’s claim as an appeal, not as a reopening. An appeal is when the veteran challenges a VA decision based on the evidence that the VA had at the time of the decision. A reopening is when a veteran presents what is called “new and material” evidence to reopen a claim. I would say that in the materials we submitted, the terms “reopen” and “new and material” were mentioned forty times each (and “appeal” zero times), but somehow the claim was still treated improperly.

I filed a notice of disagreement, and again the VA came back with a denial. This time it took a little longer, and this time the VA stated that Dad’s conditions were “congenital,” meaning that he was born with them, when he clearly wasn’t. It also discounted without justification a medical opinion from a private physician who had opined that Dad’s conditions were “more likely than not” service-connected.

Eventually Dad was afforded a VA medical examination. This took place in May of 2012, and this decision was reached in August. Interestingly, I as the advocate have no idea what that doctor concluded, other than that he must have found service-connection given the decision. I do not know what the doctor concluded because I have not received a copy of the examination report – reports are not automatically sent to veterans or their advocates. But, after all this time, this is a victory, and I must admit that I am far less interested in that report than I would have been if the decision had been another denial.

Dad’s claim, from beginning to end, has taught me a lot about veterans law. More than anything, it has taught me not to give up. The process is confusing and cumbersome, and we could have given up during any of the many roadblocks we encountered. We refused to do so, and Dad now has his compensation. At the same, however, this lesson saddens me, because it illuminates how many veterans do in fact give up. It takes time, legal wherewithal, and resources to fight the VA. Also, many conclude that because the VA has denied them once, that must mean that they are in fact not entitled.

This experience has also taught me how important it is to know what constitutes a VA error. What if we hadn’t known that Dad’s claim should have been treated as a reopening instead of an appeal? Or that Dad’s conditions aren’t congenital? Or that he was entitled to a medical exam? Or what constitutes an “adequate” medical examination under VA standards? All of these issues came up during the pendency of Dad’s claim, and without knowing the answers, the claim could have failed.

At the end of the day, while I’m absolutely thrilled and proud that Dad’s claim was granted, I can’t help but think of the alternative. Most other veterans don’t have an advocate, or know the legal ropes to applying for VA compensation. If Dad had been one of those veterans, he would have either never filed or given up after the first denial. He wouldn’t have known that when it comes to the VA, a “no” is not the end of the road. For many it is just the beginning.

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.