Attorney Blog

Why is the VA so slow to process claims?

Tue, 21 Feb 2012 08:00:00 EST

Why is VA so slow to process claims?
VA is a huge government bureaucracy. All bureaucracies, whether government or corporate, are slow, inefficient, subject to channeled thinking. They are inherently cautious and have many interconnected parts, and actions require multiple reviews and sign-offs. Political influences on, and scrutiny of, government bureaucracies increase the natural cautiousness.
Understaffed, undertrained, overworked, overwhelmed. VA handles hundreds of thousands of claims. Many have merit but not all do. Some people, seeing a federal fund of money, regard VA benefits as a possible source of easy money. With responsibility for the use of taxpayer money, VA must sort through all the claims to separate the bogus from the legitimate. The agency is challenged to find, train, and retain enough qualified employees to deal with this burden of work.
Conflicting incentives. Sometimes the very measures taken by VA to speed processing of claims result in losing ground. For example, when VA creates incentives for clearance of claims faster, the easiest way to deal with a claim quickly is to deny it, often without doing all the proper development. This results in appeals and redoing the claims, sometimes over and over.
Creeping bias. Most VA employees, however effective or ineffective, are sincerely trying to do their jobs properly. Dealing with such a vast number of claims, however, sometimes creates a sense of skepticism on the part of reviewers. This suspicion that most claims are without merit can result in denial because of a tendency to favor evidence adverse to the claim or insist upon corroboration of evidence that should not require it.
What can be done about it?
The short answer is that there is no cure-all; to a certain degree the system is what Congress has established, limited by realities of claim volumes and the labor market. But there are some things that can help avoid undue delay.
Support claims. If you are preparing to file a claim, collect or think about the necessary evidence to prove it. Claims for service connection require showing a current disability that is related to an event of injury or disease manifestation in service. Unless the disability is obvious, such as an amputation or scar, you will need medical records to demonstrate it. VA will request necessary records if you identify sources, but as the patient you can often save time by requesting them yourself. If your injury or illness in service is reflected in military records, that will suffice; if not, you can describe it in a statement but VA will usually want corroboration, so you should solicit statements from witnesses – fellow soldiers, family members, co-workers who are familiar with the events. Finally, unless you have documented symptoms that have continued since service, you will need to establish an evidentiary connection between the in-service event and your disability. This usually requires a medical opinion, which VA may or may not obtain on its own; again, time can be saved if you get an opinion yourself.
Simplify. Having multiple claims also causes delay, especially if they are not proceeding simultaneously. VA cannot rub its stomach and pat its head at the same time. Claims at different stages require attention by different personnel in VA, and the claims file can only be in one place at a time.
Heed notices. If your claim is denied, pay close attention to the reasons given in the Rating Decision or Statement of the Case and consider how to address them. You may need to obtain additional evidence on the elements discussed above.
Be insistent but polite. Bureaucrats are human beings (strange but true!). Like any human, a government employee responds better to courtesy and respect than to threats or anger. Dealing with VA is often infuriating, but losing your cool accomplishes nothing because, realistically, VA employees have little pressure on them to handle any particular claim promptly. But it is important to keep steady pressure on VA. Call or write VA about pending action at regular but reasonable intervals, about every 30-60 days. Writing to your congressional representative cannot force any particular decision by VA but it can sometimes help focus some attention on a file if it has been languishing without action for a long time. Do not resubmit evidence, as this simply bulks up the claims file and causes delay.
Last resort. There is one mechanism to compel attention and possibly action by VA if delay becomes extraordinary. It is possible to petition the Veterans Court for an extraordinary writ of mandamus, an order directing the agency to do something. It is called extraordinary because the court regards it as an extreme measure, to be done only in the most egregious cases. The court very seldom actually issues a writ; sometimes just filing the petition, however, prompts the agency to get something moving again.
We would be happy to answer questions about any of this information.

Pilot project helps veterans transition to farming

Thu, 16 Feb 2012 08:00:00 EST

A pilot program is taking root in the nation's Heartland, one that aims to help returning veterans become farmers and revitalize rural communities.
"We thought this might be a great opportunity, especially with these veterans coming back and finding out there are a lot of employment issues in cities and other large areas," said Nick Levendofsky, special projects coordinator of the Kansas Farmers Union.

Lag in disability pay overhaul irks vets groups, lawmakers

Wed, 15 Feb 2012 08:00:00 EST

From the print edition of Army Times:

Lag in disability pay overhaul irks vets groups, lawmakers

By Rick Maze

Washington - The slow pace and complex nature of an extensive review of veterans disability compensation is fueling growing concern among lawmakers and veterans groups.

Jeffrey Hall, assistant legislative director for Disabled American Veterans, warned Jan. 24 that the Veterans Affairs Department’s ongoing overhaul of its disability rating rules is “heading in a direc*tion that could harm veterans suf*fering with mental health disor*ders and potentially threaten the integrity of the entire veterans disability compensation system.”

Testifying before the House Vet*erans’ Affairs Committee’s disabili*ty assistance panel, Hall said VA is looking at a change in rating men*tal disorders under which benefits levels would be determined by a veteran’s ability to work in a post*military job — not on the tradition*al factors of potential lost wages and reduced quality of life.

“The less someone is able to work, the more he or she would be compensated,” Hall said of the proposal that has been briefed to VA’s advisory committee on dis*ability compensation.

According to a draft proposal, disability ratings based solely on mental disorders would be deter*mined by the frequency and sever*ity of disruption in work.

For example, someone unable to work two or more times a week might be rated 100 percent dis*abled, while someone unable to work one day a week might be rated 70 percent disabled.

The proposal would be a major overhaul of current ratings crite*ria, which take into account social impairment and the ability to carry out daily tasks in addition to income loss. Looking solely at the ability to work full time would exclude factors such as earnings potential — for example, a veteran with a law degree who, because of post-traumatic stress disorder, might take work as a night janitor so he has minimal contact with people.

The proposal is part of an ongoing effort, expected to continue through 2016, to revise and update the VA Schedule for Rating Disabilities, a move ordered by Congress in 2008.

Rep. Jon Runyan, R-N.J., chairman of the disability assistance panel, said VA’s rating system needs an update.

“Just as we would not issue World War II-era equipment and weapons to our current soldiers and Marines and expect them to be successful on the modern bat*tlefield, we should not be satisfied with a World War II-era system for evaluating and rating their dis*abilities as a result of their ser*vice,” he said.

Runyan added that he wished the current review would move a bit faster.

Thomas Murphy, director of VA’s compensation service, said the rat*ings review is taking longer than expected but said, “This … needs to be done right.” A Center for Naval Analyses study, prepared as part of a 2007 report by the Veterans Disability Benefits Commission, found that when looking at the value of dis*ability benefits relative to loss of income, veterans with mental dis*orders tended to be underpaid, while those with physical disor*ders were properly paid.

The report also found that veter*ans who became disabled at a young age generally were under*compensated, while older veterans were overcompensated.

Those findings are being applied to the VA ratings review.

Mental health issues affect many veterans of the wars in Iraq and Afghanistan, said Frank LoGalbo, national service director for the Wounded Warrior Project.

The nonprofit group’s survey of 5,800 veterans wounded since 2001 found that one-third had mental health issues that “made it difficult to obtain employment or hold jobs,” LoGalbo said.

“Almost two-thirds of those sur*veyed reported that emotional problems had substantially inter*fered with work or regular activi*ties during the previous four weeks,” he said.

VA budget seeks 10.5 percent boost in funding

Tue, 14 Feb 2012 08:00:00 EST

In an era of tightened federal budgets, the Veterans Affairs Department has won a 10.5 percent funding increase justified by the return of combat troops to the U.S. and the looming drawdown of the active-duty military.

VA Seeing Spike In Homeless Vets With Families

Thu, 09 Feb 2012 08:00:00 EST

Now, a growing number of veterans with spouses and young children, many returning from deployments in the Middle East, are changing the face of homeless veterans in Connecticut and across the country.

Acting Helps Soldier Cope with PTSD

Wed, 08 Feb 2012 08:00:00 EST

Like Mr. Pennington, many veterans injured in combat are finding that their invisible psychological and neurological wounds are proving more debilitating than their obvious physical ones.

Department of Veterans Affairs backlog in California

Mon, 06 Feb 2012 08:00:00 EST

The average new claim processing time appears to be 12 to 18 months while appeals may take several years. This backlog is frustrating and unacceptable to all concerned, especially to our veterans and their families.

While this article says that the VA is working hard to correct the problem, my opinion is that the VA will be unable to alleviate the backlog and that it will be with us for another generation.

Social Security Disability Claims Up

Fri, 03 Feb 2012 08:00:00 EST

Social Secutity disability claims are rising according to USA today becaue of the econmy. With Social Security Disability Insurance, the 1950s-era expansion of the program best known for paying retirement benefits, disbility claims are up. In 2007, 8.9 million people were on disability. Now that number is 10.7 million, a 20% jump in just five years.

Pending claims before the VA stand at 853,831

Wed, 01 Feb 2012 08:00:00 EST

The Department of Veterans Affairs is facing a growing backlog of disability claims, fueled by veterans returning from Iraq and Afghanistan and a policy change making it easier for Vietnam veterans to file Agent Orange-related claims.

Job Training Aims to Ease PTSD

Fri, 27 Jan 2012 08:00:00 EST

The transition to civilian life can be jarring. Add to it the mental barrage that comes from combat situations, and many veterans find themselves struggling mentally and emotionally.

Duty to Elicity Lay Evidence

Fri, 27 Jan 2012 08:00:00 EST

Veterans have in several cases contended that the Board erred when it found that VA satisfied its duty to assist in their claim for earlier effective date because VA failed to elicit medical and lay evidence from him and because the Board erroneously determined that a retrospective medical opinion was not warranted.

The Secretary has a general duty to make reasonable efforts to assist a claimant in obtaining evidence that is necessary to substantiate the claim for benefits. 38 U.S.C. § 5103A(a); Daves v. Nicholson, 21 Vet.App. 46, 50 (2007). This duty includes notifying claimants to submit lay evidence of their symptoms. Chotta v. Peake, 22 Vet.App. 80, 84 (2008) (citing 38 C.F.R. § 3.159(b)(1) (2011)). This duty may also include "obtaining a retrospective medical opinion" when the record does not include "competent medical or lay testimony that indicates that a higher disability rating may be appropriate."

The Court has held that the Board in certain circumstances has a duty to elicit lay evidence regarding the history of symptoms and a medical opinion of when the higher rating should begin.

New sleep apnea treatment

Mon, 23 Jan 2012 08:00:00 EST

United States military veterans now have the option to use Provent® Sleep Apnea Therapy, a small, non-invasive nasal device for the treatment of obstructive sleep apnea (OSA)

VA PTSD Regulation upheld.

Mon, 23 Jan 2012 08:00:00 EST

The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule, 38 C.F.R. § 3.304(f)(3), is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection for PTSD under either a VA examination or a private physician examination.
With a VA examination, if PTSD is diagnosed as consistent with fear of hostile enemy activity, then credible supporting evidence of the stressor is not required. However, if a non-VA doctor diagnosis PTSD and it is not comfirmed by a VA doctor, then credible supporting evidence that the stressor occured must be provided.

Unemployment High for Young Veterans

Sun, 22 Jan 2012 08:00:00 EST

While members of the military make up a tiny fraction of the U.S. population, the unemployment rate for America’s military veterans far exceeds the national average. About 12 percent of Iraq and Afghanistan veterans are unemployed, compared to 8.5 percent of Americans nationwide.

More Veterans Receive Help With Heating Bills

Fri, 20 Jan 2012 08:00:00 EST

The number of low-income veterans receiving government assistance for their heating and cooling bills hit a new high last year, according to a survey by a federal energy-assistance program.

VA doctor's cannot deny based on missing service or post-service records

Fri, 20 Jan 2012 08:00:00 EST

In a recent case, a VA doctor found against a veteran having a back disability because there were no treatment records in service. The veteran served in the U.S. Army in the 1950s and filed his claim for a back disability in the 2000s. The Board denied the claim based on the VA doctor examination. The Court overturned the BVA decision. The doctor was ordered to do a new examination that took into account the veteran's testimony of treatment and x-rays of the back while in service.
The same doctor reviewed his previous opinion. This time, he said he accepted the veteran's testimony of treatment and x-rays in service, but held that because there was no record of treatment and diagnosis of the back condition until 1970, a twelve year gap in records according to the doctor, it found the back condition most likely related to age.
Of course, the doctor ignored the veteran's and his wife's testmony that he was treated for a back injury by three different doctor's during the 12 year gap in records. Under a reasonable interpretation of the Buchanan and Jandreau cases, the VA is not permitted to ignore lay testimony of post-service treatment. The fact that the post-service treatment records are missing should make no more difference than missing service records.
Thus, it is my opinion that the VA doctor opinion is going to be thrown out again. The VA doctor is going to have to provide a new opinion, one that takes into account that the veteran continuously sought treatment for his back during the 12 years. The fact that the medical records are missing should have no bearing on the doctor's opinion, and he should accept the veteran's testimony of treatment after service. Given that the veteran can show continuous treatment through his testimony, the VA doctor should change his medical opinion and show that it is related to service.
For further reading, see the case of Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).

Edward Derwinski, 1st Veterans Affairs Sec'y, Dies

Thu, 19 Jan 2012 08:00:00 EST

Edward Derwinski, 1st Veterans Affairs Sec'y, Dies

Growing up with a parent suffering from PTSD

Wed, 18 Jan 2012 08:00:00 EST

Experts say as many as 20% of veterans returning from Iraq and Afghanistan suffer from post traumatic syndrome disorder, or PTSD.

Is VA supposed to offset DIC award if widow was getting SBP?

Wed, 18 Jan 2012 08:00:00 EST

Is VA supposed to offset DIC award if widow was getting SBP?

I know I should know the answer to this, but in light of VA giving a client a full back award for DIC, I want to make sure. I never bothered to check when I signed her up, but now she asks me if this award will affect her receipt of her Survivor's Benefits Plan (SBP) payments that she has been getting since the vet died. I told her I thought that amount would probably be offset by the new higher monthly DIC payment.

DoD decided not to appeal Sharp v. United States, 580 F3d 1234 (DC Cir, 2009). That case held that the statutory provision only precludes offset for widowed spouse receiving SBP/DIC and remarried at age 57 or older. If remarriage didn't occur, then DFAS enacts an offset.

The widow is going to be subject to reduction of their annuities in the amount of the monthly DIC, simply because they have not remarried. Sharp turns on the 2003 revision to 38 USC 1311, at para (e). That's the section that eliminated the offset. However, it is limited to "the case of an individual who is eligible for DIC under this section by reason of section 103(d)(2)(B) of this title." Section 103(d)(2)(B) restored DIC eligiblity of widows who remarried after age 57. So if the widow did not remarry, then the widow is not an "individual who is eligible for DIC" by reason of section 103(d)(2)(B). I checked the DoD website per Drew's reference, and that seems to be how DoD is construing Sharp -- very narrowly, applicable only to widows who remarried after age 57.

It is my understanding that the annuity is taxable income, so there is still a potentially greater benefit to the widow in receiving DIC in lieu of SBP annuity because of tax consequences.

However: does the retro DIC award create some kind of overpayment of the annuity, where the retro DIC covers the time period when the widow was receiving the annuity? I can't find any authority for that, and I don't know how DoD would collect it anyway, since DoD will already have reduced the annuity in an amount equal to the monthly DIC payment. Anybody have any ideas about this?

Medical Center To Provide Benefits Workshop For Vietnam Vets

Tue, 17 Jan 2012 08:00:00 EST

Medical Center To Provide Benefits Workshop For Vietnam Vets

Medical Marijuana and PTSD

Tue, 17 Jan 2012 08:00:00 EST

Studies have already shown the benefits of marijuana for those suffering from PTSD, but can our government agencies be convinced?

Sean Kendall Snow Bicycle Race

Tue, 17 Jan 2012 08:00:00 EST

Some times I get out and have some fun. Here is the Denver Post article about the race last Saturday.

Read the article here.

Veterans Benefits News

Mon, 16 Jan 2012 08:00:00 EST

A federal judge has quietly approved a settlement that will deliver better benefits to nearly 2,100 veterans who've been medically discharged since 2002 with post-traumatic stress disorder.

Read more here: http://www.fresnobee.com/2012/01/13/2682680/veterans-with-post-traumatic-stress.html#storylink=cpy

Brain scan and PTSD

Mon, 16 Jan 2012 08:00:00 EST

Brain scan diagnosis of PTSD.

Mobile Veterans Centers

Mon, 16 Jan 2012 08:00:00 EST

The Department of Veterans Affairs today deployed 20 additional Mobile Vet Centers from the production facility of Farber Specialty Vehicles to increase access to readjustment counseling services for Veterans and their families in rural and underserved communities across the country.

Knee Replacements

Mon, 16 Jan 2012 08:00:00 EST

I have been getting calls from veterans that have had knee and/or hip replacements for their service-connected disabilities. Unfortunately, one veterans had the knee replacement done at a private hospital and did not call the VA to let them know that they wanted a claim for increase. When a veteran has a knee replacement, VA regulations, 38 C.F.R. sec. 4.71a (2011), provides that a veteran shall receive a 100 percent rating for one year after a knee replacement. If the knee or hip replacement is at a VA hospital, and is for an already service-connected disability, a claim for rating increase to 100 percent is automatically assumed. However, if the knee replacement is at a private hospital, until the VA knows of the knee replacement, there is no claim for the 100 percent rating. If a veteran waits too long, after the one year deadline, then he or she will not receive the one year of 100 percent benefits, but will be rated for residuals only.