Instead of actually reducing the delays for veterans receiving medical care, the Department of Veterans Affairs is gaming the system by changing what it counts in the claims backlog and making it harder for the most vulnerable veterans to file claims.
For the past month, allegations about delays in providing medical care, including allegations of preventable veteran deaths and manipulating appointment records, have engulfed the Department of Veterans Affairs (VA).
However, before most veterans can see a VA physician, the vet must first have an approved VA disability claim. Sadly, the VA’s claim processing mires veterans in red tape, and the situation is about to get far worse.
Last month, with typical Washington fanfare, the VA proclaimed it had made “significant progress toward our goal of eliminating the claims backlog in 2015” by reducing this backlog from 611,000 to 344,000 veterans’ claims pending more than 125 days.
Although the VA’s numbers appear promising, a closer look reveals a far different story: The 344,000 claims are only those that have been pending for longer than four months. The VA’s total disability claim inventory is actually 1.3 million.
Among the one million claims not mentioned in the VA’s press release are 275,000 claim appeals languishing for an average of four years before a VA decision. According to the Center for Investigative Reporting, as many as 19,500 veterans died while waiting on a VA claim decision in the fiscal year ending September 2012.
A disability claim becomes an appeal when the veteran disagrees with the original VA decision. Why are there suddenly so many appealed claims? The agency’s rush to fulfill the president’s promise to eliminate the initial claim backlog by next year is resulting in a surprisingly high error rate, which the American Legion suggests is 55 percent. That means, for every 100,000 VA decisions on disability claims, 55,000 have errors and would warrant an appeal.
By deciding these claims quickly (and too often erroneously) the VA effectively transfers their “initial claims” backlog into an unreported pool where the logjam of appeals is growing by the day.
Veterans and the VA are well aware of this accounting deception. Rather than making reasonable reforms such as increasing staffing and improving training, the VA proposed sweeping rule changes for veterans seeking benefits.
In October 2013, realizing the agency couldn’t meet the goal set by the president, the VA proposed several harmful regulations that would effectively block initial claims and appeals.
Under the guise of improving efficiency by mandating the use of new VA forms, the agency wheeled in a Trojan Horse of proposed regulations so it could declare victory over the backlog in 2015.
These proposed regulations affect how claims are filed and how a veteran appeals a denial. Currently, veterans can notify the VA via letter – an “informal” claim – that they are seeking a disability. Once the VA approves the claim, the effective date of the benefit is the date of the “informal” claim.
When the VA denies the claim, the veteran must simply communicate in writing a disagreement with the agency’s decision. Court precedent rejects “legal sophistication” beyond that which can be expected of a lay claimant.
The VA’s first proposed regulation would establish a new set of complicated bureaucratic forms and other hurdles to eliminate an estimated 600,000 veterans’ “informal” claims each year.
The VA’s second proposed regulation would establish roadblocks to claim appeals with additional forms and red tape. Specifically, the VA wants to mandate that veterans file a very complex, four-page legal pleading to start the claim appeal process – before a veteran can retain an attorney.
By raising the bar on what constitutes a claim and creating complicated steps to properly file appeals, the VA wants to force disabled veterans to tell the VA why the agency’s decision is wrong, to provide the VA with the exact disability rating for each medical condition they are seeking, and to list the effective date the veteran believes benefits should have started.
Under the proposed rules, incomplete or improperly filed claims and appeal forms will be rejected. The clock will start only when the veteran completes the VA’s forms properly – potentially causing veterans to lose years of benefits or receive lower disability ratings.
The VA’s highly-adversarial proposed regulations quickly drew fire from major veterans’ organizations in Washington. In February, Gerald Manar, the deputy director of National Veterans Service at the Veterans of Foreign Wars told Congress:
What you see here is a cold-blooded assessment by VA officials that if they cannot achieve their goals under the current standards, they will change the rules to meet their goals.
Even in the face of strong opposition from advocates, VA leaders vowed to press forward and block veterans’ claims and appeals to satisfy the president’s promise.
As attorneys who represent veterans with disability claim appeals, we see the VA’s proposed rules as inappropriate because the VA seeks to submerge our veterans in a sea of confusing red tape. For veterans suffering from diminished capacity due to post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI), to homeless or unemployed veterans who would not have access to the required forms, the VA’s proposed adversarial regulations represent significant obstacles.
The VA must take four urgent steps so all our nation’s disabled veterans receive a prompt and accurate claim decision. While the agency’s new computers are a step in the right direction, more must be done.
First, the VA must be transparent and admit there are 1.3 million total pending disability claims – not just the 344,000 initial claims pending longer than four months.
Second, the agency should launch a nationwide effort to ensure it has enough properly trained staff to complete claims properly the first time.
Third, when the VA makes a mistake, the agency must still treat all claims – both initial claims and appealed claims – equally. Veterans with appealed claims should not be in competition against other veterans with initial claims for scarce government resources.
And, fourth, the proposed Trojan Horse regulations must be stopped because they disproportionately and adversely impact our most vulnerable veterans – those who are homeless and/or unemployable and may be suffering from diminished capacity due to conditions such as PTSD and TBI.
The VA can and must do better. After serving our nation, including fighting battles on foreign soil, our veterans must not be forced to spend months or years navigating through a legal minefield at home created by the agency responsible for their care.
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