Challenges Raised to Proposed VA Rules

Posted at the suggestion of LtCol John Harris, from VAWATCHDOG.ORG. (Jan 11 note: I have read this carefully and now fully believe the proposed rule change is inappropriate and anti-veteran!)

Doug Rosinski’s comment on VAWatchdog.org.

On October 31, 2013, VA published a proposed rulew hich seems to be flying under the radar.  Perhaps that is because the Federal Register notice is entitled "Standard Claims and Appeals Forms" and most people have not paid much attention to it.  Despite its boring title, I can assure you that this is potentially one of the most far-reaching rule changes in a very long while.  We have attached the comments of the Veterans Justice Group LLC which more fully explains our concerns with this VA action. In this rulemaking, VA is proposing nothing short of creating a fully adversarial appeals process for denied claims beginning at the Notice of Disagreement (NOD) and a "completeness" requirement for initial claims that sets the effective date of an award as the date VA agrees that a claim is "complete" – not the date a claim is submitted.  Both of these changes turn the VA process on its head by creating new duties for claimants and shifting some current VA duties to claimants.  Ironically, in our view, the disruption caused by these changes – not to mention the direct effect on claimants' ability to file and appeal claims – is very likely to cause more delays and more wasteful litigation. While we believe very strongly that the Secretary does not have the legal authority to implement the radical process changes proposed in this rulemaking, it is stunning to us that he would try to do so under the guise of "standardizing" VA forms.  

Actually, we are supportive of standardized forms and VA correspondence, as it is incredibly frustrating to receive 57 (or more) versions of rating decisions, etc., from VA.  It is, however, quite another thing altogether to dismantle the "non-adversarial" VA system in the process.   Two proposals are particularly stunning.  In the first, VA proposes to eliminate the "substantially" complete and "informal" claim categories.  Instead, there will only be "incomplete" and "complete" claims.  Anything other than a "complete" claim "could not be the basis of an effective date."  Further, to be "complete" a veteran's claim application would have to state the "specific medical conditions" for which he or she seeks benefits. [C-123 Veteran’s note: Under Secretary Hickey strongly recommends veterans submit Fully Developed Claims with assistance from qualified Veterans Service Officers, such services freely provided by VFW, DAV and other organizations.] 
Again, we do not believe that the Secretary has the legal authority to implement such a requirement.  But, unless the proposal is changed or withdrawn, it may very shortly be the case that a veteran cannot even submit a claim unless he or she states a specific medical condition - no more "mental condition," "back problem," or "trick knee" claims.  [C-123 Veteran’s note: imagine the dozens of diagnostic codes for what most laymen would complain of as back pain!] And, as we read the proposed rules, if the condition specified is not the exact diagnosis by a VA doc – the claim will be denied (so a claim for PTSD will be denied if diagnosed as depression, even though both are rated from the same criteria).  This will surely "streamline" VA claims processing.  It is, however, little more than a re-packaged "well grounded" claim requirement (which Congress revoked in 2000).  

Only this time, VA would be able to block claims from being filed AND later reject other claims for failing to claim the specific medical condition. The second change is equally damaging to veterans.  A Notice of Disagreement (NOD) under the proposed rules would not only need to be submitted only on a specific VA form (and "complete"), but would also have to specifically "enumerate the issue or conditions for which appellate review is sought" and "any issues or medical conditions not enumerated would not be considered appealed."  In other words, VA is trying to get out of its statutory requirement to consider any issues "reasonably raised by the record" by creating a duty for a claimant/appellant to identify all the issues or forever lose the ability to have those claims reviewed.  Some call this a "technical pleading" requirement, which is essentially how every adversarial court operates - if you start an appeal it is your duty to identify the issues and the issues not raised are considered abandoned.   Once again, we do not believe that the Secretary has the authority to make this change, but if these rules are implemented, EVERY VETERAN RECEIVING A DENIAL BETTER GET AN EXPERIENCED VETERANS LAW ATTORNEY BEFORE SUBMITTING AN NOD because failing to note any factual or legal issue ON THE NOD will be waived and become final without appeal.  

As experienced veterans law attorneys, the proposed changes are about as good for business as anything that could be proposed.  We are not rejoicing, however, because we also realize as experienced veterans law attorneys the magnitude of confusion and distress that these proposed changes would bring to essentially every veteran attempting to file a claim or appeal an unfair denial.  The VA system simply cannot be "modernized" by abandoning the fundamental pillars of "non-adversarial" claim adjudication and VA "duty to assist."  This is especially true when there are so many other, less disruptive actions that remain untried.   Indeed, the agency admitted in the Notice of rulemaking that it takes an average of more than 3 weeks ("22.6 days") for mail received at a VA office to reach the claim adjudicator.  [C-123 Veteran’s note: VA encourages electronic submission of supporting documents by eBenefits, a very helpful step but one which needs better opportunity to classify documents as the veteran submits them. For instance, the second-most frequent form emailed the VA is their VA 21-4138 (AKA “Buddy Statement”) but that has no classification and must submit under “Other Correspondence.”] That mail is then put (or scanned) into a file without an index.  

As we noted in our comments, it takes just as long to find a standard form in an unindexed 1,000 page [computer] file as it does to find any other document.  For the second largest agency in the federal government to fail to address these two problems - something no other entity seeking "efficiency" and "streamlined" processes would ever tolerate - is incredible.  To the contrary, the actual proposed actions emphasize barriers to new claims and appeals, rather than more efficient administrative practices. In sum, until the Secretary can figure out how to have the mail delivered across a building in the same time that the Post Office takes to send it across the country, we will remain unconvinced that gutting the rights of veterans and their families is the "only" way to improve efficiency.  "/S/ "Doug Rosinski, Esq.Veterans Justice Group, LLC" 

C-123 Veteran's Thought: Setting the effective date of compensation to be the award date would seem to deny veterans a "catch-up" check which today is backdated to the date of their original declaration of intention to file a claim. Given the years that claims, appeals, remands and mistakes can cost, it seems unfair to give the VA this additional incentive to deny claims as long as they can find excuses to do so. Today, veterans are denied medical care by VA until their claims are approved, saving the VA millions of dollars and placing the burden of medical care on the veteran. The Secretary proposes a scheme for the VA to also save money on "catch-up" checks...totally inexcusable.