Retiring Veterans Court judge calls VA appeals system a 'tragedy'

(Note: Appeals to the VA Board of Veterans Appeals now take between three and seven years. The Court of Appeals for Veterans Claims can take another three or more years to hear a case. Most often, cases decided in the veteran's favor are returned to regional offices where more delay eats up yet more time.)

By NIKKI WENTLING | Stars and Stripes | Published: March 12, 2019

WASHINGTON — The retiring chief judge for the U.S. Court of Appeals for Veterans Claims told lawmakers Tuesday that the Department of Veterans Affairs appeals system is “ancient” and “inefficient” and in need of drastic change.

While testifying before a House Appropriations subcommittee, Chief Judge Robert Davis said the pressure on VA employees to get through a large backlog of benefits claims leads to poor decision-making and a high number of appeals. Davis, a Navy veteran, has held a seat on the Court of Appeals for Veterans Claims for nearly 15 years. The court, often referred to as “Veterans Court,” provides veterans an impartial review of decisions made by the VA Board of Veterans’ Appeals.

“I think it’s a tragedy, the way the system operates currently,” Davis said. “I think we’ve been tied to a structure that is ancient and inefficient. The sooner Congress and all of us in this area look at this system from a 50,000-foot level and say, ‘We need to make these kinds of adjustments,’ the sooner we’ll be able to meet the needs of our veterans in a much better way.”

Davis has been critical of the VA system. The topic was brought up Tuesday by Rep. Matt Cartwright, D-Penn., who cited an August article by the Wall Street Journal in which Davis criticized the appeals process as “horribly flawed.” “We can’t ignore that when you come here to testify, chief judge,” Cartwright said.

‘Cautiously optimistic’ about new law

Davis elaborated Tuesday on his comments to the Wall Street Journal. He said he remains skeptical of a new law implemented last month that VA officials promised would allow veterans to receive decisions on their benefits claims in days or months, instead of years.

The new law, titled the Veterans Appeals Improvement and Modernization Act, was approved by Congress in 2017 and went into effect Feb. 19. It involves multiple avenues for veterans to appeal their claims, including an option to get a review from a higher-level adjudicator or go directly to the Board of Veterans’ Appeals.

Under the old system, veterans waited three to seven years to reconcile their appeals. The new one could get veterans through the process in as few as 125 days, VA officials vowed. Officials also said the new system would help cut down the backlog of appeals, which included 402,000 cases as of last month.

“I’m cautiously optimistic that this modernization act may help the system, but in my view, congressman, it is tinkering around the edges, when a larger fix is needed,” Davis said. “And it’s a fix that might be viewed as radical by some.”

When pressed for specifics, Davis suggested using mediation to negotiate a settlement between the VA and veterans or providing them general pensions. He said there were “a lot of possibilities” that he believed should be discussed with the VA secretary.

Once he retires from the court, Davis agreed to discuss the issue further with Rep. Debbie Wasserman-Schultz, D-Fla., who is chairwoman of the House Appropriations Subcommittee on Military Construction, Veterans Affairs and Related Agencies.

Court experiences a ‘second surge’

Davis appeared before the subcommittee Tuesday to discuss the court’s budget request for fiscal year 2020, which totals $35.4 million. The proposed amount — released Monday as part of President Donald Trump’s budget plan — didn’t increase from the fiscal year 2019, though Davis said the court experienced a surge of work in 2018.

The court had its first surge in 2009, when its case load increased from about 2,000 cases each year to more than 4,000. That year, Congress temporarily approved two more judges to join the court, bringing it from seven judges to nine.

Davis described a “second surge” last year, during which the case load rose from about 4,000 to more than 6,800.

The VA touted last year that the Board of Veterans’ Appeals had worked through a record number of cases – about 85,000, up from 52,000 cases the previous year. Davis attributed the surge at the Court of Appeals for Veterans Claims to the board’s increased pace.

He warned appropriators Tuesday that the court might soon need congressional approval for an additional two judges, bringing the total to 11. Of the nine judges now on the court, two – including Davis – are scheduled to retire at the end of their 15-year terms in December 2019.

“We’re watching our numbers carefully to track the very real possibility that nine judges may not be sufficient to keep pace with this growth trend,” Davis said.

wentling.nikki@stripes.com
Twitter: @nikkiwentling
 

VA Secretary Proposes Overhaul of Claims Appeals Process for Senate Consideration. "Fails Veterans," He Insists.

(note: my own claim submitted in 2011, denied in 2012, appealed immediately, is coming up on its third year waiting for the VA regional office to forward it for appeals, after which the Board of Veterans Appeals takes about another six months to process. If successful(?) in my appeal, the claim is returned to the regional office to begin the process all over again in hopes for a more positive outcome. The process described by Secretary McDonald is truly designed to wait out veterans remaining days..."delay, deny until they die" is how the Vietnam Veterans of America describe it.

It might not be clear to non-veterans that all the while a claim sits awaiting an initial decision and then the appeal, VA refuses all medical care and other benefits. In my case, these last five years with cancer, heart disease and other problems would have had me dead and off the VA's queue by now if I'd not had other medical care available. The longer VA delays a decision, the more money it saves.)

“Decades worth of law and policy layered upon each other have become cumbersome and clunky,” McDonald said in a statement to House lawmakers and the press. “Most importantly, it is now so antiquated that it no longer serves veterans well as many find it confusing and are frustrated by the endless process and the associated length of time it can take to get an answer.”

The Cabinet secretary he needs both legislation and resourcing to “put in place a simplified appeals process” to handle the cases in a matter of months, instead of years.

McDonald’s call echoed comments he made to the Senate Veterans' Affairs Committee on Jan. 21 during a hearing on department reforms. He said that with lawmakers’ help, officials could reduce the processing time for appeals cases to less than a year by 2020, much quicker than the current three-year average wait for decisions.

VA officials have worked in recent years to clear the backlog of first-time benefits applications after intense public criticism about the waits facing veterans seeking disability payouts.IOver the last three years, the number of cases pending for four months or more has dropped from more than 612,000 to fewer than 80,000 this week. But officials missed their publicly stated goal of reaching zero by the end of 2015.

At the same time, the number of appeals — cases where veterans believe claims processors have misunderstood the severity of their injuries and shortchanged their benefits payouts — has risen by more than one-third, to 440,000 cases.

VA officials have blamed the rise on the growing number of veterans filing benefits claims, noting the percent of cases heading to appeals has held steady at around 12 percent in recent years.

They also note that administrative moves alone to certify and transfer appeals usually take more than two years.

Veterans also have the option of adding new illnesses and disabilities as the appeals process drags on, giving them the opportunity to receive larger payouts but also lengthening the wait on decisions.

McDonald called the current wait times for veterans in the process “unacceptable.”

The VA secretary says he wants a new appeals process “with the timely and fair appeals decisions veterans deserve, and adequate resourcing.”

House lawmakers have begun work on legislation to reform the appeals process. A bill sponsored by Rep. Beto O’Rourke, D-Texas, would create a “fully developed appeals” process, limiting introduction of new evidence and arguments but guaranteeing quicker processing time and decisions.

Mirror legislation is expected to be introduced in the Senate in coming days. The proposal could become the basis of the type of reform McDonald wants, and has support from key lawmakers from both political parties.

But Senate Veterans' Affairs Committee Chairman Johnny Isakson, R-Ga., last week warned that getting an overhaul plan through Congress in an election year  “will take significant legislative willpower, but it's not impossible.”

McDonald said plans are underway to move on upgraded mail systems and digitized records that will speed the process some. Staff is undergoing retraining to better handle those cases.

“But (those steps) will not be enough,” he said. “We must also look critically at the many steps in the current complex appeals process used by VA and by veterans and their advocates to design a process that better serves veterans.”

"Never-Ending VA Appeals Process Hurts All Vets" -Yes, but appeals are for VA's errors, not veterans' greed!

Claims at VA Regional Claims Office

By Francis Rose, from Government Executive, December 2015. (Veteran's response at bottom)

One of the deepest questions philosophers have considered over the centuries is the sometimes conflict between the rights and needs of society, and the rights and needs of each individual member of that society.
The latest point in the debate over fixing the Veterans Affairs Department is a microcosm of that debate.

The claims backlog the Veterans Benefits Administration has been dealing with for years is finally below 100,000, according to numbers from late summer. The agency promoted the backlog reduction then as a sign that its management strategy was working, in contrast to scandals inside the agency’s other main branch, the Veterans Health Administration. The timing was unfortunate, though; whatever good publicity the VBA, and its then-leader Alison Hickey, might have gotten out of the news was obliterated by the scandal surrounding two employees who received enormous relocation benefits after engineering jobs for themselves outside Washington, displacing other VA officials who held those jobs.

Those numbers look different, though, in light of a Los Angeles Times article on the backlog. Given what the Times reports, it seems unlikely the agency will ever be able to make it go away. The biggest holdup to making the backlog disappear is the most politically unpalatable element of the claims process to do something about.

The biggest roadblock, the Times story makes it seem, is the veterans themselves.

The major reason the backlog doesn’t shrink any faster, the way the story tells it, is that vets submit appeals over and over again when they get outcomes they don’t agree with, hoping against hope for a different outcome. The article tells the story of one vet who did indeed get a different outcome after many tries. He’s still in the system, though – now trying to get retroactive benefits.

The reason he and the other vets do so? Because they can.

“Unlike U.S. civil courts, the appeals system has no mechanism to prevent endless challenges,” the Times’ Alan Zarembo writes. “Veterans can keep their claims alive either by appealing or by restarting the process from scratch by submitting new evidence: service records, medical reports or witness statements.”

The logistics of the backlog is complicated, and has lots of qualifications. The 100,000 number VA celebrated in August was for initial claims applications that were 125 days old. Since that number was well over half a million when the agency declared war on it two years ago, the progress looks real.

The news isn’t all good, though. The Times reports while the claims backlog has shrunk, the appeals backlog – vets who don’t like the response they get from VA and ask to have it reviewed – has climbed from 167,412 in September 2005 to 425,480 in October 2015.

“VA officials say there are two possible solutions to the bottleneck,” Zarembo writes. Those are “money to hire more lawyers, judges and other staff to process appeals, or a rewrite of the law by Congress.” In essence, the VA has pushed the backlog from claims to appeals by applying its resources to claims. It appears to be playing Whac-A-Mole with the claims/appeals process; one goes down, the other pops up.

Since more money for more staff isn’t likely, a rewrite of laws seems more possible. And that is where the philosophical question of the needs of the many versus the needs of the individual comes in. Cutting the number of appeals vets can file would make sense from a purely logistical perspective. Some vets appeal dozens of times – or more – and never win. Is infinity the right number of allowable appeals? Probably not. Is one the right number of allowable appeals? Probably not. But where in between those two is the right number? And how does Congress make that decision, as it will inevitably have to do?

Everyone in politics today wants to “support the vets.” Certainly doing anything that appears to harm veterans individually is a ticket to political trouble; I can hear the negative ads in my head already.

But endless appeals inevitably mean endless backlogs. And the person who can make the political argument that some limit – however big or small it turns out to be – will help vets collectively, will make a huge difference for the rest of the vets waiting in line for their cases to be decided.

A Veteran's Response:

Ms. Rose's essay basically blames veterans for gaming the VA system via the appeals process. "Why do they do it," she asks. "Because they can."

I say, because we must! I can only understand VA's appeals process from my own perspective, and part of that is VA's claims process as well....they cannot be separated.

Veterans currently face an average of 315 days for an initial claim to be processed. In 2012, the Board of Veterans Appeals (BVA) overturned 28.9% of the denials issued for compensation claims, and errors were found in another 46% of appealed claims. These claims were sent back to the original VA Regional Office for an additional review.

Tom Murphy, VBA’s director of compensation services, agreed that initial accuracy has a significant role in keeping down the backlog of both repeated claims and appeals. “If you’re having quality issues, it takes longer to work a case the second or third time than it takes to get it right the first time,” 

An appeal is submitted when a veteran claims VA errored on his/her claim. A claim is an initial application for benefits – medical care as well as compensation, Yes, I agree some of my brothers and sisters do submit an inappropriate number of claims, as also appeal with faint justification VA's inappropriate VA's decisions on the claims.

But: Claims are more typically for illnesses and injuries the veteran legitimately believes tied to military service. Appeals more typically are for errors the veteran believes (correctly or not) VA made in deciding the claim. Appeals mount up because of errors made by the Veterans Benefits Administration (VBA) in evaluating claims and also because veterans and their advocates (veterans service officers from VFW, DAV, etc.) themselves made errors in preparing claims. There are many other reasons, and certainly gaming the system is one of them, but the system's errors are basically to blame.

First among them is the remand procedure. Remands are where the Board of Veterans Appeals finds mistakes by VA in processed the claim. A remand vindicates the veteran but does nothing to resolve the claim, instead squeezing it back into the workload of the regional claims staff. The VA makes mistakes on more than 50%  of all claims it processes, most of which are never appealed.

• First Solution: Better quality initial claims decisions
• Second Solution: Faster preparation by regional offices of appealed claims for forwarding to BVA
• Third Solution: BVA must be given authority to resolve an issue without a useless remand!
• Fourth Solution: Regional offices should be given reconsideration authority when VA errors are noted while preparing appealed claims before forwarding to BVA
• Fifth Solution: VA should impose a token $10 filing fee for subsequent appeals...a vet's very first appeal is free but a $5 threshold is imposed thereafter for all appeals
• Sixth Solution: Some common sense. For instance, once the C-123 issue was resolved for post-Vietnam veterans, BVA began remanding claims with airplane details but completely outside the scope (by years, location, other facts) of the C-123 Agent Orange issue

Why a failed appeals process, choking on nearly a million frustrated claims?

1. An evolving medical situation, or age, presenting additional illnesses or injuries requiring new claims
2. VA decisions which only partially address issues claimed, leaving particulars to be appealed
3. VA's evolving rules. For instance, C-123 veterans were for years denied all benefits but ground rules changed and permitted claims and appeals
4. The veteran learns from the denied claim what proofs or arguments should have been made in the initial application, and either appeals or repeats the claim with new and material evidence
5. VA's errors in deciding claims
6. VA regional offices taking years to prepare an appealed denied claim before forwarding to the BVA; BVA actually decides appeals rather quickly once received, but the majority of the years a veteran must wait for an appeal is wasted at the regional office waiting for the claim to be readied for the BVA
7. VA has an inadequate system for veterans to request reconsideration of denied claims, and veterans too often leap to an appeal rather than a faster reconsideration process
8. VA permits no input from a vet's own VA physician in support of a disability claim or appeal, yet VA staffs the BVA with medical experts to help oppose appeals. Similarly, VA staffs the BVA with attorneys to argue against veterans' claims. An appeal is thus an uphill battle for a veteran with VA bringing in big guns to oppose a claim...and leaving an incentive to appeal
9. VA's regional office Decision Review Officer (DRO) program is overburdened by its DROs working claims and not appeals
10. One need a veteran continues with claims and appeals even after 100% service connection is granted is to address Combat Related Special Compensation requirements
11. Sometimes a veteran believes strongly an important issue is unresolved even with a 100% service connected decision on a separate issue, and seeks VA acknowledgement. Awards for 100% service connection should include language to encompass all remaining but unresolved issues under the one decision
12. Veterans service organizations should exercise judgement in supporting veterans' appeals, rather than rubber-stamping them past all reason; at some point VSOs should decline to represent a veteran any further
13. Legislation is needed to help address a failed appeals system

White House Seeks to Ease Veterans’ Access to Care

By JULIE HIRSCHFELD DAVISNOV. 11, 2015

WASHINGTON — The Obama administration on Wednesday will call on Congress to enact measures to help military veterans gain easier access to health care, disability and educational benefits, part of a push to spotlight its efforts to improve the way the government treats veterans after a scandal at the Department of Veterans Affairs.

President Obama will urge Congress to improve a program that allows veterans to receive private medical care, speed the appeal process for disability claims and pass legislation aiming to improve the quality of schools that serve veterans. Timed to coincide with Veterans Day, Mr. Obama’s proposals also come as the administration is promoting the first fruits of its efforts to reduce homelessness among veterans, with Gov. Terry McAuliffe of Virginia set to announce that his state has become the first to end veteran homelessness.

Continue reading the main story

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• V.A. Hospital Leader in Wisconsin Fired Over High Painkiller DosesOCT. 31, 2015

The cities of Las Vegas; Syracuse; and Schenectady, N.Y., will also announce that they have ended veteran homelessness, the White House said.

The administration laid out a plan in 2010 to end chronic homelessness among veterans by the end of this year, saying that goal would be reached when there were no veterans sleeping on streets and no more than 12,500 veterans in shelters or transitional housing. In August, Connecticut became the first state to be designated by the administration as having achieved the milestone.

The Obama administration is also set to unveil a new tool to allow veterans to compare college and university options, modeled after a college scorecard website it started in September to provide information to prospective students and their parents about annual costs, graduation rates and salaries after graduation.

It will also announce that all 50 states, the District of Columbia and Puerto Rico will provide “recently transitioning veterans” and their dependents with in-state tuition at public colleges and universities, in line with a provision in the $16 billion overhaul of the Department of Veterans Affairs passed by Congress last year after the scandal.

The moves reflect the degree to which Mr. Obama is still fine-tuning that law, including provisions that allow veterans to use private doctors at the government’s expense if they cannot get an appointment with a Department of Veterans Affairs physician within 30 days. The White House said that 7 percent more veterans have been able to use that option over the past year, but that the program needs improvements. The agency sent Congress a plan to do so earlier this month.

Mr. Obama will also call for speeding what the White House called a broken appeals process for disability claims. Last month, the Department of Veterans Affairs administrator responsible for reducing the huge backlog of veterans benefits resigned after questions were raised about the agency’s assertions that it had drastically reduced the number of pending claims.

The steps come as the administration works to recover from the scandal of backlogs and wait times that last year caused the resignation of Secretary Eric K. Shinseki and the early retirement of the agency’s under secretary for health, Dr. Robert A. Petzel.

Institute of Medicine C-123 Agent Orange Report – Still No Action 5 Months On

– Months since IOM report to VA






– C-123 Veterans' claims permitted by VA 

Three Photos = Timeline for C-123 Agent Orange Claims

Click HERE for a very detailed lineline on Dipity.Com

VA Board of Veterans Appeals: Another Log Jam in Claims Processing

We all know of the lengthy delays built into the VA disability claims process, although we also must acknowledge the improvement in processing time. VA's inventory of overage claims is much better now than a year ago, and we hope for continued improvement. Lots of hard work has gone into that brighter statistic.

One less encouraging statistic is the entire Board of Veterans Appeals.

The problem begins with denied claims. If a veteran's claim is too complicated, it seems best to most adjudicators to deny it and force the vet to either drop the issue or file an appeal with the BVA. If the claim requires a bit of push-back by the adjudicator against C&P leadership, as in the case of C&P ordering C-123 claims to be denied, the adjudicator takes the easy path and denies, again forcing the vet to give up hope or appeal.

If the adjudicator's desk is crowded and production statistics are down, a denied claim counts just as much as an approved claim, especially when any "benefit of the doubt" or "non-adversarial" leeway is needed...and claims either denied or delayed both save the Department money right off the bat.

But of course the vet can appeal. While that is a solution, it is also the core of the problem.

Three to four years until a BVA decision. For a veteran who already has a diagnosed illness and has submitted a claim, then waited a year or two for a decision, he/she now has to wait another three to four years for a BVA decision. BVA statistics worsened during 2013 and are worse yet for 2014...they just don't have the administrative staff and ALJs necessary to handle the work.

But the problem caused veterans has a cause more incidious than just the BVA staffing.

First, it begins with the number of claims denied by regional offices, forcing the vet to an appeal. Too often, a complicated case is "resolved' by the VARO dumping the vet into the BVA line. Too often, the adjudicator's statistics are weak and easily improved by denying more claims, faster, as opposed to approving them. An approved claim, if made in error, is hard for VA to correct, but a denied one leaves VA with the good feeling that the vet still can find justice through an appeal.

But that's not the case. We call a one or two year wait for the claim to be processed at the regional office unacceptable, because during that period the vet is denied all medical care for the illness or injury, although, to be fair, sometimes VA provides limited treatment on a presumptive eligibility basis. Once the claim is denied, another dose of injustice, a huge one, is delivered...again, by the regional office.

The VA sits on the claim appeal at the regional office for years. The claim has to be prepared, with a Statement of the Case provided the vet and other administrative steps taken, before the appeal is packaged and sent to the BVA. And this is where VA has built-in an additional time-killer (part of their "Delay, Delay Until They Die" policy towards us?) According to the most recent BVA report to Congress, BVA takes "only" 245 days after receiving an appeal to make a decision.

The rest of the three to four year delay is accomplished at the regional office. 962 days, to be exact. 962 days to explain why the claim was denied (which they've already told you) and forward to the BVA. 962 days wasted on something that shouldn't take 62!

So if you're the veteran with soft tissue sarcoma, seeking life-saving treatment for your cancer, your claim has you waiting one or two years before a possible approval at the local VA regional office, or waiting a total of between four to six years if your claim is denied and you have to wait for BVA to decide on an appeal...hoping the decision is in your favor.

But VA hides another nasty trick up their sleeves regarding the BVA: either deliberately or through error, regional offices deny claims they know leave the veterans with some issue the BVA will remand back to the regional office for further development. Anything large or small, anything overlooked, can force BVA to remand the veteran's claim back to the regional office for more work. Forget to address one of the claimed illnesses, fail to order compensation physicals, forget to get something signed or dots dotted or some small detail, and the claim doesn't get resolved by BVA but remanded. In truth, a remand is an error on the part of the regional office, not the vet nor the BVA!

After remand, the claim might get approved at the VARO as a result of that additional work, or more often returned to the BVA...and that cycle takes "only" another 445 days. And sometimes another remand! Only a 28% chance of a BVA award but 45% change or a remand!

Back to your soft tissue sarcoma: you've now waited five to seven years hoping VA will save your life.

Good luck. Oh, and thank you for your service.

VA Backlog Down - VA Appeals Through the Roof!

While Backlog Drops for Disability Claims
Backlog for Appeals Jump Dramatically

And now another serious problem facing the VAWhile there are clearly some doubters most people think that the backlog for disability adjudications has dropped dramatically. Indeed, this week the VA proudly announced that they had just adjudicated their 1,000,000th claim for this fiscal year. However, this is predictably leading to another backlog increase. There is now a backlog for pending appeals of denied claims… as well as increased delays in other claims matters.

One of the areas that have suffered while most of the VA’s focus has been on adjudicating initial disability claims is the simple job of changing the number of dependents that is covered by a claim. The VA’s own figures show that the number of claims to change the status of a dependent has risen from 35,734 at the start of 2012 to 191,464 on June 28 of this year.

As of June 28th the number of pending appeals has reached 279,435. This has been seen as a growing problem since 2012 when the VA’s Inspector General (IG) suggested that the VA "revise productivity standards" to ensure review officers get credit only for work that moves an appeal forward, according to the most recent IG report to Congress. That has not yet happened.

Laura Eskenazi, Principal Deputy Vice Chairman Board of Veterans' Appeals U.S. Department of Veterans Affairs and this the executive in charge of the Board of Veterans' Appeals, said appeals rates have held steady for nearly 20 years, but the total number has risen as more claims have been filed. "If the expectation is a short time frame [to get a decision on an appeal] that would require some trade-off in the due process," she said.

The average time for a denied claim to work its way through the VA’s appeals process shot up to more than 900 days last year After staying between 500 and 750 days for the past decade, what the VA refers to as its “appeals resolution time” hit 923 days in fiscal 2013. That is a 37% jump in one year, from 675 in fiscal 2012. The VA’s long time goal is for an appeal to take 400 days to resolve.

It should be remembered that veterans have a provision in our appeals process that almost no one else has. It permits all appellants (veterans, survivors or their representatives) to submit at any time in the appeal new evidence or information. That triggers a fresh review of the entire appeal. The Board of Veterans’ Appeals can grant, deny or remand the case to one of the VA’s regional offices for additional review. This of course slows appeals down but it is a terrific advantage for the veteran and his/her family.

C-123 Webmaster: It should also be noted that claims can take a year or more from a veteran already ill with cancer or heart disease to be approved, or denied. Submitted then to the BVA the issue can sit on somebody's desk for three or more years, and the veteran's cancer isn't going anywhere in the meantime and VA will continue to refuse to treat the illness unless the vet is eligible for some other reason or injury. Years pass with no pharmacy, no rehab, no prosthetics, no counseling, no pension, no medical care at all. Board of Veterans Appeals make sad reading as claim after claim is resolved in one way or another for the survivors because the veteran has died waiting for the VA.

Yale Law Announces C-123 Agent Orange Claims Report

Yale Law School posted their release of the C-123 Exposure Legal Brief on their web site today, making it available to veterans nationwide. Many, many thanks to Yale for this scholarly presentation of our case. We were exposed to Agent Orange. We should be treated for Agent Orange illnesses.

Once again, but its never enough...thanks to Dean Wishnie and his team!

All C-123 vets should get this to whoever is representing your disability claim. If you are managing your own claim, my suggestion is to attach it to a VA-21-4138 with your note as to the importance of this document. Tell the VA simply that Yale Law completed a laborious investigation of the C-123 Agent Orange exposure situation, and concluded that we were exposed. Exposure is the only requirement that a veteran who is not a Vietnam veteran needs to prove. This document, your Form 5s or other proof of duty aboard former spray aircraft, and the other supporting documents you can download from this blog should present a convincing argument.

VA will oppose anyway, having already informed us they have a policy forbidding C-123 claims as per Post Deployment Health and regardless of any law or proofs to the contrary. Having your proofs of exposure, and this legal brief, will at least make the rating official think twice and perhaps risk resisting orders to deny your claim. And having this in your claim will certainly prove telling at the Board of Veterans Appeals.

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.] 

C-123 Exposure Claims - The Effort Makes No Sense Any Longer

One thousand three hundred days.

That's the VA's wait between their blanket policy-driven illegal and automatic denial of every C-123 Agent Orange exposure claim and the hoped-for resolution finally offered by the Board of Veterans Appeals.

That means we're looking at over two years (720 days) for our claims' automatic denial, just for the privilege of then waiting nearly three years for a BVA to set things right at last...over five years wasted (2,080 days, or more.) After seven or so years there'll be a catch-up check, but that doesn't make up for seven years of denied VA medical care, no pharmacy, no rehab, no prosthetics, no dental or eye, nothing. Nothing. A catch-up check won't make up for seven years of denied life-saving medical care for a veteran, or for the financial ruin brought on a family waiting so long. So terribly long.

I don't know about the rest of you but this is crushing...so profoundly depressing I would need to look for the right, dark, hopeless words but they don't exist anyway.

We're in our mid-to-late '60s, so submitting an Agent Orange exposure claim now means in five to six years, thus we're past the average man's life expectancy, and perhaps eventually there may be a big brown envelope announcing a VA disability decision for the widow to open.

Six years is an impossibly long time for a sick vet to wait to get in front of a VA doctor. Thats a long time to wait for help with prescription expenses. That's terribly long time to suffer the financial impact of severe illness, denied all state and federal benefits due disabled veterans. Frankly, those years are years better spent focused on health and family issues. It is a very long time, and that's a skillfully managed part of the VA claims process. The Vietnam War vets call it "waiting for an army to die." Good point. Right on.

Should we give it up? I wish I had, two years ago. I had other stuff to do with my family.

Let's face it. The USAFSAM and HQ/AFMC people at Wright-Pat knew what they were doing in restricting all C-123K herbicide contamination information in their "official use only"(per the USAF Office of Environmental Law) secret file cabinet back in 1996. We never knew what we'd gone through flying the C-123Ks for a decade.

Then, in 2011, the VA beat us to the punch with their staff in VBA and VHA sneaking in that Society of Toxicology poster on "exposure," showing them ready to redefine law, medicine, science and ethics in their determination, ready to get rid of us.

As VBA Compensation and Pension Service told us, "Go somewhere else." As VHA (Dr Michael Peterson, Chief Consultant, Post-Deployment Health) told us, "We all die." VBA even ordered claims denied writing "TCDD has not been shown to cause harm." Amazing...Agent Orange is "harmless", so claims are denied. And besides, claims denied "because (non-existent) VA regulations do not permit" C-123 claims, so VA's Deputy Director Post Deployment Health orders C-123 vets barred even from Agent Orange Registry exams! (telecon w/Major W. Carter)

We innocently thought we'd show them truth in facts and figures, offer scientific and medical support from other federal agencies and our physicians, fill out their forms and sit back for good VA government staffers to do the right thing. Wrong.

We didn't understand the wall of prejudice we were to face...of VA executives willing to write deceptive answers to congressional leaders, of Air Force executives willing to deceive senators asking about aircraft contamination by answering that the aircraft were "safe in their present configuration," – which was smelted aluminum ingots, the fleet of C-123Ks having been destroyed as toxic waste two years earlier.

Little did we know the automatic reaction at 810 Vermont was not only "NO" but "HELL NO. No Way. Never. Not on my watch! Go elsewhere. Cannot permit!" Whatever their motivation is with denying Freedom of Information of requests and otherwise  obstructing our rights under the law isn't an issue.

The issue is that their instructions to the regional offices to deny all claims dooms us just as completely as if we'd never applied in the first place. Believe me, they wish we'd gone away years ago - their C-123 "final solution." Through our United States Senators, Secretary Shinseki promises us careful, individual evaluations, but then VA provides their rating officials boilerplate language to deny each and every claim, stating "Regulations do not permit us to concede exposure." And there are no such regulations, of course...just words VA enjoys typing to deny claims.

Deny, deny until they die. And die we do. Paul, Bob, General Mike, Doc Warner, Gabby, Jim, Mayleen, Lou, and all the others.

A veteran couldn't meet a better nurse or doctor than at the VA medical center. Praise God for each and every one of them, and tell the President the nation should be proud of these dedicated health professionals.

The rest of the VA bunch, those whose job it is to prevent veterans' claims, are not worth writing about. The hell with it. Let's just drop the misery of it.

Preventing claims is VBA's profession, Job One! They do it so very, very expertly, for all but the claims forced on them by law. Any wiggle room, any judgement call, any interpretation required means a denied claim and another VA victory. If laws and Title 38 can be ignored to deny claims...victory. If requirements spelled out in the Federal Register can be ignored to deny claims...victory, sweet victory for VA. And even worse for veterans, VA will ignore their own staff physicians, even if internationally recognized as Agent Orange researchers and professors of medicine as well as VA senior staff.

"Mission accomplished" to VBA means claim denied or a vet passing on while waiting for word. We can't win...they'll just keep obstructing and delaying until the last of us is dead. This is why VA employees draw their paychecks, and how their accomplishments are measured for performance bonuses.

VBA knows the longer they keep us from medical care the faster our demise due to lack of medical care. From their perspective, the sooner the better.

To VBA, a live veteran is a waste of space.

I'll say it again. The 1991 Agent Orange Act and Title 38 spell out that military herbicide exposed veterans will be granted service connection for Agent Orange-presumptive illnesses. The Federal Register of 8 May 2001 page 23166 details it further...exposed veterans will be treated the same as Vietnam War veterans. Exposure to military herbicides...the only proof a veteran need provide besides his medical diagnosis.

That's why VA pretends there is no exposure, and in doing so defies official conclusions that C-123 veterans have indeed been exposed...proofs from the NIH, CDC, EPA, US Public Health Service, USAF and others. VA does this by their own, in-house redefinition of "exposure," a definition adding the word "bioavailability" and an act challenged by the National Institutes of Health/National Toxicology Program's Dr. Linda Birnbaum and also by the CDC/Agency For Toxic Substances and Disease Registry.

These proofs from other agencies will spell success for C-123 claims once at the Board of Veterans Appeals...for the veterans who survive their cancers and heart conditions those extra three to five years!

Vets Die Waiting For Claim Decisions...situation worsening!

The day after Veterans Day, U.S. Army Staff Sgt. Luke Parrott walks through the rows of headstones in Section 60 where several of his friends and soldiers he served with are buried at Arlington National Cemetery November 12, 2012 in Arlington, Virginia. A veteran of the wars in Afghanistan and Iraq, Parrott was injured in an IED blast in Baghdad in 2005. Parrott spent time sitting and talking to the graves of the soldiers he knew. "It's as close as we can get to talking anymore," he said. (Chip Somodevilla/Getty)

TAKE A NUMBER

Number of Veterans Who Die Waiting for Benefits Claims Skyrockets

 - BY AARON GLANTZ

Over the last three years, the number of veterans dying before their claims are processed has skyrocketed, reports Aaron Glantz of the Center for Investigative Reporting.

After seven months of delay, the Department of Veterans Affairs finally approved World War II veteran James Alderson’s pension benefits in December 2012.

But it was not a cause for celebration or relief for Alderson, whose life’s work was the farm-supply store he founded near Chico, Calif., after returning home from the Battle of the Bulge.

The 89-year-old veteran had died three months earlier in a Yuba City nursing home.

“My father was a very proud person,” Alderson’s son, Kale, said. “Whenever I saw him, he would ask if I’d heard from the V.A. and whether his money would hold up. It really took a toll on him.”

The V.A.’s inability to pay benefits to veterans before they die is increasingly common, according to data obtained by the Center for Investigative Reporting. The data reveals, for the first time, that long wait times are contributing to tens of thousands of veterans being approved for disability benefits and pensions only after it is too late for the money to help them.

In the fiscal year that ended in September, the agency paid $437 million in retroactive benefits to the survivors of nearly 19,500 veterans who died waiting. The figures represent a dramatic increase from three years earlier, when the widows, parents and children of fewer than 6,400 veterans were paid $7.9 million on claims filed before their loved one’s death. 

These veterans range from World War II veterans who die of natural causes without their pensions to Iraq War veterans who commit suicide after their disability claims for post-traumatic stress disorder are denied.

The ranks of survivors waiting for these benefits also have surged, from fewer than 3,000 in December 2009 to nearly 13,000 this month.

Rep. Jeff Miller, R-Fla., chairman of the House Committee on Veterans’ Affairs, said the data confirmed the worst fears of many veterans and members of Congress.

“The common refrain we hear from many veterans is, ‘Delay, deny, wait till I die,’” said Miller, who called the burgeoning backlog of benefits claims a “national embarrassment.”

Nationwide, about 900,000 veterans and their families have been waiting about nine months for a decision on their claims, with those in America’s major urban areas waiting the longest. As of October, the most recent month for which numbers are available, the average wait time for a veteran was 15 months in Chicago, 16 months in New York and a year and a half in Los Angeles.

But in a conference call with the Center for Investigative Reporting, V.A. officials said that while the long delays generally were unacceptable, the growth in posthumous payments was not disturbing.

The ranks of survivors waiting for these benefits also have surged, from fewer than 3,000 in December 2009 to nearly 13,000 in December 2012. Now it is even worse!

“It’s a good thing that the V.A. pays benefits to honor the service of veterans and the sacrifices of their family members despite the fact that a veteran has unfortunately died,” said Dave McLenachen, director of the agency’s pension and fiduciary service.

Some veterans' advocates say the number of survivors being approved for retroactive payments represents a fraction of the veterans who die waiting because grieving families must file paperwork with the agency to keep a claim from expiring with the veteran.

“You’re just so exhausted and drained with the grief of losing a loved one that sometimes it’s hard just to wake up in the morning, let alone navigate a complicated bureaucracy,” said Bonnie Carroll, founder of the Washington-based nonprofit Tragedy Assistance Program for Survivors.

Delays tied to Agent Orange

In November, more than a year after Vietnam veteran John Conrad died of leukemia, the V.A. sent his widow a letter acknowledging his cancer was caused by exposure to the toxic defoliant Agent Orange.

The decision marked a reversal for the agency, which had denied Conrad’s claim for disability benefits for three years while the former Army specialist was still alive. The denials had come despite supporting medical opinions from a series of doctors, including the V.A.’s own oncologist.  

“We went through our savings and our retirement money. And then, after he died, they said they made a mistake and sent a check for $79,000,” his widow, Linda Conrad, said in an interview at her home outside Phoenix. 

By the time the V.A. reversed itself, the family home was in foreclosure. Linda Conrad, who had quit her job as a paralegal to care for her husband during his last days, found her efforts to secure a new job thwarted by the recession.

Yet, in an interview, the VA deemed John Conrad’s saga a success, because the more experienced claims processors who handled Conrad’s claim after his death had the authority to reinterpret the medical evidence.

“That’s the way it’s supposed to work,” said Brad Flohr, assistant director for policy of the V.A.’s compensation service.

V.A. officials say the agency’s changing stance on Agent Orange claims is a major catalyst for the rise in posthumous payments. In 2010, Veterans Affairs Secretary Eric Shinseki issued a ruling granting benefits to 158,000 Vietnam veterans who suffered from ischemic heart disease, Parkinson’s disease. and two types of cancer—neither the kind of leukemia that killed John Conrad—that the agency previously had denied were caused by Agent Orange.

Officials said that decision, a response to a federal court ruling in Northern California, was responsible for about half of the payouts in 2012.

McLenachen attributed the threefold increase in the number of veterans who died awaiting disability and pension benefits to a different phenomenon: a 2008 law that streamlined the ability for survivors to petition the agency for compensation instead of forcing them to file a new claim.

That explanation doesn’t resonate with members of Congress who have been increasingly frustrated with the delays veterans face in obtaining benefits.

“It’s not plausible,” said Rep. Jerry McNerney, a California Democrat and ranking member of the House subcommittee that oversees the VA’s benefits bureaucracy. Even under the old system, McNerney said, survivors regularly filed claims for benefits that veterans had requested before they died.

Errors compound delays

Veteran advocates and family members of veterans who died waiting accuse the VA of callous indifference in denying legitimate benefits claims and deluging families with paperwork even as loved ones slip away. Chronic mistakes add to a feeling of abandonment.

A Center for Investigative Reporting analysis of 18 reports published this year by the V.A.’s inspector general revealed auditors found mistakes in more than 1 in 3 high-profile claims they reviewed. In 2011, the Board of Veterans Appeals found errors in 73 percent of cases it decided, according to the board’s annual report.

“The V.A. has a problem with errors and that lengthens the process and increases the chance that a veteran will die waiting,” said Bart Stichman, co-director of the National Veterans Legal Services Program, a Washington-based nonprofit that provides legal assistance to veterans and their families.

Iraq War veteran Scott Eiswert “gave up on life” after receiving a February 2008 letter from the V.A. denying his claim for post-traumatic stress disorder for the third time, according to his widow, Tracy Eiswert. Three months later, the 31-year-old Tennessee National Guardsman shot himself in the head.

Then, in August 2008, the VA reversed itself, sending Tracy Eiswert a letter stating that it “was clearly and unmistakably in error” for failing to grant her husband’s disability claim. The agency sent a check for more than $10,000 to cover the disability benefits Scott Eiswert should have received while he was alive. The VA also deemed his suicide related to his military service, entitling his widow to a $1,195 monthly survivor’s benefit.

“I was relieved to get the check, but if they would have done their job and given him the help he needed immediately, maybe this wouldn’t have happened,” Tracy Eiswert said.

This story was produced by the nonprofit Center for Investigative Reporting. Learn more at cironline.org. Contact the reporter at aglantz@cironline.org.