Whenever the government tells us that they are improving something, we start to get a little wary. My first instinct is to go and read as much as possible about the improvements to see where the catch is. It is a sad state of affairs we have become so cynical in our world. However, the actions of our politicians over the past several decades have perpetuated our cynicism. Therefore, when I got an email about the president signing the new Veteran’s Appeals Improvement and Modernization bill, I had to go and read what it was all about.
The first article I read excited me. It states that veterans with a decision would have a new process for appealing the decision. A veteran whose claim is denied can now take their appeal directly to the Board of Veteran’s Appeals, bypassing the normal Regional Office appeal level. There is also a new program coming, according to VA Secretary David Shulkin that will process “decision ready claims” within 30 days of filing. WOW! Sounds too good to be true, doesn’t it? Well, it is. Let’s review the main aspects of this bill and how it affects Veterans.
Deciding “Decision Ready Claims” in 30 days?
This is a great plan, but one that has already been tried. The “Fully Developed Claim” or FDC program was designed to allow veterans to file claims with all the evidence needed for the claim with the goal of deciding them within 125 days. This allowed the VA to make a decision without having to develop evidence to support the veteran’s claim. If a claim did not have all the evidence, the VA would still develop the claim, but not as an FDC claim. However, FDC claims, according to current VA data, still take an average of 110 days for a decision, which was only 9 days shorter than a non-FDC claim as of FY 2017. So, what is the difference between an FDC and a “decision ready claim?” We will find out in the next month when VA Secretary Shulkin is expecting to reveal this new plan.
Appealing directly to the BVA is good, isn’t it?
The good news is as stated above. There will be new options for filing a claim, allowing veterans to either appeal at the Regional Office level with the traditional appeals path or the DRO appeals path. These are already in existence. The new appeal path will be taking the appeal directly to the BVA level, something that before Veteran’s had to wait until an appeal was decided at the Regional Office level before they could pursue. This sounds like great news, but this just moves the backlog from one area of the Department of Veteran’s Affairs to another. It does not guarantee that the claims will be decided any faster. In fact, it may actually slow the process down because normally the BVA only sees. According to the VA’s website, the BVA is currently deciding cases up to December 2013……yes, 2013. Cases that are over 4 years old are being decided at the BVA level in the Fall of 2017. And, the backlog at the BVA increased in FY 2015 by over 14,000 cases. How is this going to speed things up? Another question that will be answered after this bill goes into effect in 18 months.
Currently, under the law veterans are afforded “duty to assist” by the VA. This means that the VA, by law, must assist the veteran in developing his or her case and the VA benefits system is supposed to be non-adversarial, in other words, it is supposed to be supporting the veteran’s claim, not working against the veteran. We know this isn’t always the case, but by law, this is what is supposed to happen. The way this works is that the VA is supposed to help the veteran obtain records such as service records, VA medical records, and private medical and social security records. This is very beneficial to the veteran because often these records are very difficult and costly to obtain. Many organizations provide them to the VA at no cost because they are supporting a veteran’s benefits claim (they often don’t do this just for a veteran attempting to obtain the same records for the same reason). In addition, the VA may have resources that are difficult to obtain by the public. Often attorneys have to hire researchers or private detectives to find information such as deck logs, service records, and corroborating evidence. Another way the VA provides “duty to assist” is by providing C&P exams when a claim is filed. This exam is often used to determine or verify the diagnosis or the severity of a claim. Duty to assist is also found when a veteran engages representation, with either a VSO or an attorney, and that representative requests copies of the evidence that the VA has used to make a decision about a claim.
But, Veterans will still have Due Process, right?
According to the bill, veterans will no longer be afforded duty to assist once an appeal is filed. Now, this may not seem like a major problem at first glance, but remember, veterans cannot hire representation until after they have received a decision, so any attorneys hired would not have discovery rights. They will have to obtain information from the VA just like everyone else, through Freedom of Information Act requests, which often take over a year for the VA to fulfill. This makes the appeal much more difficult for the attorney. It makes it downright impossible for a veteran trying to appeal on his own without a team of researchers or evidence experts at his disposal.
Veterans often file an initial claim without any evidence and rely on the VA to obtain that evidence for them. The potential for the VA to deny the initial claim based on lack of supporting evidence is very high since it is already the main reason claims the VA denies claims. If the VA pushes decides the initial claim without all of the supporting evidence available, the veteran now has to obtain the evidence on their own. Losing duty to assist at the appeal level denies them any chances of the VA assisting them in retrieving service or other records they have not gotten during the initial claim.
Veterans can get extensions during the initial claim period to submit additional evidence, but there are no guarantees after a certain period that the VA will not decide the claim. The main message here is for the veteran to get the VA to gather as much evidence as possible PRIOR to the initial decision of the claim as possible. However, this also means that if there is not much more evidence, the chances of an appeal being awarded decrease significantly.
This passing of this bill does not sound like legislation that supports our veterans. These changes will make it easier for the VA to deny claims and makes a system that is already difficult to navigate even more so. Veterans who are already frustrated and feel that the VA sets them up for failure will feel even more let down by a system that promised to cash in those checks they wrote for their lives to defend the United States.
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