News-Record.com

(The following column appeared in the Oct. 29, 2006, Ideas section of the News & Record)

In early September, News & Record reporter Lex Alexander, who has written articles about problems veterans face when filing benefits claims, sent 57 basic questions about the claims process to the Department of Veterans Affairs. The VA has failed to respond to Alexander’s questions. These questions, all of which are posted in the archives section of Alexander’s Weblog (http://blog.news-record.com/staff/lexblog/), address the composition of VA rating boards and the adjudication process as well as of the Board of Veterans Appeals.

Because of the VA’s lack of response, I have decided to help veterans by explaining the appeals process and the problems veterans face with it.

I was a senior appellate attorney and associate special assistant in the appellate litigation staff group of the VA General Counsel’s Office from 1990 to 1995. I also worked for 11 years thereafter litigating issues against the VA in the Everett & Everett law firm in Durham.

This experience has helped me develop a keen knowledge of the inner workings of the VA, especially from the regional level up to and including the Board of Veterans Appeals.

The $10 limit

Because of a $10 limitation on attorneys’ fees for helping with veterans’ initial claims — a limitation that dates back to the Civil War! — veterans usually can’t obtain legal counsel initially. For example, for nearly two years I was the only attorney registered with the N.C. Bar Association’s Lawyer Referral Service to handle initial veterans claims. I did so primarily as a public service and because I had acquired unique experience with veterans claims while I served in Washington in the VA’s general counsel office.

Veterans need the support of permanent legal representation at the initial claims adjudication level. That attorneys can only receive compensation after the VA has rendered a final Board of Veterans Appeals decision creates a vast void. There is great need for immediate long-term assistance for veterans through a permanent veterans law clinic, such as the one that will open at the N.C. Central School of Law in January 2007.

Veterans’ problems are further increased because oftentimes denials by the Board of Veterans Appeals are based on a defect made because the claim was not initially processed by an attorney. Thus, frequently the rights of veterans are lost because no legal assistance was available at the beginning of the claims adjudication process.

The average time for an initial claim for compensation and pension to be processed and a final Board of Veterans Appeals decision rendered is four to seven years. Oftentimes an elderly veteran will die before his/her claim has been fully adjudicated. VA rating boards are slow and lackadaisical in processing claims for benefits because of heavy caseloads caused by inadequate staffing, poor supervision and inexperience among rating board members. Oftentimes rating board employees are hired right of high school. Many have little or no college and little or no medico-legal, military or pertinent work experience.

Adversarial climate

Normally claims are handled by rating boards made up of one or two VA employees, and a great number of these claims are handled by junior level employees who are evaluated with an emphasis on productivity and quantity of decisions produced, rather than quality. Often, haste causes crucial items in the veteran’s claims folder — items that would favor granting a claim — to be overlooked. Furthermore, the VA’s statutorily mandated affirmative duty to assist the veteran in developing his claim is often overlooked.

All of this makes for a veterans claims adjudication process that is bogged down and adversarial.

Regional rating boards are to review the evidence contained in the veteran’s file, assist the veteran in developing his/her claim and to render a decision. Under law, rating boards must give veterans the benefit of the doubt when deciding whether current disabilities are connected to injuries and incidents that occurred during military service.

But many decisions do not apply the benefit of the doubt standard or, if it is applied, it is done in an inappropriate fashion. The VA will fail to fully develop the medical evidence and will instead base its decision on medical evidence in the record favorable toward a denial. Sometimes the VA rating board will fail to assist the veteran in obtaining appropriate medical records and military records (many of which are stored in Greenbelt, Md.), buddy statements, unit reports and any other information that might assist the veteran in developing his/her claim.

The VA rating boards also often fail to examine the veteran’s claims folder for claims not raised by the veteran but which exist and must be evaluated by the VA rating boards in light of evidence already of record. The VA also must inform the veteran of what information is necessary to make his claim for benefits sufficient.

I have noticed that treating physician statements are not given the weight and authority they should be given; instead, the VA will rely on VA physicians and doctors under contract with the VA (claiming that they are “independent medical advisors”). These VA physicians and doctors under contract oftentimes examine the veteran in a cursory manner, sometimes within a matter of minutes, and thereafter render an allegedly “independent medical opinion” stating that the veteran’s current disabilities are not related to injuries sustained in service. Sometimes the VA physicians who are under contract are not certified by the American Board of Medical Specialists in the areas for which the veteran claims disability.

When a VA examination is cursory, lasts only minutes and is done by a physician not ABMS board certified in the area for which the veteran claims disability, it is virtually impossible for that examination to fairly serve as a basis to deny the veteran his claim. Such “independent VA examinations” represent both factual and legal error and are an injustice to the veteran. In many instances, the VA rating board will offer no explanation for why it ignored the veteran’s physician’s opinion supporting the grant of the veteran’s claim and only considered the negative “independent medical opinion” of the VA physician.

Appeal process

Veterans dissatisfied with the regional VA rating decision can file a substantive appeal with the Board of Veterans Appeals in Washington. Veterans who appeal must file a Notice of Disagreement with their regional office within one year of the VA rating decision along with a VA Form 9.

The Board of Veterans Appeals is divided into four decision teams divided up by geography. Each team is comprised of at least two veterans law judges, staff attorneys and clerical staff. The BVA consists of 14 veterans law judges (including two chief veterans law judges) and at least 55-60 staff attorneys, some of whom have 20-25 years of legal experience. Each veterans law judge is assigned four or five staff attorneys who have varying degrees of experience. The duty of a staff attorney is to review the claim and draft a decision for a veterans law judge to proof and sign.

The Board of Veterans Appeals reviews the rating decision rendered at the regional office level looking for errors in fact or law. Because it is not a finder of fact, the board must rely on the record established at the rating board level. Thus, frequently the rights of veterans are lost because no legal assistance was available initially.
The Board of Veterans Appeals allowance rate between FY 1982 and FY 1991 ranged between 12.8 and 14.4 percent. That rate rose with judicial review to 20.8 percent in 2005. The remand rate back to the VA regional office is much higher. It was as high as 48.8 percent after passage of the Veterans Claims Assistance act of 2000, which broadened the VA’s affirmative duty to assist the veteran in the development of his claim. But remanding back to the VA regional office causes even more delay. In most instances the whole process will be delayed for months, if not years, if such an event occurs.

If after filing an appeal with the Board of Veterans Appeals, the veteran or his lay advocate submits a newly discovered material piece of evidence, the veteran will lose any back benefits he might have received had the claim been adjudicated in his favor solely on the basis of evidence presented when the initial claim was filed. Of course, had the $10 limitation fee not essentially barred the veteran from obtaining legal assistance in preparing the initial claim, key material that weighed in the veteran’s favor probably would have been presented initially.

Indeed, veterans are at a distinct disadvantage until after a final decision is rendered by the Board of Veterans Appeals. It is only after that time that they can hire an attorney for a reasonable fee.

It is my hope that the student involvement in a permanent veterans law clinic will help veterans seeking legal assistance with their claims.

Craig M. Kabatchnick is an attorney who lives in Greensboro. Reach him at (336) 456-3751 or (919) 382-2800.

UPDATE: I've sent another e-mail to the VA spokesman with whom I've been dealing. It linked to this piece as well as to our Oct. 8 article on veteran Butch Kabatchnick which raises many of these issues. And it reminded him of his promise, on behalf of the department, to answer these questions for the public.

We'll see what happens next.

UPDATE (Oct. 31): VA spokesman Marcus Wilson called earlier this afternoon to say that, yes indeed, those answers are still being worked on and are definitely coming. He says he has called around to the various people to whom he had to refer the questions and reminded them that we're still waiting for answers.