News-Record.com

BEST CARE ANYWHERE: Why VA Health Care Is Better Than Yours. By Phillip Longman. PoliPointPress. 136 pages. $14.95.

It's easy for a survivor to develop a jaundiced view of the American health-care system when his wife dies of cancer. It's especially easy when the period before her death was one long agony of bouncing from doctor to doctor, carrying pound after pound of paperwork
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But suppose that same survivor has written a book on the virtues of consumer choice in health care. Suppose he is then commissioned by one of the nation's leading business magazines to do an expose on the Department of Veterans Affairs' health-care system. And then suppose that his reporting turns him so far in the other direction -- from both the magazine's perspective and from his own experience -- that the magazine kills the assignment.

Perhaps we should sit up and take notice.

That has been the experience of journalist Phillip Longman. His "Best Care Anywhere" paints the big picture of how the VA's health care system is, by objective standards, the nation's best; how it got that way; and how its lessons might be put to use nationwide, using the free-market principles its critics claim to use in dismissing it as "socialized medicine."

Given the way the VA has been criticized in earlier books such as Longman's first, and mocked in such movies as "Born on the Fourth of July" and "Article 99," Longman's claim borders on unbelievable. I didn't believe it. So have a look:

• New England Journal of Medicine, May 29, 2003: VA "significantly" tops fee-for-service Medicare in 11 criteria out of 11.


• Annals of Internal Medicine, 2004: VA's diabetes care tops commercial managed-care systems in seven of seven criteria for diabetes care.


• RAND Corp. study, 2004: VA outperforms all other American health-care sectors in 294 areas of patient care.


• Medical Care, 2006: Patients in Medicare's Advantage Program had "significantly higher" mortality than corresponding VA patients.


• American Journal of Managed Care, 2004: VA topped both Medicare and best available non-Medicare programs in 18 of 18 criteria.

For one thing, a computer case-management program created and updated over the years by the very people who care for patients. That software makes possible -- even likely -- almost perfect continuity of care. That technological edge, in turn, provides lower mortality through better diagnosis and treatment of acute and chronic conditions.

Moreover, the VA health system stresses strict adherence to the results of disinterested research (and, sometimes, alerts from the software when those protocols aren't followed).
Protocols for patient care have been developed over many years based on observance of real-world outcomes, not by the profit motive or perverse market incentives. The protocols range from complicated treatment right on down to ensuring that heart-attack patients take an aspirin regularly.

And here's one place where the free market comes at you from the opposite direction: That emphasis on quality care leads to lower costs because of better outcomes.

To be sure, the VA has benefited from "luck" in its improvement: Among its aging veteran population, chronic problems such as heart disease and diabetes, the conditions most amenable to preventative and managed (treatment, not funding) care, are those most responsive to its approach.

But those trends also are growing among Americans in general, and other health-care systems haven't responded as well.

So if the VA approach is so good, why isn't the whole country using it?

For one thing, inserting any large government bureaucracy (200,000 or so people in the VA's case) into health care in any way is dismissed by politicians with the scare phrase "socialized medicine" without any examination of the facts.

Longman badly underestimates how hard overcoming this problem would be. But the whole country wouldn't have to adopt it for the whole country to benefit, he says. Even if introduced only in pilot areas such as Massachusetts, which recently began requiring its residents to purchase some type of health insurance, the quality of the VA system (or systems that strictly emulate it) would improve health care across the board. Other health-care systems would have to adapt and change to remain competitive. And if these systems make relevant statistics available, or at least indicated whether their doctors or hospitals are following the VA's protocols, we'd actually have the sort of informed consumer choice that Longman advocated in his first book 11 years ago.

Longman might not be right in every detail. Recent disclosures by The Charlotte Observer of inadequate patient care, leading to deaths at the Salisbury VA center, make clear that the system is not perfect. And lack of money can hamper care.

But the Salisbury deaths need to be held up against the context of the tens of thousands who die each year in the United States of hospital-acquired infections. Longman's evidence that the VA system works well overall is compelling (and, on the micro level, is consistent with what veterans have told me anecdotally about both the Salisbury and the Durham VA hospitals, both on and off the record). His proposals deserve a serious hearing at all levels of government and the health-care industry, and until they get one, anyone screaming "socialized medicine" should be whacked in the head with a catheter.

I've read and written a draft review of "Best Care Anywhere: Why VA Health Care Is Better Than Yours," by Phillip Longman. I do not know yet when the review will run. When it does, I'll post it here for comments.

Meanwhile, what a week it has been for veterans issues. I'm working on a roundup, and perhaps a forward look, for Sunday's paper.

You asked, you get: A one-stop page for all our coverage of veterans' issues since we began examining the disability-compensation this past September and concluding with this morning's article about an undersecretary's clash with reality.

The real URL is awful, but this one works just as well AND is easier to remember: www.news-record.com/veterans

I have to update it by hand (which is fine as long as the computer does what I ask it to do the first time rather than the sixth or eighth time), but I'll try to keep it current.

In researching the aforementioned article, I came across a paper published in 2004 in the New England Journal of Medicine that analyzed rates of possible mental disorders for returning servicemembers. (I would hotlink except that the URL is about eight lines long, so go here, type in the search term "stigma" and the precise date of July 1, 2004. You'll get more than one response, but the one you're looking for will be obvious from the headline.)

Rates for major depression, generalized anxiety, or PTSD were significantly higher after duty in Iraq (15.6 to 17.1 percent) than in Afghanistan (11.2 percent). As a control, I guess, the researchers also assessed an Army unit before its deployment to Iraq; 9.3 percent met the criteria. Without spending a heck of a lot of time searching, I found one paper online suggesting that the incidence of PTSD in the general population is around 9 percent to start with and another paper that, citing a 1987 source, suggested the general incidence is about 1 percent overall and about 5 percent in a given year. Both sources predate 9/11, which might well have boosted the incidence at least temporarily.

I talked a little bit here about why there might be some PTSD in the general population of people who haven't been deployed to Iraq (or even served in the military). I suspect the severe and ongoing nature of what one experiences and witnesses in combat probably makes the effects on servicemembers who go through that experience more severe and longer-lasting, although I haven' t reviewed research literature. That's the impression of several veterans with whom I've talked.

But even assuming that the general incidence of PTSD in Americans is as high as 9 percent (could be; I'm skeptical), then service in Iraq appears to be doubling the rate right off the plane. Follow-up research will be required because PTSD often doesn't show up for months or years.

Is the country ready? Are its hospitals, outpatient clinics and mental-health facilities ready? Are we ready?

And if we're not, how do we get that way? If Abraham Lincoln is to be believed, we owe our returning servicemembers an answer.

Earlier this month, Secretary of Veterans Affairs Jim Nicholson ordered the more than 1,400 VA hospitals and other facilities to report back by March 14 on the conditions of their facilities. The order came in the wake of reporting in The Washington Post, starting in February, on horrendous conditions in some portions of Walter Reed Army Hospital. Walter Reed is run by the Department of Defense, not the VA, but Nicholson said he wanted to be proactive.

Well, on Wednesday, the VA released its findings. More than 1,000 problems were reported. That's roughly 1.4 per facility, a figure that probably is meaningless in that it doesn't distinguish between hospitals and clinics, between old facilities and new, and so forth.

Some of the problems were serious: infestations of vermin; bacteria from urine and/or feces; fixtures such as certain types of shower heads in mental-health facilities, including one in Fayetteville, that would make suicide easier. But the department found that 90 percent or more of the problems found were minor, were simply a matter of buildings outliving the codes under which they had been built, or represented long-term wear-and-tear issues rather than more serious problems or outright neglect.

(I visited the Greensboro Vet Center, a mental-health facility, this past week. I was there to conduct an interview for an upcoming story on post-traumatic stress disorder, not an inspection. But as I recall, the facilities appeared neat, clean and organized.)

The problems and conditions reported by the VA were, in turn, self-reported by the facilities, so it's not clear how reliable the numbers and characterizations are. But whether they're reliable or understated, I suspect that some serious problems are now getting attention they previously weren't getting.

I'm not the first to say this because I'm not the first to hear about it from veterans, but Americans wouldn't have to be getting a crash course on governmental care for service members and veterans, particularly for those with disabilities, if that care had been provided all along.

I started writing about problems in the system six months ago, which makes me a rank newcomer on this subject. The problems go back years. We're just one newspaper, not based in the media capitals of New York and Washington. Although our Web site reaches a lot of nonlocal people, the VA has been content to ignore our questions up 'til now. So it took a series by The Washington Post to get people, including other journalists, off their feet. At least the problem is now the flavor of the week for journalists, and perhaps that will lead to real oversight by Congress and, in turn, the true care for service members and veterans that their country has promised them since Lincoln, if not since Washington.

I've got another story up today, focusing on some of the most recent information about problems with the VA's benefits system. I'm trying to follow up for Friday's paper with an article about possible solutions (some coming from the same people who testified about problems.)

Here's the thing about the suggestions so far: Not one of them is new. All of them have been suggested, in more or less the same form, by the Government Accountability Office, veterans service organizations and other advocates, including unaffiliated veterans themselves. Moreover, the VA, according to some of these same reports, has given some of these suggestions only lip service or, in the case of seeking more money from Congress, actually has been rebuffed for political reasons.

But now we get a chance to see what happens when ignorance is no longer an excuse.

I've got another story today on veterans' problems in dealing wth the government. This one focuses on problems primarily created by government -- lack of money for health care. The executive branch (the Department of Veterans Affairs, which auditors say is marching to the White House beat) doesn't ask for enough money, and while Congress gives it more than it asks for, it still doesn't give the VA enough.

The U.S. has long praised its war veterans but failed to care for them. The history goes from World War I veterans, whose 1932 march on Washington was put down by future war heroes Douglas MacArthur and George Patton, to Operation Iraqi Freedom veterans who wait weeks or months for services.

Unfortunately for both Congress and the president, a perfect storm of issues and the power of the Internet threaten to lay bare the collapse of care and make information about it available to Americans as never before. A few examples:

• The commander of Walter Reed Army Medical Center and the secretary of the Army lost their jobs this past week after The Washington Post reported on poor conditions there.


• Veterans Affairs' backlog of disability claims approaches 400,000 despite repeated warnings dating back years.


• Inadequate VA health care spending means long waits for service even as growing numbers of Iraq and Afghanistan veterans return with wounds. That number is almost 24,000 as of this past week. Many of the returning wounded are hurt severely enough to require long-term or permanent care.


• Up to a third of the servicemen and women who have fought in Iraq, particularly from National Guard and Reserve units, will develop post-traumatic stress disorder.

I've got a short roundup of info sources and other coverage on just how bad the system that cares for our current and former service people has gotten -- and, in the Internet age, how widely that information can be spread and shared: For some reason, it didn't make it online, but I'll see if I can post it here later this morning

• Links to the Washington Post's coverage of problems at Walter Reed Army Medical Center.
• A Newsweek overview of systemic problems.
• The Independent Budget, a detailed annual recommendation to Congress of funding for veterans needs prepared by a coalition of veterans service organizations.
• Data on pending benefits claims, in spreadsheet form and updated weekly.
• ABC News' report on the VA’s ability to care for patients with traumatic brain injuries.
• An award winning McClatchy (formerly Knight Ridder) series on problems in the VA.

One other thing. Regarding the recently uncovered problems at Walter Reed Army Medical Center, and in particular to a question from Chris Wallace about the firing of the Walter Reed commander and the Secretary of the Army, Fox News anchor Brit Hume said this on Sunday (and if you don't believe me, by all means follow the link and watch for yourself). My comments are in italics.

I think it tells you a lot about the effect of the last election and the political atmosphere in Washington. This is an administration which is known or had been known for sticking by people even when they were embattled.

Well, yes, the administration had been known for sticking with people even when they'd made major mistakes ... and Hume seems to be implying that letting our injured returning service people and their families live, and try to recover, in such squalor is a POLITICAL problem that would not have arisen had the Democrats not taken over Congress in the 2006 elections, and not a substantive problem of neglect documented as having gone back years.

The idea that conditions at Walter Reed hospital, a hospital that is on its way out of business, had deteriorated, that’s probably one of the reasons they wanted to put it out of business.

Conditions "had deteriorated." Note the phrasing; it implies that the deterioration just happened, that, despite documented complaints and warnings going back years, no one is responsible and that, if anything, this was why the administration was trying to close the place -- and, Hume implies, bore NO responsibility for the quality of conditions in the meantime.

This is unfortunate. It looks terrible, which is the problem. The problem is that it looks as if this administration, which has sent troops into harm's way, is now neglecting them when they're injured and need care and help.

No, the fact that it LOOKS TERRIBLE isn't the problem. The fact that it IS terrible is the problem. The administration HAS neglected wounded personnel and veterans (although in many cases the neglect of older veterans goes back decades and is not exclusive to this administration). Various aspects of that fact have been reported here in the N&R and by other news organizations in Washington and around the country. This is not a debate with a range of opinions. This is a set of facts that journalists and politicians alike can address honestly or not.

But make no mistake about it, this was a -- there was a potential political firestorm on Capitol Hill began to brew about this. The administration did what it did to try to get it over with, and it may well have succeeded.

Again with the "political" argument. This isn't political; it's a demonstrable breach of the country's duty to its active-duty, Reserve and National Guard service people and its veterans, and the burden of proof is on anyone who wants to claim otherwise.

UPDATE, March 6: As some of you know, I have a nephew who is a Marine. I learned this weekend that in a couple of months his unit will be deployed to the Middle East for one year. Not having spoken directly with him, I know no more than what I've told you.

I've informed the editors above me up through JR, and I'm informing you, not because I think my writing about veterans' issues will create an actual conflict of interest but more in the interest of full disclosure, transparency and following the no-surprises rule. So far, my bosses have agreed with me. Should that change, they and/or I will let you know.

UPDATE, March 6: This doesn't apply directly to the VA's funding problems, but it's an issue with respect to the Walter Reed case that I don't think has gotten a lot of attention.

In early 2006, many of the services at Reed were outsourced to a private contractor. The CEO, when he was with Halliburton, had to testify before Congress in 2004 about overcharges for fuel and troop support in the Middle East. The company poorly in ice delivery and other services after Hurricane Katrina.

If these claims are borne out, and the early evidence suggests they will be, then we have a couple of market failures here.

Certainly, cases exist in which privatizing government services makes sense in market terms, and many already exist on the micro level -- getting office supplies, to use a mundane example. Caring for wounded soldiers and providing support for care they receive, however, is almost certainly not one of them: It's not as if many hospitals are competing for the soldiers' business or as if soldiers are in any shape to make competent, informed decisions about from whom they will get their care and the support that care requires.

Moreover, because providing those services is, realistically, the almost exclusive purview of the government, it's a little hard to imagine a real-world scenario in which corporations could compete for the government's business in any meaningful fashion. Accordingly, despite calling it "privatization," what we got here wasn't the market at work, but monopoly -- stemming, it would seem, from political patronage.

Looked at from that point of view, the stacking of the Walter Reed story and the Katrina story on the front page of today's paper makes a little more sense: They have more in common than meets the eye.

Please read this story in Sunday's Washington Post about Walter Reed Army Hospital.

This story raises a complicated set of issues that would be very easy to misunderstand.

While the hospital is a place of scrubbed-down order and daily miracles, with medical advances saving more soldiers than ever, the outpatients in the Other Walter Reed encounter a messy bureaucratic battlefield nearly as chaotic as the real battlefields they faced overseas.

On the worst days, soldiers say they feel like they are living a chapter of "Catch-22." The wounded manage other wounded. Soldiers dealing with psychological disorders of their own have been put in charge of others at risk of suicide.

Disengaged clerks, unqualified platoon sergeants and overworked case managers fumble with simple needs: feeding soldiers' families who are close to poverty, replacing a uniform ripped off by medics in the desert sand or helping a brain-damaged soldier remember his next appointment.

"We've done our duty. We fought the war. We came home wounded. Fine. But whoever the people are back here who are supposed to give us the easy transition should be doing it," said Marine Sgt. Ryan Groves, 26, an amputee who lived at Walter Reed for 16 months. "We don't know what to do. The people who are supposed to know don't have the answers. It's a nonstop process of stalling."

To be scrupulously fair, none -- repeat, none -- of the dozens of veterans I've talked to since beginning reporting on veterans issues in September has complained about the skill or the dedication of the staff at the two VA facilities with which they most often interact, the hospitals at Salisbury and Durham. Not even anonymously.

Some have, however, expressed concern about whether those facilities are getting the financial and administrative support those units need to serve our veterans the way they need and deserve to be served. It appears the same concerns are warranted for the Other Walter Reed.

UPDATE: It's a series, and another installment is here. Hat tip to my colleague Robert Bell for the heads-up.

UPDATE: The head of Walter Reed, Maj. Gen. George W. Weightman, says the Post is wrong, lying or both. Well, anything's possible. Really. I'm not being snarky here.

But I'm also not being snarky when I suggest that there are at least two other possible explanations, poor administration or failure to secure adequate resources, either of which fits better with Occam's razor than does Weightman's version of events. Meanwhile, I'm awaiting more info.

I posted recently about missing/stolen VA laptops containing records of thousands of veterans, most of them unencrypted.

At 6:45 p.m. Friday -- i.e., after most reporters on the East Coast, including yours truly, had gone home for the weekend, this story moved on the Associated Press wire:

WASHINGTON (AP) _ Veterans Affairs Secretary Jim Nicholson has suspended activities at seven specialized research centers [none in N.C. -- Lex] across the country after an unprotected computer hard drive disappeared from one of the facilities in Alabama last month.

In an internal memo obtained by The Associated Press, Nicholson called the department's latest data breach ''tragic'' and ordered the VA's Research Enhancement Award Programs to shut down until they are certified as meeting security standards.

The research centers focus on studies involving large amounts of data. The center in Birmingham, called the Deep South Center on Effectiveness, collects data for improving quality of care.

Writing to VA's top management on Thursday, Nicholson also said the department would begin unannounced inspections at VA sites nationwide.

''It is now clear to me that there are still too many VA employees, both in senior positions and elsewhere, who either still do not comprehend the seriousness of this issue, or who consciously disregard its seriousness,'' he wrote.

Nicholson has come under sharp criticism on Capitol Hill in the past year over a series of computer security failures that put sensitive personal information for millions of veterans at risk.

In the latest incident, a backup hard drive containing data such as Social Security numbers for up to 1.8 million veterans and physicians was reported missing Jan. 22 from a research site in Birmingham, Ala.

I'm not sure if I'd bring this event up ordinarily, but because I know a fair number of veterans stop by here due to recent stories, I thought I'd pass it on:

A portable hard drive that may contain the personal information of up to 48,000 veterans may have been stolen, the Department of Veterans Affairs and a lawmaker said Friday.

An employee at the VA medical center in Birmingham, Ala. reported the external hard drive missing on Jan. 22. The drive was used to back up information on the employee's office computer. It may have contained data from research projects, the department said.

The employee also said the hard drive may have had personal information on some veterans, although portions of the data were protected. Secretary of Veterans Affairs Jim Nicholson said that the VA and the FBI are investigating.

Rep. Spencer Bachus, R-Ala., said that the personal information of up to 48,000 veterans was on the hard drive and the records of up to 20,000 of them were not encrypted.

No info on the VA home page as of right now. The link to news releases has a 1-paragraph item linking to a full news release, released Friday. (This release day might be coincidence, but it might also have something to do with the fact that a lot of government agencies release unpleasant news on Fridays -- usually late in the afternoon -- because they know the journalists are scrambling to finish up their weekend stories and go home and that they have short attention spans and will have moved on come Monday. There was a "West Wing" episode called "Take Out the Trash Day" that featured this phenomenon.)

Now, this release date, keep in mind, pertains to an event that was first brought to the VA's attention on Jan. 22. I don't know why.

If we don't start automatically encrypting everything on government laptops, we're going to have to stop government laptops from leaving the building. Which, of course, defeats the purpose of having a laptop.

Just sayin'.

As a result of some recent stories I've done on veterans having problems with the VA, I got a call from an area Vietnam-era Marine. We talked about a number of things related to his case. But the thing he said that will stay with me was this:

"I don't want the drugs. I just want to stop hurting."

I've gotten a couple -- only a couple -- of calls/e-mails from people suggesting that the veterans in the stories I've written are seeking things to which they are not entitled. That's possible, although I've seen no evidence of that. The problem is that in so many of these cases, it's impossible to tell what, exactly, they're entitled to because the VA appears not to have followed its own rules.

But whether their claims are valid or not, here's a Marine who's only asking for the one thing no one on God's earth may be able to give him.

So think about that the next time you're inclined to complain about ... well, about anything. I know I will.

My article on the opening of the free legal clinic for veterans at N.C. Central University's law school ran Saturday. Rather than link to the article, which will disappear soon behind the pay firewall, I'll just republish the mailing address here:

Veterans Law Project
N.C. Central University Legal Clinic
1512 S. Alston Ave.
Durham, N.C. 27707

The phone number is (919) 530-7166. Voice mail was supposed to be up and running earlier today, but I've been too swamped to check and see whether it is.

The clinic is set up primarily to help veterans here in North Carolina, but any U.S. veteran is welcome to get in touch and seek help.

This clinic is focusing primarily on issues related to VA disability compensation and pension. But Central's law school has eight other free legal clinics, and this clinic is referring veterans who might need help in other areas (family law or estate planning, say) to the appropriate clinic when it can.

A reader referred me to One Veteran of Iraqi Freedom, a blog claiming to be written by, you guessed it, one veteran of Operation Iraqi Freedom. Other than confirming that the blog exists and appears to address what the reader said it addressed, I haven't read it, but I put this out for whatever it might be worth.

I had another article Sunday on the delay many veterans experience in getting a response to their claims for disability benefits. Fortunately, with this one I was able to get a clearer picture of why these delays are occurring. Lots of factors contribute, and it's hard to say which ones are the biggest problems, but clearly the Veterans Benefits Administration needs more people, more productivity or both.

Given complaints by the Government Accountability Office (Congress's nonpartisan investigative arm) that the Department of Veterans Affairs hasn't sought any kind of budget increase to handle the increase in claims and that the department has claimed that productivity increases will help ease the backlog without explaining exactly how those productivity increases were going to be achieved, I think it's fair to say that this is a management problem.

Next up: Some oddnesses so odd that the GAO designated them a "crisis" -- almost four years ago.

On Sunday, I published an article on concerns about whether or not the federal and state governments will be able to deal effectively with an expected jump in the number of Iraq and Afghanistan veterans suffering from post-traumatic stress disorder and related mental problems.

The article noted that Gov. Mike Easley had convened a summit on Sept. 27 of professionals from a wide variety of backgrounds to discuss how to ensure that returning veterans get mental-health and substance-abuse services they need, and that a report from that summit was due Monday to Carmen Hooker Odom, the state Secretary of Health and Human Services.

That report was released this morning; you can read it online here.

No kidding. ABC News political director Mark Halperin, who -- coincidentally, I'm sure -- has a book to flog, tells idiot talk-radio host (but I repeat myself) Hugh Hewitt that we in the media hate the military:

HH: And these liberals…you know, Terry Moran on this program said ... Terry Moran on this program from ABC, your colleague ...

MH: Right.

HH: ... said that the media hates the military, has a deep suspicion of it. Do you agree with that?

MH: I totally agree. It’s one of the huge biases, along with gays, guns, abortion, and many other things.

Which, I guess, explains why I've spent so much time over the past two months on issues related to this.

And this guy is responsible for political coverage of one of the largest, wealthiest, most powerful mainstream-media news outlets in the world. The. Mind. Reels.

You could say a lot of things about mainstream journalists' relationship to the military ... like, say, that as is true of most Americans younger than about 45, most journalists have never served. You could say they frequently misunderstand the military. But "hate"? Uh, no, Mark, and the next time you decide to anoint yourself to speak on behalf of the mainstream media, please let me know in advance so that I can get a notarized disclaimer to the effect that anything you say may well not even reside in the same dimension as what I actually think, mmkay?

(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.

I've written a story, scheduled for publication Sunday, that examines some of the reasons why it often takes veterans years to obtain disability and pension benefits to which they're entitled. We look at the delays through the eyes of Butch Kirkman of Archdale, who served eight years on active duty with the Air Force and has spent four years, so far, seeking benefits.

Look for it at News-Record.com Sunday morning.

UPDATE: Story here.

If you're in the area and planning to attend this event, please e-mail me.

And if you hadn't thought about going, check the site -- apparently, some financial grants are available to help defray travel costs.

Thanks!

You be the judge:

Nearly a year before they asked Congress for another $3 billion in funding, Veterans Affairs officials knew in late 2004 that their budget was seriously out of whack, congressional investigators said in a report released yesterday.

The Government Accountability Office also found that the VA badly underestimated how many soldiers returning from Iraq and Afghanistan might seek medical and other services, in part because of problems in getting accurate information from the Pentagon.

The VA relied on prewar data from the Defense Department in preparing its budget for fiscal 2005, even though the war was well under way, and estimated that 23,500 veterans of Operation Iraqi Freedom and Operation Enduring Freedom would seek care that year. Instead, the number was four times greater, almost 100,000, the GAO study said.

The problems persisted in 2006, the current fiscal year. The GAO found that the VA will have to provide care for 87,000 more Iraq and Afghanistan veterans than anticipated this year, costing another $276 million.

In general, it says, the VA budgets for fiscal 2005 and 2006 were based on "unrealistic assumptions, errors in estimation and insufficient data."

More recently, the GAO said, the VA has been up to two months late in turning over its required quarterly budget updates to congressional committees, while providing more detailed monthly reports to the White House budget office.

So. Whaddayathink?