Written by: Jeremy Cole
From 1993 to 2009, the Department of Veterans Affairs (“VA”) made $943 million in over-payments to veterans, and projections suggest another $1.1 billion in over-payments may be made by 2016. Although some of these payments are undoubtedly made to veterans trying to “cheat” the system, most are made to veterans simply attempting to collect the money to which they are entitled, and to whom the VA has mistakenly overpaid. More importantly, veterans who receive these payments often rely on them and have already spent them by the time the VA realizes its mistake.
The VA generally views over-payments as debts the veteran owes back to the VA. Pursuant to Federal Regulations, the VA is required to notify the veteran of these debts, including what actions the alleged debtor can take to remedy the problem. However, beyond this notice requirement, the VA is not required to take any further action.
But, Congress has specified that the VA is not entitled to recover disability compensation over-payments when they are made based on VA error without any fault on the part of the veteran. In these situations, the VA must “waive,” that is, cancel, the veteran’s alleged debt. However, because the VA is only required to notify the veteran of these debts, the VA will not waive the debt unless the veteran explicitly demands that the VA do so. To request a waiver, the veteran must submit a waiver request, and two forms to the VA: VA Form 21-4138, Statement in Support of Claim, and a Financial Status Report, VA Form 5655. By requiring the veteran to proactively challenge the VA’s debt determination, the VA has essentially created a requirement that the veteran point out to the VA its own mistake and subsequent violation of its own regulations. This roundabout process creates unnecessary hardship and stress for the veteran, who is much less likely to know the technical details of VA procedure, and often does not have the resources to effectively challenge VA decisions. The VA is supposed to aid the veteran in getting his or her benefits. By refusing to follow its own procedures until the veteran points out its failure to do so, the VA is violating its own mission, to the detriment of our veterans.
Gregg Zoroya, Auditors: Veterans Affairs overpaid disabled veterans, USA Today (January 23, 2013, 7:37 PM), http://www.usatoday.com/story/news/nation/2013/01/23/veterans-affairs-overpaid-disabled-vets/1859879/
38 CFR § 1.911(d) (2013).
38 U.S.C. § 5112(b); 38 C.F.R. § 3.500 (2013).
Veteran Interrupted: How the C.F.R.’s Inability to Adequately Define Disabilities Frustrates Veterans
October 22, 2014
Written By: Chris Yakubisin
The frustrations for a veteran seeking compensation for the complications and disabilities related to their service are many, one in particular has struck me: the inability of the C.F.R. to adequately define disabilities in its ratings schedules.
What I mean is, while the C.F.R.’s ratings schedules attempt to determine what characteristics of a particular disability warrant what disability rating, there are a lot of considerations that are left out, resulting in ratings that don’t accurately reflect the level of disability. The problem really is that the C.F.R. is attempting to do what may be an impossible job.
There is no way to tell exactly how a veteran’s service will affect them for the rest of their lives. Their experiences are varied and certainly more extreme than a typical person’s daily experience, which leads to more complicated health problems when they return. The rating schedules in the C.F.R. simply aren’t worded to account for many of these problems.
For example, the rating schedule for eczema or dermatitis, rated at 60 percent (the highest rating available for these disorders), requires a veteran to have “More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.” This may seem like a fair rating schedule, but in practice different results may arise. What if, for example, the veteran in question had used corticosteroids to treat their disorder, but over time the negative health effects of the “near constant” use of steroids outweighed the benefit of their use? If that veteran went to apply for compensation for the disorder, after having decided to discontinue the use of steroids, they may be barred from claiming benefits under this regulation.
Or, what if the veteran was affected by this disorder on a small, but important, part of their body, like their hands? In an extreme case this may prevent that veteran from using their hands as they normally would, and may prevent them from keeping steady employment, yet without a substantial rating it would be difficult or impossible to obtain a rating for total disability based on individual unemployability.
This is just one example of the shortcomings in the rating system as it is today; however, it is difficult to imagine an alternative formulation of the system. Were a more pragmatic system to be developed, with a greater emphasis on the real impact of the disability, it would almost certainly be subject to some controversy. Different diagnoses may be treated more sympathetically than others, some may be easier to prove, or one rater may give higher ratings than another, creating more inequality in the system.
While a large-scale expansion and revision of the ratings schedules would be ideal, it is unlikely that we will see that any time in the near future. In the meantime, the best recourse may simply be effective advocacy. Creative solutions for the obstacles presented by the C.F.R. ratings system may be difficult to formulate, but the possibility of an accurate rating still exists for someone who has the time and resources to prove the true nature of their disability to the VA.
October 15, 2014
Written by: Rachel Strubel
The U.S. Department of Veterans Affairs (“VA”) recently announced a new initiative in an attempt to simplify the disability claim process for both veterans and the Department. Starting in March 2015, the VA will use new standardized electronic forms, making it easier for veterans to state their disability claims with the necessary information. The VA is also simultaneously creating a new “Intent to File” procedure that preserves the claim’s effective date while giving the veteran up to a year to compile the necessary documentation. Previously, veterans were able to submit their request for benefits in any form, which VA alleges contributed to the delays in processing. With these initiatives, the VA hopes to increase the efficiency in the disability claims and appeals process.
While it appears facially that these new processes will provide more assistance to veterans by increasing the efficiency of the disability compensation, it may in fact be more detrimental to veterans. First and foremost, these processes require veterans to submit additional documentation, increasing the burden on the veteran despite the VA’s statutory duty to assist veterans in the disability claims process. In other words, these processes are passing the VA’s duty onto veterans. Additionally, many veterans may not have access to these forms and the requested information as many veterans are homeless or lack the necessary resources. Requiring veterans to complete standardized electronic forms may be even more cumbersome and daunting to veterans, in a system that is already difficult to understand and navigate. While these initiatives may increase the disability claims processing speed, the VA is dramatically increasing the burden on veterans that the VA was designed to serve.
VA to unveil new standardized disability claims forms. The Navy Times, September 24, 2014. http://www.navytimes.com/article/20140924/BENEFITS04/ 309240057/VA-unveil-new-standardized-disability-claims-forms
Druzin, Heath. New Electronic Form to Streamline Chaotic VA Claims Process. Military.com News, September 26, 2014. http://www.military.com/daily-news/2014/09/26/new-electronic-form-to-streamline-chaotic-va-claims-process.html
Written by: Ashely Eick
On August 6, 2012, the President signed the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012,” which allows up to a one-year retroactive effective date of disability compensation for fully developed original claims received from August 6, 2013 through August 5, 2015. The motive behind this Act is to incentivize veterans to submit fully developed claims by granting an extra year of disability compensation for successful claims. This fast-track procedure typically cuts down processing time from 254 days to 110 days and significantly lightens the VA workload.
With over 245,175 backlogged claims over two years later, it is clear that the VA still has a problem with processing benefit claims despite the Act. This leads one to ask – why should only original claims be incentivized?
The vast majority of VA disability claims are not initial entitlements but supplemental entitlements, also known as reopened claims, claims for increased compensation, and secondary claims. Therefore, to truly address the backlog of disability claims, the VA should incentivize fully developed claims of supplemental entitlements not just initial entitlements. Without the promise of an earlier retroactive effective date, veterans’ only inducement for filing a fully developed claim is a quicker processing time. Although getting a rating decision a few months earlier may be enough of an incentive for some veterans, for many others, it is not.
In order to submit a fully developed claim, a veteran must identify where all federal military and medical records are located and the dates of treatment for claimed conditions as well submit any medical evidence of current disability, evidence of the in-service event that caused the disability, and evidence of a link between the current disability and the in-service event. For a veteran suffering from a disability, especially a mental one, this process may be nigh impossible and require so much work that it is not worth the effort to get the expedited treatment. However, the promise of a year of retroactive payment may be enough to encourage veterans to submit fully developed supplemental claims, despite the difficulty in doing so, just as the promise is doing with original claimants.
Finally, in terms of public policy, there is something fundamentally wrong with granting a financial benefit only to those who submit initial claims. By financially incentivizing original claimants, the VA is discriminatorily favoring new veterans. Older veterans most likely have already applied for disability compensation before this policy came into effect and are reopening old claims or are petitioning for increased compensation. This means that they are precluded from the fully developed claims incentive. Consequently, the law is discriminating against veterans based on their service date.