SOURCE: Bergmann & Moore, March 24, 2015. Kelly Kennedy reporting.
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Today, Veterans Affairs ends the “informal claims” process veterans have used for generations to get a jump start on their benefits, and while the move could decrease the backlog by thousands of claims, it comes at the expense of veterans.
“We believe the most immediate response to the new regulation will be a sharp reduction in claims filed—potentially hundreds of thousands,” said Glenn Bergmann, partner at Bergmann & Moore, a national law firm that focuses on veterans’ appeals cases. “The changes also place the burden on the veterans, who don’t understand the intricacies of beneficiary law.”
In the past, vets could send a letter to Veterans Affairs saying that they would like to file a claim. This effectively acted as a placeholder—a date from which future benefits would begin—as the veteran worked to file his claim.
It was a popular option: Fully half of all veterans who filed claims in 2014, approximately 600,000 people, filed an informal claim.
And, in the past, it was clear that it was VA’s job to help that veteran gather his or her medical records, whether that be from the military, VA or even private medical practitioners – a fact a recent Supreme Court opinion acknowledged.
Instead, veterans now face a four-page document that inexplicably informs them in its second sentence that they must obtain all medical records before filing their claim. Bergmann fears this will cause veterans to throw up their hands and give up, especially if those veterans are dealing with any issues that can make red tape seem insurmountable, such as traumatic brain injury, post-traumatic stress or other severe physical injuries.
These changes will likely work well for VA. The department has promised to end the initial claims backlog by the end of 2015, but they’re far behind in this goal. The new rule could help them reach the goal by effectively preventing veterans from filing claims that VA will reject because they are “incomplete.”
Not only are the forms confusing, there has been almost no notice that things have changed. Because veterans’ advocates did not see the forms until this month, there has been no training for the people who are supposed to help veterans file these claims. VA just announced the new forms on a blog on its website last week, but has done no advertising, instead relying on organizations like Disabled American Veterans to explain the new changes.
And, there’s no word on what happens if a veteran files an informal claim and sends it to VA. Will VA send the proper form back to the veteran? If so, how long does VA have to send it? Advocates don’t know: The rule does not say. In February, CBS News reported VA adjudicators hid 13,000 informal claims in file cabinets without responding to them. Under the new rule, what happens to those old letters? If there’s no formal response required, could they simply disappear?
“We suspect the next month—the next year—will be a boondoggle as veterans try to figure out the new process and keep tabs on their paperwork,” said Bergmann, a former VA litigator. “Claims on improper forms will disappear, veterans will grow frustrated, and the backlog will most certainly decrease as veterans go without the care and benefits that they earned.”
In the comments for the proposed rule in the Federal Register, several advocates suggested making the new forms voluntary until veterans and veterans service officers get used to the new process. VA stated in the final rule that voluntary forms would still require VA employees to “engage in time-intensive interpretive review of narrative submissions.” In other words, it would be too much work for VA to act in favor of the veterans.
In addition, veterans who file the new claims paperwork online instantly gain a claims date, as well as one year to finish the process. While electronic claims could certainly be beneficial, Bergmann fears veterans who do not have access to the Internet—The American Legion reports only 45 percent of people older than 65 have Internet access, while the average age of a male veteran is 64—could be at a disadvantage. This also includes the poor and the homeless.
Disabled American Veterans, Veterans of Foreign Wars and The American Legion have all come out against this new rule. Rep. Ralph Abraham, R-Louisiana, submitted legislation, HR 245, that would rescind it.
If the new program moves forward, Bergmann expects to see the rate of claims filed fall to historic lows. At the end of last week, 207,697 claims were backlogged—or waiting for a decision for more than 125 days. But if fewer new claims come in, VA could put more resources toward the old claims. It appears, once again, that VA is pushing its own goals ahead of the veterans.
-Kelly Kennedy, for Bergmann & Moore
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