Veterans discover entirely new battle to obtain benefits 

 

05/13/01

 

By JOAN MAZZOLINI

 

The VA's disability benefits system is so inefficient that more than a half-

million claims hang in bureaucratic limbo. 

 

Officials in the Department of Veterans Affairs acknowledge that the

system is badly flawed and has been for years. The new VA secretary,

Anthony Principi, promises improvements. But some veterans are

skeptical, citing failed initiatives by past secretaries. 

 

There are more than a few veterans like 72-year-old Wayne Young of

Cuyahoga Falls, who has been battling the VA over his benefits for 44

years. 

 

But even fairly routine cases can take years. Here's why: 

 

Some claims are questionable. Determining whether a veteran's illness

or injury stems from his military service, sometimes decades earlier, can

be a complex medical question.

 

There's no limit on the number of times a veteran can appeal the VA's

decisions. Some whose claims are rejected keep presenting new

evidence to keep the case going.

 

Veterans are not allowed to hire an attorney in the initial phases of filing

claims and appealing rejections. They can hire an attorney only in the

final phase - an appeal to the U.S. Court of Appeals for Veterans

Claims.

 

At that point, critics say, cases often have been so badly handled that

even the best attorney can't salvage them.

 

Employees of veterans organizations represent most veterans in the

early stages of a claim. Critics complain that the VA subsidizes these

organizations, and under those circumstances they can't be as

aggressive as needed in presenting claims.

 

An overworked VA staff regularly fouls up, often ignoring the

department's own rules in deciding claims. When the regional offices

have rejected a claim, a veteran can appeal to the Board of Veterans

Appeals. Last year, that panel overturned the regional offices 26

percent of the time and sent back another 30 percent of cases. The VA

special appeals court returned 64 percent of its cases, mostly because

of procedural problems.

 

Those returned cases clog the system and add to the veterans' wait.

 

"This is a system where there is no accountability, no one is

responsible," said Kenneth Carpenter, an attorney who represents

veterans. "At every level, from the veterans service organization rep, to

the VA ratings officer, to the hearing officer, all the way up to the court,

no one is responsible for the screw-ups."

 

Judge Frank Nebeker retired last year after 11 years as chief judge of

the U.S. Court of Appeals for Veterans Claims. His experience

prompted him to call for a restructuring of the VA benefits

bureaucracy, which distributes about $22 billion a year for disability,

pension and other benefits to more than 3.2 million veterans or their

families.

 

VA Secretary Principi saw the claims problem worsening while he was

deputy secretary and then acting secretary under former President

George Bush. Since he left the VA in 1993, however, the situation has

deteriorated.

 

To address the problem, Principi has done what other secretaries did

before - set up a task force.

 

New task force, quick fixes

 

Retired Vice Adm. Daniel Cooper is head of the task force, which is

expected to get under way this week. He has been charged with finding

quick fixes without looking to Congress for new legislation.

 

"It's a convoluted process that we have to make better," Cooper said,

adding that he has been told the VA claims system is the most

complicated in government. The task force will report to Principi in the

fall.

 

Cooper said he's reviewing the many reports done in the past decade.

Hundreds of reforms have been proposed, and the VA has

implemented some of them.

 

One of the most expensive fixes was a $200 million computer system

put in a few years ago that didn't speed up the system. Hundreds of

new workers have been hired, but the VA acknowledges that hasn't

helped yet.

 

Another reform was to give each veteran only one staff person to work

through his claims process. In the past, it was an assembly line with a

different employee picking up the claim at different stages.

 

The VA also has started getting veterans timely medical exams. Those

exams, often missing or from long ago, are vitally important in deciding

claims.

 

Some veterans are skeptical that the task force will do much good.

 

"It's the same song every four years when the new guard comes in,"

said Young, a World War II and Korean War veteran who has been

fighting for increased disability benefits for four decades.

 

When Young was 16, he volunteered for the Army. He left the service

10 years later because of complications from an ulcer. Young said

surgery for the ulcer at a VA hospital in 1957 left him worse off.

 

He receives $194 a month from the VA but believes his award should

be increased because the surgery left him in constant pain that hindered

his ability to work.

 

Last year, the special court of veterans appeals sent back his case - in

part because no current medical exam had been done - giving him

another chance to get higher benefits.

 

"The VA has fought valiantly against this little veteran who did so much

for them," Young said. "It's been so long, so long."

 

Young is one of about 100,000 vets mired in the appeals system. The

VA also has fallen behind in processing original disability claims, with

500,000 pending.

 

Lawyers not allowed

 

After the Civil War, the government limited how much a veteran could

pay an attorney to help him seek benefits; since 1933, the government

has prohibited veterans from appealing VA decisions in civil court.

 

In 1988, Congress banned veterans from paying any amount for a

lawyer except when appealing to the new court it established: the U.S.

Court of Appeals for Veterans Claims.

 

"People are stunned to find out they can't hire a lawyer," said Sandra

Booth, a Columbus attorney who represents veterans.

 

The appeals court can do little more than decide if the VA has followed

its rules and, if not, send the case back into the already burdened

system.

 

Attorneys who take cases to the special court say veterans would

benefit greatly if they could get legal representation early in the process.

 

Even Judge Nebeker, former chief judge of the appeals court, agrees.

Secretary Principi should "urge Congress to get out of the business of

constituent politics and benefit the veterans by letting them have

lawyers," he said.

 

He estimates that banning lawyers adds three or four years to a

process that already takes nearly four years.

 

Letting veterans hire lawyers has been anathema to Congress, the VA

and most of the politically powerful veteran service organizations.

 

"There's nothing that's been shown or proven to me that because a

veteran can't get a lawyer, he's been screwed," said David Gorman,

executive director of the Disabled American Veterans. In 1986, the

DAV and other groups opposed a move to let veterans hire lawyers

and use district courts.

 

Some veterans believe Congress and the VA don't want them to hire

lawyers because it would cost too much.

 

"It's purposeful," said Phil Cushman, a Vietnam veteran and president

of Veterans for Due Process. "If they paid everyone the benefits they're

due, it would break the VA bank."

 

Cushman said he started the group after a VA hearing officer in 1974

degraded him and then laughed when Cushman said he would hire a

lawyer to get his benefits.

 

Clout and free rent, too

 

Veterans primarily use free representatives of the veteran service

organizations, such as the DAV, American Legion and Veterans of

Foreign Wars.

 

These nonprofit organizations usually have offices down the hall from

the VA regional offices. The office space, which costs nearly $6 million

a year, postage and other benefits are provided free by the VA.

 

"They say they represent veterans for free, but the VA subsidizes

them," said attorney Carpenter. "The VA subsidizes their office space,

their training."

 

Carpenter and other critics say that the setup makes the veterans

groups beholden to the VA. At the same time, having the corner on

representing veterans ensures the groups political clout. But Gorman

and others scoff at the criticism.

 

Many lawyers who work with veterans say that while some veterans

group representatives do an excellent job, the majority aren't equipped

to deal with the complex laws that govern veterans benefits.

 

Many veterans who have been through the process agree.

 

"I started out with the veterans service organizations for my benefits,

and when you try getting back with your rep, you can never reach

them," said James Bieler, 54, a Missouri veteran who was in the Navy

during the Vietnam War. "These guys don't have any incentive to call

you back. They know very little about the regulations."

 

After years of appeals, Bieler, who has hepatitis C, got his final denial

from the board and hired a lawyer to appeal to the special court.

Eventually, the VA found him to be 100 percent disabled.

 

The Vietnam Veterans of America, which has volunteer lawyers

reviewing cases, had the best record for getting veterans benefits last

year, according to VA documents. They also believe vets should be

allowed to pay lawyers.

 

But not every organization makes the same effort, said Leonard Selfon,

director of veterans benefits for the Vietnam Veterans of America.

Selfon worked as a VA lawyer for about 10 years.

 

Some veterans groups simply send a one-page statement that the

veteran is entitled to benefits, and " we trust that the board will give its

usual and compassionate review.' Boom, that's the case," he said.

 

How long is the wait?

 

It takes an average of about 200 days at any of the 58 regional offices

to make decisions on the hundreds of thousands of claims filed each

year.

 

About 50,000 or more veterans appeal each year - sometimes because

they were turned down completely but more often because they are

seeking a higher monthly payment.

 

A veteran first appeals at the regional office. If additional documents

are filed, hundreds of days - sometimes a thousand or more - are

added to the process before the veteran can seek a formal appeal to

the board. At that stage, they face another 200 days.

 

Leora Adams made it through the long wait.

 

Her husband, Delmar, had a heart attack in 1943 before being shipped

out to fight in France and Germany. His heart problem worsened, and

in 1980, the VA gave the Missouri farmer a 100 percent disability. He

died two years later at 59.

 

Adams filed for benefits. "He had been getting $1,199 a month, and it

was gone," she said. "They gave me, I guess it was a pension, of $271

a month.

 

"They said he didn't die service-connected,' " she said.

 

For the next 15 years, she continued to appeal. Her case finally made

its way to the special appeals court, where she was permitted to hire a

lawyer.

 

Within two years, the court had sent her case back and she was

granted monthly benefits. She also received 4½ years of retroactive

pay.

 

"I don't know why they picked 4½ years," Adams said. "They should

have gone all the way back. I'm appealing that.

 

"I told them I was never giving up. I said, You might get a letter from

me the day I die.' "

 

 

"From this day to the ending of the world,

But we in it shall be remember'd;

We few, we happy few, we band of brothers;

For he to-day that sheds his blood with me

Shall be my brother; be he ne'er so vile,

This day shall gentle his condition:

And gentlemen in England now a-bed

Shall think themselves accursed they were not here,

And hold their manhoods cheap whiles any speaks

That fought with us upon Saint Crispin's day".

 

 

From Henry V by William Shakespeare

 

Bruce "Doc". Melson

http://www.docmelson.com