Veterans Benefits Blog

A recent story published in the Bay Citizen, a local San Francisco, California paper, indicates that an increasing number of veterans are dying before receiving their benefits. Data obtained by the Bay Citizen indicates that last year the Department of Veterans Affairs “paid $437 million in retroactive benefits to the survivors of nearly 19,500 veterans who died waiting.” This represents a dramatic increase from three years ago, when less than $8 million was paid to fewer than 6,400 survivors. The article reveals that long wait times are to blame for “tens of thousands of veterans being approved for disability benefits and pensions only after it is too late for the money to help them.”

VA Officials cite a change in laws as a significant contributor to the increase in the number of posthumous benefits. In 2008, VA simplified the process for survivors to request compensation. Instead of filing a new claim, survivors may now request to be substituted for the veteran in the pending claim. The individual claiming entitlement to benefits following the veterans death, must submit a written request for substitution within one year of the veteran’s passing. Individuals entitled to benefits under this law include, the spouse of the veteran, unmarried children under the age of 18 or those who have been determined to be helpless children, or dependent parents of the veteran. An individual who bore the veteran’s last medical or burial expenses may also be substituted but is only entitled to the amount actually paid for last medical or burial expenses. 38 C.F.R. § 3.1000.

VA officials also cite the addition of ischemic heart disease, Parkinson’s disease and two types of cancer to the list of diseases presumed to be caused by exposure to Agent Orange as “major catalyst for the rise in posthumous payments.”

The Bay Citizen’s analysis of 18 reports published by the VA’s inspector general uncovered other reasons for the delays. The reports revealed that “auditors found mistakes in more than 1 in 3 high-profile claims they reviewed.” In addition, according to the Board of Veterans’ Appeals 2011 report, the Board found errors in 73 percent of the cases it decided.

It is not just elderly World War II veterans who are passing away while awaiting a decision on their claims. The delays and erroneous denials prevent younger veterans from getting the treatment they need to survive. Whether long wait times are attributable to changes in laws or errors by the Department of Veterans Affairs, the effects of those wait times are unacceptable.

To see the complete article, please follow the link below:

http://www.baycitizen.org/veterans/story/number-veterans-who-die-waiting-benefits/

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In October 2009, the Department of Veterans Affairs, in conjunction with the Department of Defense, launched a web portal that provides resources and self-service capabilities to Veterans, Servicemembers, and their families. It provides the ability to research, access and manage their VA and military benefits and personal information. The site is intended to help achieve Secretary Shinseki’s goal of eliminating the backlog and increasing decision accuracy.

Veterans and Servicemembers can access the site at www.ebenefits.va.gov where they will be guided through the registration process to obtain a premier account. With a premier account, veterans can apply for benefits, download their DD 214, and even check the status of compensation and pension claims.

On July 1, VA introduced its latest quarterly release. The new release streamlines the login process for several VA websites, allowing veterans to access their eBenefits, myHealtheVet, and VA for Vets information without signing in to multiple sites. With this new release, there are now 46 self-service features available through the site. Servicemembers and Veterans can download copies of their official VA and military correspondence, including service verification, benefits verification letters, military records, and VA home loan certificates of eligibility. They can also access Post-9/11 GI Bill enrollment status, VA payment history, and DoD TRICARE health insurance status.
The new release also includes access to a new Career Center page. The Career Center includes self-assessment tools and a resume builder, as well as a “translator” that relates military expertise to civiliam work skills. Through the Career Center, Veterans with access to the VA Veteran hiring site, “VA for Vets,” a VA program aimed at retaining and recruiting veterans.

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What is a C&P Examination?

Three things must be shown for a veteran to be eligible for disability compensation benefits from VA.

1) The veteran must have a current disability.
2) The veteran must have been injured or developed a disease in service, or have had a pre-existing condition which was made worse by service.
3) There must be a nexus between the in-service event or injury and the current disability. This usually means that a veteran needs to provide medical evidence that his or her current disability was caused or made worse by something that occurred during military service.

If a veteran is seeking service connection for a disability, the Compensation and Pension Exam (C&P Exam) is used by VA to establish the above requirements. The exam can be used to determine whether the veteran has a current condition and whether that condition is related to his or her service.

If a veteran is seeking an increased rating for a disability because it has gotten worse, a C&P exam can be used to determine the severity of a current condition.

Along the same lines, if VA believes that a veteran’s condition has improved or if the condition is one that requires reevaluation, VA can order an examination to determine the current severity of the condition.

If you are applying for disability compensation for multiple disabilities, each disability will be separately evaluated. Some facilities will complete all of the examinations at once; others will require you to report for multiple exams. It is important that you report to all of your scheduled exams.

What happens if I don’t go?

It is vital that you attend any scheduled C&P examinations. Failure to attend an exam can result in denial or termination of benefits.

• Newly filed claim for compensation

When a veteran fails to report for an examination, without good cause, the claim will be rated based on the evidence already contained in the file.

• Reopened claim or Claim for Increase

When a veteran fails to report for an examination, without good cause, the claim will be denied.
• Reexamination

When a veteran fails to report for a reexamination, VA will issue a pre-termination notice advising the veteran that payment will be terminated or reduced. The veteran will be provided with 60 days to indicate his or her willingness to report for the reexamination.

Good cause may include the illness or hospitalization of a veteran or the death of an immediate family member.

What if the date doesn’t work for me?

If you have a conflict with the scheduled date and time of your VA examination, contact the individual listed on your exam notification letter. C&P exams can be rescheduled on a one-time basis when the veteran requests that the examination be postponed for a valid reason. You should reschedule your examination as soon as you realize you have a conflict. Remember, if you do not reschedule your exam and you fail to attend, your benefits may be denied or terminated.

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When a veteran is not satisfied with the decision reached by the Regional Office (RO), he/she must file a Notice of Disagreement (NOD). The RO then offers two options for appeal, review by a Decision Review Officer (DRO) or the traditional appeal process. The RO will issue a letter outlining these two options. You have 60 days from the date of the letter to respond with your selection. If you do not respond, your appeal will be sent through the traditional process. In either process, the reviewer can (1) award a full grant of benefits, (2) award a partial grant of benefits, or (3) confirm the original RO decision.

Traditional Appeals Process
This process involves a review of the claims file and any additional information that is submitted. The reviewer can hold a formal hearing with the veteran to gather additional evidence. However, he is only allowed to change the original decision in two instances, (1) new evidence has been submitted, or (2) the original decision was based on clear and unmistakable error. This means the original reviewer made a mistake. The decision can also be changed based on a difference of opinion, BUT the new decision must be approved by the Central Office.

The RO will then issue a Statement of the Case (SOC) explaining the decision. In order to continue to appeal to the Board of Veterans Appeals, you must return the enclosed Form 9 with 60 days of the mailing of the SOC, or within one year of the original decision, whichever is later.

DRO Review Process
This process also involves a review of the entire claims file and any new information that is submitted; however, the DRO considers the evidence without deference to the original decision made by the RO.

DROs can hold formal hearings, just like in the traditional review process, but they are also allowed to hold informal conferences with the veteran or his representative to discuss the appeal.

If the DRO does not award a full grant of benefits, a Statement of the Case (SOC) will be issued and the appeal process will continue in the same way as the traditional appeal process explained above.

Why Should You Choose a DRO Review?
1. DROs are senior level RO employees; therefore, they are more experienced than the average VA decision makers that denied your original claim.

2. DROs have broader powers than regular reviewers. This includes the power to change the original decision without approval from the Central Office.

3. DROs have the ability to hold informal conferences with veterans to discuss the facts or evidence.

4. The DRO process takes, on average, a month longer than the traditional appeals process. This is the time period between when you file a NOD and when you receive a SOC. However, a study by the U.S. Government Accountability Office (GAO), found that you are more likely to receive at least partial benefits if you choose the DRO process instead of the traditional appeals process.

5. According to the same report, the average wait time for decision by the Board of Veterans Appeals is more than 1,000 days from the time a NOD is filed. The average wait time for a decision by a DRO is only 266 days from the time the NOD is filed. Therefore, if you receive a partial grant from the DRO, you will begin receiving your benefits much faster than if you appealed directly to the Board.

6. If your claim is not granted by the DRO, you can still continue your appeal to the Board without having to start the process over again.

Overall, the DRO review process gives veterans an additional chance for a favorable decision, is more likely to result in a grant of benefits early on, provides an opportunity to speak directly with the individual making the decision, and does not forfeit the right to appeal to the Board of Veterans Appeals. There is no real downside to choosing this option, and it may end up being more beneficial.

You can find the complete report by the GAO at:
http://www.gao.gov/new.items/d11812.pdf

Krystle D. Waldron, J.D. is a May 2011 graduate of William and Mary Law School.

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