You open the big white envelope you just received from the Department of Veterans Affairs, nervously anticipating what actions the VA has so wisely decided to take concerning your VA service-connected disability benefits.  “They are reducing me!” you shout.  “But my condition has become worse, not better!” Your frustration with the bureaucratic monster sets in, followed by a wave of fear and worry.  Your monthly income is going to be cut in half.  You think to yourself, “How can the VA do this!?!  How am I going to pay my bills and support my family?”  

You are not alone in your frustration.  The VA can and does frequently take action to reduce a rating.  However, many times a rating is reduced without proper due process or observation of law.  Compounding the problem are VA examiner performing inadequate exams and under trained VA adjudicators.  I am going to give you seven actions you can take to if the VA proposes to reduce your rating.

1. 1.Attend your re-examination!

The VA may require a Veteran who receives service-disabled compensation benefits to be reexamined by a VA physician to verify the current severity of your disability.  Generally, reexaminations are ordered if evidence indicates a change in the disability or the VA thinks the disability is likely to improve. The examination will generally be scheduled five years from the date of the rating decision. There are five situations in which no reexamination should be scheduled:

• The disability is unchanging;
• Symptoms have persisted without “material improvement” for five or more years;
• You are over 55 years old;
• Your rating is  the minimum rating; or
• Your combined rating will not be affected

*TIP* If the VA schedules a Veteran for an examination and the disability falls within one of the categories listed above, the Veteran may wish to contact the VA and request that it reconsider its decision to schedule the exam.

A Veteran who fails to report for a reexamination without good cause or without attempting to reschedule the examination may have his disability payments reduced or discontinued.  Good cause includes the VA sending notification of the reexamination to the wrong address; illness or hospitalization of the Veteran; or death of an immediate family member.  If you have a reasonable excuse for failure to report for a scheduled reexamination, the Veteran should notify the VA of this fact as soon as possible.

At the exam, it is important that you make the examiner aware of all the symptoms of the service-connected disability that is being reevaluated.  Do not downplay or minimize your symptoms.  It is also important to fully describe to the examiner the effects of your disability upon your ordinary activity.  For example, say the Veteran’s back condition is being reexamined.  The Veteran’s back may not be painful at the moment the exam is being conducted, but he experiences painful motion and flare-ups in his back while at work.  It is important to make this information known to the examiner.

Shy Veterans or those who minimize their symptoms may wish to bring a spouse or another loved one into the exam so that they can provide additional details on the Veteran’s observable symptoms to the examiner.

1. 2.Request a hearing.

An important protection in cases where the VA proposes a reduction of service-connected disability benefits is the Veteran’s right to a predetermination hearing.  The hearing must be requested within 30 days from the date of the notice of the proposed reduction.  If the Veteran requests a hearing within 30 days, the proposed reduction will not be implemented, if at all, until the hearing takes place.

A benefit of asking for a hearing within the 30 day period is that the reduction of benefits is delayed.  The reduction will not be implemented until at least 60 days after the final decision to reduce is sent to the Veteran.  This buys the Veteran at least two months of benefits at the current percentage and gives additional time to gather evidence.  Further, the hearing provides another opportunity for the Veteran to describe his condition and symptoms to the VA adjudicator.

1. 3.Obtain a copy of your reexamination report.

You can’t contest a proposed reduction if you don’t know the content of the medical opinion upon which the reduction is based.  It is easy to obtain a copy of the report so that you can verify the physician accurately recorded the symptoms of your service-connected condition. Complete this form:https://www.va.gov/vaforms/medical/pdf/vha-10-5345a-fill.pdf  and send or bring it to the VA medical facility which performed your reexamination.

Once you receive the examination, review it and search for any inaccuracies reported by the examiner.  For example, perhaps the VA examiner reports that you have panic attacks only once a week, but you told the examiner you experience panic attacks at least three times a week.  You can report this discrepancy to the VA using VA Form 21-4138 or mention it to the VA adjudicator at your scheduled hearing.  An exam based on inaccurate facts should be considered of little value and the Veteran should request a new exam is given.

1. 4.Acquire your treatment records.

The VA must base any proposed reduction upon a review of the entire history of the Veteran’s disability and not on the single reexamination.  If you receive treatment for the service connected condition that the VA is proposing to reduce, it is important that the VA has copies of these records. Treatment records are important so the VA has an accurate picture of the disability.  If you receive treatment from a VA facility, you can obtain a copy of your treatment records using the form mentioned in point “3” above.  If you are privately treated, ask your private physician how you can obtain a copy of your treatment records and progress notes.  It is recommended that you request the last two years of records.

*TIP* You should only submit treatment records that are relevant to the service connected condition that the VA is proposing to reduce.  If you overwhelm the VA with hundreds of pages of records, there is a good chance they will be overlooked or not thoroughly reviewed by the VA.

1. 5.Ask for Buddy statements.

Ask your friends, family, and co-workers to write letters on your behalf about symptoms they can observe of the service connected disability.  Laypersons cannot diagnose conditions, but they are able to testify as to the symptoms readily observable.  For example, a friend can write that a Veteran with PTSD once socialized on a regular basis, but that he rarely sees him now because he won’t leave the house.  Another example is a spouse writing on behalf of a Veteran with service connected knee injury who can only walk a few blocks before he has to stop due to pain.

1. 6.Know the legal standards.

Many VA adjudicators are overworked, under trained, and don’t  understand the nuances of VA law.  One of the most powerful things you can do for yourself, is educate yourself on the requirements the VA must meet before it may lawfully reduce a disability rating level.  If the requirements are not met, the improperly reduced benefits must be reinstated.  The rules that protect Veterans against reductions in ratings vary depending on how long the rating level has been in effect.

Five years or more.  Any rating evaluation that has been continued at the same level for five years or more, may not be reduced unless all the evidence of record shows “sustained improvement” in the disability.  Sustained improvement means the disability has not temporarily improved and the improvement will be maintained under the ordinary conditions of life, such as at work.

Less than five years.  The VA must determine if there has been an actual change in the disability.  Further, any improvement must reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  Lastly, the examination reports reflecting any change must be based on thorough examinations.  For example, an exam is not thorough if it does not discuss the symptoms found in the treatment records.

Twenty years.  If a disability has been continuously rated at a particular rating level for twenty years or more, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud.  For example, if a Veteran is granted 30 percent for PTSD and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot be reduced below 30 percent in the absence of fraud. The twenty year protection rule applies even to rating levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error.

1. 7.Appeal if necessary.

If you do steps 1-6, but the VA still reduces your service connected disability rating, don’t fret!  Even if the VA reduces your rating, you can still appeal that decision.   If you want to contest the reduction, you have one year from the date of the final determination to file VA Form 21-0958, Notice of Disagreement.  It is advisable to speak with a VA accredited attorney or representative before submitting your appeal.  If it is found that the ratings were made without observance of law, the rating will be reinstated and the Veteran will be back paid to the date of the erroneous reduction.

Edward M. Farmer is a U.S. Army Veteran and attorney. A majority of his career has been dedicated to assisting Veterans.  More information regarding Edward and his law firm can be found at www.Vetlawoffice.com

The material and information contained on these pages and on any pages linked from these pages are intended to provide general information only and not legal advice. You should consult with an attorney licensed to practice in your jurisdiction before relying upon any of the information presented here.

Source

The day was just like any other day. Until you checked your mail. The big brown envelope was in it, with the VA logo in the upper left corner. You knew it was your VA PTSD Rating Decision. It’s about time – you filed yourPTSD service-connection claim18 months ago. “Why does the VA take so long,” you think. “It shouldn’t be that hard for the VA to service connect PTSD.”

You tear off the envelope open expecting to see a 70%, or 100% rating. That dude in your unit who was there that day – and saw the same things you did – got a 70%, and he seems to be having an easier go of life than you.

Part of you is excited. That extra compensation is going to make a difference. You are struggling to make ends meet as it is. You got fired from the last job for getting upset with your boss. The job before that you quit because all the people moving around that place wanting to talk made you jumpy and anxious.

When you read the letter, your heart sinks. Then, a wave of anger and frustration.

10%. That’s what they gave you. The same rating they give to every Veteran with tinnitus.

Where do you go? What do you do?

First, it is important to know that you are not alone – the VA is not out to get you, and didn’t do this as retaliation against you.

I’m serious about that: the VA is just plain incompetent when it comes to rating most medical conditions. Most of their raters try to do a good job – many are Veterans themselves – but the VA doesn’t give them training. VA management has created a culture of hostility and back-stabbing where all problems are blamed on the “unions.”  Don’t let me go down THAT rabbit hole.

A lot of Veterans – some worse off than you, some better off than you – have a diagnosis of service-connected PTSD and find themselves “low-balled” with a rating that is much lower than that of their peers and that does not reflect the severity of their medical condition and the affect it is having on their lives.

When it comes time to appeal that low rating though, most Veterans have something else in common: they don’t have the tools to adequately challenge the low VA PTSD rating and don’t know where to start even if they did.

I’m going to give you some ideas to deal with the lowball VA PTSD rating.

The #1 thing to consider when your VA PTSD Rating is low-balled.

There is nothing wrong with getting a professional to help you.

VA PTSD claims can be really tough, even on straightforward facts. Recently, I talked to a Vet who witnessed some horrible, horrible things during the invasion of Panama that messed him for a long time and put him on a path to opioid abuse and homelessness. The VA denied him service connection for PTSD.

At my own firm, I’ve gone to the Veterans Court many times to straighten the BVA out on low-balled VA PTSD ratings. I’vestopped them from symptom hunting. I’ve seen ratings so bad that the Veterans Court found the BVA’s actions “disconcerting.”  And we stopped the BVA from an absurd decision that gave a 30% PTSD rating to a Veteran who had regular hallucinations due to his trauma.

These cases are hard to fight – there are so many traps for the unwary that just add stress and anxiety to a situation that probably already has too much.

And I’m here to tell you, if I was fighting the VA on my own PTSD claim, there is only one attorney I would get to help me:Matt Hill.

I don’t recommend people very often on the Veterans Law Blog® – it’s not what we are trying to do here. I”m trying to educate Veterans, not shill for other businesses. I’ll tell you about lawyers, and experts, but I rarely make suggestions.

I’ve known Matt for almost 10 years now, and he knows his stuff when it comes to PTSD claims.Click here to watch a quick interview with him a couple years back– use the form on that page and it will email him your info and ask for a consultation. And you can absolutely tell him that Chris Attig said he was the best.

But don’t let me pressure you: if you want to handle your own VA PTSD rating appeal – and many, many Veterans do so successfully without having to pay an attorney or stress out over a non-responsive VSO – the rest of this post is a good place to start figuring things out.

So, I’m going to walk you through 9 Things that might help you get the VA PTSD rating you are entitled to.

These are  not the ONLY 9 things, and every case is different. Let’s get started.

Understand where your VA PTSD rating fits in the 4 Pillars.

When we talk about a VA Claim, we talk about simplifying it bybuilding the 4 Pillars.

The 4 Pillars are the 4 things that every Veteran, in every VA claim, needs to prove before they will recover service-connected disability compensation.

Impairment ratings – or the way that the symptoms of your service-connected condition are equated to a percentage and a dollar value – are the 3rd Pillar.

The VA PTSD rating table is a little intimidating at first. It’s a jumble of sentence fragments, a massive list of symptoms, written by government bureaucrats that have long since forgotten how to communicate with earth people. Take a look:

That right there, my friends, is the definition of “impenetrable jargon.”

Here are 9 pointers to help you evaluate the rating in yourVA PTSD claim.

#9: Did you File your VA Claim – the Right Way?

The 2 biggest errors that Veterans make in their VA Claims – and the 2 errors that cause them to get stuck in the VA backlog for longer and longer periods of time, are these:

1. They filed their claim and expected the VA to do the work – or to do the RIGHT work – in developing the claim.
2. They didn’t “connect the dots” for the VA in a simple straightforward way that made the VA Rater WANT to grant the claim.

What does that mean in the context of a VA PTSD rating? Usually, it means the Veteran dumped 3, 5, or 10 years of mental health treatment records, and a couple handwritten statements on a VA Form 21-4138, on the VA and hoped the rater would see how bad things were.

Remember, they don’t get training. And they see so darn many claims that they aren’t going to spend but a few minutes deciding your VA PTSD rating.

You can avoid those solutions byFiling Your VA Claim – the Right Way – from the very start.

• Find out WHAT 5-star evidence you need to put in your VA Claim.
• Find out HOW to make the arguments in a way that makes them easy for a rater to understand.

It’s a simple fact that if you put the RIGHT evidence into your claim, and explain in a very clean and basic way how that evidence shows your sleep apnea is service connected, your claim will go quicker.

And you will probably get better results.

When you are ready to start learning How to File Your VA Claim the right way, click here & read this  post.

#8:  The best-kept secret in a VA PTSD Rating are the Bankhead and the Mauerhan cases.

The Code of Federal Regulations – before listing the PTSD rating criteria in DC 9411 – says that when rating PTS, the VA should consider symptoms “such as” those listed.

That’s key language – as the Courts told us in Mauerhan.

You don’t have to find  ALL the factors on the list to qualify for a particular rating.  You just have to make a case for your symptoms being similar to the symptoms listed at the rating level you believe you are entitled to.

And what the Courts told us in Bankhead is that the VA is supposed to look HOLISTICALLY at your medical condition when assigning a rating for PTSD. I’m not going to get into Bankhead in too much detail here. I write a blog to help lawyers learn Veterans law, and have written about Bankhead.

#7: Occupational Impairment factors are more important for VA PTSD Rating purposes.

I’ve reviewed hundreds, if not thousands of Veterans C-Files.

When the VA PTSD rating is too low, a common reason I have seen is that the Veteran focused on the social impairment factors, and not the occupational impairment factors.

Take a look at all the factors in the 50% category for PTSD.

In addition to equating those symptoms to your social life (home, family, friends and social interactions), relate them to your ability or inability to get or keep a job.

#6:  The VA PTSD rating criteria is NOT a complete list of PTSD symptoms.

Remember that the list of symptoms on this list are not meant to be every possible symptom.

If you have symptoms, or manifestations of symptoms of your PTSD that are not on this list (and there are plenty), see which ones on the list are similar to yours. And then make that argument – that your symptom is like such-and-such a symptom of the 70% rating.

The list of symptoms in the table above is not as a comprehensive listing of PTSD symptomatology. Think of it as an objective tool that was supposed to help make sure Veterans get rated as consistently as possible when PTSD affects them in similar ways.

#5: Did the VA examiner consider the frequency, severity and chronicity of PTSD symptomatology?

This is one thing that C&P Examiners overlook the most often. They hunt-and-peck through your medical records for a symptom that matches the one on the rating list, and if they don’t find it, they move on and give you a 10% rating. This is called “symptom-hunting” and it misses the whole point of Bankhead, discussed above.

To make a “holistic analysis” of your mental health condition’s impact on your life, the VA rater must consider the frequency, chronicity and severity of your PTSD in work and social settings.

Rarely do C&P exams for Veterans with a PTSD claim discuss how long the symptoms last or the length of any periods of “remission”. Sometimes, they discount the resilience/remission factors so much so that they change the Veteran’s diagnosis altogether.

For example, we were able to get one Veteran a higher PTSD rating by showing that her “resilience” was not as high as one might thing from frequent periods of remission: because of the nature of her symptoms, she still had significant social and occupational impairment limitations during the “remission” period.

#4:  Did the VA consider ALL of the evidence in the record?

Far too often, VA C&P examiners focus on the most recent symptomatology.   The doctor has to look at the whole of the evidence of the record.

One thing you can consider doing is making a copy of any medical recordrelating to your PTSDout of your C-File.

Organize those documents from your C-File in chronological order, and type up an EASY to read outline of the chronology of your symptoms – keep it to 1 page, double spaced, so it’s easy to read.

Share it with your C&P Doc, and ask them to put the chronology in your C-File when they are done.

Don’t argue your position, just hand it to the doc and say “Here’s the chronology of my condition, if it helps you, use it.  If not, just put it in my C-File.”

This is really hard to do if you don’t have your C-File – here’show to get a copy of your C-File.

#3:  What is the GAF scale?

TheGAF scale is a subjective rating, on a scale of 0 to 100, for a doctor to “evaluate” a Veteran’s overall psychological, social and occupational functioning.  The higher the score, the more ability the Veteran has – in theory – to function in a wide range of activities.

Problem is, GAF scores are nonsense. Seriously, ask a psychiatrist or psychologist how they come up with a GAF score. They pick a number out of thin air that “feels right.” One doctor could give you a GAF score of 30 (low functioning). Another could give you a GAF score of 60 (reasonably high functioning). For the same symptoms.

So, in DSM-V, the medical profession threw GAF scoring to the crap-pile.

Even still, I see many, many PTSD ratings that give heavy consideration to GAF scores over actualobjective medical and lay evidence of PTSD symptomatology.

In current claims, the GAF score is no longer used – however, many VA Raters still wrongly use the GAF score and in some claims, the appeal is based on the law at the time of the denial, which may have involved use of the GAF Score.

This is CRITICAL: if you have a claim or appeal filed after August 14, 2014, and the VA or BVA is using GAF scores, they are very likely rating your claim wrong.

#2:  Don’t let the VA rate you based on the ABSENCE of factors for a particular level.

I really think that if the VA wouldget away from using “negative evidence”, 80% of the backlog would be cleared out.

Seriously – I think I see this error in nearly every case I look at.  The VA cannot usually consider the absence of evidence as proof of anything.

If your VA PTSD rating talks about how you DON’T have certain symptoms or problems, you need toget in touch with a lawyer ASAP. The way to fix this is a legal argument, coupled with a long-term appeal strategy.

Find out how tochoose the best attorney for your VA appeal in this free eBook.

#1:  Did you downplay your symptomatology at the C&P Exam?

Many Veterans get dressed up in their “Sunday best” for their Comp & Pen exam, believing that they are more persuasive when they “present” well.

Other Veterans refuse to shower, shave, or wear clean clothes, based on the suggestion of some random Veteran in a facebook group.

BOTH approaches are wrong.

Remember, doctors can assess the symptoms in your records – AND the symptoms they observe.  When itcomes to your appearance at the C&P exam, BE your symptoms.

More importantly, don’t downplay your situation.

Let the doctor see, and hear, how bad your PTSD is affecting you.

Vietnam Veterans out there tend to be serious hard-asses, and refuse to tell people when they are hurting.

I’m not judging at all – I am saying that the time to downplay your symptomatology is NOT during your PTSD C&P exam. (By contrast, you don’t want to exaggerate your symptoms either).

The Veterans I see with PTSD ratings that are too low (or that later face ratings reduction problems because they were over-rated) all have one thing in common – they failed to follow the Golden Rule of PTSD C&P Exams: Just be yourself.

Here are some more tips for getting through a VA PTSD C&P exam – or any C&P exam for that matter.

Conclusion.

These tips for evaluating your VA PTSD Rating are worthless unless you have your C-File.

Without your C-File, youcan’t know how much weight the VA is wrongly putting on arbitrary GAF scoresfrom 10 years ago, whether all of your medical records made it into the VA’s hands, or whether there is something really damaging in your file (like some VA C&P examiner down in Florida who finds every Veteran is malingering, over-reporting, or under-reporting symptoms without explaining what those terms mean, medically).

Here’s where I show youmy Firm gets C-Files from the VA.

I hope these tips helped – let me know if you have any thoughts or questions.

Source

Editor’s note: This is the second in a series of articles focusing on appeals.

In my previous post, I wrote about the difference between a claim and an appeal. Most Veterans are aware that claims are rated at the VA regional office (RO), usually in their state. However, a lot of Veterans are not aware that appeals are also reviewed at the regional office before they go to the Board of Veterans’ Appeals (Board). In this piece I will discuss the RO’s appeal process, your role in the process, and the things you can do to help expedite your appeal.

Appeals at the local regional office level

Once a VA office issues its decision on your claim, you have one year from that date to file an appeal. Read the decision letter closely: it will tell you why VA made the decision it did. If you are unsure why or how VA made its decision, ask a Veterans service officer for help. You can also call VA or go to your regional office.

If you disagree with VA’s decision for any reason – the effective date of your award, the rating percentage you were given or the reason you were denied – you should file a Notice of Disagreement (NOD). If VA included VA Form 21-0958, Notice of Disagreement, with its decision, you must use that form to file your NOD – it is mandatory. The NOD is the start of your appeal.

Once you file your NOD, you have several rights: you can submit new evidence, ask for a de novo review where a decision review officer (DRO) takes a “fresh look” at the claim, reviewing the entire claims file and/or ask to testify and present evidence at a telephone or in-person hearing. VA encourages Veterans who choose to have a hearing to opt for an informal teleconference hearing, since these can be scheduled much faster. Many appeals are favorably resolved at these early stages. Make sure you file your NOD on time: your right to appeal ends a year from the date of VA’s decision.

When you file your NOD, you have a choice: either select a traditional review or a de novo review by a DRO. You can make this choice right on your NOD when you start your appeal. If you don’t make a decision, VA will mail you a notice of this right, and you’ll have 60 days to respond, so answer right away.

I’ve mentioned a couple pro tips, but I want to call them out:

• If you are dissatisfied with the decision on your claim, file your appeal right away
• When you file your NOD, submit any new evidence you have; waiting until later on in the process can delay your appeal
• Also, when you file your NOD, state if you want a DRO review or a traditional review – this will also save you time on your appeal

Traditional Review

If you opt for a traditional review, a member of the RO appeals team reviews the decision on your claim to determine if it was processed correctly; if it was, the RO will issue you a Statement of the Case (SOC). An SOC lists the applicable laws and regulations related to that decision, all the evidence that was considered in making the decision and a detailed explanation of the decision VA made.

De novo Review

A de novo review is your other option. de novo, which means “new,” or “fresh look,” is a Latin term used by lawyers. In a de novo review, a DRO, who is a senior-level, highly experienced claim processor, looks at all the evidence of record (your entire claims file, including any new evidence you’ve submitted). The DRO can grant your appeal, deny your appeal and issue an SOC, or order additional development (such as a new medical exam or a request for additional medical records), if warranted.

Unless the RO grants the full benefit you are seeking, you will receive an SOC. This means EVEN if the RO grants your claim, you may receive an SOC, allowing you to continue the appeal. For instance:

• If you were appealing service connection for tinnitus (ringing in the ears) and the RO granted this on appeal at 10 percent, the RO appeals team will ONLY issue a rating decision since 10 percent is the highest rating you can receive for tinnitus. This means the appeal has been granted in full. You will not receive an SOC.
• If you were appealing VA’s 10-percent rating for arthritis in your lower back because you believe you should be rated higher, but the RO appeals team disagrees and continues your 10-percent rating, you will receive ONLY an SOC.
• If you were appealing VA’s 10-percent rating for arthritis in your lower back because you believe you should be rated higher, and the RO appeals team agrees and increases your rating to 20 percent, you will receive BOTH a new award decision explaining why VA increased your disability rating AND an SOC detailing how VA arrived at its decision, including why you were not entitled to a rating higher than 20 percent.

You have 60 days from the date the SOC is mailed to you to file a VA Form 9, Appeal to the Board of Veterans’ Appeals, if you wish to continue your appeal to the Board. Any time you submit more evidence after the SOC or before the Form 9, VBA must conduct another review of the case and issue another SOC – this one called a supplemental statement of the case (SSOC) that includes the additional evidence – or a rating decision, if the additional evidence allows VBA to grant the appeal. This must be done each time you submit new evidence after the SOC. I have seen appeals with four or five SSOCs. Keep in mind, each time you submit new evidence it triggers a new review. It’s like starting all over again in the appeals process. Each new SSOC can add up to 400 days to the appeal, so my best advice is, submit all available evidence to support your appeal when you file your NOD.

On the Form 9, you can request an optional hearing before a judge at the Board, who will decide your appeal. A hearing is not required and will delay a final decision, but if you want a hearing, you can choose a video-teleconference hearing, a travel board hearing at your local RO, or an in-person hearing in Washington, D.C.

If you want a hearing, your best bet is to opt for the video-teleconference hearing, since it can be scheduled much quicker than other types of hearings. This is because you don’t have to travel to Washington, D.C. and you don’t have to wait for a judge to travel to your RO. You still get the benefit of representation and talking to a judge face-to-face – though virtually, like on Skype or on FaceTime.

Once you submit your Form 9, the RO appeals team reviews your appeal to ensure all actions were completed and that it is ready to go to the Board. Once ready, the local RO will certify and transfer your appeal to the Board in Washington, D.C.

In my next piece, we will discuss the appeals process at the Board. But in the meantime, I am happy to answer questions about the RO appeals process in the comments section. Please remember, we cannot answer questions on your specific appeal.

Source

WASHINGTON — More than 238,000 of the 847,000 Veterans with pending applications for health care through the Department of Veterans Affairs have already died, according to an internal VA document provided to The Huffington Post.

Scott Davis, a program specialist at the VA’s Health Eligibility Center in Atlanta and a past whistleblower on the VA’s failings, provided HuffPost with an April 2015 report titled “Analysis of Death Services,” which reviews the accuracy of the VA’s Veteran death records. The report was conducted by staffers in the VA Health Eligibility Center and the VA Office of Analytics.

Flip to page 13 and you’ll see some stark numbers. As of April, there were 847,822 Veterans listed as pending for enrollment in VA health care. Of those, 238,657 are now deceased, meaning they died after they applied for, but never got, health care.

While the number is large — representing nearly a third of those listed as pending — some of the applicants may have died years ago. The VA has no mechanism to purge the list of dead applicants, and some of those applying, according to VA spokeswoman Walinda West, likely never completed the application, yet remain on the pending list anyway. West said the VA electronic health record system has been in place since 1985, suggesting some of the data may be decades old and some of those people may have gone on to use other insurance.

About 81 percent of Veterans who come to the VA “have either Medicare, Medicaid, Tricare or some other private insurance,” said West. “Consequently, some in pending status may have decided to use other options instead of completing their eligibility application.”

But Davis disputed West on every point. For starters, an incomplete application would never be listed as a pending application, he said. Beyond that, the health records system West is referring to is just that: general health records, not pending applications for enrollment in health care. The VA has only required enrollment in health care since 1998, he said, and there was no formal application process before that. Davis provided an internal VA chart that shows backlogged applications only beginning in 1998.

As for some Vets having other insurance, Davis said it is “immaterial and a farce” to suggest that means VA shouldn’t be providing Vets with the health care they earned.

“VA wants you to believe, by virtue of people being able to get health care elsewhere, it’s not a big deal. But VA is turning away tens of thousands of Veterans eligible for health care,” he said. “VA is making it cumbersome, and then saying, ‘See? They didn’t want it anyway.’”

At a minimum, the high number of dead people on the pending list indicates a poor bookkeeping process that overstates the number of living applicants — a number that should be closer to 610,000.

This waiting list is unrelated to the VA backlog that made news last year, which left Vets who already had coverage with extremely long wait times. VA press secretary Victoria Dillon told HuffPost the agency has made strides on that front, doubling the number of its appointments from 3.5 million to 7 million since last year.

Davis sent copies of the report to House and Senate committees that oversee Veterans affairs, and to the White House, hoping to spur congressional and presidential action to pressure VA to clear its health care backlog.

A spokesman for the Senate Veterans Affairs Committee did not respond to a request for comment. Eric Hannel, the staff director of the House Veterans Affairs Subcommittee on Oversight and Investigations, said his team is looking into the report’s findings.

“We take it seriously,” said Hannel.

A White House spokesman did not respond to a request for comment.

Davis recently sent a letter to Sen. Johnny Isakson (R-Ga.), who chairs the Senate Veterans Affairs Committee, laying out the problems with the health care backlog. He highlighted that 34,000 combat Veterans are among those listed as pending for health care — none of whom should be on that list since combat Veterans are granted five years of guaranteed eligibility for VA health care.

“They have no business being there,” he said. “These are men and women who served in Iraq and Afghanistan.”

The best thing President Barack Obama can do, said Davis, is force the VA to allow Veterans to upload their so-called DD-214 forms when they apply for health care. The form is a lifelong document that shows a person’s military record. If Veterans could use it to show their eligibility for health care, and if the VA assigned staff to review all of the pending applications, it would clear the logjam in the system, he said.

“The White House has the ability to direct the VA to do this immediately,” said Davis. “That would get rid of the pending eligibility issue.”

This story and its headline have been updated to clarify which VA backlog was revealed in the new document.

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WASHINGTON — Veterans rejected for disability benefits will have a new slate of appeals options starting next month, when federal officials will put in place an overhaul the review process with hopes of dramatically cutting down on wait times for the complicated cases.

Last week, Department of Veterans Affairs officials announced they will implement new appeals modernization rules starting Feb. 19. Work on the effort has been underway for more than 18 months, since lawmakers passed sweeping reform legislation on the topic in August 2017.

Under the new rules, Veterans will be given three options for their benefits appeals. All three are designed to streamline the complicated existing process for cases, which can languish for years as new evidence and arguments are introduced throughout the timeline.

Now, VA leaders are hoping the most difficult reviews can still be completed in under a year in the vast majority of cases. Their target for cases which don’t go before the Board of Veterans Appeals is an average of about four months for a final decision.

A successful appeal can mean potentially thousands of dollars in monthly benefits payouts for Veterans who have previously been turned down for what they believe are service-connected injuries and illnesses. VA and Capitol Hill leaders hailed the changes as a long-overdue fix.

“(This) is the most significant reform in Veterans’ appeals processing in a generation and promises to improve the timeliness and accuracy of decisions for our nation's Veterans,” said House Veterans’ Affairs Committee Chairman Mark Takano, D-Calif.

He promised close oversight of the work ahead, but also hope about the potential rewards for Veterans.

Committee ranking member Rep. Phil Roe, R-Tenn., last week visited a regional office in his home state that will be involved in the new appeals process and left feeling confident in its success.

“The VA staff feel really good about this,” he said. “They’re worked out the hiccups they’ve had, and are ready to move ahead. Getting all the training and experience is going to take time, but I walked away optimistic.”

Veterans groups largely supported the appeals overhaul, although a few groups have expressed concerns about the new system limiting Veterans options for future reviews in favor of getting faster answers.

Under the first of the three new appeals processes, Veterans can file a supplemental claim where they introduce new evidence backing their case. The appeal is handled by specialists at a regional office, who render a final decision on it.

In the second option, Veterans can request their case be reviewed by a senior claims adjudicator instead of the regional office. Those experts will review cases for clear errors or mistaken interpretations of statute. If they find mistakes, they can mandate corrections for the cases.

Finally, Veterans will also be able to appeal directly to the Board of Veterans’ Appeals. Those cases are expected to take the longest to process, because of the legal prep work involved. Veterans can get a direct decision or request a hearing before the board.

Portions of the new process have been implemented as pilot programs at select sites in recent months. Previously, cases involved a combination of all three options, with cases reset and repeating steps with every new submission of case evidence.

Veterans with cases currently pending in the system can opt-into the revamped processes starting next month, or remain in the current system if they believe it will better benefit them.

More information on the changes is available through the Veterans Affairs benefits website.

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With the federal deficit expected to top $1 trillion this year, the Congressional Budget Office in December published a list of options for reducing the imbalance over the next 10 years, including three suggestions on Tricare and six that address Veterans benefits.

In its Options for Reducing the Deficit: 2019 to 2028, the CBO laid out 121 opportunities for curtailing spending and raising revenue. These include raising Tricare enrollment fees for military retirees, instituting enrollment fees for Tricare for Life and reducing Veterans benefits.

The publication marks the fourth time in five years that the CBO has suggested raising Tricare enrollment fees for working-age retirees and introducing minimum out-of-pocket expenses for those using Tricare for Life.

The CBO suggested that increasing Tricare enrollment fees for working-age retirees -- those under age 65 -- could help slash the deficit by $12.6 billion. To obtain this, it said, the Defense Department should more than double annual enrollment fees for individuals and families enrolled in Tricare Prime and institute annual fees of $485 for an individual and $970 for a family for Tricare Select. Most working-age retirees currently pay no enrollment fees for Tricare Select.

The CBO also suggested instituting enrollment fees for Tricare for Life, the program that serves as supplemental coverage for military retirees on Medicare. Analysts estimated that the Defense Department could save $12 billion between 2021 and 2028 if it adopted annual enrollment fees of $485 for an individual or $970 for a family for Tricare for Life, in addition to the Medicare premiums most military retirees 65 and older pay.

According to CBO analysts, these options would reduce the financial burden of Tricare for Life to the DoD in two ways: It would cut the government's share by the amount of fees collected and indirectly would save money by causing some patients to forgo Tricare for Life altogether, either by buying a private Medicare supplement or simply going without one.

Another option would be to introduce minimum out-of-pocket requirements for those using Tricare for Life. In this proposal, TFL would not cover any of the $750 of cost-sharing payments under Medicare and would cover just 50 percent of the next nearly $7,000.

Retired Navy Capt. Kathryn Beasley, director of government relations for health issues at the Military Officers Association of America, said her organization is concerned that the CBO continues to include health care rate hikes for military retirees in its list of options, which it publishes every few years or so. The CBO also ignored the fact that rate increases went into effect last year, she added.

"CBO does this every year. Our biggest concern is that some of these options would make their way into the president's budget," Beasley said. "With all the changes to the military health care system in the past year, we think we simply need to stabilize Tricare. It's been a lot to absorb."

According to the CBO, the Department of Veterans Affairs also presents several opportunities for cost-savings measures. Some suggestions in the CBO assessment include:

• Narrowing eligibility for disability compensation for seven diseases the Government Accountability Office has said are not caused or aggravated by military service, including arteriosclerotic heart disease, chronic obstructive pulmonary disease, Crohn's disease, hemorrhoids, multiple sclerosis, osteoarthritis, and uterine fibroids. This option would save $33 billion over 10 years.
• Ending the VA's individual unemployability payments to disabled Veterans when they turn 67, the retirement age for receiving full Social Security benefits, which would save an estimated $48 billion.
• Reducing disability benefits to Veterans older than 67 who are receiving Social Security payments. This could save the government $11 billion.
• Eliminating disability compensation for 1.3 million Veterans with disability rates below 30 percent, saving $38 billion over an eight-year period.

The VA option with some of the largest savings potential, according to CBO, would be to end enrollment for the two million Veterans in Priority Groups 7 and 8 -- those who do not have service-connected disabilities and have income above the VA national threshold and below a geographically adjusted threshold (Group 7) or above both thresholds (Group 8). This could save the government up to $57 billion, CBO analysts said.

Finally, the CBO said the federal government could raise revenue by including VA disability payments as taxable income. According to the CBO, if all disability payments were to be taxed, federal revenues during the time frame would increase by $93 billion.

If just Veterans rated 20 percent or less paid taxes on their disability compensation, federal revenues would increase by $4 billion, it said.

CBO analysts say their options only "reflect a range of possibilities" and are not recommendations or a ranking of priorities. "The inclusion or exclusion of any particular option does not imply that CBO endorses it or opposes it," they wrote.

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As part of our commitment to those that have served, taxpayers will spend $100 billion in 2019 towards benefits programs for Veterans. Costs for these programs have more than quadrupled since the year 2000. Few programs of this size and importance have received less attention from a policy perspective.

The VA’s disability compensation system is complex, cumbersome and frequently difficult to navigate. The approval process can be frustrating and slow — from obtaining copies of military service records to undergoing a comprehensive evaluation known as the Compensation and Pension examination, which is used to assign a disability rating from 0-100 percent.

The exam itself was first conceived in the 1940’s. It has only been modified through iterative changes and may fail to properly acknowledge some of the most common issues facing today’s Veterans, such as post traumatic stress (PTS).  

Veterans who are dissatisfied with initial decisions often seek higher ratings. Despite real progress by VA in recent years, the backlog of appeals remains large and hundreds of thousands of Veterans wait on a system impeded by legislative restrictions and its own bureaucracy. This perpetuates an adversarial relationship between the Veteran and VA. Many Veterans who struggle to obtain an initial benefits’ decision become locked into a complicated process to prove their needs.

Few incentives exist for Veterans to improve their health status and decrease their disability rating. Under current policies, Veterans that improve may receive lower monthly payments. This also impacts Veteran's prospects in the workforce.

A recent study published in The National Bureau of Economic Research found that that changes broadening disability compensation eligibility were associated with a decrease in workforce participation among disabled Veterans. This lies in stark contrast to the large body of evidence suggesting that employment has a clear positive effect on Veteran's physical and mental well-being.

Disability compensation should be aligned with efforts to facilitate improvements in Veteran's health and financial security. To that end, we believe the following five policy principles should be considered by VA and the 116th Congress. These ideas would allow the VA to test new compensation models as they modernize an antiquated system:

1. Disability ratings should be updated to reflect contemporary workforce needs. The current system places a high priority on physical attributes necessary for manual labor and does not acknowledge present day opportunities for many disabled Veterans to hold jobs in an increasingly digital economy.
2. VA should make better use of its vast data to make more personalized disability compensation determinations. Leveraging what has become commonplace in the private sector, predictive analytic models can allow VA to tailor compensation more accurately. It may also be used to predict which Veterans will need more resources later in life due to individual characteristics or known disability profiles. Using these data to provide better initial determinations would allow VA to move away from a flawed and expensive appeals and re-rating process.
3. VA should utilize best practices in behavioral economics to incentivize decisions that promote well-being and financial independence. Veterans should be incentivized to access healthcare when needed (e.g. PTS treatment). There should be simpler and more efficient linkages between the disability and the healthcare systems. When appropriate, the disability system should be integrated with programs that provide service dogs, adaptive sports and other programs that help Veterans regain functional and financial independence.        
4. VA should facilitate savings plans in the form of an individualized retirement account to reduce financial uncertainty for Veterans unable to participate in the workforce. With defaults that favor saving, VA can make it easier for Veterans to plan for the long-term financial implications of returning from service with significant disability.  
5. The benefits program should offer a lump sum payment option. Lump sum payments can provide Veterans with the resources needed to buy a house, start a business, or make other decisions that require capital resources up front. Lump sum payments are also advantageous to taxpayers because they can reduce future liabilities and create greater financial certainty over long lifetimes.

Reforming Veterans benefits will be controversial, but necessary. If left as is, the current system is at risk of becoming financially unsustainable. Reactionary funding cuts would harm Veterans and further compromise public trust in upholding our responsibility to caring for our Veterans. The commitment Americans have to our Veterans is too important to forgo needed reforms.

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That many U.S. Veterans didn’t receive the educational benefits they were owed in recent months is inexcusable.

What would be an even greater outrage, however, is if the federal government allows these mistakes to persist.

The Department of Veterans Affairs must develop a clear plan to ensure GI Bill recipients receive their proper housing stipends and other educational benefits as soon as possible. The technology failures that reportedly caused thousands of Veterans to receive late or incorrect benefit payments in 2018 should be swiftly corrected.

There can be no more excuses.

So far, VA officials have offered little assurance that the situation is under control. After making a series of confusing statements, VA officials now say all GI bill recipients will receive the full housing payments and other benefits they are owed, retroactively if need be.

But while the VA committed to correcting some of its computer problems by Dec. 1, 2019, it still looks as if it will be many months before all Veterans are made whole.

That uncertainty is unacceptable for student Veterans who rely on precise benefit amounts to pay for tuition, food and rent.

The chaos is particularly uncalled for because the VA had a year to implement changes mandated by the Forever GI bill, as noted by U.S. Sen. Patty Murray, D-Washington, at a recent committee hearing. The agency has said changes to how housing payments are calculated under that bill precipitated the recent IT failures and delays.

Congress did the right thing by stepping in last month and setting a deadline for the VA to fix its backlog of incorrect payments. But the compliance date of Jan. 1, 2020 remains too far away — especially since the VA was supposed to have already implemented these changes months ago.

As Murray told VA Secretary Robert Wilkie last month, “These are basic tasks that the VA cannot get wrong.” Murray and U.S. Rep. Derek Kilmer, D-Gig Harbor, recently signed onto a letter calling for an inspector general investigation into the VA’s payment problems.

To their credit, both houses of Congress also passed legislation to ensure universities won’t penalize students if the VA misses a tuition payment.

Yet these are steps Congress should have never had to take in the first place. Nor do they fully address whether the VA will be prepared to roll out other new benefits mandated under the Forever GI Bill in the coming months. Those include a benefits extension for students enrolled in science, technology, engineering and mathematics (STEM) programs, which is supposed to take effect in August 2019.

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Earlier this year, the Pentagon changed the rules for troops who want to transfer their Post-9/11 GI Bill benefits to their dependents.

Most notably, the new policy will end transfers for service members who have been in uniform longer than 16 years, starting in July 2019. It also immediately put an end to previous exceptions that have allowed certain service members with more than 10 years in uniform to transfer the benefit without committing to serve four more years, including those who were unable to continue serving because of mandatory retirement or high-year tenure.

Defense Department officials have said the changes are “to more closely align the transferability benefit with its purpose as a recruiting and retention incentive."

“With these updates, the department addresses the intent of Congress and ensures the benefit is available for future service members,” DoD spokeswoman Jessica Maxwell in an email. She said the policy change will impact about 9 percent of active-duty service members, National Guardsmen and reservists.

The changes have been hotly contested by lawmakers and Veteran advocates, and after pushback, Defense Secretary Jim Mattis announced in September that none of the changes would apply to wounded warriors. Active-duty troops who have earned a Purple Heart for wounds in combat are now allowed to transfer their Post-9/11 GI Bill benefits to their family members whenever they want.

But more recently, Sen. Cory Booker, D-N.J., has introduced legislation that would scrap the DoD’s recent changes all together and open GI Bill transfer to Veterans who did not have dependents while on active duty.

Meanwhile, long-serving troops who want to transfer their GI Bill benefits to a spouse or child should plan on doing so before the July deadline kicks in.

“We understand that it will take some time for service members and their families to decide on transferring benefits, so by giving them a one-year window, we believe it will give them ample time to gather information and make decisions,” Maxwell said.

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Improved Pension with Aid and Attendance

First, John explains the VA’s Aid and Attendance benefit. If a Veteran served at least 90 days of active duty, with one of those days being during a period of war, that person is a “wartime Veteran.” If that wartime Veteran needs help with their activities of daily living, and the costs associated with that care outweigh the Veteran’s ability to pay for it, then the VA will potentially kick in some extra money.

Technically, this benefit is called the improved pension with aid and attendance, but most people just call it aid and attendance.

It’s not only available to the Veteran, but it is also available to the surviving spouse of the Veteran, if they were married at least one year, married to the Veteran at the time of the Veteran’s death, and not remarried.

This income can be a life-saver, especially if it makes it possible for the Veteran or survivor to live in a facility that can care for their needs.

The Changes

A few of the rules about eligibility for the Aid and Attendance benefit have changed. This includes clarification of the assets test, and a look-back period for any transfer of assets.

Clearly Defined Assets Test

This is a need-based benefit. In the past, the assets test for this benefit was very vague. One of the new rules is that there is bright line rule for net worth. There is now a clearly defined $123,600 limit on countable assets in order to qualify for this benefit.

John is concerned about how some of the changes are written. For example, a home is not a countable asset, but it is the home plus two acres. This means that folks who live on larger lots, or own extra land, will have a more complicated situation.

There is also a strange way that the VA is now calculating income as part of that net worth. In determining your assets, the VA will now look at something called your “income for VA purposes.” This takes your annual income, minus your unreimbursed medical expenses, and adds that to your net worth. This does not make any sense – there is no other context in which you included someone’s income in their net worth.

Adding A Look-back Period

The biggest change is that historically, the VA did not have a penalty for transferring assets. They now have a 3 year look-back period, similar to Medicaid. Any transferred that occurred in the 3 years prior to your application , any gift that happened during those 3 years, they can penalize you up to 60 months in the future.

The penalty period is calculated by taking the amount of the gift, and divide that by the maximum aid and attendance benefit for a single person with one dependent, which is about $2,170 per month. The VA won’t provide benefits for the number of months you’ve been penalized.

This only applies to gifts that are over the asset limit.

The maximum penalty can be no longer than five years.

This creates a tricky situation where you have to be sure that you wait at least the three years after transferring any assets or else you may find yourself penalized for longer than the look-back period.

What This Means For You

The big takeaway from these changes is that if you may be eligible for this benefit, you might need to do some advance planning. In the past, there was no reason to plan until you were going to apply for the benefit. Because of these changes, you might want to take some actions in advance to ensure you are eligibility for this benefit when the time comes.

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