Va's Trojan Horse Legislation Hurts The Veterans It Claims To Help

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VA'S TROJAN HORSE LEGISLATION HURTS THE VETERANS IT CLAIMS TO HELP "The bill is a Trojan horse that introduces a number of anti-veteran and anti-lawyer measures under the guise of helping speed the veterans disability claim process."

NOTE from Larry Scott, VA Watchdog dot Org ... We first learned of this proposed legislation here:

SHINSEKI'S PROPOSED LEGISLATION COULD NEGATIVELY IMPACT MANY VETERANS -- "Getting rid of the primary basis of appeals and running off the lawyers will surely allow VA to get rid of all those pesky claims on remand."

http://www.vawatchdo.../nf052810-5.htm

Then:

SHINSEKI'S PROPOSED LEGISLATION BLINDSIDES VA, DOJ ATTORNEYS -- U.S. Supreme Court brief cites VA Watchdog dot Org as the only source for the legislation. One observer blasts Secretary Shinseki's secrecy.

http://www.vawatchdo.../nf060710-3.htm

Now, well-known veterans' law professor Thomas J. Reed gives us his thoughts on the legislation.

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Trojan horse bill hurts veterans it purports to help

DELAWARE VOICE • By THOMAS J. REED

http://www.delawareonline.com/article/2010

0725/OPINION07/7250311/1004/OPINION

The fireworks and barbecues of our most recent Independence Day are but a smoky memory now, but they likely compare little with the celebrations due in 2011, when the United States will mark its 225th anniversary of American independence.

Before that patriotic moment arrives, however, the next year may bring significant changes to the lives of our veterans, those hard-fighting people whose sacrifices are so entwined with our annual celebrations of freedom.

The Department of Veterans Affairs has a pending bill before Congress that will change veterans benefits law in a way that hurts our veterans' rights to compensation for wounds and disease. The Veterans Benefits Improvement Act of 2010 sounded positive enough when Secretary of Veterans Affairs Eric Shinseki sent the major piece of legislation to Congress on May 26.

The bill is a Trojan horse that introduces a number of anti-veteran and anti-lawyer measures under the guise of helping speed the veterans disability claim process.

The veterans claim process has seven steps. A vet must file a written claim application in a VA regional office to start the process. The process ends -- if it goes that far -- with an appeal before the U.S. Court of Appeals for Veterans Claims, a Washington-based federal appellate court. There is a jungle of rules and practices affecting the pace of a decision.

When a vet's claim is denied by the VA regional office, the vet may appeal that denial to the Board of Veterans Appeals, a VA internal review body. A veterans law judge conducts a hearing -- which can take a year to get scheduled -- and then issues a written decision. The Veterans Benefits Improvement Act would eliminate the statutory requirement that veterans law judges must explain the basis of, and reasoning behind, their decisions. Shinseki's report claims that relieving judges of this writing requirement will speed up decision-making, but the court cannot review a veterans law judge's decision adequately without knowing how the judge reached a decision. This is a retreat to the loose standards of the board in the 1980s. When the basis for a decision is not spelled out, a vet cannot argue why the veterans law judge was wrong.

Veterans dissatisfied with a regional office decision have one year to file a written notice of disagreement with the bad decision. Failure to file that notice within one year costs veterans all appeal rights. The bill will shorten the one-year appeal period to 180 days.

The bill accomplishes nothing by way of speeding up appeals by cutting the appeal period in half, despite the VA's claims that it will do so. The board dismisses late appeals and the Court of Appeals for Veterans Claims loses the right to review a bad decision that misses the appeal period. A 180-day appeal period will cut off meritorious appeals that would be timely under current law and does not speed up the board's review process.

Finally, the bill curbs attorney fee awards by the Court of Appeals for Veterans Claims by restricting awards to cases where the veteran ultimately succeeds in recovering arrearages. Today, a lawyer who overturns a meritless board decision gets an immediate hourly rate fee award from a separate fund. The court normally sends the case back to the board and regional office for a second bite at the apple. It will take two or more years to correct the errors originally made and award the vet compensation.

If the bill becomes law, the immediate payment of fees stops and the lawyer must wait years to be paid. If the vet does not get an award of compensation from the Regional Office, the lawyer will get nothing. Consider this: how many attorneys can afford to work on a case and then wait years for a paycheck? Only those lawyers willing to take a vet's appeal pro bono with no expectation of payment.

A small number of civic-minded attorneys and law school veterans law clinics do their best to represent indigent vets today. There are not enough pro bono lawyers knowledgeable about veterans benefits law to take all 4,000 appeals filed with the court annually. That will leave unrepresented veterans to go up against the VA's own highly effective appellate advocates, who will grind up any chance veterans might secure their benefits.

The vast majority of Americans are oblivious to the system veterans must maneuver to secure their benefits -- or fight for benefits they feel have been wrongly denied. The current system is not without its faults -- it is riddled with red tape and bureaucracy -- but the Veterans Benefit Improvement Act of 2010 doesn't do anything to improve the VA claim process.

Our veterans fought for the American way and its bedrock notion of fundamental fairness. Their legal system deserves better. They deserve better.