Veterans’ Disability Claims
For most of the 20th Century, the largest independent agency in the United States, the U.S. Veterans Administration (now called the U.S. Department of Veterans Affairs or the “VA”), operated free from judicial oversight. This unique status lasted until the Veterans Judicial Review Act of 1988 (the “VJRA”). As the House Committee on Veterans Affairs, which consistently resisted efforts to change the status quo, observed at the time, “The Veterans Administration stands in splendid isolation as the single, federal administrative agency whose major functions are explicitly insulated from judicial review.”
Veterans’ law has undergone a dramatic change over the 27 years since passage of the VJRA. The VJRA has transformed veterans law by allowing those applying for federal veterans benefits to appeal their claims to a federal court. Thus, claimants have a new forum – another bite of the apple – in which to win entitlement to benefits.
Statistics maintained at the higher levels of decision making on claims for benefits, the Board of Veterans Appeals (“BVA”) and the U.S. Court of Appeals for Veterans Claims (“CAVC”), demonstrate that since passage of the VJRA, the chance of ultimately being successful on a claim has greatly increased. Just as significantly, the percentage of BVA appeals that were remanded to a VA Regional Office because of the need for further evidentiary development and readjudication mushroomed after the VJRA. Many of these remands undoubtedly resulted in an award of benefits.
The bottomline is that, before the VJRA, the BVA would consistently deny benefits in over two-thirds of all appeals. For each fiscal year since the VJRA, it has consistently denied benefits in a much lower percentage of all appeals. There can be no doubt that many VA claimants have been granted the benefits they need and deserve in circumstances in which the agency would have left them without benefits in the days before the VA was subject to judicial oversight.
But the statistics reveal another problem that is pervasive still today. Although the VA is obligated to assist claimants in obtaining the evidence necessary to substantiate their claims, the volumes of decisions by the BVA and the CAVC are littered with thousands of cases in which each was forced to send claims back to the VA Regional Office because the Regional Office had failed in its duty to assist the claimant.
It’s not that regional offices never comply with their duty to assist. In fact, they often do comply. The point is that it is simply not wise to rely on the overworked regional offices to always comply completely with their duty to assist. The impact of the wars in Iraq and Afghanistan has exacerbated this problem by increasing an already large backlog of VA claims and appeals. Veterans of these wars have flooded the VA with new disability claims at the same time the agency is being pressed to correct errors in the thousands of older cases.
Even if the regional offices were to improve in gathering the necessary evidence, veterans would still likely be better served by hiring their own advocate and being pro-active in obtaining evidence to support a claim. Being proactive increases the probability that the claim will be granted, especially when it comes to medical evidence. In a disability claim, the most important part of the VA duty to assist involves scheduling the veteran for a VA medical examination to obtain a diagnosis of the claimed disability and obtain a medical opinion addressing whether the claimed disability resulted from an event, disease, or injury that occurred during the claimant’s period of military service. The VA usually turns to the physicians employed by the VA for both the medical diagnosis and the medical opinion.
There is no way to know beforehand what these VA physicians would conclude if they have a clean slate on which to write. But if the veteran already has, or can obtain from a private physician, the medical diagnosis of the current medical condition and a medical opinion linking that current condition to the period of military service, and the veteran submits these documents with or shortly after the claim has been filed, it will substantially increase the chance of success.
One of two events may occur. The VA may accept the evidence and grant the claim without ever sending the case to a VA doctor. Or, the VA may nonetheless schedule the veteran for a VA medical examination and obtain a medical opinion from its own physicians. But the veteran still has an advantage. The supporting medical evidence admitted by the veteran will already be a part of the record and it is undoubtedly more likely that VA physicians will agree with pre-existing medical evidence that supports the veteran’s claim than disagree with an existing, credible medical opinion.
Effective advocacy is exceedingly important to determine what type of evidence is needed to win the claim, and working with the claimant to obtain and submit that evidence. These are time-consuming activities, and relying upon VA Regional Offices to comply with their duty to assist can often be problematic and not in the best interests of the veteran.
