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Why Veterans are Not Getting the Benefits They Deserve

“[T]he government’s interest in veteran’s cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Comer v. Peak (2009). However, the veteran’s benefits process is difficult, and veterans are often not getting the benefits they earned. Claims for benefits are almost always initiated pro se by veterans due to fee restrictions imposed by the United States Code §5904. That federal statute limits attorneys to a maximum payment of only one-hundred dollars for assisting in claims for veteran benefits. This results in a general lack of counsel in the veteran’s claims process and has often produced inequitable and unjust outcomes. Few pro se veterans achieve the best possible outcome when seeking benefits, and even fewer veterans frame their arguments with the skill required for the appellant courts to review the matter.

The Problem is Systemic

The level of procedural incompetence displayed by the VA is startling. Inspections by the VA Office of Inspector General to the VA Regional Offices in Baltimore, Anchorage, and Albuquerque uncovered error rates of 38%, 29%, and 36% in claims processed. In addition to general bureaucratic incompetence, veterans face a morass of rules and hurdles governing access to benefits and the review of claims denied by the VA. All too often veterans mistakenly believe that filing a notice of appeal with their local VA is sufficient, either through their own mistake or even, in some cases, through erroneous advice provided by VA employees. In Green v. Shinseki, the appellant filed his notice of appeal with the regional officer instead of the Court, and the time to file his notice of appeal elapsed. (Vet. App. Feb. 1, 2010). The court subsequently dismissed the pro se veteran’s claim as untimely even though “[a]t the time the appellant submitted his [notice of appeal] to the RO, he had 54 days before his 120-day appeal period expired”. The VA has historically been slow to process claims, and the department has even been reprimanded for inappropriately delaying the appeals of claimants. The problem of regional VA offices delaying appeals reached such proportions that the Veterans Court issued an Order directing that where “a self-represented party has misdirected… any other document required to be filed with the Court, the [BVA] will promptly provide the Court with notice, and a copy of” the misdirected document. CAVC Misc. Order No. 03-10, In Re: Self-Represented Parties’ Misdirected Brief and Other Required Documents (Apr. 2, 2010).[1] As a result of bad actors and ignorance, many pro se veterans are barely able to file their cases in a timely fashion. Due to the seemingly deliberate incompetence of the VA, some veterans have ascribed a new motto to the department: “Delay, Deny, and Hope They Die.”[2]

Why Veterans Need Lawyers

The bureaucracy of the Department of Veterans Affairs was an absolute mess prior to the late-1980s, and it was not until the formation of CAVC that veterans could even appeal their claim to benefits. Today, the VA claims process continues to be an intricate mess. And although veterans are not typically trained to navigate the complex process, most proceed pro se in applying for and appealing disability benefits. Consequently, veterans often fail to achieve the best possible outcome. And if a veteran is not satisfied with the VA decision, they may appeal the decision as a matter of right. Under 38 U.S.C. § 7266, a veteran has one-hundred twenty days to react to a notice of denial before the claim is terminated permanently under § 7292:

“any party to the case may obtain a review of the decision with respect to the validity of any statute or regulation or any interpretation thereof was relied on by the Court in making the decision.”

Decisions of the Board (BVA) are appealed to the United States Court of Appeals for Veteran Claims, which is not part of the Department of Veterans Affairs, and from there to the United States Court of Appeals for the Federal Circuit. Veterans have the right to appeal decisions regarding their claims to the highest court in the land. CAVC explained that “by necessary implication, [Federal Circuit] held that our jurisdiction over the Court of Appeals for Veterans Claims arises independently from subsections of U.S.C. § 7292].” Helfer v. West, 174 F.3d 1332 (Fed Cir. 1999). Moreover, the federal courts may review challenges to regulations and statutes that were not relied on by CAVC in making the decision.

However, while Equitable Tolling Doctrine once prevented the clock from “tolling” against severely disabled veterans who missed the statutory deadline due to mental or physical incapacity; nowadays equitable tolling has been dissolved by CAVC and Federal case law. See e.g., Russell v. Principi, 3 Vet. App. 310 (1992) (holding that 38 C.F.R. § 3.105 (a) is a valid regulation and the CAVC has jurisdiction to review a final BVA decision denying claims). The eradication of equitable tolling in proceedings before the Veterans Court creates a Kafkaesque adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain them. It is the veteran who incurs the most devastating service-connected injury who will often be the least able to comply with rigidly enforced filing deadlines. The merciless lack of equitable tolling doctrine effectively renders diminished veterans at the mercy of their own capacitates and an uncaring system.

The system is complex, and the VA does not make the process any easier. Unfortunately, there is very limited opportunity for attorney involvement in the claims process outside of pro bono representation. However, getting an attorney is still advisable because the VA can and should be reviewed by the courts. The department has consistently displayed a willful and wanton disregard for the well-being of our veterans, and that should be rectified. At Wasatch Defense Lawyers we value veterans! If you or a loved one is a military veteran, our firm offers advice and discounted legal representation for non-claims related legal work. To all our veterans out there:

Thank You for Your Service!

[1] http:// www.uscourts.cavc.gov/docum ents /2010-03_Self_ Represented_Parties.pdf

[2] 60 Minutes, Why the VA Frustrates Veterans: Two Wars Are Slowing the Large Bureaucracy, Delaying Benefits, CBS News, Jan. 3, 2010, http://www.cbsnews.com/stories/2010 /01/01/60minutes/main6045148.sh tm1.

Craig R. Chlarson