VA appeals reform bill strips due process from veterans

With a burgeoning Veterans Affairs (VA) appeal backlog Congress and the VA, as well as a few Veterans Service Organizations, have been trying to develop a proposal to streamline the process and attack the appeals backlog. Veterans Appeals Improvement and Modernization Act of 2017 (HR 2288) that recently passed the House was the result. As often happens when something is drafted by committee, the result is less than stellar. In this case, HR 2288 strips important due process rights from veterans.

Section 2(e) of the bill limits the VA’s “duty to assist” the veteran to cases before the Agency of Original Jurisdiction, (AOJ) or, as it is known colloquially, the VA Regional Office. Once the appeal is filed, the duty to exist the veteran no longer exists. In veteran’s cases, unlike other federal adjudication systems, no discovery process exists.

{mosads}The Congressionally mandated duty to assist has served as an somewhat inadequate substitute. HR 2288 and the Senate version (S.1024), strips that duty to assist from the veteran at the time he or she files an appeal to the Board of Veterans Appeals.

The timing of this action is critical, since unlike other federal adjudication systems, veterans are not allowed to hire attorneys until the appellate stage. Therefore, a veteran is unrepresented during the initial claim process. The result of this legislation is that once the attorney is hired, he or she is deprived of the very tool needed to obtain documents necessary for the appeal.

The duty to assist, as originally crafted by Congress, required the VA Secretary to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit. This has often been considered an important due process requirement. Since the VA system does not allow discovery and the Secretary has access to all of the documents held by the federal government, this duty has not only streamlined appeals but resulted in more favorable outcomes.

Notably, the Government Accountability Office found that even under the current system, 41 percent of the remands from the Board to the Veterans benefits Administration’s Regional Office was due to their error. This gives little confidence to the impression that the Regional Office will properly develop the record.

Vietnam Veterans of America, although not invited to give oral testimony at the hearing, filed the following written comments opposing the bill.

“The bill creates a system where a Veterans Law Judge (VLJ) may deny a claim because she does not have the duty to assist in gathering additional relevant federal documents necessary to get the claim granted. Although the veteran will have the ability to file a supplemental claim at the AOJ [Agency of Original Jurisdiction or the Regional Office], it hardly seems like a pro-veteran system where an adjudicatory body knows of possible helpful information for a claimant, but is not able to act on this knowledge in a helpful way to the veteran. Under this new framework, the pro-claimant system would deteriorate and it is nonsensical for a VLJ to receive additional evidence for consideration, but not be able to act in the veterans favor once receiving this evidence.”

HR 2288 is a bad bill that only make it easier for the VA to deny claims. Without the duty to assist, the veteran and his or her representative is left with the Freedom of Information Act as the only means to obtain critical documents. This process often takes months or years. Additionally, the veteran will have to absorb the cost of research and copying. While the VA currently will obtain documents such as medical records from non-federal sources, that right will evaporate at the appellate stage. Veterans will have to obtain those records themselves and pay the significant research and copy costs that are routinely waived for the VA.

The support of the American Legion, the Veterans of Foreign Wars and the Disabled American Veterans for HR 2288 is disheartening. Notably, they participated in the working VA working group that drafted the legislation. While pride of ownership is somewhat understandable, their refusal to protect the duty to assist rises to the level of a betrayal of the veterans.

Now they support the bill because “appellate reform” is a popular sound byte. This ignores the reality of the problem. The reform should actually solve the systemic problems within the VA; this bill does not. Instead, it makes a bad system worse.

John B. Wells is a retired Navy Commander. After retirement, he became an attorney practicing military and veterans law. He is Executive Director of the nonprofit Military-Veterans Advocacy, Inc.

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