With the spring seminar behind us, NOVA has plenty of business to address in the coming months. The time is fast approaching for VA to respond to the Federal Circuit’s order in our challenge regarding VA’s change in policy regarding Board hearings. We owe a special thanks to Ken Carpenter for handling the monumental task of reviewing thousands of BVA decisions rendered over the past several years to determine the extent of VA’s policy change. VA assured the Court that it had rescinded its policy and that Board hearings are complying with the regulation. However, research indicates that as late as January 8, 2013, Board decisions continued to assert that 38 CFR 3.103(c)(2) “does not apply to hearings before the Board.” To their credit, VA has taken significant steps in developing a plan to remedy this issue, which could impact thousands of veterans. Details of the Proposed Plan are presented below. Roman Martinez of Latham & Watkins LLP, who is handling this case on a pro bono basis for NOVA, has done a tremendous job in recognizing this deficiency and identifying a remedy. I cannot say enough about Roman and his firm’s hard work on this case.
Another challenge we face is access to VA’s electronic record system. VA has told us repeatedly that access for our members is forthcoming, yet no firm date has been projected for when we will be granted that access. To complicate matters, VA has yet to define the extent of training required for this access. Reportedly, the TRIPS training will be modified, but that, too, has not been clarified. Worse, VA has continued to maintain its position that we will need an electronic access card and card reader to log onto their system. Of course, implementation of this step will require background checks and reams of paperwork. So despite its assurance to Congress that the Agency would model its system after that of the Social Security Administration, VA continues to forge ahead in directions that will only guarantee further delays in our gaining access to the records we need to represent our clients.
These and several other issues demonstrate to me that VA is determined to propagate an unhealthy, adversarial relationship with private representatives. Even though several contacts within VA assure us that issues can be resolved through discussion, clearly the Agency’s expressed attitudes and actions in these matters do not mirror that posture. Such circuitous routes are unfortunate, given that these issues directly affect the daily lives of our veterans and how they are represented by us. The situation is even more regrettable given that VA claims to have limited resources to attend to our veterans’ needs. Yet the Agency chooses to use those resources to frustrate our earnest efforts at fair representation for all: denying accreditation to agents if they work in a law office, prohibiting Attorney Fee Coordinators (or anyone in VA for that matter) to respond to inquiries from representatives, withholding attorney contingency fees by not honoring waivers from the clients, and so forth. It is apparent that additional legal challenges are necessary for these matters, and others, to be resolved once and for all so we can represent our clients on a level playing field. A pity, really, that VA has resources to burn on stall tactics, while nearly a million claimants wait for a resolution to their claims.
On May 20, 2013, VA responded to the U.S. Court of Appeals for the Federal Circuit (the Court’s) March 21, 2013, Order To Show Cause why sanctions should not be imposed on VA (Order). In accordance with the Order, and after consulting with NOVA, VA provided a plan for identifying and rectifying harms caused by VA’s failure to abide by its representations to the Court that the Board of Veterans’ Appeals (Board) would not apply the invalid rule during the period from March 5, 2012, until the repeal of the invalid rule became effective, which occurred June 18, 2012.
VA’s Response consists of: (1) a Proposed Plan for identifying and rectifying the harms caused by VA’s failure to abide by its commitment to cease applying the August 23, 2011, amendments to the Board hearing procedures (2011 Rule); and (2) a Proposed Notice offering individual relief to potentially affected appellants.
In its Order, the Court identified four concerns which it suggested VA may wish to address in its response. Order at 13-14. VA’s Proposed Plan addresses each of these concerns as follows:
1) VA proposes to provide individual notice of the problem to every veteran who, during the relevant time period, had a case that may have been affected by the Board’s application of the 2011 Rule.
VA will issue a Notice to appellants whose cases VA identifies as potentially affected from August 23, 2011, when VA promulgated the 2011 Rule, up to the date this Court issues any order approving the Proposed Plan. VA will continue to review new Board decisions through the first quarter of 2014 and will issue the same Notice to any appellant identified through such review.
2) VA intends to conduct reviews of the cases heard or decided by the Board during the relevant time period, and take appropriate corrective action.
As described in Part I of the Proposed Plan, VA will use search terms in a Westlaw search to identify potentially affected decisions. From the resulting set, VA will issue a Notice to any appellant who did not receive a full grant of relief and whose decision remains within the Board’s jurisdiction (i.e., the decision has not already been appealed or remanded). Recipients of the Notice may request vacatur of the potentially flawed decision and a new Board decision, including an opportunity to appear for a new hearing and submit new evidence. In its new decision, the Board will apply the requirements of 38 C.F.R. § 3.103(c)(2) and take any measures necessary to remedy the prior application of the 2011 Rule.
3) VA’s Proposed Plan will satisfy or remedy each of its commitments to this court and to NOVA, including its commitments not to apply the 2011 Rule and to rectify harm caused thereby.
Through representations to this Court and to NOVA, VA committed to cease applying the 2011 Rule as of March 5, 2012, and to rectify any application of the 2011 Rule after that time. VA understands and appreciates the significance of those commitments and deeply regrets its failure to abide by them. VA’s Proposed Plan offers relief to any appellant identified as potentially affected by application of the 2011 Rule, from the date of its promulgation to the date of any decision of this Court approving the Proposed Plan. Extending relief to this date is an effort to ensure that any possible harm caused by application of the 2011 Rule after March 5, 2012 is rectified. To further minimize the possibility of ongoing harm,
VA will conduct quarterly reviews of new Board decisions through the first quarter of 2014 and issue a Notice to any appellant it identifies through such reviews.
4) VA’s Proposed Plan will address any procedural and timeliness hurdles that may impact affected veterans who seek redress for the harms caused by the invalid Rule, including those who seek redress directly from VA.
Under VA’s Proposed Plan, VA will send all potentially affected appellants a letter offering to vacate the prior Board decision and to provide them with a new hearing and an opportunity to submit new evidence followed by a new decision in their case. Therefore, any appellant whose prior Board decision is no longer appealable to the Court of Appeals for Veterans Claims will be afforded a remedy. Further, if VA identifies any potentially affected decisions which have already been appealed to the Court of Appeals for Veterans Claims, it will offer to submit a Joint Motion for Remand so that the Board may correct any application of the 2011 Rule. Upon remand to the Board, the appellant will have an opportunity to submit additional evidence and appear for a new hearing.
VA has collaborated with NOVA in carefully drafting this Proposed Plan in an effort to ensure that any potentially affected appellant receives an opportunity for a new decision and a new hearing, including an opportunity to submit additional evidence. The Proposed Plan offers this remedy to any appellant who may have been harmed by application of the 2011 Rule, including application of the 2011 Rule after March 5, 2012. Therefore, VA believes that this Proposed Plan should render sanctions proceedings unnecessary.
Roman Martinez of Latham & Watkins LLP has reviewed the VA’s Proposed Plan and Proposed Notice, and has indicated NOVA’s intent to support the proposal.
The top Republican and Democrat on the House Committee on Veterans’ Affairs are demanding more information from defense Secretary Chuck Hagel about lost Army field records from the wars in Afghanistan and Iraq, the subject of a ProPublica investigation last year.
In an unusually detailed letter sent Friday to Hagel, Reps. Jeff Miller, R-Fla., and Michael Michaud, D-Maine, said the Defense Department’s response to an earlier request about why records are missing — and what the military is doing about it — didn’t go far enough.
“Congress must have a clear understanding of the extent of the lost records in order to safeguard the best interests of our service members and veterans,’’ the letter says.
The 12 questions posed to Hagel in the letter focus largely on the Army because it has the largest records deficit. Among other things, the congressmen want to know what happened to operational records for the 1st Armored Division and the 82nd Airborne Division and what is being done to reconstruct them.
In November, ProPublica and the Seattle Times reported that they were among numerous Army units that had lost or failed to keep battlefield records as required, making it harder for some veterans to obtain benefits and for historians to recount what actually happened.
“Operational records can be used to track the history of our nation’s military, plan for future operations and support innovative medical research,’’ Miller and Michaud wrote to Hagel.
In addition to chairing the veterans’ panel, Miller sits on the House Armed Services Committee, which has direct oversight responsibility for the Defense Department and service branches.
The department did not return a phone call seeking comment.
Focus on S. 748 and Establishment of Look-Back Period for VA Benefits
The National Academy of Elder Law Attorneys (NAELA) was invited by the Senate Committee on Veterans Affairs to provide written testimony for a hearing on pending benefits legislation. NAELA’s written testimony focuses on the Veterans Pension Protection Act (S.748), a bill that calls for a three-year look-back period for VA benefits. NAELA’s testimony explains that a look-back period of any length will not prevent the financial exploitation of veterans and instead, will create more uncertainty in the claims process.
On April 17, 2013, Senators Burr (R-NC) and Wyden (D-OR) reintroduced a bill to establish a three-year look-back period for the VA Aid & Attendance pension program and to create a penalty period for assets transferred in this time frame. The legislation was introduced in response to a Government Accountability Office (GAO) report issued in May 2012 titled “Improvements Needed to Ensure Only Qualified Veterans and Survivors Receive Benefits.” The report identified several suggestions to strengthen the VA pension program, including better coordination with the VA’s fiduciary program and clear guidance for claims processors. However, the Wyden/Burr legislation focuses solely on establishing a look-back period.
As the GAO report notes, elder law attorneys have assisted with this study and have reported their concerns regarding some current practices that put our nation’s veterans at risk. NAELA members have also been exposed to instances through their clients where individuals have been given inappropriate advice on the rules related to gifts and transfers of assets, which may result in the delay of Medicaid eligibility in order to secure VA benefits.
NAELA analyzed S. 748 and its position is that the bill currently fails to address areas of concern raised during the Special Committee on Aging’s hearing and in the GAO report. NAELA also has concerns regarding VA’s ability to administer a look-back period without increasing the already lengthy wait time and complex VA application process. However, NAELA is committed to finding reasonable solutions that will better protect aging veterans and their families from financial exploitation, while preserving their access to their rightful pension.
The testimony addressed three primary areas: concerns with S. 748 and proposed changes; accreditation for representation of veterans and proposed solutions; and how gray areas in existing pension rules attract “scammers” and proposed solutions.
by Stuart Pase, President, Health Benefits Professionals & Association Health Programs
In talking with NOVA members, I often hear comments about how running a business takes time away from the practice of the law. NOVA understands that conflict, and that’s why we’re trying to make the business of law simpler and easier, so you can focus more of your attention on practicing the law.
With that in mind, in 2013 NOVA conducted a Member Needs Assessment to identify areas in which members would like to see the organization develop new services. Many members noted the high cost of insurance and asked that NOVA consider creating a program that would give members access to a broader range of insurance providers at reduced rates. After more than a year of work, that program is now in place for NOVA members.
The NOVA-Sponsored Insurance Program, administered by Association Health Programs (AHP), offers access to only national “A” rated carriers in a wide range of coverage areas:
Why did NOVA choose to partner with AHP? Because AHP functions as a broker in the insurance marketplace and has established arrangements with all the national carriers for over 23 years, and is easlth Health Care Reform ready for our members. That means AHP:
When conducting its due diligence, members of NOVA’S Member Benefit Partner Committee sent their current health insurance and professional liability insurance policies to AHP to compare their current policies and premiums to what would be available in the marketplace through AHP. The Committee members learned that they could all obtain the same professional liability coverage as they currently had at a reduced rate, and that on the health insurance side, depending on the specifics of the firm, could move to a similar or better policy and, on average, save several thousand dollars annually on premiums.
Could this be a good deal for you? I’d suggest taking the same approach as the Member Benefit Partner Committee. Send your current health and business insurance policies to AHP and see if they can provide the same or better coverage for a better price. You have nothing to lose and potentially much to gain in terms of more choices and more competitive rates. Moreover, you have the flexibility to design your own plans, choosing the coverage and optional benefits that make the most sense for you. Please contact: 888-450-3040, ext. 226 or go to our link www.associationpros.com/assswoc/nova.
NOVA members want to focus as much of their time as possible on practicing the law. We hope that this new sponsored insurance program will give you more time to do just that.
On April 25, 2013, the House Veterans’ Affairs Committee announced a coordinated legislative effort to help the Department of Veterans Affairs (VA) in its efforts to address the growing backlog of disability claims. The 10 pieces of legislation seek to help VA accomplish its goal to eliminate the backlog by 2015.
"We need to address the unacceptably large backlog of claims in order to get veterans the benefits they’ve earned faster," said Rep. Mike Michaud. "The VA has set an aggressive goal of ending the backlog by 2015, and our efforts are focused on helping them accomplish it. These bills represent a coordinated effort to put forth a pragmatic, solutions-oriented approach. A number of these initiatives already enjoy strong bipartisan support and are backed by veteran advocates."
The 10 measures that have been, or will be, introduced and their impact are summarized below:
VA Claims, Operations and Records Efficiency Act (Rep. Ann Kirkpatrick) – requires the Department of Defense (DoD) to provide certified and complete electronic records to VA within 21 days.
IMPACT: Would substantially reduce the amount of time spent waiting for DoD to provide information in a timely manner.
Claims adjudication Centers of Excellence (Rep. Mike Michaud) – requires the Veterans Benefits Administration (VBA) to establish a pilot for Conditions Adjudication Centers of Excellence that would focus on the 10 most complex and time-consuming medical conditions.
IMPACT: The pilot would use the highest performing offices to adjudicate the most difficult medical conditions, such as post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI), encouraging VA to specialize claims processing by condition, reduce the time it takes to adjudicate these conditions, and decrease the error rates on difficult claims.
Pay veterans as medical conditions are adjudicated (Rep. Dina Titus) – requires VA to pay for medical conditions as they are adjudicated in an electronic system.
IMPACT: Currently, veterans receive payment when all medical conditions within a claim are fully adjudicated. This legislation would require VA to pay veterans as individual medical conditions are adjudicated, which will pay veterans at a faster rate.
Expedite claims processing by educating veterans on the quickest route to receive their decision (Rep. Beto O’Rourke) – provides veterans with information regarding VA’s timeliness for adjudicating claims in different formats, such as paper application or online, using the Fully Developed Claims program.
IMPACT: Would encourage and educate veterans to use methods that may increase the timeliness of their claims.
Encouraging the automation of certain VA claims (Rep. Ann McLane Kuster) – requires VA to provide an annual report to list those medical conditions that are processed in an electronic automated fashion, the feasibility/consideration for adding additional medical conditions, and any barriers barring VA from adding those medical conditions that are not automated.
IMPACT: The reporting would require VA to consider whether and how any of the medical conditions it adjudicates could be automated or simplified. Any work that can be automated or simplified will allow VA to focus limited resources on the more challenging workload.
H.R. 1521 (Rep. Sean Patrick Maloney) – extends VA’s authority to contract for medical disability examinations by five years.
IMPACT: VA’s ability to have contractors provide medical exams increases the availability and timeliness of those exams. VA needs the support of the contract exams to reach the goal of processing all claims within 25 days by 2015. Without this reauthorization, VA medical examinations would overwhelm the VA health-care system.
H.R. 1623 (Rep. Gloria Negrete-McLeod) – requires VA to provide numerous data points in an online setting that would better detail the backlog, the timeliness and accuracy of VA regional offices, and timeliness and accuracy of adjudicating specific medical conditions.
IMPACT: The reporting would provide VA, the public, and policy-makers with further clarity on the backlog and specific claims that are more challenging. This additional level of detail was not available in the legacy paper system. VA indicates that this level of clarity should be available in VBMS. This would ensure that VBA builds in the capability of understanding the workload at this level of granularity and ultimately may lead to gains in efficiency by better understanding the backlog and ways to address it.
Require VA to maximize the use of private medical evidence (Rep. Tim Walz)– amends title 38, United States Code, section 5103A(d)(1) to provide that, when a claimant submits private medical evidence, including a private medical opinion, that is competent, credible, probative, and otherwise adequate for rating purposes, the Secretary shall not request a VA medical examination.
IMPACT: Would conserve resources and enable quicker, more accurate rating decisions for veterans.
Require annual reports on VA regional offices that fail to meet backlog reduction goals (Rep. Grace Meng) – requires annual reports on VA regional offices (VAROs) that are not meeting their administrative goal of no claim taking longer than 125 days with 98 percent accuracy. Details would be required explaining why the office did not meet the goal, what they need to meet it, and how failure to meet the goal was considered with regard to the specific VARO director’s performance appraisal.
IMPACT: The reporting requirement would serve as a motivator for leadership to meet their administrative goal. It would also provide additional information on the claims backlog at VARO levels. Such information could assist policy-makers in considering additional solutions to reduce the backlog and provide better services to veterans.
Require detailed reporting on VA information requests to federal agencies (Rep. Raul Ruiz) – requires VA to track all information requests to other federal entities.
IMPACT: Would require VA to provide quarterly updates to Congress on the timeliness of other agencies in fulfilling their information requests. Veterans’ claims decisions are often untimely because VA must wait for other agencies to provide information. By collecting more definitive data, VA and Congress can work to reduce these bottlenecks.
NOVA Webinar on 3.156 Set for June 27: Register Today!
NOVA will hold its next webinar on the topic of “38 CFR 3.156 – New & Material Evidence.” This 90-minute webinar, hosted by NOVA Treasurer Matthew Hill and presented by Veterans Law Attorney Barbara Cook, will cover the history of 38 CFR 3.156, how to use new and material evidence to get an earlier effective date in both finally adjudicated and pending claims, and relevant case law.
Please join us on June 27 to learn more about the potential impact of 38 CFR 3.156 on your practice.
New NOVA Website Coming this Summer
NOVA is pleased to announce the launching of our new website this summer. The website will contain a Members-Only section wherein NOVA members can renew their memberships, update their account and profile, access the Document Library (a.k.a. the Wiki), have full access to the NOVA Bulletin Board, and view both the latest Week in Reviews and monthly newsletters -- all with ONE username and password! It is our hope that this new website, designed by Ironistic.com, will make your membership benefits more easily accessible and user friendly, and will expand and build on the membership network already in place on the NOVA Bulletin Board. Keep an eye out for future notices and updates regarding the new website, and we thank you in advance for your patience during this transition.
Gala Photos Available for Purchase
Photographs from our gala are now available for purchase courtesy of our photographer, Jim Tkatch. To visit his website and make your selection, click here.
Order Your Copy of A History of NOVA
A History of NOVA, which chronicles the organization from 1993 to 2013, is now available to purchase for $10. The book includes an appendix containing NOVA members’ contributions to the jurisprudence of veterans’ law. If you would like a copy, please write a check to the National Organization of Veterans’ Advocates, Inc. and indicate “NOVA History” in the memo section. Please send your payment to the attention of Cathy Cuddy at NOVA, 1425 K Street NW, Ste. 350, Washington, DC 20005.
Upcoming San Diego/Pittsburgh Conferences
This year, NOVA’s Fall Conference will be held in San Diego on September 26-28, 2013 at the Westin Gas Lamp Quarter. The 2014 Spring Conference will be held in Pittsburgh at the Omni William Penn Hotel on April 24-26, 2014.
Fast Letter on ACE Initiative Available on WIKI
Attention members! A Fast Letter (No. 12-22) on the Acceptable Clinical Evidence (ACE) initiative is now available on Wiki. Of particular note are the ACE Guidelines enclosed with the fast letter. For those unfamiliar with the ACE initiative, background is provided here, as excerpted from the fast letter:
“When a Veteran files a claim for disability benefits, Veterans Benefits Administration (VBA) personnel review the claim to ascertain whether the record contains the medical evidence necessary to render a decision. If VBA personnel conclude that a medical examination or opinion is needed, they request a Disability Benefits Questionnaire (DBQ) from the Veterans Health Administration (VHA) using the Compensation and Pension Record Interchange (CAPRI) system.
VBA and VHA have collaborated to implement the Acceptable Clinical Evidence (ACE) program. Under ACE, VHA clinicians complete a DBQ by reviewing existing paper and/or electronic medical evidence and can supplement it with information obtained during a telephone interview with the Veteran. This alleviates the need for the Veteran to report to an in-person examination. ACE Guidelines (see Enclosure) explains the details of the new procedure. The ACE process is not available for use by non-VHA Compensation and Pension (C&P) examiners, such as QTC, because those individuals do not have electronic access to VHA treatment records.”
Please check out this valuable resource the next time you visit the Wiki.