Our highly anticipated Spring Conference is nearly upon us. In addition to the excellent educational opportunities, we are gathering to celebrate NOVA’s 20 years of high quality advocacy training. Many individuals have unselfishly given their time and talents to make this a memorable event. The founding members will be recognized, a history will be presented, awards will be given, and we will hear from a well known combat journalist, who will tell us about the sacrifices made by the Veterans we serve. I hope to see many of you there.
Also next month is the CAVC Judicial Conference, which occurs just prior to our seminar. Whether you practice before the Court or not, attendance at this event will help improve your advocacy skills and your understanding of the entire VA claims process. Again, I hope to see many of you there.
As you may be aware, David Hobson, our executive director, is ever-present in Washington meeting with VA leadership and on the Hill getting to know staffers and providing assistance when requested. This past week, NOVA was asked to provide written testimony to the full committee on Veterans’ Affairs in the House for a hearing held March 20, 2013 entitled, “Focusing on People: A Review of VA’s Plans for Employee Training, Accountability, and Workload Management to Improve Disability Claims Processing.”
Needless to say, we could not pass up such an opportunity. Rather than bash VA’s employees and workload practices, we reiterated the need for VA to transition away from a paper-based system to an electronic format, with full access available to advocates who represent veterans. We also advised Congress that VA has promised us such access, but at this moment we still have no identifiable policy as to how we obtain access and what will be available on line. Despite its public assertions to the contrary, VA does not seem to be taking steps to model this access after the Social Security Administration system for client file access.
NOVA stressed that VA could increase its claims processing accuracy and timeliness through electronic filing of evidence and could save valuable resources by eliminating the need to have countless individuals feebly attempt to give claim status via telephone or through the IRIS system. These resources could be better utilized to help develop and adjudicate claims, rather than giving the Veteran and his or her representative misleading and inaccurate information. Such a concept!
I look forward to seeing many of you next month. Please make plans to be there if you can.
Orders VA to Show Cause Why Sanctions Should Not Be Imposed on the Responsible Officials
On March 21, 2013, the U.S. Court of Appeals for the Federal Circuit ruled in favor of NOVA in its case against VA involving due process rights for military veterans before the agency’s Board of Veterans’ Appeals (BVA). In its Order, the Federal Circuit confirmed that VA acted unlawfully in 2011 when it promulgated a regulation that eliminated certain procedural and appellate rights for veterans appearing before the BVA. The Court also rebuked VA for failing to live up to its promise to stop enforcing its unlawful rule on March 5, 2012. In an extraordinary move, the Court ordered VA to show cause why sanctions should not be imposed for the failure to keep its word.
As a result of VA’s actions, a substantial number of cases may have been decided using an illegal rule that deprived veterans of critical due process rights, potentially costing those veterans the benefits they had earned. The Order called VA’s conduct “entirely unacceptable,” highlighting its harmful effects on NOVA, its attorneys, the Court, and most importantly of all the veterans affected by the illegal rule.
As the Order explained, “[t]he unwarranted denial of benefits means real-world consequences to veterans. Promises of hypothetical relief do not pay for food or provide needed medical care.” The Order went on to note that “VA’s conduct and written communications refute its assertions that its violations were unintentional,” concluding that “VA was well aware of [its] commitment and intentionally elected not to fulfill it.”
The Order also made clear that the Court was considering imposing sanctions as a result of VA’s conduct, and it required the agency to show cause why sanctions should not be imposed on the responsible officials. It noted that “sanctions may be needed to motivate VA in the future to treat its commitments and representations to this court and opposing counsel with the seriousness to which they are entitled.”
The Court indicated that it will take VA’s efforts to remedy the harm it has caused veterans into consideration when determining whether sanctions are appropriate. The Order grants VA 60 days in which to present a plan by which it will remedy any harm suffered by veterans as a result of its unlawful conduct. The Court emphasized that VA should confer with NOVA in developing its plan.
This ruling reaffirms NOVA’s stance on preserving due process rights for veterans with hearings before the BVA. As Roman Martinez of Latham & Watkins LLP, NOVA’s Counsel of Record in the case, stated: “The Court’s favorable decision is a big win for veterans. It’s a testament to the principle that our government must keep faith with the brave men and women who have served their country in uniform.”
“Over the course of more than a year, NOVA has sought to protect these critical due process rights and ensure that all veterans have the opportunity for a meaningful appeal,” Martinez added. “We are gratified that the Court has declared VA’s conduct unlawful and is taking active steps to ensure that VA now remedies the harm it has inflicted on veterans.”
To view the Federal Circuit’s Order in its entirety, click here.
On March 20, 2013, NOVA provided written testimony to the House Committee on Veterans’ Affairs for its hearing on personnel matters related to improving disability claims processing at VA (see President’s Message), as a follow up to its April 2012 testimony on these issues:
NOVA advocated that improvement in these core areas would allow VA to dedicate employee resources to processing disability claims rather than to responding to status inquiries and record copy requests, thereby assuring the accuracy of incoming/outgoing information.
In short, VA’s timely transition to a fully electronic claims files system that assures full access to all stakeholders, veterans, and representatives alike is the single most important factor in improving claims processing. The Veterans Benefits Management System (VBMS), when and if fully implemented, will allow VA to allocate resources in a meaningful manner and reduce the challenges of an overburdened disability claims processing system. A summary of the testimony follows.
Access to VBMS - The need for timely, accurate, and complete access to a VA claimant’s file by a Veteran’s authorized representative is absolutely vital to protect the rights of our Veterans and, without question, will positively contribute to the improvement of claims processing.
The Veterans Benefit Administration (VBA) claims file is still in paper format for nearly all Veterans and at the heart of the VA’s inability to improve disability claim processing. Health records, created and maintained by the Veterans Health Administration (VHA), are currently in electronic format.
VBA’s e-Benefits system, also known as the Veterans Benefits Management System (VBMS), was to address these deficiencies, but the progress from NOVA’s perspective has been dismal. Lack of access undermines our Veterans’ due process and property rights, but directly contributes to the delays in claims processing. VA has provided electronic access to Veteran Service Organizations (VSOs), but has yet to even define what files will be accessible or what steps must be taken to grant this same access to private attorneys and agents.
Timely Entry of Claim Information - NOVA members report substantial time delays between receipt of a claim inquiry, or the submission of evidence, and when it is available to VA claim decision makers. Besides the usual delays associated with mail delivery, an additional delay is incurred because VA must then determine if it can respond to the inquiry or accept the evidence provided.
If the inquiry or evidence submitted is not from the VA claimant, then VA must validate that the information was obtained from the Veteran’s authorized representative. The Veteran conveys authorization by appointing a representative through submission of a VA Form 21-22a. This appointment is meaningless unless and until VA has entered that information into its system. Such entry, in most cases, takes several months, usually much longer.
Access to a fully functional on-line system, similar to that used by SSA, would permit the electronic submission of correspondence and evidence directly to the file without the delays inherent with a paper-driven system. This process would help assure that information is filed in the correct Veteran’s file. It would eliminate the need for VA to manually receive and process the appointment of a representative. Such access represents considerable time savings to VA, allowing dedication of resources to claims development and processing.
Access to VBA Points of Contacts - Private representatives are without meaningful access to VBA contacts. Last year, NOVA noted that Attorney Fee Coordinators (AFC) at VBA Regional Offices may serve as liaisons with attorneys and agents, many of whom are NOVA members. In most cases, AFCs are cooperative and helpful to NOVA members, providing prompt and accurate status updates on Veterans’ claims. However, if the AFC has been instructed to restrict assistance to fee-related issues only, the private representative must waste more time submitting written inquires that take weeks/months for a vague response as to claim or appeal status.
The “800” system provides vague information and affords no guidance on what to do to move a claim forward. This is also true for telephonic contact to the Board of Veterans’ Appeals. More promising, but no more effective, is an electronic inquiry though VA’s Inquiry Routing & Information System (IRIS), which provides email and telephonic responses to a Veteran’s representative. Either responses are extremely vague or issues arise over whether an electronic recording of a power of attorney appointing the Veteran’s representative is available, despite the form being filed months earlier.
Access to a fully functional on-line system, as that employed by SSA, would permit timely access to information about a Veteran’s claim, such that evidentiary deficiencies or responses could be addressed by the claimant without delay. Moreover, such access represents considerable time savings to VA, allowing them to devote resources to claims development and processing.
Decreasing Blocked Calls and Incorrect Information - On-line access to Veteran file information will provide accurate, real time information that will obviate the need for telephone inquiries which, in turn, will allow VA to dedicate resources to claims development and processing.
On March 20, 2013, the Honorable Allison A. Hickey, Under Secretary for Benefits, U.S. Department of Veterans Affairs (VA), testified before the House Committee on Veterans’ Affairs during the same hearing for which NOVA presented written testimony. (See President’s Message.) Her testimony focused on the employees of the Veterans Benefits Administration (VBA) and the transformation initiatives VA has underway to help them to provide timely and accurate benefits to veterans, their families, and survivors.
Hickey reported that VBA completed more than one million disability compensation claims per year in fiscal years 2012, 2011, and 2010 – the highest numbers ever in the VA’s history. Despite this stride, she acknowledged that “too many Veterans wait too long to get the benefits they have earned and deserve.” She noted that VBA continues to execute a Transformation Plan that will enable VA to meet the Secretary’s goal of claims completed in 125 days at a 98 percent accuracy level in pursuit of eliminating the claims backlog in 2015.
According to her testimony, the increased productivity in claims processing was not enough to keep pace with the number of claims received in several of those years:
Over the last three years, the claims backlog has grown from 180,000 to 600,000 claims at the beginning of March 2013.
“For decades, the VBA system has carried an inventory of pending claims, and a backlog that was undefined and therefore confused with inventory. In 2010, the Secretary of Veterans Affairs defined the backlog as any disability claim pending over 125 days and increased transparency by making our performance against our established goals available on the internet. The backlog grows when the capacity does not match demand,” Hickey stated.
She noted other factors that have resulted in the submission of more disability claims, and hence contributed to the backlog, including the VA’s initiatives to increase access, as well as other conditions that increased demand for VA to address unmet disability compensation needs.
Access increased as a result of the following:
1) Increased use of technology and social media by Veterans, families, and survivors to self-inform about available benefits and resources
2) Improved access to benefits through the joint VA and DoD Pre-Discharge programs
3) Creation of additional presumptions of service connection resulting in more claims for exposure-related disabilities
4) Extensive and successful use of VA outreach programs to inform more Veterans of their earned benefits, which can include compensation claims.
While, demand increased as a result of:
1) Ten years of war with increased survival rates for our wounded
2) Aging population of previous era Veterans such as Vietnam and Korea, whose conditions are worsening
3) Impact of a difficult economy
4) Growth in the complexity of claims decisions as a result of the increase in the average number of medical conditions for which each claimant files.
As of January 31, 2013, the current composition of the inventory and backlog, as outlined by Hickey:
To meet the Secretary’s goal of eliminating the backlog by 2015, Hickey outlined the VA’s plan to transform VBA into a 21st century organization. She described the Transformation Plan as “a series of tightly integrated people, process, and technology initiatives” designed to eliminate the claims backlog and achieve VA’s goal of processing all claims within 125 days with 98 percent accuracy in 2015. The Plan involves retraining, reorganizing, streamlining business processes, and building and implementing technology solutions based on the newly redesigned processes to improve benefits delivery.
To view the complete testimony, click here.
NOVA is honored to announce that Joseph L. Galloway, one of America’s premier war and foreign correspondents for half a century, will be the keynote speaker at our 20th Anniversary Gala. Galloway recently retired as the senior military correspondent for Knight Ridder Newspapers. Before that, he held an assignment as a special consultant to General Colin Powell at the State Department.
A native of Refugio, Texas, Galloway spent 22 years as a foreign and war correspondent and bureau chief for United Press International (UPI). He also spent 20 years as a senior editor and senior writer for U.S. News & World Report. He joined Knight Ridder in the fall of 2002.
During the course of 15 years of foreign postings -- including assignments in Japan, Indonesia, India, Singapore, and three years as UPI bureau chief in Moscow in the former Soviet Union -- Galloway served four tours as a war correspondent in Vietnam and also covered the 1971 India-Pakistan War and a half dozen other combat operations.
On May 1, 1998, Galloway was decorated with a Bronze Star Medal with V for rescuing wounded soldiers under fire in the Ia Drang Valley, in November 1965. His is the only medal of valor the U.S. Army awarded to a civilian for actions in combat during the entire Vietnam War.
Galloway was awarded the 2011 Doughboy Award, the highest honor the Army’s Infantry can bestow on an individual. Few civilians have ever received a Doughboy. On Veterans Day, 2011, he received the Legacy of Service Award of the Vietnam Veterans Memorial Fund.
Other accolades include:
Recently, the NOVA Board of Directors became aware of a letter sent by the VA’s Office of General Counsel (OGC) to a NOVA member who is a paralegal and accredited agent in a law office representing VA claimants. The letter was precipitated by an email sent by the deputy assistant general counsel to the paralegal after she passed the agent exam, asking if it is the law firm’s practice to obtain the claimant’s written consent for her to provide such paralegal assistance in those VA cases and, if so, requesting a sample consent form.
In her email back to OGC, she stated: “My duties and responsibilities at the firm in representing our VA clients are within the normal scope of my duties as a paralegal; therefore there is no specific consent form that our clients must sign aside from the 21-22a. Should there be a separate consent or will there be one needed after I am accredited? I would appreciate your guidance in this area as we want to make certain that we comply with all aspects of the regulations.”
The OGC’s written response stated that under 38 CFR 14.629(c), a certified paralegal may assist an accredited attorney of record on a VA claim under the direct supervision of the attorney, provided the claimant has submitted written consent for such assistance that meets all requirements of 38 CFR 14.629(c)(3). The letter also states, “The regulations do not allow accredited agents to assist an attorney of record on a claim for VA benefits, whether it is under the direct supervision of the attorney or not. Having an accredited agent assist an attorney may result in blurring the lines of determining who is actually representing a particular claimant because it would be the accredited attorney and not the law firm that would be acting as the claimant’s representative. If you plan on continuing to assist an accredited attorney after becoming an accredited agent, such practice would be unauthorized by law.”
The letter requests that the member provide written responses to the deputy assistant general counsel’s questions with 30 days, so he may make a proper determination regarding the application.
The NOVA Board is looking into this matter closely, as it has the potential to affect many law firms where a paralegal or other office assistant, who is accredited by VA, is precluded from handling VA claims in the office.
The Ruth Moore Act was introduced by Senator Jon Tester (D-MT) and Congresswoman Chellie Pingree (D-ME) on February 13, 2013. The Act is named after Ruth Moore, who joined the Navy in the mid-1980s at age 18 and was sexually assaulted by her immediate supervisor while stationed in Azores. After she reported the attack, she says the same supervisor sexually assaulted her again as retaliation. No charges were brought, and Moore was discharged and labeled as having a mental illness.
Moore fought for 23 years to obtain disability benefits, during which time she suffered from a sexually transmitted disease acquired from her attacker, struggled with depression, and eventually ended up living in her van. In 2009, a VA investigator discovered that her medical records had been tampered with and eventually helped her win a 70 percent disability rating and corresponding benefit.
The vast majority of sexual assaults in the military are not reported, and even those that are reported are often not prosecuted. As a result, many survivors of military sexual trauma have found it hard to prove that an assault—the stressor—occurred. The Ruth Moore Act allows a statement from the survivor ("lay testimony") to be considered sufficient proof of such assault.
Current VA policy allows so-called "secondary markers" to be considered as evidence of an assault, although VA has been very inconsistent in applying that policy. Secondary markers can include evidence from rape kits, statements from family members citing a change in behavior since military service, and drug and alcohol abuse. In 2010, VA policy for combat veterans applying for disability payments was changed in a similar fashion, allowing lay testimony as evidence that a trauma like exposure to a roadside bomb or mortar attack had occurred.
According to Department of Defense estimates, in 2010, 19,000 sexual assaults occurred in the military, but only 13.5 percent of those assaults were reported. In 2011, only 8 percent of reported cases went to trial and only 191 attackers were convicted. Although military sexual trauma (MST) is the leading cause of Post Traumatic Stress Disorder among female veterans, VA rejected 2 out of 3 MST claims from 2008 to 2010.
The nonpartisan Service Women's Action Network (SWAN) has been one of the most vocal organizations to bring attention to the issue of MST. For more information, please go to http://servicewomen.org/.
Constance B. Tobias Nominated to be Chairman of the BVA
The White House has nominated Constance B. Tobias of Maryland to be Chairman of the Board of Veterans' Appeals (BVA) for a term of six years. Ms. Tobias is currently Chair of the Departmental Appeals Board at the U.S. Department of Health and Human Services. Prior to her appointment in 2007, she served as the Chief Veterans Law Judge for the BVA at VA from 1995 to 2007. From 1993 to 1995, Ms. Tobias was Counsel to the Chairman of the BVA. From 1991 to 1993, she was a Staff Attorney in the VA’s Office of the General Counsel. She began her career in 1983 as a Staff Attorney for the BVA. In 2007, Ms. Tobias received the Department of Veterans Affairs Distinguished Career Award. She holds a B.A. from St. Augustine College and a J.D. from Cornell University.
Not Too Late: Register for NOVA Spring Conference/Gala Event
Registration for the 2013 Spring Conference, including the New Practitioner Session (April 19) and the General Session (April 20-21), as well as the 20th Anniversary Gala Celebration (April 20, 6 p.m.) is still underway. If you are planning to attend any of these events and have not yet registered, please do so now. For detailed information, visit our website: https://vetadvocates.org/novaseminars4.html.
For those who have already registered for the conference and/or gala, you will receive a confirmation email which includes your registered session(s); CLE requested (state and bar#), if applicable; and selected entrée(s) for the gala dinner for yourself and guest, if applicable.
You will also receive a second email around April 1st, providing the URL and password to download seminar materials.
Special Thanks to 2013 Spring Conference Exhibitors
NOVA is pleased to welcome the following exhibitors to our 2013 Spring Conference:
We want to thank these exhibitors for their support. Please stop by their displays and learn more about their products and services.
CAVC Twelfth Judicial Conference, April 18-19 - Save the Date!
Chief Judge Bruce E. Kasold of the United States Court of Appeals for Veterans Claims invites all persons interested in the practice of veterans law to attend the Court’s upcoming Judicial Conference, to be held April 18 and 19, 2013, at the Grand Hyatt Hotel in Washington, D.C.
Please visit the Court’s website at www.uscourts.cavc.gov for detailed program and registration information.
CAVC Bar Assoc. Half-Day Program, April 19 – Register Now
The CAVC Bar is hosting a half-day event on Friday, April 19 at the Grand Hyatt Washington at Metro Center. The program will feature a 2-hour panel on understanding and developing expert evidence on medical causation issues. The panel will include senior epidemiologists, researchers, and physicians in a host of fields relevant to veterans’ law. The Bar Association will follow the panel presentation with an address by the Honorable Allison A. Hickey, Under Secretary for Benefits, U.S. Department of Veterans Affairs. Information on both presentations may be found in the 2013 Conference Brochure via the links provided on the Court's website: http://www.uscourts.cavc.gov/judicial_conference.
Stand alone registration for the half-program is available on the CAVC Bar Association website: http://www.cavcbar.net/html/conference_form.html.
Stop By NOVA Booth #6 at the NOSSCR Conference, May 15-18
NOVA will have a booth at the National Organization of Social Security Claimants’ Representatives (NOSSCR) Conference held on May 15-18 at the JW Marriott in Washington, D.C. Please stop by and help us man Booth #6 or just visit. Matt Hill and Robert Chisholm will be hosting an hour-long presentation, “Testing the VA Waters: An Overview of VA Benefits” on Saturday, May 18th at 8 a.m.
For more information, go to www.nosscr.org/members/conferences.
Welcome New NOVA Members!
NOVA would like to welcome the following new members to the NOVA community. We look forward to meeting you and working with you to help better serve our nations’ veterans:
Darren Coleman, Rue, Ziffra & Caldwell, Port Orange, Fl
Amy R. Fochler,Jan Dils, Attorney at Law, Parkersburg, WV
Ashley Gautreau, Viterna Law, Belleville, MI
Ashley Gilbert, Colling Gilbert Wright & Carter, Orlando FL
Thomas J. Gilbride, O’Malley & Langan, Scranton, PA
Thomas W. Goldman, Veterans Claims Center, Bradenton, FL
Peter J. Loughlin, Veterans Claims Center, Naples, FL
Stephen P. MaGuire, Law Offices of Jeffrey E. Marion, Williamsville, NY
Liam J. McGivern, Legal Services of Greater Miami, Inc., Miami, FL
Chris A. Nichols, Tatum & Atkinson, Raleigh, NC
Christina T. Novajosky,O’Malley & Langan, Scranton, PA
C. Jason Perkins, Perkins Law Firm, Carrollton, GA
Peter B. Storey, Storey Disability Advocates, Macon, GA
Lisa P. Torrini, Attorney at Law, Holland, PA
William C . Vose, Orlando, FL
Congratulations to Our 2013 Scholarship Winners
NOVA would like to congratulate Neil Riley, Amanda Sejba, and Erica Zimny on being chosen to receive the prestigious William G. Smith Scholarship to attend NOVA’s Spring Conference in Washington D.C.!
Stakeholder Enterprise Portal (SEP) Now Operational
VA recently announced the availability of the new Stakeholder Enterprise Portal (SEP)—a secure and seamless web-based entry portal for veterans service organizations (VSOs), business partners, stakeholders, and customers who provide services to veterans or conduct business with VA.
SEP is a project under Veterans Relationship Management (VRM), a VA initiative charged with improving the speed, accuracy and efficiency with which information is exchanged through technology among veterans, VSOs, external business partners, and VA.
You can access SEP at https://www.sep.va.gov/.
Several WIKI Updates Now Available
Attention members! The latest Attorney Fee Coordinator List is now available on the Wiki, as well as this month’s Compensation Service Bulletin. Please check out these valuable resources the next time you visit the Wiki.
Salute to Fox News’ Coverage of VA Claims Backlog
On behalf of our nation’s veterans, NOVA would like to salute Fox News for its extensive coverage of the VA’s backlog in processing benefit claims. We believe the honest reporting of this issue by Fox News and other media outlets will further serve to bring this travesty to the attention of Americans and shine the spotlight on the need for streamlined measures at VA to ensure timely, accurate results.
Randy Campbell Set to Leave the OGC
NOVA has learned that Randy Campbell, Assistant General Counsel, is set to leave theOffice of the General Counsel (OGC) at the end of May. At present, the OGC is in the process of undergoing a search for his replacement. Special thanks to Randy for all his hard work.