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Proposals for the Department of Veterans Affairs (and two for the DoD which require coordination with the VA)


Adopt real case management (apply the IRS model)

The VA makes the same adjudication errors over and over again, e.g., denying a Vietnam veteran service connection claim in 2011 for his diabetes type 2 on the basis of “There is no record of this disease being manifested while in service or within one year of separation from active duty”. Diabetes type 2 has been on the VA Agent Orange presumptive list since 1999. Maybe an employee training error? More likely a quick way to get the case off the employee’s desk and enhance their productivity-biased performance evaluation. What does this have to do with IRS? Every auditor error which results in an appeal dramatically (and very obviously) increases the direct time hours charged to that case. A simple determination, whether a VA compensation claim for diabetes from a Vietnam war veteran or an IRS audit of an individual 1040 tax return with a Schedule A, should take a norm of around a half hour or less. When cases are really managed (as IRS has done as far back as the 1970s when I first worked for them as a revenue officer, before administrative intern and finally human resources specialist/organization analyst) any error not caught which results in use of tens or hundreds of hours of employee time because of appeal processing and sometimes Federal District Court representation sticks out in the productivity/efficiency data screaming “Never do this again!” This is why the IRS has a feedback loop to retrain (or, pending outcomes of progressive supervisory actions, reassign or remove) the individual who made the mistake, revise the auditor/agent training on this topic, and increase the quality review team sample rate for that issue – up to 100% screening if necessary. This may sound like overkill, but by eliminating that particular error in the future, the IRS makes itself both more efficient and effective. The VA has not learned how important that latter term, ‘effective’, is. Cranking out cases with a high error rate to inflate productivity numbers not only cheats many of the veteran and surviving spouse claimants but DRO, VARO appeals, BVA and US Court of Appeals for Veterans Claims cases multiply by many times the overall VA hours worked per case compared to the half-hour it would have taken if done correctly the first time. Compounding the additional costs of appeals, especially the USCAVC cases, those hours are attorneys at the GS-13, 14, and 15 levels. Rephrased: the VA does not manage cases during their entire lifetime – only counts them as they leave each individual employee’s desk. It would not be hard to learn from IRS. Walk from the Central Office to the IRS National Office and ask. It’s a little less than a mile. Listen to someone outside the VA. (I’ve worked for both agencies and first learned position management and management analysis from IRS. When I transferred so that my children would be closer to their grandparents and worked as a Veterans Benefits Counselor, I was shocked to see how poorly the VA is managed. I have a much more detailed explanation of this proposal available upon request which also includes how the IRS Quality Review Staffs function.)

Newly retired reservists/Guardsmen & women who are also service connected disabled getting [insert not-nice verb here]:

I personally lost over $1,800 for no reason other than ignorance. No VA representative nor any DFAS representative I contacted for help had any idea about what was happening to me between 2007 and 2009, and to an estimated few hundred of similarly situated reservists each year. This particular VA gouge hurts the most dedicated reservists who actively participate, most recently in Afghanistan or Iraq, right up until their mandatory retirement age. While a disabled veteran rated between 10% and 40% by the VA remains a participating reservist, he or she merely has their VA compensation reduced by the number of days they receive military pay for each fiscal year. This avoids double payment and is done after the fact, typically two or three years later, by the VA. Not a big deal at all. Allows time for the reservists to double check that the VA has the number of days paid by the military for the fiscal year in question correct. Their military reservist pay just keeps on with no change. However – and this is a big ‘however’ – after the reservist retires he or she will still have their VA compensation reduced by this adjustment process for two to three years depending upon how far behind the VA is in their data processing. If the reservist had a couple of hundred days paid by the military (not uncommon at all these days) during each of those last few years, they will lose most of their compensation. Now the old rule of thumb remains “Your military retirement pay will be reduced, dollar-for-dollar, for each dollar of VA compensation you receive”. This is usually still true for those who retired from active duty and are less than 50% disabled. It is not true for a newly retired disabled reservist. DFAS will reduce their retirement pay all right, but DFAS reduces according to the amount of compensation normally paid the disabled veteran (at his or her level of disability and in consideration of his or her dependents) not the amount actually paid by the VA. Illustrative example: the military retirement pay is reduced by the full 38CFR statutory rate for John Doe’s 40% disabled veteran with spouse status regardless of how much less the VA actually pays this disabled retiree during the adjustment periods. I once estimated that a newly retired reservist could (near ‘worst case’) lose $4,000 of his or her total income for each of three years. The DFAS manager who finally understood my situation told me that DFAS sees the amount the VA reduces the compensation as recoupment of an overpayment as though the reservist had tried to cheat on his compensation awards such as by not notifying the VA of the loss of a dependent, and not as the ‘time offset’ avoidance of double payment by an honest veteran/retiree it is. There is an easy fix for this situation, it’s just that none of the DFAS or VA representatives know it and it is not mentioned on the VA letter which advises the disabled veteran about the impending reduction: Stop the voluntary waiver of military pay in favor of VA compensation until this all settles out then start the waiver again. The only money lost would be slightly additional income tax because VA compensation is not taxable while military pay/retirement pay is. The VA is big on inserting standard paragraphs into their letters to compensation recipients. Insertion of the following paragraph into the notice of impending reduction letter would fix the problem:

“If you have recently retired from the reserves or National Guard, you may wish to temporarily suspend your waiver of Defense Finance and Accounting Service (DFAS) military retirement pay in favor of Department of Veterans Affairs compensation, and resume the waiver after the last effective date listed on this letter.”

There is no way to reverse my personal loss after the fact and I really needed the money at the time the loss occurred. My disabled and dependent daughter was still living. This adding insult to injury “Thank you for your dedicated service! Oh, by the way, we’ll now take a few thousand dollars of your overall income for each of the next few years” situation is currently being exacerbated by the early retirement benefit Congress granted reservists mobilized post-9/11 which can push reserve/Guard MRD (mandatory removal date due to age) back to as young as 55 years old compared to my age 60.

Erroneous Certificates of Eligibility for Educational Benefits VA “correction” correspondence: In those too-frequent situations in which the VA issues erroneous certificates of educational benefit eligibility (or any other document with the potential to cause significant harm), discovers the error, and attempts to contact the recipients; a verifiable means such as USPS certified mail with signed return receipt or person-to-person telephone call must be used. First class USPS does not cut it. Too many veterans have been hurt by “April Fool!” certificates of eligibility compounded by never-delivered correction letters. (This cost me an academic year out of my life, and I don’t have that many years left. It also cost me a job from which I resigned to go to school, a few thousand dollars of lost income, and educational expenses at a time I was supporting my wife and disabled daughter. I asked the Board of Veterans Appeals veterans law judge who heard my case in Washington, DC to please, if he could do nothing else, provide feedback to the Veterans Benefits Administration that they must assure delivery of corrective information to prevent this from happening to other veterans. Either he didn’t or the VBA didn’t want to bother.)

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Department of Veterans Affairs Pension Centers:

The VA pension center covering Indiana, with regional coverage extending down to the Gulf of Mexico, is located in Milwaukee, Wisconsin. Now consider that pension center denial decision letters include appeal rights including the notice that travel expenses to appear at a personal appeal hearing (from Louisiana or Indiana or anywhere the appellant may currently live to Milwaukee, perhaps in the wintertime) are the responsibility of the appellant. I’ve requested BVA hearings regarding Milwaukee Pension Center denials of dependency indemnity compensation for three widows to be held in VA regional offices nearest their homes, specifically Indianapolis, IN and Nashville, TN. In each request I pointed out that to expect an elderly, infirm widow having a low income to pay her own way to Milwaukee is at best insensitive. (I did not say, “ . . and at worst an obvious ploy to discourage appeal hearings” but the thought certainly occurred to me and I hope to the reader.) Of those three cases, two are still waiting for their BVA hearing dates after nearly two years. One did not need a personal hearing after all, a case which serves to introduce the following pension center problem example. If the VA still feels they must use pension centers, at least include the option of a regional office hearing location in the appeal rights information sent to claimants.

Pension Center example 1: An Ellettsville, Indiana widow applied for Dependency Indemnity Compensation, Milwaukee denied, she gave up. Her next door neighbor is a friend of mine. He asked across the fence . . ? She told him. He asked her to meet with me. Her late Vietnam veteran husband’s death could have been service connected three ways: he was already service connected for diabetes type 2 (contributed to his death), he had a severe ischemic heart condition (contributed even more), and his medication for diabetes was known to cause the fatty liver syndrome shown on his death certificate as the immediate cause (indirect service connection, but certainly not unprecedented within VA case law). I prepared the Form 9 accordingly and requested a BVA hearing in Indianapolis. A few weeks later she first received the retroactive DIC check and then the decision letter which included a statement that the VA assumed the positive decision satisfied her appeal. Bear in mind that she and I never appeared before a BVA veterans’ law judge and never presented any additional evidence as we were preparing to do. Therefore the Milwaukee Pension Center already had all the information they needed for a positive decision on record at the time they issued the denial, it was just quicker to deny. I’m sure that from the time the denial was issued until it was changed by the successful appeal the case was considered 100% accurate in the VA pension center data, and it would have remained so except for the one question from the widow’s neighbor. How many other similarly denied widows who have given up don’t have such neighbors? But their denials are categorized as “cases closed accurately” in the VA pension center evaluation data. Don’t believe VA pension center accuracy data. Apply IRS Quality Review Team principles.

Pension Center example 2: One of my two widows still waiting on her BVA hearing was denied by Milwaukee because her husband was 100% service connected disabled for only 9 years, 10 months, and a couple of weeks and not the full 10 years required for her entitlement to DIC if his death was not due to a service connected cause, which it was not. Her Milwaukee denial was made with consideration of only the 100% effective date on the electronic record. The late veteran’s claim folder was in the Nashville VARO at the time, only scanned back to 2004. Any information which might have resulted in an inferred earlier effective date would be earlier than 2004 and had not yet been scanned. Even if the pension center had wanted to do a thorough job they did not have access to the needed pre-2004 information. For similar cases being adjudicated now, they also would not have the authority to infer an earlier claim. The VA has locked-in an efficient but not effective system, not if we define “effective” as providing benefits to those eligible according to Title 38, United States Code. Her husband’s service connected disability was at least as severe a year or two before the date of his 100% rating, but he did not request a reevaluation earlier which would have paid his widow the princely amount of approximately $1,300 per month DIC. He did not so request because the VA medical people told him there was “nothing more the VA can do”. That’s the only basis for her appeal. Back to the Milwaukee Pension Center: In the Olde Days, when VA regional offices making such decisions actually had the veteran’s complete claim folder (which Milwaukee did not), the adjudicator could flip back through the permanent documents on the right side, looking for some excuse – something, anything – on which basis to infer an earlier effective date. I’ve seen good adjudicators do exactly that, knowing that a denial would condemn a widow who had cared for a severely service connected veteran for decades to spend her remaining years in poverty. Don’t deny claims without review of the veteran’s entire claims folder or equivalent.

Pension Center example “2.5”: The VA no longer infers claims (initiated by a VA employee on behalf of the veteran). ‘Stopped in March 2015. Evidently, cutting down their new claims workload is more important than assisting veterans – often semi-literate, uninformed, un-represented and occasionally PTSD veterans – obtain all the benefits to which they are entitled by Title 38, United States Code. This no-inferred-claims change applies across the board and not just to pension centers. Two of my service connected disabilities were inferred by caring, thorough VA employees; disabilities that I, even after working for the VA as a benefits counselor, did not know were compensable. Restore the inferred claims option for VA employees’ use in helping veterans.

Pension Center example 3: Pension centers have minimal familiarity with local “pension poacher” scams and firms. When this type of aggressive fraud became common fifteen years ago, I was assured by a friend in the Indianapolis VARO that “We know who they [these firms and attorneys] are, and we have learned to carefully review pension applications which they forward to us.” This local compliance effort has been lost because of pension center regionalization. The time required to close the average case has declined, it’s just that the cases have a much higher (albeit more effectively hidden) error rate and a higher proportion of the Aid and Attendance pension claims are fraudulent. More specifically, crack down on Aid & Attendance fraud (called “pension poachers” by the VA) concentrating on prosecution of unscrupulous and misleading agents & financial firms. Use field investigators with subpoena authority, similar to IRS revenue officers. Publishing a mild warning on the VA website is not sufficient. The “pension poachers” have already won the information battle with advertisements online, radio, posters, and “seminars” in retirement homes much to the detriment of deserving veterans, the VA, and taxpayers. Move on to the legal battle. This action alone would save enough to pay for all the other suggestions with money left over.

Some additional adjudication proposals for the VA (although I’d much prefer them to be mandated):

  • Do not “serve the adjudicative ball into the claimant’s side of the court” without follow-up. Illustrative examples:
    • A WWII Guadalcanal Marine was paid compensation at the 30% rate because of his profound hearing loss (artillery) since 1947. He was married at the time of his 1947 claim. In 1976 the VA regulations were changed to add payment for dependents to compensation awards of 30% and above, a reduction from the previous 50% and above. Evidently, if we are to believe the VARO’s story in 2011, all 30% service connected disabled veterans were mailed a standard VA form in 1976 which asked what dependents they had. We will never know if Bill Pearson ever received this form. What we do know was that he was being paid as a single veteran in 2011 when I checked his compensation amount. His wife now relies on dialysis three times a week. She has severe arthritis in her weight-bearing joints. Bill has a life threatening heart problem and is sliding into dementia. (He may be a patient in a nursing home now, or deceased.) They certainly could have used the back pay in 2011 or the correct pay all those hard decades. But the VA regional office considers it Bill’s fault that he never submitted the dependents form, a form he may never have received, had no reason to expect to receive, and therefore no reason to request. How could the VARO have paid Bill the increased rate for his wife starting in or retroactive to 1976? By looking in his claim folder at his original 1947 application for compensation, specifically his answers to the questions “Are you married? Spouse’s name? When married?” His kids were born, grew up, and were never dependents for Bill’s VA purposes, but his one and only wife’s dependent status never changed. The VA put the burden on the disabled veteran and did so without his knowledge or follow-up.
    • Another “need follow up” illustration: the contract custodian emptying our Veterans Affairs office trash was in his early 30s. Obviously a bright young man. I asked if he had ever gone to college? No, ‘had to care for his invalid mother. She had ruined her health caring for his 100% service connected disabled father until his death. Didn’t he know he could have been paid by the VA for going to college? No he did not. His notice of eligibility had been mailed by the VARO to a bad address, was returned to the VA by USPS, and was filed away in his father’s VA claim folder without action. He was, at the time I was talking to him, too old for the program because he had become eligible at age 18 and had exceeded the maximum age limitation. (This overlaps with the confirmed follow-up proposal for correction of erroneous certificates of eligibility described earlier.)
  • Do not ever request redundant C&P examinations for those conditions already determined to be permanent, e.g., missing limb, loss of use of creative organ, etc. Legs do not grow back. Grilling the veteran again about his inability to have sex is embarrassing, a waste of the examining VA physician's time, a waste of the veteran's time, and offensive to the veteran.
  • Revise/clarify formal Statements of the Case (provided in response to a notice of disagreement and a request to appeal a decision) as follows: Put the always-the-same, sent-to-every-traditional-appellant, twelve-single-spaced-pages-plus, pure-legal-boilerplate language pertaining to burdens of proof, statutory requirements, quality of evidence, etc., in a section labeled “Legal information you or your representative should review that applies to all appeal cases.” Put the average half-page of language unique to the instant case that actually explains why the claim was denied in a section labeled “Specific information as to why your claim was denied.” Incorporating the critical information into the tail end of pages and pages of usually non-applicable “legalize” filler is a disservice to the appellant who may wade through and agonize over every word, an insult to the value of their time, and reflects poorly on the Department.
  • Eliminate Central Office mandates for work which should logically be done only after regional office determination of need. Example, a Dependency Indemnity Compensation claim from a widow who spent fifty years caring for her 100% service connected disabled veteran in their home: yes, the veteran who was 100% service connected disabled for fifty years (ten would be sufficient to justify DIC regardless of the cause of death) really is dead and his widow really has not remarried and their children really did exhaust their Chapter 35 educational benefits decades ago – there is no need for this case to wait months for a rating board decision. This determination was purely clerical – check the two blocks: dead, surviving spouse not remarried. Mandating additional, needless rating board work seems illogical for a Department which complains of excess workload. The widow is waiting with no income from the VA during this time of grief. If the proposed streamlining worries the Central Office folks, route closed cases through the same Quality Review Staff (modeled on that of the IRS) mentioned earlier.
  • Resume vocational rehabilitation at the level last satisfactorily met when paused by circumstances out of the veterans’ control. Do not punish the service connected disabled veterans by forcing them to start over at the beginning again unless absolutely necessary. Any disabled veteran would be upset at being required to repeat the same application process, travel yet again to the same assessment appointments, watch the same overview movie, etc. and PTSD vets may be extremely upset. (This is yet another Central Office, out-of-touch-with-reality requirement.)
  • Never ask for military treatment records for tinnitus (“ringing in the ears”) during development of a service connected claim for this disability. Such requests waste both the adjudicator’s time and the veteran’s time, adding to workload for both. I don’t think anyone was ever was treated for ear ringing while on active duty. If someone was, they can tell the VA during the audiologist’s examination. These “please provide specifics of the loud noises to which you were exposed while on active duty” development letters, especially those addressed to former carrier flight deck sailors, artillerymen, former soldiers in armor and infantry are a waste of time and an insult to the veterans – but a quick way to get the cases off the VA employees’ desks! Kick the can down the road and, with luck, the veteran will not respond! Then we’d have a basis for denial!

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