New VA Rule Proposes Sweeping Changes

On Thursday, Halloween Day, October 31, 2013, the VA published a proposed new VA rule that would make sweeping changes to the way VA claims are read, interpreted, and processed. The rule consists of two major propositions. First, the VA intends to require a veteran to file a claim on a standard form. If the claim is not on the standard form, then the VA would simply not accept it. Second, if the veteran wants to disagree with a rating decision, then the VA would require the veteran to file a Notice of Disagreement on a standardized form.

Numerous implications reverberate from these apparently simple propositions.

Standard Veteran Claim Form Ends the “Informal Claim”

A salient one is that requiring a veteran to file a claim on a specific form abolishes what is called an “informal claim.” Currently, “[a]ny communication or action, indicating an intent to apply for benefits . . . may be considered an informal claim.” Furthermore, under the current system the VA must adjudicate claims that are “reasonably raised by the evidence.” The VA itself, in the proposal in the Federal Register, states that “it receives an enormous volume of non-standard submissions under its current rules.” So, abolishing the informal claim means that – in effect – when a veteran calls the VA and informs that VA that her peripheral neuropathy has become more severe, for example, the VA would require that veteran (who may have only remedial education and very limited resources) to complete an application on a specified form, which would be some version of VA Form 21-526. Last year the VA received around 3,184,863 claims like this. An “enormous” volume.

Incentives for VA Electronic Claim Filing

In addition to this, the VA proposes to create an incentive for electronic filing. This incentive involves establishing an earlier effective date. If a veteran files a claim (on the prescribed form) electronically the veteran may receive an effective date at least one year earlier than a claim filed on a prescribed paper form. When the claim on the paper form is incomplete – as determined by the VA – then the effective date is not established until the veteran supplies the absent information. If the veteran supplies missing information on an incomplete electronically filed claim, then the veteran’s effective date is the date the incomplete claim was received. So, if a veteran does not know how to use a computer (and there are a lot of veterans who do not know how to use a computer effectively), then the burden will likely fall largely on veterans service organizations, who will tell anyone who asks – in no uncertain terms – that their capacity has already reached maximum use.

Will the New Rule Leave Some Veterans Behind?

A further analysis of the proposals will reveal more and more legal disputes, the complexity of which is unknown currently; but, this is certain: the trend – which has been previously identified in this firm’s blogs – is continuing to show that more of the burden of filing, developing, and monitoring claims is being shifted away from the VA to the veteran. In the past, one opinion has been to embrace this change based on common sense: when less VA bureaucracy is involved in a veteran’s claim, then so much the better. (That still remains my opinion to an extent).

But, the corollary to that reasoning is the answer to a pending question. That being, what is the proportion of veterans who will not be able to bear this shifting burden? Some will not be able to bear it because of lack of education, mental illness, poverty of resources – whether it’s unemployment, homelessness, or overwhelmed service organizations that cannot manage what will be an increased work load. The answer to this question is essential. If that question remains unanswered, then it will remain unaddressed. Consequently, a lot of veterans will be left behind.

Will More Veterans Disability Advocates Help?

One solution is to employ more assets, and that would include veterans disability advocates. Recently, this blog discussed a partnership between the VA and pro-bono advocates. As part of that discussion, the point was made that a realistic and significant impact could happen if veterans were allowed the freedom to hire counsel to file, develop, and monitor their claims. The pro-bono bar is a wonderful and essential role in the legal profession, but its resources — like the VSOs — are limited. This writer respectfully submits that, with these major moves in shifting the burden to veterans, the VA should also seek to work with private counsel instead of following the recent history of marginalizing private counsel. In short, give veterans the freedom to seek assistance of their choice in filing and developing new claims, claims for higher ratings, clear and unmistakable error revisions, etc.

How to Hire a Veterans Disability Advocate

Although rules limit when and how an advocate can assist with veterans’ claims, there are certain stages of the veterans’ appeals process when you can — and often should — have a qualified VA advocate at your side. Veterans Help Group is more than happy to consult with you for free about when you can have an advocate our team can help you. It is our mission to help veterans and their families get through the VA red tape and receive all the benefits to which they are entitled.