VA Law Library

My trip last week to the Board of Veterans Appeals revealed more than solutions to longstanding problems, but also the Board’s law library goldmine of old documents.

Last week, I wrote about the forum that included four veterans with various experiences with the appeals process. This was the first forum of this kind in ten years. In attendance were over 400 Board attorneys, judges and support staff.

My biggest takeaway was that the outside world really has no clue about the business practices within the Board. If we did, many of the struggles within the Board and within veteran populations would be reduced.

RELATED: Board Seeks Veteran Feedback In Upcoming Forum

The four veterans on the panel were:

  • COL Lucretia M. McClenney, Commission on Care, U.S. Army, Retired
  • Abby Malchow, U.S. Navy
  • Benjamin Krause, JD, CEO of Armo Press, publisher of DisabledVeterans.org, US Air Force
  • Chris Neiweem, The Neiweem Group, U.S. Army Reserves

There are two primary questions panelists were asked during the forum:

  1. What one change would you like to see the Board or VA make based on your personal experience with Board hearings, appeals, or the claims adjudication process?
  2. Based on your experience with BVA or the VA claims adjudication process, what are we doing well and what should we continue to do?

First of all, the building the Board resides within is very nice compared to many other federal buildings in DC. It’s located in a part of town that is being redeveloped.

The VA employees there are radically more positive now than they were before Carol DiBattiste took over in August. (DiBattiste is the person who invited me to the forum.)

RELATED: New Board Chief Reaches Out To DisabledVeterans.Org

When I arrived last Wednesday, I had some extra time and spent that reviewing old adjudication policies within the Board’s library on the 5th floor. Man, if you’re a book dork like I am, the library is a real gem.

The Board’s Library?

Did you know the Board has its own library and has documents located nowhere else in the world? I sure did not.

The library is loaded with antique texts covering various issues within veterans law dating back to the 19th century.

Come to find out, the Board is likely the last internal organization to have all the old documents mandating how disability compensation claims were supposed to be adjudicated… but the vast majority of the documents are not digitized.

Can you believe that?

In this age of digitization, Congress has not yet set funds aside to digitize the same documents that could benefit millions of veterans with claims on appeal from decades before.

As a taxpayer, I am always surprised at what Congress approves and what the government spends by way of billions to projects that do not work correctly (ie VA IT projects).

Meanwhile, other projects like digitizing an important law library or creating online veterans benefits education systems are on the backburner.

National veterans organizations have likewise failed to increase transparency by also using a small portion of their hundreds of millions in annual donations to likewise fund a digitization of the records and educate their members directly.

Could you imagine the fanfare if the veterans organizations worked together to digitize the library with an army of volunteers and donated equipment from Xerox or Kodak? How much might that cost vs paying a contractor to do it?

In an age when information is power, those with the information have traditionally chosen to retain their power to the detriment of those they serve.

The good news is now that the idea is “out there”, (and by out there I mean outside the walls of the Board and VA Central Office, since many of them likely thought it would be a good idea already) maybe we can encourage the right decisionmakers to allocate funds from Congress to get it done.

It would be an invaluable addition to what VA has already done with the M21-1MR and related digitization projects.

Maybe Google or Facebook could spare a few million in the tax dollars they saved through loopholes to get it done? You know, for the vets…

Value Of Board’s VA Law Library

Veterans with older claims should attempt to secure copies of: 1) circulars, 2) technical bulletins, and 3) information bulletins relative to their adjudications because I can guarantee VA likely failed to follow at least some of the policy mandates.

Most veterans, including me, did not know such adjudication documents even existed, and I can guarantee that making those records public through a digitization campaign would help veterans win an enormous amount in wrongfully denied claims that predate computers.

Here is how I know.

The Veterans Benefits Administration likely destroyed all its circulars related to benefits adjudications dated before 1964. So how can any regional office adjudicate a request for revision dating before 1964 if they do not have the policy requirements?

The reality is they cannot, so they render magical opinions without consulting the policy mandates that were possibly not followed. Get the gist of what I am saying?

I received a FOIA last year informing me that the circulars and other documents were no longer available within the VBA. So you can guarantee each regional office lacks the documents, too.

Board Forum

Let me say one thing. The Voice of the Veteran forum was radically different than what I expected.

The attorneys present asked a load of questions that were on point and challenging. I came away from the event knowing things are moving in the right direction and that a massive reorganization is underway.

About the questions. I covered a few points focusing primarily on the Board’s use of language and encouraging Board judges to find a legal way to reach out to veterans during the review process.

Currently, the Board is exploring ways to write Board decisions that can be understood by veterans while simultaneously satisfying the requirements for Court review.

I stressed that the technology already exists to help authors write to a specific educational level. That means we do not need to pay Booz Allen another few million to reinvent the wheel.

I also stressed the need to increase transparency between the Board and the veteran. There is no reason to behave like a “star chamber” courts of ancient England under King James I.

Feedback from the group was that legal restrictions prevent them from reaching out.

I reminded them that the Board used to be more involved with veterans years earlier. Hopefully, they will figure out how to do it again.

I did not mention that the Board should be disbanded or at least reinvented to be a more advanced adjudication of the regional offices where no attorneys review cases.

Instead, the Board seems to be in a state of homeostasis somewhere between being the old appellate review prior to the advent of the US Court of Appeals for Veterans Claims and whatever it needs to become now. It’s stuck in the middle somewhere.

With any stroke of genius, Carol DiBattiste will pull them out of the funk and into the future. She had a lot of energy and there is no question her team at the Board is dedicated to her vision there.

My vision for the Board would be:

  1. Digitize its library so veterans worldwide can be better informed about their old claims when appealing (VA less of a “star chamber” and instead transparent)
  2. Find a way to legally speak with veterans or their representatives during an appeal to Board in an informal manner to correct deficiencies
  3. Simplify writing opinions similar to traditional journalism standards of writing using syntax suitable for an 8th grade reading level
  4. Refocus mission on being veteran-centric and less of an impartial decisionmaker like at the appellate court level
  5. Invite regular veterans and veterans rights advocates to speak about the claims experience from the veterans’ perspective
  6. Increased transparency will increase trust with the veteran population; this can be accomplished in part by creating a veteran-centric education platform online about benefits adjudication

One pilot is already underway at certain regional offices.

As it was explained to me, Veterans Law Judges will be assigned to a regional office and conduct a preliminary review of certain appeals. The appeal must be older than December 31, 2012.

Those veterans will be able to opt for an early look at their appeal by the judge. If the stars align meaning their claim is easily grantable without detailed analysis, the Judge can grant the claim. This should help reduce the backlog of appeals at least for the oldest appeals.

I’d like to thank Carol DiBattiste, Thor Wold, James Ridgway and Vito Clementi for putting on the event and making sure I was able to attend. It was a real honor and surprise that VA would pick me to participate in something like that “behind enemy lines.” 🙂

VA Secretary Subpoena Power From DOJ Manual

1946 Criteria For POW Disability Adjudications

Location Of Various VA Records Centers

19 COMMENTS

  1. All great progress, Benjamin. However, I must ask what’s preventing the scanning of all these important resources? When an item is desired to be kept in “exclusivity or rare documents” status, it usually means through a form of “hording same documents” the VA/Board is also at the very same time limiting their liabilities by limiting the very information. Right?
    How do all those records relate to a story you ran on here back in April, 2016 regarding VA Sec. McDonald announcing the Dayton location to be new master records repository? Will this be a “limited access” records repository and why not add the Board’s Library to the new Dayton Repository Project as I have a feeling nobody on the Board has even considered that, as well as Sec. McDonald, and BVA Murphy. Just a thought.
    That was this article: “http://www.disabledveterans.org/2016/04/13/veterans-affairs-to-build-national-archives/”

    • BTW, Benjamin- If you ever have the need to be in Columbus or Dayton, OH for research or whatever, I reside on far West side of Columbus and you always have a place to crash to save some $$ while in area and am betting many other Vets could offer same to help keep the non-profit side of things sustainable in their various other locations living across these United States. Just a thought and offer.

  2. Thanks Ben. My suggestion to Carol and to the Board is to study toxicology. In order to better understand veterans suffering from the widest possible range of diseases. In veterans’ cases, the likelihood that the veteran in question came down with serious illnesses so young because of routine exposure to toxic substances while in the military is extremely high. And yet the Regional Offices and the Board still require veterans to get sick all over again and go bankrupt proving their routine cases. When in point of fact and law, it is the military and the VA that should be presumed guilty until proved innocent… A good addition to the BVA Library would be:
    Journal of Law and Policy
    Volume 12 | Issue 1 Article 2
    2003
    Scientific Judgement and Toxic Torts – A Primer in Toxicology for Judges and Lawyers
    David L. Eaton

    • Good point Roger. Hell the VA readily admitted after the first Gulf War that it was the most toxic battlefield to date, and I’m sure it has not gotten any better.
      I haven’t read what you cite above, but I would hope it is an argument in favor of the law where certain things are presumed service connected, along with language showing if you sat on a pile of plutonium, current science suggests cancer.
      Far too often the VA ignores presumption and the best medical research suggesting disease X will result when exposed to Toxin Y. Their excuse is that science has not proven definitively that exposure to Toxin Y caused Disease X, so service connection is denied.

      What would also greatly improve a veteran getting service connected for diseases caused by toxic exposures is forcing the VA to publish prevalence rates of disease in various groups of veterans.
      If 1000 soldiers are being treated for a specific kind of lung condition, and it was shown they all served at one point or another near a Burn Pit, then presumption should occur rather than waiting years for science to say more research is needed.
      It would allow many to see how prevalent certain diseases are in veterans serving in a specific theater or location and would be the basis of presumptive legislation if none existed.
      It would also prevent the VA from sitting on clear evidence like they did with ALS after the first Gulf War. Veterans were dying before ever getting service connection, until that prevalence data was leaked.

  3. Great article Ben.
    Concerning ‘disabilities’ and ‘compensation’, is there anything in those old manuscripts detailing how each vet receives each?
    For example; Two or more veterans have the exact same disability, ie: lose of limb (leg) due to “enemy activity”! Yet, each vet receives a different amount of ‘compensation’ for that disability!
    I ask this because, there has been reports of this!

  4. Some (OK a lot) of the problems could be solved with a simple call to the Veteran while the board is making a decision. This could be done similar to what the Social Security does, they schedule a date and time to call you, that way you have direct input in case there is questions, instead of just deny and put it on the Vet to appeal. In my case I put in a claim for my back, they only looked at the information about L3-L4 and dissapproved where as in the package that was filed it also had information about the surgery on L3-L4 and two (2) surgeries on L4-L5 which they did not look at. As for the digitizing of the documents, send me stacks of it, I have a scanner and would be glad to scan the documents into searchable files for only the cost of the postage and materials required to do it. Hell employ Vets to do the scanning, they could work from home, be paid by production (ex: per page) cheap labor, unemployment down Win Win situation.

    • That’s a great idea. I also have a nice scanner in my printer. However, I have a feeling these documents and booklets/books have been squirreled away for a reason–preventing access. I cannot think of any other reason and after the VA/Board possibly scans these they may just look like the Roswell Reports when released with all the blacked-out pertinent info. Never know.
      I see in Ben’s pic publications on various radiation studies(tested on Active Duty Military), and no doubt there will be the very findings VBA ‘Agent Orange’ Murphy still denies to this day linking AO to all the woes of Vietnam Vets, and more than likely all the beef proving spent uranium, burn pits, Gulf War Illness…the Ark of Covenant of Veteran Appeal Wins and just maybe where Jimmy Hoffa is buried, as there’s bound to be slivers of AFGE oozing in pages somewhere, a bookmark, drool…
      I wonder how one could request a FOIA on the entire lot? 🙂

  5. Ben, First of all I want to thank you for all that you have done for our brothers and sister who served. I really mean that Ben. However, the Veterans Administration has absolutely ruined me. I’ll never trust these bastards again FOR ANY REASON! As I have said right here on your forum. If Trump doesn’t win and all I have is the VA to rely on, then I’m a dead puppy. Give us the right to procure REAL medical care in the private sector. I’m afraid that the Veterans Administration is way beyond repair or reclamation. Give us Medicade or something like it. Any thing is better than going to these butchers.

    • Ralph your right about everything except Trump he is a joke. And they are butchers. I went to them with blood clots in the right leg and ended up with the left leg amputated before the right leg.

  6. I would say it was a smart move to include you Ben. I suspect you will be around for awhile helping vets, so why not make everybody’s job easier and include you.

  7. Let me just say here that this has been a long standing trick and sham hoax of a recurring moment that the VA likes to play on veterans — to get into their faces and say: “Name the ONE fix you would like” or how about “What are the TOP THREE matters you would like us to address” or how about “What is the ONE pressing matter we should be addressing”. To those who play this stupid game with the BoneHeads of VA, I say “Talk to the hand!” At a meeting with VBA’s crackpot benefits guy in WashDC last year that I had, Bradley Flohr, asked me this very question. I told him to cut the bull and to address everything that needed to be fixed. This was way too deep for the remarkably low I.Q. that he walks with. So first and foremost, the ONE most pressing matter that VA should be fixing is to immediately FIRE Bradley Flohr. Secondly, yeah let’s all “pretend” (Ahem!) that the VA appeals process is working just fine and needs a little small tweaking here and there to get up to speed again. BULL! I have been up and down the VA appeals process probably 5 times or more and here is what I say about this road trip to hell and back that they have in place. After the entire top layer of the Claims Division was fired or transferred out of VARO New York City in the 2009 – 2010 time frame, all of us who had cases cued up in the system there, were left to fight our way out of the mess on our own. Assistance offices refused to take our cases. VSO’s, state, county — you get the idea. The corrupted veterans cases were jaded with criminal misconduct, you see, so that even the claims lawyers wouldn’t take the cases for assistance, mine included. The Chief of the Claims Div. at VARO NYC, named Joseph Collorafi, had been issuing deliberately falsified ruling papers in cases for several years before we managed to get him fired. The FBI raided the offices there and found entire boxes of unopened mail backed up from the veterans, meanwhile Collorafi had been cranking out false ruling papers right and left in the VA computer system. I thought a new day had come in my case, but then the reality check for it was no better after going up on appeal at BVA. Collorafi had a BoneHead loyalist named Robert E.P. Jones at BVA WashDC who kept the falsified version of my case in place. Apaprently he was under the misguided idea that Collorafi was innocent and Jones was going to make it a point to “enforce” all of Collorafi’s decisions. To this very minute, if I resubmit my own VA Comp case right now, then Robert E.P. Jones, like a freaking stalker in the night, will come jumping out of the woodwork to intervene on my case and to keep the deliberately falsified rulings in place from years ago after Collorafi had corrupted the case initially. There has been NO POLICE at the BVA. Thank you for sharing letters from the OIG office just doesn’t cut it here. There is no way to force an intervention on Robert E.P. Jones at BVA WashDC. AND, Oh By The Way —- whenever you reopen a case, it goes back to the starting point of wherever it had originally left off. This means, in my case, it goes back to the starting point of when it was deliberately falsified by Collorafi before he got fired. BVA has long been a rubber stamping operation for all things VARO. Not one of them have a brain. It’s one Parrot-Head after another Parrot-Head. Add into all of this the fact that BVA was trying to (Ahem!) “remand” me for medical conditions that I was not even applying for, then you can start to see from this chain of events that my VA Comp and Pen case is a 350-car pileup on the interstate highway called Slow Death Road. 40 years I am in the VA Hospital care system and to this very minute at age 66, I am still not Rated for disability. All of the ruling papers in my name, which stands as a monument to the police warrants that never came, are written as if (1) I am still age 22 years old (2) I have never seen a doctor in my life (3) I am not at all fully diagnosed by a licensed medical doctor (4) I have never had a surgery in my life (5) I have no active duty medical treatment records in my Army file and (6) that there is no match at all between my modern day illness profile and my active duty treatment records. All of this is a LIE, of course, so get a picture. I am so sick of people referring to this claims process as something that is “Do-Able” when all it really turns out to be is a modern day Bataan Death March. There will come a day when I will see Robert E. P. Jones come out of the BVA building in handcuffs for what he has done to me and my life. But until that day comes, please make it a point to get right into the VA’s crazy-assed face the next time they ask you for “….the ONE thing to fix in the process….” and say to them: “Talk To The Hand — fix whatever is broken and do it now.”
    — Sue Frasier, Army 1970
    and still not rated by VA (Ahem! What shit I say!)

  8. Glad you went and saw and spoke, Ben, at least someone is interested in our side of the equation. Was there any talk of fixing the problems on the front side, where the claims are initially denied?

    Fixing the appeal process is all well and good, but to what end if most of us still have to go that route?

    Why do I have to appeal and prove my chronic pain when it’s the most noted issue in my SMR? What’s the use of pointing out the ETOH abuse and NJP, and SACO treatment program cuz none of us ever tried to drink the pain away, right?

    It’s a good thing they talk about fixing the appeals process, so maybe my 24 years and counting of chronic pain won’t push me beyond my limits. Not gonna hold my breath though.

  9. I think you are right about things changing at the BVA Ben. I had a hearing about 10 months ago and another 2 months ago re prior to 2012 claims. The 2nd Judge was much more interested in listening than the first.

  10. Waiting 2and half years on a appeal. Called va the day .they r just working on 2014 they told me.the va is messed up.As far as the bonuses they can’t even fix the time to get to see a doctor.They use that money to hire new doctors. Ben keep up the good work.

    • Waiting more than 23 years on an appeal that was delayed because of my moves, an OIG investigation I ask for, refusal to provide “radiographic MRI and X-ray films” and an assignment of a “sensitivity 7” with my records being under strict control of a “sensitivity 7” officer.

      Ben, please do an article on SENSITIVITY 7. We would like to know what the hell it is.

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