President Donald Trump just signed his third bipartisan legislation in two weeks aimed at speeding up the appeals process for veterans claims.
This bill has been in the works for a couple years. It is aimed at simplifying the appeals process to allow speedy review of some claims on appeal while allowing more thoughtful review in other instances.
According to The Hill:
“This is a big one,” Trump said, pointing to the bill before signing it to a roar of applause Wednesday. VA Secretary David Shulkin stood behind him along with leadership from the nation’s largest veterans group.
Trump signed the Veterans Appeals Improvement and Modernization Act after addressing veterans at the American Legion’s national convention in Reno, Nev.
“One year ago at this gathering … I promised you I would make it my priority to fix the broken VA and deliver our veterans the care they so richly deserve,” Trump told the audience.
Publically, most lawmakers laud the change. But some veterans rights attorneys are concerned the new legislation will remove rights and ultimately backpay entitlements to veterans without legal representation.
Attorney John Wells had this to say about the legislation:
Section 2(e) of the bill limits the VA’s “duty to assist” the veteran to cases before the Agency of Original Jurisdiction, (AOJ) or, as it is known colloquially, the VA Regional Office. Once the appeal is filed, the duty to exist the veteran no longer exists. In veteran’s cases, unlike other federal adjudication systems, no discovery process exists….
The duty to assist, as originally crafted by Congress, required the VA Secretary to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit. This has often been considered an important due process requirement. Since the VA system does not allow discovery and the Secretary has access to all of the documents held by the federal government, this duty has not only streamlined appeals but resulted in more favorable outcomes.
Vietnam Veterans of America had a similar perspective:
The bill creates a system where a Veterans Law Judge (VLJ) may deny a claim because she does not have the duty to assist in gathering additional relevant federal documents necessary to get the claim granted. Although the veteran will have the ability to file a supplemental claim at the AOJ [Agency of Original Jurisdiction or the Regional Office], it hardly seems like a pro-veteran system where an adjudicatory body knows of possible helpful information for a claimant, but is not able to act on this knowledge in a helpful way to the veteran. Under this new framework, the pro-claimant system would deteriorate and it is nonsensical for a VLJ to receive additional evidence for consideration, but not be able to act in the veterans favor once receiving this evidence.
At the end of his commentary, Wells chided veteran organizations blindly supporting the bill that will effectively put veterans at further disadvantage against the agency that continues to victimize veterans who are unable to hire counsel at the onset of filing their claim:
HR 2288 is a bad bill that only make it easier for the VA to deny claims. Without the duty to assist, the veteran and his or her representative is left with the Freedom of Information Act as the only means to obtain critical documents. This process often takes months or years. Additionally, the veteran will have to absorb the cost of research and copying. While the VA currently will obtain documents such as medical records from non-federal sources, that right will evaporate at the appellate stage. Veterans will have to obtain those records themselves and pay the significant research and copy costs that are routinely waived for the VA.
The support of the American Legion, the Veterans of Foreign Wars and the Disabled American Veterans for HR 2288 is disheartening. Notably, they participated in the working VA working group that drafted the legislation. While pride of ownership is somewhat understandable, their refusal to protect the duty to assist rises to the level of a betrayal of the veterans.
Now they support the bill because “appellate reform” is a popular sound byte. This ignores the reality of the problem. The reform should actually solve the systemic problems within the VA; this bill does not. Instead, it makes a bad system worse.
So what do you think about legislation created because VA cannot accomplish its mission within a reasonable amount of time? How were veterans tricked into supporting this?