One Marine veteran with a 100 percent disability rating from military sexual trauma (MST) is faced with homelessness this Christmas.
The veteran, Maria Jewell, came into our law office last week armed with a stack of letters from the Department of Veterans Affairs she just received. The single mother and MST survivor reviewed the documents and pointed out one glaringly obvious repeated mistake.
Anyone familiar with VA knows the agency simply refuses to successfully connect its numerous databases containing addresses of veterans. A veteran could move five years ago, fully inform VA of the move, and then five years later, some database glitch would magically result in numerous notice letters going to the old address inexplicably.
Such was the case with Jewell.
On Way To VARO With Jewell
Future Examinations And Disability Reductions
Some of the veteran’s disabilities were not static including her PTSD rating. Every few years, VA will call back veterans with PTSD ratings to seek a new evaluation – – they call these Future Examinations.
The agency argues veterans with PTSD from sexual assaults will likely improve, so they haul many PTSD veterans back in for a new rating assessment.
Here, Jewell was apparently scheduled for a reexamination of her PTSD and other conditions, but the notice was sent to her old address. When Jewell did not show for the exam she did not know was being performed, the agency swiftly moved to reduce her benefits.
The second notice letter sent to the incorrect address informed her the agency’s “special review” mandated a reduction if she did not dispute the matter.
Last month, I received a trove of VA training presentations. The trove included one presentation addressing benefits reductions. Despite the PowerPoint saying this and that about a veteran’s right to due process, the transcript for the presentation said the goal of the adjudicator is simply to reduce.
So, without a supporting evaluation showing Jewell’s disabilities improved – – in fact, the agency’s own clinicians indicated the PTSD was chronic, for example – – an agency adjudicator simply looked at every angle to reduce the veteran’s benefits as far as possible.
The PTSD rating alone went from 100% to 0%.
Adding insult to injury, sometime later, VA sent a notice letter to the veteran that her benefits adjudication was adverse and that the agency would reduce the overall rating from 100 percent with Special Monthly Compensation S to 40 percent.
60 Days To Contest Reduction
She was given 60 days to contest.
That is the difference of around $3,400 per month to $600. The reduction was set to go into effect right now.
Of course, Jewell knew nothing of the reduction, or her right to contest the reduction within 60 days of the decision, because – – you guessed it – – the agency sent the letter to the wrong address, again.
By the time she showed up at our office, she was beside herself with grief.
Oh, and she also has a looming eviction if she’s unable to pay rent, which she cannot pay since she does not work.
VBMS Review At Regional Office
Brian Lewis and I escorted Jewell to St. Paul Regional Office to help her review her C-File within VBMS – – the local VA representative were swift and willing to help Jewell get to the bottom of the matter right away – – this was pivotal to understand how to explain what happened to a judge if the veteran was evicted.
The records available clearly showed the agency had the right address within the system but it sent the notices to the wrong address.
While neither Brian nor I am representing Jewell for benefits, we wanted to urgently get to the bottom of her pending dislocation. As a father myself, I cannot imagine being displaced due to an agency mistake while also having custody of a minor child.
No Case Management By VSO
The organization that is representing Jewell was some hybrid relationship between the MN County Veteran Service Organization and American Legion.
When asked, the accredited VSO told us American Legion, at least at St. Paul RO, does not provide case management. So, the fact that the VA repeatedly sent notice and reduced the veteran’s benefits to 40 percent was not their problem; it was the veteran’s problem.
At least, that is what the veteran’s own representative said to us.
Some of you may be wondering what it is a VSO may do if they have Power of Attorney, which is what they have if they are not providing case management.
What Happened After VARO
VSOs Get Paid By Quantity Of Claims Filed
The gist of it is most VSOs or NSOs have such a high caseload that they only perform basic form filing functions initiating claims. They generally will not develop a case or perform case management. Coincidentally, those same organizations get some form of compensation based on the quantity of the claims filed. In Minnesota, so we are told, the state’s VA pays at least some of the organizations, and apparently covers the wages of the employees, while the federal VA provides rent-free space to the organizations.
As an attorney, I can tell you I must provide case management including reviewing correspondence from the agency to be sure my client is aware of what is happening with their appeal or claim, at least as much as is reasonably possible with VA and its ever-shifting policies.
VSOs here in Minnesota generally do not provide that level of service despite the suggestion that the VSO will behave like an attorney with their Power of Attorney.
Confusion About Power Of Attorney Assignment
Adding to the complexity was the veteran’s lack of knowledge that the American Legion was her representative. Apparently the local CVSO simply had the veteran sign the backside of the VA Form 21-22 without fully explaining the nature of their relationship with the Legion.
Things got weird when we tried to meet with the Legion representative to see what they planned to do to fix the problem. We ended up being referred to the MN Department of Veterans Affairs (MDVA) instead of the Legion office.
In Minnesota, the Legion has a memorandum of understanding (MOU) with the MN Department of Veterans Affairs where an MDVA accredited representative actually does the work and is paid for by the state. The individuals have some kind of dual appointment under the MOU meaning the government employee is also a VSO.
Does this make sense?
The veteran thought she was represented by the CVSO.
The veteran’s Power of Attorney was actually transferred on the 21-22 front side to the American Legion without her knowledge or understanding.
Meanwhile, unbeknownst to her and not reflected on the 21-22, the veteran’s representation was actually accomplished by a government employee of the MDVA. Again, when asked about how the matter fell through the cracks, we learned the MDVA representatives do not provide case management.
Do VSOs Do What Attorneys Do?
Instead, the veteran would need to jump through hoops to get the matter rectified, if possible. Circa 2017, I would have worked the matter myself by many VA accredited attorneys stopped representing Minnesota veterans for benefits appeals because the state passed a law pushed by CVSOs – – so we are told.
That law basically says VA accredited attorneys must force their prospective clients to sign a Disclosure Notice. That document states the veteran understands the services they plan to pay an attorney for would be provided by a VSO or CVSO for free:
You must sign this form if you wish to pay for services that you could receive at no cost from a Veterans Service Organization, the Minnesota Department of Veterans Affairs or Minnesota County Veterans Service Officer.
Additionally, if I advertise on a billboard or similar, I would need to publicly say the same – – that a VSO does what I do for a fee.
Failure to comply with the unconstitutional law can result in a fine of $1,000 per day.
What happened to free speech? How about a right to contract? Did veterans lose their right to hire an attorney whenever they like by merely being a veteran?
As a consequence, I no longer represent Minnesota veterans for benefits and will not until the law changes. As a VA accredited attorney, I am not bound by state law related to representing veterans before the federal agency, but I’m not going to bother getting hung up by local cowboys.
Again, the entire matter with Jewell highlighted how wrong the law is when it comes to free speech, a person’s right to the representation of their choice, and the federal preemption of a state to get involved in federal matters already delegated by Congress for regulation by the federal Department of Veterans Affairs.
Attorneys provide case management, and we can provide representation on appeals to a court. Generally speaking, no state CVSO can do that. But the law precludes me from representing a Minnesota veteran even to the Supreme Court unless the unconstitutional disclosure is signed, first.
When the law passed, legislators were not informed the federal agency already has federally preempted authority from Congress to govern representation relationships between private attorneys and veterans. And, the state agency’s own policy researchers were completely unaware of the conflict when it was drafted.
It was a mess.
Now, CVSOs, VSOs, and NSOs all have a necessary place in the system – – and many are great at their job in that context. They handle the initial claims applications for a variety of things, which is not an area of practice attorneys generally work within as we cannot earn a living, legally, representing veterans until they’ve been denied benefits.
However, when it comes to complicated appeals representation and issues of legal argument, CVSOs, VSOs, and NSOs generally lack training and resources and training attorneys have to develop complicated appeals.
Maybe it’s the extreme cold here in Minnesota that makes folks get a little squirrely.
As for Jewell, hopefully, the matter will get resolved quickly without losing her apartment.