Due Process

Trump Signs Veterans Appeals Reform Act To Speed Up Appeals While Removing Due Process Rights

Due Process

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?

Source: https://thehill.com/blogs/pundits-blog/healthcare/336367-va-appeals-reform-bill-strips-due-process-from-veterans

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  1. Is there a way to know who the person judging my hearing is before I get there? After 18 years, my first hearing is in September. Have a lawyer. Have no idea what’s coming. Sounds like if the judge is less than knowledgeable, just stamp and postpone. Anticipation…of the unknowable VA.

  2. @Ben, how am I supposed to feel about this bill? After reading your input, I am with you. You asked at the end, how were Veterans tricked into this. I don’t know any Veteran who has a say in the Whitehouse, or anywhere else. Lastly, I don’t like commenting before I read all the posts. Enjoy your weekend, and, does labor day support AFGE? If so, it’s a bad day.

  3. Every bill that has come out of this Congress so far for the entire past 8 months, have been a carefully staged HOAX and a SHAM with nothing but Hot Air to show for results. None of these Bills address the actual problems that are known to be wrong inside of the VA disability claims process. This includes the enormous backlog of cases that are known to be mishandled by Bungling Fool RATERS who are in over their heads while trying to rate the medically complicated cases of environmental toxic exposures. There is NO emphasis on that population of cases, therefore, this entire Bill scheme is a hopeless orchestrated STUNT. We will all be back here next year all griping about the VA disability claims backlog that’s worse than ever before — mark my word.
    — Sue Frasier, Army Signal Corps 1970, national veterans activist.

  4. I have been asking for a copy of a memo that circulated all VA records sources that states, When a Veteran reqests his or her complete military and medical records,, DO NOT INCLUDE INDUCTION AND DISCHARGE PHYSICALS RECORDS, UNLESS SPECIFICALLY REQUESTED. An Annonimous Angel at the VA sent me a copy of this memo, which somehow came up missing during a move and I need it, NO! All veterans having difficulty gathering thier evidence Need this memo to prove the fraud that this legislation promotes.
    I was injured a number of times in Vietnam and once seriously, and should have been sent home, but being a Base Camp Warrior and never supposed to get injured, even though we flew out to Fire Support Bases almost daily as a “Gun Callibrator” for 155, 8 inch and 175 artillery, my back and sacrum were dislocated and broken hefting a 300# Chronograph and 250# generator on to the bed of a haphazardly parked Heuy. I was given only a weeks bed rest and a “lateral promotion” into the 101st DTOC (War Room and that’s a whole nother story as a Combat Flight Controller. Ironically, a Sp4, telling officers where to go. Yes really, that was my job). No Doctor, Nurse, Medic no infermery, Clinic, no report, no nothing, no record, except the “lateral promotion”. and . . .
    . . . In 1971 at Ft. Lewis, Wa., we who had just returned from Vietnam and were being discharged were warned in our debriefing that, if anyone had an injury that would require filing a claim. Do Not do it until our 6 years term of active and inactive duty is expired, or risk being reinducted and sent back to Vietnam. Much later I discovered that after 6 years, a statute of limitation lapses making filing of a claim more difficult to impossible. So put an innocuous note on the discharge physical form as a reminder of the injury to preserve evidence of the service connection.
    After many requests requests by myself and parents for my “Complete Mlitary and Medical Records”, having forgotten the location of the innocuous note, I just could not find it. Until I was given the delivery of that memo.
    I sent off another request for my complete military and medical reclrds, specifying the Induction and Discharge Physicals, and !!! BOOM !!! there it was, the evidence to preserve the still Smoking Gun Service Connection.
    By the way, my still broken back, still reminds me 24-7-365-46 years, Same Same, still in the military but denighed “Space A”
    Question – after 4 decades being 100% SC but denighed the rating and living in poverty. What is the Retro? From date of filing 1976 or reduced to 2 years 2012?

    . . . I want to thank Jim Loy (now partying with the Angels) for his website which spoke to this very same method of obfiscation and fraud in the 101st, that he also fell victim to and may this serve as a buddy letter equivelant for fellow Veterans in need.

  5. I am disturbed about the duty to assist parts of this legislation. NOVA and other groups provided comments on how this would affect due process. My major worry is that the legislation will be now be placed in 38 CFR and the M21-1 for the VSRs, RVSRs, DROs, and others to implement. The implementation is where the due process will be totally taken away. An example is the way that the percentages for IHD was implemented. The CFR states that the rating will depend upon the METs or upon the LVEF. The M21-1 further expanded on this and stated that if the doctor indicates that the LVEF is the best way to measure the function of the heart then the METs are to be disregarded. This is used to deny higher percentages based upon the LVEFs than upon the METs. And the BVA and CAVC state that the M21-1 has the effect of the law whereas the law states METS or LVER. And we all know that the VA is to provide the liberal interpretation for assigning percentages and apply the reading that gives the veteran the highest rating. Get ready to bend over and kiss your butt goodbye. By the way the VA does not provide due process (items such as the C-file) in a reasonable amount of time. I am an accredited agent and am supposed to have access to the electronic C-files and medical records. I have been issued a PIV card, but have not been able to get access from my office to the electronic files and I have been trying to get this done for 4 years. Its part of the law. Thanks VA.

  6. where is the comical punch line; disabled vets have to take college programs to lead to success..at some disabled point basic skills training is needed.
    And, if we could do the college work,
    Or, to stream line get reed of the differentiating benefits for vet living in different county, since everything is paid vi contract -not VA doing the actual function.
    Example is the “Independent Living program”.
    Army Vets keep being fed the “Soldier For Life” bull until support is needed.
    Would this be a good time to appeal? reapply?

  7. “The reforms in the bill would apply almost entirely to newly-filed appeals, and not the existing backlog, according to the VA. ” In other words, ABSOLUTELY NOTHING has been done to reduce the backlog…

  8. So basically we get the ” Well Grounded Claims Rule” back. Too many Vet’s forget that abomination given to us by Bush I. I fought and protested hard for its repeal by Clinton. Trump Where The FK is my Choice?

  9. Here in central Pa farm country, we recognize Trumps signing of this order as Swine Cosmotology. ” You can put lipstick on a pig, but it’s still a pig”. Nothing will change, except maybe SECVA will be crying to congress for more money to implement this shit storm. More I.T., more overtime, more new hires and so on.

    F-U-C-K-E-D A-G-A-I-N. ( sung to the tune from Mickey Mouse Club theme song)

    1. the only way anything changes is for people to band together and make common cause against an enemy. That’s how it works when it gets to that level. We’re at that level and have been for quite some time, several decades at the least and perhaps even more. The only way the govt realizes they fucked up is when people get up in arms enough about something that they march. The Bonus Army marched. The Civil Rights movement marched, the LGBT community marched, hell even the illegals march. So long as the govt sees us content to sit on our asses and get shit on they will continue to provide the shit.

  10. The duty to assist is routinely ignored by the VA NOW. Example: The existence of Army Field Manual 3-3 and its requirements for spraying herbicides has been known for decades by the VA. Yet, the VA never mentioned AFM 3-3 in denials of claims and argued that the claim was denied because the claimant was not in the area of exposure. We could prove our work performance was within 500 meters of the perimeter, but the VA would not accept nor approve our claims. The VA as it exists now is not a friend of veterans. We firmly believe that the unofficial but well-known by claim adjudicators motto is, “Deny, deny, deny; Delay until they die.”

  11. 9 times out of 10 all relevant information has already been processed during the denial by the RO. The duty to assist has already been done. I have never had any VSO ever help with the simplest of claims without screwing it up and ive had them all since 1981.
    If you cannot get the information yourself to file a complicated appeal then you need a GOOD attorney not a VSO. My last DRO appeal hearing i had 10 different contentions. My VSO didnt have a clue what i was even appealing and only looked over my file when I got there. I won my appeal and 8 of 10 contentions cause I was prepared. The rules are there. You just have to use them to your advantage

    1. I agree about the VSO’s not being very good. I had one who would call me two to three times a week after I called her. She would return my call and then she would call me later in the week because she did not clear her voicemails. She did not know what she was doing and would contradict herself on what she was trying to do.
      I had my own paperwork and proof and because of this, I got mine increased from 20% to 40%. She was hoping to get 10% but doubted I would get anything.

      1. imo VSO’s are parasites that need to be exterminated like roaches. Completely inept, incompetent, or crooked, sometimes a combination of all three. Your claim shouldn’t depend on how fucking chummy the VSO is with the rater. Your claim should be judged on the merits of the issues your filing about. My condition isn’t just some commodity to be negotiated over. Nobody should have to worry that their condition is being leveraged in favor of a rapid “at least you got something” outcome. This is exactly what VSO’s are all about. Then you get arm twisted into becoming a “lifetime” member of some bullshit organization. These guys exist for one purpose and it’s called self perpetuation. Some if not most of the guys at the top of these organizations have their hands in the cookie jar all the way up to the fucking shoulder.

  12. Considering how Vets have been treated in the past and the utter failure of the Vets Choice program, I think I will take a wait and see attitude.

  13. I think many folks here simply cannot perceive the true value of a bill like this. It is hard to grasp the scope of what this bill is actually useful for. So I am gonna tell you what I perceive as the genuine value of this bill.

    If printed on quality government paper and peforated into squares it could easily suplant the Montgomery Wards catalog pages that Grandpa kept in the outhouse. I think if the American public is to find any value at all in these laws “fixing” VA then we have to look outside the box, or rather inside the outside box.

    Let’s look to the outhouse for redemption, and remember to always take a backup sock to the outhouse with you in case some bastard used the last pages of paper without putting more there.

    1. VSO funny hats also make great wiping material once you take the ornamental tin pins off. Those pins could take a brown-eye out.

  14. One has to wonder where the American Bar Association is on this subject? What about the ACLU? Someone besides the toady VSOs has to be alarmed by this. Whittling away at due process for veterans may only be the beta test for fucking the rest of society.

    1. @windguy — I would also question what the NAACP would say about this given people of many ethnicities other than Caucasian are fully represented by our Active Military and Veteran populace? Not enough of a potential legal cash cow since Uncle Sam and the VA are very hard to suit?
      If it were made much easier to suit the VA and Uncle Sam, you would have to beat the attorneys off our doorsteps and block them from pestering Veterans in an “ambulance chaser” kind of way. Check.

  15. I feel like this is another cover up for failure within the va system and it is done on the backs of the Veterans again. Is it possible the Veteran can get this money for evidence collection costs back? I feel this will be a financial hardship for a lot of Veterans who are dealing with financial issues. In rural areas it is difficult to find quality counsel or counsel that deals in Veterans issues. I feel the Veterans lost on this legislation.

  16. Legal Thought Provoking- – – With less of due process and discoveries, this leaves the gate wide open, working against the best interests of Veterans, if and when a Veteran HASN’T received, or ISN’T receiving proper and established, or well intended medical care from a VA PCP, Physician Specialists, and/or other VA Licensed Professional Medical Staph, that was at least negligent in providing acceptable (to be defined) health care, and monitoring over time, and the VA has missed the mark in providing acceptable care over a period of said time, in that the Veteran’s health has deteriorated without the VA knowing so.

    With the new ‘Veterans Appeals Improvement and Modernization Act,’ it will be even harder to file a case against the VA, due to the high standards of proving a VA medical malpractice claim, and then not to have the means to thoroughly use discoveries in finding out pertinent information that supports such a claim.

    The more that I think about THIS NEW LAW, it sounds like the Art of the Deal. The Art of the Deal, is an offer (in this case a done deal), that is quite acceptable to one party with not reservations, the other party though, will have more questions as the new law is used. Many Veterans will have their claim reviewed and decided on faster, but the Veterans many not like the decisions handed down upon them. Just saying, but wait for it. – – – Nutter.

    1. And, even if the VA was aware that a Veteran had other health issues, but the VA didn’t act upon such issues, to determine the status of the health issue, and how said health issue(s) impacts the Veteran negatively, and what course of medical treatment is suggested or is being used in possibly healing the medical issue.

      In many circumstances, the higher amount of medical entries in a Veterans Medical Chart, the new law will make it even harder to implement discoveries appropriately for the best interests of presenting a case against the VA.

      To me, Trump has been out trumped by Veterans knowing that this new law, isn’t in the best interest of fairly hearing and ruling on Veteran’s claims. Therefore POTUS, you’re trumped out. In supporting you, I give up. And, I don’t apologize for it. Its only business. So frigging lame. – – – Nutter.

    2. You want the VA to take control of due process again? Hello we all agree they can’t do anything right. You openly trash the VA (Righteously So) and then want to challenge them to reinstate the old way and then you honestly think that they wouldn’t have sour grapes about it and also continue to perform substandardly in processing your claim?

      1. it says “input to short,” when entering a couple of words in dis here message area. we smarter den dat, so u can juan speak ur mines. danks.

      2. If I only had some brains it would not have taken me days to think to reset Firefox. I got email that Nutter replied but not that Nam did. Also signed up for new comments but getting nothing. iamadumbassonthepc

  17. The funny thing is, upon further reflection. Attorneys aren’t even all that effective when dealing with the VA. I’ve been waiting on a character of discharge determination DRO decision for the last 10 months. My attorney has been told there’s no eta on when I can expect a response. This is after telling me at my DRO hearing in Nov 2016 that I would have a decision by March 2017.

    When evil is no longer sufferable it is the duty of the people to abolish it. Have you suffered enough yet?

  18. The new Veterans Appeals Improvement and Modernization Act creates more non-supporting problems for Veterans; no due or discovery processes. Again, this favors the VA and not Veterans. What is this dude POTUS doing? Why not hire more claims processors? The VA spends monies on every other thing. Oh sorry, I forgot, we’re talking about benefits for Veterans. Sloppy legal work, another smokescreen, but this time carrying a HUGE amount of soot in the smoke. – – – Nutter.

    1. Maybe one of these civil rights organizations needs to step up and file a lawsuit on behalf of veterans challenging this new law as unconstitutional.

  19. Removal of due process rights at any stage of “Due process” seems a tad bit…unconstitutional….

    1. Nonhuman Test Subject type of unconstitutional. Hell, animals have more granted ‘rights’ than we have as Veterans.
      Piggy VSO’s have corkscrewed all their fellow Veterans and they do it with a grin. Look at videos of POTUS anytime with these VSO’s standing behind him and imagine the opening screen for the game “Angry Birds”. We Vets are the birds.

      1. I suppose this means more vets will show up with attorneys which may be a good thing.

      2. That’s right get a NOVA attorney. They knows there shit.
        Get Ben to help you. But get an attorney. So you
        Give him 20% of your retro. Then your good to go
        hence forth. Took my attorney 1 1/2 years.
        Make certain you qualify. Either you developed it while
        in servuce or your disibility was aggravated while in
        service. Also you must been treated for same while in
        service and it must be documented.
        Any way speak with an attorney. Don’t try it yourself
        or use

      3. Although I seem to remember a few stories back about how I said maybe it’s time to declare war on the VSO’s. Any takers now?

      4. yeah but everybody knows that in order to kill a vampire you need to stake it through the heart or cut off it’s head.

      5. The VSO hats are permanently attached to their heads, so one would of course have to remove the head to remove the power-imparting funny hat.

  20. Here’s my opinion;
    Back during the campaign, the 5 to 7 major VSO’s, [National Headquarters], backed Hillary Clinton for POTUS. When the local chapters fired back, stating what she had said about what was going on at many VHA’s nationwide; quote: *”It was a Right Wing Conspiracy Theory!”* They went silent!
    That’s being said: “Could it be these National asswipes are getting even with ALL the veterans, members, who gave them backlash?”
    Sure sounds like it!
    Maybe it’s time to audit the VSO’s!?

    1. p.s.
      If anyone can find President Trump’s speech at the American Legion National Convention, give them the “TRUE SCOOP” of how the VSO’s have sided with VA! Let the comment’s section come alive with how this bill/law will effect veterans in the claims process!
      Also, let the people know how veterans are being attacked by VA every day!

  21. “[…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….]”

    ^ Pretty much says it all. The VSO Piggy’s primary loyalty is to the teat that they suckle and value most: The VA, not-so-much their fellow Veterans. The VSO Piggy’s support for this was garnered by backroom dangled carrots and of course, brand new funny hats. The VSO’s have entirely lost their way and relevance.

    1. The only VSO’s suckling at the teat of the VA are government VSOs. VSOs associated with military service organizations, as a group, are the veterans best and only friend in the claims/appeals process.

  22. I’m a disabled veteran who pushed for this bill. Under the previous system I had a VA rep tell me she was a paralegal and that it’s not the Ava responsibility to assist me in building my claim by gathering evidence. So it seems what you fear most about this bill was stuff that was already common practice in the VA. I have all VA calls on recordings just to protect myself and good thing cause I’ve caught them giving false info more than once and they even mailed me forms to fill out that day right on the form that the veteran is not to fill it out.

    I’ve spent 12,000 dollars acquiring medical evidence on my own in the past 1.5 years while waiting in the appeals process. So having to pay out of pocket to support my claim is nothing new.

    1. She lied to you my friend. The VA IS required to help you win your case. Now if they do it is another subject, but the law says they have to try

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