We are starting to see a new metric develop with staggering implications. For over thirty years, around the time of the VJRA of 1988, there has been a gradual increase in claims adjudication times that cannot be excused due to an ever-increasing influx of filings. My claims in 1989 took exactly three months to deny from July to October. I did get a hearing exam of sorts. I’d never had a hearing test where the tones were in excess of 100 decibels such that you could hear them for weeks afterwards. Could be that’s what caused my tinnitus.
In 1994, a mere five years later, the delay had stretched to eight months from March to November. A SOC was only a month out from the filing of a NOD then. Interesting, huh?
Fast forward to 2007 and it had metastasized into sixteen months from Feb. 2007 to July 2008 just for a rating. VA needed another year for the SOC to deny my earlier effective date. Oddly, the VA kept dropping my claims after settling each one (of three). They granted the tinnitus in 2007 from 1994 but dropped the Hepatitis and Porphyria. Then they granted the Hepatitis and dropped the Porphyria. Finally, in October 2008, three days after I complained to Sen. Patty Murray, I got the Porphyria rating. That was still in the pre-VBMS electronic wunderworld we now inhabit.
We find ourselves in a vastly different landscape as of last Wednesday. We now can no longer grace our Regional Office with claims filed on Woody Woodpecker stationary and affix Tickle me Elmo stickers to our NODs and VA 9s for fear of obscuring important data for the word-searchable .PDFs. In fact, we have no access to justice other than via electronic portholes in Cheeseville, Wisconsin and Newnan’s own in Georgia. Woe betideth the WW2 or Korean Vet who was slow on the uptake to accept VR&E’s offer to retrain into computers a decade ago. Attaining service connection just became measurably more distant for them and for all who are computer challenged.
Access to the VA filing System
The break point in this new world order is access. Many of you with little or no acumen in the legal arena are going to be left to the devices of Veterans Service Organizations with less than stellar service representatives to “defend” you. Defend is a generous attempt to infuse a transitive ideal into a notably intransitive VSO verb. Most VSOs feel their job has been essentially completed after obtaining the POA. If you are lucky, you can extricate a filing on the new VA 21-526-ez short form from them before they evaporate into thin air before your very eyes. After that, they transform into magic Unicorns never to be seen again. Actually, I take that back. Lori and Tom’s American Legion rep. was like a bad penny. He kept calling up to arrange a photo shoot for Tom’s big 250% win even though he wouldn’t have recognized them if they held him up at gunpoint in a brightly lit alleyway. Granted, it had been seven long years since he had last seen them and quit taking their phone calls but what they hey? He did have a legitimate POA and, in his opinion, was entitled to his photo.
This is what provokes my gallivanting romp into the “what ifs” of the New Frontier of VA claims. What if you file via a VSO and cannot reconnect with them as the claim progresses? Pretty dumb question. We’ve been faced with that conundrum for over fifty years. How about what happens when you get the Big Brown Envelope with the Big Denial and you need good advice on how/whether to proceed? For most, the party ends here.
The Attorney Paradigm
In 2007, we were given what most Veterans consider a Godsend. At the first moment we hear or read the words ” Dear Johnny Vet, we are so sorry to inform you…”. we can pick up the phone and begin a quest for real legal help. Real inasmuch as the person you are calling will have a) a vested interest in the outcome, and b) the legal training to actually do the job of helping you as s/he was hired to do.
Every day, I receive emails from Vets bemoaning the inaccessibility to their VSO rep. -let alone the indifference and ennui. Most Vets are lucky to see their rep. more than four times in the course of the claim- the filing/POA, the NOD, a wasted DRO review/hearing and, if s/he is still employed there five years later, the VA 9 appeal. From there on out, their individual rep. is no longer in the loop and merely awaiting his fifteen minutes of Andy Warhol fame should you prevail at the BVA. Apparently, actual large dollar wins are so rare at American Legion Posts that they form a posse and mount up in search of you for the photo op. Their trophy walls must be naked. Pity the AmLeg Post whose successful service rep retires and takes his accolades home with him.
Which brings us to last Wednesday’s Thomas Murphy moment when he announced that henceforth, only electronic filings will be permitted. This was a sad day for older Vets. They now find themselves at the mercy of a system they are ill-equipped to tackle. Worse, their only recourse is a dying art form of VSO representative which is even more clueless than his forbears of the 1960s-2000s era. Murphy’s new law dictates that only electronic filings will be accepted. We can see the writing on the wall. I am now holding impromptu classes via email with a number of wives of extremely disabled Vets from my war. All of them have been forced to learn the ins and outs of Special Monthly Compensation regulations to navigate these treacherous waters because VSO reps have no clue what they are about. The absolute worst example is the gal who went in with all the ammo pushing her spouse in a wheelchair before her. Unarguably, he qualifies for a bump from SMC L to M due solely to his two 100% ratings for disparate disabilities. Her new service rep had to call up his district supervisor at the Seattle VSO office to ask how to proceed. I gave Sarah the pertinent regulation ( 38 CFR § 3.350(f)(4) to cite to. The rep couldn’t find it so she pointed it out to him in his own manual. Fortunately, they had an office copy to cite to even though it was outdated (2009). Get it through your heads, folks. This is the legal help you are depending on and what VA is attempting foist off on you as legitimate “help”.
NO SHIRTS, NO SHOES, NO CHARTER-NO DICE
Sadly, we are encountering a new facet of VSO desperation. I also get nasty letters from VSO service reps that insist if it were not for them, many Vets would never get anything. Worse, they insist their representation is free and paying a lawyer 20% is a fool’s errand. Let’s examine the VSO charter more closely. Charters to exist and represent Veterans are granted by Congress with a special oversight by the VA. In other words, if you don’t play by VA’s rules, you don’t play at all. If you are adversarial and represent the Veteran’s best interests, you are not a VA team player. In VA’s eyes, a charter grants you the right to represent the VA’s best interests to the detriment of those you seek to help. This is ass-backwards in my book. Do you want the lawyer representing your opponent to represent you as well? Doesn’t the term “conflict of interest” ever float to the top of this conversation? Worse, when you get to the BVA and you have one last opportunity to salvage this, do you want more of the same Dogpatch Justice Department pleading futilely for the benefit of the doubt? Hell, no. You want Clarence Darrow in the driver’s seat or at least O.J.’s dream team.
Many fail to comprehend that the BVA is the last stop for getting all the evidence in that your vaunted VSO rep forgot to mention you needed. You basically have one last chance to fix this before the USS Claims Boat sinks with your VSO giving you nothing more than attaboys and slaps on the back.
Real Legal Help
The moment the VA says “no” should be the galvanizing moment if you hope to prevail. How many times have I pointed out the foolish argument that you are going to win nothing if you cannot put up a viable legal defense? How many times have I heard the Vet’s refrain ” My rep says he can win it and I would be a fool to give away 20% of my win when he can do it for free?” Well, kids, if 85% of you lose using this “free” system, I’d say there’s a built-in “lose” clause everyone is overlooking. One way or another, if you use VSOs and lose at the BVA, you are still forced to use that nasty lawyer they abhor who will be standing there demanding the same 20% to bail your ass out of jail-assuming s/he can.
As I pointed out above, if your “free” Crackerjack service rep manages to drive your claims boat up on the rocks, it can be almost impossible to salvage it. Evidence is the name of the game and lawyers recognize that. Sadly, VSOs don’t or we’d see some different outcomes with noticeably different statistics on the board. I can’t count the number of you who arrive here with that “Nexus? what is this nexus thing you keep alluding to? How come my DAV rep hasn’t mentioned it? Can I win without it?”
I don’t expect to convince all of you to seek real legal help. I merely point out the need for a real attorney who can defend you against the 500 who will be arrayed against you in this process. No attorney pays me to speak these words. It would be against the law anyway for me to receive remuneration. My goal is to inform. If possible, I try to teach how to win before you are faced with the need to even contemplate the necessity for an attorney. If and when that day arrives, you must set aside your mental reservations about what constitutes “free” when the spectre of winning is jeopardized.
Giving up 20% of your instant win is peanuts if you are in this for the long haul. The obverse of this enigma is 0% of nothing- but your rep will console you with the fact that it was a “free” nothing. On the other hand, after this 20% tithe, you can continue to win every month afterwards. In fact, you can expand on your winnings at a later date by filing for periodic increases. The most important facet is that once you are “inside the wire” your claims for increase are immeasurably easier to attain as opposed to that first finding of service connection. The need for an attorney at this juncture is quite obviously not as critical. Your medical evidence is your magic wand.
Lastly, I admonish Vets to do what thousands of Social Security Lotto seekers do. After their first denial, assuming arguendo that they are indeed disabled, they enlist the services of a Social Security lawyer who is well-versed in these things. And wonder of wonders, guess how much they charge for this service? If you find one who will do it for 20%. I’ll gladly go out and buy a hat and eat it. You get what you pay for in this endeavor. If the law dog doesn’t prevail, he gets nothing. That’s a mighty strong incentive to win. Unfortunately, it’s also an incentive to take a sure win and leave questionable ones behind and the Vet’s legal needs unmet. Such is justice. Most VA lawyers are far more compassionate-almost to a fault. Certainly, there are some claims that are unsalvageable. I don’t argue otherwise. My Win or Die philosophy refuses to acknowledge that, however.
Fortunately for us, the twin life preservers of NOVA and the NVLSP attorneys are there for all of us who arrive at the Court pro se. Since none of the VSOs have staff attorneys for this purpose, it guarantees all of you will arrive pro se. Many make the choice to get real attorneys committed to helping them live to fight another day. In a more perfect world, we wouldn’t need them. But then, in a truly Veteran-friendly, nonadversarial environment where the benefit of the doubt is accorded to all of us, none should be required. The aforementioned Attorneys do this for free. The are required by law to donate 30 hours to pro bono causes and many go far beyond that. Try finding an ambulance chaser to do it.
So when that VSO rep looks across the desk at you and sneers “You’re going to throw away 20% of your win? Are you mad?”, look him back in the eye and say “Unless you have a Juris Doctorate hiding up your sleeve and have been keeping it a deep, dark secret, what makes you so sure you’ll win? Statistically, for the last one hundred years, you and your ilk have been batting a consistent .150. Why the sudden exuberance and confidence?”
Please. Don’t leave this job to your widow. Be responsible. Use your head for more than a hat rack. If air support is available, call it in. Don’t be macho and think you and your DAV dream team are going to kick ass and take names.