Will the Veterans Omnibus Bill really reduce the VA Claims Backlog?

Updated 27 weeks ago Special to HuntingtonNews.Net
Will the Veterans Omnibus Bill really reduce the VA Claims Backlog?

You’ve no doubt heard that the Senate is trying to move Chairman Bernie Sanders (Senate Committee on Veterans’ Affairs) bill for debate on the Senate floor as early as this week.

Supporters are touting the impact it will have on the VA Claims Backlog. But is there merit to this claim? Or are politicians just ‘blowing sunshine’?

Will the Veterans Omnibus Bill have any impact on the VA Claims Backlog.

The bill was originally introduced as S. 1950, and is now called S.1982. You can review the full text here. (Just know that as of the drafting of this post on 2-6-2014, the actual text that might be debated on the floor has not yet been submitted yet).

The bill will be known as the Comprehensive Veterans Health and Benefits and Military Retirement Pay Restoration Act of 2014.

The 1st thing that you should know is that this bill has been pushed by the DAV - they say that it will accomplish many of their "most important priorities and legislative goals" for 2014. So the bill gives us a sense what is important to the DAV.

The 2nd thing that you should know is that not every VSO supports this bill - AMVETS, for example, thinks it bloats an already bloated bureaucracy.

The 3rd thing that you should keep in mind is that this bill is the product of a very divided Senate, which is part of the most dysfunctional and detested (and largely impotent) Congress in the history of our republic, made up largely of millionaires and billionaires. (The “poorest” House Member is worth $12.1 million dollars).

There is not bipartisan support for this bill - which really helps me see who in Congress does and does not support what parts of the VA's mission. I'll be following the debate closely.

In short, the provisions that will help Veterans in areas like Employment, Health Care, Education and other areas seem to ROAR. When it comes to fixing the VA Claims Backlog, this bill WHIMPERS.

Other writers and sites give ample coverage to how this bill will help Veterans - with those writers and their analysis I cannot argue: the bill does good thing for Veterans in many areas.

But what most commentators are missing is the fact that the bill barely pays much more than lip service to the nightmare that is the VA Claims Process.

The DAV - and a few others who have their hand in the Public Coffers - claim the bill will "improve" the VA Claims process and reduce the backlog.

Don't believe that piece of spin.

Here's why.

8 of the 17 provisions related to VA Claims Processing Improvements are mere reporting requirements.

The Bill has 17 provisions under the header of "Improvement of Processing of Claims for Compensation".

8 of those provisions seek reports from the VA. Reports: I can get most of the reports they are asking for in the VA's FOIA Public Reading Room.

This was my favorite: quarterly reports to Congress on the status of the backlog. The information required can be found on the VA's website every Monday morning.

Yeah. That's a bold move Congress.

Provisions that don't improve the VA Claims Process, but make more people think about it more.

Of the remaining 9 provisions relating to "Improvement of Processing of Claims for Compensation", 4 are proposals for "task forces", study "programs", or "working groups".

For example, the bill requires the creation of a Working Group "to improve employee work credit and work management systems of Veterans Benefits Administration in an electronic environment."

For those that don't know, the "work credit" system is the single biggest factor leading to red-tape and bureaucratic delays for Veterans: an employee gets a work credit (near as I can tell) for using a claims file as a pillow while taking a nap.

This portion of the bill seeks merely to modify a broken system to "fit" new electronic processing standards.

As I've said before, you can't automate a process you can't do on paper first: so I expect this Working Group to do nothing more than generate more "work credits" for employees without resulting in real gains in processing time or rating accuracy.

Recognition of Representatives of Indian Tribes in VA Claims preparation.

Of the remaining 5 provisions relating to "Improvement of Processing of Claims for Compensation", 1 directs recognition of representatives of Indian tribes in the preparation, presentation, and prosecution of claims under laws administered by the Secretary of Veterans Affairs.

This is a vital and important step. It may be the one thing I really like about this Senate Bill, insofar as it pertains to VA Claims Processing Improvements.

Only 4 Substantive Provisions pertaining to the "Improvement of the VA Claims Process".

Here are the remaining 4 provisions that pertain directly to the substance of the VA Claims Process and the Backlog:

1) (Section 631): Treatment of certain misfiled documents as a notice of appeal to the Court of Appeals for Veterans Claims (CAVC).

The bill codifies the Court's en banc Order in Rickett v. Shinseki, 26 Vet. App 210 (March 2013).

That decision said that if a Veteran or Survivor erroneously files an appeal of a BVA decision with the VA Regional Office or BVA - instead of with the Court of Appeals for Veterans Claims (CAVC) - that it should be considered timely filed with the Court of Appeals for Veterans Claims.

This is a rare situation, and the need to codify it is questionable given the fact that the Fed Circuit is unlikely to overturn the decision.

This Section is the metaphorical equivalent to cleaning the leather seats in a car without an engine block.

2) (Section 632): Determination of the manner of appearance for hearings before the Board of Veterans' Appeals (BVA).

This section appears to make BVA hearings by video-conference the "default", except when an in-person hearing is requested by the Veteran or if the BVA thinks the hearing should be in-person.

This basically cuts some travel expense for the Board, without any net gain for the Veteran (other than the possibility that the BVA can work a case quicker when it is held by video-conference -- something that isn't borne out by my experience).

Want real change? Gut this ridiculous administrative appeal process, and model the BVA like the Merit Systems Protection Board - discovery, timelines and all.

The MSPB is statutorily required to issue decisions in 120 days - a VA employee fired for misconduct can get a decision on the merits of their termination faster than the Veteran seeking disability compensation for a Traumatic Brain Injury incurred in combat.

3) (Section 601): Medical Exam and Opinion for disability compensation claims based on Military Sexual Trauma (MST).

This section appears to revise the VA's Duty to Assist to require a C&P exam by the VA in an MST claim if there is competent evidence that the Veteran has a current diagnosis, indicia that the diagnosis is related to military service but lacks a medical opinion corroborating Military Sexual Trauma as a stressor event.

This one could go either way - right now, if you can't corroborate the stressor in an MST claim, the VA isn't going to order a C&P Exam. So this is a "plus" for Veterans alleging entitlement to compensation based on Military Sexual Trauma.

On the other hand, C&P examiners are not known for the keen medical observation or astute medical-forensic analysis, so it could just be a more politically expedient way for the VA to continue to deny compensation in claims based on a military rape, sexual assault or sexual harassment.

The real judge of the value of this measure will be how the VA implements it - if the Senate passes it as written.

Wish they'd go a step further and state that a VA C&P exam is unnecessary if an MST survivor has a private medical opinion corroborating the stressor and the resulting mental condition...but again, this is a very "play-it-safe-and-do-nothing" type of Congress.

4) (Section ): Case Representative Officers for Military Sexual Trauma Support (MST).

Now this I like.

The bill requires that a properly trained and selected individual shall act as the liaison between the VA and the Veteran/attorney if there is a claim for disability compensation based on Military Sexual Trauma.

How it is implemented, and who is chosen, will largely affect how well it works, but I like the idea and think it will help a number of Veterans who are MST Survivors.

Having said that, I hope that Congress adds a section to ensure that any Case Representative Officer in an MST claim be verified as having NO allegations or adjudications of being a harasser or assaulter in the military.

If Case Representative Officers turn out to be perpetrators of MST - and there are a good number of them floating around in the VA even now - this could be disastrous for survivors of Military Sexual Trauma (MST).

Summary.

This bill does some GREAT things for Veterans - that cannot be argued.

This bill also does a LOT for survivors of Military Sexual Trauma (MST) - in the health care and benefits arenas.

If those were the only things in this bill, I would still want to see it passed.

But let's not drink the Kool Aid - Senate Bill 1950 does little to improve VA Claims Processing timeliness or accuracy - I don't see it making much of a dent at all in the backlog.

I'm going to encourage my States' Senators to pass it: but I do intend to make clear that this bill fars way short of the mark when it comes to fixing the broken VA Bureaucracy.

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Chris Attig is the founder and owner of the Attig Law Firm, whose single purpose is to change the way Veterans experience the VA Claims Process.

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