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TAKING HIS CONGRESSMAN TO TASK -- Veterans'
Advocate
Jim Strickland writes to Rep. John Barrow.
Veterans' Advocate Jim Strickland
provides regular columns for
VA Watchdog dot Org.
If you would like to contact Jim about
his columns, you can email him here...
The archive of Jim's articles
is here...
NOTE: Jim's latest article goes
hand-in-hand with recent news about the "Attorneys for Veterans"
legislation...story here...
http://www.vawatchdog.org/07/nf07/nfJAN07/nf010407-10.htm
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From the Desk of
Jim Strickland
January 3rd 2007
Rep. John Barrow
213 Cannon House Office Building
Washington, DC 20515
Dear Congressman Barrow:
You and I exchanged a couple of pleasant and positive messages last
year. I appreciated your friendly personal replies. Our discussions
focused on S. 2694 and H.R. 5549: Veterans’ Choice of Representation Act
of 2006.
Upon learning the importance of that action, you were to sign on as a
sponsor of the bill. Because of your positive response, my assumption
that you would pro-actively support this legislation and other
Veteran-positive signs from your legislative history, you won my vote to
be re-elected as our 12th District Congressman.
The bill has passed as part of S.3421.ENR, Veterans Benefits, Health
Care, and Information Technology Act of 2006.
The intent of this bill at its original introduction was to allow
Veterans of the military forces of the United States to retain a
licensed attorney as an advocate to the Veterans Benefits
Administration. Historically, Veterans have been unable to retain an
attorney advocate in their adversarial dealings with VA because of
outmoded laws. By passage of this bill, Veterans who had honorably
served their country would be elevated to the status of other American
citizens who had not served. Veterans would then have no barriers to
their freedom of choice of representation. This would allow a Veteran
much the same freedom to approach VA as any ordinary citizen has when
they approach the Social Security Administration; with a qualified
attorney advocate at their side.
I am more than a little disappointed at the watered down version of this
bill that you and your colleagues have allowed through the legislative
process. Rather than passing a law that would have helped Veterans, this
Congress has caused us significant harm.
As we read the verbiage of S.3421.ENR (Enrolled as Agreed to or Passed
by Both House and Senate) SEC. 101, "Agent or Attorney Representation In
Veterans' Benefits Cases Before the Department of Veterans Affairs", we
discover that the "Date for Commencement of Services Subject to Fees" is
that date on which "a notice of disagreement is filed" by the Veteran in
response to a denial of an application for disability benefits by VA.
In plain language that means that the Veteran may only retain the
services of an attorney after their initial application has been denied.
It presumes that the initial application will, as has always been the
case, be filed by the Veteran himself or by a Veterans Service
Organization Officer who represents the Veteran.
The process to seek an award of VA benefits begins simply enough. A
Veteran files an application for benefits to their local Veterans
Administration Regional Office along with adequate evidence to support
the claim. If other evidence is required by VA, the Veteran is notified
of such and given ample time to collect that evidence. It is at this
point in the process that it often grinds to a halt. Knowing that, we
could assume that a professionally prepared initial application for
benefits, well substantiated by evidence that accompanies the
application, would result in VA being able to quickly adjudicate a fair
decision. As a licensed attorney may place their professional license in
jeopardy for filing frivolous applications to obtain benefits, we might
assume that more due diligence up front will be practiced.
The premise was that a complete and attorney prepared initial
application will be processed more quickly. Improving that initial
application's completeness and accuracy by having it prepared by an
attorney should have been an important benefit of this bill.
In my region (Atlanta) it's reported(1) that we experience a
22% error rate in benefit ratings, 27% of our Veterans have waited more
than one year for their initial decision, only 50% of Veterans report
any satisfaction with the process, pending appeals languish an average
of 528 days and 22% of Veterans appeal their award decision when it
finally arrives. We know many delays result from VA being required to
seek and retrieve evidential documentation themselves. Non-VA medical
records, for example, may take weeks or even months for VA to obtain. If
these records had been sought out by the Veteran and his experienced
attorney advocate and included as part of the initial application, that
decision could adjudicate more promptly.
The expertise of the Veterans Service Officer who assists a Veteran in
making that all important initial application varies widely(2).
The Service Officer is often a volunteer who is at the task only part of
the time. Of the 14 Veteran Service Organizations studied, almost half
require no accreditation training at all or only up to 40 or fewer hours
of training. Only 5 require that the Service Officer pass a test to
prove competency. Continuing education or further testing along the way
is generally not required for many Veterans Service Officers. None
require a college education. An attorney must undergo the rigorous
challenge of law school, retain a professional license granted and
governed by a state bar association, abide by strict canons of ethics
that assure us of competency in their area of practice and then
regularly document continuing professional education. Lawyers are
advocates for their clients, a much higher calling than that of
"representative".
As you know, I'm a Veterans advocate and contributing columnist to the
widely read and highly respected web journal, VAWatchdog.org. I recently
reported(3) on the high cost of rework in the VA benefits
system. In my report, it's apparent that rework of denied initial claims
resulting in a Notice of Disagreement, subsequent appeal to the Veterans
Board of Appeals and then remand back to the originating VA Regional
Office or elevation to a federal court level is an enormous financial
burden to VA and the American taxpayer. Beyond those concerns are the
very real sufferings of Veterans and their families who are forced to
wait for years for a cash benefit that is needed (and deserved) today.
Most of this high cost rework would be solved at the beginning of the
process were the initial applications received by VA in a more
professionally prepared package, similar to what an attorney must do
prior to presenting a case before a judge in a courtroom. The mind
boggles at the thought of an attorney who would find it acceptable if
25% or more of his initial actions on behalf of clients were overturned
or denied. Yet, our Veterans Service Organizations seem to believe that
this is an acceptable statistic.
As this bill stands today, Veterans now and into the future are forced
by law to choose a representative from a VSO who may work at the task
only 10 hours each week, who has little formal training, who may be
overburdened with an enormous caseload and who has little or no
professional supervision. The 800 pound gorillas, the larger Veterans
Service Organizations, vigorously opposed this bill and they have seen a
victory. The passage of this sad imitation of the original effort
assures the Veterans Service Organizations that they will have a forced
stream of new Veterans knocking at their door each day seeking help.
This gives them the opportunity to sell memberships in their
organizations and swell their numbers as they try to compete with
others.
Yes, it happens that way. I was sold a Life Membership many years ago
with the thinly veiled and whispered suggestion that my membership as a
Life Member would magically prioritize the handling of my benefits
application, moving me forward in the waiting line. It didn't, not at
all. I'm likely still listed on the roster as a proud member when those
statistics are reported.
After the initial application for benefits is denied, only then may the
Veteran retain an attorney. We know that this could be a year or two
after that first paperwork has been submitted on behalf of the Veteran
by the Veterans Service Officer. This will require the Veteran to
experience another delay as an attorney is retained and as the attorney
attempts to sort out what went wrong and why the denial was issued. As
an attorney yourself Congressman, it should be apparent that you would
much prefer the control of the process from the very beginning. Now, not
only does the attorney have to reapply for the benefits, he must undo
any damage done initially. This will result in further delays.
As you can plainly see Congressman Barrow, half a measure will be worse
than none. You've denied passage of a bill originally intended to assist
Veterans in their fight for their deserved and hard won benefits and
replaced it with a sham, a poor imitation that will cause our lives to
become more complex.
Our elected Representatives continue to fail America's Veterans through
your inattentiveness. You're greatly influenced by the powerful and well
positioned (and moneyed) Washington lobbyists while you've failed to
listen, hear and understand what the Veteran needs.
I hope that someone in your building will now at least be honest enough
to change the name of the act. The title of, "Veterans’ Choice of
Representation Act of 2006" is obviously no longer an appropriate one.
Once again, freedom of choice has been snatched away from those of us
who have fought your battles for you.
Respectfully submitted,
Jim Strickland
(1)
http://www.realcities.com/mld/krwashington/
news/special_packages/veterans/11033390.htm
(2)
http://www.realcities.com/multimedia/
nationalchannel/news/KRT_Packages/
archive/vets/vets_expertise.pdf
(3)
http://vawatchdog.org/nfNOV06/nf110706-1.htm
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Larry Scott
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