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UPDATE: SHREDDER SCANDAL FORCES VA TO
ALLOW
RECONSIDERATION OF CLAIMS -- Temporary VA rule will
allow some veterans to re-open claims where vet says
"lost"
paperwork affected decision. But wait, there's a
catch.
All stories regarding the VA's shredder and
document handling scandal can be found on this page... click here...
http://www.vawatchdog.org/VAshredderscandal.htm
Your comments accepted at bottom of page.
-------------------------
We have lots of info for you on this very long
page.
1. Editor's note by Larry Scott. How
we got here.
2. Article on new VBA policy by Veterans'
Advocate Jim Strickland. Includes info on how to re-open your claim.
3. Analysis of new rule from vets' law
attorney. Says new rule is contrary to regulations.
4. Editor's note #2. New policy is
NOT acceptable as written.
4. VBA Fast Letter explaining new policy
and procedures for reconsideration of claims.
-------------------------
-------------------------
Editor's note by Larry Scott:
VA Watchdog dot Org broke the story about
documents critical to veterans' claims found in shredder bins at the
Detroit Regional Office (VARO) of the Veterans' Benefits Administration
(VBA), the benefits arm of the Department of Veterans' Affairs (VA).
When we published that story, we knew there would be a result... we just
didn't know what it would be. That article here...
http://www.vawatchdog.org/08/nf08/nf
oct08/nf101308-1.htm
The information in the story was verified by
multiple sources. We knew that the VA's Office of Inspector General
(VAOIG) had this
 information
since August of 2008. We also knew that the information had been
passed up the line to the very highest levels of the VA.
By early October we had pieced together the
story. It was apparent that the VA was not going to act on the
information they had been sitting on for two months, but were going to
wait for the VAOIG report and try to sweep the matter under the rug, so we
published our findings on October 13.
Over the weeks since then, more information has
come to light because of our work here at VA Watchdog dot Org... more
documents found in shredder bins at other VAROS... unopened mail piled
high... and tampering with computer files. All articles on document
mishandling are here...
http://www.vawatchdog.org/VAsh
redderscandal.htm
The veterans' service organizations began paying
attention as their members demanded action. The mainstream media got
involved, to a minor degree, and a few stories about the issue were
published. And, Congress took note. Rep. Bob Filner (D-CA),
Chairman of the House Committee on Veterans' Affairs, will hold a
"roundtable discussion" on the matter on Wednesday, November 19, 2008.
More on that here...
http://www.vawatchdog.org/08/nf08/nfno
v08/nf111408-8.htm
Which brings us to today's information.
Note will be continued below.
-------------------------
-------------------------
Article from Veterans' Advocate Jim Strickland is
below. Jim gives instructions on how to get reconsideration for a
claim where the veteran feels "any loss of claims, information, or
evidence" played a part.
by Jim Strickland
The VBA exists for a single purpose; to serve
those who have sacrificed so much for our country. The VBA and its parent
company, the Department of Veterans Affairs, is tasked with the honor and
the glory of caring for the most heroic and patriotic of all Americans.
There are no other citizens who have taken the solemn oath that if called
upon, they would sacrifice their very lives for duty, honor and country.
America is what it is because of the blood we've shed as we fulfilled our
promise.
We who served have no equal.
It has long been rumored by veterans that our Veterans Benefits
Administration intentionally destroys our valuable documents. I didn't
believe that. I often wrote that if your document wasn't in its proper
place, it was the result of the slovenly work ethic of the employees at
your VA Regional Office.
I would not acknowledge the possibility that there were employees within
the VA system who would do such a thing as act to harm a veteran. I could
not accept that. To believe a person would stoop so low and perform such a
reprehensible act to bring harm to us was not comprehensible. Those of you
who have argued that point with me know my mind was closed to the subject;
if a piece of your evidence went astray, I insisted, it was sloth by dull
government employees and nothing more.
I was wrong.
The intentional destruction of evidence that impacted the lives of God
only knows how many of us was apparently routine, an accepted part of the
daily business at your VA. That ugly fact was brought into the light
10/13/2008 only on your VA Watchdog
http://vawatchdog.org/08/nf08/nfoc
t08/nf101308-1.htm
Here we are one month later with what I believe is an historic document.
The "Fast Letter" is one of the ways that the VACO... VA Headquarters...
communicates direct orders and major policy shifts to the 57 Veterans
Service Centers or VAROs that process our paperwork. Fast Letter 08-41 was
issued on November 14th 2008 and is one of the most detailed and revealing
Fast letters of all. Click this link and go have a look at it or read it
below. (
LINK TO FL HERE ) Then return here to resume reading what it means to
you.
The document speaks for itself. The enormity of the words, "The Secretary
has determined that temporary special claims handling procedures are
appropriate to relax certain administrative claim submission requirements
for claimants who assert they submitted a claim or evidence..." can't be
overstated. The VA has quickly determined that they have been caught
performing what can only be described as illegal activities. They know we
have the evidence and they recognize that there is no defense of what took
place. This isn't a lost laptop that ultimately had no consequences for
the veteran, this is unbridled criminal activity.
Recognizing that now we know for a fact what they were up to, they are
making an attempt to minimize their damage and to get back in control of
the spin. Their efforts are far too little and it's far too late. They
were caught asleep at the wheel, totally unprepared for this one.
Having said all that, we're going to use this Fast Letter to our advantage
today. "How?", you ask.
This part is easy. If you are a veteran who has submitted a claim or any
other document from the date of April 14th 2007 through October 14th 2008
and you have any reason to believe that the document or any evidence
whatever went missing, you must act within the next year to investigate.
Pay close attention: This goes away in one year. You'll soon get a letter
from VA advising you of your rights. Act on it.
If you submitted a DD 214 and it wasn't returned, investigate. If you sent
in a marriage certificate and didn't get it back, investigate. Did they
return that certified copy of your birth certificate? If not, investigate.
Was your claim adjudicated and your award letter didn't speak to the
evidence you provided from the civilian doctor? Investigate. Have you ever
wondered just why they ignored those Statements In Support of Claim
('buddy letters') you submitted? Investigate.
You have one year from today to scour the system and leave no stone
unturned. Each of you that have the slightest thought that you may be
affected owe it to yourself and the rest of us to take action.
How do you do that? Simple.
You write them a letter. You do not call the toll free number. You don't
fax them. You don't sit down and talk to your friends and ask their
advice. You do not go to any random VSO you know of and ask them what you
should do. You write a simple, formal letter to your VA Regional Office
(now called a 'Veterans Service Center', either will do) and you tell them
you believe that your documents are missing.
That letter doesn't need to be elaborate, it just needs to make the
statement that pursuant to Fast Letter 08-41 you want another look at your
case.
Writing a letter is simple. Here's a brief example:
DATE
ADDRESS
REFERENCE NUMBERS
Dear Sir/Madame;
(State a brief history of your case noting dates, the Regional Office
where your case was adjudicated and why you believe that your documents
may have been mishandled. Keep it brief, keep it courteous and keep it
professional.
Then tell them you are asking for consideration under the temporary
special claims handling procedures in response to the 2008 records
incident and cite Fast letter 08-41.)
Close your letter.
Sign it.
Mail it using certified mail, return receipt requested.
If you need help with a letter, go to my Veterans Benefits Guide for some
examples by clicking here
http://tinyurl.com/5wxapm
What about those of you who filed on April 13th 2007 or 3 years or 30
years before that? What should you do?
You should file just like anyone else. The April 14th 2007 date is absurd
and the VA knows it. The is a weak attempt to set an arbitrary cut off
date to minimize damage to the VA and it will not stand up to scrutiny.
VA will try to minimize and contain any further injury to the
organization. They'll report low numbers, set ridiculous cut off dates and
present grandiose plans to help you. The VA damage control and spin team
is well trained and talented. Oh yeah, the VA Public Relations people are
very very good. They'll get up close to smile at you as they piss on your
boots and tell you it's raining.
They would like you to believe that you must restrict your thinking to the
set of dates they've named and nothing prior to that. Hogwash I say. The
event that was exposed by VA Watchdog was a snapshot in a long time line.
We will never be able to prove how long this had been going on nor will we
be able to prove the extent of the true damage done. If there were (x)
documents found at (y) facilities during an investigation during (z)
period of time, any reasonable person will conclude the illegal activities
were occurring in some multiple of all that long before the day they were
exposed.
The VA pulled that date out of a hat and we know it. If you file for a
reopening of a case due to missing documents that happened prior to that
arbitrary April 14th 2007 date, you may be denied at the VARO but I'll
wager even money that BVA will agree with you. I can't begin to imagine
how they could justify that date in any legal sense. As grandpa always
said, "That dog won't hunt."
The elephant in the corner of our room, that huge unanswered question
remains, "If the inspectors found (y) numbers of documents in shredder
bins that were undamaged, what would they have found had they been able to
look at the previous month's worth of the results of shredding?"
If they could put Humpty Dumpty together again, what would it look like?
We'll assume that most employees knew the inspectors were there or that
they were coming. Knowing that, those who were in jeopardy of getting
caught would minimize their illicit activities and attempt to cover up
evidence pointing to themselves. There would have been a slow-down of
their nefarious work. The conclusion one must draw is that the inspectors
saw the very tip of the iceberg...the rest had been pushed out of sight.
The next question is that of collusion amongst managers. If the events and
documents were similar from one facility to the next, was there a
conspiracy to defraud veterans and the government?
Over the years disgruntled managers or their high ranking subordinates
will always bitch about the home office. I've been to that movie, I know
the scenario all too well. The Mother Ship is always disconnected from the
reality of we who must do the real work while our fat cat bosses at
Corporate HQ smoke big cigars.
We talk about how we have learned some tricks to ensure that we can meet
the impossible demands of those fools who tell us how to run OUR
businesses. "What they don't know at the Mother Ship won't hurt them", we
say to each other. It's expected of us to be creative and find shortcuts
to accomplish the corporate goal.
I can hear the conversations now; "Joe, just between you and I, do you
think any member of your team may be 'losing' 10% of the incoming 526
forms and does that 10% put you within the range of making your numbers to
ensure your bonus?"
Joe replies, "Well Fred, you didn't hear this from me but yes, while I've
never witnessed it, I've heard it's done. Now before you say anything,
think of it this way; The demands of the numbers are impossible. There is
no way to ever achieve those goals with the budget they give us or the
idiot rules we're supposed to abide by. Just for the sake of argument,
let's say that five 526 forms disappear each week. Most of those came from
VSOs who we know are filing stuff that makes no sense. Others are from
vets who don't stand a chance of winning anything. They won't even realize
that there's any problem for 6 months or so. At that point they'll call
the toll free number to ask about it or they'll just go away. If they call
and if they're serious, they can easily refile and chances are that this
time their 526 will make it into the process. If they have any evidence
they submitted it earlier, we'll allow them an earlier effective date
after they bitch about it for a while. The end result is no harm done to
anyone who matters and you've just saved the government money by taking
care of claims that were probably frivolous to begin with. You're a silent
hero and best of all, you made your goal numbers and you get that yearly
bonus. If you think that this is happening, well, if I were you I'd ignore
it."
Is that scenario above too fantastic? I don't think so today. I think my
fantasy happened when I was so naive to believe that such conversations
weren't taking place. I'm wiser now.
We must demand to know what has happened to the employees who were caught.
Peake's foolish statement about " we don't do public floggings" (referring
to possible criminal behavior by VA employees) isn't acceptable by any
stretch of the imagination. This is not a small business enterprise in the
private sector, this is one of the largest and most expensive businesses
our Uncle Sam runs for us. We are the owners and employers of this
business as well as the beneficiaries and the ones who provided the seed
money and we pay for the day to day costs of operational expenses. We are
the only customers the VA has.
I agree that we don't need employee names to satisfy that right of
knowledge. We should be told exactly what punishment employees have
received or will receive after due process. If the system is protecting
these employees by shuffling them from office to office, we have a right
to know that.
I believe VA will attempt to protect these people and they'll deal with
them using kid gloves, fearful that one of them will write to a public
forum like this one. I believe that I eventually will hear from someone
who is being punished and thinks it's unfair and only then will we know
the truth of how serious this is.
I think VA knows that. The VA will be cautious punishing errant staff to
prevent further exposure of illegal activities run wild. I know VA has had
bigger fights...Agent Orange dwarfs this. But those other fights are of
matters where there was some intellectual debate of right and wrong and
degrees of effect. Losing a laptop was a big event but it was
accidental...a single overworked employee taking his work home, etc.
Unfortunate and against the rules but hardly criminal.
This is criminal activity that has been known and ignored by managers at
the least and actively supported and encouraged by managers at worst. VA
knows more exposure of the depth of this activity will open more doors
leading to more exposure...and so it goes.
I am not a "VA Basher". I have a lot of respect for what the thousands of
good VBA employees have done for us. Many VA employees have served our
country twice. Once in uniform and now as government employees. They speak
directly to me. I know they are as frustrated and angry as any of us are.
To damage VA or disrespect the many good people who work very hard for us
is never my intent. I recognize that the American military veteran enjoys
the finest treatment of any nation. Our benefits are generous... I enjoy
my well deserved 100%. I receive excellent health care in return for my
prior service. I'm often amazed VA functions at all given the size of the
task.
However, there is a festering wound on the body of the VA that needs to be
healed. It drags on the rest of the system.
Fixing the Compensation & Pension services of the VBA won't solve all our
problems. It will solve the most pressing issues we have with VA. The time
has come to find leaders who have the strength to get the job done.
Replacing Secretary Peake is a first step and should happen right now.
There isn't a veteran in America who would offer him a vote of confidence.
After that, we continue opening those tightly sealed doors to the scrutiny
of the owners of the VA...veterans. That is the only way to assure a
future policy of honesty and fairness for our newest veterans.
Our efforts aren't so much for us. We want an efficient, respectful and
honest VA for those young soldiers who are fighting the battle right now,
today.
If we don't give them much better than what we had to come home to, shame
on us.
You know what to do.
-------------------------
-------------------------
The following analysis of the VBA's new rule
comes from an attorney who has practiced veterans' law for many years.
My overall impression is it is too little too
late.
There is no justification to exclude veterans whose records were destroyed
prior to April 2007.
There is no justification to require veterans to actively apply for
special treatment.
By specifying that credible evidence must be date stamped the VA ignores
its own regulations which provide that a veteran's own testimony may
support a claim.
This regulation is also contrary to VA regulations mandating that the
veteran be given the benefit of the doubt.
This poor excuse for corrective action is further evidence of the
incompetence of those charged with administration and of their lack of
appreciation of the significance and effect of what they have allowed
their employees to do.
-------------------------
-------------------------
Editor's note #2 by Larry Scott
Continued from above.
The VBA could not go into Filner's "roundtable"
on Nov. 19 with nothing in their hand. They had to have something to
offer Congress and veterans to show that they have the best interest of
their stakeholders at heart other than just a "please don't shred anymore"
memo.
As Jim pointed out above, VBA has come up with a
new, temporary policy to allow for reconsideration of claims. It is
a step in the right direction, but only that. This policy only
covers claims going back 18 months and only allows for reconsideration
during the next 12 months.
WRONG! VBA should allow for reconsideration
of any claim filed at any time for "any loss of claims, information, or
evidence" and veterans should have at least 24 months to become part of
this process.
This new rule merely applies a Band-Aid to a
gaping wound and will prevent an untold number of veterans from receiving
a fair adjudication of their claim. And, as the veterans' attorney
pointed out, this new rule is contrary to VA regulations.
It's time to scream bloody murder about this
Band-Aid policy from VBA. Let the service orgs and Congress know
that this temporary rule change is not acceptable.
My sincere hope is that our service orgs and
Members of Congress do NOT accept this VBA rule as the final solution to
the document mishandling problem, but will push them to allow
reconsideration of any claim filed at any time that falls into the "loss"
category and allow vets at least 24 months to file.
-------------------------
-------------------------
Below is the VBA Fast Letter (08-41). I
suggest this be downloaded and printed and passed on to every veteran and
Service Officer you know. At this time, VA Watchdog dot Org is the
only source for this official VA document. To download your own
copy...
click here...
DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420
November 14, 2008
Director (00/21) In Reply Refer To: 212
VA Regional Offices Fast Letter 08-41
SUBJ: Special Temporary Procedures in Response to October 2008 Records
Incident
Purpose
This letter provides information and
guidance on handling assertions from claimants and veterans'
representatives that a claim or evidence was previously submitted to the
Department of Veterans Affairs (VA) and not properly retained and
considered.
Background
On August 20, 2008, the VA Office of
Inspector General (OIG) initiated an audit of Veterans Benefits
Administration (VBA) regional office (RO) mail processing.
The OIG audit team examined mail-handling activities and triage areas in
four VAROs. The team found 36 pieces of active mail and 93 other original
documents in the shred bins. The type of active documents identified
during the audits included: VA Form 21-526, Veteran's Application for
Compensation and/or Pension, VA Form 21-686c, Declaration of Status of
Dependents, VA Form 21-674, Request for Approval of School Attendance, and
documents constituting informal claims. The other original documents found
by the OIG audit team should not have been designated for disposal because
of their evidentiary value (e.g., original or certified copies of birth
certificates, marriage certificates, DD Forms 214, Certificate of Release
or Discharge from Active Duty, and medical evidence).
VA is absolutely committed to the immediate correction of this problem,
ensuring the future preservation and the appropriate handling of all
correspondence and documents submitted by claimants and their
representatives. As a result of the OIG findings, the Secretary ordered an
immediate cessation of all shredding activities in VAROs effective October
14, 2008, and a search of all shred material on hand in field offices.
That search identified 474 documents requiring action or retention.
Special Claims Handling Procedures
The Secretary has determined that
temporary special claims handling procedures are appropriate to relax
certain administrative claim submission requirements for claimants who
assert they submitted a claim or evidence within the 18 months preceding
the date all document shredding activities ceased in VA regional offices;
that is, claims or evidence submitted between April 14, 2007, and October
14, 2008. These temporary procedures are established to ameliorate any
loss of claims, information, or evidence that may have occurred as a
result of inappropriate document disposal in VA regional offices during
this period. RO personnel will use the temporary special claims handling
procedures set out in the attached enclosures to assist claimants and
representatives in establishing whether or not a claim was previously
submitted to VA but was not retained and acted upon.
Claimants must assert their request for consideration under the temporary
special claims handling procedures in response to the 2008 records
incident within one year from November 14, 2008. RO personnel will
exercise the Secretary’s authority to recognize a claimant’s or
representative’s assertion that a claim and/or supporting evidence had
been previously submitted to VA during the 18-month window from April 14,
2007 to October 14, 2008. The effective date will be established as though
the claim was received on the date asserted by the claimant. Effective
dates earlier than April 14, 2007, may be established based upon receipt
of credible evidence supporting the earlier date of document submission.
The enclosures to this document provide specific instructions on how to
handle assertions of previously filed claims where:
• there is no record the claim was received by VA,
• the claim was previously submitted, however it was adjudicated based on
a resubmission at a later date (i.e., constitutes a duplicate claim)
because the first submittal was not retained, or
• the claim was considered by VA based on an incomplete record because the
supporting evidence or information was not added to the record.
Reporting
Each Veterans Service Center Manager or
designee shall submit to his or her Area Office a weekly Missing Document
Report (see Enclosure F).
Manual Changes
As necessary, the Compensation and
Pension Service will update M21-1MR to correspond with the provisions of
this fast letter.
Questions
If you have any questions about this
letter, please e-mail VAVBAWAS/CO/212A.
Rescission
This letter self-rescinds on November
30, 2009.
/S/ Bradley G. Mayes
Director
Compensation and Pension Service
Enclosures
---------------
Enclosure A
Steps for Processing Claims Related to the October 2008 Records Incident
Step 1: Receive the Claim
All claims governed by this letter will
be controlled with only a 939 end product (EP) using the date the
assertion was made as the date of claim.
Make a special annotation on the primary claim document if the claimant or
representative asserts that:
• the claim was previously submitted and is not currently of record,
• the claim was previously submitted, however it was adjudicated based on
a resubmission at a later date (i.e., constitutes a duplicate claim)
because the first submittal was not retained, or
• the evidence was previously submitted, but is not currently in the
record and was therefore not considered in a prior decision.
The primary claim document should be annotated "Special Temporary
Procedures in Response to October 2008 Records Incident" in the same
proximity as the date-stamp.
If no claim documents are presented at the time of the assertion (for
example, during a phone conversation or personal interview), complete VA
Form 119, Report of Contact, documenting the claimant or representative's
assertion with the "Special Temporary Procedures in Response to October
2008 Records Incident" annotation.
Step 2a: Develop the Claim: Issues Unclear or Original Claim
If an assertion of a prior submittal is
received without information that permits VA to determine what issues were
claimed or addressed by the evidence, send the claimant a letter (see
Enclosure C) requesting the specific information needed. In addition, if
the assertion refers to an original claim, be sure to have the claimant
send a copy of the application or complete a new one. For example, if a
claimant calls on December 1, 2008 and asserts he or she submitted a VA
Form 21 526, on January 8, 2008, and the application is not of record,
send the claimant a letter requesting that he or she submit a copy of the
previous submittal or complete a new application with all necessary
information. If no response is received from the claimant within 30 days,
PCLR the EP 939. A decision letter is not required.
Once the issues have been clarified and the necessary documents received,
proceed with development as outlined in Step 2b or 2c as appropriate.
Step 2b: Develop the Claim: Asserted
Claim Submission on or After April 14, 2007, and Issues Clear
If an assertion is received that on or
after April 14, 2007, the claimant filed a claim but it is not of record,
and the claimed issues are clear from the assertion, the claim should be
developed per existing procedures, to include VA's duty to notify and duty
to assist (VCAA) per 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. If
the only issue raised by the assertion is the correct effective date of an
already decided claim, the claim can be processed without issuing a VCAA
notice (see Rudd v. Nicholson, 20 Vet.App. 296 (2006)).
Step 2c: Develop the Claim: Asserted Claim Submission Prior to April 14,
2007, and Issues Clear
If the claimant asserts that a claim was
submitted prior to April 14, 2007, the initial VCAA notice should inform
the claimant that additional evidence is needed to support his or her
assertion of an earlier submittal. Add the following text to the opening
of the letter (this should be the last paragraph before the section titled
What Do We Still Need from You?):
We are developing your claim because you said that VA did not resolve a
previous claim you made [or consider evidence you previously submitted].
To support your statement that you originally filed your claim in [insert
Month/Year], please submit any documents you have that show you previously
submitted this claim, such as a copy of your claim with a VA date stamp or
date stamp of your representative [insert attorney or service organization
name if represented], a dated transmittal or cover sheet from your
representative’s office, or confirmation from a deliverer of mail. We ask
that, in addition to proof that you submitted a claim previously, you
submit copies of whatever documents you submitted with that claim. If you
did not retain copies of the documents that accompanied the claim you
previously submitted, please describe the documents, and/or complete and
return the enclosed VA Form 21-4142, Authorization and Consent to Release
Information.
The remainder of this letter provides information regarding your claim.
Step 3: Date of Receipt
Control all assertions of an earlier
submittal with an EP 939 using the appropriate current date of claim. Use
the date the claimant asserts documents were submitted as the date of
receipt for award purposes if the date is on or after April 14, 2007. If
the claimant cannot identify a specific calendar date of submission,
assume the claim or evidence was received on the first workday of the
calendar month in which the claimant says he or she submitted the claim,
unless the claimant asserts documents were submitted on an unknown day in
April 2007, then use April 14, 2007.
If it is asserted that documents were submitted prior to April 14, 2007,
use supporting evidence to determine the date of receipt. Supporting
evidence can include the following: transmittal sheet, paperwork date
stamped by a claimant’s representative, delivery confirmation from mailing
source, etc. If no supporting evidence exists, assign the date of receipt
of the assertion as the date of claim.
In either case, after determining the date of receipt using the guidelines
in this letter, document the facts found on the enclosed memorandum (see
Enclosure D) and include it in the claims folder.
In cases that require a rating decision, the memorandum should be
completed by the rating veterans service representative (RVSR). In
authorization cases not requiring a rating decision, the memorandum should
be completed by the veterans service representative (VSR) promulgating the
decision and co-signed by the authorizer.
Step 4: Decide the Claim
If the claim involves a rating decision,
annotate the coded conclusion with “Special Temporary Procedures in
Response to October 2008 Records Incident, Request Received on [insert
date assertion was received by VA].” Rating decisions with this special
note will serve as documentation of consideration under the special
procedures set forth in this fast letter. Cite the memorandum regarding
the facts found on the claim receipt date in the Evidence portion of the
rating decision. The effective date for rating purposes will be the date
facts, including those regarding date of receipt, first establish
entitlement.
If the claim does not involve a rating, annotate the award sheet with
“Special Temporary Procedures in Response to October 2008 Records
Incident, Request Received on [insert date assertion was received by VA].”
Step 5: Promulgate the Decision
Implement the decision per current
procedures with the following modification to the award notification
letter when the evidence does not support the claimant's assertion. If the
claimant asserts documents were submitted prior to April 14, 2007, but the
evidence does not support a receipt date prior to April 14, 2007, insert
the following text into the section titled What We Decided:
“You reported that you originally submitted your claim on MM/DD/YYYY.
Consideration of an earlier date of claim could not be given under the
relaxed criteria for special claims processing in response to the October
2008 records incident, as this date is outside the 18-month period covered
under these special procedures. We cannot grant your claim from the date
you reported submitting it due to the lack of supporting evidence, such as
a copy of your claim with a VA date stamp, paperwork related to this claim
with your representative’s date stamp, or delivery confirmation from a
mailing source.”
---------------
Enclosure B
Steps for Processing Appeal Issues Related to the October 2008 Records
Incident
The same principles established in
Enclosure A regarding determining the date of receipt apply to
appeal-related issues, to include establishing an EP 939, completing the
memorandum, and annotating the rating decision/statement of the case. The
only modifications to these principles are noted in the steps below.
Step 1: VACOLS (Veterans Appeals Control and Locator System) Instructions
Establish all accepted appeals in
VACOLS. Annotate the “other” diary code, “Special Temporary Procedures in
Response to October 2008 Records Incident.” If a VACOLS record was
automatically closed in the pre-Form 9 stage, reactivate the record. See
the VACOLS user guide for instructions (
http://vbaw.vba.va.gov/bl/21/publicat/Users/VACOLS/part2.doc ).
Step 2a: Develop the Appeal: Issues Unclear
Adjust language in Enclosure C as
appropriate for appeal issues.
Step 2b: Develop the Appeal: Asserted Appeal Issue Submission on or After
April14, 2007, and Issues Clear
Use the asserted date as the date of
receipt of the documents in question and follow current appeal procedures.
Step 2c: Develop the Appeal: Asserted Appeal Issue Submission Prior to
April 14, 2007, and Issues Clear
If the claimant asserts that a notice of
disagreement (NOD), VA Form 9, Appeal to Board of Veterans’ Appeals (Form
9), or other evidence was submitted prior to April 14, 2007, include the
text provided below, as appropriate, in the Decision Review Officer (DRO)
election letter (for assertions regarding a NOD) or in a separate letter
for assertions regarding additional evidence, or a Form 9 not of record:
We are developing your appeal submitted under the special claims handling
procedures established for claims documents submitted during the period
April 14, 2007 through October 14, 2008. Because you said that VA did not
take appropriate action on your disagreement/appeal submitted [or consider
evidence you previously submitted] on [insert date], which is outside the
period covered by these special procedures, additional information is
needed to support your appeal.
To support your statement that you originally filed your [notice of
disagreement/Form 9/evidence] in [Month Year], please submit any documents
you have that show you previously submitted these documents, such as a
copy of your [notice of disagreement/Form 9/evidence] with a VA date stamp
or date stamp of your representative [insert attorney or service
organization name if represented], a dated transmittal or cover sheet from
your representative’s office, or confirmation from a deliverer of mail. We
ask that, in addition to proof that you submitted a [notice of
disagreement/Form 9/evidence] previously, you submit copies of whatever
documents you submitted with that appeal. If you did not retain copies of
the documents that accompanied the [notice of disagreement/Form
9/evidence] you previously submitted, please describe the documents,
and/or complete and return the enclosed VA Form 21 4142, Authorization and
Consent to Release Information.
The remainder of this letter provides information regarding your
disagreement. Use this sentence only with DRO election letter, otherwise
add the following two paragraphs.
Where Should You Send What We Need?
Please send what we need to this
address:
Department of Veterans Affairs
Regional Office
[Insert address of local office]
How Soon Should You Send It?
We encourage you to send any information
or evidence as soon as you can. We ask you to submit the information
within 30 days, but you have one year from the date of this letter to
submit evidence if you need more time. In most cases, we will be unable to
start processing your appeal until we hear from you.
---------------
Enclosure C-Documents Requested Letter
Use the following text to create a
letter to the claimant when an assertion of an earlier filing is received
without information that permits VA to determine what issues are being
claimed:
This letter is in response to your inquiry [visit to our office, letter,
phone call, etc.] of MM/DD/YYYY, in which you said you filed a claim for
VA benefits [or submitted evidence or information] in MM/YY. We cannot
determine the nature of that claim because we do not have a record of
having received it, nor are we able to locate any paperwork associated
with it. Please provide a copy of your claim with any evidence previously
submitted. If you don’t have a copy of the claim, please complete and
return the enclosed VA Form 21-XXX, providing the same information you
previously submitted. If you do not have all the evidence available,
please describe it for us and we will attempt to obtain it. We are
enclosing VA Forms 21-4142, Authorization and Consent to Release
Information, for your convenience.
Where Should You Send What We Need?
Please send what we need to this
address:
Department of Veterans Affairs
Regional Office
[Insert address of local office]
How Soon Should You Send It?
We encourage you to send any information
or evidence as soon as you can. We ask you to submit the information
within 30 days, but you have one year from the date of this letter to
submit evidence if you need more time. In most cases, we will be unable to
start processing your claim until we hear from you.
---------------
Enclosure D-Sample Memorandum
Department of
Veterans Affairs Memorandum
Date:
From: Name, RVSR [or VSR]
RE: VETERAN, IMA CSS 123 45 6789
Subj: Facts Found on Claim Receipt Date
To: File
1. Per FL 08-XX, we have determined the date of claim/date of receipt of
evidence is _______________.
2. The following information supports this decision (chose one):
______ Claimant asserts documents were previously submitted on
___________, which is on or after April 14, 2007 and before October 15,
2008.
______ Claimant asserts documents were previously submitted on
___________, prior to April 14, 2007, and this date is substantiated by
the following evidence:
____________________________________________________________
______ Claimant asserts documents were previously submitted on
_________________,
prior to April 14, 2007, and no evidence has been submitted to
substantiate this claim. Therefore, the claim receipt date is the date VA
received the assertion, ________________.
______ Other (please explain): ________________________________________
Signature(s)
---------------
Enclosure E-Examples of Establishing
Dates of Receipt
Non-Rating Scenarios
Dependency Claim
VA received a VA Form 21-686c from a
veteran on July 18, 2007, requesting his spouse be added to his VA
compensation award. On August 15, 2007, VA sent the veteran a development
letter requesting his spouse’s prior marital history and her Social
Security number. On November 12, 2007, VA sent the veteran a letter
denying additional benefits for his spouse because he did not provide
requested evidence. On November 21, 2008, VA receives the requested
evidence from the veteran and a VAF 21-4138 signed by the veteran stating
that he already submitted this evidence in October 2007. Establish an EP
939 with date of receipt as November 21, 2008, annotate the documents
“Special Temporary Procedures in Response to October 2008 Records
Incident” and add the spouse effective August 1, 2007, because the veteran
asserted he submitted the requested evidence within one year from the date
of VA’s request.
Burial Claim
A veteran passed away on August 30,
2006, and was buried on September 3, 2006. On November 15, 2008, a
surviving spouse submits a copy of VA Form 21-530 signed on September 3,
2006, but not date stamped by VA. She also provides a receipted funeral
bill dated September 3, 2006, and a statement from the funeral home that
the copy of the application was submitted on her behalf in September 2006.
A review of the claims folder does not show any evidence related to this
claim. Establish an EP 939 and accept the copy with a date of receipt of
November 15, 2008, annotate the documents “Special Temporary Procedures in
Response to October 2008 Records Incident,” and use September 3, 2006, as
the date of receipt for entitlement purposes, i.e., for determining if the
claim was received within the applicable time limit
Rating Scenarios
Original claims
1. On November 7, 2008, a veteran calls
VA and tells the VSR that she filed an original claim with VA in May 2007
for service connection for a low back condition. She was discharged from
military service on March 15, 2007. No record of that claim exists, so VA
solicits another application. Upon receipt of the new application, VA
provides VCAA notification and schedules an examination. The results of
the examination show a current low back disability exists. A review of the
service treatment records (STRs) shows that the same chronic low back
disability was incurred during service, with the same general impairment
as demonstrated at the VA examination. The effective date for the grant of
service connection is March 16, 2007. The asserted claim date (May 2007)
is after April 14, 2007, and within one year of separation.
2. Same scenario as 1, but the veteran separated from service on April 30,
2006. Without evidence establishing submission of a claim, VA will accept
a claim date of May 1, 2007. Since the claim was not received within a
year of separation, the effective date of benefits, if established, will
be May 1, 2007.
Claims for increase
1. A veteran is currently rated 30
percent for his service-connected post-traumatic stress disorder (PTSD).
VA receives a letter from him on November 5, 2008, alleging that he filed
a claim in March 2008 for an increase in his PTSD. No record of this claim
exists. VA sends VCAA notification, develops the claim, and schedules an
examination. The results of the examination show that the PTSD warrants a
50 percent evaluation. A rating decision increases the PTSD evaluation to
50 percent effective March 1, 2008.
2. Same facts as in Scenario 1, except the veteran asserts he filed a
claim in January 2007 for an increased evaluation in his PTSD. No record
of this claim exists. In addition to the standard development, VA requests
from the veteran evidence to support the effective date prior to April 14,
2007. VA does not receive any evidence to support the reported date of
claim. The effective date of the increased evaluation to 50 percent is
November 5, 2008, the date of receipt of the assertion.
3. Same facts as in Scenario 2, except the veteran submits a service
organization transmittal memo indicating that the claim was submitted on
January 5, 2007. The effective date of the increased evaluation is January
5, 2007.
Appeals Scenario
On August 15, 2008, VA receives a notice
of disagreement (NOD) from the claimant, regarding a denial of service
connection for a left knee condition in a July 30, 2007, rating decision.
On August 30, 2008, VA notifies the claimant that the NOD was not timely
filed. On November 15, 2008, VA receives a statement from the claimant
asserting that in July 2008 he requested an extension of the time limit
for filing an NOD, and included a copy of his good cause statement, which
was dated June 30, 2008. If the decision review officer (DRO) or RVSR
finds good cause for filing late, establish a VACOLS record with the date
of receipt as August 15, 2008, annotate the NOD as well as the “other”
diary code in VACOLS, “Special Temporary Procedures in Response to October
2008 Records Incident,” and proceed with current appeal procedures.
Committee on Waivers (COW) Scenario
The veteran has an overpayment of $1,000
created on January 5, 2007, as a result of the termination of his pension
award. A debt currently exists because no request for a waiver was
received and the veteran has not responded to debt collection letters. He
reopens his claim on November 1, 2008, and reports he is in a nursing home
with medical expenses that reduce his income to zero. He also asserts that
he filed a waiver request in March of 2007. The veteran submits a
statement from his county veterans services officer (CVSO) that he
assisted the veteran in completing a waiver request and the CVSO had
mailed it to the regional office. Consider the waiver request received on
March 1, 2007. The pension award should be processed if all evidence
establishes entitlement. Debt collection should be suspended pending
development and a decision on the waiver request.
---------------
Attachment F is a worksheet ...
see
original document here...
-------------------------
posted by Larry Scott
Founder and Editor
VA Watchdog dot Org
-------------------------
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