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January/February 2010

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Time To Clean House

BY JEROLD A. KLEIN, CHAIR

“The more things change, the more they stay the same.” These are wise words that transcend the ages when one speaks of the ability of government to reinvent itself. President Obama was voted into office one year ago on a promise of changing “the Culture,” the way business is conducted in Washington. One year later not much has changed, especially when one reviews the workings of the Veterans Benefits Administration.

A new Under Secretary of Veterans Benefits was appointed and confirmed by the Senate. Less than a year later, the Under Secretary resigned. The backlog of nearly one million claims remains with no plans to solve the problem. There was no change, nor was change expected.

Part of the problem is the culture that remains entrenched within the bowels of the VBA, the General Counsel’s Office, and the Compensation and Pension Service. This culture of thinking is: Find a way of using “legal means” to ensure that veterans pursuing VA benefits find it more difficult to either understand what is required to support a claim or to receive assistance from the department in its “duty to assist” requirements. Veterans are not the enemy, but they are treated that way by the VBA.

Twenty-four years ago, I was given the privilege of working as a Veterans Service Officer. I received formal training in 1987 during VVA’s basic training course in Washington. The first question posed by one of the instructors was: Is the claims process between the veteran and the Veterans Administration an adversarial process? The answer should be no. The actual answer is yes. Nothing has changed in 24 years.

An example of the continuation of this culture of thinking is the November 19 VBA Fast Letter 09-49, “U.S. Court of Appeals for the (Federal Circuit) in Vazquez-Flores and Schultz v. Shenseki concerning the Veterans Claims Assistance Act (VCAA) Notification Requirements.” The Fast Letter contains guidance on notification requirements in claims for disability compensation. This letter supersedes the prior guidance Fast Letter 08-26 of September 16, 2008, which was issued following the January 30, 2008, decision by the U.S. Court of Appeals of Veterans Claims in Vazquez-Flores v. Peake.

In Vazquez-Flores v. Peake, the court held that in a claim for increased reevaluation, VA is required by 38 U.S.C. § 5103 (a) to notify the veteran that he or she must provide, or ask to obtain, evidence demonstrating a worsening or increase in severity of the disability, and how it affects employability and daily life. The court also held that the VA must provide at least general notice of the evaluation criteria contained under potentially applicable diagnostic codes (such as a specific measurement or test result) if demonstrating a worsening or increase in severity and its effect on employment and daily life would not satisfy the criteria for a higher disability rating. Relying on Vazquez-Flores, the court found that the regional office’s notice in Shultz v. Peake was inadequate.

In the decision dated September 4, 2009, the Federal Circuit Court addressed the two appeals together, since the parties made substantially identical arguments. The Federal Court found that the court erred in its notice requirements under the Veterans Claims Assistance Act, vacated its decision, and remanded both cases for the court to consider whether VA had satisfied its duty to notify under the Federal Court analysis.

In reversing the court, the Federal Court held that VA is required to send the veteran a generic notice based on the particular type of claim filed, such as for service connection or increased evaluation. A veteran-specific notice providing potentially applicable diagnostic code criteria is not required. The Federal Court held that the VA is not required to inform the veteran that he or she may submit evidence of the effect that the claimed disability has on daily life since nothing in 38 U.S.C. § 1155 indicates such evidence is relevant to the rating schedule.

The agency’s interpretation of the law may be correct as viewed by staff members of the VA Central Office Compensation & Pension Service and General Counsel staff, but the position adopted by both Compensation & Pension Service and General Counsel staff follows a pattern of thinking that underscores  the adversarial posture of an agency charged with helping veterans. That is Old School Thinking. New Thinking would have found a way not to appeal the case to the Federal Circuit Court and to adopt favorable rules to help the veteran.

What is needed is for a change in the corporate culture of VA from the current “how can we deny this veteran’s claim?” to a way of thinking that says “what do we need to do to help this veteran meet the qualifications so that we can grant this veteran’s claim?” That change must start at the top, and we believe that Secretary Shinseki, a fellow Vietnam veteran, has the right attitude personally. The challenge is to transform the VBA at every level to the new way of thinking. Those who do not get with the program, who continue to treat veterans seeking help in an adversarial and antagonistic manner, must be removed. That must be done in the VA Central office of C&P, and it must be done in each of the VA Regional offices. The gloves need to come off, and managers who do not help lead in the proper direction, with respect for veterans, need to leave, willingly or unwillingly.

“Administrations come and administrations go” is the attitude of all too many in the permanent bureaucracy who want to pay just enough lip service to keep their jobs, while continuing business as usual. That just is not good enough for Vietnam veterans or our younger brothers and sisters. It is past time for really transformative change in all of VA, but nowhere is there a greater need for positive change than at the Compensation & Pension Service.

A clear indication of a change in policy and attitude would be the creation of a veteran-friendly regulatory policy within the agency. That would require a re-education, a different line of thinking that puts veterans first, not the convenience and prejudices of some agency bureaucrats who give all a bad name.

 

 

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