VeteransFirstActYesterday, the leaders of the Senate Committee on Veterans Affairs held a press conference to announce that they had reached an agreement on a piece of legislation that would bring changes to many areas of the VA. The bill, known as the “Veterans First Act,” is the product of intense negotiations among Senators from both parties in recent months. The 391-page bill contains provisions dealing with accountability, healthcare, compensation, education, homelessness, and more. Below, we’ve summarized some of the key provisions.

Accountability

If you’ve been following the various VA scandals in recent years, then many of the bill’s provisions concerning accountability may sound familiar to you. The Veterans First Act would give the VA Secretary more authority to hire and fire employees, and allow him to make his personnel decisions more quickly. It would also limit the amount of time that employees can be placed on “paid administrative leave” to prevent bad actors from collecting government salaries during lengthy investigations. Under the bill, healthcare executives who lead a VA medical center would be entitled to significant pay raises to match what they would earn in the private sector. Perhaps most interestingly, the bill would establish an independent office within the VA known as the “Office of Accountability and Whistle-blower Protection.”

Health Care

Regarding healthcare, the proposed legislation would require the VA to make prompt payment to private facilities that have agreed to participate in the Veterans Choice program. This provision was likely included in response to the many headlines alleging that the VA owes millions of dollars to outside facilities, and that some private providers were electing to abandon the program altogether because they weren’t being paid. The bill would also expand the rules allowing family members to serve as caregivers for severely disabled veterans, and make it easier for the agency to hire mental health professionals. Additionally, the bill would attempt to address the over-prescription of opiate painkillers.

Disability Compensation

The proposed legislation would require the VA to launch a voluntary pilot program under which veterans who opt-in are forbidden from submitting additional evidence after filing a Notice of Disagreement. In exchange for giving-up this important right, veterans in the pilot program would skip the issuance of a Statement of the Case and go straight to the Board of Veterans’ Appeals where they would receive a final decision within one year of filing their Notice of Disagreement. The bill would also make it easier for the survivors of recently deceased veterans to receive benefits, and would increase the oversight of VA Regional Offices by permitting reviews by the Government Accountability Office.

Education & Employment

The Veterans First Act would expand the availability of Post-9/11 GI Bill funds to mobilized reservists, and authorize additional educational benefits to the spouses and children of veterans. It would also permit the VA to reinstate a veteran’s educational benefits in the event that the school the veteran was attending permanently closes. The bill would also require the VA to coordinate with the Department of Labor and state agencies to help increase the availability of jobs for veterans, and would require a non-governmental study of job counseling, training, and placement services for veterans.

Homeless Veterans

Homelessness among veterans has been a widely-discussed topic in recent years, and the proposed legislation aims at further reducing the number of veterans without a roof over their heads. Among the provisions of the bill is one would would expand the definition of “homeless” to include those veterans who are escaping from domestic violence, thus increasing the availability of benefits and services to such veterans. The bill would also expand the eligibility of the Department of Labor’s Homeless Veterans’ Reintegration Program and authorize the VA to form partnerships in order to provide legal services to homeless veterans.

U.S. Court of Appeals for Veterans Claims

The proposed legislation would once again reauthorize the temporary expansion of the Court from seven to nine judges through the end of the year 2020. This represents a compromise from what has been proposed by several lawmakers and veterans’ advocates which would make the increase to nine judges permanent. Additionally, the Veterans First Act would change some rules concerning the availability of certain benefits for judges, and would alter the manner in which the Chief Judge of the Court was determined.

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Overall, we are pleased with the provisions of the proposed legislation. We will say that we were somewhat surprised that the bill does not contain a complete overhaul of the Veterans Choice program, which has drawn much scrutiny for its failure to reduce the delays veterans face in receiving healthcare. The expansion of the Veterans Court is an important step, but we’re disappointed that Congress hasn’t decided to require more decision-makers in the locations they are most needed: at the Board of Veterans’ Appeals. Finally, we’re skeptical of the proposed pilot program for streamlining the appeal process because, simply put, it misidentifies the problem. The issue with appeals has never been that veterans are bogging-down the process by submitting new evidence, its that the VA doesn’t have adequate procedures or sufficient staff to handle the number of claims it receives. Thankfully, for now at least, the Pilot program is only a test.

The bill represents only a proposal from the Senate, and differs in some key ways from what has been proposed over in the House. We expect there to be some changes to the ultimate legislative package that reaches the President’s desk, and we will do our best to keep you posted on future developments.

CapitolAs I’ve said before, despite an apparent decrease in the amount of delay that veterans face to receive an initial decision, veterans who choose to appeal such a decision face ever-increasing delays. There are a range of ideas floating-around out there about how the VA can fix the enormous backlog of appeals. Today I want to take a minute to take a look at some of the proposals that our elected representatives have put-forth to tackle the real backlog.

CREATE A TASK FORCE

The first member of Congress to take a stab at the backlog this year was Representative Dina Titus of Nevada. Titus’s proposal is for the establishment of a task force to study possible improvements to the appeals process. The task force would then report on its findings to the VA and the VA would be required to either implement those proposals or explain why it will not do so.

While I’m certain that Representative Titus’s proposal is well-intentioned, it lacks any concrete plan for action. As we have seen time and time again, the VA does not act to improve itself unless it is explicitly directed to do so by Congress. Against this backdrop, merely establishing a task force that makes polite suggestions to the VA is not likely to result in any material changes within the agency and, consequently, would do little to reduce the backlog of appeals.

Certainly, we need to know exactly why it takes so long for an appeal to be finally decided by the VA, and a task force might go a long way toward getting us that information. Yet when it comes time for action, Representative Titus’s plan simply does not have the teeth to get the job done.

FAST TRACK APPEALS

Another proposal to tackle the appeals backlog comes from Representative Beto O’Rourke of Texas. O’Rourke’s proposal would establish a voluntary pilot program where a veteran can opt to submit a “fully developed appeal” in lieu of the traditional notice of disagreement. Essentially, the program would require veterans to submit all the evidence they believe is needed to support their appeal along with an argument supporting their disagreement at the time they file an NOD. Thereafter, they would not be permitted to submit additional evidence.

Based on my experiences, I believe Representative O’Rourke’s proposal misidentifies the problem that needs solving. While it certainly might cause a minor decrease in delays to require a veteran to submit all their evidence and argument at the same time, my observations convince me that the largest source of delay in the appeals process is caused by the VA itself. Indeed, one need only look at the VA’s own data to see that veterans account for an average of 39 days of wait time compared to the VA’s 1,368 days.

Significantly, systems that begin as “pilot programs” often become standard operating procedure down the line. Were that to happen with this piece of legislation, veterans would be barred from presenting evidence or argument, no matter how meritorious, after the submission of their NOD. Such a rule would be fundamentally unfair in a bureaucratic and complex legal system where veterans often operate without the benefit of any assistance at all, let alone a competent attorney. Stated simply, Representative O’Rourke’s proposal does far more harm than good.

SEND APPEALS TO BOARD FASTER

The final proposal I would like to look at was made by Representative Robert Latta from Ohio. Latta’s proposal is simple: it requires the VA to send a veteran’s case to the Board within one year of receiving the form completing the appeal.

This proposal does not sound like much, but under present circumstances, it would be quite significant. As I explained previously, the stage of the appeal process that is most prone to delay occurs after a claimant submits the form completing his appeal. All the VA must do during this period is drop the claimant’s VA file in the mail, although in practice the VA often uses this period to do additional work that should have been completed earlier. On average, it takes the VA 681 days to wrap-up work on an appeal and forward the case to the Board. Under Representative Latta’s proposal, this delay would be cut in half.

While not earth-shattering, this is the only of the three proposals which would meaningfully reduce the amount of delay associated with filing an appeal. To be sure, this proposal would only impact one of many possible sources of delay. Nonetheless, something is better than nothing and Representative Latta’s proposal would shave 325 days off of the protracted appeals process for the average veteran. If we could only couple this proposal with a plan to eliminate the Statement of the Case, we would cut the average delay in half.

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A lot could be done to reduce the appeals backlog, and at least one member of Congress has the right idea. Nonetheless, several of the proposals coming from our elected representatives would not significantly reduce the appeals backlog or reduce the years of delay faced by veterans who disagree with an initial VA decision. We must therefore conclude that Congress shares at least some of the blame for the broken appeals process.

I’ve said it before, and I’ll say it again: when it comes to decision-making, the VA places quantity ahead of quality. There is perhaps no better example of this dangerous philosophy than the Board of Veterans’ Appeals’ Fair Share program.

The Fair Share program is essentially a performance-measuring system which requires the attorneys who write Board decisions to complete three decisions every week of the year, regardless of circumstances. Once you consider things like federal holidays, family vacations, sick days, or workdays devoted to other tasks, many of these attorneys end-up needing to produce one decision every workday in order to avoid disciplinary action.

Unsurprisingly, the result of these quotas is a decrease in the quality of decisions. James Ridgway, a senior official at the Board, has written that “there is ample evidence that adjudicators at both [the Board and VA Regional Offices] are required to decide a high number of claims each year, which makes it hard to produce quality decisions.”

One of the more troubling aspects of the Board’s Fair Share quotas is that the system does not differentiate between simple cases and complex cases. For example, a decision-maker is given the same amount of credit for writing a 50-page decision deciding 12 claims as he or she would receive for writing a 4-page decision addressing a single claim. The Board’s attorneys have complained that such a system does not permit them “to efficiently manage their own case load” and can require them to “work unpaid overtime during nights and weekends” in order to avoid disciplinary actions.

Fair ShareThe Fair Share program has been around for years, yet we have not seen a significant reduction in the amount of time that veterans must wait to receive a Board decision. With the exception of a couple years, the amount of wait time associated with a Board decision has trended upwards since the mid-1990s. Such statistics clearly show that the Fair Share program has not worked.

The Fair Share program is an ineffective tool to ensure that veterans receive the timely decisions that they deserve. Not only has it not reduced delays, but it has prioritized the issuance of a high quantity of decisions ahead of the issuance of quality decisions. It is time for the VA to abandon the Fair Share program as it currently exists, and find a more functional system under which decision-makers are not threatened with termination for not meeting unrealistic quotas.

Certainly, there needs to be some type of performance evaluation system for Board decision-makers. After all, a Board employee who issues only one decision per year does not deserve a government salary. Yet the current system is hopelessly broken. The easiest answer for the underlying goal of decreasing delays is to simply hire more people to issue Board decisions. Doing so would decrease the burdens on current decision-makers. Moreover, it would allow decision-makers to take more time to more carefully consider the appeals they are presented and would result in the high-quality decisions that veterans surely deserve.

On Friday, I told you about the enormous delays associated with filing an appeal after the VA denies a claim. After I posted that story, a letter arrived in our office suggesting that the delays associated with filing an appeal are far-longer than what is represented by the VA’s data. The letter so perfectly illustrates the problem of delayed appeals that I thought I would share it with you:

The Real Backlog-Part2Dear Mr. Ravin,

Thank you for your inquiry concerning your [client’s] appeal. We received your Notice of Disagreement on August 14, 2013.

Appeals are considered by the Appeals Team as promptly as possible, and in docket order. Currently, the Appeals Team is reviewing cases submitted in 2009 and early 2010. We expect your case to come up on the docket for review in the next 12-24 months.

We recognize that the appeals process can be lengthy and we remain committed to completing cases as quickly and accurately as possible. We apologize for the inconvenience that this may cause you and appreciate your patience and understanding during this time.

Sincerely Yours,

RO Director

This letter raises a number of concerns about the true nature of the VA’s backlog. Just the other day, the Secretary of the VA announced that his agency had reduced the backlog “by almost 90percent.” What the Secretary was referring to in his remarks was the reduction in the number of claims awaiting an initial decision from the VA and, indeed, the VA proudly touts the fact that the number of claimants waiting more than 125 days for an initial decision has fallen from over 600,000 in March 2013 to just over 75,000 today. What the Secretary’s statement, and indeed most coverage of the claims backlog, fails to account for is the tremendous wait associated with filing an appeal of an initial decision.

As I noted the other day, according to data published last year, it takes the VA, on average, 330 days to issue a Statement of the Case after a claimant files his Notice of Disagreement. However, according to the letter we received regarding our client’s case, it will take the VA between 1,184 days and 1,549 days to issue a Statement of the Case under the current circumstances. More troubling, the letter suggests that, as of November 2015, the VA is still working on appeals received in “2009 and early 2010,” which amounts to a delay of over five years.

What accounts for the enormous disparity between the VA’s published 330-day delay and the projected delay over 1100 days in this case? This is a difficult question to answer. One possible explanation is that the VA’s concerned efforts to reduce the backlog of claims awaiting an initial decision has led to a spike in the number of appeals being filed, thereby increasing the amount of time veterans must wait to clear the first hurdle of the appeals process. The disparity could also be due to the fact that the 330-day figure is outdated, having been released nearly a year ago in the Annual Report of the Board of Veterans’ Appeals. The Board is expected to release its latest annual report by the end of the month and at that point we should be able to see whether the delays encountered by our client are unique to the Pittsburgh Regional Office which sent us this letter or are the new norm across the VA system.

As I said the other day, while the reduction in the backlog of undecided initial claims should be applauded, we cannot allow such progress to make us lose sight of other bureaucratic delays encountered by our nation’s veterans. If the letter discussed above is any indication, the backlog of appeals will be the next big scandal.

Average Wait Time in Days-2

Take a look at this chart. This is what the real VA backlog looks like. The chart shows you the average number of days that a veteran must wait in order for the VA to take a particular action on his or her claim, based on the most recent data available. The figure highlighted in orange represents the number of days, on average, that veterans wait to receive an initial decision on their claim for disability compensation. This is the number that we hear about all the time when we read about the backlog of VA claims.

The other three figures represent the average amount of time a veteran must wait to reach the three major milestones associated with filing an appeal after an initial rating decision. Unlike the four month wait associated with a rating decision, the average veteran waits almost four years to receive a final decision on his appeal. This is a sad fact that is mostly overlooked when we talk about reducing the “backlog” of veteran’s claims but it is equally important. A few simple changes could drastically reduce the delays associated with appeals.

First, forcing veterans to wait a year to receive a Statement of the Case is an unfortunate and entirely avoidable problem. As I have explained in the past, the only difference between a Rating Decision and a Statement of the Case, or “SOC,” is that the “SOC contains a section of ‘pertinent laws’ which is little more than an extensive collection of boilerplate language highlighting the legal authorities applicable to the denied claim.” Because there is no apparent reason the VA could not simply list the “pertinent laws” in an initial Rating Decision, the SOC is an unnecessary part of the appeals process that adds nearly a year of delay for veterans who file appeals. The SOC should be eliminated entirely, and doing so would reduce the average length of an appeal by 330 days.

What is most striking about the delays associated with appeals is not the fact that veterans must wait a year for VA to send them an SOC but that they must wait almost two years for the VA to do the simplest of tasks. When a veteran receives an SOC, he files a form to complete his appeal to the Board. Once the VA receives this form all it needs to do is send the appeal documents to the Board of Veterans’ Appeals in Washington. Inexplicably, it takes the VA an average of 681 days to simply put your claims file in a box and send it to the Board.

From time to time, I have heard VA employees attempt to justify the 681 day delay by arguing that veterans often submit evidence after filing their appeals and this requires the issuance of a supplemental SOC. Assuming this is accurate, the elimination of the SOC for which I have advocated would go a long way toward eliminating this perceived issue. In any event, the fact that a two-year delay is associated with such a simple task of putting some papers in the mail is symptomatic of a broken bureaucracy. The greatest reduction of the appeals delays would be accomplished by requiring the VA Regional Offices to forward appeals to the Board in a timely manner.

Lastly, it takes the Board far too long to issue a decision once it receives the appeal. While I can acknowledge that Board decisions are considerably more complex than initial Rating Decisions, I see no reason why it should take 250% longer to issue a Board decision than a Rating Decision. For one, Board decisions are drafted by highly-trained attorneys. Thus, while Board decisions are more complex than Rating Decisions, the people who write Board decisions are also more skilled than the individuals who write Rating Decisions. The VA has a stated goal of issuing initial rating decisions within 125 days and I believe it should adopt a goal to issue a Board decision in the same amount of time.

Because we often focus on the delays associated with receiving an initial decision, we end up losing-sight of the far more extraordinary wait times that veterans face when they appeal a VA decision. Worse still, while the VA has adopted goals aimed at reducing the delay associated with receiving a Rating Decision, I am unaware of any goals which would aim to reduce the appeals wait times. Until the VA adopts a holistic approach to tackling the backlog, it has only committed itself to fixing half of the problem. It’s time we stop settling for half measures.

It all started innocently enough. In 1984 a veteran sought service connection for “residuals of a head trauma” sustained as the result of a car accident in the military. Thereafter, he was granted service connection for “head trauma with post traumatic headaches.” Fifteen years later he attempted to reopen the claim and asserted that “memory loss and depression” were among the “residuals of head trauma” he had claimed in the early 1980’s. After being granted service connection for a psychiatric disorder related to his head trauma, he argued that he was due back-pay on the claim because he had originally filed it in 1984 and the VA had never issued a decision on the psychiatric disorder when it decided the initial claim relating to head trauma years earlier.

After the argument was rebuffed by the Board and the Veterans Court, he appealed to the U.S. Court of Appeals for the Federal Circuit where, like a snowball rolling down a hill, his claim morphed into something frightening. The Federal Circuit held that the veteran was not entitled to back pay because his 1984 claim for a psychiatric disability related to head trauma had been silently denied when the Regional Office granted service connection for “head trauma with post traumatic headaches” without mentioning a psychiatric disorder. The Federal Circuit explained that when a “veteran files more than one claim with the [Regional Office] at the same time, and the [Regional Office’s] decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied.”

The rule announced by the Federal Circuit has come to be known as the “implicit denial” doctrine. The implicit denial doctrine states that “a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision.” In more simple terms, the implicit denial doctrine allows the VA to deny your claim without telling you. This rule is, without question, one of the most unfortunate developments in veteran’s law of the past several decades and, despite the best efforts of veteran’s advocates, continues to wreak havoc on meritorious claims for VA benefits. The mere existence of the implicit denial doctrine is wrong for a number of reasons.

First, the implicit denial doctrine is abhorrent to the Constitution. The Fifth and Fourteenth Amendments protect a citizen’s “Due Process” rights, and entitle citizens  to “notice and an opportunity to be heard” before the government deprives them of “life, liberty or property.” In the context of VA claims, Due Process should ensure that veterans are notified of the denial of their claim and that they are permitted to respond to the denial by filing an appeal. But it does not. Several groups of judges have specifically said that there are circumstances where a “reasonable person” might receive a decision explicitly denying a single claim and understand that the decision also constitutes the denial of another claim.

To see why a “reasonable person” would never understand a decision to deny more than what it says, one need only examine the information provided to veterans who receive a denial from the Board. For at least the past two decades, the Board has informed veterans who receive a denial that it “is the final decision for all issues addressed in the ‘Order’ section of the decision.” Because an implicit denial is necessarily not explicit, a claim which is being implicitly denied cannot appear in the “Order” section of a Board decision. This begs the question: Would a “reasonable person” who receives a Board decision which states that it is only a final decision on issues listed therein deduce that it is also a final decision denying another claim which is not mentioned? The answer to this question is a resounding “no,” and for that reason the implicit denial doctrine deprives veterans of their Due Process rights.

More fundamentally, the implicit denial doctrine is incompatible with the veteran’s benefits system because it is far too complicated. Indeed, the Veterans Court has defined a poorly-understood and legally-complex four-part test to determine whether an implicit denial has occurred. As the Supreme Court said, “Congress has expressed special solicitude for the veterans’ cause” by establishing an “adjudicatory process that is not truly adversarial” and making “clear that the VA is not an ordinary agency.” Indeed, “the VA differs from virtually every other agency in being itself obliged to help a claimant develop his claim… and a number of other provisions and practices of the VA’s administrative and judicial review process that reflect a congressional policy to favor the veteran.” Stated plainly, given that Congress could not have wanted to create hurdles or traps for unwary veterans seeking benefits, it is unimaginable that Congress would have intended to create an implicit denial doctrine.

And Congress is the key to solving this situation. The implicit denial doctrine was not created by our elected representatives but by the courts. It is nothing more than a legal fiction, and Congress has the power to change it. Not too many years ago, the Veterans Court created a requirement that a claim needed to be “well grounded” before the VA was required to assist the veteran by obtaining evidence to support the claim. Displeased by this, Congress passed a law and told the court to knock-it-off saying that they were “very concerned over this situation and the resulting potential unfairness to veterans.” The implicit denial doctrine, which allows the VA to deny a veteran’s claim without telling him, should shock the sensibilities of our elected representatives. It is time for Congress to step-up and undo the damage caused by the judicially-created “Implicit Denial” doctrine.

Over the past few years, VA been pushing itself to whittle-down the backlog of undecided claims and decrease the amount of time that veterans must wait to receive a rating decision. While this is an important goal, there is reason to be concerned that the VA is simply sacrificing quality in order to issue Rating Decisions in a greater quantity. Indeed, veterans’ groups have expressed  concern that the VA is merely denying claims in order to improve the backlog statistics.

There is good reason to be worried about the accuracy of VA decisions. For instance, in materials used to train VA employees tasked with deciding claims, it is noted  that on average “between 11 and 12 percent of all VA’s claims decisions are appealed… irrespective of quality or production.” What this means, in other words, is that the VA is well-aware that it can prioritize quantity over quality and focus on issuing a greater number of decisions which may be riddled with errors because only one-in-ten Rating Decisions will ever be appealed.

Similarly, for many VA workers who decide claims, the failure to prioritize quantity over quality can result in losing a promotion or even termination. For instance, at the Board of Veterans’ Appeals attorneys who fail to issue 156 decisions each year, or about one decision every workday, run the risk  of being labeled “unsatisfactory” and losing their jobs. Alarmingly, a senior official at the Board has acknowledged that “there is ample evidence that adjudicators at both [the Board and VA Regional Offices] are required to decide a high number of claims each year, which makes it hard to produce quality decisions.”

To be sure, VA decisions have never been the gold standard of accuracy, but the recent push to increase the speed of decision-making is likely to further denigrate any level of quality control. While VA maintains that approximately 90 percent of its decisions are error-free, reviews conducted by veterans’ groups have suggested that less than one third of decisions are fully accurate. No matter which statistic you believe, it means that there is at the very least a one-in-ten chance that the Rating Decision you received in the mail contains at least one error.

What can be done to force VA to place importance on issuing quality decisions? The answer is “very little” unless you are a member of Congress. Unfortunately, we have seen time and time again that the only thing that seems to motivate change within the VA is when their executives get hauled-before a Congressional committee to answer for the scandals that arise within the agency.

You can, however, avoid becoming a victim of VA’s push for quantity over quality by filing an appeal. This is, realistically, the best way to tell the VA that you deserve an accurate decision on your claim for benefits. Unless a VA decision grants you everything you wanted and more, there is a strong likelihood that filing an appeal will reveal a significant error made in deciding your claim. And you have nothing to lose by filing an appeal because the VA cannot lawfully reduce the amount of compensation you receive without jumping through some serious hoops.

It is unfortunate that the VA seems to think that the number of decisions it issues is more important than the quality of those decisions. But remember, you can fight-back by always filing an appeal.

When I started assisting veterans with their claims, there was a fairly simple process for telling the VA that you wanted to appeal a Rating Decision issued by a Regional Office. Every rating decision told you  that “if you do not agree with our decision you should write and tell us why.” This process was easy for veterans to do by themselves, which is important because many veterans do not have a representative at this early stage in the process. This system continued without any problems that I am aware of until a short time ago when the VA radically overhauled the process for disagreeing with a Regional Office decision.

Earlier this year, the VA did away with the simple process replaced it with a mandatory form  you must complete in order to initiate an appeal. Unlike the simple process that had existed for decades, the VA now forces veterans to complete this form. The VA’s stated purpose  for this change has been to make it easier and faster for its employees to determine whether a veteran disagrees with a decision and, if so, what aspects they disagree with. To me, this is a poor motivation. The focus should not be on making the lives of VA employees easier, it should be on ensuring that veterans are able to do what is necessary for their claims without jumping through bureaucratic hoops.

One of the worst parts of the new form is that it uses confusing terminology. For example, the form asks you  to “list each specific issue of disagreement and note the area of disagreement.” The problem here is that the law does not define what an “issue” or “area” of disagreement is. Even the most seasoned attorneys who represent veteran have claimed  that they are at a loss to know what exactly the VA is asking for when it instructs you to list the “issue” and “area” of your disagreement. If experienced representatives do not know what this form means, then why are unrepresented veterans, including those with severe disabilities, expected to be able to figure it out?

Worse still, I fear that this form might be used as a trap for unwary veterans. For instance, the new form asks  veterans disagreeing with the disability rating assigned to specify the “percentage evaluation sought.” Why could this be a trap? Because if a veteran indicates that he wants a 40 percent rating, but is actually entitled to a 70 percent rating, the VA might say that your failure to specify that you are seeking a 70 percent rating means that you waived your entitlement to that evaluation. Indeed, during a recent court argument , the attorney for the VA did not deny that this was a possibility. For this reason, veterans completing the new form would be wise to write “highest possible rating” on the form, rather than specifying a particular percentage.

Another troubling aspect of this form is the fact that it does not allow veterans to easily indicate that they disagree with all aspects of a Regional Office decision. Unlike this new form, the other form  needed to complete your appeal contains a box you can check indicating that you want to appeal all elements of the VA’s decision. Unfortunately, although the relevant law  specifically says that a veteran may simply indicate on the new form that he disagrees with everything, and an attorney  for VA has said that this is allowed, nowhere on the form is there anything that tells a veteran they are permitted to simply say that they disagree with the whole decision. Instead, the form  instructs veterans to “list each specific issue of disagreement and note the area of disagreement.”

Several veterans’ groups have challenged  the VA’s new rule requiring the mandatory use of the new form to appeal a Regional Office decision. Unfortunately, for the time being, the VA is requiring veterans to use this complex process to initiate an appeal. The fate of the VA’s new form lies in the hands of the U.S. Court of Appeals for the Federal Circuit, and for the sake of deserving veterans, we hope that the court will do what is right and strike-down this new bureaucratic system.