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Veterans Law

How Will COVID-19 (Coronavirus) Affect VA Disability Claims?

May 1, 2020
COVID-19

VA Claims at the Regional Office Amid COVID-19

What Has CCK Heard from VA Regional Offices About COVID-19?

 VA has posted a “Frequently Asked Questions (FAQ)” section on its website that primarily addresses questions related to the coronavirus (COVID-19).  Examples of frequently asked questions include, but are not limited to, the following:

  • What is coronavirus (COVID-19)?
  • What should I do if I have symptoms?
  • What is VA doing to deal with COVID-19?
  • Can I be tested for COVID-19?

VA Regional Offices are all handling this pandemic a little bit differently; however, for the most part, the Regional Office employees have transitioned to working remotely.  VA is perhaps one of better agencies equipped to deal with a crisis like this insofar as the department already had a number of people who were staffed for telework or working from home.  For those employees who just switched to full-time remote work, VA has worked to get necessary equipment to them in order for them to continue working on veterans’ claims and appeals in a timely and efficient manner.

Prior to this, VA was focusing on eliminating the legacy appeals backlog.  As of now, VA is still promising to complete legacy claims NODs by the end of June 2020.  VA has stated it is trying to ensure that its services are still going to be provided to veterans and their family members.

What CCK Is Seeing from Regional Offices: Is VA Still Issuing Disability Decisions?

At CCK, we can see through our ability to access our client’s files electronically in VA’s online system that VA is still continuing to issue decisions.  Additionally, we have been able to see that people are working in real time on veterans’ claims.  Our clients have continued to receive phone calls from VA and therefore, VA remains fully functional.

Can I Still Submit My VA Claim, Appeal, Evidence, etc.?

Many veterans are concerned about their ability to submit claims, appeals, and evidence to VA during the COVID-19 pandemic.  The easiest ways to submit claims, appeals, and evidence at this time is to do one of the following:

  • Fax it to the Evidence Intake Center,
  • Fax it directly to the Board of Veterans’ Appeals
  • Send it by regular mail
  • Upload it electronically into VA’s eBenefits system

If veterans are wondering if they can deliver it in person at a local Regional Office, they cannot.  All Regional Offices are closed for claimants to file claims in person.  Therefore, it is not recommended to try and go to a VA location in person at this time.

Will VA Disability Compensation Payments Continue?

VA has publicly confirmed that veterans’ monthly compensation payments will continue without disruption.  In other words, VA does not anticipate that there will be any issues with benefits being stopped.  Veterans should continue to receive payments as scheduled.  Furthermore, not only will VA continue to pay benefits, but VA will also continue to make new decisions and awards that will pay veterans retroactive benefits.

Compensation & Pension (C&P) Exams During COVID-19

In terms of Compensation & Pension (C&P) exams, which are often scheduled by VA to assist in claim development, VA medical centers are beginning to contact people to cancel and postpone them.  If you are not sure if your exam is still going forward, there is a number on the form or the letter that you received when scheduling the exam that you can call to confirm.  If for some reason your exam is still taking place and you are worried about going to a VA medical center, you can certainly request to postpone.  VA has been very accommodating in this regard, stating that veterans will not be penalized for not attending exams during this time.  Nonetheless, veterans should notify VA if they want to cancel their exams rather than simply not showing up for their scheduled appointment.

Importantly, VA is now moving forward with telehealth exams so that veterans can stay home and speak with examiners via computer and have a teleconference with that provider.  However, virtual C&P exams are not suitable for all conditions.  As such, VA is not conducting them across the board.  Instead, it has determined that some conditions are more suitable for these telehealth exams.

VBA’s Decision Output: How CCK Can Tell VA is Still Working

VA created the Veterans Benefits Management System (VBMS) to essentially serve as an electronic database comprised of veterans’ electronic claims files.  It is a depository of all the information related to a specific veteran or claimant and their compensation claim.  VA employees, including adjudicators, and accredited attorneys have access to VBMS.  This online system is very important for veterans’ advocates insofar as it is dynamic.  This means that a veteran’s file is updated every time a new document, such as a decision, is added.  It also allows advocates to track the development that VA is doing on a specific appeal.  Overall, electronic access helps advocates, such as CCK, keep a close eye on what is happening on a regular basis within veterans’ files and cases.

With that being said, it is important to point out that CCK is still receiving mail every day from VA and we can see that VA is making decisions based upon two things: (1) electronic access to VA’s online database as described above; and (2) receiving mail with decisions, updates, requests, etc.

Hearings with VA Regional Offices and More RO Information

Regional Offices are conducting a small number of telephonic hearings, that is, the informal hearings under the new Appeals Modernization Act (AMA).  Such hearings are dependent on the higher-level reviewer in a veteran’s case and how their Regional Office is operating.

How the Board of Veterans’ Appeals is Operating During COVID-19

The Board of Veterans’ Appeals appears to be conducting business as usual in the sense that is has always had a very robust telework policy for a number of years.  About half of the staff attorneys who draft the decisions for the Veterans Law Judges (VLJs) were already full-time remote employees.  It is CCK’s understanding that the remaining staff attorneys, and anyone who was not previously telework-ready, were sent home and given access to work from home.  This includes staff attorneys, VLJs, and some of the administrative staff as well.    Again, from the Board’s perspective, it is business as usual as it relates to the decision-making process.  CCK has seen the Board continue to issue many decisions on appeals during this time.

Are Hearings with the Board Still Occurring?

However, the big difference for the Board involves how it is dealing with hearings.  The Board has suspended all of the travel board hearings where VLJs travel to the Regional Offices to conduct in-person hearings.  Furthermore, it has suspended in-person hearings at the Board itself in Washington, D.C. through at least May 1, 2020.  The good news is that the Board is now offering “virtual hearings,” which are fully remote meaning both the veteran and the VLJ are operating on their own computers.  Virtual hearings will continue to be offered in the meantime, but the traditional hearings that the Board offered are currently suspended.  The Board has indicated that it is going to work with veterans, veterans service organizations (VSOs), and accredited representatives to provide the essential hearings via teleconference.  However, there are technology challenges to be dealt with in this remote environment.  As such, VA’s virtual hearings program is still not fully ready to handle the thousands of hearings that veterans and claimants have requested.

Advance Your Appeal on the Docket at the Board if Diagnosed with COVID-19

The Board has announced that it will accept an advance the docket motion for veterans who have been diagnosed with COVID-19.  Traditionally, the Board will advance veterans’ cases on the docket if they are experiencing severe financial hardship, over 75 years old, or suffering from a terminal illness.  An advance on the docket typically means veterans will receive a quicker decision.  As such, it can be very helpful to veterans in getting decisions in a timely manner.  The Board has included information about motions to advance due to COVID-19 on its website.  It has also included some information about how veterans can put together these motions to advance.

What About VA Deadlines?

If veterans can show good cause as to why they are submitting late appeals, VA may waive the timeframe requirements.  In these circumstances, veterans are going to need to write to VA and explain exactly what is going on.  Veterans should tell VA why the appeal times requirements should be waived.

Do We Expect the Board to Meet its Decision Goals This Year? How CCK Can Tell

Overall, the Board seems to be functioning at full capacity with the exception of hearings.  Again, the Board was particularly equipped to work remotely as it had the infrastructure in place for many of its employees already.  It was just a matter of the remainder of employees making that transition.  For the last few years, the Board has been meeting/exceeding its quota in terms of the number of decisions it makes annually.  So far, it seems as though the Board is still on target for this year as well.  CCK’s expectation is that the Board will meet or even exceed the goals that were set for this fiscal year.  While that is great news, the bad news is that the Board still has a significant hearings backlog.

Again, CCK is able to keep track of everything that is happening at the Board due to VBMS access.  At the Board level, CCK also has access to Caseflow – a system that the Board uses to help manage the appeals under the new AMA system.  Furthermore, CCK has the ability to download a veteran’s entire claims file through Caseflow E-folder Express.  Overall, CCK has access to a number of different tools that allow our advocates to better prepare and keep track of appeals on behalf of veterans.

Is COVID-19 Impacting the Court of Appeals for Veterans Claims (CAVC)?

At the Court of Appeals for Veterans, there are currently seven full-time active judges and a number of retired judges that can be called into service.  Importantly, all of these judges are equipped to work from home.  There has been absolutely no slowdown from the CAVC because it was prepared for this challenge.  In fact, CCK just recently received a precedential decision, which is a decision that comes from a panel of three judges.  The oral argument in the case was held several months ago, but the decision was issued a couple weeks ago.  As such, the work continues both for the CAVC and CCK.  CCK does not expect any slow-downs from the Court.  In fact, just a few weeks ago the Court started scheduling oral arguments.  These arguments will not be held in-person for the foreseeable future, so they will be held by teleconference.  Importantly, even arguments for precedential decisions are going to continue.

Questions We Received From Veterans:

Will There Be Changes in Quantity or Quality of the VBA’s Output?

CCK does not anticipate seeing a big difference in the quantity or quality of VBA’s output.  As mentioned above, many VBA employees were already working from home some part of the week, if not all the way through the week prior to COVID-19.  There may be hiccups here and there in terms of sending mail as VBA continues to work through that process.  In terms of the quality or quantity, it will likely be consistent with what has occurred over the last few years.

Will Veterans Have to Wait Longer for Claims, Appeals, and Remands?

With regard to remands, there are two types: (1) remands from the CAVC back to the Board and (2) remands from the Board back to the Regional Office.   For example, if there are issues within a veteran’s claim that the Board has identified, it will send the claim back to the Regional Office to have such issues corrected before making a decision.  CCK does not expect timeframes for remands to be different.  Moreover, CCK does not anticipate the overall output of Regional Offices to be less.  However, CCK believes it will take longer for the development on remand to happen.  For example, if the Board instructs the Regional Office to obtain a C&P exam, this process might be delayed if the C&P exam cannot be conducted via telehealth conference.

Intent to File Submissions: Will VA Preserve Effective Dates and Deadlines?

Washington, D.C. Congresswoman Norton sent a letter to VA Secretary Wilkie requesting that VA indefinitely suspend all timely filing deadlines for veterans and survivors with an Intent to File submission.  However, VA is not formally tolling any deadlines, meaning the department has not necessarily taken the advice from that member of Congress.  Nonetheless, if there is any issue with submitting something on time due to this crisis, veterans can seek relief at the CAVC known as equitable tolling.  This involves making the argument that the claimant could not get the necessary paperwork filed on time due to the extenuating circumstances that is this unprecedented pandemic.  The best advice is to strive to submit everything on time and according to VA guidelines, but if that is not possible, there may be some relief.

If a Veteran Gets Coronavirus, Will VA Medical Centers Treat Me?

If a veteran gets coronavirus, VA medical centers will be available for treatment.  However, it is important to note that VA medical centers will not necessarily be able to do the testing for the virus because that is being coordinated differently in each state.  Overall though, VA medical centers will be able to treat you if you are symptomatic.

If I Get Coronavirus and Survive, Could I Get an Increase in Benefits for My Service-Connected Lung Condition?

While it is possible that veterans can receive an increase in benefits for their service-connected lung conditions as a result of COVID-19, it is not for certain.  Based on limited understanding of the way the virus works, it appears it negatively affects the respiratory system and particularly the lungs.  One would imagine that if a veteran has a service-connected lung condition and COVID-19 exacerbates the condition, it could be something to file with VA.

VA Extends Financial, Benefits, and Claims Relief to Veterans

On April 3, 2020, VA announced a number of actions to provide veterans with financial, benefits, and claims help amid the department’s COVID-19 response.  The financial relief actions include the following until further notice:

  • Suspending all actions on veteran debts under the jurisdiction of the Treasury Department
  • Suspending collection action or extending repayment terms on preexisting VA debts, as the Veteran prefers

For debt issues, veterans can contact the VA Debt Management Center at 1-800-827-0648 to make arrangements.  In addition, for health care debts, veterans can contact the Health Resource Center at 1-888-827-4817 to make arrangements.