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VA Mail Fail

We discussed VA’s mailing challenges and how veterans may be impacted. Check out our BLOG on the video here.

 

VIDEO TRANSCRIPTION

 

Robert: Good afternoon Facebook Live. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me today is Katie Briggs and Jonathan Greene, and we’re here to talk about mailing issues with the VA. But before we start that, I have a couple of announcements. Yesterday, VA reported that they have made some progress on what they’re calling the backlog. And in this particular case, they’re referring to the initial claims backlog. And the initial claims backlog is down to 70,953 cases in the backlog. And that’s down from 611,000 claims in the backlog as of March 2013. And Jon, as I understand what they’re talking about here, they’re talking about the time to adjudicate initial claims in the 125-day window. So, that’s a pretty impressive stat, and we’re very happy to see that. But I think it would be fair to comment that that does not include what’s happening with appeals.

Jonathan: That’s right. So, it’s nice to see the progress made with the original claims. But most of the time is spent waiting on appeals, which takes usually years. The life of an appeal is measured in years and not months. And so, there’s a lot of room for improvement as far as – as from our perspective.

Robert: And we’re hoping that Appeals Reform and RAMP are going to solve some of those problems and decrease that. In fact, there’s been some progress on RAMP from what we understand and when we’re doing this new – our next Facebook Live. Sorry. We’ll give an update on what the RAMP statistics are showing. But this really brings us to our main topic today, and that is the challenges VA is having right now mailing documents, decisions in particular. Whether that’s an initial rating decision, a Statement of the Case, a Supplemental Statement of the Case, all three of those things trigger responsibilities on behalf of the veteran to file appeals. So if those documents are not being mailed out appropriately and timely to the veteran or the veterans representative like a veterans service organization or to an accredited attorney or accredited claims agent, that presents a number of challenges. So Katie, you’ve been monitoring this challenge for us for a while, why don’t you share what our experience has been here at Chisholm Chisholm & Kilpatrick with the VA’s mail challenges?

Katie: Yeah. So, we’ve definitely noticed over the last couple years especially that VA has not been mailing, not only representatives but veterans, copies of those decisions, which they should be.

Robert: And Jon, do we have a reason why that’s happening? Do we have any intelligence from the VA from our conversation with them as to why that’s happening?

Jonathan: We haven’t been given any specific concrete reasons for why it’s happening, but VA doesn’t deny that this is a problem. We’ve spoken with some people from their Office of Business Integration, which I understand it to be their logistics department. And they recognize that this is a problem. And VA mails out millions and millions of documents every year, hundreds of millions of documents every year. It’s understandable that there’s going to be some issues. But we’ve noticed this as what we would deem to be a chronic problem for a few years now.

Robert: I think one of the important things to point out is in the last few years VA has tried to go to a centralized mailing system. And from what I understand, first of all, the first step was that was something called the EIC, which was the Evidence Intake Center. So every document that was sent to VA went through the Evidence Intake Center, was scanned, and became an electronic document. So, that’s how mail gets processed at the VA when it comes into the VA. The converse of that is I don’t think there was, at least until recently, a centralized mailing plan for outbound mail. And so, as we all know – but it’d be helpful, I think, to explain there are some 53 Regional Offices that could be sending mail. And not everyone may have the exact same process, we actually aren’t sure of this, but we suspect that might be some of the problem. And now, they seem to be switching or going to a centralized mailing system from our conversations. Does that sound right?

Jonathan: That’s true with a lot of different problems that we experience. And in dealing with the VA is that they do have Regional Offices all over the country, and all of those Regional Offices do, to a certain extent, act independently. So when they are responsible for doing their outgoing mail, even if it’s just triggering a centralized mailing system to send outgoing mail, there’s going to be some inconsistencies between those Regional Offices.

Robert: Jon, can give you a second? It looks like we’ve been having some technical difficulty. I think the microphone that we’re using was not tightly plugged in maybe. Is that better? We’re getting sound quality now? Give us one second. Sorry about that.

Robert: Okay. Okay. Well, I hope that corrects it. But go on, Jon. I’m sorry.

Jonathan: So, like I was saying, so there was this inconsistency going on with one Regional Office was handling their outgoing mail in a certain way, another Regional Office would handle it in a different way. And certain Regional Offices might have had different interpretations of what their obligations were as for sending out mail to advocates and to the disabled veterans themselves. And now there’s been this move, as Robert mentioned, towards a centralized mailing system. And as with any change especially across a bureaucracy like within the VA, there’s going to be some challenges and some growing pains.

Robert: So I think a fair point to start is what is the actual statutory, the law that governs this and what does it actually require VA to do? So if we could start with that, who would like to tackle that?

Jonathan: I think it’s easy to go ahead and read them. There’s a few that deal with it. But Katie, if you want to go ahead and read the relevant part of the statute there.

Robert: And this is a 38 USC…

Katie: 5104.

Robert: 5104, that’s the law. Okay.

Katie: So 38 USC 5104 states the Secretary shall on a timely basis provide to the claimant and the claimants representative of notice of a decision.

Jonathan: And then the corresponding regulation is 38 CFR 3.103. If you want to read subpart B-1?

Katie: It also states that claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief.

Robert: So it’s interesting that this statute and this regulation don’t use the word mail, do they?

Katie: No.

Robert: But VA has policies, written policies in the M21. And those policies actually require a mailing now, if I’m understanding, the latest version of them.

Jonathan: That’s correct. The M21, the most updated version dealing with their mailing procedures does say that the mail should be printed and mailed through the Centralized Benefits Communications Management Program, which is referred to as the CBCM. So it is instructing them to mail. There are other statutes dealing with obligations for the Board and some others that touch upon the mailing of or the need to provide notice for certain documents like a Statement of the Case. But basically, the obligation is clear that they have to provide notice.

Robert: Okay. Again, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. And today we’re talking about some of the mailing challenges that the VA has. If you have any questions, please reach out to us on Facebook. Thank you. Oh, can we describe what the M21 is? I believe that is the manual that the VA relies on for procedures and policies at the Regional Office level essentially. It’s their written guidelines.

Jonathan: That’s correct, the Regional Office guidelines for their policies and procedures. It is very, very extensive, very difficult to kind of navigate through, unless you’re really well-versed in it. But we are occasionally provided with updates on changes to the M21 and we knew – we know that they adhere to it and follow its guidelines when they’re doing things like providing notice to claimants.

Robert: So Katie, I want to toss this question- next question to you. When we start representing veterans, we sign a form and that form allows us to have access to each veteran’s claims folder. Correct?

Katie: Yup. Correct.

Robert: And we also have access to something called VBMS. And can you tell us what VBMS is and why that’s important to representatives when they’re helping claimants with VA claims?

Katie: Sure. So VBMS stands for the Veterans Benefits Management System.

Robert: Very good.

Katie: And it is the online system that VA uses to track all veterans’ claims and appeals so some of us at CCK have access to that.

Robert: And so you’re actually able to go in and, for example, look at the status of a claim online.

Katie: Correct.

Robert: You can see decisions.

Katie:  Yup.

Robert:  You can see medical evidence.

Katie:  Yes.

Robert: And statements that might have been submitted. So, basically the file becomes electronic and it’s held through this portal that we access called VBMS.

Katie: Yup. That’s correct.

Robert: So my next question is – well, if we have access to VBMS, why does VA need to be mailing us decisions?

Katie: That’s important because unfortunately not a lot of people have access to VBMS and nothing prompts you to check VBMS. So if we don’t know that a decision has been issued, we can’t be prompted to check VBMS.

Robert: And we have more than one claimant that we represent and it would be nearly, or next to impossible, to check every single claim every single day to see if anything happened.

Katie: Correct.

Robert: Our understanding, however, is that VA does have the ability to send notification within VBMS to certain representatives, including service organizations.

Katie: Right.

Robert: I’ve never seen that actually done. But I’ve been – it’s been explained to me that there is an electronic notification to certain service organizations and then they would get a trigger to go in and look at a particular file.

Katie: Right.

Robert: But that has not been extended to accredited agents or accredited attorneys as far as we know.

Katie: Right.

Robert: At this point. Jon, let’s talk about why this is a problem. If, for example, we do not receive a Statement of the Case, why is that a problem for us? And more importantly why is it a problem for the veteran?

Jonathan: So, when you – when a Statement of the Case is issued, there’s a deadline to appeal, to perfect the appeal to the VA Board. So a Statement of the Case is a good example because you only have a 60-day window or a year from the preceding rating decision to file that appeal, to file what they call a VA Form 9. So 60 days is not a lot of time. So, if you don’t get that decision shortly after it’s issued, then the clock is going to be ticking. And if the 60 days runs, then that decision could become final. And if the veteran wants to continue pursuing the benefit that was previously sought in the Statement of the Case, then they’re going to have to file again and effectively go back to the start of the line.

Robert: And the other thing to lose is the potential for the retroactive benefit.

Jonathan: Right. There’s a real monetary concern there.

Robert: Okay. So let’s talk about how many of these cases do we have where we were not timely notified of a decision?

Jonathan: So just to give a little bit of history on this, Katie had talked about the Veterans Benefits Management System, which is essentially – it contains a lot of good information. But it is also the electronic file is there, all of the documents separately located with a hyperlink to them. We started noticing a few years ago when we got access to VBMS that there were decisions in there that we had never received. And the appeal period had run and then we started tracking this. Before we noticed that it was a real chronic problem. It wasn’t limited to a certain Regional Office. It wasn’t limited to just a certain period of time or something like that. It was ongoing and the decisions were all over the place. So to us, we started tracking this. I believe really focusing on it at the end of 2015. And then I don’t know if you want to talk about what we’ve been kind of doing since, but…

Robert: And if we have any actual idea of what the number of these are.

Katie: Yeah. I mean I think – especially in the last couple of years that we’ve been sort of tracking this, there’s definitely been hundreds just for our office where we are not getting copies of the decisions. But I mean across the country, I can imagine it’s probably in the thousands.

Robert: Okay.

Jonathan: I mean hundreds, and that’s even the ones that we know about. It’s difficult to go back through the entire file and recognize where we were mailed or not mailed a decision or where the client was mailed or not mailed a decision.

Katie: Right.

Jonathan: And like Katie said, we don’t know – other people are obviously affected by it. We talk to different advocates and they’re affected by it and a lot of unrepresented veterans I’m sure are affected by it.

Robert: Okay. So this is really a nationwide challenge with their mailing, at least that’s our perspective on it.

Jonathan: Absolutely.

Robert: Okay.

Jonathan: And VA doesn’t seem to dispute that.

Robert: Okay. And we know that because we’ve been communicating with this Office of Business Integration, which is part of VA’s central office, which is basically in charge of governing all policies and procedures for claims.

Jonathan: Correct. I think of it as their centralized logistics.

Robert: Okay. So what happens when we receive a Statement of the Case past the appeal time, whether that’s more than a year out from the rating decision or more than 60 days after the Statement of the Case? What do we do in that typical case?

Jonathan: Well, after doing some analysis about the merits of the claim, we would generally speaking, assuming we want to pursue it, file an appeal. And within the appeal, throw in some language explaining why the appeal is timely, basically saying this wasn’t mailed out as is required. Notice wasn’t provided as is required under the law, and therefore the appeal is timely because we never received that notice.

Robert: And we’re actually submitting an affidavit or a sworn statement saying we never received this. This is how we found out about it and explaining all that. So that triggers this idea of, well, why doesn’t the VA then just find the appeals timely? And there’s this rule of law called the presumption of regularity. Who wants to tackle that one? Don’t all jump at once.

Katie: Well, the presumption of regularity basically states that it should be presumed that VA and VA’s employees are doing their job, unless we can…

Robert: Rebut.

Katie: Rebut.

Robert: The presumption.

Katie: Yeah.

Robert: And so, that’s what we’re trying to do. We’re trying to not only file what we call the merits appeal, that is why the decision was wrong. But we also have to come up with evidence to prove that we have rebutted this so-called presumption of regularity. And many times, that’s the issue we end up litigating. And so, I’d like to go to our handy-dandy Legacy Appeals chart, if we could, and walk through what actually happens. So can we- can we see this okay? Okay. Give us one second here. So I’m going to stand up and walk through. So, imagine that the VA mails a decision or doesn’t mail a decision. Okay? To us and a year passed after the date that they were supposed to. And imagine they denied service connection of post-traumatic stress disorder, we thought that decision was wrong. We then have to say why the decision was wrong. But we also have to submit evidence as to how we rebutted the presumption of regularity. That is that they never mailed the decision. Here’s the policy and procedure that requires it, and the VA did not do it timely. We then end up litigating sometimes all the way to court the issue of whether the appeal was timely filed. And assuming the court finds the appeal was timely filed, it then remands the case, usually back to the Board and the Board may then in turn remand it back to the Regional Office for what we call the merits determination as to whether the appeal for PTS should be granted in the first instance. And that cycle of life, if you will, for that first round of the appeal can be anywhere from 3 to 5 years. And then if you have to go all the way back through again is 3 to 5 years again under the current Legacy Appeals system.  All of that is potentially subject to change when the new Appeals Reform goes into – goes operational supposedly in February 2019. But this really causes a delay for veterans if they’re litigating the timeliness of an appeal as opposed to the merits of the appeal. And that’s really the harm caused here. The other thing I want to talk about was the GAO, the Government Accounting Office, issued a report in July of last year. And what basically did that GAO report tell us?

Jonathan: So, yeah, that’s right. So they did, from what I understand, essentially an audit of VA’s mailing system, the Government Accountability Office. What they found wasn’t great. It wasn’t exactly focusing on the mailing of decisions. But it did touch upon it and find that VA is not managing its mail program effectively as it lacks key elements of an effective mail management program. And without agency wide performance measures for mail operations, VA is unable to determine the extent to which its mail operations are efficient and effective. So it kind of was saying, VA isn’t equipped to know what’s going on with its mail, with its mail system which is a conclusion that we had already reached by that point. But it did give us some ammo, so to speak, to use when we’re making these arguments to rebut the presumption of regularity, which requires clear evidence to the contrary. So the presumption of regularity says that there’s a presumption that VA employees are doing their jobs properly. I think that this is pretty good evidence that no they might not be. We might not actually be getting mailed these decisions, and here’s why. And then usually submit a copy of the report and cite to some key language in it. The report is about 20 pages long. It’s not a monster and it is a fairly easy read.

Robert: I believe we have this report link to Facebook right now. So if you want to check us out on either our website or Facebook Page, that GAO report is there. So Katie, we – I’d like to show a document that we recently received, and to say it was kind of surprising would be an understatement and we didn’t really know what it is. So first of all, let’s show our audience what this document was and we’re just going to hold it there for a second to make sure it’s visible. And essentially, what this was this was a document that was mailed to us. Why don’t you explain?

Katie: Yeah. So we started getting a few of these…

Robert: Bring it forward a little bit maybe?

Katie: We started to get a few of these in the mail, the past few months, and we really weren’t sure what they were. It’s just an Adobe icon. It has no information regarding a claims number or a veteran’s name. So we had no idea what VA was trying to send us. After reaching out to a couple of VA employees, they let us know that it was VA’s attempt to send us something.

Robert: And we don’t know whether it was a decision, a Statement of the Case, or some other document.

Katie: Right. It could’ve been anything.

Robert: Okay. And we’ve also learned, Jon, from some of our other friends around the country that practice in this area that they’re getting similar documents to this.

Jonathan: Yeah, and it’s alarming. It’s a little bit scary because you get this ominous sort of Adobe icon which could be anything. It could be a decision where the clock is ticking. It could be a grant of benefits. It could be recognizing that a case should be expedited when the client is terminally ill. We have no idea what it is. It could be a simple status letter. And then you have to… we’ve been notifying VA that we get these because we have gotten a number of them. And then what they usually do is well get back to us and say, “Yeah, we looked into it,” and provide some sort of assurance that, oh, we sent out the actual mailing. And you just have to trust that it was mailed and you don’t exactly get any sort of verification linking what this is to what the document that was later properly sent was.

Robert: But they should be able to do that because it looks like there’s some kind of a barcode that would trigger that ability. Right?

Jonathan: I would think so. And we do mail this, we do send this back electronically so they are able to theoretically look it up and address it. But like we’re talking about with the GAO report, there’s a little bit of chaos in their mailing system. So whether or not they can actually link that back, I don’t know. I don’t work there.

Robert: Again, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. We’re talking today with Katie Briggs and Jonathan Greene and we’re talking about the VA’s mail challenges. If you have any questions to us, and I keep saying mail, mailing challenges. If you have any questions, please reach out to us on Facebook. Are there any questions presently? No. Okay. So we’ll continue on. Just a couple more points and then we’ll be finishing up. So we talked a little bit about what veterans and advocates can do in this particular case. Is there anything else we want to share with our audience about what can be done?

Jonathan: I think it’s important to – what we started to do is we started to track each case where we found that they were not mailing us a decision. So we would look in VBMS or we would become otherwise aware that this decision wasn’t mailed to us. One other way to become aware, by the way, is the client – your client might have gotten a copy of the mailing. And then somewhere in the decisional document, it’ll say that it carbon copied you as the advocate and then the advocate never received it. So sometimes a client will call and say, “I got this decision. Can we go through it?” And we will say, “We didn’t get this decision. But we’d be happy to go through it. Please send us a copy,” and then later on we find that VA never mails that to us. So we track that as one that they never sent out. And then there’s many cases where they don’t send it to the client or the advocate. So we started tracking these. We note the Regional Office it’s coming from or the Regional Office that has jurisdiction over the case and the file and we periodically will send this list of decisions that were never mailed to us to some of the people in VA’s central office to at least continue to notify them that this is an ongoing problem. And I think advocates and/or veterans out there to do the same. I think it would be helpful to just continue to notify VA that this is going on. It’s not just with our firm or one advocate or one client, that it’s going on across the country.

Robert: And I have to say that this presumption of regularity that we talked about earlier, this rule of law, if you will, presumes the VA is doing its job properly. And in this particular area right now, I don’t think they’re accomplishing that. In fact, I don’t think the presumption of regularity should apply until they have a system in place that the GAO certifies is working and can be verified. And unfortunately, veterans are going to have to pay the price as these cases get litigated through the agency.

Jonathan: And what’s interesting in my experience in dealing with this over the past few years is the people, the folks in the Office of Business Process Integration, they’re usually very cooperative. They recognize this as a problem. They’re willing to work with us to the extent that they can. But nobody’s saying this isn’t what’s going on. There’s not like an across-the-board denial that these decisions aren’t going out. So we will continue to notify them, hopefully continue to get some cooperation from them.

Robert: We have a question, what if I change my address with the VA but they send my decision to the old address? Is there anything I can do? Yes, you would have to inform the VA again of your updated address. But if- under the law they’re required to mail the documents to your last-known address and if you have updated VA systems and the VA has that information, or you can prove that the letter was received by VA and you’re out of time, you can make an argument that you notified them of your new address and we have won cases on appeal like that where there was a change of address issue by the VA because sometimes it takes the VA a while to update the address. So the last question is, can we take – can we take the VA to court over this issue? And since we’re claims advocates and attorneys, the short answer is yes under the right circumstances.

Jonathan: The answer is always yes.

Robert: So, we will eventually probably file some appeals in court with individual cases. We also know that the Court of Appeals for Veterans Claims now has the ability to hear aggregate actions, or what we call class actions. This might be one of those situations where we want to file a class action down the line. It really depends on how VA adjudicates these and decides whether these appeals are timely.

Jonathan: Yeah. It’s definitely a resource that we would want to use because like we said it’s been going on for years. It does seem to be affecting a lot of people and doing something like a class action noting that we’ve exhausted all of our available resources and filing a petition for writ of mandamus is another option and – because otherwise we’re going to be in this situation where, as Robert demonstrated before, going through the claims process and appealing the timeliness before we’re even able to get to the merits. Meanwhile, the client is waiting longer than they’ve already been waiting, which is usually a period of years.

Robert: And Katie, you’ve interacted with some of our clients that are in this situation. I imagine their level of frustration is high when they learn this.

Katie: It is. It’s really hard. I mean it’s not really asking for a whole lot. The amount of time that it takes to both argue that it was timely and then argue for the merits of the case adds years that they don’t have and have already been waiting.

Robert: Yeah, it’s not fair and we’re going to do everything we can to keep pushing the VA with our communications. And is there anything else, either one of you would like to share before we wrap up today?

Jonathan: I think it’s really important for folks to stress that both advocates and claimants themselves should really be notifying people about this ongoing problem. So advocates like to contact their state congressman and senators. And I think that advocates should be continuing to hit central office just to notify them that, “Hey, here’s another one, here’s another one,” because until this – the extent of this problem is recognized, I think we’re going to continue to see it. And as we said earlier, we just don’t have the resources to just be constantly poking around in VBMS to find these decisions. And so, we – it might just be the tip of the iceberg that we know about at this time, which is really frightening.

Robert: Anything else you’d like to share, Katie?

Katie: I would just say for veterans who do have some sort of representation, when they get a decision, let – be in communication with them because a lot of times we will hear from clients that, “Oh, I received a decision.” And if we don’t get it within like a week, we might go to VBMS and pull it. But we may not otherwise know. So it’s just important to be in communication when they do receive decisions.

Robert: We sort of entitled this topic VA Mail Fail. No one wants the VA to fail. We want to help the VA get this right, and that’s why we’re talking about it here today. So if you have any stories, problems, reach out to us on Facebook, please. And before we sign off, I want to share with you that we’ll give you an update on our next Facebook Live, which is Wednesday at 3 o’clock. And we’re going to be talking – I’ll give you an update on RAMP. I’ll try and get some updated statistics about how that is going. And I want to let you know that we’re going to be talking about Blue Water Navy veterans. There’s been some fascinating developments for the Blue Water Navy veterans both in Congress and a case is winding its way through the Federal Circuit right now. And I was able to sit in live and listen to that oral argument. And we’ll be sharing our thoughts about both the Congressional action and that court case. So, thank you for joining us this afternoon. This is Chisholm Chisholm & Kilpatrick, and we’re signing off.

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