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

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Robert Chisholm: Hi. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. Welcome to our Facebook Live. We’re gonna be talking about what happens to VA claims during the COVID-19 crisis and we have a distinguished panel with us today from law firm. First up is Zachary Stolz. Zach, want to say hi?

Zachary Stolz: Hi. I’m Zach Stolz.

Robert: Okay. Also, with us is Christine Clemens. Want to say hi, Christine?

Christine Clemens: Hello.

Robert: And finally, Brad Hennings.

Brad Hennings: Hello World.

Robert: So, I thought it would be good to first say what we’re doing as a firm. Chisholm Chisholm & Kilpatrick, we’re a firm based in Providence, Rhode Island. And as of a week ago on Monday, around the end of the day, we have been working remotely. So everyone is working remotely. We are handling claims both at the agency level at the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims, and VA is working. We’re going to go all this in a little bit more detail. That’s really the purpose of this Facebook Live to talk to you about what we’re doing and what VA is doing. We asked for questions in advance and the reason we did that was because we weren’t sure we were going to broadcast this live. This is being recorded on Thursday, March 26, and will be broadcast on Friday, March 27. So without further ado, we’re going to jump right into what’s happening at the regional offices and I’m gonna hand it over to Christine to talk a little bit about what we’ve learned and what the VA is doing at the regional offices.

Christine: Great. Thanks, Robert. So first, we wanted to talk a little bit about what VA is saying. VA has posted on their website. A lot of people have questions so there’s a Frequently Asked Questions section on their website. It primarily addresses what is happening at the medical centers, some questions related to coronavirus and what if someone is experiencing symptoms, what about C&P exams which we’ll talk about in a minute. The regional offices are all handling being a little bit differently but for the most part, the workers are the people who are working in the regional offices are working remotely. VA is perhaps one of the better agencies equipped to deal with the crisis like this. And that they already had a number of people who were staffed for telework or working from home. And so they have worked to get equipment to people who didn’t have equipment so that they could continue working on your claims and appeals and to try to keep the workflow up as they have been. Prior to this, VA was really working at…their focus was working on the legacy appeal backlog in working through any backlog that they still had. They have targets in place to do that. They’re still trying to meet their targets. So what they’re saying is they’re trying to ensure that the services are still going to be provided to veterans and their family members that they have been provided. In terms of what we’re seeing, you know we have seen that the VA is still continuing to issue decisions — we can see through our ability to access our client’s files electronically in VA system, we’ve been able to see that people are working in real time you know our clients have received phone calls from VA so everything is still working along. If somebody has evidence — some of the concerns that people have asked us about is if they have evidence that they need to submit to VA or if they have appeals that they want to file or claims they want to file, how do they get that to VA? One of the easiest ways to do that is to fax it to the Evidence Intake Center, to fax it directly to the board, to send it by regular mail, or to upload it electronically into VA’s eBenefits system. But if someone is wondering if they can bring it into the regional office, it is not advisable to do that because the regional offices are all kind of running a little bit differently in terms of who they have in their client contact departments whether they are still up and running or running in a limited capacity. If somebody…if that’s the only way that they have to get information to VA then they want to call first. It’s really not recommended that people try to go into VA.

Robert: Yeah. I know in Providence they’re not accepting any walk-ins at this point. That’s what we were told.

Christine: But that is a regional thing too, where all of the regional offices are handling it differently. So again, if you have other questions you can certainly try by calling the regional office but we’d certainly not recommend you just go into the regional office. So other questions that we have received are what the representative or VSO are located at the regional office? Again, those are it’s going to be dependent on the regional office and the representative—what we’d recommend doing is call first. But in terms of whether they can still file claims, you absolutely can. You can absolutely file appeals. It will be received. The VA will also continue to pay monthly benefits. They have spoken to this point publicly that they are going to continue paying benefits. They don’t anticipate that there will be many issues with benefits being stopped. You should continue to receive those. And then in terms…

Robert: If I could interrupt you for one sec, I just wanted…not only are they going to continue to pay benefits but they’re making awards presently that will pay people retroactive benefits. We’ve seen that since this has begun, correct?

Christine: Correct. So people are…and not only are they being paid their monthly benefits but they are being awarded new benefits.

Robert: Right.

Christine: In terms of C&P exams — Compensation & Pension examinations which are often scheduled by VA to assist in claim development and medical development — the VA…again this is happening differently in every place. But as far as we know C&P exams are some of them are still occurring but VA has begun to contact people and cancel them, and to postpone them. So if you’re not sure if your exam is still going forward, there is a number on the form or on the letter that you would have received scheduling the exam, or someone calls you. You can certainly call them back to reschedule. If you have not heard that your exam has been canceled and you’re worried about going to VA, you can also certainly request to postpone it. And VA has been very accommodating with this. If the VA has said that they need to have an exam…sometimes people wonder, “Well, are they going to just make a decision without going forward with the exam?” The answer is they should not. They really should be waiting for the exam but if you’re able to get evidence or medical evidence in place of that exam, you can certainly try to submit that depending on where you are in your appeal and what lane you may be in. And the VA has you know some people have asked if Telehealth exam is an option. Right now, as far as we know, it is not. That is something that VA is looking into. They are certainly exploring that in the future.

Robert: If people have medical exams scheduled, bottom line is they should confirm that they’re going to go forward. If people are concerned with going to VA Medical Center they can certainly cancel but they should notify the VA that they’re canceling. Does that make sense?

Christine: Absolutely. And they shouldn’t be penalized. You will not be penalized. VA has said that they will not be penalizing people for not attending exams during this time.

Robert: Okay.

Christine: But, it’s always a good idea if you’re not going to attend to call and notify, to communicate with them, and not simply just not show up.

Robert: And as far as we know and as far as everything we’ve learned from speaking to our contacts at the different regional offices, they are equipped to operate remotely. And they’re still handling claims just as much as they would be before this hit, correct? As far as we know…

Christine: Yeah. That’s what they’ve been saying and from what we’ve been seeing is it appears that they are.

Robert: Okay. You talked a little bit about electronic access. Just talk a little bit about what that allows us to do as a firm to see what’s happening on the files if you wouldn’t mind.

Christine: Sure. So when we say electronic access we have access to a number of VA’s systems for our clients only. What that allows us to do is that it allows us to see when we have submitted when we file a claim, when we have filed an appeal, or when we filed evidence that VA has received it, that they’ve uploaded it into their system. That they have properly categorized it and are moving forward on it. It also allows us to track the development that they’re doing on those appeals. So if they have requested records from another agency or from a former employer, we’re able to see what those requests are. We’re able to see in real-time when VA is working on the case and what they are doing. It also helps us to see what is still outstanding so we can work with our clients to obtain anything that we think we can get and to support their claim or their appeal. That’s one of the things that we use it for on a regular basis. We are also able to view if there are C&P exams, we’re able to view those exams. Any medical records that are uploaded to the file that VA is looking at in making their determination, we’re able to see those as well. So it helps us keep a close eye on what’s happening on a regular basis within our clients’ files. The other thing that happens sometimes is if our client receives a phone call from someone at VA — It just happened today — where someone receives a phone call. They weren’t sure what it was about. We were able to look into the file and see who it was and what the question was that they had. We can also reach out on behalf of our clients to resolve any issues or any questions that VA may have on their cases.

Robert: So I think it’s also important to point out that we are still receiving mail every day from the VA — lots of mail. We know they’re making decisions based upon two things — our ability to look inside the electronic system in addition to the snail mail as we call it now that we receive…

Christine: Absolutely.

Robert: …regular mail. Brad, do you have any other thoughts that you would like to share about what’s going on at PRO?

Brad: No I think that pretty much covers how they’re handling things. The one thing I will add is they’re doing some hearings at the regional offices. The informal hearings under The New Appeals Modernization Act. Those are very dependent on the higher-level reviewer and how that office is operating.

Robert: Okay. So any final thoughts Christine? What’s going on at the regional offices?

Christine: What’s going on at the regional office is…I don’t want to say business as usual…but they are really working hard to ensure that during the time that veterans are not being adversely affected for things that are beyond their control, they are working the cases. They’re working claims now. I can’t speak as to whether they’re doing it just as fast or if there’s going to be a delay. Certainly, people who work within regional offices are people who are dealing with the same kind of home situations that everyone across the nation is. But in terms of productivity, we are seeing that they are working. And I think in maybe a couple of weeks’ time we’ll have a better sense of whether there’s any impacts in speed. But certainly in those critical services in terms of getting benefits and benefits’ delivery. All of those systems are running as smoothly as they possibly could during something as unusual as what we are experiencing right now.

Robert: Okay. Thank you. Brad, I’d like to now…turn to what’s going on at the Board of Veterans’ Appeals…you may want to share with our audience your former employment with the Board. So I think that would be helpful as well. Take it away.

Brad: My name is Brad Hennings. I’m a former Veterans Law Judge at the Board of Veterans’ Appeals. And I also worked there as staff attorney for a number of years. So I’ve been keeping abreast of what’s going on with the Board of Veterans’ Appeals during this time period. What the Board does is it does two main things and one ancillary. It conducts hearings and cases that are on appeal. It issues decisions in those cases that are on appeal and then it deals with other matters. Various forms that are filed. Various motions that go along. What they’re doing is…it really is business as usual for the Board of Veterans’ Appeals. In the sense that they’ve always had a very robust telework policy certainly for a number of years. The staff attorneys who draft the decisions for the veterans’ law judges, about half of them were already full-time remote. Probably, eighty percent of them have the ability to telework at least on an ad-hoc basis. It’s my understanding that converted all those folks, sent them home, and anyone who was not telework-ready they made telework-ready. And so both the judges and staff attorneys, there’s also a number of the administrative staff, are all working remotely. They have a small team as I understand it working to actually dispatch a physical decision, mail them out to veterans that are waiting. From the Board of Veterans’ Appeals‘ perspective, they’re saying it’s business as usual as it relates to their decision making. We expect that the Board…and we’ve seen the Board continue to make lots of decisions and issue decisions on appeals. The big difference for the Board of Veterans’ Appeals is how they’re dealing with hearings. What they’ve done is they have suspended all of the travel board hearings where veterans law judge goes out to the regional office conducts in-person hearings — suspended those video hearings and in-person hearings at the Board in Washington, D.C through at least May 1, 2020. Now, the good news is that they are offering what they call “virtual hearings” which are fully remote where the veterans law judge is on the computer and the veteran’s on his or her own computer. That is being offered in the meantime but the traditional hearings that the Board offers are stopped until May 1, 2020. The Board has indicated they’re going to work with veterans, VSOs, with accredited representatives to provide the essential hearings. They are frankly a little more challenging. There’s tech challenges that we’re all dealing with in this remote environment. That is a program that would still be rolled out. It’s really not fully ready to handle thousands of hearings that the Board is dealing on a monthly basis. In addition, that’s talking a little bit about hearings and decisions which are one of the main things the Board of Veterans’ Appeals does. They also will advance cases or advance appeals on their docket meaning that you’ll get a quicker decision because typically it’s first in, first out. But sometimes, you can skip the line if you’re an older veteran, if you get real financial hardship, if you’re terminal, those kinds of things you’ll go in front of the line. The Board of Veterans’ Appeals has announced that the Board will accept an advance on the docket motion for veterans who’ve been diagnosed with COVID-19. They’ve put it on their website about that. They’ve also put some information about how you can put together one of those motions. I believe that we’re going to make available some sample language for a motion to advance your case on the docket if you are indeed diagnosed with this. That’s good. In addition, they’ve indicated that VA’s current regulations provide plausibility to timelines because there’s various filing deadlines. If you can show good cause you can explain why you are perhaps submitting a late notice of disagreement or a late VA form 9 of substantive appeal. You’re going to need to write to the Board, write to VA, and tell them exactly what’s going on. Tell them why and show them why they should what they so-called toll or basically waive the timing requirements. Overall, based on what we’ve seen initially, we’ve seen like things are going pretty swimmingly at the Board with the exception of hearings. It’s been a really tough time for getting those hearings on at least until May 1st.

Robert: The Board was sort of particularly equipped to work remotely. They have the infrastructure in place for many of their employees already. It was just a matter of the remainder, people that were still going to the office to work remotely.

Brad: Again, the good news is that they had been piloting and working on remote access for many of their employees for the last fifteen years. It really matured I’d say in the last five. They were uniquely equipped to handle this situation.

Robert: For the last few years, the Board has been meeting its quota in terms of the number of decisions it makes annually. As far as what we’ve seen so far, my understanding is they’re on target this year as well.

Brad: My expectation is that they will meet or more likely exceed the goals they set for themselves for this fiscal year which is great news. The bad news is that they have a significant hearing backlog.

Robert: Right.

Brad: I think this is really going to set them back.

Robert: In terms of the hearings, right. Okay. Can we peek in on what’s happening at the Board with electronic access that Christine was talking about? If the answer is YES can you talk a little bit about that?

Brad: Sure. The answer is YES. We have access to a number of different tools that help us see those cases. One is the Veterans Benefits Management System. You can tell what’s going on in a particular case because that’s the veteran’s claims file. In addition, we have access to their Case Flow 2 Tool. Case Flow is a system that they use to help manage their appeals in the Appeals Modernization Act. In addition, we have the ability to get a download of the veteran’s claim file to Case Flow e-folder express. They have a number of different tools that we have access to help us better prepare the appeals, find out statuses, and figure out what’s going on with an individual appeal.

Robert: Okay. Like we’re talking with Christine, we’re actually receiving Board decisions on a regular basis a few times a week.

Brad: Yes. We’re still receiving Board decisions. It’s my understanding that they have contractors who are mailing out these decisions. They’re continuing to work to the process.

Robert: All right. I guess that brings us over to Zach. Zach, if a veteran loses his case at the Board of Veterans’ Appeals, the next stop, if they want to appeal it would be Court of Appeals for Veterans Claims. Can you tell us what’s happening at The Court?

Zach: Yes. The Court has been a leader among courts in piloting work-from-home programs for years now. Every judge there — there are now seven full-time active judges and a number of retired judges that can be called into service — all of them are equipped to work from home. There has been — I am very happy to say — absolutely no slow down from the Court of Appeals for Veterans Claims because they were so ready for a challenge like this. In fact just today, Chisholm Chisholm & Kilpatrick received a precedent decision which is a decision that comes from a panel of three judges. The oral argument had been held several months ago but the decision came out today. Looks like all their other precedential decisions this one happened to be favorable to the veteran. We’re very happy to report that. We’re very happy with the results for that. The work continues. All of our attorneys at Chisholm Chisholm & Kilpatrick are equipped to work from home and have been doing so. We were one of the first groups from the law firm to go out and start working from home — have been doing so for two weeks as of tomorrow. We are very ready to go and our work has been uninterrupted. We expect no slow-downs from the court. In fact, just this week they’ve started scheduling their arguments. They will not be held in-person anymore for the foreseeable future they will be held by teleconference using some sort of software that I don’t know yet but they are getting that together. Even the arguments for precedential decisions are going to go full steam ahead. The Court tends to not make a lot of precedential decisions. About one percent of their cases or so each year are precedent. Most cases are decided by a single judge and those happen pretty quickly and have continued to happen quite quickly. All the judges that I know of on The Court, I’ve seen decisions from their chambers. It is full steam ahead at The Court of Appeals for Veterans Claims. It is a much smaller operation frankly than The Department of Veterans Affairs and even the Board of Veterans’ Appeals. It’s a little bit easier for them to stay on task but they do have a very challenging caseload. So far, I’m very happy and proud of them [chuckles] to say that they’ve been really serving our veterans. Hopefully, they will continue to do that.

Robert: Can I just ask, not every case goes to a decision. Some cases are resolved after what we call a pre-briefing conference. Are those conferences still happening? Are we still resolving cases at that stage?

Zach: Yes. I have more compliments for [chuckles] The Department of Veterans Affairs which can be odd sometimes when you’re in the business of sometimes being adversarial with The Department of Veterans Affairs at a court level because we are adversarial. But the litigation group at The Department of Veterans Affairs also has had a robust work-from-home policy for a very long time. They were very ready for this challenge, thankfully. We have been having pre-briefing conferences. We’ve been exchanging emails with our colleagues at The Department of Veterans Affairs. They’ve been working almost business as usual and have been very accomodating of helping us and helping veterans out. That has been going smoothly as well. The pre-briefing conferences have still been held by The Court staff with The Department of Veterans Affairs attorney. One of our attorneys is participating in each one of them. They continue to mostly resolve which is very good. The few that do not resolve do end up going to a decision from the judge and has been happening relatively quickly.

Robert: Great. Okay. We solicited some questions. I’d like to go through those questions now if we could. Just give me one second here. The first question I think I’ll toss over to you Christine. Is VA functioning? Is it working as if working on appeals? I think we’ve answered that question but why don’t you go ahead.

Christine: Yes. It so it seems.

Robert: Okay. Brad, this next question’s for you. Do you expect that there will be any significant change in the quantity or quality of VBA’s output as a result of the high percentage of employees working from home?

Brad: So that’s an excellent question. My sense is that I don’t think we’ll see a huge difference. Because a lot of the VBA employees — the raters, the ones making these decisions — were often already working from home some part of the week if not all the way through the week.  I think there may be some hiccups here and there in terms of getting out, let’s say the mail, as they continue to work through that process. In terms of the quality or quantity generally, I think it will be pretty consistent with what we’ve seen in the last few years.

Robert: Okay. All right, Christine, the next question is for you. Ultimately, will we have to wait longer for a claims appeals remands? Why don’t you talk a little bit about what remands mean in this context too?

Christine: Sure. The remands there are two types of remands. One is remand from The Court to The Board of Veterans’ Appeals and the other would be from The Board of Veterans’ Appeals back to the regional office. In terms of what’s happening at the regional offices really were looking at what comes down from The Board. And so if that is when The Board is looking at an appeal, if there are issues that The Board has identified where there was really development that needed to happen that didn’t happen, or an examination that took place didn’t really answer the question that it needed to answer, they will remand those issues. In other words, send them back to the regional office for the regional office to specifically do the tasks that The Board has identified weren’t really done the first time or weren’t done correctly. In terms of The Board remands to the regional office, you know we know that there are targets in place for the regional offices to be working on those. To be working on claims and appeals. In terms of timeframe, I think as Brad said…there might be some hiccups. But we wouldn’t anticipate but the output is going to be less. The one thing I would say is that when it comes to the development that needs to happen might take longer. For example, getting the C&P exams scheduled, being able to have those hearings at the Board, if someone’s case falls into one of those lanes or one of those situations where they are waiting on a C&P exam or they are waiting for a hearing, those cases might be delayed. For the most part of people who are filing claims, if they’re filing claims with evidence that they have, that development to those decisions should be happening in a timely manner. Ultimately, it might be too early to tell what the timeframe is going to be or what the impacts might be. But I think a lot of them is going to depend on where someone is in the processes and what their case specifically needs.

Robert: Okay. Next question has to deal with Intent to File. We got a question about Washington, D.C. Congresswoman Norton sent a letter to VA Secretary Wilkie, requesting that VA indefinitely suspend all timely filing deadlines for veterans and surviving members with and Intent to File submission. What efforts if any are being undertaken to preserve appeal date. Zach, do you want to take a shot at this?

Zach: Yeah. The department, to my knowledge, is not formally tolling any deadlines. Which is to say that the Department of Veterans Affairs has not necessarily taken the advice from that member of Congress. But what we are looking to do if there is ever any problem because of this current crisis of getting something filed on time, there is a relief that you can seek at The Court of Appeals which is equitable tolling. Which is to say that you make the argument that veteran, or the survivor, or whomever could not get some paperwork filed on time and it was due to the extenuating circumstances that is this really unprecedented pandemic. It’s an argument we can make. Frankly, the best advice is no matter what, try to get everything that you can, and on time, and according to VA guidelines and VA requirements. Because there is nothing that says that it is told not yet. It’s something that could happen in the future but The Department of Veterans Affairs has not taken that step. CCK is going to be equipped to argue that that should happen but we could lose that argument. “I think it’s probably a pretty good one.” one would think but it would depend on the case. It would depend on what really the excuse is aside from the COVID-19 pandemic. So it’s nothing that I would bank on. I would still be really careful about filing everything that you possibly can on time.

Robert: The historical precedent for equitable tolling has been hurricanes historically. When a hurricane like Katrina, they tolled some things but people…you never know for sure what the VA is going to do with an individual claim. The best thing to do is to get your appeals in on time. If not, then you have to show what it was specifically that led to the inability to file within the time limit. All right. Next up, Brad, a veteran asked, “What if I get the virus? Will VA Medical Centers treat me?” So, “If I get the COVID-19…”

Brad: Yes. The sure the answer is Yes. I think it’s also important for veterans to know that VA Medical Centers will not necessarily be able to do the testing for the virus because that’s being coordinated differently in each of the States. But, of course, VA Medical Center will be able to treat you if you are symptomatic.

Robert: Okay. Next question to you Zach, “If I get the virus and survive, is it possible to get an increase in benefits per se a service-connected lung condition?”

Zach: Certainly going to be possible. I don’t know that it’s going to be a for sure but if an already…and we don’t know a lot about this virus and none of us are doctors on this. In the interest of full disclosure, no one talking to you right now is a doctor. We’re attorneys.

Robert: Right.

Zach: But for my labors understanding, this nasty thing wreaks havoc on the respiratory system and particularly the lungs. One would imagine that if a veteran has a service-connected lung condition — so the lung condition is already related back to his or her time in service — and this comes along and exacerbates that, it could be something that we would conceivable pursue. Both The Department of Veterans Affairs and at the Court levels. So the answer is a solid lawyerly maybe.

Robert: Okay.

Zach: It’s certainly something worth looking into if…I hope that this is not the case for very many people and I hope that we’ve flattened that curve. So that fewer people suffer from this horrible thing. If it is something that happens it would be something we would look into.

Robert: Christine, I’d like you to address the next question. If you’re service-connected for a respiratory problem and you pass away from Coronavirus, will your cause of death be from the virus alone or can your respiratory problem be a factor that led to death for your dependents?

Christine: I think that question is really about whether the death could be somehow related. Whether there are benefits that would be payable for the death. Ultimately if again none of us are doctors but if the virus is something that attacked the respiratory system the lungs are service-connected, the lung is a vital organ, that’s something where it…that is a factor. If it’s the veteran’s death, then that is something could be service-connected because of that underlying condition.

Robert: The last question we have is, “How long can I expect all these to last?” Everyone can take their shot at it. I’ll start by saying we have no idea.

Zach: I will say also we have no idea. Hopefully, it’s done and responsibly in a safe way. In the meantime, while we’re getting through this situation CCK is going to be here working remotely and working as best as we can for our clients.

Robert: I’d like to summarize by saying thank you for coming today and watching this. As I’ve said at the beginning, we’re broadcasting…recording, I should say, this on March 26. This is the first time we’ve done one of these remotely. We’re all in four different locations. The firm is up and running remotely. VA is up and running remotely. Please feel free to reach out to us on Facebook, at our website cck-law.com. We are updating on a regular daily basis, information that we learn. We put it up on our website. As Brad noted, we’re going to have a sample advance on the docket motion up on the website by the time this is broadcast on March 27. If you have questions, ask them and we will respond. We’re going to continue to do more Facebook live so keep asking questions and we’ll do our best to answer them. Thank you all.