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The Confederate Lawyer
February 10, 2009

Our Wounded Warriors Deserve Better
by Charles G. Mills

Our nation has always compensated its war veterans for any permanent harm they suffered in war. This was a major concern of Congress early in the first administration of George Washington. By 1893, this compensation was more than one-fourth of the federal budget. Today, it is the responsibility of the huge U. S. Department of Veterans’ Affairs (VA).

Recently, the head of the VA’s New York Regional Office and his four chief deputies were relieved of duty. The employees had been shredding veterans’ claims to reduce the workload. They also had been date-stamping other claims long after they were received to create an impression that they were handling them faster than they actually were. While the conduct in other regional offices is probably not so egregious, the culture of delay is department-wide.

Veterans seeking compensation for war injuries first must file an absurdly long form in the regional office. Current law makes it difficult to get the assistance of a lawyer, but veterans are encouraged to get help from a city or county veterans’ service agency or a volunteer organization like the American Legion, the Red Cross, or the Disabled American Veterans. The VA accredits many such agencies and organizations, and the quality of their work varies from excellent to not-so-good. They all, however, follow the VA’s rules and policies, without questioning whether these are in conflict with the laws Congress has passed.

If applications do not have all of the evidence needed by the claims examiner at the regional office, a letter is sent to veterans and their representatives, if any, specifying what additional evidence is needed, which the department will obtain, and which the veterans must provide. The first several pages of the letter are probably incomprehensible to average veterans, and the meat of the letter is at the end.

Eventually, in three months if veterans are lucky and in five or ten years if not, the claims are awarded or denied. There is currently a backlog of approximately one million claims. A few years ago when the backlog was about 600,000, a major effort was made to reduce it. There have been eight department secretaries, and most have been committed to but not successful at cutting the backlog.

Veterans who receive denials may appeal to the Board of Veterans’ Appeals. According to the VA’s own numbers in 2004, this process takes 1,041 days. Of this time, 767 days elapse after veterans have completed all paperwork, and 502 days pass while the regional office puts all the papers together, certifies them, and sends them to the board. Veterans may be represented at the board by a lawyer or by a veterans’ service agency or organization. The board corrects mistakes such as misreading of the law or regulations by examiners at the regional office and is very friendly to veterans.

If veterans are not satisfied with the results of the appeal, they may appeal to the Court of Appeals for Veterans’ Claims. Veterans are frequently represented by quite competent attorneys at this point. In a significant number of cases, veterans win; the board then sends the cases back to the regional office to carry out the court ruling; and the regional office sits on the cases for months or years or does not follow the board’s instructions.

Most of the delay and error occurs at the regional offices. Through the writ of mandamus process, the court can direct the VA Secretary to perform the duties of the office. Usually when a writ is requested, the VA’s general counsel promises to do it right away and this satisfies the court. At this point the Washington employees of the department and the board do their duty promptly. If, however, anything remains to be done at the regional office, the employees at that level do not seem to understand the seriousness of the matter and can cause further delays of several years.

There are two more layers of appeal: the Court of Appeals for the Federal Circuit, which corrects misinterpretations of the law by the VA, and the Supreme Court.

Professor James O’Reilly of the University of Cincinnati believes that the whole system is beyond repair and we should start over. I do not agree. What we need are a few changes in the law:

1. We should provide interim compensation to veterans during delays, at any stage, beyond three months. I am confident the VA’s employees can do their jobs on time, if their delays will put the department over budget.

2. We should codify the writ of mandamus procedure so that the court would no longer have uncontrolled discretion to accept at face value the VA's assurances that things will be done quickly.
 
3. We should create a procedure by which the court could require periodic reports in cases in which inordinate delays have been brought to its attention.

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The Confederate Lawyer column is copyright © 2009 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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