My Christmas Pen Pal
They say idle hands lead to evil thoughts, or at least that’s what I was told. Living in the south my whole life, we have another phrase for it, “the devil is busy.” I try to keep the VA busy, I would hate to see what they could do with idle hands. This month, though, it seems like I have a new pen pal. I always keep a Freedom of Information Act request in the fire, and the VA responded to one of mine, just in time for Christmas! Talk about a Christmas miracle.
A Trap for the Unwary
Needless to say, the VA system often forgets that Congress intended for it to be non-adversarial, Veteran friendly. In fact, the “VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a [V]eteran who has a valid claim, but who may be unaware of the various forms of compensation available to him.” See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). Huh? You wouldn’t know that is still controlling law from the way the VA operates.
Here is a good story for you about just how friendly the VA is to Veterans. We all know how much the VA loves a form. They love checkboxes. I mean they love them.
If something has been denied by the VA before, they want it on VA Form 20-0995. If it is a brand new claim, they want it on VA Form 21-526EZ. What if you got a rating from the VA 4 months ago, but it was bogus, and you want to dispute that rating? You aren’t filing a claim for increase—because you aren’t saying you got worse, you are saying “hey VA, you got this wrong all along.” So, the 21-526EZ isn’t the right form. No sense in giving up $50,000 worth of backpay over the VA lowballing your PTSD rating. So, you send in a supplemental claim form. You provide VA with some statements from you and the wife, maybe some therapy records showing how—well, you know what you are. All good, right? Well, the second the VA gets ahold of that, they promptly send out a “wrong form, dummy” letter. You should have used VA Form 21-526EZ. So, your claim is closed, VA says he we need this form, not that form. What do you do? Well, you send them in what they are asking for, unknowingly making hopes of that backpay infinitely more difficult. Talk about a trap.
Now, it wouldn’t be the VA if they didn’t send you a second letter, asking for yet another particular form. No, I am not making this up, and many of you reading this likely know what I am talking about. What have I been doing? Well, when the VA sends me these pen pal letters, I have been filing a BVA appeal of those “wrong form” letters. The Board absolutely hates that. They write me back a letter saying “look guy, you should know better, the VA hasn’t issued a decision on x, y, or z. You were simply told use the right form. No way in Hogan's Goat can we accept this appeal”.
If you know me, you know for sure that isn’t the end of it. I have appealed several of these decisions form the Board to the Veteran’s Court and have won every single one so far.
During all this, I did a FOIA to the Board, asking just how many appeals they “turn down” and say “yeah we don’t think we have to decide that. Go away.” But, according to the Board, they just don’t track that sort of information. Yeah right, I didn’t fall off the turnip wagon yesterday. I wasn’t aware the Board had the ability to just say “we don’t accept your appeal.”
You may wonder why am I doing this? Filing all these appeals. Is it just to mess with the VA? Well, partly, sure. I do love messin’ with the VA. But the big reason I am fighting this issue is because the VA is confusing enough for Veterans. You should be able to fill out whatever form you want and the VA should take that and decide your claim. Under no circumstances should this form over that form make it difficult for you to get the backpay you are owed—but that is what is happening, the VA is making itself “a trap for the unwary,” and that hurts Veterans. Until someone calls their bluff, they will promptly continue.
What even is “seriously ill?”
I have written before about the Board’s war on our most disabled Veterans—refusing to expedite (advance) cases, even when a doctor says that this Veteran is “seriously ill",” the term Congress used to qualify for having your case advanced (expedited) by the Board. This year, I even had the Board deny advancement of a Veteran with not one, but two 100% ratings, plus many others. That’s right, you could have taken away one of her 100% ratings, and she still would have qualified for SMC (s). Phew. Poor soul. But, according to the Board, she is as healthy as a horse. So, one of my buddies did his own FOIA, asking the Board “what exact criteria do you guys use to determine when someone is or is not “seriously ill.”
Wouldn’t you know it, the Board doesn’t have any sort of guidance or definition of its own. In other words, they use a we’ll know it when we see it, but that is up to us, not you. The problem with that? How can you ever offer evidence to the Board to show you meet the criteria, if they refuse to disclose what the criteria for “seriously ill” means?
Our Forms are Good
To top off all this letter writing this Christmas season, the VA published a notice in the Federal Register, requesting comments concerning VA Form 21-2680. According to the VA, no changes are needed. The problem? You can tell whoever reviews these forms has never used them a day in their life. Here is an easy one for you. VA Form 21-2680 is filled out by a medical professional. A doctor, NP, PA, etc. In other words, its a medical document. So, why in the world would VA add a spot for Johnny Veteran to sign, certifying its accuracy. Surely it isn’t so VA can later say “VA received completed form 21-2680 which was signed by the Veteran. However, the Veteran is not a medical professional and lacks training to certify its medical determinations.” Surly it isn’t a trap.
So, my friend Alex Graham and I sent in a few suggestions. Take a gander and see what you think.
Copy of Federal Register comments.
Although, I still haven’t gotten my Christmas card from Secretary Collins. I guess the mail is running slow.
Godspeed.
