T ransgender A merican
V eterans A ssociation

VA Rewrites Rulebook
Regional NY Times  - Tuesday, August 10, 2004
By Cory Reiss
Washington Bureau

WASHINGTON -- Bill Kline fought a battle 35 years after his service in Vietnam when the Department of Veterans Affairs gave him a 40-percent disability rating for colon cancer that the agency links to Agent Orange exposure.

On July 27, about two years after the Sarasota, Fla., veteran submitted his claim, he won an administrative review that yielded a 100-percent disability rating, Kline said.  That means more compensation and better access to medical care.  But to Kline, who has another case pending, the cause of the mistake by a low-level claims processor was obvious.

"They simply didn't know their own rules," he said.

The number of vets like Kline who argue with the outcome of their claims, mostly for disability benefits, is surging -- from less than 44,000 in fiscal 2001 to more than 114,000 in fiscal 2003, according to government data.  The trend is jeopardizing the department's effort to reduce backlogs.

Congress and the VA have changed several rules that may give vets more reason to protest claims decisions, but many people agree that a factor is that vets and regional VA employees just don't understand what a court described in 1991 as the "confusing tapestry" of regulations.  It's an old story -- the little guy versus the vast government bureaucracy.

The VA, however, has given it a new twist.

In a move that appears unparalleled for a federal agency, the VA is rewriting huge chunks of its regulations, a jumble of legalese and cross-references amassed over more than 70 years.  The VA says disputes and appeals will drop if its rules are made comprehensible to the agency's front-line employees and the average vet.

An expert on regulations for the libertarian Cato Institute said he knows of no similar effort to rewrite rules in plainer language at another federal agency.

The effect could be far reaching.  More than 735,000 veterans submitted benefits claims last year, about 20 percent of them new claims with the rest applications to increase previously established disability ratings.

At least one major veterans group is refusing to cooperate with the VA out of concern that the agency may be stripping vets of their legal rights.  "The stated intent is laudable, which is to translate bureaucratese into English," said Rick Weidman, director of government affairs for Vietnam Veterans of America.  "The way they are doing that is insidious."

The VA is starting with rules governing disability compensation and pensions, which will emerge in about 20 packages through at least the end of this year.  The first proposed section was released Jan. 30 and a second was published last month.  Rules governing education and other benefits will get similar treatment.

The VA has asked veterans groups for advice, but Weidman said the piecemeal approach prevents vets from seeing how sections fit together.  They might miss changes the department later would argue the groups helped write, he said.

Joe Violante, head of legislative affairs for the Disabled American Veterans, said his group sees some problems.  For example, he said, one proposed rewrite appears to undercut a 2000 law that requires the department to help vets put together their claims rather than denying incomplete applications.

"The VA looks like they're trying to shift the burden back to veterans," he said.  VA officials say they are not trying to change the substance of rules unless they have become obsolete.

Agencies write rules to implement laws that Congress passes.  They are subject to court scrutiny and infused with precedent, in this case since 1988, when Congress established the U.S. Court of Appeals for Veterans Claims.

Barton Stichman, co-executive director of the National Veterans Legal Services Program, which provides representation before the court, said rewriting the rules could reopen questions the court has settled and create new ones in the short term.

"In the long term, it's certainly going to make things easier for courts and the agency adjudicators to know what things mean," he said.  "The most important effect should be, if it's successful, eliminating disputes."

A VA official said the department tried twice in the 1990s to accomplish this task but failed.  The regulations currently under revision cover about 210 pages of small print.  VA officials produced 2,000 pages of analysis before embarking on the rewrite, said retired Major General William Moorman, formerly the Judge Advocate General of the Air Force, who is in charge of the project.

"The net result of this is we are going to see a process that is more straightforward, results in fewer instances where seemingly similar claims are treated differently," said Moorman, who wants final rules on disability and pensions approved by fall 2005.  "There will probably be fewer disputes over their applications and thus fewer appeals."

The VA's project stemmed from a 2002 report on the causes and potential cures for a claims backlog that peaked at 432,000 with a processing time that averaged 200 days.  VA Secretary Anthony Principi set a goal to have no more than 250,000 pending claims with an average processing time of 100 days.  The department got close to the goal last year, but a court decision, an increase in claims from veterans of Iraq and Afghanistan, and possibly changes in the law and VA rules have shot the claims inventory to 324,000, the VA says.

Rules changes beginning in 2002 may have prompted some veterans to reopen their disability status, which many veterans try routinely as their condition worsens.  Changes that may prod vets to reopen cases, which is not considered an appeal until a vet disputes the decision, include the VA's exclusion of higher-income veterans without service-connected disabilities from VA health care, and a decision by Congress to allow retired vets who are 50-percent disabled to receive their pensions and disability pay the same time, known as concurrent receipt.

More veterans also are protesting VA decisions at the regional level and lodging appeals in Washington.  As a result the average time it takes to get a decision from the Board of Veterans Appeals beginning with an initial review at the regional level has increased to just shy of three years.  An appeal to the Court of Appeals for Veterans Claims takes another year.

The board expects to add 10,000 to 12,000 appeals to its backlog each year, a 67 percent increase over a projection a year ago.  Of the 114,000 initial disputes that went before regional case officers last year, nearly 42,000 went on to the appeal level at the Board of Veterans Appeals, and about 2,500 went to the Court of Appeals for Veterans Claims, all substantial increases from 2002.

Robert Angeli, a state veterans' service officer for the southeastern corner of North Carolina, said it's time for clarity in the VA's rule book.  Plenty of baffled vets seek help from him and veterans groups, and misunderstandings are common on both sides.  "That would help a lot of veterans," he said of the rewrite.  "It is a cumbersome process."

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