FW: Lawsuit Challenging Parts of the Final VA "Standard Claims and Appeals Form" Rules

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Date: Tue, 31 Mar 2015 19:22:03 +0000
To: rserge1@outlook.com
Subject: Fw: Re: Lawsuit Challenging Parts of the Final VA "Standard Claims and Appeals Form" Rules

All,

Hopefully this email will answer many of your questions and alleviate any concerns you may have regarding this lawsuit.

The law firm representing the legal action is Wilmer Cutler Pickering Hale and Dorr LLP ("WilmerHale") through its Washington, DC office. Parties to this legal action include the National Veterans Legal Services Program, The American Legion, AMVETS, The Military Order of the Purple Heart, and Vietnam Veterans of America. WilmerHale is representing this matter on a pro bono basis. 

The proposed challenge in the U.S. Court of Appeals for the Federal Circuit is to two aspects of the rules promulgated by the Office of Veterans Affairs ("VA") on September 24, 2014, which became effective on March 24, 2015: (a) the elimination of the VA's existing "informal claim" process; and (b) the elimination of the VA's duty to infer benefit claims for disabilities when entitlement to service connection for the disabilities is reasonably raised by the evidence of record even though these disabilities are not "related" to the expressly claimed disabilities.

WilmerHale's brief statement of the case is as follows:

               "Background:  On September 25, 2014, the VA published final rules that amend Parts 3, 19, and 20 of 38 C.F.R.  See 79 Fed. Reg. 57660-57698.  These final rules on what VA calls "Standard Claims and Appeals Forms" will become effective on March 24, 2015.   Congress has provided that a lawsuit challenging a VA rule may be filed directly in the U.S. Court of Appeals for the Federal Circuit.  NVLSP and several other veterans service organizations (VSOs) wish to challenge certain parts of these rules (hereinafter the "new rules").

               "Challenge #1:  For decades prior to these new rules, a veteran could begin a claim for benefits in one of two ways: by filing with the VA (a) a written document (like a letter sent by USPS) expressing an intent to file a claim for benefits (called an informal claim) or (b) the application form that VA has for the particular benefit sought (called a formal claim).  The VA would typically send a formal claim form to the veteran who filed an informal claim and give the veteran a year within which to file the formal claim form.  If the claim initially initiated by an informal claim was ultimately granted, the effective date for the award of benefits would usually be the date VA received the informal claim, not the later date of receipt of the formal claim form.

                The new rules eliminate the informal claim.  Under the new rules, an award of benefits can be no earlier than the date the VA receives (a) an electronically submitted formal claim form; (b) a paper formal claim form; (c) a new form called a form indicating an intent to file a claim for benefits; or (d) an oral statement of intent to file a claim, but only if (i) the oral communication is "directed to a VA employee designated to receive such a communication" and (ii) the VA employee documents the date the employee received the oral communication.  This means that if VA receives from a veteran a letter expressing a desire for a particular benefit, receipt of that letter can no longer serve to establish the earliest effective date if the VA ultimately awards the benefit.  The VA will send a formal claim form to a veteran who submits a letter requesting benefits, but the earliest possible effective date will be the date the formal claim form is received by VA.

                The new rules eliminating the informal claim harms low-income and disabled veterans who (a) do not have access to and know how to use a computer (b) are not located near a VA facility that has copies of VA claims forms, and (c) do not have access to a telephone.  For example, a homeless, impoverished, disabled veteran who lives in a rural area is at a significant disadvantage compared to those who can navigate the internet, own a telephone, or live near a VA facility that has VA claims forms.  If that vet sends the VA a letter asking for a particular type of benefit, VA receipt of that letter will have no impact on the effective date.  Even if the homeless vet provides an address of a friend to which the VA could send a claims form, it may take months for the VA to respond by sending a claims form and for the homeless vet to file the form that will serve to establish the earliest possible effective date.

     NVLSP and the other VSOs wish to challenge the elimination of an informal claim that serves to set the earliest effective date as inconsistent with VA's statutory authority and a violation of the Fifth Amendment's guarantee of equal protection.

      "Challenge #2: Congress, the courts, and the VA have all long agreed that the VA claims adjudication process is intended to be non-adversarial and pro-claimant and that the VA has a duty to assist a veteran-claimant obtain the evidence necessary to substantiate the claim.  The VA has long taken the position when it considers a veteran's claim for a particular service connected disability (disability X), and the record reveals that the veteran is entitled to service-connected disability benefits for a different disability (disability Y), the VA has a duty to adjudicate the veteran's entitlement to service connection for disability Y, even though the veteran never requested benefits for disability Y.  Thus, if a Vietnam veteran files a claim for service connection for PTSD and the record reveals that the veteran suffers from type 2 diabetes, the VA would have an obligation when adjudicating the PTSD claim to also adjudicate entitlement to service connection for type 2 diabetes since VA regulations provide that a Vietnam veterans who manifests type 2 diabetes is entitled to service connected disability benefits for type 2 diabetes.

     In VA's commentary to the final rules, VA stated regarding the scope of a claim filed pursuant to the new rules that VA will continue to "infer or identify and award certain benefits that a claimant has not expressly requested but that are related to a claimed condition and there is evidence of record indicating entitlement."  79 Fed. Reg. 57692.  However, VA stated that "entirely separate conditions never identified on a standard claim form generally will not be the subject of claims that are reasonable raised by the evidence of record."  Id.  Thus, VA in effect takes the position that in the above example, it is not obligated to adjudicate whether the veteran is entitled to service connected disability benefits for type 2 diabetes because the veteran never filed a claim for benefit for type 2 diabetes and type 2 diabetes is unrelated to PTSD.

     NVLSP and the other VSOs wish to challenge VA's elimination in the new rules of VA's duty to infer benefit claims for disabilities when entitlement to service connection for the disabilities is  reasonably raised by the evidence of record even though these disabilities are not "related" to the expressly claimed disabilities."

This action in no way affects the VA's Fully Developed Claim (FDC) process - "Quick Claim Procedure". The FDC is separate and distinct. MOPH is NOT advocating modification/elimination of the FDC process. MOPH is, in fact, a strong advocate of the FDC process.

If there are further questions/comments, please contact me.

Yours in Patriotism,

FRANK VAN HOY

National Service Director

Military Order of the Purple Heart

5413-B Backlick Road, Springfield, VA 22151

O: 703.642.5360

frankvanhoy@purpleheart.org

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