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BY JERRY KLEIN, CHAIR
Once again, veterans have an opportunity to observe the inner
workings of the Department of Veterans Affairs first hand.
The results of the review of the policy decision detailed
in this article can lead to only one conclusion. The Department
presents a public relations pitch that it is concerned
with the welfare of its stakeholders, but takes actions
that contradict the stated position.
This is a case example
of the system at work. The Veterans Claims Assistance Act
of 2000 was passed by Congress and signed by the President
for the expressed purpose of helping veterans better understand
how to negotiate the VA’s
Veterans Benefits Administration. Since then, Court of Appeals
for Veterans Claims decisions have refined VCAA to enhance
that initial process, making it easier for veterans to understand
the requirements necessary to prove a benefit case.
Unfortunately,
the behind-the-scenes staff at the Veterans Benefits Administration,
legal staff, and the Compensation & Service
have established policies that have placed roadblocks that
prevent a clear understanding of the benefits process that
the average veteran can grasp. So much for a non-adversarial
relationship with the Department of Veterans Affairs. This
latest move by the VA is the last straw for me.
The passage
of the VCAA has had a significant impact on the way the VA
provides pre-adjudicatory notice. A series of court cases
has resulted in the VA continually modifying its duty to
help with notification letters, and court reinterpretations
of VCAA have resulted in long, confusing letters. The VA
could create language to fix the problem, but instead fights
at every turn to make the process more difficult to understand.
A
recent holding in Vasquez v. Peake mandated the VA to provide
additional notification requirements—namely to provide
notice of any specific test or measurement required to evaluate
a disability for the diagnostic code under which a veteran
was rated. That seems like a very reasonable request. This
rule would clarify the type of ratable evidence needed to
prove a claim.
What steps did the VA take in response to the
court decision? The Department filed a motion for reconsideration
on the Vasquez v. Peake decision. This is unacceptable behavior
and harmful to veterans.
On February 20 the VA Secretary filed
a motion for a panel reconsideration, or in the alternative,
en banc review of the court’s opinion in Vazquez-Flores
v. Peake, 22 Vet. App.37 (2008). The Secretary contends that
reconsideration is warranted because (1) the notice requirements
set forth for increased compensation claims in the opinion
would require the Secretary to provide specialized, individualized
notice not contemplated by the statute or case law, and (2)
the opinion incorrectly held that the notice error found
in this case was prejudicial.
Once again, the VA shows its true colors
by undertaking a true adversarial posture rather than finding
a way to help the very people it is sworn to serve. Maybe
we need to find a way to send these bureaucrats a clear message
that we disapprove of their actions. Let’s name names.
Maybe they would then have a change of heart when creating
rules and regulations that affect the very process used to
determine benefit eligibility. Realistically, they should
be fired and have their government pensions withheld or cancelled.
It is time to name names.
Decades of hiding behind the scenes in the bowels of the
Central Office of the VA will no longer be a safe haven.
The American public needs to know what instructions our elected
officials are providing to the agency heads and their subordinates
when carrying out public policy.
Who are
the responsible parties who implement public policy? Certainly
Secretary James Peake is one. The Director of the VA Compensation
and Pension Service, Brad Mayes, is involved in creating
the documents to support the policy. The Office of General
Counsel, which prepares legal briefs and motions to the court,
is certainly involved.
Veterans should ask the
Secretary of Veterans Affairs how the motion to the court
to prevent the application of Vasquez v. Peake is not harmful
to veterans. I, for one, would be interested in the explanation.
The slogan “Support
the Troops” is not an explanation when policy decisions
harm the troops.
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2008, Vietnam Veterans of America. All Rights Reserved. 8605 Cameron
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