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Regulations Management

NPRM Comments

December 30, 2013

Page 2 of 4

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barrier to on-the-merits adjudication of a claim. Further, satisfaction

of this proposed administrativerequirement would also determine theeffective date of an award, thereby affecting a substantiveproperty

right.

As a general comment, we submit that such a fundamental change

to the heretofore veteran friendly and paternalistic VA adjudicatory

process exceeds the scope of a rulemaking proposing standard claims

and appeal forms. Contra5 U.S.C. 553(b)(3).

Further, while VJG supports updating and streamlining VAs

ossified administrative and adjudicatory processes, we believe existinglaws explicitly establish a non-adversarialinitial claim and initial

appellate process within the agency. We have found no authority for

VA to fundamentally alter this premise which has been repeatedly

cited by the United States Supreme Court as underpinning the basis of

its decisions in the veterans matters brought before it. Walters v. Natl

Assn of Radiation Survivors,473 U.S. 305, 309, 311 (1985); Henderson

v. Shinseki, 131 S.Ct. 1197, 1999 (2011); Sanders v. Shinseki, 129 S. Ct.

1696, 1707 (2009). To the extent that the proposed changes reduce the

agencys duty to assist or place additional duties on claimants for VA

benefits, the Secretary would exceed his authority by undermining the

controlling case law. Such change can only be accomplished through

Congressional action.

Next, as the VA claims process has been explicitly found subject to

constitutional due process, Cushman v. Shinseki, 576 F.3d 1290 (Fed.

Cir. 2009), we specifically challenge the Secretarys assertion that the

general authority in 38 U.S.C. section 501 is sufficient to implement

such changes. While we agree that the Secretary has clear authority

to prescribe the forms of application discussed in the NPRM, wesubmit that the proposed forms and the associated regulationsare not

consistent with the controlling law. Contra38 U.S.C. 501(a). Thus,

whatever the expected efficiency gains from the proposed rules,

Congressional not Secretarial action is required to create the sort of

adversarial process and technical pleading burdens proposed here.

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NPRM Comments

December 30, 2013

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Finally, we do not see any evidence or other basis to believe that theproposed process changes would result in a netoverall efficiency in the

VA adjudicatory process. There can be little reasonable doubt that the

proposed changes would create a more adversarial process at both the

initial claim and NOD stages based on the technical aspects of whether

a form is complete enough (initial claim) or an issue is identified

enough (NOD). Such subjective standards will likely, if not

inevitably, spawn waves of litigation. Indeed, this is the lesson of the

former well grounded claim requirement. Here, VA proposes twowell

grounded-claim-type barriers. Based on our decades of experience, we

submit that the unintended consequences of the proposed changescould not only negate the efficiency gains from standardized forms, but

further clog the system with a flood of ancillary litigation.

In our view, there are many other efficiency changes that VA could

implement without the real risk of making matters worse. For

example, under an earlier efficiency initiative known as the

Simplified Notification Letter, each regional office currently issues its

own version of a rating decision. Some consist of little more than a

single page stating a claim has been denied and can even vary in

content and style within the same office. Indeed, we have seen some

rating decision documents which did not even state whether the claim

was granted or denied. Not only does inconsistent rating decision

structure and language confuse claimants, resulting in additional

correspondence to the agency for clarification, they also create

additional litigation when clarification is not provided or the

information provided is found legally deficient.

Another example is the diversity of Decision Review Officer (DRO)

review practices. Again, each regional office, if not each DRO, appearsto operate under independent policies or procedures for conducting

reviews. We have found that when a DRO is willing to contact a

claimant or representative after reviewing a file, but before a formal

hearing, the need for a hearing is dramatically reduced. Yet such

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NPRM Comments

December 30, 2013

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informal telephonic hearings are generally not encouraged as part of

the DRO process unless specifically requested.

And, of course, simply maintaining an index of the documents in

claimants VA claims files would entirely eliminate the delays caused

by VA rating staff searching through thousands of pages of records

each time an issue arises. To our knowledge, the Secretary has never

provided any time motion study or other evidence to support his

steadfast refusal to implement such a basic administrative tool. In any

event, we submit that a standardized form buried in thousands of un-

indexed pages takes just as long to find as any other document. This is

especially problematic when it admittedly takes an average of 22.6days to internally deliver mail a condition few, if any other

organizations would tolerate and one the Secretary also has failed to

even suggest improving.

At the very minimum, therefore, the agency should be required to

explain whether and how it considered the consequences to the overall

adjudicatory process of its proposed changes and whether other, less

dramatic, changes could improve process efficiency without risking the

significant adverse impacts to veterans and their families from

additional litigation and associated delays.

We look forward to your thoughtful response to our comments.

Sincerely,

/s/ Douglas J. Rosinski

/s/ Katrina J. Eagle

for Veterans Justice Group, LLC

Encl: Detailed Comments

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Veteran Justice Group, LLC, Detailed Comments on the

Notice of Proposed Rulemaking Regarding Standards andAppeals Forms at 78 Fed. Reg. 65,490 (Oct. 31, 2013)

General Comments

VJG strongly agrees with the stated purpose of the NPRM to

streamline and modernize the VBA claims and appeals process in

order to expedite and maximize the delivery of benefits to veterans and

their families. 78 Fed. Reg. 65,490, 65,493 (Oct. 31, 2013). We also

agree, in principle, that standard forms and increased use of technologyand paperless communications are useful tools for achieving those

goals. We encourage the Secretary to continue to implement such

methods when and where useful.

We respectfully disagree, however, with the path that the Secretary

has chosen in this rulemaking. As discussed in detail below, the

proposed rules would, if implemented, shift significant burdens and

duties from VA to claimants. These actions (1) erect barriers to the

initial filing of a claim and (2) create a fully adversarial initial appeals

process requiring the technical pleading of issues on appeal. Whetheror not these changes actually move VA towards its goals, which we

question, in our view the price is too high in terms of unfair, technical,

and arbitrary denials of benefits to otherwise deserving veterans and

their families. See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir.

2009) (The VA disability compensation system is not meant to be a

trap for the unwary, or a stratagem to deny compensation to a veteran

who has a valid claim). We strongly believe that the VA disability

compensation system is also not meant to be streamlined and

modernized by avoiding processing the valid claims of unwary

veterans or claimants unschooled in the details and technicalities of the

proposed system.

In addition to the legal issues we identified with the NPRM, we also

question the need for such a dramatic reversal of decades of accepted

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VJG Detailed Comments

December 30, 2013Page 2 of 10

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practices and established expectations while many other, less

disruptive, administrative changes clearly within the Secretarysauthority remain untried. For example, the NPMR essentially

eliminates all written and non-standard submittals in favor of web-

based forms. Yet, the Secretary failed to discuss the use of email for

routine communications and submittal of forms and evidence. In our

considerable experience, email exchanges of information tremendously

accelerate resolution of claims, if only because it avoids the weeks long

delay VA admits burdens mailed documents. Yet, VA has refused to set

up dropboxes or make other policy provisions to accept electronic

communications.

Nor has the Secretary addressed the lessons learned for an earlier

efficiency initiative known as the Simplified Notification Letter,

under which each regional office currently issues its own version of a

simplified (i.e., shortened) rating decision. Some rating decisions now

consist of little more than a single page stating a claim has been

denied. The form and content can even vary between rating teams

within the same office. Indeed, we have seen some rating decision

documents which were so simplified that they did not even state

whether the claim was granted or denied. Not only does such

inconsistent rating decision structure and language confuse claimants,

resulting in additional correspondence to the agency for clarification, it

also creates additional litigation when clarification is not provided or

the information provided is found legally deficient.

Another example is the diversity of Decision Review Officer (DRO)

review practices. Again, each regional office, if not each DRO, appears

to operate under its own policy or procedure for conducting reviews.

We have found that when a DRO is willing to contact a claimant or

representative after reviewing a file, but before a formal hearing, theneed for a hearing is dramatically reduced. Yet such informal

telephonic hearings are generally not encouraged as part of the DRO

process unless specifically requested. Weeks, if not months, could be

saved if DROs and claimants or their representatives could initially

discuss the issues on review and the expectations underBryant v.

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Shinseki, 23 Vet. App. 488 (2010), instead of doing so on remand from

the Board of Veterans Appeal or the Court of Appeals for VeteransClaims.

Further, by simply maintaining an index of the documents in

claimants claims files VA would be able to more easily identify issues

and contentions associated with claims that are filed and entirely

eliminate the delays caused by VA rating staff searching through

thousands of pages of records each time an issue arises. See78 Fed.

Reg. at 65,492. To our knowledge, the Secretary has never provided

any time motion study or other evidence to support his steadfast

refusal to implement such a basic administrative tool because of thepurported burden in creating and maintaining an index. This is a

particularly galling and unsupported position as we, and all other

advocates, have to review the same records and can attest to the net

efficiency of preparing and using an index, no matter how large (or

small) the claims file.

In any event, we submit that a standardized form buried in

thousands of un-indexed pages takes just as long to find as any other

document. This is especially problematic when it admittedly takes an

average of 22.6 days to internally deliver mail a condition few, if

any other organizations would tolerate and one the Secretary also has

failed to even suggest improving. See78 Fed. Reg. at 65,493. As a

minimum, therefore, the Secretary should have to provide evidence

that the more disruptive proposed actions are required without at least

trying other, less traumatic, changes.

In light of the disruptive process changes attached to the proposed

rules, we submit that the October 31, 2013, Federal Register Notice of

Proposed Rulemaking (NPRM) is defective as a matter of law.Although styled as Standard Claims and Appeals Forms, the

proposed rule changes fundamentally alter the heretofore veteran

friendly and paternalistic VA adjudicatory process. This far exceeds

the scope of a rulemaking proposing mere forms. Contra5 U.S.C.

553(b)(3). Whether intended or not, the effect of such a misleading, or

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at least not fully accurate, title is to reduce the likelihood of public

participation in this rulemaking. Indeed, those who support thegeneric concept of standard forms may vigorously oppose converting the

VA adjudicatory process into a fully adversarial system as a part of

implementing those forms.

Such dramatic changes, whether or not the Secretary is ultimately

determined to have the authority to implement them, require a full and

transparent rulemaking. The agency, therefore, should publish a new

NPRM with a title accurately reflecting the substantive impacts of the

proposed actions and otherwise compliant with rulemaking

requirements.

Our specific comments are discussed in the following sections.

A. The proposed regulations create a fully adversarial appellate

process assigning technical legal duties to appellants.

VJG supports updating and streamlining VAs ossified

administrative and appellate processes. We submit, however, that

existing laws explicitly prohibit VA from creating an adversarial

adjudicatory process to do so. See, e.g., Walters v. Natl Assn of

Radiation Survivors,473 U.S. 305, 309, 311 (1985) (VA process is

designed to function throughout with a high degree of informality and

solicitude for the claimant and the process prescribed by Congress for

obtaining disability benefits does not contemplate the adversary mode

of dispute resolution utilized by courts in this country). We have

found no authority for VA to fundamentally alter this premise, which

has been repeatedly cited by the United States Supreme Court as

underpinning the basis of its decisions in the veterans matters brought

before it. SeeHenderson v. Shinseki, 131 S.Ct. 1197, 1999 (2011) (Thecontrast between ordinary civil litigation . . . and the system Congress

created for veterans is dramatic and VA proceedings are informal and

nonadversarial); Sanders v. Shinseki, 129 S.Ct. 1696, 1707 (2009) (VA

adjudicatory process is not truly adversarial, and the veteran is often

unrepresented during the claims proceedings).

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Contrary to the fundamental principle guiding VA since its

inception, the proposed rules create afully adversarial appellateprocess. VA proposes nothing less than to change the Notice of

Disagreement (NOD) from a general notice to a technical pleading that

(1) requires a claimant/appellant to enumerate the issues or conditions

for which appellate review is sought and threatens that (2) any issues

or medical conditions not enumerated would not be considered

appealed. 78 Fed. Reg. at 65,500. Thus, it is clear the result of the

proposed rules would be that a claimant/appellant who failed to

completely identify the issues on appeal at the NOD stagewould

forever foreclose otherwise appealable issues.

Such a technical pleading requirement is contrary to law. On an

appeal the law is clear that the Board is required to consider allissues

raised eitherby the claimant or by the evidence of record. Comer v.

Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) (citing Robinson v.

Mansfield, 21 Vet. App. 545, 552 (2008) (emphasis supplied)). The

proposed rule eliminates VAs duty to accept an NOD regarding issues

based solelyon the record. The Court of Appeals for the Federal Circuit

has made explicit that a liberal and sympathetic reading of appeal

submissions is necessary because a pro se veteran may lack a complete

understanding of the subtle differences in various forms of VA

disability benefits and of the sometimes arcane terminology used to

describe those benefits. Comer, 552 F.3d at 1368-69; see also Forshey

v. Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002) (An unrepresented

litigant should not be punished for his failure to recognize subtle

factual or legal deficiencies in his claims.). Thus, this proposed rule is

not consistent with the law and exceeds the Secretarys authority to

implement. Contra38 U.S.C. 501(a).

B. The proposed rules eliminate VA statutory duties and createbarriers to entry to the constitutionally protected claims process

The Secretary also proposes to dramatically change the process for

submitting a claim and establishing an effective date based on

submitted claims. The purported basis for these changes amounts to

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VAs inability to perform its statutory duties. See, generally, 78 Fed.

Reg. at 65,491-493 (discussing purported burdens on VA). The VAclaims process has been explicitly found subject to constitutional due

process. Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir 2009). We

therefore challenge the Secretarys assertion that the general authority

in 38 U.S.C. section 501 is sufficient to implement rule changes which

create new and substantive duties for claimants as prerequisites to

obtaining VA assistance pursuant to 38 U.S.C. Section 5103A.

Moreover, we do not agree that there is a need to burden claimants

with satisfying arbitrary and subjective requirements in order to

modernize or streamline VA processes. The basis for thisdisagreement is that, as discussed earlier, many other, less intrusive,

administrative changes exist. Indeed, it appears to us that many of the

VA burdens are self-inflicted (i.e., lack of files indexes, inability to

locate specific submittals, weeks to route mail) and would not be

tolerated in other organizations seeking to improve efficiency. As these

alternatives would not impinge on a veterans rights, we submit that

the Secretary has, if anything, a heightened duty in this case to explain

his choice of the more (indeed, most) intrusive options. See generally,

Portland Cement Assn v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).

No such discussion appears in the NPRM and so it is deficient as a

matter of law.

InAkles v. Derwinski,1 Vet. App. 118, 120 (1991), the Veterans

Court determined that [t]here is no requirement in the law that a

veteran must specify with precision the statutory provisions or the

corresponding regulations under which he is seeking benefits. The

Veterans Court also long ago rejected the Secretarys attempt to

impose such technical pleading requirements as a basis for denying an

appellants claim as violative of 38 U.S.C. section 5107(a). Hayes v.Brown, 4 Vet. App. 353, 357 (1993). We see no basis for a different

result solely because the Secretary is proposing the same type of

requirement in a rule rather than seeking to create it in an

adjudication.

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We particularly question the legal basis for the elimination of the

substantially complete category of claims. Congress specified that theSecretary shall make reasonable efforts to assist a claimant in

obtaining evidence necessary to substantiate the claimants claim for a

benefit. 38 U.S.C. 5103A(a). Yet, the Secretary proposes that

electronic claims applications that fall short of the standards of a

complete claim would not constitute claims of any kind, incomplete or

otherwise and that this rule applies regardless of the reason for

falling short of the standards of a complete claim. 78 Fed. Reg. at

65,495. We submit that this proposed rule is incompatible with the

duty to assist mandated by Section 5103A. Indeed, as we read it, not

only would no VA assistance be afforded to a substantially completeclaimant, he or she would not even be considered a claimant under 38

U.S.C. Section 5103A or Cushman.

In addition, VA explicitly stated that anything other than a

complete claim could notbe the basis of an effective date. 78 Fed.

Reg. at 65,495 (emphasis added). As the effective date directly

determines the amount of retroactive benefits, the proposed rule

directly impinges on a veterans protected property right in VA

benefits. The proposed rule, therefore, also violates Cushmanfor this

reason as well.

Further, this is not even burden shifting, but the creation of an

entirely newburden on claimants to identify the specificmedical

conditions for which they seek benefits. 78 Fed. Reg. at 65,496

(emphasis supplied). The Veterans Court has already explicitly

rejected requiring a claimant to identify the specific medical condition

for which he or she seeks compensation as it is left to the factfinder

not the claimant to weigh the evidence and determine the nature of

the condition claimed. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).Thus, the Secretary cannot convert the province of medical

professionals to diagnose or label a [] condition into a claimants duty.

The Secretary also has again ignored that he is obligated to

determine all potential claims raised by the evidence. Comer,552

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F.3d at 1367 (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.

Cir. 2001)). Ignoring the available evidence until and unless acomplete claim is submitted denies veterans with substantially, but

not fully, complete claims anyVA assistance. Contra38 U.S.C.

5103A(a).

Finally, as discussed more fully below, the proposed requirement for

a complete application to invoke the duty to assist is

indistinguishable in effect from the well grounded claim requirement

eliminated by Congress in 2000. In addition to the legal deficiencies

identified above, the Secretary failed to address how the proposed

completeness rule would not result in the same morass as the earlierrequirement.

Thus, while we agree that the Secretary has clear authority to

prescribe the forms of application discussed in the NPRM, we submit

thatthe associated regulationsare notconsistent with the controlling

law. Contra38 U.S.C. 501(a). Thus, whatever the expected efficiency

gains from the proposed rules, Congressional not Secretarial action

is required to create the sort of adversarial process and technical

pleading burdens proposed here.

C. Reliance on individual regional offices to properly implement VA

Central Office intentions regarding form completion is misguided.

In any event, even should the Secretary possess the authority to

create the proposed initial form completeness and technical appellate

pleading requirements, a vague intention to not be overly technical

in determining whether claimants have completed a form, 78 Fed. Reg.

at 65,499, creates yet another set of adversarial barriers. VA regional

offices have a history of independently interpreting legal requirements.Indeed, as most relevant to this NPRM, Congress explicitly identified

inconsistent interpretations of the well grounded claim requirement by

VA regional offices as a basis for revoking that requirement.

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While VA regional offices historically requested service

medical records and documentary evidence in thepossession of VA medical facilities on claims, the extent to

which a claim is developed more fullyto include a VA

examination or requesting private medical records differs

among VAs regional offices depending on the subjective

determination of the claims examinerthat a particular

claim is not well-grounded.

H.R. 106-781 (Jul. 24, 2000) (emphasis supplied). Further, the

litigation spawned by the varying interpretations not only clogged the

courts, but also resulted in a process placing burdens on claimants fardifferent from what was intended by Congress.

In Morton v. West, 12 Vet. App. 477 (1999), CAVC held that

VA does not have discretion to adopt policies to assist

claimants prior to the submission of a well-grounded claim . . .

. . .

Mortonand its predecessors have significantly altered the

type and the timing of assistance which VA had

traditionally provided to veterans and other claimantsseeking VA benefits. Irrespective of and prior to the

Courts interpretation of the language of section 5107, VA

had traditionally assisted claimants up front. In Morton,

the Court ruled that VA is not free to do so although the

Court did note in Mortonthat Congress could specify a

different rule by statute. The Committee here chooses to do

so. The Committee bill, in summary, modifies the pertinent

statutes to reinstate VAs traditional practice of assisting

veterans at the beginning of the claims process. In doing so,

the Committee concludes that the concept of well

groundedness has no further practical utility, and so it has

eliminated the term from pertinent statutes.

S.R. 106-397 (Sep. 6, 2000) (emphasis supplied).

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Thus, not only did Congress object to the inconsistent application of

the well grounded claim requirement, it specifically objected to theelimination of the traditional practice of assisting veterans at the

beginning of the claims process. As a result, the well grounded claim

requirement was eliminated by Congress in the Veterans Claims

Assistance Act of 2000. Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9,

2000).

The NPRM contains no discussion of this previous experience or

Congressional dissatisfaction with the well grounded claim

requirement, much less evidence or other basis to believe that

implementation of twosuch gateway requirements would produce anydifferent result. Indeed, the requirement of a complete application

before even establishing apossibleretroactive effective date appears to

us to directly conflict with Congresss expressed desire to provide up

front assistance to claimants precisely to preventthe loss of benefits

because of such administrative traps.

In sum, the Secretarys proposed rules would implement far more

than standard forms the Secretary has proposed profound changes to

nature of VA benefits adjudication. Indeed, the Secretarys proposals in

essence seek to avoid delivering mail, locating documents, and reducing

VA employee workload by undermining the paternalistic and veteran

friendly pillars of the system which have roots reaching back to the

nations founding. To us, the cure is far more destructive than the

diagnosed disease.

Even if the Secretary possessed the authority for such dramatic

action, he need not proceed on this path to achieve the results he seeks.

Many minimally disruptive actions, including measured introduction of

standard forms, belie the need to overturn the entire VA adjudicatorysystem. In any event, we submit such extreme action is not required,

at least not without some evidence that other, less disruptive, actions

would not provide similar or better results.

Documents

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