Disability Benefits in the United States

Plain-English Law

Disability Benefits as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455):

Money paid from Social Security to those under 65 who qualify because of their work and earnings record and who meet the program’s medical guidelines defining disability.

Disability Benefits from the Department of Veterans Affairs

More than 210,000 veterans like Johnson have served in Afghanistan or Iraq since the war on terror and the war against Saddam Hussein began. Almost 40,000 have filed for disability benefits. At the end of 2004, a total of nearly 350,000 veterans awaited decisions on their claims—and 132,000 more awaited an outcome for their cases on appeal.

Many of these people entered the military trusting that, come injury, sickness, or death, the V.A. would provide for them and their families. It was a trust that has often been honored. With an annual budget of $70.3 billion, the agency cradles injured soldiers in a vast network of care that can heal their wounds, send them to college, train them for jobs, finance their homes, and, in the end, lay them to rest. Research at V.A. hospitals has led to breakthroughs in treating paralysis, chronic pain, and smallpox, and has otherwise restored the lives of thousands of veterans who returned from Iraq near death.

When it comes to disability benefits, federal regulations require the agency to presume a veteran was healthy when he enlisted, to help him build his case for a disability claim, and to give him “the benefit of the doubt” throughout the claims process. As the United States Court of Appeals for the Federal Circuit said in a recent case, the veterans benefits system “is imbued with special beneficence [for a] special class of citizens, those who risked harm to serve and defend their country.”

But in no other federal agency are Americans left so vulnerable, and with so little recourse if the government breaks its promise. Veterans have only a limited right of appeal, and, because the system is designed to be simple enough to make a lawyer unnecessary, they are prohibited by law from paying an attorney to help them through it. Unless a case reaches the courts, the only veterans who can fight the agency with a lawyer’s help are the few who find counsel willing to work for free.

The V.A. takes its motto from Abraham Lincoln’s second Inaugural Address: “to care for him who shall have borne the battle and for his widow and his orphan.” (…)

The 57 regional offices spread across the country are the V.A.’s version of neighborhood branches. They have a combined operating budget of almost $1 billion. They do business with nominal oversight from Washington, varying widely in their decisions and interpretations of V.A. regulations. They are bureaucratic mills that compete on quantity and speed—and too often fairness gets lost in the race.

When a veteran files a claim, it travels through four stages of review. Before 2002, one team of employees would guide the claim through all stages. Today, each team specializes in a single stage. Thomas Pamperin, an acting deputy director at the Veterans Benefits Administration, the V.A. division that handles disability claims, said that the new system has streamlined the process, and has enhanced the quality of the decisions made. But veterans’ advocates say that the change has led to errors by dividing the staff and hampering communication between teams.

First is the triage team, called that because it sorts claims by type and destination. It decides how many credits the office will earn for handling a claim. Credits are important because they help determine the size of the office’s overall budget and of the manager’s annual bonus. Claims of the same type get the same number of credits based on the average time it takes to handle such claims. A first-time claim, for example, earns more credits than one that is reopened to raise a benefit. Once the team decides how to categorize a claim, the office gets the same credit no matter how much time it spends on the claim, a rule that puts a premium on speed.

The claim goes next to the predetermination team, which gathers medical records and other essential evidence. Much of the evidence must come from the veteran himself, but many veterans complain that the teams often don’t make clear what information they need. Veterans usually receive a standard letter describing what they must provide. The letter is hopelessly long and unspecific, confusing recipients by asking for “competent medical or lay evidence to show” a disability or telling them how “to establish entitlement for service connected death benefits.” (…)

The predetermination team has to collect doctors’ opinions on whether, for example, a physical or psychological condition was “at least as likely as not” to be related to military service. The condition need not have been caused by service. But the team members, usually among a regional office’s least experienced civil servants, often don’t know what to ask for. “So the docs are writing things like, ‘I cannot say for sure what caused this condition,’ and that’s not even the standard,” explained Ronald Abrams, a former V.A. official who heads the National Veterans Legal Services Program, a nonprofit veterans’ advocacy group in Washington, D.C.

Deficient medical examinations have been a major problem for the V.A., accounting for about one-third of all incorrectly decided claims, according to an October 2001 report of the V.A. Claims Processing Task Force. The failure to ask doctors the right questions is only one reason. According to the report, V.A. medical centers, where most examinations occur, have not taken the exams seriously, and regional offices have tended to accept sloppy exams rather than report the centers to V.A. headquarters in Washington.

The V.A. has also ignored examinations that produced results favoring a veteran’s claim. Frederick Dambach, an Air Force veteran who served in Vietnam, spent seven years trying to prove that the rheumatic fever and other infections he contracted during the war caused his congestive heart failure. Four doctors backed his claim, but the V.A. was not convinced. It hired two ostensibly independent physicians to examine Dambach, and, when neither found a link between his service and heart condition, the V.A. denied his claim. The first doctor’s exam, though, was seriously flawed, and the second doctor turned out to be a V.A. employee. Citing these problems in a 2000 opinion, a federal appeals court ordered the agency to reconsider Dambach’s claim.

In other cases, the doctor’s opinion simply gets lost. Physicians gave Thomas Hoythya a clean bill of health when he joined the U.S. Air Force in 1987, but when his tour ended five years later, a medical examination found that he had developed diabetes. “I just wanted to get out,” said Hoythya, who fought in the first Gulf War, “so I blew off filing” for disability benefits. But over the next year his weight plummeted and his sight grew blurry, so he filed a claim with the regional office in Minneapolis, Minn. After another year, he got the word: The V.A. could not find his discharge exam, and there was no other proof that he had developed diabetes while in the Air Force. “The V.A. says we made every attempt to find it and we can’t, so you’re out of luck,” said Hoythya, who is still fighting the denial of his requested benefits.

The third stop for a veteran’s claim is the rating team, which analyzes the evidence, determines how disabled the veteran is, and decides whether to grant his request for benefits. (…)

In 1997, his discouragement extreme, Cushman visited the V.A. hospital in Portland to see whether his medical records from the 1970s contained anything that might help his case. After a while he came across the original copy of his doctor’s notes from November 1976. Something was wrong. He had previously seen a copy of the notes from the regional office’s file, and the document now in front of him looked different. “It was as if there was not as much there,” he said. “It bothered me.”

Cushman made a copy and took it home to compare with the version from the regional office. On that version, someone had added language saying Cushman was “applying for reevaluation of [his] back condition” and should only stop doing work that required him to “bend, stoop, lift.” That wasn’t the doctor’s recommendation at all. The handwriting didn’t look the same.

Cushman suddenly realized why the V.A. had been denying his claim all those years. Someone at the regional office appeared to have forged his doctor’s notes.

SINCE AT LEAST WORLD WAR II, when the nation struggled to accommodate millions of veterans seeking timely benefits, the V.A. has rewarded people who can churn out veterans’ claims, or at least pretend to. When Ronald Abrams joined the agency in 1975, employees would put a computer punch card into a box after finishing a claim, and the V.A. tracked productivity by counting the cards. “At the end of the day,” said Abrams, “the supervisor would just grab a bunch of cards and throw them in the box on his way out,” getting credit for work that had not been done. After tracking methods improved, the quickest way to handle a claim was to deny the benefit rather than to spend time analyzing the evidence that supported it.

The soaring number of claims in the aftermath of the Vietnam War increased the pressure for speed. Medical advances allowed more veterans to survive with disabilities. The herbicide Agent Orange prompted thousands of claims for unexplained ailments. The journey home, from combat and confusion over the war’s purpose to economic recession and antiwar protests, damaged many veterans psychologically.

The V.A. responded to the pressure with unpublished rules that discouraged rating officers from finding veterans like Cushman unable to work. For example, despite laws requiring the V.A. to help veterans get every possible benefit, an April 1984 directive from headquarters told employees not to infer a claim of unemployability and to send the required application form to the veteran only if he was clearly unemployable. V.A. headquarters further dissuaded rating officers from granting such claims by routinely reversing their findings that veterans were unable to work, according to a 1987 U.S. General Accounting Office report. Officials at V.A. headquarters told the GAO that they “may have gone too far” in cutting back such claims.

In the late 1980s, the V.A. made a costly mistake. It began to merge divisions and reduce staff, because it assumed that the end of the Cold War meant there would be no major wars for the foreseeable future and that the disability-benefits workload would remain static or decline. Then came the first Gulf War and claims involving Gulf War Syndrome, soft tissue sarcoma from Agent Orange emerging belatedly in Vietnam vets, and other complex conditions. In 1994, even as the military reduced its forces, more soldiers applied for benefits. Combat in Somalia, Bosnia, and other war zones increased requests for disability benefits. In 2000, the Veterans Claims Assistance Act eliminated a rule that said the V.A. did not have to help a veteran develop a claim unless it was “well-grounded.” The change forced the V.A. to review 98,000 claims that it had denied years before. From 1992 to 2001, the number of full-time employees handling benefits requests dropped from almost 15,000 to under 11,000. Meanwhile, the number of unresolved claims rose from about 530,000 to almost 670,000.

The system now suffers from an unfortunate coincidence of forces, according to James O’Reilly, a Vietnam veteran and professor at the University of Cincinnati College of Law. “It’s getting the aging baby boomers with the psychological baggage of having been involved in Vietnam. It’s getting the 80-year-old World War II vets who are now indigent, and it’s getting very angry young people back from Iraq and saying, ‘Where’s mine?’ ”

In December 2001, under orders from the White House to reduce its backlog of claims, the V.A. turned to yearly quotas. Each regional office that did not produce a minimum number of decisions would risk a bad evaluation—and a paltry bonus for its manager. Most managers required each rating officer to decide three claims a day, but some went as high as four or five, said Steve Smithson, an assistant director at the American Legion, the nation’s largest veterans’ group. Asked if that was a lot, Smithson gestured toward a two-foot stack of blue, loose-leaf binders containing one veteran’s file. “When you are under the gun to get out the numbers,” he said, “you are going to miss stuff.” Making the task even more difficult is the organization of a typical file. Unlike most federal agencies, the V.A. still piles documents into notebooks, a cumbersome system that dates from World War II.

And the penalty for getting a claim wrong is essentially nonexistent. In 2002, the V.A. started evaluating regional offices and their managers according to four factors, three of which measured the speed and quantity of claims decisions. Only one factor took accuracy into account. According to the General Accounting Office, the V.A. required offices that flunked the speed and quantity goals for 2002 to submit plans for improvement. But offices that flunked the accuracy goal were not required to do anything. Two of the offices received cash bonuses even though they got 25 percent of claims decisions wrong at one office and 29 percent wrong at the other. As the production rate increased, the overall average accuracy rate dropped from 89 to 81 percent in 2002, the latest year reviewed by the GAO. The V.A. said that it has stopped awarding bonuses to offices that fail accuracy goals.

Scant incentives to decide claims correctly encouraged practices such as “courtesy signatures,” where a rating officer provides the second signature required on a rating decision without reviewing the case. Each year, a team from the American Legion’s National Veterans Affairs and Rehabilitation Commission inspects a sample of regional offices. In a 2002 review of the St. Petersburg, Fla., regional office, the auditors found several instances of a “trainee adjudicator” giving a courtesy signature to help the rating team make its quota.

The problems at the regional office go deeper, however. Almost half the total files reviewed each year contain some kind of error, according to one team member. In 2002, the team reported that “there was a general willingness to cut corners and do whatever was necessary to meet the established production quotas” at the St. Petersburg, Fla., regional office, one of the nation’s busiest.

VETERANS APPEAL ABOUT 15 PERCENT OF ALL DECISIONS, and they can choose either a streamlined hearing before a “decision review” officer at the regional office or more formal consideration by the Board of Veterans’ Appeals. The officers reverse or order reconsideration of half the decisions they review, according to lawyers who have attempted to compile statistics. The board, for its part, disagreed with more than 60 percent of the 114,213 denials it considered from 2000 to 2003. At the next level, the U.S. Court of Veterans Claims ruled in favor of veterans in almost 60 percent of the 7,596 cases it considered on the merits. This high rate of reversal or remand, at every level of the process, suggests that claims are too often wrongly denied.

What the figures don’t capture is how many veterans give up. Without a lawyer, the appeals process can be daunting as well as time consuming, and most veterans have grown tired of fighting.

The V.A. insists that it is committed to accuracy as well as speed. Acting deputy director Pamperin emphasized that a random sample of all ratings decisions showed that their “quality level” increased from 81 percent in 2002 to 89 percent in 2004, meaning that 89 percent of the decisions were developed properly and supported by the evidence. Over the same period, he said, the agency cut the average time for handling a claim from more than 200 days to under 170 days. “We believe that as we improve quality, the cycle time improves as well,” he said. “The less you have to rework [claims] and the more you know your business, the faster you can go at it.”

When Cushman discovered in 1997 that his doctor’s notes had been altered, he demanded that the V.A. grant his benefits request. Eight months later, the head of the V.A. medical center in Portland sent him a letter. Dr. James Tuchschmidt wrote that he and other V.A. officials had “not been able to arrive at a reasonable explanation” for the forgery, but he assured Cushman that he had asked the regional office to “destroy all copies of the ‘altered’ document.” That was it. No more investigation, no rehearing. Almost 30 years after he first filed his claim, Cushman needed to fight on for a resolution—though the V.A. had disposed of the proof of its evidence-tampering.

Despite several efforts that failed in the 1980s, Cushman decided to try the Board of Veterans’ Appeals again. This time, with the evidence suggesting forgery, Cushman was sure the outcome would be different.

Cushman would have to prove that the Portland regional office made a “clear and unmistakable error” by denying his claim in 1977. In February 1999, the board issued its ruling. Cushman had presented a “plausible” claim, it said, but there was a technical problem. Maybe the regional office had committed clear error, but its decision had been “subsumed into” the board’s 1980 and 1982 rulings, and Cushman could not challenge it. If he wanted relief, he would have to attack the board’s rulings in another filing.

The board is the last stop for most veterans who are unhappy with their benefits. Its three-lawyer panels face the same production and cost pressures that can skew decisions in a regional office. The board can deny the appeal, or it can remand the case to the regional office, a choice so popular that the appeals process has become “a carousel consisting of remand, mishandling, rehearing, remand, and so on,” said James O’Reilly.

The pressures on the board first came to light in 1988, during hearings before a subcommittee of the U.S. House of Representatives’ Committee on Government Operations. Two former members of the board testified that it had a production goal of 40 cases a week for each three-member panel, and members of panels that handled the most cases would get bonuses as high as 5 percent of their salaries. The rules allowed members to earn an unlimited number of bonuses, but prohibited them from getting a bonus two years in a row. Daniel Bierman, a former panel member, testified that some members would stockpile cases during the year that they were ineligible for a bonus and then release the cases in the following year, when they would be allowed to claim their prize. Bierman also said that he had seen “as many as 102 cases turned in, in one week,” a rate that gave each member seven minutes and 48 seconds to handle each case.

The hearings prompted Congress to pass the Veterans’ Judicial Review Act of 1988, which created the U.S. Court of Appeals for Veterans Claims and allowed paid attorneys to represent veterans before the court. But the act did little to change the incentives that led so many employees to give cases short shrift.

Staff attorneys, for example, continued to receive bonuses based largely on the number of cases they handled. The attorneys got credit by drafting a proposed decision or by recommending a return of the case to the regional office, a much easier option. Some attorneys, though, went too far. In January 1995, Lawrence Gottfried was sentenced to 15 months in prison for destroying documents in veterans’ files so that he could bump the cases back to the regional offices. Less than eight months later, another staff attorney, Jill Rygwalski, received the same sentence for a similar offense.

The incentive system survived, said Abrams. “They just hide it better now.”

Cushman was not done with the V.A. It had all but ignored the changes in his doctor’s notes, but he determined to press his case a step beyond the agency, to the Court of Appeals for Veterans Claims.

First, he asked the court for an order requiring V.A. officials to give him a copy of their investigation and to turn over information that might reveal how the apparent forgery had affected his claim. The court denied the request, saying he could get relief through a normal appeal. So Cushman did appeal, asking the court to declare the V.A.’s decisions invalid because they were based on the altered notes. In November 2001, the court ruled that he would have to ask the board for relief before the court could weigh in.

The decision made no sense to Cushman or his lawyers. They produced transcripts showing that Cushman had already asked the board for relief in 1997. In any event, they argued, there was no good reason for the court to decline to rule.

At 60, Cushman remains intense. “I gave America extraordinary service. I mean, I wouldn’t even leave the [Vietnam] war after I was hurt,” he said. “Yet I feel like the government perpetrated a crime against me and I can’t even get anybody to look at that.”

By its own admission, the Court of Appeals for Veterans Claims treats lots of veterans the way it treated Cushman. “In the context of adjudication in this court,” wrote Judge Jonathan Steinberg in a 2000 decision, “outright reversal on the merits has been very rare.” The reason, said Steinberg, is that the law sets a high standard for telling the board that it is wrong. In a 2001 article for the American Bar Association’s Administrative Law Review, James O’Reilly argued that dozens of decisions show that the court consistently fails to demand fair and accurate decisions from the V.A. “The [court] itself,” he said, “seems a captive of a dysfunctional system.”

That seems to be what Congress intended. For decades, political resistance stopped Congress from considering proposals that would have allowed courts to review V.A. decisions and veterans to hire attorneys. The resistance came not only from the V.A., but from the powerful service organizations that monopolized representation of veterans and from the House Veterans’ Affairs Committee, many of whose senior aides had worked at the V.A. Court review would convert “a user-friendly system into an adversary system,” former V.A. General Counsel Donald Ivers told the National Law Journal in 1987.

But the 1988 hearings strengthened the argument for reform, and after four failed attempts between 1979 and 1987, Congress managed to pass the Veterans’ Judicial Review Act. Passage came, though, only after supporters of the act agreed to limit the new court’s power and independence along with the fees of lawyers who appeared before it.

The act makes it extremely difficult for the court to overrule the V.A.’s interpretation of the facts in a case, and most of the court’s decisions do not create precedent, meaning the V.A. can ignore them in other cases. The president, usually with the V.A.’s advice, can replace the court’s judges after 15 years because, unlike other federal judges, they are not appointed for life. And very few veterans are represented by attorneys before the court because legal fees cannot exceed 20 percent of any benefits past due, an amount too small to cover a lawyer’s costs in most cases.

UNDER THE SCRUTINY OF A NATION THAT HAS DEALT WITH ITS UNEASINESS about the war by embracing the warriors, the V.A. has tried to do better by the veterans who served in Iraq and Afghanistan. But the agency has done nothing to repair its deepest flaw: the failure to give soldiers effective recourse when the system lets them down.

Solutions are not hard to come by. Veterans should be allowed to hire attorneys to help them navigate the system. They should be allowed to appeal regional decisions to administrative law judges, independent authorities who are shielded from an agency’s influence. And most important, the board and the Court of Appeals for Veterans Claims should be eliminated because their decisions have become suspect.

Congress is probably not up to the task of making sweeping changes. As flawed as they were, the reforms under the Veterans’ Judicial Review Act took decades—and enormous political capital—to enact. The best that veterans can expect may be that the V.A. will put more experienced civil servants at the regional levels and create stronger incentives for rating officers to decide cases correctly.

But there is reason to hope for more. People who serve in the military today command greater respect and support than at almost any other time in recent history. SUVs display decals of yellow ribbons advising drivers to support our troops. If there is a moment for reform at the Department of Veterans Affairs, it is surely now. (…)

By Reynolds Holding

Cessation of Disability Benefits (in Disability Claims)

Some information about Cessation of Disability Benefits in this context.