The Department of Veterans Affairs Has Lost a Nail

An eighty-one year old widow texted me last week asking me to call as soon as possible. When I called she was nearly in tears. Two weeks earlier I had represented her during a Board of Veterans Appeals (BVA) hearing in Nashville, Tennessee. The veterans law judge was considerate and helpful, suggesting a Veterans Affairs “clear and unmistakable error” approach I had not considered. I promised to follow up by providing the judge additional information. One of the documents mailed to him at his Washington, DC address was a copy of the late veteran’s claim for additional compensation date stamped upon receipt by the Department of Veterans Affairs on May 18 2004.

The widow had received an official envelope from the Department of Veterans Affairs, Claims Intake Center, Janesville, Wisconsin addressed to her late husband. He passed away in March 2014. She fearfully opened the envelope. “Fearfully” because her claim for dependency indemnity compensation had been originally denied by the VA and was still, over five years later, in an appeal status which finally resulted in the recent hearing. We will not know the outcome of her appeal for several months – either $1,309 a month or nothing. She is not a wealthy woman.

She interpreted the letter as threatening, albeit addressed to her husband, with such phrases as “This form is outdated and no longer accepted” and “If we do not receive the completed current form from you, we will decide your claim without this information.” How could she get her dead husband to sign a current form? How might this affect her appeal? What could she do?

You can deduce what must have happened. The envelope addressed to the BVA in Washington, DC must have been forwarded to Janesville for scanning and input – the VA avoids paper like a plague these days – but it is unfair and profoundly insensitive of the Department of Veterans Affairs to have needlessly caused such stress on a woman still grieving, and being forced to relive her husband’s death with every contact with the Department, the judge, and me, during this lengthy appeal process. She waited over four years for her first BVA hearing. An overzealous, overworked, or incompetent Janesville screening employee must have seen the “VA Form 21-8940 DEC 1994” on the husband’s already-filed-and-date-stamped-as-received-fifteen-years-ago document and looked no further. That was enough information in his or her mind to close that bit of correspondence with a computer generated form letter to a dead man.

Let’s leave the grieving widow for a few moments to consider some other examples of the Department of Veterans Affairs communication skills: I have on my desk another official-looking envelope from the Department. This one was addressed to me via a single sheet of white paper folded so my name and address – the only printing on the paper – would show through a window in the envelope. That’s all that was in the envelope – the single sheet of white paper.

I only have a few clients, now less than ten. Helping veterans and surviving spouses on a purely pro bono basis is both satisfying and frustrating. The Department is supposed to mail me a “cc” copy of any correspondence they mail to any of my clients. Sometimes they do timely, sometimes they do not: on 8 April 2019 I received my “cc” copy of a VA compensation claim denial letter to one of my clients dated 26 February 2019. Ironically, he had provided me a copy of the 26 February denial, we had already initiated a reconsideration request, and the other hand of the VA had already agreed and scheduled his compensation examinations for 22 April. Like the widow’s needlessly stressful letter, one hand of the VA did not know what another hand was doing.

Back to the mystery envelope: I called the VA 800 827 1000 number. They knew nothing. I contacted all my clients. None of them had received anything from the Department. Not knowing what I missed was, and remains, a concern. Would one of my clients, who had placed their trust in me, lose their case because I failed to take prompt action regarding an issue I should have known about but did not because the VA did not include the actual whatever-it-was-supposed-to-be?

Maybe the mystery envelope was an attempt to make up for another lack of communication experience with VA, this one personally costly: In the spring of 2009 I formally applied for the current Post-9/11 GI Bill VA educational benefits program (having been called up for a total of two and a half years service after 9/11) and on 6 July received an equally formal certificate of eligibility for not quite five months of full time educational benefits. A cover letter explained the reduced amount was due to my having used, as I fully disclosed on the application, VA Chapter 34 educational benefits after my return from Vietnam. I found a degree program at Indiana University, applied, submitted work samples in a couple of prerequisite areas and was granted exceptions to both, was accepted, enrolled for the spring semester 2010 (reasoning the glitches in the new program should be fixed or at least better by that time), the university veterans affairs office forwarded the appropriate enrollment forms to the VA on 22 November 2009 without any negative feedback, and I started classes on 10 January 2010, having quit my community college instructor position to do so. In early March, at the start of mid-term exams (‘Had a 4.0 GPA going) I indirectly discovered the VA was not going to pay me any educational benefits: “We sent you a letter dated 7 July 2009.” I had never received any such letter. We were still supporting our disabled daughter and money was tight. I appealed, but still had to drop out of school because of the lack of income and past due tuition expenses. Over the following months which became years I finally found and contacted a reasonable VA manager.

Why did the appeal take so long? The VA lost the formal appeal form they sent which I completed and returned to the address provided. The form asked for my Social Security number. However, my Chapter 34 educational benefits and my Post-9/11 educational benefits claims were processed under my original VA Claim number, 25 322 ***. My appeal form was scanned and filed in an electronic SSN file with no action taken because there were no educational program claims or denials under my SSN. Even when I worked for the VA in the late 1970s we could cross-reference SSNs to claim numbers. They had not bothered to do so with a formal appeal form, a form which omitted asking for a pre-1973 VA claim number. The 2009 VA must have designed the education-specific, formal appeal VA Form 9 assuming no Vietnam era veteran would serve on active duty after 9/11. Many did.

Back to the only reasonable VA manager: I mentioned I had still never seen the alleged 7 July 2009 “We made a mistake” letter. He tried to mail me a copy. His cover letter arrived stating a copy of the 7 July letter was enclosed. It wasn’t. I had, in parallel, contacted our local US House of Representatives member to help. His staffer for veterans affairs also asked the VA for a copy of the 7 July letter. The VA responded to her with a similar cover letter also stating a copy was enclosed. It wasn’t. It became obvious whatever the magic “send/include the letter” button mechanism might be, it was not working three times out of three tries.

The fruitless appeal process ended in Washington, DC during a hearing with a Board of Veterans Appeals veterans law judge. (I was in DC anyway trying to get a Purple Heart for a WWII Army veteran. By this time our daughter had passed away.) Near the close of the hearing, at which point it was obvious I had lost, I stated to the judge, “If we accomplish nothing else from this appeal, please communicate to the Veterans Benefits Administration that any information intended for benefit claimants or recipients which has potential for negative impact upon their lives should be transmitted in such a way as to provide confirmation of receipt.” I went on to point out VA application forms have asked for mailing addresses, telephone numbers, cell phone numbers, and email addresses for – well, for this century.

Response: “Would cost too much.” Signed delivery receipt would cost too much. Email read confirmation would cost too much. Telephone call would cost too much. They don’t care what price their customers pay but reasonable caution on the part of the VA would cost too much.

The Greatest Generation? Our local American Legion post commander asked me to check on the VA compensation being drawn by a member. We had taken this WWII Marine, Guadalcanal veteran on our first Hoosier Honor Flight to Washington, DC. He was the quiet, no problems, called no attention to himself veteran. Nearly deaf. Artillery. The Legion commander said he didn’t think the veteran’s compensation amount was correct. It wasn’t. The Guadalcanal, Green Hell, first time the Japanese land forces had been stopped, Marine who had been married since 1947 was drawing VA compensation for his profound hearing loss at the single, no dependents, rate. The VA response was, “We mailed him a dependency form to complete and return in 1976 when dependents allowance was extended to veterans drawing 30% and 40% service connected disability compensation. We never received it back.” There are at least three problems with this and probably more: 1) The veteran and his wife married in 1947. All VA application forms for service connected disability compensation include, then and now, a dependents section which asks if the veteran is married, if so when and to whom. The veteran must have completed and signed an application for the VA compensation he’d drawn for all those decades. That marriage information was and remains on record with the VA in the now deceased veterans VA claims folder. 2) The current VA Form 21-686c (Status of Dependents) with instructions is twelve pages long. The WWII vet, if he still lived and received this form today, would have to read and work his way through twelve pages to say, “No change. I’m still married.” The 1976 form was similarly complex. 3) How could the veteran have known he needed to submit the form if he never requested it and perhaps, as we have seen above, never received it? Or he received it and assumed since there were no changes, still married to same wife, he did not need to complete and submit? So the VA punished the veterans. It was easier for the VA to put the burden on those thousands of 30% and 40% service connected disabled veterans than to go through the records they already had, even though not checking their records risked the veterans being under compensated without knowing it.

Yes, his compensation was finally corrected for the last few years of his life, but only because his American Legion post commander had somehow found out it was in error. No, the VA did not accept responsibility for the error and certainly did not pay him any back compensation which would have been many thousands of dollars. He and his wife could have used the money for her dialysis co-pays.

Oh, I almost forgot: the VA never did approve his claim for compensation for his chronic fungus infection on both feet. His boots had rotted off in Guadalcanal. No treatment was available for such a minor concern; burning, splitting skin and itching feet; while men were being maimed and killed in combat. His wife and a series of podiatrists had trimmed the warped nails and treated his painful feet for all those decades. The quiet Marine who never called attention to himself had given up and did not want me to initiate an appeal. He had earned the right to not fight any more. He fought enough in 1942.

There are plenty of other examples, such as the standard “You have 60 days to reply” letter the VA sends during the first phase of their appeal process. When appellants do not receive this letter they don’t reply. Then they do receive a resulting denial letter – which starts another appeal, which includes another 60-day letter, which . . . but you get the idea. Often the appellant just gives up.

For the want of thought and kindness a widow was hurt. For the want of fairness veterans are hurt. For the want of confirming delivery, not only do the claimants/appellants lose but the Department of Veterans Affairs increases their own workload. For the want of a nail the horse, battle, and kingdom were lost. This all would be ironically funny but it hurts too much. But not too much to ignore.

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