VA Disability Process Under Scrutiny
Is the VA disability process racist? The National Veterans Council for Legal Redress and the Black Veterans Project say maybe. They are suing the Veterans Administration, saying their disability determination process lacks “transparency and accountability.”
An initial review indicated that black Veterans received disability benefits at a “significantly lower rate” than their white counterparts. These advocacy groups are requesting disability determination data broken down according to gender and race. The groups also demanded any documents pertaining to internal investigations in this area. Under the Freedom of Information Act, the government is supposed to release most data to anyone who asks. This time it’s going to court. The advocates are hoping to find out for sure whether VA really is giving more compensation to white veterans.
“Black veterans have long faced racial discrimination from the VA, the very agency that is tasked with serving them,” remarked NVCLR director Garry Monk.
Transparency is key to a proper disability determination. Unfortunately, it is also missing from many VA proceedings, especially at the initial Claims Examiner level. Typically, the Claims Examiner uses the C&P (Compensation and Pension) medical examination report to determine the existence and extent of disability.
C&P examiners are not usually specialists; they’re generalists taking a shot at describing the disability. This means there’s a lot of room for implicit biases to potentially affect whose conditions they think are serious. And since most C&P doctors are outside contractors, VA might not have great information sources to double-check.
The 2017 VA reforms help a little. Claims Examiners must give Veterans a clear explanation which explains their reasoning if they deny a claim. Even if it’s just that they trusted the C&P report, the explanation is usually a roadmap that a VA disability attorney can use to navigate the appeals process.
None of that helps reverse the initial determination. But it is very useful in the accountability phase of a VA disability claim. Claims Examiners are not mavericks who make decisions based on subjective views. Their decisions must follow the rules. If they do not, they are subject to reversal or modification.
If the Claims Examiner merely looked at the report incorrectly or applied the wrong standard, higher level review is usually a good idea. A senior Claims Examiner, who was unaffiliated with the initial determination, re-examines the same facts. Higher level review is usually the fastest VA disability appeal avenue. Furthermore, the VA has a duty to assist the Veteran.
Sometimes, the problem is more fundamental, like an inadequate C&P examination. In these situations, VA disability attorneys often opt for supplemental review. There is no formal appeals hearing, but the Veteran can introduce new evidence, such as an IME (Independent Medical Examination). As a bonus, the burden of proof is now lower. So, if there is any chance the new evidence might affect the outcome, the VA must consider it.
Frequently, the well-established ways are the best ways. Veterans seeking to overturn unfavorable Claims Examiner decisions may still opt for full hearings before the Board of Veterans Appeals. The wait is longer, but a BVA essentially combines the first two options. The Administrative Law Judges who constitute the BVA are highly experienced. Most of them are former Claims Examiners or other VA employees. Furthermore, in addition to introducing new evidence, attorneys can also make legal arguments.
Count on Dedicated Attorneys
Attorneys inject transparency and accountability into the VA disability determination process. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. Therefore, it does not create an attorney-client relationship.