Written by William & Mary Law Student Aaron Petters

“Let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall borne the battle, and for his widow, and his orphan”[1] These words delivered by President Abraham Lincoln have become the motto for the Department of Veterans’ Affairs (VA) as the agency attempts to answer President Lincoln’s call.  Unfortunately, many veterans today believe that the VA goes by a completely different motto, “delay, deny, hope they die”.  Veterans find evidence that this slogan is representative of the VA’s ethos in the seemingly endless investigative reports across the country that expose VA problems.  One such report from CNN reveals that bad VA health care may have killed over 1,000 veterans.  Other reports expose secret waiting lists and evidence of cover ups.[2]  Although the VA certainly deserves its fair share of criticism, evidence suggests that one reason for the delays may actually stem from the VA’s non adversarial system and its duty to assist.

When a veteran submits a claim for benefits with the VA the agency is required to assist the veteran in various ways throughout the process.  Known as the “duty to assist”, a major component of this duty involves gathering necessary records to complete the veteran’s claim.[3]  These records can include medical reports, social security information, and military service records.  The VA must continue trying to obtain these records until one of two things happen.  Either the VA finds the necessary records, or they determine that the records do not exist.[4]  While the VA can continue to process the claim without those records, the claim cannot ultimately be completed until one of the aforementioned outcomes is reached.[5]

This additional time spent gathering records has significantly lengthened the evidence gathering phase of claims, and thus increased the delay for benefit decisions.  Exacerbating the problem is the fact that records for National Guard and Reserve members are particularly difficult to gather.[6]  The difficulty occurs because this group of service members often serve nonconsecutive tours of duty and are seen by private medical providers in between deployments.[7]  Since upwards of 43 percent of current conflict veterans are National Guard are Reserve members, the delay is compounded.[8]

In 2007, the VA contracted with IBM Global Services to conduct a detailed review of the VA claims processing system.[9]  This review confirmed that the duty to assist is increasing delays in the VA system.  The review found that compliance with the Veteran’s Claims Assistance Act (VCAA) increased the time required to process claims and noted that two thirds of the time needed to process a claim was devoted to developing evidence in support of the claim as required by the VCAA.[10]

Despite evidence that the duty to assist does add to VA delays, the duty should not be limited or removed altogether.  Maintaining the non-adversarial system is a key component in caring for our veterans and ensuring that the system is working with them rather than against them.  However, the evidence does show how even ideas that are designed to help veterans can lead to problems in the long run.  The Department of Veterans’ Affairs and lawmakers should bear this lesson in mind while offering solutions to current VA issues.

[1] The Origin of the VA motto, http://www.va.gov/opa/publications/celebrate/vamotto.pdf

[2] Bad VA care may have killed more than 1,000 veterans, senator’s report says, http://www.cnn.com/2014/06/24/us/senator-va-report/, see also The VA’s Latest Major Problem: An Inspector General That Hides Damaging Reports About VA Failures, http://www.theblaze.com/stories/2015/01/15/the-vas-latest-major-problem-an-inspector-general-that-hides-damaging-reports-about-va-failures/.

[3] M21-1MR, Part 1, Chapter 1, Section A, Topic 2.

[4] Veterans’ Disability Benefits, Challenge to Timely Processing Persist, p. 9http://www.gao.gov/assets/660/652979.pdf

[5] Id.

[6] Id. at 10.

[7] Id.

[8] Id.

[9] Michael Walcoff, Examining the VA Claims Processing System, February 14, 2008, http://www.va.gov/OCA/testimony/hvac/sdama/080214MW.asp.

[10] Rory E. Riley, The Importance of Preserving the Pro-Claimant Policy Underlying the Veterans’ Benefits Scheme: A Comparative Analysis of the Administrative Structure of the Department of Veterans Affairs Disability Benefits System, p. 22, http://www.bva.va.gov/docs/VLR_VOL2/Copy3–RoryRiley.pdf