As an Army soldier during the Vietnam War, David Best patrolled Korea’s demilitarized zone, lugging a 40-pound pack on his back in temperatures as bone-chilling as 20 degrees below zero and as smoldering as 100. During his service, Best developed an intermittent pain in his left knee, which radiated to his thigh and groin. “It felt like someone was stabbing me with a knife.”
After his discharge in 1969, he worked for the post office, and the pain would strike so acutely that his leg would fold and he’d crumble to the floor. “I would tremble from the pain,” says Best, now 58. “And girls would scream.”
Military and Veterans Administration doctors took X-rays of his knee, all negative. Had they probed further, they might have discovered the root of Best’s pain. In 1989, a private doctor finally diagnosed him with degenerative arthritis of the left hip. It had developed while he was in the service more than 20 years earlier as the result of an improper fit between the hip joint and its socket. Disguised as referred knee and groin pain, the arthritis was exacerbated by the heavy load he carried as a patrolman.
Since 1997, Best has battled the Veterans Administration for compensation benefits, which he says now total $300,000. And for 10 years, the VA has denied him. The case remains on appeal.
Best is one of 378,000 veterans mired in a backlog of pending claims and a system riddled with inconsistent and inaccurate benefits rulings, according to a report issued this month by the Government Accountability Office. It calls for a “fundamental reform of the VA’s disability compensation program,” adding that disability decisions are based on criteria written in 1945.
The problem is even worse, says attorney Craig Kabatchnick, who was the senior appellate attorney for the VA’s Office of General Counsel from 1990-95.
“Our job was to deny claims,” he says. “We celebrated beating veterans, especially those representing themselves.” There was no official policy, he says, but ranking attorneys instructed staff to fight and deny caseseven though the law mandated that they give veterans the benefit of the doubt.
Kabatchnick is now the supervising attorney for the Veterans Law Project, a new legal clinic at N.C. Central University, where he and 19 students from NCCU and UNC-Chapel Hill are defending veterans and preparing their claims and appeals for free.
In North Carolina, veterans’ fates lie at the VA Regional Office in Winston-Salem, where ratings officers, guided by a 182-page book, determine if a claim should be granted, and if so, at what percentage of disability, ranging from 0 to 100. The disability rating determines veterans’ monthly pay.
Yet, ratings officers are under tremendous pressure to process claims. In a federal survey, ratings officers indicated that productivity demands, high turnover, training and frivolous claims prevented them from adequately doing their jobs.
“They get a stack of cases every day and are told to adjudicate them even if a file is thousands of pages thick,” says Kabatchnick. “And it’s easier to deny than grant. You have to present evidence to grant, but for denial you can just write ‘insufficient evidence.’”
If a claim is denied, the veteran receives a letter explaining why; he or she can then appeal to the Board of Veterans Appeals. That decision can take at least a year.
“More often than not, it’s denial,” Kabatchnick says.
The Office of General Counsel didn’t respond to requests for comment by deadline.
In Best’s case, some of his military records are missing from the VA. It has denied his claim three times, requesting additional medical records and arguing that his hip arthritis isn’t service-connected because he didn’t complain of hip pain as a soldier. However, Best’s doctor says the knee and groin pain are symptomatic of hip arthritis; the law states that symptoms arising during service and continuing after a veterans’ discharge can be compensated.
Further complicating matters is a Civil War-era law prohibiting veterans from paying lawyers more than $10 to represent them until their case reaches its final appeal before the court. Few attorneys will work for that amount. For Best, it doesn’t even cover the cost of copying his 300-page medical file. So veterans usually hire service officers, known as VSOs, who work for service organizations such as the American Legion and Disabled American Veterans or county veterans’ offices.
In June, a new law will partially lift that 140-year-old ban and allow veterans to hire attorneys to represent them before the Board of Veterans Appeals. But the law, which passed in December as part of a larger veterans bill, still doesn’t allow them to get legal help when preparing their initial claim.
The law has caused tension between VSOs and lawyersand veterans are caught in the middle. The American Legion and some state and county officials say they support veterans hiring attorneys if there is a fee cap. The law limits attorney’s fees to 20 percent of past due benefits.
“We’ll take any assistance we can get for vets,” says Charlie Smith, the assistant secretary at the N.C. Division of Veterans Affairs, which offers services to North Carolina’s estimated 790,000 veterans. “But I’ve also heard from attorneys who say they don’t have time to learn the procedures of the VA.”
Kabatchnick argues that many VSOs aren’t qualified to interpret difficult medical/legal case law. A consultant’s report to the VA last year suggested that to improve the quality of claims, the VA should have stricter accreditation requirements for VSOs. Last year, former Chief Judge of the Court of Veterans Appeals Frank Nebeker wrote a letter to the House Veterans’ Affairs Committee contending the VA system “demeans veterans” by prohibiting them from hiring attorneys, adding that if claims had been handled by lawyers, they would move through the system more quickly.
Service organizations adamantly defend VSOs and their work, saying they are well-trained and have slightly better success rates before the appeals board. “Just because a person is an attorney doesn’t make him an expert in VA law,” says Steve Smithson, an American Legion spokesman. “The bottom line is, there’s enough work to go around for everybody.”
The DAV also contends that involving attorneys ignores Congress’ intent that there be an “open, helpful and pro-veteran” relationship between the VA and veterans. Yet, that relationship is actually more akin to a battle than a détente. Veterans have a “general frustration and distrust of the system,” a recent federal survey showed. The claims process is confusing, and the appeals gauntlet, combative. “I was under orders to fight the cases,” Kabatchnick says.
Moreover, critics charge that attorneys are merely trolling for profits, eyeing the thousands of future Iraq and Afghanistan war veterans who will apply for benefits.
“The problem with attorneys is greed gets in the way,” says Lou Washington, director of Durham County Veterans Services. “Vets need the money.”
They also need someone to count on. Best says the Fayetteville office of the state’s Division of Veterans Affairs hired a VSO from the American Legion to represent him before the Board of Veterans Appeals. Yet, when Best arrived in Washington, D.C., for his hearing, his medical records were there, but his VSO was a no-show. Best represented himself, and the judge sent his case back to the VA Regional Office, where it sat for nearly three years.
Properly developing the claim is crucial and often determines if a veteran receives benefits or if the case lands in VA limbo. By law, the VA is responsible for telling the vet what evidence is necessary to win the claim and for gathering military medical records; the veteran collects any private medical files. Kabatchnick says the VA isn’t fulfilling its duties, and the GAO agrees, stating regional offices are inconsistent in following the law.
Best has turned to the Veterans Law Project for help, and Kabatchnick has taken up his case. For Kabatchnick, who also works at the Durham law firm Everett & Everett, the project is a turnabout from his former life.
“I left [the Office of General Counsel] because I didn’t like the way vets were being treated,” he says. “My dad did military law and he said, ‘How can you sleep at night? How can you deny these guys benefits?’”
Meanwhile, doctors replaced Best’s left hip in 1997; his right hip, arthritic from uneven wear, was replaced in 2002. He still limps, but the pain is gone, Best says. His claim remains in limbo. “I feel like the VA is waiting for us veterans to die.”