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VA Sued for Delays in Providing Veterans With Health Records

VA Secretary Robert McDonald
VA Secretary Robert McDonald

A veterans' organization and a public advocacy group filed suit in federal court on Monday against the Veterans Affairs Department, claiming the agency has kept some veterans waiting longer than two years for records needed to apply for benefits.

"Veterans who have been injured and disabled in combat should not be forced to wait months or years to receive their records from the VA so they can apply for disability benefits," Bart Stichman, co-founder and co-executive director of National Veterans Legal Services Program, said in a statement.

Some of the seven veterans named in the suit have been waiting 25 months for records that should have been turned over to them within 20 days, according to the lawsuit. The complaint asks the U.S. District Court for the District of Columbia to find that the VA has unreasonably delayed providing the records and to order the VA to produce them within 20 days.

The veterans requested their VA health records in order to apply for special combat disability compensation benefits or for a rating increase, according to NVLSP and advocacy group Public Citizen.

Plaintiffs in the lawsuit are Army veterans George Ball of Palm Beach Gardens, Florida; Malik Biel of Elizabethtown, Kentucky; William Herndon of Mancos, Colorado; and Juan Rodriguez of Miami, Florida; Marine Corps veteran David B. Stringer of Crozet, Virginia; Navy veteran Jeffrey L. Wooden of Wapiti, Wyoming; and Air Force veteran Charles Hoffman of Aurora, Colorado.

Rachel Clattenburg, an attorney for Public Citizen, said the lawsuit "is about ensuring that our country keeps its promise to its service men and women, and their families."

If the VA is unable to meet its 20-day delivery time for the records, the agency is supposed to contact the veteran to say when the records will be provided, according to the two groups. If the VA denies releasing copies of the files, it is supposed to give the veteran an explanation for denial, the groups said.

The requested records would detail veterans' periods of service, circumstances of their separation, letters from the VA regarding decisions to deny or grant benefits, explanations for any rating already granted, service medical records and personnel files.

Five of the seven veterans named in the lawsuit requested their records in order to apply for Combat-Related Special Compensation. This program is for combat-disabled military retirees who, by law, have their monthly retirement docked by the amount of the disability compensation they were awarded.

Congress established the tax-free special compensation as a workaround to the law so that eligible retirees would get the benefit of their full retirement pay and disability compensation. These five have so far waited between 308 and 803 days for their records, according to NVLSP and Public Citizen.

The lawsuit over the records request delay comes as the VA continues to wrestle down its longstanding backlog of disability claims. That backlog -- made up of first-time claims not acted on within 125 days -- was more than 600,000 in 2013 but is now below 200,000, according to the department.

VA Secretary Bob McDonald said the department is on track to end the backlog by the end of 2015.

Some veterans groups believe the VA hopes to do that, in part, by slowing the rate of new claims applications by requiring new claims be filed on standard forms. NVLSP, The American Legion, Veterans of Foreign Wars and other organizations argue that many older veterans do not have access to computers to get the forms and would have difficulty filling them out.

The VA, by mandating the new system, effectively ended the informal filing system by which a veteran could initiate a claim -- and establish the start date -- simply by writing a letter of intent to do so. The VA says its new system also enables a veteran to reserve a start date before fully completing an application.

But NVLSP, the Legion, VFW, the Military Order of the Purple Heart, AMVETS and the Vietnam Veterans of America filed suit against the VA in March for going over to the new system.

Attorney Douglas J. Rosinski of Veterans Justice Group in Columbia, South Carolina, also filed a suit challenging the new system last November.

The other veterans named in the lawsuit requested their records in order to apply to the Physical Disability Board of Review for rating increases. One has been waiting about 20 months and the other nearly two years, according to the complaint.

The disability review board was established by Congress after it found that more than 77,000 injured soldiers, sailors, Marines and airmen separated because of injury or medical reasons between 2001 and 2009 "may have been lowballed on disability ratings by the military and, therefore, denied the benefits to which they were entitled," according to NVLSP and Public Citizen.

About 25 percent of veterans applying to the review board are awarded a higher disability rating and retirement benefits, they said.

-- Bryant Jordan can be reached at bryant.jordan@military.com.

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