Over a month ago it was learned that documents critical to veterans' claims were found in shredder bins at the Detroit Regional Office (VARO) of the Veterans' Benefits Administration (VBA), the benefits arm of the Department of Veterans' Affairs (VA).

As that probe by the VA's Office of Inspector General (VAOIG) widened to include other VAROs, multiple problems were discovered in the handling of veterans' documents.  Nearly 500 critical documents were found in shredder bins nationwide.  One VARO had 20,000 pieces of unopened mail.  A VARO chief was removed for computer tampering by "backdating" electronic file entries.  Any of the above actions could have resulted in veterans' claims being delayed or denied.

Veterans' service organizations (VSOs) began clambering for action and Members of Congress promised investigations.  The VA had to move quickly to placate the VSOs and their millions of members.  And, they had to be able to give something to Congress showing that they were controlling the issue of mishandled documents while, at the same time, seeking a resolution for veterans whose claims may have been incorrectly adjudicated because of "lost" paperwork.

On Friday, November 14, 2008, VBA issued Fast Letter 08-41 to all 57 VAROs across the country.  The Fast Letter (FL) (an internal document dictating policy changes) is titled, "Special Temporary Procedures in Response to October 2008 Records Incident."  The stated purpose of the FL is to provide "… information and guidance on handling assertions from claimants and veterans' representatives that a claim or evidence was previously submitted … and not properly retained and considered."

Like any VA regulation, all 17 pages of the FL are laced with legalese which tends to obfuscate the simple message:  The temporary VA rule will allow some veterans to re-open claims where the vet says "lost" paperwork affected the decision.  The three main criteria that will allow veterans to re-open a claim are:  "1. There is no record the claim was received by VA.  2. The claim was previously submitted, however it was adjudicated based on a resubmission at a later date (i.e., constitutes a duplicate claim) because the first submittal was not retained.  3. The claim was considered by VA based on an incomplete record because the supporting evidence or information was not added to the record."

But, as with any VA rule, there's a catch.  The temporary rule only covers an 18-month window that is described as "… claims or evidence submitted between April 14, 2007, and October 14, 2008."  And the veteran only has one year to apply to get a claim re-opened.  The VA publicly announced their new rule on Monday, November 17, 2008 and will accept applications to re-open a claim until November 17, 2009. 

Some attorneys who practice veterans' law are already crying foul.  One vets' attorney, after seeing the rule, blogged, "There is no justification to exclude veterans whose records were destroyed prior to April 2007.  There is no justification to require veterans to actively apply for special treatment … The VA ignores its own regulations which provide that a veteran's own testimony may support a claim.  This regulation is also contrary to VA regulations mandating that the veteran be given the benefit of the doubt."

Veterans' advocate Jim Strickland feels the rule is too little too late, and is encouraging all veterans who feel that their claim was decided without the VA accepting all evidence to re-open that claim.  And, he is telling vets to ignore the 18-month retro time frame.  Strickland said, "What about those who filed on April 13, 2007, or three years or 30 years before that?  What should they do?  They should file just like anyone else.  The April 14, 2007, date is absurd and the VA knows it.  This is a weak attempt to set an arbitrary cut-off date to minimize damage to the VA and it will not stand up to scrutiny."

Strickland's assertion that the date is "absurd" holds some weight.  VA Secretary James Peake makes it clear in a VA press release that "veterans not covered by these special rules who believe relevant material is missing from their files can submit additional documentation at any time."

Strickland urges veterans to use a simple letter to get their claim re-opened and suggests they use the following format:

DATE
ADDRESS OF REGIONAL OFFICE
REFERENCE (OR CLAIM) NUMBER(S)

Dear Sir/Madame;

(State a brief history of your case noting dates, the Regional Office where your case was adjudicated and why you believe that your documents may have been mishandled. Keep it brief, keep it courteous and keep it professional.

Then tell them you are asking for consideration under the temporary special claims handling procedures in response to the 2008 records incident and cite VBA Fast Letter 08-41.)

Close your letter.
Sign it.

While this temporary rule may go through some changes in the coming months, advocates and attorneys are urging veterans not to wait, but to re-open their claim(s) immediately if they feel paperwork or evidence was "lost" or not included in the claim record.

The VA will present this temporary rule to the House Committee on Veterans' Affairs at a roundtable discussion on Wednesday, November 19, 2008.  The roundtable will be led by Committee Chairman Bob Filner (D-CA).  Filner is a vocal critic of VA bungling and, when told of documents found in shredder bins, said, "These guys remind me of the Keystone Cops!"  Filner announced his roundtable would be titled:  "Shredding Our Confidence in the VA."