Foi Battle

Article excerpt

VA attempts to stonewall benefits probe; shoddy veteran treatment found in records

The admonition from Abraham Lincoln is emblazoned on the wall of the U.S. Department of Veterans Affairs: "...to care for him who shall have borne the battle, and for his widow and his orphan.

It is the core promise in our nation's contract with its military men and women. But how well is America serving its disabled veterans?

While the VA pays more than $20 billion a year in disability compensation benefits, as many as 572,000 veterans may be missing out on payments because they are unaware they are eligible or have not applied, our analysis of VA data found for a July 2004 article. In addition, veterans in some states were twice as likely to be on the VA's rolls as those who live elsewhere.

In March 2005, we reported that veterans nationwide are being shortchanged in the claims process, doomed to suffer lengthy delays, wrongful denials and inconsistent rulings. Over the last decade, delays were so extreme that 13,700 veterans died waiting for claims to be resolved. Meanwhile, the VA's network of accredited claims preparers is little more than a patchwork of well-meaning helpers who vary widely in training and expertise.

As we set out to uncover these problems, the VA went to extraordinary lengths to keep its operations secret. In the end, we filed a Freedom of Information Act lawsuit. Our legal battles with the VA have been cited in Congress as an example of how federal agencies can thwart the public's legitimate access to documents, then exploit a recent Supreme Court ruling to potentially avoid paying legal fees when a requestor is forced to sue.

Subjective disabilities

From our early reporting, we knew that veterans' advocates worried that claims delays took so long that veterans died in the process. But how often did that happen? Likewise, advocates complained that vets in some states got more money, on average, than those in others. The state-by-state rankings were easily accessible in VA's annual reports, but nobody had ever determined why payments varied so widely.

A series of VA databases, most obtained only after protracted negotiations and our lawsuit, helped address the questions.

One database of pending claims allowed us to determine how long veterans waited to have their initial claims decided. It was far longer than the VA itself said was acceptable.

The real delays, however, were in the appeals process. By analyzing a database of more than 300,000 veterans' appeals and comparing the date a case was entered into the system to the date it was decided, we determined that average delays were nearly three years - and were virtually unchanged in the previous decade, despite VA's pledges to reduce them.

Beyond that, most cases were merely returned to the VA's regional office for another hearing. So, by going through multiple appeals, many veterans actually wait 10 or more years for a decision.

We analyzed the issue of regional office variation from several angles, including delays, decision errors, and veteran satisfaction with the process. All varied widely.

The VA's primary claims database helped show why veterans in some states were far more likely to have big checks than those in others. That database included information on each of the 2.5 million veterans collecting monthly disability checks. Most important: It detailed a code for each veteran's disability (such as for "post-traumatic stress disorder") and the VA's "rating" for the disability (ratings go from 0 to 100; the higher the rating, the bigger the check).

What we found was that the more subjective the disability - the prime example being the mental disorder PTSD - the wider the swing. So, veterans in some states were three times as likely to have the highest rating for PTSD as those in others.

Given the VA's massive bureaucracy and confusing claims rules, we wanted to know how much help veterans received during the claims process.

By looking at data from the VA's annual veterans' satisfaction survey, www.vba.va.gov/surveys/isrscp.htm, we found that nearly two-thirds of veterans turn to what are supposed to be expert claims helpers, called "veterans service officers," who are accredited by the VA. They work for nonprofit groups, such as the American Legion and Disabled American Veterans, as well as for county and state veterans' agencies.

The VA repeatedly denied our requests to look at the regulatory files on these politically powerful veterans groups, saying among other things that they feared the charities would sue if the information was released. They also denied access to records relating to disciplinary actions taken against service officers.

Consistent denials

After we sued, the VA released tens of thousands of pages of records that revealed that most veterans groups had not submitted detailed information about their service-officer training programs in decades.

To determine the current training and oversight of service officers, we surveyed each of the 14 nonprofit veterans groups that handle the most claims and every state veterans department. We were able to get data from 33 state agencies and 13 of the nonprofits.

To tell the human toll of the VA's bureaucracy we researched the cases of dozens of veterans.

State and county veterans agencies, local veterans groups and the veterans' legal bar, www.vetapp.gov/Practitioners/default.asp, were helpful in identifying potential cases. We also searched the complete text of veterans' appeals decisions at two levels: the Board of Veterans Appeals, www.va.gov/vbs/bva, which doesn't include the veteran's name but sometimes lists a lawyer or representative; and the higher Court of Appeals for Veterans Claims, www.vetapp.gov.

Obtaining access to the veterans' individual VA compensation claims files was crucial. If the case was years into the appeals process, the veteran's attorney usually had a copy of the file we could review.

In other cases, we had to file a Privacy Act request, along with a signed release from the veteran, to look at claims files at VA regional offices. To look at VA files and to allow VA officials to comment on individual cases, we had veterans sign a VA Form 3288, consenting to the release of information from their records. The form is available online at www.va.gov/vaforms/. We also obtained veterans' military service records from the National Personnel Records Center, www.archives.gov/facilities/mo/st_louis/military_personnel_records.html.

Extracting information from the VA was a major challenge. The agency's public affairs staff routinely ignored, or dragged out over months, requests for even the most basic information. In some cases, they said they were reluctant to answer questions because they feared doing so would provide a roadmap for filing FOI requests.

We generally tried to get information without filing a formal request. If the VA public affairs staff indicated they might release something, we held off filing a FOI. But too often, we found the agency was just stringing us along.

Beginning in March 2004, we filed the first of dozens of FOI requests and appeals for data and documents. We quickly learned the VA has several separate FOIA offices. File with the wrong one and your request will languish for months without a number and without the FOI time clock running. By transferring our requests between various offices, the agency managed to claim that requests moldering in their offices for months were - in their view of the world - processed in just a day or two.

When it finally responded, the VA issued blanket denials of requests based on spurious exemptions. Administrative appeals went unaddressed. The agency refused to segregate nonexempt information. In one case, the VA tried to charge more than $41,000 to copy 11,000 files just to obtain the records of the two individuals who had their service-officer accreditation revoked. The VA refused to even describe what kinds of records were kept in its databases.

After months of delays and repeated denials of our FOIs, we sued the agency in November 2004 in federal court in the District of Columbia.

By mid-February, the VA had released to us essentially all of the records we had originally requested. But problems continue with our pending requests.

FOIA concerns

Our legal battles are ongoing. Currently, we have motions pending that would reform the way the VA processes FOI requests. Among other things. Knight Ridder's motions would compel the VA to respond to each FOI request within the times mandated by law; provide access to FOIA reading rooms listed on its Web site (our visits to VA offices found they don't exist); and provide annual FOIA training for its employees.

While it is still early, our ongoing reports have already prompted two pieces of legislation in Congress and a VA investigation into the adequacy of service officer training. The VA's Undersecretary for Benefits has sent a memo to the agency's regional offices instructing top officials to "read the articles, digest the underlying message and then take action..."

In recent testimony before a House Government Reform subcommittee, U.S. Sen. John Cornyn (R-Texas) cited Knight Ridder's legal battles with the VA as an example of why the FOIA needs to be strengthened by the Open Government Act (H.R. 867 and S. 394).

The legislation, among other things, would reverse the effects of a Supreme Court ruling that now makes it possible for government agencies to avoid paying legal fees in FOIA cases. In the case, Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 605 (2001), the court held that a party does not have to pay the other party's attorney fees if the defendant gives the plaintiff essentially everything they want prior to a court judgment.

The decision, in theory, allows an agency to refuse to release documents. Then, after the requestor incurs the expense of filing a FOIA lawsuit, the agency can release all the documents before the court makes a ruling and claim the plaintiff is not entitled to attorney fees.

[Author Affiliation]

BY CHRIS ADAMS AND ALISON YOUNG

KNIGHT RIDDER WASHINGTON BUREAU

[Author Affiliation]

Chris Adams and Alison Young are reporters for Knight Ridder's recently formed Washington, D.C.-based investigative team.