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President Donald Trump signs Veterans Appeals Improvement and Modernization Act after making remarks to the National Convention of the American Legion in Reno, Nev., Aug. 23. (New York Times News Service)

In August, President Donald Trump signed the Veterans Appeals Improvement and Modernization Act of 2017. No law has brought more reform to the veteran benefit appeals system since the creation of the Court of Appeals for Veterans Claims in 1988. There is certainly need for reform of the appeals process. The number of appeals increased from approximately 375,000 in January 2015 to approximately 470,000 in March 2017 -- a 20 percent increase in little more than two years.

But the new law raises serious due process issues and procedural barriers acutely felt by homeless veterans. The maze of paperwork, medical appointments and follow-up is a challenge for homeless veterans without reliable access to transportation, computers, telephones or even a mailbox. The new law may have made that maze more complex and harsh. That's a bad thing for policymakers seeking to tackle California's growing homelessness crisis, especially when one in 10 homeless veterans in the U.S. live in Los Angeles County.

For starters, the new law significantly curtails the secretary of Veterans Affairs' "duty-to-assist." The secretary has a duty to assist veterans in obtaining all evidence necessary to substantiate a benefits claim. Given that most veterans are unrepresented, the duty-to-assist is the cornerstone of the non-adversarial nature of the veteran benefits adjudication system. In exchange, veterans give up discovery rights, the right-to-counsel and other procedural protections available in civil litigation. The veteran must rely on the secretary to gather evidence from military and other agency records (including health records) and his or her own sources.

Before the recent legislation, the secretary's duty-to-assist applied during the entire claim process, from the initial review to nearly all levels of administrative appeal, including the Board of Veterans Appeals. This created a continuous open record for the submission of evidence. The new legislation explicitly cuts off the duty-to-assist after the initial benefits decision. The effect is that if a veteran directs the VA to relevant evidence on appeal, the VA no longer has a duty to search for or procure such evidence. This is especially outrageous considering the VA is best situated to obtain evidence from medical records and to navigate complex bureaucracies like the Department of Defense. It is unrealistic and arguably cruel to force homeless veterans to solely assume this responsibility without assistance from the VA.

The new legislation also rolls back another key part of the non-adversarial bargain -- the continuous open record. Previously, the record for a benefit claim was continuously open, and the veteran had the right, and the VA was bound, to supplement the record during most stages of the administrative adjudication process. With the new law, Congress nearly eliminated the veterans' right to supplement the record after the VA's initial decision. Now, to seek review of an initial decision, a veteran has three options: higher-level review, in which a "higher-level adjudicator" at the agency reviews the decision; the traditional Board of Veterans Appeals route; or the filing of a supplemental claim.

The higher-level review option is essentially useless because the veteran is expressly prohibited from supplementing the record. At the appeals board, the rule now is that the board record is closed except for evidence submitted directly by the veteran at a hearing or within a limited 90-day window. This abridged right to supplement the record in these first two options has especially serious consequences for homeless and other vulnerable veterans. Advocates for homeless veterans have challenges securing evidence in a timely manner when working with clients, who are often transient, and suffering from mental health and co-occurring substance abuse disorders. The strict deadlines do not match the challenges of tracking down, building trust, and effectively working with this population. And if the advocate succeeds in developing a good working relationship with the client and learns of sources of new evidence on appeal after the deadline, the Board of Veterans Appeals is precluded from considering it.

Finally, there's the supplemental claim option. Supplemental claims have procedural shortcomings for homeless veterans. A supplemental claim requires that "new and relevant" evidence be "presented and secured." The secretary's duty-to-assist would apply in connection with a supplemental claim, but the window to submit new and relevant evidence under the new legislation is one year in order to preserve the effective date. For most homeless veterans, it is impractical to obtain such evidence by that deadline. Navigating complex bureaucracies to obtain records is difficult, especially when a veteran has no address and basic unmet needs. Even if a veteran manages to connect with the limited number of pro bono legal services in their community most will be well beyond the year of an original decision when they obtain legal counsel. Even when lawyers do get in the picture, a year is hardly enough time to "present and secure" such evidence considering the client's circumstances. Homeless veterans as clients are hard to stay in touch with, and the agencies typically containing new and relevant evidence -- the National Archives, VA Records Management Center, DoD -- necessitate a Freedom of Information Act or Privacy Act request, which can take many months.

In short, while the new appeals framework may help some veterans by accelerating the appeals process, the reality for homeless veterans is different. The reduced procedural protections, including the curtailment of the duty-to-assist, the near elimination of the open record policy, and the new deadlines, will likely present acute barriers for many homeless and vulnerable veterans.

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Ben Armistead

Daily Journal Staff Writer
ben_armistead@dailyjournal.com

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