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Law Practice,
Health Care & Hospital Law,

Jun. 21, 2018

VA's failure to provide adequate notice prolongs homelessness

Other government agencies provide notice to attorneys -- why can't the VA?

Mahoney kara web

Kara Mahoney

Directing Attorney, Inner City Law Center


Kara is the acting director of the Homeless Veterans Project at Inner City Law Center where she represents veterans experiencing chronic homelessness. She specializes in working with survivors of military sexual violence and veterans with complex mental health disabilities to stabilize their income, healthcare, and housing.

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Amanda Powell

Staff Attorney, Inner City Law Center

Amanda works with the Homeless Veterans Project at Inner City Law Center

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On any given night in the United States, 40,056 military veterans experience homelessness. Los Angeles accounts for 4,476 of those veterans, rendering the city the homeless veterans capital of the nation. For many of these veterans, the pathway out of homelessness involves qualifying for VA benefits. Not surprisingly, many homeless veterans lack a stable address where they can receive mail. In most other legal proceedings, protections are in place to ensure that a client's lawyer receives any documents that carry legal effect. Unfortunately, those protections do not exist in one particular aspect of VA disability benefits claims. They can and they should.

Consider Michelle, a veteran with post-traumatic stress living in her car. Michelle enlisted in the Army at age 19 to continue in her family's tradition of service. During boot camp, Michelle was sexually assaulted by her commanding officer. Disgusted and humiliated, Michelle started using marijuana. She also went AWOL for a few days in order to avoid contact with her assailant. Less than a year into service, Michelle was discharged from the Army for drug use and her dreams of a military career were ruined. Michelle isolated from her family and friends, she could not hold a job due to her anxiety and distrust of authority, and she fell into homelessness. With the help of a legal aid attorney, Michelle applied for VA benefits so she could obtain VA healthcare and compensation.

Despite Michelle having an attorney of record, the VA did not notify her attorney that Michelle had been scheduled for an exam necessary to make a determination on her VA benefits claim. Michelle never received notice of the exam, and her claim was denied because she failed to appear for the exam that neither she nor her attorney knew about. For veterans like Michelle who are dealing with poverty and health issues, the idea that their attorney will not receive information pertaining to their case is distressing and can be fatal to the case's outcome. The situation also frustrates attorneys, who are unable to provide representation during a crucial step of the VA benefits process.

Veterans who file claims for VA disability benefits need medical evidence to diagnose and assess the severity of their current conditions. The VA has a duty to assist veterans filing for benefits, including by providing a medical examination known as a Compensation & Pension examination. However, there is no written policy that dictates the required procedures for notifying a claimant of a scheduled examination. Kyhn v. Shinseki, 24 Vet. App. 228, 234 (2011). Nevertheless, the VA argues their process is so regular that if a veteran misses an exam, her claim can be outright denied. Id.; see also Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).

The presumption of regularity, which attaches to all manner of VA processes and procedures, holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). In practice, regularity for Compensation & Pension exams proceeds as follows, according to the VA Adjudication Procedures Manual (M-21-1):

(1) The VA will send a request for an examination to be scheduled to medical centers, examining facilities, and private examination contractors.

(2) The request includes the veteran's information, claimed disabilities, name and address of the veteran's representative (if applicable), and closest VA medical center to the veteran.

(3) The medical centers, examining facilities, or private examination contractors will schedule the appropriate examination.

Although the VA includes contact information for the veteran's representative in their request to schedule an exam -- presumably to provide notification of the scheduled examination -- the representative is not provided notice. This is a major issue for veterans experiencing homelessness who may not have regular access to mail, email or voicemail.

Because the sanction for missing an exam is the denial of a veteran's claim, the VA should provide veterans and their legal representatives with notice. This is routine in most legal settings. Other government agencies successfully provide examination notices to attorneys who represent clients seeking public benefits: the Social Security Administration, for example, sends appointment notices for consultative examinations to benefits claimants and their appointed representatives. See SSA - POMS: DI 22510.016C.

Lawyers representing homeless veterans are often in much closer contact with their clients than the VA is. When notice is not provided to representatives, there is significantly less chance that homeless veterans will receive notice of a scheduled examination. The consequence for missing examinations is dire -- denial of benefits claims. Homeless veterans suffer the most from the VA's failure to provide notice to representatives because obtaining VA benefits can be the pathway to stable housing, healthcare, and income. There is too much at stake for vulnerable veterans to base their entire claim on having regular access to a personal mailbox. It would not be difficult or costly to send an additional notification to veterans' representatives. This is a simple fix that the VA must address in order to prevent veterans from remaining trapped in homelessness.


Aditi Mukherji

Daily Journal Staff Writer

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