By Gordon Siu.
In recognition of their sacrifices, the United States provides monthly compensation to veterans who incur a disability connected to their active-duty military service during a congressionally defined period of war. These benefits are managed by the Department of Veterans Affairs (“VA”). The VA maintains a claims file (known as a “C-File”) on every veteran who files a claim for VA benefits. The C-File contains the evidence that the VA considered in granting or denying benefits, such as reports of medical exams ordered by the VA to determine eligibility for VA benefits. Careful review of the C-File is crucial to effective advocacy before the VA regarding a veteran’s claims.
Veterans cannot get their C-Files in a timely manner
Despite its importance, the VA doesn’t make it easy for veterans to get a copy of their own C-File. In fact, the VA doesn’t even make it clear how veterans are supposed to ask for it. One of the most effective ways for a veteran to obtain his C-File is through the Freedom of Information Act (“FOIA”). FOIA requires federal agencies to produce documents within its possession unless they fall under one of nine statutory exemptions. It also requires the agency to make a determination within 20 working days about whether it will produce the documents, barring unusual circumstances. If an agency doesn’t comply with FOIA’s time limits, improperly withholds requested documents, or otherwise violates FOIA, the requester may sue in a United States District Court.
Despite FOIA’s requirements, the VA often fails to produce the veteran’s C-File in a timely manner. It may take months, even close to a year, for the VA to give the veteran his C-File. In the past eight years, the VA and its officers and employees have been sued at least 32 times in federal district court by veterans or their attorneys for alleged failures to comply with FOIA’s time limits to respond to a request for a copy of the veteran’s C-File, or parts of the C-File. With these long delays, a veteran may have to file an appeal without seeing all of the evidence the VA relied upon when denying his claim. He’s left fighting his denial in the dark.
The VA is already capable of providing remote access to veterans’ C-Files
One solution to these delays is for the VA to simply give veterans online access to their own C-Files. After VA employees were caught shredding veterans’ claims documents instead of processing them, prompting a congressional hearing in 2009, the VA moved to digitize its C-Files. The VA’s modern C-Files are now electronic and stored within a web-based system called the Veterans Benefits Management System (“VBMS”). The VA currently grants certain accredited attorneys and claims agents remote access to VBMS, allowing them to view veterans’ C-Files in real-time. Thus, the VA will give a veteran’s accredited representative (if he hires one) remote access to his C-File, but it won’t give that access to the veteran himself. Veterans shouldn’t have to hire anyone to be able to find out what’s going on with their own claim.
Recently, the VA has moved to reduce access to VBMS even further by promulgating regulations that prohibit accredited attorneys from allowing their unaccredited paralegals and other support staff to use their VBMS access. The VA touted it as a move to safeguard the confidentiality of veterans’ private information. But under the ABA Model Rules of Professional Responsibility, attorneys are already responsible for the conduct of their support staff in connection with the cases they work on. It also makes litigating a veteran’s claim more expensive; either a firm’s support staff needs to go through a year-long accreditation process, or an accredited attorney needs to sift through mountains of digital claims records herself.
Congress should require the VA to extend remote access to C-Files to veterans themselves
In the past 20 years, the VA’s budget has grown nearly 600%, from about $45 billion in 2001 to a requested $270 billion for next fiscal year—giving it the second-largest budget in the entire federal government. As America ends its longest war, there has been no shortage of support from Congress for our Nation’s veterans. For example, it recently passed legislation, with 317 co-sponsors in the House, requiring the VA to launch a pilot program to provide service dogs to veterans suffering from PTSD—over the VA’s objection. And when the VA was caught hiding long wait times at its Phoenix hospital, Congress required the VA to pay for veterans to see private care in the community.
The VA already has the technical infrastructure to support remote access to C-Files stored in VBMS. It’s time for Congress to require the VA to give veterans remote access to their own claims records.
