(Transcript)

Cindy Speaker:  Good afternoon, and welcome to this issue — this segment of Facebook Live.  My name is Cindy Speaker.  I have with me today, attorney Nathan Guin.  He’s going to talk with us about a very interesting issue in a court case that just happened, last week.  Nathan, thanks for being here today.

Nathan Guin: Thank you for having me.  I appreciate the opportunity to talk about such a timely and relevant topic for our veterans.

Cindy Speaker: Yeah, well I enjoyed you last time, and you — This whole issue about veteran’s law is very interesting, even to someone that does not specifically have a veteran in mind that this is relevant to.  It’s relevant to all of us, because we care so deeply about our veterans.

Nathan Guin: Yeah, absolutely.  It’s a subject that’s close to everybody’s heart, and something that we’re happy to help people with, and shed some light and information regarding VA benefits, people who may know veterans, or even if they don’t, just to give a little bit of insight as to what they’re going through on a daily basis.

Cindy Speaker: Right.  Well, we’re going to talk about a specific case.  I have some notes, here.  This is a recent court decision that was decided by the United States Courts of Appeal for the Federal Circuit, just last week.  How did this new decision come about?  Tell us a little bit about it, so we can kind of wrap our heads around what’s at stake, here.

Nathan Guin:  Okay.  Basically this case, and I’ll try to be as brief as possible, but there’s a lot of layers to it — benefits are quite the benefits, and had a field.  His initial rating decision for the timely filing of his notice of disagreements within that one year window.

Cindy Speaker:  Okay, so we got interrupted there. This is Cindy Speaker, I have Nathan Guin with me, an attorney with Gardberg & Kemmerly. We got cut off on Facebook, technology is sensitive, but you can pick up the first minute in the last segment on this page, on Facebook Live, and now Nathan’s going to continue in talking about this case and what it means. So go ahead and pick up there, Nathan.

Nathan Guin:  Yeah, I think we were talking about basically the veteran had appealed, Mr. Monk had appealed and that they are holding his new decision for his claim for disability benefits to wait for the personnel board to make a decision regarding his discharge upgrade. And so, the VA and that particular board work hand in hand, and so there’s really no need for the delay in Mr. Monk’s mind, and that’s his contention. So basically, what he did was filed what’s called a Writ of Mandamus to the Court of Appeals for Veteran’s Claims. Now, that’s something that individuals can do to try to basically force action on  the part of the VA, they can talk to or send a motion or writ to the Court of Appeals for Veteran’s Claims stating their case that they have exhausted all of their remedies. Basically, they’ve done everything they can and there’s undue delay and it’s an unreasonable withholding of the new decision, and that the VA should be compelled or at least give an argument as to why they haven’t issued that decision yet. So, he filed that with the Court of Appeals for Veteran’s Claims.

And, in addition to that, he also requested, and this is really where the case gets interesting. He requested that the Veteran’s Court certify a class, for a class action, or a similar aggregate resolution procedure. Basically, they can talk about similar cases all in one for veterans who had applied for VA benefits, had timely filed a Notice of Disagreement for an appeal, had not received a decision within 12 months, and had demonstrated medical or financial hardship as is defined by VA regulations. So, that’s kind of a different segment but there are ways to expedite your claims based on medical, severe illness, and also severe financial hardship. So that was the basis of his writ.

And so basically, the Court of Appeals for Veteran’s Claims, to get us to the federal circuit, Court of Appeals for Veteran’s Claims denied his writ and basically said they didn’t have the authority, they lacked the authority to hear such cases, they can’t hear class-action cases or aggregate resolution cases, which Mr. Monk then appealed to the Federal Circuit, which brings us to the now, which is the most recent decision from the Federal Circuit. Basically, to put as short and simple as possible, the Court of Appeals for Veteran’s Claims has all of the authority to hear class-action claims, to certify classes, to have a similar aggregate resolution proceeding, and essentially had just refused to do so because it seemed as if they just didn’t really want to. In fact, the Federal Circuit went as far as to say that the refusal to hear class-actions or aggregate proceedings was an abuse of discretion in their decision. So, it was a pretty powerful decision from the Federal Circuit and certainly something that I think will be helpful for our veterans going forward. But that’s kind of the case that brought it about, our way of background.

Cindy Speaker: Right. And talk a little bit about the implications for veterans going forward, and also when you talk about a class-action, will this simply be limited to situations where the veterans are looking to upgrade and go through the process that I believe Mr. Monk did, or is this relative to any type of veteran’s claim where they could potentially be handled as class-actions?

Nathan Guin: Okay, so for the first part of that question, really what it means is, that a lot of times everyone knows, I don’t think that it’s any secret that the VA suffers from an incredible backlog of cases. They take an enormous amount of time to get any decision back to veterans, no matter what stage of the process they’re in.

Cindy Speaker: How long do they typically take?

Nathan Guin:  Well, depending on where you’re at. So, if you put in a notice of disagreement, we’ve seen anywhere between a year and a half to two and a half years to get a statement of the case. And if you appeal a statement of the case to the Board of Veteran’s Appeals, you can either request a hearing or not. Even still, at that point, to get to the Board of Veteran’s Appeals decision or your hearing can take anywhere between two and a half to three years. And that fluctuates but the light fluctuation we’ve seen recently has been for longer time periods, longer wait periods. So, what this stands to do is, hopefully shorten those wait times.

Right now, the only kind of recourse you have for such a delay is what Mr. Monk did, which is file a Writ of Mandamus, which a lot of people, veterans representing themselves, they’re not going to know how to do that or maybe not even think that that’s an option. So, there’s just a lot of issues with that and it’s all individual, so it’s a case-by-case basis and the courts contention has been, for the longest time, that even if they’re similarly situated, all of the facts are different, therefore it’s not a common question. But that’s not what the Federal Circuit said so this should give the Court of Appeals for Veteran’s Claims the ability to handle larger amounts of cases in one fell swoop that are similar and get these people, the veterans, their resolution whether it’s positive or negative. And it’s not to guarantee that there’s going to be a grain of benefits, but they need to know if they need to appeal, they need to have some kind of resolution even if it’s negative. The waiting is really, from what I’ve seen with our veterans too, is the hardest part and by far and away the most frustrating.

Cindy Speaker:  Oh, I bet, I bet. So, tell us some of the specific types of cases that could be positively impacted here. I don’t know what types of claims are put forth.

Nathan Guin:  Right, so what we see the most, and really to give you a lawyer’s answer, it depends. So, this case basically just tells us that the court has that authority. The procedures and processes are not in place yet, that’s something that will be developing, that’s something we’re keeping a very close eye on to see, and try to get in to that ourselves you know. Once the processes are established, how can we help out our veterans by taking advantage of this? Generally speaking, the ones that we see the most, and I’ve got a couple of notes here, when we see the most delays is with concurrent retirement disability pay. So those are people who are getting retirement pay from the military and disability and there’s coordination between different departments, which usually is lengthy and takes a really long time because there’s different requirements for how you get that concurrent pay.

Additionally, adding dependent spouses and children to a veteran’s 30% service connected or above, they can add a spouse or a dependent who is under the age of 18 or basically under their care, and get additional money for those dependents. Those are things that, if you have 30% and you can prove that you’re related should be granted, but you still have to wait sometimes. And those are a little bit quicker depending on what regional office you’re working with, but that still takes half a year to a year at the least a lot of the times. We also see it with veterans of advanced age, so you can request expedited consideration for those, but the rules for that are very strict and the ages are kind of extreme, so we see a lot of delays there. And then also claims that have been remanded by the Board of Veteran’s Appeals. So if there needs to be more evidence, hearing development, or more examinations, medical examinations.

Those are supposed to be done, the examinations are supposed to be done within 90 days of the remand order and we see people go in, you know, veterans go in six months to a year, and we’re doing everything we can to get these things scheduled, and you know they just take them forever to do it.

So that’s where we see the most delay but the delay is pretty much across the board.

Cindy Speaker:  So what will the process be? Will they take existing cases and potentially put them in to similar classes? Or is this only for veterans that have yet to actually file for disability?

Nathan Guin:  That’s a really good question. Whether or not it’s going to be, I imagine it could be retroactive and that means that the claims have been dealt with and there’s been some resolution. I would imagine, and like I said the processes have not been set up yet, I’d imagine that these kind of processes will be open to any and all veterans who have already filed claims. You know, Mr. Monk’s case, he had filed an appeal and the whole basis of his class was veterans who had already filed appeals. So, and in that context is where the Federal Circuit decided that the Court of Appeals for Veteran’s Claims has the authority to heat class-action suits so I think that existing claims would fall under that. How they will certify those classes and how they’ll be kind of classified and arranged is yet to be seen, but like I said something we’re keeping a close eye on, but it’s going to be very interesting because they’re basically making this all from scratch.

Cindy Speaker:  Yeah, yeah. Well, for those that are watching or those that watch this on demand later, I’m sure the Gardberg & Kemmerly will be on the forefront of this, as you said they’ll be watching it and my guess is that you will handle, if the classes develop and that becomes a potentiality, I assume you will probably handle some of those class-actions yourselves.

Nathan Guin:  Absolutely. That is something that we are currently looking in to and making sure that we’re keeping up with all of the developments so that we are prepared to take on any new responsibilities and any new challenges that come with class-action cases and aggregate claims. We certainly have a number of veterans that seem to meet the requirements and Mr. Monk, you know the class that he’s, you know, suggested being certified so I think that we certainly have got a lot of people who could take advantage of that process to begin with, so definitely something we’re looking to take advantage of to help our veterans out.

Cindy Speaker:  Yeah, yeah. Yeah, when you talk about the time that it takes to get through the system, it’s really almost unforgivable on the part of the VA that it takes that long. Are there any other potential solutions other than the class-action that you see?

Nathan Guin:  Yeah, and this is something that Mr. Kemmerly have talked about and our whole office really, about different solutions. Because while this is a big step in the right direction, there does seem to be kind of a common sense, easier to way to deal with things and whether that could be implemented, you know the pitfalls of that may be I’m not really sure. But on it’s face it would seem that, you know the veterans bear all the burden when it comes to these kinds of claims, when they appeal and they get a decision back, they’re under a time limit whether it’s one year, 60 days, 120 days, depending on what stage of the process they’re at. And if they don’t get the appeal in by that time, well they’re claim is just dismissed and they’re forced to refile and to re-open a claim is just a difficulty in and of itself, and something that I would not want anyone to have to do unnecessarily.

And so really, it would seem that the easiest way, in terms of equity and just getting resolution more quickly would be for the VA to have timelines implemented on themselves. And I understand they have a lot of claims, you could even make it flexible for different, you know, whatever process you’re up for a Notice of Disagreement. You know, give the VA x amount of time to get a decision out. I guess, I think would be, or an issue would be that, what would the penalty be if they didn’t? But at the same time, there would still be a penalty, there’d be some kind of procedure to it. And it just seems like if you’re going to hold the veterans accountable with these time limits and give them these short periods of time to produce all of this evidence and produce their arguments, it seems like it should work both ways.

Maybe that’s a little bit too easy to be true but that’s certainly something that we wish they would do around here because that would make everyone, it would make the veterans lives a lot easier and you know, a lot of times, they’re not upset necessarily. Obviously they’re disappointed when a claim gets denied, but it’s the waiting and the not knowing that if they’re going to get denied and if they do happen to wait two or three years to get that denial, it’s really the most frustrating part is just the not knowing. And really the feeling as if they just don’t care about getting it back to them, these people have lives to lead too and the veterans, you know, they don’t want to be waiting around for two or three years to get a decision. Like all of us, they want some kind of resolution so that they can move forward with it, whether that be with an appeal or say, “Okay, I gave it my go”, and even if they don’t want to pursue it, it’s one less thing that they have to worry about.

Cindy Speaker:  Yeah, yeah. Nathan, great information, I appreciate it.

Nathan Guin:  Thank you very much, hopefully it was helpful!

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