Released 2/9/21 | Tags:
NVLSP Class Action Challenges VA Refusal to Provide Over One Million Veterans With Paper Application Forms Needed To Start A Benefits Claim
VA Ignores Legal Requirement To Mail Forms to Veteran’s Home, and Instructs Veterans To Find Forms Online Instead
The Elderly, Poor, Minorities and Rural Veterans Without Internet Access Are Most Affected
FOR IMMEDIATE RELEASE: February 9, 2021
WASHINGTON- On Feb. 9, 2021, the National Veterans Legal Services Program (NVLSP), together with pro bono counsel Covington & Burling LLP, filed a class action lawsuit in the U. S. Court of Appeals for Veterans Claims (CAVC) accusing the U.S. Department of Veterans Affairs (VA) of failing to comply with its legal obligation to mail the official VA paper application forms that must be used to start a benefits claim to veterans and survivors who inform VA that they wish to apply for benefits. The lawsuit asserts that ever since 2015, when VA began to require use of an official VA form to start a benefits claim, the VA has been mailing those who want to file a claim a template letter informing them where to find the official forms on the VA’s website, without enclosing a paper copy of the forms in the envelope. As a result, NVLSP asserts that the VA failed to mail forms to more than one million veterans and their survivors.
The lawsuit states that the people most harmed by the VA policy to withhold a paper copy of the needed application form are the elderly, poor, minorities, and rural veterans without internet access. In the filing, NVLSP represents petitioner Nyna S. Murray, an 88-year-old widow of a World War II veteran, who is a stroke survivor, partially paralyzed, and unable to drive or use a computer. In February 2020, Mrs. Murray informed VA that she wished to file a claim for survivors benefits. But instead of furnishing Mrs. Murray the official application forms, the VA sent Mrs. Murray a template letter stating: “[VA] will take no further action until [it] receive[s] your completed application. To locate the appropriate form(s), please visit the following website: www.va.gov/vaforms.” The template letter was not accompanied by any forms. Mrs. Murray seeks to represent the many similarly situated individuals, who like her, received these template letters but not the proper application forms.
The lawsuit explains that “According to 38 U.S.C. § 5102(a), “[u]pon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit,” the Secretary “shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit.” The lawsuit asserts that “the Secretary’s policy and practice does not comply with the statute and regulations. The plain meaning of ‘furnish’ requires the Secretary to deliver actual forms to claimants—not just instructions on how to obtain the forms."
“It is unconscionable that the VA has been placing obstacles for veterans, especially older veterans, and their families who wish to access vital VA benefits, especially during this pandemic. Indeed, the VA’s refusal to take the simple step of mailing the necessary forms flies in the face of the law. We hope the Court will move expeditiously to put an end to this unlawful practice and compel the VA to send the correct forms to the veterans and surviving family members who were mailed instructions to go online to get the forms, without enclosing the forms themselves,” said National Veterans Legal Services Program Executive Director Bart Stichman.
NVLSP’s lawsuit seeks corrective measures from the Court including:
• To declare that the Secretary’s failure to send the proposed Class members paper copies of the application forms violates the Secretary’s duty under 38 U.S.C. § 5102(a), and VA regulations 38 C.F.R. §§ 3.155 and 3.150, in response to requests for an application and submissions of an intent to file a claim for benefits.
• To order the VA to mail the appropriate application forms to Petitioner and all applicable current Class members within 30 days of the Court’s order, and to mail such forms to future Class members promptly upon the VA’s receipt of a request for an application or an intent to file a claim for benefits.
In 2013, the VA began a rulemaking process that proposed, among other things, amendments to 38 C.F.R. § 3.155 to “eliminate the concept of an ‘informal’ claim” and “incentivize electronic submissions over paper submissions.” VA proposed a framework that would, in effect, allow claims filed electronically on VA’s website to, if the claim was ultimately granted, receive up to one year of retroactive benefits more than would similarly situated successful claims that were submitted on paper. At the time of the proposed revision to the § 3.155 to favor electronic submissions, the Secretary received numerous complaints that favoring electronic submissions would deny access to veterans or survivors who did not have ready access to the Internet. NVLSP was among the groups who argued against the change noting “negative impact by the two-tiered system will be borne on identifiable groups, namely, the elderly, the poor, and minorities.” As a result, the Secretary agreed not to favor those who submitted claims electronically over those who submitted on paper. The policy requiring use of official VA application forms to start a claim for benefits has been in effect since March 24, 2015.
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1980. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.
For NVLSP: Patty Briotta, office 202-621-5698, firstname.lastname@example.org