December 30, 2013 Mr. Robert C.

McFetridge, Director Regulations Management (02REG) Department of Veterans Affairs 810 Vermont Avenue NW, Room 1068 Washington, DC 20420 Comments on RIN 2900-AO81, Standard Claims and Appeal Forms Dear Mr. McFetridge: Bergmann & Moore, LLC submits our comments in response to a proposed regulation published by the Department of Veterans Affairs (VA) in the Federal Register on October 31, 2013, mandating the use of pre-printed VA forms to file VA disability benefit claims and to appeal VA claim rating decisions. Bergmann & Moore Opposes VAs Change VAs stated goals of increased efficiency, speed, and quality are recognized. However, VAs proposed rule-making seeks to reach those goals by essentially raising the bar to VA benefits, undermining decades of well-established pro-Veteran disability law. We strongly oppose VAs proposed change and ask that VA withdraw the proposed regulation. We respectfully reject VAs proposed rule on the grounds that it will likely delay and/or deny VA disability benefits for hundreds of thousands of Veterans and beneficiaries (collectively referred to as Veterans) each year. And, by extension, VAs change will likely delay and/or deny urgently needed VA healthcare to Veterans who would be otherwise be granted VA service-connected disability benefits if VAs rules remained unchanged. In order to maintain a Veteran-friendly claims system, Veterans must be able to continue filing informal claims for VA disability benefits that VA must adjudicate, without using a standardized, pre-printed VA form. Similarly, Veterans should be able to continue sending written statements to VA that disagree with VA claim decisions that VA must consider as a Notice of Disagreement (NOD), again, without using a standardized, pre-printed VA form.

VAs harmful, arbitrary, and capricious proposal undermines or erases a long history of Congressional intent and Court decisions favorable to our Veterans. VAs proposal transfers nearly all of the burden of applying for VA benefits and appealing VA disability claim decisions from VA to our nations Veterans who often dont understand the complexities and intricacies of VA law. Additional burdens are created for Veterans because they would be required to perform significant legal work before they are allowed to hire an attorney to help them with an appeal. Conversely, VAs procedural change is highly beneficial for VA, and VAs change appears focused heavily, if not exclusively, on eliminating VAs backlog of nearly 1.4 million new, appealed, dependency, and accrued claims now overwhelming the agency. As demonstrated by 78 benefit inspections of VA Regional Offices performed by VAs Office of the Inspector General (VA OIG) since 2009, VAs claim backlog was caused, in part, by VAs admitted chronic understaffing, poor training, and a lack of planning to handle increases in disability compensation claims filed by Veterans after military service, especially those who served during war. (See VA OIG: http://www.va.gov/oig/apps/info/OversightReports.aspx VAs Proposal Mandates Use of Pre-Printed VA Forms to File and to Appeal VAs proposed rule seeks to dramatically change how Veterans file and appeal disability claims: VA proposes to amend 38 Code of Federal Regulations parts 3, 19, and 20. The proposed amendments would require the use of standard forms to initiate claims for benefits and to initiate appeals of Agency of Original Jurisdiction (AOJ) decisions on those claims. (Federal Register, Page 65490) VA proposes to eliminate the concept an informal claim. (Page 65490) VA generally would preclude claimants from initiating claims and appeals through non-standard means. (Page 65491) VA will not accept a document or communication in any other format as a Notice of Disagreement (NOD). (Page 65499)

VAs pre-printed NOD form requires Veterans to provide specific reasons why the Veteran disagrees by using VAs Form 21-0958. For example, in order to appeal, a Veteran must answer a series of highly technical questions about VAs claim decision: In the Specific Issue of Disagreement column in Item 15, please individually identify in separate boxes each of the issues you disagree with. For example, left knee condition, hearing loss, etc. In the "Area of Disagreement" column, Item 15B, please check the area for which you disagree. For example, if you disagree with the effective date that VA assigned for a particular benefit, check the "Effective Date of Award" option. If VA granted a benefit, but you disagree with the evaluation that we assigned, check the "Evaluation of Disability" option. If you were claiming service connection for an injury or disability that you believe to be the result of your military service, and VA denied that claim, please check the "Service Connection" option. If you are disagreeing with our decision for reasons other than listed in the "Area of Disagreement" column, please check "Other" and specify your reason. If you disagree with a disability evaluation that we have assigned and believe that the evidence justifies a specific evaluation, please list the percentage that you believe the evidence to warrant in the "Percentage of Evaluation Sought If Known" column, Item 15C, within Part III of the form. To assist, please refer to our decision notification letter where we indicate what the evidence must show for the evaluation we assigned as well as the next higher evaluation. There is extra space provided for you to explain why you feel we incorrectly decided your claim, and to list any disagreements not covered by the form. Please utilize this space to briefly and clearly explain why you disagree with our decision.

VAs Proposed Rule is Substantive VAs proposed procedural change is substantive because VA proposes to mandate the use of pre-printed VA claim forms and thereby eliminate informal claims. Informal claims arise under several conditions, such as when a Veteran uses a manner other than an existing VA claim form (VA Form 21-526 and variants). For example, a Veteran may inform VA via letter or medical records for the first time about a new disability, the worsening of an existing disability, hospitalization for an existing disability, a condition that is secondary to an existing disability, unemployability, or other change. Veterans seeking Special Monthly Compensation (SMC) or Individual Unemployability (IU) face additional VA burdens. Unless a Veteran has a representative or extensive legal training about VA claims, then a Veteran may not apply for SMC or IU on the initial claim or in a timely and complete manner. Thus, VA will not consider SMC or IU, thereby depriving the Veteran of substantial amounts of VA compensation a Veteran would otherwise be entitled to under existing VA regulations. Under VAs proposed rule, VA seeks to force Veterans to become medical experts in order to file a disability claim. VAs new standard to file a claim is unduly onerous, especially for vulnerable Veterans: elderly Veterans, Veterans with a limited education, Veterans who are homeless, or Veterans with traumatic brain injury (TBI), posttraumatic stress disorder (PTSD), or any other medical condition that may impact cognition or mental health. VAs change is substantive because VA proposes to reject all disagreements with a VA claim decision simply because they are not submitted on VAs pre-printed NOD form. In place of the current VA rule that places an appropriately low burden on a Veteran, VA seeks to mandate that all Veterans, regardless of the presence of a Veteran Service Organization or counsel, describe in great detail the reasons for their appeal, effectively making the claimant act as an attorney. VAs burden falls considerably under the proposed rule, especially 38 CFR 3.155(c). VA mandates that Veterans use a pre-printed form to apply and to appeal. However, in the event a Veteran submits an incomplete application (or one not on VAs form), VAs only obligation is very narrow in scope: Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. (Page 65507)

VAs proposed regulation does not require that VA send a Veteran (and representative, if any) a blank, pre-printed disability claim form, either by surface mail or by electronic mail. Further, VA proposed rule does not require VA to inform the Veteran of VA s Duty to Assist. (See 38 U.S.C. 5102-5103A, 5107) VAs proposed regulation does not mandate a time frame (i.e., the number of days) wherein VA must notify the Veteran of the incomplete claim. Given the adversarial nature of VAs proposed rule combined with VA historically long claim completion times averaging more than nine months, VA could easily wait months or longer to notify the Veteran, thus unjustly depriving the Veteran of both VA disability compensation and VA healthcare. (See Monday Morning Workload Report, where VAs average days to complete was 279 days as of December 23, 2013) A lack of service connection, especially at the 100 percent level, often deprives a Veteran of important state benefits. In many states, such as Texas, a Veteran (or a surviving widow), is eligible for significant property tax reductions. Therefore, preventing, delaying, or denying Federal VA benefits significantly also impacts Veterans at seeking state benefits. VAs Proposed Rule Unfairly and Improperly Discriminates VA intends that Veterans who file incomplete paper claims be treated in a discriminatory manner when compared with other Veterans, in effect creating two classes of claims when there is currently only one. (Page 65507) VA intends to provide Veterans who file incomplete computerized claims an additional year to submit additional documents to complete the claim and preserve the effective date of the claim. In contrast, VA will discriminate against Veterans who file incomplete paper claims by rejecting the claim and setting an effective date only after the claim documentation is complete. (See proposed regulation at 38 C.F.R. 3.155) Many Veterans do not have access and/or the ability to use computers. Others do not have access to advocates who can provide free assistance and/or a computer. This especially applies to vulnerable Veterans. Therefore, VAs proposed rule is arbitrary and discriminatory because it treats one class of Veterans (with computers) differently than another class of Veterans (without computers) for the sole purpose of VAs convenience.

VAs Broad Change Impacts Hundreds of Thousands of Veterans VAs change is enormous in scope, adversely impacting hundreds of thousands of Veterans and beneficiaries per year by potentially preventing, delaying, or denying otherwise worthy and credible disability claims and appeals. According to VAs notice in the Federal Register: [VA] approximate[s] that for compensation, pension, and death benefits, 50 percent of each of these benefits are informal claims. (emphasis added, Page 65505) Based on VAs estimate of 1.2 million claims filed during Fiscal Year 2013, VAs regulation change has the potential of adversely affecting as many as 600,000 claims per year. Veterans without assistance may not, upon receiving a rejection notice from VA, subsequently file a claim on VAs pre-printed form. Similarly, based on VAs estimate of between 130,000 and 144,000 Notices of Disagreement (NOD) received each year, VAs regulation change could eliminate (via outright rejection) as many as 72,000 NODs. The long-term consequences are devastating to our Veterans. Over several years, as the number of claims falls sharply, then the number of appeals would be expected to be reduced even further, beyond the 50 percent reduction VA estimated. The most likely unprecedented adverse impact of VAs proposed rule change is an immediate and sharp reduction in claims and appeals within one year, potentially hundreds of thousands. The consequences could be devastating and even fatal for Veterans. Veterans without disability benefits and access to VA medical care are at increased risk of worsening physical and mental health symptoms, economic ruin, homelessness, suicide, and death. According to Aaron Glantz, an investigative journalist at the Center for Investigative Reporting, an average of 53 Veterans died each day waiting on a VA claim decision: In the fiscal year that ended in September [2012], the agency paid $437 million in retroactive benefits to the survivors of nearly 19,500 veterans who died waiting. These veterans range from World War II veterans who die of natural causes without their pensions to Iraq War veterans who commit suicide after their disability claims for post-traumatic stress disorder are denied. http://www.thedailybeast.com/articles/2012/12/20/number-of-veteranswho-die-waiting-for-benefits-claims-skyrockets.html 6

Bergmann & Moore Objects to VAs Proposed Regulation The scope and depth of VAs proposed rule change represents the most serious , egregious attack on a Veteran-friendly disability claim system in VA history. Bergmann & Moore strongly objects to VAs proposal for three main reasons. First, VAs proposed change, simply for the convenience of the government, represents a callous and underhanded means to end the agencys backlog of new and appealed claims by preventing claims and appeals that would otherwise be accepted under current regulations, thus rendering VAs proposal arbitrary, capricious, and harmful to our Veterans. Above all else, VAs main stated reason for the proposed change, eliminating the backlog of claims., is mentioned six times in the Federal Register. (Pages 65492, 65493, and 65494) VAs proposed rule change is more about ending the backlog than any other reason. Second, VAs proposal strips Veterans and beneficiaries of significant protections under existing laws and court decisions, again, causing significant harm to our Veterans and beneficiaries by preventing, delaying, and/or denying benefits earned as a result of service to our nation. Decades of Congressional Veteran-friendly actions, such as hearings, reports, and laws, will be erased. Similarly, Court rulings on those laws and existing VA regulations will be eradicated to the great harm of our Veterans. Third, the proposed regulation erases reasonably raised claims. VA intends to change a Veteran-friendly landscape into an adversarial confrontation forcing the Veteran to become a physician and attorney in order to file a VA claim and to appeal a VA rating decision. Often, reasonably raised claims are identified during the appeal process, as a Veteran can retain counsel only after an NOD is filed. When weighed in balance, any marginal improvement in VAs process, if any, comes at a steep, unprecedented loss of assistance for hundreds of thousands of our nations disabled Veterans per year by closing off access to both VA disability benefits and VA medical care. 1. VAs Change Primarily Seeks to End Claim Backlog If VA was looking for a method to eliminate the backlog of disability claims and appeals by 2015, VA could have found no other more devious scheme to deprive hundreds of thousands of Veterans and beneficiaries of the ability to file disability claims and to appeal VA decisions on an unprecedented, wholesale basis. VAs actions

represent a disturbing frontal assault on the agencys core purpose, as described by President Abraham Lincoln in 1865: To care for him who shall have borne the battle and for his widow and his orphan. Our opposition to VAs proposed regulations can be summed up in a very important quote by retired General of the Army Omar Bradley. While serving as the Administrator for the agency after World War II, Bradley said: We are dealing with Veterans, not procedures; with their problems, not ours. VA clearly makes this admission by mentioning the backlog six times in the Federal Register notice. In one example, VA has implemented a series of initiatives in eliminating the backlog of claims and has deployed technology solutions to end its reliance on the outmoded paper-intensive processes that thwart timely and accurate claims processing. (Page 65493) VA currently faces a new and reopened inventory of 686,016 disability claims. The agency also faces an appellate inventory of 266,040 claims. VA Regional Offices have an inventory of 403,835 award adjustments (including 229,105 unfinished dependency claims). VA has 15,303 pending accrued benefit claims where the Veteran died while waiting. For the past year, VAs inventory of pending work remains at nearly 1.4 million claims. (See VBAs Monday Morning Workload Report, December 21, 2013) However, for public relations and policy purposes, VA narrowly defines the backlog as only those new and reopened claims pending more than 125 days. As of December 21, 2013, VA reported 388,719 claims in the backlog. VAs incomplete definition of the backlog ignores approximately one million new and reopened claims pending less than 125 days, appealed claims, dependency claims, and accrued claims. (See VBAs Monday Morning Workload Report, December 21, 2013) Earlier this month, VAs issued a press release announcing the agencys narrow definition of the backlog was reduced by 36 percent. (See VA Progress on Claims Backlog Highlighted during Congressional Testimony, December 11, 2013, http://va.gov/opa/pressrel/pressrelease.cfm?id=2505) In reality, during 2013, VAs total claim inventory fell only four percent, from 1,432,117 to 1,371,194. While the backlog fell, the consequence was that appeals 8

rose five percent, award adjustments rose 34 percent, and accrued claims rose 17 percent. When VA shifted staff resources to focus more heavily on the backlog, other claims languished. VA intends to use the same tactic with the proposed regulation to make the backlog disappear by regulatory fiat. (See VBAs Monday Morning Workload Report, December 31, 2012) VAs myopic focus on eliminating the backlog ignores Congressional intent. A law passed a decade ago requires that all claims that are remanded by the Board of Veterans Appeals or by the United States Court of Appeals for Veterans Claims (Court) to VBA for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Public Law 108-183, 707(a), (b), 117 Stat. 2651 (2003) (codified at 38 U.S.C. 5109B, 7112). VA created the backlog of new claims and appeals due to a failure of leadership to plan. VAs Federal Register notice concludes: Many factors contribute to the backlog by increasing both the volume and complexity of claims. Some factors external to VA include 10 years of war with increased survival rates, postconflict downsizing of the military, and a difficult economy. Other factors include greatly increased VA outreach, the decision to afford presumptive service-connection to additional conditions for exposure to herbicides, and special evidentiary rules for Posttraumatic Stress Disorder (PTSD). (Page 65492) In plain language, VA attempts improperly to blame the backlog on external forces. The current wars in Iraq and Afghanistan, combined with VAs decisions to change regulations for Agent Orange and PTSD resulted in three enormous tidal waves of claims. Again, these are internal causes. The only external factor remains the difficult economy, the worst U.S. economic downturn since the Great Depression that began in 1929. The consequences of the Administrations and VAs decisions were enormous. The Iraq and Afghanistan Wars resulted in nearly one million new claims since 2001. The Agent Orange and PTSD regulations resulted in several hundred thousand claims each in 2010. During that time, VA did not seek additional training or staff to handle the growing backlog and VA shifted staff from appeals, award adjustments, and accrued claims to process new and reopened claims. VAs Federal Register notice describes limited resources as a reason for VAs proposed rule change: 9

VBA must use its limited resources as efficiently as possible, striking the optimal balance between resolution of initial claims and timely appeals processing. To be successful, any effort to quicken processing must assume ongoing workload challenges relative to VAs operating resources, and therefore focus on process improvements and efficiency gains. (emphasis added, Page 65493) In plain language, VA confirms the reason the agency is unable to process claims is due to limited resources in this case a chronic shortage of claims-processing staff. Instead of hiring more staff, VA simply transfers an unfair share of the burden of applying and appealing from VA to the disabled Veteran. VAs Federal Register notice describes training as another example of why VAs proposed rule change is aimed at eliminating the backlog. VAs lack of training caused VA employees to overlook thousands of Veterans letters disagreeing with a VA claim decision. Errors in identifying NODs can complicate otherwise straightforward claims. (Page 65497) Instead of improving training, quality control, and oversight, VAs procedural change instead seeks to place an additional and unfair burden upon Veterans by mandating the use of VAs NOD form to appeal. VAs stated effort to eliminate the backlog continues to be widely reported in the news. Eliminating VAs backlog of pending disability claims remains a top priority for the White House and VA. According to the March 24, 2013, edition of The Hill newspaper in Washington, DC: We have put in place a robust plan to end the backlog in 2015. That's in our commitment, [VA Secretary Eric] Shinseki said. Shinseki also said President [Barack] Obama was determined to help speed up the process. The president's been very clear. Veterans are a top priority with him and ending the backlog is a [sic] foremost in his mind. He has made that very clear, he said (emphasis added). http://thehill.com/video/administration/290051-shinseki-vows-backlog-inveterans-claims-will-end-by-2015 Hundreds of additional news articles about VAs claim delay and error crisis continue appearing nationwide every year. Network television, radio, and online news remain flooded with stories about VAs unresolved, chronic inability to process claims accurately or in a timely manner.

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Congress has held dozens hearings on this issue in the past ten years, confirming the backlog remains a chronic, unresolved problem of VAs own making. VAs notice in the Federal Register asserts the agency would be able to expedite claims if the proposed rule becomes final: [F]rom March 1, 2012 to January 31, 2013, the Houston ROs control time for a standard NOD was approximately 7 days. In contrast, from March 1, 2012 to January 31, 2013, this ROs control time for pending NODs submitted in a traditional format averaged 88 days. These statistics show a markedly decreased control time at the Houston RO of approximately 81 days averaging from March 1, 2012 to January 31, 2013. (Page 65498) At first glance, VAs use of the agencys NOD form appears impressive by reducing NOD control time from 88 days to 7 days. However, the reality remains unknown. For example, VA did not reveal all of the conditions of their test, such as how it dealt with variables such as training, staffing levels, and management oversight. Therefore, VA placed all the credit for the increased speed on the use of VAs new test NOD form. If all VA staff was properly trained, and if VA staffing was maintained at a constant level to view incoming mail in a timely manner, and if there was consistent VA management oversight, then there might not be any discernable difference in processing time when comparing a Veterans letter disagreeing with a VA decision with VAs mandatory use of VAs NOD form. If adopted, VAs proposed regulations would end a claimants ability to file a claim using an alternative method, such as writing short letter to VA applying for benefits or sending a written note to VA disagreeing with a VA claim decision. VAs proposed regulations seek to end the backlog the agency created by slashing the inflow of new and appealed claims by as much as half. When the number of claims and appeals decreases, VA expects the backlog to diminish in size so the agency can declare victory over the backlog in 2015. VAs victory would only be Pyrrhic because VAs other systemic problems will remain staff shortages, untrained staff, poor planning, and lack of management oversight leading to delays and denials for hundreds of thousands of our Veterans. VAs proposed rule turns the entire concept of assisting Veterans on its head, making VA far more adversarial in tone and in reality. Never before has VA taken such a 11

draconian, vicious, and anti-Veteran approach to address the backlog by preventing wounded, injured, ill and disabled Veterans from filing claims and appeals. President Lincoln and General Bradley would be ashamed of VAs actions against those who protected and defended our nation. 2. VAs Proposed Regulation Undermines Laws and Court Decisions What will most likely happen if VAs proposed rule is finalized? Unfortunately, if VAs proposal becomes final, Veterans rights will be significantly undermined. Specifically, Congressional actions and decades of case law intended to provide a claimant-friendly environment and otherwise defer to our Veterans needs after serving to protect our Constitution and our nation will be erased. If VAs proposal becomes final, then Veterans seeking VA disability benefits will face a much higher standard to file and to appeal claims that was not intended by Congress or the Courts. For a claim, the burden increases from a letter to a detailed application requiring medical expertise. For an appeal, the burden increases from a simple notice of disagreement to a longer, detailed, and argument-filled pleading. VAs proposed change ignores the following significant Court and Congressional actions mandating a Veteran-friendly disability compensation claim system at VA: In 2009, the Supreme Court ruled that Congress "has expressed special solicitude for the veterans' cause." See Shinseki v. Sanders, 129 S.Ct. 1696, 1707. In 2011, the Supreme Court ruled there is no statute of limitations for filing a claim. See Henderson v. Shinseki, 131 S.Ct. 1197, 1200. In 1985, the Supreme Court ruled VA had to process disability claims "with a high degree of informality and solicitude for the claimant." See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 311. Congress ordered VA to grant Veterans and beneficiaries the benefit of doubt and grant a claim if the evidence is in equipoise. See 38 U.S.C. 5107 and 38 C.F.R. 3.102. Congress ordered VA to provide reasonable assistance to Veterans with obtaining evidence. See 38 U.S.C. 5103(a) and 38 C.F.R. 3.159(b). 12

Congress allowed Veterans to reopen previously denied claims with new and material evidence. See 38 U.S.C. 5108 and 38 C.F.R. 3.156. VA has an obligation to assist claimants by explaining issues and evidence needed to award requested benefits. See 38 C.F.R. 3.103. VA is already required to communicate with the Veteran when the agency receives notice of a Veterans intent to file a claim. Such communication from VA to a Veteran must include a VA claim form as well as information on representation and VAs Duty to Assist. Therefore, VAs proposed rule is contrary to existing law.

VAs proposed rule change significantly harms our Veterans because it eviscerates the abundantly clear record of Congressional intent and Court decisions listed above for the sole purpose of making it easier for VA to block, delay, or deny disability claims. 3. VAs Proposed Rule Eliminates Reasonably Raised Claims Specifically, one likely adverse change for our Veterans would be that VAs proposed rule will destroy the concept of reasonably raised claims. We are concerned because VAs proposed regulation radically changes a Veteran-friendly landscape into an adversarial confrontation forcing the Veteran to become a physician and attorney in order to file and to appeal a VA disability claim. [A] claimant is not required in filing a claim for benefits to identify . . . the medical cause of his condition; rather, he sufficiently files a claim for benefits by referring to a body part or system that is disabled or by describing symptoms of the disability. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) (quoting Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009)). This is because a claimant is not expected to have medical expertise and generally is only competent to identify and explain the symptoms that he observes and experiences. Id. (quoting Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)). Also, even if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection. Id. (citing Kent v. Nicholson, 20 Vet. App. 1, 16 (2006) (noting that a claim includes all theories under which service connection may be granted)). 13

The Secretary is not required to raise and investigate all logically possible theories of service connection in every case, [b]ut, upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veterans condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimants filing. Id. (citing Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), affd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), as characterizing Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), as holding that the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim)); see also Roberts v. Shinseki, 23 Vet. App. 416, 431 (2010) (noting that Board commits error in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record). The Court has jurisdiction over any matters that were reasonably raised below that the Board should have decided, with regard to a claim properly before the Court, but failed to do so. Clemons at 3; see also Tatum v. Shinseki, 23 Vet. App. 152, 157 (2009) (citing Clemons for proposition that Court has jurisdiction to remand any matters reasonably raised below that Board should have but failed to decide). The threshold for determining whether a theory of entitlement is reasonably raised by the record is similar to the threshold established by 38 U.S.C. 5103A(d), 38 C.F.R. 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006), whereby VA must provide assistance in the development of medical evidence when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See DeLisio at 53 (citing Robinson, 21 Vet. App. at 553, as noting that the duty to assist is triggered when some evidence . . . indicates that the disability may be associated with . . . service); id. at 63 (Lance, J., concurring in the result) (I would encourage both the Secretary and practitioners to focus on the McLendon standard whenever there is a question about whether an additional theory should have been addressed and investigated regardless of novel facts that may seem to dress up the problem as a new issue.

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Alternatives to VAs Proposed Rule VAs intention to use pre-printed forms is not questioned here. Rather, VAs proposal to mandate the use of the two forms without proper testing and without protections for the rights of our Veterans is strongly questioned. We prefer the use of the forms be voluntary and that Veterans rights be protected as intended by Congress and the Courts. Here are reasonable alternatives: For at least one year, VA should consider broader testing of the voluntary use of VAs pre-printed forms to determine the actual value of VAs proposed rule. During that time, VA should provide enhanced training, increased staffing, and greater management oversight so VA employees can more accurately and quickly identify both claims and appeals, regardless of whether the claim or appeal is submitted on a pre-printed VA form or not. In the event VA begins using a pre-printed claim form, then VA should consider a claim form with less of a burden, one that requires the Veteran to only list symptoms. This is most important for Veterans suffering from physical conditions associated with bomb blasts, toxic exposures, and mental health conditions associated with deployment to war, training accidents, or military sexual trauma. This is also vital when Veterans apply for SMC and IU. In the event VA expands the use of pre-printed NOD appeal forms, then VA should consider an NOD form that does not require the Veteran to list each condition where there is disagreement. The NOD form should not require the Veteran to describe VAs alleged error (such as effective date, rating, or service connection). The NOD form should not require the Veteran to make a legal pleading. In the event of a Veterans hospitalization, VA should bear the entire burden of automatically notifying a Veteran, in writing and within a few days, of a Veterans right to file a claim. The burden must remain with VA and not be shifted to a Veteran who is disabled seriously enough to require hospitalization. These Veterans are much more vulnerable to missed deadlines and other minor mistakes that should not otherwise derail a claim. Hospitalization of a Veteran as well as his or her treatment records must continue to be considered an informal claim. VA should develop a plan to implement the rules developed in the Regulation Rewrite project in order to improve claims processing. Clearly understood rules 15

will help Veterans and their advocates file complete claims, regardless of whether the claim is submitted on a pre-printed VA form or not. Plain language benefit claim rules are intended improve claims processing time and accuracy by VA employees while protecting Veterans rights. (See RIN 2900-AO13, November 27, 2013) Finally, Veterans and VA would be better served if VA spent more time educating Veterans about VAs claim process and the voluntary use of VAs pre-printed forms. Specifically, VA incorrectly assumes all Veterans intending to file claims already know about eBenefits and Fully Developed Claims. Education and outreach are preferred instead of VAs proposed regulatory approach that seeks to severely penalize Veterans who do not know about or have the legal training to understand thoroughly VAs highly complex benefit claim rules.

Conclusion In the most vigorous manner possible, we oppose VAs proposed rule change mandating the use of pre-printed VA forms for our Veterans to file and to appeal VA disability benefit claims. Veterans should not be forced to perform legal work for their appeal before they are able to retain counsel. VA must avoid restricting access to VA disability benefits and healthcare by shifting application and appeal burdens from VA to our Veterans. While we understand VAs stated intent to eliminate the backlog, the cause of the backlog is not Veterans. Therefore, the burden of fixing VAs crisis must not be placed on our Veterans. A review of VAs proposed regulation reveals how burdens for VA often use the word may, leaving VA considerable room to implement the proposed regulation as VA sees fit, without further notice and comment in the Federal Register. In sharp contrast, VAs proposed regulation frequently uses the word must, when describing the burden for our Veterans. This seismic shift in burden is unfair, unjust, and unreasonable. It must not stand. VAs proposed rule is not well tested, and therefore the value , if any, to VA is unknown. The one definitely known outcome is highly adversarial to Veterans: complicating the claim and NOD process resulting in hundreds of thousands of rejected claims and tens of thousands of rejected NODs which will ensure a sharp drop in the number of Veterans compensated for military-related medical conditions and eligible for VA medical care.

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VAs proposed rule appears to be an outrageous means for VA to prevent, delay, or deny disability claims and appeals by shifting many burdens to Veterans in an attempt to eliminate VAs claim backlog of 1.4 million claims. VAs proposed rule change flies in the face of what is supposed to be a pro -Veteran, paternalistic claims process developed over more than two centuries and fine-tuned in the last two decades with the creation of the Court of Appeals for Veterans Claims and judicial review. VAs proposed change is enormous in scope and impact, and therefore must be rejected as highly adversarial to Veterans, especially Veterans without representation and/or vulnerable Veterans with cognitive and/or mental challenges. In conclusion, for the aforementioned reasons, we request that VA rescind the agencys proposed rule in its entirety. Sincerely, GLENN R. BERGMANN Partner JOSEPH R. MOORE Partner

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