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Veterans, families seeking benefits from VA are dying for a decision, investigation finds

PITTSBURGH — The backlog of initial and supplementary benefit claims at the Department of Veterans Affairs is expected soon to reach 1 million filings, forcing most honorably discharged GIs to wait for at least nine months for a decision.

Though that glut of filings has captured the attention of Congress, a Tribune-Review investigation found that veterans who disagree with a VA decision must wait far longer while their appeals percolate through the agency's internal courts — so long that many die while awaiting resolution of their disputes.

At the first level of arbitration, the Board of Veterans' Appeals in Washington, it takes an average of 1,040 days for the agency to render a ruling. That's 3½ times slower than the response for those awaiting word on their initial filings.

Sifting through more than 160,0000 appeals from 2009 through early 2013, the Trib discovered 2,936 cases in which veterans or their surviving spouses died before getting decisions on their disputed claims.

If that rate holds, more than 500 veterans will die this year while their appeals languish — about one vet every 18 hours.

Veterans Affairs officials declined to comment for this story.

“This is a huge problem in the veteran community,” said Chris Attig, a Dallas attorney who works on VA cases nationwide. “The unofficial motto of the VA, from the veteran's perspective, is ‘Delay till they die.' ”

When the federal fiscal year began on Oct. 1, the board had a record 45,959 appeals on its docket, up from 7,731 cases in 2002 under President George W. Bush's administration and before the U.S.-led invasion of Iraq. The growing glut puts an increasingly older group of vets at risk of dying before they get a ruling, particularly veterans of World War II and the Korean and Vietnam wars.

In the rolls of appeals tied to dead veterans, the average time between when a veteran notifies VA of a disagreement with a decision and their death is 5½ years, the Trib determined.

In most of those cases, the claims died with the veterans. VA board judges dismissed 2,189 appeals, or about nine of every 10 cases linked to dead vets, because no eligible family members came forward within a year of the deaths to carry on the claims.

Survived war but lost battle

The VA's claims hourglass ran out on Capt. William C. Brearley and his widow, Joan, of Seabright, N.J.

He flew 97 combat missions over Europe during World War II, twice surviving crash landings from direct hits on his fighter planes. In one crash, he scrambled out of the cockpit as flames engulfed the plane.

Brearley, who was grounded for his own safety by Army Air Forces doctors, returned to Philadelphia with 14 decorations, including two Distinguished Flying Crosses for exceptional heroism. When he sought medical and mental help for what started as “butterflies” in his belly and became anxiety, alcohol abuse and a chronic fear of fire, the VA turned him away, according to government records.

On Sept. 18, 1961, he committed suicide. He was 41.

Forty-three years later, his widow read that the VA was increasing benefits for Iraq and Afghanistan vets suffering from post-traumatic stress disorder and brain injury — ailments that seemed eerily similar to her late husband's post-war problems.

She submitted a claim to the VA's Newark field office. Though it initially was rejected, she never gave up. During the next seven years, she won decisions from the Board of Veterans Appeals and later the judges above it at the U.S. Court of Appeals for Veterans.

The VA Newark office made “clear and unmistakable errors” in handling claims by Brearley and his widow, the appeals officials concluded.

The VA never had to pay. On Oct. 22, a day before Superstorm Sandy demolished her home, Brearley died at 87.

According to legal filings, four months had elapsed since the agency's courts remanded her case back to Newark VA for a final decision in favor of the Brearleys. It had been eight years after she appealed the VA's initial bad decision on her husband's care and 67 years since her husband sought VA help and was turned away.

“Aunt Joan knew that her husband went off to war whole and came back in pieces mentally,” said her nephew, Christopher Lee of Basking Ridge, N.J. “She wanted someone to acknowledge that. She never did this for the money.”

As the years passed, Brearley told Lee that VA bureaucrats were “just waiting me out. ... They'll be happy when I die and go away.”

In the end, Lee said, “she was right.”

“Joan Brearley was a sophisticated woman. She was active in politics, passionate about justice, an upper-middle-class professional who had written many books and articles. And she couldn't even manage the VA system. If it fails a woman like her, imagine all the thousands of vets it fails every day,” said Christopher Swift, her pro bono lawyer, an adjunct professor of national security studies at Georgetown University and fellow at the Center for National Security Law at the University of Virginia.

Filings in her case show a concerned Swift begging the VA to rule before his increasingly ailing and aging client died. As a nephew, Lee is ineligible to continue the Brearleys' claim.

The Trib found that most appeals carried on by substitutes ultimately are successful. The appeals board in Washington found errors significant enough in three of every five cases the Trib analyzed, overruling initial decisions and either granting benefits to the veterans or remanding the cases back to field stations for reviews of the evidence.

The Trib's findings parallel the board's official estimate of a 73 percent error rate in initial field office ratings nationwide.

Being proved right, however, takes a long time.

On average, substitute appellants waited for eight years from the time they lodged a claim to the time they got a ruling in their favor.

The Trib uncovered 68 cases in which eligible relatives such as Joan Brearley died before the board ruled. On average,they had been waiting for three years for a decision.

‘They're disrespecting veterans'

The VA's Pittsburgh claims office has the third-worst backlog in the nation for initial decisions. A recent study by Iraq and Afghanistan Veterans of America, a nonprofit service organization, revealed that the office takes an average of 625 days to make an initial decision, trailing only New York City and Reno in long waits.

A decision did not come in time for World War II veteran John Peters of Bellevue.

Peters survived 35 missions in the 8th Air Force's 303rd Bomb Group. Like Brearley, the former staff sergeant twice was shot down.

In 2010, after a stroke, he applied for VA benefits to defray mounting medical bills.

He never got them. On April 19, Peters died with stroke-induced dementia. His wife, Patricia, died on Sept. 16, worrying until the end about the VA's lack of progress on her husband's claim, according to their daughter, Susan Kremmel of West View.

“Now that he and my mother are gone, it's not about the money,” Kremmel said. “It's about the VA. They're disrespecting veterans.”

Kremmel said her father could have stayed in the United States as a flight instructor and did not have to brave more than 25 missions as a tail gunner on B-17 bombers. But “he kept getting into his bomber because he thought that was the right thing to do,” she said.

“When he needed help, what did VA do for him?”

The Trib investigation found 51 Pittsburgh-area appeals in which a veteran or substitute appellant died before the VA rendered judgment. On average, those appellants had been waiting for 4½ years for a decision before their deaths.

“Oh, I've had cases that had been going on for seven years, waiting for a decision,” said Graham Wieland, an American Legion service officer who helps Western Pennsylvania veterans with claims. “I lose a lot of people like this.”

cprine@tribweb.com

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