30 August 2014

VA Board of Veterans Appeals: Another Log Jam in Claims Processing

We all know of the lengthy delays built into the VA disability claims process, although we also must acknowledge the improvement in processing time. VA's inventory of overage claims is much better now than a year ago, and we hope for continued improvement. Lots of hard work has gone into that brighter statistic.

One less encouraging statistic is the entire Board of Veterans Appeals.

The problem begins with denied claims. If a veteran's claim is too complicated, it seems best to most adjudicators to deny it and force the vet to either drop the issue or file an appeal with the BVA. If the claim requires a bit of push-back by the adjudicator against C&P leadership, as in the case of C&P ordering C-123 claims to be denied, the adjudicator takes the easy path and denies, again forcing the vet to give up hope or appeal.

If the adjudicator's desk is crowded and production statistics are down, a denied claim counts just as much as an approved claim, especially when any "benefit of the doubt" or "non-adversarial" leeway is needed...and claims either denied or delayed both save the Department money right off the bat.

But of course the vet can appeal. While that is a solution, it is also the core of the problem.

Three to four years until a BVA decision. For a veteran who already has a diagnosed illness and has submitted a claim, then waited a year or two for a decision, he/she now has to wait another three to four years for a BVA decision. BVA statistics worsened during 2013 and are worse yet for 2014...they just don't have the administrative staff and ALJs necessary to handle the work.

But the problem caused veterans has a cause more incidious than just the BVA staffing.

First, it begins with the number of claims denied by regional offices, forcing the vet to an appeal. Too often, a complicated case is "resolved' by the VARO dumping the vet into the BVA line. Too often, the adjudicator's statistics are weak and easily improved by denying more claims, faster, as opposed to approving them. An approved claim, if made in error, is hard for VA to correct, but a denied one leaves VA with the good feeling that the vet still can find justice through an appeal.

But that's not the case. We call a one or two year wait for the claim to be processed at the regional office unacceptable, because during that period the vet is denied all medical care for the illness or injury, although, to be fair, sometimes VA provides limited treatment on a presumptive eligibility basis. Once the claim is denied, another dose of injustice, a huge one, is delivered...again, by the regional office.

The VA sits on the claim appeal at the regional office for years. The claim has to be prepared, with a Statement of the Case provided the vet and other administrative steps taken, before the appeal is packaged and sent to the BVA. And this is where VA has built-in an additional time-killer (part of their "Delay, Delay Until They Die" policy towards us?) According to the most recent BVA report to Congress, BVA takes "only" 245 days after receiving an appeal to make a decision.

The rest of the three to four year delay is accomplished at the regional office. 962 days, to be exact. 962 days to explain why the claim was denied (which they've already told you) and forward to the BVA. 962 days wasted on something that shouldn't take 62!

So if you're the veteran with soft tissue sarcoma, seeking life-saving treatment for your cancer, your claim has you waiting one or two years before a possible approval at the local VA regional office, or waiting a total of between four to six years if your claim is denied and you have to wait for BVA to decide on an appeal...hoping the decision is in your favor.

But VA hides another nasty trick up their sleeves regarding the BVA: either deliberately or through error, regional offices deny claims they know leave the veterans with some issue the BVA will remand back to the regional office for further development. Anything large or small, anything overlooked, can force BVA to remand the veteran's claim back to the regional office for more work. Forget to address one of the claimed illnesses, fail to order compensation physicals, forget to get something signed or dots dotted or some small detail, and the claim doesn't get resolved by BVA but remanded. In truth, a remand is an error on the part of the regional office, not the vet nor the BVA!

After remand, the claim might get approved at the VARO as a result of that additional work, or more often returned to the BVA...and that cycle takes "only" another 445 days. And sometimes another remand! Only a 28% chance of a BVA award but 45% change or a remand!

Back to your soft tissue sarcoma: you've now waited five to seven years hoping VA will save your life.

Good luck. Oh, and thank you for your service.

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