[T]he government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006)
24 January 2015
Veterans Affairs: A "HAMPSTER WHEEL" DISABILITY APPEALS PROCESS"
Veterans advocates: Stop the VA 'hamster wheel' disability appeals process
In the latest black eye for the Department of Veterans Affairs, congressmen grilled officials Wednesday over construction mismanagement that has cost the department hundreds of millions of dollars in overruns and delayed major projects by years.
The effort to clear a massive backlog of veteran disability claims is hurting efforts to address a similar backlog in appeals of denied claims, say advocates demanding reforms to an onerous “hamster wheel” system that leaves veterans languishing for years.
A congressional subcommittee hearing Thursday focused on the appeals process, noting that the Department of Veterans Affairs has about 350,000 pending appeals of denied service-connected disability claims.
“I am aware that the [VA] chose to prioritize certain initial claims in recent years, but I must say that when veterans in my district share that they waited six, eight, 10 years to resolve a meritorious appeal of a service-connected disability claim, I just find that alarming and unacceptable,” Rep. Ralph Abraham, R-La., said.
Veterans wait an average 3½ years to get an initial decision and often years longer for the VA to finalize that decision. There are almost 510,000 original disability claims pending, with more than 240,000 deemed “backlogged” — meaning the veteran has been awaiting a decision for at least 125 days.
When veterans’ disability claims are denied, they face another lengthy process involving multi-step appeals in which their cases often ping-pong between national and regional offices for years.
VA officials have said they are aggressively working to clear the appeals backlog, but they are hamstrung in part by a complex system they are legally required to uphold.
“VA recognizes that under the framework established by current law, veterans are waiting too long for final resolution of appeals,” Laura Eskenazi, vice chairwoman of the VA Board of Veterans’ Appeals, said in written testimony submitted to a House subcommittee. “VA cannot fully transform the appeals process without stakeholder support and legislative reform.”
Veterans groups and advocates lined up to blast the VA appeals system at Thursday’s hearing in front of the House Committee on Veterans’ Affairs subcommittee on disability assistance and memorial affairs.
“It appears the mission for some VA bureaucrats is to limit the government’s liability to our nation’s veterans by formalizing the claims and appeals processes to the point where benefits are unfairly restricted,” Jim Vale, director of the Vietnam Veterans of America veterans benefit program, said in submitted testimony.
A statement submitted to the hearing by Gerald Manar, deputy director of Veterans of Foreign Wars, called on the VA to stop ignoring appeals in favor of the initial claims backlog and increase staffing on the appeals board.
The Veterans Board of Appeals “has neglected large segments of other work in order to give the illusion that it is making progress on reducing its ‘workload’ — self-defined as disability compensation and pension claims — and its ‘backlog’ — again, only disability and compensation and pension claims,” according to his testimony.
In submitted testimony, Bart Stichman, a prominent veterans attorney and joint executive director of the nonprofit National Veterans Legal Services Program, decried the “hamster wheel” that veterans get caught in, even after their appeals appear to have been resolved.
“There’s a duty to assist the veteran but not a duty to sabotage the claim,” he said.
He laid out a five-point plan to reform the process, including prohibiting the Board of Veterans’ Appeals and VA regional offices from pursuing negative evidence against a claim after veterans have shown sufficient evidence to support their claims.
Lawmakers at Thursday’s hearing said the VA and Congress must act now.
“We need to take action so we don’t get too far behind so we’re not having this exact same hearing two years from now,” Rep. Dina Titus, D-Nev., said
1/24/2015: Here's our take on this excellent, timely article.
It is mostly on-target and the writer puts iron directly on the issue. A more precise munition would have landed on the system keeping veterans' claims, once denied and in appeals, stuck at the regional VA offices for years before being forwarded to the Board of Veterans Appeals where claims are processed in a matter of months (a long enough delay in itself but nothing compared to the regional offices letting claims simply languish until somebody puts it together for BVA. Instead, BVA should up their head-count, placing authoritative reviewers in those VAROs to quickly QC new appeals as soon as received...acting much as DROs, they could give a quick pass and eliminate some of the countless remands BVA is compelled to return, and also do what the Nation wants: find a way in law, medicine and justice to get the vet's claim fairly considered.
No money for the proposed personnel? Let the veterans' service organizations raise the funds, submit the money to the US Treasury in some manner and use that to pay these BVA regional teams. Another idea is to hire recently-retired BVA staff and DRO-level adjudicators for the same purpose as they'd be much more job-ready, inviting them to serve at VAROS near their retirement homes. Have 'em get into VAROs, grab a cup of coffee and a denied claim awaiting appeal and go over it to see if any positive steps can be taken such as discovery of clear and unmistakable errors...on either party's fault! The log jam in appeals is at the VAROs...solve the problem where the problem exists.
Plan B: Find some way for the veterans service organizations to do that appeals package review in the VAROs. Leave the real questions of law or fine interpretation of details for the BVA but cut down the remands and catch the clear and unmistakable errors (even if such faults don't rise to the formal level of a CUE) and speed the worthwhile claims along to the BVA.