VA Secretary Proposes Overhaul of Claims Appeals Process for Senate Consideration. "Fails Veterans," He Insists.

(note: my own claim submitted in 2011, denied in 2012, appealed immediately, is coming up on its third year waiting for the VA regional office to forward it for appeals, after which the Board of Veterans Appeals takes about another six months to process. If successful(?) in my appeal, the claim is returned to the regional office to begin the process all over again in hopes for a more positive outcome. The process described by Secretary McDonald is truly designed to wait out veterans remaining days..."delay, deny until they die" is how the Vietnam Veterans of America describe it.

It might not be clear to non-veterans that all the while a claim sits awaiting an initial decision and then the appeal, VA refuses all medical care and other benefits. In my case, these last five years with cancer, heart disease and other problems would have had me dead and off the VA's queue by now if I'd not had other medical care available. The longer VA delays a decision, the more money it saves.)

“Decades worth of law and policy layered upon each other have become cumbersome and clunky,” McDonald said in a statement to House lawmakers and the press. “Most importantly, it is now so antiquated that it no longer serves veterans well as many find it confusing and are frustrated by the endless process and the associated length of time it can take to get an answer.”

The Cabinet secretary he needs both legislation and resourcing to “put in place a simplified appeals process” to handle the cases in a matter of months, instead of years.

McDonald’s call echoed comments he made to the Senate Veterans' Affairs Committee on Jan. 21 during a hearing on department reforms. He said that with lawmakers’ help, officials could reduce the processing time for appeals cases to less than a year by 2020, much quicker than the current three-year average wait for decisions.

VA officials have worked in recent years to clear the backlog of first-time benefits applications after intense public criticism about the waits facing veterans seeking disability payouts.IOver the last three years, the number of cases pending for four months or more has dropped from more than 612,000 to fewer than 80,000 this week. But officials missed their publicly stated goal of reaching zero by the end of 2015.

At the same time, the number of appeals — cases where veterans believe claims processors have misunderstood the severity of their injuries and shortchanged their benefits payouts — has risen by more than one-third, to 440,000 cases.

VA officials have blamed the rise on the growing number of veterans filing benefits claims, noting the percent of cases heading to appeals has held steady at around 12 percent in recent years.

They also note that administrative moves alone to certify and transfer appeals usually take more than two years.

Veterans also have the option of adding new illnesses and disabilities as the appeals process drags on, giving them the opportunity to receive larger payouts but also lengthening the wait on decisions.

McDonald called the current wait times for veterans in the process “unacceptable.”

The VA secretary says he wants a new appeals process “with the timely and fair appeals decisions veterans deserve, and adequate resourcing.”

House lawmakers have begun work on legislation to reform the appeals process. A bill sponsored by Rep. Beto O’Rourke, D-Texas, would create a “fully developed appeals” process, limiting introduction of new evidence and arguments but guaranteeing quicker processing time and decisions.

Mirror legislation is expected to be introduced in the Senate in coming days. The proposal could become the basis of the type of reform McDonald wants, and has support from key lawmakers from both political parties.

But Senate Veterans' Affairs Committee Chairman Johnny Isakson, R-Ga., last week warned that getting an overhaul plan through Congress in an election year  “will take significant legislative willpower, but it's not impossible.”

McDonald said plans are underway to move on upgraded mail systems and digitized records that will speed the process some. Staff is undergoing retraining to better handle those cases.

“But (those steps) will not be enough,” he said. “We must also look critically at the many steps in the current complex appeals process used by VA and by veterans and their advocates to design a process that better serves veterans.”

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.