Appeals backlog continues to grow, VA seeks changes to detriment of veteran
March 3, 2015
As the veterans benefits’ appeals backlog continues to grow—it’s up 21,018 cases from a year ago—the House of Representatives will conduct a round-table meeting today to discuss possible solutions.
“We feel like Veterans Affairs has submitted several proposals in the past couple of years that would undoubtedly streamline the process, but to the detriment of the veterans,” said Joe Moore, former VA attorney and partner at Bergmann & Moore. “There is a deficit of trust here that appears to be justified given VA’s past practices and the current anti-veteran legislative proposals.”
As the Department of Veterans Affairs has thrown all of its resources at the initial claims backlog, the appeals backlog has increased. Veterans who have waited the longest for their benefits—sometimes as long as decades—have been forced to wait even longer, usually at least 19 months, according to VA records. Each submission of additional evidence can add 200 days to the delay, according to VA officials.
That means Vietnam War, Korean War and even World War II veterans are left without benefits when they most need them.
Moore, who co-founded Bergmann & Moore, a national firm managed by former VA attorneys that exclusively handles veterans’ disability appeals cases, was invited to take part in the round table discussion.
The House Committee on Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs will meet at 1 in the Cannon House Office Building to address the concerns with VA and the legislative system.
“Systemic change is necessary, as the status quo is plainly unacceptable,” wrote Rep. Ralph Abraham, R-Louisiana, chair of the committee, in an invitation to the round table.
The round table includes members of Congress, top VA officials, Court of Veterans’ Appeals officials and officers from the National Organization of Veterans’ Advocates, The American Legion, Disabled American Veterans, Paralyzed Veterans of America, Veterans of Foreign Wars and Vietnam Veterans of America.
According to VA, compensation appeals claims stood at 269,762 at the beginning of March 2014, and are up to 287,075 as of the beginning of this month. VA also breaks those numbers down by region.
VA proposes to fix the problem by taking away veterans’ ability to submit additional evidence to prove a claim, as they’ve done in a pilot program.
“It’s OK to limit the review of newly submitted evidence by lower tribunals, but no program should ever prevent relevant evidence from being submitted at any time,” Moore said. “The only purpose served is preventing deserving claims from being granted.”
In the pilot program, veterans are expected to submit fully developed claims to have their paperwork expedited. But if a veteran were to submit a claim for a service-connected back injury, and later have a VA physician say definitively that the injury came from a vehicle accident in Iraq, the veteran would have to pull himself out of the expedited process to submit that piece of evidence. That’s a lot of pressure to not say anything—and it likely means the claim will be appealed later if the injury is ruled to be not service-connected.
“We need to assume VA will put all its resources into the pilot programs it likes to show they work, to the detriment of veterans going through the normal process,” Moore said.
And, beginning March 24, veterans will no longer be able to submit an informal letter seeking benefits; instead, they will have to submit each piece of evidence and a summary of their medical issues with their claims on a prescribed form. Most veterans are not doctors, and the onus to provide evidence has always been on VA. Abraham has proposed legislation to roll back the new rule. It was sent to committee last month.
Moore says that doesn’t address the root of the problem.
“There’s an appeals backlog because so many mistakes are made on initial claims,” Moore said. “Adjudicators rush through the process, sending the paperwork on to the next person just to get it off their desks.”
Instead of pushing the load to the veteran, Moore believes better training, more accountability and boosted staffing would better help the process. For example, adjudicators should be reviewed based on error rates, not just how many appeals they plow through in a week–the focus has to be quality over quantity.
Moore also proposes:
• getting rid of the Statement of the Case and Substantive Appeal;
• allowing electronic filing of a Notice of Disagreement;
• improving lawyers’ access to online files;
• improving the ability of lawyers to represent veterans;
• and creating a contact point for attorneys in each Regional Office.
Moore disagrees with several new legislative proposals the VA has put forth, including raising the evidentiary threshold for VA to provide a compensation-and-evaluation exam; asking veterans to submit all evidence at the beginning of a claim; and reducing the notice-of-disagreement filing deadline from a year to 60 days.
Appeals often come when a veteran has been told his condition is not service-connected. A recent Bergmann & Moore case involved a veteran, Harvey Diamond, who had been told his chronic peripheral neuropathy was not service-connected, even though he had been exposed to Agent Orange when he served in Vietnam. Diamond’s doctor insisted the condition was connected to the exposure, and so Diamond filed a claim in 2009. Six years later, VA approved his claim. Diamond wrote the best-selling “Fit for Life” series.
Others have applied for service-connection for post-traumatic stress disorder and spent years trying to prove traumatic events they witnessed in combat sparked their disabilities. Sometimes, there is no official record of an event, or a veteran’s symptoms did not arise until after he or she left the military. Without the ability to provide that additional evidence—and without an understanding that the government is supposed to help veterans find evidence that will support their cases—many veterans without an adjudicator’s background in how the process works will be left with little or nothing.