To solve the VA appeals problem, get rid of the hamster wheel

President-elect Trump spent the Christmas holidays pondering his choice for a new Department of Veterans Affairs (VA) Secretary while his transition team formulates plans to make the VA great again. Bubbling below the surface, however, is another VA scandal in the making. Almost 450,000 military veterans spent the holiday wondering whether they will be successful in obtaining compensation and care for their service-connected injuries.

These veterans have claims for health and disability benefits denied by the VA and are navigating the appellate process. For many, it is not their first Christmas in limbo as the their appeals languish in a sea of red tape.

{mosads}The appellate backlog exploded as the VA reduced the initial claims backlog. VA Deputy Secretary Sloan Gibson, testifying before the House Veterans Affairs Committee last summer, noted that the quicker action on initial claims caused an 11-12 percent increase in the appeals backlog.  This led to the archaic and inadequate appeals system collapsing under its own weight.

Most veteran advocates agree that the key to solving the VA appeals problem is to eliminate the hamster wheel, where claims bounce back and forth between regional offices and the national level Board of Veterans Appeals. This intermediate appellate board acts as a clearinghouse for appeals. It was designed to provide an independent review of the veteran’s case in informal, non-adversarial proceedings. Unfortunately it has served as an illustration of ineptitude as appeals that should take months drag on for years.

In their 2015 report to Congress the Board noted that it had rendered 55,713 decisions and received 52,509 new appeals. These numbers show an organization barely able to keep up with the “in box.” Worse, the Board itself is projecting a sharp increase in the number of appeals. What the report does not address is that 76 percent of the cases appealed from the Board to the Court of Appeals for Veterans Claims involved a remand or return to the Board for further action.

The VA and some Veteran’s Service Organizations pushed Congress to pass appellate reform legislation in the 114th Congress. Known as the Veterans Appeals Modernization Act of 2016 and sponsored by Diana Titus D-NV, he proposed legislation would have stripped the veteran of key due process rights. This included the termination of the VA’s duty to assist the veteran at the appellate stage and locking the veteran into a choice of whether he or she wanted a hearing at the time the appeal was filed. This often takes place before the veteran secured legal counsel. The Titus bill did not allow the veteran an opportunity to request a hearing at a later date. A version of this bill passed the House but was thankfully stopped in the Senate.

Not addressed was the fact that the Board has suffered from a lack of leadership as it has been without a Chairperson since 2010.

This leadership vacuum was filled by several “Acting Chairpersons” who initiated new and sometimes conflicting policies. Appointment of a permanent Chairperson needs to be a priority for the new Administration.

The Titus Bill ignored the systemic problems within the board. It is an archaic and burdensome process that delays rather than accelerate appeals. The board has refused to learn from other federal adjudication systems, instead developing a unique system. Unfortunately, in trying to re-invent the wheel they have come up with a square product.

Unlike any other federal adjudication system, the decision makers are not certified Administrative Law Judges. These “Veterans Law Judges,” as they like to call themselves, are never held accountable for incompetence. Despite an unreasonably high remand rate, the Secretary “rubber stamps” their annual certification.

Unlike every other system, the board does not allow electronic filing. Veterans or their attorneys must print evidence from digital files to submit printed documents to the board. Evidence is delayed by the irradiation process that examines all federal mail, sent to a central mail room and finally forwarded to the Board to be scanned back into a digital format. To ensure that the submitted material is placed in the veteran’s claims file, another hard copy must be sent to the central scanning facility in Janesville, Wisconsin. If the VA would only adopt electronic filing, using available off the shelf software, weeks could be cut from the appeals process.

Currently dates for hearings or due dates for evidence are arbitrarily chosen by the Board without consultation with the veteran or his or her attorney. This leads to conflicts. Motions to Continue must be filed by mail or fax and are often unanswered.

Other federal adjudication systems schedule pre-hearing conferences immediately after the appeal is filed. The Judge assigned to the case will provide instructions on the process, allow the claimant time to obtain an attorney and consult with all concerned on evidence cutoff and hearing dates. Contact information is exchanged and electronic filing is encouraged. As a result, those processes runs smoothly. The VA has rejected that approach.

While these remedies will help future appeals, the large appellate backlog remains a concern not addressed by the Titus bill. Current law allows the Chairperson to temporarily appoint VA employees to supplement the board. This needs to be changed to allow the temporary appointment of other qualified personnel. Retired Military Judges could be selected , and allowed to hear and decide local appeals at the Regional office nearest to their home. Training could be accomplished in just a few days. Military Judges are trained to gather evidence and make quick and correct decisions. They also possess an understanding of the military — something that is often lacking within the board.

While reforming VA health care is important, the new Administration cannot ignore the appeals system. Even with the best health care system in the world, the veteran cannot receive service connected quality treatment until he or she has their claim approved.

Commander John B. Wells served in the United States Navy for 22 years retiring in 1994. Since then he has become an attorney practicing military and veterans law. For the past six years he has advocated for veterans legislation and serves as Executive Director of Military-Veterans Advocacy. 

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