va appeals

Over the coming weeks and months, you are going to hear a LOT about VA Appeals Reform.

And those arguments are going to include numbers.

Numbers that all come from the same place:  810 Vermont Avenue.

It is becoming increasingly difficult to accept that the VA is not cooking the books on its appeals backlog numbers.

I’m going to lay 5 suggestions for ALL the stakeholders (Veterans, the VA, Congress, Advocates, etc) that I believe will eliminate the backlog altogether.

The Undeniable VA Pattern and Practice of Manipulating Data & “Disappearing” Benefits Claims to Make Numbers Look Good.

In the first half of 2015 alone, at least 4 VA Regional Offices have been found to have manipulated VBA claims data with an intent of making their numbers look better:

My inside contacts in other VA Regional Offices are telling me that the manipulation is  much worse in at least a half dozen other VA Regional Offices – someday, the roof is going to come off the operation at St. Petersburg VA Regional Office, for example, and nobody is going to like what they find there.

But let’s take a look at what’s happened in 2015 alone:

Houston VA Regional Office:

The Houston Chronicle reports that one VA employee – who “resigned” in February 2015 – “manipulated data on 81 [claims] apparently under pressure to meet production goals set by management and improve the appearance of his team’s pending claims inventory…”

That employee took a cool $2,648 bonus for his data manipulation (which he magnanimously  paid back when the investigative pressure was on).

You can download the VA OIG Report on the Houston Regional Office here:

[s3file s3url=”VAOIG-15-02354-220_Houston2015.pdf” ]Download File[/s3file]

We are saving these OIG Reports on our servers, due to the VA propensity to bury links and hide data over time 

Little Rock Regional Office:

KATV in Little Rock reports that the Little Rock Regional Office was manipulating data, too.

Here, VBA employees were adjusting the dates of claims to misrepresent the time required for VA Regional Office staff to process the claims, making performance look better than it actually was.

You can download the VA OIG Report on the Little Rock Regional Office here:

[s3file s3url=”VAOIG-14-03963-139_LittleRock_2015.pdf” ]Download File[/s3file]

Philadelphia Regional Office:

Same issue here – the Washington Post reports that the Philadelphia VA Regional Office manipulated data by back-dating claims to make their numbers appear better.

You can download theVA OIG Report on the Philadelphia Regional Office here:

[s3file s3url=”VAOIG-14-03651-203_Philadelphia_2015.pdf” ]Download File[/s3file]

Honolulu VA Regional Office:

The Huffington Post reveals the same game being played in Honolulu.

After stating that a Honolulu supervisor was removing controls in the electronic record that are used to track and identify the progress of claims, the VA proudly declared that the Honolulu VA Regional Office had (during the time of the data manipulation) reduced their claims backlog from 6,059 in January 2013 to 2,692 in March 2015.

 

[s3file s3url=”VAOIG-14-03651-203_Honolulu_2015.pdf” ]Download File[/s3file]

Oakland VA Regional Office:

The San Jose Mercury News reports that the Oakland VA Regional Office – already one of the worst in the country – HID 13,184 Veterans’ claims to make their numbers look good.

You can download the VA OIG Report on the Honolulu Regional Office here:

[s3file s3url=”VAOIG-14-03981-119_Oakland_2015.pdf” ]Download File[/s3file]

 

It’s Time to Admit The Deceit in the Claims Backlog Numbers.

At some point, the VBA is going to have to accept that claims data manipulation is the NORM, not the exception.

I say that even knowing that there are good and decent people that work very hard inside the VBA to do the right thing

I say that even knowing that Congress bears a HUGE load of responsibility for the VA’s problems.

 

And Then There’s the VA Appeals Backlog….

On June 9, 2014, the VBA reported 276,445 appeals were “backlogged” as of June 9, 2014.

They promised us that the number would be going down.

A year later on June 15, 2015, the VA reported that number had grown to 305,992 appeals pending.

In their defense, the BVA bears a HUGE portion of the responsibility for this appeals backlog.

But even with these mounting numbers, the VA is proposing legislation that will make the backlog WORSE – not better.  They are calling it the “Fully Developed Appeal”… and it was so bad that many VSOs have withdrawn their support for it.

That number isn’t getting smaller. But first, let’s talk about what a VA appeal is.

You can download the VA OIG Report on the Oakland Regional Office here:

 

What is an “Appeal”

Any time that a Veteran disagrees with a VA Ratings Decision, they have an opportunity to challenge that decision through an appeal to the Board of Veterans Appeals.

When a Veteran disagrees with a decision of the BVA (aka, the “Board”), they can appeal to the Veterans Court. (aka, the Court of Appeals for Veterans Claims).

The VA tracks statistics on “appeals” – although one should not place much confidence in their accuracy.

Numbers in the VA translates into bonuses, so there is a vested interest in the VA to making the numbers look good.

In any event, it appears that the VA is only tracking appeals to the Board, and not appeals to the Veterans Court.

The number of VA Appeals is exploding.  Here  is a chart showing how MUCH it grew in the first half of 2014 (when the VA was clearing out the claims backlog, all they did was create an appeals backlog):

VA Appeals Backlog 2014 Chart

Why is there a VA Appeals backlog?

There are several reasons for the appeals backlog.  But they all turn on  the confusing, and mind-bogglingly complicated appeal process.  

Seriously, this process is absurd – in 7 years of representing Veterans, NOBODY has been able to convince me that this process is at all necessary, or helpful.

How does a Veteran appeal a VA Ratings Decision?

This process has so many steps that add NO value to the VA or the Veteran’s understanding of the appeal, the handling of the appeal, or the outcome of the appeal.

Step 1: 

The Veteran has to tell the VA that it intends to appeal, using a Notice of Disagreement.  The VA then acknowledges the Notice of Disagreement and either schedules a DRO (Decision Review Officer) hearing or issues a Statement of the Case (SOC).   According to the VA’s statistics on June 9, 2014,  it took an average of 401 days – 13 months – to issue the Statement of the Case (SOC).

Step 2:

If the VA and the Veteran can’t resolve the matter at a DRO hearing, the VA will issue a Statement of the Case (SOC).  The Statement of the Case is almost always a verbatim regurgitation of the Ratings Decision – it doesn’t tell the Veteran anything more, or less, than he or she learned in the Ratings Decision.

The Veteran then has 60 days – note the short deadline that the VA imposes on the Veteran – to file a VA Form 9.

Step 3:

Once the VA Form 9 is filed, the VA will certify the appeal to the Board of Veterans Appeals.  According to the VA’s statistics on June 9, 2014, it took an average  of 622 days – 1 year and 8 months – to simply tell the BVA that the case was ready for a hearing.  Here is a list of all the things you could do while waiting for your VA Appeal to get scheduled for a BVA Hearing.

Step 3A:  

The VA might decide that it wants to update its Statement of the Case after the Veteran files his/her VA Form 9…if it does so, it issues a Supplemental Statement of the Case (SSOC).  The VA publishes no statistics on the number or delays related to SSOCs.

Step 4:

Once the case is certified to the BVA, the BVA will schedule a hearing.  In Fiscal Year 2012 (the last year that the BVA has given us statistics), the BVA issued 44,300 decisions and conducted 12,334 hearings.

What happens to the VA Appeal at the Board of Veterans Appeals?

The BVA tells us that it has 4 “Decision Teams”.

Each Decision Team consists of a Deputy Vice Chairman (VLJ),  two Chief VLJs, 13 VLJs, two Senior Counsel, and approximately 75 staff counsel.

Assuming that the BVA apportions hearings and decisions equally across Decision Teams, that works out to the following numbers:

Appeals per Decision Team in FY 2012: 14158

Appeals per VLJ: 1089

Appeals per staff counsel: 188

That means that if each Veterans Law Judge is working a 40 hour workweek, and taking no time off, then that VLJ has about  has about 2 hours to spend on each appeal.

If I spent 2 hours on a Veterans Appeal, my work product would be subpar.

So it should come as no surprise that almost 80% of BVA Decisions that are appealed to the Veterans Court are sent back because they are – to be candid – less than the best work product attorneys (i.e., BVA Judges) are capable of producing.

5 Steps to Fix the VA Appeals Backlog.

We are going to need BIG changes….here’s some ways to get started:

#1: It’s Time to Admit the Problem.

It’s time to take the blinders off and admit that the VBA has a problem and that they are powerless to do anything about it.

I mean really, who’s going to get hurt by this admission?  Nobody.  The  VA doesn’t fire employees – it just doesn’t happen.

So let’s air the dirty laundry and all acknowledge the elephant in the room.

The VA culture of data manipulation – a culture that at best is flippant towards the problem of data manipulation and at worst is approving of these fraudulent practices – must be acknowledged, admitted and rejected by all stakeholders: VBA, Congress, the Courts, VSOs….EVERYONE.

If we cannot admit the problem, we cannot find the solution

#2: We Need to Rebuild the Appeal Process.

This appeals process is just ridiculous – it’s designed only to take time and protect the VA’s interests, and that is all it does.

It’s time to scrap it altogether – not band-aid it with “pilot” programs.

The byzantine process and timeline is a relic of the post World War II era, and not reflective of the most efficient ways that justice can be timely delivered.

If you are a legislator, and would like to hear my proposal on how to completely rebuild the appeals process,  shoot me an email at support@veteranslawblog.org – I’d love to show you a SIMPLE path to reforming the VBA and BVA.

#3: Give Veterans & Advocates Immediate Access to their VA Files.

The VA needs to give real transparency into its databases and numbers.

They claim to have this fabulous database – a repository of all data that is claims related – yet they won’t let anyone see it, access it, or use it.

What they do give to Veterans’ advocates is a “1990-style-not-quite-a-real-VPN” access, but only after going through decades of training, signing of forms that are meant for employees and government contractors, and forcing attorneys to give the VA unfettered access to our computer’s data – revealing not only attorney client privileged information, but also trade secrets about law firms and their employees.

It is absolutely absurd that, in 2015, I cannot log in to a secure Claims Management Portal and view, download, upload, and save, forms and claims in my clients’ cases.

It is absolutely absurd that the VA’s attorneys at the Court can see 10-20% MORE of the records in a a Veterans case than I can.

The Federal Courts have been using a reliable system for sharing files in cases for decades using the ECF system.

It’s not that hard, folks.  But there is big money in Veterans, and VA executives have figured out how to milk the cash cow.

But when 60 to 70 year old men that neither embrace or understand the power of big data, automative technology, or socially interactive technology, are running the show at the VBA, we are going to get  solutions that would have worked really well 60 to 70 years ago.

(We once asked one of the Top 3 people at the VBA why Veterans can’t electronically sign their claims using the near universally accepted Docusign tool.

The official’s – VERBATIM – response?

“What’s Docu-sign?”

#4: It’s Time to Let Attorneys represent Veterans from “Soup to Nuts” in  a VA Claim.

Attorneys know how to develop cases, present evidence, and analyze the law.  Its our job. It’s what we are trained to do.

But attorneys are barred from helping Veterans at these early stages – not by law (although the VA’s un-American rules prevent attorneys from charging Veterans a fee for any work we do at the Regional Office before a Ratings Decision).

This is as absurd a concept as:

Suggesting your Auto Insurance company had to provide free coverage until they denied your claim.

Suggesting you didn’t have to pay for a car until it stopped working.

Suggesting you don’t have to pay a bank any fees until they don’t pay you interest.

What’s the rationale for the VA’s refusal to allow attorneys represent Veterans at the initial claims level?

I think it has to do with the fact that the Pension Poachers so abused Veterans that, because many of these clowns were attorneys, the VA is really scared of attorneys.

There are also 2 other categories of attorneys who engage in practices that the best and most reputable and most highly trained Veterans’ advocates categorically reject:

* Charging fees for “pre-claim consultations”

* Big “Legal Mills” that take in a ton of claims and sit on them until the VA makes a decision and pays a fee.

To the Powers-that-Be in the VA – these are not accepted practices among reputable attorneys.  And the reputable attorneys are policing our own.

I personally have had discussions with 2 advocates who had no place representing Veterans and discouraged them from continuing certain practices which were at best uncommon, at worst unethical.

What’s more…. if I as an attorney could charge a reasonable and low flat fee to Veterans to help them develop and prove up their claims, this backlog would not exist.

Veterans would pay less in attorney fees over the life of their case, because I would prepare the case to win at the lowest level possible.

In fact, I would set a pricing structure that would charge the Veteran LESS over time – encouraging my attorneys to do MORE to win early.

Why?

Because I know how to build an efficient system that delivers what the client wants (the benefits they deserve) in a way that satisfies our VA customers (minimal VA work and shortened timelines).

But that’s another topic for another day.

 

#5: Veterans Own Some of the Backlog, too.

I am not going to let my brothers and sisters in arms off the hook here.

Veterans can work to improve the quality of their claims.

I have seen, in 8 years of writing this blog, that Veterans who are educated about the VA Claims Process and VA Benefits law, and given basic help/tools to write more clearly and better organize their claims get faster decisions and better decisions.

Veterans – take a look at my 8 Steps to Improving your VA Claim.

Learn how to PROPERLY develop your own VA Claim.

Of all these solutions….this last one bears the most promise.

I have not SEEN the others gain traction because of the lack of money in the politics, and the entrenched positions and self-interest of the VA middle managers and bureaucracy.

I HAVE seen Veterans that Take Back the Power in their Claims and Appeals get out of the VA Hamster Wheel in months, not years.

With ratings that reflect the actual degree of disability.

Leaving the Veteran feeling good about the VA.

And in the end, that’s what we all want:  Veterans feeling like they have a Real Partner in their Reintegration to Civilian life….not an adversary that protects its own bureaucratic self-interest.

Tell me YOUR ideas for fixing the VA in the comments below!

2 Comments

  1. Paul Doss SR

    Chris, as an attorney you have an edge…now is the time to strike while the iron is hot…send Sloan Gibson (acting VA Sec) a letter stating it’s your belief that the claims backlog is as rigged and more phony than the VA’s medical backlog. Also send a CC copy to Congress ( the house ways and means committee for military (may not be the right house but you get the idea. If they get a letter from an attorney like you they will definitely look into the backlog as the VA did by falsifying records. (cooking the books) Mine was remanded by the BVA back to the RO in Sept 2013…haven’t heard a word since?? My 4 appeals have been pending since 2008 one from 2003…Go Figure..let me know what you think..I truly believe Washinton will want to dig deep on this most important issue that’s affecting most vets like myself…Thx Paul D [removed contact information…Editors].

    Reply
    • Chris Attig

      Paul, we will certainly do that. The thing is, though, the VA knows about the problem. There was recently a hearing before a Congressional Subcommittee in which the bulk of the testimony was supportive of removing the convoluted appeals process. Guess who blocked it? The VSOs.

      Its my opinion that they know that younger vets aren’t joining their organizations any more, and that as soon as the process is streamlined, they will lose all influence….so they need the system to stay screwed up to justify their existence to a new generation of Vets.

      If the VA benefits process is modernized, then groups like the DAV have nothing to offer our newest generation of Veterans. So they fight change and improvements.

      Chris

      Reply

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