Recently, the Secretary of Veterans Affairs advised Congress that it must do something to reduce the time it takes for a veteran’s appeal for disability benefits to be resolved.
As of January, an estimated 400,000 veterans had appeals pending with the Veterans Administration. It takes an average of 1,000 days — nearly three years — for these appeals to be resolved, according to news reports.
Proposed legislation, HR 800, also known as the The Express Appeals Act, would give veterans the option speed up that process, instead of going through a traditional appeal. While we support fast-tracking veterans’ appeals, there’s a better way to do it than what has been proposed in HR 800 and the similar Senate Bill 2473.
We are in agreement with NOVA, the National Organization of Veteran’s Advocates, that there are three major problems with HR 800:
- The bill would create two separate tracks for appeals
- To get an express appeal, the veteran must waive the right to submit additional evidence;
- There is a very real possibility that this bill will mislead veterans to believe that if they give up their right to submit further evidence, then their appeal will be heard sooner.
A better solution to the backlog problem, which I recently outlined in a letter to U.S. Senator Richard Burr, would not prevent veterans from submitting new evidence once a fast-track appeal is submitted.
In short, a veteran files an files an initial application for benefits. When that is denied, they file a Notice of Disagreement (NOD). The regional office VA then reviews the claim and a new decision is made.
If the claim is denied again, as is typically the case, the VA then issues a Statement of the Case. The veteran has to file a VA9 form appeal, which takes the claim to the Board of Veterans Appeals for a hearing.
I believe the notice of disagreement, or NOD step, is unnecessary, is not productive and is inefficient. Eliminating this step in the appeal process will save time and money, while still protecting the rights of the veterans.
In my proposed scenario, after a veteran’s claim is first denied, he or she would file a VA9 appeal. The regional VA office would then be required to review the appeal within a time certain (which would require amending the law) and issue a statement of the case. The statement of the case would be the VA’s argument supporting its denial of the claim.
Next, the veteran would have the opportunity to submit additional arguments and evidence in response, up to the point where the Board of Veterans Appeals reviews the appeal. This scenario eliminates a step in the process, and saves time and money, but not at the expense of the veteran’s rights.
As it stands now, the Notice of Disagreement stage of appeal process seems more of a rubber-stamp of the VA’s initial denial of a claim.
The Secretary says the VA is working to clear its backlog of cases.
However, most efforts to eliminate the backlog have been aimed at initial claims, not appeals.
In the last three years, claims pending for four months or more dropped from 612,000 to as low as 80,000 this week. In that same time frame, the number of appeals has risen by more than a third, to 440,000 cases. Resolution of these appeals is averaging more than two years, which is too long for veterans to wait for medical treatment and benefits they are entitled.
Eliminating the Notice of Disagreement step in the process could help, but the Board of Veterans Appeals needs to be prepared to handle those cases when they reach them for adjudication.
I believe decentralizing the Board of Veterans Appeals would also help the process.
Similar to the Social Security system, Veteran Law Judges could be assigned to regional VA offices. This would reduce the number of veterans who have to travel to Washington DC, for an appeals hearing, wait for a video conference hearing or wait for a traveling Board hearing. This would help to further reduce the backlog and ensure that veterans get their benefits sooner.
Additionally, assigning BVA judges to regional VA offices would give them more opportunity to train ratings specialists on the issues they see as slowing down the claims process.
I realize that the VA may not yet be ready for such an undertaking, but I do believe that it is an issue worth considering to more effectively and timely resolve pending veterans ‘ disability claims.