Wednesday, January 28, 2015

Delay in VA Appeals - Some Helpful Suggestions

Last week, Ken Carpenter, a founding member of the National Organization of Veterans’ Advocates (NOVA), testified on the Hill before the House Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs.  

Mr. Carpenter cited many of the statistics that are troubling to practitioners in Veterans Law: after the VA’s adjudication process at the Regional Office level 40% of cases are remanded from the Board of Veterans’ Appeals back to the Regional Office for further development ; over ½ of cases heard at the Court of Appeals for Veterans Claims are remanded for further development; and the inordinate amount of time it takes a veteran’s claims to travel from the Regional Office after a substantive appeal is filed to the time a decision is given by the Board. 

When looking at all the delay and what appears to be ineffectual development of cases at the regional office levels, Mr. Carpenter suggests on behalf of NOVA some very interesting changes to the VA process.

1)     NOVA recommends Congress eliminate the requirement of the VA to issue a statement of the case and the requirement of the veteran to file a second appeal to the Board of Veterans’ Appeals (the VA Form 9).  This would mean that the Notice of Disagreement sent in by a veteran letting the VA know the vet disagrees with a decision would be the only appeal necessary to go to the Board.  Current numbers reported by the Board and the Court indicate that removing these two steps could remove THREE YEARS from the current process.  (see the Board’s most recently available report here:  http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2013AR.pdf  and the Court’s here: http://www.uscourts.cavc.gov/documents/FY2012AnnualReport.pdf )  In my experience, most of the Statements of the Case issued copy large portions of the CFR (up to 40 pages sometimes) and send them to the veteran in order to educate the veteran about what is necessary to prove her claims.  Then the Statement parrots the same language as the initial decision the veteran received.  It does seem that this process has lost its purpose somehow and could stand to be revised or eliminated entirely.   

2)     Second, Congress should require the VA to certify and transfer a claims file in an appeal to the Board no later than 60 days after the VA’s receipt of a substantive appeal (Form 9).  It currently takes 18-24 months for this to occur.

3)     Third, Congress should amend statutes to make certain that remands from the Board and the Court to the Regional Office are treated with the utmost urgency.  There is an extraordinary amount of delay in this area.  The Board’s annual report for 2013 indicates that after remand it takes a year for the Regional Office to complete the order.

 

These suggestions really reveal the extent of the delay built into the system in three points of the appellate process that someone who does not live and breathe the minutiae of veterans’ law practice might not understand.  Congress needed to be alerted to the issues and given specific methods to deal with them that aren’t drowned out in the cacophony of complaints about how long the process is taking for veterans with no clear guidance on how to fix it.  Now, it will be interesting to see how Congress responds. 

You can find Mr. Carpenter’s testimony here: https://veterans.house.gov/witness-testimony/kenneth-m-carpenter

 

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