VeteransFirstActYesterday, the leaders of the Senate Committee on Veterans Affairs held a press conference to announce that they had reached an agreement on a piece of legislation that would bring changes to many areas of the VA. The bill, known as the “Veterans First Act,” is the product of intense negotiations among Senators from both parties in recent months. The 391-page bill contains provisions dealing with accountability, healthcare, compensation, education, homelessness, and more. Below, we’ve summarized some of the key provisions.

Accountability

If you’ve been following the various VA scandals in recent years, then many of the bill’s provisions concerning accountability may sound familiar to you. The Veterans First Act would give the VA Secretary more authority to hire and fire employees, and allow him to make his personnel decisions more quickly. It would also limit the amount of time that employees can be placed on “paid administrative leave” to prevent bad actors from collecting government salaries during lengthy investigations. Under the bill, healthcare executives who lead a VA medical center would be entitled to significant pay raises to match what they would earn in the private sector. Perhaps most interestingly, the bill would establish an independent office within the VA known as the “Office of Accountability and Whistle-blower Protection.”

Health Care

Regarding healthcare, the proposed legislation would require the VA to make prompt payment to private facilities that have agreed to participate in the Veterans Choice program. This provision was likely included in response to the many headlines alleging that the VA owes millions of dollars to outside facilities, and that some private providers were electing to abandon the program altogether because they weren’t being paid. The bill would also expand the rules allowing family members to serve as caregivers for severely disabled veterans, and make it easier for the agency to hire mental health professionals. Additionally, the bill would attempt to address the over-prescription of opiate painkillers.

Disability Compensation

The proposed legislation would require the VA to launch a voluntary pilot program under which veterans who opt-in are forbidden from submitting additional evidence after filing a Notice of Disagreement. In exchange for giving-up this important right, veterans in the pilot program would skip the issuance of a Statement of the Case and go straight to the Board of Veterans’ Appeals where they would receive a final decision within one year of filing their Notice of Disagreement. The bill would also make it easier for the survivors of recently deceased veterans to receive benefits, and would increase the oversight of VA Regional Offices by permitting reviews by the Government Accountability Office.

Education & Employment

The Veterans First Act would expand the availability of Post-9/11 GI Bill funds to mobilized reservists, and authorize additional educational benefits to the spouses and children of veterans. It would also permit the VA to reinstate a veteran’s educational benefits in the event that the school the veteran was attending permanently closes. The bill would also require the VA to coordinate with the Department of Labor and state agencies to help increase the availability of jobs for veterans, and would require a non-governmental study of job counseling, training, and placement services for veterans.

Homeless Veterans

Homelessness among veterans has been a widely-discussed topic in recent years, and the proposed legislation aims at further reducing the number of veterans without a roof over their heads. Among the provisions of the bill is one would would expand the definition of “homeless” to include those veterans who are escaping from domestic violence, thus increasing the availability of benefits and services to such veterans. The bill would also expand the eligibility of the Department of Labor’s Homeless Veterans’ Reintegration Program and authorize the VA to form partnerships in order to provide legal services to homeless veterans.

U.S. Court of Appeals for Veterans Claims

The proposed legislation would once again reauthorize the temporary expansion of the Court from seven to nine judges through the end of the year 2020. This represents a compromise from what has been proposed by several lawmakers and veterans’ advocates which would make the increase to nine judges permanent. Additionally, the Veterans First Act would change some rules concerning the availability of certain benefits for judges, and would alter the manner in which the Chief Judge of the Court was determined.

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Overall, we are pleased with the provisions of the proposed legislation. We will say that we were somewhat surprised that the bill does not contain a complete overhaul of the Veterans Choice program, which has drawn much scrutiny for its failure to reduce the delays veterans face in receiving healthcare. The expansion of the Veterans Court is an important step, but we’re disappointed that Congress hasn’t decided to require more decision-makers in the locations they are most needed: at the Board of Veterans’ Appeals. Finally, we’re skeptical of the proposed pilot program for streamlining the appeal process because, simply put, it misidentifies the problem. The issue with appeals has never been that veterans are bogging-down the process by submitting new evidence, its that the VA doesn’t have adequate procedures or sufficient staff to handle the number of claims it receives. Thankfully, for now at least, the Pilot program is only a test.

The bill represents only a proposal from the Senate, and differs in some key ways from what has been proposed over in the House. We expect there to be some changes to the ultimate legislative package that reaches the President’s desk, and we will do our best to keep you posted on future developments.

VAOIGWe all get unwanted magazines, advertisements, and credit card offers in the mail. I usually let them pile up in my kitchen for while until I decide to just throw out the lot of them. A new report from the VA’s Office of the Inspector General reveals that the VA’s St. Petersburg Regional Office has taken a similar approach to mail it receives from veterans who have filed claims for benefits.

According to the report, investigators “observed a large amount of hard copy sensitive veteran information haphazardly commingled with contract company documentation, excess office furniture, and empty computer boxes that appeared to be trash.” The report concluded that the problem appeared to be a consequence of the St. Petersburg VA’s failure to make adequate arrangements for the processing of mail it received.

All told, the investigation found that more than 41,900 mail packages were allowed to pile-up. According to the anonymous tipster who initially brought attention to the problem, due to the delay in opening mail and adding it to the system, “claims were processed in the absence of supporting evidence.” This allegation, coupled with the findings from the Inspector General, offer credence to the notion that the VA’s recent efforts to reduce the backlog of claims has resulted in a push for quantity rather than quality.

The report also raised concerns about security protections for the VA mail and records that were sent to the private facility for processing. The report indicates that they observed “malfunctioning video surveillance of the rear storage area, employees freely roaming in this area, and adjacent unlocked … exit doors to the outside of the building.” This means that just about anyone would have been able to access or even steal confidential information about thousands of veterans, including their social security numbers and medical records.

While this report is alarming for all veterans, those living in Florida should be especially concerned. Not only has the VA exposed them to potential identity theft, it has been deciding claims without reviewing all the evidence that has been mailed to them by veterans. We would encourage any veterans in Florida who have had their claims denied to file an immediate appeal to protect their rights from being squashed by what appears to be a severely mismanaged VA regional office.

CapitolAs I’ve said before, despite an apparent decrease in the amount of delay that veterans face to receive an initial decision, veterans who choose to appeal such a decision face ever-increasing delays. There are a range of ideas floating-around out there about how the VA can fix the enormous backlog of appeals. Today I want to take a minute to take a look at some of the proposals that our elected representatives have put-forth to tackle the real backlog.

CREATE A TASK FORCE

The first member of Congress to take a stab at the backlog this year was Representative Dina Titus of Nevada. Titus’s proposal is for the establishment of a task force to study possible improvements to the appeals process. The task force would then report on its findings to the VA and the VA would be required to either implement those proposals or explain why it will not do so.

While I’m certain that Representative Titus’s proposal is well-intentioned, it lacks any concrete plan for action. As we have seen time and time again, the VA does not act to improve itself unless it is explicitly directed to do so by Congress. Against this backdrop, merely establishing a task force that makes polite suggestions to the VA is not likely to result in any material changes within the agency and, consequently, would do little to reduce the backlog of appeals.

Certainly, we need to know exactly why it takes so long for an appeal to be finally decided by the VA, and a task force might go a long way toward getting us that information. Yet when it comes time for action, Representative Titus’s plan simply does not have the teeth to get the job done.

FAST TRACK APPEALS

Another proposal to tackle the appeals backlog comes from Representative Beto O’Rourke of Texas. O’Rourke’s proposal would establish a voluntary pilot program where a veteran can opt to submit a “fully developed appeal” in lieu of the traditional notice of disagreement. Essentially, the program would require veterans to submit all the evidence they believe is needed to support their appeal along with an argument supporting their disagreement at the time they file an NOD. Thereafter, they would not be permitted to submit additional evidence.

Based on my experiences, I believe Representative O’Rourke’s proposal misidentifies the problem that needs solving. While it certainly might cause a minor decrease in delays to require a veteran to submit all their evidence and argument at the same time, my observations convince me that the largest source of delay in the appeals process is caused by the VA itself. Indeed, one need only look at the VA’s own data to see that veterans account for an average of 39 days of wait time compared to the VA’s 1,368 days.

Significantly, systems that begin as “pilot programs” often become standard operating procedure down the line. Were that to happen with this piece of legislation, veterans would be barred from presenting evidence or argument, no matter how meritorious, after the submission of their NOD. Such a rule would be fundamentally unfair in a bureaucratic and complex legal system where veterans often operate without the benefit of any assistance at all, let alone a competent attorney. Stated simply, Representative O’Rourke’s proposal does far more harm than good.

SEND APPEALS TO BOARD FASTER

The final proposal I would like to look at was made by Representative Robert Latta from Ohio. Latta’s proposal is simple: it requires the VA to send a veteran’s case to the Board within one year of receiving the form completing the appeal.

This proposal does not sound like much, but under present circumstances, it would be quite significant. As I explained previously, the stage of the appeal process that is most prone to delay occurs after a claimant submits the form completing his appeal. All the VA must do during this period is drop the claimant’s VA file in the mail, although in practice the VA often uses this period to do additional work that should have been completed earlier. On average, it takes the VA 681 days to wrap-up work on an appeal and forward the case to the Board. Under Representative Latta’s proposal, this delay would be cut in half.

While not earth-shattering, this is the only of the three proposals which would meaningfully reduce the amount of delay associated with filing an appeal. To be sure, this proposal would only impact one of many possible sources of delay. Nonetheless, something is better than nothing and Representative Latta’s proposal would shave 325 days off of the protracted appeals process for the average veteran. If we could only couple this proposal with a plan to eliminate the Statement of the Case, we would cut the average delay in half.

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A lot could be done to reduce the appeals backlog, and at least one member of Congress has the right idea. Nonetheless, several of the proposals coming from our elected representatives would not significantly reduce the appeals backlog or reduce the years of delay faced by veterans who disagree with an initial VA decision. We must therefore conclude that Congress shares at least some of the blame for the broken appeals process.

I’ve said it before, and I’ll say it again: when it comes to decision-making, the VA places quantity ahead of quality. There is perhaps no better example of this dangerous philosophy than the Board of Veterans’ Appeals’ Fair Share program.

The Fair Share program is essentially a performance-measuring system which requires the attorneys who write Board decisions to complete three decisions every week of the year, regardless of circumstances. Once you consider things like federal holidays, family vacations, sick days, or workdays devoted to other tasks, many of these attorneys end-up needing to produce one decision every workday in order to avoid disciplinary action.

Unsurprisingly, the result of these quotas is a decrease in the quality of decisions. James Ridgway, a senior official at the Board, has written that “there is ample evidence that adjudicators at both [the Board and VA Regional Offices] are required to decide a high number of claims each year, which makes it hard to produce quality decisions.”

One of the more troubling aspects of the Board’s Fair Share quotas is that the system does not differentiate between simple cases and complex cases. For example, a decision-maker is given the same amount of credit for writing a 50-page decision deciding 12 claims as he or she would receive for writing a 4-page decision addressing a single claim. The Board’s attorneys have complained that such a system does not permit them “to efficiently manage their own case load” and can require them to “work unpaid overtime during nights and weekends” in order to avoid disciplinary actions.

Fair ShareThe Fair Share program has been around for years, yet we have not seen a significant reduction in the amount of time that veterans must wait to receive a Board decision. With the exception of a couple years, the amount of wait time associated with a Board decision has trended upwards since the mid-1990s. Such statistics clearly show that the Fair Share program has not worked.

The Fair Share program is an ineffective tool to ensure that veterans receive the timely decisions that they deserve. Not only has it not reduced delays, but it has prioritized the issuance of a high quantity of decisions ahead of the issuance of quality decisions. It is time for the VA to abandon the Fair Share program as it currently exists, and find a more functional system under which decision-makers are not threatened with termination for not meeting unrealistic quotas.

Certainly, there needs to be some type of performance evaluation system for Board decision-makers. After all, a Board employee who issues only one decision per year does not deserve a government salary. Yet the current system is hopelessly broken. The easiest answer for the underlying goal of decreasing delays is to simply hire more people to issue Board decisions. Doing so would decrease the burdens on current decision-makers. Moreover, it would allow decision-makers to take more time to more carefully consider the appeals they are presented and would result in the high-quality decisions that veterans surely deserve.

On Friday, I told you about the enormous delays associated with filing an appeal after the VA denies a claim. After I posted that story, a letter arrived in our office suggesting that the delays associated with filing an appeal are far-longer than what is represented by the VA’s data. The letter so perfectly illustrates the problem of delayed appeals that I thought I would share it with you:

The Real Backlog-Part2Dear Mr. Ravin,

Thank you for your inquiry concerning your [client’s] appeal. We received your Notice of Disagreement on August 14, 2013.

Appeals are considered by the Appeals Team as promptly as possible, and in docket order. Currently, the Appeals Team is reviewing cases submitted in 2009 and early 2010. We expect your case to come up on the docket for review in the next 12-24 months.

We recognize that the appeals process can be lengthy and we remain committed to completing cases as quickly and accurately as possible. We apologize for the inconvenience that this may cause you and appreciate your patience and understanding during this time.

Sincerely Yours,

RO Director

This letter raises a number of concerns about the true nature of the VA’s backlog. Just the other day, the Secretary of the VA announced that his agency had reduced the backlog “by almost 90percent.” What the Secretary was referring to in his remarks was the reduction in the number of claims awaiting an initial decision from the VA and, indeed, the VA proudly touts the fact that the number of claimants waiting more than 125 days for an initial decision has fallen from over 600,000 in March 2013 to just over 75,000 today. What the Secretary’s statement, and indeed most coverage of the claims backlog, fails to account for is the tremendous wait associated with filing an appeal of an initial decision.

As I noted the other day, according to data published last year, it takes the VA, on average, 330 days to issue a Statement of the Case after a claimant files his Notice of Disagreement. However, according to the letter we received regarding our client’s case, it will take the VA between 1,184 days and 1,549 days to issue a Statement of the Case under the current circumstances. More troubling, the letter suggests that, as of November 2015, the VA is still working on appeals received in “2009 and early 2010,” which amounts to a delay of over five years.

What accounts for the enormous disparity between the VA’s published 330-day delay and the projected delay over 1100 days in this case? This is a difficult question to answer. One possible explanation is that the VA’s concerned efforts to reduce the backlog of claims awaiting an initial decision has led to a spike in the number of appeals being filed, thereby increasing the amount of time veterans must wait to clear the first hurdle of the appeals process. The disparity could also be due to the fact that the 330-day figure is outdated, having been released nearly a year ago in the Annual Report of the Board of Veterans’ Appeals. The Board is expected to release its latest annual report by the end of the month and at that point we should be able to see whether the delays encountered by our client are unique to the Pittsburgh Regional Office which sent us this letter or are the new norm across the VA system.

As I said the other day, while the reduction in the backlog of undecided initial claims should be applauded, we cannot allow such progress to make us lose sight of other bureaucratic delays encountered by our nation’s veterans. If the letter discussed above is any indication, the backlog of appeals will be the next big scandal.

Average Wait Time in Days-2

Take a look at this chart. This is what the real VA backlog looks like. The chart shows you the average number of days that a veteran must wait in order for the VA to take a particular action on his or her claim, based on the most recent data available. The figure highlighted in orange represents the number of days, on average, that veterans wait to receive an initial decision on their claim for disability compensation. This is the number that we hear about all the time when we read about the backlog of VA claims.

The other three figures represent the average amount of time a veteran must wait to reach the three major milestones associated with filing an appeal after an initial rating decision. Unlike the four month wait associated with a rating decision, the average veteran waits almost four years to receive a final decision on his appeal. This is a sad fact that is mostly overlooked when we talk about reducing the “backlog” of veteran’s claims but it is equally important. A few simple changes could drastically reduce the delays associated with appeals.

First, forcing veterans to wait a year to receive a Statement of the Case is an unfortunate and entirely avoidable problem. As I have explained in the past, the only difference between a Rating Decision and a Statement of the Case, or “SOC,” is that the “SOC contains a section of ‘pertinent laws’ which is little more than an extensive collection of boilerplate language highlighting the legal authorities applicable to the denied claim.” Because there is no apparent reason the VA could not simply list the “pertinent laws” in an initial Rating Decision, the SOC is an unnecessary part of the appeals process that adds nearly a year of delay for veterans who file appeals. The SOC should be eliminated entirely, and doing so would reduce the average length of an appeal by 330 days.

What is most striking about the delays associated with appeals is not the fact that veterans must wait a year for VA to send them an SOC but that they must wait almost two years for the VA to do the simplest of tasks. When a veteran receives an SOC, he files a form to complete his appeal to the Board. Once the VA receives this form all it needs to do is send the appeal documents to the Board of Veterans’ Appeals in Washington. Inexplicably, it takes the VA an average of 681 days to simply put your claims file in a box and send it to the Board.

From time to time, I have heard VA employees attempt to justify the 681 day delay by arguing that veterans often submit evidence after filing their appeals and this requires the issuance of a supplemental SOC. Assuming this is accurate, the elimination of the SOC for which I have advocated would go a long way toward eliminating this perceived issue. In any event, the fact that a two-year delay is associated with such a simple task of putting some papers in the mail is symptomatic of a broken bureaucracy. The greatest reduction of the appeals delays would be accomplished by requiring the VA Regional Offices to forward appeals to the Board in a timely manner.

Lastly, it takes the Board far too long to issue a decision once it receives the appeal. While I can acknowledge that Board decisions are considerably more complex than initial Rating Decisions, I see no reason why it should take 250% longer to issue a Board decision than a Rating Decision. For one, Board decisions are drafted by highly-trained attorneys. Thus, while Board decisions are more complex than Rating Decisions, the people who write Board decisions are also more skilled than the individuals who write Rating Decisions. The VA has a stated goal of issuing initial rating decisions within 125 days and I believe it should adopt a goal to issue a Board decision in the same amount of time.

Because we often focus on the delays associated with receiving an initial decision, we end up losing-sight of the far more extraordinary wait times that veterans face when they appeal a VA decision. Worse still, while the VA has adopted goals aimed at reducing the delay associated with receiving a Rating Decision, I am unaware of any goals which would aim to reduce the appeals wait times. Until the VA adopts a holistic approach to tackling the backlog, it has only committed itself to fixing half of the problem. It’s time we stop settling for half measures.

Over the past few years, VA been pushing itself to whittle-down the backlog of undecided claims and decrease the amount of time that veterans must wait to receive a rating decision. While this is an important goal, there is reason to be concerned that the VA is simply sacrificing quality in order to issue Rating Decisions in a greater quantity. Indeed, veterans’ groups have expressed  concern that the VA is merely denying claims in order to improve the backlog statistics.

There is good reason to be worried about the accuracy of VA decisions. For instance, in materials used to train VA employees tasked with deciding claims, it is noted  that on average “between 11 and 12 percent of all VA’s claims decisions are appealed… irrespective of quality or production.” What this means, in other words, is that the VA is well-aware that it can prioritize quantity over quality and focus on issuing a greater number of decisions which may be riddled with errors because only one-in-ten Rating Decisions will ever be appealed.

Similarly, for many VA workers who decide claims, the failure to prioritize quantity over quality can result in losing a promotion or even termination. For instance, at the Board of Veterans’ Appeals attorneys who fail to issue 156 decisions each year, or about one decision every workday, run the risk  of being labeled “unsatisfactory” and losing their jobs. Alarmingly, a senior official at the Board has acknowledged that “there is ample evidence that adjudicators at both [the Board and VA Regional Offices] are required to decide a high number of claims each year, which makes it hard to produce quality decisions.”

To be sure, VA decisions have never been the gold standard of accuracy, but the recent push to increase the speed of decision-making is likely to further denigrate any level of quality control. While VA maintains that approximately 90 percent of its decisions are error-free, reviews conducted by veterans’ groups have suggested that less than one third of decisions are fully accurate. No matter which statistic you believe, it means that there is at the very least a one-in-ten chance that the Rating Decision you received in the mail contains at least one error.

What can be done to force VA to place importance on issuing quality decisions? The answer is “very little” unless you are a member of Congress. Unfortunately, we have seen time and time again that the only thing that seems to motivate change within the VA is when their executives get hauled-before a Congressional committee to answer for the scandals that arise within the agency.

You can, however, avoid becoming a victim of VA’s push for quantity over quality by filing an appeal. This is, realistically, the best way to tell the VA that you deserve an accurate decision on your claim for benefits. Unless a VA decision grants you everything you wanted and more, there is a strong likelihood that filing an appeal will reveal a significant error made in deciding your claim. And you have nothing to lose by filing an appeal because the VA cannot lawfully reduce the amount of compensation you receive without jumping through some serious hoops.

It is unfortunate that the VA seems to think that the number of decisions it issues is more important than the quality of those decisions. But remember, you can fight-back by always filing an appeal.

On average, it takes the VA 138 days  to issue an initial decision on a claim. Under the current system, after the VA denies your claim you initiate an appeal by filing what is called a Notice of Disagreement, or “NOD.” Once the VA receives your NOD, they review all of the evidence again and issue a Statement of the Case, or “SOC,” which is simply a second decision on your appeal. It takes an average of another 330 days  to receive a SOC. After you receive the SOC, you are required to submit a “substantive appeal,” which then completes your appeal to the Board of Veterans’ Appeals.

As you can see, in the current system, VA must deny your claim twice and you must appeal your claim twice. Worse still, it takes nearly a year for the VA to issue its second denial.  This is not an efficient system.

The purpose of the SOC is to provide veterans with information on (1) the issues being decided, (2) the evidence considered by the VA, (2) the pertinent legal provisions applicable to the issues, and (4) the decision of the VA on each issue. Stated succinctly, an SOC is intended to provide an explanation for a VA denial so a veteran is in a good position to present his appeal to the Board of Veterans’ Appeals. In my experience, the only material difference between an initial Regional Office decision and an SOC is that the SOC contains a section of “pertinent laws” which is little more than an extensive collection boilerplate language highlighting the legal authorities applicable to the denied claim.

The SOC became part of the VA appeals process in the early 1960’s at the direction  of Congress. In creating the SOC, members of Congress wanted to “afford a measure of due process in the consideration and final adjudication of disputed claims for veteran’s benefits.” This is a noble purpose, and was appropriate in an era when the Department of Veterans Affairs operated in “splendid isolation.” But the landscape of the veterans’ disability compensation system has changed drastically in the past two decades. Since 1988, when Congress allowed judicial review of Board decisions, the Board is no longer the final hope for veterans who have had their claims denied. It’s time to modernize and streamline the VA appeals process.

As the first step in modernization, I propose doing away with the SOC. As I alluded to earlier, the only apparent difference between an SOC and an initial decision is that the SOC contains a long listing of pertinent legal authorities. I can see no reason why the VA cannot include this boilerplate language in its initial decisions. In addition to sparing veterans from waiting a year to receive an SOC, an initial decision which contains information on each law applicable to a claim would make it easier for veterans to understand the reason that a claim was denied.

Moreover, the institutional benefits to the VA would be many. For instance, while my proposal may add a slight burden on VA adjudicators by requiring them to include information concerning pertinent laws in an initial decision, it would entirely eliminate the need the need for VA employees to compile the redundant SOC’s that they have been issuing for the past fifty years. Many of the employees responsible for assembling an SOC could be reassigned to issue initial claims decisions, thereby reducing the backlog of pending claims and ensuring that initial decisions are issued in a timely manner.

With the elimination of the SOC, the claims process would remain otherwise essentially the same under my proposal. Once a claimant receives an initial decision, including the expanded section on legal authorities, he would have one year to either file an appeal to the Board and/or submit additional evidence in support of his claim. If he files an appeal to the Board, his appeal will be immediately forwarded to the Board where he can present new argument and evidence in the same manner he can today. If he submits additional evidence, the Regional Office would issue a supplemental decision on the claim which considers the newly submitted evidence. This new system gives flexibility to veterans to decide whether they would like to take another shot at convincing the Regional Office to grant benefits, or whether they prefer to immediately proceed to the Board.

As VA works to whittle-down the backlog of claims, many believe that a new backlog of appeals will result. My proposal would simplify the appeals process for both veterans and the VA, thereby reducing the amount of delay and frustration faced by veterans as they seek their well-deserved benefits.

Recently Judge William A. Moorman  of the U.S. Court of Appeals for Veterans Claims assumed “Senior Status”—a form of semi-retirement. With Judge Moorman’s departure from the Court, the number of active judges has been reduced to eight . Despite the growing number of appeals filed each year, Judge Moorman will not be replaced with a new judge unless Congress takes action.

To understand why Judge Moorman will not be replaced, one needs to look at the law. As designed by Congress, the Veterans Court is supposed  to be made up of “at least three and not more than seven judges.” However, due to the ever-increasing number of appeals, Congress passed a law  several years ago allowing the number of judges to be increased to nine. That increase was not permanent, and specifically prevented the appointment of any new judges to replace those who retire unless the number of active judges had fallen below seven. This means that Judge Moorman will not be replaced, nor will the next judge who retires or reaches the end of his or her term.

The potential consequences of allowing the number of judges on the Court to decrease are many. For instance, as VA works to whittle-down the backlog of claims, this will create more appeals which are destined to be heard by the Board and eventually the Court. As the number of appeals filed to the Court will surely increase, decreasing the number of judges to decide those appeals hardly seems like a wise move for Congress to make. Indeed, the filing of more appeals to a court made-up of fewer judges will inevitably lead to longer waits for veterans to have their appeals decided.

During a recent hearing, Senator Jeanne Shaheen of New Hampshire noted  that “over the past four years, the number of disability claims appeals received by the Board has increased 65 percent.” She argued that Congress should act to permanently authorize there to be nine judges on the Veterans Court, saying that “as we see unprecedented and unrelenting growth in the backlog of appeals, now is not the time to reduce our capacity to pre-2002 levels.” In a statement submitted to the Senate Committee on Veterans’ Affairs, Chief Judge Lawrence B. Hagel of the Veterans Court echoed Senator Shaheen’s comments regarding an onslaught of new appeals, stating  that “it seems likely… that the number of appeals filed at the Court will also rise further and stay high.” Chief Judge Hagel similarly urged Congress to authorize a permanent increase in the number of judges on the Veterans Court.

Currently pending in Congress is Senate Bill 1754, also known as the “Veterans Court of Appeals Support Act of 2015.” This bill would authorize the permanent expansion of the Veterans Court to nine judges. It would insure that the Veterans Court would be able to decide appeals more quickly, meaning that the delays encountered by veterans who appeal VA denials would not increase. Everyone here at brokenVA believes that this bill should become law, and you should support it too. To show your support, please click here  to find the contact information for your senators and urge them to vote in favor of Senate Bill 1754.

In the past several years, much has been made  of the backlog of undecided claims pending before the VA and the amount of time veterans were waiting to get a decision on their claims. At one time, it was estimated that there were hundreds of thousands of claims clogging the bureaucratic cogs at the VA. However, data from the VA reveals that the backlog may be shrinking considerably.

After outcry several years ago over the backlog and associated delays, VA began publically releasing statistics regarding the number of undecided claims. The most current data released by the VA puts the backlog at 72,623 claims, down from a high of 611,073 claims in March 2013.

To understand what this means, one must remember that VA only considers a claim to be part of the backlog if more than four months have passed without a decision. To get a better idea of the undecided claims pending, VA has released data showing that there are currently 368,771 claims awaiting an initial decision, which is less than half of the 883,930 claims pending in July 2012.  It seems that VA might be heading in the right directions, but there is still a long way to go.

Representatives from several prominent veterans’ organizations have stated that the reduction in the backlog may be artificial. For instance, representatives from both VFW and The American Legion have stated  that VA is fudging the numbers by excluding certain types of claims from the backlog. They point out that approximately 221,000 claims requesting to add a spouse or child to a veteran’s compensation are not counted in the backlog, resulting in artificially low statistics. Other critics  have argued that efforts to reduce the backlog has simply led the VA to deny more claims so that they won’t be counted as part of embarrassing statistics, leading to an increase in the appeals and creating a separate backlog at that level.

While I’m generally fairly critical of the VA, I will give credit where credit is due: If the statistics being published by the VA are accurate, we should applaud the efforts taken to reduce the backlog and delay in claims processing. However, there is one aspect of the VA’s numbers that I believe is misleading: the statistics do not consider a claim which has been denied and appealed to constitute a part of the backlog.  Unfortunately, as many veterans know, claims that have been denied an appealed are often the ones where delays are most pronounced. Indeed, once a veteran has filed his appeal to the Board, he will wait an average of 681 days  before the case is forwarded to the Board, and another 357 days before receiving a decision. Thus, I believe that VA should consider appeals in evaluating its backlog. Until we are allowed to see statistics on the backlog of appeals pending at the VA, we are only being told part of a much larger story.