MarijuanaMany reasonable people have differing opinions on medical marijuana. Most advocates argue that it offers a level of relief to patients that is unavailable from conventional pharmaceuticals, while opponents worry that it can lead to drug abuse. In recent years, an increasing number of states have made the move to legalize marijuana for medical and even recreational purposes, bringing these states into conflict with federal laws outlawing use of the drug. The legal tension between states and the federal government has placed the Department of Veterans Affairs in a difficult situation.

The case of veteran Robert Lee highlights the legal gap into which many veterans have fallen. Lee, a Vietnam veteran with arthritis and PTSD, uses medical marijuana to deal with the symptoms of his ailments. His VA doctor also prescribes him a small dose of opiate painkillers. He lives in Oregon, where medical marijuana has been legal since 1998, and where voters recently approved a measure to legalize the drug for recreational purposes. Yet, after a recent change of doctors at the VA facility where he receives treatment, Lee found himself in a tough spot.

Lee’s new doctor gave him an ultimatum: choose opiate painkillers or marijuana. According to Lee, his former VA doctor had gone as far as writing a letter saying that a small dose of opiate painkillers combined with marijuana was good for Lee’s health. Despite this, the new doctor told him that his dosage of opiate painkillers would be increased and that he must cease all use of medical marijuana. Lee says he is wary of increasing his dosage of opiates due to the risk of addiction and the fact that it has wreaked havoc on his liver. The doctor says he will not allow the combination of painkillers and marijuana to continue.

Studies have suggested that marijuana and opioids do not have dangerous interactions, and that when used in combination, the marijuana might actually enhance the effects low-dose opiate painkillers. Further, statistical analysis has suggested that the use of opioids with marijuana does not increase the risk of substance abuse. Thus, from this standpoint, it is unclear why Lee’s doctor would be reticent to allow the combination. However, with the existing legal conflicts between state and federal governments, it is understandable why a doctor employed by an arm of the federal government might be hesitant to allow a patient to use both opiates painkillers and marijuana at that same time.

Nonetheless, recent headlines have suggested that VA doctors are over-prescribing opiate painkillers to the detriment of veterans. In fact, one VA doctor in Wisconsin became known as the “Candy Man” for his liberal prescription of opioids. Congress taken notice of the problem and just this week legislation was introduced to curb the abuse of opiate painkillers among veterans. Still, the path forward for the VA remains unclear.

With the recent scrutiny of VA’s use of opiate painkillers in treating veterans, it is worth noting that a study has found that states that legalize marijuana have seen a decrease in opioid overdoses and a reduction in addiction treatment admissions. In other words, the use of marijuana appears to have curbed the abuse of opiate painkillers in states that have legalized medical marijuana.

And this brings us back to Mr. Lee, the veteran from Oregon. His VA doctor wants him to replace his marijuana use with a higher dose of opiate painkillers, a type of drug which is responsible for more deaths each year in this country than suicide, guns, or car crashes according to the CDC. At the end of the day, while his doctor may feel that marijuana is not the answer for Mr. Lee’s pain, it is clear that a better answer will not come from painkillers. As we work to solve the opiate epidemic among veterans, our lawmakers would be wise to look at Mr. Lee’s case, and to consider for a moment whether medical marijuana might be part of a solution, rather than part of a problem.

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.

***

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.

More often than not, Congressional hearings are excruciatingly boring. Today’s subcommittee hearing was no different. Luckily for you, I watched the hearing so you don’t have to. You can read my summary below. If however, you have a lot of time to kill, you can watch the full hearing above.

The Subcommittee on Health of the House Veterans Affairs Committee met today to hear remarks on a number of pieces of legislation which would impact healthcare for our nation’s veterans. The goals of these bills varied from decreasing wait times to improving care options for survivors of sexual assault. Given that these bills are very early in the legislative process, it is difficult to know what chance they stand at becoming law, but the fact that a hearing was held at all may be seen as encouraging.

ORourkeOne of the more interesting pieces of legislation discussed during the hearing was the Ask Veterans Act (H.R. 1319). To introduce his bill to the committee, Representative Beto O’Rourke of Texas (pictured) described how, after raising concerns about wait times with VA Officials, the VA told him that what he was “dealing with here are some cranky ornery veterans” and that  “some of these folks you just can’t make them happy.” Because something just didn’t add up between the stories he heard from veterans and the VA’s statements that the vast majority of veterans saw doctors within 14 days, he commissioned a study to determine whether the veterans he spoke with were exaggerating or if the VA was being misleading. His study found that “on average, veterans in El Paso waited over 80 days for a primary care appointment, and over 70 days for a mental healthcare appointment.”

Based on these experiences, O’Rourke crafted the Ask Veterans Act which “would simply require that the VA contract with an independent third party to assess true wait times.” Unlike some VA data which is essentially hidden from the public, O’Rourke’s bill would require the VA to “publish these reports publically on the web for everyone to see and to be held accountable.” This bill stands-out among those discussed during the hearing, and we are hopeful that independent oversight of the VA will become a reality through this legislation.

MosleyNext up was the Military SAVE Act (H.R. 1603) which would amend the Choice Act to allow veterans who were the victims of military sexual trauma to receive treatment at non-VA facilities. The most powerful testimony of the entire hearing came from Susan Moseley (pictured), a veteran who faced sexual assault by a superior during her service. After her discharge, Moseley faced a difficult life but, after sixteen years, was able to find a VA therapist who could help her. Unfortunately, due to staffing burdens, she could only see that therapist once every three weeks. “That was all the VA could offer us,” she said. The Military SAVE Act would answer the lack of specialized VA therapists by allowing survivors of military sexual trauma to seek outside treatment. As explained by LaRanda Holt of American Legion, “this is about trying to find the right treatment and therapy for every veteran, and in the case of [military sexual trauma], unique circumstances can shape treatment and therapy needs.” As people who have represented victims of military sexual trauma in our professional lives, we unreservedly support the Military SAVE Act.

RobyThe only legislation to face any obvious opposition from members of the subcommittee was the Failing VA Medical Center Recovery Act (H.R. 3234). The bill’s sponsor, Representative Martha Roby of Alabama, explained the goals of her bill by saying, “similar to how a state superintendent would take-over the day-to-day operations of a failing school, this legislation requires the establishment of highly-specialized teams to take over the day-to-day operations of the worst VA facilities in the nation.” According to Roby, the worst of the worst among VA medical centers would be managed directly from Washington until they were able to improve. Representative Phil Roe of Tennessee questioned the wisdom of the bill, observing that “just because the VA gets centralized doesn’t mean it gets better.” Citing issues with the Choice Act, Representative Roe expressed that he was “not sure making it more bureaucratic and putting it up to people who are in charge [in Washington] who weren’t successful to begin with is going to work.” While this legislation may sound good at first blush and has some admirable goals, we share Representative Roe’s concern that more bureaucracy might not be the right solution to the problem.

During its hearing, the committee also heard about bills that would address more technical concerns about the delivery of VA healthcare. Citing an instance where a veteran was nearly thrown from his vehicle due to an incorrectly installed chair lock and a case where a veteran’s bumper was ripped-off by a wheelchair lift, Representative Jackie Walorski advocated for her bill (H.R. 3471) which would impose licensing standards on contractors who install wheelchair lifts and similar equipment on vehicles for disabled veterans. Also addressed was a bill (H.R. 1904) aimed at increasing the number of professionals who create prosthetics for veterans by issuing grants to colleges and universities that establish programs to train such workers. Highlighting the importance of such action, the bill’s sponsor Representative Matthew Cartwright of Pennsylvania stated that the number of veteran’s requiring prosthetics has increased 300% since 2000, yet there is a shrinking workforce of professionals who create their prosthetics. The committee also heard testimony on a hyper-technical piece of legislation that would redefine the qualifications for Marriage and Family Therapists employed by the VA (H.R. 2639).

Also discussed were several proposals which have not yet been introduced, including legislation aimed at dealing with over-prescription of narcotic pain killers as well as a proposal that would better facilitate the VA’s arrangement of outside healthcare. We will be certain to keep you posted once ink meets paper on these proposals.

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.

By nearly any metric, the Department of Veterans Affairs usually fails to achieve its mission of caring for veterans.  I’m sure that there are many categories which could be measured, but what good is any measurement if the results are kept a secret.  I don’t trust the VA to be either transparent or honest about its metrics, but if VA were more transparent, it would be a lot harder to be dishonest about its measurements.

VA maintains detailed, internal measurements about its performance in a multitude of categories, but these statistics are neither revealed to the public nor readily available to public inquiry.  Indeed, the only time that most of VA’s internal statistics come to light is when they are revealed to legislators as part of testimony to Congress.

Congress can mandate transparency, and indeed, Congress has mandated VA transparency in the past.

A number of years ago, Congress passed a law that requires the Chairman of the Board of Veterans’ Appeals to publish an annual report.  Although there hasn’t been a Chairman at the Board for a number of years (which is a story for another day), the Board is still required to publish the annual report each year.

The Board is required to report its activities during that year and the projected activities of the Board for the current and subsequent years.  Further, the Board must provide very detailed statistics in a number of categories.  For instance, the Board reports the number of decisions it issues, and the disposition of those decisions.  For example, there were 10,876 denials of compensation claims in fiscal year 2014.

The report also lists the average amount of time it takes VA to complete certain actions.  For example, the Board reported that the average length of time between the filing of an appeal and the Board’s decision of the appeal was 1,038 days in 2014.  In other words, the Board reported that it took nearly 3 years to decide an appeal.

Of course, this statistic is important, but it’s terribly misleading.  It’s misleading because it doesn’t take into account the time it takes for VA to issue a statement of the case after receipt of a notice of disagreement, which is an average 330 days. If you add in this time, it takes the Board nearly 4 years to decide an appeal.

Now that VA has revealed these statistics, the question becomes “Should it take VA four or five years to decide an appeal filed by a veteran or a widow?”  Asked in a different way, should a disabled veteran who is homeless have to wait four or five years for VA to decide his appeal?  What if that veteran had to wait a year for VA to make the initial decision before he filed an appeal?  Is VA achieving its mission if a disabled veteran has to wait four or five years for benefits?

Metrics, the measurement of certain processes, are important.  VA compiles these statistics daily, weekly, and monthly.  They aren’t always honest about their numbers, but they are under no legal obligation to reveal their numbers publicly.  Perhaps by next Veterans Day, VA will be required to publish their compiled statistics weekly, monthly, and annually.  I call on them to do just that.

It all started innocently enough. In 1984 a veteran sought service connection for “residuals of a head trauma” sustained as the result of a car accident in the military. Thereafter, he was granted service connection for “head trauma with post traumatic headaches.” Fifteen years later he attempted to reopen the claim and asserted that “memory loss and depression” were among the “residuals of head trauma” he had claimed in the early 1980’s. After being granted service connection for a psychiatric disorder related to his head trauma, he argued that he was due back-pay on the claim because he had originally filed it in 1984 and the VA had never issued a decision on the psychiatric disorder when it decided the initial claim relating to head trauma years earlier.

After the argument was rebuffed by the Board and the Veterans Court, he appealed to the U.S. Court of Appeals for the Federal Circuit where, like a snowball rolling down a hill, his claim morphed into something frightening. The Federal Circuit held that the veteran was not entitled to back pay because his 1984 claim for a psychiatric disability related to head trauma had been silently denied when the Regional Office granted service connection for “head trauma with post traumatic headaches” without mentioning a psychiatric disorder. The Federal Circuit explained that when a “veteran files more than one claim with the [Regional Office] at the same time, and the [Regional Office’s] decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied.”

The rule announced by the Federal Circuit has come to be known as the “implicit denial” doctrine. The implicit denial doctrine states that “a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision.” In more simple terms, the implicit denial doctrine allows the VA to deny your claim without telling you. This rule is, without question, one of the most unfortunate developments in veteran’s law of the past several decades and, despite the best efforts of veteran’s advocates, continues to wreak havoc on meritorious claims for VA benefits. The mere existence of the implicit denial doctrine is wrong for a number of reasons.

First, the implicit denial doctrine is abhorrent to the Constitution. The Fifth and Fourteenth Amendments protect a citizen’s “Due Process” rights, and entitle citizens  to “notice and an opportunity to be heard” before the government deprives them of “life, liberty or property.” In the context of VA claims, Due Process should ensure that veterans are notified of the denial of their claim and that they are permitted to respond to the denial by filing an appeal. But it does not. Several groups of judges have specifically said that there are circumstances where a “reasonable person” might receive a decision explicitly denying a single claim and understand that the decision also constitutes the denial of another claim.

To see why a “reasonable person” would never understand a decision to deny more than what it says, one need only examine the information provided to veterans who receive a denial from the Board. For at least the past two decades, the Board has informed veterans who receive a denial that it “is the final decision for all issues addressed in the ‘Order’ section of the decision.” Because an implicit denial is necessarily not explicit, a claim which is being implicitly denied cannot appear in the “Order” section of a Board decision. This begs the question: Would a “reasonable person” who receives a Board decision which states that it is only a final decision on issues listed therein deduce that it is also a final decision denying another claim which is not mentioned? The answer to this question is a resounding “no,” and for that reason the implicit denial doctrine deprives veterans of their Due Process rights.

More fundamentally, the implicit denial doctrine is incompatible with the veteran’s benefits system because it is far too complicated. Indeed, the Veterans Court has defined a poorly-understood and legally-complex four-part test to determine whether an implicit denial has occurred. As the Supreme Court said, “Congress has expressed special solicitude for the veterans’ cause” by establishing an “adjudicatory process that is not truly adversarial” and making “clear that the VA is not an ordinary agency.” Indeed, “the VA differs from virtually every other agency in being itself obliged to help a claimant develop his claim… and a number of other provisions and practices of the VA’s administrative and judicial review process that reflect a congressional policy to favor the veteran.” Stated plainly, given that Congress could not have wanted to create hurdles or traps for unwary veterans seeking benefits, it is unimaginable that Congress would have intended to create an implicit denial doctrine.

And Congress is the key to solving this situation. The implicit denial doctrine was not created by our elected representatives but by the courts. It is nothing more than a legal fiction, and Congress has the power to change it. Not too many years ago, the Veterans Court created a requirement that a claim needed to be “well grounded” before the VA was required to assist the veteran by obtaining evidence to support the claim. Displeased by this, Congress passed a law and told the court to knock-it-off saying that they were “very concerned over this situation and the resulting potential unfairness to veterans.” The implicit denial doctrine, which allows the VA to deny a veteran’s claim without telling him, should shock the sensibilities of our elected representatives. It is time for Congress to step-up and undo the damage caused by the judicially-created “Implicit Denial” doctrine.

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.

For veterans who cannot work due to their service-connected conditions, there are essentially two methods of receiving a 100 percent rating. They can either be granted what is known as a “schedular” 100 percent rating based on their symptoms alone or, if they have not received a 100 percent rating, they can apply for a Total Disability Rating Based on Individual Unemployability, or “TDIU.” A TDIU  is a benefit where a veteran is paid disability compensation at the 100 percent level, even if his or her service-connected conditions have not been assigned ratings that reach that level. It is given to veterans who, due to their service-connected disabilities, are unable to get and hold a job that pays them a “substantially gainful” income. Getting a TDIU is much more difficult than it might sound.

For many years, the Veterans Court and veterans’ representatives were frustrated by the VA’s refusal to tell us what exactly “substantially gainful” meant. In the first few years of its existence, the Veterans Court complained  of the lack of clarity and called upon  the VA to better explain its rules regarding a TDIU. The VA never listened to the Veterans Court’s requests and finally, about a decade later, the Court decided to define “substantially gainful” on its own. The Veterans Court decided  that a “substantially gainful” job was “one that provides annual income that exceeds the poverty threshold for one person.” As a result of the Veterans Court’s decision, you cannot be granted a TDIU if you are able to earn more than $11,770  each year. This is, quite frankly, a horrible injustice.

There are a number of glaring issues I discern with using the poverty threshold as a metric to determine whether a veteran is capable of substantially gainful employment. First, from a policy perspective it would be downright depressing for a veteran earning slightly more than a poverty wage to be considered gainfully employed. The poverty threshold is meant to indicate whether a person is unable to support himself, not whether he is living the comfortable life that veterans surely deserve. Second, relying on the poverty threshold for a single person fails to account for veterans with families. Indeed, it is inconsistent with VA’s policy  of paying more compensation to married veterans with children to say that a veteran with a wife and two children is capable of supporting his family when he earns a mere $11,770 a year. Furthermore, the federal poverty threshold does not account for regional differences in the cost of living. We can all agree that it costs more to live and eat in New York City than it does to do the same in rural Oklahoma, yet a veteran living in a major city is considered to be earning a “substantially gainful” living if he earns the same amount as a veteran in rural America.

What is most striking about relying on the poverty threshold, however, is that VA compensation payments are supposed to be based upon  the “average impairments of earning capacity,” which for an unemployable veteran amounts to approximately $35,000 in tax free benefits per year. This means that VA considers a livable wage for an unemployable veteran to be equivalent to approximately $50,000 before taxes, but considers a livable wage for an employed veteran to be only $11,770. It seems incongruous to say someone has a “substantially gainful” job if they make $11,771 each year, but to pay a tax free $35,000 per year to a veteran who is not capable of “substantially gainful” work.

It is a sad reality that many veterans are unable to earn a decent living due to disabilities that they sustained in service to our country. This sad reality is worsened by the VA’s decision to say that a veteran who earns a penny more than the poverty threshold earns a “substantially gainful” living. This policy leaves many veterans in dire financial situations which is an unfitting reward for their service to the United States.