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Veterans Law

CCK Takes Legal Action Against the Department of Veterans Affairs

July 1, 2022
Updated: November 21, 2022
CCK takes legal action against va

In this post, we are explaining CCK’s decision to take significant legal action against VA on behalf of veterans affected by an increasing backlog.  We believe VA’s procedures needlessly delay Veterans’ disability claims, so we have decided to take action where we believe the biggest slowdowns originate.

We will first discuss the problems perpetuating at VA, then the actions we are taking to remedy them. We’ll start with reviewing the status of the case backlog at the Board, as well as examining Board member productivity and the cost per case taxpayers are taking on with these inefficiencies.

Status of the Board of Veterans’ Appeals

The Board of Veterans’ Appeals continues to experience a massive backlog of appeals, due in part to factors such as COVID-19, mail delays, issues with C&P exams, and more.board of veterans' appeals keeps moving the goalpost on the number of VA decisions it expects to issue in 2022

As of May 31, there are a total of 200,667 appeals pending at the Board of Veterans’ Appeals.

  • 70,224 of the appeals pending are in the Legacy system
    • This means that these were claims filed prior to February 2019 and are in the old VA appeals system.
  • 130,441 appeals are pending in AMA

The BVA’s goal for Fiscal Year 2022 is to dispatch 102,561 decisions.

  • Recently, the BVA changed its original Fiscal 2022 goal from 111,500 to 102,561
  • While it now appears as if they are ahead of their Fiscal 2022 goal, they are issuing fewer decisions than this time last year

As of May 29, 2022, the Board has processed 61,428 appeals for FY22 across both Legacy and AMA.

  • BVA decided 4,234 fewer decisions than this time last year;
  • Due to this recent goal change, this is 576 decisions ahead of the FY22 goal to date;
  • With the original 111,500 FY2022 goal, the BVA would be behind;
  • Current projections are 97-99k, but we believe VA will struggle to meet this;
  • BVA’s goals have been changing over time.

Board of Veterans’ Appeals Productivity

The Board received a substantial federal budget increase for FY 2022: $228 million – $32 million more than FY 2021.

The Board’s budget for the last 4 FYs has been:

  • 2022 – $228 Million
  • 2021 – $196 Million
  • 2020 – $174 Million
  • 2019 – $175 Million

Despite the increase in budget, especially from 2021 to 2022, the Board is not issuing more decisions than last year.  In fact, it is deciding fewer (i.e., 4,234 fewer decisions than this time last year).

New Veterans Law Judges (VLJs)

In addition, the Board is appointing new, inexperienced Veterans Law Judges.  This is decreasing Board productivity as they must be trained.

  • BVA is taking VLJs offline to train attorneys and new VLJs.
  • 22 new VLJs were appointed this week, with potentially another 10-15 coming soon
    • Likely more than half of these individuals have no VA law experience.

 

What is the Board Saying?

The Board has claimed that delays in AMA appeal decisions are due to the Board’s focus on and prioritization of Legacy appeals.

The Board has mentioned the following reasons for Board decision delays:

  • The Board is focusing on returning remanded cases;
  • There has been a slowdown in the number of cases due to new Veterans Law Judges and attorneys;
  • The Board is focusing on hearings;
  • Board’s “algorithm” is supposed to only release 20% of AMA cases per week (80/20 rule)
    • However, we know that some cases are operating outside of this algorithm, including attorney fee cases.
    • The BVA is currently at 78% Legacy and 22% AMA decisions for FY22

Additionally, the Board legacy docket continues to be virtually stagnant

  • During the first week of August 2020, it was reported that BVA was working on appeals with docket dates up to July 2019, due to a large volume of Legacy cases coming in. (note: applies to the working docket, not hearings)
  • The current Legacy docket decision date stands at “up to September 2019”. It has barely moved in a little less than 2 years.

While we have tried to point these issues out and resolve them, unfortunately, our concerns have not been seriously considered. So CCK is taking legal action against VA based on two specific issues with the VA process.

We are filing writs which are formal, legal documents that order a person or entity to perform or to cease performing a specific action or deed. In this case, we are requesting that VA change its internal procedures that we see as adding significant, needless delay for Veterans seeking benefits.

  • We are filing several petitions for writs against BVA based on a lack of productivity regarding the processing of Legacy and AMA appeals in the Court of Appeals for Veterans Claims.
    • The Board’s 80/20 rule for deciding Legacy and AMA is causing significant and unnecessary delays for more recently-filed AMA cases (“recent” can include claims from 2019, so these could already be three years old).
    • The 80/20 rule is nowhere in the Appeals Modernization Act legislation.
    • In addition to the AMA delays, Legacy cases are also facing unreasonable delays
    • Separately, we believe that sending extraschedular TDIU cases to the Director of Compensation is unnecessary and greatly slows the process of granting entitled VA benefits.
  • We are submitting a FOIA request in a district court because VA has not produced the documents we have requested.
    • We have submitted these requests to VA, but the department has not complied, so we decided to take it to the district court.

Our goal is to ask the Court to force VA to more effectively process these cases and eliminate needless delays plaguing the VA benefits process.

Veterans Law Judge Letter: Serious Concerns at Board of Veterans' Appeals

On July 29, 2022, CCK received a letter from several unnamed “concerned Judges of the Board” in response to our decision to take formal legal action against VA.  Though the letter was not signed, it was postmarked from the Washington DC area and contained allegations and figures to which only those employed at a higher level of the Board would be privy.

Specifically, the letter included information on the productivity of each Veterans Law Judge (VLJ) at the BVA, clearly noting the number of cases signed per week by each judge from October 2021 to June 2022.

The authors of the letter also expressed their concerns regarding the increased number of hearings, lack of training, experience, and support, and issues with management that have continued to cause significant delays in the processing of appeals.

Ultimately, these judges agreed with CCK that the Board is not producing enough decisions for veterans and their families.  The letter is available to read in full here.

In Closing

If you require assistance appealing a decision from VA at the Board, or appealing a Board decision at the Court of Appeals for Veterans Claims, contact the experienced advocates at CCK today at 800-544-9144. We offer complimentary consultations to determine if we can help with your appeal.