Breaking Down the BVA Backlog

CCK Law: Our Vital Role in Veterans Law

Video Transcription:

Robert: Good afternoon, and welcome to CCK Live. This week on CCK Live, we are breaking down the backlog at the Board of Veterans Appeals. We have launched a new product at CCK called the BVA tracker and we will have a link to the BVA tracker so you can look at this data. We will be discussing appeals in both the legacy system and the AMA system. First of all, we decided to create this tool because VA when it releases its data, it is not always the model of clarity and it is not always easily understandable.
So we have tried to take the information that the Board of Veterans Appeals provides and break it down into an easy, understandable way, for everyone to review and look at. The VA often compares metrics that are not necessarily comparable. So to speak apples to oranges, as opposed to apples to apples. So hopefully when you review the BVA tracker, it will make sense and you will get a better sense of how quickly the board is making decisions in both AMA and also in the legacy system and you will also get a sense in both systems as to how many claims are being granted, how many are being remanded, how many are being dismissed, how many are being denied. With that, I am going to turn it over to Brad for an overview of the appeals process.

Brad: When a veteran’s claim for disability benefits is denied, they have a right to appeal the decision to the Board of Veterans Appeals through the Notice of Disagreement option. This is true in both the legacy system and in the AMA system, the Appeals Modernization Act. What that means is a veteran or a claimant has the right to go to the Board of Veterans Appeals, which is part of the VA and it is based in Washington, D.C. It reviews decisions by the regional offices that are located around the country and it is designed to provide a fresh set of eyes. It is lawyers and what they call veterans law judges who review all of these cases and all of these appeals at the board. We have a video dedicated to the Board of Veterans Appeals and how it works, so please check out our YouTube channel, the CCK YouTube channel, which goes into a lot more detail. But ultimately, it is the body that is tasked within the VA to decide veterans appeals. It is designed to make the final decision of the Secretary of Veterans Affairs within VA. This is not to be confused with the U.S. Court of Appeals for Veterans Claims, which is an outside federal court which will review the VAs decisions as well.

Robert: Brad, are there different backlogs depending on which system you are in, that is AMA versus legacy?

Brad: Yes. So, they are based on the system that you are in. There are different wait times or different backlogs that the VA has because they are two different systems. Legacy appeals are one stream, let us say, and the AMA appeals is another stream. There is far fewer AMA appeals at this point because the system just came in to full existence in February 2019. There are still many legacy cases pending. The last time I checked it was over a hundred thousand or a hundred fifty thousand legacy cases that are still pending and those get priority at the Board of Veterans Appeals. The wait times and the expectations are different for legacy cases versus AMA cases and there is further distinctions that could cause a case to take longer. For instance, if you are waiting for a hearing. In legacy and you are waiting for a hearing, an in-person hearing, via a travel board because none of the regional offices or very few of the regional offices are open right now, and so there are things that will affect to further break down those numbers.

Robert: Christine, if I could pivot to you now and ask you to sort of break down the data that the BVA provides when you are asked for it, and we have now incorporated into our BVA tracker.

Christine: You know, how we got to these numbers and why the numbers are so confusing, as Brad mentioned, is that there are now two systems in effect. What AMA does is it creates a greater level of access to the board directly. So there was already a backlog of appeals at the board before AMA went into effect. Now that AMA is in effect the board is dealing with that backlog from the legacy system, but is also having to deal with real-time appeals being filed directly within the AMA system. The number of appeals under AMA filed with the BVA under AMA, which is the new system in 2020, was more than double the amount of AMA appeals from the 2019 fiscal year. There are a number of reasons why. The AMA system only came into full effect in February 2019 so most appeals of regional office decisions generated prior to that date were filed within the legacy system, which did not allow appeals of initial rating decisions directly to the board. Additionally, some of the appeals were filed through RAMP which served as a pilot program for AMA system. Essentially, RAMP was a way to move appeals from the legacy system into AMA before AMA went into effect and those RAMP decisions could be appealed directly to the board. The other thing is it means more veterans are choosing one of the three board dockets under AMA. Veterans are choosing to file their appeals directly with the Board of Veterans Appeals. The number of hearings pending in 2020 greatly exceeded the number of hearings held in both the legacy and AMA systems in 2019 as well. So for example, the total number of AMA hearings held in 2019 is just a fraction of the tens of thousands of appeals that were filed to the board and where people had elected to have hearings. The number of legacy hearings held in 2019 was about two-thirds of the number of hearings pending and so far into in 2020 nearly twice the number of hearings are pending than in 2019. There are a number of hearings pending and that is because there are now hearings pending in both systems. The board has been trying to address this hearing backlog, but unfortunately, the hearings are not just being scheduled and completed as quickly as the hearings are being requested.

Robert: I think it is important to point out that one of the challenges with hearings right now during the Covid-19 pandemic is that the VA is not having in-person hearings and that they really are only capable of doing virtual hearings, similar Zoom type meeting that we are having here and broadcasting through his what the board would like to do to facilitate hearings right now because there are only a few regional offices open around the country to do either travel board hearings or video hearings. The video hearing requires someone to be at the regional office in those are not open. The reality is only virtual hearings are really possible at this point. Christine, could you explain one other thing? We have been talking about both the AMA appellate appeals system and the legacy appeals system, but over time one of those is going to go away. Could you walk through why over time legacy is going to disappear from the the data in the BVA tracker.

Christine: Sure. Legacy appeals once they get adjudicated and are finally adjudicated, there will be no more legacy appeals. All of the new appeals coming in or rather all of the new decisions coming in are being appealed in AMA. Currently what is happening is veterans and VA are working through those legacy appeals. There are still some in the regional offices, there are some that are waiting at the board, some are currently at the court that will be remanded back to the board, and so those need to get worked in legacy, but eventually once all of those are concluded all of the appeals will be in AMA. How long that will take will just depend on how long it takes VA and the board to hold the hearings, make the decisions, for veterans to be satisfied with those decisions. Those are all factors that will affect the length of time.

Robert: Thank you. I have talked for a moment about productivity in 2020. VA and the government in general works on a fiscal year. The fiscal year begins October 1st and ends on September 30th. So fiscal year 2020 just ended on September 30th, 2020 and fiscal year 2021 just began on October 1st, 2020. So that is an important thing because when we are giving data on the BVA tracker, it is by the fiscal year not by the calendar year. In fiscal year 2019, the board issued a total number of 95,089 decisions. That means they issued 95,089 decisions as a combination of both AMA and legacy. In 2020, which just ended the fiscal year, the board increased its production and did 102,663 decisions. What kind of decisions did the board issue? In 2019, they issued approximately 39% of decisions were remands, approximately 35% were grants, 21% were denials, and 4% fell into a category that they label us other. In 2020. The board issued 40% of the decisions were remands, 35% were grants, 18% were denial, and 5% fell into the category of other. BVA stayed fairly consistent as far as the grant, remand, denial, rate within a few percentage points. We have a number, I think Brad, for the goal for the number of decisions for fiscal year 2021. If you could pick up that piece and then talk a little bit about the wait times in the BVA tracker as well.

Brad: Sure. Thanks Robert. One of the big questions is, will the board be able to produce as many decisions in 2021 as it did in 2020. Their goal is lower than what they did this year. It is a higher goal than that what they previously had but I believe the goal is 95,000 or 96,000 decisions for 2021. I think there will be a lot of challenges in meeting that goal along with their schedule to hold or they want to hold 50,000 hearings, which is a remarkable number of hearings to try to hold within a fiscal year and it would far exceed anything the board has ever done, in my opinion, by an order of magnitude. It will be really interesting to see how the board deals with that. But in terms of some of the wait times, what we are seeing is in the AMA, from the initial BVA intake or the Board of Veterans Appeals intake of an appeal to its completion, the cases across the various dockets were around 291 days to completion in 2019 and 299 days to completion in 2020. That makes sense because there were very few AMA cases in 2019 and now the AMA case numbers are increasing. So it is going to take longer to do them and the Board of Veterans Appeals has really been focused on getting rid of the legacy appeals. That has been the main focus. It is not surprising that number went up. What is interesting is that in the legacy system the number of days from one of the appeals received by the board to when they issue a decision, is higher thus far in 2020 than in 2019. It went from 604 days in 2019 to 691 days in 2020. With the legacy cases, they do them by what they call docket date, which is really a first in, first out. Right now the board is working dockets as new as December 2017 and what that means is that if your case has a docket in the legacy system that is after 2017, the board is not going to work on it right now. It will work on anything December 2017 or older and that is based on the date that you filed your substantive appeal, the VA Form 9. That date can change depending on the board’s inventory. The more cases that it has available to work, it moves the docket date back, meaning it is working on older cases. When the inventory is low meaning that the Veterans Benefits Administration has not transmitted these cases to the Board of Veterans Appeals yet, so when that inventory is low the docket date moves up. In fact, it moved up I think as far as April or May of 2020, and then the board took in a whole bunch of cases from BVA and that pushed the docket date back. It is quite confusing. So again, please take a look at our numbers and we will have some explanations there as well. These cases can get delayed because a case could be at the board but is not being worked on and that could be due to a request for additional time to submit evidence or argument that the claimant has asked for, it could be because there is a translation that is necessary. Something is submitted another language. Spanish is very common, people submit Spanish language documents that need to be translated. It has to be sent out. There were no in-house Board of Veterans Appeals folks to do that. It could be waiting for a hearing. As we have discussed, there is a huge hearing backlog. So there is any number of reasons that could be waiting for a claims file request. There could be any number of requests that are pending that delay a case, even when it is sitting at the board. The other thing is that, historically the remands, when a case is remanded by the Board of Veterans Appeals, it goes back to the regional office. They have historically taken 379 days on average to process them in 2019. Whereas when the remand comes back to the board, it will only take about 76 days. So there is a lot of cases that have been sitting at the regional offices that require action, require the regional offices to complete that action and send it back to the board, and that can take a significant amount of time. In addition, those remands that are coming back to the Board of Veterans Appeals are, by regulation, they are supposed to be given priority. Meaning they are supposed to be worked first. But again, for all those same reasons that I listed before, it could be that your remand is not being worked first because there is a reason that it is being delayed at the board itself. So theoretically, a new case should not be decided before a remanded case because the remanded case is older and should get priority, but there are times when those remanded cases are sitting in limbo or still being worked on at the regional office, or they come back to the board again. It has got a translation or someone has requested another 30 days, and so you will have newer cases being worked. If the board is working at December 2017 docket, let us say your case is from 2005, you would think that you would get your case decided first. But in fact, there may be a decision that comes out from 2016 case before yours because yours is still waiting in the queue.

Robert: I imagine that some people will say, well CCK, where did you get this information from? Could you share how we obtained this information that is in our BVA tracker?

Christine: Sure. Some of the information is taken, it is publicly available, by the board and some of the other information we actually requested directly from the Board of Veterans Appeals by filing Freedom of Information Act request to obtain this data to help sort of clarify that information that is publicly available.

Robert: I think it is important to point out, Christine and Brad, that we are going to continue to make requests on a monthly basis and when we get the information from the BVA, we are going to update the BVA tracker to make it as current as possible, and as accurate as possible. Do either of you have any final thoughts. I will turn to you first Christine.

Christine: Yes. Something that I want to make sure that we have clarified a little bit when we talk about the board issuing grants, remands, the different types of decisions, is sort of how they classify those decisions. When the board says that it is granting that could be, if somebody has filed an appeal that has multiple issues, if the board grants one of those issues, that is considered a grant. It is put into the grant category. The numbers may look a little bit more favorable than what people feel they are experiencing but that is how the board is calculating those statistics. The other thing is when you had mentioned that one of the statistics is for other, it is in other category, and that is meant to encompass decisions that might be referrals or dismissals. So it is a smaller percentage but I wanted to make sure that at least the data that were conveying here is is clear. I think it is definitely clear from our BVA tracker page. As you said, we do give descriptions of what each of these are.

Robert: That is a really good point which you made about a grant. Let us just give a concrete example of that and my thought is. let us suppose a veteran filed a claim for tinnitus and also filed the claim for post-traumatic stress disorder, and the VA denied the post-traumatic stress disorder at the board level and granted the tinnitus claim, that would be considered a grant. Even though it is an incomplete grant and that is really important point. Thank you. Brad, do you have any final thoughts?

Brad: Just that this is all can get very complicated and very confusing, we have spent a lot of time trying to dig through the data because as you said, it is not always apples to apples, it is apples to oranges. But again, I would strongly encourage anyone out there working on an appeal to find a representative, find a qualified veteran service organization, like our friends at DAV, find accredited attorney, find an accredited agent, to sort of help you through this process because as you can see from these numbers, it can be quite lengthy and complicated.

Robert: Christine and Brad, thank you both for joining us at CCK Live today. Please follow us on social media. Please follow us on our YouTube channel or Facebook. Thank you for joining us and remember that we are going to be regularly, monthly, updating the BVA tracker. Let us know, on social media, what you think about it. If you have questions, let us know that as well, and we will try and keep it as accurate as possible and as current as possible. Thank you.