CCK Law Takes Legal Action Against VA: Department of Veterans Affairs

Video Transcription

Zachary Stolz: Welcome to CCK Live. Today we are explaining CCK’s decision to take significant legal action against the VA on behalf of veterans affected by the VA backlog. An issue that I am sure anyone watching this that has a claim with the Department of Veterans Affairs has experienced at some point in their lives with the Department of Veterans Affairs, and that is the increasing backlog that is affecting the time that it takes for appeals to be processed through their system. We believe that VA’s procedures needlessly delay veterans’ disability claims. And so, we’ve decided to take some action where we believe the biggest slowdowns originate.

We’re going to first discuss some of the problems perpetuating at VA and then the actions we’re taking in court 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 or some of the costs that VA is incurring by budgeting for the Board of Veterans’ Appeals.

Rest assured they have a very large budget, and so we are expecting very large actions. And so, we are going to keep after VA on behalf of our clients and disabled veterans everywhere to try to get the Board and the Department of Veterans Affairs to speed up on some of these appeals that they have promised for years and years and years to do.

My colleague Christine Clemens is joining me today to talk this through. We’ll explain some of the problems that are happening, and we’ll explain what we’re going to do to try our best to fix it for the people that we represent. Christine.

Christine Clemens: So Zach, you said that the Board of Veterans’ Appeals continues to experience a massive backlog of appeals. There are a number of reasons for this such as COVID-19, mail delays, issues with C&P exams, and more. And we’ve discussed these extensively over the last couple of years. But frankly, none of those reasons excuses the backlog or delay veterans are experiencing in getting decisions from the Board on their appeals.

As of May 31, which are the most up-to-date metrics put out by the Board, there were almost 201,000 appeals pending at the Board of Veterans’ Appeals. About 70,000 of those appeals were pending in the legacy system. This is the system that Congress felt needed reform, and it was taking too long, and so now we have a new system. That Legacy system still has about 70,000 appeals at the Board.

That means that these claims were filed by veterans prior to February of 2019, and they’re in this old appeal system. That leaves about 130,000 appeals that are pending in AMA, the new appeals system. The modernized system. Originally, BVA’s goal for the fiscal year 2022 was to issue or dispatch 111,500 decisions. So, between 111 and 112,000 decisions.

Recently, the Board reduced this goal. They just changed the goal to 102,561 decisions. And as a result of this goal change, it now appears as if they’re ahead of their new fiscal 2022 goal by about 576 decisions. Now had they kept the goal at 111,500, they would be behind. And we’ll talk about where they actually are and whether they’re on track.

But as of May 29, 2022, the Board had processed 61,428 appeals for the fiscal year 2022. And that’s across both Legacy and AMA systems. But they’re issuing fewer decisions than they were this time last year. In fact, they’ve issued 4,234 fewer decisions than this time last year.

So, what does that comparison mean? Well, current projections are that they would reach somewhere between 97 and 99,000 decisions. In other words, we think that VA is unlikely to meet even this new goal. Even with having changed what that goal is.

The Board has stated a need for more resources. So Zach, do you want to tell us about what those resources are that they’re seeking and we’ll be getting?

Zachary: They asked and they received. The Board of Veterans’ Appeals appropriately, because there are so many claims and because they are in fairness to the Board of Veterans’ Appeals and in fairness to the hard-working people at the Board, they are dealing in a very complicated world in which they have to adjudicate cases both in the new Appeals Modernization Act and in the Legacy system. It is complicated. There is no doubt about that, and there is no doubt that the overwhelming majority of people at the Department of Veterans Affairs and at the Board of Veterans’ Appeals work extremely hard serving our nation’s veterans.

However, they did get a massive budget increase. In 2022, their budget is going to be $228 million. That is an increase over 2021, in which they got $196 million. In 2020, they got $174 million. In 2019, $175 million. So, that is an increase from $196 million last fiscal year to $228 million this fiscal year. They are supposed to be making more decisions, and they are supposed to be working faster. That was VA’s promise.

When the Appeals Modernization Act was drafted and passed and signed into law, the promise was that this was supposed to speed up the process. It was never going to be lightning quick. No one ever expected it to be lightning quick. In order to serve veterans, there does need to be a process. But we believe that it is going too slow considering the promises that the department made over the course of the last several years and following the money. The fact that they have gotten more money to do more work, and they’re not. And so, that is the reason why we are doing this.

There have been a number of new veterans law judges, members of the Board of Veterans’ Appeals are called veterans law judges, and in addition, the Board is appointing some inexperienced veterans law judges and that’s fine. But that means that even though new judges are coming onto the force or coming on to adjudicate cases, new Board members are coming in. Even with that happening, they’ve got to get them trained and up to speed. And so, there are naturally going to be delays and they need to get ahead of this. And so that is why, again, we’re going to be taking action on this.

So, Christine, what’s the Board saying about this?

Christine: Why the delays? Well, the Board has mentioned the following reasons for Board decision delays. They are focusing on returning remanded cases of these Legacy cases that have either gone to Court and come back, or cases that they’ve remanded to the Regional Office have come back up to them. So, they’re focusing on those cases first. There’s been a slowdown in the number of cases due to these new veterans law judges, and new attorneys on the Board.

So, in some ways, what they’re saying is, “Oh, we have all these new resources, that’s great. But we need time to train them, we need time to get them up to speed.” And that’s part of what’s causing this delay. They can’t write the decisions while we’re training them.

They are focusing on hearings. I believe this is more so in the Legacy docket because we’ve just seen the AMA hearing docket numbers continue to grow. So, they’re focusing on hearings in Legacy. And then the Board has this algorithm that’s supposed to — they’ve talked about this publicly, they’re trying to handle Legacy cases in priority first. So, 80% of the cases they’re issuing decisions on are supposed to be Legacy cases, and about 20% are supposed to be AMA cases. They have an algorithm that’s supposed to only release 20% of AMA cases per week. We refer to this as the 80-20 rule. But we know that some cases are operating outside of their algorithm. So currently, they’re at about 78% Legacy and 22% AMA for fiscal year 2022.

The Board has also claimed that delays in AMA appeal decisions are due to their focus on and prioritization of Legacy appeals. We think that they’re clearing out all these Legacy numbers, so let’s talk about legacy. 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 of up to July 2019, and this was due to a large volume of Legacy cases coming in.

The current Legacy docket decision date stands at up to September 2019 on the Board’s website. It has barely moved in a little less than 2 years. So, it’s unclear what’s really going on. You would expect to see, they say we’re working on Legacy, you would expect to see those numbers really move. And we just haven’t seen that.

Zachary: So, here’s what we’re going to do about it. We have talked and we at CCK do – I will speak for all of us – we pride ourselves on being able to work with the Department of Veterans Affairs to better serve our nation’s veterans and their families, and we will continue to do that. As I have said many times before and I’ll say it again, the overwhelming majority of people at the Department of Veterans Affairs and the Board of Veterans’ Appeals work diligently every day to serve our nation’s veterans and we are proud to work alongside them. Sometimes we have a difference of opinion. And fortunately, this is the United States, and so when you have a difference of opinion, we do get to go to Court. And that’s what we’re going to do.

We have a difference of opinion about how fast the Board of Veterans’ Appeals needs to be working on these cases. We have a difference of opinion about how, perhaps, the Board can create some more efficiencies and work some cases faster to serve the people who have been waiting so long for the decisions from the Board.

So, here’s what we’re going to do. We’re going to take legal action against the Department of Veterans Affairs. We’re going to file several petitions for the Writs of Mandamus. A Writ of Mandamus is something that the Court of Appeals for Veterans Claims can issue in extraordinary circumstances. We believe we have those extraordinary circumstances.

So, not to belabor too technically what we’re going to do and this will be made public on the Court’s docket when it happens and when it proceeds, but we’re going to file. As Christine mentioned, there’s essentially the 80-20 algorithmic split that the Board of Veterans’ Appeals and this is very public. The Board has been public about how they adjudicate cases. They’re adjudicating 80% Legacy cases and 20% Appeals Modernization Act cases, give or take. We don’t think that’s right or at least we don’t understand why they’re doing it that way.

Again, the Appeals Modernization Act was passed with the promise that veterans that opted into that system or veterans that were a part of that system would have a faster appeals resolution time. We are not seeing that. And so, it is our opinion that they need to explain that and that the Court of Appeals for Veterans Claims should get involved and start asking some questions, and start really holding the Board of Veterans’ Appeals to account for what it is doing.

In addition to that, we believe that extraschedular cases for total disability based upon individual unemployability, those cases that affect so many of our clients and so many of our nation’s veterans, we believe that they’re not being adjudicated correctly and that the Board of Veterans’ Appeals can make decisions on these cases without needless referrals, and without needlessly sending these to other parts of the Department of Veterans Affairs. And so, we’re going to file a petition for a Writ of Mandamus asking for that process to be corrected.

In addition, we’re submitting a FOIA request, which is the Freedom of Information Act in a district court, because VA will not produce documents. We are asking for documents so that we can better understand what the Board of Veterans’ Appeals and the Department of Veterans Affairs are up to, and we have not been getting satisfactory answers on that. So, we will be going to the district court to try to get to the bottom of that situation.

We also have a number of cases in the Legacy system that we don’t believe are being adjudicated as quickly as they told us they would be. So, not only are we taking care of people that we represent that find themselves in the Appeals Modernization Act, but we’re also filing petitions for Writs of Mandamus for several of our clients that find themselves in the Legacy system, and also stuck there.

And so, not to get too far into the legal details and not to get too far into it before there’s actual litigation pending for this stuff, but this is what we have filed, and we’ll be filing in the future. So, rest assured, CCK is doing its best to really work with the Department of Veterans Affairs, but also when we have to, get a little adversarial with them, and get the court involved and make sure that we are doing the best we can to get our clients’ cases adjudicated as quickly as we possibly can.

So, our goal is to ask the court to force VA to be more effective in their process and eliminate needless delays plaguing the system. Christine, closing remarks.

Christine: Thanks, Zach. So, CCK will continue to provide updates regarding the BVA backlog and productivity, especially as the Board transitions into new leadership and new veterans law judges are added. We will also continue to keep our clients and friends, our viewers apprised of the progress of our ongoing legal actions.

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, please contact our experienced advocates at CCK today. These are both complex systems as Zach alluded to earlier, and our experienced advocates can help. We also offer complimentary consultations to determine if we can help with your appeal.

So, on behalf of Zach and myself, and everyone here at CCK, thank you for tuning in.