Do VA Disability Lawyers Delay Veterans’ VA Claims?

Video Transcription

Robert Chisholm: Good afternoon and welcome to CCK Live. With me, this afternoon is Christine Clemens, Managing Attorney at Chisholm Chisholm & Kilpatrick. My name is Robert Chisholm, I’m a Founding partner at Chisholm Chisholm & Kilpatrick.

And today, we are going to be addressing the question, do VA disability attorneys delay your claim? So, we’re going to start with a little bit of an overview. Throughout the last 30 years that we’ve been practicing law before the VA, the VA disability system has had backlogs at every stage. And now, despite the promise of the AMA, that is 125 days to a decision, all Legacy cases were supposed to be eliminated by 2022, the backlog is bigger than ever.

This means that hundreds of thousands of veterans must continue to await their rightfully owed back pay and benefits from the VA. VA disability back pay is the money owed to veterans from the effective date of their claim to the date they were granted those benefits.

So, first of all, we’re going to talk about the backlog recap. As most veterans are aware, there continue to be massive delays in the processing of claims and appeals. And Christine, I’d like to turn it over to you to sort of explain where we are in 2022.

Christine Clemens: Yeah. So, as of January 16, 2022, there are a total of 201,933 appeals pending at the Board of Veterans’ Appeals, so almost 202,000.

Robert: Wait. Did you say 200,000 cases pending appeals pending at the Board?

Christine: I said almost 202,000, Robert. Yeah, it’s a massive number of appeals pending at the Board of Veterans’ Appeals. We are now well into the AMA, which was meant to reduce the backlog. Some of the appeals that are pending at the Board are in the Legacy system. So about 116,969, almost 117,000, of those appeals that are pending are in AMA, they’re in the new appeal system. And just under 85,000 appeals are pending at the Board are in the Legacy system.

So, essentially, this backlog is comprised both of appeals in the new system AMA and the Legacy system. For more details on the backlog, you can read on our website, we have information on the Board of Veterans’ Appeals, BVA docket delays. So, we have more specific information on those.

But because of this amends backlog, VA can often take months or even years to grant benefits. What this means, is that many veterans worry that hiring an attorney to help with their claim might further slow down this already delayed process.

Robert: So, let’s ask the question, Christine. Do VA disability lawyers delay a claim?

Christine: No. VA disability lawyers do not delay your claim. Hiring an attorney does not delay your claim. Choosing the wrong attorney could. But the wait times that veterans are experiencing are due to issues within the VA system. In addition to challenges that are presented by the ongoing pandemic, claims are taking longer to process due to C&P exam backlogs, mail delays, record request delays, the BVA backlog that we just talked about, especially in the hearing lane.

We’ve also talked about hearings and whether they’re a good idea, they’re contributing to this backlog. And the addition of new presumptive conditions, specifically those related to exposure to Agent Orange, Bluewater Navy act, and those presumptives related to Gulf War, have added claims and appeals to this backlog.

Robert: Do attorneys speed up the claim?

Christine: Well, while an attorney cannot speed up the decision process itself, they may be able to help a veteran develop a stronger claim or appeal to get a more favorable decision the first time around. So, if we’re just talking about moving quickly, they’re not going to speed it up. But if we’re talking about moving accurately or more precisely, an accredited attorney or representative can help with getting the right result.

Robert: So, let’s talk about ways that an attorney can facilitate having the record fully developed and making choices that might move the claim faster through the process. So, first of all, you mentioned the BVA hearings. Talk about that a little bit.

Christine: Yeah. So we typically avoid BVA hearings because they take longer to schedule. Transcription has to happen with the hearings. And they may not add anything substantively to a case other than delay. So, we typically do avoid hearings and instead submit the evidence that we would otherwise obtain at that hearing. We would submit that evidence to support the claim.

Robert: And the simple reality is when it comes to hearings, if you have to schedule the hearing, that takes time. And as you said, the transcription of the hearing takes time as opposed to just submitting the evidence in writing in the form of say, a written statement or an affidavit. And then the BVA can just decide the issue quicker.

Okay. There are some cases that can be expedited which means they can be moved faster through the process. Can you talk about those?

Christine: Sure. So, in situations where a veteran is terminally ill, age 75 or older, facing severe financial hardship. For example, being evicted or foreclosed upon. Has faced a natural disaster or meets the criteria for other qualifying circumstances, they may be eligible to have their cases expedited by filing a motion to expedite with the Board of Veterans’ Appeals.

Robert: And then, there are certain technological advantages for some attorneys who are connected to the VA, and let’s talk a little bit about that. There’s the direct upload. What is that?

Christine: Absolutely. So, some attorneys have access. This is something that any attorney representing veterans should be requesting, to be able to have the most up-to-date information on their case. Through that access, they’re also able to access something called direct upload. So, we don’t have to mail things to VA. We don’t have to worry about faxes going through. We don’t have to worry about mail being slow or coming in whatever form it comes in.

We utilize something called direct upload, which basically allows us to take our submission of the claim, the appeal, the supporting evidence and put it directly into the VA system. So, this avoids delays within the mailing system. And it moves away from the old days before we had access where you would file something, you would track it as best you could. And then kind of hope that VA was working on it. We can actually track it as it’s there on the VA system and upload it.

Robert: And there’s another level of access and that is to the VA’s electronic system called VBMS. And what does access to VBMS do for a veteran if their accredited attorney has access?

Christine: Right. So, to be clear, this is something that’s different from the access that a veteran might have on VA’s website or eBenefits. This is accessed similar to what VA has and uses. This allows us to see when the case is being worked on, who’s working on it. It allows us to see where it’s been assigned, whether it’s within the national work queue. Whether it’s one of the DROCs that might be handling it.

And that’s helpful if there are any issues that arise. We’ll know who we need to reach out to, for example. Make sure that they’re looking at all of the issues on the claim or all of the issues on the appeal. As opposed to issues that they may have in their system and others that might not be on their radar. We can see that and we can help make sure that they are looking at everything that the veteran wants them to look at.

We can also make sure that all of the forms that the VA needs and requires, the application forms, the appeal forms. Forms that allow VA to get medical records, that all of those are uploaded, that they are in good form, reviewable by VA. So, we can make sure that everything is uploaded in the system. And we can continue to monitor the case. We can see when VA is working on it. We can see when it changes hands. It’s getting signed to someone. We can see when VA is drafting decisions on the case.

And that’s pretty important for us to know that it is not only on VA’s radar, but that movement is happening. That’s something that veterans can’t always see in their cases. And so, that real-time status tracking is a pretty critical component to VBMS access. It’s an inside look into the specific progress of the claim and provides far more information than like I said, eBenefits or va.gov. Which provides a broad overview, but not the specifics that I talked about.

Robert: Can I just ask one question? I know one of the things that we frequently find is that VA has not appropriately in some circumstances created what’s called an end product. And can you talk a little bit about what an end product is and why it’s so important to monitor for that in VBMS and how that can help move a case along?

Christine: Absolutely. So, an end product is basically VA scheduling the tasks that need to be completed associated with the claim. We do sometimes see things that are uploaded in the VA system, our submissions, maybe it was an appeal, is not characterized appropriately when it’s added to the VA system. So, there’s a layer of us putting it into their system, and then somebody goes in and looks at it and says, okay, it’s this type of document. Sometimes they call it third-party correspondence when it’s actually an appeal.

And so what we can do is make sure that it’s uploaded correctly, that it’s identified correctly. And that the corresponding action that needs to happen is associated with it. That’s that EP or end product that you talked about. It’s essentially VA saying, okay, we received the claim. Here are all the steps that need to happen. Here’s the goal for our time frame to complete those steps. Here’s the first step that needs to happen. So, if exams need to be scheduled, if evidence needs to be gathered, letters need to be sent to the veteran, all of that will be tracked within VA’s system.

Robert: Okay. So, we also monitor the time it takes VA to complete tasks, and how does that help move the claim along?

Christine: So, we can check to see, did they issue a decision? That’s kind of the most important thing. We know that there have been all kinds of issues with mailing. Since last summer VA has had issues with mailing decisions and other documents. That’s not new though. VA has had problems in the past with the regular mailing system. And so it’s not uncommon for our clients to call us and to have received money, but not a decision that corresponds with it or, they want an update. They haven’t heard anything, they didn’t receive a decision, and sometimes we haven’t received it either.

We track the VA system to see whether a decision has been issued. And it allows us to see really, VA meeting those goals that they have for making decisions in the Supplemental Claim lane within six months. They’re not. But it does allow us to look at that and to see which lanes are moving faster, frankly.

Robert: So, I’m going to wrap up with a question, and I may answer my own question as well. But I’d like to get your take on this.

There was a promise that the AMA would speed things along. There’s a promise that by now, 2022, that Legacy would be done. And at this point, do you have any idea when the Legacy cases will be done?

Christine: I don’t. I mean we know that there is the backlog is upwards of 80,000 as we talked about at the Board. There are still some Legacy cases at the Regional Offices, it’s fewer than the numbers at the Board. But there’s no clear time frame of when they’re going to be done with that.

Some of those decisions, some of those cases that are pending at the Board and Legacy will get appealed to the Court. And then that’ll take time. And I don’t anticipate that those would be back by the end of 2022. Some of them will be remanded for further development. And if the VA can’t grant a fully favorable decision, they’ll go right back up to the Board.

So, there’s no clear time frame for how long it’s going to take for them to be done. They say that they’re prioritizing Legacy and so they’re making more decisions proportionately in Legacy than AMA. What that’s doing is it’s creating a greater AMA backlog. But it’s hard to see a way out of not only the Legacy backlog but also the AMA backlog.

Robert: And so then that gets back to the original question, and that is, do attorneys delay the claim? And I think the answer is clearly, no. They do not. The delays are
inherent in the system., both in Legacy and the failed promise of the AMA right now.

And as you say, we’ve got the backlog in Legacy, and I don’t see that frankly ending at least through the end of 2023. And then, the AMA in the meantime, the backlogs are growing there. And so, how do they dig out of that? And I can’t see my way through that as we sit here at beginning of 2022 either.

And the recommendation we have is hire an accredited representative who can use the techniques we’ve described in this video to make sure that when your case is decided that it’s well presented, so you have the best chance of success at the earliest opportunity.

And I think we’ll leave it there. Christine, thank you very much for joining us today. Please follow us on YouTube and Facebook. And if you want more information on the topic today or questions to ask when hiring a VA disability attorney, check out our other videos and blog as well. And thank you.