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VA Backlogs: Claims, Appeals, C&P Exams, Service Records, and Mail

VA Backlogs: Claims, Appeals, C&P Exams, Service Records, and Mail

Video Transcription

Robert Chisholm:  Welcome to the Veterans Legal Lowdown.  Joining me today are Christine Clemens and Brad Hennings.  Welcome, both of you.  Today we’re going to be talking about the VA claims and appeals backlog, an update on September 8, 2021.

So, what are we talking about when we talk about a backlog?  VA defines the backlog as the number of claims that have been pending for over 125 days.  Since the onset of the COVID-19 pandemic, VA’s pre-existing backlog of claims and appeals has grown exponentially.

According to VA’s website, there is currently a backlog of 178,584 claims.  However, the Veterans Benefits Administration estimates that the backlog will peak at about 225,000 to 240,000 claims soon.

So, there are two parts to the backlog.  There are the initial claims that haven’t been adjudicated in 125 days.  And then, there’s the backlog that’s also pending at the appellate level at the Board of Veterans’ Appeals.  So, Brad, could you tell us what we know about the backlog pending at the Board of Veterans’ Appeals?

Brad Hennings:  Thanks, Robert.  Yes, so with the Board of Veterans’ Appeals, which is the appeals body when you’re appealing any VA denied benefits claim, we now have reached a point where the number of appeals in the Appeals Modernization Act system, the new and current system that VA is operating, that number has now exceeded what they call the ‘legacy appeals’, or from the legacy system that’s existed for years and years and years.  So, the number of AMA appeals pending at the Board has reached 99,525.  So, this exceeds the 97,859 appeals pending in legacy.  The bottom line is the Board now has 200,000 appeals pending before it.

The legacy docket date is August 2019, and what that means is the Board will work on legacy appeals that have a VA substantive appeal or VA Form 9 dated August 2019 or earlier.  If your appeal in the legacy system was filed after that, they are not currently able to work it unless there is an extenuating circumstance such that you can advance your case on the board stock due to age, illness, or financial difficulties.

Not only do we have all these appeals pending at the Board, we have this huge delay in hearings.  There’s a huge hearing backlog in both the legacy appeals and the AMA appeals.  So, now, nearly sixty percent of veterans are choosing to appeal to the Board in the AMA instead of requesting Higher-Level Reviews or filing Supplemental Claims.  And so, what this means is the percentage is higher than VA expected.  Many of these veterans that are appealing to the Board feel like hearings are the only way they can really be heard by the Department of Veterans Affairs.  And so, they’re choosing hearings at a very high percentage.

As of mid-July 2021, the Board of Veterans Appeals claims it has the capacity to hold about a thousand hearings a week.  But in reality, they’re conducting less than half that number as they go along.  So, the Board’s chairman had announced they hope to hold 50,000 hearings this year.  In reality, they’ve held 20,000 hearings as of August 2021 for their fiscal year which ends at the end of September.  So, they’re clearly not going to hit the 50,000 mark.  But even with holding 20,000 hearings, there are 91,000 hearings that are still pending.  Those are veterans waiting for hearings on their legacy or their AMA.  That continues to rise.  That backlog is getting bigger.  It’s not getting smaller because, again, veterans are choosing to get a hearing in the Appeals Modernization Act system.

For more information on the VA backlog, we created a backlog tracker.  It can be found on our website at cck-law.com/Board-of-Veterans-Appeals-Backlog-Transparency.

I just want to explain a little bit more about the hearings.  Well, veterans feel that this is the only way that VA is really listening to them.  They’re very resource-heavy for the department.  They take more time.  The Board of Veterans’ Appeals doesn’t have the staff to manage the demand.  There are all sorts of scheduling issues, technology issues, lack of ability to have folks travel out to the Regional Offices during COVID.  There are a lot of snafus that occur with these hearings.  So, our general advice has been, if you really need a hearing, please get one, but we think that a lot of times the hearings are unnecessary if you have a good written presentation to give to the Board.

Robert:  So, Brad, it seems to me that there are two things happening. One of which was unexpected. That is more people in the AMA are appealing the decisions to the higher level, to the Board of Veterans Appeals, than anticipated.  In fact, a lot higher rate than anticipated.  The ones that are appealing to the Board want to have a hearing.  The hearings are the most time-resource-intensive, for lack of a better word, for the department.  So, those two things are driving the number of cases at the Board, and the Board can’t get to all the hearings it needs to as quickly as we would like to.

Brad:  All of that is absolutely true.  It’s a little bit of, “Which comes first? The chicken or the egg?”  Because the more resources the Board devotes to hearings to try to get that backlog down, that means the fewer resources they can devote to deciding all these cases that are piling up.  So, the bottom line is, they’ve got a real challenge of the next few years to get down both the case backlog, the appeal backlog, and the hearing backlog.

Robert:  So, that explains what we understand is happening at the Board of Veterans’ Appeals, but there have been equal challenges at the Regional Office level.  Christine, can you outline what the challenges have been at the Regional Office level?

Christine Clemens:  Sure.  So, one of the main things that we’ve seen, and I know a lot of the veterans we worked with have experienced, is the Compensation and Pension examination backlog.  VA, as part of its duty to assist, in many cases, needs to obtain examinations to help them decide veterans claim appropriately.  Some of this backlog goes back to April 2020, when, as a result of COVID-19, many in-person services or most in-person services were paused, and that included C&P examinations.  So, what happened is that led to a backlog of requests for examinations. As of March of 2021, there were 352,000 pending exams.  So, that means that there are 212,000 more exams pending than was the norm in pre-pandemic times.  That’s significant.

Furthermore, the use of contracted examiners over those employed directly by VA has been the source of delay.  So, VA, in this time period, has also moved from conducting the examinations themselves to having contract examiners conduct the examinations.

The idea was that it was going to help alleviate some of the backlogs and streamline the process.  It has not done that.  So, that has been another source of delay.  Some of this is due to the shutdowns caused by the pandemic.  But in terms of the numbers VA’s relying on, in about 90 percent of their cases, they’re relying on these contract examiners to conduct their VA exams.

Many people have expressed concerns with the capabilities and qualifications of these vendors.  Some of them are poorly trained or they seem to be ill-equipped.  They don’t understand what questions are being asked.  There are a number of times it’s back and forth between the contract vendors and VA.  Sometimes, the vendors are requesting information directly from veterans in the form of questionnaires that they’re asking them to complete.

So, that has created more delay and more back and forth.  This, quite frankly, could lead to more appeals from veterans.  These examinations aren’t being conducted appropriately.  The examiners not having appropriate qualifications.

The other thing is that a number of these contractors are not located near the claimants.  And so, unlike when VA facilities conducted the hearings or conducted the examinations, many veterans now are having to travel hundreds of miles to attend these examinations.  And then, if the examination isn’t correct or they’ve missed something, sometimes they’re being scheduled for another examination.

VA officials have promised to bring down the backlog to pre-pandemic levels by the end of this fiscal year, which is September 30, 2021.  So, they’ve got about 22 days by my calculation, approximately.  To do so, VA must complete about 40,000 exams each week to erase the backlog.  They’re currently only performing approximately 32,000 exams per week.  So, I’m not sure that that math quite works out.  As we’ve now entered the month of September, it appears VA is not going to be able, unfortunately, to meet this goal.  That is one of the most major things I think that’s happening in terms of what’s happening at VA and in terms of backlog.

The other thing that’s happening is a backlog at the NPRC, the National Personnel Records Center.  That’s home to personnel-related records for both military and civil services of the United States government.  Veterans need these services and medical records as part of their disability claims.  That’s where they’re being housed.  The pileup of requester records at the NPRC has caused additional delays in the claims process.  Since March of 2020, the backlog has grown to about half a million.  500,000 requests for records, 500,000.  Efforts were made to clear up this backlog, which included hiring additional staff and digitizing more records.  The digitization of some records, taking them through that process, made them inaccessible for a period of time as well.  So, that contributed to some delays but with the goal of getting them uploaded and bringing the system to more modern times.  But there are still thousands of records of requests to process.

The other thing is that we’re still in this pandemic.  So, COVID-19 continues to impact this backlog.  As of August 2, 2021, the NPRC had reduced its on-site staffing to 10 percent of its normal workforce, and that was due to a resurgence of COVID in the St. Louis area.  It continues to rear its head and is still being impacted.  Unfortunately, it has affected these critical records that veterans need.  Until further notice, NPRC has said that it will service only emergency requests associated with medical treatments, burials, and homeless veterans trying to gain admittance to a homeless shelter.

They’ve asked that all other non-emergency requests not be submitted until they return to pre-COVID staffing levels.  Non-emergency request includes requests for replacement medals, administrative corrections, and records research.

Robert:  So, two things really impacting here.  Two critical things, frankly.  Let’s start with the records.  The service records are critical to any claim because the veteran has to prove many cases, when they served, where they served, and what their discharge status was.  And then, the second piece is just about every case needs an exam, either to determine what the current diagnosis is, and/or whether there is a relationship between that diagnosis and their military service.  So, these are two critical functions, both of which are challenging the VA at the moment at the Regional Office level to get claims adjudicated.

Brad, we also have some recent updates on what’s happening with VA’s challenges with mailing both letters to veterans, and more importantly, decisions to veterans.  Can you fill us in on what we know about mail delays caused by either the post office and/or the VA itself?

Brad:  So, there’s really three separate things happening with mail.  First, and I think most people are aware, the U.S. Postal Service has had its struggles, let’s say, in the last year.  They’re about to change their service levels again come October.  The bottom line is that the mail is not moving as quickly as it once did, both for structural reasons and pandemic reasons.  So, that’s slow down everybody’s mail across the board.

However, VA has its own unique challenges as it relates to that.  Many veterans’ advocates that we’ve spoken with, as well as our own experience, have noticed that the VA outgoing mail, meaning when the VA is sending out its decisions or when VA’s sending out its letters, its notices, hearing notices, anything, it’s kind of delayed by about a month.  What I mean by that is, there are decisions being dated, let’s say July 30, that is not arriving at our office or to veterans until August 30 or later.

So, they are literally about a month behind in sending things out.  Even though it’s dated a certain date, it’s not being sent out.  They have a centralized mail vendor and that mail vendor has run into a number of issues we understand.  And so, they have a huge backlog of hundreds of thousands of pieces of mail they’re working through to try to get current.

But in the meantime, it’s really dangerous for veterans because they could be missing hearing notices.  They could be missing CPA exam notices.  They could be missing decisions where they have to make it respond to that decision within thirty days or sixty days.  It really put veterans, their dependence, and representatives under a lot of pressure to try to deal with the VA not being able to do something as simple as sending out mail.

The third issue is we continue to see a delay in the processing of incoming mail at the Board of Veterans’ Appeals.  It was a crisis at one point.  I’d say, within the last year, it has gotten better, but there are still delays when you’re sending appeals, for example, into the Board of Veterans’ Appeals for extension requests.  The Board’s not getting them in a timely manner.  They’re not processing them in a timely manner, and that hurts veterans and their dependents.  It hurts our clients when we’re not given enough time or we’re not given credit for getting things in on time due to the government’s failure to appropriately process its mail.

Robert:  Let’s talk about what process means in this context.  So, if we mail a document or if we direct upload a document, it might not show up in the veteran’s claims folder where it needs to be in order for a decision to be made for a few weeks to a month, right?

Brad:  This is sort of the misunderstanding about electronic filing, particularly, in the VA world.  Which, on its face, it seems great.  You click a button.  It just goes to VA and VA answers to the file.  But that’s not how it works.  You click a button, it goes into what they call a ‘mail portal’ at the Department of Veterans Affairs.  But a person has to process that, has to look at, has to determine what needs to happen with it, and has to manually interact with that upload that we sent, and then add it to VA systems.  And so, because of that and because of personnel shortages that they haven’t been able to work on this, it can take weeks.  It can take a month.  So, something that you thought you clicked a button, and it went right to VA.  It did.  But it didn’t get to where it needed to go in VA for up to a month, or two sometimes.

Robert:  So, this challenge is about uploading, and then, VA mailing.  It’s on both ends.

Brad:  Yes.

Robert:  So, here’s what VA has been saying:

VA is making note of the backlog through public press releases and through lawmakers.  VA’s stated reasons for these backlogs include COVID and the narrow backlog due to lack of personnel, the Blue Water Navy act, and an influx of claims.  VA expects 40,000 of these additional claims to be added to the backlog.  The expansion of Agent Orange presumptive conditions to include bladder cancer, hypothyroidism, Parkinsonism.  VA expects 70,000 of these claims to roll into the backlog come October.

So, VA is saying it’s these new statutes, these new laws, that expanded benefits resulting in more claims.  What about the impact on veterans?

Despite VA’s efforts to decrease the backlogs at all stages of the claims and appeals process, there’s still a long way to go.  As a result of the delays that we’ve discussed here both at the Board and the Regional Office, hundreds and thousands of veterans have been left without access to benefits they rightfully deserve and often depend on to support themselves and their families.

Frankly, we don’t see this decreasing in the near future, especially as the COVID pandemic continues.  Any final comments, Christine?

Christine:  I think what I would say to veterans and to their survivors who are filing is just don’t give up hope.  If they have questions, they should reach out to an accredited representative who can walk them through the process.  I know that in a lot of these situations, people are already dealing with severe disabilities.  They’re dealing with tough times.  It’s only compounded with what’s happening at VA.  But staying in the process as long as possible, getting the answers when they have questions, staying tuned by providing updates, I think all those are things that can be helpful.  Don’t get discouraged.  We’ll get through this.

Robert:  Brad, any final thoughts from you?

Brad:  I agree completely with Christine.  I think the most important thing you can do is get an accredited representative.  Let them try to break through the bureaucracy for you.  We spend all day every day trying to work through these issues for our clients, and we do.  But it’s hard to do it on your own. It’s hard to deal with the bureaucracy, all these changes, and all these things going on behind the scenes that you can’t see.  Let us.  Let some other representative help you walk through this process, and be patient.

Robert:  I think that makes sense.  Don’t give up.  Continue to appeal your claim if you’re denied.  You have a right to the benefits and you should continue the process moving forward.  I’m sorry the news isn’t better, but we continue to monitor it closely.

As Christine noted, please follow us on YouTube.  Follow our YouTube channel.  Follow our social media channels as well, and we will continue to update you.  Christine, Brad, thank you both.  Thank you everyone for joining us today.

Brad:  Please subscribe to our podcast.