VA Claims and Appeals Backlog (Dec. 2018 Update)
Introduction
1) What is the Veterans Benefits Administration (VBA)?
2) Claims Backlog vs. Appeals Backlog
THE VA CLAIMS BACKLOG
3) What counts as a backlogged claim?
4) Causes & Peak of the CLAIMS Backlog [GRAPHIC]
5) How big is the claims backlog now (December 2018)?
6) Reducing the Claims Backlog
THE VA APPEALS BACKLOG
7) The Latest VA Appeals Data (incl. at the Board of Veterans Appeals)
8) VA Appeals Timeline / VA Appeals Wait Times
9) “Implementing” Board of Veterans Appeals Decisions
10) Consequences of Long Wait Times for Veterans
11) VIEWER QUESTION: If there is a government shutdown Friday (Dec. 21, 2018), will it affect the Board of Veterans Appeals (BVA)?
12) Why is the appeals backlog increasing? [GRAPHICS]
13) Potential Solutions for the VA Appeals Backlog
14) VA Appeals Modernization Act of 2017 (and VA RAMP, Rapid Appeals Modernization Program)
- How might it help with the appeals backlog?
- What are the potential roadblocks to implementing Veterans’ Appeals Reform?
25:56 Concluding Thoughts
Video Transcription.
Brad Hennings: Good afternoon. This is Brad Hennings here at Chisholm Chisholm & Kilpatrick and we’re doing a Facebook Live talk today about the claims and appeals of backlog for VA benefits. Joining me are two attorneys at the firm, Christian McTarnaghan and Lindy Nash. And they’re both going to be joining me in discussing this very important topic. Just to let you know if you have any questions as we’re going along, please leave a comment there on Facebook or leave a question and we’ll try to answer it as we can. If you’re getting this when it’s not live you can do the same and we’ll try to get back to you. Please also visit our website at cck-law.com or contact us for any reason, really. So, let’s get started talking about the VA claims and appeals backlog. So Lindy, what is the Veterans Benefits Administration and how does it fit into VA as a whole?
Lindy Nash: Sure. So the VA actually is made up of several different parts. There are several administrations within the VA. And so the VBA, the Veterans Benefits Administration, is just one part of the VA. The VHA which is the Veterans Health Administration is within the VA as well as the National Cemetery Administration and others. And so, the VBA is just one part. But what the VBA does is that it actually oversees a variety of different benefits. And that’s everything from compensation to pension, fiduciary issues, education benefits, insurance even, so that’s kind of where the VBA fits into the VA.
Brad: So, they’re the benefits people opposed to the Veterans Health Administration, which handles healthcare.
Lindy: Yes, exactly.
Brad: Okay. So Christian, there’s this claims backlog, and there’s an appeals backlog at the Veterans Benefits Administration. So, what’s the difference?
Christian McTarnaghan: Yes, so a claim is just like it sounds. It’s an initial claim. If you were to file a claim for service connection, you can file a claim on the form, you’d submit it to the appropriate office, and that would be considered a claim. Once your claim for service connection gets a little further into the process, you’d get a rating decision that you wouldn’t agree with. And you’d file a Notice of Disagreement. As soon as you file that Notice of Disagreement, it goes from being a claim to being an appeal.
Brad: So like magic.
Christian: Exactly. It’s a magical act, the Notice of Disagreement.
Brad: So how long do veterans typically wait for a decision on their VA disability claim?
Lindy: Yes. So, it varies. You know, I’ve seen different things but typically the average is about 120 days which comes out to about four months. And so again, that’s an average sometimes it’s less than that it could be more, but typically 120 days is what it takes from a claim to make it to a rating decision.
Brad: So that’s a claim but what, how long does it take for an appeal?
Lindy: Yes, so an appeal once you file that magical NOD that we just mentioned it can take up to three years actually for your next decision and whether that could be the SOC, the Statement of the Case, it really depends but typically it could take up to three years, which is a long time. And then if you’re headed to the Board, it could even take up to five years. So, it is quite a long waiting period.
Brad: So, when you say the Board? Is that the Board of Veterans’ Appeals?
Lindy: Yes, the Board of Veterans’ Appeals. Correct.
Brad: And that’s separate from the Veterans Benefits Administration, in the process?
Lindy: Yes.
Brad: Okay. So, let’s talk a little bit about what counts as a backlog claim, talking about the claim backlog.
Christian: Yes, absolutely. So, five days more than the average amount of time that it takes to process a claim. So, 125 days is for reasons I don’t think we exactly know, the magic number of when a claim becomes officially backlog.
Brad: That’s rather convenient isn’t it? An average is 120 days and a backlog claim is over 125 days.
Christian: Exactly.
Brad: So now so that’s just an average. Is that correct?
Christian: I believe so. Yes.
Brad: Okay. So when did the claims backlog reach its peak?
Christian: So, it reached its peak in March of 2013 with 611,000 backlog claims and I think that we’re pulling up a graphic and as you can see, the peak is noted as the peak with a little dot: March 2013, 611,000 claims.
Brad: That’s a tremendous number of claims that were pending that were backlog. So do we know why there was this huge backlog of claims?
Christian: I don’t, we don’t know exactly why. But I think we have some idea why and what we think why it happened. So most importantly, and you can see that I’m just referring to the piece of paper that I have, so I can refer to the graphic. Most importantly, the Secretary added three presumptive conditions for exposure to Agent Orange in 2010. It was ischemic heart disease, it was Parkinson’s disease and then also chronic B-cell leukemia. So when the Secretary adds a presumption anyone who was exposed to Agent Orange, so anyone who had stepped foot in Vietnam, if you have that disability, you can automatically be granted service connection for that disability with very little other questions asked, so all of those individuals were filing those claims although it is relatively automatic, it takes time to go through the VA process. So that’s one of the reasons we think the claim backlog spike. Also, VA data showed that the claims were coming becoming increasingly more complicated. It wasn’t just a hurt my left leg please give me service connection for left leg and I’m looking at the statistics right here. Over the past 10 years there was a 200% increase in original claims containing eight or more specific medical issues or contentions. So as opposed to having just a single disability filed a claim for, there’s eight or more and they’re getting incredibly complex, that just happens to take more time to process.
Brad: Is that a little bit because I think VA’s initiated number of programs where they’re trying to get veterans to file claims before they’re being discharged. And so therefore they’re saying, make sure you list everything that over the years ago where there wasn’t any kind of process like that. So in some ways, it’s a good thing.
Christian: Absolutely, yes.
Brad: Because we’re getting more disabilities and more veterans covered. But there’s this, the downside of that.
Christian: Absolutely. It’s just more volume of claims that needs to move through relatively slow system. And this sort of leads into another reason why we think that there’s such a huge backlog at that time it was processing errors. So with the larger number of claims the larger number of requests for service connection within each filing for disability benefits, there were more errors. So again, looking at the data, there are 1.4 million claims filed in 2017, and more than 90,000 of those were appealed to the Board of Veterans’ Appeals, which is as Lindy talked about the final arbiter of what a VA disability, what VA disability benefits of veteran gets before you sort of move outside of the VA system. And the Board found flaws or requested more information in more than half of those cases, 57% of those cases. And 41% of the reason– in 41% of the time that the Board remanded in 2015, which is the last year I think we have data on this, it was for a Veterans Benefit Administration’s error.
So it’s a lot of taking those claims increasing because of the service connected– the presumptions, processing errors, and then also just the process itself. The IT isn’t great, there’s bad tracking of claims, claims get lost, claims get improperly processed, and then I guess the last theory that we have is the processing system design isn’t great, docketing appeals that have been certified to the Board added an average of 220 days to the processing times that happened in 2015.
Brad: And it’s our understanding that this idea of the certification, or an appeal being certified, the Board is purely ministerial meaning it’s just an administrative pushing a button kind of thing.
Christian: Absolutely. I mean, in my court practice, I see them all the time. It’s a piece of paper that checks boxes, checks a few boxes has a date on it, and that’s it. It’s not, it doesn’t take a lot of work or effort. So that’s certainly an exceedingly large amount of time for something that is basically one piece of paper.
Brad: So Lindy, how big is the claims backlog today?
Lindy: Yes. So it has gone a little bit better. The most recent data that we have is from September 2018, and at that point, the backlog claims were just under 84,000. So that does sound like a lot but it is better than where we were and then the total claims pending is about just under 350,000. So there are plenty of claims that are still pending. But about 84,000 are still backlogged.
Brad: Okay. So what contributed to the reduction? And do you think it will continue to decline?
Lindy: I hope so. There was something in 2015 called the transformation plan. And that was basically, the VBA encouraging the ROs to process claims quickly. So they did mandatory overtime, they had performance goals, they kind of instituted things like that to really light a fire and get things going. So that did, I think contribute to the reduction.
Brad: So now we’re going to move to the appeals backlog. And the appeals backlog is a little bit different than the claims backlog because as we discussed, it’s a different category that VA tracks, and the appeals backlog crosses both the Veterans Benefits Administration as well as the Board of Veterans’ Appeals which is a separate entity. So we have older appeals data from Fiscal Year 2015 that showed over 427,000 pending appeals and 81,000 of those read the Board. It’s my understanding the more recent numbers are – those numbers are increased. There’s at least I think around 450,000, 480,000 in the system. And I believe there’s over 120,000 cases at the Board of Veterans’ Appeals. So that’s continued to grow and that was one of the main drivers for the legislation that was passed reforming the VA appeals processing part of the claims system. So how long do veterans wait on average for appeals?
Christian: So as Lindy said a little earlier, it’s about three years for a standard appeal. And again, as she noted, we don’t really know if that’s three years of the SOC, three years to a later point in the appeal, and then five years if you’re going to the Board. So you mentioned that the Board’s backlog is even larger than what the last data that we have had said more the least the last published data, but the Board’s trying to work on that. The Board has had a tremendous emphasis on hiring more people. There were 186 new attorneys hired in this Fiscal Year. They plan to add about 30 or so more, which is a little bit ahead of schedule in order to help the Board meet its goal of 181 decisions this year which is 28,000 more–2000 sorry, 81,000 appeals, which is 28,000 more than last year.
Brad: And so, I understand that their goal for this current Fiscal Year is 90,000 decisions that they’re expecting to produce and that they now have over 800 attorneys who are drafting decisions for the Veteran’s Law Judges and again, well over 1,000– they have over 1,000 people at the Board of Veterans’ Appeal. So there are significant resources being devoted to that. So we talked a little bit about the average wait time but what’s the oldest appeal either one of you can ever recall seeing?
Christian: Oh, wow.
Brad: And just to be clear, this is including our firm handles many cases at the Court of Appeals for Veteran’s Claims as well as at Department of Veterans Affairs.
Christian: Is it something that should have been adjudicated but wasn’t or like a part of the veteran’s claim stream. I mean, we’ve found unadjudicated claims going back to the 80s. I mean, I work on claims for veterans that file to increase reading claims like 15 years or more pretty regularly.
Lindy: Definitely, yes.
Brad: So that just gives you an idea that even though there’s an average there, that there are extreme cases that can be 10, 15, 20 years to get a decision, sometimes even longer.
Lindy: Yes, we have claimed streams that are still open from the early 2000s. It’s really fascinating and unfortunate sometimes that these veterans I’ve had to wait this long, but we certainly have extremely old claims yet.
Brad: So I just wanted to mention again, this is Brad Hennings with Chisholm Chisholm & Kilpatrick. Joining me are Christian McTarnaghan and Lindy Nash. And we’re talking a little bit about the claims and appeals backlog. But I would be remiss if I didn’t mention that we’re doing a holiday giveaway of CCK, Chisholm Chisholm & Kilpatrick mugs like you see here on camera. They’re very nice. So if you leave a comment there, as part of this will automatically enter you into a drawing for one of the most is that correct? All right. Then, let’s get back to a little bit more about claims and appeals backlog. So if a claim is granted at the Board of Veterans’ Appeals, and it’s sent back to the regional office to be implemented, what does that mean?
Christian: So, it can mean a variety of things but I’ll use the example that’s most clear cut. So if the Board grants and increased rating, let’s say for Post-traumatic stress disorder. The veteran was at a 30 and now they’re at a 50. And the Board says that this rating is effective as of 2010. What happens is it goes back to the RO and the RO just has to make it so. They will make sure that the veteran’s payments, you know moving forward or the correct amount if the increase rating increase the month of compensation, don’t make sure that any retroactive benefits are paid. So essentially, it’s just doing what the Board has asked. And I think something that we have found– that’s supposed to happen relatively quickly, but with the VA backlog with some of the inefficiencies that we’ve noted in the process. It can be taking anywhere from three to six months just from grant to having it actually implemented, if not, in some cases longer.
Brad: So as I understand it, one of the reasons I’ve heard that’s occurred is because the Board of Veterans’ Appeals is making so many decisions that it’s there now overwhelming the processors at the veteran’s benefits.
Christian: That makes sense.
Brad: And so now they’re playing catch up to try to get those implemented. It’s my understanding they’ve hired more staff. But there have been significant weights where veterans are saying, “I’ve been granted this benefit. Where’s the benefit? Where are my benefits?”
Brad: So what are the consequences of these long wait times for VA appeals?
Lindy: Yes, and I’m sure a lot of you watching are dealing with the consequences right now. And so you know, firsthand how strenuous it is and how difficult, but probably the first things is just waiting for that delayed payment, as Christian was talking about, it can take a while you got this awesome for grant, they granted TDIU back to 2010, and then you’re just waiting for the RO to actually implement that grant. And that can be six months or more. And so that can be a really frustrating process, you know that your payment is coming and yet it’s delayed. So that can be really tough, we all have bills and things to pay so knowing that this payment is coming, and it’s so delayed can be really stressful and that can lead to further financial difficulties, physical, mental stresses and it’s really tough. And also your disabilities are probably, they could be worsening, which has an effect on your claim stream and also they could be getting better, which also affects the disability. So those are something to really keep in mind and something that a lot of veterans deal with. And unfortunately kind of the sad reality is that a lot of veterans, they can pass away in that time period. And again, that’s very, it’s an unfortunate reality, but it happens all the time. And so I think in the beginning of 2016, in that Fiscal Year, there were about 23,000 appeals that were pending and about 1,600 of them were closed due to the veteran’s death. So that is something that is a reality.
Brad: And I know, I’ve talked to certain veterans and folks who’ve worked in this area, and they’ve commented that another issue with the long delay is that the government or VA is not paying you any interest in all this.
Lindy: Yes, yes.
Brad: You’re waiting 15 years to get your payment and you’re not getting anything, anything extra, money that you could have. So, we have question and that is if there’s a government shutdown coming this on Friday will that affect the VA Board? The answer is we actually have good news. So, the VA is fully funded. About half the federal government is funded and the VA is one of those components that is fully funded. So, our understanding is that everyone will be going full bore, all the employees will be on duty, even if there was a partial government shutdown. So it shouldn’t affect processing, shouldn’t affect your benefits, everything should be good to go. So, what are the factors that are contributing to the increasing appeals backlog?
Christian: Well, and I think you’re going to have another graphic to pull up here to refer to, so as you can see, there was a prior– priority was given to processing the claims backlog when there was a really huge claims backlog, like we were talking about before. And when an organization with limited resources has to move resources to prioritize one area, unfortunately that sometimes leads another area under understaffed or under worked, and that’s what happened to the appeals backlog. So, there’s was an inverse relationship to lowering the claims backlog to an increasing appeals backlog, unfortunately. Another issue is inactivity, so, unfortunately, all the time that a veteran is waiting for a claim to be decided or an appeal to be decided doesn’t mean that someone’s working on it. And we have a graphic that sort of shows the downtime. In some instances it’s just sitting in a metaphorical folder or I think it literally used to be on someone’s desk right when they still use paper files, literally in some someone’s inbox. So there’s a lot of downtime when it comes to processing claims. And then again, as we sort of and an unfortunate theme through the whole context of what we’re talking about today is errors. So there’s some statistics that we have that 13% of remanded appeals were returned to the Board without first finishing the remand instruction. So what happens then you go, you get all the way to the Board, right? It’s taken that five years for you to get to the Board. The Board says, “Oh no, there’s a problem. We’ve got to fix it, it goes back and it only gets partially fixed.” And so, what that means is it has to go back to the Board, the Board member will see the error and unfortunately has to go back to the regional office again, and this is sort of what they refer to as the hamster wheel of appeals. So that also delays processing time of appeals.
Brad: So it sounds as though this is a resource issue because it sounds as though folks are rushing to try to keep up with the amount of work and that perhaps historically, at least there haven’t been enough people working on these kinds of cases, is that a fair statement?
Christian: I think so. I mean, if there were an unlimited amount of people to work on it, and you would hope, right, that there wouldn’t be the same backlog, but that’s unfortunately not the reality.
Brad: So are there any solutions to this increasing appeals backlog? And how can VA get under control?
Lindy: Yes. So we think that some solutions and that VA has actually started to implement would be hiring more personnel, which again we said that they’ve started to do, which is great, but not only hiring personnel but making sure that they’re trained and educated and the adjudicators are familiar with veteran’s law and look through the file and make sure that they see every piece of favorable evidence and don’t ignore anything, and that speaks to rushing and taking your time with the file, but not too long and really doing a thorough job and getting it right the first time So, I think that would be great if they could do that. And then also, this kind of leads into our next discussion of appeals reform and hoping that has a significant influence as well.
Brad: So there’s been a lot of talk about the Appeals Modernization Act of 2017, otherwise known as Appeals Reform, or the AMA, I’ve heard it referred to which I personally do not like. But we’ll just say we’re going to use the term Appeals Reform because that’s what a lot of folks understand. So, do we think that this appeals reform that passed in 2017 and the scheduled to be implemented in 2019 is going to help with the appeals backlog and how and why?
Lindy: We hope so.
Christian: Yes, we do. We hope so. Do you want to start Lindy?
Lindy: Yes. So again, we hope so. I think one of the positive things that could come from it is that appeals reform is taking certain things out of what we deal with now. So what is known as legacy appeals, you know, you get your– you file your NOD, which leads to the Statement of the Case, which leads to the VA 9 and so on. So a lot of those central pieces are being taken out or being removed. So hopefully, maybe that will decrease the wait time without so many check marks and so many, maybe just clerical things that have to be done, the wait times will be lowered. So that’s my– excuse me, my hope and that it will be kind of speed the process along.
Brad: So fewer roadblocks for veterans.
Lindy: Fewer road blocks, fewer barriers. Yes. So, knowing if you have new evidence, you’re going to pick this lane your get decision and there it goes. So hopefully that will result in lower wait times.
Christian: Yes, and the supplemental claim lane is something that I’m sort of interested to see how it works, because in theory, it seems like that could be really great. Oh, they’ve told me that I need X medical opinion. You don’t have to continue to appeal until you get to the Board to finally get some sort of resolution to that, you can get the evidence you need, file a supplemental claim and then hopefully you’ll be able to get the benefit that you’re entitled to. However, my fear is that, just like when there was an increase in initial claims, there was a backlog and then VA moved resources to deal with the backlog claims, then it left appeals sort of not ignored but piling up. I just, am speaking for myself. I’m very interested to see how that plays out, because I would be worried a lot sort of maybe a potential similar effect happening with the stuff about claims.
Brad: That’s what it leads into my next question, and that is what are the potential roadblocks and forming the appeals process? I think you talked about some of your concerns Christian. What about you Lindy?
Lindy: Yes. One of the first things is that there won’t have to split up their time between the legacy of fields and the new appeals reform. So that can be difficult because we still have plenty of claims and appeals that are pending in the old system. So being able to work through those and at the same time dealing with the new system, I assume will lead to trouble maybe, or just taking some time to get used to that. So that’s one thing that I think of and then going you know, will pass that just the idea of having a new system it’s something that you know, there will be growing pains I’m sure for both practitioners and veterans who are going through it themselves. So I think just learning the new system, making sure you’re picking the right lane, you’re doing the right thing that’ll certainly come with like I said growing pains so that’ll be tough.
Brad: So I just want to comment on Appeals Reform and that is, we, here at CCK, have spent an incredible amount of time trying to learn about and understand Appeals Reform and what the new system is going to look like and I think after diving into a lot of this information, we’ve come to some very basic conclusions that it’s you’re really going to need an active competent representative to help you. Now, that can be a Veteran Service Organization, a VA credit agent or a VA creditors’ attorney. But I think it’s going to be really important for veterans to do that to get that help because there are a lot more choices in the new system. That’s one of the advantages, but there’s also a lot more areas where the veteran can get it wrong and if they do it wrong, it will have a negative impact upon their claim potentially upon their effective dates. We’re already seeing sort of odds and ends and there are parts of it that are confusing that just happened before that veterans had to do things but they didn’t have to make as many choices, so that was just an editorial comment.
Lindy: Yes, for sure.
Christian: Yes.
Brad: We will do– just to let everyone know we’re going to be devoting a several upcoming Facebook lives to Appeals Reform. Right now, we believe it will go live in February 2019. The VA has already been implementing it in a pilot program called RAMP which we’re not going to spend a lot of time on, but over the coming months after the holidays we’re going to be devoting a lot of time to talk about Appeals Reform and everything that we’re seeing, so this was just a little bit of a teaser. But with that, do either of you have any final thoughts. Christian?
Christian: So I mean I guess, all I would say is that there’s a lot of progress that has to be made. And hopefully in the future and with appeals modernization, they’ll be faster processing times and veterans will get the benefits that they deserve more quickly because this is just in my opinion too long for them to wait.
Lindy: Yes, I denote to Christian’s comments. Sometimes we encourage our clients to really think about the appeals that you’re filing in the claims here finally, because sometimes it can clog up the system. So if there’s something that you think you might want to file for, be prepared to have your diagnosis ready and everything along those lines. Just make sure you’re not filing anything just because, because that can often lead to longer wait times as well. So just think about that and be patient and hopefully things will work out. We hope appeals reform will be great.
Brad: Well again, thank you for joining us here at Chisholm Chisholm & Kilpatrick. This is Brad Hennings with Christian McTarnaghan and Lindy Nash. We appreciate you joining us talking about the claims and appeals backlogs in the VA system. Again, if you’ve got any additional questions or comments, please visit us on Facebook or visit us on the web at cck-law.com. Again, if you put in a comment you’ll be entered in to win one of our lovely mugs here that we’re going to be having a drawing to give away. I hope everyone has a happy holiday season and we will be back in the New Year with additional programming. Thanks.
