Too Many VA Appeals? Why?
On 15 September 2016 the US House of Representatives passed legislation to “reform the Department of Veterans Affairs appeal process.” The VA had pleaded for legislative relief from their current regulations in coping with a mounting appeals backlog and provided persuasive, albeit dubious, data. The 115th Congress may soon revisit this issue and risk unquestioning support for the VA proposals as opposed to actually benefiting veterans.
VA proposals to change the current appeals process include reducing the levels of appeal a veteran may choose and restricting submission of additional evidence if an appeal is in progress, as if appellants could control when such evidence becomes available. The present system has worked for decades to resolve problem cases, establish extensive case law, and to preserve the veterans’ appeal rights which are now threatened by the VA proposals to Congress.
Nearly a decade ago the backlog in initial claims began to rise (predictably, but that’s another story) beyond the capacity of routine procedures and existing staffing to cope. Disabled veteran claimants were waiting for years for an initial decision. Appeals specialists were detailed to assist in working down the backlog of initial claims which reduced the rate of processing appeals and directly contributed to the present two-years-plus appeals backlog. Detailing employees from other specialties to work initial claims increased the already high error rate for initial claim decisions which resulted in more appeals. Claimants not satisfied with hasty, erroneous decisions do tend to file appeals.
The VA claims to gauge their adjudication accuracy rates to a hundredth of a percent for a process requiring subjective interpretation of written standards to widely varying human disabilities and their causes. These accuracy claims give a false impression of exact metrics. Example: “94.39% 3-month issue-level accuracy as of 2/17/17.” Any error rate claimed by the VA for initial, issue-level adjudication decisions can logically only apply to decisions prior to their issuance date and could not possibly include corrections through appeals. The VA’s published methodology for determining adjudication error is not sufficiently transparent for meaningful review: “number of correct decisions divided by the total number of cases” does not disclose how the VA determined individual decisions to be correct or not correct. An American Legion study showed a 55% error rate. A VA Office of Inspector General study found error rates between 22% for claims remaining in the assigned office and 31% for “brokered” claims assigned to one office but worked in another. The types of errors are often glaring, such as applying the low-to-moderate hearing loss rating table to severe hearing loss or denying service connection for a disease considered an Agent Orange presumptive even though another Agent Orange presumptive disease had already been granted service connection by the VA for the same Vietnam veteran.
About 30% of Board of Veterans Appeals decisions result in reversal of initial decisions. The US Court of Appeals for Veterans Claims – external to the VA, under the Department of Justice – reverses an unknown additional proportion of BVA denials, unknown because the preponderance of USCAVC decisions result in remand to the BVA for reconsideration rather than a conclusive confirmed or reversed.
Many claimants do not appeal denials or lower than appropriate disability ratings regardless of the merits of their case. They are not familiar with the appeal process, are afraid of “Boards” and “Courts”, or just don’t have the energy or patience required to endure. Their initial claim decisions are sustained by resigned acceptance rather than valid review. There is no means to find, much less measure, this hidden portion of the overall error rate.
The current high level of initial decision errors encourages more appeals. Should the VA ever choose to focus on accuracy in initial claims adjudication the great majority of appeal decisions would confirm that accuracy, the incentive to appeal would be reduced, and the VA could work down the appeals backlog with existing procedures.
As long as any initial claim adjudication decisions are in error, which a few inevitably will be, we must not reduce the appeal rights protections inherent to the current system. To do so would harm the veterans, surviving spouses, and dependent children who realistically have no other avenues to pursue.
What of VA appeals decision accuracy? I helped a disabled veteran file his claim for compensation in February 2005. Twelve years later the US Court of Appeals for Veterans Claims confirmed his right to have his claim processed. The VA appeal process denied him six times. Each of those six added to the appeal backlog at the next higher level. Hundreds of direct time hours were wasted on what should have been a half-hour initial adjudication. Evidently it was easier – more efficient in the short term but wasteful in the long – to recycle the same denial rationale than to consider the actual merits of the case.
The Department of Veterans Affairs appeal system should remain as it is. Reducing the incoming flow of appeals by virtue of increased initial claim adjudication accuracy would render the claimed systemic appeal problems moot and would preserve veterans’ appeal rights and the benefits of established roles, interrelationships, and case law. Further, reducing appeal consideration errors would reduce the backlogs in higher level appeals including at the United States Court of Appeals for Veterans Claims. No Congressional action is needed. The root problem is accuracy. Let that burden remain where it belongs, on the executives and managers of the Department of Veterans Affairs. The human resource (focused training, performance evaluation) and organizational management (tracked case management, quality review, and process feedback) tools are available and have been successfully applied for decades by other federal agencies.
13 December 2019 Addendum: Whereas I previously could request a face-to-face personal hearing with a Board of Veterans Appeals veterans law judge for a veteran or surviving spouse client and request a location (such as the Indianapolis VA Regional Office) closer than Washington, DC . . well, now I can’t. No more personal hearings. There is an option for a “teleconference” remote video hearing between the judge and us. Not the same. I’ve had great judges guide me, sometimes with subtle hints and eye contact, as to how better to serve the veteran/surviving spouse. Happened twice in 2019. We won both cases. Might not have if we only met via teleconference. Thank you, clueless Congress, for approving this revision to the VA appeal system.
 Detailed Claims Data, Veterans Benefits Administration Reports, URL: <http://www.benefits.va.gov/reports/detailed_claims_data.asp> accessed 21 Feb 2017
 Legion Challenges VA Claims Accuracy, The American Legion, December 5 2013, URL: <https://www.legion.org/veteransbenefits/218017/legion-challenges-va-claims-accuracy> accessed 21 Febrary 2017
 Audit of Veterans Benefits Administration Compensation Rating Accuracy and Consistency Reviews, Department of Veterans Affairs Office of Inspector General, URL: <https://www.va.gov/oig/52/reports/2009/vaoig-08-02073-96.pdf> accessed 21 Feb 2017