VA Case Backlog to Remain Until at Least 2023
Officials blamed the coronavirus pandemic for their failure to significantly reduce the appeals logjam. They expect the case backlog to continue until at least 2023.
“We don’t have the timeline yet. We’re working to set that,” BVA chair Cheryl Mason told the House VA Committee. “The delay in exams and records is impacting the VA’s ability to complete legacy remands and return those to the board. Currently, the board has approximately 102,000 legacy appeals that we are working through.” In 2015, most Veterans waited about five years for an appeal date. In 2016, lawmakers began the reform process. Now about 60 percent of Veterans elect one of the new fast-track appeal options.
Not everyone is as optimistic about the future as the BAV chair. “If the board and VBA don’t have a plan put in place to address the issue now, we’re going to see a backlog that will continue to grow over time,” Shane Liermann, deputy national legislative director for Disabled American Veterans, testified to the subcommittee. “Three years from now we may be looking at a 150,000 hearings backlog.”
Initial Review
Those 102,000 appeals are just the ones from the old system. In 2017, VA reformed the appeal system and should run through them faster. But it didn’t really change the initial review process. Because that process is still rather one-sided, plenty of claims are still going up on appeal.
Claims Examiners are supposed to approve petitions if the Veteran has a service-related disability. Furthermore, Claims Examiners have a duty to assist applicants during this process. These elements seem straightforward, but there is lots of room for interpretation.
A disability must include a current diagnosis of a recognized condition. That part is pretty easy. A C&P (Compensation and Pension) exam usually includes this diagnosis. The problem is the practical effects of the disability. Not all C&P doctors are fully qualified to assess all symptoms in all cases.
The service-related connection could be an issue as well. Sometimes, a legal presumption applies. In other cases, the Veteran’s service record clearly records the incident. But once again, not all cases are obvious.
A Claims Examiner’s duty to assist is almost equally subjective. They have to describe the disability well enough to inform VA and either answer all VA’s questions or explain why an answer is impossible. But how much information it takes can be very up in the air.
VA Appeals Process
A VA disability attorney often handles the appeals process. These veterans have a much stronger advocate. They also have three basic options.
The duty to assist also applies in supplemental review claims. This appeals avenue is ideal for Veterans who have new evidence, such as an Independent Medical Examination, to present. Frequently, an IME doctor, who is not affiliated with the VA, draws much different conclusions from the C&P physician.
Furthermore, the burden of proof is lower than it was before. In the past, the new evidence had to be almost game-changing before the VA would consider it. Now, an appeals body may look at almost any relevant proof.
Some claims are solid as-is. They just need a few presentations and other tweaks, which an attorney can furnish. A higher level review might do the trick in these cases. A more experienced Claims Examiner looks at the petition with fresh eyes.
Assistance For Higher-Level Review
There is no duty to assist in a higher-level review. However, the higher-level review process gives Veterans more control over the outcome.
The VA usually concludes such appeals within about four months. The waiting time for a Board of Veterans Appeals hearing could be three times longer. The longer wait could be worthwhile. BVA appeals essentially combine both a supplemental claim and higher level review.
At a BVA appeal, claimants or attorneys may introduce evidence, challenge evidence, and make legal arguments. Moreover, the administrative law judges on the BVA are much more experienced than local Claims Examiners.
Additionally, the benefits award is retroactive to the filing date, at least in most cases. Therefore, Veterans have little to lose by waiting except time, if BVA is the best option. The benefits in a disability case usually include monthly cash payments and free medical care.
Rely on Experienced Attorneys
Despite some improvements, the VA disability appeal system is still rather cumbersome. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.
