“Why Are Veterans Waiting Years on Appeal?: A Review of
the Post-Decision Process for Appealed Veterans’ Disability Benefits
June 18, 2013
GERALD T. MANAR, DEPUTY
NATIONAL VETERANS SERVICE
FOREIGN WARS OF THE UNITED STATES
FOR THE RECORD
DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
UNITED STATES HOUSE
WITH RESPECT TO
“Why Are Veterans Waiting
Years on Appeal?: A Review of the
Process for Appealed Veterans’ Disability
JUNE 18, 2013
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
On behalf of the men and women of the Veterans of Foreign Wars of
United States (VFW) and our Auxiliaries, I would like to thank you for the
opportunity to provide testimony for today’s hearing.
Current data shows 250,845 appeals are controlled in the Veterans
Appeals and Locator System (VACOLS) which tracks appeals pending in the
Department of Veterans Affairs (VA) regional offices, pension centers and the
Appeals Management Center. Appeals have been at
these levels for at least the last 18 months without significant
It is not just the number of pending appeals which is
astounding. In its annual report for FY 2012, released in
February, 2013, the Board of Veterans’ Appeals (BVA) said that it took, on
average, 1,040 days for a veteran to receive a BVA decision after filing a
substantive appeal. That is 2.8
years. Even worse, the appeal starts for the claimant/appellant
hundreds of days earlier when he/she files a Notice of
Two stage appeals process
The VA runs a two stage appeals process. When
a decision, a claimant generally has one year in which to decide to appeal part
or all of the decisions made by VA. The clock for VA starts when a
Notice of Disagreement (NOD) is filed. The VA is supposed to place
the NOD under control within 7 days of receipt.
The NOD is referred to a VA employee with decision making authority
equal to or higher than the individual who made the original decision.
Most appeals deal with decisions in disability compensation
claims. NOD's in these cases are referred to either a rating
specialist or a Decision Review Officer. NOD's filed in non-rating
cases are usually assigned to senior Veteran Service
Once received, an NOD will pend until a decision maker reviews the
original decision and, if they do not change it, issue a Statement of the Case
(SOC). An SOC essentially restates the decision with added
material outlining the laws and regulations pertinent to the decision.
For reasons discussed below, it can take scores of days for a veteran to
receive an SOC.
VBA sends a Substantive Appeal, VA Form 9, with the SOC.
The claimant has the remainder of the one year appeal period or 60 days,
whichever is longer, to return a completed Form 9. Failure to
submit the Form 9 within this period ends the appeal. Many
claimants decide not to continue their appeal at this point, either because they
have a better understanding of why the decision was made in their case, or
because they become frustrated with delays and legal sounding boilerplate and
decide to give up. However, many tens of thousands decide to
continue their appeals and submit the Form 9.
If the Form 9 is received within the required period the appeal
continues and is not closed until one of three things happens: the claimant
withdraws their appeal; VA grants the maximum benefit allowed by law; or the BVA
makes a decision. It is only this period, from submission of the
Form 9 to the issuance of a BVA decision, which is covered by the 1,040 day
average reported by the BVA.
To look at this differently, VBA reported that in FY 2011 the Houston
Regional Office averaged over 1,444 days from receipt of a NOD to the day the
appeal is certified to the BVA for their consideration.
It is apparent, then, that while the BVA may take over 250 days, on average, to
complete its work, most of this extraordinary years-long appeals process is
spent in VA regional offices, waiting.
VA regional offices are where appeals go to wait
For much of the last two decades appeals have been the step-child
VA claims processing. These claimants already have a
decision from VA. They may not like part or all of what VA
decided, but they have a decision. There are currently 1.75
million veterans and other claimants who are waiting for VA to take action on
their original disability claim, a reopened claim, a claim for an increase,
accrued benefits, burial benefits, a claim to add a dependent...the list goes
on. VA's workload is not just the 851,000 disability benefit
claims VA routinely talks about. However, these
claimants do not have a decision.
Since at least the early 1990's, every time VBA decides it must
reduce the backlog, local managers divert most personnel assigned to appeals to
assist in the project. Since the focus is on the backlog, Members
of Congress and the media fail to notice that appeals are not being
worked. The natural consequence of this choice allows the appeals
backlog to simultaneously grow, and grow older. Until last year when VBA created
Appeal Teams, most regional office appeals operations were understaffed.
Even when Decision Review Officers were allowed to work appeals, they had
huge caseloads and insufficient support staff to handle the work.
Inattention to appeals, pressure to move other work, and under
staffing of appeals operations created inefficiencies which spun out of control.
For instance, a high level VBA official involved in appeals recently related
that certain work management practices facilitated one segment of the work at
the expense of appeals. What he described was this: A veteran
submits an NOD on one issue while submitting a supplemental claim on a different
issue. Since the NOD and claims material were screened by
personnel trained to develop claims, they would initiate development first and
not submit the NOD to the appeals team. As a result, months would
go by before someone else noticed the NOD and placed it under
One problem appeals processing has in common with claims processing
is development. Many claimants either submit additional evidence
or identify additional evidence during the appeals process.
Additional evidence is rarely sufficient by itself to allow VA to grant
the benefit sought on appeal. As a result, VA is required to order
a VA examination. If the claimant identifies additional evidence,
VA is required to assist the claimant in obtaining it. Identifying
exactly the right action to take to properly develop an appeal remains a
challenge for VA. In FY 2012, the BVA remanded for additional
development 45.8 percent of the appeals it considered. A large portion of
these appeals were remanded to correct development deficiencies that were not
addressed prior to shipping the appeal to the BVA.
Many organizations and individuals have their own ideas about what
wrong with the appeals process and offer their own ideas for what should be done
to fix it. While some would argue that the unique set of veteran friendly laws
create obstacles to efficient appeals processing, or the creation of the
Veterans Court in 1988 has been an engine of redefinition and change to the
regulations and policies enacted by VA in a pre-Court era, or point to the
dearth of attorneys representing claimants before the Board,
the reality is that VBA has devoted too few resources, created too many process
inefficiencies, and failed to timely and properly develop too many cases for the
appeal process to be anything but dysfunctional. The VFW believes
that if these three things are properly addressed VBA should be able to
substantially shorten the time it takes to move an appeal from receipt of an
NOD, issuance of an SOC, process a Form 9 and certify a case to the
VBA recently concluded a one year appeals pilot at the Houston
Regional Office where many of these issues appear to have been addressed.
While we need to study the process more closely to ensure that veterans
were not harmed during this project, we are encouraged by what VA has
done. VA reports that during this pilot they were able to shave
1,000 days off the average time it took Houston staff to process appeals from
receipt of an NOD to certification to the BVA. While they did not
hit their target, they made remarkable strides in improving communication to
claimants and expediting appeals.
Unique system of laws
“The veterans’ benefits system has
been calibrated with
uniquely pro-claimant principles.”
In any discussion concerning the Department of Veterans Affairs,
is critical that all parties understand that Congress created a unique set of
pro-veteran policies when establishing programs for veterans and their
families. Principles which are common throughout the rest of the
law are intentionally absent or relaxed in laws dealing with veterans’
While these laws may create challenges for VA, they are not
insurmountable challenges. We posit that VBA has yet to put
sufficient effort into conducting development efficiently and
effectively. Development regimens are too complex, variables too
numerous, training too ineffective and oversight is largely absent.
VA has argued that if it could be only allowed to shorten waiting
periods from 60 days to 30 days, shorten the appeal period from one year to 6
months, that it would be able to process claims more quickly with higher
quality. We believe that two things are wrong with this approach.
First, VA seeks to penalize veterans and other claimants for its own
inefficiencies and inability to properly develop and control claims and
appeals. Second, VA managers would have you believe that the
solution to its problems rests with Congressional mandates and not with its own
inability to establish effective procedures, conduct meaningful training,
perform adequate and timely quality reviews, and ensure consistent managerial
oversight of the appeals process. The VFW strongly urges Congress to compel VA
to do its job, and do it correctly, the first time, and not to further restrict
“unique set of pro-veteran policies” enacted by you to ensure that veterans
receive the benefits they have earned through their service to the American
people in both peace and war.
Mr. Chairman, this concludes my testimony.
Information Required by Rule XI2(g)(4) of the
House of Representatives
Pursuant to Rule XI2(g)(4) of the House of Representatives, VFW has
not received any federal grants in Fiscal Year 2013, nor has it received any
federal grants in the two previous Fiscal Years.
Morning Workload Report; June 10, 2013 showing appeals data from May 11,
of the Chairman, Fiscal Year 2012; February 2013, page 19.
VBA requires claims be put under control within 7 days of receipt, the reality
is that some offices take much longer to identify and control appeals.
Appeals Design Team Briefing, January 2013, page 2