Abrams: VA Claims Backlog Not The Real Issue
By Michelle Williams
Ronald Abrams
Joint executive director of the National Veterans Legal Services Program
A lot of attention has been given this year to the backlog of claims at the Department of Veterans Affairs. But one veterans advocate believes that the backlog is not the real issue when it comes to some veterans having to wait years before they receive their benefits. Ronald Abrams, joint executive director of the National Veterans Legal Services Program, says the backlog is just the symptom. The real issue is that the "VA has to repeat its work on many occasions." NationalJournal.com spoke with Abrams about the claims process and his recommendations for reducing the backlog. Edited excerpts follow.
NJ: Why is there so much attention given this year to the claims process?
Abrams: The VA has a backlog of cases that's growing geometrically for a variety of reasons. And because now it's hit a million cases in a backlog, the VA is having a terrible time explaining to people why it takes so long to adjudicate claims. Think of the VA as a man trying to stuff an overloaded suitcase. The man sits in the middle of the suitcase and clothes fall out of either end onto the floor. If he sits on one side, clothes fall out of the other side. You just can't close the suitcase. But this isn't funny. It is veterans who are falling out of the sides. It's taking years for the VA to fully and completely adjudicate their claims. Too many veterans have to appeal to the board of veterans appeals and even to the federal courts. This causes years and years of delays, and many people, many veterans, who should be getting benefits that they've earned, have had to wait as long as eight to 10 years to get paid.
NJ: But the VA announced a goal of four months to adjudicate the claims.
Abrams: It seems to me not to be a realistic goal. It's going to take many more months than four for some veterans to get medical opinions, lay statements and for their representatives to prepare a good brief.... It's better to adjudicate a claim correctly and completely in nine months or a year than it is to do it six times over three years incorrectly, leading to all kinds of errors and churning of claims.
NJ: So are you saying that to reduce the backlog, the VA should take longer in reviewing the claims?
Abrams: Emphasizing quality is important. And one of the things that I want to emphasize is that many ideas that the VA is actually considering involve aspects of a factory production line. But veterans' claims are not widgets. And while there are some universals that apply to all claims, you can't just make rules for every claim and follow them. The VA tried to actually do that, and we think it's been a failure. They divided their workers in the regional offices up so that one worker would develop a claim and someone else would actually adjudicate the claim. But the person making the final decision doesn't get a chance to develop the claim or order development until after months and months of prior development by someone who is not as knowledgeable as the final decision-maker.We ask that the VA have teams. Let the development be run by the person making the final decision so that questions get asked correctly at the beginning of the claim. Also, in many instances, the VA should be able to pay some benefits before making a final determination. So if service connection can be awarded at a minimal rate, that's already in the VA rules; they can do that right now. And they should be encouraged to do that because that would allow the veteran to get all kinds of medical treatment.... We believe that a key to fixing this problem is to change the way the VA measures its work. Instead of awarding work credit when the VA makes what it calls a final decision, let the VA claim final work credit when the appellate period is over. That way the VA will work not to have appeals; the VA managers will be rewarded if they do a good job as opposed to just a fast job, and that's important. If we can get that done, it will help a lot of people. It doesn't make sense to give people credit for doing a sloppy, quick job.
NJ: So what else should we know about the magnitude of the backlog?
Abrams: The backlog is a symptom. It's not the problem. It's the inadequate VA adjudications combined with the influx of claims that is causing the large backlog. Backlog should not be the focus. That will come if you do the claims right. This is a complicated system. Things change because evidence comes after the first claim. We need people who understand the VA system, well-trained people to adjudicate these claims. The VA should reward good workers and should hold other people accountable if they don't do quality work. That would be a good thing.
NJ: What is the impact of judicial review?
Abrams: Well, the [Court of Appeals for Veterans Claims] was created in 1988. It started to have an impact in the early '90s. And what it did was put a cork in the bottle. The VA in the past would let veterans appeal to the Board of Veterans Appeals, and there would be approximately a 12 percent overturn rate. As a result of the court telling the board it was wrong on many occasions, the overturn rate at the board is now up to 24 percent. Believe it or not, cases that go to the Board of Veterans Appeals are reversed or remanded over 61 percent of the time. That is an incredible statistic.Now, in all fairness, some cases go back to the regional office or to the Appeals Management Center because the veteran has added new evidence to the mix or the law has changed. But when you add evidence at the board, it may be because someone finally figured out that the VA should have obtained evidence that they didn't ask for. So the veteran went out on his or her own and got that evidence. Even if we got that cut that rate down to 50 percent, in an agency or department... where it's an ex parte, non-adversarial system, supposedly veteran-friendly, to have 50 percent of the appeals come back because the VA did something wrong is unacceptable.
The news gets worse. When veterans appeal BVA denials to the Court of Appeals for Veterans Claims -- this is to a federal appellate court -- over 3,000 cases that were appealed to the Court of Appeals for Veterans Claims in FY 2009, over 80 percent were reversed or remanded.... The VA loses 80 percent of the time. In fact, in approximately 70 percent of all of those appeals at the court, the court has awarded EAJA fees, Equal Access to Justice [Act]. This means that the VA's position before the court was found to be substantially unjustified over 70 percent of the time. When Chief Justice [John] Roberts heard about that, he was shocked. Again, this is not an acceptable situation. Things can be changed without a lot of effort, and hopefully with the added concern of Congress, because Congressman [Bob] Filner, the chairman [of the House Committee on Veterans' Affairs], Congressman [John] Hall, the head of the subcommittee on veterans' affairs, are so concerned because they're having so many hearings, maybe the VA will get the hint and change how it adjudicates claims. I hope so.
Responded on June 28, 2010 10:02 PM
Sue Frasier
I am one of the VA's backlog cases and I'm also a national veterans activist who advocates for or against congressional legislation. Ron Abrams is a part of the problem and not the solution in the VA agency's claims crisis so it's always curious to us whenever mainstream news media uses him as any kind of a measure about what is or is not happening at the VA. We spend all of our time arguing around Ron Abrams and the trail of disconnect and misfires that he leaves behind in his rogue analysis of what is happening inside the broken disability claims system --- which by the way ----- ended up broken on HIS watch. We have learned to ignore Ron Abrams and all that he says about the VA agency and it would serve the public interest well if the mainstream news media would do the same thing. We do NOT consider him as any kind of an "expert" on the topic, and quite the reverse, see him as sharing in part of the blame for the mess that has ensued.
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In 1992 I filed a sc-heart disease claim. It was denied in 1994. In '04 I was awarded 10% SC for CAD as secondary to my SC-PTSD. My CAD claim was remanded to the AMC. I'm asking for an EED, with a higher than 10% CAD rating from 1992! I was told the AMC is setting up a new cardiac exam (probably the 10th), and I I disagree. I've been 100% SC-PTSD since 1998, but only 30% from 1992 thru 1998. From 93 thru 98, I had 6 angioplasties & open heart surgery performed. What I need rated are the years 1992/1998 which established stress resulted in coronary artery occlusions.
Responded on October 17, 2010 4:49 PM
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I care for a very ill veteran, who is rated 100% housebound, disabled. I fill out and file all VA applications and forms for him.
At one point he was "denied" benefits. The processor had all the dates, times and circumstances of his operations all wrong. The sad part is that all his care had been only at VA Healthcare facilities. I went so far as to draw color coded stick figures that displayed where and how drainage tubes and collection bags were located on the body, and sent a DVD called "Care of your Nephrostomy Tubes" that was produced by the Syracuse NY VA Hospital. His benefits were then approved.
I believe the people hired to "revue" cases are just not fluent with the medical care, medical needs, or the meanings of the medical terms used by health care professionals.
Responded on December 5, 2010 7:46 PM
Scott
My claim went all the way up to BVA and was remanded for about four years then denied again and returned to BVA. The BVA judge granted the sc issue and returned it to the regional offince in Oakland California for rating. Who ever rated the claim never review the medical evidence that the BVA judge spoke of in his grant of the claim so I was given on 10% compensation. I then had to appeal again to the DRO in Oakland asking them to review the medical records and give the appropriate rating which is 70%. It took a total of 10 years to get through BVA and now it has all ready been 1 year since I requested the DRO review. Haven't heard a word from the DRO, the file is just gathering dust in a box in the regional office awaiting the DRO review. I called the 800 number to see if there would be some kind of an up date and they can give me no information other than appeals are taking over 2 years at the DRO level. That means that it will have taken 12 years and possibly will take another 10 to get all the way back to the BVA judge who granted the cla...
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My claim went all the way up to BVA and was remanded for about four years then denied again and returned to BVA. The BVA judge granted the sc issue and returned it to the regional offince in Oakland California for rating. Who ever rated the claim never review the medical evidence that the BVA judge spoke of in his grant of the claim so I was given on 10% compensation. I then had to appeal again to the DRO in Oakland asking them to review the medical records and give the appropriate rating which is 70%. It took a total of 10 years to get through BVA and now it has all ready been 1 year since I requested the DRO review. Haven't heard a word from the DRO, the file is just gathering dust in a box in the regional office awaiting the DRO review. I called the 800 number to see if there would be some kind of an up date and they can give me no information other than appeals are taking over 2 years at the DRO level. That means that it will have taken 12 years and possibly will take another 10 to get all the way back to the BVA judge who granted the claim all ready. I am not the only one this is happening to, they just keep you on the hampster wheel going around and around. It is very disheartining to say the least. Still waiting for the DRO review, no decision in sight, I am now on my 11th year on this claim.
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As far as I know ( bytesland.com ) the language of the administrations proposal does not cover the retired disabled veteran. In 2009 Tom Philpott the military reporter interviewed the administration, and the administration stated that they are not covering the group of over twenty years, under 50% disabled veterans, because of the cost, and that was what logic they used to propose concurrent receipt for Chapter 61 retirees only. It would cost 5.8 billion dollars. The 2015 proposal simply means the catch all year for chapter 61 veterans who have the lowest disabilities. That is the 10-20% disabled chapter 61 veteran. No place in the initiative is the 450,000 retired disabled veterans under 50% disabled mentioned. In all proposal lanuguage, and reported statements on this policy the only quote in numbers is the 103,000 Chapter 61 veterans who would benefit. To finance the 450,000 retired disabled veterans over twenty years, and under 50% disabled would cost 2.3 billion a "year", far more than 5.8 billion quoted.
Responded on February 13, 2011 7:19 PM
Paul
I'm a retired veteran, after 21 years of service. I was fortunate that my claim only took 4-5 months to process, compared to the 24-48 months I've heard in other states. There are numerous issues that the VA can work on to make the process more efficient, but why not give the ones adjudicating the claims the right tools to work with, as this company offers, www.harkinc.com. Can you imagine, if all a claims adjuster had to look at was a 5-10 page report, based on objective data from the veteran's medical file, to make a quick determination? Think about it, instead of spending months or even years going over the medical file, one can look over a short report and make a solid determination on the case.
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The U.S. Department of Veterans Affairs (VA) Regional Office in Los Angeles and a majority of other Regional Offices throughout the United States have a serious and unprecedented backlog of claims. As of April of this year, the Los Angeles Regional Office had a backlog of 12,800+ claims pending and 3,100+ pending appeals. Nationally, the VA had 512,700+ claims pending and 90,800+ pending appeals. Video Cinema
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