VA staff buried by backlog of endless disability appeals
It’s a veteran-disability case that never ends.
In 1985, Ivan Figueroa Clausell filed a claim for a variety of conditions he said stemmed from a car accident while training with the Puerto Rico Army National Guard. The Department of Veterans Affairs ruled that he wasn’t disabled.
He appealed and lost. He appealed again and lost again, and again and again.
In all, the VA has issued more than two dozen rulings on his case through the years. Still, he continues to appeal. Even after he won and started receiving 100 percent disability pay, he
pressed on in hopes of receiving retroactive payments.
“I’m never going to give up,” said the 66-year-old Vietnam veteran. “I don’t care how long it takes.”
Figueroa’s is the oldest case among the more than 425,000 now swamping a veterans appeals system that advocates and government officials say is badly broken.
The appeals system does not have enough staff to handle the record number of veterans — from the wars in Afghanistan and Iraq as well as Vietnam — filing for disability payments during the past decade, then appealing when all or part of their claims are denied.
But experts point to a more fundamental problem. Unlike U.S. civil courts, the appeals system has no mechanism to prevent endless challenges. Veterans can keep their claims alive either by appealing or by restarting the process from scratch by submitting new evidence: service records, medical reports or witness statements.
They have everything to gain and little to lose by continuing to fight.
“There’s a gold ring, and there’s no requirement to get in line,” said Dr. Edward Zech, a thoracic surgeon and former Navy captain who serves as the medical adviser to the Board of Veteran Appeals in Washington.
“It is intuitively obvious that there will be a backlog,” Zech said. “If we keep doing what we’re doing, we’re never going to catch up.”
Any injury or disease that can be traced back to the time of active duty — whether it occurred in combat or training or on vacation — is eligible for disability pay, with no statute of limitations on when a veteran can apply. The VA processed 1.3 million initial claims last year, a record.
The backlog has occurred as the VA has celebrated its success in whittling down delays in processing new claims. Fewer than 80,000 veterans have currently been waiting more than 125 days for initial decisions, down from a peak of more than 600,000 two years ago.
The number awaiting appeals, however, climbed from 167,412 in September 2005 to 425,480 this October.
Veterans’ advocates say the VA has simply traded one problem for another, having shifted many of the agency’s workers from appeals to initial claims.
“They’re robbing Peter to pay Paul,” said James Vale, director of benefits for Vietnam Veterans of America. “Congress doesn’t give the VA enough money to hire the staff to do the job.”
VA officials say the appeals rate has held steady for the last two decades at about 12 percent. The sheer number of cases, however, has become unmanageable.
Appeals that can’t be resolved at VA regional offices across the country wind up at the appeals board. The 65 judges who handle cases ruled on 55,713 cases last fiscal year — an all-time high.
They held 12,738 hearings, often by videoconference. At that pace, it would take five years to see all 65,000 veterans with pending requests for a court appearance, a right guaranteed for any veteran who wants it.
Though judges can grant or deny a claim, nearly half the time they do neither and instead send it back to a regional office for more thorough review.
Cases often remain in the system for years in a slowmotion volley between the appeals board and the regional offices, with occasional detours to federal court. Inside the VA, it has become known as “the churn” and “the hamster wheel.”
According to the VA, 74 percent of current appellants are already receiving disability pay but want the VA to recognize more of their ailments or raise their compensation for those already approved. Ultimately about 1 in 10 appeals leads to higher disability compensation.
Some veterans never get an answer. Since 2009, more than 32,000 have died with their appeals unresolved, VA data show.
Alison Hickey, who until recently was the top VA benefits official, told reporters this summer that the current procedure was “inefficient and ineffective.”
VA officials say there are two possible solutions to the bottleneck: money to hire more lawyers, judges and other staff to process appeals, or a rewrite of the law by Congress. A proposal in Congress would create a pilot program that would fasttrack appeals for veterans who give up the right to add new evidence to their cases at a certain point.
“That has been incredibly controversial in the veterans’ community,” said Michael Allen, an expert on veterans benefits at Stetson University College of Law in Gulfport.