VA officials this year told Congress that there were 806,382 disability claims, an increase of approximately 228,000 claims or 38% over FY 2000, awaiting determination. The number of cases with 8 or more claimed disabilities rose 135% over the same period. The increase in claims has resulted in an additional backlog to an already overburdened claims processing system.

Congress held hearings to find out how the VA is planning on managing the backlog of claims and how well it has reduced the average length of an appeal. Particular attention was given to the operation of the Board of Veterans Appeals (Board), which is the final administrative review for an appeal of a VA claim. The Board’s mandata is “to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner.” The Board has 56 Veterans Law Judges and 240 staff attorneys to get the job done.

Yet, testimony from the National Veterans Legal Services Program, the National Organization of Veteran Advocates, and several service organizations establish that the VA claims adjudication suffers from deficiency of resources such that it fails to effectively conduct appellate review. This is evident in the 741 days on average it takes for a claimant to receive a Board decision after appeal.

In FY 2003, for instance, the Board issued 31,397 decisions while remanding (or sending back for correction of errors) 42.6% the total number of cases reviewed. In FY 2004, the reward rate was 56.8%. In FY 2006, the Board decided 39,076 cases, remanding 32.8% of the total.

These numbers fail to tell the whole story. During 2006, the Board denied 71% of the cases it decided on the merits. Of the 18,107 denials, 2097 cases went on the the US Court of Appeals for Veterans Claims where only 21% of the Board’s decisions were affirmed. The process of a judicial appeal can add an additional teo years or more to a claimant’s appeal.

A remand by the Board usually means the claimant will endure additional delays. In 2003, VA Regional Ofiices were taking an average of 700 days to complete a remand. VA established the Appeals Management Center (AMC) to help alleviate the situation. In this month’s Congressional testimony, however, VA related that the AMC currently averages 343 days to process a remand and has 18,300 cases being processed.

Yet, when you think there is a little hope, a success story emerges that stands in sharp contrast to the norm. I recently learned of a veteran who was discharged by the military in May 2007 with a traumatic brain injury rated at 10% who, with the able assistance of a veteran’s advocate, received a rating decision for 100% this past August with payment made in September.

The House of Veterans’ Affairs subcommittee has vowed in a September 25, 2007 press release that “[a]ddressing the claims backlog will be a mojor focus for the rest of the 110th Congress.” Hopefully, Congress will stay focused on this issue and provide the resources and demand accountability so VA gets these backlogs under control.

About the Author:
Aichael R. Viterna is an attorney with the Northville firm Fausone Bohn, LLP.

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