Topics: Veterans Affairs

VA errors force more vets into years-long appeals on disability claims

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Phil Lindley would seem like the last guy who would get stuck in the unending bureaucracy of Department of Veterans Affairs appeals.

Yet he’s been fighting his way up and down the appeals ladder since 1997, trying to resolve a disability claim related to back injuries he received in a parachute jump while doing Ranger training.

Lindley is a lawyer who spent time in the Judge Advocate General’s office. He retired as a lieutenant colonel after 22 years in the Army.

Lindley gained national notoriety in congressional hearings as a Pentagon JAG officer who warned it would be illegal to use military assets to assist federal agents in the 1993 raid on the Branch Davidian compound in Waco, Texas, that led to the deaths of 76 men, women and children.

VA delays day by day

Average waits for veterans appealing disability claims
DAY 1
Veteran files a disability claim
DAY 310
VA regional office issues decision. Veteran has 1 year to file a Notice of Disagreement
DAY 580
VA regional office finishes its statement of the case.
DAY 620
Veteran files a formal appeal
DAY 1,312
Veteran's case reaches the Board of Veterans Appeals
DAY 1,565
Board of Veterans Appeals issues a decision
Veteran wins (28.4 percent)
Veteran loses (22.5 percent)
Case remanded to regional office for more work. (45.8 percent)
Veteran gives up
U.S. Court of Appeals for Veterans' Claims

Yet his military experience, legal expertise and political cache have done him no good. His appeal is still stuck in the system.

“They just throw the vets into the hamster wheel and see whether you can keep spinning it,” said Lindley, who over the years has attained a 100 percent disability rating for other conditions, but is still trying to force VA to recognize the injuries he sustained in the parachute jump.

“A VA employee makes a decision and the entire system just attempts to defend that position as opposed to going back in and seeing what’s wrong with it,” Lindley said.

“What they are counting on is that they won’t be held accountable and you will just go away,” he said.

Lindley is one of more than 264,000 veterans with disability cases on appeal.

The number has mushroomed in recent months as the VA has diverted experience personnel away from working those cases so they can process initial claims.

The number of pending appeals has increased by more than 13,000 since mid-July. Prior to that they had held fairly steady, hovering around 250,000.

A veteran who challenges a disability rating to the Board of Veterans Appeals, which handles challenges to initial ratings, faces more than four years in the system, based on average wait times published by VA.

Veterans’ advocates worry about the sudden uptick in appeals. Some of it likely comes because the agency has prioritized processing initial claims, they say.

More claims rated means more appeals filed.

Pressure to move cases quickly also leads to more mistakes, which leaves the veteran little choice but to give up or appeal.

Veterans Affairs Secretary Eric Shinseki said when he took over in 2009 that all initial disability claims would be rated within 125 days with 98 percent accuracy by 2015.

But the backlog of claims skyrocketed, peaking in March, when more than 70 percent of initial claims were older than 125 days. Thousands of those claims had lingered for years.

In response to pressure from Congress, veterans groups and the media, VA launched an initiative in May to target claims that were at least two years old.

Senior claims officers who normally worked appeals were diverted to handling initial claims to bring the backlog down. Appeals are not counted in the numbers used to gauge Shinseki’s pledge.

Shifting resources from appeals to initial claims to make the backlog numbers look better is an old trick at VA, according to the agency's Inspector General.

“VA can play with these numbers pretty easily, and they do it regularly,” said Joe Moore, a partner in the law firm Bergmann & Moore, which represents veterans in appeals.

“In the past few years, we have seen a transfer of resources by VA from appeals to original claims just to make the higher-ups look good to Congress,” Moore said.

It takes an average of more than 10 months for VA to give an initial disability rating. If the veteran appeals that decision, it takes another 42 months to get a decision from the Board of Veterans’ Appeals, based on agency averages.

In almost half the cases, the board determines there is not sufficient evidence to make a decision and sends the case back to the regional office for more work.

Of the cases the board does decide, it sides with the veteran more than half the time, according to its annual report to Congress.

Veterans who lose at the board can appeal to the U.S. Court of Appeals for Veterans’ Claims. Of the cases in which the court renders a decision, it sides with the veteran, at least in part, more often than with VA.

VA claims in agency statistics that it makes mistakes in less than 10 percent of the cases it rates. That figure is at odds with independent assessments from veterans service groups and the VA IG.

When the American Legion reviewed cases selected by the VA, it found between half and two-thirds had errors that would affect the outcome of a veteran’s claim, according to Verna Jones, director of veterans affairs and rehabilitation at the Legion.

Jones said she is trying to meet with VA officials to find out why the number of appeals has gone up so dramatically.

VA’s claim that it is right in more than 90 percent of its initial decisions is “divorced from reality completely,” said Moore.

“When they say it with a straight face, they are lying with a straight face,” he said.

VA officials did not respond to requests for comment.

For Lindley and more than a quarter-million other veterans, the appeals fight continues.

Some of it is money, he said. Having VA recognize the conditions related to the training jump would allow him to qualify for special compensation related to injuries sustained on hazardous duty.

The law, passed in 2008, allows certain retired veterans to collect full pensions and disability compensation without one offsetting the other.

But even without the added money, Lindley said he is determined to fight his case to the end.

“My only advice is you’ve just got to fight, fight, fight,” Lindley said. “You did it once for your country. Do it now.

"And in fact, if you go away quietly, you are only screwing every veteran that comes in behind you. Force them [VA] to do the right thing, because they are not doing it now.”

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