Not to be outdone by the AOJs, BVA spokeswoman Sharon “Hell No” Hellman, recently promoted and transferred in from Phoenix to 810 Yellow Brick Rd. NW 20420, today held an important press event. Sure enough, at the corner of Delay Street and Deny Avenue, Ms. Hellman announced the roll out of the new Fully Developed Appeal and what to expect soon.
Said Hellman”Due to Director Laura Eskinazi’s unparalleled success with the Rocket Docket program, we were able to jettison, er, remand 25% of our backlog onto the AOJs in FY 2014. Sadly, it didn’t make any difference. Hey, we get it. The BVA appeal backlog is expanding exponentially like that National Debt clock in Times Square. Ms. Eskinazi has correctly identified the problem was Congress’ decision in 2007. They had no business letting attorneys into this process at the drop of the denial word. Now, because of NOVA and the NVLSP intransigence and insistence on real law, it takes four years to get an appeal decision. Everyone thinks they got dissed at their RO these days and Veterans’ lawyers aren’t doing anything to dispel the myth. To add insult to injury, they continue to clog the system with foolish, meritless appeals.”
Ms. Hellman’s assistant, Mr. W. E. Gunn went on to explain the process in more detail:
“The new Fully Developed Claims Process at the AOJ was built on the 125-day “develop to deny” theorem. Consequently, VAROs were clearing their backlog books and merely transferring the problem to us. Punting to the BVA on fourth and long was, and is, unfair. Two can play that game so we simply punted back and remanded 25% of the certified claims back for whatever we could find wrong. In any event, it was to no avail. Therefore, VA stakeholders convened at an unnamed Orlando luxury resort this spring and came up with some innovative ideas on how to fix the intractable problem.
First of all, the BVA prefers the term “Rapid Remands Program” over the boorish “Rocket Docket” vernacular coined by Veterans Law Judge Kelli Kordach. It more properly describes the process in terms Veterans and their representatives can assimilate. VA product testers insist it has that same catchy caché as “rapid rewards program” and Veterans are more liable to misinterpret it as such.
In order to eliminate the backlog for certification and appeal permanently, however, Ms. Eskinazi proposes the new Fully Developed Appeal or FDA for short. FDAs can also be decided within 125 days with 98% accuracy as soon as the VBA can run it up the flagpole in the Federal Register. VA will propose that Veterans, through their VSOs, summarize, in 300 words or less, why they think they should prevail. Their lay testimony will be accepted without regard to credibility, they are free to opine medically on their symptoms and in all cases the benefit of the doubt will be employed assiduously as it always has in the past. Since most Veterans and their representatives are functionally illiterate, most will not need all three hundred words to communicate their desires. In fact, few, if any VSOs, will actually see any change in the process except for the accelerated time to a decision. This is a win-win for all.
BVA law judges will decide these cases within 125 days or the Veteran wins by default. What could be more fair? There will be no Reasons or Bases section to explain the decision. There will be no legal cites. The 125-day process will commence when the BVA officially acknowledges it has. It is up to the Veteran’s representative to ascertain that date so as to avoid a failure to timely appeal. The decision will be a bare bones one-either thumbs up or thumbs down in much the same way the VA ran this show before the VJRA was enacted in 1988. The VBA proposes putting a thumbs up on all grants of compensation with a Smiley Face. They will be affixed to the Rating Decision envelopes. BVA psychiatrists tell us this improves Veterans perception of VA fairness and “balance”.
Should the Veteran or his representative desire a copy of the denial, we propose to attach the denial decal (ULUZ) to alert the Veteran of the impending depressing news. Far too many Vets get their Big Brown Envelopes (BBEs) expecting a win. Since this only happens 15% of the time, it would only be fair to prevent getting their hopes up.
If by some mira- ah- if the Veteran prevails, his/her claims file will be returned to the AOJ and a rating decision will be promulgated within six months or as expeditiously as possible after that. Should they lose, they will receive no notice. This is established VA law currently anyway and called “deemed denial”. It will be up to the Veteran or his designated VSO to contact the AOJ within sixty days of the expiration of the 125-day time limit to determine the loss and file the Notice of Agreement (NOA) with the Court of Appeals for Veterans Claims. Failure to do so will void the right to appeal to the CAVC. To simplify the process, Veterans or their representatives can mail in a self-addressed and stamped envelope within the sixty day period to ascertain the status. VA will promptly mail out a response in the envelope provided. Failure to affix postage to said envelope will be construed as noncompliance with the FDA offer and automatically renders it null and void.
Any failure to comply within the sixty day limit following the designated 125-day decision phase will not be granted equitable tolling. To take advantage of the FDA offer, the Veteran or his representative must file the VA 9 within 14 days of issuance of the SOC or SSOC at the AOJ. The request must be checked off legibly on the VA 9 and specifically enumerate which claims have been chosen for FDA status. The maximum number of appeals for an FDA is two (2) claims. Again, the strict word limit is three hundred per claim for a maximum of six hundred words over two. The address on the envelope will count towards the word limit (40 words). All claims must be sent to:
Department of Veterans Affairs
Cheeseville Intake Center
Building Number Six
Intake Loading Dock # 78
Attention: Fully Developed Appeals Supervisor/ Deputy Fully Developed Appeals Supervisor
Rule 900 Expedite (Optional) Yes [ ] No [ ] (check one)
Cheeseville, Wisconsin 86739-2440
Misaddressed mail to Regional Offices or the Board of Veterans Appeals will be forwarded to the Cheeseville address but the VA cannot, and will not, guarantee delivery within the 14- day time limit to protect the Veterans’ appeal. The above address is the only one approved. The date stamp, in any event, will be the deterministic metric. Equitable tolling is not for application with FDA claims.
At this time,VA is not able to extend this process to pro se Veterans or attorneys licensed to practice law with the Department of Veterans Affairs. This offer is only open to Veterans represented by the 46 Veterans Service Organizations currently chartered with Congress. We hope this will bring relief to hundreds of thousands of Veterans who are currently disenfranchised by the long waits. This equitable process is nonadversarial, Veteran friendly and will be a long-awaited shortcut to speedy BVA justice. VSOs have long advocated to remove the attorneys from this process as they are preying on gullible Veterans. We agree and the VA Secretary Bob concurs that to allow lawyers into the FDA process would merely throw more sand in the gears of BVA justice with no benefit accruing to the Veteran.
A comment period will begin today for sixty days and then VA will begin to institute the proposed changes. Thank you for your time. We have brochures on this but the printer ran out of ink. I’ll make sure all interested parties get copies of this briefing as expeditiously as possible. I hope that clears up any confusion on the new FDA.”
P.S. I am forced to add this postscript to say this is more of my humor. I honestly thought everyone would catch that. Apparently not. I assure you there is no such thing as a Fully Developed Appeal which is not to say Ms. Eskinazi won’t plagiarize my idea and create one. Amen