Over most of the last 44 years of my alter persona as a Veteran (yes, I capitalize it proudly now), I remained aloof. I was refused admission to the VFW in 1973 and accordingly shut up and moved to the back of the bus. Apparently, it wasn’t a war but a “boundary disagreement”. There must be a magic number of how many have to die before the asshats officially ratchet it up and accord it the sobriquet of an official war. It seems 58,000 ± a few hundred was a wee bit skinny to qualify back then.
Afterwards, I relished being a spectator on the sidelines. I got to hear a lot of different views from a lot of different Veterans who served in the same theatre of RVN/Indochina. I talked to repatriated “Canadians” who voted with their feet to be all they could be up there for a spell. I listened. I kept my peace- and my distance from all things Veteran- until I became very ill and realized what all the small print on that Contract I signed guaranteed me. My now 28-year marriage between the cabinet level agency promulgated to help all Veterans-not just myself- is a case study in how to not run a railroad. What transpired in Reno last weekend is one of the better-orchestrated Dog and Pony shows the VA has pulled off in many decades following the VJRA.
John Basser, Jerrel Cook and I did a radio show for Hadit.com Thursday evening last regarding the latest VA version of the panacea for the BVA backlog. I apologize but my feed lot owner Andy (20-year Marine) showed up with a load of hay and I had to bail out early. I would like to explain, as I did on the show in DickandJanespeak, what Congress just pawned off on us as a repair order for the 470,000 + queue of appeals and the chokepoint of only 120 Veterans Law Judges accomplishing 1.5 claims per day/per five-day work week times 180 working days a year (assuming no vacation time). Excuse me. Do the math, all ye VA beancounters. With 40-50,000 new appeals arriving annually, I don’t see it ever getting better. If anyone detects an anomaly in my math, please enlighten me.
Now to the problem. Let’s follow Johnny B. Veteran’s typical claim path in 2017. He files (in round figures) January 1. He now does all the old VA work of obtaining and filing (duty to assist) his intercurrent medical records, providing a privately-obtained nexus letter tying his disease/injury in service with his present one, and sits back to wait. 125 days later, he gets his denial (as do 85% of you). He goes to a DRO review a year or two later and submits nothing new because he’s getting free representation at the _________ (insert VSO here). Nobody told him about the nexus letter so he loses a second time. He appeals and arrives at the BVA and loses again. At some point, Johnny Vet figures this poker game out and gets the letter and wins. It may take 20 years before he figures it out. After he wins, he’ll spend another eight years getting the correct rating after even more appeals.
THE NEW AND IMPROVED SYSTEM
And boy howdy here comes the new VA three-card Monte system. Three new pathways are now open to you soon (eighteen months to rollout) with the misnomer of the Fully Developed Appeal. I wrote about this jokingly several years ago and wish I’d never given VA the idea. They even stole my moniker for it.
The first new pathway described is “you can take your appeal directly to the BVA” as the article puts it. Yes and no. You can take your claim to the BVA with no new evidence -as is- and ask them to reverse the local yokels at your Fort Fumble. No hearings, no discussion. No DRO review. No more evidence-essentially a drive-thru window the VSO can use to expedite your appeal to DC. If you’re missing the main ingredient (the nexus letter), all the VLJ’s men and all the VLJ’s horses at the BVA can only return one verdict-denied. Duh? Basically, this is nothing new. Take a minute and read a few BVA decisions here and you’ll get that deja vu feeling that this is a repackaged, sped up version of what we have now- with fewer protections. Read the following. The Vet is not a doctor and he doesn’t have a nexus letter…
The second pathway is “request a higher-level VA adjudicator” to hear the case. Deja vu strikes again. We have this function already. It’s nomenclature is more commonly known as a “Decision Review Officer (DRO) review”. We opt for this when we check the box for DRO Review at the time we file a NOD. Maybe Congress didn’t know this and VA pawned it off as a brand new way to do things. Shit, bubba. We’re talking VA here. They make this up as they go along or until the BVA or the CAVC clothesline them and make them obey their own regulations. It also appears here that they are intimating that you are asking for nothing more than a DRO review based on the same evidence you lost with. Repackaging it in a new review will simply result in a new denial. Again, no viable path to a ‘fair’ adjudication.
Lastly, a third new pathway is offered. An appeal or request with new evidence to the same rater who denied you from the get-go is the new pathway. Can you imagine losing a Hep C claim for jetguns and dental and “repackaging it” with a new nexus letter? I don’t think so. To date, I have yet to guide a single Vet to a jetgun win at their local Puzzle Palace. We win fairly regularly at the BVA where the backlog is but that is a 3-4 year path as it stands now and growing by the minute.
WHAT IS WRONG WITH THE SYSTEM?
What appears to me is no one will look at the current defect to identify where the prologue to the backlog begins. Remember the big pileup in claims in 2009-2014? The Local ROs were storing c-files in boxes on the floors under their desks. They were up to their asses in paper alligators. Under Secretary Hickey employed Secretary Shinseki’s new ‘paperless claims’ mandate and began the massive overhaul of the system culminating in DBQs and the VBMS. It wiped out the backlog at Fort Fumble but merely swept it downstream to the next logjam at the BVA. Does anyone think the CAVC will be immune from this incipient tsunami?
It’s not a f-up until you can’t fix it was one of my daddy’s observations on life. So let’s analyze this. If 74% of claims at the CAVC are vacated, set aside and remanded back to the BVA or AOJ to be “repaired” doesn’t that point to the guilty party? I submit that from statistics, it appears 64% of returned claims are approved or denied with an automatic appeal back to the BVA once the mistakes have been rectified. Imagine what would happen if this litany of errors had been avoided in the first place? The backlog of remands from the BVA would subside and they could get to work on claims properly ready for appeal rather than spending endless hours reviewing and remanding them for legal sufficiency.
VA touts a turnaround of 125 days for new claims with a 94% rate of accuracy but there is nothing there to support this bald contention. If 74% of your work is returned as defective, how is it that 94% can be correct? I”ll tell you how. If you deny 85% of claims and 94% of that 85% contingent of Veterans denied fail to appeal, then you can legitimately claim that your decisions were correct. The 6% who appeal and win are the remainder of the statistic.
The VA managed to eliminate the backlog at the AOJs by developing a Fully Developed Claim (FDC). You did all the work assembling the evidence. All VA had to do was get out the denial stamp. Oddly, the 85% denial rate remained static as could be predicted. With an extraordinarily efficient RO operating at peak efficiency, the large backlog was absorbed assimilated, adjudicated and the problem shoveled downstream to the BVA. VA can play Musical Chairs all day within their system but when they begin shipping them out and piling them up on the ninth floor of 625 Native Americana St. NW, there will be a new brouhaha afoot. I can’t wait.
And that’s all I’m gonna say about that.