BVA BACKLOG–WE JUST BOUGHT THE BROOKLYN BRIDGE


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…

https://www.va.gov/vetapp17/files4/1724557.txt

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.

If they ever begin doing it right the first time, I’m out of a job.

And that’s all I’m gonna say about that.

 

 

About asknod

VA claims blogger
This entry was posted in All about Veterans, KP Veterans, Lawyering Up, Nexus Information, SVR Radio on hadit.com, VA Agents, VA Attorneys, VA Conspiracies, vA news, VA statistics, VBMS Tricks, Veterans Law and tagged , , , , , , , , , , , , . Bookmark the permalink.

18 Responses to BVA BACKLOG–WE JUST BOUGHT THE BROOKLYN BRIDGE

  1. Vicki Foley says:

    I’ve already spent enough money in Certified Mail costs over the last 24 years to pay for a semester of college at LSU. I would never consider submitting paperwork electronically without backing it up with CM. I’ve had to pull that little green card out several times to overcome the Presumption of Regularity, that annoying rule that assumes Veterans and their advocates are lying when they insist documents were sent when the VA denies ever having received them.

    • asknod says:

      They did it to me with my VA9 for my Greenhouse. Surprise!, Surprise ! Surprise, Sgt. Carter!. You signed for it right here. Remember? It’s called the common law mailbox rule.

  2. Pingback: BVA BACKLOG–WE JUST BOUGHT THE BROOKLYN BRIDGE – Communication Is Everything

  3. Michael says:

    Amazing and wonderfully timely info! JUST (Thursday evening) Filed my “Final Formal Certified Statement” to; V.A/ BVA/AMC/ Board of the V.A.; via their “magnificent” and new ONLINE submission option at http://www.ebenefits.va.gov! YAY! Transparency is IN, Opaqueness is Out! (Will V.A. regret their upward move into high e-tech?? Hope so! Meanwhile, my (soon) twelve year old Claim/Appeal (15-0389 CAVC) might soon (3-4 months) receive our last Denial which would bring us back to the CAVC for the proverbial 2nd round! Meanwhile, thanks to the New Online System, I’ve added Fifty pieces of material evidence within the last year; while/when the Appeal was OPEN to New Evidence; which means my RBA at the Court will be a much different story than the 1st time and Our Joint Remand! say a little prayer, eh?

  4. MS Frank says:

    Are class action lawsuits of possible utility in “bigly” reducing the backlog?
    Isn’t The American College of Trial Lawyers, as we speak, going back and forth between CAVC and the Federal Circuit, arguing to add that arrow to the Veteran’s quiver?

    • asknod says:

      Class action lawsuits recently were declared feasible at the Fed. Circus and will be entertained at the CAVC. I’m not sure they are entirely enchanted with the prospect.

      • Asknod! Would/could you define “declared feasible” for us? Also are you speaking of the CAVC and/or the next step up the Federal Court of_____ (escapes moi!) many thanks.

        • asknod says:

          The query was lodged and made it’s way to the CAVC several months ago. They denied class action venues citing to its not being in the rules of the Court but sitting as an Article one court, they can make it up as they go. The Fed. Circuit ruled as much about six weeks ago and remanded it back for action. So, yes, legally it is feasible now whereas before it was not. I’ve been inveigled to sign on and throw legal assistance into it. I’m too old and too busy saving lives to dilute my time further.

  5. Don Bichler says:

    Why doesn’t someone write a computer program for every contention or every major one, have plug ins: is there evidence of an in-service incident? Yes___ No___. Does the Veteran have a medical problem that VA has verified? Yes___ No___. Should be very simple. Lots of plug-ins even a sixth grader could enter. Where do they hire the raters from, walmart parking lots? And then their boss goes over the paperwork afterwards? So there seems to be quite a bit of collusion between these government workers that are working for “us” and getting bonuses for kicking them out the door. I know or hope it’s not that bad of a picture I’m painting but extremely frustrating when your appeal could bring you monies that could be used now and invested rather than wait and pay for the wheelchair instead. Or the box.

    • asknod says:

      Ooooh, Don. They did write a computer program for every contention.It’s called the M 21 1MR. It’s in print form as well and usually 8-11 months out of phase with current precedential law. The problem is the ‘technician’ typing in the entries.

      • Don Bichler says:

        I’m guessing the elderly part of my brain is not grasping the problem. I get the feeling I’m not part of anything anymore and things happen w/o me being in control like before. Evidently, M21 1MR exists but doesn’t? I’m sad for all of you that had to go through the jetgun bs and I don’t think I could have taken it. Too protracted and I beat myself up with just an appeal that is obvious to everyone that sees it. Appreciate a place like this. Thank you.

        • asknod says:

          More and more advocates like me are becoming accredited who truly understand the problem-as well as the solution, Don. Look for an article on Tuesday or Wednesday here illustrating how to win from the outset without being forced into a lengthy appeal. I began it brand spanking new in mid-March. VA touts 125 days as their standard of excellence. This one took a month and a half longer but they got it right the first time. Rare, I grant you but it shows what is possible. As Loyal (BroncoVet) likes advertise as the 5Ps-Proper preparation prevents poor performance. His advice, as usual, is spot on.

        • Hi Don, doesn’t asknod provide US with a genuinely interesting and provocative forum?!! I do so appreciate his effort on OUR behalf. Now, his comment about “current precedential law” which to my understanding/ having been there in 2015/2016 is the CAVC; U.S. Court of Appeals offers (FOIA?) free, viewable public record of all the cases/claims/Appeals that they process which is/are viewable on their website (Google; CAVC). Some of the issues/ actions/ portions of each Appeal has/have a Lock on it, meaning we can’t see those parts, which were probable private agreements or negotiations; for instance the behind the door meeting with both sides and their attorney/s regarding the Joint remand. Everything else such as Precedential Decisions appears out front and WE can access those. There is a LOT to learn herein; CAVC, as the law is honed/ refined/ explored and redefined. PROBLEM as asknod remarks is that the V.A and their Agents do not (to my understanding) study and acknowledge these (sometimes) changes in The law; and much to their detriment in the long run, or better yet to the detriment of vets expecting the V.A. to act on their behalf. I haven’t studied the latest legislation pertaining to the Appeal, but my quick summary tells me that it is not in the interest of any veteran who needed the previous option to have V.A. “assist” with their claim/appeal/ case. Am I wrong here anybody who is current??

        • SPrice says:

          Someone just won a jet gun claim after her husband passed away using the info we shared with her.
          We’re never giving up.

          • SPrice, and WITH the “New Online Options”; Once Registered on the website;
            https://www.ebenefits.va.gov that person; veteran OR vet’s relation CAN begin anew claim, look at what they’ve submitted and see the results or stagnation of their; Claim, Appeal or Inquiry. Yes, “We’re never giving up”! What have we got to lose that we haven’t lost already?

            • asknod says:

              And if you use it, you are twice the fool, sir. VA loses everything. Would you allow them to be the keeper of your records? They’ve lost, burned up, shredded and misfiled their way through our claims when they were on paper for the last 75 years. One slip of the finger and poof! All your “online stored documents” are gone. What’s to say an errant electron in VBMS prevented you from uploading a document. Perhaps you’re not as savvy as the average bear. It might go unnoticed and you lose your 60 day window to file a VA 9. Negatory. You always go to USPS Priority Mail three-day for $6.65 and crossfile via eFax to the EIC in Cheeseville. I’ve already had Vets report back that VA did not timely receive documents. Trust. But Verify with USPS. Cross verify with efax receipt. You’ll never lose an equitable tolling argument this way.

          • asknod says:

            And that, ladies and gentlemen Vets, is the power of the press 200 years later.

  6. K says:

    Perfectly said, as usual.

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