I’m a man of wealth and taste.
It’s a good thing my VA researcher in Vermont, Maple Frank, is not named Bernie or there would be all manner of confusion. Frank has his ear to the ground in constant search of Mickey D’s doings at all times. While you can usually go to sister VA websites who are more conspiracy oriented to find out these things, many of the mainline military websites report quite well and keep us informed. They are also more “fair and balanced” in the truest definition of it.
So Sec’ Bob was up at the Senate moonwalking backwards out of the concept of excellence. He did actually come up with some late, post-Christmas wish list stuff . Nothing pressing. What he did tout was the unfurling of the “Battle Plan”. Most VASECS roll in with the beginning of a new Presidency and camp out for four years here and there extolling their grand new plans. Four years later, it’s lather, rinse and repeat. Sec’ Bob ran this one through the Proctor and Gamble spin test to see where he could improve the production line and turn out more decisions as Allison in Wonderland Hickey foretold of (and promised) in 2014.
Here we are one month into January 2016, i.e. almost 30 days past the magic incantation of 125/98 (125 days from stem to stern on a VA decision with 98% accuracy), and VA blithely begins a new 3-Card Monte game without a Quality Control assessment of the feasibility of VBMS as presently configured. Considering VA invented bean counters, I find it entirely unlikely that they do not have down-to-the-minute VA statistics on anything you want to know about-in real time.
USB Hickey did a splendid job of making the VBMS a reality. With or without her guidance, the inevitable has happened. The new intractable 125-Day metric has almost been accomplished but now there is a frank admission that the goal of excellence promised by Allison is not going to be forthcoming. Missed it by thaaaaaaaaaaaaaaaaaaaaaaaaaaaat much. It was unrealistic and a good catch phrase but let’s move on.
As promised and predicted by us here, the lump in the VA python has merely moved on to the BVA stomach. And due to 98% of the decisions being “correct”, a record 78,000 Veterans appealed their denials claiming there is error or an incomplete record.
The BVA Bottleneck
In 1961, the VA set up the modern BVA system of Veterans Law Judges. There were twenty Boards of three judges each in theory. One was also a Medical Doctor as well and wore two hats. In theory. Due to retirements and never having enough Judges on hand, they began a practice of allowing two judges to sit and even abandon any pretense of independence by also ignoring the requirement for one Judge to have his Medical ticket. In 1992. I got my first one of these rump justice decisions and wasn’t told I could go higher to the COVA.
This gives you an idea of how they treated us in 1992. Things haven’t improved. In 1994, due to the burgeoning backlog of decisions and Vets filing appeals, the Board was allowed to shrink to one VLJ with no medical credentials. This was due to the Colvin v. Derwinski (1991) decision at the new Court of Veterans Appeals (COVA). A Judge is not permitted to metamorphose into Dr. Kildare or Ben Casey and make medical suppositions. VA had been doing it for years. My link to my BVA decision above shows I had no doctors on my Board but they nevertheless committed the error. Oddly, we continue to see VLJs make this error or miss it on appeal from below.
Oh Lord won’t you buy me a brand new BVA?
Sec’ Bob is trying to run the same old game plan for the BVA to get rid of the 400,000 appeals with more being stashed into every basement corner at VAROs across the fruitless, winter plain daily. There simply is no more room in the basement at 810 for just the active files. The central filing center up in Bethesda is packed clear to the ceilings and the rest in PODS in the parking lot out back. 400,000 claims and a lot of them still in paper format which got the ugly stepsister treatment in the VBMS transition. Can you imagine how big some of our paper files get when we have 26 years of litigation under our belts?
If this was just one, unique case arriving at the BVA, it would be an anomaly. Imagine all of us who have tried scaling Mt. Olympus for years and years. We all arrive with the same luggage.
The repair order is simple but extravagant. VA would have to make all their staff attorneys acting Veterans Law Judges for about a year or three and let them dispense with the immediate, as well as the future, deluge from the 58 VAROs. In addition, hundreds, if not thousands, of clerks and administrative personnel would have to be hired. The current backlog queuing up at the BVA is not going to dissipate for quite some time. Some Vets went through four deployments and have now been RIF’d (Reduction In Force) at twelve years into a twenty year career and a retirement. They need medical and are going to put a heavy burden on the VA for decades to come. VA is drowning in Vietnam Veterans, be they in-country ones or Vietnam-era.
SUPPLY VS DEMAND
Zeroes for Heroes
The demand on VA is still exponential. Sec’ Bob’s theory that the lump in the Boa constrictor will pass is wishful thinking. Even if he could weather out a temporary fix with tons of “Acting” VLJs and rocket dockets, hiring two hundred more full-blown VLJs at $173 K/year wouldn’t even staunch the flow. This baby is hemorrhaging far worse than anyone will admit. Punting on fourth and 40 isn’t an option. All the VAROs have done is what was predicted-a huge backlog at the next stagecoach stop-the BVA. Develop the claims to deny them, they did. Yessssss. The raters even nicknamed it “Zeroes for Heroes” and laughed about it down at Saint Petersburg. Did anyone in the VA hierarchy look down from Mt. Olympus and say “Whoa there, Sloan. That’s gonna be like pouring concrete down the toilet. Maybe we should rethink where this VBMS thing is headed.”?
The same, tired outcome once again is the typical ending. Zeroes for heroes. All the hierarchy still have a job administering the interminable backlog. All the bean counters are being paid to predict what we see. All the VAOIG pukes are running from VAMC to VAMC and making clucking noises. All the judges are judging away but will have to go on overtime 24 hours a day, seven days a week for the next 10 years. Even hiring two hundred new judges and changing the rules to abolish remands whatsoever isn’t going to drain the swamp. If 70% of decisions coming from the VAROs are defective, deficient or outright CUE, then the backlog at the BVA will only get worse. They may have to bring in every former CAVC Judge to deal with the appeals to the Federal level.
The magic repair order is inconceivable. Imagine letting this out to a subcracker outfit like 3M or Xerox? Hand them a block of 150,000 claims and hire the attorneys on a case-by case fee basis. You can imagine what a truly independent process would look like. All of a sudden, the decisions are free of defect, legally reasoned correctly-and the Veteran wins. The dichotomy that would be revealed compared to the dog and pony circus at 810 Vermin Lane might sink the USS DVA.
VA can no more reinvent themselves than the IRS can. The task is unattainable and even worse- you ‘d have to want to change. VA personnel are quite content in their current nest and really would just like all this to go away-including the heroes. Hiring 100 new VLJs has one hitch. You basically hire them for life. If we reinvent drone warfare, they’re going to have to contract once again into Boards of three or five in twenty to thirty years to keep them all employed and gainfully occupied. Meanwhile, imagine taking 500 million sideways away from the disabled Vets and give it to the powdered bigwigs at the BVA.
Certainly no one in authority at the VA, the BVA or the Acting Undersecretary of VBA can look at us straight-faced and say “Wow. We really in all honesty can say we did not see this coming or expect that speeding up the millions of claims at the 58 Agencies of Original Jurisdiction would provoke this tsunami of Veteran’s appeals whatsoever. What’s more, we felt the actual 79 Veterans Law Judges we have currently, in addition to 90 “Acting” VLJs were adequate to the task of keeping up with the expected uptick following the introduction of the Fully Developed Claim process. Laura Eskinazi even gave me her very own personal reassurance herself. What we need here is a shit ton more money, Congressman Miller.
A great show is planned on Waiver of Review in the First Instance of new and material evidence submitted at the Board of Appeals level. You do not want to miss this one. Technique is everything nowadays and the latest tricks are helpful during this period of excessive backlog. Currently, the BVA has 444,000 appeals in the queue that they are willing to admit to. I suspect the number, were it to include all the appeals in a holding pattern at VAROs, would easily exceed twice that number.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
