Over the past several months, the Department of Veterans Affairs has taken several steps to dig out of a large backlog of disability claims, including imposing mandatory overtime for its employees and a new strategy to tackle the oldest claims first.

But VA’s congressional overseers say it appears the increased attention to new claims is forcing another critical part of the department’s workload, the process by which veterans appeal VA’s denial of their original claims, to take a backseat, and creating a new backlog that Congress can’t reliably track.

The complex, multi-step process involved in handling appeals by veterans who believe they were wrongfully denied benefits has seen a notable workload increase this year. In 2012, VA’s Board of Veterans Appeals handled 49,600 appeals. In 2013, it’s already seen 37,000. It expects the number to climb to 54,000 and perhaps up to 100,000 by four years from now.

And even today, veterans who appeal their decisions are waiting a very long time for a final answer. The board’s most recent report, covering fiscal year 2012, said it took an average of 1,040 days between the time a veteran submitted an appeal at a regional office and the board’s final decision.

And that’s only the second step in the three-step process, the final one of which is the Federal Court of Appeals for Veterans Claims.

“If a veteran subsequently appeals to the federal circuit, they might wait nearly twice as long,” said Rep. Gus Bilirakis (R-Fla.), who said he and fellow members on the House Veterans Affairs Committee were surprised to discover that while VA is now pushing all claims that are more than two years old to the front of the line for processing, that process doesn’t include appeals of claims, which were originally denied by VA.

Long, winding appeals process built up over the years

The department says it’s not that simple. While the responsibility for processing new or supplemental claims lies entirely within a VA regional office, the long and winding appeals process Congress and various administrations has layered on through the years involves several escalating steps and decision points veterans can pursue if their claim was denied at a lower level. It starts at the regional office, then goes to the quasi-independent Board of Veterans Appeals and then the fully-independent federal appeals court. The last two steps are required to reassess the claim from its starting point.

“I think it’s a very complex issue that’s been developed in a rather piecemeal fashion over the last 25 years,” said Bruce Kasold, the court’s chief judge. “You have two de novo reviews. You have a reopening of any claim at any time … this is a system that allows a veteran many, many, many opportunities to submit additional evidence. I’m not suggesting that’s wrong, but when you weigh that against the time it takes, that’s something you have to take into consideration.”

Kasold said Congress should establish a commission to evaluate the due process opportunities the multi-step appeals process gives veterans against the amount of time it takes the complicated system to reach a final verdict.

Keith Wilson, the director of VA’s regional office in Roanoke, Va., said the department’s default position during any point in the appeals process is that veterans should be able to prove their case at any point, and that VA will err on the side of granting benefits rather than not.

“The process, by design, is meant to try to grant benefits whenever possible,” he said. “That’s what we try hard to do, but it does lead to a complex process where there are often times circles in the process as you’re going out and gathering additional evidence. Ultimately, that’s a good thing if you can grant benefits to a veteran. But it does take a long time.”

Board of Veterans Appeals member appeals to Congress for helps

Laura Eskenazi, the principal deputy vice chairman of the Board of Veterans Appeals, said her board would like Congress to make several changes to streamline the process.

“I don’t know that there’s a silver bullet, but several of our legislative proposals are targeted at efficiencies,” she said.

For instance, her board should be permitted to hold hearings with appealing veterans via videoconference unless the veteran specifically requests an in-person hearing.

“We also need to alter the type of content we have to render in our written board decisions,” she said. “They’ve become lengthy and complex, and if we could simplify that it could lead to some efficiencies without taking away from the rights of veterans.”

But Eskenazi said the appeals process has suffered from some of the same procedural bottlenecks that have caused brand new claims to build into a large backlog. Among them is the fact that virtually all of the records that get transferred between various offices in the multi-tiered appeals process are still on paper.

VA is rolling out its Veterans Benefits Management System to turn the original claims process into a paperless one, but VBMS has just begun to come online for the appeals process during the last several weeks, and so far it’s only been used to handle 10 cases out of tens of thousands.

“We’ve done our initial training and we have about a third of our staff cleared to access the system,” she said. “We’re looking forward to gettin our hands into the system. So far, we’ve only done a limited pilot with inactive appeals to see what it looks like, but we’re going to work this, take some detailed notes and continue to work with the programming team to refine those requirements.”

The officials who make up the appeals system say they see the large wave of new appeals coming as VA continues to clear out its backlog of original benefits claims and as a new generation of Iraq and Afghanistan veterans make more use of the appeals process.

Eskenazi said her board is aggressively hiring new attorneys to dig through new appeals. Kasold said his court is one of the busiest appellate courts in the federal system, but it now has a full complement of nine judges for the first time in its history.

Still, several lawmakers say at the level of VA’s regional offices, they have significant concerns that appeals are being put on the back burner so that the department can process its backlog of new claims and make itself look better on paper, since VA doesn’t report to Congress how many of its appeal cases are backlogged at any given time.

Wilson, the Roanoke office’s director, insisted that appeals aren’t being given short shrift.

“We’re not interested in robbing Peter to pay Paul,” he said. “We’re not at all happy with the time it takes to process an appeal, and we’re not at all happy with the time it takes to process original claims. But we’re not letting this effort for the two-year-old claims interfere with the ability to continue to work appeals. We have not peeled off any of our appeals people to work those two-year- old claims.”

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