VA will miss its original 2022 deadline for resolving legacy appeals

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The Department of Veterans Affairs will no longer meet its initial goal of resolving all legacy appeals by 2022 after the pandemic slowed its progress, officials told Congress Tuesday.

There’s no doubt VA has made progress in recent years. The department reduced the legacy backlog from a high of 472,000 appeals in November 2017 to fewer than 135,000 today, VA said.

VA promised Congress it would resolve all legacy cases by 2022 when it worked with lawmakers to modernize the appeals program back in 2017, which gave veterans more options.

But the pandemic slowed portions of the disability claims process, making it more difficult for the Veterans Benefits Administration and the Board of Veterans Appeals to collect data and evidence needed to review an appeal.

VA hopes it can resolve the legacy backlog sometime in 2023.

“We don’t have the timeline yet. We’re working to set that,” Cheryl Mason, chairman of the Board of Veterans Appeals, told the House VA Committee Tuesday. “The delay in exams and records is impacting the VA’s ability to complete legacy remands and return those to the board. Currently, the board has approximately 102,000 legacy appeals that we are working through.”

VA’s previous appeals process was confusing, complicated and time-consuming for veterans. Veterans in 2015 waited an average of five years or longer for a decision on their appeals. The board infamously spent at least 25 years and 27 separate times adjudicating one appeal.

Today, veterans have three options for pursuing an appeal. They can submit their appeals to an experienced adjudicator, who will take a fresh look at their case, or they can file with a VA regional office, which will review and assist with developing new evidence to support the claim.

Veterans can expect to receive a decision within 68 and 82 days for the first or second appeal options, respectively.

Veterans can pursue a third option by appealing directly to the Board of Veterans Appeals. The board takes less than two years to issue a decision through this avenue.

These changes stemmed from conversations that began back in 2016, when VA convened a group of veterans service organizations, legislative staff and other advocacy groups to design a new, streamlined appeals process for the future. Congress used that feedback to write new legislation in 2017, known as VA Appeals Improvement and Modernization Act.

The department implemented those changes back in 2019, and VA is learning more about what veterans prefer.

Nearly 60% of veterans are choosing to appeal to the board through the new process, said Rep. Elaine Luria (D-Va.), chairman of the House Veterans Affairs Subcommittee on Disability Assistance and Memorial Affairs.

“It seems that a higher-than-anticipated number of people are actually choosing the hearing option than when this was originally put in place,” she said.

Veterans have told the board they see hearings as their only chance to be truly heard within VA.

“We completely understand that,” Mason said. “I’ve been a judge for a long time, so I understand that.”

Still, that’s creating pressure on the board, which is trying to meet the demand for hearings and juggle both the legacy appeals and claims through the new VA process.

The board schedules about 1,000 hearings each week, the majority of which are virtual, Mason said. But just 60% of veterans actually show up for those hearings, and that presents another challenge for the board.

Mason said she wants to gather VA officials, veterans service organizations and members of Congress for another summit to discuss those challenges, similar to the conversations the group initially held back in 2016.

The board held 15,669 virtual tele-hearings and adjudicated a record 102,663 appeals decisions in fiscal 2020. Still, the board today has a backlog of 91,000 pending hearings.

The board hopes it can bring on more  judges and support staff next year, if Congress approves additional resources. The White House recently approved the addition of 20 new judges for the board, which should also help alleviate workload pressures, Mason said.

In her testimony, Mason said she set a stretch goal for the board to hold 50,000 hearings in 2021.

In addition, lawmakers, auditors at the Government Accountability Office and veterans services organizations are all concerned the department doesn’t have a definitive plan just yet for tackling the legacy appeals backlog.

VA recently announced plans to automatically review claims from veterans who previously filed and were denied benefits for one of three presumptive conditions associated with Agent Orange, which include bladder cancer, hypothyroidism and Parkinsonism.

Those claims will generate new appeals and more work for VBA and the board, and lawmakers are worried VA isn’t prepared to handle sudden “shockwaves” to the system.

“If the board and VBA doesn’t have a plan put in place to address the issue now, we’re going to see a backlog that will continue to grow over time,” Shane Liermann, deputy national legislative director for Disabled American Veterans, told the subcommittee. “Three years from now we be may looking at a 150,000 hearings backlog.”

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