Veterans' appeals for benefits face long wait
By STEVE VOGEL | The Washington Post | Published: September 11, 2013
WASHINGTON — As the Obama administration touts its recent progress in reducing the enormous backlog of veterans' disability claims, a second backlog is rarely mentioned.
More than a quarter-million veterans are appealing disability-claim decisions they say are wrong, and in some cases they can wait four years or more for a ruling, figures from the Department of Veterans Affairs show.
The 256,061 veterans appealing decisions represent an approximately 50 percent increase since President Barack Obama took office. And more are coming. The Board of Veterans' Appeals, which makes the final administrative decisions on appeals, expects its number of pending cases to double over the next four years.
"I'm not looking for any special treatment here," said Matthew Goldberg, 47, a retired Army Special Forces soldier who served three tours in Iraq and earned three Bronze Star Medals. Since 2008, he has been appealing a VA decision that granted him limited disability compensation for post-traumatic stress disorder and a back injury.
"I just want to be treated with dignity and respect, and a lot of the time I didn't get that from VA," said Goldberg, who has sought higher compensation.
The appeals backlog has grown partly because the VA has directed resources away from appeals and toward the high-profile disability backlog, according to interviews with VA workers and veterans' advocates.
"VA is robbing Peter to pay Paul," said Glenn Bergmann, a former appellate litigator in the VA's Office of the General Counsel who now frequently represents veterans on disability-claim appeals.
VA Secretary Eric Shinseki acknowledged in an interview last week that appeals do not get the same emphasis as new claims but said that will change as the backlog shrinks. "Yes, there is a need to focus on appeals," Shinseki said. "This is an elephant. You have to take bites one at a time."
In recent months, amid criticism from Congress and the media, the department took dramatic steps to attack the claims backlog. It mandated overtime for new claims and directed disability cases older than one year be moved to the front of the line.
Gerald Manar, deputy national veterans service director for the Veterans of Foreign Wars, said VA officials at regional offices often make a "calculated decision" to pull workers off appeals and redirect them to new claims.
"Over the last three years or so, every time VA has made a push, they pull almost all of the employees out of appeals and into front-end work," said Manar, a former VA benefits manager.
Beth McCoy, assistant deputy undersecretary for the Veterans Benefits Administration, said VA headquarters has directed regional offices not to take workers off appeals. "It's tempting to take those appeals resources," she said. "But that wasn't our intent, and we continue to reinforce that."
A veteran who takes an appeal through all available administrative steps faces an average wait of 1,598 days, according to VA figures for 2012. If the veteran pursues the case outside the VA to the U.S. Court of Appeals for Veterans Claims, it takes an additional 321 days on average, according to court documents.
The duration in part reflects the fact that the process is meant to favor the veteran, who is allowed at any time to submit new evidence and thus extend a case indefinitely. But VA officials acknowledge that the appeals system must be transformed. Though the VA is converting the claims process into an electronic, paperless system, the great majority of appeals remain paper-bound. As appeals are digitized, more of the VA's 14,355 claims processors will focus on appeals and the process will speed up, McCoy said.
"We're not satisfied with how long it's taking on the rating side or the appeals side," she said.
To prepare for the influx of appeals, the Board of Veterans Appeals has hired 100 new lawyers in recent months and has begun a push to handle more cases by video teleconference, a step that can cut 100 days off the process, said Laura Eskenazi, vice chairman of the board.
The VA assigns veterans who file claims a disability rating, a percentage measure that governs compensation for disease or injury incurred or aggravated during active military service. About 10 percent of claimants challenge the rating.
Goldberg's case is not unusual. The Connecticut native, who joined the Army in 1985 at 19, took part in the invasion of Iraq with the 10th Special Forces Group in 2003 and returned twice, including a violent tour in Baghdad in 2005. Upon retiring from the Army in 2007, he filed claims for service-connected PTSD and physical ailments, including chronic back pain and leg numbness.
The VA gave him a total rating of 30 percent in 2008, ruling that his depression and shoulder, hip and knee injuries were not connected to his more than two decades of military service.
"For them to say 22 years later it wasn't service-related, it was a slap in the face," he said. In June 2008, he filed a notice of disagreement with his rating.
Once a veteran files such a notice — the first step in an appeal — it takes 270 days on average for the VA regional office to respond with a formal statement assessing the case and sometimes reversing some or all of the initial decision, according to VA figures for 2012.
For Goldberg, the wait was "maddening," he said. ". . . You submit your stuff, and then you wait. And wait."
After a year, in June 2009, Goldberg received a VA statement of the case saying it was standing by its initial decision. He filed a substantive appeal that August and then heard nothing.
The VA's regional offices take an average 692 days for the next step, certification of the appeal, a process that can involve gathering further evidence and that sometimes includes input from service organizations assisting the veterans, McCoy said.
Next, Goldberg was given a hearing before the Board of Veterans' Appeals in November 2011, two years and three months after he filed his substantive appeal.
The board hears cases sent by all 56 regional offices. "All of a sudden you merge down to one lane," said Rich Dumancas, deputy director of claims for the American Legion. "It's hard for the board to keep up with all the cases."
The board was able on average to make a decision in 251 days in 2012. But nearly half the time, cases are sent back for further consideration to the regional office, where it can take well over a year — on average, 445 days — to process.
Goldberg was relieved to get a hearing. "I thought I was going to get closure," he said. Instead, in April 2012, the board returned his case to the regional office, ordering new medical exams.
Based on the results, the VA in July awarded Goldberg a combined 100 percent disability compensation for his PTSD and physical injuries. But the appeal is not over; Goldberg is challenging the effective date of the higher disability rating, a decision that will affect the payment to which he is entitled.
"The VA tries to beat you into submission," said Goldberg, who was assisted in his case by the nonprofit National Veterans Legal Services Program. "They make it so difficult, guys give up."
For World War II veteran Joseph Groner, 89, the help may not come soon enough. Groner served aboard the Army Hospital ship Marigold when it docked in Japan in August 1945, weeks after the nation's surrender. Groner was pressed into service as an X-ray technician, despite no formal training and little protective equipment. Over the next several months, he took thousands of X-rays of newly released American prisoners of war.
About 20 years ago, Groner developed lesions and was eventually diagnosed with lymphoma. Based on doctors' assessments that the illness could be connected to his X-ray exposure, he filed a claim with the VA in 2007.
When the VA denied his claim, Groner appealed in 2008.
"I could never get a straight answer," he said. "Every few months I would call. The last time they said, kind of nasty, 'Don't call us anymore — we'll call you.' "
On Aug. 8, after five years, the Board of Veteran Appeals overturned the denial, based on a medical expert's opinion that Groner had been exposed to radiation levels sufficient to trigger the development of lymphoma.
But it will probably take the VA months more to process the case and make any payments.
"If they don't come through pretty soon, I don't think I'll be here," Groner said.