Expediting VA Claims – Can it be done?
If you’re interested in expediting VA claims, the short answer is unfortunately that it cannot be done. The VA has a rather rigid system of first-come first-served, and will not allow an attorney to push your case ahead of someone else’s case. Hiring an attorney, however, can speed up your case significantly by simply avoiding mistakes veterans make in representing themselves.
How the VA system works and how I interact with the system
I would first like to explain how the VA system works and how I interact with the system.
Upon taking on representation, I immediately send the VA a Notice of Disagreement (NOD) and a request for your claim file. Unfortunately, through a process called Freedom of Information Act, it generally takes 6-12 months for the claim file to arrive in our office. Thus, in addition to our efforts, you may want to try and obtain the claim file from your regional office on your own, as sometimes we see that clients receive their claim file faster. Once the claim file is received, I summarize its contents and compose an appeal brief. The appeal brief will be sent to the DRO (Decision Review Officer) or BVA with exhibits. This brief will be sent only when the RO or BVA informs us that they are ready to review your case.
The DRO process
A few months after filing the NOD, the regional office will send us an Appeals Election Form asking us to select the traditional appeals process or the DRO (Decision Review Officer). We will file the Appeals Election Form requesting the DRO process. The DRO is a senior officer at the regional office; he will review your case and has the power to award benefits. Prior to the DRO making any decision in your case, he will either offer you a hearing or ask whether you have any additional information to provide before he makes the decision. This is the only time I can intervene in your case. There is no reason to send an appeal brief to the VA until the regional office informs us that they are ready to review your file. An appeal brief sent uninvited will simply linger in a box with the claim file, or worse get lost. I am committed to review the contents of your claim file, draft, and file an appeal brief once the DRO announces that they are ready to review your file, either by a hearing or on the record. At that time the appeal brief will be sent to the regional office and a copy will be provided to you, so that you can bring a copy to your hearing.
After the DRO makes a decision a Statement of the Case (SOC) is issued. The rules require that Form 9, Appeal to the Board of Veterans’ Appeals, be filed within 60 days from the date of the SOC. Once the Form 9 is accepted, the BVA does not begin to work on your case, rather it waits for the regional office to certify the case to the BVA. The BVA is poorly staffed and cases are trickled to the BVA from the regional office. It will be 3 to 5 years before your case will be heard by the BVA. By law the BVA must contact us 90 days before they make any decision. I am committed to provide the BVA with a thorough brief raising all medical and legal issues prior to such a hearing. Again there is no reason to send a brief earlier as it will not be reviewed by the BVA and most likely will get lost.
There is strong data to suggest that waiving the BVA hearing, and asking the BVA to accept jurisdiction and make a decision based on the written brief may expedite your case and could shave two years off your wait time.
Based upon the hearing choice that you select, there are different tracks that the claim will follow both at the RO and at the BVA levels. If you request no hearing, the case will be prepared for transfer to the BVA and no further development will occur at the RO level. The RO then prepares a VA Form 8, Certification of Appeal, and sends you a 90 day letter, which indicates that the case is being transferred to the BVA. The letter informs you that you have 90 days to submit any additional evidence or arguments. This is when I file my appeal brief. Many claimants defeat this fast track and submit additional claims or evidence to the RO. The case, instead of progressing to the BVA, ends up lingering in the RO for additional development and the issuance of a Supplemental Statement of the Case (SSOC).
At the BVA
Shortly after the filing of the Form 9, the RO typically sends a letter to you that acknowledges the Travel Board hearing request, but also attempts to persuade you to request a different mode of BVA review. This letter explains that it could be months or years until a Travel Board hearing is scheduled, owing to the backlog of requests and the infrequency of the hearings. The letter advises you that you are on the waiting list for a Travel Board hearing. In 2009 the wait time was 771 days.
The average length of time between filing the appeal and the Board’s disposition was 886 days.
We can definitely shave two years off the waiting time by asking the BVA to rule based on the written appeal and avoid remand to the RO.
Source: Annual Report of the Chairman, Board of Veterans’ Appeals, Fiscal Year 2010
p. 19. http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2010AR.pdf
|Time Interval||Responsible Party||Processing Time|
|Notice of Disagreement Receipt to Statement of the Case||Regional Office||243 days|
|Statement of the Case Issuance to Substantive Appeal Receipt||Claimant||42 days|
|Substantive Appeal Receipt to Certification of Appeal to BVA||Regional Office||609 days|
|Receipt of Certified Appeal to Issuance of BVA Decision||BVA||212 days|
|Average Remand Time Factor||Regional Office||493 days|
|Time Interval||Type of Hearing||Average Elapsed|
|Substantive Appeal Receipt to Date of Hearing||Travel Board||743 days|
|Substantive Appeal Receipt to Date of Hearing||Videoconference||678 days|
|Substantive Appeal Receipt to Date of Hearing||Central Office (DC)||771 days|
What Can we do to expedite your case
I want to be clear that nor I, nor any other lawyer, can expedite your case. The VA clearly works on a first-come first-served basis and will not tolerate interference by a lawyer.
The most effective way to get communication from the VA is by recruiting your local Congressperson’s office to help you. By law the VA must respond to inquiries from members of Congress; each member of Congress has an officer with primary responsibilities to the constituents. The VA does grant some leverage to veterans with exceptional needs and if you meet these criteria your congressperson can petition the VA on your behalf.
There are certain things you can do to expedite your case:
Do not assume that the claim file contains the current medical information. Please go to your local VA and obtain the last two years of your medical records and send them to me.
Write a short narrative describing the major issues you are appealing and what evidence there is that these issues are service-connected.
Focus on no more than three claims which are best grounded by facts and have the potential for the highest rating. As discussed in more detail in another article entitled What is the VA Disability Rating System service-connected disability of 60% for one condition and 40% for another condition do not result in 100% disability, but rather 76%. Go to this site to calculate your combined rating or You may want to invest $0.99 in a phone app called “vetcalc” which can do the math for you. As your combined rating reaches 90%, it is extremely difficult to add new disabilities that will raise your combined rating. You need an additional 60% disability rating to reach 96% which will get you the 100% disability rating; anything below it will simply roll back to 90%. I have seen strong cases of veterans with 90% disability who file for TDIU while also attempting to add another disability of 10%. The VA will often ignore the major claim for TDIU and instead will schedule you for a C&P for the additional disability; after three years they may actually grant you 10% disability which will roll back to 90.
Nothing in the law prevents you from filing a new claim in the future. If you have well controlled hypertension but later on develop a stroke, you can always file a new claim at a later date.
In conclusion, the permissive nature of the Veterans’ Administration disability process, which is very different from the rules that apply to legal procedures and Social Security disability may actually work against you. The VA seems to turn your case back and forth between the regional office and the board and any time new medical information is provided or a new claim is added the case spins out of control. I strongly recommend that you pursue a strategy of narrowing down the issues to those that will most likely be approved and most likely generate the highest rating. If the claim is at the BVA, I shall provide the BVA with a detailed legal brief which includes the legal issues central to your case. I also attach exhibits from your large case file to facilitate review by the board lawyers. I can also attach a deposition of your testimony. To speed up your case, I recommend that we waive the hearing and focus on delivering to the BVA the most complete record. Once these measures are in place, I believe that we can shave at least two years off from the very long time frame needed to secure a successful award.