Timeline to reach BVA Video Hearing

[OEF 21B]

Just wanted to check and see if this was the average time from initial claim to the BVA video hearing:

AUG 30, 2010 - Initial Claim (VSO-DAV)

NOV 13, 2012 - Award & denial(s)

NOV 18, 2012 - Requested DeNovo DRO Review

APR 9, 2015 - SOC (Granted one, denied the remaining)

APR 12, 2015 - Form 9, Requested BVA Video Hearing

OCT 17, 2016 - Video Hearing Scheduled

 

Semper Fi

 

[Gastone]

A good friend had his BVA Video Hearing mid 05/16, No issues Remanded. still awaiting Decision Notice.

You might want to check out VA lawyer Chris Attig's post discussing his interview with a VA Judge. From his discussion, it appears that the BVA Hearing Judges act similar to Supreme Court Judge's Law Clerks.

They preside over the Hearing, confirm all Legal issues and Evidence has been addressed, then forward the Appeal with their recommendation to the Sr Judge. They probably write up the Final Decision, SSOC and what ever else is needed, for the Sr Judge's signature.

It's safe to assume, any type of  BVA Decision Notification, could take 6 to 12 months.

Semper Fi

[OEF 21B]

3 minutes ago, Gastone said:

It's safe to assume, any type of  BVA Decision Notification, could take 6 to 12 months.

Thanks Gastone.  I assumed that it would take anywhere between 1-3 years to receive the BVA decision, then another 2-5 years if anything is sent back to the VARO on remand.

You've gotta love the VA!!

Semper Fi

[Gastone]

When you have the time, might be informative to research 2015/2016 BVA Decisions that come close to your Issues. might even give you an idea regarding possible 'New & Material Evidence" that you could provide. You can send in N&M E all the way up to the 60 or 90 day cut off letter from the BVA regarding submission of N & M E.

VA Reg requires your RO to evaluate and N & M E received before the Appeal is Certified to the BVA and the BVA to address the N&M E, if received after the Appeal is Cert.

Semper Fi

[Buck52]

After you get your Docket # start pertstering  them a lot doubt it do any good  but from what I hear the BVA could take  18 months to 5 years   and no telling about remands.

[Buck52]

 Here is a DRO Article  about Appeals. from the Milwaukee Wi R.O.

 Note: first couple paragraphs you know about.

Additionally, if the veteran has requested a BVA travel board hearing or BVA Video conference hearing, the claims file remains physically at the Regional Office until the BVA hearing can be scheduled.

In the past, if any additional evidence was submitted which related to the issues under appeal, then the Regional Office had to review the additional evidence, and if the appeal continued, it had to issue a Supplemental Statement of the Case (SSOC) explaining why the additional evidence did not change the prior decision and give the Veteran 30 days to reply.  If yet more evidence was received, another SSOC was issued with another 30 day reply period.  There was no limit to the number of SSOCs which could be issued.  The appeal could not be certified to BVA until all of evidence in the claims file had been considered at the Regional Office level.

If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued.  Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA.

This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process.  Additionally, they will also have new claims pending in various stages of initial development.  Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary.  If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level.  It was only then that we could physically transfer the file to BVA jurisdiction.

Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect.  This change in law established an automatic waiver of Regional Office (agency of original jurisdiction) review of evidence received after receipt of the substantive appeal.  The evidence is subject to initial review by BVA unless the appellant specifically requests, in writing, initial review by the Regional Office.

However, to date, we have received no guidance from Compensation Service and Pension and Fiduciary Service on how to implement this provision.

Therefore, at least at the Milwaukee Regional Office, we are still issuing SSOCs until we receive guidance to do otherwise.  I would also note that I personally have seen two separate BVA Remands dated from April 2013, which is after the change in law, in which a BVA judge noted there was evidence in the claims file received after the substantive appeal which the Regional Office had not considered.  Both Remands ordered the Regional Office to consider this evidence as part of the reasons for the Remand.

Hopefully, however, Section 501 of Public Law 112-154 will help us certify and transfer appeals to BVA in a much more timely manner.  It will also, hopefully, reduce the number of Remands caused by the submission of additional evidence without a waiver of review by the agency of original jurisdiction.

As you can see, the appeal process is complex and concerns remain.

As there is no requirement to use a standardized form to file an NOD or a Substantive appeal, it is easy to miss an appeal as it may be hidden on page 22 of a veteran’s handwritten statement.

Furthermore, it is not always clear if the Veteran is actually filing an appeal or not.  For example, use of the word “reconsider” may or may not mean disagreement.  We try to clarify intent with the Veteran or Representative, but even then, the Regional Office may consider the veteran’s statement to be a new claim and issue another Rating Decision, but then BVA considers the same statement to be a missed NOD and Remands the issue for the Regional Office to send an SOC.

VA’s primary focus over the past several years has, understandably, been to find ways to break the backlog of claims.

This has resulted in Journeyman RVSRs feeling constantly pressured to produce more and more decisions at a faster and faster rate, while, at the same time, having their jobs threatened if their accuracy drops in the process.  There are, unfortunately, experienced Journeyman RVSRs who have either quit or retired because they could not tolerate the pressure any longer.

This has resulted in trainee RVSRs (Rating Specialists) being released to single-signature rating before they are truly competent or comfortable in their duties.

The focus on breaking the backlog of claims resulted in the hiring of numerous RVSR trainees over the past several years.  These individuals needed mentoring as well as someone to review the accuracy of their work until management felt they were sufficiently competent to rate single-signature.  In my office, the majority of new hires and internally promoted employees needed second signature review of their work for at least one year before they reached an accuracy level sufficient for single signature.  With the large number of trainees in our office, we did not have a sufficient number of Journeyman RVSRs to complete the reviews.  Additionally, the RVSRs were being mandated to rate claims above all else.  Therefore, the DROs were assigned co-signing and mentoring duties, which took up significant amounts of our time, which were then not spent working appeals.

RVSRs are being trained to use “tools” to help them generate their decisions, so there is nation wide consistency in decision making.  However, unfortunately, it appears the RVSRs are not being fully trained on how to actually analyze all of the evidence in a claims file, so they are not always entering the most accurate and reflective evidence of a Veteran’s disability picture.  Many RVSRs are now simply entering the data found in a VA DBQ Examination report into a tool, rather than looking at and weighing all of the evidence in the claims file.  As a result, we are getting appeals from Veterans and their Representatives noting the other evidence of record which did not appear to be considered.

Likewise, current rating procedures only require an RVSR to provide the reasons for the decision.  There is little to no discussion in the Rating Decision of how evidence was weighed and evaluated.  As a result, we are getting appeals from Veterans and their Representatives because they simply do not understand how we arrived at our decision.

Understandably, DROs are some of the most experienced and knowledgeable employees concerning the claims process at most Regional Offices.  However, as a result, we are regularly pulled from our appeal work duties and assigned other projects.  During the recent Nehmer review, I was one of three DROs in our office who worked Nehmer claims exclusively for almost six months.  We did not work any appeals during the Nehmer review.  I personally spoke to DROs from other offices who also reported they were not working any appeals during the review.

Most recently, the Milwaukee appeals team was informed our office would be brokering-in over 5,000 claims in various stages of development, all of which are over one year old.  The appeals team was informed we would be rating claims full-time through the end of the fiscal year, and other than priority cases, we would not be working any appeals during this time frame.

It is fully understandable that management needs the assistance of DROs to accomplish their goals; however, it is at the expense of the appeal workload, and as a result, appeals keep getting older.

In many Regional Offices, RVSRs work the Traditional appeals, and the DROs work the DRO elections.  Working traditional appeals is actually part of the job standard for RVSRs.  However, with the concern for the backlog of claims, the responsibility for working Traditional appeals is falling mainly on the DROs.  RVSRs are focusing on rating claims, not Traditional appeals.  There are far fewer DROs than there are RVSRs.  DROs simply cannot handle the volume of pending appeals on their own.  If we are going to make a dent in the appeal backlog, then we are going to need the assistance of the RVSRs.

Finally, VBMS is a concern for appeals.  First, while it has been rolled out nation wide, it is not fully functional and has more “work arounds” than can be described here.  The program regularly crashes for at least some portion of the day, so you cannot even use it.  Decision makers regularly lose work they have been working on for hours.  Either the program times them out and they lose their work, or they get an error message and everything just disappears.  The entire program seems designed for initial claims processing, which does not require a detailed explanation of the reasons for the decision.  However, for appeals, we still have to explain everything.  The program has no glossary or autotext, which makes typing a decision even longer.  It has no spell check, so the quality of our writing is poor in many cases.  It does not allow you to copy and paste from another document, which just requires more time to type out the decision, thus getting less work accomplished during the day.  Without any doubt, it has consistently taken me far longer to process an appeal using VBMS and VBMS-R than it ever took with a paper file and RBA 2000.

Finally, there really has been no guidance, to date, on how appeals will be worked into VBMS.  Currently, appeals are controlled through VACOLS without end products.  Therefore, any NODs which are received must be sent to the appeals team so a VACOLS record can be established.  Unfortunately, some NODs are being scanned into an electronic VBMS file without ever being sent to the appeals team.  Therefore, the appeals team does not even know an NOD was received unless someone has a reason to review the VBMS file for a different claim, or a Representative contacts us asking about the status of the Veteran’s appeal.  Right now, under current procedures, it is very easy to lose control of an appeal in VBMS.

Unfortunately, in the entire claims process, appeals seem to be forgotten.  When changes are made to the claims process and/or the programs used to process claims, very rarely is there direction or discussion on how the changes will affect appeals.

While reducing the length of time a Veteran must wait to receive a decision on a claim is very important, it cannot be at the expense of those veterans who are waiting for a decision on an appeal.  As an Agency, we must also be focused on breaking the backlog of appeals.  Why should a Veteran get a decision on his initial claim in 125 days (VA’s goal), but then have to wait 2 to 3 years, if not longer, for a decision on his appeal?
 

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[retiredat44]

mine took 6 years from the denial, and deny of the NOD's, etc..etc... not counting the original denials from 20 years ago, and many items on appeal. Now I am at the stages from a in in person BVA  judge hearing, he had it remanded, went to some more C&P's a few months ago, and they are back at the BVA judge. origin filings:1997. New claims and appeals 2009. Decided to not do a video, but wanted in person face to face with judge. it was to important to trust video, plus, the computers went bad and messed up while they recorded the in person hearing, they had to stop 2x in the middle of the BVA appeal hearing to call in a tech. A total clsuterF((*&k.