How long an appeal takes? (Legacy appeals)

[broncovet]

According to CCK law, an appeal takes 1573 days.  (4.3 years).  

Of course, this does NOT include the time it takes VARO to implement the decision.  Breakdown is here:

 

https://cck-law.com/news/long-va-appeals-process-take/

[HorizontalMike]

I am at just over 4.5yr on my appeals (+6.25yr on original claims so far).  The appeals were already in the BVA Judges hands in Sept. 2018, but then were inadvertently pulled into RAMP incorrectly.  Had to "convince" my attorney to to double-check on BVA status after receiving 3 (Three) denials from three different Regional Offices.  Not to mention that all appeals published on eBenefits and VETS.GOV are still incorrectly showing all my appeals as "complete".

If the VA can find a way to delay/deny, they will do just that.  It takes a long time...

[HorizontalMike]

Update:  After the Houston VARO's error of pulling my ineligible claims/appeals into RAMP back in September 2018, NOW one year later my lawyer and I  were forced to file for a Writ of Mandamus with the CAVC ( United States Court of Appeals for Veterans Claims).  As my lawyer indicated before we did this, the Writ of Mandamus is rarely given by the court and would be denied.  However, the CAVC gives the BVA an opportunity to submit a written argument opposing the Writ.  That basically ends up being a "wake up call" to the BVA to expedite my appeals and get them in front of a BVA Judge pronto. 

Well about a week ago, October 2019, my appeals were returned to a named Judge at the BVA to be adjudicated.  FWIW, the VARO's RAMP error cost me an additional 13-months in wait time.  At the time the VARO pulled my legacy claims, they were already in the hands of two named BVA Judges to be adjudicated.  One has to wonder just HOW and WHY did the VARO do this???  It surely was NOT to speed up or streamline ANYTHING.    This represents the depth and scope of just how low the VA Appeals process will do/go to DENY/DELAY any and all claims and appeals.  Fair warning folks, pay attention to each step of the process at all times.  I am currently at 8-years 1-month into my claim/appeal.

Background: I got my 100% TDIU T&P dated to July 2015, from an increase in my TBI to 70%.  My claims originated back to September 2012.  Between the proper retro-date and applying SMC-S to that original date as well, we calculate the VA owes me something just short of six figure$ in back-compensation.  Oh, and I do have the Decision Letter for TBI TDIU, and I have scanned it AND printed several hard copies for safe keeping.

 

Excerpts from the Houston VARO Decision Letter:

DECISION
1. Entitlement to individual unemployability is granted effective July 8, 2015

...The evaluation of residuals of traumatic brain injury to include mild memory loss, abnormal
social behavior, insomina and light sensitivity is increased to 70 percent disabling effective July
8, 2015..."  "...The examiner noted that your residual conditions attributable to a traumatic brain injury impact
your ability to work. The examiner stated that you also have a diagnosis of depression which
may also cause changes in cognitive function, but because of the considerable overlap of
symptoms between TBI and depression, it is not possible to determine if the cognitive symptoms
are specifically related to either TBI or depression without use of mere speculation. The issue of
depression is currently on appeal and will be addressed at a later date by the Appeal team..."

"...This is a partial grant of benefits sought on Appeal."

Edited October 19, 2019 by HorizontalMike

[vetquest]

@HorizontalMike, my most recent appeal took ten years almost to the date.  I was remanded once so I had two tours at the RO.  That is where most of my time was spent.  The good news is that when your case gets back to the BVA they go off of the file date, if yours is the oldest claim it goes to the front of the line.  Once when I was in Oregon on appeal and the RO had my case they sent it to Alaska and filed it that I was deceased.  Funny how imaginative the VA can be to hold up an appeal.  Yes, deny/delay is a favorite tactic of the VA.

[HorizontalMike]

Yeah vetquest, more of the waiting game.  What I found interesting/significant was the clear and succinct statement by Dept of VA in their "Revision" letter":

"THIS IS CONSIDERED A PARTIAL GRANT OF BENEFITS SOUGHT ON APPEAL"

And notice that the only disability that was rated and established my 100% TDIU T&P was/is my TBI.  Neither my MDD nor my OSA were included, and thus stand separately, as does my already existing 10% Tinnitus rating.  So all said and done, all I need for SMC-S is another 50% between OSA and MDD.  The VA changed their own regulations in 2013 that basically mandates that my MDD is a Secondary  Service Connected Disability and thus must be rated. So I know for a fact that my MDD will be rated, the OSA not as likely.

Got the fingers crossed for a bit more expediency this time around...

 

Additionally, posted in the 76196 Federal Register /Vol78, No242/ December 17, 2013 / Rules and Regulations:

Secondary Service Connection for Diagnosable Illnesses Associated With Traumatic Brain Injury

AGENCY: Department of Veterans Affairs. ACTION: Final rule.

SUMMARY: The Department of Veterans Affairs (VA) amends its adjudication regulations concerning service connection. This final rule acts upon a report of the National Academy of Sciences, Institute of Medicine (IOM), Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury, regarding the association between traumatic brain injury (TBI) and five diagnosable illnesses. This amendment establishes that if a veteran who has a service-connected TBI also has one of these diagnosable illnesses, then that illness will be considered service connected as secondary to the TBI.

DATES: Effective Date: This rule is effective January 16, 2014.

Listed ...  This final rule amends VA’s regulation concerning determinations of ‘‘secondary service connection’’ by identifying circumstances under which certain illnesses will, absent clear evidence to the contrary, be found to be the secondary result of a service-connected TBI.

TBI; (4) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI

 

____________________________________________________________________________________

Portion of Revision Decision Letter:

What We Decided

We determined that the following service connected condition has worsened, so we granted
an increase in your assigned percentage:
Medical Description       Old Percent        New Percent       Effective Date

Residuals of traumatic         40%                   70%                   Jul 8, 2015
brain injury to include
mild memory loss,
abnormal social
behavior, insomina
and light sensitivity

Basic eligibility to Dependents' Educational Assistance is established from July 8, 2015.

We assigned a permanent 100% disability evaluation for your service connected disabilities
effective July 8, 2015.

We granted entitlement to the 100% rate effective July 8, 2015, because you are unable to
work due to your service connected disabilities.

No examination will be scheduled in the future for your permanent and total disabilities.

Your overall or combined rating is 70%. We do not add the individual percentages of each
condition to determine your combined rating. We use a combined rating table that considers
the effect from the most serious to the least serious conditions.

THIS IS CONSIDERED A PARTIAL GRANT OF BENEFITS SOUGHT ON APPEAL
 

We have withheld 20% from your award for attorney fees per your signed agreement we
received with your private attorney. You will receive a separate letter regarding this
withholding in the near future.

[vetquest]

They probably did not mention MDD because you can only have one mental health rating.  I have PTSD and a depressive disorder but they only rated the PTSD.

[broncovet]

I currently have 2 appeals at the BVA.  One is from 2008, another is from a CAVC remand in 2018...10 years apart.  I dont know if they will be combined or not.  One is on the effective date of tdiu, the other is on SMC S.  

I dont know how ebenefits got the 2008 date, my records show the decision was in 2009.  

All in all, I have been in appeals at VA since 2002...17 years.  One way they delay/deny is to chop the claim up into various components, and adjututicate only one or two of those.  Another is remands.  

However, VA does not think waiting 17 years for benefits is a long time.  This guy waited 60 years.  https://www.nytimes.com/2012/01/26/us/veteran-denied-disability-to-be-repaid-after-60-years.html

I thought they were supposed to prioritize claims over 10 years old, apparently not.  So much for the "claims will be processed in docket number order" hypothesis.  If they were done in order received, how come the above Vet, Mr. Macklem, didnt get his benefits oh, say 50 years earlier???