On July 21, 2016 attorneys filed an unusual pro bono suit to try to force the VA to speed up decisions on veterans’ disability claims, claiming the lengthy delays are unconstitutional and violate the veterans’ due process.
The suit claims that, on average, it takes 1,448 days from when the VA denies a veteran’s disability claim to when the Board of Veterans Appeals rules on the appeal. Thousands of veterans die before their appeals are decided.
John Chandler and Beth Tanis, who are married and with the law firm King & Spalding in Atlanta, have taken on the litigation through the American College of Trial Lawyers, where both are fellows. The group’s president connected them with Stephen Raber at Williams & Connelly in Washington, who has recruited more of his firm’s attorneys to help. A number of the attorneys are veterans who take a personal interest in trying to correct the VA’s delays. So far, they have filed petitions for 17 veterans and their survivors, and will be filing more as additional veterans and their families come forward to participate.
Legislation to address the cumbersome appeals process is pending in Congress, but the attorneys are not waiting for a deadlocked Congress to act. They filed a “petition for mandamus” with the Court of Appeals for Veterans Claims, which has exclusive jurisdiction to consider these kinds of delays. If there are statutes or regulations that are in the way of resolving these appeals more quickly, the court can declare them unconstitutional and order the VA to expedite appeals for veterans whose disability claims are denied.
Under the current process, a veteran must file a Notice of Disagreement to dispute a denied benefits claim. The VA then prepares a Statement of Case that explains why it was denied. On average, this takes 419 days. If unsatisfied, the veteran can file a Notice of Appeal with a regional office, which prepares a two-page Certification of Appeal. This takes an average of 537 days. The regional office files that document and the Statement of Case with the Board of Veterans Appeals. This takes, on average, another 222 days. It takes the Board almost another year to make its decision, making the entire appeal process about 1,448 days—almost four years. In the end, only about 19% of the denied claims are upheld, about 31% are reversed, and about 45% are sent back to the VA for more review.
The VA has been widely criticized for a growing backlog of benefits appeals. At the same time, a record number of veterans from wars in Iraq, Afghanistan and Vietnam are filing for disability benefits, and the number is expected to increase as more veterans return from deployments in the Middle East.
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