Why Do VA Appeals Take So Long?
When you are waiting for a decision on whether or not, and how much, the VA will pay you in VA disability payments, the wait time can seem painfully slow.
Why do these decisions take so long, sometimes years? There’s no “good” answer, but in this article we’ll recap the timelines for a VA disability claim and appeal and give you a little better understanding of why.
Initial VA disability claim filing timeline
To better understand factors that go into a lengthy appeal process, let’s first overview what happens with original VA disability claims.
A veteran claimant begins the VA disability claim process by filing a claim(s) at one of the many local VA regional offices. This claim sets forth the basic details of the veteran’s claim of entitlement to benefits for a service-connected disability. A VA employee called a Rating Specialist develops/expands on the claim by gathering evidence and then making a decision on the claim. This decision will be sent to the veteran in a Rating Decision.
According to VA statistics, the average time from application to receipt of a Rating Decision averages approximately five months (153 days).
A Rating Decision will either allow or reject the claim, and, if allowed, will assign a percentage of disability which is used to calculate what disability payments are to be made.
One way or another, a Rating Decision may not be the end of the process. Sometimes there is a rejection of the claim outright; sometimes the rating percentage is less than what it should be. Claim rejections are oftentimes due to fixable issues, things than can be corrected with an appeal. Similarly, rating percentages may be lower than warranted for reasons that can be corrected with additional evidence.
If the veteran disagrees with any determination made in the Rating Decision – either outright denial or improperly low rating percentage – they can appeal by filing a Notice of Disagreement or NOD at the local regional office. This appeal must be filed within one year of the date on the Rating Decision letter. While it may seem advantageous to file an appeal as soon as possible, the better course may be to talk with a lawyer first to help you better identify what additional evidence and arguments are needed to change the outcome.
The politics of pending claims
VA disability claims are handled in sequential order – oldest claims are handled before newer claims, and the VA has reported massive backlogs in pending claims. Obviously, that doesn’t look good for the VA and the easiest way to get rid of a huge backlog is to process claims faster and let’s be honest, it’s easier to reject a claim for some missing information or without an in-depth analysis, than to accept a claim.
The problem with trying to more quickly close out disability claims is that more mistakes are made on the initial Rating Decisions, and thus more veterans are going to want or need to file an appeal. Thus, the backlog of cases simply shifts from the initial claim level to the appellate level. As outlined in the Board of Appeals annual report for 2020, legacy appeals (the oldest set of appeals) were cut down from 347,975 to 174,688 pending cases, however, newly filed appeals ballooned during 2020 from 78,344 to 150,575. The bottom line is that there are a lot of claims and only so many trained personnel to process them.
How long does the process of a VA disability appeal take?
We will be honest here – VA disability appeals sometimes take years to complete. Unsuccessful appeals take less time to process because they are often denied for technical, fixable reasons. Successful appeals are those that are carefully planned and meticulously documented, and they do tend to take longer to reach a successful conclusion.
After the filing of an NOD, a veteran’s VA disability claim moves to the VA regional office’s appeals section, and will now be handled by a Decision Review Officer or DRO.
According to VA statistics, the wait time from the filing of an NOD (Notice of Disagreement) to receiving a DRO decision is 12-18 months.
These statistics, however, understate the wait time for many claims. If we are talking about poorly-represented claims, which DROs routinely deny, then yes, 9 months is a good estimate of the wait time. However, claims which are properly developed and prosecuted have a much better chance of success and also may take much longer. Properly developed and prosecuted, means:
- Obtaining the veteran’s VAMC treatment medical records, private treatment medical records, and in-service medical records
- Obtaining the veteran’s military personnel file (often necessary to prove psychiatric disability claims)
- Obtaining private one-time medical examination opinions to prove service-connection or to obtain a higher level of disability
- Submitting written legal memoranda in cases involving complicated legal issues
- Requesting a formal hearing with the DRO or an informal teleconference with them to go over the important factual and legal issues
An effective veteran’s representative will make sure that all of these procedures are completed. In other words, claim appeals that are more likely to be successful take time, often more than a year and sometimes two or three years. As described above, the massive case backlog that has been shifted into the appeal level is an impediment to a speedy resolution.
Whatever the length of time, the next step is the issuance of a Statement of the Case (SOC) issued by the ______________
Two tracks for VA Disability Appeals
There has been a recent change in how appeals are processed, creating a two-track procedure. For decisions issued February 19, 2019 or after, a new process has been implemented, whereas earlier decisions follow a “legacy” appeal track.
Decisions on or after February 19, 2019
The new process allows a veteran to select one of three decision review options, as applicable to their situation: supplemental claim, higher-level review, or Board Appeal.
A supplemental claim appeal is applicable if you, the veteran, have new relevant evidence that was not considered during the initial review. For example, this could include new physician diagnosis or treatment information since your original claim was filed.
A higher-level review appeal simply asks for a more senior reviewer to take a look at the same claim information again. This may be appropriate if there is no new evidence to produce, but it appears that the initial review missed things in the file that should have been considered in making their decision.
According to the VA, on either a supplemental claim or higher-level review process, a decision should be made within 4-5 months (their goal is within 125 days).(1)(2) However, in our experience it takes much longer.
A Board Appeal asks for the case to be reviewed by a Veterans Law Judge at the Board of Veterans’ Appeal. A Board Appeal can be taken directly from the initial claim decision, or a new decision on either a supplemental claim or higher-level review.
The BVA timeline is dependent on several factors, depending on your appeal approach. A direct review, where the VLJ only reviews the existing claim record without any new evidence or arguments, will take about a year. If you choose to submit more evidence, a choice that may strengthen your case, will almost certainly take more than a year. If you request a hearing with the VLJ, often a good idea, that will also entail a wait of more than a year. (3)
Legacy appeals (before February 19, 2019)
Legacy appeals are those that were filed before February 19, 2019 and the Board of Veteran Appeals has goals for processing the backlog there, but it is a slow process. Having to different dockets (after February 2019 and before February 2019), the VA is putting resources towards eliminating those on the legacy docket, but that in turn takes resources away from the non-legacy cases.
Can having a lawyer speed up the claims process?
The short answer is “no,” having a lawyer will neither speed up nor slow down the process. Claims and appeals are handled in order of receipt, whether the veteran has legal representation or not.
That being said, however, having an experienced lawyer provide assistance in preparing a more detailed appeal can craft an appeal in a manner more likely to avoid unwarranted denials. Law firms, of course, cannot guarantee outcomes of VA disability appeals, but they do have a wealth of knowledge from thousands of cases to help veterans make their best case on appeal. In fairness, a well-documented and properly constructed appeal may take a bit longer to get to a successful result, whereas a poorly presented claim may take less time to get to an unsuccessful outcome.
Veterans Law Group has been handling veterans disability claims for the past 20 years, and our job is to acquire and assemble the information the VA needs to easily grant your appeal. We collect reports, develop strategies, and make your best arguments to the VA on appeal. Contact us today for a free evaluation of your case.