A Disturbing Court Case [Archive] - Scuttlebutt Forum by Corpsman.com

HMC-FMF-PJ

01-02-2009, 19:56

18. Dr. Katz, in an internal VA email dated December 15, 2007, wrote that "[t]here are about 18 suicides per day among American's 25 million veterans." Ex. 1247. The email further states that the "VA's own data demonstrate 4-5 suicides per day among those who receive care from us." Id.

19. In another internal VA email dated February 13, 2008, Dr. Katz wrote: "Shh! Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities. Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?" Ex. 1249.

2. VHA Budget
20. Paul Kearns, the VHA's Chief Financial Officer, testified that the VHA is not currently facing a budget crisis and has adequate money to "meet the mission requirements." PIRT 574:13-18. Dr. Cross agreed with this assessment and testified that the VA has sufficient funding to carry out its mission of ensuring that veterans have the medical care they need. Id. 225:12-23. Dr. Katz testified that the VHA's current budget provides enough funding to cover a "worst-case scenario" of an influx of veterans returning from Iraq and Afghanistan with mental illness. Id. 787:17-20.

22. Over the past few years, the VA has hired more than 3,800 new mental health staff. PIRT 739:12-13. There remain 500-600 unfilled mental health staff positions, out of a total of 16,500. Id. 419:12-22. In addition, for general health staff, the VA has approximately 1,400 unfilled physician positions out of 21,000 and 2,400 unfilled nursing positions out of 40,000. Id. 224:2-7; 231:9-13.

23. Dr. Rosenheck, Director of VA's NEPEC, concluded that for every $100 increase in per capita outpatient mental health spending, there was an associated 6% decrease in the rate of suicide. Ex. 446 at 118.

32. The May 2007 OIG Report also found 61.8% of VA facilities had not implemented a suicide prevention strategy to target veterans returning from Iraq and Afghanistan. Ex. 133 at 37. In addition, 42.7% of VA facilities had not implemented a program to educate first-contact, non-medical personnel about how to respond to crisis situations involving veterans at risk for suicide. Id. at 46. 70% of VA facilities had not implemented a tracking system for veterans with risk factors for suicide. Id. at 33. 16.4% of VA facilities had not implemented a system to facilitate referral of veterans with risk factors for suicide. Id. at 30.

57. ....... Thus, unless the veteran admits to having suicidal thoughts within the last two weeks, no further suicide screening is performed, even if the veteran admits to having recently felt depressed or hopeless.

HMC-FMF-PJ

01-02-2009, 20:17

BVA affirms RO and rules against veteran 40%
BVA grants veteran appeal 20%
- Veterans are more likely to win their appeal if they request a hearing but must typically wait 455 days before the hearing.
BVA sends the case back to the VBA and does not decide the veteran's appeal 40%
- Of this 40% remanded back to the VBA, nearly half were the result of the VBA employee errors and about 1-in-4 cases for violating their duty to assist veterans. Remanding adds another 500 to 560 days to the case.
- Of this 40% remanded back to the VBA, 75% are re-appealed to the BVA a 2nd time. Re-appealing adds an additional 149 days to the case.

For veterans who pursue an appeal to completion, it takes between 4 to 5 years on average to receive a BVA decision.

If the veteran dies, the appeal is immediately terminated. From Oct 2007 to Mar 2008, alone, at least 1,467 veterans died during their appeals. Not only does this artificially lower the "Appeals Resolution Time" because the appeal is considered "resolved" upon death, but the veteran automatically losses the appeal. This policy also artificially inflates the percentage of cases affirmed by the BVA (40% rules against veteran).

Most veterans are unwilling to file an appeal because of the extended delays, additional hassles, a low propability for success, and/or they do not know how to appeal. However, the court used the statistic that 88% of veterans do not appeal their case as a factor not to help the 12% that do appeal their case. Quite a circular argument. The system is so messed up that no one can stand to use it but since so few people use the system it is not worth the effort to fix it (but we don't have the power to fix it anyway).

62. After deployment to Iraq, soldiers aged 18-24 comprised 50% of the Army and 80% of the Marines. RT 357:9-19. 82% of the Army personnel deployed have a high school diploma or less. Id. 358:3-7. 89% of the Marines deployed have a high school diploma or less. Id. These figures indicate that many of these soldiers, once they separate and become veterans, may have difficulty navigating complex benefit application procedures unless they are provided with substantial assistance.

67. Average Days to Complete ("ADC") measures the time required to adjudicate all rating claims over a finite period. RT 900:12-902:8. ADC is computed by taking all rating claims adjudicated during a period, adding the number of days it took to complete each one, and dividing by the total number of claims that were adjudicated. Id. 900:12-18. As of trial, the ADC for fiscal year 2008 was approximately 183 days. Defs.' Ex. 541; RT 936:11-12. Thus, on average, it takes the VBA 183 days to adjudicate a claim filed by a veteran. RT 936:11-15.

71. To file a SCDDC claim, a veteran must complete and submit a 23-page application on VA Form 21-526. RT 408:12-20; Ex. 1069. Veterans often make mistakes when completing this application and veterans suffering from PTSD have a particularly hard time with this. RT 39811-13.

81. Although a veteran may be represented throughout the claim adjudication process at the RO, the veteran is statutorily prohibited from compensating a lawyer to represent him at the RO level. 38 U.S.C. § 5904. Thus, veterans may be represented by attorneys acting pro bono or, more commonly, by Veteran Service Organizations ("VSOs"). RT 932:20-934:21. VSOs are organizations that work on behalf of veterans. Id. The VA in some cases provides VSOs with office space in the ROs, computer systems and access to VA databases. Id. VA, however, does not provide training to VSOs regarding how to assist veterans. Id. 934:4-13. In addition, all of the VSOs combined cannot meet the needs of all the veterans seeking benefits. Id. 514:19-515:1.

88. On average, it takes an RO 182 days from the date a claim is filed to issue an initial decision on that claim. RT 936:8-12. As of April 12, 2008, there were 101,019 rating-related claims pending more than 180 days. Ex. 1322. VBA's strategic goal is to process all claims in 125 days. RT 936:8-15. PTSD claims take longer to adjudicate than average SCDDC claims. Id. 120:24-121:2; 406:21-407:16; Ex. 1264 at 160:17-21.

94. As part of the appeal process to the BVA, veterans have the right to a hearing before a BVA judge. 38 C.F.R. § 20.700; RT 528:23-25. At the veteran's option, the hearing may be held at the expense of the veteran in Washington D.C., or by videoconference, or at the closest RO in what is called a Travel Board hearing. 38 C.F.R. § 20.700; RT 529:1-4; 1017:16-1018:2. The Travel Board hearings typically happen only once or twice a year at each RO. RT 1018:3-16. If a veteran requests a hearing, he or she will have to wait, on average, 455 days. Ex. 1324 at VA322-00002653-54; RT 231:12-18; 581:24-582:2. Veterans who receive hearings are more likely to prevail on their appeal. Ex. 1243 at 5.

95. For veterans who pursue an appeal to completion, it takes, on average, 1,419 days to receive a BVA decision after filing an NOD. Ex. 1323 at VA322-00002552; RT 221:22-222:7. It takes approximately 4.4 years--182 days for an initial RO decision plus 1,419 days for a BVA decision--for a veteran to adjudicate a claim all the way to a BVA decision. RT 259:22-261:21. This 4.4 years excludes the time between an RO's initial decision and a veteran's NOD filing, which may be as long as one year. Id. 261:3-6.

96. The metric "Appeals Resolution Time" measures the average number of days, nationwide, that it takes to resolve appeals from the date an NOD is filed. RT 568:20-24. This metric, unlike the one described in the preceding paragraph, includes claims that are resolved before the BVA issues an opinion. Id. 568:20-569:3. If a veteran dies before the BVA adjudicates his appeal, the appeal is considered resolved. Id. 1174:2-10.

97. The Appeals Resolution Time increased from 599 days in April 2005, to 671 days by the end of February 2008. RT 563:14-16; 567:17-19. During this same time period, VBA's internal goal for Appeals Resolution Time increased from 500 to 700 days. Id. 563:14-18; 567:13-16. The Appeals Resolution Time is expected to increase by another 100 days in fiscal year 2008. Ex. 1264 at 15-16.

98. If one excludes from the Appeals Resolution Time those claims that are resolved, for whatever reason, before the BVA issues a decision, the Appeals Resolution Time jumps to 1,419 days, or almost four and a half years. RT 573:21-574:3. At trial, James Terry, the Chairman of the BVA, was unable to explain this lengthy delay in the resolution of appeals. Id. 575:21-576:9.

101. On average, the BVA affirms an RO's disposition of a veteran's claim only 40% of the time. RT 1007:10-11. The BVA, on average, grants a veteran's appeal roughly 20% of the time, and the veteran's appeal is remanded by the BVA to the VBA in the remaining 40% of the cases. Id. 1007:2-25.

102. Of the cases certified for appeal by the ROs, between 19% and 44% were "avoidable remands." RT 559:9-560:13; 1027:9-16; Ex. 1312. An avoidable remand is defined as an appeal in which an error is made by the RO before it certifies the appeal to the BVA. Id. 1026:21-1027:4. Almost half of the avoidable remands that occurred between January 1, 2008, and March 31, 2008, were the result of the VBA employees violating their duty to assist veterans. Id. 556:2-24; 1166:14-20.

103. A survey of VBA rating specialists at ROs found that 70% of them believed that speed in assigning ratings to claims was emphasized over accuracy. RT 161:23-163:3.

104. When the BVA remands a claim, the claim is sent either to the Appeals Management Center ("AMC"), or returned to an RO. RT 210:10-14. Once an SCDDC claim is remanded by the BVA, it takes on average 499.1 days for this claim to be granted, withdrawn, or returned to the BVA for a second time. Ex. 1243 at 13. It takes, on average, 563.9 days for PTSD claims to be granted, withdrawn, or returned to the BVA. Id.

105. Approximately 75% of the claims that are remanded by the BVA are subsequently appealed to the BVA a second time. RT 544:15-24. It then takes the BVA an average of 149 days to render a second decision on a claim that had already been remanded once and subsequently re-appealed to the BVA. .....

106. Between October 1, 2007, and March 31, 2008, alone, at least 1,467 veterans died during the pendency of their appeals. Ex. 1316 at VA322-00002613-24; RT 254:6-255:2. When an appellant dies, the appeal is extinguished. RT 1173:24-1174:1.

107. It is beyond doubt that disability benefits are critical to many veterans and any delay in receiving these benefits can result in substantial and severe adverse consequences, including the inability to make mortgage or car payments. RT 517:25-518:9; PIRT 324:13-325:5. Although a benefit award is generally retroactive to the date of the claim, the veteran is not entitled to interest. RT 551:7-14.

109. On April 16, 2008, the VBA proposed a new pilot program, in the form of a regulation, for expedited claims adjudication. Defs.' Ex. 557; 38 C.F.R. Parts 3 and 20. The two year program would be limited to four ROs. Defs.' Ex. 557; 38 C.F.R. Parts 3 and 20. The program would ask veterans to sign a waiver upon filing a claim whereby several time limits imposed on the veteran would be shortened. Defs.' Ex. 557; 38 C.F.R. Parts 3 and 20; RT 1169:9-19. In addition, the program imposes a time limit, albeit one that is unenforceable, on the VBA during the appellate process between a veteran's Form 9 filing and an RO's certification of appeal to the BVA. RT 1167:10-1168:22. There are no consequences for the BVA if it exceeds its recommended time limit. Id. 1024:11-16; 1168:10-14.

One of the most common reasons for a claim to be remanded to an RO is the VA's failure to meet its duty to assist veterans. This is proof that internal, avoidable forces within the VA are also creating these delays. Nonetheless, given the substantial number of claims and appeals received each year by the VA, and the fact that only 11% of veterans file Notices of Disagreement after their claims are adjudicated at the RO level and only 4% of the total claims are actually pursued to a decision by the BVA, the Court finds that the fourth TRAC factor outweighs the others. .....

Given that almost 90% of veterans depend solely on the RO adjudication process for their benefits, the Court is wary of granting relief .....