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Retiring judge calls VA appeals system a ‘tragedy’

Sheila Pankoke, McDonald Army Health Center Preventive Medicine Community Health nurse, explains in-processing paperwork to a newly-assigned U.S. Army Soldier at Fort Eustis, Va., May 11, 2015. (U.S. Air Force photo by Senior Airman Kimberly Nagle/Released)

The retiring chief judge for the U.S. Court of Appeals for Veterans Claims told lawmakers Tuesday that the Department of Veterans Affairs appeals system is “ancient” and “inefficient” and in need of drastic change.

While testifying before a House Appropriations subcommittee, Chief Judge Robert Davis said the pressure on VA employees to get through a large backlog of benefits claims leads to poor decision-making and a high number of appeals. Davis, a Navy veteran, has held a seat on the Court of Appeals for Veterans Claims for nearly 15 years. The court, often referred to as “Veterans Court,” provides veterans an impartial review of decisions made by the VA Board of Veterans’ Appeals.

“I think it’s a tragedy, the way the system operates currently,” Davis said. “I think we’ve been tied to a structure that is ancient and inefficient. The sooner Congress and all of us in this area look at this system from a 50,000-foot level and say, ‘We need to make these kinds of adjustments,’ the sooner we’ll be able to meet the needs of our veterans in a much better way.”

Davis has been critical of the VA system. The topic was brought up Tuesday by Rep. Matt Cartwright, D-Penn., who cited an August article by the Wall Street Journal in which Davis criticized the appeals process as “horribly flawed.”

“We can’t ignore that when you come here to testify, chief judge,” Cartwright said.

‘Cautiously optimistic’ about new law

Davis elaborated Tuesday on his comments to the Wall Street Journal. He said he remains skeptical of a new law implemented last month that VA officials promised would allow veterans to receive decisions on their benefits claims in days or months, instead of years.

The new law, titled the Veterans Appeals Improvement and Modernization Act, was approved by Congress in 2017 and went into effect Feb. 19. It involves multiple avenues for veterans to appeal their claims, including an option to get a review from a higher-level adjudicator or go directly to the Board of Veterans’ Appeals.

Under the old system, veterans waited three to seven years to reconcile their appeals. The new one could get veterans through the process in as few as 125 days, VA officials vowed. Officials also said the new system would help cut down the backlog of appeals, which included 402,000 cases as of last month.

“I’m cautiously optimistic that this modernization act may help the system, but in my view, congressman, it is tinkering around the edges, when a larger fix is needed,” Davis said. “And it’s a fix that might be viewed as radical by some.”

When pressed for specifics, Davis suggested using mediation to negotiate a settlement between the VA and veterans or providing them general pensions. He said there were “a lot of possibilities” that he believed should be discussed with the VA secretary.

Once he retires from the court, Davis agreed to discuss the issue further with Rep. Debbie Wasserman-Schultz, D-Fla., who is chairwoman of the House Appropriations Subcommittee on Military Construction, Veterans Affairs and Related Agencies.

Court experiences a ‘second surge’

Davis appeared before the subcommittee Tuesday to discuss the court’s budget request for fiscal year 2020, which totals $35.4 million. The proposed amount — released Monday as part of President Donald Trump’s budget plan — didn’t increase from the fiscal year 2019, though Davis said the court experienced a surge of work in 2018.

The court had its first surge in 2009, when its case load increased from about 2,000 cases each year to more than 4,000. That year, Congress temporarily approved two more judges to join the court, bringing it from seven judges to nine.

Davis described a “second surge” last year, during which the case load rose from about 4,000 to more than 6,800.

The VA touted last year that the Board of Veterans’ Appeals had worked through a record number of cases – about 85,000, up from 52,000 cases the previous year. Davis attributed the surge at the Court of Appeals for Veterans Claims to the board’s increased pace.

He warned appropriators Tuesday that the court might soon need congressional approval for an additional two judges, bringing the total to 11. Of the nine judges now on the court, two – including Davis – are scheduled to retire at the end of their 15-year terms in December 2019.

“We’re watching our numbers carefully to track the very real possibility that nine judges may not be sufficient to keep pace with this growth trend,” Davis said.


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