Board Decides Appeals Out of Order; I Brought Receipts
This is how I image it went down. Picture it like this. Doug Collins is in his big new office on Vermont Avenue. Way up in the Ivory Tower. He’s cleaning out Denis’s old desk. A few paperclips left behind, an old sticky note. Maybe even an old family photo—a note about some final project McDonough was working on before his tenure ended when ole’ Joe’s did. Doug takes a look around and shakes his head in disapproval. This place hasn’t been serving Veterans. “PowerPoints and committees,” he says as he wads up that sticky note, tossing it into the trash, “that’s all they’ve been doing here,” he gripes. “We’re about to change that.” He picks up the phone and says “get me someone at the Board. Anyone, now!”
Regular Order
By law, the Board must decide appeals in “regular docket order.” Simple enough. No line skipping, no picking favorites, just regular order, like you’re waiting for your number at the DMV. Easy enough, right? Well, sometimes, we let people skip ahead, Veterans 75 and older, homeless, those with cancer. No one can argue with that, so we’ll shoot them to the front of the line while you’re still there, patiently waiting. But for the regular folk, no skipping. You must wait your turn. What that means in practice is there is no way on Earth another Veteran in regular order who filed an appeal in 2024 would have his appeal decided before your appeal, which you filed in 2022. Pretty easy to see that’s line-jumping, and that is against the law. Right?
Irregular Order
This isn’t the first time this has came up. Back in 2022, a Veteran by the name of Justin Gray got wise. Maybe he was hearing from his buddies that they got their decision and only filed a year ago. What the hell? I have been waiting since 2020. So, Mr. Gray gets with a well known VA firm and files suit. After much back and forth, the Board finally threw its hands up and said “our bad.” We actually have been disregarding the law through our One Touch program.
"The “One Touch” program that was rolled out in April (2018) to expedite the processing of legacy hearing cases with clear dispositions is ongoing at the Board. Under that program, when a Veterans Law Judge holds a hearing on a case that is within the Board’s current docket range and the outcome of the appeal is immediately clear, the judge can activate the case and have it transferred directly to him or her. The program enables Veterans Law Judges to touch a case once and more efficiently get a decision to the waiting Veteran."
Copy of Report Discussing One Touch
Well hot dog! If you are a Veteran and had a hearing, and the Judge goes well this is an obvious ____ up by the VA, I can just “One Touch” this bad boy and have you a decision this week. Now that sounds pretty good. Although, it isn’t that good for Mr. Gray, who has still been waiting in line. You see, even a “One Touch” takes time. The Judge still has to write out the decision, articulate what the screw up is and how the VA is ‘gonna fix it. That takes time. Time that could have been spent deciding Mr. Gray’s appeal, who has been waiting his turn patiently.
Eventually, Mr. Gray got the Court to order the VA to file some responses about just what the heck was going on, and whether Mr. Gray would ever get a decision? Eventually we found out the Board had decided 6,267 appeals ahead of Mr. Gray.
In true government fashion, the Board was quick to tell the Court pay no attention to the man behind the curtain. “As the Board’s systems do not track the reasons for distribution in a way that can automatically be searched…to the extent it is even possible, the Board does not have the resources required to determine the reason…If ordered to do so, the Board would have to divert personnel away from adjudicating appeals.” Smoke and mirrors. So, we have over 6,000 appeals decided ahead of yours, which shouldn’t have occurred, but we can’t explain why, and oh dear Court if you make us try to explain why, it will take precious resources away from us screwing helping Veterans! Nothing to see here. Finally, someone at the Board had a brilliant idea. Why don’t we just decide Mr. Gray’s appeal—it’ll make all this go away? You bet your bottom dollar that joker got a promotion after coming up with that idea.
So, on March 1, 2023, the Board decided Mr. Gray’s appeal—likely out of docket order—and made the whole thing…just…go away. Although, the Board did do away with the One Touch program (wonder who came up with the name?). So, the Board manages to keep their PRC 25 dry for another day. Back to business as usual—your transmission is coming through good.
Back on the Phone
Back to Secretary Collins’ first day. He picks up the phone and calls the Board. What have you guys been doing? You need to reduce this backlog! Decide some cases! “Well sir, we have this thing called docket order. We already got caught red handed once.” “Just get it done!”
Now days, the Board has three types of appeals. They have direct docket appeals “Judge, just consider what the VA already has and make a decision. Nothing new to give you.” Then they have evidence docket appeals, “Judge here is a statement from me, my 1st SGT, and a beautiful nexus letter from my orthopedist. Make a decision, please.” Finally, the hearing docket, “Judge, I wanted to see you, face-to-face, to give you the skinny, and I will submit some updated medical records after today’s hearing.”
So, I will give the Board a little bit of credit, they are managing what is a complex order of appeals. Some have no new evidence, some have just evidence, and some have a hearing and new evidence. Regardless though, regular docket order would mean appeals filed in 2022 get decided with appeals in 2022, and no Veteran who filed an appeal in 2023 gets a decision before someone who filed in 2022, regardless of the docket. That is just how waiting in line works. Well, last summer, the Board started picking off some low-hanging fruit. It was like someone opened the flood gates for the direct docket—only the direct docket. You see, since the Board had less records to review (no new evidence, no hearing), it made for an easy day, an easy reduction of the backlog. Let’s take that a step further—let’s forget about the direct docket appeals we got in 2020, 2021, or 2022. Let’s decide some filed very recently. That way, it will help pad our numbers, reduce our “average days pending” metric. A 2 for 2. Alright, sounds good enough. We spit out a bunch of those decisions, not too shabby. “Can you do the same thing with the evidence docket?” Sure can!
By this time, I was starting to get suspicious. I had all these direct docket appeals being decided ahead of Veterans I represent with evidence dockets from 2022. Something is fishy. I began to investigate. I know what I’ll do, I will do a FOIA request for: Data outlining the quantity and individual docket numbers of non-Advance on Docket (AOD) and non-Court of Appeals for Veterans Claims (CAVC) Appeals Modernization Act decision that have been dispatched within the last 12 months for docket numbers from 2021, 2022, 2023, and 2024.
While I’m waiting for the Board to respond, another tidal wave. This time, evidence docket from 2023. Gosh, that is good for those Veterans, but what about the poor folks that have been waiting since 2020? 2021? They are just getting skipped over. The hearing docket? Crickets. Not a single decision. Why? Those take the most amount of time. You have to schedule the Veteran for a hearing, then they get to submit new evidence. You have to review all that. It just takes—time. So, it is much easier to just get the low hanging fruit (direct docket, evidence docket) and let the hearing docket sit in languish.
Another Class Action
I finally got the VA to respond to my FOIA. They produced over 1,300 pages of cold-hard-proof. Cold-hard-proof they are moving in whatever docket order they please. Don’t believe me? Check it out for yourself.
Scroll down to the bottom. The Board’s docket number is pretty easy. yymmdd-unique number. So, 240516-unique number means that appeal was filed on May 16, 2024, and the last part of the docket number identifies the individual appeal/Veteran. So, you have to ask yourself, how could docket number 240516-442829, a direct review docket, have been decided in March 2025, when your appeal has been pending before that?
Better yet, how could docket number 240517-441388, a hearing docket, those that take the most time, be decided in February 2025? Again, your 2020 hearing docket it still sitting in languish. Doesn’t it make your blood boil? Well, it did mine. It stinks to high heaven. No end in sight, either, as I represent Veterans who are still just sitting in line, being passed over time-after-time by the Board.
Well, enough was enough for me. Time to file another request for class certification.
Request for Class Certification and Class Action
If you are a Veteran with a pending appeal, go on in there and take a gander at the data. If you have a pending docket number that begins with 20, 21, 22, and still have an appeal pending—you’ve been screwed. Tossed to the side. Passed over. Your case isn’t good enough to decide. We have to make our numbers look good, instead. Maybe you even take a copy of this FOIA and file a Motion to Advance at the Board?
I sure hope the Court puts some attention on this. A little bit of sunshine before spring officially begins.
I was really happy to see the Veteran community come together over this Ingram business. It was maximum public pressure—and it worked—the VA folded up the card table and moved along. Let’s do the same thing here.
‘Till next time.
Godspeed.
