Life in the Fast Lane
The Board has been cranking out decisions like a pasta machine on steroids. Sounds nice enough? The problem? They forgot to mix the dough first, forgot the eggs, and neglected to reference the cook book first. What they’ve thrown in the oven is a mixed bag of decisions. Now don’t get me wrong, there have been some good decisions, but two I got this week were like half-baked lasagna. Burnt and crispy on the outside, cold and wet in the middle. I guess they are worried about their annual report to Congress this year. Maybe Elon has been hanging out at Central Office? Help! Someone send the Coast Guard, because soon the CAVC will be drowning in appeals.
As you may know, I was recently in Minneapolis and got the chance to hear from Chief Judge Allen on what was going on at the Court. As Chief Judge Allen put it, the CAVC hears more appeals than nearly any other federal Court. In 2023, the Court received over 7,500 appeals, and disposed of just as many cases. Of those, how they are disposed of has remained largely the same. Some cases ended up going to a Judge, others are settled through a Joint Motion for Remand. As Chief Judge Allen said, if any of those numbers change, the apple cart runs the risk of being upset. Yet, the Court continues to grow and will set a record this year for the most number of appeals filed. Well, what I have seen recently will indeed upset the apple cart.
I’m all for the Board speeding up its ability to make decisions. But, throwing out half-baked decisions versus quality decisions simply strains the system worse and worse. Imagine how many appeals are generated as a result of a bad decision? Sure, VA can go to Congress and say “see, we have less appeals pending than ever before”. The problem? Those decisions get appealed and sent right back to the Board. That’s not by my imagination, but the numbers tell us that. In 2024, the Court received 7,862 appeals. The Court affirmed the underlying decision in only 375 of those appeals. Sure, the Board is cranking out decisions lately—but for what? To have those decisions appealed and sent right back from where they came.
The Board often cries that as advocates, we are just too damn tricky. We submit evidence at the last minute, come up with a brand new argument at the Court, or get the case sent back on a technicality. As we have been told before, the Court often remands but nothing beneficial ends up happening for the Veteran. Quite frankly, if that is the case, all this could be prevented by the following: Do your job the first time. That is just a BVA talking line, though. The truth is, all of the Court appeals I have secured have all resulted in the award of benefits at the end of the day. In other words, the Board was wrong from the get go.
When they aren’t outright denying, the Board is remanding the first chance it sees. The problem there? When Congress crafted up the AMA, the purpose was to put an end to the hamster wheel reputation VA appeals had. I have always thought the hamster wheel example wasn’t justice. Really, the Legacy system was more like an escalator, and when you got to the top, the Board would send you back down. When you got to the bottom, the regional office would send you back up. Wash. Rinse. Repeat. So, Congress said what a minute. From now on, if there is enough evidence in the file to light the cigar and give a full grant—do it. Instead of reviewing the whole file now, the Board looks just long enough until they see a way to send it back, back down the escalator. The regional office gets it wrong again, ignores the evidence in the file that could have granted the whole thing, and back up the escalator you go. Again, had the Board reviewed the file to begin with, so many resources could have been saved.
It’s okay. I get it, I know the VA Easter Bunny won’t visit me this year. Maybe next time? Which brings us to my final punch line. A lot of things could be prevented if the VA would simply communicate. I can’t tell you the number of appeals that could have been prevented by the VA picking up the phone and saying “we intend to do this, what do you say?” Well, that is fine and dandy, but I noticed you totally glossed over those VAMC records saying x, or, it sounds like you missed Johnnie’s statement on y. But, the VA can’t be bothered with that. They have better things to do, like making sure you actually get mailed a copy of their denial. Oh yeah, that’s a thing. So don’t let the VA call you crazy if you never got a copy of something they claim they mailed you.
But that’s a story for next time. I better go see if the lasagna is done.
Happy Easter.
Godspeed.