BVA Declares War on Most Severe Veterans
A huge problem that plagues the VA is lack of consistency. One place Veterans can (usually) get a fair shake is at the Board of Veterans’ Appeals. The Board is the highest appellate authority within the VA and renders a final decision on claims on behalf of the Secretary of the VA himself. Board appeals are decided by a Veterans’ Law Judge who generally is much more knowledgeable than regular VA raters. Notice the note “generally”. The problem? Wait times at the Board usually span multiple years. To fix this, Congress added in the option to get moved to the front of the line, if you are in true need of a faster decision. Today, I discuss the Board’s recent declaration of war on our Nation’s most severely disabled Veterans.
Congress realized that many Veterans come to the Board in desperation. Realizing that even a day’s delay for some Veterans’ could be dire, Congress codified 38 U.S. Code § 7107(b). “A case on one of the dockets of the Board maintained under subsection (a) may, for cause shown, be advanced on motion for earlier consideration and determination.” Congress goes on to say that advancement may be granted “if the appellant is seriously ill or is under severe financial hardship”, or “for other sufficient cause shown”. Simple enough. Right? All you have to do is submit your evidence and the Board will review it. Assuming you provided evidence, your Motion should be granted, and your case should be pushed to the front of the line. Well. That is, until the Board declared war on “advancement”.
Our conversation can begin with the case of Hailey v. McDonough (CAVC Docket No. 22-3061). Mr. Hailey filed a Motion to have his appeal advanced by the Board. Mr. Hailey’s Motion was denied by the Board with no discussion on why. What criteria did he not meet? What was his missing? Mr. Hailey filed an appeal of this decision to the Veteran’s Court. The VA promptly moved to dismiss the case, arguing Mr. Hailey had no right to appeal this decision since it was not a “final Board decision” granting or denying his underlying appeal.
Mr. Hailey, in turn, argued that Congress, by statute, gave him the benefit of advancement when he met the criteria, and that he had been denied that benefit without just cause. Mr. Hailey ultimately was successful in conveying a 3-Judge panel to address this serious issue. In true VA fashion, the Board issued a decision in his underlying appeal before the Court could reach the question on whether or not a Veteran may appeal the denial of advancement. Coincidence? I was born at night, but not last night.
So, we move on to where I first began noticing the war. I had been representing a poor Veteran on her death bed. She had just gotten a 100% COPD rating, but we were going after several other things, including Special Monthly Compensation. So, I filed a Board appeal for her. She had been hospitalized around 6 times within the past year. Each time at least a week’s trip. I pointed all that out and told the Board surly she meets the criteria of being “seriously ill”. I guess I was naive. The Board promptly denied advancing her access. I raised a little hell in the form of e-mails to various VA leadership, and thankfully they corrected their error. At the time, I was willing to mark it off as a legitimate oversight. Or, so I thought.
Then we move to the case of Mr. Heller. Heller v. McDonough (CAVC Docket No. 24-3054). Mr. Heller filed numerous Motions with the Board pointing out his severe financial situation, and severe suicidal ideations. At one point, he had, sadly, engaged in some self harm. Each time, he got a generic letter from the Board that he just didn’t met the criteria for advancement. Maybe he forgot to send pictures of the scars on his wrists? Mr. Heller filed a Petition for a Writ of Mandamus with the Veteran’s Court, asking the Court order the Board to either grant advancement of his appeal, or order the Board to decide his appeal.
This past Thursday, the Court said enough was enough, and sided with Mr. Heller. The Court ordered the Board to decide his appeal within 30 days. It is worth mentioning the Court went into a lengthy discussion of his numerous attempts to resolve this with the Board. In some respects, I believe the Court was disgusted with what hat occurred. Just my opinion, though.
My experience with the war doesn’t end there. A day after the VA got slapped in Mr. Heller’s case, I received this letter.
“In your case, the evidence indicates that you do not meet the requisite 75 year age requirement. There is also insufficient supporting medical evidence to demonstrate that you have an illness so serious or grave in nature that advancement is warranted. Neither is there evidence that demonstrates severe financial hardship such as home foreclosure or homelessness. General financial difficulties alone are insufficient. Finally, there is no evidence of administrative error resulting in a significant delay or misinterpretation of a question of law.
The Board acknowledges the arguments made by counsel and Dr. [redacted] statement that the Veteran is seriously ill. “Seriously ill” is not defined in the regulations. A significant number of Veterans have 100% ratings and/or conditions that clinicians would consider “serious.” In the absence of mandatory language (“Appeals . . . may be advanced” vs “Appeals . . . must be advanced”) and a regulatory definition of “serious illness,” the Board concludes that the law intends the exercise of some measure of discretion in adjudicating motions to advance. The Board’s review of motions to advance takes into account that for advancement to be meaningful, not all Veterans who have 100% ratings or a condition that would be “serious” to a clinician (without a definition upon which to base the opinion) can be advanced.”
Well, Deputy Chairman Santoro, let me first point out that this Veteran isn’t just “100%”. She has two, yes, two, 100% ratings, a 60% rating, a 40% rating…the list goes on…In addition to her ratings, the Board had a letter from a doctor saying “oh yeah, she is seriously ill, here’s why”. Instead, the Board put its stethoscope on and decided to makes it’s own medical determinations.
Whether or not a Veteran is seriously ill is a medical determination. Here, the Board received a competent medical determination that the Veteran is indeed seriously ill. The doctor we used provided a meaningful discussion which was based on the medical evidence particular to this Veteran. The Board’s rejection of this competent medical opinion, and instead injecting its own medical opinion, which is a clear Colvin violation. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (holding that the Board cannot rely on its own medical judgment).
I ask the Board, if the Board intends to rewrite the regulatory requirements for advancement, then it should do so in the light of day, and in accordance with law. But to say that this Veteran, with two separate 100% ratings, a 60% rating for urinary incontinence, a 40% rating for paralysis...the list goes on...is not seriously ill is nothing but clear error. Especially considering the competent doctor’s statement declaring as much.
I take great concern with the Board’s characterization that it has discretion to advance appeals when the criteria is met. Does the Board take the position that a 75-year-old Veteran may be denied the benefit of advancement since advancement is “discretionary”? Where does the Board’s discretion end and instead change to an arbitrary abuse?
I often find the hills the VA chooses to die on very interesting. Why in the world would this be one they choose? To say this Veteran is not “seriously ill” is downright dishonest and disgusting. I have already fired off some e-mails to rectify this situation.
So, the war continues. Until it is won, you will find me, fighting the good fight, still on a mission.
Godspeed.