Numbers are important. When you dealing with subjective adjectives like “reasonable,” they are very important. About two years ago, I was listening to a Federal Circuit oral argument, when a newly appointed judge asked counsel how many expert medical opinions are provided by VA. The new judge speculated that it “must be thousands.” In fact, he was off by three orders of magnitude. The number is actually over one million, but neither of the attorneys was able to provide the correct information. Fortunately, that case did not result in a precedential decision as I recall, but for those of us who practice veterans law, these kinds of oral arguments are scary. It is problematic that good information on the system is not readily available to the courts, to appellate advocates, or those considering serious academic study of the field. Regardless of the types of policies you support, good policy should be based upon an accurate understanding of the realities of the system.
How
many claims for benefits does VA handle each year? That is actually not an easy question to
answer because VA uses an outdated definition of “claim” that really reports
only the number of applications for benefits.
In recent years, VA has been receiving more than one million “claims” a
year. However, most applications claim
more than one different disability or are “supplemented” later by requests for
consideration of additional disabilities.
In other words, most claims combine multiple causes of action that may
have no factual relationship. World
War II veterans tended to assert one or two medical conditions per claim but,
more recently, Vietnam veterans averaged three to four, and Iraq and Afghanistan
veterans averaged 8.5 issues per claim in fiscal year 2011. So if you are looking at the number of
different causes of action filed, it is somewhere in the neighborhood of three
to four million different claims per year right now.
[A]fter the passage of the VJRA, VA grants a higher percentage of veterans claims. In the decade prior to the VJRA, VA denied approximately half of the 800,000 benefits claims received each year. Of those 400,000 annual denials, veterans contested an average of 60,000 such denials. The BVA heard 36,000 appeals of these denials, granting 12% and remanding 13% for further proceedings. Twenty-two years after the passage of the VJRA, the numbers—to the extent they are comparable—are substantially different. The number of annual “claims” is now near 840,000. Moreover, VA grants roughly 88% of claims for disability compensation as to at least one disabling condition. During fiscal year 2007, the BVA granted 21% of the claims appealed to it and remanded over 35%.
Second, in addition to the increased approval rates, the amount of compensation awarded has also risen. VA can rate a veteran’s disabilities anywhere between non-compensable to 100% compensable, in 10% increments. “In fiscal year 1987, [VA] paid about $14.3 billion [$26.8 billion in 2008 dollars102] in disability benefits to 3.8 million veterans.” That is an average of $7,060 per recipient in 2008 dollars. In fiscal year 2008, VA paid approximately $38 billion to 3.4 million veterans. That is an average of $11,200 per recipient: an increase of 59%. Accordingly, twenty-two years after the passage of the VJRA, a veteran applying for benefits has a substantially higher chance of at least partial success and is also likely to receive substantially more compensation.
Since 2008, the number of “claims” being filed has increased from 800,000 to 1.3 million, and the Board is reversing and vacating an even higher percentage of regional office denials.
Despite the massive number of claims in the system, the number of attorneys certified to practice veterans law at the agency level is in the thousands, and the number that actually practice at the court level is only in the hundreds. Of those, I would venture that only a few hundred actually practice full time in the area. Although this has been a terrible time economic time for young lawyers in general, veterans law is one area that has tremendous opportunities. For example, while the rest of government is furloughing folks left and right, the Board of Veterans’ Appeals is in the middle of hiring 100 new attorneys by the end of this fiscal year to address its rising inventory of cases. I have also heard many anecdotes of firms looking to create a veterans law practice, either for profit or simply pro bono, and law school clinical opportunities for students are expanding as well.
The best way to obtain current data on the system are in VA’s budget and performance reports and the Board of Veterans’ Appeals annual reports to Congress. If you want to get a sense of what the veterans service organizations are thinking, look at the Independent Budget, an extremely detailed alternative budget for VA that a consortium of those groups produces each year as a counterpoint to the White House proposal. However, that is not to say that all of the information you want is easy available or even exists at all. I have collected many of these resources and others at the Veterans Law Library website.
Next week, I will start looking at some specific issues the system faces. Certainly, there are many different ways to approach some of the challenges confronting VA. However, the one unavoidable issue is how well do different approaches scale up? Lots of options might be tried for hundreds or even thousands of claims, but can they work for a million or more?
Comments