On October 6, 2014, David Hilzenrath, an editor for Project on Government Oversight (POGO), published a lengthy and comprehensive article on a veteran the firm began representing last year. The claim involved a Department of Veterans Affairs (VA) medical malpractice claim under 38 U.S.C. § 1151 that has been pending at different levels of the VA adjudication process since 2006. At the time the article was drafted, entitled One Man’s Nightmarish Journey Through the Troubled VA, Mr. Massong’s claim had just been remanded by the Board of Veterans’ Appeals [hereinafter “Board”].
While there are still some issues that remain pending, a series of decisions from the Reno Regional Office since October 2014 has granted the veteran a 100% (total) disability rating for conditions related to a surgical procedure that occurred at a VA Medical Center in 2005. I’m sure much to Mr. Hilzenrath’s consternation, I was happy to discuss the case and the law . . . but was less than willing to provide a statement concerning how this veteran’s claim represented systemic problems within the VA. This is consistent with my response to other press organizations and also a reflection of the complexity of this veteran’s case. I generally decline to give statements to the press, not because I don’t believe that their are systemic problems within the VA, but unless I have a suggestion for solution my statement offers no benefit other than self-publicity.
To belatedly respond to Mr. Hilzenrath’s request for comment, my humble solution for the widely-acknowledged problems with timeline and processing of VA appeals is this: (1) promulgate a regulatory provision that specifically address requests to expedite due to hardship, age, and/or severe medical illness at the Regional Office level (Agency of Original Jurisdiction); (2) eliminate appellate review at the Regional Office level [appreciating this would require a statutory change]; (3) decentralize components of the Board of Veterans Appeals (BVA) and have standing Veteran Law Judges (VLJs) co-located at the various Regional Offices that handle direct appeals to the BVA from initial rating decisions [understanding this will require additional staffing at the BVA, but eliminate travel/per diem costs with infrastructure costs already in place]; (4) to the extent the Agency feels it necessary to permit “appeal” to the Regional Office, promulgate a statutory provision that codifies the now-present ad hoc “request for reconsideration” as a discretionary form of review; (5) codify a general timeline for appeals/”reconsideration” processing with contact to the VA Office of Case Management if it exceeds that period of time.
I appreciate that Title 38 was created (and modified in 1962) to provide robust, multi-tiered level of appellate review. This approach, however, is becoming a hindrance rather than benefit to both veterans and the VA. At the macro-level (i.e. not my client) it has helped create issues with agency legitimacy (how veterans perceive the Department of Veterans Affairs) and I suspect organizational psychology (how VA employees perceive their workplace environment). I realize my suggested solution is a radical departure from the existing appeals process and will create its own logistical issues; however, with the military downsizing after fifteen years of active-combat operations and a generation of Vietnam veterans reaching the age of 65 and over, these issues will become more acute if not addressed now.