90 BVA judges decide cases, with an “inventory” of over 425,000 cases pending

When the VA misrepresents performance, veterans suffer

The Hill
BY DANIEL E. HO AND DAVID MARCUS, OPINION CONTRIBUTORS
03/05/19

Veterans suffer from this misrepresentation. The volume of veterans’ appeals is huge. The vast majority are related to disability compensation claims. Some 90 BVA judges decide cases, with an “inventory” of over 425,000 cases pending. A veteran must wait seven years for the BVA to decide his or her case. If the decision is incorrect, the veteran must hire a lawyer, appeal yet again, and spend years to get the error fixed. Veterans are caught in this “churn” of appeals, creating extreme cynicism among some veterans groups. In one veteran’s assessment, VA’s error-prone case handling consists of “delay, deny, hope they die.”

Administrative judges appear to be performing better than ever, in spite of huge increases in performance quotas. The Trump Justice Department implemented an annual “production quota” of 700 cases for immigration judges. The Social Security Administration requested its disability judges to increase their output by almost 20 percent over the past few years. And the Board of Veterans’ Appeals (BVA) increased its output by a whopping 62 percent in one year, deciding 52,661 cases in 2017 and 85,288 cases in 2018.

The Constitution demands that agencies decide cases accurately. And in spite of the production increase, the BVA reported an “accuracy rate” of 94 percent for 2018. According to this reported rate, only 6 percent of BVA decisions contain legal mistakes. If true, these statistics would mean that agencies deciding hundreds of thousands of cases each year — more than all federal courts combined — can provide high quality justice for immigrants, veterans and the disabled at unprecedented rates.

Has the BVA finally cracked the constitutional code of mass adjudication? Nothing could be further from the truth. Our research teams at Stanford and UCLA unearthed data on nearly 600,000 cases never before studied by outside researchers, as well as hundreds of pages of agency documents. Drawing on this information and in-depth interviews with agency officials, our research shows that the BVA is seriously misrepresenting its performance.

A typical case for veterans benefits involves thousands of pages of exhibits and numerous complicated legal issues. A veterans law judge must decide 25-30 of these cases each week. Commenting on the impact of rushed decision-making on the quality of his work, one veterans law judge confided that he found himself forced to sign decisions he never would have signed in earlier years: “I could have integrity here or I could stay employed.”
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