On August 10, 2018, the Department of Veterans Affairs published a proposed rule to implement the Veterans Appeals Improvement and Modernization Act of 2017 and solicited public comment on the proposed regulatory changes. In response to the proposed rule, Swords to Plowshares submitted the following public comment addressing issues that are central to the work of our Legal Department.
Public Comment, RIN 2900-AQ26 – VA Claims and Appeals Modernization
Swords to Plowshares is a community-based not-for-profit organization that provides needs assessment and case management, employment and training, housing, and legal assistance to more than 2,500 veterans in the San Francisco Bay Area each year. The Legal Department serves homeless and other low-income veterans seeking assistance with disability benefits and Character of Discharge (COD) determinations for VA eligibility. In 2017, the Legal Department provided free legal services to over 720 veteran clients in the initial and appellate stages of their claims.
We make this public comment on behalf of Swords to Plowshares and our Legal Department clients whose lives are greatly affected by the delays plaguing VA appeals and who stand to gain from the successful implementation of the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017) (VAIMA).
Our comment address three key issues. First and foremost, we believe that the final rule must address the central and guiding purpose of appeals reform – timely processing – by including a clear measure of timeliness for all legacy and new appeals. Second, although timely processing is particularly critical for COD decisions and appeals, which resolve eligibility for stabilizing and often life-saving VA benefits and services, confusion often arises about the procedural rights related to them. Therefore, our comment addresses the importance of specifically including COD applications in the final rule’s listing of claims and requests covered by appeals reform. Finally, we comment on the need for clarification and revision in the final rule to ensure that advocates can provide assistance that complies with veterans’ due process right to representation.
1. The final rule must provide clear guidance on the meaning of “timely” appeals processing.
The proposed rule recognizes that the purpose of appeals modernization is to “ensure that claimants receive a timely decision on review where they disagree with a VA claims adjudication.” Proposed Rule, VA Claims and Appeals Modernization, 83 Fed. Reg. 155, 39818 (Aug. 10, 2018). Nothing in the proposed rule, however, defines “timely” or establishes the clear goals for timely processing needed to implement the new system of appeals and address a monumental backlog of legacy appeals.
The lack of a definition or set goals for “timely” processing of appeals – the whole point of the new statutory scheme – is unlawful and prevents meaningful and effective implementation of the new law. VA’s existing plan also shows that VA intends to allocate resources to process appeals in the new system more quickly, leaving legacy appeals to face continued delay.
The final rule should implement the VA’s long-standing timeliness goal of 125 days for all new and legacy appeals at the Regional Office (RO) level, and a 365-day goal for new and legacy appeals before the Board of Veterans Appeals (BVA). At the very least, the final rule must establish some clear timeliness goal for each new appeal lane and each stage of legacy appeals. The final rule should also require docket transparency and wait time estimates for new and legacy appeals at the RO level and in the BVA, and do so for veterans as well as their representatives.
A. The absence of timeliness goals in the implementing regulation is unlawful.
As the centerpiece of appeals reform, Congress mandated “timely” appeals processing for both new system and legacy appeals. In fact, Congress did more than just require “timely” processing; it required the VA to certify that it has sufficient “resources, personnel, office space, procedures, and information technology required” to “timely address” new and legacy appeals, and did so over the VA’s objection. Having considered and rejected the possibility of omitting a “timely” processing mandate, Congress instead made it a central statutory requirement.
In this context, it is a matter of common sense that the VA’s final rule should define what “timely” appeals processing means. It is also required by the Administrative Procedures Act. Agencies must not only address key statutory requirements in their implementing regulations, they must also give definitional content to statutory standards such as “timely” processing. By leaving the meaning of “timely” undefined, the VA’s proposed rule is arbitrary and capricious and fails to comply with the statutory mandate of VAIMA.
B. The absence of timeliness goals prevents effective implementation of VAIMA.
The Government Accountability Office concluded that without timeliness goals, the VA “will not have a way to determine how well the new process is performing.” The GAO also pointed out that the VA’s failure to provide processing goals for each relevant appeals lane “falls short sound planning practices that call for articulating an ‘end state’ or vision for what successful implementation process change would look like.” This conclusion, and the GAO’s recommendation that the VA include timeliness goals for all appeals, is consistent with a long history of courts using time goals to effectively manage caseloads and resources and address case disposition delays. For example, in the federal courts, a 6-month measure is used for completing motions, bench trials, and some administrative appeals.
The final rule must include timeliness goals to inform resource allocation and future funding, assess efficiency, and ensure meaningful and effective implementation of VAIMA.
C. Timeliness goals should give equal or greater priority to resolving legacy appeals.
VA’s current plan to prioritize resources to process appeals in the new system has the backward result of leaving the oldest appeals languishing the longest. See, e.g., Aug 2018 Plan Update at 5 (“VBA intends to allocate its resources to meet the stated processing timeliness goals in the new framework and dedicate the remaining FTE to the reduction of its legacy appeals inventory.”); id. at 51-52 (stating that VA must first gather data about veteran preferences in the new system before providing goals and milestones for reducing legacy appeals).
This approach – where legacy appeal times are dependent on the resources left over from new appeals processing – is contrary to recent federal law governing VA delay. The Federal Circuit Court of Appeals recently rejected a standard that measured VA delay “given the demands and resources of the Secretary,” holding that such a standard improperly “focuses solely on the VA’s interests at the expense of the veterans’ interests.”
Instead, timeliness must “take into account the nature and extent of the interests prejudiced by delay” and consider that delay is “less tolerable when human health and welfare are at stake.” Because claimants with legacy appeals have already endured significant delay – and have significant health and welfare concerns resulting from that delay – timeliness goals and resource allocation must address veterans’ interest in and need for prompt resolution and prioritize the legacy appeals accordingly.
In its plan for processing legacy appeals and implementing appeals modernization, the VA has indicated that it is unable to provide goals for legacy appeals resolution “because the current legacy process has no defined endpoint.” This is not an adequate justification because legacy appeals proceed in stages that do have clearly defined endpoints:
- Initial RO review by a Decision Review Officer (DRO), initiated by a Notice of Disagreement and resulting in a Statement of the Case, 38 C.F.R. §§19.26, 19.29;
- Supplemental DRO review, initiated upon receipt of additional evidence and resulting in a Supplemental Statement of the Case, 38 C.F.R. § 19.37;
- Initial BVA review, initiated by a Form 9 and resulting in a grant, denial, or remand, 38 C.F.R. § 20.202; and
- Remand to the RO for development and rating, initiated by the BVA decision and subject to “expeditious treatment” under 38 U.S.C. § 5109B.
Each of these stages can be given a timeliness goal, just as the pilot program of the VAIMA, the Rapid Appeals Modernization Program (RAMP), provided a concrete 125-day timeliness goal for appeal lanes with and without factual development.
D. The final rule should implement VA’s longstanding 125-day timeliness goal for new and legacy appeals at the RO level and a 365-day goal for new and legacy appeals before the BVA.
VA has recognized the importance of benchmarks for reducing delay in the past and has a longstanding benchmark of 125 days for the timely processing of claims. Furthermore, Congress has referred to delays longer than 125 days as “tantamount to breaking our promise to our nation’s Veterans.” VA clearly has found this benchmark relevant for appeals modernization, as evidenced by its use in RAMP, and it should apply this measure to VAIMA implementation in the final rule.
VA already has identified 365 days as its goal for direct review appeals in the new system and should include this goal for all new appeals in the final rule. Because many legacy appeals have been pending for years already, and certainly all will have been pending longer than appeals in the new system, VA must also apply a 365-day goal to all legacy appeals.
Even if VA declines to adopt 125-day and 365-day goals, it must at least establish clear time goals for all categories of new and legacy appeals to ensure compliance with VAIMA and effective implementation and maintenance of appeals reform.
E. The final rule should implement VAIMA’s timeliness and efficiency requirements by giving veterans and their representatives access to RO and BVA wait times and dockets.
In the proposed rule, VA states that it intends to provide wait time predictions for BVA’s new evidence and hearing dockets. The final rule should contain this transparency and information access requirement for all BVA and RO appeals, including legacy appeals.
This addition to the final rule would reflect current VA practice to some extent. VA has already released an appeals status tracker that allows veterans to view “past and current appeals issues, receive alerts for deadlines when action is required, preview the next events in their timeline, and see estimates of how long it will take to reach those events.” This appears to apply to all pending BVA appeals. A similar tool is needed for RO appeals, particularly if VA declines to establish a fixed time goal for those appeals.
The final rule should also ensure that veterans’ representatives have access to online tools that provide wait time predictions and appeal status. According to recent communications with BVA Customer Service staff, current VA tools for accessing appeals status information are only available to veterans and not to their representatives. But because representatives contribute significantly to the efficient compilation and presentation of evidence, and resolution of appeals, they should be able to easily access appeal status and docket information for the veterans they represent.
2. The final rule needs to include COD applications in the claims and requests to which the modernized review system applies under 38 C.F.R. § 3.2400(a).
Federal law, VA regulations and adjudication procedures, and VA’s commitment to streamline and complete COD decisions as soon as possible all make it clear that appeals reform must explicitly apply to COD applications.
A. Federal law and VA procedures apply appellate and other procedural rights to COD decisions.
Federal law establishes that COD applications are entitled to the same development, due process, and other standard claims procedures as claims filed by claimants whose veteran status VA has recognized. For example, in D’Amico v. West, 209 F.3d 1322 (Fed. Cir. 2000), the Federal Circuit Court of Appeals overruled past decisions that had withheld “benefit from the statutory presumptions and enactments reserved for veterans” until veteran status was established. 209 F.3d at 1327; see also Dennis v. Nicholson, 21 Vet. App. 18, 21 (2007) (applying notice provisions of 38 U.S.C. § 5103 and BVA review requirements of 38 U.S.C. § 7104 to COD decisions).
VA regulations and adjudication procedures also make it clear that due process, including rights of appeal, apply to COD determinations. The M21-1 Adjudication Procedures Manual mandates that for “a character of discharge determination, due process applies before VA determines eligibility for benefits.” M21-1, Part I.2.A.1.b., last updated Jan. 29, 2018. Regulation also makes it clear that due process for VA claimants includes the right to initiate an appeal and notice of that right. 38 C.F.R. § 3.103 (b).
In our practice, however, we regularly encounter the misperception that standard claims processing procedures do not apply to COD applications because a claimant does not technically achieve “veteran” status until the COD application is resolved. This runs counter to clear guidance in the law and sets the stage for confusion about COD status under VAIMA.
A specific provision in the final rule that the modernized review system defined in 38 C.F.R. § 19.2(b) applies to COD applications is needed to ensure that these decisions receive the timely processing they are entitled to under VAIMA, and to carry out the VA’s commitment to timely processing for COD determinations.
B. VA has consistently applied updated procedures to COD decisions to ensure streamlined and timely processing for these critical determinations.
When VA identified needed updates to COD processing procedures in 2016, it stated that claimants with other than honorable discharges “have a significantly increased likelihood of homelessness, involvement with the criminal justice system, and risk for self-harm. These procedural changes recognize these risks and begin VBA’s efforts to streamline and simplify the process for Veterans, particularly combat Veterans, to seek entitlement to all VA benefits permissible by law and the full context of their active duty military service.”
VA thus found that “[p]rocess improvements are required to ensure [COD] decisions for eligible Veterans are provided as soon as possible and to streamline processing from both a VBA and VHA perspective. The goal of streamlining procedures is to both improve timeliness and capacity.” When VA subsequently highlighted the high priority of suicide prevention, it again focused on timely resolution of COD status and related healthcare eligibility as critical to that effort. This concern remains as pressing as ever: the VA’s recent Suicide Data Report shows that suicide rates for younger veterans has increased by more than 10 percent.
Consistent with this work to streamline COD decision making, VA is also undertaking a rule making to update and clarify definitions and policies in 38 C.F.R. §§ 3.12, 17.34, and 17.36, and to address concerns about vague terminology in the regulations – an effort with the potential to further simplify COD decision making and contribute to timely and accurate resolution of COD applications.
Including COD applications in 38 C.F.R. § 3.2400(a) is therefore consistent with prior and ongoing VA efforts to improve COD decision making. It also reflects the particular importance of timely resolution of COD appeals and the clear legal mandate to apply appellate rights and procedures to COD applications.
3. The final rule needs to include additional guidance to ensure that advocates can provide assistance that complies with the due process right to representation.
Every claimant before the VA is entitled to representation. This right, and the right to an informal conference with a higher level review (HLR) adjudicator “are meaningless – an illusion, a mockery – unless [the representative] is given an opportunity to function.” Kent v. United States, 383 U.S. 541, 561 (1966). In closed record proceedings, this means that representatives must have an opportunity to present written argument based on the evidence of record and obtain written notice of a scheduled HLR informal conference.
A. Representatives must be allowed to summarize relevant facts and law in closed record proceedings – in HLR and direct BVA review lanes – to preserve the right of representation.
The proposed form for initiating HLR appeals in the new system does not provide an opportunity to make factual and legal arguments in support of the appeal. Furthermore, these forms are often completed by claimants before they have obtained representation. In BVA appeals, claimants only have 60 days to perfect an appeal, which often will not be enough time to access the claims file, compile relevant evidence, and prepare argument to support the appeal.
To ensure that representation in a closed record proceeding is meaningful, the final rule must include provisions that allow representatives to submit written advocacy about relevant facts and law after an HLR or direct BVA review appeal is initiated and within a reasonable period of time before the appeal will be decided.
Not only is this advocacy necessary to carry out the due process right of representation, it also promotes timely, efficient, and accurate resolution of the appeals without introducing new evidence.
Currently, review of the record for relevant facts, procedural history, and applicable law is extremely cumbersome given the design of the claims file. The claims file does not label contents in a way that allows adjudicators to identify records or proceedings that are relevant to specific claims or issues – notices, submissions, correspondence and other entries in the file often look the same whether they pertain to education benefits, overpayment disputes, or compensation claims. Review for relevant evidence and issues on appeal can therefore involve opening and reviewing a large number of irrelevant document files, estimating where relevant documents are likely to be, or depending on prior summaries of evidence and issues, none of which is conducive to timely, effective, and accurate de novo review.
A representative’s written submission that identifies relevant facts, procedural history, and legal issues, and provides citations to documents in the record that contain this information, helps adjudicators complete review more efficiently and effectively and supports timely review and accurate resolution of appeals.
B. Written notice of a scheduled informal conference is necessary to preserve the right of representation.
The draft form for requesting an informal HLR conference indicates that HLR adjudicators may make “up to two attempts” to call a claimant or representative for an informal conference before resolving the appeal. Though some time frames for calls are offered, there is no way to know whether the call will occur 10 days, 3 weeks, or 6 months into the appeal process. In other words, if representatives miss one unscheduled call that occurs randomly over a period of several months or longer, they could be prevented from informally conferring with the adjudicator as the statute provides.
If representatives do happen to receive the call, they may not be much better off. With typically full caseloads, it will often be difficult for a representative to be well prepared for an impromptu informal conference. Conversely, an adjudicator’s time is not well spent preparing for and attempting calls that are not answered. Due process demands more than this. The final rule needs to provide for informal HLR conferences that are scheduled and noticed in writing ahead of time so that representatives (and unrepresented veterans) can reliably prepare for and attend them.
We are eager to see the success of appeals reform. We believe that a final rule that includes clear time goals for all appeals is necessary to this success. And a final rule that names COD applications in matters covered by reform is not only necessary to reflect the law, but also to combat the serious risks to health and welfare that claimants face while they wait to resolve their veteran status. Because we are committed to providing high quality assistance to veterans pursuing their appeals, we also seek a final rule that protects advocacy in closed record proceedings and informal conferences. This will ensure that veterans have a meaningful right to representation and that representation also assists adjudicators in the timely and accurate resolution of appeals.
We appreciate your careful consideration of these comments and look forward to your response.
 VAIMA, sec. 2 (x)(1)(B)(i)(II)-(III).
 See, e.g., Committee of Veterans’ Affairs U.S. House of Representatives, Legislative Hearing on the Veterans Appeals Improvement and Modernization Act of 2017, Serial No. 115-12 (May 2, 2017) at 15 (David C. Spickler, Acting Vice Chairman, Board of Veterans’ Appeals, U.S. Dep’t of Veterans Affairs, explaining VA concerns about including timeliness provisions in the statute).
 See, e.g., United States Telecomms. Ass’n v. FCC, 400 F.3d. 29, 38 (D.C. Cir. 2005); Pearson v. Shalala, 164 F.3d 650, 661 (D.C. Cir. 1999).
 United States Government Accountability Office, VA Disability Benefits: Some Progress, but Further Steps Needed to Improve Appeals Reform Planning (July 24, 2018) at 7.
 Id. at 7 n.15.
 Civil Justice Reform Act Reports, available at http://www.uscourts.gov/statistics-reports/analysis-reports/civil-justice-reform-act-report. See also American Bar Association, Division for Judicial Services, Lawyers Conference Task Force on Reduction of Litigation Cost and Delay, Defeating Delay: Developing and Implementing a Court Delay Reduction Program (1986); National Center for State Courts, Model Time Standards for State Trial Courts (2011); Federal Judicial Center, Case Management Dashboards (Aug. 31, 2017).
 Martin v. O’Rourke, 891 F.3d 1338, 1344-46 (Fed. Cir. 2018).
 Id. at 1344-45.
 See, e.g., Amicus Curiae Brief of Swords to Plowshares, Connecticut Veterans Legal Center, New York Legal Assistance Group, Veteran Advocacy Project, and Legal Aid Service of Broward County in Support of Petitioners, Monk v. Shulkin, U.S. Court of Appeals for Veterans Claims, Case No. 15-1280 (Feb. 8, 2018) (detailing the harms veterans experience due to delay in the resolution of their benefits appeals).
 U.S. Department of Veterans Affairs, Comprehensive Plan for Processing Legacy Appeals and Implementing the Modernized Appeals System Public Law 115-55, Section 3: May 2018 Update at 43.
 See, e.g., Tom Philpott, Shinseki: Backlog Goal Drew Fire, Also Dollars, in Military.com (July 18, 2013) (Secretary Shenseki set a 125-day benchmark in 2009, a change to the prior benchmark based on average processing time, then approximately 190 days).
 United States Senate, The VA Claims Backlog Working Group: March 2014 Report at 4, available at http://www.veteranslawlibrary.com/files/Commission_Reports/Senate_VA_Claims_Backlog_2014.pdf.
 Proposed Rule, 83 Fed. Reg. 155 at 39832.
 83 Fed. Reg. 155 at 39832.
 U.S. Department of Veterans Affairs, 2016-03-10 Memorandum of Changes, available at https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000045155/2016-03-10-Memorandum-of-Changes.
 U.S. Department of Veterans Affairs, VA Secretary Formalizes Expansion of Emergency Mental Health Care to Former Service Members With Other-Than-Honorable Discharges, June 27, 2017, available at https://www.va.gov/OPA/pressrel/pressrelease.cfm?id=2923.
 See U.S. Dep’t of Veterans Affairs, Office of Mental Health and Suicide Prevention, VA National Suicide Data Report 2005-2016 (Sept. 2018) at 3, 7, available at https://www.mentalhealth.va.gov/docs/data-sheets/OMHSP_National_Suicide_Data_Report_2005-2016_508.pdf.
 See Swords to Plowshares and National Veterans Legal Services Program, Petition To Amend Regulations Restricting Eligibility for VA Benefits Based On Conduct in Service (Dec. 19, 2015), available at https://www.swords-to-plowshares.org/wp-content/uploads/VA-Rulemaking-Petition-to-amend-regulations-interpreting-38-USC-10122.pdf and VA’s May 27, 2016 response to the Petition (on file with Swords and available upon request).
 38 CFR § 3.103(e).
 See new VA Form 20-0996 (providing a space only for listing the issues a claimant wants to appeal).
 See 38 C.F.R. § 20.302.
 Courts recognize that veteran appellants cannot be expected to raise all legal arguments on their own, and have therefore provided opportunities for representatives to do so after initial appellate filings. See, e.g., Black v. West, 11 Vet. App. 15, 16 (1998).
 See new VA Form 20-0996, Instructions.
 The form needs an additional revision for unrepresented claimants who are homeless or at risk of becoming homeless: an opportunity to designate a point of contact who can be reached in lieu of direct contact with the claimant. This designation is available on the initial VA claims form, and needs to be available on forms for initiating appeals as well.