Stanford Study shows BVA’s accuracy claims are misleading

A recent paper published by the Stanford Institute for Economic Policy Research confirms what veteran’s advocates have long known to be true – BVA’s claimed 90-95% accuracy rates are, at best, misleading. 

In this study, researchers looked at data on nearly 600,000 BVA appeals over a 15 year period to determine whether BVA’s quality review process reduced appeals or reversals.  BVA randomly selected 5 percent of original appeals and 10 percent of appeals remanded from the Court of Appeals for Veterans Claims (CAVC) for review. Draft decisions were reviewed so that errors could be corrected before the decisions were released. They analysis found “the program had no appreciable effect on reducing appeals or reversals.  Based on internal records, we demonstrate that this inefficacy is likely by design, as meeting the performance measure of ‘accuracy’ was at cross purposes with error correction.” 

In 2018, 4,842 BVA decisions were appealed to CAVC.  Only 382 (7%) of these BVA decisions were affirmed. 80 percent were remanded in whole or in part.  In the same year, BVA claimed to have maintained a 93.5% accuracy rate.  If the definition of ‘accuracy’ is to be immune to reversal or remand, then clearly these numbers don’t add up.   The Stanford Study pointed out that BVA’s standard of review is not consistent with CAVC’s, citing internal BVA documents which show that quality review errors are only called when they are considered undebatable. The result is that there is no statistically significant difference in the rate of remands and reversals for a case that has been through the quality review process and a case that has not.

In addition to concluding that BVA’s quality review process seems to be a waste of time and resources, this study reveals that the accuracy numbers reported by BVA are a misrepresentation. BVA is not calling quality review errors for the failure to adequately explain decisions, despite the fact that this type of error represents 62 percent of the remands from CAVC. Quoting from the Stanford study:

“The VA’s own Office of General Counsel (OGC) has sharply questioned the BVAs reported accuracy rate of 94 percent. OGC noted that in 2009, CAVC alone had reversed or remanded a higher absolute number of cases than would be mechanically possible under a mere 6 percent error rate. Vice Chairman Keller responded by stating that CAVC reversal or remand did not necessarily mean that the BVA decisions contained error. Keller argued that a remand for failure to provide an adequate explanation - textbook administrative law - should not be counted as error because the standard is ‘highly subjective and inconsistently applied.’”

BVA’s accuracy rate is is an important performance metric, which is reported to congress to support budget requests. By manipulating the standard of review to produce a 90-plus percent accuracy rate, BVA creates the illusion of effective and efficient workload management and renders their claimed accuracy rates meaningless.

Changes to Rating Schedule for Chronic Fatigue Sydrome

VA has finalized regulations which change the Rating Schedule relating to Infectious Diseases, Immune Disorders and Nutritional Deficiencies. This schedule includes the rating criteria for Chronic Fatigue Syndrome (CFS).

VA proposed major changes to these diagnostic criteria, to include adding a list of diagnoses (current or past) that would exclude the diagnosis of Chronic Fatigue Syndrome (CFS), including sleep apnea, hypothyroidism, narcolepsy, certain cancers, hepatitis B or C, depression, bipolar disorder, schizophrenia, dementias, and severe obesity (BMI 45 or greater). Fortunately, veterans advocates responded to these proposed regulations, pointing out that VA’s proposals were not in line with current research on CFS. VA chose not to make the majority of the proposed changes, instead opting to convene a working group to discuss changes that will “ensure that the full range of relevant factors is adequately addressed.” The only change that will take effect is the addition of a requirement that a licensed physician prescribe bed rest and treatment to meet the definition of an incapacitating episode. This requirement will be effective August 11, 2019. The rating criteria as of that date will be as follows:

§ 4.88a Chronic fatigue syndrome.

(a) For VA purposes, the diagnosis of chronic fatigue syndrome requires:

(1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and

(2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and

(3) six or more of the following:

(i) acute onset of the condition,

(ii) low grade fever,

(iii) nonexudative pharyngitis,

(iv) palpable or tender cervical or axillary lymph nodes,

(v) generalized muscle aches or weakness,

(vi) fatigue lasting 24 hours or longer after exercise,

(vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state),

(viii) migratory joint pains,

(ix) neuropsychologic symptoms,

(x) sleep disturbance.

6354 Chronic fatigue syndrome (CFS):

Debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms: Which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care ................…......100

Which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year .........................................……………………………………………………………………………………………………………... 60

Which are nearly constant and restrict routine daily activities from 50 to 75 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year ...........……………………………………………………………………………………………………………….. 40

Which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year .......………………………………………………………………………………………………………...... 20

Which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication …………................................... 10

Note: For the purpose of evaluating this disability, incapacitation exists only when a licensed physician prescribes bed rest and treatment.

Why Don't My Service Connected Evaluations Add Up?

When VA grants a claim for service connection, each service-connected disability is assigned a percentage according to VA’s rating schedule. If a veteran is service-connected for multiple disabilities, the combined evaluation determines that rate at which the veteran is paid. Many veterans are surprised that the combined evaluation is not always equal to the sum of the individual evaluations. This is because VA uses the combined ratings table. The premise behind the combined ratings table is that a veteran cannot be more than 100 percent disabled, therefore each additional disability is detracting from the remaining ability rather than simply adding to the disability.

For example, a veteran who is 60 percent disabled is 40 percent not disabled. If that veteran is awarded another 10 percent disability evaluation, then VA will take 10 percent of the remaining 40 percent and consider the veteran 64 percent disabled and 34 percent not disabled. This 64 percent would be rounded down and the veteran would be paid at the 60 percent rate. If a veteran were 60 percent disabled and received an additional 20 percent disability evaluation, VA would consider the veteran 68 percent disabled and 32 percent not disabled. This evaluation would be rounded up to 70 percent. So according to VA math, 60 percent plus 10 percent is 60 percent, while 60 percent plus 20 percent is 70 percent.

The higher the evaluation, the more it takes to get to the next level. For example, if a veteran is service connected at 90 percent, it would take five additional 10 percent disabilities to reach 95 percent disabled, which would round up to a 100 percent evaluation.

Do I Qualify for VA Benefits?

There are a number of benefit programs administered by  the Department of Veterans Affairs, but the most well known is the program that pays veterans for disabilities incurred in service.  This benefit is commonly referred to as service connected compensation. In order to prove entitlement to this benefit, a veteran must demonstrate:

1) an in-service event, injury or exposure;

2) a current disability; and

3) a link between the in-service event and the current disability.  

To apply for service connection for the first time one must complete VA Form 21-526 and submit it to VA.  VA will obtain your service treatment records and ask you to identify current medical records.  If there is evidence of the claimed condition in your service treatment records and evidence of a current disability, VA will schedule an examination to obtain a medical opinion as to whether the in-service event or injury is related to the current disability.  The outcome of this examination will likely determine the outcome of the claim. A veteran may seek his or her own medical opinion to prove that a link exists between service and the current disability. This medical opinion must be worded in a specific way or VA will disregard it. VA will almost invariably decide the claim based on the results of the VA examination.

If you disagree with the outcome of your claim you have one year to file an appeal or a request for reconsideration.  If you fail to appeal or request reconsideration within one year you may still reopen your claim at a later date, but you will need to present new and relevant evidence (evidence relevant to some unproven aspect of your claim) in order to do so.

VA Rolls out New Appeals Process

Effective February 19, 2019, all new appeals filed with VA will be processed under the modernized appeals system. Enacted in August, 2017, the Appeals Modernization Act provides three appellate options: supplemental claim, higher-level review, or appeal to the Board of Veterans Appeals. Currently, veterans wait an average of five years from the date an appeal is filed for a decision from the Board of Veterans Appeals. VA aims to significantly reduce this wait time by providing decisions on supplemental claims and higher level reviews within an average of 125 days, and decisions from the Board of Veterans Appeals in a year.

Over the past year VA has encouraged participation in their pilot program called the Rapid Appeals Modernization Program (RAMP). Veterans advocates have observed that the results of the RAMP program have been mixed, and although many remain hopeful their optimism has been tempered by the results observed to date. Empirically speaking, the RAMP program was successful in reducing wait times. However, advocates have anecdotally reported an increase in decisions in which the agency has failed to review and consider the evidence of record and soundly apply the law. Accordingly, the jury is out with regard to whether the AMA will bring real relief to the flawed veterans benefits system, or amount to yet another broken promise.

Are you a veteran for purposes of VA benefits?

Are you a veteran for purposes of VA benefits?

To the U.S. Department of Veterans Affairs, the word veteran has a very specific meaning. The U.S. government defines the word veteran at 38 U.S.C. § 101(2). This provision states that the term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” This definition seems to be straightforward on its face. However, as with anything involving lawyers or bureaucracy, it is not as simple as it seems.

How does the VA Regional Office process a claim for VA benefits?

Complete VA Form 21-526, and submit it to the VA regional office in your state. Follow this link to find the regional office in your state. 

VA will respond with a letter acknowledging receipt of the claim, and advising you of what information or evidence is still needed. The VA has a duty to assist you in obtaining any evidence identified by you.

Once the VA has received all of the information identified, or at the expiration of a certain period of time if the veteran has failed to respond, your claim will be reviewed by a rating specialist. The rating specialist reviews the medical records and any other evidence submitted and decides whether to grant or deny benefits, and at what percentage, or level, of compensation.

This article is authored through the collaborative efforts of Shana Dunn and other legal professionals at West & Dunn, a law firm dedicated to providing high quality legal services to individuals and businesses, with a particular focus on assisting veterans of the United States Armed Forces. If you have questions or would like assistance with your VA claim, the attorneys at West & Dunn can be reached at 608-535-6420.

How Do I Obtain VA Disability Benefits?

The US Department of Veterans Affairs will compensate veterans on a monthly basis for any disability that was sustained during military service. To apply for benefits, you must complete VA Form 21-526, and submit it to the regional office in their state: Link to form

In order for service connection (the VA calls disabilities that were caused by military service “service connected” disabilities) to be granted, the veteran must show the following:

  1. an injury in service

  2. a current disability

  3. and a link between the current disability and military service.

There are some exceptions to this rule. For example, some conditions are presumed service connected without additional evidence of a link between them. Veterans who served in-country in Vietnam and have certain diseases such as diabetes are granted service connection on a presumptive basis.

Mental health claims, such as those for post traumatic stress disorder (“PTSD”) require even more evidence to support them. To prove a claim for PTSD you must have, in addition to the above three elements, prove that you were exposed to a stressful event (the VA calls this a “stressor”).  See the PTSD section under specific disabilities/special issues tab for more information.

This article is authored through the collaborative efforts of Shana Dunn and other legal professionals at West & Dunn, a law firm dedicated to providing high quality legal services to individuals and businesses, with a particular focus on assisting veterans of the United States Armed Forces. If you have questions or would like assistance with your VA claim, the attorneys at West & Dunn can be reached at 608-535-6420.