VA Backlog Could Swell To 10 Year Wait For Vets With Denied Disability Claims

Nov 4, 2016

The Department of Veterans Affairs is struggling with another huge backlog and this time it is not veterans waiting for medical appointments.

Currently, a veteran who has had a disability claim denied must wait - on average four to five years - for an appeals hearing. VA Secretary Bob McDonald predicts that will grow to a 10-year backlog if laws aren’t changed.

James Clarke is one example of who is on that list.

It’s been almost 50 years since James Clarke joined the Marines in August 1967. He served on the flight line - fueling aircraft 12-to-14 hours a day, seven days a week in Vietnam.

“I’m proud to say I was a member of the Tomcats,” Clarke said.

Clarke filed his original claim more than 10 years ago for disability associated with his Vietnam service. He’s survived throat cancer and lives with chronic artery disease. It took the VA four years to deny the claim.

“They turned me down in 2009,” Clarke said. “I filed an appeal and you never hear from them. I’d go over to the regional office from time to time. And ‘Oh, yes, sir, Mr. Clarke, we’re still working on it,’ and nothing.”

Clarke went to the Veterans Advocacy Clinic at Stetson College of Law in Gulfport, Florida for help. There law students worked at developing his claim finding background material about his time in Vietnam and gathering medical details.

The Stetson Veterans Advocacy Clinic sits across a residential street from the Stetson College of Law in Gulfport, FL.
Credit Bobbie O'Brien / WUSF Public Media

Then in late 2015, with the Stetson Veterans Advocacy Clinic representing him, Clarke finally made it before a Board of Veterans Appeals judge.

The judge agreed, Clarke’s disability claim was connected to his service and Agent Orange exposure. She ordered the VA to give him an exam to rate the severity of his disability.

Cases like Clarke’s are why VA Secretary McDonald supports legislation currently working its way through congress.

“The appeals process is 80 years old,” McDonald said during his recent visit to Tampa. “By 2036, it will take 10 years to get an appeal decided. That’s too long. That’s unacceptable to me and it’s unacceptable to other veterans. We need to change the law.”

The U.S. House passed the VA Accountability First and Appeals Modernization Act of 2016 (HB 5620) that would streamline the appeals process and provide additional resources.

Attorney Trista Miller is with the Stetson Veterans Advocacy Clinic and oversees the Pro Bono Initiative.
Credit Bobbie O'Brien / WUSF Public Media

Veterans’ advocates agree the process needs to be changed, but they’re not thrilled with some parts of the legislation.

Trista Miller is an attorney with the Stetson Veterans Advocacy Clinic which is a member of the National Coalition of Veterans Law Clinics.

“I think the disagreement comes in as to how best to readjust the system and efficiency is always on one hand and due process and protecting veterans rights is on the other,” Miller said.

The coalition, Miller said, objects to the Appeals Modernization Act reforms on two counts. It fears the appeals process will become adversarial because the reforms remove the VA’s “duty to assist” veterans. And there are provisions that limit a veterans’ right to provide new evidence to support their claim.

Miller said the coalition recommends delaying passage of the legislation until there’s consideration of the veterans being allowed to hire an attorney if they choose to at the beginning of the process.

If it hadn’t have been for the attorneys and law students at the Veterans Advocacy Clinic, Vietnam veteran Clarke admitted he might have given up on his claim.

“Physically I can’t do more, so you’re kind of relying on - this is going to come through,” Clarke said.

But even after his appeal was finally heard, 10 months passed before the regional VA scheduled the exam the judge ordered. And that only happened when the VA learned a reporter was following Clarke’s case.

And Clarke is waiting no longer. Finally, this month the VA decided how much disability compensation he should get and sent the first check.