Decision wait times
Workload challenges | Requirement to work cases in docket order | Complexities of two separate appeal systems | Veteran choices under the AMA necessarily influence waiting times | Hearing cases generally take longer because of Judge availability | Board remands of cases for additional case development | Despite wait times, Veteran trust increases during appeal process | Internal review process prior to sending final decisions | Court review of Board decisions
Why does my appeal at the Board of Veterans’ Appeals (Board) take so long, and what is the Board doing about it?
The Board understands that many Veterans and appellants have been waiting a long time for a decision. We acknowledge that this wait can be very frustrating and want to explain why getting a Board decision can take a long time, and what options Veterans and appellants have to reduce the time they have to wait for a decision.
In recent years, the Board has resolved about 100,000 appeals each year. Despite these high numbers of decisions each year, the Board recognizes there are still approximately 200,000 appeals waiting for a decision. However, this is substantially down from nearly 475,000 appeals waiting for a decision just six years ago, which is significant considering an increasing number of Veterans have filed an appeal at the Board in recent years. We have Congress to thank for better resourcing the Board to hire more Veterans Law Judges (VLJ) and supporting counsel and staff to help resolve these appeals.
The Board recognizes that each and every case has a unique set of circumstances that our VLJs carefully evaluate and appropriately resolve according to governing laws and regulations. Below is a five-year trend of workload and decided appeals.
By law, the Board must generally decide appeals in the order they are docketed (initially filed) with the Board, except for those cases advanced on the docket for extenuating circumstances set out in statute or cases returned to the Board for expedited processing after remand. More specifically, the docket order addressed in 38 U.S.C. § 7107(a)(1) and maintained by the Board must account for cases that have been advanced on the docket, cases that receive expedited treatment on remand from the United States Court of Appeals for Veterans Claims (Court), cases that have been returned to the Board from the Agency of Original Jurisdiction (e.g., Veterans Benefits Administration, Veterans Health Administration) following remand, and cases that either are awaiting or have had a hearing. Overall, this means cases are generally worked on a first-come, first-served basis. For example, legacy cases either remanded from the Court, or remanded to the Agency by the Board, maintain their original docket numbers upon return to the Board and generally must be expedited ahead of most other cases. Thousands of cases previously adjudicated by the Board are remanded and returned to the Board each year by the Court. These returned cases move ahead of other first-time appeals awaiting adjudication even though these remanded cases usually don’t result in a different outcome upon re-adjudication by the Board.As you can see below, advanced on docket cases, Court remands, and returned remands have significantly impacted the composition of Board’s annual workload during the past three years:
When a Veteran files an appeal with the Board, the first thing that happens is the Intake team reviews the appeal to make sure they have all the information they need, and then it is docketed at the Board. The Board may need to complete administrative tasks before the appeal can be worked, such as making sure we have a brief from a Veterans Service Organization or fulfilling any Privacy Act requests. Given the increasing number of appeals filed at the Board and the fact that many may require an administrative task, there is a corresponding increase in the time it takes for any given appeal to come before a VLJ.
Once an appeal is eligible for review based on its place on the docket, it will be assigned to a VLJ. The VLJ assigns the case to an attorney, who reviews the entire file and drafts a decision. The draft is then reviewed for factual accuracy and signed by a VLJ. Many of these appeals involve multiple issues, and the claims files can have thousands of pages of evidence. The Board has a responsibility to review the entire record and write a thorough and well-supported decision; attorneys and Judges consider each appeal carefully, which is why it can take a while to get a decision in certain cases.
VA understood that the older “legacy” claims and appeals process was slow and confusing, and, in response, Congress passed the Veteran Appeals Improvement and Modernization Act of 2017 (AMA), also known as the modernized review system. You can read the full Public Law. This new law offers Veterans more choices regarding the type of review they select when they disagree with a VA decision denying a benefit. In addition, the law ensures that Veterans and appellants can preserve the earliest effective date possible by continuously pursuing their claim. This means that as long as a Veteran continuously appeals their claim within the allotted time period, if it is eventually granted, the effective date can go back to the first claim. The AMA allows Veterans and appellants to seek an additional review following a Board decision without going to the United States Court of Appeals for Veterans Claims; rather they can now file a supplemental claim with the VA office of jurisdiction for review of new and relevant evidence following a Board decision.
While the AMA was designed to help make the claims and appeals process less cumbersome and more efficient, there are still approximately 70,000 legacy system appeals that generally represent the oldest appeals where Veterans have been waiting the longest for resolution of their appeals.
The requirement to generally decide older legacy appeals first necessarily means it has been taking longer than expected for the Board to fully resolve more recently filed appeals under the AMA. As you can see below, the old legacy system appeals still pending adjudication have been pending for quite some time. However, the second graph demonstrates how diligently the Board has been working to resolve the backlog of these older legacy system appeals during the past 5 years. It is worth noting that contributing to the time it takes for the Board to adjudicate appeals, many legacy cases have been remanded to the Board from the Court or returned to the Board by the initial adjudicating Agency after previous remands from the Board. Due to the nature of those legacy remands, which maintain their original place in line on the Board’s docket, the order of cases pending before the Board can fluctuate greatly. In other words, this means that previously adjudicated legacy appeals that were remanded and returned to the Board will generally be distributed for re-adjudication ahead of original appeals that have not been previously before the Board.
These descriptions help provide some clarity on Average Days Pending (ADP) and Average Days to Complete (ADC) measurements for legacy appeals in the graph above.
Original Legacy Appeals ADC: The average days to complete an original appeal is measured as the average number of days between the date the appeal is certified to the Board by the Agency of Original Jurisdiction (AOJ) and the decision (dispatch) date.
Post Remand Legacy Appeals ADC: The average days to complete a returned remand appeal is measured as the average number of days between the date the returned remand is docketed by the Board and the decision (dispatch) date. CAVC remands are not represented/included in this calculation.
Original Legacy Appeals ADP: The average days pending for original appeals is calculated from the date the appeal is certified to the Board by the Agency of Original Jurisdiction (AOJ) and any given date for appeals currently awaiting a Board decision.
Post Remand Legacy Appeals ADP: The average days pending for returned remand appeals is calculated from the date the returned remand is docketed by the Board and any given date for appeals currently awaiting a Board decision. CAVC remands are not represented/included in this calculation.
A large number of these cases have already undergone at least one Board review and were remanded for further development before returning to the Board. The Board is committed to deciding the remaining legacy appeals consistent with VA’s plan to draw down legacy appeals. However, it is important to note that the Board is deciding an ever-increasing number of AMA appeals each year. During the first year after AMA implementation, relatively few AMA cases were decided. Currently, approximately 20-30% of all decided cases are appeals filed under the AMA. The Board anticipates that as the number of legacy appeals decreases and the number of AMA appeals increases, the distribution percentages will correspondingly change.
The AMA applies to all claims for which VA issues an initial decision on or after February 19, 2019. Previously, in the legacy system, a Veteran or appellant could only appeal an unfavorable decision to the Board. A Veteran can now request review of an unfavorable decision through three different review options, or “lanes:” Higher-Level Review, Supplemental Claim, or appeal to the Board. Board review is only one of three options to request review; it may not be the best option depending on a Veteran’s specific circumstances. Additional information about Higher-Level Review and Supplemental Claims can be found on the Appeals Modernization page. If a Veteran requests Higher-Level Review or files a Supplemental Claim, they can still appeal to the Board if they disagree with the new decision.
As the AMA emphasized, Veteran choice is an important factor in how long it will take to resolve an appeal. For Veterans and appellants choosing to appeal a decision directly to the Board, there are now three different review options, or “dockets,” they can choose from that best meet their unique circumstances:
- Direct Review docket: The fastest way to receive a decision when a Veteran or appellant believes everything needed to approve their claim is already in the file. The Board will not consider any new evidence, and the VLJ will decide their case based on the evidence in the record at the time of the decision they are appealing.
- Evidence Submission docket: Some Veterans know they want or need to add additional evidence into their file for consideration by a VLJ. In that case, the Evidence Submission docket allows for additional evidence to be submitted by the Veteran or their representative within 90 days of appealing to the Board.
- Hearing docket: On average, it takes the longest to receive a Board decision for appeals on the Hearing docket. This option is best if a Veteran wants to appear personally before a VLJ. In most cases, this is done over video. However, this option will involve the longest wait time.
View the Choosing a Decision Review Options page for more information on choices available to Veterans under the AMA.
As you can see below, the Board’s projections for how quickly AMA cases will be decided stems directly from the choices that Veterans and their representatives decided were best for their individual circumstances.
These descriptions help provide some clarity on Average Days to Complete (ADC) and Average Days Pending (ADP) measurements for AMA appeals in the graph above.
AMA ADC: The average days to complete an AMA appeal is measured as the average number of days between the date the notice of disagreement (NOD) is received by the Board and the decision (dispatch) date.
AMA ADP: The average days pending for AMA appeals is calculated from the date the NOD is received by the Board and any given date for appeals currently awaiting a Board decision.
From the graph above, the average days to complete (ADC) represents how long on average, Veterans waited for a decision on their appeal for decisions issued in the current fiscal year, beginning from the date the appeal was filed, until the date the Board issued a decision. The ADC will vary depending upon which docket (i.e. Direct Review, Evidence Submission, Hearing) the decision was issued in. Some Veterans and appellants will get a decision faster than the average, and some will wait longer. There are a number of factors that impact how long it will take to get a decision.
Similarly, from the graph above, the average days pending (ADP) represents how long on average, Veterans who have not yet received a Board decision have been waiting, beginning from the date they filed the appeal through the last day of the month described on the graph. The ADP will vary depending upon which docket (i.e. Direct Review, Evidence Submission, Hearing) the appeal is currently pending in.
The Board is required to decide cases in regular order according to its respective place on the docket; however, there is an exception for cases that have been advanced on the docket, or that have been remanded by the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7107; 38 C.F.R. § 20.800. As noted above, legacy appeals have older docket dates than many AMA appeals, so these cases are prioritized consistent with VA’s goal to draw down the number of legacy cases and decide cases in docket order. The Board may advance a case on the docket in circumstances of advanced age (75 years or older), financial hardship or a serious illness, administrative error, or for other sufficient cause, such as unusual hardship due to a natural disaster. If a Veteran or appellant would like to request that their appeal be advanced on the docket, the instructions are located on our Customer Service page.
As you can see above, cases where a Veteran or appellant requests a hearing take the longest time to receive a decision. If you request a hearing, it can take more than two years to hold a hearing and to get your decision. The reason it is taking the Board so long to resolve appeals in the hearing docket is based on two key factors: (1) The large number of Veterans choosing the hearing lane; and (2) The large number of “no shows” and scheduled hearings that are withdrawn too late to fill the slot with another waiting Veteran.
Since AMA went into effect, nearly 41% of Veterans and their representatives chose to have a hearing with a VLJ prior to the Board rendering a decision.
However, as you can see from the bar graph below, Veterans preference has started to shift toward preferring the Direct Review Lane, with 45% of Veterans thus far in FY 2023 choosing the Direct lane and only 35% now preferring to have a Hearing with a VLJ.
Because the number of VLJs is limited and each VLJ has only so many hours each day, the Board’s published goals for anticipated wait times reflect a careful balance of workload between VLJs holding hearings versus the time VLJ spend reviewing files and issuing written decisions on appeals not involving hearings. This includes AMA cases where Veterans chose the Direct or Evidence Submission dockets described above, where the VLJ is only reviewing the claims file before issuing a decision.
Through several initiatives, the Board was able to significantly increase the number of hearings held in FY 2021-2022 and held a record number of hearings in each year. These initiatives include expanded virtual tele-hearing capacity and enhanced hearing capabilities such as more flexible daily dockets, and the ability to quickly convert any previously scheduled hearing type to a virtual tele-hearing; enabling hearing email reminders; restructuring the Board’s hearing operations; and increased coordination with Veterans Service Organizations and private representatives. As a result, a record 30,089 hearings were held in FY 2022, surpassing the previous record of 23,777 held in FY 2021.
The Board experienced a slight decrease in the number of decisions issued in 2022 because of the added focus placed on conducting more hearings to help recover from the lower number of hearings held during the first year of the COVID pandemic in 2020. The Board’s leadership monitors the Board’s finite resources in balancing holding Veteran-requested hearings and issuing decisions for Veterans. With the number of appeals with a hearing request pending currently at manageable levels, the Board plans to focus efforts in FY 2023 on deciding a higher number of appeals and anticipates scheduling (and holding) a few number of hearings this fiscal year.
If a Veteran or appellant wants to request a hearing, there are several different hearing types available:
- Virtual Tele-hearing: You can attend the hearing from anywhere with a Wi-Fi connection using any internet-connected device, such as a cell phone, tablet, or computer. You and your representative can attend virtually from separate locations. No travel is needed.
- Videoconference Hearing: You will travel to a VA regional office (RO) for a video hearing with a VLJ. The RO facility will connect you to a video and audio feed to a Board VLJ. Videoconference hearings are open depending on the status of the RO, but due to the COVID-19 pandemic, RO’s are still only able to accommodate a limited number of Veterans to make sure everyone is socially distant and safe.
- Central Office Hearing: You will travel to Washington, D.C., for an in-person hearing with a VLJ. Again, there is a limited capacity for these hearings to ensure appropriate social distancing and sanitized hearing rooms. If you prefer not to wait, the Board has more openings for virtual tele-hearings.
*Note: Travel Board Hearings will no longer be offered after resolution of the pending legacy inventory scheduled to achieve functional zero in FY2023.
| Hearing Type | Legacy | AMA |
|---|---|---|
| Central Office | 1,546 | 1,177 |
| Travel | 2,733 | N/A |
| Video | 2,154 | 829 |
| Virtual | 2,207 | 717 |
As you can see above, the overwhelming majority of hearings the Board currently holds are virtual tele-hearings. This is the fastest way for you to have a hearing. Videoconference hearings and Central Office hearings take significantly longer to schedule than a virtual tele-hearing.
A virtual tele-hearing is almost the same as a videoconference hearing, except a Veteran does not have to travel to an RO and can participate from their cell phone, tablet, or computer. View additional information on virtual tele-hearings, to include how to request a virtual tele-hearing. If you would like to switch your hearing request to a virtual tele-hearing, call your representative and tell them to email the Board. In addition, representatives with Caseflow access can select a virtual tele-hearing for their client directly through Caseflow.
One important piece of information for Veterans is they may not get a decision immediately after the hearing; it may take up to six months or more to get a decision even after they have appeared at a hearing. This is because the Board is trying to provide hearings as soon as we can, but cases still need to be decided in docket order. If your hearing is held prior to your case being ready to decide based on the docket order, you may have to wait several months before you get a decision.
It’s important to keep in mind there are only so many Veterans Law Judges at the Board and judges are the only ones who can both hold hearings and decide cases. The Board has the capacity to hold approximately 1,000 hearings each week, but most Veterans are represented for free by Veterans Service Organization partners who do not have that same capacity. Additionally, nearly one out of every two scheduled hearings are cancelled or withdrawn with insufficient time to fill that empty slot with another Veteran waiting patiently in line. Worse, the Board’s judges spent precious time reviewing case files and preparing for hearings that were not held. The chart below illustrates the ratio of hearings held versus hearings scheduled and highlights the challenge to ensure judge availability is maximized.
In addition to increased choice and control, the AMA has had other benefits for Veterans and appellants as well. Compared to the legacy system, the percentage of AMA remands has gone down, and the percentage of cases where requested relief is granted is on the rise. This is good news for Veterans and appellants as they are more likely to get a decision in the AMA, and this has decreased the percentage of cases being sent back by the Board to regional offices for development.
In addition to working hard to get decisions out to Veterans and appellants, the Board is continually collecting feedback from Veterans and appellants and using it to improve our customer service experience. Specifically, the Board sends surveys to all Veterans to seek their feedback at three stages during the appeal: 1) When the appeal is first docketed at the Board; 2) Immediately after their hearings, if requested; and 3) After they receive the Board’s written decision on their appeals.
The survey data demonstrates that the Veteran experience during the appeal process is generally positive, with overall trust scores rising approximately 20 percentage points from the time they first file with the Board until after they receive the Board’s decision. As shown below, Veteran trust in VA’s commitment to them is fairly low when they file their appeals. That’s unsurprising considering they are appealing a “no” decision from VA with respect to their claim for benefits and services. However, that score goes up dramatically after a hearing with a Board Veterans Law Judge, which is the first opportunity for many Veterans to hear a first-hand explanation from the judge about why the initial claim was denied and what evidence is needed to support the benefits or services sought.
As you can see above, Veterans leave the Board with higher trust levels than they had when they first filed their appeals. While only about half of Veterans agree they “trust” the Board after getting their final decisions, that is far higher than the percentage of those same Veterans who received a “grant” on one or more issues in their appeals, which is about a third of Veterans receiving a decision on their appeal. Below are statistics showing the percentage of “issues” granted in cases coming to the Board in both appeals systems:
Because the Board is resolving such a high volume of pending appeals each year, some external stakeholders have expressed concern that this pace of work at the Board might sacrifice the quality of decision-making by Board judges. However, the Board is committed to ensuring every appeal is decided as efficiently as possible, with a high degree of confidence that the Board’s judges are appropriately resolving appeals in accordance with the law. For example, the Board’s Office of the Chief Counsel has specially trained attorneys meticulously review thousands of judge decisions each year before those decisions are released to the Veteran. To put it bluntly, they identify procedural issues or other potential flaws in these decisions even though those identified issues don’t amount to clear legal error. Indeed, many “errors” identified are actually favorable to the Veteran, such as when a judge is attempting to remand a case for additional development of evidence that might prove helpful to the Veteran, but the law requires the judge to rule only on the evidence before the judge because the evidentiary window is already closed.
Any potential issues or errors found during the review process are called to the attention of the Veteran Law Judge who signed the decision so the judge has the opportunity to revise or improve their decisions. For example, the decision could be remanding an issue to seek additional evidence that might potentially be favorable to the Veteran’s case, but the quality review notes the law doesn’t allow additional case development at that stage of appeal. While not prejudicial to the Veteran’s case, it is still flagged as an “error.” Like an umpire who calls “strikes” with very big “strike zone,” the Board the overwhelming majority of “strikes” called involve circumstances when there is no clear legal error at all. Virtually all errors the Board discovers during its own quality reviews are process or procedural errors. The Board’s independent review process almost hardly ever finds “clear and unmistakable error” that would cause a case to be overturned on appeal. The chart below illustrates the percent of decisions reviewed where no flaws can be found with the judge’s written decision. The annual goal is 92% in both systems.
Other stakeholders question the number of Board decisions appealed to the Court of Appeals for Veterans Claims that are remanded to the Board. The Board issues roughly 100,000 decisions each year, it grants relief on 20-30% of the issues that come before the Board in the two appeals systems and remands tens of thousands of cases for further evidence based on VA’s duty to assist. Generally, more than 40,000 appeals where full relief was not granted are eligible for appeal each year. Of that number, reports show fewer than 20% of those cases (8,000-9,000) are appealed to the Court each year. In addition, as the Board has decided more cases each year, the percentage of cases that have been appealed to the United States Court of Appeals for Veterans Claims has stayed the same.
Annual reports show the Court reverses very few Board decisions for being “clearly erroneous.” More often, Court clerks and VA Office of General Counsel attorneys agree to jointly remand select issues from appealed cases back to the Board so the judge can further explain the reasons and bases supporting the judge’s denial. This is not legal error, but rather, the parties attempt to ensure the rationale supporting the Board’s decision is more fully articulated to the Veteran and their counsel.
In addition, in the AMA, Veterans and appellants now have an additional method of requesting review of a Board decision other than appealing to the Court of Appeals for Veterans Claims. Veterans can now file a supplemental claim with new and relevant evidence to request review of a Board decision. As long as Veterans continuously appeal their claim within the allotted time period, if it is eventually granted, the effective date can go back to the first claim.
The Board understands that this process can be long and frustrating for Veterans, but we hope that this provides information to explain why your appeal is taking so long, and what VA and the Board is trying to do about it. Additional information can be found on the Appeals Modernization page.
