For some time now we have heard repeatedly about “wait times” and delays providing medical care to veterans. The fact that it is old news does not make it any less wrong - even though the current head of the VA has dismissed the problem as being akin to waiting in line for a ride at an amusement park. However, healthcare is not the only “wait time” issue for the VA.
The VA has always been slow with disability applications, but I will leave comment on that to those who regularly handle such cases. We do tort claims, malpractice cases. Recently, we have found that the VA’s processing of these claims has hugely slowed down. It is not resolving claims quickly and this means that veterans and/or their families - those with valid claims - have to wait longer for their cases to be resolved. It also means that their net recovery is often diminished.
Let me explain, and to do so I have to provide some background/context: To file a claim against the VA (or a military healthcare provider), you must first give notice to the agency. There is a specific process for doing so. Some folks try to navigate this process on their own, without a lawyer. But almost universally we have seen that trying to take on the VA without an attorney almost always results in the denial of the claim and no money for the veteran or their family.
Once the claim is filed, you are prohibited from filing a lawsuit for six months to give the other side a chance to investigate and, if appropriate, resolve the claim. This is handled by the VA at the regional level. Rarely are cases resolved in this period, although we do see denials frequently issued at around six months. If a case is denied then there are two options, a request for reconsideration may be submitted to the VA Office of General Counsel (OGC) or suit may be filed - meaning we go to court and litigate the case.
Frankly, we find little rhyme or reason to how claims are handled at the regional level. There have been plenty of times when a claim has simply been denied and then we have gone on to obtain a favorable resolution either from OGC or through litigation. However, there is a significant advantage to resolving the case through the reconsideration process as opposed to filing suit. After suit is filed, the statutory attorney’s fee set by Congress goes from 20% to 25% and the case expenses rise significantly. This means that for a settlement of the same amount, the veteran will almost always net less money if a case has to be litigated. So, for many cases, especially ones where we feel the value of the case is relatively modest, we have often advised clients to pursue reconsideration. It will usually take longer, but they have a better chance of getting more money after payment of fees and costs. (A case can also be litigated following the reconsideration process.)
Unfortunately, what we are seeing now with OGC is seeming gridlock. OGC has never been fast, but in the past cases did seem to move through it in some sort of logical progression. That does not seem to be the case anymore. Decisions just can’t seem to get made. Many cases are in limbo. With this in mind, more cases are being litigated that shouldn’t have to be. The OGC lawyers now can’t or won’t even provide an estimate of when their process will be completed - and to the extent they do, it almost always turns out to be incorrect.
I don’t know what is going on there. I suspect it is a management issue as the lawyers we deal with are generally fair and decent folks who seem to want to do the right thing. But, this is a familiar theme with the VA. The VA has many healthcare providers who really do care about their patients and want to help them. The system - the management, if you will - ties their hands and prevents this from happening. I suppose it is not surprising we see the same thing on the legal side of things.
The healthcare delays and “wait times” can have deadly consequences. We see that frequently and it is regularly reported in the news. The delay in processing and resolving valid claims adds insult to injury. It’s just wrong.