A painful wait: Thousands of Phoenix area veterans waiting for benefits amid nationwide backlog

PHOENIX - Hundreds of thousands of veterans who served our country are still waiting for benefits due to a massive claims backlog – some have been waiting years.

The U.S. Census Bureau says there are nearly 500,000 veterans in Arizona, and records in the U.S. Department of Veterans Affairs (VA) database show more than 7,000 claims pending in the Phoenix area.

There's a backlog of cases that continues to grow older.

‘We served our country’

U.S. Army veteran, Michael Cooksey, says he's been fighting for disability benefits for at least two decades. He's angry.

To put it simply, he's tired of living in pain.

"This is the claim I’m fighting right now," he said, referring to what seems like a never-ending, uphill battle for the veteran who served his country from 1986-1997.

Life is so much different now as the 54-year-old continues to add to a large stack of medical records.

"We served in the military. We served our country, and in the process, we either got injured or something happened," he said.

He's fighting to prove he needs disability benefits from the Department of Veteran Affairs. "Highlighted I had pain. They have it on the paperwork. Chronic pain, right hip," he said.

Cooksey lives with tropical pyomyositis, a disease he claims he contracted in 1993 during a tour in Korea.

The disease is characterized by dead tissue, bacteria, and dead white blood cells within the skeletal muscles. It's primarily a disease reported in tropical regions.

"At the time when this happened, I was recovering from an eye injury and I was on steroids. The steroids suppressed my immune system, which caused the staph to get into my muscles, and it caused the muscles to necrosis, deteriorate, and cause large abscesses. So it's chronic pain," Cooksey said.

'I don't know what it is they're looking for'

He gets a small portion of disability benefits for the damage to his eye. His medications are covered by the VA, but he says he's been denied disability benefits for chronic pain in his right hip caused by his disease since 1998.

His latest denial was in 2013, which he appealed in 2016. It took 5 years to be heard in front of the Board of Veterans' Appeals.

A letter from the board states his appeal has been remanded, meaning further development is needed, specifically an examination for an opinion on his hip.

"Everything's there. I don't know what it is they're looking for. They always say that I need to submit more and more proof. I don't know what else I can submit," Cooksey said.

Taking a look at VA records – they show a national backlog impacting the Phoenix region.

There are currently nearly 7,353 pending claims. About a third of those, 2,289, or 31%, are claims older than four months.

Last year at this time, the Phoenix region had 4, 766claims pending, with about half of them, 2,395, at least four months old.

As of the first week of April 2022, there are more than 230,000 backlogged claims out of more than 600,000 claims in process across the country.

Cooksey says enough is enough.

"23 years I've been dealing with this. That is the better part of half my life that I've been dealing with this," he said.

‘Unfortunately, that is not uncommon’

As for primary care appointments for new patients – the Veterans Health Administration website shows you the average wait time for various locations across Arizona – ranging from seven days in Prescott to nearly 50 days in Surprise.

The list includes 46 days for the clinic in Gilbert, 45 days in Scottsdale, 34 days at the southwest Phoenix clinic, 31 days for the Phoenix midtown clinic and 25 days for Carl T. Hayden near 7th Street and Indian School Road, where Cooksey gets treatment.

Derek Debus is the Director of Military and Veterans law for Stone Rose Law Group.

He explains, "Unfortunately, that is not uncommon. The Veterans Health Administration, which is one facet of the Veterans Administration. The Department of Veterans Affairs is extremely understaffed, they're underfunded, and yet they have a mandate to provide a wide variety of services to the people who have served our country."

Debus represents veterans in cases with the Board of Veterans' Appeals and knows exactly what Cooksey is dealing with.

"So right now, if I filed an appeal to the Board of Veterans' Appeals in the hearing lane, which would give me a hearing before veterans law judge, I would expect to have a hearing within the next 18 to 24 months. Now after that hearing, there is 90 days for me to supplement the record with additional evidence and then about 90 days after that, there may or may not be a decision. So these appeals are taking quite a long time," he explained.

'I'm tired of my life being the way it is'

No benefits for Cooksey, and no full-time job, because his chronic pain just doesn't allow him to work long hours.

"It's still people waiting years. There are still people that are just now filing. They have no idea how long it's going to take to get them. How many of these people are my age that are filing now," Cooksey said.

He's beaten down by what he calls a "broken system."

"I don't even want to wake up. I hope I just go to sleep, and I don't wake up. Tired of dealing with it. I'm tired of my life being the way it is," he said.

A spokesperson for the VA is working on getting answers to FOX 10's questions specifically about Cooksey's case and why he's had to wait so long for a decision. Meanwhile, Cooksey now has an appointment set for late April 2022 regarding his appeal.

What's next for VA?

The Biden-Harris administration requested the 2023 fiscal year budget for the Department of Veteran Affairs be a little more than $300 billion. That's a 10% increase from 2022.

With that, there would be an investment in human infrastructure to hire nearly 30,000 full-time personnel.

According to the VA database, these 7,353 pending claims in the Phoenix system specifically require a rating. FOX 10 found an additional 968 pending claims that do not require a rating as of April 2, 2022. 

UPDATE: Gary Kunich, a spokesperson with the VA, provided answers to our questions, including the case of Michael Cooksey:

With the three new disabilities linked to Agent Orange, Secretary McDonough said to expect an increase in the claims backlog by this Fall. How will this be addressed?  

VA is taking the following proactive steps below to accelerate processing and reduce the number of Veterans awaiting a decision:

• VBA is hiring and training approximately 2,000 employees to assist and support disability benefits claims processing in order to combat backlog growth and restore processing timeliness to pre-pandemic levels.
• VBA has concurrently expanded claims processing capacity through utilization of overtime funds, totaling $100 million, granted through American Rescue Plan (ARP) funds.
• The Veterans Benefits Administration plans to reduce the current claims backlog to 100,000 claims by mid-FY 2024 with maintained improvement of VA’s evidence supply chain of C&P examinations and Federal Records, continued expansion of processor and support capacity, and with all requested resources received.

Can you explain the process with the VA board of appeals? 

As a general matter, when the Board of Veterans’ Appeals (Board) receives a valid notice of disagreement (NOD) for claim in AMA, or Form 9 in Legacy claim; which is what initiates an appeal of a VA decision to the Board, the appeal is docketed under the appropriate docket and a notice letter is sent to the appellant and their representative, if applicable. The dockets include the legacy docket (pending appeals from the legacy review system) and the three dockets under the modernized review system (AMA): Direct Review; Evidence Submission; and Hearing. The legacy review system applies to appeals of decisions issued prior to February 19, 2019, and the AMA applies to appeals of decisions issued on or after February 19, 2019, as well as legacy appeals that were opted into the AMA. 

What happens if someone's claim gets responded to by an official saying there is not enough adequate information when the veteran has provided all he/she can?

VA is committed to ensuring Veterans receive the benefits and services they deserve and works to ensure Veterans are informed in every step of the process. VA’s claim process requires the Department to notify a Veteran of the evidence needed to support the claim. When a Veteran identifies certain types of evidence, such as military records, federal civilian records and/or private medical records, VA has a duty to assist the Veteran in gathering this evidence. If an unfavorable decision is made, the rating decision specifically tells the Veteran what evidence was favorable in supporting the claim and what evidence is still needed to support the claim. Then, when a Veteran is notified of this decision, this notice includes a VA form 20-0998, which describes the review options available should the Veteran wish to seek further review of the decision. These options include filing a Supplemental Claim, a Higher-Level Review or Appeal to the Board. 

The Veterans’ benefits claims and appeals process is non-adversarial and VA resolves the benefit-of-the-doubt in favor of the Veteran. The Board approaches each appeal using this pro-Veteran lens and will award the benefit sought whenever there is sufficient evidence to grant the appeal, which includes when the evidence for and against the claim is in approximate balance. 

Under the law, if the Board determines that there is insufficient evidence to grant the benefit sought on appeal, it will either deny or remand the issue. The Board will remand when it is determined that there was an error on the part of the agency of original jurisdiction (AOJ) in developing the claim, such as not fulfilling VA’s duty to assist. If the Board remands, it will direct the AOJ as to what action needs to be taken to fully develop the claim, including satisfying VA’s duty to assist the claimant. If the Board finds that a remand is not warranted, the claim will be denied. 

Does the claim restart? Or get denied? (Example, veteran I spoke to said his claim got kicked back to the VA) 

VA works with the Veteran to ensure they are informed of a claim decision and what additional information, if any, may be needed. If an unfavorable decision is made, the rating decision specialist tells the Veteran what evidence was favorable in supporting the claim and what evidence is still needed to support the claim. Then, when a Veteran is notified of this decision, this notice includes a VA form 20-0998, which describes the review options available should the Veteran wish to seek further review of the decision. These options include filing a Supplemental Claim, a Higher-Level Review or Appeal to the Board. In order to preserve the effective date of the claim filed, one of these review options must be filed within one year of the decision notification.  If the Veteran elects to submit an Appeal to the Board, and upon review, the Board determines that additional evidence is needed, the Appeal is then returned to VA to complete the necessary development for the additional evidence.  Once that development for evidence is complete, VA will then make a new decision, and if the denial is continued, it is returned to the Board for further review. 

If the Board remands an appeal for additional development, the AOJ will conduct the identified development and readjudicate the claim. In the legacy system, the AOJ will issue a supplemental statement of the case (SSOC), and the appeal will be transferred back to the Board for readjudication. In the legacy system, the appeal retains its original place on the docket. 

If the Board remands an appeal governed by the AMA, the AOJ will conduct the necessary development and readjudicate the claim by issuing a new rating decision. The claim for benefits will not automatically return to the Board – the claimant has the option to pursue one of three AMA review options: Higher-Level Review; Supplemental Claim; or Board appeal. If the claimant pursues a Board appeal, the Board will assign a new docket number for the appeal based on the date it was received.  A key aspect of the AMA is to provide Veterans with choice and control over their claims and appeals.  

In the specific case of Michael Cooksey, I would just ask what has been the big roadblock for his appeal that started in 2016 and what is the status now? 

As a general matter, submission of a timely NOD in the legacy system requires the AOJ to reevaluate the claim and issue a statement of the case (SOC) if the benefit sought continues to be denied. The claimant then has 60 days from the issuance of the SOC, or one year from the issuance of the initial decision, whichever is later, to perfect the appeal to the Board, which is accomplished by submission of a VA Form 9 to the AOJ. 

Here, the Veteran submitted his notice of disagreement (NOD) in April 2016. The AOJ issued an SOC in June 2018. The Veteran perfected his appeal by submitting a VA Form 9 in August 2018, and requested a videoconference Board hearing at that time. The AOJ certified and transferred the appeal to the Board in September 2018. In October 2018, the Board notified the Veteran that his appeal had been received and been placed on the Board’s docket. 

Following the onset of the COVID-19 pandemic in early 2020, VA’s regional offices, which are where an appellant would appear for a videoconference Board hearing, closed their doors to the public, which effectively prevented the Board from holding videoconference hearings. In September 2021, the Board notified the Veteran and his representative that many regional offices remained closed to the public due to the pandemic, and recommended that the Veteran instead choose a virtual tele-hearing.  As a result of the VA Tele-Hearing Modernization Act, Veterans may choose to have a virtual tele-hearing, which enables Veterans to participate from the comfort of their own homes and does not require travel to a regional office for a hearing with a VLJ. 

The Veteran participated in a virtual tele-hearing in November 2021 with a VLJ. A transcript of the hearing was then prepared and, in March 2022, the Board remanded the Veteran’s appeal for service connection for a right hip disability back to the AOJ for additional development, including obtaining VA treatment records and a new medical opinion.  

In summary, the appeal could not be assigned to a VLJ for adjudication until the requested hearing was held, and the ability to hold that hearing was delayed as a result of the COVID-19 pandemic. 

Is it harder to decide on benefits for chronic pain claims? 

VA is committed to ensuring every claim is reviewed fairly. The evidentiary standard for deciding a VA claim is the same regardless of the specific claim filed.  The evidence must show a verified in-service injury, disease, or event; the presence of a current disability; and competent medical evidence of a link between the current disability and the in-service injury, disease, or event.

Chronic pain, which unlike some other conditions, may be established by lay evidence. As every Veteran is an unique individual evidence document chronic pain in and following service varies greatly. However, evidence documenting chronic pain in and following service varies greatly by appeal, so there is no one-size-fits-all answer, as it would depend on the facts and circumstances of individual appeals.  

The Board has over 100 VLJs who are appointed by the Secretary with approval by the President of the United States.  Each VLJ exercises independent judicial discretion in deciding appeals which fall within the Board’s jurisdiction on behalf of the Secretary.  VLJs are bound in their decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.  In each appeal, the VLJ will consider all relevant evidence, including in-service personnel and treatment records, post-service VA and private treatment records, and lay evidence such as statements from the Veteran and family members.
 

Learn more about VA disability ratings: https://www.va.gov/disability/about-disability-ratings

For more information on tropical pyomyositis from the National Library of Medicine: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3842701

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