Attorneys who decide on veterans’ benefits appeals struggled to meet caseload requirements during the upheaval of the COVID-19 pandemic, and women more often faced such challenges, a union officer explained to lawmakers July 13.

The Board of Veterans’ Appeals also is failing to reach targets to cut a backlog of legacy appeals cases because of pandemic complications, the House Veterans Affairs Committee learned.

Board attorneys who fall short of certain caseload expectations are often placed on performance improvement plans, and usually about two or three employees must follow such plans each year.

“Currently, there are 31 attorneys on PIPs, 20 of whom are women, and many whom are also parents of young children who did not have child care for all or part of the COVID-19 pandemic,” Gillian Slovick, second vice president of Local 17 for the American Federation of Government Employees.

“As a mother of a young child myself, I can assure you that having my child at home made a hard job requiring intense focus and concentration even more difficult.”

Of the 996 employees at the board listed under the “general attorney” classification, approximately 59 percent are women, but about 65 percent of the 31 employees placed on PIPs were women, indicating that female employees disproportionately struggled with performance metrics.

For all attorneys, the struggle stems in part from the transition to a new appeals system under the Appeals Modernization Act that passed in 2017.

“Prior to the implementation of the AMA, Board attorneys were expected to complete 125 cases a year, a pace that averaged 2.4 cases per week. Each case, regardless of the number of issues decided, carried the same weight towards an attorney’s production quota. In FY 2018, the Board increased its production standards from 125 to 169 cases per annum, (or 3.25 cases per week), a 35 percent increase in production requirements which was overwhelming for Board attorneys,” Slovick said at the hearing.

The union official described an alternative productivity measure the Board of Veterans’ Appeals created in fiscal 2019, evaluating the total number of issues within cases that an attorney resolves. The number has changed every year.

“AFGE supports the creation of this alternative metric as it better accounts for the amount of work required to complete each case. However, we caution that measuring the number of issues can also be manipulated to create unfair metrics. Unfortunately, this manipulation appeared in FY 2020, the first full year the AMA was fully implemented, because while the case quota remained at 169, the issue quota was raised to 566.”

This year, the number lowered to a “more manageable but still difficult” level of 156 cases or 491 issues, Slovick said.

The COVID-19 pandemic also threw a wrench into the board’s efforts to reduce its backlog of benefit appeals cases and transition more completely to a new, faster process under the Appeals Modernization Act.

As Rep. Elaine Luria, D-Va., noted at the hearing, the agency will fail to meet its goal of addressing all legacy cases that don’t fall under the AMA as “a direct result of impacts from the COVID-19 pandemic.”

But according to board Chairman Cheryl Mason, the agency is on track to hold a record number of hearings in FY 2021, leading to potentially larger caseloads for attorneys.

And caseloads may prove particularly challenging because from March 1, 2019, through June 23, 2021, a total of 148 board attorneys resigned or were removed, according to Slovick.

The Biden administration has begun to take steps to expand the workforce at the board, as Mason announced July 13 that the White House had approved 20 new veterans law judges to join the agency.

“As we go forward, we will be announcing another cohort … for veterans law judges once we get the FY22 funding,” said Mason. “One judge equals about 10 staff, both attorneys and administrative staff.”

But Slovick also suggested that the agency adjust requirements that a judge sign off on a case before it counts toward attorney totals, as that leaves a part of the attorneys’ performance metrics outside their control. She also recommended allowing certain attorneys to specialize exclusively in legacy cases while the backlog remains in place, so that employees don’t have to switch back and forth between two different systems for different cases.

Rep. Mike Bost, R-Ill., suggested that the board invest in machine learning performance management tools, similar to one used by the Social Security Administration to improve the accuracy of decisions and compliance with agency policy.

“I believe the VA should take its cues from SSA and make critical investments in the technology that will simplify the process. This would allow employees to focus on work that computers can’t do,” said Bost.

But SSA’s appeals employees are facing their own problems with caseload and performance expectations, as a recent Government Accountability Office study found that the agency had not provided clear rationale for its decision expectations, which many employees have struggled or failed to meet.

Jessie Bur covers federal IT and management.

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