Why Did A VA Advisory Laugh At Chief Judge Kasold DBQ Critique?

Chief Judge Kasold

Benjamin KrauseA VA Advisory Counsel laughed at a critique about disability benefits questionnaires (DBQ) from US Court of Veterans Appeals (CAVC) Chief Judge Kasold. And I for one could not believe what I was reading during my analysis of FOIA documents I recently received from VA of a 2014 Advisory Council meeting about disability compensation processes.

Do you agree that VA executives and its Advisory Council should likely not laugh at a critique from any Chief Judge of any court? I think the feedback from the opinion was certainly inappropriate here but I’m glad to know VA internally is aware of the problems it will face from the DBQ system.

For some background, last year Chief Judge Kasold stated in an opinion that the whole DBQ process is flawed at that VA should scrap it to start over. Following a reference to the Chief Judge Kasold’s opinion, the Advisory Committee and attendees laughed.

This was according to a transcript of the DMA meeting on page 264:

DEVINE: Just kind of in the middle. Maybe on the recorder so they don’t quite get all of what I’m about to say. The Court, however, does not like DBQs, and the Court has stated so in an opinion that was rendered in March where the Chief Judge said in a footnote that basically his opinion is that the Secretary should scrap them and start completely all over.


DEVINE: That’s basically his opinion, and you don’t need legalese to interpret. It was fairly straightforward.

Danny Devine, a VA executive, was one of the attendees at the Advisory Committee meetings. Devine is responsible for a portion of the Disability Medical Assessment office responsible for disability compensation examinations.

So to my question above, I am still not sure why those present at the Advisory Council meeting laughed at the critique from Chief Judge Kasold. Nonetheless, a certain drama is unfolding within VA over the DBQ forms.

According to the transcript, Under Secretary Allison Hickey is a big proponent of the DBQ, check a box, system. However, Devine and other attendees indicate the DBQ system is not supported by the Board of Veterans Appeals or the CAVC.

Here is an excerpt of that portion of the transcript:

CROSS: You stated the concern just a little bit differently than I would.


CROSS: DBQs were a process of a competition that was held sometime back, and a staff member at Pittsburgh RO won, made the suggestion and said why can’t we just write down a check-the-box kind of thing, exactly what we need to do the rating? That was, seemed to be and I think was a good idea, and they won the competition.

And then we faced the issue of making the DBQs in a way that is understandable and can be interpreted reasonably after it’s filled out. General Hickey appropriately wants more check-the- box/less text. The Board of Veterans’ Appeals over across town, they want all text. They said how did you arrive at that checkmark? What did you do? What was your, how do we know what was done on the exam, you know, they go through that kind of point.

They have not–in conversations with me have been quite skeptical of these, and I think they have been with General Hickey as well.

They have to change periodically, and we wanted a public setting DBQ that the public could use. The challenge with that, when we have to make a change, it has to go to OMB. OMB turns it around in a little bit over a year. So if we find a mistake on a DBQ, we’re going to have to get it changed or find some other way to deal with it because OMB is not going to get to it tomorrow, and we eventually had some that were over a year in getting OMB to change.

What am I missing? I’m inclined to try and make them work right now, and if we started off in some other direction right now, I think we’d just be, you know, sinking.

CHAIRMAN SCOTT: Okay. Is there anything that we can say, though, that might support the inclination to make them work, that might make them work better, or should we just let it alone this time? We have, in the past, our reports have been generally supportive of DBQs.

CROSS: That’s a good way to say it this time.

DEVINE: Can I just offer this caveat though because I hate to throw water on the party here?

CROSS: Which way are you throwing the water though?

DEVINE: Just kind of in the middle. Maybe on the recorder so they don’t quite get all of what I’m about to say. The Court, however, does not like DBQs, and the Court has stated so in an opinion that was rendered in March where the Chief Judge said in a footnote that basically his opinion is that the Secretary should scrap them and start completely all over.


DEVINE: That’s basically his opinion, and you don’t need legalese to interpret. It was fairly straightforward. The reason is, and Dr. Cross was very clear earlier, is they–it’s just like your fifth grade algebra where you had to do the test and do all your answers, but you had to turn in the other two papers to show your work because the teachers used to grade that as well.

And that’s what the Court and the Board both need and that’s what they do not get, and if this trend continues, there is a case wending its way through the Court system regarding the DBQs that may call into question an awful lot of things. So it’s, you know, how to improve is, let’s make sure that the Board and the Court both can accept the documentation of this examination as legitimate because if we’re going four and five years down the pathway and the Court says just one time–this is how we give the names to all our cases.

You hear Mitchell. You hear Nehmer. It’s all these guys and people who have successfully done legal cases.

CROSS: DeLuca.

DEVINE: DeLuca. We don’t want Smith all the way on down there that’s going to change our world without us either having preparations or another way to do our documentation.

EPLEY: You know if the DBQs, if it is required that they be amended to not only allow but to mandate more narrative, they still offer a benefit to the examiner in that they take you through the items that you need, the rater needs to see to make a rating. So it seems like you can do a hybrid and still get value out of it.

DEVINE: This is an absolutely great document for the raters, absolutely wonderful–


DEVINE: –beautiful kind of thing. This is a two-prong effort.

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  1. I am beginning to get it. I have been fighting the VA for near 20 years. I have never had a hearing. In 1999, without notifying I was given 30%. The VA has either lost, or ? All correspondence since. They say, a year ago, I made it to D.C. From all I have been hearing, I will be dead before a decision. What do we tell our children about honor, responsibility, trust, and how do we tell our kids that serving is honorable? The VA is a mess. Our soldiers truly have no idea what they are in for if they come out damaged. Their new war may last a lifetime. For what? God Bless the soldiers, and perhaps God, you can give the VA a heart.

    1. John if you’re disability is for ptsd, you may want to contact Kenneth carpenter out of Topeka Kansas. He is listed as carpenter charter, make sure you ask him to try to get your back pay to when you first applied for your disability. Hope this helps, if we don’t help each other, no one else will. Pass the word! .

  2. Hey folks, this may, or may not, have anything to do with the VA- or does it? In a Stars and Stripes article, published 1 july 2015, it looks like the older, less expensive, F-16 out performed and out maneuvered the new F-35 overbudget and more expensive aircraft during testing at Edwards AFB in California. How’s that for your tax dollars at work?
    Someone on here once asked, where, and to what, is the $$$$ going to the VA is allocated?
    I’m not sure, but something is definitely fishy here. How much has the VA, which is part of the DOD, spent since they were allocated BILLIONS of DOLLARS just late last year?
    When will the taxpayers finally demand the VA AND DOD be audited? It seems the VA and DOD do anything they want. Even moving money to other “areas” Congress did NOT approve of, YET!!!!

  3. I don’t know of any local or county state court or federal one that goes in favor of an individual. A corporation or agency will get trials with one another, way before an individual will. Our individual rights are gone. The attitude with our due process is beyond cavalier. One can start at the bottom of any legal venue and the upper courts or judges will rubber stamp the previous rulings.
    Nothing is made easy for the vet. Just make it easier for the system.while the system makes it harder for our vets. It works the same way for civilians. It’s as if the government is a person with a huge appetite for taxpayer money along with all other government agencies.
    The civil servants including judges forgot they are your employees and not the other way around. The VA is no different than any other governmental agency but those that work for all of us, getting paid by federal tax dollars, have forgotten their job description. They need a reminder as to what their job really is about. and they need to be held responsible and accountable to all of you, and that includes judges and dod/va legal personnel too..

  4. As I heard an expert author explain on the radio, all you have to do is start reading the Consitution, and you will see that it was created for the people’s knowledge because the government will do anything, even if it is illegal, to scew the people of their country over for their benefit and power over you. The Constitution acts as a warning for the people of our (once new) country written by our founders who have seen the corrupt government of England walk all over them, and who wanted none of that here.
    It’s too bad the way things are now. The Constution is nothing more but an old parchment under glass in Philadelphia. Nobody knows what the hell it says because the government school system here in the U.S. and their teachers have to thread lightly, or not at all, in explaining this.The government wwon’t let them expound.
    So, the VA, part of the gov., is always getting away with what ever they want to pull on you. They are beyond the point of being embarassed – they could care less if you notice – because they have the power and the money to do whatever they please, and are aware of that. They work with Congress and the entire gov. hand in hand, and put on a “show” for us all. The gov is so discusting to everyone these days, they are already for a potential civil uprising where they have volumous holding caverans underground to put masses of people in. That’s what they spend money on without telling you or me or the guy next door. Real transparency. Yea, right.

    1. You are correct on many points.
      My wish is for people to read the following; the Declaration of Independence, the Constitution of the United States of America and “Common Sense”, by Thomas Paine. It is widely known by ‘Students of History’ this book was the principal catalyst that sparked our first “Revolutionary War” against Great Britain.
      What is going on today IS in parallel with the “utmost cruelty” which was placed upon us, as it was over two centuries ago, by a government NOT “of the people, by the people and for the people.”

      I hope, as did our ancestors, we continue this ‘experiment’, as Dr. Franklin called it, as a “Constitutional Republic” it was designed to be!

  5. Why did he laugh? Probably the same reason SCOTUS laughed at the law two times last week. THE ACTUAL REASON FOR THIS IS THAT NO ONE IN POWER THESE DAYS RESPECTS ANYONE ELSE IN POWER. THEY ALL THINK THEY ARE KING OF THE WORLD.

    1. Your right on target, they sure didn’t listen to John f Kennedy, he’s turning in his grave the way these people are hurting not only veterans, but the whole country, can you imagine what the children are thinking when they see how people are treating each other, why should they give two cents about others when they see those in power doing as they please and do so with impunity. Way to go! Va. Your ignorance is giving our kids the wrong impression as to the way American’s care for those who can’t care for themselves. You know who you are and so does God, let’s see if you can bullshit your way out of that one!.

  6. “LAUGH AT A JUDGE!” If anyone on here, or anywhere else for that matter, laughed at a judge, we would still be sitting in a jail cell. No bond either. You wouldn’t be able to get out until you apologized. And maybe not even then!

    It looks like Linda Holliday will replace Gibson as the new interim VA OIG head person. It seems I heard that name before. Can anyone help me remember?

  7. In the 10 years my husband’s case has been in process I have yet to figure out what the VBA is doing. The veterans are treated like criminals and appeals are never processed in favor of veterans why vague denials can be used. I am so angry with the VA. 10 years and we have 60%. My husband has malignant hypertension, hyperaldosteronism, he’s had colon cancer, kidney cancer, now has kidney cancer mets to the brain, tinnitus, dermatitis from AO on his feet, major depressive disorder and severe PTSD. He has also been afflicted with TIA’s. I’m just not sure what else he needs to go through to be awarded full benefits. I have been trying g to get his Medical records from his time in Vietnam to no avail. Shameful. We just had a Skype BVA hearing so I continue to pray. BTW. I did find new articles published in 2014 showing that dioxin kills kidney cells thereby causing cancer in the light Eric and kidney. I will post these if anyone wants them

  8. The question: “Why did a VA Advisory (Council) Laugh at Chief Judge Kasold DBQ Critique?”

    The answer: Because they can, with all the arrogance of a Federal employee knowing no one can, or will, do anything about it.

    Soon there will be no C & P examiners, just computers checking off boxes. Many raters ignore the the narrative evidence, caretakers’ diagnosis, treatment and base their decision solely on the C & P – even though they are supposed to take the totality of the evidence into consideration. I have seen it happen too many times.

  9. Nice to know Allison Hickey is all in favor of checking a box and removing a veterans civil rights as in not only 2nd Amendment, the right to vote, testify in court, drive, handle their financial affairs, etc. An Oath Keeper that woman is not.

    The VA laughs at anyone they want and why not? No one has been able to stop the minions. Indy VBA Director lied to Rep Lee Zeldins office on my husbands case, ignored law, etc. No repercussion…so far. Zeldin’s office is too meek about it to do anything meaningful and he is on the veterans affairs committee.

    So, why not laugh at a judge. That judge is going to do squat about it.

  10. if this is the case they should be able to clear all of the back log in two days, eny mi ne mo,, just check any box and send it on its way. Dirty shame. These people are playing God at our expense, finding another way to hide the real facts on how they determined what box to mark. The above remark will happen by some employee in a hurry to say look I did a thousand today, WHERE’s MY BONUS !, Great job how did you do it so fast and if they ask how did you decide to check that box, what you going to say when they want do an audit. Oh I sent the records to saint Louis where the fire is still burning, they may still be there in ashes. Don’t worry they will never find any evidence of wrong doing. Good Job BOB your Bonus is coming. By the way do you have any friends that know how to check a box, we need more employees like you. Keep up the good work.

    1. The truth is, no one is even actually checking boxes, not even at random. Worse, they don’t even have a computer checking boxes. The VA skips any real process by sending out Denial letters, Request for More Information, and if you persist, or maybe, years later, you might get a rejection letter. At best they send out a letter stating, “We apologize for the delay. We are still processing your claim.” The VA laughs at anyone they feel like laughing at. This is because they got by with using anger and intimidation on Congress and other investigators. They truly see their jobs as a big funny game with no rules, and no consequences for even the worst incompetence, so they are going to laugh at judges and everyone else. There’s a name for VA executives, and regular staff, who don’t follow this path. They’re called ‘whistleblowers’. They get fired and the big shots remain, laughing about that too.

  11. More of the same from the VA, why would we expect anything different given their pattern(s) of behavior?

  12. VA Danny Devine and team were not only disrespectful to the Judge but are thumbing their noses at the very Court and acceptable procedures.
    What interests me is what exactly are they so afraid of that’s moving through the Court System? Sounds like they are only doing this to PREVENT “X” from taking place, whatever that “X” may be.
    I quote Danny Devine: “…And that’s what the Court and the Board both need and that’s what they do not get, and if this trend continues, there is a case wending its way through the Court system regarding the DBQs that may call into question an awful lot of things…”

    Got my attention! What’s “an awful lot of things”? Also, these VA people talk to the judge like they of Elementary Education at best…sure seems to me they are trying to push these “check boxed forms” to do a couple things:
    1. Make things “easier” on the Rater.
    2. Not be required to place ANY dialog explaining WHY they check said box.
    3. Veteran gets screwed seems to be the ultimate end-game.
    4. The Judge was calling them out on this because even the BVA does not want this “contest winning form”…what’s next, Veterans given a box of Crayons and rated based upon which colors he chooses to use and not use?
    5. This is the SAME Danny Devine talked about in yesterday’s topic that has NOT done a DAMN THING with a 2012 VOW Act? Who has the 5th Grade Education in this story?

    I find it disturbing that the VA just took it upon themselves to change to a check-box form to make things even easier to deny Veterans while KNOWING the BVA does not even ACCEPT said Forms, which appears to me the VA is attempting to toss additional cogs in the Appeal Process…kind of a boomerang effect…form not accepted or used by BVA…Case goes back in PILE or Que…wait another handful of years and hope the Veteran has died…my 2 cents.

    Nowhere was there dialog indicating where this would ever benefit The Veteran…no, this is to make already lackluster Rater Job even more Lackluster…and easier. Do they get a special kind of bonus if the Veteran does not fit into any given box to check on form?

    The VA is making a mockery of the Court System…which fills me with the urge to defecate and throw like a monkey.

    1. I fought back and have 4 active suits in the Hawaii US Dist. Court – 2 for PIHCS violations of the Privacy Act, a NIED/FTCA, and a Bivens – CV14-00547LEK-BMK; CV15-00195, 208 and 246 LEK-KSC. Also, 2 investigations by OCR for the HIPAA (Privacy Act) violations. Since I am only doing as Benjamin advocates and asking for injunction to place our appeals into BVA, forget the money, I have real hope of actually prevailing.

      The HIPAA suit is a sure thing – VA Honolulu sent 7 (!) other vets’ files to us when we asked for some health info (ROI). And so is Privacy suit 2 – HID CV15-00246 – they are trying to withhold documents proving VHA Honolulu (PIHCS) doesn’t know how to handle a BVA substantive appeal.

      1. Did you find out who the other veterans were, they should know and also file,the va sure messed up again big time, wish you the best, its good someone is listening to you.

    2. With the little I know about DBQs, they seem to be better than the old way of some hack writing a few things, forgetting many and calling it an exam. Then a rater has to read through that nonsense and try pick out whether certain things were written that meet the laws requirements for disability. Having a DBQ would suggest most exams are now standardized, or more so than before. If an eaminer can read and check a box, the exam should be the same as another examiner. It would speed up the claims process since if the boxes checked meet the laws requirements, there is nothing else to interpret and the rating should happen. If X Y and Z boxes are checked, the law is met and the veteran is disabled. Under the old way, if the examiner forgets to ask about X and Y, will the vet be rated disabled? Will the rater go into the treatment record and see X and Y are also being treated? I can understand judges needing a narrative, so why not improve on the process and require that for each box checked? This all presumed the examiner would be diligent in performing the exam and filling out the form, or in using the form at all.
      It also is a clear record of what the examiner checked. If I see he didnt check X and Y, I can provide my treatment records showing I have been treated for them.
      What is the VA afraid of with those cases? They are afraid their whole new process will get overturned, and they will be scrambling to come up with a new one. Why reinvent the wheel? What does social security use for their disability process?

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