[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ADJUDICATING VA'S MOST COMPLEX DISABILITY
CLAIMS: ENSURING
QUALITY, ACCURACY AND CONSISTENCY ON
COMPLICATED ISSUES
====================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Wednesday December 4, 2013
__________
Serial No. 113-47
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Chairman
DOUG LAMOBORN, Colorado MICHAEL H. MICHAUD, Maine, Ranking
GUS M. BILIRAKIS, Florida, Member
DAVID P. ROE, Tennessee CORRINE BROWN, Florida
JEFF DENHAM, California MARK TAKANO, California
BILL FLORES, Texas JULIA BROWNLEY, California
JON RUNYAN, New Jersey DINA TITUS, Nevada
DAN BENISHEK, Michigan ANN KIRKPATRICK, Arizona
TIM HUELSKAMP, Kansas RAUL RUIZ, California
MARK E. AMODEI, Nevada GLORIA NEGRETE MCLEOD, California
MIKE COFFMAN, Colorado ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio BETO O'ROURKE, Texas
PAUL COOK, California TIMOTHY J. WALZ, Minnesota
JACKIE WALORSKI, Indiana
Jon Towers, Staff Director
______
Subcommittee on Disability Assistance and Memorial Affairs
JON RUNYAN, New Jersey, Chairman
DOUG LAMBORN, Colorado DINA TITUS, Nevada, Ranking
GUS M. BILIRAKIS, Florida Minority Member
MARK AMODEI, Nevada BETO O'ROURKE, Texas
PAUL COOK, California RAUL RUIZ, California
GLORIA NEGRETE MCLEOD, California
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
----------
Page
December 4, 2013
Adjudicating VA'S Most Complex Disability Claims: Ensuring
Quality, Accuracy And Consistency On Complicated Issues 1
OPENING STATEMENT
Hon. Jon Runyan, Chairman 1
Prepared Statement........................................... 5
Hon. Dina Titus, Ranking Minority Member 3
Prepared Statement........................................... 7
WITNESSES
YN1 Lauren Price, USN (Ret.) Public Affairs Representative
Veteran Warriors
Oral Statement............................................... 8
Prepared Statement........................................... 10
Accompanied by:
MMCS James Price, USN (Ret.) Senior Logistics Chief Veteran
Warrantors
Ms. Bettye McNutt, Surviving Spouse
Oral Statement............................................... 14
Prepared Statement........................................... 16
Accompanied by:..............................................
Glenn R. Bergmann, Esquire, Bergmann & Moore, LLC
Mr. Sherman Gillums, Associate Executive Director for Veterans
Benefits Paralyzed Veterans of America
Oral Statement............................................... 26
Prepared Statement........................................... 29
Ronald Abrams, Esquire, Joint Executive Director National
Veterans Legal Services Program
Oral Statement............................................... 32
Prepared Statement........................................... 34
Mr. Zach Hearn, Deputy Director for Claims, The American Legion
Oral Statement............................................... 41
Prepared Statement........................................... 43
Mr. Tom Murphy, Director Compensation Service Veterans Benefits
Administration, U.S. Department of Veterans Affairs
Oral Statement............................................... 53
Prepared Statement........................................... 55
Accompanied by:
Ms. Edna MacDonald, Director of the Nashville Regional Office
Veterans Benefits Administration, U.S. Department of
Veterans Affairs
Ms. Sondra F. McCauley, Deputy Assistant Inspector General for
Audits and Evaluations Office of Inspector General, U.S.
Department of Veterans Affairs
Oral Statement............................................... 62
Prepared Statement........................................... 63
Accompanied by:
Mr. Brent Arronte, Director of San Diego Benefits Inspections
Division Office of Inspector General, U.S. Department of
Veterans Affairs
APPENDIX
Statement by Jeffrey C. Hall, Disabled American Veterans......... 81
Statement by Patricia Driscoll, The Armed Forces Foundation...... 87
Tragedy Assistance Program for Survivors......................... 88
Statement by Ms. Sulin Schafer, Spouse of Veteran Errick Schafer. 92
Veterans and Military Families for Progress...................... 93
00
ADJUDICATING VA'S MOST COMPLEX DISABILITY CLAIMS: ENSURING QUALITY,
ACCURACY AND CONSISTENCY ON COMPLICATED ISSUES
----------
Wednesday, December 4, 2013
House of Representatives
Subcommittee on Disability Assistance and Memorial
Affairs
Committee on Veterans' Affairs
Washington, D.C.
The subcommittee met, pursuant to notice, at 3:04 p.m., in
Room 334, Cannon House Office Building, Hon. Jon Runyan
[chairman of the subcommittee] presiding.
OPENING STATEMENT OF CHAIRMAN JON RUNYAN
Present:Representatives Runyan, Lamborn, Bilirakis, Titus,
O'Rourke, and Negrete-McLeod.
Also Present: Representatives Miller, and Michaud.
Mr. Runyan. Good afternoon, everybody, and welcome. This
oversight committee of the Subcommittee on Disability
Assistance and Memorial Affairs will now come to order.
Throughout the past year, Members of the subcommittee as
well as the full committee have heard from VA representatives
on various initiatives that have been instituted in order to
fulfill the secretary's goal on disability benefits claims for
2015.
VBA implemented national initiatives within its regional
offices including challenge training, quality review teams,
skill certification testing, and simplified notification letter
and fully developed claims.
VBA also rolled out new technologies in the form of the
Veterans Benefits Management System and several other
electronic projects, as well as new processing models featuring
segmented lanes and cross-functional teams.
All along VBA indicated that significant support and
training from VBA central office would be critical in this
rollout.
On top of these challenges, in April of 2013, VA announced
that all cases pending in excess of one year would be completed
by the conclusion of fiscal year 2013.
Based on this new push, VA instituted many months of
mandatory overtime for its employees. While there are general
concerns on whether VA employees were able to issue decisions
of high quality within the expedited time frame, there are also
concerns that many of these oldest claims, in fact, were highly
complex.
Regional office employees have previously reported that
claims processors would pass over difficult cases and would
routinely decide to call easy claims first in order to meet the
production goals and maximize workload and workload credit
parameters.
Thus, it would stand to reason that many of these two-year-
old and one-year-old claims decided in the past quarter
constitute a challenging workload.
And today we will hear about a focused issue which ties
into the VA's various initiatives and which highlights the
clear necessity of uniform central office support and thorough
employee training.
Today's focus is upon the complex claims that are routed to
the special ops lanes at the regional office to include large
multi-issue claims as well as traumatic brain injury,
posttraumatic stress, military sexual trauma, and claims
involving special monthly compensation just to name a few.
While VA reported in November of this year that complex
claims which take an excessive time to require special handling
or only constitute ten percent of VA's workload, these claims
require highly competent, educated, and experienced attention.
Importantly, decisions rendered in these complex claims
often have tremendous effect on the lives of these veterans.
Within VA's strategic plan refresh for fiscal year 2011
through fiscal year 2015, the Department of Veterans Affairs
noted no fewer than 30 times that VA's strategic plan is
results driven, and I quote, ``We will be measured by our
accomplishments and not our promises.''
So today we want to hear accomplishments, what is going on
in this high stakes, highly specialized claims processing
environment, how has employee training focused upon the
development of these issues, and what is working and what is
not working.
Also, we want to hear about the focused investigations of
the VA's Office of Inspector General who look at specific
complicated claims on an annual basis within the regional
office, reviews of VA OIG reports, as well as the recent
veterans' testimonials are alarming.
In the past four years, at least 19 regional offices have
been inspected by the OIG on a second instance. Of those, more
than half saw a decrease in the claims processing accuracy with
respect to traumatic brain injuries. This means that the
reports indicate that VA's OIG's second visit to the ten
regional offices evidenced more errors than the initial visit
did.
With respect to temporary 100 percent disabled claims,
while improvements have been made on half of the offices,
inspectors still could not process 50 percent of these claims
correctly on their second inspection. There is still no other
word for this but unacceptable.
At this time, I would like to welcome our witnesses. We
will have three panels here today. Currently seated are the
participants of panel one. They include Ms. Lauren Price,
United States Navy retired, accompanied by Mr. James Price, who
is also United States Navy retired, who are here on behalf of
Veteran Warriors.
To Mr. Price's left sits surviving spouse, Ms. Bettye
McNutt, accompanied by Mr. Glenn Bergmann, partner at Bergmann
Moore, LLC.
After the conclusion of panel one, we will hear from Mr.
Sherman Gillums, the associate director for the Veterans
Benefits with Paralyzed Veterans of America; Mr. Ronald Abrams,
joint executive director for the National Veterans Legal
Service Program; and Mr. Zach Hearn, deputy director for Claims
with The American Legion.
Finally, the third panel, we will hear from Mr. Tom Murphy,
director of Compensation Services with the Veterans Benefits
Administration, accompanied by Ms. Edna MacDonald, director of
the National Regional Office.
The third panel will also host Ms. Sondra McCauley, deputy
assistant inspector general for Audits and Evaluations with
Office of the Inspector General, U.S. Department of Veterans
Affairs, who will be accompanied by Mr. Brett Arronte, director
of San Diego Benefits Inspections Division.
Additionally, the hearing record will include written
statements from Disabled American Veterans, the Tragedy
Assistance Program for Survivors, and Ms. Sulin Schafer, wife
of air force veteran, Errick Schafer.
With those instructions complete, I thank you all for being
here today.
I now yield to the ranking member for her opening
statement.
OPENING STATEMENT OF THE HON. DINA TITUS, Ranking Minority
Member
Ms. Titus. Well, thank you, Mr. Chairman, and thank you for
holding this important hearing.
I would also like to thank the witnesses you mentioned who
are here today for their time and trouble to come and share
information with us.
First, I want to applaud the VA for reducing the benefits
backlog by 34 percent since March of 2013. We hope that the VA
can maintain this momentum and we are optimistic. We want to
end this decades long backlog and we are moving in that
direction.
Our numbers indeed show that the VA is on track to reach
the secretary's goal by 2015, so I would ask you to relay a
message to the people who work for the VA and tell them thank
you for their efforts and to please keep up the good work.
As the VBA continues to work through this transformation,
it is very important that we are working together towards
solutions that will improve the processes of providing benefits
to veterans, benefits that they have earned, and we want them
to be provided in the most timely and efficient manner
possible.
So we need to be forward looking so we can address the next
issues rather than just the problems from the past. We want to
be able to anticipate what is coming down the road so we do not
create any new backlog issues.
Earlier this year, our subcommittee worked on a package of
bills that are forward-looking and I believe would help the VA
provide better services to our veterans. The House has passed
many of these measures. They were bipartisan measures, and I
hope that the Senate will soon take them up and send them on to
the President for his signature.
One of the bills specifically was my bill, Pay As You Rate,
which I think is appropriate to today's topic as we look at
complex cases that have more than one issue involved with them.
This bill would require the VA to pay veterans as each of their
individual medical conditions is completed.
Such an approach would result in veterans throughout
southern Nevada--my district--and the country in receiving
their payments in a more timely manner rather than waiting
until the entire case is adjudicated which can be very complex.
As we will hear, they can get pieces done as they go along.
Additionally, it seems that such an approach would offer
the VA better workload management options where some of the
best VA regional offices could specialize on those medical
conditions which have proven to be more challenging and more
complex such as military sexual trauma and traumatic brain
injury.
My colleague, Ranking Member Michaud, has introduced a bill
that would provide veterans with better decisions in a timely
manner by doing just that and look forward to seeing that move
forward.
I am proud to say that we seem to be making progress that
is reducing the backlog, but there is still some clunkiness in
the operations and in the effectiveness or lack of
effectiveness.
For example, I am concerned that the VA may be
oversimplifying some of the more complicated and complex
medical conditions. The VA has essentially broken down the
coding system with nearly a thousand different medical
conditions and endless variables into just three lanes, easy,
medium, and hard.
That seems a pretty simplified way of looking at all of
these different variables. And when you define complexity as
just the number of medical conditions in a claim, I am not sure
that is an adequate way of looking at it.
It is important to note that the number of conditions does
not necessarily dictate the complexity of the entire claim.
This method of evaluating complexity made sense in a paper
processing world. But as we look forward now to best practices,
I believe complexities should be measured not just by the
number of conditions but rather by the complexity of evaluating
and paying for the medical conditions that are under
consideration.
It is important that the VA look within the current system
across all 56 VA regional offices to determine what are best
practices for assigning that complicated work. I believe that
the VBA can work with VBMS to broker work from one station to
another to ensure that the best employees are working on the
most challenging cases.
This subcommittee--and I thank the chairman for his work on
this and for his cooperativeness with our side of the aisle--
and the VA share a common goal and that is ensuring that our
veterans receive the best benefits in a timely fashion.
So I think we can continue to work together as a committee
with the VA to develop these tools and best practices. And I
look forward to hearing your testimony and seeing what options
may be available to us as we move forward.
With that, I yield back. Thank you, Mr. Chairman.
Mr. Runyan. Thank you, Ms. Titus.
PREPARED STATEMENT OF THE HON. JON RUNYAN, Chairman
``Adjudicating VA's Most Complex Disability Claims:
Ensuring Quality, Accuracy and
Consistency on Complicated Issues.''
December 4, 2013
Good afternoon and welcome everyone. This oversight hearing
of the Subcommittee on Disability Assistance and Memorial
Affairs will now come to order.
Throughout the past year, the Members of this Subcommittee,
as well as the Full Committee, have heard from VA
representatives on various initiatives that have been
instituted in order to fulfill the Secretary's goal on
disability benefits claims for 2015.
VBA implemented national initiatives within its regional
offices, to including Challenge Training, Quality Review Teams,
Skills Certification Testing, Simplified Notification Letter,
and Fully Developed Claims.
VBA also rolled out new technologies in the form of the
Veteran Benefits Management System and several other electronic
projects, as well as a new processing model featuring segmented
lanes and cross-functional teams. All along, VBA indicated that
significant support and training from VBA central office would
be critical in this rollout.
On top of these changes, in April of 2013, VA announced
that all cases pending in excess of one year would be completed
by the conclusion of Fiscal Year 2013.
Based upon this new push, VA instituted many months of
mandatory overtime for its employees.
While there are general concerns on whether VBA employees
were able to issue decisions of high-quality within the
expedited time-frame, there are also concerns that many of
these ``oldest-claims'' were, in fact, highly complex.
Regional Office employees have previously reported that
claims processors would pass over difficult cases, and would
routinely decide so called ``easy'' claims first in order to
meet production goals and maximize workload credit parameters.
Thus, it would stand to reason that many of these two-year old
and one-year old claims, decided in the past quarter,
constituted a challenging workload.
And today we will hear about a focused issue, which ties
into the VA's various initiatives, and which highlights the
clear necessity of uniform Central Office support and thorough
employee training . . . today's focus is upon the complex
claims that are routed to the special-ops lanes at the Regional
Offices, to include large multi-issue claims, as well as
traumatic brain injury, post-traumatic stress, military sexual
trauma, and claims involving special monthly compensation, just
to name a few.
While VA reported in November of this year that complex
claims, which take extensive time or require special handling,
only constitute 10% of VA's workload, these claims require
highly competent, educated, and experienced attention.
Importantly, decisions rendered in complex claims often have a
tremendous effect upon the lives of these veterans.
Within VA's ``Strategic Plan Refresh'' for Fiscal Year 2011
through Fiscal Year 2105, the Department of Veterans Affairs
noted no fewer than THIRTY times that VA's strategic plan is
``results driven,'' and I quote, ``We will be measured by our
accomplishments, not by our promises.''
So today, we want to hear accomplishments----what is going
on in this high-stakes, highly specialized, claims processing
environment? How has employee training focused upon the
development of these issues? What is working? What is not
working?
Also, we want to hear about the focused investigations of
the VA Office of Inspector General, who look at specific
complicated claims on an annual basis within the Regional
Offices. Reviews of VA OIG reports, as well as recent veteran
testimonials, are alarming.
In the past four years, at least nineteen Regional Offices
have been inspected by OIG on a second instance. Of those, more
than half saw a decrease in claim processing accuracy with
respect to Traumatic Brain Injuries . . . This means that the
reports indicate that VA OIG's second visit to ten Regional
Offices evidenced more errors than the initial visit.
With respect to temporary one-hundred percent disability
claims, while improvements were made, half of the offices
inspected still could not process 50% of these claims correctly
on their second inspection. There is no other word for this,
but simply ``unacceptable.''
At this time, I would like to welcome our witnesses. We
will have three panels today.
Currently seated include the participants in Panel One.
They include Mrs. Lauren Price, United States Navy, Retired,
accompanied by Mr. James Price, also United States Navy,
Retired, who are here on behalf of ``Veteran Warriors.''
To Mr. Price's left sits surviving spouse Ms. Bettye
McNutt, accompanied by Mr. Glenn R. Bergmann, Partner at
Bergmann & Moore, LLC.
After the conclusion of Panel One, we will hear from Mr.
Sherman Gillums, Associate Executive Director for Veterans
Benefits with Paralyzed Veterans of America; Mr. Ronald Abrams,
Joint Executive Director for the National Veterans Legal
Services Program, and Mr. Zach Hearn Deputy Director for Claims
with The American Legion.
Finally, in the third Panel we will hear from Mr. Tom
Murphy, Director, Compensation Service, with the Veterans
Benefits Administration, accompanied by Ms. Edna MacDonald,
Director of the Nashville Regional Office.
The third Panel will also host Ms. Sondra F. McCauley,
Deputy Assistant Inspector General for Audits and Evaluations
with the Office of Inspector General, U.S. Department of
Veterans Affairs, who will be accompanied by Mr. Brent Arronte,
Director of San Diego Benefits Inspections Division.
Additionally, the hearing record will include written
statements from Disabled American Veterans, the Tragedy
Assistance Program for Survivors, the Armed Forces Foundation,
and Ms. Sulin Schafer, wife of Air Force veteran Errick
Schafer.
With those introductions complete, I thank you all for
being with us today and I now yield to our Ranking Member for
her opening statement.
PREPARED STATEMENT OF DINA TITUS, Ranking Minority Member
Thank you, Mr. Chairman, for holding a hearing on this very
important topic. I also want to thank the witnesses for their
attendance this morning.
First, I would like to applaud the VA for reducing the
benefits backlog by 34 percent since March 2013. We hope that
the VA can maintain their momentum and end the decades old
backlog. Our numbers show that you are on pace to indeed reach
the Secretary's goal by 2015. I ask you to relay this message
to the workforce - keep up the good work.
As VBA continues to work through its transformation, it is
important that we are working towards solutions that will
improve the processes of providing veterans the benefits they
have earned, in the most timely and efficient manner possible.
We should be forward thinking to address the next issues, not
just the problems from the past.
Earlier this year our subcommittee worked on a package of
bills that are forward looking and would help the VA provide
better services to veterans. The House has passed many of these
measures, and I hope the Senate will soon send them to the
President for his signature.
Specifically, my bill, the Pay As You Rate Act, would
require the VA to pay veterans as each of their individual
medical conditions is completed. Such an approach would result
in veterans throughout Southern Nevada receiving payments in a
timelier manner for their simple medical conditions.
Additionally, it seems that such an approach would offer
the VA better workload management options where some of the
best VA Regional Offices could specialize on those medical
conditions that have proven to be more challenging such as
Military Sexual Trauma and Traumatic Brain Injury. My
colleague, Ranking Member Michaud, introduced a bill that would
provide veterans with better decisions in a timelier manner by
doing just this.
While I am proud to say we finally seem to have a system
that is reducing the backlog, it is still clunky in its
operational effectiveness.
I am concerned that the VA may be oversimplifying some of
the more complicated medical conditions. The VA has essentially
broken down a coding system with nearly a thousand medical
conditions and endless variables into three lanes--easy,
medium, and hard. Complexity is usually defined at the VA as
the number of medical conditions in a claim.
It is important to note however, that the number of
conditions does not necessary dictate the complexity of the
entire claim. This method of evaluating complexity made sense
in the paper processing world. As we look for best practices, I
believe complexity should not be measured by the number of
medical conditions in a claim but rather it should be measured
by the complexity of evaluating and paying for specific medical
conditions.
It is important that the VA look within the current system,
across the 56 VA Regional Offices to identify best practices
for assigning complicated work. With VBMS, the VBA can
instantly broker work from one station to another to ensure the
best employees are working on the most challenging cases.
Our Subcommittee and the VA share a common goal - ensuring
that veterans receive the benefits they have received in a
timely fashion. I hope we can work together to find the best
ways to utilize VBMS and other tools to meet this goal.
Today's hearing will explore these options, and I hope the
VA will continue to work with us to implement many of our
bipartisan ideas.
I yield back.
And with that, I ask unanimous consent that Chairman Miller
and Ranking Member Michaud be able to participate in our
hearing today. So hearing no objection, so ordered.
At this time, I would welcome our first panel to the table.
Your complete and written statements will be entered into the
hearing record.
Mr. and Mrs. Price, thank you for your service and for
being here this afternoon.
Ms. Price, you are now recognized for five minutes for your
oral testimony.
ORAL STATEMENT OF LAUREN PRICE
Ms. Price. Thank you, Chairman.
Chairman Runyan, Ranking Member Titus, members of the
panel, Veteran Warriors asked me to express their gratitude for
inviting ourselves as delegates to represent their views on the
VA's handling of complex claims and the challenges that are
faced with those.
Most of this panel has no idea who Veteran Warriors is. It
is exactly what it sounds like. We are just a bunch of
veterans, but we are specialists that come from a wide variety
of fields and professions and bring in some cases decades of
experience to the table and to the team. Our purpose is to deal
with not just complex claims but with all issues relating to
the VA's functions.
In particular, I am a combat vet. I served in the navy for
seven years before I was medically retired. I contracted a
terminal lung disease in Iraq. I also crushed both of my hands,
parts of my hands and had to have my hands rebuilt.
I am a hundred percent disabled. I can no longer work and
my life expectancy now is down probably less than two years. My
husband is my primary caregiver. I do not need anything from
the VA any longer.
My complicated claim took four years to adjudicate. Not
once in that four years did I ever present one single piece of
new evidence. The entire claim was submitted fully developed in
its entirety before I was even discharged from the navy.
I am here not to represent my claim or my issues. My
husband and I are here to make sure that this panel and that
everyone that will listen to us will understand that cases like
my own and unfortunately like Mrs. McNutt's are not isolated.
I personally have dealt with at this time almost 1,000
cases just in the last six months of veterans and their spouses
and children who are dealing with complex claims that are being
denied over and over and over again or being low-balled and
zero rated.
We are not a VSO. We are not a veteran service organization
by any means. Our sole purpose is to work to try to get
resolution to the manner in which the VA is conducting
business.
However, we are not going to sit here and lie to anybody.
We are going to make sure that everyone understands that we do
not agree with giving kudos to the VA. Over the last 12 years,
the majority of the veterans that have come home and come into
the system have filed complex claims. This was not a secret to
the VA. They were well aware of what was coming home.
You have a demographic of veterans that have spent multiple
deployments, various hostile environments, come home. They are
better educated now than they ever have been in history. They
are also equipped with technology available that at a moment's
notice, they can get information to virtually any question they
have regarding their benefits.
The VA pictures this as a disaster waiting to happen
because these are the veterans that are filing the complex
claims.
On November 7th, Secretary Shinseki took credit for
reducing the backlog by one-third since March. We caution this
panel and everyone involved with VA claims to don't take that
as gospel because there is a big part of the claims processing
that they are not telling people.
The most insignificant type of claim is not a medical
claim. It is called a dependent status change. You get married.
You have a child. You get divorced. Your child ages out. It is
one document with one attachment, your marriage certificate,
your divorce decree, what have you.
Those go into claims. They are adjudicated right alongside
someone who has a terminal lung disease or Agent Orange
illnesses. Unfortunately, those claims, and we have been able
to prove it to this subcommittee, those are the claims that
they are closing and calling closed and adjudicated. And,
unfortunately, that does help their numbers come down.
We ask that every time that you get a new report on the
VA's numbers you look at it cautiously. You question the data.
They are not sending in screen shots of their work product.
They are creating reports. There is almost no transparency. No
one in this room can just sit down and go look at all the
numbers that the VA is working on that are being generated on a
daily basis.
Congress has never denied the VA a single penny for doing
its job. The current budget, over $54 billion is being paid out
to veterans in direct benefits. The balance of their budget
that they receive right now is for administration of their
business, but they are not doing business properly.
I could sit here for hours and give you statement after
statement after statement of egregious behavior, wrongful
denials, or in some cases deliberate malfeasance. All we ask is
that you continue to press this forward, you consider our
mission which is to have a full overhaul of the Veterans
Administration, completely reorganizing the way they are doing
business, and demanding full and 100 percent accountability and
repercussions for their actions.
Thank you again, Mr. Chairman, Ranking Member Titus,
esteemed panel. We are extremely grateful for the opportunity
to be here today to testify. We would be honored to take any
questions from you.
PREPARED STATEMENT OF LAUREN PRICE
Chairman Runyan, Ranking Member Titus, and members of this
Panel, VeteranWarriors expresses their gratitude for the
opportunity to offer our views on the (Department of Veterans
Affairs ) - VA's ``Most Complex Disability Claims'' issues.
The majority of this esteemed panel has never heard of
VeteranWarriors. Please allow me to introduce you to our group.
We are a very small group of Veterans and supporters, who have
decided to be the ``David'' in taking on the ``Goliath'' of the
Department of Veterans Affairs. Our sole mission is to convince
every necessary entity that the VA is broken and in need of a
full overhaul, such as the Internal Revenue Service was
subjected to in the late 1990's, and assist us in making that
reform a reality. We are internally funded and ask nothing for
our efforts. However, our efforts to see the VA reformed will
continue to press forward, until it is a reality.
Our team has spent five (5) years reviewing every audit,
investigation, Congressional testimony and media report,
regarding the actions of the VA. We have taken thousands of
statements from veterans and their families regarding
everything from egregious delays or outright denials of
rightfully earned benefits in claims processing to malpractice
within the VA Health system. The culminations of that research
lead us to create completely new working models of the major
sectors of the VA. For obvious reasons, the concentration
initially was on Veterans Benefits Administration side.
We were invited here to today to provide our opinion on
what could be the best method to assure that the VA processes
complex claims, in a timely, accurately and in a consistent
manner across the nation. To be brutally honest with this
panel, there is currently no process that is in place, which
will comply with those parameters.
To illustrate the dysfunction within the category of
complicated claims, we provide an analogy;
You have a five year old desktop computer. It has a
monitor, keyboard, mouse and a hard drive. For the last year,
your computer will only come on about 50% of the time. You
monitor works as does the keyboard and mouse - just the hard
drive won't boot up. You have had the ``Geek Squad'' look at,
you have taken it apart, you have sent it to the manufacturer;
every single person has told you that it is broken beyond
repair and to buy a new computer. Instead of buying a new one,
you buy a new monitor, you buy a new keyboard then you buy a
new mouse. But your computer STILL only comes on 50% of the
time.
When is Congress going to buy a new computer? When are we
going to force an overhaul of the VA?
This analogy illustrates what is happening between Congress
and the VA. For over thirty (30) years, the Government
Accountability Office (GAO), the VA - Office of Inspector
General (VA-OIG), the American Federation of Government
Employees (AFGE) as well as countless Veterans Service
Organizations (VSO) and veterans have testified, complained,
reported to the media and asked for Congressional intervention
regarding the absolute abysmal dysfunction that is the manner
of doing business for the VA.
To be clear, the term ``dysfunction'' is defined by Encarta
Dictionary (and VeteranWarriors regarding the VA), to be, ``An
irregularity in the functioning of any part or system, (and) a
characteristic of dysfunction of petty officialdom''.
Every veteran in this nation owes gratitude to the Veterans
Service Organizations (VSO), for their ongoing efforts to
assist with their claims and right the wrongs regarding VA
decisions. As well as their continued presence here on Capitol
Hill, representing them, in what the VSO's believe to be the
best interests of the veterans.
However, VeteranWarriors is not officially a VSO. We never
intend to be one. We will always do everything in our power to
help a veteran or a family who reaches out to us. Our goal is
not to placate or appease anyone, be it Congress, the officials
of the VA or a VSO. We offer no apologies for our views on the
actions of the VA. In other words, we are not here to lie to
Congress and tell you everything is looking up and the VA is
getting better at doing their ONLY mission. Unlike the VSO's
who have testified before us, we offer no kudos to any sector
of the VA. In fact, we are here to tell you the plain truth -
that the VA is irrevocably broken and the only way that all of
the issues which Congress has repeatedly attempted to address,
will be fixed, is by a forced overhaul based on VeteranWarriors
new models.
To address the purpose of this hearing, VeteranWarriors has
reviewed current staffing, equipment, and financial resources
that the VA is allocating to claims processing. The VA provides
no specific information as to the resources dedicated to
handling complex claims. We could find no official definition
of complex claims or any numerical breakout regarding the
handling of these claims. What we have found is that everyone
from Undersecretary Hickey to the VSO's has placed the blame
for a large part of the backlog on the complex claims. Our lay
understanding of a ``complex claim is a claim which has more
than 2 or 3 issues claimed by the veteran.
For clarity, the lion's shares of veterans coming into the
system over the last 12 years have ``complex'' claims. When you
have a demographic of veterans whose last decade has been spent
with multiple deployments to various hostile environments,
better educated veterans who know what their rights are and an
age of technology whereby the veteran can readily obtain
information, you have a recipe for what the VA considers to be
disaster.
The VA maintains that it is making headway in reducing the
backlog of claims in its inventory. As recently as November 7,
2013, Secretary Shinseki took credit for reducing the backlog
by over one-third since March 2013. What is being kept quiet,
what is the dirty secret is that a disproportionate number of
the complex claims are still awaiting adjudication or have been
``closed'' awarding the veteran a nominal rating on one or more
of the minor issues. The primary issues the veterans are
claiming are being either ``ZERO rated'' or denied outright.
The claims which the VA suggests are closed are the ``simple''
claims, ones with one or two issues. What the VA also does not
share is how certain claims are classified thus significantly
affecting the VA's reported numbers, to the VA's benefit.
This panel must understand an important delineator when
reading reports of the VA's successes. The VA considers ANY
type of claim that they have adjudicated and replied to the
veteran as ``CLOSED''. The important fact to remember is that
75% of the claims that are making their way to the Board of
Veterans Affairs Appeals court are remanded for correction.
These claims are only a small portion of the totality of claims
decided by the VA. Too many veterans give up and refuse to keep
fighting. So when the VA tells you they ``closed a claim'', it
is imperative that the one be highly suspicious of the source
of the data for the statement.
One type of ``claim'' that the VA has used to reduce the
backlog is ``Dependent Status Update'' claims. Getting married,
got divorced, had a child, child ages out but then goes to
college - these are all factors that are adjudicated under the
``CLAIMS'' category. Of course it would be really easy to
profess success if you just got these claims adjudicated. The
VA did this with one of our group - After a year of sitting
without action, the VA finally adjudicated his claim for
getting married. It took almost exactly one year after he filed
the ``FULLY DEVELOPED CLAIM'' to add a dependent.
Meanwhile, a veteran whose ``complex'' claim - filed while
still on active duty and in compliance under the ``Pre-
Discharge'' (formerly known as the Benefits Delivery at
Discharge program), took four (4) years to adjudicate. That
particular program was instituted jointly by the VA and the
Department of Defense (DoD) to `` . . . minimize the waiting
time for veterans to receive benefits and services . . . ''
because the VA professes when filed before the member leaves
active duty, the claimed issues are considered automatically
``service-connected''. The veteran was forced to file four (4)
Notice of Disagreements, a Formal Appeal (which the VA re-
characterized as a Notice of Disagreement) and a second Appeal,
which resulted in a Decision Review hearing. At which time, the
officer awarded the veteran all the claimed issues retroactive
to the end of active duty. However, the veteran still has not
received Special Monthly Compensation even though all the
claimed issues had transpired while serving as a convoy driver
in Iraq for a year.
Another Iraq combat veteran, has been denied for all
``automatically service- connected issues'', from day one. He
filed his claim upon discharge from the military in 2009 and to
date, has been denied for every issue claimed, in spite of
mountains of medical evidence which include the VA's own
records. He is now being forced to file a Formal Appeal in the
hope of every seeing any of his earned benefits.
We could spend the rest of this panel's time on the Hill
this year, extrapolating on the thousands of cases which have
come to our attention. We will not waste your valuable time by
doing so.
The issue of ``complex claims'' is the new reality for the
VA. However, the VA refuses to adjust fire and accept it,
manage it correctly, adjudicate them correctly and efficiently
or even entertain the idea that their way of doing business
with their sole customer does not work. From the Secretary down
to the lowliest janitor, no one is being held accountable, no
one is accepting responsibility, no one is forcing the rank and
file to abide by the laws, rules and policies that exist in
managing these complex claims. Instead, the VA finds ways to
manipulate the numbers, sugar-coat the malfeasance and explain
away the $100 billion dollars per year it spends on
administration of its business.
Congress has never denied the VA any money for doing their
job. But like a spoiled child, even getting what they want for
every ``pilot program'', new ``initiative'', increased manpower
or bright and shiny new technology, they still want more
without giving up anything. The VA does not have any
``transparency'' whatsoever. The veteran is forbidden from
speaking with claims adjusters. The VA does not provide
``screen shots'' of their work product. Rather, they employ
people whose sole purpose is to create reports that make the VA
look good to Congress and the media.
VeteranWarriors has developed a viciously more efficient,
streamlined model of processing these ``complex'' claims,
utilizing the resources the VA already has on board. No new
money, resources, manpower or laws are needed to make proper
adjudication of all claims, especially the complex ones, a
reality.
OUR proposed reality is one which provides for every
veteran of every era, most especially those with complex
claims. It is the right of every veterans claim to receive
efficient, accurate and professionally managed benefits and
services. This reality needs the support of every Congressional
leader across the aisle today. So are we going to continue to
ignore every expert that tells us the computer is broken and
continue to throw good money after bad, or are we ready to buy
a new computer . . . Are you ready to overhaul the VA?
Thank you again Mr. Chairman, Ranking Member Titus and
esteemed panel. We are truly grateful for the opportunity to
present our opinions to you today. VeteranWarriors is humbled
by the Congressional commitment and dedication to our veterans.
VeteranWarriors would be honored to answer any questions by the
panel for the record.
Executive Summary
The mission of VeteranWarriors is to be the catalyst which
forces the necessary changes to the manner in which the
Department of Veterans Affairs does business with its only
customers...the United States Veteran.
The VeteranWarriors testimony today, with regard to the
manner by which the Department of Veterans Affairs manages
complex claim, will introduce our position to Congressional
leaders and provide clarity regarding Veterans Affairs
practices and disciplines which are in our opinion,
contradictory to the mission statement and very purpose of the
Department of Veterans Affairs.
VeteranWarriors' primary areas of concern and
recommendations remain static;
* That complex claims are the standard rather than the
exception and the VA has steadfastly refused to accept that
these are the standard types of claims that veterans will
submit now and continuing into the future.
* That complex claims are being pushed to the ``back
burner'' in favor of ``simple claims'' in an effort to appease
Congressional mandates, media pressure and veterans concerns.
* That the VA Regional processing offices are foregoing
handling complex claims in an effort to meet statistical
requirements set out by the Secretary of the VA, as well as
entice employees by creating a method to receive financial
remuneration for the volume of claims ``Closed'', rather than
focusing on accuracy and timeliness.
* That Congressional leaders discontinue hearings, audits
and investigations into the multiple issues of malfeasance,
incompetence and dereliction of duty regarding the VA's
handling of claims, in particular complex claims that have been
going on for decades.
* For Congress to discontinue accepting the officials from
the Department of Veterans Affairs manipulated data as factual,
in the face of incontrovertible evidence to the contrary,
especially without sworn testimony by the VA officials.
* The recommendations to the panel include a complete
overhaul of the Department of Veterans Affairs, specifically
utilizing VeteranWarriors efficiency model.
* Having identified the multiple methods by which the VA
manipulates data presented, VeteranWarriors suggests that
Congress has no other clear and present duty but to demand a
full overhaul of the Department of Veterans Affairs.
Mr. Runyan. Thank you, Ms. Price.
And now we will hear from Ms. McNutt. Please begin your
statement when you are ready.
ORAL STATEMENT OF BETTYE MCNUTT
Ms. McNutt. Thank you, Mr. Chairman, for holding today's
hearing on----
Mr. Runyan. Do you have the microphone on?
Ms. McNutt. --complex VA claims. My name is Bettye McNutt.
I am the widow of Ronald Adrian McNutt, Vietnam War veteran.
Accompanying me today is my attorney, Mr. Bergmann, of Bergmann
& Moore.
The Subcommittee on Disability Assistance and Memorial
Affairs invited me here today to discuss what has become my
most complex and now 23-year-old claim for VA dependency and
indemnity compensation.
I am here for two reasons. First, I am here seeking justice
for myself and for my family. I ask VA to correctly and
promptly apply the law and grant my claim. Second, I am seeking
justice for other widows and orphans of our Vietnam War
veterans.
In the audience today is my son who lost his father and his
best friend when he was 12. Also in attendance today is my
niece, Sandra Peterson, who is the daughter of a Vietnam War
veteran who also died from Agent Orange poisoning.
Mr. Chairman, I filed my claim in 1990. This same claim
remains pending. I have waited 8,600 days of VA delays and
denials. VA erroneously denied my claim seven times. For nearly
12 years, my claim sat idle at VA because VA did not respond to
my notice of disagreement.
The Court of Appeals for Veterans Claims returned my claim
to VA three times based on errors, errors conceded by the VA. I
know that VA is waiting for me to die. Without immediate
attention, my claim is destined to sit idle for several more
years as I wait, hope, and pray for a resolution.
My late husband, Ronnie, was born in Memphis, Tennessee on
December the 31st, 1947. As a 19-year-old college student, he
was drafted into the U.S. Army. Ronnie was deployed to the
Vietnam War in 1968 and 1969.
On September the 22nd, 1987 at the early age of 39, he died
from an aggressive form of cancer leaving me a widow with a
young son. His death came quickly from a cancer that invaded
many parts of his body very rapidly. Ronnie died within five
months.
I brought a picture today of my Ronnie because this hearing
today is honestly about my Ronnie. He died because of the
Vietnam War and his service to his country.
On his death bed, he told me about how he swam in rivers
highly contaminated with Agent Orange. Ronnie told me stories
about using discarded Agent Orange barrels for barbecue pits.
First, VA has not contested that my husband served on the
ground in Vietnam. Second, the law presumes veterans on the
ground in Vietnam were exposed to Agent Orange. And, third, a
medical expert provided the VA with two nexus medical opinions
concluding that Ronnie's cancer was as likely as not due to his
exposure to Agent Orange in Vietnam.
VA's Jackson, Mississippi regional office made many, many
mistakes. First, on more than one occasion, the VA applied the
wrong legal standards to decide my claim. Second, VA ignored
favorable medical evidence to my claim. And, third, the VA
sought evidence to deny my claim.
A lot was taken away from me 26 years ago and I have done
the best that I knew how as a widow to provide for my son,
Brandon. The impact of my husband's death on my son was
tremendous. Words cannot tell you. I have had emotional,
physical, and financial distress. For me, I have suffered
unimaginable grief from Ronnie's death. For 8,600 days, words
cannot express my suffering.
Going without my VA benefits has meant coming home
different occasions to a very cold and dark house because my
utilities were turned off. It has meant receiving food and
clothing from strangers as I sometimes came up short. It has
meant begging for mercy as a repo man stands in my driveway at
two o'clock in the morning to take my car.
In conclusion, the VA's mistakes and their delays involve
more than just me. It is not about just Bettye McNutt. There
are many Bettye NcNutts out there.
Congress passed a law mandating that VA expeditiously
process appeals like mine. However, VA routinely ignores this
law. Now is the time for Congress to put teeth into that law so
other widows like myself can get accurate and prompt decisions
on their VA claims.
Mr. Chairman, no one should have to go through that for
8,600 days. Thank you for listening to me.
PREPARED STATEMENT OF BETTYE MCNUTT
Statement for the Record
Bettye B. McNutt
Surviving Spouse of Vietnam War Veteran Ronald A. McNutt
Before the Subcommittee on Disability Assistance and
Memorial Affairs
Committee on Veterans' Affairs
U. S. House of Representatives
Regarding
``Adjudicating VA's Most Complex Disability Claims:
Ensuring Quality, Accuracy and Consistency on Complicated
Issues''
December 4, 2013
Introduction
Thank you Chairman Jon Runyan and Ranking Member Dina Titus
for holding today's hearing about ``Adjudicating VA's Most
Complex Disability Claims: Ensuring Quality, Accuracy and
Consistency on Complicated Issues.''
My name is Bettye B. McNutt, and I am the widow of Vietnam
War Veteran Ronald A. McNutt. Accompanying me is my attorney
handling my claim, Glenn R. Bergmann, a partner of Bergmann &
Moore based in Bethesda, Maryland.
I am honored to be here to testify before the Committee on
Veterans' Affairs. The Subcommittee on Disability and Memorial
Affairs invited me here today to discuss what has become a
complex and now 23-year old claim for Dependency and Indemnity
Compensation (DIC).
DIC is a benefit provided by the U.S. Department of
Veterans Affairs (VA) for surviving family members when a
Veteran dies of a service-connected medical condition.
I am here for two reasons. First, I am here seeking justice
for myself and my family. I ask VA to correctly and promptly
apply the law and grant my claim. I have waited eight thousand
six hundred days too long. Without immediate intervention, my
claim is destined to remain open for several more years as I
wait, hoping and praying for VA to properly decide my claim.
Because of VA's frequent mistakes, I have been forced to live
in poverty sometimes without heat and electricity as a widow
raising a son orphaned by the Vietnam War.
Second, I am here seeking justice for the other widows and
orphans of our Vietnam War veterans, as I am well aware that
there are many like me. In the audience today is my son,
Brandon, and my niece, Sandra Peterson. She is the daughter of
a Vietnam War veteran who also died from Agent Orange
poisoning. Widows and their families should not be subjected to
decades of delay. Sadly when faced with a denial most people
give up. I think VA knows this. VA must quickly grant the
worthy claims of other widows and orphans. VA must follow the
law.
The unnecessary waiting must end now, for me and for the
many hundreds of other widows and orphans coping with the loss
of a loved one due to cancers associated with exposure to Agent
Orange during the Vietnam War.
Ronald A. McNutt, 1947 - 1987
My late husband Ronnie was born in Memphis, Tennessee on
December 31, 1947. As a 19-year old college student, he was
drafted into the U.S. Army as an infantryman. Ronnie served
honorably between November 16, 1967, and June 19, 1969. Ronnie
deployed to the Vietnam War from April 30, 1968, to June 16,
1969. On September 22, 1987, at the early age of 39, he died
from an aggressive form of cancer, leaving me a widow with a
young son. His death came quickly from a cancer that invaded
many parts of his body. Ronnie died within five months of his
first diagnosis of cancer.
I brought two pictures of my Ronnie with me today because
this hearing is about my husband. He died because of the
Vietnam War and his service to our country. On his death bed,
just weeks before he died, he told me about how he swam in
waters highly contaminated with Agent Orange. He told stories
about using discarded Agent Orange barrels as makeshift
barbeques. There is no doubt in my mind and in my doctor's
professional opinion that the dioxin poison in Agent Orange
killed my Ronnie.
I am here because our nation makes a solemn commitment to
the families of our Veterans. At the west end of the Washington
Mall, inside the Lincoln Memorial, are these important words:
With malice toward none, with charity for all, with
firmness in the right as God gives us to see the right, let us
strive on to finish the work we are in, to bind up the nation's
wounds, to care for him who shall have borne the battle and for
his widow and his orphan, to do all which may achieve and
cherish a just and lasting peace among ourselves and with all
nations.
One phrase from President Abraham Lincoln is memorialized
on a plaque on the front of the VA central office one block
from the White House here in Washington, DC:
... to care for him who shall have borne the battle and for
his widow and his orphan.
Request to VA
I am here today seeking justice in my husband's name, as VA
appears to have forgotten the second part of the phrase, ``for
his widow and his orphan.'' VA is not doing the job the
American people expect and our Veterans' families deserve.
This claim has become complex despite the fact that I have
satisfied all the legal requirements for DIC benefits. First,
VA has not contested that my husband deployed to the Vietnam
War, as shown by his discharge papers. Second, the law presumes
Veterans deployed to the Vietnam War were exposed to Agent
Orange. And, third, a medical expert provided VA with a
``nexus'' medical opinion concluding Ronnie's cancer was ``as
likely as not'' due to exposure to Agent Orange during his
deployment to Vietnam.
Complex Claim
I originally filed my claim with the Jackson, Mississippi
VA Regional Office on May 19, 1990. My DIC claim is difficult
because it deals with Agent Orange on a direct basis. At one
point, VA deferred (although probably lost) my claim for nearly
12 years, from 1994 to 2006, apparently waiting on new research
about the harmful effects of Agent Orange. I believe VA lost or
simply forgot to process my claim until I reminded the agency
about it in 2006.
However, VA needlessly made my claim far more complex. VA
gave contradictory reasons for denial; applied the wrong legal
standard; ignored evidence favorable to my claim; and sought
evidence to deny my claim.
In summary, during my 23 year battle to obtain VA benefits,
VA improperly denied my claim seven times. Despite the fact
that my DIC claim was returned by the Court of Appeals for
Veterans Claims (Court) three times based on VA errors, VA
still refuses to follow the law and science and grant my claim.
My letters to the President and Congress are simply
referred back to VA without action by VA. I feel that VA is
waiting for me to die.
VA Errors
My 23 years fighting for justice is complicated and
lengthy. I provided the Subcommittee with a detailed chronology
which appears at the end of my statement.
In summary, VA has made six significant mistakes on my
claim. As a result, my claim now sits once again at the Board
of Veterans' Appeals (Board) awaiting adjudication yet again
here in Washington, DC. Here are the most salient facts
regarding VA's chronic errors.
1.VA's first error: VA did not issue a Statement of the
Case. On May 19, 1990, I filed my claim at the Jackson,
Mississippi regional office. On December 10, 1990, VA
improperly denied my claim. On February 7, 1991, I filed a
timely Notice of Disagreement (NOD) to begin the appeal
process. On November 16, 1994, VA issued a second rating
decision. However, VA never issued a Statement of the Case in
response to my original NOD, thus leaving my claim open and
unadjudicated.
2.VA's second error: In response to a letter I wrote to VA
on February 17, 2006, VA incorrectly considered my letter as a
request to reopen my claim, even though my claim remained open
and unadjudicated since 1990. Despite this, on June 3, 2006, VA
denied my claim on the grounds I did not provide new and
material evidence.
3.VA's third error: On June 3, 2006, VA approved a death
pension, even though I didn't apply for it. I returned the
check they sent me because it was incorrect.
4.VA's fourth error: On August 4, 2009, the Board
incorrectly denied my claim because it found that Ronnie's
cancer was not on the list of presumptive diseases associated
with Agent Orange exposure.
5.VA's fifth error: On March 4, 2011, despite the existence
of a favorable medical opinion by Dr. Carey that found a causal
link between my husband's death and exposure to Agent Orange in
Vietnam, the Board again denied the claim because my husband's
cancer was not the type of cancer on the list of presumptive
diseases associated with Agent Orange exposure.
6.VA's sixth error: In a March 2012 letter to the Chief of
Staff at the VA Medical Center in West Virginia, the Board
declared the private medical opinion which it had previously
stated it had ``no reason to doubt'' was contradictory and
ordered its own independent medical expert opinion. Relying on
an outdated Institute of Medicine (IOM) study, the ensuing VA
opinion found that there was a less than 50% probability that
my husband's cancer was the result of in-service herbicide
exposure.
7. VA's seventh error: In September 2012, the Board denied
my claim again finding the VA medical opinion more probative
than the private medical opinion, despite a follow-up medical
opinion refuting the VA examiner's findings and a written brief
submission by my attorneys on August 6, 2012.
I am upset at VA's behavior because VA appears to be
opposing me at every turn. VA can easily grant my claim right
now if they reviewed the evidence of record and correctly
applied the law. This is not a difficult claim, but VA has made
it complex. VA denied my claim for 23 unbearable years based on
conflicting reasons. If VA follows the law and stops their
seeming effort to undermine my claim, it will be granted as I
have satisfied all the requirements DIC.
Hardship
As noted above, I commenced this claim some 23 years ago.
VA has provided inconsistent reasons for denying my claim which
continues to cause me enormous frustration and hardship.
The impact on my son Brandon was tremendous. He lost his
father at the age of 12. Ronnie's death upended Brandon's young
life. He started failing in school, suffered from nightmares,
and severe nervousness which resulted in ridicule by teachers
and students because of the change in his behavior. His dad did
not see him graduate from high school, attend his prom, or be
there to mentor him as a good father.
For me, I've suffered unimaginable emotional grief from
Ronnie's death. I've done the best I can as a widow to provide
for my son. Despite the fact that I worked, my son and I
experienced severe economic hardship. We simply learned to do
without for a very long time. There were times when we did not
have enough food. We learned to rely on friends and even
strangers to provide simple groceries. I would sometimes come
home in the dark to a house that had no heat or electricity
because I could not afford to pay the bills.
It sickens my heart that VA simply does not follow the law
or science. My claim should have been granted decades ago.
8,600 Days
In conclusion, I seek justice for my husband Ronald who
died from cancer due to Agent Orange poisoning. I ask VA to
grant my DIC claim. I have waited eight thousand six hundred
days too long.
For the other widows and orphans of Vietnam War veterans
who died due to Agent Orange, I ask VA to improve training so
that VA employees follow the law, consider favorable evidence,
and stop trying to find reasons to deny claims.
This is not just about me. In 2003, Congress passed a law
mandating that VA expeditiously process appeals like mine.
However, VA routinely ignores this law. Today, VA's
``expeditious'' treatment equates to at least four more years
of additional delay.
I wish Congress would put teeth into that law so the
thousands of other widows and Veterans get accurate and prompt
decisions on their VA appeals.
Thank you again for this opportunity to appear here today.
I will gladly answer your questions.
Mr. Runyan. Thank you for your testimony.
And both, Ms. McNutt and Ms. Price, thank you for being
here and putting your personal view to all of us.
We will start with a round of questions. I know the clocks
are not up, but we will be able to see it from this end. So to
get moving in a timely manner, the first question is for Ms.
McNutt.
Talking about this process and moving it forward with--you
are accompanied by your attorney, Mr. Bergmann, here. Could you
tell us about when you decided to engage in counsel and how
that has helped you to get to where we are today in this
process because like you just kind of alluded to, there are
many, many other people out there in the same situation?
Ms. McNutt. Well, as I said, I was introduced to Agent
Orange on his death bed. And after his death, that was forever
in the front of my mind.
So I proceeded without any help, without any direction. I
started researching the chemicals in Vietnam. I read an article
in a newspaper and it was talking about Agent Orange. And I
filed a claim in 1990.
Most of these were just, as I said, stumbling in the dark
grasping. But as I went along, the more I learned and the more
I felt it was something that I had to do because my husband
told me about this on his death bed for a reason which at the
time I did not understand.
Mr. Runyan. Can you give a little insight, though, on how
counsel----
Ms. McNutt. After 20 years of groping in the darkness and
dealing with the VA and all their errors, I prayed. I asked for
help. And one day I received a call from the Vietnam Veterans
of America and I was told that I might want to seek counsel.
I went online and I found Mr. Bergmann. And I decided this
is going to be the person that is going to help me. This is who
I want to represent me.
Mr. Runyan. Mr. Bergmann, can you elaborate a little on
what you have done to expedite the process, if you will?
Mr. Bergmann. Certainly. Thank you.
As Mrs. McNutt has indicated, she commenced her claim in
1990 and her claim sat for over 12 years. When we came on her
case--as former VA counsel, my job once I left VA's employ--our
job as attorneys is always to connect the dots, to make sure
that the evidence that is needed to satisfy the requirements is
presented to VA.
VA is supposed to in a non-adversarial posture,
paternalistic posture, to give notice to veterans and widows
and they routinely do not do that.
So what we did in Ms. McNutt's case is we assisted in
getting the medical evidence which was not difficult. Her
husband had a very aggressive form of cancer at the age of 39.
And we put the evidence together with our arguments and
submitted it to VA. And, you know, we can do all we can to dot
our Is, cross our Ts, but we cannot make VA properly apply the
law.
And we have been up to the U.S. Court of Appeals for
Veterans Claims three times and each time, a VA attorney will
trot forward and say, you know, we made a mistake, this case
needs to go back. That does not help Mrs. McNutt, but we are
hopeful that--despite 23 years--we are hopeful we are near the
end.
Some of the help that we get along the way, obviously the
Veterans Choice Act of 2006 has been helpful in allowing
attorneys early access to assisting veterans and widows.
Mr. Runyan. Thank you.
And one question for Ms. Price. From all the testimonials
you have taken from veterans on a national scale, what are the
most frequent errors you have heard of in the process?
Ms. Price. Not necessarily in any ranking order, Chairman,
but most specifically as counsel, Mr. Bergmann, said failure to
apply the law correctly, complete disregard of medical evidence
provided, most specifically from civilian providers. That is
very high on the list.
And the third one, and this rides to the top pretty
regularly, is the almost complete and utter disregard for
anything that is considered a policy, rule, regulation, or law.
The raters seem completely incapable of rudimentary reading of
their own policy.
I have a very specific one in my case. The secretary sent
down a policy change, an order directly to the regional offices
with regard to those of us exposed to burn pits in Iraq and
Afghanistan April 26th of 2010.
That application of that policy change has, to the best of
my knowledge, not been addressed once in the almost 5,000
victims I know personally.
Mr. Runyan. Thank you.
And with that, I yield to the ranking member for her
questions.
Ms. Titus. Thank you.
And thank you both for your testimony. You are very
courageous to come and we appreciate your willingness to share
your stories. We do not want to see anybody else have to go
through what you have.
I understand the general dissatisfaction and the desire to
make the VA follow the law and to overhaul the way they do
business, but can you tell us just one, just start with one
specific thing, and I would ask both Ms. McNutt and Ms. Price,
one thing that could do through legislation that would make the
process work better because that is what we have to work with.
How can we change the law or how can we change the policy
in a specific way that would improve circumstances?
Ms. Price.
Ms. Price. Yes, ma'am. I have a very specific answer for
you.
Ms. Titus. Okay.
Ms. Price. You could create a law that essentially orders
the secretary to establish a complete set of repercussions and
an oversight agency that has the ability and the authority to
dish out those repercussions, that when malfeasance, deliberate
especially, is shown on the part of a rating official, on the
part of a case manager, on the part of a healthcare provider,
that those people can be terminated, that those people can
suffer the repercussions like any civilian would for doing
their job poorly or deliberately not doing their job the way it
is supposed to be done.
Ms. Titus. And I would ask the attorney if somebody is
guilty of malfeasance in doing their job, aren't there already
in place some ways to go after that person? You were a VA
attorney; is that correct?
Mr. Bergmann. Are you talking about the VA?
Ms. Titus. I am talking about in response to what Ms. Price
just said.
Mr. Bergmann. I do not deal much with malfeasance issues.
What I deal with, Ranking Member Titus, is appeals where each
case that comes down from the court has language citing to the
law, Title 38, Section 7112 that says this case will be given
expeditious treatment.
Now, and I realize I am not being responsive to your
question----
Ms. Titus. I can ask the VA for some of that information. I
appreciate that suggestion.
Ms. McNutt.
Ms. McNutt. There has got to be someone somewhere that has
the total authority in making sure that the training--they say
there is lack of training, lack of technology. I do not
understand that. If I acted in those ways, I would have been
fired.
But I think stronger force should be put on them to enforce
the law by putting someone in place or maybe more than one
person that would oversee that this law is enforced, that it is
a serious matter and that something has got to change.
And I am with her. If you cannot perform the job, find
another job.
Ms. Titus. Thank you, Mr. Chairman.
Mr. Runyan. I thank the gentle lady.
With that, I recognize Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman, and thank you for
having this hearing.
And thank you all for being here.
And I want to build on what the ranking member just asked.
Mr. Bergmann, you have been on both sides now legally with your
employment previously and what you do now.
Do you have any advice or guidance you would give this
committee on how the VA could work its claims process better?
Mr. Bergmann. I guess the advice I would give, sir, is that
there be accountability. What I see is a lack of accountability
at the agency level where we are not supposed to be on opposite
sides of the aisle.
VA will not talk to us. If we do get someone on the
telephone, they will ask us how we got their number. We get
differing responses each time. We cannot handle many cases at
the agency level sometimes because we do not know where our
file is because we get different responses to that.
So I think if we can hold the folks who are deciding these
claims accountable, that would help veterans and widows and
their counsel in expediting the process.
Mr. Lamborn. Accountability, that is a great thing to bring
to our attention. Training and incentives, do you have any
advice in those areas?
Mr. Bergmann. As Mrs. Price talked about, she indicated her
concern that it seemed like that some VA ratros decision makers
but only 20 percent do not follow simple guidelines. Absolutely
training is key.
I think the VA's OIG report of last year indicated that,
and I may be misquoting and I think the OIG is going to provide
a report later today, but only 20 percent of their ratros
decision makers are properly trained. That means 80 percent are
under-trained. These are people who are deciding our veterans'
disability claims. This is not acceptable.
Mr. Lamborn. Okay. Thank you.
Mrs. Price, I want to thank you for your service.
And, Ms. McNutt, I want to thank you for your husband's
service.
Mr. Chairman, I yield back.
Mr. Runyan. I thank the gentleman.
With that, I recognize Mr. O'Rourke.
Mr. *O'Rourke.* Thank you, Mr. Chair. And I would also like
to thank the chairman for organizing today's hearing in the
manner in which he has organized it.
Very often we will hear from representatives from the VA
and then afterwards perhaps hear from VSOs or others who are
impacted. I like this order because I am really looking forward
to hearing the VA's response to the issues that you brought up.
And the word that we keep hearing over and over again is
accountability. And to use your word, Ms. Price, repercussions.
We want to see how that accountability is implemented and what
the consequences are when someone does not do their job
properly or when there is the case of malfeasance or someone
who is working against the interest of the veterans that they
are supposed to serve, we want to know what the consequences
are specifically.
And I think you raised a great point. One hit home with me
and it sounds like with the rest of the committee.
And, Ms. McNutt, as I said earlier when I had a chance to
meet you before the hearing began, I commend you on your
courage in being here. I hope that your story helps galvanize
the VA, you know, one, to resolve your claim which has taken
far too long already, but also to serve as the added inducement
to ensure that no one else is suffering what you have been
through and to bring stories like yours to our attention as an
oversight committee and body and to the attention of the VA.
So really appreciate your service, Ms. Price, and through
you, Ms. McNutt, your husband's service and your support of him
and his legacy and memory and both of you, your reference on
behalf of other veterans and veterans' families who are
suffering these same kinds of problems.
So I really do not have any questions. I will reserve those
questions for the VA based on the issues that you brought up. I
just want to let you know that your stories have hit home and I
really do think they are going to have their intended effect of
changing the culture and adding additional power to our ability
to exercise oversight over the VA. So thank you.
Mr. Chair, I yield back.
Mr. Runyan. I thank the gentleman.
And the chair now recognizes Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman, and I appreciate
you holding this hearing, a very important hearing.
And I appreciate the testimony. Mrs. Price, who I know
pretty well, we worked together over the years on VA issues.
And, Mrs. McNutt, thank you for your courage and I know you
will make a difference for others.
And I really appreciate so very much for both of you
testifying today.
Mrs. Price, first of all, thank you for your service as
well. Thank you for testifying, and I want to ask you a couple
questions if that is okay.
You have met with me over the years on particular cases,
and I really appreciate it, and you worked with my district
office as well to help our true American heroes, our veterans.
I have a question with regard to, again, give--can you
explain, elaborate a little bit on your particular case, the
experiences that you had over the years? I think that would be
helpful to the committee as well, if you will.
Ms. Price. Thank you, Congressman.
It has actually been my honor and privilege to work with
you over the last few years, in particular for other veterans'
issues. I know you are extremely supportive of all of us that
have come home whether we need VA services or not.
But to answer your question, when I got home, I was still
on active duty. I was stationed at SATCOM and I was sick and I
was injured. And I went through the medical board process and
it took--by the time we completely finished, it took about 10,
11 months for me to get through my board process.
But I stayed on active duty for 18 months total. And my
first rating from the VA came in and it said you have 30
percent. There is a rule in place called the DeLuca criteria
that has been around for decades based on a court case. It has
to do with every single one of us that has bilateral appendage
injuries, arms, legs, ears, eyes, anything you got two of.
Up until the time I had a DRO hearing, I had it appeared to
be the same case manager. Because I am an English aficionado
and the method in which the way the person wrote letters to me,
the verbiage the person used seemed to be the exact same person
every time.
The raw rating on my hands is 230 percent and that is a big
number, but they have a very algebraic method of using
cumulative math. Both of my hands, I had the bones removed and
my tendons rerouted so that I could actually even hold this. I
cannot tie my shoes. I cannot button buttons. I cannot do zip
lock bags, all kinds of things.
My last surgery was while I was still on active duty. I
also contracted this lung disease.
When I sent all of this information in including some very
elaborate ratings on my hands, the testing that took five
hours, the first letter that came back to me was telling me
that the amputation rule did not apply to me which is a very
basic rule that the VA has.
When you hit a certain calculation level, we just said,
okay, we are done. You know, we are too high up. Now you just
go over and use the amputation rule and you treat it as loss of
use or loss of the limb. Said you did not lose your hands, what
makes you think you get to use the amputation rule.
I had essentially that same answer all three appeals. My
lungs they told me I did not, both my lungs and my hands, they
told me I did not qualify for combat-related or SMC.
I was a convoy driver. I have over 350 missions. I drove
Humvees. I drove LNTVs. I even drove an Iraqi city bus in
downtown Baghdad. And I provided all of that information in my
case, pictures taken by combat cameras of me driving. They
still denied me over and over and over again.
I have PTSD for a variety of reasons up to and including
being a combat driver. When I filed the claim, they denied me
right away, immediately. They said you do not have it. Our
evaluator said that you must have had a bad childhood. No,
actually, I did not. My childhood was not terrible. It was not
great. I was a kid. But it had to do with the issues that
happened over there.
And I was being treated by their own psychiatrist and their
own psychologist for a year who said I had PTSD, but yet they
still denied me. Does that answer your questions, Congressman?
Mr. Bilirakis. Yes, yes.
Ms. Price. Thank you very much.
Mr. Bilirakis. Thank you very much.
And I know my time has expired. Will we have another round?
I know you have three. Can I have one more question? Thank you
very much.
Ms. Price, the VA stated in its testimony that from 2009 to
2013, the average number of issues included in a disability
claim increased from 2.8 to 4.9 and that the VA is issuing
lanes as an organizational structure to process complex claims.
They stated that the core lane includes claims with three or
more medical issues that do not involve special populations of
veterans. That is a quote there.
Can you expand upon your thoughts about this aspect of the
VA's testimony?
Ms. Price. Specific to core claims?
Mr. Bilirakis. Specific to the process.
Ms. Price. Okay.
Mr. Bilirakis. Yes.
Ms. Price. Putting things into lanes?
Mr. Bilirakis. To lanes, correct.
Ms. Price. Okay.
Mr. Bilirakis. Correct.
Ms. Price. Does anybody here drive in traffic? Does anyone
here ever drive on the Beltway? You have lanes. There are only
so many and there are express lanes. And in theory, everybody
uses the express lanes. How many people have seen the news
stories about the guy riding with the mannequin in a seat to
get into the express lane?
Yeah, there are going to be ones that go into those express
lanes, but our special operations claims, I love that they took
that title, we have complicated claims. Those complicated
claims are still being ignored and still being pushed aside
because the lane that they have has a group, a group of
adjustors and raters that are dealing with them.
Instead of them being either brokered out to other regional
offices that do not have a backlog like Nebraska, Oklahoma,
they are not brokering them out, they set on them. And then
they have these core which I do not even get what core is.
Okay. So you have three. They have they call them the express
lane for one or two. If you hit three, but it does not hit into
what seems to be a rather fluid definition of special or
complex, you end up in the core.
They are also not giving any information as to what the
qualifications are of these people that are managing those
lanes or those raters that are working in those lanes because
experienced rater does not tell me anything. How many years did
they have rating medical claims for MetLife before they went to
the VA?
Mr. Bilirakis. Thank you.
I will go ahead and yield back. Thank you, Mr. Chairman.
Mr. Runyan. The chair recognizes Ms. Negrete-McLeod.
Ms. Negrete-McLeod. No questions.
Mr. Runyan. No questions.
Chairman Miller? Nothing.
I want to thank you all again for your testimony and being
here today. You are now excused and we will ask the second
panel to come forward to the witness table.
At this time, I welcome panel two which includes Mr.
Sherman Gillums, the associate executive director for Veterans
Benefits, Paralyzed Veterans of America; Mr. Ronald Abrams,
joint executive director of the National Veterans Legal
Services Program; and Mr. Zach Hearn, deputy director of Claims
with The American Legion.
We appreciate all your attendance today. Your complete and
written statement will be entered into the hearing record.
Mr. Gillums, you are now recognized for five minutes for
your testimony.
ORAL STATEMENT OF SHERMAN GILLUMS
Mr. Gillums. Thank you, Mr. Chairman.
Chairman Runyan, Ranking Member Titus, Members of the
subcommittee, on behalf of Paralyzed Veterans of America, I
want to thank you for this opportunity to discuss complex
claims, a topic that is near and dear to veterans like me and
those we represent at PVA.
Complex claims by their nature involve those cases that
require the most experienced eyes and minds to properly
adjudicate. These can be the oldest claims in the inventory,
claims with multiple issues or those presenting the most
complicated circumstances to unravel such as military sexual
trauma, PTS, and catastrophic disability.
Since membership in PVA is predicated on catastrophic
disability, that will be my focus.
PVA service officers have honed a unique expertise in
developing and advancing the most complex claims in the system.
Where special multi compensation or SMC claims are often the
exception for most accredited representatives, they are fairly
common for PVA. So we appreciate this long overdue focus on
complex claims.
The Veterans Benefits Administration has made tremendous
strides in reducing the backlog since launching the 21st
century transformation initiatives. But as we said during our
June 2012 testimony complex claims remain problematic because
disability benefits questionnaires, evaluation builders, and
rules-based calculators too often oversimplify cases that
require critical thinking and inductive reasoning, not
algorithms, to adjudicate with true accuracy.
So any accuracy numbers achieved through the use of these
processes are qualified by context as it relates to complex
claims. The problem is defining accuracy of these cases often
lies in the eye of the beholder. If by accuracy VA means the
veteran receives maximum entitlement, then accuracy targets
remain unmet.
VA contextualizes accuracy to mean if the rator inputs a
given data set such as the boxes checked on a DBQ or C&P exam
results and follows the rules-based prompts, the decision will
be free of error based on this algorithmic construction.
The problem is disability evaluation builders do not
encourage the application of judgment-based principles like
reasonable doubt or guide rating specialists through
ambiguities in the evidence by reconciling the difference
between total loss of bladder control versus neurogenic bladder
sphincter and someone with a spinal cord dysfunction.
And this is where we have issues with the way complex
claims are adjudicated under a rules-based system.
A veteran with a severe disability may receive an accurate
SMC rating under VA's definition based on limited evidence and
binary rules but not the most accurate rating possible that
reflects the true extent of disability or need.
And I will give you a case in point that deals with the
terrible condition that PVA sees all too often, ALS or Lou
Gehrig's disease, a fatal motor neuron disease that does not
slow down for the painstaking protocols that VA must follow.
Since the passage of the presumptive rule on ALS open
entitlement to veterans and survivors, PVA has worked over
6,200 ALS claims which has made our field staff more familiar
with these complex cases and extremely staunch in our
insistence that they are timely and accurately adjudicated.
So you can imagine my reaction when I heard about a veteran
in San Diego who received notice that he needed to submit to a
compensation and pension exam to prove his need for skilled
care despite presenting competent medical evidence of such need
from his treating physician.
The VA has the prerogative to call claimants in for exams
pursuant to a claim, but this prerogative has become one of
those intractable rules that we criticize. The problem is this
veteran was in hospice so he could not submit to an exam.
The VA rater, an experienced lane coach, was bound by the
quality-driven rule that C&P exams are mandatory even though he
had enough evidence to grant this R2 claim and the regulatory
discretion to do so under Title 38 which states any hospital or
exam report from a government or private entity may be accepted
for rating a claim without further examination.
VHA directive unacceptable clinical evidence also allows VA
examiners to supplement the review of claims files with a
telephone interview if necessary with the claimant in order to
complete a DBQ.
When neither option was exercised here, the words hospice
and skilled care noted in the medical records simply triggered
the requirement to order a C&P exam in the name of quantity.
Instead of serving as prima facie evidence of imminent death,
thus substantiating the need for regular skilled care, common
sense will give way to a calculator which is supposed to be a
decision support tool, not replacement for one's reasonable
faculties.
To make this point, I offered an analogy. Three plus two
always equals five. And if every disability claim were based on
metrics like decibel level or percentage of range of motion, a
high degree of accuracy will be achievable under the current
system.
But these complex claims are like adding two irrational
numbers, pi 3.14, so on and so forth, plus the square root of
two, to arrive at an outcome that cannot be precisely summed
with a calculator. In that same vein, these claims call for
informed, qualitative analysis to find the most accurate albeit
imprecise answer.
That answer was never found in the San Diego case as the
claim ultimately died when the veteran finally succumbed to his
ALS. This was a missed opportunity to do the right thing.
Unfortunately, this was not an isolated case. We see VA
regional office staff across the country pointing to the same
rules to justify taking unnecessary steps in similar cases.
And I can point to one in Nashville for Ms. MacDonald who
is going to follow this panel. She is the regional office
director who will testify.
And, of course, in New Jersey, Mr. Chairman, I also have a
case for you if you are interested.
We understand the dilemma VA faces under pressure to reduce
the backlog while achieving timeliness and accuracy targets,
but every aspect of this problem is not a numbers game.
In the case of complex claims as we define them, there are
no shortcuts to doing them right. They require experienced
minds that are free to apply common sense and pro veteran legal
principles like reasonable doubt or foregoing C&P exams when
existing evidence is satisfactory in the qualitative
deliberation of claims with no black and white answers.
As I said earlier, accuracy is not about how well VA raters
adhere to a set of protocols to arrive at an ostensibly logical
outcome notwithstanding obvious blind spots in the process.
Accuracy is measured by whether VA has provided the maximum
benefit possible in these complex claims with imprecise answers
that do not lend themselves well to binary propositions and
calculators.
Thank you, Mr. Chairman, Ranking Member Titus, and Members
of the committee, and I will be happy to answer any questions
you have.
PREPARED STATEMENT OF SHERMAN GILLUMS
Chairman Runyan, Ranking Member Titus, and members of the
Subcommittee, Paralyzed Veterans of America (PVA) would like to
thank you for the opportunity to offer our views on the
adjudication of VA's most complex disability claims to ensure
quality, accuracy and consistency on these complicated issues.
PVA has a unique expertise in dealing with complex claims
because PVA members have complex disabilities as a result of
spinal cord injury or dysfunction.
The Department of Veterans Affairs (VA) has fully deployed
its new processing model for disability compensation claims,
called the Veterans Benefits Management System (VBMS), in order
to reduce the number of backlogged claims. This paperless
processing model places an emphasis on expediting claims where
the supporting documentation is fully developed by the Veteran.
But the success of VBMS greatly depends on the process design,
like rules-based processes, and supportive technologies like
Special Monthly Compensation (SMC) calculators, that undergird
the system. Unfortunately, rules-based systems treat all
veterans the same and can be flawed by imperfect rulemaking and
application. This is the challenge for a rules-based computer
system; it does not have the human interaction to fully
understand the circumstances of a specific injury. The numerous
issues faced by veterans with catastrophic injuries create a
complex set of outcomes that cannot be easily reconciled by
logic-based systems that cannot appreciate nuance in disability
assessments. Calculators used in rules-based systems
historically fail to compute the right ratings for persons with
multiple issues. This type of decision analysis uses decision
trees that attempt to enable the rater to simplify and resolve
complex questions. This technique, however, can be problematic
when the analysis involves highly qualitative assessments that
are reduced to binary choices.
This processing model also handles claims for veterans who
have unique circumstances, such as financial hardship,
homelessness, or serious injuries or disabilities in special
``segmented lanes.'' The problem is the growth in the number of
claims considered ``complex'' since September 11, 2001. Complex
claims, according to VA, are characterized by the number of
issues per claimant filed, which has doubled to 8.5, when
compared with claims from past wartime eras. Also of
significance, of the 47,814 complex claims currently in the VA
inventory, over half are backlogged. In fairness, this number
has steadily decreased over time. But they still take too long
to adjudicate in many cases, particularly for our members with
terminal ALS.
PVA has developed the unique expertise in dealing with
complex claims because PVA membership is predicated on having
one of the most complex disabilities one can have: spinal cord
dysfunction, whether due to injury or disease. This can occur
due to trauma, ALS, MS, and other debilitating causes, and
often manifests in both primary and secondary residual losses
throughout the bodily systems, including the often under
regarded ``invisible'' aspects of injury like mental
impairment, need for attendant care, and helplessness. Complex
claims in this regard go beyond the mere number of issues.
Accurately rating these losses for claim purposes requires
expertise in neurology, physiatrist, urology, psychiatry, and
other specialty areas. But during Compensation & Pension (C&P)
examinations, it is common to see a general practitioner
authoring medical opinions on etiology, nature and extent of
dysfunction and cumulative effect of separate yet concurrent
disabilities. This is not a problem when the examiner devotes
enough time to understanding the disability and its nuances
before rendering a conclusion. However, this is not always the
case. As a result, when these opinions result in lower ratings
than the veteran should have, the ensuing debate takes on a
subjective hue when the regulations alone do not persuade a
decision reversal.
While VBA has instituted an evaluation system that assigns
greater weight to complex claims, these claims are often too
esoteric for journeyman raters, full of embedded issues and
ambiguities both legal and medical that lead to errors.
Moreover, these issues do not lend themselves exclusively to
rules-based analysis without inductive, common sense reasoning
in many cases, such as reasonable doubt provisions, which seems
to have slowly disappeared from training and guidance for new
raters. However working these cases requires a combination of
experience and open-mindedness to do so correctly.
For example, in one PVA case a veteran with ALS submitted
evidence supporting a higher rating for Special Monthly
Compensation at the R-2 rate from his treating physician, thus
verifying his need for skilled care in his home. Despite
substantiating his need with credible medical documentation, he
had to subsequently submit to a C&P exam at the VA's direction
where the examiner concluded he did not need skilled care on a
daily basis because he had little movement. Not only did the
examiner improperly contemplate movement as a basis for
determining need for care, VA misapplied its own regulation on
resolving doubt when two expert opinions conflict. When common
sense is applied, there is little doubt on the question of
whether a veteran with terminal ALS, an incurable, quickly
debilitating condition with foreseeable, inevitable
consequences, needs skilled care. This case out of the San
Diego VA Regional Office illustrates what happens when a
profoundly complicated set of disabilities, a lack of
expertise, subjective interpretation of regulations, and rules
that do not allow for a ``common sense override'' option
collide in a veteran's claim. In this instance, the veteran
presented enough evidence from his VA clinician, yet VA still
required a VA examination per inflexible VA guidance in such
cases (see M21-1MR Part IV, Subpart ii, Chapter 2, section H).
While PVA commends the Veterans Benefits Administration (VBA)
for implementing such initiatives as the Acceptable Clinical
Evidence option, which allows a rater to decide based on the
record in lieu of a C&P exam, this has not taken root system-
wide and needs to be.
It would also help to eliminate redundancies such as
unnecessary C&P exams that either corroborate the evidence of
record or create arbitrary bases for denying a claim. PVA has
long criticized VA's overuse of C&P examinations particularly
when the evidence of record already substantiates the claim.
These exams attempt to provide a snapshot of complex
disabilities based on cursory review of the medical history and
templates, called Disability Benefits Questionnaires (DBQs),
that ask a lot of questions but not always the right ones. For
example, ``Need for higher level of assistance'' is not asked
on the ALS DBQ, even though the terminal nature of disease
makes constant need for specialized care likely in virtually
every case. And with the addition of rules-based calculators
that make C&P exams a mandatory step in many instances, these
incorrect decisions are given the patina of unassailable
faultlessness. PVA is on record stating that rules-based
calculators and processing are not conducive to accurate
analysis where complex claims, as we describe them, are
concerned. They can be adequate starting points. But these
claims require experienced raters who, for example, would not
conclude that a veteran who can barely stand up due to lost
``useful'' function should be rated the same as a veteran who
can walk but with difficulty. Or that a veteran with paraplegia
cannot be considered in need of aid and attendance because he
manages his neurogenic bowel and bladder and dresses
independently thus no longer functionally disabled.
Experienced raters, not algorithms, best factor in the
nuances of special monthly compensation and areas of subjective
interpretation that can lead to an incorrect decision. For this
reason, as we asserted in June 2012 hearing testimony, reducing
the backlog through the use of technologies cannot come at the
expense of accurately rating the most complicated claims in the
inventory. This is why PVA trained its service officers to
fully develop a claim long before VA idealized the Fully
Developed Claim concept. Our service officers know what
questions to pose to an examiner, how to reconcile the medical
and legal ambiguities, and how to draw a path toward
entitlement for the rater from the time the claim is filed. But
not every rater, particularly the new ones, can or feel
empowered to see past the inflexible rules and seemingly
indisputable C&P examinations enough to question or deviate
when necessary.
Perhaps that is how it has to be in the grand scheme of the
entire backlog and we understand that rules are critical to
organizational success. But the exceptions are the rule for
PVA. A veteran with terminal ALS died in hospice while his
claim was pending before a ``Special Ops'' lane coach because
he needed a DBQ despite the fact that the evidence of record
supported entitlement. A utilitarian system that successfully
delivers benefits to one million veterans, but overlooks the
most vulnerable, is inconsistent with moral obligation derived
from Lincoln's promise to those who served our country. As VA
celebrates the success in reducing the backlog through the use
of new technologies and innovative processes, more attention
now needs to shift toward developing strategies for
adjudicating complex claims more timely and accurately.
PVA believes there are several things that can be done to
improve support to veterans needing SMC:
* SMC cases should be assigned only to the most experienced
raters and VA must ensure that new raters are properly trained
on SMC and its applicable regulatory doctrines.
* VA needs to allow for the application of a ``common
sense'' override when rules-based processes limit or preclude
necessary subjective analysis such as reasonable doubt or the
weight/credibility of evidence, or fail to reconcile
ambiguities in the medical evidence or legal applications
* It is critical that if denial of a complex claim is
predicated on a C&P exam, particularly in cases of terminal
illness or catastrophic disability, the reasons and bases must
detail how the weight of all evidence was assigned, whether
reasonable doubt applied or not, and whether the acceptable
clinical evidence option was considered in lieu of ordering a
C&P exam.
* VA must expand acceptable clinical evidence (VHA
Directive 2012-025) for nationwide implementation.
* And finally, VA must ensure the rules-based process
allows for and encourages the application of 38 CFR Sec. 3.102,
which defines ``Reasonable doubt'' doctrine. Accordingly,
``When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. Reasonable
doubt means one which exists because of an approximate balance
of positive and negative evidence which does not satisfactorily
prove or disprove the claim.'' (Authority: 38 U.S.C. 501(a))
Historically, due to the nature of our catastrophically
disabled membership, PVA has been the subject matter expert for
claims involving multiple injuries or conditions. PVA has
enjoyed the privilege of providing VA with help in field
studies and advice on processes that best meet the unique needs
of veterans with catastrophic injuries. PVA National Service
Officers have even participated in the training of VA claims
processors. This valuable service has tremendously benefited
both organizations and illustrates an important, enduring
partnership. PVA's success in claims processing has been due to
diligence in training our service officers and in understanding
the challenges faced by those with the most complex of cases.
VA must do the same. Data processing is no substitute for
education, training and understanding. We fear that as VA
continues to aggressively look to reduce the backlog, complex
claims may move further behind. While advances have been made
in processing theses claims for those most needing, we caution
the Subcommittee and VA not to become too satisfied with their
own success to not see those still left behind. PVA looks
forward to continuing to make VA aware of the need to keep
complex claims in the forefront and to ensure they are properly
and quickly adjudicated, particularly as they impact our most
catastrophically injured veterans.
This concludes my testimony. I will be happy to answer any
questions you may have.
Mr. Runyan. Thank you, Mr. Gillums.
With that, I will recognize Mr. Abrams for five minutes.
ORAL STATEMENT OF RONALD ABRAMS
Mr. Abrams. Thank you.
I have been involved in veterans' law for over 40 years.
The VA has faced huge backlogs before and the VA has had to
deal with reducing the backlog, adjudicating claims faster, and
in almost every instance, the error rate, especially the error
rate for complex claims, has gone up. You just simply cannot go
too fast when you have complicated claims.
The first thing we have to talk about is what is a complex
claim. Some claims by their very nature are complicated,
special monthly compensation, traumatic brain injury. In fact,
the regulation dealing with TBI is so complicated that some
people call it the Da Vinci code. Try and look at it sometime
and you will be impressed.
Some claims can be complex as they are developed by the VA
or as evidence from the claimant comes in, ancillary issues
arise, different theories of service connection come up. They
can become very difficult.
And some claims, more than a few and more than I like, can
become complicated because of VA error. And in those cases
veterans face a nightmare. Not only do they have to get the
right evidence before the VA, they have to overcome the unfair
denial which is an obstacle that stands in their path.
The worst type of VA errors are the result of premature
adjudications. Some VA ROs incorrectly adjudicate and
prematurely deny claims based upon inadequate evidence,
especially inadequate VA exams. These errors reveal for many
veterans that the claims process can be adversarial. Based on
my experience working for the VA for many years, working for
NVLSP, going on quality checks to over 40 VA regional offices
for the American Legion, who should be commended for doing that
work, shows to me that the error rate at the VA has been
consistently at least 30 percent in the various ROs. Sometimes
it is higher. It is unrealistic to assume that the VA will ever
get its real error rate to 98 percent.
Over 70 percent of the claims appealed to the Board of
Veterans Appeals are reversed, or remanded. And over 70 percent
of the claims taken to the Court are sent back because of VA
error. In fact, NVLSP wins over 90 percent of the claims that
it takes to the Court.
In its rush to judgment we have found that many ROs, VAROs,
prematurely deny or ignore many claims and potential claims.
Unfair premature denials cause unnecessary appeals and years of
delay before deserving veterans obtain justly earned benefits.
And even more important some veterans fall through the cracks.
Adjudicating many claims quickly does not do much good if many
of these adjudications are done in a premature manner and many
deserving veterans are unfairly denied. What will happen is
veterans will appeal, the backlog will eventually grow, and we
will be facing this over again.
I wish to commend the Under Secretary General Hickey for
her commitment to the fully developed claim program. I think it
is the best thing that the VA has tried in over 40 years and I
encourage it.
We suggest the following: the VA work measurement system,
which encourages people to prematurely adjudicate claims, has
to be overhauled even if Congress has to pass a law. The VA
needs more people to work these claims. In spite of electronic
this, and lanes, and all the other things the VA is trying to
do, which is a good thing, they do not have enough people. They
need more people to work the claims.
And finally the adjudication culture at the VA needs to be
changed. Many VA managers that we have met on our travels
unfortunately act like they are producing widgets rather than
adjudicating claims filed by real people. You saw the real
people here today. Their goal should not be prompt
adjudication. The goal should be a timely, accurate, and fair
adjudication. Which in the long run, not in the short run, is
the best way to finally adjudicate claims and reduce the
backlog. Thank you.
PREPARED STATEMENT OF RONALD ABRAMS
Mr. Chairman and Members of the Committee:
I am pleased to have the opportunity to submit this
testimony on behalf of the National Veterans Legal Services
Program (NVLSP). NVLSP is a nonprofit veterans service
organization founded in 1980 that has been assisting veterans
and their advocates for over thirty years. We recruit and train
volunteer attorneys, service officers from such veterans
service organizations as The American Legion, the Military
Order of the Purple Heart and the Military Officers Association
of America in veterans benefits law, and conduct quality
reviews of VA regional offices on behalf of The American
Legion. NVLSP also represents veterans and their families on
claims for veterans benefits before VA, the U.S. Court of
Appeals for Veterans Claims (CAVC), and other federal courts.
Since its founding, NVLSP has represented thousands of
claimants before the Department of Veterans Affairs (VA) and
the Court of Appeals for Veterans Claims (CAVC). NVLSP is one
of the four veterans service organizations that comprise the
Veterans Consortium Pro Bono Program, which recruits trains and
mentors volunteer lawyers to represent veterans who have
appealed a Board of Veterans' Appeals decision to the CAVC
without a representative. NVLSP has written educational
publications, such as the Veterans Benefits Manual (VBM), that
thousands of veterans advocates regularly use as practice tools
to assist them in their representation of VA claimants.
WHAT ARE COMPLEX DISABILITY CLAIMS
In general there are three types of complex claims:
* some claims, by their very nature, are very complicated;
* some claims can become complex as they are developed by
VA or as evidence from the claimant is submitted; and
* some claims can become complex because of VA error.
Inherently Complicated Claims
Claims involving entitlement to special monthly
compensation (SMC) and claims involving the evaluation of
traumatic brain injury or mental conditions can be very
complicated. (In fact, the regulation dealing with the
evaluation of traumatic brain injury (TBI) is so complicated
that some VA adjudicators call it the ``Da Vinci Code.'' (38
C.F.R. Sec. 4.124(a), DC 8045).) Other inherently complicated
claims include, but are not limited to, the evaluation of joint
conditions (see DeLuca v. Brown 8 Vet. App. 202 (1995); claims
for service connection for PTSD (includes claims for PTSD based
on military sexual trauma (MST)); claims for secondary service
connection; claims for service connection based on presumption
(see 38 U.S.C. Sec. 1101(3) and 38 C.F.R Sec. 3.309(a)
(2013); and claims for increase for a service connected back
disability.
Claims That Can Become Complicated
Most claims for service connection have the capacity to
become very complicated. Let me give you a few examples:
A. Let us talk about what appears to be a simple claim for
service connection for an arthritic joint condition (back,
knee, shoulder, ankle). Many veterans support their claims for
an arthritic condition by saying that they suffered from pain
ever since discharge. In many instances there is no objective
evidence of complaint or treatment of an arthritic problem in
service. Some VA adjudicators deny such claims. These denials
are wrong because this action constitutes a premature denial.
If the duty to assist is triggered (38 U.S.C. Sec. 5103A), the
VA is obligated to further develop the claim to determine if
the joint condition manifested to a degree of ten percent
within one year of discharge (see 38 C.F.R. Sec. Sec. 3.307
and 3.309(a)). The VA would be obligated to invite the veteran
to submit lay and medical evidence that would tend to support
the conclusion that the joint condition manifested to a degree
of ten percent within the presumptive period and medical
evidence linking the current disability to the symptoms
identified within the first year after discharge. While medical
evidence would be helpful, lay evidence alone can be enough to
support the finding that a joint condition manifested to a
compensable degree within the first year after discharge.
Generally, a medical opinion would be required to link the
veteran's current joint disability to the symptoms suffered
within the presumptive period. If service connection was
granted, the VA would have to establish the proper effective
date and evaluate the severity of the disability. These issues
can also be complicated.
B. Most claims involving entitlement to high levels of
special monthly compensation (SMC) are inherently very
complicated. Recently NVLSP worked on a claim for benefits that
dealt with entitlement to SMC.
a. The veteran was shot in the head while on a combat
mission in Iraq. As a result of his injuries, surgeons removed
part of his brain and skull. In total, he had undergone over
thirteen surgical procedures and had been a patient at six
military and civilian medical centers and continued to suffer
on a daily basis from the devastating effects from his tragic
injuries.
b. The VA issued an initial Proposed Rating on March 7,
2011 (the veteran at that time, was still in service waiting to
be discharged) which acknowledged eighteen different service-
connected disabilities. These disabilities included residuals
of traumatic brain injury (100%), a gunshot wound to the face
(80%), and loss of half of the visual field in each eye (50%).
The initial rating also awarded special monthly compensation at
the (l =) level based on the need for aid and attendance (l),
combined with a separately rated disability greater than fifty
percent (=). The VA also established entitlement to SMC ratings
under 38 U.S.C. Sec. 1114(k), for loss of use of the right
foot, and one for loss of use of a creative organ.
c. On April 5, 2011, the VA issued a second proposed
Rating. This rating established entitlement to SMC M.
Underlying this proposed special monthly compensation rating
was the veteran's need for aid and attendance (l), combined
with additional, separately rated disabilities of the same
etiology rated at 100% or more (next higher rate, to (m)).
These separately rated disabilities include: gunshot wound to
the left face, right eye, seizure disorder, scars, adjustment
disorder, temporomandibular joint disorder, left ear hearing
loss, tinnitus, loss of smell and taste, and seventh cranial
nerve dysfunction.
d. A law firm, assisted by NVLSP, (the law firm represented
the veteran on a pro bono basis) argued that the evidence of
record supported a higher level of SMC because he has (a) the
loss of use of both his right hand and right foot, (b) the need
for regular aid and attendance due to other independent
disabilities, and (c) the additional need for a higher level of
aid and attendance without which he would require residential
institutional care.
We argued that for the reasons stated below, the veteran
was entitled to compensation under 38 U.S.C. Sec. 1114(r)(2).
e. First, under 38 C.F.R. Sec. 4.71a and Diagnostic Code
5111, the veteran is entitled a 100% schedular evaluation based
on loss of use of both a hand and a foot.
f. Second, he is also entitled to special monthly
compensation benefits under 38 U.S.C. Sec. 1114(l) due to the
loss of use of both his right foot and right hand (38 C.F.R.
Sec. 3.350(b)). (The VA acknowledged the loss of use of the
right foot.) In addition, as a result of his traumatic brain
injury he also has functional loss of use in his right hand.
g. Third, he is also entitled to special monthly
compensation benefits under 38 U.S.C. Sec. 1114(l), based on
service-connected disabilities unrelated to his loss of use of
his right foot and right hand, that cause him to need regular
aid and attendance. The gunshot wound to his head triggered a
full range of other disabilities independent of his hand and
foot, including but not limited to seizures, vertigo, loss of
vision, loss of hearing, cognitive difficulties, mild loss of
memory, trouble swallowing, and partial paralysis in the face.
h. Fourth, because there are two separate, unrelated
special monthly compensation ratings under subsection (l), the
veteran is entitled to special monthly compensation benefits
under Sec. 1114(o). Further, his entitlement to compensation
under subsection (o) combined with his need for regular aid and
attendance require that VA grant him, at a minimum, a rating
under Sec. 1114(r)(1).
i. Fifth, considering the full range of his service-
connected disabilities that resulted from him being shot in the
head, he requires an even higher level of care than regular aid
and attendance under subsection (r)(1). As the record
indicates, the veteran would require residential institutional
care without daily personal health care services in his home,
supervised by a licensed professional. VA should therefore
grant the veteran a special monthly compensation rating
pursuant to subsection (r)(2).
j. Also, it appears that when Sec. 1114(t) becomes
effective the veteran will be entitled to special monthly
compensation benefits under subsection (r)(2) even without
proving any need for daily personal health care services in the
home. (Sec. 1114(t) became effective on October 1, 2011 after
the date of this submission).
k. Happily, before the injured service member was
discharged, the VA awarded benefits at SMC(r)(2) rate.
l. In this case, the excellent brief was not enough. When
the VA delayed in granting this claim I asked for an
explanation. I was told that in order for the VA to grant
SMC(r) the evidence needed to show loss of bowl and bladder
control. I was able to reach the supervisor of this VA
component and took her through the entire process. Eventually
she agreed with our analysis.
m. This severely wounded veteran need the help of a major
law firm and NVLSP to obtain, within a reasonable time, the
proper level of benefits. Not every veteran has access to these
resources. Therefore, it would be better for all veterans if VA
raters could learn the complicated VA rules.
C. VA errors can make simple claims complicated. For
example, suppose a veteran claims service connection for PTSD.
The alleged stressor or traumatic event is exposure to combat.
In some cases a VA regional office schedules a VA examination
(asking the doctor to determine whether the veteran suffers
from PTSD and to opine as to whether the current PTSD is linked
to a stressful event in service. In too many cases, the VARO
does not take the time to review the record in order to tell
the examiner whether or not the veteran was exposed to a
stressor in service. That is a decision VA adjudicators must
make. Because some VA examiners will not diagnose PTSD unless
they identify an in-service stressor they provide a negative
report to the VA (38 C.F.R. Sec. 3.304(f)). Therefore, the
claim for PTSD would be denied. If the veteran had a Combat
Infantry Badge (an award that shows combat with the enemy), the
negative medical opinion would be meaningless. In many cases,
after this error, the veteran would have to appeal to the BVA
or the CAVC. This could take years. A simple claim would turn
into a nightmare.
THE NON-ADVERSARIAL VA CLAIMS ADJUDICATION PROCESS
First, I want to stress the obvious. Complex claims for VA
disability benefits have a higher error rate than simple
claims.
As far back as 1991 the US Court of Appeals for Veterans
Claims (CAVC) held that ``Rather than defending against the
claims of veterans, the Secretary has a statutory duty to
assist claimants during the course of the ex parte and non-
adversarial claims resolution process at the regional office
and before the BVA.'' Manio v. Derwinski, 1 Vet. App. 140, 144
(1991). Under 38 C.F.R. Sec. 3.103(a) (2013) ``Proceedings
before VA are ex parte in nature, and it is the obligation of
VA to assist a claimant in developing the facts pertinent to
the claim and to render a decision which grants every benefit
that can be supported in law while protecting the interests of
the Government.''
Based on the experience of NVLSP, the most egregious VA
errors are a result of premature adjudications. For example,
the errors we have identified reveal that VA adjudicators
failed prior to issuing an initial rating decision, even to try
to satisfy the VA statutory duty to assist the claimant by
obtaining the evidence needed to substantiate the claim. The
VAROs incorrectly adjudicated and prematurely denied claims
based on inadequate evidence (especially inadequate VA medical
examinations).
Over the past 15 years, I have traveled to many VA regional
offices as part of a quality review team for The American
Legion. I have personally visited over 40 VA regional offices,
some more than once. My job, as part of the Legion team, was to
check the quality of adjudications at the various VA regional
offices. The Legion should be commended for spending the time
and money to do these reviews. Prior to that time, when I
worked for the VA part of my time was spent in what was then
called Statistical Quality Review (essentially VA Central
Office quality review). Working for the Compensation and
Pension Service, we checked the quality of adjudications in all
VA regional offices (ROs). In addition, I currently review and
approve or reject many BVA decisions that an NVLSP attorney
proposes that we appeal to the CAVC. Based on that combined
experience and based on the entirety of my work for NVLSP. I
can tell you the following:
* The current error rate is somewhere between 30 and 40%
(in some ROs it is higher). For example, the Legion quality
review team identified errors in 35% of the cases in
Indianapolis; 64% of the cases in Baltimore had errors; 31% of
the cases reviewed in Nashville had errors; and 64% of the
cases reviewed in Oakland had errors. (In the Legion reports
errors were described as problems or comments.)
* It is unrealistic to assume that the accuracy rate at the
VA regional offices will ever approach 98%. Please note that
over 70% of claims appealed to the BVA are reversed or remanded
and over 70% of BVA decisions appealed to the CAVC are reversed
or remanded. I should also note that NVLSP obtains a reversal
or remand in over 90% of the cases it takes to the CAVC.
* Many claims that should be adjudicated (or at least
invited) are ignored by VA adjudicators. The VA Claims
Adjudication Manual (M21-1MR) makes it clear that when
preparing a decision, the VA regional office adjudicator must
recognize, develop, and/or decide all issues, whether:
expressly claimed, implied, informal, potential, mandated, or
ambiguous. (See M21-1 MR PART III, Subpart IV, Chapter. 6,
Section 2.B.2 a. Recognizing Issues When Preparing a Decision.)
* The most common errors are:
- premature denials based on inadequate development;
o under evaluation of mental conditions;
o under evaluation of joint disabilities;
o failure to consider presumptive service connection; and
o failure to inform VA medical examiners what facts have
been accepted as true by VA adjudicators. (If the VA examiner
does not know that a fact must be accepted as true then the
medical opinion may be worthless because the VA examiner may
provide an opinion based on the wrongful premise that the
veteran's statement is not accurate because it is not supported
by other evidence of record.)
As you know, there is always tension between quantity and
quality. In fact, faced with a growing backlog caused by a
surge of claims from OIF and OEF veterans and with the
compounded impact of many years of premature adjudications that
forced claimants to appeal or file reopened or repeat claims,
the issue of quantity vs. quality has gained increased
importance. Unfair, premature denials cause unnecessary appeals
and years of delay before deserving veterans obtain justly
earned benefits. Adjudicating many claims quickly does no good
if many of these adjudications are premature and many deserving
veterans are unfairly denied. Many veterans will appeal and the
overall backlog will simply grow.
The most important and pervasive problem facing veterans
seeking VA disability benefits is the eagerness of some VAROs
to adjudicate claims before all necessary evidence has been
obtained. This is especially true for complex claims. For
example, some VAROs prematurely deny claims based on inadequate
VA examinations. In some cases, even where the VA examiner
clearly fails to respond to a specific question asked by the
RO, the examination report is not returned as inadequate.
Instead, the claim is adjudicated and denied on the basis of
the inadequate report. In other instances, claims are denied
before all service medical records are received. Other claims
are sometimes denied before the veteran has a fair opportunity
to submit independent medical evidence. These all-too-frequent
cases of premature denial result from an over-emphasis on
timeliness and a lack of accountability.
It is clear to NVLSP that the way the VA evaluates its
adjudicators and the way the VA awards work credit encourages
sloppy adjudication resulting in premature, unfair denials.
Therefore, the first thing those who manage the VA need to do
is to admit there is a real and very serious problem with the
quality of VA adjudications. NVLSP believes that the problems
within the VA claims adjudication system are so serious that
recent innovations such as paper-free or electronic claims
processing, and different ``lanes'' for specific types of
claims, while helpful, will not be enough to fix the problem.
Potential Solutions
I wish to commend the Under Secretary for Benefits, General
Allison A. Hickey, for her commitment to the Fully Developed
Claim (FDC) program. This FDC initiative could be the best
thing the VA has attempted in the last 40 years.
That said, the VA work measurement system has to be
overhauled so that there is a balance between quality and
quantity. Also, the VA needs to acknowledge the complexity of
its claims adjudication system and continue to increase the
number of adjudicators to work these claims. At the current
time, based on my 39 years working in veterans law and
especially my quality review experience, I can confidently say
that most regional office need more workers just to keep up
with the current workload. More adjudicators are desperately
needed if the backlog is to be reduced and initial claims and
appeals are to be accurately adjudicated within a reasonable
amount of time.
The following suggestions should be considered:
1. The VA should be required to submit to an independent
quality review to validate the quality of work performed in the
individual VA regional offices.
2. The pay grade levels of VA raters and Decision Review
Officers should be raised on the condition that these employees
are held accountable for the quality of their work (rewards for
accurate prompt adjudications, and adverse personnel action for
unacceptable levels of quality).
3. Congress needs to continue to provide additional funding
for more adjudicators.
4. Adjudicating from electronic records is a laudable goal
if complete records can be obtained and if the database permits
logical searches.
5. Finally, the adjudication culture at the VAROs needs to
be changed. Many VA managers unfortunately act like they are
producing widgets rather than adjudicating claims filed by real
people. Their goal should not be just prompt adjudication; the
goal should be a timely, accurate and fair adjudication - which
in the long run is the fastest way to finally adjudicate
claims. I want to note that the current VA management is trying
to do this but more needs to be done.
NVLSP is not demanding perfection from VA managers and
adjudicators. NVLSP, however, feels that unless the
adjudication culture is changed, unless the VA can hire more
adjudicators and unless the VA changes the way it counts its
work, there will be no significant improvement.
Executive Summary
In general there are three types of complex claims:
(1) some claims, by their very nature, are very
complicated; (2) some claims can become complex as they are
developed by VA or as evidence from the claimant is submitted;
and (3) some claims can become complex because of VA error.
Examples
(1) Inherently complicated - claims involving special
monthly compensation; (2) claims that can become complicated
such as claims for direct and presumptive service connection;
and (3) claims that VA errors make complex (claims that are not
properly adjudicated and prematurely denied).
Non-Adversarial claims adjudication process
(1) Complex claims have a higher error rate; (2) there is
an ex parte and non-adversarial claims resolution process at
the regional office and before the BVA; (3) the most egregious
VA errors are a result of premature adjudications; (4) the
current error rate is somewhere between 30 and 40%; (5) it is
unrealistic to assume that the accuracy rate at the VA regional
offices will ever approach 98%; (6) many claims that should be
adjudicated (or at least invited) are ignored by VA
adjudicators;
The most common errors are:
(1) premature denials; (2) under evaluation of mental
conditions; (3) under evaluation of joint disabilities; (4)
failure to consider presumptive service connection; and (5)
failure to inform VA medical examiners what facts have been
accepted as true by VA adjudicators.
Solutions
(1) The VA should be required to submit to an independent
quality review; (2)
Make VA raters and Decision Review Officers accountable for
the quality of their work; (3) Hire more VA adjudicators; and
(4) The adjudication culture at the VAROs needs to be changed.
Mr. Runyan. I thank the gentleman. And with that, I know we
have pending votes on the floor but we may get to questions
after Mr. Hearn does this. If not we will go into recess and we
will come back afterwards. So Mr. Hearn, you are now recognized
for your testimony.
ORAL STATEMENT OF ZACH HEARN
Mr. Hearn. Good afternoon, Mr. Chairman, Ranking Member
Titus, and members of the committee. We are here to talk about
the implementation of special operations lanes. VA created
these to address accuracy. What we never talk about, though, is
why accuracy matters.
VA estimates they will process over a million claims again
this year. The difference between their goal of 98 percent
accuracy and even 97 percent is over 10,000 veterans who may
not get the benefits they earn. We all know the real gap in
accuracy is far more than one percent, as well. We are talking
every year a small city in America full of veterans who may not
get the benefits they earn through their hard years of service.
Each of those veterans is a story and a family too, unique in
its own way like the stories we just heard from the first
panel. That is why the American Legion is constantly raising
the importance of accuracy. Because for all those veterans who
wind up on the wrong end of those errors VA's accuracy rate may
as well be zero.
Why are there still problems? It is a complicated system.
It does take experience and attention to detail to get things
right. Putting experienced personnel on the tougher claims is a
good start. When VA has the ability to ensure this is
consistently applied across the country with the right
personnel to execute this plan it will probably help with
improving the figure. But there are still some system problems
which hamper VA's ability to get it right for veterans.
I have been fortunate to travel to many VA offices as part
of the American Legion's regional office action review program.
For over 15 years we have been conducting these week-long
intensive visits to VA offices to review claims and assess VA
accuracy, and to see inside the offices outside the Beltway and
get a true picture of how the implementation works in the
field. Through these visits we have seen patterns. For example,
consistency from one office to another office leaves much to be
desired. Policies embraced by leadership in one office may be
given lower priority in other offices. And with mixed
commitment you get mixed results.
VA also seems to struggle with finding the right balance of
development for claims, which leads to adjudication errors. You
cannot build a house on a shaky foundation. On our review
visits we examine a sample of dozens of recently adjudicated
claims for veterans the American Legion represents. Often the
claim has either been underdeveloped or overcomplicated. Both
of these early errors are a recipe for later errors later in
the process.
VA has a tendency to under develop claims and leave
adjudicators with too little information to make a fair
judgment on service connection or rating. For example, in
April, 2013 we visited the Nashville Regional Office. According
to the April 27th Monday morning workload report Nashville had
a 95 percent accuracy rating for the previous three months.
During the review of 22 cases we found 11 where we commented
regarding case development to include seven with errors.
Our review paints a far dimmer picture of Nashville's
accuracy than indicated in the workload report. In one case a
veteran was seeking service connection for PTSD. Evidence
within the file obtained from a VETS Center indicated the
veteran served in the Persian Gulf during Desert Storm and was
chronically fearful of death due to chemical warfare.
Additionally, the VETS Center exam noted treatment for symptoms
associated with PTSD in service and at the time of the VETS
Center exam had extensive symptoms associated with PTSD. No
exam was provided by VA. A rating decision denied the veteran
service connection for the condition due to a lack of
diagnosis. Yet if a veteran exhibits symptoms of a condition a
VA compensation and pension exam should be afforded. The
veteran exhibited symptoms that should have triggered an exam.
An exam was never scheduled and instead VA opted to simply deny
the veteran benefits without due process.
Conversely sometimes VA does not seem to know when to stop
and overcomplicates a claim. In June we visited the Reno RO.
The June 3rd workload reports indicate they had a 93.2 percent
accuracy rating. Our review of cases resulted in comments
regarding the adjudication of 59 percent of reviewed claims for
VA benefits. In one instance a veteran was seeking service
connection for PTSD. During a July, 2011 VA C&P exam the
examiner linked the veteran's condition to military service.
The regional office returned the exam results in August, 2011
to the examiner to again restate his opinion and again the
examiner stated the veteran's PTSD is related to service. After
the second review VA finally adjudicated the benefit in
September, 2012 and sent the notice letter in January, 2013. VA
conducted two exams but only one was necessary and it took over
two years from the date of the first exam to adjudicate the
claim, and then another four months to notify this veteran.
The American Legion believes these problems could be
mitigated by adopting some strategies our National Commander
Dan Dellinger advocated for during his testimony before
Congress this fall. Fixing the work credit system that
currently places more emphasis on actions completed than
actions done right; aggregating common errors to develop a
training plan; these are steps we want to see taken. Fixing the
accuracy problem needs to start with the right mind set. The
mind set should not be achieving 98 percent accuracy. The mind
set needs to be I need to get every step right for this
veteran. Until the problem gets fixed we are losing the good
faith of a city of veterans every year.
Thank you and I will be happy to take questions.
PREPARED STATEMENT OF ZACH HEARN
According to a February 2013 Congressional Research Service
(CRS) report, service members have either suffered or have been
diagnosed with the following complex conditions from 2000-
20121:
* 131, 341 diagnosed with posttraumatic stress disorder
(PTSD)
* 253,330 diagnosed with traumatic brain injury (TBI)
* 1,715 underwent amputations due to service in Iraq and
Afghanistan
The Department of Veterans Affairs (VA) states 20 percent
of women and one percent of men indicate they suffered military
sexual trauma (MST) in service2. VA defines MST as ``any sexual
activity where you are involved against your will.'' A May 2013
Associated Press article indicates in 2012, more than 85,000
veterans sought treatment due to injuries or diseases resulting
from MST; 4,000 sought VA disability benefits as a result of
the condition3.
The nature of conditions such as PTSD, TBI, MST and claims
that require special monthly compensation (SMC), are often
complex in nature and require a deeper understanding of VA
disability benefits than many other types of VA disability
claims. In order to achieve Secretary Eric Shinseki's laudable
goal of 98 percent accuracy on all claims by 2015, VA needed to
take measures to ensure these complex claims were handled by
people experienced and expert enough to reduce the risk of
error.
To this end VA established segmented lanes in each of its
regional offices designed to provide a specialized approach to
claims' adjudication depending on the nature of the claim or
the manner that the veteran or dependent sought disability
benefits. The tough claims would be developed and adjudicated
in the ``special operations'' lane with senior VA raters
adjudicating these complex claims.
In concept, this practice of putting the best, most
experienced personnel on the task of adjudicating the most
difficult claims is laudable and logical. The American Legion
supports and even utilizes the idea of ensuring newer, less
experienced employees handle simpler, more straightforward
claims while experienced hands do the heavy lifting on the more
complicated and sensitive claims.
The American Legion has conducted Regional Office Action
Review (ROAR) visits to VA Regional Offices (VAROs) for over 15
years, performing quality review oversight and evaluating work
procedures during an intensive weeklong process. Recognizing
The American Legion's expertise in this area as the only
Veterans' Service Organization with so comprehensive a review
process, the White House contacted The American Legion to
coordinate an evaluation of the Fully Developed Claims (FDC)
program over 2012 and 2013. These visits were performed in
conjunction with the White House, Joining Forces, VA Central
Office officials, and later with Disabled American Veterans
(DAV) as the program expanded.
The American Legion had the opportunity to visit eight
VAROs beginning in December 2012 and concluding in June 2013
during the implementation phase of the FDC program. In addition
to examining the FDC program, American Legion experts discussed
issues surrounding FDC with VA raters and senior staff, to
include the implementation of the segmented lanes by VA. As
always with ROAR visits, recently adjudicated claims under
American Legion Power of Attorney (POA) were reviewed by Legion
staff and Legion accredited attorneys contracted through the
National Veterans Legal Services Program (NVLSP) to gauge VA's
accuracy and check for adjudication and development errors.
Unfortunately, during these visits, it became clear through
discussion with senior VARO staff that experienced staff is at
a premium. Much of the staff has less than five years
experience and may not have either the experience or knowledge
base to accurately adjudicate complex claims. While the concept
of the ``special operations'' lanes is still sound, performance
in individual VAROs may be inconsistent, because the experience
base necessary to implement the plan may not exist.
Developing statistics on VA's current accuracy rating
regarding complex claims such as PTSD, TBI, MST, and claims
that involve SMC presents a challenge. While VA's Monday
Morning Workload Report includes VA's accuracy for claims'
adjudication, it fails to include accuracy ratings for the
types of claims adjudicated; therefore it is difficult to
determine whether this approach is helping improve the
adjudication of these special claims.
Furthermore, VA's accuracy statistics from the Monday
Morning reports are not consistent with the review of recently
adjudicated claims as conducted by the American Legion ROAR
teams. When visiting VAROs over the past year, ROAR staff
reviewed 260 claims adjudicated by the VAROs. Of those 260
claims, 55 percent were identified as having errors,
particularly regarding the development of the claim. This
statistic is in stark contrast to the approximate 90 percent
accuracy rating in claims' adjudication indicated by VA's
Monday Morning workload reports.
For conditions such as PTSD and TBI, it is not simply the
accurate adjudication of the individual condition that veterans
face but also the conditions that may have either manifested
secondary to either PTSD or TBI or were aggravated by the
conditions.
Cardiovascular, gastrointestinal and musculoskeletal
conditions have been identified as being possibly related to
PTSD4; yet The American Legion's national appeals
representatives at the Board of Veterans' Appeals (BVA)
routinely have claims remanded by BVA due to VA's failure to
consider the relationship of condition such as hypertension and
gastro esophageal reflux disease (GERD) to PTSD. This is
particularly frustrating given the support for this link is in
VA's PILOT database for PTSD.
When VA is not under-developing claims, they can be prone
to over complicating claims that should be simple.
The American Legion's network of over 2,900 accredited
service officers often come across claims needlessly delayed
while VA continues to seek additional records for conditions
already adequately reflected in the record, or orders
extraneous exams long after medical examinations have connected
a current condition to the veteran's service and displayed the
level of disability to a degree sufficient to enable rating the
claim. These needless exams and record searches can add months
or even years to a veteran's wait times.
In order to achieve 98 percent accuracy, The American
Legion believes VA must develop a full understanding of the
strengths and weaknesses of its adjudicators and the common
errors commitment systemically in the claims system. The
American Legion believes through the data able to be tracked in
the VBMS system, decisions of the Court of Appeals for Veterans
Claims (CAVC), the Appeals Management Center (AMC) and the BVA,
VA is sitting on a goldmine of data about where they can work
to improve accuracy, yet this goldmine remains untapped. The
American Legion would like to see VA develop a system to
analyze the vast trove of error information, track it, and use
it to develop training to improve results. In short, to ensure
the highest reward for the training investment, VA should
identify areas that training is required for its raters and
provide specific training based upon the nature of the claim or
condition and the identified common errors with those types of
claims.
When The American Legion asked VA if they were tracking
these statistics internally, VA responded: ``We currently do
not post or provide quality data based solely on diagnostic
codes.'' If VA is collecting data on accuracy of adjudication
based upon diagnostic code, it would be helpful for determining
the success of programs such as the ``Special Operations''
lanes if this data was released for public review.
The American Legion believes VA should provide better
information regarding VA disability claims in a public venue5.
Veterans and their families should have the opportunity to know
the accuracy of adjudications.
As the individual conditions treated by the ``special
operations'' lanes are considered, The American Legion is
deeply concerned not only about the statistics and effects of
MST, but also the manner that claims associated with MST are
adjudicated. As disturbing as the statistics regarding MST are,
the manner in which the claims are adjudicated is equally
disturbing. A fact sheet published by VA states6:
Department of Defense forms used in reporting incidents of
sexual assault or harassment, as well as investigative reports
during military service are direct evidence to support these
claims. However, VA knows that events involving personal
assault or sexual trauma are not always officially reported.
Therefore, VA has relaxed the evidentiary requirements and
looks for ``markers'' (i.e., signs, events, or circumstances)
that provide some indication that the traumatic event happened,
such as
* Records from law enforcement authorities, rape crisis
centers, mental health counseling centers, hospitals, or
physicians.
* Pregnancy tests or tests for sexually transmitted
diseases.
* Statements from family members, roommates, fellow service
members, clergy members, or counselors.
* Request for transfer to another military duty assignment.
* Deterioration in work performance.
* Substance abuse.
* Episodes of depression, panic attacks, or anxiety without
an identifiable cause.
* Unexplained economic or social behavioral changes.
* Relationship issues, such as divorce.
* Sexual dysfunction.
In July 2010, VA changed its regulations regarding the
evidentiary requirements for veterans seeking disability for
PTSD. Realizing that veterans were often facing difficulties
providing stressor statements that could not be corroborated by
VA, VA simplified the adjudication through ``eliminating this
time-consuming requirement where the claimed stressor is
related to `fear of hostile military or terrorist activity,' is
consistent with the places, types, and circumstances of their
service, and a VA psychiatrist or psychologist, or contract
psychiatrist or psychologist confirms that the claimed stressor
is adequate to support a diagnosis of PTSD.7''
Considering the negative attention the Department of
Defense has received regarding the manner that it investigates
and takes appropriate actions regarding MST incidents and the
number of incidents unreported to authorities, it is plausible
a veteran who was the victim of MST would not have the
necessary evidence as indicated in VA's fact sheet regarding
the adjudication of these claims to support the granting of a
disability benefit associated with MST. Realizing that latitude
should be afforded to veterans who were MST victims, The
American Legion urges VA to ``apply reduced criteria to MST-
related PTSD to match that of combat related PTSD.8''
It's time to treat the survivors of this horrible crime the
same way we treat the survivors of war.
Developing a plan to improve accuracy is essential because
it has a definite and measurable impact on the lives of
veterans. It is sometimes difficult to put the importance of
accuracy in perspective, and to realize the scope of the impact
of accuracy on these claims, consider the following statistics.
As previously noted, the February 2013 CRS report indicated
386,386 servicemembers diagnosed with PTSD, TBI, and/or
amputations. If each veteran diagnosed with these conditions
sought service connection, even utilizing VA's favorable 90
percent adjudication accuracy rating, 38,638 veterans would
either not be receiving service connected disability
compensation or would be underrated for these conditions. If
the accuracy of these claims were closer to the accuracy levels
documented by The American Legion in the past 12 months during
ROAR visits, over 212,000 veterans - roughly the size of Reno,
Nevada9 - would either not be receiving service connected
disability compensation or would be underrated for these
conditions. For those veterans, VA's accuracy rate might as
well be zero.
Veterans suffering from PTSD, TBI, amputations, or MST are
often the most vulnerable veterans. Mobility, employment, and
treatment are just some of the many issues that these veterans
may face. With denial of these benefits, the opportunity for VA
health care may not exist. Furthermore, denial of these
benefits could exclude veterans from additional benefits they
are entitled to, such as federal hiring preference and
elimination of the VA funding fee for VA mortgages and VA will
have failed to honor Abraham Lincoln's call ``to care for him
who shall have borne the battle and for his widow, and his
orphan''.
On behalf of our National Commander Daniel M. Dellinger,
and our 2.4 million members, The American Legion thanks this
subcommittee for their diligent attention to the disability
benefits process. The American Legion will be watching closely,
and hopes to work closely with both VA and Congress to ensure
the ultimate outcome is in the veterans' best interest.
For any questions regarding this testimony please contact
Ian de Planque, Deputy Legislative Director of The American
Legion at (202) 861-2700 or [email protected]
1 CRS Report for Congress, U.S. Military Casualty
Statistics: Operation New Dawn, Operation Iraqi Freedom, and
Operation Enduring Freedom (Washington, D.C., February 2013),
pp. 5-10.
2 http://www.ptsd.va.gov/public/pages/military-sexual-
trauma-general.asp
3 http://www.nydailynews.com/news/politics/military-sexual-
assaults-heavy-toll-veterans-article-1.1349140
4 http://www.ptsd.va.gov/professional/pages/ptsd-physical-
health.asp
5 Resolution 99: Increase the Transparency of the Veterans
Benefits Administration's (VBA)
Claims Processing, - AUG 2012
6 http://www.benefits.va.gov/BENEFITS/factsheets/
serviceconnected/MST.pdf
7 http://www.va.gov/PTSD--QA.pdf
8 Resolution 295: Military Sexual Trauma, - AUG 2012
9 http://quickfacts.census.gov/qfd/states/32/3260600.html
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Mr. Runyan. Thank you, Mr. Hearn. And seeing that there is
probably less than five minutes left on the clock on the floor,
we are going to have to go into recess, and be back in half an
hour to 40 minutes. So as of now the committee stands in
recess.
[Recess.]
Mr. Runyan. The subcommittee will come to order and we will
begin a round of questioning and I will start that off. And my
first question will be for Mr. Abrams. You note in your written
testimony that one manner in which claims become complex is
because of VA error. Cases of this sort are often appealed and
then remanded, often more than once, further increasing the
complexity of the claim procedurally. Number one, can you
elaborate on the common types of errors you see which causes
claims to become more complex due to VA error on appeal? And
number two, do you think that greater focus on appealed and
remanded claims would assist VA in learning from its mistakes
and making less of these types of errors in the future?
Mr. Abrams. Yes, I can. Let me give you an example. Suppose
a veteran files a claim for PTSD. The veteran alleges that he
suffered a stressor when exposed to combat. The veteran's
service records show a combat infantry badge, which means the
veteran was in combat. However, the VA in an effort to go fast
sets up an examination and fails to tell the medical examiner
to accept as true the fact that the veteran was exposed to
combat. The VA examiner looks at the file, does not see any
evidence of a stressful incident in service, does not know how
to read a DD-214, and determines that he could not diagnose
PTSD without a stressor. Therefore he writes a negative medical
opinion and diagnoses the veteran with anxiety disorder or
something like that. The VA then denies the claim. To resolve
that claim could take five to eight years. And the VA needs to
take the time at the start, this is just a simple error, I
could get into complicated ones and we would be here much too
late. But that is a simple error that can be fixed if the VA
takes the time at the start to tell the doctor what evidence to
accept as true. That is not for the doctor to determine, that
is for the adjudicator, the VA adjudicator to make that, you
know, finding.
Your second question was if they got more involved, I am
not sure what you mean by more involved? With remands?
Mr. Runyan. If they paid closer attention to the process.
Mr. Abrams. Well they should. They need to analyze the
types of remands that come back from the Board and take action
to train on that. We certainly look at thousands of cases a
year and we keep a list of the common errors that the VA makes
that we can win at the Court for. And in my testimony we listed
some of those that you can see. But I am hoping that the VA
does that. I am not sure that they do.
Mr. Runyan. Thank you. And again for Mr. Abrams, and Mr.
Gillums maybe, you both provided examples in your written
testimony of issues with VA adjudicators properly calculating
the amount of special monthly compensation for severely
disabled veteran. Why do you think that calculating SMC is so
problematic for VA adjudicators?
Mr. Abrams. Do you want me to answer that first?
Mr. Runyan. Please. Yes, please.
Mr. Abrams. First of all in my experience, and I think you
have staff members who have traveled to, you know, ROs that
have seen this too, SMC is inherently a complicated issue.
Second, there are some things that the VA looks for magic words
for that are not there. In the case I wrote about in my
testimony the veteran's military doctor said he had lost all
function in his right hand and he had lost the use of his right
foot. The VA did not conceded loss of use of the right hand
because the doctor did not say the magic words. When we
contacted the doctor the doctor changed his written comments
and said he had lost the use of the right hand. Well loss of
use of a right hand and loss of use of a foot generates an L,
SMCL. He already had an L because he was in need of A&A because
his traumatic brain injury. This is a man who was shot in the
head in Iraq, had 18 service-connected conditions, operates on
a grade-school level, has tubes in his head that fluid comes
out of, has terrible scars on his face, lost the sense of taste
and smell, and is, you know, has suffered tragic wounds. I got
involved because I wanted to help this guy. My heart went out
to him. And even after we produced clear evidence that he
should get SMCR2, slam dunk, the VA did not act. So I finally
was able to reach the component of the VA that does that work
and I asked them why action had not been taken. And they told
me they were, that they were looking for loss of bowel and
bladder control. And I said that is not relevant, you do not
need it. He already qualifies. And the lady was able to hear me
out and I took her through the regulations and statutes, which
would take me a long time to go through, I wrote it up. And the
veteran ended up getting the R2. It is on our website if you
want to go look at the whole thing. We had a mix of the VA,
like the band in Animal House that marched into the wall, it
did not have loss of use, it only had loss of function. They
were not going to accept those words. Kind of silly.
But secondly the people that were doing the work did not
know the law. The VA needs to do more to train people to
understand SMC. The PVA, the DAV, the Legion, MOPH does a lot
of work on that issue. And if you look in our textbook we have
a formula that service offices in VA can use to properly
evaluate. It is complicated and you have to look at it each
time. Thank you.
Mr. Runyan. Thank you. Mr. Gillums?
Mr. Gillums. In order to effectively adjudicate an SMC
claim you almost have to have an intuition for things that are
pretty abstract. Like how do you measure need? In one case you
will have a veteran with ALS. Because he or she has trace
function in their legs, or can barely stand, the rater will
find that the veteran has useful function of legs. And we argue
it has to be useful in terms of daily living. And so a lot of
it is over time it will be cultural. This culture, this new
crop of raters are being trained to follow rules.
I will give you an example. If a veteran presents with a
letter from his clinician saying that he needs skilled care,
that letter will trigger not some deliberation on the rater's
part. It triggers the need for a C&P exam. The C&P examiner
will render an opinion as to whether the skilled care is needed
or not. And depending on what the C&P examiner says will
dictate whether the claim is accepted or denied. The problem is
in the past if you were a trained rater and you understood SMC,
you knew how to weigh evidence. You knew how to weigh two
conflicting medical opinions and in that case it should be
resolved in favor of the veteran. Well increasingly this
contemplative aspect of rating SMC is being pushed out of the
culture, being pushed out of the process. And so there is no
contemplation of evidence. It is either there or it is not.
This person can either walk because he has got three out of
five function, or they cannot with no exploration of whether it
is useful or whether the three out of five results in multiple
falls because the veteran tries to stand but cannot and incurs
subsequent injury.
So a lot of it has to do with the fact that I believe the
VA is going away from this inductive reasoning way of training
its new people that probably made claims adjudication a bit
longer, but it was more accurate if you got it right the first
time. And so that is my insight.
Mr. Runyan. Thank you. And I recognize Ms. Titus for her
questions.
Ms. Titus. Thank you very much. I will ask Mr. Gillums and
Mr. Hearn two questions. First, we have heard a lot about
putting these complex cases in these lanes: easy, medium, and
hard. I understand the value of that. But I wonder if that is
really effective. Is that not oversimplifying? Would we be
better off to nuance it a little more than that? Are we really
creating a system that is going to produce more errors down the
road and contribute to the appeals backlog? That is my first
set of questions.
Second, I would go back to something I mentioned earlier:
rate as you pay. We have talked about complex cases. Would it
not help veterans that as you rate some of the easier aspects
of these cases that have a number of different problems, that
veterans get paid for those as you rate them instead of waiting
until the end?
Mr. Gillums. I think the lanes process has worked. The
field staff that work for me like it. They like being able to
go to somebody who is ostensibly a specialist in that type of
claim, whether it is a Post Traumatic Stress Disorder, military
sexual trauma, one of our severe disability cases. So it has
worked. It really depends on the people, though. It really
depends on how it is managed. And that can vary from regional
office to regional office. Every regional office is not doing
the wrong thing. A lot of them are doing the right thing. It is
the ones that we hear about, though, where it does not matter
what process they have in place. If the people are inadequately
trained the greatest process in the world will not help them.
To your question about the pay as you go, I think that for
veterans who just need relief, they need some resources, it
might be okay. My fear though is that when you pay a veteran,
let us say a veteran gets that 100 percent rating, the
mentality will be you have got your 100 percent rating, what
more do you want? We have got you that, why are you coming back
to us? Or that is going to be counted as a completed claim. I
mean, how do you monitor completion of that claim? If, you
know, the veteran is 100 percent and getting a check, there is
still a lot of work that needs to be done in our cases. But you
know, but we would have to make sure that there is no creeping
standard where if they are getting paid that kind of sits on
the back burner.
Mr. Hearn. This past year when we were going out and doing
those trips for the FDC and we visited, to include the one
where we visited in Reno, we did discover that it did bring
some order to the regional office by having those segmented
lanes. One of the things, though, that when we went out there I
would ask employees different questions. And one of the ones
was how much experience do you have? And it was overwhelming,
and I would talk to coaches and some more middle management and
senior staff, and then talk about the relative greenness, I
guess, of the staff at that regional office.
Now I have heard senior leadership from VA say on repeated
occasions that, well, the effects of the Nehmer case and the
increase in claims due to Nehmer has affected the backlog. And
then we have heard conversation about 9/11 and the increase in
cases from there. But the one thing that no one seems to
discuss is that you cannot beat back the hands of father time.
And that we have now hit an era in this country where baby
boomers are retiring in larger numbers. Now we did not go back
and, they did not balloon the VA, I guess, at the time when
they should have. And so now you have got this knowledge
vacuum, I guess, in the regional office. So there just is not
that much, there are not enough people, A, but B, there is not
enough experience there. So it is, yes, it does help. But I
think a lot of it, too, is that they just simply do not have
that much experience within that regional office.
And then to go to the rate as you pay, I do think that it
would be beneficial. If you think about the effects that you
could if let us say somebody is trying to get service connected
for three or four conditions, and you get them to the 50 or 60
percent, now they have got access to free healthcare through
VA. In this age of ACA that is a very good avenue for them.
I also think that in the cases of preference for federal
employment when it comes to issues dealing with VA mortgages
and not having to pay the funding fee, of course these are
important. And also you are getting money into the veteran's
pocket. And so I do see the benefits. I agree, there probably
are some concerns that we should look at as to how VA would
monitor this and make sure that cases and claims are not just
being set by the wayside while other things are occurring. But
it is something worth considering, I think.
Ms. Titus. Thank you.
Mr. Abrams. I would like to add something.
Ms. Titus. Thank you. Is that all right, Mr. Chairman?
Mr. Abrams. It is the policy of the VA that when it has
enough evidence to pay partially, it pays. The problem is that
the workers do not get any work credit and therefore they are
not encouraged to do it.
Ms. Titus. Right.
Mr. Abrams. And we find many, many cases. So it is not a
matter of VA policy which says when you have enough evidence
and the veteran should be service connected, pay them at this
level, and then when we get more we will, you know, up it. They
do not want to take the time to do it because they are measured
by how many cases they do, which gets back to my point of the
work measurement system. And Sherman's point that if you give
somebody something maybe he will go away is the thought and we
will not have to, or she, and there will not be any more to do.
Ms. Titus. Mm-hmm.
Mr. Abrams. So they really want to get rid of the case at
that point. Thank you.
Ms. Titus. Thank you.
Mr. Runyan. I thank the gentle lady. Mr. Michaud?
Mr. Michaud. Thank you very much, Mr. Chairman, and Madam
Ranking Member for having this very important hearing.
Information that the VA has provided us recently suggests that
simply breaking out the work load into what they call those
segmented lanes resulted in a ten percent processing increase
during the first 60 days. Also easy claims saw an increase in
timeliness of 100 days faster than the special operation
claims. However, we know that VA continues to do a poor job in
handling some of our most challenging claims. As the VA OIG
noted in their testimony, in their first round of inspections
31 percent of the TBI claims reviewed showed that staff had
made errors. After informing staff of errors and VA taking
action, the VA OIG returned to note that 29 percent of TBI
claims reviewed were found to be in error. And you look at 12
of the 20 offices reviewed were non-compliant with VBA's own
policies for two consecutive inspections. They also noted that
even after extreme simplification of PTSD claims, five percent
of these claims are still incorrect.
In my mind, you know, the facts speak for themselves, that
we need to take the segmented lanes a step further by creating
a few, you know, specific offices that specialize and focus on
complex claims like TBI and PTSD and MST. These offices need
specialists that are aligned in cross-functional teams but
focused and trained in extremely complex cases. I believe that
most of you at the table support H.R. 2088 that would create
Centers for Adjudication Excellence. And my question, I will
start with Mr. Gillums, in your testimony you articulate the
problem with underqualified individuals handling complex
claims. In your opinion would we be better off if we
specialized in these complex medical conditions? And the other
two panelists can answer that as well.
Mr. Gillums. I do not remember how I characterized it but I
think it is less about qualifications in some of the cases I
have seen and more about the rules that constrain their ability
to make judgments using the experience that they might have
accumulated over the years. The rules are just different. So
even in cases where you have got somebody who is qualified, the
rules are different. The rules say you have to do these steps,
you can no longer exercise common sense. If it says hospice,
and common sense says that that is probably skilled care, you
still have to ask for an exam otherwise the rating stands. That
is a wrong rating. It is an inaccurate rating. And so that is
where you get an error in that case. You do not exercise
reasonable doubt. That is an error. You have to exercise
reasonable doubt when the evidence is in equipoise. And they do
not do that. So that is an error of law. So it really depends
on a convergence of both an inexperienced corps of new raters
as well as raters who have the knowledge and experience who do
not have the freedom to exercise that judgment when it is
necessary.
And if you were, you know, sort of to compartmentalize that
knowledge it really just depends on how you run it. If it is,
if they are allowed to exercise that qualitative, deliberative
thought process as they look at these claims in these
compartmentalized Centers of Excellence, then it would work.
But I do not think that is necessary. I think you could do the
same thing with your special ops lanes but just give them the
ability to think and make decisions, exercising good judgment,
versus having rules dictated as a quality review standard.
Mr. Michaud. Mr. Abrams?
Mr. Abrams. Thank you. First of all, I think the essence of
fairness is time. If we set up lanes and they are pressured to
go real fast, it will not matter if they are the most
knowledgeable people on the planet. They will make errors.
Secondly, you are taking the veteran's claim away from his
local representative. The American Legion or other service
organization representative in Boise, Idaho is not going to
have access to the file or deal with the raters if the case
goes to Denver. I am making that up, but that is a problem.
In any case until you fix how they count their work, these
are fixes that sound good on paper but are not going to make a
major impact. That is the first thing to do. It sounds great
but I also worry that if people are trained to deal in SMC, and
that is all they do, then the rest of the VA raters are not
going to know SMC. And unless they are trained they will only
have a small component of people to do it. There is a lot of
pros and cons to do it.
It is worth a try if we can also implement some way to give
them the time to do it or to hire a lot more people to help. I
keep saying that, a lot more people. Thank you.
Mr. Hearn. Thank you. Generally speaking, like Ron has
said, the American Legion favors the idea of local adjudication
for claims. I think what you are saying, though, is that you
are essentially going to create a workforce of warrant officers
where they are specialized in particular areas. And this is the
thing that I kind of question. If you are a high performing
regional office, and you are assigned special monthly
compensation, and then you are working in a different office
and you are assigned something that is a little bit easier, say
like tinnitus or something, what is that going to do to the
morale for the people working in tinnitus? I mean, I would not
feel too good for myself if they say well, this is all they
think of me, I am stuck with the tinnitus game.
And so I do not think that that is necessarily the way that
you want to go about it. I think that you have to have a
comprehensive approach to training and evaluation. I was
speaking earlier in our office about it. I said if you, ten or
12 years ago when you passed No Child Left Behind the big
concern in the education community was, well, teachers are
going to start teaching to the test. And that is what some of
these evaluations do. When they are looking at their star team
reports it is a checklist. And Congresswoman Titus could attest
to her years in academia, you do not want to test somebody's
knowledge on multiple choice exams. You want to test them on
blue book exams. Because that is comprehensive understanding.
And that is what our big concern is at The American Legion.
Thank you.
Mr. Runyan. Thank the gentleman. And I thank all of you
today for your testimony and for the work you do on behalf of
disabled veterans. You are now excused from the witness table
and we will ask our third panel to come forward.
This will be our final panel today. We welcome Mr. Tom
Murphy, Director of Compensation Service with the Veterans
Benefits Administration; also Ms. Edna MacDonald, who is
Director of the Nashville Regional Office, accompanying Mr.
Murphy today. We also welcome Sondra McCauley, Deputy Assistant
Inspector General for Audits and Evaluations with the Office of
the Inspector General, Department of Veterans Affairs. Ms.
McCauley is accompanied by Mr. Brent Arronte, Director of San
Diego Benefits Inspections Division. We appreciate your
attendance today. Your complete and written statements will be
entered into the hearing record. And Mr. Murphy, you are now
recognized for five minutes.
ORAL STATEMENT OF TOM MURPHY
Mr. Murphy. Chairman Runyan, Ranking Member Titus, and
members of the subcommittee, thank you for providing me the
opportunity to discuss the VA's policies and procedures for
adjudicating complex disability claims. I am accompanied today
by Ms. Edna MacDonald, Director of the Nashville Regional
Office.
The VBA continues to experience an increase in the number
and complexity of medical issues. Between 2011 and 2013 the
average number of issues in original claims increased by 31
percent, from 5.5 to 7.2. In response VBA developed and
implemented a new operating model.
VBA has noticed an increase in complexity of the claims
from the newer generations of veterans who participated in
Operations Enduring Freedom, Iraqi Freedom, and New Dawn. These
young heroes have a greater chance of surviving serious
injuries and often return home with multiple serious
conditions. In addition, VBA continues to receive complex
claims from veterans of the Vietnam era. Many of these become
complicated because they are subject to federal court orders in
Nehmer v. U.S. Department of Veterans Affairs.
The new organizational model incorporates cross-functional
teams working on one of three segmented lanes, express, core,
and special operations. Lanes were created based on complexity
and priority of claims.
The express lane develops and rates claims with a limited
number of issues and subject matter which could be developed
and rated more quickly. Core lane includes claims with three or
more medical issues that do not involve special populations of
veterans. The special operations lane applies intense focus and
case management on specific categories of claims that require
special processing or training. It is comprised of a regional
office's most highly skilled personnel with specialized
experienced and training.
VBA is simplifying ratings by building new decision support
tools to make our employees more efficient and their decisions
more consistent and accurate. One of them is the evaluation
builder and it is essentially an interactive rating schedule.
The rater uses a series of check boxes that are associated with
the veteran's symptoms. DBQs are another tool designed to
simplify rating decisions. They replace traditional VA exam
reports and capture all needed medical information up front and
present the findings in a rater friendly format.
Claims are considered complex for a variety of reasons.
There are three examples. Due to the complexities of rating TBI
the special operations lane processes these claims. Since
March, 2013 all raters in this lane are required to complete
specialized training. This web-based module is 22.5 hours on
how to rate a claim for the residuals of TBI. Due to the myriad
of symptoms that a veteran with TBI may experience, it is often
unclear which symptoms are solely attributable to TBI. In
October, 2011 Compensation Service provided guidance that
examination findings should be related to the veteran's TBI
condition unless such symptoms are clearly attributable to
other causes. In addition VBA has instituted safeguards to
ensure consistency and accuracy. All raters are required to
obtain a second signature on TBI claims until the individual
demonstrates 90 percent accuracy in rating such claims.
As a result of these efforts VBA has seen TBI grant rates
increase from 21 percent in 2007 to 47 percent in 2013.
Further, the accuracy of TBI ratings during fiscal year 2013
was 92.37 percent, slightly higher than the national average
for all rating claims during the same period.
Service connection for PTSD requires three things: medical
evidence diagnosing the condition, an in service stressor, and
a nexus connecting the two. In 2010 Secretary Shinseki made it
easier for veterans with fear based PTSD to establish service
connection. VA added a regulation providing that a veteran's
lay statement alone can now establish the required in service
stressor. VA provided extensive training on this regulation
change to ensure consistent and accurate ratings.
MST-based PTSD claims are processed by the special
operations lane as well. Complications generally arise in
situations where there is no corroborating evidence of the
stressor in the veteran's military records. In these cases VA
must notify the veteran that the evidence from outside military
records may be used to support and claim and must attempt to
obtain any such evidence identified. In 2011 VBA conducted a
quality review of 400 MST-based PTSD claims, which found that
an approximate 25 percent error rate based primarily in
incomplete development. We developed and implemented an MST-
based PTSD training package that emphasized the proper evidence
development and recognition of the types of evidence. Following
the training the MST-based PTSD grant rate rose to a level
comparable to that of other types of PTSD.
VA has seen a significant increase in the complexity of
claims received in recent years. To address this trend VA
implemented a new organizational model with a special
operations lane focusing on complex disability claims.
This concludes my statement, Mr. Chairman. I would be happy
to entertain any questions you or members of the subcommittee
may have.
PREPARED STATEMENT OF TOM MURPHY
Chairman Runyan, Ranking Member Titus, and Subcommittee
Members, thank you for providing me the opportunity to discuss
Department of Veterans Affairs (VA) policies and procedures for
adjudicating complex disability claims.
I am accompanied by Ms. Edna MacDonald, Director of the
Nashville Regional Office.
The Veterans Benefits Administration (VBA) continues to
experience an increase in the number and complexity of medical
issues in disability claims received. Between 2011 and 2013,
the average number of issues in original claims for service
connected disability compensation increased by 31 percent, from
5.5 issues in 2011 to 7.2 issues in 2013. In response to this
trend and to achieve the Secretary's goal of processing all
claims within 125 days at 98 percent accuracy in 2015, VBA
developed and implemented a new operating model that includes a
formal mechanism to manage complex claims. My testimony will
explain why certain claims are more complex than others and how
VBA has improved our policies and procedures to provide more
timely and accurate decisions to Veterans with complex claims.
Backlog Update
Before discussing the topic of today's hearing, I would
like to provide the Subcommittee with an update on our progress
to date in eliminating the claims backlog. VA has
significantlyreduced the backlog by approximately
34 percent, or approximately 210,000 claims since March
2013, and we expect the reductions to continue in upcoming
months. Further, we continue to execute our claims
Transformation Plan.
More importantly, while increasing our productivity we have
concurrently increased the quality of our work. In June 2011,
our average for claims accuracy was approximately 83 percent;
in August of 2013 that number was approximately 91 percent.
When measuring accuracy at the medical issue level - which is a
truer measure of VA's workload - our rating accuracy today
stands at 96.1 percent.
The current inventory of claims, backlog, and other
workload measures for both the national level and at the
regional office level are available by visiting http://
www.vba.va.gov/reports/. The Monday Morning Reports provide
workload indicators reported by VBA regional offices and are
updated weekly. Similarly, the ASPIRE Dashboard provides
monthly information on how VBA and regional offices are doing
in relation to 2015 aspirational goals.
None of this progress would be possible without the
tremendous support VA receives from its partners including this
Subcommittee, the rest of Congress, our Veterans Service
Organizations, and County and State Departments of Veterans
Affairs. Our progress is also the result of unprecedented
effort and dedication of VBA employees, 52 percent of whom are
Veterans themselves, and the support provided by our partners
in VA's Office of Information and Technology and Veterans
Health Administration. Veterans themselves have contributed to
our progress by participating in the Fully Developed Claims
program and submitting claims electronically through the
eBenefits Web site. We appreciate the support of all of our
partners and stakeholders as we continue working to eliminate
the claims backlog.
Complexity of Claims
From 2009 to 2013, the average number of issues included in
a disability claim increased from 2.8 to 4.9. In particular,
VBA has noticed an increase in complexity of the claims from
the newer generation of Veterans who participated in Operation
Enduring Freedom, Operation Iraqi Freedom, and Operation New
Dawn. These young heroes have a greater chance of surviving
serious injuries and often return home with multiple
amputations, blindness, burns,
multi-organ system damage, and most notably, with the
signature wounds of the war--traumatic brain injury (TBI) and
posttraumatic stress disorder (PTSD).
In addition, VBA continues to receive complex claims from
Veterans of the Vietnam Era, who submit more claims than
Veterans from any other period of service. Many claims from
Vietnam Era Veterans are also complicated because they are
subject to Federal court orders in Nehmer v. U.S. Dep't of
Veterans Affairs under which, when VA adds a new presumptive
condition to the list of those conditions associated with
exposure to herbicides used in Vietnam or modifies the
definition of a presumptive condition, it must re adjudicate
the claims of Veterans or eligible Survivors who previously
filed claims seeking benefits based on that condition, and in
appropriate cases, pay benefits retroactively to the date of
receipt of the denied claim. These court orders have added to
the complexity of rating many claims from Vietnam Era Veterans.
VBA Organizational Model
In response to the increasing complexity of claims and to
achieve the Secretary's goal of processing all claims within
125 days at 98 percent accuracy in 2015, VBA developed and
implemented a new operating model by March 2013 that includes a
formal mechanism to manage complex claims. Initially planned
for deployment throughout fiscal year (FY) 2013, VBA
accelerated implementation of its new organizational model by 9
months due to early indications of its positive impact on
performance.
The new organizational model incorporates a case-management
approach to claims processing by reorganizing the workforce
into cross-functional teams so that employees see the entire
processing cycle of a Veteran's claim. These cross-functional
teams work together on one of three segmented lanes: express,
special operations, or core. Lanes were created based on the
complexity and priority of the claims, and employees are
assigned to the lanes based on their experience and skill
levels. An Intake Processing Center serves as a formalized
triage process to quickly and accurately route Veterans' claims
to the right lane when first received.
The express lane was developed to identify those claims
with a limited number of medical conditions (i.e., about 1-2
issues) and subject matter which could be developed and rated
more quickly. The special operations lane applies intense focus
and case management on specific categories of claims that
require special processing or training (e.g., homeless or
terminally ill Veterans, military sexual trauma (MST), former
Prisoners of War, seriously injured, etc.). These claims
continue to receive priority processing. The core lane includes
claims with three or more medical issues that do not involve
special populations of Veterans.
The special operations lane is comprised of a regional
office's most highly skilled personnel with specialized
experience and training. The quality of our decisions improves
by assigning more experienced and skilled employees to the more
complex claims in our special operations lane. When VA receives
a complex claim, a comprehensive screener ensures that the
claim is correctly identified and routed to the appropriate
member of the special operations lane. Because of the expertise
of the screener, the claim is carefully examined to determine
the next action required. For example, cases that are fully
developed and ready for a decision will be routed directly to
an experienced rater who will fully evaluate the claim. If the
case requires additional evidence to support the claim, the
screener will forward the case to an employee who will take the
appropriate development action. The team includes a supervisor
and claims assistants who perform important clerical work. The
keys to success within the special operations lane are
communication, attention to detail, and accountability.
Calculators and Evaluation Builder
VBA is also simplifying ratings by building new decision-
support tools within the Veterans Benefits Management System
(VBMS) to make our employees more efficient and their decisions
more consistent and accurate. We have already developed rules-
based calculators for disability claims decision-makers to
provide suggested evaluations. For example, the hearing loss
calculator automates decisions using objective audiology data
and rules-based functionality to provide the decision-maker
with a suggested decision.
The Evaluation Builder is essentially an interactive
disability rating schedule. The VBA decision-maker uses a
series of check boxes that are associated with the Veteran's
symptoms. Using the Evaluation Builder, the VBA employee
determines the proper diagnostic code out of over 800 codes as
well as the level of disability based on the Veteran's
symptoms. The Veteran receives an accurate rating decision
every time the Evaluation Builder is used. This saves employees
time that would have been spent looking up the rating schedule
in a paper format. To date, 10 of the 15 body systems in VA's
Schedule of Rating Disabilities have been embedded into the
Veterans Benefits Management System (VBMS).
Disability Benefits Questionnaires (DBQ)
DBQs are another transformation initiative designed to
simplify rating decisions. DBQs replace traditional VA
examination reports and are designed to capture all the needed
medical information relevant to a specific condition at once
and up front so that claims can be developed and processed in a
more timely and accurate manner, with the end result being
faster service for Veterans. DBQs change the way medical
evidence is collected, often giving Veterans the option of
having their private physicians complete a DBQ that provides
the medical information needed to rate their claims -
minimizing the need for a VA exam which adds additional time to
the claim development process.
Information in the DBQs maps to the VA Schedule for Rating
Disabilities, and provides all of the necessary information to
decide a disability claim. Fully and properly completed DBQs,
whether from private providers or within the internal VA
examination processes, have the potential to reduce rework, the
largest category being exams with insufficient information.
VBA's future goal is to turn DBQ objective responses into data
to drive a calculator-based
business-rules engine in VBMS, to achieve automated
decision support to improve consistency and accuracy of
decisions, and reduce processing time per case.
Examples of Complex Claims
Claims are considered complex for a variety of reasons.
Three examples are outlined below along with our efforts to
provide more timely and accurate decisions for such claims.
TBI
Due to the complexities associated with rating TBI, the
special operations lane processes claims from Veterans seeking
compensation for TBI. Since March 2013, all raters in the
special operations lane are required to complete specialized
training on TBI. This Web-based TBI training module is a 22.5
hour course on how to rate a claim for the residuals of TBI.
Veterans who file claims for TBI receive a compensation and
pension examination, which is designed to elicit all clinical
findings attributable to TBI. However, due to the myriad of
symptoms that a Veteran with TBI may experience, it is often
unclear which symptoms are solely attributable to TBI. In
October 2011, Compensation Service provided guidance that
examination findings should be related to the Veteran's TBI
condition, unless such symptoms are clearly attributable to
other causes.
In addition, VBA has instituted safeguards to ensure
consistent and accurate ratings for TBI claims. All raters are
required to obtain a second signature on TBI claims until the
individual demonstrates 90-percent accuracy in rating TBI
claims.
As a result of these efforts, VBA has seen TBI grant rates
increase from 21 percent in 2007 to 47 percent in 2013.
Further, the accuracy of TBI ratings during quality reviews
during FY 2013 was 92.37 percent, which was slightly higher
than the national average for all rating claims during the same
period.
PTSD
Service connection for PTSD requires: 1) medical evidence
diagnosing the condition; 2) a link, established by medical
evidence, between current symptoms and an in-service stressor;
and 3) credible supporting evidence that the claimed in-service
stressor occurred. VA recognizes that certain in-service
stressful events may be difficult to document.
In 2010, Secretary Shinseki took action to make it easier
for Veterans with PTSD based on fear of hostile military or
terrorist activity to establish service connection. Under the
generally applicable criteria for PTSD, VA requires
corroborating evidence of occurrence of an in-service stressful
event from such sources as military personnel records, service
treatment records, lay statements from fellow Servicemembers,
or military unit records provided by the Department of Defense
to service-connect a Veteran's current PTSD symptoms. VA added
a regulation providing that a Veterans' lay statements alone
can now establish the required in-service stressor if it is
related to fear of hostile military or terrorist activity and a
VA psychiatrist or psychologist or psychiatrist or psychologist
with whom VA has contracted, confirms that the claimed stressor
is adequate to support a PTSD diagnosis, and that the Veteran's
symptoms are related to the claimed stressor. VBA's
Compensation Service provided extensive training on this
regulatory amendment to ensure consistent and accurate ratings
were made after this change. As a result of this liberalized
stressor-verification standard, outreach, and other factors,
the number of Veterans in receipt of compensation for PTSD
increased from approximately 374,000 in FY 2009, to 649,000 in
FY 2013.
PTSD Based on MST
PTSD claims based on MST are one of the complex claims
processed by our most experienced adjudicators in the special
operations lane. Complications with these claims generally
arise in situations where there is no corroborating evidence of
the MST stressor in the Veteran's military records. Delays can
occur because VA must obtain the complete personnel file and
seek evidence from sources other than the Veteran's service
records to corroborate the Veteran's account of the stressor
incident. Additionally, VA must notify the Veteran that
evidence from outside military records may be used to support
the claim and must follow up and attempt to obtain any such
evidence identified by the Veteran. These development issues
add to the claims' complexity, but VA has taken steps to
address them.
VA is committed to serving our Nation's Veterans by
accurately adjudicating claims based on MST in a thoughtful and
caring manner, while fully recognizing the unique evidentiary
considerations involved in such a claim. In 2011, VBA conducted
a quality review of 400 MST-based PTSD claims, which found an
approximate 25-percent error rate based primarily on incomplete
development. To remedy this, we developed a MST-based PTSD
training package and conducted a nationwide online training
broadcast was conducted. The training emphasized proper
evidence development and recognition of the types of evidence
(such as erratic performance evaluations; sexually transmitted
disease tests; requests for transfers; mental health
counseling; behavior changes; and lay statements from fellow
Servicemembers, family, or clergy) that can corroborate a
Veteran's account of the stressor incident.
The training also emphasized that when there is
corroborating evidence, including evidence of a behavioral
change, VBA must request a disability compensation examination
that includes a medical opinion about whether the evidence of
record indicates that a personal assault occurred. This medical
opinion can provide a basis upon which service connection for
PTSD can be established.
Following the training, the MST-based PTSD grant rate rose
to a level comparable to the level for all types of PTSD
claims. In order to assist Veterans' whose claims were denied
prior to the training initiative and who may benefit from
additional evidence development for markers, we decided to
conduct a review of previously denied MST-based PTSD claims,
upon a Veteran's request. VBA identified approximately 2,500
Veterans with previously denied MST-based PTSD claims and sent
notice letters to the Veterans in April 2013. The letters
invited the Veterans to request a review of the denied claims
by their regional offices and to submit or identify any
additional evidence to support their claims. Compensation
Service updated the MST-based PTSD Training Letter to explain
the review to regional office personnel. Additionally, VA's
National Call Center has developed and implemented a question
and answer script on how to answer questions on the review
process.
There has been one additional legal development in the
adjudication of MST claims. On September 30, 2013, the United
States Court of Appeals for the Federal Circuit ruled in AZ v.
Shinseki that, where an alleged sexual assault is not reported,
the absence of service records documenting the alleged assault
is not pertinent evidence that the assault did not occur. The
court reasoned that because the majority of in-service sexual
assaults are not reported and records of unreported sexual
assaults do not exist, the absence of a service record in such
a case is not reliable evidence and cannot be considered by VA.
This legal development is consistent with VBA's current
policies and procedures as we do not make rating decisions
based on the absence of a reported sexual assault in a service
record.
In FY 2013, the grant rate for MST-based PTSD was within
six percentage points of the grant rates for all PTSD claims.
The grant rate for male Veterans claiming MST-based PTSD is now
within seven percentage points of the grant rate for female
Veterans claiming MST-based PTSD. In FY 2013, there was only a
two percentage point difference in the grant rate for all PTSD
claims submitted by male and female Veterans.
Training and Accuracy
VBA is committed to providing high quality, timely, and
relevant training for both new and experienced personnel to
ensure that claims-decision quality continues to improve. To
this end, our transformation efforts include redesigned
programs and tools that standardize training across our 56
regional offices.
In 2012, VBA created Quality Review Teams (QRT) to improve
employee training and decision accuracy while decreasing rework
time. We reassigned 573 of our most skilled and experienced
employees from their duties as claims processors to serve on
QRTs. In FY 2013, these QRTs conducted more than 145,000 in-
process reviews, preventing errors before they could impact
Veterans and provided specialized retraining to claims
processors so these errors can be prevented in the future.
VA currently uses a 3-month rolling average to track the
impact of initiatives on rating accuracy. These metrics are
reported in ASPIRE and can be seen online by anyone inside or
outside of VA. In FY 2012, VA showed a
3-percent increase in national accuracy - from
approximately 83 percent to
86 percent. In FY 2013, our 3-month accuracy at the claims
level rose to approximately 90 percent, meeting the goal we set
for ourselves this year. The accuracy outcome goals for the
next 2 years are approximately 93 percent in
FY 2014, and 98 percent in FY 2015.
It is important to recognize that under the existing
quality review system, any one error on the claim, no matter
how many medical conditions must be developed and evaluated,
makes the entire claim in error - the claim is therefore
counted as either 100 percent accurate or 100 percent in error,
with no credit for anything in between. Medical issues are
defined as individually evaluated medical conditions. Given
that the average number of medical issues in original claims
filed by recently separated Servicemembers is now above 10
issues per claim, we do not believe the current all-or-nothing
measure reflects the actual level of decision accuracy
achieved. When we measure the quality of claims based on the
individual medical issues rated (i.e., ``issue-based
accuracy''), the accuracy of our decisions is at approximately
96.1 percent. This issue-based accuracy approach also affords
VBA the opportunity to precisely target those medical issues
where we make the most errors, at the individual employee
level, and develop and direct training in a targeted manner.
Conclusion
VA has seen a significant increase in the complexity of
claims received in recent years. To address this trend, VA has
implemented a new organizational model with a special
operations lane focusing on complex disability claims. We
firmly believe this initiative, along with VBA's other
transformational initiatives, will help VA eliminate the claims
backlog and achieve the Secretary's goal of all claims
completed in 125 days at 98 percent accuracy in 2015.
This concludes my statement, Mr. Chairman. I would be happy
to entertain any questions you or the other Members of the
Subcommittee may have.
Mr. Runyan. Thank you, Mr. Murphy. With that, I would
recognize Ms. McCauley.
ORAL STATEMENT OF SONDRA F. MCCAULEY
Ms. McCauley. Mr. Chairman and Members of the Subcommittee,
thank you for the opportunity to discuss our work regarding
complex disability claims processing issues. With me today is
Mr. Brent Arronte, Director of our San Diego Benefits
Inspection Division.
In addition to our nationwide audits, the OIG reports on
individual VARO effectiveness in providing timely and accurate
benefits and services to veterans. Of major concern, however,
is continued VARO non-compliance with VBA policy despite our
recommendations for addressing issues we identify.
Specifically in response to our May, 2011 report, VBA began
requiring second-signature reviews of all TBI claims until
raters demonstrate 90 percent accuracy in TBI claims
processing. However, in fiscal year 2013 we saw only slight
improvement since our first cycle of inspections. Twelve VAROs
remained non-compliant in processing TBI claims for two
consecutive inspections. Half of the errors were due to VARO
staff using inadequate medical exams to rate TBI claims.
In January 2011, we projected VBA incorrectly processed 15
percent of 100 percent disability evaluations for about 181,000
veterans, and paid a net $943 million without adequate
supporting medical evidence. VBA implemented training and
internal controls to address this issue. However, VBA
repeatedly delayed completing its review of all 100 percent
disability evaluations to ensure each had a future examination
date entered in the electronic record.
Our second cycle of VARO inspections continued to show a
high error rate in processing these evaluations. In most cases
errors occurred when staff did not enter suspense diaries in
VBA's electronic system to request medical reexaminations as
required.
We continue to review VBA's systematic analyses of
operations (SAOs), an organized means of reviewing Veterans
Service Center (VSC) operations to identify problems and
propose corrective actions. We found six VAROs remained non-
compliant in this area for both cycles of our inspections.
Generally VARO management did not provide adequate
oversight to ensure SAOs were timely and/or complete. We noted
a correlation between SAO non-compliance and VAROs having
vacant or temporary director or VSC manager positions for five
months or greater.
Currently we are assessing VBA's initiatives to improve
claims processing and eliminate the backlog. We are reviewing
the initiative VBA began on April 19, 2013 to process within 60
days all claims over two years old. Of note we determined ten
of 11 provisional rating decisions at the Los Angeles VARO were
non-compliant with VBA guidance. We found the VARO Director's
office had emailed conflicting guidance to staff requiring
provisional rating without supporting medical evidence.
Concerned that additional errors may exist, we recommended that
VBA review for accuracy all 470 provisional ratings completed
by the Los Angeles VARO after the conflicting guidance was
issued.
Findings from our ongoing audit of the Veterans Benefits
Management System (VBMS) suggest some progress. While VBA has
reduced its inventory and average days to complete claims, we
cannot determine if the improvements are related to VBMS or
other transformation initiatives. Moreover, VBMS continues to
experience performance issues and users rely on legacy systems
to fully process claims. We have initiated a review to
determine the extent to which VBMS helps VBA improve the
accuracy and consistency of its claims rating decisions. We
expect to report our findings in early 2014.
In conclusion, VBA has made some progress but continues to
face challenges to improving claims processing accuracy and
timeliness. Inefficiencies mean not only added burdens and
delays for veterans, but also improper payments that VBA will
not likely recover. We will continue to look for ways to
promote improvements in VBA benefits deliver during our future
audits and inspections.
Mr. Chairman, this concludes my statement. We would be
pleased to answer any questions that you or other Members of
the Subcommittee may have.
PREPARED STATEMENT OF SONDRA F. MCCAULEY
Mr. Chairman and Members of the Subcommittee, thank you for
the opportunity to discuss issues related to the performance of
Department of Veterans Affairs (VA) Regional Offices (VAROs) as
identified in reports by the Office of Inspector General (OIG).
The reports include audits of the programs and operations of
the Veterans Benefits Administration (VBA) as well as
inspections conducted at individual VAROs. I am accompanied by
Mr. Brent Arronte, Director, OIG San Diego Benefits Inspection
Division.
Background
Delivering timely and accurate benefits and services to the
millions of veterans who provided military service to our
Nation is central to VA's mission. VBA is responsible for
oversight of the nationwide network of regional offices that
administer a range of veterans benefits programs, including
compensation, pension, education, home loan guaranty,
vocational rehabilitation and employment, and life insurance.
These programs are estimated to pay out over $73 billion in
claims to veterans and their beneficiaries in fiscal year (FY)
2014, and comprise approximately half of VA's total budget.
As part of our oversight responsibility, we conduct
inspections of VAROs on a 3-year cycle to examine the accuracy
of claims processing and the management of Veterans Service
Center (VSC) operational activities. After completion of our
inspections, we issue a separate report to each VARO Director
on the inspection results. Our inspections address the
processing of high-risk claims such as traumatic brain injury
(TBI) and temporary 100 percent disability ratings. We
previously reviewed claims related to post-traumatic stress
disorder (PTSD), however due to a change in regulations as well
as improved accuracy in processing PTSD claims, we discontinued
our reviews of these claims in FY 2012.
In FY 2012, we completed our first cycle of reviews of all
VAROs and began our second cycle of oversight. To date, we have
completed 20 VAROs in our second cycle of reviews.1 We are also
performing separate reviews focused on two of VBA's major
initiatives related to electronic processing of claims through
the Veterans Benefits Management System (VBMS) and provisional
decisions on claims over 2 years old.
VA Regional Office Inspections
Since FY 2009, we have conducted 77 VARO inspections and
have consistently reported the need for enhanced policy
guidance, oversight, workload management, training, and
supervisory review to improve the timeliness and accuracy of
disability claims processing and VARO operations.2 Of those
offices that have been inspected twice, the Denver and
Milwaukee VARO inspections had the highest (80 percent) level
of overall compliance with VBA policy in the areas that we
inspected.3 The Baltimore VARO had the lowest compliance rate
in areas we inspected. .
An area of concern from an oversight perspective is
continued VARO non-compliance with VBA policy despite our
initial identification and reports on such problems. In FY
2013, we inspected 20 offices that we previously inspected and
found 17 of the offices continued to be non-compliant with VBA
policy in one or more of the protocol areas previously
inspected.
Disability Claims Processing
In the second round of inspections, we are focusing on
processing high-risk claims, TBI claims and temporary 100
percent evaluations. We adjust our inspection protocols as
needed, with some review areas continuing year-to-year while
others are replaced because VAROs have demonstrated
improvements in performance of those review areas or in some
cases, changes in VBA policy.4
Traumatic Brain Injury Claims
In response to a recommendation in our May 2011 report,
Systemic Issues Reported During Inspections at VA Regional
Offices, VBA agreed to develop and implement a strategy for
ensuring the accuracy of TBI claims decisions. The then-Acting
Under Secretary for Benefits responded by providing guidance to
VARO Directors to implement a policy requiring a second
signature on each TBI case that a Rating Veterans Service
Representative (RVSR) evaluates until the RVSR demonstrates 90
percent accuracy in TBI claims processing. The policy indicates
second-signature reviewers come from the same pool of staff as
those used to conduct local station quality reviews. Yet, we
continue to identify significant processing errors related to
TBI disability claims in our most recent inspections, and in
many cases, the errors occur despite secondary reviews.
Our 77 inspections to date showed that staff had made
errors in 31 percent of the TBI claims we reviewed. More than
half of the errors we identified were due to VARO staff using
inadequate medical examination reports to evaluate residual
disabilities associated with traumatic brain injuries. We
learned through interviews that RVSRs were not consistently
returning the inadequate reports to VA medical facilities as
required due to pressure to meet production requirements. A
common scenario in TBI claims processing involved veterans who
had TBI-residual disabilities as well as co-existing mental
conditions. When medical professionals did not ascribe the
veterans' overlapping symptoms to one condition or another
condition as required, VARO staff could not make accurate
disability determinations. RVSRs' difficulty in following
complex TBI claims evaluation policies is contributing to the
TBI claims processing errors.
In the first inspection cycle, we reviewed 1,077 traumatic
brain injury claims at 57 offices and found 338 (31 percent) of
these contained processing errors. In FY 2013, during
subsequent inspections at 20 offices, we examined 411 claims
and found 118 (29 percent) of these cases had errors--
demonstrating some improvement in the error rate percentages.
Twelve of the offices inspected were non-compliant with VBA
policy for two consecutive inspections.5 In most cases, the
errors occurred because VARO staff used inadequate medical
examination reports to evaluate residual disabilities
associated with traumatic brain injuries.
Temporary 100 Percent Disability Evaluations
In our January 2011 audit report, we projected VBA had not
correctly processed 100 percent evaluations for about 27,500
(15 percent) of 181,000 veterans.6 We reported that since
January 1993, VBA had paid veterans a net $943 million without
adequate medical evidence to support the payments. We concluded
that if VBA did not take timely corrective action, it could
overpay veterans a projected $1.1 billion over the next 5
years. The Under Secretary for Benefits agreed with our seven
report recommendations for implementing training and internal
control mechanisms to improve timeliness in processing these
types of claims. To date, VBA has implemented six of the seven
recommendations.
However, of major concern is VBA's delay in implementing
the final recommendation, to review all temporary 100 percent
disability evaluations and ensure each had a future examination
date entered in the electronic record... The Acting Under
Secretary stated the target completion date for VBA's national
review would be September 30, 2011. However, VBA did not
provide each VARO with a list of 100 percent disability
evaluations for review until September 2011. VBA subsequently
extended the national review deadline on four occasions. To
date, VBA has not completed this national review requirement
and improper monthly benefits continue to be paid despite a
lack of adequate medical evidence.
Although VBA has requested we close the final
recommendation on several occasions, we have not been able to
substantiate that VBA's methodology for identifying all claims
that may be paying inaccurate benefits is effective. Further,
VBA's methodology does not call into question a veteran's 100
percent disability evaluation if there is also an associated
control referred to as an ``end product'' to alert VBA claims
processing staff of the need to review the claim at a later
date. Having a control in place is not providing adequate
assurance that the reviews will occur or that reviews will be
timely. VBA designated the use of end product 684s as the
control to ensure staff review 100 percent disability
evaluations to determine if the monthly payments are accurate.
However, VBA does not have performance metrics in place for end
product 684s establishing a timeframe in which staff are
expected to review and take corrective actions on pending end
product 684s. As of November 19, 2013, VBA had 7,562 end
product 684s pending on average for 340 days showing delayed
corrective actions to identify and discontinue potential
improper payments.
We continue to follow up on these audit results during our
VARO inspections and continue to find significant processing
errors. Inspection results from 71 benefits inspections show
VARO staff incorrectly processed 61 percent of the temporary
100 percent disability evaluations we reviewed, resulting in
over $19 million in overpayments to veterans. The majority of
these errors occurred when VARO staff did not input reminder
notifications in VBA's electronic system to request
reexaminations of these veterans as required by VBA policy.
For the first inspection cycle, we reviewed 1,480 temporary
100 percent disability evaluations at 51 offices and found 973
(66 percent) of these contained processing errors. In FY 2013,
during subsequent inspections, we examined 594 claims and found
290 (49 percent) of these cases had errors. Twelve of the
offices inspected during FY 2013 were non-compliant with VBA
policy for two consecutive inspections.7 In most cases and for
both inspection cycles, the errors occurred because staff did
not enter reminder notifications in VBA's electronic system to
request re-examinations for veterans with temporary disability
evaluations as required. We did identify improvement in this
area in our 2013 inspections; however, in our view the error
rates continue to be significant.
Post-Traumatic Stress Disorder
When we began our VARO inspections, we included PTSD claims
processing as a review area. In our summary report dated May
2011, we projected VARO staff did not correctly process 1,350
(8 percent) of approximately 16,000 PTSD claims completed from
April 2009 through July 2010. About 38 percent of the errors
were due to staff improperly verifying veterans' alleged
stressful events, a requirement for granting service connection
for PTSD. VARO staff lacked sufficient experience and training
to process these claims accurately. Additionally, some VAROs
were not conducting monthly quality assurance reviews. For
these reasons, veterans did not always receive accurate
benefits.
Effective July 13, 2010, VA amended its rule for processing
PTSD disability compensation claims. The new rule allows VARO
staff to rely on a veteran's testimony alone to establish a
stressor related to fear of hostile military or terrorist
activity, as long as the claimed stressor is consistent with
the circumstances of service. This change significantly reduced
processing errors associated with PTSD claims. Prior to the
rule change, we identified a 13 percent error rate in PTSD
claims processing; after the rule change the error rated
dropped to 5 percent. As such, we no longer review these types
of claims.
Operational Issues
One area that we continue to review is VBA's Systemic
Analysis of Operations (SAOs). An SAO is an organized means of
reviewing VSC operations to identify existing or potential
problems and propose corrective actions. During the first
inspection cycle, we identified 30 of the 56 offices inspected
were non-compliant with VBA policy. In FY 2013, during
subsequent inspections at 20 offices, 9 of the offices
inspected were non-compliant--of these 6 were non-compliant for
two consecutive inspections.8 Generally, SAOs were untimely
and/or incomplete because VARO management did not have adequate
oversight to ensure SAOs addressed all necessary elements and
operations of the VSC and that they were submitted by the
required due date.
Another area of concern is VBA management vacancies. We
noted a correlation between VAROs producing complete and timely
SAOs and VSC compliance with other VBA policies. We found that
five VAROs, where managers ensured SAOs were timely and
complete, were the most compliant in other operational
activities we inspected. Conversely, of the six VAROs that had
untimely and/or incomplete SAOs, five had the lowest
performance in other operational activities, such as claims
processing, mail handling, and data integrity. At five of the
six least compliant VAROs, vacancies in senior management
positions contributed to delays in completing SAOs and
implementing corrective actions. These VAROs had Director or
Veteran Service Center Manager positions vacant or filled with
temporary staff for periods of 5 months or greater. For
example, during the 8-month absence of the Anchorage Veterans
Service Center Manager, that office did not have any senior
leadership physically in place to manage and oversee
operations.
Current OIG Work On VBA Initiatives
We are assessing VBA transformation initiatives to improve
claims processing and eliminate the backlog. Specifically, we
are conducting reviews of two key VBA initiatives: processing
of claims over 2 years old and implementation and accuracy of
the Veterans Benefits Management System (VBMS)--VBA's web-
based, paperless claims processing solution to support improved
business processes.
Claims Processing Initiative: Rating Claims Pending Over 2-
Years
On April 19, 2013, VBA implemented a special initiative to
address the oldest pending disability claims in the current
backlog. VBA stated the intent of the initiative was to work
all claims pending for more than 2 years within 60 days,
beginning April 19, 2013. VAROs were directed to devote all
RVSRs and as many Veterans Service Representatives as needed to
ensure all claims pending over 2-year old were processed and
completed. According to VBA, RVSRs were to immediately process
the 2-year old claims based on the available evidence in the
veterans' claims folders. Further, rating decisions produced
were to be considered provisional ratings unless all evidence
in support of the claims had already been received (and the
claim was considered ready-to-rate) or the ratings assigned
provided the highest evaluation for the particular diagnostic
code for each claimed issue. However, if medical examination
reports or other Federal records were needed, these older
claims could not be processed as provisional rating decisions.
During one review errors were identified at the Los Angeles
VARO when leadership provided conflicting guidance on the
proper procedures for processing provisional rating decisions.
We determined 10 (91 percent) of 11 provisional rating
decisions we reviewed were not compliant with VBA's guidance
related to the 2-year claims processing initiative. Eight of
the 10 provisional decisions were determined to be non-
compliant because the rating decisions were made without
supporting VA medical examinations as required. One claim was
decided without Service Treatment Records, which are considered
Federal records and must be obtained by VARO staff prior to
rendering a provisional rating decision. In the remaining case,
the provisional rating was controlled by a future diary that
scheduled the claim for review in 2 years instead of 1 year as
required.
Requiring a rating decision to be rendered before a medical
examination is obtained as a basis for a decision is in
conflict with VBA policy. On May 14, 2013, conflicting guidance
was sent to the Los Angeles VARO staff via an e-mail from the
VARO Director's office. The guidance incorrectly stated all 2-
year old cases requiring a medical examination must have the
medical examinations ordered by May 15, 2013. This conflicts
with VBA guidance because if a medical examination was required
to decide a claim, the claim could not be completed as a
provisional decision until staff obtained the necessary medical
examinations. The guidance also incorrectly indicated that any
claims with medical examinations not completed by June 3, 2013,
were to be decided by a provisional rating.
We are concerned similar errors may exist among other
provisional rating decisions completed by the Los Angeles VARO
after the conflicting guidance was issued. VBA provided data
that revealed the Los Angeles VARO completed 532 provisional
rating decisions between April 19-June 19, 2013. VARO staff
completed 470 of those 532 provisional decisions claims after
the conflicting guidance was disseminated on May 14, 2013. All
10 provisional rating decisions that we identified as non-
compliant were completed after this date. We recommended that
VBA review all of the provisional rating decisions completed by
the Los Angeles VARO after the conflicting guidance was issued
to ensure they are accurate.
Veterans Benefits Management System (VBMS)
VBA and VA's Office of Information and Technology (OI&T)
are jointly developing VBMS, which is a web-based paperless
claims processing system. As one of VBA's main transformational
initiatives, VBMS is designed to assist VA in eliminating the
claims backlog and serve as the enabling technology for
quicker, more accurate, and integrated claims processing in the
future.
Over the past several years, the OIG has repeatedly
reported deficiencies concerning the development, testing, and
deployment of major systems throughout the department. In
February 2013, we reported that because of system complexities
and the incremental software development approach VA chose,
VBMS had not been fully developed to the extent that its
capability to process claims from initial application through
review, rating, and award, to benefits delivery could be
sufficiently evaluated.9 Thus we concluded that, as of
September 2012, VA had not fully tested VBMS.
In February 2013, the OIG launched a follow-up audit of
VBMS to determine whether VA is effectively managing VBMS
development and whether the project is positioned to meet
schedule, costs, and performance goals. We expect to complete
our audit in March 2014. Currently, VBMS has one pilot site
that provides the capability to process claims from initial
application through review, rating, award, to benefits
delivery. VBMS also continues to suffer from system performance
issues forcing users to rely on legacy systems to process
claims.
In June 2013, VBA completed its implementation strategy to
install VBMS at all VAROs. After the rollout of VBMS, VBA's
inventory of pending claims was just under 797,000 and took an
average of 238 days to complete. By the end of FY 2013, VBA had
reduced its inventory of pending claims by 10 percent and
reduced the average days to complete by 58 days. We cannot
determine if the reduction in the pending inventory or the
improvement in claims processing timeliness is related to VBMS
or to one of VBA's many improvement initiatives.
In our recent inspections of the Houston, Newark, and
Milwaukee VAROs, 25 staff provided us a user perspective of
VBMS. Generally, staff expressed frustration with the system in
part because of spontaneous system shut-downs, latency issues
related to slow times to download documents such as medical
evidence for review, longer times to review electronic
evidence, mislabeled electronic evidence, and mixing evidence
from one veteran's electronic file with another veteran's.
Given concerns raised at VAROs and complaints received
through the OIG Hotline, we initiated a review of the accuracy
of rating decisions completed using VBMS. We want to determine
if the automation initiative will be effective in assisting VBA
in meeting its goal of eliminating the disability claims
backlog and improving the accuracy and consistency of rating
decisions. We expect to report on our findings in early 2014.
Conclusion
VBA continues to face challenges in improving the accuracy
and timeliness of disability claims decisions and maintaining
efficient VARO operations. Our inspections and audit work
consistently has shown that VAROs do not always comply with
VBA's national policy to accomplish their benefits delivery
mission. Claims processing and operational problems result in
not only added burdens and delayed or incorrect payments to
veterans, they also mean wasted Government funds through
improper payments that VBA will not likely recover. While VBA
made some incremental progress through its own initiatives and
in response to our prior report recommendations, more work
remains to be done. We will continue to look for ways to
promote improvements in benefits delivery operations during our
future nationwide audits and VARO inspections.
Mr. Chairman, this concludes my statement. We would be
pleased to answer any questions that you or other Members of
the Committee may have.
Mr. Runyan. Thank you, Ms. McCauley. And I will begin a
round of questions with myself. And the first question probably
for Mr. Murphy, and Ms. McCauley I will have you both kind of
touch on it. And it precisely touches on one word here:
accuracy. Mr. Murphy, VA uses the term accuracy frequently.
Today we have heard from veterans, representatives of veterans,
VSOs, and VA Office of the Inspector General, who indicated
that claims are not being correctly decided at a very high
incidence. The files lack proper development and the medical
examinations are not adequate. VA OIG added that our VSRs are
not consistently returning adequate medical reports to VA
facilities as required due to pressure to meet production
requirements.
In a moment I would like you to explain in detail how VA
calculates and represents a 91 claims-based accuracy. I find
VA's representations of accuracy to be even more concerning
when you state that VA's TBI accuracy to be over 92 percent. VA
OIG, who is specifically tasked to perform quality reviews of
TBI claims, reports that over 30 percent of cases nationally,
employees are not compliant with VBA policy, with individual
ROs showing error rates as high as 50 percent.
So here is the question. Does accurate by VA standards mean
that the veteran received the correct rating decision for the
claimed conditions upon full and proper development of the
claim? And if accurate indicates anything less than this, what
does it mean?
Mr. Murphy. Accuracy means exactly what you said, Mr.
Chairman. Did the veteran receive the proper benefit
entitlement payment or decision in the case of a denial? That
is the measure of accuracy conducted by our quality analysis
staff in Nashville and reported out. That is what the 91
percent means. That number is drawn from a true statistically
valid nationwide sample, random sample, applied to all regional
offices, collected into Nashville each month, evaluated,
returned to the regional office, and then summed up on a
rolling 12-month average.
Mr. Runyan. Why do we have a discrepancy with the OIG
numbers then?
Mr. Murphy. The IG and VBA do not measure what an error is
exactly the same way. I look at an error as did the benefit
entitlement be wrong, number one? And the IG tends to look at
it from the standpoint of did you follow the process? If you
varied from the process but you got the benefit entitlement
decision right, I will not call that one an error. However, the
IG will.
But there is something more important that you need to hear
and it is a quote from the IG report which says, ``We sample
claims we consider at higher risk of processing errors. Thus
these results do not represent the overall accuracy of
disability claims processing at this VA regional office.'' This
is the page from the title of the IG report. There is one of
these in each report.
My point is this: the IG by design targets a specific
subset of known high errors. If you take that number and
extrapolate it out to, say, the entire regional offices this
way, it is not an accurate representation of the sum of work
for that regional office. I am not disputing that is an
accurate representation for the subset that they looked at. But
not for the totality of work that comes out of the regional
office.
Mr. Runyan. No, but I am having the discussion, but we also
broke it down to just TBI cases and your numbers conflict
there.
Mr. Murphy. Yes, our numbers conflict there. The IG's
reports that you are looking at here are a sum of several years
worth of work. The numbers I am giving you are a sum of the
last 90 days worth of work. My point is this. When you look at
current, where we were and where we are, the IG report is much
more reflective of where we were, not necessarily where we are
sitting right now today.
Mr. Runyan. Ms. McCauley, can you respond to that?
Ms. McCauley. Yes. The numbers for TBI that we reported
they are 31 percent error rate, that was based on our first
round of inspections from 2009 to 2012. More recently we found
a 29 percent error rate and that was for our fiscal year 2013
inspections. As Mr. Murphy, suggested we do look at specific
high-risk type of claims. And so we are not looking across all
the different kinds of claims to come up with an accuracy rate,
but rather to focus in on those such as TBI or temporary 100
percent disability evaluations that have shown repeatedly to
have a high error rate.
Also, there is a big difference in terms of how we call
errors and how VBA calls errors. We do not focus just on the
benefits entitlements amounts. When we look at the claims, we
look at the processing of the claim, human error, system error,
processing error, did they follow regulations--all of that goes
into the accuracy of a claim. Sometimes the benefits
entitlement might be correct for the moment, but sometimes
there are errors that are made that could have potential impact
on benefits down the road, future benefits for the veteran. So
we look at the totality of the claims processing exercise.
Mr. Runyan. One more question. Talking about how you
compile statistics, does the VA keep track of accuracy an
appeal rate by the number of years of experience by the RVSR or
the DRO?
Mr. Murphy. Accurate from the standpoint of I can go back
to my office and give you a report that says this, no I do not
report it out that way on a routine basis. However, in
determining the training that we are doing, the types of
training that we are doing, where we are spending our effort,
where the errors, the high concentration of errors are, I use
that data every single day to determine exactly what training I
need to be doing, where I need to be concentrating it, even
down to the regional office level. And by tracking and looking
at errors at an issued based level, which we started doing more
than a year ago at this point, I now have the ability to go in
and say TBI is a high error rate in a particular regional
office and target just the raters that work TBI, as an example.
So to give you back to the office and give you a report and
say here it is, no, I do not track it that way. However, in all
of our training process and everything else that we do, that
information is considered on a regular basis.
Mr. Runyan. But what I, where my head is on this is is it
because of a lack of experience at some level? It came up in
the last panel, that maybe we do not even have enough people
with the experience to be able to rate these things. Is that
trackable in your statistics?
Mr. Murphy. Let me go back to your first question, Mr.
Chairman. This is an excerpt from the Waco report. It talks
about traumatic brain injury, reviewed 30 cases. Cases in error
that affect veterans' benefits: zero. Potential to affect
veterans' benefits, the difference of rules between how the IG
looks at it and how I look at it, is eight out of 30. There is
the 30 percent error rate that you are talking about. Did the
veteran receive the right check based on what they had? Yes.
Was there maybe a process that was done different but they got
the right benefit entitlement check? Yes. An error in the IG's
eyes, but when you look at that from the veteran focus that was
the right decision and the right compensation was received by
that veteran.
Mr. Runyan. We always have, what I am just trying to ask is
it possible to find the analysis of does someone that has more
experience in, say a certain regional office has more
experienced personnel in it, are you getting a better outcome
there?
Mr. Murphy. Are we getting a better output in the----
Mr. Runyan. With experience----
Mr. Murphy. Yes.
Mr. Runyan. --of the claim adjudicator?
Mr. Murphy. Yes, you are. No question.
Mr. Runyan. You track that?
Mr. Murphy. We track that. In fact, we did a what we call a
consistency study the first week of August. And we broke it
down with six questions that were sent out to all people. This
one happened to be on, I think it was diabetes, yes. And what
we did is we broke it down by lanes, we broke it down for the
quality review teams for the STARS staff, and I laid all of the
different segmented populations of work lanes. And by a long
shot, meaning in the mid to high 90 percent range, the special
operations lane got those questions right at a much higher
percentage, at the 93 or 94 percent rate, where the average for
the total population was in the mid-eighties. The point being
that the higher experience level, the better education, the
more training that we are doing with those individuals, is
yielding better results, more consistent results of higher
quality. At the same time we are concentrating those more
trained, more experienced people on the most complex conditions
that we are dealing with.
Mr. Runyan. If at all possible I would like to have staff
be able to reach out to you and maybe take a look at those
numbers?
Mr. Murphy. Yes, sir. I would be happy to provide that.
Mr. Runyan. I appreciate that. And I recognize the Ranking
Member Ms. Titus.
Ms. Titus. Thank you, Mr. Chairman. I would like to look at
those numbers, too, if we can get them back, try to get some
sense of or some order to them.
Mr. Murphy, I have been talking about pay as you rate a
good bit today because I think it fits in with this notion of
the three different lanes and how to deal with complex cases.
And we know that the VA has the authority to do pay as you
rate. And I wonder if you would talk about that? Talk about
what the problems are, of why you do not use it more often. And
is the problem of how VA compensates the people who make these
decisions based on a full claim decided, or a part claim,
something we can address? That is, the concerns that were
brought up in the previous panel about it.
Mr. Murphy. The previous panel brought up comments about
you did not get work credit for it so it was not work.
Ms. Titus. Right.
Mr. Murphy. Without going down and saying yes, that is
right, no that is not right, let us take that as a base to talk
about what we are putting in place actively right now. Which is
exactly what you are describing. I receive a claim from a
veteran that has got ten issues on it. I need to break that
down into ten issues, and have maybe one rater rate ten, maybe
have ten raters rate one each. But the point is this. Break it
down into ten individual issues. Make rating decisions on those
ten individual issues. And compensate the veteran if they are
entitled to it as those rating decisions become, as they are
made. And we move forward to do the other.
The problem with that is in the system we are working with
right now today, that is very difficult to do. And there are
some barriers in terms of it is much less efficient in the
amount of time that it takes our overall process to rate ten
individual issues at one each. The fixes that we are putting in
place will allow that to go significantly faster. And then our
intent is to do exactly that, which is rate by issue.
And so we understand what is in your bill. We have
testified on that previously, that we agreed with that bill in
concept. But at this point in time there were some
complications due to our system limitations.
Ms. Titus. Well when do you anticipate that those changes
will be made?
Mr. Murphy. I cannot put an exact date on it for you. But
what I can tell you is every 90 days we do a new release at
VBMS and I am not sure which one of those releases that some of
these changes are in. One of the changes that is going in that
is being piloted right now in one regional office is the VBMSA,
or authorization module. And we need that in place in order to
help these individual issues as they are decided to move
through the system quicker. In other words, when I have the
VBMS authorization module in place I will be able to process
these individual issues without impacting the total system
time.
Ms. Titus. And will there be safeguards in place so that
you do not just pay a veteran off for a few things and think he
will go away, as opposed to really completing the entire claim?
Mr. Murphy. Yes. We are looking at breaking this down so
that it comes in as a single claim but it is posed in our
system and we track it as though there are ten individual
claims. So this is not just a, I am going to receive a claim
and then I am going to break it up and process by issues. This
is a true issue-based tracking, issue-based reporting, issued-
based quality, everything.
Ms. Titus. I know that some of the cases that are in the
Reno office have been farmed out to other offices where they
can be moved faster. If you start breaking a claim down so that
some of the things are easy and some are more complex end up in
different lanes, you are not going to end up in two different
places, are you for your claim to be completely considered?
Mr. Murphy. Well depending on Mr. Michaud's question just a
little while ago about Centers of Excellence, we certainly need
to consider whether those two issues that are in two different
lanes even need to be in the same regional office. Why if we go
with the concept of Centers of Excellence, and Detroit happens
to be on issue number one and St. Petersburg issue number two,
why would we not send that claim? Because it is seamless now
once I have it in the electronic environment. I can move them
around the country by just a few keystrokes. So we still do not
have the final this is exactly how it is going to be, but we
are exploring the options from how do I get it through our
system right and fast?
Ms. Titus. We just don't want to make it more difficult for
our veterans to be able to track where their claim is or
understand what's happening with it and when it's happening
without scattering it around or making it more complicated.
Mr. Murphy. Yes. And you're seeing that. You are--one of
the information points I'm sure you're interested in is the
number of cases you currently have broken up from the regional
office. It's under ----
Ms. Titus. That's right. And we're waiting for some of
those answers.
Mr. Murphy. It's just under 700 right now. And it's--you've
heard what we are doing with the two-year-old claim and the
one-year-old claim and now moving to the 334 days. If the
capacity of the regional office isn't in place in order to meet
the time lines that we're putting in to meet these different
deliverables on the oldest claims, we're shipping them off to
other regional offices.
In other words, we're making the oldest claim issue a
national problem, and not one tied to a particular regional
office. It just so happens that in Reno today, they happen to
have a large number of the older claims, so we've sent those to
other regional offices that have capacity to get those veterans
done in a timely manner.
Ms. Titus. Thank you.
Mr. Runyan. Thank you, gentle lady. And I'll recognize Mr.
Michaud.
Mr. Michaud. Thank you, Mr. Chairman, and I want to thank
this panel as well for your testimony today. Mr. Murphy, VBA
currently adjudicates claims related to Camp Lejeune in
Louisville, Kentucky, and claims related to radiation in
Mobile, Alabama. Can you explain to the Committee why this is?
Mr. Murphy. Well, those claims actually fall under the
title of this hearing. They are complex claims. They are highly
complex claims. And what we don't want to do is we don't want
to have a veteran, because they went to Regional Office 1, get
one decision--an equivalent case go to Regional Office 2 and
get a different rating decision.
So in order to do that, in order to concentrate our efforts
and because of the way we were doing claims in the paper world,
we concentrated them in single places. We provided special
training for the processors and raters that worked the claims,
and then at the same time, we went back and worked with VHA and
provided training to the individual C&P examiners that would be
working these particular types of conditions and then sent that
back to a single, jointly trained rating board so we get a
consistent, accurate output.
So those two areas are specialized in those particular ----
Mr. Michaud. Absolutely. Okay. For the OIG, Ms. McCauley,
throughout your inspections on these difficult medical
conditions, how often is training and a lack of knowledge
regarding policies and procedures is a problem? How often is
that?
Ms. McCauley. It certainly has shown itself to be a problem
as a result of our inspections. For example, in TBI, it's been
said repeatedly today about the complexity of the policies for
rating TBI claims. We did find that additional training was
needed in the TBI area for the raters to be able to rate claims
correctly, especially with regard to the issue of inadequate
medical examinations--making sure they return them to the
medical practitioners so that they get the adequate information
they need to rate those claims.
Mr. Michaud. Okay. In consideration of your response, do
you think a veteran would benefit from having teams where
specialty--that are specially trained and focused on complex
conditions such as TBI, MST, and PTSD, similar to what we just
heard Mr. Murphy mention about Camp Lejeune and radiation in
Mobile, Alabama?
Ms. McCauley. Well, we haven't examined the issue of the
specialized claims, but certainly additional training would be
a help in terms of adjudicating those claims.
Mr. Michaud. So the better trained, the better specialized
the workers are in the work that you have done, the more
accurate they can and timeliness that they can process those
particular claims?
Ms. McCauley. We would expect that, yes.
Mr. Michaud. All right. Thank you. Mr. Murphy, just to
follow-up on my previous questions about Camp Lejeune and
Mobile, Alabama where you specialize in those particular areas,
one of the problems I've seen over time being on this Committee
is--and particularly in some regional offices where the error
rate is over, as you heard the Chairman, over 50 percent. When
you look at the turnover rate in those areas, they might not be
an employer of choice, and you're constantly training
individuals, and particularly with our veterans coming back
from Iraq and Afghanistan with TBI and PTSD and MST issues, I
think it's important that with the new VBMS system, I like the
idea when you're looking at the medical conditions, because
with the medical conditions you can move that anywhere around
the country in a timely fashion. So if there is a certain
regional office that is specialized, such as Camp Lejeune in
Louisville, Kentucky, to deal with those issues, that they can
get an accurate decision in a timely manner.
I understand some of the concerns that some of the VSOs
might have that it's all not done in a regional office. Well,
it's not done anyway when you look at a lot of the cases that
are being brokered to other areas because they are not
performing adequately. I would like to just, you know, see
whether or not you would really consider looking at, you know,
centers of excellence for those very complex cases since you
can move it electronically once the VBMS system is up and
completely running fully.
Mr. Murphy. We would consider the centers of excellence
concept. In fact, my staff is going through now, pulling
numbers in terms of accuracy, rating capacity, et cetera, on
regional offices right now to identify are there some clear
outliers that say, this should be a COE for PTSD; this one
should be for military sexual trauma; this one should be for
TBI. So we're going through that process now. We're just
beginning that process. It's not quick. It's going to take some
time to do the--to make sure we get it right.
But if there are some centers of excellence that are doing
it right out there now, there's some lessons for it. Number one
is, should I make them the center for all over the country, and
number two, if the answer is, no, I should not, then what are
they doing different to get it right that I need to teach the
other regional offices? So either way it goes, this analysis
that we're doing is going to yield good things for us.
Back to the other part of your question which was the VSOs
having some concern about them not being able to have that
interaction and look at the file and review it. In the paper
world that was a problem. In the electronic world with the
stakeholder enterprise portal we have in place and the very
shortly coming up releases which will allow them to see much
more of the claim filed and the decision that is being made,
they'll be able to perform that review from anywhere in the
country, regardless of what regional office is working that
file.
Mr. Michaud. I appreciate that answer because for me, I
think our number one priority should be making sure the veteran
is taken care of, not whether or not that claim is processed in
a regional office, particularly if that regional office is not
performing the way it should be. So thank you very much. Thank
you, Mr. Chairman.
Mr. Runyan. Thank you, gentlemen, and I actually have
another question. I know Mr. O'Rourke is going to come back. So
Mr. Murphy, your testimony highlights that VBA has improved
policies and procedures to ensure more timely and accurate
decisions to veterans of complex claims.
Setting aside the discussion we just had about strong
concerns on how VBA calculates accuracy, VA's work towards
better policy and procedure is welcome. But what the Committee
is hearing from the IG is that a regional officer repeatedly
failing to comply with the policies that are in place, to
auditors, directors, and managers, this can be a theoretical
exercise, but to the veteran who is underrated or denied
because a regional office is not compliant, this is a complete
failure. And as I read the American Legion's testimony, for
those and its quote: ``For those veterans, VA's accuracy might
as well be zero. The Inspector General consistently reports
that the need for policy guidance, oversight training, and
supervisory review, and yet 17 of 20 recently inspected offices
remain or non-comply with VBA policies, most of which were
found to be repeatedly out of compliance.''
How are you going to enforce compliance or to put it
another way, what will be the penalty for non-compliance?
Mr. Murphy. I can't answer directly your question on what
will be the penalty for non-compliance. That falls under the
Office of Field Operation and Deputy Under Secretary Rubens.
However, I can tell you what we're doing to ensure compliance
is happening. And the solution is not going out yelling at
regional offices' directors and telling them you must solve the
process. The solution is for me to put a system in place which
takes them down that path, and the right way becomes the path
of least resistance.
An example of how we're doing that today is, number one, I
talked about how we changed the rules around PTSD, so we no
longer had to go away and make a determination about the
stressor and get a buddy statement saying, what happened? We
changed the rules so that if the veteran came in and said I was
in fear for my life, they served in a hostile environment, you
order an exam and you assess them for PTSD. So that's the way
we handle it from the rule side.
When I look at it from the what system am I putting in
place to ensure at a grassroots level, I got to take this back
to the temporary 100 percent. And the example there is, in the
system we've put in place with VBMS, you can no longer just hit
a button and move through a screen. You're forced to stop and
put a routine future exam date in place and place that item
under control before the rater is allowed to press the button
and move to the next screen. The point is, I forced the
behavior without having to go out and push and discuss and come
back and reexamine. I know that it's happening, because I can
track it and I can see it on my system, and I pull a report
every two weeks. And that every two-week report, last year I
was seeing 600 cases. Now I'm seeing 50 cases.
And the reason for that is, today there is somewhere in the
neighborhood of 74, 75 percent of our cases are electronic
through VBMS. We are still working through the last of the
paper. So, as we move to the electronic environment, the
compliance rate will go up and then I'll see that number drop
over time.
So the answer to your question is I fix it by putting
procedures in place that drive the RO in the right direction,
and I put system fixes in place that force the behavior that we
need to have to ensure the veteran gets the right decision.
Mr. Runyan. And before I yield to Mr. O'Rourke, I would
remind you and remind everybody how many times Secretary
Shinseki has sat there and talked about accountability, and how
are we going to hold people accountable. And that's ultimately
where we have to get to. You can do all the systematical stuff
you want. If you're not motivating people to do it--I know they
are highly motivated people; they want to do right by the
veteran. But there's a lack of accountability there, and this
is across the board. But, with that, I'll yield to Mr.
O'Rourke.
Mr. *O'Rourke.* Mr. Chair, thank you. I apologize for
missing part of the second half of the hearing, and I'll get an
update from those who are here about how you responded to some
of the specific issues raised by Mr. Price and Ms. McNutt, and
the veteran service organizations that were here. But so just
briefly I'll bring up two issues. One is in El Paso at Fort
Bliss, we have 1,800 IDES cases; 1,100 of those are backlogged
at the DRAS site in Seattle. And so, just a plea from Colonel
Hymel at William Beaumont from us in our office representing
those soldiers. You know, whatever you can do to provide
additional attention and focus on that so that we can get those
folks through there.
We have some associated problems with our Wounded Warrior
transition unit there, and part of that is having these folks
who are in this backlog disappear in the bureaucratic loop.
The second one, you know, Ms. Price mentioned that she
filed a fully developed claim and took us through every part of
what she went through to do that. You know, we've been pushing
for fully developed claims filed on-line. We think that through
things like the Faster Filing Act and other initiatives that
have come out of this Committee, we can cut the wait time,
which in El Paso right now for a typical veteran is 450 days
out of the Waco Regional Office down to something like 100 or
less.
So I want to just pick up on what Ms. Price said and I want
you to address the concern that that raised with me and others,
that there may be a problem will fully developed claims, and
our ability to process them in a timely fashion and do so
accurately.
Mr. Murphy. Let me start with IDES. Yes, we understand
exactly what you are talking about and with Fort Hood and
Department of the Army----
Mr. *O'Rourke.* Fort Bliss.
Mr. Murphy. Fort Bliss. Sorry.
Mr. *O'Rourke.* Yeah.
Mr. Murphy. With Fort Bliss, and we put some definitive
actions in place--that you'll see the numbers that are--that
regional office, that DRAS site--start going in the right
direction. First of which is in April, all of the employees at
the Seattle D1BC--Day 1 Brokering Center. We shut down the Day
1 Brokering Center and rolled it into the IDES site. What that
does is it gives them immediate trained capacity to go in and
start working IDES cases.
Two, in May of 2013 we hired an additional 36 raters in
that regional office. Now that sounds like, oh, they've been
there since May, but the reality is they just started working
last month, because they just completed challenge training and
now they're in production, working in the DRAS, working cases.
In May of 2013, Army Reserve personnel were activated and
deployed in Seattle to help the DRAS site in getting these IDES
cases through quicker. Staff at the regional office has been
working mandatory overtime from mid-May to November of this
year, and right after the holidays they will resume mandatory
overtime through 2014, provided the funding is available to us.
One other item that we've done with that is we had capacity
in Providence to take some of those cases, because they were
working faster. So 250 cases per month are being brokered to
Providence in order to help take some of the pressure off of
the DRAS site in Seattle. So I think in the coming months
you're going to see drastic changes in there.
One other comment about the IDES process in general. To
look at the IDES process and say it's merely a simple claim is
to call a complex--is really a complex claim is to call a
complex claim a simple one. My point is this: these are the
most complex of complex cases for veterans that are still
serving. They take additional care. They take additional
requirement, and they take joint cooperation between the VA and
the Department of Defense. As a result, a timely claim going
through the IDES process is measured at 295 days, not the 125
days like we see for the traditional rating window.
The second part was about Ms. Price and the FDC, and I
guess I'm not sure exactly what it is that you are asking me
there, Congressman.
Mr. *O'Rourke.* Well, I guess the concern was--and I
apologize again. I've missed almost everything that you've had
to say in response to the stories that we heard earlier. So you
may have already answered many of the concerns raised. But one
of those among many that were raised was that Ms. Price, I
believe before transitioning out, had already prepared and
filed a fully developed claim and yet she had this incredibly
arduous long battle to get that claim adjudicated in a
satisfactory way. And so it causes concern for me and others
when we're trying to direct veterans to file those fully
developed claims on-line and we're telling them that they can
get those claims resolved. And in some cases, and I think the
majority of cases, close to 100 days versus the average pass of
450 days, a story like Ms. Price's gives me some pause, and I
just want to know whether that is truly exceptional, or whether
there is more to that. And she seemed to indicate from other
veterans that she had met with and assisted that she's seeing
similar cases to hers.
And so, just wanted to get your quick feedback on that, and
again, if you've already answered it or you'd like to answer it
in more detail at a follow-up meeting, I'd be happy to meet
with you then. But if you could just quickly talk about how
exceptional a case like that is.
Mr. Murphy. I have to stay off discussing an individual
veteran and that veteran's circumstances. But what I can tell
you is this: based on the time frame that Ms. Price submitted
her claim, 2009, when we were receiving fully developed claims
at less than two percent, to today we are receiving 27 percent
of those claims. They are going through with our highest
priority and they're being tracked and monitored on a national
basis at a national level.
So my point is this: the experience that she saw is by no
means typical of the process you are seeing today when the
claims are going through in 115-120 days, through the fully
developed claim process.
Other things that have happened is in the very early stages
of it we had a high rate of those claims that were entered into
the fully developed claim process and for various reasons--
right, wrong, or otherwise--were removed from that process and
put through the normal channel. We track and monitor that
routinely now to make sure that a fully developed claim that
comes in maintains its path through the fully developed claim
process.
There are specific rules that will pull that claim out of
that process. But now that we've put these controlled measures
in place, it's not being used or abused--it's not being used to
the rate it was when the fully developed claim program was new.
Mr. *O'Rourke.* Okay. Thank you. My time has expired, Mr.
Chair. I'll yield back. Thank you.
Mr. Runyan. Thank the gentleman. Any members have any
further questions? No? On behalf of the Subcommittee, I thank
you all for your testimony. You are now excused. I thank
everyone for being here with us today.
Ensuring that our veterans receive timely and appropriate
decisions regarding their service-connected claims is a top
priority for both this Committee and the Department. It is
unacceptable for the price that is--timeliness to be the
accuracy of those decisions, and we'll certainly be seeking
more information in the near future on areas discussed as VA
continues to march towards the Secretary's 2015 goals.
I'd like to once again thank our witnesses for being here
today. I just announce consent that Members have five
Legislative days to revise and extend their remarks and include
any extraneous material.
Hearing no objections, so ordered. Thank the Members for
their attendance today, and this hearing is adjourned.
[Whereupon, at 6:16 p.m., the subcommittee was adjourned.]
APPENDIX
STATEMENT BY JEFFREY C. HALL ON DISABLED AMERICAN VETERANS
Chairman Runyan, Ranking Member Titus and Members of the
Subcommittee:
On behalf of the DAV (Disabled American Veterans) and our
1.2 million members, all of whom are wartime wounded and
injured veterans, thank you for asking DAV to submit testimony
for the record on the Department of Veterans Affairs' (VA)
adjudication of complex disability claims and ensuring quality,
accuracy, and consistency on complicated issues. As the
nation's leading veterans service organization (VSO) assisting
veterans seeking disability compensation and other benefits,
DAV has tremendous experience and expertise relating to the
processing of claims as well as the various ways veterans may
appeal adverse actions and decisions.
Mr. Chairman, for the first time in years, some good news
is coming out of the Veterans Benefits Administration (VBA) in
regard to the backlog of veterans' disability compensation and
pension claims. Despite a partial government shutdown that
disrupted progress for most of October 2013, VBA appears to
have finally turned a corner for the first time in more than
two decades. However, despite the laudable progress and
milestones that have been achieved, significant work remains to
be done before VBA can hope to completely eliminate the backlog
and reform the claims processing system so that every claim is
done right the first time, including the most complicated
claims.
At the beginning of 2013, there were more than 860,000
pending claims for disability compensation and pension. By the
end of the year, that number had dropped by more than 20
percent, down to about 693,000 pending, a reduction of more
than 20 percent. The number of claims in the backlog - greater
than 125 days pending - dropped by more than a third, from over
611,000 in January 2013 to less than 392,000 at present. VBA
also increased the number of claims completed each month from
an average of about 89,000 during the first four months of the
year to more than 110,000 over the final eight months of the
year; however the cause is unclear. VBA also reports that the
average days for rating pending claims has dropped this year
from 280 days to under 180 days, and there are virtually no
claims remaining that have been pending for more than a year.
The most important factor driving VBA's productivity gains
was undoubtedly the policy of mandatory overtime for claims
processors that ran from May through November. During this six
month stretch, VBA achieved significant boosts in the number of
completed claims per month, reaching as high as129,488 in
August, before dropping back down during the shutdown and after
mandatory overtime ended before Thanksgiving. The other key
factors boosting claims production were likely the increased
focus on fully developed claims (FDC), which rose to more than
12 percent of VBA's claims inventory, and the continued
professional development of VBA's newest employees hired during
the past five years. Although VBA finished the roll out of both
Veterans Benefits Management System (VBMS) and the new
Transformation Organizational Model (TOM) last year, this
likely had only a marginal influence on productivity increases
last year since there is a learning curve that both employees
and management must complete before they reach their full
productive potential with new systems.
While the drop in the backlog was certainly good news, even
more encouraging was the steady increase in the accuracy of
claims produced throughout the year, as measured by the
Systematic Technical Accuracy Review (STAR) teams. According to
VBA, their 12-month measure for rating claims accuracy rose
from 85.7 percent at the beginning of the year to nearly 90
percent by the end of November. Although this remains far from
the 98 percent accuracy goal put forward by the Secretary, it
is a significant improvement. As VBA officials regularly point
out, however, when using an issue-based standard, rather than
claims-based since one claim may contain many separate issues,
the accuracy rate is even higher, approaching 97% during the
final months of 2013.
There are several likely causes for the increased accuracy
of rating claims. First, statutory and regulatory changes have
eliminated virtually all errors related to the duty to notify
veterans of their rights under the Veterans Claims Assistance
Act (VCAA), since the required notice is now included on the
application form itself. Inadequate VCAA notice had
historically been one of the largest categories of STAR errors
Second, the use of VBMS has automated many of the required
development steps required to properly prepare a claim to be
rated, such as scheduling compensation exams and routine future
examinations, thereby reducing the number of these types of
errors by more than 50 percent. Third, rating calculators and
other automation tools have helped to prevent inaccurate
ratings because the system will not accept disability
evaluation levels outside certain parameters established for
each diagnostic code. Finally, VBA's new Quality Review Teams
(QRTs) have had a positive effect on the quality and accuracy
of ratings.
All of this progress comes after four years of
comprehensive transformation - that included implementation of
new organizational and operating processes, new IT systems, and
new training, testing and quality control regimes - all
designed to reach the Secretary's ambitious goals for 2015 of
all claims within 125 days with 98 percent claims accuracy.
One of the cornerstones of this transformation is the TOM,
which is based upon the segmentation of claims based on their
complexity. At the beginning of the new process, VBA's
traditional triage function has been replaced with a new Intake
Processing Center that puts an experienced Veterans Service
Representative (VSR) at the front end of the process to divide
claims along three separate ``lanes:'' ``Express,'' ``Core,''
and ``Special Ops.'' The Express Lane is for claims that are
less difficult, such as those that are fully developed or those
containing one or two issues, etc. The Core Lane is for
processing claims involving three to seven contentions, as well
as claims for individual unemployability. And the Special Ops
Lane is for more difficult claims, such as those with eight or
more contentions, long-standing pending claims; complex
conditions, such as traumatic brain injury (TBI), post-
traumatic stress disorder (PTSD), military sexual trauma (MST),
special monthly compensation (SMC), and other claims requiring
extensive time and expertise.
VBA estimates that about 30 percent of claims will be
processed through the Express lane, about 60 percent through
the Core lane and about 10 percent through the Special Ops
lane. In each of these lanes, integrated teams comprised of
VSRs, RVSRs and Decision Review Officers (DROs) work in close
proximity so that they can better coordinate their efforts and
increase production. Although there have been increases in both
production and quality over the past year using the TOM, VBA
must regularly measure, carefully analyze and continually
improve its new operating procedures to fix problems and
maximize efficiencies. We have been particularly interested to
learn whether VBA might be tempted to more resources and
personnel in the Express Lane as a tactic to generate greater
production and artificially lower the pending backlog of
claims. While such a redistribution of VBA resources would
allow VBA to move a larger number of simple claims more quickly
and thus lower the number of pending claims, it would force
much longer delays on veterans awaiting decisions on the more
complex claims, including those with eight or more contentions,
or those suffering from PTSD.
DAV recently surveyed a number of our National Service
Offices to learn more about how VA Regional Offices (VARO) were
distributing their personnel among the lanes and found wide
variations. For example, at one VARO, the distribution of VSRs
and Rating Veterans Service Representatives (RVSR) among the
lanes was 31 percent in the Express, 56 percent in the Core and
13 percent in the Special Ops. At a similar sized VARO, the
distribution was 48 percent in the Express, 22 percent in the
Core and 30 percent in the Special Ops. While the needs in each
particular VARO differ, there is clearly a disparity in the
amount of personnel assigned to a particular lane. In some
VAROs, DAV's National Service Officers (NSOs) observed that the
distribution appeared to be reasonable based on their
observations of the makeup of that particular VARO's workload,
while others observed understaffing of one or more of the
segmented lanes. Others commented that too often VARO personnel
were being shifted from one lane to another based upon the
current month's priority. It is essential that VBA be aware of
such wide ranging differences among VAROs, analyze both
workload data and the distribution of resources, and ensure
that sufficient personnel are being assigned to each of the
lanes, particularly the more complicated claims that require
greater time and expertise.
According to VBA, employees working within the Special Ops
Lane are individuals who possess the highest skill level, and
are required to complete an additional 20 plus hours of
training and testing on more complex issues such as TBI and MST
to ensure accuracy when preparing a rating. Additionally, all
ratings in the Special Ops Lane require a second signature
until the RVSR has demonstrated a 90 percent accuracy with
consistency. While the exact number of necessary personnel
assigned to handle the more complex claims like TBI, PTSD,
etc., within the Special Ops Lane, or their respective
experience level is difficult to ascertain, DAV believes these
individuals should be the more experienced and skilled
employees, particularly RVSRs.
Another concern expressed by some of DAV's NSOs was that
VBA was sometimes placing claims in the wrong lanes: complex
claims going through the Core lane or too many multi-issue
claims being directed to the Express lane. In order to prevent
these errors in directing claims to the right lane, VBA must
ensure that the personnel at the Intake Processing Center of
each VARO have the proper training and experience required to
make these crucial decisions.
A related concern we have is that VBA may be neglecting the
preparation of claims awaiting certification to the Board of
Veterans' Appeals. There have been reports that some VAROs have
redirected some VSRs and RVSRs who normally work on preparing
appeals instead to work only on claims that contribute to
lowering the backlog. Again, such an approach may yield short-
term gains in reducing the claims backlog, but it will have
longer term negative consequences for the growing backlog of
appeals, which now stands at more than 266,000.
In order to continue incentivizing quality and accuracy
along each track, especially the Special Ops lane for
complicated claims, VBA must also ensure that performance
standards are adjusted appropriately for VSRs' and RVSRs' work
on each of the different tracks within the new organizational
model. Production standards for VSRs and RVSRs handling the
simplest claims must be different from those handling the most
complex, which take more time per claim. Employees handling
complex Special Ops claims should not be held to the same
performance levels in terms of claims completed per day as
those handling simpler Express claims.
Understanding that this model will continue to change as
technology evolves concurrently, it would be wise for VBA to
consult with the American Federation of Government Employees
(AFGE) and other labor representatives in developing a mutually
acceptable framework for quickly adjusting performance
standards in the future as conditions merit. As new processes
and technologies come online, it is imperative that VBA be able
to make timely adjustments to performance standards to ensure
that production pressures do not outweigh the goals of accuracy
and quality. DAV believes that VBA must develop a scientific
methodology for measuring the resources (primarily personnel)
required to accurately and timely process the current and
future anticipated workload, as well as a new model for
allocating those resources among VA regional offices.
One of the keys to reducing the backlog has been and will
continue to be the FDC program. DAV continues to actively
support the FDC program and by the end of fiscal year 2013,
nearly 25 percent of all claims submitted to VBA were filed
through the FDC program. This approach not only lowers the
burden on VBA employees, it also results in faster and more
accurate claims decisions for veterans. However, we recognize
that not all claims can be filed as ``fully developed'' and VBA
must continue to maintain and improve the manner in which it
processes complex claims.
Mr. Chairman, in order for VBA to complete the
transformation, end the backlog and decide each claim right the
first time, it must develop and inculcate a new work culture
based on quality and accountability. At a time when so much
national attention has been focused on reducing the number of
claims pending in the backlog, VBA must continue to place at
least equal emphasis on quality and accuracy, rather than just
speed and production. In fact, accurately deciding a veteran's
claim for disability should never compromised or sacrificed for
the sake of productivity. DAV has and always will maintain the
VBA's attention and focus should be on generating decisions
that are right the first time. This particularly applies to
those claims that are more complex and complicated.
Unfortunately, most of the metrics that VBA employs today
are based primarily on measures of production, rather than
quality. For example, the most common way to measure the VBA's
progress is through its Monday Morning Workload Reports, which
contain measures of production, but not accuracy or quality.
Another major tool used to review VBA's status is its ``Aspire
Dashboard,'' which provides current performance statistics for
each VARO, and provides national totals. Like the Monday
Morning Reports, however, the Aspire Dashboard metrics are
primarily related to pending work inventory and production
times, with only a few measures of accuracy included. VBA must
develop new and realistic metrics and performance measures at
every level in the process: from claims processors to regional
office management to central office leadership.
VBA must continue to make the changes to its work culture
so that quality and accuracy are the cornerstones of all their
activities, especially in dealing with complex claims. DAV
believes that VBA's creation of Quality Review Teams was a
powerful statement of VBA's commitment to quality. QRTs perform
several functions: they conduct local quality reviews, perform
in-process reviews and provide select training. In particular,
the in-process reviews, often referred to as ``mulligan
reviews,'' allow errors to be corrected before they negatively
affect a rating decision, and without penalizing the VBA
employee. VBA must continually evaluate and improve its
training, testing, and quality control programs in order to
truly reform the claims system over the long term.
Another key to changing VBA's culture is how well they
invest in the training, testing and professional development of
its workforce. Over the past several years, VBA has
reengineered its ``challenge'' training program for new
employees, which consists of four weeks of in-station training
via ``live meeting'' software, followed by four weeks of in-
residence training at the Baltimore academy or other
centralized locations around the country. Every employee is
also required to complete continuing training of 85 hours per
year coupled with required testing. In addition, VBA has
developed a new training program called Station Enhancement
Training (SET), which requires all employees at targeted poor
performing VAROs to undergo comprehensive training together for
one week. First begun at some of VBA's lowest performing
stations, including Oakland, Los Angeles and Baltimore, SET
allows employees to review and refresh their knowledge, while
also providing structured time to work live cases under the
supervision of the training staff. VBA has reported that SET
training not only increased quality, it also boosted morale of
employees and VBA expects to continue SET training in 2014.
Finally, VBA's transformation strategy depends on the
successful implementation of new technology, including the
VBMS, the Stakeholder Enterprise Portal (SEP), an expanded e-
Benefits system with VONAPPS Direct Connect (VDC), and the
Virtual Lifetime Electronic Record (VLER) initiative. In terms
of processing claims, the most important technology is VBMS,
the paperless, rules-based system that VBA uses to create
electronic claims files, manage workflow and determine ratings.
VBA was able to complete implementation of VBMS ahead of
schedule in June and by the end of 2013, nearly all of VBA's
pending claims were processed using electronic files. Going
forward, VBA must continue to receive and allocate sufficient
funding for scanning paper claims forms and evidence, including
the back-scanning legacy files, and must monitor and work to
improve the quality of the scanned documents.
It is also vitally important to recognize that no modern IT
system or software is ever truly ``finished,'' In addition to
the funding required for maintenance of the VBMS system, VBA
must continue to make significant investments in VBMS
development for as long as this system is capable of meeting
VBA's needs. The coding and embedding of rating calculators
inside VBMS, for example, remains a labor-intensive, time-
consuming process and one that will continue as the VA Schedule
for Rating Disabilities (VASRD) is continually updated in the
future. Furthermore, as new IT technologies emerge, and new
requirements for VBA are identified, VBMS must evolve to
address those needs and opportunities, and that will require an
aggressive development program that has sufficient resources.
At the same time, VBMS must be carefully developed to ensure
that it also provides sufficient support for complex claims
that are not easily done through automated and rules-based
processes.
Mr. Chairman, while VBA should be commended for the
progress made in reducing the backlog of pending claims, now is
not the time for them or Congress to shift any resources or
attention away from their longstanding problems in processing
claims accurately and timely. DAV believes VBA's new
organizational model of segmented lanes is moving in the right
direction but there is still work to be one to ensure greater
consistency and efficiency throughout all VAROs.
By their very nature, complex claims are more difficult to
process from the development stage through final rating. VBA
must ensure that they assign the most skilled and experienced
individuals to process these claims as well as those at the
front end responsible for assigning claims to the proper lanes.
Ultimately, the success of VBA's transformation will not be
judged on how well they process the large number of simple
claims, but on how accurately and quickly they adjudicate the
most complex claims. Getting all claims decisions right the
first time is the only fair and equitable way to treat to our
nation's veterans, their dependents and survivors. Anything
less is unacceptable.
Mr. Chairman, this concludes my testimony. I would be happy
to answer any questions you or the Subcommittee.
PATRICIA DRISCOLL ON THE ARMED FORCES FOUNDATION
Chairman Runyan, Ranking Member Titus, and Distinguished
Members of the Committee, on behalf of the Armed Forces
Foundation (AFF), I would like to thank you for the opportunity
to share our views regarding the work the AFF does for recently
separated service members suffering from the invisible wounds
of war.
The Armed Forces Foundation is a 501(c)3 non-profit
dedicated to supporting and advocating for active-duty military
personnel, National Guardsmen, Reservists, military families,
and veterans. The AFF returns 95 cents of every dollar raised
to service members and their families through our programs.
Since 2001, the AFF has provided more than $75 million in
assistance by covering travel, hotel rooms, home mortgages, car
payments and everyday bills for families to be able to stay at
their loved ones' sides during treatment and recovery from
wounds suffered during war. With the launch of our Help Save
Our Troops campaign, the AFF proactively educates Americans
about the hidden wounds of war, including Post-Traumatic Stress
Disorder (PTSD) and Traumatic Brain Injury (TBI), and advocates
for those troops and veterans who have suffered these hidden
wounds. The ultimate goal of Help Save Our Troops is to reduce
military suicides. Through this campaign, the AFF provides
counseling services for military families, including children,
grants for therapy and addiction counseling, and runs a variety
of recreation group therapy programs to boost morale amongst
service members, veterans, and their families.
The program I would like to highlight today is the C.W.
Bill and Beverly Young Financial Assistance Fund, the largest
program administered by the AFF. The Fund provides direct
financial assistance to service members, veterans, and their
families facing financial hardship due to injuries and other
service-related situations. With the ability to provide money
to service members and their families from all branches of
service, the Foundation makes a valued impact on the lives of
those who serve the United States.
Due to the increasing number of recent veterans, the
Foundation is unable to fill all requests for assistance.
Currently, the AFF is only able to fulfill 18 percent of all
requests made. This is why our Board has limited the parameters
of the Fund to active-duty service members, reservists,
guardsmen, and service members who have separated from the
service within the past 18 months. Additionally, the Board has
established we distribute, each year, at least 90 percent of
our funds raised. We do not sit on the cash that is donated.
Since the Fund's inception, millions have been distributed
in the form of direct financial grants. Cases are reviewed on a
monthly basis and payments are made directly to creditors or in
the form of gift cards to in order for veterans to provide the
basic essentials for their families.
Of the cases reviewed thus far in 2013, 35 percent of
grants awarded have gone to recently separated service members.
Of these cases, exactly 50 percent have been diagnosed with
Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury
(TBI), or both.
These statistics are startling to me, given the fact the
National Institute of Health estimates 1 in 5 veterans of OIF/
OEF suffer from PTSD. Even more troubling is the recent VA IG
report findings that VA offices are not handling PTSD cases
correctly.
With the ever growing backlog of VA claims and the
inability to process these complex claims correctly, our
nation's veterans are struggling at home to pay their bills and
put food on the table.
This is where the AFF is proud to step up and fill the gap
as veterans' claims are in limbo. As PTSD diagnoses increase
each year, so to do the requests for financial grants, as more
time lapses before a rating is assigned to veterans suffering
from the invisible wounds of war.
Again, the AFF would like to thank you for the opportunity
to present our thoughts on this important issue that many
veterans face. We look forward to working with this Committee
to find a solution to the problems being pushed onto veterans.
STATEMENT OF THE TRAGEDY ASSISTANCE PROGRAM FOR SURVIVORS
(TAPS)
Hearing: ``Adjudicating VA's Most Complex Disability
Claims: Ensuring Quality, Accuracy and Consistency on
Complicated Issues''
We are pleased to have the opportunity to submit this
testimony on behalf of the Tragedy Assistance Program for
Survivors (TAPS).
TAPS is the national organization providing compassionate
care for the families of America's fallen military heroes. TAPS
provides peer-based emotional support, grief and trauma
resources, grief seminars and retreats for adults, Good Grief
Camps for children, online and in-person care groups, casework
assistance, connections to community-based care, and a 24/7
resource and information help line for all who have been
affected by a death in the Armed Forces. Services are provided
to families at no cost to them. We do all of this without
financial support from the Department of Defense. TAPS is
funded by the generosity of the American people.
TAPS was founded in 1994 by a group of surviving families
following the deaths of their loved ones in a military plane
crash. Since then, TAPS has offered comfort and care to more
than 40,000 people. The journey through grief following a
military death can be isolating and the long-term impact of
grief is often not understood in our society today. On average,
it takes a person experiencing a traumatic loss five to seven
years to reach his or her ``new normal.''
TAPS has extensive contact with the surviving families of
America's fallen military service members, making TAPS uniquely
qualified to comment on issues affecting the survivors left
behind. TAPS received an average of 13 newly bereaved survivors
per day in 2012. Survivors are referred to TAPS through our
relationships with the Armed Services casualty assistance
officers and direct contact from those who are grieving the
death of someone who died while serving the Armed Forces.
In 2012, 4,807 new survivors came to TAPS for comfort and
care. In 2013, the number of newly-bereaved military families
coming to TAPS for care and support continues to climb. Between
January 1 and October 24, 2013, TAPS sadly welcomed 3,471 newly
bereaved survivors for care and support. Causes of death were
reported as follows by military families turning to TAPS for
help and support:
Suicide or suicide suspected22.88 % (794)
Hostile action/killed in action/Navy Yard shooting22.47 %
(780)
Accident - auto/aviation/other22.13 % (768)
Sudden illness17.11 % (594)
Unknown cause of death10.89 % (378)
Homicide 2.74 % (95)
Non-hostile/non-combat incidents 1.73 % (60)
Friendly-fire 0.06 % (2)
We would like to submit the following statement on
adjudicating VA's most complex disability claims.
Survivor benefits are intrinsically linked to veteran
disability claims filed with the Department of Veterans Affairs
(VA). Eligibility for VA survivor benefits for the surviving
spouse and/or children hinges on establishing a military
service connection to the cause of death. When a service
connection is not recognized by the VA, the surviving spouse
and/or children will often struggle to obtain survivor
benefits.
These benefits and services provided by the VA for spouses,
children and parents of service members and veterans are
significant and can directly impact the quality of life for
survivors. These benefits can include: dependency and indemnity
compensation, parents' dependency and indemnity compensation,
survivors' pension, the dependents' educational assistance
program, the post-9/11 G Bill: Marine Gunnery Sergeant John
David Fry Scholarship program, and home loans. Survivors can
also receive the following services from the VA if they are
eligible: educational and vocational counseling, beneficiary
financial counseling, civil service preference, commissary and
exchange privileges, and fiduciary services.
The following data is from the quarterly Monday Morning
Workload Reports published online by the Veterans Benefits
Administration (http://www.vba.va.gov/reports/mmwr/).
[GRAPHIC] [TIFF OMITTED]
* Award adjustments: Involves the modification of benefits
based upon additional ancillary factors. Such activity usually
occurs when a Veteran or survivor is currently entitled and
receiving benefits, such as adjudication of dependency issues.
** Accrued benefits: Benefits not paid prior to the death
of a Veteran or survivor based upon a pending claim at the time
of death which is later granted.
Progress has clearly been made by the VA in 2013 to reduce
the number of survivors waiting over 125 days for benefits who
are filing initial claims, pension claims, or burial benefits.
These categories show some improvements, with volume lowering.
Even with these improvements, thousands continue to wait
over 125 days (more than four months) for benefits to be
processed. The number of survivors waiting for award
adjustments (dependency), accrued benefits and appeals
continues to climb.
TAPS is seeing an increasing number of survivors seeking
assistance with complex VA claims for survivor benefits. In
these situations, military service connection to the cause of
death is not established prior to the death, often because the
veteran had not applied for VA disability compensation for him
or herself prior to the death, and because the death was not an
active duty death.
In these situations where service connection to the death,
and therefore eligibility for survivor benefits, is denied by
the VA, the grieving survivor must prepare evidence and appeal
to the VA in order to qualify for survivor benefits. Often
these cases involve a veteran who died by suicide. Their
traumatized families must compile significant dossiers
including military service records, health records, and
statements from colleagues and friends of the veteran. Often
these appeals can take years, while the surviving spouse,
children and parents suffer without the benefits to which they
are entitled to under law.
In one case, a widow of a Navy veteran who died by suicide
at age 29 in 2011, has spent the last two years attempting to
prove service connection to her husband's death and been denied
twice by the VA. At the time of the death, their dependent
children were ages 5 and 7. Her husband was under VA care at
the time of his death, attempted suicide while under VA care,
and he did not file a claim for VA disability compensation
while alive because he felt there were others who were more
deserving of support. There are medical treatment records on
file for him but he did not apply for service connected
disability compensation prior to his death. She states that one
of his VA caseworkers said to her that if he wanted to die by
suicide, there was nothing that she could do to stop it. She
believes her husband's problems may have been linked to
problems he experienced coming out of anesthesia for a hernia
surgery at the VA. After the surgery, his wife states that his
mental health declined and he talked about trauma he had been
exposed to while in the military. She interred her husband in a
national cemetery managed by the VA in Bushnell, Florida. She
states that a month after his funeral, she received a letter
from the VA saying his military personnel and service records
were lost, so she had to scan his entire service jacket and
send it to the VA in order to apply for survivor benefits. Her
applications for benefits have been denied twice. The widow and
their two young surviving children would benefit greatly from
the benefits that military service connection to the death
would permit. She is currently making a decision on whether to
appeal the VA's decision and attempt again to prove service
connection to the death. Her case illustrates many of the
challenges survivors with complex VA claims face.
We thank the subcommittee for accepting our statement.
DISCLOSURE STATEMENT
The Tragedy Assistance Program for Survivors (TAPS) has not
received any Federal grant or contract, relevant to the subject
matter of this statement, during the current or previous two
fiscal years.
MS. SULIN SCHAFER
Adjudicating VA's Most Complex Disability Claims: Ensuring
Quality, Accuracy and Consistency on Complicated Issues
My name is Sulin Schafer. My husband, Errick Schafer is a
veteran of the United States Air Force. He served for about 10
years as a fire fighter and had been on multiple deployments.
We have been married for almost twelve years, and have two
young sons. Errick is also young (in his thirties). He was a
top performing military service member, and also participated
in any sport with a ball. He coached my oldest son's sport
teams; bass fished, went to the gym, and ate healthy everyday.
He was full of energy and had a very contagious laugh. He did
everything right to maintain his health.
These days, my husband spends most of his days either
sitting on our living room couch or laying in bed. He depends
on me to get him in and out of bed, get dressed, eat, bathe,
and use the bathroom. My once energetic husband who was full of
laughter and life is now confined to a body that he cannot
control. If that wasn't enough, he no longer has that
contagious laugh and can't hold our newborn son. What's the
cause of all this misery? In November 2012, Errick was
diagnosed with Amyotrophic Lateral Sclerosis (ALS/Lou Gehrig
Disease). The doctor said it was military service connected.
Apparently, there are military service members who have been
deployed to the Middle East, like my husband, and have been
diagnosed with this death sentence.
The doctor suggested we go through the Veteran's
Administration to file a claim for the disability. When Errick
first filed the claim, in November 2012, he was still able to
walk. The VA granted Errick a decision of 100% for ALS. By this
November, I must transport Errick in a manual wheelchair to get
around the house. He cannot use his hands or legs. He cannot
speak clearly, so he is silent for the majority of the time he
is awake. We rarely leave the house because of the difficulty
it takes to get in and out of the vehicle. For a couple of
months, because I was pregnant, my husband had friends from the
fire department coming over to help. In October, I gave birth
to our son, and now have to go back to work in the beginning of
December.
Errick had applied for the SMC for Aide and Attendance, and
was granted the upgrade. When we discussed the upgrade with a
friend, he advised us that the amount did not sound right for
the condition my husband is in. He suggested we speak with his
father in law who had retired from the VA as a ``rater''. Our
friend's father in law looked over the decision letter and
confirmed that my husband was entitled to a higher rating
because he has no use of his upper or lower extremities. He
assisted us in filing a Notice of Disagreement and told me to
submit it to the VA Representative near Eglin Air Force Base.
Early November, I went to the VA near Eglin AFB to attempt
to submit the NOD to the representative. She told me she would
look over it for me. After a short overview of the NOD, she
told me that it was wrong, and that my husband has the highest
rating for SMC. Being that I am not an expert on filing claims
with the VA, I believed her to be correct. She said she would
fix the NOD and call me within a couple days when she was done
with it. I spoke to our friend's father in law, and he said he
would escort me to the VA office the next time I went. Well, a
couple days passed, and then a week, but I did not hear from
the representative. I decided to just go in, and I brought our
friend's father in law.
He explained to her the difference between pension and
compensation, and that my husband, based on his current
condition, is entitled to a much higher rating than what he is
receiving. It appeared that she did not know what our friend
was explaining, even after he showed her in text a list of
ratings directly from the VA website. Needless to say, we left
there with nothing accomplished and the disappointment of still
being told by a VA representative that my husband was still not
entitled to anything else.
It saddened me to think of the many other veterans who have
turned to her for guidance and help in filing their claims, and
possibly were turned away from what they are entitled to. This
encounter has delayed the process of filing my husband's NOD.
Right now we really need it to hire someone to care for my
husband for the hours that I am at work. With a diagnosis like
ALS, when time is not on our side, this is an issue that needed
to be handled more delicately and expeditiously. I have sent
the NOD with the original disagreement. I have lost confidence
in the knowledge that the VA representatives should have.
VETERANS AND MILITARY FAMILIES FOR PROGRESS
December 2, 2013
Congressman Jon Runyan
Chairman, Disabilities Assistance and Memorial Affairs Sub-
Committee
334 Cannon House Office Building
Washington, DC. 20003
RE: Adjudicating VA's Most Complex Disability Claims:
Ensuring Quality, Accuracy and Consistency on Complicated
Issues
Mr. Chairman,
Veterans and Military Families for Progress (VMFP) wants to
thank you for holding this hearing on such a timely issue with
regard to the Department of Veterans Affairs (VA) process of
adjudication of veterans claims for disability, education and
other such purposes for the benefits they have rightfully
earned.
As you are well aware, the implementation of the Veterans
Benefits and Management System (VBMS) has recently taken place
within the VA system of claims centers and Regional Offices
(RO's). This system has yet to be properly evaluated by the
legal community or by Veteran Service Organizations (VSO)
responsible for representing veterans in their claims.
It is our belief the VA's attempt at this implementation is
not in the best interest of the veteran. This is an electronic
set of systems with many hidden features. It is not open to
general interpretation or scrutiny. This adds a layer of
complexity and confusion with little known results, oversight
or regulatory conformance.
In reviewing the overall process, the legal obstacles, in
and of themselves, are a burden to most veterans and the lack
of assistance from the VA initially is daunting. With this new
level of unknown electronic operations, guaranteed only by VA,
to process an initial claim is not sufficient to warrantee any
level of fulfillment that claims are being processed accurately
or consistently. In fact, due to recent reports on claims
processing, the opposite is more likely true.
Benefits claim appeals to the Court of Appeals for Veterans
Claims (CAVC) have increased at a rate of nearly 1,000 claims
per week. The current claims in the CAVC are at their highest
point ever.
In reviewing what is supposed to be the process for a
veteran or their dependant to apply for a claim, the initial
application should consist of the request(s) for a specific
benefit (disability, education, medical needs, etc.)
accompanied with the veteran's Department of Defense form DD-
214, and any supporting documentation. The increased level in
obstacles to obtaining the contractually obligated benefits has
become steeped in laws and unnecessary bureaucracy to the
detriment of veterans and their families.
In reviewing the level of consistency in the decisions from
VA on claims from veterans, the comparable evidence is truly a
mystery. Claims approvals and denials vary from state to state,
region to region and office to office. In many case a veteran
with a valid claim in a specific office will have his or her
claim denied while a veteran with the exact same claim with the
exact same evidence will submit the claim to the same office
and have their claim approved.
There is also no supporting evidence, since the
implementation of the VBMS system, the claims process or
accuracy has either changed or improved. Claims in this system
can be determined to be accurate and acceptable to VA, only to
have the claim denied by either a Regional Office (RO) or a
Director of the RO. This can happen in any office anywhere
within all of the offices of the VA making these
determinations. Since the VBMS system can be interfered with or
altered by an individual, the use of this technology is
ineffective by most measurable standards of fairness or
justice.
In conclusion, the VA is not making any visible or
measurable strides to create a ``less complicated'' system or
improving their methods to help veterans. There is no
measurable evidence the recent changes in VA have done anything
more than add layers to the existing many layers of
bureaucratic schemes designed to insure injustice to veterans
seeking the benefits assigned to them in their agreement when
they entered military service. The assertion by the VA for the
added by a technology, originally reported to ``make things
easier'' for the veterans and government, has no basis in fact.
The issue of complexity of claims resolution is increased to a
new level wherein there is no possible method of discovering
the processes used to reach a decision on how VA arrived at
their assessment of a claim or what was the application of law
used in making their determination for a claim.
VMFP respectfully requests your committee examine the
disability claims process and the quality of the VA decision
more closely in the future. Since there is no evidence to
substantiate that claims quality, process, accuracy or
complexity has improved in recent months or years, the
question(s) you have asked in this hearing are of great
importance to our veterans and their families everywhere.
Respectfully,
Ronald D. Scott
Ronald D. Scott
President, Veterans and Military Families for Progress
CC: Committee List