<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:22359.wais]
Oversight HEARING on the Board of Veterans’ Appeals and Appeals
Management Center
Thursday, May 5, 2005
U.S. House of Representatives,
Subcommittee on Disability Assistance and
Memorial Affairs,
Committee on Veterans’ Affairs,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:30 a.m., in Room 334,
Cannon House Office Building, Hon. Jeff Miller [Chairman of the
Subcommittee] presiding.
Present: Representatives Miller, Berkley, Udall, Moran, and Evans.
Opening statement of Chairman Miller
Mr. Miller. Good morning, everybody.We will call the hearing to order.
The Ranking Member is on her way, as is Mr. Evans. But in view of the
fact that we are at 10:30, a little bit past, I would like to go ahead
and start the hearing to receive testimony on the policy and
operational issues facing the Board of Veterans’ Appeals and the
Appeals Management Center. There are some serious backlog issues, I
think as everybody recognizes, at the Board and at the AMC. And I
look forward to better understanding what the Department is doing and
intends to do to make the appeals process more efficient for veterans
and other beneficiaries. When a claimant disagrees with a decision by
a VA regional office or medical center,he or she has the right to
appeal that decision. The number of appealscontinues to increase,
and unfortunately some claimants wait several years before a final
decision is made on a claim. One purpose of our hearing this morning
is to determine areas to shorten or shave off, if you will, time on
those delays.Among the questions I hope that we will address today:
Is the system itself too cumbersome procedurally? Is additional staff
going to solve the problem? As many of you are aware, this committee
recommended in its fiscal year 2006 budget views and estimates an
additional $6 million, for another 50 FTEs for the Board. Is the
backlog a symptom of the way claims are being filed or claims filing
behavior, and therefore resistant to any improvement efforts?
I am also interested in knowing how BVA and the AMC set performance
goals and objectives, and how those goals may be met I welcome all of
our witnesses who are here today. I look forward to your comments and
suggestions for improving the accuracy and disposition times of appeals.
And I would like to recognize our Ranking Member, Ms. Berkley, for an
opening statement.Opening Statement of Hon. Shelley Berkley.
Ms. Berkley. Thank you very much. I do want to thank the chairman,
Chairman Miller, for holding this hearing to review the operations of
the Board of Veterans’ Appeals and the Appeals Management Center
My Las Vegas office -- that’s my congressional district--is assisting
we have many, many requests for help in this area. I have the fastest
growing veterans population, and there are a lot of outstanding claims
out there We are currently assisting a Gulf War veteran who has
numerous medical conditions and has been waiting for a decision on his
appeal since 1999. This is six years that this veteran has had to
wait to hear a yes or a no. I think veterans deserve to have their
claims decided in a fair and consistent and timely manner.
Every claim that could be granted, in my opinion, should be granted
Denial of a claim should occur only after the facts have been fully
developed and when the law doesn’t support an award of benefits.
I am also very concerned with the wide variation in decisions made
by regional offices across the country that I understand takes place.
Data from the regional offices and the board suggest that the decisions
made are highly accurate. However, this is inconsistent with my
experience in my office and inconsistent with the low percentage of
appeals which are upheld by the board and the court. Nevada has the
third-highest reversal rate in the country, and that is a very big
concern for me.
I hope today’s witnesses will give us a better understanding of the
rationale for the wide discrepancies. Too many veterans contact
my office with concerns that reveal errors in their claims for benefits,
and Committee staff during site visits to regional offices have found
missed opportunities for the VA to award benefits. I am also concerned
about the number of remands which have been languishing in the system
for years, and in some cases, although rare, decades. What actions
can the VA take to identify cases which have been pending for an
extraordinary period of time to thoroughly review and finally resolve
them?
There must be X number of cases that we just need to get off the table.
Would it be possible for the VA to conduct a study of the hundred
oldest claims pending remanded claims, and to provide the Committee
with a summary of the problems which are identified as contributing
to the delay?
It seems patently unfair and almost unconscionable that we are putting
our veterans in this position. And if they don’t deserve to have their
claims taken care of, then let’s get them off the table. If they do,
let’s grant them and get these veterans the help and the care that they
need.
I hope that you are going to be able to answer my questions. I am sure
you will. And I want to thank you, again, for being here. We
appreciate your service. And I am most anxious to hear your testimony
.
Mr. Miller. Mr. Evans.
Mr. Evans. I have no remarks, Mr. Chairman.
Mr. Miller. Mr. Udall?
Opening Statement of Hon. Tom Udall
Mr. Udall. Thank you, Mr. Chairman. And thank you for holding this
important hearing today on oversight of the Board of Veterans’ Appeals
and the Appeals Management Center. As all of my colleagues do, I
have numerous constituents with complaints pending at the Board of
Veterans’ Appeals. The current average time it takes to have an appeal
to claim adjudicated by the board is 2.7 years. I am sure the
panelists here today will agree that this is totally unacceptable
.
I appreciate the efforts the department has made in the past few years
to streamline appeals decisions and remands. But clearly, more needs
to be done. In looking ahead at Mr. Garvin’s written testimony, I
see a list of goals to improve the accuracy and timeliness of
disability, pension, education, and other claims. I hope you will
discuss in detail when you will achieve these goals.
This is extremely important to my veteran constituents and their
families, who expect me not only to help them navigate through the red
tape, but to cut it down when sensible. And I look forward to the
testimony.
Thank you, Mr. Chairman. I yield back.
Mr. Miller. Thank you, Mr. Udall.
I would like to remind everybody that this hearing is being broadcast
live via the Internet worldwide. And also, to the Members, you can go
back and look in an archive section of our Committee website and
actually access a recording of our prior Committee hearings as well
.
So thank you to our first Committee witnesses at the table this morning.
Members, I would like to introduce Mr. Ron Garvin, who is the Acting
Chairman of the Board of Veterans’ Appeals. He is accompanied today by
Mr. Steven Keller, Senior Deputy Vice Chairman of the Board.
Mr. Garvin was named Acting Director of the Board in October of 2004,
and was appointed by President Bush. Previously, he served as the
Board’s Vice Chairman. Following graduation from Dickinson School of
Law in 1965, Mr. Garvin joined the Navy, and throughout his 26-year
military career served as a prosecutor, a defense lawyer, trial and
appellate judge. The other witness on this panel is
Mr. Michael Walcoff, Associate Deputy Under Secretary for Field
Operations at the Veterans Benefits Administration. Mr. Walcoff is
accompanied by Ms. Renée Szybala, Director of VA’s Compensation and
Pension Service, and Mr. Keith Wilson, Director of the Appeals
Management Center.
Mr. Walcoff began his career at VA in 1974 as a veterans claims examiner
at the Philadelphia Regional Office and Insurance Center. He received
a B.A. from American University and a J.D. from Temple University
School of Law. He is currently responsible for the 57 regional offices
under the Veterans Benefit Administration, which has a workforce of 12,000.
We will hold our questions, each of us, until each of you has had an
opportunity to testify.
Mr. Garvin, please begin.
STATEMENTS OF RON GARVIN, ACTING CHAIRMAN,
BOARD OF VETERANS’ APPEALS, ACCOMPANIED BY
STEVEN KELLER, SENIOR DEPUTY VICE CHAIRMAN,
BOARD OF VETERANS’ APPEALS; AND MICHAEL
WALCOFF, ASSOCIATE DEPUTY UNDER SECRETARY
FOR FIELD OPERATIONS, VETERANS BENEFIT ADMIN-
ISTRATION, ACCOMPANIED BY RENÉE SZYBALA, DI-
RECTOR, COMPENSATION AND PENSION SERVICE,
VETERANS BENEFIT ADMINISTRATION, AND KEITH
WILSON, DIRECTOR, APPEALS MANAGEMENT CENTER
STATEMENT OF RON GARVIN
Mr. Garvin. Good morning, Mr. Chairman.It is a pleasure to discuss the
operations of the Board of Veterans’ Appeals with you, the members of
the Subcommittee, and your staff. The Board’s testimony before the
Subcommittee on Benefits given in February of 1994 and June 1998
provide important background information.In fiscal year 1994, the Board
issued about 22,000 decisions. The pending caseload stood at 47,000,
and was on its way to 60,000. Our measure of timeliness then used,the
average response time, was 781 days.
By fiscal year 1998, our timeliness had markedly improved, and our
pending caseload was down to less than 30,000 cases. We issued 38,886
decisions, and we held 4,876 hearings. Appeals resolution time, the
measure of time from the notice of disagreement until final decision
on appeal, was 687 days.
I am proud to report that since 1998, we have consistently improved.
In fiscal year 2004, the Board issued 38,371 decisions, almost as many
as were issued in 1998, and we conducted 7,259 hearings, which is a
substantial increase from 1998.
The appeals resolution time increased to 529 days. Our cycle time, the
time that it actually takes the Board to issue a decision, excluding
the time the case is with the service organization representative, was
98 days. Cases pending at the end of 2004 stood at 21,430.
Significantly, we accomplished these results with 440 FTE. That is 43
less than we had in 1998. These improvements over the past few years
occurred in spite of several significant events, including the impact
of the Veterans Claims Assistance Act of 2000 and the initiation and
then the termination of the Board’s evidence development due to a
decision in the United States Court of Appeals for the Federal Circuit
entitled Disabled American Veterans v. Principi.
We have received a lot of help in our success, including from the
Congress, who has provided unqualified support for the appellate rights
of veterans and their families; the veterans service organizations, who
represent about 85 percent of the applicants; VA leadership, that
supports improvements in the appeals process to ensure that veterans
receive timely and quality decisions; and the staff of the Board,
including the veterans law judges, counsel, and administrative support
staff. Through their efforts, productivity has increased over
historical levels by 20 percent for staff counsel and 25 percent for
veterans law judges. The number of hearings held has also increased,
with videoconference hearings nearly doubling since 1998. Finally, the
average number of decisions per employee has increased from nearly 50
in 1994 to 80.5 in 1998 and 87.3 in 2004.
Two of the most significant and persistent challenges we face are
eliminating avoidable remands, and increasing productivity to contain
and reduce the appellate backlog. In regard to remands, we know that
veterans want a timely and correct decision on claims for benefits.
For the Board to do that, the record must contain all the evidence
necessary to decide the claim and show that all necessary due process
has been provided. If the record does not meet those requirements and
the benefits sought cannot be granted, a remand for further
development is necessary.
Remands lengthen the appeals resolution time. One remand adds about a
year to the process. Remands also divert resources from processing
other claims and the appeals.
We are working with Van Breda, Office of General Counsel, and VHA to
identify and track root causes of remands and provide training, and
ultimately to eliminate avoidable remands. The results are already
encouraging, with the remand rate for the first part fiscal 2005
dropping to 42.6 percent, as compared to 56.8 percent in 2004. For
February and March of this year, the remand rate was even lower, 38.4
percent, and it is trending downward.
If nothing had been done, our backlog was projected to grow to
unacceptable levels. The Board’s backlog disposition time, the
projected time it would take the Board, working at its current rate,
to eliminate the backlog, would have increased from 170 days in 2004
to 391 days in 2006, and nearly 600 days by 2008.
Through incentives and sound management, we have beat our past
projections, and we intend to do so this year. And we are going to do
that by:
Eliminating avoidable remands by strengthening our intra-agency
partnerships, that is, our joint training efforts with VBA, OGC, and
VHA; by writing shorter, more concise decisions that are correct; by
utilizing employee incentives, mentoring and training programs for all
of our employees; by making use of overtime within existing resources;
and by increasing our use of paralegals for non-decisional support
activities.
We believe these measures will work to reduce the backlog and shorten
the time it takes for a veteran to receive a well-reasoned Board
decision. Already we have reduced the time it takes for an appeal to
be finally resolved from 686 days in fiscal 1998 to 529 days in fiscal
2004. Our decision quality has improved from 88.8 percent in 1998 to
93 percent in 2004, and our cycle time is a little over three months.
In conclusion, we intend to continue working to develop new and
creative solutions to the challenges we face in order to fulfill our
statutory mission, to hold hearings, and provide timely, high quality
decisions to our nation’s veterans and their families.
I would be pleased to answer any questions for you or your colleagues,
sir.
[The statement of Ron Garvin appears on p. 29]
Mr. Miller. Thank you very much. We will continue on with Mr. Walcoff.
STATEMENT OF MICHAEL WALCOFF
Mr. Walcoff. Chairman Miller, Members of the Subcommittee, thank you
for providing me the opportunity to appear before you today to discuss
the Department of Veterans Affairs’ Appeals Management Center operations.
My statement today is divided into two parts. I will begin, as you
have requested, by discussing VBA’s AMC operation. Then I will briefly
discuss the joint BVA/VBA remand reduction project.
The Appeals Management Center was created in July 2003 to manage
remands by the Board of Veterans’ Appeals. VBA determined that the
best way to manage remand processing was to consolidate the
responsibility to a single processing center where resources and
expertise could be concentrated.
The AMC has complete authority to develop remands, reach decisions
based on additional evidence gathered, and authorize the payment of
benefits. If the AMC is unable to grant an appeal in full, the appeal
is recertified to BVA for continuation of the appellate process.
The AMC began receiving work from BVA in July of 2003. The initial
work coming to the AMC consisted of two types of cases. The first
category of cases consisted of remands generated by BVA after
July 2003. The second category was comprised of those cases that were
pending in BVA’s development unit at the time that the U.S. Court of
Appeals for the Federal Circuit made its decision in Disabled American
Veterans v. Principi.
Since BVA no longer had legal authority to initially consider any
evidence it developed, the cases pending development actions were
converted to remands by BVA between July 2003 and January 2004, and
transferred to the AMC jurisdiction. There were 9,000 cases in this
category.
VBA projected the volume of remand workload to be 13,000 remands per
year. Based on this projection, the AMC was staffed with 87 employees.
Due to a higher than expected remand receipt rate, the influx of 9,000
additional remands in the initial operating year, a strategy was
developed to increase resources on a temporary basis to assist the AMC
with claims decisions.
An additional 46 employees were temporarily assigned to accomplish AMC
work, beginning October 2004. These employees are located at VBA’s
resource centers in St. Petersburg, Huntington, and Cleveland.
Since October 2004, the AMC inventory of pending remands has been
reduced from 24,000 to 21,000. The goal is to reduce the pending
inventory to 18,000 by the end of fiscal year 2005, and 12,000 by the
end of fiscal year 2006. Once these goals are met, the additional
resources assigned to the AMC will be redirected to compensation
claims at VBA’s regional offices.
The AMC has enabled VBA to significantly improve the time it takes to
complete a remand. During fiscal year 2003, regional offices took an
average of 700 days to complete a remand. Currently, it takes the AMC
an average of 400 days to complete a remand. A strategic goal of 230
days, on average, has been established. This goal represents the
minimum time needed to complete a remand, given the requirements of the
Veterans Claims Assistance Act of 2000 and other legal requirements.
VBA does not require additional resources to reduce the number of
remands pending. The high number and average age of pending remands
are more closely related to procedures and due process requirements
than to a lack of available resources.
Remands are unique in that they often require sequential development
steps with requisite waiting periods between each step. The appeals
resolution process is necessarily prolonged to ensure that all
necessary evidence is obtained and considered. Now I want to talk
very briefly about the remand reduction project. In July 2004, the
Deputy Secretary requested VBA and the Board of Veterans’ Appeals to
accomplish three tasks: one, to agree upon a reliable process for
capturing information prospectively on reasons for remands; two, to
conduct a retrospective analysis on a representative sample of remands
to validate the agreed-upon tool; and third, to develop a plan for
remedying the problem of avoidable remands. On November 8, 2004, VBA
and BVA submitted a report to the deputy secretary containing its
planned remedial measures. VBA agreed to change claims procedures to
more thoroughly document the record when attempts to secure federal
records, such as Social Security records, failed, or attempts to
identify PTSD stressors failed.
VBA also agreed to conduct additional field training on key areas such
as VCA requirements and compliance, and obtaining Social Security
records and disability decisions, medical examination and opinion
issues, and certifying appeals to BVA.
The VBA/BVA team developed a new protocol to record reasons for remands
. The protocol in use since November 2004 distinguishes between
remands due to VBA error, remands based on BVA’s authority to develop
evidence in the absence of a VBA error, and unavoidable remands such
as those resulting from changes in law. These joint efforts are proving
successful.The remand rate in fiscal year 2005 is 43 percent as of the
end of March. This compares with the fiscal year 2004 remand rate of
56.8 percent. And for the month of March of 2005, the remand rate was
37 percent. Our goal is to reduce the remand rate to 30 percent.
In summary, VBA has increased its focus on the appellate workload over
the past several years. Through our actions and the actions taken in
collaboration with BVA, we have implemented measures to reduce the
number of remands and improve the timeliness of appeals processing.
We believe we are moving in the right direction, and continuing
efforts will allow us to significantly improve the appeals process for
veterans.
Mr. Chairman, this concludes my statement. I will be happy to respond
to any questions that you or other members of the subcommittee have.
[The statement of Michael Walcoff appears on p. 33]
Mr. Miller. Thank you very much, Mr. Walcoff.
If I might ask a question or two, and then the other members will ask
some questions. First, Mr. Garvin, I think everybody has a copy of the
Chairman’s Report. Is this -- yes, this is it. In the report, you
highlighted a 180 percent increase in new appeals between fiscal years
2001 and 2004. And my question is: To what do you attribute that
drastic increase? Mr. Garvin. One of the increases was a period of
time after the VCAA when the appeals sent to the Board from the field
were interrupted as we worked out the Department’s processes on how
to handle those VCAA appeals there in the year 2002.
Mr. Keller. 2001. Mr. Garvin. 2001 and 2002. The pipeline essentially
was dried up. So for that period of time, there was a lull in the
number of appeals coming up. But since we have gotten back to normal
processing, we are at the more predictable and higher rate.
Mr. Miller. You said there was a lull, and you said there was a
cessation because you were trying to figure out how to work through
the transition. But I am concerned about the 180 percent increase.
A lull to me says there is a decrease, but I don’t guess I am
following your response.
Mr. Keller. Well, there was a period of --
Mr. Garvin. Mr. Keller will address that.
Mr. Keller. I am sorry. Yes. I was there at the time before
Mr. Garvin
became the Vice Chairman.There was a period of time following the
enactment of the Veterans Claims Assistance Act during which the
regional offices had the option of reworking 100,000 appeals, of
claims that had been previously denied because they were not well
grounded. And they did so. That diverted resources from doing new
appeals to rework those that had been previously denied and which
would not have been denied under the VCAA. As a result, that consumed
their energies. The appeals new appeals were not sent to the Board
in the quantities they had been before and have been since.
So there was that hiatus in the receipt of appeals by the Board during
that year, year and a half period. So our receipts dropped and our
productivity accordingly dropped during that period of time. Since
that time, those appeals have been worked and regional office
productivity on new appeals has increased even beyond the levels they
were at before the VCAA. So that is sort of a blip in the
productivity. Mr. Miller. Well, let’s try this one. What are the most
common errors or reasons for a 56 percent remand rate on disability
compensation decisions? Why are we getting -- it appears to me 56
percent of those that are being sent up are remanded back. What are
the reasons for that?
Mr. Garvin. Well, the primary reason or the one most frequently cited
in the remands was compliance with the VCAA. Even though we reworked
that large group of cases that were in the field, it took us -- it
has taken us much too long to figure out how to do it correctly.So
there is an awful lot of those remands that were sent back for the
procedural compliance requirement.
After that, the second most frequent reason has to do with physical
examinations, whether they be complete enough, whether there is a
nexus opinion, or whether they are just stale by the time we receive
them at the Board for final decision.
Mr. Miller. Can you walk us through just a typical appeal?
I mean, I know there is no such thing as a typical appeal. But kind
of explain to the Committee Members what happens and, you know, what
information is sent up, requested. You know, I think all of us have
constituents call our office and they are just totally exasperated
with the system in one way or another. And, you know, the length of
time and -- can you just kind of give us an idea of how it works?
Mr. Garvin. Yes, sir. When the appeal is received at the Board, it is
initially docketed -- has been docketed in the field. When we receive
it, it goes into the general population of cases pending before the Board.
Now, by statute, we have to decide the cases at the Board in accordance
with docket order number. So therefore, the oldest cases coming in
receive the initial attention of the judges. Mr. Miller. Can I ask you
a question? Is there a statutory requirement for time that they must
be adjudicated?
Mr. Garvin. Other than the oldest docket number first, no. So we work
from the oldest ones forward. And it depends on the -- as you may or
may not know, we are divided into four decision teams. And we try to
stay very close to docket order number, but we also have a slight
balance by the geographic jurisdiction of each of the four teams
.
Once that case is taken out of the general population or storage area
and begun to work, the case is then sent to the service representative,
if there is one, so that they can examine the case, case file, and
present any additional evidence or argument that they have on the
case. After they have completed their examination of the file, it is
returned and distributed by our central staff to the decision teams,
where the judges will have an attorney, one of the staff attorneys,
look at the file, draft a decision, and present the draft decision to
the judge for either signature or returned for additional work
.
At that point, if the judge signs off on it as being an acceptable
product, then we process it for distribution to the applicant.
Mr. Miller. Is it true that you are working on docket numbers in 2003
now?
Mr. Garvin. I believe that is correct, yes.
Mr. Keller. Late 2003 and early 2004, in that range.
Mr. Miller. Okay. Ms. Berkley?
Ms. Berkley. Thank you, Mr. Chairman. I know that you have got a lot
on your plate, and I know that it is not an easy task that we have
tasked you with. I think it is important to keep in mind that even
though we pressure you for getting these cases expedited and getting
them done in a timely manner, there is also an issue of getting them
done right the first time. And I am very concerned about the lack of
appropriate number of staff in order to do your job right. If I am not
mistaken, it seems that the information I got is the time taken by the
Board is going to increase by 170 days at the end of 2004, and I think
your testimony said to 391 days by the end of 2006, and then up to 600
and some odd days, I think, perhaps two years later or a year later.
Do you have -- in your opinion, do you have the adequate personnel to
do the job that you have been tasked with? Mr. Garvin. We think we are
going to be able to reduce those figures substantially.Those figures,
as we put in our annual report, indicate that these are the
progressions if we do nothing unusual to attack the backlog.
One of the things that we are counting on for that purpose is the
avoidable remand project that we are undergoing now.
Ms. Berkley. Yes. That was one of my later questions. But as long
as you brought it up,you mentioned eliminating avoidable remands.
How do you eliminate avoidable remands?
Mr. Garvin. We are making a greater effort to look at, number one, the
VCAA compliance; number two, the adequacy of the most frequently cited
reasons for remand, and that is the medical examinations.
We are taking a much closer look at them. And we are working, quite
frankly, on issues, along with the VBA, so we can identify the
weaknesses in the system. And as we are trying to do better decisions
on rationalization as to whether or not the procedure, VCAA procedure,
is adequate, we are also looking more carefully at the documentation
for the medical examinations, including the supporting documentation,
which we may not have been giving as close a scrutiny in the past as
we should have. And we are concentrating on that as we try to improve
our decisions. Ms. Berkley. So in other words,those of us that have
been working very hard to get more money in the budget for you to get
more staff, we should stop doing that?
[Laughter.]
Mr. Garvin. I would never refuse any help, ma’am. But I am not asking
for it. Ms. Berkley. I see. All right. Let me ask you a question.
And you brought this up also, so it segues into another question that
I had. I think one of the things you said that you were working on to
eliminate the avoidable remands was medical examinations or medical
opinions.
Let me ask you a question. We have a case right now that I guess they
approached the Committee. And it was a veteran, and I am going to
read this because this is what I have, but a veteran whose claim for
service-connection of a seizure disorder and other disabilities
related to head injuries filed his appeal in 2000.
He recently contacted the Committee. The veteran was currently
service-connected at zero percent for several scars, including two
scars potentially related to the head injuries claim. And then after
the claim was remanded to the AMC, a medical evaluation was conducted
which did not provide a basis for service-connection.
However, apparently the head injury scars were not considered as part
of that evaluation, because the remand order did not require it. And
it seems to me if somebody has got scars on the head and they are
saying that they have got head injuries and that is why they are
appealing their claim, that somebody should have picked this up and
directed that the medical examination included looking at the scars
for the head injury.
Is that what you are talking about correcting?
Mr. Garvin. That is part of it. We went through a period in our
remands where we did not specify the precise medical corrections that
we were looking for, the additional medical evidence that we were
looking for. And that is one of the areas which we have worked
together with VBA to improve upon.
We are now asking our judges to become more specific in their remands,
rather than saying, would you look at the head.
Ms. Berkley. Let me ask you a question. I realize this is only six
months old, and I guess in government standards, that is not a lot
of time unless you are waiting on the other end for a decision.
But December 29, 2004, in the Staley decision, the court said, ``Of
significant concern to the court is VA’s admission that there are
currently no written standard operating procedures regarding the date
stamping and mailing of Board decisions.’’
What acti
ons have been taken in the last six months to address the Board’s
concerns?
Mr. Garvin. I am going to have Mr. Keller address that one.
Mr. Keller. We now have written procedures in place regarding the
mailing of our decisions. We are examining that entire process to
make sure we can document for the record when the case was sent and to
whom and at what address it was sent. So we took that decision quite
seriously. We now have procedures in place for our administrative
service. And we should have what we call a Chairman’s Memorandum, which
sets forth our internal operating procedures regarding dispatch of
decisions. We think we have come a long way to address the court’s
concerns Ms. Berkley. Okay.Good. I have a number of questions, but
the Chairman is admonishing me that there are others that need to speak.
Well, in a nice way.It wasn’t a hard admonishment. It was just get on
with it. Let me ask you one more question on the record. And if you
don’t mind, I would like to submit some questions to you.
In my opening statement, I talked about the possibility of finding the
hundred oldest? The claims they have been in the system for an awful
amount of time, decades in some instances.
Is there any possibility of bringing those to light and adjudicating
those first? You said that they were -- you know, they went by order
of date. But how are some of these lasting decades, and what do we do
to resolve them?
Mr. Garvin. Let me first give you some preliminary, and then I am
going to turn it over to Mr. Walcoff. Yes, we do, I think,
cooperatively look for the very old decisions.
When our travel boards visit each of the ROs, that is one of the areas
in which we attempt to provide assistance to the ROs. If they have
those cases which have been in the field for quite a long time, we
will offer and in most instances are able to help look at those cases.
Mr. Walcoff. I don’t see any reason why we couldn’t give you -- do the
research that you are requesting and provide that information for you.
I would be very willing to do that.
[This information is provided on p. 86.]
Ms. Berkley. And I am hesitant to take any more of your time and
resources to do this when you need to be doing your jobs. But perhaps
it would be instructive for all of us and we can just get these cases
dealt with because I am convinced that every veteran in the United
States is moving to Las Vegas, Nevada and I am going to have to deal
with all these cases eventually So the sooner I can get them off the
table,the easier my staff’s job is going to be.
So I thank you very much, and I am going to submit a list of other
questions, if you don’t mind. I would appreciate a response. And
thank you for being here.
Mr. Walcoff. Thank you.
Mr. Miller. I would also like somebody to research why all the
veterans are moving to Las Vegas.
[Laughter.]
Mr. Miller. Mr. Moran -- no, no, no, no, no. I would like to go to
Mr. Moran before we go to Mr. Udall. Mr. Moran.
Mr. Moran. Thank you very much, Mr. Chairman. Thank you and
Ms. Berkley for conducting this hearing. It is a topic that we hear
about regularly from our constituents. Mr. Walcoff, it is my
understanding that it is taking about 400 days for the Appeals
Management Center to complete a remand. You indicated in your
testimony that you have a goal of 230 days. That is an admirable goal,
I guess, although it still seems like 230 days is a long time.
What is the time frame for you to reach that goal? And kind of more
importantly, not just what your goal is, but how do you get there?
What is it that is going to allow you to get from 400 days to 230 days,
and then what are we going to do to get that time frame even shorter?
Mr. Walcoff. I think part of the reason why we are at 400 days right
now has to do with the way the work initially came in to the AMC. In
a short period of time, not only did we get work coming in as it
would normally come in from BVA, but we also got that large block of
cases that had been in the development unit. 9,000 cases basically
came into the AMC over a very short period of time. And we had to
develop a way to do the initial development on all those cases, and
then be able to deal with them as the evidence started coming back
And that is the reason why we have added resources and that sort of
thing. But to handle that big block of cases that are all at about
the same stage is taking us longer than it would if we just had the
normal flow. So one of the things that we are anticipating is as we
get through that big clump of cases and get them all resolved, that
the system is set that we have enough personnel that we would be able
to resolve these remands in as expeditious a manner as we can that is
allowed by the law. I would ask Mr. Wilson to explain to you about
the 230 days because that was my reaction also when he first talked
to me about what standard we want to set for that. So Keith, why
don’t you explain why we settled on 230 days.
Mr. Wilson. Sure. Good afternoon. 230 days is a goal that was
established largely based on the requirements of the VCAA, the
Veterans Claims Assistance Act. When we go out and ask for evidence
from a veteran, from a doctor, from the Federal Government, we are
required to wait a certain period of time, and that is 60 days, at
each of those stages. So we have a 60-day window that we allow the
respondent to provide us the information in.
In addition to that, most of the remands that we see are sequential in
nature. In other words, we are required to take the first step on the
remand. Once that step is completed, we move to the next step.
So we can oftentimes see two or three situations where we have a
60-day window where we are waiting for evidence.
In addition to that, at the end of the remand process, if we are not
able to grant the benefit in full, then we will issue a supplemental
statement of the case to the appellant. And they have a 60-day window
to review that information and provide any additional comments that
they want to provide prior to us recertifying the case back to BVA.
So we have several windows that we are required to wait for certain
periods. In between those windows, we establish ten-day turnarounds to
move it from one stage to the next once we are able to complete the
previous stage.
Mr. Moran. Statutorily, what you are telling me is that statutorily,
the veteran has a 60-day period of time in which to respond kind of
each step of the way?
Mr. Wilson. That is correct.
Mr. Moran. And is there any reward for a veteran who takes less than
the 60 days? If the veteran responds to you in ten days or a month,
does that speed up the process, or that 60-day period is still open?
Mr. Wilson. It does speed up the process. The faster we can get the
claim to a decision-maker, the better off the veteran is. So
certainly, when we send out our initial letter to the veteran telling
them who we are, what we are doing, we encourage them to get the
information to us as quickly as possible.
Mr. Moran. In other words, the 60 days is not an excuse used by the
VA to delay putting the file in the process, having the adjudication
occur? Mr. Wilson. No.
Mr. Moran. As long as you have the information, that file is going to
proceed?
Mr. Wilson. That is correct.
Mr. Moran. Okay. Is this a long-time problem? My experience in
Congress now is about ten years. This has been an issue since I came
to Congress and have been a member of the Veterans Affairs Committee.
Is this a historic problem at the VA, or is the problem getting
exacerbated over time, the problem being the amount of time?
Mr. Walcoff. What I would say to you is that certainly the VCAA law --
we know how long that has been around; it has been around since 2000,
2001. So I am not going to say to you that before that, everything
was -- we were doing everything, you know, in a timely manner.
But I do believe it has added on to the time. It was not necessarily
what we wanted to begin with, but it certainly has made it worse, is
what I would answer to that. Mr. Moran. The chairman is probably more
lenient with the ranking member than he will be with me, and that red
light came on. But let me ask this question: Is there any statutory
changes -- I have not read your testimony, and maybe you have made some
suggestions -- but is there anything that you see as an impediment,
that Congress needs to change the law that keeps you from doing your
job in a more timely fashion?
Mr. Walcoff. I am going to ask Ms. Szybala to answer that. She is
the -- as the head of C&P service, she is responsible for policy in
this area. And there certainly have been discussions about this.
Mr. Moran. Thank you, Mr. Secretary.
Ms. Szybala. We have reviewed -- VA has reviewed and Congress has
reviewed the appeals process several times. I know of three offhand.
The secretary has reviewed it more recently, as has the under
secretary.
Basically, all the reviews come out with some consistent
recommendations. One is to close the record. This is a particularly
difficult one, very hard to get your hands around to do it right, to
do it in a way that is fair to the veteran. So that is not going to
happen any time soon, but it is certainly something we are considering.
All the recommendations that have come to us from these committees and
commissions and task forces are still on the table. One is -- a lot of
them are regulatory. The 60 days,the 60 days for the VCAA response, is
not statutory. It is not statutory. It is not in the VCAA. But it is
VA policy, and it is in our manual, and it is in our VCAA letters. We
give them 60 days. We need to study that. We need to study whether
that is the right amount of time, whether that is the amount of time
that veterans need.
Under the VCAA, they have an hour -- I am sorry -- they have a year in
any case. So this is just the time we have to wait before we can move
further. They will still have the year, and they can always give us
more evidence within that time. Things like that are under
consideration. We are looking at changes in the DRO process. The
DRO is the decision review officer, which is a part of the VA side of
the appeals process. We are looking at whether changes need to be
made there which can help speed it along.
So I don’t really have suggestions for statutory changes for the
appeals process right now. We will be back to you when we think of any.
Closing the record would take some statutory changes.
Mr. Moran. Thank you, Mr. Chairman.
Mr. Miller. Thank you very much. Let the record show Mr. Moran went
two minutes and 16 seconds over for next.
Mr. Udall.
Mr. Udall. Thank you, Mr. Chairman. I will try to stay within my time
here, since you are keeping track here.
Could you talk a little bit about -- I want to go to that last
question. When you talk about closing the record, could you talk a
little bit about what you are talking about and what kind of statutory
changes we might be looking at? I know you are saying you don’t want
to recommend it right now. But could you do that a little bit?
Ms. Szybala. Well, one of the recommendations that makes most sense
to me would be to close the record at the point in time that the case
goes to the Board, when the Form 9 is filed, when the case has been
certified to the Board, or when the Form 8 is filed and the case has
been sent to the Board.
At that point, it is in appellate status, true appellate status, no
longer at the RO. And anything new that the veteran gives the Board
beyond the things that the Board is allowed to look at -- the hearing
that the Board holds or new medical exam -- anything else that the
veteran gives new has to be remanded to the RO.
And this causes a constant cycle. If veterans knew, and their
providers, their VSOs, knew, that they needed to get all their evidence
in at the point in time that they certify their appeal to the Board,
I think we would have less problem there.
The veteran could still give that evidence in to the RO. It would just
be looked at in a different claim, and the claim that they appealed to
the Board would go forward. That is the kind of closing the record that
makes most sense to me.
There are certainly other ways to look at it. Another way is to make the
Board appellate only, so that the Board actually only reviews the
correctness of an RO decision. It doesn’t have difference of opinion
kind of authority. It is not looking at de novo.
That also would mean the Board is not taking new evidence, but it would
be more of a sea change in what we use the Board for, what the Board
is able to do now.
Mr. Walcoff. Renée, let me interrupt for one second. This issue of
evidence that comes in after the case has been certified to the Board
is an interesting one because this is part of the reason why we always
react a little bit when people look at remands and have them as being
comparable to errors.
Very often we will certify a case to the Board and new evidence comes
in, and that is what causes the Board to remand the case. There is
nothing that the RO did that is at fault. It is just that new evidence
has come in, and the system allows that evidence to be considered by
the Board.
And it is the same thing with grants. Just because the BVA grants a
case that we had denied doesn’t necessarily mean that the RO had made
a mistake. It might be that new evidence came in that has changed what
they are looking at. So this is part of the overall process that makes
it so complex.
Mr. Udall. And in your analysis, do you think it is more efficient to
do it the way you are doing it, where you don’t close the record? I
mean, mean -- you know, I am familiar with legal cases. I mean,
clearly you close the record in the appeals and the appellate courts.
You close the record. There isn’t any new evidence. There isn’t this
issue of something surfacing that is new, and then remanding it back
and redoing it.
Have you looked at whether or not this is an efficient way of doing it
like this? Or would it be more efficient to close it, deal with that
case, and then -- and as you say, deal with a future case or something
along that line?
Mr. Walcoff. I mean, you really could always take the new evidence as
a new claim.
Mr. Udall. Right. As a new claim.
Mr. Walcoff. But to answer your question, I am not -- you know, is it
more efficient? It depends upon how you define efficient. You know,
I think that when we decide anything that we would do in this area, we
obviously have to be very sure that we are looking at what is fair to
the veteran, you know, and certainly approach it from that aspect as
well as the ``efficiency’’ aspect.
And I don’t know where that balance is at this point. And that is
something that if we are going to look at, we have got to really look
at it with an idea of making sure that we maintain that fairness.
Mr. Udall. Well, when you say is it fair to the veteran and talk about
efficiency, I mean, what I am talking about is getting them as quick
a resolution as is reasonably possible on their issue.
And so if this new evidence that comes in is directly related and you
can handle it much quicker in a remand than you can starting an
entirely new case, obviously the way you are handling it is totally
acceptable. But if it is delaying it with this bouncing back and
forth, then I think we need to take a look at it in terms of closing
the record.
This closing the record has been in place for a long time, I guess.
Right? And it is probably -- not closing the record. But it has been
there for the benefit of the veteran, I am sure.
Mr. Walcoff. Correct.
Mr. Udall. That is why you all keep the record open, so that they can
submit anything at any point
Mr. Walcoff. That is right.
Mr. Udall. Yes. So it would be a big issue in terms of changing that
and closing it out and opening new cases. Thank you for enlightening
me and the Committee there.
Mr. Miller. Thank you, Mr. Udall. Thank you, members, for your
questions. And again, some members will be submitting written
questions for your response. We thank you for being with us today,
and we’d like to excuse you and ask the other witnesses to come
forward.
We are going to have a vote called in just a few minutes. But I would
like to go ahead and see if we can move forward as expeditiously as
possible.
Thank you very much. If I might introduce Cynthia Bascetta, Director
of Education, Workforce, and Income Security at the Government
Accountability Office. She is accompanied by Ms. Irene Chu, the
Assistant Director of that same department.
Ms. Bascetta joined GAO in 1983, and since 1998 has directed their
reviews of the effectiveness and efficiency of VA’s health care and
disability compensation programs. She has also led GAO’s work on the
Social Security Administration’s disability programs. Her work over
the years has helped lay the foundation for bipartisan legislation to
improve disability compensation programs for both VA and the Social
Security Administration.
You may begin, Ms. Bascetta. Thank you.
STATEMENT OF CYNTHIA BASCETTA, DIRECTOR,
EDUCATION, WORKFORCE, AND INCOME SECURITY,
GOVERNMENT ACCOUNTABILITY OFFICE, ACCOMP-
ANIED BY IRENE CHU, ASSISTANT DIRECTOR, EDUCA-
TION, WORKFORCE, AND INCOME SECURITY
Ms. Bascetta. Thank you, Mr. Chairman.
I appreciate the opportunity to be here today to provide an update of
our 2002 review of the Board’s quality assurance system. In that
review, we found that the Board needed to correct weaknesses in how it
selected decisions for quality review and how it calculated the
accuracy rates of these decisions. Based on our analysis of information
we reviewed in April this year, we determined that the Board has taken
action to significantly strengthen its quality review system I will
focus my remarks today on the three areas in which we recommended
improvements.
First, we found in 2002 that the Board’s sample size was adequate for
estimating its accuracy rate. But we pointed out some Board practices
that might result in misleading accuracy rates.
In particular, we found that the Board was not ensuring that decisions
made near the end of the fiscal year were sampled or that quality
review results were being properly weighted in the formula used to
calculate their accuracy rates.
But in 2002, the Board agreed to correct these practices, and our
updated work shows that in fact the Board did take corrective action
in fiscal year 2002 to ensure that the decisions made near the end of
the year are also sampled.
We also found that the Board had not revised its formula for calculating
accuracy rates in order to properly weight the quality review results
for original decisions made by veterans law judges versus the results
for decisions made on cases that the court had remanded to the Board
for rework.
At the same time, the Board’s reported accuracy rate of 93 percent for
fiscal year 2004 would not have been materially different even if the
Board had corrected this methodological error. Nevertheless,
corrective action needs to be taken to avoid the potential for
reporting a misleading rate in the future, and the Board has agreed to
correct this issue in the very near future.
Secondly, our 2002 review reported that the Board included
nonsubstantive deficiencies in calculating its reported accuracy rates
. These deficiencies would not be expected to result in either a
remand or a reversal by the court.We concluded that the reported
accuracy rates would have been higher if the Board counted only
substantive deficiencies in its accuracy rate calculation. In fact,
VBA had stopped counting nonsubstantive deficiencies after the VA
claims processing task force found in 2001 that mixing serious errors
with less significant deficiencies could obscure what is of real
concern.
Similarly, we recommended that the Board’s accuracy rates take into
account only those deficiencies that would be expected to result in a
reversal or a remand by the court. In fiscal year 2002, the Board
implemented this recommendation.
Third, we brought to the Board’s attention two standards that
government agencies should meet: the internal control standard for
separation of key duties, and the performance audit standard calling
for organizational independence for agency employees who review and
evaluate program performance. The Board had not met these standards
because certain veterans law judges, who were directly involved in
deciding veterans’ appeals, were also involved in reviewing the
accuracy of those decisions. The Board took prompt action to correct
these problems in 2002 while our review was still ongoing.
While our update shows much improvement in the Board’s quality
assurance process, I would like to take this opportunity to say a
few words about another key measure, that is, the consistency of
disability decisions.
Our 2002 report highlighted the fact that adjudicator judgment is
inherent in the disability decision-making process. As a result, we
recommended that VA systematically assess consistency within VA as a
whole, including decisions made by the Board and those made by the
VA’s 57 regional offices.
VA still lacks such a system, but VBA and the Office of the Inspector
General have recently begun reviews to try to explain the wide
variations from state to state in average compensation payments per
veteran.
We continue to believe that in addition to making improvements in
accuracy, VA must have a better understanding of consistency to
provide reasonable assurance that veterans’ cases are decided fairly
and equitably.
I would be happy to answer any questions that you or the other
subcommittee members might have.
[The statement of Cynthia Bascetta appears on p. 39]
Mr. Miller. Thank you very much. I don’t have a question, just a
statement. I just want to say thank you for your agency’s work over
the years. The information that you have been able to provide to the
staff has been extremely valuable to assist them in doing their jobs,
and I just want to personally say thank you for what you have been
doing.
And I would like to defer to the other members who are here.
Ms. Berkley?
Ms. Berkley. Okay. The Chairman tells me we are going to have a vote
called any moment. But perhaps in your testimony you have already
addressed this, but let me make sure that I understand.
Thank you very much for being here and for your report. You have
found that since 2002, VBA has improved the sampling process for
quality and improved the organizational independence of quality
reviewers. But you do remain concerned about the lack of consistency
in adjudication throughout the VA and appellate review.
Do you think that the high number of remands and reversals related --
are the high number of remands and reversals related to the lack of
consistency in decision-making?
Ms. Bascetta. I can address that in two ways. First of all, there are
two sets of remands. There are the remands that the court would send
back to the Board. We have not studied that part of the process.
There are also the remands that the Board sends back to the initial
decision-makers, and in that regard, as you have heard from the
previous panel, it is a very complicated process.
You know, the second review, the Board review, is a de-novo process
which gives veterans the opportunity, a chance to have their case
heard afresh. And I think the most important comment that I would
make on a conceptual level is that there is a significant amount of
adjudicator judgment in many of the cases. And for that reason, we
don’t expect 100 percent consistency.
What we are asking VA and other agencies, particularly the Social
Security Administration, to do -- because they all face this same
problem -- is to have a measure for what is a tolerable level of
variability. Without that, it is hard to know what the remand rates,
or the reversal rates, for that matter, really mean.
Ms. Berkley. Okay. Thank you. One other question, if I could.
GAO’s recommendation to count only deficiencies which would be likely
to result in a reversal or remand from the court, can you explain why
there is such a high remand rate from the court if the quality of
Board decisions is as high as the 93 percent accuracy rate reported?
Ms. Bascetta. Well, again, accuracy -- the accuracy rate at the Board
is computed under a system in which the reviewer does not have the
opportunity to substitute their judgment for the decision that was
made.
Once it goes to the court, though, there is the opportunity to do
exactly that, to interpret evidence differently. And again, it is
hard to know, you know, whether that 58 percent remand rate is
reasonable or not without knowing, you know, more about the actual
bases for those remands.
But a good part of it could be explained by a difference in judgment.
Ms. Berkley. Okay. Thank you very much.
Mr. Miller. Mr. Moran?
Mr. Moran. I have no questions, Mr. Chairman.
Mr. Miller. Thank you very much, Ms. Bascetta and Ms. Chu. Thank you
for being with us.
Ms. Bascetta. Thank you.
Mr. Miller. We would like to go ahead and call the next witnesses
forward, and we will see if we can move this through before we have
to leave for a vote. I will introduce you as you are getting set up.
Mr. Robert Chisholm is the past president of the National Organization
of Veterans Advocates. Since 1991, he has been representing veterans
before the VA and the Court of Appeals for Veterans Claims. He also
has appeared before the United States Court of Appeals for the Federal
Circuit.
In 1998, he was elected to serve as the president of National
Organization of Veterans Advocates, and served in that position until
2004. Mr. Rick Surratt is the Deputy National Legislative Director of
the Disabled American Veterans. He began his career with them as a
national service officer in 1976. In 1998, he was named to his
current position.
Mr. Surratt enlisted in the U.S. Army in 1966 and was wounded during
combat field operations in Vietnam. He was honorably discharged from
the Army in 1969.
Mr. Chisholm, Mr. Surratt, we appreciate you being here with us today.
And Mr. Chisholm, would you please begin your testimony.
STATEMENTS OF ROBERT V. CHISHOLM, PAST PRESI-
DENT, NATIONAL ORGANIZATION OF VETERANS AD-
VOCATES; AND RICK SURRATT, DEPUTY NATIONAL
LEGISLATIVE DIRECTOR, DISABLED AMERICAN
VETERANS
STATEMENT OF ROBERT V. CHISHOLM
Mr. Chisholm. Thank you, Mr. Chairman and members of the subcommittee.
And thank you for the opportunity to present the views of the National
Organization of Veterans Advocates on operations of the Board of
Veterans’ Appeals and the AMC.
As attorneys representing veterans in this system, we don’t really
have much experience with the AMC because any veteran that is
represented by counsel immediately bypasses the AMC and goes straight
back to the regional office. So my comments today will be directed
mainly about the Board of Veterans’ Appeals.
A claimant who files a new claim for benefits that is denied by the VA
usually faces whether from a three- to five-year horizon before he or
she receives a final decision from the Board of Veterans’ Appeals.
If that same claimant then appeals the case to the Court of Appeals
for Veterans Claims, it may take another 12 to 18 months for the court
to render a final decision. And when the court acts in the claimant’s
favor, what that usually means is the case is remanded or sent back
to the Board of Veterans’ Appeals for a new decision.
The remand from the Court of Appeals for Veterans Claims provides the
claimant with the opportunity to submit additional evidence and
arguments in favor of the claim at issue. And it preserves the
claimant’s favorable effective date if there is in fact an award of
benefits.
The problem, however, is that many claimants that I and members of
NOVA represent do not survive, literally survive, this protracted
adjudicatory process. Those claimants that do survive are subjected
to interminable delays before the VA.
I would like to focus my attention first on the issue of remanded
claims from the Court to the Board and from the Board to the regional
office. In 1994, Congress enacted the Veterans Benefits Improvement
Act, which provided that remanded claims should be treated
expeditiously. The intent behind the VBIA and the subsequent
statutory codification is clear. Congress wants those claims handled
quickly.
You heard earlier Mr. Garvin testify about the docketing of BVA
appeals. And this is an area that is of grave concern to me because
when a veteran’s claim comes up the ladder and is assigned, say, a
1999 docket number, and then it goes to court and is then remanded
back, it should retain that 1999 docket number.
And let’s assume, further, that the board then remands the case to
the regional office, and let’s say it is an issue of service
connection for a mental disorder and the veteran then gets an award of
benefits, but it is less than the full amount of what that veteran was
seeking. Let’s say he only gets a 50 percent award and wants a 100
percent award.
Well, when that veteran appeals back to the Board to try and get that
100 percent, typically that veteran is not receiving the 1999 docket
number, in my experience. We have had to file -- by ``we,’’ I mean
myself and other members of NOVA -- have had to file writs of mandamus
to compel the BVA to assign the proper docket number.
Just yesterday I checked on two cases, one of which I filed a writ at
the regional office to compel expeditious treatment went to court and
I was told I would get -- the client would get expeditious treatment.
And then when it went to the Board, it was assigned a 2005 docket
number in a case that should have been assigned a 2000 docket number.
This happens all too frequently, unfortunately. And I would submit
that the claims being remanded from court to the Board, going down to
the RO, and coming back are not receiving the expeditious treatment
they are entitled to and that Congress desired.
Another concern I have is the way that the Board provides statistical
tabulations to Congress. Every year in the BVA chairman’s report, the
total number of decisions made are reported, the number of allowed
claims are reported, and the number of remanded claims are reported,
and the number of denied claims are reported.
One of the problems here is that if a veteran has multiple issues
before him, and one of those claims is allowed but the rest are denied,
in that situation typically the BVA only reports the allowed claim and
not the denied claims. And this becomes a very serious problem.
Finally, I would like to say the quality of decision-making at the
Board is very problematic when viewed through the lens of how many
cases are being remanded by the Court of Appeals for Veterans Claims.
Over 65 to 70 percent of the cases that reach a merit determination at
the Court of Appeals for Veterans Claims are being remanded due to a
lot of the errors that we have already heard testimony about this morning.
My final thought is that veterans should be allowed the choice to
have an attorney represent them earlier in the process if they choose.
Presently, veterans are prohibited from hiring and compensating an
attorney until after the record is closed at the Board of Veterans’
Appeals, and only on appeal to the Court of Appeals for Veterans
Claims.
I would submit that Congress should seriously consider a statutory
amendment to 38 USC 5904 to permit veterans the opportunity or the
choice to hire an attorney at the initial stages of their claim.
Thank you, and I will take any questions that you have.
[The statement of Robert V. Chisholm appears on p. 57]
Mr. Miller. Mr. Surratt, if you would please continue. And we are
going to try and stay through the -- we have 17 to 20 minutes to get
over to vote. So please continue.
STATEMENT OF RICK SURRATT
Mr. Surratt. Thank you, Mr. Chairman.
The best evidence of the importance of a fair and effective appeals
process for veterans is the large number of VA decisions that are
overturned on appeal. In fiscal year 2004, claimants initiated nearly
109,000 new appeals.
Experience has shown that approximately half of these appeals will be
resolved by the VA office that made the decision being appealed
without the necessity for review by VA’s Board of Veterans’ Appeals.
Of the 38,371 cases in which there was a BVA decision last year, 17.1
percent were allowed. Another 56.8 percent involved some processing
omission that rendered the claims decision unsustainable, thereby
requiring remand from the Board to the VA activity responsible for the
original decision. Together, the allowed and remanded cases comprised
73.9 percent of the board’s total decisions in 2004.
Again, based on experience, approximately 25 percent of the remanded
cases, or 14 percent of the total cases reviewed by BVA, will be
allowed on remand. Of the 75 percent of the remanded appeals that
will be returned to the Board, approximately another 10 percent, or 4
percent of the total cases reviewed by BVA, will be allowed.
Based on these percentages, we can project that somewhere in the
neighborhood of 13,500 of the claimants whose cases were reviewed by
the Board last year will eventually receive the benefits they would
have otherwise been deprived of erroneously. That does not include
close to half of the nearly 109,000 applicants whose claims will be
favorably resolved without review by BVA.
Those numbers demonstrate not only the necessity of the appeals
process, but also that VA’s appeals process is fulfilling its purpose,
to ensure veterans receive the benefits they are due.
In any adjudication system, mistakes are inevitable. In an adjudication
system as massive as VA’s, the claims wrongly decided will be relatively
numerous under the best of circumstances.
However, the unusually large percentage of appeal cases in which
errors are found demonstrates serious problems in the initial
decision-making process. In addition, repeated errors at the field
office level result in multiple remands and multiple Board decisions in
far too many cases.
Erroneous or defective decisions result in several adverse consequences.
Erroneous denials deprive large numbers of veterans the benefits they
are rightly due, and delay the delivery of these benefits for protracted
periods.
Because erroneous denials necessitate multiple decisions, they add
substantially to the workload at all levels of adjudication. Greater
workloads require greater resources. If the increased workloads are
not matched by increased resources, quality must yield to quantity,
leading to even higher error rates and a vicious cycle of increasing
inefficiency. Consequent claims backlogs delay the delivery of
benefits for all claimants. Everyone suffers.
And I am going to take just a moment to say that though there is room
for improvement at BVA and the Appeals Management Center, their
problems are secondary to the more critical problems in the initial
decision-making process.
To give you an example, VBA management has tolerated for years problems
such as that at the New York City Regional Office where, on average,
an appeal languishes for nearly five and a half years before the
regional office transfers it to the Board for a decision; or Montgomery,
Alabama, which had a 66 percent remand rate in 2004.
Many of these appellants are elderly, or many of them are very seriously
disabled, and they need the benefits in a more timely fashion than that.
I want to address the issue of closing the record. It seriously
concerns me when VA officials raise suggestions of that nature. First
of all, you heard that the most frequent reason for a remand is an
inadequate exam. And I think one of the VA officials said that the
case has to go back to the RO if the veteran submits some new evidence.
Well, that is not entirely true. The veteran can waive that right. And
usually the case goes back to the AMC, not the RO.
But VA has the option to get new evidence any time during the appeals
process. It can get independent medical opinions. It goes to VHA
for opinions. It can remand to the AMC to get an opinion. I think it
would be very unfair to close the record and not let the veteran enter
new evidence.
Beyond that, I think it would be very inefficient. If you have a
decision before you, it would be more efficient to have every piece of
evidence you can get up to the point that you start writing the
decision to make the best decision you can make one time, rather than
send it back and adjudicate the case piecemeal.
Moreover, many times during the pendency of the appeal, more evidence
comes in as it is being made -- veterans being rehospitalized and so
forth. So if you had a veteran who appealed a denial of a claim and
then was rehospitalized and opened another claim for an increase while
the first one was on appeal and that was denied, you could have a
second appeal. You could have multiple concurrent claims going at the
same time.
So I would have to say that we strongly oppose closing the record for
fairness reasons and probably for efficiency reasons.
And that concludes my statement, Mr. Chairman.
[The statement of Rick Surratt appears on p. 63]
Mr. Miller. Thank you very much. I have got some questions, but I am
going to ask staff to submit them to you for the record and ask
Ms. Berkley if she has any questions.
Ms. Berkley. I do, and I know that it takes me a little bit longer
to get to the floor than you. I want to thank you very much for that.
What you are saying has truly been the experience that we have had in
my congressional office back home, and seems like just a series of
problems.
But it seems to me that one of the big complaints is that when it is
remanded back, often it is remanded back for records that the veteran
has no control over. The VA has control of their medical records and
has control of their service records as well, which needs to be part
of the complete record.
So it is not -- it is outside of the control of the veterans, and it
gets remanded. So that is a very serious concern to me. A lot of the
information that is needed, the veterans don’t have control of.
But I would be very interested in having attorneys involved in the
initial case rather than waiting. It seems to me that we would correct
a lot of these problems if they had some legal help from the beginning.
So I think that is something that we might want to look at, and I
thank you very much. And I have additional questions, but no time
to ask them.
Mr. Miller. Thank you, Ms. Berkley. And the record may show that she
doesn’t have time to ask them not because the Chairman wouldn’t let
her ask them, but because we have a vote to go to.
But as Mr. Surratt points out in his testimony, and I quote, "Benefits
for disabled veterans and their dependents and survivors are at the core
of the program that the VA administers." And I think that is an
appropriate quote to be using today.
We have to ensure that the claims adjudication process, beginning to
end, serves our core constituency with timely and accurate rating
decisions. We are very interested in your work. We look forward to
working with you and the stakeholders to achieve that end. And with
nothing more for the good of the order, we must adjourn this hearing
and proceed to the floor for a vote.
[Whereupon, at 11:47 a.m., the Subcommittee was adjourned.]