<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24468.wais]
S. Hrg. 109-216
BATTLING THE BACKLOG: CHALLENGES FACING THE VA CLAIMS ADJUDICATION AND
APPEAL PROCESS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 26, 2005
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
_____
U.S. GOVERNMENT PRINTING OFFICE
24-468 WASHINGTON : 2006
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government
Printing Office Internet: bookstore.gpo.gov Phone: toll free
(866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail:
Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON VETERANS' AFFAIRS
LARRY CRAIG, Idaho, Chairman
ARLEN SPECTER, Pennsylvania DANIEL K. AKAKA, Ranking Member,
KAY BAILEY HUTCHISON, Texas Hawaii
LINDSEY O. GRAHAM, South Carolina JOHN D. ROCKEFELLER IV, West
RICHARD BURR, North Carolina Virginia
JOHN ENSIGN, Nevada JAMES M. JEFFORDS, (I) Vermont
JOHN THUNE, South Dakota PATTY MURRAY, Washington
JOHNNY ISAKSON, Georgia BARACK OBAMA, Illinois
KEN SALAZAR, Colorado
Lupe Wissel, Majority Staff Director
D. Noelani Kalipi, Minority Staff Director
C O N T E N T S
----------
MAY 26, 2005
SENATORS
Page
Craig, Hon. Larry, Chairman, U.S. Senator from Idaho............. 1
Obama, Hon. Barack, U.S. Senator from Illinois................... 2
Akaka, Hon. Daniel K., U.S. Senator from Hawaii.................. 4
Rockefeller, Hon. John D. IV, U.S. Senator from West Virginia.... 5
Salazar, Hon. Ken, U.S. Senator from Colorado.................... 5
Murray, Hon. Patty, Ranking Member, U.S. Senator from Washington. 6
WITNESSES
Cooper, Hon. Daniel L., Under Secretary for Benefits, Department
of Veterans Affairs; accompanied by Ronald garvin, Acting
Cahirman of the Board of Veterans' Appeals; and Robert H.
Epley, Associate Deputy Under Secretary for Policy and Program
Management, Veterans Benefits Administrarion................... 7
Prepared statement........................................... 8
Kramer, Hon. Kenneth B., Former Chief Judge, U.S. Court of
Appeals for Veterans Claims.................................... 28
Prepared statement........................................... 30
Bascetta, Cynthia, Director, Education, Workforce, and Income
Security, Government Accountability Office..................... 33
Prepared statement........................................... 34
Chisholm, Robert, Past President, National Organization of
Veterans' Advocates............................................ 38
Prepared statement........................................... 40
Surratt, Rick, deputy National Legislative Director, Disabled
American Veterans.............................................. 42
Prepared statement........................................... 44
APPENDIX
Response to written questions submitted by Hon. Larry E. Craig
to:
Daniel L. Cooper............................................. 65
Robert V. Chisolm............................................ 73
Rick Surratt................................................. 74
Kenneth B. Kramer............................................ 88
Response to written questions submitted by Hon. John D.
Rockefeller IV to:
Daniel L. Cooper............................................. 87
Kenneth Kramer............................................... 89
Kinderman, Quentin, Deputy Director, National Legislative
Service, Veterans of Foreign Wars of the United States,
prepared statement............................................. 89
BATTLING THE BACKLOG: CHALLENGES
FACING THE VA CLAIMS ADJUDICATION
AND APPEAL PROCESS
----------
THURSDAY, MAY 26, 2005
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:02 p.m., in
room SR-418, Russell Senate Office Building, Hon. Larry E.
Craig (Chairman of the Committee) presiding.
Present: Senators Craig, Burr, Thune, Akaka, Rockefeller,
Murray, Obama, and Salazar.
OPENING STATEMENT OF HON. LARRY CRAIG, U.S. SENATOR FROM IDAHO
Chairman Craig. Good afternoon, everyone, and welcome to
the Senate Committee on Veterans' Affairs. We have entitled
this hearing, ``Battling the Backlog: Challenges Facing the VA
Claims Adjudication and Appeal Process.''
This afternoon, we will discuss the state of the Department
of Veterans Affairs' claims adjudication and appeals system. It
is through this system that separated service members must
proceed in order to receive VA disability compensation for
injuries sustained during military service.
Especially during the time of war, when we have thousands
of wounded soldiers returning from the battlefield, it is
essential that we ensure there is a system in place that will
provide prompt and accurate decisions to those who have served,
sacrificed, and suffered for our Nation.
Over the years, there has been significant concern about
the backlog of claims in the VA system, the length of time
claims remain pending; and the quality of the decisions being
rendered. And in recent months, there have been serious
questions raised by the press, members of Congress, my
colleague who is a member of the Committee and has joined me,
VA's Office of Inspector General, regarding the ability of this
vast system to provide consistent decisions for veterans across
the country.
Earlier this year, Secretary Nicholson testified before
this Committee that, as a presidential initiative, improving
the timeliness and accuracy of claims proceedings remains VA's
top priority for VA's benefits program. And our Committee is
also committed to ensuring that we continually strive to
improve this system.
To that end, today we will discuss how well the current
system is serving our Nation's veterans, what challenges the
system is facing, and what steps can be and should be taken to
ensure that, now and in the future, our veterans will not
endure delays in receiving a fair resolution of their claims.
Joining us for this discussion we have on the first panel
the Honorable Daniel Cooper, the Under Secretary for Benefits
in the Department of Veterans' Affairs. Welcome, sir. He is
accompanied by Ronald Garvin, the Acting Chairman for the Board
of Veterans' Appeals. Welcome. And Robert Epley, Associate
Deputy Under Secretary for Policy and Program Management for
the Veterans Benefits Administration. Bob, welcome.
On our second panel, we will be pleased to have a very
distinguished public servant, the Honorable Ken Kramer, who
recently retired as the Chief Judge of the United States Court
of Appeals for Veterans' Claims; and in a former life in which
I first knew him, as a Congressman from Colorado.
We also are pleased to be joined on the second panel by
Cynthia Bascetta, Director of Education, Workforce, and Income
Security for the U.S. Government Accountability Office; Rick
Surratt, the Deputy National Legislative Director for the
Disabled American Veterans; and Robert Chisholm, former
president, National Organization of Veterans Advocates.
Ladies and gentlemen, we welcome you all. Our Ranking
Member has just arrived. While he is getting his house in
order, I know that the Senator from Illinois has an appointment
awaiting him, so I am going to turn to Senator Obama for his
comments, and then we will come back to Senator Akaka, the
Ranking Member of the Committee.
Senator.
OPENING STATEMENT OF HON. BARACK OBAMA,
U.S. SENATOR FROM ILLINOIS
Senator Obama. Thank you so much, Mr. Chairman. Thank you
to my wonderful Ranking Member, for allowing me the prerogative
of going quickly. I apologize in advance; I am going to have to
leave in a few minutes, but will try to get back before the end
of the hearing.
I want to thank Admiral Cooper and the other persons on the
panel for your appearance and participation in this important
hearing.
You know, when we call our armed forces to go into battle
to defend this Nation, they don't tell us, ``Not now; it is not
a convenient time,'' or, ``Call us back in a couple of months;
we will be ready then.'' Instead, what they do is, they respond
immediately, and go bravely into battle to fight for our
democracy.
Their prompt response to their Nation's call to arms stands
in stark contrast to how our Government seems to be dealing
with these soldiers when they return home. When veterans ask
for their earned benefits, and decide to appeal a decision,
they are subject to, on average, a 3-year wait. In fact, some
veterans are asked to wait more than a decade to have their
claims fully adjudicated.
This doesn't sit right by me. I don't think it sits right
by the American people. I know that Admiral Cooper has been
working diligently to try to improve the situation. But part of
my specific and particular concern arises out of the fact that
there also appear to be large discrepancies between benefits
that are paid in various States.
Admiral Cooper, along with Secretary Nicholson, attended a
town hall meeting in Illinois this past week to discuss what
could be done to improve the variability in rating certain
illnesses; particularly those like post-traumatic stress
disorder, that may not have objective visible physical
attributes.
And the reason I think I am very concerned about how we are
moving forward is, number one, that in Illinois, Secretary
Nicholson discussed the fact that we may need to look at claims
from the past in which Illinois veterans seem to have been
shortchanged. And I am going to be working with Admiral Cooper,
Secretary Nicholson, and others, to try to figure out how we
set that system up.
More broadly, it appears that the claims delays are worse
in Illinois and in the Chicago regional office, than they are
in other parts of the country. And finally, even where the
national average is concerned, it appears to be far too high.
I think that we have a lot of work to do, both specifically
to Illinois and across the Nation. We need to shorten the time
that it takes to file and appeal a claim. I hope that we can
create some standards that create consistency in the
disposition of these claims at the end of them.
I have read the written testimony that is being presented.
I will be very interested in figuring out how we on the
Committee can be helpful to the VA in making significant
progress in this area.
The last point that I would make, Mr. Chairman, is that one
of the things that happened when Secretary Nicholson was at our
town hall meeting in Illinois was an acknowledgement that some
of the variability, and certainly some of the delay, had to do
with what appears, at least from the IG's report, some under-
staffing in some of these offices. When we had discussions
during the budget debate about getting more money into the VA,
there was a presentation made by the Secretary that in fact we
had sufficient money to deal with these claims. Both things
can't be true.
If, in fact, part of the problem has to do with the fact
that the VA just doesn't have enough personnel to deal with
this backlog and get the time for appeals down to the stated
goals that have been established, then we have to have that
reflected in our budget and that has to be part of the
commitment that we make to our veterans.
I don't want to be criticizing a department that is
understaffed for not operating as quickly as it should. On the
other hand, I expect that department to be honest when it says
that it is short-staffed, so that we can get them the
resources. And so, to the extent that Admiral Cooper will be
touching on staffing issues as part of this whole conversation,
I will consider that testimony with great interest. Thank you
very much, Mr. Chairman.
Chairman Craig. Thank you, Senator.
And now let me turn to our Ranking Member, Senator Akaka.
Dan.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
RANKING MEMBER, U.S. SENATOR FROM HAWAII
Senator Akaka. Thank you very much, Mr. Chairman. I am so
happy that we are having this hearing today and having the
distinguished witnesses we have. And I am very pleased to
welcome back to this Committee Admiral Cooper.
Mr. Epley, I understand that this will be your last time
with us. And thank you so much for your service to our Nation's
veterans.
Former Chief Judge Kramer, I am very pleased that you have
agreed to join us today to give us your special insight into
the claims process and how it is working. And we hope to have
you make suggestions for improvement.
I, additionally, want to thank the rest of the panel
members in advance for testifying before us today. As we all
know, the claims process is very important for our Nation's
veterans. All veterans deserve no less--no less than quality
workmanship done in a timely manner.
Those of you on the second panel have a unique perspective
on claims processing, and I am happy that you are here to share
it with us today. We plan to use this hearing as an
opportunity; an opportunity to hear all angles of the issue.
This hearing will be broadly focused; hopefully, touching
on major areas of concern in the VA claims process. The
information gathered at this hearing will be used as a basis
for more narrowly-tailored hearings in the future.
Along with Chairman Craig, I look forward to building on
what we learn today and in subsequent hearings. To date, in
fiscal year 2005, 43 percent of the claims reaching the Board
of Veterans' Appeals are remanded. These remands worry me
because of the additional time it adds to the process. Today, I
hope to hear about the causes of these remands, and possible
ways to eliminate the errors at the regional office level that
are causing the high remand rate.
I also note to Admiral Cooper that your testimony states
that delays in remand processing grew as a result of the
resource demands of the total growing workload. Admiral Cooper,
I would like to work with you to appropriately address this
situation.
I want to thank the VA for the proactive steps it has made
towards decreasing the delay in standardizing business
processes through the creation of the appeals management center
and the claims processing improvement model. However, we can
all see that there is much more work to be done.
I want to make a few remarks about the recent VA Inspector
General's report. The report states that it is statistically
impossible for each State to have virtually identical average
payments, and that there are numerous factors that affect
payments by State. The report says the VA must determine, and I
quote, ``whether the magnitude of the variance from the highest
average State payment to the lowest average State payment is
within acceptable limits.'' I, for one, believe that it is not.
The Inspector General states that some reasons for the
payment differential are timeliness pressures, greater
experience, and training. These all seem to be personnel and
staffing issues that could be fixed if the VA and Congress
worked together to allocate the necessary resources.
Another factor stated in the report is subjectivity in PTSD
claims ratings. While some disabilities such as PTSD are more
prone to subjective rating decisions, such subjectivity adds to
the inconsistent decisions. There must be common standards for
rating PTSD to ensure fair treatment of our veterans, whether
they live in New Mexico or Illinois. But these common standards
should not overlook the varying degrees of disability caused by
PTSD.
I am happy to know, Admiral Cooper, that you agreed with
the review findings and recommendations of the report. I hope
that you will periodically inform the Committee on the VA's
progress in correcting the problems within claims processing.
Thank you. I look forward, Mr. Chairman, to hearing the
testimony of our witnesses.
Chairman Craig. Senator Akaka, thank you very much.
Senator Rockefeller, any opening comments?
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, U.S. SENATOR
FROM WEST VIRGINIA
Senator Rockefeller. Mr. Chairman, thank you for having
this hearing.
My West Virginia staff, which is a third of my total staff
members, spends almost half their time on claims cases having
to do with veterans. I will just say, I look forward to the
testimony. I understand that there may be some interesting
ideas coming out of the testimony. Thank you.
Chairman Craig. Thank you very much.
Senator Salazar, any opening comments?
OPENING STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR FROM
COLORADO
Senator Salazar. Thank you very much, Chairman Craig, and
Ranking Member Akaka, and members of the Committee. And to all
the witnesses, we look forward to your testimony.
I look forward, as well, to hearing from another Coloradan,
former Congressman Ken Kramer, about his thoughts on how we
might be able to improve this system.
This is only my fifth month here in Washington, D.C., so I
am the number-100 Senator. But this Committee to me is one of
the most important things that I work on here. And it is
because in Colorado, as I travel around my State, I hear so
much from the veterans in Colorado about delays in processing
their claims. And like Senator Rockefeller spoke earlier, it is
one of the areas that consumes a significant amount of the time
in my office.
We can tell the story in the lives of veterans who approach
us and tell us about the hardships that are being caused by
delays in the processing of their claims, or we can look to the
statistics. And when we look at the statistics, I understand we
have 340,000 veterans that are waiting for their claims to be
adjudicated at this time. And that is up 86,000 from October of
2003.
The average wait for a rating on debated claims jumped from
111 days to 119 days in that same period. And thousands of
veterans have waited around as sometimes, from their point of
view, they get passed around kind of like an administrative
football.
These veterans are men and women who didn't hesitate when
our Nation called them to serve. They did not delay when they
were ordered to risk their lives for us. Yet we are asking them
sometimes to wait years for the benefits that they are entitled
to. And so the purpose of this hearing, hopefully, will be to
help us work together to figure out how we can do a better job.
An important part of the solution is making sure that the
VA has the men and women power and the resources to do their
jobs. The Veterans' Administration has not, in my view,
properly explained how it will deal with nearly 800,000 claims,
when I understand we only have fewer than 9,000 workers to
process those claims.
These are claims that are longer and more complex than they
were in years past. And I would like Admiral Cooper, in my
admiration and respect for you, to explain how you intend to
cut into that backlog and to improve the accuracy rates, with
the limited resources that you have for this task.
We also need to continue to improve the fairness and
efficiency of the system. It is a system that gives to veterans
of one State an average of $12,000, and gives veterans in
another State less than $7,000. We need to understand why that
occurs. And my home State of Colorado is below the national
average in veterans' compensation.
We need to improve training and communication at the
regional offices, to make sure that the system is fair and
consistent. We need to continue adjusting the system, from
gradual small administrative changes, such as improving quality
control measures, to more significant legislative reforms, such
as simplifying the appeals process in a way that preserves
veterans' rights.
Backlogs and quality control are issues that have bedeviled
the VA for decades. These are not new issues. And it is not one
that I believe we can solve overnight, but I am hoping that
today's hearing and your leadership at the Veterans'
Administration will help us move forward in making progress in
the resolution of some of these issues.
And finally, let me just note that both Senator Craig, I am
sure, and I are delighted with the fact that our good friend
and colleague from Ohio, former Attorney General Al Lance, is
now sitting comfortably in the Court of Veterans' Claims. And I
know that he will do a great job on behalf of veterans in that
position. Thank you, Mr. Chairman.
Chairman Craig. Senator, thank you very much.
We have been joined by Senator Murray. Patty, do you have
any opening comments you would like to make?
OPENING STATEMENT OF HON. PATTY MURRAY, U.S. SENATOR FROM
WASHINGTON
Senator Murray. I will submit my comments for the record.
Let me just join my colleagues in welcoming you all here. You
have a tremendous task in front of you.
We are all heading home for the Memorial Day recess. I am
sure we will all be talking with troops and observing the
holiday over the weekend. We are going to come back and face
some serious issues with some of the claims that are pending,
and continued concern from our veterans who are not getting the
services they need.
And I think every senator in this entire body has someone
working for them full-time helping veterans from their home get
through the process. And I think it really behooves all of us
to determine how we can get through that and deal with the red
tape and the delay in the best way possible for those who have
served us. Thank you, Mr. Chairman.
Chairman Craig. Patty, thank you very much.
Now, then let's turn to you, Daniel Cooper, Under Secretary
for Benefits, Department of Veterans' Affairs. Dan, please
proceed.
STATEMENT OF HON. DANIEL L. COOPER, UNDER SECRETARY FOR
BENEFITS, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY RONALD
GARVIN, ACTING CHAIRMAN OF THE BOARD OF VETERANS' APPEALS; AND
ROBERT H. EPLEY, ASSOCIATE DEPUTY UNDER SECRETARY FOR POLICY
AND PROGRAM MANAGEMENT, VETERANS BENEFITS ADMINISTRATION
Adm. Copper. Thank you, sir. Mr. Chairman, members of the
Committee, thank you for the opportunity to testify today
concerning the VA's disability claims process. I am
accompanied, by Ron Garvin, the Acting Chairman of the Board of
Veterans' Appeals, and Mr. Bob Epley, my Associate Deputy for
Programs.
I understand today that your interest is primarily in the
disability compensation process. This process is built on a
body of law that has evolved over many years. It is
complicated, and it sometimes takes longer than any of us wish
to reach decisions. But at the foundation, the disability
claims process is designed to offer veterans the broadest
opportunities and assistance to apply and reapply for benefits,
so they receive their fullest entitlement.
That single concept--the benefit of the doubt for the
veteran--frames all of the other elements of our process. In my
written statement, I've tried to outline how the disability
claims process works; provide some statistics about our
performance; and provide some description of the major factors
that complicate it.
Over the last several years, several management actions
have been taken to improve the process. We have worked to
bolster our staffing and strengthen the training we provide to
the staff. We have standardized the work process. We have
installed significant performance and accountability measures,
and we monitor those measures diligently.
These steps have helped. We have stabilized our work, but
challenges remain and new challenges continue to arise. One of
our biggest challenges is obviously the growth of incoming
claims. Almost 2.6 million veterans are receiving disability
compensation today, more than at any time in U.S. history.
The number on the rolls is growing at the rate of 5,000 to
7,000 per month. Coincident with this growth, the number of
claims we receive each month is increasing, and the number of
issues on each claim for each veteran is also rising steadily.
Legislative changes also affect our process. Most notably,
the passage of VCAA, the Veterans Claims Assistance Act, had a
dramatic effect on our work. This legislation clarified and
enhanced the VA's duty to assist claimants. But it also
resulted in a larger inventory of pending work, and it
lengthened the process.
In addition, court decisions can affect our claims process.
An example of this was the PVA v. VA case, decided in September
of 2003. This decision directed that the VA hold open many of
our pending claims until one year after the date of claim. It
slowed down the system dramatically for about 3 months, until
Congress passed amending legislation.
Our appeals process is another key component of this VA
disability claims process. Our Board of Veterans' Appeals was
established in 1933 to review evidence, to hold hearings, and
to render quality decisions on appeals of claims for veterans'
benefits. Its function remains essentially the same today.
A claimant initiates an appeal by filing a notice of
disagreement with the original regional office. The regional
office offers the opportunity for the claimant to discuss that
appeal with a decision review officer in that office. Then, if
it does not resolve the appeal, the claimant can continue his
action by filing a substantive appeal to the Board of Veterans'
Appeals.
Claimants also have a right to a hearing on their appeal,
and this can be arranged at the regional office, by
videoconference, or in Washington, DC, at the Board of
Veterans' Appeals. Most appellants choose to be represented
before the Board by veterans' service organizations, and many
of these organizations have appeals units co-located at the
Board here in Washington.
The Board has worked hard to expedite the appeal process,
but the process continues to be a lengthy one. Our management
improvement efforts include emphasis on resolving appeals at
the local level; seeking productivity improvements at the
Board, and centralizing the handling of remands.
In summary, our disability claims process has evolved over
many years. Its fundamental principle is to make the system
work for the veterans' benefit. The process is complicated, and
often lengthy; but we continue to look at ways to improve it.
I welcome your interest in processing systems. I look
forward to collaborating with you on ways to improve the system
so that the veterans continue to see improvements in our
service delivery and each veteran can be fully and fairly
served in a consistent and timely manner.
I will now be glad to answer any of your questions.
[The prepared statement of Adm. Cooper follows:]
Prepared Statement Hon. Daniel L. Cooper, Under Secretary for Benefits,
Department of Veterans Affairs
Good morning Mr. Chairman and Members of the Committee.
I am pleased to appear before you today to discuss the extremely
important work of the Veterans Benefits Administration. As you are
aware, we administer myriad veterans' programs in VBA. Disability
compensation is the one program that probably has the most visibility
in the total veteran community and will be the primary focus of my
testimony today. I will also briefly discuss several other important
programs that directly and deeply affect individual veterans and their
families.
In June 1944 President Roosevelt signed the original GI Bill. This
landmark legislation gave birth to our VA Education and Home Loan
Guaranty Programs. The GI Bill is proclaimed as one of the most
important social actions of that century. It underpinned major economic
change for the 16 million veterans returning from WWII in the European
and Pacific theaters of action, most of whom had never been employed as
civilians. Each of those veterans was eligible for educational benefits
and loans for businesses, homes, or farm purchases. Today, our
Education and Loan Guaranty Programs remain vitally important to both
veterans and active duty servicemembers.
Our Vocational Rehabilitation and Employment Program is directed
specifically at veterans who have an employment handicap as a result of
their service-related disabilities. We assist these disabled veterans
in preparing for and obtaining suitable employment, which often means
establishing rehabilitation programs to help them get a better
education, obtain basic skills and training, or start a business. For
the most seriously injured for whom employment is not immediately
feasible, we provide services to help them gain more independence in
daily living.
Our Insurance Program is administered by the Philadelphia Regional
Office and Insurance Center. We currently have four active insurance
plans, the largest of which is the Servicemembers Group Life Insurance
(SGLI) Program. The SGLI Program makes life insurance available to
every servicemember entering military service. The Philadelphia
Insurance Center and the Office of Servicemembers Group Life Insurance
have done an extraordinary job in serving widows and other family
survivors during Operations Enduring and Iraqi Freedom. Once the
Insurance Program receives the necessary paperwork from the Department
of Defense, payments to the surviving beneficiaries are made in less
than two days.
Finally, our Disability Pension Program is available for wartime
veterans who have low income and are permanently and totally disabled.
Today I am here to discuss the largest of our programs in VBA, the
Disability Compensation Program. Disability compensation is a monetary
benefit paid to veterans who are disabled by injury or disease incurred
or aggravated during active military service. The amount of
compensation varies with degree of disability and, when appropriate,
with the number of dependents. Compensation is paid monthly and is not
subject to either Federal or State income tax. The specific amounts
paid for each 10 percent step in disability are decided by Congress.
Today a veteran with 10-percent disability rating receives $108 per
month. Fifty-percent disabled veterans receive $663; the 90-percent
rate is $1,380; and the 100 percent rate is $2,299. Note the much
larger jump from 90 percent to 100 percent versus any other 10-percent
increment. Those veterans rated 30 percent and higher receive an
additional allowance for a spouse and each dependent child.
The recently released report by the Department's Inspector General
(IG), entitled, ``Review of State Variances in VA Disability
Compensation Payments,'' stated:
``The VA disability compensation program is based on a 1945
model that does not reflect modern concepts of disability. Over
the past 5 decades, various commissions and studies have
repeatedly reported concerns about whether the rating schedule
and its governing concept of average impairment adequately
reflects medical and technological advancements or changes in
workplace opportunities and earning capacity for disabled
veterans. Although some updates have occurred, proponents for
improving the accuracy and consistency of ratings advocate that
a major restructuring of the rating schedule is long overdue.''
The VA Disability Compensation Program has evolved from a long
series of legislative actions, spanning most of a century. Each piece
of legislation was intended to address a specific need, or the needs of
a special sub-population of veterans. The one constant has been
Congress' desire to recognize the sacrifice of those who served in
uniform.
The incremental legislative process has also had the effect of
building an increasingly complicated system. Our Disability
Compensation Program recognizes over 110 diseases that are considered
to be presumptively related to special military service conditions.
These special conditions range from prisoner of war experiences, to
exposure to ionizing radiation, to service in Vietnam (with related
exposure to Agent Orange).
In addition to these complicating factors, and possibly because of
them, the Disability Compensation Program is growing rapidly. Almost
2.6 million veterans are receiving disability compensation today, more
than at any time in U.S. history. The number on the rolls is growing at
a rate of 5,000 to 7,000 per month. Entitlement to disability
compensation drives eligibility to other programs, including VA medical
care, vocational rehabilitation, dependents educational assistance, and
some home loan and insurance benefits. In addition, recent laws provide
for concurrent receipt of VA disability compensation and military
retirement benefits. So there are clear incentives for the VA
Disability Compensation Program to continue to grow.
All of these laws rightfully serve to benefit our veterans and are
extremely important to them. A classic example is the group of laws and
rulings related to Agent Orange exposure. Any veteran stationed in
Vietnam between January 9, 1962 and May 7, 1975 is presumed to have
been exposed to Agent Orange, and any of several diseases they might
have contracted is presumed to be a result of that exposure. The
presumption of service connection for type II diabetes, in particular,
resulted in over 100,000 individual claims.
In addition, a recent law dramatically changed the business of VA
disability claims adjudication. This legislation was the Veterans
Claims Assistance Act of 2000 (VCAA). One of its central provisions
clarified and enhanced VA's ``duty to assist'' veterans with their
benefit claims. In my opinion, this was a proper and well-conceived law
that addressed a deficient process under which VA was previously
adjudicating claims. That law clearly defined VA's responsibilities for
assisting claimants. It made our adjudicators absolutely responsible
for helping each individual veteran know what to do, what is needed to
substantiate his/her claim, and how to respond. It also requires that
we tell the veteran what we will do to assist him or her.
It was as a result of the VCAA, and the immediate and very rapid
accumulation of claims, that Secretary Principi convened the Claims
Processing Task Force in May 2001. His charge was to ``. . . recommend
specific actions that the Secretary (of Veterans' Affairs) could
initiate, within his own authority, without legislative or judicial
relief, to attack and reduce the current veterans' claims backlog and
make claims processing more efficient.''
I was asked to chair that Task Force, although I had had no prior
experience with VA or with claims processing. However, the Secretary
appointed to the Task Force a group of individuals who were extremely
knowledgeable and very motivated. In October 2001, we reported out.
There had been many such reports over the years, each with a larger
scope; but ours was focused on what could be done--soon and under the
purview of the Secretary--without asking Congress to revisit laws or
opinions.
The thrust of our recommendations was to improve the efficiency and
effectiveness of VBA claims processing. Accountability and integrity
were to be absolute. But the engine was uniformity of organization,
application, and process. The Task Force was convinced that each of the
57 regional offices operated in ways unique only to that individual
office. The Task Force essentially dictated the internal organization
of all offices, the IT applications to be used by all, and the standard
business processes to be followed in adjudicating veterans' claims.
This revised, consistent operational structure is now known as the
Claims Processing Improvement (CPI) Model. Additionally, we
specifically increased the oversight from headquarters and in the
field, and we established measurable goals for which all offices are
accountable.
The Task Force also initiated one of the most important and quick-
response recommendations, the establishment of a ``Tiger Team'' in
Cleveland, Ohio, whose only task was to address claims which were over
1-year-old, from veterans over 70 years of age. This specialized team
has also assisted with our most difficult cases, and continues to
fulfill a valuable role.
A primary goal we established, as we made major changes in VBA, was
to increase productivity. We did that in somewhat dramatic fashion. In
the year 2001, we had completed claims at the rate of 41,000 per month
across the country. Last year we produced 63,000 per month. There were
many who said we sacrificed quality. That is incorrect; quality
improved about 6 percentage points. It is now 86 (plus) percent.
In February 2002, the number of pending claims in our inventory
(frequently referred to as the ``backlog'') reached 432,000. Veterans
were waiting 233 days on average for decision on their claims. Over the
next nineteen months, through implementation of the CPI Model
throughout the entire VBA field organization, we reduced the inventory
to 253,000 by September 2003. Even more important, we reduced the time
to provide veterans with decisions on their claims to 156 days.
That same month a judicial opinion (PVA v. Secretary of Veterans'
Affairs) was rendered which stated that we could make no negative
decision on any claim issue for at least one year from the date we
notify the claimant as to what evidence is needed to support the claim.
Three months later, in December, the Congress put corrective language
into effect. By that time the inventory reached 352,000.
Another factor that has to date prevented us from reducing the
inventory much further is the increasing number of disability claims
received each year (674,000 in 2001; 771,000 in 2004; over 800,000
projected to be received in 2005).
A further complicating factor in our process is the number of
disabilities (referred to as claims' ``issues'') veterans are now
presenting in each of their claims. Prior to a decade or so ago, VBA
estimated there were 2.5 issues per claim. Today we are seeing higher
numbers of issues--in many cases, over 10 issues per claim.
Appeals of claims have also measured slightly more than one would
expect for the large increase in decisions. That rate too has peaked
and is coming back down.
Additionally, remands from the Board of Veterans' Appeals, until
just very recently, have been growing. Delays in remand processing grew
as a result of the resource demands of the total growing workload.
In October 2003, we established the Appeals Management Center
(AMC), which receives all BVA remands. It is responsible for completing
all actions possible on these cases, sending only a small number of
remanded cases in certain specific categories to the regional offices
for processing. VBA and BVA also undertook joint improvement
initiatives as a result of a special remand study directed by the
Deputy Secretary. Through the AMC and the joint initiatives, we have
reduced the number of cases being remanded by BVA, and we are slowly
diminishing the inventory of pending remands.
There is also a large body of work activities which are not
``rating claims'' but which also take our human resources to
administer. Not the least of this latter group are Public Contact
Teams, whose members provide information and assistance to veterans
over the phone, conduct our extensive outreach programs, and take care
of the individual veterans who visit our regional offices.
Over the last 3 years of my tenure as Under Secretary for Benefits,
VBA has worked hard to achieve consistency across and among all
regional offices. As you are aware, consistency in disability
evaluations and payments to veterans has become a very visible concern
in recent months, and rightfully so.
The IG's recent investigation found that claims involving more
objective decisions do, in fact, have close to zero variability. On the
other hand, the much harder subjective issues, such as PTSD and other
mental disorders, exhibit variability to a degree that leaves open to
question the consistency of our evaluations for these conditions.
Through the implementation of the Task Force recommendations, I
believe VBA has laid the basic groundwork that will also continue to
bring more consistency in our claims decisions. As previously
mentioned, we have made all regional offices consistent in
organizational structure and work process. Specialized processing
initiatives have been implemented to consolidate certain types of
claims in order to provide better and more consistent decisions. VBA is
now consolidating the rating aspects of our Benefits Delivery at
Discharge initiative, which will bring greater consistency of decisions
for newly separated veterans.
Training, both for new employees and to raise the skill levels of
the more experienced staff, is obviously key to consistency in our
rating decisions. VBA deployed new training tools and centralized
training programs that support greater consistency. New hires receive
comprehensive training and a consistent foundation in claims processing
philosophy and principles through a national centralized training
program called ``Challenge.'' After the initial centralized training,
employees follow a national standardized training curriculum (full
lesson plans, handouts, student guides, instructor guides, and slides
for classroom instruction) available to all regional offices.
Standardized computer-based tools have been developed for training
decision makers (53 modules completed and an additional 38 in
development).
Training letters and satellite broadcasts on the proper approach to
rating complex issues have been provided to the field stations.
Regulations that contain the Schedule for Rating Disabilities are being
revised to eliminate ambiguous rating criteria and replace them with
objective rating criteria wherever possible.
We have stressed giving the ``benefit of the doubt'' to the
veteran, and every regional office has improved. The average annual
amount a disabled veteran receives in each State has increased above
the rate of economic increases.
While we have made major improvements and laid a strong foundation,
the Veterans' Benefits Administration continues to face significant
challenges. The payment variance issue is difficult and complex; our
every effort is be fair and consistent to all veterans, no matter their
disability or state of residence. We obviously must continue to improve
the consistency of disability rating decisions, and we must take
immediate steps to correct any deficiencies in the adjudication system
that contribute to inconsistent rating decisions. The Inspector
General's report has given us a comprehensive assessment of the many
factors that impact this complex issue; and there is still much work to
be done to better understand the regional variance in VA compensation
payments. Our challenge is to ensure that all regional offices are
generating consistently accurate and timely decisions that provide the
maximum benefits to which veterans are entitled.
I believe we must also streamline the appeals process. Any
assessment of the current appeals process raises serious questions
about its effectiveness. As many reviews of the appeals process have
concluded, it lacks finality. The policy and process for addressing
appeals are provided in statute and regulations, drafted and
implemented at different times in history, resulting in a complex
process that consumes a large and increasing portion of finite claims
processing resources. The process can be improved, and veterans and
taxpayers can be better served. While VBA shares the greatest
responsibility for ensuring that the process is fair and timely,
streamlining the process will depend on increased coordination among
the various elements within VA as well as cooperation of stakeholders.
We are continuously challenged to produce more with fewer
resources. In this era of declining resources across all Federal
agencies, we will be even further challenged to increase the efficiency
of our claims processing system. This task is made more difficult by
the ever-growing complexity of the laws and regulations governing our
adjudicative process and the fact that veterans today claim more
disabilities than ever before. We need to continue to make changes in
our processes, supporting technologies, and organizational structures
that enable us to produce more and better decisions with fewer
resources.
The delivery of benefits to veterans and their families is
supported by legacy systems that are not interoperable and cannot be
easily modified to add or enhance applications. Applying the potential
of today's technologies to our business processes is also a major
challenge and one we are addressing. Our most immediate technological
challenge is to migrate benefits processing from the Benefits Delivery
Network to the VetsNet corporate environment. However, we must also
continue to work to more fully integrate IT into our daily business
processes and explore the potential that technology offers for
expanding the services and access provided to veterans.
VBA has dedicated and committed employees across this Nation who
have proven that they are up to these challenges. I am certain the
changes we have made and will continue to make, the training we have
done and still need to develop and carry out, as well as the oversight
we conduct, are making a real difference for the veterans we serve.
Mr. Chairman, as the Secretary's representative before this
Committee today, I want to also talk about the work of the Board of
Veterans' Appeals.
The mission of the Board has remained unchanged since its inception
in 1933--to hold hearings and render quality, timely, and final
decisions in appeals of claims for veterans benefits. The vast majority
of appeals involve claims for disability compensation benefits, such as
claims for service connection, an increased rating or survivor's
benefits.
The initial decision in benefits claims is made by the Agency of
Original Jurisdiction or ``AOJ'', typically one of VA's Regional
Offices or Medical Centers. If that decision is unfavorable, the
claimant may initiate an appeal by filing a Notice of Disagreement. If
the appeal is still not resolved, the AOJ will issue a Statement of the
Case, explaining the rationale for its decision. The claimant then has
60 days from the issuance of the Statement of the Case to file a
Substantive Appeal or VA Form 9 to the Board of Veterans' Appeal. At
this point, the claim is assigned a place on the Board's docket,
although it still remains under the control of the AOJ, where further
development and consideration may be required. As claimants have the
right to a hearing on appeal, the Board will conduct ``Travel Board''
hearings at Regional Offices or videoconference hearings, with the
claimant at the Regional Office and the Veteran Law Judge presiding in
the Board's offices in Washington, DC. Ultimately, if the claim is not
fully granted at the AOJ, and after any requested Board hearing has
occurred, it is then certified and the record transmitted to the Board.
At this point, the Board has jurisdiction over the appeal.
By law, the Board generally must review appeals in docket order.
The vast majority of appellants are represented before the Board by
veterans service organizations, many of which have appeals units co-
located with the Board. They provide representation at hearings at the
Board's offices and submit briefs in support of the appeal.
Once the representative completes his or her presentation, the
Board reviews the appeal, thoroughly considering all evidence and
argument presented and all applicable laws, regulations and other legal
precedents. Board review is de novo--it is based on a fresh look at the
case. The Board will then issue a written decision. The Board may allow
or deny a benefit sought, or, if additional development is necessary or
a procedural defect needs to be cured, it must remand the case back to
the AOJ to fix the problem. If the Board denies the appeal, the
claimant's remedies include filing a Notice of Appeal with the United
States Court of Appeals for Veterans' Claims.
Information is collected throughout the appeals process, from the
filing of the Notice of Disagreement to the final resolution of an
appeal, and is tracked in the Veterans' Appeals Control and Locator
System, or VACOLS. This database enables VA to collect statistical data
on every stage of the appeals process, both at the AOJ and the Board.
It enables VA to measure performance both currently and over time.
For example, using the VACOLS data, VA can determine the elapsed
processing time for each segment of the appeals process at each AOJ and
the Board. VA tracks appeals resolution time--the time it takes from
the filing of the Notice of Disagreement until the claimant receives a
final decision on appeal. The Board measures 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). The Board also
records decisional quality and the reasons for remanding cases to the
AOJ.
The Board's performance, as reflected by the VACOLS data, has
improved over the years. For example, in Fiscal Year 1994, the Board
issued about 22,000 decisions. The Board's pending caseload stood at
47,000, and the measure of timeliness then used--average response
time--was 781 days.
By Fiscal Year 1998, the Board's timeliness markedly improved and
the pending caseload was down to less than 30,000 cases. The Board
issued 38,886 decisions, and held 4,875 hearings. Appeals resolution
time was 686 days.
In fiscal year 2004, the Board issued 38,371 decisions. The Board
also conducted 7,259 hearings--a substantial increase from 1998.
Appeals resolution time decreased to 529 days. Cycle time was reduced
to 98 days. Cases pending at the end of fiscal year 2004 stood at
28,815. And the Board did this with 43 fewer FTE than in 1998.
The Board made these improvements despite several significant
challenges, including the impact of the Veterans' Claims Assistance Act
of 2000, and the initiation and termination of evidence development at
the Board due to the decision of the U.S. Court of Appeals for the
Federal Circuit in Disabled American Veterans' Principi.
The Board did not do this alone, but had much help from:
<bullet> The Congress, providing unqualified support for the
appellate rights of veterans and their families.
<bullet> The veterans' service organizations, which represent about
85 percent of appellants before the Board.
<bullet> VA leadership, that supports improvements in the appeals
process to ensure that veterans receive timely and quality decisions.
<bullet> The staff at the Board, including the Veterans Law Judges,
counsel, and administrative support staff. Through their efforts,
productivity increased, over historic levels, by 20 percent for staff
counsel, and by 25 percent for the VLJs. The number of hearings held
also increased, with videoconference hearings nearly doubling since
fiscal year 1998. Finally, the average number of decisions per employee
increased from 49.9 in fiscal year 1994 and 80.5 in fiscal year 1998,
to 87.3 in fiscal year 2004.
Two of the most significant and persistent challenges faced by the
Board are:
<bullet> Eliminating avoidable remands, and
<bullet> Increasing productivity to contain and reduce the appeals
backlog.
In regard to remands, the Board knows that:
<bullet> Veterans want timely and correct decisions on claims for
benefits. In order to do that, the record must contain all evidence
necessary to decide the appeal and show that all necessary due process
has been provided. If the record does not meet these requirements, and
the benefits sought cannot be granted, a remand for further development
is necessary.
<bullet> Remands significantly lengthen appeals resolution time. A
remand adds about a year to the process. Remands also divert resources
from processing other claims and appeals.
<bullet> The Board is working with VBA, OGC and VHA to identify and
track root causes of remands, to provide training, and, ultimately, to
eliminate avoidable remands. The results are already encouraging, with
the remand rate for the first part of fiscal year 2005 dropping to 42.6
percent, as compared to 56.8 percent in fiscal year 2004. For February
and March 2005, the remand rate was even lower at 38.4 percent. In
April, it was down to 36 percent.
If nothing is done, the Board's backlog is projected to grow to
unacceptable levels. The backlog disposition time--the projected time
it would take the Board, working at its current rate, to eliminate the
backlog--would increase from 170 days in 2004, to 391 days in 2006, and
to nearly 600 days in 2008.
Through incentives and sound management, the Board has beat past
projections, and will continue to do so by:
<bullet> Eliminating avoidable remands: About 75 percent of cases
remanded are returned to the Board, which increases the appellate
workload and degrades timeliness. A 50 percent reduction in remands in
fiscal year 2005 could reduce appeals resolution time by as much as 25
to 30 days.
<bullet> Strengthening intra-agency partnerships: Joint training
efforts with VBA, OGC, and VHA, will improve decision quality and
reduce remands and appeals.
<bullet> Writing shorter and more concise decisions: The Board is
training its Veterans' Law Judges and counsel to write shorter and more
concise decisions.
<bullet> Utilizing employee incentive, mentoring and training
programs: A number of new programs have been introduced to increase
employee motivation and satisfaction, as well as to increase
productivity and decision quality.
<bullet> Making use of overtime: The Board will use overtime within
existing resources to enhance productivity.
<bullet> Increasing use of paralegals: The Board will increase the
use of paralegals for non-decisional support activities.
The Board believes these measures will work to reduce the backlog
and shorten the time it takes for a veteran to receive a well-reasoned
and final Board decision. Already, VA has reduced the time it takes for
an appeal to be finally resolved from 686 days in fiscal year 1998, to
529 days in fiscal year 2004. Decision quality at the Board has
improved from 88.8 percent in fiscal year 1998 to 93 percent in fiscal
year 2004, and the Board's cycle time is a little over three months.
The Board of Veterans' appeals will continue working to develop new
and creative solutions to the challenges faced in order to fulfill its
statutory mission to hold hearings and provide timely, high quality
decisions to the Nation's veterans and their families.
Mr. Chairman, this concludes my testimony. I greatly appreciate
being here today and look forward to answering your questions.
Chairman Craig. Thank you, Mr. Secretary. Are claims filed
by veterans decided on a first-come, first-served basis?
Adm. Copper. Not specifically. The fact is, when Senator
Rockefeller chaired the Committee during my confirmation, just
after we had completed the study, I explained how we were going
to change the system. One component we have is a ``triage.''
With triage, we look at every claim that comes in to see if we
can satisfy it immediately, rather than delay resolving it.
If we cannot render an immediate decision, we move on to
our next processing step, predetermination. We review the claim
and send a VCAA letter back to the veteran explaining exactly
what we can do and exactly what he or she should try to do, and
what type of information is needed to process his or her claim.
We then send out for the other information we need. When it
comes in, we compile the information and someone works the
claim.
For those severely disabled coming back from OIF/ OEF, we
have set up what we call ``seamless transition''. When they
come back and while they are still in the service, we try to
adjudicate the claim, so that on the day they leave the
service, the day that we get the DD-214, we will finalize the
claim and, within approximately 30 days, they will receive
their first check. Similarly, with the National Guard and
Reserve, we try to process their claims as fast as we can.
And finally, for all people who are leaving the service,
from whatever place, we try to have what we call ``benefits
delivery at discharge.'' In that system, we request/suggest
that, if they can get their discharge physical exam--and we
will help them arrange to get the exam--then we will start
processing the claim, with the hope that we can have it done by
the time they are discharged. And that is a system that we are
trying to expand, so we can get those people as they leave.
With those exceptions, claims that come in are processed on
a first-come, first-served basis.
Chairman Craig. So you are telling me a young man or woman
coming out of Iraq, injured, ultimately discharged from active
service or the Guard or Reserve, by the process you have set
up, goes to the front of the line?
Adm. Copper. Essentially, goes to the front of the line.
That is correct, yes, sir.
Chairman Craig. OK. Many attempts have been made over the
past decade to fix the delays in the claims processing system.
More money for staffing has been provided; different management
techniques--you have discussed some of those--under both
Democrat and Republican Administrations have been employed.
I am looking at the numbers here. During the Bush years, we
have increased funding by about 40 percent, 44 percent in this
area. This year's budget is awfully close to the independent
budget, at about 28 percent increase. And yet, the lines seem
to keep building.
What haven't we tried? And is there something in the law
that can be changed to produce a swifter, more accurate
decision-making process?
Adm. Copper. First, let me say, if I knew what we hadn't
tried, I would have certainly made a great effort to try it.
When Secretary Principi asked me to head a taskforce, he
told us specifically, ``I want you to look at everything under
my purview, the changes we can make to do this thing
properly.'' We certainly attempted to do that.
I think that the Commission on Disability Claims should be
looking at the entire process, and trying to understand the
overall process rather than focusing on its component parts.
Some of those things will be controversial. But I think the
Commission needs to study it thoroughly, and then come back
with recommendations.
There are obviously things that make the process longer.
But everything that is in, the law that has been passed, every
judgment that has been made, in fact has been for the benefit
of the veterans, as it should be. It occasionally takes us too
much time to try to understand precisely how to implement it.
Chairman Craig. Thank you very much. Let me turn to Senator
Akaka.
Dan.
Senator Akaka. Thank you very much, Mr. Chairman. Admiral
Cooper, it is anticipated that one in five service members
returning from Iraq and Afghanistan will suffer from some form
of a stress-related disorder. According to last week's VA
Inspector General report, stress disorder claims are more
subjective judgment and create disparities among veterans
receiving these benefits. What can be done to establish a more
consistent standard for awarding disability payments for mental
disabilities?
Adm. Copper. I think one of the things that the Inspector
General stated was he was bothered by the disparity from one
State to another in the rating of claims for PTSD.
He also was very concerned by the fact that he looked at
2,100 records that were rated at close to 100 percent due to
PTSD or individual unemployability, IU. What we are going to
do, starting a week from Monday, is to call in all of those
cases that he saw, the 2,100, in which he didn't think the
stressors were properly shown.
In order to process a PTSD claim, you first have to find a
time in the service in which the veteran was exposed to
something, or a series of things, that would be considered the
stressor. Then you determine the degree of disability for PTSD.
So there is essentially a two- or three-step process to go
through. The final disability rating itself is predicated upon
the medical examination.
One of the main things the Inspector General found was that
our people had not always listed the proper stressor, or
identified it in such a way that he thought was appropriate.
Therefore, we feel it is very important that we review all
2,100 of these to make sure that they are properly adjudicated.
If they are not, if the stressors are not appropriate, we will
go back to the veteran and work with him or her, and work with
the VSO representative and ensure that we get it right.
During this process we will attempt to get a template that
will help us review all of our PTSD cases, to ensure that we
have adjudicated them properly.
Simultaneously, we are working with VHA, to ensure that
proper medical templates are available for them to do the
medical exams, which will then allow VBA to establish the
degree of disability.
Senator Akaka. Admiral, claims must be reviewed with
standard practices and procedures across all 57 ROs. What is VA
doing to ensure that there is a consistent level of training
for all claims processes across all VA region offices?
Adm. Copper. Training is very important, as you know. And
with my background as a nuclear submariner, I strongly believe
in training. We have pushed training fairly hard over the last
8 months. That is why I have imposed certain training
requirements in each regional office. But more than that, we
have computer modules that we use to train our workforce in
different aspects of claims processing.
We also have centralized training. When we hire new veteran
service representatives or rating veteran service
representatives, we put them through centralized training, and
try to ensure that training continues when they return to their
regional offices.
I have also required the regional offices to send me
reports concerning the training they have carried out and the
degree to which they have followed our requirements on
training.
Finally, I would say to you that, we have improved our
quality review program. Before we established the claims
processing taskforce, evaluation of quality was much more
localized. We immediately decided to centralize quality review
at one location in Nashville. That gives us a good idea of how
well each of the 57 regional offices is doing.
When we identify weaknesses or problems, we provide
specific feedback to the regional office. And I expect them to
stress that in their training, ensuring that they correct the
problem.
Senator Akaka. Mr. Chairman, my time is nearly up. I have
other questions.
Chairman Craig. OK. We will come back for another round.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman. I didn't
intend to ask this question, but the thought of trying to go
back and determine when the stress in combat--either as it
relates to mental illness, which I think Senator Akaka was
referring, or to PTSD--occurred, is complex, I think you would
agree.
Adm. Copper. Yes, sir.
Senator Rockefeller. Because, first, it implies that stress
may not be accumulated, but it may have arisen only because of
a series of episodes.
Adm. Copper. Yes, sir.
Senator Rockefeller. Maybe some episodes one year, some
another episode the next year. One of the great experiences, or
the bad experiences, of the Gulf War Syndrome PTSD awakening
was that it was very much accumulated--at least, that is the
way I saw it--that it wasn't necessarily episode based; that
episodes sometimes lingered simply because of the memory of
them, even though the episode itself had stopped. I am just
interested in the formulation of how you determine an episode
for PTSD or a stressor.
Adm. Copper. The veteran is usually the one that says, ``I
received a stressor at this time, or with this unit, during
this period.'' There are other forms of evidence, by the way,
such as a combat medal that he might have gotten.
The VSOs help us verify the evidence. There is also an
organization down at Fort Belvoir called ``CURR.'' We go to
them and make sure, for example, that the veteran was a member
of a unit, that was in fact where he said it was and was in a
firefight. There are certain very specific requirements and
steps we must follow to ensure that we establish the stressor.
Senator Rockefeller. Do you remember what I refer to as the
``Zumwalt result''? And that was during the Vietnam War. Agent
Orange was used and it seems to me that it would have been very
difficult, since it was used quite a lot during certain
definable periods. Soldiers were the recipient of it. The
Congress didn't know what to do about it and the Administration
wasn't doing anything about it.
It has always interested me--not happily--that it was when
Admiral Zumwalt's son developed cancer from Agent Orange that
the Congress decided that we had just better take on Agent
Orange in general, almost as if it was a presumption, if you
had cancer and you had been at some time exposed.
That is a problem which is easier within the coal mines,
but is not done within the coal mines. Ken Salazar and I would
probably agree that if you have been working underground--I
guess you don't do that in Colorado--if you have been working
underground for 10 years and breathing the dust, there is a
presumption after 10 years that you have black lung, and the
Government kicks in. Now, the Government and the Congress, in
our lack of wisdom, only reimburse 4 percent of those who we
believe have black lung--money problems. But stress is hard to
measure.
Adm. Copper. Yes, sir.
Senator Rockefeller. In the measuring of it, I am sure the
expense goes up as a result. But in the measuring of it, also,
the expense goes up as a result of trying to measure it, and
perhaps inaccurately.
I don't actually ask for a question, because I think it is
not a fair question to you; but if you had any thoughts, they
would interest me.
Adm. Copper. I honestly cannot talk to you about measuring
the effect. I can say that, in order to start the claim for
PTSD, a stressor is the component you need. You have to have a
stressor for PTSD. That is pretty well laid down.
My immediate concern is that we inappropriately identified
a condition as PTSD, when it might be something else. No doubt,
the people are ill. The issue is whether the cause is PTSD. We
had not recorded the stressor, according to the IG, in 25
percent of the cases. I need to solve that problem and ensure
we do that part properly.
And as we do that, then we are working with VHA to make
sure that we have proper templates for evaluating PTSD. I am
afraid I didn't answer your question exactly, but I was trying
to make a point.
Senator Rockefeller. No, but you have been honest in
approaching it, and I appreciate that.
Adm. Copper. Thank you.
Senator Rockefeller. Thank you, Mr. Chairman.
Chairman Craig. Senator, thank you.
Senator Salazar.
Senator Salazar. Thank you, Mr. Chairman. Admiral Cooper,
two questions. First, with respect to the Veterans Disability
Benefits Commission, what kind of guarantees can you give to
this Committee that it will be a credible effort? Within some
of the communications that I get in my office there have been
concerns expressed that the Commission has been created simply
as a thinly-veiled effort to try to cut back on veterans'
benefits.
I think that it is always a worthwhile effort for us to
examine our processes and to make sure that we have credible
efforts. And I believe that this is a credible initiative, but
I would like you to tell us what kind of assurances you can
give us on that.
And then the second question that I would like you to
respond to just has to do with the manpower at the VBA, with
800,000 claims pending and with the manpower that you have
assigned to processing those claims; a comment on whether or
not you believe we have enough resources focused in on the
problem.
Adm. Copper. Let me talk about the President's Commission.
Quite frankly, since I am not of member of the Commission, I
can't guarantee anything. I've talked to them when they've
asked me to come, and the next time they meet, I am going to be
talking to them about claims processing.
I have been very impressed with the chairman, General
Scott, and I have seen them in action. Mr. Surratt, who will
testify next, might be able to give you better insight. They
certainly seem to be listening carefully.
I do not know exactly what experience everybody has. Again,
I imagine Mr. Surratt probably has more experience than
anybody. But it looks to me like it is a balanced group of
intelligent people who want to do what can be done.
We support them, but we are very much ``hands-off.'' If
they have questions, we answer them at open hearings and that
sort of thing. So I can't give you a guarantee, but it looks to
me like it is a professional group that has been put together.
It looks to me like they tried to do what could be done to
get people across a broad range. I think one of their
requirements was that a certain number had to have a combat
medal--and I forget which one it was--but something that
indicated that they had in fact been in combat. That is about
the best answer I can give you on that.
As far as manpower goes, you know, we put together a budget
2 years in advance. As a result, when we get an influx of
claims--it went up 5 percent last year and it looks like it is
going up 5 percent again this year--we have to go through a
very careful process to ensure adequate resources. We are doing
that now.
I cannot give you a specific answer. I am talking to the
Secretary about this. And that is really the best answer I can
give you right now.
Senator Salazar. Let me just follow up with a question on
that, then. If claims are up 5 percent last year, another 5
percent this year, we have a 10 percent increase; and yet the
manpower within the VBA has not kept up at that same
proportion. I am certain it has not grown by that level of 10
percent.
So in your own mind and in your own calculation, what
additional resources would you need to be able to process those
claims in the kind of timely and prompt manner that I am sure
you would want to?
Adm. Copper. Again, I can't give you a number. We would
have to look at it. The IG report certainly indicated that the
people working out there felt we needed some more. I haven't
looked at that that closely. But I would like to make one----
Senator Salazar. Can I just follow up?
Adm. Copper. Yes, sir.
Senator Salazar. When would you be in a position where you
could provide that information to at least this Senator, and
probably this Committee? I think it is an issue that we would
very much want an answer to.
Adm. Copper. Yes, sir. And my answer, honestly, would be
that after I talk to the Secretary and we look at this together
and talk it through.
Senator Salazar. So over the next several months, next
several weeks?
Adm. Copper. I can't answer that question. We will be
talking fairly shortly about the IG report. He and I went out
to Illinois last week. So it is an ongoing process. I am
talking with him; I am talking to the Deputy Secretary about
this. And I cannot give you a specific time.
Senator Salazar. What I would like to do, Admiral Cooper,
is to have you get to us the information that essentially
describes what the gap is in resources that you need to
effectively process these claims----
Adm. Copper. Yes, sir.
Senator Salazar [continuing]. Given the unanticipated surge
that we have had in both last year's claims and this year's
claims. And I am sure that, I mean, since you are working at
it----
Adm. Copper. Yes, sir.
Senator Salazar [continuing]. At the appropriate time, if
you would get that information to us, I very much would
appreciate it.
Adm. Copper. Sure. Could I please address one more thing?
Senator Salazar. Yes, sir.
Adm. Copper. You mentioned in your discussion that our
workload increased by 80,000 cases since September of 2003.
September of 2003 was the time that the court made the decision
that, for 3 months we could not make any decisions that were
negative. In other words, if a veteran had an issue and we
found--let's say he had five issues, and we had two of them we
could find affirmatively, and three of them we had to say
``No.'' We could go back with the two affirmative; we could not
go back with the three to say ``No.'' And that happened for 3
months.
And by the end of that 3 months, we had gone from 253,000
to 352,000. Today, we are at 340,000, and I am having
difficulty getting that down. But I wanted to put it in
context, because that jump was for quite a specific reason.
Senator Salazar. OK. Well, I thank you for that.
Adm. Copper. That does not remove my problem, but I just
wanted to put that in perspective.
Senator Salazar. Thank you very much, Admiral Cooper.
Adm. Copper. Yes, sir.
Chairman Craig. Thank you.
Senator Murray.
Senator Murray. Thank you, Mr. Chairman. Admiral Cooper, we
have in Washington State thousands of guardsmen and reserves
who are coming home now. And I am very concerned about the
limited access to the VA the 2-year period will have on their
eventual compensation. Are you concerned that that short amount
of time will limit their ability to assess their injuries and
get compensated?
Adm. Copper. I think your question addresses the medical
treatment that they get for the 2 years. That should not affect
any claim they make to us. We should be able to handle their
disability claims in a very appropriate time. Unfortunately,
our processing time is too long right now, but we should be
able to handle them appropriately and to our best ability. That
2-year open period to use medical services should not impact my
work at all.
Senator Murray. And to be able to give them compensation?
Adm. Copper. Yes, ma'am.
Senator Murray. OK. Can you tell me, there is not a large
number, but there are a number of veterans who are maybe
winning a case, but dying before receiving compensation. And
Secretary Principi had told us the VA was going to examine
whether that law should be changed to allow the estates of
veterans to collect back benefit awards. Is that something that
you are still considering?
Adm. Copper. I am sorry, I have not been involved in that.
I cannot answer that question. I am not aware of anything going
on right now. However, one of the things we did do, coming out
of our taskforce, we established a ``tiger team'' in Cleveland,
looking at, particularly at that time, veterans who were at
least 70 years old and had a claim pending for more than 1
year.
I think there were 10,000 to 12,000 at that time. That is
now down to about 2,000.
Mr. Epley maybe can add to that.
Senator Murray. OK.
Mr. Epley. I think that we can address it partially,
Senator. There have been laws on the books for years that allow
us to pay accrued benefits if a veteran had a claim and all the
evidence was in the VA's hands at the time the veteran passed
away.
There has been until recently a 2-year limit on the accrued
benefits, but I believe a year ago Congress passed legislation
to liberalize that and extend it.
Senator Murray. OK.
Adm. Copper. I am sorry. I had forgotten that.
Senator Murray. OK. Very good. I would like to ask if you
are noticing whether any of our veterans are seeking less
medical care once they are determined to be 100 percent
disabled?
Adm. Copper. I, personally, cannot address that. That, of
course, is what the IG said. The IG seemed to feel that there
was a certain percentage of those they looked at who had not
gone back for the PTSD treatment. But I can do no more than
look up what the IG said.
Senator Murray. So you don't know whether it is true or
not? You just have the IG report?
Adm. Copper. I have the Inspector General's report. I have
no reason to think that what he said is not true. I just don't
have any personal knowledge.
Senator Murray. OK. Well, let me then ask you what lessons
you think we can learn from the current appeals process, so we
can make sure that our servicemen and women don't go through
this grueling process 20, 30, 40 years from now.
Adm. Copper. I would say the Presidential Commission has to
look at the appeals process and determine what can be done to
improve it. I want to reiterate that everything that has been
done has been to help the veterans and to make sure they get a
chance to provide evidence to support their claims.
It is more difficult if, during the appeal process a
veteran submits new information to BVA. There is a concern
whether there, should be some kind of a limit on how often, how
long in the process, more information can be added?
What I would like is to have all the information come to
us, and let us make the decision. Now, there may be many
reasons for not closing the record, and I am not judging that.
I am merely saying that that is something that at least should
be looked at.
Senator Murray. OK.
Adm. Copper. A second thing is, the average you see is an
average time for processing a claim. Over the last few years we
have gotten claims from veterans from World War II.
These claims take more time because we have to retrieve
their records from the Records Maintenance Center. It is very
difficult sometimes to get records. That extends the process.
Senator Murray. So are we doing something right now with
the soldiers who are returning, to have their records be in a
better spot, in a better place, and better accessible?
Adm. Copper. Yes, we are. We have our own records center, a
records center for veterans that we started up about 13 years
ago in Saint Louis, called ``Records Maintenance Center.''
The third thing that I think is really important, and the
thing that I am pleased with, is our benefits delivery at
discharge program. If we can get the individual the minute he
leaves the service, we then have his record, we have his first
claim, and we have whatever is needed to adjudicate the claim.
And then later on, if he reopens his claim we have the record
readily available.
One of the things we have done to better utilize our
personnel resources is to have two primary adjudication
centers. We take claims in 140 separate benefits delivery at
discharge sites. We will send them to one of two places--Salt
Lake City, Utah or Winston Salem, North Carolina--and have them
adjudicated. That should give us more consistency and help us
make better use of the people we have.
That is one thing we are trying to do to improve
processing. I really think that getting these claims as soon as
the person is discharged is important. The second point I would
make is that we are working with OSD now to a degree I have not
seen before, so that they will help us, in getting the records.
I can foresee that, within a few years, we will be able to
electronically get records from OSD that will further expedite
the system.
Senator Murray. OK. Thank you very much, Mr. Chairman.
Chairman Craig. Patty, thank you very much.
Senator, Burr, questions?
Senator Burr. Thank you, Mr. Chairman. Admiral, I am going
to be somewhat pointed, so please don't take it personally. My
colleagues have been very kind in the way they have stated some
things. Do we have a problem?
Adm. Copper. Yes.
Senator Burr. When are we going to fix it?
Adm. Copper. That's a harder question. The fact is, we have
been trying. We have been doing a lot of things to improve the
process. We have been doing a lot of things to get consistency.
We are looking at several different things to attempt to
resolve the problem.
Senator Burr. I asked both the Secretary in his
confirmation hearings and Dr. Perlin when he came before the
Committee, looking at the veterans that are going to be coming
back, looking at the amount of deployment, if we looked at the
resources that we are going to need to take care of this
population----
Adm. Copper. I believe that we will be--I'm sorry.
Senator Burr. Well, let me just say this. Their answer was
``Yes.''
Adm. Copper. I believe we have the resources to take care
of them as they are going through the seamless transition or
benefits delivery at discharge. But right now that is a small
percentage of the case load.
More than half--57.9 percent, I think was the amount--of
claims we get are reopened claims, from veterans who have
already gotten their initial claims decision and are coming
back, either because they have other conditions that they think
are a result of their service--or their condition has
deteriorated.
Senator Burr. And I understand that, and I think every
member understands that. And, we are willing to work with you
for whatever tools or changes you need to be able to handle
that. Because we give them that right.
Adm. Copper. Yes, sir.
Senator Burr. And that may be the subject of discussion in
this Committee, as to whether we change that. But I guess my
point is, have you got the resources you need to be able to
handle the claims?
When I ask about North Carolina--I happen to be that
Winston Salem connection, as you know--North Carolina is now
the No. 1 spot for military retirees in the country, enough so
that we have nine new clinics at least targeted. Given the
trend, I know we are going to need them.
Given your trend of increases in claims, I guess my
question is simple: Are we asking for everything we need to be
able to handle something that is not going to change short
term, and probably not going to change long term, given what we
know today?
Adm. Copper. My answer is that we are going through the
process right now to figure out what resources are needed. I am
working with the Secretary. I do not have a specific answer.
Obviously, if you increase claims 5 percent every year, and
if I am going to review lots of records, as required by the IG
report, then I think it is pretty obvious that I am going to be
stretched pretty thin.
I would like to say that, we have very good people, and we
hold them to good standards of accountability. I am sorry
Senator Rockefeller isn't here because, at my confirmation he
said, ``Well, what are you going to do if people don't carry
out this plan that you say you are proposing?'' And I responded
that I would allow them to broaden their horizons and find jobs
somewhere else. And we have in fact in a couple of cases done
that.
I think we have done many things to ensure that we operate
as efficiently as we can, and continue to look at what more we
can do. BDD being a primary example. We are also looking at
consolidation of some activities that will help us be more
efficient.
Senator Burr. And the one thing that I would like to stress
on you and those individuals involved is that there is
somebody, if not multiple people, in our offices that lives
each one of these claims with each one of these veterans. Some
are handled quickly, and we are heroes. Some are a little more
difficult and, because of the good people you have and the good
people we have, we find some resolution to it, and all parties
are happy.
You know, the only ones that are troubling are the ones
that you can't seem to resolve. I know that has to be
frustrating for you, but it is extremely frustrating for us.
And I don't think that we can touch the frustration level of
the veteran. That process that may go from BVA to the appeals
management center, only to never be heard from again.
I have one that my staff shared with me this morning that
has been at the appeals management center since the mid-part of
2003. Now, I don't know whether that is a process problem; I
don't know whether it is the intricacies of the case. But that
is an impossible thing to explain for 2 years.
Adm. Copper. And I would say our goal is to treat every
veteran as an individual. I emphasize to my people that we must
treat each and every veteran individually.
I would like you to give me the name, and I will find out
the status of the claim.
On the other hand, we have to remember that every claim and
every issue is not necessarily satisfactorily resolved, because
there are differences of opinion. It may be that we cannot tie
a particular ailment to service. We always have to have a
nexus, a connection to something that happened in service or
got worse while that individual was in the service.
Sometimes when I hear about a case that went to a regional
office and they said ``No'' on that issue, and then the DRO
said ``No'' on the issue, and a third time we said ``No,'' and
then we sent it to BVA and they said ``No,'' somewhere in there
I have to think maybe the claim was not a valid claim, for
whatever reason. This is a difficult, complex process and we
will continue to do everything we can to do it right.
Senator Burr. And I can only speak for myself, but let me
assure you that the individuals that are denied are usually the
ones that my staff asked me to call.
Adm. Copper. Yes, sir.
Senator Burr. So they talk to us after they have talked to
you. We are the ones that try to explain that there is a point
in time where everything has been exhausted. So we are not
disconnected from the stress or the emotion of what these
individuals go through.
I had one last question, but I am going to give it to you
in the form of a suggestion.
Adm. Copper. Yes, sir.
Senator Burr. And that is, I know you have got to get back
to us on staffing and on funding. But let's make sure that
those claims officers have the training, have the continual
education that they need to deliver that constituency accurate
decisions.
I think there can be a tendency to bring good people in and
not to allow them to continue to grow, because we either, don't
provide the educationm or the training, or we just don't
provide the time for them to take advantage of the education
and training. And I think when you look at every successful
model around, you find if that is eliminated your level of
success continues to decline.
Adm. Copper. I absolutely agree.
Senator Burr. I thank you for being here today.
Adm. Copper. Thank you.
Senator Burr. Thank you, Mr. Chairman.
Chairman Craig. Thank you, Richard.
Admiral, I asked you the question about today's soon-to-be
or are-now-just veterans coming out, and you said they move to
the front of the line. What happens if it is 6 months or 7
months out when they decide they have a problem and they apply
to the VA for assistance?
Adm. Copper. I think they would fall in line with everybody
else at that point. I would like to comment further.
Chairman Craig. Yes.
Adm. Copper. We have really increased outreach. That is one
of the things we are using some of our people for, to reach out
to these people at the National Guard centers and at the
Reserve centers. We have 57 regional offices and I have told
them that they have to be in contact with these centers so
that, when the people come back, we are there to tell them all
about the benefits that are available and how to apply for
them, and encourage them if they think they have a problem.
Chairman Craig. OK. The IG's report also found a 107
percent increase over the past 6 years in the so-called
``individual unemployability claims.'' What accounts for the
increase in these claims?
Adm. Copper. I honestly can't tell you what accounts for
it. These are people who must have a certain degree of
disability. If they cannot be employed because of their
disability, then they can get IU. That is one of the things
that we have to look at, to ensure that in some places we have
not gotten careless in our allowing IU. That is one of the
things I have to do in the review that we are going to do.
I cannot tell you why it would increase, unless we have
gotten a little bit careless and therefore it has been seen as
a thing that could be done and would benefit the veteran.
Chairman Craig. Does an employment specialist who works
with the individuals with disability make the determination as
to IU?
Adm. Copper. No, sir. No, sir.
Chairman Craig. How is that made?
Adm. Copper. The employment specialist works in the
Vocational Rehabilitation and Employment Service. The
employment specialist works with the veteran to help him or her
find employment suitable to their condition.
Now, let me give you an interesting fact that I learned
this morning. Over the last year, about 7,000 veterans who were
in the Vocational Rehabilitation program withdrew voluntarily.
Maybe they got a job other than the one they were being trained
for. Maybe they wanted to do something else. About 400 of them
had gotten IU and then withdrew from the program.
We are trying to see if people might withdraw from this voc
rehab program because they have been granted IU. But I think
that number, 400 out of 7,000 or so shows that there were many
more who continued on in the voc rehab program.
Mr. Epley. If I could add?
Chairman Craig. Mr. Epley.
Mr. Epley. In addition to that, we have asked our
disability compensation program staff to sit down and work more
closely with the vocational rehabilitation staff, to address
that very issue, Mr. Chairman; to make sure that, as a rating
specialist in the disability program, the specialist is
considering individual unemployability, based on records that
show they may not be able to sustain employment, that we will
make referral and have discussions with the vocational staff at
the same time.
Chairman Craig. OK. We talk about the 800,000 claims from
veterans this year. How many disabilities within those claims
will require a VA decision?
Adm. Copper. Every single one of them.
Chairman Craig. Is the trend of disabilities filed per
claim increasing?
Adm. Copper. Absolutely. For example, several years ago,
somebody figured it to be somewhere between 2.0 and 2.5 issues
per claim. It looks to me that our average is now closer to
four issues per claim.
The data from the benefits delivery at discharge sites is
even more startling. Last week I became aware that, for all of
the BDD claims that have gone to Salt Lake City in the last 6
months, the average number of issues is 10.2. These are people
retiring and people being discharged from the service.
Chairman Craig. So what can I draw from that? Is that
800,000 number a true measure of your workload? Or is that a
measurement of the number of claims? That does not therefore
represent individuals?
Adm. Copper. That is correct.
Chairman Craig. Is that correct?
Adm. Copper. It represents individuals. It doesn't
represent the true work----
Chairman Craig. All right.
Adm. Cooper [continuing]. Because each individual will have
``X''-number of issues, and each issue has to be adjudicated
with a concomitant medical exam and gathered of information. So
I would like to be able to measure my workload based on the
number of issues that we are adjudicating rather than the
number of individual veterans' claim.
If a veteran claims five disabilities, and we say ``Yes''
on two of them and ``No'' on three of them have we favorably
considered the claim, or have we negatively considered the
claim? There are lots of ramifications depending on how you
answer this.
We expect 800,000 claims to come in this year. Right now
our pending workload is just under 340,000. I think, a standard
inventory on hand should be about 250,000. I think 250,000 is a
good inventory for the number of people I have. The ``backlog''
I consider the amount above the 250,000--or currently, 80,000
to 90,000. That is what I am trying to eliminate.
I think we would have a better handle on the actual
workload if we counted issues. And I don't know quite how to do
that yet, but I hope to do that sometime during my tenure at
VA.
Chairman Craig. Thank you.
Senator Akaka, additional questions?
Senator Akaka. Thank you, Mr. Chairman. The Government
Accountability Office recommended that the Secretary develop a
plan to be included in the Department of Veterans' Affairs
annual performance plan, that describes how VA intends to use
data from the Rating Board Automation 2000.
GAO also recommended that VA conduct studies of impairments
for which RBA 2000 data reveal inconsistencies among VA
regional offices. GAO states that one year of RBA 2000 data
would suffice before conducting this study.
Admiral, can you please tell the Committee if the Secretary
has developed such a plan?
Adm. Copper. We have a plan. RBA 2000 is one of our IT
systems that has been under development for the last 3 years.
About 6 months ago, I said that from now on, everybody will use
RBA 2000 to adjudicate a claim. So we are all now using it.
GAO feels that we have no effective way to measure
consistency. However, we feel with the extra capability of RBA
2000, we can better determine how to assess consistency, and
will.
We are working the plan now. We still have to gather a good
bit of data before I can determine just how well we are doing.
But, yes, we are proceeding down that road.
Senator Akaka. According to the recent VA Inspector General
report, veterans who are represented by a veterans service
organization receive an average of $6,225 more in compensation
per year than those without representation. What can we do to
ensure that all veterans submitting a disability claim receive
appropriate compensation, regardless of whether they have
representation or not?
Adm. Copper. We absolutely should do that. But, let me say
first that I believe we are talking about figures over a period
of 50 to 60 years. I think when we consider just the last
couple of years, the difference is about $1,700.
I would say to you, we have very competent VSOs out there,
and obviously they know the system very well. And if the
veteran has a valid claim, they will help that veteran get all
the records and evidence that he needs to help us adjudicate
the claim. It is not that we don't want to do everything we can
for the veteran, and we are required by the VCAA law to do so.
But veterans service organizations are extremely competent and
good in helping the veteran understand what needs to be done.
My personal goal is to continue to work very closely with
VSOs and ensure that we do give the veteran everything that he
deserves.
Senator Akaka. Admiral, can you explain BVA and its system
for docketing cases? I can understand that BVA generally
decides appeals in the order in which they are received from VA
regional offices. When a case is received from a regional
office, it is given a docket number.
If that case is later appealed to the Court of Appeals for
Veterans' Claims and remanded back to the BVA, it appears that
BVA issues a new docket number, and that veteran goes to the
back of the line at BVA, rather than retaining its earlier
docket number and receiving near immediate review. This can add
as much as 3 to 5 years to the veteran's claim being resolved.
My question to you is, do you support remanded cases
retaining their original docket numbers in order to reduce
lengthy waits for final decisions?
Adm. Copper. Senator, I would like to ask my friend, Mr.
Garvin, to address that question from BVA.
Mr. Garvin. Yes, sir. And there is a procedure, when a case
is remanded back to the Board, where a motion may be entered to
have that case retain its original docket number. And perhaps
what we need to look at is our educational program, so that we
ensure that both the applicants and the VSOs are aware of that.
Senator Akaka. Well, I want to thank Mr. Garvin and Mr.
Epley for their responses, and especially Admiral Cooper. Thank
you very much.
Adm. Copper. Thank you, sir.
Chairman Craig. Danny, thank you.
Richard, do you have any further questions?
Senator Burr. Mr. Chairman, just one, with Mr. Garvin's
last answer. Why would it get a new number? Take for granted
all of them get new numbers if they are coming back through the
system, if there is an appeal, a further appeal? Is that what
you are saying?
Mr. Garvin. When a case comes to the Board, it is assigned
a docket number. And it is assigned a docket number in
accordance with when it is certified ready for the Board to
take action on the appeal.
Senator Burr. Is there anybody that wouldn't want their
concern heard quickly?
Mr. Garvin. I doubt it.
Senator Burr. But not all of them request the current
docket number to remain?
Mr. Garvin. That is correct. We will take a look at that.
Senator Burr. Thank you.
Mr. Garvin. Yes, sir.
Chairman Craig. Admiral, thank you very much. Mr. Epley,
Mr. Garvin, thank you for your testimony.
Adm. Copper. Thank you.
Chairman Craig. Before you leave, a bit of admonishment, if
I can, and it is about the 48-hour rule on testimony that we
are striving to achieve with all of you. And I say that because
the agency was notified of this hearing more than 3 weeks ago,
and the Secretary received notice 2 weeks ago. Your testimony
arrived last night at 5:45. It is very difficult at that point
for my staff to effectively review it and prepare us for the
hearing held this afternoon. They spent into the night, working
on that testimony.
So I guess I am sending what I hope is a clear message.
Because we will have a good many more hearings over the course
of the next couple of years, working cooperatively with you and
other divisions of the Veterans' Affairs, to respond to our
veterans. And timeliness is critical and important for us to be
effective and to prepare. And I would hope you would take that
back with you, Admiral, to your colleagues.
Adm. Copper. I sincerely apologize.
Chairman Craig. Thank you. Thank you very much for being
here.
Now let me invite our second panel forward, please. The
Committee has looked forward to this panel, because it presents
us with a broad array of experience in the area that we are
focusing on today.
And first, we will lead with the Honorable Kenneth B.
Kramer, former Chief Judge for the U.S. Court of Appeals for
Veterans' Claims, and a former colleague of mine in the U.S.
House a good number of years ago.
Judge Kramer, we are pleased to have you before the
Committee. Please proceed.
STATEMENT OF HON. KENNETH B. KRAMER, FORMER CHIEF JUDGE, U.S.
COURT OF APPEALS FOR VETERANS CLAIMS
Mr. Kramer. Mr. Chairman, Ranking Member Akaka, Senator
Burr, it is an honor for me to be here with some old friends.
Senator Akaka, I brought my wife here, who was born in Hawaii,
for assistance, so I may call on her if I get in trouble.
My testimony is going to be centered around my personal
observations as a judge for 15 years. I didn't do a huge amount
of research, and I don't have a lot of statistics. It is just
things that have been embedded in my mind over the years. And I
want to make it clear that I speak only for myself, and not for
the court.
I have three major recommendations that I am going to make
to fix one of the largest, if not the largest problem of all,
as I see it in the adjudication system. And that is the
constant, never-ending cycle of remands back and forth, passing
of papers, among four levels of decisionmakers. These levels
are the regional office; the Board of Veterans' Appeals; our
court, which is the U.S. Court of Appeals for Veterans' Claims;
and another Federal appellate court, the U.S. Court of Appeals
for the Federal Circuit.
What I am going to suggest are not perfect solutions. But I
see them as possible starting points to addressing the backlog
problem.
My first suggestion is very specific. And that is to amend
38 U.S.C. Sec. 5103A(2)(d)(B)--to make it crystal clear when a
claimant is entitled to a VA medical opinion, which will
address the causative relationship between present disability
and military service.
This issue is by far the most critical in most compensation
and cause of death cases. And I believe that obtaining such an
opinion at the earliest possible time will save huge amounts of
work, litigation, and time.
I would suggest that the Committee consider providing for
such an opinion when the following factors are present: there
is evidence of both present disability or death and a possible
causative event in service; there has been a denial of the
claim based on no nexus evidence; and a notice of disagreement
has been filed to this denial.
My second and third recommendations are a little more
systemic and a little more general. I believe that the time has
come to decentralize high-level VA decisionmaking, so as to
require a formal administrative law decision at the RO level--
that is, the local level--before an appeal can ever be brought
to the Board, and then only after a claimant has gone back to
the administrative law judge with a proper motion either
averring specific errors in that administrative law judge
decision, or showing that the claimant can offer evidence that
might affect the result.
Before rendering an initial decision, the ALJ would be
required to ensure that VA's duty to assist has been carried
out. If the initial decision was adverse, the claimant would be
permitted to hire counsel to file the motion with the ALJ or,
if that failed, to appeal to the Board. That appeal also would
have to specify specific errors in the ALJ decision, not just a
general disagreement with the result, as is presently the case
today.
My third recommendation goes solely only to judicial
review. I believe that independent judicial review has made a
huge difference in the quality of VA decisionmaking. Now
decisions are based on evidence of record, and they must be
analyzed. And the decisions that the VA produces are far better
today than they were when I first became a judge.
That said, I believe, personally, that judicial review is a
real part of the problem in finalizing claims. Under existing
law, there are four levels--four--of possible appellate appeal:
an administrative appeal to the Board, to the BVA; and three
levels of judicial appeal, to our court, to the Federal
Circuit, and possibly to the Supreme Court.
I recommend that the Federal Circuit be removed from this
process. Our court is the real expert in veterans law, not
because the caliber of its people are better in any way than
the Federal Circuit, which has the highest quality of people,
but simply because the work of our court is full-time in the
veterans area; while the Federal Circuit's work is part-time,
its main thrust being intellectual property law.
The Federal Circuit was originally put into the process
when the court was created because of fears that the veterans
court, as an Article I court, might be captured by its
constituents, and that Article III review by the Federal
Circuit would ensure that didn't happen.
With 15 years of decisionmaking under the belt, those
fears, I believe, have never materialized. Although one could
argue that it is good to give a party which has lost at the
court, my court--and that is either a claimant or the
Government--one more bite at the apple, the further delay--
which means about 2 more years of time before the Federal
Circuit will render an opinion and, if that case is remanded
back to our court, at least an additional year of time--and the
confusion that results from inconsistent court decisions,
simply provides more justice than the system can bear. I truly
believe that justice delayed is justice denied.
The organic law of the only other Article I appellate
court, the U.S. Court of Appeals for the Armed Forces, has
provided for direct appeal from it to the Supreme Court for
more than half a century.
I further recommend that our court's organic law be
changed, so that where a fully-developed evidentiary record
clearly reflects entitlement to a benefit or clearly reflects a
claimant's inability to succeed, in spite of otherwise
remandable BVA error, that the court should end the matter with
either a benefit award or an affirmance based on non-
prejudicial BVA error.
Thank you for the opportunity to be heard. If I can be of
further assistance in providing our veterans with the best
justice system possible, I stand ready to help in any way I
can.
[The prepared statement of Mr. Kramer follows:]
Prepared Statement Hon. Kenneth B. Kramer, Former Chief Judge,
U.S. Court of Appeals for Veterans Claims
Mr. Chairman, Ranking Member Akaka, and Members of the Committee:
It is an honor to be asked to provide my thoughts as to how the VA
claims adjudication and appeal process might be able to provide more
timely and accurate decisions. My suggestions are based upon my
personal observations growing out of a career in which I have had the
privilege of serving first in the military and then as a civilian in
all three branches of the Federal Government. The last 15 years of my
service was as a Judge of the U.S. Court of Appeals for Veterans'
Claims (Court), the last four of which was as Chief Judge, the position
from which I retired last fall.
As preliminary matters, I want to make sure that it is understood
that I speak only for myself, not for the Court, and that my remarks
are not in any way meant to be critical of any individual or
institution but only directed to what I see are systemic problems that
no individual or institution could remedy without statutory changes. I
also want to make sure that it is understood that I do not pretend to
offer perfect solutions, only starting points to fixing the major
problem as I see it--the almost never-ending cycles of both Board of
Veterans' Appeals (BVA) and Court ordered remands in far too many
cases. These remands clog the system and prevent timely justice for all
claimants, those who are trapped in the remands themselves and those
who wait for those who are trapped. Lastly, I congratulate the
Committee for its willingness to begin to take on the challenge of
changing a system that has already been the subject of significant
study and its recognition that, despite that study, the system is still
plagued by backlog and delay and the frustration that accompany them.
Making major changes will not be easy--there will be opposition from
those feeling threatened by new ways of doing business, but I believe
that, if all the stakeholders are permitted to participate actively in
crafting these changes, they can happen.
I have three major recommendations, the first of which would affect
both the administrative and judicial processes, the second of which
would affect primarily the former, and the third of which would affect
primarily the latter.
1. Despite the controversy and resources expended over the former
requirement of a claimant having to present a well-grounded claim
before being entitled to the VA-provided duty to assist, and despite
the controversy and resources already expended in the purported fixing
of the problem, it appears that little has changed regarding what is,
in most cases, the major need for such a duty: That is, to provide a
thorough medical opinion as to the causative relationship between
present disability and military service. Indeed, it appears that 38
U.S.C. Sec. 5103A(d)(2)(B), in essence, reimposes a well-grounding
requirement to obtain such an opinion. To avoid much future litigation
and future cycles of both BVA and Court ordered remands, this provision
should be clarified.
Where causation is at issue, I believe that obtaining a medical
opinion on this issue at the earliest possible time in the claims
process would likewise result in much earlier finalization. One
approach could be that once there is evidence of both present
disability and a possible event in service, a claimant would be
entitled to such an opinion.
Needless to say, this would put a heavy burden on VA, but I would
be hopeful that both cost and emotional savings from early resolutions,
would offset the expenditures and reorganization that such a change
would require. One possible quick fix would be for every VA physician
treating a new condition to fill out a standard form addressing
causation including possible comment on the need for the consideration
of additional documentation prior to rendering an opinion.
2. I have seen too many claims that have remained in the VA
administrative system despite the passage of more than a decade. Many
of these are caught in a cycle of remands between a VA regional office
(RO) and the BVA and the confusion and bureaucracy that is created by
the back and forth transmission of documents. And many times the
claimants are themselves part of the problem by continuously sending in
more and more papers that in turn result in delay and frequently new
adjudications.
In my view, in keeping with the theme expressed in my preceding
recommendation, the adjudicative objective should be to finalize as
many claims as possible at the RO level. In order better to achieve
this objective, I also recommend that Administrative Law Judges (ALJs)
or, at a minimum, Veterans Law Judges (VLJs), working at the final
stage of RO adjudication where there is claimant disagreement, should
insure that all necessary development has taken place and that, in the
event of such a judge's continuing denial, should prepare, in lieu of a
Statement of the Case, a decision as thorough as one now prepared by
the BVA. In essence, what is being suggested is to decentralize high
level administrative decisionmaking. (I would also note that the VA
itself has taken initial steps in this direction by implementing a
voluntary Decision Review Officer program staffed by more experienced
adjudicators.)
Once such a decision was rendered, only formal motions that
specified and articulated errors in the decision or made offers of
proof would be accepted by the ALJ or VLJ. In such event, claimants
would be permitted to hire counsel, if they chose to do so, to file
such motions. Under present law, counsel may only be retained after an
adverse BVA decision. Some will oppose such a change as upsetting the
non-adversarial agency process, which in my mind is illusory once you
have said ``no'' to a claimant. Permitting such a motion prior to an
appeal to the BVA would allow for additional building of the
evidentiary record often critical to success. Only after the
prerequisite motion had been filed and a response from the ALJ/VLJ
resulted in continuing denial would an appeal to the BVA be allowed. At
this point, the record would be closed and no further evidentiary
submissions could be made.
The approach suggested here will likely require many more ALJs or
VLJs than the number of VLJs presently at the Board. Some will come
from the present Board but others will have to be hired along with
staff. Thus, as with the additional expenditures and reorganization of
the medical side of the house likely needed for the implementation of
my first recommendation, this recommendation also will carry with it
additional expenditures and the need for reorganization of the
adjudicative side of the house. Nevertheless, it is possible that here,
too, overall savings will result by removing vast amounts of paper and
vast numbers of the adjudicative hours required by the present system.
3. I am a big believer in the success of independent judicial
review. It has caused VA decisionmaking to be light years ahead of
where it was before such review by requiring that decisions be based on
the real evidence and hard analysis, often previously missing. The
bottom line is that judicial review has done much to bring about
accurate decisions and helped insure fairness to our nation's veterans.
That said, judicial review has done little, if anything, to improve
timeliness and, indeed, viewed objectively, can be seen as a real part
of the problem. In the worst case, which happens more than
occasionally, a veteran dies, leaving a case unresolved. Just as the
administrative process itself is involved in the ever-revolving RO-BVA
two-step, judicial review turns that two-step into a four-step, adding
on additional years to the process with a cycle of remands between the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the
Court and between the Court and the BVA. As to the latter, I myself
have seen too many cases come back to the Court after two previous
Court remands to the BVA and the passage of nearly a decade since the
initial appeal to the Court was first brought. As to the former, an
appeal to the Federal Circuit from the Court often carries with it 2
more years of the claimant's life; and in the event of a Federal
Circuit remand back to the Court, I would estimate that another year
can be added on, to say nothing of the additional years that will be
involved if the Court in turn remands the case back to the BVA.
Under existing law, there are four levels of possible appeal--one
administrative appeal to the BVA and three levels of judicial
involvement: The Court, the Federal Circuit, and the Supreme Court.
Stated simply, this is more ``justice'' than the system can properly
bear. Indeed, justice delayed is justice denied and the timeliness
problem cannot be fixed without reforming the judicial process.
There is no compelling reason to have so many layers of judicial
review. The only fathomable argument in support is that the party who
has lost at the Court will have one more opportunity to demonstrate the
rightness of that party's view. Although there is no question that the
Court does make mistakes and is not omniscient, the same is true of the
Federal Circuit. Indeed, the Court has far greater expertise in
veterans' law. This capability is an outgrowth of nothing more
complicated than the fact that this subject is the Court's sole
business, while it is only a part-time focus of the Federal Circuit.
Moreover, the reality of confusion over conflicting judicial decisions
is directly proportionate to the number of judicial bodies involved in
the process.
In my view, the best fix would be to make the Court, in all
respects, the final arbiter of veterans' law, short of the Supreme
Court to which appeals still, of course, should be allowed. Moreover,
to provide for greater finality and fewer remands to the BVA, I would
change the Court's organic law to clarify the Court's power to review
BVA benefit-of-the-doubt determinations. Where a fully developed
evidentiary record clearly reflects entitlement to a benefit or clearly
reflects a claimant's inability to succeed, the Court, in spite of
otherwise remandable BVA error, should end the matter, either
respectively, with an award of a benefit or an affirmance based on non-
prejudicial error.
The other possible approach to eliminating layers of judicial
review would be to merge the Court into the Federal Circuit. The
Federal Circuit's history itself reflects one of merger and spin-off.
Such a merger would give the Federal Circuit a much bigger diet of
veterans cases, thereby increasing its expertise. And it would provide
for Article III decisionmaking, the very reason that the Federal
Circuit was originally put into the process. Despite these
considerations, it is my view, with 15 years of history behind the
Court, that the preferable course of action would be to eliminate
Federal Circuit review. First, I think it is preferable to have
judicial review exclusively focused on veterans' cases. Second, even
with an added focus on such cases, the Federal Circuit's primary focus
will remain with intellectual property matters, the compelling reason
for its own creation. At this juncture, I would think that few
proponents still remain of the need for Article III review, short of
the Supreme Court, of veterans cases. The Court's history shows that
the threat of its being captured by its constituents has never
materialized.
Lastly, the model of Article I court review being the final stop
before review to the Supreme Court has been in place for half a
century. Indeed, appeals from the only other Article I appellate
court--The U.S. Court of Appeals for the Armed Forces--are brought
directly to the Supreme Court.
Thank you for the opportunity to be heard. If I can be of further
assistance in providing our veterans with the best justice system
possible, I stand ready to help in any way that I can.
Chairman Craig. Judge Kramer, thank you very much for that
testimony.
Now, let's turn to Cynthia Bascetta, Director, Education,
Workforce, and Income Security, Government Accountability
Office. Cynthia, please proceed.
STATEMENT OF CYNTHIA BASCETTA, DIRECTOR, EDUCATION, WORKFORCE,
AND INCOME SECURITY, GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Bascetta. Thank you, Mr. Chairman, other Committee
members. We appreciate the opportunity to be here today to
share our views on VA's performance in processing compensation
and pension claims.
VA provided almost $30 billion in cash disability benefits
to more than 3.4 million veterans and their survivors in fiscal
year 2004. As you know, for years the claims process has been
the subject of concern and numerous studies, mostly focused on
persistently long waits for decisions, large backlogs, and
inaccurate decisions.
We believe these longstanding concerns, coupled with the
need to modernize Federal disability programs, support GAO's
decision to designate VA disability programs as a high risk
area.
My comments today draw from numerous GAO reports and
testimonies on this topic. To update our work, we reviewed
recent claims processing performance data, VA's fiscal year
2006 budget justification and its 2004 performance and
accountability report. After briefly addressing the current
state of the disability claims process, I would like to focus
on factors that we believe impede VA's ability to improve its
performance.
The bottom line, as we have all been discussing, is that VA
continues to experience claims processing problems
characterized by a large number of pending claims and lengthy
processing times. VA did make considerable progress in reducing
the size and age of its inventory through fiscal year 2003, but
it has recently lost some ground.
Pending claims for example, have increased from 254,000 at
the end of fiscal year 2003, to 340,000 by the end of this
March. This is about 50,000 cases more than their goal of
290,000 cases for fiscal year 2005. More importantly, claims
pending over 6 months, an indicator of a growing backlog, have
increased more than 60 percent during the same period.
VA has also reduced the average age of its pending claims
from 182 days at the end of fiscal year 2001, to 111 at the end
of fiscal year 2003. But the trend is slightly upward, to 119
days at the end of this March. This is far from VA's strategic
goal of 78 days by the end of fiscal year 2008.
VA's reported performance on accuracy is better: 87 percent
of claims were decided accurately in fiscal year 2004, close to
its goal of 90 percent. But despite improvements in accuracy,
consistency remains a significant problem.
To ensure that similarly situated veterans who submit
claims in different regional offices for similar conditions
receive reasonably consistent decisions, we recommended in
August 2002, and again in November 2004, that VA undertake
systematic review of the consistency of its decisions. Just
last Thursday, the IG published the first study of disparities
in average payments between States, which was initiated by the
Secretary following the adverse publicity at the end of last
year.
Our work also shows that program design and other aspects
of the current system may constrain how much VBA can improve
its performance, especially in the timeliness dimension. First,
as you have heard, the law and court decisions, which have
tended to protect veterans' rights and expand their entitlement
to benefits, have at the same time adversely affected VBA's
workload.
For example, presumptive eligibility for certain benefits
has increased the volume of claims, and certain court decisions
have added administrative complexity to the decisionmaking
process. In addition, veterans are filing claims at a growing
rate, as Admiral Cooper testified. And VA reports that the
number of disabilities per claims is also increasing,
compounding the complexity of the decisions they need to make.
Second, we reported that VBA will need to rely on
productivity improvements to achieve its claims processing
goals. VA assumes a 16 percent increase in rating related
claims decided per FTE this year. However, based on available
information, we believe it is unclear whether this is an
achievable goal.
Third, program design may limit performance improvements in
both timeliness and consistency. For example, timeliness is
affected by the overall size of the workload, which consists
mainly of claims filed for increases in disability ratings.
Most of these claims are for veterans who have less severe
disabilities.
We and others believe that consistency could be improved by
consolidating regional offices. In fact, in 1995, VA listed
more complete claims development and improved accuracy and
consistency of decisions among the potential benefits of
consolidation.
To sum up, the system we have today has evolved over
several decades. Like other Federal disability programs, VA
needs to modernize, and faces persistent and perhaps
intractable problems improving timeliness and consistency.
Tackling these issues will be critical to assuring that VA's
disability programs meet the needs of 21st century veterans.
In addition, we believe that more fundamental reform, while
a daunting task, presents an opportunity to achieve more than
incremental gains in performance of VA's disability programs.
That concludes my remarks.
[The prepared statement of Ms. Bascetta follows:]
Prepared Statement of Cynthia Bascetta, Director, Education, Workforce,
and Income Security, Government Accountability Office
Mr. Chairman and Members of the Committee:
I am pleased to be here today to discuss claims processing issues
in the Department of Veterans Affairs' (VA) disability compensation and
pension programs. Through these programs, VA provided almost $30
billion in cash disability benefits to more than 3.4 million veterans
and their survivors in fiscal year 2004. For years, the claims process
has been the subject of concern and attention within VA and by the
Congress and veterans service organizations. Many of their concerns
have focused on long waits for decisions, large claims backlogs, and
inaccurate decisions. Our work and recent media reports of significant
discrepancies in average disability payments from State to State has
also highlighted concerns over the consistency of decisionmaking within
VA. In January 2003, we designated modernizing Federal disability
programs as a high-risk area, in part because of VA's continuing
challenges to improving the timeliness and consistency of its
disability decisions.
You asked us to discuss the current state of VA's disability claims
process and factors that may impede VA's ability to improve
performance. My testimony today draws on numerous GAO reports and
testimonies on VA's compensation and pension claims-processing
operations. (See related GAO products.) To update our work, we reviewed
recent claims processing performance data, VA's fiscal year 2006 budget
justification, and VA's fiscal year 2004 Performance and Accountability
Report. We did not perform independent verification of VA's data. We
conducted our work in May 2005 in accordance with generally accepted
government auditing standards.
In summary, VA continues to have disability claims processing
problems. For example, as of the end of March 2005, rating-related
claims \1\ were pending an average of 119 days, 8 days more than at the
end of fiscal year 2003, and far from its strategic goal of 78 days.
During the same period, the rating-related inventory grew by about
86,000 claims to a total of about 340,000 claims. While VA has improved
the accuracy of its decisions to 87 percent in fiscal year 2004, it is
still below its strategic goal of 96 percent in fiscal year 2008.
Further, we have identified concerns about the consistency of decisions
across VA's regional offices. VA has begun studying one indicator of
inconsistency, the wide variations in average payments per veteran from
State to State, in response to adverse media coverage.
We identified factors that may impede VA's ability to improve its
disability claims processing performance. The impacts of laws, court
decisions, and the filing behavior of veterans can significantly affect
VA's ability to decide claims, as well as the volume of claims
received. Also, VA's ability to improve the productivity of its claims
processing staff may affect its ability to improve performance. More
dramatic gains in timeliness and inventory reduction might require
fundamental changes in the design and operations of VA's disability
programs.
background
VA's disability compensation program pays monthly benefits to
veterans with service-connected disabilities (injuries or diseases
incurred or aggravated while on active military duty) according to the
severity of the disability. Also, VA pays dependency and indemnity
compensation to some deceased veterans' spouses, children, and parents
and to survivors of service members who died on active duty. The
pension program pays monthly benefits based on financial need to
wartime veterans who have low incomes, served in a period of war, and
are permanently and totally disabled for reasons not service-connected
(or are aged 65 or older). VA also pays pensions to surviving spouses
and unmarried children of deceased wartime veterans.
When a veteran submits a claim to any of VA's 57 regional offices,
a veterans' service representative (VSR) is responsible for obtaining
the relevant evidence to evaluate the claim. Such evidence includes
veterans' military service records, medical examinations and treatment
records from VA medical facilities, and treatment records from private
medical service providers. Once a claim is developed (i.e., has all the
necessary evidence), a rating VSR, also called a rating specialist,
evaluates the claim and determines whether the claimant is eligible for
benefits. If the veteran is eligible for disability compensation, the
rating specialist assigns a percentage rating based on degree of
disability. Veterans with multiple service-connected disabilities
receive a single composite rating. For veterans claiming pension
eligibility, the regional office determines if the veteran served in a
period of war, is permanently and totally disabled for reasons not
service-connected (or is aged 65 or older), and meets the income
thresholds for eligibility. A veteran who disagrees with the regional
office's decision for either program can appeal sequentially to VA's
Board of Veterans' Appeals (BVA), the U.S. Court of Appeals for
Veterans' Claims, and the U.S. Court of Appeals for the Federal
Circuit.
In January 2003, we designated modernizing VA's disability
programs, along with other Federal disability programs, as high-risk.
We did so, in part, because VA still experiences lengthy processing
times and lacks a clear understanding of the extent of possible
decision inconsistencies. We also designated VA's disability programs
as high-risk because our work over the past decade found that VA's
disability programs are based on concepts from the past. VA's
disability programs have not been updated to reflect the current state
of science, medicine, technology, and labor market conditions.
In November 2003, the Congress established the Veterans' Disability
Benefits Commission to study the appropriateness of VA disability
benefits, including disability criteria and benefit levels. The
commission held its first public hearing in May 2005.
problems in claims processing continue
VA continues to experience problems processing veterans' disability
compensation and pension claims. These include large numbers of pending
claims and lengthy processing times. While VA made progress in fiscal
years 2002 and 2003 in reducing the size and age of its inventory of
pending claims, it has lost some ground since the end of fiscal year
2003. As shown in figure 1, pending claims increased by about one-third
from the end of fiscal year 2003 to the end of March 2005, from about
254,000 to about 340,000. During the same period, claims pending over 6
months increased by about 61 percent from about 47,000 to about 75,000.
Figure 1. Rating-Related Claims Pending at End of Period, Fiscal
Year 2000 through March 2005
Similarly, as shown in Figure 2, VA reduced the average age of its
pending claims from 182 days at the end of fiscal year 2001 to 111 days
at the end of fiscal year 2003. Since then, however, average days
pending have increased to 119 days at the end of March 2005. This is
also far from VA's strategic goal of an average of 78 days pending by
the end of fiscal year 2008. Meanwhile, the time required to resolve
appeals remains too long. While the average time to resolve an appeal
dropped from 731 days in fiscal year 2002 to 529 days in fiscal year
2004, close to its fiscal year 2004 goal of 520 days, but still far
from VA's strategic goal of 365 days by fiscal year 2008.
Figure 2. Average Days Pending for VA Compensation and Pension
Rating-
Related Claims, Fiscal Year 2000 Through March 2005
In addition to problems with timeliness of decisions, VA
acknowledges that the accuracy of regional office decisions needs to be
improved. While VA reports \2\ that it has improved the accuracy of
decisions on rating related claims from 81 percent in fiscal year 2002
to 87 percent in fiscal year 2004--close to its 2004 goal of 90
percent. However, it is still below its strategic goal of 96 percent in
fiscal year 2008.
VA also faces continuing questions about its ability to ensure that
veterans receive consistent decisions--that is, comparable decisions on
benefit entitlement and rating percentage--regardless of the regional
offices making the decisions. The issue of decisionmaking consistency
across VA is not new. In a May 2000 testimony \3\ before the
Subcommittee on Oversight and Investigations, Committee on Veterans'
Affairs, House of Representatives, we underscored the conclusion made
by the National Academy of Public Administration in 1997\4\ that VA
needed to study the consistency of decisions made by different regional
offices, identify the degree of subjectivity expected for various
medical issues, and then set consistency standards for those issues. In
August 2002, we drew attention to the fact that there are wide
disparities in State-to-State average compensation payments per
disabled veteran. We noted that such variation raises the question of
whether similarly situated veterans who submit claims to different
regional offices for similar conditions receive reasonably consistent
decisions.\5\ We concluded that VA needed to systematically assess
decisionmaking consistency to provide a foundation for identifying
acceptable levels of variation and to reduce variations found to be
unacceptable. Again, in November 2004, we highlighted the need for VA
to develop plans for studying consistency issues.\6\ VA concurred in
principle with our findings and recommendation in the August 2002
report and agreed that consistency is an important goal and
acknowledged that it has work to do to achieve it. However, VA was
silent on how it would evaluate and measure consistency. Subsequently,
VA concurred with our recommendation in the November 2004 report that
it conduct systematic reviews for possible decision inconsistencies.
In December 2004, the media drew attention to the wide variations
in the average disability compensation payment per veteran in the 50
States and published VA's own data showing that the average payments
varied from a low of $6,710 in Ohio to a high of $10,851 in New Mexico.
Reacting to these media reports, in December 2004, the Secretary
instructed the Inspector General to determine why average payments per
veteran vary widely from State to State.\7\ So, VA's Veterans Benefits
Administration began another study in March 2005 of three disabilities
believed to have potential for inconsistency: hearing loss, post-
traumatic stress disorder, and knee conditions. VA assigned 10 subject
matter experts to review 1,750 regional office decisions. After
completing its analysis of study data, VA plans to develop a schedule
for future studies of specific ratable conditions and recommend a
schedule for periodic follow-up studies of previously studied
conditions.
factors that may impede va's ability to improve claims
processing performance
Several factors may impede VA's ability to make, and sustain,
significant improvements in its claims processing performance. These
include the potential impacts of laws, court decisions, and the filing
behavior of veterans; VA's ability to improve claims processing
productivity; and program design and structure.
laws, court decisions, and filing behavior of veterans impact
workload performance
Recent history has shown that VA's workload and performance is
affected by several factors, including the impacts of laws and court
decisions expanding veterans' benefit entitlement and clarifying VA's
duty to assist veterans in the claims process, and the filing behavior
of veterans. These factors have affected the number of claims VA
received and decided. For example, court decisions in 1999 and 2003
related to VA's duty to assist veterans in developing their benefit
claims, as well as legislation in response to those decisions,
significantly affected VA's ability to produce rating-related
decisions. VA attributes some of the worsening of inventory level and
pending timeliness since the end of fiscal year 2003 to a September
2003 court decision that required over 62,000 claims to be deferred,
many for 90 days or longer. Also, VA notes that legislation and VA
regulations have expanded benefit entitlement and as a result added to
the volume of claims. For example, presumptions of service-connected
disabilities have been created in recent years for many Vietnam
veterans and former Prisoners of War. Also, VA expects additional
claims receipts based on the enactment of legislation allowing certain
military retirees to receive both military retirement pay and VA
disability compensation.
In addition, the filing behavior of veterans impacts VA's ability
to improve claims processing performance. VA continues to receive
increasing numbers of rating-related claims, from about 586,000 in
fiscal year 2000 to about 771,000 in fiscal year 2004. VA projects 3
percent increases in claims received in fiscal years 2005 and 2006. VA
notes that claims received are increasing in part because older
veterans are filing disability claims for the first time. Also,
according to VA, the complexity of claims, in terms of the numbers of
disabilities claimed, is increasing. Because each disability needs to
be evaluated, these claims can take longer to complete. VA plans to
develop baseline data on average issues per claim by the end of
calendar year 2005.
ability to improve productivity may affect future performance
improvements
In November 2004, we reported that to achieve its claims processing
performance goals in the face of increasing workloads and decreased
staffing levels, VA would have to rely on productivity improvements.\8\
However, its fiscal year 2005 budget justification did not provide
information on claims processing productivity or how much VA expected
to improve productivity. VA's fiscal year 2006 budget justification
provides information on actual and planned productivity, in terms of
rating-related claims decided per direct full-time equivalent (FTE)
employee, and identifies a number of initiatives that could improve
claims processing performance. These initiatives include technology
initiatives, such as Virtual VA, involving the creation of electronic
claims folders; consolidation of the processing of Benefits Delivery at
Discharge (BDD) claims at 2 regional offices; and collaboration with
the Department of Defense (DOD) to improve VA's ability to obtain
evidence, such as evidence of in-service stressors for veterans
claiming service-connected Post-Traumatic Stress Disorder.
It is still not clear whether VA will be able to achieve its
planned improvements. VA's fiscal year 2006 budget justification
assumes that it will increase the number of rating-related claims
completed per FTE from 94 in fiscal year 2004 to 109 in fiscal year
2005 and 2006, a 16-percent increase. For fiscal year 2005, this level
of productivity translates into VA completing almost 826,000 rating-
related decisions. Midway through fiscal year 2005 VA had completed
about 373,000 decisions.
program design and regional office structure may limit performance
improvements
Program design features and the regional office structure may
constrain the degree to which improvements can be made in performance.
For example, in 1996, the Veterans' Claims Adjudication Commission \9\
noted that most disability compensation claims are repeat claims--such
as claims for increased disability percentage--and most repeat claims
were from veterans with less severe disabilities. According to VA,
about 65 percent of veterans who began receiving disability
compensation in fiscal year 2003 had disabilities rated 30 percent or
less. The Commission questioned whether concentrating claims processing
resources on these claims, rather than on claims by more severely
disabled veterans, was consistent with program intent.
In addition to program design, external studies of VA's disability
claims process have identified the regional office structure as
disadvantageous to efficient operation. Specifically, in its January
1999 report, the Congressional Commission on Servicemembers and
Veterans Transition Assistance\10\ found that some regional offices
might be so small that their disproportionately large supervisory
overhead unnecessarily consumes personnel resources. Similarly, in its
1997 report, the National Academy of Public Administration found that
VA could close a large number of regional offices and achieve
significant savings in administrative overhead costs.
Apart from the issue of closing regional offices, the Commission
highlighted a need to consolidate disability claims processing into
fewer locations. VA has consolidated its education assistance and
housing loan guaranty programs into fewer than 10 locations, and the
Commission encouraged VA to take similar action in the disability
programs. In 1995 VA enumerated several potential benefits of such a
consolidation. These included allowing VA to assign the most
experienced and productive adjudication officers and directors to the
consolidated offices; facilitating increased specialization and as-
needed expert consultation in deciding complex cases; improving the
completeness of claims development, the accuracy and consistency of
rating decisions, and the clarity of decision explanations; improving
overall adjudication quality by increasing the pool of experience and
expertise in critical technical areas; and facilitating consistency in
decisionmaking through fewer consolidated claims-processing centers. VA
has already consolidated some of its pension workload (specifically,
income and eligibility verifications) at three regional offices. Also,
VA has consolidated at its Philadelphia regional office dependency and
indemnity compensation claims by survivors of servicemembers who died
on active duty, including those who died during Operation Enduring
Freedom and Operation Iraqi Freedom.
concluding observations
VA has had persistent problems in providing timely, accurate, and
consistent disability decisions to veterans and their families. To some
extent, program design features that protect the rights of veterans
have also increased the complexity of and length of time needed to
process their claims. In addition, expanding entitlements have
increased VA's workload as more veterans file claims. As a result,
major improvements in disability claims processing performance may be
difficult to achieve without more fundamental change. We have placed
VA's disability programs on our high-risk list along with other Federal
disability programs. Modernizing its programs would give VA the
opportunity to address many longstanding problems. At the same time, VA
could integrate any changes to disability criteria and benefit levels
that the Veterans' Disability Benefits Commission may propose. This is
important because significant changes in the benefits package and
disability criteria are major factors affecting VA's disability claims
process and its claims processing performance.
Mr. Chairman, this concludes my remarks. I would be happy to answer
any questions you or the Members of the Committee may have.
Chairman Craig. Cynthia, thank you very much.
Now, let's turn to Robert Chisholm, past President,
National Organization of Veterans' Advocates.
Robert.
STATEMENT OF ROBERT CHISHOLM, PAST PRESIDENT, NATIONAL
ORGANIZATION OF VETERANS' ADVOCATES
Mr. Chisholm. Thank you, Mr. Chairman and Members of the
Committee, for the opportunity to present the views of the
National Organization of Veterans' Advocates on the current
state of VA claims adjudication and, more particularly, the
appeals process.
For the past 14 years, I have been representing claimants
at all stages of the veterans benefits system that Chief Judge
Kramer just outlined; from the initial stages, right through to
appeals, to the Federal Circuit. My testimony is based on my
experiences, and members of NOVA's experiences, in this
process.
On pages 2 and 3 of my written testimony, I outline the
general appeals process, which has already been discussed here.
On average, from start to finish, it takes about 3 years.
Unfortunately, most of the claims I see take much longer than
that. With the average age of a veteran now approaching 58
years old, the problem is that many claimants do not survive
the protracted adjudicatory process. Those claimants that do
survive are fatigued and discouraged by interminable delays
before the VA. If a claimant then appeals a final Board
decision to the Court of Appeals for Veterans' Claims, it may
easily take another 12 to 18 months.
I would like to first discuss a number of problems that we
see in the VA claims adjudication process, and then outline a
couple of changes we would recommend.
First, there are no real deadlines imposed on the VA to
complete any steps in the adjudication of a claim. One famous
decision reported that the claim had been contested for more
than 7 years at that point. In another case, one of the
colleagues of Judge Kramer stated at oral argument that a 14-
year delay is not unknown.
The multi-step process to appeal a case is redundant and
unnecessarily complicated, because it imposes upon a veteran a
specific pleading requirement; namely, that the veteran must
assert an additional affirmative intent to seek appellate
review.
There are, too many cases; not enough staff. According to
the recent survey in the IG report of rating specialists and
decision review officers, the so-called ``front line'' at the
VA, 65 percent of them that answered stated that they had
insufficient staff to ensure timely and quality service. The
same survey reported that 57 percent believed it was too
difficult to meet production standards if they adequately
developed claims and thoroughly reviewed the evidence before
issuing a ratings decision.
The regional offices are not getting decisions right the
first time, and this results in claimants filing appeals to the
Board which are then remanded back to the regional office. Many
of these claimants are stuck on a proverbial hamster wheel for
years.
In my experience, those people then appeal their cases to
the court. And then the court, because of its limited
jurisdiction, remands those claims, as well; adding another
layer to that process.
The Board of Veterans' Appeals causes delay in the
adjudication of claims by failing to follow judicial precedent
and forcing veterans to appeal their claims to the court; and
by failing to handle claims expeditiously, as Congress intended
when it enacted the Veterans' Benefits Act of 2003.
The Appeals Management Center, in my opinion, has become a
parking lot for both court and BVA remanded cases. As of
October 2004, there were about 21,000 claims at the AMC, a
number far in excess of what was originally planned for the
AMC. As caseloads increase at the Appeals Management Center,
longer delays are inevitable.
NOVA's recommendations to alleviate some of these problems:
No. 1, we believe Congress should impose mandatory
timeframes for each step of the adjudication process. These
time limitations should be subjected to some limited extension
when the delay is clearly not caused on the part of the VA.
No. 2, we believe that one appeal from a denial by the
regional office should be all that is required that claimants
file two documents to obtain appellate review. Right now, you
need to file a notice of disagreement, and then a substantive
appeal. The claimant should not be required to appeal the
matter twice in order to bring the case before the Board.
No. 3, even though the VA has not asked for increased
staff, it seems that it is necessary, based upon the questions
asked to the first panel and based upon what was testified to
in the IG report.
No. 4, NOVA believes that the Board of Veterans' Appeals
should be replaced by independent administrative law judges, as
in the Social Security system. Alternatively, Congress should
consider decentralizing the Board of Veterans' Appeals, and
placing the veterans law judges at the regional offices.
And No. 5, this Committee should consider legislation
permitting a veteran to hire an attorney earlier in the
process. Presently, a veteran cannot retain counsel until after
the Board of Veterans' Appeals issues the first final decision
in a case. This is too late in the process for counsel to be
truly effective because, by the time, the Board makes a
decision on the claim, the record is effectively closed.
As the VA Inspector General's report has shown, the initial
adjudicators do not have enough time and staff to make timely
and quality decisions. The same report noted that it is not
possible for adjudicators to fully develop the claim and meet
production deadlines.
Attorneys would be helpful in obtaining, organizing, and
presenting records on behalf of the veteran to make sure the VA
processes the claim in a timely and accurate manner. An
amendment to 38 U.S.C. Sec. 5904 is necessary.
I would like to thank the Committee for this opportunity to
present this testimony, and those conclude my remarks. Thank
you.
[The prepared statement of Mr. Chisholm follows:]
Prepared Statement of Robert Chisholm, Past President, National
Organization of Veterans' Advocates
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to present the views of the National
Organization of Veterans' Advocates (``NOVA'') on the current state of
VA claims adjudication and the appeal process. NOVA is a not-for-profit
educational organization created under 26 U.S.C. Sec. 501(c)(3) for
attorneys and non-attorney practitioners who represent veterans,
surviving spouses, and dependents before the Court of Appeals for
Veterans' Claims (``CAVC'') and on remand before the Department of
Veterans' Affairs (``VA''). NOVA has written many amicus briefs on
behalf of claimants before the CAVC and the United States Court of
Appeals for the Federal Circuit (``Federal Circuit''). The CAVC
recognized NOVA's work on behalf of veterans when it awarded the Hart
T. Mankin Distinguished Service Award to NOVA in 2000. The positions
stated in this testimony have been approved by NOVA's board of
directors and represent the shared experiences of NOVA's members.
For the past 14 years I have been representing claimants at all
stages of the veteran's benefits system from the VA regional office to
the Board of Veterans' Appeals to the CAVC as well as before the
Federal Circuit. My testimony, which has been approved by NOVA's board
of directors, is based on my experiences during those 14 years, which
have been shared by my colleagues in NOVA.
the appeals process before the va
The VA appeals process begins with the filing of the ``notice of
disagreement.'' A disappointed claimant has 1 year from the date of the
unfavorable decision in which to file the ``notice of disagreement.''
The VA is then required to respond to the ``notice of disagreement''
with a new decision or with an explanation to the claimant in greater
detail why the claim was denied. If the claimant remains dissatisfied
with the response from the VA, the claimant is required to file a
substantive appeal (in essence a second appeal letter) to bring the
case before the Board of Veterans' Appeals. The Board can grant the
claim, deny the claim or remand the claim back to the regional office
if it determines the regional office erred in deciding the claim. It is
not uncommon to see claims remanded from the Board back to the regional
office multiple times before a final decision is made on the claim. The
Chicago Tribune ran a story on May 16, 2005 illustrating how the
repeated remand process harms veterans.\1\
When the case is denied by the Board, the claimant has a 120-day
window to appeal the case to the CAVC. It will ordinarily take another
12 to 18 months for the CAVC to decide the appeal. When the Court acts
in the claimant's favor, the result will most likely be a remand back
to the Board of Veterans' Appeals. See Swiney v. Gober, 14 Vet. App. 65
(2000) (wherein the CAVC acknowledged ``outright reversal on the merits
has been very rare'' and remands are the norm). The remand from the
CAVC 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 an award of
benefits. With the average age of a veteran now at 58 \2\, the problem
is that many claimants do not survive the protracted adjudicatory
process. Those claimants who do survive are fatigued and discouraged by
interminable delays before the VA. The chart below shows average time
periods for each stage of the administrative process (i.e., excluding
time at court). \3\
------------------------------------------------------------------------
Average Elapsed
Time Interval Responsible Party Processing Time
(days)
------------------------------------------------------------------------
Initial Claim to Issuance of Regional Office... 165 days
Rating Decision.
Notice of Disagreement Receipt Regional Office... 165 days
to Statement of the case.
Statement of the case issuance Veteran........... 48 days
to Substantive Appeal receipt.
Substantive Appeal Receipt to Regional Office... 521 days
Certification of Appeal to
Board of Veterans' Appeals.
Receipt of Certified Appeal to Board of Veterans' 203 days
Issuance of BVA decision. Appeals.
---------------------------------------
Total....................... ................ * 1102 days (3.02
years)
------------------------------------------------------------------------
* 3.02 years.
If a claimant appeals a Board decision to the Court of Appeals for
Veterans Claims, it may easily take another 12 to 18 months for the
Court to decide the appeal.
problems in current va claims adjudication
1. There are no deadlines imposed on the VA to complete any of the
steps in the adjudication of a claim. One famous decision reported that
the claim had been contested for more than 7 years at that point.
Dambach v. Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000). One CAVC Judge
commented during an oral argument that a 14-year delay is not unknown.
2. The multi-step appeals process is redundant and unnecessarily
complicated because it imposes upon the veteran a specific pleading
requirement; i.e, the veteran must assert an additional affirmative
intent to seek appellate review.
3. Too many cases, not enough staff. According to a recent survey
of rating specialists and decision review officers at the regional
offices, 65 percent stated that they had insufficient staff to ``ensure
timely and quality service.'' \4\ The same survey reported that 57
percent believed ``it was too difficult to meet production standards if
they adequately develop claims and thoroughly review the evidence
before issuing rating decisions.'' \5\
4. The regional offices are not getting the decisions right the
first time and this results in claimants filing appeals to the Board
which are then remanded back to the regional office. Many claimants are
stuck on this proverbial hamster wheel\6\ for years.
5. The Board of Veterans' Appeals causes delay in the adjudication
of claims by: (1) failing to follow judicial precedent and forcing
veterans to appeal their claims to Court, and (2) failing to handle
claims expeditiously as Congress intended when it enacted the Veterans
Benefits Act of 2003.
6. The Appeals Management Center has become a ``parking lot'' for
both Court and BVA remanded cases. As of October 2004, there were about
21,000 claims at the AMC.\7\ As the caseload increases at the Appeals
Management Center, longer delays are inevitable.
nova's recommendations to alleviate problems in the va adjudication
of claims
1. Congress should impose mandatory timeframes for each step in the
VA adjudication process. These time limitations should be subjected to
limited extension when the delay is clearly not due to any inaction on
the part of the VA.
2. Have one appeal from a denial by the regional office and
eliminate the requirement that the claimant file two documents to
obtain appellate review, the ``notice of disagreement'' and the
``substantive appeal.'' The claimant should not be required to appeal
the matter twice in order to bring the case before the Board of
Veterans' Appeals. This proposal would require an amendment to 38
U.S.C. Sec. 7105.
3. Even though the VA has not asked for it, an increase in staff is
necessary at the regional office level. Specifically, NOVA believes
that increasing the numbers of decision review officers at the regional
offices would be helpful because they can clear cases and have the
authority to review the case de novo at the regional office level. The
use of decision review officers at the regional office level has been
successful.
4. NOVA believes that the Board of Veterans' Appeals should be
replaced by independent Administrative Law Judges like those in the
Social Security system. This would eliminate the delay inherent in the
centralized Board. Alternatively, Congress should consider
decentralizing the Board of Veterans' Appeals by placing the Board
Members at the regional offices. Instead of having to transfer cases
from the regional offices to the Board in Washington, the Board Member
would be co-located at the regional office.
5. This Committee should consider legislation permitting a veteran
to hire and compensate an attorney earlier in the process. Presently, a
veteran cannot retain counsel until after the Board of Veterans'
Appeals issues the first final decision in the case. This is too late
in the process for counsel to be truly effective because by the time
the Board makes a decision on the claim, the record is effectively
closed. As the VA Inspector General's Report has shown, the initial
adjudicators do not have enough time and staff to make timely and
quality decisions. The same report noted that it is not possible for
the adjudicators to fully develop the claims and meet production
deadlines. Attorneys would be helpful in obtaining, organizing and
presenting records on behalf of the veteran and making sure that the VA
processes the claim in a timely and accurate manner. An amendment to 38
U.S.C. Sec. 5904 is necessary.
conclusion
On behalf of NOVA, I would like to thank the Committee for the
opportunity to present this testimony. Oversight of the VA adjudication
process is critical and necessary to ensure that the VA fulfills the
intent of Congress that it compensate veterans and their families for
all benefits which can be supported in law. NOVA believes that the most
effective means is to permit all claimants to hire an attorney from the
beginning of the claims process. The current system merely reinforces
the adjudicatory errors of the VA and compounds needless delay of these
claims. NOVA submits that amendments to 38 U.S.C. Sec. Sec. 5904 and
5905 to permit legal representation at the initial claim level are
necessary.
Chairman Craig. Robert, thank you very much.
Rick, we will now hear from you, Rick Surratt, Deputy
National Legislative Director, Disabled American Veterans.
Welcome.
STATEMENT OF RICK SURRATT, DEPUTY NATIONAL LEGISLATIVE
DIRECTOR, DISABLED AMERICAN VETERANS
Mr. Surratt. Good afternoon, Mr. Chairman and Members of
the Committee. Today's hearing addresses one of the greatest
challenges facing the Department of Veterans' Affairs:
overcoming the persistent claims and appeals backlogs, to allow
for more timely resolution of benefit claims.
The numbers demonstrate the problem. Various studies have
identified the causes. The causes dictate the solutions. But we
either have not applied effective solutions, or have not
applied solutions effectively.
The consequences impact most negatively on veterans seeking
relief from the economic effects of disability. Of the nearly
502,000 compensation and pension claims pending as of May 21,
2005, nearly 343,000 are the claims that require rating
decisions. Of the rating cases, more than 71,000, or 20.9
percent, have been pending for more than 6 months. The average
time to process rating cases was 166 days in fiscal year 2004.
Comparing this claims backlog to backlogs of the past few
years, the numbers show there has been no maintained reduction
in the pending workload. A maintained reduction does not appear
likely over the long term, if the causes are not targeted more
decisively and effectively with the appropriate solutions.
The various studies have identified several factors that
contribute to VA's problems and inability to overcome them.
These factors are such things as management weaknesses, lack of
accountability within VA, inadequate training, and
inexperienced decision makers.
Some of these factors are a consequence of, and others
compound the root cause of the inefficiency, which are
inadequate resources. The VA does not have adequate staff to
train new employees, conduct quality reviews, and decide claims
accurately and in a timely fashion.
With ensuing backlogs, management's priority becomes the
quantity of cases decided. With the emphasis on production,
quality is compromised; requiring rework and adding to the
appellate workload, which impacts adversely on VA field offices
and the Board of Veterans' Appeals.
To break this escalating cycle of increased inefficiency
from higher error rates, more rework, additional demand on
limited resources, and even greater focus on quantity at the
expense of quality, VA must reorder its priorities.
Quality must be the first priority, even if the backlogs
become worse in the short term. But VA cannot achieve quality
without adequate resources. If VA could begin to attack two
principal deficiencies and break the cycle of failure with
added resources, why doesn't it get them?
The simple answer is: Because OMB dictates staffing
requests as a political decision, for purposes of budget
targets. And that too often becomes what VA gets, rather than
the resources necessary to cover VA's real needs.
I don't mean to suggest that added resources would be a
panacea; just that they are an essential ingredient. VA
management will have to take decisive steps to impose and
enforce accountability for the positive reforms indispensable
to reversing these stubborn and longstanding problems.
Forming specialized rating teams, continually shifting
resources to trouble spots, farming work out from overloaded
stations, overtime, and other such stopgap measures only
temporarily treat the symptoms. They do not cure the underlying
disease. That will take serious reforms.
Mr. Chairman, that concludes my testimony. I will be happy
to answer any questions that the Committee may have.
[The prepared statement of Mr. Surratt follows:]
Prepared Statement of Rick Surratt, Deputy National Legislative
Director, Disabled American Veterans
Mr. Chairman and Members of the Committee:
In response to your invitation to testify today, I am pleased to
present the views of the Disabled American Veterans (DAV) and its
Auxiliary on the functioning and performance of the claims and appeals
processes of the United States Department of Veterans' Affairs (VA).
Unlike any other group of beneficiaries seeking government
assistance, our military veterans inherently and justly deserve special
status, special benefits, and special treatment by and on behalf of the
grateful citizens of the Nation whose interests they served to protect
and preserve. We are beholden and duty bound to honor this national
debt above all others. This principle resides at the very core of and
is inseparable from our patriotic American values.
Congress created VA to serve the interests of this special group of
government beneficiaries in a manner consistent with our irrevocable
indebtedness to them and our profound moral obligation to bestow upon
veterans the benefits and services they so rightfully deserve
consequent to and in return for their extraordinary sacrifices and
contributions to our society. Because of this special status of the
veteran as a claimant, VA has the objective of ensuring the veteran
obtains benefits to which he or she is entitled. VA therefore has a
higher responsibility to its claimants than the ordinary administrative
agency. VA has the responsibility of being supportive and helpful to
veterans in their efforts to obtain benefits, rather than leaving it to
the veteran to prosecute his or her claim without guidance and without
government aid.
With this duty upon VA to assist the veteran in the full
development and prosecution of his or her claim and with the obligation
upon the government to ensure all avenues of entitlement are
entertained and all pertinent legal authorities are considered, the
proper outcome should be all but assured in a perfect world. However, a
mass adjudication system as large and burdened as VA's that often
involves judgments on complex questions, and sometimes conflicting
evidence, is unavoidably imperfect. That is why one of the DAV's
principal functions as a veterans' service organization is its program
of assistance to veterans in benefits counseling and claims
representation.
For this purpose, the DAV employs a corps of 260 National Service
Offers (NSOs) who are stationed principally in Veterans Benefits
Administration (VBA) regional offices nationwide. From our fleet of
Mobile Service Office vehicles, our NSOs also provide counseling and
claims assistance in rural communities, intercity locations, disaster
areas, Native American reservations, NASCAR races, conventions, and
other various holiday and community events. To expand the availability
of assistance, the DAV instituted a program of training and
certification of State and chapter service officers. We certified 889
service officers in 2003 and 1,078 service officers in 2004.
For assistance to service members separating from active duty, the
DAV employs 23 Transition Service Officers (TSOs). In conjunction with
Transition Assistance Programs and Disabled Transition Assistance
Programs, our TSOs provide benefits counseling and claims assistance at
more than 80 military installations throughout the Nation.
Our free services include representation before the Board of
Veterans' Appeals (BVA) for our clients who elect to appeal unfavorable
VA field office decisions. We employ attorneys and a non-attorney
practitioner to provide representation to appellants before the United
States Court of Appeals for Veterans' Claims (CAVC or the Court). Our
attorneys also take appeals to the United States Court of Appeals for
the Federal Circuit.
From our involvement in benefits counseling and the claims and
appellate processes at all levels, we are in a position to observe the
strengths and weaknesses of the VA's system for administering the
benefit programs, particularly the compensation and pension program.
Benefits for disabled veterans and their dependents and survivors are
at the core of the programs VA administers. The effective
administration of these programs, including appellate review of claims
decisions, is essential to the fulfillment of VA's momentous mission to
care for our Nation's veterans.
Historically, VA has struggled in this mission. Problems with
claims processing, accurate decisions, and timely benefits delivery
have plagued and challenged VA for several years. Many underlying
causes acted in concert to bring about this now intractable problem. In
the early 1990s, judicial review of BVA decisions began to expose
arbitrary and unlawful practices. The Court of Veterans' Appeals, now
CAVC, imposed requirements that VA decisions be better reasoned, better
explained, and better supported by the record. In turn, BVA began to
reverse and remand more field office decisions, requiring more rework.
Military downsizing resulted in additional claims. Despite an
increasing workload, annual appropriations provided for reduced
staffing levels. VA also began to lose many of its experienced
adjudicators to retirement, without sufficient remaining proficient
adjudicators to both decide the pending claims and train new employees.
These factors combined to increase pressure on adjudicators to increase
production with an even further compromise of quality. More errors
required more rework and resulted in more appeals, leading to even
greater backlogs and declines in timeliness with a consequent vicious
cycle of increasing inefficiency.
These increasing problems in compensation and pension claims
processing triggered various studies to identify the underlying
problems and recommend remedial courses of action. In 1993, VA created
its Blue Ribbon Panel on Claims Processing. In 1994, Congress
established the Veterans' Claims Adjudication Commission to carry out a
study of the claims adjudication system. In 1995, Congress commissioned
a study by the National Academy of Public Administration (NAPA) of
veterans' claims processing. In response to concerns about the quality
of its service to claimants, VA created a Business Process
Reengineering (BPR) Office in November 1995.
The Blue Ribbon Panel on Claims Processing made more than 40
proposals to improve efficiency in claims processing. These proposals
included improved technology, redesigned work processes, and additional
training.
The Veterans' Claims Adjudication Commission transmitted its final
report to Congress in December 1996. Unfortunately, the Commission's
study was poorly focused and strayed away from its charge to evaluate
the efficiency of the existing claims adjudication processes and
procedures. The recommendations received little serious consideration.
After conducting a study of the claims processing system, the BPR
team issued its report in December 1996. The report called for
comprehensive changes in the way VA processed compensation and pension
claims. The report acknowledged that poor quality and the resulting
necessity to rework claims were the primary problems accounting for
overload on the system. The BPR team identified several core problems
leading to poor quality. The team found that the segmented or
compartmentalized claims process left no one accountable for quality in
the final product. Because the claims and supporting evidence passed
through multiple steps and many hands, errors often occurred. The team
found that management placed the emphasis on production and timeliness
standards, or ``making the numbers,'' instead of producing quality
decisions. This lack of emphasis on quality resulted in high error
rates, inconsistent decisions, and the appearance of arbitrariness in
VA's decisions, which led to a relatively high number of appeals and
necessitated more rework of claims.
The recommended plan adopted process changes designed to remove the
conditions responsible for errors and inefficiency. Quality--and thus
efficiency--and improved service to claimants were to be the primary
goals, supported by training and a certification process for
adjudicators, along with better quality review and accountability
mechanisms. Implementation plans were compiled in a report issued in
June 1997, and the BPR plan was incorporated in the Compensation and
Pension Service's (C&P's) business plan and later in VA's first 5-year
strategic plan under the Government Performance and Results Act (GPRA),
submitted to Congress in September 1997.
In its strategic plan, VA indicated that it planned to attack
quality problems in its products by ``doing it right the first time.''
However, if a mistake did occur, it would be candidly acknowledged and
corrected as a priority. VA would assess and improve the level of
accuracy for all work and correct errors in the shortest possible time
as appropriate for each business line. Some of VA's performance goals
were to make correct decisions 97 percent of the time; decrease the BVA
remand rate from 43.7 percent to 20 percent; and improve the quality of
disability examinations so that 99 percent were sufficient to
adjudicate claims. The DAV and other veterans' service organizations
strongly supported the BPR initiative.
From its comprehensive study of VBA's operations, NAPA issued its
report to Congress in August 1997. NAPA was critical of VBA's past and
planned staff reductions. NAPA noted that no sound basis existed for VA
to conclude fewer employees would be able to handle the future
workload. The NAPA study also concluded that VBA's most fundamental
need was to develop the leadership and organizational capacities
necessary to enable it to plan and manage its functions strategically.
NAPA found that VBA management had a history of operating in a
reactive rather than a proactive mode. NAPA observed that VBA focused
principally on short-term issues, without any comprehensive, effective
long-term strategy to solve its problems and permanently improve
program performance and service delivery. NAPA saw a repetitive pattern
in which VBA was good at generating plans but not good at carrying them
out. According to NAPA, VBA's efforts to develop comprehensive
performance improvements had failed because of a lack of precision
planning and the discipline required to push a generalized vision
through to operational reality. During the implementation process,
systematic oversight, tracking, and coordination had been inadequate.
No systematic cycle had existed for review of effectiveness of the
results of implementation. No management action was taken to keep the
organization focused on achieving its goals.
Additionally, because lines of accountability were not clear, VBA
leaders were not held firmly accountable for high levels of
performance. NAPA noted that VBA's operational control is
decentralized, with power residing in the area and regional office
directors. NAPA found that a sense of powerlessness to take action
permeated VBA. In turn, field personnel perceived VBA's Central Office
staff as incapable of taking firm action. NAPA said that a number of
executives interviewed by its study team indicated VBA management
officials have difficulty giving each other bad news or disciplining
one another. NAPA concluded that, until VBA is willing to deal with
this conflict and modify its decentralized management style, it will
not be able to effectively analyze the variations in performance and
operations existing among its regional offices. Neither would it be
able to achieve a more uniform level of performance. Regarding C&P
service especially, NAPA concluded that the C&P director's lack of
influence or authority over the field office employees would greatly
hamper any efforts to implement reforms and real accountability. NAPA
recommended that the Under Secretary for Benefits strengthen C&P
influence over field operations and close the gaps in accountability.
NAPA observed that accountability is the key. A no-nonsense
approach to accountability disciplines the strategic management cycle.
Top leaders must establish clear, unequivocal accountability for
performance and provide full support to executives and organizations
charged with accomplishing goals. However, leaders must be willing to
discipline those who are not succeeding, according to NAPA.
NAPA acknowledged some steps in the right direction, such as
efforts to implement GPRA methods and the BPR plan. The real question,
according to NAPA, was whether VBA could implement these initiatives
successfully.
In May 2001, VA Secretary Anthony Principi created the VA Claims
Processing Task Force to identify and recommend to the Secretary steps
that VA could take to increase productivity, reduce processing times,
and shrink the disability claims backlog without compromising the
accuracy of decisions or service to veterans. Acknowledging the several
prior studies and efforts to implement their recommendations, the Task
Force observed that VBA had developed many initiatives in the belief
that they would produce a better capability to adjudicate claims.
Regarding these efforts, the Task Force concluded:
While some of VBA actions have been important first steps, the Task
Force believes that VBA Central Office decisions regarding choices
about how to improve the processing of claims has exacerbated the
claims backlog crises. VBA has also created many problems through poor
or incomplete planning and uneven execution of claims processing
improvement projects. VBA Central Office choices have essentially
served to reduce the availability of skilled labor for processing
claims, while diverting experienced staff to implement unproven process
changes that were poorly planned or managed. . . .
VA Claims Processing Task Force, Report to the Secretary of
Veterans Affairs, iii (Oct. 2001). The Task Force summarized the
essence of its own findings: ``The basic overarching theme of the Task
Force findings is that flaws exist in Accountability, Communications,
and Change Management.'' Task Force Report, at iii.
The Task Force's specific findings echoed many of the same
deficiencies and challenges identified in the previous studies of the
compensation and pension claims processing system. For example, the
Task Force acknowledged the fundamental flaw in the system in which
rework overloads the system: ``The current C&P sequential workflow was
not designed to deal efficiently with rework reintroduced into the
process. Rework includes such items as remands, cases under special
review, and pending cases that have aged for some reason, requiring
that they be introduced back into the workflow more than once over a
period of time.'' Task Force Report, at 28. The Task Force also
acknowledged the detrimental effect of appeals upon the system. Beyond
the added workload, the Task Force noted the unfairness to claimants
from delays due to appeals: ``Currently, both the time delays to handle
appeals and the time to correct remanded decisions are both
unreasonable and unfair to veterans awaiting decisions.'' Task Force
Report, at 14.
The Task Force identified several systemic deficiencies
contributing these core problems. Like NAPA, the Task Force observed
that VBA improvidently reduced its staffing:
The effective management of paper documents is a critical success
factor in C&P efforts to process claims in a timely manner. However,
VBA reduced the size of its Regional Office administrative workforce
based on unrealistic assumptions about the benefits of case management
and information technology. As a result, VBA Regional Offices are not
staffed with the number and types of personnel with the skills
necessary to plan and manage a complex administrative support process.
Task Force Report, at 49.
The Task Force found that limited staffing for claims adjudication
also poses a difficult problem. Referring to the dilemma of investing
employee time in training and implementing process reforms versus the
crisis of completing the existing workload, the Commission
characterized the challenge facing VA as follows:
With increasing workload, VBA Regional Offices face the practical
problem of having to allocate a fixed level of direct labor hours to
accomplishing an increasing volume and complexity of work. . . .
Additionally, VBA's workforce is faced with the challenge of having to
allocate direct labor hours to non-claim tasks, such as the planning
and implementation of training and modernization initiatives. Task
Force Report, at 3.
In this regard, the Task Force stated further: ``VBA took trainers
from the service centers to conduct training. This has naturally
reduced productivity significantly. . . . VBA must develop a strategy
to bring on new employees in a manner that allows for timely and
effective training of new employees with minimum impact on the
performance of Regional Offices.'' Task Force Report, at 78. ``Training
new C&P employees pulls experienced staff out of the direct claims
processing system, which leads to increased time to process claims.''
Task Force Report, at 82.
The Task Force also noted the threat to the viability of VA's aging
data system, the Benefits Delivery Network (BDN), as a consequence of
reduced resources and limited staffing:
BDN operations and support are approaching a crisis stage with the
potential for BDN operational performance to degrade and eventually
cease. This situation has occurred because of documented VBA Central
Office policy decisions that limited the funding of BDN upgrades,
reduced the size of the Hines ITC workforce, and stopped new hiring for
the past 5 years. Task Force Report, at 61.
In addition to the need for a solution to the problem of dedicating
staff to the chore of training new employees, the Task Force pointed to
the need for more effective training: ``VBA appears to have no apparent
fully integrated training plan and program. The VBA Office of
Employment Development and Training appears to be neither encouraged,
nor equipped, to develop a comprehensive plan. . . . VBA has not put
together a sorely needed training infrastructure.'' Task Force Report,
at 24. The Task Force summarized some of the defects in adjudicator
training:
The training program was not geared to grade levels or competencies
at each grade level in a job series. Employees were not certified as
having the skills needed to do their jobs. Many of the instructors were
not certified. In addition, VBA did not have mandatory training hours
for all employees. This creates a gap for employees at the journeyman
levels, as training programs are not required. No effort was made to
link the learning activities to increased performance. Some measure is
needed to verify the content of educational programs is achieving the
learning objectives of the organization. Task Force Report, at 79.
Lack of accountability also figured prominently in the defects the
Task Force found: ``there is little evidence of accountability for
decisions and operations.'' Task Force Report, at 50. ``This single
attribute--accountability--is the most serious deficiency in the VBA
organization.'' Task Force Report, at 17. The Task Force described the
nature and intended effect of real accountability:
The term accountability includes not only the proposition that a
leader is responsible for the actions of the group but also is
accountable for the results of those actions or inactions.
Accountability also assumes that systems are in place to both measure
results and to require positive actions when the objective is not
achieved or when adjustments must be made. It is important to establish
direction, to expect that action will be taken, and to provide the
tools necessary to execute the action. Task Force Report, at 16.
In addition to a general lack of accountability, the Task Force
attributed much of the inability to enforce accountability to a weak
management structure. Pertinent comments were as follows:
[T]he VBA Office of Field Operations (OFO) is not organized
properly to function in a leadership role. . . . Not only do the
incumbents have an exceptionally large span of control which cannot be
exercised effectively but also the obvious friction that seems to exist
between the OFO offices and the Central Program Offices (especially
C&P) which is debilitating to both headquarters and Regional Office
organizations. Task Force Report, at 17.
C&P directives are specifically undermined by tepid support or no
support from members of the OFO organization. Task Force Report, at 18.
At present, two Deputy Assistant Under Secretaries (Office of Field
Operations) directly oversee the 57 Regional Offices. The fact seems to
be that oversight is neither effective nor really expected. Task Force
Report, at 70-71.
VBA's Central Office leadership gives the impression of neither
demanding adherence to nor of being completely aware of the actual
compliance to directives at the individual Regional Office level. . . .
If there is no base structure, there cannot be reliable measurement or
any reasonable assurance that claims decisions will be made as
uniformly and fairly as possible to the benefit of the veteran. Task
Force Report, at 16.
With this lack of accountability, the Task Force found a lack of
enforcement of program directives and policies: ``Inconsistent and
inadequate implementation of VBA Central Office directives at Regional
Offices was prevalent. Not only did interpretations differ as to their
meaning, but also many at the working level frequently seemed unaware
of the existence of certain policy changes or did not realize the
importance of the information when it was received.'' Task Force
Report, at 18. ``It is apparent to the Task Force that there is wide
variance in implementing instructions and directives, as well as IT
programs, at the Regional Office level, which has led to confusion and
lack of uniform adherence to accepted procedures.'' Task Force Report,
at 71.
The Task Force found that management weaknesses were an underlying
cause of the poor lines of communication: ``As an example of the need
for clear lines of communication and control, VBA has no effective
method of direct oversight to ensure consistent implementation of
directives.'' Task Force Report, at 71.
Similarly, there was a failure to manage change for the purpose of
bringing about the reforms necessary to overcome the persisting claims
processing problems:
Much of the problem of transforming the current claims processing
system into an efficient system rests on an inadequate management plan;
implementation that too often has been undisciplined and incoherent;
and a failure to establish priorities and achievable completion dates.
Additionally, there were insufficient requirements for feedback
reporting and accountability by Regional Office managers to the Under
Secretary and senior VBA managers. The variability within the system
and among the Regional Offices indicates a lack of follow-through at
VBA Central Office. Task Force members frequently found programs that
had not been implemented fully or according to schedule and, at times,
not implemented at all. Task Force Report, at 55.
The Task Force noted NAPA's identification of this lack of
accountability and recommended solution: ``It should be noted that the
NAPA recommendation (4NAPA-5) stated that the Under Secretary for
Benefits should develop a formal organizational chart for VBA and its
components that closes the gaps in accountability between the Regional
Offices and VBA Central Office.'' Task Force Report, at 71.
From these findings, the Task Force made several recommendations to
correct the problems. Some were stopgap measures, such as specialized
adjudication teams, to reduce backlogs of older cases, and others
involved permanent reforms. Some were to be done as soon as possible,
and others were to be implemented over time. The Task Force warned that
failure to address the fundamental flaws in the system involving
accountability, communications, and change management, ``will ensure
that VBA continues to be perceived as a reactive, short-term focused,
uncoordinated entity.'' Task Force Report, at iii.
In the DAV's view, many of these recommendations appropriately
targeted and addressed administrative deficiencies contributing to the
overall problem. On the other hand, some recommendations were
shortsighted in our view. For example, greater resources were to be
allocated to higher performing regional offices only. Conversely,
poorer performing offices would generally receive no increases in
staffing or other resources to aid in improvement. To us, that
represented continued acceptance of management failures. Instead of
assisting in and insisting on improvement in performance, VBA would
simply punish the poorer performing regional offices with fewer
resources. In addition to acceptance of management inability to induce
change, this would seem to exacerbate poor performance and put
improvement beyond the ability of underachieving regional offices.
Moreover, it would punish veterans under the jurisdiction of the less
proficient offices.
In any event, the Task Force was calling upon an entrenched
bureaucracy to change its ways, and, while many of the recommendations
were beneficial, they did not focus enough on correcting the primary,
or root, causes of claims backlogs in our view. Although the Task Force
recommended improvements in training, recommended the imposition of
means to measure and enforce individual accountability, and recommended
a stronger management structure, the necessary improvements in quality
and timeliness have not been forthcoming. We believe VBA still has not
taken the steps necessary to ensure adjudicators ``get it right the
first time.''
VA has been unable or unwilling to break the cycle in which
production pressures drive a short-term quest for production that
compromises quality for quantity and, over the long term, proves
counterproductive. In The Independent Budget (IB) for fiscal year 2005
at pages 28-29, we observed that emphasis on production targets with a
corresponding compromise in quality had apparently begun to cause anew
a decline in timeliness as we had warned in the IB for the previous
year. These persisting problems have prevented disabled veterans from
receiving, within a reasonable time, the financial assistance they
often urgently need to relieve the economic effects of disability. We
also emphasized that VA cannot overcome these problems without adequate
resources.
As of May 14, 2005, there were 506,105 compensation and pension
claims pending. Of these, 345,237 were claims requiring disability
rating actions, with 72,701 of the rating cases, or 21.1 percent, in a
pending status for more than 180 days. This number of currently pending
rating cases represents a substantial increase above the 253,597 cases
pending at the end of fiscal year (FY) 2003 and the 321,458 cases
pending at the end of fiscal year 2004. In its fiscal year 2006 Budget
Submission, VA projected that it would reduce the number of rating
claims pending at the end of fiscal year 2005 to 282,876. With this
backlog increasing and a little more than one-third of the fiscal year
remaining, it appears VA will finish the year with a loss of ground
rather than a gain against the backlog.
According to the ``Budget Highlights'' in the President's Budget
Submission, one of VA's highest priorities is to ``[i]mprove the
timeliness and accuracy of claims processing.'' The Budget Submission
states: ``Funds are included in the Veterans' Benefits Administration
to sustain progress made under the Secretary's priority of improving
timeliness and accuracy of claims.'' In another statement, the Budget
Submission declares: ``As a Presidential initiative, improving the
timeliness and accuracy of claims processing remains the Department's
top priority associated with our benefit programs.'' However, it
appears that this budget abandons efforts to improve on the intolerable
situation in which VA has large backlogs of pending claims and in which
benefits awards to veterans are delayed as a consequence. The Budget
Submission for fiscal year 2004, for example, set a goal of reducing
the average processing time for compensation and pension claims from a
projected 165 days in fiscal year 2003 to 100 days in fiscal year 2004,
with a strategic target of 90 days. The Budget Submission for fiscal
year 2005 set a goal of reducing the average processing time for
compensation and pension claims from a projected 145 days in fiscal
year 2004 to 100 days in fiscal year 2005, with a strategic target of
90 days. The fiscal year 2006 Budget Submission revises these figures
to show that average was actually 166 days in fiscal year 2004, that
the time will be reduced to 145 days in fiscal year 2005, and that the
goal for fiscal year 2006 is also 145 days. The strategic target has
been increased from 90 days to 125 days. This demonstrates that the
resources requested are insufficient to meet a goal that VA portrays as
a ``top priority.'' These figures call into question the genuineness of
this stated goal.
Adequate resources are a key element of an efficient and effective
benefits delivery system. Adequate resources permit VA to perform
training to bring the proficiency of adjudicators up to acceptable
levels. Undeniably, veterans' benefits law and the medical questions
involved in disability decisions are often complex; inescapably,
adjudicators must be well trained. Effective training requires
resources, that is, knowledgeable and experienced instructors who have
the necessary time to devote to instruction and who utilize uniform
lesson plans and available technology. In turn, well-trained
adjudicators must have adequate time to thoroughly review evidence and
make well-researched and well-reasoned decisions. With the unavoidable
variations in proficiency, competent quality reviewers must review a
sample of the decisions of each adjudicator and overseers must impose
remedial measures where quality reviews demonstrate deficiencies, if
the system is ever to be efficient. Management, from the regional
office level to the top, must constantly monitor performance and
enforce accountability. Though there always must be a reasonable
balance between time allowed for decisionmaking and the necessity to
stay abreast of the workload, quality cannot take a backseat to the
blind pursuit of production quotas. As obvious as these realities are,
VBA seems to set them aside in its reactive mode of management where
field offices are directed to reduce backlogs at all cost.
To complement its Systematic Technical Accuracy Review (STAR)
program, which measures quality at the national level, VA announced in
the year 2000 a new initiative for quality review at the individual
level. Acknowledging that management needed a tool to consistently
monitor individual performance, VA created the ``Systematic Individual
Performance Assessment'' (SIPA) program. Under this program, VA would
review an annual sample of 100 decisions for each adjudicator to
identify individual deficiencies, ensure maintenance of skills, promote
accuracy and consistency of claims adjudication, and restore
credibility to the system. The reviewers would perform related
administrative functions, such as providing feedback on reviews,
maintaining reports, and playing a role in employee development and
ongoing training. Unfortunately, VA abandoned this initiative during
2002, and proficiency is now apparently subjectively assessed by
supervisors based on their day-to-day perceptions of employee
performance. Without any actual systematic review of samples of an
individual adjudicator's decisions, deficiencies are more likely to go
undetected and unremedied. Here again, we must question whether the
culprit behind abandonment of SIPA was inadequate resources.
The VA Claims Processing Task Force addressed inadequacies in
adjudicator training in substantial detail. Task Force Report, at 77-
81. From its findings, the Task Force recommended centralization and
integration of VBA training. This recommendation included a
comprehensive list of specific measures to improve the content and
delivery of training. Our understanding is that many of these measures
have not been implemented, that VA has no structured or ongoing
training for journeyman adjudicators, and that no procedure exists to
target training to deficiencies demonstrated by STAR reviews.
Therefore, we believe the Committee may wish to specifically query VA
about its training program, with specific reference to the details of
the Task Force recommendation.
Again, the lack of a methodical and ongoing assessment of
individual proficiency, the lack of a structured and uniform national
program of training for journeyman adjudicators, and the lack of any
feedback connection between training and STAR assessments can be
expected to lead to and tolerate poor quality and a lack of national
uniformity in claims decisions. Recent print media articles by
investigative reporters using VA-generated data exposed geographical
variations in the average compensation levels of veterans.
This media attention prompted VA to have its Inspector General (IG)
investigate the claims adjudication system. The IG's office found that
demographic factors accounted for some of the variance. Differences
between claims processing characteristics of the States studied
generally did not reveal correlations to variances. However, the
inconsistency between States was significant for veterans rated 100
percent for post-traumatic stress disorder, for example. The IG report
attributed this to the subjectivity of the rating criteria. Sixty-five
percent of the adjudicators who responded to a survey by the IG's
office reported insufficient staff to ensure timely and quality
service. Fifty-seven percent of the adjudicators responded that is was
difficult to meet production standards if they took the time to
adequately develop claims and thoroughly review the evidence before
deciding the claim.
To aid us in providing the Committee information for this oversight
hearing, we asked the supervisors of our national service offices to
provide assessments of the strengths and weaknesses of their VA
regional offices. Rather than have them respond to a list of issues
compiled by our headquarters staff, we allowed them to report based on
their individual perceptions and views of the most notable or prominent
factors responsible for the performance of their regional offices.
Among the favorable comments, the experience, competency,
attitudes, and decisionmaking of decision review officers (DROs) were
the most frequently mentioned. Many of our supervisors also reported
good cooperation between veterans' service organizations and regional
office management, although there were also several who reported less
cooperative relationships and open communication.
The number of comments about inadequate VA staffing by far exceeded
all others, favorable and unfavorable. About two-thirds of our
supervisors pointed specifically to overworked VA employees as a
serious problem responsible for poor performance. Associated with this
inadequate adjudication staff were frequent comments that management
pushed for production over quality and that there were timeliness
problems in developing and deciding claims, as well as authorizing
awards, and completing actions on appeals and remands. Several offices
reported that VA managers diverted DROs from their regular duties to
work these older claims and constantly required employees to
concentrate on reducing the backlogs of certain types of claims that
had been neglected or allowed to remain pending for the longest periods
of time. The second most frequently mentioned problem was inexperienced
and inadequately trained adjudicators due to a high rate of employee
turnover, complicated by insufficient staff or time for training. Many
of our supervisors reported low morale among VA employees consequent to
the burdens and problems stemming from understaffing. Poor quality in
VA disability examinations was mentioned by some of the supervisors. A
frequently occurring criticism was the observation that, contrary to
law, VA adjudicators insist on ordering VA examinations where treatment
records provide all the medical findings necessary for a decision.
Another recurring comment was that adjudicators do not actually consult
the laws, regulations, and other legal authorities to make decisions,
but rather rely almost totally on standard formats in the computer-
assisted rating tool, Rating Board Automation 2000, to make decisions,
thereby omitting consideration of pertinent laws and regulations in
some instances.
Appellate workloads and dispositions provide insight into the
quality of VA regional office claims decisions. In our testimony here,
we focus on compensation and pension claims processing inasmuch as that
is where the challenges are the greatest and the problems persist.
Approximately 95 percent of BVA's workload involves disability
compensation and pension claims. Because appellate review is so
essential to ensuring justice in an unavoidably imperfect adjudication
system, the proper functioning of appellate processes is of major
importance, especially where the rights and benefits of our veterans
are involved.
As a statutory board, BVA was created in recognition of the
importance of an effective appellate body within the VA administrative
process and after experiments with other variations of appellate review
had proven unsatisfactory. By consolidating and centralizing the
appellate board in Washington, DC., under the authority of the agency
head, then the Administrator of VA, the problems of decentralization,
lack of uniformity, and the lack of finality were addressed through a
clearer sense of direction. By Executive Order issued July 28, 1933,
promulgated as Veterans Regulation No. 2(a), President Franklin D.
Roosevelt established BVA. That Executive Order later became law
through operation of a special statutory provision. By Veterans
Regulation No. 2(a), the President mandated that BVA would sit at VA's
Central Office, be directly under the Administrator, provide one review
on appeal to the Administrator, afford ``every opportunity'' for a
``full and free consideration and determination,'' provide ``every
possible assistance'' to appellants, have final authority, and take
final action that would be ``fair to the veteran as well as the
Government.'' Since its inception, BVA has operated separate and
independent from the other elements of VA. While there have been some
changes in its configuration since 1933, BVA has retained its basic
concept and mission.
As it exists today, BVA's mission is still to make the final
decision on behalf of the VA Secretary in claims for benefits. Section
7104 of title 38, United States Code, provides: ``All questions in a
matter which . . . is subject to a decision by the Secretary shall be
subject to one review on appeal to the Secretary. Final decisions on
such appeals shall be made by the Board.'' The Board operates under
various statutory provisions codified at chapter 71 of title 38, United
States Code, as well as regulations in part 19 and rules of practice in
part 20 of title 38, Code of Federal Regulations.
Although BVA generally makes the final decision in an appeal, the
appellate process begins with the VA field office that made the
decision appealed, referred to as the agency of original jurisdiction,
and, in some instances, action by the agency of original jurisdiction
in an appealed case alleviates the need for a final decision by BVA. An
appeal may be favorably resolved by the agency of original jurisdiction
before the case is transferred to BVA or after the case has been sent
back, ``remanded,'' to the agency of original jurisdiction to cure some
procedural omission or record defect. Up to 50 percent of the appealed
cases are resolved by the agencies of original jurisdiction and never
reach the Board. About 75 percent of the remanded cases are returned to
the Board for a final decision, however.
A veteran or other claimant initiates an appeal by filing a
``notice of disagreement'' with the agency of original jurisdiction.
The agency of original jurisdiction may then take such additional
development or review action as it deems proper. If such action does
not resolve the disagreement, the agency of original jurisdiction
issues to the appellant a ``statement of the case'' that contains a
summary of the pertinent evidence, a citation of the pertinent legal
authorities along with an explanation of their effect, and an
explanation of the reasons for the decision on each issue. To complete,
or ``perfect,'' the appeal, the appellant must then file with the
agency of original jurisdiction a ``substantive appeal,'' a written
statement specifying the benefit or benefits sought and the bases of
the appellant's belief that he or she is legally entitled to the
benefit or benefits. Upon receipt of the substantive appeal, VA enters
the case on the BVA docket. The BVA docket is a list of cases perfected
for appellate review compiled by the chronological order in which the
substantive appeal was received. The Board receives these cases for
review by their order on the docket, although a case may be advanced on
the docket for demonstrated hardship or other good cause. The Board
must afford each appellant an opportunity for a hearing before deciding
his or her appeal. The hearing may be held before the BVA at its
principal office or at a VA facility located within the area served by
appellant's VA regional office. The Board may enter a decision that
orders the granting of appropriate relief, denying relief, or remanding
the appeal for further action by the agency of original jurisdiction.
The Board may reconsider its decision upon an order by its chairman
on the chairman's initiative or upon a motion by the claimant, and the
Board may correct an obvious error in the record without regard to an
order for reconsideration. The Board is also empowered to revise its
decision on grounds of clear and unmistakable error. The Board may
undertake review on grounds of clear and unmistakable error on the
Board's own initiative or at the request of the claimant.
Claimants for veterans' benefits who believe BVA made factual or
legal errors in deciding their claims may appeal to CAVC. The Court may
affirm or reverse the BVA decision, or remand for further action. The
landmark legislation enacted in 1988 that subjected BVA decisions to
the scrutiny of an independent court has necessitated positive reforms
in BVA decisionmaking. Because the Board's decisions must be justified
with an explanation of the factual findings and legal conclusions and
because VA must defend its decisions in court, denials that go against
the weight of the evidence or law have declined. The Board allows and
remands substantially higher percentages of appeals than it did before
judicial review.
During 2004, 2,234 claimants appealed to CAVC. The Court decided
1,780 cases, with an average processing time from filing of the appeal
to disposition of 392 days. Of that total, 1,087 cases, or 61 percent,
were either reversed/vacated and remanded or remanded because of some
substantive error or procedural defect. This reflects a high error rate
among those BVA decisions appealed to the Court.
During fiscal year 2004, 108,931 new notices of disagreement were
received by VA, 49,638 appeals were perfected and added to BVA's
docket, 39,956 cases were physically transferred from agencies of
original jurisdiction to BVA, and the Board decided 38,371 cases. The
Board began fiscal year 2004 with 27,230 cases pending before it and
ended the year with 28,815 cases pending. Accordingly, the number of
new appeals added to the Board's docket during the year exceeded the
number of cases it decided by 11,267, and the number of new appeals
added to the Board's docket exceeded the number of cases transferred to
the Board for a decision by 9,682. The Board decided 1,585 fewer cases
than it received from field offices.
At the end of fiscal year 2004, there were more than 161,000 cases
in field offices in various stages of the appellate process, including
the 31,645 on remand. Some of these appeals will be resolved at the
field office level, but about three-quarters of them will come before
the Board. At the end of March 2005, there were 51,508 cases on the BVA
docket.
During fiscal year 2004, the average time for resolving an appeal,
from the filing of the notice of disagreement to the date of the
decision, was 960 days. Of this total, 734.2 days was the average time
an appeal was pending in the field office, from the notice of
disagreement to the transfer of the case to BVA, with an average of
225.6 days from the date of receipt of the case at BVA to the date of
the decision. As of April 30, 2005, the average total days for cases
pending in the field was 830 days and the average time at BVA was 204
days. Of course, for those cases remanded, the total processing time is
considerably longer. In fiscal year 2004, an additional 155.6 days were
added to the total processing time of appeals for the time the case
spent at BVA the second time following the remand, and this did not
include the number of days the case was on remand at the field office.
During fiscal year 2004, 7,140 cases were returned to the Board
following remands. The remands took an average of 22 months. As noted,
there were 31,645 cases on remand at the end of 2004. Of the 38,371
cases decided by BVA in fiscal year 2004, approximately 21 percent had
been previously remanded. With these long processing times, far too
many disabled veterans die before their appeals can be decided. Three
obvious conclusions follow from these numbers: (1) most of the delay in
these unreasonably protracted appeals processing times is at the field
office level, (2) far too many cases must be remanded more than once,
and (3) multiple remands add substantially to the workload of BVA.
The Board allowed 17.1 percent of the cases it decided during
fiscal year 2004. Approximately 24 percent of those allowed cases had
been previously remanded. The Board remanded 56.8 percent of the cases
it reviewed during fiscal year 2004. Of those remanded cases, 18
percent had been remanded previously, suggesting that the field office
did not fulfill the Board's instructions in the remand order. Together,
the allowed and remanded cases represented 73.9 percent of the Board's
total case dispositions in 2004. Denials amounted to only 24.2 percent
of the total dispositions. In addition to noting the high percentage of
cases remanded multiple times, three conclusions can be drawn from
these percentages: within these appealed cases, (1) agencies of
original jurisdiction have denied many meritorious claims, (2) agencies
of original jurisdiction have denied many cases without proper record
development, and (3) only a relatively small percentage of these
appellants had unwarranted appeals.
While the high remand rate can be viewed generally as an indicator
of poor quality, it must be noted, however, that not all remands are
appropriate. For example, 6,355 cases involved a remand for a new
examination and ``current findings'' because of a ``stale record'' in
fiscal year 2004. That is an invalid reason to remand an appeal. When a
veteran appeals, he or she is challenging the propriety of the decision
on the record at the time the agency of original jurisdiction made the
decision. If the examination or other medical evidence provided
adequate medical information for an adjudication at that time, no
additional evidence is necessary to decide the appeal. The time that
lapses between the time of the initial decision and the decision on
appeal, while often protracted, has no bearing on the merits of the
appeal and is irrelevant as a matter of law. Only when BVA finds an
inadequacy in the examination, or the record otherwise, is a remand
appropriate to gather additional evidence. Appellants have the option
to submit additional evidence to corroborate evidence already of
record, shed additional light on the factual questions, or otherwise
strengthen or reinforce the appeal, and that evidence is for
consideration, of course, but that rule does not provide any grounds to
remand where the existing record is complete and the evidence is
sufficient for a fair and sound decision. Again, with an adequate
record, the question on appeal is not the factual state of affairs
today or degree of disability currently, but whether the decision was
correct or incorrect when it was made.
In, VAOPGCPREC 11-95, a decision that is legally binding upon VA
and Board, the VA General Counsel held that BVA is ``not required to
remand an appealed disability-benefit claim solely because of the
passage of time since an otherwise adequate examination report was
prepared.'' Other rules such as those in sections 3.104 (a) and
3.105(e) of title 38, Code of Federal Regulations, prescribe procedures
and due process requirements for addressing actual demonstrated changes
in disabilities that occur following final rating actions. Remands on
the premise that an examination is ``stale'' are unlawful, waste
resources, and unnecessarily delay appellate decisions and benefit
awards. Where an examination at the time of an initial adjudication was
adequate for a determination on the degree of disability then present,
where that examination supported a rating higher than the one assigned
by the agency of original jurisdiction, and where BVA affirms that
erroneous rating based on a later examination--perhaps years later--
that showed intervening improvement in the disability, the BVA decision
is unlawful. The decision is unlawful because its effect is one of a
retroactive reduction in a disability evaluation contrary to section
5112(b)(6) of title 38, United States Code, and without observance of
due process mandated under section 3.105(e).
In fiscal year 2004, BVA remands were for new examinations in
22,987 cases. Of that total, 16,632 were for reasons other than stale
records or examinations, such as for clarification of diagnoses and to
correct incomplete medical findings. The most prevalent reason for
remand was to obtain additional evidence beyond that obtained by the
agency of original jurisdiction. Among the cases remanded in fiscal
year 2004, 48,624 included remands to obtain additional evidence. Other
reasons for remands were to complete various procedures or actions
previously omitted or required by intervening changes in law or
circumstances.
Our service officers tell us that a greater portion of the appeals
could be resolved at the regional office level if adjudicators there
actually read and considered the statements on the substantive appeal
and the service officers' arguments on the ``Statement of Accredited
Representative in Appealed Case.'' These arguments are entered while
the appeal is still before field office and are directed at field
office adjudicators. Based on arguments of inadequate exams, incomplete
record development, and other errors, BVA will summarily remand a case
where the error complained of is fairly clear on its face.
Conscientious field office adjudicators could resolve such errors more
promptly and without necessity for BVA review by merely reading the
arguments. Apparently, time constraints and the lack of any production
credit for such reviews act as a disincentive for another look by an
adjudicator at these stages of the appeal. Reduction of the workload on
BVA and avoidance of the added cost of consideration by BVA should
provide an incentive for VBA management to correct this problem,
however.
In addition to the burden of an increasing workload, reductions in
its staffing levels for BVA in the past few years add to the strain
upon the Board. Despite these increasing workloads, the President's
fiscal year 2006 budget again calls for a further decrease in staffing
from 440 fulltime employees (FTE) to 434 FTE. This would be down from
455 FTE in fiscal year 2001. If future backlogs and delays in appellate
processing are to be avoided, BVA must have the additional resources
necessary to meet this greater workload.
In August 2001, VA proposed to amend the Board's regulations to
enable the Board to perform record development itself and make a
decision on that evidence rather than remand the case to the agency of
original jurisdiction for these purposes. For several reasons related
to unfairness and inefficiency, the DAV urged VA not to issue a final
rule to authorize this practice. We also noted that such a rule would
be unlawful because it would deprive claimants of the statutory right
to have a decision by VA and one administrative appeal from that
decision. The DAV proposed an alternative in which a special unit of
VBA personnel in Washington could perform the remand development and
make a new decision on the additional evidence. This would be a
shortcut to avoid the delay of a remand to the regional office. The
goal of speeding up the process could be accomplished without any
denial of due process for the claimant. VA brushed aside our objections
and recommendations and issued a final rule for this purpose in January
2002. To handle this work, BVA created its Evidence Development Unit,
which began operations in February 2002. The DAV, joined by three other
organizations, challenged this rule in the United States Court of
Appeals for the Federal Circuit. In its May 1, 2003, decision, the
Federal Circuit invalidated the rule as unlawful. As a result, VA
created a special VBA unit, the AMC, to perform remand functions.
The AMC develops and decides approximately 96 percent of the BVA
remands. The issues involved in the other 4 percent are more
appropriately handled by the field offices. Although the average time a
case was in remand status during fiscal year 2004 was 22 months because
a portion of the cases were old ones remanded to field offices, the
portion of the remanded cases that were developed and decided by the
AMC were on remand an average of approximately 203 days. As of April
23, 2005, the average days a case is on remand before the AMC had more
than doubled, to 412.6 days. The AMC currently completes work on an
average of 231 cases a week, and 20,970 cases were assigned to AMC as
of April 25, 2005.
This backlog resulted from the bulk transfer of approximately 9,000
cases from the Board to the AMC in the first quarter of fiscal year
2004. These were cases in which further development was pending at the
Board. Of course, the AMC had both the responsibility to develop and
adjudicate these cases. In the beginning when the AMC was first
organized, it had to cope with new processes and adjudicators, and it
was understandably not up to full efficiency. As a consequence, cases
began to back up.
Because the volume of work at the AMC was higher than expected, VBA
developed a plan in December 2004 to have three VA regional offices do
a portion of the remands. These offices are located in Huntington, West
Virginia; St. Petersburg, Florida; and Cleveland, Ohio. Initially, the
plan was that cases already developed and ready to adjudicate would go
to the Huntington and St. Petersburg offices. Huntington was expected
to adjudicate and authorize awards for 300 cases per month. St.
Petersburg was expected to adjudicate and authorize 500 cases per
month. Cleveland was expected to develop, adjudicate, and authorize 600
cases per month. The Huntington and St. Petersburg offices found that
some of the cases they received from the AMC were not actually ready to
adjudicate. These offices began to undertake development also. The AMC
currently sends 1,300 cases a month to the AMC teams at the three
regional offices.
Our DAV representatives at BVA observed that some of the earlier
cases returned to the Board from the AMC were not developed in
compliance with the remand orders. However, with AMC employees gaining
experience, the quality of development has improved. The AMC is viewed
as an improvement over the prior procedure in which all cases were
remanded to agencies of original jurisdiction because cases are more
strictly controlled and not left to languish in field offices for
years, as too often happened before. Our representatives at the AMC
also report that AMC adjudicators are granting the benefits sought in
many of these appeals.
When the BVA allows an appeal, it returns the case to the AMC
rather than the agency of original jurisdiction to effectuate the award
of benefits. The case often must go to the AMC because the appeal also
involves a remanded issue. A major complaint is that the AMC delays the
award of benefits on the allowed portion of the appeal for an average
of 90 days. Even where the case involves no remanded issue, the case is
sent from BVA to the AMC for the award of benefits, and this results in
unnecessary delay. In instances where an allowed appeal involves no
separate remanded issue, the case should be returned to the agency of
original jurisdiction for a prompt award. Many of these claims have
been pending for years.
Currently, VBA has 134 FTE devoted to the AMC and its three
outstations. The AMC has 87 FTE. St. Petersburg has 25 FTE, Huntington
has 8 FTE, and Cleveland has 14 FTE devoted to their AMC Resource
Units. If the BVA remand rate remains at or near 50 percent of its
dispositions, it is projected that VBA will need to increase its
staffing for this activity to 145-150 FTE in fiscal year 2006.
The foregoing information suggests that VBA still reactively
expends too much of its resources fighting brushfires and not enough on
fire prevention. When the effects of a bottleneck become a public
embarrassment, VBA creates a ``Tiger Team'' or ``brokers'' work from
the overloaded activity to another station. This may serve to
cosmetically level out the mountains, but it does not appear to
substantively reduce the total volume of work across the system. When
VBA does push to reduce the backlog in the short term, it increases
work in the long term by compromising quality. This necessitates more
rework and triggers more appeals, which overloads the system even more,
and causes a further decline in timeliness. The timeliness and
propriety of actions on appeals by agencies of original jurisdiction in
preparing the case for BVA review and in completing remand actions
after BVA review account for much of the overall appellate processing
time and necessity to rework the case. The available data show the
error rates in appealed cases are high and that the process takes an
inexcusably long time, thereby delaying disability and other benefits
for many veterans with meritorious claims and immediate needs. The
problem of appeals languishing in regional offices for years is not a
new one. The responsible VBA officials need to take more decisive
action to correct this problem. Board officials need to take the
necessary steps to reduce error rates in BVA decisions and to ensure
binding court mandates are carried out. With recent increases in the
appellate caseloads and no corresponding increase in staffing,
timeliness at BVA and the AMC is likely to suffer even more. Congress
needs to address BVA staffing more seriously.
We appreciate the Committee's interest in these issues, and we
appreciate the opportunity to provide you with the DAV's views. We hope
our views will be helpful to the Committee.
Chairman Craig. Rick, thank you very much.
Judge Kramer, in your comments and in your testimony,
during your service in the court you saw cases that had been
remanded numerous times previously, and had been pending in
appellate status for up to 10 years. It is my understanding
that even under those circumstances, the court generally does
not set specific timeframes within which a claim must be
completed after it is remanded by the court.
Do you believe it would be beneficial for the court to set
specific timeframes in these types of cases? And does the court
have the authority currently to do so?
Mr. Kramer. That is a very good question. To answer the
last part first, I think there is probably disagreement among
the judges of the court, at least when I was there, as to
whether the court has that authority. I believe, personally,
that it does.
I think that for those that believe the court does have the
authority, I think many are reluctant to exercise that
authority in every case. It puts an institution of less than
100 people in a situation where they are, in essence, micro-
managing one of the largest bureaucracies in the Federal
Government. It is almost an impossible task. And then, of
course, by putting dates of specificity on it, it is really
making a decision as to which claim is more important than the
other.
You can see from some of the previous witnesses here that
how to pick which claim to do first is a very difficult task,
indeed.
I, personally, in conducting my own caseload, did sort of
that, time-limiting in the most egregious cases, by suggesting
in some of my orders that if certain results hadn't been
accomplished by a certain date, that a writ to the court might
be accepted. And then generally, when I did that, the job got
done within the requisite timeframe. But it was a mechanism
that I used, like I say, only in the most egregious cases and
in relatively rare situations.
Chairman Craig. When you used that, did you get pushed
back? Or were they handled within a reasonable timeframe?
Mr. Kramer. No, I think generally it worked. But if the
court were to do that in every case, I think you would just
find, quite honestly, that bureaucracy of writing memos to
itself about which cases ought to be treated first probably
would create more paperwork than to do the job that has to be
done and get the cases resolved.
I think the problems are probably more systemic. The
Congress has already provided several provisions of law that
say that there shouldn't be delay; that cases are to be handled
with dispatch, and so forth. And it still hasn't happened. And
I don't know that the court, if it imposed deadlines in any
other case, would be any better at accomplishing that.
Then you would have a situation where people would be
coming, asking that sanctions be imposed against the Department
for failure to comply with all these timeframes set. I think
that would just result in additional secondary litigation that
didn't really resolve the true litigation that needed to be
resolved, and that is litigation on behalf of the veteran.
Chairman Craig. Thank you, Ken.
Cynthia, VA has reported that it expects to receive over
800,000 claims in 2005. You noted in your testimony that a
single claim may involve numerous disabilities, and that claims
with multiple disabilities may take longer to complete.
Considering that VA has reported a recent increase in the
number of claims involving multiple disabilities, do you
believe that VA's method of reporting the number of claims
received accurately reflects the true size of the caseload? And
also, does VA set different strategic goals for claims that
involve more disabilities?
Ms. Bascetta. Mr. Chairman, no, we think that VA's method
definitely understates its workload. All the claims are
aggregated, regardless of the number of issues. And they
basically use two end products: the first for cases that have
one to seven issues; and the second for cases that have eight
issues or more.
I would also point out that not all issues are equally
complex. Some are much more objective, and could be decided
more quickly; while others, the ones that are more difficult to
resolve, require more judgment. And one would expect that they
would require more time to adjudicate.
So we have recommended that they take a look at how they
can disaggregate their workload, and perhaps even report on
different timeliness goals; so that honestly it could be that
they are doing a better job than their aggregate statistics
show. We also think that if they had better information on
where the problems were, they could focus in on reducing
timeliness, as well as improving accuracy and consistency.
And with regard to your second question, they could set
strategic goals for more complex claims, by using the numbers
of issues as a proxy for complexity. But right now, we think
that they would possibly have some IT obstacles that they would
have to overcome before they could look at their workload that
way.
Chairman Craig. Thank you very much.
Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. Surratt, as you know from my appearance at the
Commission earlier this month, I am very interested in the work
of the Disability Benefits Commission. To follow up on Senator
Salazar's question, what is your assessment of the Commission's
ability to truly examine the benefits system and make
recommendations to benefit veterans?
Mr. Surratt. Well, Senator, I don't believe the law calls
for the Commission to examine the system, but I believe it will
anyway. If you look at the statute that created the Commission,
it tells the Commission to look at the standards for service
connection and to look at the disability rating schedule to see
if it is appropriate. And it speaks of the effectiveness of the
substance of the programs, rather than how they are
administered.
I understand that we are going to probably hear testimony
from the VA IG, and I suspect that we will probably get into
the process some. But in my opinion, that is not the primary
purpose of the Commission.
Senator Akaka. When I visited the Commission, it was a very
active group. I am, of course, interested in what they do and
how they can continue to help veterans. And my question is
along that line.
Judge Kramer, it is good to see you again.
Mr. Kramer. Good to see you, sir.
Senator Akaka. What would be the immediate effects if the
U.S. Federal Court review of U.S. Court of Appeals for
Veterans' Claims cases is eliminated? And I am asking that
because you made the comment that judicial review is a problem,
and even suggested that the Federal Circuit should be removed.
So what would happen if that occurred? And what would be the
long term effects?
Mr. Kramer. Well, I want to make clear that I am not
advocating the elimination of appellate judicial review. What I
am suggesting is that there are too many layers of appellate
judicial review, just as there are too many layers in the VA
administrative system itself.
I don't believe that the elimination of Federal Circuit
review, which is above the veterans' court, would do any damage
whatsoever. But I do believe that it would improve the
timeliness of decisionmaking for those cases that are brought
to it by anywhere from, in many instances, 2 to 5 years.
So that some of these horror stories that you hear about,
about cases going back and forth between all of these different
appellate levels, some of those could be ameliorated and
mitigated against to some significant degree, I think, by only
having one appellate court level of review.
Senator Akaka. Mr. Surratt and Mr. Chisholm, would you
please comment on Chief Judge Kramer's idea that would place an
administrative law judge at a regional office so that a claim
could be sent for more development earlier, with the intent of
eliminating the time a claim is considered by the Board of
Veterans' Appeals?
Mr. Surratt.
Mr. Surratt. I am not so sure--Judge, if I may ask you a
question?
Mr. Kramer. Surely.
Mr. Surratt. Did you mean that the ALJs would replace the
Board of Veterans' Appeals?
Mr. Kramer. No. What I meant was that the object would be
to try to keep many fewer cases from going to the Board, by
getting the matter resolved fully at the earliest possible time
in the decisionmaking process at the local level; and that in
order to really do that, you would need many more capable
people at the RO level than are presently there now. You would
have to have a formal decision at the RO level, which could
then only be attacked at the Board level by an appeal of great
specificity.
Mr. Surratt. Well, I mean, that to me adds another layer.
Certainly, my experience with administrative law judges in the
Social Security system is that they are good, they make good
decisions, and they make sure the cases are developed well in
most instances.
I would say, though, if VA did it right with the people
they have, you have an initial decisionmaker, you have a
decision-review officer, and then you go to the Board.
Obviously, an administrative law judge may be more trained in
the law, and it would be beneficial in that effect.
The regional office adjudicators are essentially fact
finders. They don't rule on questions of law in any real sense,
like courts do. Administrative law judges perhaps would
approach that more deeply, in looking at questions of law.
But it would be quite costly, I would think. That is a
consideration that you are always faced with.
Senator Akaka. Mr. Chisholm.
Mr. Chisholm. Yes. I think in the situation that I
described in my testimony, where the Board members are
decentralized to the regional offices or replaced by
independent administrative law judges, and then with the direct
appeal to the court, that could be successful. Otherwise, it
seems to me that you are adding another layer, and I would not
be in favor of that.
If I could just address one other issue, as someone who has
represented veterans before both the court and the Federal
Circuit, I think Federal Circuit review of claims has been
critical in those limited circumstances where the veteran is
challenging legal interpretations that the court has made. And
in one particular instance in 1998, the Federal Circuit
reviewed the standard of new and material evidence, and changed
the entire way the court and the VA was interpreting that. And
it was critically beneficial to veterans. So I do not believe
that the elimination of the Federal Circuit would be a wise
idea.
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. Surratt. Mr. Chairman, I would like to speak on that
issue, also, if I may.
Chairman Craig. Please.
Mr. Surratt. I have great respect for Judge Kramer, but I
have to respectfully disagree with him on that issue. First of
all, the number of cases that go to the Federal Circuit from
the Court of Appeals for Veterans' Claims are not that great.
Secondly, the Court of Appeals for the Federal Circuit has
made some very important decisions; not all of which we agree
with, of course. But it has proven valuable, I think.
And as to that effect upon timeliness, I don't think it
will help that, because if you lose at Judge Kramer's court and
you don't have a higher appeal, that is the end of the road.
But if you can go to the Federal Circuit, sure, that takes more
time, but it doesn't extend the time that it would otherwise
take. I mean, that case, because the appellant chose to go to a
higher level, of course prolongs the ultimate disposition of
his appeal; but he certainly has another chance to have it
allowed. So I don't see as much benefit in removing the
jurisdiction of the Federal Circuit as Judge Kramer does.
In addition, the Federal Circuit has jurisdiction to take
direct challenges on VA regulations. And there are two ways you
can do that. I mean, you can challenge a regulation in
connection with a case being appealed that goes to the Federal
Circuit, arguing that the regulation is not consistent with the
law, or is arbitrary and capricious, or something of that
nature. So you have two tracks. You would still have the
Federal Circuit reviewing direct rule challenges. So all in
all, I don't see that that would be as beneficial as Judge
Kramer does.
Chairman Craig. Thank you.
Ms. Bascetta. Mr. Chairman, may I make an observation?
Chairman Craig. Yes, Cynthia.
Ms. Bascetta. I am not an attorney, so I would not tread
into this discussion at this level of detail. But before I did
VA disability work, I did Social Security disability work. And
I would just like to make the observation that one of the
things that we found in both situations is that there seems to
be a difference in the model that the decisionmakers use at the
initial and at the first level of appeal; in that there tends
to be more of a medical model and approach to weighing the
medical evidence that the VA regional offices--or the DDS in
Social Security's case--use, as opposed to the more legal
approach at either the Board or at the ALJ level.
And I do think there is something there at the conceptual
level about trying to get more legal expertise earlier in the
process, to try to resolve what the differences might be
between those two levels of adjudication.
And part of what I think would be helpful would be some
training about why there are inconsistencies in decisions on
the same cases between adjudicators at those levels. And some
kind of resolution and feedback about what is going on there
could be ultimately helpful in trying to resolve some of the
consistency and quality issues, as well as reducing rework.
Chairman Craig. Cynthia, are you suggesting that the Social
Security model is a better model, or a different model?
Ms. Bascetta. It doesn't work, either.
[Laughter.]
Ms. Bascetta. They have the same problems. They take too
long. They take a little less time. I think they are at about
95 days now. But they have an all-or-nothing decision. It is
not as complicated as VA in doing a partial disability
decision.
But in terms of inconsistency, they have precisely the same
problem as VA. And their award rate on appeal is very high. I
think it is about 63 percent now. So they definitely have
significant differences in how they are weighing the same
evidence.
Chairman Craig. Thank you.
Senator Thune, welcome.
Senator Thune. Thank you, Mr. Chairman. And thank you and
Senator Akaka for focusing on this very important issue.
Reducing the backlog of claims at the VA is essential to making
sure that our veterans are getting the compensation to which
they are entitled.
And I commend the VA for the efforts that have been made to
mitigate that problem, from hiring new staff to trying to
automate records and streamline some of the case management.
But we still have an awful long way to go, and that backlog
still exists.
There are, as I think have been enumerated today, a number
of reasons perhaps for that backlog, from ineffective methods
of adjudicating claims to inefficient appeals process. But I
think in my State of South Dakota there are veterans who wait
over 3 months to have their claims processed. We have a backlog
of over 1,500 claims, and 175 claims that are currently over 6
months old. So I would say, Mr. Chairman, that this simply
isn't efficient. It is not good enough. And America's veterans
deserve better. And I know that you are, and I believe this
Committee is committed to making sure that we are providing
them with a system that works.
So this hearing is not about assessing blame. It is really
about trying to get to the problem, and trying to figure out a
solution. So thank you for your good work.
A question, perhaps, for Mr. Surratt and Mr. Chisholm. And
that is, many of these issues are resource-oriented issues. If
you have more money, you can hire more staff; you can do more
automation, new computers, that sort of thing.
I guess my question would be, if you had more money, if we
had more resources to allocate to this problem, what would you
do with it? I mean, what is the most efficient way of achieving
a higher level of success, if we were able to find funds to do
that?
Mr. Surratt. Well, the money should be invested in
training, more training. The VA has a problem of a large
turnover in adjudicators. Many of their older, experienced
adjudicators are at retirement age and are leaving. And the
experienced adjudicators do not have time to conduct training
and decide cases and do quality reviews, all three at the same
time.
So somewhere along the line, VA may have to slow down on
the claims processing, unfortunately, in the short term, to
have experienced people, maybe retirees, come back--they have
done that before--and train the new adjudicators better; focus
on, as we have heard today, getting it right the first time.
So that takes an investment of resources up front, and
perhaps some loss of timeliness in the short term for a long-
term strategy of greater efficiency. So with more people, as
you get them trained to decide claims and train other new
people, then eventually you will catch up, if you are ever to
catch up.
So again, devoting resources to training, to better quality
control, and to not push production. As I have stated in my
testimony, what the problem is, when VA starts getting these
large backlogs, they start pressing their adjudicators to put
out larger numbers of cases. And when they do that, they start
making more mistakes. And then their cases have to be reworked,
and that in the long term just creates a vicious cycle.
Senator Thune. Slows it down, right. OK. Anything to add,
Mr. Chisholm?
Mr. Chisholm. I think training is critical. The other thing
that I think is working at the regional office level is the
decision-review officers. These are the folks that have the
second--you can have sort of an internal appeal, if you will,
at the regional office. And the decision-review officer has the
power to do de novo review. And I am seeing a lot of success at
that level.
And I think the VA should increase the number of DROs in
the regional offices. And I think you will see more cases
cleared as a result of that, and not being appealed.
Senator Thune. All right. Judge Kramer, in some of your
series of recommendations you talk about ALJs and consolidating
at the appellate level adjudication. Just curious, would there
be an argument to be made for allowing folks to go directly to
the circuit court of appeals wherever they are, as opposed to
going through the current process?
Mr. Kramer. Well, one of the points that I put in my
written testimony, that I didn't include in my 5-minute version
for lack of time, was that I do believe in a single level of
appellate review. I know that obviously people who lose, as you
can tell from some of the other testimony here--and I
understand that--if you lose at our level, you would like
another opportunity to win at an additional level. But you also
have to balance that against cost, time, and efficiency.
The other alternative suggestion I made, which I think is
more draconian than to eliminate Federal Circuit review, is to
simply merge the veterans court into the Federal Circuit;
increase the expertise of the Federal Circuit in veterans' law.
I don't favor that as a method of one level of appellate review
over the method that I most recommended because, one, I believe
that most people feel that review focused exclusively on
veterans' cases is a good thing; and No. 2, the primary focus
of the Federal Circuit, even if you merged the veterans' court
into the Federal Circuit, would still be intellectual property
law, which is the basis for which they were created in the
first place.
But if you had to choose, I think, between two levels of
judicial review, or one level conducted only by the Federal
Circuit with a merged Federal Circuit court, I think that would
be preferable. In fact, if you look at the Federal Circuit
history, its own growth is one of merger and spin-off, merger
and spin-off, among Article I and Article III courts.
Senator Thune. Thank you, Mr. Chairman. I see my time has
expired.
Chairman Craig. Senator Obama, welcome back.
Senator Obama. Thank you very much, Mr. Chairman. Thank you
to the panel. I am sorry I missed your live testimony, but I
had an opportunity to read the written testimony.
My first question, I guess, is for Mr. Surratt. We had the
Secretary out to Illinois at a town hall meeting in response to
some of the discrepancies that we were seeing in terms of
benefits across the country. And I had an opportunity to review
the IG report on this problem.
One of the things that was striking was the huge gap
between veterans' benefits for those who had VSOs representing
them, and those who did not. And I am wondering what you think
we can do to make sure that all veterans are aware of the need
for an advocate in these circumstances.
And I am wondering whether that is something that the VSOs
have done to actively encourage their use. Why it is that there
might be big differences in some States versus others in terms
of the utilization of VSOs.
Mr. Surratt. What I would speculate--and that is purely
what it is--is that those people who are not represented by
VSOs or attorneys do so because they choose not to be
represented. We certainly put out, all organizations put out,
literature. I think the VA notifies veterans of their right to
free representation from VSOs. And as the figures demonstrate,
there is a better chance of getting higher benefit levels if
you are represented. And the VSOs look behind the VA decision,
and the VA is pressured to make fast decisions. And in the
appellate process, they catch errors.
Senator Obama. I guess what I am wondering is, do we let
veterans know that, you know, if you just look at the studies,
that there may be $6,000 more in benefits if you use a VSO or
an attorney than if you don't? I mean, because my suspicion is
that you might have a veteran going in there feeling like,
``Well, this is something I can handle myself,'' but if
somebody told him, ``You know, on average--may not happen here,
but on average--you are going to get $6,000 more if you are
using an attorney or a VSO advocate,'' that that might make
some difference in terms of what they decide to do.
Mr. Surratt. Well, we have never put it in terms of money.
We didn't have the data.
Senator Obama. Right.
Mr. Surratt. But we have put it in terms of, ``You have a
better chance of getting your case allowed and getting the
proper decision, if you are represented.'' I, personally,
wouldn't want to use money as a selling point. We have the data
before us, and I am sure that that will be widely disseminated.
But, yes, we should encourage veterans to seek VSO
representation in any way we can, and I think we do that. And
again, I would just guess that the majority of those who are
not represented are not represented because of lack of
knowledge, but because of choice.
Senator Obama. OK. Judge Kramer, I just had a quick
question for you. I was intrigued by your suggestion that VA
physicians fill out a standard form addressing causation when
treating new conditions. How much, in your opinion, is the
delay that exists caused by a lack of medical verification?
Mr. Kramer. Well, there is a long-term provision in the
law--certainly predates me; and not much does that--for the VA
to do what other governmental entities don't do, and that is
help a claimant gather evidence for their claim. And in my
experience, the evidence most often missing is evidence of
causation.
And right now, the rules are very murky and ambiguous,
despite the passage of the Federal Claims Assistance Act, as to
exactly when such a medical opinion must be rendered. And it
has been the cause over my career of much litigation, many
remands, and elongating the claims history of claims
significantly. And so I think an early resolution of when that
kind of a medical opinion has to be offered, clarification by
the Committee as to that law, would be extraordinarily helpful.
Now, as you can tell--and as some of the commentators, and
correctly so, suggested--at least there is some front-end cost
to some of the things that I have suggested. You have 800,000
new claims. You know, not all of them will involve medical
causation, of course. But you would have to put some parameters
on when such an opinion was going to be rendered, because you
can't, obviously, issue 800,000 opinions from the get-go.
But I do believe that the fight over when you should get an
opinion--and we found many cases at the court, for example,
that the key questions had never been addressed.
Right now, under the law, VA has, in essence, huge
discretion as to when to obtain such an opinion. Under the old
law, you had to have, in essence, what they call a rounded
claim in order to get VA assistance. As the court interpreted
it, you had to have possible evidence of a present disability,
possible evidence of an event in service, possible medical
evidence in most cases of a relationship between the two.
There was a lot of complaint about that; a lot of cause for
dismay. The Veterans' Claims Assistance Act, I think its
primary objective was to fix that problem. And yet, the very
provision in the Veterans' Claims Assistance Act that deals
with the obtaining of medical opinions, in essence, requires
evidence of a medical connection before the VA is required to
go get an opinion. So we are right back where we started from.
So I would suggest that a lot could be gained on changing
this specific provision, clarifying the rules as to when such a
medical opinion has to be rendered.
Senator Obama. Thank you, Mr. Chairman.
Chairman Craig. Lady and gentlemen, we are running out of
time, and I am disappointed in that. I have several more
questions I would like to ask. So I am going to beg your
indulgence, to submit them to you in writing to gain your
response.
Mr. Chisholm, I am curious about your suggestion to provide
legal counsel earlier on, and the ramifications of that; and a
variety of other aspects of some of the comments that Mr.
Surratt has made. So I will do that. And I understand our
Ranking Member has other questions he would like to ask, also.
So we will submit some questions to you in writing.
Let me thank you all very much for your time here today and
your preparation. It is extremely important to all of us that
we might nudge this system a little further into
responsiveness. I know that the cry for resources is always
there, and that is a difficulty. So we are examining it from
two levels; both resources, and structure and function. And I
think that those are all important aspects as to the process
that will best render our veterans as immediate adjudication of
their claims as is possible.
And the backlogs are at times, by number, overwhelming to
try to understand why we can't get a handle on them; but we
have seen the Veterans' Administration push forward very
aggressively. We hope that will continue. We will continue to
nudge them and observe and, if need be, appeal to the Congress
to make some statutory changes.
Judge Kramer, I appreciate your insight into it. Your
experience obviously is very valuable to us, and your offer to
stay in touch. We will do just that with you, as I know we will
with these other gentlemen and with Cynthia, as we work through
this issue.
Thank you all very much for your time, and the Committee
will stand adjourned.
[Whereupon, at 4:16 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Response to Written Questions Submitted by Hon. Larry E. Craig
to Daniel L. Cooper
Question 1. Currently, priority access to VA health care is given
to combat theater veterans who are within two years of their military
discharge date. To be consistent with that policy, and to encourage
veterans to file claims within close proximity to their service
discharge, should there be priority treatment of claims that are filed
within two years after service, especially if that service occurred
during a wartime period.
Answer. The Veterans Benefits Administration (VGA) is giving top
priority to the benefit claims of all returning war veterans who are
seriously injured, and certainly providing the best possible service to
these returning heroes must remain our highest priority. VBA also gives
priority to claims from terminally ill veterans, homeless veterans,
veterans with severe financial hardship, former prisoners of war, and
veterans over age 70.
VBA has a number of initiatives to assist service members
separating from active duty in filing claims promptly. Under the
Benefits Delivery at Discharge (BDD) program--in place at 140 military
installations around the country and overseas--active duty service
members within 180 days of separation are encouraged to file disability
compensation claims with Department of Veterans Affairs (VA) staff who
are serving at military bases either on a full-time or itinerant basis.
Service members can complete the necessary physical examinations and
have their claims evaluated before or closely following their military
separation dates. In most cases, disabled service members participating
in the BDD program begin receiving VA disability compensation benefits
within 60 days of their separation from active duty, which serves to
ease the transition from active duty to civilian status. In fiscal year
(FY) 2004, the BDD Program received approximately 40,000 claims from
separating service members.
Through the joint VA/Department of Defense (D0D)/Department of
Labor (DCL) Transition Assistance Program (TAP) and Disabled Transition
Assistance Program (DTAP), VBA conducts extensive outreach to ensure
separating service members file claims for VA benefits. Service members
are fully briefed on the VA benefits available to them and encouraged
to apply for the benefits. Since October 2002, VGA military services
coordinators have conducted nearly 20,000 briefings, which were
attended by almost 700,000 service members and families including
members of the Reserve and National Guard. VBA also conducted 1,500
briefings attended by 40,000 service members based overseas.
In view of the fact that VA currently gives priority to claims
filed by seriously injured service members who participated in
Operation Enduring Freedom (OEF) or Operation Iraqi Freedom (OIF) and
the measures already in place to assist service members leaving service
in filing claims for VA benefits, VA does not believe it is necessary
to provide priority handling of all claims filed within two years after
service in order to encourage filing for VA benefits. VA's goal is to
provide quality, timely, and compassionate service to all claimants.
Question 2a. At the hearing, Judge Kramer recommended that Congress
amend the duty-to-assist provision contained in 38 U.S.C. Sec. 5103A(d)
to clarify the circumstances under which VA must provide a medical
opinion as to whether there is a causal link (or nexus) between a
current disability and service. Under what circumstances does VA
provide a medical nexus opinion? In general, must there be some medical
evidence of a causal relationship between a current disability and
service before such an opinion is provided?
Answer. VBA requests a medical nexus opinion when it is deemed
necessary to decide a claim, depending on the facts of the individual
case. 38 U.S.C. Sec. 5103A(d). The statute and the implementing
regulation 38 CFR Sec. 3.159(c)(4) provide guidelines on when a medical
examination or medical opinion is necessary to decide a claim. This
regulation was found valid by the Federal Circuit Court in Paralyzed
Veterans of America (``PVA'') v. Secretary of Veterans Affairs, 345
F.3d 1334 (Fed. Cir. 2003). VA will obtain a medical examination or a
medical opinion if the information and evidence of record does not
contain sufficient competent medical evidence to decide the claim but:
<bullet> The record contains competent lay or medical evidence of a
current diagnosed disability or symptoms of a disability;
<bullet> The evidence establishes that the veteran suffered an
event, injury, or disease in service that the veteran contends is
associated with the claimed condition; and
<bullet> The evidence indicates that the claimed disability or
symptoms may be associated with the established event, injury, or
disease in service or with another service-connected disability.
It would be helpful for a claimant to submit medical evidence of a
causal relationship between a current disability and service, but that
is not required to justify a request for an examination or opinion. VA
regulations, however, require that the record contain some evidence
indicating a possible association between the claimed disability or
symptoms and the occurrence of the event, injury or disease in service.
VA regulations also state that competent evidence of post-service
treatment or other evidence could satisfy this requirement.
Question 2b. What modifications, if any, could be made to improve
or clarify that duty-to- assist provision?
Answer. At the present time, VA has no statutory modifications to
suggest.
Question 3. Since 2000, VA has reported a sharp increase in the
number of rating claims filed each year and VA has attributed that
increase in part to ``older veterans'' filing claims for the first
time. What factors have led to this increased filing rate by older
veterans?
Answer. An increase in claims from older veterans may be
attributable to several factors. VA has increased its outreach efforts
to prisoners of war, 90 percent of whom served during World War II, and
other older veterans. Additionally, a number of changes in VA statutes
and regulations have led to increased claims by older veterans. In
2001, VA amended its regulations to provide a presumption of service
connection for type 2 diabetes based on herbicide exposure. This
presumption largely benefits Vietnam-era veterans. Also in 2001, a
change in law authorized VA to pay pension to veterans of a period of
war who are 65 years of age or older irrespective of whether the
veterans are permanently and totally disabled. Congress has also added
diseases to the statutory list of disabilities that VA is authorized to
presume are related to being a prisoner of war. VA also believes it
receives more claims for increased benefits as veterans' service-
connected disabilities worsen with age.
Question 4. The Government Accountability Office has identified
external sources, such as court decisions and laws, as factors that may
impede VA's ability to improve its disability claims processing
performance. What measures can VA take to better respond to these
external events?
Answer. VA agrees that court decisions and changes in laws can
adversely affect VBA's claims processing performance. VBA monitors
legislative and judicial developments and works with VA's Office of
Congressional and Legislative Affairs and Office of the General Counsel
to try to analyze the anticipated effects of pending legislation and
court cases on VGA and to explain these effects to Congress. When VBA
disagrees with a court decision, it works with the Office of the
General Counsel and Department of Justice to determine whether an
appeal is viable. VBA also actively participates in offering views on
pending bills.
Question 5. At the May 26 hearing, Judge Kramer and Mr. Chisholm
each provided recommendations for improving the VA claims adjudication
and appeal system, including placing Administrative Law Judges or
Veterans Law Judges at the regional offices. Do you have any comments
regarding those recommendations?
Answer. Judge Kramer and Mr. Chisholm made a number of
recommendations at the hearing. These recommendations included placing
Veterans' Law Judges (VLJs) of the Board of Veterans' Appeals (BVA) in
VA regional offices, closing the record at an earlier stage in the
appeal process, eliminating the right to appeal U.S. Court of Appeals
for Veterans' Claims (CAVC) decisions, imposing statutory time limits
for each step in the adjudication process, simplifying VA appeals
procedures, and taking steps that will encourage claimants to retain
private attorneys earlier in the claims process.
As to the first of those recommendations, neither VGA nor BVA
believes that VLJs should be based at regional offices. The existing
appeals process with layers of review was established, in part, to
ensure fairness and integrity and promote claimant confidence in the
decisions. Decentralization or regionalization of BVA by placing VLJs
at the ROs could affect the appearance of BVA independence by creating
a perception in the minds of appellants and their representatives that
BVA is an extension of the regional office and not a separate and
independent body that exists to fairly and impartially consider their
appeals.
Decentralization or regionalization would also pose substantial
challenges to BVA in maintaining the efficiency of its operations.
Given the rapid changes in veterans law and the complexity of the VA
disability system, it is advantageous for VLJs to work in a single
location where they have the opportunity for a quick and free exchange
of ideas and information arid can quickly adapt to changes in the law.
This kind of environment fosters consistency in understanding and
application of the law. Additionally, regionalization of BVA would
create logistical problems, increase expenditures for support services
and legal research resources, and make management of the case flow and
the conduct of quality reviews more difficult.
Judge Kramer also recommended closing the record at an earlier
stage in the appeal process. This recommendation has been explored a
number of times in recent years. VBA will continue to explore this
possibility as it looks for ways to improve the process. VA is
committed to maintaining a veteran-friendly benefits system in which
all relevant evidence is available to decision makers. VA recognizes,
however, that an open record contributes to protracted appeal
processing and therefore to delay in deciding appeals. VA will consider
ways to prevent the protracted piece-meal submission of evidence and
the delays it causes, while protecting due process rights of claimants.
The remaining suggestions offered by Judge Kramer and Mr. Chisholm
would require amendments to VA statutes. At this point, VA does not
propose any statutory changes. If VA does in the future, it will be
with the goal of providing the best possible service to and ensuring
the rights of our Nation's veterans and their families.
Question 6a. Following up on our discussion regarding the increase
in Total Disability due to Individual Unemployability (TDIU) cases,
what, if any, collaboration is there with VBA's Vocational
Rehabilitation and Employment (VR&E) Counselors prior to a TDIU rating
being assigned?
Answer. There is no systematic or institutionalized collaboration
currently between regional office rating staff and vocational
rehabilitation and employment (VR&E) counselors prior to a total
disability due to individual unemployability (TDIU) rating being
assigned. However VBA is looking into how it might use vocational
assessments in making determinations of TDIU entitlement.
Question 6b. After a TDIU rating has been assigned, is there any
collaboration with VR&E Counselors to monitor whether VR&E services,
such as independent living, would be appropriate?
Answer. By statute (38 U.S.C. Sec. 1163) and regulation (38 CFR
Sec. 3.341(c)), each time a veteran is rated totally disabled on the
basis of individual unemployability, the VR&E staff is notified so that
an evaluation may be offered to determine whether the achievement of a
vocational goal by the veteran is reasonably feasible or if independent
living services would be appropriate.
Question 6c. How frequently is a veteran with an assigned TDIU
rating re-evaluated to determine whether barriers to employment
continue to exist?
Answer. There is no uniform set schedule for re-evaluating veterans
rated totally disabled based on individual unemployability. VA requests
re-examinations when there is a need to verify either the continued
existence or the current severity of a disability. Generally, re-
examination is required if it is likely that a disability has improved
or if evidence indicates there has been a material change in a
disability or that the current rating may be incorrect.
VA regulations, 38 CFR Sec. 3.327(b), provide general guidelines
for requesting VA examinations in compensation cases and explaining
when future periodic examinations will not be scheduled, such as when
the disability is permanent and there is no likelihood of improvement.
This is discussed in more detail in response to question number 13.
Question 6d. Please comment on whether there should be an age-
appropriate limit on the award of a TDIU rating.
Answer. VBA has looked into whether to place an age-appropriate
limit on the award of a total rating based on individual
unemployability. While it seems intuitive that individuals who have
reached retirement age could be considered to have likely retired and
that those who are considered retired are no longer in need of a
supplemental compensation payment due to a disproportionately disabling
effect of service-connected conditions on employability, in
consideration of this question VA has found that establishing such an
age cut-off point would be difficult. In the past, age 65 was
considered retirement age. However, the age at which workers retire has
increased overtime. In recent years, legislative changes, new types of
retirement plans, and increases in life expectancy have led to
differences in retirement ages. Also, according to the Bureau of Labor
Statistics, the employment patterns of older Americans suggest that one
can be ``retired'' and still be employed, at least part time. In
addition, rates of self-employment rise with age. VA believes that
focusing on improving adjudication of claims for total ratings based on
unemployability and ensuring adequate controls on cases where total
ratings based on individual unemployability have been established
(including consideration of age) will better serve veterans.
Question 7a. I understand that VA has 57 regional offices (or
`ROs') that administer disability compensation benefits. Over the last
decade, have you observed that some ROs are consistent in their good
performance whereas others are consistent in their poor performance? If
so, how can VA take advantage of attributes of the ROs that, on a year-
to-year basis, consistently outperform the others?
Answer. There are regional offices that consistently demonstrate
high performance year after year. VBA analyzes the practices and
performance of these offices in order to identify best practices that
can be shared across the organization. As one example, VBA conducted a
cycle-time study which involved analyzing each segment of the claims
process in an effort to identify ways to reduce the overall processing
time. The study initially focused on higher performing stations,
observing and documenting best practices. The study then concentrated
on offices experiencing performance difficulties to compare and
validate findings. The results of the cycle-time study were shared with
all regional offices for use in improving performance.
VBA also calls on high-performing offices to provide instructors
for centralized training sessions. These sessions are held throughout
the year for specific groups of employees, including those newly hired,
those recently promoted to first-line supervisory positions, and new
division level managers. Additionally, senior leaders within the
organization are asked to enter into structured mentoring relationships
with employees selected for formal development programs, including
VBA's Assistant Director Development Program and VA's Senior Executive
Service Candidate Development Program. VBA further leverages the
knowledge and skills of the top-performing offices by frequently
looking to those offices for people who can fill leadership positions
at other offices.
Question 7b. Should more work and, consequently, more staff
resources be directed towards the higher performing ROs?
Answer. VBA does employ a strategy of shifting workload and
resources to the highest performing regional offices. This is
accomplished through our resource allocation model, a brokering
strategy, and the use of overtime funds.
Over the last few years, VBA has emphasized a performance-based
resource allocation methodology that provides additional resources to
high-performing regional offices. Regional offices are evaluated in
terms of their weighted share of workload receipts and their ability to
meet and/or exceed operational performance indicators in accuracy,
timeliness, appeals resolution, and appeals timeliness. By linking the
resource allocation process to strategic performance measures, higher
performing stations receive additional resources. This ensures VBA is
reinforcing its commitment to the organizational mission.
VBA also uses a ``brokering strategy'' to balance the inventory of
pending claims across stations. Cases are sent from stations with high
inventories to other stations with the resources to take on additional
rating work. This strategy allows the organization to address both
local and national inventory by maximizing resources where they exist
Overtime funds are targeted to specific goals throughout the year.
Regional offices that meet specified performance targets in a given
month are allocated overtime the following month. This approach allows
higher performing stations to receive additional resources and also
helps the organization make progress toward achieving its national
performance targets.
Questions 8a-8b. Your testimony cited the recently released VA
Office of Inspector General report which found that the VA disability
compensation program does not reflect modern concepts of disability. If
the disability system is not based on ``modern concepts of
disability,'' then on what is it based?
If the disability system is outmoded, how do we know whether we are
paying veterans enough, or too much, disability compensation?
Answer. The VA disability system is based on 38 U.S.C. Sec. 1155,
which requires VA to adopt and apply a schedule of ratings of
reductions in earning capacity from specific injuries or combinations
of injuries based, as far as practicable, upon the average impairments
of earning capacity resulting from such injuries in civil occupations.
The VA rating schedule provides, for each listed medical or
psychological disability, the symptoms or specific findings that
warrant a particular disability level, and Congress sets the amounts of
compensation for each percentage of disability. The determination by VA
of the range of disability percentages available for each condition is,
in essence, a determination of how disabling the condition is deemed to
be, on average, to a person working in a civil occupation.
To give an example, a person whose knee may have pain with
limitation of extension to 10 degrees (so that the leg cannot be fully
straightened without pain) is considered 10 percent disabled. VA
determined that painful limitation of extension causes, on average, a
degree of disability from the average civil occupation sufficient to
assign a 10 percent evaluation, and Congress determined that a 10
percent evaluation justifies a payment of $108 per month.
VA thinks it is a fair criticism that civil occupations may mean
something different today than it did when the rating schedule was
first created. The work done by Americans today is certainly different
in some respects than it used to be. It may not also hold true that all
disabilities of a particular percentage can be said to be equivalent in
terms of the degree to which they impair average earnings in civil
occupations.
VBA has worked to update the criteria for assigning different
percentages of disability for particular conditions. The rating
schedule is comprised of 15 body systems, 13 of which have been updated
since 1994. VA has made the rating criteria more objective and
incorporated current ideas about the manifestations, course, and
treatment for diseases and injury residuals.
The Inspector General report mentioned concerns that the rating
schedule better reflects functional impairment instead of impairment to
earnings capacity. VA recognizes that it may be the case that a person
with a particular level of symptomatology is more or less disabled from
his or her work than is indicated by the rating assigned. A person with
a 100 percent evaluation (which on average indicates total disability)
may not necessarily be unable to do his or her job. Also, in
compensating based on an assessment of average impairment, VA will
always overcompensate some for the actual effect of a set of symptoms
on particular employment and under compensate others. A veteran who is
totally disabled due to a service-connected condition will receive
$2,299 a month in 2005 or $27,588 a year tax free. If the veteran was
earning $24,000 a year and now cannot work due to the totally disabling
service-connected condition, the VA compensation rate is more than
their previous wages. However, if the veteran was earning $150,000 a
year and now cannot work due to the totally disabling condition, the VA
compensation rate is not nearly enough to cover his or her actual wage
loss.
VA expects that the Veterans' Disability Benefits Commission
established by Congress in 2003 will study this issue.
Question 9. In your statement, you noted that eligibility for
disability compensation drives eligibility for other programs, such as
vocational rehabilitation. Does that serial approach to eligibility
provide an effective means of restoring the capability of veterans with
disabilities to the greatest extent possible? Would creating a more
integrated system of programs better serve that purpose?
Answer. Recently there has been an increased focus on the seamless
transition of service members leaving military service and entering the
civilian world. The provision of benefits, including vocational
rehabilitation benefits, has been integrated into the process early on.
Regional office employees visit injured service members at their local
military treatment facilities to provide information about the VA
benefits and services available. Where possible, vocational
rehabilitation and employment (VR&E) staff meet with injured service
members while they are still on active duty to begin the vocational
assessment and counseling process. VR&E and veterans' service center
staffs work closely together to expedite a memorandum (temporary)
rating which projects a 20 percent or greater service-connected rating.
This memorandum rating provides the vocational rehabilitation counselor
with the authority to evaluate a service member and to write a plan for
vocational rehabilitation services prior to making a final compensation
determination.
VA partners with the Department of Defense (DoD) and the Department
of Labor to conduct transition assistance program workshops to provide
comprehensive veterans' benefits and program information to service
members. In addition, VA conducts disabled transition assistance
program workshops to provide information about disability benefits and
vocational rehabilitation to those service members who could
potentially be medically discharged or have a service-connected
disability.
In addition, a memorandum of understanding (MOU) between DoD and VA
for the purposes of defining data sharing between the departments is
currently in the concurrence process. This MOU establishes the
respective responsibilities and authorities of DoD and VA to share data
as defined by the Health Insurance Portability and Accountability Act
(HIPAA). The MOU describes those circumstances in which it is
appropriate to share protected health information and other
identifiable information between the departments.
Question 10. One key measure of performance that VA tracks and
reports with regard to all rating claims is the ``average number of
days to complete.'' Does VA track separately the average number of days
to complete rating claims that are processed through special units or
programs, such as the claims processed through the Benefits Delivery at
Discharge initiative.
Answer. VBA does track the ``average days to complete'' for the
benefits delivery at discharge (BDD) program. In most cases, disabled
service members participating in the BDD program begin receiving VA
disability compensation benefits within 60 days of their separation
from active duty.
Question 11. As a complicating factor of, and a partial explanation
for, a rapidly growing disability compensation program, your testimony
cites the 110 diseases that are presumptively related to special
military service. How many service-connected ratings has VA awarded
since fiscal year 2000 on the basis that diseases were presumptively
related to service?
Answer. Data identifying disabilities granted on a presumptive
basis is available only for decisions rendered on or after May 2003.
With the full use of rating board automation 2000 (RBA2000), one of the
VETSNET applications, VBA is now capturing and retaining greater levels
of detailed information on disability determinations. For the timeframe
May 2003 through May 2005, VBA identified a total of 89,344 rating
decisions granting presumptive service connection for 94,411
disabilities to 82,378 veterans.
Question 12a. I understand that VA has the authority, in individual
cases, to rebut the presumption that a presumptive disease is related
to special military service. Does VA keep track of how frequently it
rebuts a presumption of service connection?
Answer. VBA does not track how frequently it rebuts a presumption
of service connection. VBA believes it to be exceedingly rare.
Questions 12b and 12c. Does VA request evidence that it believes
exists that may rebut a presumption of service connection?
Does VA solicit medical opinions about presumptive conditions that
may be explained by post-service events?
Answer. In response to parts B and C of this question, VA
decisionmakers, if put on notice that evidence may exist that would
rebut the presumption, may request such evidence from the claimant or
may request a medical opinion. VA's policy as stated in 38 CFR
Sec. 3.103(a) is that, in proceedings before VA, 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. VA
regulations require the claimant to cooperate fully with reasonable
attempts to obtain relevant records and to attend examinations that are
deemed necessary. Title 38 CFR Sec. 3.307(d)(1) provides that evidence
that may be considered in rebuttal of service incurrence of a
presumptive disease will be ``any evidence of a nature usually accepted
as competent to indicate the time of existence or inception of a
disease and medical judgment will be exercised in making determinations
relative to the effect of intercurrent injury or disease.
Question 13a. Your testimony notes that almost 2.6 million veterans
are receiving disability compensation today, more than at any time in
U.S. history. I understand that a veteran may, at any time, file a
claim to increase a service-connected rating if the veteran believes
that the condition has worsened. Conversely, VA may require that a
service-connected veteran be re-examined to determine if the effects of
a
service-connected disability have improved or still exist, thereby
necessitating a decreased rating. What is VA's current policy on
requesting that veterans appear for reexamination?
Answer. VA's policy on requesting re-examinations is stated in our
regulations, 38 CFR Sec. 3.327. In general, that provision states that
re-examinations, including periods of hospital observation, will be
requested whenever VA determines that there is a need to verify either
the continued existence or the current severity of a disability.
Generally re-examinations will be required if it is likely that a
disability has improved or if the evidence indicates that there has
been a material change in the disability or that the current rating may
be incorrect.
The decision maker has discretion to request a re-examination
between 2 years and 5 years after the initial examination or any other
scheduled or future examination; however, re-examination can be
scheduled by a VA decisionmaker within a shorter period of time. One
example cited in the regulation is that a pre-stabilization rating
requires re-examination within the second 6-month period following
service. Certain cancers also have a 6-month future examination
schedule.
The regulation also provides guidance on when a future examination
should not be requested. A future examination should not be requested
when a disability is established to be static or persisting without
material improvement for a period of 5 years or more. When disability
is permanent with no likelihood of improvement, re-examination is also
inappropriate. Under the regulations, re-examinations should also not
be ordered when there is only a minimum rating in place or when a
combined rating would not be affected by reduction of the rating for a
particular disability. For example, if a disability was reduced from 10
percent to 0 percent this might not reduce a combined evaluation. The
regulations instruct that VA not re-examine veterans over 55 years of
age for improvement except in unusual circumstances.
Question 13b. Does VA track the results of these re-examinations?
Answer. VA does not track and analyze the results of re-
examinations in any systematic way. VA does generate examination
reports, and these would be associated with the claims folder of the
person who is re-examined.
Question 13c. How many veterans has VA requested appear for
reexamination since fiscal year 2000? Is that a decline over previous
periods?
Answer. For the period October 1999 through May 2005, VBA scheduled
95,899 routine future examinations. This represents a decline from the
number of re-examinations scheduled in fiscal year (FY) 1997 through
fiscal year 1999.
Question 13d. Because of the growing number of original and repeat
claims, has VA been reluctant to add to that workload by requesting
that veterans appear for re-examination?
Answer. In response to a recommendation by the VA Claims Processing
Task Force, VBA temporarily requested that decision makers in the field
apply a longer future examination suspense period because of workload
considerations. However, VA resumed establishing the normal time
periods for re-examinations in fiscal year 2004.
__________
Responses to Written Questions Submitted by Hon. Larry E. Craig
to Robert V. Chisolm
Question 1a. Would attorneys be limited to charging fees on a
contingent basis?
Answer. Contingent fee agreements would seem to be the most
practical solution. First, many veterans lack the money to pay either a
flat fee or an hourly fee. That is of course why the veteran is usually
seeking disability compensation and similar benefits. Second, Congress
has already provided for the use of contingent fees in the present
version of 38 U.S.C. Sec. 5904. Contingent fees have the additional
benefit of linking the attorney's fee to success on the veteran's
claim. If the veteran does not receive an award of past-due benefits,
the attorney will not be paid. This also incentivizes the attorneys to
learn this area of the law. Finally, Congress has provided that Social
Security applicants can hire attorneys on a contingent-fee basis.
However, NOVA recognizes there may be a practical problem of
contingent fees in situations where the benefit the veteran is seeking
may not be a monetary benefits such as a vocational benefit, an offset
issue or a waiver of an overpayment. In these instances, it might be
appropriate to permit a fee other than a contingent fee.
Question 1b. Would the current authority of the U.S. Court of
Appeals for Veterans' Claims and the Board of Veterans' Appeals to
review the reasonableness of attorney fees provide adequate protection
for veterans against being charged unreasonable fees?
Answer. Under the present system, when an award of past due
benefits is made at the Regional Office and there is an attorney fee
contract, the Regional Office will make the initial decision regarding
entitlement to a fee. If the veteran does not agree with that decision
of the Regional Office he can file an appeal to the Board of Veterans'
Appeals. In addition, the Veteran can ask the Board at any time to
review a fee agreement for reasonableness directly. Thus, there are two
separate avenues for the veteran to have a fee agreement reviewed.
Finally, for cases filed in Court, the CAVC has the power to review a
fee agreement on its own or on the motion of either party. For these
reasons, NOVA believes the current system is adequate for reviewing fee
agreements.
Question 1c. What other measures could be taken to ensure only
reasonable fees would be charged, particularly for services provided to
veterans at the regional office?
Answer. Answer not provided.
Question 2. You testified that attorney representation throughout
the VA adjudication and appeal process would help ensure that veterans
receive all benefits to which they are entitled. On the other side of
the coin, particularly considering the increasing number of claims
being filed and the trend of an increasing number of claims involving
numerous disabilities, would attorney representatives have an ethical
obligation to counsel their clients against filing claims that may not
be meritorious?
Answer. The American Bar Association's Model Rules 1.1 regarding
competence; 1.3 regarding diligence and 3.1 regarding meritorious and
the parallel State provisions impose an ethical obligation upon an
attorney to examine a claim for its merit and to counsel the client
against filing a claim if it is frivolous and without merit. Moreover,
as practical matter an attorney working on a contingent basis is going
to counsel a veteran against filing a frivolous claim. Thus, the
combined effect of the ethical obligation and the practical
considerations of working on a contingent basis necessarily would mean
a veteran's claim would be screened for merit.
Question 3. You also recommended that Congress amend 38 U.S.C.
Sec. 7105 to eliminate the requirement that a claimant submit a
Substantive Appeal (or Form 9) in addition to filing a Notice of
Disagreement (NOD) in order to perfect an appeal to the Board. Under
current law, the filing on an NOD triggers certain actions by the
regional office. Under the scenario that you have proposed, what means,
if any, would VA have to determine if a claimant wishes to continue
with an appeal to the Board after the VA has taken action in response
to an NOD?
Answer. Once an NOD is filed, the burden should not be on the
veteran to show that he wants to continue the appeal. The burden should
be on the VA to show that he does not want to appeal. Hence the case
should be sent to the Board within some mandatory timeframe once the
NOD is filed. If the veteran is satisfied with the action the VA has
taken after the filing of the NOD, the VA could implement a procedure
allowing the veteran to withdraw his appeal after filing the NOD. But
any such procedure should permit the veteran to revoke his withdrawal
within 1 year to ensure that any perceived withdrawal is truly
voluntary.
__________
Response to Written Questions Submitted by Hon. Larry E. Craig
to Rick Surratt
Questions 1a-1b. In the VA Office of Inspector General's May 19,
2005, report, it was emphasized that the VA Schedule for Rating
Disabilities is based on a 60-year-old model that does not reflect
modern concepts of disability. If the disability system is not based on
``modern concepts of disability,'' then on what is it based?
If the disability system is outmoded, how do we know whether we are
paying veterans enough, or too much, disability compensation?
Answer. The VA Office of Inspector General (OIG) raised several
issues in connection with its effort to identify the causes of
substantial variations from State to State in the average annual
compensation payments of veterans of those States. Although somewhat
tangentially linked to the factors underlying the variances, that is,
demographic variances and rating practice variances, the OIG raised
questions as to whether the VA's Schedule for Rating Disabilities
accords with ``modern concepts of disability.''
Parroting the concerns raised by various other critics, OIG
observed that the rating schedule is based on a 1945 model (the 1945
edition of the rating schedule) that itself is founded on a concept of
disability measurement that dates back to 1919 (average impairment of
earning capacity). According to the view OIG adopted from others, the
last major modification to the rating schedule occurred in 1945, when
it was revised to reflect advances in medicine, science, and technology
and to add new coding and indexing for disabilities. Although OIG
acknowledged VA has, in the past few years, systematically revised most
of the schedule to incorporate current medical terminology and revise
the rating criteria to reflect advances in medicine, OIG stated ``these
more recent revisions have not changed the basic relationship between
disabilities and average earnings impairment established in the 1945
rating schedule.'' The OIG cited a concern previously raised about the
appropriateness of use of average impairment rather than the
``individual veteran's specific impairment in earning capacity'' or
``actual earnings or income'' as the basis for rating disabilities.
Somewhat different from basing compensation on the individual veteran's
actual earnings or income, the OIG repeated a familiar theme from at
least one outside critic of the schedule that the ratings should be
based on ``earnings-based estimates of economic impairment associated
with specific service-connected disabilities.'' However, the OIG also
cited a recommendation from another study that the rating schedule ``be
revised based on factual data to ensure it reflected the average
reduction in earning capacity.'' In short, the OIG cited a common
complaint that the schedule needs ``major restructuring'' based on a
variety of different views of what exactly is wrong with the current
schedule.
Though admittedly imperfect, the current rating schedule is the
product of perhaps the most extensive, longstanding, and enduring
experience in disability assessment by any agency or authority.
According to statute, the schedule is based on what has proven to be
the most practical and equitable standard for gradation of disability
among military veterans with a wide diversity of vocational backgrounds
and variations in impairment from diseases and injuries. It has been
adjusted according to experience rather than in reaction to untested
notions urged from time to time by outside critics who have no in-depth
knowledge of the schedule or experience with disability evaluation.
Although historical information indicates various provisions for
benefits based on graded, or partial, disability date back to the Civil
War period, the basic concept of today's disability rating schedule was
established in the War Risk Insurance Act of October 6, 1917. Where
prior provisions resulted in lack of uniformity, the new schedule was
to employ an average impairments standard. Section 302 of the Act
provided:
A schedule of ratings of reductions in earning capacity from
specific injuries or combinations of injuries of a permanent nature
shall be adopted and applied by the bureau. Ratings may be as high as
100 per centum. The ratings shall be based, as far as practicable, upon
the average impairments of earning capacity resulting from such
injuries in civil occupations and not upon the impairment in earning
capacity in each individual case, so that there shall be no reduction
in the rate of compensation for individual success in overcoming the
handicap of permanent injury. The bureau shall from time to time re-
adjust this schedule of ratings in accordance with actual experience.
This provision was modeled somewhat on the emerging workers'
compensation program, which provided payments based on either
individual loss of earnings due to disability or loss of earning
capacity as a measure of presumptive need. It should be noted that the
statute then, at it does today, referred to disability from
``injuries'' and included no reference to diseases. See 38 U.S.C.A.
Sec. 1155 (West 2002). This is perhaps because it was modeled on
workers' compensation programs that had at that point not embraced
coverage for occupational diseases. However, the Act provided that the
term ``injury'' included disease.
While the ``average impairments of earning capacity'' standard of
the rating schedule authorized under the War Risk Insurance Act was
based on medical assessments of disability, a rating schedule
authorized by legislation enacted in June 1924 experimented with
incorporation of occupational factors into disability ratings. Section
202(4) of the World War Veterans' Act, 1924, provided that the ratings
would be based, as far as practicable, upon the average impairments of
earning capacity resulting from injuries in civil occupations ``similar
to the occupation of the injured man at the time of enlistment and not
upon the impairment in earning capacity in each individual case.''
Under this concept, the percentage ratings for the medical or
functional impairments were modified by values representing
occupational variants so that a disability at a given level would be
rated differently for veterans with different pre-service occupational
histories. Many veterans had no pre-service occupation, and the scheme
proved impractical for a variety of other difficulties concerned with
accurately classifying occupational characteristics and assessing the
effect of mental and physical disabilities upon persons with these
varying factors. Instead of grades of disability in multiples of 10
percent, this schedule provided for ratings in multiples of 1 percent.
Rather than improve upon the prior standard, this attempt to add
precision added complexity, unforeseen problems, and unintended
consequences. With the next version of the rating schedule, the scheme
was abandoned, and VA reverted to the average person basis for ratings.
With the first and second editions of the 1933 rating schedule,
established under authority of Veterans' Regulation No. 3 and No. 3(a),
the ratings were to be based, as far as practicable, upon average
impairments in earning capacity. The first edition, issued in
accordance with Veterans Regulation No. 3 (March 31, 1933), provided
for five grades of disability, 10 percent, 25 percent, 50 percent, 75
percent, and 100 percent. The second edition, issued in accordance with
Veterans Regulation No. 3(a) (June 6, 1933), provided for 10 grades of
disability, from 10 percent to 100 percent.
Under the authority in Veterans Regulation No. 3(a), the VA
Administrator issued in 1945 a readjustment of the 1933 rating schedule
to be known as the 1945 edition. Though the ratings from the 1933
schedule were reorganized and given new coding, many of the percentage
ratings were the same or only slightly different from those in the 1933
schedule. The authority for the rating schedule in Veterans Regulation
No. 3(a) was later codified in statute without substantive change.
In 1957, VA issued a reprint of the 1945 edition with all
extensions (changes and additions) through January 16, 1957. With that
publication, it was ``planned to readjust the schedule, page by page,
or section by section, to incorporate the results of medical advances
and the experience of the Veterans Administration.'' In his July 20,
1971, report to Congress entitled Economic Validation of the Rating
Schedule,'' the VA Administrator noted there had been 15 revisions
since issuance of the 1957 Loose Leaf Edition of the schedule. The
Administrator explained:
It was left to the Administrator to determine what is meant by
``the average impairments of earning capacity.'' Its meaning was
developed within the Veterans' Administration as a result of studies
and conferences undertaken by rating personnel, mostly medical, as well
as physicians in the Department of Medicine and Surgery [now the
Veterans Health Administration], and other VA offices. It can be said
that the rating schedule's description of disability and its evaluation
represents a distillate of informed opinion with many compromises among
the views of the various consultants. Committee on Veterans' Affairs,
VA Report, Economic Validation of the Rating Schedule 16 (Comm. Print
No. 109 1971) [hereinafter ECVARS].
Between 1971 and 1988, VA made changes to most of the individual
sections dealing with the individual bodily systems. In 1988, the
United States General Accounting Office, now the Government
Accountability Office (GAO), found that VA needed to undertake a more
comprehensive update of the medical criteria in the rating schedule.
GAO's recommendations stated:
To better ensure that the rating schedule serves as a practical
tool in assigning uniform disability ratings to veterans, GAO
recommends that the Administrator:
<bullet> Prepare a plan for a comprehensive review of the rating
schedule and, using the results of the review, revise medical criteria
accordingly.
<bullet> Implement a procedure for systematically reviewing the
rating schedule to keep it up-to-date in the future.
VA agreed to perform a methodical review and revision of the rating
schedule by body system and agreed to establish a procedure for
systematic review thereafter on an ongoing basis. As a result, the next
major overhaul of the rating schedule began in 1991. VA developed a
plan to review and revise the schedule section by section. Since then,
VA has completed the laborious process through promulgation of final
regulatory changes for most of the 15 body systems and has proposed
rules outstanding for visual disabilities, leaving only one complete
bodily system and part of two other systems to be addressed.
It should be noted here, incidentally, that scientific advances in
treatment do not necessarily call for revision of the rating schedule
because scientific advances do not change the pathology and basic
characteristics of the diseases. Such advances may improve therapies
and simply mean that the symptoms are more responsive to treatment
under some or most circumstances, in which case the veteran's
disability should be rated lower under the existing criteria. Improved
treatments do not change the range of possible degrees of disability or
remove the possibility that other cases will still be encountered that
meet the criteria for the ratings reflecting poorer responses to
treatment. However, improved treatment methods and therapies do often
shorten convalescent periods, and VA has adjusted the rating schedule
to shorten the time for which it pays post-surgical and convalescent
ratings.
With the publication of each revision of sections of the rating
schedule in the Federal Register, VA explained that it was updating
that portion of the schedule to ensure that it uses current medical
terminology, unambiguous criteria, and that it reflects medical
advances that have occurred since the last review. Despite the fact
that VA followed GAO's recommendation, GAO now urges that VA develop an
earnings-based rating schedule, and others who do not understand the
issue have readily subscribed to the superficial view and mistaken
assumption that ``average impairments of earning capacity'' means
average wage loss attributable to disability.
Contrary to OIG's assertion that today's rating schedule is based
on a 60-year-old model, the rating schedule is actually based on a much
older standard for disability measure, that is, average impairment of
earning capacity, but its longevity does not mean the standard no
longer has utility. Indeed, it demonstrates to the contrary. Experience
has shown this time-tested standard to be the best available for fair
and practical evaluation of disability. Moreover, it seems clear that
Congress intended that VA adopt a schedule of ratings based on medical
judgments as to the average effect on earnings capacity that can be
expected for given injuries or diseases existing at various degrees,
and never contemplated that it be based on individual or average loss
of earnings. Several points support this view as to Congressional
intent, and practicality, fairness, and experience demonstrate that
this congressional intent continues to be the best solution to the
assessment of veterans' disabilities.
In 1917, when Congress first provided for a rating schedule founded
on average impairment in earnings capacity, there was no data then
available to base the ratings on actual average wage loss attributable
to the numerous diseases and injuries at various grades. There was no
such system of gradation under which disabilities in society could be
classified and tabulated, and thus there was no means to correlate
various disabilities at various degrees of severity with wage levels:
There were few workmen's compensation laws in existence and almost
no data based on scientific analysis and factual studies. There was
little suitable material for guidance and training of those who were to
adjudicate cases. Lists of medical diseases upon which evaluation and
standards could be established and incorporated into the schedule were
non-existent. There were no sound scientific data available to measure
average impairments of earning capacity resulting from injuries in
civilian occupations.
ECVARS, at 11.--Because this authority for the rating schedule was
based on the ``social insurance'' principles of early workers'
compensation law, Congress was surely aware of the paucity of data of
this type, and thus did not intend that the many grades and
combinations of disabilities be based on wage loss comparisons between
disabled veterans and non-disabled workers.
Perhaps the language Congress adopted or adapted from workers'
compensation programs also reveal intent. Congress' choice of average
``impairments'' of earning capacity may be revealing. ``Impairment'' is
``[t]he fact or state of being damaged, weakened, or diminished.''
Black's Law Dictionary 754 (7th ed. 1999). When something is
``impaired,'' it is ``[d]iminished, damaged, or weakened.'' The
American Heritage Dictionary of the English Language 878 (4th ed.
2000). In workers' compensation law, impairment is often used to refer
to an abstract medical measure of disability rather than a concrete
wage loss measure of disability: ``Unlike disability, impairment
usually refers to medical function and not to earning capacity. In some
States, impairment is a purely medical condition reflecting any
anatomical or functional abnormality or loss, and may be either
temporary or permanent, industrial or non-industrial.'' Mod Work Comp
Sec. 200:2.
Workers' compensation benefits are either based on a ``medical-
loss'' or ``wage-loss'' theory: ``Disability benefits are designed to
provide compensation for the loss of earnings or earning power, and
they are usually determined on the basis of either medical loss or wage
loss theories.'' Jack B. Hood, Benjamin A. Hardy, Jr. & Harold S.
Lewis, Jr., Workers' Compensation and Employee Protection Laws 85 (4th
ed. 2005). ``A medical loss theory, dictates, for example, that in the
case of one who has lost an arm, compensation is required for the loss
of that limb regardless of whether there has been an adverse impact
upon earning capacity or lost wages. On the other hand, the wage loss
theory is based upon the idea that a person should be compensated for
loss of wages. . . .'' Id. 29.
Workers' compensation programs that pay benefits under a medical
loss theory often do so in accordance with schedules. ``[T]he award of
scheduled loss is exclusive, payable on the basis of a loss of physical
function, and is payable regardless of whether the employee has
suffered a loss in earning capacity.'' Mod Work Comp at Sec. 200:11.
A workers' compensation treatise explains the principle as set
forth by the Supreme Court of the United States:
Scheduled benefits are payable without proof of actual wage loss or
impairment of earning capacity. In effect, the schedule provides a
conclusive presumption that a worker will sustain wage loss that
justifies compensation in the prescribed amount. The Supreme Court
explained the rationale underlying the use of schedules as follows:
``The lump-sum awards for total and permanent disability under [the
Alaska] Compensation Act ignore wage losses. Whatever the employee may
have made before, whatever his wages may be after the injury, the award
is the same. To that extent it is an arbitrary amount. But it is the
expression of a legislative judgment, that on the average there has
been a degree of impairment, and whatever may be the fact in a
particular case, the lump-sum should be paid without more.'' Alaska
Industrial Board v. Chugach Electric Ass'n, Inc., 356 U.S. 320, 323-24
(1958). Joseph W. Little, Thomas A. Eaton & Gary R. Smith, Workers'
Compensation (4th ed. 1999).
With VA's rating schedule, there is a legislative judgment of what
disability rating should apply, and Congress delegated to VA the
authority to make that legislative judgment.
Such rating schedules are a practical solution to disability
assessment. With regard to Vermont's scheduled loss basis for
compensation, the Supreme Court of Vermont explained the principle
thoroughly:
[P]ermanent disability benefits are calculated solely on the basis
of physical impairment: ``(The permanent disability) statute has
arbitrarily fixed the amount of compensation to be paid for scheduled
specific injuries regardless of loss of present earning power.''
The claimant challenges the validity of these different standards
set forth in Vermont case law. He asserts that permanent disability,
like temporary disability, should be evaluated by reference to any
factor which restricts capacity for work. In support of this position,
he advances several arguments. First, he contends that the Act's use of
the word ``disability'' connotes more than physical impairment, thereby
requiring evaluation of ability to work. Second, he asserts that by
allowing compensation for unscheduled injuries, see 21 V.S.A.
Sec. Sec. 644(b), 648(20), the Act sanctions consideration of factors
other than physical injury. Third, he argues that the purpose of the
statute is to compensate for lost wages, which requires consideration
of capacity for work. Thus, he concludes that the Commissioner erred in
failing to consider the claimant's ability to work, and in relying
solely on physical impairment in setting compensation.
The claimant's arguments do not persuade us to reject our
precedent. Earning capacity is significant to the Workmen's
Compensation Act, but it performs a far different function than
envisioned by the claimant.
The claimant correctly assigns protection against wage loss as one
of the Act's purposes. The Act, however, also seeks to establish an
expedient, efficient remedy for injured workers. Simplifying the
elements of recovery is the Act's mechanism for achieving efficiency.
To be entitled to benefits, a claimant need only establish that he
suffered ``a personal injury by accident arising out of and in the
course of his employment by an employer subject to (the Act).'' 21
V.SA. Sec. 618. . . . Because resolution of these issues on a case by
case basis would impede the process, thereby delaying awards to needy
beneficiaries, the legislature has chosen a ``scheduled benefits''
system. The rate of compensation for listed injuries has been
conclusively determined in the Act. See 21 V.S.A. Sec. Sec. 644, 648.
The system still protects against wage loss, but it fulfills this aim
by awarding permanent disability benefits on the basis of physical
impairment as a means to insure against wage loss. Professor Larson
explains how a scheduled benefits system, such as Vermont's, insures
against wage loss:
(Exclusion of individual wage loss evidence) is not, however, to be
interpreted as an erratic deviation from the underlying principle of
compensation law--that benefits relate to loss of earning capacity and
not to physical injury as such. The basic theory remains the same; the
only difference is that the effect on earning capacity is a
conclusively presumed one, instead of a specifically proved one based
on the individual's actual wage-loss experience. A. Larson, Workmen's
Compensation Laws 58.11, at 10-173 to 174 (1981) (footnotes omitted).
The yardstick is general, not particular. Bishop v. Town of Barre,
140 Vt. 564, 442 A.2d 50 (1982) (citations omitted).
Obviously, VA could not use a wage-loss system for compensating
veterans to whom it awards compensation upon military discharge, and
not following civilian employment in many instances. Workers'
compensation programs use schedules that are based on medical judgments
as to impairment in earning capacity, and VA's rating schedule is not
based on an outdated concept. Suggestions that it is are based on
misconceptions.
In an adjudication system as large as VA's, simplicity is
essential. The more complex schedule that factors in occupational
variants or individual circumstances have proven counterproductive:
For reasons similar to those dictating the use of schedules,
experience indicates the desirability of keeping them as simple as
possible. The admirable urge to build into the schedule a maximum
amount of individual equity has at different times caused some States
and the veterans' program to adopt multifactor schedules which vary
awards for similar injuries in accordance with the disabled person's
occupation, age, or other factors.
The trend has been sharply away from schedules of that type. Today
only California, among workmen's compensation jurisdictions, maintains
such a schedule, and the Veterans' Administration abandoned it some
years ago. Yet proposals keep recurring for the reintroduction of
occupational variation in disability rating schedules. The logic of the
argument for such variations is attractive. The experience--that of
California has been described in detail in this paper--does not,
however, support the logic.
A persuasive case for occupational or other variations must succeed
in explaining away not only the California experience but also the
unsuccessful attempt of the Veterans' Administration to adopt the
principle.
The President's Commission on Veterans' Pensions (Bradley
Commission), Compensation for Service-Connected Disabilities: A General
Analysis of Veterans' and Military Disability Benefits, Mortality
Rates, Disability Standards in Federal Programs, Workmen's
Compensation, and Rehabilitation, Staff Report Number VIII, Part A,
H.R. Comm. Print No. 84-281, at 243 (1956) [hereinafter Bradley
Commission Report No. VIII].
In its quest for the most simple, practical, and equitable rating
schedule possible, Congress also apparently chose to base the ratings
on average impairment in earning ``capacity'' rather that average loss
of earnings: ``Actual earnings are a relatively concrete quantity. . .
. Earning capacity, however, is a more theoretical concept. It
obviously does not mean actual earnings, since the legislature
deliberately chose a different phrase for the post-injury earnings
factor.'' Joseph W. Little, Thomas A. Eaton & Gary R. Smith, supra 375.
Certainly, it would be unwise to adopt the suggestion by some, as
cited by the OIG, that veterans' disabilities should be compensated
based on individual impairment in earning capacity:
Despite the fact that no two disabilities are likely to be
precisely alike, influencing the future of the disabled persons in
exactly the same fashion, a mass compensation program cannot be
administered by attempting independent judgment in each case on the
particular and special facts which may be involved. A social insurance
program cannot be turned into a judicial system.
To achieve administrative efficacy, social insurance relies on the
``magic of averages'' to arrive at overall equity and social justice.
This means inescapably that one individual may get somewhat more and
another somewhat less than precise individual justice would indicate.
Bradley Commission Report No. VIII, at 242.
Neither would it be fair or practical to base compensation on
individual earnings or income. Again, for those veterans awarded
compensation upon military discharge, there would be no civilian pre-
injury wage for comparison with post-injury wages. Compensation, by
definition, is not a needs-based gratuity, and the level of
compensation should in no way be based on income, earned or otherwise.
A veteran who, despite service-connected paralysis and confinement to a
wheelchair, works and earns wages higher than the average wage of non-
disabled counterparts should not be denied compensation on that basis.
Moreover, some critics who call for a new rating schedule do so in the
name of improved consistency, but there would be no consistency if
veterans were compensated based on individual earnings or income. In
addition, there would be no fairness in paying a veteran who overcomes
disability less than another veteran with the same disability who has
been unable to overcome it. VA's rating schedule is built on the
principle that veterans are to be compensated as uniformly as possible
with no penalty for individual ability to overcome disability.
The history shows that, though those formulating and updating the
rating schedule may have taken some general account or notice of
changes in the American workplace, it is fairly clear that, other than
the quickly abandoned rating schedule authorized in by the World War
Veterans' Act of 1924, the ratings were not founded on any average
among the range of mental, physical, educational, and skill
requirements of jobs existing in the national marketplace. Disability
grading founded on earnings-based estimates of the effects of injuries
and diseases would be unfair to veterans because such rating criteria
would ignore the diminishment of quality of life and shortened life
expectancy from disability. Though loss of earning capacity may be the
primary basis of disability ratings, it has been recognized, and it is
particularly true in today's society, that disability adversely affects
veterans in other ways that cannot and should not be ignored. The
Bradley Commission observed that there are other compensable elements
of disability that should be recognized, such as loss of physical
integrity, loss of physical vitality, pain and suffering, social
inadaptability, and shortened life expectancy. Bradley Commission
Report No. VIII, at 134-35; ECVARS, at 16. We believe any attempt to
base ratings on wage comparisons between disabled veterans and non-
disabled persons would present many problems and inequities, which we
will not belabor here given the length of the discussion already
required to explain our answer to the question presented to us.
The recommendations cited by OIG are based on overly simplistic
views, faulty assumptions, and misunderstandings about the principles
of the VA rating schedule and ignore issues relating to the equitable
and practical bases for those principles. The proponents of radical
change themselves have no expertise in formulating disability
assessment models. Theirs is a solution in search of a problem.
Though there are areas in which VA could improve its Schedule for
Rating Disabilities, it is based on contemporary concepts of
disability; it is not outmoded. We know of no better model in other
disability programs, and in recent testimony before the Veterans'
Disability Benefits Commission, GAO conceded that it knew of no better
model. Congress has wisely rejected prior calls to change the basis of
VA's rating schedule and should continue to do so.
Question 2. The panelists joining you on our second panel during
the hearing suggested that some significant changes in the system
should be considered in order to improve its performance. Do you have
any response to their suggestions?
Answer. Yes, I think the suggestions that I did not have an
opportunity to address or to address thoroughly during the hearing
merit a response.
Judge Kenneth B. Kramer presented three recommendations:
<bullet> revision of section 5103A(d)(2)(B) of title 38, United
States Code, to make it clear that VA has an obligation to provide an
examination or obtain a medical opinion to resolve the question as to
whether a current disability is causally linked to a disability or
event of service origin;
<bullet> stationing of administrative law judges (ALJs) at VA
regional benefit offices to make the final decision on a claim for the
VA agency of original jurisdiction; and
<bullet> removal of the jurisdiction of the United States Court of
Appeals for the Federal Circuit to review decisions of the United
States Court of Veterans' Claims.
The DAV has no objection to Judge Kramer's first recommendation.
From our experience, any problems with section 5103A(d)(2)(B) are more
with VA practice than with the language of the statute itself. We
believe VA requires evidence of a link between current disability and
military service when such evidence should not be required as matter of
law, and we believe VA may well shirk its responsibility to obtain
evidence on the point when such evidence is necessary for resolution of
the claim. Evidence of a connection between current disability and
military service is not required under VA regulations when the veteran
now claims service connection for an injury in service that left
permanent residuals or claims service connection for a chronic disease
contracted or aggravated during service in the Armed Forces. See 38 CFR
Sec. 3.303(b) (2004). However, where there is a valid question as to
whether current residuals of injury are attributable to injury during
service or where there is a valid question as to whether current
disease is related to disease in service because the disease in service
was not shown by the military medical record to be chronic, expert
opinion is required to resolve the question. Actually, it was a line of
erroneous decisions by the Court that imposed a three-part test for
service connection, contrary to Sec. 3.303(b), that caused VA to
deviate from these simple principles and longstanding rules.
While having ALJs as the last decisionmakers at the VA field office
level might mean that the record development and decisions would be
better at that level, and thereby avoid some appellate workload and
many Board of Veterans' Appeals remands, we suspect that the cost would
outweigh the benefit.
Under current law, the Court of Appeals for the Federal Circuit has
jurisdiction to review decisions of the Court of Appeals for Veterans'
Claims on legal challenges but not on questions of fact. That review
has proven beneficial and has resulted in reversal--and affirmance--of
decisions of the Court of Appeals for Veterans' Claims on important
points of law. In some instances where the Court of Appeals for
Veterans' Claims chose, in its decision, to sidestep questions of law
raised, the Court of Appeals for the Federal Circuit decided the matter
and resolved the question. VA cannot appeal its own decision to the
Court of Appeals for Veterans' Claims, but, once that Court makes a
decision on a point of law in connection with an appeal brought by a
veteran, VA should have some recourse if it believes the legal point to
have been wrongly decided. Without Federal Circuit jurisdiction, VA
would have no right of appeal and would be left to petition for review
by the Supreme Court of the United States where review is granted in
only a fraction of the cases in which it is sought. The premise for
removing Federal Circuit jurisdiction was that appeals there add to the
already protracted process. However, appeals to the Federal Circuit are
not responsible for the length of time a case spends in the VA's
administrative process, and in the rare case a decision by the Federal
Circuit brings the case back within the administrative process, that is
at the election of the veteran and is preferable to an absence of
recourse beyond the Court of Appeals for Veterans' Claims. The DAV
opposes this recommendation.
Mr. Robert Chisholm, representing the National Organization of
Veterans Advocates, presented five recommendations:
<bullet> imposition of mandatory timeframes for each step in the VA
adjudication process;
<bullet> elimination of the requirement that the claimant file two
documents to obtain appellate review, the ``notice of disagreement''
and the ``substantive appeal'';
<bullet> increase in staff at the regional office level,
particularly decision-review officers;
<bullet> replacement of the Board of Veterans' Appeals (BVA) with
ALJs, or alternatively, decentralization of BVA by placing the Board
members at the regional offices; and
<bullet> enactment of legislation to permit attorneys to charge
veterans for assistance in filing claims and representation at the
regional office level
Frustration with delays have prompted recommendations from the
veterans' community that Congress impose mandatory time limits upon VA.
The recommendation sounds attractive, but its practicality is
questionable. The DAV believes the better solution is sufficient
resources and the reforms we have recommended to improve quality and
timeliness.
We have no objection to changing the process to alleviate the need
for both a notice of disagreement and a substantive appeal. However, we
believe Mr. Chisholm's recommendation is from the perspective of an
attorney and does not consider the situation in which a claimant is
unrepresented. A notice of disagreement, like a notice of appeal,
simply initiates the appellate process. VA then provides the appellant
with a statement of the case to explain the reasons for its decision.
With a complete understanding of the bases for the decision, the
appellant then files a substantive appeal to set forth his or her
specific arguments as to where VA erred. Occasionally, VA discovers its
error when it receives the notice of disagreement alleviating the need
for a statement of the case and a substantive appeal. Where a claimant
is represented, elimination of one step in the process would perhaps be
without adverse consequences.
The DAV agrees that VA needs more adjudicators. We also agree that,
on the whole, the decision review officer program has proven
successful.
The DAV opposes Mr. Chisholm's recommendation to replace BVA with
ALJs, like those of the Social Security Administration, who would be
stationed at VA regional offices, or, in the alternative, to
decentralize BVA and station its members in regional offices. From the
standpoint of an attorney whose practice is not in Washington, D.C., it
would be more convenient to have the appellate authority located at the
regional office, but it would not be beneficial for veterans or VA. The
resolution adopted by DAV's members explain the essential reasons we
oppose decentralization:
Resolution No. 182.--Oppose Regional Dispersion of the Board
of Veterans' Appeals
WHEREAS, veterans and other claimants for veterans' benefits may
appeal erroneous decisions of the various and geographically dispersed
benefit offices and medical facilities of the Department of Veterans
Affairs (VA); and
WHEREAS, inaccuracy and lack of uniformity are pervasive among the
claims decisions of the many VA field offices; and
WHEREAS, one board, the Board of Veterans' Appeals situated
adjacent to VA's central office and policymaking center in Washington,
D.C., hears all appeals; and
WHEREAS, appellants, Board members, and taxpayers derive numerous
benefits from an appellate board housed in one centralized location,
some of the more obvious of which are:
<bullet> availability of the collective expertise of the entire
board;
<bullet> professional interaction and association among Board
members and staff;
<bullet> shared and uniform training;
<bullet> common and shared goals and responsibilities;
<bullet> economies of scale from pooled resources and the most
efficient workload distribution, with the flexibility and capacity to
readjust the workload as necessary between members and support staff;
<bullet> a positive environment and employee incentives for
developing creative solutions and innovations to meet and overcome the
challenges inherent in a system of mass adjudication of claims;
<bullet> more efficient and effective centralized case management
and storage;
<bullet> more effective centralized board administration and hands-
on employee oversight; and
WHEREAS, Congress created the Board of Veterans' Appeals after
repeated failed experiments with various configurations of regional
appellate panels that were plagued by persistent inefficiencies and
problems and were proven impractical and poorly suited to properly
dispose of veterans' appeals; and
WHEREAS, indications are that consideration is being given within
certain quarters of VA to dismember the board and scatter its
decisionmakers among the VA field offices or among various regions of
the Nation; and
WHEREAS, such regional reorganization of the Board would be
extremely unwise, wholly unwarranted, and not in the best interests of
veterans or taxpayers; NOW
THEREFORE BE IT RESOLVED, that the Disabled American Veterans in
National Convention, assembled in Reno, Nevada, July 31-August 3, 2004,
categorically opposes any decentralization of the Board of Veterans'
Appeals.
We also see no benefit in replacing Board members with ALJs who
would be stationed in regional offices. ALJs perform adjudications
under the more formal procedures of the Administrative Procedure Act.
Social Security ALJs are not located in the same offices as the initial
decisionmakers, and we believe locating appellate personnel with the
adjudicators whose decisions they will review could be detrimental.
The DAV opposes Mr. Chisholm's recommendation to amend the law to
permit attorneys to charge claimants for claims assistance and
representation at the regional office level. As you know, current law
does not bar attorney representation in the initial administrative
proceedings before VA, but it does prohibit an attorney from charging
for that representation. On behalf of the National Organization of
Veterans' Advocates, Mr. Chisholm seeks amendment of section 5904 of
title 38, United States Code, to remove the prohibition against
charging veterans for claims counseling, assistance in filing benefit
applications, and representation in benefit claims at the regional
office level.
Section 5904(a) provides that the Secretary of Veterans' Affairs
may recognize attorneys for the preparation, presentation, and
prosecution of claims. However, subsection (c)(1) of that section
provides ``a fee may not be charged, allowed, or paid for services of
agents or attorneys with respect to services provided before the date
on which the Board of Veterans' Appeals first makes a final decision in
the case.''
The change NOVA seeks would not be in the best interests of
veterans for several reasons, and would be detrimental to the
administrative processes. The principal reason for the DAV's opposition
is founded in the public policy underlying the current prohibition
against charging veterans for claims assistance. Reviewing the history
of pensions provided to veterans, the Supreme Court of the United
States observed the enduring principle that this monetary assistance
should go solely for the benefit of the veterans for which they were
provided:
``Enough appears in these references to the legislation of the
Congress under the Constitution to show that throughout the entire
period since its adoption it has been the unchallenged practice of the
Legislative Department of the Government, with the sanction of every
President, including the Father of the Country, to pass laws to prevent
the diversion of pension money from inuring solely to the use and
benefit of those to whom the pensions are granted.'' United States v.
Hall, 98 U.S. 343, 354 (1879).
``The Government interest, which has been articulated in
congressional debates since the fee limitation was first enacted in
1862 during the Civil War, has been this: that the system for
administering benefits should be managed in a sufficiently informal way
that there should be no need for the employment of an attorney to
obtain benefits to which a claimant was entitled, so that the claimant
would receive the entirety of the award without having to divide it
with a lawyer.'' Walters v. National Ass'n of Radiation Survivors, 473
U.S. 305, 321 (1985).
Veterans and their dependents should not have to resort to hiring
and paying lawyers to obtain veterans' benefits to which they are
rightfully entitled. Through a variety of social programs, our Nation
unselfishly provides benefits to assist citizens disadvantaged for one
reason or another. Veterans' benefits are more than a matter of relief
provided out of generosity. Because veterans make special sacrifices,
subject themselves to extraordinary risks, and bear unusual burdens for
the benefit of the rest of us, and because we owe our very existence as
a Nation to our veterans, they earn special rights and special
treatment. Veterans, who fought for our country, should never have to
fight our Government to get the benefits our grateful citizens have
provided as a reward for veterans' sacrifices and service. It is
intended that these benefits be provided with a minimum of difficulty
for the veteran claiming them. Veterans are therefore accorded a
privileged status and are due more personal assistance from VA than
claimants receive when seeking benefits from other Government sources.
It is important, we believe, to remain mindful that veterans obtain
their benefits through an informal, nonadversarial, and benevolent
claims process, not a litigation process. The fundamental distinctions
between the VA process and litigation reflect a calculated
congressional intent and design to permit veterans to receive all the
benefits they are due without any necessity to hire and pay lawyers.
The nature and purpose of the distinctions between the VA process
and other forums are well known and understood by those who are
familiar with veterans' benefits law. Generally, veterans have the
burden of proof, but, in the VA context, that only connotes the measure
of evidence that will or will not warrant a grant of the benefits
sought. It merely means VA cannot award benefits without the existence
of evidence to reasonably confirm the veteran is entitled. Its effect
is to prevent the burden from being put on VA to disprove entitlement
when no affirmative evidence exists to show entitlement. If the burden
is not met, it is the veteran that suffers the consequences in that the
claim fails.
The difference between the meaning of burden of proof for veterans
and what burden of proof connotes in the traditional usage is much more
than an insignificant subtlety. In its broadest traditional sense, the
term includes (1) the obligation to fill the void by physically
producing enough evidence to demonstrate the issue warrants formal
consideration and (2) by producing enough evidence to convince the fact
finder of the truth of the claim. These two elements of the burden of
proof are known respectively as the ``burden of production'' and the
``burden of persuasion.'' In a judicial proceeding, if the party
asserting a claim fails to produce enough evidence to even suggest a
valid claim, the matter may be summarily decided against him or her
without necessity of full consideration of the merits. If the party's
evidence is sufficient to meet the burden of production but
insufficient to convince the decisionmaker of the truth of the facts
alleged, the party loses on the merits.
In judicial proceedings, each party must discover and physically
present to the court his or her own evidence. It is not the court's
place, nor proper role, to discover and obtain evidence for either of
the parties or itself, because the court must be impartial and
disinterested. Thus, in judicial proceedings, the burden of proof
includes both the mechanical aspect of the duty of evidence production
and the standard of persuasion upon the party having the burden of
proof. The burden of proof in the traditional usage entails much more
than is required of veterans seeking benefits.
Under a proper interpretation and application of VA law, the
veteran need only claim entitlement to a benefit, supply VA with the
basic information necessary to confirm veteran status, and inform VA of
the pertinent circumstances on which entitlement is claimed and sources
of evidence that will support the claim. VA has the duty to inform the
veteran of what facts and evidence are pertinent so the veteran can in
turn help VA identify sources of evidence. VA has the duty to assist
the veteran in obtaining available evidence. As such, the veteran has
no burden of production. For the veteran, having the burden of proof
simply means that it is he or she that bears the risk of nonpersuasion
and stands to lose if the evidence is insufficient to convince the
adjudicator of entitlement.
Two more aspects of the VA process that fundamentally distinguish
it from litigation and other administrative proceedings are the
formalities and the obligations upon the parties. In court proceedings,
the party must specify the precise legal grounds for the claim and know
the proper venue, jurisdiction, and legal authorities on which the
action rests. The parties must carefully negotiate a structured process
governed by extensive formal and complex procedural rules filled with
pitfalls and obstacles. The assistance of attorneys is essential. In
judicial or other administrative proceedings, professional legal advice
is usually required even before an action is brought; in the VA
process, its employees counsel veterans on the bases of eligibility and
their potential entitlement to the various benefits. VA will assist a
veteran in completing and filing the relatively informal application
for the benefit sought. VA personnel determine which activity has
jurisdiction and direct the claim to the proper location. VA takes the
initiative to advance the claim forward through the appropriate
procedural steps. VA will inquire of the veteran if additional
information is needed and will advise him or her of any necessity for
additional evidence, again assisting in obtaining it if the veteran
desires. Otherwise, the matter is completely in VA's hands once the
claim is filed, and the veteran has no responsibility to take any
further action to prosecute it. Congress placed the duty on VA to
ensure all alternative theories of entitlement are exhausted and all
laws, regulations, and other legal authorities pertinent to the case
are considered and applied.
Theoretically, because it is ultimately VA's duty to ensure all
pertinent law is correctly applied, a veteran should have the same
result with good representation, bad representation, or no
representation. We all know, nonetheless, that no legal system is
perfect, and veterans service organization representation is therefore
advisable so errors can be discovered, but that does not relieve VA of
the ultimate duty to ensure that all law is properly applied and all
legal theories of entitlement are explored and considered.
Therefore, it is the Government's responsibility to ensure that
veterans are given every reasonable consideration and awarded every
benefit to which they can be shown entitled. To accomplish that, we
must have an agency that is fully devoted to serving veterans. The
agency that serves veterans must do so with a sense of gratitude and
with a duty to help rather than hinder veterans seeking benefits. It
would be inconsistent with our indebtedness to veterans, our deep sense
of gratitude, and the special honor we accord veterans to make them
feel like their claims are unwelcome, require them to fight for their
benefits, or even to require them to deal with a burdensome process. It
would be shameful if a veteran seeking disability compensation for war
wounds, for example, was confronted by a passive, indifferent,
resistant, or contentious bureaucracy and was expected to have to pay a
lawyer to get what was due from the Government. We firmly believe it
would be inappropriate for us to condone a situation in which lawyers
were needed to obtain veterans' benefits. We believe it would be
equally inappropriate for us to agree to allow lawyers to interject
themselves into the claims process so they could charge veterans for
assistance in obtaining benefits.
On the issue of the inappropriateness and lack of need of attorney
representation in the initial administrative proceedings, our view from
a practical and fairness standpoint, is similar to the view of
Congress:
``There would seem to be no need for the assistance of an
attorney in order to initiate the claims process by completing
and filing an application. Moreover, even if the initial
decision is adverse, the Committee believes that it may be
unnecessary for a claimant to incur the substantial expense for
attorney representation that may not be involved in appealing
the case for the first time to the BVA. The claimant may well
prevail, as many claimants currently do, without legal
representation when the case is first before BVA.'' S. Rep. No.
100-418, at 63-64 (1988).
Obviously, no benefits delivery system can be perfect. Admittedly,
VA has fallen far short of serving veterans in the manner intended. VA
sometimes denies veterans' claims erroneously, even arbitrarily.
Veterans sometimes do have to fight an aloof bureaucracy to obtain what
they are clearly due. However, if we agreed to permit attorneys to
charge veterans fees for claims assistance, that would be an
abandonment of the effort to force VA to reform and to force the system
to work as intended. It would be viewed as a concession that the system
cannot be made to fully work for veterans. With that concession, all
efforts by Congress to force VA to perform as it was intended would
likely cease. There would likely be an acceptance of circumstances and
a system in which it was expected that veterans would have to pay
lawyers and fight to obtain their benefits. VA would no longer grant
benefits without being prodded to do so. Veterans would come to be
treated as ordinary litigants rather than a special group entitled to
special treatment.
As we have already experienced somewhat from judicial review and
involvement of lawyers in that connection, the informal pro-veteran
process would gradually evolve into a formal, legalistic, and
adversarial one. If that were ever to occur, the probable result would
be an increase in money spent on administration because of the back and
forth that would take place between lawyers and VA on cases. In
addition, VA would quite probably have to devote a substantial amount
of its scarce resources--including a whole legion of employees--to the
review of attorneys' fee agreements. The result would be increased
administrative costs, perhaps being paid for by a reduction in benefits
elsewhere, and more benefits diverted away from the intended
beneficiaries into the pockets of attorneys and agents. Agreeing to
that would constitute an abandonment of our responsibility to work for
the best interests of veterans.
Our position is one based entirely on the goal of preserving the
special status veterans enjoy and promoting sound public policy.
Veterans service organizations have nurtured the system from its
inception. We have an investment in and appreciation for the system
that attorneys simply do not have. That proprietary interest in the
system ensures that, though we will aggressively and fully prosecute
veterans' claims, we will not do so blindly and with total disregard of
the consequences for the system just to gain some perceived advantage
for an individual claimant. On the other hand, lawyers handling
individual claims will more likely ``hit and run,'' and possibly be
more inclined to resort to tactics against VA that one might typically
employ in adversarial proceeding to intimidate, overwhelm, or wear down
an opponent. It would be difficult to criticize such an approach when
it is billed as zealous representation. The open VA procedures designed
for more gentle, gracious, and paternalistic dealings with claimants
would probably have to be replaced with formal safeguards and
restrictive rules to define prohibited practices and protect VA against
such methods by zealous representatives. Veterans would lose the
special considerations they are now accorded and lose rather than gain
procedural advantages. Ultimately, it would be a ``lose-lose''
situation. The Court recognized the probable adverse effects in
National Ass'n of Radiation Survivors:
There can be little doubt that invalidation of the fee limitation
would seriously frustrate the oft-repeated congressional purpose for
enacting it. Attorneys would be freely employable by claimants to
veterans' benefits, and the claimant would as a result end up paying
part of the award, or its equivalent, to an attorney. But this would
not be the only consequence of striking down the fee limitation that
would be deleterious to the congressional plan.
A necessary concomitant of Congress' desire that a veteran not need
a representative to assist him in making his claim was that the system
should be as informal and nonadversarial as possible. . . . The regular
introduction of lawyers into the proceedings would be quite unlikely to
further this goal. Describing the prospective impact of lawyers in
probation revocation proceedings, we said in Gagnon v. Scarpelli, 411
U.S. 778, 787-788, 93 S.Ct. 1756, 1762, 36 L.E.d.2d 656 (1973):
``The introduction of counsel into a revocation proceeding will
alter significantly the nature of the proceeding. If counsel is
provided for the probationer or parolee, the State in turn will
normally provide its own counsel; lawyers, by training and disposition,
are advocates and bound by professional duty to present all available
evidence and arguments in support of their clients' positions and to
contest with vigor all adverse evidence and views. The role of the
hearing body itself . . . may become more akin to that of a judge at a
trial, and less attuned to the rehabilitative needs of the individual.
. . . Certainly, the decisionmaking process will be prolonged, and the
financial cost to the State--for appointed counsel, . . . a longer
record, and the possibility of judicial review--will not be
insubstantial.''
We similarly noted in Wolff v. McDonnell, 418 U.S. 539, 570, 94
S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974), that the use of counsel in
prison disciplinary proceedings would ``inevitably give the proceedings
a more adversary cast. . . .''
Knowledgeable and thoughtful observers have made the same point in
other language:
``To be sure, counsel can often perform useful functions even
in welfare cases or other instances of mass justice; they may
bring out facts ignored by or unknown to the authorities, or
help to work out satisfactory compromises. But this is only one
side of the coin. Under our adversary system the role of
counsel is not to make sure the truth is ascertained but to
advance his client's cause by any ethical means. Within the
limits of professional propriety, causing delay and sowing
confusion not only are his right but may be his duty. The
appearance of counsel for the citizen is likely to lead the
Government to provide one--or at least to cause the
Government's representative to act like one. The result may be
to turn what might have been a short conference leading to an
amicable result into a protracted controversy. . . .''
``These problems concerning counsel and confrontation inevitably
bring up the question whether we would not do better to abandon the
adversary system in certain areas of mass justice. . . . While such an
experiment would be a sharp break with our tradition of adversary
process, that tradition, which has come under serious general challenge
from a thoughtful and distinguished judge, was not formulated for a
situation in which many thousands of hearings must be provided each
month.'' Friendly, ``Some Kind of Hearing,'' 123 U.Pa.L.Rev. 1267,
1287-1290 (1975).
Thus, even apart from the frustration of Congress' principal goal
of wanting the veteran to get the entirety of the award, the
destruction of the fee limitation would bid fair to complicate a
proceeding which Congress wished to keep as simple as possible. It is
scarcely open to doubt that if claimants were permitted to retain
compensated attorneys the day might come when it could be said that an
attorney might indeed be necessary to present a claim properly in a
system rendered more adversary and more complex by the very presence of
lawyer representation. It is only a small step beyond that to the
situation in which the claimant who has a factually simple and
obviously deserving claim may nonetheless feel impelled to retain an
attorney simply because so many other claimants retain attorneys. And
this additional complexity will undoubtedly engender greater
administrative costs, with the end result being that less Government
money reaches its intended beneficiaries. 473 U.S. at 323-26.
Undoubtedly, an attorney may very well provide some benefit in an
individual case. Our consideration involves the good of the whole,
however. We do not see how permitting attorneys to charge veterans for
claims assistance could be beneficial for veterans or the system
generally. Apart from the likely adverse effect discussed above where
it will come to be accepted that benefits cannot be obtained without a
fight and the services of a lawyer, lawyers are unlikely to have any
other beneficial effect upon the system. Unlike nonprofit veterans
organizations, which work for the good of the system and represent
veterans free and without regard to the prospects or amount of monetary
benefits, lawyers will participate for the purpose of earning fees.
Because they will be representing veterans for a fee, they may only
assist veterans in fee-producing claims, leaving veterans on their own
in other matters. For example, it is unlikely that lawyers will be
willing to spend great amounts of time counseling veterans, just
listening to their problems, or helping them resolve all sorts of
difficulties with VA that do not involve awards of monetary benefits.
Veterans service organization representatives, whose sole function is
assistance to veterans and their dependents, do these things every day.
Veterans service organization representatives are not ``on the clock''
for purposes of charging fees and are therefore less concerned with
taking a little additional time to explain matters and discuss
veterans' concerns. Much of what service officers gladly do for VA
claimants would not be fee producing if done by attorneys, unless, of
course, the veteran was foolish enough to pay an hourly fee for this
service.
It is unlikely that an attorney would be willing to assist a
veteran in obtaining service connection for a condition that would only
be rated 0 percent and would therefore result in no award of benefits.
It is unlikely that an attorney would assist a widow in applying for a
burial flag or VA headstone. It is unlikely that an attorney would
assist a widow in a claim for a $300 burial allowance, or a veteran in
obtaining the small annual clothing allowance. If an attorney did
provide assistance with such matters, his or her fee might consume most
or all of the benefit, or actually cost the claimant a substantial sum
where the benefits had no monetary value. A veteran should not have to
pay to get assistance in completing an application, especially when the
benefit might be one about which there is no dispute as to entitlement.
A lawyer might charge to help file an application where legal
representation per se may never be necessary. In any event, VA benefits
should go to the intended beneficiaries and should not come to be
viewed as a source of fees for the legal profession.
It is understandable why some attorneys advocate changing the
system. Perhaps veterans who advocate it do so under the belief that
they would generally receive better representation by attorneys. Data
on the subject simply do not support that belief. Attorneys presumably
choose only the cases they believe more meritorious, where most
veterans service organizations essentially represent any claimant and
do not refuse representation in cases merely because of a lower
likelihood of favorable outcome. Nonetheless, historically and
currently, attorneys still have no greater success rate in BVA appeals,
for example, than veterans service organization representatives.
Indeed, the few veterans service organizations that are selective in
who they represent have substantially higher success rates than
attorneys, and even veterans service organizations that represent
essentially any claimant that requests representation, such as DAV,
generally have greater percentages of allowances on appeal than
attorneys. In 2004, the average BVA allowance rate among veterans
service organizations was 19.38 percent. The allowance rate for
attorneys was 16.6 percent. All but one VSO had higher allowance rates
than lawyers.
These are some of the reasons for our position. We believe the
value of preserving the beneficial aspects of the current VA system and
maintaining the special status veterans enjoy outweigh any benefit of
permitting individual veterans to choose attorney representation. In
public policy considerations, the right of personal choice is, of
course, favored except when the good of the whole clearly outweighs any
benefit to the individual or the value of individual choice.
Those who understand and appreciate the unique nature and purpose
of the VA process also know that the formalities necessary to ensure a
level playing field and referee proceedings between competing
adversaries are not only superfluous to the VA process but actually
operate to create inefficiencies and inhibit justice.
Thus, the foreseeable consequences of introducing lawyers in the
administrative process are far reaching and almost uniformly
undesirable. No positive tradeoff would result. It would not only, on
the whole, be detrimental to the administrative claims processing
system and the veterans it serves, it would decrease the efficiency of
the system and ultimately cost taxpayers more, with no benefit except
as a new source of fees for lawyers.
Our goal is to put veterans' benefits in the pockets of veterans;
NOVA's goal is to put veterans' benefits in the pockets of attorneys.
We are taking a public policy position for veterans; NOVA is taking a
public policy position for lawyers. We believe it would be a major
mistake for Congress to change the law to permit attorneys to charge
veterans for assistance in filing claims and prosecuting claims in the
initial administrative proceedings.
Question 3. It is my understanding that VA decides some disability
compensation claims on a priority basis. What is DAV's' position on the
appropriateness of providing priority to certain veterans' disability
claims?
Answer. With the situation of claims backlogs, we believe it is
appropriate for VA to give some claims priority, such as those of
elderly veterans pending for a long time. As you know, section 7107 of
title 38, United States Code, authorizes BVA to advance the case of a
seriously ill veteran on the docket. As a general rule, we believe VA
should decide all claims in such a timely fashion as to make priorities
unnecessary. Although the work of VA's ``Tiger Teams'' in reducing the
backlog of certain claims is commendable, the necessity for Tiger Teams
is a reflection of the poor functioning of the system overall.
Questions 4a-4b. Currently, priority access to VA health care is
given to combat theater veterans who are within 2 years of their
service discharge date. Does DAV support that priority access?
Would DAV support the same kind of priority for disability claims
filed by combat veterans, or any recently separated veterans, who are
within 2 years of their service discharge date?
Answer. In the situation that exists, DAV supports priority access
to health care for recently discharged combat theater veterans. We
believe these veterans should be given needed health care promptly to
aid in their successful transition to civilian life. However, this
practice raises some concerns. Though we approve of the preferences
given to combat veterans in connection with proof of claims, we
continue to be concerned with other practices that distinguish between
combat and non-combat veterans. In today's circumstances, many members
of the Armed Forces are exposed to risks similar to those in combat
theaters. Also, with the insufficient resources provided for veterans'
medical care, we are concerned that care for older veterans must be
delayed to give priority to recently discharged combat theater
veterans. The better solution would be to provide VA with enough
resources to enable it to treat all veterans promptly.
Veterans who file claims at military discharge centers receive
faster service on their claims. This is efficient, and we support it.
Veterans who file claims with regional offices sometime after discharge
should have no priority, however, because that would be unfair to the
other veterans whose claims would be delayed as a result. Again, if VA
had sufficient resources, all claims could receive the prompt attention
they deserve.
Question 5. At the hearing, I asked Admiral Cooper about the degree
of collaboration there is between VBA's Rating Veterans Service
Representatives and Vocational Rehabilitation Counselors prior to a
veteran receiving a Total Disability due to Individual Unemployability
(TDIU) rating. Does DAV believe that a veteran should receive
employment counseling and, if necessary, training through the
Vocational Rehabilitation & Employment program prior to being assigned
a TDIU rating?
Answer. Some veterans who have become unable to work because of
their service-connected disabilities could be trained for other
employment. We believe most of these veterans would prefer earning a
wage to living on the very modest monthly compensation paid to totally
disabled veterans. Many other veterans are too disabled to work,
however, and attainment of a vocational goal is simply not feasible.
Vocational rehabilitation counselors could prescreen these veterans and
afford counseling in those cases where it appears that training is
feasible, considering the veteran's disability, age, and other factors
favorable to rehabilitation. The disability rating should not be
delayed pending this review.
As you know, section 1163 of title 38, United States Code, already
requires VA to make vocational rehabilitation counseling services
available to veterans rated totally disabled by reason of
unemployability. Under this section a veteran may attempt work without
any loss of benefits until the veteran has demonstrated an ability to
maintain employment for more than 12 consecutive months.
Questions 6a-6b. It is my understanding that a veteran's age may
not be considered in a determination of individual unemployability
(IU). Is that an appropriate limitation when considering IU claims from
veterans who are at or beyond a commonly accepted retirement age?
Should there be an age-appropriate limit on the payment of IU?
Answer. Disability compensation is an age-neutral benefit, unlike
Social Security disability benefits where a person of advanced age is
more likely to be found disabled than a younger person with the same
disability. The disability compensation program seeks to treat all
veterans the same. Age should be neither a favorable nor unfavorable
factor. Entitlement to compensation at any level should be based solely
on the nature of the disability. VA's regulation provides:
Age may not be considered as a factor in evaluating service-
connected disability; and unemployability, in service-connected claims,
associated with advancing age or intercurrent disability, may not be
used as a basis for a total disability rating. Age, as such, is a
factor only in evaluations of disability not resulting from service,
i.e., for the purposes of pension. 38 CFR Sec. 4.19 (2004).
If a veteran became unemployable at some time before normal
retirement age, the veteran will not have had the opportunity to save
for or earn retirement benefits and certainly should not have the
compensation reduced upon reaching retirement age. Also, in today's
society, many people work well beyond what was once considered
retirement age. It is to be expected that progressive disabilities will
worsen with age, and some veterans will become unemployable as they get
older. Individual umeployability is not a retirement benefit, however,
and VA's rules require evidence that the veteran became unable to work
because of service-connected disability. To be found entitled to a
total rating based on individual unemployability, a veteran must
demonstrate that cessation of work was because of the service-connected
disability. See 38 CFR Sec. Sec. 4.16, 4.18 (2004). A veteran who
claims individual unemployabilty upon normal retirement and without any
demonstrated worsening of his or her service-connected disability would
properly be denied the benefit. Nonetheless, a veteran of any age
should be awarded the benefit if service-connected disability causes
the veteran to terminate employment. Age should be a factor only with
respect to whether the veteran should be considered for vocational
rehabilitation.
______
Response to Written Questions Submitted by Hon. Larry E. Craig
to Kenneth B. Kramer
Question 1a. At the hearing, you suggested that Congress should
consider eliminating the role of the United States Court of Appeals for
the Federal Circuit in reviewing appeals involving veterans' benefits
claims. Would you please comment further on what problems you perceive
with the current judicial review structure?
Answer. The optimal structure for the judicial appeal process
should achieve the best possible balance between having as many layers
of appeal as required for the best possible decision and the need for
reaching finality of result as quickly as possible.
There can be no true dispute that the present structure, insofar as
it allows appeals to both the U.S. Court of Appeals for Veterans'
Claims (Court) and the U.S. Court of Appeals for the Federal Circuit
(FC), delays finality from a matter of months to a matter of years. As
to the latter, in some cases, such as where the Court affirms, but the
FC overturns the Court and mandates a return of the case to the VA
administrative process, the number of additional years involved could
extend to a decade. Clearly, if the sole consideration is expeditious
review, one layer of Federal Court review, rather than two, short of
the Supreme Court, will provide that result 100 percent of the time.
The question then becomes whether there is sufficient value added
as to accuracy of decisionmaking, to justify the inherent additional
time needed for review in both the Court and the FC. Judicial accuracy,
unfortunately, is really an art-form, rather than a science, and like
beauty, is in the eye of the beholder. In most situations, the winning
party believes that the decision is accurate and the loosing party
takes a contrary view.
Moreover, because accuracy is an art-form, its presence is not
usually the readily apparent clear-cut, black or white kind of stuff,
but rather is dependent on the kind of analysis involving subtle shades
of gray. And it is these subtle shades of gray which form the basis for
an ``accurate'' result to be ``distinguished'' in future cases. Whether
such a distinction justifies a different result in a different case
again rests in the eye of the beholder, whether the beholder be
litigant, judge, or academic.
As such a beholder, it is my view that judicial decisions,
sometimes under the rubric of being ``distinguished'' and sometimes
because judges are fallible, are at times not only inconsistent between
appellate courts, but inconsistent within the same court. Accordingly,
other than for perceptual purposes to the outside world and for loosing
litigants to obtain one more bite at the apple, I see little value
added in having both the Court and the FC involved in review of
veterans' cases. Even assuming that the FC is always more accurate than
the Court, a review of the FC website shows that the FC reverses the
Court in approximately 11 percent of the cases it reviews. It is
debatable whether a better result in about 1 of every 10 cases can
justify the additional delay and confusion inherent in multiple layers
of appellate review. But this debate need not be waged. Recognizing
that I am speaking as a beholder and one indeed who might be viewed as
nonobjective, it is my view, after 15 years of fulltime participation
in veterans' law, that because of the exclusive nature of its work,
many times the Court will have a greater understanding of the subject
matter and awareness of the systemic impact of its decisions on the
adjudication system than the FC. Accordingly, I would conclude that a
significant number of reversed cases should not have been reversed so
that the value-added accuracy of FC review is a much lower percentage
than that reflected on the website.
The old axiom about too many cooks spoiling the broth rings true.
Here the presence of cooks in different kitchens creates not only
delay, but confusion as to the state of the law.
Question 1b. Do you believe the current judicial review structure
affects the ability of the VA system to provide prompt, accurate, or
consistent decisions?
Answer. Yes and for the worse. Given the situation described in my
answer to Part A, the VA is often euphemistically caught between what
its supervisor, the Court, and its big boss, the FC, tells it to do.
Anyone or anything trapped in such an environment reacts with delay,
indecision and inconsistency. The VA is never sure whether the big boss
will back the supervisor or scold him. And even where the matter under
consideration is not brought to the attention of the big boss, the VA
still must contend with prior edicts of the boss that seem inconsistent
with what the supervisor is now telling it to do.
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Daniel L. Cooper
Question 1. I am intrigued by the recommendations in former Chief
Judge Kenneth Kramer's testimony, including his suggestion to improve
the claims process at the regional office level by having an
Administrative Law Judge or a Veteran's Law Judge working at the
regional office on the disputed cases. What do you think of this
proposal?
Answer. Judge Kramer made a number of recommendations at the
hearing; including placing Veterans' Law Judges (VLJs) of the Board of
Veterans' Appeals (Board) in VA regional offices. Neither the Veterans
Benefits Administration (VBA) nor the Board supports this
recommendation. The existing appeals process with layers of review was
established, in part, to ensure fairness and integrity and promote
claimant confidence in the decisions. Decentralization or
regionalization of the Board by placing VLJs at the regional offices
could affect the appearance of Board independence by creating a
perception in the minds of appellants and their representatives that
the Board is an extension of the regional office and not a separate and
independent body that exists to fairly arid impartially consider their
appeals of regional office decisions.
Decentralization or regionalization would also pose substantial
challenges to the Board in maintaining the efficiency of its
operations. Given the rapid changes in veterans law and the complexity
of the VA disability system, it is advantageous for VLJs to work in a
single location where they have the opportunity for a quick and free
exchange of ideas and information and can quickly adapt to changes in
the law. This kind of environment fosters consistency in understanding
and application of the law. Additionally, regionalization of the Board
would create logistical problems, increase expenditures for support
services and legal research resources, and make management of the case
flow and the conduct of quality reviews more difficult.
Question 2. Has VA reviewed the costs of the large numbers of
remanded decisions, and can you provide me with estimates?
Answer. VBA created the Appeals Management Center (AMC) in July
2003 to serve as a centralized processing site for appeals remanded
from the Board for further development. AMC has 87 employees and
receives approximately 18,000 remands per year. VBA currently has a
total of 26,000 remands pending, approximately 19,000 of which are at
AMC. Because of the large inventory of pending remands, an additional
46 employees now assist AMC in processing remands.
The fiscal 2005 operating budget for AMC totals $6.9 million. The
salary cost for the additional 46 employees currently assisting AMC is
estimated at $2.2 million annually.
Question 3. What is VA doing to respond to the GAO report earlier
this month raising questions about the consistency of decisionmaking in
various regional offices across the country?
Answer. On May 5, 2005, the General Accountability Office (GAO)
issued report GAO-05-655T, ``Board of Veterans' Appeals Has Made
Improvements in Quality Assurance but Challenges Remain for VA in
Assuring Consistency.'' The report concluded that VA still lacks a
systematic method for ensuring the consistency of decisionmaking within
VA as a whole. GAO did find that VA has begun efforts to understand why
average compensation payments per veteran vary from State to State. The
report also noted that in response to inquiries from the media and
members of Congress about rating variation, the Secretary of Veterans'
Affairs asked the Office of Inspector General (lG) to determine why
there are differences in VA's average monthly disability compensation
payments made to veterans living in different States. The IG made a
number of recommendations. VBA actions undertaken or planned in
response to the recommendations are summarized below:
Recommendation 1: Conduct a scientifically sound study using
statistical models of the major influences on compensation payments to
develop baseline data and metrics for monitoring and managing
variances, and use this information to develop and implement procedures
for detecting, correcting, and preventing unacceptable payment
patterns.
Actions Taken/Planned: VBA worked closely with the Office of
Policy, Planning and Preparedness to award a contract to the Institute
for Defense nalyses (IDA) in May 2005 to conduct the recommended study.
IDA has initiated work on the contract. It is estimated that the study
will take at least 18 months to complete.
Recommendation 2: Coordinate with the Veterans' Disability Benefits
Commission to ensure all potential issues concerning the need to
clarify and revise VA's Schedule for Rating Disabilities are reviewed,
analyzed, and addressed.
Actions Taken/Planned: VBA is prepared to provide the Veterans'
Disability Benefits Commission whatever information or assistance is
needed to fulfill its statutory charge. The Under Secretary for
Benefits addressed the Commission on July 22, 2005, on disability
compensation trends and developments, and on May 9, 2005, the Director
of the Compensation and Pension (C&P) Service briefed the Commission
about VA compensation and related benefits. VBA will work with the
Office of Policy, Planning and Preparedness to ensure that the
Commission has the required information and support to review, analyze,
and address all potential issues concerning the need to clarify and
revise the Schedule for Rating Disabilities.
Recommendation 3: Conduct reviews of rating practices for certain
disabilities, such as PTSD, individual unemployability (IU), and other
100 percent ratings, to ensure consistency and accuracy nationwide. At
a minimum, these reviews should consist of data analysis, claims file
reviews, and on-site evaluation of rating and management practices.
Actions Taken/Planned: VBA will review post traumatic stress
disorder (PTSD) cases adjudicated between 1999 and 2004 in which the
veteran was awarded disability compensation for PTSD at the 100 percent
rate; or was awarded 100 percent disability compensation based on a
determination of individual unemployability (IU), with PTSD as the
veteran's primary disability. These are the specific areas where the IG
found problems in VBA's processing of PTSD claims. The initial stage of
this review is underway.
Additionally, during its regularly scheduled oversight visits to
VBA regional offices, the C&P Service will review cases involving other
disabilities that received a 100 percent scheduler or IU rating. This
review will focus on whether evidence to substantiate the claim was
sufficiently developed and whether the disability evaluation assigned
was appropriate, as well as on relevant management practices.
Recommendation 4: Expand the national quality assurance program by
including evaluations of PTSD rating decisions for consistency by
regional office, and to ensure sufficient evidence to support the
rating is fully developed and documented, such as verifying the
stressor event.
Actions Taken/Planned: Using the findings from the review of the
PTSD cases, VBA will develop additional procedural guidance and
training for our decisionmakers and make appropriate systemic and
regulatory changes to improve the consistency and accuracy of our
decisions. We will also analyze rating and claims data from VBA claims-
processing systems on an ongoing basis to identify any unusual patterns
or variance by regional office or diagnostic code for further
consistency review. To support these consistency reviews, the C&P
Service is developing new review protocols to monitor and review rating
variations with regard to particular diagnostic codes.
Recommendation 5: Coordinate with the Veterans' Health
Administration (VHA) to improve the quality of medical examinations
provided by VA and contract clinicians, and to ensure medical and
rating staff are familiar with approved medical examination report
templates and that the templates are consistently used.
Actions Taken/Planned: VBA continues to work with VHA to improve
the quality of medical examinations performed to support disability
compensation evaluations. VBA is working with the Compensation and
Pension Examination Program (CPEP) Office to ensure that all automated
examination report templates thoroughly and accurately solicit the
medical evidence needed to consistently evaluate the disability that is
the basis of a claim. VBA is also working with VHA to establish a
formal approval process for the templates and to obtain agreement on
the mandatory use of approved templates.
Recommendation 6: In view of growing demand, the need for quality
and timely decisions, and the ongoing training requirements, re-
evaluate human resources and ensure the VBA field organization is
adequately staffed and equipped to meet mission requirements.
Actions Taken/Planned: VBA is carefully reviewing its budget
formulation and resource allocation methodologies. VBA will refine and
make appropriate changes to the methodologies to ensure the resource
needs are accurately projected and the field organization is
appropriately staffed and funded. While it is critically important that
the field organization be staffed and equipped to meet our high
expectations for service delivery, VBA will also work to ensure the
adequacy of the resources devoted to investment in information
technology, training, and oversight--all essential components for
achievement of our quality and consistency goals.
Recommendation 7: Consider establishing a lump-sum payment option
in lieu of recurring monthly payments for veterans with disability
ratings of 20 percent or less.
Actions Taken/Planned: It is expected that the Veterans' Disability
Benefits Commission will consider this public policy issue. The
Veterans' Disability Benefits Commission report is expected 15 months
following its initial public meetings, which were held on May 9 and 10,
2005.
Recommendation 8: Undertake a more detailed analysis to identify
differences in claims submission patterns to determine if certain
veteran sub-populations, such as World War II, Korean Conflict, or
veterans living in specific locales, have been underserved, and perform
outreach based on the results of the analysis to ensure all veterans
have equal access to VA benefits.
Actions Taken/Planned: The Veterans' Benefits Improvement Act of
2004 requires VA to submit a report to Congress on servicemembers' and
veterans' awareness of benefits and services available under VA laws.
The VA Office of Policy, Planning and Preparedness is conducting a 1-
year research study to determine servicemember and veteran awareness of
VA benefits and services and how they can be obtained. The study will
include recommendations for improving VA outreach and awareness for
servicemembers and veterans of benefits available to them.
VBA will use the results of this study and other information and
data related to claims submission patterns by period of service and
specific locales to identify any significant differences. VBA will then
initiate outreach and focused campaigns specifically directed at any
population of veterans potentially underserved.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Kenneth B. Kramer
Question 1. As to your suggestion to place an Administrative Law
Judge or a Veterans' Law Judge working at the Regional Office on the
disputed cases, can you explain in further detail how you believe this
will help the system?
Answer. The help will not come in the form of ultimately better
decisionmaking; but rather, in faster decisionmaking that will maintain
the quality of the existing system. In other words, the purpose of
using an Administrative Law Judge (ALJ) or Veterans Law Judge (VLJ) is
to finalize the maximum possible number of decisions at the local level
in order to minimize the number of appeals.
The present appellate process frequently results in a case being
caught in a cycle of remands that causes tremendous delay before a
final decision results. Each time a case changes its level of
adjudication--from the Regional Office (RO) to the Board of Veterans
Appeals (BVA) or the reverse--from the Board of Veterans' Appeals to
the U.S. Court of Appeals for Veterans' Claims (Veterans Court) or the
reverse--or from the Veterans Court to the U.S. Court of Appeals for
the Federal Circuit (FC) or the reverse--there is inherent delay which
can range from months to years. Each level has its own rules,
procedures, and way of doing business that translates into backlog
producing delay.
What I am suggesting, in essence, is to produce as the last step at
the RO, where there is disagreement, an ALJ or VLJ decision of at least
the same quality as a decision presently produced at the Board. After
that kind of decision is rendered, and it still results in
disagreement, an appeal to the Board will require the same specificity
as is presently required for an appeal from the Board to the Veterans
Court.
Such a change will put substantial down the chain, rather than up
the chain, momentum on final administrative (VA) decisionmaking. This
kind of momentum is highly beneficial in two regards: first, it
provides for an expert decision much earlier in the process; and
second, it permits for a second level of expert decisionmaking in those
cases in which there is a significant legal question.
With such a change, another derivative benefit is also potentially
available. Under the existing system, there are three levels of expert
decisionmaking--one at the administrative level and two at the judicial
level. Once two levels of expert administrative decisionmaking are
implemented, there is no basis on which to continue two levels of
judicial decisionmaking, unless one believes that four, rather than
three, levels of experts are now necessary. Assuming that adding
another layer is counterproductive if the goal is reducing backlog and
delay, either the FC, as I recommended during the hearing, or the
Veterans Court, can be eliminated from the judicial review process.
__________
Prepared Statement of Quentin Kinderman, Deputy Director, National
Legislative Service, Veterans of Foreign Wars of the United States
On behalf of the 2.7 million members of the Veterans of Foreign
Wars of the United States (VFW) and our Ladies Auxiliary, I appreciate
the opportunity to submit a statement for the record on this important
topic. I congratulate the Committee for the decision to devote the time
and effort to focus attention on what has been a chronic problem for
the Veterans' Benefits Administration (VBA) and for America's veterans.
The backlogs of case work and the resultant delays have been, for a
decade or more, resistant to efforts to solve the problem, and most
veterans and their survivors have to wait longer than a reasonable
period of time for a decision on their claims for disability or death
benefits.
I will not dwell on the statistics regarding the VA's performance,
or the number of cases pending, other than to clarify an apparent
conflict between numbers that the VFW provided in previous testimony,
and numbers provided by the VA.
VBA often provides the rating workload number. As of May 20, 2005,
this was 342,811 cases. It is only part of what the 7,336 employees
have to face in workload. What concerns the Veterans of Foreign Wars is
that the same employees also have 122,882 pending cases not involving
ratings, 153,456 pending appeals, which quite frankly, each takes much
more time and effort than an original or reopened claim, and 79,335
education claims, in the rapidly growing GI bill program. This adds up
to over 700,000 claims for the same 7,336 employees.
The VFW has long supported providing adequate resources to the VBA
to provide highly accurate and timely benefit decisions. We realize
that VBA is often forced to suffer problems that are directly related
to the austerity of their funding. This includes the consequences of
addressing in the short run, critical situations that are a consequence
of the inability to assume that the proper long term resources will be
available. However, we also believe that the current situation of
persistent backlogs and delays in claims processing are not entirely
related to resource levels.
The recent IG report, styled as State Variances in VA Disability
Compensation Payments, but including material far from that topic,
documents as part of a VBA decisionmaker survey, the growing discomfort
in VBA with the workload, and the imbalance to the staffing available
to work on it, especially at the decisionmaker level. These dedicated
employees have our sympathy and support. From their point of view,
there is truly a never-ending supply of already old work to do.
However, this has been the situation for many years. The emphasis from
the top of the organization has persistently been on moving the cases
along, to reduce the overall count, to bring down the backlog. VFW
believes that an unintended price has been paid for this emphasis, both
in the quality or accuracy of the decisions, and in VBA's institutional
ability to address these chronically high caseloads. The growing
frustration and stress of workload pressure have inspired some
dedicated VBA employees to find early retirement attractive. The
cumulative effect of subordinating training and guidance to production
has taken its toll.
Compared to the compensation program of a decade or more ago, the
work is much more complicated. It is now a complex thicket of court
decisions, and statutory requirements that occasionally require the
readjudication of thousands of cases. Veterans' claims adjudication is
no longer a business that can be managed simply by the numbers. Our
impression of management by the numbers is, in essence, a balancing of
the numbers to even out workload, nationwide. Old work is ``brokered''
from one office to another office that is relatively advantaged in the
age and volume of casework. The reward for work done is more work from
another office. Perhaps this is effective in the short term, but after
a decade or so, we think that it is possible that the office people may
have figured out how to stay in the middle of the pack, low enough not
to need to broker out work, but high enough not to be a broker in
station as well.
We also believe that, in the difficult situation of constant
workload pressure, some confounding factors may have established
themselves in the claims processing system. VBA operates a rather
imposing quality monitoring system, acronym ``STAR'' which finds, on a
sampling basis, that about 15 percent of the cases have a significant
error. There is little actual constructive feedback to the
decisionmakers. The VFW thinks that, for a claims process that
profoundly affects the lives of the veteran claimants, 15 percent is a
very high error rate. It suggests that for 15 out of every 100 veterans
or their survivors, after waiting many months, or even years, for a
decision from VA, they receive a decision that is significantly flawed.
The IG, in its recent study, found an association between a higher
average compensation payments, and representation by veteran's service
organizations (VSO). We believe that this may in part reflect the VSOs
success in identifying rating decisionmaker's errors, and insisting on
their correction, either locally, or on appeal. While we are proud of
the efforts that VSOs make to assist veterans and their survivors, we
have serious reservations about VA's tolerance for a level of errors
that most people would not accept in most of life's other transactions,
like one's bank account or virtually any consumer product or service.
Furthermore, we do not believe that this deficiency in the ability
to produce consistently accurate decisions can be divorced from the
more public issue of the claims backlog. Clearly, a significant and
cumulative portion of the work must be adjudicated more than once,
often in an adversarial and inefficient situation leading to even more
burdensome appeals. As pointed out in the VSO's Independent Budget,
fiscal year 2006, the emphasis on production at the expense of quality
leads only to short-term gains. The evidence of this is obvious, and
need not be repeated here.
Also regarding this IG report, we are informed that the VA plans to
do a massive review of PTSD and Individual Unemployability claims,
based on the IG's findings. The VFW believes that this massive review,
to be accomplished using VBA's claims processing resources and people,
will significantly increase VA's caseload backlogs. Moreover, the
review, which VA has apparently decided to do, is based on IG findings
in a small sample of cases, using expertise that appears, to our
knowledgeable people, to be exceedingly thin. We urge the VA to at
least review the IG's cases using experts from VBA and the BVA before
committing to this questionable plan. We are a country at war. Many of
our soldiers and Marines are experiencing sustained urban combat of the
worst kind. Some of them will need the VA's help when they return. An
investigation that slanders the wartime experiences of their parents
and older siblings will not encourage them to come to the VA.
Through most of the recent history of claims processing in the VBA,
appeals have been the storm looming on the horizon. We have observed in
VBA the normal tendency to focus on what is the immediate priority,
often at the expense of other essential tasks. Too often in recent
years, the priority has been new claims, and the other task has been
appeals. As with the other claims, the backlog of appeals has been
confounded with a larger than appropriate error rate, incessant
remands, and in many cases, extraordinary delays in processing. VBA has
sought to address these problems by creating an Appeals Management
Center (AMC) here in Washington. By all accounts, the AMC and its
dedicated and committed staff have begun to make a difference. The AMC
was, however, necessarily created from the best available trained
employees in VBA, and its mission is to meet a need in the appeals
process that frankly was not being successfully addressed before. The
AMC addresses the problem of appeal remand development, and with the
cooperation of VFW and other VSOs, even successfully addresses some
claims prior or instead of returning then to BVA. Creation of the AMC
does, however, reduce VBA's capacity in the other offices to deal with
claims, perhaps even affecting VBA's existing efforts to improve
quality, by the number of employees transferred to the AMC. This should
be cause for concern for officials with overall responsibility for
VBA's mission.
We supported the establishment of the AMC, and continue to work
with their people to improve the appeal process, but we are concerned
that the resources in VBA are finite, their people require long and
complex training and are not easily replaced, and that the organization
is eroding as a result of crisis management, an aging workforce, and a
program that seems to be growing relentlessly more complex and
adversarial, and is now threatened with the possibility of massive and
perhaps, from the veterans' point of view, catastrophic change. Perhaps
the answers lie in some combination of technology, more effective and
enlightened training, and a new generation of employees, committed to
serve a new generation of wartime veterans.
VBA indeed faces a dilemma. They have a complex and often modified
program, a frustrated workforce, myopic focus on production to address
backlogs to which training and quality control are subordinated, and a
reliance on brokering work from office to office to avoid short-term
crises. Added to this is an increasing burden of appeals, and a new
generation of wartime veterans deserving of the best service. The
future is indeed challenging for VBA.
We do know, however, that the answer does not lie in the
dismantlement or diminishment of America's commitment to our heroes,
either in the programs necessary to support them, or the organization
necessary to provide these earned benefits.
<all>