[Senate Hearing 111-265]
[From the U.S. Government Publishing Office]
S. Hrg. 111-265
VETERANS' DISABILITY COMPENSATION:
FORGING A PATH FORWARD
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HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 29, 2009
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
Daniel K. Akaka, Hawaii, Chairman
John D. Rockefeller IV, West Richard Burr, North Carolina,
Virginia Ranking Member
Patty Murray, Washington Lindsey O. Graham, South Carolina
Bernard Sanders, (I) Vermont Johnny Isakson, Georgia
Sherrod Brown, Ohio Roger F. Wicker, Mississippi
Jim Webb, Virginia Mike Johanns, Nebraska
Jon Tester, Montana
Mark Begich, Alaska
Roland W. Burris, Illinois
Arlen Specter, Pennsylvania
William E. Brew, Staff Director
Lupe Wissel, Republican Staff Director
C O N T E N T S
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July 29, 2009
SENATORS
Page
Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii........ 1
Tester, Hon. Jon, U.S. Senator from Montana...................... 2
Johanns, Hon. Mike, U.S. Senator from Nebraska................... 2
Burr, Hon. Richard, Ranking Member, U.S. Senator from North
Carolina....................................................... 17
Prepared statement........................................... 17
Begich, Hon. Mark, U.S. Senator from Alaska...................... 18
Murray, Hon. Patty, U.S. Senator from Washington................. 20
Prepared statement........................................... 20
Brown, Hon. Sherrod, U.S. Senator from Ohio...................... 70
WITNESSES
Dunne, Patrick W., RADM U.S. Navy (Ret.), Under Secretary,
Benefits, U.S. Department of Veterans Affairs; accompanied by
Thomas J. Pamperin, Deputy Director for Policy, Compensation
and Pension Service, Veterans Benefits Administration.......... 2
Prepared statement........................................... 4
Koch, Noel, Deputy Under Secretary, Office of Transition Policy
and Care Coordination, U.S. Department of Defense.............. 7
Prepared statement........................................... 8
Allen, Michael P., Professor of Law, Stetson University.......... 30
Prepared statement........................................... 31
Bertoni, Daniel, Director, Disability Services, Government
Accountability Office.......................................... 40
Prepared statement........................................... 42
Wilson, John L., Lt. Col., USAF (Ret.), Associate National
Legislative Director, Disabled America Veterans................ 60
Prepared statement........................................... 61
Response to questions arising during hearing by:
Hon. Patty Murray.......................................... 66
Hon. Sherrod Brown......................................... 73
APPENDIX
Jackson, Robert, Assistant Director, National Legislative
Service, Veterans of Foreign Wars of the United States;
prepared statement............................................. 79
Allen, Michael P., Professor of Law, Stetson University; article. 82
VETERANS' DISABILITY COMPENSATION: FORGING A PATH FORWARD
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WEDNESDAY, JULY 29, 2009
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:15 a.m., in
room 418, Russell Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
Present: Senators Akaka, Murray, Brown, Tester, Begich,
Burr, and Johanns.
OPENING STATEMENT OF HON. DANIEL K. AKAKA, CHAIRMAN,
U.S. SENATOR FROM HAWAII
Chairman Akaka. This hearing of the Senate Committee on
Veterans' Affairs will come to order. This morning we continue
our work on VA's disability compensation process.
Today's hearing will focus on improvements that can be made
in reviewing disability compensation claims. My goal is to
ensure that claims are adjudicated accurately and in a timely
fashion. Everyone involved realizes that there is no quick fix
to solving all the problems with disability claims, but the
Committee, teaming with the Administration and those who work
with veterans, intends to do all it can to improve this
situation.
To bring optimal change to a process that is as complicated
and important as this, we must be deliberate, focused and open
to input from all who are involved in this process. It is in
that spirit that we have held previous hearings and it is the
backdrop of this hearing as well.
To be fair, claims processing is a complicated matter.
There have been many changes to the claims processing landscape
in recent years. Many of those changes have come from policies
intended to make improvements piece-by-piece. Unfortunately,
these piece by piece reforms have failed to produce the results
veterans deserve.
While many claims processing issues are internal to VA,
this Committee recognizes that solutions go beyond the VA. This
is especially true for transitioning servicemembers who look to
VA and DOD to help them receive the care and benefits they have
earned.
The Disability Evaluation System Pilot Program is one
example of VA and DOD working collaboratively to ease the
transition of disabled servicemembers from military to civilian
life. Today, I hope to hear from VA and DOD about the status of
this program and their plans for its future.
I reiterate that our goal is to provide veterans with
accurate and timely resolution to their cases. No idea is too
bold. We must act quickly, yet responsibly, to rectify this
situation. I, again, welcome everyone to today's hearings.
May I call on Senator Tester for any opening remarks?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Well, thank you, Mr. Chairman. I think I am
going to forego my opening remarks and will make the opening
remarks during the questions. So, thank you, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Tester.
Senator Johanns, your opening statement please.
STATEMENT OF HON. MIKE JOHANNS,
U.S. SENATOR FROM NEVADA
Senator Johanns. Mr. Chairman, I will do likewise. That is
a good idea.
Chairman Akaka. Thank you very much.
I want to welcome our principal witness from VA, the
Honorable Patrick Dunne. It is good to have you, the Under
Secretary for Benefits, here. He is accompanied by Thomas J.
Pamperin, Deputy Director for Policy at the Compensation and
Pension Service. I also want to welcome DOD's witness, Noel
Koch, Deputy Under Secretary, Office of Transition Policy and
Care Coordination.
I thank all of you for being here this morning. Your full
testimony will, of course, appear in the record.
Admiral Dunne, will you please begin with your testimony?
STATEMENT OF PATRICK W. DUNNE, RADM U.S. NAVY (RET.), UNDER
SECRETARY, BENEFITS, U.S. DEPARTMENT OF VETERANS AFFAIRS;
ACCOMPANIED BY THOMAS J. PAMPERIN, DEPUTY DIRECTOR FOR POLICY,
COMPENSATION AND PENSION SERVICES, VETERANS BENEFITS
ADMINISTRATION
Admiral Dunne. Good morning, Mr. Chairman, Members of the
Committee. Thank you for the opportunity to appear today to
discuss the direction of VA's Disability Compensation Program.
I fully share the concerns of this Committee, veteran service
organizations, and the veteran community regarding the
timeliness of disability benefits claims processing.
Our mission is to deliver to veterans first-rate care and
service. Where we do not meet high standards, such as with
timeliness and benefits adjudication, we will find the root
causes and fix them. Our leadership team is deeply committed to
changing the paradigm of today's lengthy and paper-bound
disability claims processing.
The number of claims completed during this fiscal year is
10 percent greater than in the same period in 2008. We have
improved average days to complete on rating claims from 178
days at the end of 2008 to 161 days at the end of June. We
currently have approximately 406,000 disability claims pending,
which includes all disability claims received, whether pending
only a few hours or significantly longer.
This inventory is dynamic rather than static. Completed
claims are continuously removed from the inventory while new
claims are added. We currently average over 80,000 new rating-
related claims added to the inventory each month.
Our strategic goal for completing disability claims is 125
days. We consider all disability claims pending for more than
125 days to be our claims backlog. At the end of June, 144,652
rating claims, or 35 percent of the inventory, were pending for
more than 125 days.
We believe our disability claims workload is increasing
largely due to our many outreach efforts. We conducted
thousands of transition briefings, including pre- and post-
deployment briefings for Reserve and National Guard members and
briefings for military personnel stationed overseas. All
separating servicemembers are encouraged to attend Transition
Assistance Program briefings. We project that we will brief
over 300,000 new veterans this year. We have also hired nearly
4,200 new employees since January 2007. In addition, to
leverage the knowledge and experience of retired claims
processors, we hired more than 100 recent retirees as re-hired
annuitants to assist in completing rating decisions and train
and mentor our new employees.
Last September, we partnered with Booz Allen Hamilton to
conduct a review of the claim development process to divide
recommendations on cycle time reduction. On July 20, we began a
pilot at the Little Rock Regional Office to implement those
recommendations.
Our core IT modernization strategy includes implementing a
business model for claims processing that is less reliant on
the acquisition and storage of paper documents. Our
comprehensive plan will employ imaging and computable data as
well as enhanced electronic workflow capabilities, enterprise
content and correspondence management services, and integration
with our modernized payment system. We are also exploring the
utility of business-rules-engine software for both workflow
management and improved decisionmaking.
We developed strategic partnerships with two recognized
experts in the field of organizational transformation. First,
MITRE Corporation is actively providing strategic program
management support as well as support for the overall paperless
initiative. Booz Allen was recently engaged to provide business
transformation services as part of a pilot project for business
process reengineering, organizational change management,
workforce planning, and organizational learning strategies. The
Providence Regional Office will serve as our business
transformation lab--the focal point for convergence of process
reengineering and technology.
We continue to work collaboratively with DOD to enhance the
transition of servicemembers to successful civilian lives with
programs such as Benefits Delivery at Discharge and Quick Start
for servicemembers separating or demobilizing from the active
force, and the joint Disability Evaluation System, or DES,
Pilot. We believe the revised DES Pilot is a better process for
servicemembers. It has been faster and more transparent than
the traditional
process and has reduced appellate activity. The pilot is now
the standard process at 21 military treatment facilities,
accounting for almost 30 percent of all servicemembers going
through the DES process.
As of July 12th, over 3,000 servicemembers enrolled in the
pilot and 560 completed the process. Those servicemembers
qualified for veteran benefits are informed of entitlements
from both departments when they are notified of the Physical
Evaluation Board, or PEB's, decision.
Mr. Chairman, this concludes my testimony, and I will be
happy to respond to any questions.
[The prepared statement of Admiral Dunne follows:]
Prepared Statement of Patrick W. Dunne, Under Secretary for Benefits,
Veterans Benefits Administration, U.S. Department of Veterans Affairs
Chairman Akaka, Ranking Member Burr, and Members of the Committee:
Thank you for providing me the opportunity to appear before you today
to discuss the direction of the Veterans Benefits Administration's
(VBA) disability compensation program. Accompanying me today is Mr. Tom
Pamperin, VBA's Deputy Director of Compensation and Pension Service,
Policy and Procedures. My testimony will focus on the challenges VBA
faces processing claims and what we are doing to overcome those
challenges. I will also discuss the status and future of the Disability
Evaluation System (DES) Pilot.
ADDRESSING BACKLOG
I fully share the concerns of this Committee, Veterans Service
Organizations, and the Veteran community regarding the timeliness of
disability benefit claims processing. Our mission at VA is to deliver
to Veterans--our clients--first rate care and services. Where we do not
meet high standards, as is case with timeliness of benefit
adjudication, we will find the root causes and address the issue. Our
leadership team is deeply committed to changing the paradigm of today's
lengthy and paper-bound disability claims processing.
VBA is completing more claims than ever before. The number of
claims completed this fiscal year is 10 percent greater than the same
period in fiscal year 2008. We currently have approximately 406,000
disability claims pending in our inventory, which includes all
disability claims received, whether pending only a few hours or
significantly longer. This entire inventory of pending disability
claims is frequently--and incorrectly--referred to as the ``claims
backlog.'' The inventory is dynamic rather than static. Completed
claims are continuously removed from the inventory while new claims are
added.
VBA's pending inventory of claims is bundled into two categories:
rating workload and non-rating workload. The rating workload is
composed of original and reopened claims for disability compensation
and/or pension. This workload is how VBA traditionally measures its
claims inventory. We consider these claims the core of our claims
processing activity because they represent Veterans awaiting an
entitlement decision for service-connected disability compensation or
non-service-connected pension benefits. At the end of June 2009, VBA's
rating-related inventory was 406,056 claims. Of these, 270,863, or 66.7
percent, were reopened claims, which include claims for increased
benefits, newly claimed disabilities for Veterans who have previously
filed claims, or additional evidence submitted to reopen a previously
denied claim.
Non-rating workload includes dependency adjustments on active
compensation awards, income adjustments on pension awards, and
eligibility determinations for ancillary benefits like automobile
grants, clothing allowances, and special housing grants. At the end of
June 2009, the non-rating inventory was 219,124 claims. This portion of
VBA's workload varies during the year due to the cyclical nature of the
income and eligibility verification processes associated with pension
workload. During the second and third quarter of the fiscal year,
inventory typically fluctuates by as much as 50,000 claims.
The steady and sizable increase in workload is a significant
challenge in improving service delivery of compensation and pension
benefits. During fiscal year 2008, VBA received 888,000 rating claims
and 755,000 non-rating claims for a total of more than 1.6 million. In
the third quarter ending June 30, we completed over a quarter of a
million rating-related claims and nearly 210,000 non-rating claims. We
currently average over 80,000 new rating-related claims added to the
inventory each month, and we project we will receive nearly one million
new disability claims this year. Rating-related claims received are up
14.5 percent compared to the same period in fiscal year 2008. Despite a
10.3 percent increase in claims completed, the rating-related inventory
has increased from 379,842 at the end of fiscal year 2008 to 406,056 at
the end of June 2009.
Although the inventory of rating claims has increased by
approximately 26,000 this year, we have made progress in improving the
timeliness of our decisions. VBA has improved average days to complete
on rating claims from 178.9 days at the end of fiscal year 2008 to
161.3 days at the end of June 2009. We have made similar progress in
improving non-rating timeliness from 109.4 days at the end of fiscal
year 2008 to 88.9 days at the end of June 2009. The combined fiscal
year 2009 timeliness for all rating and non-rating claims completed
through June 2009 is 129 days.
VBA's strategic goal for completing disability claims is 125 days.
We therefore consider all disability claims pending for more than 125
days to be our ``claims backlog.'' At the end of June 2009, 144,652
rating claims, or 35.6 percent of the inventory, were pending for more
than 125 days.
We acknowledge that our disability claims workload is increasing,
which we believe is largely due to VBA's many outreach efforts. Our
disability claims receipts this year are up 13 percent over the same
period last year. We have conducted thousands of transition briefings,
including pre- and post-deployment briefings for Reserve and National
Guard members and briefings for military personnel stationed overseas.
All separating servicemembers are encouraged to attend Transition
Assistance Program (TAP) briefings to learn about the benefits
available to them and receive assistance in applying for their
benefits. We project we will brief over 300,000 new Veterans this year.
Serving our seriously injured servicemembers returning from the
current conflicts remains our top priority. The average time to
complete these claims is 45 days. All of these efforts are a part of a
dynamic shift to an organization that advocates and reaches out to
Veterans to inform them of their benefits and to assist them in
applying for them.
IMPROVEMENT INITIATIVES
VBA is aggressively hiring across the Nation, and we have hired
nearly 4,200 new employees since January 2007. Because it takes at
least 2 years for a new employee to become fully trained in all aspects
of claims processing, we are only now beginning to see the full impact
of those employees hired at the outset of our hiring initiative. We
completed 10.3 percent more claims through June 2009 than we completed
in the same period during 2008, and 19.6 percent more than the same
period in 2007. Our newly hired workforce will continue to progress in
delivering more decisions to Veterans.
In order to leverage the knowledge and experience of recently
retired claims processors, VBA hired more than 100 recent retirees as
rehired annuitants. Rehired annuitants assist in completing rating
decisions and train and mentor new employees.
In September 2008, VBA partnered with Booz Allen Hamilton (BAH) to
conduct a review of the rating-related claim development process to
provide recommendations to improve the process with an emphasis on
cycle time reduction. During its study, BAH interviewed VBA leadership,
conducted site visits to regional offices, and met with front-line
employees. At the conclusion of its review, BAH recommended VBA apply
Lean Six Sigma production practices to claims processing to facilitate
claims movement, thereby reducing processing time. On July 20, we began
a pilot to implement BAH's recommendations.
INFORMATION TECHNOLOGY MODERNIZATION
VBA is taking additional initiatives to improve claims processing.
We are modernizing our information technology by investing in the
migration of compensation and pension claims processing to a paperless
environment. We have successfully used imaging technology and
computable data to support claims processing in our Insurance,
Education, and Loan Guaranty programs for many years.
Our core information technology modernization strategy includes
implementing a business model for compensation and pension claims
processing that is less reliant on the acquisition and storage of paper
documents. Our comprehensive plan, the Paperless Delivery of Veterans
Benefits Initiative, will employ a variety of enhanced technologies to
support end-to-end claims processing.
In addition to imaging and computable data, we will incorporate
enhanced electronic workflow capabilities, enterprise content and
correspondence management services, and integration with our modernized
payment system. We are also exploring the utility of business-rules-
engine software for both workflow management and improved
decisionmaking by claims processing personnel.
BUSINESS TRANSFORMATION EFFORTS
While the use of advanced technologies is critical to our service-
delivery strategy, we must also address our business processes. To that
end, VBA developed strategic partnerships with two recognized experts
in the field of organizational transformation. MITRE Corporation, a
manager of federally Funded Research and Development Centers, has been
supporting VBA on the VETSNET project since 2006. MITRE is now actively
providing strategic program management support, as well as support for
the overall Paperless Initiative, addressing multiple areas of focus.
Additionally, BAH was recently engaged by VBA to provide business
transformation services. BAH assists VBA in business process re-
engineering, organizational change management, workforce planning, and
organizational learning strategies to ensure that VBA positions itself
to take best advantage of the technology solutions being developed.
Our comprehensive transformation strategy also includes designating
the VA Regional Office in Providence, Rhode Island, to serve as our
Business Transformation Lab. The Business Transformation Lab will serve
as the focal point for convergence of process re-engineering and
technology. This designation assures that VBA will optimize service
delivery and then develop and deploy best practices throughout the
organization.
We recognize that technology is not the sole solution for our
claims-processing concerns; however, it is the hallmark of a forward-
looking organization. Our paperless strategy combines a business-
focused transformation and re-engineering effort with enhanced
technologies, to provide an overarching vision for improving service
delivery to our Nation's Veterans.
DISABILITY EVALUATION SYSTEM (DES) PILOT
The Departments of Veterans Affairs and Defense continue to work
collaboratively to enhance the transition of servicemembers to
successful civilian lives. We work together through the Benefit
Delivery at Discharge (BDD) and Quick Start programs for servicemembers
separating or demobilizing from the active force, the joint DES pilot,
and the development of the combat-related catastrophically disabled
Expedited DES process.
Since March 2007, the two Departments have engaged in unprecedented
joint efforts to resolve concerns about the process through which
servicemembers are released from active duty due to disability.
Following detailed collaborative analysis, the two Departments deployed
a revised DES process in November 2007 at the three Military Treatment
Facilities (MTFs) in the National Capital Region. VA believes the
revised pilot is a better process for servicemembers and our respective
Departments.
VA is involved at the earliest stages of the process by
interviewing servicemembers and taking claims for both the potentially
unfitting and other potentially qualifying disabilities. Examinations
are conducted in accordance with established VA protocols for all
potentially unfitting and claimed conditions. If the Military
Department's Physical Evaluation Board (PEB) determines the member to
be unfit, VA prepares a single rating that is binding on both
Departments.
The revised pilot process has been faster and more transparent than
the traditional process and has reduced appellate activity. Based on
findings to date, the two Departments are expanding the pilot. The
pilot is now the standard process at 21 MTFs, accounting for almost 30
percent of all servicemembers going through the DES process.
As of July 12, 2009, over 3,000 servicemembers enrolled in the
pilot, and 560 servicemembers completed the process. The servicemembers
who completed the process includes 179 retained by the Services, 230
retired, and 57 separated with severance pay. Separated and retired
servicemembers are informed of entitlements from both Departments when
they are notified of the PEB's decision.
CONCLUSION
VA's goal is to transform to a 21st century organization that is
Veteran-centric, results-driven, and forward-looking. We have initiated
a plan to address this issue in a more aggressive fashion, which
includes development of a paperless benefits delivery system that will
integrate the latest technologies with redesigned business processes.
We are examining automated decision-support programs to enhance
decisionmaking and evidence gathering, as well as streamline the claims
workflow. We look forward to working with Congress, the Department of
Defense, and the Department of Homeland Security in the continuing
transformation of the DES to meet the needs of 21st century Veterans
and their families.
Mr. Chairman, this concludes my testimony. I will be happy to
respond to any questions that you or other Members of the Committee
have.
Chairman Akaka. Thank you very much.
Mr. Koch, will you please proceed with your statement?
Mr. Koch. Good morning, Mr. Chairman. I submitted written
testimony for the record.
Chairman Akaka. Thank you. It will be included.
Mr. Koch. Thank you.
STATEMENT OF NOEL KOCH, DEPUTY UNDER SECRETARY, OFFICE OF
TRANSITION POLICY AND CARE COORDINATION, U.S. DEPARTMENT OF
DEFENSE
Mr. Koch. Mr. Chairman, distinguished Members of the
Committee, this is my first appearance before you in my present
capacity, and I am privileged to have the opportunity to be
with you this morning. I am honored to share with you our
profound responsibility for the future well-being of our
wounded, ill, and injured servicemembers, veterans and their
families.
My position as Deputy Under Secretary for Transition Policy
and Care Coordination was established in December 2008, and I
am the first person to hold this position formally. As you
know, it represents not only a priority of the Secretary of
Defense, but of the President and the First Lady as well, so I
am mindful of the potential cost of failing in this work that
has been assigned to me.
I am responsible for Lines of Action 1, 3, and 8;
Disability Evaluation System Reform; case management and
benefits--the latter including management and monitoring the
DOD side of the Benefits Executive Council, which I co-chair
with my colleague, Admiral Dunne.
Immediately at issue before us today is the progress of the
Disability Evaluation System Pilot, also called the DES Pilot.
As you know, this was a spearhead of the effort to expedite--
simply, smoothly and equitably the transition of our wounded,
ill, and injured warriors to the next phase of their lives--
from healing and rehabilitation back to active duty or to
veterans status. This undertaking was prompted in the first
instance by the events at Walter Reed Army Medical Center, but
it had deeper antecedents in the experience of duplicative
examination procedures, lost records, delayed medical care, and
protracted efforts to provide to your servicemembers the
attention they earned, deserved, and, in many cases,
desperately needed to assist in recovering from the sacrifices
they made on the battlefield.
The DES Pilot is precedent to a more extensive effort to
make permeable the barriers between DOD and the Department of
Veterans Affairs through the DES evolution. I can report to you
that the DES Pilot has exceeded its expectations as a learning
process and as an expedient to serve those who have been
engaged in it.
As of the 12th of this month, some 2,500 servicemembers
were enrolled in the pilot at 21 medical treatment facilities;
466 servicemembers completed the DES Pilot--returning to duty,
separating from service, or retiring. The average time to
completion of the DES Pilot has been 275 days--exceeding the
goal set for the pilot and exceeding the legacy to DES by an
estimated 46 percent.
The legacy DES, Mr. Chairman, would be one that you would
have familiarity with from your experience in the Army. It goes
back to the earliest days. The Republic was refined somewhat in
1949 and has not improved since then.
The people who have gone through this were active duty
personnel. Reserve and National Guard members moved through the
system to the receipt of their VA benefits letter 13 percent
faster than the goal set for them in the terms of reference
governing the DES Pilot, which was 305 days. Tracking of
servicemembers satisfaction reflects the success indicated by
these numbers. Among the practical efforts taken to assist the
wounded, ill, and injured, has been the Recovery Coordination
Program begun in November 2008. This covers servicemembers less
severely wounded but who are not likely to return to active
duty in less than 180 days.
We are wrestling with a number of complex issues, ranging
from the fit to the unfit equation, compensation for family
caregivers, and TBI and PTSD screening. One among many of the
issues we face in addressing these and other issues is the
velocity with which medical science is accelerating the area of
care for our wounded, ill and injured personnel.
Injuries that once would have disqualified a servicemember
from returning to active duty no longer do so. So, in the
policy arena we find ourselves trying to keep up with miracles.
The tendency in some areas is to sit tight and see where the
miracles take us, between medical science and the incredible
will of our servicemembers. Many of them want to go back to
war. So this is what we are dealing with. It is very different
than any conflict we have ever seen in the past.
As you know, the DES Pilot is a test bed that will help us
determine what future changes we can and may need to make in
this endeavor through the modality of the DES evolution. The
pilot program is operated within the context of existing policy
and law. We may discover the need for changes in policy and may
request that you consider changes in the law.
I do not want to speculate on that today. We are required
to report on the DES Pilot at the end of August, and at that
point, we expect to have a sense of the future of the pilot
itself as well as the course of the DES evolution.
That concludes my oral statement, Mr. Chairman, and I look
forward to any questions you may have.
[The prepared statement of Mr. Koch follows:]
Prepared Statement of Noel Koch, Deputy Under Secretary, Office of
Transition Policy and Care Coordination, U.S. Department of Defense
OPENING
Mr. Chairman, Committee Members, I am pleased to be here today to
discuss with you the Department's continued support of our wounded, ill
and injured servicemembers, veterans, and their families, and in
particular, the continued work of the Office of Transition Policy and
Care Coordination (TPCC) with regard to the Disability Evaluation
System (DES) Pilot.
TPCC BACKGROUND
On 14 November 2008, the Under Secretary of Defense for Personnel
and Readiness established the Office of Transition Policy and Care
Coordination (TPCC). As the Deputy Under Secretary for TPCC, it's my
mission to ensure equitable, consistent, high-quality care coordination
and transition support for members of the Armed Forces, including
wounded warriors and their families by collaborating with Federal and
State agencies. The TPCC assumed responsibility for policy and programs
related to the DES, Servicemembers' transition to veteran status,
wounded warrior case and care coordination, and related wounded warrior
pay and benefit issues. These assigned responsibilities include the
totality of the Department of Defense (DOD) functions formerly assigned
to DOD co-chairs of the interagency DOD and Veterans Affairs (VA)
Wounded, Ill, and Injured (WII) Senior Oversight Committee (SOC) Lines
of Action (LOAs) 1, 3, and 8. The TPCC also assumed DOD
responsibilities for management and monitoring of performance against
DOD/VA Benefits Executive Council (BEC) goals and for coordinating with
VA in support of BEC activities. The TPCC has the authority to enter
into agreements with VA and represent the Under Secretary of Defense
for Personnel and Readiness (USD (P&R)) as a member on councils and
interagency forums established under the authority of the DOD/VA Joint
Executive Council (JEC), the BEC and the SOC.
DISABILITY EVALUATION SYSTEM (LOA-1)
The mission of Disability Evaluation System (DES) Reform is to
develop and establish a DOD and VA Disability Evaluation System that is
seamless, transparent, and administered jointly by both Departments and
uses one integrated disability rating system, streamlining the process
for the Servicemember transitioning from DOD to VA. The system must
remain flexible to evolve as trends in injuries and supporting medical
documentation and treatment necessitates. The Department continues to
make significant steps forward in regards to the DES Pilot to include
periodic refinements to the process and expansion of the Pilot beyond
the original three initial sites in the National Capitol Region.
Overview
Now, as in the past, the DOD remains committed to providing a
comprehensive, equitable and timely medical and administrative
processing system to evaluate our injured or ill Servicemembers'
fitness for continued service. One way we have honored these men and
women, was to develop and establish a Disability Evaluation System
(DES) Pilot that provides one solution for a DOD and VA Disability
Evaluation System using one integrated disability rating system. This
system has several key features: simplicity; non-adversarial processes;
single-source medical exam and disability ratings (eliminating
duplication and the inconsistencies associated with it); seamless
transition to veteran status; and strong case management advocacy. The
system is flexible to evolve as trends in injuries and supporting
medical documentation and treatment necessitates. LOA-1 has continued
to make significant progress in regards to the DES Pilot to include the
Pilot's initial expansion to an additional 18 locations across the
Continental United States (CONUS).
Pilot
The DES Pilot integrates the DOD and VA disability systems to the
extent allowed under current statute and includes several key features
that distinguish it from the current DOD and VA disability systems. The
key features of the Pilot include a single physical disability
examination conducted according to VA examination protocols, with
disability ratings defined by the VA and accepted by DOD for those
conditions it must address under law--those that render the member
unfit for military service. The Departments apply the shared results of
the single disability examination and ratings to render their
respective decisions (the fitness decision, disability level,
separation disposition, and DOD disability benefits by DOD and
disability level, Veteran disability benefits eligibility, and VA
disability compensation level by VA). Another key feature of the Pilot
is that the early involvement of the VA allows the Department to
deliver disability compensation and benefits immediately upon
transition to Veteran status for members of the Military Departments
being separated for disability.
Our efforts to improve the DES is co-directed by the Deputy
Director for Policy Compensation and Pension (C&P) Service from the VA
and me as the DOD representative.
The vision for the DES Pilot is a Servicemember-centric, seamless
and transparent disability evaluation system jointly administered and
supported by the Departments. The Departments set the following
objectives for the Pilot:
Design a more transparent, efficient, and effective DES
Evaluate reform initiatives
Refine reform mechanisms
Identify training requirements
Identify staffing and system support requirements
Identify legal and policy issues/constraints.
Current Operational Status
As of July 12, 2009, 2,944 Servicemembers are currently enrolled in
the DES Pilot at 21 MTFs. Four hundred sixty-six (466) Servicemembers
completed the DES Pilot by returning to duty, separating, or retiring.
Active Component Servicemembers who completed the DES Pilot averaged
275 days from Pilot entry to VA benefits decision, excluding pre-
separation leave. Including pre-separation leave, Active Component
Servicemembers completed the DES Pilot in an average of 294 days. This
is 1% faster than the goal for Active Component Servicemembers and 46%
faster than the current or legacy DES and VA Claim process. Reserve
Component/National Guard Servicemembers who completed the DES Pilot
averaged 266 days from Pilot entry to issuance of the VA Benefits
Letter, which is 13% faster than the 305-day goal.
Customer Satisfaction
On the whole, Pilot participants reported higher average
satisfaction than legacy participants. Additionally, Pilot participants
reported higher satisfaction for all MEB and the PEB. Notably,
Servicemembers were significantly more satisfied with the procedural
justice component of the PEB phase (i.e., they felt the PEB portion of
the Pilot was fairer than did legacy DES participants). Finally, the
Pilot participants were more satisfied than legacy DES participants on
the Transition phase of the program. Family members of DES Pilot
participants were most satisfied with medical providers and the medical
care the Servicemember received in the DES Pilot process. Stakeholder
(perceptions of the impact of the Pilot on Servicemembers and Veterans
were favorable; their ratings reflected a DES Pilot process that was
more responsive to Servicemembers and their families, fairer, more
consistent, and timelier compared to the current DES program. Perhaps
most importantly, stakeholders felt that people within their
organization cared about the Servicemembers in the DES Pilot program.
These results speak to the dedicated efforts of Physical Evaluation
Board Liaison Officers, Military Service Coordinators, care providers,
and others who are remaining responsive to the needs of their customers
given the limited level of resources they have available. The VA is
preparing to administer surveys to determine satisfaction with the
pilot one year after separation. We look forward to that information in
spring 2010.
Expansion
The Departments carefully planned for and expanded the DES Pilot
beyond the initial three, National Capital Region locations, to 18
additional locations throughout the continental United States. In
accordance with recommendations by the U.S. Government Accountability
Office, this deliberate approach allowed the Departments to gather data
on the effectiveness of the Pilot at a diverse set of locations.
Expansion to these locations began October 1, 2008 and was completed
May 31, 2009. The SOC is scheduled to meet in August, 2009, to evaluate
future expansion opportunities.
Should the SOC decide to further expand the Pilot into the norm,
significant DOD and VA planning and preparation will be essential to
efficient and effective implementation.
Initial Conclusions of the Pilot
The Departments successfully implemented a more transparent,
efficient, and effective disability evaluation system through the DES
Pilot. The Pilot resulted in a significant improvement in case
timeliness with perhaps the most important enhancement being the
elimination of delays between separation or retirement and the award of
VA disability benefits. Servicemembers were more satisfied with the
process and the outcomes were improved over the legacy system.
Based on the proven performance of the Pilot, the Departments are
evaluating effective ways to extend the advantages of the Pilot to all
Servicemembers in the DES. Additionally, the Departments are reviewing
the Joint DOD/VA DES process as a bridge to further DES reform.
CLOSING
We are extremely proud of the progress made to date and the success
enjoyed in the Pilot. Our obligation to our Servicemembers, veterans,
and their families is a lifetime pledge which requires our unwavering
commitment to complete the work which has been started. There remains
more work to do. Our valiant heroes and their families deserve our
support and dedication to ensure their successful transition through
recovery, rehabilitation, and return to duty or reintegration into
their communities.
With those thoughts in mind, the Departments successfully
implemented a more transparent, efficient, and effective disability
evaluation system through the DES Pilot. The Pilot resulted in a
significant improvement in case timeliness with perhaps the most
important enhancement being the elimination of delays between
separation or retirement and the award of VA disability benefits.
Based on the proven performance of the Pilot, the Departments are
evaluating effective ways to extend the advantages of the Pilot to all
Servicemembers, Veterans, and their families in the DES.
Thank you for your generous support of our wounded, ill and injured
servicemembers, veterans and their families. I look forward to your
questions.
Chairman Akaka. Admiral Dunne, a popular statistic going
around is that the claims backlog is nearing 1 million. That is
1 million claims yet to be fully resolved.
Is that figure an accurate indicator of DBA's claims
inventory? If it is not, where is that number coming from?
Admiral Dunne. Mr. Chairman, I would say that the
calculation of that large number is based on taking a look at
all the work that our regional offices are involved with. The
number of 406,000 for compensation and pension claims
inventory, which I referred to earlier, is the number of active
claims that we are working on for veterans who are waiting for
some compensation or pension from us.
If we take a look at a larger number by adding up some of
the other categories--everything from making adjustments for
hospitalization of a veteran, incarceration of a veteran, doing
changes of address, et cetera--we track all of those as
workload elements at which they must also be accomplished, but
they are not directly related to a decision on a veteran
getting compensation or pension, sir.
Chairman Akaka. This question is for you, Admiral Dunne and
also for Mr. Koch on the Disability Evaluation System.
How are the departments working to make certain that the
Disability Evaluation System Pilot Program is being implemented
in the same way at participating sites?
Admiral Dunne. Sir, in order to maintain the consistency
that we need and to ensure that the military treatment
facilities have the capabilities that they need to serve our
servicemembers--future veterans--first, we conducted a very
extensive evaluation of what was needed in the National Capitol
Region when we started in November 2007--what capabilities we
needed both on the VA side and on the DOD side.
We use that as lessons learned in order to conduct training
for each of the individual military treatment facilities and VA
offices who would be involved at the now 21 sites. So, all of
those individuals involved received training, having the
benefit of what we learned at the first three sites. And we
have continued to follow through on that as we expand it on to
the 21, sir.
Chairman Akaka. Mr. Koch?
Mr. Koch. Yes, sir. Mr. Chairman, I do not have a great
deal to add to what Admiral Dunne has said. We are constantly
monitoring the progress of these efforts at all 21 sites and
adding to the inventory of trained personnel to assist with the
care of our servicemembers.
So, to some extent, it is a constant becoming; it is a work
in progress. And some of the things that we had started out to
do, similar to the Army with its AW2 program, it has evolved as
it has gone along. We have built on what we have learned there
with our Recovery Care Coordinators; and, of course, on the
other side with the Veterans Affairs, there are the Federal
Recovery Coordinators that do this work as well.
But there are a range of issues that we have got to
continue to attack, and we are doing that within the evaluation
of the pilot as well as within the working group, which I chair
as well for the DES evolution.
Chairman Akaka. Admiral and Mr. Koch, how can VA and DOD do
a better job at screening servicemembers so that those who
enroll will actually complete DES and make wiser use of
resources?
Mr. Koch?
Mr. Koch. Yes, sir. The process begins at the intake of the
wounded, ill, or injured warrior. We look at, of course, the
nature of the wounds that may be considered catastrophic. These
would be people that we do not expect to be able to go back to
active duty, and they are going to have to change their
expectations for their future. And we have to try to manage
those expectations so that we do the best we possibly can for
them.
There is a process set up for them to proceed through the
system from the point of intake through the healing process--
rehabilitation--and to reach a point at which a determination
will be made on our side--on the DOD side--whether they are fit
or unfit for duty.
Now, that sounds like a very cut and dry determination. In
fact, it is not because, as I said in my oral testimony, many
of these people who have suffered wounds that would have been
completely disabling in the past are going through some
marvelous procedures of recovery. Now if they want to stay in,
the chances of us being able to retain them are greater than
they ever were in the past.
So, through this process, which we are evolving, we think
that it is going to be what it is set out to be, which is
smooth, simple, equitable and optimal. Again, we constantly
monitor this to assure that we meet the standards that we have
set for ourselves.
Chairman Akaka. Do you have any comment on that, Admiral?
Admiral Dunne. Yes, Mr. Chairman. On the VA side, as we
perform the medical evaluations that we do, working with DOD,
there is close monitoring of the results of that, of course. I
believe as we look at it through the Senior Oversight
Committee, which includes taking a look at the data of
servicemembers who are not eventually separated or retired,
that that is good feedback for the services to evaluate and
evolve their program, as we are working on right now, sir.
Chairman Akaka. Thank you.
Senator Johanns, your questions?
Senator Johanns. Thank you, Mr. Chairman.
Admiral, I think I will start this question with you, but I
would encourage the other members of the panel to jump in here.
One of the things we did when I was a mayor--and I was very
active in the U.S. Conference of Mayors--is we established a
best practices sort of system. We would always joke with each
other that we were not looking for original ideas, we were
looking for ideas that worked that we could bring back home and
implement.
Does the VA in its disabilities process have anything like
that? And I will tell you what I have in mind. I was looking at
the statistics for the Lincoln office, and they are just simply
better than the national average. Now, there might be a dozen
reasons for that.
But is there anything out there where you look at what is
happening across the country and say to yourself, I wonder why
those 12 offices are doing so much better than the average, and
actually try to take those models and implement them? Talk to
me about that.
Admiral Dunne. Yes, sir. We are looking for all sorts of
good ideas. I think I will start by setting the example myself.
That is, over the past 16 months I have visited over 30 of our
regional offices, including the Lincoln office, to be able to
talk firsthand to the employees who are actually doing the work
to learn directly from them what their challenges are, what
issues they have that could either make them more effective, or
a best practice that perhaps they are using locally that we
could share with the other 56 offices and implement that.
We have a program where twice a year, we get all the
Regional Office Directors together. In fact, we will be doing
that at the end of August. One of the segments of that meeting
is all about best practices and where? As a result of our
periodic reviews and inspections, we become aware of something
that one office is doing, whether that be through training or
otherwise. We share those with all the directors and provide
them enough information to be able to take back and apply them
at their office if they see that they could benefit from them.
That is one example, but we are continually looking to the
ROs by communicating with them periodically at all levels in
order to take advantage of those ideas. In addition to that, by
publishing our results office by office, we allow the different
offices to be aware of who is performing better and they talk
amongst themselves to figure out why some are better. But we do
try to oversee that process and keep track of it.
Senator Johanns. Anyone else have any thoughts on that?
Mr. Koch. Senator, you have talked about looking for good
ideas. One of the first good ideas we had and implemented was
building a collegial relationship between our two departments--
the DOD and the Department of Veterans Affairs. That has been
very productive and we continue to share our efforts, share
information, and build on each other's learning process.
So, as Admiral Dunne indicated, there is almost no
substitute for visiting these centers. These polytrauma centers
and other hospitals that we have are quite remarkable, and at
each point, we learn something that we can bring back. We
learn, as you might imagine, more from being in the field than
we do from sitting here in Washington. So, that is a process
that is ongoing and very
valuable.
There is, as you suggest, it seems to me, some unevenness
in various centers that we are involved in. I think you can
trace this to efforts to break the mold and to do things that
we have never done before. In the Great Lakes, for example, in
northern Chicago, we are not satisfied with the progress that
we are making there, but what we are trying to do is unique and
it is extremely difficult to do.
In many cases, these problems are found to be rooted in the
effort of information sharing in the sense of information
technology. Building these systems to work across disparate
systems is not easy to do. And the less people seem to know
about the information technology business, the more ambitious
they seem to be about the terms of reference that they levy on
us.
We began, for example, with creating a system for sharing
medical information, which is a very good idea, but then you
add to that, to the same system, personnel records and benefits
records, and you have increased the problems exponentially. So
that gets us in a little bit of a different area, but it is an
example of some of the kinds of problems we have.
So, it is a constant learning and it is a constant process
of sharing what we learn. I think we are doing a pretty good
job of it.
Senator Johanns. I am out of time, Mr. Chairman, but if I
might offer one other suggestion. Regarding best practices--
because I did a lot of things, as a Governor, as a mayor, that,
quite honestly, somebody else had thought of, which looked so
good that we implemented it, and it really turned out well for
us.
The second thing I wanted to ask, though I am not going to
ask you to answer it here, but maybe with a follow-up letter to
the Chairman with copies to us. As we have tried to improve
this, I worry at times that maybe we have done things that have
only made it worse. So, I am going to turn the tables here.
Is there anything out there that has happened in terms of
our effort to solve this problem that you would like us to
revisit? I have one thing in mind: the AMC, the Appeals
Management Center. We hear from veterans that it can be a black
hole; things go in there and disappear. Maybe that is an
individual case, maybe it is not. But that is only an example.
I would ask you to give some thought to this idea, that
maybe in our effort to improve things, we have actually created
another level of bureaucracy that is making it difficult for
the veteran to overcome. I would like to hear from you on that.
Please do not be shy. We have broad shoulders in this business.
Thank you, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Johanns.
Let me call on Senator Murray.
Senator Murray. I am happy to wait for the other Members.
Chairman Akaka. Fine.
Senator Tester?
Senator Tester. That is very kind. Thank you very much, Mr.
Chairman.
Admiral Dunne, you stated that you have 406,000 pending.
What is that level compared to a year ago?
Admiral Dunne. About 25,000 or 30,000 more than a year ago,
sir.
Senator Tester. OK. And the ratings claims are 80,000 each
month? What is that compared to a year ago?
Admiral Dunne. About 5,000 a month more, sir.
Senator Tester. Five thousand more?
You stated in your testimony that you have 125 days as your
goal, but you have got 145,000--and this may be wrong because I
was taking notes--145,000 claims over 125 days?
Is that correct?
Admiral Dunne. Correct. Yes, sir.
Senator Tester. Are those also fluid? You said the 406,000
were fluid.
Admiral Dunne. Oh, yes, sir.
Senator Tester. Is 145,000----
Admiral Dunne. The 145,000 is part of the 406,000, so it is
a subset. We are trying to move those through as fast as we
can.
Senator Tester. All right. So is it a fair question to ask,
of those 145,000, how long do they go past the 125 days? I
mean, are we talking----
Admiral Dunne. As short a time----
Senator Tester [continued]. One hundred eighty days, or
240?
Admiral Dunne. Well, that is an average number, sir. And
what we do, based on the computer, is we take all the claims
and we keep track of how many days they have been there.
Senator Tester. I guess the question is, is there a point
and time on a claim, when it gets to a certain number of days,
that you guys say, we fix this; we fix it now?
Admiral Dunne. Yes, sir. We have a team----
Senator Tester. And what is that day?
Admiral Dunne [continuing]. The Tiger team. When it gets to
be a year old, it goes to a Tiger team that works specifically
on it to try to find what issue is slowing it down.
Senator Tester. And how many of those claims get to 365
days?
Admiral Dunne. At the present time, there is on the order
of 11,000, sir.
Senator Tester. OK. The chairman asked a question about 1
million claims, and you said that is all the work that is being
done, and you listed changes of address and some other things.
Do you guys track that backlog of that additional 600,000?
Admiral Dunne. We track all of them, sir. Everything that
comes in that is a work item is given an end product and we
track it all.
Senator Tester. All right.
If there is a change of address and we do not discover it
for a while, it makes the ability to service that veteran a lot
more difficult. That is just one example.
So, you have got approximately 600,000 out there that you
are doing various, much more minor things on, is how I
interpret that. Do you track that----
Admiral Dunne. Yes, sir, we do.
Senator Tester [continuing]. To see what the backlog is on
those? I mean, what is your goal on those?
Admiral Dunne. There are about 219,000 items in the
inventory right now, sir, and we complete those on average, in
about 88 days. Some of them we were able to complete the day
they come in; others take longer.
Senator Tester. OK. Sounds good. So the million figure that
the Chairman brought up is not accurate. Because if my figures
add up, you have about 625,000 total work that you have been
doing, 219 and 406.
Admiral Dunne. Sir, we have to include appeals in there as
part of the workload also, which the RO has to use some of
their personnel for.
Senator Tester. OK. I assume that there are timelines for
the appeals process, too.
Admiral Dunne. Yes, sir. We established those.
Senator Tester. Can you tell me what those are off the top
of your head?
Admiral Dunne. I would have to get those for you
specifically in terms of targets.
Senator Tester. That would be great.
Do you have the needed employees you have now to reduce the
backlog? Because it has been growing.
Admiral Dunne. Sir, there is a difficult balance that has
to be struck between simply adding more people to the process,
which then creates also additional administrative
responsibilities. I am not sure exactly where that perfect
balance is.
Senator Tester. I appreciate the position you are in
because the claim rates are going up 5,000 a month from what it
was last year, and the pending claims have gone up based on
your answer to the question.
The question is, does VA have a plan to reduce that
backlog?
Admiral Dunne. Absolutely.
Senator Tester. Whether it is employees or technology or
whatever, when will that plan be implemented so that we can
start to see that backlog go down?
Admiral Dunne. Sir, we are working on several issues right
now, both technology-wise and training of personnel, which will
have effects over time. How fast, it is very difficult to say
that a certain action that we take will result in X number of
days or X number of claims being affected because each claim is
truly unique.
Senator Tester. I understand.
Admiral Dunne. We have a technology plan, which I am
working with the Chief Information Officer and the Chief
Technology Officer to put in place on top of our business
process--the reevaluation--which is going on now. We have the
pilot going on in Little Rock and a pilot going on in
Providence that are directly looking at the process that we go
through, how we handle things, in trying to improve that, sir.
Senator Tester. I understand. I understand the position you
are in, and I have some empathy for it. But I also have some
empathy for the veteran out there who is in that backlog group.
My time has also run out. But I would just say we have not
hit break even yet. We are still going the wrong direction.
That somewhat distresses me. I know that the pressures have
been greater because of Afghanistan and Iraq and others, but
the truth is we have to get to a point where we start reducing
the backlog, and we are not there yet, and that is somewhat
distressing.
Thank you, Mr. Chairman.
Chairman Akaka. Thank you, Senator Tester.
Let me call on our Ranking Member, Senator Burr, for any
opening remarks and questions.
STATEMENT OF HON. RICHARD BURR, RANKING MEMBER,
U.S. SENATOR FROM NORTH CAROLINA
Senator Burr. Mr. Chairman, thank you for recognizing me.
Admiral, I apologize for my tardiness this morning. I would
ask unanimous consent that my opening statement be a part of
the record, and I will be happy to fall in the back of the line
to ask questions after every other Member has completed the
first round.
Chairman Akaka. Without objection, it will be added to the
record.
[The prepared statement of Senator Burr follows:]
Prepared Statement of Hon. Richard Burr, Ranking Member,
U.S. Senator from North Carolina
Thank you, Mr. Chairman. Welcome to you and to our witnesses. I
appreciate you calling this hearing to discuss ideas on how to improve
the Disability Evaluation System for our Nation's veterans. For the men
and women who have served and sacrificed for our Nation, they deserve a
system that meets their needs without hassles or delays.
To truly live up to that goal, experts have stressed for more than
five decades that we need to update and streamline the disability
system. But, decades later, many wounded warriors still face a lengthy,
bureaucratic process to find out whether they will be medically
discharged from service and what benefits the military will provide.
Then, these injured veterans may go through a long, complicated process
to find out what VA benefits they will receive.
We will hear today about the steps that have been taken to try to
improve this situation, such as the joint VA/DOD pilot program for
transitioning servicemembers and ongoing efforts to modernize
information technology systems. Also, there have been large staffing
increases at VA, with field staff more than doubling in less than 10
years.
Despite those efforts, I think it's clear that simply adding more
staff and making minor changes hasn't fixed the problems. The claims
process, as a whole, still takes far too long for many veterans, in
North Carolina and across the country.
It takes more than five months on average for VA to make an initial
decision on a claim for veterans' benefits and, if the veteran decides
to appeal, the delays can go on for years. In fact, Professor Allen
noted in a recent article that the average time from when a veteran
files a claim with VA until getting a decision by the Court of Appeals
for Veterans Claims is between five and seven years!
I think a process that takes that long is indefensible. Our
veterans and their families deserve better.
That's why, at a hearing earlier this year, I asked our witnesses
to take a clean piece of paper and redesign the entire disability
process, as if we were standing up a new system today. In response, the
Committee received some very constructive recommendations, and I thank
everyone involved in crafting those responses.
Today, we will hear from the Disabled American Veterans about the
proposal they developed in response to my request. That proposal
includes recommendations for technological improvements, compressing
timeframes throughout the claims process, eliminating unnecessary
procedural steps, and helping avoid time-consuming
remands.
I applaud DAV for these constructive proposals. I think these types
of changes could go a long way toward streamlining the claims process
and, more importantly, toward reducing the delays and frustrations our
Nation's veterans and their families now face. That's why I am pleased
to be working with DAV to draft a bill that would help make those
changes a reality.
Mr. Chairman, I hope my bill will be a good step in the right
direction. I look forward to working with you to advance that
legislation and other changes that can help get decisions to veterans
faster. This system has been plagued with problems for far too long.
So, I hope this Committee will move aggressively to make the system
work better for veterans, now and in the future.
I thank the Chair.
Chairman Akaka. Senator Begich?
STATEMENT OF HON. MARK BEGICH,
U.S. SENATOR FROM ALASKA
Senator Begich. Thank you very much, Mr. Chairman.
Thank you all for being here. I believe this is your second
or so hearing regarding the DES. I'd like to follow up on two
questions, one each by Senator Johanns and Senator Tester.
First, on the best practices, to be honest with you, I was
not satisfied with your answer, and here is why. When you
mentioned the best practices you said--I am going to try to
paraphrase your comments, and that is--that you had the groups
kind of talk about it.
What I learned as mayor is when there are best practices,
and you have multiple agencies with different practices, one
may not acknowledge that the other one has a best practice. To
let them just discuss it does not work.
How do you pull the trigger to make sure that when you see
something that is successful--I do not know enough about
Nebraska's example in Lincoln, but let's assume that has best
practices there. How do you say to the rest of them this is
working; we are doing it this way. Because the way you made it
sound, honestly, I was not satisfied with that. When you leave
it to the agencies or the different organizations, no one
believes they have bad practices.
Admiral Dunne. Senator, I will give you an example. One of
the things that I learned from traveling around to the offices
is that at the present time people that are working claims have
to send letters to veterans. They have to print those letters
out on printers. They share printers. They have to walk around
the room to get it. They also have to sort through the outbox
to figure out which product from the printer is theirs and
which belongs to another VSR.
I directed that we start funding that so that we can get a
printer on everybody's desk, and they can all print their own
correspondence and handle it themselves; save time and save
confusion. So, we are going to go do that. That is one example,
sir.
Senator Begich. Let me ask you, also, in regards to that--I
think Senator Tester asked a question of the claims. I think
you said around 11,000 at some point have gotten to a year.
Maybe I am wrong about this, but is the goal 125 days? Is
that right?
Admiral Dunne. The strategic target is to complete all
claims on an average of within 125 days, sir. If we can do them
sooner than that, we will do them sooner than that.
Senator Begich. How did you select a year, which is almost
three times what the target is? In other words, it seems
significantly long when you think about it. If your target is
125 days but you are waiting a year to intervene on those kind
of--I do not know if the right phrase is complicated claims--
but claims that are not resolved, it is three times what your
average is before you kind of step in and say we got to deal
with this.
How did you come up with three times?
Admiral Dunne. Senator I did not mean to imply that we did
not take a look at a claim until it got to be over a year, but
when it did--each of the regional offices has their own
monitoring system. They are able to monitor, through the
computer, the age of all their claims and they work them. But
if they get to that point of a year, then that is when we turn
them over to a Tiger team.
Admiral Dunne. You had mentioned around 4,000 or so new
employees that were added.
Is that net after attrition and other exits?
Admiral Dunne. A net of 4,200 new employees since January
2007, sir.
Senator Begich. What do you need to get to the level to--I
think to follow up again with Senator Tester--get ahead of the
game? How many more employees?
Admiral Dunne. Again, ahead of the game, sir. I would say
at this point, having evaluated it for 16 months, we need to
implement the IT portion of this because the significant
savings that we need to move things around, we need a digital
capability to do it. I will give you an example of a claim.
When a claim comes in and it is processed, then there is a
need to go back and communicate with the veteran, and send that
veteran a letter and say this is what you have claimed, this is
what we need, additional evidence, et cetera, and give that
veteran 30 days to respond. If the veteran sends additional
information in, then that comes in to the mailroom, and someone
has to take it and move that piece of paper to wherever that
claim file might be. That takes time; it takes people.
If we have a digital capability, when that new piece of
evidence is scanned in, it can be scanned in with the bar code
and immediately go to the electronic claim file, which would
then trigger a management item that would tell someone there is
new evidence in this claim folder; you can act on it now.
Senator Begich. Let me ask you--and I am just about out of
time here. First, regarding personnel that you believe you may
or may not need, do you have the necessary resources to hire
those personnel? And the second piece is on the digital
component. Do you have enough resources to implement what you
want to do with regards to digital resources?
Admiral Dunne. Sir, I would say that we have the correct
people. At this point, we have the correct funding. And I
believe that the budget requests the additional resources that
we need.
Senator Begich. Great. Then, I guess, last question.
When you set on this course, did you develop a strategic
plan--I am assuming you did--that lays out kind of your target
dates and goals, how you will achieve where you want to be, and
how do you keep track of that? Do you have such a document?
Admiral Dunne. Sir, I am in the process of creating such a
timeline with the Chief Information Officer and the Chief
Technology Officer.
Senator Begich. Can you share that with us when you----
Admiral Dunne. Absolutely.
Senator Begich. Great. Thank you very much.
Thank you, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Begich.
We will next hear from Senator Murray--her opening
statement and questions. We will be continuing with the
questions.
Unfortunately, my presence is required at the markup of
another committee. In my absence, Senator Murray will be
chairing this hearing to conclusion. She is, you know, an
active Member of this Committee, and I know that she cares
deeply about the issue that we are discussing.
So now, I would like to turn the gavel over to Senator
Murray.
STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray [presiding]. Mr. Chairman, thank you very
much. I will submit my opening statement for the record.
[The prepared statement of Senator Murray follows:]
Prepared Statement of Hon. Patty Murray, U.S. Senator from Washington
Chairman Akaka, Senator Burr, thank you very much for holding
today's hearing to discuss VA's disability claims and appeals process.
Improvements Made by VA and Congress
Over the last several years, this Committee has held a number of
hearings to explore ways we can improve the timeliness and quality of
our disability compensation system. Congress has provided funding to
increase staffing at the Veterans Benefits Administration, promote
specialized training, and urged the adoption of information technology
solutions.
In response, VA has redistributed workloads, begun to shift to a
paperless environment; and implemented pilots to test new innovative
methods for improving the claims process.
Those efforts have yielded some results. Over the last 10 years, VA
has increased the number of claims it has processed by 60 percent. It
has also reduced the average time to complete a rating claim from 178.9
days in Fiscal year 2008 to 161.3 days at the end of June 2009.
More Work Remains
Yet, despite all of the progress and all of the hard work being
done, far too many veterans continue to wait far too long to have their
claim reviewed.
Part of this, as we all know, has to do with the massive increase
in claims being filed; part of it has to do with the increasing
complexity of those claims; and part of it has to do with legislation
and regulations that we have used to expand VA benefits.
Importance of Fairly and Quickly Compensating Wounds of War
It goes without saying that this country owes a debt of gratitude
to the men and women who have sacrificed to defend our freedoms.
But we owe our veterans more than gratitude. As the Veterans
Disability Benefits Commission wrote in its report, ``just as citizens
have a duty to serve in the military, the Federal Government has a duty
to preserve the well-being and dignity of disabled veterans by
facilitating their rehabilitation and reintegration into civilian
life.''
By providing services and benefits to veterans in a timely and
sufficient way, not only do we express the gratitude of grateful nation
to our wounded warriors, but we also help smooth their transition back
into civilian life.
Problems with Current System
Yet, too often when I speak with veterans, I am frequently reminded
that the VA is often seen as a veteran's adversary, not a veterans
advocate.Between lost or destroyed records, unruly and unorganized
files, and an incentive system that many VBA employees perceive to
value the quantity of claims processed more than the quality of those
claims, Veterans often perceive the deck to be stacked against them.
General Omar Bradley once famously said, ``We are dealing with
veterans, not procedures--with their problems, not ours.''
As we move forward with the modernization and improvement of the
veteran's compensation system, we need to keep that sentiment in mind.
Thank you Mr. Chairman.
Senator Murray. Let me just summarize it by saying that we
have provided a lot of funding and promoted specialized
training and passed legislation, and I know that there is a lot
of increasing complexity with veterans' filings and that we are
facing an increased number of veterans. But I have to say I am
still--because I talk to veterans--really worried.
I am frequently reminded that a lot of veterans see the VA
as their adversary, not as an advocate: lost paperwork,
misorganized files, an incentive system that many VBA employees
perceive to value the quantity of claims processed more than
the quality of those claims. So we still have a lot of work to
do, because I think the veterans often see that when they go to
file a claim, the deck is stacked against them, and we have got
to keep working on this.
So with that in mind, I wanted to ask some questions of you
this morning, Admiral Dunne and Mr. Koch.
In GAO's September 2008 report on the VA/DOD Disability
Evaluation System Pilot, GAO reported that your two agencies
had not established criteria for determining whether the pilot
should be deemed a success and expanded to the rest of the
system.
Now, I understand that you are going to be issuing your
final report to Congress in August, which is coming up very
quickly, but can you tell the Committee, both of you, whether
or not you have developed strong criteria to measure the
success of this pilot and determined the feasibility of
expanding this?
Admiral Dunne. Senator, I think the best criteria that we
have established so far is feedback from the servicemembers
themselves and the veterans, which will be reflected in the
report that we are providing. We are going straight to the
veterans and the family members and asking them how satisfied
they are with the process, with the different stages of the
process, to determine whether what we think is progress is
actually seen by them as progress, and learn from that, so that
we can adjust the DES Pilot as necessary.
Senator Murray. From your perspective, what is the
important criteria to determine whether this is doing well or
not?
Admiral Dunne. Whether or not the servicemembers feel that
they are being treated fairly, that they are getting consistent
results, and that it is being done in the minimum amount of
time, with recognition that they need time for medical healing
and to adapt to the fact that their military career has been
cut short.
Senator Murray. Mr. Koch, do you have anything to add?
Mr. Koch. Yes. I would add that one of the things we
discovered--first of all, as Admiral Dunne indicated, we have
extensive survey efforts to find out what the servicemembers
feel about the way they are being treated. One of the things we
discovered as we progress through this is that the earliest
generations of veterans and their families--in particular,
talking to the wives who have to deal with injured
servicemembers--that the earlier group has a higher level of
dissatisfaction than more recent participants in the process.
So, what it is telling us is that we are getting better at
what we do, but we still have to go back and recapture those
earlier people who have gone through this at a point when we
were just learning how to do better what we were doing.
Senator Murray. How much money is the VA putting in and how
much is DOD putting in to this pilot?
Mr. Koch. Oh, into the pilot?
Senator Murray. Into the pilot.
Admiral Dunne. Senator, I would have to get the exact
figures for you, but our approach has been that we do what is
necessary. I do not mean to say we have been cavalier about the
funding of it, but we have just gone off and determined what
has to be done, which the Secretary has directed us to go do
it.
Senator Murray. OK. If you could get that answer back to
me, I would appreciate that.
If you do decide that this pilot should be expanded, how
are you going to roll it out consistently?
Admiral Dunne. Senator, the next step will be that the
Senior Oversight Committee is going to meet near the end of
August and will evaluate the report preliminary to providing it
to Congress. Should they accept the report and be satisfied
with the results or provide guidance to make some changes,
those will be implemented directly with each of the military
treatment facilities before implementation.
We have cued up right now a list of seven MTFs which we
plan to recommend to the Senior Oversight Committee that we
include them within the pilot. We have already conducted
training for those organizations. If we get additional guidance
from the Senior Oversight Committee, we would conduct that
training with those MTFs before we implemented it.
Senator Murray. OK. Will you share that information with us
as you move forward on it?
Admiral Dunne. Absolutely, Senator.
Senator Murray. OK. Let me change direction a little bit.
Earlier this month, the director of the VA's Center for
Women Veterans came before this Committee and testified that
her office was planning on working with DOD and VA, through the
White House Interagency Council on Women and Girls, to make
sure that the combat experience of female servicemembers and
veterans is properly documented in their DD-214s.
This is extremely important. I am hearing from a lot of
women who have been in Iraq, some in Afghanistan, who have come
home and do not have the proper documentation saying that they
were in combat areas. I wondered if either of you are aware of
that effort, and can you give us any progress on that so these
women get their proper service credentials when they come home.
Admiral Dunne. Senator, I am aware of the fact that we are
working with DOD, two parts of it, to get the DD-214
transferred to us electronically so that will also speed up the
process of us adjudicating claims; and to make sure that DOD
has all the requirements that we need from that DD-214 document
so that they can be incorporated into this electronic exchange
of information.
Senator Murray. OK. The problem begins in DOD where women--
particularly, but also some men who are in combat--experience
their records being notoriously incomplete or vague. It
particularly impacts women, where people are not so excited
about writing something in their DD-214.
So, Mr. Koch, are you aware of this problem and can give us
any input?
Mr. Koch. I am aware of it, Senator, and we are finding
that this, again, is a learning process. The sort of war that
we are involved in is requiring us to think in new ways about
how we handle this. I mean, it is just not cut and dried and
anymore.
I do not mean to be craven about it; I am not making
excuses about it, but what we are trying to get our arms around
are the multiple deployments, people who are trying to catch up
with their records; we are trying to catch up with their
records. And we do, but there are backlogs. In some cases, we
do not know that we have missed something until a servicemember
calls it to our attention, and that may take some time. So it
is something that the Department is concerned about and is
trying to address as quickly as we can.
Senator Murray. Well, I am going to continue to push
everybody on this because when somebody goes over and serves
our country and then--simply because somebody does not write
something on a form--comes home and is denied their care, to me
is just really unjust. This is something I care a lot about,
and I will continue to push all of you on this.
Admiral Dunne, let me ask you. GAO's testimony notes that
the VA is expecting an increase in claims as the result of an
October 2008 regulation change that affects the VA rating for
TBI, for Traumatic Brain Injury. Given the complexity of rating
TBI claims, what is the VA doing now to prepare its staff with
this expected increase in TBI claims?
Admiral Dunne. Senator, the regulation that was put in
place last October was the most up-to-date, best information--
medical evaluation--that we could obtain as a result of meeting
with many experts, both on the DOD side and on the VA side.
Our anticipation is that we will get additional claims, but
our claims processors--the folks who actually do the rating--
received training on the new regulation and how to apply it.
And we think as a result of the work that Mr. Pamperin and his
folks did, that the rating schedule in that area is much easier
to understand and easier for the medical folks to provide the
information that we need to put into the schedule.
Senator Murray. OK.
Mr. Pamperin. Ma'am, in addition to that, part of that
projection of increased workload is an outreach effort that we
have made for the people who are already service-connected for
TBI, advising them of the change in the schedule and encourage
them to come in if they feel that they have more than
subjective symptoms. We have done extensive training on TBI. We
have issued training letters on that, and I believe that we are
ready.
Senator Murray. OK. Well, this is something, too, that this
Committee, as you know, has followed very closely, especially
on knowing that a lot of men and women have come home and are
sitting somewhere in their community with symptoms, and have no
idea that it is Traumatic Brain Injury. We have had a lot of
resources put into this, so we want to make sure those folks on
the ground out there are trained and adequately following these
new procedures. So we will be following this closely, and I
appreciate that.
Senator Burr?
Senator Burr. Thank you, Madam Chairman.
Admiral, again, welcome. Thank you, and I thank your
colleagues for your service to our country's veterans. I really
appreciate it.
Admiral, in the stimulus package, we provided $150 million,
and the purpose of it was to hire the individuals to create a
surge in the claims process. According to the VA's 2010 budget
request, you suggested that the goal was to achieve an
additional 10,000 cases from that surge effort.
How many new hires does that $150 million provide?
Admiral Dunne. Senator, I believe that we will be able to
hire over 2,000 temporary employees. At the present time, we
have already hired almost 1,300 of them. So, some of them have
already started and we are in the process of training them so
that they can take on some of the other work--that which we can
quickly train them and get them started on.
Senator Burr. Do you stand by the goal of 10,000 claims
being processed based upon the surge capacity?
Admiral Dunne. Senator, I would tell you that that is not
based on any specific equation that I could put numbers into,
et cetera. We just had to take a look at how many people we
thought we could hire. The training that we can do to get them
proficient in some task. They obviously will not be able to
rate claims, but they can help us move different support
functions through the regional office faster. So while they
will not have a direct impact on claims, we believe it will be
an ancillary impact, and that is our best judgment on what we
think we can make happen.
Senator Burr. I appreciate that, and for the purpose of my
colleagues to understand that there is a learning curve that
these people have to go through, that you cannot go out in the
marketplace and hire people to walk in on day one and start
making disability determinations. One really cannot walk in and
process claims.
I might note that this is not a cheap investment. If, in
fact, we got 10,000 claims off of it, that is $15,000 a claim.
When you stop to think about it in those terms, you realize
just what the size of the investment is to try to address this
backlog, and to do it by increasing the number of claims that
can be processed by people.
I might say, the most refreshing thing I think I will hear
today, I heard earlier, is that we need to think in new ways. I
appreciate that thought, because I think that is what some of
us on the Committee have been saying for sometime. We have got
to a point where we have got to think outside the box. We have
got to look at doing things in ways that we have not done
before. We have got to reach out and look at technology, and
pull it in and say, how can you help us do this. But we also
have to look at the process that we have and ask ourselves,
where can we make changes that we are comfortable with that
shorten the period of time yet provide the right opportunities
to a veteran to make sure that their case has fully been heard.
Now, the DAV submitted a proposal to the Committee
outlining a number of recommended changes to the claims
process. In part, their proposal recommends eliminating certain
procedural steps that they see as unnecessary.
Admiral, do you agree with the basic premise that wherever
possible we should try to eliminate unnecessary procedural
steps in the claims and appeals process?
Admiral Dunne. Absolutely, Senator. I am working on that
right now.
Senator Burr. Then I would take for granted you are aware
of some of the steps that probably should be eliminated or
should be considered for elimination.
Admiral Dunne. Senator, I have my own list, yes.
Senator Burr. Today's testimony from the Government
Accounting Office mentions, and I quote, ``Each time appellants
submit new evidence, VA must review and summarize the case for
the appellant again, adding to the time it takes to resolve the
appeal.''
As we will hear later, ``the proposal from the DAV would
attempt to address this issue by providing the Board of
Veterans' Appeals with the authority to review the newly
submitted evidence in the first instance unless the individual
who files disagrees.''
Is that reasonable?
Admiral Dunne. Sir, when we get into the appellate
category, I have to defer to the lawyers because I might see
something where I would say we could do this faster, but I
would not want to deny a veteran his legal rights for
consideration of certain items.
Senator Burr. But if it could uphold that legal right, then
we should do everything to avoid these types of delays?
Admiral Dunne. Any delay. I am happy to get rid of sources
of delays, sir. So, as long as we take care of the veterans in
the process and they are amenable to it, I am in favor of it.
Senator Burr. OK.
Earlier this year at one of our hearings, I think a number
of organizations testified that the VA Appeals Management
Center should be dissolved. They called it a black hole. And I
realize there have been attempts to make changes within the
center. I would like you to be very candid with us.
Can you update us as to those changes and successes? Then,
at what point should we collectively look at that and either
say it has now worked or we need to eliminate it and move on?
Admiral Dunne. Senator, we have made some changes. One of
the changes we made is we put a new director at the AMC here in
Washington. He has made progress already. I think he will
continue to make progress.
One of my sources of information, of course, is talking
with the veteran service organizations. I meet with them
routinely--at a minimum, once a month--to get their inputs. I
plan to continue to work with them on this and other issues
where we can identify problems.
But, I truly believe that consolidating this into one area
is the best way to go in order to serve our veterans. I do not
deny that we have had some problems, but that is part of
putting the process together, and I think we will continue to
improve it.
Senator Burr. So, would I take away from that that we are
hopeful that a leadership change will resolve the deficiencies
that are there? Or are there other challenges that we are faced
with--local job market, et cetera--that come into play?
Admiral Dunne. Senator, I would say that this appellate
process is also affected by the fact that it is paper-borne as
well. So, to the extent that we can bring IT solutions into the
basic claims process, that also will help the appellate
process.
One of the big points that I am always making with the
folks that work on claims is that we need to continue to
improve our accuracy because the goal is to touch a claim once.
We want to create a reputation with our veterans that when we
take their claim, we handle it, we give them an answer--it is
the right answer--and that there will be a reduced number of
appeals as a result of that consistency and accuracy, in
addition to using IT solutions, sir.
Senator Burr. Well, I thank you for that.
Last question, Admiral, and it is slightly off of today's
topic, so I hope you will give me the leeway to do that.
I understand that the VA recently heard from a number of
family caregivers who have concerns about VA's fiduciary
program. My office has heard from some of the same caregivers
that voiced some concerns to the VA. These are wives and
parents and siblings of severely injured veterans who have
dedicated their lives to caring for the needs of those
individuals--their injured loved ones--and they feel that the
VA's fiduciary policies are demeaning and burdensome.
Do I have your assurance that you will take their concerns
seriously and will ensure that the VA's fiduciary policies are
not only looking out for the interest of the injured veterans
but also are affording the respect, trust and dignity that we
owe these family caregivers?
Admiral Dunne. Senator, I would tell you that I am sworn to
do that very thing, and I intend to do that. I can tell you
specifically that Mr. Pamperin here has already reached out to
several of the VSOs to meet with them and understand what their
concerns are with the fiduciary process.
That is always a difficult thing whenever a fiduciary has
to get involved on behalf of a veteran. We want to make sure
that it is done properly. We also want to recognize that we are
in a new environment and there are younger veterans and
families involved. So, we perhaps need to revise our rules and
processes, and that is exactly what we intend to evaluate and
pursue, sir.
Senator Burr. Admiral, I appreciate your candid answer and,
again, thank all three of you for your service to the veterans.
Thank you, Madam Chairman.
Senator Murray. Senator Johanns, do you have any additional
questions?
Senator Johanns. No.
Senator Murray. OK. I just have a few additional questions.
Admiral Dunne, you piqued my interest.
Can you tell us what steps in the claim process are on your
list for possible removal?
Admiral Dunne. I would be happy to, Senator. I will give
you an example of some of the items.
One is apportionment. When we get involved with a veteran,
family member, et cetera, where there is separation, one party
will apply to us for a portion of the veteran's benefits in
order to be properly supported. At the present time, there is a
very lengthy, detailed process--essentially, in the absence of
a court decision, for us to go in and play Solomon and decide
what the percentage breakdown should be.
I am trying to determine the proper way to approach this so
that our employees are not asked to play judge and jury but
rather to have a metric that they go by, which would be fair to
all concerned, and that would save us a considerable amount of
time.
We have seen some progress as a result of the fully
developed claim pilot, which Congress authorized us to do. In
that environment, where the veteran takes advantage of that, we
have been able to turn those claims around under the 90-day
goal that was set in the legislation. So, we intend to pursue
that. We are also seeing some success as a result of the
checklist, which is added to the letter--another pilot that
Congress authorized us to perform--and we would like to perfect
that as well.
Senator Murray. OK. Very good. I appreciate that.
One of the things I hear from veterans all the time is that
their paperwork is lost. I understand complex systems and
everything, but, Admiral Dunne, let me start with you.
What action can the VA and DOD take to make sure that
somebody's ship or unit location can be readily accessed by VA
employees so that they can substantiate a claim?
Admiral Dunne. Senator, I think the long-term answer is our
virtual lifetime electronic record, which, as you know, the
President charged both the Secretary of Defense and Secretary
of VA with pursuing. We are hard at work at that. I think that
is the long-term solution.
In the short term, some of the things that we have
accomplished--as you recall, last October we did have a problem
with shredding of documents, et cetera. I believe that the
records management program we have put in place as a result of
that situation is yielding benefits, and we are going to pursue
that. One piece of paper lost, one piece of evidence, is too
many. So, we just have to continue to work at it and keep
people's attention focused on the fact that that piece of paper
is a veteran; it is not just a piece of paper.
Senator Murray. Thank you. I appreciate that.
Mr. Koch, what can the DOD do to keep better records so
that we do not hear continuously from veterans that their
paperwork has been lost, cannot be found, and VA cannot
substantiate it?
Mr. Koch. Senator, I am not sure that the issue is the
quality of recordskeeping, but the management of those records
once they are created. I, frankly, do not know what the answer
to that is. I am sorry. I wish I could give you something more
straightforward, but I can not. People lose records--I think,
particularly, medical records.
Something as simple as putting these things into a thumb
drive that a servicemember could carry like an electronic dog
tag might make sense. But then you would have the question of
keeping these things updated, and that is always a difficult
thing to do, so that every time you go to get shots, that has
to be recorded. And sometimes it is difficult to keep these
things together and to keep them up to date.
So, there is a question of our responsibility to find a
solution to this, and the servicemembers share a responsibility
as well. Sometimes one side or the other does not do it. Of
course, as we understand very well, those are the exceptions
that come to our attention and that give us so many headaches.
What is not recorded is the vast majority of records that
are properly kept and are properly handled, which is not to
negate, as Admiral Dunne has said, one slip-up is one slip-up
too many. But in a perfect world, we would not have those slip-
ups. We are trying to create a perfect world, but I do not
think in my lifetime we are going to succeed at it.
Senator Murray. Well, we have to keep working at it for
sure because this is what we hear more than, I think, anything,
is somebody's complete frustration that they cannot get a piece
of paper that allows them to be able to substantiate and
process a claim. So, the burden is on you.
Senator Burr, you had another question?
Senator Burr. Yes, ma'am, one last one.
I chuckled, Mr. Koch, at the answer because I sat here
thinking, you know, MasterCard and Visa can find everybody in
America. And when they find them, they know exactly what they
make and they know exactly what risk they are taking.
I think sometimes there are real merits to us looking
outside of organizations that we are in and tapping into people
that, as you said earlier, think in new ways. It is not always
incumbent on us to think of all those new ways, but it is
incumbent on us to look out and find those entities that can
help us make that transition to new ways. I certainly encourage
the VA to do that in every appropriate area.
Admiral, last year, the Congress directed the VA to submit
a report regarding a study conducted by Economics Systems, Inc.
on the issues of earnings, loss, quality-of-life payments, and
transition payments. In part, the law required VA to set forth
what actions VA plans to take in response to the study, a
timeline for taking those actions, and any legislative changes.
But I do not see any planned actions or timelines laid out in
the VA's report.
Can you clarify whether VA plans to take any actions in
response to that study?
Admiral Dunne. Senator, we evaluated the study. I would say
that in the short 6-month period of time Econ Systems had to do
that, they did a good job of evaluation, et cetera. But what I
learned from that report is there is more information that we
need in order to make any decisions or make any
recommendations.
I also recognize that I believe we need an opportunity, a
time period for the Congress, all our stakeholders, to read
that report and evaluate what is in there because some of the
recommendations in there are truly national policy
recommendations which do deserve evaluation and debate. And for
us to have at this point, with only the information we have--
put forth a definitive ``this is what should be done,'' I think
would not be serving our veterans properly, sir.
Senator Burr. As a follow-up, does the VA have a position
right now as it relates to compensating veterans for any loss
in quality-of-life caused by their service-connected disability
or can I take the report as an indication that the VA does not
support it?
Admiral Dunne. Sir, I would take it as a recognition by VA
that there is more information that is needed and that there
is more discussion that needs to take place with many experts
before we would be prepared to say yes or no on any of those
recommendations.
Senator Burr. Admiral, I will not put you on the spot
today, but I would love for you to go back and converse with
the Secretary because I think what we need from you is what is
the next step. Rather than to have this lay dormant for some
period of time, I think it is absolutely essential that you
tell us whether the next step are congressional steps, the next
steps are VA steps, the next step is to stimulate the national
debate.
But I think that we have had a number of commissions
report, and I think many of us have expressed our strong desire
that the most recent two not join with the other commission
reports which have found there way to the shelf of dust. I
think that they were very specific as it related to the need to
move to a system that compensated for the loss of quality-of-
life. I think there was a consensus within the VA then, and for
the most part, I think, in Congress.
I just want to make sure that with this momentum we try to
come to some finality in the loss, that we get to that point.
If at the end of the day we determine we have a system that
cannot do that, then we have to decide whether we change the
system to accommodate it, or, in fact, we may find that we can
do this and incorporate it in the same system.
I happen to believe, as you know, that the disability
system needs to be, for the lack of a better word, updated to
reflect where we are and the new ways that we have got to think
in the future. I think a quality-of-life payment is probably
very appropriate in the context of the overall change to the
system.
Admiral Dunne. Yes, sir.
Senator Burr. I thank you and look forward to the comments
from you or the Secretary on what the next step is.
Admiral Dunne. Understood, sir. I will get you an answer.
Senator Burr. Thank you, Admiral; Madam Chair.
Senator Murray. If there are no further questions from the
senators, I want to thank this panel for your testimony and
your work. There will be time left to submit any questions from
senators. Again, thank you so much for your testimony this
morning.
With that, we are going to move to our second panel. Please
come forward and take your seats.
I want to welcome our second panel this morning. I will
introduce them as they are getting seated.
Our first witness is going to be Michael Allen. He is a
professor of law at Stetson University. Next, we have Daniel
Bertoni, the Director of the Disability Issues from the
Government Accountability Office, GAO. Our final witness is
retired Air Force Lieutenant-Colonel John Wilson. He is the
Associate National Legislative Director of the Disabled
American Veterans.
I thank all of you for being here this morning and
appreciate your appearing before this Committee. Your full
testimony will appear in the record. Professor Allen, we are
going to begin with you.
STATEMENT OF MICHAEL P. ALLEN, PROFESSOR OF LAW, STETSON
UNIVERSITY
Mr. Allen. Thank you, Senator Murray, Ranking Member Burr
and Members of the Committee. Thank you for the invitation to
testify here this morning. Most of the other witnesses have
talked about, or will talk about, the claims processing at the
administrative level. I am going to focus my remarks on the end
of the process, which is the appellate review--the judicial
appellate review of those determinations--because, as the
Members of the Committee have noted at many different times in
the past, what goes in at the beginning is going to make a
difference at the end of the pyramid.
This coming October marks the 20th anniversary of what we
now know as the U.S. Court of Appeals for Veterans Claims.
Until Congress enacted the Veterans' Judicial Review Act of
1988, there was effectively no judicial review of veterans'
benefits determinations outside of the VA administrative
process itself. So, the VJRA was itself a milestone in the
commitment, the evolving commitment, to veterans in the United
States, and I think it is an opportune time to look back and
see what has happened in the last two decades.
I should say that the addition of independent judicial
review of these veterans' benefits determinations has been
successful, and I think we can lose sight of that when we try
to think about ways to improve the system.
As I explain more fully in my written testimony, it has
been successful in a number of ways. One, it has dramatically
increased the uniformity and predictability of administrative
decisions. Second, it has enhanced the actual but also the
perceived fairness of the process and it has improved
administrative decisionmaking. But despite its successes,
independent judicial review has caused or contributed to
serious problems in the system.
First, and most importantly, as the Committee has noted now
and in past hearings, are the delays that veterans face as part
of the claims process. One cause of that is the dual layer of
appellate review, meaning appellate review first at the
Veterans Court and then a second appellate review at the U.S.
Court of Appeals for the Federal Circuit. There is no other
similar level of dual layer of appellate review right now in
the Federal system.
Second, there are, and as this Committee has noted in the
past, large numbers of remands. Those large numbers of remands
do not just occur from the board to the regional office within
the administrative system. They occur from the Veterans Court
back to the board, and this increases delay.
Third, there is an inability to adjudicate class actions or
aggregate litigation at the Veterans Court. And in lots of
other contexts, class actions can have bad or good
connotations, depending upon the political views. But, really,
the issue here is not the traditional class action; it is the
ability to handle a large number of claims that all have the
same legal issue at once. Those factors have led to increased
delay.
There is also tension between the Federal Circuit and the
Veterans Court. There are tensions between the Veterans Court
and the Secretary at times. Another problem with judicial
review has been an issue that Senator Murray alluded to in her
questions to the last panel, which is that the veteran can get
caught in the space between the administrative process and the
judicial process, because whether or not the VA process
continues to be non-adversarial, people can debate that.
But that is the stated purpose of the system. There is a
transition point from that system to judicial review before the
federal courts where it is a traditional adversary system, and
veterans face a difficult challenge moving from one to another.
So, there are these problems with judicial review.
So, what I would urge is for Congress to consider--and I
hate to use the word ``commission'' again, Senator Burr--a
commission or I will call it a working group perhaps, to study
the system. What changes can be made in the process from
beginning to end, including judicial review now that we have 20
years under our belts.
The key to this idea is that there is the widest possible
buy-in from affected groups: veterans, the Department and all
its facets, Congress and the relevant judicial bodies. And I do
not think this commission should be limited in what it can
consider.
To paraphrase Ranking Member Burr at a hearing in February,
``This commission should start with a blank piece of paper to
design this system with no preconceived notions. It has got to
keep the interest of veterans in mind, their paramount
constitutional issues of due process and separation of powers,
and the public's interest in the expenditure of resources.''
But beyond that, the system should take the time to step
back and see where we have been because, after all, only a few
hundred yards from here in 1865, Abraham Lincoln gave his
famous second inaugural address in which he called on the
Nation to stand up for the people who stood up for the country
and their dependents. We are still doing that today. So for me,
it is a distinct honor to even be a small part of the process.
Thank you.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Prof. Michael P. Allen,
Stetson University College of Law, Gulfport, FL
Mr. Chairman, Ranking Member Burr, and Members of the Committee:
Thank you for the invitation to testify this morning concerning the
current state of appellate review of veterans' benefits determinations
and how this review might be improved. It is a distinct honor to be
here to discuss this critically important topic for the men and women
who have answered the call to serve the Nation.
I am a Professor of Law at Stetson University College of Law in
Gulfport, Florida. For the past five years, I have had the pleasure of
studying the existing system for reviewing veterans' benefits
determinations. As I will explain, one should not lightly discount the
benefits of the current system given the reality that twenty years ago
there was no such review. However, there are clearly steps that could
be taken to improve the existing system. The time is ripe to do so. I
applaud the Committee for its attention to this important matter.
My testimony this morning is based in large part on prior work I
have done in this area. That work is discussed in more detail in two
law review articles to which I refer the Committee for additional
information: Michael P. Allen, The United States Court of Appeals for
Veterans Claims at Twenty: A Proposal for a Legislative Commission to
Consider its Future, 58 Cath. U. L. Rev. 361 (2009) and Michael P.
Allen, Significant Developments in Veterans Law (2004-2006) and What
They Reveal About the U.S. Court of Appeals for Veterans Claims and the
U.S. Court of Appeals for the Federal Circuit, 40 U. Mich. J.L. Reform
483 (2007). [See Appendix for article from Prof. Allen.]
As I explain below, I believe that Congress should appoint a
commission or other working group to consider possible improvements in
the process by which veterans' benefits determinations are reviewed.
While I have my own thoughts about this matter (some of which I will
share in my testimony), the key to any successful revision of the
system will be buy-in from the widest possible cross-section of
interested groups. As such, the commission or working group should be
comprised of representatives of all relevant constituencies including
veterans, the Department in all its facets, Congress, and the
appropriate judicial bodies. Only in this way will the successes of the
past twenty years be maintained and the way paved for an even brighter
future.
THE CURRENT SYSTEM IN CONTEXT
Until 1988, there was effectively no judicial review of
administrative determinations concerning the benefits to which veterans
and their spouses and dependants might be entitled under relevant law.
As the Supreme Court noted (quoting a congressional report), the
Veterans Administration operated in ``splendid isolation.'' Brown v.
Gardner, 513 U.S. 115, 122 (1994) (quoting H.R. Rep. No. 100-963,
pt. 1, p. 10 (1988)). This state of affairs changed with the passage of
the Veterans' Judicial Review Act of 1988 (the ``VJRA''), Pub. L. No.
100-687, 102 Stat. 4105 (codified as amended in scattered sections of
38 U.S.C.). The centerpiece of the VJRA was the creation of what is
today called the United States Court of Appeals for Veterans Claims
(the ``Veterans Court'').
In order to assess the current state of appellate review of
veterans' benefits determinations, and the role of the Veterans Court
in that process, it is useful to step back and consider a high-level
overview of the system. The Members of this Committee already have a
deep understanding of these matters. As such, what follows is simply a
general outline of what is a far more detailed system.
A veteran wishing to receive a benefit to which she believes she is
entitled begins the process by submitting an application with one of
the VA's regional offices (RO). If the veteran is satisfied with the
benefits awarded, the process is at an end. However, there are a number
of reasons why the veteran may be dissatisfied with the RO's decision.
When the veteran is dissatisfied with the RO's decision, she has
the option to pursue an appeal within the Department by filing a
``Notice of Disagreement'' (NOD) with the RO. The NOD triggers the RO's
obligation to prepare a ``Statement of the Case'' (SOC) setting forth
the bases of the decision being challenged. If the veteran wishes to
pursue her appeal after receiving the SOC, she must file VA-Form 9 with
the RO indicating her desire that the appeal be considered by the Board
of Veterans' Appeals (``Board'').
Congress provided that veterans are entitled to ``one appeal to the
secretary [of the Department of Veterans Appeals]'' when denied
benefits. See 38 U.S.C. Sec. 7104(a). That appeal in actuality is taken
to the Board. The Board is led by a Chairperson, appointed by the
President and confirmed by the Senate, and a Vice-Chairperson,
designated by the Secretary. The Board is comprised of approximately 60
Veterans Law Judges and over 250 staff counsel and other support
personnel.
The Board bases its decision ``on the entire record of the
proceeding and upon consideration of all evidence and material of
record and applicable law and regulation.'' See 38 U.S.C. Sec. 7104(a).
In addition to the material developed at the RO, the Board may also
conduct personal hearings with the veteran at which new evidence may be
added to the record. A final Board decision concludes the
administrative process.
If a veteran is dissatisfied with a final Board decision, she may
elect to appeal that decision to the Veterans Court, which has
exclusive jurisdiction to review such matters. The Secretary may not
appeal an adverse Board decision. See 38 U.S.C. Sec. 7252(a). Congress
created the Veterans Court under its Article I powers. See 38 U.S.C.
Sec. 7251. The Court is comprised of judges appointed by the President
with the advice and consent of the Senate to serve fifteen-year terms.
See 38 U.S.C. Sec. 7251(a), (b), (c). The Veterans Court has the
``power to affirm, modify or reverse a decision of the Board or to
remand the matter, as appropriate.'' See 38 U.S.C. Sec. 7252(a). The
Veterans Court is an appellate body that Congress specifically
precluded from making factual determinations. See 38 U.S.C.
Sec. 7261(c). The Court has ruled that its jurisdiction is limited to
denial of (or other dissatisfaction with) individual claims
determinations. Specifically, the Court has held that it is without
power to adjudicate class actions or other aggregate litigation
concerning more generic issues that may affect groups of veterans. See,
e.g., American Legion v. Nicholson, 21 Vet. App. 1 (2007) (en banc)
(holding that court lacked jurisdiction to adjudicate claims brought by
an organization as opposed to an individual veteran); Lefkowitz v.
Derwinski, 1 Vet. App. 439 (1991) (rejecting contention that court had
the authority to adjudicate class actions).
Any aggrieved party may appeal a final decision of the Veterans
Court to the United States Court of Appeals for the Federal Circuit.
See 38 U.S.C. Sec. 7292. Review of Federal Circuit decisions is
available by writ of certiorari in the Supreme Court of the United
States. See 28 U.S.C. Sec. 1254 (providing for Supreme Court appellate
jurisdiction concerning decisions of the courts of appeals). Review in
these Article III courts is limited by statute. Specifically, in the
absence of a constitutional issue, the Federal Circuit (and at least by
implication the Supreme Court) may review only legal questions; it
specifically is precluded from ruling on a factual determination or on
the application of law to the facts in a particular case. See 38 U.S.C.
Sec. 7292(d)(2).
Figure A summarizes the current procedures for considering
challenges to the determination of entitlement to veterans' benefits:
There is no question that at every stage in the process the current
system operates under a staggering workload. This Committee has held
numerous hearings over the past few years addressing this very real
problem. There is no need here to dwell upon the statistics at the
various adjudicatory levels in the process. For present purposes, the
summary below is sufficient to establish that the system is operating
at (or perhaps above) capacity:
Matters Before the Board
In Fiscal Year 2008, there were 40,916 cases received at the Board
(with 43,351 Form-9s filed). In FY 2008, the Board issued 43,757
decisions. See Fiscal year 2008 Report of the Chairman, Board of
Veterans' Appeals, available at http://www.va.gov/Vetapp/ChairRpt/
BVA2008AR.pdf.
Matters Before the Veterans Court
In Fiscal Year 2008, there were 4,128 new cases filed at the
Veterans Court. The Veterans Court decided 4,446 cases during that
period. See United States Court of Appeals for Veterans Claims, Annual
Reports, available at http://www.uscourts.
cavc.gov/documents/Annual_Report_-_20081.pdf.
Matters Before the Federal Circuit
In Fiscal Year 2008, there were 170 appeals filed with the Federal
Circuit from decisions of the Veterans Court. See Table: U.S. Court of
Appeals for the Federal Circuit--Appeals Filed, Terminated, and Pending
During the Twelve-Month Period Ended September 30, 2008, available at
http://www.cafc.uscourts.gov/pdf/b08sep08.pdf. This accounted for
approximately 12% of the Federal Circuit's filed appeals during that
period. See Chart: United States Court of Appeals for the Federal
Circuit, Appeals Filed by category FY 2008, available at http://
www.cafc.
uscourts.gov/pdf/ChartFilings08.pdf.
EVALUATION OF THE CURRENT SYSTEM
Now is an excellent time to take a step back and consider how the
current system of appellate review of veterans' benefits determinations
operates. This October, we will celebrate the twentieth anniversary of
the first convening of the Veterans Court. This important milestone
provides a time for reflection. That would be so even if the system was
not being flooded with claims and even if one believes it is operating
without difficulty. In my opinion, we owe it to veterans to evaluate
the functioning of the revolutionary changes of two decades ago.
My remarks will focus primarily on the judicial review portion of
the process. That is, I will largely confine my testimony to appeals
taken from the Board to the federal court system. In this portion of my
testimony, I will highlight the successes of judicial review and then
mention some of its shortcomings.
Successes of Judicial Review
It is easy to focus on areas on which the current system can be
improved. However, it is important to remember the many successes that
have resulted from the addition of independent judicial review of
veterans' benefits determinations. I highlight four such benefits.
First, independent judicial review has produced a body of law that
has at least begun to provide uniformity and predictability for those
seeking veterans' benefits. When the Veterans Court began operation
twenty years ago there were essentially no judicial opinions governing
benefits determinations. The ``law'' in the area consisted almost
entirely of the statutes passed by Congress and the actions taken by
the Veterans Administration in its ``splendid isolation.'' Today, we
are into the twenty-third volume of the Veterans Appeals Reporter
containing precedential opinions of the Supreme Court, the Federal
Circuit and the Veterans Court. These decisions provide broad rules
governing the claims adjudication process throughout the agency and
across the country. All actors in the system are in a position to know
the law when it is settled and to make reasonable predictive judgments
about outcomes in individual cases. Such uniformity and predictability
could certainly be said to be staples of the rule of law itself. Their
development over the past twenty years is an important success of
judicial review under the VJRA.
Second, over the past twenty years the Veterans Court has grown
into a strong, independent body. It is easy to forget the challenges
that faced the Veterans Court at its inception. The judges of the Court
were confronted with a situation almost unheard of in American law.
They were not only writing on a clean slate in terms of the content of
veterans' benefits law, they were also required to build an institution
from the ground up. Where was the Court physically to be located? How
was it to pay its bills? How did it fit into other governmental
structures? Answering all these questions was as important to the
success of the enterprise as was producing solid judicial opinions.
Once it was established physically, the Court then needed to focus
on its substantive work. One of the striking aspects of the history of
the Veterans Court is the conscious way in which the judges of the
Court over time developed the institution as a court. It is one thing
for Congress to say that it is creating a court of law; it is quite
another for that institution to become one. The Veterans Court's
efforts to make itself into an institution commanding respect is itself
a benefit of the judicial review process.
Third, judicial review has provided greater procedural protection
for veterans that has increased both the actual fairness of the system
as well as a perception of fairness in the process. There is no
question that one still hears complaints about fairness, but those
complaints pale in comparison to the complaints one heard when there
was no independent process to review administrative decisions. One
should not lightly discount how important the provision of independent
judicial review has been to the actual and perceived fairness of the
system as a whole.
Fourth, judicial review has improved the quality of administrative
decisionmaking in the system. Do not get me wrong. There are still
deficiencies in the decisions rendered at the administrative level.
However, the Veterans Court's rigorous enforcement of the statutory
requirement that the Board provide adequate reasons and bases for its
decisions, see 38 U.S.C. Sec. 7104(d)(1), has made a real difference in
both the transparency of decisions as well as the perception of a fair
process.
Problems with Judicial Review
Despite its very real successes, the current structure of judicial
review has caused or contributed to problems that should be addressed.
I briefly highlight four such issues.
First, judicial review has increased delays associated with the
review of benefits determinations. As this Committee has noted time and
again in hearings, there are unacceptable delays in reviewing benefits
determinations at almost every level of the current system. An
excellent overview of this issue can be found in the material
associated with this Committee's February 11, 2009, hearing concerning
Review of Veterans' Disability Compensation: What Changes are Needed to
Improve the Appeals Process?. Of course, with no other changes to the
system any addition of a review by an independent body would add some
measure of delay. The issue is that the way in which judicial review is
structured has increased delay beyond that required by providing for
such review in the first instance. There are three prime examples of
such needless delay:
The current system has two levels of appellate review
(leaving aside the possibility of review by certiorari in the Supreme
Court). A veteran dissatisfied with a Board decision may appeal as of
right to the Veterans Court. In addition, any party dissatisfied with
the Veterans Court's decision may appeal as of right to the Federal
Circuit. This double layer of appellate judicial review is unique in
the Federal system. It certainly adds time to the appellate process. Of
course, that time may be justified by other factors, such as a
perceived increase in the accuracy of decisions. Nevertheless, any
consideration of the current system needs to address this duplicative
appellate process.
As the Committee has noted, the prevalence of remands in
the system leads to increased delays in the resolution of disputes.
Remands are an issue at the administrative level due to the practice of
allowing claimants to have an initial adjudication followed by one
review at the Board level. The practical effect of this practice is
what has been called a ``hamster wheel'' process by which cases are
shuttled from the Board to the RO and then back again as new facts are
adduced. Remands are also a problem at the judicial level. Here, the
issue stems in large part from the statutory limitation on the finding
of facts at the Veterans Court. The Court was meant to be an appellate
body. As such, when an error is found--say, an inadequate statement of
reasons and bases by the Board--the Veterans Court's usual course is to
remand the matter for re-adjudication instead of reversing the Board's
decision and ordering that benefits be awarded. Such remands, even if
one assumes them to be mandated by current statute, unquestionably add
time to the resolution of disputes.
A final example in this area concerns the Veterans Court's
holdings that it does not have the authority to entertain class actions
or other forms of aggregate litigation. In the cases cited earlier in
my testimony, the Court reasoned that it was limited to cases in which
a veteran challenged a specific, individual Board decision. Again,
assuming that this reading of the law is correct, one cannot avoid
concluding that the absence of such authority to address multiple cases
at once has an effect on system-wide timeliness of adjudication.
Second, the current system of judicial review has built into it a
serious risk of prejudice to veterans. This prejudice flows from the
movement of the veteran from the administrative system that is designed
to be non-adversarial to the judicial process which is patterned on
traditional adversarial litigation. This movement can leave veterans,
particularly those unrepresented at the filing of a judicial appeal, at
risk of running afoul of rules designed to implement an adversarial
system. For example, the time periods within which veterans are
required to take certain actions in the administrative system are
generally longer and more flexible than the time periods they will
confront before a court. Such issues in transition are a significant
hurdle for many veterans moving between systems.
Third, there is at times an unusual tension between the Veterans
Court and the Federal Circuit. Under the current structure, both these
courts play important roles in the system. However, one cannot read the
opinions of these bodies without being left with the firm conviction
that there are occasions on which each court displays a certain lack of
respect for the other. I have discussed this issue in more depth in the
articles to which I referred earlier. For now, my point is that this
tension is a product of the current structure of judicial review.
Fourth, while the Veterans Court has worked diligently to establish
itself as an independent institution over the past twenty years, the
Department has not always acted in ways that reflect the respect the
Court is due. I believe the Department's attitude is at least partly
caused by the Veterans Court's status as an Article I tribunal with
Article III oversight in the Federal Circuit. A prime example of this
attitude can be found in the Department's actions concerning two
Veterans Court decisions with which the Secretary strongly disagreed.
One case concerned the Veterans Court's decision that a veteran was
entitled to independent ratings for tinnitus in each ear. Smith v.
Nicholson, 19 Vet App. 63 (2005), rev'd 451 F.3d 1344 (Fed. Cir. 2006).
The second dealt with a statutory presumption concerning exposure to
certain pesticides by those persons serving on naval vessels in the in-
land waters of the Republic of Vietnam. See Hass v. Nicholson, 20 Vet.
App. 257 (2006), rev'd sub nom Haas v. Peake, 525 F.3d 1168 (Fed. Cir.
2008). In each instance, the Secretary unilaterally ordered that the
Board stay the adjudication of all cases affected by the Veterans
Court's rulings while he sought an appeal. In neither instance did the
Secretary seek a judicial stay order. It is inconceivable to me that
the Secretary would have acted in this respect toward an Article III
judicial body. Perhaps he would not have done so if the Veterans Court
was the last realistic venue for appellate review (whether the Court
retained its Article I status or not). These actions reflect a serious
and dangerous impediment to the recognition of independent judicial
review. In both instances, the Veterans Court issued decisions critical
of the Secretary's actions. See Ribaudo v. Nicholson, 20 Vet. App. 552
(2007) (en banc) (concerning Haas); Ramsey v. Nicholson, 20 Vet. App.
16 (2006) (concerning Smith). I am not convinced, however, that the
Secretary's attitude will necessarily change if the current structure
remains in place.
In short, while the addition of judicial review has provided many
important benefits to veterans, it has also caused or contributed to
certain drawbacks in the system. The question then becomes: what should
be done?
WHAT SHOULD BE DONE?
In past hearings, Members of this Committee have made an important
point about changes to the current system of review of benefits
determinations. Specifically, Members have noted that one should
consider both focused changes in the current system as well as the
distinct question concerning more sweeping alterations. I believe that
this distinction is important. While my testimony is principally
focused on the latter issue, I begin this portion of my comments by
mentioning at least some targeted matters that could be undertaken more
immediately than any type of sweeping reform.
Some Targeted Matters
There are certain steps that could be taken within the current
system to address some of the drawbacks I have discussed above. I again
principally limit my testimony to the judicial review of benefits
determinations. I should note that some of the matters I mention are
already in the works in one form or another:
Congress has already taken one critically important step
to address some of the issues facing the system as currently
constituted: the addition of judges to the Veterans Court. In the
Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, 122
Stat. 4145, Congress authorized the addition of two judges to the
Veterans Court, bringing its complement to nine. Those additional
judges are temporary, with Congress set to re-assess the matter in
2012. I urge Congress and the President to act as expeditiously as
possible to fill these positions (which come into force in December
2009) and to monitor the effect of these additional judgeships on the
workload of the Veterans Court.
The Veterans Court itself has also taken steps to address
some of the difficulties veterans face, in particular issues involving
the movement from the non-adversarial administrative process as well as
the delays veterans face in the system generally. For example, under
the leadership of Chief Judge Greene, the Court has adopted a mediation
program that appears to be helpful in resolving cases. The Court has
also taken steps to address the assembly of the appellate record that
should help reduce delay. Finally, the Court has largely moved to a
paperless system that should also have a positive effect on the time to
disposition. I urge Congress to support the Veterans Court in these and
similar efforts.
One of the difficulties with assessing the successes and
shortcomings in the current system is obtaining relevant empirical
information. Relevant information is collected and disseminated by
different bodies (e.g., the Board, the Veterans Court, and the Federal
Circuit). As such, it is often difficult to compare apples to apples.
Without an empirical foundation, it is both challenging and potentially
dangerous to make changes in the system. I urge Congress to consider
whether there are means for a standardized collection of information
relevant to issues facing veterans in the system.
As I mentioned, the Veterans Court has held that it is
without the authority to adjudicate class actions or other aggregate
litigation. I believe Congress should amend Title 38 of the United
States Code to provide that the Veterans Court may adopt a class
action/aggregate litigation procedure. I do not believe Congress should
mandate that the Veterans Court adopt such a procedure. There are too
many interconnected issues for such a mandate to necessarily improve
the system. But the Veterans Court should have the clear authority to
adopt such a rule if the judges of that Court, in consultation with
those who practice in this field, conclude it would be beneficial to
the prompt and fair adjudication of claims on a system-wide basis.
Finally, the Veterans Court could more aggressively
exercise its authority to reverse Board decisions instead of remanding
them for further factual development. Deciding when a Board decision is
inadequate due to the failure to provide reasons and bases for a
decision or simply legally erroneous is a matter of degree. It is fair
to say that at this point the Veterans Court is far more inclined to
find that Board decisions are insufficiently supported by explanations,
a decision that leads to remand and delay. The Veterans Court should
consider whether more such decisions could actually be considered
simply erroneous, a result that would lead to reversal and an award of
benefits. While I believe that such a re-evaluation should be done, I
do not believe it should be mandated by legislation. The Court is in
the best position to make such decisions.
THE BIGGER PICTURE
This brings me to the more macro level questions concerning the
current system of review of veterans' benefits determinations. As I
alluded to at the beginning of my testimony, Congress should establish
a commission or other working group to study the judicial review of
veterans' benefits determinations. The Commission should be led by a
chairperson or chairpersons who are widely respected and seen to be
independent, particularly of influence from the Department. The leader
or leaders of the Commission must also be politically savvy as well as
capable of the follow though necessary to make the Commission's work
meaningful in the real world.
The Commission should be composed of representatives of all the
relevant constituencies affected by and involved in the award of
veterans' benefits. These constituencies include: veterans (and other
claimants in the system), most likely represented through the various
Veterans Service Organizations; the Department in all its facets (thus
the RO adjudicators, the Board, the litigation arm of the Department
and the Secretary, probably through the Office of the General Counsel,
should all be included); the Veterans Court; the Federal Circuit; and
Congress itself.
Congress should also ensure that the Commission has adequate
resources with which to perform its functions. The Commission should be
provided with a staff for, among other things, data collection and
analysis as well as space in which to work. It should also have funds
available sufficient to allow the Commissioners to travel so that
public hearings can be held to obtain the greatest input of views as
part of its work.
The Commission should be charged with evaluating the current state
of appellate review of veterans' benefits determinations and making
recommendations concerning what changes might be made to that system.
There should be no constraints imposed on the Commission with respect
to the options it might consider and/or propose. Finally, the
Commission should be directed to submit a report to Congress within a
defined period of time. That report should describe the Commission's
activities, provide relevant background and statistical information,
and set forth specific proposals for changes to the system warranted by
the Commission's investigation.
While the Commission should not be limited in terms of the matters
it considers, it should keep three interests in mind during its
investigation and deliberations:
The Interests of Veterans
The paramount interest the Commission must consider is that of the
veteran. The nation should never forget--and I am confident none of the
people involved in the process do--that the entire structure of
veterans' benefits law exists for the purpose of providing support to
the men and women who served this country. Thus, the Commission must
ensure that it proposes nothing that harms the interests of the
beneficiaries of the system.
Veterans' interests fall into five broad categories:
Accuracy: Veterans have an interest in ensuring that
decisions concerning the award of benefits be as accurate as possible.
The gains in accuracy that have likely been achieved over the past
twenty years due in part to judicial review should be preserved.
Fairness: It is critically important that the system of
awarding benefits and reviewing such decisions both be fair and be
perceived as being fair. Veterans need to believe that the system
provides an opportunity for their claims to be adjudicated in a manner
that is, broadly speaking, consistent with the rule of law. Thus, the
gains in the nature of VA decisionmaking (e.g., better reasoned
decisions) need to be preserved. In addition, the substantive fairness
of the process needs to be preserved as well. Finally, one needs to be
concerned with the speed of the decisionmaking process.
Transparency: Closely related to fairness is veterans'
interest in a transparent process. Largely as a result of the influence
of the Veterans Court (although aided by Congress), the process of
awarding benefits has become more open. That trend should be preserved.
Predictability: It is important that the Department and
veterans and their counsel be in a position to predict how issues will
be resolved. Of course, there will always be a level of uncertainty in
any legal system populated by humans. Nevertheless, the value of
enhanced predictability of results is important systemically.
Finality: No legal system can exist for long in any
functional respect if disputes never come to an end. Veterans, as well
as the VA, have an interest in having disputes resolved once and for
all. The value of finality should not drive the system. There should be
means of correcting errors, but those means need to be balanced against
the interests of repose. Thus, finality itself is a value that should
be considered when evaluating the current--or a future--system
concerning the award of veterans' benefits and the judicial review of
such decisions.
Institutional Concerns
A second interest that the Commission must consider concerns the
preservation of American constitutional values. In particular, the
importance in the American constitutional order of the maintenance of
separate and independent centers of political authority must be a part
of the Commission's deliberations. This is a structural concern. Thus,
it is important to preserve an independent institutional check on the
political branches' authority to award veterans' benefits.
The Veterans Court was created as an Article I tribunal, meaning
that its members do not enjoy the tenure and salary protections
afforded judges serving in the coordinate Article III judiciary. Under
well-established law, there is no structural constitutional violation
flowing from the assignment of the adjudication of disputes concerning
veterans' benefits to such an Article I tribunal. Veterans benefits are
a ``public right.'' That is, entitlement to benefits flows from
statutes instead of the common law or the Constitution itself. See,
e.g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458
U.S. 50, 69 n.22 (1982) (describing ``payments to veterans'' as an
example of a public right (citation omitted)); Congress has wide
latitude to assign the adjudication of disputes concerning such public
rights to non-Article III adjudicators such as the Veterans Court. See,
e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986);
Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985).
The institutional concern the Commission must consider is less
formalistic than a suggestion that one must necessarily have the
Article III judiciary (beyond the Supreme Court) involved in the
process to make it legitimate. Of course, that is one way in which one
could preserve institutional concerns regarding separation of powers.
But there are other ways in which such power divisions can be
established and maintained. The key is that one needs to ensure that
the system of review employed in the process contains sufficient
independence that there is a meaningful check on the unilateral
authority of the political branches.
The Public Interest
Finally, any consideration of the judicial review of veterans'
benefits decisions needs to take into account the public's interest in
maintaining a system that, while fair to veterans, also safeguards the
great resources devoted to veterans and their dependants. The public
has a right to ensure that the funds allotted to the Department for the
payment of veterans' benefits are spent according to the directions of
Congress.
As I near the end of my remarks, I wanted to highlight some of the
more important issues the Commission for which I have called should
address. This list is by no means exhaustive. Rather, it is meant to
illustrate some of the matters that I see as most significantly in need
of attention. Moreover, I do not necessarily suggest that any of the
steps I mention should be taken. The key is that they be considered. I
mention five primary matters:
The Commission should consider whether the Federal Circuit
should remain as part of the system for review of veterans' benefits
determinations. There is no question that having a second layer of as-
of-right appellate review adds delay to the system. On the other hand,
some could argue that any additional delay is justified by the error-
correcting function of the Federal Circuit. The question the Commission
should consider is whether any such error-correcting function is worth
the cost in delayed resolution. There is no requirement that the
Federal Circuit remain as part of the process. For example, the United
States Court of Appeals for the Armed Forces is an Article I court with
review by way of the writ of certiorari in the Supreme Court. While I
have reached no firm conclusion on this point, I lean toward removing
the Federal Circuit from the process. The fact is that delayed
resolution in the system is a significant problem. The removal of the
Federal Circuit is a relatively easy way to reduce delay.
If the Federal Circuit remains in the appellate review
system, the Commission should consider whether that court's
jurisdiction should be expanded. As I have mentioned, at present the
Federal Circuit is precluded from reviewing factual determination or
the application of law to fact. This prohibition leads to a fair amount
of ink being spilled as to whether a certain issue is one dealing with
a pure legal question or rather it concerns the application of law to
fact. If the Federal Circuit is deemed to add value to the process,
consideration should be given to whether the benefits of the current
jurisdictional restrictions outweigh the costs.
A third issue the Commission should consider is whether
the Veterans Court should be converted into an Article III body. Such a
conversion, if warranted, could take place regardless of whether the
Federal Circuit remained as part of the appellate review process.
Article III status could augment the respect the Veterans Court
receives from the Secretary as well as other courts. In addition,
Article III status would allow the court to more easily utilize the
support mechanisms for the Federal judiciary. Of course, there are also
potential negative effects of a conversion, including less turnover in
judges and, perhaps, greater politicization of the appointment and
confirmation process.
The Commission should consider the appropriate place of
the Board in the appellate process. As Members of the Committee have
noted in the past, the Board came into existence in a time when there
was no judicial review. Given the fundamental shift twenty years ago
ushering in the current era of judicial supervisor, a fresh look should
be taken at the Board's function as well as its structure.
Finally, the Commission should evaluate the jurisdiction
of the Veterans Court. The Court is currently prohibited from making
factual determinations. I suspect that any review would likely conclude
that the Court should remain an appellate tribunal without fact-finding
authority. However, the prohibition on fact-finding does have an effect
on delays in the system because the Veterans Court often feels
compelled to remand matters in which it has found an error instead of
reversing Board decisions outright. The Commission should consider
whether there are statutory changes that could be made that would
preserve the Veterans Court's status as an appellate body but also
decrease needless remands.
CONCLUSION
In conclusion, I want to stress that nothing I have said here today
should be taken to cast aspersions on anyone involved in the current
system for the award and review of veterans' benefits. I firmly believe
that the people who have elected to devote a good portion of their
professional lives to working in this system have nothing but the best
interests of veterans at heart. In many respects, they are heroes
themselves because they are a contemporary example of President Abraham
Lincoln's call in his famous Second Inaugural Address (as slightly
edited to reflect today's society) for the Nation ``to care for him
[and her] who shall have borne the battle and for his widow [or her
widower], and his [or her] orphan.''
Thank you again for allowing me to testify today.
Senator Murray. Thank you.
Mr. Bertoni?
STATEMENT OF DANIEL BERTONI, DIRECTOR, DISABILITY SERVICES,
GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Bertoni. Senator Murray, Members of the Committee, good
morning. I am pleased to be here to discuss the Department of
Veterans Affairs Disability Compensation Claims process. I want
to preface my remarks by saying some of the numbers I will
reference today will be slightly different than what we have
been hearing. We focused for this Committee on our ongoing work
only on compensation claims. We have isolated DIC and pension
out of our analyses, so the numbers will be slightly different
although the trends are consistent.
Last year, VA paid over $31 billion of disability benefits
to 3 million veterans. For years, VA's claims process has been
a subject of concern due to long waits for decisions and large
numbers of pending claims. My statement today is based on prior
and ongoing work for this Committee and discusses trends and
compensation claims a s w e l l a s t h e s t e p s t h e
a g e n c y i s t a k i n g t o i m p r o v e s e r v i c e
delivery.
In summary, over the last decade, disability workloads have
improved in some areas and worsened in others. Since 1999, VA
has steadily increased the number of initial claims processed
annually by 60 percent to 729,000, and the agency has realized
substantial gains in the number of claims processed over the
last three fiscal years.
Last year, compensation claims were pending an average of
123 days, down from 152 days in 1999, but still in excess of
VA's goal of 116 days. Despite these gains, the inventory of
claims waiting a decision has increased 65 percent to 340,000.
Those pending more than 6 months have increased by 20 percent.
More recent data shows that pending claims declined slightly
between 2007 and 2008. However, the average time VA took to
complete a claim increased from a low of 181 days in 2004 to
196 days in 2008.
Regarding disability appeals, VA has also experienced some
gains and setbacks. Since 2003, the number of appeals processed
increased by 22 percent and the number of pending cases
decreased from 126,000 to 95,000. Unfortunately, average
processing time has trended upward from 543 days in Fiscal Year
2003 to 639 days--over 21 months--last year.
Various factors have contributed to the trends in
disability workloads, including substantial increases in the
number of claims received, growing claims complexity and laws,
court decisions and regulations changes, which have expanded
workloads over time.
VA has taken several steps to expedite service to veterans.
First, the agency has hired thousands of additional claims
processing and appeals board staff and plans to use Recovery
Act funds to hire 1,500 additional support staff going forward.
This infusion of staff has helped VA process more claims,
and that explains the positive trends in recent data. However,
VA has cautioned that per person productivity will decrease in
the short term because it takes from 3-5 years for staff to
become fully trained and proficient. We have also noted that
quickly absorbing these staff will likely pose substantial
human capital challenges going forward in regard to training
and deployment.
Second, beyond increasing staff, VA has also expanded its
efforts to redistribute key workloads to 15 resource centers.
These centers process claims for backlogged offices, often
specializing in distinct phases of the process, such as claims
development or ratings. In fiscal year 2008 alone VA
redistributed over 140,000 ratings cases. And although such
actions could improve processing time and consistency, VA has
not yet collected key data to evaluate the effectiveness of
these centers.
Third, VA has expanded efforts to assist servicemembers in
filing claims prior to leaving the military when their
personnel and medical records are most accessible and up to
date.
In 2008, VA received 32,000 claims through this program
known as Benefits Delivery at Discharge or BDD. To improve
consistency, all BDD rating activities are consolidated at two
VA regional offices, and on average, processing times for these
claims are shorter than for other claims. However, we have
recommended that VA take additional steps to improve its
measure for BDD timeliness and quality and to ensure access to
members of the National Guard and Reserves who represent 1 in 4
disability applicants.
While VA has a number of other initiatives underway, I will
conclude by noting that it is piloting a joint disability
evaluation process with DOD to improve the transparency,
timeliness and quality of disability evaluations. Key pilot
features include a single physical exam and a single disability
rating prepared by the VA for determining both military
retirement and VA disability benefits. If the pilot is
successful, the likely outcome will be worldwide implementation
of this streamlined system and a substantial change in the way
many veterans first receive VA benefits.
We have noted, however, that broader expansion will require
development of a comprehensive service delivery plan, sound
performance measures, and resolution of key operational
challenges, such as who will perform the single physical exam
at locations where there is no VA facility nearby. Both
agencies have been working to address these and other concerns.
Senator Murray, this concludes my statement. I am happy to
answer any questions you may have. Thank you.
[The prepared statement of Mr. Bertoni follows:]
Senator Murray. Thank you very much, Mr. Bertoni.
Colonel Wilson.
STATEMENT OF JOHN L. WILSON, LT. COL, USAF (RET.), ASSOCIATE
NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS
Colonel Wilson. Madam Chair, Members of the Committee, I am
glad to be here today on behalf of the Disabled American
Veterans.
As you know, the claims process is complex and lengthy. VA
estimates that it will decide over 940,000 claims in 2009, but
it may well be 1 million considering the total workload. It is
also important to note that the VA has decided close to 200,000
more claims than it decided just 2 years ago, which is a likely
indication that the VA is making good use of the additional
staffing provided by Congress over that same period. What is
discouraging is that the VA may actually receive just as many
new claims as it decides this year, which is also close to
200,000 more than just a couple of years ago.
Short of growing VA's workforce indefinitely, what
solutions are available to us? The DAV believes it has a viable
solution. We have presented this Committee with the DAV's 21st
Century Claims Process proposal, which is intended to simplify
the process while preserving resources and reducing
expenditures.
Our proposal begins with the initial stages of the claims
process and continues through the entire appellate process. Our
recommendations are carefully aimed at making efficient a
rather inefficient process without sacrificing a single earned
benefit.
They include: (1) amending legislation to indicate that the
VA
will assist a claimant in obtaining private medical records
only when such assistance is requested by the claimant on a
form prescribed by the Secretary; (2) amending legislation to
allow the VA on its own to waive all VCAA requirements when it
determines that evidence of record is sufficient to award all
benefits sought; (3) amending legislation so VA could issue
appeal election letters at the same time as the initial rating
decision; (4) amending legislation to decrease the period in
which a VA claimant may submit a timely notice of disagreement
to the VA, following the issuance of a VA rating decision from
1 year to 6 months; (5) amending legislation in a manner that
would specifically incorporate an automatic waiver of regional
office jurisdiction for any evidence received by the VA, to
include the board, after an appeal has been certified to the
board following submission of a VA Form 9 unless the appellant,
or his or her representative, expressly chooses not to waive
such jurisdiction.
These and other suggested changes could result in reduced
pre-appellate stage processing time between 30 and 90 days, and
as high as a 3-year reduction for certain post-remand appellate
cases.
My written testimony contains many more details regarding
these suggestions, to include how they could be incorporated
into a new digital claims process as part of a new electronic
record and imaging scanning center. Implementation of this
legislative package will result in a dynamic responsive claims
process with flexibility for future growth.
In closing, the VA will never be able to maximize its
recent increases in staffing without making its processes more
efficient. If such changes are made, the VA will see vast
improvements in its entire claims process that are essential to
achieving the broader goals of prompt and accurate decisions on
claims. Likewise, only then will the VA be able to incorporate
training, quality assurance, and accountability. Such programs
have been demanded by the veterans community.
It has been a pleasure to appear before this honorable
Committee today and I look forward to your questions.
[The prepared statement of Colonel Wilson follows:]
Prepared Statement of John Wilson, Associate National Legislative
Director, Disabled American Veterans
Mr. Chairman, Ranking Member and Members of the Committee: I am
pleased to have this opportunity to appear before you on behalf of the
Disabled American Veterans (DAV), to address problems and suggest
solutions to the Department of Veterans Affairs (VA) disability claims
process.
The claims process is complex as a result of the scope of benefits
that the VA is mandated to consider and potentially deliver. The DAV
has presented this Committee with our comprehensive suggestions for
what we have dubbed the 21st Century Claims Process. Our suggestions
would help reduce the Veterans Benefits Administration claims backlog.
DAV's 21st Century Claims Process represents an ambitious but
achievable goal. The proposal benchmarks certain milestones be achieved
by VA with assistance from Congress. Essentially, our plan focuses on
creation of digital architecture to
receive and manage all claims, as well as legislative changes to
streamline the
process.
The legislative recommendations are not only vital to the success
of this proposed process, but will also bring cost-savings efficiency
to the current claims process--efficiency perhaps equaling more than
100,000 reduced work hours annually and reducing initial average claims
processing time by at least 30-90 days.
We have shared this proposal with committee staff, current and
former VA officials, and other veterans' service organizations. Their
recommendations were incorporated where feasible.
In DAV's plan, the initial claims process (pre-appellate stage)
essentially consists of adjudication stage one, adjudication stage two,
and a rating team. Adjudication teams one and two will perform
functions similar to the current triage and predetermination teams, but
in a revised and more efficient format.
The backbone of the entire 21st Century Claims Process is the
Imaging Scanning Center (ISC)/drop box-mail point and a data-centric
claims management system. An opportunity to benchmark an effective
system records management system and data-centric application with
adjudication features can be found at the Social Security
Administration.
In our current draft of this process, all paper claims and paper in
support of claims will be routed to the ISC for immediate imaging and
inclusion in the electronic record. The electronic records warehouse
center should be housed centrally and accessible by all points in VBA.
The ISC and electronic records center (electronic warehouse) will be
linked directly to each other with a dedicated and secure, high-speed
connections.
Another benefit to the proposed system would be that any evidence
received by the ISC would be viewable in the official record the
following day. It currently takes many days, or even weeks, for VA to
incorporate new evidence into a claims folder. Lost or incorrectly
destroyed records would be a problem of the past. In addition, data-
centric forms would be developed
Upon receipt of the claim by ``team one,'' the claim would be
analyzed on a data-centric form with one of the design features
displaying the veteran's intent with respect to the type of benefit(s)
claimed. This will facilitate immediate establishment of ``end product
codes'' (or viable replacement system). In addition to utilizing data-
centric forms for rapid claims identification and establishment, such
data-centric forms and resulting codes will also be utilized to
determine the kind of ``notice'' VA is required to send the claimant,
and (as near as possible) the type of assistance VA is required to
offer the claimant in developing the case.
For example, consider a veteran requesting an increased rating for
a single service-connected disability that does not have supporting
private treatment records (PTRs), and therefore only needs a current VA
examination. The claims form would clearly annotate that the veteran is
requesting an increased rating for XYZ disability and has not received
treatment outside of VA. Under the current process, the veteran is
required to undergo the entire development process, despite that fact
that the veteran only requires a current VA examination. Therefore,
legislative amendments to VA's ``duty to notify/assist'' are necessary
so as not to require VA to undertake futile development in such a case.
If the same scenario occurred but the veteran had PTRs, such info
must be clearly indicated on the claims form. The modified notification
letter would then inform the veteran that VA requests he/she obtain the
PTRs and submit them to VA (mailed to ISC) within 30 days. The same
notification would also clearly and in understandable language inform
the veteran that if, and only if, he/she cannot or will not obtain
PTRs, then VA will assist if the veteran submits VAF 21-4142 (enclosed
with notification only in cases where PTRs are indicated on the claims
form).
In addition to the this change regarding development of private
records, another legislative change to current Duty to Assist
requirements should be incorporated that would allow the VA on its own
to waive all notice and assistance under the Veterans Claims Assistance
Act (VCAA) of 2001 when the VA determines that the evidence of record
is sufficient to award all benefits sought. Such a change would be
instrumental in expediting numerous types of claims wherein the VA must
currently follow all VCAA requirements despite having evidence
sufficient to award benefits. (E.g., certain claims under 38 CFR
Sec. Sec. 3.22, DIC benefits for survivors of certain veterans rated
totally disabled at time of death; 3.309, Disease subject to
presumptive service connection; 3.312, veteran's death considered
service-connected when the evidence establishes disability was either
the principal or contributory cause of death; 3.350, Special monthly
compensation; 4.16, Disability Ratings for Compensation Based on
Individual Unemployability; 4.28, temporary total rating based on
convalescence; 4.29, Ratings for service-connected disabilities
requiring hospital treatment or observation.; 4.30, Convalescence
ratings; etc).
The recommendation to allow the VA to waive, on its own, all notice
and assistance for claims when the VA can award all benefits sought
should be utilized in conjunction with section 221 of Public Law 110-
389, the Veterans Benefits Improvement Act of 2008. This section, among
other things, directs the Secretary to carry out a pilot program at
four VA regional offices to assess the feasibility and advisability of
providing to claimants and their representatives a checklist of
information and evidence required to substantiate a claim.
However, if utilized in conjunction with this recommendation, such
a checklist could be crafted in accordance with specific regulations as
mentioned above. A memorandum of understanding (MOU) could then be
drafted between the VA and all service organizations housing
representatives within each regional office. The MOU should specify
that each representative screen cases that qualify under certain
prescribed guidelines, and then deliver such cases directly to one or
two designated VA rating specialists for no less than a two-week turn
around for rating such a case.
In the 1990s, VBA conducted a pilot program in the St. Petersburg
regional office under the title, ``Partner Assisted Rating and
Development System.'' (PARDS). Our recommendation is similar to the
PARDS pilot.
This approach would not require VA employees to spend valuable time
screening cases that could qualify under this expedited plan. It would
also engage representatives in a more structured and less interest-
conflicting manner. If executed properly and maximized to its fullest
potential, such a procedure could have the potential to produce close
to 100,000 rating decisions per year within two weeks processing time.
Regarding other claims, the items team one can complete under this
plan will require one to three days, but should not require more than
one week. Under the current disability timeline, these same functions
take 44 days on average.
Following completion of team one functions, the electronic claim
immediately goes to team two. With the exam requested and the
notification sent to the claimant (or waived), team two will require
little or no action on the case. Team two serves primarily as a more
advanced stage of development for those cases with more complexity,
such as those requiring stressor or other service information
verification, development of private records, or complexities returned
from the rating team. Team two will not be forced to deal with many of
the activities that complicate functions of its current equivalent, the
pre-determination team. Therefore, team two will be able to take more
time and potentially produce more accurate rating decisions for more
complex cases.
The actions of teams one and two must take place in a fluid, but
accurate manner. If executed properly, many cases received by VA will
be ready to rate within 30 days because the notice response (to the
current VCAA process) will be complete as will any required
compensation and pension (C&P) examinations. The rapid initiation and
synchronized completion of these two milestones are the keys to success
in this revised process.
Many cases will inevitably require extended processing times due to
development that cannot be streamlined because of inter-agency
roadblocks, (i.e., combat-stressor development from the Department of
Defense's Center for Research of Unit Records). However, many other
cases, such as ones similar to the examples above, could be ready to
rate much faster than 60 days because of considerably fewer
developmental requirements.
The 21st Century Claims Process achieves, on average, at 30 days
what the current paper-locked, procedure-heavy system achieves at
approximately150-160 days.
Once ready to rate within 30 days, the final rating team will have
30 days in which to issue a decision, a process that currently takes 13
days on average. With more time to review cases by the rating teams,
contained within a much shorter overall processing time, decisionmakers
can focus far more on quality than the current system allows, but
without sacrificing production standards. This process will be greatly
enhanced by even a modest rules-based automated rating system--one that
will quickly and accurately process cases wherein there is nearly no
room for debate, such as hearing loss and tinnitus ratings or paragraph
29/30 (hospitalization and convalescence) ratings, among others.
When VA issues a rating decision, an appeal election letter will be
included. This will prevent VA from having to mail more than 100,000
letters annually to claimants appealing their decision and will reduce
the appellate processing time by 60 days. The letter will explain that
any notices of disagreement submitted without electing a post-decision
review (DRO) process will automatically be reviewed under the
traditional appeal process. (The same thing currently happens if a
claimant does not respond to the appeal election letter). This could be
accomplished either by a legislative or administrative change. If
addressed legislatively, 38 U.S.C. 5104(a) would be modified to permit
inclusion of an appeal election letter. As noted earlier, the VA does
have the option, through proper rulemaking procedures, to amend current
guidance and make an administrative change to accomplish the same task.
A claimant wishing to appeal a decision will have 180 days in which
to do so versus the current one year. This will require a legislative
change. We realize that some may impulsively draw several inferences
onto this idea. Those inferences will likely be misplaced--our
ambitious goal is to take every opportunity in which to bring
efficiency to VA's entire claims process so that it can better serve
our Nation's disabled veterans today and in the future. We must be open
to change for such a goal to succeed.
To put this issue into perspective, the average time it took the VA
to receive a notice of disagreement (NOD) in 2008 was 41 days. In fact,
92,000 out of just over 100,000 NODs were received within the first six
months of 2008.
This is also an opportunity to bolster certain statutory rights for
which the law is currently silent. When amending the appellate period
from one year to 180 days, Congress must include an appellate period
extension clause and equitable tolling clause to the appropriate
section of law concerning NODs.
Specifically, we recommend changing the law so that an appellant
may, upon request, extend his/her appellate period by six months beyond
the initial six months. We also suggest an amendment to provide for
equitable tolling of the appellate period in cases of mental or
physical disability so significant to have prevented a VA claimant from
responding within the specified time. Again, the Social Security
Administration has a generous good cause exemption that could apply
here as well.
If the appeal is not resolved, the VA will issue a Statement Of the
Case with an amended VAF-9. The amendment will explain that evidence
submitted after the appeal has been substantiated to the Board of
Veterans Appeals (Board) will be forward directly to the Board and not
considered by the regional office unless the appellant or his/her
representative elects to have additional evidence considered by the
Regional Office (RO). This opt-out clause merely reverses the standard
process without removing any choice/right/etc. from an appellant. This
change will result in drastically reduced appellant lengths, much less
appellant confusion, and nearly 100,000 reduced VA work hours by
eliminating the requirement to issue most supplemental statements of
the case. A legislative change, amending 38 U.S.C.A. 7104 in a manner
that would incorporate an automatic waiver of jurisdiction of Regional
Office jurisdiction authorizing VA to allow the veteran to instead opt-
out of his/her case being transferred to the BVA.
The Appeals Management Center (AMC) is essentially a failure and
should be disbanded. The AMC received nearly 20,000 remands from the
Board in fiscal year (FY) 2008. By the end of FY 2008, the AMC had
slightly over 21,000 remands on station. By the end of January 2009,
they had approximately 22,600 remands on station. The AMC completed
nearly 11,700 appeals, out of which 9,811 were returned to the Board,
89 were withdrawn, and only 1,789 were granted. In fact, 2,500 appeals
were returned to the AMC at least a second time because of further
errors in carrying out the Board's instructions, over a 25-percent
error rate. This means the AMC's error rate was higher than its grant
rate. Such a poor record of performance cannot be allowed to exist
anywhere in the VA claims process. Returning these cases to their
respective jurisdictions will help ensure accountability, and most
likely reduce the number of cases that proceed to the Board.
The VA will require an additional ``administrative team'' that is
not technically part of the claims or appeals process teams. This
groups' function will be to handle daily tasks required by VA but that
are not necessarily part of the ``claims process.'' These tasks include
subordinate or administrative functions such as complying with records'
requests under the Freedom of Information Act, serving as attorney fee
coordinators, responding to informal claims, and many others that are
administrative only. Currently, post- or pre-adjudication teams handle
many functions for which they do not receive work credit and/or are
otherwise not a required part of the claims process. Placing these
functions under the responsibility of an administrative team dedicated
solely for such tasks will free up resources that can be utilized
specifically for claims processing, resulting in increased efficiency
ADMINISTRATIVE/LEGISLATIVE CHANGES
1. Amend 38 U.S.C. Sec. 5103A (b) to indicate that VA will assist a
claimant in obtaining private medical records when such assistance is
requested by the claimant on a form prescribed by the Secretary. This
will pave the way for some of the changes discussed above. (Process
time saved--30 to 90 days (estimate) on average; work hours saved--
unknown but very significant.)
2. Amend 38 U.S.C. Sec. Sec. 5103, 5103A to allow the VA to on its
own waive all VCAA requirements when it determines that evidence of
record is sufficient to award all benefits sought. (Process time and
work hours saved are unknown but very significant.)
3.Title 38 U.S.C.A. Sec. 5104(a) states, among other things, that
when VA notifies a claimant of a decision, ``[t]he notice shall include
an explanation of the procedure for obtaining review of the decision.''
38 U.S.C.A. Sec. 5104(a). An appeal election choice is part of that
notice; therefore, the VA could modify 38 CFR Sec. 3.2600 in order to
facilitate the changes suggested above. (Process timed saved--60 days
per appeal (estimate); work hours--approximately 50,000 (estimate).)
4. Congress should decrease the period in which a VA claimant may
submit a timely notice of disagreement to the VA following the issuance
of a VA rating decision from one year to six months by amending 38
U.S.C. Sec. 7105.
5. Amend 38 U.S.C.A. Sec. 7104 in a manner that would specifically
incorporate an automatic waiver of RO jurisdiction for any evidence
received by the VA, to include the Board, after an appeal has been
certified to the Board following submission of a VA Form 9, unless the
appellant or his/her representative expressly chooses not to waive such
jurisdiction. (Process time saved--60 to 180 (estimate) days for
affected appeals at local offices; up to 2 years for appeals otherwise
subject to remand; work hours--in excess of 50,000 at local offices
(estimate), unknown but significant at the Board)
6. Average total savings, 30 to 90 days pre-appellate stage.
Average total savings for pre and post appellate cases (cumulative); 90
days minimum in most cases and as much as 90 to 330 days pre-remand.
Potentially 3 years post-remand for affected cases.
All of the above changes can and should be implemented as soon as
possible. They will adapt to the current process and produce short term
results.
7. Disband the Appeals Management Center and return remanded
appeals to original rating team.
8. VA will be required to amend its claims form (VAF 21-526) as
well as create and specify the form that must be used (post 21-526) for
all re-opened and new formal claims.
CONCLUSION
We are confident these recommendations, if enacted, will help
streamline the protracted claims process and drastically reduce undue
delays. Some of recommendations contained herein may appear novel and/
or controversial at first; they may even draw criticism. However, such
a response would be misdirected. These recommendations are carefully
aimed at making efficient an inefficient process without sacrificing a
single earned benefit.
Mr. Chairman, we have provided your staff as well as the staffs of
Chairman Filner, Ranking Member Buyer, and Ranking Member Burr, with a
copy of the DAV's proposal.
Senator Murray. Thank you very much to all of you for your
testimony.
Mr. Bertoni, let me begin with you. You testified that the
VA has not collected data to evaluate the impact of using the
research centers to redistribute workload. We have heard that
mentioned by several of our colleagues this morning with
concerns about that.
Can you tell us what measurement you would recommend the VA
use to evaluate the effectiveness of these centers?
Mr. Bertoni. Sure. I think critical to any of these
processes is timeliness, accuracy, and consistency. I think it
behooves any manager, as opposed to going out talking to the
troops, trying to discuss issues on site--that is all important
and good--but I think there is no substitute to the data to
help management make good data-driven decisions. So, if you
have a resource center and there are indications--and you do
the analysis, and there are indications of problems in certain
areas--you can make remedial interventions.
To date, I do not believe that is occurring. I think even
very recently, I do not believe there were any quality
assurance reviews being conducted. So, that would be, first and
foremost, very critical: what type of quality assurance reviews
are being done; what is the MI data showing; and what do you do
with that data going forward to make the interventions that
need to be done?
Senator Murray. OK. Thank you very much for that.
Mr. Allen, you talked about the current structure for
judicial review of veterans' benefits, and it has two appellate
levels: the Veterans Court and Federal Circuit, which you
indicate increased delays and could be duplicative.
You raised the option of removing the Federal Circuit from
the structure of the veterans' benefits determination process
as one way of perhaps reducing some of the delays in this
system. It did not sound like you were a hundred percent
committed to that, but can you tell us why you sort of lean
toward the Federal Circuit?
Mr. Allen. Sure, Senator. Let me start out by saying that
it seemed to me that when Congress created the Veterans Court,
one of the things it was trying to do was create an independent
body to review these issues outside of the VA and that that
body would be the expert in that area of the law. But since
this was a new process, it provided for this second layer of
review at the Federal Circuit.
Now, I should say that the level of review at the Federal
Circuit is not plenary; it is not total. The Federal Circuit
does not have jurisdiction to review any matter of fact or,
quite oddly, any application of law to fact. It, in theory,
should only review pure questions of law.
Now, it made perfect sense to structure the system, at
least in my view at the time, like that. Today, I think that
unbalanced. It is not worth having the Federal Circuit involved
anymore. And I do not say that lightly because that is a major
change.
What it goes to is, what are the competing values that one
wants. Because if the value that was absolutely top on the list
was making sure that the maximum number of judges' eyes looked
at a case, figuring that that would reduce overall inaccuracy
in decisions--well then, it might make sense to have this two-
level court.
To use a silly analogy, if your absolute, 100 percent,
number 1 value in a day is making sure that your pants do not
fall down, wearing belt and suspenders makes perfect sense. It
is not irrational because that is your value. But I think that
for the Federal Circuit employment here, it is not having the
maximum number of eyes look at a case because over time, having
that second layer review has increased delay. I am sure for
myself that it has not increased the quality of veterans' law
sufficiently to justify its current place in the system.
Senator Murray. OK.
Colonel Wilson, have you given any thought to a proposal to
remove the Federal Circuit from the veterans' benefits
determination process and what that would mean?
Colonel Wilson. No, ma'am, I have not, but will be glad to
respond later.
Senator Murray. If you could respond to the Committee, I
would appreciate it.
Response to Request Arising During the Hearing by Hon. Patty Murray to
John L. Wilson, Assistant National Legislative Director, Disabled
American Veterans
Response. DAV is not in favor of removing the U.S. Court of Appeals
for the Federal Circuit from the veteran's benefits determination
process. It is our view that this next level of appealate review is
critical in ensuring cases on appeal are afforded proper and thorough
consideration. This next level of review is vital because the U.S.
Court for Veterans Claims has the authority to hear cases by judges
sitting alone or in panels. No other U.S. appellate court permits one
judge to decide appeals. The Court's caseload does not prohibit each
appeal being decided by a panel, yet this is typically the case for
such appeals. As a result, a veteran's status before the Court is
diminished when compared to other citizens' cases heard before other
appellate courts. Status as a veteran should not reduce the quality of
judicial review to which he or she is entitled. Therefore, we are not
in favor of removing the Federal Circuit from this process. The Federal
Circuit has limited jurisdiction to hear appeals from the Veterans
Court and we do not believe removing the Federal Circuit from the
appeals process is in the best interest of veterans.
Senator Murray. Mr. Bertoni, would you have any input on
that?
Mr. Bertoni. I would say we have not looked into that or
any considerations there. But I would say there would be a
range of stakeholders that you would have to bring in.
Senator Murray. That is why you suggested commission----
Mr. Bertoni. Yes, that is right, Senator.
Senator Murray. Senator Burr?
Senator Burr. Mr. Allen, you are right. It is a major
shift, but I think we are challenged to look at it in a
different context. I was serious months ago when I suggested to
the service organizations, let's start with a blank sheet of
paper, and come in and tell us how you design it in the 21st
century. To the credit of DAV, they took on the task, and I am
appreciative of that.
You are right when you mention the word ``commission.''
What little bit of hair I had on the back of my neck did stand
up. So let me ask, what additional information do you believe a
commission would find that we do not have readily available to
us today?
Colonel Wilson. I thought of two ways to respond to that.
The first and most direct is, I do not know what additional
information the commission would have that you do not. I do not
mean to refer back to Secretary Rumsfeld, however, there are
things that we know we do not know. But more importantly,
Senator----
Senator Burr. And that was sort of the basis of why you had
the creation of the VA appellate process and the federal court.
Colonel Wilson. Yes.
Senator Burr. We did not know what we were going to run
into.
Colonel Wilson. Absolutely. And second, though, Senator, I
think that the key--because I think this has been the key over
time as various veterans' benefits have been discussed--is it
reaches a tipping point when enough of the relevant
constituencies come together on an idea. I do not know whether
something can truly be successful if it is, in fact, deemed to
be imposed.
Senator Burr. How long do you think a commission would need
to take to accomplish the work that you perceive a commission
should attempt to accomplish?
Colonel Wilson. Part of it would be how broadly the
commission should be structured. In my perfect world, I would
say that it should actually be a commission that looks at the
claims processing from cradle to grave. Because the situation
we have now, some have described as a spider web which is not
quite right, I think, because is an older spider web--the
administrative process--on which a new spider web has been
grafted. So, anything you do to one part is going to affect
another.
I think that now that we have a system that we have seen,
if a commission starts from the beginning and looks at the end,
because things that are done at claims processing at the
administrative level are going to make a difference in the
judicial review arena as well, and vice versa. So if the
process were from beginning to end, I think this could probably
be done, with commitment, in 6 months.
Senator Burr. You mentioned in a recent Law Review article,
and I quote, ``Perhaps the most significant shortcomings of the
current system of veterans' benefit determinations and their
judicial review is the delay that veterans face.'' I think many
veterans would agree with the assessment you have made.
How would you suggest we strike the right balance between
speeding up the system and protecting the rights of veterans?
Colonel Wilson. That is a very tough question. At the
hearing in February, I think, Senator Begich mentioned that
there are sort of two generic approaches one can take. What I
have been talking about is the big picture, beginning to end.
But there are also targeted things that can be done in the
system right now to help reduce delay. Some of them, Congress
has done. Congress authorized new judgeships for the Veterans
Court that are going to come into force in December 2009, in
theory, to help reduce that workload. There are things being
done at the Veterans Court to decrease delay and to increase
efficiency. For example, the provision of technology, there are
things being done with the system.
But I think that we have to be honest about the fact that
any reduction in, say, for example, the number of remands--
which on a systemic scale is bad--is going to affect, in any
given case, the fact that a veteran's claim is going to stop
somewhere on the road earlier than it would otherwise have
done. And so, I think that we have to start with the assumption
that that is the case.
I think a lot of this can be enforcing what Congress has
put in the statutes to make the VA process have the benefit of
the doubt going to the veteran, and I think that that is a good
point.
Senator Burr. Mr. Bertoni, you are familiar with DAV's
recommendations. Am I correct?
Mr. Bertoni. We have not done much analysis. I am vaguely
familiar with what they recommended, yes, in terms of the--on
the appellate----
Senator Burr. Are you aware of them enough to make a
recommendation as to whether you think if we enacted them, they
could save some of the delays that have been identified?
Mr. Bertoni. No, but I could talk generically about
reengineering processes and why that is a good thing, and then
sort of segue into that.
We always said that benefit processing organizations should
be looking to reengineer their processes, to look for
efficiencies in streamlining their processes. To the extent
that you can do that, then you take those redesigned processes
and build your automation systems around them. Then you
actually have gained two efficiencies: your process is better
and your automated system is better.
To the extent that what they are proposing can eliminate
steps and compress timeframes, we would think that would be
possibly a good solution. The only concern that I have in the
limited knowledge I have is that if you create a system where
the paperwork is pushed up the flag pole to the next level, I
think for a while you can be more efficient. But if the numbers
start to come in at substantially higher levels, if they do not
have the resources and
staff and reengineered processes up there, you might get into a
situation where you have just moved the problem to the next
phase. We have seen that in other programs like the Social
Security Administration.
Senator Burr. Let me ask you, if you could--I cannot
remember whether your comments have included an observation on
the stimulus money that went to the VA ($150 million for 2,200
positions which expires in 14 months) to basically process
10,000 claims. And I realize that is something that was pulled
out of the sky on the run, but let me ask you. Good investment?
Mr. Bertoni. Well, I have seen the plan. The number I have
seen is 150 million and 1,500 employees, in written form. I
believe it is 500 permanent and 1,000 temporary employees.
Clearly, absorbing the staff at the rate at which they have
been going is going to be a challenge.
You mentioned the appeals resource centers. Anecdotally, we
have heard some noise there, that absorbing staff and trying to
find trained staff or get staff trained enough has caused some
issues. So, I think the organization, since 2005, has been
injecting a great number of staff in, and they have had some
issues with training, deployment, and getting folks up to a
proficient level. They have acknowledged it is going to lead to
sort of a downturn in productivity for some time. However, it
also shows that they are producing more. In the last couple of
years, it looks like there is some good trending in the data.
So, I think over time, if they can integrate staff into the
processes in a timely manner and get them trained, I think you
should be able to see some better training in the numbers.
However, it is going to really depend on how they design their
service delivery plan to make sure they have people processed
and technology in the right places at the right time. It is not
a matter of simply putting staff where you have space. You
could really run into some real inequities in terms of
experience in certain areas if they do it that way.
Senator Burr. Thank you.
Thank you, Madam Chair.
Senator Murray. Thank you.
I have one additional question, then I am going to turn it
over to Senator Brown for his questions and comments and to
hand him the gavel to chair the final time of this Committee.
So, thank you for being here.
Mr. Bertoni, I just wanted to ask you, as you know the DES
pilot could be implemented worldwide. You have testified that
the DOD and VA have not established how they will define
success for that pilot.
In your opinion, what would indicate success?
Mr. Bertoni. I agree with the indicators of customer
satisfaction and timeliness. I mean, I think those are two very
important things. I do not think that VA and DOD have put
enough thought in terms of what is the performance bar for
accuracy and consistency. How much improvement in any of these
elements do you want to see that would warrant worldwide
implementation?
I do not believe they are there. The last thing you want to
do is have more decisions--quick decisions but bad decisions.
So I do believe they need to get behind the accuracy and
consistency ball and really design some criteria and targets to
shoot for.
Another concern we have is they are about to issue a report
in August, and they are going to be rolling out or standing up
at least several sites in the latter part of this pilot, which
by their own designation are high risk or high risk of failure.
They are very unique characteristics. It is unclear to us how
they will be able to cutoff analysis to begin drafting this
report and still incorporate the data that those sites will
yield to give you all a good sense of how effective this pilot
is by August.
Senator Murray. OK. Thank you very much for that input.
Senator Brown, thank you for being here, and I turn the
gavel over to you.
STATEMENT OF HON. SHERROD BROWN,
U.S. SENATOR FROM OHIO
Senator Brown [presiding]. Thank you, Senator. I appreciate
that.
Thank you for joining us. I appreciate your pubic service,
all of you, and your support for veterans.
I represent Ohio, and Ohio has, if not unique, some more
severe problems perhaps than the rest of the country. I want to
get to something specific later on that way.
But let me ask you--we all hear about this all the time. We
hear about the bottleneck, we hear about the frustration that
so many veterans have. Talk through with me where the real
bottleneck is. Is it the initial claims process? Is it the
appeals process? How do I better explain to veterans why there
are 145,000 claims that are older than 125 days? Each of you, I
would just like to hear your thoughts about it.
Mr. Allen, you want to start?
Mr. Allen. Sure, Senator. I think part of it depends on the
individual veteran who comes up to you and where their claim is
in the process. Starting at the back end: if you are a veteran
who has been dissatisfied at the administrative level--which
you have appealed now to the federal court system--you are
going to be shocked by the way it works there because now you
have a traditional adversary system in which there is time
built in for the assembly of an appellate record and the
debriefing that goes into that, where in that process itself is
going to take 120 days if you are lucky, and then the case is
right for decision. Then if you are still not happy, one part
or the other, can appeal to the Federal Circuit.
So, part of this is that the downside of judicial review is
increased process. If you are at the administrative level,
other people are going to be able to discuss this better than I
would. But certainly, the statutory provision that allows for
``one appeal to the Secretary''--which is essentially the Board
in this case--means that the board will remand matters for
initial adjudication over and over and over again to the
regional office to allow one appeal to the Secretary.
So, in that sense, I do agree with Mr. Wilson that it would
make sense in terms of delay to allow the veteran to waive that
right, essentially; to allow the veteran to affirmatively say I
know I have the right to have it remanded and considered first
before the RO, but I will let the Board do it, because I think
that is a big part of administrative delay.
Senator Brown. Mr. Bertoni?
Mr. Bertoni. I do not think I could isolate any particular
aspect of the process from front to back as a particular
bottleneck. I think throughout the process there are program
design inefficiencies that have slowed the way cases are
processed through the system.
I do believe one key aspect or problem that starts very
early on is the inability to develop the medical record and
difficulties establishing service connection. I think that some
of the initiatives that they are trying to do right now, in
terms of benefits delivery at discharge, where 70 percent of
departing servicemembers are leaving through these sites, where
you could get early information on the medical history and the
personnel record when it is most fresh, you can establish
service connection more easily.
So I do believe there are some things going on, especially
the DES pilot, where those issues can be resolved early on.
Certainly, there are program design issues throughout the
system that are causing slow downs in processing, but I think
that upfront development and being able to establish service
connection can help throughout.
Senator Brown. So, Mr. Bertoni, you think that the meetings
that Secretary Shinseki and Secretary Gates have had, the
information technology to help IT, that they are working on,
and the fact that the VA will have access to those records much
earlier in the process--really, from the day that a man or
woman signs up and joins the military--and that it will be more
seamless and all, that should help in terms of this backlog?
Mr. Bertoni. If you could create those interfaces, the
ability to quickly share medical information in an online
fashion, I think that is going a long way. But be mindful that
it is not just a matter of taking a 400-page paper manual file,
and evolving it into an electronic system. I do believe you
need to build into that system the ability to query, to search,
and to be able to pull out documents that you need specifically
to reach a decision.
So, it is a matter of having this electronic interface, and
having it be a very user-friendly system that can help those
who develop the claim also pull out the information they need.
Senator Brown. Colonel Wilson, your thoughts on my original
question, about the bottleneck.
Colonel Wilson. Yes. Thank you, Senator. It is certainly a
complex issue, as well intended to. One of the issues is simply
that when a veteran files a claim and appeals, during appeal,
should it wish to provide additional information, supplemental
statements of the case are created for each particular time
that veteran submits information for that particular appeal.
When I was in the field, I saw as many as 9, 10, and 12
supplemental statements of the case being issued for a veteran
on their appeal because they had not bothered to talk to their
representative and say what is going on here, ``They have asked
me for information and I sent it forward, and I have got
another delay and another delay.'' I have to caution them,
please do not submit any more additional evidence. Stop, you
have certainly submitted enough; it is duplicative as a matter
of fact. They do not understand the process. So, this is one of
the complications that is raised--a very complex issue.
So, if you allow the veteran to instead opt out of this
current process where the regional office has a review, opt 4,
which I think is already the case, the Board of Veterans
Appeals to have a review, you then, therefore, also eliminate
the supplemental statement of the case. By the way the VA
tracks as many as only up to five SSOCs; there could be far
more than that. As I indicated I have seen 9, 10, and 12 from
certain veterans.
When you figure that SSOC is 1 hour of work for a simple
case, and you have thousands of them, you have thousands and
tens of thousands of man-hours that you can save as a result.
It moves the appeal process further, gets the appeal decision
back to the veteran sooner.
The other issue that you face is the VA working in the
proper direction with its infrastructure issues in the IT
arena. Moving to the electronic record, as is being talked
about with the DOD and VA, is outstanding; absolutely the right
way to go. It may likely take an additional investment of
resources as was testified to before this Committee previously.
So, those are a couple of the issues that cause the
continued problems that the VA has in being responsive to the
veteran in a timely manner.
Senator Brown. Thank you.
From your comments, Colonel Wilson, about delay, and,
Professor Allen, your comments about judicial review taking to
120 days, just that alone, that process--there are some 145,000
claims, as we have discussed, over 125 days old. What is the
right number of those, considering these factors? What should
be our goal because of the slower judicial review process? What
number should we be aiming at? What is fair to veterans?
Your thoughts on that?
Mr. Allen. Well, in terms of the judicial element, once you
have sort of crossed the Rubicon and decide you want
independent judicial review in an adversary setting, in a court
system, there is only so much that can be done to reduce
``delay.''
Senator Brown. So what is that number taking those out?
Where should we be?
Mr. Allen. This is not necessarily something that veterans
want to hear, but I think, realistically at the appellate court
level, the claims are being adjudicated at about the right
speed if we want to maintain a traditional adversary system.
There are things that can be done in certain cases that the
court is doing, I understand--an aggressive mediation program--
to try to get things resolved earlier. But, in terms of the
speed to decision at the appellate court level, I think that
that is about right. In fact, I think the Veterans Court
produces decisions, on average, faster than other federal
courts of appeals, but it is still a significant chunk of time.
Senator Brown. That's little consolation to someone going
through the process, but I understand that.
Mr. Allen. That fundamentally is the tradeoff about whether
or not this type of judicial review is worth the candle. I
think it is, but that is also why in my response to Ranking
Burr----
Senator Brown. Can you estimate of the 145,000 how many of
those are actually part of judicial review?
Mr. Allen. None. None technically, at least not yet. Each
year approximately 4,500 to 5,000--depending on the year--cases
are appealed from the Board of Veterans Appeals to the Veterans
Court. Last year, I think it was just under 4,200 cases that
went to the Veterans Court.
Senator Brown. Any comments from Colonel Wilson or Mr.
Bertoni about that?
Colonel Wilson. No, Senator. I could not offer a
perspective on what the proper timeframe should be for that at
this particular time. I would be glad to respond in writing,
however.
Senator Brown. OK.
Response to Request Arising During the Hearing by Hon. Sherrod Brown to
John L. Wilson, Assistant National Legislative Director, Disabled
American Veterans
Response. In addressing speed of decisions by the Court and the
proper timeframe, the primary emphasis should be on a quality decision.
Quality decisions will ultimately drive timeliness and accuracy. The
Courts should use the time necessary to provide quality decisions.
Further, the Court could enhance the quality of its' decisions if
it would modify its current policy and decide all issues of law raised
by an appellant and provide an opinion as to how the law affects the
disability in question. When Congress passed the Veterans' Judicial
Review Act of 1988 (VJRA) and created the Court, it was granted the
authority to decide all relevant questions of law and to hold unlawful
and set aside or reverse any finding of material fact adverse to the
claimant, which is clearly erroneous. Unfortunately, due to long delays
in claims processing at the VA, it can take veterans years to get their
appeals before the Court.
The result is that the veteran must appeal to the Court a second
time and, in some cases, a third or fourth time to obtain a decision on
the merits of his or her appeal. It is DAV's opinion that legislation
should be enacted that would require the Court to decide each
assignment of error made by an appellant in an appeal to the Court and
to reverse any such errors found; and grant the Court the authority to
modify or remand any Board decision found to contain any error or
errors, that the authority to modify should include the power to order
an award of benefits in appropriate cases, and that an appellant should
be expressly permitted to waive confessions of error made by the
appellee.
The basis for this position is a matter of policy rather than
object analysis however. The Court believes leaving appellants the
added latitude of resubmitting an appeal on an undecided issue is
beneficial to the veteran. When asked for the statistical analysis to
support this position none could be provided. So, the Courts will
continue their current practice of not deciding all issues based on
policy only.
An analysis of the Annual Reports for 2000-2009 finds a remand rate
of 62.6% for 2008 and 60.5% for 2009. This calculation is based: on the
total cases affirmed or dismissed in part, reversed/vacated & remanded
in part; reversed/vacated & remanded; or remanded. In 2008, of the
4,446 cases decided, 2,787 were remanded resulting in a remand rate of
62.6%. In 2009, of the 4,379 cases decided, 2,651 were remanded
resulting in a remand rate of 60.5%.
It would seem the Courts and veterans would be better served by a
reduced remand rate if all issues of law as they relate to the appeal
in question were decided. Having the Court address all issues on appeal
would, from the perspective of the veteran, also enhance the quality of
decisions and likely improve the timeliness of decisions.
Mr. Bertoni. I was just going to say, in terms of the
initial claims, I do not know what the number is either, but I
would look at what has been accomplished. If you look at the
Benefits Delivery at Discharge program, their average is 2-3
months versus 6-7 months for non-BDD claims. So, I think any
veteran receiving a claim within 2-3 months would probably be
pretty satisfied with that.
As far as the appellate end, 639 days--21 months--I can say
is probably too long. I do not know what the numbers should be.
Senator Brown. Veterans are not just frustrated but there's
the difficulty of survival for some number of veterans that are
in this process, who have to wait and wait and wait. All that
is pretty troubling of course.
I hear veterans often ask if there is a way that VA could
provide some preliminary classification so that they could get
some assistance while this process went forward--in those cases
that, perhaps, are a little more obvious or a little simpler.
Is there a way that the VA can define preliminary
classification and move forward with that?
Mr. Bertoni. Preliminary classification with--are we saying
a temporary disability or----
Senator Brown. Yes.
Mr. Bertoni. I have heard folks make that point. The issue
we have here, I think, in doing a preliminary classification is
it could cause problems for both the administration and the
veteran.
Number 1, if you do that and 6 months down the road you
finally do complete the case, or 2 years down the road, and you
find that the veteran is not disabled or at a much lower
disability rate, that person could potentially be slapped with
a fairly high overpayment.
Given the rules that VA has in terms of waiver, after some
administrative and bureaucratic gyrations that amount would
probably be waived. But now you are left with the VA or Federal
Government having to eat that payment. So, that is one
scenario.
Senator Brown. Is there a way of doing that in cases that
you can reduce significant--and I apologize for going over,
Senator Burr. Is there a way of doing that so that those cases
which have a great deal more certainty, so that the likelihood
of error will be very, very small? It is perhaps a price that
the taxpayers and the VA pay for these overpayments, if you
will, but you do it and you define it in a way with much more
certainty so that overpayments are rare.
Mr. Bertoni. There is. It is done in the Social Security
Administration. It is called ``compassion and allowances.''
They are doing some of this in VA with some of the target
subpopulations that they are looking to sort of expedite. These
are cases most likely to be approved, so they are doing that. I
do not know the range of subpopulations with the numbers, but
that is a model.
Senator Brown. But it is done in a relatively small number
of cases now, to your knowledge.
Mr. Bertoni. I do not know the numbers, but it is not done
on the macro level.
Senator Brown. From your examination of this from GAO, can
you tell if you could expand it to a good many more veterans
without a high rate of overpayment?
Mr. Bertoni. That is part of what we are doing. This is
ongoing work. Preliminarily I do not have that answer, but we
are aware of several pilots that are ongoing where that is
exactly the concept. These cases are good candidates for
approval and they are on a fast-track basis. Whether they could
find more or revise the criteria to bring more cases in, I do
not know that right now, but it is something we are looking at.
Senator Brown. OK. Thank you.
Senator Burr?
Senator Burr. Thank you, Mr. Chairman. I was going to ask
Mr. Wilson a couple of questions, but I am going to forego
those and just make an observation.
As we have talked about the disability claims process, we
have all sort of looked at the middle and the end and tried to
point to all the things we think cause the delays. We have
extensive debates about what the appropriate amount of time is.
When do you restart the clock? I think that is what Mr. Wilson
talked about with the new evidence. It restarted the clock, and
this brought further delays. There was a point that it was not
beneficial to veterans.
Let me just suggest that I hope all of us might back up and
possibly look at the beginning of the process--when the first
interaction takes place--and ask ourselves if we put as much
effort toward the re-training and re-tooling of our VA
personnel and charge them more with slowing down the process of
moving that claim forward until they are confident that all of
the pertinent information that that claimant might need for the
claim is there, and become a little more invested in each
individual claimant, then I think, one, we would be able to
then identify what we do not need, very easily, because there
would not be this addition of new evidence. Somebody would be
there helping them construct that file at the beginning.
If, in fact, the medical information was not in it--you
requested it of the veteran--and after a period of time you
move the claim into the process without it, well, you have got
a VA employee who knows that at some point this is going to bog
down. This is just going to stop dead, and then it is going to
set off all these little triggers. The VA at some point, as Mr.
Wilson says, goes back to the veteran and says, well, we need
this. They ask, was there somebody in the theater that saw
this? As you build that case, that is where the delays come
from.
Now, I know I am probably suggesting something that is way
too simple for us to accomplish, but I think that--I refer back
to those commissions, and here is my frustration. I have seen
us put commissions together to identify changes to big things;
and sometimes we get little changes to big things, but we do
not get big results.
I think we have got to think about this process, about how
we can change it tomorrow for veterans. I am not suggesting the
only place we need to look that the beginning is, but I do not
think that we can satisfactorily solve all of our problems
without making sure at the earliest possible point we get all
the information needed to make determinations. So, when I ask
how do you find the right balance between the veterans' rights
and the speed of the process, it is having the most information
to make an educated decision early in the process so that you
know whether the individual is going to pursue it further,
meaning to the appellate court, or, in fact, whether the
veteran might look at the process up to that point and
determine they have been treated fairly and now is the time to
exit the system and let somebody else come in.
It's my personal observation, because I have been as
focused as everybody else on having too much in the middle and
too much at the end, on how many times we restart the clock,
and whose responsibility is it to make sure that that does not
happen too often. We have a habit of throwing the hot potato to
somebody else.
Maybe we can all agree that we have got to do a better job
up front, slowing the process down, making sure we have all the
information; more importantly, making sure that the first
interaction with the Veterans Administration is with somebody
whose sole objective is to get the information they know that
individual is going to need throughout the process. If we fall
short after that, well, we will deal with it. I think we can do
a much better job at the beginning because some of the things
that we all refer to, quite frankly, are achievable at the
earliest possible point in the process.
I want to thank all three of our witnesses as well as the
administration for being here today. I thank the Chair for his
indulgence for my observations, and I look forward to hopefully
progress on this in calendar year 2009. Thank you.
Senator Brown. Thank you, Senator Burr.
We have a vote call in a couple of minutes, and I just
really have one question that I would like each of you to
explore before we wrap up. I would particularly like to thank
Admiral Dunne and Mr. Koch for staying and listening to the
questions. Witnesses often do not do that--listen to the next
panel--and I thank you very much, both of you, for staying.
I know this hearing is about claims processing, and we each
have our stories about our own States. I want to ask you
briefly about a related matter. Mr. Bertoni possibly could be
the most helpful on this, but if others want to weigh in,
that's great.
Ohio consistently receives some of the lowest disability
compensation in the country year after year, and nobody quite
understands why. I mean, our delays--the slowness of the
processing may be worse in Ohio, and that is not really clear
from information we have. But we do know we have some of the
lowest disability compensation in the country year after year
after year.
I know it is partly demographics, but how much of this can
be attributed to individual claims processing? Is there a
structural issue with the Cleveland region that you can see,
Mr. Bertoni?
Mr. Bertoni. I do not know that answer. I think the one to
get behind that would be VA. I know they have started a
program, which I believe is called the Interrater Comparison
Program, where they are basically taking a case in a particular
area and having a number of raters examine it, rate the case,
and see where there are breakdowns in terms of consistency or
where there is inconsistency.
So, I think that exercise is very important. To have that
kind of analysis where you have three folks rate a like case
with like impairments and see how far or how close they are in
terms of the rating determination I think is a first step to
sort of getting behind whether there is substantial variation
that needs to be addressed.
Senator Brown. Anybody else want to----
Mr. Bertoni. They have just started to do this, I believe.
Senator Brown. So, a year from now we may know the answer
to this?
Mr. Bertoni. I think that is a question for VA, but I do
not know how long that exercise will be going on.
Senator Brown. VA has never done anything like that. We
have asked questions of them and tried to get answers on this,
and they really do not seem to know the answer. This is the
first time they have sort of approached that model to be able
to determine people.
Mr. Bertoni. I know the VA or the IG took a stab at this
several years back, and I do not believe their analysis was
conclusive either. But, again, I do know about this fairly
recent experience. They are doing this analysis and, hopefully,
it will yield some information relative to why there may be
inconsistencies.
Senator Brown. Colonel Wilson, I am sure you have heard
from DAV members in Ohio about this. Do you have any thoughts
or have you been able to give them any insight into this?
Colonel Wilson. No, sir, no specific insight on that
particular location. I would offer that the various veterans
service organizations have long contended that although the
quantity of work is important--to move cases quickly--that
quality of work must be a part of that process as well.
We believe if you change the work credit system--I do not
care where the location of the regional office is--work credit
system changes to require accountability, both up and down for
good work, take it away for work that is not as good, will
improve the process for all, and eventually as well in Ohio.
Senator Brown. OK.
Mr. Allen, any insight you might have?
Mr. Allen. I do not know enough about that, Senator.
Senator Brown. OK. Well, thank you.
Thank you all for your testimony, and thank you especially
for your service to this Nation's veterans. The Veterans'
Affairs Committee is adjourned. Thank you.
[Whereupon, at 11:25 a.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Robert Jackson, Assistant Director, National
Legislative Service, Veterans of Foreign Wars of the United States
Mr. Chairman, Ranking Member Burr and Members of the Committee:
Thank you for the opportunity to provide testimony before this
Committee on VA disability compensation. The 1.8 million men and women
of the Veterans of Foreign Wars of the U.S. appreciate the voice you
give them at these important hearings.
As we all know, over the past two years the VA has funded the
hiring of hundreds of new rating specialists in order to reduce the
growing backlog of veterans' disability compensation claims. We also
know that it takes at least two years for a rating specialist to be
trained, and at least another year getting comfortable with the VA
claims system to get to the point to where the rating specialist
becomes somewhat proficient in assessing veterans claims. We note this
because we believe it is important to understand that simply increasing
the number of VA rating specialists will not significantly reduce the
claims backlog in a fashion considered timely by this Committee,
Veterans Service Organizations, and most importantly the very veterans
this system was developed to serve. This is merely a starting point in
order to advance our discussion to a self-evident truth:
There is no quick fix to VBA . . . only the opportunity for steady
and deliberate improvement.
There has been a silent paradigm shift over the past 30 years. If
for no other reason than judicial review, the Veterans Claims
Assistance Act (VCAA) and the budgetary environment that exists today,
it may be time to acknowledge that the VA cannot be staffed at such
levels as will allow it to produce quality decisions in the same period
those earlier generations of VA workers achieved.
The converse of this may be to acknowledge that the better
production and timeliness levels achieved in the 1950s and `60s may
very well have been accomplished because there was less attention paid
to procedural rights and that the VA may have exhibited a rather
cavalier attitude when it came to interpreting the law and its own
regulations.
Whether you agree with either view of history, you have to admit
the world in which the VA operates has changed and it may no longer be
realistic to expect accurate benefit decisions in a short period of
time. There are still things that can be done to improve production,
reduce backlogs (although perhaps not at the rate we all would like to
see) and ensure claims are completed with quality.
PROVISIONAL CLAIMS PROCESSING SYSTEM
Within two years of the conclusion of World War II, more than 16
million service men and women were released from active duty. Millions
filed claims with VA for compensation. Why wasn't the VA overwhelmed?
There are numerous answers to the question, including:
Veterans claimed fewer disabilities than at present.
There were no due process requirements in the law and VA
procedures required little more than acknowledgement of a claim and
notice of the final decision.
VA was not obligated to help veterans obtain private
records
VA could and did make decisions after receipt of service
medical records but before all records were received. When additional
records were received, VA reviewed those records in context with other
evidence of record and made a new decision.
VA frequently evaluated disabilities based on service
discharge examinations.
All of these facts allowed the VA to make claim decisions quickly.
Reexaminations were frequent and allowed VA to increase or reduce
evaluations as disabilities worsened or improved.
Today, claims development takes longer. Quite simply, Congress
recognized that past procedures and practices by VA were not always
veteran friendly, did not adequately tell veterans what was needed and
often led to decisions based on less than all the available evidence.
Decisions are longer because Congress decided that veterans should be
told what evidence was considered and why benefits were denied or
granted. Appeals take longer to resolve because of increased
evidentiary and notice requirements, the introduction of an additional
review level with Decision Review Officers and the need to satisfy all
judicial mandates.
The fact is there is nothing inherently wrong with any of these
changes. Those decisions are needed to fix recognized problems and
abuses.
However, the question still remains; how do you devise a system
that allows VA to make decisions rapidly without increasing mistakes,
is not costly either to the veteran or the American people, and
continues to provide veterans with the protections that have been built
into the law over the past 60 years?
Jerry Manar, VFW's Deputy Director for National Veterans Service,
along with four other retired VA alumni, has developed a process that
incorporates the best practices of a post WWII claims system to make
expedited provisional decisions based on existing records. This
proposal, which calls for the creation of a test program entitled the
Provisional Claims Processing Program, would grant benefits on limited
information quickly but with quality.
The Program would be limited to servicemembers leaving the Armed
Forces or recently discharged veterans. An initial evaluation would be
conducted based on existing evidence, and the veteran would have the
opportunity to accept the provisional rating. If the veteran declines
the provisional rating, the claim would be processed through the normal
claims process.
If the veteran accepts the provisional rating, full development, a
VA examination and a new decision would be required four years after
the initial provisional rating. Provisional decisions made under this
program would have no precedent value and service connection for all
disabilities, including any new condition the veteran chooses to place
into contention, would be made during the review at the four-year
point.
This program would restore the rapid delivery of benefits based on
current rating standards, while still maintaining veterans' rights
under a system of protections carefully crafted by Congress over the
past 60 years. It should dramatically increase decisions on original
claims while allowing the bulk of VA's field staff to concentrate on
resolving the existing backlog.
More importantly, this program would provide a win for new
veterans. In exchange for agreeing to wait for a final decision, they
receive a provisional decision and benefits in a matter of weeks
instead of more than six months. If properly structured the VA could
fulfill the promise it made with the BDD program that a decision could
be made prior to discharge.
Further, veterans have the right to choose which program they
participate in AFTER they know what the provisional decision awards. If
they disagree with the provisional decision, they need not accept it.
And, since they know that the current program may take six months or
more to produce a decision, their conscious choice to accept the wait
should reduce the number of complaints and consequent pressure on
Congress.
This proposal offers a viable short-term solution to the growing
backlog of claims and we would hope the Congress would consider this
proposal or some similar program as a means of assisting the VBA in
improving the claims processing system.
GETTING IT RIGHT THE FIRST TIME
We also believe some of the greatest benefits can be found by
fixing the front end of the claims operation. Most court decisions
today focus on procedural problems stemming from notice to claimants
and development, or failures to properly develop evidence. The VCAA was
created because VA would sometimes take shortcuts in the claims
development period, failing to give claimants adequate notice of what
they needed to produce to prove their claims. However, as we have seen
since its passage, it is quite possible to become bogged down in the
notice requirements while attempting to dot every ``i'' and cross every
``t''.
We support the VCAA because we believe it helps level the playing
field for veterans. The VA has the knowledge of what is required in
order to grant or increase benefits to veterans. They are required to
pass that knowledge on so that claimants know, too, and can focus their
energies in obtaining the necessary evidence to perfect their claim.
This is not rocket science. If a veteran claims service connection
for the residuals of a knee injury, the VA can tell her that she needs
to show that she has a disability of the knee now, that she injured the
knee in service or something that happened in service caused a knee
problem and to provide VA with medical evidence that shows the current
problem to be related to the event in service. These are the same three
things that have always been required to prove service connection.
The requirements for obtaining an increase in benefits are equally
finite: a claimant must show that their service-connected disability
has worsened sufficiently to obtain a higher evaluation. In order to
obtain an increase for that knee problem, the veteran must show the
existence of arthritis in the joint which limits motion or causes pain,
or demonstrates instability in the joint.
Again, this is not rocket science. Software could be developed that
allows a VSR in a Pre-Determination team to simply answer a question on
a computer screen concerning whether the claim is for service-
connection or an increase and what the claimed condition is. Now, as
you suspect, the computer can generate paragraph after paragraph
explaining what is required and if the veteran is claiming 12
conditions then the letter can become quite long. Yet, if the object is
to ensure that claimants have the information necessary to perfect
their claims then it can be done with properly programmed computers.
Further, software programs could be made available to claimants in a
simple, easily accessed, public web site. Any curious veteran could
enter the web site, answer a series of simple questions and receive
detailed information on what is needed to obtain the benefit.
UTILIZING TECHNOLOGY AS A TOOL TO CREATE EFFICIENCIES
We have testified before this Committee in the past, and continue
to believe, that if VA takes advantage of the rapid advances in
technology they will be able to create efficiencies that currently do
not exist. For instance, the VA currently has thousands of all
electronic claims files. These cases are largely Benefits Delivery at
Discharge (BDD) cases and the electronic claims files offer VA a unique
opportunity to create a separate office to handle all electronic
claims, allowing the VA to experiment and create an environment
unencumbered by paper files. Imagine the possibility of having two or
three Rating VSR's located in separate sections of a building reviewing
one claims file and making decisions on different elements of the claim
simultaneously. The efficiencies that such a system creates could be
significant.
We understand that VA has established a claims processing
laboratory in Providence, RI to explore and develop these efficiencies.
We welcome this effort and look forward to viewing the results of this
work in the years to come.
What about the millions of existing paper claim files? VA
rightfully believes that copying these files would be cost prohibitive.
We agree. However, VA receives thousands of requests each year for
copies of claims files. Currently, each file is photocopied and sent to
the claimant. What if each office was equipped with a scanner so that
instead of photocopying the file, it is scanned. The claimant would
still receive a paper copy of the file and at the same time, the VA
would have yet another electronic record.
Mr. Chairman, these suggestions and ideas, in and of themselves,
will not solve the backlog, timeliness and quality issues plaguing the
VA today. However, if adoption of these and similar proposals each
result in steady and deliberate improvement, we believe the cumulative
effect will be sufficient to achieve reductions in workload and
improvements in quality and service to veterans, their families and
survivors.
Thank you for allowing the VFW to provide written testimony on this
issue.
______
Additional Submission of Prof. Michael P. Allen,
Stetson University College of Law, Gulfport, FL