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GOOD MORNING. -- THANK YOU -- MR. CHAIRMAN FOR THE INVITATION TO APPEAR BEFORE YOU TODAY.

BASED ON OUR QUALITY REVIEWS FOR: THE AMERICAN LEGION; QUALITY REVIEWS FOR VARIOUS STATE SERVICE ORGANIZATIONS; REVIEW OF APPEALS TAKEN TO THE BOARD OF VETERANS’ APPEALS AND TO THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS; AND ON OUR MANY VETERANS SERVICE OFFICER TRAININGS . . .

WE HAVE DISCOVERED THAT FULL AND FAIR ADJUDICATION OF CLAIMS FOR VA BENEFITS IS STILL NOT A REALITY.

ESSENTIALLY – A CLAIMANT SEEKING SERVICE CONNECTION, SEEKING A CLAIM FOR INCREASE IN A SERVICE CONNECTED CONDITION, OR SEEKING SERVICE-CONNECTED DEATH BENEFITS --- HAS A GREATER THAN 50 PERCENT CHANCE OF HAVING HIS OR HER CLAIM IMPROPERLY ADJUDICATED BY A VA REGIONAL OFFICE.

WE REGRETFULLY CONCLUDED THAT THE VA INITIATIVES DESIGNED TO IMPROVE THE QUALITY OF VA CLAIMS ADJUDICATIONS HAVE NOT ACHIEVED THEIR DESIRED RESULT.

THERE ARE THREE MAJOR REASONS WHY THE QUALITY OF VA ADJUDICATIONS IS SO DEFICIENT

FIRST, BECAUSE OF THE PRESSURE ON VA ADJDUCIATORS TO EARN RAPID WORK CREDIT, FAR TOO MANY REGIONAL OFFICES PREMATURELY DENY CLAIMS RATHER THAN TAKE THE TIME TO FULLY DEVELOP ALL RELEVANT EVIDENCE.

SECOND, SOME VA ADJUDICATORS HAVE AN ADVESARIAL ATTITUDE TOWARDS CERTAIN TYPES OF CLAIMS.

AND THIRD, -- VA NOTICES ARE OFTEN INADEQUATE AND MISLEADING.

THE BIGGEST PROBLEM VETERANS FACE IS THAT THERE ARE FAR TO MANY PREMATURE VA ADJUDICATIONS RESULTING IN ADVERSE DECISIONS.

PLEASE NOTE THAT MANY VA MANAGERS WERE PROMOTED TO THEIR CURRENT POSITION DURING AN ERA WHEN TIMELINESS AND PRODUCTION WERE EMPHASIZED OVER QUALITY.

NVLSP HAS OBSERVED THAT VA REGIONALOFFICES ARE EAGER, OFTEN MUCH TOO EAGER, TO AJDICIATE CLAIMS AND THEREBY OBTAIN CREDIT FOR A COMPLETED WORK ACTION.

AS A RESULT MAN VA REGIONAL OFFICES PREMATURLY DENY CLAIMS BEFORE ALL NECESSARY EVIDENCE HAS BEEN OBTAINED.

EXAMPLES:

1. MANY DENIALS ARE BASED ON INADEQUATE VA EXAMINATIONS; AND
2. SOME CLAIMS ADJUDICATED AND DENIED – EVEN -- BEFORE THE SERVICE MEDICAL RECORDS ARE RECEIVED

YOU MIGHT WONDER WHY THERE ARE SO MANY PREMATURE DENIALS. NVLSP BELIEVES THAT THERE IS AN:

OVER-EMPHASIS ON TIMELINESS BY VA REGIONAL OFFICE MANAGERS.

THE VA WORK MEASUREMENT SYSTEM STILL OVEREMPHASIES EMPHASES TIMELINESS AND PRODUCTION. WE HAVE LEARNED THAT MOST REGIONAL OFFICES SELF-MESAURE THEIR OWN QUALITY, WITHOUT ANY INDEPENDENT VALIDATION. WHILE THERE IS A QUALITY REQUIREMENT IN THE PERFORMANCE STANDARDS FOR MOST RO MANAGERS, THE MANAGERS QUALITY IS SELF-REPORTED WITHOUT AN INDEPENDENT VALIDATION.

PLEASE NOTE --- REGIONAL OFFICE TIMLINESS AND PRODUCTION CAN BE OBJECTIVELY MEASURED, HOWEVER REGIONAL OFFICE QUALITY STATISTICS CAN BE MANIPULATED.

ALTHOUGH MOST REGIONAL OFFICE PERFORMANCE STANDARDS CONSIDER PRODUCTION, TIMELINESS, AND QUALITY, BECAUSE THE QUALITY MEASUREMENT CAN BE MANIPULATED, NO SIGNIFICANT CHANGE IN REGIUONAL OFFICE QUALITY WILL OCCUR UNTIL--- THE INDIVIDUAL PERFORMANCE STANDRADS FOR REGIONAL OFFICE MANAGERS INCLUDE A REQUIRMENT THAT THEIR SELF REPORTED QUALITY STATISTICS ARE INDEPENDENTLY VALIDATED.

RIGHT NOW - AS FAR AS THE SELF REPORTED QUALITY STATISTICS GO -- ITS LIKE THE RO IS PLAYING POKER WHERE IT CAN ANNOUNCE ITS HAND WITHOUT SHOWING THE ROs CARDS.

SOME VA MANAGERS INFORM US THAT THEY FEEL PRESSURED TO CHEAT (PRMATURELY ADJDUCIATE CLAIMS) BECAUSE THEY ARE COMPARED TO OTHER ROs THAT THEY BELIEVE ARE PREMATURELY ADJDUCIATING CLAIMS. RECENTLY, AT AN AMERICAN LEGION QUALITY REVIEW EXIT BRIEFING, A RO MANAGER STATED:

You know I was very proud of our improved productivity and timeliness statistics. Now I see that by de-emphasizing quality and emphasizing productivity and timeliness, we have hurt many veterans. This practice must come to a screeching halt.

1. BECAUSE THE TRUE QUALITY OF THE WORK PERFORMED IN THE ROs IS OFTEN MANIPULATED – IN SOME ROs THERE IS LACK OF ACCOUNTABILITY FOR POOR PEFORMANCE.
   
2. ALSO, WE HAVE LEARNED THAT SOME VA MANAGERS BELIEVE THAT YOU, THE CONGRESS, WANT MORE THAN ANYTHING, FOR CLAIMS TO BE ADJUDICATED QUICKLY, IRREGARDLESS OF QUALITY.

IT IS VERY UPSETTING TO NVLSP THAT --- IN SPITE OF THE VA’S DESIRE TO CLAIM RAPID WORK CREDIT, THERE IS SUCH AN ANTIPATHY TOWARDS CERTAIN TYPES OF CLAIMS – THAT SOME ADJUDICATORS EXHIBIT AN ADVESARIAL ATTITUDE TOWARDS CERTAIN TYPES OF CLAIMS. -- FOR EXAMPLE:

1. SOME REGIONAL OFFICES - DEVELOP TO DENY

Despite the general tendency to deny prematurely, some ROs "develop to deny." That is, these ROs consistently seek to develop negative evidence in cases where all the evidence of record before the RO, without further development, would reasonably support the grant of benefits.

2. THERE ARE BIASES AGAINST CERTAIN TYPES OF CLAIMS

For example, veterans seeking service connection for mental conditions, entitlement to individual unemployability benefits, back benefits, and for veterans seeking entitlement to compensation based upon secondary service connection, in some instances, have to jump over a higher bar than other veterans. [GIVE BOISE EXAMPLE.)

3. SOME ROs ARE UNAWARE OF – OR REFUSE TO CONSIDER BENEFICIAL STATUTES, OR CASE LAW

For example,

• 38 U.S.C. § 1154b – statement of a combat veteran;
• Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (holding that where a veteran had alleged that his service-connected disability had worsened, that the claim for an increased rating was well grounded); and
• Cohen (Douglas) v. Brown, 10 Vet.App. 128, 136-37 (1997) (claims for PTSD).

FOR EXAMPLE:

• VA notifications often fail to provide an adequate explanation of the reasons and bases for the adverse VA determination.
  
• It is a matter of VA policy not to inform veterans what diagnostic code has been assigned to a service-connected disability for rating purposes
  

• Inadequate development letters (development letters are sent by the VA to the veteran and his or her representative, asking for further information or evidence) that do not comply with VA's guidance that letters should clearly tell the claimant what evidence is needed and what exactly has to be done to establish entitlement to the benefit sought (see M21-1, Part III, para. 1.04a.); and
  
• Telephone communication with the veteran that is not monitored or sanctioned by the veteran’s representative (the VA does not even inform the representative that it is about to contact the representative’s client). [TALK ABOUT SEATTLE CASE!)

SOME EXAMPLES OF WIDESPREAD ERRORS

• Assignment of erroneously low disability ratings for service-connected mental conditions;
• Erroneous denial of claims for service connection for mental conditions;
• Failure to consider 38 U.S.C. § 1154(b);
• Erroneous denial of claims of individual unemployability;
• Inadequate requests for medical opinions (for example, the standard of proof in the VA claims process is rarely explained to VA doctors, and in many instances conclusions regarding critical facts are not communicated to doctors who are asked to provide medical opinions); and

• Non-responsive VA examination reports

• In general, there is a lack of coordinated local (RO) quality control and a subsequent failure to act on recognized patterns of errors.

Based on the foregoing observations, NVLSP makes the following suggestions:

• VA's work measurement system should be altered so that quality as well as timeliness are twin concepts that together drive the system.
• To provide VA quality control with "teeth" and prevent end-product and work measurement abuses, an aggressive independent quality control should be performed. AT THE VERY LEAST, RO QUALITY REVIEWS SHOULD BE VAIDATED BY AN INDEPDENT QUALITY REVIEW!

• VBA should conduct regular meetings with its stakeholders to inform them of any actions VBA has taken to correct systemic adjudication problems. The stakeholders should be informed about the patterns of errors identified nationally, the ROs where there are significant problems, VBA's plans to correct these problems, changes in management, progress reports on previous initiatives, and an invitation for the stakeholders to participate and coordinate in the correction of problems.
• VA should institute a system of awards and disincentives for managers and adjudicators. VA managers and adjudicators who perform accurate and timely work should be rewarded. Managers who do not perform adequately should be appropriately chastised.
• VA employees who do a good job should be paid a reasonable salary, receive bonuses and be promoted.
• VA management should more clearly communicate with its employees what it wants from them. If management focuses on quality as well as efficient work, veterans will be better off.

NVLSP acknowledges that the adjudication of claims for VA benefits is very complicated. However, we believe the stakeholders want to help correct adjudication problems. We would be happy to meet regularly with the VA to talk about the problems we have identified and suggested solutions.

We would like to commend VBA managers for initiatives in reducing outright end-product and work measurement dishonesty and efforts to emphasize quality. While these efforts are commendable, it is time to see results. Our experience has taught us that VA managers are reasonable people who want to do the right thing.

We appreciate the opportunity to provide the subcommittee with this testimony. THANK YOU!

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