Joint Hearing of the Committee on Homeland Security and Governmental Affairs of the U.S. Senate and the Committee on Veterans’ Affairs of the U.S. House of Representatives at 1:00 p.m. CDT.
Submission For The Record of American Federation of Government Employees (AFGE), Local 17
Dear Chairman and Members of the Subcommittee:
Thank you for the opportunity to present our views on the appeals process for veterans’ disability benefits claims. This statement is on behalf of AFGE Local 17, the exclusive representative of VA employees who work at the Board of Veterans’ Appeals (Board).
AFGE Local 17’s Statement for the Record addresses the following areas for improvement:
• Expand the office space available to the Board’s dramatically growing legal staff required to reduce the backlog;
• Hire more administrative staff to assist in the greater amount of resulting work being done, and upgrade pay; institute career pathways into management for administrative personnel;
• Eliminate the recently introduced workgroups—referred to as “pods,” in which attorneys write for a group of two to three Veterans Law Judges (VLJs)—and return to single-judge mini-teams in which five to seven attorneys write for one VLJ;
• Consult frontline Board employees concerning the transformation of the Board’s adjudication into a paperless system;
• Make GS-15 the journeyman grade for attorneys in order to attract and retain the best talent to this highly complex and intellectually challenging practice area of law.
I. NEED FOR MORE OFFICE SPACE IN RESPONSE TO THE EXPANSION OF THE BOARD’S LEGAL STAFF
The Board currently is hiring a large number of attorneys—an influx of 100 new attorneys in fact—as part of the strategic plan for executing the $8 million Congressionally funded mandate for reducing the backlog. The Board needs the additional attorneys to reduce the backlog and adjudicate the increasing number of appeals. AFGE Local 17 urges Congress to continue providing funds for the Board to maintain required staffing levels.
However, the Board presently lacks the necessary office space to accommodate hundreds of its employees already on board—this is even before the new hires are factored in. As a result of a VA office space and rent reduction initiative last fall, the Board recently lost half of an entire floor at its offices where cases are reviewed and decisions drafted—and attorneys and judges primarily working appeals are located on a total of only two floors. In other words, shortly before the current hiring surge, the office space available for attorneys and judges to do their work actually shrunk by 25 percent! With the new attorney hires, this has resulted, for many teleworkers, in three attorneys now sharing a single office and being limited by Board management to only one guaranteed “in-office” day per week. This is a constructive denial of access to equipment and files, as well as to colleagues with whom employees sometimes must professionally consult in person about ongoing work. It is making the already difficult task of addressing the Board’s heavy caseload even more challenging. AFGE Local 17 urges Congress to fund more office space for the Board of Veterans’ Appeals.
II. EXPAND THE BOARD’S ADMINISTRATIVE STAFF AND UPGRADE PAY; INSTITUTE CAREER PATHWAYS INTO MANAGEMENT FOR ADMINISTRATIVE PERSONNEL
The Board has long confronted a significant bottleneck in the administrative processing of appeals caused by a shortage of staff to process claims. This problem, unless addressed, will only grow with the greater amount of work the Board must now accomplish as a result of hiring so many more attorneys. An initial inadequate ratio of support staff to attorneys has worsened over the years as the Board has increased the number of attorneys without a comparable increase in support staff. Administrative staff members are as critical to sending completed decisions to veterans and their families as the attorneys who write decisions and the VLJs who review and sign them. We suggest an approximate ratio of one administrative support staff member for every two attorneys.
Therefore, AFGE Local 17 recommends joint labor-management efforts to identify all the specific “bottlenecks” currently contributing to the Board’s growing caseload. This will assist in the determination of the optimal administrative staffing levels and structure and therefore aid productivity.
The pay levels of administrative support personnel should be upgraded to attract and retain the best talent. Career pathways to management ought to be instituted to facilitate the upward mobility of experienced and skilled Board employees in administrative support.
III. ELIMINATE THE RECENTLY INTRODUCED “PODS” WHERE ONE ATTORNEY WRITES FOR TWO OR EVEN THREE VLJs
Late last year the Board reorganized attorney-VLJ mini-teams. The Board instituted a new system under which one attorney will alternate between each of two or three VLJs in supplying tentative draft decisions and remands for their review and signature. Instead of one VLJ with his or her writing style and legal perspective to accommodate, attorneys must now juggle writing for two or even three VLJs, continuously switching between one and the other(s). The result, by all accounts, has been a marked increase in the amount of time it takes to do the same amount of work, and fewer decisions dispatched. The ultimate outcome is more veterans waiting even longer.
This change instituted by the Board is causing a real slowdown, attorneys and VLJs are reporting to the Union—whether or not that slowdown is reflected in VA’s reports to Congress of the time it takes to do cases. The new scheme was introduced by top Board management against the vocal objections of many attorneys, joined by other stakeholders, including even a few supervising Chief VLJs (who were subsequently demoted to non-supervisory VLJs). It ought to be scrapped, in favor of the previous system of single VLJ mini-teams. That system actually fostered the efficiencies that can grow when a mini-team develops consistency and close cooperation between attorneys and a VLJ, which is impossible under the new framework. Many things at the Board need changing. The single VLJ mini-team was not one of them.
IV. USE OF BOARD EMPLOYEES TO TRANSFORM THE BOARD’S ADJUDICATION INTO A PAPERLESS SYSTEM
AFGE Local 17 strongly supports the Department’s goal of converting the Board to an effective, fully paperless system, moving with all due dispatch to have claims files be paperless. Unfortunately, given the way this has been executed so far, the knowledge that exists among Board employees has remained largely untapped in efforts to transform the Board’s adjudication process into a paperless system. More specifically, and tragically, the new computerized systems the attorneys are using were not designed to allow quick, easy access to claims file information by employees conducting search queries. As unbelievable as it may seem, the paperless claims systems that have been rolled out actually were so poorly conceived they are significantly adding to the amount of time it takes to work an average claim! They are also burdening an already fragile computer system.
The system that has resulted is not user-friendly for VA employees, and is therefore not user-friendly for the veterans we serve. We reiterate the common-sense point the Union has made time and again that the experience and insights of Board employees who work with claims files each day must be incorporated into any process of VA going paperless. Board employees and their representatives should work jointly with management during the transition process to ensure that any new system is implemented effectively and modified appropriately, that the needs of veterans remain paramount, and that employees receive effective training and other support to adjudicate claims accurately and efficiently without interruption during and after this transition period.
V. THE JOURNEYMAN GRADE FOR ATTORNEYS AT THE BOARD SHOULD BE INCREASED TO GS-15 IN ORDER TO ATTRACT AND RETAIN THE BEST TALENT TO THIS HIGHLY COMPLEX AND INTELLECTUALLY CHALLENGING PRACTICE AREA OF LAW. THIS IS COMMENSURATE WITH OTHER ATTORNEY-ADVISORS WITHIN THE FEDERAL GOVERNMENT
The mission of the Board is to conduct hearings and render timely and final decisions in appeals of claims for veterans’ benefits. Decisions are drafted by attorneys and signed by a reviewing VLJ. Those decisions are expected to be signable as is when submitted by an attorney to a VLJ. The journeyman pay level for attorneys (called Attorney-Advisors) at the Board starts at GS-9/11 and stops at GS-14. However, the journeyman pay level should be increased to GS-15. This increase is necessary due to the increasingly complex nature of the appeals, and recognizes that the proper adjudication of veterans’ claims for disability benefits is one of VA’s top priorities. In addition, a journeyman GS-15 is commensurate with attorney-advisors at other government agencies performing similar duties.
Attorneys at the Board are required to be subject matter experts on a variety of complex medical issues, including orthopedic disabilities, psychiatric disorders, cancer, gunshot wound injuries, traumatic brain injuries, diseases due to Agent Orange exposure, and undiagnosed illnesses due to Persian Gulf syndrome. In addition, attorneys must be experts on military personnel records, including active duty, active duty for training, and inactive duty training. Expertise concerning medical issues and service records, however, is not enough. Additional expertise is needed because attorneys are required to apply statutes, VA regulations, and constantly evolving case law in drafting appellate decisions.
Evolving case law offers major challenges for attorneys at the Board. The complexity of appellate decisions has increased every year since the U.S. Court of Appeals for Veterans Claims (Court) was established. The effects of judicial review have been and will continue to be widespread and profound. One such effect is the legal complexity of Board decisions. Judicial review has expanded the caseload of attorneys, both because of the need to comply with the legal and factual analyses mandated, and because judicial review has resulted in lengthier and more complex Board decisions. As the interpretation of the law is changing on an almost daily basis with each new precedential decision of the Court, attorneys must carefully and continually monitor the state of the law. The Court's decisions, rules, and procedures have resulted in significant changes in the duties and functions of all attorneys at the Board. In short, drafting Board decisions is much more complicated and requires a higher degree of legal analysis and writing skills than in prior years. As a result, the journeyman pay level for Board attorney-advisors should be increased to GS-15 to reflect these changes.
With the conclusion of two wars in Iraq and Afghanistan, VA has a responsibility to fulfill its obligation to the thousands of new veterans seeking VA benefits to which they are entitled. This responsibility can only be met by attracting and keeping the best attorney-advisors. Making the attorney-advisor position a journeyman GS-15 is essential to achieve this objective. The Board has lost some of our best attorneys over the years to the Board of Immigration Appeals (BIA), United States Department of Justice, where attorney-advisors are promoted to GS-15 after only one year. Indeed, BIA prefers to hire attorney-advisors from the Board because the work is so similar. The work of adjudicating veterans’ claims for disability benefits should receive the compensation its great complexity and significance merit.