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Submission For The Record of Bergmann & Moore, LLC

We thank Chairman Jeff Miller and Ranking Member Mike Michaud for the opportunity to present a statement for the record regarding plans by the Department of Veterans Affairs (VA) to focus on adjudicating Veterans’ disability compensation claims aged 730 days or more and now pending at the Veterans Benefits Administration (VBA).   

Bergmann & Moore, LLC, is a Bethesda, Maryland law firm representing the appeals of  Veterans before VA and the U.S. Court of Appeals for Veterans Claims (CAVC).  The firm’s partners and several associates previously worked for VA.  We have a strong interest in ensuring VA processes disability claims in a timely and accurate manner for our Veterans as well as their surviving family members.

A brief review of recent events prior to this hearing is vital in order to understand why this issue is important to our nation’s Veterans and families.

On March 11, 2013, reporter Aaron Glantz at the Center for Investigative Reporting (CIR) published a news article revealing a tremendous increase in the number of claims pending at VBA for one year or longer.  

CIR reported the number of claims in that category rose sharply, from less than 11,000 at the end of Fiscal Year 2009 to nearly 245,000 at the end of December 2012 (“VA’s ability to quickly provide benefits plummets under Obama,” Center for Investigative Reporting, March 11, 2013).

We thank Congress for holding this hearing focusing on the implications of Fast Letter 20-13-05, “Guidance Regarding Special Initiative to Process Rating Claims Pending Over Two Years,” issued by VBA on April 19, 2013.

In VBA’s Fast Letter, VBA staff are instructed to identify and rate disability compensation claims pending two years or longer.  Under Secretary for Benefits Allison A. Hickey, VBA’s top official, ordered that VBA Regional Offices “… will devote all [Rating Veterans Service Representatives] and as many [Veterans Service Representatives] as are needed to ensure that all two-year old claims are processed within 60 days from the date of this letter.”

The same day, Chairman Miller issued a statement regarding VBA’s new policy.

While this new approach sounds promising, we will be monitoring it closely to make sure it’s good policy rather than just good PR. Driving our skepticism is the fact that Sec. Shinseki and VA benefits officials have testified before our committee several times in just the last few weeks, yet the first official notice of this initiative didn’t come until today – minutes before VA issued its press release.

A few days later, the Committee announced today’s hearing, which is titled, “Expediting Claims or Exploiting Statistics?: An Examination of VA’s Special Initiative to Process Rating Claims Pending Over Two Years.”  

Four Significant Concerns

In addition to agreeing with Chairman Miller’s statement and the urgent need for this oversight hearing, Bergmann & Moore raises four significant concerns about VBA’s new policy.  

1.    VBA’s Fast Letter Conspicuously Ignores Veterans’ Appealed Claims Remanded Back to VBA.

We are troubled that VBA’s Fast Letter is silent on the issue of appealed claims remanded back to VBA Regional Offices and still awaiting final adjudication.  These are claims that Veterans or surviving beneficiaries filed many years ago – in some cases more than a decade – that have been returned from either the Board of Veterans’ Appeals (Board) or the Court of Appeals for Veterans Claims (Court).  The appealed claims were remanded following an acknowledgment or directive for either additional development – because of incomplete development in the past – or other specific actions for VBA to complete prior to final adjudication.  

The most tragic statistic this hearing should focus on is a fact reported by CIR: as many as 53 Veterans die each day waiting on a VBA claim decision.  We have experienced this tragedy many times with our clients over the years. We can vouch for the fact that Veterans with strong cases, who would very likely have won substantial benefits if VA had adjudicated their claims, died waiting.

The exact number of claims languishing at VBA after a remand from the Board or Court remains unknown, as VBA does not appear to specifically account for them.  The length of time VBA takes to adjudicate these claims is also unknown.  From our experience with assisting thousands of Veterans, we know appealed claims often take years for VBA Regional Offices to adjudicate.

Moreover, VBA employees who work at various VBA regional offices have told us multiple times in recent years that substantial delays in appealed cases are being caused by VBA pulling resources away from appeals in order to make its numbers regarding initial claims look good for Congress.  We have no way to independently verify these statements, but they are so widespread as to be ubiquitous, and they seem to be corroborated by VBA’s inattention to appeals in Fast Letter 20-13-05.

VBA’s silence on appealed claims is disappointing and distressing to Veterans because the law already mandates that VBA provide “expedited” treatment for appealed claims remanded by the Board and Court (38 USC 7112).   Under the new Fast Letter, VBA acts as if appealed claims don’t exist and that VBA may continue ignoring existing law.

2.    VBA Did Not Provide for Notice and Comment.

We are concerned that VBA’s Fast Letter established a new process that should be promulgated through the regulatory process, i.e., through notice and comment in the Federal Register.  Specifically, the provisional decision process removes appellate rights from the decision and places the claim in a one-year limbo period.  For example, if VA provisionally grants a 0 (zero) percent rating this decision will stand for one year prior to it becoming final upon which the Veteran can then appeal. Thus, VBA appears to have created a new set of procedures without informing and then allowing input from vital stakeholders and the public, as required by law.

3.    The Fast Letter Exalts Speed Over Quality and Will Likely Result in Additional Delay for Veterans.

Third, VBA’s Fast Letter emphasizes speed by mandating completion of older claims within 60 days.  However, the Fast Letter mentions “quality” only once.  We are very concerned about VBA’s new policy because VBA staff are already under tremendous pressure to quickly decide claims, and we expect VBA to make more mistakes with VBA’s arbitrary deadline to adjudicate all identified claims within 60 days.

Evidence of additional pressure is VBA’s nationwide use of mandatory overtime announced on May 15, 2013.  VBA has used overtime in the past, yet VBA claim inventory was only temporarily reduced.  We are concerned about VBA’s existing poor quality claim decisions, and we believe VBA’s additional unrealistic time constraints will exacerbate VBA’s unconscionable number of mistakes as well as potentially place more strain on already overworked VBA staff

VBA’s frequent errors include a failure to properly develop evidence, improper denials for service connection, low ratings, and a failure to pay retroactive benefits.  In this specific circumstance, we are concerned VBA will issue provisional ratings that are artificially low in an attempt to clear the decks of cases pending two years or longer.

Per the Fast Letter, these decisions will then sit for one year during which an appeal process is not contemplated, pending VA’s final assessment (pending “additional guidance in the future regarding procedures for the review of [these] cases after the one-year period has ended” (page 3, emphasis added).

Only after the one year period expires will the Veteran be notified that the claim has become final and be provided appellate rights.  Veterans will then be forced into a new (and presumably overcrowded) waiting line in order to pursue their claims further with a timely appeal.

It must be noted that the Fast Letter provides a process to obtain a “final decision with appeal rights before the one-year provisional period ends.”  In order to avail oneself to this process, however, the Veteran is required to send VA a signed statement containing the following quoted language: “All necessary evidence was considered by VA.  I request that this provisional decision be made final” (page 4).  

We are strongly dismayed that a Veteran is required to make this acknowledgement in order to bypass the one-year waiting period.
 
VBA’s own error statistics (which we view as extremely low given our experience reviewing VA decisions over the years) validate our concerns.  According to VBA’s “ASPIRE” web site, as of March 2013, VBA’s error rate was an unacceptable 13.3 percent.  VBA’s national goal is two percent.  Therefore, VBA’s reporting of VBA’s error rate is more than six times VBA’s national goal.

In June 2012, VA’s Office of the Inspector General (OIG) testified before this Committee that VBA made errors in 30 percent of high-risk claims, or 15 times higher than VBA’s goal.  We find OIG’s error rate far more credible because it is independent and nationwide over a period of four years.

We urge Congress to ensure that an objective review of VBA’s performance is set up.  We recommend the Government Accountability Office or VA’s OIG audit a random sample of claims completed under VBA’s new Fast Letter to monitor and report on this new process, including accuracy, timeliness, training, staffing, and the impact on other pending claims, including those on appeal.

4.    Mixed Messages from VBA and VA’s Office of Public Affairs

When the Department unveiled the new policy, VA sent mixed messages to Veterans, service organizations, advocates, and the public on this important issue.  The confusion began when VBA and VA’s Office of Public Affairs described two different target groups for expedited claim processing.

The title of VBA’s April 19, 2013, Fast Letter is, “Guidance Regarding Special Initiative to Process Rating Claims Pending Over Two Years” (emphasis added).  In sharp contrast, a VA Public Affairs office press release issued the same day focuses on a different and much larger population: “The Department of Veterans Affairs announced today it is implementing an initiative to expedite compensation claims decisions for Veterans who have waited one year or longer” (emphasis added).

By constantly moving the goal posts, VBA makes objective measurements of their performance difficult.  We urge Congress to end the confusion sown by VBA and VA by establishing a clear set of measurements and then holding agency leaders to those goals.

The Bottom Line

Timeliness and accuracy remain the bottom line measurements of VBA performance for older, unadjudicated claims.  At the end of March 2013, before VBA announced the new policy of adjudicating claims pending two years or longer, the average number of days to complete a claim was 291.5 days.  As of May 13, 2013, the average number of days rose sharply to 338.4 days.  That’s a 16 percent increase in less than two months.

In Los Angeles, California, VBA’s average time to complete a Veteran’s disability claim is a staggering and outrageous 588.5 days, or nearly 20 months.

In conclusion, VBA’s claim delay and error crisis appear to be worsening.  We believe VBA should either abandon this ill-conceived “special initiative” or revise it to ensure that the claims of provisionally-rated Veterans are not held hostage for a year or longer pending a final, appealable decision.  Additionally, VBA must be closely monitored by an agency outside VBA to ensure the process serves a beneficial purpose by improving accuracy and timeliness.

We respectfully ask Congress to consider the following four steps:

1.    Confront VBA on the obvious danger that VBA will provisionally rate claims artificially low, thus depriving Veterans of compensation.

2.    Confront VBA on the lack of due process for Veterans who are not satisfied with VBA’s provisional rating, yet are not provided with appellate rights for one year so the Veterans may continue to pursue their claims.

3.    Order VBA to provide monthly statistics about the number, age (in days), and RO location of all appealed claims on remand now pending at VBA, to include the results of this “special initiative.”

4.    Order VBA to immediately produce and promptly execute an action plan to timely and accurately complete these appealed claims, including those on remand from the Court and Board, that are waiting years, and in some cases decades.

We continue looking forward to working with the House Veterans’ Affairs Committee so our Veterans receive accurate and timely decisions to their VA disability claim applications and appeals.

Too many Veterans died waiting on a decision from VBA, especially Veterans waiting for a decision on an appealed claim; nearly 20,000 during Fiscal Year 2012, according to CIR’s reporting.  The situation is intolerable, and we encourage Congress to take action.

We are concerned that VBA’s new policy is little more than a public relations effort to cast a shadow on the recently exposed and unacceptably long delays in adjudication.  Without oversight, additional staffing, and training, we believe VBA’s Fast Letter will cause more problems for Veterans and will ultimately backfire.