Congressman Filner, Congressman Buyer and Members of the Committee:

Thank you for the opportunity to present this statement on behalf of the Veterans Law Section on behalf of the Federal Bar Association.  The Federal Bar Association is the foremost national association of private sector and government lawyers engaged in the practice of law before the federal courts and federal agencies.  Sixteen thousand members belong to the Federal Bar Association.  The Veterans Law Section (“VLS”) is comprised of lawyers who are associated with all aspects of veterans and military law.  The comments herein are exclusively those of the Veterans Law Section and do not necessarily reflect the views or official position of the entire Association.

The growing backlog of veterans’ disability claims pending before the Department of Veterans Affairs and the U.S. Court of Appeals for Veteran Claims has been the subject of numerous written submissions, testimony and commentaries.  The Claims Summit in March and a further hearing before the House Committee on Veterans’ Affairs in June all addressed the same issues—what is wrong with the claims process and how can it be fixed? Several facts are inescapable.  The backlog is out of control, symptomatic of a process out of control.  The operative term is “control.” There is as much need for vertical accountability in the area of training as in administration of the Veterans Benefits Administration.

The problems:

The statistics from the Board and the CAVC give a strong indication that there are and will continue to be serious training issues in both the rating and appeals process.  CAVC routinely remands 70-80 percent of the cases coming before it.  Another 5 percent are reversed and then remanded.  The Court agrees with the Board only 20-25 percent of the time, according to Judge Kasold’s testimony of May 2009. Even if one attributes a portion of the remands to philosophical differences between the Board and the Court, a 70-80 percent remand rate is strongly indicative of a significant level of error in the proceedings below. In a system in which the Board has claimed an accuracy rate of in excess of 90 percent, there is clearly a disconnect.  Similarly, the Board, in FY 2009 either remanded or allowed 61 percent of the 48,800 appeals in which they made decisions, thus finding that the Regional Office decision was correct in only 39 percent of the cases. 

This level of error is strongly suggestive of serious training deficiencies from the Benefits Academy to the continuing education which every rating employee is required to receive annually.  Training issues were addressed in the April, 2010 GAO study, “Veterans Disability Benefits, Expanded Oversight Would Improve Training for Experienced Claims Processors.” GAO determined that the VBA delegates a considerable amount of control to the individual Regional Offices, while providing a fairly standardized curriculum for about half of the required eighty hours of annual training. They found that a majority of the experienced personnel (over two years experience) had difficulty meeting the eighty hours of required training with their workload requirements. 

Because of the uniform level of subject matter addressed in the training, many of the rating personnel either felt that they did not need it or the training did not meet their specific needs. Two examples were identified by personnel as inadequate: case management and special monthly compensation. Clearly “one size fits all” does not fit within the context of continuing education, which is what the requirement of yearly training is intended to be. Rating employees have expressed the need for additional education in the rating for TBI.  Decisions from the Court and the Board demonstrate a significant error rate with PTSD and toxic exposures. The conclusion was that the training component of VBA lacked controls to ensure the content and quality of the eighty hours of instruction required annually and thus did not meet the standards cited. In the area of training as well as in administration, it is essential to have a vertical chain of command with accountability for the quality of instruction, content and availability of information to every rating employee. 

In a sense, a well-trained cadre is a happier cadre.  There are very few in the VBA who do not do the best job they can to ensure that the veteran is allocated appropriate compensation for the harm suffered.  There have been numerous complaints reflected in IG reports and Congressional testimony to the effect that poor training and lack of experience on the part of supervisory and executive personnel has affected morale in the workplace.  Education and testing for leadership skills to develop a well trained, qualified cadre of supervisory and executive personnel is essential to the maintenance of the high standards required across the board.  Inadequate training has apparently led to the early dismissal of some of the new hires, thus reducing the number of new rating personnel when the real problem was lack of adequate training.

Some suggested solutions:

VLS recommends that vertical accountability be established with a directorate of training within the Office of the Secretary, as a separate entity. Within this entity should be located the Academy and under the Academy a vertically organized network of adult education specialists with expertise in education, medical issues and regulatory process. The Director of the Academy should be directly accountable to the Secretary.

VLS encourages VBA to re-examine the curriculum and the qualifications of the instructors at the Academy, with the result that specific protocols be in place for appointment as an instructor.  We also urge that advances in adult education methodology and recruitment of experts and consultants external to VA be utilized.  The statistics indicate that the instructional and training entities have become cocooned, such that too often errors are repeated through instruction.  The Academy should be the focal point and resource for all instruction agency-wide.

VLS encourages education and testing for leadership skills to develop a well trained, qualified cadre of supervisory and executive personnel, which would have a significant, positive effect on employee morale. Supervisory personnel lacking knowledge of “what they do” has been noted in earlier hearings and reports as sources of low morale in the workplace. Supervisory personnel should receive continuing education in regulatory and case law developments as do the rating personnel along with leadership and administrative skills. The institution of results-oriented performance protocols rather than the “work credit” system should apply equally to supervisory and executive personnel and rating personnel. The quality of the decisions in the Regional Office should be the measure of performance. 

VLS recommends that should the POD modality be adopted (and continues to recommend that this be the case) that it include a full-time training coordinator situated in each Regional Office reporting directly to the Director of Training.  The primary duty would be monitoring on-site, the training needs and requirements, setting a curriculum consistent with those universal to the agency, and ensuring that instruction and Q&A are available consistently to the individual employee.  Additionally, on-site proficiency testing is then available for VSRs ready for promotion to RVSRs and RVSRs aspiring to the position of DRO.  (The exam certifying the DRO should equate with the Agent’s exam and re-certification should be required bi-annually to ensure currency with case law and regulatory changes.) Uniformity in the programs across all the ROs is critical, with standardized performance objectives and outcomes.  Innovations in the field of adult education and the use of outside consultants as advisors in the development and evaluation of educational and training programs should also be utilized.

VLS recommends that training programs be thoroughly evaluated for accuracy and thoroughness by resources both internal and external to VA.  A complex array of  disabilities affect the veteran population residual from Vietnam, the Gulf War, and OIF/OEF.  Rating employees have expressed the need for instruction in TBIs, and a significant error rate has been found with PTSD and herbicide exposure.  VBA must ensure that the medical instruction blocs meet the needs of the demographics of the veteran population.  The medical issues of exposure to toxins from Vietnam, the Gulf War and the burn pits in Iraq along with the sequelae of TBI and multiple amputations must be included as these affect multiple body systems and may lie latent for years before becoming symptomatic (such as hepatitis C).  Medical training is critical, as it is necessary to orient lay personnel to the vastly complex array of medical issues inherent in the average claim for compensation arising from conflicts of the last three decades.

VLS recognizes the complex issues presented by rapid acquisition of new personnel and the necessity of providing adequate, but concentrated training to these employees.  The Agency can ill afford to discharge new hires as the result of inadequate training.  The utilization of every resource both in and outside of VA is required, thus VLS strongly recommends the establishment of training protocols that also utilize resources and expertise external to VA with instructors selected through a certification process and recruited from the Veterans Law Bar as “Visiting Professors.” Similarly, recruitment of “Visiting Professors” from entities experienced in educating laity in medical issues, protocols and processes should be implemented.  Efforts such as these ensure dissemination of information which is accurately consistent with current case law,  regulatory developments and appropriate medical knowledge.

We thank the Committee for the opportunity to share the foregoing views and recommendations.  We must all take whatever actions are necessary to make as whole as we can, without regard for ethnicity,  the men and women who have put their lives on the line in order that we may have the luxury of this discussion.  We owe them not only treatment of wounds seen and unseen but as much restoration of their quality of life as is humanly possible.  With now over a million pending claims, it matters not who represents whom, or on whose shoulders the blame properly lies.  Only through thorough and accurate education as well as closely monitored implementation of the material learned will the quality of claims process improve.  Until the quality of performance attains the level that precludes innumerable remands the backlog will persist.  Increasing the quality of education and training and rewarding adequately the performance that implements it is the challenge VA now faces.  The views expressed herein are solely those of the Veterans Law Section and not necessarily those of the entire Association.

Respectfully submitted.