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Submission For The Record of Glenn R. Bergmann and Joseph R. Moore Attorneys and Partners Bergmann & Moore, LLC

We thank Subcommittee Chairman Jon Runyan and Ranking Member Dina Titus for inviting Bergmann & Moore, LLC to submit a statement for the record regarding the continuing failure of the Department of Veterans Affairs (VA) to timely adjudicate Veterans’ disability compensation claims remanded from the U.S. Court of Appeals for Veterans Claims (Court) or the Board of Veterans’ Appeals (Board) back to the Veterans Benefits Administration (VBA).

Founded in 2004, Bergmann & Moore is a national law firm based in Bethesda, Maryland.  We represent Veterans throughout the United States whose disability claims were denied by VBA, the Board, and the Court.  Since 2004, the firm has successfully represented more than 1,500 Veterans and surviving beneficiaries at the Court.  The firm’s partners and several associates were previously employed with VA.  Based on our VA background and practice concentration, we have a strong interest in ensuring VBA processes disability claims in a timely and accurate manner for our Veterans and their surviving family members.

Our statement focuses on appealed disability compensation claims handled by VBA.  We acknowledge the Court does not have a backlog and appeals at the Court proceed through the system with improving speed.

“Why Are Veterans Waiting Years on Appeal?”

There are several reasons why Veterans are waiting years for VBA to finish adjudicating claims.
   
The primary reason for the unreasonable delay in processing appeals is because VBA does not make the final adjudication of appealed claims a priority.  As recently as April 2013, when VBA announced a new policy of identifying and processing claims pending two years or more, VBA ignored appealed claims in the instructions to regional offices to identify and process significantly aged claims. ( )  This new evidence shows VBA does not make these claims a priority.

A second reason is that VBA does not have enough staff to complete existing and appealed claims in a timely and accurate manner.  The evidence of a chronic staffing shortage was revealed last month when VA issued a press release and announced mandatory overtime for all VBA claims processing staff for the remainder of Fiscal Year 2012. ( )  VBA’s poor planning continues hampering VBA’s ability process existing and appealed claims in a timely and accurate manner.  

A third reason, as several Congressional hearings painfully revealed over many years, is the fact VBA emphasizes speed and production over quality and accuracy.  A recent example of VBA’s inappropriate and myopic focus on speed was repeated in April 2013, when VBA’s Fast Letter 20-13-05 announced the agency would identify and process within two months all disability claims pending two years or longer.  The artificial deadline to complete Veterans’ disability creates an atmosphere within VBA where quality falls by the wayside.  When VBA over-emphasizes speed, VBA makes additional errors that lead to more appeals further clogging the already overwhelmed VBA.

Bergmann & Moore reviewed recent rating decisions under VBA’s new Fast Letter.  We identified chronic and systemic errors confirming our noted concern last month that in VBA’s haste to exalt speed over quality, VBA would make additional mistakes.   We are concerned VBA issued thousands or more incorrect and incomplete rating decisions in an attempt to clear the decks of cases pending two years or longer.  VBA’s frequent and harmful mistakes that deprive Veterans of deserved disability benefits include:

1.    A failure to properly develop evidence,
2.    A failure to consider evidence favorable to the Veteran,
3.    Improper denials for service connection when warranted by the evidence,
4.    Incorrect low ratings,
5.    Incorrect effective dates,
6.    Incorrect reasons and bases for a decision, and
7.    A VA medical exam that is incomplete, obsolete, or not ordered.

A fourth reason why Veterans wait is VBA’s lack of nationwide training.  We believe a more experienced VBA employee needs to be assigned the task of addressing VBA’s errors identified by the Board or Court.  VBA training results confirm the urgent need for additional nationwide training in order to avoid mistakes.  This month, VBA publicly reported that new employees processed 0.6 claims per day with an accuracy rate of 60 percent after the first six months.  After VBA’s new “Challenge” training began, productivity rose to 1.5 claims per day with an accuracy rate of 94 percent. ( ).  While these accuracy statistics seems unreasonably high in both instances, assuming the same methodology was used to determine both numbers it at least can be said that the training had a positive impact, even if not to the degree claimed by VBA.

However, VA reported 2,100 VBA employees, or 17 percent of VBA’s 12,277 staff on hand during Fiscal Year 2012, completed the new “Challenge” training. ( ,  )

Bergmann & Moore urges VBA to implement mandatory and universal training throughout VBA.  We understand and appreciate the fact that when VBA sends already thin ranks of employees off to training, productivity temporarily falls before quality improves.  This is why long-term planning for both staffing and training are needed so VBA can both accurately and timely process Veterans’ disability claims.

Continued Congressional Oversight Remains Essential

This important Congressional oversight hearing about VBA’s broken claim appeal system occurs less than one month after Bergmann & Moore submitted a statement for the House Veterans’ Affairs Committee’s hearing on VBA’s questionable plans to adjudicate claims pending two years or longer at VBA. ( )

In our prior statement, Bergmann & Moore reviewed VBA’s questionable plans to process claims pending two years or longer.  We documented for the record how VBA ignored claims remanded from the Board and the Court in the face of strong and clear laws enacted by Congress that appealed claims must be provided “expedited” treatment. ( )  We described VBA’s Fast Letter 20-13-05 wherein VBA failed to mention how the agency would identify and then provide expedited handling for appealed claims.  

On behalf of our clients, Bergman & Moore reports to Congress again how we remain deeply dismayed at VBA’s continuing failure to provide expedited processing of appealed claims, nearly all of which remain pending more than two years.  In fact, we find it absolutely unacceptable that some appealed claims remain pending at VBA for a decade or longer.

VBA’s refusal to acknowledge and follow this important law protecting Veterans’ rights causes real and significant harm to Veterans because they often go without the VA healthcare and economic support provided to Veterans with service-connected disabilities – assistance they urgently need to improve their health as well as feed and house themselves and their families.

The consequences for VBA’s delays processing appeals are significant: as many as 53 Veterans die each day waiting on a VBA claim decision.  Due to a lack of VBA transparency, no one knows how many Veterans died, or how long they waited, for VBA to process an appealed claim.

VBA’s chronic inability to process appealed claims pending at VBA in a timely manner is worthy of prompt and forceful Congressional action so that far fewer Veterans die waiting on VBA for the disability benefits they earned for medical conditions associated with their military service.

Solutions

Congress should consider several practical solutions to address VBA’s claim appeal quagmire.  We thank Congress for taking the first and most important step toward resolving VBA’s claim delay and error crisis: holding this hearing today and demanding accountability from VBA leaders.  We ask Congress to hold a series of hearings on this important issue until such time as VBA reaches the goal of providing expedited processing of Veterans’ disability claims on appeal, as required by law.

We respectfully ask Congress to consider the following additional six steps:

1.    Order VBA to improve and increase transparency so Congress knows the extent of the crisis.

Last month, Bergmann & Moore asked Congress to determine the number and length of time appealed claims languish at VBA after a remand from the Board or Court.  In order to determine the scope and depth of VBA’s appeal delay crisis, VBA must provide this salient data on a monthly basis to Congress and the public.  

The only public information available appears on VBA’s “Monday Morning Workload Report” (MMWR).  As of June 17, 2013, VBA reported 251,244 appealed claims pending.  In order to monitor compliance with the law and performance, VBA should be required to obtain and share the nationwide number of pending appealed claims, sorted at the regional office level, including:

A.    The source of those claims (i.e., on remand from the Board or Court),
B.    The length of time pending on remand,
C.    The accuracy of appealed claims completed by VBA after the remand,
D.    The number of remands per claim, and
E.    The number and types of errors identified by the Board and Court

2.    Order VBA to develop and implement a plan to promptly process appealed claims.
 
We are not aware of any VBA plan to identify and expeditiously adjudicate appealed claims now pending at VBA regional offices, as already required by law.  This means VBA continues to ignore the law, even in the face of repeated Congressional action and oversight hearings.  

Therefore, Congress should ask VBA if it has the ability and intent to follow Section 7112.  Specifically, Congress should ask VBA for a specific date the agency will have sufficient staff and training as well as a detailed plan with benchmarks to ensure our Veterans receive an expedited review of an appealed claim.  

3.    Order VBA to increase the number and improve the performance of Attorney Fee Coordinators at regional offices.

In November 2012, Bergmann & Moore wrote VBA regarding the need to improve access to VBA points of contact for VA-accredited attorneys and private practitioners representing Veterans.  Updates on the status of a claim are obtained from the Attorney Fee Coordinators (AFC) at each VBA regional office.  Bergmann & Moore advised VBA how the Detroit regional office would not provide the status of a Veterans’ claim or provide other pertinent information vital to the claim.  VBA’s actions deprive Veterans of quality representation and due process.

In January 2013, VBA responded to our letter without addressing our complaint about the Detroit regional office.  The same month, Bergmann & Moore again wrote VBA and asked for a point of contact at VBA’s Central Office in Washington, DC to resolve refusals of AFCs to provide information.  Five months later, VBA still has not responded. Our goal is for VBA to increase the number of AFCs so there is at least one on duty at each regional office who can respond in a timely and accurate manner about the status of our clients’ claims.  We also hope VBA identifies a point of contact in Central Office who can resolve cases where an AFC refuses to provide pertinent information.  In a related matter, VBA still has not provided on-line, real-time, computerized access to Veterans’ claim records for VA-accredited attorneys and agents representing Veterans.  While we support the goal of computerizing VBA claim processing, we strenuously object to the unreasonable manner in which VBA has locked out attorneys and agents.

4.    Order VBA to improve and expand its Disability Benefit Questionnaires.

VBA continues increasing the number and the use of Disability Benefit Questionnaires (DBQ), a standardized form where VA medical professionals document the existence and severity of medical conditions during a Compensation and Pension (C&P) exam.  DBQs are specific for each specific medical condition.  According to VBA, “Of the 987,353 examination requests, 255,747, or 25.9 percent, contained [an additional] DBQ medical opinion worksheet.”  

We have concerns about DBQs because the form is also used by private medical professionals and it does not include space for the provision of nexus opinions. Nexus opinions are absolutely critical to a successful claim, as a claim without a nexus cannot be successful.  ( )  

Based on VBA’s own statistics, hundreds of thousands of Veterans’ disability claims could avoid prolonged appeals and delays each year if VBA simply incorporated a nexus opinion request question on each DBQ form rather than asking examiners to complete an additional medical opinion worksheet.

Thus, DBQs should be amended to include a place on the form for a private practitioner to offer a nexus opinion.  Such an opinion would provide significant probative value, especially for initial disability claims where the Veteran seeks service connection.  The current lack of a nexus opinion on DBQs often leads to appeals that languish for years.

5.    Order VBA to suspend the Standardized Notice of Disagreement.

Bergmann & Moore is concerned about VBA’s new Standardized Notice of Disagreement (SNOD) because the new form is highly technical and therefore adversarial to Veterans without advanced legal training.  The form forces each Veteran who wishes to disagree with a regional office rating decision to identify and report VBA’s error, such as the claim’s effective date or a conditions percentage rating.   

We are troubled about VBA’s use of SNODs because an unrepresented Veteran, especially a vulnerable Veteran with brain damage (such as traumatic brain injury) or a mental health condition (such as posttraumatic stress disorder), may be at a distinct disadvantage.  Such a Veteran may not understand what is asked or required using VBA’s SNOD.  As a result, a Veteran may not identify all of VBA’s errors, and thus lose appeal rights for VBA’s errors, further complicating and lengthening the appeal process.  This is especially important for appeals involving individual unemployability that often require detailed knowledge of and experience using VA laws and regulations.

Under the law, all a Veteran is required to do is provide a written notice of disagreement in a timely manner in order to begin the appeal process.  There is no legal requirement for a Veteran to cite VBA’s specific error (38 USC § 7105(a)).  Forcing a Veteran to do so on a new and technical form establishes a new process.  VA has not provided for notice and comment on such a substantial rule change impacting Veterans’ due process rights.  Therefore, the implementation of SNOD should be suspended.

Conclusion

Bergmann & Moore thanks Congress for holding this critical hearing on VBA’s chronic inability to process more than 250,000 Veterans’ appealed disability claims in a timely manner.   We believe there is no “silver bullet” solution to VBA’s chronic problems.  Similarly, there is no single fix for VBA’s willful failure to adjudicate claims on appeal from the Board and Court in an expedited manner.

We believe a set of practical solutions and vigorous oversight, as described above, should provide the information and tools VBA and Congress need to accurately identify and properly resolve this longstanding issue and thereby improve VBA’s appeal claim processing speed and accuracy for our Veterans and their families.

Time is of the essence.  Our bottom line is that no Veteran should die waiting on a VBA claim decision, especially Veterans who received a remand from the Board or the Court and are entitled to an expedited final adjudication of their claim, as required by law.
 
Biographies of
Glenn R. Bergmann and Joseph R. Moore
Attorneys and Partners
Bergmann & Moore, LLC
Bethesda, Maryland

Founded in 2004, Bergmann & Moore LLC is a leading law firm recognized for providing quality representation to Veterans and their families throughout the United States.

Glenn R. Bergmann previously served as an appellate litigator in VA’s Office of the General Counsel Appellate Litigation Division in Washington, DC.  Since departing from VA, he has successfully represented more than 1,500 veterans before the Court of Appeals for Veterans Claims in Washington, DC.  From 2010 to 2011, Mr. Bergmann served as President of the U. S. Court of Appeals for Veterans Claims Bar Association, and he currently serves on its Board of Governors.  He also currently serves on the Court’s Rules Advisory and Admissions-and-Practice Committees.

Joseph R. Moore previously served as an Associate Counsel at the Board of Veterans’ Appeals in Washington, DC.  Since 2007, Mr. Moore has served on the Board of Directors for the National Organization of Veterans’ Advocates (NOVA), a non-profit association of more than 500 attorneys representing Veterans.

Together, they work exclusively with Veterans and their families on disability claims at all levels of the Department of Veterans Affairs, the U.S. Court of Appeals for Veterans Claims, and U.S. Court of Appeals for the Federal Circuit.