Submission For The Record of Matthew Middlemas
Chairman Runyan, Ranking Member Titus, and Subcommittee Members. I am honored and privileged to have this opportunity to offer my personal views to you regarding the appeals process. This is my own personal view and I am not acting as an official of the United States Department of Veterans Affairs and I am not expressing any views of the United States Department of Veterans Affairs and again, this is my personal statement as a citizen of the United States. This statement was also prepared on my own time and not while on duty.
I have been a Decision Review Officer (DRO) at the Milwaukee VA Regional Office (VARO) since October 2002. I have worked at the VARO since November 1997. The following are my thoughts and concerns about the appeals process within the Veterans’ Disability Claims process. Please consider my use of the word “him” to mean both male and female veterans.
The appeals process begins with the claims process itself. Once we make a decision on a claim - that is “rate” the claim - and inform the Veteran of the decision, the Veteran has one year from the date of our decision notification letter to file a Notice of Disagreement (NOD).
Currently there is no required form for the Veteran to submit in order to file an NOD. There is no required language a Veteran must use to file an NOD. The veteran must simply express, in writing, disagreement with a decision.
In May 2013, VA released a new form, VA Form 21-0958, Notice of Disagreement, which is now being attached to Veterans’ decision notification letters. However, there remains no requirement for this form to be used in order to file an appeal.
Currently, the veteran has the choice of 2 different options to review his initial NOD: 1) DRO review, or 2) Traditional review.
A DRO review is a de novo review of the veteran’s entire claims file, which is conducted by a DRO. The DRO has a higher level of decision-making authority than that of a Rating Specialist, to including single signature authority to call clear and unmistakable errors (CUE), and the authority to change a prior decision in the veteran’s favor based on review of the same evidence that was present in the prior decision (difference of opinion).
A Traditional review can be performed by a Rating Specialist or a DRO, and it is not a de novo review. The review authority is the same as a Rating Specialist.
If a veteran files an NOD without indicating a DRO election, we must write to the veteran, inform him of his options, and give him 60 days to respond. We cannot work the appeal until we either receive a response or the 60 day response period has expired. If no response is receive, the appeal defaults to the Traditional process.
Appeals are controlled by the date of receipt of the NOD in a system called VACOLS (Veterans Appeals Control and Locator System). A single NOD may express disagreement the decisions rendered in a single Rating Decision, or it may express disagreement with decisions rendered in multiple Rating Decisions which have been issued in the prior year. There is no limit to the number of decisions or ratings with which the Veteran may disagree. There is also no limit to the number of NODs a veteran may have pending at any given time. A Veteran may also continue to file new claims while his appeal(s) pend.
If a Veteran requests a Regional Office hearing, this must be conducted and we must receive the transcript before a decision can be rendered. If the Veteran submits or identifies additional evidence, we must develop for and try to obtain the evidence prior to rendering a decision. If VA examinations are deemed necessary, we schedule these and wait for the examination reports before rendering a decision.
Once the appeal issues are ready for decision (RFD), ideally, NODs should be worked from the oldest pending to the newest received, with the exception of priorities, which include Homeless Veterans, Seriously Injured/Wounded Veterans, Congressional Inquiries, and Financial Hardship cases, etc. Priorities are worked before all other pending claims.
This also means that a Veteran who has filed multiple NODs over time, may only receive a decision concerning his oldest pending NOD, while the issues contained in his other “younger” NODs remain pending.
The file is reviewed and decisions are rendered. If all of the issues within an NOD can be granted in full, a rating is prepared to grant the issues. Otherwise, we must issue a Statement of the Case (SOC) to the Veteran, which provides the applicable VA regulations and explains the reasons for the decision(s).
Once an SOC is issued, the DRO process is complete. If the appeal continues, it is now under the Traditional appeals process. DRO authority does not extend beyond the issuance of the SOC.
In order for a Veteran to continue the appeal, the VA must receive a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of Veterans’ Appeals, or an equivalent statement of intent to continue the appeal. There is no legal requirement that a specific VA Form must be received in order to continue an appeal, but VA must receive some form of communication in writing from the Veteran or his Representative indicating an intent to continue the appeal.
A Veteran has EITHER the remainder of one year from the initial decision notification letter, OR 60 days from the date the SOC was mailed, to file his Substantive appeal. Otherwise, his appeal rights for those issues expire, and the NOD is closed.
If the Veteran has filed a timely Substantive appeal, the next step in the appeals process is to certify the appeal to the Board of Veterans’ Appeals (BVA), which is to transfer jurisdiction of the appeal to BVA.
However, the Regional Office cannot physically send the claims file to BVA until all pending NODs and all pending claims have been decided. There can be no appeal issues pending before the Regional Office at the time the claims file is sent to BVA; otherwise, BVA will issue a Remand instructing the Regional Office to issue an SOC on any pending appeals.
Additionally, if the veteran has requested a BVA travel board hearing or BVA Video conference hearing, the claims file remains physically at the Regional Office until the BVA hearing can be scheduled.
In the past, if any additional evidence was submitted which related to the issues under appeal, then the Regional Office had to review the additional evidence, and if the appeal continued, it had to issue a Supplemental Statement of the Case (SSOC) explaining why the additional evidence did not change the prior decision and give the Veteran 30 days to reply. If yet more evidence was received, another SSOC was issued with another 30 day reply period. There was no limit to the number of SSOCs which could be issued. The appeal could not be certified to BVA until all of evidence in the claims file had been considered at the Regional Office level.
If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued. Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA.
This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process. Additionally, they will also have new claims pending in various stages of initial development. Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary. If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level. It was only then that we could physically transfer the file to BVA jurisdiction.
Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect. This change in law established an automatic waiver of Regional Office (agency of original jurisdiction) review of evidence received after receipt of the substantive appeal. The evidence is subject to initial review by BVA unless the appellant specifically requests, in writing, initial review by the Regional Office.
However, to date, we have received no guidance from Compensation Service and Pension and Fiduciary Service on how to implement this provision.
Therefore, at least at the Milwaukee Regional Office, we are still issuing SSOCs until we receive guidance to do otherwise. I would also note that I personally have seen two separate BVA Remands dated from April 2013, which is after the change in law, in which a BVA judge noted there was evidence in the claims file received after the substantive appeal which the Regional Office had not considered. Both Remands ordered the Regional Office to consider this evidence as part of the reasons for the Remand.
Hopefully, however, Section 501 of Public Law 112-154 will help us certify and transfer appeals to BVA in a much more timely manner. It will also, hopefully, reduce the number of Remands caused by the submission of additional evidence without a waiver of review by the agency of original jurisdiction.
As you can see, the appeal process is complex and concerns remain.
As there is no requirement to use a standardized form to file an NOD or a Substantive appeal, it is easy to miss an appeal as it may be hidden on page 22 of a veteran’s handwritten statement.
Furthermore, it is not always clear if the Veteran is actually filing an appeal or not. For example, use of the word “reconsider” may or may not mean disagreement. We try to clarify intent with the Veteran or Representative, but even then, the Regional Office may consider the veteran’s statement to be a new claim and issue another Rating Decision, but then BVA considers the same statement to be a missed NOD and Remands the issue for the Regional Office to send an SOC.
VA’s primary focus over the past several years has, understandably, been to find ways to break the backlog of claims.
This has resulted in Journeyman RVSRs feeling constantly pressured to produce more and more decisions at a faster and faster rate, while, at the same time, having their jobs threatened if their accuracy drops in the process. There are, unfortunately, experienced Journeyman RVSRs who have either quit or retired because they could not tolerate the pressure any longer.
This has resulted in trainee RVSRs (Rating Specialists) being released to single-signature rating before they are truly competent or comfortable in their duties.
The focus on breaking the backlog of claims resulted in the hiring of numerous RVSR trainees over the past several years. These individuals needed mentoring as well as someone to review the accuracy of their work until management felt they were sufficiently competent to rate single-signature. In my office, the majority of new hires and internally promoted employees needed second signature review of their work for at least one year before they reached an accuracy level sufficient for single signature. With the large number of trainees in our office, we did not have a sufficient number of Journeyman RVSRs to complete the reviews. Additionally, the RVSRs were being mandated to rate claims above all else. Therefore, the DROs were assigned co-signing and mentoring duties, which took up significant amounts of our time, which were then not spent working appeals.
RVSRs are being trained to use “tools” to help them generate their decisions, so there is nation wide consistency in decision making. However, unfortunately, it appears the RVSRs are not being fully trained on how to actually analyze all of the evidence in a claims file, so they are not always entering the most accurate and reflective evidence of a Veteran’s disability picture. Many RVSRs are now simply entering the data found in a VA DBQ Examination report into a tool, rather than looking at and weighing all of the evidence in the claims file. As a result, we are getting appeals from Veterans and their Representatives noting the other evidence of record which did not appear to be considered.
Likewise, current rating procedures only require an RVSR to provide the reasons for the decision. There is little to no discussion in the Rating Decision of how evidence was weighed and evaluated. As a result, we are getting appeals from Veterans and their Representatives because they simply do not understand how we arrived at our decision.
Understandably, DROs are some of the most experienced and knowledgeable employees concerning the claims process at most Regional Offices. However, as a result, we are regularly pulled from our appeal work duties and assigned other projects. During the recent Nehmer review, I was one of three DROs in our office who worked Nehmer claims exclusively for almost six months. We did not work any appeals during the Nehmer review. I personally spoke to DROs from other offices who also reported they were not working any appeals during the review.
Most recently, the Milwaukee appeals team was informed our office would be brokering-in over 5,000 claims in various stages of development, all of which are over one year old. The appeals team was informed we would be rating claims full-time through the end of the fiscal year, and other than priority cases, we would not be working any appeals during this time frame.
It is fully understandable that management needs the assistance of DROs to accomplish their goals; however, it is at the expense of the appeal workload, and as a result, appeals keep getting older.
In many Regional Offices, RVSRs work the Traditional appeals, and the DROs work the DRO elections. Working traditional appeals is actually part of the job standard for RVSRs. However, with the concern for the backlog of claims, the responsibility for working Traditional appeals is falling mainly on the DROs. RVSRs are focusing on rating claims, not Traditional appeals. There are far fewer DROs than there are RVSRs. DROs simply cannot handle the volume of pending appeals on their own. If we are going to make a dent in the appeal backlog, then we are going to need the assistance of the RVSRs.
Finally, VBMS is a concern for appeals. First, while it has been rolled out nation wide, it is not fully functional and has more “work arounds” than can be described here. The program regularly crashes for at least some portion of the day, so you cannot even use it. Decision makers regularly lose work they have been working on for hours. Either the program times them out and they lose their work, or they get an error message and everything just disappears. The entire program seems designed for initial claims processing, which does not require a detailed explanation of the reasons for the decision. However, for appeals, we still have to explain everything. The program has no glossary or autotext, which makes typing a decision even longer. It has no spell check, so the quality of our writing is poor in many cases. It does not allow you to copy and paste from another document, which just requires more time to type out the decision, thus getting less work accomplished during the day. Without any doubt, it has consistently taken me far longer to process an appeal using VBMS and VBMS-R than it ever took with a paper file and RBA 2000.
Finally, there really has been no guidance, to date, on how appeals will be worked into VBMS. Currently, appeals are controlled through VACOLS without end products. Therefore, any NODs which are received must be sent to the appeals team so a VACOLS record can be established. Unfortunately, some NODs are being scanned into an electronic VBMS file without ever being sent to the appeals team. Therefore, the appeals team does not even know an NOD was received unless someone has a reason to review the VBMS file for a different claim, or a Representative contacts us asking about the status of the Veteran’s appeal. Right now, under current procedures, it is very easy to lose control of an appeal in VBMS.
Unfortunately, in the entire claims process, appeals seem to be forgotten. When changes are made to the claims process and/or the programs used to process claims, very rarely is there direction or discussion on how the changes will affect appeals.
While reducing the length of time a Veteran must wait to receive a decision on a claim is very important, it cannot be at the expense of those veterans who are waiting for a decision on an appeal. As an Agency, we must also be focused on breaking the backlog of appeals. Why should a Veteran get a decision on his initial claim in 125 days (VA’s goal), but then have to wait 2 to 3 years, if not longer, for a decision on his appeal?
Thank you again for the opportunity to express to you my personal views of the appeals process and thank you for caring for our nation’s veterans.