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Submission For The Record of Paralyzed Veterans of America

STATEMENT FOR THE RECORD
OF
PARALYZED VETERANS OF AMERICA
FOR THE
HOUSE COMMITTEE ON VETERANS’ AFFAIRS
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
CONCERNING
IMPLEMENTATION UPDATE: FULLY DEVELOPED CLAIMS

SEPTEMBER 11, 2013

 

Chairman Runyan, Ranking Member Titus, and members of the Subcommittee, Paralyzed Veterans of America (PVA) would like to thank you for the opportunity to offer our views on the Fully Developed Claims’ process and the initiation of the one year look-back for benefits, which took effect on August 6, 2013.  The claims backlog has been challenging the Department of Veterans Affairs (VA) for years and PVA appreciates you conducting this hearing to examine the issue.

Over the next several years, an estimated 1.2 million active duty service members will separate from the military and be welcomed home only to fall in line behind veterans who have been awaiting a decision on their VA claims.  Of these claims, 66 percent have been “backlogged” for more than 125 days, according to March 2013 Government Accountability Office (GAO) testimony before Congress.  The claims backlog, those cases pending 125 days or longer, stands at 490,000, which is down from the 530,000 reported on June 15, 2013.  VA says its total claims inventory of 773,000 is the lowest since April 2011, and down from 808,000 on June 15.  Those 490,000 claims in the backlog, combined with an anticipated wave of new claims as operations in Afghanistan wind down and the military downsizes, raise concerns about the feasibility of meeting VA Secretary Eric Shinseki’s 2015 target goal of eliminating the backlog and adjudicating all VA claims in 125 days or less.

 

The Veterans Benefits Administration (VBA) continues to implement several initiatives to meet the Department's goal of eliminating the claims backlog in 2015.  In April 2013, the VA launched an initiative to expedite disability compensation claims decisions for veterans who have waited a year or longer.  In the following month, the VBA announced that it was mandating overtime for claims processors in its 56 regional offices to increase production of compensation claims decisions through the end of fiscal year 2013.  As a result of these initiatives, the VBA's total claims inventory has declined to a level not seen since August 2011.  The number of claims in the backlog has been reduced by 17 percent compared to the highest point in March 2013.

 

One particular initiative, the Fully Developed Claims (FDC) program, has purportedly played the most significant role in reducing the backlog.  Fully developed claims require veterans to provide all supporting evidence in their possession when they submit their claims.  Often, this evidence is already in the veteran's possession, or is evidence the veteran could easily obtain, such as private treatment records.  By submitting this evidence with their claims, veterans significantly reduce the amount of time VBA spends gathering evidence from them or other sources, often the longest part of the claims process.  The FDC process is being touted as the fastest way of processing compensation or pension claims, many being processed in an average of 117 days according to VA.

 

In May, the VA announced a new partnership with Veterans Service Organizations and others known as the "community of practice."  The effort seeks to reduce the compensation claims backlog for veterans by increasing the number of FDCs filed by veterans and their advocates.  Also, veterans who file an original "fully developed claim" for service-connected disability compensation may now be entitled to up to one year of retroactive disability benefits.  The retroactive benefits, for FDCs submitted between August 6, 2013 and August 5, 2015, are the result of a comprehensive legislative package passed by Congress and signed into law by President Obama last year.

 

It is PVA’s belief that the FDC process has proven effective in reducing the VBA's claims backlog by increasing production of claims decisions and decreasing waiting times.  Also, because VA assigns FDCs a higher priority than other claims, veterans receive decisions to their claim faster than traditional claims.  That said, PVA notes a number of concerns with the FDC process.

 

First, very few complex, multiple-issue claims in PVA’s inventory, that also involve claims for Special Monthly Compensation, could be submitted as FDCs.  When compared with other major Veteran Service Organizations, PVA’s contribution to the FDC process has been substantially less.  For example, the Veterans of Foreign Wars processed 16 times more FDCs than PVA; the American Legion processed 27 times more; and Disabled American Veterans processed 35 times more FDC claims.  This variance is due to a combination of factors.  PVA clients tend to be severely or catastrophically disabled veterans or survivors with claims presenting complicated medical questions.  Developing these claims with higher complexity is often made more difficult by the unavailability of, or limited access to, evidence from various sources at the time the claim was filed or the need for a medical opinion to reconcile ambiguous interpretations of evidence.  Since PVA’s goal is to attain the maximum grant possible for clients with complex claims, as opposed to merely getting a decision, the FDC process does not offer the most efficient path to a timely, accurate decision in many cases.

 

Another key concern relates to the potential erosion of due process should a veteran disagree with an FDC decision or desire to add evidence later that supports a higher rating.  By agreeing to submit an FDC, claimants essentially waive their rights to contest the decision in exchange for a faster decision.  There has been no data provided on the number of FDCs that were appealed, and it may take years before the Court of Appeals for Veteran Claims reconciles the foreseeable due process issues inherent in the FDC process.  With much of the discussion focusing on the VBA disability claims backlog, very little attention has been placed on the appeals process.  However, the downstream effects of the backlog fall to the jurisdiction of the Board of Veterans Appeals where nearly 43,000 appeals now await adjudication.  Many veterans who endured the wait associated with backlogged claims face a new waiting game – which lasts 251 days on average – once denied FDCs become appeals.  The current remand rate now sits at 46 percent, which means nearly half of appeals are returned to VBA due to errors or incompleteness that must be corrected before the Board can issue a substantive decision.  This could be especially problematic for FDCs that are appealed due to the unresolved due process issues that will inevitably ensue.  Remanded appeals will spend the initial average of 251 days in the process plus the time it takes to fulfill a remand order.  This can take months or even years in some cases.  Reducing the backlog cannot be accomplished by simply replacing one for another.

 

PVA has conducted detailed research into the claims backlog and its impact on the lives of veterans with disabilities as well as lessons learned from past reports, testimonies, and experiences related to the backlog.  PVA makes the following recommendations which are drawn primarily from the findings of this research.

 

First, those most responsible for assembling evidence pursuant to submission of a Fully Developed Claim, which is considered the preferred method of claims submission by VA, should be given controlled access to records in the Defense Personnel Records Information Retrieval System (DPRIS).  DPRIS is an electronic gateway that allows authorized users to access the Services’ Official Military Personnel File (OMPF) and Joint Services Records Research Center (JSRRC) repositories online in a secure and efficient manner.  This authorized access would eliminate wait times associated with the lack of interagency responsiveness and empower claimants to develop their claims with the necessary evidence of record from the outset.

 

Second, in order to ensure the accuracy of decisions in cases presenting complex medical questions, VBA should provide claimants with timely access to VA clinicians who can provide medical opinions based on applicable regulations and objective review of all available evidence.  Veterans Health Administration (VHA) Directive 2012-002, “Documentation of Medical Evidence for Disability Evaluation Purposes,” provides for the completion of a Disability Benefits Questionnaire (DBQ) in support of a disability claim upon request.  But many treating clinicians still remain disinclined to complete a DBQ, leaving veterans with virtually no other avenue except the lengthy Compensation & Pension exam process for obtaining an expert interpretation of medical evidence. Rather than leave it to the prerogative of VA clinicians to assist, VA should direct them to cooperate with claimants to the greatest extent they are capable.

 

Finally, VBA should be required to provide monthly reports on the number of Fully Developed Claims that are appealed by Notice of Disagreement and submitted to the Board of Veterans Appeals (BVA) by Form 9, “Appeal to Board of Veterans' Appeals.”  In anticipation of due process ambiguities linked to FDCs, VBA and BVA should establish a joint working group to explore and develop a process for the timely and efficient implementation of clear due process standards as these issues are reconciled by the Board.

 

Mr. Chairman, PVA looks forward to the elimination of the claims backlog by 2015 and support the efforts of VA with the Fully Developed Claim process.  But we recognize that this will only be possible with strong oversight of this committee and a continued aggressive focus by VA.  Otherwise years from now we will still be discussing the backlog while veterans will still be waiting for benefits that they have earned.

 

Thank you again for the Committee’s dedication to our veterans.  PVA would be pleased to take any questions for the record.

 


 

Information Required by Rule XI 2(g)(4) of the House of Representatives

 

Pursuant to Rule XI 2(g)(4) of the House of Representatives, the following information is provided regarding federal grants and contracts.

Fiscal Year 2013

No federal grants or contracts received.

Fiscal Year 2012

No federal grants or contracts received.

Fiscal Year 2011

Court of Appeals for Veterans Claims, administered by the Legal Services Corporation — National Veterans Legal Services Program— $262,787.