Joint Hearing of the Committee on Homeland Security and Governmental Affairs of the U.S. Senate and the Committee on Veterans’ Affairs of the U.S. House of Representatives at 1:00 p.m. CDT.
Submission For The Record of Vets First, a Program of United Spinal Association
Chairman Runyan, Ranking Member Titus, and other distinguished members of the Subcommittee, thank you for the opportunity to submit for the record our views concerning the appeals process for veterans’ disability benefits claims.
VetsFirst, a program of United Spinal Association, represents the culmination of over 60 years of service to veterans and their families. We provide representation for veterans, their dependents and survivors in their pursuit of Department of Veterans Affairs (VA) benefits and health care before VA and in the federal courts. Today, we are not only a VA-recognized national veterans service organization (VSO), but also a leader in advocacy for all people with disabilities.
The backlog in adjudicating a veteran’s claim for disability benefits has been well documented. Unfortunately, the backlog for appealing a claims decision is just as, if not more, egregious. VetsFirst believes that we must look not only at the backlog in both the adjudication of initial claims and the appeals process but also the impact that each process has on the overall claims backlog. For the purposes of this testimony, we will focus on that part of the appellate process that involves the regional offices and the Board of Veterans’ Appeals (BVA or Board).
Appealing a claim for veterans benefits is a lengthy process that begins when a veteran receives a decision on a claim that he or she disagrees with and files a Notice of Disagreement (NOD) with the regional office. Upon receipt of the NOD, the regional office will review the veteran’s claim. The veteran has the right to a hearing with a Decision Review Officer (DRO) before the regional office issues the Statement of the Case (SOC). Following the issuance of the SOC, if the veteran still disagrees with the decision, then he or she must perfect his or her appeal to BVA by filling a substantive appeal, a VA Form 9. Once filed, the regional office reviews the case again before finally certifying it to BVA. From there, the Board will review the case and render a decision, which may include remanding the case back to the regional office for further action.
The backlog in processing benefits claims and appeals has continued to grow in recent years. The VA’s Office of Inspector General (OIG) reported in a May 2012 report that the inventory of appeals had increased more than 30 percent between fiscal year 2008 and fiscal year 2010. The OIG also reported that the inventory of compensation claims increased by 40 percent.
According to the report of the chairman of the Board for fiscal year 2012, BVA issued 44,300 decisions during that fiscal year. Excluding the time a case is pending with a VSO for preparation of a written argument, BVA’s average appeals time (from the time received to the time of decision) was 117 days. The total average appeals time for BVA to render a decision, 251 days, represents a fragment of the time an appellant must wait for a decision from BVA.
Prior to being received by BVA, a substantial period of time has already elapsed. From the time the claimant files an NOD to the issuance of an SOC takes an average of 270 days. The average veteran then takes 40 days to return the VA Form 9. After receiving the appeal request, it takes an average of 692 days for the regional office to certify the appeal to BVA.
The OIG’s report found that of the eight regional offices that were audited only one processed NODs within the 125 day average set by VA policy. The actual range in processing times was 120 to 448 days. VA policy also seeks to have all appeals certified within an average of 125 days. Specifically, for each SOC and SSOC that the regional office completes the Veterans Benefits Administration (VBA) allows the regional office 125 days. For the eight regional offices reviewed, the goal set by VBA for certifying appeals ranged from 153 to 195 days. The actual averages for certifying appeals for these offices ranged from 236 to 1,219 days.
We currently represent a veteran whose appeal illustrates the delays that many veterans face in receiving benefits due to the appeals backlog. On June 18, 2009, the veteran appealed a May 1, 2009, rating decision. The regional office issued an SOC on October 23, 2009. In December 2009, the veteran submitted a VA Form 9 appealing the May 1, 2009, denial. On January 14, 2011, the veteran submitted additional medical evidence that we believe will allow the regional office to grant his claim through an SSOC. To date, neither the veteran nor our organization has received an SSOC or any information regarding the certification of his substantive appeal.
The OIG’s report found that, “VBA’s management of appeals was ineffective in providing timely resolution of veterans’ appeals.” The OIG’s conclusion resulted in part from the assertion that VBA failed to ensure adequate staffing to address appeals. In addition, regional offices failed to make adjudicating appeals a priority for DROs and rating specialists.
The DRO position was deployed nationwide in 2001 in an attempt to expedite the appeals process and limit the number of claims that are ultimately appealed to BVA. Veterans who wish to have their claims reviewed by a DRO are required to affirmatively select that option. A 2006 VBA study group recommended that all NODs should be reviewed by a DRO. That suggestion was rejected because it would be too costly. The VA’s OIG has also asserted that appeals delays occurred because DROs do not review all appeals.
VetsFirst believes, however, that there are some claims for disability benefits that a regional office will almost never grant. An example of such a claim might be one for stateside exposure to Agent Orange, which has been granted by the Board. In those cases, the veteran should be allowed to go directly to the Board without having to endure a lengthy regional office appeals process.
According to VA’s OIG, another advantage of requiring a DRO review of all appeals would be eliminating the requirement to send the appellant an appeal election letter. Eliminating this step would save approximately 60 days. VBA has recently implemented the use of an optional, standardized NOD form, VA Form 21-0958. However, this form does not provide the appellant the
opportunity to choose a DRO review. At the very least, adding the election to any current or future NOD form would also eliminate this need.
We are concerned, however, that DROs spend too little time actually working on appeals. After creating the DRO position, VBA allowed DROs to have other duties not related to appeals. These other duties include training other staff and serving as a second signature on appeals. Although initial claims processing is extremely important, VBA cannot sacrifice those veterans whose claims are waiting in the appeals process. DROs’ focus should be on processing appeals.
Requiring DROs to focus on appeals will help to ensure that appeals move more quickly. We agree with the VA’s OIG that cases should be reviewed within 60 days of receiving the NOD to ensure that any needed additional information to review the appeal will be requested in a timely manner. We believe that this should be a statutory requirement to ensure that action on an appeal is not unnecessarily delayed.
We also believe that a statutory requirement to certify an appeal upon receipt of a substantive appeal within a specified number of days is needed to further address the overwhelming delay in the appeals process. We suggest that this period be statutorily reduced to 120 days in all applicable appeals. If the regional office is unable to meet the deadline, then they should be required to inform the veteran, the veteran’s representative, and BVA of the delay and explain the nature of the delay. VBA should also be required to report to Congress annually regarding the number of cases in which regional offices were unable to meet their deadlines, the types of cases, and the number of delays by regional office, along with action steps for reducing or eliminating the need to delay appeals.
Reducing the amount of time a veteran waits for certification of his or her appeal will also lead to other benefits. It will reduce remands that occur due to a veteran’s medical exam being outdated and not allowing for proper adjudication of the appeal. It will also reduce the need for regional office personnel to issue multiple SSOCs. Specifically, we believe that the need for multiple SSOCs will drop dramatically, because significantly reducing the number of days to certification will reduce the likelihood that additional information will be obtained and submitted.
A copy of the regional office’s Certification of Appeal, VA Form 8, should also be provided to the veteran and his or her representative. Sharing this form will allow the regional office to address any problems or misunderstandings regarding the appeal before the veteran’s file is transferred to the Board. We believe that this process will provide another avenue to reduce adjudication time where there is a disagreement regarding the issues on appeal.
Although there are many ways to expedite review, the regional offices’ review process must be thorough. Deficiencies in claims adjudication that will lead to remands must be addressed earlier in the appellate process. Otherwise, veterans’ claims for benefits will be needlessly delayed.
According to BVA, in fiscal year 2012, the average time for an appeal that was remanded for further action was 445 days. One of the goals of BVA for fiscal years 2013 and 2014 is to eliminate avoidable remands. We agree that resolving appeals properly at the earliest possible stage is critical to eliminating the need for an appeal to BVA and a subsequent remand to address an error that should have been addressed earlier by the regional office.
We believe that BVA must continue to train DROs to ensure that they are accurately reviewing claims that could be addressed at the regional office. Claims that clearly lack a valid exam, for example, should be addressed by the DRO. Veterans should not have to wait through a lengthy review process to get to the Board to receive a remand for a new exam.
BVA continues to closely track the reasons for remands. This data is available to all VA components for management and training. We believe that this data must be transparent and used to develop publicly available metrics that will reduce avoidable remands.
VetsFirst believes that the appeals process at the Board could also be modified to expedite a veteran’s appeals. For example, veterans who include a legal argument with their appeal should be given the opportunity to advance on docket. Currently, most cases are adjudicated in docket order. Veterans who have already provided all of the information that they wish to provide should not be required to wait. Such a process would encourage veterans and their representatives to provide the legal argument earlier in the process in the same manner that the fully developed claims process promotes ready to rate claims in the initial claims process.
Appeals from veterans who are of advanced age, suffering severe financial hardship, or seriously ill may under regulation already be advanced on docket. However, that advance does not continue for appeals that are remanded to the appeals management center or the regional office. Although VBA has recently testified that claims filed by veterans who are homeless, terminally ill, or Medal of Honor recipients or were Prisoners of War are processed as expeditiously as possible, there is no similar regulatory or statutory protection for these claims. We believe that veterans who are advanced on docket at the Board due to one of the criteria laid out in the Board’s regulation should continue to be advanced to the resolution of their appeal.
Because the Board is an important component of the full claims process, we also hope that VA is truly working to ensure that BVA’s needs have been and will continue to be considered in the development and implementation of the Veterans Benefits Management System (VBMS). VA has stated that VBMS is important to streamlining the claims process and reducing the backlog. Ensuring that the full claims process, including the appeals process, is able to benefit from efficiencies inherent in an electronic records management environment is crucial to addressing issues that contribute to the overall backlog.
Greater accountability for ensuring that appeals do not languish at either the regional office or the Board is needed. Veterans who file appeals need to receive their duly owed benefits as much as
those who are filing initial claims. The appeals process deserves more attention because it is an integral part of the process veterans and other beneficiaries must navigate to receive compensation or other benefits. We believe that there are important efficiencies that can be implemented that would not only expedite the process but also ensure a quality decision. Without a quality, timely review of a veteran’s appeal, his or her claim will only continue to cycle through the remainder of the appeals process. For issues that could have been addressed earlier in the appellate process, this is a particularly troubling result for far too many veterans.
Thank you for the opportunity to submit for the record VetsFirst’s views regarding the appeals process of veterans’ disability benefits claims. We are ready to work in partnership to ensure that all veterans are able to receive the benefits in a timely manner that allow them to reintegrate in to their communities and remain valued, contributing members of society.