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Witness Testimony of Carl Blake, Paralyzed Veterans of America, National Legislative Director

Mr. Chairman and members of the Subcommittee, on behalf of Paralyzed Veterans of America (PVA), I would like to thank you for the opportunity to testify today on the Board of Veterans Appeals (BVA or Board) process and the Appeals Management Center (AMC).  The activities that occur at this level of the claims process have a significant impact on the lives of thousands of veterans each year.  I will frame my statement in terms of the role that PVA plays in the appeals process, our perceptions of that process, and the challenges that face both the Department of Veterans Affairs (VA) and PVA.  I will also make some recommendations that we believe could improve this process. 

As you know, PVA is the only congressionally chartered veterans service organization that represents veterans with spinal cord injury or dysfunction.  PVA appeals representatives play an important role in the appeals process at the BVA and the AMC.  Our representatives prefer to resolve claims without the need for an appeal, by educating paralyzed veterans on the benefits provided by law, to obtain those benefits for those veterans, to avoid frivolous claims and appeals, and to aid the VA in identifying issues and assembling evidence.  Our goal is to resolve differences with VA at the lowest possible level through cooperation with VA’s decision makers.  We aid the VA by identifying statutory and regulatory authorities that permit VA to grant a claim, and assist VA in obtaining the evidence the adjudicators need or choose to seek.

PVA maintains a data base and diary system to ensure that the claimant and VA perform their responsibilities in the appeals process, to include the Notice of Disagreement (NOD), Statement of the Case (SOC), and Substantive Appeal (VA Form 9), in a timely manner.  When deemed appropriate, we encourage appellants to utilize the Decision Review Officer (DRO) and to utilize the opportunity to appear at a personal hearing in order to resolve appeals as early as possible. PVA helps appellants prepare for hearings and appears with appellants at hearings.

When efforts to resolve disputes are unsuccessful at the VA regional office (RO), we prepare and submit appeals to the Board of Veterans’ Appeals (BVA) with representation by our experienced staff at our National Appeals Office collocated with the BVA.  PVA perennially maintains an enviable record of favorable resolutions by BVA with minimal denials, we believe as a result of comprehensive review and careful preparation for BVA consideration.  In fact, in a recent BVA decision, the Board stated, “Here, the veteran is represented by a highly respected national Veterans Service Organization which is well versed in veterans’ law.”  Approximately 40 percent of appeals represented by PVA are remanded.  When appeals are remanded to the Appeals Management Center, we continue representation through our network of National Service Officers who maintain local contact with the appellant and assist with the submission of further evidence or other responses.

As Congress attempts to address concerns related to the claims backlog, specifically as it relates to what occurs in the appeals process, it is important to understand factors contributing to the current situation at the BVA.  The BVA anticipates that by the end of FY 2007, the Board will enter approximately 45,000 decisions.  Currently, the average docket date for decisions entered by the Board is June 2005.  Meanwhile, approximately one third of appeals are currently remanded.  According to the VA’s own studies, a significant number of BVA remands were required because the Agency of Original Jurisdiction—usually the Regional Office—failed to fully and/or properly develop or decide the claim in accordance with existing instructions and directives of the Department.  This factor alone should be examined and addressed sooner rather than later as we believe that no meaningful reduction in the claims backlog can be achieved without paying attention to this problem.

We believe that changes introduced into the claims process by enactment of the Veterans Claims Assistance Act (VCAA) and a series of precedent interpretations of the Act entered by the U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit resulted in unanticipated numbers of appeals remanded by BVA for compliance with the new law and new interpretations, peaking at a remand rate of more than 50 percent. 

The VA realized then that Regional Offices were doing a poor job on remands, so the BVA began doing its own claims development without regulations permitting it.  The VA then changed the regulations to allow this practice.  The regulations were subsequently found not valid in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  The Court held that the BVA cannot use evidence it develops unless the veteran waives the right to have the evidence reviewed by the RO in the first instance.  In response to this decision, the VA created the AMC to handle the remands in Washington, D.C., where they could do the same evidence development but not compete with new claims, and hopefully resolve these claims faster and better.  The AMC was then staffed and resourced to handle the historical average number of BVA remands—about 12,000 per year.

As a result of the unanticipated increase in the number of remands—well in excess of the 12,000 per year estimate—the AMC was quickly overwhelmed.  It then formed three satellite offices located in St. Petersburg, Florida; Cleveland, Ohio; and Huntington, West Virginia to attempt to handle the volume of cases.  The AMC inventory is now at the level originally planned.  The VA’s data indicates that AMC review on average is completed in less time than at ROs and results in higher allowance rates.  PVA’s experience at the AMC was initially favorable.  We experienced approximately a 30 percent allowance rate on remand at AMC in the early years.  Upon request, we were also able to solicit the cooperation of AMC employees and resolve especially complex cases or cases for people with terminal illness or financial hardship.

In addition to and apart from the aforementioned problems identified at the Agency of Original Jurisdiction, significant customer service challenges for the VA are presented and always will be presented in the appeals process.  Foremost in the minds of appellants, PVA and the VA is the goal of having appeals resolved in a timely and accurate manner.  The Veterans Benefits Administration (VBA) and BVA have been stressing to their employees the need to quickly adjudicate the claims and appeals in order to reduce the backlog.  However, as shown by BVA’s “average docket,” appeals remain pending before the BVA for an average of two years.  All agree with VA’s stated goal of improving the timeliness of this process.  Unfortunately, timeliness competes with accuracy and quantity competes with quality.  Confirmation that efforts to process appeals faster is winning over efforts to produce quality decisions is the consistently high error rate found in BVA decisions on appeal to the U.S. Court of Appeals for Veterans Claims. 

In fairness to the VA, judicial review does require the VA to conform to new precedential decisions.  Appellants at the Court will, as they must, seek the most favorable interpretation of laws and regulations presented in their appeals.  Such advocacy is obviously consistent with the statutory scheme controlling the adjudication of veterans benefit claims. 

Merely creating templates to comply with mandates established in Title 38 U.S.C. is not enough and results in necessary remands because the claimants do not receive the information they need and adjudicators have a tendency to focus less on the facts and law involved in individual claims.  With VA’s data indicating that nearly a third of remands are required because of the inaccuracies in the initial determination, and with the recent revelations of the disparities between the results of adjudications depending on the location of the RO, the veteran community is reasonably skeptical of an RO decision.  When a veteran receives a letter that contains an inaccurate statement, whether or not the inaccuracy would have an impact on the decision, the veteran loses confidence in the ability of the RO to fairly and accurately decide his or her claim.  This lack of confidence has had the natural effect of increasing the number of appeals filed.  Veterans hope that Washington staff will provide a more accurate decision.

With the emphasis placed on the timeliness of the adjudications in support of the goal of reducing the backlog of claims, there exists an environment at VA that favors speed and numbers of decisions over accuracy.  We continue to receive candid reports from VA employees expressing their desire to perform more careful reviews, who feel compelled to maintain their production goals for the quantity of work.  The degree of accuracy and consistency impacts the number of appeals.  With the systems used by VA to credit employees for work performed, there exists an immediate benefit to the employee to maintain a high quantity of work.  Maintaining the quality of work is achieved primarily through sampling by the Compensation and Pension Service which does not share the same impact on the rating process or the employees.  Simply put, there is no substitute for doing the work correctly the first time.

PVA also has concerns about the piecemeal process of appeals decisions.  With the creation of the AMC, it is not uncommon for a veteran to have issues simultaneously pending before a Regional Office, the AMC, the BVA and possibly in the Court.  Since VA remains wedded to a paper claim file for most issues, this requires VA to frequently ship files around the country as different offices compete over a single record to adjudicate the issues pending within their own jurisdiction.  Maintaining control of the claim files is challenging and shipping costs are expensive.

An appeal often presents multiple issues, such as service connection for multiple disabilities, the evaluation of disabilities and perhaps an appeal for a resulting inability to maintain employment.  A single BVA decision will often contain a grant of an issue, denial of an issue and a remand of an issue.  In this circumstance, the file will be transferred to the AMC where the grant of a benefit by the BVA will be implemented by a rating decision and then the AMC will proceed to comply with the BVA remand instructions.  The decision to have the AMC act first by implementing the benefit granted by BVA has improved the timeliness of these awards compared to past procedures.  By design, the AMC does not accept jurisdiction on new appeals, only those matters remanded by the BVA.  Therefore, if a veteran disagrees with a rating entered by the AMC, a Notice of Disagreement must be filed at the RO and the new appeal must wait without action until after the return of the file.

At times, resolution of one issue may affect another.  If the BVA recognizes this potential, it may choose to simultaneously remand multiples issues.  As with all decisions of the Board involving judgment, the BVA may or may not agree in a given case and may deny one issue to the detriment of an appellant and decline jurisdiction on a related issue.  Our experience at the BVA leads us to conclude that the BVA as a body is inconsistent in its response to pleadings that a decision on a matter before them should be deferred until after a separate issue is resolved.  In the effort to reduce the backlog, we perceive reluctance on the BVA’s part to entertain additional issues that would introduce further delay.

Ultimately, splitting jurisdiction between several offices that compete over a single record precludes a comprehensive review and introduces additional delay.  To best represent how complex and complicated this can be, the following chart (developed by PVA appeals staff) reflects the situation a single veteran may face as he or she navigates the appeals process.

  Flow Chart showing a sample appeal at the U.S. Court of Appeal for Veterans Claims

With all of these considerations in mind, we would like to make a few recommendations and attempt to explain their potential impacts.  We believe that VBA must accelerate the progress toward an electronic claims record system.  As long as VA continues to use a paper file shipped around the country, the claims and appeals process will be done in an expensive and antiquated manner.  As demonstrated by the Veterans Health Administration’s outstanding electronic medical record, similar gains in access to records can be realized in the claims and appeals process, as well as significant cost savings as VBA and the BVA move toward a “Virtual VA.”  We urge Congress to accelerate funding of VA’s transition to an electronic claims record.

PVA also believes that centralized training better prepares ratings specialists at all levels.  Training of rating specialists was historically conducted at the local level by the more senior staff.  The VA now provides centralized training at its Veterans Benefits Academy located in Baltimore, Maryland and via the VA intranet.  The Compensation and Pension Service also issues Decision Assessment Documents (DAD) in response to Court precedent opinions to inform staff of these decisions.  The VA should be lauded for these actions.  Furthermore, as we have called for in The Independent Budget, co-authored by PVA, AMVETS, Disabled American Veterans, and the Veterans of Foreign Wars, Congress should fully fund VA’s training initiatives.  Improved and continued centralized training should help reduce inconsistencies and disparities between Regional Offices and should improve consumer confidence.

The VA and VSOs can also explore opportunities to share resources for training.  Moreover, Congress should authorize VA to provide greater access for VSOs to VA’s training modules.  For example, PVA has prepared a Guide for Special Monthly Compensation that has been adopted for rater training placed on VA’s intranet.  The PVA Guide has also been distributed via BVA Special Monthly Compensation (SMC) training.  PVA staff also interacts with other VSOs at their training events. 

Another point that The Independent Budget has advocated for is significant increases in staffing levels in the VBA at all levels.  If the FY 2008 Military Construction and Veterans’ Affairs appropriations bill is enacted prior to the start of the new fiscal year on October 1 (a prospect that seems to be getting dimmer every day), the VA will be provided much needed funding to add more than 1000 new full-time equivalent employees (FTEE) to VBA. 

However, it is important to realize that decisions made on appeal require greater expertise and often involve more complex questions of medicine and law.  As such, it takes years to train a competent ratings specialist.  Trainees should simply not be conducting appellate review due to the complexity of these decisions.  Increases in staffing today should be seen as an investment in the future.  In the end, staffing issues do not have a quick fix.

Mr. Chairman and Subcommittee members, I would like to thank you once again for allowing PVA to present its views on the Board of Veterans Appeals and the Appeals Management Center.  We look forward to working with you to continue to improve the claims process at all levels.  I would be happy to answer any questions that you might have.