Good Afternoon Chairman Hall, Ranking Member Lamborn and Members of the Subcommittee.

Thank you for holding this important hearing on the state of Veterans Benefits Administration.  I am pleased to provide this testimony on behalf of the Veterans Law Section of the Federal Bar Association.  The FBA is the foremost national association of private and government lawyers engaged in the practice of law before the federal courts and federal agencies.  Sixteen thousand members belong to the Federal Bar Association.  The Veterans Law Section of the Federal Bar Association is one of a dozen sections within the Association, organized by substantive areas of practice.  The comments herein are exclusively those of the Veterans Law Section and do not necessarily reflect the views or official position of the entire Association.

Numerous written submissions and hours of testimony have sought to find a solution to the state into which the Department of Veterans Affairs has fallen.  The Claims Summit twelve weeks ago and the Hearing before this Committee five weeks ago all addressed the same issues – what has gone wrong and how do we fix it?   There are several facts which are inescapable.  The mounting backlog is out of control.  The backlog is symptomatic of a process out of control.  The operative term is “control.”  The Veterans Law Section (VLA) and NOVA met with the Transition Team before Secretary Shinseki agreed to assume the monumental task of bringing the VA under control.  Our two organizations stressed that the most important challenge of the Administration was gaining control through implementation of vertical accountability. 

Vertical Accountability

Since that time Secretary Shinseki has come on board and vowed to break the backlog and to turn the VA into a Veteran–friendly agency.  There have been numerous studies and audits since that time.  Not a single one of them has found in a single RO the seeds of perfection.  Nor have any of them found strong internal lines of accountability that run from the Regional Office management level to the Secretary’s desk.  The VBA is the size of a small army.  For too many decades it has operated as if the colonels were all in charge -- each with an individual regional command that operates day-to-day as the individual circumstances may dictate. 

The regions between the 57 individual offices and that of the Secretary seem to be a bureaucratic no-man’s land, with numerous intermediate positions that at the end of the day are wholly accountable to no one but themselves.  This clearly must end.  Report after report documents the fact that individual offices are extremely inventive in devising methods for making the figures look good when in reality they are not.  They also uniformly note the need for greater oversight.  Oversight begins at the Secretary’s desk with the re-arrangement of the bureaucracy of VA into an organization with a strong, vertically accountable chain of command.  This, we firmly believe, is the greatest challenge.  This Secretary, more than any of his immediate predecessors, has the leadership skills to meet the challenge and at the same time gain the trust he must have from at least two communities -- the veterans and the VA itself.

Technology Challenges – When will we see a paperless VA??

Technology and the challenge of transforming the paper-laden process of claim adjudication into a smoothly operating system in which all information is readily available seem insurmountable.  We all heard during the Claims Summit and subsequently that while a great many prior attempts had been discarded as unworkable, there was great hope for a new effort in Baltimore.  At the same time a plethora of working programs seem to exist for the purpose of tracking cases and quality oversight.  Apparently they lack the capacity to talk to each other.  Other organizations and agencies have managed to accomplish the transition.  The CAVC initiated electronic filing by just doing it by a date certain.   There were glitches at the beginning, but they were worked out.  The IRS and Social Security have, in the last few years, accomplished this task with systems nearly as vast, but more vertically manageable.  The Veterans Law Section of the Federal Bar Association believes that inasmuch as the VA must begin somewhere, that a pilot system should be set up in one office, preferably a smaller office, and begin to scan into an expandable, web-based system all claims filed in that office and follow through with the development of those claims in the same manner.  As the information comes in on those claims it would be scanned into the system.  As the problems are recognized and solved, the system can be integrated into another office.  The point is, the only way to solve the problems posed by the current structure is through technology.

Process Management

The Veterans Law Section continues to urge VBA to change the basic way in which the individual offices process claims.  The POD project, a pilot program at the Little Rock Regional Office and described in the Booz Allen Hamilton Report, has not yet been audited for effectiveness and improvement.   However, in terms of potential for processing the numerous complex claims with which the system is now significantly over-loaded, it shows the most promise.  It is also, because of the internal structure, the best candidate for a starting point for digital claim processing.  

The POD process should integrate into discrete teams, each with representatives from five of the six currently identified “teams”: Pre-determination, Rating, Post-determination, Public contact and Appeals.  The number of team members from each “specialty” should be weighted according to workload – number of files with seven or less issues as the demarcation point and the relative experience of the team members in those specialties.  As the individual office acquires added personnel, utilizing the team structure would provide opportunity for more concentrated OJT and mentoring.  The most important aspect of this modality is the inculcation of “ownership” of the individual claim.  There is less opportunity for inadequate records requests and medical VAEs.  When questions arise, communication with the individual veteran, attorney or representative is encouraged.  Interaction among team members should also improve employee morale, and “humanize” the veteran by providing him/her with an identity.

VLS suggests as another variable the assignment claim development by issue areas specific to some identifiable types of claims.  VAOIG inspections of several Regional Offices, reported from November 2009 – March 2010, identified multiple challenges in providing timely, accurate rating decisions, among which were consistent difficulties with PTSD, herbicide exposure and TBI.  Establishing medically specialized teams to process claims related to these issues within the POD modality, rather than turning them into brokered files, makes sense. These are disabilities that usually involve several body systems.  The medicine is complex and daunting, with distinct training issues.  Providing concentrated instruction in areas in which there are inherently complex medical issues would decrease processing time by training triage members of each team to recognize the issue and hand the file off immediately to the specialty team, and thus putting it quickly into the proper queues. 

Similarly, the knowledge level in the medical specialty triage and pre-development team members would enhance the probability of recognizing those claims in which the reports and medical history submitted with the claim render it ready to rate or nearly so.  To this end, VLS renews the encouragement of a treating physician rule.  Regardless of whether treatment has been by VHA or private providers, nexus opinions and questions of the level of disability/extent of impairment should be addressed to those providers.  The concept that a VHA physician is incompetent to provide a nexus opinion because the treating physician is inherently biased is inherently absurd.  There is eminently more  reliable information to be gained from the provider who has spent considerable time treating the veteran and to whom a digital copy of the c-file has been made available than from a contractor or VHA personnel who may or may not have actually seen the file and who spends at best 30 minutes (and usually only 10–15 minutes) with the veteran.

Medical VAE requests would be properly generated with the appropriate questions sent to the provider, including designation of the professional level of knowledge required for an adequate exam.  This would require improved communication between VBA and VHA managers to provide for the appropriate expertise as well as timeliness of the exams.  (The DVA-OIG Audit of VA’s Efforts To Provide Timely Compensation and Pension Medical Examinations, March 17, 2010, determined that “VA has not established procedures to identify and monitor resources needed to conduct C&P medical exams and to ensure resources are appropriately planned for, allocated and strategically placed to meet the demand.”) Concurrently with improved coordination should be the elimination of such practices as assigning complex neurology or oncology issues to nurse practitioners.

VLS continues to encourage VBA to enhance the position of Decision Review Officer as immediate supervisory personnel over the Claim Processing Teams within the POD structure.  The DRO program was initially designed to limit the number of appeals to the Board by resolving the issues at the RO appeals level.  Built into the program was the opportunity for hearing, paper review and/or dialogue with the veteran or representative.  The process is susceptible to an expanded role.  Each DRO, tested and certified to the position would then exercise quality review over the decisions rendered by the teams assigned to him for adequacy of development, as well as accuracy of the decisions.  The DRO would provide mentoring for the RSVRs as part of the quality review.  A cogent, intelligible rating decision should issue that clearly and straightforwardly sets out the issue, the reason for the decision and the options available to the veteran.  Should the decision result in an NOD, the right to DRO review and a hearing should be clearly stated, as well as the instructions for filing a Form 9 and Substantive Appeal.  (VLS continues to urge that the SOC be eliminated).

Training Issues

The statistics from the Board and the CAVC give a strong indication that there are and will continue to be serious training issues in both the rating and appeals process.  CAVC routinely remands 70-80 percent of the cases coming before it.  Another 5 percent are reversed and then remanded.  The Court agrees with the Board only 20-25 percent of the time, according to Judge Kasold’s testimony of May 2009.  In a system in which the Board has claimed an accuracy rate of in excess of 90 percent, there is clearly a disconnect.  Similarly, the Board, in FY 2009 either remanded or allowed 61 percent of the 48,800 appeals in which they made decisions, thus finding that the Regional Office decision was correct in only 39 percent of the cases.  This level of error is strongly suggestive of serious training deficiencies from the Benefits Academy to the continuing education which every rating employee is required to receive annually.

VLS encourages VBA to re-examine the curriculum and the qualifications of the instructors at the Academy, with the result that specific protocols be in place for appointment as an instructor.  We also urge that advances in adult education methodology and recruitment of experts and consultants external to VA be utilized.  The statistics indicate that the instructional and training entities have become cocooned, such that too often errors are repeated through instruction.  The Academy should be the focal point and resource for all instruction agency-wide with a Director directly accountable to VBA management.

A complex array of  disabilities affect the veteran population residual from Vietnam, the Gulf War, and OIF/OEF.  Rating employees have expressed the need for instruction in TBIs, and a significant error rate has been found with PTSD and herbicide exposure.  VBA must ensure that the medical instruction blocs meet the needs of the demographics of the veteran population.  The medical issues of exposure to toxins from the Gulf War to the burn pits in Iraq must be included as these affect multiple body systems.

VLS also recommends that the POD modality also include a full-time training coordinator in each Regional Office who monitors on site the training needs and requirements, sets a curriculum consistent with those universal to the agency, and ensures

that instruction and Q&A are available to the individual employee.  Additionally, on-site proficiency testing is then available for VSRs ready for promotion to RVSRs and RVSRs aspiring to the position of DRO.   (The exam certifying the DRO should equate with the Agent’s exam and re-certification should be required bi-annually to ensure currency with case law and regulatory changes.)  On-site training should also include training in medical issues.

Attorney Representation

VLS continues to urge legislative amendment of 38 U.S.C. Sect. 5904(c) to expand the availability of fee based representation to veterans filing the initial claim with VA.  We must remember that when the original fee limitation was imposed, the veteran was in nearly all instances marginally educated and lawyers were generally looked upon with disfavor.  There was little licensing and few restrictions on practice or ethics.  Even with WWII the average veteran was part of an agrarian demographic. The issue of attorney representation was not addressed The regulations governing fee-based practice before the agency are the most restrictive of any federal agency.  Regardless of extensive self regulation and state and federal court rules of ethics and conduct, VA continues to regard attorneys with unwarranted mistrust.    

The demographic has changed.  Today’s veteran has fought a highly technological war.  This is the best educated army in history.  Men and women who have fought and survived the significant horrors of today’s battlefield deserve the dignity of determining for themselves whether they wish to represent themselves, be represented by an organizational VSO or retain professional counsel.  This generation of veterans, like the Vietnam veterans before them, has founded their own veterans’ organizations to address the issues inherent in the conflicts they experienced.  Just as the Vietnam veterans, they support fee-based representation before the Agency beginning at the point at which the claim is filed.

The most recent annual report of the Chairman of the Board of Veterans’ Appeals demonstrates the value of attorney representation to veterans, their families and survivors.   The enactment of the Veterans Benefits, Health Care, and Information Technology Act of 2006, P.L. 109-461, for the first time imparted to veterans the right to retain counsel should they wish to do so.  In FY 2009, those claimants who had attorney representation at the BVA received a larger percentage of favorable results than did those without attorney representation and a larger percentage of favorable results than did those who were represented by VSOs.

The Veterans Law Section strongly supports the repeal of the restriction on attorney representation.  We further support the rejection by this Committee of the proposed legislation which the VA drafted and titled the “Veterans Benefits Programs Improvement Act of 2010.” The proposed legislation is antithetical not only to according veterans the right to attorney representation in filing their claims for compensation, but also to any meaningful review of Agency decisions regarding those claims.  Section 207 of the proposed legislation significantly limits the application of the Equal Access to Justice Act (“EAJA”) fees by limiting the veteran’s payment of EAJA fees.  Upon issuance of a CAVC decision remanding the case back to the Agency, and determination of the appellant to be the prevailing party with a substantially justified legal position, the appellant under this provision, would not receive the awarded fee.  Only if the remand results, either before the Board or the RO in an ultimate award of monetary or other benefits would the EAJA fees ultimately be forthcoming.  The Veterans Law Section submits that this provision will substantially limit attorney representation before the Court.  Consequently this provision requires the closest scrutiny by both Congressional chambers.

VLS does not support other provisions of the Secretary’s proposed legislation, including the imposition in Sections 202 and 203 of jurisdictional time limits on appeals within the Agency.  This is a somewhat cynical effort to eradicate the backlog by making it extremely difficult for a generation of veterans to perfect their claims and meet shortened filing deadlines -- when over half of them are diagnosed with TBIs, PTSD or other mental disorder, all of which impair the ability to organize and respond to deadlines.  Neither does VLS support the proposal in Section 206 that the Board no longer be required to render decisions in which factual determinations are supported by adequate reasons and bases, but such determination must only be “plausible.”  

In conclusion, the Veterans Law Section thanks the Committee for the opportunity to share our views on some of the issues facing the VA and our veterans.  We must take whatever measures are necessary to make whole the men and women who have put their lives on the line in order that we may have the luxury of this discussion.  We owe them not only treatment of wounds seen and unseen but as much restoration of their quality of life as is humanly possible.  With now over a million pending claims, it matters not who represents whom, or on whose shoulders the blame properly lies.  The job must be done, and rather than ensure that each recommendation for revision or reform is nibbled into oblivion by the ducks of turf protection, it is time to recognize, as the cartoon strip character Pogo once did, that we have met the enemy and he is us.

Thank you for the opportunity to present these views on behalf of the Veterans Law Section of the Federal Bar Association.  I will be happy to respond to any questions you may have.