CHAIRMAN HALL, RANKING MEMBER LAMBORN AND MEMBERS OF THE SUBCOMMITTEE:

Thank you for this opportunity to present the views of the 2.4 million veterans and auxiliaries of Veterans of Foreign Wars of the United States on the VA claims processing system.

An increasingly complex world

During my 30 year career with the Department of Veterans Affairs I was fortunate to meet, and in some cases, work with many of the highest leaders in what is now the Veterans Benefits Administration (VBA).  During one such meeting several of these executives spent a few minutes reminiscing about the days when they were young claims examiners in the 1950’s and ‘60’s.  They laughed about a disability pension program so simple that they were able to memorize the monthly benefit rates paid based on the breakdown of income received by veterans.  Under that program it was only necessary to compute income within a band, or a range, of income.  Income within that band was paid a single rate.

That simple program was replaced by what is now called Section 306 Pension; that, in turn, was replaced in 1979 by the “Improved Pension” Program.   The Improved Pension Program requires detailed reporting by claimants, verified through matching programs with Social Security and the Internal Revenue Service.  The pension benefit is adjusted up or down for every single dollar of countable income.  It is a program so precise that discovery of an extra $10 of income will lessen the pension by that amount while payment of an extra $10 for medical expenses may increase it. 

There are many positive and negative aspects to the Improved Pension Program.  However, it is

undisputable that it is not easy to understand and is certainly not “simple” to administer.

In truth, I am not aware of any program administered by VA that is simpler or easier to administer today than it was 30 years ago. 

When I started working for the VA in 1974 there were three education programs: Chapter 34, the GI Bill, Chapter 31, vocational rehabilitation, and Chapter 35, for certain dependents and survivors of veterans who either died from or were totally disabled by service connected disabilities.  Today, in addition to Chapters 31 and 35, there are separate programs for active duty and Guard and Reserve members.  Better for veterans?  Yes.  Simpler and easier to administer?  No.

Congress created the Court of Veterans Appeals, now the Court of Appeals for Veterans Claims (CAVC), in 1988 to provide veterans and other claimants an independent review of VA decisions concerning their entitlement to benefits.  In the 20 years since its creation, the Court has issued thousands of opinions affirming the decisions of the Board of Veterans Appeals (BVA).   During the same period, however, the CAVC has issued many other decisions which clarified, corrected or redefined VA’s interpretation of the law governing compensation, pension and education benefits.  These decisions, in turn, forced VA to rework its policies and procedures to conform to these new interpretations of the law.  In some instances, VA has had to rework thousands of cases to ensure compliance with court decisions. 

Few can dispute that veterans and other claimants have benefited from the improved understanding of the legal requirements surrounding the development and decision making process within VA.  However, no one anticipated the impact court decisions have had in making the work more complex.  And, as we have seen, increased complexity extends the time it takes to resolve claims and increases the opportunity for error.  Better for veterans?  Yes.  Simple and easy to administer?  No.

It is not just changes to the law and judicial review that have delayed VA decision making.  Until the last few years, staffing at VA experienced a decade’s long roller coaster ride that trended ever downward.  As an Adjudication Officer in Los Angeles from 1986 to 1996, I can report to you that we suffered through long periods of hiring freezes and delayed budgets.  Our annual attrition rate during that period averaged 15 percent and to be forced to wait a year or more before being able to hire anyone was disastrous to the orderly maintenance of a workforce capable of processing of claims.  Further, when we were able to hire, we were rarely permitted to recruit to fill all our needs. 

We soldiered on through those staffing draughts, always trying new ways to motivate and encourage our employees to produce more.  Although we had our successes, long periods of overtime that tend to exhaust employees, reduced flexibility due to staffing losses and an inability to timely fill critical vacancies resulted in gradually increasing backlogs.  Sadly, it also led to an increase in errors: mistakes that cost veterans and the government alike.

VA leadership experimented with different claims processing models and configurations of work activities.  While always well intentioned, these experiments generally failed either because they didn’t translate well from private industry or through poor execution.  Each failed business model caused VBA to fall further and further behind.

I mention all these things because they are not ancient history.  There has been no break in the last 10 years where the VA was problem free and operating on all cylinders.  The problems of the past continue to echo down to the present.  While the infusion of much needed staffing over the last few years is welcome, it takes years to properly bring those new employees to accomplish quality work at journeyman levels of production.

Axioms – self evident truths

There is no quick fix to VBA; there is only the opportunity for steady and deliberate improvement.

There is no magic bullet.  Any single plan to make the claims processing system simple and easy will make things only marginally simpler and easier on the VA bureaucracy and will occur at the expense of the rights and benefits of at least some veterans, dependents and survivors.  Any such plan is simply unacceptable.

Perhaps it is time to recognize that the world has changed.  There has been a silent paradigm shift over the last 30 years.  If for no other reason than judicial review, the Veterans Claims Assistance Act and the budgetary environment which exists today, it may be time to acknowledge that VA cannot be staffed at such levels as will allow it to produce quality decisions in the same time frame that earlier generations of dedicated government workers achieved. 

The converse of this may be to acknowledge that the better production and timeliness levels achieved in the 1950’s and ‘60’s may very well have been accomplished because there was less attention paid to procedural rights and that the VA may have exhibited a cavalier attitude when it came to interpreting the law and its own regulations.

It pains me to say this, but whether you agree with either view of history, the initial point remains: the world in which VA operates has changed and it may no longer be realistic to expect accurate benefit decisions in a short period of time.

If we concede for the sake of argument that the first three observations are accurate, there are still things that can be done to improve production, reduce backlogs (although perhaps not at the rate we would like to see) and ensure claims are completed with quality.

During my career with the VA I made a conscious decision to avoid membership in any veteran’s service organization.  I felt that I needed to be totally objective and free from even the appearance of a conflict of interest.  However, I was well aware of the good things service officers were able to accomplish for veterans and their families.  That is why I did not hesitate to extend my service to veterans by joining with the VFW. 

One of the things that has bothered me since coming to work for the VFW is that the general public, when it thinks of veterans service organizations at all, thinks of us as always having our hand out, always asking more and more for veterans.  It is the perception that we are ungrateful beggars that bothers me the most.

We stand here speaking for our nearly 2 million veteran members.  More than that, we, and the others at this table, speak for all veterans who don’t have a working knowledge of the laws found in the US Code or the rules set out in the Code of Federal Regulations.  We are both advocates and lobbyists; we are proud to speak for all those men and women who, through the years, offered up themselves, sometimes at great risk of injury or death, so that you and I have the freedom to speak our minds in this public forum. 

We ask for nothing but that which these men and women deserve to help make them whole from the physical and mental injuries they suffered during their military service.

We come today not with our hands out but with real tangible ideas for improving timeliness of processing claims without harming veterans in the process.  Some of the suggestions offered below were first put forward to the Veterans Disability Benefits Commission in April 2007.  Others arise from the experiences of those who serve veterans, both in and out of government.  These suggestions alone will not have a major impact on the backlog.  However, if presenting them spurs additional ideas, then perhaps they will all, cumulatively, make the improvements necessary to achieve quality decisions within a reasonable time.

Starving regional offices

One of VBA’s current policies is to replace lost staffing in regional offices according to their ability to process claims.  Specifically, the more productive an office is, the more staff they receive.  While this policy may encourage management at an underperforming office in the short run, over time it magnifies the deficiencies at the underperforming office, resulting in disproportionate backlogs and extended delays for the veterans served by that office. 

This policy has existed for at least the last five years.  While VBA attempts to compensate by shifting, or “brokering”, work to other offices, this does not solve the problems at the underperforming offices.  Further, while brokering cases is an excellent temporary measure to deal with workload fluctuations, it has become routine for some offices.  Continuous brokering of work takes on the trappings of a game called “Whack-a-Mole” at the county fair: as soon as you push down workload at one location, it rises dramatically in another.

In our view, the policy of starving certain offices is counterproductive, both for employees and the veterans they serve.  If VBA is unable to provide those offices with the leadership, resources and training to make them productive, then it needs to develop the corporate, institutional and political courage to change the mission of those offices to something other than claims processing.

Rotation of Veteran Service Representatives

The current claims processing system requires the periodic rotation of Veteran Service Representative (VSR’s) from team to team.  While this facilitates personal development and ensures that a cadre of employees exist who have experience in all aspects of claims processing, it means that teams lose their most knowledgeable members at the very moment they become the most effective and productive.  If the current claims processing model is the most efficient, and I am not convinced that it is, then VBA management needs to reexamine this policy and determine how it can be better adjusted to ensure that the needs of veterans, employees and the organization are best met. 

We urge the VA to reexamine the way it staffs its’ Triage Team.  It is our belief that this part of the organization would benefit most from having a stable workforce made up of clerks (similar to the correspondence and development clerks employed by VA in the past) rather than the higher paid and more versatile VSR.  Utilization of more clerks at this level would reduce at least one rotation of VSR’s.

Focus on quality; get it right the first time.

We believe that the greatest benefits can be found by fixing the front end of the claims operation.  Most court decisions today focus on procedural problems stemming from notice to claimants and development, or failures to properly develop evidence.  The VCAA was created because VA would sometimes take shortcuts in the claims development period, failing to give claimants adequate notice of what they needed to produce to prove their claims.  However, as we have seen since its passage, it is quite possible to become bogged down in the notice requirements while attempting to dot every “i” and cross every “t”. 

We support the VCAA because we believe it helps level the playing field for veterans.  The VA has the expert knowledge of what is required in order to grant or increase benefits to veterans.  They are required to pass that knowledge on so that claimants know, too, and can focus their energies in obtaining the necessary evidence to perfect their claim. 

However, this is not rocket science.  If a veteran claims service connection for the residuals of a knee injury, the VA can tell her that she needs to show that she has a disability of the knee now, that she injured the knee in service or something that happened in service caused a knee problem and to provide VA with medical evidence that shows the current problem to be related to the event in service.  These are the same three things that have always been required to prove service connection.

The requirements for obtaining an increase in benefits are equally finite: a claimant must show that their service-connected disability has worsened sufficiently to obtain a higher evaluation.  In order to obtain an increase for that knee problem, the veteran must show the existence of arthritis in the joint which limits motion or pain, or limitation of extension or flexion by certain amounts, or instability in the joint. 

Again, this is not rocket science.  Software can be developed that allows a VSR in a Pre-Determination team to simply answer a question on a computer screen concerning whether the claim is for service-connection or an increase and what the claimed condition is.  Now, as you suspect, the computer can generate paragraph after paragraph explaining what is required and if the veteran is claiming 12 conditions then the letter can become quite long.  However, if the object is to ensure that claimants have the information necessary to perfect their claims then it can be done with properly programmed computers.  Further, these software programs can be made available to claimants in a simple, easily accessed, public website.  Any curious veteran could enter the website, answer a series of simple questions and receive detailed information on what is needed to obtain the benefit.

Veterans Claims Assistance Act

It has been said that a journey of a thousand miles begins with a single step.  In a like fashion, the journey from filing an initial claim to receipt of a final decision by the VA begins with the determination by VA as to whether a “substantially complete claim” has been submitted by a claimant.  Once VA receives a substantially complete claim it is required by law to begin a rigorous ritual of notification and action which are designed to help claimants obtain either sufficient evidence to allow VA to grant their claim or all pertinent evidence which will allow VA to deny the benefits sought. 

Background

The rules governing VA’s duty to assist were spelled out by Congress in the Veterans Claims Assistance Act of 2000 (VCAA).  This law overturned a Court of Appeals for Veterans Claims ruling in Morton v. West, 12 Vet.App. 477 (1999) which held that individuals had to submit a “well grounded” claim before VA was required to help them obtain evidence necessary to prove their claim.  In application, a well grounded claim proved to be harder to achieve than previously required by VA. 

With the VCAA, Congress substantially lowered the evidentiary standard claimants had to meet before VA was required to help them gather evidence.  The Veterans of Foreign Wars (VFW) believes that the VCAA was necessary to restore the status quo ante.  In doing this, Congress spelled out in great detail the actions VA must take to help claimants with their claims.

Following passage of the VCAA, VA diligently (some would say bureaucratically) attempted to comply with both the substance and spirit of the legislation.  In doing so, VA crafted and refined procedures and correspondence designed to comply with the law.  Legal challenges required significant changes and one required VA to send letters to hundreds of thousands of individuals who had claims pending before VA.

These legislative and judicial efforts to ensure that VA does everything possible for claimants to help them develop claims, while well intentioned, has led to a process that is legalistic, fragmented and more intended to make cases appeal proof than it is to adequately inform claimants of the information they need to move forward with their claims.  Review of a single VCAA letter will leave even lawyers shaking their heads in an attempt to understand what it is VA needs to complete processing of a claim.

On the surface, the legal requirements seem simple enough: tell the claimant what evidence is contained in her file; tell her what evidence is needed to complete the claim; tell her that VA will help her obtain certain evidence if she provides the names and addresses of facilities and doctors who provided treatment related to the claim; and tell her that VA will obtain service medical records, pertinent VA health records and any necessary records held by the Federal government. 

What makes this difficult is that individuals often want service connection or higher evaluations for more than one condition.  At a time when the average new claim contains 8 or 9 conditions,

and some as many as 20 or more, spelling out a simple and clear explanation as to how claimants can obtain an earlier decision from VA is difficult.

We believe that this effort, if done properly, will go a long way to taking the confusion out of the VCAA notice letters.  Such clarity will help claimants provide all the evidence needed by VA to decide their claims.

We would suggest, however, that those who have brought us the current stable of lengthy and confusing development letters are likely to be the same people who revise them.  Consequently, we believe that VA should extensively use focus groups to ensure that the new letters are understandable and readable to the average person while complying with the law.

We believe that additional things can be done to allow knowledgeable claimants to move more quickly through the duty to assist morass:

Waiver of the VCAA notice and 60 day waiting period

Currently, VA is required to send a VCAA notice to everyone who has submitted a “reasonably complete” claim.  There are times, however, when knowledgeable claimants, or claimants represented by competent advocates, submit everything necessary for VA to adjudicate their claim.  Under current law and practice, however, VA is required to not only review the claim for completeness but also undertake development as required by law.  The VA does this even if the claimant specifically states, in writing, that the claim is complete, that there is no additional evidence available and requests a waiver of VCAA development.  This creates additional and unneeded work on VA regional office personnel and delays the adjudication of the claim by at least 60 days.

What we propose is that Congress amend the duty to assist provisions of the law to allow a knowledgeable wavier of duty to assist development.  What we envision is a form which requires positive or negative answers to specific questions which, in the end, demonstrates that the claimant knows what the law requires VA to do, what evidence is needed by VA and consciously waives the VCAA notice and 60 day waiting period. 

For example, the waiver form could include questions like:

Have you been treated since service for any of your claimed disabilities? (yes/no) 

If you were treated since service, have you submitted all private medical evidence that shows treatment for your claimed disabilities? (yes/no)

Have you furnished VA with the names, addresses and dates of treatment, if any, of all records held by the Federal government (not just VA) (yes/no)

Do you understand that by requesting this waiver VA will make no further efforts to identify or develop treatment records not currently held by VA? (yes/no)

Do you understand that by requesting this waiver VA will make no further efforts to identify or develop records not currently held by the Federal government? (yes/no)

Do you understand that while you may submit additional evidence while your claim is being processed, your waiver relieves VA of the legal requirement to help you obtain evidence that you tell it about? (yes/no)

While VA would still have to develop those claims where the form was not utilized or not correctly completed, it would still be able to move a significant number of claims to the next level, reducing their workload and hastening the completion of some of its work.

VA would still be responsible for developing government held records and obtaining required physical examinations.  However, the elimination of the 60 day waiting period should prove extremely helpful.

Require VA to encourage ready to rate cases

Many VA regional office service center managers encourage veteran service organizations to bring them “ready to rate” cases.  While this practice works well in some offices, it is rarely utilized in others.  This practice encourages service officers to bring complete and ready to rate claims to a designated person who ensures that routine development is bypassed and claim adjudication is expedited. 

We believe that this practice should be encouraged since it reduces the workload on VA staff and ensures that the backlog is not unnecessarily increased.  We recommend the creation of a nation-wide initiative which formalizes this practice. 

To ensure that this practice actually works, VA should require that regional office personnel, managers and veteran service officers are adequately trained to recognize a properly developed claim and understand that receipt of such a claim triggers actions which ensure prompt adjudication. 

We believe that VA should give no preferential treatment to any case which, upon review, is found not to be ready to rate.  This is necessary to ensure that partially developed cases receive no preferential treatment, thereby slowing completion of claims already in process. 

However, one of the purposes of this program is to educate veteran service officers as to the evidence needed to produce a ready to rate case.  We suggest that VA could do this by offering service officers an opportunity to complete development in a case found not ready to rate by telling them exactly what evidence is missing and giving them 10 working days to produce it. 

The case could be considered ready to rate if the service officer is able to provide the necessary evidence.  Failure to timely complete the claim would simply mean that the case would receive no preference and be worked under current procedures.

Informal claims

An informal claim is any communication from a claimant indicating intent to apply for one or more benefits from VA. (38 CFR 3.155)  If no formal claim has been received, VA writes the claimant and describes what is necessary to submit a substantially complete claim.  The claimant has one year from the date of the VA letter to submit a completed application (e.g., VA Form 21-526).  However, VA establishes no control and takes no further action.  If the requested information is received within the year, the date of receipt of the informal claim becomes the date of claim.  If the information sought is received after the one year period expires, the date of claim is the date of receipt of the additional material.

However, if a formal claim for benefits was previously received by VA, than an informal claim is considered simply a claim for benefits.  (38 CFR 3.155(c); 3.160)  In this case, VA establishes a computer control and begins the development required by the VCAA.

This rule discourages knowledgeable claimants and advocates from submitting complete or ready to rate claims to VA.  Any delay in submitting a claim to reopen or a claim for an increase could negatively effect the date of claim which is the date from which benefits, if granted, are payable. 

What we propose is that Congress change the law to allow the submission of an informal claim for the purpose of establishing an effective date.  Under such a law, knowledgeable claimants and advocates could submit an informal claim at any time.  VA would be required to acknowledge receipt of the claim and the claimant would be told what is necessary to perfect the claim.  In this situation, the claimant would have a year in which to either submit evidence necessary to perfect his/her claim or request the assistance of VA to develop the claim.  In the later situation, VA’s duty to assist would be triggered and it would begin development required by the VCAA.

However, this change allows knowledgeable claimants and advocates to relieve VA of the burden of developing every claim.  To the extent that the claimant or advocate is successful in obtaining evidence, it lessens the workload on VA and hastens the claim through VA once it is received by VA.

This suggestion, if adopted, will not necessarily lessen the amount of time it takes for an individual or advocate to develop the claim and the VA to reach a decision.  However, it encourages certain claimants and advocates to undertake development prior to submitting a claim and to the extent that it reduces the workload on VA personnel it will allow all claims to move more swiftly through the process.

Artificial Intelligence

In our view there is computer programming and “artificial intelligence”.  Nearly everything touted as “artificial intelligence” is really just computer programmers giving answers to a very large number of yes/no questions.  There is, however, ample opportunity to use computers to decide certain evaluations based on established findings.  Evaluations for service connected visual impairment or hearing loss, largely based on loss of visual acuity, fields of vision or decibel loss, could be easily assigned by computers.  We encourage VA to utilize properly programmed computers to apply regulations to discrete data to arrive at concrete evaluations.  This will allow rating specialists more time to work on decisions requiring judgment and experience.

All Electronic Record

Currently the VA has several thousand all electronic claims files primarily located in the Winston-Salem regional office.  These cases are largely Benefits Delivery at Discharge cases.  It is our understanding that VA continues to process a number of these cases. 

These electronic claims files offer VA a unique opportunity to create a separate office to handle all electronic claims.  We suggest creation of a completely separate office, rather than the continued integration of electronic claims processing into the everyday flow of work, because it provides VA with the opportunity to experiment and create an environment unencumbered by paper files.  Imagine if you will, two Rating VSR’s located in separate sections of a building reviewing the claims file and making decisions on different elements of a claim simultaneously.  The efficiencies that such a system creates could be significant.

VA rightfully believes that scanning its millions of existing files would be cost prohibitive.  We agree.  However, VA receives thousands of requests each year for copies of claims files.  Right now, each file is photocopied and sent to the claimant.  What we propose is that each office be equipped with scanners so that, instead of photocopying the file, it is scanned.  The claimant still receives a paper copy of the file.  At the same time, VA also has an electronic record.  We suggest that this electronic file can be transferred to the office handling all electronic files.  VA can experiment with the most appropriate work procedures at this office and, when it has grown sufficiently, a second office can be created. 

Eventually, most claims will be electronic and VA can then begin converting RO’s into public contact offices.

These suggestions, ideas and recommendations will not, in and of themselves, solve the backlog, timeliness and quality issues impacting VA today.  However, if adoption of these and similar proposals each result in some improvement, we believe the cumulative effect will be sufficient to achieve reductions in workload and improvements in quality and service to veterans, their families and survivors. 

We appreciate the opportunity to present our views to you today and we welcome any questions you may have.