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Witness Testimony of Kerry Baker, Disabled American Veterans, Assistant National Legislative Director

Messrs. Chairmen and Members of the Subcommittees:

On behalf of the 1.2 million members of the Disabled American Veterans (DAV), I am honored to appear before you today to discuss document tampering and mishandling within the Veterans Benefits Administration (VBA).  In accordance with our congressional charter, the DAV’s mission is to “advance the interests, and work for the betterment, of all wounded, injured, and disabled American veterans.” 

On August 20, 2008, the VA Office of Inspector General (OIG) initiated an audit of the Veterans Benefits Administration’s (VBA) regional office (RO) mail processing.  The OIG audit team examined mail-handling activities and triage areas in four VAROs.  The team found 36 pieces of active mail and 93 other original documents in the shred bins. 

The type of active documents identified during the audits included: VA Form 21-526, Veteran's Application for Compensation and/or Pension, VA Form 21-686c, Declaration of Status of Dependents, VA Form 21-674, Request for Approval of School Attendance, and documents constituting informal claims.  The other original documents found by the OIG audit team should not have been designated for disposal because of their evidentiary value (e.g., original or certified copies of birth certificates, marriage certificates, DD Forms 214, Certificate of Release or Discharge from Active Duty, and medical evidence). 

Following the OIG’s findings, the Secretary of Veterans Affairs (Secretary) ordered a cessation of all shredding activities in VAROs, effective October 14, 2008, and a search of all shred material on hand in field offices.  The VA reported that the search identified 474 documents requiring action or retention. 

Shortly thereafter, the VA drafted a comprehensive action plan that implemented numerous procedures to eliminate any repeat records mishandling.  The draft plan included the creation of a Records Control Team tasked with reporting to the VA’s Under Secretary all draft revisions to policies and procedures for proper document handling.  Through the action plan, the VA created Records Management Officers (RMOs) and Division Records Management Officers (DRMOs) to oversee proper records handling and ensure compliance with the action plan.

The draft plan requires a two-person review (employee and employee’s supervisor), approval, date, and dual signatures on any documents marked for shredding.  Documents determined inappropriate for shredding are returned to the employee for proper training.  Further, the VA now requires each employee to maintain an individual shredding receptacle.  The RCO must verify and approve every document in each shredding receptacle before shredding.  The sequential steps in the foregoing new procedures are as follows:

  1. Documents will be bundled by claimant name.
  2. Employee will sign, date, and record reason for destruction.
  3. Hand carry documents with claims’ file to supervisor for review and approval.
  4. Supervisor will review, sign, and date documents/envelope, if approved; if not approved, the supervisor will return the records to the employee for additional training.
  5. Documents will be placed in appropriate container.  Each day (or as directed) container will be hand carried to the DRMO.
  6. The DRMO will review documents for appropriateness of destruction and forward those that are appropriate to the RMO.
  7. The RMO will, if appropriate, place the material in the shredding bin. 

The VA’s new document handling procedures contain many other specific instructions, such as those for out-based and work-at-home employees, handling destruction of sensitive material, and handling from non-VBA organizations.  The draft plan also requires regular systematic analyses of operations; enhanced training on proper document handling; and, enhanced management oversight, which includes unannounced site visits. 

Special, but temporary procedures were also put in place concerning VA claimants who asserted they were harmed by improper document handling.  Essentially, the Secretary determined that temporary special claims handling procedures were appropriate.  He therefore relaxed certain administrative claim submission requirements for claimants who assert they submitted a claim or evidence within the 18 months proceeding the date that shredding activities ceased in VA regional offices.  This includes claims or evidence submitted between April 14, 2007, and October 14, 2008. 

These temporary procedures were established to accommodate for any loss of claims’ information or evidence that may have occurred as a result of inappropriate document disposal during this period.  RO personnel were given specific instructions on the use of temporary special claims handling procedures.

Claimants who believe their claim was affected by improper document handling must assert their request for consideration under the temporary special claims handling procedures in response to the records incident within one year from November 17, 2008.  RO personnel will exercise the Secretary’s authority to recognize a claimant or representative’s assertion that a claim and/or supporting evidence had been previously submitted to VA during the 18-month window from April 14, 2007; to October 14, 2008.  The effective date will be established as though the claim was received on the date asserted by the claimant.  Effective dates earlier than April 14, 2007, may be established based upon receipt of credible evidence supporting the earlier date of document submission.  Fortunately, VA officials report that there have been less than 300 claims filed under the relaxed evidentiary standards.

Analysis

The DAV cannot and will not attempt to minimize the severity of this situation.  A snapshot in time was taken of VBA field stations.  That snapshot revealed nearly 500 documents improperly marked for destruction.  Were these shredding bins already emptied for the month, or had this number accumulated over several weeks?  Were any offices tipped off regarding the forthcoming events in order to prepare?  Over the course of a year, and certainly numerous years, even the most conservative answers to these and other questions equal thousands of veterans and their dependents potentially harmed by such unlawful acts. 

A large section of the veteran community and representatives of the community have long felt that VBA operates in such a way that stalls the claims process until frustrated claimants either give up or die.  The DAV is confident in stating that no such attitude exists within any section of VA’s leadership.  Nonetheless, DAV’s reassurance will not change some of the public’s mind concerning this notion, at least with respect to rank and file VA employees, because the unlawful destruction of these and other records has done nothing but reinforce this opinion.     

Whether we are leaders in Congress, leaders in the VA, or leaders in the veteran community, we all fail in those roles if we do nothing more than scrutinize and cast blame rather than working to erase this stain on VA’s reputation.  The challenge before us is not merely how to prevent such actions in the future, but how we recognize the faults in the current system that allowed such actions to take place.  Once we acknowledge and understand the faults, the challenge then is progressively changing the structure of the system to prevent such actions. 

One demand from the collective veteran community is accountability for those guilty of the unauthorized willful destructions of records.  This request does not insinuate that VA’s leaders take this situation lightly.  On the contrary; first, the VA should be commended for its own audit functions having detected the problem in the first place.  Second, the VA’s action plan as described above is unprecedented.  

The action plan implemented by VBA’s leadership indeed exemplifies the magnitude of oversight that its leadership is willing to employ to protect the integrity of important claimant records.  However, in understanding (1) the foundation upon which the claims process is built; (2) the sheer volume of work and labor-intensive nature of the process; and (3) the pressure on VA employees to manage that work, together with the potential impact such deliberate and near systematic actions have on the integrity of the system and the trust of its stakeholders, then it is easy to understand why oversight of this scope is necessary. 

Much of the veteran community nonetheless desires to see more accountability for such acts.  We understand that the VA has taken various steps to punish those guilty of wrongdoing, but we are unaware of those exact steps.  Actions such as reassignments, demotions, even termination, is not, however, our focus.  Our focus is on the lack of accountability built into the law for government employees that commit fraudulent acts against VA beneficiaries.

The law that governs all benefits administered by the VA is contained in title 38 of the United States Code.  Many chapters and sections of law in title 38 deal with punishment such as fines and imprisonment for various fraudulent acts.  For example, chapter 19 contains provisions that punish VA beneficiaries who commit insurance fraud.  Chapter 61 is an entire chapter dedicated to penal and forfeiture provisions, such as those that mandate fines and imprisonment for VA claimants who commit fraud in order to receive benefits.  Chapter 59 even contains provisions specific to “agents and attorneys” who wrongfully withhold benefits from a VA claimant in the course of representation.  Provisions in each of these chapters impose punishment such as fines and/or imprisonment.  Indeed, the VA has punished many veterans, veterans’ representatives, and VA employees in accordance with these provisions. 

History has proven a need for each foregoing section of law.  Ironically, no section of law in title 38 imposes punishment specifically upon VA employees who fraudulently withhold benefits from VA claimants, such as the act of destroying claims and evidence in support of claims.  Without further discussion, the actions we are addressing today unquestionably reveal a need for changes in law that equally punish VA employees who fraudulently withhold benefits as it currently punishes those who fraudulently obtain benefits.  The message must be clear—if you destroy a veteran’s records, whether through malice or desperation, you will go to jail.

The DAV ultimately believes the cause of unlawful records’ destruction is clear.  They are desperate, albeit irresponsible and unlawful, acts of a workforce nearly at its breaking point.  The cause of the breaking point is also clear—the massive claims backlog, including appeals; the increasing number of annual claims received; and the production goals VA places on employees. 

The VA received over 880,000 “rating claims” in Fiscal Year (FY) 2008, over 88,000 more than anticipated in the FY 2008 Budget Submission, and 50,000 more than it received in FY 2007.  This kind of increase in claims’ receipt has held steady since the beginning of the ongoing armed conflicts and shows no immediate sign of slowing.  Likewise, according to VA’s weekly workload report, as of February 14, 2009, there were 667,043 rating and non-rating cases pending in VBA, and 191,043 pending appeals, totaling 858,764 pending cases in VBA.  This is nearly 29,000 more than the same time last year, and over 75,000 more than the year before. 

Our objective in highlighting the above statistics is not to reprimand the VA on claims or appeals backlog, but to highlight the reality of how labor and paper-intensive the claims process has become.  Nearly all of the foregoing statistics represent a claims’ file consisting of a paper record containing hundreds, if not thousands of pages.  While there is no excuse for the deliberate destructions of records, it is entirely conceivable that factors discussed herein provide a basic explanation as to what may have driven some employees to resort to these unlawful acts. 

As clear as we believe an explanation exists for these acts, there exists a solution.  The VA must go paperless.  This has been a goal of Congress and the VA for some time.  The DAV fully understands the monumental nature of such a challenge, but we also believe the VA can meet the challenge with proper support from its stakeholders and from Congress. 

VA has already begun to utilize advanced information technology (IT) solutions in many of its functions.  For example, VA’s Pension Maintenance Centers have been paperless for a number of years.  Recently, VA announced that its Benefits Delivery at Discharge (BDD) program has gone paperless.  Veterans can also use the Veterans Online Application System (VONAPPS) to file a claim via the internet.  In fact, VONAPPS allows veterans to upload evidence in support of the claim and attach it to the online application for benefits; however, it does not yet allow a claimant to check the status of a claim online, which is one of VBA’s ultimate goals.    

Each of these programs are promising; however, they are also minuscule when compared to the remaining bulk of VBA’s paper-locked workload.  The primary challenge therefore is how the VA can transform its current inventory of paper-based claim files into electronic format. 

The DAV believes the one solution that Congress must consider above all else, is to immediately authorize and fund the formation of one, or more if necessary, large-scale imaging centers.  Such facilities should have the sole function of transforming paper records into electronic format to include incoming evidence in support of existing claims.  Rather than utilizing every Regional Office in the Country, a facility with such a function would centralize VA records’ management into a single location where the VA could ensure the integrity of a claimant’s evidence.

The formation of these imaging centers could free VA’s current moderate-sized staff who are tasked with receiving incoming and managing existing paper records.  This sizable reduction in resources required for such tasks would then allow VBA managers to utilize those same resources to assist with claims development and adjudication. 

The idea of transforming the paper-locked records system to an electronic records system is neither novel nor new.  Rather, it has nearly been the centerpiece of all legitimate discussions on improving the claims process.  Denying earned benefits by illegally destroying records should serve as the proverbial wake-up call that signals the urgency of this overdue transformation.

Prior to leaving office, the Honorable James B. Peake, M.D., Secretary of Veterans Affairs, agreed wholeheartedly.  In an October 2008 letter to the United States Senate, Secretary Peake stated the following:

The shredding of documents that affect the benefits of veterans cannot be excused.  As I have testified, we must move rapidly to the paperless processing of claims.  There is no excuse for failing to leverage industry standards and technology in support of our veterans.

While this transformation takes place, the VA should update its basic IT infrastructure in order to accommodate the increase in electronic workload demand.  For example, it would do the VA little good, if any, if 100 percent of its workload was in electronic format but its backbone could only handle one percent at a time. 

The VA would not have to invent the wheel for such an ambitious task—successful examples already exist.  For example, an Electronic Disability (eDIB) was a major Social Security Administration (SSA) initiative to automate and improve its disability claims process.  Under eDIB, an electronic claims folder was created for individuals applying for Disability Insurance benefits. 

Before the implementation of eDIB, the disability claims process involved gathering paper evidence and assembling the documents into a paper-based disability claims folder, exactly like VA’s process.  The paper folder was then mailed to the SSA components responsible for processing the claim. 

Using eDIB, SSA captures disability evidence electronically and stores it in an electronic claims folder.  The electronic folder can be easily and instantly accessed by all components involved in processing a disability claim, thereby eliminating the delay involved with mailing paper folders between components.

Under eDIB, any paper medical and non-medical evidence received to support a disability decision is converted to a digital image.  To aid in this process, in August 2005, SSA entered into a 5-year Blanket Purchase Agreement (BPA) with Lockheed for nationwide scanning services.  Under the BPA, Lockheed scans paper documents, creates digital images, and securely transmits the images to SSA.  Lockheed also stores and destroys the imaged paper documents and protects the confidentiality of both the electronic images and the paper documents in its custody.  The cost of the scanning service over the 5-year period was estimated at about $124 million. 

The SSA contract with Lockheed is only one example of success in transforming large paper-based systems to electronic format.  There are many others of varying scale.  The required technology is more cost effective now than ever.  Therefore, the VA could likely reduce costs further by managing such a task internally.  Nonetheless, initial contractual agreements are an option at the government’s disposal. 

Conclusion

The laws that guarantee benefits to the Nation’s service-connected disabled veterans instantly reveal to anyone willing to undertake the challenge of understanding those laws, the true magnitude of the Nation’s gratitude paid to those who have born the battle.  The VA’s entire body of law is written with the veteran and his or her dependents in proper focus.  The law is non-adversarial, pro-claimant, and veteran-friendly—this is not now, nor should it ever be in dispute.  Simply put, Congress wrote the existing law in an honorable manner, equaled only by the honorable service disabled veterans provided to this great country. 

It should therefore be understood that when addressing the claims process; the appeals process; the case backlog; or like today, these unfortunate records-shredding incidents, we are highlighting problems in VA’s people- and administrative-processes, some of which require retooling from the foundation, such as transforming paper records to electronic records.  Some require significant strengthening, such as enhanced VBA training and accountability.  Others only require minor adjustments.  None of these changes, however, require modifying the sacred structure of laws that actually provide the benefits for which veterans have fought for decades. 

Nonetheless, these acts undermine the very foundation upon which benefits law is structured—its overwhelming fairness.  Reasonable minds can always disagree on complex matters, but destroying records equates to a matter of simplicity.  It turns a fair process into an obstacle impossible to overcome.  For this reason, our recommendation should be considered one of VBA’s highest priorities and implemented immediately.

It has been an honor to testify today before your Subcommittees.