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Witness Testimony of Mr. Paul Sullivan, Managing Director for Public Affairs and Veteran Outreach Bergmann and Moore, LLC

The National Organization of Veterans' Advocates (NOVA) thanks Chairman Jeff Miller and Ranking Member Bob Filner for the opportunity to testify about the disability claim process at the Department of Veterans Affairs (VA).   NOVA is honored to share our views for this hearing, “From the Inside Out: A Look at Claims Representatives’ Role in the Disability Claims Process.”

NOVA is a not‑for‑profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993.  NOVA represents more than 500 attorneys and agents assisting tens of thousands of our nation's military Veterans, their widows, and their families obtain VA benefits.  This statement was reviewed and approved by NOVA’s Board of Directors.  I testify today as an employee of Bergmann & Moore, LLC, a Bethesda, Maryland law firm representing Veterans’ whose disability claims were denied before VA and the U. S. Court of Appeals for Veterans Claims (CAVC).   Partners Glenn Bergmann and Joe Moore are both NOVA members, and Joe Moore also serves on NOVA’s Board of Directors.  Glenn Bergmann, Joe Moore, and I all previously worked for VA.

NOVA members represent Veterans before all levels of VA’s disability claim process.  This includes the Veterans Benefits Administration (VBA), the Board of Veterans’ Appeals (BVA, or “Board”), the CAVC, and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).  In 2000, the CAVC recognized NOVA's work on behalf of Veterans when the CAVC awarded the Hart T. Mankin Distinguished Service Award to NOVA in 2000. 

Our main goal for this hearing is to continue our strong working relationship with Congress and VA so our Veterans receive timely and accurate disability compensation claim decisions from VA.  Receipt of timely benefits remains vital for the Veteran’s economic security as well as opening the door to free VA medical care.  NOVA believes  the “Veterans’ Choice of Representation Act,” part of the ‘‘Veterans Benefits, Health Care, and Information Technology Act of 2006” (Public Law 109-461) works as intended.  The 2006 law eliminated the prohibition on the charging of fees for services of an attorney or agent provided before the Board of Veterans’ Appeals makes its first final decision in a Veteran’s case. 

NOVA’s Training Seminars for Attorneys and Non-Attorney Agents

At NOVA, our primary purpose is providing quality training to attorneys and non‑attorney practitioners who represent Veterans, surviving spouses, and dependents.  NOVA offers four types of training. 

Our primary type of training is our seminars held twice each year.  These events are attended by hundreds of attorneys and non-attorney agents.  Our seminars include presentations by leading practitioners and experts about VA’s disability claim process.  

Guest speakers at NOVA training seminars often include academics as well as top VA and CAVC leaders.  Our seminars provide Continuing Legal Education (CLE) credits for attorneys.  NOVA membership requires completion of our seminars every two years.

A second type of training is NOVA’s “Beginner's Guide to Veterans Law.”  These DVDs are essential for those just beginning a Veteran disability claim law practice.  Last year, NOVA began offering our third type of training feature, NOVA webinars, where attorneys and agents can learn about Veteran law via the internet and receive CLE.

And, finally, NOVA members are able to access a heavily used private on-line bulletin board to ask questions of more experienced attorneys, share practice tips, and keep updated on new case law and VA regulations.

NOVA Interaction with Veterans

When Veterans contact NOVA for assistance, NOVA’s interaction remains limited to providing referrals to our NOVA members listed on our web site.  Each of our NOVA members operates independently, so there are different procedures regarding intake, screening, and acceptance of cases.  Because of their legal training, experience, and focus on Veteran law, after a review of the Veterans’ claim file, NOVA attorneys know when Veterans’ claims have merit.

As trained litigators, NOVA members assist Veterans by obtaining vital military service records, military medical records, and independent medical opinions regarding Veterans’ medical conditions.  In cases where veterans have significant impairment, such as mental health conditions and brain injury, these attorney-provided services are essential in order to win the Veteran’s claim.  In many instances, NOVA members’ representation of Veterans results in significant changes in the case law which improves the likelihood future veterans will receive appropriate, prompt, and full disability compensation.

The Current System’s Challenges

NOVA appreciates the significant, recent, and bi-partisan increases in appropriations for VA as well as consistent Congressional oversight of VA activities.  While VA continues improving in many areas, several other areas urgently need the attention of Congress.  The area in most need of immediate improvement is VA’s overwhelmed and beleaguered disability claim processing system.

The areas of greatest concern for NOVA are VBA’s inability to provide prompt and full access to records and VBA’s unconscionably long delays in claim processing.  Our testimony provides several recommendations to overcome these obstacles interfering with our ability to properly represent Veterans.

VBA’s delays are legendary and worsening.  At the Regional Office level, Veterans wait an average of more than seven months for a decision.  As of April 16, 2012, more than 903,000 Veterans’ and beneficiaries’ claims languish at VBA.  At the Board of Veterans’ Appeals, more than 256,000 disability claims remain mired, waiting an average of an additional four more years for a decision.  In total, VA’s disability claim backlog exceeds 1.1 million.  In addition, more than four thousand cases remain on the U.S. Court of Appeals for Veterans Claims docket.  When VA focuses attention on expediting new claims, VA exacerbates the already bad situation by increasing the error rate, leading to even more appeals and even longer delays.  VBA appears to be grinding to a halt.

Last Sunday, The New York Times reported the Oakland VA Regional Office takes an unconscionable 313 days to process a new claim (“Paperwork Buries Veterans’ Disability Claims,” Aaron Glantz, April 15, 2012).  That’s more than ten months.   A few years ago, VA was averaging five months.  These significant VA delays seriously harm our Veterans who need access to VA healthcare and who need disability benefits to pay rent, put food on the table, and pay other important expenses.

During testimony before the Senate Veterans’ Affairs Committee on February 29, 2012, VA Secretary Eric Shinseki stated VA has seen a 48 percent increase in claims filed since 2008.  He expects the claim volume to increase by another 4 percent in 2013 to 1.25 million claims.  This means an already bad situation continues deteriorating.  This is unacceptable for our Veterans.

In response to these disturbing statistics, and the significant impact delays and errors have on our Veterans’ health and economic stability, VA sought out, and Congress wisely funded information technology (IT) programs to handle the tidal wave of more than one million claims flooding into VBA each year.  NOVA applauds these moves to bring VBA into the 21st Century.

First Set of NOVA Recommendations: Access to Information

NOVA urges Congress to enact legislation to improve and expedite the access by attorneys and agents accredited by VA to information about their Veteran clients.  This is absolutely vital in order to protect the Constitutional rights of our Veterans.

1.      Access to Veterans’ Electronic VA Records by Private Practitioners

VBA’s proposed e-Benefits system, also known as the Veterans Benefits Management System (VBMS), does not contain a component absolutely vital to our nation’s Veterans and beneficiaries: full and immediate access to Veteran’s claim records by their attorney or agent.  This is the top complaint of NOVA members who work with Veterans every day.  The lack of access undermines our Veterans’ due process rights and property rights.  See Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) (ruling that applicants for VBA benefits have a constitutionally protected property interest in their entitlement to those benefits). 

NOVA urges Congress to mandate that VA promptly provide advocates full access to paper and electronic claim records.  What NOVA seeks is a “read only” secure access to Veterans’ records via the internet.  Such a system is already in place at the Social Security Administration (SSA).  SSA uses the “Appointed Representative Suite of Services” (ARSS) computer system.  Information about legal representation is promptly entered into a beneficiary’s records, and attorneys are provided with full and immediate access to SSA records on-line.  SSA’s ARSS system should serve as a model for VA to adopt in its new IT system that also preserves and protects Veterans’ rights.  In simple terms, if ARSS meets the standards for Health Insurance Portability and Accountability Act of 1996 (HIPAA; Public Law 104-191, 1996), then Congress should mandate a similar system for VA.

2.      Improving Access to VBA Points of Contact for Private Practitioners

Under current VA rules (M21-1MR, Part I, Chapter 3, Section C, 14, “General Information on Fees”), VA’s Attorney Fee Coordinators (AFC) at VBA Regional Offices serve as liaisons with attorneys and agents, many of whom are NOVA members.  In most cases, AFCs are cooperative and helpful to NOVA members, providing prompt and accurate status updates on Veterans’ claims.  This is important because NOVA members representing Veterans are not co-located inside the VA Regional Office and do not have physical access to VBA staff, VBA computer systems, or VBA paper records.  Our contact is limited to e-mails, FAX, and telephone, which is severely restricted by VA.  Private practitioners currently have no assured access to VA claims processers, and long delays often result in cases where VA communicates with veteran advocates only via the U.S. Postal Service.

However, there are harmful exceptions, where some AFCs are directed by their supervisors to refuse to provide attorneys and agents with critical information.  The lack of accurate and timely information about the status of a Veteran’s case significantly interferes with the ability of NOVA members to properly represent their clients.  In many instances, AFCs provided inaccurate information or referred NOVA members to VBA’s 1-800 phone number.  NOVA understands AFCs often have several other job functions and lack the time and training to properly and promptly assist attorneys and agents.  However, when an AFC does not provide information or provides incorrect or incomplete information, VA’s actions further delay veterans’ claims.

NOVA urges Congress and VA to make it clear, through law or regulation, that AFCs are to assist accredited attorneys and agents by providing accurate and prompt status information on Veterans’ claims.  We believe the duties of AFCs should be limited to the role of assisting accredited attorneys and agents in all but the smallest Regional Offices.

3.      Entering Information Sent to VA in a Correct and Timely Manner

Most large Veteran Service Organizations (VSO) staff are co-located inside VA Regional Offices.  They often hand-deliver critical and time sensitive documents such as notices of disagreement and substantive appeals, and thus are able to ensure VA’s databases are correctly updated and documents are associated with the Veterans’ paper claims folder. 

In contrast, NOVA members are not co-located at VA Regional Offices.  Therefore, NOVA members usually fax or mail POA and NOD forms to VA Regional Offices.   

Unfortunately, it is the widespread experience of NOVA members that, depending on the individual Regional Office, documents need to be resent because VA lost them – or did not update the system correctly when they were received so no one knows they are in the claims folder – anywhere from 25 to 75 percent of the time.  This is especially critical since the mishandling of timely documents such as an appeal can potentially cause further delay of a Veteran’s case.

NOVA urges Congress to mandate that VA upgrade the training provided to mailroom employees, including offering incentives encouraging VA’s mailroom staff to complete their jobs correctly the first time.

4.      Decreasing Blocked Calls and Incorrect Information Given by VA

Calling VA’s Toll-Free “Inquiry Routing and Information System” (IRIS), 800-827-1000, too often results in incomplete or incorrect information.  As described above, many AFCs refer attorneys and agents to IRIS.   The results are dismal, and in need of urgent correction.  According to VA’s Office of the Inspector General (OIG):

In [Fiscal Year] 2009, individuals reached an agent 76 percent of the time.  Of those reaching an agent, agents answered 72 percent of their questions correctly.  When we combined VBA’s reported data on access and accuracy, we concluded that any one call placed by a unique caller had a 49 percent chance of reaching an agent and getting the correct information.

Even worse, VA employees appear hesitant to answer indirect questions, defined by OIG as questions “that are not asked directly but are relevant to providing a complete answer” (emphasis added).  In those cases, VA staff only answered 60 percent of indirect questions accurately.  This issue remains a chronic challenge for VA.  For eight years, Veterans and their advocates remain unable to obtain correct answers from VA. 

Knight Ridder Newspapers reported on an internal VA report from 2004 (“VA Help Lines Found to Regularly Provide Wrong Information,” Chris Adams, December 30, 2005):

According to an internal VA memo on the mystery-caller program that’s buried deep in the department’s Web site, 22 percent of the answers the callers got were “completely incorrect,” 23 percent were “minimally correct” and 20 percent were “partially correct.”  Nineteen percent of the answers were “completely correct,” and 16 percent were “mostly correct.”

Veterans, attorneys, and agents deserve correct and complete answers.  NOVA recommends that VA improve training and oversight with two goals in mind.  First, VA needs to end the 24 percent of calls from Veterans to VA that are blocked.  VA needs to increase the accuracy of both direct and indirect answers provided to veterans to well above 90 percent. 

Second Set of NOVA Recommendations: End Delays in Adjudicating Appeals

In order to please Congress, VA has previously placed an emphasis on adjudicating original claims as quickly as possible.  Although we applaud Congressional attention to this matter and the noticeable results in claim processing, these numbers have come at a steep cost.  That cost is in the area of Veterans’ appeals.  Just to give an example of the chronic understaffing in this area, our firm heard from multiple Regional Offices that its appeals consist of more than 3,000 cases and are growing by the day.  However, the ROs have only two or three Decision Review Officers (DRO) working on appeals.  At those offices, we were told the wait for a Statement of the Case (SOC) to be issued following the submission of a Notice of Disagreement is “at least 1100 days.”

Although a wait of more than three years is, by itself, inexcusable, what makes this wait worse is that Veterans’ claims do not even get in line for a BVA decision until an SOC has been issued and the Veteran has filed a Substantive Appeal.  BVA is currently working on cases with 2010 docket numbers.  In practical terms, this means a Veteran who already waited three years for VA to issue a SOC, who then submits a Substantive Appeal, must wait an additional two years before BVA reviews the case.

The final insult in all of this is that BVA is forced to remand many cases back to Regional Offices.  (If the Veteran is not represented by a private practitioner, the Veteran’s case is sent to the Appeals Management Center.)  In theory, a Regional Office is supposed to provide “expedited” treatment to the Veteran’s case.  However, in practice, the Veteran’s claim goes to the back of the line and waits once again with the rest of the appeals.  Chronic VA delay in processing Veterans’ appeals harms our Veterans by denying them access to medical care and economic security.   NOVA supports VBA’s goals and intents of hiring more DROs, as they remain the most efficient way to fix the multiple errors found in the majority of rating decision issues.

NOVA supports hiring more DROs to meet the increasing number of appeals handled at VA’s Regional Offices.  DROs should also be used for their intended purpose.  However, DROs were recently tasked with handling hundreds of thousands of Vietnam War Veterans’ disability claims for medical conditions associated with exposure to Agent Orange (Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160).  We understand nearly all Nehmer cases are resolved, and this should allow DROs to return to their original function.  Unfortunately, most DROs are returning to enormous backlogs and heightened pressure to adjudicate cases quickly, without regard to accuracy.

Conclusion

NOVA supports funding for VA initiatives to computerize VA’s obsolete claims processing systems.  NOVA believes our reasonable and practical recommendations to VA’s initiatives, especially greater and faster access to Veterans’ records and an end to VA’s systemic delays, will result in our Veterans receiving more timely and accurate decisions from VA.   NOVA offers to work with the Committee and VA to implement our recommendations.

Biography

Paul Sullivan, Managing Director

Public Affairs & Veteran Outreach

Bergmann & Moore, LLC

Bethesda, Maryland

Paul Sullivan serves as the Managing Director for Public Affairs & Veteran Outreach at Bergmann & Moore, LLC, one of the Nation’s largest law firms dedicated solely to the representation of Veterans whose disability claims were denied by VA, both before VA and CAVC.

In 1990 and 1991, Paul served as a Cavalry Scout with the Army's 1st Armored Division during the invasion of Iraq and Kuwait in the Gulf War.   Between 1995 and 2000, Paul worked for the National Gulf War Resource Center in Washington, DC, where he led the national effort to pass the “Persian Gulf Veterans Act of 1998,” a law significantly expanding healthcare, disability benefits, and scientific research for 250,000 ill Gulf War Veterans.

From 2000 to 2006, Paul worked as a Lead Program Analyst at the Veterans Benefits Administration.  He produced statistical and analytical reports about the Veterans’ disability claim activity.

From 2006 to 2011, Paul worked as the Executive Director at Veterans for Common Sense.  Paul worked at NOVA from 2011 to 2012.  Paul's advocacy for fellow war Veterans is cited in more than 10 books about war and Veterans.  Paul is a Life Member of both the Veterans of Foreign Wars and the Disabled American Veterans.