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Witness Testimony of R. Michael Suter, Veterans Affairs and Rehabilitation Commission, Chairman, American Legion, Department of New York

Mr. Chairman and Members of the Subcommittee:

Thank you for this opportunity to present The American Legion, Department of New York’s views on The Personal Cost Of The Claims Backlog. The American Legion, Department of New York commends the Subcommittee for holding this Field Hearing to better understand the impact the Department of Veterans Affairs (VA) claims backlog has on New York State veterans, not unlike other states in this great nation, but also to put an individual face and a name to the numbers and percentages normally discussed.

As more troops return from the war, brain injuries are a growing burden - for the veteran, for the few programs to treat them, and for taxpayers who pay for their disabilities and care. These American Patriots have gone off to war to defend and protect our way of life such as the freedom to speak at this hearing.  They have lost body parts, eyesight, incurred brain damage, and, of course bear the stigma of post traumatic stress disorder (PTSD). Doctors are finally realizing the fact that traumatic brain injuries (TBI) are masking or overlapping the PTSD symptoms and must be treated together.

Our estimate, when you add all disability compensation and pension dollars received by disabled veterans here in New York, would average out to be around $1,039 per veteran per month. Based on that estimate, each veteran waiting and waiting and waiting for a decision on his or her claim is loosing roughly that same dollar amount monthly. These veterans will eventually get their disability compensation retroactive back to their date of claim, however, in the mean time, their bank will not defer the house mortgage or car payment, the grocer won’t give them credit until they receive their compensation just because the federal government takes 6 months, 12 months, 1½ years or 2 years or even longer to adjudicate and award their claim.

Currently The American Legion, Department of New York holds a Power of Attorney (POA) on 22,386 compensation and pension claims. The following is a breakdown of the claims status:

  • Buffalo VARO – Claims pending, 1,751; claims adjudicated, 11,042
  • New York VARO – Claims Pending, 1,450; claims adjudicated, 8,143

The following data reflects a breakdown of adjudicated claims with American Legion POA by the disability ratings:

Disability Ratings

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

IU

Total

Buffalo VARO

48

2,742

1,836

1,428

1,334

712

614

319

164

57

873

1,115

11,042

New York VARO

32

1,884

1,090

1,074

803

608

493

295

176

64

891

733

8,143

The VA is in the process of establishing centralized Virtual Information Centers (VIC) to answer the public contact phone inquires. They are also in the process of consolidating the processing of all new and reopened non-service connected pension and death pension claims to centralized Pension Maintenance Centers.

There are three Pension Maintenance Centers; Philadelphia, Milwaukee, and St. Paul. They have been permitted to hire a significantly higher number of employees (50–100) to increase their staff with the anticipation of consolidating pension claims at these centers. This restricts the number of new hires for the Regional Offices that are in need of increased staffing to reduce their claims backlog and maintain an experienced staff to meet the claim needs of veterans their survivors and dependents.

There are 700 rating claims from the New York Regional Office (NYRO) being brokered out to other RO’s for ratings in October. Approximately 1,100 pension claims (190 death pension) have been brokered out from the NYRO to the Pension Maintenance Center at the Philadelphia Regional Office.

There was a hiring freeze implemented at the New York Regional Office from 2001 until January 2006. During FY 2006, 42 employees (24% of the staff) left the NYRO and 27 employees were hired. Staffing and experience continues to be a major concern at the NYRO. Approximately 60% of the Veterans Service Center staff has less then 2 years experience.

The number of employees in the veteran’s benefits and service section of the RO was approximately 130 in April 2007. This is the section that handles the claims’ process. The NYRO FTE ceiling is approximately 170. An increase of 40-50 additional employees in the immediate future would set in to motion what we believe is needed to reduce the claims backlog and maintain it at a workable level. It will take new employees six months to two years to obtain the job knowledge and expertise to become proficient in all expects of their job responsibilities. However, progress should be seen within the first 6 to 9 months after their initial training is completed. Therefore, it would be beneficial to have staffing increases at the Regional Offices that need additional personnel the most due to hiring freezes and heavy claim volume. Increased staffing will result in the more timely placing of veterans and survivors claims under control (mail), reduced time in the claim development process (gathering evidence, exams, etc), having claims ready to rate and the experienced personnel needed to process the ratings, and enough staff to promptly process the awards which is the final step in the claims process.

The claims backlog personally affects veterans and their families by delaying their monetary award and a better quality of life. After returning from serving their country many veterans find it difficult to find or maintain employment and some are at risk for becoming homeless. The claims process for many veterans is stressful and difficult to understand. They are unsure and confused between the Department of Defense (DOD) and VA. 

The claims backlog also personally affects the veteran’s entitlement to additional benefits. Completion of the awards process in many instances results in providing additional entitlements to veterans and their dependents, such as:

  • Free healthcare for veterans receiving care for service connected disabilities
  • Veterans with service connected disabilities rated 50% or higher receive free healthcare
  • Vocational Rehabilitation: technical training, education, assistance in job training and placement
  • VA life insurance: eligibility for veterans who are service connected
  • Specially adaptive housing
  • Automobile grants
  • Disabled veterans are entitled to 10 points preference for civil service jobs
  • Additional allowances for dependents when the veteran’s award is 30% or higher
  • ChampVA medical coverage for dependents of veteran’s who are 100% totally and permanently disabled
  • Real Estate Tax Exemption eligibility in many states

Better outreach to our service men and women is monumental in helping them to understand the claims process, the difference between DOD and VA and how and where to obtain the evidence they need. For today’s newest veterans this should be done on their return from being deployed.

Heroes to Hometown. An American Legion program designed to reach out to severely disabled soldiers and their families as they transition from military service to their civilian community. Through the American Legion representative at the Military Severely Injured Center located in the Pentagon, severely injured service members can request transition assistance from the American Legion after leaving service. The American Legion has been involved in the Heroes to Hometown program since Past National Commander Bock signed a Memorandum of Understanding (MOU) with the DOD in July 2006.

On March 6th 2007 The American Legion signed an MOU with Walter Reed Army Medical Center that will significantly alleviate the long backlogs in out-processing wounded service members. The American Legion provides a representative to the Physical Evaluation Board at Walter Reed to assist in the transition of wounded service members from the Department of Defense to the Department of Veterans Affairs. This is a natural extension of our Heroes to Hometown program.

Examples of the impact the claims backlog have around New York.

In Clinton County a nursing home pension case for a Widow of a WWII Veteran was filed on September 30, 2003. The claim was lost and had to be resubmitted to the VARO on August 13, 2004. The claim was lost again and had to be to be resubmitted to the VARO April 8, 2005 and a request to reopen the claim was faxed to the VARO on November 20, 2006. During a conversation with the VARO on September 27, 2007 it was determined that the claim had been retired with no action taken by the VA. At no time was this claim adjudicated and the widow was never notified of this action. The VARO is reopening the claim. This WWII widow has waited over four years with no result.  The impact this non-decision has had on this widow is unforgivable. She can’t afford any outside activities, in fact after paying for a telephone and a television she can’t even afford a snack to take to her room. Fifty dollars ($50.00) a month doesn’t go very far.

In Nassau County an eighty (80) year old WWII veteran is being treated for PTSD. In February 2006 he filed an increase for his service connected hearing loss and provided private medical evidence. This veteran also suffers from several non-service connected conditions After 18 months the VARO is still "working on his case."  An increase could possibly eliminate his VA prescription co-payments this veteran must currently pay. 

In another case, a surviving widow, who lost her home in New Orleans, due to Hurricane Katrina, traveled to New York and moved in with her son on Long Island.  It soon became apparent that she could not be left alone and she needed some one to care for her all day while her son was at work.  The son found an assisted living facility near by and began using up the widow’s savings to provide her with a safe place to live where some one was always around to help.  After 14 months the widow’s savings were exhausted and the VA determined the widow was eligible for death pension with aide and attendance (A/A). VA then decided the widow was incompetent. Now the widow will face an additional delay (in months) while the VA decides whom to appoint as her Fiduciary.

Carl E. Munson of Yonkers filed to reopen his Pension Claim on February 15, 2006, to switch his fixed 306 pension to the Improved Pension. All required paper work was provided at that time. On December 2006 Carl received a letter from Philadelphia RO stating he was on the fixed 306 Pension. It only took 10 months for the VA to agree with Mr. Munson that he was currently on a 306 Pension. Again in February 2007, Mr. Munson resubmitted his request to be switched to the Improved Pension. He called the VARO on August 14, 2007 to see if anything was happening with his claim and was told claim should be decided soon. As of today, Carl Munson still has heard nothing.

Nursing Home pension claims submitted to the VARO ready to rate are taking in excess of 5 months to award.  Pension for veterans or surviving spouses in assisted living facilities are taking a minimum of 12 months to award.

Another Yonkers resident and Gulf War One veteran first entered the military in August 1988 and stayed until August 1991. He remained a full time Reservists from August 1991 until February 1994 when he went back on active duty until September 1996. He was deployed to the Gulf War from August 1990 until May 1991. He suffered symptoms of a heart attack in May 1991 in the Gulf War and was hospitalized on board a Naval Hospital Ship, USS Mercy, for approximately one month. He was first diagnosed with Cushing’s disease in 1994. He originally filed a claim in late 1996, shortly after his discharge.

Since then, he has had multiple doctors evaluate him, multiple tests run and rerun and still has not been provided a clear diagnosis.  Different doctors have said he has Cushing’s disease and others have said fibromyalgia, while others have said muscle deterioration from an unknown etiology. He currently has muscle weakness in all four extremities, tenderness, extremely persistent aching pains, and is easily fatigued after only brief ambulation.  He has persistent hyperglycemia and his CPK is elevated. During May 15 and 16, 2006 he underwent a study at the VA War-Related Illness and Injury Study Center in New Jersey.  The Study Center found the following: probable carinoid syndrome, sleep disturbance, left shoulder pain, rash, mood problems, anxiety disorder, NOS and adjustment disorder to include depression, chronic pain, chronic fatigue, elevated blood sugar, elevated liver function test, and poor functional physical basis due to the multiple disabilities.

This veteran has three small children and a wife.  Due to his inability to work because of his disabilities, he has been evicted from his apartment, been separated from his wife for several months, and has lost nearly everything else.  Although he has tried to work, he has not been able to continue due to his numerous disabilities from service. When he applied originally in 1996, less than a year after service, his disabilities included hearing loss, chest wall pain (claimed as a heart condition), right knee and leg cramps, migraine headaches, depression with memory loss, sinus condition, thyroid condition, asthma/hay fever, and skin condition.  All were denied.  He was told to apply for each individual medical problem versus Gulf War Syndrome. Now almost 11 years later, his claim is still under appeal.

Spencer P. Kennedy from Steuben County is a 60 year old US Navy Veteran who was injured in 1966 when he sustained a compression fracture and dislocation of his spine. He underwent a surgical procedure to fuse this injury by removing bone from his left hip and placing it in the vertebrae. He was honorably discharged in 1971 after being on medical retirement for five years and appearing before a Navy Medical Board. He was rated at 40% disabled and then rated the same at the VA.

At about age 50, he began to experience chronic pain, mobility problems and limitation of movement to the degree that he sought help at VA. Doctors prescribed pain medications and continued to address his situation. In 2003 he began having more severe pain and mobility problems and was referred to an Orthopedic Surgeon, who ordered an MRI and X-Rays.  The doctor determined that he was not a candidate for surgery and recommended pain management as an alternative.  In 2005 and 2006, the same Orthopedic Surgeon rendered the same conclusions based on MRI's conducted by the VA that there is severe post-traumatic degenerative arthritis present in his lower and upper spine. Treatment letters were included in the VA file. Mr. Kennedy’s pain and limitation of movement continued getting worse and the pain medications have had to be adjusted several times. 

In March of 2006 Spencer filed a claim for increased compensation due to his back condition. All pertinent medical records from non-VA doctors were sent to the VA to be included in his Claims file for review by claims examiners at the VARO. He also sent the RO a number of personal statements and letters from friends and medical professionals supporting his claim for an increase in compensation for the back disability.

In May of 2006, while exiting his vehicle, his legs gave out and he experienced severe pain, falling to the ground. During the next seven months, he fell under similar circumstances 6 more times as the numbness began to return to his legs and knees.  He now must use a cane for stability purposes.

Mr. Kennedy waited six months before he was scheduled for a Compensation & Pension (C&P) examination on September 20, 2006.  His C-file, which contained medical & lay statements concerning his back disability, was not provided to the C&P examining physician.  A Notice of Disagreement (NOD) was filed concerning the results of the C&P examination on November 30, 2006.

In January of 2007, another C&P Exam was requested which took 8 months (August 31, 2007) to schedule. He is scheduled for an informal hearing at the VARO on October 11, 2007 to discuss his claim. “In all of this, I feel as though those persons making the decisions related to my claim are not reading or placing any weight on all of the evidence that has been provided,” Mr. Kennedy has stated, “I feel as though the VA is dragging its feet and if they wanted to, they could adjudicate my claim.” Mr. Kennedy honestly believes he has proven that he has serious pain, mobility and mental issues that VA could take into consideration. He is totally frustrated by this lack of adjudication.  “I am frightened that I will soon become completely incapacitated and will loose everything.  I am loosing control slowly and continue to have more and more pain and am in serious financial difficulty. This whole thing has impacted my life tremendously in a negative way. The VA has the information and all the evidence necessary. All they (VA) need to do now is to READ the damn file and make a decision.”  In August of 2006, Spencer was forced to stop working, as he was unable to walk long distances, lift more than 10 pounds, or stand for long periods of time.  He has used up all his credit and equity and personal savings to pay his bills.  He is unemployable as no company wants to hire someone with a severe back problem. 

Addressing Congress for a final time before stepping down last week VA Secretary Nicholson pointed to persistent problems between the Pentagon and VA in coordinating care for veterans while struggling to reduce backlogs in disability claims from Iraqi war veterans. “Current efforts won't be enough to cut down the wait times our veterans are being required to endure,” Nicholson said, ''In fact, VA can influence the output -- claims decided -- of its work product, but it cannot control the input -- claims filed.''

Unlike most all of the failed challenges of the past, this is one challenge we can correct. We must remember the promises made many years ago to “care for those who shall have borne the battle and for his widow and orphans” as President Abraham Lincoln proclaimed. We are still paying for WWII and every war/conflict this nation has gone through since. Don’t continue to budget next year what should have already been paid pre-2007.

Conclusion:

The best way to help veterans is to fix the entire VA claims adjudication system.  Piecemeal solutions do not work and should be avoided.  The VA work measurement system should be changed so that VA regional offices are rewarded for good work and suffer a penalty when consistent bad decisions are made.  Managers, attorneys, and law judges at the Board of Veteran Appeals should be rewarded for prompt careful work and should be penalized when they make bad decisions.  American Veterans who seek VA disability benefits deserve better treatment than what they currently receive from the VA.

Thank you again, Mr. Chairman, for allowing The American Legion, Department of New York to present comments on these important matters.  As always, we welcome the opportunity to work closely with you and your colleagues to reach solutions to the problems discussed here today that are in the best interest of America’s Veterans and their families.