MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

Thank you for the opportunity to present the views of the National Organization of Veterans Advocates’, Inc. (“NOVA”) on the issues surrounding the VA’s disability claims process at the Regional Office level, including what measures can be taken to improve its effectiveness in lessening the 600,000 plus claims backlog, and solutions for improving the VA claims process system in general.

NOVA is a not-for-profit § 501(c)(6) educational organization incorporated in 1993.  Its primary purpose and mission is dedicated to train and assist attorneys and non-attorney practitioners who represent veterans, surviving spouses, and dependents before the Department of Veterans Affairs (“VA”), the Court of Appeals for Veterans Claims (“CAVC”), the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), and on remand before the VA.  NOVA has written many amicus briefs on behalf of claimants before the CAVC and the Federal Circuit. The CAVC recognized NOVA’s work on behalf of veterans when it awarded the Hart T. Mankin Distinguished Service Award to NOVA in 2000.  The positions stated in this testimony have been approved by NOVA’s Board of Directors and represent the shared experiences of NOVA’s members as well as my own fifteen-year experience representing claimants at all stages of the veteran’s benefits system from the VA Regional Offices to the Board of Veterans Appeals to the CAVC as well as before the Federal Circuit. 

OBSERVATIONS

Throughout 2007, top VA officials such as former Secretary James Nicholson and Daniel Cooper, VA’s Veterans Benefits Administration Director, informed Congress about the backlog and excessive delays veterans are facing when filing a claim for VA benefits. Unfortunately, it is NOVA’s conclusion that 2008 has brought little to no change in the following six major problem areas causing or contributing to the VA’s inability to process a veteran’s claim in a timely fashion.  All of these problems require immediate attention and action in order for our nation’s veterans to see any real improvement in a system upon which they rely for benefits and assistance.

1. Backlog

In 2006, the backlog of claims for VA benefits, has skyrocketed to over 654,000 claims.  See, Report Veterans Disability Benefits Commission, October 2007, p. 305.  At the same time, the VA received some 800,000 new claims in 2006, making it nearly impossible for VA staff to effectively address the 654,000 backlogged claims waiting to be processed and decided.

2. Processing Time

When a veteran submits a new claim for VA benefits, he or she must currently wait an average of 177 days-almost six months- before getting the first decision.  This six-month processing time consists primarily of the VA obtaining evidence, usually with the veteran’s assistance.  And, not surprisingly, when the VA does finally issue a decision, it is not always favorable.  When a veteran appeals an adverse decision, the processing time for a claim on appeal is astronomical.  On average, the time from receipt of the notice of disagreement, which begins the appeal, until the issuance of a Board of Veterans’ Appeals (“BVA”) decision is 971 days.  Office of the Secretary, Department of Veterans Affairs, “Strategic Plan for Employees”, July 2007, P 14; Reports of the Chairman of the Board of Veterans’ Appeals, Fiscal Year 2006, p.16.  Simply stated, because of the problems identified herein, a veteran must wait more than three years (177 days for the initial processing of a new client plus 971 days for appeal to be ultimately adjudicated) to finally get a favorable decision from the BVA granting him or her VA benefits and compensation. Those veterans whose claims are not granted by the BVA must wait 2 more years for a decision by the CAVC.

Compounding the processing time even more is the well-intentioned Veterans Claims Assistance Act of 2000.  The VCAA’s intended purpose was to better inform the veteran about the information and evidence needed to support his or her claim.  However, the reality is that the veteran now receives a multi-page form letter, which results in a deluge of confusing correspondence between the VA and the veteran.

3. Insufficient Staffing

As of April 30, 2007, the VBA had 12,684 employees processing veteran’s claims.  Department of Veterans Affairs, “Fact Sheet” July 2007, P. 6.  In September 2007, former VA Secretary Nicholson reported that 1,100 new staff had been hired in an effort to reduce the 177 days it takes the VA to issue the first decision on a new claim.  Even with these new hires, the staffing at local VA regional offices is woefully inadequate as the numbers make clear: some 13,784 VBA employees are being tasked with processing and deciding over 1.4 million new and backlogged claims.

4.  Insufficient Training

In 2006, the VA’s Office of Inspector General conducted a survey of Rating Veterans Service Representatives (“raters”) and Decision Review Officers (“DROs”). The results of the survey, revealed that within the last year they had received 10 hours or less of formal classroom instruction on rating policies and procedures.  Department of Veterans Affairs Office of Inspector General, “Review of State Variances in VA Disability Compensation Payments”, May 19, 2005, p.58. Given that the VA is the second largest government agency with 57 regional offices and over 12,000 staff throughout the country, 10 hours of training cannot possibly suffice to keep all of the VA’s local offices and staff in step with all the policies and procedures directly affecting veterans’ claims.

5. Inappropriate Production Standards

Raters and DROs are held to production standards of completing decisions in 3 to 5 cases per day which are tied to awards and bonuses, and which adversely affect the quality of their work and the accuracy of their decisions.  Nearly half (47%) of those surveyed said it was difficult or very difficult to meet their daily production standards.  Forty-nine percent stated that they had difficulty meeting their production standards without sacrificing quality.  And 57% stated they have difficulty meeting their production standards if they ensure that they have sufficient evidence for each rating and thoroughly review the evidence.  Department of Veterans Affairs Office of Inspector General, “Review of State Variances in VA Disability Compensation Payments”, May 19, 2005, pp.60, 61.  These adjudicators are supposed to make decisions based on the evidence in the veteran’s claims folder, which can be anywhere from a couple of hundred to several thousand pages of records.  But, by forcing VA adjudicators to make three to five decisions per day, the decision maker is forced to make rush decisions, oftentimes without genuinely reviewing the veteran’s entire claims file.

6. Inaccurate and Inconsistent Decision Making

Calculations derived from the Reports of the Chairman of the Board of Veterans’ Appeals reveal an accuracy rate in disability benefit decisions by the VA of less than 20%, rather than the 88% accuracy rate reported by the VA in 2006. See,  Institute of Medicine “A 21st-century System for Evaluating Veterans for Disability Benefits” Pp. 180,181; Reports of the Chairman of the Board of Veterans’ Appeals, Fiscal Year 2006, p.19. http://www.va.gov/Vetapp/ChairRpt/BVA2006AR.pdf.  Inaccurate rating decisions result in inappropriate denials and lower awards than are warranted, and also in more appeals.

Providing support for anecdotal complaints that veterans regularly have to appeal partially favorable Regional Office decisions ( usually due to a lower rating being assigned than the veteran’s disability warrants) the VA’s Office of the Inspector General’s 2006 survey, revealed that 52.4% of Regional Office raters believed it was somewhat likely or very likely that two or more different ratings ( one resulting in more compensation for the veteran) for the same medical condition could be supported.  Department of Veterans Affairs Office of Inspector General, “Review of State Variances in VA Disability Compensation Payments”, May 19, 2005, p.59.  In addition, veterans’ advocates are now reporting incidents of VA rating officers and examiners ignoring the diagnostic criteria contained in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. Giving more weight to their personal biases than the diagnostic criteria, VA raters and examiners are denying PTSD claims submitted by combat veterans, falsely concluding that the veteran’s combat stressor was insufficient for a diagnosis of PTSD.

RECOMMENDATIONS

1. Staffing

Quite simply, all VA regional offices need more staff to process and decide the new and backlogged claims.  NOVA recommends that increased funding be provided to the Veterans Benefits Administration, specifically targeted toward hiring more staff, raters and DROs.  Only by increasing the number of VA employees who have the responsibility for processing claims can the speed of claims processing be increased without sacrificing the accuracy of the decisions.

2. Training

In addition to hiring more staff, the staff must be regularly and effectively trained.  NOVA therefore recommends that increased funding be specifically directed toward providing

semiannual training in VA law and medicine to VA raters, DRO’s, Regional Office staff and to clinicians who conduct psychological evaluations and compensation and pension exams.  This training should provide emphasis on the significance of the duty to assist and notify veterans, the VA’s regulations regarding the benefit of the doubt, and how to rate difficult medical conditions such as psychological impairments, TBI, pain, impairments caused by Agent Orange exposure, and Gulf War Illness.  It should be noted that the Veterans’ Disability Benefits Commission recommended increasing VA staff and adequate education and training in order “to achieve a manageable claims backlog”.  Veterans’ Disability Benefits Commission, “Honoring the Call to Duty: Veterans Disability Benefits in the 21st Century”, October 2007, pp.394,395, recommendations 9.1,9.3,9.5.  Similarly, the VA’s Office of Inspector General recognized the need for ongoing training and reevaluation of human resources to “ensure that the VBA field organization is adequately staffed and equipped to meet mission requirements”.  Department of Veterans Affairs Office of Inspector General, “Review of State Variances in VA Disability Compensation Payments”, May 19, 2005, xi, recommendation 6.

Finally, this training needs to include some meaningful way for VA adjudicators to review precedential opinions from the U.S. Court of Appeals for Veterans Claims and apply them where relevant. Given the current caseload of claims to decide, VA adjudicators cannot be expected, on their own, to keep up with the Court’s jurisprudence.  There should be a system in place for key Court cases to be disseminated among VA adjudicators so they can start following and applying Veterans Court precedent in a timely and efficient manner. Consistent training sessions would help VA adjudicators better understand the implications and meaning behind important Veterans Court decisions, and help them implement the Court’s case law in their own rating decisions.

3. Concentrate on Accuracy Not Just Speed When Deciding VA Claims

Although every claimant wants a speedy decision, and the old saw reminds us that “justice delayed is justice denied”, an overly hasty and erroneous decision is not beneficial to the veteran or to the VA, which will have to deal with the eventual appeal.  In the long run, the time spent to provide an accurate and just rating will most certainly reduce the VA’s backlog by eliminating “hamster wheel” repeated reviews of the same claim, which occurs when a veteran is forced to appeal a hastily made erroneous decision.  By encouraging VA adjudicators to make quality decisions (as opposed to meeting a quota of decisions per day), they will take the time to review the veteran’s entire claims folder and apply relevant VA law, regulations and case law.

4. Require the VA to Maintain Statistics on the Regional Office Denial Rate

Without statistics on the VARO’s denial rate it is impossible to determine how many veterans and other claimants abandon their claims rather than proceeding with an appeal.  Denial rates broken down by type of claim would also provide an insight into the examiner’s and rater’s experiences in dealing with different claims.

5. Enact Legislation to Enhance the VCAA

Currently, the VA has interpreted the VCAA in such a manner as to deprive veterans and other claimants of meaningful and helpful claims specific information. Instead, the VA provides generic information which is not helpful because it fails to inform the veteran of what evidence is necessary to prove entitlement to benefits. The result is that is not until many years later, following multiple decisions and multiple remands, does the veteran finally understand the VA’s perception of the shortcomings in the evidentiary development of the claim. The propensity of the VA to withhold claims specific information contributes to “hamster wheel” litigation and to the VA’s increased caseload.