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") concerning the Veterans Benefits Administration Employee Work Credit and Management Systems.

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"). 

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 eighteen-year experience representing claimants before the Veterans Benefits Administration (“VBA”).

P.L. 110-389

In October 2008 Congress passed S. 3023, enacted as P.L. 110-389, and titled the "Veterans' Benefits Improvement Act of 2008" ("the VBIA 2008" or “Act").

Among the reports which the Act required the VA to submit to Congress, before the end of 2009, is a report on a study conducted on the effectiveness of the current VBA employee work credit and work management systems.  Act, section 226.

VA COMPLIANCE WITH P.L. 110-389

As of the date this testimony was submitted, NOVA has not seen a copy of the VA’s required report to Congress.  Moreover, as of May 1, 2010, the VA’s required report had not been submitted to Congress.

THE WORK CREDIT SYSTEM

For many years NOVA’s members have noticed large numbers of inaccurate compensation and pension decisions which we attributed, in part, to lack of effective training of VA employees and to their cursory review of claims folders.

One of the first published studies to confirm that the VA’s present work credit system prevents accurate decision making was the May 19, 2005 report from the VA Office of Inspector General, “Review of State Variances in VA Disability Compensation Payments”, Report No. 05-00765-137 (“ the Report”).  According to the IG, the VBA’s national production standards which must be equaled or exceeded by each Regional Office (“VARO”) include, for journeyman Rating Veterans Service Representatives (“RSVRs”), 3 to 5 weighted cases per day, based on the type of claim and the number of claimed disabilities or issues rated; from 3 to 7 weighted cases per day for those working from home; and from 3 to 4 weighted cases per day for Decision Review Officers (“DROs”).  Report, page 60. 

Sixty-five percent of those VA employees who responded to the IG’s questions (questionnaires were sent to 1,992 rating specialists and DROs) reported insufficient staff to insure timely and quality service.  More troubling is the report by 57 percent of those responding that it is difficult to meet production standards if they adequately develop claims and thoroughly review the evidence before issuing rating decisions.  And, 41 percent of those responding estimated that 30 percent or more of the claims were not ready to rate when presented for rating.  Report, pages viii, 58, 60. 

An additional indictment of the work credit system is contained in the June 5, 2009, Booz Allen Hamilton Final Report, “Veterans Benefits Administration Compensation and Pension Claims Development Cycle Study” (“Booz Allen Report”) which noted that, although the work credit system ties employee performance standards to the system, the work credit system “does not measure individual contribution to VARO production goals...[and] does not track the number of claims made ready to rate or the amount of time a VSR needs to prepare a claim for rating.”  Booz Allen Report, pages 16, 17.  Furthermore, the work credit system is processed utilizing software known as the Access Standardized Performance Elements Nationwide (“ASPEN”), an automated database maintained on the VBA’s information technology system, which relies upon self reporting of specific actions taken during the processing of a claim, for example, .5 credits for conducting follow-up work on a claim already in development, but 1.5 credits for sending a VCAA notification letter. Booz Allen Report, pages 5, 16.  More specifically, in 2010, Veterans Service Representatives (“VSRs”) received 1.25 credits for issuing a Veterans Claims Assistance Act (“VCAA”) notification letter to a veteran claiming 1 to 7 disabilities and 1.5 credits if the veteran claimed 8 or more disabilities.  September 23, 2009, Report from the VA Office of Inspector General, “Audit of VA Regional Office Claims Processing Exceeding 365 Days” Report 08-03156-227, page iv.

The American Federation of Government Employees, AFL-CIO, has stated that work credits are not properly assigned for the various tasks necessary for processing a claim which causes VBA employees “to short cut those tasks that are undervalued, such as additional case development.” Statement of John McCray, AFGE, February 3, 2010, before the House Subcommittee on Disability Assistance and Memorial Affairs, page 5.  Additionally the work credit system has led to a hostile work environment in which additional stress is imposed by “arbitrary increases in production requirements.”  Statement of John McCray, AFGE, February 3, 2010, before the House Subcommittee on Disability Assistance and Memorial Affairs, page 2.  The result of the VA’s periodic increases in required production standards has been “a dramatic drop in both accuracy and station production....” id., page 2.

ACCURACY

The STAR Program

Accuracy in VBA decision making is reported in and is measured by STAR, Statistical Technical Accuracy Review, which requires reviewers, who are VBA employees, to review for accuracy a statistical sample of cases worked by each regional office.  According to the 2005 IG report, the VBA’s error rate was 13 percent in 2004.  Report, page 55.

There is presently no 100 percent reliable way to assess the VBA accuracy rate because there are no available statistics on the number of incorrect rating decisions which are not appealed, nor on the number of partially correct rating decisions, containing incorrect effective dates or disability percentages, which are not appealed.  Rather than rely on the VBA’s misleading published accuracy rates, one commentator suggests that review of the claims which are appealed to the BVA is more informative.  Benjamin W. Wright, The Potential Repercussions of Denying Disabled Veterans the Freedom to Hire an Attorney, 19 FCBJ 433, 440 (2009).

Statistics from the Board of Veterans Appeals for FY 2007, suggest a VBA error rate over four times as large as that reported by the VBA for those decisions which were appealed to the BVA.  Thus, in 2004 it took on average 937 days, or 2½ years from initial appeal, or Notice of Disagreement, to final Board decision, see Report Chairman of Board of Veterans Appeals, FY 2004, page 8, http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2004AR.pdf . 

Review of the Chairman’s Annual Report for FY 2007, page 20,  http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2007AR.pdf  which would be expected to contain decisions on appeals from those VBA decisions appealed in 2004, shows that, in 2007, 41 percent percent of the appeals to the BVA were denied, leaving 59 percent which were reversed or remanded because of errors by the VBA, not the 13 percent error rate which was reported in STAR.

The use of ASPEN

Another information technology system utilized by VBA to track performance of VSRs, RVSRs, and DROs, is the Access Standardized Performance Elements Nationwide (“ASPEN”).  Booz Allen Report, page 5.  Problems with this system include that it reflects a random internal review by a Super Senior VSR who pulls the file, reviews the case, logs the result in ASPEN and returns the file.  Not only might the internal reviewer’s judgment be questionable, but the delay in providing feedback can be as long as six weeks.  The procedure discourages employees from revealing problems, and does not emphasize problem-solving and root-cause analysis.  Booz Allen Report, page 18.  

MANAGEMENT

Because the VBA changed the claim processing model from the unified team case management approach to the Claims Processing Improvement (“CPI”) model, utilizing six separate teams, and separating pre-determination (development) from rating and post-determination and appeals, “work moves in large batches to the next step before it is actually needed...claims spend time waiting in queues between process operations...[and there is] overlapping, redundant, and sometimes unnecessary work activities.” Standardized step-by-step instructions are not provided. Team members lack immediate and unambiguous feedback because limited visual management cues are provided.  Additionally, employees are “not sure how the quality of their work impacts the next step in the process, or how their work contributes to the quality of the final product.” Booz Allen Report, pages 3, 13, 14, 18.

Not only does the use of the CPI model cause delays, but the present system, which requires the assignment of work to a VSR utilizing a system based on the last two digits of a Veteran’s claim number, leads to short term “backlogs and delays by not routing work to available VSRs,” Booz Allen Report, page14.

A further inefficiency is caused by VBA’s use of supervising managers who are not adequately trained.  Statement of John McCray, AFGE, February 3, 2010, before the House Subcommittee on Disability Assistance and Memorial Affairs, page 3.

NOVA’S SUGGESTIONS

Booz Allen’s Cycle Study highlights systemic problems of delays, inefficiencies and inaccuracies present in and created by the VBA’s claims adjudication process which are well known to those who practice in this field and are consistent with the findings contained in the 2005 report by the VA Office of Inspector General concerning the effect of the work credit system on inducing VA employees to prematurely and inaccurately rate claims.

NOVA supports the Booz Allen recommendation to return to a pod team approach and to encourage VA employees to take the time necessary to process a claim correctly the first time.  Further, rather than utilizing the present obstructing work credit system, VA employees should be evaluated on the correctness and completeness of their actions to advance the efficient, timely and accurate resolution of the claim.  Because most of the delay in processing claims involves development, particularly waiting for and obtaining C&P exams[1], NOVA also suggests that 38 U.S.C. § 5125(a) be amended to require the VA to forego obtaining an additional exam where the record already contains an exam sufficient for rating purposes which would result in a grant of the benefit requested.

Additionally, NOVA recommends the creation of independent quality control teams to monitor accuracy and efficiency and to provide the additional service of conducting on the job training by reviewing claims folders with VSRs, RVSRs, and DROs.  Obviously, suitable training is a crucial component of a system designed to make the correct decision the first time.  More time and resources need to be devoted to ensuring that all VA employees who handle claims are adequately trained to do their job in an accurate and timely manner.  

[1] March 17, 2010, Report from the VA Office of Inspector General, “Audit of VA’s Efforts To Provide Timely Compensation and Pension Medical Examinations” Report 09-02135-107, pages i, 11; September 23, 2009, Report from the VA Office of Inspector General, “Audit of VA Regional Office Claims Processing Exceeding 365 Days” Report 08-03156-227, pages iii, 4, 8, 9; Booz Allen Report, page 12.