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 state of the Veterans Benefits Administration (“VBA”).

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"), and the United States Court of Appeals for the Federal Circuit ("Federal Circuit").  

NOVA has written amicus briefs on behalf of claimants before the CAVC, the Federal Circuit and the Supreme Court of the United States of America.  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 VBA.

THE VBA HAS OBVIOUS PROBLEMS

NOVA’s previous testimony and reports from the Department of Veterans Affairs Office of Inspector General have detailed the VBA’s problems including:

an antiquated and insecure paper file;

inadequately trained employees; 

ineffective supervision;

inadequate metrics leading to inability to determine whether work is performed correctly;

work credit system which induces employees to rate claims which have not been properly developed;

an institution which is more concerned with finding fraudulent claims than timely granting meritorious claims; and 

an institution which is so out of control that it takes years to promulgate needed regulations and which is incapable of  effectively communicating policy to its employees. 

VBA, under pressure from Congress and from various stakeholders, has recently initiated pilot projects incorporating techniques intended to solve, in isolation, only one problem at a time.  Still the veterans claims adjudication system limps along each month incorrectly deciding claims and thereby adding thousands of appeals to the system and adding to the frustrations of veterans and other claimants.  During the past year, from May 15, 2009 to May 15, 2010, the VBA’s Monday Morning Workload Reports show an 11% increase in pending appeals from 171,716 to 190,778. http://www.vba.va.gov/REPORTS/mmwr/historical/2009/index.asp;  http://www.vba.va.gov/REPORTS/mmwr/index.asp .

Apparently, as a result of the VBA’s awareness that improperly developed claims lead to erroneous decisions and that, in the rating process, the most time is consumed by claim development, the VBA continues to try different plans to generate fully developed claims prior to rating. Remarkably, the VBA has never advocated for veterans to have the right to hire a lawyer, for pay, during the time that the claim is initially filed and developed to assist in the claim development.

The most recent annual report of the Chairman Board of Veterans’ Appeals shows the effect of having lawyer representation of veterans and their families, following enactment of the Veterans Benefits, Health Care, and Information Technology Act of 2006, P.L. 109-461.  In FY 2009, those claimants who had attorney representation at the BVA received a larger percentage of favorable results than did those without attorney representation and a larger percentage of favorable results than did those who were represented by VSOs.

FY 2009

In addition, a recent law review article published in The Federal Circuit Bar Journal advances the proposition that denying veterans the right to hire a lawyer at the outset of a claim “may cost a single veteran millions of dollars” Benjamin W. Wright, “The Potential Repercussions of Denying Disabled Veterans the Freedom to Hire an Attorney”, 19 FCBJ 433,435 (No. 3, 2009). 

Not only has the VA been disseminating mixed messages by recognizing the difficulty in developing claims yet not attempting to obtain attorney assistance in developing claims, but the VA, which asserts that it wants to assist veterans and put veterans first, is now requesting legislation which is harmful to veterans. Just a few weeks ago, the Secretary requested introduction of a bill which the VA drafted and titled the “Veterans Benefits Programs Improvement Act of 2010” which will be harmful to veterans and the claims which they file. Among the provisions which have the potential to hurt veterans are those which would allow the VA to impose a stay on the adjudication of a claim without obtaining prior permission from any court, section 201; cutting in half the time allotted for a veteran to file an appeal, section 202; eliminating the benefit of equitable tolling for the late filing of a BVA appeal and making the timely filing of such an appeal jurisdictional, section 203; eliminating the requirement that decisions by the BVA must be supported by adequate reasons and bases, section 206; and radically changing the law of Equal Access to Justice Act (“EAJA”) fees by requiring a veteran to be awarded monetary or other benefits, in court or on remand by the RO, before the veteran is entitled to EAJA fees, section 207.

SOLUTIONS REQUIRE AN ORGANIZATIONAL OVERHAUL

During the Claim Summit, conducted by the House Committee on Veterans’ Affairs on March 18, 2010, NOVA focused on three primary deficiencies which must be corrected by the VA, simultaneously, if the system is to be fixed. They are lack of a well defined business model and plan, lack of adequately trained staff and administrators to carry out the plan, and lack of accurate and reliable metrics to monitor performance.

NOVA has also previously testified that there are too many levels of management in the VA’s organizational chart which has led to institutional paralysis or the inability to act expeditiously and properly, and which has led to mixed messages coming out of the VA.

In addition to the VBA’s need for an effective business plan, adequate training and supervision, accurate metrics, and a streamlined organization, the VBA must become user friendly and must consider the needs and limitations of veterans in order to efficiently and accurately assist veterans. Veterans must be given all the help they need and desire in processing their claims, including the right to hire an attorney.  Additional impediments should not be imposed such as shortening a veteran’s time to appeal unfavorable ratings.  The VA should not deprive veterans of a full explanation of the decisions made regarding their claims. Rather, the VA should operate under the assumption that veterans generally file meritorious claims which should be fully and quickly granted. Such a change in outlook would naturally lead to a triage system for claims management which would dramatically cut backlogs of initial claims and appeals.

Veterans and their families must not be overburdened by useless paperwork and redundant, undecipherable requests for information.  Ill and impaired veterans should not be required to initiate their claims with more than a simple, one page, claim form.  They should be given face to face interviews and the right to participate in hearings and review claim files without the need to travel four or more hours to participate in the adjudication of their claims.  Rather than the present system containing 57 Regional Offices which requires many veterans to travel large distances, a veteran friendly system would disperse most of the functions of the present Regional Offices to locations in or in close proximity of each VA Hospital, and Vet Center.  Decentralizing the VA would allow, interviewing, form completion and evidence development, and hearings to be located close to the claimant’s home, while centralized state offices would house the rating boards. Active veteran participation would tend to result in more complete and accurate claim development. Obviously, the previously discussed recommendation to decentralize the VA will not work without a twenty first century veterans claim system which is paperless and which allows access by veterans and their representatives.  Also, the VA will never deserve the confidence of our country and our veterans until the VA can demonstrate that claims files are tamper proof and safely stored.  A somewhat analogous system has been utilized by the Social Security Administration which has a paperless file, which has multiple local offices dispersed throughout each state for taking applications, dispensing information and conducting interviews, and which has centralized offices for reviewing the evidence.

A user friendly system would begin the claim development phase by clearly and precisely requesting specific documentation from the veteran, such as a necessary DD214 or current medical records.  Rather than utilizing an assembly line approach with six teams performing separate tasks, an efficient system would utilize one decision unit to handle everything from reviewing the application for completeness in predetermination through gathering the evidence and producing rating decisions. It is crucial that the combined development/adjudication unit be directed to partnering with the claimant and the claimant’s representative, if the claimant is represented, to fully understand and develop the claim.  If additional information is necessary, the team should issue an understandable and case specific VCAA notice, prior to any rating decision, should assist with any additional development, and then should issue the rating decision. Because most of the delay in processing claims involves development, particularly waiting for and obtaining C&P exams1, NOVA suggests that the VBA utilize 38 U.S.C. § 5125(a) 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.

A user friendly system must grant veterans the same rights granted to all citizens, the option to hire a lawyer for assistance, if desired, from the very beginning of the proceedings.  Presently, veterans who are notified of the possibility that their rating will be reduced are not permitted to hire an attorney, for a fee, to represent them even after they formally object to the notice of reduction. A veteran must wait until after his rating has actually been reduced to hire a lawyer, for a fee. Similarly, veterans who believe that an earlier denial was the result of clear and unmistakable error must prepare a request for revision without being allowed to hire a lawyer, for a fee. Not only should the veteran’s right to chose to hire a lawyer be expanded, but after a lawyer or other representative is hired, neither the VBA nor the BVA should view the veteran’s representative as having interests opposed to the VA’s central mission of providing proper benefits to veterans and their families.  Rather, the VA should partner with the claimant’s representative and use informal conferences to speed claim development and to narrow the issues to be decided.

Because the present rating system is difficult for veterans to understand and for rating boards to apply, the complexity of the Rating Schedule frequently leads to erroneous decisions.  It is necessary for the VA to rework the entire Schedule for Rating Disabilities contained in 38 C.F.R. Part 4 to simplify and update the ratings.  Being mindful of the increasing number of veterans whose life is in shambles because of residuals of PTSD or TBI, in rewriting the Schedule for Rating Disabilities the VA should comply with the recommendation that ratings be designed to compensate veterans for loss of quality of life in addition to loss of earning capacity. 

To control the ever increasing backlog of claims, the VBA must adequately triage claims. Increased use of presumptions would eliminate the need for development of evidence regarding the incidents of military service for all those who were deployed to a war zone regardless of their military occupational specialty or place of assignment within the war zone.  Thus, for example, anyone who was deployed to a war zone, whether during WWII, Korea, Vietnam, the Gulf War or the GWOT who is subsequently diagnosed with PTSD should have the sole inquiry, during the rating stage of their claim, concentrate on the severity of their symptoms.  Anyone who is diagnosed with a medical condition while on active duty and who is presently being treated for that condition should not need to prove a medical nexus between the conditions. Also, veterans who are receiving Social Security Disability or Supplemental Security Income benefits based on conditions which are related to service should be presumed to be unemployable. 

Following an unfavorable rating decision, the claimant should only be required to file one request for an appeal instead of the present requirement to file both a notice of disagreement and a substantive appeal to the BVA.  Thereafter, the claimant and his representative should have the right to submit further evidence or argument and to have a denovo review on the record, or a hearing by a Veterans Law Judge (VLJ) sitting in a BVA office close to the decentralized Regional Offices.

Adequate training, supervision and accountability are essential to create a system which fulfills the mission to correctly decide all claims. This requires reworking the organizational chart to provide reporting and direct accountability from the Regional Offices to the Secretary.  Presently, there are an excessive number of layers of executives in the system which impedes the flow of knowledge and which inhibits accountability.  Files do not get lost, shredded or compromised in a modern business with direct accountability.  Also, in a system with direct accountability poorly trained workers are not called upon to perform functions essential to the mission.  It is essential that the pressures placed on rating specialists and VLJs to turn out decisions be replaced with a system which expects the right decision to be made at all levels of the process. Veterans require a system which does not issue a decision until the claim is fully developed, which involves a true partnership between the claimant and the VA, and which rewards prompt and correct decision making.  NOVA’s experience confirms the findings in the 2005 report of the Office of Inspector General that the present work credit system is providing a disincentive to properly deciding claims. It should be replaced.  To complement new expectations of increased accuracy and accountability it is essential that VA employees be repeatedly and adequately trained and supervised.  Additionally, the high rate of VLJ decisions which are returned by the CAVC to the BVA because of inadequate reasons and bases is unacceptable and contributes to the backlog and to the reputation of “hamster wheel” adjudications.

In a system with adequate training and accountability VLJs do not write decisions which are affirmed only 20% of the time, on appeal to the court.  To ensure efficient, convenient, timely and proper appellate review at the administrative level, the Board of Veterans’ Appeals should be decentralized and dispersed within reasonable distances from the many Regional Offices.  Not only should the VLJs be moved out of their fortress in Washington, D.C., but they must be reconfigured into a corps of truly independent and well trained Federal Administrative Law Judges.

Appeal from the VLJ’s decision should go to the CAVC and then to the Federal Circuit.  NOVA recommends two changes to the operation of the court.  First, the CAVC should be granted class action jurisdiction so as to be able to remedy situations which affect a broad class of veterans. Second, the CAVC should be required to resolve all issues which are reasonably raised, except for constitutional claims if the appeals can be resolved without reaching the constitutional claims.

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 09-02135107, 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.