Joint Hearing of the Committee on Homeland Security and Governmental Affairs of the U.S. Senate and the Committee on Veterans’ Affairs of the U.S. House of Representatives at 1:00 p.m. CDT.
Witness Testimony of Ronald Abrams, Esquire, Joint Executive Director, National Veterans Legal Services Program
Mr. Chairman and Members of the Committee:
I am pleased to have the opportunity to submit this testimony on behalf of the National Veterans Legal Services Program (NVLSP). NVLSP is a nonprofit veterans service organization founded in 1980 that has been assisting veterans and their advocates for over thirty years. We recruit and train volunteer attorneys, service officers from such veterans service organizations as The American Legion, the Military Order of the Purple Heart and the Military Officers Association of America in veterans benefits law, and conduct quality reviews of VA regional offices on behalf of The American Legion. NVLSP also represents veterans and their families on claims for veterans benefits before VA, the U.S. Court of Appeals for Veterans Claims (CAVC), and other federal courts. Since its founding, NVLSP has represented thousands of claimants before the Department of Veterans Affairs (VA) and the Court of Appeals for Veterans Claims (CAVC). NVLSP is one of the four veterans service organizations that comprise the Veterans Consortium Pro Bono Program, which recruits trains and mentors volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative. NVLSP has written educational publications, such as the Veterans Benefits Manual (VBM), that thousands of veterans advocates regularly use as practice tools to assist them in their representation of VA claimants.
WHAT ARE COMPLEX DISABILITY CLAIMS
In general there are three types of complex claims:
- some claims, by their very nature, are very complicated;
- some claims can become complex as they are developed by VA or as evidence from the claimant is submitted; and
- some claims can become complex because of VA error.
Inherently Complicated Claims
Claims involving entitlement to special monthly compensation (SMC) and claims involving the evaluation of traumatic brain injury or mental conditions can be very complicated. (In fact, the regulation dealing with the evaluation of traumatic brain injury (TBI) is so complicated that some VA adjudicators call it the “Da Vinci Code.” (38 C.F.R. § 4.124(a), DC 8045).) Other inherently complicated claims include, but are not limited to, the evaluation of joint conditions (see DeLuca v. Brown 8 Vet. App. 202 (1995); claims for service connection for PTSD (includes claims for PTSD based on military sexual trauma (MST)); claims for secondary service connection; claims for service connection based on presumption (see 38 U.S.C. § 1101(3) and 38 C.F.R § 3.309(a) (2013); and claims for increase for a service connected back disability.
Claims That Can Become Complicated
Most claims for service connection have the capacity to become very complicated. Let me give you a few examples:
- Let us talk about what appears to be a simple claim for service connection for an arthritic joint condition (back, knee, shoulder, ankle). Many veterans support their claims for an arthritic condition by saying that they suffered from pain ever since discharge. In many instances there is no objective evidence of complaint or treatment of an arthritic problem in service. Some VA adjudicators deny such claims. These denials are wrong because this action constitutes a premature denial. If the duty to assist is triggered (38 U.S.C. § 5103A), the VA is obligated to further develop the claim to determine if the joint condition manifested to a degree of ten percent within one year of discharge (see 38 C.F.R. §§ 3.307 and 3.309(a)). The VA would be obligated to invite the veteran to submit lay and medical evidence that would tend to support the conclusion that the joint condition manifested to a degree of ten percent within the presumptive period and medical evidence linking the current disability to the symptoms identified within the first year after discharge. While medical evidence would be helpful, lay evidence alone can be enough to support the finding that a joint condition manifested to a compensable degree within the first year after discharge. Generally, a medical opinion would be required to link the veteran’s current joint disability to the symptoms suffered within the presumptive period. If service connection was granted, the VA would have to establish the proper effective date and evaluate the severity of the disability. These issues can also be complicated.
- Most claims involving entitlement to high levels of special monthly compensation (SMC) are inherently very complicated. Recently NVLSP worked on a claim for benefits that dealt with entitlement to SMC.
- The veteran was shot in the head while on a combat mission in Iraq. As a result of his injuries, surgeons removed part of his brain and skull. In total, he had undergone over thirteen surgical procedures and had been a patient at six military and civilian medical centers and continued to suffer on a daily basis from the devastating effects from his tragic injuries.
- The VA issued an initial Proposed Rating on March 7, 2011 (the veteran at that time, was still in service waiting to be discharged) which acknowledged eighteen different service-connected disabilities. These disabilities included residuals of traumatic brain injury (100%), a gunshot wound to the face (80%), and loss of half of the visual field in each eye (50%). The initial rating also awarded special monthly compensation at the (l ½) level based on the need for aid and attendance (l), combined with a separately rated disability greater than fifty percent (½). The VA also established entitlement to SMC ratings under 38 U.S.C. § 1114(k), for loss of use of the right foot, and one for loss of use of a creative organ.
- On April 5, 2011, the VA issued a second proposed Rating. This rating established entitlement to SMC M. Underlying this proposed special monthly compensation rating was the veteran’s need for aid and attendance (l), combined with additional, separately rated disabilities of the same etiology rated at 100% or more (next higher rate, to (m)). These separately rated disabilities include: gunshot wound to the left face, right eye, seizure disorder, scars, adjustment disorder, temporomandibular joint disorder, left ear hearing loss, tinnitus, loss of smell and taste, and seventh cranial nerve dysfunction.
- A law firm, assisted by NVLSP, (the law firm represented the veteran on a pro bono basis) argued that the evidence of record supported a higher level of SMC because he has (a) the loss of use of both his right hand and right foot, (b) the need for regular aid and attendance due to other independent disabilities, and (c) the additional need for a higher level of aid and attendance without which he would require residential institutional care.
We argued that for the reasons stated below, the veteran was entitled to compensation under 38 U.S.C. § 1114(r)(2).
- First, under 38 C.F.R. § 4.71a and Diagnostic Code 5111, the veteran is entitled a 100% schedular evaluation based on loss of use of both a hand and a foot.
- Second, he is also entitled to special monthly compensation benefits under 38 U.S.C. § 1114(l) due to the loss of use of both his right foot and right hand (38 C.F.R. § 3.350(b)). (The VA acknowledged the loss of use of the right foot.) In addition, as a result of his traumatic brain injury he also has functional loss of use in his right hand.
- Third, he is also entitled to special monthly compensation benefits under 38 U.S.C. § 1114(l), based on service-connected disabilities unrelated to his loss of use of his right foot and right hand, that cause him to need regular aid and attendance. The gunshot wound to his head triggered a full range of other disabilities independent of his hand and foot, including but not limited to seizures, vertigo, loss of vision, loss of hearing, cognitive difficulties, mild loss of memory, trouble swallowing, and partial paralysis in the face.
- Fourth, because there are two separate, unrelated special monthly compensation ratings under subsection (l), the veteran is entitled to special monthly compensation benefits under § 1114(o). Further, his entitlement to compensation under subsection (o) combined with his need for regular aid and attendance require that VA grant him, at a minimum, a rating under § 1114(r)(1).
- Fifth, considering the full range of his service-connected disabilities that resulted from him being shot in the head, he requires an even higher level of care than regular aid and attendance under subsection (r)(1). As the record indicates, the veteran would require residential institutional care without daily personal health care services in his home, supervised by a licensed professional. VA should therefore grant the veteran a special monthly compensation rating pursuant to subsection (r)(2).
- Also, it appears that when § 1114(t) becomes effective the veteran will be entitled to special monthly compensation benefits under subsection (r)(2) even without proving any need for daily personal health care services in the home. (§ 1114(t) became effective on October 1, 2011 after the date of this submission).
- Happily, before the injured service member was discharged, the VA awarded benefits at SMC(r)(2) rate.
- In this case, the excellent brief was not enough. When the VA delayed in granting this claim I asked for an explanation. I was told that in order for the VA to grant SMC(r) the evidence needed to show loss of bowl and bladder control. I was able to reach the supervisor of this VA component and took her through the entire process. Eventually she agreed with our analysis.
- This severely wounded veteran need the help of a major law firm and NVLSP to obtain, within a reasonable time, the proper level of benefits. Not every veteran has access to these resources. Therefore, it would be better for all veterans if VA raters could learn the complicated VA rules.
- VA errors can make simple claims complicated. For example, suppose a veteran claims service connection for PTSD. The alleged stressor or traumatic event is exposure to combat. In some cases a VA regional office schedules a VA examination (asking the doctor to determine whether the veteran suffers from PTSD and to opine as to whether the current PTSD is linked to a stressful event in service. In too many cases, the VARO does not take the time to review the record in order to tell the examiner whether or not the veteran was exposed to a stressor in service. That is a decision VA adjudicators must make. Because some VA examiners will not diagnose PTSD unless they identify an in-service stressor they provide a negative report to the VA (38 C.F.R. § 3.304(f)). Therefore, the claim for PTSD would be denied. If the veteran had a Combat Infantry Badge (an award that shows combat with the enemy), the negative medical opinion would be meaningless. In many cases, after this error, the veteran would have to appeal to the BVA or the CAVC. This could take years. A simple claim would turn into a nightmare.
THE NON-ADVERSARIAL VA CLAIMS ADJUDICATION PROCESS
First, I want to stress the obvious. Complex claims for VA disability benefits have a higher error rate than simple claims.
As far back as 1991 the US Court of Appeals for Veterans Claims (CAVC) held that “Rather than defending against the claims of veterans, the Secretary has a statutory duty to assist claimants during the course of the ex parte and non-adversarial claims resolution process at the regional office and before the BVA.” Manio v. Derwinski, 1 Vet. App. 140, 144 (1991). Under 38 C.F.R. § 3.103(a) (2013) “Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.”
Based on the experience of NVLSP, the most egregious VA errors are a result of premature adjudications. For example, the errors we have identified reveal that VA adjudicators failed prior to issuing an initial rating decision, even to try to satisfy the VA statutory duty to assist the claimant by obtaining the evidence needed to substantiate the claim. The VAROs incorrectly adjudicated and prematurely denied claims based on inadequate evidence (especially inadequate VA medical examinations).
Over the past 15 years, I have traveled to many VA regional offices as part of a quality review team for The American Legion. I have personally visited over 40 VA regional offices, some more than once. My job, as part of the Legion team, was to check the quality of adjudications at the various VA regional offices. The Legion should be commended for spending the time and money to do these reviews. Prior to that time, when I worked for the VA part of my time was spent in what was then called Statistical Quality Review (essentially VA Central Office quality review). Working for the Compensation and Pension Service, we checked the quality of adjudications in all VA regional offices (ROs). In addition, I currently review and approve or reject many BVA decisions that an NVLSP attorney proposes that we appeal to the CAVC. Based on that combined experience and based on the entirety of my work for NVLSP. I can tell you the following:
- The current error rate is somewhere between 30 and 40% (in some ROs it is higher). For example, the Legion quality review team identified errors in 35% of the cases in Indianapolis; 64% of the cases in Baltimore had errors; 31% of the cases reviewed in Nashville had errors; and 64% of the cases reviewed in Oakland had errors. (In the Legion reports errors were described as problems or comments.)
- It is unrealistic to assume that the accuracy rate at the VA regional offices will ever approach 98%. Please note that over 70% of claims appealed to the BVA are reversed or remanded and over 70% of BVA decisions appealed to the CAVC are reversed or remanded. I should also note that NVLSP obtains a reversal or remand in over 90% of the cases it takes to the CAVC.
- Many claims that should be adjudicated (or at least invited) are ignored by VA adjudicators. The VA Claims Adjudication Manual (M21-1MR) makes it clear that when preparing a decision, the VA regional office adjudicator must recognize, develop, and/or decide all issues, whether: expressly claimed, implied, informal, potential, mandated, or ambiguous. (See M21-1 MR PART III, Subpart IV, Chapter. 6, Section 2.B.2 a. Recognizing Issues When Preparing a Decision.)
- The most common errors are:
- premature denials based on inadequate development;
- under evaluation of mental conditions;
- under evaluation of joint disabilities;
- failure to consider presumptive service connection; and
- failure to inform VA medical examiners what facts have been accepted as true by VA adjudicators. (If the VA examiner does not know that a fact must be accepted as true then the medical opinion may be worthless because the VA examiner may provide an opinion based on the wrongful premise that the veteran’s statement is not accurate because it is not supported by other evidence of record.)
As you know, there is always tension between quantity and quality. In fact, faced with a growing backlog caused by a surge of claims from OIF and OEF veterans and with the compounded impact of many years of premature adjudications that forced claimants to appeal or file reopened or repeat claims, the issue of quantity vs. quality has gained increased importance. Unfair, premature denials cause unnecessary appeals and years of delay before deserving veterans obtain justly earned benefits. Adjudicating many claims quickly does no good if many of these adjudications are premature and many deserving veterans are unfairly denied. Many veterans will appeal and the overall backlog will simply grow.
The most important and pervasive problem facing veterans seeking VA disability benefits is the eagerness of some VAROs to adjudicate claims before all necessary evidence has been obtained. This is especially true for complex claims. For example, some VAROs prematurely deny claims based on inadequate VA examinations. In some cases, even where the VA examiner clearly fails to respond to a specific question asked by the RO, the examination report is not returned as inadequate. Instead, the claim is adjudicated and denied on the basis of the inadequate report. In other instances, claims are denied before all service medical records are received. Other claims are sometimes denied before the veteran has a fair opportunity to submit independent medical evidence. These all-too-frequent cases of premature denial result from an over-emphasis on timeliness and a lack of accountability.
It is clear to NVLSP that the way the VA evaluates its adjudicators and the way the VA awards work credit encourages sloppy adjudication resulting in premature, unfair denials. Therefore, the first thing those who manage the VA need to do is to admit there is a real and very serious problem with the quality of VA adjudications. NVLSP believes that the problems within the VA claims adjudication system are so serious that recent innovations such as paper-free or electronic claims processing, and different “lanes” for specific types of claims, while helpful, will not be enough to fix the problem.
I wish to commend the Under Secretary for Benefits, General Allison A. Hickey, for her commitment to the Fully Developed Claim (FDC) program. This FDC initiative could be the best thing the VA has attempted in the last 40 years.
That said, the VA work measurement system has to be overhauled so that there is a balance between quality and quantity. Also, the VA needs to acknowledge the complexity of its claims adjudication system and continue to increase the number of adjudicators to work these claims. At the current time, based on my 39 years working in veterans law and especially my quality review experience, I can confidently say that most regional office need more workers just to keep up with the current workload. More adjudicators are desperately needed if the backlog is to be reduced and initial claims and appeals are to be accurately adjudicated within a reasonable amount of time.
The following suggestions should be considered:
- The VA should be required to submit to an independent quality review to validate the quality of work performed in the individual VA regional offices.
- The pay grade levels of VA raters and Decision Review Officers should be raised on the condition that these employees are held accountable for the quality of their work (rewards for accurate prompt adjudications, and adverse personnel action for unacceptable levels of quality).
- Congress needs to continue to provide additional funding for more adjudicators.
- Adjudicating from electronic records is a laudable goal if complete records can be obtained and if the database permits logical searches.
- Finally, the adjudication culture at the VAROs needs to be changed. Many VA managers unfortunately act like they are producing widgets rather than adjudicating claims filed by real people. Their goal should not be just prompt adjudication; the goal should be a timely, accurate and fair adjudication – which in the long run is the fastest way to finally adjudicate claims. I want to note that the current VA management is trying to do this but more needs to be done.
NVLSP is not demanding perfection from VA managers and adjudicators. NVLSP, however, feels that unless the adjudication culture is changed, unless the VA can hire more adjudicators and unless the VA changes the way it counts its work, there will be no significant improvement.