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Witness Testimony of Ronald B. Abrams, National Veterans Legal Services Program, Joint Executive Director

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 twenty-eight years. NVLSP has trained thousands of service officers and lawyers in veterans benefits law, and has written educational publications that thousands of veterans advocates regularly use as practice tools to assist them in their representation of VA claimants. NVLSP also conducts quality reviews of the 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 over 1,000 claimants before the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims (CAVC).  NVLSP is also one of the four veterans service organizations that comprise the Veterans Consortium Pro Bono Program, which recruits and trains volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative. 

Background

The VA has been rocked by a series of scandals during the second half of 2008.  In July 2008, the VA’s Compensation and Pension Service conducted a routine site visit at the VA Regional Office (RO) in New York City and discovered that 16 of 20 cases had an incorrect date of claim in a computer database that the VA uses to track and manage pending claims. It is clear that this regional office had a longstanding practice of manipulating statistics. For example, a later review of 390 cases showed a 56.4 percent error rate in the date of claim entered into the database. Then another review of 386 sample cases completed at the New York RO from fiscal year (FY) 2007 to the middle of FY 2008 revealed that 21.5 percent of cases had an incorrect date of claim entered in the VA computer database.  In response to these reviews, the VA asserted that no payments to veterans were affected by these actions and that the errors “were a result of miscommunication.”

This practice was not the only abuse found at the New York RO.  During the fall of 2008, the VA Inspector General (IG) uncovered a significant amount of unopened or unprocessed mail and documents relevant to claims for benefits improperly placed in office shredder bins. The mishandling of documents was shown to be widespread.  For example, an IG report found that 700 pieces of mail were found unprocessed during an October 6, 2008 visit. These deceptive practices led to the reassignment of the Director and Assistant Director of the New York RO. Also, four other VA managers from the New York RO were placed on administrative leave. 

The news gets worse. By mid-October 2008, investigations by the VA IG revealed that other ROs were guilty of mishandling documents as well. Several ROs were improperly placing original documents necessary to the outcome of veterans’ claims in shredder bins. On October 16, 2008, the VA Secretary suspended all document shredding until the IG and VA could determine the extent of the problem. Four ROs—Detroit, St. Petersburg, St. Louis and Waco—were named in the shredding scandal as of the end of October 2008, with more than two-thirds of VAROs in question.

New VA Policy on Managing Paper Records

The VA, in response to the shredding scandal, announced it tightened policies for the maintenance, review and destruction of paper. The new policies went into effect on November 14, 2008. Under the VA’s new policy, RO shredding equipment and operations are controlled by the facility’s records management officer. Every employee will have a separate envelope and a separate box for papers that are to be shredded.  These containers are subject to review by supervisors and other officials.  Before any document related to a claim can be shredded, there must be two signatures (the employee’s signature and the employee’s supervisor’s signature). (See VBA Letter 20-08-63 (Nov. 14, 2008)).

VA Corrective Action:  “Special Claims Handling Procedures for Missing Documents”

Special procedures now apply to veterans (and other claimants) whose claims may have been affected by the recent shredding abuses. The new policy is called the “Special Claims Handling Procedures for Missing Documents.” The policy covers documents allegedly filed during the 18-month period preceding the date that VA stopped the shredding of documents. This means that it affects documents purportedly filed between April 14, 2007 and October 14, 2008.  See VA Fast Letter 08-41 (Nov. 14, 2008). The VA should have, but did not, promulgate a regulation to implement this special procedure.

If a veteran or VA claimant believes that documents submitted in support of a claim may have been lost or destroyed during the covered period (April 2007 to October 2008), they may review their claims folder at the RO to see if the documents in question have been associated with the claims file. Veterans and claimants concerned that documents may be missing can contact VA toll free at 1-800-827-1000 or send an inquiry to IRIS@va.gov.  Any request to the VA should mention the “Special Claims Handling Procedures for Missing Documents.” 

Veterans must file a request under the “Special Claims Handling Procedures for Missing Documents” by November 17, 2009.  As noted, the request should include the date the document was originally submitted to VA and, if possible, a copy of the missing documents.  If the veteran does not have a copy of the document(s) submitted, the VA says it will assist the veteran in obtaining a duplicate copy of evidence if it pertains to a VA medical record, a private medical record, or other supporting evidence—providing that the veteran or the veteran’s representative, if any, gives the VA as much information as possible to specifically identify the document.

If the missing document is an application for benefits, the veteran should complete another application for benefits and submit it with a request for consideration under the Special Claims Handling Procedures for Missing Documents, providing the date that the original application was filed. If the veteran has already resubmitted an application for benefits but wants the VA to consider the effective date of the original application filed, a request for consideration under the Special Claims Handling Procedures for Missing Documents should be made. A grant of benefits based on a duplicate application should be paid from the date of original submission. 

If a veteran believes that documents (including applications) submitted before April 14, 2007 were lost or destroyed, then credible corroborating evidence to support a finding that such documents were filed must be submitted. This is a much higher standard than the standard that applies to missing documents submitted between April 14, 2007 and October 14, 2008—which basically allows consideration of earlier submissions based on little evidence or on the word of the veteran. 

What to Do Now

It is clear that the VA has very serious problems in its claims adjudication system. What we need to do now is determine both the cause of the problems (statistical manipulation and shredding) and the cure for these problems.

What Caused This Disgraceful Problem

NVLSP believes that long-standing VA policies were the major cause of this employee misconduct. The method that the VA uses to grant work credit and assess the performance of VA officials is the main culprit. The performance of VA employees/managers is judged (in part) by the number of benefits claims completed during a given time period, usually a calendar or fiscal year. Completion of a large number of claims is essentially considered the equivalent of good work performance.

In the experience of NVLSP, (over ten years of quality reviews, in conjunction with The American Legion of approximately 40 different VAROs combined with extensive NVLSP representation before the CAVC and the BVA), most of the most egregious VA errors and misconduct involve an attempt to prematurely issue a decision on a claim before the evidence the VA is required to obtain to help the veteran substantiate his or her claim is associated with the VA claims file.  This rush to judgment is caused by pressure to quickly complete adjudications. Many VA managers emphasize quantity over quality. VA employees have formally complained that the culture in the VA regional offices emphasizes quantity to the detriment of quality.

The major cause of VA employee misconduct is a VA work credit system that prevents the fair adjudication of many claims for VA benefits generating extra work for the VA and major problems for claimants. Also, the inadequate quality of many VA adjudications and the inadequate number of trained adjudicators contribute to the size of the backlog which pressures VA employees to take unlawful shortcuts in adjudicating claims.

The Unfair VA Work Measurement System

The current VA work credit system prevents the fair adjudication of many claims for VA benefits and encourages the type of misconduct that has so embarrassed the VA. The current VA work credit system needs to be overhauled because the current system rewards VA managers and adjudicators who claim multiple and quick work credit by not complying with the statutory duties to assist claimants obtain evidence that would substantiate their claims and notify claimants of what evidence would substantiate their claims.

The VA work credit system tends to create cynical and corrupt VA employees. Some VA adjudicators who are pressured to take shortcuts and to make premature adjudications, may decide that destruction of records or statistical manipulation of dates of claim, are “not such a big deal” -- because these actions promote a temporary reduction of the claims backlog and because unlawfully inflated production statistics support bonuses and promotions for VA adjudicators and managers.

The VA work measurement system tends to drive what and whom it measures. VA managers are evaluated by how many end products (i.e., work credits) they produce, how quickly they can take credit for end products, how many employees they need to produce these end products, and lastly, the quality of the work in the office they manage.  Because it is in the best interest of the VA managers to complete as many cases as quickly as they can,  the interests of VA managers in many cases stands in opposition to the interests of claimants for VA benefits.

Responsibilities of VA managers that protect the fairness of the adjudicatory process--such as “control” of claims, supervisory review of unnecessarily delayed claims, thorough development of the evidence needed to decide a claim properly, recognition of all of the issues involved, provision of adequate notice, documentation that notice was given, and careful quality review--all adversely affect the productivity and timeliness statistics (that is, how many decisions on claims are made final within a particular period of time) for the VA manager. Consequently, proper attention by VA managers to their legal obligations very often adversely affects the statistics upon which their performance is rated. 

The work measurement system creates a tension between claimants and VA bureaucrats that fosters the current corrupt VA adjudication climate. This is an untenable situation. Fortunately, because we have a new Secretary and because the current scandals have brought these problems to the public’s attention, we have a chance to fix most of these problems.

Solutions

The VA has been studied by blue ribbon panels, by the Government Accountability Office (GAO), by the VA Inspector General, by various other special commissions, and even by university professors. Most solutions focus on reducing the VA backlog by reducing or even eliminating the procedural rights veterans enjoy today. NVLSP believes that the primary goal of any proposed solution is to ensure that deserving claimants are paid their service-connected disability benefits correctly, promptly, and efficiently.

NVLSP suggests that the cure needs to fix the fundamental problems that corrupt the current VA claims adjudication process. At a minimum, there are three things the VA must change in order to improve its claims adjudication system.

First the VA must hold VA adjudicators and managers accountable for the quality of their work they produce. The following are some examples that could be implemented to support accountability.

  • Rational and realistic performance standards should be established.
  • Bonuses and promotions should be awarded to managers and adjudicators who are both productive and accurate.
  • VA managers should be provided statistical amnesty because current VA statistics are not (as the current scandal reveals) reliable. In order to obtain accurate data VA managers should be encouraged to present truthful statistics even if they are much worse than what has previously been reported.
  • VA managers (Service Center Managers and VA Directors) should be regularly transferred in order to foster consistency in adjudication and to prevent balkanization.
  • The claims process improvement model (CPI) should be eliminated and the VA should go back to the case management concept. The CPI reduces accountability and creates the impression that the VA adjudication divisions are producing widgets.
  • Managers who manipulate statistics should be severely punished.  

Second, in order to properly measure its work, in order to properly hold employees and managers accountable and in order to provide an incentive to VA employees to take the time to fairly adjudicate claims – the VA needs to change the way it measures its work. Work credit should not be awarded until after the appellate period expires or the appeal is resolved. This would promote quality work and speed the overall adjudication process because it would reduce and in some cases eliminate repeated BVA remands.

Third, in order to enforce the fairness of the system (for claimants and for VA employees) the VA needs to create an independent quality review system that is outside the supervision of the Under Secretary for Benefits.

  • The Central Office quality review team should be supervised by an official who will not be adversely impacted by negative findings.
  • The VA Central Office quality review program should be amended so that the quality review team reviews entire file (as opposed to just a current action) and the VARO is held accountable for all errors noted.

Streamlining

Once the above three solutions have been implemented, then it is time to streamline the VA claims adjudication process. For example,

  • The VA has many hearing loss claims and expends a lot of time trying to resolve the dispute whether the veteran was exposed to acoustic trauma during service.  The entitlement criteria should be simplified through the creation of a presumption that all veterans were exposed to acoustic trauma in service. It costs more money for the VA to develop the evidence on, and adjudicate this issue than it is worth. Of course, this does not mean all veterans with hearing loss will receive service-connected disability benefits. It means that veterans who can link their current hearing loss to service can have their claims promptly adjudicated. 
  • Another time consuming issue for VA adjudicators is deciding whether a veteran who has applied for service-connected disability benefits for PTSD was exposed during service to a stressful event.  The entitlement criteria should be simplified through a rule requiring VA to agree that a veteran suffered from a stressful event during service if the  veteran served in a combat zone and submits a sworn statement that he or she suffered from a stressful event while in that combat zone.
  • Under current law, whenever the claimant submits additional evidence after submitting a notice of disagreement to appeal an RO denial of benefits, the RO must readjudicate the claim by reviewing all of the evidence in the claims file, writing a new decision, and sending it to the claimant – even if the veteran intended the new evidence to be reviewed by the Board of Veterans’ Appeals in the first instance.  The system should be streamlined to avoid unnecessary and repetitive decisionmaking through a rule requiring VA to provide the claimant an opportunity to choose in writing whether the claimant wants the RO or the BVA to consider the new evidence in the first instance. 

Other streamlining ideas that deserve a fair hearing are:

  1. Permit appellants the option to either appeal to the Board of Veterans’ Appeals or appeal directly to the Court of Appeals for Veterans Claims (AVC ) after a Decision Review Officer decision.
  2. Reduce the percentage evaluations under any DC to fewer levels than currently exist (but not eliminating  a zero percent evaluation);
  3. Limit the number of decisions (or set a time certain) in which a RO can render decisions prior to the time a case must be submitted to the BVA; and
  4. Limit the number of claimants any one advocate can represent at any one time.

Thank you for permitting NVLSP to testify on such an important issue.