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 thirty years. We publish numerous advocacy materials, recruit and train volunteer attorneys, train service officers from such veterans service organizations as The American Legion and Military Order of the Purple Heart in veterans benefits law, and conduct 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 2,000 claimants before the Board of Veterans’ Appeals 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 and trains volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative.  In addition to its activities with the Pro Bono Program, NVLSP has trained thousands of veterans 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. 

It is clear that the quality of VA adjudications is not satisfactory and is a major contributor to the size of the backlog. Because many claims are improperly denied, because many VA adjudicators are inadequately trained, because many VA regional offices are improperly managed, because many VA regional offices are inadequately staffed, and because VA Central Office management has not acted to fix these problems in any meaningful way, many veterans and other claimants for VA benefits have to file unnecessary appeals, wait several years for a BVA remand, and wait for the VA to obtain evidence that should have been requested during the original adjudication of the claim. These appeals clog the system and create unneeded work for the VA. Of course, it would have been better for the VARO to do the work correctly the first time.

NVLSP believes that the quality of VARO adjudications is much worse than what is reported by the VA. Valid indicators of the poor quality of adjudications performed by the VAROs are the remand and reversal statistics produced by decisions issued by the Board of Veterans’ Appeals (BVA or Board) and decisions issued by the U.S. Court of Appeals for Veterans Claims (CAVC).

BVA statistics provided by the Board for FY 2009 reveal that Board decided over 48,000 appeals. The Board granted additional benefits in 24 percent of the appeals and remanded 37.3 percent of these appeals back to the VAROs. Therefore, 61.3 percent of the VARO decisions that were appealed and decided by the BVA were either reversed or remanded. These statistics are about 4 percent worse than the statistics I reported to you in 2008.

The news gets worse. The BVA, in its rush to make final decisions and to avoid remands quite often prematurely denies claims that should have been remanded.  The CAVC in a large number of appeals finds fault with how the VA processed the claim and remands the case back to the VA to correct claims processing errors. The CAVC reports that of the 3,270 merits decisions it issued in fiscal year 2009, it affirmed the BVA decision in less than 20 percent of the cases. In over 80 percent of all the BVA decisions appealed to the CAVC and decided on the merits, the CAVC either reversed or remanded the BVA decision

Even Chief Justice Roberts was startled when he learned that in litigating with veterans before the CAVC, the government more often than not takes a position that is substantially unjustified. These statistics are shocking and revealing. The VA is required to conduct ex-parte, non-adversarial claims adjudications in a veteran friendly environment.  (38 U.S.C.  5107(b), 38 C.F.R.  3.102)  and provide veteran claimant’s with a non-adversarial adjudication system.

The results of the Legion/NVLSP quality reviews continue to be discomforting. The American Legion/NVLSP team usually spends a week in a VARO reviewing the quality of recently adjudicated claims where The American Legion represented the veteran. The results of these quality reviews reveal that in many instances claims are improperly denied or benefits are not paid at the proper rate because the RO was more concerned about claiming work credit and reducing the VARO backlog than taking the time to develop and analyze the claim properly. The Legion team generally finds a much higher error rate that the 12 percent generally reported by STAR.

The good news is that most of the VA service center: managers, coaches, decision review officers, and raters that we have interviewed on these many quality reviews are sincere when they mention the need for quality adjudications. We have, however, met many VA regional office officials who are free to admit that their main focus is on production, not quality.

INDEPENDENT QUALITY REVIEWS

During the past several years the National Veterans Legal Services Program (NVLSP) has performed, on behalf of The American Legion and several state departments of veterans' affairs, quality reviews of decisions issued by several VA Regional Offices (ROs). Our conclusion, based on these reviews and on information received at our service officer trainings, is that although the VA is to be commended for initiatives to stop blatant work measurement (end-product) cheating and to emphasize quality, the most needed change—full and fair adjudication of veterans' claims—has not become a reality.

Essentially, while NVLSP commends VBA for its quality initiatives, we are forced to conclude that these initiatives combined with the STAR program have not achieved the desired result.

Premature Adjudications Resulting in Adverse Decisions

The most important and pervasive problem facing veterans seeking VA disability benefits is the eagerness of some ROs to adjudicate claims before all necessary evidence has been obtained.  For example, some ROs 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.

We certainly believe that claims for VA disability benefits should be accurately adjudicated in a timely manner.  However, because of a management emphasis on timeliness, or a perceived emphasis on timeliness, some VA adjudicators appear to believe that they are pressured to make premature final decisions.  In most instances, we have discovered that a decision made prematurely is likely to take the form of a denial of benefits rather than an award of benefits.

Let us make something very clear:  The timeliness of VA adjudication is but one factor in the overall assessment of the VA disability claims adjudication system.  We realize that the overall timeliness statistics provided by the VBA show that VBA has not met its goal to reduce the time it takes to adjudicate claims for disability benefits.  Even though the VA has not met its goal in this respect, we urge that you not overemphasize timeliness to the detriment of quality.  It does veterans little good to have their claims promptly, but inaccurately, denied. The errors found by STAR and the subsequent trainings based on STAR findings have not significantly improved this situation.

One may wonder why VA adjudicators would want to prematurely deny claims.  The answer lies in the VA work measurement system.  When a claim for VA benefits is prematurely and inaccurately denied, many veterans submit new evidence to reopen their claim.  The VA considers the new evidence a second claim and the employee earns double work credit.  Adjudication officers, now called service center managers, have informed us off-the-record that they feel pressured to prematurely adjudicate claims because they expect other ROs will do the same?and they want to show that their productivity and timeliness is as good as other ROs.

The VA work measurement system should encourage a timely and accurate adjudication, not just a timely adjudication. Section 2 of HR 3047 would change when VA regional offices (VAROs) can claim work credit, and was a good bill that would have helped to accomplish this goal. NVLSP looks forward to reviewing the overdue VA report that was mandated by PL 110-389.

Adversarial Attitude

Our quality review has identified a systemic attitude problem in some ROs, which may take one of several forms.  One example is that despite the general tendency to deny prematurely, some ROs "develop to deny."  That is, these ROs consistently seek to develop negative evidence in cases where all the evidence of record before the RO, without further development, would reasonably support the grant of benefits. 

Another attitude problem is that some ROs have biases against certain types of VA claims for benefits.  For example, veterans seeking service connection for mental conditions, entitlement to individual unemployability benefits, or entitlement to compensation based upon secondary service connection, in some instances, have to jump over a higher bar than those who file other types of claims.

In addition, some ROs either refuse to consider or are unaware of beneficial statutes in Title 38, United States Code.  For example our quality reviews have found that 38 U.S.C. § 1154(b), which provides in most cases that the statement of a combat veteran about an injury that occurred during combat will be accepted as true even though there is no official record of the injury, is sometimes conspicuously disregarded.

Communication Problems

In many cases, the VA’s communication with its veteran-claimants causes real problems.  For example, VA notifications often fail to provide an adequate explanation of the reasons and bases for the adverse VA determination. Other communication problems noted by NVLSP are:

• Inadequate development letters (development letters are sent by the VA to the veteran and his or her representative, asking for further information or evidence) that do not comply with VA's guidance that letters should clearly tell the claimant what evidence is needed and what exactly has to be done to establish entitlement to the benefit sought (see M21-1, Part III, para. 1.04a.); and
• Telephone communication with the veteran that is not monitored or sanctioned by the veteran’s representative (the VA does not even inform the representative that it is about to contact the representative’s client).

Widespread Errors

The following is a list of a systemic pattern of errors that we have noticed during our quality review checks.  These errors are:

• Assignment of erroneously low disability ratings for service-connected mental conditions;
• Erroneous denial of claims for service connection for mental conditions;
• Failure to consider 38 U.S.C. § 1154(b);
• Erroneous denial of claims of individual unemployability;
• Inadequate requests for medical opinions (for example, the standard of proof in the VA claims process is rarely explained to VA doctors, and in many instances conclusions regarding critical facts are not communicated to doctors who are asked to provide medical opinions); and
• Non-responsive VA examination reports (for example, some VA examiners do not comply with the AMIE protocol, and other examiners fail to respond to specific questions), coupled with the acceptance of these inadequate examination reports by ROs.

In general, there is a lack of coordinated local (RO) quality control and a subsequent failure to act on recognized patterns of errors.

NVLSP Recommendations

Based on the foregoing observations, NVLSP makes the following suggestions:

• VA's work measurement system should be altered so that quality as well as timeliness are twin concepts that together drive the system.
• To provide VA quality control with "teeth" and prevent end-product and work measurement abuses, an aggressive independent quality control should be performed.
• VBA should conduct regular meetings with its stakeholders to inform them of any actions VBA has taken to correct systemic adjudication problems.  The stakeholders should be informed about the patterns of errors identified nationally, the ROs where there are significant problems, VBA's plans to correct these problems, changes in management, progress reports on previous initiatives, and an invitation for the stakeholders to participate and coordinate in the correction of problems.
• VA should institute a system of awards and disincentives for managers and adjudicators.  VA managers and adjudicators who perform accurate and timely work should be rewarded. Managers who do not perform adequately should be appropriately chastised.
• VA employees who do a good job should be paid a reasonable salary, receive bonuses and be promoted.
• VA management should more clearly communicate with its employees what it wants from them.  If management focuses on quality as well as efficient work, veterans will be better off.

NVLSP acknowledges that the adjudication of claims for VA benefits is very complicated. However, we believe the stakeholders want to help correct adjudication problems.  We would be happy to meet regularly with the VA to talk about the problems we have identified and suggested solutions.

We would like to commend VBA managers for initiatives in reducing outright end-product and work measurement dishonesty and efforts to emphasize quality.  While these efforts are commendable, it is time to see results. 

Our experience has taught us that VA managers are reasonable people who want to do the right thing.  These managers care about veterans and know that the claims adjudication system is not working properly.  To help these managers we ask you to encourage the VA to make at least the most necessary changes?alter VA's work measurement system, institute an aggressive quality control program, and support its efforts to coordinate with its stakeholders.

We appreciate the opportunity to provide the subcommittee with this testimony.

Thank you.