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 1,000 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 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. 

NVLSP has been asked to testify about the quality vs. quantity tension that exists in almost every production system – in the production of televisions, in the production of automobiles and in the production of decisions on claims for VA disability benefits. Television and automobile companies would like to produce as many products as quickly as they can; however their need for production is tempered by their certain knowledge that if they produce automobiles or televisions that have lousy quality people will not buy their products because consumers seeking televisions or automobiles have other choices. But veterans seeking VA disability benefits can only turn to the VA. They are stuck with the quality of the product the VA produces.

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.

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.  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 stakeholders and 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 band aids (such as: paper-free or electronic claims processing, and a return to the team adjudication approach) will not be enough to fix the problem.

NVLSP has learned that the Veterans Benefits Administration is considering changing how its raters and adjudicators are evaluated, and we eagerly anticipate reviewing these changes once they are final. We, however, advise the Veterans Benefits Administration not to simply make cosmetic changes to the quality, timeliness and output (production) standards for VSRs and RVSRs and expect significant improvement. For example, increasing the quality or accuracy standard from 83 percent to 85 percent for a GS-9 adjudicator could be considered just a superficial change because the current crop of GS-9 adjudicators are having trouble meeting the current 83 percent accuracy rate goal. Unless VBA changes the current system, a system that rewards VA managers for premature denials, there will be no substantive change in the quality of work performed by the VA regional offices.

In the opinion of NVLSP, the current VA employee and work management systems reflect a system that was created to serve the needs of the bureaucracy rather than the needs of the veteran. Veterans do not care about the VA need for: work credit; for productivity statistics; and for timeliness statistics. From the point of view of a veteran claimant it is just one claim even if the VARO improperly adjudicated his claim five times and the BVA remanded it three times over the course of ten years. The primary goal of VBA should be to provide the best service to veterans. It makes sense that the VA work measurement system should reflect and support that goal. What is easiest for the VA bureaucracy is not necessarily best for veterans.

NVLSP suggests that final work credit should not be awarded until the appellate period expires or when the BVA makes a final decision. That would encourage the VAROs to completely and correctly adjudicate claims at the earliest possible time. It would also incentivize VA managers to encourage their adjudicators to “do the claim right the first time” because a correct, complete adjudication would be in the best interest of the VA manager.

Therefore, NVLSP suggests that the VA restructure its work credit and work management systems to reflect the needs of its veteran claimants and then restructure its bureaucracy so that veterans can be best served. The VA needs to balance its competing needs for timeliness and production with the need to provide quality service to its claimants.

I. The Unfair VA Work Measurement System

The current VA work credit system prevents the fair adjudication of many claims for VA benefits. The current VA work credit system needs to be overhauled because it rewards VA managers and adjudicators who claim multiple and quick work credit without 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.

No matter how much the average VA employee wants to help the client population, the VA decision-making culture, fueled by the VA work measurement system, penalizes many VA adjudicators for doing a good job. The VA has created a work measurement system for deciding critically important claims that is driven by weighty incentives to decide claims quickly.  How the VA measures its work and evaluates the performance of its employees continues to have a major impact on the adjudication of claims for veterans 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 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. 

II. The Impact of Judicial Review

The VA claims processing (or claims adjudication) system has been exposed by judicial review. To say there is a crisis in VA claims adjudication is an understatement. Statistics from the Board of Veterans’ Appeals (BVA) and the U.S. Court of Appeals for Veterans Claims (CAVC) show that nationally, for FY 2009, over 60 percent of all VA regional office appeals reviewed by the BVA were reversed or remanded and over 80 percent of CAVC decisions on the merits reversed, or remanded BVA decisions. Please note that for FY 2008 the CAVC reversed and remanded only 63 percent of all merits decisions.

Based on the experience of NVLSP (over twelve years of quality reviews, in conjunction with The American Legion, of  over 40 different VA regional offices combined with extensive NVLSP representation before the CAVC), the most egregious VA errors are a result of premature adjudications. For example, many errors identified by Legion quality reviews reveal that VA adjudicators failed to even try to satisfy its statutory duty to assist the claimant by obtaining the evidence needed to substantiate the claim, and incorrectly accepted and prematurely denied claims based on inadequate evidence (especially inadequate VA medical examinations).

I have been told by a variety of VARO officials that because of pressure to produce end products and reduce backlogs, they intentionally encourage the premature adjudication of claims. This statement is based on my experience as a VA employee, and based on my experience as a member of the Legion quality review team.

Fixing the VA work credit system is a topic that is near and dear to my heart. I have been involved in various aspects of veterans law (working for the VA and then NVLSP) for about 35 years. My experience tells me that unless the system is corrected most well-meaning attempts to improve VA claims adjudication will not be successful because the driving force in VA adjudication will continue to be claiming quick work credit.  

III. The Inadequate Quality of VA Adjudications Is a Major Influence on the Size of the Backlog

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.

The VA is now receiving many claims submitted by OIF and OEF veterans. These claims will obviously increase the backlog and increase VA workload. Dealing with this wave of claims will become especially daunting if many of these claims are improperly denied in an effort to artificially decrease the backlog and improve VA manager’s timeliness and productivity statistics. This makes it even more important that the VA adjudication system be improved now.

Potential Solutions

The VA work measurement system has to be overhauled. H.R. 3047 which, in Section 2 would change when VA regional offices (VAROs) can claim work credit, was a good bill that would have accomplished this goal. NVLSP looks forward to reviewing the overdue VA report that was mandated by PL 110-389.

The VA needs to acknowledge the complexity of its claims adjudication system and continue to increase the number of adjudicators to work these claims. 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 grade levels of VA raters and Decision Review Officers should be raised and these employees should be held accountable for the quality of their work.
• Even though additional adjudicators have been hired, Congress needs to continue to provide additional funding for more adjudicators if the workload requires more adjudicators. The additional adjudicators, once properly trained, should help prevent the VAROs from brokering cases (sending cases from one VARO with too much work to another VARO).  In the opinion of NVLSP, brokered cases are less accurately adjudicated than most cases and cause continuing problems for the originating VARO.
• The VA should consider going back to the “team” concept in the VAROs.
• 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 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 stress that NVLSP is not demanding perfection from VA managers and adjudicators. NVLSP, however, feels that unless the VA changes the way it counts its work, there will be no significant improvement.

Thank you.