Addressing the Backlog: Can the U.S. Department of Veterans Affairs Manage One Million Claims?.
ADDRESSING THE BACKLOG: CAN THE U.S. DEPARTMENT OF VETERANS AFFAIRS MANAGE ONE MILLION CLAIMS?
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
JUNE 18, 2009
SERIAL No. 111-30
Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE
For sale by the Superintendent of Documents, U.S. Government Printing Office
CORRINE BROWN, Florida
STEVE BUYER, Indiana, Ranking
Malcom A. Shorter, Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records of the Committee on Veterans' Affairs are also published in electronic form. The printed hearing record remains the official version. Because electronic submissions are used to prepare both printed and electronic versions of the hearing record, the process of converting between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process is further refined.
C O N T E N T S
June 18, 2009
Addressing the Backlog: Can the U.S. Department of Veterans Affairs Manage One Million Claims?
U.S. Department of Veterans Affairs:
Lieutenant General James Terry Scott, USA (Ret.), Chairman, Advisory Committee on Disability Compensation
Prepared statement of General Scott
Michael Walcoff, Deputy Under Secretary for Benefits, Veterans Benefits Administration
Prepared statement of Mr. Walcoff
U.S. Department of Defense/U.S. Department of Veterans Affairs Interagency Program Office, Rear Admiral Gregory Timberlake, SHCE, USN, Acting Director
Prepared statement of Admiral Timberlake
American Federation of Government Employees, AFL-CIO, Michael Ratajczak, Decision Review Officer, Veterans Affairs Cleveland Regional Office, Veterans Benefits Administration, U.S. Department of Veterans Affairs
Prepared statement of Mr. Ratajczak
American Legion, Ian de Planque, Assistant Director, Veterans Affairs and Rehabilitation Commission
Prepared statement of Mr. de Planque
Bohan, David, Gladstone, OR
Prepared statement of Mr. Bohan
Disabled American Veterans, Kerry Baker, Assistant National Legislative Director
Prepared statement of Mr. Baker
Service Women's Action Network, Rachel Natelson, Esq., Legal Advisor
Prepared statement of Mr. Natelson
Veterans of Foreign Wars of the United States, Robert Jackson, Assistant Director, National Legislative Service
Prepared statement of Mr. Jackson
MATERIAL SUBMITTED FOR THE RECORD
Post-Hearing Questions and Responses for the Record:
Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance and Memorial Affairs, Committee on Veterans' Affairs, to Ian de Planque, Assistant Director, Veterans Affairs and Rehabilitation Commission, American Legion, letter dated July 20, 2009, and response letter dated August 17, 2009
Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance and Memorial Affairs, Committee on Veterans' Affairs, to Kerry Baker, Assistant National Legislative Director, Disabled American Veterans, letter dated July 20, 2009, and DAV responses
Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance and Memorial Affairs, Committee on Veterans' Affairs, to Lieutenant General James Terry Scott, Chairman, Advisory Committee on Disability Compensation, U.S. Department of Veterans Affairs, letter dated July 20, 2009, and response letter dated August 14, 2009
Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance and Memorial Affairs, Committee on Veterans' Affairs, to Marilyn Park, Legislative Representative, American Federation of Government Employees, letter dated July 20, 2009, and AFGE responses
Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance and Memorial Affairs, Committee on Veterans' Affairs, to Michael Walcoff, Deputy Under Secretary for Benefits, Veterans Benefits Administration, U.S. Department of Veterans Affairs, letter dated July 20, 2009, and VA responses
Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance and Memorial Affairs, Committee on Veterans' Affairs, to Rear Admiral Gregory Timberlake, SHCE, USN, Director, DoD/VA Interagency Program Office, U.S. Department of Defense, letter dated July 20, 2009, and Admiral Timberlake's responses
ADDRESSING THE BACKLOG: CAN THE U.S. DEPARTMENT OF VETERANS AFFAIRS MANAGE ONE MILLION CLAIMS?
Thursday, June 18, 2009
U. S. House of Representatives,
Subcommittee on Disability Assistance and Memorial Affairs,
Committee on Veterans' Affairs,
The Subcommittee met, pursuant to notice, at 6:38 p.m., in Room 334, Cannon House Office Building, Hon. John J. Hall [Chairman of the Subcommittee] presiding.
Present: Representatives Hall, Halvorson and Lamborn.
Mr. HALL. Good evening, ladies and gentlemen. The Committee on Veterans' Affairs Disability Assistance and Memorial Affairs Subcommittee hearing on "Addressing the Backlog: Can the U.S. Department of Veterans Affairs (VA) Manage One Million Claims" will now come to order.
I would ask for everyone to rise for the Pledge of Allegiance. Flags are located at both ends of the room.
[Pledge of Allegiance.]
Mr. HALL. Thank you. First of all, I would like to apologize for the lateness of the hearing. I know you have been waiting here for over 4 hours, but there were unusual measures being taken on the floor.
Tonight, some Members felt that we should vote three times on measures that were already passed, including their own amendments, and revote and then reconsider the revote of those measures, and it is for that reason that this hearing is starting now instead of at 2:00 p.m., as scheduled
Having said that, I will tell you that the Members of this Subcommittee convene today to conduct an oversight hearing on the record number of claims facing the VA, now approaching one million. This is a problem that has plagued VA and the veterans it is supposed to serve for years.
Veterans applying for the very benefits that they have earned through sacrifice to our country have been stuck languishing in a growing backlog. Some of these veterans have been waiting months, years, and in some mind-boggling cases, even decades. Is this how America fulfills its promise to our veterans?
When men and women sign up to put on the uniform and defend our country, they sign a contract. We need to make sure that America is living up to our part of that contract. We must have a VA that is an advocate for veterans, not an obstacle; a VA that smoothes the way, not one that puts up roadblocks.
To add perspective before we begin, I want to offer some facts to reflect upon as we take up this discussion. There are approximately 23.5 million veterans living in America. Every year, the VA treats roughly 5 million of these brave men and women. Yet, as large as these numbers may seem, every year, 500,000 additional veterans file a claim with the VA so that they can begin receiving treatment and benefits.
Tragically, they are frequently delayed or even denied. They are delayed because of the broken system, denied because paperwork is lost and adherence to legal hurdles and requirements are placed above veterans' needs. Sometimes claims are delayed so long that veterans die or give up fighting the bureaucracy before the claim is processed. And now, as we will explore today, there are nearly one million veterans waiting in limbo as a result.
Make no mistake, this is not a new issue. I, and other Members of this Committee, have been focusing on this intensely because it is so vital to regain the trust of our veterans and provide them the treatment and disability benefits that they were promised.
During the 110th Congress, I convened 14 hearings on disability claims and appeals processing issues. As a result, we were able to successfully pass the Veterans Disability Benefits Claims Modernization Act last October, now Public Law 110-389.
This legislation essentially mandated that the VA modernize its disability claims processing system. This hearing will now mark the fourth time we will be addressing this subject during the 111th Congress. And while we yet again discuss the changes needed, veterans still suffer. They are waiting to have their claims and appeals processed. They are waiting for compensation. They are waiting for medical assistance and rehabilitation. They are waiting to take care of their families. They are waiting for a Nation to show its gratitude. These veterans do not deserve to have their requests for assistance languish in the VA's bureaucracy.
There must be a way to stem this tide. Veterans cannot wait any longer. The VA requires a cultural management change that can only manifest itself if it embraces the very reason it was enacted, which is to serve veterans.
As Chairman of this Subcommittee, I believe we have given VA the tools and the authority it needs to take the necessary steps. Secretary Shinseki has invoked these principles in stepping into the leadership of VA where VA would become an advocate, not an adversary of the veteran.
I am optimistic that today's witnesses can direct us toward this end. Their stories, like so many others, illustrate the need for change.
I certainly hope that we can learn from their experience. I know that the American Legion, Veterans of Foreign Wars (VFW) and Disabled American Veterans (DAV) have worked diligently, along with other veterans service organizations (VSOs), to address the disjointed practices that exist within VA that have lead to this situation.
I am eager to hear from the American Federation of Government Employees (AFGE) and the newly formed Advisory Committee on Disability Compensation, and I place a great deal of hope in your work and progress.
I also look forward to hearing from VA. I know that your claims processing system has improved in some respects. I also know that the one million figure reflects all of your inventory, not just compensation and pension. These facts notwithstanding, Congress, veterans and other stakeholders want to know what is the strategy that VA has for handling a workload approaching one million claims in a 21st Century manner.
And finally, I thank the VA and U.S. Department of Defense (DoD) for being here today to update the Committee on its progress in implementing Public Law 110-389, and the formation of the Interagency Program Office, along with President Obama's Joint VA, DoD, Virtual Lifetime Electronic Record (VLER) Initiative, and other information technology (IT) improvements to eliminate the problems inherent in a paper record. And this is something that Ranking Member Lamborn has been in favor of as well.
This is not an impossible task. A consensus exists. The wheels have already been set in motion. It is my hope that VA will transform itself into a modern veteran-focused system that can, in fact, process one million claims accurately and timely; one where veterans and their families no longer have to put their lives on hold while waiting for the much needed benefits they deserve.
I now yield to Ranking Member Lamborn for his opening statement.
[The prepared statement of Chairman Hall appears in the Appendix.]
Mr. LAMBORN. Thank you, Mr. Chairman, and thank you for holding this hearing to discuss VA's disabilities claims processing system and its ongoing efforts to improve timeliness and accuracy.
The struggle to overcome the backlog of disability claims has weighed upon the Department for several years now. Despite multiple hearings on this issue, as well as significant increases in VA's budget, workforce and information technology resources, signs of progress are subtle at best.
We have addressed this situation from multiple angles. Funding for VA programs has increased steadily since 1995. There has been a 75-percent increase in the number of full-time claims workers in the last 5 years. We have made a strong push toward modernizing the VA claim system so that it is electronic rather than paper based, as was mentioned earlier.
And we have emphasized and reemphasized the need for training and accountability, yet VA seems to be overwhelmed, and it is well past time for frank assessment of what is going on. VA needs to be candid and forthcoming about what it sees as the problem. Otherwise, we cannot help fix it.
I understand that along with the aforementioned increase in funding, VA is receiving a record number of claims, along with an increased number of complex issues on each claim. While these factors obviously pose a challenge, I do not see them as insurmountable. I believe that VA has the resources and the authority necessary to adjudicate claims quickly and accurately, and I expect it to do so.
If this is a misperception, I must know why. Every one claim represents an American veteran. Their patience and mine is growing very thin on this issue. If we do not fix the problem now and merely pass it on to a future generation, we will all be very much ashamed and deservedly so.
I am certain everyone here shares my frustration, so let us put the cards on the table and figure out what we can do.
I want to thank the witnesses for their service to our country and for their testimony today and I look forward to our discussion.
Mr. Chairman, I yield back.
[The prepared statement of Congressman Lamborn appears in the Appendix.]
Mr. HALL. Thank you, Ranking Member Lamborn.
I would like to remind all of our panelists that your complete written records have already been made a part of our hearing record. Please feel free to limit your remarks so that we may have sufficient time to follow up after all the time you have been waiting. We do not need to go longer than necessary because your statements are already submitted.
And on our first panel, we would like to welcome Mr. Ian de Planque. Is that the correct pronunciation, sir? Assistant Director for the Rehabilitation Commission of the American Legion; Mr. David Bohan, Veteran from Gladstone, Oregon; Mr. Robert Jackson, Assistant Director, National Legislative Service for Veterans of Foreign Wars of the United States; Mr. Kerry Baker, the Assistant National Legislative Director for the Disabled American Veterans; and Ms. Rachel Natelson—is that correct—Natelson—Ms. Rachel Natelson, Legal Advisor for Service Women's Action Network (SWAN).
Welcome and, Mr. de Planque, you are now recognized for 5 minutes.
STATEMENTS OF IAN DE PLANQUE, ASSISTANT DIRECTOR, VETERANS AFFAIRS AND REHABILITATION COMMISSION, AMERICAN LEGION; DAVID BOHAN, GLADSTONE, OR (GULF WAR VETERAN); ROBERT JACKSON, ASSISTANT DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; KERRY BAKER, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; AND RACHEL NATELSON, ESQ., LEGAL ADVISOR, SERVICE WOMEN'S ACTION NETWORK
Mr. DE PLANQUE. Good evening, Mr. Chairman, Ranking Member Lamborn, and the Subcommittee. On behalf of the American Legion, I would like to thank you for providing us with the opportunity to offer testimony regarding the looming backlog and what can be done to handle the volume as it stands, as well as to reduce or to improve the situation for veterans to come.
It is often said, and I think this may be particularly relevant today, that the definition of insanity is to repeat the same action over and over again expecting a different result. We are at a point in the claims process in the VA, where simply increasing the volume of effort with the wrong tools in the existing systems can't be a solution that will improve the current state of affairs. We need to look at the system with fresh eyes and determine how a new outlook can help VA with the daunting task of managing a backlog such as this.
This is not to say that an addition of workforce is not beneficial. Indeed, they have increased the workforce and that is a potential benefit. However, merely having more people making the same mistakes over and over again does not eliminate the problem of remands, appeals and cases that continue to bounce back and forth and get lost in the system.
As we mentioned in the past, the way VA currently counts their workload does not encourage accuracy; it encourages volume. If a job is worth doing, it is worth doing right. Do the job right the first time. To count work credit is the same whether it is performed properly or whether details are overlooked, encourages corners to be cut when the pressure is on an employee.
In the past, it has been proposed that VA count work credit when a claim reaches a final decision in a manner that the encouragement will be to perform every aspect of the claim correctly, since appeals over missed technical details, which make up a large percentage of the claims returned from both the court and the Board of Appeals, will only hamper the process and create mere lengthy delays in the claims process.
To examine the figures, as I stated, from both the Board of Veterans' Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC), it is pertinent to note that the vast number of the claims remanded through the system are for simple error, procedure, oversight, things that could be avoided with accountability and attention to detail, lack of proper examination, lack of fulfillment of the duty to assist veterans, even simple errors in letters sent to veterans all can be corrected if the credit were counted for doing the job right, not simply for shuffling the paper on to the next desk.
All too often, the claims on appeal are further delayed as they bounce back and forth between the Board of Veterans' Appeals and the Appeals Management Center (AMC) because the terms of the remands are not followed. Simply doing it right the first time can alleviate this and get the claims completed and out of the system.
The development of claims presents another opportunity for improvement. Many claims are overdeveloped when the simple facts—the grant of service-connection are already present. Needless exams and searches for extra records continue to drag out the process.
Furthermore, regarding development, the amendment of the understanding of section 1154, which has been discussed in other legislation, can streamline and reduce a great deal of the burden of additional development on the VA, a haste in the process of decision in the claims of veterans who are claiming incidents in combat zones.
These are not unique to the current situation. Diabetes claims due to exposure to Agent Orange are often needlessly developed when the presumptions of exposure in connection have already been established and the veterans have already submitted private medical records indicating the severity of their condition is sufficient to rate their claims. They are sent for redundant VA exam, rather than closing out a claim early when they have already been given all the tools they need to grant the claim.
One further area that, has received attention of late and has been a sign of improvement, though we must continue to push for improvement of late, but we must continue to push for improvement, is the ability to accurately and rapidly obtain the requisite records needed to adjudicate a claim. Confusion over locations of veterans' military records, lack of ability to communicate between different agencies and to provide rapid access to the necessary information, is something that is improving and can continue to be improved and must be a focus of attempting to overhaul the system.
Also present today is a veteran who can speak to this very problem. In the course of compiling a three-part story for The American Legion Magazine, we were made aware of Mr. David Bohan, who is seated next to me, a veteran of the first Gulf War, who has firsthand experience of just how frustrating the process can be. He is here today to tell his story in the hopes that the insight from the perspective of a veteran on the inside can help us come to a better understanding of where the fail points are and where we should work to improve the efficiency of the process. I hope you listen to his compelling story.
I thank you on behalf of the American Legion. And as always, we stand ready to answer any questions you may have.
[The prepared statement of Mr. de Planque appears in the Appendix.]
Mr. HALL. Mr. Bohan, you are now recognized for 5 minutes.
Mr. BOHAN. Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to appear today on behalf of American veterans, including the veterans of the first Gulf War with whom I served. The topic which you are addressing today, the VA's ability to handle the claims backlog, is very important to all of us who serve.
I am David Bohan. I joined the U.S. Army right out of high school in 1987 and served with the 2nd Battalion of the 16th Infantry Division in the Gulf War. As some of you may know from the current series in The American Legion Magazine, our outfit was first across the breach in the ground war. My platoon refueled M-1 tanks on the front lines. We hauled tank trucks full of fuel across the desert to the tanks, despite cluster mines and Scud missile attacks. You don't forget the feelings you get when the Iraqi Army sends a Scud into your camp. I received the bronze star for my noteworthy actions.
I served 6 years and left Fort Riley, Kansas, the moment my discharge was completed in December of 1992. Like thousands of other Gulf War One veterans, I was not offered any transition assistance programs when I was discharged. No one suggested that I get copies of records of any medical treatment I received in the military. There was no mention of VA benefits of any kind, whether you are talking about hospital care or counseling for post-traumatic stress disorder (PTSD). All I wanted to do was get home to Oregon as quickly as possible. This has continued to cause problems for me and my ability to get VA benefits.
I spent most of the next 15 years trying to erase my memories of the war with alcohol. These were terrible years. Nothing worked. I had jobs at a variety of freight companies. I was married and divorced. Most of all, I drank. This was very hard for my family, but my mother and father stood by me. I didn't realize it at the time, but I had severe post-traumatic stress disorder.
After an automobile accident involving a police officer last year, luckily no one was injured, I realized I had to stop drinking. I checked myself into a Roseburg, Oregon VA Medical Center inpatient alcohol treatment program. I've been clean and sober ever since and I am managing an apartment complex for my father. I am lucky. Many veterans do not have the fantastic family support that I have. I don't know where I would be today without them.
A counselor at the VA in Roseburg suggested I pursue a claim for my PTSD, for injuries to my left foot during the time I was stationed at Fort Riley, Kansas, and recommended I contact the American Legion for help.
The VA system is confusing, overwhelming and is not at all friendly to veterans. So many of the people at VA are not—oh, I am sorry—so many of the people at VA are not veterans and don't understand what we are going through. You end up feeling like some of them care more about their rules and regulations and paperwork than they care about the veterans.
We veterans don't have any idea where this piece of paper or that record is after all of the time. Regarding military records, we veterans don't have any idea where our records are kept, and apparently, the military doesn't know either. I was up late last night digging through boxes, looking for records to prove I was in the Army, that I was in the Gulf War, and that I had been in combat and that I had all of the necessary stressors to qualify for VA assistance. The memories from going through all of those materials from my Army days was very painful.
With the help of American Legion Service Officer, Gregg Demarais, I received a PTS rating from the VA. But the issues with my foot have not yet been addressed. My medical records from Fort Riley are missing. I spent hours on the telephone, I have sent faxes. I have even sent e-mails. But after months of trying, no one can find my records.
The hospital at Fort Riley says they do not have the records of the surgeries on my foot. I have contacted the National Personnel Records Center in St. Louis many, many times, but I still do not have the records of multiple surgeries on my foot.
Until I can obtain those records and present them to VA, I cannot pursue the rest of my case. This is very frustrating and very time consuming.
I understand why so many people just give up. We need to better assist veterans in need. There needs to be improvement in the communication between VA and other agencies in tracking down records. Whether it is through technology or something else, they need to be able to do it faster and more accurately so that they can avoid situations that cause needless delays by sending requests back and forth, over and over again, with no answers to provide to veterans.
The system can work, however. Now that I am finally in the VA health care system, some good things have happened. Doctors operated on my arm and repaired nerve damage and restored feelings to my fingers. I am enrolling in college right now and I am going to pursue a business degree. I also try and help my fellow veterans get enrolled in the VA system and, where they need it, get into a drug and alcohol treatment program. I am happy to use my experiences to help, but I see many veterans go through the same frustrations that I have gone through.
I am proud of my service and I am grateful for the assistance that I have received. But there has to be a way to make this easier for all of us.
Thank you again for the opportunity to testify today. I look forward to any questions you may have.
[The prepared statement of Mr. Bohan appears in the Appendix.]
Mr. HALL. Thank you. Mr. Bohan, and thank you for your service to this country.
Mr. Jackson, you are now recognized for 5 minutes.
Mr. JACKSON. Mr. Chairman, Ranking Member Lamborn, Members of the Subcommittee, thank you for the opportunity to provide testimony before this Subcommittee on the VA claims processing system. The 1.6 million men and women of the Veterans of Foreign War appreciate the voice you give them at these important hearings.
Within 2 years of the conclusion of World War II, more than 16 million servicemen and women were released from active duty. Millions filed claims with the VA for compensation. Why wasn't the VA overwhelmed?
Perhaps it is time to recognize that better production and timeliness levels achieved by the VA in the 1950s and 1960s may very well have been accomplished because there was less attention paid to procedural rights and that the VA may have exhibited a rather cavalier attitude when it came to interpreting the law and its own regulations.
Whether you agree with either view of history, it is clear, the VA was able to make claim decisions quickly. Reexaminations were frequent and allowed VA to increase or reduce evaluations as disabilities worsened or improved.
Today, claims development takes longer. Quite simply, Congress recognized that past procedures and practices by the VA were not always veteran-friendly, did not adequately tell veterans what was needed and would often lead to decision based on less than all of the available evidence.
Decisions are longer because Congress decided that veterans should be told what evidence was considered and why benefits were denied or granted. Appeals take longer to resolve because of increased evidentiary and notice requirements, the introduction of additional review level and decision review officers in the need to satisfy all judicial mandates.
The fact is, there is nothing inherently wrong with any of these changes. Those decisions were all needed to fix recognized problems and abuses.
Having said that, how do you devise a system that allows VA to make decisions rapidly without increasing mistakes, is not costly either to the veteran or the American people and continues to provide veterans with the protections that have been built into the law over the past 60 years?
Jerry Manar, who is the VFW's Deputy Director of National Veterans Service, with assistance from the VFW staff and VA alumni, has developed a process that incorporates the best practices of a post-World War II claim system to make expedited provisional decisions based on existing records.
This proposal, which calls for the creation of a test program entitled "The Provisional Claims Processing Program," would grant benefits on limited information quickly, but with quality.
Limited to servicemembers leaving the Armed Forces or recently discharged veterans, evaluations would be based on existing evidence, understanding that benefits for some conditions may be denied when further development would enable VA to grant service-connection under existing law.
Conversely, it is also understood that benefits, based on existing evidence, may not be service connected when all evidence is eventually developed and considered. Consequently, a grant of benefits for any disability is not a grant of service-connection entitling the veteran to protections afforded by existing law and regulation.
Under this program, full development, a VA examination and a new decision would be required 4 years after the initial provisional rating. Provisional decisions made under this program would have no precedent value and service-connection for all disabilities, including any new condition the veteran chooses to place into contention, would be made during the review at the 4-year point.
This program would restore the rapid delivery of benefits based on current rating standards, while still maintaining veterans' rights under a system of protections carefully crafted by Congress over the past 60 years. It should dramatically increase decisions on original claims while allowing the bulk of VA's field staff to concentrate on resolving the existing backlog.
More importantly, this program would provide a win for new veterans. In exchange for agreeing to wait for a final decision, they would receive a provisional decision and benefits in a matter of weeks instead of more than 6 months. If properly structured, the VA could fulfill the promise it made with the Benefits Delivery at Discharge (BDD) program that a decision could be made prior to discharge.
Further, veterans have the right to choose which program they participate in after they know what the provisional decision awards. If they disagree with the provisional decision, they need not accept it. And, since they know that the current program may take 6 months or more to produce a decision, their conscious choice to accept the wait should reduce the number of complaints and consequent pressure on Congress.
Mr. Chairman, I will be more than happy to provide you and the Members of the Committee with this updated copy of the proposal.
This concludes my statement. I would be happy to respond to any questions you may have.
[The prepared statement of Mr. Jackson appears in the Appendix.]
Mr. HALL. Thank you, Mr. Jackson.
Mr. Baker, welcome, and you are recognized for 5 minutes.
Mr. BAKER. Thank you, Mr. Chairman and Ranking Member Lamborn. I am glad to be here today on behalf of the DAV.
As you know, the claims process is extremely complex and lengthy. The VA estimates that it will decide over 940,000 claims in 2009. I suspect that number will be closer to one million. This is encouraging since it is close to 200,000 more claims than it decided just 2 years ago, signifying that VA is certainly utilizing the additional staffing provided by Congress over that same period.
What is discouraging is that VA may actually receive just as many new claims as it decides this year, which is also close to 200,000 more than just a couple of years ago.
Short of growing VA's workforce indefinitely, there are no simple solutions to this problem. The DAV, nonetheless, believes it has some solutions.
To support that belief we have presented this Committee with DAV's 21st Century claims process proposal, which is intended to simplify the process while preserving resources and reducing expenditures.
Our proposal begins with the initial stages of the claims process and continues through the entire appellate process. Our recommendations are aimed at making efficient, a rather inefficient process, without sacrificing a single earned benefit.
They include, one, amending 38 U.S. Code, section 5103A(b) to indicate that VA will assist a claimant in developing private medical records when such assistance is requested by the claimant on a form prescribed by the Secretary; two, amending sections 5103 and 5103A to allow the VA to sua sponte, or on its own, waive all Veterans' Claims Assistance Act (VCAA) requirements when it determines that the evidence of record is sufficient to award all benefits sought; amending section 51—I am sorry—number three, amending section 5104(a) as well as section 3.2600 in title 38 of the regulations so the VA could issue appeal election letters at the same time as the initial rating decision; four, amend section 7105 to decrease the period in which a VA claimant may submit a timely notice of disagreement to the VA following the issuance of a VA rating decision from 1 year to 6 months but with the provisions added that you could extend for an additional 6 months without showing good cause and that you could equitably toll it if you are incapacitated mentally or physically at the end of that period. Those two issues are not part of the law at the current moment.
Number five, amend section 7104 in a manner that would specifically incorporate an automatic waiver of regional office (RO) jurisdiction for any evidence received by the VA, to include the Board, after an appeal has been certified to the Board, following submission of a VA Form 9, unless the appellant or his or her representative expressly chooses not to waive such jurisdiction.
These and other suggested changes could result in reduced pre-appellate stage processing times between 30 to 90 days and as high as a 3-year reduction for certain post-remand appellate cases.
Our written testimony contains many more details regarding these suggestions, to include how they could be incorporated into a new claims process further supported by a new electronic record and image scanning center.
Nonetheless, out of the three phases of our proposal, the legislative changes that I just mentioned must be completed now. They will result in immediate progress over the growing claims workload and will further pave the way for future improvements.
In closing, the VA will never be able to maximize its recent increases in staffing without making its processes more efficient. If such changes are made, the VA will see vast improvements in its entire claims process that are essential to achieving the broader goals of prompt and accurate decisions on claims.
Likewise, only then will the VA be able to incorporate training, quality assurance and accountability programs demanded by the veterans' community.
Mr. Chairman, it has been an honor to appear before you today and I look forward to any questions you may have.
[The prepared statement of Mr. Baker appears in the Appendix.]
Mr. HALL. Thank you, Mr. Baker.
And Ms. Natelson, you are now recognized for 5 minutes.
Ms. NATELSON. Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to present the views of the Service Women's Action Network concerning the rising backlog of VA benefits claims.
Although the benefits application process is labor intensive and emotionally taxing for all claimants, women veteran face particular challenges in obtaining disability compensation from the VA.
To begin, studies indicate an institutional bias in favor of claimants with combat experience, an advantage which disproportionately favors men. Not only do claim processors fail to understand the degree to which women are effectively, if not nominally, serving in combat positions, but they also fail to appreciate the extent to which servicemembers in non-combat occupations and support roles are exposed to traumatic events.
Among the most pervasive stressors experienced by military women are incidents of sexual assault and harassment. The prevalence of sexual assault in the military is hardly news, and has been the subject of a number of recent Congressional hearings and Pentagon reports. By some accounts, nearly a third of female veterans report episodes of sexual assault during military service, while 71 to 90 percent report experiences of sexual harassment.
These experiences are closely associated with PTSD in a variety of studies. In fact, military sexual assault is a stronger predictor of PTSD among women veterans than combat history. Likewise, studies indicate that sexual harassment causes the same rates of PTSD in women as combat does in men.
In spite of this correlation, the VA grants benefits to a significantly smaller percentage of female than male PTSD claimants. This disparity stems largely from the difficulties of substantiating experiences of military sexual assault, especially in a combat arena.
Under military regulations, for example, sexual harassment investigations are only retained on file for 2 years from the close of each case. While criminal investigations of sexual assault are better documented, 80 percent of assault victims fail to report the offense and over 20 percent of those who do file reports opt for a restricted mode that precludes official investigation.
Although training and reference materials for raters provide a great deal of guidance on how combat medals and commendations may be used to support PTSD claims, they make little mention of how to address the challenges of documenting military sexual assault as an in-service stressor. As a result, reviewers tend to rely on a limited group of behavioral changes in determining the validity of military sexual trauma (MST) claims, often denying them if they fail to conform to a rigid set of expectations. Many raters, for example, deny MST claims from veterans with distinguished service records based on the assumption that assault victims invariably decline in their job performance.
Perhaps most frustrating is the tendency of claim processors to ignore or second guess the evaluations of treating physicians within the VA health system, particularly with respect to mental illness. Despite the fact that the majority of my own clients have submitted MST diagnoses from VA counselors, most have received decisions indicating that they have failed to establish the condition, much less connect it to their service history.
By refusing to recognize the soundness of VA medical provider reports, reviewers both protract the application time line and compromise the healing process for claimants.
The Institute of Medicine (IOM) Committee on Veterans' Compensation, a panel of experts convened by the VA to examine PTSD compensation issues, has proposed a number of sound recommendations based on its research. The Committee has suggested that the agency collect gender-specific data on MST claim decisions, develop additional MST-related reference material for raters, and incorporate training and testing on MST claims into its rater certification program. The VA should implement these proposals in order to sensitize claim reviewers to the needs of assault and harassment victims.
In light of plans to create a comprehensive electronic records system for military personnel, the Department of Defense and the VA have an unusual opportunity to address the problem of documenting in-service incidents of sexual assault and harassment.
In order to ensure that records of harassment and assault complaints may be accessed in support of VA claims, the military should incorporate, upon request, such investigative files into the proposed Joint Virtual Lifetime Electronic Record. While such a step would not address the issue of under-reporting, it would at least improve the accessibility of existing records.
The VA should also establish a presumption of soundness for the diagnoses of its own treating physicians and counselors. Claim reviewers should not have the authority to second-guess evaluations by agency medical professionals or to discount VA treatment records in favor of one-time Compensation and Pension (C&P) exam results.
According to the IOM committee, C&P examiners have reported particular pressure to limit the time they devote to PTSD and MST evaluations, sometimes to as little as 20 minutes.
SWAN also supports H.R. 952, which would create a statutory presumption of service-connection for Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF) veterans with PTSD and traumatic brain injury (TBI). However, since statistics suggest that servicewomen are more likely to be sexually assaulted outside of combat zones than during deployment, we would propose extending such a presumption to all veterans who suffer from a traumatic event while in service.
According to the Pentagon's 2008 Sexual Assault Prevention and Response Office report, fewer than 10 percent of the assault incidents reported last year occurred in combat zones.
Thanks very much for your attention. I would be happy to answer any questions you might have.
[The prepared statement of Ms. Natelson appears in the Appendix.]
Mr. HALL. Thank you, Ms. Natelson.
I will recognize myself for a round of questions.
Mr. de Planque, there have been some concerns and misperceptions about the role of service-connection in being able to access VA health care. If a veteran is not service connected, then how likely is it that he or she will get turned down for VA health care treatment? Should veterans with claims pending adjudication be eligible for VA health care? And should mental health counseling be offered to all veterans enduring the stress with the VA disability claims processing system?
Mr. DE PLANQUE. In the sense of that, Mr. Chairman, it is actually, it is a slightly complicated issue and there have been a number of things that have changed, although they are attempting to bring them back forward.
In 2003, when the category 8 veterans were shut out of VA from treatment, it made it very difficult for them to receive treatment for medical conditions, and that is being phased back in.
However, veterans who are serving now in the present conflict are entitled to 5 years of VA health care after they demobilize, after they are discharged from the military, and it will run out after that point and it will—they will not be able to get health care for the conditions that are not service connected. They will not be able to get health care for the condition that are not service connected.
With regards to mental health care, in many of the VA outreach clinics, they are not in a position to be turning people away from trying to get the care they need, but they are not always capable of getting the full level of care that particularly severe cases of mental disorders which can arise.
It is possible to get some degree of health care within certain circumstances when you fall into certain categories as a veteran, but in terms of an all-inclusive group of veterans being able to receive health care if they are not service connected for a condition, then that is not the case.
Mr. HALL. I would ask you one more question, if I may, which is that some of the solutions highlighted in your testimony were already considered and enacted by Congress in Public Law 110-389. Do you think these provisions are sufficient or are there other legislative changes the Legion would like to see Congress enact?
Mr. DE PLANQUE. In some senses with the changes which have been enacted, they have all been enacted very recently and we are seeing promising signing, for example, with what VA is beginning to do with improving electronic communication and making forays into the IT solutions. They are showing promising signs, but it is still very, very early to determine how overall effective those will be.
As I have stated before, it would be beneficial to work with the changes that are creating improvements, but we don't want to just change the set of tools that continue to operate within the same system. If you are continuing to make the same problems but doing it electronically, that doesn't make it any better than if you are making the same mistakes and doing them on paper.
In terms of legislative solutions which could be brought forward, already up for consideration are as we mentioned in our testimony, the changes to the section 1154, which covers veterans, currently covers veterans who have engaged in combat in proving the occurrence of incidents that are consistent with combat and the expansion of it to combat zones, as we recognize the non-linear battlefield to modern warfare and that the documentation of all such incidents for all soldiers, not just soldiers who have infantry cross rifles and can get a combat infantry badge, not just soldiers who are wounded and receive a purple heart, which makes things obvious, but all the soldiers who are deployed to combat zones and experience these incidents, which are sometimes difficult to document.
So continuing to work towards that legislation and pass solutions on that front would be a great help in reducing a lot of the workload on VA because it would reduce a lot of their burden for overdeveloping. They would be able to grant the one point of a case and move on, and they wouldn't spend a lot of time needlessly developing.
Mr. HALL. Thank you, sir.
Mr. Bohan, once again, thank you for your testimony and your service, and it sounds like nobody from VA mentioned to you that you could file a claim, even though you were in treatment for over 15 years before you did file. Would your experience with this process have been easier if you had filed a claim right away?
Mr. BOHAN. Mr. Chairman, not knowing with the technology back then, at that point, I am assuming there would be road blocks also, as well, but that is hard to say because I did not file back at that time.
Mr. HALL. Fair enough. Thank you.
Mr. Jackson, I am interested in the provisional claims processing proposal that you mentioned in your testimony. Would you elaborate on how it would work practically by walking us quickly through the first steps of finality for a veteran who might file a claim under this system?
Mr. JACKSON. My pleasure, Mr. Chairman. What this does is it essentially is not a, it is not a permanent fix. What it does is bides times. What you are doing, you are allowing existing information to be used for a provisional rating. The veteran, then, if he or she decides that that rating is not what they think is sufficient, then they can continue the process that they normally would.
The goal of the provisional proposal that Jerry has created is to get claims, new claims through the system quickly, allowing the VA work force to work on the backlog. It is something that is not going to be a permanent fix, but is something that could certainly alleviate some of the workload.
Mr. HALL. Thank you very much, Mr. Jackson.
I will now yield to Ranking Member Lamborn for a round of questions.
Mr. LAMBORN. Yeah, thank you, Mr. Chairman.
And you all have very helpful and have had interesting things to offer today. But following up on the question that was just asked by the Chairman on the provisional suggestion, what recourse would a veteran have under this program if their condition worsens and they wanted an increased rating between the time they were initially rated and the final rating 4 years later?
Mr. JACKSON. The way the proposal is written currently, that once the veteran received the provisional rating, they are going to have wait for the 4-year point, so they will get the provisional rating. They either accept it. If they accept it, then they do a full development and an evaluation at the 4-year point, and if it is determined that there is more needed, then obviously that will come out at that time.
Conversely, if it turns out that the evidence shows that perhaps the provisional rating was a little bit high, then that is going to bear out as well.
But once the veteran decides, the way the proposal is written, once the veteran decides to take the provisional rating, they will have to wait until the 4-year point to have it changed. And it does not stop the veteran. Let us say the injury that they have received, the initial injury becomes worse. It does not stop that veteran from being able to show that the injury has worsened or the disease has worsened in that 4-year period of time.
Mr. LAMBORN. Now, conversely, could they see their compensation reduced and go in the other direction at the end of the 4 years?
Mr. JACKSON. Well, that would always—yeah, that would always be a possibility. It would be a possibility that the initial rating might have been too high and then it would have to be lowered, obviously, with the full developmental workup, the evaluation.
So it is conceivable that the veteran could see the benefit lessen.
Mr. LAMBORN. Okay. Thank you.
And for Mr. de Planque, I hope I said that correctly, you discussed at length the problems with brokering claims and how the quality of these claims is lacking. What would you propose the VA do to improve the quality?
Mr. DE PLANQUE. Thank you, Ranking Member Lamborn. And it's de Planque or de Planque. Both get used.
Some of the problems that we have seen in brokering, and these are all anecdotal with the American Legion and with National Veterans Legal Services Program (NVLSP). We travel and do reviews of regional offices and you can see a claim that gets brokered out that has, say, four issues and they take one small issue that is in it, rate that and defer the other three issues and send it back to the original office. Well, they get a work credit for where it is—has been brokered, but it has been sent back and the work isn't actually getting done.
In some cases it is, and the idea of pushing a workload to places that can accept it better is not in theory a bad thing, but it needs to be executed well. And one of the things that I spoke to in my oral remarks is the working towards a system where you are counting credit, where you are working credit for cases that have been done properly, cases that have been done completely, cases where it was done right the first time because that saves the VA from having to continue to process cases that are bouncing back and forth in the system.
And so that is what I would say. Go to that principle of regardless of where you are sending the claim, get it done right the first time and it won't bounce around in the system.
Mr. LAMBORN. And Mr. de Planque, how specifically would the VA reward the decision making that is done right the first time, which is, I think, what we are all after?
Mr. DE PLANQUE. That is correct. It was proposed in the past. I know there was a proposal at one point from NVLSP but there have been other things that are similar, to change the way that they count work credit. And in the short term, obviously, there would be a certain amount of upheaval with this and it would be difficult to measure as you change to any sort of new system.
But where work credit would not be granted until the case was finally decided and, therefore, if you are just passing along a case that is going to get remanded, that is going to have missing details and get appealed, you are not setting yourself up for success because you are setting up a case that is going to take a long time to give you work credit.
Whereas, if you do the details right and make it impossible to be remanded because there aren't details such as that, then you get the work credit faster because it is counted when the claim is finally decided.
Mr. LAMBORN. Okay. Thank you. Thank you all for being here and, like the Chairman said, thank you for your patience as well.
Mr. HALL. Thank you, Mr. Lamborn.
If I may, I would just like to ask Mr. Baker a question.
In listening to your testimony, I am reminded that over a year ago at a hearing we held on artificial intelligence and Dr. Randy Miller, Chair of Biomedical Bio-Informatics at Vanderbilt University, made similar observations about reducing the days to process claims by using clinical informatics, which is what your imaging scanning center would seem to do.
Have you also considered the idea that the scanned image should also be converted into a standardized electronically processable format? What is the feasibility of implementing the proposed centralized information system that you mentioned in your testimony?
Mr. BAKER. Well, Mr. Chairman, if you are talking about are we suggesting if you use something like an image scanning center, would you do more than just copy the document, would you have a workable format that could provide some form of a database and searchable tool, that would absolutely be preferable. It would allow people to search the claims file much, much easier than sitting there having to read, you know, a thousand pages on the computer.
The feasibility of that, I am afraid I just, I don't have the expertise. I don't know where VA is in their IT development, you know, if they could do something like that.
As I understand it, there are a lot of companies out there and processes out there that can capture that sort of data. I just don't know where VA is with that technology.
Mr. HALL. Thank you. Your plan also calls for a reduction in time from 1 year to 180 days of the time that a veteran can make an appeal, but then allows them the opportunity to ask for an extension. Other insurance programs have restrictions that do not allow an appeal after the due date.
Are there circumstances under which you could foresee a case being closed and appeal disallowed, and should there be a limitation on the number of times that a veteran can appeal the same condition without new evidence?
Mr. BAKER. I can see where one could get closed and disallowed if they allowed the 6 months to run out and they did not request an extension and they couldn't show any cause as to why their appeal should be equitably tolled. That would be no different than the appeal running in excess of the 1-year point right now. Only, right now they cannot request an extension and they cannot be equitably tolled. The courts have stopped short of addressing that issue with the appellate period.
So you know, we realized that the 6-month issue may not be met with a lot of favoritism up fron