[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
METRICS, MEASUREMENTS AND MISMANAGEMENT IN THE BOARD OF VETERANS'
APPEALS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATION
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
WEDNESDAY SEPTEMBER 10, 2014
__________
Serial No. 113-86
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado MICHAEL H. MICHAUD, Maine, Ranking
GUS M. BILIRAKIS, Florida, Vice- Minority Member
Chairman CORRINE BROWN, Florida
DAVID P. ROE, Tennessee MARK TAKANO, California
BILL FLORES, Texas JULIA BROWNLEY, California
JEFF DENHAM, California DINA TITUS, Nevada
JON RUNYAN, New Jersey ANN KIRKPATRICK, Arizona
DAN BENISHEK, Michigan RAUL RUIZ, California
TIM HUELSKAMP, Kansas GLORIA NEGRETE McLEOD, California
MIKE COFFMAN, Colorado ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio BETO O'ROURKE, Texas
PAUL COOK, California TIMOTHY J. WALZ, Minnesota
JACKIE WALORSKI, Indiana
DAVID JOLLY, Florida
Jon Towers, Staff Director
Nancy Dolan, Democratic Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATION
MIKE COFFMAN, Colorado, Chairman
DOUG LAMBORN, Colorado ANN KIRKPATRICK, Arizona, Ranking
DAVID P. ROE, Tennessee Member
TIM HUELSKAMP, Kansas MARK TAKANO, California
DAN BENISHEK, Michigan ANN M. KUSTER, New Hampshire
JACKIE WALORSKI, Indiana BETO O'ROURKE, Texas
TIMOTHY J. WALZ, Minnesota
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
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C O N T E N T S
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Wednesday, September 10, 2014
Page
Metrics, Measurements and Mismanagement in the Board of Veterans'
Appeals........................................................ 1
OPENING STATEMENTS
Hon. Mike Coffman, Chairman...................................... 1
Hon. Ann Kirkpatrick, Ranking Member............................. 2
Prepared Statement........................................... 41
WITNESSES
Ms. Kelli Kordich, Senior Counsel, Board of Veterans' Appeals.... 4
Prepared Statement........................................... 43
Mr. Zachary Hearn, Deputy Director for Claims, The American
Legion......................................................... 5
Prepared Statement........................................... 55
Mr. Joe Violante, National Legislative Director, Disabled
American Veterans 7
Prepared Statement........................................... 58
Ms. Laura Eskenazi, Executive in Charge and Vice Chairman, Board
of Veterans' Appeals, Department of Veterans' Affairs.......... 23
Prepared Statement........................................... 66
Accompanied by:
Mr. James Ridgeway, Chief Counsel for Policy and
Procedure, Board of Veterans' Appeals, Department of
Veterans' Affairs
METRICS, MEASUREMENTS AND MISMANAGEMENT IN THE BOARD OF VETERANS'
APPEALS
----------
Wednesday, September 10, 2014
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Oversight and Investigations,
Washington, D.C.
The subcommittee met, pursuant to notice, at 1:01 p.m., in
Room 340, Cannon House Office Building, Hon. Mike Coffman
[chairman of the subcommittee] presiding.
Present: Representatives Coffman, Lamborn, Roe, Huelskamp,
Walorski, Kirkpatrick, Takano, O'Rourke, and Walz.
OPENING STATEMENT OF MIKE COFFMAN, CHAIRMAN
Mr. Coffman. Good morning. This hearing will come to order.
I want to welcome everyone to today's hearing entitled,
``Metrics, Measurements and Mismanagement at the BVA.'' Today
we will hear from both the VA and a witness from within VA's
Board of Veterans' Appeals who has seen firsthand the tactics
and strategies used by management to hide veterans' claims,
rework time frames to cover up the length of time cases have
been sitting within the BVA, and manipulate cases to achieve a
goal of 55,170 claims adjudicated in a year. We will also hear
from representatives from two veterans service organizations in
regards to their experiences in representing veterans before
the BVA.
We have already seen evidence of data manipulation within
the Veterans Health Administration, the Veterans Benefits
Administration, and the Health Eligibility Center, and the
lengths VA will go in order to cover it up. We must now add the
Board of Veterans' Appeals to the list. An extensive House
Veterans' Affairs Committee investigation, brought on largely
through the bravery and honor displayed by VA whistleblowers,
has uncovered numerous processes the BVA uses to manipulate
data. For example the BVA has number one counted the same cases
multiple times to pad its numbers and make it look like they
are achieving high goals for processing veterans' claims. All
the while older, more complex cases and the veterans involved
in those cases are languishing in the name of the Board of
Veterans' Appeals' goals. Number two, changed its reporting
system on more than one occasion to hide how long upper
management has been holding onto cases without adjudicating
them. Number three, the BVA has inappropriately labeled, as in
``abeyance,'' so that the clock stops and the excessive delays
cannot be charged against them. Number four, it has implemented
a ``rocket docket'' system to pull easy cases out of the docket
order and adjudicate those cases to pad its numbers, even
though the process violates the law and harms those veterans
who have more complex cases and have already been waiting a
long period of time for a decision. Number five, the BVA has
arbitrarily increased yearly case production for administrative
law judges which resulted in these judges simply signing cases
without reviewing them and not taking advantage of available
tools that would shorten the time for adjudicating veterans'
claims. Number six, the Board of Veterans' Appeals has
transferred cases from storage to the attorneys and
administrative law judges even though they are already
overloaded with cases, thereby hiding the amount of time a case
has been sitting idle in case storage. And finally, number
seven, cases are being processed and closed, then the original
decision is vacated and that is counted as a completed case a
second time. Then when it is returned to BVA for completion it
is counted as a closed case for a third time. Out of the 55,170
cases shown as completed last year only approximately 15,000
were actually adjudicated. The remainder were remanded, which
means that veterans still have not received a decision on their
cases respectively.
The whistleblowers testifying today will provide detailed
insight into what has been going on within the Board of
Veterans' Appeals. For its part the Board needs to respond to
these claims and where necessary be held accountable for its
actions. With that, I now yield to Ranking Member Kirkpatrick
for any opening remarks she may have.
OPENING STATEMENT OF ANN KIRKPATRICK, RANKING MEMBER
Mrs. Kirkpatrick. Thank you, Mr. Chairman, for holding this
hearing on this important topic. I also want to thank the
witnesses for coming forward today to appear before this
subcommittee.
Over the last number of months I have become increasingly
concerned that in the months and years ahead we may be facing a
new crisis with veterans waiting too long for decisions on
their appeals. This is of critical concern to all of us and
having a hearing on the Board of Veterans' Appeals is long
overdue. I am concerned about the number of complaints and
letters from various sources who have made significant
allegations that employees may be attempting to game the
system; are providing poor leadership; or that the electronic
processing system, VBMS, of which taxpayers have invested
hundreds of millions of dollars, is not performing adequately
at the appeal level. Indeed VBMS may not be ready for prime
time.
We must be assured that the data we get is accurate and
represents the reality faced by our veterans. As we saw in
Phoenix, this is essential not only for our oversight purposes
but to ensure that senior VA leadership has an accurate picture
in order to provide leadership plans for released appeals in
the future and assure the appropriate resources and tools are
applied to address the problems as they exist before we face
another crisis.
I routinely hear from veterans in my district in Arizona.
They tell me they are waiting years to receive a decision on
their appeals. This is unacceptable. Our veterans deserve
better. This is what we are all focused on today, how to
address the real delay faced by veterans. I think we can all
agree that more needs to be done and that there is a real
concern that we may be exchanging a backlog crisis for an
appeals crisis.
Nationally the average length of time to receive a decision
on an appeal in fiscal year 2013 was 960 days, nearly three
years. The number of appeals has continued to grow. BVA
projects nearly a 20 percent increase in the number of cases
received at the Board this year alone. As VA continues to
adjudicate claims more quickly we should only anticipate the
number of appeals waiting for a decision to increase.
Another factor leading to the additional delays is that
almost half the cases sent to the Board are remanded back to
the VA for additional evidence, or due to errors on behalf of
the VA. A remand adds another year to the process. Four years
to make a decision on an appeal is intolerable.
Solutions are needed to ensure that we begin to reduce
these delays and to ensure that the delay in appeals is not the
next big crisis. I am hopeful that today's hearing will provide
us with the opportunity to begin to identify these solutions.
One solution may be that more data is needed, not just better
data. Congress, VA, veterans, and VSOs should all trust the
quality of the data, be satisfied that the data we are getting
provides us with the information we need. I wish to thank the
American Legion for emphasizing this in its testimony. VA
provides an extensive amount of weekly data on VBA claims by
comparison. The Board of Veterans' Appeals provides an annual
report.
I hope that we can begin the discussion today on how we can
provide our veterans with a better understanding of where we
should be with regards to reaching timely outcomes on appeals.
Simply put, veterans should receive better timelines and
information than they currently get, and Congress should be
receiving more frequently updates on the performance of BVA.
Providing more comprehensive and accurate data will better
enable us to provide oversight and work with BVA to find
solutions to problems before these problems reach crisis
status.
Thank you, Mr. Chairman, and I yield back.
[The prepared statement of Ann Kirkpatrick appears in the
Appendix]
Mr. Coffman. Thank you, Ranking Member Kirkpatrick. I ask
that all members waive their opening remarks as per the
committee's customs. With that, I invite the first panel to the
witness table. And on this panel we will hear from Ms. Kelli
Kordich, Senior Counsel, Board of Veterans' Appeals; and Mr.
Zachary Hearn, Deputy Director for Claims, The American Legion;
Joe Violante, National Legislative Director, Disabled American
Veterans. I ask the witnesses to please stand and raise your
right hand.
[Witnesses sworn.]
Mr. Coffman. Very well. Please be seated. Your complete
written statements will be made part of the hearing record. Ms.
Kordich, you are now recognized for five minutes.
STATEMENT OF MS. KELLI KORDICH
Ms. Kordich. I would like to thank you, Chairman Coffman
and members of Congress, for allowing me to speak today. My
name is Kelli Kordich and I am a senior counsel at the Board of
Veterans' Appeals in Washington, D.C. I am also an Army veteran
having served in the United States Army Transportation Corps
for four years, attaining the rank of captain. I started
working at the Board in December, 1999. I am here today because
as a veteran I am appalled and saddened by unchecked
mismanagement, corruption, and blatant disregard for our
nation's veterans that has become characteristic of Board
management in the pursuit of processing appeals at breakneck
speed for management's own self-preservation rather than for
the good of the veterans. I am also here as the voice for the
many Board employees mired in a toxic management system that
uses a culture of fear and intimidation to attain its goals. A
few years ago I myself exposed a bullying and morally bankrupt
manager and as a result have endured retaliation and
intimidation by Board management. The Board's management is
ruthless in stifling criticism, going so far as to weaponize
the department-wide I CARE principles to label critics as anti-
veteran. All of the information I give you today has been
backed up with evidence based on exhaustive research by myself
and other dedicated employees at the Board who are desperate
for the corruption and mismanagement to end but who justifiably
were too afraid of retaliation by Board management to offer
testimony today.
Reports show that at least since 2012, and as recently as
August 2014, Board management held cases in their possession
for well in excess of 100 days to over a year. Most of the
appeals languishing the longest were either simply awaiting
review for signature, or just waiting to be assigned to an
attorney. There was no legitimate business reason to allow the
cases to languish for months. Disturbingly many of these long
neglected appeals were ultimately remands or grants. Rather
than addressing the issue of delays, the front office
manipulated the Board's electronic record keeping system called
VACOLS by electronically shifting around the oldest neglected
cases to others in the chairman's office, and by removing the
front office from the report. The Board also used a program
called rocket docket to meet its production numbers at the
expense of veterans. Specifically the appeals those veterans
with large cases or more than two issues were not included in
the screening process. In addition, the Board's management
allowed approximately a hundred cases to be decided under this
program out of docket order in violation of statute. And to
this day Board management allows judges holding hearings to
label a case as a rocket docket cases regardless of docket date
to get the case quickly without a mechanism to prevent the
judge from denying or granting a case out of docket order.
At the beginning of fiscal year 2014 the Board announced a
production goal of 55,170 cases. By March 2013, and even with
attorneys working significant amounts of unpaid overtime to
meet their own high production goals, people realized that the
Board was not on track to reach this lofty production goal. In
an effort to remedy this the production goals of the judges
were dramatically and retroactively increased midyear. When
most judges instantly found themselves below goal they were
forced to review cases less thoroughly in order to catch up. At
the same time the Board altered how cases were counted in
reaching the production goal by no longer counting the use of
independent medical opinions or Veterans Health Administration
opinions towards the Board's production goal. Although both
devices dramatically decrease how long a veteran has to wait
for a decision the Board has seen a 47 percent decrease in the
average monthly number of IME and VHA opinions requested. What
this means is veterans will have to wait a considerably longer
time for a decision on their appeal as their cases are remanded
rather than sent for an IME or VHA opinion.
BVA is also scrambling to get cases out of case storage
that have an older docket number by literally forcing them into
the hands of judges in order to transfer responsibility in the
event that a veteran dies while the case is at the Board or if
case status inquiries are made concerning the excessive length
of time cases have waited to be transferred to the Office of
Veterans Law Judges. There are cases that have sat unprocessed
in case storage for over 400 days.
To meet the production goal of 55,170 the Board in some
cases has counted the same underlying appeal three times when
reporting its production, thereby manipulating the production
numbers reported to VA and Congress. Board management counts a
remand of any case towards the Board's production goal, even
though a remand is not a final decision and typically returns
to the Board, often to be remanded again and thus counted
multiple times in the Board's production report. For the
current fiscal year, data reveals that no more than
approximately 20,000 individual cases have had a final decision
made.
I hope I can further illuminate for this committee the
increasingly toxic and veteran unfriendly actions that Board
management has adopted in pursuit of their own agenda. Thank
you, and I am happy to answer any questions you may have.
[The prepared statement of Kelli Kordich appears in the
Appendix]
Mr. Coffman. Thank you, Ms. Kordich. Thank you for your
service in the United States Army, and thank you for your
service to the Department of Veterans Affairs, and for your
courage to step forward today. Mr. Hearn, you have five minutes
please.
STATEMENT OF MR. ZACHARY HEARN
Mr. Hearn. Thank you. Good afternoon, Chairman Coffman,
Ranking Member Kirkpatrick, and members of the committee. On
behalf of our new National Commander Mike Helm and the 2.4
million members of the American Legion, thank you for allowing
us to testify regarding the problems with the appeals process
74.5 percent, that is the percentage of claims holding the
American Legion as power of attorney that have either been
granted or remanded by BVA this fiscal year through September
1, 2014. Of the 8,366 claims holding American Legion power of
attorney that received dispositions during this time period,
2,330 decisions previously provided by a regional office were
overturned and a grant of benefits were awarded. Another 3,904
claims were determined to have been inadequately developed and
prematurely denied. Unfortunately, for those 3,904 claims
remanded, and those claimants seeking benefits, their quest for
VA benefits continues. These claims were remanded for numerous
reasons to include, but not limited to, inadequate compensation
and pension examinations; inadequate development of claims at
the VA regional office; and failure to consider claims as
manifesting secondary or being aggravating by previously
service-connected conditions. These remands result in claims
not receiving a decision and requiring development as required
by the Veterans Law Judges at BVA. Sadly, claims are often
remanded two, three, or even more times prior to having a claim
finally be adjudicated. Quite simply, this is unacceptable.
As has been widely discussed veterans are having to wait
for extended periods of times for original decisions. Combine
this fact with years of waiting for a claim to be adjudicated
by the BVA and it is understandable why veterans become
frustrated.
When I first began my employment with the American Legion I
worked at BVA and worked with these veterans to receive their
benefits. Often they would ask why it takes years to have a
claim adjudicated by the Board. You could sense the frustration
and the angst in their voice. The only way I could explain the
scenario was that there were 56 regional offices and the
Appeals Management Center. I would ask them to envision
approaching a major city on the interstate, and how the
interstate might go from four to six lanes to accommodate the
traffic. Then I asked them to imagine over 50 lanes merging
into one, and it is rush hour. This allowed them to visualize
the pressures that BVA endures.
The American Legion employs approximately a dozen
professional staff and additional support staff dedicated to
represent claimants seeking their benefits. I have immense
respect for the work they do. Daily they report to work knowing
that for the veterans they represent it is often the last
chance to rectify previous errors. A good friend once told me
it is not enough to do well, you must do some good. Members of
the committee, these men and women employed by the American
Legion at BVA do good each day.
Repeatedly the American Legion has testified regarding the
need for VA to improve its accuracy in the adjudication of VA
disability claims at the regional office. The impetus for these
comments does not lie solely in the willful statistics
indicated by BVA remands and grants, and they are not solely
dependent upon the results of various Office of the Inspector
General reports. They are reflective of the results of the
American Legion's regional office action review visits.
The American Legion spends significant time and energy to
review the manner in which VA adjudicates claims at regional
offices. Routinely during these visits we discover the same
errors that would result in grants or remands at BVA. These
visits are not rooted in an effort to prove the flaws of VA.
Instead they are rooted in the belief that we can identify
common errors by VA adjudicators.
Just yesterday I attended a round table hosted by Senators
Bob Casey and Dean Heller. During the meeting representatives
of the American Federation of Government Employees indicated
that newly hired employees are being rushed into production
without comprehensive training. Even VA's own employees
recognize the complexity of VA claims and are calling for
increased training to ensure that they can meet the needs of
our veterans.
Today, we are here to discuss the BVA. However to only
focus upon BVA only discusses the symptom. The American Legion
wants to treat the disease.
A review of VA's September 8, 2014, Monday morning workload
report reveals 280,297 claims have been appealed and are
awaiting adjudication. The number of claims have increased by
over 21,000 during this fiscal year. You do not need to be a
prophet to forecast that with questionable accuracy in the
adjudication of claims will result in an increase of appeals.
It is evident we must continue to press to ensure that VA
improves its accuracy of disability claims for the errors made
today have long-lasting, deleterious effects upon our nation's
veterans and their families.
Again, on behalf of National Commander Mike Helm and our
2.4 million members, we thank the committee for inviting us
here to speak today. And I will be happy to answer any
questions offered by the committee. Thank you.
[The prepared statement of Zachary Hearn appears in the
Appendix]
Mr. Coffman. Mr. Hearn, thank you for your service to our
country, and for your advocacy and the American Legion on
behalf of our veterans. Mr. Violante, you have five minutes.
STATEMENT OF MR. JOE VIOLANTE
Mr. Violante. Chairman Coffman, Ranking Member Kirkpatrick,
and members of the subcommittee, on behalf of DAV I am pleased
to testify on ways to improve the appeals process. Although VBA
has made significant progress in addressing the pending backlog
of claims the single most important action that VBA can take
regarding the backlog of pending appeals is to complete its
transformation and reform the claims process. Quite simply, if
the error rate goes down and if confidence in the claims
process increases, there is a possibility that the percentage
of claimants who become appellants would decline.
Today, there are two main options for appellants: the
traditional appeals process intended to be decided at the Board
and the local Decision Review Officer, or DRO, post-
determination review process. The importance of the DRO review
process cannot be overstated, since a DRO has a de novo
authority, meaning they review the entire claims file with no
deference giving to the rating board decision being contested.
A DRO can overturn or uphold a previous decision, request a
hearing to gather additional evidence, or perform any
administrative function available to VBA. DAV strongly supports
the DRO program but we believe that the number of DROs at some
regional offices around the country is insufficient. More
concerning is the assignment of normal claims processing work
to DROs at some regional offices for some or all of their time.
It is imperative that VBA ensure that DRO focus solely on
appeals work.
For those appeals that go the traditional route to the
Board, one of the most critical factors affecting the length of
time to properly decide an appeal is availability of sufficient
resources, primarily staffing and space. While Congress has
provided the Board with additional appropriations to increase
its staffing over the past two years, there are concerns about
how the Board will provide adequate work space for its entire
newly hired staff. The Board is also exploring ways to increase
efficiency, such as the initiative known as the rocket docket,
which operated from November 2013 through May 2014. Under the
rocket docket program cases that met certain criteria were
screened outside the normal docket order to determine if the
remand was warranted. If that determination was made the Board
ordered the development earlier in the process, thereby
allowing quicker outcomes for veterans while maintaining the
original docket order for each appeal. Overall, the rocket
docket appears to have been a benefit for veterans.
Finally, Mr. Chairman, for the past six months DAV, the
American Legion, PVA, VFW, AMVETS, and VVA have been discussing
ways to improve the appeals process. After multiple
consultations among ourselves and with leaders of the Board and
VBA we have built consensus around a proposal we are calling
the Fully Developed Appeals, or FDA program. This program is
built upon the same general principles as the Fully Developed
Claims program. In the FDA program there would be no VBA
processing or certification and no hearings either locally or
at the Board. The elimination of these steps alone could save
two to three years of processing time. The veteran would have
the ability to submit additional evidence and an argument to
support the appeal when they file their FDA. This program,
which we believe must begin as a statutorily authorized pilot
program, would be totally voluntary. A veteran would have to
opt into it and would retain the right to withdraw their FDA
appeal and return to traditional process at any time for any
reason.
There are details that will need to be worked out but that
can only occur as legislative language is drafted and reviewed
by all stakeholders. In developing this proposal we greatly
benefitted from the work done by Congressman O'Rourke, a member
of the subcommittee, and Congressman Cook, a member of the full
committee, and their sponsorship of H.R. 4616 The Express
Appeals Act. Although we did not build or base our proposal
solely on that legislation, and there are differences that are
important to us, the FDA proposal was informed by their work
and strengthened by conversations with their staffs as well as
with the staffs of both committees.
Mr. Chairman, the information we are hearing today, it is
hard to explain how these things happen. But we believe you
identified the problem. Now we need to work to fix the
solution. And like my colleague from the American Legion, we
are looking for solutions to make sure that veterans' cases are
decided timely and accurately. Thank you.
[The prepared statement of Joe Violante appears in the
Appendix]
Mr. Coffman. Thank you, Mr. Violante. Thank you so much for
your service to our country, and your advocacy on behalf of
veterans as a member of the Disabled American Veterans.
I am going to begin some questions. Ms. Kordich, I am going
to focus on you, on three questions I want to ask. The first
one is, are you aware of any ways in which the Board is
manipulating data in its reports as part of its quest to
achieve the 55,170 production goal?
Ms. Kordich. Yes, sir. What is happening is that the Board
is counting remands, which are not final decisions, more than
once. And we also have cases that we call Bryant cases which
are being counted more than once, sometimes three times.
Mr. Coffman. Thank you. It makes sense to count a grant or
a denial as a case in production numbers. But do you think a
remand should count as well since the case has not actually
been adjudicated?
Ms. Kordich. No sir, I do not. A remand, as I said earlier,
comes back sometimes numerous times. Sometimes it may not come
back in the same fiscal year, but sometimes it does so it is
counted maybe twice during the same fiscal year. Also the
remand rate right now, if you take the remands out of the cases
that have been reported you have approximately 20,000 cases
that had final decisions. Now if you count cases that are final
decisions, plus some cases have remands that go with them so
they are sort of a hybrid type of case. So even counting them
you have approximately 33,000 cases that have been dispatched,
no where near the 55,000 which is our goal for this fiscal
year. So no, I do not believe that a remand should be counted
because it is not, and the basic premise is, or the bottom line
is, is that it is not a final decision and you keep going back
to the well for the same, it is the same number over and over
again.
Mr. Coffman. Are you aware of any other ways in which the
Board is manipulating data in how it reports it progress
towards the 55,170 production goal?
Ms. Kordich. Yes, sir. There are cases that we call Bryant
cases. And VA entered into a settlement agreement through the
federal court and we gave the appellants an option to vacate
their cases and have another hearing. And approximately 400
appellants chose to vacate. So we counted those when we vacated
them. Then they had a hearing and then they had another
decision issued, and so we counted those. So what we have here,
and you have, and I believe that this is also an exhibit that
the committee has. So what you have is the case going out,
first being counted. Then you had the lawsuit, which we then
had to vacate the cases. Then you had the hearing. And then the
third on the same decision goes out when you have the final
decision. So you had three, that case, those cases were counted
three times.
Mr. Coffman. And my last question, there seems to be a
difference in the panel. Mr. Violante stated I believe that the
rocket docket was good for vets, if I understand this testimony
correctly. But Ms. Kordich, you are saying that it is not. And
I am wondering if you could elaborate on that difference?
Ms. Kordich. Yes, sir. The rocket docket premise is that
under 38 U.S.C. 7107(a), the subsection A, cases must be
adjudicated in docket order, except for a few exceptions. And
those exceptions one of them is what they use for the rocket
docket, is that if a case needs to be developed, if it needs
further evidence in order to adjudicate, then we can remand it
back. Which is fine if in fact you screen all the cases.
However, on December 13, 2013, a member of the Vice Chairman's
staff sent out an email indicating that we were going to start
the rocket docket program, and the program essentially gave the
parameters for how we would do the program. So the program
would have overtime attorneys screening cases. There would be
no box cases screened. There would be no cases with more than
two issues screened. This leads us to having those veterans who
are not accommodating enough to have small cases or less than
two issues having their cases languish in case storage even
though they have an old docket number. So the procedure of the
screening was a problem.
Also, those attorneys who were screening the cases only got
20 minutes to screen each case. So they were allowed three
cases an hour in order to screen on overtime. Also, the
attorneys who screened the cases were not the ones who actually
wrote the remand for the cases. So you have a duplication of
work and overtime effort whereas it would have been a lot
simpler just to have the same attorney that actually reviewed
the case to write the case.
Mr. Coffman. Thank you, Ms. Kordich. Ranking Member Ann
Kirkpatrick.
Mrs. Kirkpatrick. Ms. Kordich, I want to follow up on that
line of questioning. How many hands then touch a single file in
the appeals process?
Ms. Kordich. Do you mean the rocket docket process, ma'am?
Mrs. Kirkpatrick. In the rocket docket, yes.
Ms. Kordich. Okay. Well, what you had was the initial
screeners, which was an attorney working overtime. So they
looked through of course the cases that were not box cases and
were not more than two issues. They would go through it and
then they would decide and they would write on the front of it,
had a sheet on the front of what they thought could be done for
the case. So then, that was then later distributed the
following week so that the attorney working overtime to write
the case got it.
Mrs. Kirkpatrick. But to a different person? A different
attorney?
Ms. Kordich. Right, a different person entirely. And
sometimes that person who got it did not see eye to eye with
the first one who actually screened the case. So sometimes it
had to go back down because it was not going to be a grant, or
it was not going to be a remand. It would have been a grant or
a denial. So----
Mrs. Kirkpatrick. Just to be clear, so then it goes back to
the original attorney?
Ms. Kordich. Well no, it goes back to case storage.
Mrs. Kirkpatrick. To case storage? Okay.
Ms. Kordich. Right. Because the screening was, the
screening was not proper so it would go back to be distributed
later.
Mrs. Kirkpatrick. Do you think there is adequate training
for the people who are doing this, this type of work?
Ms. Kordich. I think there was adequate training. I do not
think there was an adequate enough time for them to go through
each case. And I do not, and my main problem was that box cases
or more than two issues cases were just left languishing and we
were getting the easy cases out instead, or screening the easy
cases instead.
Mrs. Kirkpatrick. When the box cases are brought out of the
box, do they get a new docket number? Or do they continue with
the same docket number?
Ms. Kordich. No, no. What a box case is is so many volumes
of one case, so much evidence in one case, the volumes are just
placed in a box. It is sort of like a, like reams of paper in a
box that you have for the Xerox machine. And that is the type
of box it is. Sometimes you have two boxes, or more than two.
But usually it is a box and it has volumes in it. A regular
case, that we call a regular case, would be one or two volumes
I would say probably, six inches high.
Mrs. Kirkpatrick. And this committee are very concerned
about the VA's system and use of technology. Do you think that
the technology is adequate?
Ms. Kordich. In your opening statement you were talking
about the VBMS.
Mrs. Kirkpatrick. Yes.
Ms. Kordich. And as a GS-15 I have a lot of attorneys
coming to me in my group. We have a work group. And they come
to me with many complaints about the VBMS system being down,
that it freezes up. And sometimes you have hundreds, 500 pieces
of mail that you have to go through, or evidence that you have
to go through when you get into the virtual system or the VBMS
system. And it can take you twice as long to do a VBMS case as
it does to do a regular paper case because our attorneys are
trained to look at the paper cases and know exactly what it is
that they just do not need to look at or that, you know, they
can come back to later. But in the VBMS you just have to go
through the system and to the computer and it takes you a lot
longer, especially with all the glitches that there are. And I
get a lot of complaints from attorneys that they would rather
not even have those cases.
Mrs. Kirkpatrick. And I want to thank you for your courage
in coming forward. We appreciate that. And we believe that that
is essentially in actually being better able to serve our
veterans. I recently introduced the Whistleblower Protection
Act to protect whistleblowers within the system so that this
committee can do its job.
Ms. Kordich. Thank you.
Mrs. Kirkpatrick. As I said in my opening statement, we
know what the problem is. Mr. Violante, you addressed that. We
are looking for solutions. And I want to applaud my colleague
Beto O'Rourke and Mr. Cook for bringing forward the Express
Appeals Act. I think that is a step in the right direction. It
looks to me like the solutions are sort of around four things
that we could do right away to avoid this crisis. That is get
better data; look at resources, is resourcing adequate, is
there enough staff, enough attorneys, enough judges; training,
is it adequate; and then, you know, launching the pilot
program. So Mr. Violante, I just wonder if you could comment on
those four things? Better data, resources, training, the pilot
program?
Mr. Violante. I mean, they are obviously all excellent
points. I would put probably data at the bottom of my list.
Because, you know, we talk about numbers a lot. But we do not
talk about the final results. And to me, that is more important
to a veteran. You know, whether the Board produces 40,000
appeal decisions or 60,000 appeal decisions, the question is
are they correct, are they timely? So I would like to see that.
Certainly training is a big factor. I would also like to
address the question from the chairman regarding appeals, or
regarding remands. I worked at the Board for five years in the
eighties, B.C., before the court. It was a little easier back
then. We did not have to worry about decisions from above.
Whatever we said was the law. But a remand should be counted
because someone is looking through the case and making a
determination. You are still doing much of the same up front
work. It is certainly a lot easier to write a remand decision
than it is to write a regular decision. But again, unless you
can figure out another way to count that attorney's time I
think remands have to be counted. Accountability, to make sure
that these cases are being remanded accurately and could not
have been allowed at that level. And that I noticed a number of
remands coming back to the Board over and over again. And
again, accountability on what the regional offices are doing to
correct those decisions and correct their errors need to be
factored into this also.
Mrs. Kirkpatrick. Thank you so much. I yield back.
Mr. Coffman. Thank you, Ranking Member Kirkpatrick. Mr.
Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman. Thanks for your hard
work and for having this hearing. Ms. Kordich, I would like to
ask you about one of the practices you referred to that was of
concern in trying to speed up things but creating problems in
the process. And that is forcing cases too quickly into the
hands of judges. Could you elaborate on that a little bit more,
please?
Ms. Kordich. Yes, sir. When Secretary Shinseki resigned on
May 30th, on June 2nd we got an email from case storage that
said that they would start sending cases up with 2011, June
2011 and earlier docket numbers automatically. And this was a
total change in the way we worked our procedure. What happened
was that I believe that management found out that as soon as
Secretary Shinseki was gone that there may be some questions as
to the cases languishing in case storage that had docket
numbers, so they started sending them up. What the problem was
is that the judges, what the usual procedure was that they
would ask us to order cases whenever they needed them so that
they could manage their own case load. Well, now they are
coming up whether they want them or not. Now that they have a
system where if they have too many cases they can say no. But
at the beginning they were coming up so quickly, they were
giving them out to the attorneys and the attorneys had 13 or 14
cases assigned to them. Well, of course they are going to be
old by the time they start working them because they have such
a big caseload.
Mr. Lamborn. So is that something that is no longer an
issue today?
Ms. Kordich. It is still an issue. I have----
Mr. Lamborn. It is still an issue?
Ms. Kordich. Yes it is, sir. I have, I have judges now that
say I do not want you to order any more cases. Tell them to
stop the automatic deliveries for this week and next week.
Mr. Lamborn. So they are not really ready? They are not
really ripe for a decision?
Ms. Kordich. They are ripe for a decision. But the judge
now cannot manage their own caseload so they just keep coming
at breakneck speed. And they have to keep giving them out,
which bogs down the attorneys. And then it takes them a while
to get the cases done. What they usually did was they came up
gradually, of course in docket order, and but then when the
Secretary resigned then they were afraid that there would be
too many old cases in case storage that were languishing
because they were cherry-picked like they were for the rocket
docket. So you had the box cases, the more than three issue
cases coming up because they were old.
Mr. Lamborn. Okay. And on the rocket docket it sounds like
it was well intended, a good idea, but there were unintended
consequences. Is that how you would characterize it?
Ms. Kordich. Well, I would characterize it as we needed to
get 55,170 cases out and this was a good way to do it. And we
are going to do it quickly because we do not want to be looking
at the box cases and the cases that are more than three issues.
So we will just cherry-pick. And then that is when there became
disarray in the case storage because then you had old cases
that were down there, cases that had been cherry-picked that
were old, that were coming up but they were newer. Also, I
would like to say that not a part of the rocket docket but
however cases that were taken out of docket order, say 2013
cases that should not have been taken up, were training cases
for attorneys. So when new attorneys start they get simpler
cases of course to train. But those cases were coming up
unchecked because a lot of them were not, were out of docket
order. So many of those cases were coming up for trainees that
should not have been coming up.
Mr. Lamborn. Okay. Thank you for our testimony, and for all
of you for being here today. Mr. Chairman, I yield back.
Mr. Coffman. Thank you, Mr. Lamborn. Mr. Takano.
Mr. Takano. Thank you, Mr. Chairman. Mr. Violante, could
you, you expressed in your opening remarks strong support for
the rocket docket program. Could you elaborate a little more
about why?
Mr. Violante. Yes. I mean, in our mind it is a triage
program. Now how it was implemented raises some questions. But
I think the concept of finding those cases that you cannot
decide because there is additional development that needs to be
done, or something missing from the claims file, finding those
early on and sending them back to have that work done
definitely is a way to look at these cases and get them done
quicker. And when those cases came back with the information
these veterans I believe got a faster decision.
Mr. Takano. I do not know if this is the same
administrative procedure that got put in place. But I remember
the health claims, the ratings that were, needed to applied in
Los Angeles, some revisions in procedure allowed certain parts
of a claim to be decided faster so they would not have to
decide the whole claim all at once. I think that was a separate
sort of claim, not a BVA claim. But the idea was triage, and we
could, I mean, you can negatively maybe characterize it as
cherry-picking. But on the other side of it it was looking to,
you know, accelerate those claims that were simpler to
adjudicate and get it done faster. I mean, that is what I hear
you saying.
Mr. Violante. Right. I mean, again, the concept I think is
triage. How it was implemented may be something different. But,
you know, to identify those cases early on and get that
development done I think is a definite way to go.
Mr. Takano. Ms. Kordich, would you, do you want to see
rocket docket eliminated? Or do you think we need to, is there
some accommodation? I mean, do you subscribe to the idea that
there are some cases that we could move faster? Or does
everything have to go in docket order, as you----
Ms. Kordich. No. I think, no sir, I think the screening
process needs to be better. I mean, maybe you can give them 20
minutes, the attorneys working overtime to look at a bigger
case or but I do not think veterans should be ignored just
because they have bigger cases. I also would like to point out
that about a hundred cases were actually granted, which is in
violation of 7107(f) because there are no exemptions to grant
cases. They are only to be developed. So there a hundred cases
that were actually granted out of docket order.
Mr. Takano. Is there a way for us to do you think, you
know, move the simpler cases, you know, much faster even if
they go out of docket order? And concentrate staff time on
those more complex cases? I mean----
Ms. Kordich. I mean, I am sure sir you could come up with
a, I think the main concern, the main motive of the management
was just to get cases out.
Mr. Takano. Just to get cases out?
Ms. Kordich. Right. I mean, I am sure that someone could
sit down and think about, I do not think it is that difficult
to figure out, you know, a screening process where we could, I
know it is not a perfect system. You cannot do everything in
precise docket order. But this was more of languishing cases
and then once June 1st came around then there was a scramble to
get these cases out just in case.
Mr. Takano. In your testimony you highlighted the poor
morale at the Board. And do you think, what do you think could
be done to make the Board a better employer?
Ms. Kordich. The Board has had a problem with a culture of
fear and intimidation for a long time. Attorneys are afraid to
express their views. And it is always met by swift retaliation
if they just make a benign comment. When the Vice Chairman
initiated the 55,170 there was a poster contest. And then
people, to promote the 55,170, and I believe that you have
that, some of those posters as evidence. And Board attorneys
were angry at management for such a cavalier attitude because
they actually do the work. There is no production requirement
in the front office for attorneys there. So what happens is it
was met by anger and some gag posters. And when the gag posters
came out the Vice Chairman sent an email apparently insinuating
that the creator of the poster was anti-veteran.
Mr. Takano. Oh dear. Do you think that the Board is under-
resource? Do you think that the problem is understaffing, or is
it just strictly kind of a management style?
Ms. Kordich. I think it is management. I think we have more
than enough staff.
Mr. Takano. Okay. Mr. Chairman, I yield back.
Mr. Coffman. Thank you. Ms. Walorski?
Mrs. Walorski. Thank you, Mr. Chairman. And I just wanted
to echo my agreement with the chairman's opening remarks and
the ranking member's, that I hope as well that we have not gone
from major health crisis in the VA to a major appeals process
as well. And I appreciate the testimony as well from our VSO
organizations that are always supportive of veterans, and I
appreciate you coming forward Ms. Kordich. I cannot imagine,
with what this whole committee has been through with the VA for
the last several months, and I am new. Some of these guys have
been at this for years. But I guess my first question is for
you, Ms. Kordich. Have you seen any change in even the attitude
and behavior with the departure of the Secretary Shinseki and
the new Secretary come on? Has there been kind of a, is there a
sigh of relief that maybe there is help coming? Is there just
the same old, same old as this continues to roll along?
Ms. Kordich. I think at first Board attorneys were
optimistic.
Mrs. Walorski. Yes.
Ms. Kordich. However, there still seems to be no emphasis
on protecting those who want to speak out. It is sort of
business as usual.
Mrs. Walorski. So whistleblowers do not feel like they have
additional protection today that they may not have had a couple
of months ago?
Ms. Kordich. Oh, no. No, not at all. Not at all. It is the
same continuous. Like I mentioned earlier, Board management
uses the I CARE standards or values as a weapon against
employees.
Mrs. Walorski. Yes.
Ms. Kordich. And, although they do not follow them
themselves.
Mrs. Walorski. I am almost afraid to ask this question. But
are there any performance bonuses attached to anything in the
front office about any of these numbers and cases and rocket
docket, and who gets this and who gets that? Are there
performance bonuses attached to how many cases are filed,
adjudicated, anything like that? Are there performance bonuses
in the structure?
Ms. Kordich. Yes, there are. And in December there are
performance bonuses. I mentioned in my testimony that in May of
2012 there were cases held an appalling amount of time by Board
management and then they started switching them around so that
they would not get caught. Those individuals all received the
bonuses. Some of the cases were held for a processing time of
606 days.
Mrs. Walorski. Oh, my goodness.
Ms. Kordich. When it was only, when it was a grant so that
the veteran could have gotten their benefits earlier. But there
was a, and those employees received bonuses and they were all
promoted. The Principal Deputy Vice Chairman to Vice Chairman,
and the rest to judges. And I will add coincidentally none of
them are veterans.
Mrs. Walorski. Interesting. From your perspective the VA
Reform Law that we just passed, that the President signed, that
in some cases a lot of it does not roll out until October. Do
you see any hope, and I know you are in the appeal position. We
just spent a lot of time dealing with the healthcare position.
But the over, the duplication is there because of how these
cases are processed. Do you see anything up until this point
that we have done as a committee that has done anything to
impact the world of appeals or anything else? Or do you see
that we, that the only hope is urgent legislation out of here
that will start combating the appeals process?
Ms. Kordich. I think the latter.
Mrs. Walorski. Urgent----
Ms. Kordich. Yes, ma'am.
Mrs. Walorski. Do you think the general attitude in the VA,
with as much attention at this conference, and the nation, the
American people are at the table. You know, from New York to
California, the American people want our veterans to have every
single thing they deserve, as do we. Do you think that the
pressure from the American people helped turn the attitudes
inside of just the general VA as you know it? Not so much that,
you know, Congress did X, but just the American people, their
ears are on. They care and they are fighting for veterans. Do
you see that as being, having helped in the healthcare arena,
and something that we could carry over into the appeals arena?
Ms. Kordich. I think so. I think people were not, with us
we are such a small----
Mrs. Walorski. Yes.
Ms. Kordich [continuing]. Area that, and that is why this
has been able to go on because nobody really paid attention to
what was going on.
Mrs. Walorski. Yes. Okay.
Ms. Kordich. Until this hearing. And then I think
management was quite shocked. However, I do think that people
are now, the American public are now focused on, well, what is
going on with other departments?
Mrs. Walorski. Yes.
Ms. Kordich. And I think it is good that this committee has
looked into the VHA and the VBA as well.
Mrs. Walorski. I appreciate it. Thank you so much for your
testimony, all of you. And I yield back the balance of my time,
Mr. Chairman.
Mr. Coffman. Thank you. Mr. O'Rourke.
Mr. O'Rourke. . Thank you, Mr. Chair. Thank you for raising
the profile of this issue, you along with the ranking member,
ensuring that this does not go unnoticed. And I want to thank
our panelists for helping to shed some additional light on this
and for all the work that you are doing, including just
informing us that we can make better policy decisions and hold
the VA accountable for its actions.
You know, just anecdotally, you know, we had been so
focused when it came to VBA issues on first time service-
connection disability claims and the long wait times we were
seeing out of Waco, which serves El Paso, up to 470 days last
year for an average wait time out of El Paso, that I do not
think we realized the crisis that was developing in the appeals
process. And I was at a town hall earlier this year and a
veteran stood up and he said, hey, great work on this first
time disability claim issue. But I have had an appeal that has
not been touched for two years. You mentioned 400 days earlier.
You know, two years. And what are you all going to do about it?
We had Mr. Jason Ware, who is second in command at Waco there
visiting El Paso. And I thought it was telling that he could
give us no information on the appeals backlog, where we stood,
the average wait time. You know, I will get back to you. We
just had a meeting with him this Saturday at a town hall and he
was able to give us more of an update. But even within the VA I
do not think that there was acknowledgment that they had a
problem. So really appreciate it.
Several have mentioned, including Mr. Violante, the bill
that we worked on with Mr. Cook, that you all worked on with
us. And I want to thank you for that, the Express Appeals Act.
Especially the veteran sacrifices his or her ability to add
additional information to the appeal and in return there is an
expedited process to adjudicate that appeal. A kind of a trade
off like you have with the fully developed claim for first time
claimants. And certainly, I know I speak for Mr. Cook, we stand
ready to make improvements to this bill. And we also have no
pride of ownership. If there is a better way to get this
introduced and heard and on the floor of the House, we stand
ready. I know I had a chance to talk to Mr. Augustine yesterday
and he was very kind to call me again today to provide an
update and suggested that it might make sense to get together
with the leadership from all the VSOs to talk about either how
we improve this or do something different. I would love to hear
from Mr. Hearn and Mr. Violante any suggestions on what we
would do differently or better than what already exists in the
bill offered by myself and Mr. Cook.
Mr. Violante. Well the one thing we would like to see is a
pilot program because we want to be able to look at it after
three years, two, three years, and see is it working properly?
Is it working the way we had anticipated? Again, our, you know,
design is that a veteran have the ultimate right. In other
words, if you choose to go this route you are choosing to go
this route because you do not have any additional evidence, you
want to get a quick decision. But at some point in time if you
realize that there is additional evidence out there we want
that veteran to have the ability to pull out of that fully
developed appeals process and go back to the normal,
traditional process. So those are just a couple of the things
that we are looking at. I am trying to remember----
Mr. O'Rourke. Well let us continue to talk. Because our
bill, as I understand it, is a pilot program and provides for
this express appeals option as a pilot, to make sure that we
test the concept. But if there is a better way to do it, again,
I stand open. Mr. Hearn, I do not know if you have any
suggestions on how we improve this?
Mr. Hearn. The American Legion is obviously very interested
in trying to find the most expeditious way of getting these
appeals handled. The number of days that it goes in the
process, and has been alluded to today with the remands it is
obviously a major issue that is just continuing to expand. I
spoke with Verna. She is doing a Veterans Crisis Command
Center, and I know you are quite familiar with that. And so
she, what she wanted to express, I was speaking to her this
morning, she said that she would love to be able to sit down
and talk with you all next week and try to hash out some
things. And she has her own ideas as well. But she definitely
wanted me to convey that to you this afternoon.
Mr. O'Rourke. Thank you. And again, appreciate what all of
you are doing. As I yield back I would be remiss if I did not
acknowledge the fact that we are once again at War in Iraq. You
know, it may not be formally declared but we have
servicemembers flying missions over there, we have boots on the
ground in that country. I believe we are going to formalize
that War to include Syria from the President's announcement
tonight. And it is possible that the Congress will be asked to
vote on an authorization for use of military force. I just hope
that for my colleagues that weighs in the balance as we make
decisions about sending servicemembers into combat roles again,
given what we are hearing today and our inability to solve some
very basic problems with how we treat veterans when they return
from the battlefield. So again, appreciate your service and
what you do out of uniform for veterans everyday. And I yield
back to the chair.
Mr. Coffman. Thank you, Mr. O'Rourke. Mr. Huelskamp.
Dr. Huelskamp. Thank you, Mr. Chairman. Thank you for
calling this hearing and giving us an opportunity to learn some
more about this situation. Ms. Kordich, I hope I pronounced
that correctly, if I might have a few questions of you. And I
am trying to read through your testimony. A lot of information
there, and you are trying to get to the bottom of that. Just up
front, I want to know since it was known that you were going to
appear here or became outspoken about your concerns about what
you saw occurring in the workplace, can you identify any
intimidation or retribution against you personally from
management or other employees?
Ms. Kordich. Not yet from this hearing. I do expect it
because Board management, they cannot manage very well but they
can retaliate against employees very well. And I had filed an
EEO complaint and I have been retaliated against for that. So--
--
Dr. Huelskamp. Okay.
Ms. Kordich [continuing]. It is a continuing thing, yes.
Dr. Huelskamp. Okay. Who set the production goal at 55,170?
Ms. Kordich. Who set that, sir?
Dr. Huelskamp. Yes.
Ms. Kordich. I think the Vice Chairman met with Secretary
Shinseki and they came up with that number.
Dr. Huelskamp. Yes, I will ask them how they figured out
that very exact figure. Do you know how many outstanding
appeals are awaiting, our veterans are waiting for action by
the Board?
Ms. Kordich. I do not, sir.
Dr. Huelskamp. Okay. Okay. A couple of very specific things
in there. You did note that there are a number of veterans that
the decisions essentially, if I read correctly, were made and
were simply awaiting signature of a judge or an acting judge.
Could you describe that a little more? It sounds----
Ms. Kordich. Yes, sir. Back, that was in May of 2012.
Management, and if you are, for example I am a GS-15. I can do
acting work. So I can sign cases. And then I also write cases
for judges as well, or acting judges as well. And when I was in
the front office I wrote some cases for the Chief Counsel for
Operations, Mr. Hachey. And what we can do is we can access
what is called an old cases, we call it an old cases, it is in
our system, it is called VACOLS. And it shows when a case has
been held 30 days or more. And so I was wanting to know if my
case was being signed by Mr. Hachey so I was looking in there.
And once you look into the system you can also take the number
from the system and look to see where the case has been. For
example, like a tracker. So there was one particular case I was
looking at and it was a case that I believe that you have, the
committee has, the veteran's name that begins with a C. And I
was given the case by Mr. Hachey to write on April 6, 2012, or
2011, I am sorry. And I checked it into myself. I wrote and
submitted the case for Mr. Hachey's signature on April 15,
2011. On September 15, 2011, Mr. Hachey charged the case back
to me while I was traveling on Board business. When I returned,
I completed the corrections and resubmitted the case back to
him on September 20, 2011. On June 8, 2012, 262 days later, he
signed the case, which was a simple remand for a VA
examination.
Dr. Huelskamp. Yes, okay. Wow, I guess I will have follow-
up questions with the others as well. You do also mention a
couple of other issues. Page 10 of your testimony you talk
about minutes of a meeting on June, or you talk about a June
4th meeting with Ms. Eskenazi. And do you, were you at that
meeting?
Ms. Kordich. The June 4th?
Dr. Huelskamp. Of 2014?
Ms. Kordich. Yes, sir.
Dr. Huelskamp. Okay. Do you know if there are minutes of
that meeting, or, and----
Ms. Kordich. I am not sure.
Dr. Huelskamp. Okay.
Ms. Kordich. I am not sure if minutes were taken of that
meeting. Was that the June 4th meeting of the, concerning the--
--
Dr. Huelskamp. It concerned about Congress.
Ms. Kordich. That was a couple of meetings, actually, but
that was the first time she brought it up. I was not in that
meeting, sir. I was in a second after that.
Dr. Huelskamp. Okay. Okay. And then the last question in
particular that you do note in your testimony that one employee
notified the VA Inspector General of the problems but was never
contacted by the IG. Can you describe that a little bit more,
what you know about that situation?
Ms. Kordich. Yes. He personally told me that he contacted
the IG about the rocket docket program, not so much the program
itself but what I have been discussing that the cases were
taken out of docket order, the easy ones, and that ones that
were not box cases, and he never received a response.
Dr. Huelskamp. Do you know how he contacted them? I mean,
left a message, sent an email, do you know?
Ms. Kordich. I am not sure. I think he actually personally
went there.
Dr. Huelskamp. Yes that is----
Ms. Kordich. But I will have to get back to you on that.
Dr. Huelskamp. Okay. Well the information on that is pretty
troubling, especially with some of the recent reports of the IG
not being as independent as we presumed they are. They are
supposed to be under the statute. So I appreciate your courage,
your commitment to our veterans. And we are trying to improve
this process so I really appreciate your testimony. I yield
back, Mr. Chairman.
Mr. Coffman. Mr. Walz.
Mr. Walz. Thank you, Mr. Chairman. And thank all of you for
being here once again. I associate myself with once again Mr.
O'Rourke and his wise counsel, that we certainly are going to
see the added, I think most of us understand, we hope for the
best, pray for the best, but plan for the worst. This idea that
surges in cases cause some of these problems however I think is
pretty ludicrous. And I would go, Joe, and first ask you. You
have been through this a lot. You have seen both sides of it.
You are at a unique perspective on this. Is this just deep
cultural change? I mean, can we break some of this by attacking
that? Or does it need to be fundamental change in way we are
doing these?
Mr. Violante. I think we need accountability. I mean, as
you said I can go back, you know, to the late eighties, when
Congress was debating whether or not to put a court in place.
And I can remember the Chairman of the Board, then Chairman of
the Board going across the street to meet with Secretary
Dewinski and coming back with different orders each time. Put
out more cases, put out more allowances, just put out more
cases in general so people know what we are doing. I also
observed at that time before I was leaving to go to DAV that
they went around and collected cases for signatures by two
Board members. And at that time, it was a Board. There were
usually three members. In the medical side it was two attorneys
and a doctor, and on the legal side three attorneys. So I mean,
this has gone on. It is terrible. But if you do not have
accountability and if you only focus on the numbers, that is
what you are going to get, is this type of behavior.
Mr. Walz. So I, and I think, I note this because this is,
the folks who have been involved with this, you have been
talking to me about this for a decade that this was an issue.
It came to, and I am very appreciative, Ms. Kordich, that you
would come forward. My question to you is what is your, what is
your formal process when you noticed that there was problems?
What was your formal and informal process to improve the
process for our veterans? And how were those received? Like if
you saw some of this happening formally where are you supposed
to go?
Ms. Kordich. Well I would talk to my supervisor, who is the
Chief Judge. However, they tend not to want to do anything that
is not sanctioned by the front office or the Chairman's office.
So their hands are tied because they are afraid. I mean, if you
try to change something or if you try speak out no one wants to
hear it.
Mr. Walz. Who is the person or who are the people
instilling this fear? Who, I want, you know, because I said,
and we are not going to do it right here. But as Joe is saying
on this, there needs to be a name and a face and an
accountability. And if that is what is holding this up, and we
are, and I think some of these are great ideas which I am very
supportive of. But I think we can put in, you know, fully
developed appeal. But if we have got somebody sitting in that
position that is going to be the gatekeeper and is going to
hold things, it is still a problem. Who are they? And they
just, they sit in these positions?
Ms. Kordich. Well we have the Vice Chair. But we do not
have a Chairman right now. It has been vacant for almost three
years now.
Mr. Walz. Right.
Ms. Kordich. But we do have a Vice Chairman, Ms. Eskenazi.
And her, she was a protegee of the former Vice Chairman who was
about, it was the same, business as usual. So of course she was
the protegee so----
Mr. Walz. Why do we not have a Chairman?
Ms. Kordich. I have no idea, sir.
Mr. Walz. That is a question for us to ask, by the way. So,
and answer. And answer. So you do not have that. That is closed
off to you. Is doing, is coming in this regard, and again I am
incredibly grateful for it but I am just sorry you were ever
put in this position. Because I know from a professional and a
personal standpoint this is the last thing you want to have to
do. You just wish there was a process to fix it.
Ms. Kordich. Sir, I do.
Mr. Walz. Is this your only informal route?
Ms. Kordich. Yes, sir.
Mr. Walz. Is to come this direction?
Ms. Kordich. Yes, sir. Because like I said earlier I have
filed an EEO complaint which no one wants to hear. I have been
retaliated against. I have a little small office. And, with no
window. And across----
Mr. Walz. Is that how it is done? It is just done with
pettiness and marginalizes you?
Ms. Kordich. Yes. Exactly. And across the hall from me
there has been two window offices vacant for two years but they
would never move me into that.
Mr. Walz. Well I think this is the thing, and we have heard
it before, I mean it is hard to fathom that this kind of stuff
happens or the pettiness that goes on. But all of us in this
room know the veteran pays for it. You are certainly paying for
it, and for that I am deeply sorry. But the veterans are also
paying for it and they had nothing to do with it. So I would
encourage all of us, I thank the chairman and the ranking
member, thank you for the hearing. The followup on this, again,
it is one thing to talk about accountability. There is a name
and a face and somebody is getting a paycheck that is doing
this. Those are the people we need, those are the people I want
to sit right here. I yield back.
Mr. Coffman. Thank you, Mr. Walz. It is my understanding
that there is a Director nominee whose confirmation is pending
before the United States Senate. I think it has been a couple
of years that that has been the case and it has yet to be acted
upon. Dr. Roe?
Dr. Roe. Thank you, Mr. Chairman. And to follow up with Mr.
Walz, what we hear when we go home from veterans, they do not
know about boxes and all, they do not know what that is. I do
not even know what that all is until you explained it to me a
minute ago. All they know is I am losing my home, I cannot pay
my bills, my kid is in college, I have no way to take care of
my family, and we are talking about boxes and people will not
sign anything.
Let me give you a little accountability. We had doctors
where I practiced who would not sign their charts. You know,
your discharge summaries and your surgical notes. It was pretty
simple. If you did not sign them, sign those charts, you could
not schedule any more cases for surgery. Well if you cannot
schedule any more cases for surgery you cannot make a living if
you are a surgeon like I was. So guess what? You did your
charts. There should be some accountability somewhere. When I
heard 200-and-something days, and all it is waiting on is a
signature? That is ridiculous. And I heard you say, and we
heard this through numbing hours of testimony this year with
the VA, is that it is not a money issue. When I first came on
here, Mr. Walz came two years before I did, $100 billion a year
we were spending on the VA. Now it is going to be a $160
billion that we are spending. The number of veterans from 2000
until now has gone from 26 million of us down to 21.8 million
and going down. We did not increase the number of veterans
treated by the VA but by 17 percent. And yet we have had this
enormous increase in the budget. So I mean I have to almost
laugh when I heard a quick decision by the VA, that is an
oxymoron by the way, a quick decision. And veterans do not know
about rocket dockets and other, they do not care about that, I
do not care about that. I just want a veteran whose claim is
waiting on it, and this August break we went on, clearly I
heard it over and over again. Dr. Roe, when is my claim going
to get, so I am checking into them now. Why has it not been
adjudicated? Why have I not heard about it? And you know, we
have got, I have got one full-time staff member at home that is
working on it and I am about to have to add some more just to
take care of this. And this backlog is still there. It has not
been stopped. And I guess the question I have if you were the
czar, what would you do to fix this? If you could, if you
could, if you were the boss what would you do to fix this
problem? And I realize that there are claims that do not come
fully prepared. That I understand, and where more information
comes available. But if you could start tomorrow in fixing this
problem, what would the few things be so this committee will
know which direction to go?
Ms. Kordich. I think I would appreciate the attorneys that
do the work better and not force them to work unpaid overtime
so that they can take vacation. They are the workhorses and
they need to be appreciated. The front office does not seem to
understand that. And----
Dr. Roe. Are you saying then it is leadership?
Ms. Kordich. Yes sir. Definitely.
Dr. Roe. Not the worker bees?
Ms. Kordich. Not the worker bees at all because they have a
production goal, they do it. They are not going to let a case
sit for 606 days, or 200-and-some. Because they need the credit
for that case and so do the judges. So they sign the cases. Up
in management there is no production so it is a, they----
Dr. Roe. What would be the reason for a veteran to, I mean
here is a veteran, I see them all the time, sitting at home and
I have got to go back and tell them that your chart just sat on
somebody's desk for 200 days waiting for a signature. Did I
hear that wrong?
Ms. Kordich. Yes, sir. Or, and sometimes 606 days in
processing.
Dr. Roe. So I have got to go home and look at, I just got
back from Vietnam not long ago, look at one of my colleagues
that served in Vietnam, and walked through the mud, and did
that for our country, and they are waiting on somebody to take
their--excuse me, I almost said something bad. Their pen and
sign a chart? Has that happened?
Ms. Kordich. To review a case that is probably only a
remand or a grant of benefits. And to review it and sign it,
which does not take 200 days or 606 days.
Dr. Roe. It is hard to make a politician speechless, but I
am speechless with that. I yield back.
Mr. Coffman. All right. Thank you, Dr. Roe. Our thanks to
Ms. Kordich, Mr. Hearn, and Mr. Violante. You are now excused.
Ms. Kordich. Thank you.
Mr. Coffman. All right. I now invite the second panel to
the witness table. Our second panel we will hear from Ms.
Eskenazi, Executive in Charge, Board of Veterans' Appeals.
I would ask for the witness to stand and raise your right
hand.
[Witness sworn.]
Mr. Coffman. Please be seated. Ms. Eskenazi, your complete
written statement will be made part of the hearing record and
you are now recognized for five minutes.
TESTIMONY OF MS. LAURA ESKENAZI, EXECUTIVE IN CHARGE AND VICE
CHAIRMAN, BOARD OF VETERANS' APPEALS, U.S. DEPARTMENT OF
VETERANS AFFAIRS; ACCOMPANIED BY MR. JAMES RIDGEWAY, CHIEF
COUNSEL FOR POLICY AND PROCEDURE, BOARD OF VETERANS' APPEALS,
U.S. DEPARTMENT OF VETERANS AFFAIRS
TESTIMONY OF MS. LAURA ESKENAZI
Ms. Eskenazi. Thank you, Chairman. I first would like to
thank the prior panel, including Ms. Kordich, for the courage
to come forward and share her concerns.
Good afternoon, Chairman Coffman, Ranking Member
Kirkpatrick, and subcommittee members. Thank you for inviting
me to discuss the Board of Veterans' Appeals' commitment to
providing all veterans with the timely quality appeals
decisions they deserve while ensuring integrity in the data we
utilize to measure our workload.
As Secretary McDonald has stated this is a critical time
for VA and we have a great deal of hard work to do to resolve
the challenges we face and to rebuild trust. I am here
representing the hardworking, dedicated employees of the Board,
many of whom are veterans or family members of veterans. We are
all committed to overcoming challenges to better serve our
nation's veterans.
The Board's mission has remained unchanged since it was
established in 1933. That is to conduct hearings and adjudicate
appeals in a timely manner. The Board's employees come to work
each day with a strong commitment to this mission guided by one
principle in VA's strategic plan. VA is a customer service
organization. This principle has been the motivating factor in
every decision I have made in my 14 months as Vice Chairman and
Executive in Charge. Simply put, veterans always come first.
Having said that I welcome this opportunity to take a hard
look at how we do our work and measure performance. We can
always do better. I have great respect for the oversight role
of this committee. As a steward of public trust I will continue
to explore ways to better serve veterans through the highest
standards of honesty and integrity. During my 14 months as
Executive in Charge the Board underwent tremendous change. We
hired and trained nearly 200 new staff growing the Board to
approximately 680 employees thanks to the generous funding
provided by Congress. This has allowed us to serve the most
veterans ever in a fiscal year since the advent of judicial
review. I have taken numerous steps to improve organizational
climate at the Board by greatly expanding opportunities for
employee engagement, communication, and feedback.
The multilayered veterans appeal process is unique across
federal and judicial systems with a continuous open record. As
a result appeals often involve many cycles of development and
readjudication this unique process provides the veteran with
many opportunities to have a voice in seeking the benefits that
they deserve.
The appeals process is heavily set in law, a body of law
that has been built up over 80 years. This law requires that
the Board consider and decide appeals in docket order with
limited exceptions. Since 1994 docket order is determined by
the date that the appeal is formalized at one of VA's regional
offices rather than the date the appeal is received at the
Board. This creates a docket with a priority order that changes
constantly, daily. The docket also contains workflow
limitations for cases in which a hearing was held as the law
requires that those cases can only be decided by the judge who
held the hearing. Additionally, cases that are remanded retain
their prior place in line if they return to the Board thereby
increasing wait times for newer appeals.
This year the Board piloted a limited program to save wait
time for veterans using congressional authority to prescreen
cases out of docket order to assess the adequacy of the record.
A very small number of appeals were processed through this
program which was paused in early June to assess the
efficiencies to veterans and to consider feedback from
stakeholders. To date, the Board has issued dispositions for
waiting veterans in over 51,000 appeals, a dramatic increase
over last thanks to the efficiencies put in place at the Board
and the generous funding provided by Congress. The Board has
also increased its quality rate to 94 percent using a weighted
formula that was created in collaboration with the Government
Accountability Office in 2002 and 2005.
Although the Board primarily works with paper files the
number of electronic appeals in VBMS continues to increase. As
Secretary McDonald has stated technology is an enabler and we
need to make the most of it. In this spirit the Board has
embarked on an aggressive plan for appeals modernization in
which we look at people, process, and improved technology to
better carry out our mission.
In conclusion veterans are waiting too long for a final
decision under current legal framework. We are thankful for the
work by Congress and other stakeholders, including the veterans
service organization, to explore long term solutions to provide
veterans with a timely appeals process they deserve.
I welcome continued input from all stakeholders on how to
improve the work of the Board and to reinforce the time honored
covenant between America and her veterans. I know that we face
challenges but in times of challenge there are opportunities
and I continue to reach for the opportunities. Thank you.
[The prepared statement of Laura Eskenazi appears in the
Appendix]
Mr. Coffman. Thank you for your testimony, Ms. Eskenazi.
According to documentation from your database dated May 10,
2012 you and attorneys from your office were holding cases for
review and signature for as long as 400 days. Can you explain
this?
Ms. Eskenazi. Yes, I am familiar with that report which is
dated two and a half years ago. And when I saw that report it
gleaned that there was a challenge in work processing in my
office and I took immediate corrective measures to rebalance
the workload in those offices so that the staff had the right
amount of time to do the work that was assigned to them. And I
am happy to report that the measures I put in place exist today
and we have not been back to that same level of bottleneck.
Mr. Coffman. From our review of the database record in
almost every one of these egregious cases where there was a
notation that a case was in abeyance the amount of time the
case was in abeyance was no more than 38 days and in many cases
was 21 days or less. How do you reconcile this with your
explanation that the cases took so long to process because they
were in abeyance?
Ms. Eskenazi. I am not familiar with the abeyance report
that you have. I will note that abeyance is a legitimate place
that we have at the Board, a charge, a workload charge, when we
have to for example contact the veteran about representation
clarification, ask them about a hearing request. And so in
those situations we cannot work the appeal. We will put it in
abeyance until we receive the response from the veteran. So
that is one example of abeyance.
Mr. Coffman. Okay. Just if you could drill down again why
these cases were held so long before you and your staff held
them back for rewrites?
Ms. Eskenazi. So you are referring to, again, the 2012, May
2012? Yes, that was some time ago. And cases first of all are
not just submitted signed. There is a pretty intensive review
process by the judge who is authorizing that decision. And what
you cannot tell from VACOLS reports is what is under any days.
So you have a charge that shows a number of days, but really
you have to look at the situation, the facts of the individual
case, to see was it something particular to that case? Or was
it just a sign of some workload strain in that particular
offices? Again, that May, 2012 time frame I took immediate
corrective action, and we worked through that as soon as that
came to our attention.
Mr. Coffman. Yes. Documentation from your office shows that
it took you 254 days to process one single case. The document
shows that you received the case to sign in October, 2011 but
did not sign the case until June, 2012. Can you explain that?
Ms. Eskenazi. Yes, I am familiar with that specific case
because again I remember this report from two and a half years
ago very clearly. That case was unfortunately a case in that it
was submitted and it had some errors in the draft decision. And
there were some personnel matters kind of connected with that
sort of inhibited my ability to swiftly move that case. That
case since has had a number of different decisions.
Mr. Coffman. Documentation from your office shows that Mr.
Hachey, the Chief Counsel for Operations in your office, held a
case for a total of 397 days before finally signing it, and it
took a total of 606 days to process a case. Can you explain
this?
Ms. Eskenazi. Sure. Again, for those watching we are
referring to a report from May 2012, over two and a half years
ago. And Mr. Hachey was doing great work assisting me in
reorganizing another area of the Board that had some challenges
and during that timeframe did not have the time that he needed
to carry out all of his duties. And that has since been
adjusted. I am very thankful for the funding that Congress has
provided over the years that has allowed us to equalize
staffing levels where needed to better ensure workflow.
Mr. Coffman. Thank you. Ranking Member Kirkpatrick.
Mrs. Kirkpatrick. Thank you, Mr. Chairman. Ms. Eskenazi, I
want to ask you what improvements you have seen since May of
2012, since that report was issued, to now? And then where you
see yourself going in the near future?
Ms. Eskenazi. Certainly. Again, back to that same report
for those watching, that report was reflective of a very small
part of the Board, an office we call the Appellate Group, which
functions like the Board's Office of General Counsel. I was
very concerned when I saw those numbers and I put in place much
more stringent measures than we had, such as a weekly status
report. And the staff to this day submit weekly reports that
not only show the case and the days but a description of the
status. So that is working very well for that small group of
that office.
There has been a number of measures put into place since I
became Executive in Charge 14 months ago. One of the first
things that I did is pick apart reports that we have and look
for what are the oldest cases that we have. We are required by
law to decide appeals in docket order and that docket changes
daily. And we want to make sure that no cases go sitting
unaccounted for a long period of time. So I devised a new
report that shows every single case in the custody of the Board
from the day it arrives to the day it leaves. And I look at
that report regularly, addressing cases with the longest amount
of days. And I have been successful in driving that number
down.
We also have put in a number of efficiencies in the way
that we do our work product. As our VSO colleagues have
testified, the appeals process is very, and as I stated, it is
very heavily set in law. So there is very little change that we
can do in how we provide our work product but yet there is
always room for improvement. We looked at our business,
drafting appellate decisions, and we trained our staff in ways
to become more efficient in their writing so that they are
focused, to the point. And we are also very mindful that we are
writing not only to ensure compliance with the law but we are
speaking to the veteran, the veteran who has been waiting too
long to get their final decision. And so better writing is one
effort that we have put into place. And we also, we set our
goal, we talked about our goal throughout the year. And that
kept people's eye on the mark. And I am very proud that, to say
that my staff to this day has issued 52,000 dispositions for
waiting veterans, which is more than we had in our inventory
last summer.
Mrs. Kirkpatrick. Do you need more attorneys and more
judges?
Ms. Eskenazi. This is a process, we have a lot of appeals
throughout the department. The Board is one part of the
process. We are kind of the end part after the appeals process
has been worked through the Veterans Benefits Administration.
We could always use more resources, and we are very thankful
for the resources that we have received in the past two years.
But we realize that it is not simply just a people issue. We
have to do better in not only our legislative process, and we
request support from the committee on proposals that we have
sent forward, and we continue to work with our VSO partners,
but we also need to look at where we can get a lift out of
technology. The department has made great strides with VBMS for
the claims part. And now, as I state in my opening statement,
is the time to work on appeals. And that is why the Board this
year launched a concept known as appeals modernization to study
exactly where we need to go with technology.
Mrs. Kirkpatrick. What is being done right now in terms of
the modernization of the appeals process?
Ms. Eskenazi. Certainly. One of the things that we know we
need are different features in the VBMS system that are
specific to appeals. Yet we have a long, long wish list so we
are working on prioritizing that and synthesizing exactly what
we need. So that when we get the funding we are looking for
that we are moving forward in a logical fashion. We also, we
have heard a lot of discussion today about the Board's tracking
database, VACOLS. It is an Oracle database that was built in
the 1990's and we track things by using a Power Builder
overlay. It is a very antiquated type of technology and we
really need a workload tracking database that is integrated
with VBMS so we do not have to rely on manual data entries.
Mrs. Kirkpatrick. Thank you. I think my time is about to
run out so I thank you again for appearing before the
committee, and I yield back.
Ms. Eskenazi. Thank you.
Mrs. Coffman. Thank you. Mr. Huelskamp.
Dr. Huelskamp. Thank you, Mr. Chairman. I appreciate the
opportunity to ask some questions. I will follow up on some
questions of the prior panel. First of all, who did pick the
production goal?
Ms. Eskenazi. I worked on that goal in conjunction with the
Office of the Secretary and the Office of Performance
Management. That goal is based on the simple formula of 90
decisions per FTE. We started the year with 613 FTE. Multiplied
by 90 that is 55,170 and very reflective of our level of
performance in seven fiscal years.
Dr. Huelskamp. You started this fiscal year with how many
employees?
Ms. Eskenazi. 613 FTE.
Dr. Huelskamp. According to your testimony there was a 30
percent increase in FTE. Over what time period was that?
Ms. Eskenazi. We started a hiring surge back in May, 2013
and since that timeframe we have increased on average of about
180 to 200 new staff. There has been some attrition in there.
Dr. Huelskamp. Wow, that is a lot of new staff. And how
many additional cases were worked roughly by this 30 percent
increase in FTEs?
Ms. Eskenazi. And last year our output at the Board was
41,900 appeals. This year we are on target to reach our goal of
55,170. It sounds like a bold number. I am very proud of our
staff to have reached that goal. Yet it is very commensurate
with our past performance.
Dr. Huelskamp. One thing we did hear though, that as far as
the measurement, that was shed on the ability to, about those
numbers that they are really measuring success when you triple
measurement of, is that not the case? That you are measuring
some of these cases, double or triple counting those, and that
helps achieve that 55,170 goal?
Ms. Eskenazi. We have measured our outward facing
performance the same way since 1991 when requirements were put
in place by Congress, published in our annual report. And we
measure outcomes from a jurisdictional standpoint commensurate
with many appellate bodies across the country.
Dr. Huelskamp. Were you triple counting in 1991 as
described here?
Ms. Eskenazi. We count transfer jurisdiction. So appeals
are in a process where they may come back to the Board, and
they may be the exact same matter or they may be a different
matter. And they evolve and we track cases that come in in a
particular fiscal year and dispositions the same way since
1991.
Dr. Huelskamp. Okay. The question I would have, I am
looking at a report from your Board dated September 4th. One
particular Judge Trueba has 24 cases that have been awaiting
assignment for more than 99 days, awaiting assignment. Can you
describe what is occurring and explain that?
Ms. Eskenazi. Certainly. We have a large number of cases in
our possession. We put them in our case storage if they are
paper. We have a lot more cases coming in electronically. And
we track them in their docket order. They are assigned in
docket order. And docket changes daily. As I indicate in my
opening statement, there are certain categories of cases that
we are very limited in our ability to move around the Board,
such as case in which a hearing was held by a particular
individual which is probably the case with Judge Trueba. Those
cases may only be disposed of by Judge Trueba under the law and
may not be reassigned to other individuals.
Dr. Huelskamp. Well as I understood, though, this was
awaiting assignment, but you believe it is just awaiting the
judge, maybe just a signature? Is this the case here?
Ms. Eskenazi. No, no, no. Those would be waiting for--well
again, I am not familiar with exactly what you have in your
hand. But cases come to the Board and then they await send-up
to a judge depending on their place in the docket and depending
upon if they have to go to a specific individual. Then an
attorney is assigned the case to draft a tentative decision,
and then it goes to the reviewing judge who would review it,
ensure that the decision is in compliance with the law----
Dr. Huelskamp. Well that is what I am trying to understand.
This is a report to maybe look at later. But there are, there
is Larkin, Graham, Crawford, Markey, Clementi, Strawman, Kane,
they have one, two, or three waiting. And but you have this one
particular judge with 24 cases that are 100 days or more. I am
trying to understand. They are still waiting on assignment, as
I understand that.
Ms. Eskenazi. Yes and----
Dr. Huelskamp. So they are just, what does the judge have
to do to assign the case?
Ms. Eskenazi. Cases are sent from our storage unit in
docket order for assignment, and again certain cases can only
go to certain individuals under the law. I would be happy to
take a look at the report that you have and provide some more
explanation. I think that it is indicative of, that is a small
universe of, we have a large number of cases----
Dr. Huelskamp. Well for the one, two, three, 24 veterans,
they do not care about your universe, ma'am.
Ms. Eskenazi. I understand. I agree with you completely.
Dr. Huelskamp. But the docket numbers, if you are assigning
that way then you are not taking them out of order? They are
not coming as they, they get held up based on the judge?
Ms. Eskenazi. We get new cases in every day and sometimes--
--
Dr. Huelskamp. How many outstanding cases do you have then?
Ms. Eskenazi. We have----
Dr. Huelskamp. How many veterans?
Ms. Eskenazi. We have 40,000 cases at the Board, and about
60,000 that are in our jurisdiction, and 20,000 of them are in
transit towards us at the Board. And it is a constantly
changing number. It does not undervalue the fact that we put
out 52,000 cases so far this year and when I stood before my
staff last summer we had 47,000 appeals on hand and we have
already surpassed what we had at that time. The problem is
there is a lot more in the pipeline coming our way.
Dr. Huelskamp. So, and Mr. Chairman, I apologize, so if I
understand correctly what you are saying here is in one year
you are moving through an entire year's backlog coming? There
is not an excess beyond a year in terms of the numbers waiting?
Ms. Eskenazi. And there is a lot more coming, we are aware
of that.
Dr. Huelskamp. Coming from where in the system?
Ms. Eskenazi. Appeals start at the Veterans Benefits
Administration.
Dr. Huelskamp. Sure.
Ms. Eskenazi. And many are resolved at that level. And ones
that are not resolved at those earlier appeals steps do make
their way to the Board.
Dr. Huelskamp. Then one last clarification, Mr. Chairman.
The time period we are talking about, the wait, that starts
when it first gets to the, your Board? Or when it started at
the prior?
Ms. Eskenazi. An appeal is, an appeal begins when a veteran
disagrees with the decision----
Dr. Huelskamp. When does the count start?
Ms. Eskenazi. It depends on what you are looking at. The
appeal starts when the veteran expresses their disagreement
with the VBA claims decision. The appeal starts, it goes
through many different steps. If they still disagree and they
perfect their appeal by filing a substantive appeal, that
preserves their place in line for coming to the Board. And that
is the point that we use to manage our workload.
Dr. Huelskamp. Okay. Thank you, Mr. Chairman. I appreciate
that.
Mr. Coffman. Thank you, Mr. Huelskamp. Mr. Takano.
Mr. Takano. Thank you, Mr. Chairman. Ms. Eskenazi, there
have been concerns raised with the screening process known as
rocket docket. What are your thoughts on the pilot program? And
will VBA be looking to expand the use of this method?
Ms. Eskenazi. That is a great question. When I first became
Executive in Charge 14 months ago and we knew that with the
volume coming our way that doing things the same old way was
not going to help our veterans. And we thought it was prudent
to look at every law available to us and make sure that we were
not underlooking, overlooking a provision. There is a provision
that Congress enacted in 1994, 38 U.S.C. 7107(f) which permits
the Board, an exception to docket order to look at cases out of
docket order to screen them. And if the record is inadequate to
actually remand it to VBA to get that needed evidence. And if
the case comes back in theory the case will be ready for a
judge to actually decide it, rather than having waited all this
time to then get to a judge only to have to be remanded. This
law had never been used in my 19 years at the Board and we
decided to pilot to see if we could save any wait time for
veterans. We looked at 47,000--I am sorry. 4,700 appeals
through the period of November and May. And out of those 4,700
we remanded approximately 1,100 or 1,200 under the rocket
docket to get that development completed. And I am happy to
report that 60 of those veterans approximately have had
benefits granted in full at the appeals management center and
those cases are out of the inventory now and the benefits are
in the hands of those veterans.
One of the constraints with the program is that we found
that it was challenging to screen an appeal effectively and not
be simply working the appeal. And so we did look for groups of
cases that were, had smaller numbers of issues with the view
that that is something that someone could quickly screen and
look for an undebatable development. In other words, we are
looking to see where we can grant benefits. We would like to
grant them where we can for these veterans. But where something
is needed we are trying to save wait time. Again, it was a
pilot for a limited period of time. It affected less than three
percent of the Board's overall output this year. And I am very
appreciative of the comments that have come forward in this
hearing and talking with our stakeholders. We did pause the
program at the end of May and whether we resume it remains to
be seen. Right now we are just analyzing----
Mr. Takano. So they were a very small portion, three
percent of the entire caseload, and you have paused the
program. What are your thoughts on the allegations that this
program was used to manipulate outcomes?
Ms. Eskenazi. I disagree with that statement because this
really was an effort to try and save veterans wait time. Our
veterans are waiting too long to receive the benefits that they
deserve and to receive appeals decisions. And there is a lot of
remands in the department today. And we are trying to just be
as efficient as possible in saving veterans wait time when
evidence is needed. But again, it was a pilot, very limited in
scope. And whether we continue it remains to be seen.
Mr. Takano. Ms. Kordich detailed what she called shifting
of old languishing cases around in the front office to reset
the calculation of how many days an appeal may have been in one
location. How do you respond to this description, and was it
accurate?
Ms. Eskenazi. I disagree with that description. Again
referencing back to a time two and a half years ago under prior
Acting Chairman Keller's leadership there was some workload
challenges in May 2012 and some appeals were not moving as fast
as they should. And it is difficult to tell from that report on
its own. Yet no veteran should have to wait and that is why we
are working on ways to address processes in which we can help
veterans receive the benefits that they deserve in a more
timely fashion.
Mr. Takano. Well there have been some, what about the
organizational climate at the BVA? There have been some harsh
criticisms expressed here by employees of the Board. Were you
aware, I mean, can you respond to those criticisms?
Ms. Eskenazi. Absolutely. I was very, you know, I have
worked at the Board for quite some time. And there were some
organizational climate challenges in past years. And that is
why when I became Executive in Charge one of the first things I
did is address the issue of organizational climate. And over
the course of my 14 months I have put a number of measures in
place. Last fall the Board staff participated in a VA all-
employee survey and we had a 92 percent participation rate in
that survey. And that was increasing it from the prior year
when there was only a 12 percent response rate. We were able to
get meaningful data at how employees think we are doing our
job. And I did not just get the data and put it in a, you know,
tuck it away, I immediately met with my management team and I
have continued to meet with them over the course of the year to
look at how we were graded and see where we can make
improvements. I also put together an all-employee survey focus
group that has been meeting since April. They presented 13
ideas to management in August and management agreed with every
single one of the employee drive suggestions. We look forward
to implementing all of those and we have had a number of other
focus groups with the judges, an organizational climate group,
we have provided training, I have done countless things to
address climate. And I think that we have made improvements but
we still have work to do.
Mr. Takano. I thank you, Mr. Chairman.
Mr. Coffman. Dr. Roe.
Dr. Roe. I thank the chairman. Do you have a picture of the
veterans on those cases when they come?
Ms. Eskenazi. No, we do not.
Dr. Roe. Maybe you should. And what you are dealing with
there is a, and let me tell you what I hear at home. What I saw
here was, and I am not going to call this person's name out
again, but documentation from your office shows that the Chief
Counsel of Operations in your office held a case for 397 days
before finally signing it. It took a total of 606 days to
process the case. And I guess this is after it got to the
Board. And you explained, as I understood it when you first
started your testimony, that this, he was very busy and did not
have time. That is the lamest excuse I have ever heard in my
life. And what I hear veterans tell me is that, doc, I think
they are just hoping I will die. They will not, I do not hear
anything. And after 600 days I can kind of understand why a
veteran would feel that way. That is absolutely not an excuse,
I did not have time to sign a piece of paper to get this
veteran, and I would like to have that person stand in front of
that veteran's family, as I have had to do for 30 years, and
take responsibility for what I do. When I got out of the
operation room I had to go look that family in the eye and talk
to them. There is no picture. Nobody were held accountable.
There are people waiting at home to pay their light bill for
these cases. These are people we are talking about. And you
should have to look at that. And somebody who waited two years
ought to have to go in front of that veteran and their family
and look them in the eye and say it was me that did that. I am
the one that created that problem and did not, and I am not
going to call this person's name out. They are probably a
really nice person. I probably would like them. But my point is
is that this has been going on too long. And the veteran starts
to count on when their piece of paper is, the day they lick the
stamp and send it out the front door, not the day you get it.
So it may have been in the pipeline three, four, five years to
get adjudicated. And I cannot for the life of me understand why
anything would take that long.
Ms. Eskenazi. I agree that no veteran should have to wait
lengthy periods of time to receive their appeals decision.
Dr. Roe. But they are.
Ms. Eskenazi. And they, they need to receive not only
timely appeals decisions but accurate appeals decisions as we
have heard in the testimony earlier today. And the Board staff
are very committed to doing that work. We have a process that
is very densely set in law. And that is why we are really
looking forward to continuing to work with the VSOs and the
committees to look at ways that we can offer veterans choices
and put the decision in the hands of the veteran as to do you
want to go this route or do you want to go this route to a
quicker decision?
Dr. Roe. My time is running out. But you think, this
particular person got $21,000 in bonuses. And they may have
deserved them, I do not know. But it would be hard for me to
look at a veteran if it took 600 days and say, oh, this person
that worked on your case got a bonus but it took you 600 days
when you did not have any money, nothing to pay your bills
with. And I have got, the other thing Dr. Huelskamp was talking
about this a minute ago. It is a case a person. In other words,
there is a difference between cases if they are getting counted
two or three times, or when you tell me 50,000, is that 50,000
people? Or is that 50,000 times somebody has touched this case
and done something with it?
Ms. Eskenazi. That is 50,000 veterans.
Dr. Roe. So it is, so when you said last year it is 50,000,
47,000 or whatever the number was, it was a huge number, were
adjudicated and cleared, those are people? Not just----
Ms. Eskenazi. Those are people. There are many more issues
on top of that. Each one of those people may come to the table
with one, two, three, or more issues.
Dr. Roe. I certainly understand that. But that is a closed
case? That is not one where a veteran, like we hear these
counts of two or three times where these numbers look better,
but that is an actual veteran?
Ms. Eskenazi. Again, we have tracked our output the same
way since 1991. We track dispositions. It is a jurisdictional
tracking process. And we track whether the matter is allowed,
denied, or remanded. And we really are focused on serving as
many veterans as we can in a fiscal year while maintaining high
quality in that process.
Dr. Roe. I, look I appreciate that. This is not easy, what
you are doing. I certainly, I have been to Detroit and looked
at the central records there for several years, and my
goodness. I mean, it is mind-boggling how much paper you all
have to go through. And I know it is a tremendous amount of
work. But there is a person at the end of that sheet of paper.
And there is, and I think about these guys and gals that
crawled around in the mud, and been shot at, and eaten bad
food, and missed Christmas with their families, and missed
their children being born serving this country. And many of
them had horrific injuries. And many of them did not make it
back. You do not have to worry about them, the ones that did
not make it back. But it is incumbent on us to serve the ones
who did make it back. And I want a commitment here today that I
do not want to be sitting here a year from now and hearing that
some veteran had 600 days that they had to wait I guess just in
the time it got to the Board to get this adjudicated. My time
is expired. I am, thanks for the indulgence. I yield back.
Mr. Coffman. Thank you, Dr. Roe. Mr. O'Rourke.
Mr. O'Rourke. Thank you, Mr. Chair. For Ms. Eskenazi, when
I get a report on outstanding appeals in the Waco VBA Regional
Office are those appeals within your jurisdiction?
Ms. Eskenazi. No, they are not.
Mr. O'Rourke. So when I, so they will say we have so many
appeals pending, and one of them, they will tell me how many
are in NOD status, or notice of disagreement, Form 9, and then
a certain number in remand. Those, when we are talking about
remanding that is a different number than the one that we are
talking about?
Ms. Eskenazi. Correct. That is under the auspices of the
Under Secretary for Benefits.
Mr. O'Rourke. Great. Okay. When we were discussing earlier
with the prior panel the express appeals act, or perhaps some
other bill that might address overall wait times and for
veterans who have claims under appeal, anything that you want
to add to that discussion from your perspective? What we should
be talking about or thinking about?
Ms. Eskenazi. Yes. This process is very unique compared to
any system I have ever seen. It is a, on one hand you can argue
that this process provides the veterans countless avenues of
due process and the department is charged with assisting the
veteran in substantiating his or her claim for benefits. There
is an open record and we are required at the very last point in
the appeals process to accept new evidence. And if that
evidence indicates that a medical condition has changed to get
an updated examination, which may require sending the case back
to have an examination undertaken and to have the case then
readjudicated at that first level before it comes back to the
Board. That is the one right to review on appeal to the
Secretary. This is a process that, as I stated, has been built
up over 80 years. And it is in dire need of taking a hard look
at the laws that we have in place and looking at what we can
agree upon in the process by way of improvement to give
veterans faster yet quality decisions. And the VA has been very
participatory with, the House hosted a round table back in
October, we participated in a round table in March before the
Senate, and we have been meeting regularly with our VSO
partners.
There are many different ways to approach this. And what we
all need to do is keep the focus on why we are here, which is
the veteran. And we need to be continuing to keep that in the
forefront so faster still is quality.
Mr. O'Rourke. Another related question. You made a comment
earlier, you reminded us that, you know, a lot of this is
heavily set in law. That was your phrase. And so since you are
in the business of laws what is your, you said there were
several recommendations that you had sent to us. Could you
highlight the critical one that would make the difference that
would free you from some laws that prohibit you from innovating
or doing things more quickly?
Ms. Eskenazi. Certainly. One proposal that we have sent
forward over a number of years and has had some discussion is a
proposal to allow the Board to schedule video teleconference
hearings. Right now we have to wait for veterans to elect a
video hearing. And we are still sending some of our 65 judges
around the country, sometimes to Manila, to conduct the face to
face hearings with our veterans. And certainly that is a
wonderful opportunity to have that face to face meeting with
our veteran, to shake the hand, to meet the family, and we love
that opportunity. At the same time it is resource intensive, it
is time intensive to send our judges around the country because
we have hearings represent about 25 percent of our workload and
we have a lot of other decision work to do. So the video
teleconference legislation that we have put forward and it has
had some discussion we really would be very happy to see that
put into place.
Mr. O'Rourke. Great. Thank you. I appreciate it.
Mr. Coffman. Mr. Walz.
Mr. Walz. Well, thank you for being here, Ms. Eskenazi. I
appreciate that. And I also appreciate at last some of these
concrete things that we can do. And this is one we have heard
for quite some time that I think makes sense in a modern world
and some things that we can get done, try to get it fixed. You
listened to the first panel and I get at the heart of this,
that we know we have got veterans, we have got a legal process
in there, we want fairness, we want to make sure that the
claims are correct and all that. But I keep coming back to,
because of course there is, we cannot separate, I understand
they are totally different agencies, VHA, and things like that.
But in the public's mind, what Dr. Roe and others keep coming
back to, it is about the veterans, it is not about numbers, it
is not about all that. And understand our position on this.
When we have whistleblower here, and you disagree with the
position where it is at, and then you tell me data bout
satisfaction or whatever, data is the one thing in this
committee we are very, very skeptical of. Because they were
meeting their goals in Phoenix too prior to everything
happening. So my question is how beyond what you said of people
coming and the satisfaction rating, how do you break this down?
Or is this an outlier? Is this someone who is an outlier in the
case? Or how do you respond to that? Because those are pretty
damning comments that somebody is sitting there not caring and
shutting down the folks, the attorneys that are trying to get
this done.
Ms. Eskenazi. Absolutely. And that is not something that
just turns overnight. I think cultural change takes quite a bit
of time and a lot of work. I think that we have put a lot of
great things in place at the Board during my 14 months as
Executive in Charge. But clearly we are not there yet. Our
Secretary is very committed to hearing constructive criticism,
as am I, from all stakeholders. Ultimately we need to get it
right for the veteran and we need to hear.
I mean, when I first heard about this hearing for example
the first thing I did is send a note out to my entire staff
providing them once again, the third time in three months, the
no fear whistleblower protection rights that they have, and
saying, look, we need to celebrate our successes and where we
can do better we need to welcome our staff to feel safe to come
forward and provide this constructive criticism. I actually met
with Ms. Kordich in a very small group last week. The position
of senior counsel has a very unique vantage point in our work
at the Board and met with them around the table, went around
one by one, and I said there is this hearing coming up, very
concerned about the original title, ``Data Manipulation and
Mismanagement.'' And I said is there anything that you are
aware of that we can work to do better? So Ms. Kordich did not
bring to me all the things that she brought today, but I really
look forward to setting a meeting with her and having more of a
dialogue.
Mr. Walz. Okay.
Ms. Eskenazi. And again, I welcome all types of feedback,
the good, the bad, the ugly.
Mr. Walz. Is that the normal chain of command? I mean is
this something, and she has got a chain of command, but if she
is out of it do they, do you think she felt like she knew she
could just come to you and get this done?
Ms. Eskenazi. I hope so. But clearly if people do not think
that I need to work harder on that.
Mr. Walz. Would that help if the Chair of the Board were
confirmed and in this? Or is this something, is that irrelevant
to what we are doing? You know, we said we had this opening,
she talked about there is an opening with the Chair?
Ms. Eskenazi. Yes, certainly that position has been vacant
since February, 2012. I think that the right type of leadership
can certainly----
Mr. Walz. So two things there. Either that is a totally
irrelevant position that should be eliminated, or somebody is
really messing this up. And so my take on this is I do not know
how to go home and explain something like that. Especially, I
mean and candidly, is it just politics holding this up? I mean,
and all of us are part of that.
Ms. Eskenazi. I mean, I am not involved in that process.
Obviously that is a political process. I can say that I have
only been in this capacity in the past 14 months and during
that time we have put a lot of good measures in place. And I am
very proud of the work that our staff has done. We do have a
lot of hardworking staff and I do not want to undervalue that
statement. I mean, our staff have really pulled through this
year. And many of them are veterans or family members of
veterans. In fact just last month I supported a staff driven
request to have what we call a veterans service forum, where
the staff were meeting on a regular basis and putting, just
educating others who may not have served on active duty about
what it is like to serve on active duty. And I am very
supportive of all these employee driven initiatives.
Mr. Walz. I agree. And I appreciate it. And I think that is
the right way. I think you know this too, and it keeps coming
back up. This is a zero sum proposition, though. If one veteran
is waiting for four years that is what the story is going to
be. So we have to, I mean, this has to be beyond six sigma. I
mean, that has to be your goal. And I know that is a challenge.
I guess our take is on this is there any way to, you know,
triage and spot check that? Dang, if they are waiting for a
signature personally walk over there and grab it and carry it
to the judge and say finish this one now? I mean, legally are
you tied that you cannot do that from docket order?
Ms. Eskenazi. We do triage wait times within the Board. We
have a number of internal management tools that we use. We are
very mindful of the fact that staff, you know, we do not want
to pressure our staff. We want them to feel safe to do quality
work and meet their production goals.
Mr. Walz. I agree. I agree.
Ms. Eskenazi. But we do monitor that to make sure that, I
mean, right now we have a database that is basically based on
people entering data into it. And sometimes we need to
constantly check what is in the database and make sure that no
veteran's work has gone, you know, neglected. And that is why I
put in the report in December of ranking every single case
under the Board's jurisdiction and looking at it to see if
there is any gaps or pitfalls and how we can assist.
Mr. Walz. I appreciate it. And that technology, that is a
whole other giant can of worms. Of why you are using an
outdated piece of software when you have been given billions to
not have that happen. That is another time.
Mr. Coffman. Very quickly, Ms. Eskenazi, according to the
interviews from the Oversight and Investigations Subcommittee
staff to Ms. Kordich, her testimony was to the effect that she
took the issues to the union representatives and the union
representatives had taken her complaints to your office. Is
that correct?
Ms. Eskenazi. I meet regularly with our partners in AFSCME
17. Actually we were supposed to meet with them this Monday and
that meeting did not take place. And whenever they raise
concerns, I am not aware of, you know, some of these things we
have talked about before. And we look forward to continuing to
partner with them. Our union representatives represent the
bargaining unit members of the Board. But we are happy to talk
to them about any of our staff or any concerns that anyone has.
I appreciate the feedback.
Mr. Coffman. Well again, my understanding is that no action
was taken on the complaints given. Can you elaborate on that?
No action was taken by you on the complaints brought forward to
you via union representatives?
Ms. Eskenazi. Which complaints in particular?
Mr. Coffman. That of Ms. Kordich, that she testified on
today.
Ms. Eskenazi. Yes, I just saw her testimony today coming to
this committee and there are many things in there, some of them
I had not seen before. But again, I look forward to meeting
with her or any others in the union, anyone at the Board, to
continue to discuss these issues.
Mr. Coffman. It is my understanding also that by law you
can certainly take a course, I mean, take a case out of the
docket sequence, but you cannot adjudicate a case outside the
docket sequence and yet you have been doing that to make the
numbers look better. I wonder if you could comment on that?
Ms. Eskenazi. By law we are required to adjudicate appeals
in the order in which they are placed on the docket, which is
commensurate with the point in time at the VBA level. We have
certain exceptions to put in front of the line case, veterans
over the age of 75, veterans with severe illness or financial
hardship, homeless veterans, and we do that regularly. We have
a docket that changes everyday and we try to adhere to that,
again using kind of manual processes and antiquated databases.
Under the rocket docket program cases were taken out of docket
order legitimately to prescreen to get the development that may
be needed to get the case more ready to go to a judge. There
were a small number of cases that were actually adjudicated
during that process out of docket order. But for the most part
they were allowances where somebody had screened the case----
Mr. Coffman. But what does for the most part mean?
Ms. Eskenazi. It means that there was about 400 that were
decided out of docket order and the majority of those were
actually allowances. So rather than putting the case back on
the shelf----
Mr. Coffman. So to your knowledge there was no violations
of law in that your employees took a case out of order and
adjudicated that case in violation of current law?
Ms. Eskenazi. I am sorry, could you repeat that again?
Mr. Coffman. That to your knowledge then there is no
evidence that you are not aware that cases were taken out of
sequence in violation of current law and adjudicated?
Ms. Eskenazi. Cases were taken out of sequence for purposes
of prescreening----
Mr. Coffman. In violation of current law?
Ms. Eskenazi. There were some cases that were allowed out
of docket order.
Mr. Coffman. And so to your knowledge no cases in violation
of current law were taken out of docket order and adjudicated?
Ms. Eskenazi. I just said there were some that were allowed
out of docket order, yes.
Mr. Coffman. You are saying that that was within current
law?
Ms. Eskenazi. Again, there were some, a small number of
cases that had been identified for the rocket docket screening.
And rather than remand those cases, the----
Mr. Coffman. I am going to take it that that is in
violation of current law. Very well. Thank you for your
testimony.
Ms. Eskenazi. Benefits were allowed for those veterans in a
small number of cases.
Mr. Coffman. Okay. Ranking Member Kirkpatrick.
Mrs. Kirkpatrick. I just have one question. I am really
just trying to grasp the magnitude of this problem. Given your
existing staffing and your existing resources, if you did not
get another appeal, this is hypothetical I know. But if another
appeal did not come in and you just had your existing caseload,
how long would it take you to adjudicate your current caseload?
No new cases.
Ms. Eskenazi. That is a great question. The Board's
inventory today, and this is both physically at the Board and
in transit from VBA, is approximately 60,000 appeals. Given
that in this past fiscal year we had dispositions of 52,000
appeals we could probably clear that inventory in just over a
year using that same type of methodology. Keep in mind that a
large number of the dispositions that we do at the Board are
not final decisions. They are situations in which a
circumstance has changed and we have to send back the appeal.
So ordering perhaps a new examination to try and see if
something can be obtained to substantiate that veteran's
appeal. So built into this very unique appeals process that we
have for veterans benefits law is a natural redevelopment
cycle. And it is very unique among other legal systems that we
have a system in which there is still an open record at the
very end and still development work.
Mrs. Kirkpatrick. Factor in that in your wait time. I mean,
I am just trying to think from the veteran's perspective. So
you said you have got so many cases right now, no new ones come
in, I mean completely adjudicating the case so the veteran
knows whether or not their claim has been processed. How long
will that take?
Ms. Eskenazi. Yes. And again, I want to restate my
statement that no veteran should have to wait. I would like to
turn to my Chief Counsel for Policy who just started at the
Board a couple of years ago, came from the United States Court
of Appeals for Veteran Claims, and has studied this very unique
process in depth for many, many years. And he is an expert on
this topic of this unique process. Mr. Ridgeway.
Mr. Ridgeway. Sure. If you assume that we got no additional
new cases we would have to do a regression analysis of what
would happen to our current inventory. And historically what we
would see is that about half of those cases would be resolved
and then some veterans would have at least some of their issues
remanded, and we would get about a third of those back. And
then you would assume that, you know, half of those would get
resolved, there would be more remands and then a third of them
would come back. And so the number would go down from 60,000 to
20,000 to 7,000, just doing the math in my head. But that would
still even with the regression be probably close to a little
under two years, I would think, if I do the math.
Mrs. Kirkpatrick. Okay. Thank you. Thank you, Mr. Chairman.
Mr. Coffman. Mr. Huelskamp, and then other members who have
questions, I will entertain those questions.
Dr. Huelskamp. Thank you, Mr. Chairman. If I might follow
on this question of the very long outstanding case with Mr.
Hachey, and who was very busy for many, many days, who did
receive a significant bonus I guess because of his business.
But why did it take Mr. Hachey 250 days to return this case to
the attorney?
Ms. Eskenazi. Sir, I would have to look into the
circumstances of that individual case. Mr. Hachey is one of the
brightest employees at the Board. And every case at the Board
does not necessarily move at the same rate of time and you have
to look into the individual case to ascertain exactly the
circumstances of that specific case.
Dr. Huelskamp. I cannot even fathom, 250 days? Just a wild
guess of why----
Ms. Eskenazi. We do have, we do have----
Dr. Huelskamp. Let me understand, if I could.
Ms. Eskenazi. Certainly.
Dr. Huelskamp. So you have got to go in order, as I
understand that. I presume during that 250 days he took every
case out of order on top of it? Is that right? Or did he, he
was doing other cases, right? For 250 days, I assume he was
doing other cases, right?
Ms. Eskenazi. He has many other duties besides adjudicating
appeals. That is an ancillary duty for the position that he
holds.
Dr. Huelskamp. If he worked on other cases was he taking
them out of order, then?
Ms. Eskenazi. Cases are distributed from our central case
storage, and that is the point at which they are coming out of
order.
Dr. Huelskamp. No, the question is was he taking them out
of order? I presume he was not working on one case for 250
days. Is that correct? I mean, he got a significant bonus.
Ms. Eskenazi. I am not aware of him taking cases out of
order. There are certain circumstances----
Dr. Huelskamp. That is what I am trying to understand. I
presume he did do one case and take 250 days. He took one case,
put it on his desk somewhere, or in the file, and he worked
others, and then decided I am going to go back and do Mr.
Cisneros. That is what I understand. What happened here? And if
you can get back to me as well. And Mr. Ridgeway, we handed you
that listing of the one judge that was waiting. Do you have any
comment on that? That is your report, not ours. So can you
describe why there is 24 cases waiting on this judge for over
100 days?
Mr. Ridgeway. This is not a report that I generate or I
use. This is a tool that is used by other parts of the Board,
so it is not one that I am competent to speak of.
Ms. Eskenazi. Certainly I am happy to speak to this report.
This is a report that was, we have many internal management
reports. This is a report that is looking at how long a case
has been in a particular location for individuals to ensure
work flow and it is a management tool used so that when there
are spikes in the numbers you can go to the person with that
case and say what is going on in this particular situation? Is
there something that you need assistance with to get this work
done? As I indicated, there are certain cases that by law can
only be decided by certain individuals, when a hearing is held.
And that is why as I start the fiscal year and I am setting the
hearing schedule for this year I ordered that for people that
had certain levels of cases that only they could decide that
they not be doing hearings for some time, since those hearing
cases can only be decided by that judge. So we also have to
understand that there are certain situations----
Dr. Huelskamp. I do not want to----
Ms. Eskenazi. Sure.
Dr. Huelskamp [continuing]. Take up everybody's time with a
long explanation. I just want an answer to why that judge is
sitting on 24 cases. Thank you, Mr. Chairman. I yield back.
Ms. Eskenazi. Thank you.
Mr. Coffman. Are there any further questions?
Dr. Roe. Just one brief one.
Mr. Coffman. Dr. Roe.
Dr. Roe. We have got to go vote. I do not think you ever
answered the chairman's question.
Ms. Eskenazi. Okay.
Dr. Roe. Ms. Kordich went to the union. The union did or
did not come to you with a complaint, and you did or you did
not address those complaints? Now is that, now that, I never
did hear you answer his question.
Ms. Eskenazi. There are----
Dr. Roe. There were issues she had. She addressed those
issues through the avenue that she knew, which was through her
union representative. Did that person come to you, or persons?
Ms. Eskenazi. I have not specifically discussed Ms. Kordich
with the union. Some of the issues Ms. Kordich raised I
discussed with the union, but I have not been made aware that
they came from Ms. Kordich.
Dr. Roe. Okay. So okay----
Ms. Eskenazi. Today she----
Mr. Roe [continuing]. You just, okay, I got it.
Ms. Eskenazi. Rocket docket I discussed with the union on a
number of occasions.
Dr. Roe. You did not know it came directly from her?
Ms. Eskenazi. That was not brought to me, no.
Dr. Roe. And that is all I wanted to know. Okay, that makes
sense. I yield back.
Mr. Coffman. Mr. Takano, please quickly.
Mr. Takano. Quickly, Ms. Eskenazi, you said rocket docket
you discussed a number of occasions with the union. Why? Why
was it such a subject of discussion?
Ms. Eskenazi. Well we have obligations under the contract
in the department to raise matters with the union when it may
be considered a change in working conditions and we interpret
that very broadly. And every time we are about to start any
type of a new program, even the poster contest that was
referenced here earlier, we do a memo describing what we are
about to do, provide that to the union, and offer them an
opportunity to discuss. Sometimes they do step forward and we
discuss the matter. Other times they receive the memo and they
do not discuss.
Mr. Takano. Well my question is they were not bringing up
objections to the fact that cases might be adjudicated out of
order? That was not any part of what they were complaining
about?
Ms. Eskenazi. They had some concerns about the metrics used
to select the cases for screening. And we used cases that had
one or two issues and reasonable volumes in order to gain
efficiencies in the screening process.
Mr. Takano. All right. Thank you, Mr. Chairman.
Mr. Coffman. Anyone else? Our thanks to the panel. You are
now excused.
Today we have had a chance to hear about many problems and
abuses occurring within the Board of Veterans' Appeals related
to the processing of veterans benefits claims. From the
testimony provided and questions asked today I am alarmed at
the excessive delays of our veterans claims and the length the
BVA will go in order to hide that fact. As such this hearing
was necessary to accomplish a number of goals. First, to
identify the tactics being implemented by the BVA to hide
excessive delays in processing veterans claims. Second, to
require VA officials to explain their actions with regard to
this manipulation of data. And third, to determine what steps
are being taken or will be taken to correct these issues and
improve the processing of veterans claims. I ask unanimous
consent that all members have five legislative days to revise
and extend their remarks and include extraneous material.
Without objection, so ordered.
I would like to thank all the witnesses and audience
members for joining us here today on this critical issue.
Ms. Eskenazi. Thank you.
[Whereupon, at 3:12 p.m., the subcommittee was adjourned.]
APPENDIX
Prepared Statement of Ann Kirkpatrick, Ranking Member
Thank You, Mr. Chairman, and thank you for holding this hearing on
this important topic.
I would like to thank the witnesses for coming today to appear
before the subcommittee.
Over the last number of months we have become increasingly
concerned that in the months and years ahead, we may be facing a new
crisis with veterans waiting too long for decisions on their appealed
claims for benefits. This is a critical concern to all of us, and
having a hearing on the board of veterans' appeals is long overdue.
I am concerned about the number of complaints and letters from
various sources who have made significant allegations that employees
may be attempting to game the system, are providing poor leadership, or
that the electronic processing system, VBMS, of which taxpayers have
invested hundreds of millions, is not performing adequately at the
appeal level. Indeed, VBMS may not be ready for prime time.
We must be assured that the data we get is accurate and represents
the reality faced by our veterans. As we saw in Phoenix, this is
essential not only for our oversight purposes, but to ensure that
senior VA leadership has an accurate picture in order to provide
leadership, plan for increased appeals in the future, and ensure the
appropriate resources and tools are applied to address the problems as
they exist before we face another crisis.
I routinely hear from veterans in my district and in Arizona. They
tell me that they are waiting years to receive a decision on their
appeals. This is unacceptable. Our veterans deserve better.
This is what we are all focused on today--how to address the real
delay faced by veterans. I think we can all agree that more needs to be
done and that there is a real concern that we may be exchanging a
backlog crisis for an appeals crisis.
Nationally, the average length of time to receive a decision on an
appeal in FY 2013 was 960 days--nearly three years. Since then, the
number of appeals has continued to grow. BVA projects a nearly 20%
increase in the number of cases received at the board this year alone.
As the VA continues to adjudicate claims more quickly, we should only
anticipate the number of appeals waiting for a decision to increase.
This means that without further action, our veterans will be forced to
wait even longer for a decision on their appeals.
Another factor leading to additional delays is that almost half of
the cases sent to the board are remanded back to the VA for additional
evidence or due to errors on the part of VA. A remand adds nearly a
year to the time it takes for a veteran to receive a decision. To
veterans who have already waited patiently through the VA backlog, a
period nearing four years for a decision on an appeal is intolerable.
Solutions are needed to ensure that we begin to reduce these delays
and to ensure that the delay in appeals is not the next big crisis. I
am hopeful that today's hearing will provide us with the opportunity to
begin to identify solutions.
I am particularly interested in hearing from Congressman O'Rourke
about a voluntary alternative appeals process he developed with DAV.
This may be one solution to decrease the amount of time our veterans
must wait for decisions on their appeals.
Another solution may be that more data is needed, not just better
data. Congress, VA, veterans, and VSOS should all trust the quality of
the data we are getting, and be satisfied that the data we are getting
provides us with the information we need.
I wish to thank the American Legion for emphasizing this in its
testimony. VA provides an extensive amount of weekly data on VBA
claims. By comparison, the board of veterans' appeals provides an
annual report. I hope that we can begin the discussion today on how we
can provide veterans with a better understanding of where we should be
with regards to reaching timely outcomes on appeals.
Simply put, veterans should receive better timelines and
information than they currently get and congress should be receiving
more frequent updates on the performance of BVA. Providing more
comprehensive and accurate data will better enable us to provide
oversight and work with BVA to find solutions to problems before these
problems reach crisis status.
Thank you, Mr. Chairman, and I yield back.
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