[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


       TBI CLAIMS: VA'S FAILURE TO PROVIDE ADEQUATE EXAMINATIONS

=======================================================================

                                HEARING

                               BEFORE THE

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                                 OF THE

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                        WEDNESDAY, JULY 13, 2016

                               __________

                           Serial No. 114-76

                               __________

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                     COMMITTEE ON VETERANS' AFFAIRS

                     JEFF MILLER, Florida, Chairman

DOUG LAMBORN, Colorado               CORRINE BROWN, Florida, Ranking 
GUS M. BILIRAKIS, Florida, Vice-         Minority Member
    Chairman                         MARK TAKANO, California
DAVID P. ROE, Tennessee              JULIA BROWNLEY, California
DAN BENISHEK, Michigan               DINA TITUS, Nevada
TIM HUELSKAMP, Kansas                RAUL RUIZ, California
MIKE COFFMAN, Colorado               ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio               BETO O'ROURKE, Texas
JACKIE WALORSKI, Indiana             KATHLEEN RICE, New York
RALPH ABRAHAM, Louisiana             TIMOTHY J. WALZ, Minnesota
LEE ZELDIN, New York                 JERRY McNERNEY, California
RYAN COSTELLO, Pennsylvania
AMATA COLEMAN RADEWAGEN, American 
    Samoa
MIKE BOST, Illinois
                       Jon Towers, Staff Director
                Don Phillips, Democratic Staff Director

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                   RALPH ABRAHAM, Louisiana, Chairman

DOUG LAMBORN, Colorado               DINA TITUS, Nevada, Ranking Member
LEE ZELDIN, New York                 JULIA BROWNLEY, California
RYAN COSTELLO, Pennsylvania          RAUL RUIZ, California
MIKE BOST, Illinois

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.
                            
                            
                            C O N T E N T S

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                        Wednesday, July 13, 2016

                                                                   Page

TBI Claims: VA's Failure To Provide Adequate Examinations........     1

                           OPENING STATEMENTS

Honorable Ralph Abraham, Chairman................................     1
Honorable Dina Titus, Ranking Member.............................     2

                               WITNESSES

Mr. Dave McLenachen, Deputy Under Secretary for Disability 
  Assistance, Veterans Benefits Administration, U.S. Department 
  of Veterans Affairs............................................     4
    Prepared Statement...........................................    18

        Accompanied by:

    Ms. Patricia Murray, Chief Officer, Office of Disability and 
        Medical Assessment, Veterans Health Administration, U.S. 
        Department of Veterans Affairs

    Ms. Mary Glenn, Acting Deputy Director, Operations, 
        Compensations Services, Veterans Benefits Administration, 
        U.S. Department of Veterans Affairs


 
       TBI CLAIMS: VA'S FAILURE TO PROVIDE ADEQUATE EXAMINATIONS

                              ----------                              


                        Wednesday, July 13, 2016

             U.S. House of Representatives,
                    Committee on Veterans' Affairs,
                      Subcommittee on Disability Assistance
                                      and Memorial Affairs,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10:00 a.m., in 
Room 334, Cannon House Office Building, Hon. Ralph Abraham 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Abraham, Titus, Lamborn, Brownley, 
Zeldin, Ruiz, Costello, and Bost.
    Also Present: Representative Walz.

          OPENING STATEMENT OF RALPH ABRAHAM, CHAIRMAN

    Mr. Abraham. Good morning. Welcome. This oversight hearing 
of the Subcommittee on Disability Assistance and Memorial 
Affairs will now come to order.
    Before we begin, I would like to ask unanimous consent that 
our great colleague Representative Walz be allowed to sit in at 
the dias and ask questions.
    Hearing no objection, so ordered.
    I do again want to thank everybody for being here today. 
The hearing will focus on the finding the VA provided over 
24,000 veterans with inadequate examinations for traumatic 
brain injury, also called TBI.
    TBI is caused by trauma to the brain and can be mild or 
serious. It has been called the signature injury of Iraq and 
Afghanistan wars because so many servicemembers suffered TBI as 
a result of a nearby explosion or being struck in the head.
    TBI is also referred to as the invisible disease, because 
it can be difficult to detect. Many patients look normal on the 
outside, but experience serious symptoms including headaches, 
mood changes, ringing in the ears, difficulty concentrating, 
and a reversal of sensory feeling. As a physician, I know it is 
imperative and often life-altering for patients to receive a 
correct diagnosis as soon as possible.
    It seemed as though VA recognized the importance of a 
correct diagnosis too. In 2008, VBA instituted a policy that 
required initial TBI examinations be performed by a 
neurologist, psychiatrist, physiatrist, or neurosurgeon. VA 
refers to these specialists as the big four. However, contrary 
to its own policy, we recently learned that between 2008 and 
2015, 24,000 veterans did not receive adequate TBI exams 
because they were not evaluated by one of the big four and, 
even worse, VA only discovered the problem after a 2015 news 
report revealed that 300 veterans in Minnesota received exams 
conducted by unqualified medical professionals.
    And this raises the obvious questions: Why didn't the VA 
ensure that veterans who filed TBI claims receive adequate 
examinations? Were disability examination contractors required 
to use the big four for initial TBI examinations? Why did the 
VBA issue conflicting guidance regarding TBI exams? What 
procedures has the VA implemented to ensure that disability 
examinations will be conducted by appropriate specialists? And 
finally, what steps has the VA taken to ensure impacted 
veterans have the opportunity to request a readjudication of 
their TBI claims?
    Unfortunately, it is likely that some veterans with 
meritorious claims may have been denied benefits. And although 
I appreciate that the VA took the initiative and conducted a 
nationwide review after the problem was first uncovered in 
Minnesota, I am frustrated that the VA failed to implement 
procedures to ensure VBA policies were followed.
    This failure likely caused affected veterans serious 
medical, financial and emotional hardships because they have 
not received medical care to heal them or compensation to 
assist them, all because the VA does not enforce compliance.
    Committee staff hearings have been trying to get to the 
bottom of what happened and who is responsible, but even after 
four separate briefings the answers are not clear.
    The only issue that is clear to me is that the VBA and the 
VHA created a royal mess by not communicating with each other 
in the way they should and that senior VA employees once again 
failed to hold subordinates accountable. I also remain 
concerned about other disability rating policies that VA could 
have been ignoring for years.
    Although I am sure that the witnesses will be able to shed 
some light on the issue, I am not confident that even after 
this hearing we will completely understand how VA missed the 
problem for so long. I look forward to getting more information 
from the witnesses.
    With that, I call on our distinguished Ranking Member, Ms. 
Titus, for her opening statement.

        OPENING STATEMENT OF DINA TITUS, RANKING MEMBER

    Ms. Titus. Thank you very much, Mr. Chairman. Thank you all 
for being here. And I am delighted that we have Mr. Walz 
joining us, because he has been working on this for quite some 
time.
    As you said, Mr. Chairman, traumatic brain injury is one of 
the signature injuries affecting our post-9/11 veterans. The 
primary causes of TBI for veterans from Iraq and Afghanistan 
are blasts, motor vehicle accidents and gunshot wounds.
    The Department of Defense has diagnosed 350,000 
servicemembers as having received at least one brain injury 
since 2000, yet the VA has granted only 75,000 disability 
claims in relation to TBI received in service. The disparity 
here is what is so very troubling. You have a great gap between 
the servicemembers identified by the Department of Defense and 
the positive claims granted by the VA.
    On the other hand, the VA is leading the way in the 
treatment and research for traumatic brain injuries and has 
said it will spend $2.2 billion over the next ten years on 
treatment and research. It is important to remember that any 
one servicemember can have multiple brain injuries, so this 
kind of research is critical.
    What troubles me about the subject of today's hearing is 
that accurate benefits adjudication is critical to ensuring our 
veterans have access to the VA health care they need. Without 
timely and accurate decisions, it is possible that veterans who 
need care are not receiving it through the VA. This is a common 
problem that we have had in this Committee: once again, we find 
ourselves examining issues related to access.
    Now, we often hear from the veterans and even the recent 
Commission on Care that once veterans are able to get into the 
VA health care system, they receive care that is second to 
none, and that is especially true for TBI, but it is getting 
into the system that seems to be the problem.
    We also know that TBI is linked to other things. It is 
linked to PTSD, chronic pain, substance abuse that can lead to 
homelessness, that can lead to suicide; it is just a downward 
spiral. So we need to get at this problem at the beginning, not 
at the end when recovery for the veteran becomes more and more 
complex.
    VA programs and services relevant to TBI include screening 
and evaluation, acute and post-acute care provided through the 
VA, polytrauma, access to the TBI system of care, and long-term 
services and support.
    So while the VA has the best treatment available in this 
specialized care that they are so recognized for around the 
world, we aren't getting out veterans into the system, we are 
not adequately processing their disability claims, and 
certainly this can have long-term ramifications and that is the 
problem that we are here to address today.
    Now, I realize that the VA has made a response to these 
mismanagement problems and I appreciate that, but I am 
concerned that it is inadequate. When the VA sent a letter to 
veterans asking them to request a TBI examination, I wonder if 
they believed they received enough outcome from that sending 
just that letter, if they think that is enough to get to these 
veterans who may need their help. I don't think it is, and I am 
concerned for three reasons.
    First, it took the VA two years to take action to fix the 
problem or to address the issue once it was discovered. Now, 
that is two years on top of the four years it took them to even 
recognize that there was a problem. So you have got veterans 
who have been denied access to care and benefits for a six-year 
period.
    Second, I can't understand why the VA's quality control and 
oversight mechanisms didn't identify the issue for the four 
years, original four years. I hope that by the end of this 
hearing we will have a better understanding of what the problem 
was and what procedures have been put in place so that that 
doesn't happen again.
    And thirdly, and most importantly, it was the VA that was 
in the wrong, not the veteran. The VA needs to put the onus of 
correcting this problem on itself rather than on the veteran. 
Instead of sending a letter and asking the veteran to respond 
and ask for a new medical exam, and then maybe hoping they 
don't need it or say no, I think the VA needs to be more active 
in reaching out to schedule these TBI exams.
    Now, such a course of action would ensure a higher 
percentage, perhaps the highest percentage of veterans who need 
this will take advantage of the opportunity and get that exam. 
It is the VA that dropped the ball, not the veteran, and the 
effect of that can be devastating.
    So I believe that the VA thinks they have got the correct 
policy in place, so it is incumbent upon them to reach out and 
let veterans know what it is. Doing that will help to rebuild 
trust between the VA and our veterans, which has been a serious 
problem that we have talked about over the course of these 
hearings with this Committee.
    So thank you, Mr. Chairman, I look forward to working with 
you on this.
    Mr. Abraham. Thank you, Ms. Titus.
    I ask that all Members waive their opening remarks, as per 
this Committee's customs.
    I would now like to welcome Mr. David McLenachen, who is 
the Deputy Under Secretary for Disability Assistance. He is 
accompanied this morning by Ms. Mary Glenn, Acting Deputy 
Director of the Operations, Compensation Services of VBA; and 
Ms. Patricia Murray, Chief Officer of the Office of Disability 
and Medical Assessment of VHA.
    Mr. McLenachen, you are now recognized for five minutes to 
present the testimony of the VA.

                 STATEMENT OF DAVID MCLENACHEN

    Mr. McLenachen. Good morning, Mr. Chairman, Ranking Member 
Titus and Members of the Committee.
    Thank you for the opportunity to review with you the 
Department of Veterans Affairs process for ensuring that all 
veterans are properly evaluated for traumatic brain injury. Mr. 
Chairman, as you said, that's known as TBI.
    Since 2007, medicine around traumatic brain injury has been 
a rapidly evolving science. Recognizing that TBI is a signature 
injury of the conflicts in Iraq and Afghanistan, VA instituted 
a policy requiring one of four specialists, a psychiatrist, a 
physiatrist, a neurosurgeon, or a neurologist to complete 
initial TBI exams for disability compensation claims when VA 
does not already have a diagnosis.
    VA selected these specialists because they have the most 
experience with the symptoms and effects of TBI, and to take 
extra steps to ensure that veterans seeking disability 
compensation for this complex disability receive the benefits 
to which they are entitled.
    VA also updated its rating criteria in 2008 to keep pace 
with evolving understanding of TBI. Unfortunately, as more 
research became available, VA issued a series of guidance 
documents that inadvertently created confusion regarding this 
policy.
    In October, 2014, the Minneapolis VA Medical Center 
reviewed initial TBI exams for disability compensation claims 
completed since 2010 and identified approximately 300 veterans 
whose exams were not conducted by one of the four designated 
specialists. Thereafter, the Veterans Benefits Administration 
and the Veterans Health Administration initiated a nationwide 
review of initial TBI exams for disability compensation claims 
performed between 2007 and 2015.
    The results of this review revealed that between 2007 and 
2015 approximately 24,000 veterans received initial TBI exams 
for disability compensation claims that were not conducted by 
one of the four designated specialists.
    Further, the review found that VHA conducted approximately 
5300 of these exams while VBA contract examiners conducted 
approximately 19,000.
    VHA facilities have certified that initial TBI disability 
compensation examinations are now being conducted by one of the 
designated specialists. In addition, VBA modified its exam 
contracts in 2013 and 2014 to clearly state that the initial 
TBI exams must be performed by one of the four designated 
specialists when no diagnosis is of record.
    The recently completed national review confirmed that VBA 
contract examiners have been compliant with this requirement 
under the terms of the modified contracts.
    VA regrets that these examinations were not completed by a 
designated specialist the first time. To minimize burden and 
ensure no financial harm to affected veterans, the Secretary of 
Veterans Affairs granted equitable relief to all of the more 
than 24,000 veterans on May 3rd, 2016. The relief authorizes VA 
to offer new TBI exams conducted by one of the four designated 
specialists to all identified veterans.
    This equitable relief further enables VA to take action on 
any new examinations without requiring veterans to submit new 
claims and allows VA to award an effective date as early as the 
date of the veteran's original TBI claim and provide any 
retroactive benefits.
    VBA has contacted all affected veterans via letter to 
notify them of the opportunity to receive new exams and have 
their claims reprocessed. These veterans can initiate 
reprocessing of their claims by either calling a dedicated 
phone number for this purpose or otherwise contacting VA. 
Affected veterans have one year from the date that they are 
notified of the grant of equitable relief in which to request 
new examinations.
    Affected veterans are already receiving service-connected 
compensation for benefits at a ten-percent disability 
evaluation or higher and that number is about 13,000 that are 
all receiving compensation at that level.
    VA has also clarified its guidance documents that may have 
created confusion regarding the policy. We have confirmed that 
TBI policy guidance is now clear, and VA is confident that 
examiners now comply with its TBI compensation examination 
policy.
    Mr. Chairman, we understand the importance of an accurate 
exam to support veterans' disability compensation claims, and 
improving the medical exam experience is one of VA's 12 MyVA 
breakthrough initiatives that we have been working on.
    Mr. Chairman, this concludes my statement. We would be 
happy to answer any questions that you or Members of the 
Committee have for us today.
    Thank you.

    [The prepared statement of David McLenachen appears in the 
Appendix]

    Mr. Abraham. Thank you, Mr. McLenachen. And my first 
question will be addressed to you and you can certainly bring 
the other two people here with you.
    What I worry about is the accountability issue, because we 
have this issue it seems over and over. Walk me through the, I 
will use the word, inadequate examinations. Who in the VBA was 
responsible for informing the VHA in 2008 that only the big 
four specialists were authorized to conduct initial TBI exams?
    Mr. McLenachen. Certainly. Let me clarify one point at the 
very beginning in answering your question.
    VHA and VBA work very closely. This is not a situation 
where we are independently issuing guidance regarding these 
matters. Historically, both agencies have worked very close 
together in developing this policy, issuing it and implementing 
it. So I just want to make that point clear from the beginning.
    In VBA, the compensation program, to include the policies 
regarding examinations and evaluating compensation claims, is 
issued by our Compensation Service, which is under--the 
Director of the Compensation Service reports to me as the 
Deputy Under Secretary for Disability Assistance, and I report 
to the principal Deputy Under Secretary and the Under 
Secretary.
    Mr. Abraham. So was the chain of command followed? Was 
there a break in the chain?
    Mr. McLenachen. No, sir, not that I am aware of.
    And let me say that I have spent a lot of time on this 
issue, both preparing for conversations with the Committee's 
staff, looking into this matter myself, going back over time, 
and I must say that it is a matter of hindsight; I am going 
back and looking at what others have done before me.
    And regarding your accountability question, all I can say 
at this point is, that those that you have to hold accountable 
are me and the other current leadership that need to address 
this problem.
    Mr. Abraham. Fair enough. So why weren't the disability 
examination contracts amended in 2008 to ensure that the 
veterans did receive adequate exam from the contractors?
    Mr. McLenachen. That is a real good question, because this 
is something that we are going to have to be very vigilant 
about going forward. And if you are aware of this, we have had 
authority since 1996 to use mandatory funding for contract 
exams and that authority has been expanded over the past few 
years to where in fiscal year 2017 we will have full authority 
to use mandatory funds for contract exams as much as possible, 
it is unlimited authority.
    Mr. Abraham. So I guess my more pointed question is, who 
actually made that call? Who made that decision, you know, that 
the disability examinations weren't by the book?
    Mr. McLenachen. The contracts are modified through a 
entirely different procedure than the issuance of policy. The 
administration of the contract is done by Compensation Service 
as well and the point--
    Mr. Abraham. And I understand. You know, I guess I am 
looking for that person, because again, I think accountability 
here--and you stepped up on the last question and said, you 
know, you are the guy to look to, but I guess what is 
disconcerting to me is that in their attempt to explain away 
this problem, I hope it is clear, but it seems to me it is 
unclear that the VA officials understand that, you know, when 
we ask for accountability, personally, and I don't think 
anybody on this dias is trying to score any political points, 
we just want what is best for the veteran. We have got 24,000 
that were affected by this mistake, but we need some real 
answers and we certainly need some real action.
    So I want to just highlight that, and I know you guys 
understand that, but what we look for up here is accountability 
for that veteran, that is what we are here to do.
    Why did the compensation and pension examination program 
issue a directive indicating that a generalist with special TBI 
training could conduct initial TBI exams when it was in direct 
contravention to the VBA policy?
    Mr. McLenachen. Again, I have gone back and looked at all 
the information I have to determine why that was specifically 
issued.
    Mr. Abraham. Do you know who issued that directive?
    Mr. McLenachen. That again would have been generated out of 
the Compensation Service.
    Mr. Abraham. Okay.
    Mr. McLenachen. But as far as looking at a record of why a 
specific decision was made in that regard, I don't know whether 
it was because of a lack of capacity, whether that was an issue 
at that particular time to the extent that there weren't enough 
of those specialists available, I do not know the answer to 
that question. Again, looking back, I looked for red flags that 
might indicate where there was a problem and should somebody 
have identified it, and I was not able to find anything like 
that.
    Mr. Abraham. And I have your word you are looking at this 
very closely?
    Mr. McLenachen. Yes, I assure you that I have.
    Mr. Abraham. Okay. Ms. Titus?
    Ms. Titus. Thank you, Mr. McLenachen.
    I would like to go back to those gaps that I mentioned 
early on in my testimony. Since 2000, 350,000 servicemembers 
were identified by the Department of Defense as having at least 
one brain injury. Then after you recognized this as a problem 
in the VA in 2008, 170,000 applied. So there is that one gap. 
And then of the 170,000 who applied, only 75,000 have had their 
problem recognized and been compensated for it.
    Can you give any kind of explanation for why you think that 
is the case?
    Mr. McLenachen. Yes, I have actually been thinking about 
that since you brought up that point in your introductory 
comments. And I think the one explanation I can provide is, 
when I looked back at this cohort of veterans and tried to find 
out, you know, what their current situation is, I discovered 
that 23,658 of them are already service-connected and receiving 
compensation, most of them are receiving compensation. There 
are a couple thousand that are rated at zero percent, but 
otherwise the rest of them are currently receiving 
compensation.
    So it may be the explanation, and I can try to find more 
specific information, that they are service-connected for 
something other than TBI as a result of the evaluation that was 
done. So that may be one explanation for that disparity in the 
numbers that you were seeing.
    Ms. Titus. I know you have to apply for this if you are the 
veteran, and that may help to explain some of the gap between 
those diagnosed by the Department of Defense and those who 
apply.
    And then that brings me to the second problem, is, do you 
think sending one letter to veterans to let them know about 
this is enough? Don't we need more of a public information 
campaign or working with the VSOs or some other kind of follow-
up? Is that adequate?
    Mr. McLenachen. You are absolutely correct. We have met 
with the VSOs and informed them of this. Yes, we sent an 
individual notice to each of the veterans identified, and we 
put out a press release. Whether that is adequate or not, you 
may be correct that it is not.
    But I wanted to address the issue you raised about we 
should just go ahead and order the exams for all these 
veterans. In reality, we thought about that issue and 
determined that is probably not the best policy in this 
particular case, and that is because many of these veterans, in 
fact almost 14,000 are already service-connected for traumatic 
brain injury and many of them at, you know, the higher rates of 
evaluation.
    So it could be misleading to go out to a veteran and 
suggest you need to come back to us and get another exam and in 
fact, we are going to schedule one for you without you making a 
choice. It could have a significant impact on their benefits. 
So as a matter of policy, we decided that the best option was 
to make contact with these veterans, fully inform them of what 
their options are, and let them make that choice. So we 
carefully considered the issue that you raised.
    Ms. Titus. Okay. Well, I am glad to hear that. Thank you.
    I would also just ask you, now that you have evaluated the 
examination process for TBI, I wonder do you have any plans to 
continue to update that? Because new research comes about all 
the time. And also, what about other mental health conditions 
like PTSD? Because that is something that is similar to this, 
it might need updating as we go along.
    Mr. McLenachen. I assure you that we continuously work 
closely with VHA, Ms. Murray's staff and the Compensation 
Service to develop our policies in this area.
    The main point that really jumped out at me is, for any 
situation where we have a specialist exam that is required, we 
need to make sure we have the procedures in place so that our 
adjudicators are identifying whether the exam report that they 
receive was done by a specialist. So that is a critical issue.
    In fact, in 2015, one of the things that we did in this 
particular area was to change our adjudication procedures 
manual to require our adjudicators to check the DBQ information 
that they are getting back, the disability benefits 
questionnaire information that they are getting back, to ensure 
that a specialist, one of the big four did it. So that is a 
100-percent quality check that we put in place in our 
procedures manual.
    And one of the things I would like to see is, do we need to 
do that with other specialist exams that are required.
    Ms. Titus. Yes, that is what I was getting at too. Well, 
thank you very much.
    I yield back.
    Mr. Abraham. Mr. Walz?
    Mr. Walz. Mr. Chairman, I would defer to the permanent 
Member of the Subcommittee Ms. Brownley first, if she would 
like to go now.
    Ms. Brownley. Please, go ahead.
    Mr. Walz. Chairman, thank you for holding this. And to the 
Ranking Member, certainly our priority here is to make sure all 
our veterans get the care that they have earned, and make sure 
they get the compensation that is necessary. So I think there 
are two tracks here. I think the contracting issue is certainly 
one that needs to be addressed, but I think there is also 
benefit in looking at how this all unfolded, and kind of the 
history of it.
    All too often here we get criticized for being reactive and 
not proactive, and I think it is important to note that it was 
on the 3rd of May, 2007 when H.R. 2179 was introduced on the 
floor, and that was the piece of TBI legislation that 
established the centers of excellence, that talked about how we 
did these exams and how we went forward. So over nine years ago 
people were thinking about this and starting to move that 
forward.
    Fast forward now to the situation here. There are some --in 
the midst of an error and in the midst of something that 
shouldn't have happened, there are some positive take-aways on 
this. And I think it started, this was last summer we were 
starting to hear rumblings in Minnesota that they were not 
getting the right exams.
    There was a tenacious, young journalist named A.J. Lagoe 
who did some really fantastic journalism, some really fair 
reporting and work at Minneapolis VA, turned up that this did 
happen. We thought the numbers were about 300. Immediately the 
director of that, the medical director of that facility Dr. 
Kelly went ahead and said, yes, we made a mistake, bring them 
all back in.
    We were asked at that time, do you think if it happened 
here, it could have happened nationwide? And I said not only is 
it possible, it is probable. We asked for an IG report to go 
nationwide; they agreed to do that. That came out here in early 
May, and at that point in time, the Secretary took, I think you 
said, Mr. Under Secretary, that that was the first time 
equitable relief to across the board.
    Mr. McLenachen. What is really unique about this is, the 
Secretary has equitable relief authority, but usually it is 
done on a case-by-case basis. And so what is unique in this 
circumstance here, is he granted equitable relief for this 
entire cohort of veterans, and that is the first time I am 
aware of that happening.
    Mr. Walz. Yeah, us too. And I think those are positive 
things. And I think Ms. Titus brought up a great point was, is 
there were four years beforehand where it was not found and 
that people had to wait. But this seemed to me and then I 
watched your interview on camera, where I have to say it should 
be shown for all people up there that there was a respectful 
humbleness that a mistake was made, we are trying to do 
everything possible to make it, we will do what we can do 
moving forward on that, and it just seemed somewhat refreshing 
on that.
    So I think all of that up to this point, that is something 
we need to look at and see if there is something new happening 
there, but I think the questions being brought up about what is 
happening going forward are things that do need to be 
addressed.
    So if I could ask and maybe from your opinion, sir, and I 
think it got asked, Ms. Titus was getting at it a little bit, 
has this episode had any broader effect on changing how we go 
after these things? Because it felt like on this one, once a 
problem was identified with the validation of some good 
journalism, with the congressional oversight stepping in, with 
the IG doing it, the responses in this seemed to lean towards 
the benefit of the doubt of the veteran. Again, I think you 
answered Ms. Titus' question. My question was too, is why you 
came to the conclusion of just sending the letter. But do you 
feel like there are some systemic lessons that can be learned 
by this? Because this is a different response, the way I see 
it, my colleagues will make up their own mind, than what we saw 
after Phoenix and some other ones, this is different.
    I am not in any way thinking we are in any way done. We 
have got 24,000 people that need to be made whole the best we 
can, that is an ongoing issue, and we can bring some of those 
up. But maybe, Mr. Under Secretary, how do you see it? What has 
transpired since this?
    Mr. McLenachen. Very good points. And I would say that I 
can confirm that we have approached this somewhat differently 
than in the past, and the equitable relief is just a good 
example. In the past, where we would have maybe taken this on 
on a case-by-case basis, it is not the right thing to do in 
this situation when you know that there are a large number of 
veterans that are affected.
    In this case, as I said, 16,000 of them are already 
service-connected for TBI, and many of them are already 
receiving disability compensation. So is it the right thing to 
do to kind of pass it by, or is it the right thing to do to do 
the fair thing, give everybody the opportunity to come in for 
another exam and an evaluation of their claim? This was the 
right thing to do. Our VA leadership pressed us to do this type 
of thing.
    I would not go so far as to say that in the past, you know, 
we never cared about making things right for veterans, that is 
absolutely not true, but this approach, I think you are 
correct, is different than we have used before.
    Mr. Walz. Before I yield back, my final point on this 
though, is that it always seemed there was a bit of a bunker 
mentality. Who made the decision to let you go on camera and 
make an admission that an error was made and you are trying to 
fix it? That was different to me.
    Mr. McLenachen. We had a lot of discussions about that with 
our public affairs people and the suggestion was made that it 
would be a good thing to do to help get the word out, and state 
the Department's position, and I was happy to do it.
    Mr. Walz. Well, if I can second that. Transparency is 
something very refreshing and it did not go unnoticed here.
    So thank you, Mr. Chairman. I yield back.
    Mr. Abraham. Thank you, Mr. Walz.
    Ms. Brownley?
    Ms. Brownley. Thank you, Mr. Chairman. And I think I just 
probably have a few follow-up questions to the questions that 
have already been asked. But, you know, I still just want to go 
back to this issue of the appropriate outreach to the veterans 
who might not have received the services that they deserved.
    And of course the 11,000 veterans who are not already 
receiving a service-connected compensation benefit, they seem 
to me to be in a special category, because they have never gone 
through this process before. And I agree with the Ranking 
Member that just one letter just doesn't seem to be enough, 
that we need to be much more aggressive and have a sequence of 
times in which we are going to contact veterans.
    So first, you know, is there anything special that you will 
do vis-a-vis the 11,000 veterans who haven't received service-
connected compensation? And, secondly, if you had a list and a 
breakdown, for example I would love to know the veterans in my 
congressional district, so that I can reach out to them 
personally to make sure that we are proactive. We spend a lot 
of time in my district office helping veterans with their 
benefits in a reactive way, it would be nice to be proactive in 
our office.
    So if you could address those two things.
    Mr. McLenachen. We definitely have the information that you 
are looking for and will be happy to provide it to you. We have 
it broken down by state and by regional office, so state of 
residence by regional office, we can provide that data. We have 
provided most of it to the Committee staff, I believe, but I 
would be happy to make sure we get that to you.
    Ms. Brownley. So I think that I want that information. I 
think that information should be disseminated out across the 
country, so that, you know, the infrastructure of the VA across 
the country, regional centers and the like, can work to get 
this information out and follow-up with what has been done in 
the central office.
    So I think that that is--I think would be a good step in 
terms of following up on what the central office has already 
done.
    Mr. McLenachen. And if I could just address your other 
point, which was--
    Ms. Brownley. Yes.
    Mr. McLenachen [continued]. --and actually Ranking Member 
Titus' point, is the letter and the outreach we have done so 
far enough? You may be perfectly correct that it is not enough.
    We sent the letters out July 1st, we did a batch process. 
We will monitor the information that we are getting back. It 
may be that we need to look at doing other outreach, and we 
will certainly take a harder look at that.
    Ms. Brownley. Okay, very good.
    And that leads me to another question just in terms of 
monitoring this program as you have reached out, the number of 
veterans coming back for reexamination, veterans coming for 
their first examination. And I always worry about, in many of 
these hearings we talk about our staffing issues and our 
pipeline issues, and the fact that this program is built upon, 
you know, four specialties to make an appropriate diagnosis; do 
we have enough? Have you sort of estimated the amount of demand 
that is going to take place, and do we have the appropriate 
personnel to see these veterans in a timely way?
    Mr. McLenachen. We do believe that we have now, as I said, 
the contracts have been modified. And so with respect to VBA's 
contract examinations, the answer is yes.
    And maybe I will defer to Ms. Murray to address VHA's 
capabilities in the area.
    Ms. Murray. Thank you, Dave.
    For VHA, we do have the capacity to see these veterans when 
the exam request is ordered. My office will be providing 
follow-up education and training to the VHA clinics on this. We 
have also sent out a certification that was signed by the 
network directors assuring us that all of their facilities are 
compliant. And then I will be setting up a monitoring tool 
within VHA to look at these periodically to ensure compliance.
    Ms. Brownley. Thank you, thank you very much.
    And I guess in conclusion, I would just like to agree with 
my colleague Mr. Walz that an admission of a mistake goes a 
long way. And I think for all of us on the dias, you know, we 
know that we can't be perfect all of the time, we want to be in 
a mode of continuous improvement, but when we recognize we make 
a mistake, just admit it, and do our very best to fix it. So I 
appreciate those comments and appreciate your admission to a 
mistake in the past.
    So with that, I will yield back.
    Mr. Abraham. Thank you, Ms. Brownley.
    And I will start kind of a second line of questions here. 
And, again, I will echo Mr. Walz, as everybody up here, you 
know, we are appreciative of the VA cowboying up and, you know, 
coming up to the table, but we still have to address the issues 
that brought us to this point. We have still got veterans that 
didn't receive compensation that probably should have, they are 
having to use time and treasure to be reexamined.
    So we still need to look deeply. I want you to continue 
your investigation; I know you will. But before we hold hands 
on the beach and sing ``Kumbaya,'' we need some accountability 
here.
    One last question or maybe two. When the VBA contracts were 
initially awarded in 2010, they required the big four to do the 
TBI exams. Now, in early 2011, that is when I think the 
contracts were modified to allow any doctor with TBI training 
to perform these exams.
    So the question is, why was this requirement relaxed just a 
few months after awarding the contracts? And I understand that 
you weren't Deputy Secretary in 2010; is that correct?
    Mr. McLenachen. That is correct, I was not.
    Mr. Abraham. Who was?
    Mr. McLenachen. I do not recall who was at that time, but I 
could certainly get back to you with that information.
    Mr. Abraham. I appreciate that. Okay.
    So why were those contracts amended just a brief time after 
they were specified that it had to be the big four that were to 
do the exams?
    Mr. McLenachen. Unfortunately, I don't have the answer to 
that question. Again, if I was to guess, I would be 
speculating, you know, when I mentioned the capacity issues.
    I think, Mr. Chairman, what we can really look at here is 
the difference between the procedure for issuing new policy and 
acquisitions in the Federal Government. I mean, we have to go 
through the Federal acquisitions process to set up these 
contracts and to modify them, and there is not a neat 
connection between the policy process and the contracting 
process. And so I think that is where we really need the 
improvement here, is to make those two things link up.
    Mr. Abraham. All right. So when you went back and modified 
the contracts in 2014, is the way I understand it, I guess why 
didn't you take action then to go back and give some relief to 
the veterans?
    Mr. McLenachen. Well, you are correct, 2013 for one 
contractor, 2014 for the other. What I am able to see when I go 
back and look at this is, there were no red flags at that point 
to indicate that these exams were being done incorrectly. The 
prior contracts were not clear that this was a mandatory 
requirement, but we had no red flags, at that point that I can 
see, that were telling us that these exams weren't being done 
correctly.
    The contracts did prescribe, as you mentioned, that they 
were done by one of the big four or by a generalist that has 
had some TBI training. Should somebody at that time have gone 
back and done the data analysis that was available at that 
time? I don't dispute that, maybe that should have been done at 
that time. But I just don't see any red flags telling us at 
that time that these exams were not being done correctly.
    So the contracts were modified to be consistent with the 
policy guidance that was out.
    Mr. Abraham. Okay, thank you.
    Ms. Titus, do you have further questions?
    Ms. Titus. Just a quick one. Thank you, Mr. Chairman.
    You say there weren't any red flags, but there were 
problems. So I haven't really heard a good answer for why the 
quality control procedures failed, why it took so long to fix 
it, and what we have kind of learned from this experience going 
forward.
    Mr. McLenachen. Okay. One of the things that I learned was, 
in the past, our adjudication procedures were that our 
adjudicators were not to question whether the examiner had the 
credentials that were required because that was taken care of 
in the exam request and provision process. We have changed 
that, we changed that in 2015. As I said, a hundred-percent 
quality check. If it doesn't indicate on there that the exam 
was done by a specialist, one of these four specialists, the 
adjudicator is supposed to determine that it was an inadequate 
exam, and it should be returned and corrected by the contractor 
or any other examiner. So we did learn those things.
    In addition to that, as we move into expanded mandatory 
contracting of exams in the Compensation Service, we are 
setting up a new staff that is going to be led by a senior 
executive that is going to have oversight over this entire 
process to include expanded quality review, contract 
administration, all the things that you would think you would 
expect when you are administering these type of contracts that 
are providing these exams, that staff is in the process of 
being set up now. And I may ask Mary whether she has any 
additional information on where we are at on that.
    Ms. Glenn. Thank you for the question.
    Yes, ma'am, we are in the process of setting up a contract 
examination program office, which we will collaborate with VHA 
on all the policy/procedural type of things that we are doing. 
The staff is in the process of being set up, some of the people 
are already on staff, and have already taken some site visits 
to some VHA facilities and met with the C and P clinic 
directors there.
    So we are hopeful that we will be fully staffed and ready 
to go within the next couple of months. And we will have 
oversight, as Mr. McLenachen said, of the policy and process of 
contract exam administration.
    Mr. Abraham. Mr. Walz?
    Mr. Walz. Well, thank you. And we are hitting on some of 
the bigger topics, and I do think that, again, I think Dr. 
Abraham and all these Members continuing to push on continuous 
improvement, the accountability, there are things here. I am 
reading a news story you probably saw, maybe, I don't know if 
you saw, Mr. Under Secretary, last night a veteran who waited 
seven years to get this cleared, and that is a lot of time and 
what we know about it. So I am still frustrated on some of 
this.
    And I am still trying to get at this quality control piece, 
and I know you probably explained it, because I think about 
this. We had one of these incidents happen, and I know it is 
more difficult with mental health issues than it is with 
physicals, we had the contaminated colonoscopy scopes. And as 
it turned out what happened with those, when we were getting 
veterans that were getting hepatitis and other things from 
that, that they went back and looked at it, and it finally 
showed we had several different suppliers of those and one of 
them had a two-way valve on it, and there was no checklist for 
the cleaning of these things.
    So what the VA did after that was instituted a checklist on 
that this has to happen when you clean a colonoscopy scope and 
this is how it goes back together.
    Is that happening across the board? Because I am still 
hearing some of these folks that are still fighting to get 
this. This gentleman in Minnesota went to a private doctor, 
they said he had TBI. He came back three times and the VA kept 
telling him no. After this ruling, he came back again and this 
time they said yes.
    So my question is, what were they missing in the diagnostic 
piece of this, not the administrative piece? What has changed 
in how we do that? And I know you kind of got at it, but there 
is a quality control gap here that allowed this to go 
undiagnosed.
    Mr. McLenachen. I am going to ask Ms. Murray if she can 
address the last part of your question about the criteria, but 
as far as the quality control piece, without a doubt 
improvement is needed in that area, and Ms. Glenn just 
described, you know, how we are going to beef that up.
    When I look back at the quality review process that was 
used in the past, much of that is addressed in the contract 
regarding what the contractor needs to do, but also we had a 
quality review process that perhaps one could say was a little 
light. If you were taking a look at it you could say, well, 
yes, it is statistically significant that you were doing that 
number, but is this what should have been required at that 
time?
    There is going to be additional staff addressing that in 
the future, as Ms. Glenn described.
    So a quality check is very important, particularly if you 
have a requirement that a specialist has to do something. And 
to me, the best way to get at that is, we shouldn't be using an 
exam unless it was done by one of those specialist. So if our 
adjudicator gets an exam, information from an exam and does not 
see that it was done by a specialist, it should be an 
inadequate exam, and it should be returned. The contractor 
should fix it or VHA should clarify whether it was done by a 
qualified examiner and provide us a new one.
    Mr. Walz. What is the redress procedure for these folks to 
go back? Because this was a gentleman who went to the private 
sector and had medical bills there and things like that. I know 
some of these are going to be case-by-case, and I think it is 
what Ms. Brownley was asking, so all of us can get at this, 
because I have still got some of these 300 who have not 
received their payments yet.
    And so what is their redress process?
    Mr. McLenachen. Right. So for the 317 or so in Minnesota, 
as far as I know, we have re-adjudicated every one of them. The 
one holdup was the equitable relief, to provide them their 
retroactive benefits.
    And just for your information, approximately 55 or 56 or 
so, we were able to address right away without them coming back 
in, because it was still within the appeal period. For the 
others after that, out of the 317, I believe about 120, and I 
am using approximate numbers, it was about 120 came in. Of that 
number, I believe 56, 56 or 58 received service-connection that 
they didn't receive before.
    So that is a pretty high number, whether that was because 
we were taking a fresh look at it, and it was not because of a 
diagnostic criteria change or anything like that, and we had to 
attribute that to the fact that it was done by the specialist 
rather than by a generalist. And that informed us on the need 
to do the nationwide review that you discussed.
    Mr. Walz. Right.
    Mr. McLenachen. So, I am very confident that we are going 
to address the quality issue that you have raised. We need to 
do better at that; in my view, that is going to be done at the 
adjudicator level.
    And we have already seen, just for your information, in the 
data that we have, in 2015 there were only six contract exams 
that were not done with a specialist. So from 2014 when we 
changed the contract to 2015, it drops off to six.
    In addition to that, in 2015 we instituted the new 
procedures on checking to make sure that a specialist at the 
adjudication level did one of the exams. I am hoping that that 
will address--
    Mr. Walz. So there is a checklist now? Just like the 
cleaning of that endoscope or whatever, now there is--
    Mr. McLenachen. There is. There is a procedure in our 
adjudication manual that says check it. If it is not done by a 
specialist, here is what you do with it. And we are actually 
looking whether we can beef that instruction up a little bit.
    Mr. Walz. Thank you.
    I yield back. Thank you, Chairman.
    Mr. Abraham. Ms. Brownley.
    Ms. Brownley. In terms of moving forward, does the Choice 
Act apply in terms of--if a veteran has to wait longer than 30 
days to be assessed by one of these specialty docs, can they go 
to their own community to get that?
    Mr. McLenachen. I will defer to Ms. Murray and see whether 
she can answer that question.
    Ms. Murray. Sure. Thank you for the question.
    The C and P exams at this time does not fall under the 
Choice Act and so--
    Ms. Brownley. Okay. That's what I thought, that's what I 
thought.
    Ms. Murray. Yes.
    Ms. Brownley. And I just wanted to follow-up on the Los 
Angeles regional office. You might remember that in September 
of 2015, the VA Inspector General released a report about the 
Veterans Benefits Administration office in Los Angeles, and the 
report noted that staff was incorrectly processing TBI claims. 
And I just want to make sure, get your assurance, I feel pretty 
confident that there has been--that they are doing a good job 
now in Los Angeles, but I just wanted to hear from you that you 
also concur that things are moving well there?
    Mr. McLenachen. Yes. I am familiar with that report. 
Fortunately, it is unrelated to the topic we are discussing 
here. The IG in a routine benefits examination that they did at 
the office discovered that there was training and second-
signature compliance issues, those were addressed. We did 
additional training, and we are ensuring compliance on the 
second signature. That is a quality check, as we have been 
discussing, that is being followed. The IG is confident that 
that is the case, and they closed the recommendation.
    So I can assure you that we have addressed that.
    Ms. Brownley. Thank you very much.
    And I yield back.
    Mr. Abraham. Oh, thank you so much and, you know, I 
appreciate you being here. And the changes that you are 
describing going forward, they sound good, and I will trust 
that you will follow-up.
    I guess the only lingering or one of the lingering 
questions, I still don't have a name and a title of who is 
responsible for issuing that directive on the generalists 
getting TBI training that could give the exam, and I would like 
that.
    And I am going to ask a rhetorical question in closing, 
because on the same thing, the VBA allowed any doctor with 
specialized training through the Disability Evaluation 
Management Office to conduct these exams, but the way I 
understand it that training just entailed an online testing and 
online training. The certification didn't even exist yet in 
2011 when VBA contracts first used it as a qualification. So 
the question, and I will use it rhetorically, because I think 
everybody up here knows the answer, how is that equivalent to a 
medical specialty? Well, an online training exam is not 
equivalent to a medical specialist. A medical specialty takes 
years of training, years of residencies, years of fellowships 
to get to that point.
    But I look forward to working through the issues and 
follow-up with certainly my colleagues here and the Department 
of VA. And, again, thank you for your forthright statements 
and, you know, owning up and trying to do the right thing.
    As initially noted, the complete written statement of 
today's witnesses will be entered into the hearing record.
    I ask unanimous consent that all Members have five 
legislative days to revise and extend their remarks, and 
include extraneous material.
    Hearing no objection, so ordered.
    I thank the Members and the witnesses. The hearing is now 
adjourned.

    [Whereupon, at 10:51 a.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              

                 Prepared Statement of Dave McLenachen
Opening Remarks

    Good morning, Chairman Abraham, Ranking Member Titus, and Members 
of the Committee. Thank you for the opportunity to review with you the 
Department of Veterans Affairs' (VA) process for ensuring that all 
Veterans are properly evaluated for Traumatic Brain Injury (TBI). 
Accompanying me today is Patricia Murray, Chief Officer, Office of 
Disability and Medical Assessment, and Mary Glenn, Acting Deputy 
Director, Operations, Compensation Service.

Background

    Since 2007, medicine around traumatic brain injuries (TBI) has been 
a rapidly evolving science. Recognizing that TBI is a signature injury 
of the conflicts in Iraq and Afghanistan, VA instituted a policy 
requiring one of four specialists - a psychiatrist, physiatrist, 
neurosurgeon, or neurologist - to complete initial TBI exams for 
disability compensation claims when VA does not already have a 
diagnosis. VA selected these specialists because they have the most 
experience with the symptoms and effects of TBI, and to take extra 
steps to ensure that Veterans seeking disability compensation for this 
complex disability receive the benefits to which they are entitled. VA 
also updated its rating criteria in 2008 to keep pace with the evolving 
understanding of TBI. Unfortunately, as more research became available, 
VA issued a series of guidance documents that inadvertently created 
confusion regarding the policy.
    In October 2014, the Minneapolis VA Medical Center reviewed initial 
TBI exams for disability compensation claims completed since 2010 and 
identified approximately 300 Veterans whose exams were not conducted by 
one of the four designated specialists. Thereafter, the Veterans 
Benefits Administration (VBA) and the Veterans Health Administration 
(VHA) initiated a nationwide review of initial TBI exams for disability 
compensation claims performed between 2007 and 2015. The results of 
this review revealed that between 2007 and 2015 approximately 24,000 
Veterans received initial TBI exams for disability compensation claims 
that were not conducted by one of the four designated specialists. 
Further, the review found that VHA conducted approximately 5,300 of 
these exams, while VBA contract examiners conducted approximately 
19,000. VHA facilities have certified that initial TBI disability 
compensation examinations are now being conducted by one of the 
designated specialists. In addition, VBA modified its exam contracts in 
2013 and 2014 to clearly state that initial TBI exams must be performed 
by one of the four designated specialists when no diagnosis is of 
record. The recently completed national review confirmed that VBA 
contract examiners have been complying with this requirement under the 
terms of the modified contracts.

Corrective Actions Taken by VA

    VA regrets that these examinations were not completed by a 
designated specialist the first time. To minimize burden and ensure no 
financial harm to affected Veterans, the Secretary of Veterans Affairs 
granted equitable relief to all of the more than 24,000 identified 
Veterans on May 3, 2016. The relief authorizes VA to offer new TBI 
exams, conducted by one of the four designated specialists, to all 
identified Veterans. Equitable relief is a unique remedy that allows 
the Secretary to correct an injustice to a claimant, where VA is not 
otherwise authorized to do so within the scope of the law.
    This equitable relief further enables VA to take action on any new 
examinations without requiring Veterans to submit new claims, and 
allows VA to award an effective date as early as the date of the 
Veteran's original TBI claim and provide any retroactive benefits due. 
VBA has contacted all affected Veterans via letter to notify them of 
the opportunity to receive new examinations and have their claims 
reprocessed. These Veterans can initiate reprocessing of their claims 
by either calling a dedicated phone number or otherwise contacting VA.
    Affected Veterans have one year from the date they are notified of 
the grant of equitable relief in which to request new examinations. 
More than 13,000 of these affected Veterans are already receiving 
service-connected compensation benefits for TBI at a 10-percent 
disability evaluation or higher, which means that the diagnosis has 
already been established.
    VA has also clarified its guidance documents that may have created 
confusion regarding the policy. We have confirmed that TBI policy 
guidance is now clear and VA is confident that examiners now comply 
with its TBI compensation examination policy.

Closing Remarks

    VA takes very seriously its obligation to care for disabled 
Veterans, their families, and their survivors. VA understands the 
importance of an accurate exam to support Veterans' disability claims. 
VA is committed to improving the medical exam experience and has 
identified it as one of the Department's 12 MyVA Breakthrough 
Priorities.
    This concludes my testimony, Mr. Chairman. I would be pleased to 
address any questions you or other Members of the Committee may have.

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