[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
VETERANS' DILEMMA: NAVIGATING THE APPEALS SYSTEM FOR VETERANS CLAIMS
=======================================================================
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
FIRST SESSION
__________
THURSDAY, JANUARY 22, 2015
__________
Serial No. 114-02
__________
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 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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Thursday, January 22, 2015
Page
Veterans' Dilemma: Navigating the Appeals System for Veterans
Claims......................................................... 1
OPENING STATEMENTS
Ralph Abraham, Chairman.......................................... 1
Dina Titus, Ranking Member....................................... 3
Prepared Statement........................................... 41
WITNESSES
Beth McCoy, Esquire, Deputy Under Secretary for Field Operations,
VBA, U.S. Department of Veterans Affairs....................... 5
Accompanied by:
Mr. Ronald Burke, Jr., Director, Appeals Management
Center, VBA, U.S. Department of Veterans Affairs
Laura H. Eskenazi, Esquire, Executive-in-Charge and Vice
Chairman, Board of Veterans' Appeals, U.S. Department of
Veterans Affairs............................................... 6
Prepared Statement........................................... 44
Mr. Gerald T. Manar, Deputy Director, National Veterans Service,
Veterans of Foreign Wars....................................... 23
Prepared Statement........................................... 54
Mr. Zachary Hearn, Deputy Director for Claims, Veterans Affairs
and Rehabilitation Division, The American Legion............... 24
Prepared Statement........................................... 65
Diana Boyd Rauber, Esquire, Associate General Counsel for
Appeals, PVA................................................... 26
Prepared Statement........................................... 71
Mr. Paul R. Varela, Assistant National Legislative Director, DAV. 28
Prepared Statement........................................... 80
James R. Vale, Esquire, Director, VBP, VVA....................... 30
Prepared Statement........................................... 89
Barton F. Stichman, Esquire, Joint Executive Director, National
Veterans Legal Services Program................................ 36
Prepared Statement........................................... 103
Kenneth M. Carpenter, Esquire, Founding Member, National
Organization of Veterans' Advocates............................ 37
Prepared Statement........................................... 112
FOR THE RECORD
Department of Veterans Affairs (VA) Appeals Data Requested by
House Committee on Veterans's Affairs Subcommittee on
Disability Assistance and Memorial Affairs..................... 123
Board Docket No. 88-03-442....................................... 128
VETERANS' DILEMMA: NAVIGATING THE APPEALS SYSTEM FOR VETERANS CLAIMS
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Thursday, January 22, 2015
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 11:11 a.m., in
Room 340, Cannon House Office Building, Hon. Jon Runyan
[chairman of the subcommittee] presiding.
Present: Representatives Abraham, Lamborn, Zeldin,
Costello, Bost, Titus, Brownley, and Ruiz.
Also Present: Representative O'Rourke.
OPENING STATEMENT OF CHAIRMAN RALPH ABRAHAM
Mr. Abraham. Good morning, everyone. Thanks for being here
and thanks for your patience.
This oversight hearing of the Subcommittee on Disability
Assistance and Memorial Affairs will now come to order. I first
want to take a moment to welcome the subcommittee members,
those who are new to Congress, new to the committee, and also
those who are returning to this committee.
It is a true honor to sit as your chairman of this
subcommittee and I am also pleased to welcome my colleague,
sitting ranking member, Ms. Dina Titus.
By way of short introduction, I am a licensed physician, A
military veteran, pilot, farmer, former veterinarian, a
husband, and proud father, and proud grandfather now. So I am
so pleased to be here and be a representative of the Louisiana
Fifth district.
I know that the Veterans' Affairs Committee has been
vigilant in its oversight of the Department of Veterans Affairs
and has been recognized for its ability to proceed in a largely
bipartisan and reasonable manner to benefit our military
veterans and certainly their families.
In recent years, terribly grey matters have been
productively addressed, and I look forward to continuing that
tradition with Ms. Titus and members of the subcommittee on
issues that are critically important to our Nation and
certainly to our veterans.
To that end, we are here today at the first DAMA
subcommittee oversight hearing committee of the 114th Congress
to examine the appeals process for veterans' disability claims
within the Department. We will focus upon appeals, remands, the
rate of remands and the lengthy delays that plague the system.
I am aware that the Department chose to prioritize certain
initial claims in recent years, but I must say that when
veterans in my District shared that they wait 6, 8 and even 10
years and more to resolve a meritorious appeal of service-
connected disability claim, I find that more than just
alarming, and certainly unacceptable.
I imagine that both members of the dais and witnesses at
the table will agree with that assessment. These claims for
service connected disability benefits need to be adjudicated
and explained correctly the first time. And when the appellate
review is needed, that process must be thorough, swift and very
fair.
This issue cannot be minimized or ignored as the VBA has
consistently reportedly increased figures on the number of
appealed claims, which currently sits near 290,000. The Board
of Veterans' Appeals reports an inventory of approximately
60,000 appeals and project explosive increases in coming years.
That means that over 350,000 appeals are currently
stockpiled. Some have bounced back and forth in the process for
again, well over a decade. And each stage of the appellate
system constitute delays, and multiple years, it is not weeks
or months, it is years.
So despite the existing statutory requirements, we now know
that it the appeal claims are often placed on the back of the
burner in favor of VA deciding initial claims as the VA reports
that the notices of disagreement period can offer sometimes
over 400 days.
The average length of time in the next step of the appeals
process between the filing of the substantial appeal and the
issuance of a board decision is 960 days.
By the VA's reported figures, nearly half of the BVA
decisions result in remand, which often extend the veterans
delay by additional years. Unfortunately, the delay alone is
not the sole problem facing the veterans in the appellate
system.
I understand just 2 months ago, the Court of Appeals for
veterans' claims held the Secretary of Veterans Affairs in
civil contempt, citing the Department's gross negligence in
ignoring any veterans who repeatedly raised concern on an
appeal that had been remanded to the Department. The court
noted that the veterans were frustrated because the VA
seemingly acts with little urgency on remanded claims.
As to this particular case, the court noted that the VA's
inactions, ``Conjured a vision of a drowning man, watched by a
lifeguard, in a nearby boat, equipped with life preservers and
rescue ropes, who decides to do nothing, even though the
drowning man is blowing a whistle and firing flares to call
attention to his plight.'' That is pretty strong language, but
ladies and gentlemen, we have real problems within the system.
I anticipate that our panelists this morning will provide
helpful information on their respective roles as well as
challenges to the existing process. From the Veterans
Administration, including also the Appeals Management Center,
and Board of Veterans' Appeals, veterans service organizations
and attorney advocates, I thank you all for coming today and I
would like to briefly welcome our witnesses.
On the first panel we have Ms. Beth McCoy, Deputy Under
Secretary of Field Operations. Thank you for being here on
behalf of the Veterans Benefits Administration who is
accompanied by Mr. Ronald Burke, Director of the Appeals
Management Center and the National Capital Region's Benefits
Office. Also on the panel is Ms. Laura Eskenazi, the executive
in charge and vice chairman of the Board of Veterans' Appeals.
And after we conclude with panel one, we will see seat a
second panel consisting of Mr. Gerald Manar, Deputy Director of
National Veterans Service, Veterans of Foreign Affairs; Mr.
Zachary Hearn, Deputy Director for Claims, Veterans Affairs and
Rehabilitation Division within The American Legion; Ms. Diane
Boyd Rauber, Associate General Counsel for Appeals with
Paralyzed Veterans of America. Mr. Paul Varela, Assistant
National Legislative Director of Disabled American Veterans;
and Mr. James Vale, Director of the Veterans Benefit Program of
Vietnam Veterans of America.
Then panel 3 will include Mr. Barton Stitchman, Joint
Executive Director of the National Veterans Legal Services
Program; Mr. Kenneth Carpenter, founding member of the National
Organization of Veterans Advocates.
With those introductions compleat, I also thank the member
who is not on this committee but who has expressed an interest
in today's hearing's topic, I would like to ask unanimous
consent that Representative O'Rourke be allowed to participate
in today's hearing.
Hearing no objection, so ordered.
Thank you all for being with us again today, and I now
yield to our ranking member for her opening statement.
[The prepared statement of Chairman Ralph Abraham appears
in the Appendix]
OPENING STATEMENT OF RANKING MEMBER DINA TITUS
Ms. Titus. Thank you, Mr. Chairman. I want to congratulate
you on your recent election to represent Louisiana's Fifth
Congressional District, and also on your appointment to the
chair this very important committee.
I was fortunate to have a very productive relationship with
the former chairman, Mr. Runyan. And I look forward to
continuing this committee's tradition of working in a
bipartisan fashion to be sure that we provide the benefits that
all our veterans deserve.
I am excited to be the ranking member of this subcommittee,
and I look forward to the work we have outlined and are going
to be undertaking in this Congress.
As many of you in this room know, the problems with the
appeals process is a recurring topic in this subcommittee.
Since joining the subcommittee 2 years ago, I have been
concerned about the looming backlog of appeals at the VA.
Almost 2 years ago, in June of 2013, our subcommittee met, and
I raised the concerns that we are trading a claims backlog for
an appeals backlog. Trading the devil for the witch, so to
speak. As we clean up the claims, are we going then to create a
problem with appeals?
My statement then is equally applicable today. I warned at
that time of an impending appeals tsunami and the need to have
a plan to address the anticipated growth in the number of
appeals.
While the VA and the VBA have increased their output, all
the metrics continue to show that the problem is growing. And
veterans in Nevada and across the country are waiting far too
long for a VA decision.
As you heard the chairman, who gave some pretty compelling
statistics, it is just taking too long. Nationally the average
length of time to receive a decision from the VBA in 2013 was
1,255 days. That is nearly, 3\1/2\ years, 3\1/2\ years. That is
way too long.
In Nevada, there are close to 1,400 appeals waiting to be
adjudicated. And when a veteran comes to my office to say what
has happened to my appeal, it is not very encouraging to go
tell him, we don't know and it is going to take 3 years before
we find out. That is just not acceptable.
I am concerned that as we address this problem, we haven't
been provided with a detailed plan of how we are going to
address it in an overall fashion. We are once again receiving
piecemeal recommendations instead of a comprehensive plan. I
think we need to take action so we don't get too far behind and
we are not having this exact same hearing 2 years from now.
In Congress here, we need to work collaboratively with the
VA and with the VSOs to come up with that plan and create a
system that will deal with these appeals in a timely fashion.
But we need also to ensure that while we are doing that we are
giving them a full and careful evaluation, we are not just
rushing through the process.
In the 113th Congress, I highlighted a need to form a task
force that would include the key stakeholders, would meet, have
a hands-on approach, and come up with such a plan they could
present to us. I appreciated at that time Chairman Miller's
support for the idea and it eventually did pass the House.
Today, I plan to reintroduce that same legislation and I
would welcome members of this committee to join me as
cosponsors.
It is unfortunate that we have lost two years during this
time when we could have had a comprehensive plan completed, and
then we would be ready to meet the challenge as opposed to
talking again about what we might need to do.
Now, I understand that the VA has conducted a study to
better understand the appeals process from the veteran's
standpoint and I look forward to having you all share that with
me and the members of this committee and the chairman
especially.
To me, the situation is really clear too many veterans have
waited too long to have their appeals evaluated. It is up to us
to try to work with the VA to improve that system and improve
it fast. We need a better plan and I think that commission will
help us get there. We need ideas from the experts so we can get
to work.
Another idea our subcommittee should explore is one that
has been proposed by Mr. O'Rourke and Mr. Cook. And I am glad
Mr. O'Rourke is here to create a fully developed appeal,
similar to the fully developed claims initiative that has been
so popular, so I hope we will hear more about that.
Again, thank you, Mr. Chairman. I look forward to working
with you and I am glad we are starting off early on this issue.
[The prepared statement of Ranking Member Dina Titus
appears in the Appendix]
Mr. Abraham. Thank you very much.
Are there any other members who would like to make an
opening statement?
I would like to welcome our first panel seated at the
witness table, good afternoon. We are going to first hear from
Ms. McCoy and then we will hear from Ms. Eskenazi.
STATEMENT OF BETH MCCOY
Ms. McCoy. Mr. Chairman, ranking member, members of the
subcommittee. Thank you for the opportunity to discuss VA's
commitment to reducing the pending inventory of appeals and
increasing efficiency within the process.
The VA has made significant progress, 60 percent reduction
in 22 months, on its goal to eliminate its disability claims
backlog, which is any rating claim that is pending more than
125 days, and improve the quality of its decisions on claims.
VBA set a record production in fiscal year 2014 over 1.3
million claims completed without sacrificing quality, which at
the claim level is at 91 percent now, compared to 83 percent in
2011. Looking at quality down at the medical issue level, the
accuracy is at 96 percent.
Amidst VA's record-breaking production we remain committed
to making the appellate process more timely and efficient for
our Nation's veterans and their families.
With this increased rating production, VA's volume of
appeals has grown proportionately. Historically, the rate of
appeal has remained steady over about the last 20 years,
regardless of production or quality. VA's historical
administrative appeal rate has remained constant at about 10 to
11 percent of all claimants filing a notice of disagreement or
what we call an NOD. And about 4 to 5 percent then completing
an appeal to the Board of Veterans' Appeals.
These statistics indicate that veterans tend to exercise
their right to appeal at the prevailing rate regardless of the
nature of VBA's initial decision. This data also reflects there
is no correlation between accuracy of the initial claims
decisions and the rates of appeal.
In fiscal year 2014, VBA received 145,000 NODs, which
equates to about 11 percent of the claims decided by VBA that
year.
The majority of the appellate process is conducted at VBA's
regional offices before the case is transferred to the Board
for a final agency decision. Each regional office is required
to review the appellant's claim file, many of them are multi-
volume files, and obtain or make substantial effort to obtain
all the evidence that is relevant to the case.
Due to the open record for appeals, appellants can submit
new evidence or make new arguments at any time resulting in
many cycles of additional development.
During the review, the RO will also grant additional
benefits as warranted along the way, allowing veterans to
receive compensation benefits more quickly.
It should be noted that approximately 72 percent of appeals
are from veterans who are already in receipt of compensation
benefits. VBA also oversees the Appeals Management Center, or
the AMC, in Washington, DC, which was established in 2003. It
is a centralized resource for processing of appeals remanded by
the Board for additional development, about two-thirds of which
are due to additional evidence received after they have been
certified to the Board.
VBA allocates significant resources to appeals in its
regional offices, about 950 full-time employees right now, and
at the AMC, about 191 full-time employees.
Members of the appeals teams in the regional offices and
AMC are dedicated to working appeals only during normal
business hours, and have been completing disability
compensation claims during overtime hours.
In fiscal year 2014, VBA took almost 182,000 appeal
actions, an increase of 13.4 percent from the prior year. VBA
is also redesigning the manner in which employees are
evaluated. We have launched a performance standard work group
comprised of our leaders, union leaders and employees to do the
work. To fundamentally change performance standards of claims
processors from task-oriented points to a system that is one
focused on veteran outcomes. The effort also includes input
from others outside of VA on how performance is measured in
other agencies and in the private sector.
Just as we have transformed the rating claims process, we
are looking also to transform the appeal process, using
employee training, tools, streamlining processes and
implementing modern technology. It is not something we can do
ourselves, we count on working with Congress, the veterans
service organizations and other stakeholders to explore long-
term legislative solutions that provide veterans the timely and
meaningfully right of appeal that they deserve.
This concludes my remarks. I will be happy to address any
questions you have.
[The prepared statement of Ms. McCoy appears in the
Appendix]
Mr. Abraham. Thank you.
Ms. Eskenazi, you are now recognized for 5 minutes.
STATEMENT OF LAURA H. ESKENAZI
Ms. Eskenazi. Thank you. Good morning, Chairman Abraham,
Ranking Member Titus and subcommittee members. My name is Laura
Eskenazi. I am the vice chairman and executive in charge of the
Board of Veterans' Appeals. As you noted with me from the
Veterans' Benefits Administration is Beth McCoy, Deputy Under
Secretary for Field Operations, and Ronald Burke, Director of
the Appeals Management Center.
Thank you for inviting us here todays to discuss VA's
commitment to providing veterans with timely and quality
appeals decisions. We are here today representing the dedicated
hardworking employees at VA, many of whom are veterans or
family members of veterans.
Working closely with Secretary McDonald, all of us are
deeply committed to increasing efficiencies that we may provide
our Nation's veterans with the outstanding service they
deserve.
The VA appeals process is very different from any other
appeals process. It is not one in which a single appeals office
in VA assesses whether to affirm or reverse a prior decision.
The responsibility for processing appeals in VA is shared
between the Veterans Benefits Administration and the Board of
Veterans' Appeals, which is why you see both offices
represented at the table today.
The VA appeals process is complex. It has multiple stages,
it is non-linear. The process is heavily set in law with a
continuous open record that welcomes submission of new evidence
and new arguments from the veteran at any time.
As a result of this open record framework, the matter on
appeal often no longer resembles the initial claim. Moreover,
the open record often requires VBA to cycle back to an earlier
step in the process as opposed to advancing to a final Board
decision. This is required to comply with the legal
requirements set forth in statute and binding case law to
provide the veteran with the right to one review on appeal to
the Secretary.
Throughout an appeal, the VA has the duty to assist the
veteran in establishing his or her appeal by ensuring that the
record of evidence is complete, and current for purposes of
adjudication.
Given that nearly all appeals involved medical disability
determinations, and that medical conditions evolve, appeals are
frequently sent back or remanded to gather new evidence, and
issue a new decision on that new evidence, which the veteran
can then appeal back to the Board.
The landscape of the veterans appeals process changed in
1988 with the establishment of the United States Court of
Appeals for veterans claims. As a result of the legal
complexity that has developed with court review, it has become
increasingly challenging for VA to complete an appeal by
reaching a final decision. Simply put, the current design of
the appeals process is incompatible with timely final appeals
decisions. We have seen the remand rate from the Board rise
steadily over the years since judicial review from a low of 23
percent in fiscal year 1990, to over 45 percent in the last 3
fiscal years.
During the past year, VA has actively participated in
collaborative discussions with the veterans service
organizations on ideas for reform. One concept that gained
traction was to provide veterans with a choice of a different,
more streamline avenue of appeal. This voluntary choice is the
core principle of what has been referred to as the fully
developed appeal, or FDA.
While the FDA would not be a silver bullet, it would offer
a more efficient finality-driven approach, and perhaps serve as
a model for other streamlining ideas.
In conclusion, veterans are waiting too long for final
appeals decisions under the current legal framework. We are
very thankful for the work by Congress, this committee, and
other stakeholders, including the veterans service
organizations, to explore long-term solutions to provide
veterans with the timely appeals process they deserve.
Thank you. I would be happy to answer any questions from
the committee.
[The prepared statement of Ms. Eskenazi appears in the
Appendix]
Mr. Abraham. Thank you, Ms. Eskenazi.
I will begin the questioning and then we will recognize the
ranking member and other members of our panel, several come to
mind.
I have got a figure here, and you can tell me how accurate
it is, I am told it is accurate. It goes from 2012 to 2014, it
is from the Department of Veterans Affairs, it says ``59
percent of all Board decisions contain at least one claim that
required additional development.'' Would you agree or disagree
with that premise?
Ms. Eskenazi. That sounds accurate.
Mr. Abraham. You stated in your remarks that this is a
different process, it is non-linear. And the general broad
question is why is it different from any other appeals process?
And why is it non-linear?
Ms. Eskenazi. I am happy to answer that. In most appeals
processes, you have a decision that is made, and then when
someone, appeals it goes to an appellate tribunal who looks at
the initial decision based on the record that existed at that
point in time and decides whether to affirm the decision,
saying it was appropriate, or to reverse the decision, saying
was wrong under the law.
In this system it is very different. We have a system that
has been built up over decades since World War I, and has many
layers designed in the statute, initial appeals decisions, and
some cases that come all the way to my office, the Board of
Veterans Appeals, but not all. And cases that do come to the
Board, the Board's standard of review is what is considered de
novo. In other words, the Board takes a fresh look at
everything and is not saying whether the first decision was
necessarily right or wrong, it is just a new decision.
Mr. Abraham. I understand that.
Ms. Eskenazi. The other key aspect, if I may just continue,
is that open record. We are not just looking at a frozen
record, we are constantly getting new evidence.
Mr. Abraham. It would seem that if this has been in place
for decades as you say, it agreeably has not worked at any
level that certainly we can move to change the non-linear
process to something more applicable to modern technology, to
do a much better job.
Ms. Eskenazi. Great comment. As I said in my opening
statement, everything changed with the creation of the judicial
review, the United States Court of Appeals for Veterans Claims.
Mr. Abraham. 1988.
Ms. Eskenazi. Yes, 1988 the court was established. You took
an already multilayered process that made sense when it ended
in the agency and then added another layer of review which has
contributed to the churning that we see in the process.
Mr. Abraham. Another question here, what percentage of
cases in the Board's inventory are those which have been
returned from either the AMC or regional office following a BVA
remand order?
Ms. Eskenazi. On an annual basis, the Board last year, for
example, fiscal year 2014, we remanded about 45 percent of the
cases that we decided. We decided 55,000 decisions which was
the most ever for the Board since the court was created.
Generally, about 75 percent of cases that are remanded returns
to the Board. When a case is remanded, BVA obtains the
additional evidence and they issue a new decision. So some
appeals are granted at that point and do not return to the
Board.
Mr. Abraham. How many come back from the AMC?
Ms. Eskenazi. About 75 percent of remands are returned to
the Board.
Mr. Abraham. Okay.
What subset of these cases have already been subject to two
or more BVA remand orders?
Ms. Eskenazi. It is common that the cases are remanded more
than one time, sometimes for the same matter, sometimes for
things that have changed in the interim. Sometimes for changes
in the law that have taken place in the interim. So it is very
common that cases are remanded more than once.
Mr. Abraham. You mentioned the VDA, a newer process, that
is coming online. Where do we stand there?
Ms. Eskenazi. I am sorry?
Mr. Abraham. The VBMS.
Ms. Eskenazi. Yes, VBMS is essentially a electronic claims
file, so for as long as the Department has done these cases
they have been in paper form, some of them quite voluminous.
Several years ago we moved towards the electronic claims
folder, which is the Veterans Benefits Management System. For
claims processing, it is more than just a record, it is a very
robust database that performs its--a lot of functions that were
previously manually done.
Mr. Abraham. How effective is that VBMS for the VBA?
Ms. Eskenazi. For the Board we are users the VBMS, instead
of looking at files in paper, we will look at files on the
computer screen, but at this point, that is what we are using
it for, for the Board, is simply viewing the records of
evidence.
Mr. Abraham. Okay.
Ms. Titus.
Ms. Titus. Thank you, Mr. Chairman, Ms. McCoy, I would just
ask you what the VA has done in terms of planning to address
this problem that we know is coming, who has been involved in
that planning? Have you looked at the need for more staffing or
other resources? And what about alternatives like prioritizing
appeals?
Ms. McCoy. Thanks for that question, ma'am. We have looked
at this with all of our partners, with the Board of Veterans'
Appeals, with the veteran service organizations, with
congressional support, looking at all the sort of opportunities
that we can find to make this process better for veterans and
their families.
I would say that we are in the process right now of adding
about 300 full-time employees in VBA, which by the beginning of
fiscal year 2016 we will then add that number to our appeals
cadre across the country. So that we have added some full-time
employees, but we are also looking at efficiencies that will be
gained with the electronic record in VBMS. Right now on the
rating side we have about 94 percent of our ratings pending
claims are electronic claims in VBMS. And that number is
growing as far as the appeals every day.
Ms. Titus. Could you address the issue just metioned, about
the appeals that are remanded. And what are some of the causes
for those remands, both internally and externally? I know you
said a number of them are caused by external problems.
Ms. McCoy. Absolutely. There are a lot of due process
protections built into the appeals process. We make a decision
an initial decision on a case. I mentioned in my opening
statement about 72 percent of appellants are receiving
compensation, and about 56 percent of them are receiving 50
percent or more in evaluations. So it is important for us to
focus on that initial rating claim to get those benefits in
folks' hands. It is equally important to focus on appeals.
We receive a notice of disagreement in an informal appeal,
and we take action on that. That can include a step--we issue a
statement of a case. We may also grant a benefit at that point
and issue another rating decisions.
If the appellant decides to make a formal appeal and file a
form 9, then we can have additional statements to the case.
There are decision review officer hearings before and after
that certification. There are multiple stages in the appeal
process to make sure the veteran has their day in court, they
are allowed to be heard, that we make sure we gather all of the
evidence. And because some of these appeals do pend over a
period of time, conditions do worsen. I do want to emphasize
that when we see a worsening, when we obtain additional
evidence that warrants additional benefits, we pay those
benefits right away.
Ms. Titus. I would ask Ms. Eskenazi to kind of address that
issue of the 72 percent of the claims who are already receiving
some kind of benefits. If that is the case and they are already
getting something, does it makes sense to prioritize appeals?
Ms. Eskenazi. Well, though they are receiving some degree
of benefits, they have a right to continue to pursue all types
of benefits. I mean, even veterans receiving 100 percent
disability compensation can still continue appeals. So grade of
payment does not have any affect on the appeal.
In terms of prioritizing, you know, certainly under the law
currently in existence again rate of payment does not stop the
right to appeal.
We have many cases in the system in which veterans are
receiving payment at 100 percent and they still continue
appeals, and that is certainly their right to do so.
Ms. Titus. Is there any system that makes sense as a way to
prioritize?
Ms. Eskenazi. I am sorry?
Ms. Titus. Is there any kind of system that you can think
of that would make sense for prioritizing claims?
Ms. Eskenazi. Well, the question really becomes what do
veterans believe would be fair for them, because although they
may be receiving a high benefit on one disability, many
strongly feel that they should also receive that same rating
for other disabilities. And they have that right under this
very due process system that we have.
Ms. Titus. I know that the claims process has undergone
some changes where you can fast track smaller claims, you have
whole approaches to some, different kind of priorities. I just
wonder if we can do that in the appeals process.
Ms. Eskenazi. At the Board of Veterans' Appeals we are
required to decide appeals in the order in which they are
placed in the docket. So that is a very strict priority order.
We do not have the ability to decide appeals outside of that
strict order.
So for example, remanding claims, they save their place in
line. When remands come back to the Board, they are naturally
older and they go right to the front of the line. As the Board
continues to have more remanded cases and those come back, it
becomes more challenging to reach those newer appeals because
we have to do the older ones first.
Ms. Titus. And since it is always open, is there any
definition of backlog?
Ms. Eskenazi. We talk in terms of inventory, there are so
many stages in the appeals process and many appeals resolve at
the early stages, and many appeals continue through all the
stages. And even preparing for this hearing, we are were asked
to look at the 10 oldest appeals at the Board and at that point
in time, and we have some appeals that have started in the late
1980s again around the time the court was created.
They look very different today than they looked when they
were first decided, but it is very exemplary of the veterans
right to keep on pursuing. And VA's duty is to assist the
veteran in trying to establish whatever claim it is that they
are seeking. That is also part of the reason that we have the
remand rate is to try and get that additional evidence to try
to substantiate the benefit rather than simply just denying it.
Ms. Titus. Thank you, Mr. Chairman.
Mr. Abraham. Thank you, Ms. Titus.
Mr. Lamborn, I recognize you for questioning.
Mr. Lamborn. Thank you, Mr. Chairman, Chairman Abraham and
Ranking Member Titus, congratulations to both of you for your
appointments, I look forward to working with you and helping
you in this important subcommittee.
Ms. Eskenazi. I hear from my Colorado Springs constituents
that it typically takes 5 years from when they request a
hearing to when a hearing takes place. For fiscal year 2014,
the Denver regional office received 420 hearing slots, but
there were 2,200 veterans awaiting a hearing. For this year it
is projected to be 450 hearing slots, but 2,100 veterans
awaiting hearings, and that math doesn't work.
I know you touched on this already, but tell us what I can
tell the people like Richard--I won't mention his last name for
privacy reasons--he has been waiting 3 years to await a
decision. So what can I tell my veterans that you are doing to
help this backlog?
Ms. Eskenazi. Thank you. Yes, for hearings there is quite a
wait time and it varies throughout the country, depending on
the location. One thing that the Board is doing more of is
offering video hearings. Historically, and hearings are
optional in appeals, veterans do not have to elect a hearing
with a Board judge because you need their appeal. And we are
trying to do more education on that, to ensure that those who
do request a hearing understand that it is certainly not
required, it is their option.
We have a few types of hearings that we offer.
Historically, one of our 65 veterans' law judges will travel
around the country to regional offices to sit for a week face
to face with about 45 veterans and conduct a hearing in their
appeal.
We also offer hearings at central office here in
Washington, D.C. and some veterans do elect that option. In
recent years, we have been increasing the amount of hearings
that we offer through video teleconference technology. That
certainly is a much more efficient time----
Mr. Lamborn. Anything else besides the video conferencing?
Ms. Eskenazi. For the hearing options?
Mr. Lamborn. Yes.
Ms. Eskenazi. Certainly. What we are also informing
veterans is they can also submit their arguments in writing,
and what they would tell the judge, they can put them in
writing and send it to the judge again, that would move their
case along a little faster. But certainly, hearings are an area
that we need to achieve more efficiencies.
Mr. Lamborn. Now, as you know we have added a lot of staff
in Congress during the years I have been serving. And we have
added incentives, financial incentives, to employees in the VA
to do a faster and better job. Of course, we don't want to
sacrifice either one of those, speed and accuracy. How are
those incentives working, in your opinion?
Ms. Eskenazi. The board is very grateful for the increased
resources we have received over the past 2 fiscal years. It has
allowed us to hire over 150 new attorneys, which are so
essential to adjudicate these appeals.
As a result, the Board increased its output to, last year,
55,532 appeals, which is the most in the history of the Board
since the court review was established. So we have taken a 20
percent increase in staffing and increased our output at the
Board by 30 percent. So we are very grateful for those staffing
efficiencies.
Mr. Lamborn. And the incentives, are they helping the
process as well, the financial incentives, bonuses, overtime,
et cetera?
Ms. Eskenazi. The board provides some financial incentives
to some of our staff to reward a job well done. We are more
focused on providing timely quality decisions irrespective of
that sort of----
Mr. Lamborn. Thank you. My last question, within VBA, which
Senior Executive Services, SES employees have their performance
measured to include this important matter of appeals?
Ms. Eskenazi. For VBA, I will defer to Ms. McCoy.
Ms. McCoy. Sir, in all of our performance standards for our
senior executives in the field, so for instance, the regional
office directors, appeals is one element of many, many elements
that are factored into their final performance evaluation.
Mr. Lamborn. It is one measurement that you take, or one
metric----
Ms. McCoy. Yes, it is.
Mr. Lamborn [continuing]. For evaluating performance?
Ms. McCoy. It is.
Mr. Lamborn. Could myself, and the staff, and the chairman
see these standards, please? We would like to see them in
writing.
Ms. McCoy. We will work with our legislative offices to
answer that.
Mr. Lamborn. Okay, thank you so much. I will take that for
the record. Thank you so much.
I yield back, Mr. Chairman.
Mr. Abraham. Thank you very much. Mr. Ruiz.
Mr. Ruiz. Thank you very much, Mr. Chairman, and ranking
member for holding this meeting, this hearing. This is very
important to the veterans throughout our districts and
throughout our country.
I am proud to represent the eastern portion of the
Riverside County which has the ninth largest veteran population
in the country. More than 50,000 veterans reside in my District
alone. I am honored to once again represent them on this
subcommittee where we will work together and shine a light on
problems in the VA and provide veterans the benefits they have
earned.
Today we are focused on ensuring that veterans have the
chance to appeal decisions on their benefit claims, which for
many will mean the difference between access to benefits and
even life and death.
As today's panelists have testified, the number of appeals
pending already approaches 3,000,000 and is only expected to
grow in coming years. As Representative Titus mentioned,
because we improved the claims backlog with the sheer number 10
percent naturally will be appealed. The appeals claims will go
up as well. So we can count on and need to be prepared to
remedy that as soon as possible.
We have made a commitment to caring for our veterans, and
we owe them an answer on appeals for that care in a timely and
accurate fashion. Especially when more than a quarter of
veteran appeals are successful, when a decision is finally
issued. So that's one out of four get those decisions reversed,
and get the benefit, and the claims, and the help that they
need.
That is why I am reintroducing the Veterans Access to
Speedy Review Act. My bill addresses the unaccessible appeals
bills backlog by increasing the use of video teleconferencing,
as you mentioned, during an appeals hearing as a substitute for
requiring the veterans to attend in person. This is evidence-
based policy and I will give some evidence behind how that
works.
My legislation will guarantee veterans the option of video
teleconferencing, guarantee them the option of video
teleconferencing for hearings before the Board of Veteran
Appeals to allow a hearing at the earliest possible date. In
2013, on average, video conference hearings were held 110 days
sooner than in-person hearings. It works.
Should any veteran prefer an in-person hearing, my bill
ensures that person will have the final say on the manner of
hearing for their appeal. This simple improvement will increase
flexibility to relieve the physical and financial burdens on
veterans who must travel to appear at appeal hearings in
person. It will also streamline the review process to decrease
wait times and save taxpayers money. The VA testified that this
bill will make processing claims more efficient and eliminate
substantial travel costs to our veterans and the VA system.
This bill is a commonsense, cost neutral solution which is
why it passed the full Veterans Affairs Committee by a
bipartisan voice vote last Congress. So I urge my fellow
subcommittee members to support this bill and start bringing
veterans their earned benefits as soon as possible.
So to the panelists, and to my colleagues, with that in
mind would you support the increased use of veterans requested
teleconferencing by the Board of Veterans' Appeals? First, to
my colleagues, if you do so, would you kindly consider being
original cosponsors before I reintroduce this bill? To my
Republican colleagues as well. And now to the panelists, can
you describe how this has actually produced the results and how
veterans have utilized this veteran processing tool and option?
Ms. Eskenazi. Certainly, I am happy to address that topic.
I have described the types of hearings that the Board offers,
and historically it has been the face-to-face, in-person
hearing. We have had some success increasing video hearings,
but under the law, we have to wait for the veterans to request
the video hearing. And if we had the option to default the
scheduling or a video, then certainly still welcome and allow
the face-to-face for those who really want that option. It
would just gain some efficiencies from a logistical standpoint.
The face-to-face, in-person hearings require finding a
judge who travels to areas as far as Manila. And obviously--we
have 65 judges right now and they also work intensively on
signing decisions. So you can schedule more video hearings
without the barriers of the travel. So that can lend to those
efficiencies in the time saved that you referenced.
Mr. Ruiz. How have the veterans responded to that
opportunity?
Ms. Eskenazi. We have had a really successful increased
rate of video hearings. And with the new technology it has been
very helpful. When we started this back in the 1990s, the
technology was not too great, all tube televisions and clunky
recorders, but everything is state-of-the-art technology,
digital recording. And in fact, we don't see any difference in
the outcomes of appeals where there is hearings by video,
versus hearings face to face. The outcomes have no statistical
difference.
Mr. Ruiz. Thank you very much, my time is up. All of my
colleagues will receive a copy of the bill that I will
introduce, and hopefully you all will consider being original
cosponsors. Thank you.
Mr. Abraham. Mr. Costello.
Mr. Costello. Thank you. My question is for Ms. Eskenazi,
and ultimately, the question is going to be how and what
stakeholder support do we need in order to transform the
appeals process with legislative reform. I thought that you
laid out very well for me what the Veterans Traditional Review
Act in 1988 did to complicate--it is not to suggest that we
shouldn't have that law--but to complicate the synchronizing
that with the way you go about developing a claim and handling
it judicially. All within the context of have an open record. I
can appreciate the need for an open record. We are dealing with
veterans, we are not dealing with a land use hearing or a
criminal matter where you have your day in court, if you didn't
make your argument, you are done.
Here I think, particularly with new evidence possibly
coming about or a claim not being fully ripe when the claim is
made, but still the need to get that claim in the pipeline
because you need the care or the benefit.
I can also appreciate from the remand perspective that two-
thirds of the reason for a remand is because of additional
evidence or due to a change in circumstances after the claim
arose, so I can understand that. Clearly, though, there is a
problem with the remand process here and how that keeps claims
in the system for a very, very long time.
It seems to me that there needs to be a remand reform
element to how we address this legislatively. It needs to be
fair to veterans. It also needs to enable you to streamline
this process so that when a veteran is submitting a claim,
either as much of that claim comes about or every alternative
theory or justification in an argument that can be made is made
at that time. But share with me, as you talk about clearly
being a stakeholder in this from a legislative reform
perspective, what we can do to help reduce the number of
remands, either on the way in the door by making the claims
easier to process, or if more evidence is needed and that is
why it is being remanded, isn't there a way to maybe short
circuit the time lag on the remand in order to get that
evidence back in the door? What are your thoughts? How do we
make it a more streamline process?
Ms. Eskenazi. Great question and great summary of the
constraints that exist in the process today.
One thing I would note is we are very thankful for the
support that was given to the Camp Lejeune Act recently which
provided that for evidence that the veteran or the veteran's
representative submit with the VA form 9, that is the formal
appeal stage, that evidence may come straight to the Board and
be reviewed without having to send it back for another
decision. Now, that is for appeals filed February 2013 and
later, which the Board is not quite working that time frame
yet, but that will certainly help in the future.
This is a process, because as I indicated, we are dealing
with medical conditions and medical conditions evolve, time is
somewhat the enemy. And so, we need to keep things moving along
at a steady pace so that decisions can be made without lengthy
lapses of time that allows for conditions to change. Because it
is not only the submission of evidence from the veterans or new
arguments, but like I mentioned, VA has an obligation under the
duty to assist to ensure that we have everything.
Another interesting constraint in the system is at the
point of the Board hearing where the judge meets with the
veteran, it is at a point that is supposed to be the end of the
process. Yet, it is a conversation that takes place where
oftentimes new things are illuminated and that contributes to
having to send that back.
Mr. Costello. How much or how often or is it feasible at
that point in time, before a decision is rendered, knowing that
there may not be the type of evidence needed to justify the
claim, but perhaps also knowing that that evidence may exist or
that the claimant should go out and obtain that evidence?
What I fear is that, okay, you don't have the evidence
denied. And then you are in the pipeline up the chain, which
just becomes more frustrating rather than holding back and
maybe rescheduling the hearing. Does that happen? Is there more
robust activity that could happen at the lower adjudicatory
level so that it doesn't end up knowingly getting or
predictably getting remanded.
Ms. Eskenazi. Certainly. And many appeals do resolve at
those initial stages in the Department. So after the notice of
disagreement is received by VA and certainly if the veteran
meets with the decision review officer, a large number of
appeals are resolved at those early stages.
For ones that continue through and particularly come all
the way to the Board, it is really a variety of reasons that
lead to the need for a remand at that point. Some of it is
changing conditions, some of it is just new allegations, some
of it is changes in interpretations of the law that the court
issues in the meantime. All that drives the remand cycle. But
again, it is in an effort to try and help substantiate that
claim as opposed to denying it and perhaps short-cutting a due
process matter.
Mr. Costello. And so do you feel that from a legislative
perspective, reforms can be made in order to streamline the
process or do you feel that that process can be resolved within
your department?
Ms. Eskenazi. I think that legislative reform is absolutely
needed. And as I indicated in my opening statement, there has
been a lot of discussion about different ways to streamline the
processing steps in the Department, not to shortcut a benefit
for the veteran, but to achieve the same results that we are
receiving today, just with less steps in the process so we can
move things along in a more timely fashion. That is part of,
again, the FDA. I know Congressman O'Rourke has that bill or
the express bill, or Express Appeals Act in the FDA, that the
VSOs have been working on. I do think that there is some value
in considering those options.
Mr. Costello. Thank you.
Mr. Abraham. Ms. Brownley.
Ms. Brownley. Thank you, Mr. Chairman.
I wanted to ask about the money morning workload report,
which is helpful with regards to our oversight and tracking of
the current claims. And I am wondering if there could be a
creation similarly for the appeals process.
I understand that it is different, the open record
framework that you have been speaking about, but I think it is
important to have that kind of transparency and our ability to
be able to oversee and track that we are improving and
improving--excuse me, the appeals process as a tool.
Ms. McCoy. Thank you for that question. We do have some
information on the Monday morning workload report relative to
appeals. I think that Laura and the Board also provided annual
chairman's report that gives quite a bit of information, but we
certainly would engage in the discussion for how we can add
more information and be more transparent.
Ms. Brownley. Well, I would very much appreciate that, if
you are willing to commit to it, because I think an annual
report is one thing, but to have that sort of weekly update so
that we can track it, I think, is also helpful and important.
I wanted to also direct some questioning around the
Veterans Benefit Management System and wanted to get a response
from you to talk about how if there is any progress towards
planning for an IT interface with that system so that we can
better address our appeals? And are you doing something and if
so, where are we in that process?
Ms. McCoy. Absolutely. When we launched the Veterans
Benefits Management System, our electronic paperless processing
system, just in the past couple of years, in that timeframe we
have more than 1 billion scanned images in VBMS currently. I
mentioned earlier we have more than 94 percent of our pending
rating workload in VBMS.
Mr. Burke at the Appeals Management Center has about 97
percent of the remands are paperless as well and we are growing
in the number of notice of disagreement appeals at that stage
and the form 9 appeals at that stage. It is about 50 percent at
the NOD stage, the appeals are paperless, and about one-third
are paperless at the form 9 stage.
So we are working there to get more paperless and appeals
as well. We find great efficiencies in a paperless system. In
particular in appeals in our history have had great, I call
competition for the claims folder. So if there was the one
paper claims folder at the medical center for an examination,
we would have to wait if something else came in.
If it was at the Board of Veterans' Appeals, we would have
to wait for that file to come back before we could take action
on maybe a new claim. So with that one paper claims folder, we
all wanted to have our hands on at the same time. We are able
to do that in the Veterans Benefits Management System, so that
is a big plus.
As far as the functionality for workload management, we
have more and more of that functionality being built in on the
rating side, and also more and more automation than we have
started to add and is additionally planned.
As far as the Board, we have been working with them, they
are in the two systems working with VACOLS and using VBMS as
access to view and read the file. We have, again, focused
initially on the rating side to get started and we are looking
to expand that on the appeals side.
Ms. Brownley. And do you have any time frame on the appeals
side when you might be fully up to speed or fully, you know,
operational in terms of paperless?
Ms. Eskenazi. I am happy to address that question. The
board has been leading an effort of gathering what types of
requirements. We had the assistance of a contractor in the fall
looking at all portals in the department into the appeals
process because the Board hears appeals not only from VBA; that
is certainly the most, but we do receive appeals from NCA and
VHA as well.
So we have a high-level plan to ensure that what is
designed works for the entire enterprise, not just one part.
And we are very hopeful. I mean, the 2016 budget is not set
yet, but we are very hopeful that we will be able to move out
with some funding on that planning.
Ms. Brownley. So if the funding is there in 2016, you might
be complete by 2016?
Mr. Eskenazi. I don't know about complete but certainly in
a more positive way forward.
Mr. Brownley. Thank you.
Thank you, Mr. Chairman.
Mr. Abraham. Mr. Bost.
Mr. Bost. I will yield.
Mr. Abraham. Okay.
Mr. O'Rourke.
Mr. O'Rourke. Mr. Chairman, Ranking Member Titus, thank you
for allowing me to join you today in the hearing.
Ms. Eskenazi, I didn't fully catch what you said in your
opening statement about a fully developed appeal. It seemed to
diverge from your written testimony. Could you repeat that or
expand upon what you said?
Ms. Eskenazi. Certainly. What I referenced was the concept
of providing veterans with a choice of a different type of
appeals process, and that was the core concept that was
discussed during the past year with the VSOs where you provide
the veteran with notice at the time that they elect an appeal
and allow them to go the traditional route that we have today
or allow them to try a different route where the appeal would
immediately come to the Board.
And you would have to give them the right type of
explanation but allow them to make that informed decision and
give them the opportunity to opt out as well. If they opted for
that program and then later changed their mind, certainly they
could slip back into the normal process. So that was the
concept that was discussed, and I believe some of the VSOs will
talk about it in more depth today, and it is just one of these
ideas of how can we provide the same ultimate benefits to
veterans with just a streamlined process.
Mr. O'Rourke. The bill that we introduced last year and we
are planning to reintroduce again in this session of Congress
with Mr. Cook of California would essentially do that, give the
veteran a choice. The VA would establish a pilot program. It
would be an alternative. They would have to come with their
appeal fully baked, ready to go, and would sacrifice the
ability to add additional evidence. And for that, at least in
our concept of this, you would cut two-thirds off the current
wait times. You would get a much faster response.
You know, it still would be upwards of a year, which seems
like a long time to me, but it is far better than two and a
half or three years, which is the standard. And then to some of
Mr. Costello's line of questioning, you would also eliminate
the remands back to the regional offices, and BVA would retain
jurisdiction.
I have personally no pride of ownership on this. If you all
want to do it administratively, if somebody else has a better
way to get there, I am interested to hear from DAV and others
on their ideas about this. I will get behind that.
But let me ask you this; could you implement what you just
described or what I just described administratively? Do you
need Congress to do anything, or could you just do this
yourself?
Ms. Eskenazi. One of the biggest constraints for the Board
in doing it without legislation is our requirement by law to
decide cases in the order in which they are placed in the
docket. So if we bypass those middle steps, but the case got to
the Board only to then have to wait in line behind all the
others, that is not really providing any real effective outcome
for the veteran. It is almost a false promise, and that is very
heavily set in statute.
Mr. O'Rourke. That is the part that you need law to change,
an act of Congress?
Ms. Eskenazi. Yes. Absolutely.
Mr. O'Rourke. So you are committed to the concept. You are
supportive of that whether it comes through this bill or some
other bill. Those parts of it that you could change and
implement administratively, you are committing today to doing
that, and those parts which I just understand to be that one
that you just identified that require an act of Congress, you
will help this committee in ensuring that we have the
appropriate language to do that.
And we could get this done this session of Congress and
have it running if we could get that bill to the floor this
year, before the end of this year, before the end of 2015?
Ms. Eskenazi. Certainly. Thank you so much for your
support. We view this as a team effort. There is a lot of
stakeholders, and we are all looking to do what is best for our
veterans, so the team effort approach is the best approach.
Thank you.
Mr. O'Rourke. Great. Really pleased to hear that.
Thank you, Mr. Chairman.
Mr. Abraham. Thank you.
I am going to open a second round of questioning. What
needs to happen right now for the Board's computer system to
better connect with the VBMS?
Ms. Eskenazi. Thank you. So I presume you are referencing
our database, which the acronym is VACOLS, Veterans Appeals
Locator System--I forgot a word there. It is a database that we
have had in place since the 1990s, and it is an Oracle
database. It is very antiquated, and it is a workload tracking
database. It does not contain the official record, but it is a
workload management tool.
Mr. Abraham. So you need a new software update?
Ms. Eskenazi. Well, we really need everything to be merged
into one database, whether it is somehow linked or subsumed.
VBMS is the robust enterprise----
Mr. Abraham. Who is running point on that? I mean, who is
taking that by the horns, so to speak, and actually doing
something today? Is anybody addressing that as we speak?
Ms. Eskenazi. The board has been strongly advocating for
this need, and everybody agrees with the concept. The initial
focus of VBMS was to get it built up and running for the claims
processing, and that is well on its way. But what we have seen
is you really don't get to a point where you end that because
there is always new programming features that are needed.
We have done an in-depth study, as I indicated, as to what
we need for the appeals part of the process from an electronic
standpoint. So as we receive the funding, which we are very
hopeful to receive, we will be ready to go with a plan as
opposed to just getting money and then having to create a plan.
And obviously we will have to work with--it is a heavy process
to work with IT programmers to ensure that they build exactly
what is needed.
Mr. Abraham. Is VBA supporting the Board in this endeavor?
Ms. McCoy. I would like to answer that, sir. We are
supportive of making sure that the Board has the appropriate
functionality. It is a matter of we work with our VBMS Program
Management Office, we work closely with IT, and we have a
prioritization of things that, a long wish list of things that
we would like to have built into VBMS. It is a matter of
prioritization, and it is a matter of fitting enough in each of
our every-three-month releases so that we can have that
functionality.
Mr. Abraham. Okay. Why does VBA not have functionality now?
Ms. McCoy. Either one.
Ms. McCoy. I would say it is a matter of prioritization. We
have right now in the middle of additional functionality,
additional automation to support the rating side. It is in
competition. It is high on the list, but there is not enough, I
would call it room, in each of our releases to develop and
release the functionality right now that we all want for the
Board.
Mr. Abraham. Okay. Laura, do you have anything to add?
Ms. Eskenazi. Only that, you know, that is a huge priority
for the Board for appeals. We are using VBMS as indicated to
view the claims file. We really need to maximize the
efficiencies from an IT standpoint removing manual processes
where possible.
We know that VBMS can never replace people in terms of the
adjudication process, the review by the attorney and the judge;
but we know that there is a number of efficiencies that we can
put in place to better manage work flow and to mitigate risk in
tracking all of those appeals by using different databases.
Mr. Abraham. Just one quick follow-up. I am certainly all
for better efficiency. I actually read the appeals process four
times last night trying to get the mechanics of it, and I was
given this cartoon, and I use that very loosely because there
is nothing funny about this process.
I see no time constraints. If a veteran, he or she brings a
claim into a regional office, I see no time restraints that
decision is made. I see no time restraints on the veteran's
part of any time restraints. The only time constraints I see is
when the veteran has to do a Form 9 or he has a certain amount
of time to do a Letter of Disagreement, but there is no time
constraints placed on the VA itself as far as getting the work
done in an efficient manner. What are your thoughts on that?
Ms. Eskenazi. That is an accurate observation, and
certainly we have heard that from veterans before. We will give
them periods of time to respond to documents or processes and--
--
Mr. Abraham. What about giving the veterans, holding them
on a time constraint also? Has that been discussed among you
guys?
Ms. Eskenazi. Certainly. I mean, the goal in the appeal is
to make sure that we get it right. And oftentimes when
additional evidence is needed, whether we have to go get a new
examination or to seek Federal records perhaps from another
agency, these things can take varying degrees of time. So----
Mr. Abraham. Years evidently.
Ms. Eskenazi. Yeah. Too long.
Mr. Abraham. Too long. Okay, thank you.
Ms. Titus.
Ms. Titus. Thank you.
I would just ask Ms. McCoy, you said you were hiring 300
new people. I wonder what kind of people they are, how you made
this decision, if you are sending any of them to Nevada?
Ms. McCoy. Great question. So the folks in our appeals
teams are some of the most experienced individuals that we
have, particularly our Decision Review Officers. They have the
whole broad spectrum of responsibilities on appeals, and they
often do some of the training for others in the office, so it
takes a long time to develop that experience level.
So this is kind of a two-step approach that we are taking.
So this year currently, we are adding 300 individuals across
the country to our Veterans Service centers, so bringing them
in at the introductory levels and getting them trained so that
we then will have them up to speed, and targeting the beginning
of fiscal year 2016, we can then promote those 300 FTE slots
into the appeals teams.
Ms. Titus. And the Nevada part?
Ms. McCoy. I would have to look on that, ma'am. There are
some for Nevada.
Ms. Titus. All right. Let me know.
Ms. McCoy. Okay.
Ms. Titus. Thank you, Mr. Chair.
Mr. Abraham. Mr. Zeldin.
Mr. Zeldin. Mr. Abraham, I look forward to serving with you
and Ms. Titus.
It is an important subcommittee. I represent the 1st
Congressional District of New York. Suffolk County has the
highest veterans population of any county in New York State,
the second-highest population of any county in the country. We
are served by the VA in Northport.
I was serving in the State Senate previously, and we
received a lot of outreach from people who were so frustrated
with the backlog of the Federal system. They were reaching out
to their State Senator, their councilmen, their county
legislator, whoever could possibly help them. I am honored to
serve on this committee and this subcommittee, and I appreciate
you being here and anything that you can possibly do to help
reduce that backlog. My office, we are looking to be partners
with you with the challenges that you face.
And thanks again for yielding.
Mr. Abraham. Thank you.
Mr. Bost.
Mr. Bost. Thank you, Mr. Chairman.
I sit here quietly, and I have tried as a state legislator
to help, as was spoken a while ago, our veterans. And when you
see the amount of bureaucracy they have to deal with, and I
understand as I listened to everyone that we are trying to
reduce and get that opportunity so they can receive benefits
quicker.
Just listening from this panel, and that is why I passed,
Mr. Chairman, on asking a while ago, we can't even figure out
what the amount of, level of bureaucracy that we have to climb
through, through your agency as elected officials. How
devastating is that to our veterans as they try to move through
this process? I see that you are trying, and I am glad to hear
on the computer system and that we are trying to update that.
Is it our fault as Congress over the years that we created
this, in your opinion? Or is it the fault of the agency in the
case that they themselves have created intergovernmental rules
that make it so difficult? I know we, you know, are going to
try to answer, ask questions that go on the record, but this is
the type things that my constituents want to know.
How do we straighten it out? How do we lighten it up? These
people have served us. They have claims. They need the process
to move fairly quickly, and we are talking three years, five
years, ten years. You work with it every day. How do we lighten
it up, speed it up, and how do we work with you to achieve
that?
Ms. Eskenazi. Great observation, and certainly one that we
share in terms of trying to explain this very dense process to
veterans who many of which just want a decision.
One thing to keep in mind is this process, as convoluted as
it may appear, it is in an effort to constantly provide
veterans more opportunities. It is never to say no. It is so
much due process that it is an approach that is driven to
constantly look for that piece of evidence, hear that next
contention, add on that next claim perhaps the downstream
element, and keep trying to help the veteran get to the point
where they feel satisfied with the decision that they have.
And it is somewhat subjective for the veteran as to when
that point arrives. Some veterans are satisfied early in the
process. Other veterans, such as the ten oldest appeals we
submitted to this committee, have been pursuing claims appeals
that have evolved since the late 1980s.
And on the one hand that is a very unique feature in
offering so much due process to not say no, that it is again it
is a paternalistic type of a process. The consequence, the flip
to that, though, is the time that is involved. And it is
counterintuitive to someone to explain that when they ask the
simple question how long does it take, and when will I get my
answer?
And when you have a process that is designed with so many
stages and so many points that we welcome new evidence, we look
for new evidence, we look for new arguments, and that may be
required to cycle back, it is just those two principles kind of
conflict against each other.
So then the question can then become, well how can we still
provide those same outcomes for our Nation's veterans with a
process perhaps a little more streamlined. And as we know, the
core of this process was designed after World War I, and there
has been many changes in the law over the time but usually
adding more process. And when the Court was created, it was
another layer of review added on top.
And veterans are receiving more benefits than ever as a
result of this process, so how can we get those same outcomes
with perhaps just a more streamlined set of steps. And that is
why the concepts that are imbedded in the idea of the fully
developed appeal, the Express Appeals Act, those types of
concepts are worth pursuing if we can get stakeholder agreement
to see if that can be one avenue to offer more of a streamlined
process.
Mr. Bost. Thank you.
Mr. Abraham. Ladies and gentlemen, thank you for being
here. We appreciate your presence. You are now excused, and we
will pause just for a minute while we seat the second
committee. Thank you.
On this second committee, we are going to get as much of it
done as we can before we have to recess for voting, so we are
going to move along very efficiently.
Welcome, everyone. Mr. Manar, you are recognized to present
the testimony of Veterans of Foreign Wars for five minutes.
STATEMENT OF GERALD T. MANAR
Mr. Manar. Thank you.
Chairman Abraham, Ranking Member Titus, and members of the
subcommittee, thank you for the opportunity to present to you
the views of the 1.9 million members of the Veterans of Foreign
Wars of the United States and its auxiliaries on this important
topic.
I would like to talk about some of the issues facing VA and
the Board of Veterans Appeals, as well as suggestions for
addressing some of those problems. The VA says that it made
over 1.3 million decisions in compensation and pension
disability claims in 2014, which is over 150,000 more decisions
than ever before. At a 10 percent appeal rate, VBA would be
expected to receive approximately 130,000 notices of
disagreement based on those decisions, roughly 13,000 more than
in the previous year. Sadly, those appeals will be in line
behind the nearly 300,000 appeals VA currently has. These
appeals affect real veterans and their families.
Mr. Chairman, there are over 4,900 appeals pending in the
New Orleans regional office. Nevada has 1,400 appeals pending,
while California has 16,500 appeals awaiting action in their
three regional offices. As bad as these numbers are, they pale
in comparison to the over 25,000 appeals pending in Florida. If
past is prologue, those appeals may wait over three years
before VA transfers them to the Board of Veterans Appeals.
There are several reasons why the appeals workload has
grown from 130,000 in 2004 to about 300,000 today. With the
advent of judicial review in 1988, a significant number of
decisions by the courts have forced the VA to more closely
follow the letter of the law and regulations. On several
occasions VA has been forced to readjudicate thousands of
decisions, increasing work in both regional offices and the
Board of Veterans Appeals.
Finally, many court decisions required veteran law judges
to write clearer, more comprehensive decisions for appellants.
These are all good things. However, much work had to be redone,
and decisions today may take somewhat longer to write, reducing
production at the Board of Veterans Appeals.
With the creation of the Secretary's twin goals of no claim
older than 125 days and quality at a 98 percent level, VBA has
focused with military-style precision on reducing the
disability claim backlog. Appeals team personnel, including
decision review officers, were frequently directed to process
other work. As a consequence, appeals grew from 255,000 at the
beginning of 2014 to close to 300,000 today.
It is time for VA to declare victory and start processing
the rest of its work. What actions can be taken to stop the
increase and start driving down the appeals workload? There are
no magic bullets to solving this problem. Solutions must be
crafted with this injunction in mind, that any solution that
helps VA process more appeals cannot be done at the expense of
veterans and the rights they currently enjoy. That is what
makes this really hard work, finding solutions that allow VA to
process appeals faster without hurting the due process rights
of veterans and their families.
We make five specific recommendations in our written
testimony. These recommendations include an increase in BVA and
VBA staffing, release of the Statement of the Case within 30
days of receipt of a Notice of Disagreement where there is no
additional evidence submitted, eliminate the new material
evidence requirement to reopen a claim, and reenergize the
decision review officer position to make it more effective in
reducing appeals.
Finally, building on the ideas of a committee member,
service organizations and representatives from the VA worked
together last year to explore and expand on a fully developed
appeal initiative. The idea is to fast track certain appeals to
the BVA following a waiver of existing rights by claimants.
While we support the FDA concept, there are hurdles which need
to be overcome before the idea is ready for testing.
The most significant problem involves the waiver of rights
by claimants. In order to be effective, any waiver must be
based on a clear understanding of the decision made by VA. As
we describe in our written testimony, it is our belief that the
notices provided by VA to many claimants simply do not give
them the information they need to understand the reasons for
the decision. Many notice letters fail to detail specific
evidence used in making the decision.
Further, many decisions offer only conclusions as a
substitute for analysis of the evidence and reasons and basis
for the decision. As a consequence, claimants don't have enough
information to decide whether the decision was most likely
correct, what the evidence showed, and what evidence is needed
to obtain a different result. Without this information, many
claimants do not have enough information to knowingly waive the
procedural rights they have under the current appeals process.
In conclusion, we applaud the VA and members of this
committee and the VSO community for working together to find
solutions to reduce the appeals backlog. However, the key to
making any FDA initiative work are two factors. The claimant
must have access to all the evidence considered by VA in making
its decision, and the claimant must be fully informed of the
reasons and basis for each decision made by the VA.
Mr. Chairman, this concludes my statement. I will be happy
to answer any questions you or the committee members may have.
[The prepared statement of Mr. Manar appears in the
Appendix]
Mr. Abraham. Thank you. Mr. Hearn, you have five minutes.
STATEMENT OF ZACHARY HEARN
Mr. Hearn. Thank you. 1,461 days, this is the number of
days in a standard four-year armed services enlistment. 1,937
days, this is the average number of days a veteran will wait to
have a claim adjudicated from initial filing through the
various stages of appeals. It is staggering that a veteran may
have to wait longer to have a claim properly adjudicated than
they may have served through their service contract.
Good afternoon, Chairman Abraham, Ranking Member Titus, and
members of the committee. On behalf of National Commander Helm
and the 2.4 million members that comprise the Nation's largest
wartime veterans' service organization, the American Legion is
eager to share our research and the firsthand experience
regarding the appeals process.
As you know from my written testimony, the American Legion
has more than 3,000 accredited service officers assisting more
than 700,000 veterans nationwide. Just over a year ago the
American Legion testified regarding VA's accuracy in
adjudication based upon the American Legion's Regional Office
Action Review Program and challenged VA's accuracy statistics.
Understanding the importance of accuracy is critical to
fixing the appeals process. When VA fails to accurately
adjudicate claims from the beginning, veterans are forced into
the far lengthier and more complicated appeals process.
Completing claims accurately the first time is the very simple
answer to eliminating large volumes of claims in the appeals
system.
VA identifies a backlog claim as a claim that has not been
adjudicated within 125 days. VA does not consider appealed
claims as backlogged. They merely refer to them as an
inventory. But let's be clear. For the nearly 290,000 veterans
awaiting adjudication of their appeals, a figure larger than
the population of Cincinnati, they consider their claims
backlogged.
Nearly 75 percent of claims presented at the Board of
Veterans Appeals are found to either have been inappropriately
denied at the regional office or inadequately developed and
prematurely denied. VA can correct this by starting at the
regional office. Too often claims remanded by BVA are remanded
for improper development and for failing to follow their
legally mandated duty to assist. Often American Legion national
appeals representatives will note VA did not offer
consideration regarding if a condition manifested secondary or
was aggravated by a previously service-connected condition.
If VA examiners were compelled to consider if conditions
manifested in ways other than directly related to service, many
remands for examinations would be eliminated. The American
Legion's ROAR trips have repeatedly noted this in our written
reports. While VA asserts it does not place a higher priority
on the amount of claims adjudicated, its current work credit
structure does not address accuracy in its metric, which
rewards speed over quality.
In the past year, the American Legion established Veteran
Crisis Command Centers at various locations throughout the
country resulting in the awarding of nearly $1 million in
retroactive benefits. These events allowed veterans to gain
instant personalized access to Legion and VA personnel. In
nearly every location, we came across veterans with claims that
had errors in their adjudication.
Fortunately through the joint efforts of the American
Legion and VA, we are able to correct these errors. However,
for these veterans the years of suffering and the impact it had
on their employment and their families cannot be restored
simply through the disbursement of a retroactive payment.
Today if a claim is remanded by a BVA judge, the
instructions are forwarded to the Appeals Management Center to
have requisite development conducted. These remands, or
returned claims, come with clear and distinct instructions from
the judge, yet the American Legion consistently sees cases
remanded multiple times despite having clear instructions
provided by that BVA judge. This is what is known as the
hamster wheel of remands where a veteran remains in
adjudication purgatory while waiting for VA to conduct proper
development and finally render a decision.
The most common questions we get from veterans are why does
it take so long? Why can't VA get it right the first time? Or
are they just waiting for me to die? Often you can hear the
pain in their voice. As an advocate, it kills me to constantly
hear their frustration and desperation. This is what veterans
face, an adjudication process that rewards the quick and not
the accurate, an appellate process that repeatedly notes errors
in development, and adjudication that may cause years of
hardship for our Nation's veterans.
During a testimony last summer, former Ranking Member
Michaud stated, ``There should not be a victory lap taken by VA
if they eliminate the backlog of claims meanwhile having an
abundance of appeals in inventory.'' The American Legion
wholeheartedly agrees. The greatest impact on the appeals
process would be eliminating the need to appeal in the first
place. VA needs to eliminate the current work credit structure
that places a greater emphasis on quantity of claimed
adjudicated rather than the quality of those adjudications.
An increased emphasis on training and the manner that the
training is delivered to its adjudicators needs to happen now.
As VA works to eliminate the backlog, we need to ensure that
they are not moved from a backlog claim to a backlogged appeal.
Most importantly, we need to ensure that our veterans finally
begin receiving the benefits and services they have earned
through their dedicated service.
Again, on behalf of our National Commander Michael Helm and
the 2.4 million members of the American Legion, we thank the
committee for inviting us to speak today, and I will be happy
to answer any questions the committee may have.
[The prepared statement of Mr. Hearn appears in the
Appendix]
Mr. Abraham. Thank you, Mr. Hearn. Ms. Rauber.
STATEMENT OF DIANE BOYD RAUBER
Ms. Rauber. Chairman Abraham, Ranking Member Titus, and
members of the subcommittee, Paralyzed Veterans of America
would like to thank you for the opportunity to offer testimony
regarding the appeals process. There are many problems
contributing to delayed appeals which has become more apparent
with VA's focus on reducing the claims backlog. A major cause
of delay is the high number of remanded appeals.
Approximately 45 percent of appeals are remanded often due
to an order for a new VA medical examination. This action
occurs even when favorable private medical evidence or opinions
from VA treating physicians are in the record.
In PVA cases the record often includes extensive medical
information from a Spinal Cord Injury Center physician who has
specialized expertise and an intimate knowledge of the
veteran's medical condition. Too often for PVA members, the
opinion of a C & P examiner who reviews the file and sees the
veteran once is weighed more heavily than the opinions of the
Spinal Cord Injury Center experts.
When unnecessary resources are used to seek medical
information already in VA's possession, not only is the
veteran's individual appeal delayed, the overall process slows.
At times these requests are also in conflict with the benefit-
of-the-doubt doctrine which requires the VA and the Board to
grant a claim when there is a proximate balance of positive and
negative evidence.
When an appeal is remanded, it typically returns to VBA
jurisdiction through the Appeals Management Center. It is at
this step where appeals tend to stall and be subject to
multiple remands because the AMC or regional office fails to
ensure the Board's specific orders are fulfilled. For example,
the Board may order a new examination by a medical specialist
which is instead completed by a nurse practitioner, or the
Board poses specific questions for response from the examiner
which are not fully completed, or the VA fails to follow VHA
procedures for scheduling the examination, resulting in the
veteran missing it. These are just a few examples, but when the
AMC fails to ensure compliance with the Board's orders, the
appeal must be remanded again, adding significant delay before
the veteran receives a final board decision.
Remanded appeals can take a year or more to complete. If 45
of every 100 decisions are remanded, it stands to reason that
the number of appeals will only increase as each remanded
appeal that is not granted in full must return to the Board for
further review while original appeals continue to be certified
to the Board. New original appeals linger while older remanded
appeals with earlier docket dates are decided.
A greater reliance on private medical evidence or VA
treating medical evidence and more consistent application of
the benefit-of-the-doubt doctrine could reduce remands. A
review of examination scheduling procedures would also be
helpful, as would a review of AMC training, procedures, quality
review, and accountability, to ensure proper handling of
remands.
Furthermore, when the Board determines a veteran is
entitled to advancement on the docket due to age, financial
hardship, or serious illness, that designation should be
honored and enforced on remand.
There are other ideas to reduce delay. PVA has partnered
with other VSOs as well as VBA and Board Administration in a
working group on how an expedited appeals pilot program might
allow certain appeals to be decided in a more timely fashion.
It is the intent of PVA with VSO partners to support the
introduction of bipartisan legislation to implement such a
pilot program. In addition, PVA continues to support the
strengthening of the DRO program and requiring DROs to work
solely on appeals where their expertise can be of best use.
As has been discussed by several of the other panel
members, an unexpected challenge has occurred in the area of
technological improvement. PVA supported VA's adoption of VBMS.
Unfortunately VBMS lacks appeals-friendly features to allow it
to be efficient. We are pleased that the Board's administration
has included VSOs in meetings to collaborate on ideas to
improve VBMS specifically for appeals work. However, adequate
funds must be ensured so the Board can accelerate VBMS
improvements and continue to engages VSOs in that process.
Finally, Mr. Chairman, when a claimant files a meritless
appeal or compels a representative to do so, that appeal clogs
the system and draws resources away from legitimate appeals.
Since 2012, PVA has required clients to sign a notice of
limitation when they execute their power of attorney to
acknowledge we will not appeal every adverse decision and
reserve the right to refuse to advance any frivolous appeal in
keeping with VA regulations.
To help a veteran make the most informed decision regarding
the merits of an appeal, the VA should provide improved case-
specific notice of the initial rating decision.
Mr. Chairman, we would like to thank you once again for
allowing us to address this truly important issue, and we look
forward to working with you in the 114th Congress.
I would be pleased to take questions.
[The prepared statement of Ms. Rauber appears in the
Appendix]
Mr. Abraham. Thank you, Ms. Rauber. We are going to take a
recess and go vote. We will be right back. Mr. Varela, you can
continue for 5 minutes, please.
STATEMENT OF PAUL R. VARELA
Mr. Varela. Good afternoon, Chairman Abraham, Ranking
Member Titus, and members of this subcommittee. DAV appreciates
being invited to testify today to discuss the challenges facing
the 360,000-plus veterans, dependents, and survivors with
pending appeals. Over 95 percent of these pending appeals
pertain to disability compensation benefits. Our written
testimony today provides the subcommittee with a number of
recommendations; however, my oral statement will focus on just
a few.
First, VBA and the Board require adequate resources to
process appeals. While, this is not the only solution, it is
certainly part of it. It is estimated that VBA's total appeals
inventory is roughly 360,000, of which roughly 65,000 are
within the jurisdiction of the Board, and roughly 32,000 of
these appeals are within the Board's physical possession. It is
no understatement to say the appeals inventory is too large and
this number continues to climb every day.
The fact that appeals keep rising suggests a mismatch in
manpower needed to process the appeals at both the Board and
regional office level. Also contributing to the growth of
appeals has been VBA's reliance on the appellate workforce to
process claims for disability compensation. VBA also relies on
the appellate workforce in order to meet their 2015 goals of no
claim pending over 125 days with 98 percent accuracy. This
practice diverts personnel to focus on claims processing. VBA
utilizes all available resources to achieve their 2015 goal,
which contributed to a drastic increase in pending appeals.
Second, VBA's Decision Review Officer Program must be
strengthened as it is one of the most critical and
indispensable procedures available to appellants within the
current appeals processing model. While an appellant elects the
DRO option, it affords the option to resolve issues locally at
the regional office level. For those appellants represented by
DAV, our national service officers have direct access to
decision review officers and often work with them to identify
potential solutions to resolve appeals.
Given the critical nature of the DRO process, it must be
strengthened and resourced adequately. Furthermore, the
appellate workforce must focus their efforts on the appeal
inventory and not repurpose to work claim-related initiatives.
Unfortunately, VBA traded one backlog for another due to their
all-hands-on-deck approach to realize the 2015 goals.
Third, Congress, VA, and stakeholders must look at
innovative reforms to improve the appeals process. One
innovation has become known as the fully-developed appeals
pilot program. There is no one solution to remedy the problems
facing veterans, dependents, and survivors within the appeals
process. DAV, working together with Congress, stakeholders,
VBA, and the Board believe that a good solution exists to offer
relief for some with appeals. The FDA pilot program is meant to
share some of the similarities and build upon the successes of
the fully-developed claims program.
The FDA pilot would offer potential appellants a third
option if they choose to file an appeal. They could choose the
traditional appeals process. They could choose the decision
review officer review process, or the FDA process. In the pilot
FDA, an appellant would elect to forego several procedural
steps within the current standard appeal processing model.
Some components of an FDA election trades the issuance of a
statement of the case and hearings for quicker review of the
record by the Board, allows an appellant to supply any
additional evidence at the time of the election, allows for an
opt-out option at any time up to the Board's ruling on the
appeal, would preserve all due-process rights under the current
appeal processing model if removed from the FDA, and has the
potential to save roughly 1,000 days of appeal processing time.
An FDA election is not for everyone. It is not the cure-all
to end-all. It gives some appellants another option by offering
a safe bypass around some regional office processing
requirements. It not only benefits veterans, their dependents
and survivors directly by saving them up to 1,000 days of
processing time, but would also relieve some of the pressure at
the regional office level by diverting FDAs directly to the
Board.
The FDA is still imperfect, but we continue to reach out to
Congress and other stakeholders to assure that we arrive at a
balanced, reasonable, and safe conclusion. We do want to
acknowledge the efforts of Congressman O'Rourke, Congressman
Cook, and their staffs for their work in the 113th Congress on
the Express Appeals Act, which shares many similarities with
the FDA proposal.
Finally, we also want to thank the subcommittee and your
staffs for the willingness to listen to our input,
recommendations, and concerns, and look forward to working
together with you to approve the appeals process, for veterans,
their dependents, and survivors, now and into the future.
Mr. Chairman, Ranking Member Titus, and members of this
subcommittee, thank you for allowing DAV to testify at today's
hearing. I am prepared to answer any questions you or the
subcommittee may have.
[The prepared statement of Mr. Varela appears in the
Appendix]
Mr. Abraham. Thank you, Mr. Varela.
Mr. Vale from the Vietnam Veterans of America. 5 minutes,
please.
STATEMENT OF JIM VALE
Mr. Vale. Good afternoon, Chairman Abraham, Ranking Member
Titus, and distinguished members of the subcommittee. Vietnam
Veterans of America thanks you for the opportunity to present
our views today. The real question that should be asked is why
would we keep a claims system going that is wrong 70 percent of
the time? VA-arranged decisions contain too many errors and
Board decisions are too inconsistent. Any lasting solution
needs to address these problems.
It is a well-established principle that VA's mission is to
provide benefits to veterans and their families in a non-
adversarial, pro-claimant system. When Congress enacted
judicial review for veterans' claims in 1988, it did so with
the clear intent to ensure a beneficial, non-adversarial system
of veterans' benefits. We support modernizing the VA system so
that all veterans receive more timely and accurate adjudication
of their claims and appeals. And we support improving the
efficiency of the claims adjudication and appeals process.
Nonetheless, these changes cannot come at the expense of
abandoning due process and other major aspects of the pro-
claimant system designed by Congress.
VA's motto is ``To care for him who shall have borne the
battle and for his widow and his orphan.'' In practice,
however, it appears the mission for some VA bureaucrats is to
limit the government's liability to our Nation's veterans by
formalizing the claims and appeals process to the point where
benefits are unfairly restricted. As General Bradley, VA's
first administrator, said in 1946, ``We are dealing with
veterans, not procedures; with their problems, not ours.
Veterans should not have to give up any of their rights in
order for VA to process their claims and appeals more quickly.
In the past, some VBA executives have even gone as far as to
suggest reducing the notice of disagreement period from 1 year
to just 60 days, change the standard review at the Board from
de novo to appellate review, close the record at the Board and
eliminate all decision review officer positions. Yet, none of
these suggestions actually benefits veterans, but it does make
the VA's job easier.
Vietnam Veterans of America has put forth eleven
suggestions in our testimony that will move forward to fixing
the VA system. You each have a copy of those items. The crutch
of the problem here is VA has an inadequate number of staff to
deal with its enormous backlog of claims and appeals and they
work in a flawed work credit system that favors quality over
quantity. Therefore, we suggest fixing the work credit system.
BVA's supervisors and employees need to stop gaming the
work credit system. It shouldn't be easier and quicker to deny
a claim than to grant one. VA still has to fulfill its
statutory duty to assist. There should be no work credit
awarded for taking shortcuts. If a claim is denied, no work
credit should be awarded until the duty to assist is fulfilled.
Next, VA should increase the number of staff. VBA needs
more raters and DROs, and the Board of Veterans' Appeals needs
more veteran law judges. For example, let's look at the Waco
regional office. They only have eight DROs, yet they have over
18,700 appeals. That is 2,300 appeals per DRO. That is the
highest DRO workload in the country. Put in another way, they
have eight DROs trying to do the work of 30. The national
average is 640 appeals per DRO.
Mr. Chairman, would it surprise you that Waco makes up 15
to 20 percent of all of our appeals at the Board of Veterans'
Appeals? The board has 65 veteran law judges. In contrast, the
Social Security Administration has over 500. Clearly, the Board
needs more veteran law judges as its appeals backlog continues
to climb. An even better solution is a round table discussion
or discussions among VSOs, members of this committee, and VA
representatives to resolve these issues.
In closing, the war against Japan lasted 1,347 days. In
2013, it took VA an average of 1,603 days to issue a final
agency decision on remanded veteran appeals. Mr. Chairman, the
appeal should not last longer than the largest war our nation
has ever fought.
Thank you for the opportunity to present our views today,
and I should be glad to answer any questions you may have.
[The prepared statement of Mr. Vale appears in the
Appendix]
Mr. Abraham. Thank you, Mr. Vale. I will agree with that
statement that you made about the appeals taking longer than
the war.
I will begin the questioning and this will be addressed to
each of you. What I am hearing from the previous panel and
certainly this panel, whether it is the AMC spot, the BVA, at
each step of the process, there seems to be a log jam. Certain
of you see it in one spot, certain in others, where the primary
problem is, but evidently every step of the ladder is a major
stepping in hindrance.
So my question is to each of you--I will start with the
organizations: Give me, we will say two of your solutions that
you would implement now to help get this ball rolling very
quickly.
Mr. Varela. I will take that question.
Mr. Abraham. And we want a brief description from every one
of them, just a minute.
Mr. Varela. Okay. All the way from the Board of Veterans'
Appeals to the Appeals Management Center to every regional
office, not only do they require the resources, which is
manpower, to do the lifting, the heavy lifting right now, they
also need to be focused on appellate work. When you divert the
appellate workforce, which is marginal at best, to address all
the appeals that are pending, what can we expect? We can expect
a spike and an increase in the inventory. To constantly move
them around and to constantly shift them around, we ignore the
appeals, and that is just very harmful and detrimental to those
in the pipeline.
The other would be to continue working on the FDA proposal,
which has been mentioned several times during our discussion,
with Congress bipartisan support and stakeholder input to
insure that we arrive at a good and safe conclusion on that
proposal.
Mr. Abraham. Ms. Rauber.
Ms. Rauber. I think we would agree to continue to work
towards the fully-developed appeals process, and I also think
the other thing is really getting down to figuring out a way
for the Appeals Management Center's feet to be held to the fire
in enforcing the orders of the Board, because we are just
seeing too many cases that come back two, three, four times
that we are briefing and presenting to the Board where the AMC
has not complied with what the Board is telling them to do.
Mr. Abraham. Mr. Hearn.
Mr. Hearn. I think that there is an interesting point.
Repeatedly, VA will say that a certain percentage of claims are
appealed, and they will use that as kind of their focus point.
And it is true, but you have to remember, those are just a
certain percentage of claims that a veteran elects to appeal.
That doesn't necessarily reflect the level of quality of
adjudication. If you look at the Appeals Management Center,
where all of these claims are subject to Board review following
their adjudication, you see that it doesn't stand up to the
fire, that more and more of these claims are remanded.
Now, if these raters are trained by the same people that
are being trained by--of the raters out in the field, then it
only stands to reason that you have got a bigger issue here
than you would like. So the first thing is, that you need to
make sure that the proper level of development is occurring at
the regional office because this will stave off the need for
the appeals. And until you can accomplish that, I think we are
just going to be chasing our tails, is really what happens.
The other thing is to get rid of this work credit system.
Because, going back to high school economics, I remember the
teacher said, ``people respond to incentives predictably.''
Well, if you have created a work credit system where you are
focusing on quantity versus quality then it is only natural
that you are going to focus on pumping out as many
adjudications as possible and not necessarily doing it in the
most accurate manner.
Mr. Abraham. Thank you.
Mr. Manar.
Mr. Manar. As I mentioned in my testimony, Secretary
Shinseki, with the best of intentions, established goals which,
at least initially and in informal conversations, he
acknowledged were goals that were probably not achievable but
certainly would help focus the Veterans Benefits Administration
to begin to work more and more disability claims.
However, over the years, those goals became set in concrete
and VBA only talks about its backlog, its workload in terms of
disability claims, not the appeals, not the dependency claims
that 4 years ago sat at 40,000 pending at any one time. Today,
there are over 200,000 pending at any one time, simply because
they have changed a work process to allow them to process
disability claims more quickly. Everything they have done has
been worshipping at the feet of this God of these twin goals.
As I said, declare victory. Let's move on from that. Let's work
on all the work.
Resources, I agree. Both the BVA and VBA need to be
appropriately resourced for the work that they have got today.
I understand that it costs money, but at the same time,
Congress can deal with reduced workloads and deal with the
staffing issues in the outyears. The problem is now, and you
can begin to solve it by throwing--I hate to say that, but
throwing more people at the problem.
The other thing is the quality of decisions. Many veterans
appeal because they don't understand what was decided. They are
not told that they are missing one piece of evidence that could
make the difference between getting the benefit they seek and
not, and as a consequence, they appeal because they are looking
for more information, or perhaps somebody who is a little bit
friendlier who can grant where it has been previously denied.
Now, many of these appellants learn through the long,
arduous appeals process what was missing. But if they had that
information at the beginning, then fewer of them would appeal.
They would simply go out and get that piece of evidence they
need. So those are the three things that I think are important.
Thank you.
Mr. Abraham. Thank you.
Mr. Vale.
Mr. Vale. Mr. Chairman, the VA never seems to have enough
time to do the job right the first time, but has plenty of time
to do the job wrong over and over again. With inadequate
resources, VA is having to rob Peter to pay Paul. Veterans'
benefits are a cost to war, and VA needs more resources because
of the mismatch between supply and demand. The VA needs more
staff to accomplish its mission. And also, the work credit
system needs to be fixed. We always hear about raters being
fired for not meeting their quotas, but we never heard of a
rater being fired for poor quality. And so you have an agency
that is underfunded with the work credit system that
incentivizes quantity over quality and that needs to be
stopped.
And lastly, something else that would be, as far as the
appeals, it is best to prevent an appeal. It is best to resolve
at the lowest level possible. And as a service officer, I have
prevented a lot of appeals at the regional office by being able
to go directly to the rater, correct the problem without even
having to go into the appeals process. And I am concerned that
is going to be taken away from us with a national work queue,
which is in my statement.
Thank you.
Mr. Abraham. All right. Thank you, all. You guys are down
in the trenches and you understand or know where the problems
lie, so that is why I asked the question. Thank you very much.
Ms. Titus.
Ms. Titus. Thank you. As I listen to you, I have heard Ms.
Boyd Rauber say we need a pilot program for expedited appeals;
Mr. Varela talked about the need to develop the full FDA; all
of you say we need more staff and resources, hopefully those
300 people will help a little bit; and all of you say we need
to reward staff for quality and not just quantity.
I think I agree with all of that. I think those are good
recommendations, and I want to work with you on them because I
think they fit right in with the proposal I made at the very
beginning that we need a serious commission to come with us,
with these things spelled out, showing how we can implement
them so this committee can then take action and not just keep
talking.
And so I look forward to working with you to see if we
can't meld all these things and come with a hard set of
specific recommendations so we can move forward. And I
appreciate it.
Thank you, Mr. Chairman.
Mr. Abraham. I am going to go back to a second round of
questions, just you and I, it looks like.
This goes back to each member of the panel here. Tell me
whether or not, explain to the committee whether you believe
that a veteran who receives an initial decision by the VA is
provided with adequate information to fully understand the
decision made by the VA. And therefore may knowledgeably decide
whether or not to file an appeal. And I think some of you
actually answered this but I want to hit it one more time. Just
briefly. Time is short. But give me a good answer, a fair, an
honest answer.
Mr. Manar. I have been fortunate, with some of my friends
on our legislative staff, to meet with committee staff members
over the last couple of months, and one of the things that was
mentioned at one of these earlier meetings was that your staff
had just come back from a regional office when they looked at
letters to veterans about the decisions in their cases and they
were incomprehensible.
Now, there are some letters that VA pumps out through this
simplified notification letter process that are numbers-driven
and can be understood; but where any kind of analysis of the
evidence is required, any kind of discussion, it is largely
absent. And it has consequences. Claimants just don't know the
reason why the decision was being made in their case. The
reason could have been perfectly valid but they are not being
told what it is.
Mr. Abraham. Mr. Hearn.
Mr. Hearn. Mr. Manar, he hit the nail on the head. The
problem with the VA letters is it doesn't explain exactly what
is going on. Veterans do not realize the three criteria to meet
service connection. They don't realize you need an incident in
service, current diagnosis, and a nexus statement linking the
current condition to the incident. And so if you deny it, and
nobody is talking about why exactly it is being denied or the
letter doesn't clearly describe that.
And then to enter this fully-developed appeals process, you
are kind of going down a dangerous path, that until VA provides
a proper letter of notification, we are not doing any veterans
any favors because they don't understand exactly what they are
appealing. It would be the equivalent if you were in second
grade and you were taking a test on fractions, never taught
about fractions and then you fail the test and the next day you
take fractions again, nobody taught you about fractions and you
fail it again. Well, there is no wonder why you fail them,
because you were never being taught.
So you need to understand exactly what is going on here,
and until that issue is addressed then I am afraid we are just
going to keep going back and going through this cycle all over
again.
Mr. Abraham. Ms. Rauber.
Ms. Rauber. And I think that is something that all of us
have discussed in the various working group meetings that they
have had, that there definitely is a need for more case-
specific notice for a veteran, because as the others have said,
you know, a veteran not only doesn't understand what the basis
might be for an appeal, but he or she also wouldn't understand
if maybe there is not a basis for an appeal. And I think for
them to truly understand what the right road is to go down,
they need to have case-specific notice.
Mr. Abraham. Mr. Varela.
Mr. Varela. Dr. Abraham, DAV and our independent budget
partners, since the inception of the simplified notification
letters, which is really what we are talking about today, have
taken issue with those letters. And we believe that they need
to be improved. There is certainly room for improvement there.
What we would really like to see is VBA sit down with us in a
working group and listen to what we have to say, take what we
have to say to heart and listen to our recommendations to
hopefully, without legislation, improve these letters.
To legislate better letter writing is going to be very
difficult, and then to legislate it in a way that is
understandable for the one-point-something million claimants
that are filing claims that is going to be even more difficult,
that everybody has that same level of understanding. We agree,
they need to be improved, and we really want to work with VBA
to see those improvements come to fruition.
Mr. Abraham. Mr. Vale.
Mr. Vale. Mr. Chairman, the simplified notification letter
does not provide an adequate reasoning basis for a veteran to
make a decision. And when they presented this to us, we told
them this is a bad idea. The abbreviation for simplified
notification level is SNL, similar to Saturday Night Live, but
we told them it is still not ready for prime time. It doesn't
provide an adequate reasoning basis. And on top of this, now
they have introduced this new NOD form and they are calling
veterans, if you want help with your appeal, check the box here
and some VA will call you. And also they ask the veteran to ask
what they think the percentage disability should be and we are
opposed to that. But again, the simplified notification letters
are inadequate, and they need to be improved.
Mr. Abraham. Okay. Thank you.
Ms. Titus, do you have anything else?
Ms. Titus. I would just say as you work to improve the
letters sent to veterans, be sure that there is an element of
standardization because we have seen one region vary from
another quite often. We want to be sure that everybody improves
the letter writing, not just one particular office or a couple
here, and a couple there.
Mr. Abraham. Well, we certainly thank you for helping our
veterans. Continue to do so, please. You are excused.
We will pause just for a minute while we seat this third
panel.
Welcome, gentlemen. So we have Mr. Barton Stichman of the
National Veterans Legal Service Program; and Mr. Kenneth
Carpenter of the National Organization of Veterans' Advocates.
Mr. Stichman, you are first recognized for 5 minutes, sir.
STATEMENT OF BARTON F. STICHMAN
Mr. Stichman. Thank you, Mr. Chairman, ranking member, and
other members of this committee for the opportunity for the
National Veterans Legal Services Program to address the
appellate claims adjudication process. VA can do much to
eliminate the disfunction that currently exists in the
appellate claims adjudication system, but Congress can and
should play a role in eliminating the disfunction that
currently exists. NVLSP urges Congress to adopt five
legislative solutions, which I think meet the answer to the
questions that the chairman asked the last panel.
First, authorize the BVA to develop evidence itself without
having to remand to the AMC or regional office. 15 years ago,
then-Secretary of Veterans' Affairs, Anthony Principi, decided
a partial solution to the hamster wheel phenomenon was to amend
VA regulations to allow the BVA to develop additional evidence
itself without remanding to the RO in a case in which the Board
determined that a final decision could not be issued because
additional development was necessary.
Forcing the BVA to remand to the AMC or the local ROs
lengthens the adjudicatory process because the BVA does not
have direct authority over the AMC and RO, meaning the BVA
cannot control whether the AMC or RO provides expeditious
treatment or properly complies with the remand instructions.
Allowing BVA development without a remand to the AMC or RO
further streamlines the appellate process by eliminating the
need for the RO or AMC to review the record and prepare a
written supplemental statement of the case before the case is
returned to the BVA for another decision.
Second, provide the veterans organizations with the right
to petition the VA General Counsel for a binding precedent
opinion on the proper interpretation of a statute or
regulation. This would address the lack of clear rules and
precedents that burden the system now. By providing
stakeholders, the veteran service organization, with the right
to petition the VAGC to adopt a particular interpretation of
the statutes of regulations that are supported by the
petitioning VSO, the GC will be required to issue an opinion
binding on the ROs and the BVA. Currently, the VA General
Counsel has the authority to issue these binding precedent
opinions on its own, but this authority is seldom utilized.
Three, authorize the Court of Appeals for Veterans Claims
to certify a case as a class action on behalf of similarly-
situated VA claimants, require the VA to put a moratorium on
the claims of all similarly-situated claimants while the case
in court is pending; and once the court finally decides the
case, require the VA to apply the decision to all pending
claims that were subject to the moratorium. This streamlines
the adjudicatory process for similarly-situated cases.
Four, prohibit the regional offices and the BVA in a case
in which there is positive evidence supporting the award of
benefits from developing negative evidence against the claim
unless the RO or BVA first explains in writing why the existing
evidence is not sufficient to award benefits.
One reason for the existence of the hamster wheel
phenomenon is that in a case in which the veteran submits
adequate positive evidence in support of a claim, the BVA, or
even the RO, sometimes does not simply award the benefits
sought. Instead, the agency extends the life of the claim by
remanding to obtain yet another medical opinion from a VHA
physician. Veterans advocates call this longstanding VA
practice developing to deny. In addition to fostering the
hamster wheel phenomenon, the practice is inconsistent with the
pro-claimant adjudicatory process and the statutory benefit-of-
the-doubt rule.
Five, require the VBA to change its work credit system for
VA adjudicators so that raters do not get work credit for
denying a claim without first obtaining the evidence needed to
comply with the VA duty to assist.
I see my time is up, and I will be happy to answer any
questions you may have.
[The prepared statement of Mr. Stichman appears in the
Appendix]
Mr. Abraham. Thank you, Mr. Stichman. Mr. Carpenter, you
have 5 minutes there.
STATEMENT OF KENNETH M. CARPENTER
Mr. Carpenter. Thank you, Mr. Chairman. The National
Organization of Veterans Advocates wants to thank this
committee for offering us this opportunity to offer testimony
on these very important issues. I have been assisting veterans
and their families with VA appeals for more than 30 years. I
began doing appeals prior to judicial review. And prior to
judicial review, although the appeal process was lengthy, it
is, in retrospect, reasonable by comparison to what has
occurred since judicial review.
It is easy to blame judicial review, but judicial review is
not responsible for the backlog in the largely-accumulated
delays in processing appeals. NOVA has three specific
recommendations: The first recommendation would require a major
statutory change; the second and third recommendations, we do
not believe would require a major statutory change, but we do
believe it would be significant.
First, NOVA recommends the amending of 7105, which is the
statutory provision that concerns the appeal process. We
recommend the elimination of both the statement of case and the
substantive appeal. These requirements are simply no longer
needed. They had merit and reason in the prior-to-judicial-
review environment. The elimination of these two currently
required processes would cut by significant time period the
delays inherent in this process. The requirement for a
statement of case and a substantive appeal, in fact, now
contribute to the delays, as is verified by the statistics.
Second, if the committee and Congress are not willing to
amend 7105 with such a major change, 7105 at least needs to be
amended to explicitly require the certification of an appeal
and the transfer of that appeal to the Board within 60 days.
The chairman mentioned in earlier questioning the observation
that the VA has very few, if any, time limits imposed upon them
by Congress. This is an implementation, this is a
recommendation that will impose a specific timeframe.
The current delays in getting appeals physically from the
regional offices to the Board is taking too long because the
regional office controls the certification of the appeal.
Congress needs to tell the regional offices by statute, in no
uncertain terms, that within 60 days of the receipt of the
substantive appeal, that the appeal will be certified and it
will be transferred to the Board.
Now, one of the potential consequences of this is that
currently of the 70,000 appeals that the Board has, only half
of them are physically before the Board, because the other half
have not been transferred to the Board. This is going to put
the burden of the appeal process where it belongs, with the
appeal. The agency, by not certifying appeals, by not
physically moving those claims to the Board, is contributing to
this backlog, again, as the statistics clearly demonstrate.
Third and finally, there are two statutory provisions that
deal with remands and use ambiguous and unclear language for
the handling of a remand from both court and the Board. And the
statute uses the term ``expeditiously handled.'' The fact is,
is unless this Congress by statute tells the agency what the
expectation is, expeditious treatment is going to remain
ambiguous. We recommend a 6-month action report if the remand
has not been resolved within that time period. And after that
date that written explanations every 6 months be provided for
why there has been no resolution.
The removal of the ambiguity and the imposition of specific
time frames, we believe, will clearly assist the problems that
exist with remands because there is no clarity of Congress'
expectation as to what the timeframe is to get a remand
resolved. And if you don't tell them, then you have seen what
is going to happen. They are simply going to be dealt with as
the VA chooses to deal with them, which is not acceptable.
[The prepared statement of Mr. Carpenter appears in the
Appendix]
Mr. Abraham. Thank you, Mr. Carpenter.
Ms. Titus. Mr. Chairman, I am afraid I have to leave, but I
would ask unanimous consent to allow you to continue the
questioning, and I will get the information on my return.
Mr. Abraham. Thank you. Hearing no objection, so ordered.
Thank you so much for being here and for your very insightful
questioning.
Ms. Titus. Thank you, Mr. Chairman.
Mr. Abraham. We appreciate you very much.
Mr. Stichman, in your written testimony, you noted that in
the most recent version of the annual report of the chairman of
the BVA, the average days pending between the fine of a notice
of disagreement, which begins the appeals process, I
understand, and an initial decision of the BVA was 3 years and
5 months. However, you state that the time it takes for a final
decision to be made on a claim is often much, much longer.
Explain the difference there, please, sir.
Mr. Stichman. The 3 years and 5 months is the average
according to the fiscal year 2013 report by the BVA chairman
from the filing of the NOD to the Board decision. But as we
have heard today, the Board decision often does not finally
decide the claim. 45 percent of those appeals result in a
remand, so the claim is going to continue on from there. It
takes another year at the AMC, more years if it is remanded to
the regional office.
And then the AMC or regional office has to review the
evidence obtained and prepare a new decision and then 75
percent of them, which aren't granted, are returned to the
Board, then the Board has to re-decide the case. The board may
remand again, we have heard, because the regional office or the
AMC didn't fully comply with the instructions of the Board.
That is why we recommend that the BVA be in charge of
development as Secretary Principi envisioned 15 years ago, so
the BVA can ensure right away that the remand instructions are
followed.
Mr. Abraham. Thank you.
Mr. Carpenter, this question will be for you, and thank you
for your testimony. You have argued that the appeals system is
struggling due to the high volume of cases remanded by the
Board to the AMC and RO, which, as we just said, has been
consistently around 40 percent for decades now. As you note,
the Board is essentially required to remand the appeal if the
case is not fully and sympathetically developed as required by
Congress intent and enacted in the judicial review in 1988.
I do find it troubling that the VA in 40 percent of the
cases does not meet Congress' intent regarding the treatment of
veterans and their benefits. Could you discuss this a little
further, as far as the arguments concerned?
Mr. Carpenter. There are really two components: The first,
and it was mentioned in the earlier panel by the Veterans
Service Organization, primarily by Vietnam Veterans of America,
that the claim is simply not fully and sympathetically
developed to its optimum before the VA makes a decision on the
merits.
Mr. Abraham. So does that go back to the initial VA claim
at the regional office?
Mr. Carpenter. Absolutely, and that is where the problem
begins. The decision gets made and the statistics clearly
demonstrate that the claim was not fully developed because it
has to be sent back for another exam or for the obtaining of
other records for the obtaining of additional evidence from
other governmental entities and all of that should have been
done before the decision was made in the first place. That is
the first part of it.
The second part of what we have recommended is that,
frankly, you have to put some teeth into the remand statute.
Expeditious treatment is, frankly, nonspecific. No one at the
VA has ever defined what that means. Therefore, they do it when
they do it. Congress needs to clarify that they mean
expeditious treatment is something within a reasonable time
that you will specify. If you specify that time, then that
gives a target for them to work towards and they currently do
not have a target.
The clock doesn't start running on them, and veterans and
their representatives are simply helpless because there isn't a
remedy available judicially except to wait for that decision,
because we can't go back to court until a sufficient amount of
time, which has been interpreted in the court's decisions
before the veterans' court to be at least a year waiting on
that development. And there shouldn't be a full year granted.
The chairman made a reference to the sanctions that were
taken earlier against the Secretary, and what happened in that
case was is that the VA simply lost it. If they don't have a
specific tracking mechanism by a specific target date by
statute, then that is what is going to happen in this clearly
overloaded system is that cases are going to get lost.
Mr. Abraham. Thank you, gentlemen. That is going to be the
end of questioning. You are excused. We certainly appreciate
your presence here.
So the testimony today heard, it raises many additional
questions, and I look forward to addressing these in future
meetings, certainly addressing it with the Department itself.
My colleagues on the committee, we will get together and talk
it out very frankly, and the stakeholders who took the time to
present their concern today and to those who assist the
veterans on the veterans day-to-day, a very heartfelt thanks
from me and, I assure you, the rest of the committee members.
So, again, thanks everybody for being here. 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 5 legislative days to revise and extend
their remarks and to include extraneous material. Hearing no
objection, so ordered. We are adjourned.
[Whereupon, at 2:08 p.m., the subcommittee was adjourned.]
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