[Senate Hearing 117-146]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-146

                     SUPPORTING DISABLED VETERANS:
                     THE STATE OF CLAIMS PROCESSING
                       DURING AND AFTER COVID	19

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                                HEARING

                               BEFORE THE

                     COMMITTEE ON VETERANS' AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 12, 2021

                               __________

       Printed for the use of the Committee on Veterans' Affairs
       
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        Available via the World Wide Web: http://www.govinfo.gov
        
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                     COMMITTEE ON VETERANS' AFFAIRS

                     Jon Tester, Montana, Chairman
Patty Murray, Washington             Jerry Moran, Kansas, Ranking 
Bernard Sanders, Vermont                 Member
Sherrod Brown, Ohio                  John Boozman, Arkansas
Richard Blumenthal, Connecticut      Bill Cassidy, Louisiana
Mazie K. Hirono, Hawaii              Mike Rounds, South Dakota
Joe Manchin III, West Virginia       Thom Tillis, North Carolina
Kyrsten Sinema, Arizona              Dan Sullivan, Alaska
Margaret Wood Hassan, New Hampshire  Marsha Blackburn, Tennessee
                                     Kevin Cramer, North Dakota
                                     Tommy Tuberville, Alabama
                      Tony McClain, Staff Director
                 Jon Towers, Republican Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                        Wednesday, May 12, 2021
                                
                                SENATORS

                                                                   Page
Tester, Hon. Jon, Chairman, U.S. Senator from Montana............     1
Moran, Hon. Jerry, Ranking Member, U.S. Senator from Kansas......     2
Boozman, Hon. John, U.S. Senator from Arkansas...................    10
Sinema, Hon. Kyrsten, U.S. Senator from Arizona..................    21

                               WITNESSES
                               Panel One

Thomas J. Murphy, Acting Under Secretary for Benefits, Veterans 
  Benefits Administration, Department of Veterans Affairs; 
  Accompanied By Willie C. Clark, Sr., Deputy Under Secretary for 
  Field Operations, Veterans Benefits Administration and Toby T. 
  Mathew, Chief Officer, Office of Disability and Medical 
  Assessment, Veterans Health Administration.....................     3

                               Panel Two

Elizabeth Curda, Director, Education, Workforce and Income 
  Security, Government Accountability Office.....................    13
Ryan Gallucci, Director, National Veterans Service, Veterans of 
  Foreign Wars of The United States..............................    14
Shane Liermann, Deputy National Legislative Director, Disabled 
  American Veterans..............................................    16
Carmen McGinnis, National Service Officer, Disabled American 
  Veterans.......................................................    18

                     Witnesses Prepared Statements

Thomas J. Murphy, Acting Under Secretary for Benefits Veterans 
  Benefits Administration, Department of Veterans Affairs........    26
Elizabeth Curda, Director, Education, Workforce and Income 
  Security, Government Accountability Office.....................    33
Ryan Gallucci, Director, National Veterans Service, Veterans of 
  Foreign Wars of the United States..............................    46
Shane L. Liermann, Deputy National Legislative Director of the 
  Disabled American Veterans.....................................    53
Carmen McGinnis, National Service Officer, Disabled American 
  Veterans.......................................................    64

                        Questions for the Record

Questions for the Record submitted by
  Hon. Sanders...................................................    70
  Hon. Brown.....................................................    78
  Hon. Hirono....................................................    80
  Hon. Sinema....................................................    83
  Hon. Blackburn.................................................    86

                       Statements for the Record

American Federation of Government Employees, AFL-CIO.............    90
National Association of County Veteran Service Officers..........    98
Paralyzed Veterans of America....................................   102
Marty Callaghan, Deputy Director, Veterans Affairs & 
  Rehabilitation Division, The American Legion...................   106
Military Sexual Trauma Resources.................................   111

 
                     SUPPORTING DISABLED VETERANS:
                     THE STATE OF CLAIMS PROCESSING
                       DURING AND AFTER COVID-19

                              ----------                              


                        WEDNESDAY, MAY 12, 2021

                                       U.S. Senate,
                            Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3 p.m., in room 
253, Dirksen Senate Office Building, Hon. Jon Tester, chairman 
of the Committee, presiding.
    Present: Tester, Brown, Sinema, Hassan, Moran, Boozman, 
Cassidy, Rounds, and Sullivan.

              OPENING STATEMENT OF CHAIRMAN TESTER

    Chairman Tester. I want to call this meeting to order, now 
that the Ranking Member is in the room. I would just say today 
has been a pretty screwed-up day, so I am going to apologize to 
the folks who are testifying right now, because we have got 
votes at 3:30, and Senator Moran and I will probably be handing 
the gavel off to one another to get through these votes 
together. But I want to tell you that this is, as with all of 
our hearings at the VA Committee, it is very important, so I 
want to say good afternoon. Thank you for being here today.
    Last year the VBA provided compensation to over 5 million 
disabled veterans and survivors. Unfortunately, COVID-19 has 
hampered VBA, leading to hundreds of thousands of backlogged 
claims.
    With the funds Congress provided in the American Rescue 
Plan, VA anticipates getting back to pre-COVID numbers by late 
next year. I am concerned, however, that next year is not soon 
enough for disabled veterans weathering the storm of this 
pandemic.
    I am also concerned that as VBA concentrates on speed, it 
risks sacrificing quality. Disabled veterans must have 
confidence that their claims will be fairly and accurately 
decided. Last year's removal of the 48-hour review period is an 
example of when VBA, when obsessed with speed, removed a 
veteran's ability to correct the error before a final decision 
was made. Now, look. Everybody appreciates quickness, but 
forcing vets to appeal errors makes them wait longer, and, 
quite frankly, it is a nonstarter.
    So when it comes to renewing VBA's focus on disabled 
veterans, we have got some work to do. GAO, for example, has 
consistently highlighted gaps in VBA's oversight of contract 
examiners. The quality of an exam can make or break a victim's 
claim. If VBA cannot guarantee the accuracy of contract 
examiners, well, quite frankly, then we probably should not be 
using them.
    The IG also found significant issues with how VBA processes 
specialty claims. If VBA cannot guarantee it fairly accounts 
for all the complexity of a disabled veteran's claim, then we 
need to take a look at the process and change it.
    Toxic exposure veterans exhibiting symptoms years after 
deployment are second-guessed. Veterans bearing invisible 
wounds from military sexual trauma are held to an impossibly 
high evidence standard. And VA must take the time to carefully 
account for all the circumstances surround a claim, instead of 
treating our warriors like widgets.
    In short, VBA must make the process more veteran-focused 
and less adversarial. I look forward to this hearing on how VBA 
can improve its practices so that our disabled veterans are 
better served, long after this pandemic.
    With that I will turn it over to you, Senator Moran.

               OPENING STATEMENT OF SENATOR MORAN

    Senator Moran. Chairman Tester, thank you. I am eager to 
hear from our witnesses today. Thank you for being here.
    VBA is often the first connection that veterans have with 
the Department of Veterans Affairs, as they transition out of 
the military, but it seems to me they are often overlooked, can 
be overlooked, when we take into account the mammoth health 
administration that has been providing health care to our 
disabled and ill veterans.
    Over the last 14-plus months, our country has faced 
unprecedented challenges due to the pandemic. The adversity 
provides an opportunity for us to evaluate vulnerabilities in 
our system, reflect on what has worked, and make improvements 
for the future.
    As we discuss VBA's pandemic response today, I want to hear 
what VA, and VBA specifically, learned throughout these 
unprecedented times and how we can continue some of the best 
practices to bring modern-day solutions and services to our 
veterans on an everyday basis.
    Mr. Murphy, today's hearing is an opportunity for you and 
your colleagues to discuss the work VBA is now conducting to 
address C&P backlog that has accrued due to COVID-19 
limitations, both through internal VHA exams and through 
contract medical disability exams. I know many of my colleagues 
are concerned with the quality of contract exams. Still, I want 
to discuss how they have assisted in the backlog over the years 
and how they will continue to assist in the backlog created by 
the pandemic.
    I want to thank the VBA and its employees for their ongoing 
work, whether it is the office or via teleworking, to get 
claims developed and adjudicated, such as ACE exams and 
telehealth exams, in innovative ways to do what is best for our 
veterans in an already stressful climate.
    I would also like to discuss GAO's findings that illuminate 
how claims associated with military sexual trauma, traumatic 
brain injury, and Gulf War illness are twice as likely to be 
returned to both VHA and the contractors for additional 
information before making a decision.
    Last, I look forward to hearing from the VFW and DAV who 
are here with us today and are the boots on the ground when it 
comes to assisting veterans in filing their claims. You all 
have seen first-hand some of the difficulties in claim filing 
during COVID, and the changes VBA has made to adapt to the 
pandemic.
    Chairman Tester, thank you. Thank you for holding the 
hearing. I look forward to working with you today and in the 
future, and I yield back.
    Chairman Tester. Senator Moran, thank you for your 
comments. Today's hearing is going to consist of two panels. In 
the first panel we are going to hear FBA on how it navigated 
COVID-19 challenges to process claims from disabled veterans, 
so I will get to that panel in a second.
    In the second panel, we will hear from Government 
Accountability Office and veteran service organizations about 
certain issues with the disability compensation process.
    But now back to the first panel. I want to introduce Thomas 
J. Murphy, Acting Under Secretary for Benefits, and with Under 
Secretary Murphy is Willie C. Clark, Sr., VBA Deputy Under 
Secretary for Field Operations, and Toby T. Mathew, the Veteran 
Health Administration's Chief Officer for the Office of 
Disability and Medical Assessment. Secretary Murphy, the floor 
is yours.

                            PANEL I

STATEMENT OF THOMAS J. MURPHY; ACCOMPANIED BY WILLIE C. CLARK, 
                    SR., AND TOBY T. MATHEW

    Mr. Murphy. Chairman Tester, Ranking Member Moran, and 
members of the Committee, thank you for the opportunity to 
testify today about the current State of the Veterans Benefits 
Administration, and in particular, our efforts to continue 
providing the benefits and services our veterans deserve----
    Chairman Tester. I need to get you to turn on the mic. I am 
sorry. And then I need to get you to start over.
    Mr. Murphy. Right from the top? Yes, sir.
    Chairman Tester. Yes. Thanks.
    Mr. Murphy. It was sounding so good there too. Chairman 
Tester, Ranking Member Moran, and members of the Committee, 
thank you for the opportunity to testify today about the 
current State of the Veterans Benefits Administration, and in 
particular, our efforts to continue providing the benefits and 
services our veterans deserve during the unprecedented COVID-19 
pandemic.
    Despite the challenges presented by the global pandemic, 
VBA has maintained its focus on serving veterans and their 
families. We continue to deliver benefits and services while 
working to establish our post-pandemic normal operations and to 
address the long-term challenges presented by COVID.
    I am pleased to report that during the pandemic, VBA has 
served and continues to serve more veterans and their families 
while improving the accuracy of completed disability claims. At 
the onset of the pandemic, VBA leveraged mass telework in order 
to minimize the exposure to both veterans and employees. Our 
longstanding commitment to IT modernization and our 
digitization efforts made the transition from office to home 
seamless.
    As you are aware, VBA suspended all in-person medical 
examinations to protect the safety and health of both VA 
employees and veterans. We revised claim processing procedures 
to allow veterans to wait for in-person examinations with the 
assurance that no final action, including a denial, will be 
taken on their claim until an in-person examination can be 
completed.
    These procedures are still in place today. Additionally, we 
completed as many virtual examinations as possible, utilizing 
telehealth technology and VA's acceptable clinical evidence 
process. VBA expanded the use of ACE and increased the number 
of eligible telehealth examination types from 19 to 34 
examinations.
    At the end of Fiscal Year 2020, VBA resumed in-person 
examinations nationwide, and earlier this Fiscal Year expanded 
the use of VHA in-person examinations. VBA and our partners 
continue to work closely to expand examination capacity and 
plan to return to normal working inventory levels of about 
140,000 examinations by the end of this fiscal year.
    We are working other actions to reduce the claims 
inventory. As you are aware, the pandemic also limited our 
ability to obtain Federal records, which are critical in 
deciding disability claims. VA proactively engaged in NARA for 
solutions to add addition shifts, including nights and 
weekends, to reduce the number of requests by 90 percent, and 
as a result, as of April 11, 2021, VBA is now under our pre-
pandemic working inventory level, 8,700 issue requests--it is 
about 2 days' working time for us.
    VBA will use part of the funding authorized by the American 
Rescue Plan to support improvements in claims processing and 
appeals, including expanding Federal record scanning to reduce 
claims processing delays resulting from paper requests 
maintained by NARA and other Federal records custodians.
    Not all the challenges we face are related to the pandemic. 
Under a recent court order, VBA must readjudicate over 62,000 
Blue Water Navy claims. These claims were added to the 
inventory in April. In addition, we are about to begin 
processing claims for the three new Agent Orange presumptive 
conditions mandated by Congress, of bladder cancer, 
Parkinsonism, and hypothyroidism. We have seen a slow decrease 
in the backlog over the last couple of months, but these new 
issues, and a continued rollover of claims currently in the 
inventory, will see a short-term spike in backlog this summer.
    Despite the additional employees and overtime funds we have 
provided, the backlog will hit a peak this August, when the 
remaining Blue Water Navy claims I talked about a moment ago 
roll over into the backlog. Then we will see a slow but steady 
decline, week over week, through the end of Fiscal Year 2022, 
where we will be at about 100,000 claims.
    VBA is keenly aware that not all claims are alike, and some 
claims, notably MST, require additional focus and handling in 
an accurate and compassionate manner. We have made sustainable 
improvements in MST claims processing, including eliminating 
the requirement for unnecessary phone calls that would 
retraumatize veterans, increased quality checks and improved 
training for MST claims processors.
    But there is more to do here. We are in the process of 
centralizing all MST claims into five regional offices, and 
will be done later this fiscal year. This centralization will 
deliver the higher-quality, more consistent decisions that are 
so important in these types of claims.
    Chairman Tester, Ranking Member Moran, this concludes my 
testimony, and I am happy to respond to any questions the 
Committee may have.
    Chairman Tester. I appreciate that. I am going to start out 
by asking you a question I just asked my staff member. What is 
the backlog today?
    Mr. Murphy. 191,700, as of this morning.
    Chairman Tester. And you expect it to peak in August, at 
what number?
    Mr. Murphy. We are not certain on that, sir. It should be 
somewhere in the 225,000 to 240,000 range, depending on how 
things go between now and the end of summer.
    Chairman Tester. Okay. And then you said it will decrease 
at the end of 2022, it will be at 100,000?
    Mr. Murphy. Yes, sir, that is correct.
    Chairman Tester. And so the question becomes, in your 
position, have you looked at any ways to get it reduced 
quicker?
    Mr. Murphy. Yes, sir. We are looking at ways. We are 
looking to leverage some technology, scanning of records, 
presenting evidence in different ways. We have digitized our 
entire world, and we are doing well with that but there are 
ways we can do better with it. So leveraging through some 
contracting, scanning, and indexing files.
    Then we have the biggest lift that we can get today is tied 
back to getting veterans to show up and get examinations. We 
are today sitting on 58,000 claims where veterans have opted 
not to show up, for safety reasons, and that is fine with us. 
But we are contacting those veterans, reaching out continually, 
saying, ``You have been immunized. Please come in and have your 
examinations.''
    Chairman Tester. And those numbers are going up with people 
seeking care right now, pretty dramatically.
    Mr. Murphy. Exactly.
    Chairman Tester. So I just want to give you an opportunity 
to highlight the work that you have done, because you have done 
some good work over the last year. And I do not want to be--you 
know, the pandemic has forced people to work in different ways, 
and VBA is no exception. The National Archives struggled to 
keep up with the demand for service records. Your team stepped 
in to help them. Under Secretary, could you tell us how VBA 
supported the National Archives to be able to deliver benefits 
to veterans more quickly?
    Mr. Murphy. Yes, sir. I would be happy to. The inventory we 
have at the National Archives was in that 9,000 to 10,000 range 
of awaiting records requests, and then the National Archives 
closed back last March and the inventory quickly grew. We got 
to the point where we were right around 100,000 claims. I sent 
Mr. Clark, sitting right here to my left, over to the National 
Archives to have some conversations with them, and they were 
running a straight Monday-through-Friday operation with just 10 
percent people at that time.
    We had conversations with them, and instead of running 
straight shifts they switched to shorter shifts, 6 hours 
apiece, and ran two shifts a day. And then they added Saturdays 
and Sundays on top of that. We made an offer to them to 
transfer overtime funds through the appropriate channels to 
make it all legal, to do whatever we could to help them have 
access to. And as a result, over a couple of months process, we 
went from that close to 100,000 down to the working inventory 
that we had in the middle of April.
    So the fastest way for a veteran today to get your records 
is come to us, go through your service officer or come to us 
directly, and file a claim or get a records request. We are 
getting that turned around in just a couple of days. At the 
same time, we know that NARA is sitting on several hundred 
thousand records requests that come through other sources, but 
we have been prioritized because we are taking care of 
veterans.
    Chairman Tester. So as I pointed out in my opening 
Statement, VHA, when in-house examiners cannot meet the demand, 
they use contractors--VBA uses contractors, when VHA in-house 
examiners cannot meet demand. The GAO found that ``VBA has not 
fully applied sound planning practices to its increased use of 
contract disability medical examiners,'' and that is a quote. 
Coordinating between VHA and VBA sounds like something that 
requires sound planning practices. So, Under Secretary, who in 
VA works with VBA and VHA to assure that the right mix of 
contract and in-house examiners exists, over a fiscal year?
    Mr. Murphy. Mr. Dave McLenachen, who runs our medical exam 
contract on the VBA side, works with Toby, sitting to my left 
here, on the VHA side. They are run through a central 
distribution system and they are assigned where we have 
capacity. VHA tells us we have this capacity in these 
locations, our contractors tell us where their capacity is in 
those locations, and that work is distributed, regardless of 
VHA or VBA--excuse me, our contractors or VHA, where the 
capacity is to get the veteran in to get that examination as 
quick as possible.
    Chairman Tester. Okay. So, Secretary Murphy, for certain 
exams, like PTSD connected to military sexual trauma, be 
conducted by VHA professionals at VHA facilities where veterans 
can be immediately connected with the resources that they need?
    Mr. Murphy. I would not object to that being the case, but 
I do not see that it is a necessary step. I think the training 
program, the requirements, the credentialing that we have, the 
quality of the examination you can get from one of our contract 
providers is equivalent to what you can get in VHA. There may 
be other things that are more beneficial, that are more 
advantageous to the veteran if they were to have it in a VHA 
facility, such as other support requirements, but in terms of 
is it medically necessary for us to get a valid evaluation, the 
answer would be no.
    Chairman Tester. Okay. Senator Moran?
    Senator Moran. Chairman Tester, thank you. First of all, 
you raised the topic of the National Archives. I thought 
Secretary McDonough had a good idea to allow vaccines to be 
utilized at the National Archives to get their staff 
vaccinated, to get back to work to advance the cause of getting 
the records to VBA. The National Archives declined to do so.
    Senator Tester and I sent a letter. I am not suggesting 
that as a result of that letter they changed their mind, but 
they changed their mind. And I want to publicly indicate that 
it was a smart decision, a wise decision, and I appreciate the 
Archives doing what it can do to get its employees vaccinated 
so that veterans can benefit from the records that are now 
hopefully more available to them.
    Let me ask just a few questions, and maybe Senator Tester 
covered a bit of this, how VHA and VBA work together to develop 
short-and long-term strategy to identify exam workload needs 
and how to meet those needs through VHA and contract examiners. 
I am trying to figure out what is the plan into the future. 
What analysis have you done that puts you on a path to more 
speed and greater accuracy?
    Mr. Murphy. We do a forecast. For example, we are working 
on the 2023 budget now, 2024 budget. In order to come up with 
that budget number we have to start with what are the number of 
claims we have today, what are we going to have in 2022, what 
are we going to have in 2023, and that model tells us, this is 
the type of claim--and it is very complex modeling--what types 
of condition, what era of veteran are we talking about. And you 
break it down, World War II, Korea, Vietnam, all the way to the 
present date. All of that model is shared with VHA to say this 
is what we see coming in the door, demand from veterans, and 
VHA incorporates that into their planning, and it also drives 
their health care. You said a moment ago, Mr. Chairman, that we 
are the entry point. This is how you get in the VA.
    So we know they are coming. We share that with VHA. And 
with that comes a demand on what types of examinations we are 
going to need, because it all starts with a disability claim.
    Now back that up to how does that tie to medical 
examinations. The answer comes back to it is tied to capacity, 
where does VHA have capacity and where does the VBA have 
capacity with our contractors. And by the way, they are very 
curious about those same numbers, because it tells us what kind 
of work they are going to be seeing from us. And we are very 
specific on their performance indicators in terms of timeliness 
and quality. So they are very interested in those numbers as 
well.
    But I do want to point out one very important thing. We are 
in the middle of a pandemic, the back end of a pandemic 
hopefully, that is a 100-year event. And while it is a bad 
thing to have our backlog double, it has only doubled, based on 
what we had. And that includes us shutting down for 5 months. 
We have got to the point here, we have got a fairly quick 
recovery here. Our contractors are providing in excess of 45 
percent more exams per day than we were, and VHA has more than 
doubled the capacity of examinations they are doing.
    The point is this. Through leveraging what we have in VHA, 
and tie that with our contractors, we are able to quickly 
recover from this and get all of our veterans through in a 
fairly expeditious manner. It can never be fast enough--I get 
that--but it is going fairly well, and I am seeing very large 
increases week over week in the number of examinations we are 
doing.
    Senator Moran. Thank you. What do those numbers, that 
analysis, show? What are the predictions for volume?
    Mr. Murphy. You mean the volume for the number of 
examinations? I can tell you the number that I am working off 
of, which is a weekly average, rolling 7-day. I am looking for 
a number north of 45,000 examinations per week, just from the 
contractors and then VHA on top of that.
    Senator Moran. And demographics and other factors indicate 
in the future the demand for those exams is going to what?
    Mr. Murphy. It is going to increase as the claims continue 
to grow, year over year.
    Senator Moran. And the claims grow year over year, aside 
from the backlog they grow year over year because of what 
factors?
    Mr. Murphy. We are putting more veterans on our rolls, and 
then current conflict, where it is at today. As veterans age we 
know that they come back for increases, and new conditions get 
added to that. So we are seeing a growth, and it is actually 
playing out very accurately to what we were thinking.
    And if we had this hearing just a couple of years ago I 
would be talking about the 1.1 millions claims we just did, but 
today we are talking about the 1.5 million claims we are going 
to do this year, or the 1.6 million next year. And just to be 
sure those are very rough numbers, so please don't hold me to 
it--you said 1.6, please--but I am trying to illustrate a point 
to you that there is a continued growth. We know what it is. We 
know what area it is. We share that with our contractors and 
with VHA.
    Senator Moran. Part of that answer, that paragraph answer, 
was, I think, that the modeling is working. Your estimates turn 
out to be accurate?
    Mr. Murphy. Yes, sir. That is correct.
    Senator Moran. Okay. Last--well, I guess it is 2 weeks ago, 
not last week--two weeks ago we held a hearing, a legislative 
hearing here, to discuss bills pending before this Committee. 
One of those bills was the Ensuring Survivor Benefits During 
COVID-19 Act of 2021. VA testified in opposition to that bill. 
That bill would require the VA to seek a medical opinion in 
case of any veteran whose death certificate lists coronavirus 
as the cause of death but who had an underlying service-
connected disability, which was complicated, further 
complicated because of COVID-19.
    Here is my question. Would you agree that with an 
unprecedented pandemic like we have seen that there is a 
possibility that without legislative change, veteran surviving 
families would not receive the same benefit they would have 
received if they had died as a result of their underlying 
service-connected disability had COVID-19 not been a factor?
    Mr. Murphy. Senator, looking at this with a 30,000-foot 
view, meaning I do not know the details of the bill you are 
talking about----
    Senator Moran. Understood.
    Mr. Murphy [continuing]. and your Statement there today, I 
would say yes, I would agree with that, that the potential 
exists for that to happen. But again, the devil is in the 
details, and----
    Senator Moran. I am not asking you to endorse a bill.
    Mr. Murphy. Thank you. That is what I was trying to say.
    Senator Moran. Particularly one that the VA did not 
endorse. But, I mean, common sense or something tells us that 
there is a consequence. Are you doing anything to ameliorate 
the differences that could occur on what is a death by an 
underlying cause versus COVID-19?
    Mr. Murphy. Yes, we are, and I am having some brain fog 
here, because I just had a conversation on this very topic, and 
the death was COVID as a result of an underlying condition. So 
the COVID accelerated that person's passing, and you pass of 
whatever condition it is that you had, accelerated by COVID. 
That makes it service connected.
    So there is certainly, as things develop, as we get smarter 
about COVID and what it does to veterans, and the impact that 
it has, we are still in the very early stages of when do those 
COVID as a result of whatever condition. And just like we do 
with presumptives and others, I see a future where the two are 
connected, and it makes my process easier and better for 
veterans. So there is some opportunity for let's make this 
process better down the road.
    Senator Moran. Thank you, sir. Thank you, Mr. Secretary.
    Chairman Tester. So here is what we are going to do. 
Senator Boozman is on his way.
    Senator Moran. Okay.
    Chairman Tester. I do not want to shut Senator Boozman off 
of any of these panels, because he is a very active member of 
this Committee. So what I am going to do, unless you have more 
questions, and if you do you can continue to ask them, I am 
going to go into recess, because I have got to go vote in 
Commerce.
    Senator Moran. You are going to go vote in person?
    Chairman Tester. I have to, because of quorum needs. 
Otherwise I would not. So if you want I can put this into 
recess. If you are going to stay here you can take the gavel, 
call it back in for Boozman, and then----
    Senator Moran. Do we have any Senators waiting?
    Chairman Tester. I have none online. And it is kind of good 
of Boozman to come. Otherwise, you would have the easiest time 
of any panel ever in front of this Committee.
    Look. No, John Boozman is a thoughtful guy, and if he has 
questions we want to try to accommodate him. And then we have 
got votes at 3:30. I am going to try to get back here.
    Senator Moran. So my suggestion is that Senator Boozman, he 
arrives, gavels the meeting back in----
    Chairman Tester. Sure.
    Senator Moran [continuing]. I will go vote on the floor, 
get that first vote done----
    Chairman Tester. Perfect.
    Senator Moran [continuing]. and then come back while you 
are voting.
    Chairman Tester. You know, that is why you are the Ranking 
Member of this Committee.
    Senator Moran. It is why I should be the Chairman of this 
Committee.
    [Laughter.]
    Chairman Tester. Now come on. I did not go that far. By the 
way, just so you guys know, he was plotting against me out in 
the hall before I got here.
    Senator Moran. I really wasn't plotting against you.
    Chairman Tester. So we will go into recess. Smoke them if 
you have got them, guys.
    [Recess.]

                      SENATOR JOHN BOOZMAN

    Senator Boozman. [Presiding.] Well, thank you all for being 
with us, and I apologize for being late. We have had long 
votes, and there is just lots going on today that really is 
important. So thank you for bearing with us, and we really do, 
like I say, appreciate you being here. We appreciate Chairman 
Tester and Ranking Member Moran having the hearing on this so, 
so very important subject.
    When the pandemic first hit over a year ago, many services 
at the VA had to be suspended for safety of our veterans and 
the VA staff. This created barriers for veterans who wished to 
receive a C&P examination and apply for disability 
compensation. To help address this issue, we worked closely 
with the members on this Committee to provide the authority for 
the VA to enhance their capacity to conduct C&P exams and to 
return the backlog number back to pre-COVID numbers as soon as 
possible.
    I am happy to hear that the VA is using its new authority 
to address the backlog and schedule veterans for exams. Thank 
you all for your incredible work in that regard. We work so 
hard, as a Congress, and then you all implementing it such that 
we got things kind of under control, and then about the time we 
get under control to help veterans we give you additional work 
with things like the Blue Water Navy and the this and the that. 
So all of that is great, but it does create extra work. And 
then on top of that we had the pandemic, where, you know, 
people could not come in, or you all could not staff up like we 
did.
    So it is great that we are returning to some normalcy and 
we do appreciate not only your efforts but your staff that have 
done a tremendous job through all of this. So be sure and give 
them a big pat on the back.
    Mr. Murphy, your testimony includes several important steps 
to reduce the disability claims backlog. It includes a 
temporary increase in VHA C&P exam capacity and working closely 
with the contract examination providers to increase examination 
capability. In my State of Arkansas, more than 1,500 veterans 
were waiting for a C&P exam. While veterans in my State 
appreciate the effort, what are we going to ensure the accuracy 
and quality of the contracted providers conducting the C&P 
exams is more than adequate?
    Mr. Murphy. There are three layers of quality checks that 
go into the examination, so we will start with that one, and 
the first one is the contractor themselves, because of the 
nature of the contract, if their quality goes down there is a 
financial penalty that comes with that. So each one of them has 
a built-in, in-house quality review that checks it before they 
give it to us.
    Second, they give it to us, and then we do, just like we do 
with the star process in our decisions, we do random sampling 
across all different lines, all types of exams, statistically 
valid sampling, and then that is the measure that we use to 
hold their accountability.
    And then the third part of it is, it sits in front of a 
rater, and then that is more of a practical application is, is 
the evaluation complete? Does it have everything I need in here 
to make a rating decision? And, by the way, the answer to, when 
it gets to the rater, it is 98 to 99 percent of the time they 
can make a rating decision off of that.
    So there are multiple layers inside the process that checks 
the quality piece. And when you are dealing with contractors, 
they are accountable to dollars. They understand our mission, 
they are driving, they are doing good things for veterans, but 
they understand I have to have quality because it will hit me 
financially if I do not, and that is written right into the 
contract.
    Senator Boozman. Very good. Effective April 3d, as we 
talked about earlier, in 2020, the VBA suspended all in-person 
C&P exams due to the pandemic. The VA rightfully offered 
veterans the opportunity to wait for an in-person examination 
due to risk of infection and held their claims as non-
actionable.
    Now that in-person examination capacity is gradually 
returning back to pre-COVID levels, is the VA or its contracted 
vendors doing anything to contact those veterans about 
appearing for their C&P exams, and does the VA have enough 
trained staff to handle the backlog of exams?
    Mr. Murphy. We absolutely have enough trained staff to 
handle the backlog. Our chokepoint is the exam itself. We had a 
record chokepoint and we fixed it. Now it is the veterans 
showing up for the examination themselves. And just to put a 
number on it, that number nationwide is 58,000 veterans who 
have elected not to come in and get their examination done. We 
do not know if it is for COVID reasons or for other reasons. It 
does not really matter. We are in the middle of this pandemic 
and we will deal with it accordingly, and we will give veterans 
a great deal of latitude.
    So now that we know a great deal of them have been 
vaccinated--there are phone calls, there are letters, there is 
social media accounts saying, ``Please come in now. We are 
open. We would like to do your examination today. Please 
contact your provider or the VA and we will get you scheduled 
at the soonest possible time.''
    Senator Boozman. Very good. As of last week, the VA--and 
this is a good report--reported over 191,000 veterans' C&P 
claims were backlogged. While the number is certainly trending 
in the right direction, it is still double the size of the pre-
COVID backlogs, for the reasons that we talked about. Is there 
anything more--and I will really open this up to you and 
anybody else that wants to comment--is there anything more that 
Congress can do to authorize the VA to expedite the claims 
process to ensure veterans are receiving benefits in a timely 
manner?
    Mr. Murphy. Senator, Congress has been very generous with 
us, in terms of people, resources, dollars, overtime. The AARP 
gives us $150 million to do scanning, so that we can have the 
records in our hands and digital before it is needed. It gives 
us the $100 million we needed in additional overtime money, so 
when veterans show up to do their examinations I have the 
capacity to flex up to handle that, which is why I can say, 
with a very high degree of confidence, that the 100,000 at the 
end of Fiscal Year 2022. I do need to put a caveat on that. 
That is in today's environment. So I know we are talking about 
toxic exposures and other presumptives. Any of those 
presumptives comes in then we need to go back and recalculate, 
and then all bets are off.
    Senator Boozman. Right. Very good. Very good. Well, we 
appreciate you guys so much, and so we should recess again. 
Again, I apologize for the inconvenience and the running back 
and forth. The only thing we have got to do while we are here 
is vote. So you all are important, but that is even more 
important. So I am going to run and do that. And so while we do 
that, then we will be in recess for a little bit longer.
    Mr. Murphy. Thank you, sir.
    Senator Boozman. Thank you.
    [Recess.]
    Chairman Tester. [Presiding.] So--no, I am going to leave 
us out of order for a second, because I met Moran in the 
hallway and he said he about 35 minutes' worth of questions for 
you guys, and I talked him down. I talked him down. But we will 
call the hearing to order. I just want to thank you guys. We 
are done. You got the easiest damn hearing in VA history. Okay? 
Don't ever count on this happening again.
    Senator Moran. Secretary Murphy, you were so impressive.
    Chairman Tester. Yes, we could not stump you, and even if--
--
    Mr. Murphy. You are going to make me legendary in VA with 
this one, you know.
    Chairman Tester. Exactly right. And you go back and tell 
McDonough, ``Hey, baby, this is the way you run a hearing.''
    [Laughter.]
    Chairman Tester. So thank you guys. I will let you guys go 
and we will bring up the next panel. And while they are hitting 
the tables and we are changing nametags, I will explain who we 
are going to be talking to. But thank you, gentleman. I 
appreciate it very, very much. And as usual, if other Committee 
members--and there were not many here today--if they have 
questions we will be forwarding them on and hopefully you guys 
can get back in a timely manner. OK?
    Mr. Murphy. Absolutely, sir. Thank you.
    Chairman Tester. Okay. That does conclude our first panel. 
It is clear that VBA still faces challenges, but we will hear 
now from GAO and veteran service organizations about particular 
issues with the disability compensation process.
    I want to first introduce Elizabeth Curda--a little 
drumroll, Elizabeth--and Elizabeth is the Director of 
Education, Workforce, and Income Security at the GAO, 
Government Accountability Office. She is remote, exactly.
    Then we have Ryan Gallucci, who is Director of National 
Veterans Service at the Veterans of Foreign Wars; and somebody 
who is a regular guest at our Committee, Shane Liermann, who is 
the National Deputy Legislative Director at DAV. Finally, also 
from DAV, we have Carmen McGinnis, the National Service 
Officer.
    Ms. Curda, you are here virtually, I believe, and so you 
have the floor.

                            PANEL II

                  STATEMENT OF ELIZABETH CURDA

    Ms. Curda. Thank you, Chairman Tester, Ranking Member 
Moran, and members of the Committee. Thank you for inviting me 
to discuss our work on VBA's use of contract medical examiners 
and processing of complex disability claims.
    The Department of Veterans Affairs often uses medical exams 
to determine if disability benefits are warranted. This work 
has increasingly shifted from VA medical centers to 
contractors, who performed about 77 percent of the 1.4 million 
exams completed last year.
    Today I will discuss VBA's progress in implementing our 
2018 recommendations on contract medical examiner oversight and 
training and the impact of COVID-19 on VA disability workloads. 
I will also discuss our recent findings and recommendations on 
VBA's planning for the shift of its medical exam workloads to 
contractors and how VBA reviews the quality of contractor work 
on exams for complex claims.
    In 2018, we identified issues with VBA's oversight of 
contract examiners, including a lack of reliable and up-to-date 
performance data. VBA reported to us last month that it has 
implemented a new data team and tools to enhance its 
performance monitoring and ensure proper exam invoicing. We 
have requested documentation from VBA to assess whether its 
newly established tools are sufficient to implement our 
recommendations on VBA's use of performance data.
    Further, VBA has yet to implement a system to verify that 
all contractors have taken required training and to collect 
feedback on training quality, as we recommended. VBA says it 
has plans to implement an online training system this year and 
will continue to perform periodic audits of training in the 
meantime.
    While VBA has been transitioning to contract examiners for 
several years to help with workloads, the COVID-19 pandemic 
created new challenges and contributed to an increase in VBA's 
claims backlog. We reported in January on how VBA made 
adjustments to allow contractors to perform more exams 
virtually, and later ramped up in-person exams.
    In our March 2021 report, we found that VBA has not fully 
applied sound planning practices in transferring most 
disability exams from VHA medical centers to contractors. 
Specifically, VBA has not fully identified goals and 
established a strategy, coordinated and communicated with 
stakeholders, and conducted a risk assessment.
    In terms of goals and strategy, VBA has Stated that it has 
been VA's policy to transfer most exams to contractors while 
maintaining some VHA capacity. However, VBA has no documented 
plan with activities and timelines to achieve this balance. It 
is unclear to us whether the shift in exams has been in 
response to a VA-wide strategy or the decisions of individual 
medical centers that have been seeking to reduce or eliminate 
their exam workloads.
    Regarding coordination, VBA meets frequently with VHA 
officials and contractors to discuss short-term exam workload 
needs, but has not consistently communicated its long-term 
plans with exam providers and stakeholders. Additionally, VBA 
has not conducted a risk assessment.
    As was previously noted, VBA has yet to fully implement 
recommendations related to the oversight of contract examiners. 
Further, more than half of medical centers have sought approval 
to transfer some of their exam workloads to contractors, and 
the pandemic has placed new demands on all examiners. A risk 
assessment would help VBA proactively identify and manage risks 
and lessen their impact.
    We recommended that VA use sound practices to develop a VA-
wide plan for the future distribution of exam workloads. Such a 
plan would clearly identify actions and timeframes, could 
inform all exam providers of VA's common expectations for exam 
services, reduce uncertainty, and unify VA toward a common 
goal.
    Finally, regarding processing complex claims, such as those 
for traumatic brain injury, military sexual trauma, and Gulf 
War illness, both GAO and VA's Office of Inspector General have 
reported in the past on challenges VBA has had processing such 
claims, including issues related to the exams for these claims. 
In our most recent work, we found that VBA claims processors 
returned exam reports for these types of complex claims to 
contractors for correction or clarification at about twice the 
rate as exam reports overall. Time spent revising exam reports 
can result in longer wait times for veterans. We recommended 
that VBA conduct targeted reviews of exam reports for these 
types of claims to identify areas where contractors may need 
more training or guidance.
    In summary, in these challenging and uncertain times, our 
recommendations can help VBA improve contractor oversight and 
develop robust plans for how it will allocate future exam 
workloads.
    This concludes my prepared Statement, and I will be happy 
to address your questions.
    Chairman Tester. Thank you, Director Curda. Next up we have 
Ryan Gallucci from VFW. Ryan, you have the floor.

                   STATEMENT OF RYAN GALLUCCI

    Mr. Gallucci. Thank you, Chairman Tester. Chairman Tester, 
Ranking Member, Moran and members of the Committee, thank you 
for the opportunity to provide the VFW's insight on the State 
of VA disability claims processing.
    COVID-19 had a devastating effect on many aspects of 
American life. VA had to make difficult decisions in how to 
handle claims, and advocates like the VFW had to overcome 
unprecedented challenges to serve our clients.
    The VFW leveraged VA resources and other technology to 
continue providing quality representation throughout the 
pandemic. When we could no longer meet with veterans face to 
face, collaborative VA innovations like virtual hearings, 
remote access to information systems, electronic submission 
modalities, consideration of private telehealth records, and 
others allowed our work to continue uninterrupted. So let's 
keep the momentum going and work together to overcome 
persistent hurdles like antiquated IT credentialing processes 
and PDF-based systems to build a seamless digital process.
    In the record, I wrote in detail about technology appeals 
modernization and how VA measures success. My goal today is to 
reinforce these themes but to also invite a constructive dialog 
on solutions.
    First, the time has come to rethink how will VA measure 
success. VSOs want VA to provide veterans with timely access to 
benefits, but VA consistently measures itself on the speed with 
which it processes decisions. Timely access to benefits and 
speedy decisions are very different things. For something to be 
considered timely it must be useful. If a speedy decision fails 
to confer accurate benefits, it is not timely.
    Since Community Shinseki set the 125-day goal, VA has 
seemed obsessed with the benchmark, to the detriment of the 
veteran experience. In my written testimony, I described in 
detail one veteran whose experience did not match VA's picture 
of success. Due to hasty work, the veteran waited more than 8 
months for the benefits he deserved. VFW had to help this 
veteran file for the benefit three separate times, due to 
processing mistakes. The veteran received two erroneous 
decisions and grew understandably frustrated. Plus, the veteran 
did not receive his accurate benefits until the new year, 
potentially forfeiting significant State-level benefits for 
2020.
    But VA's metrics will not reflect this experience. By VA's 
standard, three decisions were processed in an average of 90 
days, exceeded the 125-day standard. We are measuring the wrong 
things and calling it success, which is why we need to come 
together to better define what success looks like. The VFW 
speculates that veteran satisfaction is critical to 
demonstrating success. Unfortunately, there is little publicly 
available data from VA on what veterans actually think. VFW 
collects some of this information from claims we serve on 
military installations, and it is generally favorable to VA. 
But during COVID it has gotten worse, with 22 percent of our 
clients reporting that they intend to appeal their decisions, 
since March 2020. VA needs benchmarks, and speed is a component 
of timeliness.
    VA also needs to evaluate accuracy to identify 
deficiencies. However, these do not necessarily reflect 
satisfaction or timely delivery of benefits. Whether it is long 
drives on short notices for exams, elimination of rating 
review, unreasonable employee production burdens, or 
restrictive AMA regulations, the VFW worries that many 
decisions are intended to improve speed but not veteran 
experience.
    We view the claims process as a social determinant of 
health. As the gateway to many VA programs, the claims 
experience sets the tone for how veterans will engage with VA 
in the future. We need to look at all VBA programs in this 
context, study them, report on them, and pivot where we need 
to.
    Next, VA needs to come back to the table on AMA. When we 
negotiated this landmark reform, VA pledged to work with VSOs 
on process improvements. However, when we pointed to critical 
flaws over the last couple of years, our concerns were 
dismissed. In one meeting, VA told VSOs that our recommendation 
to ease form requirements would make it harder for VA to build 
its report to Congress.
    I said it then and I will say it now: I don't care about 
VA's reports to Congress. I care about VA's timely delivery of 
benefits to veterans. I imagine the Committee shares this 
sentiment, which is why you asked for the reports in the first 
place. Those reports need to mean something. If a process is 
built to serve VA at the expense of the veteran, we are 
failing.
    VA should propose new regulations on intent to file and 
ease form restrictions that allow VA to reject certain 
substantially complete applications on a self-imposed 
technicality. VA told us, in 2019, they would draft new ITF 
regulations, but abandoned that last summer. If VA will not 
address these issues, we ask the Committee to act and clarify 
the intent of AMA.
    Finally, toxic exposure reform remains the VFW's top 
legislative priority. While VA may ask for more time, the time 
is now. Vietnam veterans are still waiting for benefits. 
Meanwhile, we are approaching 20 years since the first American 
staged at Karshi-Khanabad. The problem is not how Secretary 
McDonough may choose to leverage his authority on presumptives, 
but the inconsistency with which it can be leveraged by past 
and future Secretaries. This needs to change, and we look 
forward to working with this Committee and our partners at VA 
for this overdue reform.
    COVID has forced us all to rethink priorities and how we 
serve veterans. As we rebuild from the pandemic, we have an 
opportunity to meet the moment through collaborative reforms. 
We look forward to constructive conversations with our partners 
at VA and this Committee to know what has happened.
    This concludes my remarks, and I am eager to answer any of 
the Committee's questions.
    Chairman Tester. Ryan, I apologize. Thank you very much for 
those remarks. We appreciate them. Next Shane Liermann from 
DAV.

                  STATEMENT OF SHANE LIERMANN

    Mr. Liermann. Chairman Tester, Ranking Member Moran, and 
members of the Committee, on behalf of DAV's more than one 
million veterans who have wartime service-related wounds, 
injuries, diseases, and illnesses, we thank you for the 
opportunity to offer our view on the State of the claims 
processing during and after the COVID-19 pandemic. As you know, 
DAV represents over one million veterans in the claims and 
appeals process.
    Mr. Chairman, the pandemic has negatively impacted VA's 
ability to process veterans' claims and appeals, contain 
questionable policy changes, and has dramatically increased the 
backlog of pending claims. While VA is actively addressing the 
issues created by the pandemic, we are concerned that VA policy 
decisions are too often not focused on the non-adversarial 
veteran-centric nature of the claims and benefits process.
    In March 2015, VA standardized all claims and appeals forms 
to allow them to streamline, scan, and automate parts of the 
claims process. However, this policy change can take months of 
entitlement from veterans, and does not provide them with 
timely access to their earned benefits.
    For example, if a veteran submits a claim or appeal on the 
wrong form it may take VA months to review and advise the 
veteran the claim will not be accepted because it was submitted 
on the wrong form. Additionally, VA does not consistently 
notify the veteran which form should have been used and does 
not provide the correct form to the claimant to file. Thus, 
when a veteran does file the correct form, they can lose months 
of entitlement, as VA does not accept the claim submitted on 
the wrong form as a claim submission or as an intent to file, 
even though the exact same information may have been provided 
by the veteran on both forms.
    DAV and our VSO partners have addressed this issue directly 
with VBA several times, and unfortunately they are not willing 
to make changes, nor are they able to tell us how many veterans 
have been impacted by this process.
    While serving as the VA Administrator, General Omar Bradley 
Stated, ``We are dealing with veterans, not procedures, with 
their problems, not ours.'' Veterans need VA to focus on this 
problem, not VA's procedures that have cost veterans months of 
earned entitlement.
    During the pandemic, VBA made policy changes like this one 
that do not seem to be in the best interest of veterans, such 
as the elimination of the VSO 48-hour pre-decisional review and 
the removal of publicly available disability benefits 
questionnaires, or DBQs. We would like to point out that VBA 
has been openly collaborating with VSOs in reference to 
providing a mechanism to address errors found in decision. The 
claim's accuracy review or CAR pilot program is in the early 
stages, and while we remain very optimistic, VBA has made it 
clear that the 48-hour review will not return.
    We also would like to thank this Committee for their 
actions on Public Law 116-315, which required VA to again make 
all DBQs publicly available.
    Mr. Chairman, we raise all of these issues as the pandemic 
has contributed to VA facing over 350,000 pending exams, 
500,000 backlogged record requests with the National Personnel 
Records Center, and nearly 200,000 claims pending over 125 
days. If you throw in the 35,000 pending Blue Water Navy claims 
and the addition of the new Agent Orange presumptive diseases, 
it is apparent that VA has a difficult path ahead.
    In 2010, VA established a goal of adjudicating claims 
within 125 days, and anything pending over that is considered 
backlogged. While we applaud VA's commitment and their ability 
to reduce the claims backlog in 2016, we are more concerned 
with veterans receiving timely, accurate decisions than VA 
meeting their own arbitrary goal of 125 days.
    In a 2018 OIG report, it was found that VBA's 
prioritization of its own backlog resulted in delays in 
processing other claims, even if they were older and required 
rating decisions.
    Mr. Chairman, with the increased number of pending claims 
and VA's difficult task ahead, we want to ensure that VA policy 
decisions are focused on timely and accurate adjudications of 
veterans' claims, not just meeting VA's performance metric of 
125 days.
    This concludes my testimony, and I look forward to any 
questions you and the Committee may have.
    Chairman Tester. Thank you, Mr. Liermann. Next up, also 
from DAV, is Carmen McGinnis, virtually. Carmen?

                  STATEMENT OF CARMEN McGINNIS

    Ms. McGinnis. Chairman Tester, Ranking Member Moran, and 
members of the Committee, thank you for holding this important 
hearing to discuss the claims process and experience of 
survivors of military sexual trauma. I am proud to have served 
in the Marine Corps, enlisting on September 11, 2001. I served 
honorably in Afghanistan and other locations abroad, but my 
service was marred by the actions of another. I am before you 
today because I am an MST survivor. Though I will carry that 
scar for life, I have also found great purpose and fulfillment 
in my life.
    Today I work for DAV, helping ensure my fellow veterans are 
able to access the car and benefits they have earned. I have 
filed countless claims for MST survivors and fought alongside 
them on their journey through the daunting claims and appeals 
process. VA must work to make the claims process for MST 
survivors more compassionate, respectful, and focused on the 
best interest of the veteran.
    The VA's Benefits and Health Administrations have a clear 
disconnect when it comes to MST. VA's website States, ``You 
don't need documentation of MST experiences or a VA disability 
compensation rating to get care.'' While we applaud this 
veteran-first approach to care, the message from VBA seems to 
be ``we don't believe you,'' a message confirmed by the 
frequent denial of claims related to MST, despite the recent 
acknowledge of DoD Secretary Austin that ``Sexual assault and 
harassment remain persistent and corrosive problems across the 
total force,'' and nearly 7,000 reports of sexual assault 
reported by servicemembers in 2019 alone.
    VBA continues to focus efforts on identifying markers in a 
servicemember's record to prove an assault, despite the fact 
that many assaults still go unreported and have for decades. In 
contrast, if a veteran served in a combat zone but did not 
receive a combat award, it is an enough for them to claim that 
they feared for their life. I expect, if asked, many MST 
survivors would report they feared for their lives. I certainly 
did.
    While DAV believes it is important to protect the integrity 
of the claims process, the current evidentiary requirements are 
incongruent to the reality of the climate of assault we know 
exists in the military. As such, DAV supports lessening 
evidentiary burden for MST cases to more closely align with 
what is currently required for combat veterans.
    Mr. Chairman, the VA claims process for MST-related 
conditions can be cold, impersonal, and is often carried out 
with very little compassion for the dignity and humanity of a 
survivor. VA has attempted to standardize this process, but let 
me be clear--no sexual assault is standard. VA needs to 
recognize that MST survivors often feel shame, and that the 
event was somehow their fault, and they are not believed. When 
VA sends a development letter to the veteran who has already 
presented all the information necessary to concede a stressor, 
these feelings are reinforced.
    The language used by VBA in communications to survivors of 
MST is important and should be viewed from the perspective of 
the veteran, not just the VA. We recommend consulting with 
health care experts specializing in sexual assault to ensure 
language used in letters to veterans is not inflammatory or 
impersonal.
    Likewise, we believe changes should be made to improve 
coordination between VBA and VHA to ensure veterans filing an 
MST-related claim are aware that mental health services are 
available, despite the status of their claim. These cases 
should automatically initiate a communication to the veteran 
providing direct contact information for VBA and VHA MST 
coordinators and information on what services are available to 
them.
    As a service officer, I appreciate that VBA has made 
changes to how MST cases are processed. In fact, as of May 3, 
2021, VBA has directed all MST claims be consolidated and 
processed through five designated regional offices. Due to the 
complexity of these cases, this change makes sense. Denial of 
these claims often occurs because claims processors have not 
been properly trained to recognize possible markers linked to 
MST in the treatment records. For accurate and timely 
adjudication of these claims, there must be sufficient staffing 
levels, consistent and continuous training, along with 
continued oversight.
    In closing, VA recently published a blog entitled ``VA 
Believes in Survivors of Military Sexual Trauma.'' It is not 
enough for VA to say they believe in survivors but then deny 
their claims. VA simply must be do better. It is time to unify 
VA's believe in survivors across the entire Department and put 
the best interest of veterans at the heart of its approach to 
improving this often devastating and painful process.
    Mr. Chairman, this concludes my testimony, and I am happy 
to answer any questions you or the members of the Committee may 
have.
    Chairman Tester. Well, I want to thank you for your 
testimony. I want to thank all the folks who testified for 
their testimony. I am going to start. If Senator Moran comes 
back I will kick it over to him.
    What I wanted to start with is you, Director Curda, and I 
want to thank you for joining us. We rely heavily on you for 
your nonpartisan expertise, and I am glad you are with us 
today.
    Your team recently published a report that found that VA 
still has a lot of work to do when it comes to oversight and 
planning of contract examiners. Director Curda, we are told VBA 
and VHA coordinate contract examination strategies. Did your 
study find that that coordination is sufficient?
    Ms. Curda. Sure. We found that VBA and VHA were 
coordinating on short-term workload management, and I think 
that was what Acting Under Secretary Murphy was referring to in 
terms of holding weekly meetings to communicate between VBA and 
VHA on disability exam needs. And additionally, they have 
developed a process for VHA medical centers to request the 
transfer of exam workloads to VBA contractors, which is giving 
contractors some lead time to increase capacity, if needed.
    However, regarding the bigger picture and the longer term, 
it remains unclear to us to what extent VA's shifting exams 
from VA medical centers to VBA contractors is based on an 
agency-wide strategy versus changes in individual medical 
center capacity and decisionmaking.
    For example, officials we interviewed from the medical 
centers said that they were receiving fewer exam requests than 
they had indicated that they had the capacity to do in VBA's 
exam routing tool. In addition, VHA Stated that all medical 
centers are required to maintain some exam capacity. However, 
many VA medical centers have already transferred some or all of 
their disability exam workloads to contractors, and VA has not 
determined or communicated what the exam capacity is needed 
systemwide and for individual medical centers.
    To address uncertainty among disability exam providers and 
other stakeholders about future workloads, VBA should 
coordinate with VHA to develop an agency-wide, long-term 
strategy that includes input from all relevant stakeholders. 
Without such coordination on long-term planning, each VA entity 
may make decisions in their own silos without identifying 
capacity levels that make sense for the system as a whole.
    Chairman Tester. Okay. And I don't want to say something 
different than what you just said, but from a long-term 
workload planning standpoint, you think that the coordination 
is not sufficient.
    Ms. Curda. Correct.
    Chairman Tester. Okay. And that--and I am just kind of 
repeating back what you said--and that is because they are 
focused on the short-term workload, or is it because of another 
reason?
    Ms. Curda. They do appear to coordinate on a day-to-day 
basis on, you know, what exams need to be done right now. But 
what concerns us is, as of this year to date, the contractors 
are now performing 90 percent of exams, and a lot of medical 
examiners we spoke to were not aware that the capacity was 
shifting to mostly contractors.
    And so we just think that the coordination and 
communication across the two areas could be greatly improved.
    Chairman Tester. All right. Thank you.
    You brought up complex claims, like traumatic brain injury, 
military sexual trauma, Gulf War illness. Are there others?
    Ms. Curda. There certainly could be others. These are the 
ones that we focused on in our report, specifically, because 
they had previously been identified as challenging, either by 
us or by VA's Office of Inspector General.
    Chairman Tester. I have got you. So the question I have is 
what makes a claim complex?
    Ms. Curda. Sure. So these are claims that auditors such as 
ourselves, or the OIG has found there were problems in 
performing these exams, and VA itself requires specialized 
training, so that is another way of looking at it.
    So, specifically, we focused on those three areas. Other 
areas that could be considered complex, that we did not look 
at, would be something like PTSD. The VA OIG recently 
identified issues with VBA's processing of those claims more 
broadly.
    But regarding the complexity, it really varies for each 
claim type. So, for example, with the Gulf War illness claims, 
they often involve what are called undiagnosed illnesses and 
unexplained, chronic, multi-symptom illnesses of unknown cause. 
These are very specific terms with legal requirements. And if a 
provider provided a medical opinion in cases when a service 
connection should have been presumed, that could lead to an 
inaccurate denial of benefits, and that is something that a 
doctor, you know, typically is trained to provide a medical 
opinion, and so in some cases they are not supposed to, so that 
can be confusing.
    In contrast, evaluating military sexual trauma is complex 
based on the sensitive nature of the exams and challenges 
identifying potential supporting evidence in the veteran's 
records.
    Taking a closer look at exam reports for these complex 
claims is important, because VBA data suggests that contract 
examiners may find completing these exam reports more 
challenging than for other more routine exams, and we found 
that claims processors returned exam reports related to these 
types of claims at twice the rate as for exam reports overall.
    Chairman Tester. Okay.
    Ms. Curda. So having to return those exam reports to 
examiners for rework slows down processing the veteran's 
claims, which mean the veteran is waiting longer and there is a 
potential for an inaccurate exam report that could affect the 
veteran's rating.
    Chairman Tester. Thank you much. I have more questions and 
I am going to come back to them, but I understand Kyrsten 
Sinema is on virtually. Senator Sinema, you can go.

                     SENATOR KYRSTEN SINEMA

    Senator Sinema. Thank you, Chairman Tester, and thank you 
to Ranking Member Moran for organizing this hearing, and thank 
you to our witnesses for your continued efforts to support 
veterans and their families and for your participation today.
    My first question is for Mr. Liermann. My office has 
received a number of inquiries from Arizona veterans regarding 
the use of disability benefits questionnaires. In some cases, 
veterans who submit DBQs are required to schedule compensation 
and pension exams by the VA. In other similar cases, the VA 
accepts the DBQs and does not require C&P exams. So we have got 
veterans who have contacted us and they are frustrated. They 
see this as the VA applying the DBQ policy inconsistently.
    So in your testimony you identified some of the challenges 
of the removals of DBQs. With their reinstatement, are you 
seeing inconsistencies in how the VA considers DBQs when 
adjudicating a claim?
    Mr. Liermann. Thank you, Senator. Great question. We kind 
of look at that, or refer to that as overdevelopment. If there 
is a DBQ submitted by the veteran that fulfills the 
requirements for that evaluation or for VA to provide a 
decision, there is no need for VA examination if that 
information was provided. If that DBQ did not provide the right 
information, then yes, they could request an additional VA 
examination.
    But to your point, we have been seeing this for years in 
the veterans community. I know VFW, as well as us and other 
organizations representing veterans, have seen this as a 
consistent problem, that even if the veteran is providing that 
information, they are still requesting the exams, 
overdeveloping it, and causing delays in other cases. And then 
in some instances, they will take VA's requested exam 
information over what the veteran provided because that 
examiner had access to the entire file, so they will give more 
weight to the VA exam than to the private medical evidence, or 
DBQ, that the veteran submitted. And you are absolutely 
correct--it is frustrating and a problem.
    Senator Sinema. So are there steps that should be taken to 
ensure the use and consideration of DBQs are more standardized? 
What can be done?
    Mr. Liermann. Thank you, Senator. What we recommended in 
our written testimony was VA should have a tracking mechanism 
for that. Every time the veteran submits a DBQ along with a 
claim, VA should be tracking those and then be able to 
determine at what rate are they asking for additional 
examinations and for what reasons. That might help identify, 
potentially, a training problem within VSRs, or are VSRs 
requesting additional or more information. Because when you 
look at it, by them continuing to do that, if it is not needed, 
they are wasting time, money, and delaying veterans access to 
their benefits.
    Senator Sinema. Thank you.
    Mr. Gallucci, could you answer the same question that I 
posed to Mr. Liermann?
    Mr. Gallucci. Thank you, Senator. Yes, to provide a little 
bit more to what Shane was talking about, I think what may have 
been happening could also be the product of some of the 
circumstances of COVID-19. So what we recognized under COVID-19 
is that in VA's benefits processing manual there was a bar to 
considering private medical evidence acquired via telehealth. 
VA could not consider that for rating purposes if it came from 
a private doctor.
    Thankfully, VA did pivot, but they made the change to the 
manual only in March. It was something that VSOs like VFW and 
DAV were advocating for. It is a positive, veteran-centric 
change, but I am concerned that potentially veterans in 
Arizona, whose private medical evidence may have been acquired 
via telehealth prior to that processing change, did not have 
their evidence considered, regardless of what form it may have 
been on.
    Senator Sinema. Thank you. Now this question is for both 
Mr. Liermann and Mr. Gallucci. The VA discontinued use of DBQs 
last year because of a growing concern of fraudulent practices. 
So in your opinion, was this warranted, and if so, with the 
reinstatement of Dabs what steps should the VA or Congress take 
to mitigate potential fraudulent practices?
    Mr. Liermann. Thank you, Senator. There was an OIG report 
that came out that made reference to potential fraud on DBQs. 
However, they never proved fraud. There was no actual proof in 
any of the information that fraud was actually committed.
    And then the other side of that, the OIG report also made 
several recommendations that VBA could implement before just 
discontinuing the DBQ forms. However, they chose not to take 
any of those recommendations and pivoted right to discontinuing 
DBQs, and then it really created this inequity, because 
veterans represented by VSOs, such as VFW and DAV, we would 
still have access to the DBQs behind VA's firewall and could 
provide that to the veterans we represented. Unrepresented 
veterans had no access until Congress brought those back and 
they are now available, and that was also a huge part of the 
problem.
    Mr. Gallucci. Senator if I may respond. I know we are a 
little bit over time. But with regard to that question, there 
are really two parts to that. First, the VFW read that IG 
report very differently than VA did, and similar to what Shane 
said, we saw it as a problem with veterans acquiring 
questionable medical opinions. We think this is a growing 
problem during the pandemic.
    Unfortunately, there are organizations that will charge 
fees that are out of line with what VA allows under the law and 
help veterans acquire medical opinions of questionable value. 
We know that this is a problem that VBA is looking at. It is 
something that is very serious. Fortunately, VA has the options 
to weight medical evidence, evaluate whether it was a treating 
physician.
    It is a conversation that the VSOs do need to have again 
with VBA and consistently followup, to make sure that they are 
weighing it properly. We have seen some examples where VA 
determines that the private medical evidence was not from a 
treating physician, but the record demonstrated otherwise, as 
in the veteran was treated by that doctor for a long period of 
time.
    It is a complex issue. We are very eager to have more 
conversations about this, though, because I think it is 
something we can solve and something that we need to solve.
    Senator Sinema. Thank you. Mr. Chairman, thanks for your 
indulgence. I know my time has expired. I appreciate you. Thank 
you.
    Chairman Tester. Absolutely. Thank you. I have question for 
Carmen McGinnis, who is virtually here as a testifier.
    Ms. McGinnis, I want to thank you for your service to our 
Nation and I am thankful that you are here today. Your 
experience with the process of filing your specialty or complex 
claim for surviving military sexual trauma is going to help 
Congress and it is going to help this Committee and the VBA 
improve the support for other veterans.
    So, Ms. McGinnis, please tell us about your experience with 
the disability compensation process, and what we can do to 
improve it for other survivors.
    Ms. McGinnis. Thank you. There are a few things the VA can 
do to better support MST survivors. One is lowering the 
evidentiary standard. Second would be to revise the development 
letters and ensure veterans have the direct contact information 
for their local MST coordinator in VBA and VHA, and that they 
are made aware of the medical benefits that might be available 
to them through these MST coordinators.
    Also implementing a mechanism where a claimant can elect to 
have a male or female provider for their MST-related claim and 
examination. This was in line with Public Law 116-315 and it 
has not been implemented to date. Also ensuring claims 
processors are well trained and properly overseen, keeping in 
mind the perspective and feelings of the survivor, and not 
rushing a claim through a standardized process.
    All of those would be top priorities for DAV concerning MST 
claims and what I think the VA could do to better support MST 
survivors.
    Chairman Tester. Well, I appreciate that input. Thank you.
    Mr. Liermann, thanks again for being here. There were 
issues with the disability claims process prior to the 
pandemic, and your written testimony provides several examples 
of how the process is not veteran focused. So, Mr. Liermann, 
you wrote that disabled veterans could lose months of 
entitlement if they fill out the wrong form. Would you flesh 
that out a little bit?
    Mr. Liermann. Absolutely. Thank you, Senator. If a veteran 
submits a claim, let's say, for example, what is called the VA 
Form 526, which is like a formal claim, they submit that today. 
Four months from now, the VA will notify them, ``You already 
claimed that issue 10 years ago. That is the wrong form.'' So 
they will send that notification to them in the mail. Not in 
every instance will they tell them the correct form they need 
to use, or even provide it to them.
    So by the time the veteran then figures out what is the 
correct form, they have already lost 4 months or more of an 
effective date, because VA will not accept an incorrect form as 
an informal claim submission or an intent to file and protect 
that effective date. So by the time the veteran then figures it 
out, they have potentially lost four to 6 months, if not more, 
of months of entitlement.
    Chairman Tester. Okay. Well, I just want to thank all of 
you for being here today, GAO, the VSOs, VA officials, all of 
you for being here today. Millions of disabled vets rely on the 
VBA. We must remember that veteran-focused claim process 
emphasizes quality and fairness and not speed at all cost. And 
I would just add to that, I talked to the Secretary today, and 
I think he firmly believes that, and I believe you do too. And 
so I appreciate that.
    Furthermore, disabled veterans with specialty claims need 
particular oversight from VBA. The Committee will certainly 
provide oversight for that, to make sure that will happen, to 
the best of our ability.
    So on that note we will keep the record open for 1 week. If 
there are questions that come in we will forward them to you. 
Hopefully you can get them returned in a timely manner.
    I apologize. Normally we have got a ton of people here. 
This is a very, very important issue. But as I said at the very 
beginning, it has been a crazy damn day, and I have got to 
gavel out right now. Otherwise they will close out the vote and 
I will not get a chance to vote.
    So I just wanted to thank you all for being here. This 
hearing is adjourned.
    [Whereupon, at 4:44 p.m., the Committee was adjourned.]

                                APPENDIX

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