Veterans' Benefits: Effective Interaction Needed Within VA to Address
Appeals Backlog (Chapter Report, 09/27/95, GAO/HEHS-95-190).
Pursuant to a congressional request, GAO examined the need for
organizations within the Department of Veterans Affairs (VA) that are
involved in processing claims to increase cooperation and coordination
so that impediments to processing appeals can be identified and
resolved.
GAO found that: (1) legislation and Court of Veterans Appeals' rulings
have forced VA to integrate new adjudication responsibilities into its
already unwieldy adjudication process; (2) since 1991, the number of
appeals awaiting Board of Veterans Appeals' action has increased by over
175 percent and the average processing time has increased by over 50
percent; (3) the current VA legal and organizational framework makes
effective interaction among autonomous VA claims adjudication
organizations essential to fair and efficient claims processing; (4)
although VA believes it has implemented efficient problem solving
mechanisms, problems are going unidentified and unresolved; (5) unless
consistent Board interpretations are developed, VA decisions will
continue to be remanded, delaying benefits for some veterans and
increasing VA workloads; and (6) unless VA clearly defines its
adjudication responsibilities, it can not determine whether it has
adequate resources to meet those responsibilities and whether new
solutions may be needed.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: HEHS-95-190
TITLE: Veterans' Benefits: Effective Interaction Needed Within VA
to Address Appeals Backlog
DATE: 09/27/95
SUBJECT: Veterans benefits
Claims adjudicators
Administrative hearings
Appellate procedure
Internal controls
Claims processing
Military benefits claims
Claims settlement
Pension claims
Interagency relations
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Cover
================================================================ COVER
Report to Congressional Requesters
September 1995
VETERANS' BENEFITS - EFFECTIVE
INTERACTION NEEDED WITHIN VA TO
ADDRESS APPEALS BACKLOG
GAO/HEHS-95-190
VA Appeals Processing
(105735)
Abbreviations
=============================================================== ABBREV
VA - Department of Veterans Affairs
VARO - Veterans Benefits Administration regional offices
VBA - Veterans Benefits Administration
VHA - Veterans Health Administration
Letter
=============================================================== LETTER
B-260589
September 27, 1995
The Honorable John D. Rockefeller IV
Ranking Minority Member
Committee on Veterans' Affairs
United States Senate
The Honorable Ben Nighthorse Campbell
United States Senate
Veterans are waiting a long time for the Department of Veterans
Affairs (VA) to decide their compensation and pension claims. If
they appeal a VA decision, the wait is even longer, and many veterans
will not receive benefits that they are entitled to until a final
decision is made. In fiscal year 1994, 400 veterans died while
awaiting VA's final decision.
This report, prepared at your request, discusses the need for
organizations within VA that are involved in processing claims to
increase cooperation and coordination so that impediments to
processing appeals can be identified and resolved.
We are sending copies of this report to the Secretary of Veterans
Affairs and other interested parties. The report was prepared under
the direction of Ruth Ann Heck, Assistant Director, Health Care
Delivery and Quality Issues. Other major contributors are listed in
appendix II. Please call me on (202) 512-7101 if you have any
questions.
David P. Baine
Director, Health Care
Delivery and Quality Issues
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
Veterans often wait many months for the Department of Veterans
Affairs (VA) to decide their compensation and pension claims. In
addition, about 40,000 veterans who annually appeal VA's decisions
wait much longer. If a veteran appeals VA's initial decision, he or
she will wait well over 2 years for a final decision, agency
officials said. Thus, many veterans experience a significant delay
in receiving benefits that they are entitled to.
Since 1990, several studies by different groups, including GAO, VA's
Inspector General, and VA special task forces, have addressed the
untimely processing of claims and appeals. Although the
recommendations were wide-ranging, one area frequently cited was the
need for the autonomous organizations in VA to work together to
identify and resolve problems. Senator John D. Rockefeller IV, then
Chairman of the Senate Committee on Veterans' Affairs, and Senator
Ben Nighthorse Campbell asked GAO to report on the status of VA's
appeals backlog and on VA's progress in implementing recommendations
from the studies, especially those concerning interaction among VA
organizations.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
Adjudication of veterans' claims and appeals is a complicated
process. The process is designed to provide the veteran with every
opportunity to substantiate a claim. The process begins at any of
the Veterans Benefits Administration's (VBA) 58 regional offices
(VARO) where adjudication staff marshal pertinent evidence and decide
if the veteran is entitled to benefits. An important part of that
evidence often is an examination conducted by physicians in the
Veterans Health Administration (VHA).
If the veteran disagrees with the VARO decision, the veteran may
appeal to the Board of Veterans' Appeals. The Board may decide the
claim or remand (return) it to the VARO for further development and
reconsideration. For 55 years, the Board's decisions were final.
However, in 1988, the Veterans' Judicial Review Act created the Court
of Veterans Appeals. Veterans may now appeal Board decisions to the
Court.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
VA's appeals process is increasingly bogged down, and the outlook for
the future is not bright. The act and Court rulings expanded
veterans' rights but also expanded VA's adjudication
responsibilities. VA is having difficulty integrating these
responsibilities into its already complex and unwieldy adjudication
process. Since 1991, the number of appeals awaiting Board action has
increased by 175 percent and average processing time has increased by
over 50 percent.
The current legal and organizational framework--which involves
several autonomous VA organizations in claims adjudication--makes
effective interaction among those organizations essential to fair and
efficient claims processing. A common theme of many study
recommendations is the need for VA organizations to work together to
identify and resolve problems. VA officials have not, however,
implemented many of the recommendations, believing that other formal
and informal mechanisms are effective.
Yet GAO found evidence that in spite of these mechanisms, problems
are going unidentified and unresolved. For example, GAO found
instances in which VBA officials were unaware of Board
interpretations, guidance and practice were inconsistent with Board
interpretations, and questions about interpretation had been raised
but not resolved. Unless consistent interpretations are developed,
VARO decisions will continue to be remanded, delaying benefits for
some veterans and increasing the workload for the Board, VBA, and
VHA. In addition, unless VA clearly defines its adjudication
responsibilities it will not be able to determine whether it has the
resources to meet those responsibilities and whether some new
solutions may be needed, including amending laws defining VA's
responsibilities, or reconfiguring the agency.
PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4
APPEALS PROCESS INCREASINGLY
BOGGED DOWN
-------------------------------------------------------- Chapter 0:4.1
Over 47,000 appeals were awaiting decisions at the end of 1994, and
this backlog is likely to increase. Although the number of appeals
filed has been decreasing slightly, the number decided by the Board
has been shrinking rapidly--50 percent since 1991. Even more
alarming, almost one-half of the Board's decisions are not final;
they are decisions to remand the claim back to the VARO. Based on
recent history, VAROs will again deny three-fourths of these claims
and return them to the Board for action.
VA attributes much of its claims processing difficulties to increased
responsibilities placed on it by the 1988 act and Court decisions,
particularly the need to explain the "reasons and bases" for
decisions and to meet VA's "duty to assist" the veteran in filing and
proving a claim. VA officials also said that the act and Court
decisions have placed greater emphasis on procedures, resulting in
remands for failure to follow technical procedures even though the
final outcome was not expected to change.
RECOMMENDATIONS TO ENSURE
ORGANIZATIONS WORK TOGETHER
NOT IMPLEMENTED
-------------------------------------------------------- Chapter 0:4.2
Several studies have recognized the need for the autonomous
organizations involved in adjudication to work together to resolve
processing difficulties. For example, in 1990 GAO recommended that a
focal point be appointed to ensure cooperation in resolving problems.
Recommendations have been made by others for task forces and working
groups to develop strategic plans, formulate guidance, and recommend
improvements in processing procedures.
Although VA agreed to implement each of these recommendations, it did
not do so. VA officials pointed to both informal and formal meetings
of organization staff and officials as meeting the intent of these
recommendations. Among other activities, they pointed to (1) monthly
meetings by the Chairman of the Board, the Under Secretary for
Benefits, and the Deputy Secretary of VA to discuss timeliness of
claims processing and (2) efforts by Board, VBA, and General Counsel
staff to inform VARO staff of Court decisions.
AUTONOMOUS ORGANIZATIONS SET
INDEPENDENT ADJUDICATION
POLICIES AND PROCEDURES
-------------------------------------------------------- Chapter 0:4.3
Organizations involved in adjudication are independent of each other
and report directly to the Secretary. Each is bound by the same laws
and regulations but issues independent policy and procedural
guidance. The Board, as established by law, is not a policy-making
body. Yet Board interpretations of legal and judicial requirements
can have implications for adjudication policies and procedures. For
example, if those policies and procedures are not consistent with the
Board's interpretations the number of remanded decisions will rise.
Also, hundreds of individuals within these organizations interpret
and apply laws, regulations, and guidance in adjudicating claims.
This legal and organizational structure makes consistent
interpretation of VA's responsibilities essential to fair and
efficient adjudication but difficult to achieve.
GAO found evidence that VA organizations are not effectively
identifying and resolving intra-agency impediments to efficient
claims processing. GAO's limited review identified several instances
in which VBA policies and practices were inconsistent with Board
decisions. For instance, VBA officials were unaware that Board
officials interpret Court decisions to require physicians to have the
entire claim file so that an examination for disability compensation
can be a fully informed (thorough) one. VBA's guidance states that
the file should only be provided in certain cases, such as those
remanded by the Board.
If VBA and VHA policies and practices are not consistent with Board
decisions, the likelihood that the Board will remand claims
increases. Furthermore, different interpretations have different
implications for the resources each organization needs to meet VA's
responsibilities. Both Board and VBA officials expressed concern
that they lacked the resources to carry out responsibilities
according to the Board's current interpretation of laws and Court
decisions. But a clear understanding of these responsibilities is
needed for a meaningful analysis of the resources needed.
During GAO's review, VA took two steps that hold promise for improved
interaction among VA organizations. VBA recently completed a study,
assisted by Board staff, that identified a number of areas in which
VARO actions were not in accord with Board interpretations and
recommended that VBA, with Board assistance, develop guidance and
training programs to clarify requirements. Also, VBA, VHA, the
Board, and VA's Office of General Counsel recently appointed
representatives to a permanent working group to address issues of
adjudication timeliness and quality. These efforts could help ensure
that problems are identified and resolved; however, in some cases
resolution may need Department-level action.
RECOMMENDATION
---------------------------------------------------------- Chapter 0:5
GAO recommends that the Secretary of Veterans Affairs designate an
official to direct efforts to identify and resolve intra-agency
impediments to efficient processing of veterans' compensation and
pension claims and appeals. This should be an ongoing effort, but
the initial focus should be a joint effort by VBA, the Board, VHA,
and if necessary the Office of General Counsel to ensure that VBA and
VHA policies and practices and Board interpretations of VA's
responsibilities are consistent.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6
In a meeting on August 15, 1995, VA officials concurred with GAO's
recommendation and said that the Deputy Secretary sees the
identification and resolution of impediments to efficient claims and
appeals processing as his responsibility. They said that actions to
ensure identification and resolution of problems have been suggested
in many past studies and that many of these ideas have been or will
be implemented. Officials, however, did not identify any specific
planned actions.
INTRODUCTION
============================================================ Chapter 1
In recent years the claims adjudication process within the Department
of Veterans Affairs (VA) has been the subject of much concern and
attention, both within VA and from others, including members of the
Congress and veterans service organizations. In May 1995, veterans
were awaiting decisions on over 450,000 compensation and pension
claims and VA was taking over 5 months on average to process original
disability compensation claims. Although these numbers represent
some improvement over the immediately preceding years, no such
improvement has been shown in appeals processing. At the end of 1994
over 47,000 appeals were before the Board of Veterans' Appeals. On
average, veterans\1 could expect to wait almost 2-1/2 years from the
date of their original claim to receive a decision on these appeals.
Many veterans will, therefore, experience a significant delay in
receiving benefits they are entitled to.
Over the last 5 years, numerous studies have made recommendations to
improve VA claims processing and many of these recommendations have
focused specifically on appeals processing. In response to these
studies, recent legislation, and other management initiatives, VA has
implemented many changes and plans more efforts to address problems
at both its regional offices (VARO) and the Board. In spite of these
actions, however, VA officials foresee continued problems with
appeals processing.
Although the recommendations were wide-ranging, three areas were most
frequently targeted. Appendix I summarizes recommendations and VA
actions in two of these areas: (1) improving staff performance
through training, guidance, and standards and (2) increasing process
efficiency through actions such as automation, revised procedures,
and increased staffing. Recommendations and VA actions in the third
area--ensuring that VA organizations work together to identify and
resolve problems--are the focus of this report.
--------------------
\1 In some cases veterans' spouses and dependent children and parents
are eligible for VA benefits. In this report the definition of
veteran includes these other types of VA program beneficiaries.
CLAIMS ADJUDICATION IS COMPLEX
---------------------------------------------------------- Chapter 1:1
The adjudication of VA disability compensation and pension claims,
including adjudication of appeals, is a fairly complicated process,
involving many organizations in VA and often a veterans service
organization representative as well as the veteran. The process is
one that seeks to ensure every opportunity for the veteran to
substantiate the claim.
One of the 58 VAROs\2 in the Veterans Benefits Administration (VBA)
first makes a decision about a claim after obtaining all available
pertinent evidence, including oral evidence at a hearing if the
veteran so requests. An important part of the evidence is often a
physical examination conducted by physicians in the Veterans Health
Administration (VHA), which operates the many medical centers and
other health facilities in VA.
If dissatisfied with the VARO's decision, the veteran may file an
appeal, which is decided by the Board, an independent organization
within VA. The Board also may conduct a hearing if the veteran
requests. The Board can allow or deny benefits or remand (return)
the claim to the VARO to develop further evidence and reconsider the
claim.
Before 1989, the Board's decision on an appeal was final. In that
year the Court of Veterans Appeals, established by the Veterans'
Judicial Review Act (P.L. 100-687, Nov. 18, 1988), began to hear
cases. With the Court in place, the Board is no longer the final
step in the claims adjudication process. Veterans who disagree with
Board decisions may now appeal to the Court. Additionally, under
some limited circumstances, either veterans or VA may appeal Court
decisions to the Court of Appeals for the Federal Circuit.
Veterans appeal relatively few VARO decisions. In 1994, veterans
appealed 8 percent of compensation and pension cases decided by the
VAROs.\3 Of the cases appealed to the Board, about 17 percent are
ultimately allowed by the VARO or Board when they consider the
appeal.
--------------------
\2 In 1988, responsibilities for adjudicating claims received at the
Cheyenne, Wyoming, VARO were transferred to the Denver VARO.
\3 The number of cases appealed is less than the number of cases in
which the veteran files a "notice of disagreement" with VA. This
notice is the first step in the appeals process. In some cases,
after the notice of disagreement, the VARO grants the benefits
sought; veterans may also decide not to continue with the appeal if
the VARO again denies the benefits at this point. VBA does not
maintain data on the number of these cases for which benefits are
granted.
ADJUDICATION PROBLEMS A
CONTINUING CONCERN
---------------------------------------------------------- Chapter 1:2
VA officials have recognized the critical problems they face in
appeals processing and are making many changes in an effort to solve
them (see app. I). Such changes could improve claims adjudication
quality and timeliness; however, Board officials are skeptical about
the extent to which implemented and planned changes will reduce the
appeals backlog and processing time. In fact, the Chairman of the
Board suggested that to solve the problems either significant
additional resources must be committed or the process itself must be
altered.
The Congress' continued concern about VA's ability to process claims
led it to create, in November 1994, the Veterans' Claims Adjudication
Commission. The Commission, with representation from both inside and
outside VA, is charged with studying the entire adjudication process,
from the beginning through final appeal, and making recommendations
for improvements. The Commission is to submit its preliminary
conclusions to the Congress in November 1995 and its final report
with recommendations in May 1996.
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:3
Senator John D. Rockefeller IV, then Chairman, Senate Committee on
Veterans' Affairs, and Senator Ben Nighthorse Campbell asked us to
review several aspects of the Board's processing of appeals. During
our preliminary work we identified several recently completed reviews
of VA's appeals process. We also determined that VA had made
progress in implementing two types of recommendations frequently
cited in these studies--those dealing with improving staff
performance and with making the process more efficient--but
substantially less progress in a third area, interaction among VA
organizations responsible for appeals processing. In subsequent
discussions with the requesters' staffs we agreed to focus our review
on (1) the current state of appeals processing, including trends in
timeliness and backlog, and (2) the extent to which VA has
implemented study recommendations, especially those designed to help
VA organizations work together to improve claims and appeals
processing to better serve the veteran.
Through discussions with Board officials and others, we identified
seven studies that included adjudication of veterans' appeals. The
studies were completed between May 1990 and March 1995. The studies
contained 89 recommendations. To better understand the intent of
some recommendations and obtain further insights of those who had
participated in the studies, in some cases, we also discussed the
recommendations with members of the study groups.
We reviewed the following seven studies that evaluated aspects of the
appeals process:
1990 GAO report, (Veterans' Benefits: Improved Management Needed
to Reduce Waiting Time for Appeal Decisions (GAO/HRD-90-62, May
25, 1990) discussed the lack of timeliness in VA appeals
processing.
1992 Task Force on the Impact of the Judicial Review Act of 1988
evaluated the effect of the Court on workload and timeliness.
1993 Blue Ribbon Panel on Claims Processing made recommendations to
shorten the time it takes to make disability decisions,
including appeals.
1994 Analysis of Board of Veterans' Appeals Remands (VBA's study of
almost 700 remanded cases) sought to improve the timeliness of
the service VA provides to customers who appeal a decision.
1994 Board of Veterans' Appeals Select Panel on Productivity
Improvement developed recommendations to reduce appeal
processing time.
1995 VA's Compliance With the Court of Veterans Appeals (a
committee appointed by the Secretary of VA) investigated issues
raised by the Court's Chief Judge.
1995 VA Inspector General Audit of Appeals Processing Impact on
Claims for Veterans' Benefits reviewed the impact of appeals and
the appeals process.
We also included in our review actions taken beyond specific study
recommendations, including the Board's plans for reorganization and
implementation of two key pieces of legislation that mandated or
allowed changes in claims processing: The Board of Veterans' Appeals
Administrative Improvement Act of 1994 (P.L. 103-271, July 1, 1994)
and the Veterans' Benefits Improvements Act of 1994 (P.L. 103-446,
Nov. 2, 1994). Among other things, these laws allowed single-member
Board decisions\4 and required VAROs to place a priority on
adjudicating appeals remanded by the Board. To determine the status
of the recommendations and other actions, we interviewed officials of
three VA organizations directly involved in appeals processing--VBA,
the Board, and the VA Office of the General Counsel--in Washington,
D.C. We also reviewed pertinent documents and records obtained from
these organizations, as well as relevant VHA policies; VHA publishes
the guidance used by its physicians in performing disability
determination examinations.
Additionally, to provide examples of the adjudication process and
problems identified in the studies, we reviewed a small sample (39)
of appeals that the Board remanded during the period January 27 to
31, 1995. We selected the cases from the 290 that were remanded
during this period.
Although the Board decides appeals about all aspects of veterans
programs, including, for example, health care, home loans, and
education, over 90 percent of appeals concern claims for disability
compensation and pension benefits originally decided by VAROs.
Therefore, we focused on these types of appeals. The Board remands
appeals to the agency of original jurisdiction, which could be
organizations within VA other than VBA. However, because we focused
on compensation and pension appeals, we refer throughout this report
to VBA, which is the agency of original jurisdiction for these types
of claims.
We did not assess either the efficiency of VA's claims and appeals
adjudication operations or the impact that implementing the study
recommendations would have on operations. Also, we did not
independently verify, beyond reviewing VA central office documents,
the extent or manner in which recommendations have been implemented.
We did our work in accordance with generally accepted government
auditing standards from December 1994 through July 1995.
--------------------
\4 Before enactment of this legislation, Board decisions were
rendered by a panel of three Board members.
APPEALS PROCESS IS INCREASINGLY
BOGGED DOWN
============================================================ Chapter 2
Veterans are waiting increasingly longer times for their appeals to
be decided. Both the number of appeals waiting to be processed and
appeal processing times have grown substantially in recent years.
Similarly, the percentage of cases remanded to VAROs for additional
action has increased. The Board attributes much of this increase to
additional responsibilities placed on VA and the Board in particular
by the act and Court rulings.\5 These responsibilities are seen as
especially difficult to integrate into an already complicated and
lengthy process.
--------------------
\5 For example, as discussed later in this chapter, in response to
Court decisions VA has had to substantially increase the level of
detail included in its decisions and the amount of assistance it
provides to veterans in filing claims.
BACKLOG AND PROCESSING TIMES
GREATLY INCREASED
---------------------------------------------------------- Chapter 2:1
The backlog of cases awaiting Board action has been increasing since
at least 1985. However, as shown in figure 2.1, this increase began
to skyrocket after 1991. Overall, the backlog increased by almost
175 percent, from about 17,000 in 1991 to over 47,000 in 1994. In
large part this increase is due to the decrease in the Board's
productivity--the number of decisions rendered annually. This
decrease began about the time the Court began remanding cases to the
Board for lack of completeness. Although the number of appeals
received by the Board annually has decreased slightly in recent
years, the backlog has grown substantially as the number of decisions
the Board rendered decreased. The number of decisions dropped from
about 45,000 in 1991 to about 22,000 in 1994. Given that the number
of decisions rendered annually is significantly lower than the number
of appeals being filed (about 35,500 in 1994), the backlog can be
expected to continue to increase.
Figure 2.1: Backlog Increasing
as Board Productivity Falls
(See figure in printed
edition.)
Appeals processing time is also on an upward course. On average,
appeals decided in 1990 that were not remanded took about 16 months
from the time the veteran notified the VARO that he or she disagreed
with the VARO's decision until the Board made its decision. In 1994,
an appeal took over 24 months to process, a 50-percent increase in 4
years. During a large part of that time the appeal is "in queue" at
the Board, awaiting its turn. The portion of time the appeal was
before the Board--after the VARO had reconsidered the appeal based on
the veteran's notice of disagreement and certified the appeal to the
Board--increased 100 percent, from 6 months in 1990 to 12 months in
1994. Board officials acknowledged that as the backlog increases the
processing time will also rise. Unlike VBA, the Board has not
established claims processing timeliness goals. VBA has established
goals for some types of claims. For example, its goal for original
compensation claims is 106 days. However, the Board has not
established any similar types of goals.
Another measure of this increase is the Board's response time,
defined as the number of days it will take the Board to render
decisions on all pending appeals. The Board's response time rose
from 240 days in 1992 to 781 days in 1994; as of July 1995, the
response time for fiscal year 1995 was estimated at 694 days.
These statistics are even more alarming because about one-half the
Board's decisions are not final. Increasingly, the Board is
remanding cases to the VAROs for additional development and
reconsideration. The percentage of cases remanded has increased
substantially. Before 1991, about 20 percent of cases were remanded
annually. This percentage began rising in 1991 to its current rate
of about 50 percent. The number of remands peaked at about 17,000 in
1992; there were about 11,000 remands in 1994. (See fig. 2.2.)
Additionally, in 1994, over 34 percent of appeals being remanded to
the VAROs had already been remanded one or more times.
Figure 2.2: Percent of Cases
Remanded Rose Rapidly after
1990
(See figure in printed
edition.)
Remands can add substantially to Board workload. Board data show
that about 75 percent of the cases remanded to a VARO are again
denied and returned to the Board. Thus, about 8,000 of the 11,000
claims remanded by the Board in 1994 can be expected to be returned;
this is about 20 percent of the 35,500 appeals the Board received in
1994. Furthermore, average processing time is higher for remanded
cases and also has been rising. In 1990, the Board averaged just
over 17 months to process a remanded appeal, but by 1994 the time had
increased by over 60 percent to almost 28 months.
CLAIMS ADJUDICATION PROCESS CAN
BE CUMBERSOME
---------------------------------------------------------- Chapter 2:2
The claims adjudication process in VA has evolved over many years and
seeks to provide the veteran every opportunity to prove his or her
claim and to obtain benefits. The basic process, which starts with
filing a claim with a VARO, allows each claim up to five
considerations, as follows:
VARO staff decide whether to grant the benefits after obtaining and
considering all relevant information, such as military service
and medical records, and in most cases a physical examination by
a VHA physician.
If the veteran notifies the VARO that he or she disagrees with the
decision, the VARO will reconsider the case and if it does not
grant the requested benefits it will issue a statement of the
case summarizing the reasons.
If the veteran still disagrees, he or she can file an appeal. The
VARO will again reconsider the case and if all claimed benefits
still are not granted it will send the appeal to the Board.
However, any amount granted by the VARO is received by the
veteran while the amount under appeal is being decided by the
Board.
The Board makes its decision.\6
If benefits are still denied, the veteran can take his or her claim
to the Court.\7
But this process can become increasingly complex. At any time before
a claim is appealed to the Court, the veteran can ask and will be
given an opportunity for a hearing. If the hearing is before a VARO
hearing officer, the hearing officer may also consider the claim and
grant benefits if evidence in the hearing warrants. If the claim has
already been appealed, a Board member would conduct the hearing and
consider the evidence presented in arriving at a Board decision.\8
Much of this process, such as when veterans may receive hearings and
from whom, is set forth in legislation and regulations.
The veteran may also introduce new evidence during the process,
requiring VA to then obtain that evidence and decide if it is
relevant and, if so, consider it in the decision. Under VA
regulations, unless the veteran shows good cause, all new evidence
must be submitted within 90 days after the VARO notifies the veteran
that his or her appeal has been forwarded to the Board. The Board is
usually liberal in its interpretation of good cause, according to a
Board official; thus, veterans frequently submit new evidence after
the 90-day period.
Also, the veteran may claim a new or increased disability after the
appeal is in process, in which case, unless the veteran waives his or
her right for reconsideration, the VARO must complete any required
additional development, often including a new physical examination,
and then reconsider the claim. Again, the veteran's right to revise
a claim during the adjudication process is set forth in legislation,
regulations, and Court decisions.
Figure 2.3 illustrates this process. If the Board remands the claim
to the VARO, much of the process may be repeated, since the remand
usually will require additional development and reconsideration.
Figure 2.3: The Claims
Adjudication Process
(See figure in printed
edition.)
\a Reconsideration is not necessary before the Court reviews a
veteran's claim.
\b A new appeal is not needed if the claim has already been reviewed
by the Court.
\c In some cases the veteran or VA may appeal to the Court of Appeals
for the Federal Circuit.
Additionally, even if the veteran has received a final decision on a
claim he or she may seek to reopen the claim with the submission of
new and material evidence. This is considered a new claim in VA's
processing system. Board officials pointed out that even if the
evidence is not new and material a decision by both VBA and, if the
decision is appealed, by the Board is required to adjudicate the
claim.
--------------------
\6 Under some circumstances the Board may reconsider its decision,
for example, if the veteran requests reconsideration alleging that
the Board made an obvious error of fact or law. Board data show that
between January and June of 1995 the Board reconsidered about 100
decisions.
\7 Another consideration is possible; veterans may appeal some
decisions of the Court to the Court of Appeals for the Federal
Circuit. However, the circumstances allowing such appeals are
narrow.
\8 In 1994, over 25,000 hearings were held by VARO hearing officers.
An additional 2,700 hearings were held by Board members. The Board
conducted about 4,700 hearings in 1993, but significantly reduced the
number of hearings held in 1994 because of the backlog. The Board
resumed a normal hearing schedule in July 1995.
OFFICIALS CITE THE ACT AND
COURT DECISIONS AS KEY FACTORS
IN INCREASED BOARD WORKLOAD
---------------------------------------------------------- Chapter 2:3
VA officials stated that increased responsibilities imposed on VA by
the 1988 act and Court decisions have contributed directly to the
substantial increase in claims and appeals processing times as well
as to the increased number of remanded decisions. Board officials
stated that the impact of the act and the Court began to be felt in
1991, after the Court began issuing decisions in 1990.
Officials cited increased responsibilities in two areas as having the
greatest impact: the need to fully explain the reasons and bases for
decisions and VA's duty to assist the veteran in filing a claim.\9
Board officials point to the expanded requirements to explain the
reasons and bases for their decisions as one of the key reasons for
the 50-percent reduction in Board productivity. They noted, for
example, that these requirements, such as specifically discussing the
merit and weight given to each item of evidence, have substantially
increased the complexity of each decision in terms of both its length
and the time it takes to prepare it. The decrease in the Board's
productivity is also reflected in a substantial growth in the
per-case costs that the Board incurs to process appeals. As figure
2.4 shows, the Board's per-case cost was relatively stable until
1991, when it began to increase rapidly. The costs grew from about
$400 in 1990 to $1,250 in 1994.
Figure 2.4: Per-Case Cost of
Board Decisions Rising Rapidly
(Fiscal Years 1985-94)
(See figure in printed
edition.)
The increased duty-to-assist requirements fall heaviest on the VAROs,
which have primary responsibility for developing claims. However,
given that the failure to comply with some aspect of duty to assist
is a reason for the majority of remanded cases, the Board, too, feels
the impact. Data from the February 1994 VBA remand study show that
60 percent of the remands involved the need to accomplish additional
case development; that is, in the Board's view, VAROs had failed to
satisfy their duty-to-assist responsibilities by not making
sufficient effort to obtain some type of evidence in support of
appellants' claims. Board data also point to the substantial impact
of the duty-to-assist requirement. The data show that claims are
remanded, on average, for 2.6 reasons. The Board categorizes these
data into 20 reasons; only 4 are cited in over 20 percent of the
cases and 3 of those directly relate to duty-to-assist requirements.
Table 2.1
Major Reasons for Board Remands
Percen
Reasons for remand t
-------------------------------------------------------------- ------
Duty-to-assist requirement
----------------------------------------------------------------------
Medical exam 70
Evidentiary development -VA records 45
Evidentiary development -private medical records 45
Due process development
----------------------------------------------------------------------
Additional issues for consideration by the agency of original 20
jurisdiction
----------------------------------------------------------------------
Source: Board data from April 1, 1994, to March 31, 1995.
Officials also noted that both the act and Court decisions have
placed greater emphasis on procedural requirements, resulting in
remands for failure to follow technical procedures. The following
case serves as an example. A veteran's ex-wife was appealing a VARO
decision not to apportion part of the veteran's pension for the
period of time they were separated before their divorce. The VARO
denied the ex-wife's claim because the veteran had provided financial
support during that time and apportioning his benefits would have
caused an undue financial hardship. The Board remanded the appeal,
directing the VARO to comply with contested claim procedures by
notifying the veteran of the appeal. Yet the claim file indicates
that the veteran was aware of the appeal, because his representative
provided evidence to the Board at an informal hearing on the appeal.
Board and VBA officials agree that in many of these cases the
likelihood of a change in the decision--that is, in the veteran being
granted benefits--is virtually nonexistent. In the past, officials
said, the Board often would not have remanded such cases because the
final result would have been the same. Now, with the possibility of
judicial review before them, the Board does remand the case to ensure
all necessary procedures are followed.
Finally, both Board and VBA officials said that cases often are
remanded so that the VARO can apply a new rule--that is, a rule
articulated by the Court after the VARO makes its decision but before
the Board closes the case. Court decisions must be applied to all
pending cases. Thus, even if the VARO applied the law appropriately
at the time that its decision was made, if an applicable Court
decision is issued before the Board makes a final decision, the Board
will remand the case to the VARO to apply the newly stated
requirements. For example, in one case a VARO denied death
compensation to a veteran's wife based on VA regulations that were in
effect at the time. While the case was pending before the Board, the
Court held that a portion of the regulation used in deciding the case
was invalid. Therefore, the Board remanded the case. Data available
from the Board indicate, however, that this is a relatively
infrequent occurrence. No more than 6 percent of the cases remanded
were because of laws, regulations, or Court decisions that became
effective after the VARO's decision.
--------------------
\9 The Chairman cited additional factors related to the act and Court
decisions that have negatively affected timeliness, such as (1) the
need to obtain outside medical opinions and do more medical research
as a result of decisions limiting the Board's long-standing practice
of using Board physicians' medical opinions; (2) an increase in the
number of Board hearings--many outside of Washington, D.C., to which
Board members must travel--as a result of provisions in the act
giving veterans the statutory right to such hearings; and (3) new
responsibilities to review attorney fee arrangements, again
established by the act.
CURRENT PROCESS MAY CONTRIBUTE
TO PROBLEMS
---------------------------------------------------------- Chapter 2:4
Some officials we spoke to see the process itself as part of the
problem, and the studies we reviewed made several recommendations to
change various aspects of the process.\10
Legislative or regulatory changes are needed before these
recommendations can be implemented, however, and in some cases
concerns have been raised about the possible negative impact on
veterans seeking benefits.
One recommendation limits the time in which the veteran may introduce
new issues to the appeal. The Inspector General found that allowing
veterans to introduce new evidence and issues at virtually any time
in the appeals process caused significant delays in many cases. In
March 1995 he recommended that veterans not be allowed to add new
issues or evidence once the VARO certified the appeal to the Board; a
new appeal would have to be filed on new issues. A recent VBA study
of a small sample of appeals seems to support the potential benefit
of this recommendation. The study found that in all cases the
hearing officer's decision was correct (over one-half the cases had a
VARO hearing); only after the hearing and after new evidence and
issues had been included were problems found. VBA is currently
considering how to implement the Inspector General's recommendation,
including deciding if a legislative change is necessary.
Another recommendation seeks to change the process in another way.
The Board's Select Panel on Productivity Improvement called for the
Board to obtain the evidence needed to decide appeals. Thus if
additional information were needed, the Board would obtain it
directly from the source rather than remanding the claim back to the
VARO to get it. This recommendation is intended to reduce the time
spent preparing cases by eliminating the need for formal statements
between the Board and VAROs about additional required evidence. In
addition, the chairman of the panel noted that the suggested change
would use Board members and staff attorneys to prepare decisions,
rather than VARO staff who are not attorneys, and thus better ensure
that the decisions meet the Court's requirements. VA is drafting
revised regulations to enable it to test this approach.
Another recommendation by both the Select Panel and VA's Inspector
General is to allow VARO hearing officers to conduct hearings for the
Board. The studies point to several positive benefits of this
change, including a reduction of travel costs for Board members and
the opportunity for more cases to be resolved in VAROs. A
legislative change is needed to implement this recommendation.
The Inspector General also recommended eliminating the requirement
for statements of the case for disability claims. Currently, VAROs
must prepare a statement of the case for each claimant who initiates
an appeal. The purpose of this statement is to aid the claimant by
describing the issues on appeal and summarizing the evidence of
record, applicable laws and regulations, and reasons for the
decision. The report suggested that VA's responsibility to provide
the claimant with the legal citations on which the decision is based
could be met by including those citations in the rating decision
rather than in the statement of the case as is currently done.
Again, a legislative change is needed before VA can implement this
recommendation.
Concerns have been raised about some of these recommendations, most
frequently focused on the potential negative effect on those seeking
benefits. Both veterans service organizations and VA's Inspector
General disagree with the recommendation to have the Board obtain
information directly, concerned that already overburdened Board staff
would get further behind. While this concern might be overcome by
adding staff to the Board, perhaps from VAROs, some veterans service
organizations were also concerned that this recommendation would
eliminate one step in the process that could allow cases to be
granted by VAROs. Likewise, the Disabled American Veterans
representative on the Select Panel disagreed with the recommendation
concerning hearing officers, stating that it would prevent the
appellant from having the hearing before the person who would decide
the case.
--------------------
\10 As part of our study of VBA's systems modernization we also have
expressed concerns that VBA has not adequately assessed its business
processes to identify ways the adjudication process itself could be
improved. We are currently working, with VBA's support, to conduct a
business process analysis of claims (not appeals) adjudication, with
an aim to identifying alternative processing approaches. For further
information see: Veterans' Benefits: Acquisition of Information
Resources for Modernization Is Premature (GAO/IMTEC-93-6, Nov. 4,
1992); Veterans' Benefits: Redirected Modernization Shows Promise
(GAO/AIMD-94-26, Dec. 9, 1993); and Veterans' Benefits
Modernization: Further Service Improvement Depends on Coordinated
Approach (GAO/T-AIMD/HEHS-95-184, June 22, 1995).
CONCLUSION
---------------------------------------------------------- Chapter 2:5
The appeals process is very cumbersome and additional efforts to
identify ways to streamline it are warranted. The studies of the
appeals process included in our scope did not fully review the
process itself, much of which is legally mandated. In addition, some
of the process changes recommended in recent studies may be seen by
many as reducing veterans' rights. Decisionmakers will have to weigh
the benefits of providing individual veterans with unlimited access
to the system against the impact that access has on the system as a
whole and all veterans seeking benefits from VA.
INTERACTION AMONG VA ORGANIZATIONS
NEEDED TO ENSURE EFFECTIVE SERVICE
TO VETERANS
============================================================ Chapter 3
Since 1990, at least four studies have made recommendations aimed at
ensuring that VA organizations work together to improve claims and
appeals processing to better serve veterans and their families. VA
officials point to a number of formal and informal meetings and
working groups that they believe meet the intention of the studies'
recommendations.
However, we found evidence that existing mechanisms do not always
identify or are slow to resolve important problems in
adjudication--problems that require input from several organizations
to attain resolution. Our work, for example, identified several
areas in which different organizations either interpreted or applied
laws and regulations differently. These types of differences not
only contribute to inefficient adjudication, but also inhibit VA's
ability to clearly define its responsibilities and the resources
necessary to carry them out. Lack of agencywide consensus about its
responsibilities, in turn, inhibits VA's ability to identify
meaningful solutions to the current claims and appeals processing
difficulties. Meanwhile, veterans wait longer and longer for
decisions on their claims.
VA ORGANIZATIONS OPERATE
INDEPENDENTLY
---------------------------------------------------------- Chapter 3:1
The Board, VBA, and VHA are independent of each other and report
directly to the Secretary. All are bound by the same laws and
regulations, but they also issue independent policy and procedural
guidance. Guidance issued by one does not apply to the others.
Although VHA and VBA provide guidance for claims adjudication by the
58 VAROs through VBA's claims processing manual and VHA's physicians'
guide for conducting examinations, the Board is not involved in
developing or reviewing that guidance. VA's Office of General
Counsel, which also reports directly to the Secretary, may issue
precedent opinions that also are binding on all VA organizations,
including the Board. (See fig. 3.1.)
Figure 3.1: Relationships of
Adjudication Organizations
(See figure in printed
edition.)
There is no one place where the Board's interpretation of laws,
regulations, and Court decisions is set forth and available for other
VA organizations to use in establishing policies and procedures.\11
The Board's role is to render decisions about the legal adequacy of
VA's implementation of laws and regulations, including Court
decisions, in specific cases. Its legal authority does not include
setting policy or issuing rules for VA claims adjudication. As
legally constituted, each of the Board's approximately 60 members is
responsible for drawing individual conclusions from Court decisions
and laws. To state specific interpretations about adjudication
requirements to which all Board members are bound would, according to
Board officials, be beyond the Board's authority.
Yet individual Board remand decisions--which set requirements for VBA
and VHA actions in specific cases--can have broader implications for
VBA and VHA practices in many areas of claims adjudication. A 1991
memo from the Board Chairman to Board members recognizes this
reality. In it he identified several areas in which VARO
adjudication procedures were inconsistent with instructions given to
VAROs in remand decisions. The Chairman indicated that Board members
needed to fully explain the reasons for actions required in remands
so that VARO staff themselves could apply such reasoning to similar
cases. For example, the Chairman noted that
"Articulating the reasons(s) for providing the claims folder to
the [physician conducting the disability examination] will
better enable the [VARO] to discern the situations in which it
is necessary to do so in other cases, thereby eliminating the
necessity for remand for reexamination when the claims folder
had not been available to the [physician]."
VA headquarters does not have a central point that reviews Board
remands or reversals on an ongoing basis that could identify trends
in Board interpretations of Court decisions that signal the need for
changes or clarification in adjudication policies and procedures.
Soon after a Court decision affecting how VAROs adjudicate claims is
issued, a teleconference is held with staff from each VARO and
representatives of VBA, General Counsel, and the Board.
Additionally, VBA, in consultation with General Counsel staff, puts
out written guidance shortly after such Court decisions. This
written guidance has limitations, however. First, the Board does not
participate in developing it. Additionally, the full impact of Court
decisions may not be immediately clear so that this written guidance
may not capture all needed changes. Board interpretations of Court
decisions can evolve over time as individual Board decisions more
fully or clearly articulate the principles included in specific Court
decisions. Currently, these Board decisions are sent directly to the
VARO responsible for the initial decision. Under current procedures,
therefore, staff in each of the 58 VAROs independently implement
Board decisions. One of the conclusions of the recent report from
the Secretary's Court of Veterans Appeals Fact-Finding
Committee--that VARO staff do not understand the underlying legal
principles of Court decisions and, therefore, cannot apply them in
"similar" cases--suggests the current approach has not been
effective.
Figure 3.2 depicts the complex framework of the adjudication process.
Many different organizations or agencies are involved, including 58
VAROs and nearly 60 individual Board members, and they have
requirements or guidance placed on them from many different sources.
Figure 3.2: The Framework of
VA's Benefit Claims
Adjudication Process
(See figure in printed
edition.)
--------------------
\11 Board officials pointed out, however, that Board decisions are
available on CD-ROM and this database could be used to analyze Board
findings and identify trends in interpretations.
RECOMMENDATIONS FOR MORE
INTERACTION NOT IMPLEMENTED,
OTHER ACTIONS TAKEN
---------------------------------------------------------- Chapter 3:2
Four of the studies that we reviewed raised issues that related to
the need for organizations within VA to work together to improve
claims and appeals processing. VA does have a variety of
communication mechanisms and is cognizant of the importance of having
all the organizations working together to support the veteran.
However, VA has not implemented specific recommendations aimed at
improved interaction, believing that existing mechanisms fulfill the
intent of those recommendations.
STUDIES RECOMMEND FORMAL AND
ONGOING INTERACTION AMONG VA
ORGANIZATIONS
-------------------------------------------------------- Chapter 3:2.1
As early as 1990, we identified and reported unresolved problems in
appeals processing that involved more than one VA organization. We
recommended that a focal point be established to lead efforts to
resolve problems and obtain cooperation among the VA organizations
involved in the appeals process. In 1992, VA's Task Force on the
Impact of Judicial Review recommended that representatives from
organizations in VA work together in a small group to develop
strategic, coordinated initiatives responding to judicial review.
This type of concern was echoed more recently by both the May 1994
VBA Analysis of Board of Veterans' Appeals Remands and the June 1994
Board of Veterans' Appeals Select Panel on Productivity Improvement.
The VBA analysis recommended that an active working group be
established with representatives from the Board, VBA, and where
appropriate VHA to address problem areas so that VA as a whole could
provide better service to the veteran. Likewise, the Select Panel
recommended that a steering group composed of VBA, VHA, the Board,
and veterans service organizations meet at least quarterly to
recommend changes concerning the quality and timeliness of claims
processing.
Some officials we spoke to also suggested that the organizations may
have difficulty working together to resolve issues, especially those
that directly affect individual organization resources. Some
suggested that a broader organizational restructuring may be needed.
For example, staff familiar with VBA and Board activities suggested
that working groups comprised of representatives of equal
status--that is, without designating someone to be in charge--are
ineffective. Likewise, the chairman of the Select Panel on Board
Productivity noted that someone above each of the organizations
needed to be involved to ensure resolution of problems.
Others familiar with the system also suggested a variety of changes.
The Chief Judge of the Court, expressing dissatisfaction with VARO
implementation of Court decisions, suggested that VAROs should be
placed directly within the chain of authority of the Court.
Likewise, an official in VA's General Counsel suggested that Board
members be stationed in the VAROs, improving communication and
reducing processing time. Similarly, the chairman of the Select
Panel on Board Productivity suggested that the introduction of the
Court created an entirely new set of circumstances and that the
Board's role may need to be fundamentally changed. He pointed out,
for example, that as the process is currently structured, the Board
and VBA hand appeals back and forth to each other and neither
organization is held accountable for the total action. The Chairman
of the Board has also noted that since the Court became operational
the Board's role is a hybrid--on the one hand judging VARO decisions
and on the other making its own decisions about appealed cases.
While not suggesting a specific resolution of the issue, he has
suggested that it may be necessary to redefine the Board's role.
VA OFFICIALS POINT TO
EXTENSIVE COMMUNICATION
AMONG ORGANIZATIONS
-------------------------------------------------------- Chapter 3:2.2
Officials pointed to a variety of formal and informal communications
involving organization officials and staff. Most involve at least
VBA and the Board and concern claims adjudication.
In general, VA officials noted that representatives of the VA
organizations meet frequently as the need arises. They also pointed
out that many of the authors of the studies we reviewed were
representatives from several key VA organizations, thereby assuring
that they worked together to identify problems and solutions.
More specifically, in the fall of 1994, the Deputy Secretary of VA
started holding monthly meetings with the Chairman of the Board and
the Under Secretary for Benefits to discuss claims processing issues.
The Chairman of the Board also noted that he meets with VA's General
Counsel and the Under Secretary for Benefits as needed to iron out
any problems that come up. Although VA never established a focal
point as we recommended, the Chairman said that the meetings between
key officials, in essence, ensure a focal point for agency actions in
appeals processing. He could not identify specific policy or
procedural changes resulting from these meetings, explaining that the
meetings would be only a part of the process for developing such
changes.
VA officials told us that the ongoing, formal strategic planning
process--preparing a written strategic plan--does not include a focus
on responding to requirements of judicial review. They said that
this recommendation, which was made in September 1992, was not
considered pertinent when the new administration took over in January
1994 with new strategic planning priorities. However, the Chairman
again pointed to the meetings of key organization officials as, in
essence, constituting a strategic planning forum. The Chairman
suggested that under earlier administrations the key VA organizations
were, perhaps, less willing to work together, but that the current
Secretary has put a priority on VA organizations working together to
serve the veteran. He also said that actions such as those taken as
part of the budget process and in response to the Select Panel
recommendations demonstrate that VA is, in fact, addressing issues
resulting from judicial review.
Likewise, the working groups recommended by the VBA Remand Analysis
and the Select Panel were not established, even though officials in
both VBA and the Board had agreed to do so. VA officials reiterated
that many meetings already occur between representatives of the
organizations. Officials cited triad meetings--monthly meetings of
staff from the Board, VBA, and General Counsel--as especially
significant. Officials said that these meetings are intended to
resolve intra-agency issues. Staff members who attend these meetings
told us that the primary focus of the meetings is on individual
cases, for example, agreeing on a Department position on a claim
appealed to the Court, rather than on more general procedural or
policy issues. VA officials pointed out, however, that the need for
policy or procedural changes can be identified from discussions of
individual cases and provided an example of a procedure that was
worked out between the Board and VBA at those meetings. (It dealt
with whether the Board or VBA would notify the claimant about a
particular type of Board decision.)
VA officials also said that they were reluctant to establish working
groups such as that recommended in the Select Panel report to
identify problems because doing so would duplicate the efforts of the
Veterans Claims Adjudication Commission. The Commission is charged
with making recommendations to improve VA's claims adjudication
process. Commission officials told us that they were sympathetic
with VA's reluctance to devote resources to yet another study of the
claims processing issue or to develop solutions now that might be
overcome by recommendations of the Commission. However, they were
uncertain about the extent to which their study and recommendations
would include the overall organizational structure or interaction
among the various VA organizations responsible for claims
adjudication. They also said that it may be inappropriate for VA to
postpone actions to identify and resolve ongoing problems pending the
Commission's report.\12
--------------------
\12 These officials also said that it was highly unlikely that their
study or recommendations would resolve questions of differences of
interpretations of VA's responsibilities, such as those discussed in
the following sections.
ORGANIZATIONS' INTERPRETATION
OF SOME VA RESPONSIBILITIES ARE
INCONSISTENT
---------------------------------------------------------- Chapter 3:3
A key area requiring cooperation and communication among VA
organizations is ensuring consistent interpretation and application
of legal requirements within VA. Doing so is critical to fair and
efficient claims adjudication. Yet despite the extent of ongoing
discussions, we found evidence that organizations continue to
interpret some requirements differently. For example, we found
differences in interpretations in several aspects of VA's duty to
assist veterans in filing claims. Two major areas of concern
relative to VA's duty to assist are the sufficiency of documentation
and adequacy of medical examinations required to support a veteran's
claim.
OFFICIALS HAVE DIFFERENT
VIEWS ABOUT REQUIREMENTS FOR
DOCUMENTATION
-------------------------------------------------------- Chapter 3:3.1
VBA officials have indicated concerns about the Board's
interpretation of VA's responsibility to assist veterans in
developing their claims as stated in some cases remanded to VAROs.
In discussions with us, for example, they questioned Board directions
to (1) try repeatedly to obtain information from sources such as the
Social Security Administration and the military services, (2) solicit
from the veteran information about all records that might possibly
exist rather than relying on the veteran to identify pertinent
information and records, and (3) obtain records that officials know
will not support the veteran's claim.
CASE STUDY EXAMPLE
-------------------------------------------------------- Chapter 3:3.2
One case we discussed with VBA and Board officials demonstrates some
of the concerns that VBA raised.
The veteran maintained he was struck in the back by shrapnel during
an explosion on a ship in November 1944 or February 1945. He said
that he sought treatment in sick bay and has suffered from back
problems since his discharge. The veteran filed for disability in
1946, but was denied service connection because the condition was not
shown during service. The decision was not appealed and became
final.
In October 1991 (45 years after the initial claim was denied) the
veteran filed to reopen his claim. He requested a VA examination but
did not submit additional evidence. The claim was denied in November
1991.
The veteran appealed in July 1992, at which time he submitted new
evidence, including service personnel records that indicated that he
had a scar on his back before entrance into the service.
At a Board hearing in December 1992, the veteran submitted additional
evidence, including a statement from a service friend and evidence of
other care received from private medical providers. The friend said
that he remembered hearing that the veteran was hit with shrapnel
during an explosion.
The Board remanded the case to the VARO in January 1995. The
following summarizes the actions required by the Board in this
remanded case and comments by VBA and Board officials. Those
comments highlight some of the potential areas of disagreement.
BOARD REMAND
ACTION 1
------------------------------------------------------ Chapter 3:3.2.1
The VARO should request from the veteran as much detail as possible
about the explosion and injury, such as dates, times, units, and the
names of others involved. The VARO should prepare a summary of the
veteran's account and send it to the service department or the
official depository of U.S. Navy records. The VARO should request a
search to ascertain whether there is evidence to corroborate the
explosion and location of the veteran at the time of the explosion.
OFFICIALS' COMMENTS
------------------------------------------------------ Chapter 3:3.2.2
VBA officials said that they normally would not request this detail
from the veteran. If the veteran volunteered the information, they
would record it and verify it, if possible.
Board officials said that although the records requested do not
specifically support the claim, they could help support the veteran's
general credibility.
BOARD REMAND
ACTION 2
------------------------------------------------------ Chapter 3:3.2.3
The VARO should make additional attempts to obtain copies of Daily
Sick Reports or any other document from the veteran's service unit
for the dates of treatment he reports.
OFFICIALS' COMMENTS
------------------------------------------------------ Chapter 3:3.2.4
VBA officials said they would not normally obtain these records;
Daily Sick Reports only show that the service member reported to sick
bay, but do not give details about the case.
Again Board officials said the information would help establish the
veteran's credibility.
BOARD REMAND
ACTION 3
------------------------------------------------------ Chapter 3:3.2.5
The VARO should request from the veteran the names and addresses of
all health care providers who have treated him for a back disorder
since his discharge. After securing the necessary releases, the VARO
should obtain copies of all treatment reports and hospital treatment
folders not already on file. If any records identified by the
veteran are not available, that fact and the reason(s) should be
annotated in the claims folder.
OFFICIALS' COMMENTS
------------------------------------------------------ Chapter 3:3.2.6
VBA officials said that they would not seek this information and
normally would not obtain these records. They believe that the issue
is service-connection, not whether the veteran currently has a
disability.
Board officials noted that under Court decisions, VA has a duty to
assist the veteran in developing the facts pertinent to a
well-grounded claim, including all medical evidence, even where the
additional evidence submitted is inadequate to reopen the claim.
BOARD REMAND
ACTION 4
------------------------------------------------------ Chapter 3:3.2.7
After actions 1 through 3 have been completed, the veteran should
receive a VA examination to determine whether he has residuals of a
shell fragment wound to the back. A copy of this remand and the
claim folder must be made available to and reviewed by the examiner
before the examination. The examiner should render an opinion as to
the probability that any current back disorder is the result of a
shrapnel wound to the veteran's back during service. The examiner
should provide complete rationale for all opinions and conclusions
reached.
OFFICIALS' COMMENTS
------------------------------------------------------ Chapter 3:3.2.8
VBA officials said they do not believe a new exam is pertinent to the
issue and if ordering an exam they would not normally provide the
claim file or seek the medical opinion specified by the Board.
Board officials said that the veteran requested a VA exam and VA's
duty to assist includes the duty to conduct a thorough and
contemporaneous exam. They also said that because the Court has
ruled that the Board must have independent medical opinions, they
need the VHA physician to state an opinion about the relationship of
any current disability to the alleged service incident. Also, a
thorough exam, as defined by the Court, includes the review of the
entire file by the physician.
BOARD REMAND
ACTION 5
------------------------------------------------------ Chapter 3:3.2.9
The VARO should formally adjudicate whether new and material evidence
has been submitted to support reopening the claim.
OFFICIALS' COMMENTS
----------------------------------------------------- Chapter 3:3.2.10
Both VBA and Board officials agreed that before the 1988 act and
several Court decisions, the Board would not have remanded this case.
The Board would have determined if the evidence was new and material
and if not would have upheld the region, even though the VARO may
have neglected to articulate its decision as to whether the evidence
was new and material.
VBA officials said that the type of development required by the Board
in this and other similar remand decisions is, in many cases, either
futile (since the requested records will not be found) or is not
pertinent to the specific issue at hand. Board officials agreed and
also said that even when the additional requested evidence is
obtained, the benefits are often not granted. However, they stated
that the additional development is needed to meet the act's
requirements for duty to assist as interpreted by the Court. They
stated that VA cannot tell before reviewing the documents if the
benefits would be granted and, further, that Court decisions do not
limit VA's responsibility for development (part of VA's duty to
assist) to cases where the benefits might be granted. They said that
they could not tell which cases might be appealed to the Court and,
therefore, they believed VA must Court "proof" all decisions. Thus
this level of development is needed to ensure that the Court will not
remand a decision to the Board.
In a meeting with both VBA and Board officials, VBA officials stated
that they did not know of any general disagreements they had with the
Board's interpretations but that they did disagree in individual
cases such as that cited above. However, they also told us in a
separate meeting that although this case is somewhat atypical in
terms of the number of actions required, it is typical of the types
of actions seen in many of the remand decisions. They said that they
would not follow the procedures outlined in this remand in other
cases unless again directed to do so in a remand decision; current
regulations do not require them to do so. Given this, it seems
unlikely that the goal stated in the 1991 memorandum by the
Chairman--that VBA staff will use remanded decisions to understand
and apply the legal principles to like cases--will be met in these
types of cases.
OFFICIALS DISAGREE ABOUT
REQUIREMENTS FOR MEDICAL
EXAMINATIONS
-------------------------------------------------------- Chapter 3:3.3
One aspect of duty-to-assist requirements demonstrates the existence
of this disagreement and its impact--the requirements for medical
examinations. As discussed in the case study above, Board officials
indicated that they have interpreted Court decisions since 1991 to
require that in the majority of cases physicians conducting
disability compensation medical examinations have the entire claim
file so that the examination can be a fully informed (thorough) one.
In contrast to this requirement, however, guidance used by VBA
adjudicators in requesting examinations specifically states that,
normally, physicians will not be given the claim file. Officials
from VBA said that no one has clearly defined what is necessary for a
thorough examination and that VAROs may be accepting a somewhat lower
standard for thorough than the Board.
Similarly, during our discussion with VBA and Board officials about
the above case, Board officials indicated that for essentially all
cases in which service connection is an issue, the Board needs the
physician to state an opinion about the likely relationship of any
current disability to events that occurred while in service.
However, the guidance provided to VHA physicians does not state that
such opinions should be included. The Secretary's Court of Veterans
Appeals Fact-Finding Committee also discussed this problem, noting
that the VHA physician's role in the disability claims process has
been changed and expanded by the Court. The Committee concluded that
"Physicians clearly must be assisted to better understand their
role in the adjudicative process and the legal implications of
their statements."
This example demonstrates another troubling aspect of interaction
among the organizations. VBA officials were apparently unaware that
the guidance did not conform to the Board's interpretation of an
adequate examination. When we raised this issue during our review,
VBA officials said that they had not heard the Board indicate that
the law required the claim file to be available for virtually every
examination or that an opinion about the origin of any disability be
stated.
Other medical examination issues concerning inconsistent
interpretations have also been long-standing concerns. One relates
to how current a medical exam needs to be for cases sent to the
Board. In 1990, we reported that VAROs were using different
standards; some delayed decisions to obtain new exams for appealed
claims, others did not. We recommended that VA provide VAROs
guidance on this issue. The 1991 Chairman's memorandum to Board
members pointed to additional issues related to inconsistencies
between Board interpretations of requirements and VARO staff
practices. These included the need for examinations by specialists,
the need for the physician to review the entire claim file before
completing a physical examination, and the need for VARO's to "try
again" to obtain information. And, again in 1994, the VBA Analysis
of Remands recommended that the Board and VBA work together with an
immediate aim of developing guidance on medical examinations,
including guidance on age of examinations and need for specialty
examinations, issues raised in 1990 and 1991.
Having VBA policies and practices that differ from Board
interpretations contributes to inefficient claims adjudication and to
the remand rate. However, Board officials cautioned that appeals may
be remanded for several reasons and changing policies and practices
in the areas cited above may not affect the remand rate overall. For
example, even if the claim file has been provided and an opinion
expressed, if the examination was inadequate for other reasons, such
as needing a specialty examination, the case would be remanded.
CONCERNS AND INCONSISTENCIES
ARE RESOLVED SLOWLY, IF AT ALL
---------------------------------------------------------- Chapter 3:4
VA's Office of General Counsel can issue interpretations of VA's
responsibilities that are binding on all VA organizations, including
VBA and the Board. However, VA organizations have been slow to
identify questions needing General Counsel opinions and slow to seek
resolution once they have been identified.
If questions about interpretations arise between the Board and VBA or
VHA or if requirements need to be clarified, the organizations
involved can request a precedent opinion from the VA General Counsel.
In addition to the laws and regulations, each of the organizations is
bound by these General Counsel precedent opinions.\13 However, for
issues to be raised to the General Counsel, they must first be
identified as problems. As discussed above, these inconsistencies
are not always identified under the current organizational structure
and adjudication process.\14
But even after problems are identified, the agencies are slow to
react. For example, although we pointed out the need for guidance on
currency of examinations in 1990, VBA did not request and receive a
General Counsel decision on this issue until 1995. A Board official
indicated that although the issue of age of the examination was
raised in 1990, the issue did not have any significant impact on
claims and appeals processing until much later, at which time a
General Counsel opinion was requested and obtained. However, the May
1994 VBA Remand Analysis raised concerns about Board directions
concerning age of the examinations (that is, the Board was remanding
cases because the examination was old), yet it took until February
1995 for VBA to seek a General Counsel opinion.
The 1994 VBA Remand Analysis itself demonstrates other difficulties
in interaction among VA organizations. Although the study was
completed in May 1994, VBA did not send a copy of the report to the
Chairman of the Board until late August 1994, with a letter
apologizing for forgetting to send the study.\15 The Chairman
immediately responded, agreeing to the recommendation to establish a
working group to develop guidance on adequacy of examinations, but no
such group was formed. Neither Board nor VBA officials could provide
a reason why it was not established but suggested, perhaps, that no
one took the lead.
Likewise, some issues raised in the Chairman's 1991 memorandum
apparently are still not resolved. For example, the Chairman
indicated that procedures about obtaining specialty examinations were
not always consistent with Board interpretations, yet one
recommendation of the 1994 VBA remand study was that VBA and the
Board needed to develop guidance on this issue.
--------------------
\13 Organizations are also bound by instructions from the Secretary,
though in our discussions VBA, Board, and General Counsel officials
all pointed to General Counsel opinions as the mechanism for
resolving differences in the issues we were discussing.
\14 For example, it was not until after our discussion of the issue
of providing the claim file to physicians conducting examinations
that VBA requested a General Counsel precedent opinion to clarify the
requirement. VA's General Counsel issued the opinion in July 1995.
\15 VBA also stated that it had, with Board assistance, conducted two
other remand studies (in December 1994 and February 1995). Board
officials said, other than providing the remand files, the Board was
not involved in the study and was never informed of VBA's findings.
VBA officials explained that the studies had been inconclusive and
there were no results to communicate to the Board.
LACK OF CLEARLY DEFINED
REQUIREMENTS HINDERS VA'S
ABILITY TO ASSESS AND SOLVE
APPEALS PROCESSING DIFFICULTIES
---------------------------------------------------------- Chapter 3:5
A clear and consistent agencywide interpretation of VA's
responsibilities is essential to resolving the claims adjudication
dilemma. Additionally, a clear understanding of VA's
responsibilities is necessary for a meaningful analysis of the
resources needed to meet those responsibilities and, in turn, for
developing solutions to overcome problems, including resource
constraints.
Both Board and VBA officials have indicated concern that their
organizations do not have the resources to meet the requirements set
forth in the act, especially Court and Board interpretations of those
requirements. An official in the Office of the Secretary stated that
he is not yet convinced that resource limitations cannot be overcome
by improved efficiencies and other initiatives, but other officials
in the organizations responsible for claims processing are less
optimistic. A meaningful assessment of needed resources, however, is
not feasible without a clear understanding of responsibilities.
Board officials emphasized to us that although continued and improved
interaction among VA organizations is important, they believe it is
unlikely to solve the appeals adjudication backlog. Board officials
are concerned about the resources the Board must invest to meet
requirements set forth in the act and Court decisions. They pointed
to increased responsibilities, especially the requirement to fully
explain reasons and bases, for the Board's substantially reduced
productivity. The Chairman stated that in spite of the many
initiatives under way to improve Board efficiency (see app. I),
without substantial increases in staffing, he did not expect the
backlog of appeals to be appreciably reduced. He said that even with
added resources it would take many years to get the backlog to a
manageable size.\16
Likewise, VBA officials stated that their organization does not have
the resources to apply the requirements set forth in some Board
remands to all like cases. According to officials, the remands often
require substantial time and resources for development. For example,
officials noted that the development required in the above case study
would require substantial resources even for that one case.
Similarly, during our discussion with Board and VBA officials
concerning the need for the VHA physician to have the claim file, VBA
officials said that doing that in most cases raises resource issues,
including the time it takes to transfer the file and the difficulty
in keeping track of the file once it leaves the VARO.\17 VHA also may
have difficulty meeting this requirement. For example, the
Secretary's Court of Veterans Appeals Fact-Finding Committee reported
in February 1995 that VHA often uses contract physicians to perform
the physical examinations on veterans claiming disability
compensation. The report noted one such physician as saying that VA
did not pay him enough to spend the time it would take to review the
claim file, even if VBA sent it.
The impact that various interpretations of requirements has on
resources underscores the need for organizations to agree on what
those requirements are. Board decisions directly affect VARO and VHA
workloads; for example, remanded decisions specify activities for
VAROs in individual cases and can require additional examinations by
VHA. More generally, Board decisions--interpreting requirements set
forth in law and Court decisions--can expand the level of effort
VAROs must expend in assisting veterans in filing claims. Similarly,
VARO actions directly affect Board workloads. For example, the
increase in the number of remands increases the Board workload in the
form of claims returned for a second Board review. Yet under the
current legal and organizational structure, neither organization has
any responsibility for the amount of work it "causes" for the other.
A Board official said that the Board--like the Court--decides cases
on their merit and the Board cannot legally change its interpretation
of the law because it is administratively inconvenient or infeasible
for VBA.
--------------------
\16 The Department, recognizing the need for more staff, included a
small increase (28 staff) for the Board in the 1996 budget request.
The Congress was still considering VA's budget request in September
1995.
\17 Keeping track of claims files is a recognized problem in VA.
Systems are being developed to better track them, but officials noted
that these systems would allow the VARO to know what VHA facility it
had sent the file to, but would not necessarily ensure it could be
retrieved easily.
RECENT ACTIONS COULD SERVE AS
CRITICAL FIRST STEPS
---------------------------------------------------------- Chapter 3:6
In May 1995, after several discussions we had with VBA and Board
officials, VBA initiated two actions that could represent important
first steps in improving interaction among the VA organizations and,
in turn, service to veterans. But much remains to be done to bring
effective closure to these efforts.
First, following a suggestion we made in April 1995, VBA conducted a
study, with assistance from the Board, to determine how well VAROs
are complying with Court precedent and procedural guidance. The
study, completed in June 1995, identified areas where VARO actions
were not consistent with Board interpretations and recommended that
guidance to VAROs be improved. But the study also confirmed our
concerns about the complexity of the appeals process and supported
the need for continued cooperation between the Board and VBA staff in
developing guidance and interpreting requirements.
VBA's second action may provide a forum for this cooperation. On May
15, 1995, the Under Secretary for Benefits asked the Under Secretary
for Health, the Chairman of the Board, and the General Counsel to
appoint representatives to a permanent working group to address and
resolve claims processing problems. The Under Secretary pointed to
information we supplied about failure to implement previous
recommendations calling for intra-agency efforts as the impetus for
establishing this group. The working group held its first meeting on
July 13, 1995.
STUDY FINDS NO DIFFERENCE IN
ORGANIZATIONS'
INTERPRETATIONS BUT SEES
NEED TO CLARIFY GUIDANCE
-------------------------------------------------------- Chapter 3:6.1
For the May 1995 study, Board staff attorneys and VBA staff
independently reviewed a small sample of appeals recently certified
by VARO staff to be ready for Board consideration. (With the current
backlog of appeals, the Board would not expect to officially review
these claims for another 2 years.) VBA recognizes that this was not a
statistically representative sample, but sees it as a sufficient
number to identify any frequently occurring problems. Both staffs
reviewed 115 appeals.\18 A single claim can be appealed on several
issues. VBA staff identified 185 separately appealed issues in the
115 claims; Board staff identified 193 issues. There were 166 issues
that both staffs identified and reported on. They reviewed the
appeals separately, then met to discuss general observations.
VBA concluded, based on the Board staff results, that if these cases
came to the Board now, about 42 percent of the appeals would be
remanded, a somewhat lower percentage than the 1994 rate of about 48
percent, but still troubling.\19 The reviewers identified areas in
which they believe guidance to VAROs needs to be clarified. Key
areas include failure to address issues, inadequate development,
inadequate examinations, failure to assess all medical evidence,
inadequate handling of new and material evidence issues, failure to
issue supplemental statements of the case when appropriate, and
improper identification of issues. Officials stated that the
problems occurred because VARO and VHA staff failed to follow
existing guidance, not because guidance was inconsistent with Board
interpretation of requirements or Board and VBA staffs' judgment
varied.
The study recommended that guidance be improved and, in several
instances, sought participation by organizations other than VBA to do
so. Two recommendations involving the Board are for development of
(1) a checklist for use by VARO staff in certifying an appeal as
ready for Board review and (2) a training program on appeals.\20 The
Chairman of the Board has agreed that to the extent resources permit
the Board will work with VBA in implementing the recommendations that
included the Board. The study also recommended that a focus group of
VHA physicians and staff review the issue of inadequate examinations,
which this study again found to be a significant problem. The study
report notes that using the expertise of VHA physicians will provide
VBA and the Board valuable information on the examination process and
that working in unison will result in the quality examination
necessary.
--------------------
\18 VBA selected two appeals from each VARO. Of the 116 cases, 115
were reviewed.
\19 The data may actually show the potential for an increase in the
remand rate. Board staff emphasized that they did only a cursory
review of the appeals and a full review might identify other
problems. Also, overall, at least one of the groups of reviewers
cited a high or moderate chance for remand in 64 percent of the
appeals.
\20 VBA also has sent to each VARO a list of tips on avoiding remands
prepared by the Board. This list, though providing limited
explanations for actions included, covers many of the issues
identified in prior reviews of remands and this review of recently
certified cases.
CONTINUED FOCUS ON
INTERPRETING
RESPONSIBILITIES AND
RESOLVING PROBLEMS IS
CRITICAL
-------------------------------------------------------- Chapter 3:6.2
The VBA study of certified appeals identified significant issues and
could serve as a solid basis for intra-agency action and an initial
focus for the newly established permanent working group. But the
study results themselves point to the difficulties that VA may face
in providing an agencywide interpretation of key responsibilities;
they indicate that VBA and Board reviewers may have seen requirements
with regard to some responsibilities differently. Likewise, the
study itself was of limited scope and may not be sufficient to bring
to light all significant problem areas.
Although Board and VBA reviewers apparently agreed on key areas
needing attention, their views of specific appeals were in some cases
very different. For example, for almost one-third of the 166 issues
both groups assessed, one of the groups cited a high or moderate
chance of remand and the other cited no chance. For 17 percent of
the issues the difference was between a high chance and no chance.
Similarly, although both Board and VBA reviewers individually
concluded that about one-half of the issues had no chance of being
remanded, they were often different issues. They both saw no chance
in only 26 percent of the same issues.
In some cases the reviewers even identified different issues as being
under appeal; overall, VBA staff identified 19 issues that the Board
did not identify and Board staff identified 27 issues that VBA did
not identify. Although in some cases this resulted from one or the
other separating out issues that the other combined (4 individual
orthopedic issues as opposed to 1 combined issue), in others, very
different issues were involved.
These results raise questions about the consistency with which VBA
headquarters staff and Board staff view legal requirements. Although
the two groups agree on the broad requirements, such as the need to
better develop claims, meet duty-to-assist responsibilities, and
ensure adequate examinations, they may not agree on the specifics of
how or when to apply these requirements. For example, both raised
issues of how the VAROs handled new and material evidence issues, but
not always on the same appeals.
These are important issues. If staff work together to discover the
reasons for different assessments of cases, they may be able to more
clearly identify and communicate what is required in different types
of situations. Their review of the same cases may also provide a
consistent basis for discussion to help to develop guidance that can
be clearly understood. However, this study by itself may not be
sufficient. This one-time effort will not identify problems that
might arise over time as Court and Board interpretations are further
developed through individual decisions.
Additionally, review of completed Board remands also may be needed.
A review of recently certified appeals, as was done in this study,
can provide a better picture of the adequacy of current VARO actions
but may not surface differences between the organizations with regard
to all issues. The case study cited earlier serves to demonstrate
this possibility. Even if both parties agreed that the case should
be remanded and an examination obtained, VBA officials disagreed with
some of the specific actions the Board required as part of the
remand, such as soliciting information on all past health care
providers and obtaining those records. We found disagreement about
these types of actions--which may not be the cause of the remand but
are specified in Board decisions as actions required. Actions such
as these can have a significant impact on the resources as well as
the time necessary to adjudicate the appeal. These resource and
timeliness issues also have implications for other claims if they are
to be applied in like cases.
CONCLUSIONS
---------------------------------------------------------- Chapter 3:7
VA's current legal and organizational structure, the complex nature
of the claims adjudication process, and the current fluid environment
brought about by the Veterans' Judicial Review Act and the Court make
effective interaction among VA organizations imperative. Although
the Board, VBA, and VHA have unique roles, they are intimately linked
in the claims and appeals adjudication process. VA has many internal
forums for interaction among these organizations, but greater effort
is needed.
There are many procedural and interpretive areas in which multiple VA
organizations are involved. Ensuring clear and consistent
interpretation of VA's adjudication responsibilities, such as
duty-to-assist requirements, is one obvious area needing the
involvement of all the organizations involved in adjudication. If
VBA and VHA policies and practices and Board interpretations of
legislative and judicial requirements are not consistent, the
likelihood of remands and reversals and the resulting inefficient
claims processing increases. VA needs to clearly define what it
believes is required and do so in a way that ensures that the Board,
VHA, and VBA follow requirements consistently. Because Court and
Board interpretations evolve over time, this must be an ongoing
process.
The recent VBA and Board review of appeals certified as ready for
Board review by VAROs is a solid first step in identifying issues
that currently require clarification. Ensuring resolution of these
issues could be an important focus of the recently established
permanent working group. The Claims Adjudication Commission also
offers the possibility of recommendations for significant
improvement, having looked at the adjudication process in its
entirety, not just from one organization's perspective.
But difficulties are likely to remain. VA organizations have agreed
to work together and to clarify guidance in the past, but these
actions were not always completed. It is also unlikely that the
Adjudication Commission recommendations will address the detailed
problems we found in interpretation of VA's responsibilities. And,
short of action to substantially alter the organizational structure
of VA--for example, to abolish the Board or consolidate claims
adjudication functions into a limited number of VAROs--the need for
effective interaction among VA organizations will continue.
Both the historical and current difficulties in interaction reinforce
our 1990 recommendation that a focal point be established for the
appeals process as a whole. The nature of the current problems and
possible solutions suggest that the only way to ensure that
intra-agency issues are identified and resolved may be for that focal
point to be designated at the Department level. Such a focal point
could help the Department ensure that at this time and in the future
promised cooperation leads to closure. More importantly, the appeals
process faces significant difficulties; clearly defining
responsibilities is a beginning step, not a full cure. If
responsibilities, once clearly defined, are such that one or more of
the organizations does not have the resources to carry them out, new
solutions will be needed. They could include amending legislation to
reduce or at least better define VA's responsibilities, obtaining
more resources, or reconfiguring the agency. The nature of the
problems and of their possible solutions suggests the need for active
involvement above the level of the autonomous organizations--each of
which views the claims and appeals process in terms of its unique
responsibilities and capabilities.
RECOMMENDATION
---------------------------------------------------------- Chapter 3:8
The Secretary of Veterans Affairs should designate a Department-level
official to monitor actions by the Board, VBA, and VHA to identify
and resolve intra-agency impediments to efficient claims and appeals
processing. This individual should be charged with making
recommendations to the Secretary, if necessary, to ensure resolution
of problems. The recently established permanent working group could
serve as the focus of these monitoring efforts and the designated
official could report to the Secretary and make recommendations about
problems that the working group is unable to effectively resolve.
A first priority of this official should be monitoring the progress
of the organizations in implementing the recommendations of the VBA
study of recently certified appeals and ensuring that VBA and VHA
policies and practices are consistent with Court and Board decisions.
These efforts should be ongoing to ensure such consistency, obtaining
General Counsel opinions where needed and to ensure that any resource
or organizational difficulties are identified and resolved.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 3:9
In a meeting on August 15, 1995, VA's Chief of Staff, the Under
Secretary for Benefits, the Chairman of the Board of Veterans'
Appeals, and other key officials commented on a draft of this report.
The VA officials acknowledged that appeals processing is one of the
most serious problems currently facing the agency. They stated that
they concurred with our recommendation and that the Deputy Secretary
sees clearly identifying and resolving problems with the claims
adjudication process as his responsibility. They see the
recommendation as reemphasizing the importance of efforts under way
by the Deputy Secretary and other key officials to solve this
problem.
The officials said that they have been focused on the overall issue
of VBA/Board timeliness for some time and that efforts to improve the
timeliness of VARO claims processing have been successful. They said
that emphasis and resources will continue to be devoted to improving
VBA timeliness, but that increased attention now has been placed on
the Board and on the VBA/Board interface. The officials indicated
that they are committed to reducing appeal processing time
significantly. They noted that three presidential appointees
confirmed by the Senate are directly responsible to the Secretary and
Deputy Secretary for taking the steps necessary to improve timeliness
and that the Deputy Secretary is actively involved in ensuring that
each facet of the adjudication structure works with the common goal
of putting veterans first. Each official understands the necessity
for early identification and resolution of inconsistent
interpretations of law. They also noted that specific actions to
ensure identification and resolution of problems have been suggested
in the many studies already done. Officials said that many of these
ideas have been or will be implemented and that those discussed in
our report are good ideas. They also said that the actions that are
not being done need to be done, and those that are not being done
well must be improved. They believe that the necessary mechanisms
are in place to identify any inconsistent interpretations and resolve
them through the General Counsel. Officials said that time will tell
if this increased awareness and focus will resolve the problem.
We agree that the active involvement of the Deputy Secretary,
especially with an increased focus on appeals, could have a positive
impact on resolution of appeals problems. This is especially true if
actions previously recommended are implemented and if, through
existing mechanisms, such as the permanent working group, VA actively
pursues the issue of inconsistent interpretations and other interface
problems. VA officials, however, did not offer any details of
actions expected to be taken.
RECOMMENDATIONS AND ACTIONS TO
IMPROVE STAFF PERFORMANCE AND
PROCESS EFFICIENCY
=========================================================== Appendix I
This appendix summarizes the key recommendations made in the seven
studies that we reviewed that are not directly related to interaction
among VA organizations. Most of those recommendations relate to
improving staff performance or improving the efficiency of the
current process.
Several studies have identified ways to improve staff performance at
VBA and the Board by means of guidance, training, and performance
standards. Although VA has begun or completed a variety of
improvement efforts, determining their adequacy is difficult.
Studies also have recommended many changes to increase process
efficiency. VA has implemented some of these recommendations and, as
a result of other legislation and management initiatives, has plans
for implementing others. However, the Board Chairman said that in
spite of these efforts to improve staff performance and increase
efficiency, the problems of appeals backlog and processing delays
will continue.
EFFORTS TO IMPROVE GUIDANCE AND
TRAINING DIFFICULT TO ASSESS
--------------------------------------------------------- Appendix I:1
A key focus of several of the studies was the need to ensure that
regional staff fully and accurately develop and decide claims.
Poorly developed claims have been recognized as an important cause of
slow claims processing in general and, more specifically, remanded
cases because most require some additional development. The studies
made a variety of recommendations to improve the way that staff
develop cases, to increase the number of staff available to make
rating decisions, and to improve guidance.
The Secretary's Court of Veterans Appeals Fact-Finding Committee
concluded that VA's guidance was adequate but that training was
inconsistent and not all VARO staff were receiving training that
allowed them to understand and apply legal concepts. In fact, one of
the problems identified was that VARO staff were increasingly
unprepared to meet the more complex requirements being imposed by the
Court.
VA has undertaken or planned many efforts to improve guidance and
increase training for VARO adjudication staff. For example, VBA has
developed training guides, increased centralized training, and
created training materials for use by VAROs. VBA has recently
completed a manual to use as a reference guide when developing
claims. It is organized by type of claim and can be left open so
that staff can refer to the checklists while they are developing
claims. As discussed above, VA also has procedures to communicate
new Court requirements to VARO staff within 4 to 8 weeks. VA plans
to develop a multivolume Rating Specialist Training Guide and, as the
Rating Schedule for each body system is rewritten, they will also
develop 1- or 2-day training programs for each body system.
Other related activities include implementing a new position of
rating analyst technician to help ensure that development is complete
before the claim is rated and developing a certification process for
rating specialists. Likewise, VA routinely modifies performance
measures and workload standards so that they more realistically
reflect development requirements.
Some recommendations also addressed the need for performance
standards and training for Board staff attorneys and Board members.
VA is in the process of implementing these recommendations. New
attorney performance standards went into effect in April 1994, and
the first round of annual performance evaluations has been completed.
A training committee has been established, and attorney training has
begun. Performance standards for Board members were established for
the first time in February 1995; no performance assessments have been
done yet.
Because the training is relatively recent and the guidance is new,
evaluating their effectiveness is difficult. However, an even
greater concern is whether the training and guidance are addressing
the right issues. Issues raised in recently remanded cases may not
be indicative of current regional office activity because the Board
is currently looking at claims that were decided by VAROs about 2
years ago. This issue was highlighted in Board member comments to
the Secretary's Court of Veterans Appeals Fact-Finding Committee.
They noted that measuring current VARO compliance was difficult
because of the age of the cases they were reviewing. To address this
concern, in June 1995, staff from VBA and the Board completed a
review of 115 appeals recently certified by VAROs as ready for Board
review. As discussed in chapter 3, they concluded better guidance
and training are needed in several areas.
Evaluating the effectiveness of the training and guidance is also
difficult because determining how many staff have been trained or
received guidance is not possible. For example, although
teleconferences are held monthly to discuss new Court decisions, no
requirements exist concerning which VARO staff should attend those
conferences and no records are kept about who actually does attend.
In addition, trainers from VBA will sometimes train one or two staff
from a VARO who will then be responsible for training others in their
VARO. Although records are maintained about staff who participate in
centralized training programs, records are not routinely maintained
about who has actually received which training in VAROs.
STEPS TO IMPROVE PRODUCTIVITY
TAKEN AND PLANNED, BUT BACKLOGS
EXPECTED TO CONTINUE
--------------------------------------------------------- Appendix I:2
As early as 1990, we recommended that VA take steps to improve the
timeliness of claims processing. Increasing backlogs and reduced
timeliness since then have focused more attention on the efficiency
of claims adjudication. For example, the November 1993 Blue Ribbon
Panel's mission was to identify ways to improve timeliness and reduce
the claims backlog. Subsequent studies of the appeals process,
including the June 1994 Select Panel on Productivity Improvement,
have reiterated the Blue Ribbon Panel's recommendations.\21
As a result of legislative and procedural changes, VA has identified
actions that address study recommendations. Some actions (in
addition to those implemented as a result of the Blue Ribbon Panel)
have already been taken.
As a result of the Board of Veterans' Appeals Administrative
Procedures Improvement Act of 1994, enacted in July 1994,
appeals may be assigned to either an individual member of the
Board or to a panel of no fewer than three members. This ended
the 60-year requirement that decisions be issued by a panel of
three members. VA estimates that this change will result in a
25-percent increase in productivity at the Board.
The Veterans' Benefits Improvements Act of 1994, enacted in
November 1994, permits the Board to screen cases on appeal at
any point in the decision process to determine whether the
record is adequate for decision purposes. This procedure makes
it possible to send files back to the responsible VARO so that
they can be properly developed while waiting to come before a
Board member.
A variety of reference materials are available on-line or using
CD-ROM technology, both in VAROs and at the Board. VAROs are
able to access a package of personal computer-based national
standardized letters; Court decisions; VBA policies and
procedures; and VBA program directives, manuals, and circulars.
Board staff have access to 1992 and 1993 Board decisions, Court
decisions, and the Physicians Desk Reference via CD-ROM and such
reference documents as the Board Chairman's Memoranda and
applicable federal regulations on-line.
One recommendation from the Select Panel was to revise the
timeliness measurement system to measure the entire length of
time that appeals are processed. This measurement has been
revised and focuses attention on improving timeliness of
appellate services from a customer perspective. The measurement
starts when VA receives a substantive appeal and ends when the
appellant receives a final decision.
The November 1994 legislation required VAROs and the Board to
expedite cases remanded by the Board or the Court. In June
1994, VBA had instructed VAROs to handle remands on a priority
basis (that is, to begin work within 7 days of receipt) and to
track timeliness of remand processing to ensure that they are
processed on a priority basis. However, VAROs also had and
still have several other types of priority cases, including
Persian Gulf cases.
The November 1994 legislation also made the payment schedule for
Board members equal to that of administrative law judges and
eliminated the 9-year term. Until 1988, the security and
compensation of the two positions were about the same. In 1988,
the Veterans' Judicial Review Act established 9-year terms for
Board members, while administrative law judges did not have a
limit. Then, in 1991, Congress created a substantial gap
between the compensation for these two, essentially similar,
positions. During the 13-month period following July 1993, nine
Board members left to work as administrative law judges and
other members were on the register to do so. To halt the flow
of experienced Board members, the Secretary supported
legislation to equalize compensation.
Other changes, such as the following, are anticipated.
Although as of May 1995 the plans were on hold, VBA is developing
procedures for a test of an imaging system to allow copies of
documents to be stored electronically, so that, ultimately,
paper files will not be needed. The system is being tested for
original education claims in four VAROs. At this time there are
no plans to test imaging documents for appellate cases.
The July 1994 legislation enabled appellants to participate in
hearings with the Board using teleconference or videoconference
equipment if such facilities and equipment are available. In
July, the Board began holding videoconference hearings with the
St. Petersburg regional office and plans to test a three-way
conference with the Des Moines regional office and Iowa state
offices.
A system of advanced docketing for Board cases has been in effect
since January 1994, whereby the case folders remain in the VARO
but the case is entered on the Board's docket. In an effort to
reduce remanded cases, since October 1994, VAROs have had
certification procedures to check files just before they are
sent to the Board to ensure that they are complete. The Board
began requesting these cases from the VAROs in July 1995.
In the July 1994 legislation, the absolute limit on the number of
Board members was eliminated. The Board plans a limited
increase in the number of Board members, and also plans to hire
additional staff attorneys to assist Board members.
The Board has received approval from the Secretary for an internal
reorganization. Among other things, the three-member Boards,
with assigned staff attorneys, will be broken up. Board members
will work in four sections (about 15 Board members, 50 staff
attorneys, and 18 administrative staff in each). The sections
will be associated with specific VAROs. The goals of this
reorganization include increasing the number of decisionmakers,
reducing administrative support, and improving communication
with VAROs.
--------------------
\21 For additional discussion of the status of VA's implementation of
the Blue Ribbon Panel's recommendations, see Veterans' Benefits:
Better Assessments Needed to Guide Claims Processing Improvements
(GAO/HEHS-95-25, Jan. 13, 1995).
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix II
Charles Taylor, Evaluator-in-Charge
Cynthia Forbes, Senior Evaluator, (404) 679-1922
Julian Klazkin, Senior Attorney
Pamela A. Scott, Communications Analyst
Richard Wade, Senior Evaluator, (404) 679-1872