Latest News from Veterans Disability Benefits Commission

[Gimpy]

[b]I have been following this Commissions meetings and its' testimony from all affected parties since it's inception this past May 2005.

What I have posted below is a letter from the Disabled American Veterans chief Executive Director for Benefits to the current head of the Department of Veterans Affairs, Jim Nicholson, expressing the official position of the DAV with regards to recent testimony given before the Commission by the VAs' Under-Secretary for Benefits, Danie L. Cooper and his total disregard for this nations veterans.

If you value your benefits, health care, etc.----------I plead with you to write, call, and/or E-mail your Senators, Congresspersons, The Whitehouse and any and ALL news media you can contact with your comments about what appears to be another attempt to undermine and possibly destroy the advances and improvements we've seen in these "EARNED" benefits over the past 50 or so years!

I realize that in this time of concern for the victims of Rita and Katrina and the concern we have for our troops in Iraq and Afganistan that our efforts and priorities may be otherwise engaged.

But, we must NOT let down our 'guard' and allow this nations disabled military veterans be subjected to anything less than the very best they deserve.

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August 10, 2005
The Honorable R. James Nicholson
Secretary of Veterans Affairs
Department of Veterans Affairs (00)
810 Vermont Avenue, NW
Washington, DC 20420


Dear Mr. Secretary:

On behalf of the Disabled American Veterans, I write to express our organization?s concern about the position of the Department of Veterans Affairs (VA) on the disabilitycompensation program, as presented to the Veterans? Disability Benefits Commission by Undersecretary for Benefits Daniel L. Cooper.

The Undersecretary?s statement included several disturbing views that can only be described as insulting to the men and women who have borne or are today bearing the extraordinary burdens of military service. It is all the more objectionable that such attacks on the benefit program for disabled veterans came from the agency whose mission is to ?care for him who shall have borne the battle.?

Though it disingenuously purports, on page 2 near the beginning, to encourage the Commission to consider program changes to ?make a substantial difference in the lives of veterans, as well as a difference in our ability to serve veterans better,? the statement has a poorly camouflaged self-serving focus leading to suggestions that are all adverse to veterans. In proceeding to the program changes suggested for consideration, the statement cites statistics on an increasing workload, with claims backlogs and a consequent decrease in timeliness despite VA?s process reforms for improving productivity and timeliness of claims decisions.

The statement attempts to blame this predicament on Congress and veterans themselves, and thus suggests changes that would accommodate VA?s deficiencies by limiting veterans? entitlements and restricting their access to the system. The rationale for these ill-advised suggestions takes a meandering path over many contradictions and unfounded assertions.

The Undersecretary sets the stage for his specific criticisms by negatively characterizing the program Congress has created and modified as necessary to serve the needs of veterans: ?the Disability Compensation Program is an extraordinarily complex, multifaceted, laborious, paperdominated,frequently-modified program which has a long history. Over the years it has had an uneven and frequently disconnected series of enhancements and additions. All the changes have had the single focus of helping veterans; but, as far as I can tell, no change has worked to make the process or the adjudication easier, quicker, or more consistent.?

Despite his complaint that the program has been frequently modified, one of the primary themes presented later in the Undersecretary?s statement is that it is obsolete: ?The need is for an up-to-date, clearly-stated and agreed upon purpose of the Disability Compensation Program.?Though he states that the ?VA Disability Compensation Program has evolved from a long series of legislative actions, spanning most of a century,? he cites in support of his call for change that ?oth GAO and OMB have stated publicly that the program has not evolved with changes in our economy, workforce, or medical terminology.?

In addition to his complaint that none of these changes have worked to make the processor the adjudication easier, quicker, or more consistent, he later cites legislative changes as a source of complexity and proceeded to name presumptions as an example of that effect: ?The incremental legislative process has had the effect of building an increasingly complex system. . Our Disability Compensation Program recognizes over 110 diseases that are considered to bepresumptively related to special conditions of military service.?

Our experience is that presumptions make adjudication process easier, quicker, and more consistent . We understand that a VA Deputy Assistant General Counsel and the Chief of the Policy Staff of VA?s Compensation and Pension Service (C&P) both told the Commission that presumptions serve to ?simplify adjudications? by eliminating the need to gather evidence and decide complex issues.

According to these VA experts, presumptions ?serve to fill evidentiary gaps in cases where it is infeasible or unduly burdensome to obtain direct evidence on an issue,?and they ?promote accuracy and consistency in agency adjudications.?

Also, contradicting the Undersecretary?s broad statement that, as far as he could tell, no legislation has been beneficial for improving the process, is his later statement about the Veterans Claims Assistance Act: ?In my opinion, this was a proper and well-conceived law that addressed a deficient process under which VA had been adjudicating claims. It made our adjudicators absolutely responsible for helping each individual veteran know what to do, what is needed to substantiate his/her claim, how to respond, and what we will do to assist him or her.?

While he also opined that this is an act which is difficult to properly execute, any law that sets forth instructions that clarify a process for all concerned must necessarily improve consistency, avoid the necessity to correct mistakes, and thereby, in the long term, make adjudication easier and quicker. As the Undersecretary acknowledged, Congress enacted this law to address a?deficient process.?

As a part of his complaint that Congress has enacted an ?uneven and frequently disconnected series of enhancements and additions,? the Undersecretary also complains the program lacks a clearly defined purpose or consistent philosophical basis. He states to the Commission that ?[a] question that should be addressed is:

What is the purpose of the Disability Compensation Program? If you could provide some complete definition, some clarity whichwould then bound the problem, your success would be assured?; yet, he later asserts: ?it seems to me the philosophical foundation of the adjudication process for determining the disability and the cause of it has been diluted by the recent proliferation of ?presumptives.? ?

If he is unsure of the purpose of the compensation program, it would follow that he is certainly unsure of its philosophical foundation. Moreover, as stated to the Commission by VA?s Deputy Assistant General Counsel, ?Congress may establish presumptions primarily to further a policy goal.? Those who do understand presumptions, know that they aid in the fulfillment of the purpose of the compensation program; they do not dilute it. With the variation of understanding of the meaning of the law among VA officials, it is understandable why, ?[f]requently clarity and direction are only realized after the Court renders one of several decisions? as the Undersecretary complains.

Another glaring contradiction is the Undersecretary?s belief in the soundness of the benefit-of-the-doubt rule for resolving factual questions in adjudicating individual claims, but not for uniformly resolving such questions by way of a presumption. Regarding application of the rule to resolve factual questions in individual cases, the Undersecretary stated: ?We have stressed giving the ?benefit of the doubt? to the veteran, and every regional office has certainly attempted to do that.?

However, he discusses, as an example of his doubts about the ?proliferation of presumpti[ons],? the presumption of service connection for diabetes based on its association with exposure to herbicides.

He observes that diabetes may very well be due to factors other than such exposure. Of course, he is entirely correct. The diabetes suffered by a Vietnam veteran may as likely as not be due to causes other than military service.

Conversely, it may as likely as not be due to military service. The question is insoluble under traditional evidentiary methods. The benefit-of-the-doubt rule serves as an equitable solution to such problematic questions. Where it cannot possibly be certain of the correctness of its decision, the Government has chosen to err on the side of the veteran to ensure entitled veterans are not erroneously deprived of the benefits they are rightfully due . See Nehmer v. U.S. Veterans? Admin., 17 F. Supp. 1404 (N.D. Cal. 1989) (holding that rulemaking as to presumptions for disabilities associated with Agent Orange must observe reasonable doubt rule).

Congress specifically provided in section 1116 of title 38, United States Code, that ?[a]n association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association.? Sound scientific evidence has shown such a positive association in the case of diabetes.

Under his authority, the VA Secretary, through rulemaking, added diabetes to the list of presumptive diseases in May 2001. Congress added diabetes to the statutory list of presumptive diseases in December 2001. Here, it is VA?s Undersecretary for Benefits who chooses to ignore the clearly stated public policy goal, or ?philosophical foundation,? of this and other presumptions. The benefit-of-the-doubt rule is a philosophical foundation of the adjudication process which the Undersecretary apparently finds questionable.

In his attempt to shift the blame for VA?s difficulties away from VA, the Undersecretary attributes much of the problems to Congress. In addition to his characterization of veterans? laws as uneven and frequently disconnected, he states that the legislative changes have not been added as ?building blocks,? but as just ?new blocks thrown into the pile.?

He states that the ?program has evolved from a long series of legislative actions, spanning most of a century,? and that ?[e]ach piece of legislation seems primarily intended to address a specific need, or the needs of a special sub-population of veterans.? With this, he accuses Congress of causing VA?s problems : ?The incremental legislative process has had the effect of building an increasingly complex system.?

He follows this complaint about an increasingly complex system with examples of legislation to address specific needs: ?These special conditions include prisoner of war experiences, radiation exposure from nuclear tests, service in Vietnam (with presumptives as a result of exposure to Agent Orange), and ?undiagnosed illness? from the first Gulf War.?

These indictments of Congress come with a lapse of memory about VA?s integral role and a great influence on the development of new legislation. Congress consults with VA on veterans? legislation and gives its views great deference except when it is apparent VA?s opposition is not based on the soundness of the legislation but is merely an element of a broader political agenda .

And yes, Congress has been responsive to the special needs of veterans. While VA may resent its responsibility to adjudicate claims under special rules for special circumstances, such as presumptions for former prisoners of war exposed to extreme physical and mental hardships and abuse or veterans exposed to ionizing radiation as human guinea pigs, such legislation represents our citizens? moral values and desire that we extend special considerations to those who have made special sacrifices . These changes, ?spanning most of a century,? have come with the effects of modern warfare spanning most of a century, and the VA cannot honestly disavow any role in the structure of the program and suddenly condemn th system to further a political agenda.


In addition to its forgetfulness, VA resorts to outright distortion of history . The Undersecretary cites criticism of the VA?s Schedule for Rating Disabilities to reinforce his argument that a ?major restructuring? should be entertained by the Commission: The need is for an up-to-date, clearly-stated and agreed upon purpose of the Disability Compensation Program. Section 1155 of 38 U.S.C. gives VA the authority to promulgate a schedule for rating disabilities and states it should ?. . . reflect . . . reductions in earning capacity.?

There is no policy statement as to why we pay such compensation or what we are to try to achieve through this payment system. Both GAO and OMB have stated publicly that the program has not evolved with changes in our economy, workforce, or with medical terminology.

The IG report states: ?The VA disability compensation program is based on a 1945 model that does not reflect modern concepts of disability. Over the past five decades, various commissions and studies have repeatedly reported concerns about whether the Rating Schedule and its governing concept of ?average impairment? adequately reflects medical technological advancements and changes in workplace opportunities and earning capacity for disabled veterans. Although
some updates have occurred, proponents for improving the accuracy and consistency of ratings advocate that a major restructuring of the Rating Schedule is long overdue.?

All of this criticism is based on a false premise, that is, today?s rating schedule is outdated because it is based on the characteristics of the labor market in 1945.

The Government Accountability Office (GAO) has repeatedly relied on this false premise to argue for revision of the rating schedule. In its May 10, 2005, presentation to the Commission, GAO stated: The information used by VA to estimate economic loss from physical and mental impairments is outdated:

? ?The agency has not updated its estimates of the effect that impairments have on earnings capacity since 1945.

? ?VA?s ratings schedule, therefore, reflects the labor market that existed at the end of WWII, not the labor market of today.

? ?By using outdated information, VA risks overcompensating some individuals while undercompensating or denying compensation to others.

In response to questioning by the Commission, GAO admitted that it had no evidence to support the assertion that the rating schedule was ever based on ?the labor market that existed at the end of WWII.? In response to questioning by the Commission, the representative for the VA?s Office of Inspector General (OIG) admitted that the conclusion stated in a recent OIG report was not that of OIG but merely taken from earlier GAO views .

In questioning by the Commission, the Undersecretary, who is the VA official primarily responsible for ensuring compliance with statutory requirements to update the schedule, stated VA had not acquiesced in the view that the schedule is outdated, although the Undersecretary cited this argument without objection in support of his views. In any event, there is ample legislative history and other documentation to demonstrate that the current rating schedule has never been based on any labor market conditions of any era.


For example, in its comprehensive March 18, 1968, report, the U.S. Veterans Advisory Commission noted: ?The ratings assessed, by law, are based as far as practicable upon the average impairment of earning capacity in civil occupations. These averages have never been statistically determined.?

This willingness on VA?s part to tacitly approve of criticism of its rating schedule by political forces, appears to be an expedient change in position. In his May 2, 2002, congressional testimony, VA?s General Counsel defended the foundation of the rating schedule: Pursuant to 38 U.S.C. ? 1155, the disability ratings assigned in the Rating Schedule are based upon the ?average impairments of earning capacity resulting from such injuries in civil occupations? and are to be revised by VA ?in
accordance with experience.? As the statute contemplates, the provisions of VA?s Rating Schedule are based on VA?s judgment and accumulated experience in evaluating the medical, vocational, and economic factors relating to the effect of
specific disabilities on earning capacity.

Disputes concerning the content of the Rating Schedule would not involve the type of legal issues or case-specific fact
issues that appellate courts are ordinarily called upon to decide. Rather, they would involve challenges to VA?s informed judgment concerning the average economic effects of specific medical conditions. As the chief law officer of VA, surely the General Counsel would not defend an invalid rating schedule.

To our knowledge, VA has not been on Congress? doorstep urging legislation to correct the alleged problem with the rating schedule. Except in the past few years, when VA has opposed almost all beneficial legislation to improve benefits and services for veterans , it has supported some of the ?series of enhancements,? the ?new blocks,? the legislation ?intended to address a specific need.? It has even sought and supported some of the presumptions it now questions. Why are they and the basic purpose of the program being questioned now by higher-level VA officials when program experts such as the Deputy Assistant General Counsel and Chief of C&P?s Policy Staff seem to have no similar confusion?

It appears that political forces are manufacturing doubt about the program as a pretext for cutting benefits and services to veterans and as a part of the overall political agenda to make deep cuts in Federal programs . The statement offers these criticisms to support the Undersecretary?s suggestion that ?some thoughtful deliberate changes,? unlike the new blocks thrown carelessly into the pile, ?could help the entire veteran community receive more rapid, more consistent, higher quality decisions.?

The statement also implicitly portrays veterans in a negative light and as partly responsible for VA?s inability to fulfill its mission. Citing the increasing numbers of veterans on the compensation rolls, the Undersecretary observes: ?There are catalysts that increase the advantage of receiving disability compensation. Entitlement to the VA?s disability compensation can lead to eligibility for other programs, including VA medical care, vocational rehabilitation, dependents educational assistance as well as individual state and local benefits.?

If VA is properly deciding compensation claims, then all veterans on the rolls are rightfully due and legally entitled to the compensation they receive. If service-connected disability also entitles veterans to other specially tailored benefits a grateful nation has provided for them, why can they be faulted for receiving those benefits? The Undersecretary seems to suggest that the availability or pursuit of compensation triggers or is driven by mercenary motives of greedy veterans .

Another part of the Undersecretary?s statement presents a clue as to the real reason VA cannot achieve timely, consistent, and quality decisions. The reasons are internal within the executive branch, not the fault of Congress or veterans.

In his statement, the Undersecretary indicated: ?The Veterans Claims Assistance Act of 2000 (VCAA) dramatically changed the business of VA disability claims adjudication. . . . It is also an example of a law which, despite relatively innocuous terminology, has been inordinately difficult to properly execute. As a result of VCAA and the accelerating influx of claims, Secretary Principi convened the Claims Processing Task Force in May 2001.?

The Undersecretary then describes the increase in productivity that resulted from implementation of Task Force recommendations:

In February 2002, the number of pending claims in our inventory (frequently referred to as the ?backlog?) reached 432,000. Veterans were waiting 233 days on average for decision[s] on their claims. Over the next nineteen months, through implementation of the CPI Model throughout the entire VBA field organization, we reduced the inventory to 253,000 by September 2003. More importantly, we reduced the time to provide veterans with decisions on their claims to 156 days.

During the time VBA was doing relatively well on claims processing, however, the numbers of appeals and remands went up dramatically . These increases were to be expected due to the significant increase in rating decisions (both positive and negative decisions); however the increase was greater than historical records would have predicted. The percentage of appeals per 100 claims rose and is now receding; but the total workload is still increasing.

Although the Undersecretary?s statement attempts to illustrate how gains against the backlog were offset by increases in appeals, an understanding of the circumstances strongly suggests more than an unfortunate coincidence. The increased production caused the counterproductive increase in appeals . Let us look at the circumstances under which VBA greatly reduced itspending C&P caseload.

VA?s budget submission for FY 2001 described circumstances impacting on production:

Increased Difficulty and Complexity of the Workload

? Our decisionmakers have been faced with significant changes in the body of law governing the Compensation and Pension Programs. Decisionmakers who now rate cases must do so increasingly by case law rather than a static body of regulations ? a more difficult and time consuming process. The process of evaluating claims using a combination of regulations and precedent decisions is much more complex, and requires additional research time.

? VA has made ad hoc changes to the regulations based on the Courts? decisions.The consequence of making changes on an ad hoc basis has resulted in decreased readability of the regulations. In addition, we have written the changes in a
bureaucratic and legalistic format which are not easy for employees to interpret. At this time, we are rewriting regulations so that they will have a cohesive structure which our employees and customers can easily understand.

? VBA did not fully anticipate the impact of the Court on the cases in the pipeline, the long ranging effects of this, and the consequent remands. We also did not anticipate the level of training required to effectively implement Court decisions.

? We have struggled with the issue of service connection for undiagnosed illness for Gulf War veterans because this is contrary to the way we traditionally adjudicate service connection. Decisions for these claims are labor intensive and are
completed at the expense of other claims. VBA has dedicated resources to several efforts to ensure that Gulf War veterans are properly evaluated..........


The budget submission for FY 2002 contained the following:

Another issue facing VBA is the imminent loss of highly experienced decision makers due to retirement. Succession planning estimates show that 2,695 Veterans Service Representatives (VSR), Rating VSRs, Decision Review Officers (DROs) and team leaders/managers will be eligible to retire over the next five years. From this pool of potential retirees, we project that 1003 will actually retire in the next five years. . . . VBA conservatively estimates retirement losses at 25 percent .

Generally, a non-rating VSR requires two years of training to achieve expertise in the full range of journey level duties. . . . Similarly, a Rating VSR generally requires three years of training to achieve expertise in the preparation of legally binding decisions establishing entitlement to disability compensation or pension, DIC, and evaluation of appeals. In order to avoid a two to three year skill gap that will exacerbate our service delivery challenges, we began to stabilize the C&P workforce for the future by hiring and training substantial additional resources before the actual losses occur .
. . . .

However, we are already beginning to see the effects of the recent legislative changes on our workload. Since the implementation of the duty to assist legislation, our pending claims and appellate workload have increased significantly since the start of FY 2001. The strides made in reducing the BVA remand rate have been reversed.

By January 2001 the remand rate climbed to 55 percent from 29.9 percent in October 2000. The effects of the duty to assist legislation will be further complicated by the additional workload expected as a result of additional presumptions being granted
for diabetes. This regulation is expected to increase our anticipated workload by over 85,500 claims in FY 2001 and 102,000 in FY2002.

.......

With all of these factors that would be expected to slow production, e.g., inexperienced adjudicators, more complex issues, and added administrative burdens, VBA reduced its pending C&P workload by 41 percent in only 19 months. Thereafter, not only did the number of appeals rise as a result of an increased number of decisions, but also the percentage of decisions appealed.

Experience has shown repeatedly that a push for production compromises quality for quantity, with higher error rates and more appeals. The number of appeals rose because VA pushed for production and an increased case output.

Ironically, the Undersecretary?s concern is not that hasty decisions will result in errors and a consequent increased load on an already strained system, his concern is that adjudicators may make unwarranted allowances: ?As public servants, we must also ensure our adjudicators, while treating each veteran fairly, are not pressured to make speedy decisions or to resolve [the] ?benefit of the doubt? prematurely, resulting in an award of benefits despite the lack of fully documented justification.?

We (DAV) believe the VA needs to ensure that pressure to make speedy decisions to reduce the claims backlog does not result in an increase in errors and an increase in appeals, and even more of a workload.

In complaining about the increased number of claims, the Undersecretary notes: ?The number of disability claims received each year has likewise dramatically increased (578,000 in 2000; 771,000 in 2004; about 800,000 projected by the end of FY 2005).?

In its FY 2004 budget submission of February 2003, the Administration sought 61 fewer full-time employees (FTE) for VBA than authorized for FY 2003. Under the budget, C&P service would have no increase in FTE, but rather would maintain the FY 2003 staffing level, which was down by 190 FTE below the FY 2002 level. In testimony to the House Budget Committee, we had the following to say about the Administration?s FY 2005 budget proposal to further reduce VBA and C&P staffing in 2005:

"The President?s budget submission for VA clearly does not remain fixed on the objective of strengthening VBA to make it better able to fulfill its responsibilities to veterans . Due to the war in Iraq and the many hostilities in which our Armed Forces are engaged today, we can only expect an influx of new veterans needing VA benefits and services."

" Logically, more resources will be needed in some areas just to stay even with the workload. However, the President?s budget proposes major reductions in resources for the delivery of benefits and services to veterans. For VBA, the President?s budget requests 829 fewer full-time employees (FTE) for FY 2005 than authorized at the end of the fiscal year we have just finished, FY 2003? "

"The request is 540 FTE below the FY 2004 level . We note, incidentally, that the difference between the FY 2003 and FY 2005 FTE for VBA is apparently greater than the 829 employees indicated by the budget submission because, at the beginning of FY 2004, the responsibilities, and the 31 FTE of the Evidence Development Unit, of the Board of Veterans? Appeals (BVA) were reassigned from BVA to VBA, without any corresponding request to increase VBA?s authorized FTE by an equal amount."

Regarding the adverse impact of an inadequate budget on C&P, we said:

"The President?s budget proposes 7,270 FTE, or 487 fewer direct program FTE for VA?s Compensation and Pension Service (C&P) in FY 2005 than in FY 2003. In addition, the President?s budget requests 185 fewer FTE for FY 2005 than it had in FY 2003 for management direction and support and information technology in C&P Service. We also understand that the additional FTE for the Evidence Development Unit assumed by VBA from BVA are charged to C&P Service. With those FTE absorbed by C&P and without any equal increase in the FTE requested for C&P, that number of employees must be calculated as an additionalnet reduction of FTE for C&P Service when comparing the FY 2003 staffingwith the request for FY 2005."

Again in our February 2005 testimony on the Administration?s FY 2006 budget request, we observed that the staffing level was inadequate for the workload:

According to the ?Budget Highlights? in the President?s Budget Submission, one of VA?s highest priorities is to ?[i]mprove the timeliness and accuracy of claims processing.? The Budget Submission states: ?Funds are included in the Veterans Benefits Administration to sustain progress made under the Secretary?s priority of improving timeliness and accuracy of claims.? We assume the intent was to say that the funds requested are sufficient to continue the course of improving claims processing timeliness and accuracy. In another statement, the Budget Submission declares: ?As a Presidential initiative, improving the timeliness and accuracy of claims processing remains the Department?s top priority associated with our benefit programs.?

However, it appears that this budget abandons efforts to improve on the intolerable situation in which VA has large backlogs of pending claims and in which benefits awards to veterans are delayed as a consequence. The Budget Submission for FY 2004, for example, set a goal of reducing the average processing time for compensation and pension claims from a projected 165 days in FY 2003 to 100 days in FY 2004, with a strategic target of 90 days. The Budget Submission for FY 2005 set a goal of reducing the average processing time for compensation and pension claims from a projected 145 days in FY 2004 to 100 days in FY 2005, with a strategic target of 90 days.

The FY 2006 Budget Submission revises these figures to show that average was actually 166 days in FY 2004, that the time will be reduced to 145 days in FY 2005, and that the goal for FY 2006 is also 145 days. The strategic target has been increased from 90 days to 125 days. This demonstrates that the resources requested are insufficient to meet a goal that VA portrays as a ?top priority.? These figures call into question the genuineness of this stated goal.


The IB has recommended that C&P Service be authorized 8,929 FTE, the FY 2004 staffing level. In addition, C&P Service had 174 FTE for adjudication of burial benefit claims, making the FY 2004 total 9,103 FTE. The President?s budget requests 9,087 FTE for C&P. While this is an increase over the 8,959 FTE authorized for FY 2005, the failure to meet timeliness goals demonstrates that the President?s request for FY 2006 is insufficient . At a minimum, C&P Service should be authorized 9,103 FTE.

Although VA likes to selectively cite items from the May 19, 2005, OIG report on state variances in disability compensation payments, we have not seen it mention the survey results from its employees that attribute many of the problems to inadequate resources. Sixty-five percent of the adjudicators who responded to the survey by OIG, reported insufficient staff to ensure timely and quality service. Fifty-seven percent of the adjudicators responded that it was difficult to meet production standards if they took time to adequately develop claims and thoroughly review the evidence before deciding the claim.

In DAV?s survey of its own field offices for purposes of May 26, 2005, oversight testimony, remarks about inadequate staffing for C&P exceeded all others, favorable and unfavorable. About two-thirds of our supervisors pointed specifically to overworked VA employees as a serious problem responsible for poor performance. Associated with this inadequate adjudication staff were frequent comments that management pushed for production over quality and that there were timeliness problems in developing and deciding claims, as well as authorizing awards, and completing actions on appeals and remands.

In our oversight testimony, we explained how the appellate workload and dispositions reveal the quality of work done by VBA:

During FY 2004, 108,931 new notices of disagreement were received by VA, 49,638 appeals were perfected and added to BVA?s docket, 39,956 cases were physically transferred from agencies of original jurisdiction to BVA, and the Board decided 38,371 cases. The Board began FY 2004 with 27,230 cases pending before it and ended the year with 28,815 cases pending. Accordingly, the number of new appeals added to the Board?s docket during the year exceeded the number of cases it decided by 11,267, and the number of new appeals added to the Board?s docket exceeded the number of cases transferred to the Board for a decision by 9,682. The Board decided 1,585 fewer cases than it received from field offices.

At the end of FY 2004, there were more than 161,000 cases in field offices in various stages of the appellate process, including the 31,645 on remand. Some of these appeals will be resolved at the field office level, but about three-quarters of them will come before the Board. At the end of March 2005, there were 51,508 cases on the BVA docket.

During FY 2004, the average time for resolving an appeal, from the filing of the notice of disagreement to the date of the decision, was 960 days. Of this total, 734.2 days was the average time an appeal was pending in the field office, from
the notice of disagreement to the transfer of the case to BVA, with an average of 225.6 days from the date of receipt of the case at BVA to the date of the decision.

As of April 30, 2005, the average total days for cases pending in the field was 830 days and the average time at BVA was 204 days. Of course, for those cases remanded, the total processing time is considerably longer. In FY 2004, an additional 155.6 days were added to the total processing time of appeals for the time the case spent at BVA the second time following the remand, and this did not include the number of days the case was on remand at the field office.

During FY 2004, 7,140 cases were returned to the Board following remands. The remands took an average of 22 months. As noted, there were 31,645 cases on remand at the end of 2004. Of the 38,371 cases decided by BVA in FY 2004, approximately 21 percent had been previously remanded . With these long processing times, far too many disabled veterans die before their appeals can be decided . Three obvious conclusions follow from these numbers: (1) most of the delay in these unreasonably protracted appeals processing times is at the field office level , (2) far too many cases must be remanded more than once, and (3) multiple remands add substantially to the workload of BVA.


The Board allowed 17.1 percent of the cases it decided during FY 2004. Approximately 24 percent of those allowed cases had been previously remanded. The Board remanded 56.8 percent of the cases it reviewed during FY 2004. Of those remanded cases, 18 percent had been remanded previously, suggesting that the field office did not fulfill the Board?s instructions in the remand order.

Together, the allowed and remanded cases represented 73.9 percent of the Board?s total case dispositions in 2004. Denials amounted to only 24.2 percent of the total dispositions. In addition to noting the high percentage of cases remanded
multiple times, three conclusions can be drawn from these percentages:

within these appealed cases,

(1) agencies of original jurisdiction have denied many meritorious claims,

(2) agencies of original jurisdiction have denied many cases without proper record development, and

(3) only a relatively small percentage of these appellants had unwarranted appeals.

It is worth repeating that, together, the allowed and remanded cases represented 73.9 percent of the total dispositions by BVA in 2004. Denials amounted to only 24.2 percent of the dispositions.

A primary cause of VBA?s problems is insufficient resources, resulting in an inability to properly develop and carefully adjudicate claims, ensuing high error rates, increased numbers of appeals, more load on the system, and an ever escalating cycle of inefficiency. The DAV will therefore continue to oppose misplaced recommendations to change the law for the purpose oflimiting entitlement and thereby reducing VA?s workload and reducing spending on veterans? programs.

From its misplaced focus and misplaced blame, the Undersecretary?s statement proceeds to ill-advised suggestions. In support of changing the appeals process, the Undersecretary states the following rationale:

"I believe we must also streamline the appeals process. Any assessment of the current appeals process raises serious questions about its effectiveness. As many reviews of the appeals process have concluded, it lacks finality. The policy and
process for addressing appeals are provided in statute and regulations, drafted and implemented at different times in history, resulting in a complex process thatconsumes a large and increasing portion of finite claims processing resources."

"The process can be improved, and veterans and taxpayers can be better served. Any honest current assessment of the appeals process should not raise serious questions about its effectiveness. As noted above, in FY 2004, claimants initiated nearly 109,000 appeals. Experience has shown that approximately half of these appeals will be resolved by the VA offices that made the decisions being appealed, without necessity for review by BVA. Of the 38,371 cases in which there was a BVA decision last year, 17.1 percent were allowed. Another 56.8 percent involved some processing omission that rendered
the decision unsustainable, thereby requiring remand from BVA to the VA office responsible for the original decision."

"As noted, together the allowed and remanded cases comprised 73.9 percent of BVA?s total decisions in 2004. Again, based on experience, approximately 25 percent of the remanded cases, or 14 percent of the total cases reviewed by BVA, will be allowed on remand. Of the 75 percent of the remanded appeals that will be returned to BVA, approximately another 10 percent, or 4 percent of the total cases reviewed by BVA, will be allowed. Based on these percentages, somewhere in the neighborhood of 13,500 of the claimants whose cases were reviewed by BVA last year will eventually receive the benefits they would have otherwise been deprived of erroneously. That does not include the close to half of the nearly 109,000 appellants whose claims will be favorably resolved without review by BVA. Those numbers demonstrate that VA?s appeals process is fulfilling its purpose."------

Those numbers demonstrate the failings of VBA?s decision making and the ?effectiveness? of the appeals process for correcting VBA?s mistakes.

The appeals process does not lack finality. This is another false statement. The law is clear. Except in the rare case where BVA grants reconsideration based on its own belief that it made a serious error, section 7103 of title 38, United States Code, provides that the ?decision of the Board . . . is final? within the administrative process. Section 7104(a) provides:

?All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.?

Section 7104(b) provides that, ?when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered.?

Appeals do sometimes drag on for years and require multiple decisions because of VA omissions and failures along the way that require multiple remands. This administrative shortcoming should not be confused with a lack of finality. As we
acknowledged, a series of VA errors of this type do consume ?a large and increasing portion of finite claims processing resources.? The process can be improved, and veterans and taxpayers can be better served, but the proper solution is not to penalize veterans for VA?s mistakes .


One of the recommendations the Undersecretary makes to ?streamline? the appellate process is to ?close the record? on an appeal. The Undersecretary states: ?This would define a time in the process after which no additional evidence would be accepted. This could reduce the time to final resolution, reduce costs, and ensure all evidence is available early in the process. Individual veterans would always have the right to file a new claim on the issue at some futuredate.?

A law that prohibited veterans from submitting additional supporting evidence once the appeal was initiated would not only be adverse to veterans, it would be counterproductive for VA. Perhaps such a law would discourage some veterans from pursuing new claims, keep some veterans from obtaining the benefits to which they are entitled, and save the Government some money.

Other than the invalid purpose of depriving veterans of compensation for serviceconnected disabilities, imposing such a restriction has no benefit for anyone concerned. It is more efficient for a field office adjudicator or BVA member to admit into the record and consider all evidence on a point received before actual deliberations on the merits of the claim or appeal begins than it is to require an additional totally new and separate decision.

Any such new and separate decision would require the adjudicator to take into account not only the new evidence but also its effect in light of all the other evidence of record. That would require another person to again review, analyze, and weigh the entire record anew. There are many good reasons for admitting additional evidence up to a cutoff point just before the appellate decision.

Clarifying or corroborating evidence sometimes comes available only after the appeal is initiated. VA itself often seeks additional clarifying evidence on an appeal. However, in FY 2004, BVA remanded only 15 cases for consideration of new evidence.

Under a rule in which additional treatment records could not be admitted to the record in support of a pending appeal, the veteran would have no choice but to submit the new treatment records in support of a separate claim on the same issue. If that claim for increase were denied, he might then have a second appeal on the same issue. A veteran with a condition requiring repeated hospitalizations, could have multiple claims and appeals pending at the same time on the same issue. From a fairness standpoint, this recommendation is certainly not justified; whatever amount of money may be saved in benefit payments would likely be equaled or exceeded by added administrative costs. This recommendation is particularly shortsighted. It is representative of an unfortunate mindset that we should limit veterans? ability to pursue claims.

The Undersecretary makes a similar recommendation to foreclose the filing of a compensation claim after a set time period allowed for such a claim:

Today, there is no time limit for a veteran to submit an initial claim for disability compensation. He or she can be 18 or 85, have been on active duty for six months or 50 years, and can submit the claim immediately upon leaving the service or decades later. The major question which begs discussion is the effect of age and ?life habits,? over a period of time, on injuries and diseases. What effect does age alone have on health?

First, let me say that this statement reveals a lack of understanding of the basic principles of service connection. Under those equitable principles, whether the veteran files his or her claim at age 18 or 85, or immediately after service or decades later, should result in no difference in benefits, except that the veteran who waits to file a claim will deprive himself or herself of benefits for that period, and save the Government money.

To be entitled to service connection for a disability, the veteran?s disability must have been incurred or aggravated during service in the Armed Forces. Once a disease or injury is service connected, subsequent manifestations or residuals are service connected except when attributable to intercurrent causes. Some degenerative and progressive conditions worsen with age, but the effects of age alone are not a basis for compensation. The veteran who files a claim at age 18 and immediately upon discharge will be compensated for the level of disability present at age 85 if it worsens and he or she seeks reevaluation . The veteran who first files a claim at age 85 will be compensated based upon thedegree of disability present at that time.

All other things being equal, both veterans should receive the same compensation at age 85. Of course, a veteran may not live to age 85, and such a veteran would save the Government money if he or she elected for personal reasons to never file a claim. Removing the open-ended option to file a claim may save the Government some money, but it also may pressure others to file claims immediately after discharge and receive benefits their entire lives where they would not do so but for the time limitation. Regardless, this suggestion is adverse to veterans. It may relieve VA of the obligation to decide some claims, but that does not justify the change, and it has no real merit from any viewpoint.

We find another of the Undersecretary?s suggestions perplexing given the purpose of compensation. He states:

"A third concern for the veterans disability program is the fact that in the adjudication and award process, there is no differentiation between combatrelated injuries, line-of-duty injuries (sports, motorcycles untoward behavior) and
those ?normal? diseases which all of us experience as a result of age. The need for any such distinctions should, at least, be debated."

Again, our laws authorize service connection for disabilities incurred or aggravated during service. Service connection must be based on the onset of the disease during service, not as a result of advanced age. The onset of many diseases is at younger ages. For many good and practical reasons we need not cover here, current law dispenses with any cause-and-effect basis for service connection and requires only a temporal relationship with service. Moreover, many of the diseases of former prisoners of war and radiation exposed veterans, for example, do not manifest clinically until their later years. If a veteran is paralyzed in the line of duty, his disability will be equally as devastating if he was injured in combat or in some other manner.

That the Undersecretary?speaking for you, and you adhering to the position of the Administration?would again seek to raise this dubious issue of service connection only for combat wounds or disabilities directly resulting from the performance of military duties will certainly further erode the public trust.

The Undersecretary raised other issues for consideration that are equally objectionable and unwarranted. Our discussion of the above issues should suffice to convey our doubts and concern about the wisdom of the position this Administration is taking. Instead of resenting the fact that legislative changes ?have had the single focus of helping veterans? rather than making the process ?easier, quicker, or more consistent,? the Undersecretary should familiarize himself with the Vision Statement of the Veterans Benefits Administration that he heads. The vision statement begins with a quote from VA Administrator Omar Bradley: ?We are dealing with veterans, not procedures?with their problems, not ours.?

Attempts to shift blame away from VA to Congress and veterans with the suggestion of changes for VA expedience or to save on Federal spending should greatly concern all citizens who place a high value on the contributions and sacrifices of our veterans.

It should concern those dedicated VA employees who understand and appreciate the reasons for the programs. This statement by the Undersecretary begrudges veterans for what they are entitled to and grumbles about everything we do for veterans. We agree that such changes ?would make a substantial difference in the lives of veterans,? but they would do so by limiting veterans? entitlements and allowing VA to serve itself better. We are compelled to strongly oppose such self-serving suggestions and condemn such disdain for America?s disabled veterans.


Sincerely,

DAVID W. GORMAN

Executive Director

Washington Headquarters

Diasbled American Veterans

c: Undersecretary for Benefits Daniel L. Cooper
Veterans? Disability Benefits Commission

[Gimpy]

know this is somewhat lengthy, but it needs to stay up front for a while.

[billyguns]

[billyguns]

Gimp. thanks for keeping up with this. I have been reading here for years and am aware of your continued efforts to inform on what these rascals at the VA are up to. Unless one is personaly involved with this system, it is impossible to understand the mindless and outright underhanded methods many deserving veterans are forced to indure in order to work thier claim. Keep up the good work!

[Gimpy]

Billy................Now if we can JUST get some more folks around here to help DO SOMETHING about this!

[Gimpy]

up front for a while.

[haiki]

Speaking of "..reductions in earning capacity." I give you this.
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38 USC 1155 Notice. Judges overstepping. A veteran's observation.
How can state court judges arbitrarily award as alimony a portion of a veteran’s disability rated compensation, and waive away by reviewing the disability rights of veteran’s whose disability rating, that maybe, determined and factored in as critical? Judgment as if all disabilities are exactly the same? State court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. And in doing so, ignorance of the law is no excuse, the law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, "..., in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred.” Violating as well, 38 USC 5301, 42 USC 1408.
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Thus, the Federal Circuit found that “[t]he statutory scheme … consistently excludes from judicial review all content of the ratings schedule as well as the Secretary’s actions in adopting or revising that content.” Looking at the legislative history, the Federal Circuit pointed out that “[t]he language in the legislative history is not limited to the percentages of the disability ratings, as appellants argue, but matches the statutes in broadly precluding judicial review of the contents of the disability rating schedule in toto.”
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What needs to be done? As explained above briefly, you know your fellow veterans’ are taking a beating from judges in state divorce court. Seizing veterans’ VA disability compensation. Being awarded as alimony. These judges, although recognizing federal law, somehow justify their interpretation of 38 USC 5301 and 10 USC 1408, and the Supremacy Clause as not being perhaps strong enough. Now comes, 38 USC 1155, “Authority for schedule for rating disabilities”, this is possibly just what the disabled veteran needs to overcome the state court’s opposition and uncertainty, with a law that leaves no room for ambiguity in it’s meaning.
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I don’t believe 1155 argument has ever been tried, or introduced in court. Once introduced, the court will have to deal and rule on this. If there are any upcoming veterans' court divorce proceedings, or even possibly pending cases, the introduction of 1155 could possibly be the one thing that will remove, hopefullyforever, another burden from our disabled veterans, at an unfortunate time in their lives. I hope you found this advice worthwhile. Please post this notice on your bulletin board, email, or newsletter, there may be a veteran that can benefit from this advice Thank you.
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