Expediting Claims or Exploiting Statistics: An Examination of VA’s Special Initiative to Process Rating Claims Pending Over Two Years
May 22, 2013
GERALD T. MANAR, DEPUTY DIRECTOR
NATIONAL VETERANS SERVICE
VETERANS OF FOREIGN WARS OF THE UNITED STATES
FOR THE RECORD
COMMITTEE ON VETERANS’ AFFAIRS
UNITED STATES HOUSE OF REPRESENTATIVES
WITH RESPECT TO
Expediting Claims or Exploiting Statistics: An Examination of VA’s Special Initiative to
Process Rating Claims Pending Over Two Years
WASHINGTON, D.C. May 22, 2013
MR. CHAIRMAN AND MEMBERS OF THE
On behalf of the men and women of the
Veterans of Foreign Wars of the United States (VFW) and our Auxiliaries, I want
to thank you for the opportunity to provide testimony for today’s hearing.
Over the last decade the Veterans
Benefit Administration (VBA) disability claims workload has grown from 330,000
to nearly 905,000. During the first six years that increase was
a relatively modest 60,000 claims.
However, from early 2009 to the present, pending disability claims more
Historically, VA tracked claims that
were pending longer than 180 days. From
2003 to 2009, claims pending over 180 days ranged from a low of 75,000 to a
high of 108,625. In 2009, VA established
a goal that no claim should pend more than 125 days. The lower number meant more claims exceeded
the goal. In 2010, VA reported 179,863
disability claims pending over 125 days at the start of the year. By January 2013 that number had tripled to
The story told by this data is not
new. In the last few years the volume of
outrage from veterans, veterans’ advocates and members of Congress has
increased substantially. What was once
an infrequent chant of disenchanted veterans of “deny, deny until I die” has
been joined by many other voices demanding answers as to why VA cannot process
claims more quickly than it currently does.
During the last five years VA Secretary
Eric Shinseki and VBA leaders, most recently Under Secretary for Benefits Allison
Hickey, were able to identify many of the systemic problems which slow claims
processing and put into motion historic changes in IT modernization which they
believe will, over time, enable VA to process claims more quickly and with
better quality. Unlike their
predecessors they have a single vision and are dragging the second largest
bureaucracy in the Federal government into the 21st Century. These are good things.
However, while this long overdue
transformation takes place, more and more veterans wait longer and longer for
decisions from VA. Although VA made
decisions in more than 1 million claims last year it was not enough to reverse
the tsunami of claims it received.
Inexorably, pending claims grew older and older, one day at a time. The media has been filled with story after
story of veterans who had waited seemingly forever, frequently longer than a
year. The number of veterans waiting two
years or more seemed to explode overnight.
With this as background, what was VBA to
do? It did what it has always done; it decided to play a game of Whack-a-Mole. VA decided to shift its claims processing
attention from methodically working all of its claims to concentrating on
processing claims pending for more than two years. This reordering of priorities is not new, nor
is it necessarily unreasonable in light of shifting workloads.
For instance, in August 2010 VA
recognized three new conditions presumptively related to exposure to herbicides
in Vietnam. VA leadership knew that they
were faced with reviewing tens of thousands of claims previously filed by
Vietnam veterans to see if they were entitled to benefits for one or more of
the new presumptive conditions. This
review was required in order to comply with Nehmer
v. United States Department of Veterans Affairs. VA could also reasonably anticipate receiving
many more thousands of claims from Vietnam veterans. Faced with this certain dramatic spike in its
workload and the relative simplicity of many of these claims, VA decided to
shift its priorities to work Agent Orange claims ahead of pending claims.
In the end, VA processed 260,000 Agent
Orange claims ahead of other pending claims. The very nature of this priority caused
hundreds of thousands of other claims to grow months, perhaps years,
older. VBA leaders are convinced that it
was the right decision. Two-hundred-sixty
thousand Vietnam veterans are receiving benefits today for conditions stemming
from their war which ended 38 years ago.
We can assume that most are satisfied with the actions taken by VA. This is what happens when priorities shift; a new set of claimants “win” while others wait
The review of claims more than two years
old is a change in priorities. It places virtually the entire claims backlog
on hold until VBA finishes a review of more than 50,000 claims pending for more
than two years. During this review, we
are told, another 5,000 claims per month will turn more than two years
old. After an interminable wait these
veterans will receive decisions.
VA states that about 30 percent of the
50,000 claims were “ready to rate.” That
is, someone had indicated that all necessary development had been
completed. These cases could have been
worked at any time. Had regional office
management paid attention to the workload reports, it should have assigned
sufficient staff to process at least that segment of old claims. Judging from the fact that some regional
offices had few claims subject to this review, it appears that some regional
office managers managed their workload better than others.
The remaining 70 percent of pending
claims would fall into the following categories: Claims which should have been marked “ready
to rate” but were not; claims which were awaiting records from Federal
government agencies; claims waiting for a required VA medical examination; and
claims waiting for records from private or non-Federal government sources. It is this last group of claims which, we
believe, make up the largest segment of these old claims. Often, development is incomplete because of
mistakes made by VA early in the processing of the claim.
This project concerns us deeply. When the project was first proposed the VFW
and other service organizations sought to create a dialog with VBA. VA adjusted the letter to address some of our
concerns. However, the basic problem
with this review is the creation of a new type of rating: A provisional rating. While VA has had great latitude in issuing
interim ratings when it finds that evidence is sufficient to grant service
connection or a higher evaluation even though additional development is
required to fully adjudicate other issues, the idea of rating on the evidence
of record before development is completed on that issue is new. It is also a disturbing departure from the
law and past practice.
For the record, the VFW welcomed the
changes made by VBA in modifying this project.
We told VBA leaders that we would not oppose this project as we consider
it a one-of-a-kind event; that these veterans had waited too long to have their
claims decided. VBA indicated that it
wanted to expand this project to claims pending more than one year once the
initial review was done.
Given that VBA wanted to expand the
review, we asked that it pause after this project to assess it to determine
what problems were noted during the review; what action, if any, was taken to
address those problems; what changes, if any, are necessary if the project was
to be expanded to claims more than one year old; and what additional problems
might develop by expanding this project.
In our view, issuance of a provisional
rating is an admission of failure; failure on the part of VA to accurately and
completely develop an issue at the start of the claim. Examination of these cases will almost always
show that VA performed incomplete development at the start, and failed to fully
correct its mistakes and obtain required evidence in a timely manner. Most of these cases show signs of neglect. They
sat for many months without any review by progressively more responsible and
experienced VA employees.
This project does more than simply bring
these cases to the light of day to complete development and decide the issue at
hand. With every provisional rating VA
tells the veteran that VA failed to complete its job and now the burden of
completing development is shifted to the veteran.
In the end, VA will resolve nearly all
of the 50,000 two-year-old claims it had pending at the start of this
project. The average age of claims
pending (ADP) will drop precipitously.
VA will take a one-time hit in average days to complete (ADC) but this
portion of the workload will no longer be a drag on the rest of the data. For a time VA will have significantly fewer
cases pending over the artificial goal of 125 days. However, without fixing its underlying
problems of accurate, complete and timely development with rigorous attention
to subsequent reviews and correction of any problems noted, timeliness will
degrade and VA will slide backwards again.
VBA leadership proposes to expand the more
than two year review to claims more than one year old. There are several problems with this
expansion. Any expansion beyond the
current project institutionalizes the provisional rating. Further, it encourages some VA employees to
accept, rather than correct, poor development.
It encourages some managers to forego routine reviews to catch and
correct mistakes in development because they will know that if a case ages past
a certain point they can simply issue a provisional rating and shift remaining
development to the veteran.
Finally, the simple logistics of an
expanded review become problematic.
Consider that if it takes 60 days to review and decide 50,000 claims, it
would take another 8 months of concentrated, exclusive effort to review and
process the estimated 200,000 claims pending for a year or more. In the meantime, virtually all of the
existing work now less than one year old will age by another year. In the end, this project will not solve the
backlog problem, it will only deprive thousands of veterans the assistance of
VA mandated by law and regulation.
Congress, through the Veterans Claims
Assistance Act and other legislation, has instructed VA on the minimum it must
do to assist veterans in the development and completion of their claims. We recognize that the legal burden for
submitting evidence not in the control of the Federal government ultimately
rests with the veteran. However, Congress decided that the burden
does not shift until VA has completed certain actions. This project abrogates VA’s responsibility to
do the job Congress gave it.
This project is a very public admission
that VA has failed to create a viable, effective and efficient system for
developing and managing claims. Instead
of fixing its problems, VA is demanding that veterans once again suck it up and
shoulder the burden of completing the job that VA botched.
We ask Congress to require VA to step up
and perform the tasks it is required to do.
We ask that Congress end the use of a provisional rating as it
prematurely shifts the evidentiary development burden to veterans in
contravention of existing law and regulations.
Mr. Chairman, this concludes my
Morning Workload Report, January 2003-January 2013;
Whack-a-Mole is one of those carnival games which can
never be won, only played. It is usually
a table with five or six holes. The head
of a plastic mole protrudes from one hole.
If you push down the head another pops up from different hole. The object of the game is to see how many
moles you can whack with a mallet in a given time frame. The person who hits the highest number of
moles wins the game.
Nehmer v. United States Department
of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.).
“Balancing the Record on the Claims Backlog”;
VBA Letter 20-13-05 mandates a review of all claims received prior to July 1,
2011. Except for certain excluded
pending claims, VA personnel are directed to rate all claims in this group
based on the evidence of record. If
development was complete at the time of review VA will make a decision using existing
criteria and guidelines and provide appeal rights to the claimant. If
development was not complete, but was not excluded from the project, VA will
issue a “provisional” decision based on the evidence of record. This provisional decision does not become
final for 1 year. During this period a
claimant can submit additional evidence and receive a new decision based on the
evidence of record. VA will notify the
claimant that the decision is now final and provide appeal rights if no
evidence is received within 1 year of the issuance of a provisional rating,.
It is important to note that a small segment of
claims grow old because of the difficulty in obtaining Federal government
records in spite of timely efforts to obtain them. Claims from veterans who participated in
nuclear bomb tests in the 1940-60’s, for instance, are notorious for taking a
long time to develop dosimetry readings from DOD, adjusted exposures and
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