Congressional Hearings
APPEALS REFORM: WILL VA'S IMPLEMENTATION EFFECTIVELY SERVE VETERANS?
Congressional Hearings
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| AUTHORITYID | CHAMBER | TYPE | COMMITTEENAME |
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| hsvr00 | H | S | Committee on Veterans' Affairs |
[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
APPEALS REFORM: WILL VA'S IMPLEMENTATION EFFECTIVELY SERVE VETERANS?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, JANUARY 30, 2018
__________
Serial No. 115-46
__________
Printed for the use of the Committee on Veterans' Affairs
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Available via the World Wide Web: http://www.govinfo.gov
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COMMITTEE ON VETERANS' AFFAIRS
DAVID P. ROE, Tennessee, Chairman
GUS M. BILIRAKIS, Florida, Vice- TIM WALZ, Minnesota, Ranking
Chairman Member
MIKE COFFMAN, Colorado MARK TAKANO, California
BRAD R. WENSTRUP, Ohio JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American ANN M. KUSTER, New Hampshire
Samoa BETO O'ROURKE, Texas
MIKE BOST, Illinois KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine J. LUIS CORREA, California
NEAL DUNN, Florida KILILI SABLAN, Northern Mariana
JODEY ARRINGTON, Texas Islands
JOHN RUTHERFORD, Florida ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto
Rico
Jon Towers, Staff Director
Ray Kelley, Democratic Staff Director
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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Tuesday, January 30, 2018
Page
Appeals Reform: Will VA's Implementation Effectively Serve
Veterans?...................................................... 1
OPENING STATEMENTS
Honorable David P. Roe, Chairman................................. 1
Honorable Timothy J. Walz, Ranking Member........................ 3
Honorable Elizabeth Esty, Member, House of Representatives....... 4
WITNESSES
The Honorable Thomas G. Bowman, Deputy Secretary, U. S.
Department of Veterans Affairs................................. 5
Prepared Statement........................................... 46
Accompanied by:
The Honorable Cheryl L. Mason, Chairman, Board of Veterans'
Appeals, U. S. Department of Veterans Affairs
Mr. David R. McLenachen, Director, Appeals Management Office,
Veterans Benefits Administration, U. S. Department of
Veterans Affairs
Mr. David J. Barrans, Chief Counsel, Benefits Law Group,
Office of General Counsel, U. S. Department of Veterans
Affairs
The Honorable Gene L. Dodaro, Comptroller General, U.S.
Government Accountability Office............................... 7
Prepared Statement........................................... 49
Accompanied by:
Ms. Elizabeth H. Curda, Director, Education, Workforce, and
Income Security Team, U.S. Government Accountability
Office
Mr. Jim Marszalek, National Service Director, Disabled American
Veterans....................................................... 32
Prepared Statement........................................... 69
Ms. Diane Boyd Rauber, Esq., Executive Director, National
Organization of Veterans' Advocates............................ 34
Prepared Statement........................................... 74
Mr. Steven Henry, Associate Legislative Director, Paralyzed
Veterans of America............................................ 36
Prepared Statement........................................... 77
STATEMENTS FOR THE RECORD
The American Legion.............................................. 79
Veterans of Foreign Wars of the United States (VFW).............. 81
American Federation of Government Employees, AFL-CIO (AFGE)...... 82
Whistleblowers of America (WOA).................................. 84
APPEALS REFORM: WILL VA'S IMPLEMENTATION EFFECTIVELY SERVE VETERANS?
----------
Tuesday, January 30, 2018
Committee on Veterans' Affairs,
U. S. House of Representatives,
Washington, D.C.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room 334, Cannon House Office Building, Hon. David P. Roe
[Chairman of the Committee] presiding.
Present: Representatives Roe, Bilirakis, Coffman, Wenstrup,
Radewagen, Bost, Arrington, Bergman, Banks, Walz, Takano,
Brownley, Kuster, O'Rourke, Rice, Esty, and Peters.
Also Present: Representative Titus.
OPENING STATEMENT OF DAVID P. ROE, CHAIRMAN
The Chairman. Good morning. The Committee will come to
order. Thank you all for being here today.
To begin with, I ask unanimous consent that a former Member
of the Committee, Ms. Titus, be allowed to sit at the dais and
ask questions. She has had a great interest in this issue for
years.
Hearing no objection, so ordered.
This hearing will focus on VA's implementation of the
Veterans Appeals Improvement and Modernization Act of 2017 or,
thankfully, we will have the acronym AMA, which substantially
reforms VA's appeals process.
This topic is important to each one of us on this panel. In
fact, every Member of this Committee is an original cosponsor
of the legislation. We all agree that the success of this
reform is critical, because the current appeals process is
failing veterans miserably.
Right now, VA has a backlog of more than 470,000 appeals
and many veterans will end up waiting at least 6 years just for
the decision on their appeal. And I can assure you that every
one of us in our districts are hearing this and every veteran
town hall that I hear there is much focus on this issue.
Veterans and their families deserve better. They deserve to
have VA decide their appeals accurately and within a reasonable
amount of time.
During the previous Administration, then Secretary McDonald
brought VSOs and other veterans' advocates together to develop
a legislative proposal to address the appeals backlog.
Secretary Shulkin continued to work with VSOs to improve the
original proposal. This Committee took the current proposal and
worked on a bipartisan basis to get it through the House and
sent it to the President's desk, but passing the bill was only
the first step.
We intend to continue to work closely with VA and the
stakeholders to ensure that veterans who file an appeal receive
an accurate decision in a more timely manner, and we know this
will not be easy.
The AMA makes significant changes to the current process
and VA faces challenges implementing the law by the anticipated
effective date. But I am hopeful that the Department is up to
this challenge and, because it was VA itself that requested the
law's February 19, 2019 effective date, to help ensure the VA's
implementation of reform uses sound planning processes and
practices, and the law requires a high level of transparency
from VA.
The first of these reports the comprehensive plan was
intended to outline how VA expects to transition to the new
system, while at the same time addressing the backlog of
pending appeals. On November 23rd, 2017, VA submitted its
comprehensive plan outlining its progress and timeline for
implementing the new law. Unfortunately, VA's initial report
lacked many details.
GAO has reviewed VA's plan and I look forward to hearing
the Comptroller General's assessment. In particular, I am
looking forward to GAO's input on how VA can better implement
the reform so that we can finally have an appeals process that
works for our Nation's veterans.
I am also interested in learning whether there are
additional efficiencies that VA can leverage to more
effectively and timely process the backlog of legacy appeals, a
huge deal in most districts.
VA's current plan to reduce the existing backlog is to use
the authority we gave it to test the new appeals system. VA's
plan is called the Rapid Appeals Modernization Program, or
RAMP. Under RAMP, many veterans who have appeals pending are
being given the option to withdraw their existing appeal and to
transfer to the new system. I have several concerns about RAMP,
including why the board, which has more than 170,000 pending
appeals, is not included in the program. Another concern is the
lack of veteran participation in RAMP. VA has indicated that
the data gathered from RAMP will help inform decisions on
implementation of the reforms. However, according to VA, only 3
percent of eligible veterans have chosen to participate in the
program. Unless more veterans participate in RAMP, it is hard
to see how VA will collect enough data to develop an effective
plan to successfully implement appeals reform.
Realistically, VA is running out of time to address these
issues if the Department hopes to implement the new system by
February of 2019. In light of the low participation in RAMP, I
am hopeful that VA will share with us some additional ideas for
a data-driven approach to prepare for full implementation of
the new appeals system.
I hope that we will be able to have a production discussion
on ways to assist veterans with legacy appeals and to ensure
that the transition to the new system will be seamless.
The Comptroller General, I know that your team has been
very involved in considering some of the challenges for
implementation; I am looking forward to your expertise on this
issue. Everyone here wants the same thing: to develop an
appeals process that will give veterans accurate and timely
decisions on their claims.
Before we begin the hearing, I want to say that in our last
Full Committee hearing I mistakenly credited the wrong veterans
service organization for helping with the construction of the
new Aurora hospital dedicated to treating veterans with spinal
cord injuries. And I recently visited that facility and, of the
many things that are not going right at that facility, this is
one of the shining stars, I think. It was an incredible visit
and I think it is going to be one of the--probably, if not one
of the best, the best spinal cord injury treatment facilities
in the world, I absolutely believe that. And I wanted to
correct the record and personally thank the Paralyzed Veterans
of America for their work in Denver and for all they do for our
veterans. I want to apologize for misspeaking, and look forward
to continuing the invaluable partnerships and friendships we
have with our VSO partners.
The Chairman. I will now yield to Ranking Member Walz for
any opening statements that he may have.
OPENING STATEMENT OF TIMOTHY J. WALZ, RANKING MEMBER
Mr. Walz. Well, thank you, Mr. Chairman, and thank you to
all of our witnesses here today for the work that you are
doing.
The Veterans Appeals Improvement Modernization Act that
passed this Congress is designed to be the most significant
reform affecting VA disability compensation appeals in a
generation. It also highlights something that all of us that
are here are very proud of, is the bipartisan, the bicameral,
and this one crossed administrations to get this right for
veterans. This is a shining example of when we decide to work
together, we decide to put all of our resources towards the
care of veterans, how things can work.
I do want to recognize the work of our Subcommittee chair,
Mr. Bost, and Ranking Member Ms. Esty, who sponsored the
original bill together, put a tremendous amount of time to get
us to this point. Both of you are a credit and I, as a veteran,
am grateful to see your commitment.
If we get this right, the current, out-of-date system we
know is not serving veterans we transformed into one that
veterans can trust fairly and timely, perhaps most of all,
respectful of their service.
Today's hearing gives us an opportunity for the Committee
to take a look at how VA is preparing for that February 2019
launch when the new system officially rolls out, just 12 months
from basically tomorrow. I am hoping today that we are going to
hear about the plan is on track; performance measures that are
in place; one that is near and dear to everyone who has been
here for any amount of time, how the IT is being handled and
how it is going to interplay with getting this right;
authorized staff have been hired and trained; regulations are
drafted and being vetted with VSO stakeholders.
I want to thank GAO for the work it has done at our request
to assess how the planning is going. Their report makes it
clear that key elements are either incomplete or missing. This
raises concerns, but I would also like to think that--and we
have spoken with this and, Deputy Secretary Bowman, we talked
and I really think the attitude on this is right--a positive
step forward and opportunities exist. That is our job. We are
12 months out, we are providing oversight, you are working with
us. GAO is a partner to give us the points. All of those things
are how it should work.
Stakeholder groups are here, the VSOs and NOVA, your input
has been integral in getting us to this point. Your willingness
to form the work group 3 years ago and commit to passage of the
Appeals Improvement Modernization Act was unprecedented. Those
who are veterans of this process know this is not an easy thing
to do and that commitment to getting it right, and I think the
Chairman's commitment as making sure the decisions we make
here, those most impacted by them, are at the table when we
make them, that is an honorable place to be.
The Chairman has held numerous hearings, provided a variety
of stakeholder opportunities, making sure that during the
entire process it was transparent, it was inclusive. We were
working for a common goal and that is something I am grateful
for.
If I could, Mr. Chairman, just for 30 seconds, I would like
to yield my final bit of time to one of our chief authors, Ms.
Esty, the gentlewoman from Connecticut, for 30 seconds.
OPENING STATEMENT OF HONORABLE ELIZABETH ESTY
Ms. Esty. Thank you, Ranking Member Walz, for yielding me
the time to speak a little bit about the Appeals Improvement
and Modernization Act.
I was proud to work on this important legislation with my
colleague and friend Mr. Bost, and we are all here in the hope
that this bill and this process is actually going to allow
veterans to receive a decision on their appears in a fraction
of the time that it is currently taking. Whether the news is
good or bad, veterans deserve to have certainty about their
benefits and they deserve to be served by a process they can
trust, timeliness, and accuracy.
And I want to thank the many veterans and advocates who
have worked with us in crafting this legislation, and you will
be key in ensuring that this is implemented properly. From what
I have read from the testimony submitted today, there is a
great deal of work left to be done. We are going to have many
questions regarding resources, timelines, and goals for
successful implementation in this process, but it is my hope
that with all of us working together, that is the Committee,
that is the VSOs, and that is all of you at the table. We can
do right by our veterans, get this process moving, get it
timely, and get it accurate.
Thank you and I yield back.
Mr. Walz. I yield back, Mr. Chairman. Thank you.
The Chairman. I thank the gentleman for yielding, and I
thank the gentlelady.
Joining us on our first panel is the Honorable Thomas
Bowman, the Deputy Secretary for the Department of Veterans
Affairs, and he is accompanied by Cheryl Mason, the Chairman of
the Board of Veterans' Appeals. And welcome to the people's
House, Mr. Bowman, from the Senate side.
Also the Chairman of the Board of Veterans' Appeals, David
McLena--I will get that right in a second--McLenachen, the
Director of Appeals Management Office at the Veterans Benefits
Administration; and by David Barrans, Chief Counsel, Benefits
Law Group, of the Office of General Counsel. The Honorable Gene
Dodaro, the Comptroller General of the United States Government
Accountability Office; he's accompanied by Elizabeth Curda, the
Director of Education, Workforce, and Income Security Team for
GAO.
Thank you all for being here this morning.
Deputy Secretary, Mr. Bowman, you are to begin. You are now
recognized for 5 minutes.
STATEMENT OF THE HONORABLE THOMAS G. BOWMAN
Mr. Bowman. Thank you very much, Chairman Roe, Ranking
Member Walz, and Members of the Committee.
Just as you indicated, I won't go over the names of the
individuals who are accompanying me, you have already done
that. Thank you for inviting us to discuss implementation of
the Veterans Appeals Improvement and Modernization Act of 2017.
VA, the Congress, VSOs, and veterans said many times
before, appeals modernization was long overdue. When
legislation was passed after an unprecedented collaboration
between Congressional Committees, veterans service
organizations, and the Department. We have never seen, at least
in my experience, where there has been that degree of intense
collaboration over a long period of time that ultimately
resulted in this legislation.
The new system is easier to understand. Veterans will be
able to tailor reviews to their needs, and it will provide both
faster decisions and greater transparency.
As we look forward, VA, we believe, is on track for full
implementation by February 2019, as the legislation requires.
There is still a lot of work to be done, as was mentioned, and
our implementation strategy is synchronizing efforts across the
Department.
VA is developing and updating IT systems with our digital
service partners. We are hiring and training our people,
gathering data for trend analysis and metric reporting. We have
drafted and we are reviewing proposed regulations, which I know
is of interest to the Committee. We hope to publish those
regulations, if we can, and if they have been appropriately
processed as soon as possible, but hopefully by the third
quarter of the fiscal year.
VA is tracking progress with timelines and goals,
milestones and deadlines, that will improve based upon GAO's
recommendations. Once implemented, veterans can expect on
average processing time of 125 days for higher-level reviews
and supplemental claims, and 12 months for appeals to the board
when they choose direct review of the issue without a hearing
or submitting additional evidence.
The RAMP program: in November we launched our pilot Rapid
Appeals Modernization Program, or RAMP. Today, RAMP is giving
veterans whose appeals involve compensation issues the choice
to opt-in to the new supplemental claim and higher-level review
lanes.
With RAMP data, veteran, congressional, and VSO feedback,
we can refine the processes and correct the problems before
full implementation. Over this next year, that is our
obligation to work collaboratively not only with GAO, but with
the Committee, veterans service organizations, and veterans
themselves.
We are intent on shaping a veteran-centric system that is
responsive to their needs and preferences. For instance, RAMP
helped us test and refine decision notices so that they are
complete and easy to understand. And RAMP will help better
estimate workload, design precision metrics to evaluate new
processes and forecast resourcing requirements.
Mr. Chairman, we have always seen appeals modernization in
two components: needed legislation to look forward and more
timely resolution of legacy appeals. So, while implementing the
new process, we are still squarely focused on accelerating
legacy appeal resolution. It is an effort we began to initiate
well before modernization was passed.
Last January, we realigned VBA's administrative appeals
program under our Appeals Management Office. The idea being one
place, one official, for management oversight and
accountability. That senior official in that position is here
today and that is Mr. McLenachen.
With that change, VBA increased appeals production by
approximately 24 percent and decreased inventory by 10 percent.
And VBA resolved over 124,000 appeals during the fiscal year
2017, a 10-percent increase.
For its own part, the board is accelerating legacy appeals
resolution also.
They are growing the attorney workforce, re-engineering
processes, designing and testing new case review techniques,
and issuing timelier decisions after hearings. In fact, today
the board will begin piloting a new interactive decision
template that will help attorneys in preparing their decisions.
Thanks to those changes, the board is on target to deliver
over 81,000 decisions this fiscal year, 28,000 more than last
fiscal year.
After implementation, the board will continue maximizing
efficiencies and improving technology and processes, and
eligible veterans with legacy appeals before the board can
choose to opt in to the new system. So, both RAMP now and the
opt-in choice later will let veterans choose the more efficient
new system, and that will further decrease legacy inventory and
provide quicker resolution for all veterans.
In the area of transparency; transparency is fundamental to
rebuilding veterans' trust. And it is not only trust of
veterans that we are trying to develop and maintain, but also
the trust of Congress, VSOs, stakeholders, and the American
public. So we will publish metrics for both the new processes
and the legacy processes.
In closing, I would like to make two points. First, Mr.
Chairman, we want to get this exactly right, as you indicated
in your opening. It is a period in time that we believe is
seminal. We believe we have turned a corner after the hard work
of 2 years that produced this legislation. We will improve
during this transition period. There will be needs, there will
be adjustments, and there will be changes as we go forward
based upon what we learn during the RAMP process. So we welcome
recommendations by you, the Committee, and your staffs, any
that can be offered.
We encourage you to visit VBA and the Board. We hope that
you would see for yourself what they are doing; words don't do
it justice. And we ask that you and your field offices tell
veteran constituents about the RAMP option. VBA staff in their
field offices are going to be there, available to you when you
need them, to help spread the word and educate your
constituents.
Secondly, Secretary Shulkin has been very clear about it,
appeals modernization is truly transformational because of the
greater choice it gives veterans in the appeals process,
something that has not existed until the legislation. It is
change VA needs and veterans deserve. We also need truly
transformational change in regard to benefits more broadly. The
Committee will be very involved with this effort as the
Secretary looks to the future.
VA benefits should be about helping veterans achieve a
lifetime of independence and success; that is economic
opportunity, physical and mental well being, and financial
security for the severely disabled. And veterans should know
exactly what to expect when they leave the military and
transition to the veterans status in a very reliable and
trustworthy way.
Lincoln's pledge in his second inaugural, ``Care for him
whom shall have borne the battle, and for his widow and for his
orphan,'' are words that often are mentioned as a starting
point. We are, as far as the VA is concerned, the word
``care.'' This is part of a continuing evolution of the word
``care'' from that point in time and a significant part of the
care for veterans is what has been accomplished by this
legislation.
We appreciate the leadership that has been demonstrated by
this Committee. But before closing, sir, I would like to
request formally, as we sit here today, even before we have
discussed where we are with respect to progress not only on
RAMP towards February of 2019, I would like to request that the
Committee invite us back before your August break, so we can
give you an update and we can share with you what changes have
occurred.
We do expect and we will follow through on the obligation
on quarterly updates, but based upon conversations that I had
with both the Chairman and the Ranking Member last night, we
are going to offer our approach that on a monthly basis we have
our staff interact with your staff to make sure that questions
are answered as questions arise and not have to await a later
point in time.
We are working against the clock; time is of the essence.
VA, the Secretary is committed that by February 2019 the
implementation of the new program is going to be on track and
is going to occur. Veterans deserve it and we are going to give
it to veterans.
I look forward to your questions.
[The prepared statement of Thomas G. Bowman appears in the
Appendix]
The Chairman. Mr. Bowman, thank you for your testimony, it
is much appreciated.
Mr. Dodaro, you are recognized for 5 minutes.
STATEMENT OF THE HONORABLE GENE L. DODARO
Mr. Dodaro. Thank you very much, Mr. Chairman. Good morning
to you, Ranking Member Walz, Members of the Committee. I am
very pleased to be here today to discuss GAO's analysis of VA's
appeals reform plan.
I am very pleased that VA is trying new approaches to this
longstanding problem. It has been on our high-risk list since
2003. I also want to commend this Committee and the Congress
for passing legislation and including in that legislation a set
of requirements to guide VA's planning efforts.
Now, our analysis of the plan against the legislation
requirements showed that VA met 17 of the 22 required elements
in the plan, partially met four, and did not meet one. Now,
some of the areas where we found gaps were in the total
resources needed to implement the new reform plan, as well as
the legacy plan; detailed metrics to track progress and to
identify issues that needed attention; and also a lack of
milestones for reducing the legacy appeals in terms of trying
to bring down the backlog and the workload.
We also assessed the plan against sound planning practices
the GAO has used over the years to evaluate plans across the
Federal Government. We found that the VA was using certain
sound planning practices, but we found also that there were a
number of other areas that could benefit from better planning
practices.
For example, in the performance management area, VA had not
included timeliness goals for all the options that are going to
be used under the new appeals program. Also, there were no
measures set in a number of other areas such as the accuracy of
the reviews in terms of what was needed to be achieved, the
satisfaction of the veterans with the new process, or the cost
involved. There was also not clear articulation of how VA was
going to compare the new process to the legacy process, and
also it was not clear how they were going to align resources
between the new system and the old legacy system while both
were in operation over time.
In terms of project management, there are a number of areas
that were still missing detailed plans. Most notable, there is
not yet a complete schedule for implementing the information
technology reforms that need to be made to support the appeals
decision-making process.
Also, in terms of managing the risk, one area that we think
can be improved is that the Rapid Appeals Modernization
Program, the RAMP program, only tests appeals that go to VBA
and not to the board. And so that is going to leave a big gap
in terms of trying to figure out how many veterans might
directly appeal to the board and not go through the RAMP
process. So we have got some suggestions for things that could
be done to test that, so that they will have full information
going into detailed implementation later this year.
So we have a series of recommendations that we will be
making that will address all these gaps between the law and the
plan, gaps between the plan and sound planning practices. We
believe and strongly encourage VA to expeditiously and
effectively implement our recommendations. We think this will
position them to have a greater chance for success in providing
more timely and efficient service to the veterans. And we think
if those recommendations are not implemented effectively that
it increases the risk that this appeals process will not work
as intended.
So I want to assure this Committee, Mr. Chairman, Ranking
Member Walz, and all Members of the Committee, GAO remains
firmly committed to continuing to assess VA's efforts in this
regard and continue to offer constructive suggestions, so that
we can achieve the outcomes, Mr. Chairman and all share, and
that is better service for the veterans.
So I appreciate the opportunity be here today and look
forward to responding to questions.
[The prepared statement of Gene L. Dodaro appears in the
Appendix]
The Chairman. I thank the gentleman for his testimony.
I will now yield myself 5 minutes for questions and I guess
I will start with Mr. Bowman. You just heard what Mr. Dodaro
said; do you agree with the GAO's assessments and are you
prepared to meet those four or five deficiencies, partial
deficiencies and full deficiencies that he mentioned, in a
timely fashion?
Mr. Bowman. Mr. Chairman, yes, we agree. And I can assure
the Committee that we are going to be working closely with GAO
at every step along the way where they come up with what they
think to be additions to what has already been offered as
recommendations. We will follow through unequivocally.
The Chairman. And the second question, which is incredibly
important, is the technology piece. If you can't gather and
analyze the data, we are going to just be whistling in the
wind. And when we start this, it ramps up full essentially a
year from now, this is a massive change in how things are done
at VA. And with so few people--I know we talked about this last
night--how do we encourage--and I will give you an opportunity
to do that for all of our Members--how do we encourage more
veterans to switch from a system they know to one right now
that is new and is untried, how do we convince them to do that
that will help speed up their claims process? Is it to talk to
us and let our people at work in our offices talk to the VSOs?
The veterans service officers who work out there in the field
every day with veterans, are they informed about this?
Mr. Bowman. Mr. Chairman, I think all of those are
necessary components. I think the heaviest obligation is on the
part of the Department of Veterans Affairs; that we need to be
able to identify marketing strategies and approaches, make
available the resources that are going to be necessary for that
marketing approach; working collaboratively with VSOs, Members
of Congress, the Hill, veteran and civic organizations out in
the community, not justthe veterans service organizations.
I think that the approach that we are beginning to see
emerge, even though the cohort of veterans that have
experienced the benefit under RAMP is very small, I think that
with each success story it can breed and demonstrate a message
out into the community that more veterans, if you are willing
to give what is being offered and explained to you as a new and
different approach to resolving your appeal, each one of those
can become an echo chambers on its own to further encourage
other veterans. And I think that as to marketing, a different
marketing approach is needed utilizing not only what we have in
the community, but also whatever suggestions might be able to
come from Members of Congress and veterans service
organizations.
The obligation is for us to message to veterans that this
new approach is worth their consideration.
The Chairman. I agree with that.
And, Mr. Dodaro, just a couple of questions for you. When I
was reading your testimony last night, what do you mean by
fully addressing risk, what did that mean?
Mr. Dodaro. Well, the risk, basically, is try to reduce the
number of unknowns that you have going into your full
implementation status. And right now, with the approach that is
being taken to test, to use the flexibility Congress has given
on the RAMP program, they are only testing veterans as it
relates to exercising the two options to go to VBA and not
directly to the board.
So you really don't have any idea if you don't do more
testing, and we think there could be some surveying done of
veterans and whether they would pick one option or the other.
If you don't know that, you don't know how many resources to
allocate to VBA----
The Chairman. Got it.
Mr. Dodaro. --or how many resources to allocate to the
board going into this.
And also risk is not having a detailed plan to implement
your information technology goals, there is not an integrated
plan. There are a lot of things that have to be done that are
interrelated. You have to have the IT systems up and running in
a period of time, you have to have people brought on board and
trained up to date. So there are a lot of pieces that need to
come together for this to successfully be implemented.
I am also concerned that in the RAMP exercise, even for the
VA option, they are not allowing veterans to appeal the RAMP
decision until the new process is going to be implemented in
February 2019, and I just don't know and I think VA needs to
try to find out whether or not that is deterring anybody from
picking the RAMP option even at this early stage because their
appeal gets set aside, if they want to appeal. Now, if they are
successful, that is a benefit and everybody wins in that case,
but if not, then I don't know how that is playing into
veterans' thinking.
So there is a lot of risk about how veterans are going to
pick among the five options that will be available and how VA
will be positioned itself to fully implement this with as low a
risk as possible.
The Chairman. Thank you. My time is expired.
Mr. Walz, you are recognized.
Mr. Walz. Thank you, Mr. Chairman, and thank you all.
Deputy Secretary Bowman, I do want to say thank you. I am
very appreciative of the attitude you have taken of seeing us
as partners in this collaborative, your very generous and I
think wise decision to continue to loop us in on an ongoing
basis, and to view our partners at GAO as partners in
excellence of delivering that. It is the right way to go, it is
very refreshing, and I think it puts us all on the same page.
And, Chair Mason, welcome to you. I know that amongst this,
you haven't got to speak yet, but we know that this is all
falling on you and I am grateful for that. I know that you have
been out there, you have helped town halls with your folks
before. So I have got just a couple questions maybe coming
towards you.
In the early stages here, it has taken about 28 days to
process the 47 claims under RAMP. Again, maybe going to that IT
piece, it may have been answered, but I would like to hear it
from you. If you think that would be ready, say, for example,
if the RAMP opt-ins shot up to 20,000, if we get them in, and I
know right now we have got 3.5 percent buy-in from the folks.
And I think you did this right, you went to the oldest cases
first and asked those folks, but I know as a veteran myself,
there is no way in hell I'm getting out of line at this point,
if you will, if that is the way I think maybe they are viewing
it, and now you are going to go to newer claims, which I think
there is more of a chance you may see a ramp-up in that. How
are you measuring those? How are you going to handle for those?
And I would assume you want to see an influx come, because
you are going to have to stress-test this system now, it is the
best time to do it.
Ms. Mason. Thank you, sir. And I will let you know that the
board is very supportive and collaboratively working with the
VBA on the RAMP program, but I am going to hand it over to Mr.
McLenachen, because VBA is handling the RAMP----
Mr. Walz. Is your microphone on?
Ms. Mason. I'm sorry, is it on? Is it--I'm sorry, is that
better?
Mr. Walz. Yes, that's good.
Ms. Mason. Okay, thank you. The board is supporting the
RAMP initiative in the Department, and we are collaboratively
working with VBA and our VSO partners and GAO. VBA has the lead
on the RAMP program, so to answer those specific questions, I
am going to let Mr. McLenachen take the lead on those, and I
will answer anything that comes back to me.
Mr. Walz. Great.
Mr. McLenachen. Good morning. I hope that at some point,
real soon, we have that problem where we have too many people
opting in, I really do. So we are prepared for that.
What our plan is, is that, yes, the initial intake has been
lower than we hoped, but as you pointed out, what we started
with were absolutely the oldest appeals that we have. Right now
I can tell you the average time from initiating an appeal to
opt-in, for those that we have received, is an average of 1506
days. So, we are truly starting with the oldest, and those are
likely the ones, as we have learned, that may be less likely to
opt in. So, as you have said, we are starting this month with
about 10,000 new appeals, as well as continuing with the
oldest, so a total of about 35,000 invitations going out this
month.
Now, to prepare for that, and hopefully we do get an
increased workload, we will be rolling out from our Appeals
Resource Center here that is processing all of them that we
have received so far to regional offices. Just next week, we
are starting to train the regional offices that are going to be
receiving these RAMP claims first and then we will roll to
other offices as the workload increases.
So we have a plan for doing that, and we are kicking it off
this month.
Mr. Walz. Fabulous. Thank you.
Chairwoman Mason, I would go back to you. In September, we
received--and this is prior to you--we received a letter from,
at that point in time it was about 20 percent of your--it was
100 attorneys, and I believe at that time you had about 550 and
now you are up closer to 990 or somewhere about right--
expressing concern about what they described as lack of
adequate training, poor working conditions, unrealistic
expectations. I will say, our team has been out and toured the
resources center, I know you have held the town hall; by all
accounts, a good, positive feedback. And I think it is worth
noting that your background and your family services, you have
a deep commitment to this, a father in World War II, a brother
in Vietnam, and your husband is in line, I believe, possibly on
this.
So could you just give us a little bit of how you are
addressing that in just a short amount of time and if you are
feeling some of the--maybe the stress of that is starting to be
relieved, so that that workforce is prepared, trained, and
ready to go.
Ms. Mason. Absolutely, sir. Since being sworn in as
Chairman in early December of 2017, I immediately began a
series of meetings with my staff, starting with my judges and
my attorneys, rolling out to the administrative team, as well
as my leadership team.
And the other thing that I am doing on a regular basis is,
I believe communication is extremely important, and so weekly I
send out emails as to what is going on within the board, as
well as what is going on in the rest of VA, so that the staff
knows what is happening.
The other piece that I am doing is I am walking around. I
am being extremely visible, I am being available to my staff; I
think that is extremely important. That was not something that
the board had seen regularly with leadership before. If they
don't see me and they don't feel they can talk to me, then I am
not going to hear their concerns.
As to the specifics of the letter as with respect to
training, we have a very robust training program at the board.
We are currently bringing on new attorneys starting this next
month where we have a very--it is a 3-month program where we
train our new attorneys. Our judges are very involved once the
attorneys are handed off from the additional training. But in
addition to that, we also continue to run regular training at
the board to ensure that our attorneys and judges are up to
speed on the latest law. We have a quality review team who
looks at our quality standards, basically using a statistical
standard from across the Government. Our current quality rating
is 93.6 percent.
As you did indicate, my staff has grown quite a bit this
year. The staff started out the year around 667 attorneys or
staff and we are up to 940, about. We are going to 1,050 in
fiscal year 2018, to include we are adding some judges to
replace those who retired.
So as far as the space issue, we have a very robust
telework program, as well as allowing remote work, and I expect
to expand and continue that as much as I can.
Mr. Walz. Well, thank you, ma'am, and it is being noticed.
So, thank you for that.
Ms. Mason. Thank you.
Mr. Bowman. Mr. Walz, if I could offer just two comments
based upon earlier questions that you had, especially with
General Dodaro.
The concern about not being able to have metrics and an
understanding of the impact that a veteran may feel about not
being able to exercise an option to go to the Board. I think
that is something that during this approach over the next year,
that is something that we are going to have to take a stronger
look at, because I think it is important. Even though a
veteran, at the end of the day, if he has exercised his choice
in two lanes under RAMP andthey say I want to appeal to the
Board, they can appeal. But, the problem is obviously there
isn't going to be any action on it until after full
implementation.
So I think that we are going to want to take another,
stronger look as to how we may be able to somehow do some
assessment and testing.
The other has to do with the rollout of invitations to
participate in RAMP out into the regional offices. I can tell
you that the Secretary's desire is to be aggressive and not
pass it. That the preference is going to be we will ask and we
will invite more. Because the more that we ask, the greater the
cohort or pool of veterans that we are going to be able to
assess as to how and when and why they may or may not make a
decision to enter it.
So I would like to assure the Committee that it is not
going to be a passive approach, it is going to bean overly
aggressive one as a way of gaining as much data in a short
period of time that we have before full implementation.
The Chairman. I thank the gentleman for yielding. And I am
going to begin to insist, because we have two panels today, to
be respectful to our second panel and we are going to hold you
to 5 minutes.
I will now yield to our Chairman of the DAMA Subcommittee
and a lead sponsor of this bill, Mr. Bost.
Mr. Bost. Thank you, Mr. Chairman.
Deputy Secretary Bowman, the comprehensive plan indicates
that the VA would submit the proposed regulations to OMB on
January 17th, 2018, you indicated the publication in the third
quarter. Has VA submitted the proposed regulations to OMB yet
at all? If you have not, why not?
Mr. Bowman. The Department, is going to try and have an
aggressive approach to get it out of the Department over to
OMB. As I indicated, it is a target, it would be the
Secretary's target to look at the third quarter, and my effort
or my responsibilities as the Deputy is going to make sure that
the pressure is felt to see that achieved.
Mr. Bost. And that was going to lead to the second part of
my question, because I need to find this out, because when we
put the language together we are real clear, we work with
everybody to make sure. Will the Department be prepared to
fully implement the Appeals Improvement and Modernization Act
on February 19th, 2019, including implementation of the
regulations?
Mr. Bowman. That is my goal, that is the Secretary's goal,
and it is our intention to make sure that in February there is
full implementation and that there will be regulations in
place.
Mr. Bost. I am just watching the clock click very, very
rapidly and where we are at isn't necessarily, I feel, where we
need to be at this time, but we will work with you every way we
can.
So, I would also have a couple questions, Comptroller
General. Does the VA comprehensive plan and processing legacy
appeals and implementing the modernization appeals system fully
satisfy requirements of the mandate?
Mr. Dodaro. No, Mr. Bost. As I mentioned, 17 of the 22
elements that were in the plan that were fully addressed, four
partially and one not addressed at all, we have pointed out
where those areas are and made recommendations that VA fully
implement all those different requirements.
Mr. Bost. Did the comprehensive plan include significant
information for GAO to effectively evaluate the VA's plan?
Mr. Dodaro. No. There are some details that are lacking,
which I have talked about and Deputy Secretary Bowman has
talked about, they are working on. Those details are really
important details and I think there are some areas. One that we
pointed out in our testimony is, you know, having defined the
end state for where VA wants to be once they have everything
implemented, and along the way what are the critical success
factors in assessing RAMP and incorporating those lessons into
their broader planning efforts.
So there are a lot of details that need to be worked out
yet and we have made a lot of recommendations we think can help
those gaps, but they have to be expeditiously implemented in
order to, you know, have timely, full implementation.
Mr. Bost. Well, let me just, if I can, make a couple
statements here, the concerns that I see.
When we put the language together, we worked together in a
bipartisan manner, worked on it. Even Congresses before us
worked on seeing this issue, knew what we needed. Dates we set
working with you to put those dates in place, working with VSOs
to put those dates in place. My concern is, is that we are
going to run into what the general public and especially our
veterans keep seeing is, is that we put plans out in and set
timelines throughout legislation and then the implementation
through the agency does not occur for whatever reason. And I am
extremely concerned, because we have made a commitment to our
veterans to get this problem fixed.
And meeting with each one of you, we all have the same goal
and I am not going to drag somebody over the coals here, but we
must get this done. There is nothing worse than the stress that
these veterans feel of sitting and waiting and trying to go
through a bog of paperwork and not understanding the process,
and an over-burdensome process, that they served their time,
they did what they were supposed to do. They are in a situation
that they need an answer; either agree or don't agree, but they
need an answer. It puts themselves and their families in
stress. And I hope that we move forward and that these dates
are met.
With that, Mr. Chairman, I yield back.
The Chairman. I thank the gentleman for yielding.
Mr. O'Rourke, you are recognized for 5 minutes.
Mr. O'Rourke. Mr. Chairman, thank you. And I want to thank
Mr. Bost and Ms. Esty for their work on this. I also want to
acknowledge Ms. Titus, who is here, who has worked on this in
previous Congresses and has really been a champion on this
issue, and I am so glad to see that she is here today to join
us and I am looking forward to her questions.
Mr. Dodaro, I wonder if you might expand a little bit on
some of your concerns and give us some guidance on how we can
measure progress against them, because I heard you outline some
missing aspects of the plan. I heard Secretary Bowman
essentially agree with the assessment, and so it seems like
conceptually there is agreement there, but I would love for you
to help this Committee with its oversight responsibility in
measuring progress against the Secretary's commitment.
For example, you mentioned timeliness goals that are
missing, and you said perhaps the most important thing, which
is we have not defined the end state. So, without that, we will
never really know how we are doing. People could say we have
hired a bunch of people, we are working really hard, we
processed this many more claims, but if we don't have a defined
end state, you know, I don't know what the goal is and so I
don't know how to measure against that.
Could you expand on that a little bit and perhaps give us
some defined goals and when we should be able to expect
progress on this?
And the last thing I will say before I allow you to answer,
I loved hearing Secretary Bowman ask to be invited back this
summer so that we could have this conversation.
So, Mr. Dodaro, I will let you answer.
Mr. Dodaro. Yes, thank you very much.
Your articulation of the situation is exactly correct. Some
of the timeliness goals, for example, there are goals for the
two VBA lanes that people could choose, there is a timeliness
goal for the lane to the board where people don't submit
additional evidence. But if they want to submit additional
evidence and it is either with a hearing or without a hearing,
which are the other two options, there are no timeliness goals
there set at all.
There are goals that the VA witnesses mentioned they are
working on in terms of what is the accuracy, you know.
Timeliness is important, but accuracy is as well. Veterans'
satisfaction with the process is important. There is no
measures of when they are going to bring down the legacy appeal
process. You could go into full implementation and still have
legacy appeals there and, without those measures, you don't
know, you know, at what point do you want to be where you have
no more legacy appeals and you are only using the new options
going forward.
You don't really know what the resources are going to be
yet in order to implement the new process, particularly as it
relates to the board, because RAMP is not testing the direct
appeals to the board. And I am pleased to see Deputy Secretary
Bowman say they are going to try to do that, I think it is
imperative.
You know, under the law, the Secretary has to certify that
they have all the resources that are available in order to
implement the new process and handle the legacy process. And,
under the law, they are also supposed to certify that they have
all the training and everything done, and he has to articulate
what the outcome measures are going to be for the new system as
well during that period of time. And so, right now, I don't
think they are prepared, you know, to have all the information
they are going to need in order to certify that they are ready
to go forward.
So, based on the plan so far, I am not confident that they
will be ready by February 2019 unless they deal with these gaps
and have a fully informed plan and a fully informed
certification.
Mr. O'Rourke. And, Secretary Bowman, thinking back to a few
Secretaries ago, Secretary Shinseki said by this date certain
no first-time service-connected claim will languish more than
125 days. And so we knew the number of days, the date by which
we were going to try to achieve that goal, and we were all
marshaled around that with the resources, the oversight, the
authorization, and the performance.
Can you give us a similar goal for the claims that are
languishing in appeals right now?
Mr. Bowman. What I would like to do is to turn that over to
Chairman Mason to speak to the issue of appeals that are
relative to the Board and see where your follow-on questions
would be. But the only comment I would add is that I do think--
and, again, it is in support of where Comtroller General Dodaro
is, that there are gaps in the plan. GAO has identified where
those gaps exist, we acknowledge they exist, and part of the
responsibility and the reason I said that we wish to be invited
back is to provide how we are going to address those gaps in an
expeditious and timely manner. But I will turn it over----
Mr. O'Rourke. And I will just note that I am out of time,
so unless we have that specific answer to that specific
question, I will ask that you give that answer back to the
Committee in writing in a reasonable period of time.
Ms. Mason. I will follow up.
Mr. O'Rourke. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman for yielding.
General Bergman, Chairman of the Subcommittee on Oversight
and Investigation, you are recognized.
Mr. Bergman. Thank you, Mr. Chairman, and thanks to all of
you for being here today.
A question related, but kind of unrelated. We have got some
World War II veterans still out there and some Korean War
veterans, but especially the World War II folks are getting up
there in age. When you plan and try to implement any process,
you know you don't do a one-size-fits-all, because then that
size fits no one. Is there currently exception for, let's say,
an age, a World War II veteran or a Korean War veteran to get
expedited handling of their case based on age?
Mr. Bowman. The basic answer is, yes, and I will turn it
over to Chairman Mason to explain in detail.
Ms. Mason. Yes, sir. Currently at the board we have the
advance-on-docket provisions, where any veteran who is 75 or
older, has severe health issues or financial issues, there is a
provision for other situations as they motion for those, those
cases are advanced on the docket and moved forward.
So that is exactly how we are working those cases.
Mr. Bergman. When they are advanced, are they advanced--
again, could you give me a rough order of, let's say that
veteran, as you described, over 75 and is in a dire situation,
could they expect any kind of timeline today?
In the last couple of weeks, I have been back in the
district and talking with, you know, this group and that
question was asked, so I wanted to be able to give them an
answer. Expectation timeline?
Ms. Mason. Well, what happens when they make the motion for
the advance on the docket, we move those cases directly to the
judges. That generally is a 2-week timeline, depending on the
complexity of the case, but I would have to respond----
Mr. Bergman. No, close enough, that's great.
Thank you, because as one gentleman told me, I know I don't
have much time left, but I would really appreciate an answer.
And he was not mad, just he was hopeful that he could get that.
I know Deputy Secretary Bowman knows what a sand table is.
When we plan, okay, that is what we do, we lay it out. In sand
table terms, is it going to be possible for us, Members of this
Committee, to see the sand table for what we are talking about
here as the RAMP? At some point where we can actually get a
chance, whether you put it up here in D.C. and we come over to
view it and get a walk-through sooner rather than later?
It can be a prototype of your model for implementation, but
that would be, I believe, very helpful, because what I would
expect to see on that sand table is, here is the part of the
process, whether it is the IT process, whether it is the
notification of the veteran process as to how it is going to
work.
And alongside that, I would like to see two things: the
number of dollars and the number of people that are going to be
applied to that particular piece of the sand table, so that now
as we add up the people and the dollars necessary to implement
this new process for expediting the appeals and getting it
right, and the RAMP and the opt-in and the opt-out. So if we
just do a process without those numbers attached to it, for us
to support you in a fog of how much and how many is a
challenge.
So is that something that is possible?
Mr. Bowman. Sir, it is possible. And what I would like to
commit to is that, if you could give us about 60 days to up
with the sand table, and then hopefully within 90 days then
speak to Committee staff, indicating that we believe we have a
product, and then whether it is in a roundtable or in a group
session.
Mr. Bergman. You know, the back of it, we have our
roundtables here, Mr. Chairman. I think, based upon what you
just said, in a roundtable, because we have had roundtables
here, sooner rather than later. It doesn't have to be a full-up
round, but it has to be that working prototype that I believe
would be beneficial for all of us to be able to view.
Mr. Bowman. I think that we could provide you a reliable
sand table presentation within 60 days easy.
Mr. Bergman. Thank you very much.
I yield back.
The Chairman. Now, Marines speak in different languages.
I'm not sure what a sand table--I know what a roundtable is,
but maybe he can explain that later.
Ms. Esty, you are recognized for 5 minutes.
Ms. Esty. Thank you, Mr. Chairman. And again I want to
thank our colleague Representative Titus, who really carried
the water on this project for a long time and I am glad she is
able to be with us here today.
And I want to follow up where the General left off and
following up on the Comptroller General's observation. We know
you are working hard, but I think none of us have any comfort
to say we will be there by April of next year, but we are not
going to give you any interim timelines.
Monthly reports is great, but as against what? This has to
be broken down and nowhere more in the military do they
understand that. You need to have the metrics, you need to have
the people and the supplies and the money in place to do that.
And it just is stupefying to think that you can know you are on
track and we can do our job of oversight with just we will get
there. So I think we do need to.
So I want to drill down a little bit, Deputy Secretary, on
what you think you can have to us in 60 and 90 days, because I
think--and this is not to beat up on you at all, it is to say
we have a joint responsibility to get there and it needs to be
benchmarked, and we need to see what those indicators are, what
those metrics are. And if it is going to take funding or
personnel or there is a problem with something, we just aren't
doing our job, any of us, if we wait until April of next year
and say, oops, we missed the mark on four or five of these.
So can you tell me what you think you can have to us in 60
or 90 days exactly, because I think, again, with all due
respect to the General, not everybody understood exactly what
was on the sand table. So if you can break that down, what you
think you can provide us. Thank you.
Mr. Bowman. I think that the approach, using the sand table
analogy, is that we do have a starting point right now based
upon what we proposed back in January. That obviously was
looked at by GAO, found to be deficient in a number of areas,
less complete in others. I think that the approach is to start
with what has been the assessment and evaluation of the
deficiencies of what we are attempting to move forward with.
Take a look at those deficiencies, and create a depiction,
whether it be fiscal, whether it be FTE, operational, or
timelines, and be able to demonstrate where we are against a
timeline of February 2019 in those areas.
At the same time what we would be doing, in the monthly
assessment discussions that we would have, is to demonstrate
how improvement is being made on each of those identified
deficiencies, and then improve. If further needs are
identified, then they are added to the depiction.
So I think we start against where we know to be the
deficiencies as identified. As we progress and those that are
additional ones [deficiencies], we add them in, but in each of
them we show solutions.
Ms. Esty. So, if I may, among the things we heard,
timeliness, accuracy metrics--I mean, these are fairly
fundamental--satisfaction level, cost, I mean, all of those are
important. So, let's name--these are not just deficiencies,
these are core issues about accuracy and timeliness, which is
what we are after, right?
Mr. Bowman. Sure.
Ms. Esty. As well as satisfaction of the veterans, which is
the point of having all of this.
On the RAMP question, on doing this outreach, I think all
of us are wondering a little bit, the uptake has been only 3
percent. Will you be doing an evaluation to try to figure out
those who are choosing to opt in, even with these really old
claims--and I agree with Mr. Walz, it is understandable they
would be unlikely to get out of line--there must be some
reason, is it that VSOs were encouraging them to? Is that
because they have despaired of ever getting a decision?
You know, I think that is going to be important for us to
understand, because it does go to the backlog. And I think we
all share some concern that we have this new process, is the
backlog just going to fall off the table, and we have got these
people who have been waiting and waiting and waiting. And so I
do think it is going to be important and I am mindful of the
timeline.
So if you can get back to us on really, seriously thinking
what--and what can we do as Members of Congress to assist in
that process----
Mr. Bowman. Yes, ma'am.
Ms. Esty. --in our own districts and with the VSOs to
encourage uptake, but you are going to need to be ready to
accept it, as Mr. O'Rourke said. We want them to accept it,
that is our mission, but you need to be ready when that
happens.
And I am going to yield back and I appreciate the
Chairman's allowing me that time. Thank you.
The Chairman. I thank the gentlelady for yielding.
General Bergman has asked this old Army Major to yield him
30 seconds to explain what a sand table is from a Marine, so I
am going to do that.
[Laughter.]
Mr. Bergman. Thank you, Mr. Chairman. Picture this table
right here with a border around it and 46 inches deep in sand,
that we as the Marine Corps use, and we configure that sand
based on the terrain we are going to fight on, disposition of
our forces, enemy forces, so we can assess battle plans, assess
movement. And then when we are done with that, we just level
out the sand and reconfigure it for the next battle.
The Chairman. Well, I am glad to know what that is.
[Laughter.]
The Chairman. Mrs. Radewagen, you are recognized for 5
minutes.
Mrs. Radewagen. Thank you, Mr. Chairman.
I too want to welcome the Deputy Secretary and the rest of
the panel. Thank you for your service and for appearing here
today.
Mr. McLenachen, to date, how many veterans have been
contacted by VA about RAMP? How many have elected to
participate in the program? And of those veterans who have
decided to take part, are you seeing any trends in terms of
which lanes are being selected?
Mr. McLenachen. Yes, actually 15,500 invitations to date.
We started out with 500 in November, we went to 5,000 in
December, and in January 10,000.
Keep in mind that the invitation says that you have 60 days
to get back to us, but more importantly, it also recommends
advice from a representative, such as a VSO or attorney that is
representing the veteran, which is an important point.
So far, 462 appeals have been withdrawn, that is 332 unique
veterans. So, some of those veterans have multiple appeals. The
grant rate is 61 percent, which is a very high grant rate. The
average time to process them, the ones that we have processed
so far, is 37 days. So veterans that have been waiting, as I
have said, an average of 1500 days have received answers,
whether that is a good answer or a denial, in a very short
period of time. We have awarded a million and a half dollars in
retroactive benefits so far for this first cohort.
So, yes, we need to get that rate up, but so far there is
every indication that veterans that are opting in are both
getting a timely decision and a good outcome.
Mrs. Radewagen. So what is the average timeline for a
veteran electing to take part in RAMP from start to finish?
Mr. McLenachen. So, good question. This has to do with the
issue of goals. We have always said that in the new process in
VBA, the two VBA lanes, that our goal is an average of 125
days, and that is our goal for RAMP as well and that has always
been our position. So, because we don't have the workload yet
to start rolling to regional offices, you are seeing a decision
time of about 30 to 40 days, which is very fast.
Mrs. Radewagen. So is the population of veterans being
invited to participate in RAMP a statistically valid sample,
you think?
Mr. McLenachen. I would not say that. We are not sampling
and taking a sample in that way. What we are doing is, and what
we have done so far is, in each appeals stage, so there are
four stages of appeals that we have in VA, we are taking the
very oldest appeals in each of those stages and inviting them
to opt in.
What we are going to do in February is, in addition to
those oldest within each of those stages, we are going to take
all new appeals that have come in over the last month and
invite them to opt in as well, just to, again, see what the
take rate is for those newer appeals and try to draw some
conclusions from that.
Mrs. Radewagen. Thank you, Mr. Chairman. I yield back the
balance of my time.
The Chairman. I thank the gentlelady for yielding.
Mr. Takano, you are recognized for 5 minutes.
Mr. Takano. Thank you, Mr. Chairman.
My question is to the VA and the GAO. In reviewing the
testimony, I was disappointed to see that the GAO and VA
disagree about whether or not the VA is meeting all of the
requirements laid out in the law.
Now, the VA is required to delineate the total resources
needed for the VBA and the Board of Veterans' Appeals to
implement and administer the new appeals system. Now, GAO
contends that the VA has not addressed this requirement, but
the VA disagrees.
Mr. Bowman, first to you. Can you further explain why the
VA believes it has met this requirement when the GAO argues
otherwise?
Mr. Bowman. Sir, is that with respect to the Board or to
the VBA?
Mr. Takano. Well, it is regarding there seems to be this
disagreement between the two entities.
Mr. Bowman. Sir, what I am going to ask is that Mr.
McLenachen address the question as it relates to the specifics
as to whether or not the VA has indicated that it is not going
to be able to offer those resources.
Mr. Takano. Okay.
Mr. McLenachen. I don't believe that we have a
disagreement. What the GAO has done is looked at our initial
submission of a plan and is offering us suggestions for
improving it and identifying specific improvements, which the
Deputy Secretary has committed that we will work with them on.
As far as the resources, currently our goal through the
RAMP program is to reduce legacy appeals, and that is going to
have a huge impact on how we work with GAO on what future
requirements might be. So we are very early in the process on
that.
Mr. Takano. Excuse me. In the GAO report on page 10, where
you lay out your assessment, it says, ``VA's appeals plan does
not include a delineation of the total resources required by
VBA and the board to implement the new system while addressing
pending legacy appeals.'' It is in your own report, you said
there is no disagreement. Can you respond to that?
Mr. McLenachen. That is correct. That is the one item, the
one requirement that GAO has concluded that we did not address,
and we did not address that because we are currently running
the RAMP program. GAOis asking us to project in the future what
resources might be required, to include future budget
formulations, and what might be required from those
formulations.
So I don't think we are there yet, but as the Deputy has
committed to, we are going to be digging into that issue. We
simply don't have that future projection of resources at this
point.
Mr. Takano. When do you think you will have that
projection?
Mr. McLenachen. Well, we will take a look at the report
that GAO sends to us with its recommendations and get to work
on it right away.
Mr. Takano. All right. Well, thank you.
Mr. Dodaro, can you add GAO's perspective on the matter and
have you seen any progress from the VA since your report came
out?
Mr. Dodaro. Well, first, our perspective is they did not
meet that requirement and we maintain our position in that
area. We have not had any further conversations. I am looking
forward to--based on the testimony today, to have further
conversations.
What I would say in this area, though, so far VA has not
done, from our standpoint, enough scenario planning and
assumptions. And while I am not completely familiar with the
sand table experience, I think that is what they are talking
about in sort of saying, okay, what is our goal and then what
do we need to get to our goal. And so far those two things
haven't happened and that is why they don't have total
resources yet.
And so, going forward, they are going to have to make some
assumptions. At some point we are going to reduce all the
legacy appeals, we are going to have these timeliness goals,
these measures, and only then and only then can you figure out
how many resources you are going to need in order to accomplish
those goals. And so there is an interrelationship between all
of the findings that we have had in that report.
Mr. Takano. I believe you somewhat already answered my
followup, which is what are the risks for the program if the VA
fails to meet this requirement. Well, obviously, we are not
going to be able to solve this backlog.
Mr. Dodaro. Yeah, there is great risk that they won't
accomplish the goals of their plan or the legislation without
this type of planning activity.
Mr. Takano. Thank you.
In my remaining time, Mr. Chairman, I just want to also
heap praise on our colleague Dina Titus. We know how hard she
worked in getting this together and it is just a testament to
what can happen when Members work in a bipartisan way and to
try to tackle a big problem. So, my congratulations to her, and
I am glad to see her today.
Thank you.
The Chairman. I thank the gentleman for yielding. I second
your--associate myself with your comments.
I now yield to Dr. Wenstrup.
Mr. Wenstrup. Thank you, Mr. Chairman, and thank you all
for being here.
I want to kind of build upon something the General talked
about and maybe we can call it sort of an appeals triage. Is
there a process in place, besides just timeline, like how long
the appeal has been out there, but maybe the health of the
person that is involved, do you have a process of maybe moving
people along because they are in more dire need?
Ms. Mason. Yes, sir, we do. Again, that falls under the
advanced-on-docket specific situation where a veteran is in
frail or terminal health issues. And we actually had two of
those cases this week where the board staff--and we had a lot
of these this week, but we had two cases in particular where
board staff teamed together to get a decision out the door
within a day for a veteran who was in dire need.
Mr. Wenstrup. How do they get flagged? Do they get flagged
immediately when they come or----
Ms. Mason. The age cases are automatically flagged by our
current they-call system. The health situation and the
financial situation are situations where we work with our VSO
and our field people in VBA to let us know what the situation
is with the veteran and we communicate in that way, so they
have to let us know.
Mr. Wenstrup. Okay. Another quick question is, you know, as
we sit in our offices, we get a lot of our constituents that
come forward to us and seek our assistance in the process,
where are we in the process, what is going on, or why was I
denied, et cetera. How comfortable are you with the ability to
communicate back with us accurately as far as where someone
might be in the process?
Ms. Mason. We can communicate with you accurately where
that person is if you give us a name or, you know, we can get
that to you. We also have been working closely with digital
service and do have something rolling out later this month
where the veterans will be able to find that out
electronically.
Mr. Wenstrup. Excellent. Thank you.
I would like to yield the balance of my time to Mr. Bost.
Mr. Bost. Thank you. I thank the gentleman for yielding.
I want to add to, Ms. Titus, thank you for what you did
before, because it did allow our Committee to be in a position
where we were advancing forward.
The only thing that I do want to add and the concerns I
have, this goal of the sand table and 60 days, the concern is,
many of us feel like that is where we should be right now.
Okay? And I don't make that criticism, I just want you to know
how vitally important it is that we move forward.
Of course, remember, this old jarhead was a Corporal, not
an officer, so I was the guy standing behind the people who
were standing at the sand table, which then trying to get the
information.
My question is, what are you doing to make sure that the
people behind you are getting the information to you, so that
we can continue to move forward and do these goals and meet
them on time?
Ms. Mason. Sir, we are working very closely with all of our
staff, I can tell you, at the board, and working with VBA, I
see his staff working very closely, and with our IT component.
We are in constant communication. We have several things in
work process right now that will be coming out to address some
of the concerns GAO has in the next implementation plan.
So the staff is fully engaged and they are not standing
behind us, they are at the table.
Mr. Bost. And let me tell you this, because the Chairman
and the Ranking Member and others have made this as a
commitment that this will be a focus to make sure we keep you
on a timeline, we have got to.
So, with that, I yield back.
The Chairman. I thank the gentleman for yielding.
Ms. Brownley, you are recognized for five minutes.
Ms. Brownley. Thank you, Mr. Chairman.
I wanted to ask, in terms--timeliness, for me, is obviously
a very important metric, but based on the claims you have
received so far or the appeals that you have received so far, I
am also interested in the success rate. So we now know you are
showing that the turnaround time so far is 27 or 28 days, I
have no sense of what the outcomes are. Are they positive for
the veteran, stayed in terms of the previous decision?
Chairwoman Mason, maybe you might be the appropriate
person--oh, no. Okay.
Mr. McLenachen. Actually, I would like to take a shot at
answering your question. In the current appeal process, the
grant rate usually hovers around 25 percent overall for all
appeals. What we are seeing--and, again, we all have to keep in
mind, this is a very small sample, but what we are seeing right
now is a grant rate that is 61 percent compared to that 25
percent. Now, again, a very small sample.
And I think the one piece of the question that was asked of
me before is, as far as the choices that our veterans are
making, we are seeing that about two thirds of these veterans
are asking for a Higher-Level Review as their first shot as
they are coming into the RAMP program. So about two thirds
Higher-Level Review, about a third Supplemental Claims, grant
rate of 61 percent, and a decision in about 30 to 40 days.
And I might point out that some of our partners in the VSOs
and other stakeholders have seen some results as they are
representing these people, and I think you will see in some of
their testimony and their statements that they also have some
very positive outcomes to talk about.
Ms. Brownley. Thank you. For me, as we proceed in this
process, I certainly would like to hold onto that metric as
well, just to know, particularly when we look at these legacy
issues that have been out there outstanding for so long and to
hear that 62 percent have been granted, you know, that is a
concern for me that they have been waiting for a very long time
and finally get a judgment on it. But that is an important
piece and I think is an important element to judging veteran
satisfaction at the end of the day as well.
I wanted to also ask again as we proceed, why were the
Phoenix and Denver regional offices selected as part of the
expansion?
Mr. McLenachen. So what we did is we tried to come up with
a plan to figure out how much capacity we need as we are
sending out these invitations. And so we staged it on a monthly
basis, and we built up slowly to where we get to the point we
are sending out a certain number every month, because really
the issue is here we want to process them as they are coming
in. We are not waiting until the end and creating create a
backlog----
Ms. Brownley. I just want to know Phoenix and Denver
specifically were selected.
Mr. McLenachen. Yes. So, specifically, they had the
capacity there in those two stations that we thought at the
time when we were first rolling out to the regional offices, it
was about the size of appeals team and employees at those
stations that would be appropriate for that initial rollout.
Ms. Brownley. So other cities--I am from California, I
always think that California probably has a great deal of these
appeals, because we are a large state, but by that statement,
does that mean that there are other regional offices----
Mr. McLenachen. Yes.
Ms. Brownley. --that you didn't believe had the capacity?
Mr. McLenachen. So keep in mind that each of these regional
offices, including our Appeals Resource Center now, is working
these nationally. So it is not when we roll out to a regional
office, they are not just going to be working the appeals that
are from that jurisdiction. It is anybody who opts in to RAMP
and that workload is available, they will be doing it at that
station. When the workload fills to more than what they can
handle, we will roll to another station. But it is a national
workload, it is just not from that jurisdiction.
As far as your question about other ROs, yes, we are
looking at about 10 to 15 that we would roll out to in this
process.
Ms. Brownley. And when would that happen?
Mr. McLenachen. It depends on the workload. If we get a
high number of opt-ins, which is our sincere hope, then it will
be more rapid; if it is slower, then not as fast.
Ms. Brownley. And what exactly are we doing to persuade
veterans and the VSOs, who some are recommending that their
veterans not opt in to this program, what are we doing to--and
I have also heard, based on the testimony, that veterans are
feeling like it is just a check-off list and maybe not really
listening and taking seriously some of their recommendations.
So what are we doing to overcome that objection?
And I have zero time left, but maybe I could follow up with
you later.
Mr. McLenachen. Yes, I can provide you a detailed answer to
that.
Ms. Brownley. I yield back.
The Chairman. I thank the gentlelady for yielding.
Mr. Banks, you are recognized for 5 minutes.
Mr. Banks. Thank you, Mr. Chairman.
Mr. Dodaro, I know you have touched upon this already, but
do you believe that the VA really has a robust IT plan for
implementing the appeals reforms?
Mr. Dodaro. No, no, I think they need a much more robust
plan. The plan they have goes out about 6 months, it doesn't go
out any further than that, and it is not clear when they are
going to have the deliverables necessary to improve their IT
capacity to accommodate the appeals process. And so I think
they need a much more robust plan and that is what we
recommended; we recommended it back in March when we did our
report and we are recommending it again. They have made some
headway, but not as much as needs to be made.
Mr. Banks. Between you or Deputy Secretary Bowman, how long
will that take? How fast can we develop that robust IT plan?
Mr. Bowman. I think the approach that we are going to take
is based upon how we have looked at our approach over this next
year. We are going to probably have to expedite our approach in
response to what the [Comptroller] General has indicated, but
also as it relates to the plans that both VBA, as well as the
Board, have developed. It is not as robust as it needs to be;
it is going to become more robust.
We do believe that we have brought people aboard between
our IT capability and the resources that we believe we have
available to help address that. But it is not where it needs to
be, I am not going to tell you any differently, but we believe
that we are going to aggressively try to put it there.
One of the things that I have assured the Chairman and
Ranking Member Walz is that we will provide a separate briefing
as it relates to where we are specifically on our IT capability
as we look at it today and then as we want to move forward,
based upon an earlier discussion last evening.
Mr. Banks. Okay. General Dodaro, can you elaborate on the
importance of a balanced set of goals and measurements to put
in place before testing and implementing the new appeals
process?
Mr. Dodaro. Yes. And it is very important, because there
are obviously resource tradeoffs between timeliness and
accuracy, there are tradeoffs between having a good IT system
and not having an IT system, but you have to be clear on what
your goals are going to be. There has to be a balance between
making sure there are enough resources to VBA versus the board.
And so you have to have measures in terms of how the board is
going to handle things, as well as VBA. So, it is critical. And
veteran satisfaction with the process, the communication
approach.
So you need all these things in a balanced scorecard to
make sure that you are effectively processing timely, getting
accurate decisions, people are satisfied with the system, but,
importantly, you have the resources allocated properly to
achieve those goals. And so, unless you have a balanced
scorecard and you have all these goals, you don't really know
how much resources you are going to need in order to achieve
those goals to have reasonable prospects of success.
Mr. Banks. So we agree about that. And based upon your
testimony throughout the morning, though, can you elaborate on
why the VA is failing to do exactly what you just described?
Mr. Dodaro. Well, I would defer to them to explain why not
but, you know, we are trying to encourage them, strongly
encourage them to implement these sound planning practices
going forward and to do some scenario planning. You really have
to make some assumptions and do scenario planning at this point
in order to do it. They have been a little reluctant to do
that. They are also reluctant to go out further in their IT
plans beyond this six-month kind of rolling plan, they have to.
I mean, there are no dates in the plan beyond February 2019
when they anticipate full implementation.
So at this point you have to make some assumptions, you
have to set what your end state is, where you would like to be
with your balanced scorecard, and then you figure out what kind
of resources you need and have detailed metrics that you can
check along the way and make progress.
And so these things are all very important. I mean, the
approach so far has been, we are going to learn from RAMP and
then we are going to make adjustments.
Mr. Banks. With the 30 seconds I have left, Secretary
Bowman, what is it going to take to get there, what the
Comptroller just described?
Mr. Bowman. I believe we are going to have to adjust the
approach that we took to get to where we have presented under
the plan and to adjust to what has been identified as the
deficiencies in how we have approached things today.
Mr. Banks. Okay, thank you.
I yield back.
The Chairman. I thank the gentleman for yielding.
Ms. Kuster, you are recognized for 5 minutes.
Ms. Kuster. Thank you, Mr. Chairman. And I too want to
thank Representative Dina Titus for her great work on this
issue. Thank you for your leadership.
I want to follow up on my colleague Mr. Banks' questions
and dig into the training and the IT. So this is to the VA
witnesses. Regarding the new case flow program, is training for
this program a priority, and are your IT systems able to handle
the workload during the RAMP pilot program and the full
implementation of the appeals modernization? Where are you at
with training?
I understand from the Comptroller General that we don't
have the timeline that we need and, I agree with you, we need
more specificity so that we can keep track. But where are we
with training in terms of this new IT program?
Ms. Mason. I can start to the training issue specifically.
We are currently working at the board with building training
modules for the new implementation of the appeals modernization
program, and we expect to roll out a training timeline of
within the next month.
Ms. Kuster. Could you get back to us and keep our----
Ms. Mason. Sure.
Ms. Kuster. --committee informed? Because I think, to
follow up on Mr. O'Rourke, we need to know where we are going
so that we can keep track of whether we are getting there.
Ms. Mason. I can follow up on that and Mr. McLenachen can
answer the second part of your question, I believe.
Ms. Kuster. Thank you.
Mr. McLenachen. Specifically, you asked about RAMP and
training and related issues. As I mentioned previously----
Ms. Kuster. Primarily focus on the IT. It is a whole new
program, and I want to know how people are going to learn it
and implement it.
Mr. McLenachen. So, we have already developed and
implemented VBMS, which is our program for VBA for processing
claims. It doesn't require, the law does not require a new
program, it requires some minor tweaks. We actually do have a
more refined schedule than was discussed in the implementation
plan. In August of 2018, about 75 percent of that functionality
will be delivered, with the remainder delivered in December of
2018.
Ms. Kuster. But aren't you trying to reach your goal
January 2019? This seems a little slow. How are you going to
reach your goal if you are not even delivering the product, the
processes?
Mr. McLenachen. August 2018, 75 percent of the
functionality that we need for February 2019 will be delivered.
So that is far in advance.
Ms. Kuster. But you just said December 2018----
Mr. McLenachen. Yes.
Ms. Kuster. --what is that date?
Mr. McLenachen. That is when the 25 remaining percent is
scheduled to be delivered.
Ms. Kuster. 30 days before the final completion?
Mr. McLenachen. Yes.
Ms. Kuster. Okay. And I have a different question. I want
to move on to the VA Central Office, I am concerned about their
ability to retain accountability and oversight over regional
offices. We have this in the VISNs, we have this in a number of
areas that our Committee covers. And we understand, the staff
has heard through the old system the likelihood of successfully
receiving your disability benefit varied greatly by geography,
and I am wondering is there an explanation for that variance
and how are you going to overcome that going forward? Is there
any standardization, so that we don't have to be concerned as
Members of Congress that when we get the calls it is going to
be based upon our geography as to whether or not our veterans
are going to have timely appeals?
Mr. McLenachen. And I believe you are asking about claims
processing in general, correct?
Ms. Kuster. Both claims processing and the timeliness and
the effectiveness of the appeals.
Mr. McLenachen. So, a few years ago VBA implemented, kind
of around the time with VBMS the program was developed, some
functionality was added to that to develop our National Work
Queue. The National Work Queue assures that there is that
consistency nationally rather than geographically. And although
I am not the expert to talk to you about that, I am sure that
we could arrange for the individuals that run that to come by--
--
Ms. Kuster. And is there standardization among the regional
offices for how the claims are handled?
Mr. McLenachen. Yes. Every regional office is required to
follow the adjudication procedures manual that prescribes
specifically how to process a claim in VBA.
Ms. Kuster. And do you have some kind of internal mechanism
for ensuring that consistency?
Mr. McLenachen. Yes. There are internal reviews and quality
reviews that are done on a local basis at the regional offices,
as well as a national quality review program that is run by our
compensation service.
Ms. Kuster. Okay, thank you.
I yield back just as my time is up.
The Chairman. I thank the gentlelady for yielding back.
And I just pose this: if there is that standardization that
is available, then why are 60 percent of them getting approved
now?
I now yield--with great pleasure, I yield 5 minutes to Ms.
Titus. Thank you for patiently waiting and thank you for the
work you have done on this bill on this Committee previously.
Welcome back.
Ms. Titus. Well, thank you very much, Chairman Roe and
Ranking Member Walz, for letting me sit in with you. I miss
being on this Committee. It truly was a collaborative effort.
And I thank you for the kind words, but we all worked together
on that: the VSOs, the VA, this Committee. And I appreciate you
all taking this, especially Mr. Bost and Ms. Esty, you improved
on our initial work and you followed it through, and now the
implementation is so important.
I just had a couple of questions. Now, my concern was
always the backlog, the backlog with the initial claims and
then the backlog with the appeals. I worry that you have now
set up a system where veterans who have chosen this new route
can't appeal until it is all put in place in February of next
year, aren't we building in a mechanism that is going to create
a backlog before we even get started? I think Mr. Dodaro
mentioned that possibility.
Have you thought about that or figured out a way to not let
that happen?
Ms. Mason. Ma'am, it is a pleasure to have you here today.
We are looking very closely at that. The board is currently
working very strongly and physically working down the backlog
for our current appeals that we have. We do have a goal set
this year of 81,000 decisions, which is 28,000 more than we did
last year. And with the additional staff, we are showing
results; we have already done over 24,000 decisions to date in
fiscal year 2018.
But you are correct. I am hearing the GAO's concern and, as
the new Chairman, that is something that I do have to take
consideration of. I don't want to put us in a situation where
we are creating a backlog from the very beginning; however, I
do feel that I owe it to those veterans who are waiting
currently to ensure that I am working those legacies.
And so we are very much supporting the RAMP program and
very much hoping that those veterans--and working together with
our VSO partners and our private bar partners to encourage
veterans to opt in to get those early resolutions at faster
rates before they come to the board. But you are correct, I am
looking at that and that is something we will continue to
study. And as I get more information around it, you know, it is
something that I definitely am going to take under
consideration.
Ms. Titus. Thank you. I think you mentioned that two thirds
of those who are in the early program are looking for some kind
of review, would those be the ones who have to wait until next
February?
Mr. McLenachen. No, ma'am. What I was referring to was the
Higher-Level Review at the lower level. So that is where we are
getting those.
Ms. Titus. The higher level at the lower level?
Mr. McLenachen. Yes, exactly. So the Higher-Level Review
and the Supplemental Claim lanes are done in the VBA, the third
line is the appeal to the Board.
The way we set up this program, we designed it to get as
many early resolutions as possible, actually to prevent that
backlog that you are concerned about. Where that backlog might
develop is at the Board. If we simply let everybody opt in to
the Board, then, yes, you will have a huge backlog at the
Board. The Board takes, rightfully so, more time to process an
appeal than in VBA.
So the intentional design was to get as many resolutions at
the lowest level, again, in an average of 125 days, as
possible. And that is why you are seeing this rate of about 61
percent--which, Mr. Chairman, by the way, does not relate to
quality, but rather the time the veteran has been waiting,
because more evidence has been added to the appeal.
So that as the intentional design of the program was----
Ms. Titus. I recall that----
Mr. McLenachen. --to prevent----
Ms. Titus. --I was there.
Mr. McLenachen. --to prevent the Board from having that
backlog when we start in February 2019.
Ms. Titus. I just don't want us to create a backlog before
we even really get started, because you never catch up, it just
continues to build, and it seems to me that that is a problem
and the Comptroller recognized that too.
My other question is, because the RAMP is a pilot program
and you are only looking at a couple of the lanes and you are
not going to open up the full program until the next year, all
this data and all this planning and all these metrics are
related to what is happening on those lanes, when the whole
program opens up, do we start all over from scratch looking at
what happens in the new additional lanes, or are we prepared to
just move forward?
Mr. McLenachen. Actually, it is true that, veterans cannot
opt-in directly to the Board lane, which is the third lane,and
as you said, it is not being piloted. But it is not exactly
true that we are not getting any information from that.
When a veteran gets a decision in the RAMP Program, they
can appeal to the Board. So, the Board will have that
information about veterans who are interested in appealing
after getting a Higher-Level Review or Supplemental-Claim lane
decision.
In addition to that, we are collecting data on which lane
at the Board they want to go to. So, we are collecting
information that is relevant to the Board lane; it is not an
absence of information. The only thing we are not testing is
veterans that might want to go directly from an initial VBA
decision directly to the Board. That is correct, we are not
testing that, but there is a reason.
The Board process, as we said, we are looking at an average
of one year in that fastest lane at the Board. We don't have
time to pilot the full extent of what the law allows in
February of 2019, because it does take time to get through our
lanes and then to get to the Board and get through the Board
lanes, which will run slower, naturally.
Ms. Titus. Do you have any concerns about that?
Mr. Dodaro. Yes. I think that there is, number one,
once the realistic expectation for bringing--resolving all
the legacy appeals, you know, there is no timeline for that,
how many resources would be required. So I think they need to
establish some goals for that kind of process, you know, that
kind of outcome, so that they can take the new RAMP process.
The other thing is they could potentially survey some
veterans to see if you had the ability to go to VBA or the
Board, which way would you go to get some additional
information available on that side, because I am concerned that
once they open up all the lanes and have--you know, they will
have some information, but it is going to be limited--that they
are not going to be able to be in a position to create, meet
all the expectations that people have for the new process and
they will not, from my understanding is they are not going to
have all the legacy appeals resolved before they start the
new--full implementation and new process, potentially.
And what does that mean for the process? Because veterans
can still, you know, appeal, so it is going to keep going. It
has the potential for creating additional backlogs.
Ms. Titus. That is my concern, too.
Thank you very much, Mr. Chairman.
The Chairman. Thank you. Mr. Arrington, you are recognized.
Mr. Arrington. Thank you, Mr. Chairman. I had a budget
hearing and it is the most frustrating thing as a new Member,
you want to be available and engaged, and so my apologies. This
is incredibly important and I regret not hearing your
conversation and with my colleagues, and so forgive me if I
repeat some of the questions or make some comments that have
already been made.
The thing that stands out to me is this, is just looking at
the numbers. With the overall number of 471,000 pending
appeals, but when I look--and Ms. Mason, I am going to direct
my question to you--the goal at the Board level is to resolve
81,000--rather--yeah, 81,000, I think, was the stated goal
annually.
But when you look at 2017, 90,000 appeals came through the
system and 2018, the projection is 93,000. It reminds me of our
deficit spending and our national debt, like, I don't know when
we will ever get to the $20 trillion national debt, because we
can't even get out of deficit-spending mode.
How are you going to get out of deficit-appeal resolution
mode at that rate?
Ms. Mason. Thank you. You are correct, the board's goal
this year is 81,000 and we do project approximately 93,000
coming in and that is not an equivalent.
What--the areas that we are looking on--looking at as our
efficiencies, the new decisions that we are rolling out today,
piloting, we hope will assist the attorneys and the judges in
their case review and decision pace, but we are going to look
at that very closely to see what that does.
We are also working with our Digital Service team. They
have rolled out quite a bit of technology already to date
including Reader, the intake piece, Caseflow, and they are
getting ready to roll out the queue program and test that,
which will be able to handle work on our workload, how we are
going to manage our workload across the appeals and the
framework.
So, you are right. We are not there yet, but the other part
of that is RAMP. If there--if we do have some veterans opting
into RAMP, that will take down the number of cases that are
coming into the board, at the board, especially with the
current 60 percent grant rate.
Mr. Arrington. So, with all the things you mentioned in
play, you think you can catch up to that number of incoming and
start working down that 471,000 in backlog? So, with all that
in play, do you think you can do that or do you need more
authority, more resources, more training, more assistance,
more----
Ms. Mason. The 470,000 appeals are across the organization,
so approximately 200,000 of those are currently at the VBA
notice of disagreement level, so if those get resolved in VBA,
they don't come to the board. My goal, and my hope for
veterans, is that we stop that flow at VBA. So, that is the
first piece of that.
As far as needing additional assistance at this time, my
team has been working very hard this year and we are seeing
amazing results and that as a result of the money that Congress
gave us in fiscal year 2017. I really need to see what my team
can do as we move into that, into the new system, but, you
know, the legacy piece, we are going to be watching that very
closely and trying to draw those down as quickly as possible,
as well as get ready for the new appeals process.
Mr. Arrington. So, when will we start seeing the amazing
results, because I am not sure I am seeing what you are seeing
or maybe I am seeing a different scorecard.
Ms. Mason. The board, to date, has done 24,800 decisions,
which is a record number for us to date in fiscal year 2017.
Mr. Arrington. Congratulations.
Ms. Mason. Thirteen thousand more than the same period last
year.
Mr. Arrington. Okay. What is the biggest factor in your
success in solvency this problem?
Ms. Mason. The biggest factor for the--currently to that
success is the fact that we added additional people and we are
working with our staff very closely to streamline the process.
Mr. Arrington. Do you need anything else from us so that in
a year from now, you can show us even more amazing results?
Ms. Mason. I really need your help getting the word out on
RAMP and selling that out to our--to your constituents and at
the local level to opt-in, because it is a program worth opting
in.
Mr. Arrington. Thank you for your remarks.
Mr. Chairman, I yield back.
The Chairman. I thank the gentleman for yielding.
And Mr. Bowman, Mr. Dodaro, thank you very much. I know you
have got to leave. I would like to ask Mr. Bowman to stay
around. And just before we introduce our second panel, you
know, this issue is not tax reform and funding the military and
health care reform and all those glitzy things you go out and
stand out in front of a TV camera and explain. But to people in
our district, it's incredibly important and to a 90-year-old
veteran waiting three or four or five years or a Vietnam
veteran who has been exposed and is waiting on a resolution and
financial circumstances come into play, it is a huge issue for
them.
So, thank you for the work that you are doing to speed up
this process. I applaud you for that. Probably of anything that
any of us on this dais do that both is rewarding and
frustrating is appeals process the VA has. So, anything we can
do, and hopefully this legislation that Ms. Titus first started
and now Mr. Bost and Ms. Esty have carried through into law,
will help this process and speed this process up.
And I hope a year from now when we are having this
conversation, that we have even better news. So, thank you, and
this panel is dismissed.
Now, I want to welcome our second panel, Jim Marszalek, the
national service director for the Disabled American Veterans,
welcome; Diane Boyd Rauber, the executive director of the
National Organization of Veterans' Advocates; and Steven Henry,
the associate legislative director of Paralyzed Veterans of
America.
Mr. Marszalek, we will begin with you; you are recognized
for 5 minutes.
STATEMENT OF JIM MARSZALEK
Mr. Marszalek. Thank you. Chairman Roe, Ranking Member
Walz, and Members of the Committee, thank you for inviting DAV
to testify on implementation of the Appeals Improvement and
Modernization Act. As national service director for DAV, I was
pleased to work with VA, the board, and other stakeholders to
develop the new framework that led to this legislation. I want
to thank this Committee for making comprehensive appeals reform
a reality.
Currently, DAV represents over one million veterans or
survivors seeking earned benefits, making us the largest
veterans' service organization providing claims assistance. In
addition, DAV provided representation for 31 percent of all
appeals decided by the board in fiscal year 2017.
Mr. Chairman, although the law is not scheduled to become
fully effective until February 2019, VA has already initiated a
Rapid Appeals Modernization Program, commonly referred to as
``RAMP,'' to begin reducing the backlog of legacy appeals and
to test elements of the new system. RAMP allows veterans with
pending appeals to choose two new options; higher-level review
or a supplemental claim. They cannot elect the board option
because the board will not begin processing appeals under the
new system until February 2019.
We worked closely with VBA to fine-tune RAMP, which began
rolling out last November. Since the program was only offered
to a small number of veterans closest to getting a decision
from the board, we aren't surprised that most choose to remain
in the legacy process; however, based on preliminary data, RAMP
is already showing great promise. The average time to complete
a RAMP decision is 37 days.
But more importantly, consider how all these decisions are
affecting the lives of veterans. One of the first RAMP
decisions involved a Gulf War era veteran, represented by DAV,
who filed his claim more than a decade ago. After years of
appeals and remands from the board, this veteran opted into
RAMP on November 16th and just 48 days later, a grant to
service-connection with 100 percent evaluation was awarded,
which resulted in over $275,000 in retroactive benefits. RAMP
provided a life-changing benefits to this veteran and his
family.
Moving forward, as word of RAMP successes begin to spread
and as VA and VSOs begin educating veterans, we expect to see
participation grow. In addition, we recommend that the program
be modified so that any claimant with a pending appeal could
opt into RAMP, not just those receiving a formal invitation
from VA.
Mr. Chairman, the law requires VA to use a new decision-
notification letter starting in February of 2019 to help
veterans better understand their decisions as they consider
appeal options. We are pleased that VA agreed to use a new
letter for all RAMP decisions; however, they currently have to
use a manual workaround because their IT system has not been
updated to reflect the new letter format. VA was fix this IT
issue immediately. In addition, outside of RAMP, we recommend
that VA begin using a new notification letter for all claims
decisions as soon as the IT system has been updated.
While VBA is mostly on track with its implementation plans,
the board has a number of preparations still to be completed
before it can begin processing appeals under the new system,
including new regulations that must be promulgated. It is
critical that they are published in the Federal Register as
soon as possible to avoid any delays.
The board must also resolve some open questions about how
appeals will be processed on the five new dockets the board
will operate in the new system. For example, how will be the
board allocate resources among the various new dockets to
ensure both, efficiency, as well as fairness for veterans who
choose among their hearing and evidence options, including
those legacy appeals who have been waiting for years.
While the board has set a one-year-average goal for
processing appeals on the no-hearing, no-evidence docket, no
similar targets have been established for the remaining
dockets; something the board should consider.
Another issue that is not been adequately addressed is how
the board will treat evidence submitted prior to a requested
hearing. The law only references evidence submitted at and 90
days following a hearing, however, we contend that any evidence
received after the NOD, but prior to a board hearing, should be
accepted and made part of the appeal record.
Mr. Chairman, in closing, we believe that the VBA and the
board are off to a good start implementing the new appeals
system. DAV remains committed to working with this Committee,
VA, the board, and all stakeholders to ensure veterans get more
timely, accurate and fair decisions on their claims and
appeals.
That concludes my testimony. I would be happy to answer any
questions you may have. Thank you.
[The prepared statement of Jim Marszalek appears in the
Appendix]
The Chairman. Thank you.
Ms. Rauber, you are recognized for 5 minutes.
STATEMENT OF DIANE BOYD RAUBER, ESQ.
Ms. Rauber. Chairman Roe, Ranking Member Walz, and Members
of the Committee. NOVA thanks you for the opportunity to
testify on whether VA's implementation of appeals reform will
effectively serve veterans.
Our Members, a number of whom are veterans themselves,
advocate before VA, the Board of Veterans' Appeals, the Court
of Appeals for Veterans Claims, and the Court of Appeals for
the Federal Circuit.
As an initial matter, NOVA appreciates VA's ongoing
engagement of stakeholders in implementation planning. We hope
this engagement continues and VA fully considers and deploys
stakeholder feedback on proposed regulations, procedures, and
forms.
Today, we will address four primary issues: VA's
comprehensive plan, concerns regarding RAMP, VA's flawed
process for mailing notice, and technology. Like GAO, NOVA is
concerned that VA's comprehensive plan does not yet contain
sufficient detail. Throughout the plan submitted in November,
VA stated it will focus resources first on the implementation
of the new system. VA will then allocate ``remaining
resources'' to appeals in the legacy system.
Veterans with legacy appeals cannot become an afterthought.
Much more detail is needed to ensure VA processes legacy
appeals to their conclusion in a fair and efficient manner
while fulfilling its obligations under the new program. For
example, how will BVA address the backlog of pending hearing
requests, currently nearly 85,000, and provide timely hearings
to those in the new system who wish to be heard? Veterans need
more specific answers to questions like these.
VA's primary vehicle for handling legacy appeals is RAMP, a
chance for early voluntary opt-in to the new system. We believe
this is less a pilot, but rather, a full program for moving
veterans into the new system and as noted, there is a gap
because there are no lanes to go to the board.
It is critically important that VA continue to provide
advocates with data on RAMP so they can evaluate the program
and provide the best advice to veterans and their families. At
last week's stakeholder meeting, VA stated it planned to set up
outbound call centers to contact veterans about RAMP. NOVA
opposes such action.
VA is providing veterans with letters, follow-up letters,
and emails about RAMP. It is one thing for VA to call a veteran
to verify an address or schedule a medical examination; it is
another to call to try to explain a new program that could
result in a veteran giving up certain rights. However well
intended, such calls are bound to lead to confusion and
potentially contradict the advice a veteran's representative
has already provided. We view this idea as counterproductive,
as well as a waste of resources that can be better applied to
other aspects of implementation.
Next, we appreciate the RAMP team's work with NOVA to
ensure attorneys and agents receive the required mailed notice
of VA's actions; however, VA's overall efforts in this regard
remain woefully inadequate. As GAO reported several months ago,
VA's outgoing mailing systems are seriously flawed. NOVA
receives nearly daily complaints that important correspondence
and decisions are going unmailed and unreceived.
In spite of the recognized flaws, VA relies on the
presumption of administrative regularity when a veteran misses
a deadline due to its failure to notify. VA's processes are
irregular and it further prolongs the adjudication process due
to the need for more appeals.
VA states it is preparing to deploy a centralized outgoing
mail system, but too many veterans have been harmed. VA must do
better and provide relief for these veterans and we urge the
Subcommittee on Oversight and Investigation to continue its
leadership in this regard.
Finally, a critical step to full implementation of the new
system is updated technology. Congress should continue to
ensure that VA receives the resources it needs; in turn, VA
must use those resources to design systems that work
efficiently. At last week's stakeholder meeting, the U.S.
Digital Services team demonstrated some of the work it is doing
on Caseflow, which is the replacement for BVA's outdated VACOLS
program, as well as other new applications designed to help
veterans track their appeals.
These systems must also be made available to all advocates
representing our Nation's veterans, so they can provide them
with the help they deserve.
Again, we appreciate the opportunity to testify today and I
would be happy to answer any questions the Committee might
have.
[The prepared statement of Diane Boyd Rauber appears in the
Appendix]
The Chairman. Thank you, Ms. Rauber.
Mr. Henry, you are recognized for 5 minutes.
STATEMENT OF STEVEN HENRY
Mr. Henry. Chairman Roe, Ranking Member Walz, and Members
of the Committee, Paralyzed Veterans of America would like to
thank you for the opportunity to offer our views on the
implementation of VA's appeal reform and if, in fact, it will
effectively serve veterans.
PVA employs a highly trained force of over 70 service
officers who developed veterans' claims for both, member and
non-member clients. These frontline flows spend a minimum of
two years in specialized training. We maintain a national
appeals office staffed by attorneys and legal interns who
represent clients at the Board of Veterans' Appeals, otherwise
known as ``the Board.''
We also have attorney who practice before the board, the
Court of Appeals for Veterans Claims and the United States
Court of Appeals for the Federal Circuit.
While we are open to reform of the appeals process, we
cannot support programs, initiatives, or pilot programs that
are less advantageous for our members. We believe RAMP is good
for VA and the backlog of appeals, but it is not good for our
members.
VA will tout their 61 percent grant rate of the first
claims that were adjudicated; however, these claims were
completed at the appeals management office, not in the field.
PVA contacted many of its field offices and found that in many
of VA's regional offices, there is a lack of confidence of the
effectiveness of the RAMP program by VA employees.
Furthermore, it is a common perception of decision- review
officers that the board has more authority on the
interpretation of regulations while adjudicating certain
claims. Claims such as these are always forwarded to the board.
PVA believes that RAMP is able to be successful, the
culture within the VA must change, otherwise, the RAMP program
is nothing more than another layer adding more denials and
longer wait times for veterans.
We also found after surveying field employees that very few
regional offices have received any training materials or tools
for its employees. To date, PVA has yet to receive any training
materials. The nature of RAMP places a considerable amount of
responsibility on service organizations to provide the absolute
best advice possible when choosing the proper lanes or to not
opt-in.
PVA members are the most catastrophically disabled veterans
and their claims are nothing short of complex. How can we
confidently communicate to our members, the benefits of RAMP
when the regional office staff is yet to be trained on the
program?
When a veteran receives a notice advising them of the RAMP
program, they will receive a document many pages long
containing legal jargon with the intent of explaining the pros
and cons of the program. Buried deep on Page 4 is a statement
that notifies the veteran that by opting into the RAMP program,
they must withdraw their appeals from the board which will
result in the loss of their docket date.
Consequently, if the veteran chooses to return back to the
board after RAMP, they will lose their place in line.
Furthermore, veterans will not have the option to return to the
board until February of 2019.
If a veteran has opted into RAMP and during the
adjudication period, the claim is remanded for a new exam or
for the development, the veteran is no longer covered by
Stegall. There is no longer protection over the remand to
ensure the regional office complied with the remand order.
Consequently, the claim could be denied, resulting in more
waiting for the veteran.
We believe VA is not implementing a pilot program. Pilot
programs are small in size; however, to date, VA has contacted
15,000 veterans. On February 1, another 25,000 will be acted
and 30,000 in March. This is not a sample size; this is an
incredible amount of claims being forwarded to regional offices
to limited staffs that have received little to no training on
the program. The speed at which RAMP is being implemented is
troubling.
PVA appreciates VA's need to reform. PVA, along with other
major VSOs help push for appeals reform. Our greatest concern
is that VA may be rushing its implementation, as seen by the
rapidly increasing number of veterans contacted for the pilot,
without time for VA to consider the metrics of the pilot.
PVA stands ready to continue to assist with reforming the
appeals process to ensure that our veterans receive the
benefits they, too, rightly deserve.
Thank you, and I am happy to answer any questions.
[The prepared statement of Steven Henry appears in the
Appendix]
The Chairman. Thank you for your testimony.
And I will start out with just a couple of quick questions
and it sort of goes to both ends here. We have two, obviously,
two differences of opinion. One believes that it is working
pretty well and the other brings up some very good questions.
The question for everybody on the panel is, why do you
think the VA has got only a 3 percent intake? I have my own
thoughts about that for RAMP, and are your organizations
encouraging people to get into it or discouraging people to use
it? And I will just start from my left and go to the right.
Mr. Marszalek. Yes, thank you. Great question. We are
encouraging our service officers. You know, we put our
information about RAMP, Hey, this is what the program is all
about, here are the advantages of it. And, frankly, I don't see
there is a huge downside to participating either, right? I mean
you are protected. Once you opt-in to the program, you are
effect date is protected.
Why is there such a slow uptake? One is they reached out to
the oldest appeals that are pending and, you know, some of our
service officers gave us feedback, Well, this veteran has a
hearing next week, you know, they have already had their
hearing, whatever it may be, so they don't want to get out of
line and they don't know much about it either. There hasn't
been much advertising by VA about RAMP and what it is all
about.
At the last meeting we were at, I did encourage VA, Listen,
let's do some, you know, marketing and tell people about this
program. We want to do it. We want to help VA. We want to
encourage people to participate if it is right for them.
And we have told our service officers, you have to look at
the case. Is this the case--the right case to go forward and
pick higher-level review or supplemental claim. But the cases
that we have opted in, we have gotten some good feedback from
the veterans, as well, and there is three in my written
testimony alone that received a significant amount of benefits
based upon their participation. They have waited almost a
decade for their cases.
So, there is some good, but we really, really have to watch
as it grows. As we are notifying thirty, 35,000 people, you
know, how many people are opting in and can we maintain that
workload? And we have to do it together and I think the
collaboration has been good thus far.
The Chairman. Ms. Rauber?
Ms. Rauber. We have provided training to all of our
members, but we believe that is really an individual decision
that each representative needs to make with the individual
veteran. As we noted in our testimony, there are no lanes at
the board, so an advocate is saying to the veteran, You are
going to jump out here. You are going to lose your place in
line. You are withdrawing your appeals with no opportunity to
come back in. I can get you this far and, yes, you will be
waiting in line when the process opens and VA says it is going
to be ready in February of 2019.
But if they are not ready, you have just instructed a
veteran that he might be getting his appeal looked at, and you
know we heard some testimony earlier today, I know VA is
intending to be on time, but there is a little bit of
suggestion here that it is not entirely clear that it is going
to happen and I think that gives people some pause as to
whether they should recommend this.
The Chairman. Yeah, I agree with you. I think that is
exactly what it is.
Mr. Henry?
Mr. Henry. PVA, we represent a very specific clientele. Our
service officers work with very complex claims involving
paraplegia, tetraplegia, MS, and even ALS. And we just don't
know if the RAMP program is advantageous for our members.
Like Mr. Marszalek said, it may be good for some veterans,
but right now, we don't see it very benefitting our members for
PVA, so we are just going to sit back and see what happens with
everybody else before we jump in.
The Chairman. I appreciate that. And I think all of you, I
think it is probably correct at being new. It is difficult to
jump in something new when you know where you are in line. I
couldn't disagree with that at all.
Mr. Henry, and you have probably already answered this, but
why the PVA is concerned that VA hasn't established benchmarks
during whether RAMP is successful; you mention that in your
testimony.
Mr. Henry. The only benchmarks that we are really made
aware of were how many veterans they were looking to opt-in.
One of our biggest concerns is VA touts this program as being a
pilot program or a test program.
Test programs are used to test. They are used to determine
whether or not the resources are there for the final program to
really be successful. And with VA not providing these
benchmarks, they have absolutely nothing to measure the
effectiveness of the program on. So, we just don't feel that
everything is there for RAMP to be successful.
The Chairman. Okay. Thank you my time is expired.
Mr. Walz?
Mr. Walz. Thank you, Mr. Chairman.
And thank you to all of you for a lot of years of working
these and I do think we take our lead from your service
officers. DAV has 4,000 accredited folks out there that have
worked on this. There is literally so much wealth of knowledge
on how to make this happen, so this feedback today is really
helpful.
And I, too, am--the communication piece is it, and I think
the Chairman is absolutely right. This is--it is, you know,
``the devil I know is better than the devil I don't know'' type
of thing. And I certainly know how I would view it in the line,
but I think there is going to have to be--we are going to have
to get to the point where we are encouraging people to get into
a system that works, restoring that trust.
Because the ultimate goal is to get fairly adjudicated
claims in the most efficient manner possible, to deliver those
benefits that are owed. And all of us have that same goal and
so--trying to get there.
What I am--this communication piece, I would--Ms. Boyd
Rauber, what about all those attorneys and things that are out
there and the folks that are doing this? These--little
different than the VSO side of things but in the same goal. Are
you getting good information? Do they feel well-versed? Do they
feel part of this, this process moving forward to
implementation?
Ms. Rauber. I would say that VA has done a better job of
including us in the planning. And all the information that VA
is giving us, we are disseminating to our members, but, again,
I would say that we really feel that it has to be an individual
decision based on the specifics of an individual case. And
people who are farther along in the process are just much less
likely to move in.
Mr. Walz. Are any of you--anybody have it anecdotally,
where someone came up and said, Hey, I haven't been contacted.
I want--I really want to get in this thing. How do I do it?
Have you heard of that happening?
Mr. Marszalek. Yes, we have had veterans contact us and
want to be--want to participate, but that is not currently
offered at this time. That is why one of our suggestions is for
VA to allow that.
If we come across a veteran who has been waiting years and
we think the program is going to be advantageous to them, we
should be able to opt them in, yeah.
Mr. Walz. And I--well, I think that is the ultimate goal. I
guess maybe in this, there is more of a selective of sending it
out, but when we sent it out, we didn't get as much feedback as
we wanted. You would sure think that the ones who were
voluntarily saying, Put me in this, we would figure out a way
to make that happen.
Mr. Marszalek. Absolutely.
Mr. Walz. So----
Ms. Rauber. I think we would like to hear more information
about how VA sees that working, but we are open to discussions.
Mr. Henry. As far as I know, we have had very few veterans
opt-in. And like Mr. Marszalek said, it is a case- by-case
basis and, honestly, I am not sure if we told that veteran to
opt-in, but I know it is very few at this point.
Mr. Walz. Well, I think you bring up a very good point and
for all of us to understand, there are a multitude of veterans'
service organizations for a reason; for specific conflicts, for
specific issues, for specific advocacy. And that has served us
very well, as long as we have never lost track of we are not
leaving anyone behind; we are not cutting anybody out at the
expense of someone else.
And I think in this process, you are bringing up a very,
very important point about specific claims, specific group of
veterans, and making sure that if it is working for one, that
may not be for the other. And I don't quite have my mind
wrapped around how to make that happen. I don't know exactly
where that is, but it is something for us to focus on.
I think we have heard a lot about it, the not testing with
the board as being a piece of it, so it probably goes--we
probably are there. But, I want to thank you all. I would say
now of all of those years of work, all that expertise that is
out there processing, we need all of that right now, these 12
months.
And I think we all need to say--and it is something to
think about--I am not letting anybody off that date, but we
have to be ready on that date. And if there is any indication
as we get closer and closer there is not a possibility, we need
to be communicating.
So, I thank you all and I yield back.
The Chairman. I thank the gentleman for yielding.
Mr. Bost, Chairman Bost, you are recognized.
Mr. Bost. Thank you, Mr. Chairman.
And I just--I am really concerned as we see the spectrum of
each VSO group that has their different concerns. I--you are
from positive to really not, but that is not where I want to go
with my questions; I have some specifics.
Ms. Rauber, is NOVA concerned that the veterans, that when
they receive the RAMP letters, are not fully understanding them
or what the program involves?
Ms. Rauber. No, I think it is that, you know, our
veterans--our members will be expecting to talk to that
individual client. VA is sending the notice to the veteran and
hopefully, and as I stated, not always consistently sending the
notice to the representative, as intended.
But I think in each specific case, they will have that one-
on-one together to talk about the specifics of the case and the
notice. So, I am not so sure that it is the veteran is not
understanding with the help of his counsel, but I think it is,
is this the right thing for me as an individual to move into
this system or not.
There are concerns that Mr. Henry raised about the remand
issue and some of the--in the legacy system, there is more
control that the board keeps over the remand and I think there
are people who perceive that as maybe being a better route for
them.
Mr. Bost. Just as an individual basis?
Ms. Rauber. Exactly.
Mr. Bost. Okay. Mr. Henry, would you like to expand on
that?
Mr. Henry. From what I heard from field employees, if a
veteran receives a letter without consulting their service
organization first or afterwards, they are going to be
confused. I was a little confused when I read the letter.
So--and plus, there is so much. There is so much just like
the whole thing about withdrawing your appeal; that is on Page
4. So I think that in itself and alone, should probably be--it
is one of the most important aspects of this program, because
once you withdraw all your appeals at the board, you can't go
back and you can't go back until February of 2019. So, that is
extremely important for a veteran to know and they won't know
that if it is on Page 4.
Most veterans, when they receive these letters, they may
briefly read through it, but the second they see that this
program is quicker, that they are going to receive a notice
faster, then they are more likely to jump in. But I think it is
important for the veterans to know just what exactly they are
jumping into.
And that is why it is so important for the service
organizations to be a part of this. And like Ms. Rauber said,
it is important for the veterans' representative to receive a
copy of this letter, to know that they have been selected for
this program, because then they can contact the veteran and
say, Look, you have this letter, let me explain it to you.
Otherwise, veterans aren't going to know what they are
reading and once they see ``quick'' they are just going to go
and opt-in.
Mr. Bost. So, to all three of you, maybe the concerns I
have is how do you advise your VSO, your actual frontline case
agent to advise them? Is it uniform between all of our VSOs?
Mr. Henry, you have kind of got a larger concern in comparison
to the other organizations and is there a uniform among our
agents working for the veterans to either give a positive
response towards this or a negative response or is it just to
keep them informed?
Mr. Marszalek. I think the biggest part is the knowledge
piece and the training piece. Are they aware of it? Do they
know the ramifications of it?
You know, I have asked Dave McLenachen to come to a
conference that we had with all of our supervisors and have him
get up there and talk about RAMP and what it is all about. They
don't need to just hear it from me; they need to hear it from
VA, as well.
Our whole theme of our conference is nothing changes if
nothing changes, right?
Mr. Bost. Because if it is not working now ----
Mr. Marszalek. The current process we have today is broken.
We all know that. That is why we are here.
So, you know, I did this for 10 years in the field before I
came to Washington, D.C. and I have a hard time telling
somebody not to opt-in, right, when they are going to get a
quicker decision. And let's say they are even close to getting
a board decision and they get an unfavorable decision at the
local RO. The new letter they get tells them, you know, it is
more informative, right? That is one of my favorite pieces of
this program is that new decision notification letter,
providing more explanation about why you didn't get the
benefits you were seeking.
So, now, let's take a look at that. Let's see what evidence
we need. We can go back through that claims lane. I am going to
be hard-pressed to tell somebody to go directly to the board
unless it is a matter of law, and if it is, let's go get in
line right now. You are going to be one of the first to get
your cases heard now. You know, that is an advantage. I think
if you opted in now and got in line now, you are going to be
one of the first to get heard.
Mr. Bost. Well, thanks for your input, and we are going to
continue to work on this. Your input is vitally important on
this.
With that, I yield back.
The Chairman. I thank the gentleman for yielding.
Ms. Brownley, you are recognized.
Ms. Brownley. Thank you, Mr. Chairman.
Mr. Henry, I appreciate your testimony and to summarize, it
sounds like it is really sort of rolling the dice and your
members have very complicated cases, which is extremely
understandable.
I am just wondering. We heard the VA testify that at least
based on the small population that have gone, that have opted
in and have gone through the process, there is a 62 percent
success rate. Can you speak to that and do you have any of your
members in that population of success?
Mr. Henry. From what I have been told, no. I think it is
important to note that all of the cases that VA has adjudicated
so far for the RAMP has been at the appeals management office.
Once these claims go out into the field--now, we surveyed our
field employees and they told us that basically the feeling
they received from VA is, they have very little confidence in
this program.
The people or the representatives from VA that are going to
be adjudicating these claims are decision-review officers.
These are men and women who have spent the majority of their
time or they have the most time developing and deciding claims.
There is a common perception within the VA with DROs that
they have a very limited authority on how they can develop and
basically write claims. I mean that is just not the case, but
it is a common perception throughout VA.
So, if you are moving these same men and women to the same
positions that are going to decide the RAMP claims, you are
really not changing anything. You are going to basically put
them in the same position that they were before. And we have
heard that from the field. A lot of the decision-review
officers have said, This is nothing more than another DRO
review.
In that case, the claims that they feel they can't rate,
they are just going to push to the board anyway. Now, if this
gentleman has jumped into RAMP, that means that they can't
appeal their claim to the board. They have to wait until 2019.
And for us, I mean like Mr. Marszalek said, this may work
for some veterans. It may work for some of ours, but right now,
we haven't seen the specific instance where it will work for
one of our veterans. We can't make a--PVA can't use a blanket
statement and say, Yes, this will work for PVA. We don't know.
We are going to look at it very carefully on a case-by-case
basis until we specifically tell one of our veterans, Yes, opt-
in.
Ms. Brownley. And how do you--what is your feeling in terms
of interacting with the VA, trying to improve upon the process
as we are going through this sort of trial balloon?
Mr. Henry. I mean, there has been communication within VA
and the VSOs, but it has been extremely quick. They are
implementing this program very quickly and we don't think it is
a pilot program. We don't think it is a test program. They are
basically trying to implement--at least, that is how we feel--
they are trying to implement appeals reform now. They are
trying to do it quicker.
And we think that they are just jumping ahead of
themselves, and for us, it is just not advantageous for our
members. And I think it is just--I can only speak on behalf of
PVA. I can't speak to Ms. Rauber's organization or Mr.
Marszalek's organization, but in regards to PVA, it is just not
something that we see it as being very advantageous for our
members.
Ms. Brownley. Thank you. I need to be in the Capitol at
12:15, so I am going to have to yield back. I did have other
questions, but I want people to know that I am leaving because
I am already late. So, thank you, I yield back.
The Chairman. I thank the gentlelady for yielding.
Mr. Takano, you are recognized.
Mr. Takano. Thank you, Mr. Chairman.
To any of you who may want to answer this, my first
question is, how concerned are you about the fact that RAMP is
not being tested at the board level?
Ms. Rauber. We think that is a concern because we believe
that it is difficult to counsel a veteran to go into a system
where there is not completion all the way through. And, yes, we
understand VA's position that the gates will be open first to
those individuals, but without knowing it the whole way
through, I think it is difficult and we are relying on the
statement that they will be ready.
I think, also, there is concern about how the hearing lanes
are going to work. There are several different lanes that are
going to be set up at the board, and as I mentioned in my
testimony, there are 87,000--85,000 people waiting now already
for hearings.
How is that all really going to run? And I think we have
concerns about that.
Mr. Takano. All right. Anyone else want to add to that?
Mr. Marszalek. The biggest piece for us at the board is how
they are going to operate those new dockets. You know, they
have a goal for the no-evidence, no-hearing lane of one year,
but there is no goal established for the hearing lane or
hearing any evidence or just evidence and we want to make sure.
We are going to pay very, very close attention to that to make
sure it is being operated very fairly across the board for even
the legacy appeals, as well.
Mr. Takano. Great. Mr. Henry, among your concerns in RAMP,
if you were to highlight it, what one specific change would you
like to see to make RAMP better? Maybe you can't limit yourself
to one, but----
Mr. Henry. I think if anything, it would be to--if the
veterans choose to opt-in to RAMP, they don't lose their place.
They don't lose their docket date at the board. And they have
the chance, if they receive a negative decision through RAMP,
they have the opportunity to go back to where they were before
and they don't lose their docket date.
Mr. Takano. Okay. Thank you. Thank you.
To all of you, have you been receiving calls from veterans
who have not sent RAMP enrollment letters, but want to know
about RAMP?
Mr. Marszalek. Yes, we have received calls from veterans
that are inquiring about can they participate, and we have told
them no. That is something that was in our written testimony
and our oral testimony that we believe VA should open that up.
If we do come across a claimant who would be perfect for RAMP,
that we be allowed to opt them in at that time.
Mr. Takano. Thank you.
Ms. Rauber. I am not aware of calls our members are getting
in that regard, no.
Mr. Takano. Mr. Henry?
Mr. Henry. I am not aware of calls either.
Mr. Takano. Thank you. To all of you, how do you feel
communication from the VA to VSOs is going in how do you feel
your input is being received and what is the average response
time from the VA?
Mr. Marszalek. You know, in my 17 years of doing this, this
is probably the best we have working together ever. You know, I
called Dave McLenachen and two days later, we were sitting down
and having a meeting about some of the concerns that I had and
we wanted to talk about and get an update from him on what was
going on.
So, I think today is the best that it has ever been since I
have been in this business in 17 years. So, that is great for
us to see. We are very, very happy with the collaboration of us
all working together.
Mr. Takano. That is great to hear.
Ms. Rauber. I have to say that I obviously represent
attorneys and agents and I will say that VA has made a
concerted effort during this implementation period to continue
to keep us informed. Of course, we would always like a little
bit more time to take a look and really consider the things
that they are providing to us, and we really do hope that they
are going to listen to the feedback and take some of the
suggestions that we have made on the regs and other forms.
Mr. Henry. The communication has been good, but just from
our perspective, communication has been all about RAMP. There
hasn't been a lot of communication about appeals reform. So,
right now, the emphasis is RAMP, RAMP, RAMP.
So, I think that if they put out a little bit more
communication in regards to the full reform, that way we are
prepared for when it is fully implemented in 2019.
Mr. Takano. Well, thank you very much.
Mr. Chairman, that concludes my questions. I don't--I will
yield back the balance of my time.
The Chairman. I thank the gentleman for yielding.
And, first of all, I want to thank the panel. This is a
great addition to the--I wish more members could have been here
to hear this, but I appreciate your view because you view it at
the ground level, not at the thirty-thousand-foot level.
Do you have any closing comments?
Mr. Walz. No, thank you, all.
The Chairman. I want to just finish by saying a couple of
things. One, I think it was a very productive meeting and one
of the focuses of this Committee this year is going to be on
appeals reform. We have a couple of other things on choice we
have to do and asset review, but one of the major focuses is
going to be on getting this right.
And I remember nine years ago, the Ranking Member was here
with me--yes, the two of us who have been here the longest--
there were a million claims. I remember that number just
startled me. In 2009, a million disability claims out there.
And so, to VA's and to your hard work, that's been reduced,
but all those numbers are fine, but if there is somebody
sitting, waiting on a mailbox or a phone call somewhere, that
one person, it is 100 percent of their claim that hasn't been
heard and they are waiting years and years and years.
So, I think I heard several things from Secretary Bowman
today, that he's willing to come back or willing to give the
Committee a monthly report on where they are in this program.
Number two, I have learned a new--a sand table. I have learned
a new term today. We are going to do that in 60 days and the VA
will return, along with you all before the August recess to do
another one of these sit-downs to see where we are.
The other thing I like about this program is it is an opt-
in program. Maybe the optics of getting a letter are hard for
veterans to understand.
The other thing I have learned today is that--and we knew
this--that each case is different and what size may fit--it is
not a size 10 shoe for everybody. It is a--someone has
different, like the issues of Mr. Henry brought up are very
complicated cases. Others may be fairly simple, although they
have taken a lengthy amount of time to do this.
Again, one of the things I like is you can choose to do
this program or not. I think what VA is trying to do is to get
enough data to say when they go live in February of 2019 that
they are able to--that they have the resources to do that and
they are testing it out now on a voluntary basis.
So, I know this entire Committee, and I think I can speak
for the Ranking Member, are committed to working on this with
the Department of VA, the VSOs, GAO, and anyone else really to
help the VA get to a new system that ultimately gets to our
goal, which is a timely and accurate adjudication of these
claims.
So, again, I want to thank you all, the witnesses, for
being here.
I ask unanimous consent. We have several written statements
provided for the record, be placed in the hearing record.
Without objection, so ordered.
The Chairman. And also, I ask unanimous consent that all
Members have five legislative days in which to revise and
extend their remarks and include any extraneous material.
Without objection, so ordered.
The meeting is adjourned.
[Whereupon, at 12:22 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Thomas G. Bowman
Good morning, Chairman Roe, Ranking Member Walz, Members of the
Committee. Thank you for inviting us here today to discuss VA's plans
for implementing the Veterans Appeals Improvement and Modernization Act
of 2017 (Modernization Act). Joining me today are Ms. Cheryl L. Mason,
Chairman, Board of Veterans' Appeals; Mr. David J. Barrans, Chief
Counsel, Benefits Law Group, Office of General Counsel; and Mr. David
R. McLenachen, Director of the Appeals Management Office, Veterans
Benefits Administration.
The Modernization Act
The Modernization Act, enacted on August 23, 2017, is the most
significant statutory change affecting VA disability compensation
appeals in decades and I wish to thank the Committee for its work on
the much-needed comprehensive legislation that will reform an archaic
process into one that makes sense for Veterans, their advocates, VA,
stakeholders, and taxpayers. I appreciate the opportunity to come
before you today to discuss the Department's plans to implement the new
claims and appeals process and strategies for managing the legacy
appeals inventory.
VA remains committed to timely and full implementation of the
Modernization Act by ensuring information technology (IT) systems for
the new claims and appeals process are developed or updated; employees
are properly trained; and Veterans are fully informed of the changes
and their options in seeking review of VA's decisions on their claims.
VA has a clearly defined strategy for managing the new process and
legacy appeals workload and is committed to transparency in reporting
its metrics and goals relating to both implementation plans and these
separate workloads.
VA's Implementation Plan
VA has developed a implementation plan that was collaboratively
prepared by the Board of Veterans' Appeals (Board) and the Veterans
Benefits Administration (VBA) and contains inputs from other components
of VA involved in the implementation of the Modernization Act. VA
initiated this 18-month plan immediately after the law was enacted, and
fully expects to implement the new claims and appeals process by
February 2019. VA will utilize the period between now and then to
promulgate regulations, establish procedures, hire and train personnel,
implement IT system changes, conduct outreach, and gather data for
trends analyses and metrics reporting. Due to the magnitude and scope
of the statutory changes, VA is employing a governance structure to
oversee and document appeals modernization implementation using project
management experts to institute key project management tools and
deliverables. To track implementation progress, the plan includes
timelines, interim goals and milestones, reporting requirements, and
established deadlines to ensure timely execution.
Workforce Planning and Human Capital Strategy
In order to ensure smooth implementation, the Board has a workforce
plan to recruit, hire, and train new employees. The Board started
fiscal year (FY) 2017 with 667 Full Time Equivalents (FTE) and ended
the year with 944 FTE. This year, the Board will hire up to 1,050 FTE,
with the majority of those being attorneys who are responsible for
preparing decisions for Veterans Law Judges. These employees are the
core of the Board's Appellate Operations line of business. The Board
remains able to attract high-caliber attorneys and administrative
personnel because the mission to serve Veterans is one that is
particularly desirable to those seeking a career in public service. The
Board will also fill several support positions and will continually
assess its resources and focus on its core mission.
Beginning in April 2018, training at the Board will commence for
both new and existing staff on the legacy system as well as the new
statutory framework and proposed regulations. To prepare, the Board
will develop specific training materials from January through March
2018. These materials will be authored by an existing group of
employees who serve as subject matter experts (SME) on appeals
modernization. These trainings will be provided by the SMEs to all
legal staff and impacted administrative branches. Once final
regulations are published, any changes to the proposed rules will be
incorporated into the training materials and additional training will
be conducted.
Information Technology Strategy
VA has also undertaken enterprise-wide efforts to modernize the
appeals process through improvements in technology. As part of this
effort, VA has used information technology funds to develop and
optimize paperless functionality in VA appeals processing. With FY 2016
and 2017 IT funding, VA began a multi-phase process of enhancing
appeals functionality in the paperless claims environment. These
enhancements are necessary to keep pace with the transformation of
benefits processing that occurred at the beginning (i.e., claims) of
the VA benefits system. Initial key appeals-specific functionalities in
the paperless environment will focus on seamless integration of
systems, and key accountability and workability features. This
investment will best position the Department, from a technological
standpoint, to address the VA appeals inventory.
During recent years, Appeals IT modernization efforts have largely
been directed and handled within the Board, led principally by the
Digital Service at VA (DSVA) team. While these efforts initially
focused on retiring the legacy case management system, DSVA is now
incorporating new functionality within its roadmap to support the
required legislative changes and will begin testing Caseflow Queue in
March 2018. In this capacity, DSVA implemented several technology
functions in calendar years 2016 and 2017, including Caseflow Dispatch,
Caseflow Certification, eFolder Express, Caseflow Reader, and Caseflow
Intake.
VBA has also been working to develop information technology system
requirements for necessary appeals modernization enhancements within
its Veterans Benefits Management System (VBMS). Following the enactment
of the Modernization Act, VA has been working to ensure synchronization
between DSVA and VBA design efforts in conjunction with necessary
prioritization of VA IT resources.
To address how VA will implement the new process while reducing the
legacy appeals inventory, VA created an Appeals Processing Metric and
Performance Tracking integrated project team to design a process for
tracking timeliness of appeals within the legacy process, as well as
the new process. VA plans to take a Veteran-centric approach to
measuring the success of the new appeals process and will measure
average Veteran wait times in the new process as one indicator of
success. VA has already held several requirements gathering sessions to
ensure that methods for capturing the data to accurately measure,
track, and report metrics required by the Modernization Act are
developed. Further, to ensure full transparency in reporting to the
Congress and the public, VA will periodically publish on its website
the results for the comprehensive metrics relating to processing of
claims and appeals under the new process, the legacy process, as well
as the legacy appeals for which Veterans opt-in to the new system, as
delineated in the statute.
Legacy Appeals Strategy
The Modernization Act also authorizes VA to test assumptions in the
implementation of the new claims and appeals system. Accordingly, VA
has decided to carry out a pilot program during the implementation
period, the Rapid Appeals Modernization Program (RAMP). The initiative,
which was launched on November 1, 2017, allows eligible participants
with disability compensation appeals pending with VBA the voluntary
option to have their decisions reviewed in the higher-level or
supplemental claim review lanes outlined in the Modernization Act,
giving Veterans early access to the benefits of the new system, while
also allowing VA to better position itself for full implementation in
February 2019. Since disability compensation appeals account for the
vast majority of all pending appeals, the program allows most Veterans
with pending appeals to participate.
VBA has created training materials in order to train its employees
on the RAMP process. VBA's Appeals Management Office (AMO) is utilizing
its Appeals Resource Center (ARC) in Washington, D.C., as the initial
site to process the elections received from Veterans who participate in
the program. AMO will expand RAMP processing to certain regional
offices as the RAMP workload grows. Designated ARC employees received
instructor-led training during the month of November 2017. The AMO is
utilizing the feedback received to perfect the training materials prior
to expanding the program to regional offices. VBA will incorporate the
training materials developed for RAMP into the development of training
materials for full implementation.
The new law requires VA to modify its decision notices to Veterans
to ensure they are clearer and provide adequate detail. This notice
will help Veterans and their advocates make informed choices as to
which review option makes the most sense. With RAMP, VA is testing a
version of the new decision notice that meets the requirements outlined
in the statute. VA worked collaboratively with Veterans Service
Organizations (VSO) and other stakeholders in implementing RAMP and the
new improved decision notices. RAMP provides VA with an opportunity to
receive feedback from participants and their representatives on the
notice's ability to meet the needs of all Veterans and make any
necessary adjustments prior to full implementation of the new system in
February 2019.
Furthermore, data collected during RAMP allows VA to test
particular facets of the new process, make refinements based upon
actual data that support or disprove assumptions, and make adjustments
based upon identified problems prior to full implementation. VA will
use several internal metrics to track RAMP's progress. During this
program, VA will gather data and conduct trends analyses on aspects of
Veterans' behavior, to include their decision to elect to participate
in the new process, the distribution of elections among the new process
lanes, claims processing timeliness, and individual employee
productivity. The data collected during RAMP will allow for forecasting
of the reduction of the legacy appeals inventory, as well as ensure
adequate resources are directed towards RAMP claims. In addition, the
data will inform VA as to appropriate work credit, workload capacity
estimates, and processing timeliness metrics for the new process.
Appeals that are not converted to the new process under RAMP will
continue to be worked under the legacy process. VA will also use the
data to assist in developing future resource requirements as part of
the annual budget process.
With RAMP, VA has already made great strides toward implementing
the new process; for instance, DSVA was able to support VA and to
define Caseflow Intake as a solution for managing Veterans' elections
to participate in RAMP using agile development technology. In addition,
after gathering input from VSOs and other stakeholders, VA has
developed, and is in the process of testing, a more detailed decision
notice for compensation appeals, as well as the election opt-in notice.
Furthermore, with the implementation of RAMP, VA has created
enhancements to VBMS that allow higher-level review personnel to
capture duty to assist error data.
By February 2019, VA anticipates that requests for review of VA
decisions will be processed under the new law and implemented
regulations. However, a significant number of legacy appeals may remain
in the system pending a final resolution. Beyond the work that VA is
doing to develop sound monitoring and workload tracking practices for
the new appeals process, VA continues to closely monitor the existing
legacy appeals workloads. As part of an effort to streamline and
improve performance in legacy appeals processing, in January 2017, VBA
realigned its administrative appeals program under AMO. The realignment
identified a single office responsible for overseeing VBA's appeals
policy and operations, and has resulted in increased accountability for
appeals performance. The realignment positions VBA to focus oversight
of program operational work, standardize policies and procedures to
facilitate consistent benefit delivery, improve customer satisfaction,
and increase the ability to make data-driven decisions. The improved
focus and prioritization helped increase VBA appeals production by
approximately 24 percent, decrease its appeals inventory by 10 percent,
and increased its appeals resolutions by 10 percent, resolving over
124,000 appeals during FY 2017.
During the 18-month implementation period, the Board is working to
provide resolution for Veterans waiting for an appeal decision under
the legacy system by focusing Board resources on its core mission:
decisions and hearings. At the beginning of FY 2018, the Board changed
its attorney performance standards and projects productivity of 79
decisions per FTE for legacy appeals. The Board is currently on pace to
produce over 81,000 decisions during this fiscal year which would
represent a historic level of production. The Board's strategy to
reduce the pending inventory of appeals is to: 1) continue to grow the
organization's attorney force, 2) re-engineer processes to include
introducing a new decision template, 3) explore new case review
techniques, 4) allow the Board to issue timelier decisions soon after a
Veteran has a hearing with a Veterans Law Judge, and 5) use telework to
accommodate the growth in personnel.
Following the implementation, the Board will focus its resources on
its core mission and will work to maximize efficiencies in appeals
processing, to include technological and process improvements. The
Board will assign the workload across its attorney and Judge corps and
manage the workload through Caseflow queue. Caseflow queue will
electronically track the incoming cases and ensure accurate case
assignment from both the legacy and the new framework lanes. This will
assist the Board in meeting timeliness goals in the new system and
ensure the continuing processing of legacy appeals.
Additionally, appellants who receive a statement of the case (SOC)
or supplemental statement of the case (SSOC) in the legacy system on or
after the effective date of the new system will have the opportunity to
elect to participate in the new system. Both the RAMP initiative, as
well as the SOC opt-in, will directly impact legacy cases and provide
early resolution for Veterans.
VA's Appeals Resources
VA projects an average processing time of 125 days to complete
higher-level reviews and supplemental claims under the new process, and
365 days to complete appeals to the Board in which there is no
additional evidence and no request for a hearing. Average processing
time for an appeal on the Board's other dockets will be based on
resource allocation, which VA will continually reevaluate and adjust.
The RAMP pilot will provide better data and trend analysis for capacity
modeling the resources needed for these other dockets prior to the
implementation date. The Board will use the actual data obtained
regarding appellant behavior in the new system to assist in developing
future resource requirements as part of the annual budget process. VA
intends to update the model when actual data can be used to replace
projected data, when assumptions are shown to be no longer accurate, or
based on any change in resources resulting from annual budget
appropriations.
Stakeholder Engagement
VA also continues to work collaboratively with a wide spectrum of
stakeholder groups, in accordance with Congressional intent, to refine
the new VA claims and appeals process. The dedicated engagement of
those organizations is providing VA with invaluable feedback, which is
being incorporated into VA efforts to: 1) develop new forms, 2)
establish internal standard operating procedures, 3) create training
materials, and 4) develop communications and outreach products for
Veterans. VA is grateful to all of the stakeholders for their continued
contributions of time, energy, and expertise in this effort.
Mr. Chairman, this concludes my statement. Thank you for the
opportunity to appear before you today. We would be pleased to respond
to questions you or other Members may have.
Prepared Statement of Gene L. Dodaro
VA DISABILITY BENEFITS
Opportunities Exist to Better Ensure Successful Appeals Reform
Chairman Roe, Ranking Member Walz, and Members of the Committee:
I am pleased to be here today to discuss our review of the
Department of Veterans Affairs' (VA) plan for implementing a new
disability appeals process while processing pending appeals under the
current, or legacy, process. VA provides cash benefits to veterans for
disabling conditions incurred in or aggravated by military service,
paying an estimated $67 billion to about 4.3 million veterans in fiscal
year 2016. \1\ If veterans are dissatisfied with VA's initial decision
they can appeal-first to the Veterans Benefits Administration (VBA) and
then, if not satisfied there, to the Board of Veterans' Appeals
(Board), a separate agency within VA. In recent years, the number of
appeals of VA's benefit decisions has been rising. For appeals resolved
in fiscal year 2017, veterans waited an average of 3 years from the
date they initiated their appeal to resolution by either VBA or the
Board-and a cumulative average of 7 years for appeals resolved by the
Board. \2\ Due in part to the challenges VA faces managing large
workloads and deciding disability claims and appeals in a timely
manner, GAO in 2003 designated VA disability compensation and other
federal disability programs as one of the government's highest
management risks. \3\
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\1\ VA Fiscal Year 2018 Congressional Budget Justification.
\2\ VA, Comprehensive Plan for Processing of Legacy Appeals and
Implementing the Modernized Appeals System (Washington, D.C.: Nov. 22,
2017).
\3\ GAO, High-Risk Series: Progress on Many High Risk Areas, While
Substantial Efforts Needed on Others, GAO 17 317 (Washington, D.C.:
Feb. 15, 2017).
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In a March 2017 report, we examined VA's approaches to address
challenges it identified as contributing to lengthy appeals processing
times-including VA efforts to hire staff, propose reform legislation to
Congress in April 2016, and upgrade its information technology systems-
and the extent to which those approaches were consistent with sound
planning practices. \4\ We made five recommendations to improve VA's
ability to implement its proposed appeals process reform while
addressing a growing appeals workload. VA agreed in principle with our
five recommendations, which remain open as of January 2018. We
recommended, in essence, that VA develop: (1) a detailed workforce
plan, (2) a complete schedule of information technology (IT) updates,
(3) better estimates of future workloads and timeliness, (4) a robust
plan for monitoring appeals reform, and (5) a strategy for assessing
whether the new process improves veterans' experiences over the current
process. \5\ We also suggested that Congress require VA to pilot test
appeals reform.
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\4\ GAO, VA Disability Benefits: Additional Planning Would Enhance
Efforts to Improve the Timeliness of Appeals Decisions, GAO 17 234
(Washington, D.C.: Mar. 23, 2017).
\5\ While agreeing in principle, VA stated in its written comments
that all five recommendations should be closed because its efforts to
date already addressed the recommendations, or further progress was
contingent upon passage of appeals reform legislation. We disagreed and
maintained that VA needed to take further action on all
recommendations.
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Enacted on August 23, 2017, the Veterans Appeals Improvement and
Modernization Act of 2017 (the Act) will make changes to VA's appeals
process. \6\ Specifically, the Act replaces the current appeals process
with a process that gives veterans various options to have their claim
reviewed further by VBA or to bypass VBA and appeal directly to the
Board. The Act also requires VA to submit a comprehensive plan for
implementing the new appeals process and processing legacy appeals
(appeals that remain pending in the current process prior to fully
implementing appeals reform) to the appropriate committees of Congress
and GAO. \7\ The Act delineates the required elements of this plan, and
required VA to submit its plan within 90 days of enactment. VA
submitted its plan on November 22, 2017. The Act also includes a
provision for GAO to assess VA's appeals plan, including whether the
plan comports with sound planning practices and/or contains gaps.
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\6\ Pub. L. No. 115-55, Sec. 2, 131 Stat. 1105, 1105. (2017)
\7\ The Act defines ``appropriate committees of Congress'' to be
the Committee on Veterans' Affairs and the Committee on Appropriations
of the Senate, and the Committee on Veterans' Affairs and the Committee
on Appropriations of the House of Representatives.
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My testimony today is based on work being conducted for a report
that GAO expects to issue pursuant to the Act. This statement focuses
on the extent to which VA's appeals plan (1) addresses the required
elements in the Act; and (2) reflects sound planning practices
identified in prior GAO work.
To assess the extent to which VA's plan addresses the required
elements in the Act, we identified the required elements for VA's
comprehensive plan under section 3(a) and (b) of the Act; compared the
required elements against VA's appeals plan and supplemental materials
VA provided at our request; and made a preliminary determination as to
whether VA's plan addressed, partially addressed, or did not address
each element. We then shared the results of this review with VA
officials, and considered their comments in arriving at our assessment.
\8\
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\8\ We developed a checklist and decision rules to determine
whether VA's appeals plan addressed, partially addressed, or did not
address each required element, or all of the sub-parts of each required
element of the Act. Using these tools, an analyst reviewed VA's plan
against each required element and documented a judgment about whether
that element was addressed in VA's appeals plan. An attorney reviewed
the analyst's assessment and documented agreement or disagreement with
the initial assessment. Where the attorney and analyst did not agree, a
second attorney reviewed and made a final decision. We sent our
preliminary assessment to officials at VA for comment and verification,
which we considered in arriving at our assessment.
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To address the extent to which VA's plan reflects sound planning
practices, we compared the appeals plan and supplemental materials
against relevant sound planning practices and other criteria identified
in our prior work. \9\ Our analyses focused on the information and
elements VA presented in its appeals plan and supplemental materials
provided by VA, rather than auditing the underlying information. We
conducted the work for this statement in accordance with generally
accepted government auditing standards. Those standards require that we
plan and perform the audit to obtain sufficient, appropriate evidence
to provide a reasonable basis for our findings and conclusions based on
our audit objectives. We believe that the evidence obtained provides a
reasonable basis for our findings and conclusions based on our audit
objectives.
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\9\ See GAO 17 234. Specifically, that report identified best
practices and other criteria through a review of relevant literature,
such as federal internal control standards and prior GAO reports where
we defined a number of desirable characteristics of an effective,
results-oriented plan, or components of sound planning practices. For a
list of the sources of sound practices and criteria used to evaluate
VA's approaches, see the Related GAO and Other Products section of GAO
17 234 (page 61).
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Background
VA's Disability Compensation Claims Process
VA's process for deciding veterans' eligibility for disability
compensation begins when a veteran submits a claim to VA. The veteran
submits his or her claim to one of VBA's 56 regional offices, where
staff members assist the veteran by gathering additional evidence, such
as military and medical records, that is needed to evaluate the claim.
Based on this evidence, VBA decides whether the veteran is entitled to
compensation and, if so, how much.
A veteran dissatisfied with the initial claim decision can
generally appeal within 1 year from the date of the notification letter
VBA sends to the veteran. Under the current appeals process (now
referred to by VA as the legacy process), an appeal begins with the
veteran filing a Notice of Disagreement. VBA then re-examines the case
and generally issues a Statement of the Case that represents its
decision. \10\
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\10\ According to VA officials, the veteran can elect either a
traditional VBA review or a VBA review by a Decision Review Officer
(DRO). Under the traditional review option, the veteran may present new
evidence and receive a formal hearing. In general, the review can
change VBA's original decision based only on new evidence, or a clear
and unmistakable error in the original decision. Alternatively, the
veteran may elect a review by a DRO, who reviews the record without
deference to VBA's original decision, and can revise that decision
based on a difference of opinion. If needed, the DRO may also pursue
additional evidence or discuss the appeal informally with the veteran
or the veteran's representative.
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A veteran dissatisfied with VBA's decision can file an appeal with
the Board. In filing that appeal, the veteran can indicate whether a
Board hearing is desired. Before the Board reviews the appeal, VBA
prepares the file and certifies it as ready for Board review. If the
veteran requests a hearing to present new evidence or arguments, the
Board will hold a hearing by videoconference or at a local VBA regional
office. The Board's members, also known as Veterans Law Judges, review
the evidence and either issue a decision to grant or deny the veteran's
appeal or refer (or remand) the appeal back to VBA for further work.
New Appeals Process
The 2017 Act made changes to VA's legacy appeals process that will
generally take effect no earlier than February 2019, which is
approximately 18 months from the date of enactment. \11\ According to
its appeals plan, VA intends to implement the Act by replacing the
current appeals process with a process offering veterans who are
dissatisfied with VBA's decision on their claim one of five options:
two of those options afford the veteran an opportunity for an
additional review of VBA's decision within VBA, and the other three
options afford them the opportunity to bypass additional VBA review and
appeal directly to the Board. \12\
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\11\ Under the Act, the legal changes to VA's appeals process will
generally take effect on or after the later of (1) 540 days
(approximately 18 months) after enactment and (2) 30 days after the
Secretary of Veterans Affairs submits to the appropriate committees of
Congress (i) a certification that VA has the resources, personnel,
office space, procedures, and IT required to carry out the new appeals
system and to timely address appeals under the new appeals system as
well as pending legacy appeals, and (ii) a summary of the expected
performance outcomes used in making the certification with respect to
legacy claims and a comparison of these expected outcomes with actual
program performance with respect to the appeals under the legacy system
(before the new system is implemented). Pub. L. No. 115-55, Sec. 2,
131 Stat. 1105, 1105 (2017).
\12\ Veterans who are dissatisfied with VBA's decision on their
appeal may file another appeal to the Board using one of these three
options, according to VA officials.
Under the new appeals process, the two VBA options will
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be:
1. Request higher-level review: The veteran asks VBA to review its
initial decision based on the same evidence but with a higher-level
official reviewing and issuing a new decision.
2. File supplemental claim: The veteran provides additional
evidence and files a supplemental claim with VBA for a new decision on
the claim.
The three Board options will be:
3. Request Board review of existing record: The veteran appeals to
the Board and asks it to review only the existing record without a
hearing.
4. Request Board review of additional evidence, without a hearing.
5. Request Board review of additional evidence, with a hearing.
VA's Appeals Plan
The Act also requires VA to submit to the appropriate committees of
Congress and GAO, within 90 days of the date of enactment, a
comprehensive plan for (1) processing appeals under the legacy process
until there are no more to process, (2) implementing the new appeals
process, (3) processing of claims under the new appeals process in a
timely manner, and (4) monitoring implementation of the new appeals
process. In addition to these four broad elements, the Act lists 18
elements required to be included in the plan that relate to, among
other things:
staffing, information technology (IT), and other
resources required to implement the plan;
estimated timelines for hiring and training VA employees;
and
a description of risks associated with each element of
the plan. \13\
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\13\ Pub. L. No. 115-55, Sec. 3(a) and (b), 131 Stat. 1105, 1116.
(2017)
The Act also includes a provision for GAO to assess the plan within
90 days after VA submits it. \14\
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\14\ VA submitted its plan to GAO on November 22, 2017.
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The Act also requires VA to provide progress reports to the
appropriate committees of Congress and GAO at least once every 90 days
(starting after VA submits its plan), until the date the Act's legal
changes to the appeals process generally go into effect and then at
least once every 180 days after this date for 7 years.
Rapid Appeals Modernization Program (RAMP)
The Act also authorized VA to carry out a program to test any
assumptions relied upon in developing its comprehensive plan and test
the feasibility and advisability of any facet of the new appeals
process. In its appeals plan, VA reported its decision to pilot test
two of the five new options by allowing veterans with pending appeals
in the legacy process (known as legacy appeals) to elect the VBA
supplemental claim or the higher-level review options beginning in
November 2017. This program, which VA refers to as RAMP, is intended to
reduce legacy appeals by providing veterans with a chance for early
resolution of their claims within VBA while the Board focuses on
reducing its inventory of legacy appeals, according to VA.
Participation in RAMP is voluntary, but veterans must withdraw their
pending legacy appeal to participate, according to VA. Veterans
dissatisfied with their RAMP decisions must wait until VA fully
implements the new appeals process (in February 2019 at the earliest)
before pursuing an appeal with the Board under the new process,
according to VA officials.
VA's Plan Addresses Most of the Act's Required Elements for the New and
Legacy Disability Appeals Processes
VA's appeals plan addresses 17 of the Act's 22 required elements,
partially addresses 4 related to monitoring implementation and
workforce planning, and does not address 1 element related to
identifying total resources. For example, VA's appeals plan addresses
the required elements related to, among others, identifying legal
authorities for hiring and removing employees, estimating timelines for
hiring and training employees, and outlining the outreach VA expects to
conduct. For the elements in the Act that VA's appeals plan partially
addresses or does not address, see table 1. For a detailed list of the
22 required elements in the Act, see appendix I.
1: The Department of Veterans Affairs' (VA) Appeals Plan Partially Addresses or Does Not Address 5 of 22
Required Elements of the Veterans Appeals Improvement and Modernization Act of 2017
----------------------------------------------------------------------------------------------------------------
VA's comments and our
Required element in the Act What VA provides Our assessment response
----------------------------------------------------------------------------------------------------------------
Section 3(a)(4) A's plan states that the Partially addressed: VA's VA officials stated that
A comprehensive plan for agency convened an appeals plan does not they disagree with our
monitoring the enterprise-wide governance contain sufficient details assessment and that their
implementation of the new workgroup to oversee about metrics for tracking appeals plan addresses
appeals system, including implementation and develop the progress of this required element.
metrics and goals- metrics and track implementation Their comments generally
(A) to track the progress timeliness of appeals in (subparagraph (A)) or the restated what is contained
of implementation; the legacy system and the metrics and goals for in VA's plan, except they
(B) to evaluate the new process. identifying potential added that the agency is
efficiency and The plan also references issues related to developing more detailed
effectiveness of the VA's intended use of implementation project plans and
implementation; and certain metrics, such as (subparagraph (C)). schedules.
(C) to identify potential average processing time for We continue to believe
issues relating to the Veterans Benefits VA's plan partially
implementation. Administration (VBA) addresses this required
options. element.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(2) VA's plan states the number Partially addressed: VA's VA officials stated that
Delineation of the of personnel required by appeals plan does not they disagree with our
personnel requirements of VBA and the Board of provide an estimate of assessment and that their
the Administration and the Veterans' Appeals (Board) personnel required for appeals plan addresses
Board, including staffing for concurrently processing either VBA or the Board this required element.
levels during the- legacy and new appeals in for the period when the Their comments generally
(A) period in which the fiscal year 2018 (1,495 and agency would no longer be restated what is contained
Administration and the 1,050 full-time processing legacy appeals. in VA's plan.
Board are concurrently equivalents, respectively). (subparagraph (B).) We continue to believe
processing- The plan also references VA's plan partially
(i) appeals of decisions on using data from the Rapid addresses this required
legacy claims; and Appeals Modernization element.
(ii) appeals of decisions Program (RAMP) and the new
on non-legacy claims under system-once fully
the new appeals system; implemented-to inform its
and personnel needs for when VA
(B) the period during which is no longer processing
the Administration and the legacy appeals.a Further,
Board are no longer VA's statements suggest the
processing any appeals of agency will wait for RAMP
decisions on legacy results and budget outcomes
claims. to estimate future
personnel requirements,
rather than develop
estimates based on a range
of assumptions.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(12) For VBA, VA provided Partially addressed: VA's VA officials stated that
Projections for the information on productivity appeals plan does not they disagree with our
productivity of individual projections for processing contain projected assessment and that their
employees at the legacy appeals in fiscal productivity information appeals plan addresses
Administration and the year 2018 that are not in for VBA processing of this required element. In
Board in carrying out the plan. Also, VA's plan appeals under the new their comments, VA
tasks relating to the states VA would use data process. officials provided
processing of appeals of from RAMP and the new additional information on
decisions on legacy claims process-once fully productivity projections
and appeals under the new implemented-to develop that are not in the plan.
appeals system, taking productivity information For VBA, VA provided
into account the for the new process. projections for the legacy
experience level of new For the Board, VA's plan process for fiscal year
employees and the enhanced provides productivity 2018. For the Board, VA
notice requirements under projections for processing restated that productivity
section 5104(b) of title legacy appeals in fiscal will be 79 appeals per
38, United States Code, as year 2018 and projects that full-time equivalent for
amended by section 2(e). productivity will be higher fiscal year 2018 and
under the new process. projects that productivity
will be higher than 79 in
the new appeals process.
We continue to believe
VA's plan partially
addresses this required
element due to the absence
of projected productivity
information for VBA
processing appeals under
the new process, which VA
anticipates will be
implemented in fiscal year
2019.
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Section 3(b)(17) VA's plan states that the Partially addressed: VA's VA officials stated that
Delineation of the key rate at which the legacy appeals plan does not they disagree with our
goals and milestones for appeals inventory can be contain milestones for assessment and that this
reducing the number of resolved depends on reducing legacy appeals. element is addressed in
pending appeals that are numerous factors, such as The plan also does not their plan. For the Board,
not processed under the future funding and the rate describe the expected VA also provided updated
new appeals system, that veterans opt into number of appeals, information that contained
including the expected RAMP. VA's plan indicates remands, and hearing aggregated appeals and
number of appeals, that the agency would requests at VBA, or the remands expected in fiscal
remands, and hearing collect information from expected number of hearing years 2018 and 2019.
requests at the RAMP and as the Board requests at the Board each We continue to believe
Administration and the begins deciding appeals in year. Further, the follow- VA's plan partially
Board each year, beginning the new process to develop up information VA provided addresses this required
with the one year period accurate goals and for VBA and the Board does element due to the absence
beginning on the date of milestones for reducing the not extend beyond fiscal of (1) milestones for
the enactment of this Act, number of pending legacy year 2019, yet VA reducing legacy appeals;
until there are no longer appeals at VBA and the indicates that the Board (2) expected number of
any appeals pending before Board. For the Board, VA will be processing legacy appeals, remands, and
the Administration or the provided aggregated appeals for several years. hearing requests at VBA,
Board for a decision on a information on appeals and or the expected number of
legacy claim. remands that were not in hearing requests at the
the plan. Board each year; and (3)
key goals and milestones
beyond fiscal year 2019.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(1) VA's plan states that the Not addressed: VA's VA officials stated that
Delineation of the total agency will use existing appeals plan does not they disagree with our
resource requirements of resources devoted to its include a delineation of assessment and that this
the Veterans Benefits workforce, IT systems, and the total resources element is addressed in
Administration and the performance tracking, among required by VBA and the their plan. Their comments
Board of Veterans' other areas, to implement Board to implement the new generally restated what is
Appeals, disaggregated by parts of the new appeals system while addressing contained in VA's plan.
resources required to process. VA's plan pending legacy appeals. We continue to believe
implement and administer indicates it will collect VA's plan does not address
the new appeals system and and use data from RAMP-for this required element.
resources required to example, on the (1)
address the appeals of percentage of veterans who
decisions on legacy opt-in to this program, (2)
claims. veterans' choices within
the new VBA options, and
(3) VA employees'
productivity-to inform
future funding requests
through the annual
appropriations process. In
its plan, VA states that it
will efficiently allocate
resources to the new
appeals process and
allocate all remaining
resources to address legacy
appeals.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of VA's November 2017 appeals plan and supporting documents VA provided on or before
January 18, 2018, the Veterans Appeals Improvement and Modernization Act of 2017, and agency input by VA. /
GAO 18 349T
Note: We identified 22 required elements for VA's comprehensive
plan under section 3(a) and (b) of the Act. Specifically, subsection
(a) contains 4 elements, and subsection (b) requires the appeals plan
to address 18 elements. Although this table shows the required elements
that VA's plan partially addresses or does not address, VA's appeals
plan addressed most (17 of 22) of the required elements in the Act. In
determining that VA's plan addresses these requirements, we assessed
the plan and its elements as presented, rather than auditing the
underlying information.
aRAMP involves VA inviting certain veterans with pending appeals-
starting with those appeals pending the longest-among other eligibility
criteria to participate in the higher-level review or supplemental
claims options with VBA, which are two of the five options that will be
available under the new appeals process to all veterans.
When we provided VA with our preliminary assessment, VA officials
said they disagreed with our assessment and that their appeals plan
addresses all 22 of the required elements. In general, they said that
data are not available, and VA cannot yet forecast the information
required by the Act until aspects of the new appeals process are tested
or implemented.
We continue to believe the information as presented in VA's appeals
plan and supplemental materials addresses 17 of the required elements,
partially addresses 4, and does not address 1 element. Without complete
information on all 22 of the required elements, Congress does not have
the information it needs to fully conduct oversight of VA's appeals
plan and the agency's efforts to implement and administer the new
process while addressing legacy appeals. VA also is required to provide
information on resources, among other areas, before it can certify that
the agency is prepared to carry out timely processing of appeals under
the new and legacy appeals process. \15\ Further, as discussed below,
addressing required elements through a more comprehensive plan and
underlying analysis is consistent with sound planning practices and
would better position VA to implement the new appeals process while
attending to legacy appeals; for example, a plan that provides for
carefully monitoring the new and legacy appeals processes against
balanced goals and metrics, and clearly articulates resources,
milestones and other information needed for effective program
management.
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\15\ VA's plan states that the agency intends to begin full
implementation in February 2019.
VA's Appeals Plan Reflects Certain Sound Planning Practices, but Could
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Improve on Others
VA's appeals plan reflects certain sound planning practices, such
as convening a working group on performance tracking; however, the plan
could benefit from including important details related to three key
planning areas:
1.articulating a balanced set of goals and related measures to
monitor and assess the performance of the new appeals process, in
conjunction with the legacy process;
2.developing a high-quality and reliable implementation schedule to
manage key steps and activities of the project; and
3.assessing key risks in a comprehensive manner, including
respective mitigation strategies, and articulating clear criteria and
an assessment plan for RAMP, and more fully testing or analyzing all
appeal options.
VA's Appeals Plan Indicates Steps to Assess Process Changes, but Should
Also Include Goals and Measures to Provide Full Picture of Success
VA's appeals plan reflects steps taken to track performance, but it
could improve its planning practices related to monitoring and
assessing performance on a range of key dimensions of success. Sound
planning practices suggest that agencies develop overall goals tied to
meaningful and balanced performance measures. These measures include a
mix of outcome, output, and efficiency measures to ensure that an
organization's priorities-as well as government-wide priorities such as
quality, timeliness, and cost of service-are addressed. \16\
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\16\ See GAO, Tax Administration: IRS Needs to Further Refine Its
Tax Filing Season Performance Measures, GAO 03 143 (Washington, D.C.:
Nov. 22, 2002). In addition, the Act requires VA's plan to contain
goals and related measures that can be used to manage and assess
implementation of VA's new appeals process, and key goals and
milestones for reducing the number of pending appeals under the legacy
process.
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VA's appeals plan reports that the agency convened a working group
to design a process for tracking timeliness of both the legacy appeals
and appeals within the new process. In supporting documentation that we
requested, VA officials stated they are also determining the best way
to measure veterans' satisfaction with the new appeals process. VA's
appeals plan and supporting documentation also identify timeliness
goals for the two VBA-only options and one of the three Board options.
Nevertheless, its appeals plan does not articulate a set of goals and
measures that cover all aspects of its new appeals process, such as
accuracy of decisions and cost. The plan also does not provide details
on the metrics the agency will develop, how it will assess if the new
appeals process is an improvement over the legacy appeals process, and
how it will monitor the allocation of resources between legacy and new
appeals claims. More specifically:
VA's reported timeliness measures are incomplete: VA's
appeals plan outlines timeliness goals for the two VBA options (average
processing time of 125 days) and for the Board option that does not
include new evidence or a hearing (average processing time of 365
days). \17\ However, VA's plan does not establish timeliness goals for
the other two Board options: Board review of additional evidence
without a hearing and Board review of additional evidence with a
hearing. In commenting on our assessment, while VA officials indicated
they expect the new process to be more efficient than the legacy
process (and, therefore, more timely), data to inform goal setting for
all Board options will not be available until VA fully implements these
options. However, establishing timeliness goals for all options would
provide a more complete picture of VA's vision for the new appeals
process, and help VA to develop concrete, objective, and observable
performance measures to show progress in achieving that vision, as well
as inform resource estimates.
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\17\ In supporting documentation, VA indicated that it will measure
average veteran wait times in the new appeals system as one indicator
of success. For example, an average processing time of 365 days will be
the timeliness goal for the option in which the Board reviews the
existing record without a hearing. VA indicated it would develop
measures and determine appropriate resource allocation for the other
options in the future.
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VA's reported measures lack adequate balance: Other than
including certain timeliness goals, VA's appeals plan does not
articulate additional aspects of performance important for managing
appeals, such as accuracy of decisions, veteran satisfaction with the
process, or cost. We previously reported that VA officials said that
they wanted to also use veteran survey results, wait times, and
inventories as sources of information to measure progress under the new
appeals process. \18\ Further, VA's fiscal year 2018 annual performance
plan includes an overall customer satisfaction score for veterans'
benefits. \19\ However, these and other potential measures of success
are not specified in VA's appeals plan for monitoring the new appeals
process as compared with legacy appeals. By not articulating a set of
comprehensive and balanced goals and measures in its appeals plan, VA
could be inadvertently creating skewed incentives by focusing on one
area of program performance to the detriment of other areas (e.g.,
processing claims quickly but inaccurately).
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\18\ 18 GAO 17 234.
\19\ Specifically, VA's Voice of the Veteran Customer Satisfaction
Survey tracks veterans' and their beneficiaries' overall satisfaction
on a 1,000-point scale.
In commenting on our assessment, VA officials recognized the need
to develop additional goals and measures and indicated, for example,
that they are developing and testing whether the existing quality
assurance goal-requiring 92 percent accuracy-is appropriate for the new
process. According to VA officials, once they have developed these
other goals and measures, VA will communicate this information as part
of the required progress reports to the appropriate committees of
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Congress and GAO.
VA's plan does not reflect how it will establish baseline
data: VA's approach for evaluating the efficiency and effectiveness of
the implementation of the new appeals process falls short of sound
practices for using baseline data to assess performance. Our prior work
has demonstrated that by tracking and developing a performance baseline
for all measures, including those that demonstrate the effectiveness of
a program, agencies can better evaluate progress made and whether or
not goals are being achieved. \20\ However, VA's appeals plan did not
provide important details about what aspects of the new appeals
process' performance will be compared to what aspects of the legacy
process' performance.
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\20\ Baseline and trend data can also be used to inform and refine
performance goals, according to our prior work. See GAO, Agency
Performance Plans: Examples of Practices That Can Improve Usefulness to
Decisionmakers, GAO/GGD/AIMD 99 69 (Washington, D.C.: Feb. 26, 1999).
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In particular, section 5 of the Act lists a number of metrics VA is
required to report periodically, including some that could be used as
baseline measures. \21\ For example, VA is required to periodically
publish on its website the average time that elapsed between the filing
of an initial claim and the final resolution of the claim, for legacy
appeals as well as appeals under the new system, which is consistent
with our prior recommendation. \22\ However, VA's appeals plan does not
explain how or when the agency would collect and use these or other
data about the legacy and new processes' performance-such as accuracy,
veteran satisfaction, and cost-to assess their relative performance.
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\21\ Pub. L. No. 115-55, Sec. 5, 131 Stat. 1105, 1123 (2017).
\22\ We previously recommended that VA develop a strategy for
assessing process reform-relative to the current process-that ensures
transparency on the extent to which VA is improving veterans'
experiences with its disability appeals process. This includes
measuring the average time to reach final resolution of veterans'
appeals and reflects the fact that veterans may file multiple appeals
under the new appeals process before achieving resolution of their
claims. GAO 17 234.
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As we had previously reported, VA's business case for reform in
some instances relied on unproven assumptions and limited analyses of
its legacy process to identify root causes of performance problems.
\23\ Specifically, VA determined that the open-ended nature of its
legacy appeals process, whereby a veteran can submit additional
evidence numerous times at any point during the VA appeals process, can
cause additional cycles of re-adjudication, a process VA refers to as
``churning.'' According to VA, this re-adjudication can occur multiple
times and can add years to the time needed to reach a final decision on
an appeal. Without fully articulating a plan for collecting and using
baseline and trend data, VA cannot determine the extent to which the
new appeals process, which also allows for multiple appeal
opportunities, will achieve final resolution of veterans' appeals
sooner, on average, than the legacy process.
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\23\ See GAO 17 234.
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In commenting on our assessment, VA indicated that it is working
toward capturing the metrics listed in section 5 of the Act. VA
officials also noted that reporting on the new appeals process will
require IT system functionality that currently does not exist, but
stated that efforts are underway to add this functionality.
VA's plan does not explain how the agency will monitor
processing of legacy versus new appeals: In addition, VA's appeals plan
does not fully articulate how the agency will monitor whether resources
are being appropriately devoted to both the new and legacy appeals
process and how it will track both sets of workloads. \24\ An appeals
plan that does not specifically articulate how VA will manage the two
processes in parallel exposes the agency to risk that veterans with
appeals in the legacy process may experience significant delays or
otherwise poor results relative to those in the new appeals process or
vice versa. In commenting on our assessment, VA officials noted that VA
was not required under section 3 of the Act to provide a description of
its plans to capture metrics listed in section 5. Even if not required
by the Act, developing an approach for carefully monitoring the
management of new and legacy appeals would help VA track progress being
made and achievement of goals.
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\24\ As noted earlier, we also determined that VA's appeals plan
does not contain sufficient details about metrics and goals related to
identifying potential issues related to implementing the new appeals
system, and therefore only partially addresses the required element at
section 3(a)(4) of the Act.
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Until VA establishes complete and balanced goals and measures,
identifies baseline data, and develops a plan for monitoring and
assessing both the new and legacy processes, VA runs the risk of
promoting skewed behaviors, or not fully understanding whether the new
process is an improvement or whether veterans with appeals in the
legacy process are experiencing poor results.
VA's Appeals Plan Needs a Reliable Implementation Schedule to Manage
the Project
VA's appeals plan reflects certain aspects of sound planning
practices related to managing the implementation of process change;
however, other key components are not addressed. Sound planning
practices for implementing process change suggest establishing a
transition team. \25\ Consistent with such practices, VA's appeals plan
states that the agency convened an agency-wide governance structure to
coordinate implementation of its new appeals process; it is comprised
of senior-level employees with authority to make necessary decisions to
keep the project on track. VA's appeals plan also includes a copy of a
master schedule. In its plan, VA asserts that the master schedule
reflects timelines, interim goals and milestones, reporting
requirements, and established deadlines, and that it will be used to
guide implementation. VA's appeals plan also reports that VA is
consulting with project management professionals, who are using the
master schedule, among other tools, to monitor implementation. In
addition, VA made progress addressing some of the issues we previously
identified by developing steps and timetables for updating training in
anticipation of implementing the new appeals process. \26\
---------------------------------------------------------------------------
\25\ GAO, Business Process Reengineering Assessment Guide-Version
3, GAO/AIMD 10.1.15 (Washington, D.C. May 1997). In this testimony, we
refer to reengineering as appeals process ``redesign.''
\26\ See GAO 17 234.
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However, VA's master schedule for implementing reform is missing
elements of a high-quality and reliable implementation schedule for key
activities. We have previously reported that having a well-planned
schedule is a fundamental management tool. Generally recognized sound
practices from the Project Management Institute (PMI) and GAO call for
organizations to employ an integrated and reliable master schedule that
defines when work activities will occur, who will complete the work,
how long they will take, how they are related to one another, and the
constraints affecting the start and completion of work elements, as
well as whether resources will be available when they are needed. \27\
Such a project management schedule not only provides a road map for
systematic project execution, but also provides the means by which to
gauge progress, identify and address potential problems, and promote
accountability.
---------------------------------------------------------------------------
\27\ Project Management Institute, Inc., A Guide to the Project
Management Body of Knowledge (PMBOK Guide); GAO, GAO Schedule
Assessment Guide: Best Practices for Project Schedules, GAO 16 89G
(Washington, D.C.: December 2015); and, GAO Cost Estimating and
Assessment Guide: Best Practices for Developing and Managing Capital
Program Costs, GAO 09 3SP (Washington, D.C.: March 2009).
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The master schedule VA provided in its appeals plan should have
included other sound practices for project management related to a
reliable schedule. Specifically:
Key activities and their duration are not included: VA's
master schedule does not capture the Rapid Appeals Modernization
Program (RAMP) activities, even though this pilot test is occurring at
the same time VA is preparing for full implementation of appeals
options at VBA and the Board. In addition, specific Board-related
activities are missing from the schedule, such as efforts to develop
metrics, and the schedule and other project plans we reviewed do not go
beyond February 2019. For example, the schedule does not indicate the
period of time when VA expects to no longer be processing legacy
appeals. \28\ When all key and necessary activities are not included,
it raises questions about whether all activities are scheduled in the
correct order, resources are properly allocated, or the estimated
completion dates are reliable. \29\ In addition, if the schedule does
not fully and accurately reflect VA's efforts, it will not serve as an
appropriate basis for analysis and may result in unreliable completion
dates and delays.
---------------------------------------------------------------------------
\28\ Sound practices suggest that the schedule should reflect the
duration of each activity and have specific start and end dates.
\29\ In addition, if some necessary activities are missing from an
agency's implementation schedule, it is much more difficult for the
agency to adhere to other best practices. Our prior work has identified
10 practices associated with developing and maintaining a reliable
schedule. These practices are (1) capturing all activities, (2)
sequencing all activities, (3) assigning resources to all activities,
(4) establishing the duration of all activities, (5) integrating
schedule activities horizontally and vertically, (6) establishing the
critical path for activities, (7) identifying float between activities,
(8) conducting a schedule risk analysis, and (9) updating the schedule
using actual progress and logic, and (10) maintaining a baseline
schedule. Float is the amount of time an activity can slip before
affecting the critical path. The critical path is the longest path
through the schedule. If an activity on the critical path slips, the
entire project will be delayed. See GAO 16 89G.
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Sequencing and linkages among activities are not
identified: For the high-level activities VA's appeals plan identifies,
VA's master schedule does not indicate whether there were linkages or
sequencing among them, which is not consistent with sound scheduling
practices. Linkages and sequencing would show, for example, if any of
these activities or sub-activities must finish prior to the start of
other activities, or the amount of time an activity could be delayed
before the delay affects VA's estimated implementation date. \30\ For
example, VA cannot train new employees until after it hires them.
---------------------------------------------------------------------------
\30\ GAO 16 89G.
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The activities VA identifies also do not appear supported by lower-
level project schedules. Specifically, when we requested documentation
to support VA's high-level summary of activities and milestones, VA
officials did not provide intermediate or more detailed schedules that
reflected these practices. In particular, VA's appeals plan lacks a
complete schedule for IT modifications that clearly defines what is to
be achieved and the time frames for achievement. \31\ We previously
recommended that VA develop a schedule for IT updates that explicitly
addresses when and how process reform will be integrated into new
systems and when these systems will be ready to support the new appeals
process at its onset. \32\ For example, VA's appeals plan references
several required IT modifications that do not appear in its master
schedule. \33\ Schedules that are defined at too high a level may
disguise risk that is inherent in lower-level activities. \34\
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\31\ Federal internal control standards state that program managers
should define objectives clearly to enable the identification of risks
that may impede the achievement of program objectives. This includes
clearly defining what is to be achieved and the time frames for
achievement. See GAO 14 704G. Additionally, IT investment best
practices stress the need for oversight regarding a project's progress
toward predefined schedule expectations. See GAO 04 394G.
\32\ GAO 17 234.
\33\ VA's master schedule lists three IT requirements; however,
VA's appeals plan references several other requirements not included in
the master schedule: eFolder; Caseflow Work Queue, Caseflow Hearings
Scheduling, and Reporting Functionality. In supplementary materials, VA
provided an IT ``road map'' that lists nine IT requirements; however,
several of these requirements (e.g., Caseflow Dispatch) do not appear
in either VA's appeals plan or master schedule. In addition the ``road
map'' reflects 6 months of planning and does not extend to or beyond
the end dates reflected in VA's master schedule.
\34\ GAO 16 89G.
Interim goals are not reflected: VA officials stated that
they have interim goals and milestones, though VA's appeals plan and
supporting documentation generally do not include this information.
Sound planning and redesign practices suggest closely monitoring
implementation and developing project goals that include a mix of
intermediate goals to be met at various stages. VA's appeals plan does
not include this information. We previously made a recommendation that
VA develop a more robust plan for closely monitoring implementation of
process reform, including metrics and interim goals to help track
progress, evaluate efficiency and effectiveness, and identify trouble
spots-all of which are consistent with sound planning practices. \35\
---------------------------------------------------------------------------
\35\ GAO 17 234.
---------------------------------------------------------------------------
Resources are not assigned to all identified activities:
The high-level summary schedule that VA provided us also lacks details
regarding the assignment of resources for all activities. Specifically,
while the plan identifies workgroups responsible for coordinating
elements in the plan, such as regulations, training, and outreach, the
schedule does not assign resources to the 40 listed activities. As
discussed previously, VA's appeals plan also does not provide
information on the total resources required for this reform effort.
Assigning resources to the listed activities, as well as providing
other information, could provide a better indication of the estimated
total resources required to implement the new appeals process and
address legacy appeals.
In commenting on our assessment, VA officials stated that the
agency is developing lower-level project schedules for key activities-
such as RAMP and IT requirements-and will provide these schedules as
part of the required progress reports to the appropriate committees of
Congress and GAO. VA officials also noted that future updates will
include additional dependencies and risks, which VBA and the Board are
still developing. Until VA has a robust integrated master schedule,
supported by detailed project plans that adhere to sound practices,
VA's appeals plan does not provide reasonable assurance that decision
makers have the essential program management information needed for
this complex and important effort.
VA's Plan Addresses Some but Not All Key Risks Related to the New
Appeals Process
VA's appeals plan includes an assessment of risks involved in
implementing the new appeals system, but could more comprehensively
reflect key risks posed by such a significant reform effort. \36\ VA's
appeals plan and supplementary materials include a ``risk register''
that describes risks associated with many elements of its plan and the
remaining level of risk after its planned response to these risks. VA's
appeals plan also states that senior leaders will receive regular
updates of risks and mitigation strategies. However, because VA has not
yet articulated a balanced set of performance goals and measures in its
appeals plan, it is hindered in its ability to identify and assess
risks.
---------------------------------------------------------------------------
\36\ A risk assessment is the identification and analysis of risks
related to achieving the defined objectives. This assessment provides
the basis for developing appropriate risk responses. GAO, Standards for
Internal Control in the Federal Government, GAO 14 704G (Washington,
D.C.: September 2014).
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Federal internal control standards state, and our previous work at
VA and other agencies demonstrates, that establishing clear performance
goals and objectives is a necessary pre-condition to effectively
assessing risk. \37\ Having, for example, more complete timeliness
goals, and goals and measures reflecting other areas of performance,
would allow VA to better identify and target risks associated with
managing two processes in parallel, including the potential that
veterans with appeals in the legacy process may experience significant
delays relative to those in the new appeals process.
---------------------------------------------------------------------------
\37\ GAO 14 704G. See the following reports for examples of
agencies that did not have measureable performance goals to assess and
mitigate risks: GAO, Veterans Justice Outreach Program: VA Could
Improve Management by Establishing Performance Measures and Fully
Assessing Risks, GAO 16 393 (Washington, D.C.: Apr. 28, 2016; and GAO,
Telecommunications Relay Service: FCC Should Strengthen Its Management
of Program to Assist Persons with Hearing or Speech Disabilities, GAO
15 409 (Washington, D.C.: Apr. 29, 2015).
---------------------------------------------------------------------------
Importantly, VA is missing an opportunity to fully benefit from
RAMP by not testing and assessing other aspects of the new appeals
process. The Act authorizes VA to test the feasibility and advisability
of any facet of the new appeals process, and VA is taking a positive
step to mitigate some risks by testing the two review options available
within VBA (review of a claim by a higher-level official based on the
same evidence and review of a supplemental claim with additional
evidence) through RAMP. In November 2017, VA began RAMP by inviting 500
veterans whose appeals have been pending the longest to participate.
According to VA officials, each month VA plans to continue offering
RAMP to additional eligible veterans with pending legacy appeals until
January 2019-a month before VA anticipates fully implementing the new
appeals system. However, as designed, RAMP does not include features
that-consistent with a well-developed and documented pilot test
program-would provide VA with an opportunity to evaluate fully the
soundness of new processes and practices on a smaller scale. \38\
Specifically:
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\38\ GAO, Business Process Reengineering Assessment Guide, GAO/AIMD
10.1.15 (Washington, D.C.: May 1997) and GAO, Data Act: Section 5 Pilot
Design Issues Need to Be Addressed to Meet Goal of Reducing Recipient
Reporting Burden, GAO 16 438 (Washington, D.C.: Apr. 19, 2016).
VA's plan does not clearly define success criteria for
RAMP: VA's appeals plan states that the agency will collect certain
data from RAMP, such as the rate at which eligible veterans opt into
the process, timeliness of claims processing, and individual employee
productivity. VA also established an overall average processing time
goal of 125 days for the two VBA options; however, the plan and
supporting documentation do not clearly articulate whether RAMP reviews
are expected to meet this timeliness goal. The plan also did not
identify other success criteria for RAMP or the types of results
expected before fully implementing the new appeals process. For
example, VA's plan does not articulate the expected number and type of
subsequent appeals to the Board that result from RAMP.
In commenting on this assessment, VA noted that its intent in
implementing RAMP was to collect data and test aspects of the new
process, and that RAMP was not an initiative in and of itself. However,
developing performance measures and data gathering procedures and
defining success criteria for a pilot test before proceeding to full
implementation are sound practices for process redesign and pilot
testing. In addition, because RAMP was not included in VA's risk
assessment, we asked VA if it had identified any risks or mitigation
strategies specific to RAMP. In its supplemental materials, VA stated
that the greatest risk to RAMP is a low participation rate among
eligible veterans with legacy claims. VA also indicated that it would
need 10 percent of eligible veterans to opt into RAMP to yield
meaningful results. However, this threshold is not articulated in VA's
appeals plan as an explicit success criterion or objective. According
to data provided by VA, as of January 22, 2018, 238 veterans opted in.
\39\ Of veterans with pending claims in RAMP, two-thirds chose the
higher-level review option. VA also reported that 47 RAMP decisions
have been made so far. As of yet, no appeals of RAMP decisions have
been filed.
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\39\ According to VA, as of January 22, 2018, RAMP invitations were
sent to 15,500 veterans via three separate mailings-500 in November
2017, 5,000 in December 2017, and 10,000 in January 2018. As of January
22, 2018, VA reported that the opt-in rate was about 3 percent for the
November and December mailing, and 1 percent for January.
VA's plan does not articulate how it will assess RAMP
before proceeding with full implementation: Although VA's appeals plan
describes a ``close-out'' phase in which VA intends to assess the
results of RAMP, it does not detail the conditions that would have to
be met (or not met) to trigger changes. For example, VA's plan does not
explain when or how it might respond to low opt-in rates for RAMP-other
than stating it will increase outreach to eligible veterans-or to
unexpectedly high appeal rates to the Board resulting from RAMP
decisions. Sound redesign and change management practices both suggest
that pilot tests be rigorously monitored and evaluated, and that
further roll-out occur only after an agency's transition team takes any
needed corrective action and determines that the new process is
achieving previously identified success criteria. Without fully
articulating its plan for deciding how and when to roll out changes
more broadly, it is not clear whether VA would be prepared to fully
implement a new appeals process that achieves its aim of better serving
veterans.
RAMP does not test all aspects of the new appeals
process: RAMP provides an opportunity to learn about experiences at VBA
under the new system, such as the rate at which eligible veterans
choose those options and the resources that will be required to process
their appeals. However, RAMP was not designed to test how many veterans
would choose to appeal directly to the Board and, therefore, it will
not provide comparable information on the Board appeals options. Sound
workforce planning practices suggest that agencies identify the total
resources needed to manage the risk of implementing new processes and
conduct scenario planning to determine those needs. \40\
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\40\ GAO 09 3SP.
In addition, although we previously recommended VA conduct
additional sensitivity analyses to inform projections of future appeals
inventories, \41\ VA's appeals plan does not reflect VA's use or
intended use of sensitivity analyses when projecting staffing needs for
new appeals options at the Board. \42\ In commenting on our assessment,
VA officials said they do not plan to conduct additional sensitivity
analyses to project future workloads until they have more information
from RAMP to inform their assumptions. As a result, VA will lack data
on scenarios in which veterans may overwhelmingly choose options
available at the Board over those at VBA when the appeals plan is fully
implemented. This presents a risk that VA's early production
projections and initial resource allocations may not be properly
balanced between the Board and VBA. This, in turn, may result in an
unexpectedly large number of appeals pending with the Board, and
corresponding lengthy average wait and decision times for some, if not
all, Board options.
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\41\ GAO 17 234. Sensitivity analysis-used in scenario planning to,
for example, determine the resources needed for implementing a new
process-is an analysis to determine how sensitive outcomes are to
changes in assumptions, such as those used to determine resource needs.
The assumptions that deserve the most attention should depend on the
dominant benefit and cost elements and the areas of greatest
uncertainty of the program or process being analyzed. See GAO 09 3SP.
\42\ As noted previously, we determined that VA's plan does not
estimate personnel required by either VBA or the Board for the period
when they are not processing legacy appeals. Sensitivity analyses could
aid VA in forecasting such resources.
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Having information on the number of veterans who are likely to
appeal to the Board is particularly critical, given that similar
efforts to create additional review options at VBA did not achieve
their goals of reducing the percentage of appeals that continue on to
the Board. In 2001, VA established the Decision Review Officer (DRO)
process-in which senior staff have the authority to overturn an initial
disability claim decision without any new evidence-to resolve more
appeals at the regional level and avoid long waits at the Board.
However, we reported in 2011 that, although the DRO process helped some
veterans get additional benefits at the regional office level, it did
not accomplish the program's primary goal of reducing the percentage of
appeals continuing on to the Board. \43\
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\43\ GAO, Veterans Disability Benefits: Clearer Information for
Veterans and Additional Performance Measures Could Improve Appeal
Process, GAO-11-812 (Washington, D.C.: Sept. 29, 2011).
---------------------------------------------------------------------------
In responding to our assessment, VA officials reiterated their
plans to increase outreach in the event of low opt-in rates for RAMP
and indicated they recently began to send follow-up RAMP invitation
letters. With respect to assessing all appeal options, VA officials
stated that, while no legal bar prevents testing of the Board options,
the Board is focused on reducing its inventory of pending appeals while
RAMP provides early resolution of appeals within the new VBA-only
options. Officials conceded that this approach means they cannot
collect data on the rate at which veterans opt to appeal directly to
the Board (e.g., bypassing additional VBA review) until the new process
is fully implemented. However, they noted that they can collect some
data on the rate at which veterans whose appeals go through RAMP file
subsequent appeals to the Board, even though the Board will not begin
processing those appeals until full implementation.
By pursuing an approach that does not identify or mitigate
significant risks associated with implementing a new process, VA is
taking a chance that untested aspects will not perform as desired. The
Act provides VA authority to pilot aspects of the process and
flexibility on the timing of implementing the new process, which could
allow some additional time for VA to carefully measure performance
under RAMP and determine whether any corrective actions are necessary.
If VA does not take full advantage of this authority, it risks moving
forward without knowing whether the new appeals process improves
experiences for veterans, and potentially implementing a process that
is more expensive or results in longer wait times than originally
anticipated.
In conclusion, in implementing appeals reform after the enactment
of the Veterans Appeals Improvement and Modernization Act of 2017, VA
is undertaking a complex endeavor that has the potential to affect the
lives of hundreds of thousands of veterans with service-connected
disabilities. Such an endeavor demands a commensurate level of planning
to be successful. While the Act required VA to submit its plan within
90 days of enactment, VA had proposed and began to plan for appeals
reform much earlier, and had our March 2017 recommendations to guide
its planning efforts from a foundation of sound practices.
VA's November 2017 appeals plan is a positive step forward. Certain
elements of the plan-such as establishing an agency-wide governance
structure to oversee implementation and testing aspects of reform prior
to full implementation-are notable gains since our March 2017 report.
At the same time, the plan partially addresses or does not address five
of the required elements called for by the Act, such as delineating the
total resources required by VBA and the Board to implement and
administer the new appeals process and address legacy appeals. The plan
also is not fully responsive to our past recommendations and does not
reflect a number of sound planning practices that are essential for
gauging progress, establishing accountability, and linking resources to
results.
One such key practice is articulating a desired ``end state''-a
vision for what successful implementation would look like for the new
appeals process as well as the wind-down of the legacy process, such as
accurate and timely processing of appeals while ensuring veteran
satisfaction. Without establishing a complete and balanced set of goals
and related performance measures to achieve this end state and
monitoring and assessing progress along the way, VA risks falling short
of its overarching objective-to improve timeliness of appeals decisions
for veterans overall. By not fully articulating how it plans to monitor
workloads and devote resources to both the new and legacy processes, VA
runs the risk of disadvantaging veterans with legacy appeals relative
to those in the new process, or vice versa.
Just as important is establishing a robust integrated master
schedule-rather than a high-level timeline-that is built upon and
clearly reflects extensive detailed planning and includes all of the
activities necessary to execute the program and interdependencies
between these activities. Without such a road map, VA's appeals plan
does not provide reasonable assurance that decision makers have the
essential information needed to manage this complex and important
program.
We are encouraged that VA has taken some steps toward assessing
risks, including establishing a risk register and implementing RAMP to
collect information on the two VBA appeals options; however, unless VA
assesses risks against a balanced set of goals and measures, VA may not
be fully aware of risks that may impede successful implementation of
appeals reform. Further, although VA will undoubtedly learn from the
RAMP experience, it may not learn all that it should from its efforts
without (1) establishing clear criteria for what success looks like (or
the circumstances that would cause VA to consider making course
corrections) and (2) building in time to take stock of the lessons
learned before moving to full implementation.
VA's plan places a lot of weight on RAMP to, among other efforts,
mitigate risk and generate estimates of the resources needed for
successful implementation after fiscal year 2018, even though RAMP does
not fully test options for appealing to the Board that will be
available to veterans after full implementation. Unless VA addresses
key risks associated with fully implementing appeals reform-by either
testing or conducting sensitivity analyses for all five appeals
options, to better understand potential workloads at the Board-VA runs
the risk of fully implementing the process without knowing if it is
improving the process for veterans.
In our forthcoming report, we anticipate making recommendations to
address these issues. Specifically, we are preliminarily considering
recommending that the Secretary of Veterans Affairs:
address all of the required elements in the Act in VA's
appeals plan to Congress-including delineating resources required for
all VBA and Board appeals options-using sensitivity analyses and RAMP
results, where appropriate and needed.
clearly articulate in VA's appeals plan how VA will
monitor and assess the new appeals process compared to the legacy
process, including specifying a balanced set of goals and measures-such
as timeliness goals for all VBA appeals options and Board dockets, and
measures of accuracy, veteran satisfaction, and cost-and related
baseline data.
augment the master schedule for VA's appeals plan to
reflect all activities-such as RAMP and modifications to IT systems-as
well as assigned responsibilities, interdependencies, start and end
dates for key activities for each workgroup, and resources, to
establish accountability and reduce overall risk of implementation
failures.
ensure that the appeals plan more fully addresses risk
associated with appeals reform-for example, by assessing risks against
a balanced set of goals and measures, articulating success criteria and
an assessment plan for RAMP, and testing or conducting sensitivity
analyses of all appeal options-prior to fully implementing the new
appeals process.
Chairman Roe, Ranking Member Walz, and Members of the Committee,
this concludes my prepared statement. I would be pleased to respond to
any questions that you may have at this time.
GAO Contact and Staff Acknowledgments
For further information about this testimony, please contact
Elizabeth Curda at (202) 512-7215 or curdae@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this testimony. Other key contributors to this
testimony include Michele Grgich (Assistant Director), James Whitcomb
(Analyst in Charge), and Rachael Chamberlin. In addition, key support
was provided by Susan Aschoff, Mark Bird, David Chrisinger, Daniel
Concepcion, Clifton Douglas, Alex Galuten, Nisha Hazra, Melissa Jaynes,
Benjamin Licht, Patricia McClure, Sheila McCoy, Lorin Obler, Gloria
Proa, Almeta Spencer, James Sweetman, Walter Vance, and Greg Whitney.
Appendix I: Our Assessment of VA's Appeals Plan Against Required
Elements in the Act
To assess the extent to which VA's appeals plan addresses the
required elements in the Veterans Appeals Improvement and Modernization
Act of 2017 (the Act), we first identified and developed a checklist
reflecting each required element for VA's appeals plan (including sub-
parts) under section 3(a) and (b) of the Act. To compare the required
elements and their sub-parts against VA's appeals plan and supplemental
materials provided, we developed decision rules for determining whether
the VA's appeals plan addressed, partially addressed, or did not
address each required element. Specifically, we concluded that VA's
plan addressed (or partially addressed) a required element if the plan
included information related to all (or some) subparts of the
requirement. We focused on the plan as presented, rather than auditing
the information VA relied on in developing the plan. For example, the
Act's section 3(b)(10) required VA's plan to include a description of
the modifications to the IT systems that VBA and the Board require to
carry out the new appeals system, including cost estimates and a
timeline for making the IT modifications. We concluded that VA's plan
addressed all sub-parts of this element because it provided a
description of required IT modifications, a reference to costs included
in the Appeals Modernization IT budget, and a timeline. However, our
determination that VA addressed this element should not be construed to
necessarily mean that VA fully identified or described all IT
requirements, or provided complete estimated costs and timelines
associated with those requirements, or that the information in VA's
appeals plan comported with sound planning practices. This type of
assessment was outside the scope of this objective. Table 2 summarizes
our assessment of VA's appeals plan against the 22 required elements in
the Act.
Table 2: Summary of GAO's Assessment of VA's Appeals Plan Against the Required Elements in the Veterans Appeals
Improvement and Modernization Act of 2017 (Act)
----------------------------------------------------------------------------------------------------------------
Required elements of plan (from sec. 3(a) and (b) of the Act) Summary of GAO's assessment
----------------------------------------------------------------------------------------------------------------
Section 3(a)(1) Addressed
[A comprehensive plan for] the processing of appeals of decisions on
legacy claims that the Secretary considers pending.
----------------------------------------------------------------------------------------------------------------
Section 3(a)(2) Addressed
[A comprehensive plan for] implementing the new appeals system.
----------------------------------------------------------------------------------------------------------------
Section 3(a)(3) Addressed
[A comprehensive plan for] timely processing, under the new appeals
system, of-
(A) supplemental claims under section 5108 of title 38, United States
Code, as amended by section 2(i);
(B) requests for higher-level review under section 5104B of such title,
as added by section 2(g); and
(C) appeals on any docket maintained under section 7107 of such title,
as amended by section 2(t).
----------------------------------------------------------------------------------------------------------------
Section 3(a)(4) Partially addressed
[A comprehensive plan for] monitoring the implementation of the new
appeals system, including metrics and goals-
(A) to track the progress of implementation;
(B) to evaluate the efficiency and effectiveness of the implementation;
and
(C) to identify potential issues relating to the implementation.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(1) Not addressed
Delineation of the total resource requirements of the Veterans Benefits
Administration and the Board of Veterans' Appeals, disaggregated by
resources required to implement and administer the new appeals system
and resources required to address the appeals of decisions on legacy
claims.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(2) Partiallly addressed
Delineation of the personnel requirements of the Administration and the
Board, including staffing levels during the-
(A) period in which the Administration and the Board are concurrently
processing-
(i) appeals of decisions on legacy claims; and
(ii) appeals of decisions on non-legacy claims under the new appeals
system; and
(B) the period during which the Administration and the Board are no
longer processing any appeals of decisions on legacy claims.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(3) Addressed
Identification of the legal authorities under which the Administration
or the Board may-
(A) hire additional employees to conduct the concurrent processing
described in paragraph (2)(A); and
(B) remove employees who are no longer required by the Administration or
the Board once the Administration and the Board are no longer
processing any appeals of decisions on legacy claims.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(4) Addressed
An estimate of the amount of time the Administration and the Board will
require to hire additional employees as described in paragraph (3)(A)
once funding has been made available for such purpose, including a
comparison of such estimate and the historical average time required by
the Administration and the Board to hire additional employees.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(5) Addressed
A description of the amount of training and experience that will be
required of individuals conducting higher-level reviews under section
5104B of title 38, United States Code, as added by section 2(g).
----------------------------------------------------------------------------------------------------------------
Section 3(b)(6) Addressed
An estimate of the percentage of higher-level adjudicators who will be
employees of the Department of Veterans Affairs who were Decision
Review Officers on the day before the new appeals system takes effect
or had experience, as of such date, comparable to that of one who was a
Decision Review Officer.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(7) Addressed
A description of the functions that will be performed after the date on
which the new appeals system takes effect by Decision Review Officers
who were Decision Review Officers on the day before the date the new
appeals system takes effect.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(8) Addressed
Identification of and a timeline for-
(A) any training that may be required as a result of hiring new
employees to carry out the new appeals system or to process appeals of
decisions on legacy claims; and
(B) any retraining of existing employees that may be required to carry
out such system or to process such claims.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(9) Addressed
Identification of the costs to the Department of Veterans Affairs of the
training identified under paragraph (8) and any additional training
staff and any additional training facilities that will be required to
provide such training.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(10) Addressed
A description of the modifications to the information technology systems
of the Administration and the Board that the Administration and the
Board require to carry out the new appeals system, including cost
estimates and a timeline for making the modifications.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(11) Addressed
An estimate of the office space the Administration and the Board will
require during each of the periods described in paragraph (2),
including-
(A) an estimate of the amount of time the Administration and the Board
will require to acquire any additional office space to carry out
processing of appeals of decisions on legacy claims and processing of
appeals under the new appeals system;
(B) a comparison of the estimate under subparagraph (A) and the
historical average time required by the Administration and the Board to
acquire new office space; and
(C) a plan for using telework to accommodate staff exceeding available
office space, including how the Administration and the Board will
provide training and oversight with respect to such teleworking.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(12) Partially addressed
Projections for the productivity of individual employees at the
Administration and the Board in carrying out tasks relating to the
processing of appeals of decisions on legacy claims and appeals under
the new appeals system, taking into account the experience level of new
employees and the enhanced notice requirements under section 5104(b) of
title 38, United States Code, as amended by section 2(e).
----------------------------------------------------------------------------------------------------------------
Section 3(b)(13) Addressed
An outline of the outreach the Secretary expects to conduct to inform
veterans, families of veterans, survivors of veterans, veterans service
organizations, military service organizations, congressional
caseworkers, advocates for veterans, and such other stakeholders as the
Secretary considers appropriate about the new appeals system, including-
(A) a description of the resources required to conduct such outreach;
and
(B) timelines for conducting such outreach.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(14) Addressed
Timelines for updating any policy guidance, Internet websites, and
official forms that may be necessary to carry out the new appeals
system, including-
(A) identification of which offices and entities will be involved in
efforts relating to such updating; and
(B) historical information about how long similar update efforts have
taken.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(15) Addressed
A timeline, including interim milestones, for promulgating such
regulations as may be necessary to carry out the new appeals system and
a comparison with historical averages for time required to promulgate
regulations of similar complexity and scope.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(16) Addressed
An outline of the circumstances under which claimants with pending
appeals of decisions on legacy claims would be authorized to have their
appeals reviewed under the new appeals system.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(17) Partially addressed
A delineation of the key goals and milestones for reducing the number of
pending appeals that are not processed under the new appeals system,
including the expected number of appeals, remands, and hearing requests
at the Administration and the Board each year, beginning with the one
year period beginning on the date of the enactment of this Act, until
there are no longer any appeals pending before the Administration or
the Board for a decision on a legacy claim.
----------------------------------------------------------------------------------------------------------------
Section 3(b)(18) Addressed
A description of each risk factor associated with each element of the
plan and a contingency plan to minimize each such risk.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of VA's November 2017 appeals plan and any supporting documents VA provided on or before
January 18, 2018, the Veterans Appeals Improvement and Modernization Act of 2017, and agency input by VA. /
GAO 18 349T
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ATTACHMENT
GAO HIGHLIGHTS
Highlights of GAO-18-349T, a testimony before the Committee on
Veterans' Affairs, House of Representatives
Why GAO Did This Study
VA's disability compensation program pays cash benefits to veterans
with disabilities connected to their military service. In recent years,
the number of appeals of VA's benefit decisions has been rising. For
decisions made on appeal in fiscal year 2017, veterans waited an
average of 3 years for resolution by either VBA or the Board, and 7
years for resolution by the Board. The Veterans Appeals Improvement and
Modernization Act of 2017 makes changes to VA's current (legacy)
appeals process, giving veterans new options to have their claims
further reviewed by VBA or appeal directly to the Board. The Act
requires VA to submit to Congress and GAO a plan for implementing a new
appeals process, and includes a provision for GAO to assess VA's plan.
This testimony focuses on the extent to which VA's plan: (1)
addresses the required elements in the Act, and (2) reflects sound
planning practices identified in prior GAO work. GAO's work entailed
reviewing and assessing VA's appeals plan and related documents against
sound planning practices, and soliciting VA's views on GAO's
assessments.
What GAO Recommends
In its forthcoming report, GAO is considering recommending that VA:
fully address all legally required elements in its appeals plan,
articulate how it will monitor and assess the new appeals process as
compared to the legacy process, augment its master schedule for
implementation, and more fully address risk.
View GAO-18-349T. For more information, contact Elizabeth Curda at
(202) 512-7215 or curdae@gao.gov.
VA DISABILITY BENEFITS
Opportunities Exist to Better Ensure Successful Appeals Reform
What GAO Found
The Department of Veterans Affairs' (VA) plan for implementing a
new disability appeals process while attending to appeals in the
current process addresses most, but not all, elements required by the
Veterans Appeals Improvement and Modernization Act of 2017 (Act). VA's
appeals plan addresses 17 of 22 required elements, partially addresses
4, and does not address 1. For example, not addressed is the required
element to include the resources needed by the Veterans Benefits
Administration (VBA) and the Board of Veterans' Appeals (Board) to
implement the new appeals process and address legacy appeals under the
current process. VA needs this information to certify, as specified
under the Act, that it has sufficient resources to implement appeals
reform and make timely appeals decisions under the new and legacy
processes.
VA's appeals plan reflects certain sound planning practices, but it
could benefit from including important details in several key planning
areas:
Performance measurement: VA's plan reflects steps taken to track
performance, but could articulate a more complete and balanced set of
goals and measures for monitoring and assessing performance on a range
of dimensions of success. Specifically, the plan reports that VA is
developing a process to track timeliness of the new and legacy
processes. However, contrary to sound planning practices, the plan does
not include timeliness goals for all five appeals options available to
veterans, does not include goals or measures for additional aspects of
performance (such as accuracy or cost), and does not explain how VA
will monitor or assess the new process compared to the legacy process.
Unless VA clearly articulates a complete and balanced set of goals and
measures, it could inadvertently incentivize staff to focus on certain
aspects of appeals performance over others or fail to improve overall
service to veterans.
Project management: VA's plan includes a master schedule for
implementing the new appeals plan; however, this schedule falls short
of sound practices because it does not include key planned activities-
such as its pilot test of two of the five appeals options. In addition,
the schedule does not reflect other sound practices for guiding
implementation and establishing accountability-such as articulating
interim goals and needed resources for, and interdependencies among,
activities. Unless VA augments its master schedule to include all key
activities and reflect sound practices, VA may be unable to provide
reasonable assurance that it has the essential program management
information needed for this complex and important effort.
Risk assessment: VA has taken steps to assess and mitigate some
risks related to appeals reform by, for example, pilot testing two of
the five appeals options through its Rapid Appeals Modernization
Program (RAMP). However, as designed, RAMP does not include key
features of a well-developed and documented pilot test. For example, VA
has not articulated how it will assess RAMP before proceeding with full
implementation. In addition, RAMP is not pilot testing three options
and, as a result, VA will not have data on the extent to which veterans
will appeal directly to the Board when given the option. Unless VA
identifies and mitigates key risks associated with implementing a new
process, VA is taking a chance that untested aspects will not perform
as desired.
Prepared Statement of Jim Marszalek
Mr. Chairman and Members of the Committee:
Thank you for inviting DAV (Disabled American Veterans) to testify
at this hearing of the House Veterans' Affairs Committee concerning the
implementation of the Veterans Appeals Improvement and Modernization
Act of 2017 (P.L. 115-55).
As National Service Director, I want to thank this Committee for
its dedication and efforts to modernize and improve the VA appeals
process for all veterans and claimants. As one of the key stakeholders
who helped develop the Veterans Appeals Improvement and Modernization
Act of 2017, DAV strongly supports and is fully committed to its timely
and faithful implementation.
Mr. Chairman, as you may know, DAV is a congressionally chartered
national veterans' service organization of more than one million
wartime veterans, all of whom were injured or made ill while serving on
behalf of this Nation. To fulfill our service mission to America's
injured and ill veterans and the families who care for them, DAV
directly employs a corps of more than 260 National Service Officers
(NSOs), all of whom are themselves wartime service-connected disabled
veterans, at every Department of Veterans Affairs (VA) regional office
(VARO) as well as other VA facilities throughout the Nation. Together
with our Chapter, Department, Transition and County Veteran Service
Officers, DAV has over 4,000 accredited representatives on the front
lines providing free claims and appeals services to our Nation's
veterans, their families and survivors.
In 2017, DAV NSOs interviewed over 300,000 veterans and their
families and filed over 192,000 new claims for benefits for the injured
and ill veterans we represented before the VA. We currently represent
over one million veterans or survivors, making DAV the largest veterans
service organization (VSO) providing claims assistance. In addition,
DAV has a National Appeals Office that represents veterans, dependents
and survivors in their appeals before the Board of Veterans' Appeals
(Board). In fiscal year 2017, DAV provided representation for 31
percent of all appeals decided by the Board, a caseload of 16,400
appeals, more than any other VSO. This testimony reflects the
collective experience and expertise of our thousands of dedicated and
highly trained service officers who provide free claims and appeals
assistance to hundreds of thousands of veterans and survivors each
year.
In 2014, DAV organized a workgroup consisting of subject matter
experts from VA, the Board and other VSO stakeholders, to seek
consensus on commonsense ways to help reform and improve the appeals
process. This collaboration led to development of the Fully Developed
Appeals pilot proposal, which was introduced and made progress as
legislation in both the House and Senate. In 2016, VA convened a new
workgroup with a much more ambitious goal: overhaul the entire appeals
process. The resultant appeals modernization legislation was produced
through a remarkable collaboration between the VA, Board and VSO
stakeholders representing veterans, including DAV.
Veterans Appeals Improvement and Modernization Act of 2017 (P.L. 115-
55)
On August 23, 2017, the Veterans Appeals Improvement and
Modernization Act of 2017 was signed into law. The legislation
comprehensively reforms the VA appeals system, fully protecting the due
process rights of veterans while creating multiple options for them to
receive their decisions in a more timely and judicious manner. The
critical core of the new system provides veterans multiple options to
address unfavorable claims decisions, introduce new evidence at both
the Board and VBA, and protect their earliest effective dates without
having to be locked into the current long and arduous formal appeals
process.
In general, veterans unsatisfied with their claims decision will
have three main options. First, there will be an option for a local
Higher Level of Review of the original claim decision based on the
evidence of record at the time of the claim decision. Second, there
will be an option for a Supplemental Claim when new and relevant
evidence is presented or a predetermination hearing requested. Third,
there will be an option to pursue an appeal, via Notice of Disagreement
(NOD), to the Board, with or without new evidence or a hearing.
Veterans must elect one of these three options within one year of the
claims decision to protect their effective date.
The central dynamic of the new system is that a veteran who
receives an unfavorable decision from one of these three main options
may then pursue another option. As long as the veteran continuously
pursues a new option within one year of the last decision, they would
be able to preserve their earliest effective date, if the facts so
warrant. Each of these options, or ``lanes,'' as some call them, have
different advantages that allow veterans to elect what they and their
representatives believe will provide the quickest and most accurate
decision.
For the higher-level review option, the veteran can choose to have
the review done at the same local VARO that made the claim decision, or
at another VARO, which would be facilitated by VBA's electronic claims
files and the National Work Queue's ability to instantly distribute
work to any VARO. The veteran does not have the option to introduce any
new evidence, nor have a hearing with the higher-level reviewer,
although a veteran or the appointed representative can choose to have
informal conferences with the reviewer in order for them to point out
errors of fact or law. The review and decision will be de novo and a
simple ``difference of opinion'' by the higher-level reviewer will be
enough to overturn the decision in question. If the veteran is not
satisfied with the new decision, they can then elect one of the other
two options.
For this higher-level review, the ``Duty to Assist'' (DTA) will not
apply because it is limited to the evidence of record used to make the
original claims decision. If a DTA error is discovered that occurred
prior to the original decision, unless the claim can be granted in
full, the claim will be sent back to the VARO to correct any errors and
readjudicate the claim. If the veteran is not satisfied with that new
decision, they can still elect the other appeal options.
For the supplemental claim option, veterans will be able to request
a pre-determination hearing and present new evidence that would be
considered in the first instance at the VARO. VA's full DTA will apply,
to include development of both public and private evidence. This will
be a de novo review of all the evidence presented both before and after
to the claim decision, until the new decision is issued. As with a
higher level review, if the veteran is not satisfied with the new
decision, they can then elect another option to continue pursuing the
contested claims.
For the third option, appeal to the Board, there will be three
separate dockets: one that does not allow hearings and new evidence to
be introduced; one that allows both new evidence and hearings, and one
that allows new evidence with no hearing. For each of these dockets,
the appeal would be routed directly to the Board with no processing
steps at VBA. In conjunction with the continuing legacy appeals docket,
the Board will now have to manage four different dockets.
For the Board docket that allows hearings, veterans can choose
either a video conference hearing or an in-person hearing at the
Board's Washington, DC offices; there will no longer be travel hearing
options offered to veterans. New evidence will be allowed, but limited
to specific timeframes: if a hearing is elected, new evidence could be
presented at the hearing or for 90 days following the hearing; if no
hearing is elected, new evidence could be presented with the filing of
the NOD or for 90 days thereafter.
If the veteran is not satisfied with the Board's decision, they can
elect to continue with a Supplemental Claim, and if filed within one
year of the Board's decision, it would continue to preserve their
earliest effective date. The veteran also has 120 days to file a notice
of appeal to the Court of Appeals for Veterans Claims (Court). If the
Court's decision does not satisfy the veteran, they can file another
Supplemental Claim within one year with new evidence. They also retain
the right to appeal the Court's decision to the Federal Circuit Court
of Appeals.
If the Board discovers that a DTA error was made prior to the
original claims decision, unless the claim can be granted in full, the
Board would remand the case back to VBA for it to correct the errors
and readjudicate the claim. Again, if the veteran was not satisfied
with the new claim decision, they could choose from one of the three
appeals options available to them, and as long as they do so within one
year of the decision, they would continue to preserve their earliest
effective date. The new statute does not impose a limit on the number
of times a veteran could choose one of these three options, and as long
as they properly elect a new one within a year of the prior decision,
they continue to protect their earliest effective date.
Improving Claims Decision Notification
P.L. 115-55 mandates that the contents of notification letters must
be clear, easy to understand and easy to navigate. The notice must
convey not only VA's rationale for reaching its determination, but also
the options available to claimants after receipt of the decision. It
requires that in addition to an explanation for how the veteran can
have the decision reviewed or appealed, all decision notification
letters must contain the following information to help them in
determining whether, when, where and how to appeal an adverse decision:
1. A list of the issues adjudicated;
2. A summary of the evidence considered;
3. A summary of applicable laws and regulations;
4. Identification of findings favorable to the claimant;
5. Identification of elements that were not satisfied leading to
the denial;
6. An explanation of how to obtain or access evidence used in
making the decision; and
7. If applicable, identification of the criteria that must be
satisfied to grant service connection or the next higher level of
compensation for the benefit sought.
The new decision notification will provide a more thorough and
complete explanation of the VA decisions and will require a denial to
describe the type of evidence that is required. The decision
notification letter should be used in all decisions being conducted
during implementation of the new appeals system.
Rapid Appeals Modernization Program (RAMP)
Starting in September 2017, the Appeals Management Office (AMO) and
the Board began discussions with VSOs and other stakeholders about the
Rapid Appeals Modernization Program (RAMP), which was authorized by the
pilot program authority in P.L. 115-55. RAMP is intended to address the
backlog of legacy appeals while also serving as a mechanism for testing
elements of the new appeals system.
At the beginning of October 2017, there were approximately 340,000
pending appeals at the VARO in various stages. There were roughly
88,000 appeals at the Board. RAMP will give the oldest pending legacy
appeals the first opportunity to opt-in to the program, which allows
claimants to choose two of the new options: Higher Level of Review and
Supplemental Claims. Claimants are required to withdraw their legacy
appeal to opt into RAMP, but will be able to retain their earliest
effective dates. The Board option is not offered through RAMP, as this
option will not become effective until full implementation of the law
in February 2019.
Prior to initiating RAMP, and in consultation with DAV and other
VSOs, the AMO addressed concerns and suggestions for the implementation
and options under the program. The draft RAMP opt-in letters were
provided to VSOs and other stakeholders for review and comments.
However, although the new decision notification letter requirements in
P.L. 115-55 will be applied to all RAMP decisions, VA's IT system is
currently unable to seamlessly support the new notification
requirements so VA is using a ``work-around'' for new decision and
notification letters.
In November 2017, VA launched the first phase of RAMP, offering the
500 oldest appeals the opportunity to opt into the program, providing
claimants 60 days to respond. On December 1, 2017, an additional 5,000
legacy appellants were invited to opt-in to RAMP, and in January 2018,
10,000 more were invited.
Although RAMP is still in its infancy, the earliest returns as of
January 25, 2018, resulted in 309 appellants electing to opt-in, a 3
percent opt-in rate, with 225 choosing Higher Level of Review. Of those
cases, the decisions were completed in an average of 27 days.
Of those initial claimants opting in to RAMP, 58 are represented by
DAV, the largest of any accredited representative; nine of those cases
have already been decided in an average of 31 days. Those nine
decisions resulted in two cases being completely denied and the other
seven with favorable decisions. A total of 29 issues were granted and
25 issues denied. Those seven cases resulted in an amazing total of
retroactive compensation payments of $520,693.09. Some of the
exceptional results were:
1. Gulf War Era veteran receives 100 percent evaluation in less
than two months. This veteran submitted new and material evidence in
June 2008 but his claim for mental health disorder was denied. After
many years of appealing to the VARO and remands from the Board, the
veteran opted into RAMP on November 16, 2017. Based on the de novo
review by the AMO, a grant of service connection with a 100 percent
evaluation was completed in 48 days. The decision was established
effective June 2008 and resulted in $276,489.68 in retroactive
benefits. After 10 years of appealing, RAMP was able to grant benefits
in less than two months.
2. Veteran receives Total Evaluation retroactive for seven years in
41 days. In 2014, this Vietnam Era veteran was denied an increased
evaluation in his wartime connected mental health disorder and
entitlement to a total evaluation based on individual unemployability
(TDIU). The veteran was offered to opt-in to RAMP on December 1, 2017,
and returned the election on December 18, 2017. The AMO decision of
January 11, 2018, granted TDIU effective September 2011. RAMP yielded a
favorable grant of benefits totaling $124,777.44 in retroactive
payments. After waiting five years for action from his claim, he
received a grant of benefits in 41 days after being offered RAMP.
3. MST veteran receives full grant in less than 30 days after
waiting seven years. A Vietnam Era veteran filed a claim for a mental
health disorder due to military sexual trauma (MST) in June 2010. The
claim was denied and the veteran continued to pursue evidence after
being repeatedly denied. The veteran submitted a NOD in March 2014 and
was offered to opt-in to RAMP on December 1, 2017, and returned the
election on December 11, 2017. The AMO decision of December 28, 2017,
granted service connection for the mental health disorder and
established a 100 percent evaluation effective June 2010, yielding a
total of $104,484.70 in retroactive benefits. After seven years, under
RAMP, a grant was made in less than 30 days.
These early cases establish the tremendous impact of RAMP and its
potential in reducing the legacy appeals backlog. RAMP is showcasing
two of the three options of the Veterans Appeals Improvement and
Modernization Act and its impact on timeliness.
Currently, only the AMO is adjudicating those opt-in cases under
RAMP. The next phase of RAMP will include expanding the program to two
additional VA Regional Offices, Denver and Phoenix, to process RAMP
cases. The AMO will provide all RAMP on-site training to both VAROs.
The next release of opt-in letters will be February 1, 2018, to 25,000
legacy appeals claimants and 12,000 NODs received in December and
January.
DAV has provided this information and training to our NSO Corps for
their knowledge in providing assistance on RAMP to our clients. RAMP
provides claimants with extremely old legacy appeals to have an option
for relative immediate adjudicative action that protects their
effective dates. If the Higher Level of Review or the Supplemental
Claims options do not result in their desired outcome, beginning in
February 2018, they can also elect the Board option under RAMP,
although these appeals will not begin to be addressed until February
2019, when the law is fully implemented.
As mentioned, DAV's represented veterans have benefited from RAMP
and we believe it is a great testing environment for the new appeals
system. We understand it is early in the program and improvements and
adjustments will be made throughout the process. Below are specific
comments and recommendations in reference to RAMP.
RAMP Comments and Recommendations
1.Early Opt-in Rates of RAMP. As RAMP was offered to the oldest
appeals, many claimants may be under the impression that they are too
close for a decision and choose not to opt-in. In addition, at this
point there has been very little communication or education by VA or
VSOs about the potential benefits of RAMP for veterans with pending
appeals. We believe it is too early and there is not adequate data to
draw conclusions about the program.
2.Resolution of IT Issue to support new decision notification
letters. The AMO committed to provide all RAMP participants with
decision/notification letters as will be required upon full
implementation of P.L. 115-55. However, VA IT systems have not been
updated to allow for automatic generation of the new letter format,
thereby forcing the AMO to use a manual work-around. We believe this
can have a negative impact on the timeliness of these decisions and
urge VA to fix this issue prior to the expansion of RAMP to VAROs in
Denver and Phoenix.
3.Allow all claimants with pending appeals to opt-in to RAMP in the
future. The early results of RAMP indicate this program can
significantly benefit many veterans who have waited years for favorable
claims decisions. As VA and VSOs begin sharing these early success
stories, many appellants who learn about RAMP, but who have not yet
been invited by VA, may seek to opt-in to the program to bypass
considerable delays in the current legacy appeals processing system. As
the representatives of over 1 million veterans and families, we see
tremendous potential benefit by allowing all veterans to have the
choice to opt-in to RAMP as soon as possible.
4.Opt-in Election Letter submission. Opt-in Elections completed by
the claimant are required to be submitted only via fax to the Appeals
Resource Center (ARC) with the ARC Coversheet. DAV has over 260
National Service Officers nationwide providing representation and
utilizing the VA Direct Mail Upload for evidence and record
submissions, which provides a more efficient way to transmit the
information. DAV believes we should be able to submit RAMP Opt-in
Elections through the same means, rather than solely by fax.
Implementing the Modernized Appeals System.
The Veterans Appeals Improvement and Modernization Act of 2017
(P.L. 115-55) requires VA to complete a Comprehensive Plan for
Processing Legacy Appeals and Implementing the Modernized Appeals
System. The Plan was released in November 2017 and was discussed at the
House Veterans' Affairs Subcommittee on Disability and Memorial Affairs
Roundtable on November 30, 2017. Overall, DAV believes that the
proposal provides a reasonable path forward for VBA and the Board to
implement the new system. Key comments and recommendations for specific
issues are noted below:
1.Section 3(a)(3)-Timely Processing Under New Appeals System.
Supplemental claims and Higher Level of Review case completion is
projected as an average of 125 days. To ensure that the new appeals
system is successful, these average days to completion projections must
be given the appropriate resources to ensure that quality and timely
decisions are produced.
2.Section 3(a)(3)-Timely Processing Under New Appeals System. For
appeals in which there is no additional evidence and no request for
hearing, the projected average processing time is 365 days. The plan
notes that the average processing time for the two other dockets will
be contingent upon what resources remain and how they are allocated
among the dockets. DAV is concerned that resources may be shifted to
ensure that the no-evidence/no-hearing docket meets its 365-day average
goal, leaving the other two dockets and the legacy appeals docket to
suffer unacceptable delays. To assure timeliness and provide fairness
and equity to veterans on all dockets, we urge VA to provide adequate
resources and consider establishing projected average time processing
standards for all four dockets.
3.Section 3(b)(10)-Modifications to Information Technology Systems.
As noted above, the Board will now be maintaining four separate appeals
dockets; three for the new appeals and one for legacy appeals. At the
November 30th Roundtable, VA's office of Digital Services indicated
that 30 employees were assigned to rebuild the Board's existing appeals
tracking system (VACOLS) to include RAMP. The design and completion of
this new appeals tracking system is an integral part of the
implementation plan. The targeted goal is for the complete integration
of this system in the Veterans Benefits Management System (VBMS) by
August 30, 2018. We urge VA to provide sufficient resources for the
completion and launch of this new system prior to the targeted date.
4. Section 3 (b)(15)-Timeline for Promulgating Regulations. We
received and provided preliminary comments and requests for
clarification of the Proposed Regulations. However, our main concern is
the time frame for the Proposed Regulations. We understand that these
are currently being reviewed by VA Counsel before being sent to the
Office of Management and Budget. We urge the VA to have these numerous
Proposed Regulations submitted to the Federal Register as soon as
possible to avoid any delays in publishing these regulations prior to
February 2019.
5.Legacy Appeals and Pending Hearings. While the RAMP Program can
address a portion of the legacy appeals, we are concerned with the
overall processing time for legacy appeals, specifically the timeliness
and volume of hearings that are pending. As of January 24, 2018, there
are 84,658 total hearings pending with the Board; 65,550 video
conference hearings, 17,241 travel board hearings, and 1,867 in-person
hearings in Washington DC. Currently, the Board is only conducting in-
person hearings in Washington DC one day a week. We do not feel this
will adequately address the pending in-person legacy appeal hearing
backlog. We urge the VA put forward a plan to address the overwhelming
number of pending hearings for legacy appeals and to provide the
necessary resources to reduce the over 84,000 pending hearing requests.
6.Evidence Submission for Hearings. Under P.L. 115-55, when a
veteran submits a NOD to the Board, they can opt to have a hearing and/
or opt to submit new evidence. If a veteran elects to have a hearing
and chooses to submit new evidence, it is required to be submitted at
the hearing or within 90 days after the hearing. An issue that has not
been adequately addressed is, ``what will happen to evidence submitted
prior to the requested hearing?'' We contend that any evidence received
after the NOD but prior to the Board hearing, should be accepted and
made part of the appeal record.
Mr. Chairman, to reiterate, DAV strongly supports the Veterans
Appeals Improvement and Modernization Act the Rapid Appeals
Modernization Program (RAMP). We are grateful for the opportunity to
continue our partnership with the VA and our fellow VSOs and our
stakeholder partners. We look forward to continued collaboration on
these programs to ensure that P.L. 115-55 results in the modern appeals
processing system this grateful nation owes to our deserving veterans
and their families.
This concludes my testimony. Thank you for the opportunity to
appear at today's hearing. I would be pleased to answer any questions
you or members of the Committee may have.
Prepared Statement of Diane Boyd Rauber, Esq.
Chairman Roe, Ranking Member Walz, and members of the Committee,
the National Organization of Veterans' Advocates (NOVA) would like to
thank you for the opportunity to testify on the topic of ``Appeals
Reform: Will VA's Implementation Effectively Serve Veterans?'' We
appreciate the Committee's leadership in exercising its oversight
authority over VA's implementation of appeals reform.
NOVA is a not-for-profit 501(c)(6) educational membership
organization incorporated in the District of Columbia in 1993. NOVA
represents nearly 600 attorneys and agents assisting tens of thousands
of our nation's military veterans, their widows, and their families
seeking to obtain their earned benefits from VA. NOVA works to develop
and encourage high standards of service and representation for all
persons seeking VA benefits. NOVA members represent veterans before all
levels of VA's disability claims process, and handle appeals before the
U.S. Court of Appeals for Veterans Claims (CAVC) and U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). In 2000, the CAVC
recognized NOVA's work on behalf of veterans with the Hart T. Mankin
Distinguished Service Award. NOVA operates a full-time office in
Washington, DC.
Attorneys and agents handle a considerable volume and growing
number of appeals at the Board of Veterans' Appeals (BVA). In FY 2015,
for example, attorneys and agents handled 14.9% of appeals before BVA.
This number was fourth only behind Disabled American Veterans (28.1%),
State Service Officers (16.5%), and American Legion (15%). U.S.
Department of Veterans Affairs, Board of Veterans' Appeals Annual
Report Fiscal Year 2015 at 27. In FY 2016, this number grew to 15.9%,
third only to Disabled American Veterans (28.1%) and American Legion
(19.6%). U.S. Department of Veterans Affairs, Board of Veterans'
Appeals Annual Report Fiscal Year 2016 at 26. Similar statistics are
available for FY 2017, with attorneys and agents representing
appellants in 17% of cases, again third behind Disabled American
Veterans (31%) and American Legion (18%).
NOVA members have been responsible for significant precedential
decisions at the CAVC and Federal Circuit. In addition, as an
organization, NOVA has advanced important cases and filed amicus briefs
in others. See, e.g., Henderson v. Shinseki, 562 U.S. 428
(2011)(amicus); NOVA v. Secretary of Veterans Affairs, 710 F.3d 1328
(Fed. Cir. 2013)(addressing VA's failure to honor its commitment to
stop applying an invalid rule); Gray v. Secretary of Veterans Affairs,
No. 16-1782 (Jan. 3, 2018)(amicus in support of petition for rehearing
before the Federal Circuit); Robinson v. McDonald, No. 15-0715 (July
14, 2016)(CAVC amicus).
We detail below concerns that should be addressed to ensure
implementation of the appeals reform legislation preserves the long-
standing intent of Congress: that the VA benefits adjudication and
appeals process be veteran friendly and nonadversarial.
OVERVIEW
NOVA appreciated the opportunity to participate in the discussion
of appeals reform that led to the passage of the Veterans Appeals
Improvement and Modernization Act of 2017. We also applaud VA's ongoing
inclusion of stakeholders in the discussion of its implementation
plans, which has included opportunities to review draft regulations and
documents related to its Rapid Appeals Modernization Program. NOVA
remains committed to providing constructive feedback in response to
these opportunities, and urges VA to consider and implement the
recommendations of the stakeholder community.
As we have previously noted, successful implementation will be key
if appeals reform is truly to be the positive change veterans deserve
and VA promises. Effective implementation hinges on VA's ability to
consistently meet its goals of adjudicating and issuing decisions in
the 125-day window identified for supplemental claims and deciding
appeals within the one-year period before BVA. As demonstrated with the
prior backlog of original claims and scheduling of medical
appointments, VA often struggles to meet its own internal goals to the
detriment of veterans.
RAPID APPEALS MODERNIZATION PROGRAM (RAMP)
Relying on section 4 of P.L. 115-55, VA implemented the Rapid
Appeals Modernization Program (RAMP) in November 2017. According to the
Standard Operating Procedures (SOP) designed for RAMP, the Veterans
Benefits Administration (VBA) ``will administer this pilot during the
18-month period after enactment allowed for full implementation of the
new process and continue processing elections by Veterans as long as
necessary thereafter to continue to accelerate resolution of legacy
appeals.'' SOP at 1. Based on VA's proposed rollout of this program, as
of January 1, 2018, VA sent approximately 15,500 letters to veterans
with appeals eligible for acceptance into RAMP. Last week, Secretary
Shulkin testified before the Senate Committee on Veterans' Affairs that
approximately three percent of invited veterans have elected to opt
into RAMP, and 75 percent of those who received decisions were awarded
a grant.
As an initial matter, stakeholders need information and statistics
on a regular basis. Such data is important to stakeholders to
understand the current state of RAMP and provide the best advice to
veterans and their families. Data is also a critical component of any
true pilot program to measure its success, and VA must commit to
regular updates so stakeholders can gauge progress and suggest
improvements. We hope the recent meeting that took place on January
25th will be the first of many. Furthermore, VA should ensure its field
staff is receiving regular communications and training on RAMP
operations, as well as updates on its progress.
From NOVA's perspective, there are a few reasons why there is a low
opt-in rate to RAMP. First, VA chose not to extend the program through
to BVA. Therefore, a veteran who withdraws his or her pending appeals
(with no opportunity to return to the legacy system), is denied after
either a higher-level review or supplemental claim, and wishes to
appeal to BVA must now wait until the system is fully implemented - at
the earliest in February 2019 - to obtain BVA review. While VA has
stated those veterans will be first in line for BVA review upon full
implementation of the system, many representatives are reluctant to
counsel an appellant to move into a program that does not extend to BVA
and does not provide a full understanding of how the procedure will
ultimately operate at BVA. Furthermore, VA's recently submitted
implementation plan indicates that the ``average processing time goal
for appeals under Sec. 7107 does not apply to appeals submitted to the
Board in response to a decision under VBA's RAMP.'' U.S. Department of
Veterans Affairs, Comprehensive Plan for Processing Legacy Appeals and
Implementing the Modernized Appeals System 8 (November 2017).
Second, VA is targeting the oldest appeals. While we understand
this strategy is designed to be fair to those who have been waiting the
longest, many veterans currently receiving invitations are close enough
to a BVA decision that they do not wish to move into something new,
particularly in light of Secretary Shulkin's recent statement that BVA
intends to decide 81,000 appeals in FY 2018.
In addition, veterans with cases in remand status may be more
likely to stay in the legacy system because BVA will retain
jurisdiction over the appeal. The veteran will be entitled to expedited
consideration upon return to BVA if he or she is not satisfied with the
action taken on remand, as well as enforcement of the prior order.
Finally, although NOVA appreciates VA efforts to ensure attorneys
and agents receive copies of RAMP correspondence sent to veterans
(required under its M21-1 Adjudication Procedures Manual for all
correspondence), VA's mailing systems remain seriously flawed both for
RAMP and overall adjudication procedures. NOVA receives nearly daily
complaints from members that copies of correspondence are not being
received. While VA has stated it plans to launch a centralized outgoing
mailing system to rectify these issues, far too much correspondence has
gone unmailed and unreceived. When VA fails to properly notify,
important deadlines are missed and additional claims and appeals must
be pursued to address VA's failures, resulting in yet more delay in the
process.
It is clear that VA is not fulfilling its responsibilities in this
regard. In July 2017, the Government Accountability Office (GAO)
completed a report addressing VA's outgoing mail deficiencies. United
States Government Accountability Office, Report to the Chairman,
Committee on Veterans' Affairs, House of Representatives, Veterans
Affairs: Actions Needed to More Effectively Manage Outgoing Mail, GAO-
17-581 (July 2017). The Subcommittee on Oversight and Investigations
subsequently held a hearing on this report. House Committee on
Veterans' Affairs, Subcommittee on Oversight and Investigations, VA
Mail Management: The Case of the $11,257 Package (hearing held
September 12, 2017). In addition to finding VA has an outdated mail
management policy directive and handbook, GAO noted that ``VA cannot
ensure consistent mailing practices in its administrations and
facilities because it has not provided mail managers with appropriate
authority and responsibilities to oversee mail operations across the
agency.'' GAO Report at 7; see also GAO Report at 15. VA must improve
its mailing practices, so veterans and their representatives receive
proper notice of claims and appeals processing, and we urge the
Subcommittee to continue its oversight of this issue.
IMPLEMENTATION OF THE VETERANS APPEALS IMPROVEMENT AND MODERNIZATION
ACT OF 2017
As part of the reporting requirements imposed under P.L. 115-55, in
November 2017, VA submitted its first report, Comprehensive Plan for
Processing Legacy Appeals and Implementing the Modernized Appeals
System (hereinafter Comprehensive Plan). VA does not provide sufficient
details for how it will handle legacy appeals in relation to modernized
appeals once the new system is implemented. Based on several statements
made in the report, it appears VA intends to devote resources first to
modernized appeals and allocate ``leftovers'' to legacy appeals. See,
e.g., Comprehensive Plan at 4 (``VA will allocate available resources
to meet the timely processing goals in the new system, as outlined in
section 3(a)(3), and remaining resources are then employed to process
legacy appeals.''); Comprehensive Plan at 9 (``VA intends to allocate
resources in an efficient manner that will establish timely processing
in the new process and will allocate all remaining appeals resources to
address the inventory of legacy appeals.''); Comprehensive Plan at 10
(``VBA intends to allocate field resources in an efficient manner that
will establish timely processing in the new process and will allocate
all remaining resources to address the inventory of legacy appeals.'').
VA needs to provide more details about how it will continue to process
legacy appeals in a fair and timely manner while fulfilling its
obligations under the new legislation, to include how it will address
the substantial backlog of BVA hearing requests.
Furthermore, in its implementation plan, VA stated it needs
enhancements to the Veterans Benefits Management System (VBMS) to meet
the statute's specifications. Comprehensive Plan at 15. Secretary
Shulkin also testified to VA's ``enterprise-wide efforts to modernize
the appeals process through improvements in technology.'' Statement of
the Honorable David J. Shulkin, M.D., Secretary of Veterans Affairs,
for Presentation Before the Senate Committee on Veterans' Affairs, The
State of VA: Progress Report on Implementing 2017 VA Reform Legislation
3 (January 17, 2018). Congress must ensure VBA and BVA continue to
receive sufficient resources to implement necessary technological
upgrades to its systems, particularly VBMS and Caseflow. VBMS was not
designed with appeals processing in mind, and it lacks many features
that would make work for VBA employees, BVA employees, and
representatives easier and more efficient. VA should ensure VBMS
enhancements continue, Caseflow is fully operational, and all
representatives have access to as many features as appropriate to help
them represent veterans as effectively as possible.
CONCLUSION
NOVA is committed to continue working with this Committee, VA, and
fellow stakeholders to ensure the appeals process for veterans is fair,
timely, and preserves veterans' due process rights. We again thank the
Committee for allowing us to provide our views on implementation of
appeals reform, and I would be happy to answer any questions the
Committee members might have.
For more information:
NOVA staff would be happy to assist you with any further inquiries
you may have regarding our views on this topic. For questions regarding
this testimony or if you would like to request additional information,
please feel free to contact:
Diane Boyd Rauber, Esq.
Executive Director
National Organization of Veterans' Advocates, Inc.
1775 Eye Street, NW
Suite 1150
Washington, DC 20006
(202) 587-5708
drauber@vetadvocates.org
Prepared Statement of Steven Henry
Chairman Roe, Ranking Member Walz, and members of the Committee,
Paralyzed Veterans of America (PVA) would like to thank you for the
opportunity to offer our views on the implementation of the Department
of Veterans Affairs' (VA) appeal reform and if in fact it will
effectively serve veterans.
PVA employs a highly-trained force of over 70 service officers
across the nation who develop veterans' claims for both member and non-
member clients. These frontline employees spend a minimum of two years
in specialized training. We maintain a national appeals office staffed
by attorneys and legal interns who represent clients at the Board of
Veterans' Appeals (Board). We also have attorneys who practice before
the Board, the Court of Appeals for Veterans Claims (CAVC), and the
United States Court of Appeals for the Federal Circuit. Of all the
major Veteran Service Organizations (VSO), only PVA offers such
continuity of representation throughout subsequent appellate review.
Our most important attribute, though, is that our service officers
and attorneys consistently advocate for catastrophically disabled
veterans. Complex claims are the norm, not the exception. As we attempt
to bring greater efficiency to the claims and appeals system, our
perspective is geared toward ensuring that the due process rights of
the most vulnerable among us-those most deserving of benefits-are not
watered down for the sake of expediency.
In July 1933 the Board of Veterans Appeals, often referred to as
the Board, was established providing veterans with appeals rights.
Members of the Board of Veterans Appeals were appointed by the
Administrator with the approval of the President. The Board's mission
is to conduct hearings and to provide decisions on veteran's appeals in
a timely manner. The Board's jurisdiction extends to all questions in
matters involving a decision by the Secretary of Veterans Affairs under
a law that affects a provision of benefits by the Secretary to
veterans, their dependents or their survivors.
The appeals process for VA benefits is a complex, non-linear
process, which is set in law and is unique from other appeals processes
across the federal and judicial systems. Notably, the current VA
appeals process is a continuous open record that allows the claimant to
submit new evidence or make a new argument at any point throughout the
process. Furthermore, VA's duty to assist requires VA to assist with
the development of additional evidence submitted by the claimant to
assist with the adjudication of their claim. Generally, VA must issue
another decision specifically addressing the newly submitted evidence.
When a claimant exhausts their appeal rights at the local Regional
Office (RO) they may choose to appeal their claim to the Board. To do
so they must file a Form 9 which certifies their case to the Board and
provides their claim with a docket date. All cases at the Board are
heard in docket date order.
In fiscal year 2015, the Board received and docketed 69,957 appeals
and anticipated the docketing of 88,183 appeals in fiscal year 16. The
Board's cycle time which measures the average time from the date an
appeal is certified to the Board until a decision is rendered was 160
days in FY15. This does not include the time spent with service
organizations who represent the veterans and assist them with their
appeal.
In reaction to the increasing backlog of appeals claims, instead of
addressing the lack of proper development and adjudication at the local
Regional Offices, VA instead chose to modify the appeals process at the
Board. VA did so through a collaboration with Congressional leadership
by introducing the Veterans Appeals Improvement and Modernization
(VAIMA) Act of 2017. In the legislation, Congress introduced language
that provided VA with the authority to establish a test program, or
pilot, to assist with the implementation of the VAIMA. VA's pilot,
already in effect, is called the Rapid Appeals Modernization Program
(RAMP).
PVA has several concerns with RAMP. First and foremost is the fact
that it is not a pilot because of VA's plan to extend RAMP to all
veterans in varying stages of appeals. It is clear that RAMP is an
effort by VA to facilitate implementation of the VAIMA in an effort to
reduce the appeals backlog. In general, a ``pilot program'' is defined
as a small scale preliminary study conducted in order to evaluate
feasibility, time, cost, adverse events, and effect size (statistical
variability) in an attempt to predict an appropriate sample size and
improve upon the study design prior to performance of a full-scale
program. To date, VA has distributed thousands of notices to veterans
proposing the choice to ``opt-in'' to the RAMP program.
RAMP is not a small scale project. Furthermore, VA did not share
any benchmarks for which the project will be tested prior to its
implementation. How will the pilot be determined a success? In
actuality, there was very little communication with VSOs in regards to
when and how the program was going to be implemented.
With this new program claimants will have the ability to opt in if
they receive a less than favorable decision on their original claim.
The RAMP program provides the veterans with three lanes:
Supplemental Claim Lane: Veterans will select this option
if they have additional evidence that is ``new and relevant'' to
support granting their claim.
Higher Level Review Lane: Veterans will select this
option if they have no further evidence to submit but believe there was
an error in the initial decision.
The last choice is to have your claim recertified to the
Board.
The RAMP process is completely separate from the Board. It is not
clear how opting into RAMP will affect their docket date if they later
elect to go to the Board.
PVA has serious concerns with the claimants having to withdraw
their appeals particularly with veterans who choose to participate in
RAMP although their appeals have been remanded for further development
by the Board. In 1988 the Court of Appeals for Veterans Claims often
referred to as the Court, was established for exclusive jurisdiction to
review decisions of the Board of Veterans Appeals. Decisions rendered
by the Court can establish precedent. One decision in particular was
Stegall v. West. In Stegall the Court held that any remand instructions
by the Board must be adhered to by the Regional Office and that the
Board must ensure that its remand instructions are complied. This
protection is important as it further compels VA to comply with its
duty to assist.
If a veteran withdraws their appeal(s) they will no longer have the
protection under Stegall because the Board will no longer have
jurisdiction over the claimants claim. This puts increased
responsibility on the veteran or their representative to ensure VA has
fully complied with its duty to assist. Unfortunately, most veterans do
not have the knowledge, access to records, or wherewithal to scrutinize
whether the Board's remand instructions have been complied with.
Ensuring that VA provide adequate exams by the proper specialist is
a common error in claims that face continued denial in the current
appeals process. PVA represents veterans who are the most
catastrophically disabled and whose claims are often extremely complex.
More often than not, veterans with complex claims that include any
aspect of Special Monthly Compensation (SMC), must be seen by
specialists, most likely a neurologist, not nurse practitioners or
physicians practicing general medicine. Without a specialist conducting
the exam it is quite possible the most important details will be
overlooked which could result in a significant monetary loss for the
veteran.
As part of the pilot, VA is sending notices to veterans across the
country giving them the option to opt-in to the new program that would
provide them a quicker decision. PVA is concerned that many veterans
will make the choice to opt-in based on the fact that the basis of the
program is to provide quicker decisions. Unfortunately this program is
not for everyone and could actually have a very detrimental effect on
the veteran's claim. There have been instances where a PVA Service
Officer (SO) was contacted by a veteran who informed them that they had
opted-in to the RAMP program.
Another of PVA's concerns is VA's intention to implement the
program as quickly as possible without determining resources needed for
the program to be successful. An example would be the fact that if a
veteran opts-in to the RAMP program, exhausts all of their lanes and
still receives an unfavorable decision, the veteran is unable to appeal
their claim to the Board until February, 2019. It is possible that
veterans will be angry that they must wait until 2019 to certify their
appeal to the Board even though this was explained in the initial
letter to the veteran explaining the process. Unfortunately, the
explanation was found half way down on page four. Even the most
experienced advocate could easily miss this notification. VA must
improve their means of notifying the veterans of these regulations that
could have a serious detriment to their claims. Furthermore, legal
action against VA could be possible for failing to adhere to current
due process regulations.
It's no secret VA has a very difficult job. At the end of the day
there are many stakeholders VA must answer to. Unfortunately with this
responsibility VA will often make kneejerk decisions and will implement
programs prior to having the resources in place to ensure the program's
success. The RAMP program is no different. VA is pushing RAMP out so
quickly that even VA employees in Regional Offices across the country
have very little confidence in the effectiveness of the program.
Furthermore, there has been little to no communication between VA and
VSO's in regards to providing the necessary training and tools to our
field employees to assist them with providing accurate information to
their clients. Like all other VA programs and initiatives there must be
constant communication between VA and VSO's to ensure the veteran's
needs are met and their voices are heard.
PVA is also concerned with the stages of appeals that VA is
targeting with RAMP. PVA has received notice that for the month of
February 2018, 120 veterans represented by PVA will receive opt-in
notices. Out of those, 76 were in the Notice of Disagreement (NOD)
stage, 16 had submitted their Form 9's, 20 had been certified advanced
and 7 are in remand status. Veteran's whose cases are in remand status
should absolutely not be contacted nor should they be provided the
option to opt-in because they are already in such an advanced stage in
their appeal.
PVA is certain that the RAMP program has not been implemented for
the veteran's benefit but for VA's. When asked to opt-in to the RAMP
program the veteran must agree to withdraw all appeals that would have
been appealed to the Board. By doing so it would give the impression
that appeals were being reduced, when in reality they are just on hold.
As you know, PVA has an extensive national network of SO's who work
with our members and other veterans to prosecute their VA claims. Some
of our SO's report a culture in their Regional Offices where
adjudicators are not comfortable favorably exercising their full
authority in the current system. Changing a law is hard, but changing a
culture is much harder. If VA does not work to change the culture of
its decision makers, and if VA managers do not allow their decision
makers to exercise their full authority, then it won't matter whether
you call it a Decision Review Officer, a Higher Level Review, an appeal
or anything else. To get the benefits of appeals modernization, VA must
change more than titles and regulations, it must also change the
proverbial hearts and minds of its employees.
We are concerned that, in its rush to implement RAMP, VA has not
fully complied with Congress's intent. The act envisioned a
comprehensive plan followed by a pilot to test assumptions used in the
plan, but the RAMP program began before the comprehensive plan was
fully developed. We urge continued oversight to ensure the
congressional intent is followed.
Chairman Roe, Ranking Member Walz, and members of the Committee,
thank you for the opportunity to submit our views on the RAMP and
Appeals Modernization Programs. I would be happy to answer any
questions the Committee may have.
Statements For The Record
THE AMERICAN LEGION
Chairman Roe, Ranking Member Walz, and distinguished members of the
House Committee on Veterans Affairs, on behalf of Denise H. Rohan,
National Commander of The American Legion, the country's largest
patriotic wartime service organization for veterans, comprising 2
million members and serving every man and woman who has worn the
uniform for this country; we thank you for the opportunity to testify
on the topic of ``Appeals Reform: Will VA's Implementation Effectively
Serve Veterans?''
The American Legion is a primary Veteran Service Organization (VSO)
stakeholder and fully supports the Veterans Appeals Improvement and
Modernization Act of 2017 (P.L. 115-55), which is commonly referred as
``Appeals Modernization.'' The Department of Veterans Affairs' (VA)
appeals modernization has always had two components: (1) the
legislation establishing ``Appeals Modernization'' and (2) the efforts
to resolve the legacy appeals inventory. We fully support Appeals
Modernization and the Department's early efforts to resolve the legacy
appeals inventory through the Rapid Appeals Modernization Program
(RAMP).
The American Legion has the following comments regarding VA's 11-
20-2017 Comprehensive Plan for Processing Legacy Appeals and
Implementing the Modernized Appeals system (`the plan').
I. ENHANCING EXISTING INFRASTRUCTURE
The American Legion looks forward to learning about the U.S.
Digital Service's plan to build an enhancement in VA's Veterans
Benefits Management System (VBMS) so that previously adjudicated
``favorable findings of fact'' are tracked in a manner enabling VA
claims examiners in the future to avoid undertaking unnecessary claims
development and making erroneous decisions. This will support a key
provision in the legislation designed to protect the best interests of
our veterans while also streamlining VA's adjudication process.
II. VA's OUTREACH PARTNERSHIP WITH VSOs
The American Legion supports the VA's Veterans Benefits
Administration's (VBA) outreach efforts in promoting Appeals
Modernization. One example of the benefits of this flourishing
partnership, the October 2017 issue of The American Legion magazine,
featuring Appeals Modernization as the cover story, reached over 2
million member-readers. The purpose of the extended article was to
provide useful information to our members and explain the benefits VA
and The American Legion recognize for our veterans by virtue of the
options offered pursuant to the legislation. The American Legion has
worked cooperatively with VA to get monthly lists of veterans for whom
we hold power of attorney to the appropriate state department so that
our Department Service Officers can explain the benefits of each option
offered under the legislation for those who ``opt in'' to the new
system.
III. THE EFFECTIVENESS OF RAMP AS A PROGRAM DESIGNED TO TEST THE NEW
FRAMEWORK
While we note some criticism has been directed to RAMP, The
American Legion believes VBA's efforts are completely appropriate given
the complexities inherent in the transition from the legacy appeals
system to the Appeals Modernization framework.
Although the veterans whose appeals will be adjudicated under RAMP
will not have had the benefit of an enhanced notice letter based on the
decision which gave rise to the appeal, VA is addressing this by
ensuring that any decision rendered after the veteran opts in to RAMP
will include an enhanced notice letter fully in compliance with the
statutory requirement.
Moreover, criticism that RAMP does not offer an Expedited Lane to
the Board of Veterans Appeals (BVA) can be countered by noting that
veterans can make that election, though the law will not allow the
expedited BVA review before February 2019. So in both instances, VBA is
adopting the only procedures lawfully available during this
transitional period.
A. CAUTION ABOUT DATA PRODUCED BY RAMP
The American Legion offers comments regarding the fifth and sixth
paragraphs in VA's plan, as shared in VA Secretary Shulkin's Senate
statement on January 17, 2018, which suggest that RAMP will generate
data that allows VA to model what choices veterans will make in the new
appeals framework and how much effort it will take to process reviews
in the new framework. \1\ RAMP does not give veterans all the options
that will be available in the new framework. This is because a veteran
will not be able to choose the Expedited Lane to BVA until full
implementation of the statute in February 2019, although as noted a
veteran could choose this option knowing it would not be operational
for more than a year. In addition, the veterans whose appeals are
processed under RAMP unavoidably have not had the benefit of the
enhanced decision notice. Without the benefits of the enhanced decision
notice and without all options being available, the choices made in
RAMP will produce information about what veterans will do in the new
framework that is of only limited value. Therefore, The American Legion
urges caution in relying on the data compiled under RAMP as a predictor
of future behavior after the legislation is fully implemented.
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01172018
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B. HIGHER LEVEL REVIEWS UNDER THE LEGISLATION
The American Legion looks forward to learning of VBA's plans to
ensure that the higher level reviews are done in an appropriate manner,
looking carefully for any reasonable basis for granting the issue
sought on appeal. We trust that the issue of work measurement credit
will be carefully addressed in such a way that VA employees conducting
the higher level reviews are totally indifferent to whether the
decision is a grant or an affirmation of the prior denial based on work
credit considerations. We also encourage VBA to have as many higher
level reviews as possible done by a station other than the one which
made the decision on appeal. This is to promote objectivity and
eliminate the possibility the higher level reviewer might be influenced
by a personal relationship with the VA employee who made the decision
under appeal. One additional comment would be for VBA and the BVA to
consider engaging in joint training to the extent feasible to foster a
common understanding as to how appeals decisions should be addressed
under the new appeals framework. For example, the American Legion staff
notes that the BVA routinely gives probative value to lay evidence
where appropriate and all due consideration to non-VA medical evidence,
whereas this is sometimes not the case with VBA claims examiners.
CONCLUSION
Secretary Shulkin's statement that the Veterans Appeals Improvement
and Modernization Act of 2017 is the most significant statutory change
in decades affecting the process is certainly true, and as a primary
VSO stakeholder, The American Legion supports this new law and the
efforts through RAMP to begin implementation. We fully intend to
support our VA partners in this transformative effort.
The American Legion thanks this committee for the opportunity to
elucidate the position of the 2 million veteran members of this
organization. For additional information regarding this testimony,
please contact Jeff Steele, Assistant Director of The American Legion
Legislative Division at jsteele@legion.org, or (202) 861-2700.
VETERANS OF FOREIGN WARS OF THE UNITED STATES (VFW)
JOHN TOWLES, DEPUTY DIRECTOR
NATIONAL LEGISLATIVE SERVICE
Chairman Roe, Ranking Member Walz and members of the committee, on
behalf of the men and women of the Veterans of Foreign Wars of the
United States (VFW) and its Auxiliary, I want to thank you for the
opportunity to present the VFW's views on the Department of Veterans
Affairs (VA) efforts in implementing appeals reform.
When the negotiation process began for what would come to be Public
Law 115-55, the Veterans Appeals Improvement and Modernization Act of
2017, it was made clear that the input and support of Veterans Service
Organizations (VSOs) was important to the success of the new appeals
framework. As we testified in May of 2017, our goal with this bill was
to build a process that placed the veteran first, was easy to navigate,
and protected a veteran's rights every step of the way. The VFW, along
with several other organizations, have long advocated for appeals
reform, and were honored to be a part of the process with the assurance
that the level of engagement that existed during the bills development
would be sustained after the bill became law.
However, once the legislation was passed, we began having concerns
almost immediately with how VA was planning to implement the new
appeals process. Not only did we feel as though the roll-out was hasty,
but reckless. As a result, in September of 2017, the VFW and the
Disabled American Veterans (DAV) sent a joint letter to Deputy
Secretary of Veterans Affairs Thomas Bowman expressing our major
concerns.
Some of the concerns cited in the letter included the proposed
speed of the roll out; the language used in the initial opt-in
notification letter and phone script; and the overall lack of
engagement that we, and nearly every other VSO involved in the crafting
of this legislation, had been afforded up to that point.
While VA has addressed some of the issues identified in the joint
letter, the VFW has lingering concerns with regard to the speed and
haste in which VA is implementing these changes and communicating with
our organization regarding the progress that has or has not been made,
and the data that supports that narrative.
As an organization that represents a large portion of appellants
with cases pending before the Board of Veterans Appeals (BVA), our
clients depend on us to provide the most accurate advice in order to
increase the chances of a successful outcome. We have been representing
veterans for more than a century and have a fairly good understanding
of how the system works. Having researched the possible impact of the
program on our clients, we have found that there are circumstances
where opting-in may actually be detrimental to the veteran.
Many of our clients have been waiting for years to have their cases
heard at BVA. They have invested time and energy into appealing their
claims, and many of them are appealing denials for extremely complex
issues. For our organization to recommend that they opt-in to a program
that is potentially faster, and may lead to their case being decided
more quickly, but may also lead to them losing their place in line at
BVA if they are denied in the first phase of the program, would be
irresponsible.
The most recent version of the eligibility notice refers veterans
who are interested in opting-in to contact their ``VSO, attorney, or
claims agent'' so that they can assist in determining the best option.
However, it is unreasonable to expect that we will be able to assist
them in this decision if we have almost zero knowledge of whether or
not the Rapid Appeals and Modernization Program (RAMP) is more
effective than the current appeals system.
We have attempted to conduct thorough due diligence so that we can
better inform our members and clients by engaging directly with VA
prior to making any recommendations. We have asked that they provide us
the tools and resources that we require to do the best job that we
possibly can, but we are often met with either silence or
hypotheticals. Given the current proven and documented success rates of
VFW appeals that are classified as legacy and the myriad of unknowns,
whether due to lack of participation by our clients or lack of interest
in sharing data from VA, all evidence points to a better chance of
success by not opting in at this time.
To be blunt, we have not been shown any evidence from VA, or anyone
else, that would suggest that RAMP will actually improve a veteran's
chance of a favorable outcome. As a result, the majority of our
nationwide cadre of professionally-trained, accredited advocates and
our BVA- based professional staff have declined to recommend
participation to our clients who have received eligibility notices to
participate in the program, and will continue to do so until we are
provided with more thorough data from VA.
During a Senate Committee on Veterans' Affairs hearing two weeks
ago, Secretary Shulkin reported that 75 percent of RAMP decisions ``are
going in favor of the veteran.'' While 75 percent may seem to indicate
RAMP is a good option for veterans, VA's testimony does not clarify how
many appeals were adjudicated and what VA defines as favorable. To VA,
issuing a zero percent service-connection may qualify as favorable. A
veteran would disagree if the decision is for a debilitating condition
that merits a higher rating. As a result, we have declined to recommend
participation in the program to veterans we serve who have received
eligibility notices, and will continue to do so until we are provided
with more thorough data from VA.
The VFW has yet to see empirical data that would otherwise change
our position. Should better communications and more reassuring
information be made known to us by VA, we would then be more able to
wholeheartedly recommend RAMP as a viable option.
VA has recently invited VSOs to participate in work group
discussions regarding RAMP implementation. The VFW is participating in
these discussions and hopes VA will include our input and
recommendations moving forward.
The VFW urges Congress and VA to properly resource VBA and the
Board of Veterans Appeals to ensure they are able to timely adjudicate
appeals from veterans who do not opt into the new appeals process, and
the potential influx of supplemental claims and higher level review
requests at VA Regional Offices. VA must be empowered to manage its
workload, and stakeholders must be properly informed if the new
framework to expected to succeed.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
THOMAS S. KAHN
DIRECTOR, LEGISLATIVE AFFAIRS
Chairman Roe, Ranking Member Walz, and Members of the Committee:
American Federation of Government Employees, AFL-CIO (AFGE) and its
National VA Council (NVAC) appreciate the opportunity to submit a
statement for the record on the January 30, 2018 hearing titled,
``Appeals Reform: Will VA's Implementation Effectively Serve
Veterans?'' AFGE represents more than 700,000 employees in the federal
and D.C. government, including 250,000 front line employees at the
Department of Veterans Affairs providing comprehensive benefits, health
care, and other critical services for veterans.
Chief among our concerns with the implementation of the ``Veterans
Appeals Improvement and Modernization Act of 2017'' has been its impact
on the 800 front line attorneys represented by AFGE and NVAC who work
at the Board of Veterans' Appeals, in particular the counterproductive
performance standards that went into effect on October 16, 2017. As we
stated in the attached letter sent to the Senate Veterans' Affairs
Committee, AFGE and NVAC continue to question the reasonableness of the
new standard. The 35% production increase in cases for each individual
attorney and the replacement of a credit based system with a case based
system have both had negative effects on attorneys meeting their
quotas.
At Chairman Mason's October 4, 2017 confirmation hearing, in
response to a question from Senator Hirono (D-HI) as to whether she was
willing to work with AFGE representatives to address the impact and
implementation of the new standards and their adverse impact on
workload, she answered ``absolutely.'' However, it appears that
Chairman Mason has not done so since getting sworn in. Based on this
answer, AFGE would like to know what steps the Chairman has taken to
date to address problems with the current standard and the backlog of
veterans' appeals.
Furthermore, in a response to a question from Senator Brown (D-OH),
Chairman Mason indicated she was open to considering whether to assign
cases to Board attorneys based on specialization to better utilize
attorneys' expertise. However, to the best of our knowledge, no such
considerations have been made, and the Board has not raised this issue
with AFGE representatives since that hearing.
In conclusion, AFGE respectfully urges members of the Committee to
ensure that Deputy Secretary Bowman, Chairman Mason, or a combination
of the two address the issue of performance standards for Board
attorneys during today's hearing, and the steps they plan to take to
set reasonable production standards for Board attorneys, and best allow
them to fulfill the mission of serving our nation's veterans.
I request that this statement and my attached letter to the Senate
Veterans Affairs' Committee be submitted for the record.
October 3, 2017
Chairman Johnny Isakson
U.S. Senate Committee on Veterans' Affairs
412 Russell Senate Office Building
Washington, D.C. 20510-6050
Ranking Member Jon Tester
U.S. Senate Committee on Veterans' Affairs
825A Hart Senate Office Building
Washington, D.C. 20510-6050
Dear Chairman Isakson and Ranking Member Tester,
I write to you today on the matter of Cheryl Mason's nomination as
Chairman of the Board of Veterans' Appeals. The American Federation of
Government Employees, AFL-CIO (AFGE) and its National VA Council
represent more than 700,000 employees in the federal and D.C.
government including 250,000 front line employees at the Department of
Veterans Affairs who provide vital care and services for our veterans.
This includes serving as the exclusive representation of the
approximately 700 attorneys who work for the Board of Veterans' Appeals
and will serve under the leadership of Ms. Mason, should she be
confirmed.
AFGE and its National VA Council do not take a position on Ms.
Mason's nomination to Chair the Board of Veterans' Appeals. However,
AFGE is deeply concerned about new performance standards for the
Board's attorneys that are scheduled to go into effect on October 16,
2017, and the negative impact these new standards will have on
attorneys' ability to perform their duties. AFGE is also deeply
concerned that this change in performance standards was made without
completion of the bargaining process, which is prohibited. AFGE would
like to know Ms. Mason's position on these new performance standards,
and how she plans to work collaboratively with AFGE to address concerns
about performance standards, new attorney training, inadequate systems
including the Veterans Benefits Management System (VBMS), equipment,
and office space that were raised by AFGE Local 17 President Douglas E.
Massie on September 11, 2017 in a letter to Secretary David J. Shulkin.
Under the previous standard, attorneys were expected to complete
125 cases in a calendar year. Based on the new standards scheduled to
go into effect later this month, Board attorneys would be expected to
complete 169 cases a year, which is a 33% increase from the previous
standard. This increase in production is being proposed despite that in
previous years, smaller increases in quotas were later withdrawn or
reduced because they were found to be unreasonable and had an overall
negative impact on the Board's mission. In turn, there is a strong
likelihood that there is a significant number of attorneys who meet the
current standard but would fail to meet the new standard, and would
either face termination or resign in lieu of termination.
This depletion of the workforce would further impede the ability of
the Board of Veterans' Appeals to process its caseload, exacerbate a
backlog of cases that already exceeds 150,000, and delay veterans
having their cases resolved. This is especially relevant when the Board
considers how it will backfill these positions, as it takes at least a
year for a board attorney to become proficient in processing cases, and
several years to truly master the requisite skill set. These personnel
losses would weaken the Board's ability to fulfill its overarching
mission of supporting veterans and accurately resolving their claims.
Therefore, AFGE asks the committee to ensure that any future Board
Chairman commit to work collaboratively with AFGE to address
performance standards, and achieve a reasonable set of standards for
Board of Veterans' Appeals attorneys that best serves veterans' needs
for quality and efficiency.
I respectfully request that this letter, and the attached letter
from Doug Massie, President of AFGE Local 17 be submitted for the
record.
Sincerely,
Thomas S. Kahn
Director, Legislative Affairs
American Federation of Government Employees, AFL-CIO
WHISTLEBLOWERS OF AMERICA (WOA)
STATEMENT OF MS. JAMIE FOX
Chairman Roe and Ranking Member Walz;
Thank you for this opportunity today to speak out on behalf of
veterans who are also VA employees. I am submitting this statement for
the record in cooperation with Whistleblowers of America (WoA) because
my situation is not unique. WoA has had several other veteran/VA
employees make this same claim about having their private information
weaponized. We are joining forces today in hope that this hearing will
give voice to those of us who have had our privacy invaded after
blowing the whistle on VA and to ask Congress, that as you consider
legislative reform for the Veterans Benefits Administration (VBA), that
you might also consider the need to further protect Claim or C-files
and to allow veterans/employees to know who has accessed their personal
information.
Let me begin by saying that I come from a long line of family
members who have served in the military as far back as the
Revolutionary War and who are currently serving in the military. I also
served honorably for five years in the U.S. Navy. When I volunteered to
serve in the military and civil service I did not volunteer to be
subjugated to the unethical and illegal abuse of public office power.
Since coming forward in 2008, as a witness for a former co-worker who
was being harassed - in order to help her stop the harassment - I have
been continuously harassed, punished, and retaliated against by the
same people who protected the perpetrator. When I came forward that day
in 2008, I thought there were laws that protected me. I utterly had no
idea that such a simple gesture, like caring for the dignity of another
human-being, would have such severe and far reaching negative
consequences. What is and has been happening to me is unethical and
illegal. Not only is it a breach of privacy, but it is also a breach of
trust.
It is a disgrace when the very people who defend the rights of the
American people do not have those same rights at the VA, particularly
the right to have our private information protected from the people who
we do not want to access our private information.
Many veterans wrongly believe their private information, which
includes Personally Identifiable Information (PII) and Sensitive
Personal Information (SPI) is protected by privacy laws, but at the VA
this belief couldn't be further from the truth. Veterans' PII and SPI
have more protection in the civilian sector because there are very real
and serious consequences for privacy violations, but there appears to
be very little recourse for veterans whose privacy is violated by
government officials at the VA.
According to Deven McGraw, Director of the Washington-based Health
Privacy Project of the nonprofit center for Democracy and Technology,
the VA remains one of the top Health Insurance Portability and
Accountability Act of 1996 (HIPAA) privacy offenders. In April 2015,
the Office of Special Counsel Director, Carolyn Lerner, testified in
Congress that the prevalence of privacy violations at the VA has become
an epidemic.
VA Office of Inspector General (OIG) released a report April 2016,
in which the VBA had not integrated proper audit logs in their new
veterans' claims processing computer system, called Veterans Benefits
Management System (VBMS). In fact, VBA failed to establish satisfactory
system requirements in VBMS that would ensure that accurate audit logs
were created. Without accurate audit logs, Information Security
Officers cannot effectively identify, report, and react to data
security issues in VBMS. OIG discovered VBA cannot detect if an
employee improperly accessed a claim and that VBMS was not compliant
with audit log procedures and regulations. Further OIG reported that
the security vulnerability occurred because the Office of Business
Process Integration did not create system requirements in VBMS to
assure audit logs could accurately pinpoint security violations. It
assumed that the audit log functionality was already built into VBMS as
it was for the legacy claims processing systems.
The VBA is required by several regulations (e.g., Federal
Information Processing Standards Publication) to develop, sustain, and
retain audit records to supervise, analyze, and report on inappropriate
access of information systems. The VBA must also develop the capability
to monitor the actions of individual users. VBA's own VA Handbook
states that information systems are required to create detailed audit
logs that can help recreate a data security incident.
As a veteran using the VA system, I recently discovered that I have
absolutely no control over my private and protected information, and
that VA managers have carte blanche to everything with impunity! Anyone
who has access to VBMS with a few strokes of the keyboard can view over
30 years of information about me, from anywhere in the country,
including from someone's living room.
No person, not even a government official, should have that much
access to so much information about a person's past and present life
history, especially VA employees who are known to be unscrupulous. No
manager or former manager or co-worker should have access to so much
information about their employees or co-workers, especially the people
who were responsible for forcing my resignation and who I testified
against for protecting the man who I witnessed harassing a co-worker.
What I say to my doctor is no one else's business unless they
absolutely have to view the information and were authorized to view the
information. It is my right to see who has accessed my private
information and it is my right to restrict who sees my information.
It is incomprehensible to think the VBA failed to build in
safeguards in its highly touted computer program, which was allegedly
designed to make processing veterans' claims more efficient, but cannot
restrict certain VBMS users from accessing specific claim files, except
through an antiquated security system that was designed to control
paper files. This antiquated security system allowed and continues to
allow people, like my former managers and co-workers, access to my
protected information. It also allows managers and employees to snoop
on current VA veteran employees and co-workers.
It's easier to conceptualize the outdated security control system
as a pyramid, scaled 1 to 9, where 9 has the most restriction. The
higher the sensitivity level, the fewer people who can view the C-file.
The higher the sensitivity level the fewer people there are to help a
veteran with their C-file. C-files that are classified at sensitivity
level 8 and above cannot receive help from the public contact line and
Veterans Service Organizations, even with simple tasks, like changing
an address. The only way someone would not be able to view a C-file is
if they did not have access to a particular sensitivity level. For
example, if you are authorized to view sensitivity level 7 C-files then
you could view C-files classified at sensitivity level 7 and below.
Obviously, anyone who does not have a sensitivity level 7 clearance
would not be able to view C-files classified at sensitivity level 7 and
above. Managers can also authorize other managers or employees,
depending on the sensitivity level, to work on a C-file classified at a
higher sensitivity level for a limited time. So, as you can see, it
really does not matter what sensitivity level a veteran's C-file is
classified at, if VA managers can work around existing security
features.
VA leadership is misrepresenting the capabilities of the Restricted
Access Claim Center (RACC) at the St. Paul, Minnesota Regional Office
(and other RACC locations) regarding the restrictions related to
managers and co-workers from accessing a current or former employee's
veteran C-file. I was told once my C-file obtained RACC protection that
the Oakland VA Regional Office would no longer have access to my C-
file. I disproved this claim when I scheduled an appointment to review
my digital C-file at the Oakland VA Regional Office. I witness with my
own eyes how Oakland managers can still access my private information.
It appears the RACC only restricts people from making changes to a C-
file.
I was also told by several VBA employees that if a co-worker or a
manager accesses a veteran employee's C-file, an alarm gets set off -
that some employees have referred to as a ``ping'' - at the VA's Office
of Information and Technology (OIT). However, I have spoken with
several people from OIT and was informed there was no such ``alarm'' or
notification when someone who does not have authorization accesses a C-
file.
I have been trying for several months to obtain a list of every
person who has ever accessed, viewed, and/or queried any part of my C-
file. It is every veteran's right to know who has been viewing their
private information. The VA promised me I would receive an unredacted
audit. However, the list the VA sent me was incomplete. There were many
missing names and dates. VBA claimed that those were all the people and
dates that they could find. However, I have evidence proving otherwise.
When I informed the VA, in October 2017, of the missing names and
dates, I was told the VA would look further into it. I have not
received anything to date from this October request. When I recently
requested a status update on the audit of my C-file, I was told that VA
FOIA requests were backlogged. I originally informed VA leadership in
Washington DC of the privacy violation in early July 2017, as well as,
requested an audit of my C-file at that time.
The person who is currently scrubbing the audit list of my C-file
is the Director of the RACC, Ms. Kim Graves who totally disregarded my
letter asking for RACC protection and assigned my C-file to the Oakland
VARO, against my permission. When I asked OIT why they could not
directly mail me the audit, I was informed that OIT ``had'' to send
audits to the director of the regional office that has jurisdiction
over my C-file. This absolutely makes no sense at all. Having the VA
patrol itself is like having a fox guard the hen house. As you already
know, Kim Graves has demonstrated her lack of integrity, so it is
difficult to have confidence in her abilities. She and Diana Reubens
are also tight with some of the Oakland VA regional office managers who
are using the VA system to retaliate.
VA leadership has been informed that my former managers and co-
workers at the Oakland VA Regional Office retaliated against me by
trying to use my C-file against me. Yet nothing has been done about it,
no one has been held accountable, no one has been prevented from
accessing my C-file and hardly anyone returns my communication. I am
having difficulty obtaining help from both VA employees, or the
Veterans Service Organizations, not because they do not want to help
me, but because, as they all put it, and quite frankly I have lost
count on the number of people who have told me this, they are all
afraid to help me for fear that they will be targeted like me; they are
afraid of being ``blacklisted'' or ``blackballed'', they fear they will
lose their job and/or VA benefits.
What does it say about our country when veterans are afraid to
speak out against unethical and illegal practices at the VA for fear of
retaliation? I have a lot of support in the shadows, but no one has
been willing to step out into the light and be my champion, because it
is seen as a fruitless mission; instead of creating meaningful change,
the mission would be more like falling on one's sword. I am grateful to
have found Whistleblowers of America because they understand
whistleblower retaliation and are willing to give me a voice today.
We ask that Congress act on behalf of veterans so that they can
obtain an accurate audit of a his/her C-file and to protect veterans'
privacy. The solution to update VBA's security control system for
digital C-files is to have Congress legislate new laws that can make
VBA do so. The VA cannot be trusted to fix this security problem,
because VA directives, memorandums, and protocols can be changed by the
VA at any time, as well as, their interpretation and adherence to their
own made up rules. A well written law minimizes ambiguity and ensures
adherence and accountability.
I started a petition on Change.org, called ``Protect Jamie's
Private Medical Info from Her Former VA employers and Make Them
Accountable,'' so I could get the attention of our legislatures. (I am
represented by Representative Mike Thompson and Senator Kamala Harris
who are aware of my situation.) I was told I would gain the ear of
Congress if I could obtain at least 100,000 signatures. Although this
petition has my name on it, protecting veterans' privacy is not just
for me, but for every veteran
Every veteran has a right to know, in a timely manner, who has been
viewing their private information and why. There must be an enforceable
law to deter people from accessing a veteran's C-file without first
having authorization or permission by the veteran. Congress can pass a
law that make each veteran a watchdog over their own C-file by
releasing unredacted audits of their C-file immediately upon request
and whenever requested. Audit logs could be readily accessed at any
time via the eBenefits portal, which would show the veteran via live
coverage, who is and has been viewing their protected information.
Congress should pass a law that require the reporting of privacy
violations to be made easy and efficient, as well as, hold VA managers
and employees accountable for privacy violations. Congress should pass
a law that make sure VBMS and any other VA computer system has
functional and accurate audit logs that can accurately pinpoint
security violations.
Thank you for your time and consideration.
Whistleblowers of America is a 501C3, EIN 82-3989539. Its mission
is to provide peer support to employees and veterans who have reported
wrongdoing and experienced retaliation.
Jamie Fox is a whistleblower from Oakland, CA who reported
harassment of a co-worker and suffered retaliation while working in the
Oakland Regional Office. She is currently employed at another VA
facility. This statement is made on her own time and not representative
of the VA.
[all]
| MEMBERNAME | BIOGUIDEID | GPOID | CHAMBER | PARTY | ROLE | STATE | CONGRESS | AUTHORITYID |
|---|---|---|---|---|---|---|---|---|
| Bilirakis, Gus M. | B001257 | 7881 | H | R | COMMMEMBER | FL | 115 | 1838 |
| Walz, Timothy J. | W000799 | 8001 | H | D | COMMMEMBER | MN | 115 | 1856 |
| Coffman, Mike | C001077 | 7864 | H | R | COMMMEMBER | CO | 115 | 1912 |
| Roe, David P. | R000582 | 8148 | H | R | COMMMEMBER | TN | 115 | 1954 |
| Brownley, Julia | B001285 | H | D | COMMMEMBER | CA | 115 | 2106 | |
| Takano, Mark | T000472 | H | D | COMMMEMBER | CA | 115 | 2110 | |
| Peters, Scott H. | P000608 | H | D | COMMMEMBER | CA | 115 | 2113 | |
| Esty, Elizabeth H. | E000293 | H | D | COMMMEMBER | CT | 115 | 2114 | |
| Kuster, Ann M. | K000382 | H | D | COMMMEMBER | NH | 115 | 2145 | |
| Wenstrup, Brad R. | W000815 | H | R | COMMMEMBER | OH | 115 | 2152 | |
| O'Rourke, Beto | O000170 | H | D | COMMMEMBER | TX | 115 | 2162 | |
| Bost, Mike | B001295 | H | R | COMMMEMBER | IL | 115 | 2243 | |
| Poliquin, Bruce | P000611 | H | R | COMMMEMBER | ME | 115 | 2247 | |
| Rice, Kathleen M. | R000602 | H | D | COMMMEMBER | NY | 115 | 2262 | |
| Dunn, Neal P. | D000628 | H | R | COMMMEMBER | FL | 115 | 2315 | |
| Rutherford, John H. | R000609 | H | R | COMMMEMBER | FL | 115 | 2316 | |
| Banks, Jim | B001299 | H | R | COMMMEMBER | IN | 115 | 2326 | |
| Higgins, Clay | H001077 | H | R | COMMMEMBER | LA | 115 | 2329 | |
| Bergman, Jack | B001301 | H | R | COMMMEMBER | MI | 115 | 2333 | |
| Arrington, Jodey C. | A000375 | H | R | COMMMEMBER | TX | 115 | 2350 |
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