Attached is a letter I received by email.
Call the House and Senate Veterans affairs committee and ask about this
This is a Nationwide issue at every regional office
Starting October 17, 2005, The employee performance requirements ( numbers of claims out the door)at VA regional offices nationwide went up 25 -75% without justification.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Affiliated with the AFL-CIO
P.O. BOX 99511
CLEVELAND, OHIO 44199
Phone (216) 522-3530, ext 3021
Fax # (216) 522-2484
October 31, 2005
The Honorable Lane Evans
Ranking Democratic Member
Committee on Veterans Affairs
House of Representatives
Dear Mr. Evans:
I've recently read GAO report 06-46 which illustrates the VA's attempt to address a narrow but significant failure in the overall claims process, namely addressing the Deluca requirements in how VBA (Veterans Benefits Administration) orders medical exams from VHA facilities and VHA (Veterans Health Administration) medical exam processing. The GAO report appears to be a balanced summary of the Department of Veterans Affairs actions in response to the Court Decision in Deluca. However, the report does not address the fundamental policy failures and individual difficulties encountered to truly request and provide a good VA exam. The purpose of this letter is to address fundamental flaws in the claims decision-making process which were either unavailable to the GAO or not addressed in the GAO report.
Deluca v. Brown, 8 Vet. App. 202 (1995): Held that medical evidence was necessary to determine the extent of a disability to include functional loss due to pain or flair ups.
VCAA: Veterans Claims Assistance Act of 2000. Fundamentally changed the burden of developing the evidence of a claim to the VA prior to a decision to include ordering a VA exam if necessary to decide the claim. Formerly, the veteran had the burden of providing a medical opinion as to the cause and extent of his/ her disability.
CPI: Claims Process Improvement. Work flow model that divides VA Regional Office Employees in the Veterans Service Center into 5 functional teams. For the narrow purpose of this letter, the model incorporates significant work flow changes to lower graded employees to make determinations of the applicability of Deluca and VCAA to each veteran’s claim.
DRO: Decision Review Officer. A GS 13 graded employee who has denovo authority over a first level appeal on a disability claim.
RVSR: Rating Veteran’s Service Representative also known as a Rating Specialist. A GS 12 graded employee who reviews and decides a veteran’s disability claim based on the evidence of record.
VSR: Veteran’s Services Representative. Primarily a GS 10 graded employee who inputs the veterans claim, assembles the evidence of record and forwards the developed claim to the appropriate decision maker.
1) VA policymakers have repeatedly stated political goals of reducing the claims backlog. Yet per GAO 05-47, they have been unable to articulate and justify staffing levels or articulate projections based on workload and claims complexity. If the VA cannot justify to Congress its budget, based on workload and claims complexity, it cannot reasonably make policy decisions and expect the down stream end result to be an accurate decision on a disability claim.
2) Since 2002 CPI has been fully implemented. In large part, CPI calls for VSR's to review the claim and determine a) whether the veteran is entitled to exam and ;) which examine to order. (Some authority to deviate from this has been recently extended to the Regional Offices.)
3) This plan is inherently faulty on multiple levels. It assumes VSR’s have an in-depth understanding of medical terminology and body systems. It assumes VSR’s are trained in and understand the Rating Schedule and 38 CFR part Three to determine the presupposing medical question to be presented on an exam if one is called for in either a claim for service connection or a claim for increased evaluation of the condition. Example 1) Veteran has a single incident of an acute back injury in-service. Ten years later he files an original claim for this condition with possible intervening post service injuries, examine or not? Example 2) If the veteran had intervening injuries post service, what exam question or questions do you ask of the examiner? Especially for example number two, only the RVSR is properly trained and can formulate a theory of the case and theory of entitlement to properly ask the question of the VA examiner based on the assembled evidence By assigning the exam ordering role to VSR’s, CPI fails to have the appropriate focus on quality at the initial stages of a claim and can send the claim down a completely inappropriate theory of entitlement path and frequently causes substantial rework of the claim.
4) Training at VA Regional Offices is haphazard at best. Satellite broadcasts and training presented by Central Office is not mandatory for all decision-makers. Further, different categories of workers will receive different types of training on the same issue and training that is inconsistent with training previously provided. Example, RVSR's may be provided one set of rules or guidelines during internal training, VSR’s who order exams will be given another set of guidelines or rules on the same issue by Central Office satellite broadcast. Both groups are not on the same page and an exam may have to be sent back as inadequate adding unnecessary delay based on the disparity of training. I have read the notarized press briefing of Secretary Nicholson, Mr. Griffin, VAIG, and DUSB Cooper. I'm particularly troubled by the statements beginning on page 21 line 2 and on page 49 line 22 by DUSB Cooper: “ We have, and will continue, to emphasize oversight and training – two things are absolutely paramount in order to take care of problems like this." And " But again, even my raters are people. And so we try to train them and train them and train them. We try to get experience, keep that experience, and move on.", respectively. The alleged training that DUSB Cooper relates, is in no way reflective of what actually happens in the majority of regional offices which I have knowledge about.
5) VSR’s have a tremendously import function in appropriately assembling and developing the evidence of record prior to a decision. In general, placing the additional function of crafting an exam request is beyond reasonable with the other duties they are expected to perform. Based on their already important and heavy work load, the majority of VSR's tend to rely on exam templates by rote and fail to understand the critical importance of identifying the exact medical condition in order to formulate the legal/medical question necessary to make a determination on the claim or condition. Further, in order to pose the necessary question to the examiner, at least one theory of entitlement must be presupposed in order to correctly articulate the exam question. Failure to presuppose an appropriate theory of entitlement inherently leads to a flawed Rating Decision or necessitates a new exam asking the correct question, which delays the claim and increases the overall workload. Or the more sinister method is pressure the RVSR's to rate the claim based on flawed medical evidence and let the veteran appeal the decision. This reduces the overall inventory quickly and places the affirmative burden on the veteran to appeal.
6) VHA's "fully successful" exam performance of 64% for 2005, still means that more than one third of all exams are inadequate for rating purposes. This number was reportedly met in third-quarter 2005. However, the overall result is far worse than reflected even by this low and poor performance goal. Example 1, RVSR's are pressured to rate a case based solely on production or current regional office requirements. This masks cases that should have been returned as inadequate for a technically correct or affirmative statement by the medical examiner. The end result of this policy is usually detrimental to the veteran. Example 2, RVSR's have been strongly encouraged to send a case back informally first, highlighting the errors, without formal recording of the error.
7) VHA has failed to take affirmative action on exam providers who make repeated errors so that the vast majority of all exams that they provide are inadequate for rating purposes. This leads to either a) RVSR's to "give up" in trying to fix the case and creating a rating decision based on inadequate evidence provided by the examiner or the RVSR sending back an unusually high number of inadequate exams to where he gets his supervisor's attention and the attention of the medical center for making them look bad.
8) Deficiency in regional office exam requests stems from one primary issue. Quantity produced by each regional office vastly outweighs the quality requirement in performance measurement. By the provisions of CPI, the appropriately trained employee’s are not ordering the initial VA exam. The lesser trained employee’s have little incentive to get it right because the process foists the results of a poor exam to the RVSR. This provides a condition known in economics as a "market failure" and sends the entire claims process into a downward spiral of completing claims that are fundamentally flawed and letting the veteran get frustrated, appeal the flawed decision and filing new claims. It has been an often repeated inventory reduction tactic by VA managers and supervisors articulated to VBA employee’s as ‘just get the claim done and let the veteran appeal’, knowing full well that the decision is flawed under law, regulation and internal policy. It is an often repeated statement that less than 10% of veterans appeal their decision therefore just getting the claim done by hook or crook has little negative impact on the agency in reporting its annual performance. Instead, VA policy makers boast about the number of claims completed, regardless of due process errors.
9) For decision-makers, DRO’s and RVSR's, the difficulty in the work lies in reviewing the evidence, presupposing a theory or several theories of entitlement, determining if a medical opinion or evaluation is necessary, applying the aforementioned to the appropriate statutes and regulations and writing a decision that is technically correct and understandable to the lay veteran. RVSR's only receive "production points" based on the number of decisions they write. No points are earned for review of the case and return the case to others for additional directed development. Or, reviewing the case and determining that an exam is still necessary when one was previously completed or determining that the exam completed is inadequate. While the rating specialist does not receive work credit for this, he or she is responsible for the quality and technical correctness of the entire decision. Should one link in the chain break, the entire resulting decision on the veteran’s disability decision is likely flawed. This creates undue pressure on the RVSR to get cases done whether they are correct or not in order to maintain employment. Management purposely plays on this issue to get cases out the door and subdue employees who placed legal accuracy and quality over quantity. This is reflected in that the electronic system used to record an individual employee’s production, currently ASPEN and formerly PROSTAR as they have no provision for recording and weighing additional actions other than an actual rating decision. Essentially, those actions are considered too minimal to report and have a weight assigned, according to VA policymakers. This further obscures the substantial rework necessary to provide full Due Process rights to our veteran’s and their claims.
10) The Veterans Claims Assistance Act of 2000, also known as VCAA was codified under 38 USC 5103A and implemented under 38 CFR 3.159 (2001). This act placed the affirmative duty on the Department of Veterans Affairs to fully develop each claim, unless the claim meets certain very minimal procedural requirements, such as the veteran failing to provide the certain minimal information or if the claim is inherently incredible such as; if the veteran claimed a service connected disability due to interstellar travel. While the affirmative duty to develop a claim correctly is on the Department of Veterans Affairs and individual DRO’s, RVSR's and VSR's, should that not occur, the current case law reflects the veteran is out of luck if he does not appeal. Therefore, the Department of Veterans Affairs incurs no liability for faulty claims development outside of the appeal period.
11) Individual veterans and Veterans Service Organizations as a whole should have no confidence in receiving a technically correct, legally accurate, and an equitable rating decision when the entire system contains institutionalized, unaddressed fundamental flaws in applying Due Process under law. The main recourse of VA policy makers is to place the affirmative duty on the veteran to appeal his or her individual claim. While VA policy makers lament a veterans seemingly inexhaustible appeal rights, they fail to address how their policies and decisions do nothing but further the veterans reason and likelihood to appeal. Namely, some component of the decision is very likely fundamentally flawed and the flaw will not be corrected without the veterans appeal or multiple appeals.
12) Unfortunately, the end result is that the individual VBA employee is held accountable by supervisors for quality of work and local supervisors are held accountable by VBA policy makers for quantity produced as the entire claims process is geared to getting cases completed by hook or crook. This leads to great employee dissatisfaction, adverse employment actions and a general disgust by Regional Office employees and supervisors in the method of operation of the VBA in providing a quality decision on veteran’s benefits.
The veteran’s claims decision-making process is fundamentally flawed without correct VA exams. The current system of ordering exams and measuring quality is a slight improvement, but fails to address the fundamental underlying problems such as the inverse relationship between quantity and quality, training, workflow and which employees or category of employees are capable of, or should do the assigned work. Each discrete decision by every decision maker on an individual veterans claim, is pressured by the Department of Veterans Affairs, management-emphasis on quantity over quality. Without the careful step-by-step analysis of the workflow as it relates to Due Process under law, the Department of Veterans Affairs will never be able to provide fundamentally correct initial decisions to a high a majority of veterans, or reduce its pending claims inventory.
Suggestions for improvement:
1) Eliminate VBA's quantity above all else mantra.
2) Realign VBA's top priority to: a) individual decision quality (adherence to law) & :( individual decision timeliness.
3) Complete a longitudinal detailed workload analysis of the entire decision-making process by policy makers who understand the implementation of due process under law, not widgets on an assembly line.
4) Use the workload analysis to design an equitable performance standard for all VBA employee’s so that each discrete mandatory act necessary to produce an environment where legally and equitably correct claims decision are fostered.
Again, I offer this letter as informative of what I see going on behind the scenes and urge you to take the necessary actions in Congress to properly serve both the veteran in gaining all benefits entitled to under law and the taxpayer so that his or her tax dollars are well spent.
If you need additional information, please contact AFGE Local 2823, we will be glad to assist you.
Joel Waldman, President
AFGE Local 2823
VA Regional Office, Cleveland