[Senate Hearing 117-146]
[From the U.S. Government Publishing Office]
S. Hrg. 117-146
SUPPORTING DISABLED VETERANS:
THE STATE OF CLAIMS PROCESSING
DURING AND AFTER COVID 19
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HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
MAY 12, 2021
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Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-693 PDF WASHINGTON : 2022
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COMMITTEE ON VETERANS' AFFAIRS
Jon Tester, Montana, Chairman
Patty Murray, Washington Jerry Moran, Kansas, Ranking
Bernard Sanders, Vermont Member
Sherrod Brown, Ohio John Boozman, Arkansas
Richard Blumenthal, Connecticut Bill Cassidy, Louisiana
Mazie K. Hirono, Hawaii Mike Rounds, South Dakota
Joe Manchin III, West Virginia Thom Tillis, North Carolina
Kyrsten Sinema, Arizona Dan Sullivan, Alaska
Margaret Wood Hassan, New Hampshire Marsha Blackburn, Tennessee
Kevin Cramer, North Dakota
Tommy Tuberville, Alabama
Tony McClain, Staff Director
Jon Towers, Republican Staff Director
C O N T E N T S
----------
Wednesday, May 12, 2021
SENATORS
Page
Tester, Hon. Jon, Chairman, U.S. Senator from Montana............ 1
Moran, Hon. Jerry, Ranking Member, U.S. Senator from Kansas...... 2
Boozman, Hon. John, U.S. Senator from Arkansas................... 10
Sinema, Hon. Kyrsten, U.S. Senator from Arizona.................. 21
WITNESSES
Panel One
Thomas J. Murphy, Acting Under Secretary for Benefits, Veterans
Benefits Administration, Department of Veterans Affairs;
Accompanied By Willie C. Clark, Sr., Deputy Under Secretary for
Field Operations, Veterans Benefits Administration and Toby T.
Mathew, Chief Officer, Office of Disability and Medical
Assessment, Veterans Health Administration..................... 3
Panel Two
Elizabeth Curda, Director, Education, Workforce and Income
Security, Government Accountability Office..................... 13
Ryan Gallucci, Director, National Veterans Service, Veterans of
Foreign Wars of The United States.............................. 14
Shane Liermann, Deputy National Legislative Director, Disabled
American Veterans.............................................. 16
Carmen McGinnis, National Service Officer, Disabled American
Veterans....................................................... 18
Witnesses Prepared Statements
Thomas J. Murphy, Acting Under Secretary for Benefits Veterans
Benefits Administration, Department of Veterans Affairs........ 26
Elizabeth Curda, Director, Education, Workforce and Income
Security, Government Accountability Office..................... 33
Ryan Gallucci, Director, National Veterans Service, Veterans of
Foreign Wars of the United States.............................. 46
Shane L. Liermann, Deputy National Legislative Director of the
Disabled American Veterans..................................... 53
Carmen McGinnis, National Service Officer, Disabled American
Veterans....................................................... 64
Questions for the Record
Questions for the Record submitted by
Hon. Sanders................................................... 70
Hon. Brown..................................................... 78
Hon. Hirono.................................................... 80
Hon. Sinema.................................................... 83
Hon. Blackburn................................................. 86
Statements for the Record
American Federation of Government Employees, AFL-CIO............. 90
National Association of County Veteran Service Officers.......... 98
Paralyzed Veterans of America.................................... 102
Marty Callaghan, Deputy Director, Veterans Affairs &
Rehabilitation Division, The American Legion................... 106
Military Sexual Trauma Resources................................. 111
SUPPORTING DISABLED VETERANS:
THE STATE OF CLAIMS PROCESSING
DURING AND AFTER COVID-19
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WEDNESDAY, MAY 12, 2021
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3 p.m., in room
253, Dirksen Senate Office Building, Hon. Jon Tester, chairman
of the Committee, presiding.
Present: Tester, Brown, Sinema, Hassan, Moran, Boozman,
Cassidy, Rounds, and Sullivan.
OPENING STATEMENT OF CHAIRMAN TESTER
Chairman Tester. I want to call this meeting to order, now
that the Ranking Member is in the room. I would just say today
has been a pretty screwed-up day, so I am going to apologize to
the folks who are testifying right now, because we have got
votes at 3:30, and Senator Moran and I will probably be handing
the gavel off to one another to get through these votes
together. But I want to tell you that this is, as with all of
our hearings at the VA Committee, it is very important, so I
want to say good afternoon. Thank you for being here today.
Last year the VBA provided compensation to over 5 million
disabled veterans and survivors. Unfortunately, COVID-19 has
hampered VBA, leading to hundreds of thousands of backlogged
claims.
With the funds Congress provided in the American Rescue
Plan, VA anticipates getting back to pre-COVID numbers by late
next year. I am concerned, however, that next year is not soon
enough for disabled veterans weathering the storm of this
pandemic.
I am also concerned that as VBA concentrates on speed, it
risks sacrificing quality. Disabled veterans must have
confidence that their claims will be fairly and accurately
decided. Last year's removal of the 48-hour review period is an
example of when VBA, when obsessed with speed, removed a
veteran's ability to correct the error before a final decision
was made. Now, look. Everybody appreciates quickness, but
forcing vets to appeal errors makes them wait longer, and,
quite frankly, it is a nonstarter.
So when it comes to renewing VBA's focus on disabled
veterans, we have got some work to do. GAO, for example, has
consistently highlighted gaps in VBA's oversight of contract
examiners. The quality of an exam can make or break a victim's
claim. If VBA cannot guarantee the accuracy of contract
examiners, well, quite frankly, then we probably should not be
using them.
The IG also found significant issues with how VBA processes
specialty claims. If VBA cannot guarantee it fairly accounts
for all the complexity of a disabled veteran's claim, then we
need to take a look at the process and change it.
Toxic exposure veterans exhibiting symptoms years after
deployment are second-guessed. Veterans bearing invisible
wounds from military sexual trauma are held to an impossibly
high evidence standard. And VA must take the time to carefully
account for all the circumstances surround a claim, instead of
treating our warriors like widgets.
In short, VBA must make the process more veteran-focused
and less adversarial. I look forward to this hearing on how VBA
can improve its practices so that our disabled veterans are
better served, long after this pandemic.
With that I will turn it over to you, Senator Moran.
OPENING STATEMENT OF SENATOR MORAN
Senator Moran. Chairman Tester, thank you. I am eager to
hear from our witnesses today. Thank you for being here.
VBA is often the first connection that veterans have with
the Department of Veterans Affairs, as they transition out of
the military, but it seems to me they are often overlooked, can
be overlooked, when we take into account the mammoth health
administration that has been providing health care to our
disabled and ill veterans.
Over the last 14-plus months, our country has faced
unprecedented challenges due to the pandemic. The adversity
provides an opportunity for us to evaluate vulnerabilities in
our system, reflect on what has worked, and make improvements
for the future.
As we discuss VBA's pandemic response today, I want to hear
what VA, and VBA specifically, learned throughout these
unprecedented times and how we can continue some of the best
practices to bring modern-day solutions and services to our
veterans on an everyday basis.
Mr. Murphy, today's hearing is an opportunity for you and
your colleagues to discuss the work VBA is now conducting to
address C&P backlog that has accrued due to COVID-19
limitations, both through internal VHA exams and through
contract medical disability exams. I know many of my colleagues
are concerned with the quality of contract exams. Still, I want
to discuss how they have assisted in the backlog over the years
and how they will continue to assist in the backlog created by
the pandemic.
I want to thank the VBA and its employees for their ongoing
work, whether it is the office or via teleworking, to get
claims developed and adjudicated, such as ACE exams and
telehealth exams, in innovative ways to do what is best for our
veterans in an already stressful climate.
I would also like to discuss GAO's findings that illuminate
how claims associated with military sexual trauma, traumatic
brain injury, and Gulf War illness are twice as likely to be
returned to both VHA and the contractors for additional
information before making a decision.
Last, I look forward to hearing from the VFW and DAV who
are here with us today and are the boots on the ground when it
comes to assisting veterans in filing their claims. You all
have seen first-hand some of the difficulties in claim filing
during COVID, and the changes VBA has made to adapt to the
pandemic.
Chairman Tester, thank you. Thank you for holding the
hearing. I look forward to working with you today and in the
future, and I yield back.
Chairman Tester. Senator Moran, thank you for your
comments. Today's hearing is going to consist of two panels. In
the first panel we are going to hear FBA on how it navigated
COVID-19 challenges to process claims from disabled veterans,
so I will get to that panel in a second.
In the second panel, we will hear from Government
Accountability Office and veteran service organizations about
certain issues with the disability compensation process.
But now back to the first panel. I want to introduce Thomas
J. Murphy, Acting Under Secretary for Benefits, and with Under
Secretary Murphy is Willie C. Clark, Sr., VBA Deputy Under
Secretary for Field Operations, and Toby T. Mathew, the Veteran
Health Administration's Chief Officer for the Office of
Disability and Medical Assessment. Secretary Murphy, the floor
is yours.
PANEL I
STATEMENT OF THOMAS J. MURPHY; ACCOMPANIED BY WILLIE C. CLARK,
SR., AND TOBY T. MATHEW
Mr. Murphy. Chairman Tester, Ranking Member Moran, and
members of the Committee, thank you for the opportunity to
testify today about the current State of the Veterans Benefits
Administration, and in particular, our efforts to continue
providing the benefits and services our veterans deserve----
Chairman Tester. I need to get you to turn on the mic. I am
sorry. And then I need to get you to start over.
Mr. Murphy. Right from the top? Yes, sir.
Chairman Tester. Yes. Thanks.
Mr. Murphy. It was sounding so good there too. Chairman
Tester, Ranking Member Moran, and members of the Committee,
thank you for the opportunity to testify today about the
current State of the Veterans Benefits Administration, and in
particular, our efforts to continue providing the benefits and
services our veterans deserve during the unprecedented COVID-19
pandemic.
Despite the challenges presented by the global pandemic,
VBA has maintained its focus on serving veterans and their
families. We continue to deliver benefits and services while
working to establish our post-pandemic normal operations and to
address the long-term challenges presented by COVID.
I am pleased to report that during the pandemic, VBA has
served and continues to serve more veterans and their families
while improving the accuracy of completed disability claims. At
the onset of the pandemic, VBA leveraged mass telework in order
to minimize the exposure to both veterans and employees. Our
longstanding commitment to IT modernization and our
digitization efforts made the transition from office to home
seamless.
As you are aware, VBA suspended all in-person medical
examinations to protect the safety and health of both VA
employees and veterans. We revised claim processing procedures
to allow veterans to wait for in-person examinations with the
assurance that no final action, including a denial, will be
taken on their claim until an in-person examination can be
completed.
These procedures are still in place today. Additionally, we
completed as many virtual examinations as possible, utilizing
telehealth technology and VA's acceptable clinical evidence
process. VBA expanded the use of ACE and increased the number
of eligible telehealth examination types from 19 to 34
examinations.
At the end of Fiscal Year 2020, VBA resumed in-person
examinations nationwide, and earlier this Fiscal Year expanded
the use of VHA in-person examinations. VBA and our partners
continue to work closely to expand examination capacity and
plan to return to normal working inventory levels of about
140,000 examinations by the end of this fiscal year.
We are working other actions to reduce the claims
inventory. As you are aware, the pandemic also limited our
ability to obtain Federal records, which are critical in
deciding disability claims. VA proactively engaged in NARA for
solutions to add addition shifts, including nights and
weekends, to reduce the number of requests by 90 percent, and
as a result, as of April 11, 2021, VBA is now under our pre-
pandemic working inventory level, 8,700 issue requests--it is
about 2 days' working time for us.
VBA will use part of the funding authorized by the American
Rescue Plan to support improvements in claims processing and
appeals, including expanding Federal record scanning to reduce
claims processing delays resulting from paper requests
maintained by NARA and other Federal records custodians.
Not all the challenges we face are related to the pandemic.
Under a recent court order, VBA must readjudicate over 62,000
Blue Water Navy claims. These claims were added to the
inventory in April. In addition, we are about to begin
processing claims for the three new Agent Orange presumptive
conditions mandated by Congress, of bladder cancer,
Parkinsonism, and hypothyroidism. We have seen a slow decrease
in the backlog over the last couple of months, but these new
issues, and a continued rollover of claims currently in the
inventory, will see a short-term spike in backlog this summer.
Despite the additional employees and overtime funds we have
provided, the backlog will hit a peak this August, when the
remaining Blue Water Navy claims I talked about a moment ago
roll over into the backlog. Then we will see a slow but steady
decline, week over week, through the end of Fiscal Year 2022,
where we will be at about 100,000 claims.
VBA is keenly aware that not all claims are alike, and some
claims, notably MST, require additional focus and handling in
an accurate and compassionate manner. We have made sustainable
improvements in MST claims processing, including eliminating
the requirement for unnecessary phone calls that would
retraumatize veterans, increased quality checks and improved
training for MST claims processors.
But there is more to do here. We are in the process of
centralizing all MST claims into five regional offices, and
will be done later this fiscal year. This centralization will
deliver the higher-quality, more consistent decisions that are
so important in these types of claims.
Chairman Tester, Ranking Member Moran, this concludes my
testimony, and I am happy to respond to any questions the
Committee may have.
Chairman Tester. I appreciate that. I am going to start out
by asking you a question I just asked my staff member. What is
the backlog today?
Mr. Murphy. 191,700, as of this morning.
Chairman Tester. And you expect it to peak in August, at
what number?
Mr. Murphy. We are not certain on that, sir. It should be
somewhere in the 225,000 to 240,000 range, depending on how
things go between now and the end of summer.
Chairman Tester. Okay. And then you said it will decrease
at the end of 2022, it will be at 100,000?
Mr. Murphy. Yes, sir, that is correct.
Chairman Tester. And so the question becomes, in your
position, have you looked at any ways to get it reduced
quicker?
Mr. Murphy. Yes, sir. We are looking at ways. We are
looking to leverage some technology, scanning of records,
presenting evidence in different ways. We have digitized our
entire world, and we are doing well with that but there are
ways we can do better with it. So leveraging through some
contracting, scanning, and indexing files.
Then we have the biggest lift that we can get today is tied
back to getting veterans to show up and get examinations. We
are today sitting on 58,000 claims where veterans have opted
not to show up, for safety reasons, and that is fine with us.
But we are contacting those veterans, reaching out continually,
saying, ``You have been immunized. Please come in and have your
examinations.''
Chairman Tester. And those numbers are going up with people
seeking care right now, pretty dramatically.
Mr. Murphy. Exactly.
Chairman Tester. So I just want to give you an opportunity
to highlight the work that you have done, because you have done
some good work over the last year. And I do not want to be--you
know, the pandemic has forced people to work in different ways,
and VBA is no exception. The National Archives struggled to
keep up with the demand for service records. Your team stepped
in to help them. Under Secretary, could you tell us how VBA
supported the National Archives to be able to deliver benefits
to veterans more quickly?
Mr. Murphy. Yes, sir. I would be happy to. The inventory we
have at the National Archives was in that 9,000 to 10,000 range
of awaiting records requests, and then the National Archives
closed back last March and the inventory quickly grew. We got
to the point where we were right around 100,000 claims. I sent
Mr. Clark, sitting right here to my left, over to the National
Archives to have some conversations with them, and they were
running a straight Monday-through-Friday operation with just 10
percent people at that time.
We had conversations with them, and instead of running
straight shifts they switched to shorter shifts, 6 hours
apiece, and ran two shifts a day. And then they added Saturdays
and Sundays on top of that. We made an offer to them to
transfer overtime funds through the appropriate channels to
make it all legal, to do whatever we could to help them have
access to. And as a result, over a couple of months process, we
went from that close to 100,000 down to the working inventory
that we had in the middle of April.
So the fastest way for a veteran today to get your records
is come to us, go through your service officer or come to us
directly, and file a claim or get a records request. We are
getting that turned around in just a couple of days. At the
same time, we know that NARA is sitting on several hundred
thousand records requests that come through other sources, but
we have been prioritized because we are taking care of
veterans.
Chairman Tester. So as I pointed out in my opening
Statement, VHA, when in-house examiners cannot meet the demand,
they use contractors--VBA uses contractors, when VHA in-house
examiners cannot meet demand. The GAO found that ``VBA has not
fully applied sound planning practices to its increased use of
contract disability medical examiners,'' and that is a quote.
Coordinating between VHA and VBA sounds like something that
requires sound planning practices. So, Under Secretary, who in
VA works with VBA and VHA to assure that the right mix of
contract and in-house examiners exists, over a fiscal year?
Mr. Murphy. Mr. Dave McLenachen, who runs our medical exam
contract on the VBA side, works with Toby, sitting to my left
here, on the VHA side. They are run through a central
distribution system and they are assigned where we have
capacity. VHA tells us we have this capacity in these
locations, our contractors tell us where their capacity is in
those locations, and that work is distributed, regardless of
VHA or VBA--excuse me, our contractors or VHA, where the
capacity is to get the veteran in to get that examination as
quick as possible.
Chairman Tester. Okay. So, Secretary Murphy, for certain
exams, like PTSD connected to military sexual trauma, be
conducted by VHA professionals at VHA facilities where veterans
can be immediately connected with the resources that they need?
Mr. Murphy. I would not object to that being the case, but
I do not see that it is a necessary step. I think the training
program, the requirements, the credentialing that we have, the
quality of the examination you can get from one of our contract
providers is equivalent to what you can get in VHA. There may
be other things that are more beneficial, that are more
advantageous to the veteran if they were to have it in a VHA
facility, such as other support requirements, but in terms of
is it medically necessary for us to get a valid evaluation, the
answer would be no.
Chairman Tester. Okay. Senator Moran?
Senator Moran. Chairman Tester, thank you. First of all,
you raised the topic of the National Archives. I thought
Secretary McDonough had a good idea to allow vaccines to be
utilized at the National Archives to get their staff
vaccinated, to get back to work to advance the cause of getting
the records to VBA. The National Archives declined to do so.
Senator Tester and I sent a letter. I am not suggesting
that as a result of that letter they changed their mind, but
they changed their mind. And I want to publicly indicate that
it was a smart decision, a wise decision, and I appreciate the
Archives doing what it can do to get its employees vaccinated
so that veterans can benefit from the records that are now
hopefully more available to them.
Let me ask just a few questions, and maybe Senator Tester
covered a bit of this, how VHA and VBA work together to develop
short-and long-term strategy to identify exam workload needs
and how to meet those needs through VHA and contract examiners.
I am trying to figure out what is the plan into the future.
What analysis have you done that puts you on a path to more
speed and greater accuracy?
Mr. Murphy. We do a forecast. For example, we are working
on the 2023 budget now, 2024 budget. In order to come up with
that budget number we have to start with what are the number of
claims we have today, what are we going to have in 2022, what
are we going to have in 2023, and that model tells us, this is
the type of claim--and it is very complex modeling--what types
of condition, what era of veteran are we talking about. And you
break it down, World War II, Korea, Vietnam, all the way to the
present date. All of that model is shared with VHA to say this
is what we see coming in the door, demand from veterans, and
VHA incorporates that into their planning, and it also drives
their health care. You said a moment ago, Mr. Chairman, that we
are the entry point. This is how you get in the VA.
So we know they are coming. We share that with VHA. And
with that comes a demand on what types of examinations we are
going to need, because it all starts with a disability claim.
Now back that up to how does that tie to medical
examinations. The answer comes back to it is tied to capacity,
where does VHA have capacity and where does the VBA have
capacity with our contractors. And by the way, they are very
curious about those same numbers, because it tells us what kind
of work they are going to be seeing from us. And we are very
specific on their performance indicators in terms of timeliness
and quality. So they are very interested in those numbers as
well.
But I do want to point out one very important thing. We are
in the middle of a pandemic, the back end of a pandemic
hopefully, that is a 100-year event. And while it is a bad
thing to have our backlog double, it has only doubled, based on
what we had. And that includes us shutting down for 5 months.
We have got to the point here, we have got a fairly quick
recovery here. Our contractors are providing in excess of 45
percent more exams per day than we were, and VHA has more than
doubled the capacity of examinations they are doing.
The point is this. Through leveraging what we have in VHA,
and tie that with our contractors, we are able to quickly
recover from this and get all of our veterans through in a
fairly expeditious manner. It can never be fast enough--I get
that--but it is going fairly well, and I am seeing very large
increases week over week in the number of examinations we are
doing.
Senator Moran. Thank you. What do those numbers, that
analysis, show? What are the predictions for volume?
Mr. Murphy. You mean the volume for the number of
examinations? I can tell you the number that I am working off
of, which is a weekly average, rolling 7-day. I am looking for
a number north of 45,000 examinations per week, just from the
contractors and then VHA on top of that.
Senator Moran. And demographics and other factors indicate
in the future the demand for those exams is going to what?
Mr. Murphy. It is going to increase as the claims continue
to grow, year over year.
Senator Moran. And the claims grow year over year, aside
from the backlog they grow year over year because of what
factors?
Mr. Murphy. We are putting more veterans on our rolls, and
then current conflict, where it is at today. As veterans age we
know that they come back for increases, and new conditions get
added to that. So we are seeing a growth, and it is actually
playing out very accurately to what we were thinking.
And if we had this hearing just a couple of years ago I
would be talking about the 1.1 millions claims we just did, but
today we are talking about the 1.5 million claims we are going
to do this year, or the 1.6 million next year. And just to be
sure those are very rough numbers, so please don't hold me to
it--you said 1.6, please--but I am trying to illustrate a point
to you that there is a continued growth. We know what it is. We
know what area it is. We share that with our contractors and
with VHA.
Senator Moran. Part of that answer, that paragraph answer,
was, I think, that the modeling is working. Your estimates turn
out to be accurate?
Mr. Murphy. Yes, sir. That is correct.
Senator Moran. Okay. Last--well, I guess it is 2 weeks ago,
not last week--two weeks ago we held a hearing, a legislative
hearing here, to discuss bills pending before this Committee.
One of those bills was the Ensuring Survivor Benefits During
COVID-19 Act of 2021. VA testified in opposition to that bill.
That bill would require the VA to seek a medical opinion in
case of any veteran whose death certificate lists coronavirus
as the cause of death but who had an underlying service-
connected disability, which was complicated, further
complicated because of COVID-19.
Here is my question. Would you agree that with an
unprecedented pandemic like we have seen that there is a
possibility that without legislative change, veteran surviving
families would not receive the same benefit they would have
received if they had died as a result of their underlying
service-connected disability had COVID-19 not been a factor?
Mr. Murphy. Senator, looking at this with a 30,000-foot
view, meaning I do not know the details of the bill you are
talking about----
Senator Moran. Understood.
Mr. Murphy [continuing]. and your Statement there today, I
would say yes, I would agree with that, that the potential
exists for that to happen. But again, the devil is in the
details, and----
Senator Moran. I am not asking you to endorse a bill.
Mr. Murphy. Thank you. That is what I was trying to say.
Senator Moran. Particularly one that the VA did not
endorse. But, I mean, common sense or something tells us that
there is a consequence. Are you doing anything to ameliorate
the differences that could occur on what is a death by an
underlying cause versus COVID-19?
Mr. Murphy. Yes, we are, and I am having some brain fog
here, because I just had a conversation on this very topic, and
the death was COVID as a result of an underlying condition. So
the COVID accelerated that person's passing, and you pass of
whatever condition it is that you had, accelerated by COVID.
That makes it service connected.
So there is certainly, as things develop, as we get smarter
about COVID and what it does to veterans, and the impact that
it has, we are still in the very early stages of when do those
COVID as a result of whatever condition. And just like we do
with presumptives and others, I see a future where the two are
connected, and it makes my process easier and better for
veterans. So there is some opportunity for let's make this
process better down the road.
Senator Moran. Thank you, sir. Thank you, Mr. Secretary.
Chairman Tester. So here is what we are going to do.
Senator Boozman is on his way.
Senator Moran. Okay.
Chairman Tester. I do not want to shut Senator Boozman off
of any of these panels, because he is a very active member of
this Committee. So what I am going to do, unless you have more
questions, and if you do you can continue to ask them, I am
going to go into recess, because I have got to go vote in
Commerce.
Senator Moran. You are going to go vote in person?
Chairman Tester. I have to, because of quorum needs.
Otherwise I would not. So if you want I can put this into
recess. If you are going to stay here you can take the gavel,
call it back in for Boozman, and then----
Senator Moran. Do we have any Senators waiting?
Chairman Tester. I have none online. And it is kind of good
of Boozman to come. Otherwise, you would have the easiest time
of any panel ever in front of this Committee.
Look. No, John Boozman is a thoughtful guy, and if he has
questions we want to try to accommodate him. And then we have
got votes at 3:30. I am going to try to get back here.
Senator Moran. So my suggestion is that Senator Boozman, he
arrives, gavels the meeting back in----
Chairman Tester. Sure.
Senator Moran [continuing]. I will go vote on the floor,
get that first vote done----
Chairman Tester. Perfect.
Senator Moran [continuing]. and then come back while you
are voting.
Chairman Tester. You know, that is why you are the Ranking
Member of this Committee.
Senator Moran. It is why I should be the Chairman of this
Committee.
[Laughter.]
Chairman Tester. Now come on. I did not go that far. By the
way, just so you guys know, he was plotting against me out in
the hall before I got here.
Senator Moran. I really wasn't plotting against you.
Chairman Tester. So we will go into recess. Smoke them if
you have got them, guys.
[Recess.]
SENATOR JOHN BOOZMAN
Senator Boozman. [Presiding.] Well, thank you all for being
with us, and I apologize for being late. We have had long
votes, and there is just lots going on today that really is
important. So thank you for bearing with us, and we really do,
like I say, appreciate you being here. We appreciate Chairman
Tester and Ranking Member Moran having the hearing on this so,
so very important subject.
When the pandemic first hit over a year ago, many services
at the VA had to be suspended for safety of our veterans and
the VA staff. This created barriers for veterans who wished to
receive a C&P examination and apply for disability
compensation. To help address this issue, we worked closely
with the members on this Committee to provide the authority for
the VA to enhance their capacity to conduct C&P exams and to
return the backlog number back to pre-COVID numbers as soon as
possible.
I am happy to hear that the VA is using its new authority
to address the backlog and schedule veterans for exams. Thank
you all for your incredible work in that regard. We work so
hard, as a Congress, and then you all implementing it such that
we got things kind of under control, and then about the time we
get under control to help veterans we give you additional work
with things like the Blue Water Navy and the this and the that.
So all of that is great, but it does create extra work. And
then on top of that we had the pandemic, where, you know,
people could not come in, or you all could not staff up like we
did.
So it is great that we are returning to some normalcy and
we do appreciate not only your efforts but your staff that have
done a tremendous job through all of this. So be sure and give
them a big pat on the back.
Mr. Murphy, your testimony includes several important steps
to reduce the disability claims backlog. It includes a
temporary increase in VHA C&P exam capacity and working closely
with the contract examination providers to increase examination
capability. In my State of Arkansas, more than 1,500 veterans
were waiting for a C&P exam. While veterans in my State
appreciate the effort, what are we going to ensure the accuracy
and quality of the contracted providers conducting the C&P
exams is more than adequate?
Mr. Murphy. There are three layers of quality checks that
go into the examination, so we will start with that one, and
the first one is the contractor themselves, because of the
nature of the contract, if their quality goes down there is a
financial penalty that comes with that. So each one of them has
a built-in, in-house quality review that checks it before they
give it to us.
Second, they give it to us, and then we do, just like we do
with the star process in our decisions, we do random sampling
across all different lines, all types of exams, statistically
valid sampling, and then that is the measure that we use to
hold their accountability.
And then the third part of it is, it sits in front of a
rater, and then that is more of a practical application is, is
the evaluation complete? Does it have everything I need in here
to make a rating decision? And, by the way, the answer to, when
it gets to the rater, it is 98 to 99 percent of the time they
can make a rating decision off of that.
So there are multiple layers inside the process that checks
the quality piece. And when you are dealing with contractors,
they are accountable to dollars. They understand our mission,
they are driving, they are doing good things for veterans, but
they understand I have to have quality because it will hit me
financially if I do not, and that is written right into the
contract.
Senator Boozman. Very good. Effective April 3d, as we
talked about earlier, in 2020, the VBA suspended all in-person
C&P exams due to the pandemic. The VA rightfully offered
veterans the opportunity to wait for an in-person examination
due to risk of infection and held their claims as non-
actionable.
Now that in-person examination capacity is gradually
returning back to pre-COVID levels, is the VA or its contracted
vendors doing anything to contact those veterans about
appearing for their C&P exams, and does the VA have enough
trained staff to handle the backlog of exams?
Mr. Murphy. We absolutely have enough trained staff to
handle the backlog. Our chokepoint is the exam itself. We had a
record chokepoint and we fixed it. Now it is the veterans
showing up for the examination themselves. And just to put a
number on it, that number nationwide is 58,000 veterans who
have elected not to come in and get their examination done. We
do not know if it is for COVID reasons or for other reasons. It
does not really matter. We are in the middle of this pandemic
and we will deal with it accordingly, and we will give veterans
a great deal of latitude.
So now that we know a great deal of them have been
vaccinated--there are phone calls, there are letters, there is
social media accounts saying, ``Please come in now. We are
open. We would like to do your examination today. Please
contact your provider or the VA and we will get you scheduled
at the soonest possible time.''
Senator Boozman. Very good. As of last week, the VA--and
this is a good report--reported over 191,000 veterans' C&P
claims were backlogged. While the number is certainly trending
in the right direction, it is still double the size of the pre-
COVID backlogs, for the reasons that we talked about. Is there
anything more--and I will really open this up to you and
anybody else that wants to comment--is there anything more that
Congress can do to authorize the VA to expedite the claims
process to ensure veterans are receiving benefits in a timely
manner?
Mr. Murphy. Senator, Congress has been very generous with
us, in terms of people, resources, dollars, overtime. The AARP
gives us $150 million to do scanning, so that we can have the
records in our hands and digital before it is needed. It gives
us the $100 million we needed in additional overtime money, so
when veterans show up to do their examinations I have the
capacity to flex up to handle that, which is why I can say,
with a very high degree of confidence, that the 100,000 at the
end of Fiscal Year 2022. I do need to put a caveat on that.
That is in today's environment. So I know we are talking about
toxic exposures and other presumptives. Any of those
presumptives comes in then we need to go back and recalculate,
and then all bets are off.
Senator Boozman. Right. Very good. Very good. Well, we
appreciate you guys so much, and so we should recess again.
Again, I apologize for the inconvenience and the running back
and forth. The only thing we have got to do while we are here
is vote. So you all are important, but that is even more
important. So I am going to run and do that. And so while we do
that, then we will be in recess for a little bit longer.
Mr. Murphy. Thank you, sir.
Senator Boozman. Thank you.
[Recess.]
Chairman Tester. [Presiding.] So--no, I am going to leave
us out of order for a second, because I met Moran in the
hallway and he said he about 35 minutes' worth of questions for
you guys, and I talked him down. I talked him down. But we will
call the hearing to order. I just want to thank you guys. We
are done. You got the easiest damn hearing in VA history. Okay?
Don't ever count on this happening again.
Senator Moran. Secretary Murphy, you were so impressive.
Chairman Tester. Yes, we could not stump you, and even if--
--
Mr. Murphy. You are going to make me legendary in VA with
this one, you know.
Chairman Tester. Exactly right. And you go back and tell
McDonough, ``Hey, baby, this is the way you run a hearing.''
[Laughter.]
Chairman Tester. So thank you guys. I will let you guys go
and we will bring up the next panel. And while they are hitting
the tables and we are changing nametags, I will explain who we
are going to be talking to. But thank you, gentleman. I
appreciate it very, very much. And as usual, if other Committee
members--and there were not many here today--if they have
questions we will be forwarding them on and hopefully you guys
can get back in a timely manner. OK?
Mr. Murphy. Absolutely, sir. Thank you.
Chairman Tester. Okay. That does conclude our first panel.
It is clear that VBA still faces challenges, but we will hear
now from GAO and veteran service organizations about particular
issues with the disability compensation process.
I want to first introduce Elizabeth Curda--a little
drumroll, Elizabeth--and Elizabeth is the Director of
Education, Workforce, and Income Security at the GAO,
Government Accountability Office. She is remote, exactly.
Then we have Ryan Gallucci, who is Director of National
Veterans Service at the Veterans of Foreign Wars; and somebody
who is a regular guest at our Committee, Shane Liermann, who is
the National Deputy Legislative Director at DAV. Finally, also
from DAV, we have Carmen McGinnis, the National Service
Officer.
Ms. Curda, you are here virtually, I believe, and so you
have the floor.
PANEL II
STATEMENT OF ELIZABETH CURDA
Ms. Curda. Thank you, Chairman Tester, Ranking Member
Moran, and members of the Committee. Thank you for inviting me
to discuss our work on VBA's use of contract medical examiners
and processing of complex disability claims.
The Department of Veterans Affairs often uses medical exams
to determine if disability benefits are warranted. This work
has increasingly shifted from VA medical centers to
contractors, who performed about 77 percent of the 1.4 million
exams completed last year.
Today I will discuss VBA's progress in implementing our
2018 recommendations on contract medical examiner oversight and
training and the impact of COVID-19 on VA disability workloads.
I will also discuss our recent findings and recommendations on
VBA's planning for the shift of its medical exam workloads to
contractors and how VBA reviews the quality of contractor work
on exams for complex claims.
In 2018, we identified issues with VBA's oversight of
contract examiners, including a lack of reliable and up-to-date
performance data. VBA reported to us last month that it has
implemented a new data team and tools to enhance its
performance monitoring and ensure proper exam invoicing. We
have requested documentation from VBA to assess whether its
newly established tools are sufficient to implement our
recommendations on VBA's use of performance data.
Further, VBA has yet to implement a system to verify that
all contractors have taken required training and to collect
feedback on training quality, as we recommended. VBA says it
has plans to implement an online training system this year and
will continue to perform periodic audits of training in the
meantime.
While VBA has been transitioning to contract examiners for
several years to help with workloads, the COVID-19 pandemic
created new challenges and contributed to an increase in VBA's
claims backlog. We reported in January on how VBA made
adjustments to allow contractors to perform more exams
virtually, and later ramped up in-person exams.
In our March 2021 report, we found that VBA has not fully
applied sound planning practices in transferring most
disability exams from VHA medical centers to contractors.
Specifically, VBA has not fully identified goals and
established a strategy, coordinated and communicated with
stakeholders, and conducted a risk assessment.
In terms of goals and strategy, VBA has Stated that it has
been VA's policy to transfer most exams to contractors while
maintaining some VHA capacity. However, VBA has no documented
plan with activities and timelines to achieve this balance. It
is unclear to us whether the shift in exams has been in
response to a VA-wide strategy or the decisions of individual
medical centers that have been seeking to reduce or eliminate
their exam workloads.
Regarding coordination, VBA meets frequently with VHA
officials and contractors to discuss short-term exam workload
needs, but has not consistently communicated its long-term
plans with exam providers and stakeholders. Additionally, VBA
has not conducted a risk assessment.
As was previously noted, VBA has yet to fully implement
recommendations related to the oversight of contract examiners.
Further, more than half of medical centers have sought approval
to transfer some of their exam workloads to contractors, and
the pandemic has placed new demands on all examiners. A risk
assessment would help VBA proactively identify and manage risks
and lessen their impact.
We recommended that VA use sound practices to develop a VA-
wide plan for the future distribution of exam workloads. Such a
plan would clearly identify actions and timeframes, could
inform all exam providers of VA's common expectations for exam
services, reduce uncertainty, and unify VA toward a common
goal.
Finally, regarding processing complex claims, such as those
for traumatic brain injury, military sexual trauma, and Gulf
War illness, both GAO and VA's Office of Inspector General have
reported in the past on challenges VBA has had processing such
claims, including issues related to the exams for these claims.
In our most recent work, we found that VBA claims processors
returned exam reports for these types of complex claims to
contractors for correction or clarification at about twice the
rate as exam reports overall. Time spent revising exam reports
can result in longer wait times for veterans. We recommended
that VBA conduct targeted reviews of exam reports for these
types of claims to identify areas where contractors may need
more training or guidance.
In summary, in these challenging and uncertain times, our
recommendations can help VBA improve contractor oversight and
develop robust plans for how it will allocate future exam
workloads.
This concludes my prepared Statement, and I will be happy
to address your questions.
Chairman Tester. Thank you, Director Curda. Next up we have
Ryan Gallucci from VFW. Ryan, you have the floor.
STATEMENT OF RYAN GALLUCCI
Mr. Gallucci. Thank you, Chairman Tester. Chairman Tester,
Ranking Member, Moran and members of the Committee, thank you
for the opportunity to provide the VFW's insight on the State
of VA disability claims processing.
COVID-19 had a devastating effect on many aspects of
American life. VA had to make difficult decisions in how to
handle claims, and advocates like the VFW had to overcome
unprecedented challenges to serve our clients.
The VFW leveraged VA resources and other technology to
continue providing quality representation throughout the
pandemic. When we could no longer meet with veterans face to
face, collaborative VA innovations like virtual hearings,
remote access to information systems, electronic submission
modalities, consideration of private telehealth records, and
others allowed our work to continue uninterrupted. So let's
keep the momentum going and work together to overcome
persistent hurdles like antiquated IT credentialing processes
and PDF-based systems to build a seamless digital process.
In the record, I wrote in detail about technology appeals
modernization and how VA measures success. My goal today is to
reinforce these themes but to also invite a constructive dialog
on solutions.
First, the time has come to rethink how will VA measure
success. VSOs want VA to provide veterans with timely access to
benefits, but VA consistently measures itself on the speed with
which it processes decisions. Timely access to benefits and
speedy decisions are very different things. For something to be
considered timely it must be useful. If a speedy decision fails
to confer accurate benefits, it is not timely.
Since Community Shinseki set the 125-day goal, VA has
seemed obsessed with the benchmark, to the detriment of the
veteran experience. In my written testimony, I described in
detail one veteran whose experience did not match VA's picture
of success. Due to hasty work, the veteran waited more than 8
months for the benefits he deserved. VFW had to help this
veteran file for the benefit three separate times, due to
processing mistakes. The veteran received two erroneous
decisions and grew understandably frustrated. Plus, the veteran
did not receive his accurate benefits until the new year,
potentially forfeiting significant State-level benefits for
2020.
But VA's metrics will not reflect this experience. By VA's
standard, three decisions were processed in an average of 90
days, exceeded the 125-day standard. We are measuring the wrong
things and calling it success, which is why we need to come
together to better define what success looks like. The VFW
speculates that veteran satisfaction is critical to
demonstrating success. Unfortunately, there is little publicly
available data from VA on what veterans actually think. VFW
collects some of this information from claims we serve on
military installations, and it is generally favorable to VA.
But during COVID it has gotten worse, with 22 percent of our
clients reporting that they intend to appeal their decisions,
since March 2020. VA needs benchmarks, and speed is a component
of timeliness.
VA also needs to evaluate accuracy to identify
deficiencies. However, these do not necessarily reflect
satisfaction or timely delivery of benefits. Whether it is long
drives on short notices for exams, elimination of rating
review, unreasonable employee production burdens, or
restrictive AMA regulations, the VFW worries that many
decisions are intended to improve speed but not veteran
experience.
We view the claims process as a social determinant of
health. As the gateway to many VA programs, the claims
experience sets the tone for how veterans will engage with VA
in the future. We need to look at all VBA programs in this
context, study them, report on them, and pivot where we need
to.
Next, VA needs to come back to the table on AMA. When we
negotiated this landmark reform, VA pledged to work with VSOs
on process improvements. However, when we pointed to critical
flaws over the last couple of years, our concerns were
dismissed. In one meeting, VA told VSOs that our recommendation
to ease form requirements would make it harder for VA to build
its report to Congress.
I said it then and I will say it now: I don't care about
VA's reports to Congress. I care about VA's timely delivery of
benefits to veterans. I imagine the Committee shares this
sentiment, which is why you asked for the reports in the first
place. Those reports need to mean something. If a process is
built to serve VA at the expense of the veteran, we are
failing.
VA should propose new regulations on intent to file and
ease form restrictions that allow VA to reject certain
substantially complete applications on a self-imposed
technicality. VA told us, in 2019, they would draft new ITF
regulations, but abandoned that last summer. If VA will not
address these issues, we ask the Committee to act and clarify
the intent of AMA.
Finally, toxic exposure reform remains the VFW's top
legislative priority. While VA may ask for more time, the time
is now. Vietnam veterans are still waiting for benefits.
Meanwhile, we are approaching 20 years since the first American
staged at Karshi-Khanabad. The problem is not how Secretary
McDonough may choose to leverage his authority on presumptives,
but the inconsistency with which it can be leveraged by past
and future Secretaries. This needs to change, and we look
forward to working with this Committee and our partners at VA
for this overdue reform.
COVID has forced us all to rethink priorities and how we
serve veterans. As we rebuild from the pandemic, we have an
opportunity to meet the moment through collaborative reforms.
We look forward to constructive conversations with our partners
at VA and this Committee to know what has happened.
This concludes my remarks, and I am eager to answer any of
the Committee's questions.
Chairman Tester. Ryan, I apologize. Thank you very much for
those remarks. We appreciate them. Next Shane Liermann from
DAV.
STATEMENT OF SHANE LIERMANN
Mr. Liermann. Chairman Tester, Ranking Member Moran, and
members of the Committee, on behalf of DAV's more than one
million veterans who have wartime service-related wounds,
injuries, diseases, and illnesses, we thank you for the
opportunity to offer our view on the State of the claims
processing during and after the COVID-19 pandemic. As you know,
DAV represents over one million veterans in the claims and
appeals process.
Mr. Chairman, the pandemic has negatively impacted VA's
ability to process veterans' claims and appeals, contain
questionable policy changes, and has dramatically increased the
backlog of pending claims. While VA is actively addressing the
issues created by the pandemic, we are concerned that VA policy
decisions are too often not focused on the non-adversarial
veteran-centric nature of the claims and benefits process.
In March 2015, VA standardized all claims and appeals forms
to allow them to streamline, scan, and automate parts of the
claims process. However, this policy change can take months of
entitlement from veterans, and does not provide them with
timely access to their earned benefits.
For example, if a veteran submits a claim or appeal on the
wrong form it may take VA months to review and advise the
veteran the claim will not be accepted because it was submitted
on the wrong form. Additionally, VA does not consistently
notify the veteran which form should have been used and does
not provide the correct form to the claimant to file. Thus,
when a veteran does file the correct form, they can lose months
of entitlement, as VA does not accept the claim submitted on
the wrong form as a claim submission or as an intent to file,
even though the exact same information may have been provided
by the veteran on both forms.
DAV and our VSO partners have addressed this issue directly
with VBA several times, and unfortunately they are not willing
to make changes, nor are they able to tell us how many veterans
have been impacted by this process.
While serving as the VA Administrator, General Omar Bradley
Stated, ``We are dealing with veterans, not procedures, with
their problems, not ours.'' Veterans need VA to focus on this
problem, not VA's procedures that have cost veterans months of
earned entitlement.
During the pandemic, VBA made policy changes like this one
that do not seem to be in the best interest of veterans, such
as the elimination of the VSO 48-hour pre-decisional review and
the removal of publicly available disability benefits
questionnaires, or DBQs. We would like to point out that VBA
has been openly collaborating with VSOs in reference to
providing a mechanism to address errors found in decision. The
claim's accuracy review or CAR pilot program is in the early
stages, and while we remain very optimistic, VBA has made it
clear that the 48-hour review will not return.
We also would like to thank this Committee for their
actions on Public Law 116-315, which required VA to again make
all DBQs publicly available.
Mr. Chairman, we raise all of these issues as the pandemic
has contributed to VA facing over 350,000 pending exams,
500,000 backlogged record requests with the National Personnel
Records Center, and nearly 200,000 claims pending over 125
days. If you throw in the 35,000 pending Blue Water Navy claims
and the addition of the new Agent Orange presumptive diseases,
it is apparent that VA has a difficult path ahead.
In 2010, VA established a goal of adjudicating claims
within 125 days, and anything pending over that is considered
backlogged. While we applaud VA's commitment and their ability
to reduce the claims backlog in 2016, we are more concerned
with veterans receiving timely, accurate decisions than VA
meeting their own arbitrary goal of 125 days.
In a 2018 OIG report, it was found that VBA's
prioritization of its own backlog resulted in delays in
processing other claims, even if they were older and required
rating decisions.
Mr. Chairman, with the increased number of pending claims
and VA's difficult task ahead, we want to ensure that VA policy
decisions are focused on timely and accurate adjudications of
veterans' claims, not just meeting VA's performance metric of
125 days.
This concludes my testimony, and I look forward to any
questions you and the Committee may have.
Chairman Tester. Thank you, Mr. Liermann. Next up, also
from DAV, is Carmen McGinnis, virtually. Carmen?
STATEMENT OF CARMEN McGINNIS
Ms. McGinnis. Chairman Tester, Ranking Member Moran, and
members of the Committee, thank you for holding this important
hearing to discuss the claims process and experience of
survivors of military sexual trauma. I am proud to have served
in the Marine Corps, enlisting on September 11, 2001. I served
honorably in Afghanistan and other locations abroad, but my
service was marred by the actions of another. I am before you
today because I am an MST survivor. Though I will carry that
scar for life, I have also found great purpose and fulfillment
in my life.
Today I work for DAV, helping ensure my fellow veterans are
able to access the car and benefits they have earned. I have
filed countless claims for MST survivors and fought alongside
them on their journey through the daunting claims and appeals
process. VA must work to make the claims process for MST
survivors more compassionate, respectful, and focused on the
best interest of the veteran.
The VA's Benefits and Health Administrations have a clear
disconnect when it comes to MST. VA's website States, ``You
don't need documentation of MST experiences or a VA disability
compensation rating to get care.'' While we applaud this
veteran-first approach to care, the message from VBA seems to
be ``we don't believe you,'' a message confirmed by the
frequent denial of claims related to MST, despite the recent
acknowledge of DoD Secretary Austin that ``Sexual assault and
harassment remain persistent and corrosive problems across the
total force,'' and nearly 7,000 reports of sexual assault
reported by servicemembers in 2019 alone.
VBA continues to focus efforts on identifying markers in a
servicemember's record to prove an assault, despite the fact
that many assaults still go unreported and have for decades. In
contrast, if a veteran served in a combat zone but did not
receive a combat award, it is an enough for them to claim that
they feared for their life. I expect, if asked, many MST
survivors would report they feared for their lives. I certainly
did.
While DAV believes it is important to protect the integrity
of the claims process, the current evidentiary requirements are
incongruent to the reality of the climate of assault we know
exists in the military. As such, DAV supports lessening
evidentiary burden for MST cases to more closely align with
what is currently required for combat veterans.
Mr. Chairman, the VA claims process for MST-related
conditions can be cold, impersonal, and is often carried out
with very little compassion for the dignity and humanity of a
survivor. VA has attempted to standardize this process, but let
me be clear--no sexual assault is standard. VA needs to
recognize that MST survivors often feel shame, and that the
event was somehow their fault, and they are not believed. When
VA sends a development letter to the veteran who has already
presented all the information necessary to concede a stressor,
these feelings are reinforced.
The language used by VBA in communications to survivors of
MST is important and should be viewed from the perspective of
the veteran, not just the VA. We recommend consulting with
health care experts specializing in sexual assault to ensure
language used in letters to veterans is not inflammatory or
impersonal.
Likewise, we believe changes should be made to improve
coordination between VBA and VHA to ensure veterans filing an
MST-related claim are aware that mental health services are
available, despite the status of their claim. These cases
should automatically initiate a communication to the veteran
providing direct contact information for VBA and VHA MST
coordinators and information on what services are available to
them.
As a service officer, I appreciate that VBA has made
changes to how MST cases are processed. In fact, as of May 3,
2021, VBA has directed all MST claims be consolidated and
processed through five designated regional offices. Due to the
complexity of these cases, this change makes sense. Denial of
these claims often occurs because claims processors have not
been properly trained to recognize possible markers linked to
MST in the treatment records. For accurate and timely
adjudication of these claims, there must be sufficient staffing
levels, consistent and continuous training, along with
continued oversight.
In closing, VA recently published a blog entitled ``VA
Believes in Survivors of Military Sexual Trauma.'' It is not
enough for VA to say they believe in survivors but then deny
their claims. VA simply must be do better. It is time to unify
VA's believe in survivors across the entire Department and put
the best interest of veterans at the heart of its approach to
improving this often devastating and painful process.
Mr. Chairman, this concludes my testimony, and I am happy
to answer any questions you or the members of the Committee may
have.
Chairman Tester. Well, I want to thank you for your
testimony. I want to thank all the folks who testified for
their testimony. I am going to start. If Senator Moran comes
back I will kick it over to him.
What I wanted to start with is you, Director Curda, and I
want to thank you for joining us. We rely heavily on you for
your nonpartisan expertise, and I am glad you are with us
today.
Your team recently published a report that found that VA
still has a lot of work to do when it comes to oversight and
planning of contract examiners. Director Curda, we are told VBA
and VHA coordinate contract examination strategies. Did your
study find that that coordination is sufficient?
Ms. Curda. Sure. We found that VBA and VHA were
coordinating on short-term workload management, and I think
that was what Acting Under Secretary Murphy was referring to in
terms of holding weekly meetings to communicate between VBA and
VHA on disability exam needs. And additionally, they have
developed a process for VHA medical centers to request the
transfer of exam workloads to VBA contractors, which is giving
contractors some lead time to increase capacity, if needed.
However, regarding the bigger picture and the longer term,
it remains unclear to us to what extent VA's shifting exams
from VA medical centers to VBA contractors is based on an
agency-wide strategy versus changes in individual medical
center capacity and decisionmaking.
For example, officials we interviewed from the medical
centers said that they were receiving fewer exam requests than
they had indicated that they had the capacity to do in VBA's
exam routing tool. In addition, VHA Stated that all medical
centers are required to maintain some exam capacity. However,
many VA medical centers have already transferred some or all of
their disability exam workloads to contractors, and VA has not
determined or communicated what the exam capacity is needed
systemwide and for individual medical centers.
To address uncertainty among disability exam providers and
other stakeholders about future workloads, VBA should
coordinate with VHA to develop an agency-wide, long-term
strategy that includes input from all relevant stakeholders.
Without such coordination on long-term planning, each VA entity
may make decisions in their own silos without identifying
capacity levels that make sense for the system as a whole.
Chairman Tester. Okay. And I don't want to say something
different than what you just said, but from a long-term
workload planning standpoint, you think that the coordination
is not sufficient.
Ms. Curda. Correct.
Chairman Tester. Okay. And that--and I am just kind of
repeating back what you said--and that is because they are
focused on the short-term workload, or is it because of another
reason?
Ms. Curda. They do appear to coordinate on a day-to-day
basis on, you know, what exams need to be done right now. But
what concerns us is, as of this year to date, the contractors
are now performing 90 percent of exams, and a lot of medical
examiners we spoke to were not aware that the capacity was
shifting to mostly contractors.
And so we just think that the coordination and
communication across the two areas could be greatly improved.
Chairman Tester. All right. Thank you.
You brought up complex claims, like traumatic brain injury,
military sexual trauma, Gulf War illness. Are there others?
Ms. Curda. There certainly could be others. These are the
ones that we focused on in our report, specifically, because
they had previously been identified as challenging, either by
us or by VA's Office of Inspector General.
Chairman Tester. I have got you. So the question I have is
what makes a claim complex?
Ms. Curda. Sure. So these are claims that auditors such as
ourselves, or the OIG has found there were problems in
performing these exams, and VA itself requires specialized
training, so that is another way of looking at it.
So, specifically, we focused on those three areas. Other
areas that could be considered complex, that we did not look
at, would be something like PTSD. The VA OIG recently
identified issues with VBA's processing of those claims more
broadly.
But regarding the complexity, it really varies for each
claim type. So, for example, with the Gulf War illness claims,
they often involve what are called undiagnosed illnesses and
unexplained, chronic, multi-symptom illnesses of unknown cause.
These are very specific terms with legal requirements. And if a
provider provided a medical opinion in cases when a service
connection should have been presumed, that could lead to an
inaccurate denial of benefits, and that is something that a
doctor, you know, typically is trained to provide a medical
opinion, and so in some cases they are not supposed to, so that
can be confusing.
In contrast, evaluating military sexual trauma is complex
based on the sensitive nature of the exams and challenges
identifying potential supporting evidence in the veteran's
records.
Taking a closer look at exam reports for these complex
claims is important, because VBA data suggests that contract
examiners may find completing these exam reports more
challenging than for other more routine exams, and we found
that claims processors returned exam reports related to these
types of claims at twice the rate as for exam reports overall.
Chairman Tester. Okay.
Ms. Curda. So having to return those exam reports to
examiners for rework slows down processing the veteran's
claims, which mean the veteran is waiting longer and there is a
potential for an inaccurate exam report that could affect the
veteran's rating.
Chairman Tester. Thank you much. I have more questions and
I am going to come back to them, but I understand Kyrsten
Sinema is on virtually. Senator Sinema, you can go.
SENATOR KYRSTEN SINEMA
Senator Sinema. Thank you, Chairman Tester, and thank you
to Ranking Member Moran for organizing this hearing, and thank
you to our witnesses for your continued efforts to support
veterans and their families and for your participation today.
My first question is for Mr. Liermann. My office has
received a number of inquiries from Arizona veterans regarding
the use of disability benefits questionnaires. In some cases,
veterans who submit DBQs are required to schedule compensation
and pension exams by the VA. In other similar cases, the VA
accepts the DBQs and does not require C&P exams. So we have got
veterans who have contacted us and they are frustrated. They
see this as the VA applying the DBQ policy inconsistently.
So in your testimony you identified some of the challenges
of the removals of DBQs. With their reinstatement, are you
seeing inconsistencies in how the VA considers DBQs when
adjudicating a claim?
Mr. Liermann. Thank you, Senator. Great question. We kind
of look at that, or refer to that as overdevelopment. If there
is a DBQ submitted by the veteran that fulfills the
requirements for that evaluation or for VA to provide a
decision, there is no need for VA examination if that
information was provided. If that DBQ did not provide the right
information, then yes, they could request an additional VA
examination.
But to your point, we have been seeing this for years in
the veterans community. I know VFW, as well as us and other
organizations representing veterans, have seen this as a
consistent problem, that even if the veteran is providing that
information, they are still requesting the exams,
overdeveloping it, and causing delays in other cases. And then
in some instances, they will take VA's requested exam
information over what the veteran provided because that
examiner had access to the entire file, so they will give more
weight to the VA exam than to the private medical evidence, or
DBQ, that the veteran submitted. And you are absolutely
correct--it is frustrating and a problem.
Senator Sinema. So are there steps that should be taken to
ensure the use and consideration of DBQs are more standardized?
What can be done?
Mr. Liermann. Thank you, Senator. What we recommended in
our written testimony was VA should have a tracking mechanism
for that. Every time the veteran submits a DBQ along with a
claim, VA should be tracking those and then be able to
determine at what rate are they asking for additional
examinations and for what reasons. That might help identify,
potentially, a training problem within VSRs, or are VSRs
requesting additional or more information. Because when you
look at it, by them continuing to do that, if it is not needed,
they are wasting time, money, and delaying veterans access to
their benefits.
Senator Sinema. Thank you.
Mr. Gallucci, could you answer the same question that I
posed to Mr. Liermann?
Mr. Gallucci. Thank you, Senator. Yes, to provide a little
bit more to what Shane was talking about, I think what may have
been happening could also be the product of some of the
circumstances of COVID-19. So what we recognized under COVID-19
is that in VA's benefits processing manual there was a bar to
considering private medical evidence acquired via telehealth.
VA could not consider that for rating purposes if it came from
a private doctor.
Thankfully, VA did pivot, but they made the change to the
manual only in March. It was something that VSOs like VFW and
DAV were advocating for. It is a positive, veteran-centric
change, but I am concerned that potentially veterans in
Arizona, whose private medical evidence may have been acquired
via telehealth prior to that processing change, did not have
their evidence considered, regardless of what form it may have
been on.
Senator Sinema. Thank you. Now this question is for both
Mr. Liermann and Mr. Gallucci. The VA discontinued use of DBQs
last year because of a growing concern of fraudulent practices.
So in your opinion, was this warranted, and if so, with the
reinstatement of Dabs what steps should the VA or Congress take
to mitigate potential fraudulent practices?
Mr. Liermann. Thank you, Senator. There was an OIG report
that came out that made reference to potential fraud on DBQs.
However, they never proved fraud. There was no actual proof in
any of the information that fraud was actually committed.
And then the other side of that, the OIG report also made
several recommendations that VBA could implement before just
discontinuing the DBQ forms. However, they chose not to take
any of those recommendations and pivoted right to discontinuing
DBQs, and then it really created this inequity, because
veterans represented by VSOs, such as VFW and DAV, we would
still have access to the DBQs behind VA's firewall and could
provide that to the veterans we represented. Unrepresented
veterans had no access until Congress brought those back and
they are now available, and that was also a huge part of the
problem.
Mr. Gallucci. Senator if I may respond. I know we are a
little bit over time. But with regard to that question, there
are really two parts to that. First, the VFW read that IG
report very differently than VA did, and similar to what Shane
said, we saw it as a problem with veterans acquiring
questionable medical opinions. We think this is a growing
problem during the pandemic.
Unfortunately, there are organizations that will charge
fees that are out of line with what VA allows under the law and
help veterans acquire medical opinions of questionable value.
We know that this is a problem that VBA is looking at. It is
something that is very serious. Fortunately, VA has the options
to weight medical evidence, evaluate whether it was a treating
physician.
It is a conversation that the VSOs do need to have again
with VBA and consistently followup, to make sure that they are
weighing it properly. We have seen some examples where VA
determines that the private medical evidence was not from a
treating physician, but the record demonstrated otherwise, as
in the veteran was treated by that doctor for a long period of
time.
It is a complex issue. We are very eager to have more
conversations about this, though, because I think it is
something we can solve and something that we need to solve.
Senator Sinema. Thank you. Mr. Chairman, thanks for your
indulgence. I know my time has expired. I appreciate you. Thank
you.
Chairman Tester. Absolutely. Thank you. I have question for
Carmen McGinnis, who is virtually here as a testifier.
Ms. McGinnis, I want to thank you for your service to our
Nation and I am thankful that you are here today. Your
experience with the process of filing your specialty or complex
claim for surviving military sexual trauma is going to help
Congress and it is going to help this Committee and the VBA
improve the support for other veterans.
So, Ms. McGinnis, please tell us about your experience with
the disability compensation process, and what we can do to
improve it for other survivors.
Ms. McGinnis. Thank you. There are a few things the VA can
do to better support MST survivors. One is lowering the
evidentiary standard. Second would be to revise the development
letters and ensure veterans have the direct contact information
for their local MST coordinator in VBA and VHA, and that they
are made aware of the medical benefits that might be available
to them through these MST coordinators.
Also implementing a mechanism where a claimant can elect to
have a male or female provider for their MST-related claim and
examination. This was in line with Public Law 116-315 and it
has not been implemented to date. Also ensuring claims
processors are well trained and properly overseen, keeping in
mind the perspective and feelings of the survivor, and not
rushing a claim through a standardized process.
All of those would be top priorities for DAV concerning MST
claims and what I think the VA could do to better support MST
survivors.
Chairman Tester. Well, I appreciate that input. Thank you.
Mr. Liermann, thanks again for being here. There were
issues with the disability claims process prior to the
pandemic, and your written testimony provides several examples
of how the process is not veteran focused. So, Mr. Liermann,
you wrote that disabled veterans could lose months of
entitlement if they fill out the wrong form. Would you flesh
that out a little bit?
Mr. Liermann. Absolutely. Thank you, Senator. If a veteran
submits a claim, let's say, for example, what is called the VA
Form 526, which is like a formal claim, they submit that today.
Four months from now, the VA will notify them, ``You already
claimed that issue 10 years ago. That is the wrong form.'' So
they will send that notification to them in the mail. Not in
every instance will they tell them the correct form they need
to use, or even provide it to them.
So by the time the veteran then figures out what is the
correct form, they have already lost 4 months or more of an
effective date, because VA will not accept an incorrect form as
an informal claim submission or an intent to file and protect
that effective date. So by the time the veteran then figures it
out, they have potentially lost four to 6 months, if not more,
of months of entitlement.
Chairman Tester. Okay. Well, I just want to thank all of
you for being here today, GAO, the VSOs, VA officials, all of
you for being here today. Millions of disabled vets rely on the
VBA. We must remember that veteran-focused claim process
emphasizes quality and fairness and not speed at all cost. And
I would just add to that, I talked to the Secretary today, and
I think he firmly believes that, and I believe you do too. And
so I appreciate that.
Furthermore, disabled veterans with specialty claims need
particular oversight from VBA. The Committee will certainly
provide oversight for that, to make sure that will happen, to
the best of our ability.
So on that note we will keep the record open for 1 week. If
there are questions that come in we will forward them to you.
Hopefully you can get them returned in a timely manner.
I apologize. Normally we have got a ton of people here.
This is a very, very important issue. But as I said at the very
beginning, it has been a crazy damn day, and I have got to
gavel out right now. Otherwise they will close out the vote and
I will not get a chance to vote.
So I just wanted to thank you all for being here. This
hearing is adjourned.
[Whereupon, at 4:44 p.m., the Committee was adjourned.]
APPENDIX
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