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25–210 2018

TBI CLAIMS: VA’S FAILURE TO PROVIDE 

ADEQUATE EXAMINATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON DISABILITY 

ASSISTANCE AND MEMORIAL AFFAIRS 

OF THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

WEDNESDAY, JULY 13, 2016 

Serial No. 114–76 

Printed for the use of the Committee on Veterans’ Affairs 

( 

Available via the World Wide Web: http://www.fdsys.gov 

Leonard.horne on VACREP0180 with DISTILLER

(II) 

COMMITTEE ON VETERANS’ AFFAIRS 

JEFF MILLER, Florida, Chairman 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida, Vice-Chairman 

DAVID P. ROE, Tennessee 

DAN BENISHEK, Michigan 

TIM HUELSKAMP, Kansas 

MIKE COFFMAN, Colorado 

BRAD R. WENSTRUP, Ohio 

JACKIE WALORSKI, Indiana 

RALPH ABRAHAM, Louisiana 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

AMATA COLEMAN RADEWAGEN, American 

Samoa 

MIKE BOST, Illinois 

CORRINE BROWN, Florida, Ranking 

Minority Member 

MARK TAKANO, California 

JULIA BROWNLEY, California 

DINA TITUS, Nevada 

RAUL RUIZ, California 

ANN M. KUSTER, New Hampshire 

BETO O’ROURKE, Texas 

KATHLEEN RICE, New York 

TIMOTHY J. WALZ, Minnesota 

JERRY MCNERNEY, California 

JON TOWERS, Staff Director 

DON PHILLIPS, Democratic Staff Director 

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL 

AFFAIRS 

RALPH ABRAHAM, Louisiana, Chairman 

DOUG LAMBORN, Colorado 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

MIKE BOST, Illinois 

DINA TITUS, Nevada, Ranking Member 

JULIA BROWNLEY, California 

RAUL RUIZ, California 

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records 

of the Committee on Veterans’ Affairs are also published in electronic form. The printed 

hearing record remains the official version. Because electronic submissions are used to 

prepare both printed and electronic versions of the hearing record, the process of converting 

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process 

is further refined. 

Leonard.horne on VACREP0180 with DISTILLER

(III) 

C O N T E N T S 

Wednesday, July 13, 2016 

Page 

TBI Claims: VA’s Failure To Provide Adequate Examinations ........................... 1 

OPENING STATEMENTS 

Honorable Ralph Abraham, Chairman .................................................................. 1 

Honorable Dina Titus, Ranking Member ............................................................... 2 

WITNESSES 

Mr. Dave McLenachen, Deputy Under Secretary for Disability Assistance, 

Veterans Benefits Administration, U.S. Department of Veterans Affairs ...... 4 

Prepared Statement ......................................................................................... 18 

Accompanied by: 

Ms. Patricia Murray, Chief Officer, Office of Disability and Medical Assessment, Veterans Health Administration, U.S. Department of Veterans Affairs 

Ms. Mary Glenn, Acting Deputy Director, Operations, Compensations 

Services, Veterans Benefits Administration, U.S. Department of Veterans Affairs 

Leonard.horne on VACREP0180 with DISTILLER

Leonard.horne on VACREP0180 with DISTILLER

(1) 

TBI CLAIMS: VA’S FAILURE TO PROVIDE 

ADEQUATE EXAMINATIONS 

Wednesday, July 13, 2016 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON VETERANS’ AFFAIRS, SUBCOMMITTEE ON DISABILITY ASSISTANCE

AND MEMORIAL AFFAIRS, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:00 a.m., in 

Room 334, Cannon House Office Building, Hon. Ralph Abraham 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Abraham, Titus, Lamborn, Brownley, 

Zeldin, Ruiz, Costello, and Bost. 

Also Present: Representative Walz. 

OPENING STATEMENT OF RALPH ABRAHAM, CHAIRMAN 

Mr. ABRAHAM. Good morning. Welcome. This oversight hearing of 

the Subcommittee on Disability Assistance and Memorial Affairs 

will now come to order. 

Before we begin, I would like to ask unanimous consent that our 

great colleague Representative Walz be allowed to sit in at the dias 

and ask questions. 

Hearing no objection, so ordered. 

I do again want to thank everybody for being here today. The 

hearing will focus on the finding the VA provided over 24,000 veterans with inadequate examinations for traumatic brain injury, 

also called TBI. 

TBI is caused by trauma to the brain and can be mild or serious. 

It has been called the signature injury of Iraq and Afghanistan 

wars because so many servicemembers suffered TBI as a result of 

a nearby explosion or being struck in the head. 

TBI is also referred to as the invisible disease, because it can be 

difficult to detect. Many patients look normal on the outside, but 

experience serious symptoms including headaches, mood changes, 

ringing in the ears, difficulty concentrating, and a reversal of sensory feeling. As a physician, I know it is imperative and often lifealtering for patients to receive a correct diagnosis as soon as possible. 

It seemed as though VA recognized the importance of a correct 

diagnosis too. In 2008, VBA instituted a policy that required initial 

TBI examinations be performed by a neurologist, psychiatrist, 

physiatrist, or neurosurgeon. VA refers to these specialists as the 

big four. However, contrary to its own policy, we recently learned 

that between 2008 and 2015, 24,000 veterans did not receive adeLeonard.horne on VACREP0180 with DISTILLER

2 

quate TBI exams because they were not evaluated by one of the big 

four and, even worse, VA only discovered the problem after a 2015 

news report revealed that 300 veterans in Minnesota received 

exams conducted by unqualified medical professionals. 

And this raises the obvious questions: Why didn’t the VA ensure 

that veterans who filed TBI claims receive adequate examinations? 

Were disability examination contractors required to use the big 

four for initial TBI examinations? Why did the VBA issue conflicting guidance regarding TBI exams? What procedures has the 

VA implemented to ensure that disability examinations will be conducted by appropriate specialists? And finally, what steps has the 

VA taken to ensure impacted veterans have the opportunity to request a readjudication of their TBI claims? 

Unfortunately, it is likely that some veterans with meritorious 

claims may have been denied benefits. And although I appreciate 

that the VA took the initiative and conducted a nationwide review 

after the problem was first uncovered in Minnesota, I am frustrated that the VA failed to implement procedures to ensure VBA 

policies were followed. 

This failure likely caused affected veterans serious medical, financial and emotional hardships because they have not received 

medical care to heal them or compensation to assist them, all because the VA does not enforce compliance. 

Committee staff hearings have been trying to get to the bottom 

of what happened and who is responsible, but even after four separate briefings the answers are not clear. 

The only issue that is clear to me is that the VBA and the VHA 

created a royal mess by not communicating with each other in the 

way they should and that senior VA employees once again failed 

to hold subordinates accountable. I also remain concerned about 

other disability rating policies that VA could have been ignoring for 

years. 

Although I am sure that the witnesses will be able to shed some 

light on the issue, I am not confident that even after this hearing 

we will completely understand how VA missed the problem for so 

long. I look forward to getting more information from the witnesses. 

With that, I call on our distinguished Ranking Member, Ms. 

Titus, for her opening statement. 

OPENING STATEMENT OF DINA TITUS, RANKING MEMBER 

Ms. TITUS. Thank you very much, Mr. Chairman. Thank you all 

for being here. And I am delighted that we have Mr. Walz joining 

us, because he has been working on this for quite some time. 

As you said, Mr. Chairman, traumatic brain injury is one of the 

signature injuries affecting our post-9/11 veterans. The primary 

causes of TBI for veterans from Iraq and Afghanistan are blasts, 

motor vehicle accidents and gunshot wounds. 

The Department of Defense has diagnosed 350,000 

servicemembers as having received at least one brain injury since 

2000, yet the VA has granted only 75,000 disability claims in relation to TBI received in service. The disparity here is what is so 

very troubling. You have a great gap between the servicemembers 

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3 

identified by the Department of Defense and the positive claims 

granted by the VA. 

On the other hand, the VA is leading the way in the treatment 

and research for traumatic brain injuries and has said it will spend 

$2.2 billion over the next ten years on treatment and research. It 

is important to remember that any one servicemember can have 

multiple brain injuries, so this kind of research is critical. 

What troubles me about the subject of today’s hearing is that accurate benefits adjudication is critical to ensuring our veterans 

have access to the VA health care they need. Without timely and 

accurate decisions, it is possible that veterans who need care are 

not receiving it through the VA. This is a common problem that we 

have had in this Committee: once again, we find ourselves examining issues related to access. 

Now, we often hear from the veterans and even the recent Commission on Care that once veterans are able to get into the VA 

health care system, they receive care that is second to none, and 

that is especially true for TBI, but it is getting into the system that 

seems to be the problem. 

We also know that TBI is linked to other things. It is linked to 

PTSD, chronic pain, substance abuse that can lead to homelessness, that can lead to suicide; it is just a downward spiral. So we 

need to get at this problem at the beginning, not at the end when 

recovery for the veteran becomes more and more complex. 

VA programs and services relevant to TBI include screening and 

evaluation, acute and post-acute care provided through the VA, 

polytrauma, access to the TBI system of care, and long-term services and support. 

So while the VA has the best treatment available in this specialized care that they are so recognized for around the world, we 

aren’t getting out veterans into the system, we are not adequately 

processing their disability claims, and certainly this can have longterm ramifications and that is the problem that we are here to address today. 

Now, I realize that the VA has made a response to these mismanagement problems and I appreciate that, but I am concerned 

that it is inadequate. When the VA sent a letter to veterans asking 

them to request a TBI examination, I wonder if they believed they 

received enough outcome from that sending just that letter, if they 

think that is enough to get to these veterans who may need their 

help. I don’t think it is, and I am concerned for three reasons. 

First, it took the VA two years to take action to fix the problem 

or to address the issue once it was discovered. Now, that is two 

years on top of the four years it took them to even recognize that 

there was a problem. So you have got veterans who have been denied access to care and benefits for a six-year period. 

Second, I can’t understand why the VA’s quality control and 

oversight mechanisms didn’t identify the issue for the four years, 

original four years. I hope that by the end of this hearing we will 

have a better understanding of what the problem was and what 

procedures have been put in place so that that doesn’t happen 

again. 

And thirdly, and most importantly, it was the VA that was in the 

wrong, not the veteran. The VA needs to put the onus of correcting 

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4 

this problem on itself rather than on the veteran. Instead of sending a letter and asking the veteran to respond and ask for a new 

medical exam, and then maybe hoping they don’t need it or say no, 

I think the VA needs to be more active in reaching out to schedule 

these TBI exams. 

Now, such a course of action would ensure a higher percentage, 

perhaps the highest percentage of veterans who need this will take 

advantage of the opportunity and get that exam. It is the VA that 

dropped the ball, not the veteran, and the effect of that can be devastating. 

So I believe that the VA thinks they have got the correct policy 

in place, so it is incumbent upon them to reach out and let veterans know what it is. Doing that will help to rebuild trust between the VA and our veterans, which has been a serious problem 

that we have talked about over the course of these hearings with 

this Committee. 

So thank you, Mr. Chairman, I look forward to working with you 

on this. 

Mr. ABRAHAM. Thank you, Ms. Titus. 

I ask that all Members waive their opening remarks, as per this 

Committee’s customs. 

I would now like to welcome Mr. David McLenachen, who is the 

Deputy Under Secretary for Disability Assistance. He is accompanied this morning by Ms. Mary Glenn, Acting Deputy Director 

of the Operations, Compensation Services of VBA; and Ms. Patricia 

Murray, Chief Officer of the Office of Disability and Medical Assessment of VHA. 

Mr. McLenachen, you are now recognized for five minutes to 

present the testimony of the VA. 

STATEMENT OF DAVID MCLENACHEN 

Mr. MCLENACHEN. Good morning, Mr. Chairman, Ranking Member Titus and Members of the Committee. 

Thank you for the opportunity to review with you the Department of Veterans Affairs process for ensuring that all veterans are 

properly evaluated for traumatic brain injury. Mr. Chairman, as 

you said, that’s known as TBI. 

Since 2007, medicine around traumatic brain injury has been a 

rapidly evolving science. Recognizing that TBI is a signature injury 

of the conflicts in Iraq and Afghanistan, VA instituted a policy requiring one of four specialists, a psychiatrist, a physiatrist, a neurosurgeon, or a neurologist to complete initial TBI exams for disability compensation claims when VA does not already have a diagnosis. 

VA selected these specialists because they have the most experience with the symptoms and effects of TBI, and to take extra steps 

to ensure that veterans seeking disability compensation for this 

complex disability receive the benefits to which they are entitled. 

VA also updated its rating criteria in 2008 to keep pace with 

evolving understanding of TBI. Unfortunately, as more research became available, VA issued a series of guidance documents that inadvertently created confusion regarding this policy. 

In October, 2014, the Minneapolis VA Medical Center reviewed 

initial TBI exams for disability compensation claims completed 

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5 

since 2010 and identified approximately 300 veterans whose exams 

were not conducted by one of the four designated specialists. Thereafter, the Veterans Benefits Administration and the Veterans 

Health Administration initiated a nationwide review of initial TBI 

exams for disability compensation claims performed between 2007 

and 2015. 

The results of this review revealed that between 2007 and 2015 

approximately 24,000 veterans received initial TBI exams for disability compensation claims that were not conducted by one of the 

four designated specialists. 

Further, the review found that VHA conducted approximately 

5300 of these exams while VBA contract examiners conducted approximately 19,000. 

VHA facilities have certified that initial TBI disability compensation examinations are now being conducted by one of the designated specialists. In addition, VBA modified its exam contracts in 

2013 and 2014 to clearly state that the initial TBI exams must be 

performed by one of the four designated specialists when no diagnosis is of record. 

The recently completed national review confirmed that VBA contract examiners have been compliant with this requirement under 

the terms of the modified contracts. 

VA regrets that these examinations were not completed by a designated specialist the first time. To minimize burden and ensure no 

financial harm to affected veterans, the Secretary of Veterans Affairs granted equitable relief to all of the more than 24,000 veterans on May 3rd, 2016. The relief authorizes VA to offer new TBI 

exams conducted by one of the four designated specialists to all 

identified veterans. 

This equitable relief further enables VA to take action on any 

new examinations without requiring veterans to submit new claims 

and allows VA to award an effective date as early as the date of 

the veteran’s original TBI claim and provide any retroactive benefits. 

VBA has contacted all affected veterans via letter to notify them 

of the opportunity to receive new exams and have their claims reprocessed. These veterans can initiate reprocessing of their claims 

by either calling a dedicated phone number for this purpose or otherwise contacting VA. Affected veterans have one year from the 

date that they are notified of the grant of equitable relief in which 

to request new examinations. 

Affected veterans are already receiving service-connected compensation for benefits at a ten-percent disability evaluation or higher and that number is about 13,000 that are all receiving compensation at that level. 

VA has also clarified its guidance documents that may have created confusion regarding the policy. We have confirmed that TBI 

policy guidance is now clear, and VA is confident that examiners 

now comply with its TBI compensation examination policy. 

Mr. Chairman, we understand the importance of an accurate 

exam to support veterans’ disability compensation claims, and improving the medical exam experience is one of VA’s 12 MyVA 

breakthrough initiatives that we have been working on. 

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6 

Mr. Chairman, this concludes my statement. We would be happy 

to answer any questions that you or Members of the Committee 

have for us today. 

Thank you. 

[THE PREPARED STATEMENT OF DAVID MCLENACHEN APPEARS IN

THE APPENDIX]

Mr. ABRAHAM. Thank you, Mr. McLenachen. And my first question will be addressed to you and you can certainly bring the other 

two people here with you. 

What I worry about is the accountability issue, because we have 

this issue it seems over and over. Walk me through the, I will use 

the word, inadequate examinations. Who in the VBA was responsible for informing the VHA in 2008 that only the big four specialists were authorized to conduct initial TBI exams? 

Mr. MCLENACHEN. Certainly. Let me clarify one point at the very 

beginning in answering your question. 

VHA and VBA work very closely. This is not a situation where 

we are independently issuing guidance regarding these matters. 

Historically, both agencies have worked very close together in developing this policy, issuing it and implementing it. So I just want 

to make that point clear from the beginning. 

In VBA, the compensation program, to include the policies regarding examinations and evaluating compensation claims, is 

issued by our Compensation Service, which is under—the Director 

of the Compensation Service reports to me as the Deputy Under 

Secretary for Disability Assistance, and I report to the principal 

Deputy Under Secretary and the Under Secretary. 

Mr. ABRAHAM. So was the chain of command followed? Was there 

a break in the chain? 

Mr. MCLENACHEN. No, sir, not that I am aware of. 

And let me say that I have spent a lot of time on this issue, both 

preparing for conversations with the Committee’s staff, looking into 

this matter myself, going back over time, and I must say that it 

is a matter of hindsight; I am going back and looking at what others have done before me. 

And regarding your accountability question, all I can say at this 

point is, that those that you have to hold accountable are me and 

the other current leadership that need to address this problem. 

Mr. ABRAHAM. Fair enough. So why weren’t the disability examination contracts amended in 2008 to ensure that the veterans did 

receive adequate exam from the contractors? 

Mr. MCLENACHEN. That is a real good question, because this is 

something that we are going to have to be very vigilant about going 

forward. And if you are aware of this, we have had authority since 

1996 to use mandatory funding for contract exams and that authority has been expanded over the past few years to where in fiscal 

year 2017 we will have full authority to use mandatory funds for 

contract exams as much as possible, it is unlimited authority. 

Mr. ABRAHAM. So I guess my more pointed question is, who actually made that call? Who made that decision, you know, that the 

disability examinations weren’t by the book? 

Mr. MCLENACHEN. The contracts are modified through a entirely 

different procedure than the issuance of policy. The administration 

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7 

of the contract is done by Compensation Service as well and the 

point— 

Mr. ABRAHAM. And I understand. You know, I guess I am looking 

for that person, because again, I think accountability here—and 

you stepped up on the last question and said, you know, you are 

the guy to look to, but I guess what is disconcerting to me is that 

in their attempt to explain away this problem, I hope it is clear, 

but it seems to me it is unclear that the VA officials understand 

that, you know, when we ask for accountability, personally, and I 

don’t think anybody on this dias is trying to score any political 

points, we just want what is best for the veteran. We have got 

24,000 that were affected by this mistake, but we need some real 

answers and we certainly need some real action. 

So I want to just highlight that, and I know you guys understand 

that, but what we look for up here is accountability for that veteran, that is what we are here to do. 

Why did the compensation and pension examination program 

issue a directive indicating that a generalist with special TBI training could conduct initial TBI exams when it was in direct contravention to the VBA policy? 

Mr. MCLENACHEN. Again, I have gone back and looked at all the 

information I have to determine why that was specifically issued. 

Mr. ABRAHAM. Do you know who issued that directive? 

Mr. MCLENACHEN. That again would have been generated out of 

the Compensation Service. 

Mr. ABRAHAM. Okay. 

Mr. MCLENACHEN. But as far as looking at a record of why a specific decision was made in that regard, I don’t know whether it was 

because of a lack of capacity, whether that was an issue at that 

particular time to the extent that there weren’t enough of those 

specialists available, I do not know the answer to that question. 

Again, looking back, I looked for red flags that might indicate 

where there was a problem and should somebody have identified 

it, and I was not able to find anything like that. 

Mr. ABRAHAM. And I have your word you are looking at this very 

closely? 

Mr. MCLENACHEN. Yes, I assure you that I have. 

Mr. ABRAHAM. Okay. Ms. Titus? 

Ms. TITUS. Thank you, Mr. McLenachen. 

I would like to go back to those gaps that I mentioned early on 

in my testimony. Since 2000, 350,000 servicemembers were identified by the Department of Defense as having at least one brain injury. Then after you recognized this as a problem in the VA in 

2008, 170,000 applied. So there is that one gap. And then of the 

170,000 who applied, only 75,000 have had their problem recognized and been compensated for it. 

Can you give any kind of explanation for why you think that is 

the case? 

Mr. MCLENACHEN. Yes, I have actually been thinking about that 

since you brought up that point in your introductory comments. 

And I think the one explanation I can provide is, when I looked 

back at this cohort of veterans and tried to find out, you know, 

what their current situation is, I discovered that 23,658 of them 

are already service-connected and receiving compensation, most of 

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8 

them are receiving compensation. There are a couple thousand that 

are rated at zero percent, but otherwise the rest of them are currently receiving compensation. 

So it may be the explanation, and I can try to find more specific 

information, that they are service-connected for something other 

than TBI as a result of the evaluation that was done. So that may 

be one explanation for that disparity in the numbers that you were 

seeing. 

Ms. TITUS. I know you have to apply for this if you are the veteran, and that may help to explain some of the gap between those 

diagnosed by the Department of Defense and those who apply. 

And then that brings me to the second problem, is, do you think 

sending one letter to veterans to let them know about this is 

enough? Don’t we need more of a public information campaign or 

working with the VSOs or some other kind of follow-up? Is that 

adequate? 

Mr. MCLENACHEN. You are absolutely correct. We have met with 

the VSOs and informed them of this. Yes, we sent an individual notice to each of the veterans identified, and we put out a press release. Whether that is adequate or not, you may be correct that it 

is not. 

But I wanted to address the issue you raised about we should 

just go ahead and order the exams for all these veterans. In reality, 

we thought about that issue and determined that is probably not 

the best policy in this particular case, and that is because many 

of these veterans, in fact almost 14,000 are already service-connected for traumatic brain injury and many of them at, you know, 

the higher rates of evaluation. 

So it could be misleading to go out to a veteran and suggest you 

need to come back to us and get another exam and in fact, we are 

going to schedule one for you without you making a choice. It could 

have a significant impact on their benefits. So as a matter of policy, 

we decided that the best option was to make contact with these 

veterans, fully inform them of what their options are, and let them 

make that choice. So we carefully considered the issue that you 

raised. 

Ms. TITUS. Okay. Well, I am glad to hear that. Thank you. 

I would also just ask you, now that you have evaluated the examination process for TBI, I wonder do you have any plans to continue to update that? Because new research comes about all the 

time. And also, what about other mental health conditions like 

PTSD? Because that is something that is similar to this, it might 

need updating as we go along. 

Mr. MCLENACHEN. I assure you that we continuously work closely with VHA, Ms. Murray’s staff and the Compensation Service to 

develop our policies in this area. 

The main point that really jumped out at me is, for any situation 

where we have a specialist exam that is required, we need to make 

sure we have the procedures in place so that our adjudicators are 

identifying whether the exam report that they receive was done by 

a specialist. So that is a critical issue. 

In fact, in 2015, one of the things that we did in this particular 

area was to change our adjudication procedures manual to require 

our adjudicators to check the DBQ information that they are getLeonard.horne on VACREP0180 with DISTILLER

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ting back, the disability benefits questionnaire information that 

they are getting back, to ensure that a specialist, one of the big 

four did it. So that is a 100-percent quality check that we put in 

place in our procedures manual. 

And one of the things I would like to see is, do we need to do 

that with other specialist exams that are required. 

Ms. TITUS. Yes, that is what I was getting at too. Well, thank 

you very much. 

I yield back. 

Mr. ABRAHAM. Mr. Walz? 

Mr. WALZ. Mr. Chairman, I would defer to the permanent Member of the Subcommittee Ms. Brownley first, if she would like to 

go now. 

Ms. BROWNLEY. Please, go ahead. 

Mr. WALZ. Chairman, thank you for holding this. And to the 

Ranking Member, certainly our priority here is to make sure all 

our veterans get the care that they have earned, and make sure 

they get the compensation that is necessary. So I think there are 

two tracks here. I think the contracting issue is certainly one that 

needs to be addressed, but I think there is also benefit in looking 

at how this all unfolded, and kind of the history of it. 

All too often here we get criticized for being reactive and not 

proactive, and I think it is important to note that it was on the 3rd 

of May, 2007 when H.R. 2179 was introduced on the floor, and that 

was the piece of TBI legislation that established the centers of excellence, that talked about how we did these exams and how we 

went forward. So over nine years ago people were thinking about 

this and starting to move that forward. 

Fast forward now to the situation here. There are some —in the 

midst of an error and in the midst of something that shouldn’t have 

happened, there are some positive take-aways on this. And I think 

it started, this was last summer we were starting to hear rumblings in Minnesota that they were not getting the right exams. 

There was a tenacious, young journalist named A.J. Lagoe who 

did some really fantastic journalism, some really fair reporting and 

work at Minneapolis VA, turned up that this did happen. We 

thought the numbers were about 300. Immediately the director of 

that, the medical director of that facility Dr. Kelly went ahead and 

said, yes, we made a mistake, bring them all back in. 

We were asked at that time, do you think if it happened here, 

it could have happened nationwide? And I said not only is it possible, it is probable. We asked for an IG report to go nationwide; 

they agreed to do that. That came out here in early May, and at 

that point in time, the Secretary took, I think you said, Mr. Under 

Secretary, that that was the first time equitable relief to across the 

board. 

Mr. MCLENACHEN. What is really unique about this is, the Secretary has equitable relief authority, but usually it is done on a 

case-by-case basis. And so what is unique in this circumstance 

here, is he granted equitable relief for this entire cohort of veterans, and that is the first time I am aware of that happening. 

Mr. WALZ. Yeah, us too. And I think those are positive things. 

And I think Ms. Titus brought up a great point was, is there were 

four years beforehand where it was not found and that people had 

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10 

to wait. But this seemed to me and then I watched your interview 

on camera, where I have to say it should be shown for all people 

up there that there was a respectful humbleness that a mistake 

was made, we are trying to do everything possible to make it, we 

will do what we can do moving forward on that, and it just seemed 

somewhat refreshing on that. 

So I think all of that up to this point, that is something we need 

to look at and see if there is something new happening there, but 

I think the questions being brought up about what is happening 

going forward are things that do need to be addressed. 

So if I could ask and maybe from your opinion, sir, and I think 

it got asked, Ms. Titus was getting at it a little bit, has this episode 

had any broader effect on changing how we go after these things? 

Because it felt like on this one, once a problem was identified with 

the validation of some good journalism, with the congressional 

oversight stepping in, with the IG doing it, the responses in this 

seemed to lean towards the benefit of the doubt of the veteran. 

Again, I think you answered Ms. Titus’ question. My question was 

too, is why you came to the conclusion of just sending the letter. 

But do you feel like there are some systemic lessons that can be 

learned by this? Because this is a different response, the way I see 

it, my colleagues will make up their own mind, than what we saw 

after Phoenix and some other ones, this is different. 

I am not in any way thinking we are in any way done. We have 

got 24,000 people that need to be made whole the best we can, that 

is an ongoing issue, and we can bring some of those up. But maybe, 

Mr. Under Secretary, how do you see it? What has transpired since 

this? 

Mr. MCLENACHEN. Very good points. And I would say that I can 

confirm that we have approached this somewhat differently than in 

the past, and the equitable relief is just a good example. In the 

past, where we would have maybe taken this on on a case-by-case 

basis, it is not the right thing to do in this situation when you 

know that there are a large number of veterans that are affected. 

In this case, as I said, 16,000 of them are already service-connected for TBI, and many of them are already receiving disability 

compensation. So is it the right thing to do to kind of pass it by, 

or is it the right thing to do to do the fair thing, give everybody 

the opportunity to come in for another exam and an evaluation of 

their claim? This was the right thing to do. Our VA leadership 

pressed us to do this type of thing. 

I would not go so far as to say that in the past, you know, we 

never cared about making things right for veterans, that is absolutely not true, but this approach, I think you are correct, is different than we have used before. 

Mr. WALZ. Before I yield back, my final point on this though, is 

that it always seemed there was a bit of a bunker mentality. Who 

made the decision to let you go on camera and make an admission 

that an error was made and you are trying to fix it? That was different to me. 

Mr. MCLENACHEN. We had a lot of discussions about that with 

our public affairs people and the suggestion was made that it 

would be a good thing to do to help get the word out, and state the 

Department’s position, and I was happy to do it. 

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11 

Mr. WALZ. Well, if I can second that. Transparency is something 

very refreshing and it did not go unnoticed here. 

So thank you, Mr. Chairman. I yield back. 

Mr. ABRAHAM. Thank you, Mr. Walz. 

Ms. Brownley? 

Ms. BROWNLEY. Thank you, Mr. Chairman. And I think I just 

probably have a few follow-up questions to the questions that have 

already been asked. But, you know, I still just want to go back to 

this issue of the appropriate outreach to the veterans who might 

not have received the services that they deserved. 

And of course the 11,000 veterans who are not already receiving 

a service-connected compensation benefit, they seem to me to be in 

a special category, because they have never gone through this process before. And I agree with the Ranking Member that just one letter just doesn’t seem to be enough, that we need to be much more 

aggressive and have a sequence of times in which we are going to 

contact veterans. 

So first, you know, is there anything special that you will do visa-vis the 11,000 veterans who haven’t received service-connected 

compensation? And, secondly, if you had a list and a breakdown, 

for example I would love to know the veterans in my congressional 

district, so that I can reach out to them personally to make sure 

that we are proactive. We spend a lot of time in my district office 

helping veterans with their benefits in a reactive way, it would be 

nice to be proactive in our office. 

So if you could address those two things. 

Mr. MCLENACHEN. We definitely have the information that you 

are looking for and will be happy to provide it to you. We have it 

broken down by state and by regional office, so state of residence 

by regional office, we can provide that data. We have provided most 

of it to the Committee staff, I believe, but I would be happy to 

make sure we get that to you. 

Ms. BROWNLEY. So I think that I want that information. I think 

that information should be disseminated out across the country, so 

that, you know, the infrastructure of the VA across the country, regional centers and the like, can work to get this information out 

and follow-up with what has been done in the central office. 

So I think that that is—I think would be a good step in terms 

of following up on what the central office has already done. 

Mr. MCLENACHEN. And if I could just address your other point, 

which was— 

Ms. BROWNLEY. Yes. 

Mr. MCLENACHEN [continued]. —and actually Ranking Member 

Titus’ point, is the letter and the outreach we have done so far 

enough? You may be perfectly correct that it is not enough. 

We sent the letters out July 1st, we did a batch process. We will 

monitor the information that we are getting back. It may be that 

we need to look at doing other outreach, and we will certainly take 

a harder look at that. 

Ms. BROWNLEY. Okay, very good. 

And that leads me to another question just in terms of monitoring this program as you have reached out, the number of veterans coming back for reexamination, veterans coming for their 

first examination. And I always worry about, in many of these 

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12 

hearings we talk about our staffing issues and our pipeline issues, 

and the fact that this program is built upon, you know, four specialties to make an appropriate diagnosis; do we have enough? 

Have you sort of estimated the amount of demand that is going to 

take place, and do we have the appropriate personnel to see these 

veterans in a timely way? 

Mr. MCLENACHEN. We do believe that we have now, as I said, 

the contracts have been modified. And so with respect to VBA’s 

contract examinations, the answer is yes. 

And maybe I will defer to Ms. Murray to address VHA’s capabilities in the area. 

Ms. MURRAY. Thank you, Dave. 

For VHA, we do have the capacity to see these veterans when 

the exam request is ordered. My office will be providing follow-up 

education and training to the VHA clinics on this. We have also 

sent out a certification that was signed by the network directors assuring us that all of their facilities are compliant. And then I will 

be setting up a monitoring tool within VHA to look at these periodically to ensure compliance. 

Ms. BROWNLEY. Thank you, thank you very much. 

And I guess in conclusion, I would just like to agree with my colleague Mr. Walz that an admission of a mistake goes a long way. 

And I think for all of us on the dias, you know, we know that we 

can’t be perfect all of the time, we want to be in a mode of continuous improvement, but when we recognize we make a mistake, just 

admit it, and do our very best to fix it. So I appreciate those comments and appreciate your admission to a mistake in the past. 

So with that, I will yield back. 

Mr. ABRAHAM. Thank you, Ms. Brownley. 

And I will start kind of a second line of questions here. And, 

again, I will echo Mr. Walz, as everybody up here, you know, we 

are appreciative of the VA cowboying up and, you know, coming up 

to the table, but we still have to address the issues that brought 

us to this point. We have still got veterans that didn’t receive compensation that probably should have, they are having to use time 

and treasure to be reexamined. 

So we still need to look deeply. I want you to continue your investigation; I know you will. But before we hold hands on the 

beach and sing ‘‘Kumbaya,’’ we need some accountability here. 

One last question or maybe two. When the VBA contracts were 

initially awarded in 2010, they required the big four to do the TBI 

exams. Now, in early 2011, that is when I think the contracts were 

modified to allow any doctor with TBI training to perform these 

exams. 

So the question is, why was this requirement relaxed just a few 

months after awarding the contracts? And I understand that you 

weren’t Deputy Secretary in 2010; is that correct? 

Mr. MCLENACHEN. That is correct, I was not. 

Mr. ABRAHAM. Who was? 

Mr. MCLENACHEN. I do not recall who was at that time, but I 

could certainly get back to you with that information. 

Mr. ABRAHAM. I appreciate that. Okay. 

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13 

So why were those contracts amended just a brief time after they 

were specified that it had to be the big four that were to do the 

exams? 

Mr. MCLENACHEN. Unfortunately, I don’t have the answer to 

that question. Again, if I was to guess, I would be speculating, you 

know, when I mentioned the capacity issues. 

I think, Mr. Chairman, what we can really look at here is the 

difference between the procedure for issuing new policy and acquisitions in the Federal Government. I mean, we have to go through 

the Federal acquisitions process to set up these contracts and to 

modify them, and there is not a neat connection between the policy 

process and the contracting process. And so I think that is where 

we really need the improvement here, is to make those two things 

link up. 

Mr. ABRAHAM. All right. So when you went back and modified 

the contracts in 2014, is the way I understand it, I guess why 

didn’t you take action then to go back and give some relief to the 

veterans? 

Mr. MCLENACHEN. Well, you are correct, 2013 for one contractor, 

2014 for the other. What I am able to see when I go back and look 

at this is, there were no red flags at that point to indicate that 

these exams were being done incorrectly. The prior contracts were 

not clear that this was a mandatory requirement, but we had no 

red flags, at that point that I can see, that were telling us that 

these exams weren’t being done correctly. 

The contracts did prescribe, as you mentioned, that they were 

done by one of the big four or by a generalist that has had some 

TBI training. Should somebody at that time have gone back and 

done the data analysis that was available at that time? I don’t dispute that, maybe that should have been done at that time. But I 

just don’t see any red flags telling us at that time that these exams 

were not being done correctly. 

So the contracts were modified to be consistent with the policy 

guidance that was out. 

Mr. ABRAHAM. Okay, thank you. 

Ms. Titus, do you have further questions? 

Ms. TITUS. Just a quick one. Thank you, Mr. Chairman. 

You say there weren’t any red flags, but there were problems. So 

I haven’t really heard a good answer for why the quality control 

procedures failed, why it took so long to fix it, and what we have 

kind of learned from this experience going forward. 

Mr. MCLENACHEN. Okay. One of the things that I learned was, 

in the past, our adjudication procedures were that our adjudicators 

were not to question whether the examiner had the credentials 

that were required because that was taken care of in the exam request and provision process. We have changed that, we changed 

that in 2015. As I said, a hundred-percent quality check. If it 

doesn’t indicate on there that the exam was done by a specialist, 

one of these four specialists, the adjudicator is supposed to determine that it was an inadequate exam, and it should be returned 

and corrected by the contractor or any other examiner. So we did 

learn those things. 

In addition to that, as we move into expanded mandatory contracting of exams in the Compensation Service, we are setting up 

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14 

a new staff that is going to be led by a senior executive that is 

going to have oversight over this entire process to include expanded 

quality review, contract administration, all the things that you 

would think you would expect when you are administering these 

type of contracts that are providing these exams, that staff is in the 

process of being set up now. And I may ask Mary whether she has 

any additional information on where we are at on that. 

Ms. GLENN. Thank you for the question. 

Yes, ma’am, we are in the process of setting up a contract examination program office, which we will collaborate with VHA on all 

the policy/procedural type of things that we are doing. The staff is 

in the process of being set up, some of the people are already on 

staff, and have already taken some site visits to some VHA facilities and met with the C and P clinic directors there. 

So we are hopeful that we will be fully staffed and ready to go 

within the next couple of months. And we will have oversight, as 

Mr. McLenachen said, of the policy and process of contract exam 

administration. 

Mr. ABRAHAM. Mr. Walz? 

Mr. WALZ. Well, thank you. And we are hitting on some of the 

bigger topics, and I do think that, again, I think Dr. Abraham and 

all these Members continuing to push on continuous improvement, 

the accountability, there are things here. I am reading a news story 

you probably saw, maybe, I don’t know if you saw, Mr. Under Secretary, last night a veteran who waited seven years to get this 

cleared, and that is a lot of time and what we know about it. So 

I am still frustrated on some of this. 

And I am still trying to get at this quality control piece, and I 

know you probably explained it, because I think about this. We had 

one of these incidents happen, and I know it is more difficult with 

mental health issues than it is with physicals, we had the contaminated colonoscopy scopes. And as it turned out what happened with 

those, when we were getting veterans that were getting hepatitis 

and other things from that, that they went back and looked at it, 

and it finally showed we had several different suppliers of those 

and one of them had a two-way valve on it, and there was no 

checklist for the cleaning of these things. 

So what the VA did after that was instituted a checklist on that 

this has to happen when you clean a colonoscopy scope and this is 

how it goes back together. 

Is that happening across the board? Because I am still hearing 

some of these folks that are still fighting to get this. This gentleman in Minnesota went to a private doctor, they said he had 

TBI. He came back three times and the VA kept telling him no. 

After this ruling, he came back again and this time they said yes. 

So my question is, what were they missing in the diagnostic 

piece of this, not the administrative piece? What has changed in 

how we do that? And I know you kind of got at it, but there is a 

quality control gap here that allowed this to go undiagnosed. 

Mr. MCLENACHEN. I am going to ask Ms. Murray if she can address the last part of your question about the criteria, but as far 

as the quality control piece, without a doubt improvement is needed in that area, and Ms. Glenn just described, you know, how we 

are going to beef that up. 

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15 

When I look back at the quality review process that was used in 

the past, much of that is addressed in the contract regarding what 

the contractor needs to do, but also we had a quality review process 

that perhaps one could say was a little light. If you were taking 

a look at it you could say, well, yes, it is statistically significant 

that you were doing that number, but is this what should have 

been required at that time? 

There is going to be additional staff addressing that in the future, as Ms. Glenn described. 

So a quality check is very important, particularly if you have a 

requirement that a specialist has to do something. And to me, the 

best way to get at that is, we shouldn’t be using an exam unless 

it was done by one of those specialist. So if our adjudicator gets an 

exam, information from an exam and does not see that it was done 

by a specialist, it should be an inadequate exam, and it should be 

returned. The contractor should fix it or VHA should clarify whether it was done by a qualified examiner and provide us a new one. 

Mr. WALZ. What is the redress procedure for these folks to go 

back? Because this was a gentleman who went to the private sector 

and had medical bills there and things like that. I know some of 

these are going to be case-by-case, and I think it is what Ms. 

Brownley was asking, so all of us can get at this, because I have 

still got some of these 300 who have not received their payments 

yet. 

And so what is their redress process? 

Mr. MCLENACHEN. Right. So for the 317 or so in Minnesota, as 

far as I know, we have re-adjudicated every one of them. The one 

holdup was the equitable relief, to provide them their retroactive 

benefits. 

And just for your information, approximately 55 or 56 or so, we 

were able to address right away without them coming back in, because it was still within the appeal period. For the others after 

that, out of the 317, I believe about 120, and I am using approximate numbers, it was about 120 came in. Of that number, I believe 

56, 56 or 58 received service-connection that they didn’t receive before. 

So that is a pretty high number, whether that was because we 

were taking a fresh look at it, and it was not because of a diagnostic criteria change or anything like that, and we had to attribute that to the fact that it was done by the specialist rather 

than by a generalist. And that informed us on the need to do the 

nationwide review that you discussed. 

Mr. WALZ. Right. 

Mr. MCLENACHEN. So, I am very confident that we are going to 

address the quality issue that you have raised. We need to do better at that; in my view, that is going to be done at the adjudicator 

level. 

And we have already seen, just for your information, in the data 

that we have, in 2015 there were only six contract exams that were 

not done with a specialist. So from 2014 when we changed the contract to 2015, it drops off to six. 

In addition to that, in 2015 we instituted the new procedures on 

checking to make sure that a specialist at the adjudication level did 

one of the exams. I am hoping that that will address— 

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16 

Mr. WALZ. So there is a checklist now? Just like the cleaning of 

that endoscope or whatever, now there is— 

Mr. MCLENACHEN. There is. There is a procedure in our adjudication manual that says check it. If it is not done by a specialist, 

here is what you do with it. And we are actually looking whether 

we can beef that instruction up a little bit. 

Mr. WALZ. Thank you. 

I yield back. Thank you, Chairman. 

Mr. ABRAHAM. Ms. Brownley. 

Ms. BROWNLEY. In terms of moving forward, does the Choice Act 

apply in terms of—if a veteran has to wait longer than 30 days to 

be assessed by one of these specialty docs, can they go to their own 

community to get that? 

Mr. MCLENACHEN. I will defer to Ms. Murray and see whether 

she can answer that question. 

Ms. MURRAY. Sure. Thank you for the question. 

The C and P exams at this time does not fall under the Choice 

Act and so— 

Ms. BROWNLEY. Okay. That’s what I thought, that’s what I 

thought. 

Ms. MURRAY. Yes. 

Ms. BROWNLEY. And I just wanted to follow-up on the Los Angeles regional office. You might remember that in September of 2015, 

the VA Inspector General released a report about the Veterans 

Benefits Administration office in Los Angeles, and the report noted 

that staff was incorrectly processing TBI claims. And I just want 

to make sure, get your assurance, I feel pretty confident that there 

has been—that they are doing a good job now in Los Angeles, but 

I just wanted to hear from you that you also concur that things are 

moving well there? 

Mr. MCLENACHEN. Yes. I am familiar with that report. Fortunately, it is unrelated to the topic we are discussing here. The IG 

in a routine benefits examination that they did at the office discovered that there was training and second-signature compliance 

issues, those were addressed. We did additional training, and we 

are ensuring compliance on the second signature. That is a quality 

check, as we have been discussing, that is being followed. The IG 

is confident that that is the case, and they closed the recommendation. 

So I can assure you that we have addressed that. 

Ms. BROWNLEY. Thank you very much. 

And I yield back. 

Mr. ABRAHAM. Oh, thank you so much and, you know, I appreciate you being here. And the changes that you are describing 

going forward, they sound good, and I will trust that you will follow-up. 

I guess the only lingering or one of the lingering questions, I still 

don’t have a name and a title of who is responsible for issuing that 

directive on the generalists getting TBI training that could give the 

exam, and I would like that. 

And I am going to ask a rhetorical question in closing, because 

on the same thing, the VBA allowed any doctor with specialized 

training through the Disability Evaluation Management Office to 

conduct these exams, but the way I understand it that training just 

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17 

entailed an online testing and online training. The certification 

didn’t even exist yet in 2011 when VBA contracts first used it as 

a qualification. So the question, and I will use it rhetorically, because I think everybody up here knows the answer, how is that 

equivalent to a medical specialty? Well, an online training exam is 

not equivalent to a medical specialist. A medical specialty takes 

years of training, years of residencies, years of fellowships to get 

to that point. 

But I look forward to working through the issues and follow-up 

with certainly my colleagues here and the Department of VA. And, 

again, thank you for your forthright statements and, you know, 

owning up and trying to do the right thing. 

As initially noted, the complete written statement of today’s witnesses will be entered into the hearing record. 

I ask unanimous consent that all Members have five legislative 

days to revise and extend their remarks, and include extraneous 

material. 

Hearing no objection, so ordered. 

I thank the Members and the witnesses. The hearing is now adjourned. 

[Whereupon, at 10:51 a.m., the Subcommittee was adjourned.] 

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(18) 

A P P E N D I X 

Prepared Statement of Dave McLenachen 

Opening Remarks 

Good morning, Chairman Abraham, Ranking Member Titus, and Members of the 

Committee. Thank you for the opportunity to review with you the Department of 

Veterans Affairs’ (VA) process for ensuring that all Veterans are properly evaluated 

for Traumatic Brain Injury (TBI). Accompanying me today is Patricia Murray, Chief 

Officer, Office of Disability and Medical Assessment, and Mary Glenn, Acting Deputy Director, Operations, Compensation Service. 

Background 

Since 2007, medicine around traumatic brain injuries (TBI) has been a rapidly 

evolving science. Recognizing that TBI is a signature injury of the conflicts in Iraq 

and Afghanistan, VA instituted a policy requiring one of four specialists – a psychiatrist, physiatrist, neurosurgeon, or neurologist – to complete initial TBI exams for 

disability compensation claims when VA does not already have a diagnosis. VA selected these specialists because they have the most experience with the symptoms 

and effects of TBI, and to take extra steps to ensure that Veterans seeking disability 

compensation for this complex disability receive the benefits to which they are entitled. VA also updated its rating criteria in 2008 to keep pace with the evolving understanding of TBI. Unfortunately, as more research became available, VA issued 

a series of guidance documents that inadvertently created confusion regarding the 

policy. 

In October 2014, the Minneapolis VA Medical Center reviewed initial TBI exams 

for disability compensation claims completed since 2010 and identified approximately 300 Veterans whose exams were not conducted by one of the four designated 

specialists. Thereafter, the Veterans Benefits Administration (VBA) and the Veterans Health Administration (VHA) initiated a nationwide review of initial TBI 

exams for disability compensation claims performed between 2007 and 2015. The results of this review revealed that between 2007 and 2015 approximately 24,000 Veterans received initial TBI exams for disability compensation claims that were not 

conducted by one of the four designated specialists. Further, the review found that 

VHA conducted approximately 5,300 of these exams, while VBA contract examiners 

conducted approximately 19,000. VHA facilities have certified that initial TBI disability compensation examinations are now being conducted by one of the designated specialists. In addition, VBA modified its exam contracts in 2013 and 2014 

to clearly state that initial TBI exams must be performed by one of the four designated specialists when no diagnosis is of record. The recently completed national 

review confirmed that VBA contract examiners have been complying with this requirement under the terms of the modified contracts. 

Corrective Actions Taken by VA 

VA regrets that these examinations were not completed by a designated specialist 

the first time. To minimize burden and ensure no financial harm to affected Veterans, the Secretary of Veterans Affairs granted equitable relief to all of the more 

than 24,000 identified Veterans on May 3, 2016. The relief authorizes VA to offer 

new TBI exams, conducted by one of the four designated specialists, to all identified 

Veterans. Equitable relief is a unique remedy that allows the Secretary to correct 

an injustice to a claimant, where VA is not otherwise authorized to do so within 

the scope of the law. 

This equitable relief further enables VA to take action on any new examinations 

without requiring Veterans to submit new claims, and allows VA to award an effective date as early as the date of the Veteran’s original TBI claim and provide any 

retroactive benefits due. VBA has contacted all affected Veterans via letter to notify 

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19 

essed. These Veterans can initiate reprocessing of their claims by either calling a 

dedicated phone number or otherwise contacting VA. 

Affected Veterans have one year from the date they are notified of the grant of 

equitable relief in which to request new examinations. More than 13,000 of these 

affected Veterans are already receiving service-connected compensation benefits for 

TBI at a 10-percent disability evaluation or higher, which means that the diagnosis 

has already been established. 

VA has also clarified its guidance documents that may have created confusion regarding the policy. We have confirmed that TBI policy guidance is now clear and 

VA is confident that examiners now comply with its TBI compensation examination 

policy. 

Closing Remarks 

VA takes very seriously its obligation to care for disabled Veterans, their families, 

and their survivors. VA understands the importance of an accurate exam to support 

Veterans’ disability claims. VA is committed to improving the medical exam experience and has identified it as one of the Department’s 12 MyVA Breakthrough Priorities. 

This concludes my testimony, Mr. Chairman. I would be pleased to address any 

questions you or other Members of the Committee may have. 

Æ 

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