U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

51–495 PDF 2010

S. HRG. 111–265 

VETERANS’ DISABILITY COMPENSATION: 

FORGING A PATH FORWARD 

HEARING 

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 29, 2009 

Printed for the use of the Committee on Veterans’ Affairs 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate 

(II) 

COMMITTEE ON VETERANS’ AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

PATTY MURRAY, Washington 

BERNARD SANDERS, (I) Vermont 

SHERROD BROWN, Ohio 

JIM WEBB, Virginia 

JON TESTER, Montana 

MARK BEGICH, Alaska 

ROLAND W. BURRIS, Illinois 

ARLEN SPECTER, Pennsylvania 

RICHARD BURR, North Carolina, Ranking 

Member 

LINDSEY O. GRAHAM, South Carolina 

JOHNNY ISAKSON, Georgia 

ROGER F. WICKER, Mississippi 

MIKE JOHANNS, Nebraska 

WILLIAM E. BREW, Staff Director 

LUPE WISSEL, Republican Staff Director 

(III) 

C O N T E N T S 

JULY 29, 2009 

SENATORS 

Page 

Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii ........................... 1 

Tester, Hon. Jon, U.S. Senator from Montana ...................................................... 2 

Johanns, Hon. Mike, U.S. Senator from Nebraska ............................................... 2 

Burr, Hon. Richard, Ranking Member, U.S. Senator from North Carolina ....... 17 

Prepared statement .......................................................................................... 17 

Begich, Hon. Mark, U.S. Senator from Alaska ..................................................... 18 

Murray, Hon. Patty, U.S. Senator from Washington ........................................... 20 

Prepared statement .......................................................................................... 20 

Brown, Hon. Sherrod, U.S. Senator from Ohio ..................................................... 70 

WITNESSES 

Dunne, Patrick W., RADM U.S. Navy (Ret.), Under Secretary, Benefits, U.S. 

Department of Veterans Affairs; accompanied by Thomas J. Pamperin, 

Deputy Director for Policy, Compensation and Pension Service, Veterans 

Benefits Administration ...................................................................................... 2 

Prepared statement .......................................................................................... 4 

Koch, Noel, Deputy Under Secretary, Office of Transition Policy and Care 

Coordination, U.S. Department of Defense ........................................................ 7 

Prepared statement .......................................................................................... 8 

Allen, Michael P., Professor of Law, Stetson University ...................................... 30 

Prepared statement .......................................................................................... 31 

Bertoni, Daniel, Director, Disability Services, Government Accountability Office ......................................................................................................................... 40 

Prepared statement .......................................................................................... 42 

Wilson, John L., Lt. Col., USAF (Ret.), Associate National Legislative Director, Disabled America Veterans .......................................................................... 60 

Prepared statement .......................................................................................... 61 

Response to questions arising during hearing by: 

Hon. Patty Murray ........................................................................................ 66 

Hon. Sherrod Brown ..................................................................................... 73 

APPENDIX 

Jackson, Robert, Assistant Director, National Legislative Service, Veterans 

of Foreign Wars of the United States; prepared statement .............................. 79 

Allen, Michael P., Professor of Law, Stetson University; article ......................... 82 

(1) 

VETERANS’ DISABILITY COMPENSATION: 

FORGING A PATH FORWARD 

WEDNESDAY, JULY 29, 2009 

U.S. SENATE, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:15 a.m., in room 

418, Russell Senate Office Building, Hon. Daniel K. Akaka, Chairman of the Committee, presiding. 

Present: Senators Akaka, Murray, Brown, Tester, Begich, Burr, 

and Johanns. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA, CHAIRMAN, 

U.S. SENATOR FROM HAWAII 

Chairman AKAKA. This hearing of the Senate Committee on Veterans’ Affairs will come to order. This morning we continue our 

work on VA’s disability compensation process. 

Today’s hearing will focus on improvements that can be made in 

reviewing disability compensation claims. My goal is to ensure that 

claims are adjudicated accurately and in a timely fashion. Everyone involved realizes that there is no quick fix to solving all the 

problems with disability claims, but the Committee, teaming with 

the Administration and those who work with veterans, intends to 

do all it can to improve this situation. 

To bring optimal change to a process that is as complicated and 

important as this, we must be deliberate, focused and open to input 

from all who are involved in this process. It is in that spirit that 

we have held previous hearings and it is the backdrop of this hearing as well. 

To be fair, claims processing is a complicated matter. There have 

been many changes to the claims processing landscape in recent 

years. Many of those changes have come from policies intended to 

make improvements piece-by-piece. Unfortunately, these piece by 

piece reforms have failed to produce the results veterans deserve. 

While many claims processing issues are internal to VA, this 

Committee recognizes that solutions go beyond the VA. This is especially true for transitioning servicemembers who look to VA and 

DOD to help them receive the care and benefits they have earned. 

The Disability Evaluation System Pilot Program is one example 

of VA and DOD working collaboratively to ease the transition of 

disabled servicemembers from military to civilian life. Today, I 

hope to hear from VA and DOD about the status of this program 

and their plans for its future. 

2 

I reiterate that our goal is to provide veterans with accurate and 

timely resolution to their cases. No idea is too bold. We must act 

quickly, yet responsibly, to rectify this situation. I, again, welcome 

everyone to today’s hearings. 

May I call on Senator Tester for any opening remarks? 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Well, thank you, Mr. Chairman. I think I am 

going to forego my opening remarks and will make the opening remarks during the questions. So, thank you, Mr. Chairman. 

Chairman AKAKA. Thank you very much, Senator Tester. 

Senator Johanns, your opening statement please. 

STATEMENT OF HON. MIKE JOHANNS, 

U.S. SENATOR FROM NEVADA 

Senator JOHANNS. Mr. Chairman, I will do likewise. That is a 

good idea. 

Chairman AKAKA. Thank you very much. 

I want to welcome our principal witness from VA, the Honorable 

Patrick Dunne. It is good to have you, the Under Secretary for Benefits, here. He is accompanied by Thomas J. Pamperin, Deputy Director for Policy at the Compensation and Pension Service. I also 

want to welcome DOD’s witness, Noel Koch, Deputy Under Secretary, Office of Transition Policy and Care Coordination. 

I thank all of you for being here this morning. Your full testimony will, of course, appear in the record. 

Admiral Dunne, will you please begin with your testimony? 

STATEMENT OF PATRICK W. DUNNE, RADM U.S. NAVY (RET.), 

UNDER SECRETARY, BENEFITS, U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY THOMAS J. PAMPERIN, 

DEPUTY DIRECTOR FOR POLICY, COMPENSATION AND PENSION SERVICES, VETERANS BENEFITS ADMINISTRATION 

Admiral DUNNE. Good morning, Mr. Chairman, Members of the 

Committee. Thank you for the opportunity to appear today to discuss the direction of VA’s Disability Compensation Program. I fully 

share the concerns of this Committee, veteran service organizations, and the veteran community regarding the timeliness of disability benefits claims processing. 

Our mission is to deliver to veterans first-rate care and service. 

Where we do not meet high standards, such as with timeliness and 

benefits adjudication, we will find the root causes and fix them. 

Our leadership team is deeply committed to changing the paradigm 

of today’s lengthy and paper-bound disability claims processing. 

The number of claims completed during this fiscal year is 10 percent greater than in the same period in 2008. We have improved 

average days to complete on rating claims from 178 days at the end 

of 2008 to 161 days at the end of June. We currently have approximately 406,000 disability claims pending, which includes all disability claims received, whether pending only a few hours or significantly longer. 

This inventory is dynamic rather than static. Completed claims 

are continuously removed from the inventory while new claims are 

3 

added. We currently average over 80,000 new rating-related claims 

added to the inventory each month. 

Our strategic goal for completing disability claims is 125 days. 

We consider all disability claims pending for more than 125 days 

to be our claims backlog. At the end of June, 144,652 rating claims, 

or 35 percent of the inventory, were pending for more than 125 

days. 

We believe our disability claims workload is increasing largely 

due to our many outreach efforts. We conducted thousands of transition briefings, including pre- and post-deployment briefings for 

Reserve and National Guard members and briefings for military 

personnel stationed overseas. All separating servicemembers are 

encouraged to attend Transition Assistance Program briefings. We 

project that we will brief over 300,000 new veterans this year. We 

have also hired nearly 4,200 new employees since January 2007. In 

addition, to leverage the knowledge and experience of retired 

claims processors, we hired more than 100 recent retirees as rehired annuitants to assist in completing rating decisions and train 

and mentor our new employees. 

Last September, we partnered with Booz Allen Hamilton to 

conduct a review of the claim development process to divide recommendations on cycle time reduction. On July 20, we began a pilot 

at the Little Rock Regional Office to implement those 

recommendations. 

Our core IT modernization strategy includes implementing a 

business model for claims processing that is less reliant on the acquisition and storage of paper documents. Our comprehensive plan 

will employ imaging and computable data as well as enhanced electronic workflow capabilities, enterprise content and correspondence 

management services, and integration with our modernized payment system. We are also exploring the utility of business-rulesengine software for both workflow management and improved decisionmaking. 

We developed strategic partnerships with two recognized experts 

in the field of organizational transformation. First, MITRE Corporation is actively providing strategic program management support as well as support for the overall paperless initiative. Booz 

Allen was recently engaged to provide business transformation 

services as part of a pilot project for business process reengineering, organizational change management, workforce planning, and 

organizational learning strategies. The Providence Regional Office 

will serve as our business transformation lab—the focal point for 

convergence of process reengineering and technology. 

We continue to work collaboratively with DOD to enhance the 

transition of servicemembers to successful civilian lives with programs such as Benefits Delivery at Discharge and Quick Start for 

servicemembers separating or demobilizing from the active force, 

and the joint Disability Evaluation System, or DES, Pilot. We believe the revised DES Pilot is a better process for servicemembers. 

It has been faster and more transparent than the traditional 

process and has reduced appellate activity. The pilot is now the 

standard process at 21 military treatment facilities, accounting for 

almost 30 percent of all servicemembers going through the DES 

process. 

4 

As of July 12th, over 3,000 servicemembers enrolled in the pilot 

and 560 completed the process. Those servicemembers qualified for 

veteran benefits are informed of entitlements from both departments when they are notified of the Physical Evaluation Board, or 

PEB’s, decision. 

Mr. Chairman, this concludes my testimony, and I will be happy 

to respond to any questions. 

[The prepared statement of Admiral Dunne follows:] 

PREPARED STATEMENT OF PATRICK W. DUNNE, UNDER SECRETARY FOR BENEFITS, 

VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS

Chairman Akaka, Ranking Member Burr, and Members of the Committee: Thank 

you for providing me the opportunity to appear before you today to discuss the direction of the Veterans Benefits Administration’s (VBA) disability compensation program. Accompanying me today is Mr. Tom Pamperin, VBA’s Deputy Director of 

Compensation and Pension Service, Policy and Procedures. My testimony will focus 

on the challenges VBA faces processing claims and what we are doing to overcome 

those challenges. I will also discuss the status and future of the Disability Evaluation System (DES) Pilot. 

ADDRESSING BACKLOG

I fully share the concerns of this Committee, Veterans Service Organizations, and 

the Veteran community regarding the timeliness of disability benefit claims processing. Our mission at VA is to deliver to Veterans—our clients—first rate care and 

services. Where we do not meet high standards, as is case with timeliness of benefit 

adjudication, we will find the root causes and address the issue. Our leadership 

team is deeply committed to changing the paradigm of today’s lengthy and paperbound disability claims processing. 

VBA is completing more claims than ever before. The number of claims completed 

this fiscal year is 10 percent greater than the same period in fiscal year 2008. We 

currently have approximately 406,000 disability claims pending in our inventory, 

which includes all disability claims received, whether pending only a few hours or 

significantly longer. This entire inventory of pending disability claims is frequently—and incorrectly—referred to as the ‘‘claims backlog.’’ The inventory is dynamic rather than static. Completed claims are continuously removed from the inventory while new claims are added. 

VBA’s pending inventory of claims is bundled into two categories: rating workload 

and non-rating workload. The rating workload is composed of original and reopened 

claims for disability compensation and/or pension. This workload is how VBA traditionally measures its claims inventory. We consider these claims the core of our 

claims processing activity because they represent Veterans awaiting an entitlement 

decision for service-connected disability compensation or non-service-connected pension benefits. At the end of June 2009, VBA’s rating-related inventory was 406,056 

claims. Of these, 270,863, or 66.7 percent, were reopened claims, which include 

claims for increased benefits, newly claimed disabilities for Veterans who have previously filed claims, or additional evidence submitted to reopen a previously denied 

claim. 

Non-rating workload includes dependency adjustments on active compensation 

awards, income adjustments on pension awards, and eligibility determinations for 

ancillary benefits like automobile grants, clothing allowances, and special housing 

grants. At the end of June 2009, the non-rating inventory was 219,124 claims. This 

portion of VBA’s workload varies during the year due to the cyclical nature of the 

income and eligibility verification processes associated with pension workload. During the second and third quarter of the fiscal year, inventory typically fluctuates by 

as much as 50,000 claims. 

The steady and sizable increase in workload is a significant challenge in improving service delivery of compensation and pension benefits. During fiscal year 2008, 

VBA received 888,000 rating claims and 755,000 non-rating claims for a total of 

more than 1.6 million. In the third quarter ending June 30, we completed over a 

quarter of a million rating-related claims and nearly 210,000 non-rating claims. We 

currently average over 80,000 new rating-related claims added to the inventory each 

month, and we project we will receive nearly one million new disability claims this 

year. Rating-related claims received are up 14.5 percent compared to the same period in fiscal year 2008. Despite a 10.3 percent increase in claims completed, the 

5 

rating-related inventory has increased from 379,842 at the end of fiscal year 2008 

to 406,056 at the end of June 2009. 

Although the inventory of rating claims has increased by approximately 26,000 

this year, we have made progress in improving the timeliness of our decisions. VBA 

has improved average days to complete on rating claims from 178.9 days at the end 

of fiscal year 2008 to 161.3 days at the end of June 2009. We have made similar 

progress in improving non-rating timeliness from 109.4 days at the end of fiscal year 

2008 to 88.9 days at the end of June 2009. The combined fiscal year 2009 timeliness 

for all rating and non-rating claims completed through June 2009 is 129 days. 

VBA’s strategic goal for completing disability claims is 125 days. We therefore 

consider all disability claims pending for more than 125 days to be our ‘‘claims backlog.’’ At the end of June 2009, 144,652 rating claims, or 35.6 percent of the inventory, were pending for more than 125 days. 

We acknowledge that our disability claims workload is increasing, which we believe is largely due to VBA’s many outreach efforts. Our disability claims receipts 

this year are up 13 percent over the same period last year. We have conducted thousands of transition briefings, including pre- and post-deployment briefings for Reserve and National Guard members and briefings for military personnel stationed 

overseas. All separating servicemembers are encouraged to attend Transition Assistance Program (TAP) briefings to learn about the benefits available to them and receive assistance in applying for their benefits. We project we will brief over 300,000 

new Veterans this year. 

Serving our seriously injured servicemembers returning from the current conflicts 

remains our top priority. The average time to complete these claims is 45 days. All 

of these efforts are a part of a dynamic shift to an organization that advocates and 

reaches out to Veterans to inform them of their benefits and to assist them in applying for them. 

IMPROVEMENT INITIATIVES

VBA is aggressively hiring across the Nation, and we have hired nearly 4,200 new 

employees since January 2007. Because it takes at least 2 years for a new employee 

to become fully trained in all aspects of claims processing, we are only now beginning to see the full impact of those employees hired at the outset of our hiring initiative. We completed 10.3 percent more claims through June 2009 than we completed in the same period during 2008, and 19.6 percent more than the same period 

in 2007. Our newly hired workforce will continue to progress in delivering more decisions to Veterans. 

In order to leverage the knowledge and experience of recently retired claims processors, VBA hired more than 100 recent retirees as rehired annuitants. Rehired annuitants assist in completing rating decisions and train and mentor new employees. 

In September 2008, VBA partnered with Booz Allen Hamilton (BAH) to conduct 

a review of the rating-related claim development process to provide recommendations to improve the process with an emphasis on cycle time reduction. During its 

study, BAH interviewed VBA leadership, conducted site visits to regional offices, 

and met with front-line employees. At the conclusion of its review, BAH recommended VBA apply Lean Six Sigma production practices to claims processing to 

facilitate claims movement, thereby reducing processing time. On July 20, we began 

a pilot to implement BAH’s recommendations. 

INFORMATION TECHNOLOGY MODERNIZATION

VBA is taking additional initiatives to improve claims processing. We are modernizing our information technology by investing in the migration of compensation and 

pension claims processing to a paperless environment. We have successfully used 

imaging technology and computable data to support claims processing in our Insurance, Education, and Loan Guaranty programs for many years. 

Our core information technology modernization strategy includes implementing a 

business model for compensation and pension claims processing that is less reliant 

on the acquisition and storage of paper documents. Our comprehensive plan, the 

Paperless Delivery of Veterans Benefits Initiative, will employ a variety of enhanced 

technologies to support end-to-end claims processing. 

In addition to imaging and computable data, we will incorporate enhanced electronic workflow capabilities, enterprise content and correspondence management 

services, and integration with our modernized payment system. We are also exploring the utility of business-rules-engine software for both workflow management and 

improved decisionmaking by claims processing personnel. 

6 

BUSINESS TRANSFORMATION EFFORTS

While the use of advanced technologies is critical to our service-delivery strategy, 

we must also address our business processes. To that end, VBA developed strategic 

partnerships with two recognized experts in the field of organizational transformation. MITRE Corporation, a manager of federally Funded Research and Development Centers, has been supporting VBA on the VETSNET project since 2006. 

MITRE is now actively providing strategic program management support, as well 

as support for the overall Paperless Initiative, addressing multiple areas of focus. 

Additionally, BAH was recently engaged by VBA to provide business transformation services. BAH assists VBA in business process re-engineering, organizational change management, workforce planning, and organizational learning strategies to ensure that VBA positions itself to take best advantage of the technology solutions being developed. 

Our comprehensive transformation strategy also includes designating the VA Regional Office in Providence, Rhode Island, to serve as our Business Transformation 

Lab. The Business Transformation Lab will serve as the focal point for convergence 

of process re-engineering and technology. This designation assures that VBA will optimize service delivery and then develop and deploy best practices throughout the 

organization. 

We recognize that technology is not the sole solution for our claims-processing 

concerns; however, it is the hallmark of a forward-looking organization. Our paperless strategy combines a business-focused transformation and re-engineering effort 

with enhanced technologies, to provide an overarching vision for improving service 

delivery to our Nation’s Veterans. 

DISABILITY EVALUATION SYSTEM (DES) PILOT

The Departments of Veterans Affairs and Defense continue to work collaboratively 

to enhance the transition of servicemembers to successful civilian lives. We work together through the Benefit Delivery at Discharge (BDD) and Quick Start programs 

for servicemembers separating or demobilizing from the active force, the joint DES 

pilot, and the development of the combat-related catastrophically disabled Expedited 

DES process. 

Since March 2007, the two Departments have engaged in unprecedented joint efforts to resolve concerns about the process through which servicemembers are released from active duty due to disability. Following detailed collaborative analysis, 

the two Departments deployed a revised DES process in November 2007 at the 

three Military Treatment Facilities (MTFs) in the National Capital Region. VA believes the revised pilot is a better process for servicemembers and our respective 

Departments. 

VA is involved at the earliest stages of the process by interviewing servicemembers and taking claims for both the potentially unfitting and other potentially 

qualifying disabilities. Examinations are conducted in accordance with established 

VA protocols for all potentially unfitting and claimed conditions. If the Military Department’s Physical Evaluation Board (PEB) determines the member to be unfit, VA 

prepares a single rating that is binding on both Departments. 

The revised pilot process has been faster and more transparent than the traditional process and has reduced appellate activity. Based on findings to date, the two 

Departments are expanding the pilot. The pilot is now the standard process at 21 

MTFs, accounting for almost 30 percent of all servicemembers going through the 

DES process. 

As of July 12, 2009, over 3,000 servicemembers enrolled in the pilot, and 560 servicemembers completed the process. The servicemembers who completed the process 

includes 179 retained by the Services, 230 retired, and 57 separated with severance 

pay. Separated and retired servicemembers are informed of entitlements from both 

Departments when they are notified of the PEB’s decision. 

CONCLUSION

VA’s goal is to transform to a 21st century organization that is Veteran-centric, 

results-driven, and forward-looking. We have initiated a plan to address this issue 

in a more aggressive fashion, which includes development of a paperless benefits delivery system that will integrate the latest technologies with redesigned business 

processes. We are examining automated decision-support programs to enhance 

decisionmaking and evidence gathering, as well as streamline the claims workflow. 

We look forward to working with Congress, the Department of Defense, and the Department of Homeland Security in the continuing transformation of the DES to 

meet the needs of 21st century Veterans and their families. 

7 

Mr. Chairman, this concludes my testimony. I will be happy to respond to any 

questions that you or other Members of the Committee have. 

Chairman AKAKA. Thank you very much. 

Mr. Koch, will you please proceed with your statement? 

Mr. KOCH. Good morning, Mr. Chairman. I submitted written 

testimony for the record. 

Chairman AKAKA. Thank you. It will be included. 

Mr. KOCH. Thank you. 

STATEMENT OF NOEL KOCH, DEPUTY UNDER SECRETARY, OFFICE OF TRANSITION POLICY AND CARE COORDINATION, 

U.S. DEPARTMENT OF DEFENSE 

Mr. KOCH. Mr. Chairman, distinguished Members of the Committee, this is my first appearance before you in my present capacity, and I am privileged to have the opportunity to be with you this 

morning. I am honored to share with you our profound responsibility for the future well-being of our wounded, ill, and injured 

servicemembers, veterans and their families. 

My position as Deputy Under Secretary for Transition Policy and 

Care Coordination was established in December 2008, and I am the 

first person to hold this position formally. As you know, it represents not only a priority of the Secretary of Defense, but of the 

President and the First Lady as well, so I am mindful of the potential cost of failing in this work that has been assigned to me. 

I am responsible for Lines of Action 1, 3, and 8; Disability Evaluation System Reform; case management and benefits—the latter 

including management and monitoring the DOD side of the Benefits Executive Council, which I co-chair with my colleague, Admiral 

Dunne. 

Immediately at issue before us today is the progress of the Disability Evaluation System Pilot, also called the DES Pilot. As you 

know, this was a spearhead of the effort to expedite—simply, 

smoothly and equitably the transition of our wounded, ill, and injured warriors to the next phase of their lives—from healing and 

rehabilitation back to active duty or to veterans status. This undertaking was prompted in the first instance by the events at Walter 

Reed Army Medical Center, but it had deeper antecedents in the 

experience of duplicative examination procedures, lost records, delayed medical care, and protracted efforts to provide to your 

servicemembers the attention they earned, deserved, and, in many 

cases, desperately needed to assist in recovering from the sacrifices 

they made on the battlefield. 

The DES Pilot is precedent to a more extensive effort to make 

permeable the barriers between DOD and the Department of Veterans Affairs through the DES evolution. I can report to you that 

the DES Pilot has exceeded its expectations as a learning process 

and as an expedient to serve those who have been engaged in it. 

As of the 12th of this month, some 2,500 servicemembers were 

enrolled in the pilot at 21 medical treatment facilities; 466 servicemembers completed the DES Pilot—returning to duty, separating 

from service, or retiring. The average time to completion of the 

DES Pilot has been 275 days—exceeding the goal set for the pilot 

and exceeding the legacy to DES by an estimated 46 percent. 

8 

The legacy DES, Mr. Chairman, would be one that you would 

have familiarity with from your experience in the Army. It goes 

back to the earliest days. The Republic was refined somewhat in 

1949 and has not improved since then. 

The people who have gone through this were active duty personnel. Reserve and National Guard members moved through the 

system to the receipt of their VA benefits letter 13 percent faster 

than the goal set for them in the terms of reference governing the 

DES Pilot, which was 305 days. Tracking of servicemembers satisfaction reflects the success indicated by these numbers. Among the 

practical efforts taken to assist the wounded, ill, and injured, has 

been the Recovery Coordination Program begun in November 2008. 

This covers servicemembers less severely wounded but who are not 

likely to return to active duty in less than 180 days. 

We are wrestling with a number of complex issues, ranging from 

the fit to the unfit equation, compensation for family caregivers, 

and TBI and PTSD screening. One among many of the issues we 

face in addressing these and other issues is the velocity with which 

medical science is accelerating the area of care for our wounded, ill 

and injured personnel. 

Injuries that once would have disqualified a servicemember from 

returning to active duty no longer do so. So, in the policy arena we 

find ourselves trying to keep up with miracles. The tendency in 

some areas is to sit tight and see where the miracles take us, between medical science and the incredible will of our servicemembers. Many of them want to go back to war. So this is what 

we are dealing with. It is very different than any conflict we have 

ever seen in the past. 

As you know, the DES Pilot is a test bed that will help us determine what future changes we can and may need to make in this 

endeavor through the modality of the DES evolution. The pilot program is operated within the context of existing policy and law. We 

may discover the need for changes in policy and may request that 

you consider changes in the law. 

I do not want to speculate on that today. We are required to report on the DES Pilot at the end of August, and at that point, we 

expect to have a sense of the future of the pilot itself as well as 

the course of the DES evolution. 

That concludes my oral statement, Mr. Chairman, and I look forward to any questions you may have. 

[The prepared statement of Mr. Koch follows:] 

PREPARED STATEMENT OF NOEL KOCH, DEPUTY UNDER SECRETARY, OFFICE OF

TRANSITION POLICY AND CARE COORDINATION, U.S. DEPARTMENT OF DEFENSE

OPENING

Mr. Chairman, Committee Members, I am pleased to be here today to discuss 

with you the Department’s continued support of our wounded, ill and injured servicemembers, veterans, and their families, and in particular, the continued work of 

the Office of Transition Policy and Care Coordination (TPCC) with regard to the 

Disability Evaluation System (DES) Pilot. 

TPCC BACKGROUND

On 14 November 2008, the Under Secretary of Defense for Personnel and Readiness established the Office of Transition Policy and Care Coordination (TPCC). As 

the Deputy Under Secretary for TPCC, it’s my mission to ensure equitable, consistent, high-quality care coordination and transition support for members of the 

9 

Armed Forces, including wounded warriors and their families by collaborating with 

Federal and State agencies. The TPCC assumed responsibility for policy and programs related to the DES, Servicemembers’ transition to veteran status, wounded 

warrior case and care coordination, and related wounded warrior pay and benefit 

issues. These assigned responsibilities include the totality of the Department of Defense (DOD) functions formerly assigned to DOD co-chairs of the interagency DOD 

and Veterans Affairs (VA) Wounded, Ill, and Injured (WII) Senior Oversight Committee (SOC) Lines of Action (LOAs) 1, 3, and 8. The TPCC also assumed DOD responsibilities for management and monitoring of performance against DOD/VA Benefits Executive Council (BEC) goals and for coordinating with VA in support of BEC 

activities. The TPCC has the authority to enter into agreements with VA and represent the Under Secretary of Defense for Personnel and Readiness (USD (P&R)) 

as a member on councils and interagency forums established under the authority 

of the DOD/VA Joint Executive Council (JEC), the BEC and the SOC. 

DISABILITY EVALUATION SYSTEM (LOA–1)

The mission of Disability Evaluation System (DES) Reform is to develop and establish a DOD and VA Disability Evaluation System that is seamless, transparent, 

and administered jointly by both Departments and uses one integrated disability 

rating system, streamlining the process for the Servicemember transitioning from 

DOD to VA. The system must remain flexible to evolve as trends in injuries and 

supporting medical documentation and treatment necessitates. The Department continues to make significant steps forward in regards to the DES Pilot to include periodic refinements to the process and expansion of the Pilot beyond the original three 

initial sites in the National Capitol Region. 

Overview 

Now, as in the past, the DOD remains committed to providing a comprehensive, 

equitable and timely medical and administrative processing system to evaluate our 

injured or ill Servicemembers’ fitness for continued service. One way we have honored these men and women, was to develop and establish a Disability Evaluation 

System (DES) Pilot that provides one solution for a DOD and VA Disability Evaluation System using one integrated disability rating system. This system has several 

key features: simplicity; non-adversarial processes; single-source medical exam and 

disability ratings (eliminating duplication and the inconsistencies associated with 

it); seamless transition to veteran status; and strong case management advocacy. 

The system is flexible to evolve as trends in injuries and supporting medical documentation and treatment necessitates. LOA–1 has continued to make significant 

progress in regards to the DES Pilot to include the Pilot’s initial expansion to an 

additional 18 locations across the Continental United States (CONUS). 

Pilot 

The DES Pilot integrates the DOD and VA disability systems to the extent allowed under current statute and includes several key features that distinguish it 

from the current DOD and VA disability systems. The key features of the Pilot include a single physical disability examination conducted according to VA examination protocols, with disability ratings defined by the VA and accepted by DOD for 

those conditions it must address under law—those that render the member unfit for 

military service. The Departments apply the shared results of the single disability 

examination and ratings to render their respective decisions (the fitness decision, 

disability level, separation disposition, and DOD disability benefits by DOD and disability level, Veteran disability benefits eligibility, and VA disability compensation 

level by VA). Another key feature of the Pilot is that the early involvement of the 

VA allows the Department to deliver disability compensation and benefits immediately upon transition to Veteran status for members of the Military Departments 

being separated for disability. 

Our efforts to improve the DES is co-directed by the Deputy Director for Policy 

Compensation and Pension (C&P) Service from the VA and me as the DOD representative. 

The vision for the DES Pilot is a Servicemember-centric, seamless and transparent disability evaluation system jointly administered and supported by the Departments. The Departments set the following objectives for the Pilot: 

• Design a more transparent, efficient, and effective DES 

• Evaluate reform initiatives 

• Refine reform mechanisms 

• Identify training requirements 

• Identify staffing and system support requirements 

• Identify legal and policy issues/constraints. 

10 

Current Operational Status 

As of July 12, 2009, 2,944 Servicemembers are currently enrolled in the DES Pilot 

at 21 MTFs. Four hundred sixty-six (466) Servicemembers completed the DES Pilot 

by returning to duty, separating, or retiring. Active Component Servicemembers 

who completed the DES Pilot averaged 275 days from Pilot entry to VA benefits decision, excluding pre-separation leave. Including pre-separation leave, Active Component Servicemembers completed the DES Pilot in an average of 294 days. This is 

1% faster than the goal for Active Component Servicemembers and 46% faster than 

the current or legacy DES and VA Claim process. Reserve Component/National 

Guard Servicemembers who completed the DES Pilot averaged 266 days from Pilot 

entry to issuance of the VA Benefits Letter, which is 13% faster than the 305-day 

goal. 

Customer Satisfaction 

On the whole, Pilot participants reported higher average satisfaction than legacy 

participants. Additionally, Pilot participants reported higher satisfaction for all 

MEB and the PEB. Notably, Servicemembers were significantly more satisfied with 

the procedural justice component of the PEB phase (i.e., they felt the PEB portion 

of the Pilot was fairer than did legacy DES participants). Finally, the Pilot participants were more satisfied than legacy DES participants on the Transition phase of 

the program. Family members of DES Pilot participants were most satisfied with 

medical providers and the medical care the Servicemember received in the DES 

Pilot process. Stakeholder (perceptions of the impact of the Pilot on Servicemembers 

and Veterans were favorable; their ratings reflected a DES Pilot process that was 

more responsive to Servicemembers and their families, fairer, more consistent, and 

timelier compared to the current DES program. Perhaps most importantly, stakeholders felt that people within their organization cared about the Servicemembers 

in the DES Pilot program. These results speak to the dedicated efforts of Physical 

Evaluation Board Liaison Officers, Military Service Coordinators, care providers, 

and others who are remaining responsive to the needs of their customers given the 

limited level of resources they have available. The VA is preparing to administer 

surveys to determine satisfaction with the pilot one year after separation. We look 

forward to that information in spring 2010. 

Expansion 

The Departments carefully planned for and expanded the DES Pilot beyond the 

initial three, National Capital Region locations, to 18 additional locations throughout the continental United States. In accordance with recommendations by the U.S. 

Government Accountability Office, this deliberate approach allowed the Departments to gather data on the effectiveness of the Pilot at a diverse set of locations. 

Expansion to these locations began October 1, 2008 and was completed May 31, 

2009. The SOC is scheduled to meet in August, 2009, to evaluate future expansion 

opportunities. 

Should the SOC decide to further expand the Pilot into the norm, significant DOD 

and VA planning and preparation will be essential to efficient and effective implementation. 

Initial Conclusions of the Pilot 

The Departments successfully implemented a more transparent, efficient, and effective disability evaluation system through the DES Pilot. The Pilot resulted in a 

significant improvement in case timeliness with perhaps the most important enhancement being the elimination of delays between separation or retirement and 

the award of VA disability benefits. Servicemembers were more satisfied with the 

process and the outcomes were improved over the legacy system. 

Based on the proven performance of the Pilot, the Departments are evaluating effective ways to extend the advantages of the Pilot to all Servicemembers in the 

DES. Additionally, the Departments are reviewing the Joint DOD/VA DES process 

as a bridge to further DES reform. 

CLOSING

We are extremely proud of the progress made to date and the success enjoyed in 

the Pilot. Our obligation to our Servicemembers, veterans, and their families is a 

lifetime pledge which requires our unwavering commitment to complete the work 

which has been started. There remains more work to do. Our valiant heroes and 

their families deserve our support and dedication to ensure their successful transition through recovery, rehabilitation, and return to duty or reintegration into their 

communities. 

11 

With those thoughts in mind, the Departments successfully implemented a more 

transparent, efficient, and effective disability evaluation system through the DES 

Pilot. The Pilot resulted in a significant improvement in case timeliness with perhaps the most important enhancement being the elimination of delays between separation or retirement and the award of VA disability benefits. 

Based on the proven performance of the Pilot, the Departments are evaluating effective ways to extend the advantages of the Pilot to all Servicemembers, Veterans, 

and their families in the DES. 

Thank you for your generous support of our wounded, ill and injured servicemembers, veterans and their families. I look forward to your questions. 

Chairman AKAKA. Admiral Dunne, a popular statistic going 

around is that the claims backlog is nearing 1 million. That is 1 

million claims yet to be fully resolved. 

Is that figure an accurate indicator of DBA’s claims inventory? 

If it is not, where is that number coming from? 

Admiral DUNNE. Mr. Chairman, I would say that the calculation 

of that large number is based on taking a look at all the work that 

our regional offices are involved with. The number of 406,000 for 

compensation and pension claims inventory, which I referred to 

earlier, is the number of active claims that we are working on for 

veterans who are waiting for some compensation or pension from 

us. 

If we take a look at a larger number by adding up some of the 

other categories—everything from making adjustments for hospitalization of a veteran, incarceration of a veteran, doing changes 

of address, et cetera—we track all of those as workload elements 

at which they must also be accomplished, but they are not directly 

related to a decision on a veteran getting compensation or pension, 

sir. 

Chairman AKAKA. This question is for you, Admiral Dunne and 

also for Mr. Koch on the Disability Evaluation System. 

How are the departments working to make certain that the Disability Evaluation System Pilot Program is being implemented in 

the same way at participating sites? 

Admiral DUNNE. Sir, in order to maintain the consistency that 

we need and to ensure that the military treatment facilities have 

the capabilities that they need to serve our servicemembers—future veterans—first, we conducted a very extensive evaluation of 

what was needed in the National Capitol Region when we started 

in November 2007—what capabilities we needed both on the VA 

side and on the DOD side. 

We use that as lessons learned in order to conduct training for 

each of the individual military treatment facilities and VA offices 

who would be involved at the now 21 sites. So, all of those individuals involved received training, having the benefit of what we 

learned at the first three sites. And we have continued to follow 

through on that as we expand it on to the 21, sir. 

Chairman AKAKA. Mr. Koch? 

Mr. KOCH. Yes, sir. Mr. Chairman, I do not have a great deal to 

add to what Admiral Dunne has said. We are constantly monitoring the progress of these efforts at all 21 sites and adding to the 

inventory of trained personnel to assist with the care of our 

servicemembers. 

So, to some extent, it is a constant becoming; it is a work in 

progress. And some of the things that we had started out to do, 

12 

similar to the Army with its AW2 program, it has evolved as it has 

gone along. We have built on what we have learned there with our 

Recovery Care Coordinators; and, of course, on the other side with 

the Veterans Affairs, there are the Federal Recovery Coordinators 

that do this work as well. 

But there are a range of issues that we have got to continue to 

attack, and we are doing that within the evaluation of the pilot as 

well as within the working group, which I chair as well for the 

DES evolution. 

Chairman AKAKA. Admiral and Mr. Koch, how can VA and DOD 

do a better job at screening servicemembers so that those who enroll will actually complete DES and make wiser use of resources? 

Mr. Koch? 

Mr. KOCH. Yes, sir. The process begins at the intake of the 

wounded, ill, or injured warrior. We look at, of course, the nature 

of the wounds that may be considered catastrophic. These would be 

people that we do not expect to be able to go back to active duty, 

and they are going to have to change their expectations for their 

future. And we have to try to manage those expectations so that 

we do the best we possibly can for them. 

There is a process set up for them to proceed through the system 

from the point of intake through the healing process—rehabilitation—and to reach a point at which a determination will be made 

on our side—on the DOD side—whether they are fit or unfit for 

duty. 

Now, that sounds like a very cut and dry determination. In fact, 

it is not because, as I said in my oral testimony, many of these people who have suffered wounds that would have been completely 

disabling in the past are going through some marvelous procedures 

of recovery. Now if they want to stay in, the chances of us being 

able to retain them are greater than they ever were in the past. 

So, through this process, which we are evolving, we think that 

it is going to be what it is set out to be, which is smooth, simple, 

equitable and optimal. Again, we constantly monitor this to assure 

that we meet the standards that we have set for ourselves. 

Chairman AKAKA. Do you have any comment on that, Admiral? 

Admiral DUNNE. Yes, Mr. Chairman. On the VA side, as we perform the medical evaluations that we do, working with DOD, there 

is close monitoring of the results of that, of course. I believe as we 

look at it through the Senior Oversight Committee, which includes 

taking a look at the data of servicemembers who are not eventually 

separated or retired, that that is good feedback for the services to 

evaluate and evolve their program, as we are working on right 

now, sir. 

Chairman AKAKA. Thank you. 

Senator Johanns, your questions? 

Senator JOHANNS. Thank you, Mr. Chairman. 

Admiral, I think I will start this question with you, but I would 

encourage the other members of the panel to jump in here. 

One of the things we did when I was a mayor—and I was very 

active in the U.S. Conference of Mayors—is we established a best 

practices sort of system. We would always joke with each other 

that we were not looking for original ideas, we were looking for 

ideas that worked that we could bring back home and implement. 

13 

Does the VA in its disabilities process have anything like that? 

And I will tell you what I have in mind. I was looking at the statistics for the Lincoln office, and they are just simply better than the 

national average. Now, there might be a dozen reasons for that. 

But is there anything out there where you look at what is happening across the country and say to yourself, I wonder why those 

12 offices are doing so much better than the average, and actually 

try to take those models and implement them? Talk to me about 

that. 

Admiral DUNNE. Yes, sir. We are looking for all sorts of good 

ideas. I think I will start by setting the example myself. That is, 

over the past 16 months I have visited over 30 of our regional offices, including the Lincoln office, to be able to talk firsthand to the 

employees who are actually doing the work to learn directly from 

them what their challenges are, what issues they have that could 

either make them more effective, or a best practice that perhaps 

they are using locally that we could share with the other 56 offices 

and implement that. 

We have a program where twice a year, we get all the Regional 

Office Directors together. In fact, we will be doing that at the end 

of August. One of the segments of that meeting is all about best 

practices and where? As a result of our periodic reviews and inspections, we become aware of something that one office is doing, 

whether that be through training or otherwise. We share those 

with all the directors and provide them enough information to be 

able to take back and apply them at their office if they see that 

they could benefit from them. 

That is one example, but we are continually looking to the ROs 

by communicating with them periodically at all levels in order to 

take advantage of those ideas. In addition to that, by publishing 

our results office by office, we allow the different offices to be 

aware of who is performing better and they talk amongst themselves to figure out why some are better. But we do try to oversee 

that process and keep track of it. 

Senator JOHANNS. Anyone else have any thoughts on that? 

Mr. KOCH. Senator, you have talked about looking for good ideas. 

One of the first good ideas we had and implemented was building 

a collegial relationship between our two departments—the DOD 

and the Department of Veterans Affairs. That has been very productive and we continue to share our efforts, share information, 

and build on each other’s learning process. 

So, as Admiral Dunne indicated, there is almost no substitute for 

visiting these centers. These polytrauma centers and other hospitals that we have are quite remarkable, and at each point, we 

learn something that we can bring back. We learn, as you might 

imagine, more from being in the field than we do from sitting here 

in Washington. So, that is a process that is ongoing and very 

valuable. 

There is, as you suggest, it seems to me, some unevenness in 

various centers that we are involved in. I think you can trace this 

to efforts to break the mold and to do things that we have never 

done before. In the Great Lakes, for example, in northern Chicago, 

we are not satisfied with the progress that we are making there, 

14 

but what we are trying to do is unique and it is extremely difficult 

to do. 

In many cases, these problems are found to be rooted in the effort of information sharing in the sense of information technology. 

Building these systems to work across disparate systems is not 

easy to do. And the less people seem to know about the information 

technology business, the more ambitious they seem to be about the 

terms of reference that they levy on us. 

We began, for example, with creating a system for sharing medical information, which is a very good idea, but then you add to 

that, to the same system, personnel records and benefits records, 

and you have increased the problems exponentially. So that gets us 

in a little bit of a different area, but it is an example of some of 

the kinds of problems we have. 

So, it is a constant learning and it is a constant process of sharing what we learn. I think we are doing a pretty good job of it. 

Senator JOHANNS. I am out of time, Mr. Chairman, but if I might 

offer one other suggestion. Regarding best practices—because I did 

a lot of things, as a Governor, as a mayor, that, quite honestly, 

somebody else had thought of, which looked so good that we implemented it, and it really turned out well for us. 

The second thing I wanted to ask, though I am not going to ask 

you to answer it here, but maybe with a follow-up letter to the 

Chairman with copies to us. As we have tried to improve this, I 

worry at times that maybe we have done things that have only 

made it worse. So, I am going to turn the tables here. 

Is there anything out there that has happened in terms of our 

effort to solve this problem that you would like us to revisit? I have 

one thing in mind: the AMC, the Appeals Management Center. We 

hear from veterans that it can be a black hole; things go in there 

and disappear. Maybe that is an individual case, maybe it is not. 

But that is only an example. 

I would ask you to give some thought to this idea, that maybe 

in our effort to improve things, we have actually created another 

level of bureaucracy that is making it difficult for the veteran to 

overcome. I would like to hear from you on that. Please do not be 

shy. We have broad shoulders in this business. 

Thank you, Mr. Chairman. 

Chairman AKAKA. Thank you very much, Senator Johanns. 

Let me call on Senator Murray. 

Senator MURRAY. I am happy to wait for the other Members. 

Chairman AKAKA. Fine. 

Senator Tester? 

Senator TESTER. That is very kind. Thank you very much, Mr. 

Chairman. 

Admiral Dunne, you stated that you have 406,000 pending. What 

is that level compared to a year ago? 

Admiral DUNNE. About 25,000 or 30,000 more than a year ago, 

sir. 

Senator TESTER. OK. And the ratings claims are 80,000 each 

month? What is that compared to a year ago? 

Admiral DUNNE. About 5,000 a month more, sir. 

Senator TESTER. Five thousand more? 

15 

You stated in your testimony that you have 125 days as your 

goal, but you have got 145,000—and this may be wrong because I 

was taking notes—145,000 claims over 125 days? 

Is that correct? 

Admiral DUNNE. Correct. Yes, sir. 

Senator TESTER. Are those also fluid? You said the 406,000 were 

fluid. 

Admiral DUNNE. Oh, yes, sir. 

Senator TESTER. Is 145,000—— 

Admiral DUNNE. The 145,000 is part of the 406,000, so it is a 

subset. We are trying to move those through as fast as we can. 

Senator TESTER. All right. So is it a fair question to ask, of those 

145,000, how long do they go past the 125 days? I mean, are we 

talking—— 

Admiral DUNNE. As short a time—— 

Senator TESTER [continued]. One hundred eighty days, or 240? 

Admiral DUNNE. Well, that is an average number, sir. And what 

we do, based on the computer, is we take all the claims and we 

keep track of how many days they have been there. 

Senator TESTER. I guess the question is, is there a point and time 

on a claim, when it gets to a certain number of days, that you guys 

say, we fix this; we fix it now? 

Admiral DUNNE. Yes, sir. We have a team—— 

Senator TESTER. And what is that day? 

Admiral DUNNE [continuing]. The Tiger team. When it gets to be 

a year old, it goes to a Tiger team that works specifically on it to 

try to find what issue is slowing it down. 

Senator TESTER. And how many of those claims get to 365 days? 

Admiral DUNNE. At the present time, there is on the order of 

11,000, sir. 

Senator TESTER. OK. The chairman asked a question about 1 

million claims, and you said that is all the work that is being done, 

and you listed changes of address and some other things. 

Do you guys track that backlog of that additional 600,000? 

Admiral DUNNE. We track all of them, sir. Everything that comes 

in that is a work item is given an end product and we track it all. 

Senator TESTER. All right. 

If there is a change of address and we do not discover it for a 

while, it makes the ability to service that veteran a lot more difficult. That is just one example. 

So, you have got approximately 600,000 out there that you are 

doing various, much more minor things on, is how I interpret that. 

Do you track that—— 

Admiral DUNNE. Yes, sir, we do. 

Senator TESTER [continuing]. To see what the backlog is on 

those? I mean, what is your goal on those? 

Admiral DUNNE. There are about 219,000 items in the inventory 

right now, sir, and we complete those on average, in about 88 days. 

Some of them we were able to complete the day they come in; others take longer. 

Senator TESTER. OK. Sounds good. So the million figure that the 

Chairman brought up is not accurate. Because if my figures add 

up, you have about 625,000 total work that you have been doing, 

219 and 406. 

16 

Admiral DUNNE. Sir, we have to include appeals in there as part 

of the workload also, which the RO has to use some of their personnel for. 

Senator TESTER. OK. I assume that there are timelines for the 

appeals process, too. 

Admiral DUNNE. Yes, sir. We established those. 

Senator TESTER. Can you tell me what those are off the top of 

your head? 

Admiral DUNNE. I would have to get those for you specifically in 

terms of targets. 

Senator TESTER. That would be great. 

Do you have the needed employees you have now to reduce the 

backlog? Because it has been growing. 

Admiral DUNNE. Sir, there is a difficult balance that has to be 

struck between simply adding more people to the process, which 

then creates also additional administrative responsibilities. I am 

not sure exactly where that perfect balance is. 

Senator TESTER. I appreciate the position you are in because the 

claim rates are going up 5,000 a month from what it was last year, 

and the pending claims have gone up based on your answer to the 

question. 

The question is, does VA have a plan to reduce that backlog? 

Admiral DUNNE. Absolutely. 

Senator TESTER. Whether it is employees or technology or whatever, when will that plan be implemented so that we can start to 

see that backlog go down? 

Admiral DUNNE. Sir, we are working on several issues right now, 

both technology-wise and training of personnel, which will have effects over time. How fast, it is very difficult to say that a certain 

action that we take will result in X number of days or X number 

of claims being affected because each claim is truly unique. 

Senator TESTER. I understand. 

Admiral DUNNE. We have a technology plan, which I am working 

with the Chief Information Officer and the Chief Technology Officer to put in place on top of our business process—the reevaluation—which is going on now. We have the pilot going on in Little 

Rock and a pilot going on in Providence that are directly looking 

at the process that we go through, how we handle things, in trying 

to improve that, sir. 

Senator TESTER. I understand. I understand the position you are 

in, and I have some empathy for it. But I also have some empathy 

for the veteran out there who is in that backlog group. 

My time has also run out. But I would just say we have not hit 

break even yet. We are still going the wrong direction. That somewhat distresses me. I know that the pressures have been greater 

because of Afghanistan and Iraq and others, but the truth is we 

have to get to a point where we start reducing the backlog, and we 

are not there yet, and that is somewhat distressing. 

Thank you, Mr. Chairman. 

Chairman AKAKA. Thank you, Senator Tester. 

Let me call on our Ranking Member, Senator Burr, for any opening remarks and questions. 

17 

STATEMENT OF HON. RICHARD BURR, RANKING MEMBER, 

U.S. SENATOR FROM NORTH CAROLINA 

Senator BURR. Mr. Chairman, thank you for recognizing me. 

Admiral, I apologize for my tardiness this morning. I would ask 

unanimous consent that my opening statement be a part of the 

record, and I will be happy to fall in the back of the line to ask 

questions after every other Member has completed the first round. 

Chairman AKAKA. Without objection, it will be added to the 

record. 

[The prepared statement of Senator Burr follows:] 

PREPARED STATEMENT OF HON. RICHARD BURR, RANKING MEMBER, 

U.S. SENATOR FROM NORTH CAROLINA

Thank you, Mr. Chairman. Welcome to you and to our witnesses. I appreciate you 

calling this hearing to discuss ideas on how to improve the Disability Evaluation 

System for our Nation’s veterans. For the men and women who have served and 

sacrificed for our Nation, they deserve a system that meets their needs without hassles or delays. 

To truly live up to that goal, experts have stressed for more than five decades that 

we need to update and streamline the disability system. But, decades later, many 

wounded warriors still face a lengthy, bureaucratic process to find out whether they 

will be medically discharged from service and what benefits the military will provide. Then, these injured veterans may go through a long, complicated process to 

find out what VA benefits they will receive. 

We will hear today about the steps that have been taken to try to improve this 

situation, such as the joint VA/DOD pilot program for transitioning servicemembers 

and ongoing efforts to modernize information technology systems. Also, there have 

been large staffing increases at VA, with field staff more than doubling in less than 

10 years. 

Despite those efforts, I think it’s clear that simply adding more staff and making 

minor changes hasn’t fixed the problems. The claims process, as a whole, still takes 

far too long for many veterans, in North Carolina and across the country. 

It takes more than five months on average for VA to make an initial decision on 

a claim for veterans’ benefits and, if the veteran decides to appeal, the delays can 

go on for years. In fact, Professor Allen noted in a recent article that the average 

time from when a veteran files a claim with VA until getting a decision by the Court 

of Appeals for Veterans Claims is between five and seven years! 

I think a process that takes that long is indefensible. Our veterans and their families deserve better. 

That’s why, at a hearing earlier this year, I asked our witnesses to take a clean 

piece of paper and redesign the entire disability process, as if we were standing up 

a new system today. In response, the Committee received some very constructive 

recommendations, and I thank everyone involved in crafting those responses. 

Today, we will hear from the Disabled American Veterans about the proposal they 

developed in response to my request. That proposal includes recommendations for 

technological improvements, compressing timeframes throughout the claims process, 

eliminating unnecessary procedural steps, and helping avoid time-consuming 

remands. 

I applaud DAV for these constructive proposals. I think these types of changes 

could go a long way toward streamlining the claims process and, more importantly, 

toward reducing the delays and frustrations our Nation’s veterans and their families 

now face. That’s why I am pleased to be working with DAV to draft a bill that would 

help make those changes a reality. 

Mr. Chairman, I hope my bill will be a good step in the right direction. I look 

forward to working with you to advance that legislation and other changes that can 

help get decisions to veterans faster. This system has been plagued with problems 

for far too long. So, I hope this Committee will move aggressively to make the system work better for veterans, now and in the future. 

I thank the Chair. 

Chairman AKAKA. Senator Begich? 

18 

STATEMENT OF HON. MARK BEGICH, 

U.S. SENATOR FROM ALASKA 

Senator BEGICH. Thank you very much, Mr. Chairman. 

Thank you all for being here. I believe this is your second or so 

hearing regarding the DES. I’d like to follow up on two questions, 

one each by Senator Johanns and Senator Tester. 

First, on the best practices, to be honest with you, I was not satisfied with your answer, and here is why. When you mentioned the 

best practices you said—I am going to try to paraphrase your comments, and that is—that you had the groups kind of talk about it. 

What I learned as mayor is when there are best practices, and 

you have multiple agencies with different practices, one may not 

acknowledge that the other one has a best practice. To let them 

just discuss it does not work. 

How do you pull the trigger to make sure that when you see 

something that is successful—I do not know enough about Nebraska’s example in Lincoln, but let’s assume that has best practices 

there. How do you say to the rest of them this is working; we are 

doing it this way. Because the way you made it sound, honestly, 

I was not satisfied with that. When you leave it to the agencies or 

the different organizations, no one believes they have bad practices. 

Admiral DUNNE. Senator, I will give you an example. One of the 

things that I learned from traveling around to the offices is that 

at the present time people that are working claims have to send 

letters to veterans. They have to print those letters out on printers. 

They share printers. They have to walk around the room to get it. 

They also have to sort through the outbox to figure out which product from the printer is theirs and which belongs to another VSR. 

I directed that we start funding that so that we can get a printer 

on everybody’s desk, and they can all print their own correspondence and handle it themselves; save time and save confusion. So, 

we are going to go do that. That is one example, sir. 

Senator BEGICH. Let me ask you, also, in regards to that—I 

think Senator Tester asked a question of the claims. I think you 

said around 11,000 at some point have gotten to a year. 

Maybe I am wrong about this, but is the goal 125 days? Is that 

right? 

Admiral DUNNE. The strategic target is to complete all claims on 

an average of within 125 days, sir. If we can do them sooner than 

that, we will do them sooner than that. 

Senator BEGICH. How did you select a year, which is almost 

three times what the target is? In other words, it seems significantly long when you think about it. If your target is 125 days but 

you are waiting a year to intervene on those kind of—I do not know 

if the right phrase is complicated claims—but claims that are not 

resolved, it is three times what your average is before you kind of 

step in and say we got to deal with this. 

How did you come up with three times? 

Admiral DUNNE. Senator I did not mean to imply that we did not 

take a look at a claim until it got to be over a year, but when it 

did—each of the regional offices has their own monitoring system. 

They are able to monitor, through the computer, the age of all their 

claims and they work them. But if they get to that point of a year, 

then that is when we turn them over to a Tiger team. 

19 

Admiral DUNNE. You had mentioned around 4,000 or so new employees that were added. 

Is that net after attrition and other exits? 

Admiral DUNNE. A net of 4,200 new employees since January 

2007, sir. 

Senator BEGICH. What do you need to get to the level to—I think 

to follow up again with Senator Tester—get ahead of the game? 

How many more employees? 

Admiral DUNNE. Again, ahead of the game, sir. I would say at 

this point, having evaluated it for 16 months, we need to implement the IT portion of this because the significant savings that we 

need to move things around, we need a digital capability to do it. 

I will give you an example of a claim. 

When a claim comes in and it is processed, then there is a need 

to go back and communicate with the veteran, and send that veteran a letter and say this is what you have claimed, this is what 

we need, additional evidence, et cetera, and give that veteran 30 

days to respond. If the veteran sends additional information in, 

then that comes in to the mailroom, and someone has to take it 

and move that piece of paper to wherever that claim file might be. 

That takes time; it takes people. 

If we have a digital capability, when that new piece of evidence 

is scanned in, it can be scanned in with the bar code and immediately go to the electronic claim file, which would then trigger a 

management item that would tell someone there is new evidence 

in this claim folder; you can act on it now. 

Senator BEGICH. Let me ask you—and I am just about out of 

time here. First, regarding personnel that you believe you may or 

may not need, do you have the necessary resources to hire those 

personnel? And the second piece is on the digital component. Do 

you have enough resources to implement what you want to do with 

regards to digital resources? 

Admiral DUNNE. Sir, I would say that we have the correct people. 

At this point, we have the correct funding. And I believe that the 

budget requests the additional resources that we need. 

Senator BEGICH. Great. Then, I guess, last question. 

When you set on this course, did you develop a strategic plan— 

I am assuming you did—that lays out kind of your target dates and 

goals, how you will achieve where you want to be, and how do you 

keep track of that? Do you have such a document? 

Admiral DUNNE. Sir, I am in the process of creating such a 

timeline with the Chief Information Officer and the Chief Technology Officer. 

Senator BEGICH. Can you share that with us when you—— 

Admiral DUNNE. Absolutely. 

Senator BEGICH. Great. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman AKAKA. Thank you very much, Senator Begich. 

We will next hear from Senator Murray—her opening statement 

and questions. We will be continuing with the questions. 

Unfortunately, my presence is required at the markup of another 

committee. In my absence, Senator Murray will be chairing this 

hearing to conclusion. She is, you know, an active Member of this 

20 

Committee, and I know that she cares deeply about the issue that 

we are discussing. 

So now, I would like to turn the gavel over to Senator Murray. 

STATEMENT OF HON. PATTY MURRAY, 

U.S. SENATOR FROM WASHINGTON 

Senator MURRAY [presiding]. Mr. Chairman, thank you very 

much. I will submit my opening statement for the record. 

[The prepared statement of Senator Murray follows:] 

PREPARED STATEMENT OF HON. PATTY MURRAY, U.S. SENATOR FROM WASHINGTON

Chairman Akaka, Senator Burr, thank you very much for holding today’s hearing 

to discuss VA’s disability claims and appeals process. 

Improvements Made by VA and Congress 

Over the last several years, this Committee has held a number of hearings to explore ways we can improve the timeliness and quality of our disability compensation 

system. Congress has provided funding to increase staffing at the Veterans Benefits 

Administration, promote specialized training, and urged the adoption of information 

technology solutions. 

In response, VA has redistributed workloads, begun to shift to a paperless environment; and implemented pilots to test new innovative methods for improving the 

claims process. 

Those efforts have yielded some results. Over the last 10 years, VA has increased 

the number of claims it has processed by 60 percent. It has also reduced the average 

time to complete a rating claim from 178.9 days in Fiscal year 2008 to 161.3 days 

at the end of June 2009. 

More Work Remains 

Yet, despite all of the progress and all of the hard work being done, far too many 

veterans continue to wait far too long to have their claim reviewed. 

Part of this, as we all know, has to do with the massive increase in claims being 

filed; part of it has to do with the increasing complexity of those claims; and part 

of it has to do with legislation and regulations that we have used to expand VA benefits. 

Importance of Fairly and Quickly Compensating Wounds of War 

It goes without saying that this country owes a debt of gratitude to the men and 

women who have sacrificed to defend our freedoms. 

But we owe our veterans more than gratitude. As the Veterans Disability Benefits 

Commission wrote in its report, ‘‘just as citizens have a duty to serve in the military, the Federal Government has a duty to preserve the well-being and dignity of 

disabled veterans by facilitating their rehabilitation and reintegration into civilian 

life.’’ 

By providing services and benefits to veterans in a timely and sufficient way, not 

only do we express the gratitude of grateful nation to our wounded warriors, but 

we also help smooth their transition back into civilian life. 

Problems with Current System 

Yet, too often when I speak with veterans, I am frequently reminded that the VA 

is often seen as a veteran’s adversary, not a veterans advocate.Between lost or destroyed records, unruly and unorganized files, and an incentive system that many 

VBA employees perceive to value the quantity of claims processed more than the 

quality of those claims, Veterans often perceive the deck to be stacked against them. 

General Omar Bradley once famously said, ‘‘We are dealing with veterans, not 

procedures—with their problems, not ours.’’ 

As we move forward with the modernization and improvement of the veteran’s 

compensation system, we need to keep that sentiment in mind. 

Thank you Mr. Chairman. 

Senator MURRAY. Let me just summarize it by saying that we 

have provided a lot of funding and promoted specialized training 

and passed legislation, and I know that there is a lot of increasing 

complexity with veterans’ filings and that we are facing an inVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
21 

creased number of veterans. But I have to say I am still—because 

I talk to veterans—really worried. 

I am frequently reminded that a lot of veterans see the VA as 

their adversary, not as an advocate: lost paperwork, misorganized 

files, an incentive system that many VBA employees perceive to 

value the quantity of claims processed more than the quality of 

those claims. So we still have a lot of work to do, because I think 

the veterans often see that when they go to file a claim, the deck 

is stacked against them, and we have got to keep working on this. 

So with that in mind, I wanted to ask some questions of you this 

morning, Admiral Dunne and Mr. Koch. 

In GAO’s September 2008 report on the VA/DOD Disability Evaluation System Pilot, GAO reported that your two agencies had not 

established criteria for determining whether the pilot should be 

deemed a success and expanded to the rest of the system. 

Now, I understand that you are going to be issuing your final report to Congress in August, which is coming up very quickly, but 

can you tell the Committee, both of you, whether or not you have 

developed strong criteria to measure the success of this pilot and 

determined the feasibility of expanding this? 

Admiral DUNNE. Senator, I think the best criteria that we have 

established so far is feedback from the servicemembers themselves 

and the veterans, which will be reflected in the report that we are 

providing. We are going straight to the veterans and the family 

members and asking them how satisfied they are with the process, 

with the different stages of the process, to determine whether what 

we think is progress is actually seen by them as progress, and 

learn from that, so that we can adjust the DES Pilot as necessary. 

Senator MURRAY. From your perspective, what is the important 

criteria to determine whether this is doing well or not? 

Admiral DUNNE. Whether or not the servicemembers feel that 

they are being treated fairly, that they are getting consistent results, and that it is being done in the minimum amount of time, 

with recognition that they need time for medical healing and to 

adapt to the fact that their military career has been cut short. 

Senator MURRAY. Mr. Koch, do you have anything to add? 

Mr. KOCH. Yes. I would add that one of the things we discovered—first of all, as Admiral Dunne indicated, we have extensive 

survey efforts to find out what the servicemembers feel about the 

way they are being treated. One of the things we discovered as we 

progress through this is that the earliest generations of veterans 

and their families—in particular, talking to the wives who have to 

deal with injured servicemembers—that the earlier group has a 

higher level of dissatisfaction than more recent participants in the 

process. 

So, what it is telling us is that we are getting better at what we 

do, but we still have to go back and recapture those earlier people 

who have gone through this at a point when we were just learning 

how to do better what we were doing. 

Senator MURRAY. How much money is the VA putting in and 

how much is DOD putting in to this pilot? 

Mr. KOCH. Oh, into the pilot? 

Senator MURRAY. Into the pilot. 

22 

Admiral DUNNE. Senator, I would have to get the exact figures 

for you, but our approach has been that we do what is necessary. 

I do not mean to say we have been cavalier about the funding of 

it, but we have just gone off and determined what has to be done, 

which the Secretary has directed us to go do it. 

Senator MURRAY. OK. If you could get that answer back to me, 

I would appreciate that. 

If you do decide that this pilot should be expanded, how are you 

going to roll it out consistently? 

Admiral DUNNE. Senator, the next step will be that the Senior 

Oversight Committee is going to meet near the end of August and 

will evaluate the report preliminary to providing it to Congress. 

Should they accept the report and be satisfied with the results or 

provide guidance to make some changes, those will be implemented 

directly with each of the military treatment facilities before implementation. 

We have cued up right now a list of seven MTFs which we plan 

to recommend to the Senior Oversight Committee that we include 

them within the pilot. We have already conducted training for 

those organizations. If we get additional guidance from the Senior 

Oversight Committee, we would conduct that training with those 

MTFs before we implemented it. 

Senator MURRAY. OK. Will you share that information with us 

as you move forward on it? 

Admiral DUNNE. Absolutely, Senator. 

Senator MURRAY. OK. Let me change direction a little bit. 

Earlier this month, the director of the VA’s Center for Women 

Veterans came before this Committee and testified that her office 

was planning on working with DOD and VA, through the White 

House Interagency Council on Women and Girls, to make sure that 

the combat experience of female servicemembers and veterans is 

properly documented in their DD–214s. 

This is extremely important. I am hearing from a lot of women 

who have been in Iraq, some in Afghanistan, who have come home 

and do not have the proper documentation saying that they were 

in combat areas. I wondered if either of you are aware of that effort, and can you give us any progress on that so these women get 

their proper service credentials when they come home. 

Admiral DUNNE. Senator, I am aware of the fact that we are 

working with DOD, two parts of it, to get the DD–214 transferred 

to us electronically so that will also speed up the process of us adjudicating claims; and to make sure that DOD has all the requirements that we need from that DD–214 document so that they can 

be incorporated into this electronic exchange of information. 

Senator MURRAY. OK. The problem begins in DOD where 

women—particularly, but also some men who are in combat—experience their records being notoriously incomplete or vague. It particularly impacts women, where people are not so excited about 

writing something in their DD–214. 

So, Mr. Koch, are you aware of this problem and can give us any 

input? 

Mr. KOCH. I am aware of it, Senator, and we are finding that 

this, again, is a learning process. The sort of war that we are inVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
23 

volved in is requiring us to think in new ways about how we handle this. I mean, it is just not cut and dried and anymore. 

I do not mean to be craven about it; I am not making excuses 

about it, but what we are trying to get our arms around are the 

multiple deployments, people who are trying to catch up with their 

records; we are trying to catch up with their records. And we do, 

but there are backlogs. In some cases, we do not know that we 

have missed something until a servicemember calls it to our attention, and that may take some time. So it is something that the Department is concerned about and is trying to address as quickly as 

we can. 

Senator MURRAY. Well, I am going to continue to push everybody 

on this because when somebody goes over and serves our country 

and then—simply because somebody does not write something on 

a form—comes home and is denied their care, to me is just really 

unjust. This is something I care a lot about, and I will continue to 

push all of you on this. 

Admiral Dunne, let me ask you. GAO’s testimony notes that the 

VA is expecting an increase in claims as the result of an October 

2008 regulation change that affects the VA rating for TBI, for 

Traumatic Brain Injury. Given the complexity of rating TBI claims, 

what is the VA doing now to prepare its staff with this expected 

increase in TBI claims? 

Admiral DUNNE. Senator, the regulation that was put in place 

last October was the most up-to-date, best information— medical 

evaluation—that we could obtain as a result of meeting with many 

experts, both on the DOD side and on the VA side. 

Our anticipation is that we will get additional claims, but our 

claims processors—the folks who actually do the rating—received 

training on the new regulation and how to apply it. And we think 

as a result of the work that Mr. Pamperin and his folks did, that 

the rating schedule in that area is much easier to understand and 

easier for the medical folks to provide the information that we need 

to put into the schedule. 

Senator MURRAY. OK. 

Mr. PAMPERIN. Ma’am, in addition to that, part of that projection 

of increased workload is an outreach effort that we have made for 

the people who are already service-connected for TBI, advising 

them of the change in the schedule and encourage them to come 

in if they feel that they have more than subjective symptoms. We 

have done extensive training on TBI. We have issued training letters on that, and I believe that we are ready. 

Senator MURRAY. OK. Well, this is something, too, that this Committee, as you know, has followed very closely, especially on knowing that a lot of men and women have come home and are sitting 

somewhere in their community with symptoms, and have no idea 

that it is Traumatic Brain Injury. We have had a lot of resources 

put into this, so we want to make sure those folks on the ground 

out there are trained and adequately following these new procedures. So we will be following this closely, and I appreciate that. 

Senator Burr? 

Senator BURR. Thank you, Madam Chairman. 

24 

Admiral, again, welcome. Thank you, and I thank your colleagues for your service to our country’s veterans. I really appreciate it. 

Admiral, in the stimulus package, we provided $150 million, and 

the purpose of it was to hire the individuals to create a surge in 

the claims process. According to the VA’s 2010 budget request, you 

suggested that the goal was to achieve an additional 10,000 cases 

from that surge effort. 

How many new hires does that $150 million provide? 

Admiral DUNNE. Senator, I believe that we will be able to hire 

over 2,000 temporary employees. At the present time, we have already hired almost 1,300 of them. So, some of them have already 

started and we are in the process of training them so that they can 

take on some of the other work—that which we can quickly train 

them and get them started on. 

Senator BURR. Do you stand by the goal of 10,000 claims being 

processed based upon the surge capacity? 

Admiral DUNNE. Senator, I would tell you that that is not based 

on any specific equation that I could put numbers into, et cetera. 

We just had to take a look at how many people we thought we 

could hire. The training that we can do to get them proficient in 

some task. They obviously will not be able to rate claims, but they 

can help us move different support functions through the regional 

office faster. So while they will not have a direct impact on claims, 

we believe it will be an ancillary impact, and that is our best judgment on what we think we can make happen. 

Senator BURR. I appreciate that, and for the purpose of my colleagues to understand that there is a learning curve that these people have to go through, that you cannot go out in the marketplace 

and hire people to walk in on day one and start making disability 

determinations. One really cannot walk in and process claims. 

I might note that this is not a cheap investment. If, in fact, we 

got 10,000 claims off of it, that is $15,000 a claim. When you stop 

to think about it in those terms, you realize just what the size of 

the investment is to try to address this backlog, and to do it by increasing the number of claims that can be processed by people. 

I might say, the most refreshing thing I think I will hear today, 

I heard earlier, is that we need to think in new ways. I appreciate 

that thought, because I think that is what some of us on the Committee have been saying for sometime. We have got to a point 

where we have got to think outside the box. We have got to look 

at doing things in ways that we have not done before. We have got 

to reach out and look at technology, and pull it in and say, how 

can you help us do this. But we also have to look at the process 

that we have and ask ourselves, where can we make changes that 

we are comfortable with that shorten the period of time yet provide 

the right opportunities to a veteran to make sure that their case 

has fully been heard. 

Now, the DAV submitted a proposal to the Committee outlining 

a number of recommended changes to the claims process. In part, 

their proposal recommends eliminating certain procedural steps 

that they see as unnecessary. 

25 

Admiral, do you agree with the basic premise that wherever possible we should try to eliminate unnecessary procedural steps in 

the claims and appeals process? 

Admiral DUNNE. Absolutely, Senator. I am working on that right 

now. 

Senator BURR. Then I would take for granted you are aware of 

some of the steps that probably should be eliminated or should be 

considered for elimination. 

Admiral DUNNE. Senator, I have my own list, yes. 

Senator BURR. Today’s testimony from the Government Accounting Office mentions, and I quote, ‘‘Each time appellants submit new 

evidence, VA must review and summarize the case for the appellant again, adding to the time it takes to resolve the appeal.’’ 

As we will hear later, ‘‘the proposal from the DAV would attempt 

to address this issue by providing the Board of Veterans’ Appeals 

with the authority to review the newly submitted evidence in the 

first instance unless the individual who files disagrees.’’ 

Is that reasonable? 

Admiral DUNNE. Sir, when we get into the appellate category, I 

have to defer to the lawyers because I might see something where 

I would say we could do this faster, but I would not want to deny 

a veteran his legal rights for consideration of certain items. 

Senator BURR. But if it could uphold that legal right, then we 

should do everything to avoid these types of delays? 

Admiral DUNNE. Any delay. I am happy to get rid of sources of 

delays, sir. So, as long as we take care of the veterans in the process and they are amenable to it, I am in favor of it. 

Senator BURR. OK. 

Earlier this year at one of our hearings, I think a number of organizations testified that the VA Appeals Management Center 

should be dissolved. They called it a black hole. And I realize there 

have been attempts to make changes within the center. I would 

like you to be very candid with us. 

Can you update us as to those changes and successes? Then, at 

what point should we collectively look at that and either say it has 

now worked or we need to eliminate it and move on? 

Admiral DUNNE. Senator, we have made some changes. One of 

the changes we made is we put a new director at the AMC here 

in Washington. He has made progress already. I think he will continue to make progress. 

One of my sources of information, of course, is talking with the 

veteran service organizations. I meet with them routinely—at a 

minimum, once a month—to get their inputs. I plan to continue to 

work with them on this and other issues where we can identify 

problems. 

But, I truly believe that consolidating this into one area is the 

best way to go in order to serve our veterans. I do not deny that 

we have had some problems, but that is part of putting the process 

together, and I think we will continue to improve it. 

Senator BURR. So, would I take away from that that we are 

hopeful that a leadership change will resolve the deficiencies that 

are there? Or are there other challenges that we are faced with— 

local job market, et cetera—that come into play? 

26 

Admiral DUNNE. Senator, I would say that this appellate process 

is also affected by the fact that it is paper-borne as well. So, to the 

extent that we can bring IT solutions into the basic claims process, 

that also will help the appellate process. 

One of the big points that I am always making with the folks 

that work on claims is that we need to continue to improve our accuracy because the goal is to touch a claim once. We want to create 

a reputation with our veterans that when we take their claim, we 

handle it, we give them an answer—it is the right answer—and 

that there will be a reduced number of appeals as a result of that 

consistency and accuracy, in addition to using IT solutions, sir. 

Senator BURR. Well, I thank you for that. 

Last question, Admiral, and it is slightly off of today’s topic, so 

I hope you will give me the leeway to do that. 

I understand that the VA recently heard from a number of family 

caregivers who have concerns about VA’s fiduciary program. My office has heard from some of the same caregivers that voiced some 

concerns to the VA. These are wives and parents and siblings of 

severely injured veterans who have dedicated their lives to caring 

for the needs of those individuals—their injured loved ones—and 

they feel that the VA’s fiduciary policies are demeaning and burdensome. 

Do I have your assurance that you will take their concerns seriously and will ensure that the VA’s fiduciary policies are not only 

looking out for the interest of the injured veterans but also are affording the respect, trust and dignity that we owe these family 

caregivers? 

Admiral DUNNE. Senator, I would tell you that I am sworn to do 

that very thing, and I intend to do that. I can tell you specifically 

that Mr. Pamperin here has already reached out to several of the 

VSOs to meet with them and understand what their concerns are 

with the fiduciary process. 

That is always a difficult thing whenever a fiduciary has to get 

involved on behalf of a veteran. We want to make sure that it is 

done properly. We also want to recognize that we are in a new environment and there are younger veterans and families involved. 

So, we perhaps need to revise our rules and processes, and that is 

exactly what we intend to evaluate and pursue, sir. 

Senator BURR. Admiral, I appreciate your candid answer and, 

again, thank all three of you for your service to the veterans. 

Thank you, Madam Chairman. 

Senator MURRAY. Senator Johanns, do you have any additional 

questions? 

Senator JOHANNS. No. 

Senator MURRAY. OK. I just have a few additional questions. Admiral Dunne, you piqued my interest. 

Can you tell us what steps in the claim process are on your list 

for possible removal? 

Admiral DUNNE. I would be happy to, Senator. I will give you an 

example of some of the items. 

One is apportionment. When we get involved with a veteran, 

family member, et cetera, where there is separation, one party will 

apply to us for a portion of the veteran’s benefits in order to be 

properly supported. At the present time, there is a very lengthy, 

27 

detailed process—essentially, in the absence of a court decision, for 

us to go in and play Solomon and decide what the percentage 

breakdown should be. 

I am trying to determine the proper way to approach this so that 

our employees are not asked to play judge and jury but rather to 

have a metric that they go by, which would be fair to all concerned, 

and that would save us a considerable amount of time. 

We have seen some progress as a result of the fully developed 

claim pilot, which Congress authorized us to do. In that environment, where the veteran takes advantage of that, we have been 

able to turn those claims around under the 90-day goal that was 

set in the legislation. So, we intend to pursue that. We are also seeing some success as a result of the checklist, which is added to the 

letter—another pilot that Congress authorized us to perform—and 

we would like to perfect that as well. 

Senator MURRAY. OK. Very good. I appreciate that. 

One of the things I hear from veterans all the time is that their 

paperwork is lost. I understand complex systems and everything, 

but, Admiral Dunne, let me start with you. 

What action can the VA and DOD take to make sure that somebody’s ship or unit location can be readily accessed by VA employees so that they can substantiate a claim? 

Admiral DUNNE. Senator, I think the long-term answer is our 

virtual lifetime electronic record, which, as you know, the President 

charged both the Secretary of Defense and Secretary of VA with 

pursuing. We are hard at work at that. I think that is the longterm solution. 

In the short term, some of the things that we have accomplished—as you recall, last October we did have a problem with 

shredding of documents, et cetera. I believe that the records management program we have put in place as a result of that situation 

is yielding benefits, and we are going to pursue that. One piece of 

paper lost, one piece of evidence, is too many. So, we just have to 

continue to work at it and keep people’s attention focused on the 

fact that that piece of paper is a veteran; it is not just a piece of 

paper. 

Senator MURRAY. Thank you. I appreciate that. 

Mr. Koch, what can the DOD do to keep better records so that 

we do not hear continuously from veterans that their paperwork 

has been lost, cannot be found, and VA cannot substantiate it? 

Mr. KOCH. Senator, I am not sure that the issue is the quality 

of recordskeeping, but the management of those records once they 

are created. I, frankly, do not know what the answer to that is. I 

am sorry. I wish I could give you something more straightforward, 

but I can not. People lose records—I think, particularly, medical 

records. 

Something as simple as putting these things into a thumb drive 

that a servicemember could carry like an electronic dog tag might 

make sense. But then you would have the question of keeping 

these things updated, and that is always a difficult thing to do, so 

that every time you go to get shots, that has to be recorded. And 

sometimes it is difficult to keep these things together and to keep 

them up to date. 

28 

So, there is a question of our responsibility to find a solution to 

this, and the servicemembers share a responsibility as well. Sometimes one side or the other does not do it. Of course, as we understand very well, those are the exceptions that come to our attention 

and that give us so many headaches. 

What is not recorded is the vast majority of records that are 

properly kept and are properly handled, which is not to negate, as 

Admiral Dunne has said, one slip-up is one slip-up too many. But 

in a perfect world, we would not have those slip-ups. We are trying 

to create a perfect world, but I do not think in my lifetime we are 

going to succeed at it. 

Senator MURRAY. Well, we have to keep working at it for sure 

because this is what we hear more than, I think, anything, is somebody’s complete frustration that they cannot get a piece of paper 

that allows them to be able to substantiate and process a claim. So, 

the burden is on you. 

Senator Burr, you had another question? 

Senator BURR. Yes, ma’am, one last one. 

I chuckled, Mr. Koch, at the answer because I sat here thinking, 

you know, MasterCard and Visa can find everybody in America. 

And when they find them, they know exactly what they make and 

they know exactly what risk they are taking. 

I think sometimes there are real merits to us looking outside of 

organizations that we are in and tapping into people that, as you 

said earlier, think in new ways. It is not always incumbent on us 

to think of all those new ways, but it is incumbent on us to look 

out and find those entities that can help us make that transition 

to new ways. I certainly encourage the VA to do that in every appropriate area. 

Admiral, last year, the Congress directed the VA to submit a report regarding a study conducted by Economics Systems, Inc. on 

the issues of earnings, loss, quality-of-life payments, and transition 

payments. In part, the law required VA to set forth what actions 

VA plans to take in response to the study, a timeline for taking 

those actions, and any legislative changes. But I do not see any 

planned actions or timelines laid out in the VA’s report. 

Can you clarify whether VA plans to take any actions in response 

to that study? 

Admiral DUNNE. Senator, we evaluated the study. I would say 

that in the short 6-month period of time Econ Systems had to do 

that, they did a good job of evaluation, et cetera. But what I 

learned from that report is there is more information that we need 

in order to make any decisions or make any recommendations. 

I also recognize that I believe we need an opportunity, a time period for the Congress, all our stakeholders, to read that report and 

evaluate what is in there because some of the recommendations in 

there are truly national policy recommendations which do deserve 

evaluation and debate. And for us to have at this point, with only 

the information we have—put forth a definitive ‘‘this is what 

should be done,’’ I think would not be serving our veterans properly, sir. 

Senator BURR. As a follow-up, does the VA have a position right 

now as it relates to compensating veterans for any loss in qualityVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
29 

of-life caused by their service-connected disability or can I take the 

report as an indication that the VA does not support it? 

Admiral DUNNE. Sir, I would take it as a recognition by VA 

that there is more information that is needed and that there 

is more discussion that needs to take place with many experts before we would be prepared to say yes or no on any of those 

recommendations. 

Senator BURR. Admiral, I will not put you on the spot today, but 

I would love for you to go back and converse with the Secretary because I think what we need from you is what is the next step. 

Rather than to have this lay dormant for some period of time, I 

think it is absolutely essential that you tell us whether the next 

step are congressional steps, the next steps are VA steps, the next 

step is to stimulate the national debate. 

But I think that we have had a number of commissions report, 

and I think many of us have expressed our strong desire that the 

most recent two not join with the other commission reports which 

have found there way to the shelf of dust. I think that they were 

very specific as it related to the need to move to a system that compensated for the loss of quality-of-life. I think there was a consensus within the VA then, and for the most part, I think, in 

Congress. 

I just want to make sure that with this momentum we try to 

come to some finality in the loss, that we get to that point. If at 

the end of the day we determine we have a system that cannot do 

that, then we have to decide whether we change the system to accommodate it, or, in fact, we may find that we can do this and incorporate it in the same system. 

I happen to believe, as you know, that the disability system 

needs to be, for the lack of a better word, updated to reflect where 

we are and the new ways that we have got to think in the future. 

I think a quality-of-life payment is probably very appropriate in the 

context of the overall change to the system. 

Admiral DUNNE. Yes, sir. 

Senator BURR. I thank you and look forward to the comments 

from you or the Secretary on what the next step is. 

Admiral DUNNE. Understood, sir. I will get you an answer. 

Senator BURR. Thank you, Admiral; Madam Chair. 

Senator MURRAY. If there are no further questions from the senators, I want to thank this panel for your testimony and your work. 

There will be time left to submit any questions from senators. 

Again, thank you so much for your testimony this morning. 

With that, we are going to move to our second panel. Please come 

forward and take your seats. 

I want to welcome our second panel this morning. I will introduce them as they are getting seated. 

Our first witness is going to be Michael Allen. He is a professor 

of law at Stetson University. Next, we have Daniel Bertoni, the Director of the Disability Issues from the Government Accountability 

Office, GAO. Our final witness is retired Air Force LieutenantColonel John Wilson. He is the Associate National Legislative Director of the Disabled American Veterans. 

30 

I thank all of you for being here this morning and appreciate 

your appearing before this Committee. Your full testimony will appear in the record. Professor Allen, we are going to begin with you. 

STATEMENT OF MICHAEL P. ALLEN, PROFESSOR OF LAW, 

STETSON UNIVERSITY 

Mr. ALLEN. Thank you, Senator Murray, Ranking Member Burr 

and Members of the Committee. Thank you for the invitation to 

testify here this morning. Most of the other witnesses have talked 

about, or will talk about, the claims processing at the administrative level. I am going to focus my remarks on the end of the process, which is the appellate review—the judicial appellate review of 

those determinations—because, as the Members of the Committee 

have noted at many different times in the past, what goes in at the 

beginning is going to make a difference at the end of the pyramid. 

This coming October marks the 20th anniversary of what we now 

know as the U.S. Court of Appeals for Veterans Claims. Until Congress enacted the Veterans’ Judicial Review Act of 1988, there was 

effectively no judicial review of veterans’ benefits determinations 

outside of the VA administrative process itself. So, the VJRA was 

itself a milestone in the commitment, the evolving commitment, to 

veterans in the United States, and I think it is an opportune time 

to look back and see what has happened in the last two decades. 

I should say that the addition of independent judicial review of 

these veterans’ benefits determinations has been successful, and I 

think we can lose sight of that when we try to think about ways 

to improve the system. 

As I explain more fully in my written testimony, it has been successful in a number of ways. One, it has dramatically increased the 

uniformity and predictability of administrative decisions. Second, it 

has enhanced the actual but also the perceived fairness of the process and it has improved administrative decisionmaking. But despite its successes, independent judicial review has caused or contributed to serious problems in the system. 

First, and most importantly, as the Committee has noted now 

and in past hearings, are the delays that veterans face as part of 

the claims process. One cause of that is the dual layer of appellate 

review, meaning appellate review first at the Veterans Court and 

then a second appellate review at the U.S. Court of Appeals for the 

Federal Circuit. There is no other similar level of dual layer of appellate review right now in the Federal system. 

Second, there are, and as this Committee has noted in the past, 

large numbers of remands. Those large numbers of remands do not 

just occur from the board to the regional office within the administrative system. They occur from the Veterans Court back to the 

board, and this increases delay. 

Third, there is an inability to adjudicate class actions or aggregate litigation at the Veterans Court. And in lots of other contexts, 

class actions can have bad or good connotations, depending upon 

the political views. But, really, the issue here is not the traditional 

class action; it is the ability to handle a large number of claims 

that all have the same legal issue at once. Those factors have led 

to increased delay. 

31 

There is also tension between the Federal Circuit and the Veterans Court. There are tensions between the Veterans Court and 

the Secretary at times. Another problem with judicial review has 

been an issue that Senator Murray alluded to in her questions to 

the last panel, which is that the veteran can get caught in the 

space between the administrative process and the judicial process, 

because whether or not the VA process continues to be non-adversarial, people can debate that. 

But that is the stated purpose of the system. There is a transition point from that system to judicial review before the federal 

courts where it is a traditional adversary system, and veterans face 

a difficult challenge moving from one to another. So, there are 

these problems with judicial review. 

So, what I would urge is for Congress to consider—and I hate to 

use the word ‘‘commission’’ again, Senator Burr—a commission or 

I will call it a working group perhaps, to study the system. What 

changes can be made in the process from beginning to end, including judicial review now that we have 20 years under our belts. 

The key to this idea is that there is the widest possible buy-in 

from affected groups: veterans, the Department and all its facets, 

Congress and the relevant judicial bodies. And I do not think this 

commission should be limited in what it can consider. 

To paraphrase Ranking Member Burr at a hearing in February, 

‘‘This commission should start with a blank piece of paper to design 

this system with no preconceived notions. It has got to keep the interest of veterans in mind, their paramount constitutional issues of 

due process and separation of powers, and the public’s interest in 

the expenditure of resources.’’ 

But beyond that, the system should take the time to step back 

and see where we have been because, after all, only a few hundred 

yards from here in 1865, Abraham Lincoln gave his famous second 

inaugural address in which he called on the Nation to stand up for 

the people who stood up for the country and their dependents. We 

are still doing that today. So for me, it is a distinct honor to even 

be a small part of the process. Thank you. 

[The prepared statement of Mr. Allen follows:] 

PREPARED STATEMENT OF PROF. MICHAEL P. ALLEN, 

STETSON UNIVERSITY COLLEGE OF LAW, GULFPORT, FL 

Mr. Chairman, Ranking Member Burr, and Members of the Committee: Thank 

you for the invitation to testify this morning concerning the current state of appellate review of veterans’ benefits determinations and how this review might be improved. It is a distinct honor to be here to discuss this critically important topic for 

the men and women who have answered the call to serve the Nation. 

I am a Professor of Law at Stetson University College of Law in Gulfport, Florida. 

For the past five years, I have had the pleasure of studying the existing system for 

reviewing veterans’ benefits determinations. As I will explain, one should not lightly 

discount the benefits of the current system given the reality that twenty years ago 

there was no such review. However, there are clearly steps that could be taken to 

improve the existing system. The time is ripe to do so. I applaud the Committee 

for its attention to this important matter. 

My testimony this morning is based in large part on prior work I have done in 

this area. That work is discussed in more detail in two law review articles to which 

I refer the Committee for additional information: Michael P. Allen, The United 

States Court of Appeals for Veterans Claims at Twenty: A Proposal for a Legislative 

Commission to Consider its Future, 58 CATH. U. L. REV. 361 (2009) and Michael P. 

Allen, Significant Developments in Veterans Law (2004–2006) and What They Reveal 

About the U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals 

32 

for the Federal Circuit, 40 U. MICH. J.L. REFORM 483 (2007). [See Appendix for article from Prof. Allen.] 

As I explain below, I believe that Congress should appoint a commission or other 

working group to consider possible improvements in the process by which veterans’ 

benefits determinations are reviewed. While I have my own thoughts about this 

matter (some of which I will share in my testimony), the key to any successful revision of the system will be buy-in from the widest possible cross-section of interested 

groups. As such, the commission or working group should be comprised of representatives of all relevant constituencies including veterans, the Department in all its 

facets, Congress, and the appropriate judicial bodies. Only in this way will the successes of the past twenty years be maintained and the way paved for an even 

brighter future. 

THE CURRENT SYSTEM IN CONTEXT

Until 1988, there was effectively no judicial review of administrative determinations concerning the benefits to which veterans and their spouses and dependants 

might be entitled under relevant law. As the Supreme Court noted (quoting a congressional report), the Veterans Administration operated in ‘‘splendid isolation.’’ 

Brown v. Gardner, 513 U.S. 115, 122 (1994) (quoting H.R. Rep. No. 100–963, pt. 1, 

p. 10 (1988)). This state of affairs changed with the passage of the Veterans’ Judicial 

Review Act of 1988 (the ‘‘VJRA’’), Pub. L. No. 100–687, 102 Stat. 4105 (codified as 

amended in scattered sections of 38 U.S.C.). The centerpiece of the VJRA was the 

creation of what is today called the United States Court of Appeals for Veterans 

Claims (the ‘‘Veterans Court’’). 

In order to assess the current state of appellate review of veterans’ benefits determinations, and the role of the Veterans Court in that process, it is useful to step 

back and consider a high-level overview of the system. The Members of this Committee already have a deep understanding of these matters. As such, what follows 

is simply a general outline of what is a far more detailed system. 

A veteran wishing to receive a benefit to which she believes she is entitled begins 

the process by submitting an application with one of the VA’s regional offices (RO). 

If the veteran is satisfied with the benefits awarded, the process is at an end. However, there are a number of reasons why the veteran may be dissatisfied with the 

RO’s decision. 

When the veteran is dissatisfied with the RO’s decision, she has the option to pursue an appeal within the Department by filing a ‘‘Notice of Disagreement’’ (NOD) 

with the RO. The NOD triggers the RO’s obligation to prepare a ‘‘Statement of the 

Case’’ (SOC) setting forth the bases of the decision being challenged. If the veteran 

wishes to pursue her appeal after receiving the SOC, she must file VA-Form 9 with 

the RO indicating her desire that the appeal be considered by the Board of Veterans’ 

Appeals (‘‘Board’’). 

Congress provided that veterans are entitled to ‘‘one appeal to the secretary [of 

the Department of Veterans Appeals]’’ when denied benefits. See 38 U.S.C. 

§ 7104(a). That appeal in actuality is taken to the Board. The Board is led by a 

Chairperson, appointed by the President and confirmed by the Senate, and a ViceChairperson, designated by the Secretary. The Board is comprised of approximately 

60 Veterans Law Judges and over 250 staff counsel and other support personnel. 

The Board bases its decision ‘‘on the entire record of the proceeding and upon consideration of all evidence and material of record and applicable law and regulation.’’ 

See 38 U.S.C. § 7104(a). In addition to the material developed at the RO, the Board 

may also conduct personal hearings with the veteran at which new evidence may 

be added to the record. A final Board decision concludes the administrative process. 

If a veteran is dissatisfied with a final Board decision, she may elect to appeal 

that decision to the Veterans Court, which has exclusive jurisdiction to review such 

matters. The Secretary may not appeal an adverse Board decision. See 38 U.S.C. 

§ 7252(a). Congress created the Veterans Court under its Article I powers. See 38 

U.S.C. § 7251. The Court is comprised of judges appointed by the President with the 

advice and consent of the Senate to serve fifteen-year terms. See 38 U.S.C. 

§ 7251(a), (b), (c). The Veterans Court has the ‘‘power to affirm, modify or reverse 

a decision of the Board or to remand the matter, as appropriate.’’ See 38 U.S.C. 

§ 7252(a). The Veterans Court is an appellate body that Congress specifically precluded from making factual determinations. See 38 U.S.C. § 7261(c). The Court has 

ruled that its jurisdiction is limited to denial of (or other dissatisfaction with) individual claims determinations. Specifically, the Court has held that it is without 

power to adjudicate class actions or other aggregate litigation concerning more generic issues that may affect groups of veterans. See, e.g., American Legion v. Nicholson, 21 Vet. App. 1 (2007) (en banc) (holding that court lacked jurisdiction to adjuVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
33 

dicate claims brought by an organization as opposed to an individual veteran); 

Lefkowitz v. Derwinski, 1 Vet. App. 439 (1991) (rejecting contention that court had 

the authority to adjudicate class actions). 

Any aggrieved party may appeal a final decision of the Veterans Court to the 

United States Court of Appeals for the Federal Circuit. See 38 U.S.C. § 7292. Review 

of Federal Circuit decisions is available by writ of certiorari in the Supreme Court 

of the United States. See 28 U.S.C. § 1254 (providing for Supreme Court appellate 

jurisdiction concerning decisions of the courts of appeals). Review in these Article 

III courts is limited by statute. Specifically, in the absence of a constitutional issue, 

the Federal Circuit (and at least by implication the Supreme Court) may review 

only legal questions; it specifically is precluded from ruling on a factual determination or on the application of law to the facts in a particular case. See 38 U.S.C. 

§ 7292(d)(2). 

Figure A summarizes the current procedures for considering challenges to the determination of entitlement to veterans’ benefits: 

There is no question that at every stage in the process the current system operates under a staggering workload. This Committee has held numerous hearings over 

the past few years addressing this very real problem. There is no need here to dwell 

upon the statistics at the various adjudicatory levels in the process. For present purVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN

729psALL04.eps
34 

poses, the summary below is sufficient to establish that the system is operating at 

(or perhaps above) capacity: 

Matters Before the Board 

In Fiscal Year 2008, there were 40,916 cases received at the Board (with 43,351 

Form–9s filed). In FY 2008, the Board issued 43,757 decisions. See Fiscal year 2008 

Report of the Chairman, Board of Veterans’ Appeals, available at http://www.va.gov/ 

Vetapp/ChairRpt/BVA2008AR.pdf. 

Matters Before the Veterans Court 

In Fiscal Year 2008, there were 4,128 new cases filed at the Veterans Court. The 

Veterans Court decided 4,446 cases during that period. See United States Court of 

Appeals for Veterans Claims, Annual Reports, available at http://www.uscourts. 

cavc.gov/documents/Annual_Report_-_20081.pdf. 

Matters Before the Federal Circuit 

In Fiscal Year 2008, there were 170 appeals filed with the Federal Circuit from 

decisions of the Veterans Court. See Table: U.S. Court of Appeals for the Federal 

Circuit—Appeals Filed, Terminated, and Pending During the Twelve-Month Period 

Ended September 30, 2008, available at http://www.cafc.uscourts.gov/pdf/ 

b08sep08.pdf. This accounted for approximately 12% of the Federal Circuit’s filed 

appeals during that period. See Chart: United States Court of Appeals for the Federal Circuit, Appeals Filed by category FY 2008, available at http://www.cafc. 

uscourts.gov/pdf/ChartFilings08.pdf. 

EVALUATION OF THE CURRENT SYSTEM

Now is an excellent time to take a step back and consider how the current system 

of appellate review of veterans’ benefits determinations operates. This October, we 

will celebrate the twentieth anniversary of the first convening of the Veterans 

Court. This important milestone provides a time for reflection. That would be so 

even if the system was not being flooded with claims and even if one believes it is 

operating without difficulty. In my opinion, we owe it to veterans to evaluate the 

functioning of the revolutionary changes of two decades ago. 

My remarks will focus primarily on the judicial review portion of the process. 

That is, I will largely confine my testimony to appeals taken from the Board to the 

federal court system. In this portion of my testimony, I will highlight the successes 

of judicial review and then mention some of its shortcomings. 

Successes of Judicial Review 

It is easy to focus on areas on which the current system can be improved. However, it is important to remember the many successes that have resulted from the 

addition of independent judicial review of veterans’ benefits determinations. I highlight four such benefits. 

First, independent judicial review has produced a body of law that has at least 

begun to provide uniformity and predictability for those seeking veterans’ benefits. 

When the Veterans Court began operation twenty years ago there were essentially 

no judicial opinions governing benefits determinations. The ‘‘law’’ in the area consisted almost entirely of the statutes passed by Congress and the actions taken by 

the Veterans Administration in its ‘‘splendid isolation.’’ Today, we are into the twenty-third volume of the Veterans Appeals Reporter containing precedential opinions 

of the Supreme Court, the Federal Circuit and the Veterans Court. These decisions 

provide broad rules governing the claims adjudication process throughout the agency and across the country. All actors in the system are in a position to know the 

law when it is settled and to make reasonable predictive judgments about outcomes 

in individual cases. Such uniformity and predictability could certainly be said to be 

staples of the rule of law itself. Their development over the past twenty years is 

an important success of judicial review under the VJRA. 

Second, over the past twenty years the Veterans Court has grown into a strong, 

independent body. It is easy to forget the challenges that faced the Veterans Court 

at its inception. The judges of the Court were confronted with a situation almost 

unheard of in American law. They were not only writing on a clean slate in terms 

of the content of veterans’ benefits law, they were also required to build an institution from the ground up. Where was the Court physically to be located? How was 

it to pay its bills? How did it fit into other governmental structures? Answering all 

these questions was as important to the success of the enterprise as was producing 

solid judicial opinions. 

Once it was established physically, the Court then needed to focus on its substantive work. One of the striking aspects of the history of the Veterans Court is 

35 

the conscious way in which the judges of the Court over time developed the institution as a court. It is one thing for Congress to say that it is creating a court of law; 

it is quite another for that institution to become one. The Veterans Court’s efforts 

to make itself into an institution commanding respect is itself a benefit of the judicial review process. 

Third, judicial review has provided greater procedural protection for veterans that 

has increased both the actual fairness of the system as well as a perception of fairness in the process. There is no question that one still hears complaints about fairness, but those complaints pale in comparison to the complaints one heard when 

there was no independent process to review administrative decisions. One should 

not lightly discount how important the provision of independent judicial review has 

been to the actual and perceived fairness of the system as a whole. 

Fourth, judicial review has improved the quality of administrative decisionmaking 

in the system. Do not get me wrong. There are still deficiencies in the decisions rendered at the administrative level. However, the Veterans Court’s rigorous enforcement of the statutory requirement that the Board provide adequate reasons and 

bases for its decisions, see 38 U.S.C. § 7104(d)(1), has made a real difference in both 

the transparency of decisions as well as the perception of a fair process. 

Problems with Judicial Review 

Despite its very real successes, the current structure of judicial review has caused 

or contributed to problems that should be addressed. I briefly highlight four such 

issues. 

First, judicial review has increased delays associated with the review of benefits 

determinations. As this Committee has noted time and again in hearings, there are 

unacceptable delays in reviewing benefits determinations at almost every level of 

the current system. An excellent overview of this issue can be found in the material 

associated with this Committee’s February 11, 2009, hearing concerning Review of 

Veterans’ Disability Compensation: What Changes are Needed to Improve the Appeals Process?. Of course, with no other changes to the system any addition of a review by an independent body would add some measure of delay. The issue is that 

the way in which judicial review is structured has increased delay beyond that required by providing for such review in the first instance. There are three prime examples of such needless delay: 

• The current system has two levels of appellate review (leaving aside the possibility of review by certiorari in the Supreme Court). A veteran dissatisfied with a 

Board decision may appeal as of right to the Veterans Court. In addition, any party 

dissatisfied with the Veterans Court’s decision may appeal as of right to the Federal 

Circuit. This double layer of appellate judicial review is unique in the Federal system. It certainly adds time to the appellate process. Of course, that time may be 

justified by other factors, such as a perceived increase in the accuracy of decisions. 

Nevertheless, any consideration of the current system needs to address this duplicative appellate process. 

• As the Committee has noted, the prevalence of remands in the system leads to 

increased delays in the resolution of disputes. Remands are an issue at the administrative level due to the practice of allowing claimants to have an initial adjudication 

followed by one review at the Board level. The practical effect of this practice is 

what has been called a ‘‘hamster wheel’’ process by which cases are shuttled from 

the Board to the RO and then back again as new facts are adduced. Remands are 

also a problem at the judicial level. Here, the issue stems in large part from the 

statutory limitation on the finding of facts at the Veterans Court. The Court was 

meant to be an appellate body. As such, when an error is found—say, an inadequate 

statement of reasons and bases by the Board—the Veterans Court’s usual course is 

to remand the matter for re-adjudication instead of reversing the Board’s decision 

and ordering that benefits be awarded. Such remands, even if one assumes them 

to be mandated by current statute, unquestionably add time to the resolution of disputes. 

• A final example in this area concerns the Veterans Court’s holdings that it does 

not have the authority to entertain class actions or other forms of aggregate litigation. In the cases cited earlier in my testimony, the Court reasoned that it was limited to cases in which a veteran challenged a specific, individual Board decision. 

Again, assuming that this reading of the law is correct, one cannot avoid concluding 

that the absence of such authority to address multiple cases at once has an effect 

on system-wide timeliness of adjudication. 

Second, the current system of judicial review has built into it a serious risk of 

prejudice to veterans. This prejudice flows from the movement of the veteran from 

the administrative system that is designed to be non-adversarial to the judicial process which is patterned on traditional adversarial litigation. This movement can 

36 

leave veterans, particularly those unrepresented at the filing of a judicial appeal, 

at risk of running afoul of rules designed to implement an adversarial system. For 

example, the time periods within which veterans are required to take certain actions 

in the administrative system are generally longer and more flexible than the time 

periods they will confront before a court. Such issues in transition are a significant 

hurdle for many veterans moving between systems. 

Third, there is at times an unusual tension between the Veterans Court and the 

Federal Circuit. Under the current structure, both these courts play important roles 

in the system. However, one cannot read the opinions of these bodies without being 

left with the firm conviction that there are occasions on which each court displays 

a certain lack of respect for the other. I have discussed this issue in more depth 

in the articles to which I referred earlier. For now, my point is that this tension 

is a product of the current structure of judicial review. 

Fourth, while the Veterans Court has worked diligently to establish itself as an 

independent institution over the past twenty years, the Department has not always 

acted in ways that reflect the respect the Court is due. I believe the Department’s 

attitude is at least partly caused by the Veterans Court’s status as an Article I tribunal with Article III oversight in the Federal Circuit. A prime example of this attitude can be found in the Department’s actions concerning two Veterans Court decisions with which the Secretary strongly disagreed. One case concerned the Veterans 

Court’s decision that a veteran was entitled to independent ratings for tinnitus in 

each ear. Smith v. Nicholson, 19 Vet App. 63 (2005), rev’d 451 F.3d 1344 (Fed. Cir. 

2006). The second dealt with a statutory presumption concerning exposure to certain 

pesticides by those persons serving on naval vessels in the in-land waters of the Republic of Vietnam. See Hass v. Nicholson, 20 Vet. App. 257 (2006), rev’d sub nom 

Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In each instance, the Secretary unilaterally ordered that the Board stay the adjudication of all cases affected by the 

Veterans Court’s rulings while he sought an appeal. In neither instance did the Secretary seek a judicial stay order. It is inconceivable to me that the Secretary would 

have acted in this respect toward an Article III judicial body. Perhaps he would not 

have done so if the Veterans Court was the last realistic venue for appellate review 

(whether the Court retained its Article I status or not). These actions reflect a serious and dangerous impediment to the recognition of independent judicial review. In 

both instances, the Veterans Court issued decisions critical of the Secretary’s actions. See Ribaudo v. Nicholson, 20 Vet. App. 552 (2007) (en banc) (concerning 

Haas); Ramsey v. Nicholson, 20 Vet. App. 16 (2006) (concerning Smith). I am not 

convinced, however, that the Secretary’s attitude will necessarily change if the current structure remains in place. 

In short, while the addition of judicial review has provided many important benefits to veterans, it has also caused or contributed to certain drawbacks in the system. The question then becomes: what should be done? 

WHAT SHOULD BE DONE?

In past hearings, Members of this Committee have made an important point 

about changes to the current system of review of benefits determinations. Specifically, Members have noted that one should consider both focused changes in the current system as well as the distinct question concerning more sweeping alterations. 

I believe that this distinction is important. While my testimony is principally focused on the latter issue, I begin this portion of my comments by mentioning at 

least some targeted matters that could be undertaken more immediately than any 

type of sweeping reform. 

Some Targeted Matters 

There are certain steps that could be taken within the current system to address 

some of the drawbacks I have discussed above. I again principally limit my testimony to the judicial review of benefits determinations. I should note that some of 

the matters I mention are already in the works in one form or another: 

• Congress has already taken one critically important step to address some of the 

issues facing the system as currently constituted: the addition of judges to the Veterans Court. In the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110– 

389, 122 Stat. 4145, Congress authorized the addition of two judges to the Veterans 

Court, bringing its complement to nine. Those additional judges are temporary, with 

Congress set to re-assess the matter in 2012. I urge Congress and the President to 

act as expeditiously as possible to fill these positions (which come into force in December 2009) and to monitor the effect of these additional judgeships on the workload of the Veterans Court. 

37 

• The Veterans Court itself has also taken steps to address some of the difficulties veterans face, in particular issues involving the movement from the non-adversarial administrative process as well as the delays veterans face in the system generally. For example, under the leadership of Chief Judge Greene, the Court has 

adopted a mediation program that appears to be helpful in resolving cases. The 

Court has also taken steps to address the assembly of the appellate record that 

should help reduce delay. Finally, the Court has largely moved to a paperless system that should also have a positive effect on the time to disposition. I urge Congress to support the Veterans Court in these and similar efforts. 

• One of the difficulties with assessing the successes and shortcomings in the current system is obtaining relevant empirical information. Relevant information is collected and disseminated by different bodies (e.g., the Board, the Veterans Court, and 

the Federal Circuit). As such, it is often difficult to compare apples to apples. Without an empirical foundation, it is both challenging and potentially dangerous to 

make changes in the system. I urge Congress to consider whether there are means 

for a standardized collection of information relevant to issues facing veterans in the 

system. 

• As I mentioned, the Veterans Court has held that it is without the authority 

to adjudicate class actions or other aggregate litigation. I believe Congress should 

amend Title 38 of the United States Code to provide that the Veterans Court may 

adopt a class action/aggregate litigation procedure. I do not believe Congress should 

mandate that the Veterans Court adopt such a procedure. There are too many interconnected issues for such a mandate to necessarily improve the system. But the Veterans Court should have the clear authority to adopt such a rule if the judges of 

that Court, in consultation with those who practice in this field, conclude it would 

be beneficial to the prompt and fair adjudication of claims on a system-wide basis. 

• Finally, the Veterans Court could more aggressively exercise its authority to reverse Board decisions instead of remanding them for further factual development. 

Deciding when a Board decision is inadequate due to the failure to provide reasons 

and bases for a decision or simply legally erroneous is a matter of degree. It is fair 

to say that at this point the Veterans Court is far more inclined to find that Board 

decisions are insufficiently supported by explanations, a decision that leads to remand and delay. The Veterans Court should consider whether more such decisions 

could actually be considered simply erroneous, a result that would lead to reversal 

and an award of benefits. While I believe that such a re-evaluation should be done, 

I do not believe it should be mandated by legislation. The Court is in the best position to make such decisions. 

THE BIGGER PICTURE

This brings me to the more macro level questions concerning the current system 

of review of veterans’ benefits determinations. As I alluded to at the beginning of 

my testimony, Congress should establish a commission or other working group to 

study the judicial review of veterans’ benefits determinations. The Commission 

should be led by a chairperson or chairpersons who are widely respected and seen 

to be independent, particularly of influence from the Department. The leader or 

leaders of the Commission must also be politically savvy as well as capable of the 

follow though necessary to make the Commission’s work meaningful in the real 

world. 

The Commission should be composed of representatives of all the relevant constituencies affected by and involved in the award of veterans’ benefits. These constituencies include: veterans (and other claimants in the system), most likely represented through the various Veterans Service Organizations; the Department in all 

its facets (thus the RO adjudicators, the Board, the litigation arm of the Department 

and the Secretary, probably through the Office of the General Counsel, should all 

be included); the Veterans Court; the Federal Circuit; and Congress itself. 

Congress should also ensure that the Commission has adequate resources with 

which to perform its functions. The Commission should be provided with a staff for, 

among other things, data collection and analysis as well as space in which to work. 

It should also have funds available sufficient to allow the Commissioners to travel 

so that public hearings can be held to obtain the greatest input of views as part 

of its work. 

The Commission should be charged with evaluating the current state of appellate 

review of veterans’ benefits determinations and making recommendations concerning what changes might be made to that system. There should be no constraints 

imposed on the Commission with respect to the options it might consider and/or propose. Finally, the Commission should be directed to submit a report to Congress 

within a defined period of time. That report should describe the Commission’s activiVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
38 

ties, provide relevant background and statistical information, and set forth specific 

proposals for changes to the system warranted by the Commission’s investigation. 

While the Commission should not be limited in terms of the matters it considers, 

it should keep three interests in mind during its investigation and deliberations: 

The Interests of Veterans 

The paramount interest the Commission must consider is that of the veteran. The 

nation should never forget—and I am confident none of the people involved in the 

process do—that the entire structure of veterans’ benefits law exists for the purpose 

of providing support to the men and women who served this country. Thus, the 

Commission must ensure that it proposes nothing that harms the interests of the 

beneficiaries of the system. 

Veterans’ interests fall into five broad categories: 

• Accuracy: Veterans have an interest in ensuring that decisions concerning the 

award of benefits be as accurate as possible. The gains in accuracy that have likely 

been achieved over the past twenty years due in part to judicial review should be 

preserved. 

• Fairness: It is critically important that the system of awarding benefits and reviewing such decisions both be fair and be perceived as being fair. Veterans need 

to believe that the system provides an opportunity for their claims to be adjudicated 

in a manner that is, broadly speaking, consistent with the rule of law. Thus, the 

gains in the nature of VA decisionmaking (e.g., better reasoned decisions) need to 

be preserved. In addition, the substantive fairness of the process needs to be preserved as well. Finally, one needs to be concerned with the speed of the decisionmaking process. 

• Transparency: Closely related to fairness is veterans’ interest in a transparent 

process. Largely as a result of the influence of the Veterans Court (although aided 

by Congress), the process of awarding benefits has become more open. That trend 

should be preserved. 

• Predictability: It is important that the Department and veterans and their counsel be in a position to predict how issues will be resolved. Of course, there will always be a level of uncertainty in any legal system populated by humans. Nevertheless, the value of enhanced predictability of results is important systemically. 

• Finality: No legal system can exist for long in any functional respect if disputes 

never come to an end. Veterans, as well as the VA, have an interest in having disputes resolved once and for all. The value of finality should not drive the system. 

There should be means of correcting errors, but those means need to be balanced 

against the interests of repose. Thus, finality itself is a value that should be considered when evaluating the current—or a future—system concerning the award of veterans’ benefits and the judicial review of such decisions. 

Institutional Concerns 

A second interest that the Commission must consider concerns the preservation 

of American constitutional values. In particular, the importance in the American 

constitutional order of the maintenance of separate and independent centers of political authority must be a part of the Commission’s deliberations. This is a structural 

concern. Thus, it is important to preserve an independent institutional check on the 

political branches’ authority to award veterans’ benefits. 

The Veterans Court was created as an Article I tribunal, meaning that its members do not enjoy the tenure and salary protections afforded judges serving in the 

coordinate Article III judiciary. Under well-established law, there is no structural 

constitutional violation flowing from the assignment of the adjudication of disputes 

concerning veterans’ benefits to such an Article I tribunal. Veterans benefits are a 

‘‘public right.’’ That is, entitlement to benefits flows from statutes instead of the 

common law or the Constitution itself. See, e.g., Northern Pipeline Construction Co. 

v. Marathon Pipe Line Co., 458 U.S. 50, 69 n.22 (1982) (describing ‘‘payments to veterans’’ as an example of a public right (citation omitted)); Congress has wide latitude to assign the adjudication of disputes concerning such public rights to non-Article III adjudicators such as the Veterans Court. See, e.g., Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986); Thomas v. Union Carbide Agricultural 

Products Co., 473 U.S. 568 (1985). 

The institutional concern the Commission must consider is less formalistic than 

a suggestion that one must necessarily have the Article III judiciary (beyond the Supreme Court) involved in the process to make it legitimate. Of course, that is one 

way in which one could preserve institutional concerns regarding separation of powers. But there are other ways in which such power divisions can be established and 

maintained. The key is that one needs to ensure that the system of review employed 

39 

in the process contains sufficient independence that there is a meaningful check on 

the unilateral authority of the political branches. 

The Public Interest 

Finally, any consideration of the judicial review of veterans’ benefits decisions 

needs to take into account the public’s interest in maintaining a system that, while 

fair to veterans, also safeguards the great resources devoted to veterans and their 

dependants. The public has a right to ensure that the funds allotted to the Department for the payment of veterans’ benefits are spent according to the directions of 

Congress. 

As I near the end of my remarks, I wanted to highlight some of the more important issues the Commission for which I have called should address. This list is by 

no means exhaustive. Rather, it is meant to illustrate some of the matters that I 

see as most significantly in need of attention. Moreover, I do not necessarily suggest 

that any of the steps I mention should be taken. The key is that they be considered. 

I mention five primary matters: 

• The Commission should consider whether the Federal Circuit should remain as 

part of the system for review of veterans’ benefits determinations. There is no question that having a second layer of as-of-right appellate review adds delay to the system. On the other hand, some could argue that any additional delay is justified by 

the error-correcting function of the Federal Circuit. The question the Commission 

should consider is whether any such error-correcting function is worth the cost in 

delayed resolution. There is no requirement that the Federal Circuit remain as part 

of the process. For example, the United States Court of Appeals for the Armed 

Forces is an Article I court with review by way of the writ of certiorari in the Supreme Court. While I have reached no firm conclusion on this point, I lean toward 

removing the Federal Circuit from the process. The fact is that delayed resolution 

in the system is a significant problem. The removal of the Federal Circuit is a relatively easy way to reduce delay. 

• If the Federal Circuit remains in the appellate review system, the Commission 

should consider whether that court’s jurisdiction should be expanded. As I have 

mentioned, at present the Federal Circuit is precluded from reviewing factual determination or the application of law to fact. This prohibition leads to a fair amount 

of ink being spilled as to whether a certain issue is one dealing with a pure legal 

question or rather it concerns the application of law to fact. If the Federal Circuit 

is deemed to add value to the process, consideration should be given to whether the 

benefits of the current jurisdictional restrictions outweigh the costs. 

• A third issue the Commission should consider is whether the Veterans Court 

should be converted into an Article III body. Such a conversion, if warranted, could 

take place regardless of whether the Federal Circuit remained as part of the appellate review process. Article III status could augment the respect the Veterans Court 

receives from the Secretary as well as other courts. In addition, Article III status 

would allow the court to more easily utilize the support mechanisms for the Federal 

judiciary. Of course, there are also potential negative effects of a conversion, including less turnover in judges and, perhaps, greater politicization of the appointment 

and confirmation process. 

• The Commission should consider the appropriate place of the Board in the appellate process. As Members of the Committee have noted in the past, the Board 

came into existence in a time when there was no judicial review. Given the fundamental shift twenty years ago ushering in the current era of judicial supervisor, a 

fresh look should be taken at the Board’s function as well as its structure. 

• Finally, the Commission should evaluate the jurisdiction of the Veterans Court. 

The Court is currently prohibited from making factual determinations. I suspect 

that any review would likely conclude that the Court should remain an appellate 

tribunal without fact-finding authority. However, the prohibition on fact-finding 

does have an effect on delays in the system because the Veterans Court often feels 

compelled to remand matters in which it has found an error instead of reversing 

Board decisions outright. The Commission should consider whether there are statutory changes that could be made that would preserve the Veterans Court’s status 

as an appellate body but also decrease needless remands. 

CONCLUSION

In conclusion, I want to stress that nothing I have said here today should be 

taken to cast aspersions on anyone involved in the current system for the award 

and review of veterans’ benefits. I firmly believe that the people who have elected 

to devote a good portion of their professional lives to working in this system have 

nothing but the best interests of veterans at heart. In many respects, they are heVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
40 

roes themselves because they are a contemporary example of President Abraham 

Lincoln’s call in his famous Second Inaugural Address (as slightly edited to reflect 

today’s society) for the Nation ‘‘to care for him [and her] who shall have borne the 

battle and for his widow [or her widower], and his [or her] orphan.’’ 

Thank you again for allowing me to testify today. 

Senator MURRAY. Thank you. 

Mr. Bertoni? 

STATEMENT OF DANIEL BERTONI, DIRECTOR, DISABILITY 

SERVICES, GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. BERTONI. Senator Murray, Members of the Committee, good 

morning. I am pleased to be here to discuss the Department of Veterans Affairs Disability Compensation Claims process. I want to 

preface my remarks by saying some of the numbers I will reference 

today will be slightly different than what we have been hearing. 

We focused for this Committee on our ongoing work only on compensation claims. We have isolated DIC and pension out of our 

analyses, so the numbers will be slightly different although the 

trends are consistent. 

Last year, VA paid over $31 billion of disability benefits to 3 million veterans. For years, VA’s claims process has been a subject of 

concern due to long waits for decisions and large numbers of pending claims. My statement today is based on prior and ongoing work 

for this Committee and discusses trends and compensation claims 

as well as the steps the agency is taking to improve service 

delivery. 

In summary, over the last decade, disability workloads have improved in some areas and worsened in others. Since 1999, VA has 

steadily increased the number of initial claims processed annually 

by 60 percent to 729,000, and the agency has realized substantial 

gains in the number of claims processed over the last three fiscal 

years. 

Last year, compensation claims were pending an average of 123 

days, down from 152 days in 1999, but still in excess of VA’s goal 

of 116 days. Despite these gains, the inventory of claims waiting 

a decision has increased 65 percent to 340,000. Those pending more 

than 6 months have increased by 20 percent. More recent data 

shows that pending claims declined slightly between 2007 and 

2008. However, the average time VA took to complete a claim increased from a low of 181 days in 2004 to 196 days in 2008. 

Regarding disability appeals, VA has also experienced some 

gains and setbacks. Since 2003, the number of appeals processed 

increased by 22 percent and the number of pending cases decreased 

from 126,000 to 95,000. Unfortunately, average processing time has 

trended upward from 543 days in Fiscal Year 2003 to 639 days— 

over 21 months—last year. 

Various factors have contributed to the trends in disability workloads, including substantial increases in the number of claims received, growing claims complexity and laws, court decisions and 

regulations changes, which have expanded workloads over time. 

VA has taken several steps to expedite service to veterans. First, 

the agency has hired thousands of additional claims processing and 

appeals board staff and plans to use Recovery Act funds to hire 

1,500 additional support staff going forward. 

41 

This infusion of staff has helped VA process more claims, and 

that explains the positive trends in recent data. However, VA has 

cautioned that per person productivity will decrease in the short 

term because it takes from 3–5 years for staff to become fully 

trained and proficient. We have also noted that quickly absorbing 

these staff will likely pose substantial human capital challenges 

going forward in regard to training and deployment. 

Second, beyond increasing staff, VA has also expanded its efforts 

to redistribute key workloads to 15 resource centers. These centers 

process claims for backlogged offices, often specializing in distinct 

phases of the process, such as claims development or ratings. In 

fiscal year 2008 alone VA redistributed over 140,000 ratings cases. 

And although such actions could improve processing time and consistency, VA has not yet collected key data to evaluate the effectiveness of these centers. 

Third, VA has expanded efforts to assist servicemembers in filing 

claims prior to leaving the military when their personnel and medical records are most accessible and up to date. 

In 2008, VA received 32,000 claims through this program known 

as Benefits Delivery at Discharge or BDD. To improve consistency, 

all BDD rating activities are consolidated at two VA regional offices, and on average, processing times for these claims are shorter 

than for other claims. However, we have recommended that VA 

take additional steps to improve its measure for BDD timeliness 

and quality and to ensure access to members of the National Guard 

and Reserves who represent 1 in 4 disability applicants. 

While VA has a number of other initiatives underway, I will conclude by noting that it is piloting a joint disability evaluation process with DOD to improve the transparency, timeliness and quality 

of disability evaluations. Key pilot features include a single physical exam and a single disability rating prepared by the VA for determining both military retirement and VA disability benefits. If 

the pilot is successful, the likely outcome will be worldwide implementation of this streamlined system and a substantial change in 

the way many veterans first receive VA benefits. 

We have noted, however, that broader expansion will require development of a comprehensive service delivery plan, sound performance measures, and resolution of key operational challenges, such 

as who will perform the single physical exam at locations where 

there is no VA facility nearby. Both agencies have been working to 

address these and other concerns. 

Senator Murray, this concludes my statement. I am happy to answer any questions you may have. Thank you. 

[The prepared statement of Mr. Bertoni follows:] 

42 


729psGAO01.eps
43 


729psGAO02.eps
44 


729psGAO03.eps
45 


729psGAO04.eps
46 


729psGAO05.eps
47 


729psGAO06.eps
48 


729psGAO07.eps
49 


729psGAO08.eps
50 


729psGAO09.eps
51 


729psGAO10.eps
52 


729psGAO11.eps
53 


729psGAO12.eps
54 


729psGAO13.eps
55 


729psGAO14.eps
56 


729psGAO15.eps
57 


729psGAO16.eps
58 


729psGAO17.eps
59 


729psGAO18.eps
60 

Senator MURRAY. Thank you very much, Mr. Bertoni. 

Colonel Wilson. 

STATEMENT OF JOHN L. WILSON, LT. COL, USAF (RET.), ASSOCIATE NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS 

Colonel WILSON. Madam Chair, Members of the Committee, I am 

glad to be here today on behalf of the Disabled American Veterans. 

As you know, the claims process is complex and lengthy. VA estimates that it will decide over 940,000 claims in 2009, but it may 

well be 1 million considering the total workload. It is also important to note that the VA has decided close to 200,000 more claims 

than it decided just 2 years ago, which is a likely indication that 

the VA is making good use of the additional staffing provided by 

Congress over that same period. What is discouraging is that the 

VA may actually receive just as many new claims as it decides this 

year, which is also close to 200,000 more than just a couple of years 

ago. 

Short of growing VA’s workforce indefinitely, what solutions are 

available to us? The DAV believes it has a viable solution. We have 

presented this Committee with the DAV’s 21st Century Claims 

Process proposal, which is intended to simplify the process while 

preserving resources and reducing expenditures. 

Our proposal begins with the initial stages of the claims process 

and continues through the entire appellate process. Our recommendations are carefully aimed at making efficient a rather inefficient 

process without sacrificing a single earned benefit. 

They include: (1) amending legislation to indicate that the VA 

will assist a claimant in obtaining private medical records only 

when such assistance is requested by the claimant on a form prescribed by the Secretary; (2) amending legislation to allow the VA 

on its own to waive all VCAA requirements when it determines 

that evidence of record is sufficient to award all benefits sought; (3) 

amending legislation so VA could issue appeal election letters at 

the same time as the initial rating decision; (4) amending legislation to decrease the period in which a VA claimant may submit a 

timely notice of disagreement to the VA, following the issuance of 

a VA rating decision from 1 year to 6 months; (5) amending legislation in a manner that would specifically incorporate an automatic 


729psGAO19.eps
61 

waiver of regional office jurisdiction for any evidence received by 

the VA, to include the board, after an appeal has been certified to 

the board following submission of a VA Form 9 unless the appellant, or his or her representative, expressly chooses not to waive 

such jurisdiction. 

These and other suggested changes could result in reduced preappellate stage processing time between 30 and 90 days, and as 

high as a 3-year reduction for certain post-remand appellate cases. 

My written testimony contains many more details regarding 

these suggestions, to include how they could be incorporated into 

a new digital claims process as part of a new electronic record and 

imaging scanning center. Implementation of this legislative package will result in a dynamic responsive claims process with flexibility for future growth. 

In closing, the VA will never be able to maximize its recent increases in staffing without making its processes more efficient. If 

such changes are made, the VA will see vast improvements in its 

entire claims process that are essential to achieving the broader 

goals of prompt and accurate decisions on claims. Likewise, only 

then will the VA be able to incorporate training, quality assurance, 

and accountability. Such programs have been demanded by the veterans community. 

It has been a pleasure to appear before this honorable Committee 

today and I look forward to your questions. 

[The prepared statement of Colonel Wilson follows:] 

PREPARED STATEMENT OF JOHN WILSON, ASSOCIATE NATIONAL LEGISLATIVE

DIRECTOR, DISABLED AMERICAN VETERANS

Mr. Chairman, Ranking Member and Members of the Committee: I am pleased 

to have this opportunity to appear before you on behalf of the Disabled American 

Veterans (DAV), to address problems and suggest solutions to the Department of 

Veterans Affairs (VA) disability claims process. 

The claims process is complex as a result of the scope of benefits that the VA is 

mandated to consider and potentially deliver. The DAV has presented this Committee with our comprehensive suggestions for what we have dubbed the 21st Century Claims Process. Our suggestions would help reduce the Veterans Benefits Administration claims backlog. 

DAV’s 21st Century Claims Process represents an ambitious but achievable goal. 

The proposal benchmarks certain milestones be achieved by VA with assistance 

from Congress. Essentially, our plan focuses on creation of digital architecture to 

receive and manage all claims, as well as legislative changes to streamline the 

process. 

The legislative recommendations are not only vital to the success of this proposed 

process, but will also bring cost-savings efficiency to the current claims process— 

efficiency perhaps equaling more than 100,000 reduced work hours annually and reducing initial average claims processing time by at least 30–90 days. 

We have shared this proposal with committee staff, current and former VA officials, and other veterans’ service organizations. Their recommendations were incorporated where feasible. 

In DAV’s plan, the initial claims process (pre-appellate stage) essentially consists 

of adjudication stage one, adjudication stage two, and a rating team. Adjudication 

teams one and two will perform functions similar to the current triage and predetermination teams, but in a revised and more efficient format. 

The backbone of the entire 21st Century Claims Process is the Imaging Scanning 

Center (ISC)/drop box-mail point and a data-centric claims management system. An 

opportunity to benchmark an effective system records management system and 

data-centric application with adjudication features can be found at the Social Security Administration. 

In our current draft of this process, all paper claims and paper in support of 

claims will be routed to the ISC for immediate imaging and inclusion in the electronic record. The electronic records warehouse center should be housed centrally 

62 

and accessible by all points in VBA. The ISC and electronic records center (electronic warehouse) will be linked directly to each other with a dedicated and secure, 

high-speed connections. 

Another benefit to the proposed system would be that any evidence received by 

the ISC would be viewable in the official record the following day. It currently takes 

many days, or even weeks, for VA to incorporate new evidence into a claims folder. 

Lost or incorrectly destroyed records would be a problem of the past. In addition, 

data-centric forms would be developed 

Upon receipt of the claim by ‘‘team one,’’ the claim would be analyzed on a datacentric form with one of the design features displaying the veteran’s intent with respect to the type of benefit(s) claimed. This will facilitate immediate establishment 

of ‘‘end product codes’’ (or viable replacement system). In addition to utilizing datacentric forms for rapid claims identification and establishment, such data-centric 

forms and resulting codes will also be utilized to determine the kind of ‘‘notice’’ VA 

is required to send the claimant, and (as near as possible) the type of assistance 

VA is required to offer the claimant in developing the case. 

For example, consider a veteran requesting an increased rating for a single service-connected disability that does not have supporting private treatment records 

(PTRs), and therefore only needs a current VA examination. The claims form would 

clearly annotate that the veteran is requesting an increased rating for XYZ disability and has not received treatment outside of VA. Under the current process, the 

veteran is required to undergo the entire development process, despite that fact that 

the veteran only requires a current VA examination. Therefore, legislative amendments to VA’s ‘‘duty to notify/assist’’ are necessary so as not to require VA to undertake futile development in such a case. 

If the same scenario occurred but the veteran had PTRs, such info must be clearly 

indicated on the claims form. The modified notification letter would then inform the 

veteran that VA requests he/she obtain the PTRs and submit them to VA (mailed 

to ISC) within 30 days. The same notification would also clearly and in understandable language inform the veteran that if, and only if, he/she cannot or will not obtain PTRs, then VA will assist if the veteran submits VAF 21–4142 (enclosed with 

notification only in cases where PTRs are indicated on the claims form). 

In addition to the this change regarding development of private records, another 

legislative change to current Duty to Assist requirements should be incorporated 

that would allow the VA on its own to waive all notice and assistance under the 

Veterans Claims Assistance Act (VCAA) of 2001 when the VA determines that the 

evidence of record is sufficient to award all benefits sought. Such a change would 

be instrumental in expediting numerous types of claims wherein the VA must currently follow all VCAA requirements despite having evidence sufficient to award 

benefits. (E.g., certain claims under 38 CFR §§ 3.22, DIC benefits for survivors of 

certain veterans rated totally disabled at time of death; 3.309, Disease subject to 

presumptive service connection; 3.312, veteran’s death considered service-connected 

when the evidence establishes disability was either the principal or contributory 

cause of death; 3.350, Special monthly compensation; 4.16, Disability Ratings for 

Compensation Based on Individual Unemployability; 4.28, temporary total rating 

based on convalescence; 4.29, Ratings for service-connected disabilities requiring 

hospital treatment or observation.; 4.30, Convalescence ratings; etc). 

The recommendation to allow the VA to waive, on its own, all notice and assistance for claims when the VA can award all benefits sought should be utilized in 

conjunction with section 221 of Public Law 110–389, the Veterans Benefits Improvement Act of 2008. This section, among other things, directs the Secretary to carry 

out a pilot program at four VA regional offices to assess the feasibility and advisability of providing to claimants and their representatives a checklist of information 

and evidence required to substantiate a claim. 

However, if utilized in conjunction with this recommendation, such a checklist 

could be crafted in accordance with specific regulations as mentioned above. A 

memorandum of understanding (MOU) could then be drafted between the VA and 

all service organizations housing representatives within each regional office. The 

MOU should specify that each representative screen cases that qualify under certain 

prescribed guidelines, and then deliver such cases directly to one or two designated 

VA rating specialists for no less than a two-week turn around for rating such a case. 

In the 1990s, VBA conducted a pilot program in the St. Petersburg regional office 

under the title, ‘‘Partner Assisted Rating and Development System.’’ (PARDS). Our 

recommendation is similar to the PARDS pilot. 

This approach would not require VA employees to spend valuable time screening 

cases that could qualify under this expedited plan. It would also engage representatives in a more structured and less interest-conflicting manner. If executed properly 

63 

and maximized to its fullest potential, such a procedure could have the potential to 

produce close to 100,000 rating decisions per year within two weeks processing time. 

Regarding other claims, the items team one can complete under this plan will require one to three days, but should not require more than one week. Under the current disability timeline, these same functions take 44 days on average. 

Following completion of team one functions, the electronic claim immediately goes 

to team two. With the exam requested and the notification sent to the claimant (or 

waived), team two will require little or no action on the case. Team two serves primarily as a more advanced stage of development for those cases with more complexity, such as those requiring stressor or other service information verification, development of private records, or complexities returned from the rating team. Team 

two will not be forced to deal with many of the activities that complicate functions 

of its current equivalent, the pre-determination team. Therefore, team two will be 

able to take more time and potentially produce more accurate rating decisions for 

more complex cases. 

The actions of teams one and two must take place in a fluid, but accurate manner. 

If executed properly, many cases received by VA will be ready to rate within 30 days 

because the notice response (to the current VCAA process) will be complete as will 

any required compensation and pension (C&P) examinations. The rapid initiation 

and synchronized completion of these two milestones are the keys to success in this 

revised process. 

Many cases will inevitably require extended processing times due to development 

that cannot be streamlined because of inter-agency roadblocks, (i.e., combat-stressor 

development from the Department of Defense’s Center for Research of Unit 

Records). However, many other cases, such as ones similar to the examples above, 

could be ready to rate much faster than 60 days because of considerably fewer developmental requirements. 

The 21st Century Claims Process achieves, on average, at 30 days what the current paper-locked, procedure-heavy system achieves at approximately150–160 days. 

Once ready to rate within 30 days, the final rating team will have 30 days in 

which to issue a decision, a process that currently takes 13 days on average. With 

more time to review cases by the rating teams, contained within a much shorter 

overall processing time, decisionmakers can focus far more on quality than the current system allows, but without sacrificing production standards. This process will 

be greatly enhanced by even a modest rules-based automated rating system—one 

that will quickly and accurately process cases wherein there is nearly no room for 

debate, such as hearing loss and tinnitus ratings or paragraph 29/30 (hospitalization 

and convalescence) ratings, among others. 

When VA issues a rating decision, an appeal election letter will be included. This 

will prevent VA from having to mail more than 100,000 letters annually to claimants appealing their decision and will reduce the appellate processing time by 60 

days. The letter will explain that any notices of disagreement submitted without 

electing a post-decision review (DRO) process will automatically be reviewed under 

the traditional appeal process. (The same thing currently happens if a claimant does 

not respond to the appeal election letter). This could be accomplished either by a 

legislative or administrative change. If addressed legislatively, 38 U.S.C. 5104(a) 

would be modified to permit inclusion of an appeal election letter. As noted earlier, 

the VA does have the option, through proper rulemaking procedures, to amend current guidance and make an administrative change to accomplish the same task. 

A claimant wishing to appeal a decision will have 180 days in which to do so 

versus the current one year. This will require a legislative change. We realize that 

some may impulsively draw several inferences onto this idea. Those inferences will 

likely be misplaced—our ambitious goal is to take every opportunity in which to 

bring efficiency to VA’s entire claims process so that it can better serve our Nation’s 

disabled veterans today and in the future. We must be open to change for such a 

goal to succeed. 

To put this issue into perspective, the average time it took the VA to receive a 

notice of disagreement (NOD) in 2008 was 41 days. In fact, 92,000 out of just over 

100,000 NODs were received within the first six months of 2008. 

This is also an opportunity to bolster certain statutory rights for which the law 

is currently silent. When amending the appellate period from one year to 180 days, 

Congress must include an appellate period extension clause and equitable tolling 

clause to the appropriate section of law concerning NODs. 

Specifically, we recommend changing the law so that an appellant may, upon request, extend his/her appellate period by six months beyond the initial six months. 

We also suggest an amendment to provide for equitable tolling of the appellate period in cases of mental or physical disability so significant to have prevented a VA 

64 

claimant from responding within the specified time. Again, the Social Security Administration has a generous good cause exemption that could apply here as well. 

If the appeal is not resolved, the VA will issue a Statement Of the Case with an 

amended VAF–9. The amendment will explain that evidence submitted after the appeal has been substantiated to the Board of Veterans Appeals (Board) will be forward directly to the Board and not considered by the regional office unless the appellant or his/her representative elects to have additional evidence considered by the 

Regional Office (RO). This opt-out clause merely reverses the standard process without removing any choice/right/etc. from an appellant. This change will result in 

drastically reduced appellant lengths, much less appellant confusion, and nearly 

100,000 reduced VA work hours by eliminating the requirement to issue most supplemental statements of the case. A legislative change, amending 38 U.S.C.A. 7104 

in a manner that would incorporate an automatic waiver of jurisdiction of Regional 

Office jurisdiction authorizing VA to allow the veteran to instead opt-out of his/her 

case being transferred to the BVA. 

The Appeals Management Center (AMC) is essentially a failure and should be disbanded. The AMC received nearly 20,000 remands from the Board in fiscal year 

(FY) 2008. By the end of FY 2008, the AMC had slightly over 21,000 remands on 

station. By the end of January 2009, they had approximately 22,600 remands on 

station. The AMC completed nearly 11,700 appeals, out of which 9,811 were returned to the Board, 89 were withdrawn, and only 1,789 were granted. In fact, 2,500 

appeals were returned to the AMC at least a second time because of further errors 

in carrying out the Board’s instructions, over a 25-percent error rate. This means 

the AMC’s error rate was higher than its grant rate. Such a poor record of performance cannot be allowed to exist anywhere in the VA claims process. Returning these 

cases to their respective jurisdictions will help ensure accountability, and most likely reduce the number of cases that proceed to the Board. 

The VA will require an additional ‘‘administrative team’’ that is not technically 

part of the claims or appeals process teams. This groups’ function will be to handle 

daily tasks required by VA but that are not necessarily part of the ‘‘claims process.’’ 

These tasks include subordinate or administrative functions such as complying with 

records’ requests under the Freedom of Information Act, serving as attorney fee coordinators, responding to informal claims, and many others that are administrative 

only. Currently, post- or pre-adjudication teams handle many functions for which 

they do not receive work credit and/or are otherwise not a required part of the 

claims process. Placing these functions under the responsibility of an administrative 

team dedicated solely for such tasks will free up resources that can be utilized specifically for claims processing, resulting in increased efficiency 

ADMINISTRATIVE/LEGISLATIVE CHANGES

1. Amend 38 U.S.C. § 5103A (b) to indicate that VA will assist a claimant in obtaining private medical records when such assistance is requested by the claimant 

on a form prescribed by the Secretary. This will pave the way for some of the 

changes discussed above. (Process time saved—30 to 90 days (estimate) on average; 

work hours saved—unknown but very significant.) 

2. Amend 38 U.S.C. §§ 5103, 5103A to allow the VA to on its own waive all VCAA 

requirements when it determines that evidence of record is sufficient to award all 

benefits sought. (Process time and work hours saved are unknown but very significant.) 

3.Title 38 U.S.C.A. § 5104(a) states, among other things, that when VA notifies 

a claimant of a decision, ‘‘[t]he notice shall include an explanation of the procedure 

for obtaining review of the decision.’’ 38 U.S.C.A. § 5104(a). An appeal election choice 

is part of that notice; therefore, the VA could modify 38 CFR § 3.2600 in order to 

facilitate the changes suggested above. (Process timed saved—60 days per appeal 

(estimate); work hours—approximately 50,000 (estimate).) 

4. Congress should decrease the period in which a VA claimant may submit a 

timely notice of disagreement to the VA following the issuance of a VA rating decision from one year to six months by amending 38 U.S.C. § 7105. 

5. Amend 38 U.S.C.A. § 7104 in a manner that would specifically incorporate an 

automatic waiver of RO jurisdiction for any evidence received by the VA, to include 

the Board, after an appeal has been certified to the Board following submission of 

a VA Form 9, unless the appellant or his/her representative expressly chooses not 

to waive such jurisdiction. (Process time saved—60 to 180 (estimate) days for affected appeals at local offices; up to 2 years for appeals otherwise subject to remand; 

work hours—in excess of 50,000 at local offices (estimate), unknown but significant 

at the Board) 

65 

6. Average total savings, 30 to 90 days pre-appellate stage. Average total savings 

for pre and post appellate cases (cumulative); 90 days minimum in most cases and 

as much as 90 to 330 days pre-remand. Potentially 3 years post-remand for affected 

cases. All of the above changes can and should be implemented as soon as possible. They 

will adapt to the current process and produce short term results. 

7. Disband the Appeals Management Center and return remanded appeals to 

original rating team. 

8. VA will be required to amend its claims form (VAF 21–526) as well as create 

and specify the form that must be used (post 21–526) for all re-opened and new formal claims. 

CONCLUSION

We are confident these recommendations, if enacted, will help streamline the protracted claims process and drastically reduce undue delays. Some of recommendations contained herein may appear novel and/or controversial at first; they may even 

draw criticism. However, such a response would be misdirected. These recommendations are carefully aimed at making efficient an inefficient process without sacrificing a single earned benefit. 

Mr. Chairman, we have provided your staff as well as the staffs of Chairman Filner, Ranking Member Buyer, and Ranking Member Burr, with a copy of the DAV’s 

proposal. 

Senator MURRAY. Thank you very much to all of you for your testimony. 

Mr. Bertoni, let me begin with you. You testified that the VA has 

not collected data to evaluate the impact of using the research centers to redistribute workload. We have heard that mentioned by 

several of our colleagues this morning with concerns about that. 

Can you tell us what measurement you would recommend the 

VA use to evaluate the effectiveness of these centers? 

Mr. BERTONI. Sure. I think critical to any of these processes is 

timeliness, accuracy, and consistency. I think it behooves any manager, as opposed to going out talking to the troops, trying to discuss 

issues on site—that is all important and good—but I think there 

is no substitute to the data to help management make good datadriven decisions. So, if you have a resource center and there are 

indications—and you do the analysis, and there are indications of 

problems in certain areas—you can make remedial interventions. 

To date, I do not believe that is occurring. I think even very recently, I do not believe there were any quality assurance reviews 

being conducted. So, that would be, first and foremost, very critical: 

what type of quality assurance reviews are being done; what is the 

MI data showing; and what do you do with that data going forward 

to make the interventions that need to be done? 

Senator MURRAY. OK. Thank you very much for that. 

Mr. Allen, you talked about the current structure for judicial review of veterans’ benefits, and it has two appellate levels: the Veterans Court and Federal Circuit, which you indicate increased 

delays and could be duplicative. 

You raised the option of removing the Federal Circuit from the 

structure of the veterans’ benefits determination process as one 

way of perhaps reducing some of the delays in this system. It did 

not sound like you were a hundred percent committed to that, but 

can you tell us why you sort of lean toward the Federal Circuit? 

Mr. ALLEN. Sure, Senator. Let me start out by saying that it 

seemed to me that when Congress created the Veterans Court, one 

of the things it was trying to do was create an independent body 

to review these issues outside of the VA and that that body would 

66 

be the expert in that area of the law. But since this was a new 

process, it provided for this second layer of review at the Federal 

Circuit. 

Now, I should say that the level of review at the Federal Circuit 

is not plenary; it is not total. The Federal Circuit does not have jurisdiction to review any matter of fact or, quite oddly, any application of law to fact. It, in theory, should only review pure questions 

of law. 

Now, it made perfect sense to structure the system, at least in 

my view at the time, like that. Today, I think that unbalanced. It 

is not worth having the Federal Circuit involved anymore. And I 

do not say that lightly because that is a major change. 

What it goes to is, what are the competing values that one 

wants. Because if the value that was absolutely top on the list was 

making sure that the maximum number of judges’ eyes looked at 

a case, figuring that that would reduce overall inaccuracy in decisions—well then, it might make sense to have this two-level court. 

To use a silly analogy, if your absolute, 100 percent, number 1 

value in a day is making sure that your pants do not fall down, 

wearing belt and suspenders makes perfect sense. It is not irrational because that is your value. But I think that for the Federal 

Circuit employment here, it is not having the maximum number of 

eyes look at a case because over time, having that second layer review has increased delay. I am sure for myself that it has not increased the quality of veterans’ law sufficiently to justify its current place in the system. 

Senator MURRAY. OK. 

Colonel Wilson, have you given any thought to a proposal to remove the Federal Circuit from the veterans’ benefits determination 

process and what that would mean? 

Colonel WILSON. No, ma’am, I have not, but will be glad to respond later. 

Senator MURRAY. If you could respond to the Committee, I would 

appreciate it. 

RESPONSE TO REQUEST ARISING DURING THE HEARING BY HON. PATTY MURRAY TO

JOHN L. WILSON, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS

Response. DAV is not in favor of removing the U.S. Court of Appeals for the Federal Circuit from the veteran’s benefits determination process. It is our view that 

this next level of appealate review is critical in ensuring cases on appeal are afforded proper and thorough consideration. This next level of review is vital because 

the U.S. Court for Veterans Claims has the authority to hear cases by judges sitting 

alone or in panels. No other U.S. appellate court permits one judge to decide appeals. The Court’s caseload does not prohibit each appeal being decided by a panel, 

yet this is typically the case for such appeals. As a result, a veteran’s status before 

the Court is diminished when compared to other citizens’ cases heard before other 

appellate courts. Status as a veteran should not reduce the quality of judicial review 

to which he or she is entitled. Therefore, we are not in favor of removing the Federal Circuit from this process. The Federal Circuit has limited jurisdiction to hear 

appeals from the Veterans Court and we do not believe removing the Federal Circuit from the appeals process is in the best interest of veterans. 

Senator MURRAY. Mr. Bertoni, would you have any input on 

that? 

Mr. BERTONI. I would say we have not looked into that or any 

considerations there. But I would say there would be a range of 

stakeholders that you would have to bring in. 

67 

Senator MURRAY. That is why you suggested commission—— 

Mr. BERTONI. Yes, that is right, Senator. 

Senator MURRAY. Senator Burr? 

Senator BURR. Mr. Allen, you are right. It is a major shift, but 

I think we are challenged to look at it in a different context. I was 

serious months ago when I suggested to the service organizations, 

let’s start with a blank sheet of paper, and come in and tell us how 

you design it in the 21st century. To the credit of DAV, they took 

on the task, and I am appreciative of that. 

You are right when you mention the word ‘‘commission.’’ What 

little bit of hair I had on the back of my neck did stand up. So let 

me ask, what additional information do you believe a commission 

would find that we do not have readily available to us today? 

Colonel WILSON. I thought of two ways to respond to that. The 

first and most direct is, I do not know what additional information 

the commission would have that you do not. I do not mean to refer 

back to Secretary Rumsfeld, however, there are things that we 

know we do not know. But more importantly, Senator—— 

Senator BURR. And that was sort of the basis of why you had the 

creation of the VA appellate process and the federal court. 

Colonel WILSON. Yes. 

Senator BURR. We did not know what we were going to run into. 

Colonel WILSON. Absolutely. And second, though, Senator, I 

think that the key—because I think this has been the key over 

time as various veterans’ benefits have been discussed—is it 

reaches a tipping point when enough of the relevant constituencies 

come together on an idea. I do not know whether something can 

truly be successful if it is, in fact, deemed to be imposed. 

Senator BURR. How long do you think a commission would need 

to take to accomplish the work that you perceive a commission 

should attempt to accomplish? 

Colonel WILSON. Part of it would be how broadly the commission 

should be structured. In my perfect world, I would say that it 

should actually be a commission that looks at the claims processing 

from cradle to grave. Because the situation we have now, some 

have described as a spider web which is not quite right, I think, 

because is an older spider web—the administrative process—on 

which a new spider web has been grafted. So, anything you do to 

one part is going to affect another. 

I think that now that we have a system that we have seen, if 

a commission starts from the beginning and looks at the end, because things that are done at claims processing at the administrative level are going to make a difference in the judicial review 

arena as well, and vice versa. So if the process were from beginning 

to end, I think this could probably be done, with commitment, in 

6 months. 

Senator BURR. You mentioned in a recent Law Review article, 

and I quote, ‘‘Perhaps the most significant shortcomings of the current system of veterans’ benefit determinations and their judicial 

review is the delay that veterans face.’’ I think many veterans 

would agree with the assessment you have made. 

How would you suggest we strike the right balance between 

speeding up the system and protecting the rights of veterans? 

68 

Colonel WILSON. That is a very tough question. At the hearing 

in February, I think, Senator Begich mentioned that there are sort 

of two generic approaches one can take. What I have been talking 

about is the big picture, beginning to end. But there are also targeted things that can be done in the system right now to help reduce delay. Some of them, Congress has done. Congress authorized 

new judgeships for the Veterans Court that are going to come into 

force in December 2009, in theory, to help reduce that workload. 

There are things being done at the Veterans Court to decrease 

delay and to increase efficiency. For example, the provision of technology, there are things being done with the system. 

But I think that we have to be honest about the fact that any 

reduction in, say, for example, the number of remands—which on 

a systemic scale is bad—is going to affect, in any given case, the 

fact that a veteran’s claim is going to stop somewhere on the road 

earlier than it would otherwise have done. And so, I think that we 

have to start with the assumption that that is the case. 

I think a lot of this can be enforcing what Congress has put in 

the statutes to make the VA process have the benefit of the doubt 

going to the veteran, and I think that that is a good point. 

Senator BURR. Mr. Bertoni, you are familiar with DAV’s recommendations. Am I correct? 

Mr. BERTONI. We have not done much analysis. I am vaguely familiar with what they recommended, yes, in terms of the—on the 

appellate—— 

Senator BURR. Are you aware of them enough to make a recommendation as to whether you think if we enacted them, they could 

save some of the delays that have been identified? 

Mr. BERTONI. No, but I could talk generically about reengineering processes and why that is a good thing, and then sort of segue 

into that. 

We always said that benefit processing organizations should be 

looking to reengineer their processes, to look for efficiencies in 

streamlining their processes. To the extent that you can do that, 

then you take those redesigned processes and build your automation systems around them. Then you actually have gained two 

efficiencies: your process is better and your automated system is 

better. 

To the extent that what they are proposing can eliminate steps 

and compress timeframes, we would think that would be possibly 

a good solution. The only concern that I have in the limited knowledge I have is that if you create a system where the paperwork is 

pushed up the flag pole to the next level, I think for a while you 

can be more efficient. But if the numbers start to come in at substantially higher levels, if they do not have the resources and 

staff and reengineered processes up there, you might get into a situation where you have just moved the problem to the next phase. 

We have seen that in other programs like the Social Security Administration. 

Senator BURR. Let me ask you, if you could—I cannot remember 

whether your comments have included an observation on the stimulus money that went to the VA ($150 million for 2,200 positions 

which expires in 14 months) to basically process 10,000 claims. And 

69 

I realize that is something that was pulled out of the sky on the 

run, but let me ask you. Good investment? 

Mr. BERTONI. Well, I have seen the plan. The number I have 

seen is 150 million and 1,500 employees, in written form. I believe 

it is 500 permanent and 1,000 temporary employees. Clearly, absorbing the staff at the rate at which they have been going is going 

to be a challenge. 

You mentioned the appeals resource centers. Anecdotally, we 

have heard some noise there, that absorbing staff and trying to 

find trained staff or get staff trained enough has caused some 

issues. So, I think the organization, since 2005, has been injecting 

a great number of staff in, and they have had some issues with 

training, deployment, and getting folks up to a proficient level. 

They have acknowledged it is going to lead to sort of a downturn 

in productivity for some time. However, it also shows that they are 

producing more. In the last couple of years, it looks like there is 

some good trending in the data. 

So, I think over time, if they can integrate staff into the processes in a timely manner and get them trained, I think you should 

be able to see some better training in the numbers. However, it is 

going to really depend on how they design their service delivery 

plan to make sure they have people processed and technology in 

the right places at the right time. It is not a matter of simply putting staff where you have space. You could really run into some 

real inequities in terms of experience in certain areas if they do it 

that way. 

Senator BURR. Thank you. 

Thank you, Madam Chair. 

Senator MURRAY. Thank you. 

I have one additional question, then I am going to turn it over 

to Senator Brown for his questions and comments and to hand him 

the gavel to chair the final time of this Committee. So, thank you 

for being here. 

Mr. Bertoni, I just wanted to ask you, as you know the DES pilot 

could be implemented worldwide. You have testified that the DOD 

and VA have not established how they will define success for that 

pilot. 

In your opinion, what would indicate success? 

Mr. BERTONI. I agree with the indicators of customer satisfaction 

and timeliness. I mean, I think those are two very important 

things. I do not think that VA and DOD have put enough thought 

in terms of what is the performance bar for accuracy and consistency. How much improvement in any of these elements do you 

want to see that would warrant worldwide implementation? 

I do not believe they are there. The last thing you want to do is 

have more decisions—quick decisions but bad decisions. So I do believe they need to get behind the accuracy and consistency ball and 

really design some criteria and targets to shoot for. 

Another concern we have is they are about to issue a report in 

August, and they are going to be rolling out or standing up at least 

several sites in the latter part of this pilot, which by their own designation are high risk or high risk of failure. They are very unique 

characteristics. It is unclear to us how they will be able to cutoff 

analysis to begin drafting this report and still incorporate the data 

70 

that those sites will yield to give you all a good sense of how effective this pilot is by August. 

Senator MURRAY. OK. Thank you very much for that input. 

Senator Brown, thank you for being here, and I turn the gavel 

over to you. 

STATEMENT OF HON. SHERROD BROWN, 

U.S. SENATOR FROM OHIO 

Senator Brown [presiding]. Thank you, Senator. I appreciate 

that. 

Thank you for joining us. I appreciate your pubic service, all of 

you, and your support for veterans. 

I represent Ohio, and Ohio has, if not unique, some more severe 

problems perhaps than the rest of the country. I want to get to 

something specific later on that way. 

But let me ask you—we all hear about this all the time. We hear 

about the bottleneck, we hear about the frustration that so many 

veterans have. Talk through with me where the real bottleneck is. 

Is it the initial claims process? Is it the appeals process? How do 

I better explain to veterans why there are 145,000 claims that are 

older than 125 days? Each of you, I would just like to hear your 

thoughts about it. 

Mr. Allen, you want to start? 

Mr. ALLEN. Sure, Senator. I think part of it depends on the individual veteran who comes up to you and where their claim is in 

the process. Starting at the back end: if you are a veteran who has 

been dissatisfied at the administrative level—which you have appealed now to the federal court system—you are going to be 

shocked by the way it works there because now you have a traditional adversary system in which there is time built in for the assembly of an appellate record and the debriefing that goes into 

that, where in that process itself is going to take 120 days if you 

are lucky, and then the case is right for decision. Then if you are 

still not happy, one part or the other, can appeal to the Federal 

Circuit. 

So, part of this is that the downside of judicial review is increased process. If you are at the administrative level, other people 

are going to be able to discuss this better than I would. But certainly, the statutory provision that allows for ‘‘one appeal to the 

Secretary’’—which is essentially the Board in this case—means 

that the board will remand matters for initial adjudication over 

and over and over again to the regional office to allow one appeal 

to the Secretary. 

So, in that sense, I do agree with Mr. Wilson that it would make 

sense in terms of delay to allow the veteran to waive that right, 

essentially; to allow the veteran to affirmatively say I know I have 

the right to have it remanded and considered first before the RO, 

but I will let the Board do it, because I think that is a big part 

of administrative delay. 

Senator BROWN. Mr. Bertoni? 

Mr. BERTONI. I do not think I could isolate any particular aspect 

of the process from front to back as a particular bottleneck. I think 

throughout the process there are program design inefficiencies that 

have slowed the way cases are processed through the system. 

71 

I do believe one key aspect or problem that starts very early on 

is the inability to develop the medical record and difficulties establishing service connection. I think that some of the initiatives that 

they are trying to do right now, in terms of benefits delivery at discharge, where 70 percent of departing servicemembers are leaving 

through these sites, where you could get early information on the 

medical history and the personnel record when it is most fresh, you 

can establish service connection more easily. 

So I do believe there are some things going on, especially the 

DES pilot, where those issues can be resolved early on. Certainly, 

there are program design issues throughout the system that are 

causing slow downs in processing, but I think that upfront development and being able to establish service connection can help 

throughout. 

Senator BROWN. So, Mr. Bertoni, you think that the meetings 

that Secretary Shinseki and Secretary Gates have had, the information technology to help IT, that they are working on, and the 

fact that the VA will have access to those records much earlier in 

the process—really, from the day that a man or woman signs up 

and joins the military—and that it will be more seamless and all, 

that should help in terms of this backlog? 

Mr. BERTONI. If you could create those interfaces, the ability to 

quickly share medical information in an online fashion, I think that 

is going a long way. But be mindful that it is not just a matter of 

taking a 400-page paper manual file, and evolving it into an electronic system. I do believe you need to build into that system the 

ability to query, to search, and to be able to pull out documents 

that you need specifically to reach a decision. 

So, it is a matter of having this electronic interface, and having 

it be a very user-friendly system that can help those who develop 

the claim also pull out the information they need. 

Senator BROWN. Colonel Wilson, your thoughts on my original 

question, about the bottleneck. 

Colonel WILSON. Yes. Thank you, Senator. It is certainly a complex issue, as well intended to. One of the issues is simply that 

when a veteran files a claim and appeals, during appeal, should it 

wish to provide additional information, supplemental statements of 

the case are created for each particular time that veteran submits 

information for that particular appeal. 

When I was in the field, I saw as many as 9, 10, and 12 supplemental statements of the case being issued for a veteran on their 

appeal because they had not bothered to talk to their representative and say what is going on here, ‘‘They have asked me for information and I sent it forward, and I have got another delay and another delay.’’ I have to caution them, please do not submit any 

more additional evidence. Stop, you have certainly submitted 

enough; it is duplicative as a matter of fact. They do not understand the process. So, this is one of the complications that is 

raised—a very complex issue. 

So, if you allow the veteran to instead opt out of this current 

process where the regional office has a review, opt 4, which I think 

is already the case, the Board of Veterans Appeals to have a review, you then, therefore, also eliminate the supplemental statement of the case. By the way the VA tracks as many as only up 

72 

to five SSOCs; there could be far more than that. As I indicated 

I have seen 9, 10, and 12 from certain veterans. 

When you figure that SSOC is 1 hour of work for a simple case, 

and you have thousands of them, you have thousands and tens of 

thousands of man-hours that you can save as a result. It moves the 

appeal process further, gets the appeal decision back to the veteran 

sooner. 

The other issue that you face is the VA working in the proper 

direction with its infrastructure issues in the IT arena. Moving to 

the electronic record, as is being talked about with the DOD and 

VA, is outstanding; absolutely the right way to go. It may likely 

take an additional investment of resources as was testified to before this Committee previously. 

So, those are a couple of the issues that cause the continued 

problems that the VA has in being responsive to the veteran in a 

timely manner. 

Senator BROWN. Thank you. 

From your comments, Colonel Wilson, about delay, and, Professor Allen, your comments about judicial review taking to 120 

days, just that alone, that process—there are some 145,000 claims, 

as we have discussed, over 125 days old. What is the right number 

of those, considering these factors? What should be our goal because of the slower judicial review process? What number should 

we be aiming at? What is fair to veterans? 

Your thoughts on that? 

Mr. ALLEN. Well, in terms of the judicial element, once you have 

sort of crossed the Rubicon and decide you want independent judicial review in an adversary setting, in a court system, there is only 

so much that can be done to reduce ‘‘delay.’’ 

Senator BROWN. So what is that number taking those out? 

Where should we be? 

Mr. ALLEN. This is not necessarily something that veterans want 

to hear, but I think, realistically at the appellate court level, the 

claims are being adjudicated at about the right speed if we want 

to maintain a traditional adversary system. There are things that 

can be done in certain cases that the court is doing, I understand— 

an aggressive mediation program—to try to get things resolved earlier. But, in terms of the speed to decision at the appellate court 

level, I think that that is about right. In fact, I think the Veterans 

Court produces decisions, on average, faster than other federal 

courts of appeals, but it is still a significant chunk of time. 

Senator BROWN. That’s little consolation to someone going 

through the process, but I understand that. 

Mr. ALLEN. That fundamentally is the tradeoff about whether or 

not this type of judicial review is worth the candle. I think it is, 

but that is also why in my response to Ranking Burr—— 

Senator BROWN. Can you estimate of the 145,000 how many of 

those are actually part of judicial review? 

Mr. ALLEN. None. None technically, at least not yet. Each year 

approximately 4,500 to 5,000—depending on the year—cases are 

appealed from the Board of Veterans Appeals to the Veterans 

Court. Last year, I think it was just under 4,200 cases that went 

to the Veterans Court. 

73 

Senator BROWN. Any comments from Colonel Wilson or Mr. 

Bertoni about that? 

Colonel WILSON. No, Senator. I could not offer a perspective on 

what the proper timeframe should be for that at this particular 

time. I would be glad to respond in writing, however. 

Senator BROWN. OK. 

RESPONSE TO REQUEST ARISING DURING THE HEARING BY HON. SHERROD BROWN TO

JOHN L. WILSON, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS

Response. In addressing speed of decisions by the Court and the proper timeframe, the primary emphasis should be on a quality decision. Quality decisions will 

ultimately drive timeliness and accuracy. The Courts should use the time necessary 

to provide quality decisions. 

Further, the Court could enhance the quality of its’ decisions if it would modify 

its current policy and decide all issues of law raised by an appellant and provide 

an opinion as to how the law affects the disability in question. When Congress 

passed the Veterans’ Judicial Review Act of 1988 (VJRA) and created the Court, it 

was granted the authority to decide all relevant questions of law and to hold unlawful and set aside or reverse any finding of material fact adverse to the claimant, 

which is clearly erroneous. Unfortunately, due to long delays in claims processing 

at the VA, it can take veterans years to get their appeals before the Court. 

The result is that the veteran must appeal to the Court a second time and, in 

some cases, a third or fourth time to obtain a decision on the merits of his or her 

appeal. It is DAV’s opinion that legislation should be enacted that would require the 

Court to decide each assignment of error made by an appellant in an appeal to the 

Court and to reverse any such errors found; and grant the Court the authority to 

modify or remand any Board decision found to contain any error or errors, that the 

authority to modify should include the power to order an award of benefits in appropriate cases, and that an appellant should be expressly permitted to waive confessions of error made by the appellee. 

The basis for this position is a matter of policy rather than object analysis however. The Court believes leaving appellants the added latitude of resubmitting an 

appeal on an undecided issue is beneficial to the veteran. When asked for the statistical analysis to support this position none could be provided. So, the Courts will 

continue their current practice of not deciding all issues based on policy only. 

An analysis of the Annual Reports for 2000–2009 finds a remand rate of 62.6% 

for 2008 and 60.5% for 2009. This calculation is based: on the total cases affirmed 

or dismissed in part, reversed/vacated & remanded in part; reversed/vacated & remanded; or remanded. In 2008, of the 4,446 cases decided, 2,787 were remanded resulting in a remand rate of 62.6%. In 2009, of the 4,379 cases decided, 2,651 were 

remanded resulting in a remand rate of 60.5%. 

It would seem the Courts and veterans would be better served by a reduced remand rate if all issues of law as they relate to the appeal in question were decided. 

Having the Court address all issues on appeal would, from the perspective of the 

veteran, also enhance the quality of decisions and likely improve the timeliness of 

decisions. 

Mr. BERTONI. I was just going to say, in terms of the initial 

claims, I do not know what the number is either, but I would look 

at what has been accomplished. If you look at the Benefits Delivery 

at Discharge program, their average is 2–3 months versus 6–7 

months for non-BDD claims. So, I think any veteran receiving a 

claim within 2–3 months would probably be pretty satisfied with 

that. 

As far as the appellate end, 639 days—21 months—I can say is 

probably too long. I do not know what the numbers should be. 

Senator BROWN. Veterans are not just frustrated but there’s the 

difficulty of survival for some number of veterans that are in this 

process, who have to wait and wait and wait. All that is pretty 

troubling of course. 

74 

I hear veterans often ask if there is a way that VA could provide 

some preliminary classification so that they could get some assistance while this process went forward—in those cases that, perhaps, 

are a little more obvious or a little simpler. 

Is there a way that the VA can define preliminary classification 

and move forward with that? 

Mr. BERTONI. Preliminary classification with—are we saying a 

temporary disability or—— 

Senator BROWN. Yes. 

Mr. BERTONI. I have heard folks make that point. The issue we 

have here, I think, in doing a preliminary classification is it could 

cause problems for both the administration and the veteran. 

Number 1, if you do that and 6 months down the road you finally 

do complete the case, or 2 years down the road, and you find that 

the veteran is not disabled or at a much lower disability rate, that 

person could potentially be slapped with a fairly high overpayment. 

Given the rules that VA has in terms of waiver, after some administrative and bureaucratic gyrations that amount would probably be waived. But now you are left with the VA or Federal Government having to eat that payment. So, that is one scenario. 

Senator BROWN. Is there a way of doing that in cases that you 

can reduce significant—and I apologize for going over, Senator 

Burr. Is there a way of doing that so that those cases which have 

a great deal more certainty, so that the likelihood of error will be 

very, very small? It is perhaps a price that the taxpayers and the 

VA pay for these overpayments, if you will, but you do it and you 

define it in a way with much more certainty so that overpayments 

are rare. 

Mr. BERTONI. There is. It is done in the Social Security Administration. It is called ‘‘compassion and allowances.’’ They are doing 

some of this in VA with some of the target subpopulations that 

they are looking to sort of expedite. These are cases most likely to 

be approved, so they are doing that. I do not know the range of 

subpopulations with the numbers, but that is a model. 

Senator BROWN. But it is done in a relatively small number of 

cases now, to your knowledge. 

Mr. BERTONI. I do not know the numbers, but it is not done on 

the macro level. 

Senator BROWN. From your examination of this from GAO, can 

you tell if you could expand it to a good many more veterans without a high rate of overpayment? 

Mr. BERTONI. That is part of what we are doing. This is ongoing 

work. Preliminarily I do not have that answer, but we are aware 

of several pilots that are ongoing where that is exactly the concept. 

These cases are good candidates for approval and they are on a 

fast-track basis. Whether they could find more or revise the criteria 

to bring more cases in, I do not know that right now, but it is 

something we are looking at. 

Senator BROWN. OK. Thank you. 

Senator Burr? 

Senator BURR. Thank you, Mr. Chairman. I was going to ask Mr. 

Wilson a couple of questions, but I am going to forego those and 

just make an observation. 

75 

As we have talked about the disability claims process, we have 

all sort of looked at the middle and the end and tried to point to 

all the things we think cause the delays. We have extensive debates about what the appropriate amount of time is. When do you 

restart the clock? I think that is what Mr. Wilson talked about 

with the new evidence. It restarted the clock, and this brought 

further delays. There was a point that it was not beneficial to 

veterans. 

Let me just suggest that I hope all of us might back up and possibly look at the beginning of the process—when the first interaction takes place—and ask ourselves if we put as much effort toward the re-training and re-tooling of our VA personnel and charge 

them more with slowing down the process of moving that claim forward until they are confident that all of the pertinent information 

that that claimant might need for the claim is there, and become 

a little more invested in each individual claimant, then I think, 

one, we would be able to then identify what we do not need, very 

easily, because there would not be this addition of new evidence. 

Somebody would be there helping them construct that file at the 

beginning. 

If, in fact, the medical information was not in it—you requested 

it of the veteran—and after a period of time you move the claim 

into the process without it, well, you have got a VA employee who 

knows that at some point this is going to bog down. This is just 

going to stop dead, and then it is going to set off all these little 

triggers. The VA at some point, as Mr. Wilson says, goes back to 

the veteran and says, well, we need this. They ask, was there 

somebody in the theater that saw this? As you build that case, that 

is where the delays come from. 

Now, I know I am probably suggesting something that is way too 

simple for us to accomplish, but I think that—I refer back to those 

commissions, and here is my frustration. I have seen us put commissions together to identify changes to big things; and sometimes 

we get little changes to big things, but we do not get big results. 

I think we have got to think about this process, about how we 

can change it tomorrow for veterans. I am not suggesting the only 

place we need to look that the beginning is, but I do not think that 

we can satisfactorily solve all of our problems without making sure 

at the earliest possible point we get all the information needed to 

make determinations. So, when I ask how do you find the right balance between the veterans’ rights and the speed of the process, it 

is having the most information to make an educated decision early 

in the process so that you know whether the individual is going to 

pursue it further, meaning to the appellate court, or, in fact, 

whether the veteran might look at the process up to that point and 

determine they have been treated fairly and now is the time to exit 

the system and let somebody else come in. 

It’s my personal observation, because I have been as focused as 

everybody else on having too much in the middle and too much at 

the end, on how many times we restart the clock, and whose responsibility is it to make sure that that does not happen too often. 

We have a habit of throwing the hot potato to somebody else. 

Maybe we can all agree that we have got to do a better job up 

front, slowing the process down, making sure we have all the inforVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6601 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
76 

mation; more importantly, making sure that the first interaction 

with the Veterans Administration is with somebody whose sole objective is to get the information they know that individual is going 

to need throughout the process. If we fall short after that, well, we 

will deal with it. I think we can do a much better job at the beginning because some of the things that we all refer to, quite frankly, 

are achievable at the earliest possible point in the process. 

I want to thank all three of our witnesses as well as the administration for being here today. I thank the Chair for his indulgence 

for my observations, and I look forward to hopefully progress on 

this in calendar year 2009. Thank you. 

Senator BROWN. Thank you, Senator Burr. 

We have a vote call in a couple of minutes, and I just really have 

one question that I would like each of you to explore before we 

wrap up. I would particularly like to thank Admiral Dunne and 

Mr. Koch for staying and listening to the questions. Witnesses 

often do not do that—listen to the next panel—and I thank you 

very much, both of you, for staying. 

I know this hearing is about claims processing, and we each have 

our stories about our own States. I want to ask you briefly about 

a related matter. Mr. Bertoni possibly could be the most helpful on 

this, but if others want to weigh in, that’s great. 

Ohio consistently receives some of the lowest disability compensation in the country year after year, and nobody quite understands why. I mean, our delays—the slowness of the processing 

may be worse in Ohio, and that is not really clear from information 

we have. But we do know we have some of the lowest disability 

compensation in the country year after year after year. 

I know it is partly demographics, but how much of this can be 

attributed to individual claims processing? Is there a structural 

issue with the Cleveland region that you can see, Mr. Bertoni? 

Mr. BERTONI. I do not know that answer. I think the one to get 

behind that would be VA. I know they have started a program, 

which I believe is called the Interrater Comparison Program, where 

they are basically taking a case in a particular area and having a 

number of raters examine it, rate the case, and see where there are 

breakdowns in terms of consistency or where there is inconsistency. 

So, I think that exercise is very important. To have that kind of 

analysis where you have three folks rate a like case with like impairments and see how far or how close they are in terms of the 

rating determination I think is a first step to sort of getting behind 

whether there is substantial variation that needs to be addressed. 

Senator BROWN. Anybody else want to—— 

Mr. BERTONI. They have just started to do this, I believe. 

Senator BROWN. So, a year from now we may know the answer 

to this? 

Mr. BERTONI. I think that is a question for VA, but I do not know 

how long that exercise will be going on. 

Senator BROWN. VA has never done anything like that. We have 

asked questions of them and tried to get answers on this, and they 

really do not seem to know the answer. This is the first time they 

have sort of approached that model to be able to determine people. 

Mr. BERTONI. I know the VA or the IG took a stab at this several 

years back, and I do not believe their analysis was conclusive eiVerDate Nov 24 2008 20:54 Jun 23, 2010 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 H:\111TH HEARINGS\072909.TXT SVETS PsN: PAULIN
77 

ther. But, again, I do know about this fairly recent experience. 

They are doing this analysis and, hopefully, it will yield some information relative to why there may be inconsistencies. 

Senator BROWN. Colonel Wilson, I am sure you have heard from 

DAV members in Ohio about this. Do you have any thoughts or 

have you been able to give them any insight into this? 

Colonel WILSON. No, sir, no specific insight on that particular location. I would offer that the various veterans service organizations 

have long contended that although the quantity of work is important—to move cases quickly—that quality of work must be a part 

of that process as well. 

We believe if you change the work credit system—I do not care 

where the location of the regional office is—work credit system 

changes to require accountability, both up and down for good work, 

take it away for work that is not as good, will improve the process 

for all, and eventually as well in Ohio. 

Senator BROWN. OK. 

Mr. Allen, any insight you might have? 

Mr. ALLEN. I do not know enough about that, Senator. 

Senator BROWN. OK. Well, thank you. 

Thank you all for your testimony, and thank you especially for 

your service to this Nation’s veterans. The Veterans’ Affairs Committee is adjourned. Thank you. 

[Whereupon, at 11:25 a.m., the Committee was adjourned.] 

(79) 

A P P E N D I X 

PREPARED STATEMENT OF ROBERT JACKSON, ASSISTANT DIRECTOR, NATIONAL

LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES

Mr. Chairman, Ranking Member Burr and Members of the Committee: Thank you 

for the opportunity to provide testimony before this Committee on VA disability 

compensation. The 1.8 million men and women of the Veterans of Foreign Wars of 

the U.S. appreciate the voice you give them at these important hearings. 

As we all know, over the past two years the VA has funded the hiring of hundreds 

of new rating specialists in order to reduce the growing backlog of veterans’ disability compensation claims. We also know that it takes at least two years for a rating specialist to be trained, and at least another year getting comfortable with the 

VA claims system to get to the point to where the rating specialist becomes somewhat proficient in assessing veterans claims. We note this because we believe it is 

important to understand that simply increasing the number of VA rating specialists 

will not significantly reduce the claims backlog in a fashion considered timely by 

this Committee, Veterans Service Organizations, and most importantly the very veterans this system was developed to serve. This is merely a starting point in order 

to advance our discussion to a self-evident truth: 

There is no quick fix to VBA... only the opportunity for steady and deliberate 

improvement. 

There has been a silent paradigm shift over the past 30 years. If for no other reason than judicial review, the Veterans Claims Assistance Act (VCAA) and the budgetary environment that exists today, it may be time to acknowledge that the VA 

cannot be staffed at such levels as will allow it to produce quality decisions in the 

same period those earlier generations of VA workers achieved. 

The converse of this may be to acknowledge that the better production and timeliness levels achieved in the 1950s and ‘60s may very well have been accomplished 

because there was less attention paid to procedural rights and that the VA may 

have exhibited a rather cavalier attitude when it came to interpreting the law and 

its own regulations. 

Whether you agree with either view of history, you have to admit the world in 

which the VA operates has changed and it may no longer be realistic to expect accurate benefit decisions in a short period of time. There are still things that can be 

done to improve production, reduce backlogs (although perhaps not at the rate we 

all would like to see) and ensure claims are completed with quality. 

PROVISIONAL CLAIMS PROCESSING SYSTEM

Within two years of the conclusion of World War II, more than 16 million service 

men and women were released from active duty. Millions filed claims with VA for 

compensation. Why wasn’t the VA overwhelmed? There are numerous answers to 

the question, including: 

• Veterans claimed fewer disabilities than at present. 

• There were no due process requirements in the law and VA procedures required 

little more than acknowledgement of a claim and notice of the final decision. 

• VA was not obligated to help veterans obtain private records 

• VA could and did make decisions after receipt of service medical records but before all records were received. When additional records were received, VA reviewed 

those records in context with other evidence of record and made a new decision. 

• VA frequently evaluated disabilities based on service discharge examinations. 

All of these facts allowed the VA to make claim decisions quickly. Reexaminations 

were frequent and allowed VA to increase or reduce evaluations as disabilities worsened or improved. 

80 

Today, claims development takes longer. Quite simply, Congress recognized that 

past procedures and practices by VA were not always veteran friendly, did not adequately tell veterans what was needed and often led to decisions based on less than 

all the available evidence. Decisions are longer because Congress decided that veterans should be told what evidence was considered and why benefits were denied 

or granted. Appeals take longer to resolve because of increased evidentiary and notice requirements, the introduction of an additional review level with Decision Review Officers and the need to satisfy all judicial mandates. 

The fact is there is nothing inherently wrong with any of these changes. Those 

decisions are needed to fix recognized problems and abuses. 

However, the question still remains; how do you devise a system that allows VA 

to make decisions rapidly without increasing mistakes, is not costly either to the 

veteran or the American people, and continues to provide veterans with the protections that have been built into the law over the past 60 years? 

Jerry Manar, VFW’s Deputy Director for National Veterans Service, along with 

four other retired VA alumni, has developed a process that incorporates the best 

practices of a post WWII claims system to make expedited provisional decisions 

based on existing records. This proposal, which calls for the creation of a test program entitled the Provisional Claims Processing Program, would grant benefits on 

limited information quickly but with quality. 

The Program would be limited to servicemembers leaving the Armed Forces or recently discharged veterans. An initial evaluation would be conducted based on existing evidence, and the veteran would have the opportunity to accept the provisional 

rating. If the veteran declines the provisional rating, the claim would be processed 

through the normal claims process. 

If the veteran accepts the provisional rating, full development, a VA examination 

and a new decision would be required four years after the initial provisional rating. 

Provisional decisions made under this program would have no precedent value and 

service connection for all disabilities, including any new condition the veteran chooses to place into contention, would be made during the review at the four-year point. 

This program would restore the rapid delivery of benefits based on current rating 

standards, while still maintaining veterans’ rights under a system of protections 

carefully crafted by Congress over the past 60 years. It should dramatically increase 

decisions on original claims while allowing the bulk of VA’s field staff to concentrate 

on resolving the existing backlog. 

More importantly, this program would provide a win for new veterans. In exchange for agreeing to wait for a final decision, they receive a provisional decision 

and benefits in a matter of weeks instead of more than six months. If properly 

structured the VA could fulfill the promise it made with the BDD program that a 

decision could be made prior to discharge. 

Further, veterans have the right to choose which program they participate in 

AFTER they know what the provisional decision awards. If they disagree with the 

provisional decision, they need not accept it. And, since they know that the current 

program may take six months or more to produce a decision, their conscious choice 

to accept the wait should reduce the number of complaints and consequent pressure 

on Congress. 

This proposal offers a viable short-term solution to the growing backlog of claims 

and we would hope the Congress would consider this proposal or some similar program as a means of assisting the VBA in improving the claims processing system. 

GETTING IT RIGHT THE FIRST TIME

We also believe some of the greatest benefits can be found by fixing the front end 

of the claims operation. Most court decisions today focus on procedural problems 

stemming from notice to claimants and development, or failures to properly develop 

evidence. The VCAA was created because VA would sometimes take shortcuts in the 

claims development period, failing to give claimants adequate notice of what they 

needed to produce to prove their claims. However, as we have seen since its passage, 

it is quite possible to become bogged down in the notice requirements while attempting to dot every ‘‘i’’ and cross every ‘‘t’’. 

We support the VCAA because we believe it helps level the playing field for veterans. The VA has the knowledge of what is required in order to grant or increase 

benefits to veterans. They are required to pass that knowledge on so that claimants 

know, too, and can focus their energies in obtaining the necessary evidence to perfect their claim. 

This is not rocket science. If a veteran claims service connection for the residuals 

of a knee injury, the VA can tell her that she needs to show that she has a disability 

of the knee now, that she injured the knee in service or something that happened 

81 

in service caused a knee problem and to provide VA with medical evidence that 

shows the current problem to be related to the event in service. These are the same 

three things that have always been required to prove service connection. 

The requirements for obtaining an increase in benefits are equally finite: a claimant must show that their service-connected disability has worsened sufficiently to 

obtain a higher evaluation. In order to obtain an increase for that knee problem, 

the veteran must show the existence of arthritis in the joint which limits motion 

or causes pain, or demonstrates instability in the joint. 

Again, this is not rocket science. Software could be developed that allows a VSR 

in a Pre-Determination team to simply answer a question on a computer screen concerning whether the claim is for service-connection or an increase and what the 

claimed condition is. Now, as you suspect, the computer can generate paragraph 

after paragraph explaining what is required and if the veteran is claiming 12 conditions then the letter can become quite long. Yet, if the object is to ensure that claimants have the information necessary to perfect their claims then it can be done with 

properly programmed computers. Further, software programs could be made available to claimants in a simple, easily accessed, public web site. Any curious veteran 

could enter the web site, answer a series of simple questions and receive detailed 

information on what is needed to obtain the benefit. 

UTILIZING TECHNOLOGY AS A TOOL TO CREATE EFFICIENCIES

We have testified before this Committee in the past, and continue to believe, that 

if VA takes advantage of the rapid advances in technology they will be able to create 

efficiencies that currently do not exist. For instance, the VA currently has thousands 

of all electronic claims files. These cases are largely Benefits Delivery at Discharge 

(BDD) cases and the electronic claims files offer VA a unique opportunity to create 

a separate office to handle all electronic claims, allowing the VA to experiment and 

create an environment unencumbered by paper files. Imagine the possibility of having two or three Rating VSR’s located in separate sections of a building reviewing 

one claims file and making decisions on different elements of the claim simultaneously. The efficiencies that such a system creates could be significant. 

We understand that VA has established a claims processing laboratory in Providence, RI to explore and develop these efficiencies. We welcome this effort and look 

forward to viewing the results of this work in the years to come. 

What about the millions of existing paper claim files? VA rightfully believes that 

copying these files would be cost prohibitive. We agree. However, VA receives thousands of requests each year for copies of claims files. Currently, each file is 

photocopied and sent to the claimant. What if each office was equipped with a scanner so that instead of photocopying the file, it is scanned. The claimant would still 

receive a paper copy of the file and at the same time, the VA would have yet another electronic record. 

Mr. Chairman, these suggestions and ideas, in and of themselves, will not solve 

the backlog, timeliness and quality issues plaguing the VA today. However, if adoption of these and similar proposals each result in steady and deliberate improvement, we believe the cumulative effect will be sufficient to achieve reductions in 

workload and improvements in quality and service to veterans, their families and 

survivors. 

Thank you for allowing the VFW to provide written testimony on this issue. 

ADDITIONAL SUBMISSION OF PROF. MICHAEL P. ALLEN, 

STETSON UNIVERSITY COLLEGE OF LAW, GULFPORT, FL 

82 


729apALL01.eps
83 


729apALL02.eps
84 


729apALL03.eps
85 


729apALL04.eps
86 


729apALL05.eps
87 


729apALL06.eps
88 


729apALL07.eps
89 


729apALL08.eps
90 


729apALL09.eps
91 


729apALL10.eps
92 


729apALL11.eps
93 


729apALL12.eps
94 


729apALL13.eps
95 


729apALL14.eps
96 


729apALL15.eps
97 


729apALL16.eps
98 


729apALL17.eps
99 


729apALL18.eps
100 


729apALL19.eps
101 


729apALL20.eps
102 


729apALL21.eps
103 


729apALL22.eps
104 


729apALL23.eps
105 


729apALL24.eps
106 


729apALL25.eps
107 


729apALL26.eps
108 


729apALL27.eps
109 


729apALL28.eps
110 


729apALL29.eps
111 


729apALL30.eps
112 


729apALL31.eps
113 


729apALL32.eps
114 


729apALL33.eps
115 


729apALL34.eps
116 


729apALL35.eps
117 


729apALL36.eps
118 


729apALL37.eps
119 


729apALL38.eps
120 


729apALL39.eps
121 


729apALL40.eps
122 


729apALL41.eps
123 


729apALL42.eps
124 


729apALL43.eps
125 


729apALL44.eps
126 


729apALL45.eps
127 


729apALL46.eps
128 


729apALL47.eps
129 


729apALL48.eps
130 


729apALL49.eps
131 


729apALL50.eps
132 


729apALL51.eps
133 


729apALL52.eps
134 


729apALL53.eps
135 


729apALL54.eps
136 


729apALL55.eps
137 


729apALL56.eps
138 


729apALL57.eps
139 


729apALL58.eps
140 


729apALL59.eps
141 


729apALL60.eps
142 


729apALL61.eps
143 


729apALL62.eps
144 


729apALL63.eps
145 


729apALL64.eps
146 


729apALL65.eps
147 


729apALL66.eps
148 


729apALL67.eps
149 


729apALL68.eps
150 


729apALL69.eps
151 


729apALL70.eps
152 


729apALL71.eps
153 


729apALL72.eps
154 


729apALL73.eps
155 


729apALL74.eps
156 


729apALL75.eps
157 


729apALL76.eps
158 


729apALL77.eps
159 


729apALL78.eps
160 


729apALL79.eps
161 


729apALL80.eps
162 


729apALL81.eps
163 


729apALL82.eps
164 


729apALL83.eps
165 


729apALL84.eps
166 


729apALL85.eps
167 

Æ 


729apALL86.eps