Changing the Game:

Disability Claims Process 2012

Compensation Service Thomas Murphy

Changing the Game:

Disability Claims Process 2012

Compensation Service Veterans Benefits Administration

Veterans Benefits Administration Compensation Service 810 Vermont Avenue Washington, DC 20420

Preface On behalf of the Director, Compensation Service, it is an honor to submit this report, Changing the Game: Disability Claims Process 2012. The proposals contained in this report do not represent current claims processing policy. They are not to be acted upon unless instructed by VBA leadership. In support of VAs ongoing efforts to improve claims processing timeliness and accuracy, these proposals are submitted by Compensation Service to VBA leadership as recommendations only. Such leadership may choose to act upon all, some, or none of these proposals. Further, VBA leadership may choose to pilot and/or amend any proposals as necessary. The recommendations in this report seek to inspire VA leadership that with proper focus and studious research on all mandates that drive our claims and appeals process, we can achieve the Secretarys strategic timeliness and accuracy targets. Further, we can achieve those targets while providing our Nations disabled Veterans with a benefits system that is simplified; streamlined; proactive; and dependable. Internal objective: To produce a leaner, more efficient claims process; one that is practical, reasonable, faster, and more accurate. A key endeavor is to eliminate unnecessary steps from the process, especially those that add little to no value. These proposals also eliminate some longstanding practices and functions that are outdated, labor intensive, and do not directly benefit disabled Veterans and their dependents. VA has made several well-intentioned improvements to the claims process, but some result in adjudicators doing more work with less output and decreased quality. These proposals purposely require adjudicators to do "less work" with fewer steps to follow. fewer functions to carry out. fewer letters to send By doing less of what adds no value, we produce an improved and more efficient claims process. Key Quotes by Team Members: "We're not shuffling the cards. we're changing the game. Lets not apologize for offering bold, aggressive, or even controversial changes to the process when, in fact, we're improving services to all Veterans and their dependents. A final analogy: Instead of trying to figure out how to win the game with the same players same rules. same conditions, we're changing the game by making new rules and adding more players. The resulta winning season for all players!

Table of Contents
Overview ..............................................................................................................................................5 Acronyms ............................................................................................................................................6 Executive Report.................................................................................................................................8 1 1.1 1.2 1.3 1.4 1.5 Statutory ............................................................................................................................ 15 Automatic waiver of regional office jurisdiction when VA receives new evidence for an appeal that has been certified to the Board of Veterans Appeals ....................................... 15 Eliminate of certain types of apportionments ...................................................................... 19 Authorize service-connected death burial allowance when DIC is established under the provisions of 38 U.S.C. 1318 ........................................................................................... 22 Amend 38 U.S.C. 5103 to provide flexibility to VA on when and in what format to issue the notice required by this section....................................................................................... 24 Amend 38 U.S.C. 5103A(b) to indicate that VA will assist a claimant in obtaining private medical records when a claimant, on a form prescribed by the Secretary, requests such assistance ........................................................................................................................... 32 Eliminate award reductions for certain Veterans that are hospitalized at VA expense, as stipulated in title 38 U.S.C. 5503...................................................................................... 37 Regulatory ......................................................................................................................... 40 2.1 2.2 2.3 2.4 2.5 Eliminate appeal election letter by providing such notice in the decision award letter rather than post notice of disagreement ........................................................................................ 40 Convert the local appellate process into a single-flow system using the DRO program as the model, thereby providing de novo review on all appeals............................................... 43 Eliminate the discretion found in 38 C.F.R. 3.326 when determining whether to accept private evidence for rating purposes (examination by exception) ....................................... 47 Amend 38 C.F.R. 3.159 to make clear that development will cease when VA can issue a favorable decision on the issue at hand.............................................................................. 50 Amend 38 C.F.R. 3.156 to allow VA to reopen claims based upon the submission of new evidence, rather than new and material evidence, by modifying the definition of material as it relates to reopening previously denied claims............................................................. 52 Amend VAs apportionment regulations.............................................................................. 58 Amend 38 C.F.R. 3.155(c) to mandate the use of VA Form 21-526EZ or alternate form. 61 Streamline VAs duty to notify claimants of information necessary to substantiate their claims by attaching the required notice on VA Forms 21-526, 21-526B, 21-526EZ, 21-8940, 21-527, 21-534, and 21-8640 ............................................................................................. 63 Amend 38 C.F.R. 3.155 to infer and award benefits for certain claims, instead of inviting the claim ............................................................................................................................. 66 Amend 38 C.F.R. 3.159 to address instances when private providers refuse to honor VA Form 21-4142 ..................................................................................................................... 68 Amend 38 C.F.R. 3.1600 (and other pertinent regulations) to streamline payment of burial claims for surviving spouses ............................................................................................... 72 M21 Manual or Other Policy/Procedures ........................................................................ 75 3.1 Intermediate ratings: reverse the current practice of prohibiting intermediate ratings that do not include at least one grant of benefits ............................................................................ 75

1.6 2

2.6 2.7 2.8

2.9 2.10 2.11 3

3.2 3.3 3.4 3.5 4 4.1 4.2 5 5.1 6 6.1 6.2 6.3

Allow VSRs to administratively award certain DIC awards and Dependents Educational Assistance (DEA)................................................................................................................ 79 Amend M21-1MRI.1.C.6.d by reducing the initial 30-day waiting period for private records to 15 days, and by removing the current 10-day waiting period .......................................... 84 Modify VA Form 21-4142 .................................................................................................... 87 VBA/VHA Joint Initiative to Increase Rating Efficiency ....................................................... 89 Training.............................................................................................................................. 91 Create a comprehensive training program designed to enforce the exam by exception mentality ............................................................................................................................. 91 Simplification of reasons and bases on VA Rating Decisions ........................................... 100 VSO Program................................................................................................................... 103 Create a project for cases not subject to VAs duty to notify or its duty to assist by leveraging assistance from VSOs ..................................................................................... 103 Internal Compensation Service Issues ......................................................................... 106 Streamline the Agent Orange exposure confirmation process.......................................... 106 Amend accuracy review procedures by adding a review element for claims processing timeliness ....................................................................................................................... 108 VA should require at least a quarterly meeting between the Policy and Quality Assurance staff for discussion of common errors to ensure consistent guidance to the field ............. 110

Appendix 1: Section 1.1.................................................................................................................. 112 Appendix 2: Section 1.2.................................................................................................................. 115 Appendix 3: Section 1.3.................................................................................................................. 119 Appendix 4: Section 1.6.................................................................................................................. 122 Appendix 5: Cycle Impact Matrix................................................................................................... 131

Overview Because of the unprecedented workload challenges faced by VA, these proposals seek to aggressively modify current VA practices that are outdated and/or inefficient. This will result in improved performance outcomes and service to Veterans and their family members. These recommendations will reduce cycle times, increase processing capacity, and decrease administrative costs. Compensation Service employees with in-depth experience and expertise identified substantive changes that will serve to streamline and increase the efficiency of the claims process. Many issues require legislative or regulatory changes. The table below illustrates some of the key changes and their estimated impact on the claims process and the agencys budget.
Issues Sec.
1.1

Subject
Waiver of RO jurisdiction Eliminate certain Apportionments SC Death Burial for DIC 1318 More flexibility on VCAA notices Engage claimant to obtain PTRs Eliminate Hospital Adjustments Include Appeal Election in Decision Package Attach VCAA Notices to Forms Simplification of Rating Decisions

Type of change
Statutory (HR 1484) Statutory Statutory

Improvement of timeliness (Approximate)

Appeals Resolution Time (1 year) ---

Impact (Annually) Increased Capacity FTE Cost equivalent (Opportunity Costs)

65,000 SOCs or ratings 35,000 dev. actions 3,253 Rating Decisions 111 (RVSR or DRO) ($11.8 M personal services) 22 (VSR) ($1.5 M personal services) (13 VSR, 5 RVSR) ($1.1 M personal services) --17(VSR) ($1.2 M personal services) 27 (CA) ($1.1 M personal services) 300 (VSR) ($18.8 M personal services) -116 DROs/ RVSRs

Other
$500K in paper and postage --

1.2 1.3

1.4 1.5 1.6 2.1

Statutory Statutory Statutory Regulatory

ADC (7 to 10 days) ADC (30 to 40 days) -Appeals (60 days) ADC (10 days) -ADC (2 months)

--27,000 dev. actions 150,000 CA actions 300,000 Dev actions 200,000 Decisions 203,000 Rating Decisions 362,000 + Development Actions 60,000 SOCs 150,000 CA Actions

180,000 deferred ratings --$500K in paper and postage $1.1 M in paper and postage

2.8 4.2

Manual Manual

-2.1 million in paper, printing, and postage Eliminates 180,000 Deferreds

Totals

Appeals Resolution Time (14 mo)

352 + VSRs

27 CAs Total Personal Services Cost $35.5 million

Acronyms Acronym ADC AMC ASPEN BDN BVA C&P CAPRI CAVC CFR CHAMPVA COWC CPI DBQ DEA DIC DoD DRO EP FDC FNOD FTE FY GOE HHS HIPPA JSRRC M21-1MR MAP-D NOD OFO OGC ORM P&T PA&I PMC PTF PTSD PTR Description Average Days to Complete Appeals Management Center Advanced Sites, Planning and Engineering Network Benefits Delivery Network Board of Veterans Appeals (Board) Compensation and Pension Service Compensation and Pension Record Interchange Court of Appeals for Veterans Claims Code of Federal Regulations (Code) Civilian Health and Medical Program of the Department of Veterans Affairs Committee on Waivers and Compromises Claims Process Improvement Disability Benefits Questionnaire Dependents Educational Assistance Dependency and Indemnity Compensation Department of Defense Decision Review Officer End Product Fully Developed Claim First Notice of Death Full Time Employee Fiscal Year General Operating Expenses Department of Health and Human Services Health Insurance Portability and Accountability Act Joint Services Records Research Center Adjudication Procedure Manual Modern Award Processing Development Notice of Disagreement Office of Field Operations Office of General Counsel Office of Resource Management Permanent and Total Office of Performance Analysis and Integrity Pension Management Center Patient Treatment File Posttraumatic Stress Disorder Private treatment record 6

Acronym RBA RO RTR RVSR SC SMH SOC SSOC STAR USB USC VA VACO VACOLS VAMC VARO VASRD VBA VBMS VCAA VHA VJRA VOR VONAPP VSO VSR VSSC WRS

Description Rating Board Automation Regional Office Ready to rate Rating Veterans Service Representative Service-Connected Standard Man Hour Statement of the Case Supplemental Statement of Case Systematic Technical Accuracy Review Under Secretary for Benefits United States Code Department of Veterans Affairs Veterans Affairs Central Office Veterans Appeals Control and Location System VA Medical Center Veterans Affairs Regional Office Veterans Affairs Schedule for Rating Disabilities Veterans Benefits Administration Veterans Benefits Management System Veterans Claims Assistance Act of 2000 Veterans Health Administration Veterans Judicial Review Act VETSNET Operations Reports Veterans Online Application Veteran Service Organization Veterans Service Representative VHA Support Service Center Work Rate Standard

Executive Report Statutory First-instance Board jurisdiction VA has requested that Congress amend 38 U.S.C. 7104 to incorporate an automatic waiver of RO jurisdiction for evidence received by the VA, to include the Board, with or after submission of a substantive appeal to the Board, unless the appellant or his/her representative expressly chooses not to waive such jurisdiction. A bill (H.R. 1484) passed the House and is currently in the Senate. This proposal will dramatically improve appeals resolution time by over one year. VBA will be able to redirect over 100 FTE to other critical appeals and/or rating workload by eliminating the need to complete over 60,000 SSOCs annually. Non-payroll (i.e., paper and postage) administrative cost equivalent could be approximately $500,000 the first year and up to $8.5 million for ten years. Elimination of certain types of apportionments VA requests that Congress amend 38 U.S.C. 5307 to eliminate apportionments, specifically the apportionments authorized to a Veterans spouse, child, or parent when the Veteran is in a government hospital, and more importantly, those apportionments authorized to a Veterans spouse when the spouse is not living with the Veteran. This proposal will eliminate a function that is complex, resource intensive, and subjective, and one best suited for family courts designed to resolve domestic issues. This proposal will eliminate over 10,000 claims from the non-rating inventory, thereby allowing VBA to redirect approximately 22 FTE to other critical rating workload. The GOE cost equivalent for 22 FTE is $1.5 million for the first year and $22.8 million over ten years. This increased administrative efficiency will further result in the completion of approximately 30,000 additional VSR actions per year. Amend SC burial for 1318 DIC VA requests that Congress amend title 38 U.S.C. 2307, to authorize the serviceconnected burial allowance when VA awards DIC under section 1318. This proposal will increase claims processing efficiency at all ROs. The increased administrative efficiency more than offsets the costs. The GOE cost equivalent is 18 FTE at $1 million for the first year and $16 million over 10 years, which exceeds the mandatory cost of this proposal of $7.3 million over ten years. Further, this will reduce the RVSR workload by at least 6,505 decisions a yearVA could produce an additional 3,252 rating claims per year.

Amend 38 USC 5103 VA requests that Congress amend section 5103 to allow VA flexibility in deciding how to best deliver the required VCAA notice. With more flexibility in how and when to issue notices, VA will significantly reduce cycle times. For example, by attaching notices to the claims applications, VA essentially initiates development before it receives a claim. This added flexibility will eliminate a very large number of VSR actions and will shorten development time by at least 30 days in many of cases. VA defers at least 200,000 cases per year due to inadequate/insufficient VCAA notice. This proposal could eliminate 90 percent of this inefficiency as well as increase efficiency in other areas, such as significantly reduced appellate remands to inadequate/insufficient VCAA notice. Amend 38 USC 5103A(b) VA requests that Congress amend 38 U.S.C. 5103A to provide VA authority to engage claimants in taking a more active role in claims development. This will allow VA to issue regulations with the intent to shorten the development time, which is currently the lengthiest cycle in the claims process. Empowering the claimant to take a more active role in the claims process will also result in better overall service to Veterans, thereby resulting in improved customer satisfaction. The average days awaiting evidence at the end of April 2011 was 131 days. This one cycle (out of six) currently exceeds the 125-day strategic target for processing rating claims. A significant portion of this delay is due to development for private treatment records. Through this proposal, VA can institute an aggressive but clear policy regarding procurement of records without causing harm to any Veteran. Eliminate hospital reductions VA requests that Congress amend 38 U.S.C. 5503 to eliminate award reductions for certain hospitalized Veterans. A cost-benefit analysis covering a 5-year period showed minimal benefits to the government. In fact, when considering the minimal financial benefits of the program combined with the labor and opportunity costs of 17 FTE that are required to process hospital reductions, the costs of the program outweigh the benefits. Furthermore, VA should consider the practical and moral ramifications of reducing benefits of some of our most disabled and/or needy Veterans. Regulatory Eliminate DRO election letter This proposal will amend 38 C.F.R. 3.2600 to provide DRO election rights with the decision award letter. This will create a significant increase in claims efficiency in the appellate process by preventing appeal-team members from having to issue appeal election letters. VA estimates over 27 FTE are required to send out election letters on the 170,000 NODs expected in FY 2011. The elimination of this extra step in the

appeals process will reduce the appellate processing time by 60 days in each effected appeal, and free up valuable resources for other critical appeals or claims processing functions. Create a single-flow appellate process VA will amend section 3.2600 to serve as the guiding regulation for a single-avenue appellate process. Under this proposal, ROs would execute a de novo review for all appeals received, which will result in more appeal resolutions earlier in the appeals process, as is contemplated by the authorizing statute at section 7105. The creation of a single flow system will eliminate the current confusion experienced by the claimant as he or she tries to determine which appeal route to take. By resolving more appealed cases locally and earlier in the appeals process, the number of total appeals proceeding to the Board will be significantly reduced. Remove discretion at 38 C.F.R. 3.326 VA will amend 38 C.F.R. 3.326 to require VA to accept a private opinion or examination report if VA determines that the report is otherwise adequate for adjudicating the claim. VA routinely requests medical examinations and/or opinions in cases where the claimant has already submitted medical evidence that is adequate for rating purposes. VA claimants desiring to secure their own medical evidence, including a fully informed medical opinion, are entitled by law to do so. If a claimant does secure adequate medical evidence, there is no need in practicality or in law for VA to seek its own evidence. Amending section 3.326 will result in improved timeliness and increased customer satisfaction. Amend 38 C.F.R. 3.159 regarding favorable awards VA will amend 38 C.F.R. 3.159 to make clear that when considering a claim for new or increased benefits, and VA receives evidence that complies with the requirements set forth in the applicable section of the Rating Schedule and otherwise supports a favorable decision, no further development must be undertaken. Such an amendment is consistent with the controlling statute, 38 U.S.C. 5103A, precedent decisions of the Court, and is in keeping with the non-adversarial, pro-claimant, Veteran-friendly, nature of VAs benefits delivery system. It further conforms and solidifies changes requested in other sections of this report. Amend 38 C.F.R. 3.156 regarding New & Material evidence This proposal will redefine the material component so that the threshold for reopening a previously denied claim is lower than the current standard, thereby allowing VA to adjudicate more of these cases on their merits. From the original VCAA notice, to the administrative and judicial appellate systems, the entire process of adjudicating new and material claims is inefficient and cumbersome. The complexity of these claims is demonstrated by the pre-adjudication analysis and the required VCAA notice that VA

10

must tailor to the reasons of the previous denial and the explanation of the type of evidence sufficient to reopen the claim. This is arguably the most complex notice requirement issued by ROs. This change will reduce the total number of decisions rendered by VA and will simplify the claims process for Veterans. Amend VAs apportionment regulations If Congress fails to enact the request to eliminate certain apportionments, then this proposal will amend VA regulations so that set statutory amounts are apportioned. This will authorize apportionments to the spouse and/or children at the statutory amount payable for eligible dependents without making hardship or income determinations, thereby bypassing the complex and time-consuming dual due process procedures normally associated with these issues. This change will reduce the workload and the amount of time spent on investigating the validity of apportionment claims and will therefore make the apportionment process more objective and fairer for all Veterans. Amend 38 C.F.R. 3.155(c) to mandate the use of VA Form 21-526EZ or alternate form This proposal seeks to mandate the use of VA Form 21-526EZ or alternate forms that VA uses for certain benefit claims. By mandating this form, (similar to the required 21526), VA is able to better communicate and collect the pertinent information needed from claimants up front, thereby avoiding confusion as to what specific issue has been claimed and whether treatment has been received for the claimed issue. By mandating the use of this or other forms, VA can significantly reduce development time. Amend 38 C.F.R. 3.159 to place the section-5103 notice on VA forms This proposal seeks to amend 38 C.F.R. 3.159 to attach required VCAA notices to VA forms. VAs adjudication procedures require VA to issue VCAA letters to claimants notifying them of information necessary to support their claims. By attaching VCAA notices to forms, VA will experience major improvements in claims processing timeliness and accuracy for all rating-related claims. This allows VA to essentially initiate development before the claim is received by VA instead of when the claim is nearly 2 months old. This will shorten the overall development time by eliminating VCAA letters and the required 30-day wait period in a large percentage of cases. Further, it will, eliminate at least 300,000 or more development actions that VSRs must perform once VA receives a claim. Amend 38 C.F.R. 3.155 to infer and award benefits for certain claims, instead of inviting the claim VA proposes to amend 38 C.F.R. 3.155 to expressly allow VA to infer and award benefits in specific circumstances. This would represent a reversal of the current policy that directs employees to invite claims for certain disabilities, (e.g., when a RVSR notices a presumptive disability in a qualified Veterans record). This proposal would

11

provide benefits to Veterans much faster and reduce incoming claims by as much as 80,000 per year. Addressing private medical provider refusal to honor VA Form 21-4142 This proposal will amend 38 C.F.R. 3.159(c)(1) regarding VAs policy when a provider refuses to provide private records identified by a claimant on a VA Form 21-4142. VA requires this policy based on the frequency by which custodians refuse to honor VBAs medical release form and the significant claims delays based on such refusal. Custodians refuse to honor VAs release form because of a multitude of reasons to include, but not limited to: 1) they perceive the form lacks HIPPA compliance, 2) the request is not on their own form, and 3) they believe the form does not conform to certain State laws. In such examples described above, any future efforts to obtain records from providers would inevitably be unfruitful. Therefore, a clear policy to address instances when custodians refuse to honor VBAs release form is needed. Amend 38 C.F.R. 3.1600 to streamline burial claims This proposal will amend 38 C.F.R. 3.1600 and other pertinent regulations to allow VA to automate burial payments at a flat rate for surviving spouses. This payment would apply to nonservice and service connected burial allowances, and plot allowances. These amendments will streamline the burial claims process for a significant portion of the burial claims received by VA. More importantly, it will allow VA to improve the level of service provided to surviving spouses who are entitled to burial benefits. M21 Manual or Other Policy/Procedures Reverse the practice regarding deferrals/denials This proposal will reverse the current policy of RVSRs only issuing intermediate ratings of one or more grants. Under current VA procedures, RVSRs grant benefits at the earliest possible point in the claims process. The proposal does not negate VAs policy to expedite grants of benefits through intermediate ratings; instead, it merely refines the current practice. Specifically, this would allow RVSRs to produce intermediate ratings that include denials only, as well as grants, as long as the evidence is sufficient to decide those issues. This new approach will ultimately diminish the time it takes to finally address the remaining issues once the required development is complete. Admin DIC awards VA will implement internal changes to allow VSRs to administratively award certain DIC benefits that are currently awarded by a formal rating decision. This will free up more RVSRs to focus on disability claims and enhance the overall efficiency of the claims process. Procedural changes to M21-1MR and a national training initiative will be required for implementation of this proposal.

12

This 3-part proposal will eliminate nearly 30,000 referrals to the rating board per year, thereby allowing approximately 22 RVSRs to be redirected to other critical rating workload. This increased administrative efficiency will result in the completion of an additional 15,000 disability rating claims per year nationally. Reduce private treatment record development time This proposal will modify waiting periods to allow 15 days, instead of 30, for a response to VAs initial request for private medical records. Further, this proposal would require VA to send a second request after the initial 15 days, that VA will continue processing the case as soon as the second request is sent rather than waiting for a specified period of time (currently 10 days). Allowing VA to continue processing claims earlier is critical to achieving the 125-day goal for rating-related claims. Modify VA Form 21-4142 This proposal will modify VA Form 21-4142 to enhance the effectiveness of obtaining private medical evidence in support of disability claims. This form is useful in that it allows VA to obtain private medical evidence, but it has been the source of much confusion and claim processing delays. The modification of VA Form 21-4142 will enhance VAs ability to meet the timeliness strategic target of 125 days. By improving the release form so that Veterans understand it better and by modifying the language to fully comply with HIPPA requirements, VBA reduces the time it takes to develop a significant number of claims that are otherwise lingering in the claims process. VBA/VHA Joint Initiative to Increase Rating Efficiency A joint initiative between VBA and VHA will increase rating efficiency by modifying the content of and better utilizing VA medical treatment reports in the rating process. Further, the value of VBAs Disability Benefits Questionnaires will be maximized in the rating process by requiring VA treating physicians to complete them periodically. Training Exam by exception VA will create a nationwide training program designed to assist VSRs/RVSRs in using sound judgment based on legal authority when to request claims-related VA examinations and when no such examination is necessary. Simplification of reasons and bases on VA Rating Decisions This proposal will simplify and streamline VA rating decisions while increasing overall rating quality, productivity, and customer satisfaction. This is critical to VBAs efforts to

13

reduce the national inventory of rating-related claims, and improve rating timeliness and accuracy. The goal of this initiative is to increase individual rating productivity by case per day per RVSR. This would result in the completion of approximately 200,000 additional rating decisions per year. (2000 Raters X .5 = 1000 Ratings per day X 197 (standard number of workdays per year) = 197,000 additional Ratings per year). VSO Program Project for Ready-to-Rate cases involving VSOs Because of inherent limitations imposed by the CPI model of claims processing, VA has notable difficulty in establishing processes for employees involved in the earliest stages of claims processing to identify claims that warrant an immediate favorable decision. VA should therefore enter into an agreement with VSOs to assist with such a project. By establishing a structured process with defined parameters targeted at specific types of cases rather than a broad range of cases, VA can create an easy-to-manage process that ensures success in leveraging VSO assistance. Internal Compensation Service Issues Streamline the Agent Orange exposure confirmation process This proposal seeks to modify procedures in the M21-1MR to streamline the process of verifying or confirming herbicide exposure when a Veteran claims a disability due to exposure to Agent Orange outside of Vietnam. Because ROs will be equipped with the knowledge and necessary tools to perform this function, it will eliminate the need for a formal request to VACO and thereby increase the overall claims processing efficiency. Add a timeliness error measure As a means to measure and ensure compliance with the proposals contained within this claims processing plan, we propose that a timeliness element be added to local and national quality reviews. VA will list specific items as part of the checklist agenda, so that timeliness errors are objective and clearly linked to the unnecessary delay of a claim. Developing a new timeliness element is critical in VBA achieving the strategic target of completing all rating claims in 125 days. Quarterly meeting between the Policy and Quality Assurance staff It is proposed that a meeting between the Policy and Quality Assurance Staff take place on a quarterly basis. Although there is long history of collaboration between the various staffs within Compensation Service, a higher level of collaboration is needed between these staffs to ensure consistency of guidance provided to field stations.

14

1 Statutory
1.1 Automatic waiver of regional office jurisdiction when VA receives new evidence for an appeal that has been certified to the Board of Veterans Appeals

Introduction VA has requested that Congress amend 38 U.S.C. 7104 to incorporate an automatic waiver of RO jurisdiction for any evidence received by the VA, to include the Board, with or after submission of a substantive appeal to the Board, unless the appellant or his/her representative expressly chooses not to waive such jurisdiction. This request was part of the Secretarys legislative package sent to Congress on May 26, 2010. Legislation is currently pending in Congress for this proposal. A bill (H.R. 1484) passed the House and is currently in the Senate. This proposal could dramatically improve appeals resolution time by over one year. The GOE cost equivalent could be over 100 FTE,1 thereby allowing VBA to redirect these FTE to other critical appeals and/or rating workload. By eliminating the need to complete over 60,000 SSOCs annually, VBA can expect significant improvements in Form 9 pending timeliness (443 days at end of April 2011) since Appeals Team members can readily certify cases to BVA even when evidence submitted with or after the VA Form 9. Because of the increased capacity, the Notice of Disagreement inventory of 137,534 and NOD pending timeliness of 273 days (at end of April 2011) would also be positively affected by this proposal. Non-payroll (i.e., paper and postage) administrative cost equivalent could be approximately $500,000 the first year and up to $8.5 million for ten years. See Appendix 1 for a cost benefit analysis. Background If an appellant submits new evidence or information with, or following, the substantive appeal, (or any time after the initial SOC while the appeal is active) such as records from recent medical treatment or evaluations, the local VA office prepares an SSOC, which is similar to the SOC, but addresses the new information or evidence submitted. VA must then give the appellant an additional 30 days to respond (with any additional evidence, for example) following the issuance of an SSOC. If the appellant submits other evidence, regardless of its content, VA must issue another SSOC and another 30 days must pass before VA can send the appeal to the Board. In many cases, this process is repeated multiple times before a case reaches the Board. In many of those cases, appellants are simply unaware that they are preventing their appeal from reaching the Board.

GOE/Administrative Cost Equivalent: The amount of additional GOE funding or additional FTE required to equal the efficiency realized by a proposal/recommendation.

15

VAROs are not supposed to submit a case to the Board before they have rendered a decision on all evidence in the file. This restriction stems from 38 U.S.C. 7104, which has been interpreted to mean that the Board is primarily an appellate tribunal and that consideration of additional evidence in the first instance would violate section 7104 and denies an appellant one review on appeal to the Secretary. 38 U.S.C.A. 7104(a) (West 2002 & Supp. 2007); see Disabled Am. Veterans v. Secy of Veterans Affairs, 327 F.3d 1339, 1346 (Fed. Cir. 2003). These procedures force ROs to repeatedly issue SSOCs in many cases, which merely lengthen the appeal, frustrates VA, and confuses appellants. The problem does not end there. If an appellant submits new evidence once the case is at the Board, or if the RO submits a case to the Board with new evidence attached, the Board is prohibited from rendering a decision on the case and is forced to remand the appeal (usually to the AMC), if for no other reason but for VA to issue an SSOC. Notwithstanding the above, an appellant can choose to waive the ROs jurisdiction of evidence received by VA after a case has been certified to the Board by submitting a written waiver of RO jurisdiction. In the case of an appeal before the VARO, this results in VA not having to issue an SSOC concerning the newly submitted evidence. In the case of an appeal before the Board, it results in not requiring the Board to remand the case solely to issue an SSOC. Justification The Board amended its regulations in 2004 so that it could solicit waivers directly from appellants in those cases where an appellant or representative submits evidence without a waiver. 38 C.F.R. 20.1304(c); see 69 Fed. Reg. 53,807 (Sep. 3, 2004). This has helped to avoid some unnecessary remands. Nonetheless, the Board still remanded 2,190 cases in 2010 just to issue an SSOC. The frustrating reality of this situation is that issuing an SSOC may only consume a few hours of work from an RVSR, but the case may nonetheless remain at the AMC for up to the next two years while the VA completes that work. Statistical data shows that appeals represent a significant amount of VAs workload. For example, appellants filed 57,925 formal appeals (submission of VA Form 9) in FY 2010 compared with 44,337 formal appeals in FY 2007. The BVA in turn issued 49,127 decisions in FY 2010. These numbers are exclusive to appeals at the Board and do not include the substantial number of appeals processed by the appeals teams in VAROs and the AMC. VBA actually issued 65,407 SSOCs in FY 2009. Because VA estimates that it may receive a total of 170,000 initial appeals in 2011, the number of SSOCs is sure to increase equivalently. The 2009 number does not include cases wherein the appellant responded to the Boards initiation of a request for waiver of RO jurisdiction, thereby eliminating the requirement for a remand for VBA to issue an SSOC.

16

The average number of days it took to resolve appeals, by either VBA or the Board, was 657 days in FY 2006 and 886 days in FY 2010.2 This number, however, is deceptive, as it represents many appeals resolved at the RO level very early into the process. The actual numbers show a less attractive picture. According the FY 2007 and 2010 Report of the Chairman, Board of Veterans Appeals, a breakdown of processing time between steps in the appellate process is as follows: Cycle Interval NOD to receipt of SOC SOC to receipt of VA Form 9 VA Form 9 to cert at the Board Certified appeal to Board decision Average Remand Time FY 2007 213 44 531 273 FY 2010 243 42 609 212 493 Responsible Party VARO Appellant VARO Board VARO

Total 1,061 days from NOD to Board decision in 2007 and 1,106 days in 2010many are much longer. The function that should conceivably take the least amount of time actually took the largest amount of timereceipt of VA Form 9 to certification to the Board. The reason for this lengthy time VA spends on a relatively simple task is in large part the result of issuing multiple SSOCs. Considerations This change will drastically reduce the number of SSOCs issued by ROs, thereby allowing VA to redirect more personnel to other critical missions. RO will be able to certify cases to the Board much faster than currently possible, thereby significantly reducing the total appellate period. Considerable confusion on the part of appellants will be simplified by transferring their cases to the Board when they ask VA to do so. Many cases linger at ROs for months to years while the appellant believes the Board already has possession of the case. Appellants and/or their representatives will still be able to ask for RO consideration when they believe that new evidence may affect the outcome of the appeal. Therefore, no harm to claimants will occur.
2

Note: Appeals resolution time is a joint BVA-VBA measure of time from receipt of notice of disagreement by VBA to final decision by VBA or BVA. Remands are not considered to be final decisions in this measure. Also not included are cases returned as a result of a remand by the U.S. Court of Appeals for Veterans Claims.

17

VA will reduce its administrative costs, i.e., paper and postage, by $500,000 the first year and by $8.5 million over 10 years. The Board will reduce its remand rate by approximately 2,000 cases annually because they will have first instance jurisdiction over the evidence. Further, the personnel they currently use for soliciting RO jurisdiction waivers can be redirected to other critical missions.

18

1.2

Eliminate of certain types of apportionments

Introduction VA should seek for Congress to amend 38 U.S.C. 5307 to eliminate certain apportionments, specifically the apportionments authorized to the Veterans spouse, child, or dependent parent when the Veteran is in a government hospital, and more importantly, those apportionments authorized to a Veterans spouse when the spouse does not live with the Veteran. This proposal will modernize VAs apportionment policies and essentially eliminate a function that is complex, resource intensive, and subjective, and one that is best suited for family courts that are designed to resolve these types of domestic issues. This proposal will eliminate over 10,000 claims from the non-rating inventory, thereby allowing VBA to redirect approximately 22 FTE (required to complete apportionment claims nationally) to other critical rating workload. The GOE cost equivalent for 22 FTE is $1.5 million for the first year and $22.8 million over ten years. This increased administrative efficiency will further result in the completion of approximately 30,000 additional VSR actions per year, (e.g., development of 30,000 rating claims). Nonrating ADC will also improve by eliminating apportionments since the ADC for this category of claims is significantly higher than other non-rating claims. See Appendix 2 for a cost benefit analysis. Statutory Changes Required VA should seek for Congress to amend 38 U.S.C. 5307(a)(1) and (a)(2) to eliminate certain apportionments of compensation or pension benefits to a Veterans spouse or child and to amend 38 U.S.C. 5313(b)(1) to conform to amendment of 38 U.S.C. 5307(a)(1) and (a)(2). VA seeks to repeal subsections (a)(1) and (a)(2) from 38 U.S.C. 5307. Subsection (a)(1) provides that a Veterans benefit payments may be apportioned to the Veterans spouse, child, or dependent parent when the Veteran is hospitalized in a government hospital. Subsection (a)(2) provides that all or part of a Veterans compensation or pension may be apportioned to a Veterans spouse or child as prescribed by the Secretary when the spouse does not live with the Veteran, or the child(ren) are not in the custody of the Veteran. An amendment 38 U.S.C. 5313(b)(1) is necessary to conform to the amendment of 38 U.S.C. 5307(a)(1) and (a)(2) by replacing the language under the same terms and conditions as are provided under section 5307 of this title with as prescribed by the Secretary. Background Title 38 U.S.C. 5307(a)(1) provides that a Veterans benefit payments may be apportioned to the Veterans spouse, child, or dependent parent when the Veteran is hospitalized in a government hospital. The origin of this provision indicates that

19

Congress believed Veterans in hospitals were incapable of handling their affairs. This paragraph is obsolete and unnecessary. A fiduciary may be established for any Veteran who is unable to manage his or her financial affairs due to a physical or mental condition. Because of these reasons, apportionments under the authority of paragraph (a)(1) are unnecessary and represent an out-dated policy. The advent of joint spousal bank accounts also makes this policy out of date. 38 U.S.C. 5307(a)(2) provides that all or part of a Veterans compensation or pension may be apportioned to a Veterans spouse or child as prescribed by the Secretary when the spouse and child do not live with the Veteran. Developments in states laws place family courts in the best position to handle such disputes. VA adjudicates apportionment claims by first gathering financial information from the Veteran receiving benefits and from the person claiming an apportionment. The decision-maker examines the financial information and decides the benefit amount, if any, to apportion. If an apportionment is warranted, then the Veterans monthly benefit is reduced. The proper due process notice must also be provided to the beneficiary prior to rendering the final decision. In the course of providing due process, VA must afford the Veteran appellate rights. Appeals normally follow in cases wherein VA involuntarily apportions a Veterans benefits as a result of the apportionment claim. Justification The need for VA involvement in determining if and how much monetary support a Veteran pays to a spouse and/or child has greatly diminished over the years due to the prevalence of state family courts. Pursuant to a U.S. Supreme Court decision, state courts may consider the amount of a Veterans disability compensation and order a Veteran to use his or her disability compensation to satisfy alimony or child support obligations. See Rose v. Rose, 481 U.S. 619, 1987. Family courts and other various services that exist today are specially designed and better positioned to adjudicate these types of domestic issues. Additionally, the enactment of various federal laws curtails the need for VA involvement (e.g., Child Support Recovery Act of 1992 and Deadbeat Parent Punishment Act of 1998, both of which establish federal felony penalties for the failure to pay child support). Furthermore, this section of law places VA in the untenable position of considering the needs of a Veteran secondary to those of the person who files a claim for apportionment, usually from an estranged spouse. Such a position is inapposite to VAs statutory mandate to provide Veterans with a pro-claimant, Veteran-friendly, nonadversarial framework. For example, VA may apportion a Veterans benefits despite his/her ability to provide evidence of compliance with court-ordered child support or alimony if, through due process, the person claiming an apportionment of the Veterans benefits can prove a need beyond that set by the court order. No law should require VA to arbitrate such a dispute.

20

Because of existing family courts and various state and Federal provisions designed to resolve issues concerning spousal and child support, and due to the length of time, complexity, and subjectivity involved in processing apportionment claims, VA should seek to eliminate apportionment function described herein from the Compensation and Pension program. This policy is out of date and is inapposite to VAs statutory mandate to provide Veterans with a pro-claimant, Veteran-friendly, non-adversarial framework. By eliminating this function, VA will free up valuable resources to address VAs rising inventory of disability claims. Considerations VA will no longer be seen as acting against the Veteran in cases of spousal disputes. State courts will have the jurisdiction that is rightfully theirs. This proposal will eliminate over 10,000 of the most complex and time consuming VSR actions annually and approximately 500 Board decisions annually. Because it is estimated that the opportunity cost for 1 apportionment claim is 3 rating development actions, it is estimated that over 30,000 additional development actions could be taken each year if apportionments are eliminated. VA will still be able to apportion benefits where other needs arise, such as when a Veteran is incarcerated, or in the case of minor children. Furthermore, because of the negative perception of apportionment cases, this proposal is expected to increase morale in the Veterans Service Centers. Comment from VAs Office of General Counsel: We note further that VA potentially may meet the objectives of this proposal without legislation. Section 5307(a) gives VA wide discretion over the apportionments it authorizes, i.e., benefits may be apportioned as may be prescribed by the Secretary. We feel the Veterans Benefits Administration could, consistent with the statute, amend its regulations to provide that VA will not make apportionments under 5307(a)(1) and (a)(2). Although there would be a risk of judicial challenge to such a regulation, we believe there would be reasonable grounds for defending it as a justified exercise of VAs discretion based on the considerations outlined in your proposal. Alternatively, VA could amend its regulations to provide that it will grant apportionments in only very limited circumstances, such as cases involving extreme hardship or cases in which a state has issued a support award.

21

1.3

Authorize service-connected death burial allowance when DIC is established under the provisions of 38 U.S.C. 1318

Introduction This proposal would amend 38 U.S.C. 2307, to authorize the service-connected death burial allowance when DIC is granted under section 1318 in the same manner as if the Veterans death were service-connected under the provisions of 38 U.S.C. 1311. This proposal will increase claims processing efficiency at ROs. Although there is a slight benefit entitlement costs associated with this proposal, the increased administrative efficiency more than offsets the costs. The GOE cost equivalent is 18 FTE at $1 million for the first year and $16 million over 10 years, which exceeds the mandatory cost of this proposal of only $7.3 million over ten years. Further, the RVSR workload could be reduced by at least 6,505 decisions a year. By redirecting these FTE, VBA would potentially produce an additional 3,252 rating claims per year. If enacted, VA would implement a procedural change to allow VSRs to administratively award DIC under section 1318 when applicable. Due to this proposed procedural change, issuing a formal DIC rating for cause of death in these instances would be merely duplicative and therefore considered a moot issue. This proposal is closely related and overlaps to some extent the proposal contained in section 3.2. See Appendix 3 for a cost benefit analysis. OGC indicated that this proposal is legally sound and will accomplish its objectives. Background Title 38 U.S.C. 2307 (38 C.F.R. 3.1600(a)) states the following: In any case in which a Veteran dies as the result of a service-connected disability or disabilities, the Secretary, upon the request of the survivors of such Veteran, shall pay the burial and funeral expenses incurred in connection with the death of the Veteran in an amount not exceeding the greater of (1) $2,000, or (2) the amount authorized to be paid under section 8134(a) of title 5 in the case of a Federal employee whose death occurs as the result of an injury sustained in the performance of duty. Funeral and burial benefits provided under this section shall be in lieu of any benefits authorized under sections 2302 and 2303(a)(1) and (b) of this title. Under 38 U.S.C. 1318, VA is authorized to pay DIC to certain survivors of Veterans whose death was not caused by service-connected disability (ies) in the same manner as if the death were service-connected, if a Veteran was in receipt of, or entitled to

22

receive, disability compensation for a service-connected disability which was totally disabling for certain specified time periods. Entitlement to DIC under section 1318 does not, however, establish entitlement to the same level of burial benefits as a Veteran who, under section 1311, dies because of a service-connected disability. This amendment would authorize the burial allowance at the service connected death rate when DIC is established under the provisions of section 1318. Justification In authorizing the burial allowance at the service connected death rate when DIC under section 1318 is granted, VA is recognizing the significant impact of the Veterans service-connected total disability in terms of level of severity, duration, and impairment in the Veterans ability during his lifetime to provide for his or her family members. The uniformity in benefit payment amounts for DIC under sections 1318 and 1310, both currently $1,154 per month, demonstrates an equal level of recognition by the government to these categories of beneficiaries. However, a perceived incongruous result occurs when survivors of these two beneficiary categories receive different amounts for reimbursement of burial and funeral expenses. Amending section 2307 to ensure these two categories of survivors receive the same burial benefit amount is fair, equitable, and commensurate with the payment structure under the DIC program. A significant factor in amending section 2307 is the increased efficiency realized in the claims process. Currently, if a Veteran was permanently and totally disabled from a service connected condition and his or her survivors are entitled to DIC 1318 benefits, a separate decision regarding service connection for cause of death may be required when a claim for burial benefits is received. This requires multiple claims processing steps to include potential development for evidence and an additional rating decision to resolve the service connection for death issue. By automatically granting burial benefits at the service connected death rate when DIC 1318 is granted, VBA significantly reduces administrative costs associated with the current process of adjudicating the issue of service connection for death for burial purposes only. Considerations The only cost associated with this proposal is a one-time $1,000 increased payment of burial allowance for surviving spouses who would otherwise receive only nonserviceconnected burial allowance but who would receive DIC anyway. In many of these cases, the thousand-dollar difference will steadily decline because the nonserviceconnected burial allowance is now indexed to increase periodically for Veterans who die in VA facility. The foregoing action would ensure that qualified surviving spouses receive DIC much faster. It would also enable PMCs to redirect the personnel involved in those cases to decide complex DIC cases more efficiently.

23

1.4

Amend 38 U.S.C. 5103 to provide flexibility to VA on when and in what format to issue the notice required by this section

Introduction VA should seek for Congress to amend section 5103 to allow VA flexibility in deciding how to best deliver the required VCAA notice. A bill, H.R. 2383 is currently pending in the House Committee of Veterans Affairs that would satisfy this request. VA has numerous transformational efforts to reduce the claims backlog and improve claims-processing efficiency while improving quality. Some of these include enhancements to the eBenefits portal, VBMS, VONAPP, and the Expedited Claims Process. To ensure success of these and other initiatives, Congress should amend section 5103 to allow for more flexibility in its delivery of VCAA notices, thereby increasing efficiency in the beginning stages of the claims process. While another recommendation in this report seeks to add the notices required in accordance with 5103 to many of VAs most commonly used forms, enactment of this recommendation would ensure VA has the flexibility to adjust to any future change in notice delivery options without the potential for litigation. With more flexibility in how and when to issue notices, VA will significantly reduce cycle times by leveraging technology and other innovative ideas. For example, by attaching notices to the claims applications, VA essentially initiates development before the claim is received in ROs. Once the claims folder is handled for the first time by a VSR, the VCAA notice obligation will be fulfilled, and other actions to move the claim along can be readily taken. This added flexibility will eliminate a significant number of VSR actions and will significantly shorten the overall development time by 30 days in a large percentage of cases. Furthermore, the increased capacity generated by this and other initiatives will allow VSRs to handle the claims folder sooner (than the current 47 days). We further recommend that VA seek to amend section 5103 so that there is no requirement for VA to issue VCAA notice when the same type of claimed issue is subsequently received during the pendency of an active claim. The first notice should suffice. Background The VCAA, codified in part at section 5103, requires VA, upon receipt of a complete or substantially complete application for benefits, to notify the claimant of any information not previously provided to the Secretary that is necessary to substantiate the claim. In addition, VA is also obligated to explain to the claimant what evidence the claimant must obtain and what evidence VA will attempt to obtain. 38 U.S.C. 5103(a) (as amended by Pub. L. No. 106-475, 3).

24

The Court interpreted section 5103 in Pelegrini v. Principi, that VA is required to inform the claimant: (1) (2) (3) (4) of the information and evidence not of record that is necessary to substantiate the claim; of the information and evidence that VA will obtain; of the information and evidence that the claimant must submit;3 to provide any evidence in the claimant's possession that pertains to the claim.

Pelegrini v. Principi, 17 Vet.App 412 (2004).4 The Court described the fourth part of the notice in Pelegrini Iwhich it found was indicated in 38 C.F.R. 3.159(b)- as "give us everything you've got pertaining to your claim(s), or something to that effect." Pelegrini, 17 Vet.App at 422. The "give us everything you've got" language was dropped from Pelegrini II; nonetheless, it describes in easy-to-understand language the fourth part of the notice requirement. VA General Counsel, in a February 2004 precedential opinion, held that the fourth element of Pelegrini was obiter dictum (not necessary to the decision) and therefore not binding on VA. See VA Gen. Coun. Prec. 1-2004 at 7 (Feb. 24, 2004). Notwithstanding the General Counsel's opinion, VA Regional Offices have been directed to advise claimants of the four Pelegrini elements in its VCAA notification letters. See VA Fast Letter 04-04 (Mar. 12, 2004). Regarding the timing of the notice requirement, the Court held that VA is required to provide VCAA notification upon receipt of a complete or substantially complete application, before the RO makes an initial adverse decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-121 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) ("The purpose of the [VCAA] and the corresponding regulation is to require that VA provide affirmative notification to the claimant prior to the initial decision in the case as to the evidence that is needed and who shall be responsible for providing it.) However, the Federal Circuit has held that this duty does not extend throughout the claims process; instead, the VCAA requires only that VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim. Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007). Thus, VA is not required to provide additional notice after a claim has been remanded to the RO or to the Board. Id. at 1058-59; see Sanders v. Nicholson, 487 F.3d 881, 885 (Fed. Cir.
VA's regulations explain that information and evidence that a claimant would be required to provide would include the identification of medical treatment providers and other information or evidence that is in the claimant's control. See 38 C.F.R. 3.159(b),(c) (2008). Shortly after the Pelegrini decision, VA filed a motion for reconsideration or motion for en banc review, and a motion to stay the implementation of the case, challenging the Court's decision as to VCAA notification. In June 2004, the Court granted VA's motion and withdrew its opinion in Pelegrini I, reissuing Pelegrini II in its stead. The Court in Pelegrini II retained its prior holding regarding the applicability of VCAA to claims already pending before VA, and the requirements of the notices content and timing. However, Pelegrini II provides discussion regarding the process when VA fails to provide the required notice.
4 3

25

2007) ("Under the legal framework of the VCAA, there is generally no prerequisite to receiving VA assistance; the VA is simply required to assist a claimant at the time that claimant files a claim for benefits.") Section 5103 provides that information or evidence requested of a claimant must be received within one year from the date such notice is sent. 38 U.S.C. 5103(b). This requirement, added by the Veterans Benefits Act of 2003, Pub. L. 108-183, 701(b)(1), 117 Stat. 2651, 2670 (Dec. 16, 2003), replaced an earlier provision stating that if the claimant did not provide the information or evidence within the one-year period, "no benefit may be paid or furnished by the reason of the claimant's application." 38 U.S.C. 5103(b) (removed by Pub. L. 108-183, 701(b)(1), 117 Stat. 2651, 2670 (Dec. 16, 2003)). VA's regulation provides that if the claimant does not respond to the request "within 30 days," then VA may decide the claim prior to the expiration of the one-year period based on the information and evidence present in the claims file. However, if the claimant subsequently provides the information and evidence within one year of the date of the request, then VA must readjudicate the claim. 38 C.F.R. 3.159(b)(1) (2010). This 30-day deadline was struck down in Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). However, three months after that Court decision, 38 U.S.C. 5103(b) was amended to authorize VA to decide a claim at any time before the expiration of the one year period. See Pub. L. No. 108-183, 701, 117 Stat. 2651 (Dec. 16, 2003). Nonetheless, the Court has stated that it is misleading and ensures confusion and inefficiency, and is potentially prejudicial to a claimant's statutory one-year period for providing information for a VCAA letter to state that evidence must be submitted within 30 days of the date of the letter. George-Harvey v. Nicholson, 21 Vet.App. 334, 339 (2007). After enactment of the VCAA, VA did not believe the notice requirement applied to "downstream" claims. In other words, that if (1) a claim for service connection of a disability is filed, (2) the VA provides notification in regards to substantiating the claim for service connection, (3) service connection is granted, and (4) the claimant files a notice of disagreement regarding a "downstream" element (the effective date or disability rating), VA was not required by VCAA to provide notice to the claimant about what evidence is necessary to substantiate the "down stream" claim regarding the effective date or the evaluation. See VA Gen. Coun. Prec. 8-2003 (Dec. 22, 2003). In Dingess, the Court held that VA's belief was correct in part and incorrect in part. VA was correct that no additional notification is required after the claimant files a notice of disagreement in a "downstream" element. But before VA's initial decision on the claim for service connection, a VCAA notice must, according to the Court, focus on the information and evidence not already of record that is necessary to substantiate each of the five elements of a disability compensation claim (i.e., Veteran status, a current disability, a connection between service and the disability, the degree of disability, and the effective date of the disability). Dingess v. Nicholson, 19 Vet.App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

26

Concerning the specificity of the VCAA notice given, the Court held in Locklear v. Nicholson that VCAA did not require VA to analyze the evidence already in its possession. Specifically, the Court held that VA did not need to conduct a "predecisional adjudication," or in other words, analyze the evidence already in its possession and inform the claimant that the evidence was insufficient to support an award and that other evidence was required in order for the claimant to prevail. Nonetheless, the Court did note, "some cognitive review of the claim must be made prior to providing the notice and that a generalized or boilerplate notice letter might not suffice in some cases." Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (citing Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). For example, in Hupp, the CAVC held that in a claim for dependency and indemnity compensation benefits, the VCAA notice "must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected." Hupp v. Nicholson, 21 Vet.App. 342, 352-53 (2007). Justification The foregoing analysis illustrates some of the challenges VCAA has presented VA over the decade since its enactment. Unfortunately, much, if not all, of the jurisprudence has served to complicate and unnecessarily delay the claims process and confuse Veterans and their dependents. The various court decisions rendered on VCAA have unfortunately not made the process more flexible or efficient, nor have they added the appropriate substance to the claims process to benefit claimants. One particular unintended consequence occurs when VA receives a subsequent claim (i.e., increased-rating claims or service-connection claims) while the same type of issue from a prior claim is pending before VA. This routinely occurs when a Veteran files a multi-issue claim, and a few months later while that claim is still pending, files another claim or adds an issue to that pending claim wherein the issue added is the same type of issue currently pending. In many of these cases, the subsequent claim can be decided, or at least developed, along with the previously pending issues. However, the development and/or decision is extensively delayed in such cases because the VSR provides VCAA notice to the Veteran regarding the subsequent claim. This delay is unacceptable and will be mitigated by this amendment. Effect on Claims Process Timeliness: One of the leading cycle time indicators, average days awaiting development is 47.1 days for the nations pending inventory of 802,219 rating claims (at the end of April 2011). The efficiencies gained through this proposal and other similar VCAA enhancements in this plan can significantly reduce the time it takes to initiate development from the 47 days to a much more reasonable time

27

period. This front-end improvement to the claims process is paramount in VBAs ability to achieve the 125-day goal of completing rating claims. A recent analysis from VBAs Office of Strategic Planning indicate 44 percent of all rating cases are made ready to rate more than once. A key factor in 80 percent of those cases that were made RTR more than once was incorrect VCAA notices. Considering that VBA is on track to complete or receive approximately 1.1 million rating claims in FY 2011, approximately 44 percent, or 484,000 cases will be deferred out from the Rating Board for some reason. 80 percent, or 387,200 cases were deferred because of internal errors pertaining to VCAA notice, VA examinations, or the Rating Decision itself. A conservative estimate for the number of cases deferred due to VCAA notice errors is 200,000 cases per year nationally. Because of VCAA proposed changes, it is estimated that VBA can eliminate 90 percent, or 180,000 deferred ratings per year, and thereby reduce on average 40 processing days from each of these 180,000 claims. This will positively affect timeliness by at least 7 to 10 days nationally and will significantly improve the quality of claims process. VA does not believe the types of non-value added delays (described above) were ever the intent of Congress when it enacted the VCAA. We are therefore recommending Congress amend section 5103 as indicated below. Specifically, subsection (a)(3) in the recommended changes to section 5103 would remedy this inefficiency. Such a change will likely have a positive effect on, at a minimum, tens of thousands of cases. Such a change could easily shorten the overall processing time for the affected cases by 30 to 60 days. Congress attempted to solve part of this problem in the Veterans Benefits Improvement Act of 2008. In pertinent part, title 38 U.S.C. 5103 (as now amended) states the following: (a) Required information and evidence.--(1) Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant. (2)(A) The Secretary shall prescribe in regulations requirements relating to the contents of notice to be provided under this subsection. (B) The regulations required by this paragraph--

28

(i) shall specify different contents for notice based on whether the claim concerned is an original claim, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits; (ii) shall provide that the contents for such notice be appropriate to the type of benefits or services sought under the claim; (iii) shall specify for each type of claim for benefits the general information and evidence required to substantiate the basic elements of such type of claim; and (iv) shall specify the time period limitations required pursuant to subsection (b). 38 U.S.C. 5103 (as amended by, Pub. L. 110-389, Title I, 101(a), Oct. 10, 2008, 122 Stat. 4147). When Congress amended this section of law, it left in place the previous language in subsection (a)(1) that states: Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. This language presents the first problem with VAs current notice requirementit is not adaptable to change. If VA currently operated its claims process under one completely, paperless system, then VA could issue an electronic notice letter at the instant a claimant submits an electronic claim. Although VA is working to develop such processes, a completely paperless system is still years away. VA therefore requires added flexibility in the law in order to achieve an immediate solution. For example, if notice requirements for the most common types of claims, (i.e., compensation and increased-rating claims) could be attached to the form(s) required to file such claims with VA, then the claim could move directly to a more advanced stage of development. Such claims movement could occur as soon as VA receives the claim. Another method VA could deploy with such flexibility is referring a claimant to a website containing an electronic notice consisting of any or all section 5103 notices unless such notice requires tailoring to a specific claimant. As previously mentioned, another obstructing aspect of VAs notice requirements occurs in sequential claims (i.e., when VA receives, for example, an increased-rating claim for multiple service-connected disabilities, and before VA completes processing such a claim, subsequently receives another increased-rating claim on another serviceconnected disability). Although VA may be able to began developing the subsequent claim immediately, or even render a decision on such claim when the initial issues are ready for a decision, once VA discovers that VCAA notice has not been provided on the subsequent claim, then processing the claim must usually stop in order for VA to issue

29

the proper notice. Ironically, in the scenario listed, the notice provided by VA for the initial increased-rating claim normally mirrors the notice issued in the subsequent claim. This example should serve as the epitome of inefficiency. Nonetheless, based on the foregoing judicial history of the section 5103 notice, it becomes quite easy to understand how the notice requirements have come to hinder, rather than improve, VAs ability to deliver efficient service to its clients. In order for VA to gain the efficiencies described above, Congress should amend section 5103 to read as follows: (a) Required information and evidence.--(1) The Secretary shall provide notice of the basic elements necessary to substantiate a claim in a manner most efficient for the Secretary while preserving the effectiveness of the notice provided under this section. The manner in which the Secretary may choose to deliver such notice may include, but is not limited to: electronic methods, including email; standard notices attached to forms prescribed by the Secretary for specific purposes; and notices subsequent to claim submission. As part of the notice, the Secretary shall indicate which portion of information and evidence, if any, claimants are generally required to provide, and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant. No notice is required when the Secretary cannot discern the type of benefit sought by a claimant. (2)(A) The Secretary shall prescribe in regulations requirements relating to the contents of notice to be provided under this subsection. (B) The regulations required by this paragraph-(i) shall specify different contents for notice based on whether the claim concerned is an original claim, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits; (ii) shall provide that the contents for such notice be appropriate to the type of benefits or services sought under the claim; (iii) shall specify for each type of claim for benefits the general information and evidence required to substantiate the basic elements of such type of claim; and (iv) shall specify the time period limitations required pursuant to subsection (b). (3) Nothing in this section will require the Secretary to provide notice for subsequent claims filed during the pendency of another claim when the notice

30

already provided for the pending claim provides notice of the information and evidence necessary to substantiate the subsequent claim. (4) The requirements of this section will not apply to any claim or issue where the Secretary can award the benefit sought based on the evidence of record. Considerations The change to section 5103(a) will ensure that VA has the statutory authority to evolve with the needs of the claims process without fear of no-value-added litigation that would only be aimed at the manner of notice delivery rather than the contents of such notice. While Compensation Service is moving forward with changes to notice delivery as discussed in other sections of this initiative, there is, nonetheless, a slight risk of litigation regarding those changes. The risks, however, are far outweighed by the benefits. This change would eliminate those risks. By allowing VA to standardize all notice delivery, i.e., electronically or otherwise, VAs national claims accuracy rate would increase significantly because large portions of benefit entitlement errors are the result of inaccurate/inadequate notices. Board remands would be reduced for the same reasons. By not requiring additional notice on subsequent claims during the pendency of a previous claim, as long as the notice for the subsequent claim would duplicate the notice of the previous time, VA can significantly reduce overall claims processing time because such situations occur often and nearly always interrupts the work being performed to process the initial claim. Such delays are usually 30 days at a minimum.

31

1.5

Amend 38 U.S.C. 5103A(b) to indicate that VA will assist a claimant in obtaining private medical records when a claimant, on a form prescribed by the Secretary, requests such assistance

Introduction VA should seek a statutory amendment to section 5103A to provide VA authority to engage claimants in taking a more active role in claims development. This will allow VA to issue regulations to significantly shorten the development time, which is currently the lengthiest cycle in the claims process. Empowering the claimant to take a more active role in the claims process will also result in better overall service to the Veteran, thereby resulting in improved customer satisfaction. The average days awaiting evidence at the end of April 2011 (per National Performance Dashboard) is 131 days. This one cycle (out of six) currently exceeds the 125-day strategic target for processing rating claims. A significant portion of this delay is due to the development for private treatment records. Through the proposal described herein, VA will institute an aggressive but clear policy regarding procurement of records while ensuring that Veterans are not harmed in any way. Sharing responsibility with the claimant will assist VA in meeting its strategic target while helping Veterans receive benefits faster. Background Although VA obtains private records for claimants, undue delays in the claims process arise out of statutory and regulatory requirements that often cause VA to futilely request the same private treatment records repeatedly, or requests ones already in VAs possession. The pertinent section of VAs duty to assist statute, 38 U.S.C. 5103A(b) states: (b) Assistance in obtaining records.--(1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain. (2) Whenever the Secretary, after making such reasonable efforts, is unable to obtain all of the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall (A) identify the records the Secretary is unable to obtain; (B) briefly explain the efforts that the Secretary made to obtain those records; and

32

(C) describe any further action to be taken by the Secretary with respect to the claim. 38 U.S.C. 5103A(b) . VA promulgated a regulation concerning the above statutory requirements that states: Obtaining records not in the custody of a Federal department or agency. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. . . . 38 C.F.R. 3.159(c)(1)(2010). The foregoing regulation and its authorizing statute do not currently lend themselves to suggesting that a claimant submit his/her own private records when it is easier for him/her to do so, or when they would prefer to do so. In fact, in many cases, a claimant will submit their own private records only for VA to send that claimant a VA Form 214142 so that VA can seek other records, if there are any, despite the fact that such claimant has not (1) identified other records for VA to obtain, and (2) authorized VA to obtain other records. These types of self-imposed delays are simply unnecessary. Justification VA claimants should be encouraged to participate in the development of their own claims to the extent possible. Apart from filling out an application, one of the easiest functions that claimant can perform happens to be the cause of some of the longest delays in the claims processobtaining private records. While this function can sometimes prove difficult for claimants who are elderly, severely disabled, or incompetent, most claimants can easily obtain their own private records. In fact, most claimants are conditioned by the military to procure their own records. Consequently, most Veterans prefer to do so to ensure VA receives the pertinent records. Claimants often submit private records only to have VA undertake development for the same records. Duplicative and/or futile development is routinely undertaken by ROs because it is not clear to the VSRs if the Veteran submitted records in their entirety or if there are other records that might be available. This triggers unnecessary and timeconsuming development. Furthermore, the same claimants that submit their records often submit a completed medical release form for the same records they sent VA because they are conditioned to fill out all paperwork. This confusion causes significant delays in the claims process. Furthermore, these types of situations can feed otherwise empty litigating positions during many judicial proceedings. Enactment of this

33

recommendation would clarify an aspect of the VCAA development process that is frustrating and confusing to VAs claimants. In accordance with the foregoing, consider a Veteran requesting an increased rating for a single service-connected disability wherein the Veteran has private treatment records relevant to the claim. First, such factual information must be clearly indicated on the pertinent claims form. The claims form should instruct the Veteran to obtain the PTRs and submit them to VA with the application. It is important to understand that section 5103A does not currently authorize, nor prohibit, VA from engaging a claimant in this manner. The form should further instruct the Veteran that if he/she cannot submit the PTRs with the application, then VA must receive such records within 30 days. The same form, or other notification, should also clearly and in understandable language inform the claimant that if he/she cannot or will not obtain PTRs, then VA will assist in obtaining the records if the Veteran properly authorizes VA to do so. Such instruction should be clear that if a claimant does not require VAs assistance in obtaining records, then such assistance should not be requested. Another scenario is one where a Veteran does not have supporting PTRs, and therefore may only need a current VA examination. Under the current process, such a Veteran normally undergoes the entire development process, despite that fact that he/she may only require a current VA examination. Therefore, changes to VAs duty to notify/assist are necessary so that the Veteran may clearly indicate to VA whether he or she has had previous treatment for the claimed condition and whether he or she wants VA to assist in obtaining the records. This will prevent futile development in many cases. There are other benefits to this type of legislative amendment when considered in the context of other suggestions contained herein. Whether a claimant files for compensation because of disability, or an increase in the level of compensation, and complies with the above instructions, then VA can quickly determine if any additional development is required in the case. In other words, if a Veteran submits an application for benefits that includes supporting treatment records as noted above, and such treatment records are adequate for rating purposes, then no further action will be required in the caseit will be ready for a decision within a few days, but no longer than a few weeks. In order for VA to gain the efficiencies described above, Congress should amend section 5103A(b) to read as follows: (b) Assistance in obtaining private records.-- As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain private records relevant to the issue(s) before the Secretary when the claimant requests the Secretarys assistance in obtaining such records on an application for benefits (or form) prescribed by the Secretary. (A) The Secretary shall prescribe regulations that (1) ensure VAs duty to assist in obtaining records described in subsection (b)(1) remains available to

34

claimants, while (2) encouraging claimants to play an active role in the development of their claims by submitting their own private medical records to the Secretary when such actions will not burden the claimant. (2) For the purposes of this subsection, a reasonable effort requires two requests to the custodian of such records, unless response to the first request indicates that a second would be futile. Whenever the Secretary is unable to obtain all of the relevant records sought, the Secretary will notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall-(A) identify the records the Secretary is unable to obtain; (B) briefly explain the efforts that the Secretary has taken to obtain those records; and (C) explain that the Secretary will decide the claim based on the evidence of record, but that such claim will be readjudicated if the claimant can obtain and submit such records within the one-year appellate period if such records are relevant to the claim. (3) The Secretary may discontinue assistance in obtaining records under this subsection when the evidence of record supports a favorable decision on the issue before the Secretary. (4) The claimant may waive requirements under this section. Considerations There may be a negative perception associated with this proposal, specifically that VA is not assisting Veterans as Congress intended in the VCAA. However, the amendment to section 5103A(b) would, in no way, restrict or otherwise limit VAs duty to assist Veterans in developing their claims. Rather, it would ensure that VA has the authority to promote a more active participation of Veterans in their claims. In turn, Veterans who choose this more active role will experience a benefits system that is less confusing and more efficient. We are suggesting that VA undertake some of these changes through policy, as discussed elsewhere in this initiative. Nonetheless, having statutory authority for such a no-nonsense approach to claims processing benefits all stakeholders. Discontinuing assistance when VA can issue a favorable decision is a practice arguably allowed by law already, but one that is very underutilized. Providing express statutory authority will assist VA in solidifying such a practice.

35

Veterans routinely submit their own records only to have VA ask for them again, or to have VA forward release forms to the Veteran so that VA can ask for them again. This has proven as an area of considerable dissatisfaction among VA claimants. The authority provided for here would help VA to eliminate that dissatisfaction. VA should consider eliminating the attachment of medical releases to VA forms because of the issues raised above. Clear instructions as to when VA requires medical releases and where forms can be accessed will sufficiently aid the claimant if private medical records are pertinent to the claim.

36

1.6

Eliminate award reductions for certain Veterans that are hospitalized at VA expense, as stipulated in title 38 U.S.C. 5503

Introduction VA should seek a statutory amendment to section 5503 to eliminate award reductions for certain hospitalized Veterans. Specifically, subsections (a), (b), and (c) of section 5503 are proposed to be repealed. The intent of the hospital adjustment program is to prevent duplication of benefits provided to Veterans who are hospitalized at government expenses. However, a costbenefit analysis (See Appendix 4) covering a 5-year period showed minimal benefits to the government. In fact, when considering the minimal financial benefits of the program combined with the labor and opportunity costs of 17 FTE that are required to process hospital reductions, the costs of the program outweigh the benefits. Furthermore, when considering the practical and moral ramifications of reducing benefits of some of our most disabled and/or needy Veterans, VA should eliminate adjustments to VA compensation awards based on hospital, domiciliary, or nursing home admittances. Background Title 38 U.S.C. 5503 stipulates that monthly payments to certain VA beneficiaries must be reduced when they are hospitalized at VA expense for a specified period of time. The main categories of Veterans affected by this law are: (1) Single Veterans receiving pension, in which case the Veterans award is reduced to $90 per month at the end of third full calendar month following the month of admission; and (2) Veterans (with or without dependents) receiving compensation with an Aid and Attendance allowance, in which case the additional aid and attendance allowance will be discontinued effective the last day of month following the month of admission. In order to make the required adjustment, VA regional offices must obtain hospital reports through the Compensation and Pension Record Interchange, screen the reports, and then take the necessary actions to adjust beneficiaries awards. On February 7, 2005, a VBA Hospital Adjustment Team was created to review the procedures for processing claims that involve hospital adjustments and recommend needed changes. A long-term recommendation from the team was to conduct a cost/benefit analysis of the hospital adjustment program. This analysis was conducted, and at its conclusion, it was determined that the overall cost of administering the program outweighs any potential savings to the taxpayer. This has led to the proposal to eliminate award reductions for all compensation and pension-related hospitalizations, as stipulated in 38 U.S.C. 5503, and 38 C.F.R. 3.551 and 3.552. Note: For the purposes of this proposal and in accordance with 38 C.F.R. 3.551, the term hospitalization means:

37

(1) (2)

Hospital treatment in a Department of Veterans Affairs hospital or in any hospital at Department of Veterans Affairs expense. Institutional, domiciliary or nursing home care in Department of Veterans Affairs institution or domiciliary or at Department of Veterans Affairs expense.

Justification The benefits of administering VBAs hospital adjustment program strictly from a financial point of view are minimal (See attached cost/benefit analysis at Appendix 4). The cost of administering VBAs hospital adjustment program in FY 03 exceeded the benefit by $409,660. In FY04 and FY05, benefit exceeded cost by $89,922 and $1,239,091, respectively. In FY06, cost exceeded benefits by $657,261, and FY07 benefits exceeded costs by $287,892. The total financial benefit to the taxpayer over the 5-year period was $549,984. The cost of operating this program places a significant drain on VA resources. From FY03 through FY07, the end products related to hospital adjustments (EPs 135, 293, 320, and 600) represented approximately .6 percent of the total national compensation and pension workload.5 VA estimated that this workload required an average of 17 Compensation and Pension FTE per year over the 5-year study period. This does not include labor required for processing of waiver requests, drop filing reports into claims folders, transferring claims folders, etc. By re-directing these man-hours, VBA will enhance our ability to provide more timely and accurate decisions on disability compensation claims. VA should also consider the moral ramifications of reducing awards for hospitalized individuals, who represent some of our most disabled and needy veterans. If this proposal is accepted, it is true that VA will bear the full cost of care for veterans while they are hospitalized by continuing their monthly compensation or pension awards. It is also true that these beneficiaries, when hospitalized, are still obligated to pay their mortgages, car payments, utility bills, etc. With this in mind, many believe that hospital reductions do not align with VAs goal to improve the quality of Veterans lives and that of their families, or honor and serve Veterans. Furthermore, the hardship experienced by Veterans when VA creates an overpayment on their award does not reflect VAs core values of compassion, commitment, and excellence. Considerations By eliminating the hospital adjustment program, VBA would be able to redirect FTE resources (approximately 17 FTE per year) to better address the disability claims inventory. As an example of the opportunity costs involved with 17 VSRs, nearly 17,000 rating-related claims could be developed in a given year. This approximation is based on a VSR developing 5 cases per day.

National workload represents total number of claims received during the fiscal year; includes rating, nonrating, eligibility, and ancillary claims.

38

Although the hospital adjustment program was intended to save the government money, our analysis demonstrates minimal savings and benefits to the government. In fact, when considering all expenses and opportunity costs related to this program, the government would actually benefit from eliminating the program altogether. If this legislative proposal is not adopted, then the alternative proposal could be that the required periods of time before adjustment be extended, thereby eliminating a significant portion of the reviews and award reductions. For example, by extending the period for Aid and Attendance reduction to six or 12 months instead of the current onemonth, VBA eliminates the need to adjust these awards except in cases where the Veterans condition warrants extended institutional care. Potential budget implications for VHA: The statute indicates that amounts in excess of the $90 for pensioners shall be deposited in a revolving fund at the Department medical facility that is furnishing care for the Veteran. VBA is unaware of how these funds are allocated at the VHA facilities. VBA leadership should communicate with VHA leadership in regards to the potential consequences of termination of these transferred funds.

39

2 Regulatory
2.1 Eliminate appeal election letter by providing such notice in the decision award letter rather than post notice of disagreement

Introduction This proposal would amend 38 C.F.R. 3.2600 to provide DRO election rights with the decision award letter. This will create a significant increase in claims efficiency in the appellate process by preventing appeal-team members from having to issue appeal election letters. In FY 2010, VA received 150,475 NODs. By providing claimants with the appeal election rights in the decision notification package, VA can free up approximately 24.1 FTE per year. The Board estimates that VA will receive 170,000 NODs in FY 2011, which will equate to 27.24 FTE. The elimination of this extra step in the appeals process will reduce the appellate processing time by 60 days in each effected appeal, and free up valuable resources for other critical appeals or claims processing functions The Office of General Counsel reviewed this proposal and has not identified any statutory impediments in its implementation. OGC agreed that the regulatory amendment in 3.2600 would be required. Note: If section 2.2 is implemented, then this regulation change will be unnecessary. Background In the current appeals process, VA issues an appeal election letter to all claimants who submit an NOD. The letter provides an appellant with the opportunity to choose a special post-decision review by a decision review officer or traditional appeal process. To begin the appeal process, an appellant files an NOD with the RO that issued the decision. After filing a NOD, VA sends the appellant an appeal election form asking him/her to choose between a traditional appellate-review process or a DRO review. DROs provide a de novo review of an appellants file, and can hold a personal hearing with the appellant. DROs are authorized to grant contested benefits based on the same evidence that was used in the initial Rating Decision. VA provides the appellant 60 days to respond to the appeal election form. See 38 C.F.R. 3.2600 (2009). Once VA receives the appeal election form, an RVSR or DRO issues an SOC explaining the reasons for continuing to deny the appellants claim. A VA Form 9, or substantive appeal form, is used to substantiate an appeal to the Board of Veterans Appeals and is attached to the SOC. The VA Form 9 must be filed within 60 days of the

40

mailing of the SOC, or within one year from the date VA mailed its decision, whichever is later. Justification This proposal will provide claimants the same appellate opportunity they currently receive by including the critical portions of the current appeal election letter in the decision notification package. Options regarding DRO reviews or traditional appeal process would be clearly presented in the section of the notification letter that pertains to Appeals. The notice will explain that any NODs submitted without electing a postdecision review process will automatically be reviewed under the traditional appeal processthe same process followed in the current system if the appellant fails to respond to the appeal election letter. This will save valuable FTE hours by preventing appeal-team members from having to issue significant numbers of appeal election letters. In FY 2010, VA received 150,475 NODs. By providing a claimant with his or her appeal choice in the decision notification package, VA can free up approximately 24.1 FTE per year. This preliminary analysis assumes that it takes 20 minutes to prepare and release the election letter (150,475 X 20 min. = 50,158 hrs/ 2080 hrs (1 year) = 24.1 FTE). The Board estimates that VA will receive 170,000 NODs in FY 2011, which will equate to 27.24 FTE. The elimination of this extra step in the appeals process will reduce the appellate processing time by 60 days in each affected appeal, and free up valuable resources for other critical functions. The requirements at 38 U.S.C. 5104 (Decisions and Notices of Decisions) state, inter alia, 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. 5104(a). Therefore, VA already has the statutory authority to incorporate this recommendation by modifying its regulation at 38 C.F.R. 3.2600(b). The right to elect the traditional appellate process or a post-decision review from a DRO is certainly part of the procedure for obtaining review. Only instructions at section 3.2600(b) mandate that VA send an appellant the appeal election letter after submission of an NOD, followed by the regulatory 60-day delay in processing the appeal. VAs notice statute at section 5104 does not mandate the administrative delay caused by the regulation at section 3.2600. Therefore, VA should amend section 3.2600(b) (including any conforming amendments, if necessary) to mandate that when VA issues a decision notice, such notice will include the procedure for obtaining a post decision review by a DRO and/or a traditional appeal process. Considerations This change will more uniformly comply with the intent of the controlling statute. The cost benefit analysis anticipates that the approximate 27 FTE VA will be able to redirect is comprised of claims assistants, when in reality, VSRs and DROs must also

41

deal with DRO election letters at some regional offices. This change will therefore allow VA to redirect employee functions from appeals administrative duties to rating duties and other administrative duties that directly affect rating cycle times, (e.g., establishing control of rating claims). This regulation change would be a rule of agency procedure or practice, which, subject to OMBs agreement, could be issued without the lengthy requirements for publishing a proposed rule and soliciting public comment under the Administrative Procedure Act.

42

2.2

Convert the local appellate process into a single-flow system using the DRO program as the model, thereby providing de novo review on all appeals

Introduction To implement this proposal, VA would amend section 3.2600 to serve as the guiding regulation for a single-avenue appellate process. There could be numerous benefits to such an amendment. In all locally appealed cases VA could undertake proper development or review action, and following such action, resolve the disagreement by potentially granting the benefit sought, as contemplated by the authorizing statute at section 7105 without the claimant having to choose between two choices he/she poorly understands. VA would no longer be required to explain the DRO election process to claimants; therefore, no unintended harm could come to those who fail to understand such process. And most importantly, VA could resolve more appealed cases locally and earlier in the appeals process, thereby reducing the number of total appeals proceeding to the Board. If implemented, this recommendation would subsume recommendation 2.1. OGC has indicated this proposal reflects a defensible interpretation of 38 U.S.C. 7105(d)(1). No legal objections were raised by OGC. Background A claimant who files a timely NOD may, at the claimant's option, request that the rating board decision be reviewed by a DRO. The regulations governing the DRO procedure are found at 38 C.F.R. 3.2600. The review is de novo (that is, the DRO provides a new and complete review without giving any deference to the fact that other RO personnel previously decided the claim). In addition to DROs, de novo review may be conducted by the VSCM at VA's discretion. 38 C.F.R. 3.2600(a) (2010). Since December 1997, DROs have been taking the place of hearing officers. See Review of Benefit Claims Decisions, 66 Fed. Reg. 21,871, 21,872 (May 2, 2001). The DRO program went from a pilot program to a permanent program in 2000. See VBA Training Letter 03-01, "Duties and Responsibilities of the [DRO]" (Jan. 21, 2003). The DRO review process is not available unless the claimant has filed a timely NOD. The DRO review process is an optional review of an RO rating decision - a claimant does not have to elect a DRO review in order to appeal an RO decision to the BVA. If a claimant does not want to seek a DRO review, he or she does not have to request it. Unfortunately, many claimants who could benefit from a DRO review early in the appellate process miss such an opportunity merely out of confusion.

43

Under VA's regulations, a claimant has a limited period of time in which to request a DRO review. Upon receipt of the NOD, the RO will, before issuing an SOC, notify the claimant in writing of his or her right to a DRO review. The claimant must then request DRO review within 60 days after the date the VA mails the notice. This 60-day period may not be extended. It is important to note that if the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing an SOC. 38 C.F.R. 3.2600(b) (2010). If the claimant requests a DRO review, the DRO will issue a new decision after considering all evidence of record and applicable laws, and without giving any deference to the decision being reviewed. Furthermore, the DRO may conduct any additional development of evidence he or she considers necessary to resolve any issues addressed in the NOD. The DRO may also hold an "informal conference" with the claimant. The purpose of the informal conference is to clarify the issues the claimant wishes to appeal, provide explanations, and identify additional sources of pertinent evidence. The informal conference may be conducted by telephone, videoconference, or in person. Additionally, if the claimant requests it, the DRO will conduct a personal hearing. 38 C.F.R. 3.2600(a) and (c)(2010). VAs regulation at section 3.2600 cites, inter alia, 38 U.S.C. 7105 (Filing of notice of disagreement and appeal) as its statutory authority. The portion of the authorizing statute pertinent to this discussion is found at subsection (d)(1), which states: Where the claimant, or the claimant's representative, within the time specified in this chapter [38 USCS 7101 et seq.], files a notice of disagreement with the decision of the agency of original jurisdiction, such agency will take such development or review action as it deems proper under the provisions of regulations not inconsistent with this title. If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statement of the case. 38 U.S.C. 7105(d)(1). Justification Although the Secretary has exercised his rulemaking authority to create the DRO program, such a program is clearly not required by statute. In practical application, section 3.2600 administratively creates a dual smoke stack appellate streamone that is more administratively burdensome than that required or contemplated by the authorizing statute. For example, VA received approximately 150,000 NODs in FY2010. Section 3.2600 requires VA to provide DRO election rights to those appellants, which is in itself an action required only by regulation, not by statute. The notice of such rights lengthens appeals by 60 days per case. Further, if a claimant chooses the traditional appellate process and does not submit evidence not considered

44

in the original decision, then the RVSR processing that appeal lacks the authority to award the claimant the benefits sough on appeal. The RVSR is instead instructed to issue an SOC. This restriction is arguably at odds with subsection 7105(d)(1), which states in pertinent part: Where the claimant . . . files a notice of disagreement . . . [VA] will take such development or review action as it deems proper . . .. If such action does not resolve the disagreement [ ] by granting the benefit sought . . . [VA] shall prepare a statement of the case. 38 U.S.C. 7105(d)(1) (emphasis added). The statute clearly provides that a review action following submission of a timely NOD authorizes VA to grant the benefit sought. However, VAs implementing regulation only allows such actions if the claimant elects a DRO review. This regulatory restriction is potentially harmful to VA claimants who could otherwise benefit from a DRO review since in some circumstances, they are the only ones specifically authorized to implement the instruction contemplated by the controlling statute. Failing to elect a DRO review within the 60-day window required by VAs regulation can harm other claimants who could also benefit from a DRO review. In essence, section 7105 provides an avenue for local RO relief following submission of an NOD, while section 3.2600 provides for two avenues, but where only one of those avenues provides for local RO relief as contemplated by section 7105. We believe there may soon be a remedy to this inefficient process. VAs proposal to provide the Board first-instance jurisdiction on evidence submitted by a claimant with or subsequent to submission of a substantive appeal (see section 1.1) has received overwhelming support from congressional and VSO stakeholders. If Congress enacts that proposal, an extensive workload (as much as 60,000 SSOCs in the first year) will be lifted from local appellate teams across the Nation. Therefore, if such actions take place, rather than eliminate the DRO program, we propose that VA amend section 3.2600 to make the DRO program encompass all appeals at the local level into a single appellate stream, thereby eliminating the traditional appellate process. In approximately 2007-2008, VBA attempted to propose such a rule change; however, senior leadership felt that ROs lacked the number of qualified personnel sufficient to convert all RVSRs assigned to local appellate teams to DROs. In this scenario, such a personnel shift would not be necessary because the roadblocks that prevented the previous proposal from becoming a reality would be eliminated by the passage of legislation reversing the Boards first-instance jurisdiction. Simply put, because of the vast reduction of the number of SSOCs VA would be required to issue (and the need to issue separate DRO election letters), there would be no need for the traditional appellate process, nor would there be a need to maintain the current RVSR staffs as part of local appellate teams. Appeals team RVSRs would be reassigned back to the Rating Board. Some stations may need to slightly increase the DRO staff, but such a slight increase in staff, if needed, should not require tapping into unqualified personnel.

45

Considerations This recommendation will subsume the foregoing recommendation at section 2.1, but will have all of the same benefits as that recommendation. However, this cannot likely be submitted as an interim rule change. VA will be able to redirect RVSRs on the local Appeals Teams back to the Rating Team so that rating claims can be addressed. All local appeals will receive a de novo review, which will resolve more appeals without the need to submit such appeals to the Board. This will also shorten the overall appeals process while simultaneously shortening the initial decision-making process. The appeals process will be simplified for all appellants.

46

2.3

Eliminate the discretion found in 38 C.F.R. 3.326 when determining whether to accept private evidence for rating purposes (examination by exception)

Introduction VA should amend 38 U.S.C. 5125s corresponding regulation, 38 C.F.R. 3.326, by adding new language that would require VA to accept a private opinion or examination report if VA determines that the report is adequate for rating purposes. The regulation change would essentially change the may in paragraph (b) to shall or must. In order to solidify other suggestions herein, VA should further amend section 3.326 to make clear that when VA receives evidence (private or VA) that supports a favorable decision on a service-connection or increased-rating claim, where such evidence meets the amended requirements of section 3.326, then all requirements contained in 38 C.F.R. 3.159 are satisfied. OGC agreed that this proposal represents a defensible exercise of VAs discretionary authority under 38 U.S.C. 5125. Background Numerous developmental procedures in the VA claims process collectively add undue delay. For example, rather than making timely decisions on compensation claims when evidence development may be complete, VA routinely continues to develop claims. These actions feed public perception that VA would rather not grant a claimed benefit and simply continue to develop it instead. The situation described above results in delayed development of claims and numerous appeals, which are followed by remands from the Board and/or the Court. In many of these cases, the evidence of record may support a favorable decision on the appellants behalf yet the appeal is remanded nonetheless. These remands usually do nothing but perpetuate the hamster-wheel reputation of Veterans law. In fact, BVA remands numerous cases for no other reason but to obtain a VA medical opinion merely because the appellant submitted a private medical opinion. Identical actions routinely occur during the initial stages of a claim as well. Such actions waste valuable VA resources. Justification VA essentially requests medical examinations and/or opinions in cases where the claimant has already submitted evidence and/or opinions that are adequate for rating purposes. VA claimants desiring to secure their own medical evidence, including a fully informed medical opinion, are entitled by law to do so. If a claimant does secure adequate medical evidence, there is no need in practicality or in law for VA to seek its own evidence.

47

Congress enacted 38 U.S.C. 5125 for the express purpose of eliminating the former 38 C.F.R. 3.157(b)(2) requirement that a private physicians medical examination report be verified by an official VA examination report prior to an award of VA benefits. Section 5125 states: For purposes of establishing any claim for benefits under chapter 11 or 15 of this title, a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim. 38 U.S.C. 5125 (emphasis added). Therefore, Congress codified section 5125 to eliminate unnecessary delays in the adjudication of claims and to avoid costs associated with unnecessary medical examinations. Notwithstanding the elimination of 38 C.F.R. 3.157, and the enactment of 38 U.S.C. 5125, VA routinely refuses to render decisions in cases where the claimant secures a private medical examination and/or medical opinion until a VA medical examination and/or medical opinion are obtained. Such actions delay decisions and prompt needless appeals. When claimants submit private medical evidence that is adequate for rating purposes, VA should mandate that it must decide the case based on such evidence rather than delaying the claim by requesting additional and unnecessary medical examinations and opinions from the agency. Such a mandate will preserve VAs manpower and budgetary resources; help reduce the claims backlog and prevent needless appeals; and most importantly, better serve disabled Veterans and their families. Considerations This proposal represents a significant cultural change and shift in the mindset of those handling disability claims. It is imperative that training and follow-up training be provided to ensure adjudicators adhere to this policy. As an accountability measure, this proposal, if implemented, may be followed by the development of a new STAR quality element for timeliness. For example, if a decision maker orders a VA examination unnecessarily when an adequate private medical report was of record, then a timeliness error could be called by STAR. VA will be able to issue favorable decisions immediately in a significant number of claims, thereby improving timeliness and, more importantly, improving customer satisfaction.

48

The value of this proposal will only increase as the VASRD continues to be updated. For example, more private medical reports can potentially be used for rating purposes as the rating criteria is updated and modernized. The claimant will not be harmed by this proposal, as VA will not be required to rate on any private medical evidence that is not adequate for rating purposes.

49

2.4

Amend 38 C.F.R. 3.159 to make clear that development will cease when VA can issue a favorable decision on the issue at hand

Introduction VA should amend pertinent sections of 3.159 to make clear that when considering a claim for compensation, an increase in compensation, pension, or DIC, if VA receives evidence that complies with the requirements set forth in the applicable section of the Rating Schedule, and where evidence of record otherwise supports a favorable decision on the issue at hand, no further development will be undertaken. Such an amendment is consistent with the controlling statute, 38 U.S.C. 5103A, precedent decisions of the Court, and is keeping with the non-adversarial, pro-claimant, Veteran-friendly, nature of VAs benefits delivery system. It further conforms and solidifies changes requested in section 2.3. Furthermore, in reviewing this proposal, VAs OGC believed that an argument could be made that, once VA has sufficient evidence to grant the claimed benefit, the claim is substantiated, and thus VA may cease development on the ground that further development would not aid in substantiating the claim. VAs OGC indicated that this proposal would likely have some positive impact on claim adjudication timeliness. Furthermore, OGC stated that no authority explicitly requires VA to exhaustively develop every claim until it is certain no evidence supporting a higher degree of disability or earlier effective date is available. Background Regulations already allow VA to cease further development when service connection can be awarded. 38 C.F.R. 3.304(c) (stating that [t]he development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination.) The Court has held that this regulatory language gives VA the discretion to determine how much development is necessary for a determination of service connection to be made. Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (emphasis added); see 38 U.S.C. 7150(d)(1) (stating that agency will take such development or review action as it deems proper under the provisions of regulations not inconsistent with this title once an appeal is filed). There may be an expansive body of law that describes VAs duty in providing contemporaneous examinations in many cases; however, the duty does not extend when evidence of record is adequate for rating. See 38 C.F.R. 3.326 (2010) (explaining VAs authorization to provide examinations in original and increased-rating claims when evidence is otherwise not adequate for rating). These instructions apply equally to VAs duty to notify. For example, VAs duty to notify regulation specifies that VA is only required to notify claimants of information and medical or lay evidence that

50

is necessary to substantiate the claim. 38 C.F.R. 3.159(b)(1)(2009). Claims ready to rate wherein the benefit sought will be awarded are already substantiated. Justification This type of clarification of VAs duty to assist regulation will improve timeliness across the entire claims process by ending case development when VA can issue favorable decisions. Further, such a clarification will give effect to the changes requested in this initiative, thereby helping to focus the mindsets and attitudes of VA employees to the mission of providing benefits in a timelier manner. Considerations This change will further assist in shifting the culture of VBA to one that encourages final decisions at the earliest possible stage of development. VA continues development in many cases when a favorable decision can be made based on evidence of record because of a near universal belief that all potential development must be complete before a decision can be rendered. While this may be true for many denials, it is not true for many cases where VA can award the benefit sought. It will help reverse the attitudes of many stakeholders that VA develops to deny cases. The new regulation will conform to other regulations and court interpretations that already encourage this very practice.

51

2.5

Amend 38 C.F.R. 3.156 to allow VA to reopen claims based upon the submission of new evidence, rather than new and material evidence, by modifying the definition of material as it relates to reopening previously denied claims

Introduction From the original VCAA notice, to the administrative and judicial appellate systems, the entire process of adjudicating new and material claims is inefficient and cumbersome. Therefore, this proposal will redefine the material component so that the threshold for reopening a previously denied claim is lower than the current standard, thereby allowing more of these types of claims to be adjudicated on their merits. The complexity of these claims is demonstrated by the pre-adjudication analysis and the required VCAA notice that is tailored to the reason(s) of the previous denial and the explanation of the type of evidence sufficient for to reopen the claim. This is arguably the most complex notice requirement issued by ROs. The notice requirement itself is further complicated by the current claims processing model. Generally, RVSRs possess the skill necessary to determine the reasons for a previous denial and type of evidence required to satisfy the material element so that the claim can be successfully reopened. Yet, the current model allows non-rating employees to analyze the case and issue the notice letters. A related recommendation as explained below is that VA issue administrative notices, along with an explanation of what constitutes new and material, when a claimant seeks to reopen a previous denied claim on the exact same evidence that was presented with the previous denial. Such notices will not be subject to appeal. Background The Veterans Judicial Review Act, Public Law 100-687, enacted on November 18, 1988, codified the previous regulatory provision regarding reopening claims based upon the submission of new and material evidence. Section 5108 of title 38 of the United States Code provides: If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Former title 38 C.F.R. 3.201 and 3.205, which related to the adjudication of claims involving compensation or pension based upon new and material evidence presented after final disallowance, were published in the Federal Register on November 27, 1948, as part of the revision of all VA regulations. The preamble noted that the revision, which was subsequent to the original codification (of title 38 C.F.R.), effective June 1, 1938, consists of all Veterans Administration material (except descriptions of organization

52

and locations of field establishments) currently effective as of November 1, 1948. Section 3.205 of this publication, entitled What constitutes new and material evidence showed the following: Evidence which is solely cumulative or repetitious in character will not serve as the basis for reconsideration of the previous decision. When evidence relates to the same specific fact to which proof was before adduced of a like character it is cumulative but not when it relates to a new fact respecting the general question or point in issue. To constitute material evidence the facts offered must relate and go to the issue, or have a legitimate and effective influence or bearing on the decision in issue. A Federal Register publication dated February 24, 1961, shows that the provisions relating to new and material evidence were moved to section 3.156(a)-(g). The definition of new and material evidence, exactly as shown above, appeared in section 3.156(g). Provisions relating to the effective date of an award based upon new and material evidence submitted either before or after the appeal period were in section 3.400(q). See 26 F.R. 1561. A Federal Register publication dated December 1, 1962, shows that section 3.156 was amended to cancel paragraphs (a), (b), (c), (f) and (g). The provisions relating to the submission of new and material evidence submitted during the appeal period remained as paragraph (a); paragraph (b) contained the provisions relating to supplemental service department records. The provision containing the definition of new and material evidence was deleted from the regulation. Section 3.156 was substantially the same (that is, it consisted of two subsections, 3.156(a) and 3.156(b)) at the time the VJRA was passed in 1988. As noted above, the VJRA codified the provisions relating to the submission of new and material evidence at 38 U.S.C. 5108. The legislative history surrounding the passage of the VJRA shows that the codification of the provisions relating to reopening of claims was not intended to alter the treatment presently being afforded to claimants seeking to reopen their claims. The committee believes that codification of this right and authority is an important safeguard to veterans. H.R. Rep. 100-963, 1988 U.S.C.C.A.N. 5782, 5819. After the passage of the VJRA, VA amended its regulation in 1990 to once again define the term new and material evidence. Sections 156(a) and (b) were re-designated as sections (b) and (c), and new section (a) was added as follows: (a) New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.

53

Effective August 29, 2001, VA again amended its definition of new and material evidence in subsection 3.156(a) after the passage of Public Law 106-475, the Veterans claims Assistance Act of 2000. See 66 FR 45620. The explanation in the preamble to the final rule shows that VA changed the definition of new and material evidence to define what actions it will take to assist a claimant in submitting evidence to reopen a finally denied claim. It was noted that in VAs view, it is helpful for the claimant to understand the nature of the evidence that will reopen a claim, in light of the fact that it will now be easier for a claimant to reopen a claim because, unlike before, the claimant will now have VA assistance in obtaining evidence that is potentially new and material. The following definition was added as section 3.156(a): (a) A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of records at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Although in 2006 VA amended subsection 3.156(c) relating to service department records, there have been no substantial changes to 3.156(a) since the 2001 amendment. The fact that the VJRA codified new and material in section 5108 with the express intent of not altering the treatment presently afforded to claimants seeking to reopen their claims, indicates that only Congress could remove the requirement that evidence be material. An argument can nonetheless be made that to remove the material component of new and material evidence would lessen the burden on claimants since then the only remaining requirement would be that the evidence be not previously considered by VA decision-makers. VAs reaction to the VJRA was to amend its regulation in order to make clear what kind of evidence is required to be both new and material. Following the VJRA, the Court of Appeals for Veterans Claims weighed in, describing material evidence as that which is relevant and probative of the issue at hand. See Wray v. Brown, 7 Vet. App. 488 (1995); Morton v. Principi, 3 Vet. App. 508 (1992). The 2001 regulatory amendment specifically describes each of the two requirements for reopening whereas prior regulatory definitions did not specifically define each term. It appears that VA interpreted Congresss intent in passing the VCAA was to, among other things, make clear via regulation what type of evidence would assist claimants in reopening and possibly establishing a previously denied claim.

54

Since Congress has expressly stated that new and material evidence must be presented, it is likely that a regulatory amendment deleting the requirement that the evidence must be material would, upon judicial review, be found to exceed statutory authority. Although, it is equally as likely that such a regulatory amendment would liberalize rather than limit statutory criteria and therefore not exceed statutory authority. Section 5108 constitutes a statutorily defined exception to finality of claim decisions, and Congress defined the scope of that exception by providing for reopening where there is new and material evidence. We risk violating congressional intent if we were to read one of the criteria out of the statute. Furthermore, elimination of the materiality requirement in its entirety would permit a claimant to reopen a claim by submitting any new evidence, regardless of whether it pertained to the claim for which reopening is sought. This would require VA, essentially upon request, to revisit claims on the same factual basis on which they were previously denied, which would tend to clog the system with endless reviews of matters already decided and conflict with the longstanding prohibition on consideration of claims on the same factual basis on which they were previously denied claim. See 38 U.S.C. 7104(b). However, VA has latitude in how it defines the term material for purposes of implementing the statute. Congress has not defined that term, leaving it to VA to do so. Although the former Court of Veterans Appeals in Colvin v. Derwinski, 1 Vet. App. 171 (1991), failed to give any deference to VAs regulatory interpretation of the term and sought to impose its own definition, drawn from Social Security case law, Colvin was overruled by the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), which indicated that, under the Supreme Courts precedent in Chevron, the Court was required to defer to a reasonable interpretation of a statute in VA regulations. Although VA revised 38 C.F.R. 3.156(a) concerning new and material evidence in 2001 to incorporate language somewhat similar to that propounded by the Court of Veterans Appeals in Colvin, in light of Hodge and Chevron, VA may revise its definition to provide a more liberal standard for reopening so long as it can articulate a reasonable basis for doing so. For example, VA might define material as encompassing any evidence that relates to the claim at issue. Justification Redefining material to allow more claims to be decided on their merits may increase claims efficiency. From the original VCAA notice, to the administrative and judicial appellate systems, the entire process of adjudicating new and material issues is inefficient and cumbersome, and should be modified to reflect a more modern process. For example, at the beginning of the new and material claims process, VAs notice requirements under the VCAA require (1) notice tailored to the reason(s) of the previous denial, and (2) an explanation of the type of evidence sufficient for reopening such denial. See Hupp v. Nicholson, 21 Vet.App. 342, 352-53 (2007); Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (citing Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). This effectively requires VA to perform a pre-adjudication analysis of the claim prior to issuing the required VCAA notice.

55

The notice requirement itself is further complicated by the current claims processing model. Only RVSRs generally possess the skill necessary for determining the reasons for a previous denial and the type of evidence required to satisfy the material element to successfully reopen the claim. Yet non-rating employees issue the notice letters. VA would be able to standardize all notice letters for Veterans attempting to reopen previously denied claims and ensure that such notice is delivered by the time VA receives a claim. In many attempts to reopen previously denied claims, VA undertakes partial development per its duty to assist rules even before the claim is reopened. At the decision stage, VA must review all of the old and new evidence to determine whether the new evidence, either by itself or in conjunction with the old evidence, may impact the outcome of the claim. In all respects, this constitutes a merits-based decision. When VA issues a decision that does not reopen a claim because the evidence submitted does not qualify as new and material, it receives NODs on many such decisions. For FY 2009 to 2010, VA received 5,183 NODs on cases denied where evidence submitted was determined as not new and material. The majority of new and material cases that are submitted to the Board on appeal are actually reopened because the Board determines new evidence submitted by the claimant does satisfy the correct evidentiary threshold. Those cases are usually then remanded for VA to undertake any additional development, followed by a merits-based decision. Because VA is essentially rendering a merits-based decision on all cases involving a determination of whether new evidence is also material, this proposal will lower the threshold for material to the point where any time VA receives new evidence (not a duplication of evidence), and such new evidence pertains to the previously denied issue, VA will render a merits-based decision. This will significantly lower the number of cases where a claim is not reopened due to evidence not being new and material. When such cases are further denied and appealed, the appeal will consider the merits of the claim rather than merely considering whether evidence meets a subjective threshold only for the appellate body to decide that it does. Despite such a lowered threshold for reopening a previously denied claim, many claimants will nonetheless continue attempting to reopen such claims on nothing more than a statement supported by no medical or lay evidence, such as: I wish to reopen my claim for service connection for XXX disability. In such cases, it is further proposed that VA issue an administrative letter informing the claimant of the new, and much lower evidentiary threshold, AND, that because his/her attempt at reopening a previous denial contained NO medical or lay evidence that pertains to such denial, his/her claim is not reopened. Finally, it is recommended that such administrative notice not constitute a decision open to appeal because the administrative notices (1) will not be a rating decision, because the case is literally not subject to reopening on NO additional evidence, and (2) this

56

proposition is supported by 38 C.F.R. 3.104. The previous denial, in cases where NO evidence is submitted in support of reopening such denial, constitutes a final and binding agency decision and shall not be subject to revision on the same factual basis except by a duly constituted appellate authorities or except as provided in 3.105 and 3.2600 of this part. 38 C.F.R. 3.104(a)(2010). If a claimant attempts to reopen a previous denial (with no additional medical or lay evidence) within the appellate period of that denial, then the request to reopen should constitute disagreement of the original denial anyway. This will ensure the claimant is afforded a proper avenue to a meritsbased review on appeal. OGC did not object to providing no appellate rights in such cases; however, OGC did advise that there would be certain litigation risks to such an approach. Further discussion would therefore be helpful. Considerations We expect no opposition from outside stakeholders, as it is difficult to view this proposal in any light other than Veteran-friendly. Opponents of this change may argue that claimants could continue reopening their claims repeatedly; however, that is essentially the current reality. The difference is that the currently practice is more complex than the new proposed recommendation. Following this change, no argument could be made that VA is required to tailor notice letters to new and material claims. Although, changes to VAs section 5103 notice made by the Veterans Benefits Improvement Act of 2008 may already have eliminated the tailored notice requirement for new and material evidence claims. No more appeals will be generated solely on the basis of a claimant having not submitted new and material evidence, just for that appeal to be granted and a meritsbased decision be rendered at a later point. This should make the claims process more efficient.

57

2.6

Amend VAs apportionment regulations

Introduction If proposed legislation under section 1.2 of this initiative is not passed, then the proposal described herein aims to amend certain apportionment regulations so that set statutory amounts are paid. This proposal will authorize apportionments to the spouse and/or children at the statutory amount payable to the eligible dependents without making hardship or income determinations, thereby bypassing the complex and time-consuming dual due process procedures normally associate with such issues. The proposed revision will also provide consistency in the adjudication of apportionment claims and improve the effectiveness of the adjudication process. VA should revise 38 C.F.R. 3.451 to authorize apportionments to the spouse and/or children at the statutory amount payable to eligible dependents without engaging in the current procedural delays. This action is necessary to maintain consistency in the adjudication process and to make the process more efficient and less subjective. The changes will reduce the workload and the amount of time spent on investigating the validity of apportionment claims and will therefore make the apportionment process more objective and fairer for the Veteran and claimant. See cost benefit analysis for section 1.2. Although the recommendation in this proposal would not result in the same amount of added efficiency as section 1.2 of this initiative, increased efficiency would nevertheless be realized. Background Apportionment of a Veterans Compensation: Regulations at 38 C.F.R. 3.453 provide that compensation will be apportioned based on the factors governing special apportionments in 38 C.F.R. 3.451. VA should remove apportionment of compensation from the types of benefits that may be specially apportioned under section 3.451 and amend current section 3.453 to provide a general rule that the amount of compensation that is apportioned to a Veterans dependent will be the statutory amount payable to the Veteran for the eligible dependent. We further propose that if there is more than one child, any amount payable for the children will be equally divided among the children. The only exception to this rule would be that the apportionment amount for a child attending an approved educational institution shall be the amount prescribed by 38 U.S.C. 1115(1)(F). In doing this, we propose to no longer make equity determinations regarding apportionments in claims for compensation. Instead, VA should standardize the process of apportionment for compensation by creating a bright-line rule that will provide the amount that VA pays to the Veteran for a spouse, child, or dependent parent to be apportioned.

58

The rates for apportionment of disability compensation generally will be equal to the rates of additional compensation for dependents established under 38 U.S.C. 1115. However, the apportioned amount payable to each child may not correspond precisely to the statutory amounts payable for children. In accordance with 38 U.S.C. 1115, the amount payable to a Veteran for one child is greater than the amount payable for each child in excess of one. We believe the apportionment amount to each similarly situated child should be the same. The proposed rule would therefore provide that, when there is more than one child, the amount payable for such children under section 1115 will be divided equally among the children. The only exception we propose to this rule would be for any amount payable for a child who is over 18 and attending an approved educational institution. In accordance with 38 U.S.C. 1115(1)(F), Congress authorized a higher payment for children over 18 who are attending school. We propose that an apportionment to such child will be at that statutory rate and will not be distributed among other children. The current amounts payable for children under 38 U.S.C. 1115 are available to the public on VAs web site. Justification VA spends an excessive amount of time and resources investigating income and other facts for purposes of making apportionment determinations in compensation cases. Implementing these proposed amendments would require far fewer VA resources, thereby freeing these resources to speed the adjudication of other claims, while simultaneously making the process more objective and transparent for Veterans and apportionees. The proposed revisions would improve the efficiency and effectiveness of the adjudication process and would provide a consistent way to resolve apportionment claims throughout the various regional offices. Further, basing apportionment amounts on the rates of payments for dependents authorized by statute is consistent with the purpose of 38 U.S.C. 1115, which indicates that a Veteran will be paid additional compensation for dependents. It is reasonable to believe that Congress intended that the Veteran would use the amount of the increase to support his or her dependents. We further propose to amend section 3.453 to indicate that VA will not apportion benefits under this section when a Veterans disability is rated less than 30 percent. The statute upon which the fixed amount to be apportioned would be based, does not allow VA to pay additional compensation for dependents to a Veteran who is rated less than 30 percent. As stated above, we intend that apportionment generally will correspond to amounts payable for dependents. Accordingly, we do not intend to apportion compensation where no payment is authorized for dependents. Further, in instances where the veteran is rated less than 30-percent disabled, and thus receives no additional amount for dependents, an apportionment would not permit payment of a reasonable amount to any apportionee, particularly if there is more than one dependent, and would be precluded by section 3.458. Therefore, we believe that it is

59

consistent with the overall scheme of apportionments to not apportion compensation paid to veterans rated less than 30-percent disabled. Considerations See section 1.2 for considerations.

60

2.7

Amend 38 C.F.R. 3.155(c) to mandate the use of VA Form 21-526EZ or alternate form

Introduction This proposal seeks to mandate the use of the VA Form 21-526EZ. This form is currently used for reopened claims, claim for increases, and secondary service connection claims. By mandating this form (in the same way VA mandates VA Form 21-526), VA is able to better communicate and collect the pertinent information needed from claimants up front, thereby avoiding confusion as to the specific issue being claimed, whether treatment has been received, and whether assistance is in fact needed to obtain private medical records. When combined with proposal 2.8, which proposes to attach required VCAA notices to certain benefits applications, the benefits to the Veteran and to VBA are remarkable. By mandating the use of VA Form 21526EZ, VA can significantly reduce development time. Implementing this change will require a regulatory amendment to 38 C.F.R. 3.155(c), which currently suggests that an informal claim is all that is required for a reopened or increased evaluation claim. In its review of this proposal, OGC agrees that VA has the authority to mandate claims forms for these types of claims. Preliminary analysis indicates that removal of paragraph (c) of this section would satisfy this proposal. It is important to note that although VA would mandate the use of the VA Form 21-526EZ, claimants would still retain the right to file an informal claim as described in paragraph (a) of this section. In reviewing this initiative, the OGC has concluded that VA may mandate a particular form for reopened, secondary, and increased evaluation claims. VA has the statutory authority to make VA Form 21-526EZ mandatory. The law states that [a] specific claim in the form prescribed by the Secretary [ ] must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C. 5101(a) (emphasis added). Justification This proposal facilitates specificity and clarity of the claimed issue, whether the claimant has been treated, and whether he or she wants assistance from VA to obtain private medical records. When combined with proposal 2.8, which proposes to attach the required VCAA notice to VA forms, the benefits to the Veteran and to VBA are noteworthy. Compensation Service realizes there would be logistical challenges and a stakeholder adjustment period while transitioning to the mandated use of certain VA forms and away from the many less-than-formal methods in which VA currently receives claims. However, with the proper communication and stewardship, such a transition could be

61

well received by VA stakeholders, especially when the extent of claims processing improvement and benefit to Veterans are understood. Claims received on informal routes of communication, such as on a VA Form 21-4138, or from a claimant letter, would serve as an informal claim. Eventually, claim submittals on the proper form would become the status quo, especially with an aggressive outreach program. In the meantime, any informal claims should be controlled under an EP not in the rating bundle. Considerations By making minor modifications to forms and improving certain communication to claimants in relation to those modifications, VA can realize significantly increased efficiency to this otherwise cumbersome process. Some logistical hurdles of mandating use of certain forms will be mitigated by the fact that private and VSO representatives represent a large portion of VA claimants.

62

2.8

Streamline VAs duty to notify claimants of information necessary to substantiate their claims by attaching the required notice on VA Forms 21526, 21-526B, 21-526EZ, 21-8940, 21-527, 21-534, and 21-8640

Introduction This proposal seeks to amend 38 C.F.R. 3.159 to allow VA to attach required notices to VA forms. VAs Adjudication Procedures Manual generally requires adjudicators to send a VCAA letter to the claimant notifying him or her of any information or evidence that is necessary to support their claims. The proposal described herein seeks to amend VAs current practice by attaching the required VCAA notices to VA forms that are utilized by claimants to submit their respective disability or death claims. By expanding the notification process used by the Fully Developed Claim program, where the claimant completes and submits a FDC certification along with the appropriate disability claim form, VA will experience major improvements in claims processing timeliness and accuracy for all rating-related claims. By attaching the VCAA notice to VA claim forms, VA will essentially initiate development before the claim is received in ROs instead of when the claim is nearly 2 months old. This will shorten the overall development time by eliminating VCAA letters and the required 30-day wait period in a large percentage of cases. In its review of this proposal, OGC indicated that amendment of section 3.159 to provide notice of VAs legal interpretation would minimize litigation risks associated with advanced notices. Further, OGC noted that H.R. 2383 will accomplish the desired change from this proposal. Background On November 9, 2000, Public Law 106-475, Veterans Claims Assistance Act, was enacted, which redefined VAs duty to assist claimants and mandated specific notice requirements to the claimant. Based on this law, VA has established procedures that require adjudicators to send VCAA letters to claimants upon receipt of a substantially complete claim. The letter to the claimant notifies him or her of any evidence that is necessary to substantiate their claim, including medical and lay evidence. The letter tells the claimant the information they must submit and information that VA will attempt to obtain on the claimants behalf. Also included in the notice letter is a VCAA Notice Response form on which the claimant may elect to have VA decide the claim as soon as possible if he or she has no additional evidence to submit. While the duty to notify applies to all claims, VA has modified its normal VCAA notice procedures in certain cases, such as those claims submitted through the Benefits Delivery at Discharge and, more recently, the FDC program. In these cases, VA ensures the claimant receives the required notice at the time he or she actually files the claim. To facilitate notice requirements, VA has introduced two new forms as part of the

63

FDC program. To participate in the FDC program, Veterans complete and submit an FDC Certification and VA Form 21-526EZ, Fully Developed Claim (Compensation), for a compensation claim, or a VA Form 21-527EZ, Fully Developed Claim (Pension), for a pension claim. These abbreviated application forms already include the required notification to applicants of all information and evidence necessary to substantiate their claims. Justification Significant improvements in the quality of VAs claims processing will be realized if this proposal to attach VCAA notices to VAs claims forms is implemented. One of the most common errors noted during national quality reviews involve improper VCAA notices. Attaching notices to the applications and requiring certification from the claimant will facilitate a more standardized and consistent practice of communication, thereby eliminating the need for an adjudicator to determine if a notice is required and/or what type of language should be incorporated into a notice letter. VBA can anticipate significant improvements in the speed of claims processing. Sharp reductions in the number of days it takes to complete development will be evident once the new procedure is well established in the Veteran community and once other VCAArelated improvements are implemented. Consider the current performance data table below. PA&Is National Dashboard -- End of April 2011
Pending Inventory of Claims 802,219 Control Time 10.5 days Development Initiation Time 47.1 days Development Time 131.3 days Total time from receipt of claim to Ready for Decision 188.9 days

By attaching the VCAA notice to VA claim forms, VA will essentially initiate development before the claim is received in the regional offices instead of when the claim is nearly 2 months old (10.5 + 47.1 = 57.6 days). This will shorten the overall development time by eliminating VCAA letters and the subsequent 30-day wait period. It is understood that many of pending claims would still require an initial development letter for some other reason, (i.e., special issue claim, private records, other claims information needed, etc.). However, even if VA did not have to send out initial development letters for 30 percent of its incoming rating claims (estimated to be over 1 million claims in FY 2011), this would equate to over 300,000 development actions that could be avoided, thereby significantly increasing work capacity and improving development time nationally by over 10 days. Considerations Certain DIC claims and claims to reopen previously denied benefits arguably require somewhat of a notice tailored to the facts of the case. However, the newly proposed regulations on VAs notification duties, as mandated by the Veterans Benefits 64

Improvement Act of 2008, will allow VA to standardize the notice for these two types of claims, and all others as well. It is therefore imperative VA expedite final promulgation of the new notice regulations. Some may question whether VA has authority to expand its practice of advanced notice like that provided in the FDC programour conclusion is that it does. VA has authority under 38 U.S.C. 501 to implement its own program related to the adjudication of Veterans benefits claims. 38 U.S.C. 501(a)(4) (Secretary authorized to "prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including . . . the manner and form of adjudications). Although 38 U.S.C. 5103(a)(1) requires VA to provide notice "[u]pon receipt of a complete or substantially complete application," the Federal Circuit held that VCAA requires only generic notice provided sufficiently in advance of an initial VA decision to allow the claimant to assist in developing the claim. See Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (notice described in [section] 5103(a) need not be veteran specific); Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007) (notice must be given to the claimant sufficiently in advance of the initial RO decision to enable the claimant to develop his case. . . . In this way, section 5103(a) ensure[s] that the claimants case is presented to the initial decisionmaker with whatever support is available.) citing Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). In light of the forgoing, and assuming that the notice a claimant receives upon receipt of an application by VA and the notice that a claimant receives in accordance with this proposal are the same generic notice, we believe that such a process will implement section 5103 consistent with Congress intent as interpreted by the Federal Circuit. In fact, with all things being equal, (i.e., standard notices), the advanced notice is actually far better for claimants because it allows them to initially submit complete claims, avoid unnecessary delays, and reap the benefits of a more efficient claims process by eliminating confusing and often repeated VCAA notifications that frustrate and confuse claimants. Despite the above argument being on solid grounds, VA should consider amending section 3.159 to either provide legal notice of VAs interpretation, in which case publication of a final rule will suffice, or follow notice-and-comment procedures in a rulemaking that thoroughly addresses the timing of VCAA notice. Then if challenged, VA will have the benefit of judicial deference regarding its own regulation. VAs OGC suggested that VBA establish a policy for identifying the date the advanced notice was sent for purposes of 38 U.S.C. 5103(b)(1) and 38 C.F.R. 3.159(b), which indicates the claimant has one year from the date of the notice to send in the evidence. It is suggested that the one-year period begin when VA has actually received the application for benefits. OGC also raised the issue of incorporating a certification requirement that the claimant must make stating that they acknowledge having received and read VAs notice.

65

2.9

Amend 38 C.F.R. 3.155 to infer and award benefits for certain claims, instead of inviting the claim

Introduction VA proposes to amend 38 C.F.R. 3.155 to reverse the current policy of directing employees to invite claims for certain disabilities. Rather, in specific circumstances, VA should infer and award the benefit based on the evidence of record. This would provide benefits to Veterans much faster and reduce incoming claims by as much as 80,000 per year. OGC indicated it would be preferable to implement this policy through rulemaking because any such policy affects the scope of a claim. Background Raters are currently instructed as shown in M21-1MR IV.ii.2.A.1.a, and M21-1MR III.iv.6.B.6.a, that they are restricted from inferring and granting claims. Rather, they invite claims, such as when they notice a presumptive disability in a qualified Veterans record. VA normally receives formal claims that are invited by VA shortly thereafter. Once received, these claims are subject to all applicable law concerning notice and duty to assist. This is despite the fact that VA has the authority to grant the condition at issue on its own initiative and immediately award the benefit, thereby avoiding the delays caused by the development of the subsequently received claims. Justification While VA should invite many types of claims/issues noted in the record, there are issues that should not fall under this instruction. Presumptive and chronic disabilities noted in service treatment records are two of the easiest types of issues for raters to infer and grant as long as there is evidence on which to rate the disability. Because VA has received no claim in these cases, the section-5103 notice and duty to assist may not apply. In fact, if VA recognizes a benefit for which a Veteran qualifies, and awards that benefit, then section does not apply. Conducting business in this manner is beneficial for all involved. Veterans receive a benefit based on a proactive approach, when the Veteran is unaware of entitlement. VA avoids the lengthy development process for the claim that it would otherwise invite. Considerations OGC noted that implementing regulations should be stated in discretionary, rather than mandatory, terms in order to authorize VA personnel to grant benefits absent a specific

66

claim when they discover a basis for doing so, without imposing on VA an affirmative requirement. This regulatory change should be promulgated along with initiative 2.8, which also proposes changes to 38 C.F.R. 3.155. A separate subsection and a modification of the title should be considered in implementing this regulation change. Approximately 120 raters were polled during the Inter-Rater Reliability Study in May 2011 and asked how often they identified unclaimed chronic in-service or presumptive disabilities, which warrant service connection, while processing other claims. The results were as follows: 55.8 percent stated once a month; 31.6 percent stated 5-10 times per month; 3.3 percent stated 10-20 times per month; and, 4.1 percent stated over 20 times per month. Noting some limitations in the study: 120 raters surveyed out of 2,882 RVSR/DROs equal approximately 95-percent confidence level and plus/minus 8.7 confidence interval. Therefore, while this study is statistically significant, there is a margin of error that we would prefer to be smaller. Unfortunately, the survey was interrupted before we could poll more raters. The foregoing percentages, when averaged nationwide, equal approximately 153,800 cases where issues are identified that are either chronic in nature or presumptive. We further realize there are other benefits that could be award based on other issues, but to keep the data valid and conservative, we chose to limit the inquiry to these two types of issues. We then asked what actions raters take when they identify these issues. Raters solicit the claim from the Veteran but do not continue the EP 61.6 percent of the time. Five percent stated they solicit a claim from the Veteran and continue the EP, for a total of 66.6 percent soliciting a claim from the Veteran. This equates to VA soliciting approximately 100,000 claims per year. If 80 percent respond with a claim, then 80,000 cases must be processed through the normal claims process. On the premise that these numbers hold true, VA could reduce its receipt of claims by up to 80,000 cases per year by reversing this inefficient process.

67

2.10 Amend 38 C.F.R. 3.159 to address instances when private providers refuse to honor VA Form 21-4142 Introduction This proposal seeks to amend 38 C.F.R. 3.159(c)(1) to add a provision that expressly states VAs policy when a provider refuses to provide VA private records identified by a claimant on a VA Form 21-4142. This policy is needed based on the frequency by which custodians are refusing to honor VBAs medical release form and the significant delays that are associated with affected claims. Custodians refuse to honor VAs release form because of a multitude of reasons to include, but not limited to: 1) they perceive the form lacks HIPPA compliance, 2) the request is not on their own form, and 3) they believe the form does not conform to certain State laws. In such examples described above, any future efforts to obtain records from providers would inevitably be unfruitful. Therefore, a clear policy to address instances when custodians refuse to honor VBAs release form is needed. In instances where providers refuse to honor an approved and properly filled out medical release form, this proposal allows VA to communicate to the claimant that the provider has refused to provide records and that he or she has 15 days to furnish records before VA makes a decision on their claim. OGC reviewed this proposal and agreed that an express provision in section 3.159(c)(1) be added to ensure defensibility of our procedure. In implementing this proposal, changes to VAs Adjudication Procedure Manual will also be required. Background Currently, VA uses a completed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, to obtain confidential medical information from private providers6. This form is available through Modern Awards Processing and Development as well as the VA forms website. When a claimant identifies private medical records in support of his or her claim but does not provide a medical release form, the RO will send the VA Form 21-4142 to the claimant with its initial section 5103(a) notice7. Upon receipt of the completed form, VA then requests the records directly from the provider or custodian. A common problem encountered by ROs is that the provider or custodian refuses to honor the VA Form 21-4142 or refuses to comply for other reasons. In a recent query,
The procedure manual currently refers to non-VA providers. See M21-1MR, III.iii.1.C.14.e. However, this proposal pertains to any non-Federal provider, including private and State providers. We use the term private for simplicity. 7 The Veterans Claims Assistance Act of 2000 (VCAA) amended 38 U.S.C. 5103 as well as adding section 5103A. There is a growing element in Compensation Service that believes VA should refer to the notice required under the applicable statute rather than to VCAA notice.
6

68

OFO asked ROs to report the names and reasons providers gave for refusing to honor the VAF 21-4142. There appear to be three major causes of lack of compliance with VAs initial requests for records: 1) The information showed that 105 providers or custodians simply refuse to accept any release of information other than their own. 2) Other providers or custodians state that VA Form 21-4142 does not conform to State law. 3) Other providers believe the VA Form 21-4142 does not comply with the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191. Some providers or custodians also expect a fee for medical records. VA does not pay such fees. See 38 C.F.R. 3.159(c). Other providers require a wet signature and will not honor a faxed or photocopied authorization form. This too slows down the claims process and more significantly hinders VAs efforts to automate development and claims processing. VCAA and 38 C.F.R. 3.159(c) The VCAA added 38 U.S.C. 5103A, which provides that VA must make reasonable efforts to assist claimants in obtaining evidence necessary to establish their claims. The statute further states that VA is not required to assist if no reasonable possibility exists that assistance would help to substantiate the claim. Paragraph (b) of section 5103A addresses private medical records in particular and provides that after VA has made such reasonable efforts, VA will notify the claimant of the records it has been unable to obtain and describe the efforts made to obtain them. In promulgating its regulations implementing section 5103A, VA has further defined reasonable efforts to obtain private medical records at 38 C.F.R. 3.159(c): Reasonable efforts generally consist of an initial request and one follow-up request, unless follow-up would be futile. However, if VA receives information showing that additional requests to the same or a different provider could yield favorable results, then reasonable efforts include the original request and one additional request to the original source; or an initial request and one follow-up request to the newly identified source. Further, 38 C.F.R 3.159(c)(1)(i) stresses that claimants must cooperate with VAs reasonable efforts. The regulation states as follows (emphasis added): The claimant must cooperate fully with VAs reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the

69

existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. The regulation does not state any consequence for a claimants failure to provide the necessary information; however, there is a strong implication that without the information, VA cannot reasonably request the records. Recommendation: When providers or custodians refuse to honor VAs initial request for records for reasons that would render follow-up requests futile, then VA will not be required to make a follow-up request. Rather, VA will contact the claimant and allow him or her 15 days to provide VA with the requested records. It would also be communicated that after 15 days, VA could decide the claim. VA should amend 38 C.F.R. 3.159(c)(1) to indicate that a follow-up request is not required if a custodian refuses to honor an approved and properly filled out VA medical release. A proposed method for amending section 3.159 is, as follows: Add at end of the second to last sentence of paragraph (1) after futile, such as in cases where the custodian refuses to honor an approved and properly filled out VA medical release form. A manual change that mirrors the above regulatory change will be required. It shall further include procedures to contact the claimant and allow him or her 15 days to provide VA with the requested records, and that after 15 days, VA could decide the claim. Justification Specifying this issue in the regulations is justified because of the frequent refusals by custodians to honor VBAs medical release form. The development cycle time is the longest and most difficult to shorten (currently over 4 months). VA must take aggressive actions to shorten this cycle time, which will assist VBA in meeting the timeliness strategic target of 125 days. This proposal represents an aggressive but also logical step in addressing development time delays. VSRs are reluctant to cease development of a claim even when there is a strong indication that further development would be futile. By specifying instances in regulations, VA prevents such instances of over-development; particularly, futile attempts as such development. Considerations Although it could be argued that this recommendation may be viewed as potentially negative in relation to VAs duty to assist claimants, the reality is that there must be

70

logical stopping points to VAs efforts to assist claimants especially when such efforts would be futile. Furthermore, this proposal must be considered with other VCAA enhancements contained herein, which are aimed at streamlining the VCAA process and enhancing the overall claims processing efficiency. Because VA fails to receive many of these records initially, it then engages in sometimes far more exhaustive efforts to obtain such records than was ever intended by law. As a result, a Veterans claim can languish for several months because of these efforts. In many of these cases, VA may already have enough information to resolve the claimed issue. However, these exhaustive and futile efforts prove to be harmful to Veterans because of the extended time on their claims.

71

2.11 Amend 38 C.F.R. 3.1600 (and other pertinent regulations) to streamline payment of burial claims for surviving spouses Introduction This proposal seeks to amend 38 C.F.R. 3.1600 and other pertinent regulations to allow VA to automate burial payments at a flat rate for surviving spouses. This payment would apply to nonservice and service connected burial allowances, and plot allowances. These amendments will streamline the burial claims process for a significant portion of the burial claims received by Regional Offices. More importantly, it will allow VA to improve the level of service provided to surviving spouses who are entitled to burial benefits. The two major changes from this proposal are, as follows: 1) All surviving spouses entitled to a burial allowance will receive the maximum (rather than up to the maximum) amount of burial and plot allowance, as specified in 38 U.S.C. 2302(a)(2)(B) and 2303(b)(2). 2) All surviving spouses will automatically receive all entitled burial allowances without the need to submit an application. For example, a Veteran dies of a service connected disability and a claim for DIC along with a death certificate is received in the regional office. A VSR verifies entitlement, completes an electronic action similar to the Month of Death process, and the surviving spouse will automatically receive a burial allowance for $2,000.00. In this instance, no claim is required and no development actions are necessary. Background For service connected deaths: 38 U.S.C. 2307 provides that the Secretary shall pay burial and funeral expenses incurred in connection with the death of a Veteran in an amount not exceeding $2000. 38 C.F.R. 1.600(a) mirrors the statutory language by providing that an amount not to exceed the amount specified in 38 U.S.C. 2307 may be paid. For nonservice connected deaths: 38 U.S.C. 2302(a)(2)(B) provides that the Secretary may pay a sum not exceeding $300 to cover the burial and funeral expenses of the deceased Veteran. Section 2303(a)(2) provides that the Secretary shall pay a sum not exceeding $300 as a plot or interment allowance. VAs implementing regulations, 38 C.F.R. 1.600(b) and (f), mirror the statutory language by stating that payable amounts for burial and plot allowances may not exceed the amounts specified in 38 U.S.C. 2302 and 2303 respectively. As noted in the above two paragraphs, the statute and regulation provides discretion to VA to pay up to a maximum amount of burial benefits. The current maximum rates that are payable are, as follows:

72

Burial Allowance: $300 Plot Allowance: $300 Service Connected Death Allowance: $2000

Effective October 1, 2011, the maximum rates payable will be increased, as follows: Burial Allowances: $300 (however, a new rate of $700 applies to Veterans who died while hospitalized by VA) Plot Allowances: $700 (for all eligible Veterans) Service Connected Death Allowance: No change

Currently, Regional Offices must develop a significant number of burial claims when an application (VA Form 21-530) is received. The development consists mainly of VA requests for or clarification of the receipts that show the claimant made the burial/plot payment in whole or in part. VA administers the payments once all evidence is assembled and eligibility is verified. In FY 2010, VA processed 139,247 burial claims with the average days to complete of 76 days8. Based on FY 2010 Annual Benefits Report, which indicated that the total number of new DIC and Death Pension awards for surviving spouse in FY 2010 was 67,471, VA concludes that at least this same number would be eligible for automated burial payments. In fact, a significantly higher number would be eligible since many surviving spouses not eligible for DIC or Death Pension would be eligible for burial benefits. Based on the above data, VA estimates that approximately 85,000 out of the 139,247 FY 2010 burial cases would contain an established surviving spouse of record. The estimated number of days required to process these 85,000 burial claims under the new automated process for surviving spouses would be 7 days. This would positively affect the overall timeliness of burial claims processing by 42 days from 76 days to 34 days. Justification Because the current burial allowances are not adequate to cover the full extent of burial expenses in todays economy, VA generally issues the maximum benefit amount when a burial claim is received, notwithstanding the fact that development was completed in a significant number of the claims. By streamlining and automating burial and plot payments for eligible surviving spouses, VA realizes a significant increase in the overall efficiency by which burial claims are processed. VA will avoid the lengthy process of controlling and developing claims for approximately 60 percent of the 140,000 burial claims received in a year.

VETSNET Operational Report data obtained on August 9, 2011

73

VA improves its service to eligible surviving spouses as they will receive faster delivery of benefits and will not be required to fill out an application. Because the widow or widower will receive benefits quickly, they can pay the funeral homes in a more timely fashion and prevent incoming claims from funeral homes. In these instances, funeral homes will no longer need to file a claim to VA and will be able to issue a single bill to the surviving spouse for the full expenses. It should be noted that under current circumstances, funeral homes generally must bill the widow or widower even after receiving VA burial funds (since burial expenses exceed VA burial allowance amounts). Considerations Normal processing will continue for burial claims when no surviving spouse exists. Automating payments in certain instances will not be possible. When transportation costs apply, VA will still be required to determine the exact amount that can be reimbursed. Thus, the claim for reimbursement would be received either through a statement or application from the surviving spouse or funeral home. Based on the plot allowance rules, (e.g., cannot be paid for those buried in national cemetery), VA will need to develop procedures to ensure this payment is properly paid. This initiative is part of the overall thrust to enhance the delivery of benefits to surviving spouses. (See 1.3 and 3.2. Also, consider Month-of-Death benefits that were recently automated).

74

3 M21 Manual or Other Policy/Procedures

3.1 Intermediate ratings: reverse the current practice of prohibiting intermediate ratings that do not include at least one grant of benefits

Introduction This proposal would reverse the current policy that RVSRs only produce intermediate ratings that include one or more grants. Under current VA procedures (based on M211MR, Part III.iv.6.A.1), RVSRs grant benefits at the earliest possible point in the claims process. This procedure is critical in providing financial support to Veterans. The proposals addressed the unintended consequences that occur because of issuing benefits in this manner, (i.e., those benefits granted on an intermediate rating). This proposal does not negate VAs policy to expedite benefits through intermediate ratings. Instead, it refines the practice while maximizing claims processing efficiency. OGC reviewed this recommendation and has no legal objection. Specifically, VA should allow RVSRs to produce intermediate ratings that include denials only, as well as grants, as long as the evidence is sufficient to decide those issues. VA should also establish a national policy to require that a claim be returned, if possible, to the RVSR who completed the intermediate rating. This will eliminate duplicate work required if an RVSR reviews a claims folder that was initially reviewed by another RVSR prior to deferral. This approach will ultimately diminish the time it takes to address the remaining issues once the required development is complete. The current policy prohibiting intermediate ratings that include only denials has created a significant inefficiency in Veterans Service Centers. RVSRs spend inordinate amounts of production time reviewing claims that ultimately must be deferred because the claim requires additional development. If the claim that must be deferred were a simple one-issue claim, then the impact of this practice would be minimal since the RVSR would only invest time reviewing a single issue. However, because of the increasing number of issues per claim, raters are obligated to adjudicate several issues to determine whether there is a benefit that can be granted even if the first issue reviewed cannot be rated. This proposal permits denials on intermediate ratings and provides consistent work credits and claims assignment to RVSRs and will increase efficiency while improving employee morale and rating accuracy in the Rating Board. Background The current practice of granting benefits at the earliest possible stage of the claims process requires RVSRs to review every issue of the Veterans active claim. In this review process, RVSRs produce partial rating decisions when a benefit can be granted. If there are other claimed issues that cannot be granted because of incomplete development, RVSRs must defer these issues and continue the active claim. RVSRs

75

invest substantial amounts of time in these reviews only to discover in many cases that no benefits can be awarded. This results in a deferral of all claimed issues because VAs current policy prohibits intermediate ratings when no benefits can be granted. Consider the following scenario: RVSR reviews a claim consisting of nine issues. After adjudicating the first two issues as denials, the RVSR discovers that he or she cannot rate the third issue because the associated VA examination was insufficient and must be returned to the examiner. In this case, the RVSR must still review the other six issues to determine if one or more can be granted. If no issues can be granted, all nine issues must be deferred until the one issue is made ready to rate. In the above example, the entire decision must be deferred despite the fact that the RVSR essentially adjudicated all issues of record to determine if a benefit could be granted. Since VA currently prohibits the release of intermediate ratings for denials, a significant inefficiency results from this practice. Work completed on the case cannot be issued to the claimant, so the RVSR must discard the decision and re-adjudicate it later in its entirety when the required evidence on the one issue insufficient development is received. The work cannot be preserved in RBA 2000 since the decisions are not final. As an alternative, some RVSRs may save work in a separate format so that it can be pasted back into the RBA system at a later time, or may keep hand-written notes in the hope that the case is returned to them for final adjudication. Either of these described alternatives is labor intensive and counterproductive, but unfortunately, they represent a common scenario in Veteran Service Centers. There is also no guarantee that the claim will be finally adjudicated by the same RVSR who completed the initial review. The amount of time spent on the initial review of the claim may be wasted, as another RVSR will end up adjudicating the claim when it is finally ready to rate. Again, the inefficiency described here is not created by VAs policy of granting at the earliest point possible, but rather with the policy that intermediate ratings must include at least one grant of benefits. This practice is illogical for another reason. It is particularly illogical in light of the fact that while VA cannot issue intermediate ratings without at least one issue decided favorably, VA routinely issues decisions where no issues are decided favorably. In addition, ROs do not have a consistent policy regarding work credit for intermediate ratings. At ROs that do not provide any credit for deferrals or intermediate ratings, RVSRs are less motivated to complete cases requiring these types of decisions. These cases will fall to the bottom of the RVSRs priority list, increasing processing time unnecessarily. Allowing intermediate ratings on cases involving only denials increases the number of intermediate ratings an RVSR must complete. In order to mitigate the effect of this on the RVSRs production, and to maximize the increase in efficiency of

76

this new procedure, a national policy for work credit and claims assignment should be established for intermediate ratings. Justification The unintended consequences associated with the well-intended practice of granting at the earliest possible point can be mitigated if this recommendation is implemented. There are many benefits to this suggestion. For example: It increases claims processing efficiency in that it allows RVSRs time-consuming review of claims to result in a decision being issued in almost all cases (to exclude claims where a full deferral is necessary due to insufficient development or some other deficiency in the claims processing). RVSRs would approach cases with a different philosophy because their efforts would not be potentially wasted, (i.e., result in a deferred rating of all claimed issues). This new approach will ultimately diminish the time it will take to finally address the remaining issues once the required development is complete. It would also increase Rating Board morale because raters would be receiving work credits that they do not currently receive. Currently, raters take a lesser work credit (i.e., for a deferral). It increases rating accuracy. Raters will be less likely to rate on insufficient evidence since they will be authorized to release partial ratings with denials and, as a result, receive the deserved work credit for completing those partial ratings. Related Recommendation Develop a national policy for work credit and claims assignment that promotes consistency and incentives for RVSRs to process intermediate ratings. Compensation Service should work with OFO to ensure a fair and equitable system of work credit is developed and implemented in all regional offices. VA should also establish a national policy to require that a claim be returned, if possible, to the RVSR who completed the intermediate rating. Considerations There may be a perception that VA is rushing to deny claims or that VA is unjustifiably issuing multi-issue decisions with, for example, one issue deferred with the rest denied. Such opposition is fallacious because it ignores the fact that VA would be issuing the decision anyway on all issues had it not been for the one or more deferred issues. This recommendation is more Veteran-friendly than the current practice because it more quickly issues a decision to the Veteran on many issues for which he/she may have been waiting for an extended period of time. The Veteran can then respond to such denials, if necessary, in a timelier manner.

77

Considerable time currently wasted by this process will be used constructively following this change. Compensation Service polled approximately 120 RVSRs as part of the Inter Rater Reliability Study in May 2011. When asked how many rating decisions they deferred per month, 36 percent said between 5 and 10; 33 percent said between 10 and 20, 9 percent said over 20; and, 5 percent said over 30. These figures equate to a rough estimate of 25,000 to 30,000 deferred cases per month nationally, or about 330,000 cases annually. (95-percent confidence level and plus/minus 8.7 confidence interval) However, an analysis by the Office of Strategic Planning indicated that 44 percent of all cases are returned as ready to rate more than once, which equates to about 485,000 cases based on 1.1 million decisions per yeara difference of 155,000 cases, many of which are not rated because of this practice. Ironically, 76 percent of those raters stated that the deferred case is either returned to them some of the time or none of the time, thereby resulting in significant amounts of wasted production time. Approximately 75 percent either agreed or strongly agreed that the current practice should be changed.

78

3.2

Allow VSRs to administratively award certain DIC awards and Dependents Educational Assistance (DEA)

Introduction Expanding rating capacity is critical to VBA in its efforts to reduce the rating-related inventory. To this end, VA should implement internal procedural changes to allow VSRs to administratively award certain benefits that are currently awarded by a formal rating decision. This will free up more RVSRs to focus on disability claims and enhance the overall efficiency of the claims process. There are no statutory or regulatory impediments to this proposal. Formal procedural changes to M21-1MR and a national training initiative will be required for implementation of this proposal. Enhanced safeguards will also be implemented to prevent potential fraud. The 3-part proposal described below will eliminate nearly 30,000 referrals to the rating board per year, thereby allowing approximately 22 RVSRs to be redirected to other critical rating workload. This increased administrative efficiency will result in the completion of an additional 15,000 disability rating claims per year nationally. This business change also provides an opportunity to automate certain DIC awards or DEA eligibility. This is similar to month-of-death payments that are generated when First Notice of Deaths are processed. Legal Analysis from Office of General Counsel The Office of General Counsel provided a legal analysis of the three issues within this proposal, and no legal objections were raised. OGC concluded that the manual may be changed, as proposed, to implement the three issues below. The following excerpt is provided by OGC: The Under Secretary for Benefits [] has authority to designate the categories of employees within VBA that will decide certain types of claims. This includes designating VSRs as authorized to decide DIC claims under section 1318. See 38 U.S.C. 306(b) (providing that the USB is responsible for the operations of VBA); 38 C.F.R. 2.6(b)(1) (delegating to the USB authority to act on all matters assigned to the Veterans Benefits Administration . . . and to authorize supervisory or adjudicative personnel within his/her jurisdiction to perform such functions as may be assigned); 38 C.F.R. 3.100 (delegating to the USB and supervisory or adjudicative personnel within VBA the authority to make findings and decisions under the applicable laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits under all laws administered by the Department of Veterans Affairs governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of Compensation and Pension Service).

79

Nothing in the statutes or regulations governing DIC precludes a VSR from making a decision as to DIC by directing that a specific entity such as a rating board or a particular official decide these claims. Compare, e.g., 38 C.F.R. 4.16(b) (providing that rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section). Before VBA amends or rescinds a procedure in the M21-1MR, it must be determined whether the current provision is a substantive rule rather than merely an internal procedure. In VAOPGCPREC 6-2000, we analyzed whether certain provisions of the M21-1 Manual constituted regulations binding on VA. Summarizing the law regarding whether a manual provision was equivalent to a substantive rule, we stated that a provision in a VA manual constitutes a substantive rule when the provision effects a change in law, affects individual rights and obligations, or narrowly limits administrative action. Such a provision may create enforceable rights in a claimant. However, [m]anual provisions that merely interpret a statute or regulation or provide general guidance as to the procedures to be used in the adjudication process do not create enforceable rights. The provisions in question do not change law or affect individual rights and obligations such that they constitute a substantive rule binding on VA. Because the manual provisions governing the procedures for determining entitlement to DIC under section 1318 are not a substantive rule, they may be rescinded without notice and comment rulemaking. For the reasons expressed above, we have no legal objection to this change to the Manual. Issue One: Implement a change to M21-1MR IV.iii.3.A.2.e to allow VSRs to award DIC under 38 U.S.C. 1318 (DIC 1318). Under 38 U.S.C. 1318, VA is authorized to pay DIC to certain survivors of Veterans whose death was not caused by service-connected disability(ies) in the same manner as if the death were service-connected, if a Veteran was in receipt of, or entitled to receive, disability compensation for a service-connected disability which was totally disabling for certain specified time periods. DIC under section 1318 is paid to a surviving spouse or children in the same manner as if the death were service-connected, if a veteran was in receipt of, or entitled to receive, compensation for a totally disabling SC disability: 1. For ten or more years immediately preceding death;

80

2. Continuously for a period of not less than five years from the date of separation from service until death; or, 3. For a period of not less than one year immediately preceding death for a former prisoner of war who died after September 30, 1999. VAs current practice requires all entitlement decisions regarding benefits under section 1318 to be determined by the rating activity in a formal decision. Because the requirements for DIC 1318 are straightforward and require minimal judgment or evaluation by a decision maker, VA should implement a change to the above-stated manual citation to allow VSRs to award DIC 1318. In completing eligibility requests from the VHA Health Administration Center for purposes of establishing entitlement to CHAMPVA, VSRs routinely review Veterans records to determine if the Veterans had a permanent and total disability at the time of death (Ref: M21-1MR IX.i.4.2.d). This is similar to the current reviews conducted by the rating activity for purposes of establishing entitlement to DIC 1318. Note: RVSRs will continue to adjudicate DIC 1318 denials and other cases that are more complex in nature. PA&I data revealed DIC 1318 entitlement was granted in 3,137 cases in FY 2010. In addition, 3,824 cases that were awarded DIC under 38 U.S.C. 1311 due to service connected death were identified as having a combined 100-percent disability of record or entitled to Individual Unemployability at time of death for the required time under section 1318. These 6,961 cases represent the potential number of cases that can be administratively awarded by VSRs, thus avoiding initial referral to the Rating Board. By authorizing VSRs to adjudicate DIC under 1318 issue, the number of hand-offs is reduced, timeliness of benefits delivery is improved, and RVSRs can be redirected to other critical workload inventory. By bypassing the rating activity for 6,961 DIC grants, and allowing administrative grants, VBA realizes increased claims processing efficiency. This will free up approximately 5 full time RVSRs, thereby allowing VBA to redirect these individuals to address other critical workload inventory. This increased administrative efficiency will result in the completion of approximately 3,480 additional rating disability claims per year nationally (DIC rating credit is .5 versus 1 for a disability rating claim). Issue Two: Change to M21-1MR IV.iii.1.1.f to allow VSRs to award DIC under 38 U.S.C. 1311 in certain cases. Current VA procedures require the rating activity to determine entitlement to DIC under 38 U.S.C. 1311. VA proposes to implement a procedural change to allow VSRs to administratively grant DIC under section 1311 in cases where a service-connected condition is the principal cause of death of the Veteran as listed on a death certificate.

81

38 C.F.R. 3.312 provides that the death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. This proposal will provide VSRs authority to adjudicate DIC claims in which the service-connected condition(s) are clearly identified by the facts and circumstances of the Veterans death, as the primary cause of death. RVSRs will continue to adjudicate DIC cases where a service-connected condition(s) is found to be a contributory cause of death. Furthermore, RVSRs must render all DIC denial decisions unless such decisions are administratively denied under current practice, (i.e., dependency not established, service not verified, etc.). The benefits of allowing VSRs to grant DIC under section 1311 outweigh the risks. RVSRs routinely grant service connection for cause of death on a primary basis by reviewing a single piece of evidence, (i.e., death certificate) and conducting a simple analysis of the facts of the case. With minimal training and oversight, VSRs can assume jurisdiction of these types of DIC claims. PA&I data revealed DIC 1311 entitlement was granted in 28,433 claims in FY 2010. Although a breakdown of grants based on primary versus contributory cause of death is not available at this time, Compensation Service estimates that 80 percent, or 22,746 cases, were granted because a service-connected condition was identified as the primary cause of the Veterans death. By bypassing the rating activity in 22,746 DIC grants, and allowing administrative grants, VBA realizes increased claims processing efficiency. This will free up approximately 17 full time RVSRs, thereby allowing VBA to redirect these individuals to address other critical workload inventory. This increased administrative efficiency will result in the completion of an additional 11,373 rating disability claims per year nationally. Issue Three: Change to M21-1MR IX.ii.2.1.c to allow VSRs to award Dependents Educational Assistance under 38 U.S.C. Ch. 35. The current VA procedures require the rating activity to determine basic eligibility for DEA for a child, spouse, or surviving spouse(s). For the same reasons stated above under issue one, VA proposes to implement a procedural change to allow VSRs to administratively grant eligibility for DEA. 38 U.S.C. Chapter 35 requires: Permanent and total service-connected disability (either a combined evaluation of 100 percent or a total rating due to individual unemployability, both with no future examination); Service connected death; or, Permanent and total service connected disability at the time of death.

82

Under this proposal, a large percentage of the nearly 30,000 cases (noted under issues 1 and 2) will no longer require an RVSR to adjudicate the DEA issue. An additional number of cases will also no longer need to be referred to the Rating Board for a decision. This includes cases that require a formal rating decision for a finding of P&T evaluation during the lifetime of a Veteran. The P&T requirement is needed for entitlement to DEA. No data is available on the number of cases referred to the Rating Board to resolve a single DEA issue. Considerations Surviving spouses entitled to death benefits will receive such benefits much faster than the current process allows. This proposal will primarily affect PMC stations, which will save valuable resources to redirect to other mission-critical priorities. This business change also provides an opportunity to automate certain DIC awards and DEA eligibility upon the death of a Veteran. This is similar to month of death payments that are generated when FNOD are processed. Although this proposal shifts more work onto VSRs, it should be noted that the implementation of other changes, (e.g., VCAA modifications) will effectively increase the processing capacity of the VSRs.

83

3.3

Amend M21-1MRI.1.C.6.d by reducing the initial 30-day waiting period for private records to 15 days, and by removing the current 10-day waiting period

Introduction VA proposes to amend M21-1MR.I.1.C.6.d, which pertains to waiting periods after making requests for non-federal or private records. This proposal will modify waiting periods to allow 15 days (instead of the current 30 days) for a response to VAs initial request. It further proposes that VA will allow 15 days for a response to a follow-up request (instead of the current 10 days). VA will continue processing the claim, (i.e., ordering examination, issuing interim rating, etc.) as soon as the second request is sent, which is consistent with the current procedure, as provided in M21-1MRI.1.C.6.d. VA will not deny benefits on any claim until the second 15-day period has elapsed. Reducing the waiting period and allowing regional offices to continue processing a claim as early as the 16th day after the initial records request is critical to achieving the 125day goal for rating related claims. Because VA will continue to make follow-up request after the initial 15 days (either through a phone call or a second letter as provided in M21-1MR.I.1.C.6.c), the congressional intent that VA make repeated efforts to obtain records is followed. Furthermore, VA would still notify the Veteran upon issuance of a second request of VAs actions as well as that if evidence comes in within one year, the effective date for an award of benefits can be established as of the original date of claim. The Office of General Counsel reviewed this proposal and has not identified any current statutory or regulatory impediments. Based on OGCs comments, the proposal has been amended to emphasize that VA will not deny a claimed issue after a single request for private records. Background As part of VAs Duty to Assist statute at 38 U.S.C. 5103A, Congress mandated that VA shall make reasonable efforts to assist a VA claimant in obtaining relevant records. Congress did not elaborate on what constitutes reasonable efforts in terms of numbers of requests and waiting periods. VA implemented the law by promulgating regulations in 38 C.F.R. 3.159(c)(1) that indicates reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow up request. VA further published guidance regarding reasonable efforts in its Adjudication Procedure Manual, to allow 30 days for a response to an initial request for records and an additional 10 days for a response to a follow-up request. Under the current procedures, the earliest VA can continue processing the claim when the initial request proves unfruitful is after 40 days from the initial request.

84

VAs duty to assist, as described above, is contingent upon VA providing claimants a VCAA notification as described in 38 C.F.R. 3.159(b) prior to any requests or attempts to obtain evidence. This VCAA notice also notifies the claimant that if evidence comes in within one year, the effective date for any award of benefits can be established as of the original date of claim. The legislative history of Public Law 106-475, Veterans Claims Assistance Act, shows the following in reference to what constitutes reasonable efforts to obtain evidence: Proposed subsection (b) of the new section 5103 clarifies the Secretarys obligation to assist a claimant in obtaining evidence that is relevant to a particular claim. The requirement in section 5107 that the claimant has the burden of proving entitlement to benefits would not be changed by this language. In using the term reasonable efforts to describe the Secretarys obligation to assist in obtaining evidence, the Committee expects the Department to use a practical approach to assisting a claimant in obtaining evidence. That is, if the claimant has adequately identified the source of the evidence and has given whatever permission is required for the custodian to provide such evidence the Committee expects the Secretary to make repeated, but not necessarily exhaustive, efforts to obtain the evidence. In this regard, the Committee notes that one effort to obtain evidence would be clearly inadequate and that four efforts, except in an unusual case, would be exhaustive. Subsection (b) would also require the Secretary to provide notice to the claimant if the effort to obtain evidence is unsuccessful and briefly explain the Secretarys efforts to obtain such evidence, describe any further actions to be taken by the Secretary, and allow the claimant a reasonable opportunity to obtain the evidence before the claim is decided. H.R. Rep. 106-781, page 10 Justification It is clear from the plain language of 38 U.S.C. 5103A and its legislative history that Congress envisioned more than one attempt to collect evidence unless a negative response is received or a subsequent attempt would be futile. There is, however, no statutory requirement to wait a certain amount of time before sending a second request for evidence. Given VAs current processing delays, it is reasonable and practical therefore to make a second attempt to obtain evidence after 15 days rather 30 days. Based on operational knowledge and experience, if a doctors office has not responded to VAs request for records within 15 days, they generally do not respond in 30 days. By making a second request to the custodian of the records through a phone call or letter after 15 days, the urgent need for the requested records will be more clearly illustrated and more likely to produce positive results. It furthermore empowers adjudicators to take quicker actions on claims but yet does not harm the Veteran. This

85

procedural change is paramount in VAs ability to complete disability claims within 125 days. Section 5103A requires that if VA cannot obtain evidence, then the claimant must be notified of what efforts the Secretary made to obtain the records, and what further actions would be taken on the claim. Under this proposal, VA will send a simultaneous request to the claimant indicating that VA is making a second request for his or her records. In such notification, VA would also inform the claimant that his/her claim will continue to be processed without further delay, and that if the custodian of the requested records or the claimant provides VA with the records after a decision has been made on the case, then VA will readjudicate the claim. Considerations As noted above, this proposed manual change allows VA to potentially improve processing time by 15 days, which is critical to VAs success in achieving the strategic target of completing rating-related claims in 125 days. This proposal does not harm the claimant since VA will continue to make follow up requests to the non-federal sources and notify claimants of such follow-up requests. Furthermore, no adverse actions would be taken on any issues after a single request for records. It does not require a rulemaking or statutory change since the current law and regulation does not specify what constitutes reasonable efforts in terms of numbers of days to wait between requests. It does not violate congressional intent, as VA will continue to make repeated attempts for non-federal records either through a phone call or a 2nd letter. There is a potential argument that VA, due to the overwhelming number of claims being received, will not be able to process the claim any faster based on this proposed change. VA acknowledges that improvements in timeliness may not be immediately realized based on this proposal alone. However, when combined with other claims processing enhancements, (e.g., attaching VCAA notices to applications, ensuring claimants do not fill out Releases for Medical Records if they are not needed or relevant to a claim, etc) VA is confident that processing capacity will significantly increase, thereby freeing up FTE to more quickly address initial and follow-up requests for nonfederal records. There is a potential perception of unfairness in that VA is only allowing a custodian 15 days to supply records before we continue with a claim. VA understands this perception, but it is a fallacy nonetheless. Private physician offices are unlikely to respond to a request after it is two weeks old. A reminder in two weeks, rather than one month will likely provide more timely responses.

86

3.4

Modify VA Form 21-4142

Introduction This proposal seeks to modify VA Form 21-4142 (release form) to enhance the overall effectiveness by which VA assists claimants in obtaining pertinent private medical evidence in support of disability claim. Although the release form is useful in that it allows the Veteran to receive assistance from VA in obtaining private medical evidence, it has also been the source of confusion and delay in the claims process. As explained below, there are several issues that warrant modification of this form. Background Currently, VA uses a completed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, to obtain confidential medical information from private providers. This form is available through Modern Awards Processing and Development as well as the VA forms website. Although the form is useful in that it relieves the burden of the claimant to obtain private medical evidence, it has also been the source of confusion and delays in the claims process. Below are various concerns that warrant a careful review and modification of this critical form. Because the form has two critical audiences, the issues below are broken out into 2 categories intended to make the form more Veteran and Custodianfriendly. Veteran-Friendly Enhancements for the VA Form 21-4142: Issue 1: Veterans are conditioned in the military to sign any and all forms; therefore they often complete and sign the VA Form 21-4142 when there is no need to do so. This problem is demonstrated by instances wherein the Veteran attaches a release form to his or her actual private medical records that they are submitting. This leads VSRs to believe that there are additional records that the private physician did not provide; therefore an unnecessary attempt to obtain these records is made by VA. Solution: Make it clear on the form that YOU SHOULD NOT COMPLETE THIS UNLESS YOU WANT VA TO OBTAIN PRIVATE MEDICAL RECORDS. IF YOU HAVE ALREADY PROVIDED THESE RECORDS OR INTEND TO OBTAIN THEM YOURSELF, THERE IS NO NEED TO FILL OUT THIS FORM. (Doing so will lengthen your claim) Issue 2: Irrelevant medical records are often sent to VA because the Veteran thinks he or she needs to request that any and all private medical records be sent to VA.

87

Solution: Make it clear on the release form that records only pertaining to claimed condition need to be obtained by VA. Block 7C of the current form asks Veteran to identify conditions pertinent to his or her claim. It is recommended that the form be restructured to identify the condition for which they have claimed and for which they have received specific treatment. The form should more clearly solicit PERTINENT MEDICAL RECORDS that the Veteran wishes VA to obtain in support of his or her claim. Custodian-Friendly Enhancements for the VA Form 21-4142 Issue: Some providers or custodians believe that VBAs release form is deficient in some respect. In a recent query, OFO asked ROs to report the names and reasons providers gave for refusing to honor the VAF 21-4142. Two of most common responses pertained to providers not accepting the releases because they did not conform to State law or the provisions of the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191. Solution: OGC recently indicated that under the HIPPA Privacy Rule, a valid authorization must contain certain core elements and requirements including a description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion (45 C.F.R. Section 164.508(c)). OGC further stated that the VA Form 21-4142 does not appear to solicit or require such a description and the absence of this core element may render the form not compliant with HIPPA, and may be contributing to refusals of VA requests for claimants private records. To this end, it is recommended that OGCs Professional Staff Group IV review the form and provide recommendations that ensure HIPPA compliance. Justification The modification of VA Form 21-4142 will enhance VAs ability to meet the timeliness strategic target of 125 days. By improving the release form so that Veterans understand it better and by modifying the language to fully comply with HIPPA requirements, VBA reduces the time it takes to develop a significant number of claims that are otherwise lingering in the claims process. In fact, many of these types of cases are ready for a decision, but nonetheless are delayed because of the required follow-up actions that must be taken.

88

3.5

VBA/VHA Joint Initiative to Increase Rating Efficiency

Introduction This joint initiative between VBA and VHA will increase rating efficiency by modifying the content of and better utilizing VA medical treatment reports in the rating process, and by maximizing the value of Disability Benefits Questionnaires in the rating process by requiring VA treating physicians to periodically complete them. Background Regional offices routinely schedule VA examinations when processing rating-related claims. Although claimants often present (or mention) medical evidence from VA physicians when submitting claims for compensation, decision makers are rarely able to use the VA medical records without having to order additional VA examinations. While the VA treatment records are of some value in determining effective dates and identifying symptomatology, they generally are not sufficient to produce a final rating. For example, a Veteran may have been treated for the entire year for various service connected orthopedic conditions. However, unless the VA treatment reports contain range of motion findings or statements relating to their functional loss, raters will not be able to rate on these reports. In this case, the Veteran must report for VA examination(s) for the same condition for which he or she has received treatment. Two-Part Proposal Part One: Because of the specific medical findings needed to rate disabilities, VBA proposes that VHA treating physicians incorporate into their reports certain findings that would satisfy the rating criteria contained in the VASRD. No expensive procedures/tests will be arbitrarily ordered by the physicians unless medically necessary. For example, a nerve conduction test would not be ordered just so that it would be on file in case the Veteran decides to file a claim. However, because certain findings such as functional loss and range of motion measurements for a joint could easily be ascertained through routine visits, these types of findings would be incorporated into the treatment reports, thereby enhancing their overall value to the rating process. A pilot project is proposed that would pilot a single body system, such as musculoskeletal. VBA would closely monitor the process to measure any increased efficiency that may result. Part Two: To maximize the value of the DBQs, it is proposed that VHA treating physicians complete DBQs on a periodic basis, which would then be available through CAPRI. Rules and requirements would be established to determine the category of Veterans and medical conditions that would warrant periodic DBQ completion.

89

A pilot for a specified number and type of DBQs would be recommended to determine feasibility of full implementation. The physician would not arbitrarily order tests/procedures just so that he/she could complete the DBQ. A cost/benefit analysis will be completed to determine feasibility of this initiative. Justification This 2-pronged proposal will promote greater rating efficiency by reducing the number of VA examinations ordered by regional offices and thereby improving timeliness of claims processing. It would also result in savings for VHA as significantly fewer C&P examinations would be completed on a yearly basis. VHAs exam timeliness and VBAs development time would improve since fewer C&P exams would be ordered. This proposal will improve service to our nations Veterans by preventing unnecessary visits to VA clinics and by providing them faster benefits and services. Considerations Because this initiative creates a cultural change in how VHA physicians treat their patients and document their reports, it is imperative that the top levels of leadership are engaged early in the process. The value of this proposal and benefits for both VBA and VHA are undeniable and should be presented clearly to leadership. If this proposal is agreed upon, then a cost/benefit analysis should be completed. Various elements such as costs of C&P examinations, extra time in completing treatment or progress reports, improvement in timeliness, etc. should be considered in this analysis. This initiative provides an opportunity to better utilize technology in the claims process. For example, by programming look-up functions in CAPRI or other web-based applications, raters could search Veteran records for critical rating criteria elements, (e.g., Range of Motion Measurements), thereby increasing overall rating efficiency.

90

4 Training
4.1 Create a comprehensive training program designed to enforce the exam by exception mentality

Introduction The following should form the basis of a nationwide training program designed to assist VSRs/RVSRs in using sound judgment based on legal authority when to request claimsrelated VA examinations. Evidence of record may be adequate for rating purposes even though it may not be current. Many have asked, When is evidence too old on which to rate? This proposals objective is, in part, to finally answer that question. A key factor in this debate is that the Court's case law requiring examinations has not been addressed in cases where the issue is a denial of service connection. Rather, the Court's cases have historically addressed situations in which service connection has been established and the only issue is the current level of disability. The duty to conduct a contemporaneous examination is triggered when evidence indicates a material change in a disability or that a current rating may be incorrect. That duty does not extend when evidence of record is adequate for rating. VAs regulation specifies that VA is only required to notify claimants of information and medical or lay evidence that is necessary to substantiate the claim. Other regulations allow VA to cease development when service connection can be awarded based on the evidence of record. In fact, the law gives VA the discretion to determine how much development is necessary for a determination of service connection to be made. The legal framework below shows that awarding service connection for a disability with no current examination when the latest evidence adequate for rating is, for example, three to four-years old, is acceptable. Rating a case with no current examination, however, may be unacceptable when evidence indicates the severity of the disability has worsened. Further, denying service connection without providing an examination, when one is necessary to decide a service connection claim is also unacceptable. Background Understanding VAs Duty to Assist The duties that VA must fulfill to aid Veterans with their compensation claims were redefined and clarified by Congress in the Veterans Claims Assistance Act of 2000. Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The VCAA amended 38 U.S.C.

91

5103 and added a new statutory section, 38 U.S.C. 5103A. These duties include, but are not limited to: The duty to notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim (38 U.S.C. 5103(a); Dingess v. Nicholson, 19 Vet.App. 473 (2006); Sizemore v. Principi, 18 Vet.App. 264, 27374 (2004)); the duty to notify the claimant of which information and evidence the claimant must provide and which portion the Secretary will attempt to obtain (38 U.S.C. 5103(a); Charles v. Principi, 16 Vet.App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002)); the duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate" the claim (38 U.S.C. 5103A(a)(1); see Washington (James A.) v. Nicholson, 19 Vet.App. 362, 370-71 (2005)); the duty to "make reasonable efforts to obtain relevant records (including private records)" that the claimant identifies and authorizes the VA to obtain (38 U.S.C. 5103A(b)); the duty to obtain the claimant's service medical records, other military records, records of relevant VA medical treatment, and other relevant records held by the Federal government (38 U.S.C. 5103A(c); see McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)); and the duty to provide a medical examination or obtain a medical opinion when one is necessary to make a decision on the claim (38 U.S.C.S. 5103A(d); Kowalski v. Nicholson, 19 Vet.App. 171, 178 (2005)).

Before November 2000, when the VCAA was enacted, Veterans had to obtain a medical diagnosis of a current disability on their own. VA was generally not obligated to help them obtain this medical evidence. Some Veterans could not afford a private doctor, and were therefore placed in a no-win situation. They could not receive disability compensation until they submitted a medical diagnosis of their current disability, they could not get VA to provide them with a free medical examination to obtain this diagnosis, and they could not obtain a medical diagnosis from a private doctor because they could not afford to pay for the private doctor. As a result of the VCAA, most Veterans who file an original claim for disability compensation do not need to obtain a medical diagnosis on their own. However, Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) potentially calls this into question. VA is generally obligated to provide Veterans with a VA medical examination to diagnose the current medical condition. Under section 5103A(d), VA is required to provide a medical examination or obtain a medical opinion when one "is necessary to make a decision on the claim." An examination or opinion is considered necessary "if the evidence of

92

record before the Secretary, taking into consideration all information and lay or medical evidence: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval or air service; but (C) does not contains sufficient medical evidence for the Secretary to make a decision on the claim." 38 U.S.C. 5103A(d)(2). There are, however, a few legitimate reasons for which VA may refuse to schedule a medical examination. First, VA can refuse if it believes that "no reasonable possibility exists that such assistance would aid in substantiating the claim 38 U.S.C. 5103A(a)(2). The exact parameters of this statutory standard are normally in litigation flux, but are being developed over time by VA and the Courts. Generally, if VA decides after obtaining the Veteran's military service personnel and treatment records and considering the Veteran's statements and other evidence in the record, that no precipitating disease, injury, or event occurred during the Veteran's period of military service that could have possibly led to the medical condition that is the subject of the claim, then VA may conclude that no medical examination is necessary because the claim could not be granted regardless of the diagnosis of the current disability. The Court found in Duenas v. Principi, that a Veteran was not entitled to a VA examination under 38 U.S.C. 5103A because no reasonable possibility was suggested by the record that the Veteran's poor vision and hearing loss were related to an event, injury, or disease in service. Duenas v. Principi, 18 Vet.App 512, 519 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1356 (Fed. Cir. 2003). The Veteran had claimed hearing loss and poor vision, but neither his statements nor his service records suggested any relationship to service. In contrast, the Court remanded the Veteran's claim for a heart disability, finding that the Board did not provide adequate reasons and bases to explain why no examination was required when a service medical record referenced heart symptoms. Id. at 518. The U.S. Court of Appeals for the Federal Circuit, has held that a Veteran has to show some causal connection between disability and service; disability alone is not enough. Other instances where "no reasonable possibility" exists that a claim could be substantiated include when a claimant lacks qualifying service, veteran status, or basic legal eligibility for the benefit, or when a claim is inherently incredible or clearly lacking merit. 38 C.F.R. 3.159(d) (2010). A claim by a male Veteran for service connection for ovarian cancer is one example of the type of claim that falls into this category. VA can also refuse to provide a medical examination if it finds there is already sufficient competent medical evidence in the record to make a decision on the claim. 38 U.S.C.

93

5103A(d)(2)(C); 38 C.F.R. 3.159(c)(4); 38 C.F.R. 3.304(c); Shoffner v. Principi, 16 Vet.App. 208, 213 (2002); see 38 C.F.R. 3.326. Important Distinctions The primary topic of this discussion pertains to the emphasized (underlined) portions of the foregoing analysis. VBA employees generally understand that claims can be decided without a current VA examination in certain circumstances. Nonetheless, whether because of entrenched attitudes, the fear of potential errors (STAR errors), or simply common misunderstandings of the exact narrow nature of the law, claims processors rarely use these legal distinctions to their advantage. A logical first step in understanding the proper narrow application of the law is separating that application between original claims for compensation or pension (hereafter original claim) and increased-rating claims for disabilities, wherein VBA has already established service connection (hereafter increased-rating claim).9 Notwithstanding distinctions between these two types of claims, some fact-based scenarios still mandate the laws equal applicability in each type of claim. Service Connection: The purpose of this instruction is to provide education to VBA field employees explaining that not all benefit claims based on disability require current VA examinations or VA examinations at all. This concept is more easily applied to original claims than increased-rating claims. Taken further, this concept is bilateral in nature. One side deals with evaluating whether current evidence is adequate for rating, and if so, understanding that it is lawful to award benefits in original claims without a current VA examination. The other side deals with a similar situationwhere evidence is also adequate for rating, but not current, and that VA can award benefits without a current examination even in many of these circumstances. Many will argue that adopting such a policy will violate VCAA in both circumstances. Those who would argue with this theory may also believe the Court already addressed the issue several times. This, however, is a misconception. An important factor in this debate is that the Court's case law requiring an examination has not been applied in cases where the issue is a denial of service connection. Rather, the Court's cases regarding the requirement of an examination address situations in which service connection has been established and [the] only issue [is] the current level of disability . . . . Palczewski v. Nicholson, 21 Vet.App. 174, 182 (2007). In fact, VA has discretion in deciding when additional development is necessary and such determinations are reviewed under the arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law standard of review set forth in 38 U.S.C. 7261(a)(3)(A). See Shoffner v. Principi, 16 Vet.App. 208, 213 (2002).

For the purpose of this instruction, the phrase original claim refers to a claim for compensation for any disability not yet service connected, whether or not service connection is already established for another disability.

94

Moreover, regulations allow VA to cease further development when service connection can be awarded. 38 C.F.R. 3.304(c) (stating that [t]he development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination.) The Court has held that this regulatory language gives VA the discretion to determine how much development is necessary for a determination of service connection to be made. Id. at 213 (emphasis added); see 38 U.S.C. 7150(d)(1) (stating that agency will take such development or review action as it deems proper under the provisions of regulations not inconsistent with this title once an appeal is filed). There may be an expansive body of law that describes VAs duty in providing contemporaneous examinations in many cases; however, the duty simply does not extend when evidence of record is adequate for rating. See 38 C.F.R. 3.326 (2010) (explaining VAs authorization to provide examinations in original and increased-rating claims when evidence is otherwise not adequate for rating). These instructions apply equally to VAs duty to notify. For example, VAs duty to notify regulation specifies that VA is only required to notify claimants of information and medical or lay evidence that is necessary to substantiate the claim. 38 C.F.R. 3.159(b)(1)(2009). Claims ready to rate wherein the benefit sought will be awarded are already substantiated. As mentioned earlier, the evidence of record may be adequate for rating purposes, even though it may not be completely up-to-date. Compensation Service has been asked many times when is evidence too old on which to rate? Although there is no single answer to this question, it should be understood that the mere passage of time does not require VA to provide a new medical examination. Palczewski, 21 Vet.App. at 182. Safely and lawfully applying this concept will also depend on a close analysis of the facts pertinent to a specific case. A record may contain medical evidence otherwise adequate for rating; however, the evidence has aged. A claims processor would need to analyze the remaining evidence of record to determine whether any information suggests a material change in the condition at issue. The evidence reviewed would be any evidence in the file subsequent to the evidence already present and adequate for a rating. If such evidence does suggest a material change, then a current examination may be necessary. Increased-Rating Claims: VAs duty to provide current examinations in increased-rating claims is more pronounced because (1) the very nature of the claim is one wherein a claimant is alleging that his/her condition has grown worse in severity, and (2) the Courts jurisprudence is such that it has mostly focused on these claims when addressing this aspect of VCAA. VA can nonetheless render a favorable increasedrating decision with no current VA examination if the Veteran submits evidence adequate for such a decision or the Veterans VA healthcare records support such a decision. Essentially, the duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in a disability or that the current

95

rating may be incorrect. 38 C.F.R. 3.327(a) (2010); see Snuffer v. Gober, 10 Vet.App. 400, 403 (1997) ([W]here the appellant complained of an increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination.); Francisco v. Brown, 7 Vet.App. 55, 57-58 (1994) (holding that [w]here an increase in the disability rating is at issue, the present level of disability is of primary importance); Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (holding that, in a claim for an increased rating, the Board erred by relying on a 23month-old examination where the appellant submitted evidence to indicate that there had been a material change in his disability since that examination); Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (remanding a claim because the record did not adequately reveal the current state of the claimant's service-connected disability). The foregoing legal framework indicates that awarding service connection for a disability with no current medical examination is acceptable, as long as one of the following is applicable to the claim: 1. when the latest evidence adequate for rating is, for example, three to four years old, or 2. when current evidence adequate for rating is not in the form of a C&P examination. Likewise, it is equally acceptable to render increased-rating claim decisions in cases where the evidence is current and would result in an increased-rating award, despite the fact that such evidence is not in the form of a VA examination. However, rating such a case with no current examination may not be acceptable when medical or lay evidence indicates the severity of the disability has worsened. Foregoing VAs Duty to Notify and Assist When the VCAA amended section 5103 and added the new section 5103A, the two distinct duties were (1) the duty to notify and (2) the duty to assist. The notification duties include, but are not necessarily limited to: (1) the duty to notify a claimant of any information necessary to complete a claim application; (2) the duty to notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim; and (3) the duty to notify the claimant of which information and evidence the claimant must provide and which portion the Secretary will attempt to obtain. The plain language of the forgoing law clearly implies that VAs duty to notify (1) attaches to an incomplete application, and (2) refers to a claim that lacks the necessary information for a favorable decision. Therefore, it must follow that the law stands for the proposition that a complete application accompanied by medical or lay evidence sufficient for VA to render a decision, particularly a favorable decision, requires no substantiation and therefore no notice. The duty to assist includes, but is necessarily limited to: (1) "make[ing] reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate" the claim;

96

(2) the duty to "make reasonable efforts to obtain relevant records (including private records)" that the claimant identifies and authorizes VA to obtain; (3) the duty to obtain the claimant's service treatment records, other military records, records of relevant VA medical treatment, and other relevant records held by the Federal government; and (4), the duty to provide a medical examination or obtain a medical opinion when one is necessary to make a decision on the claim. Just as in the analysis of VAs duty to notify, the plain language of the law concerning VAs duty to assist is predicated on VA receiving a claim application that lacks information on which to render a favorable decision. It must again follow that the law stands for the proposition that a complete application accompanied by medical or lay evidence sufficient for VA to render a decision, particularly a favorable decision, requires no substantiation and, subsequently, VA has no duty to assist in the claims development process. To further solidify the foregoing position, please note that Congress has stated this in the legislative history pertaining to a 2008 amendment to section 5103. Pub. L. 110389, Title I, 101(a), Oct. 10, 2008, 122 Stat. 4147. This recent legislative history makes clear that VA is not only allowed, but also encouraged to sua sponte waive all notice and assistance under VCAA when VA determines that evidence of record is sufficient to award all benefits sought. See Senate Report 110-449, 2008 U.S. Code Cong. and Adm. News, p. 1722, 1731 (stating, The Committee emphasizes that VCAA notices are required only in cases in which additional information or evidence is needed to substantiate the claim. If the information and evidence needed to substantiate the claim is submitted with the application or contained in the claims file, no VCAA notice is required). Opposing Views Opposing views to this analysis suggest that reducing the number of VA examinations in lieu of relying on other evidence when rendering favorable decisions will result in an increased number of BVA remands. This is not true. The primary goal of this instruction is to reduce the number of VA examinations for original claims when a favorable decision will otherwise result. If VA receives a notice of disagreement once this action has been taken, the logical and lawful course of action would be to provide a current VA examination. In such cases where the appeal is not resolved, it may proceed to BVA with a current VA examination of record. Rather than increase remands, this practice would likely decrease the number of remands. Other opponents may contend that such a practice in original claims would further violate the law by not awarding the maximum potential benefitthat a fully favorable claim must factor in the highest possible rating for a particular disability. This is only partially true. As held in AB and Shoemaker, a Veteran contesting a rating or effective date is presumed to be seeking the maximum benefit available under the law. AB v.

97

Brown, 6 Vet.App. 35, 38-39 (1993); Shoemaker V Derwinski, 3 Vet.App. 248, 253 (1992). A claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. The Court adheres to a "case or controversy" limitation as to standing to appeal. Where a claimant has filed an NOD based on an RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, thus does not abrogate the pending appeal. Furthermore, no new jurisdictionconferring NOD may be filed as to that subsequent decision. See Hudson v. Principi, 3 Vet.App. 467, 468 (1992). In the AB case, a Veteran's February 1988 NOD placed on appeal the issue of entitlement to a rating in excess of 10 percent for service-connected PTSD. Pursuant to that appeal, BVA was required to consider entitlement with respect to all available disability ratings for PTSD. See 38 C.F.R. 3.103(a); Shoemaker, supra. This logic cannot follow to original claims of service connection, or else when VA awarded any rating less than the maximum, the case would be said to remain in controversy without VA ever receiving a timely NOD. Justification In the same context as other recommendations in this initiative, this section represents a significant shift in how VA approaches what is ultimately some of its largest functions in claims processing. It is nonetheless not a shift requiring a major policy change, but rather one that utilizes, and in fact relies on, a much deeper understanding of the entire legal framework that drives many of VAs development and decision-making processes. Mastering the level of legal understanding we are targeting, is unfortunately a very difficult objectivewe have no misperceptions on that subject. This difficulty is easily illustrated by the diverse methods of claims development and decision-making applied across various field stations and individual field employees within a single station. In many cases, adjudicators request VA examinations in cases only because claimants submit private treatment records, despite their adequacy for ratingothers will not. Likewise, many request VA medical opinions only because the claimant submits a private medical opinionothers will not. In other cases, adjudicators request the claimant complete a VA Form 4142 to obtain private treatment records only because the claimant submitted private treatment records or a private medical opinion, despite the fact that the claimant neither identified nor authorized VA to obtain such records. The latter routinely occurs despite the fact that nothing in the record indicates additional records exist. Even if there is such an indication, there is no legal requirement to request such records unless the claimant authorizes and request that VA do so. These and other adjudicative actions needlessly add weeks or months to an already lengthy process. Correcting, standardizing, and streamlining these diverse practices will not be easy. VA cannot, however, let such difficulty prevent the creation of a robust and intense training program designed to instill a masterful understanding of the laws

98

narrow application to varying fact-based scenarios as discussed herein. The potential level of claims-process efficiency VA can achieve if such a program is successful is simply too valuable to the agency and every one of its stakeholders. Considerations Method of implementation: VA must create a nationwide, comprehensive, mandatory training program. The program must be complete with, but not limited to, an in-depth training course on the legal analysis of the material discussed herein; a syllabus; practice scenarios; and mandatory tests. The program should be applicable to VSRs and RVSRs. Furthermore, the Quality Review staff must successfully complete the training program. VA must assure field employees that such a program is mandatory for the quality review staff, and that the quality review staff will adhere to the instructions set forth in such program. Without such assurance, this initiative has the potential of creating a distinction in policy without a difference in practice. Adjudicators must be empowered with the confidence to render the informed and educated judgments required by these instructions without the fear that application of such instructions will only result in accusation of benefit entitlement errors, thereby resulting in reduced station accuracy. Many proponents of this recommendation nonetheless state that the current CPI model of claims processing would hinder successful outcome of this suggestion because nonrating personnel review and develop cases before rating personnel reviewing the case. There is considerable merit to this concern. Therefore, we suggest utilizing the Booze Allen Leaning Processing model, or something similar to overcome this challenge.

99

4.2

Simplification of reasons and bases on VA Rating Decisions

Introduction This proposal intends to simplify and streamline VA rating decisions while increasing overall rating quality, productivity, and customer satisfaction. This is critical to VBAs efforts to reduce the national inventory of rating-related claims, and improve rating timeliness and accuracy. In general, rating decisions have unnecessarily increased in length and complexity in part because of concerns related to local and/or national quality reviews and the influence of BVA and the courts. This proposal will utilize a comprehensive training program, through collaboration between all Compensation staffs and OFO, to streamline ratings by eliminating many of the self-imposed and unnecessary administrative burdens in the rating process and refocusing RVSRs on the necessary elements of a rating. The intended outcome will be a cultural change resulting in more efficient, accurate, and Veteran-friendly rating decisions. The goal of this initiative is to increase individual rating productivity by case per day per RVSR. This would result in the completion of approximately 200,000 additional rating decisions per year. (2000 Raters X .5 = 1000 Ratings per day X 197 (standard number of workdays per year) = 197,000 additional Ratings per year) Background The last initiative to address the issue of simplifying rating decisions was Rating Redesign, which was 10 years ago. The rating board has experienced significant turnover in the last decade and the overall experience level has declined. Rating decisions have significantly increased in length and complexity. Rating accuracy has also declined in recent years to the current 83 percent, far below the strategic target of 98 percent. Raters are overly concerned about BVA or STAR-proofing ratings instead of writing decisions for the customers. The volume of text that is included in the reasons and bases section of an average rating decision demonstrates the unnecessary administrative burden that is carried out by raters. Despite regulatory and statutory rules that require less of an explanation of the reasons and bases when awarding benefits, raters routinely include superfluous text that adds little value to the decision. It is important that raters understand the distinction between the reason and bases requirements of grants versus denials. See 38 U.S.C. 5104(b),7105(d)(1); 38 C.F.R. 3.103(b)(1) & (f). There exists a clear distinction in the law governing VAs required explanation when issuing benefit grants versus denials. Further, there exists an additional distinction when VA issues an SOC on appealed issues. The total statutory scheme outlines three discrete levels of required explanatory detail. For example, the law governing Decisions and Notices of Decisions concerning favorable decisions states:

100

In the case of a decision by the Secretary under section 511 of this title [38 USCS 511] affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision. The implication of 38 U.S.C. 5104(a) and the plain language contained therein unmistakably delineates its applicability to favorable decisions. Consider the following subsection from section 5104: (b) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary. The third distinction, concerning VAs issuance of an SOC, is outlined in 38 U.S.C. 7105. The pertinent subsection states: (d)(1) Where the claimant, or the claimant's representative, within the time specified in this chapter, files a notice of disagreement with the decision of the agency of original jurisdiction, such agency will take such development or review action as it deems proper under the provisions of regulations not inconsistent with this title. If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statement of the case. A statement of the case shall include the following: (A) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed. (B) A citation to pertinent laws and regulations and a discussion of how such laws and regulations affect the agency's decision. (C) The decision on each issue and a summary of the reasons for such decision. The practice of writing longer decisions has been cultivated over the last decade and is now generally viewed as a well-accepted requirement. As such, the basic legal requirement appears to have been lost in translation. The Court has issued numerous decisions holding the VA to a strict, detailed standard of reasons and bases. However, a close analysis of the law reveals the Courts actual target in such decisions is the Board of Veterans Appeals, not initial decisions of an Agency of Original Jurisdiction (ROs). In issuing such decisions, the Court is not incorrect; rather, it is merely upholding the law. The Boards statutory mandate is that when issuing decisions, [e]ach decision of the Board shall include(1) a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record . . . . 38 U.S.C. 7104(d)(1).

101

Any perception that such requirements are transferred to a decision by an agency of original jurisdiction is simply misplaced. In fact, the Court has no such jurisdiction. See 38 U.S.C. 7252(a) (stating: The Court of Appeals for Veterans Claim shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals.). Justification This proposal will improve the quality, productivity levels, and overall efficiency of the rating board. Training RVSRs to simplify and shorten ratings while adhering to all pertinent laws will also result in better service to Veterans and their family members. Rating decisions will be shorter, clearer, and more reader-friendly. Although VACO has monitored the rating activity through the national accuracy program (STAR), there have been minimal efforts by VACO over the last 10 years to streamline the contents of rating decisions. Given the significant turnover of the rating board and the influx of newer, less experienced RVSRs, it is imperative to re-establish the legal requirements for rating decisions. As part of this proposal, raters will learn how to better organize facts, weigh evidence, and articulate concise but legally sufficient reasons and bases in a reader-friendly manner. The changes from this proposal can be implemented rapidly through Veterans Service Centers without statutory or regulatory changes. A clarification of the legal requirements for rating decisions is necessary given the above legal references. Considerations The success of this initiative is contingent upon a significant mindset and cultural change within Veterans Service Centers and all staffs within Compensation Service. At the core of this proposal is to change the mindset that more is better. In fact, the longer Rating Decisions often masks the inadequacies of the rationale behind the decisions. Writing less will force writers to be more concise, thereby increasing the value and meaning of the Rating Decisions. Notwithstanding the above, taking this proposal too far may indeed have an equal, but opposite effect. This proposal should not be used as a proverbial magic bullet to reduce the RTR case inventory by essentially eliminating reasons and bases. Doing so may likely subject VA to litigation that has the potential of erasing any realized gains.

102

5 VSO Program
5.1 Create a project for cases not subject to VAs duty to notify or its duty to assist by leveraging assistance from VSOs

Introduction The recent legislative history pertaining to the latest amended version of 38 U.S.C. 5103 makes clear that VA is not only allowed, but encouraged to sua sponte waive all notice and assistance under the VCAA when VA determines that evidence of record is sufficient to award all benefits sought. See Senate Report 110-449, 2008 U.S. Code Cong. and Adm. News, p. 1722 (The Committee emphasizes that VCAA notices are required only in cases in which additional information or evidence is needed to substantiate the claim. If the information and evidence needed to substantiate the claim is submitted with the application or contained in the claims file, no VCAA notice is required,) 2008 WL 4149915, 9, 2008 U.S.C.C.A.N. 1722, 1731. Because of inherent limitations imposed by the CPI model of claims processing, VA has notable difficulty in establishing processes for employees involved in the earliest stages of the claims process to identify claims that warrant an immediate favorable decision. VA should therefore enter into a memorandum of understanding with VSOs that maintain space available in ROs to assist with such a project. By establishing a structured process with well-defined parameters, one targeted at specific types of cases rather than a broad range of cases, VA can create an easy-to-manage process that ensures success in leveraging VSO assistance. By limiting its scope, VA can prevent a repeat of past failures in similarly intended programs, such as TRIP I and II. Background The analysis used in the section titled, Create a comprehensive training program designed to enforce the exam by exception mentality is incorporated herein by reference. The proposition in that analysis serves to fully support the legality of this proposal. Furthermore, when the new regulation is published based on the 2008 amendment to section 5103, contained in Pub.L. 110-389, the new regulation will make clear that that no notice, and by extension, no assistance, will be required when rendering decisions on benefit claims that can be favorably decided on the evidence of record. A carefully planned project would be instrumental in expediting numerous types of claims wherein VA normally follows all VCAA requirements despite having evidence sufficient to award benefits. (E.g., certain claims under 38 C.F.R. 3.22, 3.309, 3.312, 3.350, 4.16, 4.28, 4.29, 4.30, etc.). This plan would only include specified types of claims as listed here. For each of these types of claims, or others VA may chose to include, VA will create a short checklist outlining the required information to associate 103

with the claimants folder. If a claim is missing information outlined on the checklist, it will not qualify for this project. Rather than task trained RVSRs to review such cases for possible inclusion, we propose to fully engage VSO employees within the respective RO to enable such personnel to readily identify qualifying claims. For example, benefit claims under paragraph 29 and 30 generally require evidence in the file of the appropriate serviceconnected status of a disability and the proper hospital or surgical report. No other evidence is necessary for a fully favorable decision on such a claim. Likewise, in certain DIC claims, the only requirements are evidence of a Veteran receiving compensation at the 100-percent rate (for the specified period of time) and a death certificate, or evidence of a service-connected disability shown as the cause of death on a death certificate. The checklist will be structured to ensure that if all items on the checklist are attached or included in the file, then an award of benefits will follow. The requested project is neither complex nor cost prohibitive. Standard decision language for the pre-selected types of cases can be drafted so that the assigned rater need only input the claimants information in order to generate the applicable decision. Personnel assigned to this project should have higher performance standards. The project will require that associated VSO employees act with diligence in recognizing applicable claims affected by the pilot. When the appropriate evidence is brought to their attention, whether through client mail, in-person interviews, phone calls, or outreach programs, they must associate that mail with the respective claims file and personally deliver the file to the assigned RVSR. The VSO will complete a short checklist to ensure the claim qualifies for an immediate award of benefits. The checklist, evidence, and claims files will be hand delivered to the assigned RVSR, who will issue a decision within 10 working days or 14 calendar days. The assigned RVSR can be rotated every 30 days in order to prevent any adverse labor-management-relations issues. Justification Regional Office VSO employees and their associated workload will greatly benefit from this type of project, thereby providing sufficient motivation for full participation. Once participation is guaranteed, VSOs and VA can enter into a memorandum of understanding that will outline their expectation of VA and VAs expectation of them. Many stations have excellent relations with their local VSOs. This type of project will enhance such relations. Other stations have less than ideal relations; likewise, this project will serve to improve those relations as well. Essentially, success in such a project is beneficial for VA, VSOs, and most importantly, Veterans and their dependents we each serve.

104

VSOs must understand the benefit to them and their clients. Essentially, success in this project will lessen the workload on VSOs despite the requirement for additional action on their part. Many VSO offices are plagued with the same challenges as VAa workload that exceeds personnel available to effectively manage such workload. This project will ensure that many VSO clients receive their benefits within a matter of days rather than months, depending on their active participation. This means less repeated phone calls (VSOs have a duty to return all calls within a specified timeframe), less personal interviews (many clients visit their representatives weekly or more regarding the status of their claim), and less mail to process as the claim will need no further information submitted. Most importantly, VSOs will be able to provide a service to their clients, in certain cases, that they normally could notrapid completion of their claims. This will gain the VSO more respect within the Veteran community. Considerations The foregoing justification should help to instill confidence in the unconvinced VA employee that through the proper motivation, VA can provide VSOs a mechanism to truly assist VA in increasing efficiency in the claims process, while improving service to the clients. VA should meet with senior VSO leadership in order to solidify the details of the memorandum of understanding, and to reach a consensus on the types of claims that should be incorporated into the project. It is important to note that many VSOs will file a Veterans application for benefits at the earliest stage in order to preserve the effective date in case an award of benefits follows. In these cases, the claim will not be ready to rate, and therefore could impact this project. It is likely VSOs will not change this practice because doing so could harm their client and betray their fiduciary relationship with that client. VA should therefore work with the VSO community, in regards to the claims affected by this project, to file informal claims in such cases where possible, thereby preserving the clients effective date and preserving the VSOs fiduciary relationship with their client. Such goal should be to file an informal claim where the VSO is certain the claimant intends to provide evidence to the VSO at a later point that will qualify the claim as a claim authorized for inclusion into this project.

105

6 Internal Compensation Service Issues

6.1 Streamline the Agent Orange exposure confirmation process

Introduction This proposal seeks to modify procedures in M21-1MR IV.ii.2.C.10.o to streamline the process of verifying or confirming herbicide (Agent Orange) exposure when a Veteran claims a disability due to exposure to Agent Orange outside of Vietnam. Because regional offices will be equipped with the knowledge and necessary tools to perform this function, it will eliminate the need for a formal request to VACO and thereby increase the overall claims processing efficiency. Background According to current VA procedures, regional offices send requests to Compensation Service to verify herbicide exposure outside of Vietnam. The Legislative and Policy Staff then researches DoD information to determine if the alleged exposure can be confirmed. If exposure is confirmed, then Compensation Service communicates this to the RO, who will then determine if service connection is otherwise in order. If exposure is not confirmed, then RO is instructed to send formal request to JSRRC for verification. The Legislative and Policy Staff is creating a webpage that details the use, testing or storage of tactical herbicides in areas outside Vietnam. The site will be populated with official information obtained from DoD. Upon completion of this website, regional office staffs can search the site directly for evidence of possible exposure when a Veteran claims to have been exposed to Agent Orange outside of Vietnam. If there is no evidence of the use, testing, or storage in the area in which the Veteran claims to have been exposed, the RO will be directed (through the website and manual) to send the request directly to the JSRRC. By eliminating any associated delays with the current process and through repeated usage of the website by ROs, the new process will result in faster decisions. Compensation Service will continue to maintain the Agent Orange mailbox at VAVBAWAS/CO/211/AGENTORANGE to address other questions or concerns. Justification This change allows decision makers to arrive at a faster decision on claims that require verification of herbicide exposure outside of Vietnam by essentially eliminating an extra step in the process, which generally takes approximately 15 days. The Legislative and Policy Staff responded to over 450 requests in calendar year 2010. This required approximately 675 staff hours (450 multiplied by 1.25 hours), which includes both field and VACO man-hours. By transferring this function to the ROs, it is estimated that over 6700 days (450 multiplied by 15 days) of processing time will be saved for rating related end products.

106

This change will also free up resources at Compensation Service, thereby allowing consultants to focus on policy matters that will further enhance the claims process. Considerations The benefits of improving claims processing timeliness outweigh any associated risks with this proposal. Because of the well-organized and objective nature of the DoD information that will be available to RO employees, the transfer of this function to the ROs is reasonable and is considered to be low risk. It is recommended that ROs implement this proposal in the most efficient manner according to the local needs of the office. For example, some ROs may delegate this responsibility to a subject matter expert(s), (e.g., Military Service Coordinator or JSRRC Coordinator) while other ROs may place responsibility on all decision makers.

107

6.2

Amend accuracy review procedures by adding a review element for claims processing timeliness

Introduction As a means to measure and ensure compliance with the many proposals contained within this claims processing plan, it is proposed that a timeliness element be added to local and national quality reviews. Specific items will be listed as part of the checklist agenda, so that timeliness errors are objective and clearly linked to the unnecessary delay of a claim. Developing a new timeliness element is critical in VBA achieving the strategic target of completing all rating claims in 125 days. Background Although timeliness is closely monitored at national and local levels, it is difficult to measure at the individual employee level. As noted in this plan, various laws and/or policy practices significantly contribute to the timeliness delays experienced in the current claims process. The proposals contained within this plan are aimed at eliminating many of the unnecessary delays and complexities in the claims process. In order to ensure compliance and effective implementation of these proposals, the development of a timeliness element for quality reviews is critical. This will also provide the proper framework for more meaningful Performance Standards for employees. Examples of potential issues that would warrant a timeliness error include, but are not limited to, the following: Continuing to develop a case for a specific issue when VA can otherwise issue a favorable decision on that same issue; Ordering a VA examination when the evidence of record is sufficient to decide the case. (examination by exception approach); Sending a medical release form to the Veteran when he or she has indicated that they have not been treated by a private physician for their claimed issue; or, Sending a redundant VCAA notice to the claimant.

Justification Adding a timeliness element to local and national accuracy reviews will ensure that employees are more aware of their actions and how they affect the Average Days to Complete claims.

108

It will promote compliance of policies and procedures that are geared to reduce timeliness. It will promote faster processing of claims. Considerations This category would fall outside the current benefit entitlement category, and would therefore serve as an independent measure of a regional offices adherence to timely claims processing actions. Creating a timeliness element will make a bold statement by VBA leadership that timeliness is important and critical to VBAs ability to become a world-class organization.

109

6.3

VA should require at least a quarterly meeting between the Policy and Quality Assurance staff for discussion of common errors to ensure consistent guidance to the field

Introduction There is long history of collaboration between the various staffs within the Compensation Service (formerly Compensation and Pension Service) to ensure that there is consistency among staffs on guidance provided to the field. The results of this collaboration are sometimes provided to the field through fast letters, training letters, Compensation and Pension Bulletins and other such mechanisms. When guidance is provided to the field, it is an assumption that upon concurrence, the guidance is discussed and disseminated among the staff members who must communicate with the field offices either by answering questions, providing additional guidance or through conducting quality reviews. This collaboration is largely successful; however, there is room for improvement in the area of Policy and Quality Assurance collaboration. Background The STAR staff has relied on the Policy and Procedures staffs to ensure that the guidance used in calling benefit entitlement errors under M21-4, Manpower Control and Utilization in Adjudication, Chapter 3, Quality Assurance, are supported by statute, regulation or manual reference. The STAR program is rooted in this guidance in order to support error calls and dedicated to the purpose of the Quality Assurance program, which is to ensure that the field offices are provided proper guidance for correct payment of benefits. There have been several efforts to promote this collaboration between the Policy and Quality Assurance staffs, namely, a workgroup was formed in support of the national Rating Quality call to provide guidance on questions submitted to the Quality Assurance mailbox. This effort was laborious because of the numerous staffs involved with the concurrence process. Based on this history and the lengthy process to provide feedback to the field, it is proposed that the Policy and Quality Staff meet at least quarterly to discuss error calls, create a more robust mechanism to ensure consistency among staffs, and to provide assurance that guidance is provided to the field that will result in increased quality. This increased and specific collaboration will provide a mechanism for the two staffs to review and discuss error calls, determine if the guidance provided in the statute, regulation or manual requires clarification and assist both staffs in determining if there are error calls made based on areas that need review and discussion. This collaborative effort will also assist the Quality Assurance staff with internal training. Justifications The current cumulative accuracy rate (January 1, 2010 through February 28, 2011) is now at 83%. There are several areas that have traditionally been areas of discussion

110

among the staffs that include inadequacy and need for exams, use of the VA Form 214142s, Authorization and Consent to Release Information the Department of Veterans Affairs, rating on evidence of record that is more than a year old, etc., just to name a few. Regular meetings between the two staffs will allow discussion of these issues requiring Policy weigh-in and will allow quick discussion and resolution on many issues that traditionally has taken months to resolve. Considerations Quarterly meetings are proposed with the understanding that the frequency of the meetings should be changed as necessity dictates.

111

Appendix 1: Section 1.1 First-Instance Jurisdiction of the Board

Cost Benefit Analysis: Benefit Costs: There is no mandatory or discretionary cost associated with this proposal. GOE Cost Equivalent: A significant cost equivalent in terms of 111 FTE is realized by amending 38 U.S.C. 7104 to 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. In other words, it would require an increase in the GOE budget sufficient enough to hire 111 FTE to perform the amount of work that this proposal adds in efficiency. The cost equivalent associated with these FTE is $11.8 million for the first year, $64.9 million for five years, and $143.3 million for ten years. Non-payroll administrative cost equivalent will be $495,000 for the first year, $3.1 million for five years, and $8.5 million for ten years. Data Source: In determining the 111 FTE cost equivalent associated with this proposal, C&P relied upon the following sources: VOR Report for Completed 070 EP for FY 2009 Board of Veterans Appeals, Report of the Chairman, FY 2010 DRO Performance Plan

Summary of Methodology: We determined required FTE levels to process Supplemental Statement of Cases by pulling data for FY 2009. Once the number of completed SSOCs was identified, we determined the work actions from ASPEN that were required to process such appeals. We then determined the number of FTEs required to complete the work actions associated with the SSOCs. For purposes of this FTE cost equivalent estimate, we used VOR Completed Report, which showed completion of 65,407 EP 070s in FY 2009. EP 070s are taken when SSOCs are released. This is considered to be a more accurate depiction of the SSOC workload since the published PA&I reports (that show 54,552 SSOCs mailed in FY 2009) do not account for cases where 6 or more SSOCs were sent (VACOLS only stores up to 5 SSOCs). Detailed Methodology: As the foundation for this analysis, we used current DRO production standards and weighted actions from ASPEN rather than the normal budget

112

formula, which relies upon Work Rate Standards. This method depicts the amount of actual work required to complete claims and appeals actions. Step-By-Step Process of Determining Required FTE Levels 1. We added up weighted actions that are required to complete a single SSOC. This equates to 1 weighted action. By multiplying 1 by 65,407 (number of SSOCs completed in FY 2009), we determined the total number of weighted actions nationwide was 65,407. 2. We determined that it would take 21,802 days to process the 65,407 weighted actions represented by the nationwide SSOC workload that was completed. We calculated the number of processing days by dividing the weighted action totals by 3, which is the fully successful performance production standard for a Decision Review Officer for an 8-hour day. 3. To determine the required number of FTE to complete inventory of SSOCs, we divided the number of required processing days (21,802) by the standard number of employee workdays per year (197). We determined that 111 FTE are required to process the SSOC workload. For the standard workday computation, we used the employee work hour number of 1576, which is the standard for C&P budget formulations, and divided this number by 8 (number of hours in a standard workday) to ascertain the 197 days. See table below. Fiscal Year 2009 FTE Requirements for Completion of SSOCs
Wgt* Completed Total Employee SSOCs in Wgt. (Fully FY 2009 Actions Successful Production Standard) Processing Days (based on FS Perf. Standard) Average Employee Work Days Per Year (1576/8) Estimated FTE required to process SSOC inventory 111 FTE

Completion and 1 Release of SSOC

65,407

65,407

DRO, GS-13 (3)

21,802

197

* Weight for apportionment actions from DRO Performance Standard Assumptions For the FTE computation, we simplified our estimate of work effort required to process SSOCs. Based on operational variables, (i.e., office size, structure of Appeals Teams, job duties, etc.), it was determined that a single weighted action performed by a DRO would approximate the work output of the action. We understand that RVSRs may also be completing SSOCs. However, this is offset by the fact that we did not factor in any administrative duties such as routing of claims folders or weighted action credits associated with the release of SSOC. We also did not account for the percentage of SSOCs that would involve more than 7 issues, which are credited 2 weighted actions.

113

We understand that some SSOCs will still be prepared by ROs since the proposed law will allow claimants to choose not to waive RO jurisdiction. Estimating this number is not possible. In terms of calculating work output, C&P assumes the above-described variables will offset one another, and that the workload analysis contained herein provides an adequate picture of the SSOC workload and required FTE level.

114

Appendix 2: Section 1.2 Elimination of Certain Apportionments

Cost Benefit Analysis GOE Cost equivalent: A significant cost equivalent in terms of FTE is realized by eliminating the apportionment function from the C&P claims process. A GOE cost equivalent of approximately 22 FTE will result from this proposal, meaning it would require an increase in the GOA budget sufficient enough to hire an additional 22 FTE to perform the amount of work that this proposal adds in efficiency. Based on the potential caseload, FTE cost equivalent is are estimated to be nearly $23 million over ten years.
FY Direct FTE 2013 22 2014 22 2015 22 2016 22 2017 22 2018 22 2019 22 2020 22 2021 22 2022 22 VBA GOE Total Annual Salary $1,516,823 $1,598,740 $1,683,326 $2,331,661 $2,378,294 $2,499,383 $2,549,371 $2,676,819 $2,730,355 $2,864,547 $22,829,319

Methodology Data Source In determining the 22 FTE cost equivalent associated with elimination of certain apportionment decisions, C&P Service relied upon the following sources: VOR Report for Completed Apportionment Claims for FY 2010; VOR Report for Completed Non-rating claims for FY 2010; VOR Report for Completed 130 EP claims for FY 2010; VACOLS Report of Apportionment Appeals Received for FY 2010; ASPEN Weighted Actions from FY 2010; Veterans Service Representative Performance Plan FY 2010.

Summary of Methodology 115

We determined required FTE levels to process apportionment claims and appeals by pulling data for FY 2010. Once the number of apportionment completed claims and appeals receipts were identified, we determined the work actions from ASPEN that were required to process such claims. We then determined the number of FTEs required to complete the work actions associated with apportionment claims. Detailed Methodology As the foundation for this analysis, we used FY 2010 production standards and weighted actions from ASPEN rather than the normal budget formula, which relies upon Work Rate Standards. It was determined that the WRS for EP 130 (utilized for apportionment claims) does not accurately depict the amount of work required to complete apportionment claims. For example, the WRS of .92 used for processing apportionment claims is also used for adding a single dependent to a Veterans award. These two actions are drastically different in terms of work output. To further demonstrate the increased work output for apportionment decisions, one needs to examine timeliness data for completed apportionment claims for FY 2010. See Table 1 below. The Average Days to Complete for the 10,870 completed apportionment claims is 172.6 days. See month-by-month comparisons with the full inventory of non-rating end products and 130 EPs, which includes a subset of apportionment claims. As demonstrated by the increased processing time (by 2 additional months over non-rating inventory and 3 additional months over the entire 130 EP inventory), deciding apportionment claims requires significantly more resources. TABLE 1 Average Days Processing for Fiscal Year 2010
Month Non Rating EPs EP 130 Apportionments

09-Oct 09-Nov 09-Dec 10-Jan 10-Feb 10-Mar 10-Apr 10-May 10-Jun 10-Jul 10-Aug 10-Sep

110.2 109.6 106.7 110.3 86.6 92.3 106.1 117.5 126.7 137.9 124.6 126.8

86.8 86.2 86.1 86.3 81.1 77.6 73.6 76.7 83.4 89.9 85.7 88.8

184.1 162.2 185.9 170.1 173.8 169.8 172.1 171.4 171.6 173 162.3 175.6

Step-by-Step Process of Determining Required FTE Levels (See Tables 2 and 3 below) 4. We added up weighted actions from ASPEN that are required to complete a single apportionment claim. This equated to 3.26 ASPEN points. By multiplying

116

3.26 by 10,870 (number of claims completed in FY 2010), we determined the total number of weighted actions nationwide was 35,436.2. 5. We determined that it would take 4,067.9 days to process the 35,436.2 weighted actions represented by the nationwide apportionment caseload. We calculated the number of processing days by dividing the weighted action totals by the fully successful performance standards for each classification of employee involved in processing apportionment claims. For example, we determined that it would take 1,301.8 processing days to complete the initial development of all FY10 apportionment claims by multiplying the ASPEN credit for this function (1 point) by 10,870 and then dividing it by the GS-9 fully successful performance standard of 8.35 points. See table 2 below for breakdown by job function. 6. To determine the required number of FTE for each weighted action, we divided the number of required processing days by the standard number of employee workdays per year. In using the above example for the initial development function, we divided the 1,301.8 required processing days by 197 (standard number of employee workdays) to determine the 6.6 FTE requirement. For this computation, we used the employee work hour number of 1576, which is the standard for C&P budget formulations, and divided this number by 8 (number of hours in a standard workday). 7. The same logic was followed to determine required FTE to process appeals. See Table 3 below. TABLE 2 Fiscal Year 2010 FTE Requirements for Apportionment Claims
Action Number** Completed Apport. Claims FY10 10,870 10,870 10,870 Total Wgt. Actions 1087 10,870 3,587.1 Employee Processing (Fully Days Successful (based on Production FS Perf. Standard) Standard) Claims Asst GS-5 (8.35) VSR GS-9 (8.35) SVSR GS-11 (10.5) VSR GS-9 (8.35) SVSR GS-11 (10.5) NA 130.2 1301.8 341.6 Average Employee Work Days Per Year (1576/8) 197 197 197 Estimated FTE required to complete function .7 6.6 1.7

Wgt*

Establishment of EP Development Post-D Authorization of initial rates Post-D Authorization Post-D Authorization of final award Total

.1 1 .33

201 312 417

1.5 .33

413 417

10,870 10,870

16,305 3,587.1

1952.7 341.6

197 197

9.9 1.7

3.26

NA

10,870

35,436.2

4067.9

197

20.6 FTE

* Weight for apportionment actions from ASPEN for FY 2010 ** Action Numbers from apportionment actions from ASPEN for FY 2010

117

TABLE 3 Fiscal Year 2010 FTE Requirements for Apportionment Appeals

Apport. Action Appeals Wgt Number Recd FY 2010 Appeal Record Established Appeals Development Appeal Action Release Appeal Decision Total .5 503 521 Total Wgt Employee (Fully Successful Production Standard) Claims Asst GS-5 (8.35) Claims Asst GS-5 (8.35) DRO (3) VSR GS-9 (8.35) Processing Days (Wgt/Prod Standard) 31.2 Average Employee Work Days Per Year (1576/8) 197 Estimated FTE Required to Complete Function .2

260.5

.75 1 .75

504 201 506 and 508 NA

521 521 521

390.8 521 390.8

46.8 173.7 46.8

197 197 197

.2 .9 .2

521

1563.1 NA

298.5

197

1.5 FTE

Assumptions Some completed claims used in this cost equivalent analysis may have erroneous apportionment claim labels due to user error. Similarly, there may have been apportionment claims not counted in our analysis due to user error, (i.e., not selecting the correct claim label). Some apportionment claims required an inordinate amount of processing days. For example, there were 1,080 out of the 10,870 claims that took one year or more to process. The average days to complete for these 1,080 claims was 471 days (compared to 172.6 days for the overall apportionment inventory). Some of the 10,870 apportionment claims could potentially represent apportionment decisions that are not subject to the proposed legislative change, (e.g., apportionments due to incarceration). However, the number of such decisions not subject to the law change would be minimal. For purposes of this cost equivalent analysis, C&P did not account for the down time (excused time from production time), movement of files, paper costs, and other administrative costs required in the processing of apportionment claims. In terms of calculating work output, C&P assumes the above-described variables will offset one another, and that the workload analysis contained herein provides an adequate picture of the apportionment workload.

118

Appendix 3: Section 1.3 Service-Connected Burial Allowance for Sec. 1318 DIC recipients

Cost Benefit Analysis: Estimated Benefits Cost: Benefit cost is estimated to be $1.2 million during the first year, $5.1 million for five years, and $7.3 million over ten years. Benefits Cost Methodology: According to the Office of Performance Analysis and Integrity, there were 2,584 survivors under Section 1318 that were denied service-connected death allowance in FY 2010. This is approximately 0.75 percent of the total survivor compensation caseload (343,039) in FY 2010 from the 2012 Presidents Budget. This percentage (assuming it remains constant) is applied to the survivor caseload over ten years from the 2012 Presidents Budget to calculate the number of survivors under section 1318 that would qualify to receive the service-connected burial allowance. Obligations are calculated by taking the difference of service-connected burial allowance and basic burial and plot allowance. Public Law 111-275 amends sections 2303 (a) and (b) to increase burial and plot allowance from $300 to $700 for each benefit. In addition, the amendment also provides for annual increases based on the Consumer Price Index. The effects of Public Law 111-275 are reflected in this cost methodology.

Fiscal Year 2013 2014 2015 2016 2017 5- Year Total 2018 2019 2020 2021 2022 10- Year Total

Caseload 2,982 3,047 3,118 3,195 3,278

Obligations ($ in 000's) 1,222 1,124 1,035 934 826 5,141 709 583 447 299 154 7,333

3,365 3,457 3,554 3,653 3,705 33,353

Estimated GOE cost equivalent:

119

The total GOE cost equivalent for this proposal is $1.1 million for the first year, $6.9 million for five years, and $16 million for ten years. GOE Methodology: Data Source: In determining the 18 FTE cost equivalent associated with this proposal, C&P Service relied upon the following sources: Data provided to Compensation Service from Performance, Analysis, and Integrity on April 19, 2011 and April 22, 2011 RVSR Performance Plan VSR Performance Plan Methodology: We determined FTE levels required to process adjudicative actions relating to the resolution of DIC under section 1318 and service-connected death cases in which the Veterans surviving spouse is otherwise entitled under section 1318. This number for FY 2010 was identified as 6,505. As the foundation for this analysis, we used current VSR and RVSR production standards and weighted actions from ASPEN rather than the normal budget formula, which relies upon Work Rate Standards. This method depicts the amount of actual work required to complete adjudicative actions to resolve the Service Connected Death issue that will not be required if this proposal is adopted. Step-By-Step Process of Determining Required FTE Levels 1. We added up weighted actions that are required to complete a DIC rating when the Veterans surviving spouse is otherwise entitled under section 1318, to include entitled to DIC under this section and section 1311. This equates to 2.5 weighted actions. By multiplying the weighted actions by 6,505, we determined the total number of weighted actions nationwide was 16,262.5. 2. We determined that it would take 3,531.5 days to process the 16,262.5 weighted actions represented by the nationwide workload in FY 2010. We calculated the number of processing days by dividing the weighted action totals by the fully successful performance production standard for VSRs and RVSRs for an 8-hour day. We used 5 weighted actions for VSR, GS 9, and 3.5 weighted actions for RVSR, GS 12. 3. To determine the required number of FTE to complete inventory of pertinent DIC decisions, we divided the number of required processing days (3,531.5) by the standard number of employee workdays per year (197). We determined that 18 FTE are required to process this workload. For the standard workday computation, we used the employee work hour number of 1576, which is the standard for C&P budget formulations, and divided this number by 8 (number of hours in a standard workday) to ascertain the 197 days. See table below.

120

Fiscal Year 2010 FTE Requirements for Completion of DIC Rating

*Weight Number Total of DIC Wgt. grants in Actions FY 2010 in which Veteran was 100% for 10 years 1 6,505 6,505 Employee (Fully Successful Production Standard) Processing Days (based on FS Perf. Standard) Average Employee Work Days Per Year (1576/8) Estimated FTE required to process workload

Development of 140 EP Claim Making 140 EP ready to rate Rating of 140 EP Total

VSR, GS-9 (5) VSR, GS-9 (5) RVSR, GS12 (3.5) NA

1301

197

6.6

6,505

6,505

1301

197

6.6

.5 2.5

6,505 6,505

3,252.5 16,262.5

929.3 3,531.3 197

197

4.7 18 FTE

* Weight for actions from VSR and RVSR Performance Standard Assumptions We anticipate that no formal rating action will be required for the 6,505 cases that are specific to the GOE cost equivalent estimate. VA will implement a procedural change to allow VSRs to administratively award DIC under section 1318 (and other ancillary benefits such as Dependents Educational Assistance and CHAMPVA), when applicable. Due to this proposed procedural change, issuing a formal DIC rating for cause of death in these instances would be merely duplicative and therefore considered a moot issue. Because the current $2,000 service connected death burial allowance will be authorized under DIC 1318 entitlement, there are no business or legal requirements to complete a formal rating decision to resolve a service-connected death issue.

121

Appendix 4: Section 1.6 Elimination of Hospital Adjustments Cost Benefit Analysis: Benefit Costs: See Cost/Benefit Analysis below. GOE Costs: We expect a decrease in workload of approximately one half of one percent of the national compensation and pension workload. No increases in GOE costs are expected as a result of this proposal. Study Methodology Costs were identified and quantified in monetary terms Benefits were identified and quantified in monetary terms Costs and benefits compared and the difference between the two determined Other costs such as labor time of reviewing reports Data and Sources The parameters for the analysis are workload data EPs 135, 293, 320, and 600) for FY03 through FY07; FTEs and FTE costs (salaries) for FY03 through FY07; Account Receivable and Waiver for FY03 through FY07; sample hospital adjustment data from the field; and hospital discharge data from FY03 through FY07. Workload data were obtained from: the COIN DOOR 1001 Report, Analysis of Compensation and Pension Workload; one-month workload sample data from the Oakland and Buffalo ROs and the Philadelphia and St. Paul PMCs. Numbers of nationwide hospital discharges were obtained from VHA Support Service Center, who receives Patient Treatment Files containing veteran discharge data from the Austin Information Technology Center. Accounts receivable and waiver data were obtained from the VA Debt Management Center. Cost Indicators Hospital Adjustment Workload Costs The first step in calculating workload cost is identifying EPs related to hospitalization. Four EPs (135, 293, 320, and 600) constitute the hospital adjustment workload. EPs 135 and 320 account for most of the hospital adjustment workload.

122

EP 135 applies to all reductions based on hospitalization (including nursing home or domiciliary care at the VA expense) and subsequent resumptions based on discharge from hospital. EP 320 is applicable upon receipt of hospital or outpatient reports which have been properly referred for review and appropriate action concerning treatment for a service-connected disability (M21-4, Appendix C) EPs 293 and 600 are overlapping and ancillary to EPs 135 and 320. EP 293, COWC decisions-issued following requests for waiver of indebtedness. EP 600 applies to due process notification of a proposed action. Table 1 Hospital Adjustment Workload Summaries for FY 03 through FY 07

Fiscal National Year Work Load *

EP 135 Work load

EP 293 Work load Related to Hosp. Adjust.

EP 320 Work load

Ratio of EP 135 that Results in EP 600

EP 600 Work load Related to EP 135

Ratio of EP 320 Related to Hosp. Adjust.

EP 320 Work load Related to Hosp. Adjust.

Ratio of EP 320 that Results in EP 600

EP 600 Work load Related to EP 320

Total Hosp. Adjust. Work load (EPs 135, 293,320, and 600) 11,690

Total Hosp. Adjust. Work load as a % of National Work load

03 2,127,428 4,981

53 6,899

0.90

4,483

0.30

2,070

0.05

103

0.5

04 2,253,191 5,438

419 7,256

0.90

4,594

0.30

2,177

0.05

109

12,737

0.6

05 2,145,471 6,983

907 7,488

0.90

6,285

0.30

2,246

0.05

112

16,533

0.8

06 2,183,365 6,144 07 2,313,267 5,195

92 7,071 486 6,290

0.90 0.90 0.90

5,530 4,676 25,568

0.30 0.30 0.30

2,121 1,887 10,501

0.05 0.05 0.05

106 94 524

13,993 12,244 67,197

0.6 0.5 0.6

Totals 11,022,722 28,741 1,957 35,004

* National workload represents total number of claims received during the fiscal year; includes rating, nonrating, eligibility, and ancillary claims; special reviews, (i.e. 680/690 series EP) are not included in this number. Formula: EP 600 workload related to EP 135 for each FY = 0.9 multiplied by EP 135 workload. The assumption is that 90 percent of EP 135 will result in reduction of benefits, and the establishment of due process EP 600 Note: Because of data limitations, all assumptions in this section were made by soliciting opinions from VARO and VACO subject matter experts.

123

EP 320 workload related to hospital adjustment for each FY = 0.3 multiplied by EP 320 workload. The assumption is that 70 percent of the EP 320 cases are claims for increase and 30 percent are due to hospital adjustment. EP 600 workload related to EP 320 for each FY = .05 multiplied by EP 320 workload related to hospital adjustment. The assumption is that 5 percent of hospital adjustment EP 320 will result in the establishment of EP 600. Total Hospital Adjustment workload for each FY = EP 135 workload + EP 293 workload related to hospital adjustment + EP 320 workload related to hospital adjustment + EP 600 workload related to hospital adjustment. Total Hospital Adjustment Workload as a percentage of Total National Workload for each FY = Total Hospital Adjustment Workload for each FY divided by National Workload for each FY multiplied by 100. As Table 1 shows, in FY03, hospital adjustment workload consisted 0.5 percent of total national workload. In FY04, it increased to 0.6 percent. In FY05, it increased further to 0.8 percent. In FY06 and FY07, it was calculated as 0.6 and 0.5 percent, respectively. For the period FY 03 through 07, the cumulative hospital adjustment workload represented 0.6 percent of the total national workload. Hospital Adjustment Full Time Employees Requirement: RO and PMC employees process the hospital adjustment cases. The number of employees required for this workload is commensurate with the amount of workload received. VBA standard methodology for calculating FTE need was applied, and the result is shown in the table below. Table 2 Hospital Adjustment Workload FTE Requirement (FY03 FY07)
EP WRS SMH FY 03 FY 04 FY 05 FY 06 FY 07 FY03 FY04 FY05 FY06 FY07 FY03 FY04 FY05 FY06 FY Total Work Work Work Work Work Total Total Total Total Total FTE FTE FTE FTE 07 FTE load load load load load Work Work Work Work Work FTE load load load load load Man Man Man Man Man Hours Hours Hours Hours Hours 4.2 .04 3.6 4.3 4.6 .3 3.8 4.4 5.9 .7 3.9 5.9 5.2 4.4 24.3 1.5 3.7 3.3 18.3 24.2

135 1.32 1576 4,981 5,438 6,983 6,144 5,195 6,575 7,178 9,218 8,110 6,857 293 1.20 1576 53 419 907 486 64 503 1,088

320 2.73 1576 2,070 2,177 2,246 2,121 1,887 5,651 5,943 6,132 5,790 5152 600 1.46 1576 4,586 4,703 6,397 Total 4,770 6,696 6,866 9,340

11,690 12,737 16,533 13,992 12,338 18,98520,92226,49522,23719,556 12.1 13.1 16.4 14.2 12.5 68.3

124

Formula: FY EP Hospital Adjustment Total Workload Man Hours (purple) = FY EP Workload multiplied by EP Work Rate Standard. FTE = FY EP Total Workload Man Hours divided by Standard Man Hour. EP 135 workload required 4.2 FTEs in FY03, 4.6 FTEs in FY04, 5.9 FTEs in FY05, 5.2 FTEs in FY06, and 4.4 FTEs in FY07; EP 293 workload required less than 1 FTE for each FY 03, 04, 05, 06, and 07; EP 320 workload required between 3 and 4 FTEs for each of the FYs 03,04, 05, 06, and 07; EP 600 workload required 4.3 FTEs in FY03, 4.4 FTEs in FY04, 5.9 FTEs in FY05, 5.2 FTEs in FY06, and 4.4 FTEs in FY07.

For the 5-year period FY03 through FY07, a total of approximately 68 FTEs (14 FTE per year) processed the hospital adjustment workload. Full Time Employee Costs Having identified the number of FTEs required to process the hospital adjustment workload, the next step in the cost analysis is to compute their salaries. The result of the computation is summarized in the table below. Table 3 Hospital Adjustment Workload FTE Costs (FY03 FY07)
Fiscal Year 03 04 05 06 07 Total FTEs for FTEs for FTEs for FTEs for GSAnnual EP 135 EP 293 EP 320 EP 600 Work Work Work Work Total Level of Salary of Total Annual load load load load FTEs FTEs FTE ($) Salaries ($) 4.2 .04 3.6 4.3 12.1 9 45,383 549,134 4.6 .3 3.8 4.4 13.1 9 47,390 620,809 5.9 .7 3.9 5.9 16.4 9 49,145 805,978 5.2 .07 3.7 5.2 14.2 9 50,248 713,522 4.4 .4 3.3 4.4 12.5 9 51,157 639,463 24.3 1.5 18.3 24.2 68.3 9 243,323 3,328,906

Note: GS-9, Step 5 represents the averaged salary scales (GS 7, 9, 10, and 11) of hospital adjustment FTEs; Annual salary scale is based on OPM salary table. Formula: Total Annual Salary = Total number of FTEs in FY multiplied by the Annual Salary of FTEs. $549,134 for 12.1 FTEs in FY03 $620,809 for 13.1 FTEs in FY04 125

$805,978 for 16.4 FTEs in FY05 $713,522 for 14.2 FTEs in FY06 $639,463 for 12.5 FTEs in FY07

For FY03 through FY07, the calculated combined salary for 68.3 FTEs who processed hospital adjustment workload was $3.3 million ($665,781 per year). Labor Costs of Running, Screening, and Reviewing Hospital Reports Determining the labor time of running, screening, and reviewing hospital admission reports at the national level is an important part of determining the overall cost of this program. Because of the nature of these reviews, (i.e. many reports require no action), there is limited data at the national level that demonstrates the work output of these reviews. Thus, two sources of data were generated and used for this study. First, a sample of data was gathered at four regional offices during a one-month review in October 2005. Second, data regarding the number of hospital discharges nationwide was obtained from VHA. VHA Data The numbers of hospital discharges were obtained from the VHA Support Service Center. The VSSC regularly receives Patient Treatment Files containing veteran discharge data from the Austin Information Technology Center. The table below shows the total number of hospital discharges nationally over a 5-year period. These totals represent unique discharges. It is important to note that, for each discharge, one of following 8 codes is assigned to the veteran: 1. 2. 3. 4. 5. 6. 7. 8. Service Connected greater than 10% Service Connected less than 10% Nonservice Connected + Service Connected greater than 10% Nonservice Connected + Pension + Service Connected less than 10% Nonservice Connected + Pension Nonservice Connected + Service Connected less than 10% Nonservice Connected (totals not used for study) Non-Veteran (totals not used for study)

For the purposes of this analysis, the totals from codes 1 through 6 were used since it is unlikely that regional office employees would review discharge reports from veterans with code 7 and 8. The table below lists the total number of national hospital discharges along with the numbers from codes 1 through 6.

126

Table 4 Total Numbers for Hospital Discharges (FY03 FY07)

Fiscal Total # of Code 1 Code 2 Code 3 Code 4 Year Discharges* 03 322,688 68,462 5,431 155,655 4,664 04 337,269 71,807 5,531 164,660 4,880 05 348,110 73,041 5,997 173,847 4,744 06 347,510 71,756 6,140 177,510 4,540 07 364,197 73,868 6,794 189,529 4,692 Total 1,719,774 358,934 29,893 861,201 23,520 Code 5 Code 6

67,546 20,930 69,589 20,802 70,127 20,354 67,295 20,269 69,197 20,117 343,754 102,472

* Represents numbers of veterans discharged with assigned codes 1 through 6 at VAMCs, VA Domicilaries, VA Nursing Homes, and Community Nursing Homes or NonVA Hospitals at VA expense. One-Month Field Study A sample of data was gathered at four regional offices during a one-month review in October 2005. The purpose of this review was to determine the amount of effort spent in running, screening, and reviewing hospital admission and discharge reports. Once the data was collected from the Buffalo and Oakland Veteran Service Centers, and St. Paul and Philadelphia Pension Maintenance Centers, it was extrapolated to estimate national statistics. Because of the relatively short time frame for the review, along with the limited number of regional offices involved, the numbers reflected are considered estimations. Highlights from study from October 24, 2005 to November 14, 2005: The sample regional offices spent a total of 14 hours of review time during the study period. This equates to 5,119 hours nationally to review compensation and pension hospital reports in FY05. (FY05 is used as base year) A total of 1152 compensation and pension hospital reports were reviewed during the study period. This equates to 424,764 reports generated annually across the nation in FY05. Only 3 percent of the total reports reviewed actually resulted in adjustment actions while 97 percent required no action. Based on the 5,119 hours of review time, the annual cost of running and screening compensation and pension hospital reports was $120,543. Note: Although the number of hospital reports estimated from the VBA field study exceeds the number reported by the VHA Support Service Center by approximately 20 percent, the numbers are not contradictory. It is common for multiple discharge reports to be generated for the same veteran if he or she fits more than one of the categories 127

listed in the Compensation and Pension Records Interchange. For example, multiple reports are generated for a veteran in receipt of nonservice-connected pension with aid and attendance, and who also has a service-connected condition. In this case, each of these reports requires review by a regional office employee to determine if adjustment is necessary. The VHA data serves to support the VBA data. To simplify the presentation of data from the field study, we have consolidated and placed key data into a single table below. Again, the local data was obtained and extrapolated to arrive at the national numbers. Table 5 Hospital Adjustment Data for Reviewing Reports (FY03 FY07)
FY Total # of Total # of Pension Comp. Reports Reports Reviewed Reviewed By the By the ROs PMCs (Per (Per Year) Year) 39,336 381,444 41,664 404,076 39,672 384,756 40,380 391,572 42,072 414,876 203,124 1,976,724 Total # Total Time Standard Required Annual Total Comp. And in Hours Man FTE (Per Salary of Annual Pension Spent to Hours in Year) FTE ($) Salaries Reports Review a Year Reviewed Reports by Nation by Nation (Per Year) (Per Year) 420,780 5,080 1576 3.2 45,383 145,226 445,740 5,370 1576 3.4 47,390 161,126 424,428 5,119 1576 3.2 49,145 157,264 431,952 5,220 1576 3.3 50,248 165,818 456,948 5,531 1576 3.5 51,157 179,050 48,704 2,179,848 26,320 1576 16.6 808,484 (average)

FY03 FY04 FY05 FY06 FY07 Totals

Formula: The following national workload trend factors were used to compute the numbers of reports reviewed and total time spent for years FY 03, 04, 06, and 07. The FY05 data is used as the base year. Workload trend factors were calculated using the national workload figures from Table 1, which were obtained from COIN DOOR 1001 Report, Analysis of Compensation and Pension Workload. # of Reports Generated for FY04 = Total # of Reports Generated from FY05 multiplied by 1.0502 (national workload trend factor). National workload in FY04 was 5.02 percent higher than FY05. # of Reports Generated for FY03 = Total # of Reports Generated FY04 multiplied by .944 (national workload trend factor). National workload in FY03 was 5.58 percent less than FY04. Total # Reports Generated for FY06 = Total # of Reports Generated FY05 multiplied by 1.0177 (national workload trend factor). National workload increased from FY05 to FY06 by 1.77 percent.

128

Total # of Reports Generated for FY07 = Total # of Reports Generated FY06 multiplied by 1.0595 (national workload trend factor). National workload increased from FY06 to FY07 by 5.95 percent. In summary, it took an average of 5,264 man-hours per year at the national level to run, screen, and review the hospital admission/discharge reports. This required an average of 3.3 FTE per year with an average salary of $48,665 over the 5-year study period. As mentioned above, only 3 percent of the total reports reviewed actually resulted in adjustment actions while 97 percent required no action. BENEFITS INDICATOR: Accounts Receivable as a Result of Hospital Adjustments The only financial benefit or costs saving to the taxpayer that can be identified with the administration of the hospital adjustment program are the Accounts Receivable or the overpayment created. Accounts Receivable in this case is considered revenue (assuming they are collected). Both the Accounts Receivable and Waiver statistics are from hospital adjustment (transaction reason codes 35 and 36). Transaction reason code 35 is for hospital admission adjustment, while transaction reason code 36 is for hospital discharge adjustment. Table 6 Summary of Accounts Receivable/ Waiver Data (FY03 FY07)
Account Receivables Number of Amount of Current Amount of Waived as a Ratio Original Original Amount of Accounts of Original Accounts Accounts Receivable Fiscal Accounts Accounts Year Receivable Receivable ($) Receivable ($) Waived ($) Receivable 03 53 319,633.35 111,618.72 34,933.17 0.11 04 419 1,050,334.07 211,639.52 178,476.59 0.17 05 907 2,404,210.25 1,212,297.61 201,876.88 0.08 06 92 489,632.47 176,631.92 267,552.62 0.55 07 486 1,301,517.00 245,489.00 195,112.00 .15 Totals 1,957 5,565,327.14 1,957,676.77 877,951.26 0.16

Accounts Receivable and Waivers Source: VA Debt Management Center, St. Paul, Minnesota Formula: Ratio of Waiver = Accounts Receivable Waived divided by Original Accounts Receivable As Table 6 indicates, 16 percent of the original accounts receivable generated from FY03 through FY07 were waived. However, according to the Debt Management Center, and confirmed by the VBA Office of Resource Management, the amount of

129

current accounts receivable include pending requests for waiver cases in which decisions have not been rendered. It also includes those decisions that have been rendered but are under appeal. As a result, the amount waived will likely increase by an unknown amount. In addition, the waiver figures represent only the amount of money waived, and not necessarily the number of waiver cases granted. The Debt Management Center was unable to audit the number of cases waived because the VBA Benefits Delivery Network system retains only the most recent award transaction. Prior transitions are written over by later ones, so only the latest award actions are available for analysis while only fragments, if any, of an earlier transaction might remain intact. For example, a reduction due to hospitalization may have been later overwritten by a dependency adjustment, or vise versa. Thus, the data is inherently limited. Nonetheless, COWC statistics from VBA Office of Resource Management (Finance) show an average of 55 percentage of waiver requests were granted in FY03 through FY07 at the national level. COST BENEFIT MATRIX OF THE HOSPITAL ADJUSTMENT PROGRAM Table 7 Summary of the financial cost and benefit associated with the hospital adjustment program (FY03 FY07)
Costs Benefits Variance +/Cost of Cost of processing hospital Running adjustment and A/Cs A/Cs Benefits Screening Receivable EPs (Total Receivable minus Costs salary) Reports ($) Waived ($) Total Costs ($) ($) ($) 03 549,134 145,226 34,933 729,293 319,633 -409,660 04 620,809 161,126 178,477 960,412 1,050,334 89,922 05 805,978 157,264 201,877 1,165,119 2,404,210 1,239,091 06 713,522 165,818 267,553 1,146,893 489,632 -657,261 07 639,463 179,050 195,112 1,013,625 1,301,517 287,892 Totals $3,328,906 $808,484 $877,952 $5,015,342 $5,565,326 $549,984 Fiscal Year

Formula: Total Costs = FTE Salary for each FY + Cost of Running and Screening Reports + Accounts Receivable Waived for each FY. Benefits = Original Account Receivables for each FY (see Table 6) minus Account Receivables Waived for each FY. Variance = Benefits minus total costs (if variance is negative, that means total costs exceed benefits, and vice versa)

130

Appendix 5: Cycle Impact Matrix Changing the Game: Disability Claims Process 2012 Claims Cycle
Proposal Control Time Awaiting Dev Awaiting Evidence Awaiting Decision Awaiting Award Awaiting Auth

Accuracy

1.2 Eliminate of certain types of apportionments 1.3 SC burial for 1318 DIC 1.4 Amend 38 USC 5103 1.5 Amend 38 USC 5103A(b) 1.6 Eliminate hospital reductions 2.2 Single-flow appellate process 2.3 Remove discretion at 38 C.F.R. 3.326 2.4 Amend 38 C.F.R. 3.159 regarding favorable awards 2.5 Amend 38 C.F.R. 3.156 regarding New & Material evidence 2.6 Amend VAs apportionment regulations 2.7 Amend 38 C.F.R 3.155(c) to mandate the use of VA Form 21526B 2.8 Section-5103 notice on VA forms 2.9 Infer and award benefits for certain claims, instead of inviting the claim 2.11 Amend 38 C.F.R. 3.1600 to streamline burial claims 3.1 Reverse practice re: deferrals/denials 3.2 Admin DIC awards 3.4 Modify VA Form 21-4142 4.1 Exam by exception 4.2 Simplification of reasons and bases on VA Rating Decisions 5.1 Project for Ready-to-Rate cases involving VSOs 6.2 Add a timeliness error measure 6.3 Quarterly meeting between the Policy and Quality Assurance staff

x x x

x x x x

x x x x x

x x x x x x x x x x x x x x x x x x x x x x x x x

x x x x x x x x x x x x x x x x x x

x x

x x

x x

x x x x

131

Appeals Cycle
Proposal 1.1 First-instance Board jurisdiction 1.2 Eliminate of certain types of apportionments 1.4 Amend 38 USC 5103 1.5 Amend 38 USC 5103A(b) 2.1 Eliminate DRO election letter 2.2 Single-flow appellate process 2.3 Remove discretion at 38 C.F.R. . 3.326 2.4 Amend 38 C.F.R. 3.159 regarding favorable awards 2.5 Amend 38 C.F.R. 3.156 regarding New & Material evidence 2.6 Amend VAs apportionment regulations 2.7 Amend 38 C.F.R 3.155(c) to mandate the use of VA Form 21-526B 2.8 Section-5103 notice on VA forms 4.1 Exam by exception 6.2 Add a timeliness error measure NOD DRO Election Letter SOC F9 Cert to BVA BVA Decision

x x x

x x x x

x x x x

x x x x x x x x x x

x x x

x x

132