Saturday, June 20, 2009

He never works








Late yesterday, well after 6:00 p.m., the House Committee on Veterans Affairs' Subcommittee on Disability Assistance and Memorial Affairs called their 2:00 p.m. hearing to order. US House Rep John J. Hall chaired the subcommittee hearing, "Addressing the Backlog: Can the U.S. Department of Veterans Affairs Manage One Manage One Million Claims?" Hall observed, "This is a problem that's plagued the VA and the veterans it's supposed to serve for years."

The first panel was composed of the American Legion's Ian de Planque, Veterans of Foreign Wars of the United States, Disabled American Veterans' Kerry Baker, Service Women's Action Network's Rachel Ntelson and Gulf War veteran David Bohan of Oregon.
Bohan shared his personal story which is not unique to him and which members of the House Veterans Committee and its various subcommittees have heard repeatedly but there's still been no action on it -- even with John Hall having proposed legislation to assist with this (HR 952).

David Bohan: A counselor at the VA in Roseburg suggested I pursue a claim for my PTSD and for injuries to my left foot during the time I was stationed at Fort Riley Kansas and recommended I contact the American Legion for help. The VA system is confusing, overwhelming and it is not all friendly to veterans. [. . .] So many of the people at VA are not veterans and don't understand what we are going through. You end up feeling like some of them care more about their rules and regulations and paperwork than they care about the veterans. We veterans don't have any idea where the piece of paper or that record is after all of the time. Regarding military records, veterans don't have any idea where our records are kept. And apparently the military doesn't know either. I was up late last night digging through boxes, looking for records to prove I was in the army, that I was in the Gulf War and that I had been in a combat -- in combat and that I had all the necessary stressors to qualify for VA assistance. The memories -- the memories that going through all these materials from my army days were very painful. With the help of American Legion service officer Gregg Demaris, I received a PTSD rating from the BA. But the issues with my foot have not yet been -- been addressed. My medical records from Fort Riley are missing. I've spent hour on the telephone, I've sent faxes, I've even sent e-mails. But after months of trying, no one can find my records. The hospital at Fort Riley says they do not have the records of the surgeries on my foot. I have contacted the National Personnel Records Center in St. Louis many, many times. But I still do not have the records of the multiple surgeries on my foot. Until I can obtain those records and present them to the VA, I cannot pursue the rest of my case.

HR 952 would make it much easier for veterans suffering from PTSD to receive treatment for it without jumping through hoops of paperwork. The measure would not help David Bohan with his foot injury. The issue of the foot injury, however, is something that a call to one of his senator's office should have resolved already. (Via the office lighting a fire under the VA. I'm not stating Bohan hasn't pursued that. I would guess he has. I'm stating someone's dropping the ball: Gordon Smith or Ron Wyden -- or both.) We'll note this section of Rachel Ntelson's opening remarks.

Rachel Ntelson: To begin, studies indicate an institutional bias in favor of claimants with combat experience, an advantage which disproportionately favors men. Not only do claim processors fail to understand the degree to which women are effectively -- if not nominally -- serving in combat positions but they also fail to appreciate the extent to which service members in non-combat occupations and support roles are exposed to traumatic events. Among the most pervasive stressors experienced by military women are incidents of sexual assault and harassment. The prevalence of sexual assault in the military is hardly news and has been the subject of a number of recent Congressional hearings and Pentagon reports. By some accounts, nearly a third of female veterans report episodes of sexual assault during military service while seventy-one to ninety percent report experiences of sexual harassment. These experiences are closely associated with PTSD in a variety of studies; in fact, military sexual assault is a stronger predictor of PTSD among women veterans than combat history. Likewise, studies indicate that sexual harassment causes the same rates of PTSD in women as combat does in men. In spite of this correlation, the VA grants benefits to a significantly smaller percentage of female than male PTSD claimants. This disparity stems largely from the difficulties of substantiating experiences of military sexual assault -- especially in a combat arena. Under military regulations, for example, sexual harassment investigations are only retained on file for two years from the close of each case. While criminal investigations of sexual assault are better documented, eighty percent of assault victims fail to report the offense and over twenty percent of those who do file reports opt for a 'restricted' mode that precludes official investigation. Although training and reference materials for raters provide a great deal of guidance on how combat medals and commendations may be used to support PTSD claims, they make little mention of how to address the challenges of documenting military sexual assault as an in-service stressor.

The first panel was the only one not staffed by government employees. We'll note a series of exchanges from it and these are my notes and I may have missed a word or two. (I was tired. During the long wait for the hearing to start, I believe it was Kerry Baker who was on his laptop throughout the wait using the time wisely. Most waiting were thinking, "This has to start soon. This has to." Or as one reporter put it during the long wait, "It won't look very good for the House Veterans Committee if they can't handle a hearing on whether or not the VA can handle claims." No, it wouldn't. That's all stated because the Ranking Member may have had good questions but my pen skids right across the paper during his questions. It was a long wait for the hearing to start.)

Chair John Hall: Mr. de Planque, there have been some concerns and misperceptions about the role of service connection in being able to access VA health care. If a veteran is not service connected than how likely is it that he or she will get turned down for VA health care treatment? Should veterans with claims pending adjudication be held eligible for VA health care and should mental health counseling be offered to all veterans during the stress of the VA claims processing system?

Ian de Planque: In the sense of that, Mr. Chairman, it's -- it's actually -- it's a slightly complicated issue and there have been a number of things that have changed although they are attempting to bring them back forward. In 2003, when the category eight veterans were shut out of VA from treatment, it made it very difficult for them to receive treatment for -- for medical conditions. And that is being phased back in. However veterans who are serving now in the present conflict are entitled to five years of VA health care after they demobilize, after they are discharged from the military and it will run out after that point and they will not be able to get health care for the conditions that are not service connected. With regards to mental health care, in many of the VA outreach clinics they're not in a position to be turning people away from trying to get the care they need but it's not always capable of getting the full level of care that particularly severe cases of mental disorders which can arise. It is possible to get some degree of health care within certain circumstances when you fall into certain categories as a veteran but in terms of an all inclusive group of veterans being able to receive health care if they are not service connected for a condition than that is not the case.

Chair John Hall: I would ask you one more question if I may which is that some of the solutions highlighted in your testimony were already considered and enacted by Congress in PL110-389. Do you think these provisions are sufficient or are there other legislative changes the Legion would like to see Congress enact?

Ian de Planque: In some sense with the changes which have been enacted, they've all been enacted very recently and we're seeing promising signs for example with what VA is beginning to do with improving electronic communication and making 4As into the IT solutions. They're showing promising signs but it's still very early to determine how overall effective those will be. As I've stated before, it would be beneficial to work with the -- the changes that are creating improvements but we don't want to just change the set of tools that continues to operate within the same system. If we -- if you're continuing to make the same problems but doing it electronically that doesn't make it any better than if you're making the same mistakes and doing it on paper. In terms of legislative solutions which could be brought forward, already up for consideration are the -- as we mentioned in our testimony -- the changes to the Section 1154 which covers veterans -- currently covers veterans who have engaged in combat in proving the occurrence of incidents that are consistent with combat and the expansion of it to combat zones as we recognize the non-linear battlefield of modern warfare and that the documentation of all such incidents for all soldiers -- not just soldiers who have infantry cross rifles and can get a combat infantry badge. Not just soldiers who are wounded and receive a Purple Heart which makes things obvious, but all the soldiers who are deployed to combat zones and experience these incidents which are sometimes difficult to document. So continuing to work towards the legislation and pass solutions on that front would be a great help in reducing because it would reduce a lot of their burden for overdeveloping. They would be able to grant that one point and they wouldn't spend a lot of time needlessly developing.

Chair John Hall: Thank you sir, and Mr. Bohan once again thank you for your testimony and your service. It sounds like nobody from VA mentioned to you that you could file a claim even though you were in treatment for over 15 years before you did file. Would your experience with this process have been easier if you had filed a claim right away?

David Bohan: Mr. Chairman, not knowing what the technology back then at that point, I'm assuming there would be roadblocks also as well. But that's hard to say because I did not file back at that time.

Chair John Hall: Fair enough. Thank you. And, Mr. Jackson, I'm interested in the provisional claims processing proposal you mentioned in your testimony. Could you elaborate on how it would work practically by walking us through the first steps of finality for a veteran who might file a claim under this system?

Robert Jackson: My pleasure, Mr. Chairman. What this does, it essentially is not a -- it's not a permanent fix. What it does is buys time. What you're doing is you're -- you're allowing existing information to be used for a provisional rating. The veteran then -- if he or she decides that that rating is not what they think is sufficient then they can continue the process that they normally would. The goal of the provisional proposal that Jerry [Manar] has created is to -- is to get claims -- new claims through the system quickly allowing the VA workforce to work on the backlog. It's -- it's something that's not going to be a permanent fix but it's something that could certainly alleviate some of the workload.

This is where the Ranking Member Doug Lamborn came in. I believe I nodded off for his entire questioning of the first panel. Here's where Hall resumed speaking.

Chair John Hall: In listening to your testimony I'm reminded of a hearing we held over a year ago on artificial intelligence, Dr. Randy Miller, Chair of Biomedical Informatics, Vanderbilt University made similar observations about reducing the days to process claims by using clinical informatics which is what your imaging scanning center would seem to do. Have you also considered that the scanned image should be converted into a standardized electronically processed format? What is the feasibility of implementing the proposed centralized information system that you mentioned in your testimony?

Kerry Baker: Well Mr. Chairman, if you're talking about -- are you suggesting if we use something like an image scanning center would you do more than just copy the document? Would you have a workable format that could provide some sort of database and search-able tool? That would absolutely be preferable. It would allow people to search the claims file much, much easier than sitting there having to read 1000 pages on the computer. The feasibility of that? I'm afraid I don't have the expertise. I don't know where VA is in their IT development, if they could do something like that. As I understand it, there's a lot of companies out there and processes out there that can capture that sort of data. I just don't know where VA is with that technology.
Chair John Hall: Thank you. And your plan also calls for a reduction time from one year to 180 days of the time that a veteran can make an appeal but then allows them the opportunity to ask for an extension. Other insurance programs have restrictions that do not allow an appeal after the due date. Are their circumstances in which you could see a case being closed and an appeal being disallowed? And should there be a limitation on the number of times that a veteran can appeal the same condition without new evidence?

Kerry Baker: I could see where one could get closed and disallowed if they allowed the six months to run out and they did not request an extension and they couldn't show any cause as to why their appeal should be equitably told. That would be no different than the appeal running out at the in excess of one year point right now. Only right now they cannot request an extension and they cannot be equitably told the court have stopped short of addressing that issue with the appellate period. So we realize that the six months issue may not be met with a lot of favoritism upfront but when you're providing a couple of extra benefits that a lot of people are going without right now -- which is the extension and the equitable tolling -- we think that's more than fair. And it's still six months we're talking about. The average time it takes VA to get an NOD is forty-one days. 90% of all the POs are received in the first six months. So we think in the long run the system will be much better with that. You had a second part of that question?

Chair John Hall: Should there be a limitation on the number of times the veteran can appeal the same condition without new evidence?

Kerry Baker: Well VA -- VA has a process now, a lot of people get it confused. If you -- if you reapply for the same thing and you've been denied for and you don't have any new evidence, what you normally get is -- you will get a decision saying 'you haven't presented new evidence, your claim is not reopened.' However, that issue -- in and of itself -- can be appealed all the way up to the courts. So it is, in effect, a claim within the system -- the claim is an appeal to reopen the claim. During the appelate process, that could be decided in favor of the veteran and goes all the way back down to the beginning just to be reopened and the actual issue decided so I mean there is some convulsion there -- how do you go about, you know -- Iiii -- rectifying that. I wouldn't suggest that you simply not allow the veteran to reopen anything without new evidence, I mean there's a fine line where you start taking away rights as some point. But if they had no evidence whatsoever, that's kind of what they do now. You can just appeal that decision just like you can appeal anything else.

Chair John Hall: Thank you very much. And Ms. Ntelson, thank you first of all for your support of HR 952. The information that you've presented on women's veterans -- women veterans corroborates what we have heard before at our hearings. When the Department of Defense appeared at one of these hearings, they described their PTSD approach as relying on the opinion of the medical examiner which is what it seems you are suggesting. So if VA like DoD instituted a disability evaluation system that relied more on medical opinions than psychometric testing results, do you think this change would be reliable enough for the establishment of compensation?

Rachel Ntelson: Well I think that there's a value in allowing -- a VA professional has a treating relationship with the claimant. To have their word, you know, taken at face value. Presumably since these are VA medical professionals, there's been some sort of vetting, some sort of determination, that their credentials are approriate. So it doesn't make very much sense to me that if somebody has been in a treating relationship with a medical professional or counselor employed by the VA on the VHS side of the equation that -- that somebody on the benefit section to decide that, you know, that person's word isn't good enough.

Chair John Hall: Thank you. And lastly would you please elaborate on your recommendation to incorporate upon request investigative files of harassment and sexual assault into the joint virtual lifetime electronic record. How would thi help women veterans

Rachel Ntelson: Well an enormous problem for women with military sexual trauma in establishing their in-service stressor is that it's so hard to obtain those documents. Like I say there are actual military policies -- especially with harassment as opposed to an actual criminal case of assault that prevent records from even being kept on file for more than a couple of years. So if somehow those -- the documents that do exist could be memorialized and kept within the system, you know, for as long as possible, so that if the claimant elected to they could use that in support of their claim. I think that would be very helpful in establishing that there was an in-service stressor.

The second panel was composed of the VA's Lt Gen James Scott and the VA's Michael Ratajczak. Michael Ratajczak made many sound points in his opening remarks but the point we'll emphasize was his points that managers without experience or with only a little experience when it comes to processing claims are not able to provide training, to supervise or to assist with the work. That's basic but it is a repeated point you will hear from VA as you step away from the appointees and administrators at the top. US House Rep Deborah Halvorson was probably the strongest voice from the committee or the panel on the second panel. She pointed out how confusing the form alone was and how someone's claim being turned down can be confusing and leading to more work as a result of appeals over a denail that may or may not have been judged correctly. Who answers the question when a veteran calls in about a denied claim is a basic question.

Her efforts to keep it basic and simple weren't helped by Ratajczak meandering answer that did not address the issues but offered bromides (no heading in the manual with "do the right thing"). Good for Halvoroson for interrupting and asking, "And why aren't we doing that?" Why aren't veterans brought in immediately when there's something confusing about their case that might lead to a denial. Ratajczak replied that it's "because we're not giving credit for doing it." Halvorson explained how she runs her office, "Because I have a lot of caseworkers in my office and I don't let them share cases, I want them starting it and finishing it because when there's questions, one person can answer the question because if you've got a team or five people working on something, you're going to get five different answers depending on who answers the call." Ratajczak wanted to offer a ton of examples that backed up Halvorson's question but none that answered her question. He ate the time, ran out the clock and avoided providing an answer.

"I don't have an answer for that," Michael Waldcoff said in a flat voice on the third panel. Though VA sends many people to Congress who make that comment, the Deupty Under Secretary for Benefits was replying to John Hall's question about how many veterans committed suicide while waiting for their claims to be settled? That's a basic question and as distrubing as Wadlcoff's claim that he didn't know was his obvious disinterest in the question. Hall rightly noted that this was "a question that VA should be able to answer" -- yes, they should.

Today Gregg Zoroya (USA Today) reports that there has been an increase ("nearly doubled") in the number of enlisted seeking treatment for dependency on or abuse of alcoholism. and he notes there were 142 recorded army suicides in 2008 and that there are already 82 confirmed so far this year. This as VA's backlog continues.

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