July 24, 2014


The American Legion, on behalf of our National Commander Daniel Dellinger and the 2.4 million members across this nation, is here to reaffirm our commitment to building a strong VA to serve the needs of this nation’s veterans.  Our organization has been critical of VA both prior to, and throughout this crisis, and we will continue to scrutinize VA, not because we dislike or oppose the Department, but because we are fiercely devoted to ensuring veterans receive only the best from the cabinet level department designated to serve them. 

Nearly one hundred years ago, The American Legion was chartered by Congress to fight for veterans.  We led the charge for the GI Bills; both the original GI Bill that enabled the boom years of the 20th Century, and the Post 9-11 GI Bill that will pave the way for a greater America in the 21st Century and beyond.  We’ve fought for advanced funding for VA for long term budget planning and we’ve argued for greater construction budgets.  We even pointed out that VA’s budget requests in past years, as simple math illustrated, set a pace to finish VA’s ten year construction plan in sixty years.

What Are We Doing? – The Veterans’ Crisis Command Centers:

As the veterans’ healthcare crisis scandal spread nationwide this year, The American Legion quickly realized the true impact of the scheduling problems – veterans across America were suffering and dying due to delayed access to healthcare.  In response to this crisis The American Legion immediately organized Veterans Crisis Command Centers (VCCCs) in critically affected areas throughout the country, in conjunction with local American Legion Posts, and local resources, to address the needs of veterans.

To date, The American Legion has run VCCCs in five cities with two more scheduled this week, and half a dozen more to follow over the next three months.  Simultaneously, we conducted a System Worth Saving (SWS) Task Force meeting and veteran’s town hall in Indianapolis Indiana where we worked with nearly 100 local veterans, followed by a visit to the Roudebush VA Medical Center.  While the purpose of the VCCCs is to provide a broad variety of support to meet the complex needs of the veterans in these communities, mental health remains a critical component.  VCCCs have been able to put veterans and their families in touch with grief counselors when loved ones have been lost due to delays in care, as well as Vet Center counselors to deal with mental health problems such as PTSD and depression.

The American Legion has been able to reach about 2,300 veterans in Phoenix, Arizona; Fayetteville, North Carolina; El Paso, Texas; St. Louis, Missouri; and Ft. Collins, Colorado.  American Legion national staff worked in conjunction with personnel from the National Veterans Legal Service Program (NVLSP), VA personnel, and staff from both sides of the House Committee on Veterans’ Affairs (HVAC), and other local service providers, to provide help with claims, VA enrollment, basic health screening, and counseling.  By directly engaging with VBA staff, The American Legion has been able to help veterans receive over half a million dollars in back pay and previously delayed benefits.  Local American Legion Posts provide the backdrop for Town Hall meetings upon arrival in the new locations, providing veterans with an opportunity to communicate directly with our staff and VA officials in the area.   VA is then able to communicate back to the veterans regarding how they are addressing the concerns and rectify the mistakes that have been made.

These VCCCs work because of the ability to engage the entire community to meet the needs of veterans.  The American Legion has over 14,000 posts nationwide and there is one in almost every community in America.  By engaging these posts the American Legion is engaging the community to help VA meet the challenges.  We reach past the blame game and start finding the solutions to these challenges in partnership with the community, because this assistance will be critical as all stakeholders work to find solutions to the VA crisis.  You cannot find effective, long-lasting solutions without organically including all stakeholders from the beginning.  We are all in this together.

Waiting For Care – The VHA Crisis:

As this year has progressed, revelations from the Department of Veterans Affairs (VA) Office of the Inspector General (VAOIG) have made it clear that there have been serious lapses in leadership, which has resulted in VA’s struggle to provide timely and appropriate care.  Appointment concerns that veterans have noted for years – such as having problems getting appointments and care from VA – are now well documented. 

Veterans groups, as well as members of this committee have faced these same challenges in their districts.  In El Paso veterans told Congressman O’Rourke they couldn’t access mental health care despite VA telling him that veterans were waiting no longer than 7-14 days for appointments.  He decided to stop listening to the self reporting from VA and go directly to the veterans, contracting a survey of the veterans in his district.  What he found confirmed that the veterans in his district had a right to be frustrated.  While El Paso VA reported “85-100 percent of new patients to the system seeking mental health appointments saw a provider within 14 days” the survey results showed “on average it takes a veteran 71 days to see a mental health provider and more than 36 percent of veterans attempting to make an appointment were unable to see a mental health provider at all[1].”

These discrepancies, coupled with what has been revealed across the country, show that VA’s published statistics are to be viewed with some skepticism.  While The American Legion appreciates that VA is making an effort to reverse long standing trends of false reporting of statistics, change of this kind does not happen overnight. 

According to current figures[2] the average wait time for a new patient to be scheduled an appointment are as follows:

  • Primary care Average waiting time - 46.64 days,
  • Specialty Care Patient Average wait time - 49.39 days
  • Mental Health Average wait time – 35.20 days

VHA has made strides reducing new patient wait times, but these numbers continue to remain unacceptable.  Veterans should not have to wait on average over a month to schedule an appointment.  On July 11, 2014, staff from The American Legion participated in a conference call with VA staff to discuss the progress and current make-up of the veterans who have been languishing on wait lists. When asked if all of the veterans who were previously identified as being placed on a list other than the Electronic Wait List (EWL) have been moved to the EWL, Mike Davies, National Director, of System Redesign assured representatives from The American Legion that all veterans have now been moved to VA’s EWL.  This is progress and a first step towards transparency.  In order to even begin to understand the problem, there has to be a clear understanding of the scope involved.

In the July 1, 2014 edition of the VA Access Data report, total appointments scheduled were noted to be 6,016,910 of which 5,375,660 were scheduled within 30 days.  This gives an under 30 day appointment rate of 89.34 percent.  It is still unclear how 89 percent of appointments can be scheduled within 30 days, yet the average wait times for appointments all exceed 35 days, but these statistical questions will all need to be resolved as VHA moves closer to accurate data.  The American Legion remains committed to closely monitoring such trends until accurate numbers begin to resolve.

This recent crisis has demonstrated that VHA has not done a good job in outsourcing health care outside the VA health care system.  Over past years, VHA has implemented numerous pilot programs, such as Project HERO, Project Access Received Closer to Home (ARCH), and Patient-Centered Community Care (PC3).  The Project HERO dental contract ended September 30, 2012. The Project HERO medical contract ended March 31, 2013.  Project ARCH contracts are due to expire in September of this year and PC3 was rolled-out in January 2014. While some of these projects, such as Project ARCH, have received positive reviews from veterans, commitment from VHA has been tepid in some cases.  Despite veterans who reported high satisfaction with ARCH, The American Legion found VHA did a poor job with outreach, and in many cases, the program was underutilized because not enough patients knew about the project[3].

Outsourcing care is like any other tool in VHA’s toolbox.  The end goal is securing adequate and timely care for veterans.  In the aforementioned July 11th conference call with VHA, it became clear that less than 20 percent of the veterans waiting in line for appointments were waiting for at primary care appointment.  Therefore, in approximately 80 percent of the cases, VHA already had the authority to outsource the care if they couldn’t meet the veterans’ needs in a timely manner.  While legislative fixes will help, especially with veterans who haven’t even made basic primary care appointments, the tragedy of the wait time scandal is that VHA had and continues to have the authority to get care for most of these veterans.

Waiting in Line – The VBA Backlog Crisis:

When a panel of whistleblowers addressed this committee last week on July 14th 2014, their stories of cutting corners, manipulated numbers, and missing veterans’ data was eye popping to some, but not to The American Legion.  Much as Congressman O’Rourke found discrepancies in what was being reported as compared to what his constituents were telling him, The American Legion has long found that accuracy figures on VA claims do not match up, or in some cases even come close.  Our National Commander Daniel Dellinger noted in his address to the joint House and Senate Veterans Affairs Committees last September and again in May of this year that VA claims of accuracy figures of over 90 percent seemed high, when American Legion ROAR visits routinely found accuracy rates to be closer to 75 percent or below[4].  Testimony from the VAOIG on July 14th found error rates far closer to American Legion figures while examining VA’s recent initiative of “claims pending over two years”[5].  Looking at these claims, VAOIG found an accuracy rate of 68 percent, 32 percent of claims had errors.  During one regional office visit in 2014, we addressed this concern with a senior VA official; he reported it was unfair to assign blame to a current rater or VA Regional Office (VARO) for an inaccurate decision made years in the past; however, each rater is required to conduct a thorough review of each veteran’s claims, to include previous adjudications.  It has become increasingly clear that VA’s objective is to protect its employees – The American Legion’s objective is to protect the veteran. 

After strong pushback from VA regarding accuracy figures, Undersecretary for Benefits Allison Hickey recently announced VA is seeking outside, third party evaluation of their statistics.  As announced in the hearing, VBA is moving towards “ISO 9001” certification, based on standards developed by the International Organization for Standardization.  The American Legion appreciates that VBA has finally recognized the legitimate skepticism of stakeholders towards their numbers, but with that, the move towards ISO 9001 certification does raise legitimate questions about VA’s belief in their own system.

In a VSO briefing addressing the ISO 9001 certification, the stakeholders were told by VBA that “the gold standard” for manufacturing is 96 percent accuracy, and for the service industry, where VBA more accurately falls, the gold standard rate is approximately 95 percent without a massive influx of new employees to change the worker ratio.  In light of this information, achieving former VA Secretary Shinseki’s stated goal of 98 percent accuracy seems unrealistic and unattainable, and The American Legion would be skeptical of reported results that showed 98 percent accuracy had actually been achieved.  VA has admitted that the 14 day goal for treatment in VHA was arbitrary and unrealistic, and it is important to recognize that the achievement of some aspirational goals, numerically, are not as important as actually changing the way VA does business.

If VBA could produce “gold standard numbers”, independently verified for accuracy, veterans could have confidence that their claims were being processed with acceptable error rates.  The American Legion hopes VBA is attacking this problem, not with the aim of meeting an arbitrary number – like the 98 percent figure plucked out of the air five years ago – but with the ultimate goal of getting claims done right the first time and every time. 

When claims aren’t processed right the first time, the real waiting period in the claims backlog begins – appeals.  When VA inaccurately processes a veteran’s claim, that veteran is forced to appeal the claim.  Suddenly, a process that took a dozen months starts to drag into half a dozen years.  While VA has flown through the backlog of claims in recent months, issuing hasty decisions as they cut the backlog in half, they have also seen skyrocketing numbers in terms of appeals.  Recent figures show over 279,000 claims on appeal[6], while in 2009 when then Secretary Shinseki initiated the war on the backlog, there were only 173,000[7].  That’s an increase of almost two third the total appeals inventory volume.  Furthermore, as the more experienced and seasoned Decision Review Officers (DROs) are pulled off appeals work, as they have been in some offices to work initial claims, the wait for veterans with claims on appeal will only get exponentially longer.

In April 2013, VA pursued a one and two year old claims initiative.  The initiative was coupled with the provisional rating program detailed in VBA Fast Letter 20-13-05 (April 2013).  According to the instruction, VA regional offices were to issue provisional rating decision even if VA was still awaiting certain evidence.  Raters would adjudicate the claims based on the available evidence of record unless the requests for evidence is outstanding pertain to:

n  Service treatment records for original claims

n  VA medical records

n  Any evidence needed to establish veteran status and/or pertinent service dates

n  VA examinations, if examinations are pending at the time the case is reviewed or if one is required to adjudicate a claim

When VA instituted this program, The American Legion feared that this was a method used to reduce the appearance of the backlog as it appears on the Monday Morning Workload Report (MMWR), while not truly addressing the backlog.  In short, it was a method to remove the case from the backlog figure, while VA continued to develop the claim.  An unfinished claim would no longer count against their numbers because a provisional decision was then counted as a completed claim.

In November 2013, we received two rating decisions from the Seattle VARO.  A September 2013 decision stated, “VA examinations have not been conducted yet; once conducted and received we will review them and if service connection is warranted we will reconsider our decision.”  A separate decision prepared the following month stated, “Your service treatment records are unavailable for review.  Therefore, we do not have any evidence of an in-service event.  Your VA treatment records show you reported depression in August 2011 and stated that you have felt depressed since your Gulf War service.   Once your service treatment records are reviewed, this decision will be reconsidered.  You will be notified when a decision is made.”

These rating decisions are two examples of VBA’s inability to comply with the April 2013 Fast Letter.  VBA assured the public in an April 19, 2013, news release that “if a VA medical examination is needed to decide the claim, it will be ordered and expedited.  The rating decisions provided by the Seattle VARO amount to little more than a letter issued by VA indicating their continued work on the veteran’s claim with one exception – VA was presumably able to receive an end product for these decisions and will get another end product when the decisions are rendered with the appropriate level of evidence.

While VBA continually touts its improvement in its backlog, we must realize this does not fully include all veterans awaiting a decision.  MMWR figures only consider the following claims when calculating its backlog:

n  Initial entitlement for service connected disability

n  Initial entitlement for pension

n  Initial claims for surviving dependents

The MMWR fails to consider:

n  Award adjustments such as dependency claims

n  Program reviews

n  Other compensation reviews

n  Pension adjustments

n  Pension program reviews

n  Other pension reviews

n  Appeals

According to their own data[8], VA reported a backlog 291,740 claims; however, this does not include all of the claims in VA’s inventory

n  Award adjustments such as dependency claims (305,788)

n  Program reviews (53,416)

n  Other compensation reviews (129,628)

n  Pension adjustments (17,291)

n  Pension program reviews (24,944)

n  Other pension reviews (2,314)

n  Appeals (275,181)

 Combine VA’s acknowledged backlog exceeding 291,000 claims with the remaining claims VA has chosen not to place in its backlog statistic, 1,100,302 claims are awaiting a decision.  While VA has made improvements to its backlog, the reality is that the statistic generated by VA only comprises a quarter of the reality of the claims awaiting adjudication.

The Way Forward – Changing the Culture in VA:

When the problems of VA are viewed in total, several trends become clear.  The guilty are not held accountable.  Those who speak out against the system, be they employee or deeply concerned stakeholders, are vilified and shouted down.  There is an institutional predilection against change and against responsibility. 

To increase accountability, Congress can pass legislation to give the Secretary of VA the needed authority to fire and discipline senior leadership for failure to perform to standards.  It is mind boggling that VA would claim they lacked authority to discipline the leadership in multiple locations responsible for patient deaths due to preventable mistreatment.  That is why The American Legion supports legislation such as the VA Management Accountability Act and similar legislation that gives the VA Secretary the tools needed to clean out bad actors in the system[9].

Furthermore, this authority should extend to those leaders and staff who harass and torment those brave employees who raise questions and come forward.  Whistleblowers will only be free from fears to come forward when they see consequences implemented against leaders who have harassed those who have already spoken out.  Acting Secretary Sloan Gibson has rightly stated that there is no place in VA for those who would harass whistleblowers.  However, witness testimony from whistleblowers indicates this punitive behavior is still going on.  It’s time to make sure policy actions match that statement and see consequences for those who bully and intimidate employees to prevent them from speaking out to make VA a better place for veterans.

To increase transparency, VA can improve their figures by submitting to outside, third party oversight, as they claim they are ready to do.  They can treat veterans or employees who point out discrepancies in their figures not with retaliation, but with dialogue and understanding.  They can recognize that we all work better when we work in partnership.  While VA is quick to tout the benefits of VSOs in helping achieve goals through programs like the Fully Developed Claims (FDC) initiative, they close the door on VSOs when those organizations question error rates.  That’s not partnership, and that attitude cannot continue.

We get the best results for veterans when we all work together.

Last week, while appearing before the Senate Committee on Veterans Affairs (SVAC), Acting VA Secretary Sloan Gibson made a plea for an additional $17.6 billion over the next three years to address the critical access needs for America’s veterans.  The American Legion is taking this request seriously.  As Senator Jon Tester (MT) pointed out in that same hearing “[Montana] is short 22 physicians, you can’t make up all of those physicians just with efficiencies.”  There will be additional resources needed for VA, and Congress should not balk at the cost to care for our veterans, where such funding is needed. 

However, at the time of this testimony, VA has still been unable to provide more than rough estimates of where that funding would go and many questions still remain.  Billions are requested, and likely needed in construction funding, yet The American Legion remains skeptical of VA’s ability to manage funds in their construction accounts, as their current four major projects in Colorado, Nevada, Florida and Louisiana have all spiraled out of control.  There are absolutely areas where VA will need more physicians and professionals to meet their needs, as Senator Tester pointed out, however there are other areas where it is apparent that resources may not be being managed to their best potential, such as those pointed out by Jose Matthews, MD, former Chief of Psychiatric Medicine in the St. Louis VA Health Care System in his testimony before this committee[10].

Furthermore, Acting Secretary Gibson’s emergency supplemental request encompasses a multi-year funding request that should have been addressed through, and during the VA’s annual budget request to congress.  All of the resources now being requested by VA are exactly what The American Legion has been telling VA and congress for years, and should have been forecasted accordingly.  Emergency and supplemental requests are generally used for current fiscal year deficiencies.  The American Legion is having trouble understanding why out year funding requests aren’t being requested through the normal budget request process. And finally, this committee and the conference committee assigned to work on HR 3230 needs to be able to evaluate how much of this request would overlap with the scored scenario published by the Congressional Budget Office.  If VA already has the statutory authority to serve 80 percent of the veterans waiting for VA care, then HR 3230 would only need to address the remaining 20 percent.  If Mr. Gibson’s budget request addresses the other vast majority of the waitlisted veterans, and works to build VA infrastructure so that it is able to address the larger than expected influx of returning veterans waiting to use VA care, then the committee will need to consider a hybrid solution that considers the best of both proposals.

Acting Secretary Gibson also told SVAC that VA would have to earn back the trust of each and every veteran, and part of that trust means full disclosure to the stakeholders.  Gibson admitted he would not be shy about asking for the resources he needed, but promised there would not be a penny asked for that was not needed.  Veterans need to trust, but verify.  The American Legion looks forward to working with VA to determine where there is additional need to serve America’s veterans, then to fight fiercely for it against those who would deny VA the resources it needs. 

For additional information regarding this testimony, please contact Mr. Ian de Planque at The American Legion’s Legislative Division, (202) 861-2700 or ideplanque@legion.org.

[1] http://orourke.house.gov/sites/orourke.house.gov/files/VAFinal6-3-2014.pdf

[2] http://www.va.gov/HEALTH/docs/VAMC_Patient_Access_Data_20140717.pdf

[3] http://www.legion.org/sites/legion.org/files/legion/publications/sws-rural-healthcare-report-2012-web.pdf

[4] http://www.legion.org/sites/legion.org/files/legion/publications/Commanders-Testimony-2013-WEB.pdf

[5] http://www.va.gov/oig/pubs/VAOIG-13-03699-209.pdf

[6] VA Monday Morning Workload Report – July 7, 2014

[7] VA Monday Morning Workload Report – July 20, 2009

[8] Monday Morning Workload Report May 26, 2014

[9] Resolution No. 14: Department of Veterans Affairs Accountability, MAY 2014

[10] http://veterans.house.gov/witness-testimony/jose-mathews-md