VA DISABILITY EXAMS: Improved Performance Analysis and Training Oversight Needed for Contracted Exams

What GAO Found

The Veterans Benefits Administration (VBA) has limited information on whether contractors who conduct disability compensation medical exams are meeting the agency’s quality and timeliness targets. VBA contracted examiners have completed a growing number of exams in recent years (see figure). VBA uses completed exam reports to help determine if a veteran should receive disability benefits. VBA reported that the vast majority of contractors’ quality scores fell well below VBA’s target—92 percent of exam reports with no errors—for the first half of 2017. Since then, VBA has not completed all its quality reviews, but has hired more staff to do them. VBA officials acknowledged that VBA also does not have accurate information on contractor timeliness. VBA officials said the exam management system used until spring 2018 did not always retain the initial exam report completion date, which is used to calculate timeliness. In spring 2018, VBA implemented a new system designed to capture this information. GAO-19-13: Published: Oct 12, 2018. Publicly Released: Nov 8, 2018

VBA monitoring has addressed some problems with contractors, such as reassigning exams from contractors that did not have enough examiners to those that did. However, the issues GAO identified with VBA’s quality and timeliness information limit VBA’s ability to effectively oversee contractors. For example, VBA officials said they were unable to track the timeliness of exam reports sent back to contractors for corrections, which is needed to determine if VBA should reduce payment to a contractor. The new system implemented in spring 2018 tracks more detailed data on exam timeliness. However, VBA has not documented how it will ensure the data are accurate or how it will use the data to track the timeliness and billing of corrected exam reports. VBA also has no plans to use the new system to analyze performance data to identify trends or other program-wide issues. Without such plans, VBA may miss opportunities to improve contractor oversight and the program overall.

A third-party auditor verifies that contracted examiners have valid medical licenses, but VBA does not verify if examiners have completed training nor does it collect information to assess training effectiveness in preparing examiners. While VBA plans to improve monitoring of training, it has not documented plans for tracking or collecting information to assess training. These actions could help ensure that VBA contractors provide veterans with high-quality exams and help VBA determine if additional training is needed.

Why GAO Did This Study

In 2016, VBA awarded 12 contracts to five private firms for up to $6.8 billion lasting up to 5 years to conduct veterans’ disability medical exams. Both VBA contracted medical examiners and medical providers from the Veterans Health Administration perform these exams, with a growing number of exams being completed by contractors. Starting in 2017, VBA contracted examiners conducted about half of all exams. GAO was asked to review the performance and oversight of VBA’s disability medical exam contractors.
This report examines (1) what is known about the quality and timeliness of VBA contracted exams; (2) the extent to which VBA monitors contractors’ performance; and (3) how VBA ensures that its contractors provide qualified and well-trained examiners. GAO analyzed the most recent reliable data available on the quality and timeliness of exams (January 2017 to February 2018), reviewed VBA and selected contract documents and relevant federal laws and regulations, and interviewed agency officials, exam contractors, an audit firm that checks examiners’ licenses, and selected veterans service organizations.

What GAO Recommends

GAO recommends VBA (1) develop a plan for using its new data system to monitor contractors’ quality and timeliness performance, (2) analyze overall program performance, (3) verify that contracted examiners complete required training, and (4) collect information to assess the effectiveness of that training. The Department of Veterans Affairs agreed with GAO’s recommendations.
View Report (PDF)


Understanding Decisions from RAMP


Guest Post from Hill & Ponton

RAMP (Rapid Appeals Modernization Program) is the VA’s pilot program for the new appeals system created by the VA Appeals Improvement and Modernization Act of 2017. RAMP is an optional program, available to veterans with claims that are currently on appeal. If a veteran does not want to opt into the RAMP program, they do not have to submit anything to the VA; their appeals will continue to be processed in the current appeals system now referred to as the Legacy Appeals System.

Information on RAMP Rating Decisions

Now that the RAMP program has been in effect for several months, veterans who opted in are receiving rating decisions. It is important to understand the information included in these decisions, and also what your options are if you are not happy with the decision.
The appearance of rating decisions hasn’t changed much with the RAMP program. However, the information that must be included in the rating decision has changed slightly. RAMP rating decisions must list all favorable findings that the VA identified when reviewing the case, including listing what evidence was considered as favorable. The VA must also identify the evidencethey considered to be unfavorable. In the narrative part of the rating decision, the VA must explain how the favorable and unfavorable evidence was weighed in coming to their ultimate finding. In addition to listing the evidence, the VA also has to include a list of all regulations and laws that were applied in making their decision.

Forms Included in RAMP Rating Decisions

In addition to the explanation and the list of evidence and regulations,  RAMP decisions will have two forms attached. These two forms are the RAMP Review Rights form and the RAMP Selection form.
The RAMP Review Rights form gives information about how to appeal the decision. The different ways to appeal a decision from RAMP are based on the different lanes that make up the RAMP program.  The appeal options include:

  • Supplemental Claim: If you are unhappy with the rating decision and would like to submit new evidence, this is the appeal option to select. Once the new evidence (must be new and relevant) is submitted, a different rater will review the case.
  • Higher Level Review: This appeal option can only be selected if the decision being appealed was issued out of the supplemental claim lane,  and you do not have any additional evidence to submit. (Note: if opting into RAMP, the only requirement is that no additional evidence can be submitted.) A higher-level VA employee will review the decision that is being appealed based on the evidence of record.
  • Board of Veterans’ Appeals (BVA): If you are unhappy with the rating decision and want to take your appeal straight to the BVA, use this appeal option (Note: the BVA will not begin deciding RAMP appeals until October 2018). If you choose to appeal to the Board of Veterans’ Appeals, you will have to select one of three options. These options are:
  • Direct Docket: Select this if you have no additional evidence to submit, and you do not want a hearing. The BVA will issue their decision based on the evidence of record.
  • Evidence Only Docket: Select this if you would like to submit additional evidence, but do not want a hearing. After submitting your appeal, you will have 90 days to submit additional evidence.
  • Hearing Docket: Select this if you would like to have a hearing with a Veterans Law Judge. You will also be able to submit additional evidence up to 90 days after submitting your appeal.

The second form that will be attached to a RAMP rating decision is the RAMP Selection form. After deciding which appeal option is best for you, fill out the RAMP Selection form. This form requires you to specify which issues you are appealing, and which appeal option you are choosing.

VA’s Rapid Appeals Modernization Program (RAMP)


What is RAMP?

RAMP allows Veterans to seek faster resolution of their disagreement with VA’s decision on a disability compensation claim. Opting into RAMP means you can remove your appeal from the old, limited appeals process and enter the new, more efficient review process. In RAMP, you can choose between two new ways to have your disagreement reviewed: as a supplemental claim or via a higher-level review. VA will then provide you with a decision on your disagreement in an average of 125 days.
[/one-half-first][one-half]More on RAMP
Veterans Appeals Improvement and Modernization Act


VA Appeals Modernization

RAMP is part of VA’s larger Appeals Modernization Program. On August 23, 2017, the President signed the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act) into law, creating a new process that allows VA to improve the delivery of benefits and services to Veterans and their families.The Appeals Modernization Act establishes a new review process for VA claims that is timely, transparent and fair. Although the new Appeals Modernization Act process does not go into effect until February 2019, VA is giving eligible Veterans the opportunity to participate in two of the new review lanes early through RAMP.

Opting into RAMP

Now, any Veteran with an eligible disability compensation appeal may choose to opt into RAMP. To find out if your disability compensation appeal is in an eligible stage you can go to and use the Appeals Status Tool. There are three ways you can opt into RAMP:

 Are you eligible for RAMP?

 Veterans who have a disability compensation appeal pending in one of the following legacy appeal stages are able to opt into RAMP:

  •  Notice of Disagreement (NOD) 
  •  Form 9, Appeal to Board of Veterans’ Appeals
  • Certified to the Board (sent to the Board but not yet formally placed on its docket)
  • Remand from the Board to VBA

What If You Disagree with a RAMP Decision?

If you disagree with a decision you received from RAMP, you can choose to have your claim reviewed again either as a higher-level review or as a supplemental claim. Choosing one review option initially does not prevent you from choosing another review option after you’ve received an initial decision in RAMP. For example, if you initially choose the Higher-Level Review Lane and disagree with VA’s decision from that review, you can then choose the Supplemental Claim Lane to add new and relevant evidence to support your claim.Alternatively, you may choose to file an NOD directly to the Board.

More on RAMP
Veterans Appeals Improvement and Modernization Act


VA: Actions Needed to Address Employee Misconduct Process and Ensure Accountability

Employee misconduct at VA’s medical facilities can have serious consequences for veterans. We looked at how VA deals with employee misconduct and found several opportunities for improvement. For example:

VA doesn’t always maintain required files and documents for adjudication, suggesting that employees may not have received due process.

VA officials found guilty of misconduct sometimes received a lesser punishment than recommended or no punishment.

Whistleblowers were 10 times more likely than their peers to receive disciplinary action within a year of reporting misconduct.

 Why GAO Did This Study

VA provides services and benefits to veterans through hospitals and other facilities nationwide. Misconduct by VA employees can have serious consequences for some veterans, including poor quality of care. GAO was asked to review employee misconduct across VA. This report reviews the extent to which VA (1) collects reliable information associated with employee misconduct and disciplinary actions, (2) adheres to documentation-retention procedures when adjudicating cases of employee misconduct, (3) ensures allegations of misconduct involving senior officials are reviewed according to VA investigative standards and these officials are held accountable, and (4) has procedures to investigate whistle-blower allegations of misconduct; and the extent to which (5) data and whistle-blower testimony indicate whether retaliation for disclosing misconduct occurs at VA.
GAO analyzed 12 information systems across VA to assess the reliability of misconduct data, examined a stratified random sample of 544 misconduct cases from 2009 through 2015, analyzed data and reviewed cases pertaining to senior officials involved in misconduct, reviewed procedures pertaining to whistle-blower investigations, and examined a nongeneralizable sample of whistle-blower disclosures from 2010 to 2014.

What GAO Found

The Department of Veterans Affairs (VA) collects data related to employee misconduct and disciplinary actions, but fragmentation and data-reliability issues impede department-wide analysis of those data. VA maintains six information systems that include partial data related to employee misconduct. For example, VA’s Personnel and Accounting Integrated Data system collects information on disciplinary actions that affect employee leave and pay, but the system does not collect information on other types of disciplinary actions. The system also does not collect information such as the offense or date of occurrence. GAO also identified six other information systems that various VA administrations and program offices use to collect specific information regarding their respective employees’ misconduct and disciplinary actions. GAO’s analysis of all 12 information systems found data-reliability issues—such as missing data, lack of identifiers, and lack of standardization among fields. Without collecting reliable misconduct and disciplinary action data on all cases department-wide, VA’s reporting and decision making on misconduct are impaired.
VA inconsistently adhered to its guidance for documentation retention when adjudicating misconduct allegations, based on GAO’s review of a generalizable sample of 544 out of 23,622 misconduct case files associated with employee disciplinary actions affecting employee pay. GAO estimates that VA would not be able to account for approximately 1,800 case files. Further, GAO estimates that approximately 3,600 of the files did not contain required documentation that employees were adequately informed of their rights during adjudication procedures—such as their entitlement to be represented by an attorney. The absence of files and associated documentation suggests that individuals may not have always received fair and reasonable due process as allegations of misconduct were adjudicated. Nevertheless, VA’s Office of Human Resource Management does not regularly assess the extent to which files and documentation are retained consistently with applicable requirements.
VA did not consistently ensure that allegations of misconduct involving senior officials were reviewed according to investigative standards and these officials were held accountable. For example, based on a review of 23 cases of alleged misconduct by senior officials that the VA Office of Inspector General (OIG) referred to VA facility and program offices for additional investigation, GAO found VA frequently did not include sufficient documentation for its findings, or provide a timely response to the OIG. In addition, VA was unable to produce anydocumentation used to close 2 cases. Further, OIG policy does not require the OIG to verify the completeness of investigations, which would help ensure that facility and program offices had met the requirements for investigating allegations of misconduct. Regarding senior officials, VA did not always take necessary measures to ensure they were held accountable for substantiated misconduct. As the figure below shows, GAO found that the disciplinary action proposed was not taken for 5 of 17 senior officials with substantiated misconduct.
Action Proposed in Department of Veterans Affairs (VA) Office of Accountability Review’s Legacy Referral Tracking List Compared with Final Action Taken

Action Proposed in Department of Veterans Affairs (VA) Office of Accountability Review’s Legacy Referral Tracking List Compared with Final Action Taken

*Adverse action.
As a result of June 2017 legislation, a new office within VA—the Office of Accountability and Whistleblower Protection—will be responsible for receiving and investigating allegations of misconduct involving senior officials.
VA has procedures for investigating whistle-blower complaints, but the procedures allow the program office or facility where a whistle-blower has reported misconduct to conduct the investigation. According to the OIG, it has the option of investigating allegations of misconduct, or exercising a “right of first refusal” whereby it refers allegations of misconduct to the VA facility or program office where the allegation originated. VA does not have oversight measures to ensure that all referred allegations of misconduct are investigated by an entity outside the control of the facility or program office involved in the misconduct, to ensure independence. As a result, GAO found instances where managers investigated themselves for misconduct, presenting a conflict of interest.Data and whistle-blower testimony indicate that retaliation may have occurred at VA. As the table below shows, individuals who filed a disclosure of misconduct with the Office of Special Counsel (OSC) received disciplinary action at a much higher rate than the peer average for the rest of VA in fiscal years 2010–2014.
Data and whistle-blower testimony indicate that retaliation may have occurred at VA. As the table below shows, individuals who filed a disclosure of misconduct with the Office of Special Counsel (OSC) received disciplinary action at a much higher rate than the peer average for the rest of VA in fiscal years 2010–2014.

Comparison of Adverse Disciplinary Action Taken for Nonanonymous Department of Veterans Affairs (VA) Employees Who Reported Wrongdoing and Those Who Did Not, 2010–2014
Employee category Percentage for whom adverse actions were taken
Prior to disclosure Year of disclosure Year after disclosure
Individuals who filed a disclosure 2 10 8
Rest of VA 1 1 1

Additionally, GAO’s interviews with six VA whistle-blowers who claim to have been retaliated against provided anecdotal evidence that retaliation may be occurring. These whistle-blowers alleged that managers in their chain of command took several untraceable actions to retaliate against the whistle- blowers, such as being denied access to computer equipment necessary to complete assignments.

What GAO Recommends

GAO makes numerous recommendations to Veterans Affairs to help enhance its ability to address misconduct issues.
GAO recommends, among other things, that the Secretary of Veterans Affairs

  • develop and implement guidance to collect complete and reliable misconduct and disciplinary-action data department-wide; such guidance should include direction and procedures on addressing blank fields, lack of personnel identifiers, and standardization among fields;
  • direct applicable facility and program offices to adhere to VA’s policies regarding misconduct adjudication documentation;
  • direct the Office of Human Resource Management to routinely assess the extent to which misconduct-related files and documents are retained consistently with applicable requirements;
  • direct the Office of Accountability and Whistleblower Protection (OAWP) to review responses submitted by facility or program offices to ensure evidence produced in senior-official case referrals demonstrates that the required elements have been addressed;
  • direct OAWP to issue written guidance on how OAWP will verify whether appropriate disciplinary action has been implemented; and
  • develop procedures to ensure (1) whistle-blower investigations are reviewed by an official independent of and at least one level above the individual involved in the allegation, and (2) VA employees who report wrongdoing are treated fairly and protected against retaliation.

GAO also recommends, among other things, that the VA OIG

  •  revise its policy and require verification of evidence produced in senior-official case referrals.

VA concurred with nine recommendations and partially concurred with five. In response, GAO modified three of the recommendations. The VA OIG concurred with one recommendation and partially concurred with the other. GAO continues to believe that both are warranted. GAO modified three of the recommendations. The VA OIG concurred with one recommendation and partially concurred with the other. GAO continues to believe that both are warranted.

Employee misconduct at VA’s medical facilities can have serious consequences for veterans. We looked at how VA deals with employee misconduct and found several opportunities for improvement. For example:VA doesn’t always maintain required files and documents for adjudication, suggesting that employees may not have received due process.VA officials found guilty of misconduct sometimes received a lesser punishment than recommended or no punishment.Whistleblowers were 10 times more likely than their peers to receive disciplinary action within a year of reporting misconduct.

What does ‘privatization’ of Veterans Affairs really mean?

Giving veterans choices about their care is something we can all get behind. Dismantling VA in lieu of private care will hurt todays veterans and tomorrows veterans.
Lots of veterans have good solid reasons for hating the VA for medical care, and there are tons more that love their care.
For years they have talked about the great debt we are owed and the state of the art care we receive. It’s time for them to pay that debt and provide us the care they say we deserve.
Farming us out to private care may not be the best thing for veterans in the long term, though short term it may seem like a great solution.

“Our view is that Congress and the administration must fix what is wrong with the VA health care system — improve hiring authorities, expand and fix its aging infrastructure, improve access, customer service — and not just simply turn to the private sector when VA facilities are having problems,” said Carlos Fuentes, director of the National Legislative Service at Veterans of Foreign Wars.

“Community care is part of the solution, but not the only answer.”

Problems Ahead at VA – Did Shulkin get fired or resign? This is why it matters – POLITICO


Fasten your seatbelts, it’s going to be a bumpy ride …

Did Shulkin get fired or resign? This is why it matters.

The debate centers on vague language in the Federal Vacancies Reform Act of 1998, which gives the president broad authority to temporarily fill a vacancy at a federal agency with an acting official if the current office holder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

More trouble for an already troubled VA. Those who want to privatize will continue to break the system and veterans will be hurt. I don’t want the VA to be privatized for profit care. I want them to put the money, resources and people into place to fix what we earned. They have told us for years that we deserve the best care, state of the art care, not farm us out to for profit facilities.
Folks in the CHOICE program have trouble getting VA to pay the bills, I don’t see that getting better.
Then we will have to find doctor’s and specialist that accept VA payments. This may prove challenging. 

Significant Judicial Precedent and Its Effect on the Board

Throughout FY 2016, the CAVC and the Federal Circuit issued many significant decisions that impacted the way VA adjudicates appeals, including the following:

Correia v. McDonald, 28 Vet. App. 158 (2016): This case provides a precedent interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint.” Specifically, the CAVC held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The CAVC also stated that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.

The CAVC provided two qualifications to this requirement. First, this holding requires the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted. The CAVC specifically found that it was not competent to determine whether upper extremities are or can be weight-bearing, though it did find that knees were “undoubtedly weight-bearing.” In a later footnote, the CAVC left it to medical professionals to determine whether the listed range of motion testing can be performed on the joints at issue in a particular case. Second, range of motion testing of the opposite joint does not apply for joints that do not have an opposite or whose opposite is also damaged. While the CAVC did not define “damaged” for these purposes, it noted that both of the appellant’s knees were “damaged.” The record showed that the appellant had knee diagnoses that included both traumatic arthritis and degenerative joint disease.
This case is significant because the holding establishes additional requirements that must be met prior to finding that a VA examination is adequate. Any of the above areas of testing can be omitted if the medical professional conducting the examination states that it is not possible to perform the testing, and clearly explains why. Otherwise, VA musculoskeletal examinations that do not contain the necessary active motion, passive motion, weight-bearing information, and nonweight-bearing information are likely to be inadequate under Correia and may require remand for a new examination.

Johnson v. McDonald, 27 Vet. App. 497 (2016): In this case, the Board denied a rating in excess of 10 percent for a skin condition under 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board found that the appellant did not meet the criteria for a higher rating, in part, because treatment for his skin disorder had not included systemic therapy for a duration of 6 weeks or more during any 12 month period. While the appellant had used topical corticosteroids constantly for 12 months, the Board did not find this treatment to be systemic therapy.

The question on appeal to the CAVC, was whether the criteria for a 60 percent rating under Diagnostic Code 7806, which requires “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs,” is inclusive of topical corticosteroids. The Secretary argued that topical corticosteroid therapy is appropriately addressed under the criteria for a noncompensable rating in Diagnostic Code 7806, which applies when “no more than topical therapy [is] required.”
The CAVC determined that the language of Diagnostic Code 7806 is unambiguous: “the diagnostic code explicitly mentions corticosteroids as an example of ‘systemic therapy’ and does not further distinguish between different types of corticosteroid application.” The language in the criteria for a 60 percent rating provides that corticosteroids constitute systemic therapy without any limitation as to application, and the Board improperly added criteria not included in the rating schedule when it required systemic therapy to be more than topical. The CAVC found that the “topical therapy” identified in the noncompensable rating criteria necessarily referred to “non-corticosteroid” topical treatment. As such, the CAVC reversed the Board’s holding, and found that the appellant’s therapy was systemic.
This case is significant because any appellant using topical corticosteroids constantly or near-constantly to treat a service-connected skin disorder may now be entitled to the substantially higher 60 percent rating. Notably, this decision has resulted in a proposed regulation change that, inter alia, clarifies that systemic therapy is treatment administered through any route other than the skin (such as orally, intranasally, or via injection) and topical therapy is treatment administered through the skin. Further, the CAVC has granted a motion to stay the precedential effect of this case (except as to claimants that qualify for expedited proceedings) pending the Secretary’s appeal to the Federal Circuit.

Gagne v. McDonald, 27 Vet. App. 397 (2015): In this matter, the Board determined that VA had satisfied the duty to assist despite declining to submit requests to verify the appellant’s alleged PTSD stressors, where the appellant failed to provide a 60-day time window for the occurrence of the stressor so that VA could submit the request to the United States Army Joint Services Records Research Center (JSRRC). The appellant argued that, in light of the information in his service record and the nature of the incident to be researched (the death of a service member between August 1967 and August 1968), he presented sufficient information for Veterans Affairs to submit a verification request to the JSRRC. He also argued that despite his inability to narrow the timeframe of the alleged stressor to a specific 60 day window, it was reasonable that VA should submit multiple requests sufficient to cover the entire time period identified.

The CAVC ruled that the Board should have ordered additional development to ensure that the duty to assist was satisfied, and that the appellant had provided sufficient information to locate records. The statutory duty to assist “requires that VA ‘continue’ to try to obtain records in the possession of a government agency until such a search becomes futile.”
38 U.S.C. § 5103A(c)(2). Under 38 C.F.R. § 3.159(c)(2) “the Secretary must make as many research record requests as are necessary and that a search for records is ‘futile’ only when it becomes clear the record does not exist or is not in the possession of the custodian.” As such, VA was at least obligated to submit multiple requests to the JSRRC covering the relevant time window in 60-day increments, unless such searches are “futile” or “‘fishing expeditions’ over an indefinite period of time.”
This case is significant because VA’s duty to assist is not bound by the JSRRC’s 60-day requirement, and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. Based on the facts of this case, it is not unreasonable to require VA to submit multiple 60-day inquiries to the JSRRC sufficient to address the entire 13-month period of time identified by an appellant. As a result of this case, VBA now handles searches of periods greater than 60 days by submitting sequential requests until the entire relevant period is covered. These sequential requests require additional time for development.

Yancy v. McDonald, 27 Vet. App. 484 (2016): The CAVC vacated and remanded an August 2014 Board decision that, in pertinent part, denied entitlement to an increased rating in excess of 30 percent for bilateral pes planus, and denied entitlement to separate initial compensable ratings under two other foot DCs. In doing so, the CAVC addressed interplay of the first two elements set forth in Thun v. Peake, 22 Vet. App. 111 ( 2008); and, the application of the combined effects analysis set forth in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

The CAVC explained the effect of Johnson and its application to the analysis set forth in Thun. The CAVC found that Johnson does not change the longstanding principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the appellant or reasonably raised by the record. The CAVC pointed to the language in Johnson: “referral for extra-schedular evaluation may be based on the collective impact of [a] veteran’s disabilities.” Johnson, 762 F.3d at 1365 (emphasis added). Therefore, the CAVC held that the Board is required to address whether referral for extraschedular consideration is warranted for an appellant’s disabilities on a collective basis only when that issue is argued by the appellant or reasonably raised by the record through evidence of the collective impact of the appellant’s service-connected disabilities. See, e.g., Thun, 22 Vet. App. at 115; Robinson v.

►Peake, 21 Vet. App. 545, 552 (2008). The CAVC further determined that nothing in Johnson changes the Board’s obligation to conduct the Thun three-part analysis.

This case is significant because the CAVC determined that Johnson does not alter the Board’s jurisdiction over individual schedular or extraschedular ratings. Although the Board must consider any combined effects resulting from all of an appellant’s service-connected disabilities insofar as they impact the disability picture of those disabilities in appellate status, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities that is not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.

Robinson v. McDonald, 28 Vet. App. 178 (2016): By statute, review in the CAVC “shall be on the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b). As the custodian of the records of appellants’ claims, the Secretary has been charged with the duty of assembling the record before the agency (RBA) and serving a copy on the appellant. In this particular case, as the appellant’s original paper claims file had been scanned into an electronic database prior to the Board’s decision, the Secretary assembled an RBA from the appellant’s electronic file. On appeal, the appellant contended that some pages of the pre-scan record were missing from the RBA, and demanded the opportunity to review the paper documents.

During the appeal, the Secretary explained that while some of the original paper source materials may still exist, those records do not constitute the claims file and are now considered duplicates or non-records. It was noted that the scanning of the paper documents for conversion into the electronic claims folder was completed by a third-party vendor utilizing quality control processes such that, on average, the likelihood of a paper document being accurately reproduced meets or exceeds 99 percent. Further, as a result of the quality control processes utilized by contract scanning vendors, the paper documents pertaining to the appellant were separated, digitized, sorted separately, and slated for destruction pursuant to VA’s internal procedures.
The CAVC found that VA had to provide access to the original paper records that were part of the record of proceedings before the agency. Under the CAVC’s Rule 10 (governing the RBA), the Secretary is required to provide an appellant inspection access to the “original material” before Veterans Affairs; the CAVC held that the plain meaning of that term encompassed the original paper records that had not been destroyed. The CAVC acknowledged the Federal Records Act (FRA) (44 U.S.C. Ch. 33), which includes a provision that certain digital records have the same effect as the original paper, but ultimately found thatVA had noy shown how this provision was triggered by its digitization process, without reaching any conclusions as to whether VA practices comported with the FRA. This case is significant because, with respect to claims that were processed with a paper claims file, it may require VA to maintain the paper file after all of the documents contained in the file have been uploaded into the electronic database VA uses for processing claims.

Additional FTCA/1151 info

This issue came up here a few times over the years, and also some months ago—but it bears repeating.
In Most of the 1151 and/or FTCA questions we see here- it is obvious that the veteran’s health care same solely from the VA.
In a widow’s issue, months ago – it took quite some time for us to realize that the veteran’s surgery, which seemed to contribute to his death, was acvtually done at a non VA facility.That is not a valid basis for 1151 or FTCA charges against the VA.
These types of claims can only be filed in regards to actions of actual VA employees.
The BVA explains this in the following decision:
“As an initial matter, compensation pursuant to 38 U.S.C.A. § 1151 is only warranted for treatment under the laws administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title. 38 U.S.C.A. § 1151(a)(1) (West 2002). A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. 38 C.F.R. § 3.361(e)(1) (2013). A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e)(2).
Activities that are not hospital care, medical or surgical treatment or examination by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. 38 C.F.R. § 3.361(f) (2013). ”

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VA DISABILITY BENEFITS: Opportunities Exist to Better Ensure Successful Appeals Reform GAO-18-349T: Published: Jan 30, 2018

What GAO Found

The Department of Veterans Affairs’ (VA) plan for implementing a new disability appeals process while attending to appeals in the current process addresses most, but not all, elements required by the Veterans Appeals Improvement and Modernization Act of 2017 (Act). VA’s appeals plan addresses 17 of 22 required elements, partially addresses 4, and does not address 1. For example, not addressed is the required element to include the resources needed by the Veterans Benefits Administration (VBA) and the Board of Veterans’ Appeals (Board) to implement the new appeals process and address legacy appeals under the current process. VA needs this information to certify, as specified under the Act, that it has sufficient resources to implement appeals reform and make timely appeals decisions under the new and legacy processes.
VA’s appeals plan reflects certain sound planning practices, but it could benefit from including important details in several key planning areas:
Performance measurement: VA’s plan reflects steps taken to track performance, but could articulate a more complete and balanced set of goals and measures for monitoring and assessing performance on a range of dimensions of success. Specifically, the plan reports that VA is developing a process to track timeliness of the new and legacy processes. However, contrary to sound planning practices, the plan does not include timeliness goals for all five appeals options available to veterans, does not include goals or measures for additional aspects of performance (such as accuracy or cost), and does not explain how VA will monitor or assess the new process compared to the legacy process. Unless VA clearly articulates a complete and balanced set of goals and measures, it could inadvertently incentivize staff to focus on certain aspects of appeals performance over others or fail to improve overall service to veterans.
Project management: VA’s plan includes a master schedule for implementing the new appeals plan; however, this schedule falls short of sound practices because it does not include key planned activities—such as its pilot test of two of the five appeals options. In addition, the schedule does not reflect other sound practices for guiding implementation and establishing accountability—such as articulating interim goals and needed resources for, and interdependencies among, activities. Unless VA augments its master schedule to include all key activities and reflect sound practices, VA may be unable to provide reasonable assurance that it has the essential program management information needed for this complex and important effort.
Risk assessment: VA has taken steps to assess and mitigate some risks related to appeals reform by, for example, pilot testing two of the five appeals options through its Rapid Appeals Modernization Program (RAMP). However, as designed, RAMP does not include key features of a well-developed and documented pilot test. For example, VA has not articulated how it will assess RAMP before proceeding with full implementation. In addition, RAMP is not pilot testing three options and, as a result, VA will not have data on the extent to which veterans will appeal directly to the Board when given the option. Unless VA identifies and mitigates key risks associated with implementing a new process, VA is taking a chance that untested aspects will not perform as desired.

Why GAO Did This Study

VA’s disability compensation program pays cash benefits to veterans with disabilities connected to their military service. In recent years, the number of appeals of VA’s benefit decisions has been rising. For decisions made on appeal in fiscal year 2017, veterans waited an average of 3 years for resolution by either VBA or the Board, and 7 years for resolution by the Board. The Veterans Appeals Improvement and Modernization Act of 2017 makes changes to VA’s current (legacy) appeals process, giving veterans new options to have their claims further reviewed by VBA or appeal directly to the Board. The Act requires VA to submit to Congress and GAO a plan for implementing a new appeals process, and includes a provision for GAO to assess VA’s plan.
This testimony focuses on the extent to which VA’s plan: (1) addresses the required elements in the Act, and (2) reflects sound planning practices identified in prior GAO work. GAO’s work entailed reviewing and assessing VA’s appeals plan and related documents against sound planning practices, and soliciting VA’s views on GAO’s assessments.

What GAO Recommends

In its forthcoming report, GAO is considering recommending that VA: fully address all legally required elements in its appeals plan, articulate how it will monitor and assess the new appeals process as compared to the legacy process, augment its master schedule for implementation, and more fully address risk.

Full Report

Accessible Version

Top 10 VA Disability Claims Posts for 2017


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Administrative practice and procedure Alcohol abuse Alcoholism Case law Claims Day care Dental health Department of Veterans Affairs Disability Disability benefits Drug abuse Government contracts Government procurement Grant programs-health Grant programs-veterans Health care Health facilities Health professions Health records Homeless IU Medical research Mental health programs Military Military personnel Nursing homes Posttraumatic stress disorder ptsd Reporting and recordkeeping requirements SAS sleep apnea TDIU Tinnitus Travel and transportation expenses Uncategorized Unemployability United States Department of Veterans Affairs va claims veteran Veterans veterans affairs Veterans Affairs disability Veterans benefits for post-traumatic stress disorder in the United States Veterans Health Administration Vietnam

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eBenefits Development Letter Sent

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” I encouraged you to keep the VA compensation and pension exam in perspective. What is that Perspective? Honestly, it comes down to recognizing that the purpose of the C&P Exam is NOT to convince the doctor that your injury is service-connected, but to let him or her conduct their exam and draw their conclusion.

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