VA’s wrongful denial of sexual trauma cases shows that the agency still needs an overhaul

At his first public speech since being confirmed as Secretary of Veterans Affairs, Robert Wilkie pledged to veterans at the AMVETS annual convention in Orlando, FL, last week that he would create a more user-friendly experience for veterans at the VA, specifically stating that “VA exists to make life easier for veterans.”

As highlighted by a VA OIG report issued this week that focused on denied claims for military sexual trauma (MST), Wilkie certainly has his work cut out for him. Specifically, that report found that, due to claims processing errors that resulted from VA’s rush to eliminate its backlog of claims — a number often touted by VA critics as evidence of its failing practices —many MST claims were denied without proper application of applicable law and regulations.

{mosads}In order to successfully follow through on his goal of making the VA more user-friendly for veterans, Wilkie must implement a cultural shift away from VA’s current emphasis on easily-manipulated numbers and statistics to evaluate performance to one that focuses on the experience of each individual veteran.

When people talk about the VA, one of the most frequent topics of conversation is about the numbers.  

The VA is the second largest cabinet department in terms of size — it employees nearly 383,000 federal employees. It is the fifth largest in terms of budget, with a total outlay of nearly $200 billion, annually. There are currently just over 360,00 disability claims pending, although this is down significantly from the backlog of over one million claims several years ago.

Congress and the media also love statistics, particularly when it comes to evaluating the VA. Oversight hearings and the subsequent reporting on them often hinge on improvements or lack thereof regarding percentages and wait times in both the health- care and the benefits arenas.  

Of course, there are both benefits and drawbacks to the reliance on these types of statistics to evaluate performance.

On the one hand, numbers provide tangible ways to measure performance for a department that appears to constantly be struggling to keep up with its burgeoning workload. On the other hand, VA has been caught, on multiple occasions, manipulating those numbers to create the appearance of success, at the expense of veterans’ health and well-being.

Thus, when the OIG report came out this week noting that the VA improperly processed approximately half of denied claims for MST, which amounts to approximately 1,300 claims, at first glance, this may seem like a minor problem.

Particularly when compared to some of the VA’s other recent headlines, including reports of in-fighting amongst department leadership, a lawsuit pertaining to the influence of several men known as the “Mar-a-Lago Crowd,” and mismanagement of its caregiver program, the number of MST claims impacted by the report appears to be a drop in VA’s overflowing bucket of problems.

However, sometimes minor statistics can have major implications for the veterans that are impacted by them, something that VA has unfortunately, at times, lost sight of. This is why VA must work to improve, and not overlook, the processing of MST and other complex claims. Even one veteran who has their claim wrongly denied is too many.

Whether related to the military or not, sexual assault is a serious mental health issue for the victim. And, as has been highlighted by the #MeToo movement, it is a much bigger problem than many realized, particularly in situations that involve power differentials such as employment, politics and the military.

In addition to complicating a very serious issue for those individual veterans who are suffering from MST and filing related claims, from an organizational standpoint, VA has two major issues of its own related to this report.  

First, VA does not appear to have learned from its past mistakes. In 2002, VA relaxed the evidentiary standards for MST claims, but after noting inconsistent application of its own regulations, in 2011, VA began assigning MST-related claims to specific adjudicators and accordingly, in 2013, VA invited nearly 3,000 veterans whose MST claims were denied to resubmit them.  

Similarly, in response to this week’s OIG report, VA agreed to reevaluate all denied MST claims decided between Oct. 1, 2016, through June 30, 2018. Although VA should be given credit for working to fix its past mistakes, a more successful strategy would be to follow applicable laws and regulations the first time.

Processing claims correctly so veterans can receive the benefits they have earned, rather than forcing victims of significant trauma to relive that experience due to VA’s own ineptitude, is what ultimately makes things easier for veterans.

Moreover, for an agency that often struggles with backlogs and long wait times, consistently requiring those whose claims have been adjudicated incorrectly to resubmit them only furthers many of VA’s internal workload problems.  

Second, the subject scenarios in this week’s OIG report on MST highlight the crux of VA’s problems when it relies on numbers and performance metrics to measure success; such measures are often short-sighted and fail to ultimately correct the problem. Although rushing through its backlog of claims due to over-emphasis on the backlog numbers temporarily eliminates criticism related to that number, it does not actually improve the lives of veterans, particularly if their claims are wrongly denied as a result.  

The MST claims such as those highlighted in this OIG report highlight that, in the long run, this actually creates more work and more delays for veterans — the exact opposite of making their lives easier. If making life easier for veterans is Wilkie’s goal, ending the over-reliance on performance statistics is a good starting point.

Rory E. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.