Notwithstanding the horrendous writeup on the VBMS, the Office of the Inspector General is correct in their assessment that this gooney bird is not going to get airborne in 2015. Even if you threw another 750 million dollars at it, the Veterans Benefits Management System could not perform as Brigadier General Allison Hickey promised. It’s very simple and requires little or no explanation but for those who demand an accounting of why not, it boils down to one metric-it’s not a hands-free system. You cannot force an electronic program to be dishonest.
Imagine computerizing an automobile assembly line right down to the insertion of the nuts and bolts, engine, steering and AM/FM radio with absolutely no human intervention. Tires? Check. Bucket seats? Roger that. All systems go and then one last check-the human check. VBMS is similarly presented as a completely computerized process. The VA examiner is only there as a Quality Control verifier. Or is s/he? Increasingly, it is patently obvious that VA cannot allow this to be hands-free because it yields too many wins.
An old-fashioned claim, via the analogue paper method, was 85% predictable for the last eighty or ninety years . The denial door slamming shut was guaranteed because that was the game. With the advent of Shinseki’s paperless edict in 2010, The AFGE union pukes began to quail in their shoes. A truly computerized system of approval/denial would, by its very high speed and ability to ferret out key words, eliminate hundreds-if not thousands- of their jobs across the fruited RO plain. Equally, the SES types up at 810 Yellow Brick Lane Northwest, were quaking in their shoes because the whole sacred ratings process would be exposed for what it really is- a sham.
Only one thing stood between them and forced retirement. One person is essentially the fulcrum where win or lose is decided. The VA examiner is the one with plenipotentiary powers to deny an otherwise valid claim. Or, in the alternate, they are the one person who can throw sand in the gears by their inattention, inability to deduce basic logic and purposefully developing a claim for denial. Et voilà- VBMS. Now nobody is to blame. It’s all decided by an electronic program that can’t cheat. Right?
I have often pointed out that denial statistics support a theory of a goldbrick Veterans population who are mimicking welfare fraud. Specifically, 85% of claims are denied- both before and after the advent of VBMS. In addition, to meet the deadline, the percentage is actually going up and the resultant overflow is merely accruing on the BVA’s books. BVA’s numbers of reversals/vacate and remands and return to VARO sender are also climbing exponentially. Whereas before we saw a steady 22% overturned on appeal, the number is growing dramatically. I’d like to believe our Veterans Law Judges are of a higher calibre but I know better. The RO denials are becoming more error-prone. Equally, the number of appeals to the CAVC are also climbing dramatically and the true measure of perfidy is the 78% vacate or reversal rate.
CAVC statistics haven’t changed much over the years and their reversal numbers versus affirmation are a clear indicator of the slipshod, brutal justice handed out below. The repetitive mistakes of law that continue to plague Veterans Law Judges’ jurisprudence simply confirm VLJs are operating from their own M21 denial manual. True justice, blind and impartial, would dictate a far different outcome were this a truly balanced, nonadversarial judicial platform. For 85% of us to be denied would be akin to 85% of GEICO or Allstate auto claims being fraudulent. As we know, most citizens are basically honest-Veterans perhaps even more so. When they file a claim for a fender bender, there may be some inflation of damage but the essential minutiae of the accident is true. Claims adjusters know this and build it into the formula. A grossly suspect claim has certain hallmarks that make it stand out. In the VA system, 85% of your claims fail to pass the smell test. Can it be we are that venal and dishonest? Of course not. What is afoot?
With GEICO and Allstate, the claim is basically believed-absent any glaring errors. With VA claims, everything is suspect and each fact has to be crosschecked. VBMS was designed to eliminate all this hands -on nonsense and allow raters to load up the evidence in the magic 8 ball, shake and bake it and walk around to the ‘finish’ tray to extract the answer. If that truly happened, the win rate would climb to about 50% the first time out. Of the 40% who were denied, further development to ascertain incorrect or incomplete information would probably exonerate another 25% without so much as an appeal. Since this doesn’t happen, we know their truly computerized model is not truly computerized. Somewhere there is an override switch that creates a fault which induces the denial algorithm.
A claim that is purely analytical and which removes any human error is the object. Thus, if the parameters of the program are well-tested for accuracy, the have/have not measuring devices are all well-tuned, and the presumptive deductive logic circuits are all operational, there can be no appreciable error. The exception is the standard Garbage in/Grabage out metric. We’d like to believe it’s automated to the point of a Rube Goldberg machine that only requires oiling to keep it running smoothly. Human intervention is supposed to be a thing of the past with VBMS. But what if the metrics that determine correct or incorrect have been tampered with and a decision which reasonable minds can agree is bogus is the norm rather than the exception? VA cannot continue to maintain that the system is working as planned and soon there won’t be a backlog. If everything decided requires appeal, then it doesn’t work. Error in/ Error out.
A recent example that resonates with me was the CUE claim I’ve had bouncing around since 2011. I maintained that a VA doctor, in a C&P exam stated I was ‘totally disabled”- his exact words. After contacting the Big Mac and declining to call him Bob, I pointed this out. His minions promptly notified Fort Fumble in Seattle to ‘fix’ it pronto. This they did. They quickly typed up a Statement of the Case that redefined the meaning of 38 CFR §4.15. Skipping over the obvious definition, they were forced to quote the second half of it to avoid having to admit error. This is not a computer generated, hands-free decision. It has the fingerprints of an active Decision Review Officer with one thing in mind-denial based on anything that sounds vaguely legal. Had it been a true VBMS product, the decision would have been impartial and granted based on the Joint MOtion for Partial Remand mutually agreed upon in CAVC #12-1980. This, then, is the problem-the heavy hand of the AFGE and RO hierarchy and their fear of becoming an anachronism.
VBMS, were it handed to 3M or Xerox, would have been written in about half the time, with half the algorithms and twice the crosschecks for accuracy. The program could have been written by functional idiots for about $125 million and perhaps a few million dollar fixes for unforeseen metrics that were not specified by VA initially. One thing it would not have was a reject slot for virtually all the the claims based on some impossible measurement to attain. In simple terms, it’s the perfect three-card Monte game that cannot be won unless your claim is indisputable. Examples of indisputable would be healed through and through GSW/SFW wounds with documented accompanying Purple Hearts. Further examples would be missing legs and arms where the Presumption of Soundness affirmed you actually had them when you enlisted. VA can rate these without error because they cannot deny them.
The “Human” VBMS
All too often, we see the service medical records show that a particular condition or injury “resolved”. This assessment is arrived at via VA’s reading of the chicken bones. If you didn’t pitch a bitch and mention it in the SF 88 or SF 91 at separation, then it was healed and gone with the wind. This is the VA examiner you are dealing with- not an impartial assessment of the record by a VBMS computer program. SF 88 and 91 records rarely use the “acute and resolved” language which means the VA raters have manually entered the c-file and ascertained this determination. Regardless of what VA tells you, what VA touts as a purely computer -driven program is not- nor will it ever be one. It will always require a rater to interject him/herself into the process, search diligently for the nuanced phrase that can be seized upon and used to deny with. Trust me, this method is not arrived at by a word-searchable .PDF. It requires a sleuth with a ‘develop to deny’ stealth technique to search the SF 88 to see if you complained about your back at separation. Absence of evidence has now become the smoking gun to refute your claim. If you didn’t complain, you were healed. Period. No claim. Denied. Go home. Oddly, many of you do just that. And that my friend, is a correct decision on VA’s part if you fail to appeal.
Failure to appeal is certainly the biggest reason we see the 85 percentile of denials but it cannot explain it entirely. Most of us use Microsoft Word in one iteration or another. For those of you trained in the arts of Adobe, the ability to be functionally illiterate and still write is stupendous. Pray tell, then, why many a denial looks as if it were authored by someone from India unfamiliar with the written English language. The explanation is someone forced to use Adobe whose conversational skills are slim to none. VA Adobe programs are old and use choice phrases strung together like pearls on a necklace. VA raters, in their haste, fail to read the finished product or they would notice the dangling participles, incorrect use of tense or incorrect pronouns. Either that or they flunked English Literature and basic sentence construction.
My VR&E Counselor claims to have a degree in social something which makes him an expert on Independent Living matters. He must have cut classes on English 101 in his freshman year. Consider this sentence.
Also, in the development of your Individualized Independent Living plan, we had discussed your request for a Greenhouse but were denied. (sic)
I have hundreds more but that is a representative sample. If you were to send that in to VA as evidence, do you see where they might have a problem segregating out the subject and the object from one another? Also is an adverb, and while not specifically incorrect in its usage here, an adverb is most often used to modify or intensify a verb. As for why Greenhouse is capitalized, your guess is as good as mine. Psychologists march to different drummers.
Summing this up, anyone in the claims adjudication business would instantly find themselves standing in quicksand were they to depend solely on the precepts of VBMS. It, too, incorporates “virtual” dangling participles and run-on sentences that can only be made whole with some hands-on guidance and manipulation. Add to that the apparent inability to keep VBMS up and running on any given day without rebooting and signing in repeatedly, it makes for a mighty shaky platform to rate with. Narrow bandwidth combines with programs that constantly argue with one another. In order to arrive at a rating, right or wrong, it virtually demands you enter in manually and tamper with the answer to get it to reflect what you are required to do by your superiors(deny).
In a recent test with no human intervention, the ratings results using VBMS nomenclature were deemed unreliable due to the high rate of granted claims.
The flights of fancy and the inartful misapplications of law are glaring. I once received a pre-VBMS SOC that said my claim was final for failure to file a Form 9. I objected and said I’d submitted new evidence. The rater said that was immaterial. In order to obtain my SSOC (which would imply a fresh new denial), I would have had to file the Form 9. No Form 9 equaled no SSOC from which to appeal. This is what you are up against even now in the brave new world of VBMS. In essence, you are required to give them the material from which they can fashion your denial.
As for the Fully Developed Claims (FDC) process, it is a cruel joke. If every little thing isn’t perfect, you’re denied and it reverts back to a normal, slow boat claim to China. Unless the process is redeveloped as an independent process that doesn’t entail human intervention, the results will always be contaminated and unreliable. We’ll be able to tell when that happens because we’ll win the first time out.
At my two recent BVA adjudications with Judge Vito Clemente, I noted two things. Both decisions had one new facet in common.
- The decisions reflected the usage of the new VBMS system
- I won