[Senate Hearing 111-132]
[From the U.S. Government Publishing Office]
S. Hrg. 111-132
REVIEW OF VETERANS' DISABILITY COMPENSATION: WHAT CHANGES ARE NEEDED TO
IMPROVE THE APPEALS PROCESS?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 11, 2009
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
U.S. GOVERNMENT PRINTING OFFICE
47-762 WASHINGTON : 2009
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON VETERANS' AFFAIRS
Daniel K. Akaka, Hawaii, Chairman
John D. Rockefeller IV, West Richard Burr, North Carolina,
Virginia Ranking Member
Patty Murray, Washington Lindsey O. Graham, South Carolina
Bernard Sanders, (I) Vermont Johnny Isakson, Georgia
Sherrod Brown, Ohio Roger F. Wicker, Mississippi
Jim Webb, Virginia Mike Johanns, Nebraska
Jon Tester, Montana
Mark Begich, Alaska
Roland W. Burris, Illinois
Arlen Specter, Pennsylvania \1\
William E. Brew, Staff Director
Lupe Wissel, Republican Staff Director
----------
\1\ Hon. Arlen Specter was recognized as a majority Member on May 5,
2009.
C O N T E N T S
----------
February 11, 2009
SENATORS
Page
Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii........ 1
Burr, Hon. Richard, Ranking Member, U.S. Senator from North
Carolina....................................................... 5
Prepared statement........................................... 5
Tester, Hon. Jon, U.S. Senator from Montana...................... 3
Begich, Hon. Mark, U.S. Senator from Alaska...................... 4
Burris, Hon. Roland W., U.S. Senator from Illinois............... 5
Prepared statement........................................... 6
Isakson, Hon. Johnny, U.S. Senator from Georgia.................. 2
Johanns, Hon. Mike, U.S. Senator from Nebraska................... 4
WITNESSES
Kasold, Hon. Bruce E., Judge, U.S. Court of Appeals for Veterans
Claims......................................................... 6
Prepared statement........................................... 7
Response to post-hearing questions submitted by Hon. Daniel
K. Akaka................................................... 11
Response to written questions from Hon. Richard Burr to Hon.
William P. Greene, Jr., Chief Judge, U.S. Court of Appeals
for Veterans Claims........................................ 13
Terry, Hon. James P., Chairman, Board of Veterans' Appeals,
Department of Veterans Affairs................................. 15
Prepared statement........................................... 17
Response to post-hearing questions submitted by Hon. Daniel
K. Akaka................................................... 19
Baker, Kerry, Assistant National Legislative Director, The
Disabled American Veterans..................................... 40
Prepared statement........................................... 41
Response to post-hearing questions submitted by Hon. Daniel
K. Akaka................................................... 51
Cohen, Richard Paul, Executive Director, National Organization of
Veterans' Advocates, Inc....................................... 52
Prepared statement........................................... 54
Response to post-hearing questions submitted by Hon. Daniel
K. Akaka................................................... 58
Response to request arising during the hearing by Hon.
Richard Burr............................................... 73
Stichman, Barton F., Joint Executive Director, National Veterans
Legal Services Program......................................... 60
Prepared statement........................................... 62
Response to post-hearing questions submitted by Hon. Daniel
K. Akaka................................................... 70
APPENDIX
American Federation of Government Employees, AFL-CIO, Local 17;
prepared statement............................................. 79
Paralyzed Veterans of America; prepared statement................ 81
Scott, Carol W., Chair, Veterans Law Section, Federal Bar
Association;
letter......................................................... 85
REVIEW OF VETERANS' DISABILITY COMPENSATION: WHAT CHANGES ARE NEEDED TO
IMPROVE THE APPEALS PROCESS?
----------
WEDNESDAY, FEBRUARY 11, 2009
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m., in
room 418, Russell Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
Present: Senators Akaka, Tester, Begich, Burris, Burr,
Isakson and Johanns.
OPENING STATEMENT OF HON. DANIEL K. AKAKA, CHAIRMAN,
U.S. SENATOR FROM HAWAII
Chairman Akaka. This hearing will come to order.
Good morning, everyone. It is good to see all of you here
this morning. I am pleased that all of you can join us today
for a continuation of the hearings that we began last year to
look at VA's disability compensation process.
Today's hearing will focus on improvements that can address
delays in appeals.
During the last Congress, the Committee held four hearings
concerning disability compensation: delays in claims
processing; the work of the Veterans' Disability Benefits and
Dole-Shalala Commissions; a review of the CNA Corporation and
Institute of Medicine reports on disability compensation; and
the relationship between compensation and rehabilitation for
disabled veterans.
The goal of the Committee is to ensure that claims are
adjudicated accurately, in a timely fashion, and as close to
the veteran's home as possible. Everyone involved realizes that
there is no quick fix to solving problems with disability
claims, but the Committee, working with the Administration and
with those who work with veterans, intends to do all it can to
improve this situation.
Tackling the problems will require action on many fronts.
At a very basic level, VA must get claims files organized. Last
November I wrote then-Secretary Peake suggesting that the
Department improve existing paper files. In response, VBA
formed a working group to make improvements, and I really
appreciate VA's prompt response to my request at that time.
Another facet of improving the claims and appellate process
is greater use of technology. Moving to a paperless file system
with electronic medical information must remain a top priority
for VA.
VA and DOD must continue to build upon the collaboration we
have seen in recent years, such as through the Disability
Evaluation pilot program and the recent plan to expedite the
claims of servicemembers seriously injured in combat.
The problems in VA's claims adjudication process affect
appellate review. Also, problems in the appeals system can
compound delays and lead to inadequate decisions. Once a claim
has been appealed from an initial decision, many new concerns
may arise.
As Judge Kasold notes in his testimony, judicial review has
now been in place for 20 years. The time is ripe to see what is
working, what improvements can be made, and to define the
purpose and value of several levels of appellate review.
The Board of Veterans' Appeals is a part of VA. It reviews
benefit claims and appeals, and also issues decisions on those
appeals. The Board began and evolved when there was no judicial
review. BVA was created in an attempt to provide independent
reviews of VA decisions. Now that there is judicial review of
VA decisions, we can begin to ask about the proper role of the
Board.
The Court of Appeals for Veterans Claims is an independent
judicial entity and, as such, must be accorded a greater degree
of autonomy. At the same time, the Committee must be certain
that the statutory authority for the Court is appropriate.
While there have been some positive steps in recent years,
especially the addition of new staff at all levels, the
progress is unsatisfactory. We are 20 years into the era of
judicial review, and I know that it has made a great
difference. At the same time, there have been consequences,
most of which were not anticipated when the Court was
established.
There are some very interesting and compelling suggestions
that will be made in today's hearing, and I intend for the
Committee to pursue them.
I reiterate that our goal is to provide veterans with
accurate and timely resolutions to their cases. No idea is too
bold. We must act quickly, yet responsibly, to address the
current situation and to find solutions.
I, again, welcome everyone to today's hearing and look
forward to a productive session here this morning.
Now I would like to call on Senator Isakson for any opening
remarks he may have.
STATEMENT OF HON. JOHNNY ISAKSON,
U.S. SENATOR FROM GEORGIA
Senator Isakson. Thank you, Mr. Chairman. My remarks will
be very brief, and I thank you very much for calling this
timely hearing.
I had a veteran in my office this morning, a Purple Heart
veteran, by the way, who had a 9:30 appointment. I told him I
had to excuse myself and leave him with staff because I was
going up to a hearing on the timely determination of disability
claims for VA, where the final disposition of his 100 percent
disability took 8 years.
So, since he was here today and since you called this
timely session, I think it is important that we hear from the
people at the Veterans Administration to address it.
Thank you very much, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Isakson.
Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. I, too, want to thank you Chairman Akaka. I
look forward to the testimony that will be presented at this
hearing. I want to thank the witnesses for being here, of
course, and to share their recommendations to address what I
think is the single biggest challenge that faces the VA right
now.
At every one of these hearings, I start by saying we have
100,000 veterans living in Montana. Over 11 percent of
Montana's population have served in our military. And I say it
every time because I am proud of it. I think the folks in
Montana are proud to serve. They are proud to send their kids
to service, and these great men and women form a core of
American values in these Montana communities.
Everywhere I go in Montana, I hear about the great health
care in the VA, but I also hear veterans tell me about how hard
it is to get their foot through the door, and that is a
reflection of the disability claims process. It takes too long,
it is subject to too many errors, and it costs the veterans too
much.
The mere fact that 70 percent of the BVA decisions appealed
to the Court are sent back to the VA is astonishing. According
to the Court, the most common error is a failure to
sufficiently explain the basis for a decision. And how can the
VA explain issuing ratings that it cannot support?
It is a waste of time. It is a waste of money. And, it is a
waste of resources.
This Committee has provided more resources to the VA to
begin to correct this funding and staffing deficiency, and I
want to make sure that the money is actually for the good
purpose of serving our veterans.
I believe that as we continue to wage two wars, the demand
is going to increase on the entire system, from the individual
claims processor working at the RO at Ft. Harrison, all the way
up to the Court of Appeals. So we need to get it right, and we
need to get it right fast.
I want you to know that you have my ear. You can count on
me as an ally, and I am listening. I am listening for viable,
common-sense recommendations that reduce waste, improve care
and save the lives of our veterans.
Our veterans do not have months or years to wait for a
decision about their health care from the VA. They need it
right now.
I want to thank the witnesses for being here. It means that
you and your organizations want to be a part of the solution.
So I want to thank you for your willingness to roll up your
sleeves and get after it.
I am interested in hearing from the panel about what they
see the VA doing with that money and what else needs to be done
to fix the mess we are in.
The folks who have been in service to our country deserve
nothing less than full, fair hearings before our government,
and when we do not give them that, we fail them.
So, with that, I want to thank you, Mr. Chairman. I look
forward to the hearing.
Chairman Akaka. Thank you very much, Senator Tester.
I now turn to Senator Johanns for his opening statement.
STATEMENT OF HON. MIKE JOHANNS,
U.S. SENATOR FROM NEBRASKA
Senator Johanns. Mr. Chairman, I also say thank you for
putting this hearing together.
I am, as many of you know, very new to the Committee. And I
will say that one of the things when I talk to my veterans in
Nebraska, the first thing they say is, ``We are so happy you
are on the Committee.'' But then they almost always raise
appeals processing as the second issue.
Here is what I am interested in hearing about, and again
part of what I am asking the witnesses to do is give me a
little education when you testify. I am just wondering if there
is, for lack of better terminology, a triage system in place
for these disability claims.
For example, it occurs to me that some claims would just be
clear, that they are just a matter of moving through the
process quickly, and getting to a result just simply because
the disabilities lead to a conclusion under any reasonable
definition. I wonder if we have the kind of system that would
move these veterans through the process lickety-split.
And then, of course, there are other cases that maybe
require more time, more information from the doctor, and those
go into a separate determination.
So, again, Mr. Chairman, I really thank you for this.
Help me get educated here; help me understand what you are
trying to do to deal with this system--and count me in--in
terms of trying to figure out a way to solve the problem.
Chairman Akaka. Let me call on Senator Begich.
STATEMENT OF HON. MARK BEGICH,
U.S. SENATOR FROM ALASKA
Senator Begich. Thank you, Mr. Chairman, and thank you very
much for holding this hearing. I will be very brief. Again, I
thank you all for being here.
What I am looking for is a three-stage approach in what
would be those realistic short-term ideas that we can move
forward on, and then the mid- and long-term--knowing that we
sometimes have great, grandiose ideas to try to solve it all in
one fell swoop. That is not practical. But how do we step
through it?
Coming from a State like Senator Tester's where a large
percentage--11 percent--of our State's population are veterans,
this is an issue of great concern for me. So, I am looking
forward to your comments but also just very practical
approaches and realistic resources that are going to be
necessary for the short-term as well as long-term.
So, thank you very much for being here.
Thank you, Mr. Chairman.
Chairman Akaka. Senator Burr.
Senator Burr. Aloha, Mr. Chairman.
STATEMENT OF HON. RICHARD BURR, RANKING MEMBER,
U.S. SENATOR FROM NORTH CAROLINA
Senator Burr. My apologies for my tardiness. I am going to
ask that my opening statement be part of the record.
I am anxious to hear those individuals who are here to
testify, and I thank you for calling this hearing.
[The prepared statement of Senator Burr follows:]
Prepared Statement of Hon. Richard Burr, Ranking Member,
U.S. Senator from North Carolina
Good morning, Mr. Chairman, and welcome to our witnesses. Mr.
Chairman, I appreciate you calling this important hearing to discuss
how we can reduce the delays that too many of our Nation's veterans and
their families face in trying to access veterans' benefits.
For those who have served and sacrificed on behalf of our Nation,
they deserve prompt and just responses when they request benefits from
the Department of Veterans Affairs. But, unfortunately, it can take
months and even years for some veterans to get final answers to their
requests. In fact, I hear from veterans in North Carolina about how
long it takes to get a decision on their claims.
For starters, it takes an average of about 6 months for a VA
regional office to make an initial decision on a claim for benefits.
And that's just the beginning of the delays and frustrations if a
veteran appeals that decision. That process could include reviews by
the Board of Veterans' Appeals and the Court of Appeals for Veterans
Claims.
I know the Board and Court have been making efforts to get
decisions to veterans faster. Both were able to reduce their backlogs
of appeals last year. I also recognize that there may be many reasons
for why the appeals process takes so long, including errors in
development of the case and steps Congress built into the process. But,
whatever the reasons, it's clear that the appeals process takes far too
long, and it's not acceptable.
After starting an appeal, it takes on average almost 1,100 days
before a veteran will get a decision from the Board of Veterans'
Appeals. If the veteran then appeals to the Court of Appeals for
Veterans Claims, he or she may wait 14 months for the Court to rule. In
total, that's over four and a half years after the veteran first
applies for benefits!
On top of that, veterans may face much longer delays if their cases
have to be remanded or sent back by the Board or by the Court. And some
have their appeals languish even longer because their cases are
remanded on multiple occasions.
Given all this, it's understandable why many veterans, including
veterans back in North Carolina, are extremely frustrated by this long
appeals process. That's why it's so important that we figure out how we
can help veterans get final decisions on their claims faster and
without unnecessary frustration.
I appreciate the willingness of our witnesses, including Judge
Kasold and Chairman Terry, to share with the Committee their views on
how this process could be improved. I hope today we will have a
constructive discussion that will serve as the foundation for much-
needed and long-overdue improvements.
Again, Mr. Chairman, I want to thank you for holding this important
hearing. I look forward to working with you and others on the Committee
to promote an appeals system that will serve our veterans better.
I thank the Chair.
Chairman Akaka. Thank you.
Senator Burris.
STATEMENT OF HON. ROLAND W. BURRIS,
U.S. SENATOR FROM ILLINOIS
Senator Burris. Mr. Chairman, I will put my opening
statement in the record because I have to make another markup
over at another committee, but I will be back.
So, I do want to make sure that we are taking care of
veterans. That is key.
Thank you, Mr. Chairman.
[The prepared statement of Senator Burris follows:]
Prepared Statement of Hon. Roland W. Burris, U.S. Senator from Illinois
Thank you Chairman Akaka for holding this hearing on an issue that
is of great importance to our Nation's veterans.
Today we gather to discuss improvements that can be made to
mitigate the delay in processing appeals. Our veterans deserve no less
than to have their appeals determined in a timely and accurate manner.
As a new Member on this Committee, I am beginning to hear from veterans
in Illinois about issues surrounding appeals processing at the Board
and Court, and claims' adjudication at the Regional Office level.
I hope that today I can learn as much as I can about these issues.
Specifically, witnesses have been asked for legislative or policy
recommendations that may help expedite the timeliness of appeals
without sacrificing accuracy. I am particularly pleased that veterans'
advocates are present to share their perspective on the process and
ideas for reform. Indeed I hope that this hearing will be a starting
point for dialog and action to address this problem.
I thank all of our witnesses for all that they do to help veterans.
I look forward to today's testimony.
Chairman Akaka. Thank you very much, Senator Burris.
I want to welcome our first panel of witnesses to today's
hearing. I appreciate your being here this morning and look
forward to your testimony.
First, I welcome the Honorable Bruce E. Kasold, a Judge of
the U.S. Court of Appeals for Veterans Claims. The Court is
part of the Judicial Branch of government and fully independent
of VA. I appreciate your participation today so that the
Committee might hear the Court's views as part of our oversight
of the appellate process.
I also welcome James P. Terry, the Chairman of the Board of
Veterans' Appeals of the Department of Veterans Affairs.
And I thank you both for joining us today. Your full
statements will appear in the record.
Judge Kasold, will you please begin with your testimony?
STATEMENT OF THE HONORABLE BRUCE E. KASOLD, JUDGE, UNITED
STATES COURT OF APPEALS FOR VETERANS CLAIMS
Judge Kasold. Thank you, Mr. Chairman, and aloha.
Chairman Akaka. Aloha.
Judge Kasold. Members of the Committee, I have a prepared
statement, and I present it to the Committee for the record. My
comments now will be brief.
Our Chief Judge Greene sends his personal regrets that he
could not be here today. But on his behalf and that of my
colleagues, we appreciate the Committee's continued interest
and oversight into the administrative functioning of the Court
and the administrative process from which we receive appeals.
It is also a personal honor to be present here today.
As noted in my statement for the record, the Court recently
recognized the 20th year of the passage of the legislation that
created the Court, and this coming Fall we will celebrate the
20th year of the actual convening of the Court.
I look forward to addressing any questions you might have.
[The prepared statement of Judge Kasold follows:]
Prepared Statement of Hon. Bruce E. Kasold, Judge,
U.S. Court of Appeals for Veterans Claims
Mr. Chairman and Members of the Committee: Thank you for allowing
the U.S. Court of Appeals for Veterans Claims' (the Court) the
opportunity to provide testimony today. I am here as the designee of
the Court's Chief Judge, William P. Greene, Jr., who is unable to
attend the hearing.
As a prelude, I would be remiss if I did not note for the record
that the Court passed a milestone this past November 18, which marked
the 20th year since its creation when President Ronald Reagan signed
into law the Veterans' Judicial Review Act of 1988 (VJRA). The Court
actually convened with three judges on October 16, 1989, and we look
forward to celebrating next Fall, the 20th year of judicial access for
veterans and their families.
According to your January 22, 2009, invitation letter, the hearing
``will focus on improvements that can be made to mitigate the delay in
processing appeals.'' More specifically, the Committee has requested
whether we have any legislative or policy recommendations that might
help expedite the timeliness of appeals, and any perspectives we have
on the relationship between the Board and the Court.
I. AN ADMINISTRATIVE AND JUDICIAL APPELLATE PROCESS
As you are aware, the appellate process for those with claims for
veterans benefits has two distinct fora: administrative and judicial.
Within VA, a Regional Office generally processes the claim and renders
the first decision. When a claimant is dissatisfied with that decision,
he or she has the right to appeal to the Board. The Board reviews the
claim de novo; that is, it reviews the claim without any deference
given to the initial decision. The Board ultimately renders the final
decision for the Secretary. If the claimant is dissatisfied with the
Board decision, he or she may seek reconsideration by the Board, or,
appeal to the Court.
Throughout the proceedings below, the claimant and the Secretary
should be working together to maximize the claimant's benefits, if any
are warranted under the statutes and regulations governing benefits.
The Secretary has an affirmative duty to assist the veteran in
gathering evidence, which includes, inter alia, liberally reading the
scope of his claim, gathering evidence, advising the claimant what is
needed to substantiate the claim, and providing a medical examination
when
needed.
When an appeal is taken to the Court, the claimant enters the
judicial arena. In the Federal judicial system, the parties are viewed
equally, and the claimant, now the appellant, generally has the burden
of demonstrating that the Board decision is either clearly erroneous,
or that there is some procedural error that has been prejudicial to the
claimant. If dissatisfied with a decision from the Court, an appellant
has the right to appeal to the U.S. Court of Appeals for the Federal
Circuit, although that Court's jurisdiction generally is limited to
questions of law, and most appeals are dismissed for lack of
jurisdiction. Upon dissatisfaction with the results from the Federal
Circuit, appellants may seek certiorari at the Supreme Court. Over our
twenty-year existence, the Supreme Court has taken less than a handful
of cases involving VA benefits claims.
A. The Judicial Appeal Process
Within our Court, I am pleased to report that we are operating on
all cylinders. In contrast to the dynamics experienced over the past
five years, which saw the Court (1) reduced at one point to only three
active judges taking a full case-load, and two active judges nearing
senior status and not taking new cases, (2) hampered with excessive
turnover in leadership, and (3) experiencing anew the growing pains of
a virtually re-established Court with the replacement of six judges in
a two-year period, I am pleased to report that we now have a full
complement of seven experienced, active judges. Moreover, under the
capable leadership of our Chief Judge, we have, inter alia, an active
recall-program for our senior judges, as well as a new mediation
program and we now are in the process of fully implementing e-filing.
Without doubt, our senior judges have, overall, significantly helped
with the issuance of timely judicial decisions. Equally significant has
been the implementation last Spring of an aggressive mediation program,
which, to date, has succeeded in expediting a resolution in over 25% of
the appeals filed, with the parties agreeing to a disposition that does
not need judicial review; generally, the parties are agreeing to a
remand for further adjudication below.
As always, the Court is looking for ways to ensure timely judicial
review. The primary time-consuming process that warrants review is the
time to prepare the record before the agency and the briefing process.
Both are essential to a judicial process that is not only fair and just
to both parties, but perceived to be fair and just by the parties. On
this issue I note that there are a significant number of requests for
additional time to prepare the record before the agency or a brief.
Both parties have time-management problems, but the Secretary has the
greater number of requests for an extension of time. I am not familiar
with the Secretary's internal operations, but I understand there is
recognition that additional staffing might be warranted, and I suspect
it might be the most significant factor in helping to reduce the number
of requests for additional time in which to prepare the record or
required briefs.
Viewing the judicial appeal process overall, and particularly in
context of twenty-years of the development of Veterans law, it appears
time to seriously consider the added value of the unique, additional
right of the parties to seek review by another Federal appellate court.
The majority of cases appealed to the Federal Circuit generally are
dismissed for lack of jurisdiction--that is, they generally present no
legal issue for review--or they are affirmed because the legal issue
raised on appeal is well-settled. Appeals presenting a more novel or
difficult issue can be more time consuming, and these appeals in
particular can generate significant delays in the processing of claims
below and appeals at the U.S. Court of Appeals for Veterans Claims.
Moreover, a party dissatisfied with the decision might seek certiorari
at the Supreme Court, with a resultant, further delay in the processing
of other cases and appeals involving the same issue.
There would appear to be little added-value to the current judicial
process which not only permits, but requires an appeal to the Federal
Circuit, before an appellant dissatisfied with a decision from the U.S.
Court of Appeals for Veterans Claims might seek certiorari from the
Supreme Court. Regarding the value of multiple layers of appellate
review I am reminded of the wisdom of Supreme Court Justice Robert H.
Jackson, who observed:
Whenever decisions of one court are reviewed by another, a
percentage of them are reversed. That reflects a difference in
outlook normally found between personnel comprising different
courts. However, reversal by a higher court is not proof that
justice is thereby better done. There is no doubt that if there
were a super-Supreme Court, a substantial proportion of our
reversals of state courts would also be reversed. We are not
final because we are infallible, but we are infallible only
because we are final.
Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring.).
Is the time right to evaluate the need for the unique, additional
appellate review provided by the Federal Circuit? I suggest it is
worthy of consideration, and I note that although direct certiorari
review by the Supreme Court initially was not provided for the other
two Article I appellate courts--the U.S. Court of Appeals for the Armed
Forces (formerly the Court of Military Appeals), and the District of
Columbia Court of Appeals--over time, as those courts matured and
developed a seasoned body of case law, such review was provided.
Moreover, when such review was provided for the D.C. Circuit Court of
Appeals, the intermediate review previously provided by the U.S. Court
of Appeals for the District of Columbia was eliminated.
Eliminating the added intermediate appellate review currently
extant with judicial appeals involving veterans benefits will reduce
the time involved in the judicial appeal process. I know some will
object to losing that unique, additional bite at the apple, but it has
been my observation that the few significant cases that the Federal
Circuit viewed differently than our Court did, generally have come down
fairly equally, with the Secretary or the appellant being satisfied in
one case only to be dissatisfied in another. Given Justice Jackson's
observation, and the fact that we now have a seasoned body of case law,
it appears timely to bring the judicial appeals process provided for
review of claims for veterans benefits in line with the overall Federal
judicial appeals process.
B. The Administrative Appeal Process
When he spoke at the Court's Eighth Judicial Conference in April
2004 about the relationship between the Court and VA, Professor Richard
J. Pierce, Jr., Administrative Law Professor at the George Washington
University Law School, cautioned that:
``Reviewing courts have important roles in the decisionmaking
process, but they are narrowly confined roles. The relationship
is definitely not that of a partnership or a hierarchical
relationship in which the court can tell the agency what to
do.''
Professor Pierce went on to state that in situations where the
reviewing court specializes in the subject matter that it reviews, such
as here, the reviewing court must work hard to resist the temptation to
fall into a partnership-type mentality with the agency, and must
remember that ``agencies are autonomous entities that are entitled to
respect and deference from the courts.'' (Pierce quoting Vermont Yankee
Nuclear Power Corp. v. NRD, 439 U.S. 961 (1978). In sum, the Court sits
in a judicial role and lacks the day-to-day administrative claims
processing experience that might enlighten one on ways to improve on
the timeliness of processing claims below.
Nevertheless, we have some general observations, although I note
that the Chairman of the Board generally has recognized these problem
areas already, as stated in his annual report to Congress. Any
observations of problem areas must take into consideration the gravamen
of the situation. It is my understanding that in the past couple of
years, the Secretary has processed and rendered an initial decision in
hundreds of thousands of claims annually, with around 40,000 being
appealed to the Board. About 15% of these decisions are appealed to our
Court, but it is my understanding that a good number of the Board
decisions involve a remand for continued adjudication by the regional
office. This general fact presents two areas for discussion.
1. Appeal of Board Decisions
Of those Board decisions appealed to the Court, about 70% are
remanded for further adjudication. The most common error is the failure
to sufficiently explain the basis for a decision. The Board is
statutorily required to explain its decision, and our case law requires
an explanation that discusses the material and relevant evidence and
explains the basis for the decision so that it permits the appellant to
understand the precise reason for the decision as well as permits
judicial review.
It is important to understand the impact of this requirement. Under
our case law, except in very limited circumstances, an appeal is not
remanded for the sole purpose of requiring the Board to explain its
decision, which likely could be done in relatively short order, as
evidence is not further developed. Rather, a remand from our Court also
permits the appellant a new opportunity to further develop the claim.
He or she might gather new evidence, request the Secretary to assist in
gathering records, and even present a basis for an initial or new
medical examination to be given. This development takes time,
particularly given the fact that the claim had been denied on the facts
previously developed. Since this involves the development of a claim
for veterans benefits, as opposed to an added judicial review of a
completed record, this second chance to develop the claim seems
consistent with our Nation's commitment to seeing that those entitled
to veterans benefits receive those benefits. The time added to
processing the claim seems justified, although efforts should certainly
be undertaken--and continued--to reduce the need for the Board remand
in the first instance.
Another large number of cases are remanded because the development
below was inadequate. A medical exam was not provided, or records were
not obtained, or a hearing officer failed to inform a claimant of a
reasonably raised, undeveloped issue with the claim. Should these be
properly done in the first instance? Certainly. But here, we cross the
threshold into management and resources, and I defer to the Secretary
and Chairman of the Board for their insight on this. Suffice it to say,
human error is the sustaining basis for the creation and continuation
of appellate courts, including the U.S. Court of Appeals for Veterans
Claims.
About a quarter of the cases appealed to the Court are affirmed.
This often ends the matter, although a dissatisfied party has a right
to appeal to the Federal Circuit, delaying the time in which resolution
is final. Less than 5% of the appeals to the U.S. Court of Appeals for
Veterans Claims involve an outright reversal of the Board. No doubt
appellants would like to see that higher, but I note that the high
remand rate can often result in an award, and it is an award based on
the proper development of the facts (improperly done initially), or
renewed development of the facts (generated by the claimant in
conjunction with a remand based on a faulty explanation of a Board
decision).
2. Remand of Claims by the Board
Pursuant to statute, and consistent with general appellate review,
the Court does not review a decision of the Board that has remanded a
claim for further development. There has been no suggestion that I know
of to change this, but for the record, we perceive that doing so would
only delay processing further with no benefit to anyone.
Nevertheless, we are cognizant of the high number of remands
generated by the Board. This appears consistent with their mandate,
which includes de novo review of the claim--that is a complete review
of the matter without any deference to the initial decisionmaker, as
well as application of the benefit of the doubt and the duty to assist.
As I understand it only a small percentage of the hundreds of thousands
of claims adjudicated by the Secretary are appealed to the Board.
Nevertheless, a high number of remands suggests a high degree of error
in those claims appealed to the Board, and this would appear to be an
area that might be improved. As noted above, however, we cross into the
administration and management of the claims process, where we defer to
the Secretary, the Board Chairman, and the oversight provided by
Congress and the President.
II. RELATIONSHIP BETWEEN THE COURT AND THE BOARD
As indicated previously, the Board sits atop the administrative
adjudication of claims for veterans benefits. It is an independent body
within VA and it conducts de novo review of the claims it reviews,
although it is required to apply the Secretary's regulations and
policies, and opinions of the General Counsel. Under these parameters,
the Board ultimately renders the final decision for the Secretary on
the initial decisions of the Secretary under laws that affect the
provision of veterans benefits.
Once the Board renders its final decision on a matter, it may be
appealed to the Court. Only a dissatisfied claimant may appeal. The
Secretary is not permitted to initiate an appeal; however, once an
appeal is initiated, he may defend the decision of the Board, although
he is not required to do so. Indeed, the Secretary frequently suggests
to the Court that there is Board error and that remand is appropriate,
and the high success rate in our mediation process indicates the
Secretary's cooperation with the mediation process.
When appealing to the Court, the claimant transitions from the
veteran-friendly administrative process, where the Secretary has a duty
to assist and apply the benefit of the doubt, to the traditional
adversarial, judicial, appellate process, where both parties are equal
and expected to present their positions to the Court for judicial
decision (or mediation).
Unlike the Board, the Court generally does not conduct de novo
review, except when questions of law are presented. Thus, the facts are
developed below and weighed below with application of the benefit of
the doubt. On appeal to the Court, the facts found by the Board (which
may differ from those found by the Regional Office, particularly since
they are reviewed by the Board de novo) are reviewed for clear error.
Consequently, consistent with general Federal appellate review, a
degree of deference is given to Agency fact-finding. In contrast, but
also consistent with general Federal appellate review, questions of law
are reviewed without deference. Also consistent with general Federal
appellate review, the appellant generally has the burden of
demonstrating error.
By statute, the Court is permitted to render single-judge
decisions. Given the fact that a claim on appeal to the Court has
undergone at least two reviews below, with fact-development available
at each stage, the nature of an appeal frequently presents no new issue
of law, and involves only a review of the facts and application of the
law. The single-judge authority permits a case to be reviewed and a
decision rendered, and written, more timely than a panel case can be
issued. To ensure uniformity and soundness of decision, however, each
single-judge decision is circulated for review by all active judges.
Further, a party dissatisfied with the decision has a right to request
reconsideration by the single judge and/or panel review which generates
a panel decision that either finds no basis for full-panel review and
lets the single- judge decision stand, or conducts a full review of the
appeal, de novo to the single-judge decision. A single-judge decision
is binding with regard to the appeal considered but it has no binding
effect on other cases being processed below--this is because it
generally is fact specific or involves an already accepted application
of law.
Those appeals presenting novel questions of law or reasonably
debatable questions of fact or law are reviewed by panel or the full-
court. Over the past couple of years, the Court has averaged about 65
appeals that are sent to panel for initial decision or decided by the
full-court. Full-court and panel decisions have full precedential
effect and are binding on the Secretary and the Board, as well as
future decisions of the Court when issued by a single judge or another
panel.
Judicial review by a specialized Court, as is the U.S. Court of
Appeals for Veterans Claims--limited to review of final Board decisions
and ancillary matters--might be viewed as twofold. It provides judicial
review for the individual claimant; that is review that is wholly
independent of the executive or legislative branch and administrative
pressures that might be presented outside the context of legislation.
Within our Nation and set of values, this is a sacred right, and one
for which our veterans fought many years to achieve. But there is a
second aspect to limited jurisdictional review by a specialized court.
Judicial decisions that have precedential value (our panel and full-
court decisions) are binding on the Agency, and can help establish
uniformity in the adjudication of matters within the Agency. Compliance
is enforced not only by the Secretary and the Board, but by the uniform
application of law and subsequent decisions of the Court.
With rare exception, we perceive no bad faith or gross negligence
in the processing and adjudication of claims below. From our
perspective, an enormous number of claims are processed and adjudicated
by the Secretary and the Board. Judicial review helps to ensure
mistakes are corrected. Efforts should indeed be taken to reduce the
number of errors made, particularly the repetitive errors, but the
overall review structure between the Court and the Board is sound.
It strongly appears that at least for the present and near future
the number of claims filed below will remain increasingly high, which
likely will keep appeals to the Board and the Court increasingly high.
Congress has authorized two new judges and, I understand, additional
staffing below. At this time, we perceive no need for any significant
additional increase in staffing for the Court. I defer to the Secretary
and the Board with regard to their operations.
III. CONCLUSION
At his nomination hearing before the Senate Judiciary Committee in
September 2005, now Chief Justice John Roberts compared the work of a
Supreme Court justice to that of a baseball umpire and said: ``I will
remember that it's my job to call balls or strikes, and not to pitch or
bat.'' Although my colleagues at the U.S. Court of Appeals for Veterans
Claims and I do not equate ourselves to the Chief Justice, we certainly
heed his counsel. Thus, I assure this Committee that each judge on the
Court strives to live up to the oath that we took when we were
appointed to the bench--to administer justice and to faithfully and
impartially discharge and perform the duties incumbent upon us as
judges of a court of law. We appreciate the opportunity to engage in
dialog aimed at strengthening and improving the veterans benefits
adjudication system as a whole. However, we recognize that it is the
legislative branch of government that must take the steps necessary to
create the laws and the framework which the Executive branch is charged
to administer, and it is our responsibility to provide judicial review.
On behalf of the judges of the Court, I thank you for the Committee's
efforts in this regard, and for your invitation to share our views on
this subject.
______
Response to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka to
Hon. Bruce E. Kasold, Judge, U.S. Court of Appeals for Veterans Claims
Question 1. You provided testimony that 70 percent of cases that
reach the Court are remanded. Can you please explain how you arrived at
that number?
Response. In fiscal year (FY) 2008, the Court issued a total of
3,542 merits decisions, of which 2,787 involved a remand, which is 78%.
In FY 2007, 65% of the merits decisions involved a remand. In FY 2006,
it was 76%. In FY 2005, it was 73%. So, in general, about 70% (actually
73% over the four years noted) of the Court's merits decisions involve
a remand.
We maintain statistics on subcategories, which might have been part
of the confusion expressed by the Board Chairman at the hearing. For
example, 1,625 appeals decided in FY 2008 involved only an ordered
remand (the vast majority are the result of joint motions for remand);
559 appeals involved a reversal, vacatur or set aside, in addition to a
remand; and 603 involved a partial affirmance or dismissal, along with
a partial reversal, vacatur, or set aside, and a remand.
Question 2. What percentage of cases that reach the Court are never
seen by a judge?
Response. We do not track how many cases are never seen by a judge.
However, we do track how many appeals are filed each year and how many
merits decisions are rendered each year by judges. In FY 2008, 4,033
appeals and 95 petitions were filed and judges issued 1,457 merits
decisions and 78 decisions on petitions. For FY 2007, there were 4,549
appeals and 97 petitions filed, and 1,779 appeals and 92 petitions
decided that year by judges. Also, there are a number of appeals that
are dismissed for lack of jurisdiction; in FY 2008 there were 369 cases
dismissed for lack of jurisdiction and for FY 2007 there were 317. In
addition to making final determinations in appeals, judges also review
and act on a variety of motions related to cases pending before the
Court, many of which are resolved short of a merits decision that is
rendered by a judge.
Question 3. What percentage of cases that reach the Court are
remanded because the development below was inadequate?
Response. We do not classify remands based on subject matter,
however, the vast majority of remands are based on inadequate
development or failure of the Board to provide an adequate statement of
reasons or bases for its decision.
It is important to note that, as an appellate Court, our general
statutory charge is to review a Board decision for error, both
procedural and on the merits. Most errors identified in Board decisions
are procedural, and most require remand because the error is
potentially prejudicial to the appellant and/or the record is not fully
developed. However, a remand does not necessarily result in an award of
benefits because once the error is corrected, and any additional
evidence is developed or otherwise gathered so that a fair decision can
be rendered without prejudice to the appellant, the end result may yet
be that the claim is not supported by the evidence and is denied.
Judicial appellate review helps ensure that errors are corrected, but
ultimately every claim must stand on its own set of facts.
Question 4. What percentage of cases that reach the Court are
reversed?
Response. We do not keep statistics on what percentage of cases
involve only a reversal. Rather, as noted above, we track the overall
number of appeals that involve a reversal or a vacatur (or set aside--
they are the same), and a remand, of which we had 559 in FY 2008. We
also track the overall number of appeals that involve one or more of
these actions, along with a partial affirmance or dismissal, of which
there were 603 in FY 2008.
However, I can state that outright reversal and award of benefits
is infrequent. As explained in previous testimony by our Chief Judge,
this is because Board errors frequently are procedural and/or the
record often is not fully developed. Decisions that are vacated may
include a reversal of a finding of fact by the Board, but remand is
nevertheless warranted because the reversed fact does not necessarily
mean that an award is warranted.
For example, a reversal of the Board's finding that a medical exam
was adequate generally means that a new exam must be obtained.
Similarly, a reversal of the Board's finding that the duty to assist
had been satisfied because the Secretary failed to secure certain
records, generally means that the records have to be obtained. In each
case, the matter has to be readjudicated.
Question 5. What percentage of appeals to the Federal Circuit are
dismissed for lack of jurisdiction?
Response. We do not keep statistics on determinations by the
Federal Circuit, and we were unable to find any information on their
web site regarding the number of cases they dismiss for lack of
jurisdiction. In FY 2008, 158 decision of the Court were appealed to
the Federal Circuit. In FY 2007, it was 314; in FY 2006, it was 382,
and in FY 2005 it was 186.
Question 6. In how many cases involving VA benefits cases has the
Supreme Court granted certiorari?
Response. The Supreme Court has granted certiorari in four cases
involving VA benefits: Brown v. Gardner, 513 U.S. 115 (1994);
Scarborough v. Principi, 541 U.S. 401 (2004); and Peake v. Sanders, 487
F.3d 881 (Fed. Cir. 2007), cert. granted, (U.S. June 16, 2008) (No. 07-
1209) (consolidated with Peake v. Simmons, 487 F.3d 892 (Fed. Cir.
2007).
Question 7. Mr. Stichman's testimony states that the high error
rate that exists in BVA decisionmaking is one reason for delay in the
appeals process because it requires veterans to appeal to the Court to
correct these errors, which then may lead to remand. How do you
respond?
Response. As I understand it, the Board decides over 40,000
administrative appeals every year, and only about 11% are appealed to
the Court. However, a significant number of the decisions that are
appealed to and reviewed by the Court do contain error.
Question 8. According to Mr. Baker's testimony, VA is less than
helpful in the mediation process at the Court. From the Court's
perspective, has VA been cooperative?
Response. It is not clear if Mr. Baker's comments were made in
relation to the Court's new mediation process or our former, less
formal conferencing method. As I noted in my testimony, we modified our
mediation process last year based on comments received from the
parties, which generally were presented at our judicial conferences.
Since the inception of our revised mediation process, approximately 58%
of the appeals where a mediation conference has been scheduled
ultimately result in the parties reaching an agreement on a
disposition. That outcome suggests that the new mediation program works
reasonably well, evidencing good faith on the part of both parties.
Question 9. What is the Court's target date for full implementation
of e-filing?
Response. I am pleased to state that it is already in effect, and
has been since October 14, 2008, for all represented parties. Our
implementation followed an 11 month Pilot Program that required the
electronic filing of all applications for attorney fees and expenses
filed pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.
Sec. 2414(d). As expected with such a significant change in processing,
we have expended considerable effort over the past five months training
our employees and members of the Court's Bar on the e-filing system.
The Court continues to review the system in order to make whatever
changes might be necessary to further improve the e-filing process.
Currently we allow e-filing by pro se appellants only upon Court
approval. We are monitoring this, although we do not anticipate
requiring e-filing for pro se
appellants.
Question 10. How is success of the mediation process calculated?
Response. One measure of success can be calculated from the number
of cases that are resolved through mediation. As noted in response to
Question 8 above, 58% of the cases sent through our revised mediation
process have been resolved by that process. Because some appeals
resolve before the mediation process would begin and because the Court
only directs mediation where an appellant is represented by an
attorney, about 25% of the total number of appeals filed at the Court
are resolved through mediation.
A second measure of success is the fine tuning of issues that can
result from the mediation process, even when there is no resolution. We
have not figured out how to capture this in a statistical format, but
it does appear that the briefing of the issues is improving.
Do you know what percentage of cases that are remanded through
mediation return to the Court?
No, we do not keep any such statistics. Moreover, it would be
difficult to meaningfully track because, when a claim is remanded, the
claimant not only has a right to submit additional information that can
resolve the issue that had been on appeal, he or she also has a right
to raise new issues. For example, on remand, the higher rating sought
on appeal might be awarded, but the claimant might then believe the
newly submitted evidence supports an even higher rating or a different
effective date, which then results in another appeal to the Court, but
on a different set of facts and arguments.
Question 11. What is the percentage of cases for which VA asks for
an extension of time?
Response. Last year the Secretary submitted 12,404 requests for
extensions of time and the appellants submitted 3,441 requests.
However, we do not track the number of extensions per case, and some
cases may involve no requests for extension, while others involve
multiple requests. Unquestionably, requests for extensions are made in
a significant number of the appeals and add to the processing time.
Why do you think VA has a large number of requests for extensions
of time before the Court?
We do not track the reasons for the requests, but it is fair to
state that most of them are attributed to workload considerations and
difficulty in obtaining and copying the claims file. Resources and
training generally are at the root of such problems, but I defer to the
Secretary on this matter.
How would you suggest reducing that?
We are hopeful that electronic filing will speed-up matters. It is
our understanding that the Secretary is moving to electronic records
that should help with tracking, copying, shipping, and storing VA
claims files, which, in turn, should reduce the need for additional
time in locating and copying the file as the record is prepared for an
appeal. If staffing and training are issues--and I defer to the
Secretary and Board Chairman on this, but it does appear that they
might be--then additional staffing and training should help reduce the
need for more extensions.
Question 12. Does the Court track how many cases are remanded more
than once? If yes, does the Court track why these cases are remanded
more than once?
Response. No. Please see response to Question 10.
______
Response to Post-Hearing Questions Submitted by Hon. Richard Burr to
Hon. William P. Greene, Jr., Chief Judge, U.S. Court of Appeals for
Veterans Claims
Question 1. Would you please provide a list of the positions that
would be filled during fiscal year 2010 with the requested level of
funding?
Response. The Court's staff level for fiscal year 2010 increases
from 112 to 124 full-time employees. This increase contemplates the
possible creation of two additional judicial chambers, effective
December 31, 2009, as authorized by Congress. Each chambers would have
six employees: One Judge, one confidential assistant or secretary, and
four judicial law clerks.
Question 2. According to your budget request, the Court of Appeals
for Veterans Claims (CAVC) and the General Services Administration are
in the process of identifying additional space that could be used to
accommodate two additional judicial chambers.
A. What is the status of that effort?
Response. In January 2009, the Court sent a letter to our General
Services Administration (GSA) Customer Service Manager formalizing our
request for additional space. The Court has met several times with GSA
representatives to confirm our continuing need for our current space as
well as space for two additionally authorized Judges and chambers
staff. Because there is no available space in the building where the
Court is currently housed, GSA has created a needs assessment and has
promised to meet with Court representatives shortly. The Court and GSA
have designated what is described as a ``restricted delineated area''
for the additional space needs, which would be proximate to the
existing Court location. We anticipate that to keep all of the Judges
located at the existing Court location, one of the Court's operations
or administrative divisions would be relocated to this yet-to-be-
identified new location.
B. How much of the requested funds would be used to rent this
additional space?
Response. In November 2008, the Court requested that GSA provide an
estimate of rental costs, renovation/construction costs, and moving
costs for relocating some of the Court's staff and accommodating two
possible new Judges and their chambers. GSA estimated these costs as
follows:
(1) Rental and associated GSA add-ons................... $1,036,058.72
(2) Reimbursable work agreement for construction........ 726,470.15
(3) Moving Costs........................................ 250,000.00
--------------------------------------------------------
____________________________________________________
TOTAL............................................. $2,012,528.87
========================================================
____________________________________________________
Question 3. In recent years, the CAVC has taken several measures to
help deal with record levels of incoming cases, such as recalling
retired judges and implementing a mediation program.
A. What is the status of these efforts and what impact have they
had on the ability of the CAVC to provide timely decisions to veterans.
Response. The Court's new mediation program has been extremely
successful in bringing the parties together and facilitating mutually
agreed upon case resolution. The new program requirements assure that
counsel for the appellant and counsel for VA enter negotiations
prepared to discuss specific issues and that each has the authority to
bind their client. Since the inception of the Court's revised mediation
process, approximately 58% of the appeals where a mediation conference
has been scheduled ultimately result in the parties reaching an
agreement on a disposition. The Court is also hopeful that our new Case
Management/Electronic Case Filing System (CM/ECF), and concerted
efforts by all parties to reduce the motions for extensions of time,
will further assist us in handling expeditiously our growing caseload.
Further, because of the rising numbers of appeals to the Court,
there has been a need over the past three years to recall Judges who
have retired from active service. This effort is ongoing. These Judges
have performed substantial service and have assisted us in deciding
cases and acting on the many motions and procedural matters that come
before the Court. Their contribution has impacted favorably on the
ability of the active Judges to manage a heavy chambers caseload.
B. Do you anticipate continuing these efforts during fiscal year
2010? If so, would you please provide, to the extent possible, a
summary of the funding and staffing that would be necessary to continue
these efforts?
Response. The Court's enhanced mediation program, CM/ECF, and our
ongoing efforts to reduce the numbers of motions for extensions of time
are all critical to our efforts and will continue with no additional
costs or staffing anticipated. I will continue to monitor closely the
Court's caseload and, at the appropriate time, determine whether there
will be a need to recall retired Judges in fiscal year 2010. Crucial to
that determination will be tracking those pending cases where
development is nearing completion and referral to a Judge for decision
is imminent. The only funding associated with recall is the per diem
costs for those Judges who reside away from the National Capitol
Region.
Question 4. As noted in your budget request, the CAVC received $7
million during fiscal year 2009 for the advanced planning and design of
a courthouse.
A. What is the status of that effort?
Response. In April 2008, I forwarded to each Committee member a
copy of the GSA follow-on feasibility study for a Veterans Courthouse
and Justice Center. That study was ordered to determine the feasibility
of the Court remaining at its current location, necessarily displacing
other Federal tenants. The study concluded that to remain in the
current location would be the most costly option, and that the
preferred alternative would be to acquire Federal property for Federal
construction of a build-to-suit Courthouse. Thus, I recommended that
the Committee consider action to designate as the Courthouse site a
Senate parking lot located at North Capitol Street and Massachusetts
Avenue, and to pass legislation similar to that which authorized the
Federal construction of the Thurgood Marshall/Administrative Office of
the U.S. Courts Building. I have recently been informed by the Senate
Rules Committee Chairman that the Capitol Complex Master Plan does not
accommodate a Courthouse at that location, and I have not received any
indication of the Committee's support of this site. Therefore, the
Court is moving forward to work with GSA to identify other appropriate
Federal properties, and we are pursuing in particular locations at 49 L
Street, SE, and at 12th Street and Independence Avenue, SW.
B. Have any of those funds been expended? If so, for what purpose
were the funds used?
Response. None of the $7 million has been expended. The Court is
currently taking steps to transfer these funds to GSA for advanced
planning and architectural design. We look forward to the Committee's
support in obtaining the authorizations and funding for an appropriate
location.
Question 5. In the CAVC's budget request for fiscal year 2009, you
mentioned the possibility of appointing Magistrates to assist in
handling the CAVC's caseload.
A. What is the status of any efforts to authorize or appoint
Magistrates?
Response. No action has been taken to date to authorize or appoint
Magistrates. The success of the Court's mediation program and the other
innovations mentioned in response to Question 3 have afforded us
substantial assistance in meeting the challenges of our formidable
caseload. Therefore, we have not moved forward with any effort to add
magistrates to the Court's staff. The potential need for magistrates
will be reviewed annually before we prepare our budget submission.
B. How much, if any, of the funds requested for fiscal year 2010
would be used for this purpose?
Response. None.
Chairman Akaka. Thank you very much.
Mr. Terry.
STATEMENT OF THE HONORABLE JAMES P. TERRY, CHAIRMAN, BOARD OF
VETERANS' APPEALS, DEPARTMENT OF VETERANS AFFAIRS
Mr. Terry. Thank you, sir, and good morning. It is a
pleasure to be here today on behalf of the Board of Veterans'
Appeals to
provide information to you and the Members of the Committee on
the important issues that have been outlined in your letter of
invitation.
Turning first to the initial issue, how to mitigate the
delay in processing appeals through several targeted
approaches, we look first to our effort to increase effective
training at the Board, to establish meaningful performance
goals--and by that I mean the performance goals for both our
attorneys and our judges--and effective communication up and
down the Department between our Board, BVA and VHA and, of
course, to the extent consistent with our relative roles, with
the Court.
In looking at our staffing, sir, it is important that we
recognize the superb work of this Committee and also your House
counterpart in providing us with additional funding for staff
hiring over the past 3 years, and we greatly appreciate that.
It has been extremely significant. We have increased our FTE
total from 434 to 487.
Certainly, in order to help new staff achieve their full
potential, we have a comprehensive training plan in place, and
that is one that is led by a group of mentors. Certainly, it
develops young attorneys, and it enhances the judges' knowledge
of substantive areas of law.
Along with training, of course, our rigorous performance
goals further enhance our ability to serve our veterans in the
most positive way possible.
As you are well aware from our annual report to this
Committee, we have been increasing our productivity over the
last 5 years. In the 4 years that I have been there, we have
gone from 39,000 decisions issued to, last year, 43,757
decisions; and we have taken advantage of every communication
opportunity to reach out to those who share our responsibility
to deliver timely and accurate appellate decisions.
The Board fully supports--and it is important to know
that--VA's goal of increasing the use of paperless claims in
appeals processing. In fiscal year 2008 we rolled out our first
complete start-to-finish paperless appeal process. And we are
expanding that process with the help of BVA and actively
preparing to provide timely service to these claims which are
right now being processed through the Benefit Delivery and
Discharge Program, which is a critical program for those folks
coming back from both Iraq and Afghanistan. Their system is a
paperless process right now. And that system is being
integrated now through BVA and will be at the Board during the
course of the next 2 years.
You asked us, finally, sir, to address legislative and
policy recommendations which would be helpful. As a consequence
of recent changes in the law that provide for increased
opportunities for attorney representation, the time may be
ripe, Mr. Chairman, for shortening statutory and regulatory
response periods for purposes of expediting the processing of
claims and appeals without--and I stress without--taking any
rights or protections from the veteran.
This is at the heart of the Expedited Claims Adjudication
Initiative, which I will address in a moment. It is important
that we look at this, as well as enhanced videoconferencing,
rather than sending travel boards to each of the regional
offices. These are the types of things that can enhance and
promote more expeditious processing of claims.
We certainly promote those, and we ask your support in
giving us more flexibility in using more video hearings. We
have certainly found, sir, that there is no difference
whatsoever in the grant rate for someone who is in a room with
a judge as opposed to watching the judge on television and the
judge watching him from two big screens on different sides of
the world. But it enhances our ability to get that case out
more effectively and more timely.
In responding to your query concerning the relationship
between BVA and the Court and whether it should be modified, I
think it is important to note the high volume of cases before
each body, and I think that the relative difference in case
load is instructive. The Court last year saw 4,446 cases. We
saw more than 43,000--43,757, we decided. That is a significant
difference, and the resources that are required are very
different.
But it is important to note that we can best serve veterans
when we eliminate avoidable remands, and we do that by taking
due account of the rule of prejudicial error contained in 38
U.S.C. 7261.
As to material fact-finding made by the Board, appropriate
consideration must be given to the deferential clearly
erroneous standard of review provided in law. We have found
that this deferential standard of review ensures that the
responsibility for making the highly technical factual
determinations required in adjudicating complex medical
compensation cases is not removed from the statutorily-
appointed fact-finder and transferred to a judicial body.
Finally, I would like to mention just for a moment the ECA.
I mentioned to you that this is a pilot program. It began just
a little bit more than a week ago, sir, on February 2.
This program offers accelerated claims and appeals
processing for eligible claimants at four select regional
offices, and these are Nashville, TN, Seattle, WA, Lincoln, NE,
and Philadelphia, PA. We believe that this program will serve
as an excellent role model for a systemwide expedited claims
adjudication system after this trial period is concluded.
Thank you for the opportunity to testify this morning, Mr.
Chairman.
Thank you, Members of the Committee, for the opportunity to
be here and explain our programs. I would be delighted to
answer any questions.
[The prepared statement of Mr. Terry follows:]
Prepared Statement of James P. Terry, Chairman, Board of Veterans'
Appeals, U.S. Department of Veterans Affairs
Good morning, Mr. Chairman. It is a pleasure to be here today on
behalf of the Board of Veterans' Appeals (BVA or Board) to provide
information to you and the Members of the Committee on the important
issues outlined in your letter of invitation. Those three major issues
include (1) how best to mitigate the delay in processing appeals, (2)
what legislative or policy recommendations concerning the processing of
appeals we can share with the Committee, and (3) how we would describe
the relationship of the Board with the U.S. Court of Appeals for
Veterans Claims (CAVC or Court).
Turning to the first area, we attempt to mitigate the delay in
processing appeals through several targeted approaches--staffing,
training, performance goals, and communication. Key to meeting our
staffing needs has been the critical assistance provided by Congress
and the administration in providing additional funding for staff hiring
over the past three years, which has greatly enhanced the Board's
productivity. This has not only enabled the growth of our attorney
staff, but has led to a commensurate increase in the professionalism of
our administrative staff. In order to help new staff achieve their full
potential, the Board has a comprehensive training program. Each new
attorney is mentored by one of the Board's many experienced attorneys,
and substantive legal, medical, and decision-writing training is
provided for all attorneys in critical areas related to appeals
adjudication. Along with training, the Board's performance goals
further enhance our efficiency in decisionmaking. Each of our Veterans
Law Judges and attorneys is expected to meet specific minimum standards
of productivity and quality each year, and many usually far exceed
these goals.
The Board continues to experience improved productivity by our
attorneys and judges, and we expect to issue more than the 43,757
decisions we issued last year, which was more than 3,000 beyond the
number of cases received. We take advantage of every communication
opportunity to reach out to those who share our responsibility to
deliver speedy and accurate appellate decisions to the veteran
community. We have worked with your staff to clarify through
legislation, such as that passed last October, the best approach to
notifying veterans of the information and evidence that is expected of
them to help substantiate their claims. We are working with the
regional offices through our travel board trips and videoconferencing
to assist in the training of rating specialists and Decision Review
Officers. We have regular meetings with other VA staff for purposes of
sharing ideas on how to mitigate delays in the processing of claims and
appeals.
The Board has fully supported VA's goal of increasing the use of
paperless claims and appeals processing, and in Fiscal Year 2008
completed its first paperless appeal. As VA expands the paperless
processing of Benefit Delivery at Discharge (BDD) claims, the Board is
actively preparing to provide timely review of these claims if they
mature into appeals. We are planning to train additional judges and
attorneys to handle paperless appeals.
In considering legislative and policy recommendations, we must
remember that the system of adjudicating claims and appeals is designed
to give the benefit of the doubt to all veterans. This means that times
allocated for submission of documents and moving to the next step in
the claims and appeals process are elongated for the benefit of the
veteran.
As a consequence of recent changes in the law that provide for
increased opportunities for attorney representation at the regional
office level, the time may be right for shortening certain statutory
and regulatory response periods for purposes of expediting the
processing of claims and appeals without taking away rights or
protections from veterans. This is at the heart of the Expedited Claims
Adjudication Initiative, which I will address in a moment.
Another change the Committee may want to consider is allowing the
Board to determine whether a video-conference hearing vice an in-person
Travel Board hearing could expedite resolution of veterans' appeals in
appropriate circumstances. The success rate of appeals for veterans who
choose video conference hearings is exactly the same as those who
choose an in-person hearing before the Board. Changing the law to allow
the Board to offer veterans the option of video-conference hearings
would greatly enhance the use of the Board's resources and expedite the
processing of appeals without affecting veterans' rights. More
importantly, this change would benefit veterans who live in areas of
the country where the volume of hearing requests does not warrant Board
travel to a regional office to conduct hearings more than once or twice
a year by enabling them to receive much more timely hearings. For the
Board, not only could travel expenses be reduced, but decreasing the
time Veterans Law Judges spend on travel boards would also yield
additional time to devote to deciding other appeals.
In responding to your query concerning the relationship between the
Board and the CAVC, a discussion of the volume of cases before each
body is instructive. For example, the Board received more than 39,000
cases in 2008 and decided 43,757, making a significant dent in its
backlog. The Court received 4,128 new cases in 2008, and decided 4,446,
again making a significant impact on its backlog. Like the Department,
the Court has been aided by the Committee's support for additional
resources.
The Board is obligated to provide reasons or bases in support of
all material findings of fact and conclusions in its decisions. (38
U.S.C. Sec. 7104(d)) The Court is not permitted to substitute its
judgment for that of the Board, even if the Court might not have
reached the same factual determinations, if there is a ``plausible''
basis in the record for the Board to make such determinations. This
deferential standard of review ensures that the Board's responsibility
for evaluating the credibility, weight, and probative value of evidence
necessary to make the highly technical factual determinations required
in adjudicating complex medical compensation cases is not changed.
Under no circumstances should it be switched from the statutorily
appointed fact finder to an appellate court one step removed from the
fact-finding process. When this standard of review is not properly
applied, cases may be unnecessarily remanded for further amplification
of the reasons and bases in support of the same decision previously
reached.
Finally, I would like to update you on the Expedited Claims
Adjudication Initiative (ECA). This initiative, published as a final
rule in the Federal Register in November 2008, is a two-year pilot
program that is scheduled to begin on February 2, 2009. The program
offers accelerated claims and appeals processing for eligible claimants
at four select VA Regional Offices: Nashville, Seattle, Lincoln, and
Philadelphia. The goal of the initiative is to determine whether VA can
expedite the claims and appeals process by obtaining waivers from
claimants and their representatives of the generally unused portions of
certain statutory and regulatory response periods, and by pre-screening
cases at the Board to determine the adequacy of the record for
appellate review.
Participation in this initiative will be strictly voluntary, and
open to claimants in the jurisdictions of the four trial sites who are
represented by a recognized Veterans Service Organization, attorney or
agent at the time of electing to participate in the initiative. A
claimant's decision to participate in the ECA can be withdrawn at any
time, with no penalty, and if a claimant decides to withdraw the case
will continue to be processed by the RO under normal procedures. We
believe the ECA will serve as an excellent model for a system-wide
expedited claims adjudication system after the trial period has
concluded.
Thank you for listening this morning and I would be happy to answer
any questions that you, Mr. Chairman, or the members, may have.
______
Response to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka to
James P. Terry, Chairman, Board of Veterans' Appeals, U.S. Department
of Veterans Affairs
Question 1. How does the Board measure quality in its
decisionmaking?
Response. In order to measure the quality of its decisionmaking,
the Board of Veterans' Appeals (Board) has established a Quality Review
(QR) office. The QR staff is comprised of four staff attorneys who are
competitively selected from the Board's counsel ranks, with one of the
attorneys designated as the team leader. Counsel serve in the office
for periods of 12 to 18 months. No Veterans Law Judges (VLJ)
participate in the process in order to ensure the independence and
integrity of the QR system, and to conform to generally accepted
auditing principles. The four assigned Board counsel review and
evaluate a random sample of signed but undispatched Board decisions.
This process enables errors to be identified and corrected prior to
dispatch, as well as to collect data used to measure the overall
quality of the Board's decisions.
QR office reviews a statistically valid random sampling of
decisions from each of the Board's four decision teams; 1 in every 20
(5 percent) of original appeals (appeals that have not yet been before
the U.S. Court of Appeals for Veterans Claims (Court or CAVC)), and 1
in every 10 (10 percent) of Court remanded appeals. The data from these
two samples are then combined into a single result using an
appropriately weighted formula. Appeals are selected automatically by
the Board's case tracking system.
The focus in the Board's QR process is not to ``second guess'' but
rather to identify areas of strength and weakness, to identify trends
in performance and variations in quality, to establish realistic goals
for improvement, and to devise appropriate training to meet those
goals. Quality is defined as a decision that (1) comports with existing
legal authorities, (2) reflects sound legal research and analysis, (3)
is supported by a plausible basis in the record, and (4) meets general
requirements for good legal writing such that it clearly explains to
the appellant the precise basis for the decision reached by the Board,
as well as responds to all arguments advanced by the claimant.
Any deficiency identified in the quality of a Board decision is
recorded as an ``error.'' Errors may be substantive or non-substantive.
A substantive error is a deficiency in a decision that would be
expected to result in (1) a reversal by the CAVC, (2) a remand by the
CAVC, or (3) a change in the outcome, including constituting a clear
and unmistakable error (i.e., an outcome determinative error). This
type of error counts against the Board's accuracy goal. A plausible
difference of opinion as to the outcome of an appeal, differing
interpretations of the law in the absence of controlling authority, and
the assessment of the weight and credibility of evidence are matters
related to the exercise of adjudicative judgment and ordinarily do not
fall within the definition of substantive error.
The critical areas where a deficiency in a decision would
constitute a substantive error can be categorized as follows:
(1) Issues: Not all issues explicit or inferred from the record
addressed; inaccurate issue(s) set forth on title page;
(2) Evidence (Findings of Fact): Pertinent or favorable evidence
not accounted for; material finding not supported by evidence; material
misstatement of fact;
(3) Application of Legal Authority (Conclusions of Law):
Controlling case law, statute, regulation, VA General Counsel precedent
opinion, or instruction of the Secretary misapplied or not applied;
(4) Reasons and Bases: Conclusory discussion or essential
decisional elements not present; internal inconsistencies; relevant
theory of entitlement not addressed; or failure to address an argument
advanced by the claimant; and
(5) Due Process: Prejudicial failure of procedural due process;
jurisdictional error; procedural deficiency related to representation,
request for a hearing, or the submission and consideration of new
evidence; failure to enforce compliance with remand directives; or
noncompliance with the Veterans Claims Assistance Act of 2000 (VCAA)
(e.g., failure of the duty to notify or the duty to assist).
While non-substantive errors do not count for purposes of
calculating the Board's deficiency-free quality rate, the QR staff
reviews decisions for non-substantive errors. A non-substantive error
is a deficiency that would not be expected to result in a remand or
reversal by the CAVC and is not otherwise outcome determinative, but
nevertheless is something that should be corrected prior to the
issuance of the decisions. Some examples of non-substantive errors
include format errors; failure to comply with BVA Chairman's memoranda,
directives or handbooks relating to internal procedure, format and
style conventions; mistakes in reporting the claim number, docket
number or service dates; patterns of misspellings or other
typographical or grammatical errors, including the misspelling of the
Veteran's name; misstatement of non-material facts; and discussions
that, although legally correct, could be bolstered by citation to
additional governing legal authority.
If a substantive error is identified during QR's review an
``exception'' memorandum is prepared and the case is forwarded to both
the assigned VLJ and the Decision Team Deputy Vice Chairman (DVC) prior
to dispatch. If the VLJ or DVC disagree with the assigned exception,
they can appeal that determination to the Chief Counsel for Policy and
Procedure for review and final determination. If the Chief Counsel
agrees that the exception was charged in error, it is removed from the
QR exception database. If not, the charged exception remains without
any recourse for further appeal. As a matter of practice, very few
charged exceptions are appealed, and even fewer are overturned.
The information that is collected from the review is tabulated to
produce the Board's deficiency-free rate. While a case may contain more
than one charged exception, the entire decision is considered to be in
error for purposes of calculating the error rate based on the finding
of only one substantive error. The Board's quality goal for fiscal year
(FY) 2009 is 92 percent. As of January 30, 2009, the deficiency-free
rate for this fiscal year is 94.4 percent for original appeals and 99.2
percent for Court-remanded appeals, for a weighted combined score--due
to the differing percentages of each types of cases selected for
review--of 95.2 percent.
The Board goes to great lengths to ensure that appeals are handled
correctly the first time, including mentoring and developing new
counsel and judges, periodic training for all professional staff on new
and challenging areas of Veterans' law, and substantive training in
both Veterans' law and legal writing. Additionally, the Board engages
in cooperative training endeavors with the Office of General Counsel
(OGC), the Veterans Benefits Administration (VBA), and the Veterans
Health Administration (VHA) for purposes of improving the competence of
adjudicators and medical clinicians throughout the Department of
Veterans Affairs (VA) system. Finally, the Board tracks the reasons for
each Court remand in order to identify any trends or problems that
require correction by way of training.
Question 2. How does the Board calculate its error rate? Please
provide appropriate documentation.
Response. In addition to the information provided above the
following is noted.
The Government Accountability Office (GAO) report, Veteran's
Benefits: Quality Assurance for Disability Claims and Appeals
Processing Can Be Further Improved, GAO-02-806 (August 2002), found
that the Board was understating the accuracy rate of its decisions
because its accuracy calculations included certain deficiencies that
were not ``substantive''. GAO recommended that the Board revise its
quality assurance program so that the calculation of accuracy rates
would take into account only substantive deficiencies. Following the
issuance of this report, the Board took action to remove formatting
errors (misspellings, incorrect claims number, etc.) from the accuracy
calculation.
GAO in a follow up report, VA Disability Benefits: Board of
Veterans' Appeals Has Made Improvements in Quality Assurance, but
Challenges Remain for VA in Assuring Consistency, GAO-05-655T (May
2005), found the Board had not revised its formula for calculating
accuracy rates in order to properly weight the combined quality review
results into a single score for original Board decisions and cases
remanded by the CAVC. Following the issuance of this report, the Board
worked with GAO to modify the formula used to calculate its accuracy
rate when combining the original and CAVC remand data. Making the
correction to the formula for combining the original and CAVC remand QR
case samples made only a very slight change (the deficiency free rate
for a sample of data changed from an unweighted deficiency free rate of
92.797 percent to a weighted deficiency free rate of 92.708 percent).
Question 3. You provided testimony that the Court remanded 35
percent of cases that reached it last year. Was this calculation by
calendar or fiscal year? Please provide appropriate documentation.
Response. The calculation, as provided by the CAVC FY 2008 annual
report was for the fiscal year. A copy of CAVC's annual statistics is
attached. The following numbers were reported FY 2008 CAVC annual
report: 4446 cases decided in FY 2008 (which includes 62 petitions for
extraordinary relief). Excluding the petitions for extraordinary
relief, the CAVC decided 4384 appeals in FY 2008. Of those 4384 cases,
603 were affirmed or dismissed in part and reversed or vacated and
remanded in part, and 559 were reversed or vacated and remanded. That
represents 1162 decisions remanded (at least in part) by order of the
CAVC. That translates into a remand rate for cases (of at least one
issue in a multi-issue case) reviewed by a CAVC judge of 26.5 percent
(1162 out of 4384). Among the 4384 cases reported as decided by the
Court, 1625 were the subject of a joint or unopposed motion for remand
of the parties that was not reviewed or ordered by a judge but was done
under the authority of the Clerk of Court. The joint motions represent
37.1 percent of the Court's reported workload, (1625 out of 4384). The
35 percent referred to is these 1625 decisions, reported as
``remanded'' in the CAVC statistics.
Question 4. Do you agree that eliminating the Statement of the Case
and making the Decision Review Officer review mandatory might alleviate
some of the backlog of cases on appeal at the Board?
Response. VA's statutory requirement to issue a Statement of the
Case (SOC) originated before Congress enacted what is now 38 U.S.C.
Sec. 5104(b) in 1989, which requires a regional office to provide the
claimant with a statement of the reasons for a decision and a summary
of the evidence considered by VA. Prior to this statute, regional
office decisions routinely lacked specificity. Arguably, the
information provided by the SOC may not only be unnecessary, but also
may impact VBA's ability to process appeals expeditiously. The purpose
of the SOC was to ensure that the claimant received proper notice of
the bases for an adverse decision so that they could make an informed
decision on whether to pursue the appeal to the Board and to assist in
formulating such an appeal. If the information that is now contained in
the SOC could be provided just as effectively in another vehicle, such
as a rating decision, it seems that the purpose of the statute may be
equally well served, and may expedite the process without compromising
appellants' rights.
The necessity of issuing one or more Supplemental Statements of the
Case (SSOC), covering evidence received after the issuance of the SOC,
is a procedure required by VA regulations and, therefore, could be
changed without legislative action. While the elimination of the SSOC
would certainly save time, it would also eliminate an appellant's right
to such notice. The decision as to where to strike a proper balance as
to the advisability of such a change would be best made by VA after
consultation with our stakeholders.
As far as instituting a mandatory review of all appeals by a local
decision review officer (DRO), I am unsure how this would save time or
reduce the number of appeals coming to the Board. Significant new
resources would be required in order to implement this suggestion.
While increased DRO review may resolve some additional appeals it would
also add more time to an already lengthy process. As there is no
disincentive for an appellant to pursue their appeal, an unfavorable
DRO decision would likely have no effect on whether the appellant
chooses to take his or her case to the Board. Hence, whether this
change would have an ameliorative effect on the process is uncertain.
Question 5. Mr. Baker expresses the view that the Appeals
Management Center is succeeding in resolving only a tiny fraction of
VA's appellate workload, and that if remands were returned to Regional
Offices rather than the AMC, local employees would inherently be held
to higher accountability standards. What is your view on this point?
Response. The Appeals Management Center (AMC) was established
solely to process appeals remanded from the Board. All staff members
receive specialized training and are dedicated to processing these
complex claims. One of the primary reasons for locating the AMC in
Washington, DC, was to maintain a close physical proximity to the
Board, which has improved communications and facilitated the
identification and resolution of issues.
At the end of FY 2007, the AMC had 97 full-time employees. Staffing
increased to 114 full time employees by the end of FY 2008. The AMC
currently has 121
employees.
Appeals are remanded for a number of reasons, many which are not
the result of incorrect or deficient processing at the regional
offices. However, appeals that are remanded for reasons that should
have been rectified prior to certification to the Board are returned to
the regional office. This policy of returning ``avoidable remands''
increases accountability by requiring claims prematurely certified to
the Board to be corrected by the regional office.
VBA has established a performance management system that ensures
accountability for performance. Regional office directors, as well as
the AMC Director, are responsible for meeting monthly and annual
performance targets specific to quality, timeliness, and completed
claims. VBA has also established a national avoidable-remand-rate
target for all regional offices. Standardized national performance
plans ensure claims processors at all VBA facilities are accountable
for individual
performance.
Question 6. Mr. Stichman's testimony states that of the 23,178
Board decisions that the Court individually assessed between Fiscal
Years 1995 and 2008, in 76.4 percent of them the Court set-aside the
Board decision and either remanded the claim to the Board for further
proceedings or ordered the Board to award the benefits it had
previously denied. Are these figures accurate and what explains this
record?
Response. The Board carefully examined the CAVC annual reports
covering the period from FY 1998 through FY 2008, available on the
CAVC's Web site. The annual reports for the years prior to 1998 are not
posted on the Web site. According to the available reports, the total
cases decided by CAVC for the period FY 1998 through FY 2008 amounts to
more than 30,000 cases, which does not comport with the 23,178 figure
for FY 1995 through FY 2008.
In reviewing the CAVA reports we found the FY 2008 CAVC report
contained the following numbers: 4446 cases decided in FY 2008 (which
includes 62 petitions for extraordinary relief). Excluding the
petitions for extraordinary relief, the CAVC decided 4384 appeals in FY
2008. Of those 4384 cases, 603 were affirmed or dismissed in part and
reversed or vacated and remanded in part, and 559 were reversed or
vacated and remanded. That represents 1162 decisions (which include
multi-issue cases with at least one remanded issue) remanded (at least
in part) by order of the CAVC, translating into a remand rate of 26.5
percent (1162 out of 4384) for cases reviewed by a CAVC judge. Among
the 4384 cases reported as decided by the Court, 1625 were the subject
of a joint or unopposed motion for remand of the parties that was not
reviewed or ordered by a judge but was done under the authority of the
Clerk of Court. The joint motions represent 37.1 percent of the Court's
reported workload (1625 out of 4384).
While some CAVC remands are the result of Board error, many are
not. Outright reversals of Board decisions by the Court that result in
an immediate award of benefits are very uncommon. For example, in FY
2008, the Board received only 14 pure reversals from the CAVC.
Frequently, Court remands are based on changes in the law that occurred
following the issuance of the Board's decision. Because of the pro-
claimant approach in Veterans' benefits law, CAVC decisions are almost
always applied retroactively to all cases currently pending before the
Court. This often results in large numbers of remands for decisions
which were correct under the law in effect at the time the Board made
the decision. Some remands are generated because an issue is raised for
the first time on appeal, and the CAVC will remand to ensure that
administrative review is fully exhausted. Some remands occur for
reasons unrelated to the merits of the Board's decision. Other remands
are based on a difference in judgment between the reviewing judge at
the CAVC and the deciding VLJ at the Board as to the interpretation of
the law, whether the reasons or bases for the Board decision were
adequately explained, or whether all due process was met. In addition,
almost 60 percent of remands are never seen by a CAVC judge, but
represent settlement actions by the parties involved in the case to
dispose of the appeal, either in whole or in part. Additionally, given
the delays in the system, the CAVC is reviewing BVA decisions that may
have been issued several years ago, and therefore do not necessarily
reflect the current level of quality in adjudication. Finally, it is
important to note that many remands from the CAVC do not result in
additional benefits being granted to the claimant and the correction to
the Board's initial decision is simply a more complete explanation for
the prior denial or the correction of a non-substantive procedural
defect.
Question 7. Mr. Baker claims the Secretary's failure to admit error
or agree to remand during the Court's mediation process or offer to
settle many cases in which the Court requests oral argument adds to the
backlog of the claims process rather than reducing it. Do you agree?
Response. The record shows that the opposite is true. For example,
of the 4,446 decisions issued by the Court in FY 2008, 1,625 (37.1
percent) of them were decided as a result of a Joint Motion for Remand
promulgated by the claimant or their representative with the
acquiescence of the Secretary. Prior years have yielded similar
statistics (many cases were remanded in the years following the passage
of the VCAA in 2000 due to multiple and at times conflicting court
interpretations of the requirements of that Act that were issued
following the date of the Board's decisions being reviewed) though the
number in 2008 was the highest in many years. Some Joint Motions
represent the Secretary's admission of error and agreement to remand,
whereas others occur for reasons unrelated to the merits of the Board's
decision.
It is important to note that when the Court allows a Joint Motion
for Remand it is done with limited, if any, scrutiny by a Judge of the
Court. In most cases, the appellant is given a false sense of hope that
they have won the day without actually gaining any tangible VA benefit,
monetary or otherwise. In turn, the Board and VBA adjudicators are left
without the guidance that could have been gained had a Judge of the
Court fully scrutinized the case and offered an opinion as to how the
law should be applied.
Speaking directly to the value of the Court's mediation process,
the concept of mediation can be helpful in a legal forum where a
tangible benefit may be gained by both parties through compromise. In
the case of a Veteran's disability claim, at least in theory, the
tangible benefit to the Veteran could be the grant of service
connection or of an increased disability rating, while the
reciprocating benefit to the Government could be the contraction of the
adjudication process. In reality, however, Veterans' benefits law does
not lend itself so cleanly to such a process. In the case of a claim
for VA benefits, either the evidence is in equipoise or approaching
equipoise, thus allowing the grant of the benefit, or it is not. This
is not to say that there is no room for discussions between the
opposing parties before the Court that could potentially reduce the
number of issues that need to be addressed, and in turn, the claims
processing time. However, there is a legitimate question presented as
to what the value is of having a mediation process as part of the
Court's adversarial litigation process, especially given that the
entire adjudication and appeals process before VA is informal and
nonadversarial. One of the benefits of litigation is that it helps
define and narrow the issues in dispute, something that oftentimes does
not happen in a Joint Motion for Remand that results from the Court's
mediation process. Accordingly, the effect of the mediation program in
leading to Joint Motions for Remand is to increase the processing time,
usually without the award of an actual benefit, thus adding to the
claims backlog.
Question 8. Mr. Cohen's testimony makes the case that, when
comparing BVA to the Social Security Administration, although Congress
has provided more staffing to the Board in recent years, the Board
still requires more staff attorneys and Veterans Law Judges. Do you
agree?
Response. The Committee has been very supportive of the Board and
its mission. Over the past 2 years, the Congress has increased our full
time employee (FTE) allocation by 52, and the Secretary has increased
our total VLJ authorization by 4, from 56 to 60. In the last fiscal
year, for example, the Board issued a total of 43,757 decisions on
appeal and VLJs heard a total of 10,562 hearings (the highest number
ever). The number of cases decided on appeal exceeded the number of
cases received on the Board's docket by more than 3,500. Our attorneys
have more than succeeded in meeting their goals for productivity and
many have significantly exceeded these goals. This has also been true
of our VLJs. Equally important, the Board's cycle time, or the average
time it takes to decide a case once it is received at the Board,
subtracting the period of time the case is being reviewed by a VSO
representative, now stands at 116 days, the lowest it has been in
years. Our backlog of cases on appeal, now less than 16,000 in a total
Veterans benefit system that adjudicates more than 850,000 claims a
year, is the lowest it has been in the nearly 4 years. I believe, with
the constraints of the Board's current physical plant and considering
the Board's increased productivity, that the current complement of
VLJs, staff attorneys and support personnel is adequate.
Question 9. Should veterans law judges be required to undergo
annual recertification?
Response. VLJs, once appointed, are subject by statute to
recertification based on performance, see 38 U.S.C. 7101A(c). Since
1995, we have evaluated our VLJs' performance annually and the
determination whether to recertify each VLJ is made by a peer review
panel that includes the Chairman. 38 U.S.C. Sec. 7101A(a)(1) provides
the manner in which VLJs are to be selected. The Chairman of the Board
makes a recommendation of a prospective judge or judges to the
Secretary. This recommendation is made based on the review and ranking
of candidates by both a screening panel and an interview panel using
competitive procedures to select the best qualified candidates. The
Secretary then makes a selection for appointment from among those
within the best qualified array, and transmits his selection to the
President for approval. Upon approval by the President, the selectee is
appointed to the position of VLJ and is then sworn in by the Secretary.
Question 10. You mentioned performance goals as a way to mitigate
delay. According to Mr. Baker's testimony, only .72 percent of cases
are being reviewed under the current STAR system. Do you feel that is a
good way to measure quality performance? Is there another method you
are implementing to measure performance?
Response. VBA conducts national quality reviews of a statistically
valid random sampling of work completed by regional offices through the
systematic technical accuracy review (STAR) system. The STAR system is
used by the VBA for purposes of reviewing the accuracy of its rating
and non-rating related work across regional offices. VBA also requires
quality reviews of a sampling of work completed by individual claims
processors for performance evaluation purposes at all regional offices.
Although the Board does not use the STAR system the Board has its
own quality review system. Under the Board's QR system, a randomly
selected, statistically significant sampling of all Board decisions are
reviewed by the Board's QR office before they are issued. Any
deficiencies in quality noted are brought to the attention of the
deciding VLJ for voluntary correction or explanation. The Board's
decisional accuracy rate is calculated based upon the percentage of
cases with errors that would be expected to result in a remand or
reversal from the Court. Through the end of December 2008, the Board's
overall accuracy rate for FY 2009 is 95.2 percent, comparable with the
94.8 percent error free decision rate for all of FY 2008.
Additionally, the Board has performance evaluation and goals
systems that are used for purposes of assessing its professional staff
and establishing performance goals in order to mitigate delay.
Performance evaluation at the Board is based upon an assessment of each
VLJ's or staff counsel's success in meeting or exceeding the
established standards in a variety of job related elements. For both
positions these include: legal writing and analysis, decision
timeliness, and decision productivity, all of which are considered
critical.
The draft decisions prepared by counsel is reviewed by a VLJ. The
VLJ reviews the draft and then decides the appeal based on his or her
careful review of the entire evidentiary record and applicable laws and
regulations. The VLJ also evaluates the quality and timeliness of each
draft decision submitted by counsel.
Question 11. Do you believe that there would be value in allowing
counsel for veterans to contact BVA adjudicators on an informal basis
in order to improve communication and possibly resolve procedural
matters, clarify and narrow the issues on appeal, avoid needless
remands and thus, speed the resolution of appeals and promote decision-
making accuracy?
Response. By statute, decisions of the Board shall be based on the
entire record in the proceedings and upon consideration of all evidence
and material of record and applicable provisions of law and regulation,
38 U.S.C. Sec. 7104(a). The only provision of law that provides for a
discussion about a particular case between a VLJ and a Veteran and
their representative is the opportunity provided for a hearing before
the Board, see 38 U.S.C. Sec. 7107(b). Related to this provision, a
pre-hearing conference may be arranged for limited purposes, such as
clarifying the issues to be considered at a hearing on appeal,
accepting new evidence, discussing the length of argument, or taking
other steps to facilitate the scheduled hearing so that the hearing
will be efficient and productive, see 38 CFR Sec. 20.708.
The Board does not believe that there would be any value in
allowing counsel for Veterans to contact VLJs on an informal basis to
discuss aspects of a pending appeal before the Board. Such discussions
would not be documented in the formal record, and thus, would not be
subject to future review. Hearings are a unique forum for open
discussion with a VLJ, and all parties are welcome to request a hearing
in a case. Since the early 1990s, the Board's practice has been to
transcribe all Board hearings and a copy of that transcript is
associated with the Veteran's claims file, thus, making it a part of
the permanent record. If the Board were to allow private counsel to
contact VLJs directly regarding a particular case, there would be no
objective documentation of that discussion, which could lead to
questions down the road in terms of why a Judge took a particular
action in a case. Additionally, all Veteran's representatives are
welcome to present the Board with written submissions for a particular
case. This is actually the most effective way that the Board can
address the different arguments, because the arguments are documented
in the record. Moreover, as a practical matter it would be potentially
quite disruptive for VLJs (and for case management) if VLJs were to
field phone calls from private counsel about cases that they may or may
not currently have before them, especially given the large number of
appeals handled by each VLJ per year that totals in the many hundreds
or more. To the extent that representatives have questions about a case
that are related to basic things such as verification of evidence
submissions at the Board, those questions can be easily handled by
communication with Board administrative staff.
Question 12. As the result of the Court's electronic filing
procedures, VA is now preparing a compact disc which contains all of
the documents in the paper C-file. It does not make any sense that once
a file is in an electronic format, to use the paper file for subsequent
actions on the claim. Does VBA have a plan to use the electronic file
to decide court remands?
Response. VA is moving forward with the development and use of an
electronic claims file, and the Board fully supports VBA's paperless
delivery of Veterans benefits initiative. In the current environment,
however, the abandonment of the traditional paper claims file in
subsequent actions on the claim in favor of the exclusive use of the
compact disc prepared for Court purposes would not be useful. The Court
considers its appeals based upon a record that has been closed after
the issuance of the Board's decision under consideration. By
definition, a ``closed record'' accepts no further evidence. However,
documents are being added to the administrative record throughout the
time from the Board's decision until the case is decided at the CAVC--
often years. If the Court remands the case, the record before the Board
is reopened to permit submission of additional evidence generally in
the form of paper documents, which would be added to the existing
claims file. Hence, the disc prepared by OGC contains only a snapshot
of the record at a certain point in time, and it constitutes an
incomplete copy of the full record. In contrast to the electronic
filing procedures used at the Court, the system under development does
not contemplate the use of compact discs. Rather, in the VBA's
paperless initiative, the Veteran's claim file will reside in a web-
based central server that would allows for the multi-sourced submission
and acceptance of evidence and the filing of all adjudication
documents, with simultaneous access by multiple parties to the claims
record. In 2008, the Board issued its first such paperless appeal
decision using VBA's current document repository, Virtual VA. This
year, we are in the process of working toward an expansion of that
concept in conjunction with the VA wide initiative.
The Board is keeping in close communication with representatives
from VBA's Office of Business Process Integration Office (OBPI), which
is leading the effort to design and build a comprehensive paperless
process. As VBA's paperless initiative expands, and new technologies
and processes emerge, we are confident that we will proceed in lockstep
with one another.
Question 13. You indicated your opposition to providing the Board
with authority to issue precedential decisions because of the large
volume of decisions. However such authority would not necessarily
require that every decision of the Board be precedential. Most cases
decided by the U.S. Court of Appeals for Veterans Claims are not
precedential. In some cases, it appears that providing a precedential
decision could have value in avoiding inconsistent adjudications.
An example of a case which might be appropriate for a Board
precedential decision is case number 0420721, docket Number 03-05-747
where the Board found that Da Nang Harbor is well sheltered and
surrounded on three sides by the shoreline of Vietnam. A map submitted
by the veteran and his representative indicates that the harbor is
nearly surrounded by land and that the entire harbor is located within
the territorial boundaries of Vietnam . . . As such, given the location
of the harbor is within the territorial boundaries of Vietnam . . . As
such, given the location of the harbor as being surrounded by the land
on three sides and the evidence that the harbor is within the territory
of Vietnam, and resolving all doubt in the veteran's favor, the Board
finds that Da Nang Harbor is an inland waterway for purpose of the
regulation. While the legal import of the geography of the Da Nang
Harbor is based upon a specific factual determination, it would not be
expected to change significantly during the time relevant to any claim
seeking service connection for a disability related to service on an
in-land waterway of Vietnam during the Vietnam Era.
Please explain why the Board should not have authority to make such
a determination as a precedential decision.
Response. There are several reasons why I believe it is inadvisable
to provide the Board with the authority to issue precedential
decisions, even in selected cases. Among these reasons is the enormous
volume of decisions issued by the Board each year. Deciding which of
these appeals would be appropriate for a precedential decision (and
would therefore be sent to a panel for resolution) would involve
prescreening all appeals--a process that would be extremely labor
intensive and divert resources from deciding other appeals. In
addition, most BVA decisions are highly fact specific. While there are
exceptions, a broad series of cases with a static common fact pattern
is a rarity. Most cases present varying and unique factual and forensic
medical evidence, the need for individual credibility determinations,
and specific distinctions in the applicable law. Further, such a change
is unnecessary, as the Board is already bound by a variety of other
precedential authorities--the precedential decisions of our reviewing
courts, the precedential opinions of the General Counsel and the
Secretary's regulations. In this context, precedential decisions by the
Board would likely be ephemeral in nature and, in my opinion, would
further complicate, rather than simplify, the adjudication process.
The example that you provided, a Board decision holding that Da
Nang Harbor was an inland waterway, was a very atypical decision. Our
recent review revealed that only a handful of BVA decisions (i.e., 4 or
5), all issued several years ago and prior to the issuance of clear
court precedent, reached such a conclusion. The overwhelming majority
of Board decisions on that issue held otherwise. Hence, while these few
decisions were not necessarily erroneous in the absence of clear
regulatory guidance on the subject, they are not representative of the
Board's approach to the issue. Under these circumstances, it would be
highly unlikely that the example provided would be designated as a
precedential decision, even if we had the authority to so. In my
opinion, a policy decision of this nature and impact would most
appropriately be made by means of a regulation promulgated by the
Secretary defining what is considered to be an ``inland waterway'' in
this context. The regulatory process would provide the opportunity for
public comment and would also permit judicial review of the regulation,
pursuant to the Administrative Procedures Act.
Question 14. Some of the common errors identified by Judge Kasold
as resulting in remands from the Court are failure to obtain medical
examinations and opinions and the failure to obtain documents and other
evidence. During Committee oversight visits, a frequent finding is the
failure of VA regional offices to obtain medical examinations and
opinions before denying a claim for service connection. Does the
statute need to be amended to require a medical examination or opinion
before denying an original claim for service-connection? Please
explain.
Response. Based on information obtained from Court remands, the
Board's QR system, and VBA's STAR system, the Board agrees that the
Department has been experiencing some challenges in applying the
requirements of the VCAA and evolving case law in determining when a
medical examination or opinion is required to be provided to a claimant
for service connection claims. In deciding whether a medical
examination or opinion must be provided, the Board is required to
provide adequate reasons and bases in support of the determination
made, see 38 U.S.C. Sec. 7104(d)(1); see also Duenas v. Principi, 18
Vet. App. 512 (2004) (when deciding whether to provide a claimant with
a medical examination, the Board is required to provide a written
statement of the reasons or bases for its conclusion). This discussion
must include consideration of the elements contained in 38 U.S.C.
Sec. 5103A(d) and 38 CFR Sec. 3.159(c)(4)(i). In those cases where the
Board makes a determination that a VA examination or opinion is not
necessary to decide a service-connection claim, the Board's decision
must include a discussion that fully sets forth the reasons and bases
in support of the decision reached by the Board.
Under the VCAA, when a Veteran submits a substantially complete
claim, VA is obligated to request not only a VA examination, but also a
medical opinion, if either or both are required to fairly decide the
claim. The test factors that are for consideration in determining
whether an examination and/or opinion need to be obtained are as
follows:
(1) Competent evidence of a current disability, or persistent or
recurrent symptoms of a disability;
(2) Evidence establishing that an event, injury, or disease
occurred in service or establishing certain diseases manifesting during
an applicable presumptive period for which the claimant qualifies;
(3) An indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the Veteran's service
or with another service-connected disability; and
(4) There is insufficient competent medical evidence already of
record for the Secretary to make a decision on the claim.
38 U.S.C.A. Sec. 5103A(d)(2), 38 CFR Sec. 3.159(c)(4)(i).
In McLendon v. Nicholson, 20 Vet. App. 79 (2006), CAVC discussed
the steps required to be taken in determining whether a VA examination
is necessary prior to final adjudication of a claim. The Court in
McLendon observed that the third prong, which requires that the
evidence of record ``indicates'' that the claimed disability or
symptoms ``may be'' associated with the Veteran's service or with
another service-connected disability, has a low threshold. McLendon, 20
Vet. App. at 83. The types of evidence that ``indicate'' that a current
disability ``may be associated'' with military service include things
such as medical evidence that suggests a nexus but is too equivocal or
lacking in specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or other symptoms
capable of lay observation. For example, a Veteran who was a
paratrooper during Vietnam and has a current diagnosis of arthritis of
the knees, which he indicates is due to multiple in-service jumps, is
sufficient to meet the third prong.
Based on information derived from Court remands and the Board's QR
database, the Board has identified a weakness in its decisionmaking
concerning determinations, including defects in the explanations
provided in support of such determinations, as to whether or not an
examination or medical opinion is required to be provided,
predominantly for service connection cases, for purposes of satisfying
the VCAA duty to assist. In response, the Board has addressed this
problem by way of targeted training, including QR Tips memoranda, Grand
Rounds training for all VLJs and Board counsel, monthly topics training
for Board counsel, new attorney training, and training for VHA
compensation and pension examiners and VBA adjudicators. Additionally,
the Board has held preliminary discussions with VBA during the past few
months to develop a joint training video on the subject of medical
examinations and opinions. The Board feels confident that all of these
efforts are having a positive impact in making certain that VA fully
complies with the requirements contained in existing law regarding the
obtainment of medical examinations and opinions for service connection
claims.
Also, VA can and does provide examinations when they would be
helpful even if the provisions of section 5103A(d)(2) are not met. VBA,
provided regular guidance to the regional offices concerning applying
the duty to assist rules in regard to providing claimants with
examinations.
Question 15. Should the statute be amended so that failure to
provide a medical examination or opinion before denying a claim for
service connection should be considered clear and unmistakable error?
Please discuss the rationale for your response.
Response. Under longstanding and well-established law, a clear and
unmistakable error (CUE) is a very specific and rare kind of error. It
is a kind of error, of fact or of law, that when called to the
attention of later reviewers compels the conclusion, with which
reasonable minds could not differ, that the result would have been
manifestly different but for the error. Generally, either the correct
facts, as they were known at the time, were not before the agency, or
the statutory and regulatory provisions extant at the time were
incorrectly applied, see 38 CFR Sec. 20.1403; see also 38 U.S.C.
Sec. Sec. 5109A, 7111.
Because the review for CUE must generally be based on the record
and the law that existed when the prior final decision being challenged
was made, the Secretary's failure to fulfill the duty to assist,
including providing a medical examination or requesting opinion is not
a legal basis for finding CUE. This is so because an error must be
undebatable and manifestly change the outcome of the decision that was
made at the time for purposes of finding CUE. In that regard, an
incomplete record is not an incorrect record as it is impossible to
know what the results would have been from an examination or opinion
that was not obtained years earlier.
If Congress were to amend the statutes so that failure to provide a
medical examination or opinion before denying a claim for service
connection could be considered CUE, it would both fundamentally change
the meaning and concept of clear and unmistakable error and remove
further any remaining concept of finality in VA claims and appeals
adjudication. Moreover, even assuming that a determination was made
that a medical examination or opinion should have been provided before
making a rating determination or Board decision at some point in the
past, a quandary would still be presented as to the impact of such
error and whether it was outcome determinative. Without being able to
go back in time to conduct an examination that could include a request
for an opinion, the parties would only be left to speculate as to what
the results of the examination and opinion would have been. Claims
adjudications, however, are required to be based on evidence, and not
speculation. Accordingly, for these reasons, changing the law to
provide that failure to provide a medical examination or opinion before
denying a claim for service connection should be considered CUE would
not be good.
Question 16. You testified that the timeframe for filing an NOD
should be reduced from 1 year to 6 months. Mr. Cohen criticized this
idea and made the observation that this places a burden on the veteran
while there are no time requirements imposed on the VA staff at any
point in the claims process, even in the EAC Initiative. Where can time
requirements be put in place for VA employees to process the claims?
Response. The requirements for filing a Notice of Disagreement
(NOD) are quite straightforward. A NOD is a written communication from
a claimant or their representative that expresses dissatisfaction or
disagreement with an adjudicative determination by the agency of
original jurisdiction, see 38 CFR Sec. 20.201. Typically, a brief
statement from the appellant or their representative is sufficient.
Regarding the criticism that there are no time requirements imposed
on VA staff at any point in the claims process, the Board believes that
time limits on VA need to be carefully balanced with VA's duty to
assist a claimant in obtaining evidence necessary to substantiate a
claim for benefits, see 38 U.S.C. Sec. 5103A. It is critical that all
claims and appeals are processed with fully-developed records including
all relevant evidence identified by the appellant and any necessary
examination reports or medical opinions. In obtaining records from
various government and private sources, VA often experiences delays in
obtaining a response from those offices. As VA has no control over non-
VA organizations it is simply not practicable to establish fixed
periods of time within which VA must act.
Under the expedited claims adjudication initiative (ECA), there is
a time limit placed on VA, see 38 CFR Sec. 20.1504(b), VA is required
to certify and transfer the appellate record to the Board within 30
days of receipt of the Substantive Appeal, or within 30 days of receipt
of any additional submissions following the Substantive Appeal, but no
later than 60 days from the date of filing the Substantive Appeal.
Notably, upon drafting the final rules for the ECA, VA determined that
a limited exception to the time period imposed upon VA in 38 CFR
Sec. 20.1504(b) was necessary to ensure fairness and full compliance
with the duty to assist. This exception is for circumstances when,
after issuance of the SOC, VA is put on notice of a change in
circumstances, such as a worsening of the claimant's condition or the
location of previously unobtained relevant evidence. In order to ensure
full compliance with the duty to assist under the VCAA, see 38 U.S.C.
Sec. 5103A, VA may have an obligation to order a new examination for
the claimant or to obtain copies of the relevant records. Due to the
time required to schedule a new examination or obtain new records,
these actions may make it challenging, if not impossible, for VA to
comply within a strict time limit. Consequently, out of fairness to the
claimant, an exception to the time period in the ECA for certification
in 38 CFR Sec. 20.1504(b) was created for circumstances in which VA is
required under 38 U.S.C. Sec. 5103A and 38 CFR Sec. 3.159(c) to provide
assistance in obtaining evidence after issuance of the SOC. Time limits
on VA have the danger of chilling full development on a claim, should
relevant information or evidence be particularly difficult to obtain,
or should such information or evidence arrive late in the adjudication
process.
Chairman Akaka. Thank you very much, Mr. Terry, for your
testimony.
Before I begin with questions, I would like to acknowledge
the presence of Judge Alan G. Lance, Sr. in this room. Judge
Lance is from the Court of Appeals for Veterans Claims.
Welcome. We are glad to have you here with us today.
Chairman Terry, the Board began and evolved in a time where
there was no judicial review. We needed a way to provide
independent review of decisions from regional offices, a simple
check and balance system.
Now that the Court has been in existence for 20 years, what
do you see as the current value of the Board and, most
especially, the need for and value of a de novo review?
Mr. Terry. Sir, as you know, the 57 regional offices hear
about 840,000 cases each year. Of these 840,000 claims, 55
percent are older--are people who are already in the system--
and 45 percent are people who are new in the system.
Of that number at the regional office level, they grant
approximately 61 percent of those cases, or better than
500,000.
There are 300,000 that are denied for one reason or
another. Of those 300,000, the pool of some 40-odd thousand
cases comes to our Board.
So, about 12 percent of those that are denied at the
regional office level come to our Board. That is a huge number
of cases.
You have to remember we have the facility in our Board,
with 60 judges and nearly 300 attorneys, to adjudicate timely
and fairly, and we do. We have a cycle time right now of 116
days or between 3 and 4 months to adjudicate a case from the
time it arrives on our doorstep. That does not include the time
that the case is being reviewed by the Veterans Service
Organization.
But that is, in effect, a very positive number when you
consider that it was 154 days only 2 years ago. We are making
tremendous strides to reduce that cycle time.
When you compare that to the Court cycle time of 444 days
and you compare the fact that they dismiss a great percentage
of their cases--so their actual time for those that they
adjudicate is somewhat longer--I think it puts in perspective
how well the Board is actually doing.
To get to your question of why it is critical that the
Board function and improve its functioning, the number of cases
alone would overwhelm the Court of Appeals for Veterans Claims.
They receive, as I said, some 4,000 cases, and they adjudicated
last year a number in excess of that which they actually
received, and to their credit. But they would be overwhelmed by
a system in which they had that many claims to adjudicate. So,
just in numbers alone, there would be no way that one body of
the presently structured Court could handle that number.
That doesn't mean they do not do an extremely fine job and
aren't totally professional in what they do. We all concede
that, sir.
Thank you.
Chairman Akaka. Chairman Terry, I am very concerned that 70
percent of the cases appealed to the Court are remanded for
further adjudication. How do you explain this very high remand
rate?
Mr. Terry. I thank you for asking that because I was quite
concerned with the written testimony of Judge Kasold where he
talked about a 70 percent remand rate. I have the Court's
statistics from last year right in front of me. They decided
4,446 cases and remanded 1,625, which is 35 percent by
anybody's calculation, not 70 percent.
When you take into account, sir--and I think this is
critically important--that 60 percent of the remands coming out
of the CAVC--60 percent--are never seen by a CAVC judge, but
instead are the result of settlement actions as joint motions
for remand by the parties before the Court. I think that is
critically important.
Those 1,625 are not the subject of remands by the Court but
are processes that are administrative in nature, agreed to by
the parties. I think that needs to be kept forefront in the
minds of the Members when you are considering this.
I have the statistics from the Court of Appeals for
Veterans Claims for last year, and I would be glad to share
that with the Committee if they would desire to see that.
Chairman Akaka. Judge Kasold, will you please respond to
that?
Judge Kasold. Well, obviously, I will defer to Chairman
Terry's numbers until we get back to the Court and I find out
where the discrepancy is.
With regard to the number of appeals that are remanded,
accepting the numbers presented by the Chairman--I have no
reason to doubt them--I assume for now that there is a mistake
in the numbers that we presented.
But, with regard to the numbers that he just mentioned,
with regard to those that are remanded, based on a joint
motion, the fact of the matter is the joint remands came
because there was an appeal to the Court; and then the claim
had to be looked at more closely by the Secretary. And then the
Secretary determined that in the Secretary's view the Board had
made an error, and so a remand had been provided.
With regard to the 30-some odd percent versus the 70, we
will get back with you, Mr. Chairman.
Chairman Akaka. Thank you. Thank you very much.
Judge Kasold, you stated in your testimony that efforts
should be taken to reduce the number of errors made, in
particular, repetitive errors in cases appealed from the Board.
Can you elaborate on what kind of repetitive errors the Court
is seeing? What efforts would you recommend?
Judge Kasold. Well, we see an awful lot of inadequate
notice errors. We see an awful lot of reasons and bases errors,
which is the explanation that is provided by the Board for
their decision. We see a number of inadequate medical opinions
that have been obtained, and we see inadequate effort taken to
secure other evidence or documents. Those are the ones that we
generally see that are the subject of a remand.
As to recommendations, I have to defer to the Chairman and
the Secretary, because naturally, you would think it is due to
a resource situation or a training situation. I believe the
Chairman has indicated he is aware of that. As to any other
specific recommendations, I think I would have to defer to the
Chairman, who is on top of that.
Chairman Akaka. Senator Burr.
Senator Burr. Thank you, Mr. Chairman.
Judge and Mr. Chairman, welcome.
I am going to try and look at this as a layman for just a
second. One of the difficulties we have had in the past I think
is accurate numbers, but I am going to assume the numbers I
have are accurate for the purposes of this.
Fiscal year 2008, the VA regional offices received 891,000
and some change claims from veterans, the Board of Veterans'
Appeals received 40,916 appeals and the Court of Appeals for
Veterans' Claims received 4,128 appeals.
In fiscal year 2008, the VA regional offices decided
899,000 and some change, the Board of Veterans' Appeals, 43,757
and the Appeals Court, 4,446.
Now that shows we are actually processing more than we are
receiving. That is a positive trend.
I have some questions about where we go from here, and the
question I think at the heart of everybody is, how do we get
rid of the backlog? Because, clearly, we have in place a
structure that, under the number that come in, we can process
back out in one of the three areas that number and possibly a
little bit more. Now to get rid of the backlog, we are talking
about years and years and years.
So, one of the things I will pursue with the Chairman is:
is there a surge strategy that we can use that is short-term,
that is targeted, and that is temporary, to dispose of the
backlog in this system? Clearly, we have a structure right now
that is able to handle and process the number of new claims
that are coming into the system, regardless of which area they
come into.
Let me go specifically to some questions, though. In 2005,
Chief Judge Kramer offered recommendations to this Committee on
how to stop the ``almost never-ending cycle of both the Board
of Veterans' Appeals and Court-ordered remands,'' which in his
view ``clog the system and prevent timely justice for all
claimants.''
One, do either of you share Judge Kramer's view about
remands clogging the system and do you have any specific
recommendations to reduce the number of remands from either the
Board or the Court? Judge?
Judge Kasold. Yes and no is the answer, Senator.
The 800,000-some odd claims processed below have about a 5
percent appeal rate to the Board, which then have about a 10 or
15 percent appeal rate to the Court.
Again, I do not know and I cannot speak authoritatively to
the processing at the Board and what might be needed at the
Board for their particular decisions, but they process a
significant number of decisions.
Within the Court, as you indicated, we are now processing
claims as they come in, the appeals as they come in.
Our Chief Judge implemented last spring an aggressive
mediation process which is having some favorable results.
Taking rough numbers, half of the claims, actually more than
that, come in pro se. But those that come in with attorneys go
through the mediation process, and about half of those are
being remanded without going through the judicial process.
Within the Court, I might add that you switch from an
administrative process below where the veteran gets his de novo
review by the regional office and a de novo review by the
Board. He gets two absolute fresh looks down below. Whether
that should be continued or not might have been raised by the
Chairman's question; but certainly that is beneficial, I would
think, to the veteran.
And that is non-adversarial. The Secretary is duty-bound to
assist the veteran.
The Veteran then moves into the judicial arena--an
adversarial arena. Now we have two parties. Yes, the veteran
disagrees with the Board decision, but the Secretary most often
agrees with it. Of course, given the number of settlements we
get in mediation, the Secretary obviously disagrees with some
of the Board decisions. Because of the appeal, the Secretary
looks at the claim closer and may agree that it should be sent
back.
When you get into the judicial arena, and now we have two
parties, you have 60 days--actually that was in the past; just
recently we changed it, trying to shorten it down--but you had
60 days to prepare a record, 30 days to respond to it and 30
days to then submit it to the Court. You have 120 days right
there.
You then have 60 days for briefing for the appellant, 60
days for the Secretary and 30 days to respond.
This is traditional, normal appellate processing. You have
270 days in that process.
The Court has changed its rules to eliminate about 30 days
of that processing associated with the record. I cannot say at
this point that we have gotten the full benefit of that because
there are some changes being made at VA that are not fully
implemented at this time, but we are working toward it. The
copying of the record electronically, et cetera--they are
adjusting for all of that.
But you cannot shorten the time much more because you have
an adversarial system with two parties coming up and making a
presentation.
Obviously, I am not the Chief, so I do not usually get into
these numbers except in preparation for coming here, although I
may have made a mistake on the information they gave me with
regard to the 70 percent remand rate. Given the number if
appeals that go to Court, our single judge decision process is
very favorable to the time processing of these appeals and
favorable to the veteran because the Court has taken the
position that we will give an explanation for each decision.
We might have some discussion later about summary
disposition, which is a yes or no decision. You win or lose
with no explanation. That doesn't really help the veteran. It
doesn't help the Board. It doesn't give them guidance with
regard to why a decision was appealed. Yes, other appellate
courts do it in a number of cases, but we haven't seen it to be
appropriate with this type of case.
Anyway, those cases that present no new, novel issues, and
those cases that present a fact scenario that is not reasonably
debatable are decided by single judges, and those are most of
our cases.
And most of those cases are being decided well within a 60-
day period when they get to chambers. Some are in the 90-day
period, and a few of them that are more complex go longer.
Those that go to panel go longer. That is another issue. They
present new, novel issues that will impact the entire system
down below, et cetera.
But the actual processing--the judicial review processing--
is taking from 60 to 90 days to process for most of the single
judge cases. I know those numbers haven't been put together by
the Court. It is something that I am going to recommend to the
Chief Judge: that he presents back to the Committee, so that it
can see that particular part of the judicial processing time.
You also have at the end of it--and these are all kept in
the time processing at the Court--a process for reconsideration
or panel request. It takes 21 to 51 days--51 days if you are
overseas; 21 days though, generally. If you do not seek that,
you then have 60 days before the mandate issues to take an
appeal to the Federal Circuit.
If a party does seek a reconsideration by the single judge
or a panel, that takes more time to process. I haven't seen
those figures, but you can imagine there is additional briefing
possibly, et cetera, on that.
Then you bring in judgment, and then you bring in mandate.
If a party appeals to the Federal Circuit, all of that time is
included in the 400-and-some days that you see accounted for in
processing an appeal by the Court. It is kept on our records.
At the Federal Circuit, we just identified statistics for
this past year. A hundred plus cases have been up there well
over a thousand days. So, while they have an overall processing
time that is less than that, which I believe has impacted our
numbers, this past year in fact they had over 100 cases that
they kept up there for over 1,000 days.
All that impacts our reported processing time. If you look
at the actual judge's time that is put on these, you are
getting a decision on most of them in 60 to 90 days. Of course
our panel cases, as I indicated, take longer.
I do not think you can reduce very much the pre-decision
processing and related time because you have an adversarial
system and the briefing has to be done, et cetera.
The post-decision part, frankly, is a result of this dual,
unusual judicial appellate review that we have within this
system and something that I recommended in my written testimony
be looked at.
This Court has been around for 20 years. There are two
other Article 1 Courts. Both of them have cert directly to the
Supreme Court. The Court of Appeals for D.C. did not
originally. It went to the D.C. Federal Circuit Court, and then
after time it was given cert to the Supreme Court. That will
take out the back portion of all this numbered processing, and
it has an effect downhill, if you will, because those that are
decided on the merits by the Federal Circuit can have
precedential effect that impacts an awful lot more cases.
So, it is very interesting to look at these numbers. Again,
I will ask the Chief Judge to present them to the Committee
because the actual judicial processing, I believe, is occurring
at a normal pace. I think that reporting the appellate time at
the end is unusual.
Senator Burr. Chairman Terry, did you have anything you
would like to add to that question?
Mr. Terry. Thank you, sir.
I agree with what Judge Kasold has said. The issues right
now in terms of how cases are delayed are tied to a regulatory
and statutory structure in terms of absolute guaranteed times
to submit evidence and to provide an opportunity to submit all
available information, and that is one of the areas that I
think the Expedited Claims Adjudication Initiative will really
help. If this, in fact, does provide a template for some
changes in statutory and regulatory practice, I think it would
be tremendously helpful.
We agree that certainly we look at changes in the law and
the failure to exhaust administrative review and settlement
action and failure to properly apply and consider prejudicial
error standard as just other reasons why the remand problem
exists and also why we have delays as a result of that remand
problem.
Bringing down the remand rate both at the Court and from
the Board is one of our principal and continuing endeavors, as
it is at the Court. If we can bring down that remand rate,
there is no question that we can improve the timeliness of our
decisionmaking overall within the system.
Senator Burr. I thank you.
Thank you, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Burr.
Senator Begich.
Senator Begich. Thank you, Mr. Chairman.
As a new Member to the Committee, I will probably have some
very naive questions. But to be very frank with you, as I am
sitting here, watching you two, I am glad there is a chair
between you. But I am not sure that is healthy, frankly. So I
am one of these that look at things that I am sure later I will
be told by many different organizations: this is the way it is,
this is the way it has been.
But I am trying to figure out--and I use my experience as a
former mayor, a strong executive process--when people have an
issue, we have a hearing officer. They make a decision, and
then that is it. If they do not like it, they go to court, and
that is it.
In the comments you made, the dual system has been around
for a long time. I just want a very simple answer. I do not
want an explanation. I do not want a defense of numbers and all
that because numbers can go all kinds of ways.
The goal is to streamline the process, make it more
effective, and benefits that are owed to veterans are paid for
and dealt with. Is it time to take a real serious look and
change the system and streamline it?
I will start over here with Mr. Terry.
Mr. Terry. I think we have been in the process of
streamlining the approach taken, and I think that is reflected
in the number of cases and the error rate. For example, the
number of cases reversed last year by the Court of Appeals for
Veterans Claims of Board decisions were fourteen in number.
Senator Begich. Seven total out of how many, gross number?
Mr. Terry. Well, they decided 4,446 or 14 pure reversals,
and we can certainly get you those cases.
Senator Begich. You are arguing my comment here.
Mr. Terry. But I think my concern is that we have a process
where we have the opportunity to make decisions as provided by
law presently, and the Court likewise follows the procedures
that are set forth for the Court's determination. If we are
both scrupulous in our attempts to do that, then the process
works exceedingly well. And I think the Court and the Board are
trying very, very hard to do that.
There is no question that at times there are differences of
view of how the system can best be organized and managed. But
at the same time, overall, despite your perception, I think we
have an excellent relationship with the Court. And I think we
have the ability--through our conferences, through training
that we do within VA, and certainly the communications we have
with the Court--to really make some inroads and improve it
further.
But I think that is everybody's intent. I know it certainly
is ours, and it certainly is the Court's. I know, talking to
Judge Greene and Judge Kasold, all of whom we have known for
years and years and years, having served in the military
together. But I can tell you we have the greatest respect for
the personnel on the Court, and I think they share that respect
for us.
Sometimes there is a difference of view of how to get to
Point B, but I think we are all working to get to Point B.
Senator Begich. Great.
Judge Kasold. First, I apologize for any indication I gave
that there was bad blood here. I was just surprised that the
Board Chairman was surprised by my statement that we had a 70
percent remand rate. That is all, to be honest with you.
Senator Begich. OK. Good.
Judge Kasold. If we are wrong, we will absolutely correct
it.
Senator Begich. Good.
Judge Kasold. Obviously, the answer is yes with regard to
the judicial appellate system. We believe that 20 years of
developed case law now allows this Court to proceed and allow a
cert to go to the Supreme Court. Even the Chief Judge of the
Federal Circuit, in talking to our Chief Judge--I am told
because I didn't have that conversation but as it was relayed
back to me--agrees that that judicial review is extra and not
needed.
So, should a commission be put together, or whatever is
done to review that particular aspect, yes, I think it is the
appropriate time to do that.
And we have precedent in the D.C. Court of Appeals, which
went through a very similar process, and the Court of Appeals
for Armed Forces--which didn't have an intermediate court but
had a tremendous habeas corpus route that was going on--now has
direct cert to the Supreme Court to eliminate, to cut down on
that. Both of those are the other two Article I appellate
courts. So it does seem appropriate.
With regard to the Board, again, I have to defer to VA. But
I would say, just looking at it from the outside and as an
appellate judge, two de novo reviews below, the ability to
gather evidence through that entire process, is of benefit to a
veteran, it seems to me.
When you look at 800,000 claims being processed, I guess we
have numbers of 600,000 being paid or whatever. I do not want
to get into their numbers. I defer to other people.
Senator Begich. Right.
Judge Kasold. But the point is, should it be looked at?
Sure. There is nothing ever wrong with looking at a system.
Moreover, the VA adjudicatory system does provide, it seems to
me, two de novo reviews and the continuum of evidence-
gathering. A lot of Board remands, for example, go down to the
RO for additional evidence-gathering and are resolved at the
RO.
A lot of times, you file an Notice of Disagreement (NOD)--
which I do not know if the Secretary reports them as part of
his statistics--but you file an NOD which begins the appellate
process, and from that appellate process you get a statement of
the case that explains what the issues are in the case, and
then new evidence is submitted and an RO decision is rendered
in that case. Again, I do not know if this is reflected in the
Secretary's numbers or not, but it is a two de novo review with
continuum of evidence processing down below.
Senator Begich. Is that because there is more discussion
that causes that or is it because they have more time?
Judge Kasold. Which?
Senator Begich. In other words, when more evidence is
brought. I am trying to figure out what because the number you
used. I want to make sure I get this right. You indicated seven
cases last year.
Mr. Terry. That is by the Court of Appeals for Veteran's
Claims, pure reversals.
Senator Begich. Right. That is what I am talking about. So
I am trying to figure out--the ones that you described that had
been remanded back, is that because the time allotment gave
more time for the person to bring more evidence or is it that
there was no evidence given at the front end that should have
been and just was missed?
I am trying to figure out what caused----
Judge Kasold. And the Chairman can talk about the
difference between the RO and the Board, and I can give two
cents on it, I guess.
The Board is independent. It renders the final decision of
the Secretary. However, when you go to Court, the Secretary is
represented by his own counsel. Counsel looks at these cases
anew, and through the aggressive mediation process.
Senator Begich. You are looking at it.
Judge Kasold. Counsel look at it from the side, if you
will. Based on this fresh review of the case, the Secretary,
through his counsel, might agree that there is Board error and
that remand is warranted. Fifty percent of those that go
through the mediation process, since we started in April, are
being remanded without the actual judicial review.
If mediation does not resolve the matter, the briefing goes
on--well, when you have attorneys involved. You may not have
attorneys involved in all of these cases. The briefing helps
identify the issues. That can help both in the mediation
process and then in the judicial appeal process. Issues are
identified that maybe the Secretary didn't agree to--his
counsel didn't agree to.
But when they get before a Court, we say, yes, your reasons
and bases are wrong. Yes, you should have gotten a medical
statement. Yes, something along those lines.
With regard to an outright reversal, the facts have to be
fully developed to give an outright reversal. So, if you are
remanding because of the lack of a medical exam, because of a
reasons and bases issue, because of inadequate notice that was
provided to the veteran which caused inadequate development
down below, your absolute actual reversals are going to be
less.
There are more reversals on facts and things like that than
were mentioned, but seven actual reversals, I suspect that is
correct.
Senator Begich. Great.
I know my time is up, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Begich.
Chairman Terry?
Mr. Terry. Sir.
Chairman Akaka. At present, decisions by the Board are not
precedential, meaning that regional offices are free to ignore
decisions of the Board. Do you believe that this is an
appropriate outcome?
Mr. Terry. Let me explain, Mr. Chairman, why I believe that
it is. When you render this many decisions per year, if they
were to be published and circulated and bound and provided to
each and every litigant's attorney practicing before either the
Court or before our Board, it would be a system that would be
simply unmanageable.
When you look at how precedential decision bodies work and
how they publish decisions, and when you remember that each one
of our cases are fact-specific in which the judge has to give
the benefit of the doubt to the veteran, making that nuance in
each case so very different, under our law, both cases
approaching equipoise and in equipoise have to be rendered in
favor of the veteran, and we do so. If we were to try to
capture that in precedential decisions, which are fact-
specific, it would be a nearly impossible task, as well as
daunting, with respect to the number of published decisions
that we would have coming out each month.
For example, sir, in the last 4 weeks, our Board has
rendered an average of one thousand decisions per week. That is
a daunting number when you consider they are between 15 and 40
close-typed pages and specifically look at the facts and
circumstances of that veteran's case and apply the law in a way
which gives him the benefit or her the benefit of the doubt. If
we were to try to make that a precedential system where you had
head notes and you were trying to go back through 1,000 cases
and ensure that the benefit of the doubt rule as applied in
this case looked the same as applied in that case, you would
really have an impossible and daunting task.
I think the Board is entirely consistent. We do training to
ensure that our judges' decisions are consistent, but giving
the opportunity for the judge to render the benefit of the
doubt to the veteran is, I am sure, not something that can be
carefully captured in precedential decisionmaking at this time.
Chairman Akaka. Chairman Terry, what would happen if the
time period for filing a notice of disagreement was reduced
from 1 year to 180 days?
Mr. Terry. Sir, we would certainly support that. We would
support that. I know that many of our Veterans Service
Organizations and, specifically DAV, have suggested that. We
support them in every respect.
That is a basis for which the ECA was developed: trying to
make the system fairer for our veterans by ensuring that they
had all necessary time to submit information and evidence
before our Board and before the regional offices, but, at the
same time, ensuring that we are able to process their cases
most fairly for them.
So, yes, sir, I certainly think that would be a
tremendously beneficial process.
Chairman Akaka. Chairman Terry, are there enough Veterans'
Law Judges at the Board and can you please tell the Committee
how performance of Veterans' Judges Law Judges are assessed?
Mr. Terry. Sir, we have, I think, a very different review
process than any other board of our kind. We have a peer review
process. We have an evaluation process by our senior judges of
each of the judges within the four teams each year. A panel
sits and evaluates the error rate, the productivity, the care
with which the judge performs, the leadership he provides or
she provides over their teams each year. In fact, we certify to
the Secretary each year each of the judges on the Board.
It is a complete review process, and certainly this is a
process that we take great pride in, sir.
Chairman Akaka. Are there enough Veterans' Law Judges at
the Board?
Mr. Terry. Sir, we have 60 judges. The Secretary gave us
authorization to increase by four last year. We think that the
judge number is right. We develop with our senior attorneys and
use them as acting judges on occasion, and this allows us to
train our fine senior attorneys as judges.
I do not believe there is a lack of judges as expressed by
the fact that we are certainly turning out more decisions than
we have coming in right now.
Just for the record, sir, when I came in, the number of the
backlog was about 24,000. It is now below 16,000 for the first
time in 5 years, and we take great pride in that.
Chairman Akaka. Senator Burr.
Senator Burr. Mr. Chairman, just one question.
Mr. Terry, you said in your testimony ``the time might be
ripe for shortening certain statutory and regulatory response
periods for the purposes of expediting the processing of claims
and appeals.'' Can you explain?
You also raised a question about doing this without taking
away rights or protections of the veterans. Explain how you
shorten the periods and how you draw the distinction that you
are not infringing?
Mr. Terry. Certainly, sir.
In today's veterans' environment, nearly all our veterans
or a great majority of them are represented by either veterans'
service officers--very capable veterans' service officers--or
by attorneys. In representing these clients, they are assisting
our veterans along the path of making sure that all their
evidence is submitted.
What we are simply suggesting is, as in the Expedited
Claims Adjudication Initiative, when a veteran has an
opportunity to submit all evidence he has indicated he
possesses and indicates that to either the regional office or
to our Board and then makes it possible for us to move forward
to the next stage. What we are saying is if we institutionalize
that to some degree, it may be helpful for those represented
clients.
That is, if in fact they have submitted everything and
indicate to the system that they have, then we should not have
to wait for the entire year or 6 months. We should be able to
move forward and process their case more expeditiously.
I think there are ways we can do that. The Expedited Claims
Adjudication Initiative is a first step, and we certainly
appreciate the support that we have gotten from the Committee
on that initiative.
Senator Burr. Thank you.
Thank you, Mr. Chairman.
Chairman Akaka. Senator Begich.
Senator Begich. If I can just follow up on the Chairman's
question in regard to judge review, I think it is great how you
do that, especially on an annual basis. Do you also do an
analysis by judge of the levels of denials and of appeals?
Mr. Terry. We do. We have. We catalogue each of the judge's
decisionmaking exactly, and we ensure that it is within
appropriate ranges. Yes, sir.
Senator Begich. I do not know if this is the right phrase,
but after you have gone through the process of a kind of
recertification or gone through the review, have you ever, the
phrase I will use I guess is ``decertify'' the judge?
Mr. Terry. I have been there 4 years, sir. We had one
conditional recertification that I was involved in.
Senator Begich. So there is a process.
Mr. Terry. Yes, absolutely.
Senator Begich. OK. Then I am curious. I think it was you
that mentioned about the videoconferencing--that you would like
more authority. Is there something legislatively that has to be
done to give you that authority?
Mr. Terry. There is, because guaranteed in law at this
point there is an opportunity for an individual to have an in-
person hearing with a judge, and that has been interpreted not
to include a video hearing even though you can see the
individual back and forth.
We would like the flexibility to do what is most
expeditious for the veteran. They have the opportunity to
appear before our Board. If it is going to be a travel board,
that is fine, but if it is a case where it is most effective to
have a video hearing and we have the resources available
wherever the veteran is, with his representative, we would like
to be able to do that. We would like to have that simple
change.
Senator Begich. Yes, I would be very, very supportive of
that. So, if there is anything----
Mr. Terry. Thank you very much, sir.
Senator Begich. I think it is a great idea. I mean, we do
it in Alaska with our judicial system. Because of the distance
between here and Alaska, my six and one-half-year-old and I can
talk through video every night. So if we can do it there, we
can sure do it here.
The other question I would just be curious about relates to
the judges that you have. You had mentioned you have about 60
judges. All positions filled?
Mr. Terry. Yes, sir.
Senator Begich. Is there support staff that you have at a
level that is filled or needed additional resources?
Mr. Terry. Sir, we have been tremendously well supported by
this Committee, and we feel we have the right mix at this
point. I think that we are able. We were able to hire in the
last 3 years between 434 and 487, and we are going to go to
about 500 pursuant to allocations that are made by the
Department for this year.
Therefore, I believe, sir, that we have the resources to
really eat into that backlog and bring it down, I believe, to
10,000 before the end of this year.
Senator Begich. Great. So you have the support staff for
the judges, which is critical.
Mr. Terry. Yes, sir. Absolutely. Each of the judges is
supported by 6 attorneys who write for the judge, and each of
the attorneys is asked to provide 156 quality and timely drafts
a year. Each of the judges is asked to sign 752 decisions a
year. Last year, each of our line judges did far in excess of
that, as did our attorneys.
Senator Begich. Great. Thank you very much.
Chairman Akaka. Thank you very much, Senator Begich.
I want to thank this panel for your testimony and your
responses. It will be helpful for the Committee. I want to wish
you well. This panel is excused.
Judge Kasold. Thank you very much, sir.
Mr. Terry. Thank you, Mr. Chairman.
Chairman Akaka. I want to now welcome our second panel of
witnesses. They are here to share their thoughts on how the
appeals process for disability compensation can be modified. I
look forward to hearing your statements.
First, I welcome Kerry Baker who is the Assistant National
Legislative Director for Disabled American Veterans. I also
welcome Richard Cohen, the Executive Director of the National
Organization of Veterans' Advocates, Inc. And I welcome Bart
Stichman, the Joint Executive Director for the National
Veterans Legal Services Program.
Thank you all for joining us today. Your full statements
will appear in the record of the Committee.
Mr. Baker, will you please begin with your statement?
STATEMENT OF KERRY BAKER, ASSISTANT NATIONAL LEGISLATIVE
DIRECTOR, DISABLED AMERICAN VETERANS
Mr. Baker. Thank you, Mr. Chairman and Members of the
Committee. I am glad to be here today on behalf of the DAV.
As you know, the appeals process is extremely complex and
extremely lengthy. The VA estimates that it will decide over
940,000 claims in 2009, which will likely generate as much as
132,000 appeals. This represents at least a 30 percent increase
in appeals. Such an increase in appellate workload severely
affects VA's ability to devote resources to initial claims
processing.
Our recommendations are intended to simplify the process
while preserving resources and reducing expenditures. Some of
the recommendations contained herein may appear novel or
controversial at first. They may even draw criticism. However,
such responses would be misdirected.
These recommendations are carefully aimed at making
efficient a rather inefficient process without sacrificing a
single earned benefit. They include removing administrative
burdens in the appeals process by: one, incorporating the
appeal election letter into the notice of appellate rights that
VA provides with initial rating decisions; and, two,
eliminating to the extent feasible the requirement to issue
supplemental statements of the case or SSOCs.
We also propose larger recommendations such as reducing the
period in which an appeal can be initiated from 1 year to 6
months and disbanding the Appeals Management Center.
By including the appeal election letter along with a copy
of a rating decision, which VA must already provide the veteran
with appellate rights, the VA will no longer have to generate
and mail approximately 100,000 letters annually.
Additionally, by no longer issuing SSOCs in most cases, the
VA will reduce an extra 50,000 mailings. Some SSOCs are
substantially complex and therefore time-consuming.
These two actions alone could save VA approximately 100,000
annual work hours. This may even be a conservative number. That
amount of reduced work is equivalent to 625 VA employees
working for 4 full weeks. That is significant, we believe.
The DAV also believes that the time has come to reduce the
1-year appellate period currently allowed for filing a timely
NOD following the issuance of a rating decision from 1 year to
6 months. Reducing the appellate period from 1 year to 6 months
would not reduce veterans' benefits. Rather, it would further
reform and streamline the actual administration of the claims
process which includes appeals.
Finally, the DAV believes the AMC should be dissolved.
Regional offices should be held accountable for their own
mistakes. In fiscal year 2007, over 7,000 cases or nearly 20
percent of appeals reaching the Board cleared the local rating
board and local appeals board with errors that were elementary
in nature, errors that were either not detected or ignored.
Such basic errors would not occur if RO personnel were held
responsible for their own work.
Further, the AMC is succeeding at resolving less than 2.8
percent of VA's appellate workload. The AMC completed nearly
12,000 appeals in 2008--far less than the number received from
the Board--out of which nearly 10,000 were returned to the
Board, 89 were withdrawn and only 1,789 were granted. In fact,
2,500 appeals were returned to the AMC at least a second time
because of further errors in carrying out the Board's
instructions. That is a 25 percent error rate.
These reasons support the proposition to dissolve the AMC.
In closing, the VA will never be able to maximize its
recent increases in staffing without making processes more
efficient. If such changes are made, the VA will see vast
improvements in its entire claims process that are essential to
achieving the broader goals of prompt and accurate decisions on
claims.
Likewise, only then, will the VA be able to incorporate
training, quality assurance and accountability programs
demanded by the veterans' community.
It has been a pleasure to appear before this honorable
Committee today.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Baker follows:]
Prepared Statement of Kerry Baker, Assistant National Legislative
Director, Disabled American Veterans
Mr. Chairman and Members of the Committee: I am pleased to have
this opportunity to appear before you on behalf of the Disabled
American Veterans (DAV), to address problems and suggest solutions to
the Department of Veterans Affairs (VA) disability claims process;
specifically, the appeals process.
The appeals process is extremely complex and often not understood
by many veterans, veterans' service representatives, or even VA
employees. Numerous studies have been completed on timeliness of claims
and appeals processing, yet the delays continue and the frustrations
mount. Therefore, the following suggestions are intended to simplify
the process by drastically reducing delays caused by superfluous
procedures while simultaneously preserving governmental resources and
reducing governmental expenditures.
As VBA renders more disability decisions, a natural outcome of that
process is more appellate work from veterans and survivors who disagree
with various parts of the decisions made in their case. In recent
years, the appeal rate on disability determinations has climbed from an
historical rate of approximately seven percent to a current rate that
ranges from 11 to 14 percent. The 824,844 disability decisions in 2007
generated approximately 100,000 appeals. The VA estimates that the
942,700 projected completed disability decisions in 2009 will likely
generate as much as 132,000 appeals. At the end of 2007, there were
over 180,000 appeals pending in regional offices and the Appeals
Management Center (AMC).
This increase in appellate workload seriously affects VA's ability
to devote resources to initial and reopened claims processing. Appeals
are one of the most challenging types of cases to process because of
their complexity and the growing body of evidence that must be reviewed
in order to process them. Likewise, the number of actions taken in
response to VA's appellate workload has increased. In 2001, the VA
processed more than 47,600 statements of the case (SOCs) and
supplemental statements of the case (SSOCs). In 2007, they processed
over 130,000 SOCs and SSOCs.
The Appeal Process and the Board of Veterans Appeals
I. REMOVE PROCEDURAL ROADBLOCKS TO EFFICIENCY IN THE APPEALS PROCESS.
To begin the appeal process, an appellant files a written notice of
disagreement (NOD) with the VA regional office (RO) that issued the
disputed decision. For most cases, the appeal must be filed within one
year from the date of the decision. After filing an initial NOD, the VA
sends the appellant an appeal election form asking him/her to choose
between a traditional appellate-review process by a rating veterans'
service representative (RVSR) or a review by a decision review officer
(DRO). DROs provide a de novo (brand new decision), review of an
appellant's entire file, and they can hold a personal hearing with the
appellant. DROs are authorized to grant contested benefits based on the
same evidence that the initial rating board used. The VA provides the
appellant 60 days to respond to the appeal election form. See 38 CFR
Sec. 3.2600 (2007).
Once the VA receives the appeal election form, the RVSR or DRO (as
appropriate) issues an SOC explaining the reasons for continuing to
deny the appellant's claim. A VA Form 9, or substantive appeal form,
which is used to substantiate an appeal to the Board of Veterans
Appeals (``Board'' or ``BVA'') is attached to the SOC. The VA Form 9
must be filed within 60 days of the mailing of the SOC, or within one
year from the date VA mailed its decision, whichever is later.
If the appellant submits new evidence or information with, or
following, the substantive appeal, (or any time after the initial SOC
while the appeal is active) such as records from recent medical
treatment or evaluations, the local VA office prepares an SSOC, which
is similar to the SOC, but addresses the new information or evidence
submitted. The VA must then give the appellant an additional 60 days to
respond (with any additional evidence, for example) following the
issuance of an SSOC. If the appellant submits other evidence,
regardless of its content, the VA must issue another SSOC and another
60 days must pass before the VA can send the appeal to the Board. In
many cases, this process is repeated multiple times before a case
reaches the Board. In many of those cases, the appellants are simply
unaware that they are preventing their appeal from reaching the Board.
The VAROs are not supposed to submit a case to the Board before the
RO has rendered a decision based on all evidence in the file, to
include all new evidence. This restriction stems from 38 U.S.C.A.
Sec. 7104, which has been interpreted to mean that the Board is
``primarily an appellate tribunal'' and that consideration of
additional evidence in the first instance would violate section 7104
and denies an appellant ``one review on appeal--to the Secretary,'' 38
U.S.C.A. Sec. 7104(a) (West 2002 & Supp. 2007); see Disabled Am.
Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1346 (Fed. Cir.
2003).
The foregoing procedures force the ROs to repeatedly issue SSOCs in
many cases, which merely lengthens the appeal, frustrates the VA, and
confuses the appellant. The problem does not end there. If an appellant
submits new evidence once the case is at the Board, or if the RO
submits a case to the Board with new evidence attached, the Board is
prohibited from rendering a decision on the case and is forced to
remand the appeal (usually to the Appeals Management Center (AMC)), if
for no other reason but for VA to issue an SSOC.
Notwithstanding the above, an appellant can choose to waive the
RO's jurisdiction of evidence received by VA after a case has been
certified to the Board by submitting a written waiver of RO
jurisdiction. In the case of an appeal before the VARO, this results in
VA not having to issue an SSOC concerning the newly submitted evidence.
In the case of an appeal before the Board, it results in not requiring
the Board to remand the case solely for issuance of an SSOC.
The Board amended its regulations in 2004 so that it could solicit
waivers directly from appellants in those cases where an appellant or
representative submits evidence without a waiver. 38 CFR
Sec. 20.1304(c); see 69 Fed. Reg. 53,807 (Sept. 3, 2004). This has
helped to avoid some unnecessary remands. The Board's remand rate
decreased from 56.8% in fiscal year (FY) 2004, to 35.4% in FY 2007 due
in part to these procedures. Nonetheless, the Board still remanded
1,162 cases solely to issue an SSOC. The frustrating reality of this
situation is that issuing an SSOC may only consume one work hour from
an experienced employee, but the case will nonetheless languish at the
AMC for the next two years while the VA completes that one-hour's worth
of work.
The statistical data for appeals in the VA represents a significant
amount of its workload. Appellants filed 46,100 formal appeals
(submission of VA Form 9) in FY 2006 compared with 32,600 formal
appeals in FY 2000. The annual number of BVA decisions, however, has
not increased. As a result, the number of cases pending at BVA at the
end of FY 2006--40,265--was almost double the number at the end of FY
2000. These numbers are exclusive to appeals at the Board and do not
include the substantial number of appeals processed by the appeals
teams in VAROs and especially the AMC.
In FY 2007, the Board physically received 39,817 cases. Despite
this number of cases making it to the Board, the VBA actually issued
51,600 SSOCs, a difference of 11,783.\1\ As of May 2008, the VBA has
already issued 38,634 SSOCs. Likewise, the Board has remanded an
additional 1,162 cases solely for the issuance of an SSOC. This number
does not include cases wherein the appellant responded to the Board's
initiation of a request for waiver of RO jurisdiction, thereby
eliminating the requirement for a remand for VBA to issue an SSOC.
---------------------------------------------------------------------------
\1\ The number of SSOCs may exceed 51,600 because VA's appeals
tracking system only records up to 5 SSOCs per case.
---------------------------------------------------------------------------
The average number of days it took to resolve appeals, by either
the Veterans Benefits Administration (VBA) or the Board, was 657 days
in FY 2006.\2\ This number, however, is very deceptive, as it
represents many appeals resolved at the RO level very early into the
process. The actual numbers show a picture much worse. According the FY
2007 Report of the Chairman, Board of Veterans' Appeals, a breakdown of
processing time between steps in the appellate process is as follows:
---------------------------------------------------------------------------
\2\ Note: Appeals resolution time is a joint BVA-VBA measure of
time from receipt of notice of disagreement by VBA to final decision by
VBA or BVA. Remands are not considered to be final decisions in this
measure. Also not included are cases returned as a result of a remand
by the U.S. Court of Appeals for Veterans Claims.
NOD to receipt of SOC--213 days--VARO;
SOC issuance to receipt of VA Form 9--44 days--appellant;
receipt of VA Form 9 to certification to the Board--531
days--VARO;
receipt of certified appeal to Board decision--273 days--
Board;
Total--1,061 days from NOD to Board decision--sadly, many are much
longer.
The function that should conceivably take the least amount of time
actually took the most amount of time--receipt of VA Form 9 to
certification to the Board. The reason for this lengthy time VA spends
on a relatively simple task is in part the result of issuing multiple
SSOCs.
Congress has the chance to eliminate tens of thousands, and
possibly far more than 100,000 hours annually from VA's workload,
including the costs associated therewith. Such changes would also
simplify an important part of the appeals process and can be made by
minor statutory amendments, and potentially only regulatory amendments.
Recommendation:
Congress should amend 38 U.S.C. Sec. 5104 (Decisions and Notices of
Decisions) subsection (a), to eliminate the need to wait until after an
appellant files an NOD in order to issue an appeal election letter.
Such an amendment would further eliminate the requirement that VA allow
an appellant 60 days to respond to such a letter, thereby shortening
every appeal period by 60 days.
The provisions of the foregoing statute states, inter alia, that
when VA notifies a claimant of a decision, ``[t]he notice shall include
an explanation of the procedure for obtaining review of the decision.''
38 U.S.C.A. Sec. 5104(a). This section could be amended to read: ``The
notice shall include an explanation of the procedure for obtaining
review of the decision, to include any associated appeal election
forms.'' The VA could then modify 38 CFR Sec. 3.2600 accordingly.
Despite this suggested statutory amendment, a solid argument exists
that supports a proposition that the VA can incorporate this
recommendation by modifying its regulation. As indicated above, the law
requires that VA, when issuing a decision, to notify a claimant of the
``procedure for obtaining review'' of the decision. The right to elect
traditional appellate process or a post-decision review from a DRO is
certainly part of the ``procedure for obtaining review.'' See Id. We
nonetheless suggest a statutory amendment to ensure compliance and to
shield the Department from possible litigation, however unlikely.
The VA currently receives over 100,000 NODs annually. This minor
change would eliminate 60 days of undue delay in every one of those
appeals and eliminate VA's requirement to separately mail, in letter
format, all 100,000 plus appeal election forms. This recommendation
would have a tremendous effect on VA's appeals workload without the
need to expend any governmental resources.
Recommendation:
Amend 38 U.S.C.A. Sec. 7104 in a manner that would specifically
incorporate an automatic waiver of RO jurisdiction for any evidence
received by the VA, to include the Board, after an appeal has been
certified to the Board following submission of a VA Form 9, unless the
appellant or his/her representative expressly chooses not to waive such
jurisdiction. This type of amendment would eliminate the VA's
requirement to issue an SSOC (currently well over 50,000 annually)
every time an appellant submits additional evidence in the appellate
stage. It would also prevent the Board from having to remand an appeal
to the AMC solely for the issuance of an SSOC (currently well over
1,100 annually). Further, the substantial amount of time spent by the
Board wherein it actively solicits waivers from possibly thousands of
appellants each year would be eliminated.
One possible way for the VA to administer such a change is by a
simple amendment to its VA Form 9. The amendment would merely require
the appellant or his/her representative to specify whether additional
evidence received at a later point is exempt from the waiver when such
evidence is submitted. The notice should be clear that evidence
received by VA without an express exemption will be forwarded directly
to the Board for review.
Such an amendment should state that the statutory change applies
``notwithstanding any other provision of law.'' This language would
prevent any contradiction with other statutes and future confusion
caused by any potential judicial review. This type of legislative
change would reduce VA and BVA's workload by many thousands of hours
while also reducing the appellate period in tens of thousands of cases
by 60 days per SSOC. The VA could then utilize the resources freed by
these changes to focus on other causes of delay in the claims process.
II. THE TIME HAS COME TO REDUCE THE APPELLATE PERIOD
FROM ONE YEAR TO SIX MONTHS.
The DAV believes the time has come to reduce the one-year appellate
period currently allowed for filing a timely NOD following the issuance
of a rating decision from one year to six months. This subject has been
the discussion topic in countless hallway and sidebar conversations for
a considerable period of time. It is time these discussions be made
public.
President Hoover, under the authority of a July 3, 1930, Act of
Congress, consolidated the Veterans' Bureau, the Bureau of Pensions,
and the National Home for Disabled Volunteer Soldiers into a single
government agency--the Veterans' Administration. This Act created the
Board of Veterans' Appeals.
For over 100 years prior to this, disabled veterans seeking
pensions had to navigate ever-changing bureaucracies. For years, many
had to petition through a mix of Congress and what is now the Court of
Federal Claims (i.e., The People's Court) just to be recognized as
having veteran status.
From the U.S. Civil War up to 1988, a span of 125 years, there was
no judicial recourse for veterans who were denied disability benefits.
The Veterans Administration (formerly), was virtually the only
administrative agency that operated free of judicial oversight.
Also throughout these years, the Executive could, and did,
implement measures to repeal benefits anytime it felt justified. For
example, President Franklin D. Roosevelt created ``Special Boards of
Review'' in 1933, staffed by civilians that were not VA employees.
These Boards sua sponte reviewed over 51,000 cases--only 43 percent of
veterans whose cases where reviewed were allowed to keep their
benefits.
Veterans stepped up pressure for judicial review after World War
II. Those whose claims for benefits were denied by the Veterans
Administration were afforded no independent review of decisions,
Veterans were denied the right afforded to many other citizens to go to
court and challenge similar agency decisions.
The status quo of no judicial review of veterans claims persisted
until an influx of post-Vietnam claims in the 1970s and 80's directed
the spotlight on an adjudication process in obvious need of reform. The
House Committee on Veterans' Affairs consistently resisted efforts to
alter the VA's unique status and noted that the Veterans Administration
stood in ``splendid isolation'' as the single Federal administrative
agency whose major functions were explicitly insulated from judicial
review. (The Supreme Court was sure to remind all of the coldness of
that term in a landmark decision.\3\) By now, history had proven that
without proper oversight, those wishing to cut veterans' benefits,
whether couched in government reform or expressly decided by an Agency
Board, while ignoring the suffering caused by their service-connected
disabilities would do so without hesitation.
---------------------------------------------------------------------------
\3\ See Brown v. Gardner, 513 U.S. 115, 118 (1994) (holding that
statutory interpretation, or ``interpretative doubt'' be resolved in a
veteran's favor and further stating: ``But even if this were a close
case, where consistent application and age can enhance the force of
administrative interpretation . . . , the Government's position would
suffer from the further factual embarrassment that Congress established
no judicial review for VA decisions until 1988, only then removing the
VA from what one congressional Report spoke of as the agency's
`splendid isolation.' (citation omitted). As the Court of Appeals for
the Federal Circuit aptly stated: `Many VA regulations have aged nicely
simply because Congress took so long to provide for judicial review.
The length of such regulations' unscrutinized and unscrutinizable
existence' could not alone, therefore, enhance any claim to
deference.''
---------------------------------------------------------------------------
The Veterans' Judicial Review Act finally created a veterans' court
under Article I of the Constitution on November 18, 1988. This Act of
Congress, along with a multitude of other favorable pieces of
legislation throughout the years, has solidified the VA into its
current non-adversarial, veteran-friendly, pro-claimant system.
Veterans and their dependents also have more avenues than ever before
to choose from when seeking representation in the claims and appeal
process. Veterans' organizations are also stronger than ever and stand
ready to fight against any power that might try to reduce benefits.
It is for all of these reasons and many more, however, that
reducing the appellate period from one year to 6 months would not
reduce veterans' benefits. Such a time would also be consistent with
other appellate periods. For example, an appellant currently has 60
days in which to file an appeal to the Court of Appeals for the Federal
Circuit from the Court of Appeals for Veterans Claims, and 120 days to
file an appeal to the Court of Appeals for Veterans Claims from the
Board. It necessarily follows then that a fair period to file an NOD,
which is the first step in initiating an appeal to the Board would be
an additional 60 days, totaling 180 days, which is still an extremely
long period by any appellate standards.
Recommendation:
Congress should decrease the period in which a VA claimant may
submit a timely notice of disagreement to the VA following the issuance
of a VA rating decision from one year to six months.
III. THE APPEALS MANAGEMENT CENTER PROMOTES AN ATMOSPHERE LOW IN
ACCOUNTABILITY, HAS A POOR RECORD OF SUCCESS, AND SHOULD BE DISSOLVED.
Accountability is one key to quality, and therefore to timeliness
as well. As it currently stands, almost everything in VBA is production
driven. VA's quality assurance tool for compensation and pension claims
is the Systematic Technical Accuracy Review (STAR) program. Under the
STAR program, VA reviews a sampling of decisions from regional offices
and bases its national accuracy measures on the percentage with errors
that effect entitlement, benefit amount, and effective date.
According to VA's 2007 performance and accountability report, the
STAR program reviewed 11,056 compensation and pension (C&P) cases in
2006 for improper payments. While this number appears significant, the
total number of C&P cases available for review was 1,540,211.
Therefore, the percentage of cases reviewed was approximately seven
tenths of one percent, or 0.72 percent.
Another method of measuring error rates and assessing the need for
more accountability is an analysis of the Board's Summary of Remands.
Of importance is that its summary represents a statistically large and
reliable sample of certain measurable trends. Review these examples in
the context of the VA (1) deciding 700,000 to 800,000 cases per year;
(2) receiving over 100,000 local appeals; and (3) submitting 40,000
appeals to the Board. The examples below are from FY 2007.
Remands resulted in 998 cases because no ``notice'' under 38
U.S.C.A. Sec. 5103 was ever provided to the claimant. The remand rate
was much higher for inadequate or incorrect notice; however,
considering the confusing (and evolving) nature of the law concerning
``notice,'' we can only fault the VA when it fails to provide any
notice. This is literally one of the first steps in the claims process.
VA failed to make initial requests for SMRs in 667 cases and failed
to make initial requests for personnel records in 578 cases. The number
was higher for additional follow-up records requests following the
first request. This number is disturbing because initially requesting a
veteran's service records are the foundation to every compensation
claim. It is claims development 101.
The Board remanded 2,594 cases for initial requests for VA medical
records and 3,393 cases for additional requests for VA medical records.
The disturbing factor here is that a VA employee can usually obtain VA
medical records without ever leaving the confines of one's computer
screen.
Another 2,461 cases were remanded because the claimant had
requested a travel board hearing or video-conference hearing. Again,
there is a disturbing factor here. A checklist is utilized prior to
sending an appeal to the Board that contains a section that
specifically asked whether the claimant has asked for such a hearing.
The examples above totaled 7,298 cases, or nearly 20 percent of
appeals reaching the Board, all of which cleared the local rating board
and the local appeals board with errors that are elementary in nature.
Yet, they were either not detected or they were ignored. Many more
cases were returned for more complex errors. Nevertheless, for nearly a
20-percent error rate on such basic elements in the claims process
passing through VBA's most senior of rating specialist and Decision
Review Officers is simply unacceptable.
The problem with the VA's current system of accountability is that
it does not matter if VBA employees ignored these errors because those
that commit such errors are usually not held responsible. One may ask,
``how does this apply to the appeals process?'' Simple, with the advent
of the AMC, local employees handling appealed cases have little
incentive to concern themselves with issues relating to accountability
because if the Board remands a case, then in all likelihood, the appeal
will be sent to the AMC, not back to the local employee. Therefore,
local employees realize they will most likely never see the case again.
Further, the AMC is essentially considered a failure throughout the
veteran community, including VSOs and VA employees. Part of this
failure is displayed in how and when appeals are resolved throughout
the appellate process. As of the end of FY 2007, the Board had disposed
of 24.5 percent of all appeals with an initial decision--21.7 percent
were resolved at local offices prior to submission of a form 9, which
usually means the appeal was granted--another 11.8 percent were
resolved at local offices after receipt of a Form 9, which also usually
means the appeal was granted. Approximately 35.5 percent of all Board
decisions were remands; however, only 2.8 percent were resolved after a
BVA remand.
As it pertains to the AMC, the 2.8 percent must shrink even further
when realizing that some appeals are returned to the Agency of Original
Jurisdiction, such as egregious errors and those represented by
attorneys. Therefore, the AMC is succeeding in resolving less than 2.8
percent of VA's appellate workload. This begs the question of what
exactly is the AMC doing?
The AMC received nearly 20,000 remands from the Board in FY 2008.
By the end of FY 2008, the AMC had slightly over 21,000 remands on
station. By the end of January 2009, they had approximately 22,600
remands on station. The AMC completed nearly 11,700 appeals, out of
which 9,811 were returned to the Board, 89 were withdrawn, and only
1,789 were granted. In fact, 2,500 appeals were returned to the AMC at
least a second time because of further errors in carrying out the
Board's instructions. This means the AMC's error rate was higher than
its grant rate. This record is not indicative of success.
If remands were returned to ROs rather than the AMC, local
employees would inherently be held to higher accountability standards.
Additionally, a large amount of resources, such as that utilized by the
AMC, would no longer be wasted on such little output, such as the
number of cased disposed after remand. Congress has already laid the
path for this action--VA must now capitalize on the opportunity.
Congress recently enacted Public Law 110-389, the ``Veterans'
Benefits Improvement Act of 2008'' (S. 3023). Section 226 of S. 3023
requires VA to conduct a study on the effectiveness of the current
employee work-credit system and work-management system. In carrying out
the study, VA is required to consider, amongst other things: (1)
measures to improve the accountability, quality, and accuracy for
processing claims for compensation and pension benefits; (2)
accountability for claims adjudication outcomes; and (3) the quality of
claims adjudicated.
The legislation requires the VA submit the report to Congress no
later than October 31, 2009, which must include the components required
to implement the updated system for evaluating employees of the
Veterans Benefits Administration. No later than 210 days after the date
on which the Secretary of Veterans Affairs (Secretary) must submit the
report to Congress, the Secretary must establish an updated system for
evaluating the performance and accountability of employees who are
responsible for processing claims for compensation or pension benefits.
Congress and the Administration must not conduct the foregoing
actions without including the appeals process--it is inextricably
intertwined with the entire claims processing system. Section 226 of
Pub. L. 110-389 may provide the perfect opportunity to dismantle the
dysfunctional AMC, return appeals to local offices, and include the
appellate process when enhancing VA's accountability as required by the
Veterans' Benefits Improvement Act of 2008.
Further, this is an historic opportunity for the VA to implement a
new methodology--a new philosophy--by developing a new system with a
primary focus of quality through accountability, which must include the
appellate process. Properly undertaken, the broad outcome would result
in a new institutional mindset across the VBA--one that focuses on the
achievement of excellence--one that changes a mindset focused mostly on
quantity-for-quantities-sake, to a focus of quality and excellence.
Those who produce quality work are rewarded and those who do not are
finally held accountable.
Recommendation:
When implementing the results of the Secretary's upcoming report
required by section 226 of the foregoing Act of Congress, the
Department must include the appellate process when seeking improvements
in the claims process. In doing so, one important action with respect
to the appellate process should be to dissolve the AMC and return
remanded appeals to those responsible for causing the remand. The
appellate process must further be included in an accountability
program, in accordance with section 226, that will detect, track, and
hold responsible those VA employees who commit errors while
simultaneously providing employee motivation for the achievement of
excellence.
The Court of Appeal for Veterans Claims
IV. THE VETERANS BENEFITS IMPROVEMENT ACT OF 2008
Last year Congress enacted S. 3023 into law, the ``Veterans
Benefits Improvement Act of 2008.'' In doing so, it wisely stipulated
language in title VI, section 601, that authorizes a temporary
expansion of judges at the Court and enhanced the Court's annual
workload reporting requirements.
The DAV believes that the temporary increase of two new judges will
prove beneficial in helping to control the Court's workload. In the
light of the new reporting requirements stipulated under section 604 of
the same legislation, Congress will be better situated to determine
whether these new positions should be made permanent.
We also believe that once the Court submits its first report in
accordance with the new reporting requirements, better judgments can
then be made regarding large policy issues affecting the Court's
workload and backlog. Such changes made too early could prove
premature. We therefore limit our recommendations to those that follow.
V. ENSURE NEW JUDGES APPOINTED FROM THE FIELD OF VETERANS' ADVOCACY AND
ARE EXPERIENCED IN VETERANS' LAW.
Whether Congress increases the number of judges on a permanent
basis or not, the issue of judge's credentials is still of critical
importance. As noted in the FY 2010 Independent Budget, Congress should
ensure that any new judges appointed to the Court of Appeals for
Veterans Claims are themselves a veteran's advocate and skilled in the
practice of veterans' law.
The Court received well over 4,000 cases during FY 2008. According
to the Court's annual report, the average number of days it took to
dispose of cases was nearly 450. This period has steadily increased
each year over the past four years despite the Court having recalled
retired judges numerous times over the past two years specifically
because of the backlog. Veterans' law is an extremely specialized area
of the law that currently has fewer than 500 attorneys nationwide whose
practices are primarily in veterans' law.
Significant knowledge and experience in this practice area would
reduce the amount of time necessary to familiarize a new judge to the
Court's practice, procedures, and body of law. A reduction in the time
to acclimate would allow a new judge to begin a full caseload in a
shorter period, thereby benefiting the veteran population. Congress
should therefore consider appointing new judges to the Court from the
selection pool of current veteran's law practitioners.
Recommendation:
Congress should ensure that any new judges appointed to the Court
of Appeals for Veterans Claims are themselves a veteran's advocate and
skilled in the practice of veterans' law. Congress should enact a joint
resolution indicating that it is the sense of Congress that any new
judges appointed to the Court of Appeals for Veterans Claims be
selected from the knowledgeable pool of current veterans' law
practitioners.
VI. THE NATION'S VETERANS HAVE EARNED THEIR OWN COURTHOUSE AND JUSTICE
CENTER THAT IS WORTHY OF THEIR SACRIFICE.
Sincere consideration must be given to the location and setting of
the Court. The DAV contends that the Court should be housed in its own
dedicated building, designed and constructed to its specific needs and
befitting its authority, status, and function as an appellate court of
the United States.
During the nearly two decades since the Court was formed in
accordance with legislation enacted in 1988, it has been housed in
commercial office buildings. It is the only Article I court without its
own courthouse. The ``Veterans' '' Court should be accorded at least
the same degree of respect enjoyed by other appellate courts of the
United States, and especially the degree of respect that those who have
born the battle for this great Nation have earned.
Rather than being a tenant in a commercial office building, the
Court should have its own dedicated building that meets its specific
functional and security needs, projects the proper image, and allows
the consolidation of VA general counsel staff, court practicing
attorneys, and veteran's service organization representatives to the
court in one place.
Recommendation:
The Court should have its own home, located in a dignified setting
with distinctive architecture that communicates its judicial authority
and stature as a judicial institution of the United States dedicated to
those who served this country in uniform. Construction of a courthouse
and justice center requires an appropriate site, authorizing
legislation, and funding. Therefore, Congress should enact legislation
and provide the funding necessary to construct a courthouse and justice
center for the Court of Appeals for Veterans Claims.
VII. CONGRESS SHOULD REQUIRE THE COURT TO AMEND ITS RULES OF PRACTICE
AND PROCEDURE TO PRESERVE ITS LIMITED RESOURCES.
Congress is aware that the number of cases appealed to the Court
has increased significantly over the past several years. Nearly half of
those cases are consistently remanded back to the Board of Veterans'
Appeals.
The Court has attempted to increase its efficiency and preserve
judicial resources through a mediation process, under Rule 33 of the
Court's Rules of Practice and Procedure, to encourage parties to
resolve issues before briefing is required. Despite this change to the
Court's rules, the VA's General Counsel routinely fails to admit error
or agree to remand at this early stage, yet later seeks a remand, thus
utilizing more of the Court's resources and defeating the purpose of
the program.
In the above practice, the VA usually commits to defend the Board's
decision at the early stage in the process. Subsequently, when the VA's
General Counsel reviews the appellant's brief, they then change their
position, admit to error, and agree to or request a remand. Likewise,
the VA agrees to settle many cases in which the Court requests oral
argument, suggesting acknowledgment of an indefensible VA error through
the Court proceedings. The VA's failure to admit error, to agree to
remand, or to settle cases at an earlier stage of the Court's
proceedings does not assist the Court or the veteran, it merely adds to
the Court's backlog.
Recommendation:
Congress should enact a Judicial Resources Preservation Act. Such
an Act could be codified in a note to section 7264. For example, the
new section could state:
(1) Under 38 U.S.C. Sec. 7264(a), the Court shall prescribe
amendments to Rule 33 of the Court's Rules of Practice and
Procedure. These amendments shall require that:
(a) If no agreement to remand has been reached before
or during the Rule 33 conference, the Department,
within 7 days after the Rule 33 conference, shall file
a pleading with the Court and the appellant describing
the bases upon which the Department remains opposed to
remand;
(b) If the Department of Veterans Affairs later
determines a remand is necessary, it may only seek
remand by joint agreement with the appellant;
(c) No time shall be counted against the appellant
where stays or extensions are necessary when the
Department seeks a remand after the end of 7 days after
the Rule 33 conference;
(d) Where the Department seeks a remand after the end
of 7 days after the Rule 33 conference, the Department
waives any objection to and may not oppose any
subsequent filing by appellant for Equal Access to
Justice Act fees and costs under 28 U.S.C. 2412.
(2) The Court may impose appropriate sanctions, including
monetary sanctions, against the Department for failure to
comply with these rules.
viii. congress should enforce the benefit-of-the-doubt rule.
The Court upholds VA findings of ``material fact'' unless they are
clearly erroneous, and has repeatedly held that when there is a
``plausible basis'' for the Board's factual finding, it is not clearly
erroneous. Title 38, United States Code, section 5107(b) grants VA
claimants a statutory right to the benefit of the doubt with respect to
any benefit under laws administered by the Secretary of Veterans
Affairs (Secretary) when there is an approximate balance of positive
and negative evidence (relative equipoise) regarding any issue material
to the determination of a matter.
Yet, the Court must usually affirm many BVA findings of fact when
the record contains only minimal evidence necessary to show a
``plausible basis'' for such finding. This renders a claimant's
statutory right to the benefit of the doubt meaningless because claims
can be denied and the denial upheld when supported by far less than a
preponderance of evidence. In other words, the weight of evidence for
and against a claim can be equal, therefore invoking the equipoise
standard; however, the Court must still uphold a denial based on weaker
evidence if it finds plausibility despite the unfavorable evidence
failing to equal the value of the favorable evidence. This effectively
moots the benefits of the doubt. These actions render congressional
intent under section 5107(b) meaningless.
To correct this situation, Congress amended the law with the
enactment of the Veterans Benefits Improvement Act of 2002 \4\ to
expressly require the Court to consider whether a finding of fact is
consistent with the benefit-of-the doubt rule. The Court has not upheld
the intended effect of section 401 \5\ of the Veterans Benefits Act of
2002. This is in part due to the Court's jurisprudence of reviewing the
Board's application of section 5107(b) as a finding of fact. As long as
that is the case, it is reviewed by the Court under the clearly
erroneous standard, which invokes the plausible-basis standard by
direction of higher courts' jurisprudence.
---------------------------------------------------------------------------
\4\ Pub. L. No. 107-330, 401, 116 Stat. 2820, 2832.
\5\ Section 401 of the Veterans Benefits Act, effective December 6,
2002, amended title 38, United States Code, sections 7261(a)(4) and
(b)(1).
---------------------------------------------------------------------------
The Veterans Benefits Act section 401 amendment to section
7261(a)(4), directs the Court to ``hold unlawful and set aside or
reverse'' any ``finding of material fact adverse to the claimant . . .
if the finding is clearly erroneous.'' \6\ Furthermore, Congress added
entirely new language to section 7261(b)(1) that mandates the Court to
review the record of proceedings before the Secretary and the BVA
pursuant to section 7252(b) of title 38 and ``take due account of the
Secretary's application of section 5107(b) of this title . . .'' \7\
---------------------------------------------------------------------------
\6\ 38 U.S.C. Sec. 7261(a)(4) (emphasis indicates amendments by
Veterans Benefits Act section 401(a)). See also 38 U.S.C.
Sec. 7261(b)(1).
\7\ See 38 U.S.C. Sec. 7261(b)(1).
---------------------------------------------------------------------------
The Secretary's obligation under section 5107(b), as referred to in
section 7261(b)(1), is as follows:
(b) Benefit of the doubt--The Secretary shall consider all
information and lay and medical evidence of record in a case
before the Secretary with respect to benefits under laws
administered by the Secretary. When there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant.\8\
---------------------------------------------------------------------------
\8\ 38 U.S.C. Sec. 5107(b) (emphasis added).
Reading amended sections 7261(a)(4) and 7261(b)(1) together, which must
be done in order to determine the effect of the Veterans Benefits Act
section 401 amendments, reveals that the Court is now directed, as part
of its scope-of-review responsibility under section 7261(a)(4), to
undertake three actions in deciding whether BVA fact-finding that is
adverse to a claimant is clearly erroneous and, if so, what the Court
should hold as to that fact-finding.
Specifically, the three actions to be taken as noted in the plain
meaning of the amended subsections (a)(4) and (b)(1) requires the Court
to: (1) to review all evidence before the Secretary and the BVA; (2) to
consider the Secretary's application of the benefit-of-the-doubt rule
in view of that evidence; and (3) if the Court, after carrying out
actions (1) and (2), concludes that an adverse BVA finding of fact is
clearly erroneous and therefore unlawful, to set it aside or reverse
it.
Therefore, as the foregoing discussion illustrates, Congress
intended the Veterans Benefits Act section 401 amendments to section
7261(a)(4) and (b) to fundamentally alter the Court's review of BVA
fact-finding. This is evident by both the plain meaning of the amended
language of these subsections as well as the unequivocal legislative
history of the amendments.
Amendments to section 7261, dealing with the same elements as did
Veterans Benefits Act section 401, were included in S. 2079, introduced
by Sen. Rockefeller on April 9, 2002.\9\ Sen. Rockefeller stated in
full regarding section 401:
---------------------------------------------------------------------------
\9\ See S. 2079, 107th Cong., 2d Sess., Sec. 2.
Section 401 of the Compromise Agreement would maintain the
current ``clearly erroneous'' standard of review, but modify
the requirements of the review the Court must perform when
making determinations under section 7261(a) of title 38. CAVC
would be specifically required to examine the record of
proceedings--that is, the record on appeal--before the
Secretary and BVA. Section 401 would also provide special
emphasis during the judicial process to the ``benefit of the
doubt'' provisions of section 5107(b) as CAVC makes findings of
fact in reviewing BVA decisions. The combination of these
changes is intended to provide for more searching appellate
review of BVA decisions, and thus give full force to the
``benefit of doubt'' provision . . . However, nothing in this
new language is inconsistent with the existing section 7261(c),
which precludes the Court from conducting trial de novo when
reviewing BVA decisions, that is, receiving evidence that is
not part of the record before BVA.\10\
---------------------------------------------------------------------------
\10\ 148 Congressional Record S. 11334 (remarks of Sen.
Rockefeller) (emphasis added).
In light of this background, the post--Veterans Benefits Act
section 401 mandate supersedes the previous Court practice of upholding
a BVA finding of fact unless the only permissible view of the evidence
of record is contrary to that found by the Board and that a Board
finding of fact must be affirmed where there is a plausible basis in
the record for the determination. Yet, the nearly impenetrable
``plausible basis'' standard continues to prevail as if Congress never
amended section 7261. Why? The DAV believes this is because the Court
cannot reasonably find a way around the clearly erroneous review
applicable to factual findings.
With the foregoing statutory requirements, the Court should no
longer uphold a factual finding by the Board solely because it has a
plausible basis, inasmuch as that would clearly contradict the
requirement that the Court's decision must take due account whether the
factual finding adheres to the benefit-of-the-doubt rule. Yet, such
Court decisions upholding BVA denials because of the ``plausible
bases'' standard continue as if Congress never acted.
As stated earlier, entitlement to the benefit of the doubt is a
statutory right, meaning its application should be an issue of law, not
one of fact. However, its application is inherently measured against a
set of facts. It therefore stands to reason that the Court should
review issues concerning section 5107(b) with regard to how the Board
applies a specific law to a specific set of facts. Consequently, the
Court reviews the Board's application of law to facts under an
arbitrary and capricious standard of review. Under such a standard, the
Secretary's decision is still entitled to deference from the Court,
unlike a de novo review wherein the Secretary receives no deference
from the Court.
The VA is a unique, non-adversarial forum for the adjudication of
veterans' benefits claims. The long-standing principle that those who
have borne the battle have earned a statutory right to the benefit of
the doubt when doubt arises in their disability claims is the backbone
of our great system. Proper and consistent application of the benefit-
of-the-doubt rule is critical to maintaining the unique characteristics
of this status.
Recommendations:
Congress clearly intended a less deferential standard of
review of the Board's application of the benefit-of-the-doubt rule when
it amended 38 U.S.C. Sec. 7261 in 2002, yet there has been no
substantive change in the Court's practices. Therefore, to clarify the
less deferential level of review that the Court should employ, Congress
should amend 38 U.S.C. Sec. 7261 to specify that the Board's
application of section 5107(b), the benefit-of-the-doubt rule is an
application of law to facts and therefore entitled to review by the
Court under an arbitrary and capricious standard.
Congress should enact a joint resolution concerning
changes made to title 38, United States Code, section 7261, by the
Veterans Benefits Act of 2002, indicating that it was and still is the
intent of Congress that the Court of Appeals for Veterans Claims
provide a more searching review of the Board's findings of fact, and
that in doing so, ensure that it enforce a VA claimant's statutory
right to the benefit of the doubt.
Congress should require the Court to consider and
expressly state its determinations with respect to the application of
the benefit-of-the-doubt doctrine under 38 U.S.C. Sec. 7261, when
applicable.
IX. EXPLORE THE PROS AND CONS OF PROVIDING THE COURT WITH
SUMMARY DISPOSITION AUTHORITY.
The DAV would welcome meaningful discussion on the benefits and
potential risks of providing the Court with limited authority to
summarily dispose of certain classes of appeals. At this time, the DAV
has not had the opportunity to explore this option to a degree that
provides us comfort as an organization to fully support or oppose the
concept. We nonetheless invite an open dialog on the matter.
CONCLUSION
We are confident these recommendations, if enacted, will help
streamline the protracted appeals process and drastically reduce undue
delays. Some of recommendations contained herein may appear novel and/
or controversial at first; they may even draw criticism. However, such
a response would be misdirected. These recommendations are carefully
aimed at making efficient an inefficient process without sacrificing a
single earned benefit.
Until such improvements are made, the VA will never be able to
maximize its recent increases in staffing. However, if such
improvements are made, only then will the VA see vast improvements in
its entire claims process--improvements that are essential to achieving
the broader goals of prompt and accurate decisions on claims. Likewise,
only then will the VA be able to incorporate training, quality
assurance, and accountability programs demanded by the veterans'
community. It has been a pleasure to appear before this honorable
Committee today.
______
Response to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka to
Kerry Baker, Assistant National Legislative Director, Disabled American
Veterans
Question 1. During the hearing it was suggested that some claims
for benefits can be triaged and rated quickly because they are, for
lack of a better term, ``no brainer'' claims. Can you provide this
Committee with examples of these types of claims?
Response. There are various types of claims in which the
application of law is not debatable given certain facts. For example,
title 38, Code of Federal Regulations, sections 4.29 and 4.30 provide
for a temporary total evaluation, or a 100-percent rating, anytime a
veteran is either hospitalized in excess of 21 days or undergoes
treatment, such as surgery, for a service-connected disability that
necessitates convalescence. Ratings for hearing loss are another
example. If a veteran is service-connected for hearing loss and
undergoes an examination for an increased rating, such increased rating
is based on application of a rating chart to the hearing test
results--as long as data is input correctly, the rating will be
accurate. Similar to hearing loss, tinnitus also receives a rating
closed to discussion, 10 percent. This percentage rating is applied
whether in one ear, both ears, constant, or recurrent. However, do not
confuse these ratings with the issue of service connection, as these
scenarios consider a veteran that is already service-connected for the
disability in question.
Many other types of claims can be triaged, other than rating
claims. For example, VA could complete all dependency claims in such a
manner. In many circumstance, claims for ancillary benefits could also
be triaged. Such claims include adaptive automobile and housing
benefits, although some claims with no clear entitlement require
additional development.
Question 2. Some of the common errors identified by Judge Kasold as
resulting in remands from the Court are failure to obtain medical
examinations and opinions and the failure to obtain documents and other
evidence. During Committee oversight visits, a frequent finding is the
failure of VA regional offices to obtain medical examinations and
opinions before denying a claim for service connection. Does the
statute need to be amended to require a medical examination or opinion
before denying an original claim for service-connection?
Response. I have testified considerably regarding the subject of
medical opinions. I do not believe your question can be answered in
simple terms. The problem with this subject is that it exists at
opposite ends of the proverbial spectrum. The VA either fails to obtain
a medical opinion when the law, as applied to the facts of a case,
requires it to do so, OR, when the facts are such that the law does not
require it to do so. An example of the first problem would be a veteran
claiming service connection for any given disability, and (1) proving
that he/she has the stated condition and has some triggering event in
the service, but no medical nexus (opinion) between the event and the
claimed disability. The law does not allow the rating specialist (a
layperson) to render such an inherent medical conclusion. Therefore, a
medical opinion is required. In far too many cases, no such opinion is
requested. The claim is then denied.
The second scenario occurs when a veteran, considering the
foregoing example, provides an opinion from his/her private or VA
doctor in order to satisfy the nexus requirement. In this scenario, the
VA routinely requests a medical opinion from a compensation & pension
(C&P) examiner simply because the veteran submitted one of his or her
own. In the vast majority of these cases, the VA C&P opinion is adverse
to the claimant. Then, instead of applying the provisions of title 38,
United States Code, section 5107, by giving the ``benefit of the
doubt'' to the veteran, the VA sides with the adverse medical opinion
when it never was required to obtain the opinion in the first place.
Each of these scenarios can be very frustrating to representatives,
but especially to VA claimants. The Independent Budget to include the
critical issues in the Executive Summary addresses some of these
problems in great detail and provides specific recommended solutions,
as does my previous testimony.
Question 3. Should the statute be amended so that failure to
provide a medical examination or opinion before denying a claim for
service connection should be considered clear and unmistakable error?
Response. This is a very interesting question. Currently, failure
to obtain a medical opinion is considered a failure to assist the
claimant under VA's ``duty to assist'' provisions. However, such a
failure has been rendered meaningless by the Court for two reasons,
each of which provides no incentive for the VA to apply the law
correctly. First, the Court's have decided that a failure to obtain an
opinion when necessary is a failure in VA's duty to assist a claimant
in the development of their claim, but that such a failure is not a
``clear and unmistakable error.'' Second, the Court's have decided that
although an adjudicative error, failure to obtain an opinion does not
rise to the level of an egregious error such that would toll the
finality of the claim.
The combination of these policies leaves the claimant as the only
one to suffer from such failures, while providing the VA no incentive
for lawful application of policy. I believe your question has two
possible answers. The first one is that: failure to obtain an opinion
``when needed'' will result in clear and unmistakable error when the
benefit sought is later awarded on a subsequently obtained opinion. The
second option is that instead of declaring such a failure a clear and
unmistakable error, you could amend the statute to declare it an
egregious error that tolls the finality of the claim, thereby
warranting an earlier effective date. (The effective date statutes
would probably require a conforming amendment). Either of these changes
would place important incentives for VA employees to prevent such
errors by placing liability on Agency actions. Either one of these
actions would balance this process by adding the above liability to VA
while simultaneously proving relief to VA claimants when VA fails to
apply the law.
Chairman Akaka. Thank you very much, Mr. Baker.
Mr. Cohen, your testimony, please.
STATEMENT OF RICHARD PAUL COHEN, EXECUTIVE DIRECTOR, NATIONAL
ORGANIZATION OF VETERANS' ADVOCATES, INC.
Mr. Cohen. Good morning and aloha.
Chairman Akaka. Aloha. Good morning.
Mr. Cohen. I thank the Committee for the opportunity to
present the views of the National Organization of Veterans'
Advocates.
We have a unique perspective because our 300 members
actually represent veterans and are in the trenches with them.
Many of our members are veterans.
We know that the VA is facing a storm of claims coming out
of the global war on terror. We also know there is a tremendous
backlog. And, we know that Congress has been doing everything
it could, including passing the Veterans' Benefits Improvement
Act of 2008, which mandated monitoring the training and
certification in the VA. That has all been helpful.
But when the reports come back showing that the training is
inadequate--because we believe it is--and that the work credit
system is a disincentive to reaching correct decisions, we
would hope Congress would revisit this issue and pass
legislation to require good training, adequate training and get
rid of the work credit system.
I need to change the thrust of my testimony because of
things that were said previously. One of the suggestions that
was reported by the Court was to get rid of the Federal
Circuit. That would be a big mistake because without the
Federal Circuit there would be no place where a veteran could
challenge a rule of the VA. That is done in the Federal
Circuit.
In addition, the Federal Circuit has been instrumental in
developing veterans' jurisprudence in the area of equitable
tolling when the Veterans' Court would not reach any
precedential decisions. Rather, it did single judge decisions
which carried no weight and which did not develop the law.
Furthermore, just recently, there was a case named Moore
that came down on the duty to assist, where the Federal Circuit
was instrumental in reversing what the Court did. It was in
error.
So, the Federal Circuit provides to the Court what the
Court provides to the BVA.
I would also state that the idea of doing remote hearings
in all cases or in many cases is not a good idea, especially
with the flood of veterans who are suffering from PTSD and TBI
or who are elderly. They cannot understand going remote. It
presents a problem. There is a time delay on the equipment that
is being used right now.
And the biggest problem is their record cannot be in two
places at the same time. So, if I want to tell a veterans' law
judge, look on page so and so, look at this document, I cannot
because we do not have the same documents in front of us.
I would also want to call the Committee's attention to the
fact that the information in the Court's testimony regarding
the remand rate is correct. It is 60 percent. If you take the
number of merit decisions and subtract from that the
extraordinary relief decisions, you will find pure merit
decisions. Then if you look at the number that were remanded,
you come up with the 60 percent figure.
It is important to remember that the figure that is
remanded for bad decisionmaking by the Board does not represent
all of the bad decisions. Most of the bad decisions, the
decisions that have inadequate reasons and bases, inadequate
explanation, are remanded by agreement of the parties. Those
are the ones that, in mediation, go away.
There is a tremendous number of bad decisions coming out of
the BVA. Bad decisions are what contributes to the backlog, bad
decisions from the front end to the back end.
What can we do about this? We need to restructure the
system. Congress was right years ago when you said that VCAA is
important. Notice, advance adjudicatory notice is important.
What we need is a notice up-front telling the veterans what
they need to submit and where they can get it.
Many times when our people get involved in the case it is
after the NOD, and we say to the veteran, oh, you just need to
do this and that. You should not have been arguing that you
were injured in service. What they want to know is if you have
a present disability.
They say, no one told us.
What we need to do is get rid of the six separate regional
office teams that they have--pre-determination rating, post-
determination--and have one team that can issue a case-specific
notice that is helpful and veteran-friendly. Have the veteran
contribute with the VA in developing the records. They can get
their medical records and bring them in. They can get an
opinion from the doctor.
The other thing that would go a long measure to reduce the
time is amending 5125. Where a veteran requests that their
doctor's report be accepted in lieu of a compensation and
pension exam, that should be mandatory if it is an adequate
exam sufficient for rating. That saves tremendous amount of
time.
If we rework the system, if the VA would remanage the way
they handle their claims process, they could save a lot of time
by making correct decisions.
The problem with the backlog in the Court and the problem
with the backlog in the VA is all bad decisions that keep
coming around.
I notice my time is up.
Thank you.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of Richard Paul Cohen, Executive Director,
National Organization of Veterans' Advocates, Inc.
Mr. Chairman and Members of the Committee: Thank you for the
opportunity to present the views of the National Organization of
Veterans' Advocates, Inc (``NOVA'') concerning the appeals process and
the operation of the Board of Veterans' Appeals (``Board'').
NOVA is a not-for-profit Sec. 501(c)(6) educational and membership
organization incorporated in 1993 and dedicated to train and assist
attorneys and non-attorney practitioners who are accredited by the
Department of Veterans Affairs (``VA'') to represent veterans,
surviving spouses, and dependents before the VA, and admitted to
practice before the U.S. Court of Appeals for Veterans Claims
(``CAVC'') and before the U.S. Court of Appeals for the Federal Circuit
(``Federal Circuit'').
NOVA has written many amicus briefs on behalf of claimants before
the CAVC and Federal Circuit. The CAVC recognized NOVA's work on behalf
of veterans when it awarded the Hart T. Mankin Distinguished Service
Award to NOVA in 2000.
The positions stated in this testimony have been approved by NOVA's
Board of Directors and represent the shared experiences of NOVA's
members, as well as my own 15 year experience representing veterans.
A. THE BOARD OF VETERANS' APPEALS' UTILITY AND IMPORTANCE
NOVA considers the Board's role to be useful and important to the
functioning of the Veterans Benefits Administration (``VBA'') in two
key respects. First, by statute, 38 U.S.C. Sec. 7104(a), the Board
provides a unique opportunity for a de novo review of an appealed claim
``based on the entire record in the proceeding and upon consideration
of all evidence and material of record and applicable provisions of law
and regulation.'' Additionally, because the Board is the highest
appellate body within the VA, it acts as a buffer between the 58 VA
Regional Offices (``VARO'') and the CAVC. Thus, without the Board's
intermediary role in reviewing and re-adjudicating claimed errors prior
to court appeals, the CAVC could feasibly face a 1000% increase in its
caseload from a little over 4,000 newly filed appeals each year to over
40,000 appeals.\1\
---------------------------------------------------------------------------
\1\ See CAVC annual report, FY 2008, located at http://
www.vetapp.uscourts.gov/documents/Annual_Report_-_20081.pdf, and the
Board of Veterans' Appeals Report of the Chairman, Fiscal Year 2007,
p. 15, cases received at BVA located at http://www.va.gov/Vetapp/
ChairRpt/BVA2007AR.pdf.
---------------------------------------------------------------------------
B. PROBLEMS WITH THE BOARD'S FUNCTIONING AND THE
ADJUDICATION PROCESS IN GENERAL
Although the Board's role and purpose are important, its
decisionmaking is rife with delays and errors, and the Board's
decisionmakers, the Veterans Law Judges, lack independence. Similarly,
the decisionmaking at the VAROs is slow and inaccurate. In addition,
some of the Decision Review Officers (``DROs''), who serve as the first
line of appeal adjudicators at the VAROs, ignore their duty which is
set forth in M21-MR, Part 1, Chapter 5, Section C, pp. 5-C-3, 5-C-15,
to hold informal conferences. When DROs do so, they deny claimants and
their representatives the time-saving opportunity to informally, narrow
the issues and resolve the appeals.
1. Logistical Delays
From the moment the veteran files a notice of disagreement
(``NOD'') with an adverse rating decision he or she will experience
unacceptable delays. Typically 1\1/2\ years lapse between the date the
veteran files his initial appeal, the NOD, and the date the VARO issues
the Statement of the Case (``SOC'').\2\ After the veteran receives and
SOC, he must file a VA Form 9 Substantive Appeal, to continue his
appeal to the Board. On average, over two more years elapse from the
date the veteran files a substantive appeal to the Board and the date
of the Board's decision.\3\
---------------------------------------------------------------------------
\2\ Department of Veterans Affairs FY 2008 Performance and
Accountability Report, p. 119 located at http://www.va.gov/budget/
report/2008/index.htm and Board of Veterans' Appeals Report of the
Chairman, Fiscal Year 2007, p. 16, average elapsed time from Notice of
Disagreement receipt until issuance of Statement of the Case.
\3\ Board of Veterans' Appeals Report of the Chairman, Fiscal Year
2007, p. 16, elapsed time from when the Statement of the Case is issued
until Board makes a decision. (When the VARO issues the SOC, this is
what triggers the veteran's right to appeal his case to the Board.)
---------------------------------------------------------------------------
The Board's share of delay is due in part to inadequate staffing
levels. In 2007, the Board had 56 VLJs divided into four teams. Each
team is comprised of two chief VLJs and 11 line VLJs and is supported
by 60 staff counsel.\4\
---------------------------------------------------------------------------
\4\ Board of Veterans' Appeals Report of the Chairman, Fiscal Year
2007, p. 2.
---------------------------------------------------------------------------
By contrast, in 2007, there were 1100 Administrative Law Judges
(``ALJs'') employed by the Social Security Administration (``SSA'').
These ALJs conducted hearings in over 500,000 cases in 2007.\5\ While
the SSA announced in 2008 the impending hiring of 144 new ALJs, the VA
continues to expect only 56 VLJs to process over 40,000 appeals each
year.\6\ Thus, adequately manning the Board will help alleviate the
backlog of cases waiting for adjudication.
---------------------------------------------------------------------------
\5\ See, http://www.nytimes.com/2007/12/11/opinion/
11tue1.html?_r=1; and Disability Determinations and Appeals, Fiscal
Year 2007, Office of Disability Programs, December 2007.
\6\ May 2007 Statement of Linda M. Springer Director U.S. Office of
Personnel Management, Subcommittee on Social Security Committee on Ways
and Means U.S. House of Representatives http://www.opm.gov/News_Events/
congress/testimony/110thCongress/05_01_2007.asp and notice February 26,
2008, at http://www.ssa.gov/pressoffice/pr/ALJ-hiringpr.htm.
---------------------------------------------------------------------------
Furthermore, in cases where the veteran is represented by an
accredited representative, requiring the VA's adjudicators to
communicate directly with the veteran's representative would also help
alleviate processing delays. Currently, it varies from VARO to VARO
whether or not the rating specialists and the DROs will speak with the
veteran's representative outside of a formal hearing. However, if
rating specialists and DROs were required to comply with the rules to
conduct informal conferences with the representatives, the parties
could narrow the issues, confer on what evidence development needs to
occur before adjudication, and resolve claims much more efficiently.
Using an archaic filing system also creates unnecessary delays.
Veterans' records are kept in a paper claims file referred to as the
``C-File.'' Both the VAROs and the Board use the C-File and, thus, ship
it between offices nationwide to adjudicate claims and appeals. Further
compounding the problem is the fact that the VAROs and Board transfer
and manage the C-Files using different computerized tracking
systems.\7\ Together these logistical problems result in inefficiency
and more delays--not to mention the very real problem of records
getting lost or damaged in transit. Thus, we support Secretary
Shinseki's initiative to implement electronic filing. Implementing a
universal file tracking system would further save considerable time and
eliminate inefficiencies.
---------------------------------------------------------------------------
\7\ The Regional Offices and the entire Veterans Benefits
Administration is required to use the Veterans Appeals Control and
Locator System (VACOLS) for on-line tracking of appeals, and it is
primarily used by the BVA (see M21-1, Part I, Chapter 5, Section K). In
addition, the Control of Veterans' Records System (COVERS) is primarily
utilized at the Regional Office level (see M21-1, Part I, Chapter 5,
Section F).
---------------------------------------------------------------------------
2. Delays Caused by Decision-Making Errors
Emphasis needs to be placed on the accuracy of decisions and not
the quantity of decisions made; to wit, if decisions were made
correctly the first time, this would eliminate the time it takes for
the VA to process appeals and correct errors on remand. The VAROs and
the Board frequently make errors in their decisions. However, errors
are not accurately reported. For example, the VBA claims a national
accuracy rate of 88% for what the Secretary has defined as
``compensation core rating work''.\8\ If this refers to compensation
adjudications, it is, obviously, an overgenerous estimate. In 2007, the
Board adjudicated 44,000 appeals and either remanded or reversed 50% of
those appeals. This, suggests the VBA's accuracy rate is less than
50%.\9\ Similarly, there is a great disparity between the 93.8%
accuracy rate reported by the Board and the statistics provided by
CAVC.\10\ According to CAVC's numbers, the Board's accuracy rate is 20%
and over 60% of the Board's decisions are remanded or reversed for
errors.\11\
---------------------------------------------------------------------------
\8\ Department of Veterans Affairs FY 2008 Performance and
Accountability Report, p. 8.
\9\ Honoring the Call to Duty: Veterans' Disability Benefits in the
21st Century, Veterans' Disability Benefits Commission, October 2007,
pp. 310, 317; Board of Veterans' Appeals Report of the Chairman, Fiscal
Year 2007, pp. 14,18,19.
\10\ Board of Veterans' Appeals Report of the Chairman, Fiscal Year
2007, p. 3.
\11\ CAVC annual report, FY 2008, subtracting the CAVC's
extraordinary relief decisions from the total merits decisions and
dividing that sum into the decisions affirmed results in a 20%
affirmance rate as contrasted with an over 60% remand or reverse rate
for errors committed at the Board. The remainder of appealed Board
decisions are affirmed in part, dismissed in part, reversed/vacated
and/or remanded in part.
---------------------------------------------------------------------------
3. Lack of Independence
Although the Board functions under a Chairman, who is appointed by
the President and who ``serves at the Assistant Secretary level within
the Department,'' the Board does not function independently of the VBA.
Rather, the Board understands its role as that of a partner to the VBA,
with whom it conducts joint training and holds monthly meetings to
``resolve issues of common concern.'' \12\ Furthermore, the Board's
VLJs are not independent of the VBA. Thus, the Board's staff attorneys
``provide various types of assistance and training to the VARO staff.''
Also, VLJs are ``selected through competitive selection processes''
from the group of BVA attorneys.\13\ The assistance provided and the
dependency and familiarity between the Board and the VBA create a
cooperative environment rather than creating a system where VLJs
objectively judge VARO decisionmaking.
---------------------------------------------------------------------------
\12\ Department of Veterans Affairs 2008 Organizational Briefing
Book, pp. 4,6,42 located at http://www.va.gov/ofcadmin/docs/
vaorgbb.pdf; Board of Veterans' Appeals Report of the Chairman, Fiscal
Year 2007, p. 5.
\13\ Board of Veterans' Appeals Report of the Chairman, Fiscal Year
2007, p. 7,10.
---------------------------------------------------------------------------
C. RECOMMENDED SOLUTIONS
New legislation would ameliorate some of the bastions of the VBA's
appellate process.
1. Streamline the Appeal Process and Utilize Informal Conferences
Currently, after a veteran receives an adverse decision from the
VARO, the veteran must submit two different appeal documents for his
case to be sent to the Board. The first document is called a Notice of
Disagreement, which the veteran files after the VARO's initial
decision. Then, after the VARO issues a Statement of the Case, which
typically regurgitates the initial decision, the veteran must file a VA
Form 9, ``Substantive Appeal,'' before the VARO will send the veteran's
case to the Board. There is unnecessary duplication and, thus
inefficiency in the current process. Therefore, NOVA recommends that 38
U.S.C. Sec. Sec. 7105(a) and 7105A be amended to eliminate the
requirement that a claimant submit a ``substantive appeal'' or a
``formal appeal.'' Also, NOVA recommends that 38 U.S.C.
Sec. Sec. 7105(d) and 7105A(b) be amended to eliminate the requirement
that the VA issue a Statement of the Case. NOVA suggests that the
legislative amendments require Decision Review Officer review of any
case in which a veteran files a Notice of Disagreement. During this
review process, the veteran or his advocate could elect to discuss the
case informally with the DRO or present the veteran's case in a formal
hearing with the DRO. After considering all of the evidence of record,
the DRO would issue a decision affirming, modifying, or reversing the
initial rating decision. If the DRO issues an unfavorable decision, the
veteran could then elect to continue his appeal to the Board without
the need to file another formal request to appeal or withdraw his
appeal. The election to proceed with the appeal should not require any
formal argument or itemization of errors, and the NOD should be read
liberally in the veterans favor.
2. Eliminate Unnecessary Medical Exams
In addition to those legislative changes, NOVA recommends amending
39 U.S.C. Sec. 5125 to eliminate unnecessary medical exams. Currently,
if a veteran submits a favorable medical opinion from his treating
physician to support his claim, the VBA will request that the Veteran's
Health Administration (``VHA'') provide another medical examination--
referred to as a Compensation & Pension (``C&P'') Examination. Thus,
more time is wasted waiting for the scheduling of exams and the
preparation of C&P reports. NOVA suggests the title of Section 5125 be
amended to read ``Acceptance of Reports of VHA and Private Physician
Examinations.'' The body of the statute should be amended to read as
follows: ``For purposes of establishing any claim for benefits under
chapter 11 or 15 of this title [38 U.S.C.S. Sec. Sec. 1101 et seq. or
1501 et seq.], a report of a medical examination administered by a VHA
treating physician or a private physician that is provided by a
claimant in support of a claim for benefits, including a claim for
increased benefits, under that chapter shall be accepted without a
requirement for confirmation by an examination by a physician employed
by the Veterans Health Administration if the report is sufficiently
complete to be adequate for the purpose of adjudicating such claim.''
In addition, Judge Alan G. Lance, Sr., at the CAVC observed in
Crutcher v. Nicholson that VA physicians are obligated to assist a
claimant when they possess the ability to substantiate a claim.\14\
Judge Lance's observation should be codified as a new section, 38
U.S.C. Sec. 5125A. This would ensure that, when a treating VA doctor
has a relevant, favorable opinion, the doctor's opinion is made
available for submission to the VA, thus eliminating the need for the
VBA to request and obtain a separate C&P examination.
---------------------------------------------------------------------------
\14\ See, non precedential case number 03-1025, decided January 24,
2006.
---------------------------------------------------------------------------
3. More BVA Judges
Streamlining the appeal process is the first step in eliminating
the excessive delays veterans face. Changes also need to be made at the
Board itself. The Board needs sufficient funding to hire enough new
VLJs to handle the appeals in a timely manner. Furthermore, the Board
should be vigilant to prevent VLJs from denying requested informal
conferences between the veterans' advocates and the Board's attorneys
or VLJs. There is valid justification for a procedure allowing an oral
request, instead of the written request required by regulation, to
encourage pre-hearing conferences in which the parties could clarify
and narrow the issues on appeal, avoid needless remands, and, thus,
speed the resolution of appeals. (see, 20 CFR Sec. 20.708).
4. Single and Secure Digital File System
As stated above, the VBA's current file system and multiple
electronic claim monitoring systems are inadequate and do not merit
retention. Utilizing one secure digitized C-File and one on-line
computerized tracking system will save time. It will also reduce the
costs associated with creating storing, and shipping paper C-Files.
5. Hiring and Selection of VLJs
At present, VLJs are selected in-house from the attorneys who have
been staff counsel with the Board. 38 U.S.C. Sec. 7101, et seq. should
be amended to recategorize the VLJs as Administrative Law Judges
(``ALJs'') and to require that the Board's ALJs be hired through the
Office of Personnel Management from a pool of qualified attorneys in
the same manner ALJs are hired for other Federal agencies. Similarly,
38 U.S.C. Sec. 7101A should be amended to eliminate the requirement
that VLJs are subject to annual re-certification which makes a VLJs
reappointment dependent upon making what the supervisors consider to be
``the right decision.'' Finally, and consistent with the practice of
other Federal administrative agencies, a claim which is remanded by
CAVC to the Board should be assigned to a VA ALJ different than the one
who originally denied the claim.
6. Separation from the VA
To maintain their independence, the new VA ALJs should maintain
their office space separate and apart from the VA and should not be
involved in helping VARO employees draft rating decisions or SOCs. More
importantly, the VA ALJs should maintain their reputation as an
unbiased appellate body by eliminating the intra-agency partnership
with VBA, OGC and VHA, to include eliminating their monthly meetings.
7. Decision Making
Rather than maintaining the artificial and erroneous accuracy rate
calculation system presently in place, 38 U.S.C. Sec. 7101(d) should be
amended to require the Board to report on the percentage of unfavorable
Board decisions which are appealed and later reversed or remanded in
whole or in part by the CAVC. This will permit an honest assessment of
the Board's accuracy in its decisionmaking. An internal quality control
position reporting directly to the Chairman should be created to
monitor decisionmaking and to especially sample the BVA remands with
the goal of eliminating unnecessary remands. Accurate quality control
to ensure is essential.
8. Evaluation of Production
Presently, VBA employees receive promotions and bonuses based upon
the quantity and not the quality of decisions they make each day. This
creates an incentive for decisionmakers to make quick, easy decisions
to remand a case for further development that is often unnecessary.
Production standards at the VAROs and Board decrease the quality of the
decisions made.\15\ Furthermore, VA decisionmakers should not receive
the same ``work credits'' for remanding an appeal as they would for
making a merits decision. Accuracy in decisionmaking should be
emphasized and rewarded.
---------------------------------------------------------------------------
\15\ See, Department of Veterans Affairs Office of Inspector
General, ``Review of State Variances in VA Disability Compensation
Payments,'' May 19, 2005, pp. 60, 61.
---------------------------------------------------------------------------
______
Responses to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka
to Richard Paul Cohen, Executive Director, National Organization of
Veterans' Advocates, Inc. (NOVA)
Question 1. During the hearing it was suggested that some claims
for benefits can be triaged and rated quickly because they are, for
lack of a better term, ``no brainer'' claims. Can you provide this
Committee with examples of these types of claims?
Response. Claims which can be rated quickly fall into two
categories: (1) those which indisputably should be granted with the
highest possible rating and (2) those which objectively lack merit.
Some examples of meritorious claims which can be quickly granted
include:
claims for service-connected benefits for PTSD by a combat
veteran who is currently being treated for PTSD or who was diagnosed
with PTSD while on active duty;
claims for benefits for a condition which arose while the
veteran was serving on active duty and for which the veteran still
receives treatment;
claims for benefits based on amputated limbs; and
claims which have been substantially developed and are
sufficiently complete to rate.
Some examples of claims which objectively lack merit and which can
be quickly denied include:
claims for benefits where there is no assertion of a
current disability;
claims for benefits which are objectively unreasonable,
such as claims for cancers caused by radio waves emitted by UFOs;
claims for benefits for medical conditions which are
clearly not compensable such as, new claims for disabilities attributed
to tobacco use and claims for refractive errors; and
claims for benefits based on congenital defects which
cannot be aggravated in service, such as color blindness.
Question 2. Some of the common errors identified by Judge Kasold as
resulting in remands from the Court are failure to obtain medical
examinations and opinions and the failure to obtain documents and other
evidence. During Committee oversight visits, a frequent finding is the
failure of VA regional offices to obtain medical examinations and
opinions before denying a claim for service connection. Does the
statute need to be amended to require a medical examination or opinion
before denying an original claim for service-connection?
Response. Yes, the statute needs to be amended to require a medical
examination or opinion before denying an original claim for service-
connection. NOVA suggests that Congress amend 38 U.S.C. Sec. 5103A to
make it clear that the Secretary is required to assist claimants in
properly developing claims by obtaining necessary medical examinations.
As it is currently written, the existing statute--38 U.S.C.
Sec. 5103A(d)--requires the VA to obtain a medical exam when
``necessary to make a decision on the claim'' in connection with a
claim for disability compensation. However, this requirement is
triggered only in cases where the record already contains competent
evidence of a current disability and an indication that the disability
may be associated with active service. Although a recent decision from
the U.S. Court of Appeals for the Federal Circuit interpreted 38 U.S.C.
Sec. 5102A(a)(1) as providing such a requirement in all claims,
clarifying legislation would be help to enforce Congress' original
intent. See Wood v. Peake, 520 F.3d 1345,1348 (Fed. Cir. 2008).
Additionally, legislation requiring a revision of the work credit
system so that VA employees are rewarded for properly-developed claims
and good decisionmaking and penalized for hasty decisions in
undeveloped and underdeveloped claims would drastically increase the
number of claims that are properly developed and subsequently granted,
thereby decreasing appeals and the ensuing backlog of appealed claims.
Question 3. Should the statute be amended so that failure to
provide a medical examination or opinion before denying a claim for
service connection should be considered clear and unmistakable error?
Response. Yes, NOVA recommends that Congress amend 38 U.S.C.
Sec. 5103A so as to designate as clear and unmistakable error (``CUE'')
the failure of the VA to comply with its duty to assist and provide a
medical examination or opinion when required. At present, the failure
of the VA to comply with the duty to assist does not amount to CUE. See
38 CFR Sec. 20.1403(d)(2); Cook v. Principi, 318 F.3d 1334,1341 (Fed.
Cir. 2002). This legislative change, especially if it has a retroactive
effect, would ameliorate the damage done to the claims of unrepresented
veterans who have had valid claims denied solely because the VA failed
to notify and/or assist the veteran in obtaining the evidence needed to
support the claim.
Question 4. If the time for filing a notice of disagreement were
reduced to 180 days, what protections would you recommend for a ``good
cause exception'' to the filing deadline?
Response. It would be a mistake to amend 38 U.S.C. Sec. 7105(b)(1)
to reduce the time to file a notice of disagreement from one year to
180 days. There are at least eight reasons this amendment would be
detrimental to veterans.
First, veterans do not always receive the rating decisions mailed
to them--or at least not in a timely manner. Many times the VA does not
have a veteran's correct or current mailing address, and numerous
errors occur in the Regional Office mailing rooms.
Second, many veterans have serious medical and/or mental health
disabilities which hamper their ability to seek assistance from a
service officer, representative or lawyer. This obstacle becomes even
more difficult for veterans who live in more rural areas and must
travel several hours to obtain representation from the nearest
representative.
Third, after locating a representative, it may take a veteran
several months to attend any necessary medical appointments, obtain
copies of records, and then schedule an appointment with his/her
representative.
Fourth, emotional and psychological factors come into play. When a
claim is denied, this can make the veteran feel as though his
government--the same government he fought for--has denied the claim
because his government does not believe he is telling the truth. These
factors are even more complicated for veterans who suffer from mental
health disabilities. It may take many months of extra time and
inducement by friends and relatives for a veteran to continue with his
claim after the first denial.
Fifth, veterans who are participating in inpatient treatment for
their service-connected disabilities may not receive notice of rating
decisions, mailed to their home address, until many months after the
rating is mailed.
Sixth, to properly prepare a case for an appeal, the veteran and
his or her representative will need to obtain necessary copies of
various documents, such as the VA claims file, official military
personnel file, and current treatment records. This quest for relevant
records can take as long as six months.
Seventh, reviewing all of the newly obtained records and reports
and obtaining additional medical records or an additional medical
opinion can take two or three more months.
Eighth, in situations where a veteran has claims pending at
different levels of the appellate process or multiple claims pending,
the veteran may need to wait six to twelve months or more for a
decision which may impact the necessity to file an appeal for a
separate but related claim.
Therefore, because of the numerous potential impediments to
responding to an unfavorable rating decision within 120 days, there is
good reason to continue the present statutory provision which currently
provides claimants one year to file the notice of disagreement (NOD).
Shortening the statute of limitations for filing an NOD, with the
option of having the limitation abated by a showing of good cause, is
not an effective alternative. Indeed, it will guarantee that a
percentage of valid claims will be denied for failure to timely appeal.
Veterans should not be compelled to rely upon the VA's benevolence in
determining that one or more of the eight factors listed above apply
and constitute good cause for the failure to timely appeal.
If the time for filing a notice of disagreement is reduced to 180
days, then NOVA recommends that a pilot program akin to the Expedited
Claims Process be implemented at a limited number of ROs.
Question 5. You recommended in your testimony to ``eliminate
unnecessary medical exams.'' What oversight measures would you suggest
VA adopt in order to minimize the potential of fraudulent claims filed
if it MUST accept a favorable medical opinion from a veteran's treating
physician to support his claim?
Response. It is NOVA's position that no additional oversight
measures are necessary to minimize the potential of fraudulent claims
if the VA is required to accept favorable medical opinion(s) from a
veteran's treating physician to support a claim. The oversight measures
already in place are sufficient. At present, the VA is obligated to
rate a claim based on the evidence of record, which may be comprised
solely of private medical records, in the event a veteran fails to
report for a VA examination scheduled by the VA in conjunction with an
original claim for compensation. See 38 CFR Sec. 3.655(b). Moreover, in
a recent case, the U.S. Court of Appeals for Veterans Claims opined
that ``most of the probative value of a medical opinion comes from its
reasoning . . . [thus] [i]t is the factually accurate, fully
articulated, sound reasoning for the conclusion . . . that contributes
probative value to a medical opinion.'' Nieves-Rodriguez v. Peake, 22
Vet. App. 295, (2008). It is the weighing of medical opinions in light
of all the medical records and objective medical evidence which guards
against a rating based upon a fraudulent opinion.
Question 6. In your testimony before this Committee, you stated
that, for the represented claimants and veterans, the AMC is a ``black
hole'' because it will not adjudicate any claims where there is
representation.
Can you please clarify what you were talking about since
claimants and veterans represented by VSOs are adjudicated at the AMC?
If you were only referring to veterans and claimants
represented by private attorneys, can you explain why the AMC will not
adjudicate these claims?
Would the process improve, in your mind, if the BVA
properly sent claims that involve the representation by a private
attorney back to the appropriate VARO and not the AMC?
Response. Regarding the operation of the AMC, NOVA's testimony was
referring to attorney representation. Although the AMC will not
adjudicate an attorney-represented claim, the BVA continues to
needlessly remand claims with attorney representation to the AMC. NOVA
understands that the AMC will likewise refuse to adjudicate claims
where a claimant has requested an RO hearing. It makes sense for the
BVA to remand all claims to the Agency of Original Jurisdiction
(``AOJ'') for development and readjudication. Remand to the AOJ makes
even more sense if it is coupled with a redesigned adjudication system
where the person who performed the initial rating will receive the
claim to redevelop and readjudicate.
Chairman Akaka. Thank you very much, Mr. Cohen.
Now we will hear from Mr. Stichman.
STATEMENT OF BARTON F. STICHMAN, JOINT EXECUTIVE DIRECTOR,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
Mr. Stichman. Thank you, Mr. Chairman and Members of the
Committee. The National Veterans Legal Services Program
appreciates this opportunity to address you and address the
questions that are before the Committee today.
One of the major problems in the appellate system at the VA
is what advocates call ``the hamster wheel'' system of justice
in which veterans are constantly having their claims moved from
the regional office to the Board back to the regional office to
the Board to the Court, remanded back to the Board for
additional decisionmaking. That is a major problem in the
system today, and there are four major reasons for that
problem.
The first is premature decisionmaking by the regional
offices. What I mean by that is the regional office makes a
decision prior to gathering all the evidence it is required by
law to gather.
Why does it do that? Because it has a work credit system
that rewards decisionmakers for making decisions quickly
without punishing them for making decisions inaccurately. And
so, that is why over 30 percent of cases are remanded by the
Board to the regional office because they have not gotten the
evidence needed before making the decision.
The second reason for the hamster wheel is the poor
decisionmaking at the Board of Veterans' Appeals. As a number
of witnesses including Judge Kasold have stated, over 70
percent of the decisions of the Board that have been appealed
to the Court have been sent back because the Board made one or
more errors. That is a terrible grade, and that has
consistently been true for the last 14 years.
It has not only been true on Chairman Terry's watch, it has
been true on previous chairman's watches; and nothing changes.
The same mistakes are made time and time again.
They do not explain, the Board doesn't, why they rejected
positive evidence in the record. They do not assess lay
testimony that is submitted by the veteran. They act as if, if
the evidence is not in the service medical records or in the
service personnel records, then despite what the veterans and
witnesses have to say occurred during service, it did not
happen. Those cases are remanded by the Court to the Board
because they didn't assess the credibility of the lay
testimony.
Another reason is duty to assist. Again, while the Board
remands a lot of cases, it does not send back to the regional
office all the cases it should because the Agency has not
gotten the evidence needed to decide the claim in compliance
with the duty to assist.
What is the solution to this at the Board? We believe the
solution, when 14 years have passed and nothing has changed, is
a new system for selection of judges--the one used at most
other administrative agencies. Have administrative law judges
selected based on merit, the way most judges at other agencies
are selected--from outside the system for the most part.
These judges are selected within the system and have the
same attitudes that have been inculcated in the system over the
years, and they just keep making the same mistakes.
A third reason for the hamster wheel is at the Veterans'
Court. They have adopted a rule, in the Best and Mahl cases,
not to address all allegations of error raised by the
appellant.
So, what happens is you appeal. You allege four allegations
of error that the Board made. The Court finds one or the
parties agree on one, and they do not address the other three
because it is quicker to do it that way.
So, the case is sent back to correct the one error, but the
other three--since the Board was not required to change those
errors, the Board agrees with what it did before. And if the
claim isn't granted on remand, then you find yourself appealing
to the Court again and relitigating the same issues that were
fully briefed by the Court to the Court the first time. This
creates more hamster wheel remands and appeals.
Finally, you heard the Chairman of the Board brag that only
7 percent of his decisions were reversed by the Court--only 7,
not 7 percent. The reason for that is the Court has a very
narrow view of what it is allowed to reverse.
You have decisions where the overwhelming state of the
evidence is favorable to the veteran. The Veterans' Court
decides they didn't explain it enough, rather than actually
looking at the evidence and finding that, in the veteran's
case, the Board's decision was clearly erroneous. Instead of
just ending it, granting the benefits, ordering the VA to pay
the benefits, it sends it back for more adjudication due to a
lack of adequate explanation.
That is a problem that is ripe for Congress to try to amend
the scope of review. It tried once. It ought to try again to
encourage the Court to exercise its authority to review
findings of fact with more scrutiny.
Finally, I see I am over my time. I do not have much time
to talk about it, but there is a need for class action
authority.
Prior to the Veterans' Judicial Review Act, veterans could
file class actions and did. The benefit of class actions is
sometimes a large group of claims are affected by the same
legal issue, and if you can resolve all those by a class
action, you do not need multiple adjudication within the VA
system. It can all be decided at one time, rather than
piecemeal.
My testimony describes that further.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Stichman follows:]
Prepared Statement of Barton F. Stichman, Joint Executive Director,
National Veterans Legal Services Program
Mr. Chairman and Members of the Committee: Thank you for the
opportunity to present the views of the National Veterans Legal
Services Program (NVLSP) on legislative and policy changes that may
help expedite the timeliness of the adjudication of appeals of VA
benefit claims without sacrificing accuracy. This testimony focuses on
the two major tribunals that decide appeals of VA benefit claims--the
Board of Veterans' Appeals (BVA) and the U.S. Court of Appeals for
Veterans Claims (CAVC).
NVLSP is a nonprofit veterans service organization founded in 1980.
Since its founding, NVLSP has represented over 1,000 claimants before
the Board of Veterans' Appeals and the Court of Appeals for Veterans
Claims. NVLSP is one of the four veterans service organizations that
comprise the Veterans Consortium Pro Bono Program, which recruits and
trains volunteer lawyers to represent veterans who have appealed a
Board of Veterans' Appeals decision to the CAVC without a
representative. In addition to its activities with the Pro Bono
Program, NVLSP has trained thousands of veterans service officers and
lawyers in veterans benefits law, and has written educational
publications that thousands of veterans advocates regularly use as
practice tools to assist them in their representation of VA claimants.
My testimony today is informed by the frustration and
disappointment in the claims adjudication system experienced by many
disabled veterans and their survivors. They face a number of serious
challenges at both the BVA and the CAVC. As we describe below, there
are several significant problems that cry out for a legislative or
policy fix.
This testimony is divided into two parts. In part I, I discuss the
Hamster Wheel phenomenon. In part II, I discuss the need for class
action authority in veterans cases.
I. THE HAMSTER WHEEL
For many years now, those who regularly represent disabled veterans
before the BVA and CAVC have been using an unflattering phrase to
describe the system of justice these veterans too often face: ``the
Hamster Wheel''. This phrase refers to the following common phenomenon:
multiple decisions are made on the veteran's claim over a period of
years as a result of the claim being transferred back and forth between
the CAVC and the BVA, and the BVA and a VA regional office for the
purpose of creating yet another decision. The net result is that
frustrated veterans have to wait many years before receiving a final
decision on their claims.
There are at least three aspects of the BVA's and CAVC's
decisionmaking process that contribute to the Hamster Wheel phenomenon:
(1) the high error rate that exists in BVA decisionmaking, which delays
the decisionmaking process by requiring disabled veterans to appeal to
the CAVC to correct these errors, which, in turn, leads to further VA
proceedings on remand; (2) the policy adopted by the CAVC in 2001 in
Best v. Principi, 15 Vet. App. 18, 19-20 (2001) and Mahl v. Principi,
15 Vet. App. 37 (2001); and (3) the CAVC's reluctance to reverse
erroneous findings of fact made by the Board of Veterans' Appeals.
A. Contributor #1 to the Hamster Wheel: the High Error Rate at Board of
Veterans' Appeals
The most prominent fact in assessing the performance of the Board
of Veterans' Appeals is the track record that Board decisions have
experienced when an independent authority has examined the soundness of
these decisions. Congress created an independent authority that
regularly performs this function--the U.S. Court of Appeals for
Veterans Claims. Each year, the Court issues a report card on BVA
decisionmaking. This annual report card comes in the form of between
1,000 and 2,800 separate final judgments issued by the Court. Each
separate final judgment incorporates an individualized judicial
assessment of the quality of a particular one of the 35,000 to 40,000
decisions that the Board issues on an annual basis.
For more than a decade, the Court's annual report card of the BVA's
performance has been remarkably consistent. The 14 annual report cards
issued over the last 14 years yields the following startling fact: of
the 23,173 Board decisions that the Court individually assessed over
that period (that is, from FY 1995 to FY 2008), the Court set aside a
whopping 76.4% of them (that is, 17,698 individual Board decisions). In
each of these 17,698 cases, the Court set aside the Board decision and
either remanded the claim to the Board for further proceedings or
ordered the Board to award the benefits it had previously denied. In
the overwhelming majority of these 17,698 cases, the Court took this
action because it concluded that the Board decision contained one or
more specific legal errors that prejudiced the rights of the VA
claimant to a proper decision.
By any reasonable measure, the Court's annual report card on the
Board's performance has consistently been an ``F''. But an equally
startling fact is that despite a consistent grade of ``F'' for each of
the last 14 years, no effective action has ever been taken by the
management of the BVA to improve the Board's poor performance. Year
after year, the Court's report card on the Board has reflected the same
failing grade.
To formulate an effective plan to reform the Board and
significantly improve its performance requires an understanding of the
underlying reasons that the Board has consistently failed in its
primary mission (i.e., to issue decisions on claims for benefits that
comply with the law). Over the last 15 years, NVLSP has reviewed over
10,000 individual Board decisions and thousands of Court assessments of
these decisions. Based on this review, NVLSP has reached three major
conclusions, which are set forth below.
1. The Board Keeps Making the Same Types of Errors Over and
Over Again
The decisions of the Board and the final judgments of the Court
reflect that the Board keeps making the same types of errors over time.
For example, one common error involves the type of explanation the
Board is required to provide in its written decisions. When Congress
enacted the Veterans' Judicial Review Act of 1988, it expanded the type
of detail that must be included in a Board decision to enable veterans
and the Court of Appeals for Veterans Claims to understand the basis
for the Board's decision and to facilitate judicial review. See 38
U.S.C. Sec. 7104(d).
The Board has consistently been called to task by the Court for
faulty explanations that violate 38 U.S.C. Sec. 7104(d). These
violations fall into several common patterns. One pattern is that the
Board often does not assess or explain why it did not credit positive
medical evidence submitted by the claimant from a private physician,
while at the same time expressly relying on a negative opinion provided
by a VA-employed physician. The problem here is not that the Board
decided to believe the VA physician and disbelieve the private
physician. The problem is that the Board never explained its analysis
(if indeed, it had one) of the private physician's opinion in the first
place.
Another common pattern involves lay testimony submitted by the
claimant and other witnesses. Despite the statutory and regulatory
obligation (38 U.S.C. Sec. 5107(b) and 38 CFR Sec. 3.102) to give the
veteran the benefit of the doubt in adjudicating a claim for benefits,
in many of the Board decisions that have been set aside by the Court,
the Veterans Law Judge has refused in his or her written decision to
assess, no less credit, this lay testimony. The decisions of the
Federal Circuit and the Court of Appeals for Veterans Claims in
Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), and
Kowalski v. Nicholson 19 Vet. App. 171, 178 (2005) chronicle this
refusal to analyze the validity of lay testimony.
Sometimes the lay testimony that the Board refuses to analyze
involves what happened during the period of military service. The
underlying philosophy in these Board's decisions appears to be: ``If
the event is not specifically reflected in the existing service medical
or personnel records, we don't need to assess the lay testimony''--no
matter what lay testimony has been submitted.
Sometimes this lay testimony involves the symptoms of disability
that the veteran experienced following military service. Despite the
legal obligation to consider lay evidence attesting to the fact that
veteran continuously experienced symptoms of disability from the date
of discharge to the present, the Board often denies the claim on the
unlawful ground that the evidence in the record does not show that the
veteran was continuously provided medical treatment for the disability,
without assessing the lay evidence of continuity of symptomatology.
Another common Board error is to prematurely deny the claim without
ensuring that the record includes the evidence that the agency was
required to obtain to fulfill its obligation to assist the claimant in
developing the evidence necessary to substantiate the claim. The
statutory duty placed by Congress on the VA to provide such assistance
is a fundamental cornerstone of the nonadversarial pro-claimant
adjudicatory process. Unfortunately, the Board often fails to honor
this very important obligation.\1\
---------------------------------------------------------------------------
\1\ Ironically, one reason for premature denials by the Board is
the campaign launched by Board management to avoid ``unnecessary
remands'' from the Board to the regional offices to correct prejudicial
errors made by the regional office in failing to obtain the evidence
necessary to decide the claim. If this campaign truly influenced the
Board to avoid ``unnecessary'' remands, NVLSP would applaud the effort
because it would help eliminate the ``hamster wheel'' phenomenon that
plagues the VA adjudication process. But the problem is that this
campaign has promoted Board decisions that prematurely deny the claim
without a necessary remand to the regional office to obtain the
evidence that the law required, but the RO failed to obtain, before the
case ever reached the BVA. This unlawful failure to remand actually
contributes to the ``hamster wheel'' phenomenon by forcing the claimant
to appeal to the Court, which, after a year or two, sets the Board
decision aside with instructions for the Board to do what it should
have done years earlier--send the case back to the RO to obtain
additional evidence.
---------------------------------------------------------------------------
2. Board Management Does Not Downgrade the Performance of a
Veterans Law Judge for Making These Types of Errors
One method of eliminating repetitive types of Board errors would be
if Board management downgraded the performance of Veterans Law Judges
for repeatedly violating deeply embedded legal principles. This has not
been done.
The problem is not that Board management fails to assess the
performance of the Board's Veterans Law Judges. Board management does
conduct such assessments. The problem lies in Board management's
definition of poor performance. As the Chairman of the Board stated in
his FY 2006 Report, Board management assesses the accuracy of Board
decisionmaking and its assessment is that Board decisions are 93%
accurate.
There obviously is a major disconnect between the annual report
card prepared by the Court of Appeals for Veterans Claims and the
annual report card prepared by Board management.\2\ How can it be that
year in and year out the Court consistently concludes that well over
50% of the Board decisions contain one or more specific legal errors
that prejudiced the rights of the VA claimant to a proper decision,
while at the same time Board management concludes that only 7% of Board
decisionmaking is inaccurate?
---------------------------------------------------------------------------
\2\ Because the only BVA decisions that the Court assesses are
those appealed to the Court by a VA claimant, the decisions the Court
reviews are self-selected by VA claimants. They do not represent a true
random sample of BVA decisionmaking. Thus, it does not necessarily
follow that the Board's overall error rate is 77.7%.
On the other hand, the Court's report cards undoubtedly indicate
that the Board's overall error rate is quite high. In NVLSP's
experience, many of the BVA decisions that are not appealed to the
Court contain the same types of errors as those contained in the
decisions that are appealed to the Court. Some veterans do not appeal
these flawed decisions because after years of pursuing their claim,
they simply give up.
---------------------------------------------------------------------------
NVLSP understands that there is a simple answer to this question.
Board management simply does not count as ``inaccurate'' many of the
types of prejudicial legal errors that have forced the Court to set
aside the Board decision and place the veteran on the well-known
``hamster wheel'' of remands and further administrative proceedings. In
this way, Board management actually promotes, rather than discourages,
these errors of law.
NVLSP'S RECOMMENDATIONS
Recommendation 1: Adopt the Long-Standing Process Used and
the Protections Afforded to Administrative Judges
Who Adjudicate Disputes in Other Federal Agencies.
NVLSP believes that one of the major steps that Congress should
take to reform the Board and significantly improve its performance is
to change the methodology used to select the individuals who adjudicate
appeals at the Board of Veterans Appeals. These individuals, called
Veterans Law Judges (VLJs), are usually long-time VA employees who are
promoted to this office from within the agency. By the time they become
a VLJ, they often have adopted the conventional adjudicatory philosophy
that has long held sway at the VA--an adjudicatory philosophy that
underlies the failing grade assigned by the Court. Moreover, Veterans
Law Judges do not enjoy true judicial independence.
In the Federal administrative judicial system outside the BVA, most
judges are administrative law judge (ALJs). An ALJ, like a VLJ,
presides at an administrative trial-type proceeding to resolve a
dispute between a Federal Government agency and someone affected by a
decision of that agency. ALJs preside in multi-party adjudication as is
the case with the Federal Energy Regulatory Commission or simplified
and less formal procedures as is the case with the Social Security
Administration.
The major difference between Federal ALJs and the VLJs that serve
on the Board of Veterans' Appeals is that ALJs are appointed under the
Administrative Procedure Act of 1946 (APA). Their appointments are
merit-based on scores achieved in a comprehensive testing procedure,
including an 4-hour written examination and an oral examination before
a panel that includes an OPM representative, American Bar Association
representative, and a sitting Federal ALJ. Federal ALJs are the only
merit-based judicial corps in the United States.
ALJs retain decisional independence. They are exempt from
performance ratings, evaluation, and bonuses. Agency officials may not
interfere with their decisionmaking and administrative law judges may
be discharged only for good cause based upon a complaint filed by the
agency with the Merit Systems Protections Board established and
determined after an APA hearing on the record before an MSPB ALJ. See
Butz v. Economou, 438 U.S. 478, 514 (1978).
There are many attorneys who have never been employed by the VA who
are familiar with veterans benefits law and who are eminently qualified
to serve as an administrative judge at the Board of Veterans' Appeals.
Moreover, while use of the ALJ process may not always result in the
selection of an individual with a great deal of experience in veterans
benefits law, it should not take a great deal of time for someone
without such experience to become proficient. The experience of the
many judges who have been appointed to the Court of Appeals for
Veterans Claims without prior experience in veterans benefits law
attests to this proposition. NVLSP believes the likelihood of improved
long-term performance of a judge selected through the ALJ process
greatly exceeds whatever loss in short-term productivity may result if
someone who is not steeped in veterans benefits law happens to be
selected.
Recommendation 2: The Criteria Used in, and the Results of
the Evaluation System of VLJs Employed by Board
Management Should Be Publicly Available and
Reported to Congress.
This recommendation may not be necessary if Congress adopts the
first recommendation. But if Congress does not embrace the ALJ system
for the BVA, it should at least require Board management to make
publicly available the details of the system it employs for evaluating
and rewarding the performance of VLJs and the results of the evaluation
as applied to individual VLJs. When the evaluation system employed by
Board management results in the conclusion that 93% of all Board
decisions are accurate, it is plain that the evaluation system suffers
from serious defects. Oversight of this system requires that it be made
publicly available and reported to Congress.
B. Contributor #2 to the Hamster Wheel: Best and Mahl
In Best and Mahl, the Court of Appeals for Veterans Claims held
that when it concludes that an error in a Board of Veterans' Appeals
decision requires a remand, the Court generally will not address other
alleged errors raised by the veteran. The CAVC agreed that it had the
power to resolve the other allegations of error, but announced that as
a matter of policy, the Court would ``generally decide cases on the
narrowest possible grounds.''
The following typical scenario illustrates how the piecemeal
adjudication policy adopted by the CAVC in Best and Mahl contributes to
the Hamster Wheel phenomenon:
after prosecuting a VA claim for benefits for three years,
the veteran receives a decision from the Board of Veterans' Appeals
denying his claim;
the veteran appeals the Board's decision within 120 days
to the CAVC, and files a legal brief contending that the Board made a
number of different legal errors in denying the claim. In response, the
VA files a legal brief arguing that each of the VA actions about which
the veteran complains are perfectly legal;
then, four and a half years after the claim was filed, the
Central Legal Staff of the Court completes a screening memorandum and
sends the appeal to a single judge of the CAVC. Five years after the
claim was filed, the single judge issues a decision resolving only one
of the many different alleged errors briefed by the parties. The single
judge issues a written decision that states that: (a) the Board erred
in one of the respects discussed in the veteran's legal briefs; (b) the
Board's decision is vacated and remanded for the Board to correct the
one error and issue a new decision; (c) there is no need for the Court
to resolve the other alleged legal errors that have been fully briefed
by the parties because the veteran can continue to raise these alleged
errors before the VA on remand.
on remand, the Board ensures that the one legal error
identified by the CAVC is corrected, perhaps after a further remand to
the regional office. But not surprisingly, the Board does not change
the position it previously took and rejects for a second time the
allegations of Board error that the CAVC refused to resolve when the
case was before the CAVC. Six years after the claim was filed, the
Board denies the claim again;
120 days after the new Board denial, the veteran appeals
the Board's new decision to the CAVC, raising the same unresolved legal
errors he previously briefed to the CAVC.
the Hamster Wheel keeps churning . . .
The piecemeal adjudication policy adopted in Best and Mahl may
benefit the Court in the short term. By resolving only one of the
issues briefed by the parties, a judge can finish an appeal in less
time than would be required if he or she had to resolve all of the
other disputed issues, thereby allowing the judge to turn his or her
attention at an earlier time to other appeals. But the policy is
myopic. Both disabled veterans and the VA are seriously harmed by how
Best and Mahl contribute to the Hamster Wheel. Moreover, the CAVC may
not be saving time in the long run. Each time a veteran appeals a case
that was previously remanded by the CAVC due to Best and Mahl, the
Central Legal Staff and at least one judge of the Court will have to
duplicate the time they expended on the case the first time around by
taking the time to analyze the case for a second time. Congress should
amend Chapter 72 of Title 38 to correct this obstacle to justice.
C. Contributor #3 to the Hamster Wheel: the Court's Reluctance to
Reverse Erroneous BVA Findings of Fact
Over the years, NVLSP has reviewed many Board decisions in which
the evidence on a critical point is in conflict. The Board is obligated
to weigh the conflicting evidence and make a finding of fact that
resolves all reasonable doubt in favor of the veteran. In some of these
cases, the Board's decision resolves the factual issue against the
veteran even though the evidence favorable to the veteran appears to
strongly outweigh the unfavorable evidence.
If such a Board decision is appealed to the CAVC, Congress has
authorized the Court to decide if the Board's weighing of the evidence
was ``clearly erroneous.'' But the Court interprets the phrase
``clearly erroneous'' very narrowly. The Court will reverse the Board's
finding on the ground that it is ``clearly erroneous'' and order the VA
to grant benefits in only the most extreme of circumstances. As the
CAVC stated in one of its precedential decisions: ``[t]o be clearly
erroneous, a decision must strike us as more than just maybe or
probably wrong; it must . . . strike us as wrong with the force of a
five-week-old, unrefrigerated dead fish . . . To be clearly erroneous,
then, the [decision being appealed] must be dead wrong . . .'' Booton
v. Brown, 8 Vet. App. 368, 372 (1995) (quoting Parts & Electric Motors,
Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
The net result of the Court's extreme deference to the findings of
fact made by the Board is that even if it believes the Board's weighing
of evidence is wrong, it will not reverse the Board's finding and order
the grant of benefits; instead, it will typically vacate the Board
decision and remand the case for a better explanation from the Board as
to why it decided what it did--thereby placing the veteran on the
Hamster Wheel again. Congress should amend the Court's scope of review
of Board findings of fact in order to correct this problem.
II. INJUSTICE AND INEFFICIENCY DUE TO THE LACK OF CLASS ACTION
AUTHORITY
The second major set of issues we would like to address involves
the injustice and inefficiency that derives from the fact that Federal
courts do not currently have clear authority to certify a veteran's
lawsuit as a class action. When Congress enacted the Veterans' Judicial
Review Act (VJRA) in 1988, it inadvertently erected a significant
roadblock to justice. Prior to the VJRA, U.S. district courts had
authority to certify a lawsuit challenging a VA rule or policy as a
class action on behalf of a large group of similarly situated veterans.
See, e.g., Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404
(N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F.
Supp. 34 (D.P.R. 1993). If the district court held that the challenged
rule or policy was unlawful, it had the power to ensure that all
similarly situated veterans benefited from the court's decision.
But the ability of a veteran or veterans organization to file a
class action ended with the VJRA. In that landmark legislation,
Congress transferred jurisdiction over challenges to VA rules and
policies from U.S. district courts (which operate under rules
authorizing class actions) to the U.S. Court of Appeals for the Federal
Circuit and the newly created U.S. Court of Appeals for Veterans Claims
(CAVC). In making this transfer of jurisdiction, Congress failed to
address the authority of the Federal Circuit and the CAVC to certify a
case as a class action. As a result of this oversight, the CAVC has
ruled that it does not have authority to entertain a class action (see
Lefkowitz v. Derwinski, 1 Vet. App. 439 (1991), and the Federal Circuit
has indicated the same. See Liesegang v. Secretary of Veterans Affairs,
312 F.3d 1368, 1378 (Fed. Cir. 2002).
The lack of class action authority has led to great injustice and
waste of the limited resources of the VA and the courts. To demonstrate
the injustice and waste that result from the unavailability of the
class action mechanism, we have set forth below an illustrative case
study taken from real events.
Case Study: The Battle Between the VA and Navy ``Blue Water'' Veterans
This case study involves the multi-year old battle that was fought
between the VA and thousands of Vietnam veterans who served on ships
offshore the Republic of Vietnam during the Vietnam War (hereinafter
referred to as ``Navy blue water veterans''). In section A below, we
summarize the multi-year battle that was waged without the benefit of a
class action mechanism. In section B, we describe the more efficient
and just way the battle would have been waged if a class action
mechanism had been available. Finally, in section C, we describe how
the battle would have inevitably resulted in dissimilar VA treatment of
similarly situated veterans even if the Blue Water Navy veterans had
won the battle.
A. Description of the Multi-Year Battle
From 1991 to 2002, the VA granted hundreds, if not thousands of
disability claims filed by Navy blue water veterans suffering from one
of the many diseases that VA recognizes as related to Agent Orange
exposure. These benefits were awarded based on VA rules providing that
service in the waters offshore Vietnam qualified the veteran for the
presumption of exposure to Agent Orange set forth in 38 U.S.C.
Sec. 1116.
In February 2002, VA did an about face. It issued an unpublished VA
MANUAL M21-1 provision stating that a ``veteran must have actually
served on land within the Republic of Vietnam . . . to qualify for the
presumption of exposure to'' Agent Orange. As a result, all pending and
new disability claims filed by Navy blue water veterans for an Agent
Orange-related disease were denied unless there was proof that the
veteran actually set foot on Vietnamese soil.
In November 2003, the CAVC convened a panel of three judges and set
oral argument to hear the appeal of Mrs. Andrea Johnson, the surviving
spouse of a Navy blue water veteran who was denied service-connected
death benefits (DIC) by the Board of Veterans' Appeals on the ground
that her deceased husband, who died of an Agent Orange-related cancer,
had never set foot on the land mass of Vietnam. See Johnson v.
Principi, U.S. Vet. App. No. 01-0135 (Order, Nov. 7, 2003). The legal
briefs filed by Mrs. Johnson's attorneys challenged the legality of the
2002 Manual M21-1 provision mentioned above. Thus, it appeared that the
CAVC would issue a precedential decision deciding the legality of VA's
set-foot-on-land requirement.
Six days before the oral argument, however, the VA General
Counsel's Office made the widow an offer she could not refuse: full DIC
benefits retroactive to the date of her husband's death--the maximum
benefits that she could possibly receive. Because Mrs. Johnson did not
and could not file a class action, once she signed the VA's settlement
agreement, the oral argument was canceled, the Court panel convened to
hear the case was disbanded, and the appeal was dismissed. Buying off
the widow allowed the VA to continue for the next three years to deny
disability and DIC benefits to Navy blue water veterans and their
survivors based on VA's new set-foot-on-land rule.
Some Navy blue water veterans and survivors who were denied
benefits by a VA regional office based on the 2002 rule gave up and did
not appeal the RO's decision. Some appealed the RO's decision to the
Board of Veterans' Appeals, which affirmed the denial. Some of those
who received a BVA denial gave up and did not appeal the BVA's denial
to the CAVC. And some of those who were denied by the RO and the BVA
did not give up and appealed to the CAVC.
One of those who doggedly pursued his disability claim all the way
to the CAVC was former Navy Commander Jonathan L. Haas. He filed his
appeal in March 2004. The CAVC ultimately convened a panel of the Court
and scheduled oral argument for January 10, 2006 to decide Commander
Haas' challenge to VA's set-foot-on-land rule. This time, however, the
VA did not offer to settle. On August 16, 2006, a panel of three judges
unanimously ruled that VA's 2002 set-foot-on-land requirement was
illegal. See Haas v. Nicholson, 20 Vet. App. 257 (2006).
But this did not end the battle between the VA and Navy blue water
veterans. In October 2006, the VA appealed the decision in Haas to the
U.S. Court of Appeals for the Federal Circuit, which reversed the
CAVC's decision. Haas petitioned the U.S. Supreme Court, which denied
the petition to hear the case last month.
Not all battles of this type result in a VA victory. Sometimes, the
courts issue a final decision ruling that the VA has interpreted the
law improperly for a long period of time. The injustice due to the lack
of class action authority becomes apparent if one assumes that the Navy
blue water veterans had ultimately prevailed in its battle with the
VA--an assumption we make for the purposes of the discussion below.
B. How This Battle Would Have Been Waged If A Veteran Could File a
Class Action
Compare the true events described above with how the battle between
the VA and Navy blue water veterans would have been coordinated if a
Federal court (the Federal Circuit or the CAVC) had authority to
certify a case as a class action on behalf of similarly situated VA
claimants. Years ago, Mrs. Johnson could have asked the Court with
class action authority to certify her lawsuit as a class action on
behalf of the following class members: (1) Navy blue water veterans who
(a) have filed or henceforth file a VA disability claim based on an
Agent Orange-related disease and (b) never set foot on the land mass of
Vietnam and (2) all surviving family members who filed or henceforth
file a DIC claim based on the death of such a Navy blue water veteran
from an Agent Orange-related disease.
If the Court certified Mrs. Johnson's lawsuit case as a class
action, the VA would not have been able to end the case by buying her
off. Class actions cannot be dismissed merely because one class member
is granted benefits. The Court could then have ordered the VA to keep
track of, but not decide, the pending claims of all class members until
the parties filed their briefs and the Court issued an opinion deciding
the legality of VA's set-foot-on-land requirement. This action would
have conserved the limited claims adjudication resources of the VA by
allowing the agency to adjudicate other claims while the class action
was pending. What actually occurred instead is that the regional
offices and the Board expended scarce resources adjudicating and
denying thousands of claims filed by Navy blue water veterans during
the period from 2002 to the fall of 2006, when the VA issued a
moratorium on deciding claims filed by Blue Water Navy veterans when
the CAVC ruled in favor of veteran Haas.
This action would also have conserved the resources of thousands of
disabled class members and their representatives. They would not have
to complete and submit notices of disagreement, substantive appeals
forms, and responses to VA correspondence in order to keep their claims
alive.
Then, after the Court resolved the legality of VA's set-foot-on-
land requirement, it could act to ensure that all of the pending claims
filed by class members were uniformly and promptly decided by the VA in
accordance with the Court's decision. And all of this would have
occurred well before January 2009 because Mrs. Johnson's earlier case
would have led to the key Court decision, not the later filed case of
Commander Haas.
C. Why this Battle Would Have Inevitably Resulted In Dissimilar
Treatment of Similarly Situated Disabled Veterans and Their
Survivors
By definition, all of the Navy blue water veterans and their
survivors who have been denied benefits due to the VA's set-foot-on-
land rule are suffering from, or are survivors of a veteran who died
from, one of the following diseases that the VA recognizes as related
to Agent Orange exposure: soft-tissue sarcomas, Hodgkin's disease, lung
cancer, bronchus cancer, larynx cancer, trachea cancer, prostate
cancer, multiple myeloma, chronic lymphocytic leukemia, and diabetes
mellitus (Type 2). These are seriously disabling, often fatal diseases.
Assume that the Federal Circuit and the Supreme Court reached a
different result. Assume that these courts agreed with the unanimous
panel of the CAVC and affirmed its ruling that VA's set-foot-on-land
requirement is unlawful. The VA, upon issuance of a final court
decision, would lift its 2006 moratorium, and orders the ROs and BVA to
decide all of the claims subject to the moratorium and belatedly pay
these disabled war veterans and their survivors--to the extent that
they are still alive--the many-years-worth of retroactive disability or
death benefits they were long ago denied due to VA's set-foot-on-land
requirement.
Even if all this were done, the fact would remain that hundreds, if
not thousands of similarly situated Navy blue water veterans and their
survivors would never receive the benefits that those whose claims were
subject to the moratorium would receive. That is because VA's denial of
their claims for disability or death benefits for an Agent Orange-
related disease became final before the VA instituted a moratorium. To
be specific, the following similarly situated VA claimants not subject
to the VA's moratorium and will never receive benefits based on their
claims:
Navy blue water veterans who filed a disability claim and
survivors of Navy blue water veterans who filed a DIC claim that was
denied by a VA regional office based on its set-foot-on-land rule, and
who either
did not file a notice of disagreement with the RO
decision during the one-year appeal period; or
filed a timely notice of disagreement, but failed to file
a timely substantive appeal to the Board of Veterans Appeal; or
filed a timely notice of disagreement and a timely
substantive appeal, received a decision from the Board of Veterans'
Appeals denying their claim based on VA's set-foot-on-land rule, and
failed to file a timely appeal with the CAVC.
The number of these similarly situated claimants is likely to be
high. Veterans with seriously disabling diseases often give up on their
claim when the VA tells them that they are not entitled to the benefits
they seek. Their disabilities deplete their energy and their resources.
Fighting the VA bureaucracy can seem a very daunting task to a veteran
suffering from cancer. Plus, they are not lawyers and are not familiar
with the legal authorities relied upon the CAVC in Haas. When the VA
tells them they are not entitled to benefits because they did not set
foot on land in Vietnam, they often believe that the VA must know what
it is doing. Thus, many of these disabled veterans simply give up and
don't appeal their cases all the way to the CAVC.
If the Federal Circuit and Supreme Court had ruled in the favor of
the Navy blue water veterans, no law would have required the VA to use
their computer systems to identify similarly situated claimants who
were not included in the VA's 2006 moratorium. No law requires the VA
to notify these similarly situated claimants about the Court's
decision. And even if these similarly situated claimants somehow found
out about the Court decision and reapplied, the VA would refuse to pay
them the retroactive benefits that it paid to the claimants subject to
the 2006 moratorium because the VA would conclude that its previous
final denial of the claim--which occurred before the Haas decision--was
not the product of ``clear and unmistakable error.''
Thus, the unavailability of a class action mechanism would have
doomed the claims of all similarly situated Navy blue water veterans
and their survivors who were not part of the VA's 2006 moratorium.
Legislative action is needed to ensure that unjust situations like this
do not occur.
______
Response to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka to
Barton F. Stichman, Joint Executive Director, National Veterans Legal
Services Program
Question 1. During the hearing it was suggested that some claims
for benefits can be triaged and rated quickly because they are, for
lack of a better term, ``no brainer'' claims. Can you provide this
Committee with examples of these types of claims?
Question 2. Some of the common errors identified by Judge Kasold as
resulting in remands from the Court are failure to obtain medical
examinations and opinions and the failure to obtain documents and other
evidence. During Committee oversight visits, a frequent finding is the
failure of VA regional offices to obtain medical examinations and
opinions before denying a claim for service connection. Does the
statute need to be amended to require a medical examination or opinion
before denying an original claim for service-connection?
Question 3. Should the statute be amended so that failure to
provide a medical examination or opinion before denying a claim for
service connection should be considered clear and unmistakable error?
Question 4. If the time for filing a notice of disagreement were
reduced to 180 days, what protections would you recommend for a ``good
cause exception'' to the filing deadline?
[Mr. Stichman's responses were not received as of press
time.]
Chairman Akaka. Thank you very much, Mr. Stichman.
Mr. Baker and Mr. Stichman, do you agree with Mr. Cohen
that the Federal Circuit serves some value in the appellate
process and should not be removed?
Mr. Baker?
Mr. Baker. The DAV does agree with him. We do not believe
that should be removed.
The issue has been presented quite recently. We have not
had a chance to discuss it in great detail, but we did briefly
discuss it, and we would be opposed to that type of situation.
Chairman Akaka. Mr. Stichman?
Mr. Stichman. I also agree that the Federal Circuit serves
a very important purpose. Let me illustrate that with an
example.
In the nineties, the Veterans' Court ruled that not all
veterans had the right to the duty to assist them in getting
evidence (the VA duty to assist). And they ruled, wrongly in my
view and wrongly in the view of many others, that the veteran
had to come forth with some medical evidence on their own in
order to earn the right to VA assistance. That unfortunate
ruling was true for many years.
Finally, it was appealed to the Federal Circuit which
decided to convene en banc, the whole Court of the Federal
Circuit, to review that decision. I believe they were going to
strike that down when Congress came to the rescue before the
Federal Circuit needed to decide the case and passed the
Veterans Claims Assistance Act (the VCAA), which basically
repealed the Court's case law.
Now sometimes you can rely on Congress to come in. It takes
a while. But the Federal Circuit, that additional layer, it
does not review a lot of cases, but it is very important. It
increases the quality of the system of justice.
Chairman Akaka. Thank you.
I asked Chairman Terry this a moment ago, and I would now
like to hear from each of you. What difference would it make if
the time period for filing a notice of disagreement was reduced
from 1 year to 180 days?
Mr. Baker?
Mr. Baker. We believe it would simply add to the efficiency
in the process. DAV is looking at small changes in various
places that have a large impact with no expenditures if we can
get there.
We believe that enough changes like that in the appellate
process, which there is room for, and changes like that in the
initial appeals process, which there is room for, if many of
those changes were implemented, that one change is simply part
of that to make the entire system much more streamlined.
We do not know if it would cut down the number of appeals.
That is obviously not our goal. We want the system to flow
better.
As far as Senator Burr's question to the other panel, when
he asked if it is reducing benefits, we do not believe so,
because right now a veteran would have to fill out about two
sentences on a piece of paper and mail it in. Or, call up his
rep and indicate that he disagrees or she disagrees with the
decision. Or, go into a regional office and do the same thing:
call the VA if they are following their intricate roles and
fill out a report of contact and state they disagree with the
decision. So, all these different methods, and they have 6
months to do it.
So, this is something that takes a very minute period of
time that you have 6 months to do.
That appellate period is cut down by 2 months to go from
the Board to the Court and then cut down by another 2 months to
go from the Veterans' Court to the Federal Circuit. So, you are
still allowing an extra 60 days at each appellate level,
starting with the initial appellate level being the longest
period.
We simply think it would be a good move without taking
anything away from veterans.
Chairman Akaka. Mr. Cohen?
Mr. Cohen. We are not sure because one of the problems that
we see with this is very similar to what is going on with the
expedited claims process. It is an initiative pilot project to
see if the time to resolve claims could be reduced, but it
imposes no deadlines upon the VA. All the deadlines are imposed
upon the veterans, upon the claimants.
This 1 year time period is not something that is required.
In other words, it is not required that the veteran take 1 year
to put the notice of disagreement in place.
But there are situations where the notice doesn't get to
the veteran until months later, where the veteran wants a
service representative to help them with putting in a notice of
disagreement or an attorney to help them put in a notice of
disagreement. And the first thing the representative said is: I
will need to look at your claims file because I need to know if
there are other pending claims here that need to be in this
notice of disagreement. I just cannot go by what you said or
what the decision is.
If you have a shorter period, the likelihood of being able
to get the claims file to review, to get the medical evidence
to review before putting in the notice of disagreement and
actually putting in a meaningful notice of disagreement, the
likelihood that that happens is shortened.
The way to reduce time in the system is not to reduce time
on the back of the veteran, but there are time periods that are
in there because of fumbling around to develop the claim. If
veterans were told what they needed up front and were asked to
work as partners with the VA, we could develop these claims
quicker and reduce the time rather than putting time limits on
the veterans.
Chairman Akaka. Mr. Stichman?
Mr. Stichman. I would like to commend DAV for its
testimony. They have a number of interesting and perhaps valid
suggestions for change. I haven't had an opportunity to review
all of them, but with regard to the reduction of the time
within which to file a notice of disagreement I would have to
think about that more.
I worry, as Senator Burr alluded to, do all people have
enough time to consider what to do in filing a notice of
disagreement. Many accredited service representatives for the
service organizations have a tremendous number of claims
assigned to them to represent--some, close to 1,000 per
individual service officer. So the veteran is often left
without hands-on service for a long period of time.
And so, I would worry, and I need more time to think about
whether they would be hurt by not having the full year.
Chairman Akaka. Thank you very much.
Mr. Burr.
Senator Burr. Well, let me thank all three of you for your
testimony.
I am going to ask you to do something rather unique for me;
not today, but after you to go from this hearing. I would like
you to take a clean piece of paper and I would like you to
design the system as if we were standing up a process of
processing claims and allowing for appeals. I would like you to
design for us what you think that system would look like today.
In other words, do not build it based upon the faults you
find with the existing system. Do it from the standpoint of
what you said, how does it flow right?
I understand exactly where DAV is coming from, from the
standpoint of the 1 year. I understand where the reservations
might be from the standpoint of making sure that every veteran
has the full time that they need to seek help in filing what it
is they need.
I also understand from a reviewer's standpoint, if every
time you send something out you know it might be up to a year,
then you are sort of putting something back even if it came in
30 days. The likelihood is you are not inclined to pull that
file out in 30 days and start processing it because you have
sequenced your flow of cases in a way that you will get back to
that at a certain timeframe.
So, I understand the need. I also understand the results of
what a 1-year timeframe would do to the flow, and that is the
built-in design of the flow.
If you will, take a clean piece of paper, design us a
system. I would like to see how different each one of the three
might be. I would also like to see how different it would be
from where we are today.
[A response received from Mr. Cohen of NOVA follows:]
Responses to Request Arising During the Hearing from Hon. Richard Burr
to Richard Paul Cohen, Executive Director, National Organization of
Veterans' Advocates, Inc. (NOVA)
In response to your request for ideas to re-think and re-design the
VBA, attached are NOVA's suggestions.
RECOMMENDATIONS FOR REMAKING THE VBA
Summary
NOVA's recommendations include utilizing secure, electronic files;
decentralizing rating and appellate functions; and implementing a user-
friendly, simplified system which puts the veteran first.
Specific recommendations
NOVA's plan to remake the Veterans' Benefits Administration
contemplates an organization dedicated to being user-friendly,
considerate of the needs and limitations of veterans when adjudicating
claims, and believing that veterans generally file meritorious claims
for VA benefits. Fundamental to creating a system which truly does put
veterans first is ensuring that veterans and their families receive
actual assistance in the development of their claims and that fully-
developed claims are properly paid regardless of whether the veteran is
represented or proceeding
pro se.
First and foremost, there must be a system which allows disabled
veterans and their families to file simplified claim forms, participate
in hearings and review claim files without having to travel four or
more hours to participate in the adjudication of their claims. Under
the present system, 57 Regional Offices (RO) handle all of these
functions, forcing many veterans to travel long distances to their
``local'' RO. A veteran-friendly system would disperse most of the
functions of the present ROs closer to VA Hospitals, VA outpatient
clinics, and/or Vet Centers. This way, the processes of meeting the
veteran, completing forms, developing evidence, and attending hearings
would take place closer to the claimant's home, while centralized state
offices would house the rating boards. With computerized files, the
file could be accessed in all locations. A system like this has been
utilized by the Social Security Administration, which has multiple
local offices dispersed throughout each state for these precise
processes.
Such a system would begin to process the simplified application by
requesting specific documentation from the claimant, such as a
necessary DD214 or current medical records. Then, rather than
continuing with the obsolete system of separating work functions at the
ROs into six teams, there should be one decision unit which handles
everything from reviewing the application for completeness in
predetermination through gathering the evidence and producing rating
decisions. This reworked adjudication unit would be charged with the
responsibility of partnering with the claimant and the claimant's
representative, if the claimant is represented, to fully understand and
develop the claim. It would then issue an understandable and case
specific VCAA notice, prior to any rating decision, assist with any
additional development, and then, after case-development was completed,
issue the rating decision.
Because the present rating system is obviously difficult for
veterans to understand and for rating boards to apply, it often results
in erroneous decisions. What is needed is an overhaul of the entire
Schedule for Rating Disabilities contained in 38 CFR Part 4 to simplify
and update the schedules.
There should be increased use of presumptions to eliminate the need
for development of evidence regarding the incidents of military service
for all those who were deployed to a war zone regardless of their
military occupational specialty or place of assignment within the war
zone. For example, any veteran who was deployed to a war zone, whether
during WWII, Korea, Vietnam, the Gulf War or the GWOT and who is
subsequently diagnosed with PTSD, the sole inquiry during the rating
stage of their claim should concentrate on the severity of their
symptoms without requiring development of the nature of their in-
service stressor(s) or the connection between their stressor(s) and
their present diagnosis of PTSD. Any veteran who is diagnosed with a
medical condition while on active duty and who is presently being
treated for that same condition should not need to prove a medical
nexus between the in-service condition and the current condition. Also
veterans who are receiving Social Security Disability or Supplemental
Security Income benefits based on medical conditions and/or
disabilities which are related to service should be presumed to be
unemployable.
PTSD, TBI, and their underlying symptoms and residuals are leaving
increasing numbers of veterans' lives in shambles. It is only right,
therefore, that any rewrite of the Schedule for Rating Disabilities
include consideration and compensation for a veteran's loss of quality
of life as well as for his/her loss of earning capacity as related to
these medical conditions.
Obviously, NOVA's recommendation to decentralize the VA will not
work without a 21st century VA claims system, i.e., one that is
paperless and secure. Also, the VA will never secure the confidence of
our country and our veterans until there are secure claims files.
Together with a modern claims file system, veterans must be granted
the same rights granted to all other classes of citizens--the right to
choose to hire a lawyer for assistance, if desired, from the very
beginning of the claim adjudication process. Presently, veterans are
the only class of citizens who do not have the right to hire an
attorney to assist with a claim from the claim's inception. For
example, veterans who are notified of the possibility that their rating
will be reduced are not permitted to hire an attorney for a fee to
represent them even after objecting to the notice of reduction. They
must wait until after their rating has been reduced to hire a lawyer.
Moreover, once a lawyer or other representative is hired, neither the
first-line decisionmakers, the appellate teams nor the BVA should view
the veteran's representative as having interests opposed to the VA's
central mission of providing proper benefits to veterans and their
families. It follows that the VA should partner with the claimant's
representative and use informal conferences to speed claim-development
and narrow the issues to be decided.
Following an unfavorable rating decision, the claimant should only
need to file one request for an appeal instead of the present
requirement to file both a notice of disagreement and a substantive
appeal to the BVA. Thereafter, the claimant and his representative
should have the right to submit further evidence and/or argument, have
a de novo review on the record, and/or a personal hearing before a
Board Member (in person at the ``local'' RO, via video-conference, or
in person in Washington, DC).
Fundamental to remaking the VBA is adequate training, supervision
and accountability. This will require a revamping of the VA's
organizational chart so as to provide reporting and direct
accountability from the Regional Offices to the Secretary. Presently,
there are an excessive number of layers of executives in the system
which impedes the flow of knowledge and communication to the Secretary,
thereby impeding accountability. With direct accountability comes less
likelihood of lost, shredded or compromised evidence and/or claims
files. Direct accountability also brings about better-trained staff who
are properly motivated to perform functions essential to the mission.
Finally, in a system with adequate training and accountability, VLJs
are less likely to write decisions which are affirmed only 20% of the
time when appealed to the Veterans Court.
To ensure efficient, convenient, timely and proper appellate review
at the administrative level, the Board of Veterans Appeals should be
made independent of the VBA and should be decentralized and dispersed
within reasonable distances from the many Regional Offices. Not only
should the BVA Veterans Law Judges be moved out of their fortress in
Washington, DC, but the BVA's VLJs should be reconfigured into a corps
of truly independent and well-trained Federal Administrative Law
Judges.
It is fundamental that the pressures placed on raters and VLJs to
turn out decisions must be replaced with a system which expects the
right decision to be made at all levels of the process. Veterans
require a system which does not provide a decision until the claim is
fully developed, which involves a true partnership between the claimant
and the VA, and which rewards prompt and correct decisionmaking. NOVA's
experience confirms the findings in the 2005 report of the Office of
Inspector General that the present work credit system is providing a
disincentive to properly deciding claims. It should be replaced. To
complement new expectations of increased accuracy and accountability,
it is essential that VA employees be repeatedly and adequately trained
and supervised. Additionally, the high rate of VLJ decisions which are
returned to the BVA because of inadequate reasons and bases is
unacceptable and contributes to the backlog and to the reputation of
``hamster wheel'' adjudications.
Appeal from a VLJ's decision should go to the CAVC and then to the
Federal Circuit. Two changes to the operation of the court would make a
big change. First, the CAVC should be granted class action jurisdiction
to remedy situations which affect a broad class of veterans. Second,
the CAVC should be required to resolve all issues reasonably raised,
except for constitutional claims, if the appeals can be resolved
without reaching the constitutional claim.
Senator Burr. Now, I made the statement to the last panel
that if you merely look at it from a standpoint of how many
claims came in and in all three baskets how many were received
and how many you processed, we have a system right now that
works. I know we all agree that is not the case.
But if we are purely looking at in and out flow, then you
have to say we are processing a few more than what we are
taking in.
The problem is that with a 30,000 plus backlog, based upon
the numbers, that is about 10 years to work through that
backlog. I think we would all agree that is unacceptable.
By the same token, I hope everybody understands that we
have an obligation not to build an infrastructure that 5 years
from now, 10 years from now has an over-capacity of 30 percent
because we never get rid of anything in Washington. I think
that we have to hit this fairly accurately from a standpoint of
the size of these institutions.
Let me just move to one area if I could. I think, Mr.
Baker, you have been very clear--and I appreciate it--on the
Appeals Management Center. You have called for it to be closed.
Clearly, it was a creation in 2003 by the VA to hopefully
address questions that were being raised by either you or
people that preceded you and veterans around the country, that
we could do this better, faster. If we didn't need to go
through the whole process, let's stand up this new Appeals
Management Center and see what we can alleviate with that
piece.
And I think all of us can question, did we train people to
the degree that we should have? Did we do this? Did we do that?
I only want you to focus on whether it should continue to
exist. Does it help today? Could it potentially help with
change? Or, should we just can it and take it out of the system
because it contributes to the ineffective flow?
Let me move to you, Mr. Cohen.
Mr. Cohen. Thank you, Senator Burr.
This is an easy question. From our perspective, it does not
work and it needs to be removed.
The reason why it does not work is for the unrepresented
veterans and claimants whose claims end up there--they do not
get timely, good decisions out.
For the represented claimants and veterans, it is a black
hole because the AMC will not adjudicate any claims where there
is representation. Yet, the BVA remands those claims when there
is representation to the AMC, and it may take a year or more to
get it out. During that period of time, nothing happens. It
just sits in the black hole.
So it doesn't add value to the system anyway around. It
would be much better to just remand back to the agency of
original jurisdiction and have the development occur there.
Senator Burr. Mr. Stichman?
Mr. Stichman. I am inclined to agree with my colleagues
that it has not worked out well.
I think part of the reason for creating it was to have a
centralized authority that you would have better control of,
that would have better quality in their decisionmaking.
It would be, DAV argues, that that takes the regional
office off the hook. So, they do not care about their quality
because they are not going to have to suffer the consequences
because a Board remand will go to a different entity. I think
there is merit to that criticism.
At any rate, they haven't been speedy in their
decisionmaking. They make decisions away from where the veteran
is, not at the local level like the regional office, which
causes problems in representation, et cetera. So, all in all, I
agree with my colleagues that it has not worked out well.
Senator Burr. Great. Thank you.
Thank you, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Burr.
Senator Begich.
Senator Begich. Mr. Chairman, thank you very much.
And, Senator Burr, I like that idea of asking each one of
them to prepare a process if you had a clean slate how it would
flow. And I would also say--I think this was your intent too--
do you have the capacity--all three of you--to actually create
a system that you agree on?
Mr. Stichman. No.
Senator Begich. Then I think that is where you also were
going, I am assuming.
Senator Burr. I knew better than to go there.
Senator Begich. Because that is what I am interested in, to
be very frank with you. I think it would be great to have three
plans, but for the Senate to decide on one, let alone three,
the backlog will get done quicker.
So let me also add to that, I would be interested in--as
you think about this idea--if there is a way to look at a new
system, what are those resources and technology that you would
need to make it happen?
Mr. Cohen, your comment, and I agree to a certain extent
with you on the video component. But the technology that exists
today is incredibly advanced, and I know there is a time delay
but not like it used to be. Also, the capacity to look at
documentation is unbelievable today, more than it was 6 months
ago, let alone a year ago, let alone 5 years ago.
But I do recognize your point on elderly veterans who may
not have that capacity to utilize that technology or those that
have medical conditions.
But I want to make sure I am clear on one thing. You did
not say that it should not be utilized as much as possible,
where possible, right?
Mr. Cohen. Yes.
Senator Begich. I do not want to put words in your mouth,
but it sounded almost at one point that you did not think
technology was good enough for the videoconferencing.
You are talking to someone who believes in it, uses it. The
technology is far advanced. When I talk to Senators around here
about how I talk to my son by Skype, they are still trying to
figure out what Skype is.
But the reality is we are in a new age, and we would be
foolish not to deploy that for the benefit of our veterans who
want to use it and know it. I get a ton of emails from
veterans, and I get videoconference requests from veterans all
the time.
Mr. Cohen. Well, Senator Begich, my problem is not with
using it all because I agree with you that there are
circumstances where it can provide tremendous benefits in terms
of having speedier hearings, in terms of not requiring people
to travel.
My concern is there are certain people who cannot have
that. There are certain situations where credibility is
important, and you cannot judge that over a video screen. The
Social Security Administration that uses videoconferences has a
provision for not using it under certain circumstances where
the impairment of the individual would make a further
impediment to using it.
Senator Begich. Good point. That is great.
Also, I know, Mr. Chairman, that the format here is very
structured. So I am just going to ask a question, not for a
response but really to kind of pass through the bodies that are
here, to Chairman Terry.
I would be interested in your comments back too, Mr.
Stichman.
The way we do it in local government is I would have those
folks sitting here, you folks sitting here and we would not
mess around with this formal 5-minute process. We would get to
it and get on with the show. But I know we have tradition and
structure here, so I do not want to get in trouble and get
thrown off the Committee.
So I am kind of going through you and Chairman Terry, but
that is the question because I would be very curious.
Mr. Stichman. The statistics, you mean?
Senator Begich. Statistics and kind of the concerns that
you brought because I think your concerns are very valid
because you do not want to get into a situation where all you
are doing--I think Senator Burr said it--just counting data
points because you can do that all day.
Really, the goal is how do we deliver services to those who
are in need that clearly qualify yet the system has eaten them
up? I think the words you used--the hamster wheel--that you are
chewed up, and you give up at some point.
So I would be very interested. It is not for you to do.
But, Chairman Terry, I hope you took notes, and I would be very
interested in your response back to the concerns.
The other one which I do not know enough about, and I will
get some additional information from staff, and that is the
work credit system. I agree with you. I did not realize that
was part of the system. That is just a production number. It is
``get your widget done and move on.'' That is very dangerous
when you are dealing with service requirements or trying to
make sure someone has services.
So I would be interested in all three of you, not right now
because the time is limited, but some additional material on
how you see what could be eliminated, reformed. But that was
new to me, and I did not realize that piece of the equation. So
I thank you for that.
Part of what I am doing here is getting educated on
elements of it. So, I thank you for all you guys' testimony.
Mr. Baker, yours was very bam, bam, bam, and I appreciate
that because I could sense there was a little disagreement on a
couple things, and that is good because that helps me
understand a little bit where the issues are.
I thank you all.
Chairman Akaka. Thank you very much, Senator Begich.
I want to thank our panelists. We do have other questions
we will submit for the record.
I want to extend my thanks to all of our witnesses for
appearing today. Your testimony has given us insight into a
variety of different proposals on how to amend the current
system for the appeals process for disability claims.
I look forward to continuing to work together to improve
the ways in which claims for benefits are handled.
So, again, thank you very much for being here.
This hearing is adjourned.
[Whereupon, at 11:12 a.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of American Federation of Government Employees, AFL-
CIO, Local 17
INTRODUCTION
AFGE Local 17 appreciates the opportunity to present its views on
the Department of Veterans Affairs (VA) disability compensation appeals
process to the Senate Committee on Veterans' Affairs. AFGE Local 17
represents all the professional and nonprofessional staff at VA Central
Office (VACO), including the entire professional and nonprofessional
bargaining unit members at the Board of Veterans' Appeals (Board).
AFGE Local 17 makes the following recommendations for process
improvement:
I. EXPAND LEGAL STAFF
The Board needs additional attorneys to handle its caseload. We use
the term ``caseload'' rather than ``backlog'' because it more
accurately describes the flow of claims from VA Regional Offices (ROs)
and the U.S. Court of Appeals for Veterans Claims (Court) by operation
of statutes and regulations. The Board's jurisdiction in claims by
veterans is established by receipt of a substantive appeal signed by
either the veteran or by the representative of the veteran. All cases
for which a substantive appeal has been entered become the Board's
caseload.
AFGE Local 17 urges Congress to provide funding for the Board to
hire at least fifty additional attorneys in addition to maintaining
current staffing levels. That expansion should continue with additional
attorneys being hired thereafter until the current caseload decreases.
The expanded legal staff should remain in place until the caseload
significantly declines, as measured by a percentage of the total
caseload or another measure that accurately reflects a decrease in the
number of cases for which a substantive appeal has been filed.
II. EXPAND ADMINISTRATIVE STAFF
The Board currently faces a fairly significant bottleneck in the
administrative processing of claims caused by a shortage of staff to
process claims. An initial inadequate ratio of support staff to
attorneys has worsened over the years as the Board has increased the
number of attorneys without a comparable increase in support staff.
Administrative staff members are as critical to sending completed
decisions to the veterans as the attorneys and Veterans Law Judges
(VLJs) who write and sign decisions. We suggest an approximate ratio of
one administrative support staffer for every two attorneys.
III. SPECIALIZATION
Specialization by both the attorneys and the VLJs would increase
their familiarity with laws governing a specific set of benefits, which
in turn would increase the quality of the decisions as well as their
quantity (the quantity would increase due to greater familiarity with
the pertinent case law and a consequent decrease in the need for
research).
Therefore, AFGE Local 17 recommends that Congress require the Board
to identify twenty areas of specialization and to assign no more than
three such areas to each VLJ. Each VLJ would retain those areas of
specialization for three years. Other cases not involving an issue of
specialization could be assigned to any VLJ.
Attorneys would also benefit from this specialization. Attorneys
who completed their probationary period and are performing successfully
for the VLJ would continue working in that VLJ's area of specialization
for three years. If the attorney passes his or her probationary period
and thereafter performs unsuccessfully, he or she will be reassigned to
a different supervisor for a year, with that supervisor allowed to
administer a performance-based action after 90 days.
IV. ESTABLISH ANOTHER DECISION TEAM
The Board should be reorganized to add an additional decision team
to the four presently in place. The additional decision team would be
larger than the others and would handle all issues appealed from
decisions by the other four teams, by reconsidering them (a current
part of the law) and issuing a decision that is ready for appellate
review. This would increase both the quality of the decisions reviewed
by the Court and the quality of decisions received by veterans. It
should also speed up the issuance of decisions generally.
In addition, the four current decision teams should be required by
statute to write ``veteran friendly'' decisions, i.e. decisions meant
solely for the veteran and his or her representative, and not the
Court. Thus, these decisions would be shorter and would not contain the
legal explication only required to pass Court muster. Decisions would
be more accessible to veterans since there would be no requirement to
use language designed to be defended before the Court.
V. USE EMPLOYEES OF THE BOARD TO TRANSFORM THE BOARD'S ADJUDICATION
INTO A PAPERLESS SYSTEM
AFGE Local 17 strongly supports conversion of the Board to a fully
paperless system, moving with all due dispatch to have all files be
paperless. Rather than contract out the scanning and other related
tasks to a private contractor, we urge Congress to create additional
employment opportunities by establishing a new administrative unit
within the Board (but not necessarily stationed in Washington, DC) to
convert files at a reasonable pace and reasonable cost. In this way,
the Board's in-house knowledge base would grow and other Board staff
would have access to technicians who are directly responsive to the
Board and to the veterans--in contrast to private contractors, who in
addition to being excessively expensive work first and foremost in the
interests of an enterprise concerned with making a profit as opposed to
helping our Nation's veterans.
VI. PRESUMPTION IN FAVOR OF TREATING PHYSICIAN EVIDENCE
We recommend the following when a claim includes a physician's
assessment of a veteran's subjective complaints and observations (also
called a diagnosis), a treatment plan, and a physician's statement
relevant to the issue: This evidence should be dispositive of the
issue. Further development would only be in order if medical evidence
exists elsewhere in the claims folder that directly contradicts the
physician's relevant statement.
VII. CHANGE ELIGIBILITY RULES FOR VICE CHAIR POSITION
We urge Congress to modify the current statutory provision related
to the Vice Chair of the Board to require that that person be employed
at the Board for at least 12 months prior to appointment as Vice Chair.
Veterans and the Board's attorneys are both adversely impacted when the
Vice Chair lacks sufficient familiarity with Board operations.
VIII. OTHER COMMENTS
A. RO Training: During the hearing on February 11, Chairman James
P. Terry of the Board referred to training that the Board conducts at
the RO level. We support this training and believe it improves the
quality and timeliness of decisions made at the RO level. However, AFGE
members from the field report that this training program is sporadic
and not available at most ROs. We urge Congress to provide the
oversight and funding to ensure that this valuable training is provided
consistently across all ROs.
B. VCAA: The letter notifying claimants of their rights under the
Veterans' Claims Assistance Act should be much shorter and use
nontechnical language.
C. Revise VA Form 9: Instead of requiring the veteran to submit a
VA Form 9 to indicate whether he or she wants to continue or withdraw
the appeal, a form should be attached to the front of the Statement of
the Case (SOC) that the veteran can fill out to state his or her
preference in this regard. Also, the deadline for receipt of the form
by the RO should be made much more visible than it is currently.
William Angulo Preston,
Acting President, AFGE Local
17,
VA Central Office,
Washington, DC.
William H. Wetmore,
Third Executive Vice
President,
National VA Council, AFGE &
Steward, AFGE Local 17,
VA Central Office,
Washington, DC.
______
Prepared Statement of Paralyzed Veterans of America
Chairman Akaka, Ranking Member Burr, Members of the Committee,
Paralyzed Veterans of America (PVA) would like to thank you for the
opportunity to submit a statement for the record concerning
improvements that can be made to the appeals process as part of the
veterans' disability claims process. We recognize that the claims
processing system is in need of change. However, we believe that the
current system is fundamentally sound and staffed by many dedicated
employees who made the conscious choice to work at the Department of
Veterans Affairs (VA) so that they may help veterans. However, the
implementation of the process must still be improved.
PVA understands the need to focus attention on the appeals process.
However, we believe that there are a number of actions that can be
taken internally by the VA, without the enactment of new legislation
that could improve the process. We will focus on issues that we believe
Congress must address first, and we will also provide comments on
statements made during the hearing on February 11.
RECOMMENDATIONS FOR CONGRESS
First, we would invite the Committee to examine the recommendations
of The Independent Budget for FY 2010 at www.independentbudget.org.
Moreover, as a part of the funding recommendations of The Independent
Budget, we have included what we believe are adequate funding levels
for the operations of the Board of Veterans' Appeals (BVA or Board) and
the U.S. Court of Appeals for Veterans Claims (CAVC or Veterans'
Court). We also believe Congress should provide sufficient funding for
comprehensive training for Board employees.
Congress should fund the expansion of paperless claims processing.
In fact, we would suggest that it might be better to accelerate the
implementation of paperless appeals processing as this could expedite
implementation in the larger claims process. Congress should include
additional funding to accelerate the implementation of an appeals
process that maximizes the opportunities to conduct a paperless review
process by BVA. Since only about one claim in eight reaches the Board,
it would appear practical to begin conducting paperless BVA reviews at
a pace in advance of original claims entered by the Veterans Benefits
Administration. Insight gained from the BVA paperless experience then
will aid the transition of all VA to a paperless claims process.
PVA opposes any suggestion to shorten the current statutory time
periods allowed for appellants to submit evidence and to file necessary
documents to initiate and perfect appeals. PVA does not agree that the
time has come to deprive veterans of their one year opportunity to
disagree with a decision entered by VA or to perfect an appeal. PVA's
mission focuses on veterans catastrophically disabled by spinal cord
disease or injury. The rehabilitation process is arduous and often
long. So there is a need for the current one year period to allow the
veteran time for recovery, adjustment, and to gain insight and
understanding into the veterans' benefits claims and appeals processes.
For some, their ability to respond depends on aid from others, others
who are not always under their control or aware of the processes.
For those with one of the signature injuries of the current War on
Terror, particularly serious Traumatic Brain Injury, time is needed for
recovery, or to find an advocate that can help, or to exchange
communication with their representative or with VA. Imposing more
stringent deadlines at a time more veterans are less able to respond in
a timely fashion is unconscionable.
Why do we permit veterans to exercise their appellate rights for a
longer period than others interacting with the Federal Government?
Because they are our veterans and we are grateful for their sacrifice.
PVA also opposes the Expedited Claims Adjudication Initiative and
its extension to the appeals process. The process solicits claimants'
permission to waive their opportunities to participate in the claims
process and sacrifice their time limits, with no corresponding
obligation on the part of VA to enter a decision that is any more
accurate or timely. Sacrificing the right to due process, the
opportunity to respond and the right to representation at all stages in
the process, by opting into the expedited process provides only the
opportunity to increase the number of prompt denials with no
opportunity to introduce new argument or evidence. The Initiative is
only one of several pilot programs VA is currently conducting. We
believe each of these programs must be carefully monitored and
evaluated before deciding whether expansion is warranted.
PVA also has serious concerns about suggestions made by Judge Bruce
Kasold, U.S. Court of Appeals for Veterans Claims, in his statement
before the Committee. During the hearing, Judge Kasold suggested that
Congress should consider abolishing limited judicial review of CAVC
decisions by the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit). PVA, as the only veterans service organization with a regular
practice before both courts, adamantly opposes the idea of removing the
limited jurisdiction from the Federal Circuit to review the Veterans
Court's interpretations of statutes and regulations. The reasons
presented by Judge Kasold do not support his suggestion. His written
testimony states:
Is the time right to evaluate the need for the unique,
additional appellate review provided by the Federal Circuit? I
understand Chief Judge Greene is on record in support of such
an evaluation, as is our first Chief Judge--Chief Judge
Nebeker--and I too strongly suggest that it is now worthy of
consideration. I note that although direct certiorari review by
the Supreme Court initially was not provided for the other two
Article I appellate courts--the U.S. Court of Appeals for the
Armed Forces (formerly the Court of Military Appeals), and the
District of Columbia Court of Appeals--over time, as those
courts matured and developed a seasoned body of case law, such
review was provided. Moreover, when such review was provided
for the D.C. Court of Appeals, the intermediate review
previously provided by the U.S. Court of Appeals for the
District of Columbia was eliminated.
Eliminating the intermediate appellate review currently extant
with veterans judicial appeals not only would reduce the time
involved in the judicial appeal process for a particular case,
it would reduce the overall processing time for many cases as
issues that have a system-wide impact generally would be
brought to final resolution in a more timely manner. I know
some will object to losing that unique, additional bite at the
apple, but is has been my observation that the few significant
case that the Federal Circuit viewed differently that our
Court, generally have come down fairly equally, with the
Secretary or the appellant being satisfied in one case only to
be dissatisfied in another. Given Justice Jackson's
observation, and the fact that we now have a seasoned body of
case law, it appears timely to bring the judicial appeals
process provided for review of claims for veterans benefits in
line with the overall Federal appeals process.
PVA does not believe the time is right to review whether the
limited judicial review by the Federal Circuit over CAVC decisions
should be abolished. To support his suggestion, Judge Kasold analogizes
the Veterans Court to two other Article I courts--the Court of Appeals
for the Armed Forces and the District of Columbia Court of Appeals.
This analogy, however, does not work. Indeed, this analogy actually
presents strong reasons for continuing the Federal Circuit's limited
jurisdiction over CAVC decisions.
First, the only significant similarity that exists between the
Veterans Court and the two other Article I courts is that each is an
Article I court. Aside from this characteristic, no other relevant
similarity exists between the Veterans Court and the Court of Appeals
for the Armed Forces and the District of Columbia Court of Appeals. The
Court of Appeals for the Armed Forces and the District of Columbia
Court of Appeals review decisions that are made by lower courts. The
Court of Appeals for the Armed Forces reviews decisions that are made
by appellate courts of the military services such as the Army Court of
Criminal Appeals for the Army, the Navy-Marine Corps Court of Criminal
Appeals for the Navy and Coast Guard and the Air Force Court of
Criminal Appeals for the Air Force. The District of Columbia Court of
Appeals is the equivalent to a state supreme court. As the highest
court in the District of Columbia, the District of Columbia Court of
Appeals has authority to review all final orders of the Superior Court
of the District of Columbia. The District of Columbia Court of Appeals
also has authority to review decisions that are made by administrative
agencies, boards, and commissions of the District of Columbia.
Unlike the Court of Appeals for the Armed Forces and the District
of Columbia Court of Appeals, the Veterans Court does not review the
decisions of inferior courts. Rather, the Veterans Court reviews
decisions of the BVA. The BVA is not a court. The BVA is an
adjudicative body of an administrative agency, the VA. Unlike the
decisions of the courts that are made in an adversarial, litigation
context and are reviewed by the Court of Appeals for the Armed Forces
and the District of Columbia Court of Appeals, the BVA makes its
decisions in an ex-parte and non-adversarial manner. Therefore, because
the Court of Appeals for the Armed Forces and the District of Columbia
Court of Appeals review decisions that are made by lower courts and the
Veterans' Court reviews decisions that are made by an adjudicative body
of an administrative agency, the judicial appeals processes governing
the Court of Appeals for the Armed Forces and the District of Columbia
Court of Appeals, do not apply to, and are not analogous to, the
judicial appeals process of the Veterans Court.
Second, the attempted analogy between the Court of Appeals for the
Armed Forces, the District of Columbia Court of Appeals, and the
Veterans Court appears to assume that all three Article I courts
provide appellants with their initial level of judicial review. This is
not true. Indeed, the assumption applies only to the Veterans Court.
The assumption does not apply to the Court of Appeals for the Armed
Forces and the District of Columbia Court of Appeals. These two courts
provide, respectively, intermediate appellate review in appeals from
the appellate courts of the military services and the Superior Court of
the District of Columbia. In the CAVC context, however, when the
Veterans Court reviews a BVA decision, the Veterans Court is providing
the appellant with his or her very first opportunity for judicial
review. Therefore, if Congress removes the Federal Circuit's limited
jurisdiction to review the Veterans Court's decisions, Congress will
actually take the ``judicial appeals process provided for review of
claims for veteran's benefits [out of] line with the overall Federal
judicial appeals process[es]'' as they currently exist before the Court
of Appeals for the Armed Forces and the District of Columbia Court of
Appeals. As a result, PVA respectfully submits that Congress should
leave the current review structure intact. By retaining the Federal
Circuit's limited jurisdiction to review decisions of the Veterans'
Court, Congress will keep the judicial appeals process provided for
review of claims for veterans benefits in line with the Federal
judicial appeals processes that exist elsewhere, including before the
Court of Appeals for the Armed Forces and the District of Columbia
Court of Appeals.
Finally, we would like to include a brief outline of additional
steps that we believe the VA can take without Congressional action to
improve the appeals process:
ACTIONS BY THE DEPARTMENT OF VETERANS AFFAIRS
Revise VA Form 9 to:
Fully inform the appellant of the opportunity to waive
their right to a Supplemental Statement of Case in response to new
evidence and allow the appellant to select a block expressing their
intent to waive or not to waive the right to have VBA review further
evidence in the first instance. Some remands are entered by BVA because
an appellant has introduced additional evidence into the record after
the record has been transferred to the Board but the appellant has not
waived the right to have this evidence reviewed in the first instance
by the agency of original jurisdiction (AOJ). Consistent with 38 CFR
Sec. 20.1304(c) the evidence is to be returned to the AOJ for
consideration and a new decision prior to review by BVA, unless BVA
allows the appeal based on this evidence. The Board has for so long
remanded appeals owing to evidence introduced without a waiver, that it
has become ingrained in the culture. The appeals process would be
improved should BVA choose to allow more appeals without a waiver as
currently authorized.
Rather than depriving all veterans of the right to due process in
response to additional evidence, PVA proposes a change to the VA Form 9
to permit the appellant at the time they perfect their appeal, to make
a fully informed decision as to whether they desire to have future
evidence reviewed by VBA in the first instance and a disclosure of the
effect of this evidence on their appeal, or they desire to have their
evidence reviewed by BVA for the purpose of a final decision by BVA.
The VA Form 9 should provide two blocks so that the appellant may
choose to waive or not waive.
Meanwhile, we believe that the VA should review all of its
standardized forms and determine if there is any need for improvement.
These forms are the method by which the VA communicates with the
veteran and it is important that they are not incomprehensible for the
veteran.
Fully inform the appellant of the availability of a
videoconference hearing and provide the opportunity to select a block
to choose that option. Videoconference hearings are permitted by 38
U.S.C. Sec. 7107(e). We agree that BVA can operate more efficiently
with increased utilization of videoconferencing capabilities. But this
option is under utilized, we believe, because appellants are not
offered this option at the same time and in the same manner as other
hearing options.
We propose that VA change the form to reflect the options in this
manner:
I do not want a BVA hearing
I want to appear before a BVA videoconference hearing at an
available VA facility nearest my home.
I want to appear before a BVA hearing in Washington, D.C.
I want to appear before a BVA travel board hearing at a local
VA facility when BVA can next visit and schedule that type of
hearing because: (Please explain why a videoconference hearing
cannot satisfy your needs because a travel board hearing will
require more time to arrange.)
If you are represented, we strongly urge you to seek their
advice before making your selection.
Fully inform the appellant of the availability of a travel
board hearing and of the average waiting time before the next available
travel board hearing date and provide the opportunity to select a block
to choose that option.
ACTIONS BY THE BOARD OF VETERANS' APPEALS
The BVA should not expend resources training Regional
Office personnel, other than as to appellate procedures.
Beginning with new original appeals, VA should scan all
paper records to permit BVA to conduct a review of electronic records.
Because the Board reviews only one in eight benefit decisions, the
Board presents an opportunity to more quickly convert to paperless
processing. VA should expand the scanning capabilities as soon as
practical and discontinue the practice of transferringpaper records to
the Board. BVA and VSOs operating at the Board should be given access
to VBA and VHA software applications in order to review current VHA
treatment records and note such things as recent RO activity and
address changes, which are constructively a part of the record on
appeal. For those appellants who have not waived the right to VBA
review of new evidence, VSOs and BVA may quickly identify those cases
with the need for a remand for consideration of new evidence. For those
who have entered the waiver, these records may be reviewed and
considered without the delay imposed by the need for a remand to VBA.
In some cases VSOs or others representing veterans may contact those
who have not previously waived and solicit a waiver, if in the best
interests of the appellant.
Expand the number of VA facilities equipped to conduct
videoconference hearings for BVA, to include additional medical
centers, outpatient clinics and mobile health care and counseling
vehicles.
Explore the possibility of conducting videoconference
hearings utilizing the appellant's videoconference capabilities from
public or private sources.
ACTIONS FOR THE VETERANS BENEFITS ADMINISTRATION
Review actions of the Appeals Management Center and
determine its role going forward. The VA stated at the creation of the
Appeals Management Center (AMC), that since the AMC would handle only
remands, the results would be better and faster than remands worked by
the Regional Office. According to the VA quality review study, at one
point, approximately 30 percent of remands by BVA were necessary
because the AOJ had failed to develop the record in accordance with
existing Compensation and Pension Service instructions. There's never
enough time to do it right, but there's always enough time to do it
over. The offending AOJ is never made aware of the consequences of
these failures because the appeal does not return. Given the C&P
Service work product model measures and rewards only the quantity and
timeliness of claims decided, there is no incentive to invest the time
needed to completely develop and correctly decide the claim. This lack
of accountability promotes errors in great numbers.
An unforeseen complication has arisen. The appellant may have
concurrent claims and appeals pending. Owing to its mission, to provide
faster development and adjudication of remands, the AMC will adjudicate
only matters expressly remanded by BVA. The AMC will not address other
pending claims. Therefore, other pending claims will languish for years
at the RO because the AMC retains the claim file until it is returned
to BVA. This only hurts veterans. At times the pending claims provide
the potential for greater benefit than the pending appeal. Other than
yielding and giving up on the appeal, the veteran cannot get the other
claims addressed. PVA believes that the time has come for a thorough
examination of the activities of the AMC to identify problems that
exist. The AMC should then be required to correct these problems, and
if it chooses not to do so, then the time may come to dissolve the
operations of the AMC.
The Veterans' Benefits Administration should revise its
current work product models to reduce the credits given for the number
of claims decided at a Regional Office by the number of appeals allowed
and/or remanded by BVA originating from that office. VBA measures and
compares office productivity based on the quantity and timeliness of
decisions. There is no built in incentive to slow the process in order
to make more accurate decisions. The raters, RSVRs, never realize the
consequence of advancing inaccurate or underdeveloped appeals to BVA
because the remands proceed to AMC, not the offending RO.
PVA proposes that VBA implement new measuring models that reduce
the number of credits given for decisions emanating from a given RO, by
the number of cases allowed or remanded by BVA that originate from that
office. By reviewing the ``net'' figures VBA will be able to identify
those offices that deviate from the normal rates and focus training
efforts or adjust resources to correct the issue.
Simplify and automate the rating process to the extent
possible.
Implement system wide training to emphasize accuracy in
the decisions.
Mr. Chairman and Members of the Committee, PVA appreciates the
continued emphasis that this Committee has placed on fixing the
systemic problems within the claims process. It is important that in
the interest to appease veterans who have many complaints about the
process, that the system itself be reformed. We look forward to working
with the Committee, as well as the entire Congress and the
Administration, to ensure that meaningful improvements are made to the
claims process at all levels.
We would be happy to answer any questions you might have. Thank
you.
______
Veterans Law Section, Federal Bar Association,
Arlington, VA, February 11, 2009.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Hon. Richard Burr,
Ranking Minority Member,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Re: February 11 Hearing: A Review of Veterans Disability Compensation:
What Changes Are Needed to Improve the Appeals Process?
Dear Chairman Akaka and Senator Burr: The Veterans Law Section of
the Federal Bar Association appreciates your dedication to America's
veterans and your leadership in holding the February 11 hearing on ``A
Review of Veterans Disability Compensation: What Changes are Needed to
Improve the Appeals Process?'' We request the inclusion of this
correspondence in the record of that hearing.
As you know, the Federal Bar Association is the foremost national
association of private and government lawyers engaged in the practice
of law before the Federal courts and Federal agencies. Sixteen thousand
members of the legal profession belong to the Federal Bar Association.
The Veterans Law Section of the Federal Bar Association is one of the
dozen sections within the Association, organized by substantive area of
practice. These comments are exclusively those of the Veterans Law
Section of the Federal Bar Association and do not necessarily represent
the views or official position of the entire Association.
As the 111th Congress begins and the Committee continues its
oversight of the Department of Veterans Affairs, we strongly urge the
Committee to devote special attention in the months ahead to assuring
the establishment of legislative and administrative improvements in the
veterans disability claims process in the Department of Veterans
Affairs. We believe the utmost aim should be to assure equitable and
expeditious determinations through attention to the following oversight
and legislative goals.
PROFESSIONAL LEGAL REPRESENTATION OF VETERANS
The Veterans Law Section supports legislation that enhances and
expands the availability to veterans of professional legal
representation before the Agency. Section 5904 of Title 38 provides for
professional legal representation once a veteran has filed a Notice of
Disagreement, thus initiating the appeals process, but only if the
Notice of Disagreement has issued on or before June 20, 2007.
Subsequent regulations enacted by the Agency have established
certification, continuing legal educational and fee regulation
requirements implementing the legislation. We believe that the breadth
of the regulatory scheme promulgated by the Agency, the most stringent
of any agency within the executive branch, preempts any necessity to
maintain the restriction on the availability of professional legal
representation imposed by the June 20, 2007 date. We support and urge
the adoption of legislation which removes this restriction.
ACTION IS NECESSARY CLARIFYING ATTORNEY FEES
We support legislative and regulatory action that clarifies the
regulation and management of attorneys fees to avoid the transmittal of
either debt letters to the veteran claimant at the fee withholding
stage, or confusion of jurisdiction over processing of fees within the
Agency or the management of offset of EAJA fees resulting from
representation before the Court of Appeals for Veterans Claims.
We urge the recognition of the value of fee-based professional
legal advocacy within the disability claims process in the preparation
and prosecution of claims before the Department of Veterans Affairs.
Effective advocacy inevitably inures to the benefit of the entire
claims process by refining the issues presented and thus enhancing
expeditious and equitable resolution of factual and legal issues.
Skilled advocacy at initial filing promotes expeditious and equitable
resolution of claims at the Regional Office level, reducing the number
of claims that advance to the appellate level. It also reduces the
incidence of re-opened and remanded claims, contributing significantly
to the reduction of the current backlog.
ORGANIZATIONAL RESTRUCTURING OF THE DVA
We urge you to support whatever organizational restructuring of the
DVA is necessary to assure vertical accountability from the Office of
the Secretary through the Under Secretary to each of the Regional
Offices, to establish effective oversight and reporting practices. This
should assure that the Department is properly equipped to address the
backlog in each office and attain equitable and expeditious resolution
of the claims of current and earlier generations of veterans.
A SECURE, PAPERLESS VBA-VHA RECORDS SYSTEM
We strongly support the transition to a secure, paperless Veterans
Benefits Administration, Veterans Health Administration records system
compatible with the Department of Defense, Social Security
Administration, Indian Health Service and the U.S. Court of Appeals for
Veterans Claims, assuring meaningful integration of records into the
disability claims process. The resulting enhancement of the initial
adjudication of claims would significantly reduce delays in the initial
adjudication and the number of claims entering the appeals process.
This will also enhance the fair and equitable verification and
resolution of claims by Special Operations Personnel, which have been
inordinately difficult because of the security concerns involved.
LONG-RANGE PERFORMANCE GOALS FOR DVA MANAGERS AND REVIEWERS
Administrative changes should be accompanied by the establishment
of long- range performance goals for DVA managers and reviewers that
effectively promote, through the performance evaluation process the
elimination of the measurement of productivity by operations performed.
EQUITABLE AND EXPEDITIOUS CLAIMS RESOLUTION
We encourage the implementation of a veteran-centric culture that
advances equitable and expeditious claims resolution, substantially
limiting the number of appeals while maintaining the integrity of the
process. We urge strong and proactive Congressional support and
oversight in this area, directed to DVA revisions of policy, process
and training. As you know, the policy of previous administrations was
less than veteran-centric. Veterans were convinced that the Agency only
waited for them to die before claims were resolved. In this regard, we
urge the revocation of the recent policy of requiring Central Office
review, without Notice to the veteran's representative, of awards of
back benefits in excess of $200,000.00; awards which nearly uniformly
result from years and years of prosecution before the claim is resolved
in the manner required by the statutes and regulations when it was
initially filed. While legislative changes have begun to address these
issues, operational policy has remained much the same. Conformance with
the spirit as well as the legal requirements of statutory, regulatory
and case law must be the goal in the initial as well as the appeals
process.
IMPROVED TRAINING OF RATING PERSONNEL
In order to assure equitable and expeditious determination of
claims, and the minimizing of the number of claims appealed, we support
improved training of rating personnel with the establishment of agency-
wide training programs and meaningful testing regimens that include
monthly refreshers on case, regulatory and statutory changes. This
should minimize increase in backlogs and provide for the equitable,
expeditious resolution of claims by getting it right the first time, as
well as assuring rating consistency among the Regional Offices.
INDEPENDENCE FOR THE BOARD OF VETERANS APPEALS
We also support legislation requiring independence of the Board of
Veterans Appeals from the Agency and the selection and retention of BVA
judges only when they meet the training and certification standards for
Ails in other agencies within the executive branch.
ABOLISHMENT OF THE APPEALS MANAGEMENT CENTER
We support the abolishment of the Appeals Management Center,
created to circumvent Court rulings and which now has become a virtual
``black hole'' for cases remanded from the Court of Appeals for
Veterans Claims. The existence of the Appeals Management Center
undermines Agency compliance with the ``expeditious'' processing of
remanded cases ordered by the CAVC.
ABOLISHMENT OF THE STATEMENT OF THE CASE/
SUPPLEMENTARY STATEMENT OF THE CASE
We support the abolishment of the Statement of the Case/
Supplementary Statement of the Case, which in its current form
demonstrably fails to contribute to the appeals process by inundating
the claimant with endless regulatory and statutory quotations, often
irrelevant to the issues and thus impeding the orderly progress of the
appeal.
RESTORATION AND EXPANSION OF THE DECISION REVIEW OFFICER PROGRAM
In this regard we strongly support the re-invigoration, restoration
andexpansion of the Decision Review Officer Program consistent with its
original purpose and function. Through this program the claimant could
request review of the denial of his claim by a single, highly
experienced individual with the authority to settle the claim.
Claimants should be adequately advised of the availability of the
Program and encouraged to utilize it. The process initially functioned
as a dialog with the goal of equitable and timely resolution which
minimized further appeal and resolved the issues within the regulatory
and statutory provisions at the Regional Office. It should be restored
and expanded.
THE HAAS ISSUE AND EXPOSURE TO AGENT ORANGE
We also support legislation to resolve the Haas issue and address
equitably issues involving exposure to Agent Orange in settings outside
of Vietnam, where dioxin-based defoliants were routinely used. Claims
entering the appeals process would be greatly reduced by the
establishment of presumptions for diseases and disorders in a manner
that accommodates and accepts the realities of modern warfare in the
areas of toxic exposure, PTSD and TBI.
THE OTC CONTRACT
We support legislative and Agency review of the costly QTC
contract. If, after review of the QTC contract it is determined that
outsourcing is required, that such contract be submitted to arms-length
competitive bidding. To reduce the need for outsourcing C&P exams, we
encourage acceptance of opinions by treating VA physicians and
allocation of equal weight to the opinions of treating physicians, both
VA and private. In this regard we support regulatory change which
requires that all physicians, VA and private be advised of the
``elements'' of a probative opinion, reducing the number of remands for
to obtain probative, adequate opinions.
In recognition of service to their country, and injury and illness
incurred in harms way by veterans now incarcerated, we support
regulatory enhancement of the processing of claims for benefits by
incarcerated veterans through negotiation and cooperation with state
and Federal prison administrations. Claims are frequently denied for
failure to appear for examinations, which are impossible in most
instances, and hearings are similarly unavailable, thus impeding the
appeals process and the equitable and expeditious processing of these
claims. The Veterans Law Section supports regulatory changes to ensure
that information of the availability of apportionment is communicated
to every eligible family of incarcerated veterans.
IMPROVEMENT OF BENEFITS AND SERVICES TO NATIVE AMERICANS
Finally, in recognition of the extraordinary population of veterans
within all of the Native American Tribes and Nations (on some
reservations equal to 10% of the population), the Veterans Law Section
strongly urges and supports legislative and regulatory action that
improves and provides funding for the availability of the full range of
veterans benefits and services to Native American veterans. We support,
in light of the Rural Health outreach by DVA, the institution of and
funding for the presence of Veterans Health Administration services in
Indian Health Services hospitals and clinics on every reservation,
utilizing the existing Memorandum of Understanding between Veterans
Health Administration and Indian Health Service.
This would greatly enhance the expeditious availability of quality
health care to veterans for injuries and illness arising from their
military service and provide for C&P exams by VA providers, precluding
journeys of 100 or more miles for that purpose, as well as oversight by
or referral to trained physicians of problems with ``high tech''
prostheses and the quality management of Traumatic Brain Injuries.
Culturally compliant mental health care is desperately needed, as the
incidence of suicide, drug and alcohol self-medication and crimes of
violence domestic and otherwise is very high in these areas.
The Veterans Law Section supports legislative and regulatory
enhancement of the meaningful availability of VA loans, GI bill and
other existing programs which provide educational and economic
opportunities to Native American veterans and their families,
particularly in the West, where unemployment on reservations is
frequently as high as 90%. Most existing programs designed to be
available to all veterans are functionally unavailable to Native
American veterans who live on and near reservations. While DVA has
sponsored ``Tribal Veterans Representative'' programs, the individuals
participating are only trained to advise of the availability of
benefits. They are not competent or trained as representatives of the
individual veteran, nor may they be so trained under conflict of
interest restraints. If a veteran files a claim resulting from advice
received, he or she all too often does so without formal representation
and any denial is not appealed, with the result that the bar is then
raised for ensuing re-opened claims.
The membership of the Veterans Law Section of the Federal Bar
Association thanks the Committee for its consideration of these
comments.
Sincerely,
Carol W. Scott,
Chair, Veterans Law Section,
Federal Bar Association.