[Senate Hearing 109-694]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-694
 
   BATTLING THE BACKLOG PART II: CHALLENGES FACING THE U.S. COURT OF 
                      APPEALS FOR VETERANS CLAIMS

=======================================================================

                                HEARING

                               BEFORE THE

                     COMMITTEE ON VETERANS' AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 13, 2006

                               __________

       Printed for the use of the Committee on Veterans' Affairs


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                     COMMITTEE ON VETERANS' AFFAIRS

                      Larry Craig, Idaho, Chairman
Arlen Specter, Pennsylvania          Daniel K. Akaka, Hawaii, Ranking 
Kay Bailey Hutchison, Texas              Member
Lindsey O. Graham, South Carolina    John D. Rockefeller IV, West 
Richard Burr, North Carolina             Virginia
John Ensign, Nevada                  James M. Jeffords, (I) Vermont
John Thune, South Dakota             Patty Murray, Washington
Johnny Isakson, Georgia              Barack Obama, Illinois
                                     Ken Salazar, Colorado
                  Lupe Wissel, Majority Staff Director
                   Bill Brew, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                             July 13, 2006
                                SENATORS

                                                                   Page
Craig, Hon. Larry, Chairman, U.S. Senator from Idaho.............     1
Akaka, Hon. Daniel K., Ranking Member, U.S. Senator from Hawaii..     2
Jeffords, Hon. James M., U.S. Senator from Vermont...............     3
Burr, Hon. Richard, U.S. Senator from North Carolina.............     4
Murray, Hon. Patty, U.S. Senator from Washington.................    20
Thune, Hon. John, U.S. Senator from South Dakota.................    30

                               WITNESSES

Greene, Hon. William P., Jr., Chief Judge, U.S. Court of Appeals 
  for Veterans Claims; accompanied by Norman Herring, Clerk of 
  the Court, U.S. Court of Appeals for Veterans Claims...........     4
    Prepared statement...........................................     7
    Response to written questions submitted by:
        Hon. Larry E. Craig......................................    13
        Hon. Daniel K. Akaka.....................................    15
        Hon. John Thune..........................................    16
Terry, Hon. James P., Chairman, Board of Veterans' Appeals, 
  Department of Veterans Affairs.................................    31
    Prepared statement...........................................    34
    Response to written questions submitted by Hon. Daniel K. 
      Akaka......................................................    37
        Attachment A.............................................    42
Violante, Joseph A., National Legislative Director, Disabled 
  American Veterans..............................................    84
    Prepared statement...........................................    85
    Response to written questions submitted by Hon. Daniel K. 
      Akaka......................................................    88

                                APPENDIX

Chisholm, Robert V., Past President, National Organization of 
  Veterans Advocates, prepared statement.........................    93


                     BATTLING THE BACKLOG PART II: 
    CHALLENGES FACING THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS

                              ----------                              


                        THURSDAY, JULY 13, 2006

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in room 
418, Russell Senate Office Building, Hon. Larry E. Craig, 
Chairman of the Committee, presiding.
    Present: Senators Craig, Burr, Thune, Akaka, Murray, and 
Jeffords.

   OPENING STATEMENT OF HON. LARRY E. CRAIG, CHAIRMAN, U.S. 
                       SENATOR FROM IDAHO

    Chairman Craig. Good morning, ladies and gentlemen. The 
Committee on Veterans' Affairs of the U.S. Senate will come to 
order.
    Today, the Committee will continue to look at the veterans' 
claims adjudication and appeals system. Last year, we held 
hearings to examine challenges facing the Department of 
Veterans Affairs in processing and deciding veterans' claims 
for benefits. This morning, we will discuss some serious 
challenges facing the U.S. Court of Appeals for Veterans 
Claims, which hears appeals from those decisions. More 
importantly, we will discuss what measures could be taken to 
help the Court deal with these challenges.
    For this discussion, we are very pleased this morning to be 
joined by the Court's Chief Judge, William P. Greene, Jr., and 
he is accompanied by the Clerk of the Court, Norman Herring. 
Gentlemen, we thank you very much for joining us this morning.
    We are also pleased that the Chairman of the Board of 
Veterans' Appeals, James Terry, is here for this discussion. He 
is accompanied by Assistant General Counsel Randy Campbell. 
They will be joined on the panel today by Joe Violante of the 
Disabled American Veterans. We welcome all of you.
    Before I turn the floor over, I would like to comment on 
why I have called this hearing today. I think Judge Greene 
would agree that the past few years have been transitional 
years for the Court. The last of the original judges--and the 
Chief Judge who has previously stepped down is sitting in the 
audience--who were appointed when the Court was first created 
have all retired and six new judges were confirmed in their 
places.
    Also, the Court experienced a dramatic, unprecedented rise 
in the number of new cases it is receiving. In fact, in fiscal 
year 2005, the Court received over 3,400 new cases, which is 37 
percent higher than the Court had ever received in a single 
year. All this year, the Court expects to receive almost 3,600 
new cases.
    Those factors have undoubtedly contributed to what is now 
the highest level of pending cases the Court has ever 
experienced, over 5,800 cases. That is more than double the 
number of cases that were pending just 2 years ago, and more 
than three times the number of cases pending at the Court a 
decade ago.
    Recognizing these trends, the Court has asked for and been 
provided with funding for additional staff in recent years. But 
as you can see from the charts behind me, despite recent 
increases in productivity, we are still in the red and taking 
more cases on as we go.
    If these trends continue, and it is a reasonable projection 
outward, the number of pending cases may grow to almost 7,000 
by the next year and to 10,000 within the next 5 years. As we 
all know, whatever case comes into the Court must go back out, 
so as the number of pending cases continues to grow, the 
workload the Court will have to deal with in the future also 
grows.
    I know that since becoming the Chief Judge last August, 
Judge Greene has been carefully examining various means of 
dealing with this situation, such as recalling retired judges 
and having judges conduct settlement conferences. Today, we 
will discuss those options and others that may alleviate what I 
think is a phenomenal caseload.
    The bottom line is that if something is not done soon to 
reverse this trend, veterans seeking justice from the Court, 
and that is what this is all about, may have to wait in line 
several years longer just to get their case before a judge. I 
believe that is an untenable environment, particularly now, 
with thousands of wounded servicemembers returning from Iraq 
and Afghanistan. We must ensure that our veterans will receive 
timely decisions on their claims, whether that decision is to 
affirm or to remand or to reverse.
    So at the end of the day, I hope this Committee and our 
Nation's veterans will have some assurance that measures will 
soon be taken to ensure that the Court can promptly dispense 
justice in all veterans' cases, not just today, but for many 
years to come. That is what this hearing is about this morning.
    I am pleased to be joined by our Ranking Member, Senator 
Akaka. Danny, I will turn to you for opening comments.

STATEMENT OF HON. DANIEL K. AKAKA, RANKING MEMBER, U.S. SENATOR 
                          FROM HAWAII

     Senator Akaka. Thank you very much, Mr. Chairman. Thank 
you for calling this hearing today on this very important 
topic, service to our veterans and justice. This hearing 
continues the Committee's efforts to ensure that veterans' 
claims are processed and adjudicated in a timely and accurate 
manner.
    Last year, the Committee held a hearing on the backlog of 
claims at VA, including the Board of Veterans' Appeals. Today's 
hearing will examine the appeals process at the Court of 
Appeals for Veterans Claims.
    For many veterans, the claims process can be an arduous 
ordeal. By the time a claim reaches the Court of Appeals for 
Veterans Claims, the veteran may have spent years navigating 
through the VA system, awaiting final resolution on a claim.
    Veterans deserve to have their pending issues resolved 
fairly and in a reasonable amount of time. Ensuring the Court 
of Appeals for Veterans Claims has adequate resources and 
utilizes those resources in an efficient way will help meet 
this goal.
    Today, I hope we will hear what is working well and what is 
not working so well, especially at the Court. Once we determine 
where the problems reside, we can then explore what role the 
Congress might play, alone or with others, in finding common-
sense solutions.
    Judge Greene, I hope to hear from you about the various 
means by which you are reviewing the Court to reduce its 
pending caseload. Although not directly connected with the 
hearing, I note my regret that Dr. Perlin has resigned as Under 
Secretary. Personally, I feel badly about that, and we really 
will miss him. I found Dr. Perlin to be a man of great 
integrity who had the welfare of veterans as his highest 
priority. VA has lost an important leader.
    Mr. Chairman, I am happy to see that the Committee remains 
active. Recently, the Committee favorably discharged several 
important pieces of legislation and I am proud of the good work 
we have accomplished as a Committee and accomplished together 
along with our colleagues.
    Thank you again, Mr. Chairman, and I thank the witnesses 
for joining us today.
    Chairman Craig. Senator Akaka, thank you very much.
    We have also been joined by Senator Jeffords.
    Jim, do you have any opening comments?
     Senator Jeffords. Yes, I do, Mr. Chairman.
    Chairman Craig. Please proceed.

             STATEMENT OF HON. JAMES M. JEFFORDS, 
                   U.S. SENATOR FROM VERMONT

    Senator Jeffords. Thank you for holding this hearing. I 
appreciate the witnesses taking time out of their busy 
schedules to help us understand what problems there are with 
the veterans' claim system and how we can improve its 
functioning.
    Veterans deserve the benefits to which they are entitled. 
We all know that an exact determination of benefits owed is a 
tricky matter and the courts are often required to sort out the 
details in complicated cases. However, the veteran deserves 
speedy and clear adjudication of the claim of benefits.
    Over the years, Congress has worked hard in striking the 
right balance between assistance to the veterans and 
expeditious functions of the courts. I believe it is important 
to revisit that balance at regular intervals to make sure that 
we have it right.
    With a record number of claims coming into the system, it 
is incumbent upon us to make sure that the system functions 
properly. I look forward to hearing today's testimony, Mr. 
Chairman.
    Chairman Craig. Jim, thank you very much.
    We have also been joined by Senator Richard Burr.
    Richard, do you have any opening comments?

                STATEMENT OF HON. RICHARD BURR, 
                U.S. SENATOR FROM NORTH CAROLINA

    Senator Burr. Thank you, Mr. Chairman. My only statement is 
that I thank the Chair and the Ranking Member. I think this is 
one of the most important hearings that we can have. I think it 
is something we need to look at closely and I believe that it 
is time we find a solution to the backlog that we have. I thank 
the Chair.
    Chairman Craig. Thank you very much.
    Judge Greene, before I turn the microphone over to you, let 
me recognize the retired Chief Judge who is in the audience 
today, Frank Nebeker. It is great to have you with us, Judge. 
Also, Judge Al Lance, who is with us, and Judge Mary Schoelen. 
We thank you for being with us this morning and being a part of 
the audience and the listening group.
    This is a unique hearing in this regard, and I say to my 
colleagues this. As we know, this Court is not an extension of 
the Department of Veterans Affairs. It is a court that we 
created in 1988 for the purpose of serving veterans' needs and 
veterans' claims. It has seven judges, and as I have mentioned 
in my opening comment, it has largely rotated out now all of 
the original judges and we have a full complement of largely 
new judges. All of that has happened over the last 3 years.
    During that period of time, the statistics that are 
represented by the charts behind me on the mantel, speak in 
large part to what I believe is a sense of urgency to resolve 
this issue and to get the Court on a path of declining numbers 
of claims held over and growing numbers as it relates to 
serving our veterans.
    So with that, Judge Greene, we turn the microphone over to 
you for your time and your testimony.

  STATEMENT OF HON. WILLIAM P. GREENE, JR., CHIEF JUDGE, U.S. 
  COURT OF APPEALS FOR VETERANS CLAIMS; ACCOMPANIED BY NORMAN 
HERRING, CLERK OF THE COURT, U.S. COURT OF APPEALS FOR VETERANS 
                             CLAIMS

    Judge Greene. Thank you very much, Mr. Chairman. Good 
morning, Mr. Chairman, Ranking Member Akaka, Senator Jeffords, 
Senator Burr. It is indeed a pleasure for me to be here with 
you this morning. I welcome the opportunity to join you after 
the invitation to discuss the current caseload at the U.S. 
Court of Appeals for Veterans Claims. With me at the table is 
Mr. Norman Herring, my Court Executive.
    The court is a Federal Court of Appeals, charged with 
conducting legal review of final Board decisions on veterans' 
claims. Thus, the judges of the court do not adjudicate those 
claims, but rather determine if the Board decision contains 
prejudicial error or is legally correct.
    Judicial review of decisions on veterans' claims is 
relatively new. Until 1989, there were statutes precluding 
judicial review of that VA agency decisionmaking. Thus, over 
the past 17 years, there have been developments in veterans' 
law that include many lawyers gaining expertise in veterans' 
law, an awareness among veterans and their families of the 
existence of veterans' appellate rights and the value of 
judicial review, and there has been an increase in VA 
adjudications of veterans' claims that produces cases for the 
court's docket.
    Thus, it hasn't been a surprise to me that all of a sudden, 
we have this increase in appeals at the Court. I didn't know 
whether that was part of my welcoming reception as the Chief 
Judge, but if anyone looked at the statistics of the Board of 
Veterans' Appeals decisions over the past 10 years, one could 
see that just total denials by the Board were such a number 
that certainly would overwhelm this Court if all those 
individuals who receive total denials from the Board sought 
appeal in our Court. For whatever reason over the past years, 
they did not, but over the past 17 years with this growing 
expertise, this maturing bar that we have in veterans' law, it 
is definitely expected that we now would be receiving more 
appeals.
    The other unique thing about our Court is that no other 
Federal court would be faced with the transition that we were 
faced with as of August 2005. Where else in the Federal 
judiciary system could, I, the junior judge, just a little over 
2 years ago, suddenly become the senior judge, and have all of 
the experience of the court departing? We have, however, 
received six judges who are extraordinarily talented 
individuals, who have taken veterans' law by the horn and are 
making a difference to veterans. They are doing so with well-
tempered respect for legal precedent.
    Thus, we are now ready to tackle the caseload before us. My 
biggest challenge since August was to mold an effective, smooth 
operating group of judges who would gain experience fast to 
accomplish the task before us. The mission: to decide cases at 
the Court in a timely, collegial, and quality manner.
    As shown in the chart I provided to you in my written 
remarks, which I ask to be included in the record----
    Chairman Craig. And without objection, they are, certainly, 
Judge.
    Judge Greene. The indications are that from the beginning 
of August 2005 to now, there has been an increase in the number 
of cases decided by these judges. We are very pleased by that, 
but we are not stopping at that success. We want to continue 
that success, and as each year goes by, I am confident that we 
will be able to decide even more cases. That won't, however, 
help us at 7 judges to handle a caseload of 6,000, 7,000, 
10,000 cases. That is a known fact.
    In fact, as you may know, we are pursuing the possibility 
of moving to a veterans' courthouse and justice center. One 
observation that developed from the feasibility study is that 
if this trend continues, just at 3,600 new cases each year, by 
2010 when our lease expires in our current commercial facility, 
we would need to have 9 full-time active judges, and any spikes 
in the numbers of cases beyond 3,600 could be managed by 
recalled retired judges. Well, that is based on 3,600, so I 
have before me now the task of trying to plan on what about 
5,000? What about 6,000? That is my next mission.
    You have been provided a graph that depicts the numbers of 
cases at our court. Let us examine that quickly. There are 
5,850 cases at the Court. Of these, 3,598 are awaiting various 
developments. It must be remembered that even though those are 
cases coming in, they are not seen or touched by a judge until 
certain other preliminary steps are taken and completed. These 
preliminary steps are required in appellate procedure.
    Unlike in other Federal appeals courts, in our court there 
has to be a created an appellate record. In veterans' claims, 
there is not necessarily a record when the appeal comes 
forward. A record has to be designated. So there is time 
consumed in designating the record. Once the record is 
designated and filed, then the parties can file appellate 
briefs. After the appellate briefs are filed, then the case is 
ready for screening by the central legal staff, and then the 
case is ready for review.
    As I indicated in my written remarks, there are at least 
240 days encountered in that process, and that is without any 
requests for delays or motions for extensions of times for 
acceptable reasons. Indeed, from August 2005 to now, we have 
had 10,000 motions for extensions of time.
    Many Federal courts, of course, have rules to follow and we 
have adopted those rules. You have 60 days to file a brief. The 
other party has 60 days to file a brief. If you request a 
delay, the option is to deny it and you go forward without the 
case having been briefed or you afford the opportunity for the 
case to be briefed.
    We are not oppressive, of course, in our review because 
these are veterans' cases and we want the veteran to have his 
or her day in court and we want the Secretary to have the 
opportunity to be heard, as well. More importantly, the number 
of cases that fall in this category, about 58 percent, are pro 
se, i.e., they do not have legal representation. So 
consequently, we have to be even extra careful to ensure that 
that veteran who is not represented is afforded every 
opportunity of due process within our system.
    So once that time is consumed, we now have a case ready for 
judicial review. Under those circumstances, it is very 
difficult for us to identify that as a backlog. That is a 
caseload with which we already start off with a year before we 
can review the case.
    The other figures on the graph, represent the numbers of 
cases that go to the Federal circuit on appeal, which is 436. 
Of course, decisions from that court also have an impact on the 
types of cases that we end up having at our court, either by 
reversing our decisions or remanding cases back to us for 
whatever legal reason, or indeed, making a ruling of law that 
impacts not only the cases at the court, but thousands of cases 
at VA and, as a result, creates the potential for further 
appeals. Those cases are in our inventory, but as I said, about 
850 of them are not--they are cases that we have, in fact, 
already decided.
    That leaves about 920 cases that are in chambers, and that 
indeed is a heavy caseload for 7 judges, but it is manageable. 
We have reached the level of experience in this first year that 
I am confident we will continue to be able to review these 
cases as fast as possible with quality.
    But as the case move toward review, those 3,000 cases, I am 
monitoring our resources that can be applied to reviewing them. 
These available resources include using the attorneys in the 
central legal staff to perhaps conduct settlement conferences 
based upon rules that have to be established, because the 
current pre-settlement, or pre-briefing conferences occur much 
earlier in the system. A more mediation-type conference would 
occur probably after briefs are filed.
    And, of course, recalling our retired judges. Currently, 
there is bare bones support for supporting a recalled judge. I 
have authority for one clerk and one secretary. That would not 
provide or promote large efficiency of a recalled judge if you 
were recalling for purposes of dealing with maximum numbers of 
cases. If I were to call two or three recalled judges for the 
maximum output that I think they could provide, then I would 
need the accompanying staff to do so. I am sure that I can come 
to you and seek that support if the need arises.
    The critical piece that I have concluded is that I need to 
call them at the time that would be most useful to addressing 
the numbers of cases coming out of that briefing period through 
the CLS; as they trickle out of CLS at about 120 to 130 cases 
per month. Thus, we are getting near there, and as the Chief 
Judge, I have begun consulting with 5 of the 6 retired judges 
concerning their availability to be recalled within the next 6 
months.
    In an earlier meeting with the Chairman, I emphasized that 
the court's challenge was that it was a new court with judges 
having little experience. We are gaining that experience and we 
want to continue that success.
    We appreciate the interest of the Veterans' Affairs 
Committee in our mission and productivity. Our discussions are 
helpful in demonstrating that we have a shared goal in ensuring 
that judicial review of these veterans' adjudicated cases is 
conducted in a timely manner and consistent with the knowledge 
that our veterans deserve the very best.
    May I respond to your questions.
    [The prepared statement of Judge Greene follows.]

    Prepared Statement of Hon. William P. Greene, Jr., Chief Judge, 
               U.S. Court of Appeals for Veterans Claims

    Mr. Chairman and distinguished Members of the Committee:
    Thank you, Chairman Craig and Ranking Member Akaka, for inviting me 
to join you today to examine the current caseload at the United States 
Court of Appeals for Veterans Claims. Under 38 U.S.C Sec. 7252(a), the 
United States Court of Appeals for Veterans Claims, a national court of 
record established under Article I of the Constitution of the United 
States of America, has exclusive jurisdiction to review decisions of 
the Board of Veterans' Appeals. To obtain judicial review by the Court 
of a final decision by the Board of Veterans' Appeals, a person 
adversely affected by such decision must file a notice of appeal with 
the Court within 120 days after the date of notice of the Board 
decision is mailed. Thus, the U.S. Court of Appeals for Veterans Claims 
provides judicial review of decisions by the Department of Veterans 
Affairs that are generally final adjudications on claims for veteran's 
benefits. Although it is inappropriate for me to discuss specific cases 
before the Court and the deliberative process required for each 
individual judge, I am available to discuss the Court's current 
caseload including the sudden increase in appeals filed with the Court.
    Over the past 10 years, the Court had averaged 2,374 new cases per 
fiscal year (FY) and resolved an average of 2,114 cases, as well as 
concluding action on anywhere from 226 to over 1,500 applications for 
attorneys fees under the Equal Access to Justice Act (EAJA). 
Additionally, there has been a carry over of cases from year to year, 
in part because of formal and informal stays of proceedings. These 
proceedings are typically stayed at the request of the parties or by a 
judge because of another pending case that will resolve a similar 
issue. And, pursuant to the time limits provided in the Court's Rules 
of Practice and Procedure, it takes from 240 to 269 days (with time 
given to the parties for mailing) for the record on appeal and the 
briefs to be ready for review. This period can be extended based on 
motions by the parties. Between July 1, 2005, and June 30, 2006, for 
example, more than 10,000 motions for extensions of time to designate 
the record or file a brief, almost all unopposed, were filed and 
granted. Once the appellate record is ready, it is initially screened 
and reviewed by one of seven attorneys in the Court's Central Legal 
Staff to assess the issues and to determine if alternative resolution 
is possible. The case is then assigned to a judge for decision. The 
case is decided as quickly as practicable consistent with deliberative 
due process.
    Upon assuming the Chief Judge position in August 2005, I began to 
see the Court's increasing caseload. Starting in April 2005, we started 
receiving an average of more than 300 appeals each month compared to a 
monthly average of roughly 200 appeals during the previous 8 years. 
Accordingly, in fiscal year 2005, we had 3,466 new cases filed and 
decided 1,905 cases plus an additional 877 EAJA applications. In the 
final quarter of calendar year (CY) 2005 (which corresponds to the 
first quarter of fiscal year 2006), 907 new cases were filed; 573 cases 
were decided; 224 EAJA applications were resolved. During the first 
quarter of CY 2006, the upward trend in new cases continued. The first 
quarter total for CY 2006 (adjusted from figures provided on March 31, 
2006) was 1,009 new cases filed (400 received in March alone), 710 
cases decided, and 257 EAJA applications acted upon. This increase in 
appeals has persisted through the quarter just completed on June 30, 
2006. A total of 935 new cases were filed in April through June 2006, 
and 768 cases were decided. A total of 2,552 cases were filed in the 
first three quarters of fiscal year 2006. During that period, 2,051 
cases were decided and an additional 1,026 EAJA applications were acted 
upon. The Court is on pace to dispose of more than 2,700 cases this 
fiscal year--more cases decided than in all but one of the last 10 
years.
    I cannot fully explain the increase in new cases, but I attribute 
it to three factors: First, the Board of Veterans' Appeals is deciding 
more cases and among those are final decisions denying total or partial 
benefits. These decisions may be appealed to the Court. It must be 
noted that at the end of fiscal year 2005, the Board issued over 13,000 
total denials. Second, there is an increased awareness among veterans 
and their families of the existence of veterans appellate rights 
established by Congress. Third, there is a growing perception among 
veterans of the value of judicial review. There may be other variables 
at work, such as the trampoline effect of cases involving 
interpretations of the Veterans Claims Assistance Act, and increased 
emphasis on claims processing at VA. I expect this upward trend in new 
cases to continue. Indeed, a recent feasibility study prepared by the 
General Services Administration and two consultant companies concerning 
a potential Veterans Courthouse and Justice Center, estimated that an 
incoming caseload of 3,600 or more cases per year would ultimately 
require nine full-time judges and additional staff and the work space 
to accommodate these personnel. The growth in the number of judges and 
staff projected by the study assumes the standard of 430 average new 
cases per judge per year set by the Judicial Conference of the United 
States. The study also assumes that, for caseload projections beyond 
3,600 per year, the Court would top out at nine judges, and small 
spikes or additional caseload growth could be managed by recalled 
judges.
    More importantly, as to output of completed cases by the Court as 
presently constituted, by January 2005, for the first time in 6 years 
the Court was fully staffed to decide cases on appeal. The significant 
variable, however, was that--between January and August 2005--four 
judges had very little experience and did not acquire their full 
complement of staff until October 2005. Since then, their experience 
level has increased significantly and there has been a concomitant 
increase in the number of cases decided. The following comparison 
reflects these factors (also shown by Graph A, included with this 
testimony):

------------------------------------------------------------------------
                                                 New cases      Cases
                  CY quarter                       filed       decided
------------------------------------------------------------------------
1st Quarter CY 2005...........................          793          442
2nd Quarter CY 2005...........................        1,011          556
3rd Quarter CY 2005...........................          981          539
4th Quarter CY 2005...........................          907          573
1st Quarter CY 2006...........................        1,009          710
2nd Quarter CY 2006...........................          935          768
------------------------------------------------------------------------

    The Court's current docket, as of June 30, 2006 (figures adjusted 
July 6, 2006), contains 5,850 cases. See attached Graph B which shows 
the status of these cases. As depicted in Graph B, 3,598 cases are 
awaiting designation of the record on appeal and/or filing of appellate 
briefs by the appellant or counsel for the Secretary of Veterans 
Affairs, who is the appellee of record. Thus, these cases are not yet 
ready for screening or judicial review. There are 436 cases that have 
been decided but now are being appealed at the U.S. Court of Appeals 
for the Federal Circuit. These cases must be included in our statistics 
even though on appeal to another Court. Additionally, 106 cases that 
have been decided are pending entry of judgment, the period of time 
during which an appellant may seek reconsideration. Upon judgment, an 
appellant may then appeal to the Federal Circuit. Similarly, 308 cases 
have been decided but now await mandate, that is, the time the decision 
is considered final unless appealed. In this regard, Graph B also 
identifies 153 applications for attorney fees under the Equal Access to 
Justice Act that are awaiting a decision. These applications may only 
be filed after mandate. The Court's Central Legal Staff is currently 
screening and/or engaging in alternative dispute resolution in 326 
cases. This leaves 923 cases in chambers for judicial review and 
decision. Thus, 1,249 or about 20 percent of the total cases are 
available for screening, review, and decision. The Court has not 
defined ``backlog,'' but rather has looked to currency of caseload. 
However, as offered by a previous Chief Judge during budget testimony, 
a reasonable benchmark is, generally, to view as ``backlog'' any case 
that has been in chambers more than 6 months. As of the end of June 
2006, 354 cases (about 6 percent of the total docket) fell into that 
category. We continue to strive to decide those cases as quickly as 
allowed by the circumstances.
    We are reviewing and evaluating innovative ways to be as productive 
as we can be to reduce our pending caseload and to achieve currency--
but not at the expense of forfeiting due process or limiting the 
opportunity to give each case the benefit of our full and careful 
judicial review. Here are some of the actions that I have implemented 
or am considering to meet the challenges presented by the upsurge in 
appeals to this Court:
    First, I carefully track the productivity of all segments of the 
Court, including each judge and staff function. We are properly 
motivated and dedicated to rendering thorough and timely decisions.
    Second, our retired judges are recall eligible under 38 U.S.C. 
Sec. 7299. If recalled, a retired judge is statutorily obligated to 
serve 90 days each year. If a retired judge's circumstances permit and 
the judge so chooses, another 90 days of service may be provided for a 
maximum of 180 days in a calendar year. The critical piece in deciding 
to recall judges is to recall them at a time when their limited 
availability can be most useful. But, there are space and staffing 
issues accompanying any recall decision that must be addressed. The 
Court is budgeted to support one recalled judge with a clerk, 
secretary, and office; a bare-bones situation. To recall at least two 
judges at one time requires staffing them with three clerks and one 
secretary each, and to provide any required office space and security, 
at a cost of approximately $1.1 million. I am consulting with 5 of the 
6 retired judges concerning recall options and their availability 
within the next 6 months. We are also looking for ways in which their 
service might practically and productively be used with the least 
disruption to the Court and existing operations and procedures, and 
with most efficiency and efficacy to the appellate system and to 
veterans.
    Third, we are looking at the possible use of judges--either active 
or recalled judges--in settlement conferences.
    Fourth, we understand that the Court's Rules Advisory Committee is 
deliberating whether, in cases where the appellant is represented, to 
recommend use of a joint appendix as the record on appeal. A joint 
appendix is an encapsulated record on appeal that is limited to the 
documents from the designated record that principally are relied upon 
by both parties. This joint appendix could expedite review at the Court 
by focusing consideration on relevant documents. Currently, the rules 
of Court afford the parties at least 90 days to agree upon documents 
from the claims file that are relied upon for creating the record on 
appeal. Requests or motions to extend that time period normally are 
granted to insure a complete and accurate record. Using an agreed joint 
appendix would reduce the required review of voluminous records, as 
well as shorten the time to have the case ready for a judge's review.
    Fifth, in appropriate cases where the appellant is represented, we 
are considering adopting a practice often used in other Federal courts 
of summarily disposing of such cases without explanation. This option 
holds significant potential given the caseload in chambers. A summary 
disposition states only the action of the court, without giving its 
rationale. It might state something like, ``On consideration of the 
record on appeal and the briefs of the parties, the decision of the 
Board of Veterans' Appeals is hereby Affirmed/Reversed/Remanded.'' 
However, since the Court's inception one of the hallmarks of this 
Court's policy concerning the resolution of veterans' cases has been to 
provide to a veteran an explanation of the reasons for the Court's 
action. We have always adhered to that policy in disposing of single-
judge matters, as well as in panel decisions. Summary action is a 
departure from that policy but an action worth considering. The Court's 
rationale could possibly be explained by the appellant's counsel. This 
option as well as all the other options I have listed was highlighted 
at the Court's Judicial Conference in April 2006, which was attended by 
many of the Court's practitioners--both private attorneys and VA 
counsel as well as Veterans' Affairs Committee congressional staff.
    Sixth, we are working on implementing a case management/electronic 
case files system (e-filing). The Court is partnering with the 
Administrative Office of the United States Courts to purchase and use 
the software and e-filing system already developed for the Article III 
courts. Indeed, ten of the thirteen courts of appeals now have that 
capability. Our goal of having e-filing implemented within the next 2 
years now appears realistic. Such a system holds promise of providing a 
means to reducing some of the administrative delays associated with 
processing an appeal. Briefs could be filed faster, and if the 
Department of Veterans Affairs moves to a compatible paperless claims 
file, significant time savings could be achieved in obtaining an 
appellate record.
    The Court's Central Legal Staff has contributed mightily to case 
disposition, through their dispute-resolution efforts. We are 
considering other creative ways to make even greater use of the seven 
attorneys in that office in deciding cases faster. Certainly, for 
alternative dispute resolutions, we want the parties coming to the 
table to have full authority to commit to a thoughtful resolution 
consistent with the law, due process, and the interests of justice.
    Finally, the Court is continuing its efforts with the General 
Services Administration, to work toward making a Veterans Courthouse 
and Justice Center a reality. Our present space is or will be 
inadequate for the type of caseload we are now experiencing. The 
current lease of the commercial building expires in October 2010, so 
there is some urgency to this effort, since every feasible option for 
having an appropriate court facility for handling this increased 
appellate caseload requires several years of lead time. Adequate space 
is crucial if we are to make efficient use of recalled judges and any 
future full-time active judges in residence at the Court.
    Simply stated, we are looking for innovative ways to best meet the 
demands of an increased docket--but not at the expense of forfeiting 
due process or limiting the opportunity to give each case the benefit 
of our full and careful review. All may rest assured that no week at 
the Court goes by without a dialogue amongst the judges and staff on 
how to decide these cases in a timely manner and consistent with the 
knowledge that our veterans deserve the very best.
    On behalf of the judges and staff of the Court, we appreciate very 
much your past support and continued assistance.

[GRAPHIC] [TIFF OMITTED] T9716.044

[GRAPHIC] [TIFF OMITTED] T9716.045

   Response to Written Questions Submitted by Hon. Larry E. Craig to 
                      Hon. William P. Greene, Jr.
    Question 1. It is my understanding that many cases are terminated 
by the Clerk of the Court either because of procedural reasons or 
because the parties come to an agreement about the proper outcome. Do 
you track the percentage of cases that are ultimately decided by the 
judges, as opposed to the Clerk of the Court? If not, is it difficult 
to determine where delays may be occurring within the U.S. Court of 
Appeals for Veterans Claims (CAVC) or where the CAVC may need 
additional staffing?
    Answer. The Court is able to track which cases have been decided by 
the Clerk of the Court, and which by the judges. However, under the 
Court's current case tracking system, this process is not automated. 
Rather, it requires review of each category of cases and some manual 
counting of cases that bear the notation that they were decided by the 
Clerk. The automated system that the Court currently employs was 
designed to be a cost-effective tool for internal case management by 
the Chief Judge, and it does not produce automated reports on all 
variables affecting case completion.
    Even without automatic tracking of the percentage of cases decided 
by judges, as opposed to the Clerk of the Court, the Court is able to 
determine the most significant area where delays may be occurring. The 
case management system does track requests for extensions of time by 
the parties in connection with the steps required for case development, 
and these extensions appear collectively to be the most significant 
area of delay. In May and June 2006, for example, appellants or their 
attorneys filed 675 motions for extension of time; attorneys 
representing the Secretary filed 1,684 similar motions in the same time 
period. The parties must demonstrate good cause for these requests for 
extension, and then they are granted. Notwithstanding delays requested 
by the parties, and the time consumed by appropriate deliberation on 
each case, the median time for processing an appeal in this Court is 
less than the median time for the Federal courts of appeals included in 
the annual report of the Administrative Office of United States Courts 
providing Federal Courts Management Statistics for the Article III 
courts.
    The Court's caseload is reviewed constantly to determine if there 
is a need to adjust assignments or improve performance in any 
functioning unit within the Court.
    Question 2. The U.S. Court of Appeals for the Armed Forces annually 
submits to Congress a report including specific information regarding 
that Court's workload. For example, that report included charts and 
graphs setting forth the number and type of cases received during the 
year; the number, type and stage of cases pending at the end of the 
year; the number and type of decisions issued during the year; the 
number of days that elapsed from oral arguments to final decisions; and 
the number of days from filing of petitions to final decisions. Does 
the CAVC have the capability of tracking and reporting that type of 
information?
    Answer. No, the Court's automated case-tracking system is designed 
to provide statistics modeled after the statistical report issued each 
year by the Administrative Office of the United States Courts. Our 
annual reports include data on cases filed, the number of cases 
decided, the type of disposition (procedural or merits), the number of 
Equal Access to Justice Act (EAJA) applications for attorneys fees 
received and acted upon (also the nature of the resolution), the number 
of oral arguments, the number of appeals to the U.S. Court of Appeals 
for the Federal Circuit, and the average number of days for case 
disposition. (The Court is considering changing that last computation 
to that for the median number of days because that is the statistic 
measured by the Administrative Office of the United States Courts for 
the Article III courts of appeals, while the average number of days for 
case disposition is not measured.)
    Two of the categories identified in the report of the U.S. Court of 
Appeals for the Armed Forces (USCAAF) are not statistically significant 
for the USCAVC. First, in fiscal year 2005, the number of cases in 
which the USCAVC held oral argument (24) was relatively small, compared 
to the total number of cases decided (1,905). While the number of oral 
arguments conducted by this Court has increased, the ratio of argued 
cases to total cases decided remains small. Accordingly, a calculation 
of the number of days from argument to decision is not a measurement 
that would have much statistical relevance, and it is not tracked. 
Similarly, the number of petitions decided in fiscal year 2005 (144) 
represents only 8 percent of the 1,905 cases decided; thus the number 
of days to decision on a petition has not been tracked separately as a 
statistically relevant figure.
    Second, petitions filed with the USCAAF are typically petitions for 
review of decisions of the lower Courts of Criminal Appeals. The USCAAF 
may accept or deny those petitions for review. The USCAVC accepts for 
review all petitions and in half of these petitions directs the 
Secretary to answer the petition. The answer to a petition triggers a 
full merits review in this Court. In fiscal year 2005, the USCAAF 
received fewer than 1,000 new cases, including 779 requests for review. 
That Court issued 64 signed opinions. The USCAVC received nearly 3,500 
new appeals and petitions, and this Court issued 1,281 merits 
decisions, including 271 affirmances, 257 reversals and remands, and 71 
decisions denying extraordinary relief, all of which were signed 
decisions.
    Question 3. Although I recognize that the CAVC's productivity has 
been improving in recent months--and appreciate your efforts in that 
regard--the CAVC expects to receive 900 more cases this year than it 
expects to decide. In your testimony, you mentioned a number of 
possible measures that could be taken to help deal with this situation 
by increasing case output. Do you expect to implement any of those 
measures in the next 6 months or the next year?
    Answer. Yes, I do expect to implement some of the measures 
mentioned in my testimony. They are the same measures I outlined in 
discussions with you and your staff, as well as with the attendees at 
the Court's Judicial Conference held in April 2006. Please see my 
response to Question 5 for a discussion of one of the measures, 
recalling retired judges. In addition, our active judges, sitting as 
the ``Board of Judges''--the body that sets policy for the Court's 
operations--soon will be considering the formal proposal from our Rules 
Advisory Committee that would allow the filing of a joint appendix. The 
Court continues to study the advisability of summary dispositions under 
certain circumstances.
    Question 4. In the CAVC's annual report, the CAVC includes the 
average time ``from filing to disposition'' of cases decided during the 
fiscal year. That performance measure appears to include the time 
required to dispose of both petitions and appeals. It also appears to 
include dispositions rendered by a single judge, as well as those 
rendered by a panel of judges.
    Question 4a. Would this be a more useful and accurate measure of 
performance if petitions and appeals were tracked separately?
    Answer. Because the total number of petitions filed per year has 
been holding fairly steady at less than 8 percent of the Court's total 
caseload, tracking those cases separately does not appear to be a 
useful case management tool at this time. Also, over the next 2 years, 
the Court will be in the process of changing its case management system 
to the CM/ECF system developed by the Administrative Office of the 
United States Courts. It would appear to be unwise to create new 
automated tracking and reporting requirements for the case management 
system that is being phased out. We do not know at this time what the 
total capabilities of the new system will be when it is fully 
implemented.
    Question 4b. Would it be a more fair and useful performance measure 
if the time to decide single-judge decisions was tracked separately 
from the time to decide more complex panel dispositions?
    Answer. Currently, restructuring the Court's case tracking system 
to separate single-judge decisions from more complex panel dispositions 
is not the best use of staffing and technical assets as we begin the 
transition to the CM/ECF case management system.
    Question 4c. Does the CAVC track the average time from filing of 
Equal Access to Justice Act applications to disposition?
    Answer. No, the average time from filing of Equal Access to Justice 
Act applications to disposition is not presently tracked.
    Question 5. In your testimony, you indicated that you were 
consulting with several retired judges regarding their availability 
within the next 6 months and that you were assessing how the CAVC could 
most effectively use recalled judges. Would you please provide the 
Committee with an update on the status of those efforts?
    Answer. Two recalled judges will begin service in September 2006. 
Two other recalled judges will be scheduled to begin service on or 
after January 2007. Modifications to existing space have been made to 
accommodate these judges and support staff. I will be submitting to 
Congress a request for a supplemental appropriation for fiscal year 
2007 to fully staff chambers for two recalled judges. I will continue 
to analyze the situation to determine the best uses, availability, and 
staff needs for these judges so that they are used efficiently. The 
experience gained from this initial use of recalled judges will provide 
a basis for these judgments.

  Response to Written Questions Submitted by Hon. Daniel K. Akaka to 
                      Hon. William P. Greene, Jr.

    Question 1. In your March 2006 testimony before the House Military 
Quality of Life and Veterans Affairs Appropriations Subcommittee, you 
stated that you were confident that the Court could continue to reduce 
the backlog and adjudicate new cases quickly. Given the increase in 
cases coming before the Court, and resource limitations for recalled 
judges that you mentioned in your testimony, can you make that same 
assertion now?
    Answer. My assertion in March 2006, was based upon the success the 
``new'' Court had achieved in conducting appellate review and deciding 
cases since August 2005. The four newest judges and their staffs had 
gained experience and the numbers of cases decided were increasing. The 
400 new cases received after my testimony in March 2006, and the 300-
plus new cases per month we have received since then appears to have 
become the norm rather than a temporary spike. The potential use of 
summary dispositions, a recall of retired judges, and employing an 
accompanying staff for the recalled judges should assist in meeting the 
demands of this heavy caseload. I remain optimistic that we will 
continue to resolve a large number of cases, keeping in mind that while 
we must administer justice, every veteran adversely affected by a Board 
of Veterans' Appeals decision, by right, may appeal to the Court. 
Indeed, as was raised during my testimony before the appropriations 
subcommittee, if appeals continue at the current level, there will be a 
need to authorize the appointment of two additional active judges to 
ensure that we provide to veterans timely and quality decisions.
    Question 2. Judge Greene, you noted today that you will not have an 
idea of how many judges might not want to be recalled until you send 
them their recall letter. Retired Tax Court judges must reaffirm 
annually their availability to be recalled. Do you see a benefit in 
retired U.S. Court of Appeals for Veterans Claims (CAVC) judges doing 
the same?
    Answer. I do not see a benefit in requiring retired CAVC judges to 
reaffirm annually their availability to be recalled. Under 38 United 
States Code section 7257(a)(1), a judge of the Court upon retirement, 
must provide to the Chief Judge written notice that he or she is 
available for further service and is willing to be recalled. Although 
this notice is irrevocable, if a recall-eligible retired judge is 
recalled but declines to perform the service to which recalled, the 
Chief Judge shall remove that retired judge from recall-eligible judge 
status. Thus, there is every reason to believe, or to presume, that if 
recalled, the CAVC recall-eligible judges will serve. Before recalling 
them I must be able to accommodate them logistically and to staff them 
appropriately. Because there are only six judges in this recall-
eligible status, it is relatively easy to consult with them concerning 
their availability.
    Question 3. How should court efficiency be measured?
    Answer. The role of an appellate court is to provide review of 
decisions of lower tribunals, and as the final arbiter of disputes, to 
shape and define the law. There are many areas involved with measuring 
a court's efficiency. Is the court protecting the rule of law? Does the 
court develop, clarify, and unify the law? Does the court provide 
review sufficient to correct prejudicial errors? Does the court give 
each case adequate consideration and are the decisions based on legally 
relevant factors, thereby affording every litigant the full benefit of 
the judicial process? Are the cases managed effectively and resources 
used efficiently and productively? These standards are part of the 
Appellate Court Performance Standards promulgated by the National 
Center for State Courts and are helpful to appellate courts in 
assessing performance. The CAVC is guided by these performance 
standards, and in conducting its business, also adheres to the policies 
of the Administrative Office of U.S. Courts.
    Considering the numbers of cases decided as one factor in the 
overall measurement, I point out that at the end of the third quarter 
of fiscal year 2006, the Court had decided 2051 cases. During that same 
period, the Court received 2552 cases. That results in a clearance rate 
of almost 80 percent. If this trend continues in the last quarter, we 
will have decided more than 2700 cases, more cases decided than in all 
but one of the last 10 years.
    Further, each fiscal year, the Administrative Office of the U.S. 
Courts publishes a judicial caseload profile of the U.S. Courts of 
Appeals. That profile provides specific information concerning 
appellate caseloads in individual U.S. Courts of Appeals as well as 
national totals. The reported national median time in fiscal year 2005 
(the most current statistics available) from the filing of a notice of 
appeal to the disposition of a case was 11.8 months. The profile does 
not include CAVC statistics. Our median time for processing cases 
(number of days from the filing of the notice of appeal to disposition) 
for the first three quarters of fiscal year 2006 was 334 days, or 11.1 
months.
    In short, appellate court efficiency is not measured solely by 
numbers of cases received against numbers of cases decided. It is 
measured by a combination of all of the above factors, to ensure the 
effective and efficient administration of justice.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John Thune to 
                      Hon. William P. Greene, Jr.

    Question. Judge Greene, could you provide feedback to me on the 
issue of putting the appellate process of the Court of Appeal for 
Veterans Claims in line with the appellate process of the Court of 
Appeals for the Armed Forces? What are your thoughts on this idea?
    Answer. Thank you for your question and for your interest in 
veterans law and in our Court. You have asked for my input on the issue 
of bringing the appellate process of the United States Court of Appeals 
for Veterans Claims (USCAVC) in line with that of the Court of Appeals 
for the Military (CAM), otherwise known as the United States Court of 
Appeals for the Armed Forces (USCAAF). Your statement prefacing the 
question identifies your specific concern on whether review of USCAVC 
decisions by the United States Court of Appeals for the Federal Circuit 
(Federal Circuit) should be eliminated and that, like decisions of the 
USCAAF, appeals of our decisions should go directly to the Supreme 
Court of the United States (Supreme Court) by writ of certiorari.

                            I. INTRODUCTION

    My initial comment regarding the value of any layer of appellate 
review must begin with 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.). 
Accepting that no amount of review can produce results that are 
infallible, the question becomes: ``Does an additional layer of 
appellate review add benefits that outweigh the associated costs? '' I 
will use this inquiry to frame my response to your question.

       II. THE POTENTIAL BENEFITS OF ADDITIONAL APPELLATE REVIEW

    The specific question you have asked requires an examination, 
first, of whether Federal Circuit review benefits veterans law in a way 
that USCAVC review does not. Here are my observations:
    (1) Independence: A primary reason for appellate review is to have 
agency decisions reviewed by a body that is independent of the original 
decisionmaker. Like the Federal Circuit, the USCAVC is wholly 
independent of the Department of Veterans Affairs. Structurally, 
therefore, review by the Federal Circuit is not needed to introduce an 
independent body.
    (2) Uniformity: A unified appellate tribunal brings clarity and 
uniformity to an area of law. Uniformity was one of the goals of the 
creation of the USCAVC, an option selected over the alternative of 
placing judicial review of VA benefits decisions in the Federal 
district courts. Within VA, Veterans Law Judges who staff the Board of 
Veterans' Appeals (Board) are not bound by one another's decisions, and 
different panels of the Board can reach inconsistent decisions on 
claims by similarly situated benefits claimants. However, panel 
opinions issued by the USCAVC are precedential and provide binding law 
on future cases before the Court and upon claims ajudication within VA.
    Before being issued, every decision of the USCAVC--either by a 
panel or a single judge--is circulated to the full court for at least 1 
week for comment and input. Comments on circulating decisions are 
relatively frequent and serve to clarify bases of decisions. In 
addition to the comment process, the judges of the USCAVC share an 
internal data base of issues that are presently being considered by 
three judge panels. This allows each judge to quickly identify pending 
cases where precedential arguments have already been scheduled, thus 
promoting efficient case management and consistent, uniform action on 
such issues. The USCAVC is not permitted to communicate with the 
Federal Circuit in this manner. Thus, the decisions of the two courts--
particularly written during overlapping time-frames and addressing 
similar issues--may contain language that creates uncertainty when 
compared to each other.
    (3) Experience: When the USCAVC began operations in 1989, it faced 
many issues concerning its role as a new Federal court. The Federal 
Circuit was established in 1982, and that court's early case law 
addressing its own creation and role was highly relevant in the 
formative years of the USCAVC. Both courts had to establish their roles 
in close proximity to each other. However, the USCAVC has now been 
operating for nearly 17 years; it has decided over 25,000 cases and has 
written 19 volumes of precedential case law (found in the West Reporter 
Series, Veterans Appeals Reports) to shape its future decisions.
    (4) Expertise: Once appointed, a judge on the USCAVC reviews only 
veterans benefits cases. In contrast, the Federal Circuit's 
jurisdiction is varied and includes review of diverse types of appeals 
other than veterans law, including patent and trademark claims, 
government contracts disputes, international trade appeals, and Federal 
employment actions. From May 1, 2005, to April 30, 2006, only 15 
percent (247 of 1,636) of the new cases filed at the Federal Circuit 
were appeals of USCAVC decisions. Also, because the Federal Circuit's 
jurisdiction to review USCAVC decisions is limited to reviewing 
questions of law, see 38 U.S.C. Sec. 7292, that court is not called 
upon to apply its rulings to the evidence in specific cases. The bottom 
line is that the USCAVC is a court of special jurisdiction that 
Congress created to have expertise in veterans law, while the Federal 
Circuit by its structure and nature is not.
    The issue of focused expertise also applies to the practitioners 
before the two courts. The appellants' bar is strong and is maturing in 
expertise before both courts. Before the USCAVC, VA represents itself 
with its own appellate attorneys who are specialized with years of 
departmental expertise in veterans law. Before the Federal Circuit, 
however, VA is represented by the Commercial Litigation Branch, Civil 
Division, U. S. Department of Justice, whose attorneys are generalists.
    (5) Appearance: Beyond objective structural criteria, an appellate 
body can have a special relationship with an area of law. As the 
USCAVC's jurisdiction is solely veterans law, the Court's relationship 
to that jurisprudence is clear.
    It is worth noting that, during the Federal Circuit's May 2006 
Judicial Conference, the panelists discussing ``The Most Important 
Issues Facing the Federal Circuit in the Next Ten Years'' mentioned 
veterans law only once in an hour-long analysis. That reference was a 
remark by panelist former Solicitor General Seth Waxman that he had 
never handled a veterans law case before becoming Solicitor General. No 
other panelist (District Judge Kent Jordan, Deputy Solicitor General 
Thomas Hunger, and Professors Christopher Yukins and Kimberly Moore) 
mentioned the veterans law component of the Federal Circuit's 
jurisdiction.

             III. THE COSTS OF ADDITIONAL APPELLATE REVIEW

    (1) Time: Federal Circuit review lengthens the processing time for 
veterans' cases. A case appealed to the Federal Circuit may take 1 or 2 
years for development and resolution. Moreover, if the Federal Circuit 
overrules or reverses a ruling of law by the USCAVC, it usually remands 
the matter back to the USCAVC for further proceedings, adding yet more 
months to the process. Often, another remand to the Board is required 
for a new adjudication. This process can occur more than once in the 
same case.
    One particular type of delay should also be noted. Often a lead 
case at the USCAVC will decide an issue common to numerous cases. While 
the lead case is on appeal to the Federal Circuit, the USCAVC will 
apply the law of that case to similar pending cases. If the Federal 
Circuit disagrees with the USCAVC ruling of law in such a case, the net 
result is mass remands, or the USCAVC stays all related matters pending 
decision on the lead case by the Federal Circuit. Appeals to the 
Federal Circuit have also resulted in stays at the VA and Board levels, 
imposed by the Secretary and Board Chairman. See Brown v. Gardner, 513 
U.S. 115 (1994); Smith v. Nicholson, 19 Vet. App. 63 (2005).
    (2) Effect on Settlement Negotiations: Finally, I believe that 
because jurisdiction exists in another Federal appeals court, parties 
have less incentive to negotiate settlement in the USCAVC; a losing 
party can once again argue its case in the Federal Circuit.

                 IV. COMPARISON OF THE USCAVC TO USCAAF

    You have asked me to compare the USCAVC to the USCAAF. First, both 
the USCAVC and the USCAAF are courts of special jurisdiction, created 
under Article I of the U.S. Constitution. Both have expertise in the 
area of law they review. Next, the USCAAF provides review of criminal 
cases within the military, sometimes involving loss of liberty or life 
by a convicted service member; the USCAVC reviews civil actions, 
appeals of denials of claims by veterans for benefits of monetary 
value.
    The following is a comparison of action and review within the 
military justice system and the veterans justice system:

------------------------------------------------------------------------
         ACTIONS/REVIEW                 USCAAF              USCAVC
------------------------------------------------------------------------
(1) Initial Action..............  Court Martial (10   VA regional office
                                   U.S.C. Sec.  836).  adjudication (38
                                                       U.S.C. Chapter
                                                       51).
(2) Below Court Level Review....  Review by military  Review by Board of
                                   Court of Criminal   Veterans' Appeals
                                   Appeals             on record of
                                   established by      regional office
                                   Judge Advocate      proceeding and
                                   General of each     ``all evidence
                                   Service branch      and material of
                                   (10 U.S.C. Sec.     record'' (38
                                   866); limited to    U.S.C. Sec.
                                   review on record    7104).
                                   at Court Martial.
(3) Article I--Specialized Court  Appeal or petition  Appeal or petition
 Review.                           to USCAAF (10       to USCAVC (38
                                   U.S.C. Sec. 837);   U.S.C. Sec.
                                   review on record--  7252); review on
                                   no new evidence.    record--no new
                                                       evidence.
(4) Article III--Court of         None..............  Appeal to Federal
 Appeals Review.                                       Circuit (38
                                                       U.S.C. Sec.
                                                       7292); limited to
                                                       review of matters
                                                       of law--no review
                                                       of factual
                                                       determination or
                                                       challenge to law
                                                       or regulation
                                                       applied to facts
                                                       of particular
                                                       case.
(5) U.S. Supreme Court Review...  Upon petition for   Upon petition for
                                   writ of             writ of
                                   certiorari from     certiorari, from
                                   USCAAF (28 U.S.C.   decision of
                                   Sec.  1259).        Federal Circuit
                                                       (38 U.S.C. Sec.
                                                       7291).
------------------------------------------------------------------------

    When USCAAF was founded in 1951, its decisions were not originally 
appealable directly to the Supreme Court by writ of certiorari. Rather, 
an appellant was required to seek a writ of habeas corpus at the 
district court level raising a constitutional issue, which resulted in 
review as of right by a Federal court of appeals before there was 
potential for review by the Supreme Court. However, in 1983, Congress 
changed the USCAAF statute to provide for direct review of USCAAF 
decisions by the Supreme Court, Pub. L. No. 98-209 (1983); see 28 
U.S.C. Sec. 1259. Writing to Congress in support of the legislation, 
then-Secretary of Defense Caspar Weinberger wrote that the legislation 
would ``improve the efficiency and effectiveness of the military 
justice system by eliminating redundant procedures.'' (Letter of Hon. 
Caspar Weinberger to Hon, Melvin Price, Sept, 15, 1983). The 
legislation was enacted in a manner limiting the number of cases 
subject to direct Supreme Court review. The Supreme Court was given 
``complete discretion to refuse to grant petitions for writs of 
certiorari'' and ``[c]ontrol over government petitions [would] be 
exercised by the Solicitor General.'' H. Rep. No. 98-549, at 17 (1983).

                             V. CONCLUSION

    Whether the role of the Federal Circuit in this area of law is 
appropriate is a question for Congress to decide. Whether Federal 
Circuit review has a ``good,'' ``bad,'' or ``neutral,'' influence on 
the substance of veterans law is a policy question upon which I cannot 
comment. Rather, this response reflects my view of the factors that 
should be considered by Congress in evaluating the structural 
usefulness of Federal Circuit review of USCAVC decisions.

                       RETIRED JUDGES' STATEMENT

    Independent judicial review by the United States Court of Appeals 
for Veterans Claims (USCAVC) has been a real success by requiring that 
Department of Veterans Affairs decisionmaking be based on the real 
evidence and legal analysis often previously missing from such 
decisionmaking. Judicial review has done much to bring about accurate 
Board of Veterans' Appeals (Board) decisions and has helped ensure 
fairness to our nation's veterans.
    That said, judicial review has contributed to the intertwined 
problems of delay and backlog in finalizing decisions. Under existing 
law, there are four levels of possible appeal--one administrative 
appeal to the Board and THREE levels of possible judicial appeal to 
USCAVC, the United States Court of Appeals for the Federal Circuit 
(Federal Circuit), and the Supreme Court of the United States (Supreme 
Court). Stated simply, this is more justice than the system can bear. 
Indeed, justice delayed is justice denied and the problems of judicial 
delay and backlog cannot be fixed without reforming the present 
judicial process.
    The review of the decisions of one intermediate Federal court of 
appeals by another intermediate Federal court of appeals is singularly 
unique in the Federal court system. We are not aware of any comparable 
situation. It should be noted that the judges of both courts are 
subject to similar selection, nomination, and confirmation procedures. 
However, the primary focus and expertise of the Federal Circuit has 
been and will remain intellectual property matters. On the other hand, 
USCAVC has far greater expertise in veterans law because the court's 
sole business is the interpretation of the statutes and regulations 
applicable to veterans' claims. The wholly redundant review of USCAVC 
decisions by the Federal Circuit serves no real purpose, other than 
providing another bite at the apple. That is, the party who has lost at 
the USCAVC will have a third opportunity to attempt to demonstrate the 
rightness of that party's view. This superfluous review draws out the 
appellate process and adds to the caseload of both courts. An appeal to 
the Federal Circuit often carries with it a year or more of the 
claimant's life and in the event of a Federal Circuit remand back to 
the USCAVC, another year can be added on, to say nothing of the 
additional years that will be involved if the USCAVC must in-turn 
remand the case back to the Board.
    Once a decision is appealed to the Federal Circuit, other cases 
involving the same or related issues, sometimes amounting to scores of 
cases, may be put on hold at the USCAVC pending disposition by the 
Federal Circuit. Moreover, a Federal Circuit remand in one case, 
because it is precedent, may require that tens, if not sometimes 
hundreds, of cases at the USCAVC be reworked. Because Federal Circuit 
rulings are rarely clear-cut as to how they might apply in analogous 
cases, significant confusion often results, causing further delay in 
the review of cases pending at the USCAVC. It is our considered view, 
given our some 70 years of collective full-time experience in veterans 
law, that Federal Circuit review creates approximately a 35-40 percent 
increase in the workload of the USCAVC.
    Furthermore, it is a needless expense to the litigants and the 
taxpayers. For example, two groups of appellate lawyers are needed to 
represent the government. One group, employed by the Department of 
Veterans Affairs, practices only before the USCAVC. The other group, 
employed by the Justice Department, largely re-plows the same ground in 
appeals to the Federal Circuit. Not only is this grossly wasteful to 
the taxpayer, but it has been the experience of those of us who have 
served many years as USCAVC judges and are familiar with the briefs 
filed in both courts, that the Justice Department attorneys are often 
not as knowledgeable as they sometimes should be concerning the 
veterans' claims system, thus they fail at times in the important duty 
of an appellate lawyer, to provide expert guidance to the Federal 
Circuit concerning the sometimes esoteric bypaths of veterans law.
    At some point the question must be asked as to whether there is 
sufficient value added to the accuracy of decisionmaking to justify the 
inherent additional amounts of time and money needed, to say nothing of 
the confusion created, for review in both the USCAVC and the Federal 
Circuit. Judicial accuracy, unfortunately, is really an art-form, 
rather than a science, and like beauty, is in the eye of the beholder. 
Invariably, the winning party believes that the decision is accurate 
and the losing party takes a contrary view.
    Even assuming that the Federal Circuit is always more ``accurate'' 
than the USCAVC, a review of the Federal Circuit website shows that the 
latter reverses the former in approximately 7 percent of the cases it 
reviews. It is debatable whether a ``better'' result in about seven of 
every 100 cases can justify the additional time, work, confusion, and 
cost inherent in two layers of Federal intermediate appellate review. 
Again, it is our collective view, that because of the exclusive nature 
of its work, the USCAVC, rather than the Federal Circuit, has the best 
understanding of the subject matter and awareness of the systemic 
impact of its decisions on the veterans' administrative adjudication 
system. Accordingly, we conclude that a significant number of reversed 
cases should not have been reversed so that the value-added accuracy of 
Federal Circuit review is a much lower percentage than that reflected 
on the website.
    One further point needs to be made about the impact of the present 
system on the VA adjudication process. The VA is often caught between a 
rock and a hard place. The USCAVC tells it to do one thing, then the 
Federal Circuit may or may not tell it to do something else. The net 
result is that the VA is never sure whether the Federal Circuit will 
back the USCAVC or scold it. And even where the specific case under 
consideration is not brought to the attention of the Federal Circuit, 
the VA still must contend with prior edicts of the Circuit that may 
seem inconsistent with what the USCAVC is not requiring it to do.
    Finally, the interposition of another appellate court inevitably 
creates the perception that the USCAVC is not quite up to snuff in the 
same way Congress regards the United States Court of Appeals for the 
Armed Forces (USCAAF), and is perhaps not a ``real'' court at all. 
Whatever reasons led to this redundant review and were thought valid 18 
years ago when the USCAVC was established, they have certainly been 
proven wrong by time in light of the 25,000 cases disposed of by the 
USCAVC and the 19 volumes of reported cases. The bottom line is that 
this expensive and wholly unnecessary review by the Federal Circuit 
makes little sense and certainly does nothing to move cases along. 
Those who would defend the status quo have a heavy burden to show in a 
concrete way that the additional time and expense produce real benefits 
that outweigh the serious defects noted above.
    If review of an Article I appellate court by an Article III court 
is deemed desirable or necessary, surely the appropriate model is the 
USCAAF. The decisions of the USCAAF, a specialized Federal court of 
appeals similar to the USCAVC, are directly reviewed by the Supreme 
Court by means of a Writ of Certiorari. It is our understanding that 
when Congress, after many years without any type of direct Article III 
review of military criminal cases, provided for certiorari to the 
Supreme Court, it wisely turned down an alternative proposal that would 
have interposed another Federal intermediate court of appeals (the 4th 
Circuit) between the USCAAF and Supreme Court review.
    The USCAAF model is a proven system that is clearly the most 
appropriate for the USCAVC.

Submitted by:
Chief Judge Frank Q. Nebeker, Retired
Judge Kenneth B. Kramer, Retired
Judge John J. Farley, III, Retired
Judge Ronald M. Holdaway, Retired
Judge Donald L. Ivers, Retired

    Chairman Craig. Judge, thank you very much.
    We have been joined by Senator Patty Murray. She is 
managing the floor at this moment on the issue before us, so I 
am going to turn to her for comments she would like to make 
prior to her returning to the floor. Patty, thanks for coming 
over today.

                STATEMENT OF HON. PATTY MURRAY, 
                  U.S. SENATOR FROM WASHINGTON

     Senator Murray. Mr. Chairman, thank you so much for your 
accommodation. I really appreciate it. I did just want to come 
for a few minutes and just thank the Chairman and the Ranking 
Member for having this really critical hearing on this 
important issue that is facing our veterans and our families.
    I am deeply concerned about this. We have veterans who are 
waiting 18 months. We have soldiers coming home from Iraq and 
Afghanistan who are waiting in long lines to get their 
benefits, and 18 months without an appeal; with an appeal, it 
can add 9 months to a year more to that and that just to me is 
unacceptable. I think that we, in fact, heard from the VA 4 
weeks--a month ago--that they were worried about allowing 
veterans access to counsel during the entire appeals process 
because it would jam up an already backed-up system.
    That, to me, is deeply disconcerting and I want to work 
with you, Mr. Chairman and Senator Akaka, to do whatever we can 
do to help speed this up and I really do appreciate your having 
this hearing and diving into it and trying to find out what the 
backups are and how we can help alleviate that. I just wanted 
to let you know I am willing to work with you on that as we go 
through this.
    I do have to manage the floor. My staff is here and I will 
be following up with all the testimony. Judge Greene, thank you 
so much for being here to share your insights. Thank you.
    Chairman Craig. Senator Murray, thank you.
    Judge, again, thank you for your presence here this morning 
as we look at how we might assist you and the Court in 
stabilizing this workload in a way that produces some immediacy 
of return or at least a reasonable return to the appeals and 
the individuals that are before you.
    According to a report that the Ranking Member and I 
recently requested from the Congressional Research Service, and 
you have already broached this in your final thoughts this 
morning, an Article I court routinely recalls retired judges, 
but the Veterans' Court has never done so. The report reflects 
that the staff at the Veterans' Court explained that no judges 
have been recalled because the Court has been able to meet its 
caseload needs with its current complement of active judges.
    We all know that times have changed. Looking at the charts 
behind me, and listening to your comments, they are in sync. I 
guess I can use the term in the fiscal sense, ``The court is in 
the red.'' For most of the last 8 years, there has been an 
unprecedented level of pending cases. Do you believe the court 
is meeting the workload needs as we speak?
    Judge Greene. If I may preface some of my answers----
    Chairman Craig. Surely.
    Judge Greene. I have to admit that I wish the Congressional 
Research Service had asked me that question. I think I would 
have given a little slightly different answer. You have to know 
that the recall provision was authorized in 1999-2000 and after 
that, we only had one judge that was retired. And then we also 
had legislation saying that we were going to be able to have 
nine judges temporarily on the Court, so there was a lot of 
give and take on waiting for those judges to come forth and sit 
with us. That never occurred.
    Consequently, we still didn't have a retired, recall force 
that was available to do the kind of work for these numbers of 
cases until four judges all of a sudden retired at once, or 
within a year of each other. The last two of those judges 
retired in 2005. So now, I have a recall force, if you will, to 
commit to the mission.
    Chairman Craig. I understand and I think the Committee 
understands those dynamics. I am appreciative of your looking 
at and putting into the queue of ideas and decisions you may 
make as it relates to recall. I guess my reaction is, if this 
situation does not warrant a recall of judges, what would?
    Judge Greene. It does perhaps warrant that, and that is why 
I am now consulting with the recall judges for their 
availability in the next 6 months.
    Chairman Craig. Something else that I think the Committee 
needs to know, as it relates to recall, is that other Article I 
courts, such as the U.S. Court of Federal Claims, routinely 
recall judges. It is part of how they deal with their caseload. 
One important distinction is that the other courts generally 
pay retired judges the active judge salary only if they are 
actually performing the work, whereas retired judges from this 
court, Court of Appeals for Veterans Claims, receive the same 
pay as active judges regardless of whether they perform any 
work. Is that a valid statement, Judge?
    Judge Greene. Is it a valid statement that they receive----
    Chairman Craig. What I just said, that they receive active 
pay?
    Judge Greene. They do.
    Chairman Craig. As a retired judge----
    Judge Greene. If they----
    Chairman Craig [continuing]. Whereas other courts only if 
they are recalled?
    Judge Greene. If they indicate that they would be available 
for recall.
    Chairman Craig. And my reaction as a fiscally responsible 
Senator is if we are not getting our bounce for the buck, we 
are going to cut the buck a little bit. We have people hired, 
in essence, who are by definition retired, but hired to be 
active. We are paying them accordingly. I had the privilege of 
visiting your chambers and visiting with you, and Norman took 
us around. We looked things over. I know you have two chambers. 
I know that you utilize them for other purposes at the moment. 
At the same time, with the appropriate staffing, you have the 
availability, it is my understanding--am I correct--in adding 
up to at least two judges in your current facility?
    Judge Greene. I would have to refer that to----
    Chairman Craig. Norman.
    Mr. Herring. Mr. Chairman, we do have one dedicated chamber 
for a recalled judge and we have a meeting room, and we would 
have to convert that, just like you did during the period of 
time while the Hart Building was closed, this room was used for 
other purposes. That would be what would happen. We would take 
an existing meeting room and convert it to a judge's chambers. 
It wouldn't be like most other judges' chambers that they are 
used to. But for a recalled judge, it is possible.
    Chairman Craig. And I will stop at this point and turn to 
my colleagues. I guess my point is this. If space is an 
important issue--and I don't disagree with that, you have to 
have elbow room--I believe you have the room for at least two 
judges. I think we have visited about that. I understand that 
in some instances, filing is important, but I also understand 
that filing can be done somewhere else.
    I understand that your lease is up in 2010. That is a long 
way off in relation to this workload and getting it under 
control and heading it down. I would have to think that with 
the resources we could help make available in relation to 
bringing online judges, this appears, at least to me, to be a 
responsible decision and forward movement in dealing with this 
growing problem. If you don't stem the growth of the backlog, 
it continues to grow by all definition and that in itself could 
almost become unsurmountable, whether there are seven judges or 
nine judges working full-time, or seven judges and recalled 
judges.
    That is how I am looking at the math at the moment, because 
in all fairness, we have added staff at your request 
consistently over the last several years as it relates to those 
who evaluate your cases and do all of that. Yet, our numbers 
are not changing as significantly as I think the Congress had 
hoped they would.
    With that, let me turn to my colleague, Senator Akaka.
    Danny.
    Senator Akaka. Thank you very much, Mr. Chairman.
    Judge Greene, you did mention that in the year 2010, you 
may have a new facility housing the Court. Do you anticipate 
proposing that the Court be expanded to nine judges at that 
time or prior to that time?
    Judge Greene. Well, the study was based on the projections 
from the current trend, 3,600 cases. Obviously, sir, I would 
certainly support a request to increase the size of the Ccourt 
if our case number stayed at that level for the next 5 years. 
There is every indication--I would not certainly predict that 
it won't. Just last year, the Board decided 13,000 total 
denials, and if we have legal representation across the board, 
then there is certainly going to be more possibility for 
appeals.
    So I am monitoring that from now to 2010. At 2010, when we 
are bursting at the seams where we are currently located, we at 
least should have a new facility, the necessary space to 
accommodate the Court as it is configured. If it is at nine 
judges at that time, then we are set to go.
     Senator Akaka. Judge Greene, can you talk about the 
potential benefits and pitfalls of employing summary 
disposition at the Court?
    Judge Greene. The pitfall is that this Court has prided 
itself for 16 years of giving to the veteran an explanation for 
the decision, be it a single-judge decision or certainly a 
panel decision. As I expressed in my prepared statement, this 
summary disposition would be for cases where veterans are 
represented, not cases where the veteran doesn't have a lawyer. 
But if we had the kind of case that could be simply resolved 
based on legal precedent, that may, in fact, enable us to get 
rid of the case faster than having to write a decision, 
circulate it amongst ourselves, because that is part of our 
internal operating procedures for the protection of the 
judicial process, and then we would avoid that period of time 
and then be able to issue the case right away. But the pitfall 
certainly is that we abandon this well-regarded tradition that 
we had in providing an explanation to the veteran.
     Senator Akaka. I understand that up to this time, we have 
not been using retired judges. From your discussions with 
retired judges, Judge Greene, of those retired judges who are 
eligible for recall, do you have any sense of how many would be 
willing to accept recall?
    Judge Greene. I am presuming they all are willing, since 
they indicated that--they signed up for it.
     Senator Akaka. During your tenure as Chief Judge, why have 
there been no judges recalled?
    Judge Greene. I have not recalled any, simply because in 
the 11 months that I have been the Chief Judge, I have been 
taking a look at the landscape to see what has to be done. I 
guess I have kind of likened it to a military commander who is 
fighting a battle and knows the circumstances and depending on 
the circumstances of that battle, when to commit the Reserves. 
And so that is why I have given the ready alert and consulting 
with these judges now to determine their availability in the 
next 6 months.
     Senator Akaka. Let me ask my final question before my time 
is up. Realistically, Judge, how many cases do you believe a 
recalled judge could dispose of in 90 days, and how many in 180 
days?
    Judge Greene. Well, the last part of that, the 180 days is 
critical because that is the period where the recalled judge 
has to consent to hang around. For the 90-day period--and that 
is what my challenge is, to determine what best the judge can 
do in the 90-day period. Can the judge serve on a panel of 
judges to decide a case that requires oral argument, drafting 
of an opinion, circulation of that opinion? If so, perhaps one 
or two.
    If it is a single-judge decision, then--this is in the 90-
day period--if it is a single-judge decision, depending upon--
well, all the judges are experienced, so that is a big factor. 
We have a very wishful goal of a clerk doing two cases per 
week. That is based on the experience level of the clerk, too, 
of course. But if a clerk can do two cases a week, then for the 
90 days, you can do the math on that and you would say that is 
potentially the number of cases of single-judge decisions that 
a judge could do.
    What I am really hoping for, too, is to examine the process 
to see if these judges can also be more effective in the 
mediation process, where they perhaps work with the parties 
before the case even gets to a judge for review, and that is 
just going to take time to do, but I have got the time, at 
least while I am Chief Judge and these individuals are recall-
eligible.
     Senator Akaka. Thank you, Mr. Chairman.
    Chairman Craig. Senator Akaka, thank you.
    Senator Jeffords, questions of the panel?
     Senator Jeffords. Yes, I have.
    Judge Greene, while I was going through the briefing 
material yesterday, I noted a rather sharp increase in cases 
pending before the Court. When these cases reach you, are they 
certified by the Board of Veterans' Appeals in the same manner 
that the cases are required to be certified at local level 
boards before BVA consideration?
    Judge Greene. Well, when a notice of appeal comes to us, we 
require the VA to provide us with a copy of the Board decision. 
Then we have the Board decision that is the basis for the 
appeal. As I indicated in my opening statement, the VA is then 
required to designate the record for appeal. And that 
designation of the record falls in the hands of the General 
Counsel of VA, who must designate the documents that were in 
the claims file before the Board that would be used as a basis 
for the decision in that Board decision.
    Once the Secretary designates that record, it is then 
served on the appellant, who has an opportunity to counter-
designate the record and add other documents to the record to 
ensure that the court will have what will become, as you say, 
the certified record, or the record on appeal. And then once 
the appellant provides that information, the Secretary then 
files the record with the court, and that is the record from 
which we eventually make the decision.
     Senator Jeffords. Mr. Greene, I remember some discussion 
in the past few years about modernizing and updating the 
current ratings schedule for deciding veterans' claims. I have 
heard complaints about this anticipated antiquated system from 
VA raters and the service organizations. What is the status for 
an overhaul of the system?
    Judge Greene. That is in the area of VA, sir. In fact, the 
court has to be very careful about talking about the rating 
schedule, in terms of reviewing that.
     Senator Jeffords. All right. What is the status of the 
overhaul of the system to increase productivity of the court 
system?
    Judge Greene. The status is, as I have indicated, the 
judges have gained significant experience over the past year. 
There is not a day that goes by that the judges don't have a 
dialogue about how to be more productive, and that is the right 
attitude that needs to be in the appellate court system. We 
have a challenge, but at the same time, we have to be sure that 
whatever case we touch, we do so with the full understanding 
that it has to be done with deliberative due process and within 
the judicial rules of law and procedure that we are bound to 
follow.
    Thus, many cases often get bogged down simply because of 
technicalities or stays of proceedings and what have you. But 
the outlook in my estimation is that the status of the overhaul 
of the court, or the new court or the new beginning of the 
court, as I like to refer to it, is very positive. I am hoping 
that sometime in the future, I will be able to come back and 
tell you that we have certainly made a tremendous dent in those 
numbers that appear on your charts.
     Senator Jeffords. Many claims are repeatedly sent back to 
the Veterans' Claims Board from the Court of Appeals due to 
incorrect filing. As is apparent from the submitted testimony 
of both Judge Greene and the Disabled American Veterans, 
roughly half of the claimants who begin the claims process with 
no representation retain some form of representation by the end 
of the process. Professional attorneys are well prepared to 
handle the complexities of the claim process, thereby reducing 
mistakes and unnecessary complication. Would attorney 
representation chosen at the discretion of the claimant improve 
the efficiency of the system?
    Judge Greene. There is no doubt that certainly in our 
court, that is the case. We have made great strides in reducing 
the number of unrepresented veterans that come before the court 
and it does make a difference. It is very difficult to deal 
with a veteran's case who is not represented.
    The natural choice, if an individual is willing to 
represent a veteran and the veteran is willing to hire a 
lawyer, then the veteran should have that choice. I think it 
would make a difference at every adjudication level, 
especially, as one of my colleagues, Chief Judge Kramer, 
indicated to you in the hearing last year, if there was a 
revamping perhaps of the system where you had administrative 
law judges below or somewhere at the RO level, then that would 
provide the opportunity for lawyers to represent veterans and 
go before that hearing officer.
    But generally as Chief Judge of court, I would not comment 
on that legislation being enacted. It doesn't really impact on 
us because a veteran certainly has the right to hire a lawyer 
before coming to our court.
     Senator Jeffords. Thank you.
    Chairman Craig. Jim, thank you.
    Now let me turn to Senator Burr.
    Richard.
    Senator Burr. Thank you, Mr. Chairman.
    Judge Greene, welcome. Thank you for your service.
    Senator Jeffords asked a question that I need to follow up 
on because I had written the same thing. He asked you, of the 
retired judges, if recalled, would they come, and you said you 
presumed that they would. Now, in your written testimony, let 
me quote, ``I am consulting with five of the six retired judges 
concerning recall options and their availability within the 
next 6 months.'' I assume that you have been in conversation 
with them.
    Judge Greene. I have.
    Senator Burr. Given those conversations, how do I interpret 
the response ``presume'' ?
    Judge Greene. Presume? We have a regulation that governs 
the Chief Judge's exercise of the authority under 38 U.S.C. 
7257, which is the recall judge provision. The regulation, 
which was not written by me, was promulgated by the Board of 
Judges, requires that if I am planning to recall a number of 
judges, requires consultation concerning their availability 
before issuing the recall order. So it is just as I indicated 
before.
    Senator Burr. Well, can I assume or can the Committee 
assume that in the consultation, you have asked them, would 
they come if recalled?
    Judge Greene. Maybe I should not have said ``presume,'' 
because I have every reason to believe that they will.
    Senator Burr. Do you have any reason to believe that they 
won't?
    Judge Greene. Not until I send the letter----
    Senator Burr. Have you----
    Judge Greene [continuing]. Saying to report on X date.
    Senator Burr. Have you been able to distinguish from those 
five of the six that you have consulted with whether this 
exercise would be a voluntary or an involuntary recall?
    Judge Greene. Well, it is mandatory. Once I send the 
letter, it is mandatory.
    Senator Burr. You may be new in your capacity as Chief 
Judge. I think you have got a tremendous amount of experience 
and I think you probably had a conversation with them as to 
whether you would have to go the voluntary route or the 
involuntary route. I think there is a distinction between the 
two.
    Judge Greene. You mean the voluntary route----
    Senator Burr. There is a voluntary route that allows 120 
days----
    Judge Greene. A 180 days.
    Senator Burr [continuing]. Or 180 days, excuse me, and an 
involuntary route that obligates them to 90 days, am I correct?
    Judge Greene. Yes, sir.
    Senator Burr. Do you have an indication from those five 
that you consulted with what would be the appropriate option 
based upon----
    Judge Greene. I don't have a commitment to that. I have an 
indication that I said, if you are recalled, then the exercise 
of the 180 days will certainly arise.
    Senator Burr. When you use the term ``consulted with them 
about their availability,'' does their availability dictate as 
to whether we are going to recall? Walk me through that, if you 
will.
    Judge Greene. Well, I do have space problems. In other 
words, if I were to recall four judges, then I would have to 
have somewhere to put them, and that is why I indicated if I 
went beyond the spaces of my current confines, I would have to 
lease facilities somewhere else to bring them on board, or do 
like in the Navy with the submarines, a hot bed----
    Senator Burr. I realize the space limitations. I am just 
trying to figure out how the conversations with them about 
their availability are important to your decision as to whether 
the caseload merits a recall.
    Judge Greene. Once the caseload merits a recall, I need 
people, whether it is for 30 days, 60 days, or 90 days. If 
someone can come 30 days in September, you are on. If somebody 
can come 40 days beginning in October, you are on, and so on 
and so on and so on. That is to maintain my flexibility.
    Senator Burr. Sure. Let me ask you about caseload, and I 
apologize that I am not near as knowledgeable as the other 
Members of the Committee right now, but I will be by the time 
we follow up on this. As we have gone through a period of time 
where we have increased the number of clerks per judge, we have 
gone from two to now four clerks per judge, and I think the 
target of the Committee, the target of the court was that each 
clerk would process two claims per week and that is sort of the 
formula that we use to try to determine, do we have enough 
clerks. I would take for granted that that is in conjunction 
with do we have enough judges. Two separate issues, though.
    In fact, as we have doubled the number of clerks, we have 
actually fallen to one case per week that is completed by our 
clerks. I just did some quick math and if we had kept two 
clerks per judge and they maintained the two cases per week, 
they would have actually completed over 700 cases. When you 
look at that for 2005, of the 1,500 cases that came in more 
than were decided, we would have knocked that in half if we 
just had the same level of productivity.
    Put on top of that the fact that we have doubled the number 
of clerks. One would assume that if the productivity had stayed 
the same, that we would have actually closed more cases than 
came in.
    My question to you is, why were our assumptions wrong that 
we could maintain the two cases decided weekly and do we have a 
productivity problem with our clerks?
    Judge Greene. Umm----
    Senator Burr. Let me give you a third option. Are the cases 
that much more complex, that our expectations of two cases per 
week decisions is unacceptable?
    Judge Greene. Sure. Well, let me take that last option. As 
I indicated in my opening statement, over the 17 years, there 
has been developed an extensive expertise in the veterans' bar. 
Twenty-nine percent of the cases that close are represented, as 
opposed to at the beginning of the court, when there was 80 
percent pro se. Legal issues have become complex, certainly, 
and the two cases per week, that goal that I described was 
presumed--I won't use presumed--was on a basis of clerks doing 
single-judge decisions. Single-judge decisions are decisions 
that are considered to be relatively simple, are following 
precedent; not reasonably debatable.
    If a clerk has to work a panel case, then that becomes more 
complex because there, you are now dealing with preparing to 
discuss this case with two other judges, two other clerks, 
perhaps have oral argument, and, of course, the decision that 
is rendered from that case becomes a precedent that will be 
applied to other cases. The single-judge decisions are not 
precedential. So that is a variable in the two-per-week goal.
    It is not that we are--the current court--I am not sure you 
are comparing the current court with the premise of your----
    Senator Burr. I am simply using the projections that the 
court----
    Judge Greene. We went to----
    Senator Burr [continuing]. Historical work of the court.
    Judge Greene. When we went to three clerks and then to four 
clerks, well, more important, when we went to three clerks, we 
were down six to five judges, as well. So even given that, I 
guess you still could come up with a two decisions per week, 
but you have got five deciders now instead of seven deciders. 
So all those variables come in.
    Senator Burr. Yes, but to suggest that that had something 
to do with the clerks' productivity would suggest that if you 
were to recall two judges, clerk productivity would go up. 
Would that happen?
    Judge Greene. I would hope so, and I feel comfortable now. 
Now, we are at seven full-time judges for the first time in 6 
years deciding cases full-time, every day, with four clerks. 
This is the first year of that, and all I can say is that there 
is every expectation that we will continue an upward trend in 
producing two cases a week, given the variables. We have got, 
like 49, if I recall correctly, 49 cases that are pending or 
have been referred to panel, and those cases, again, are on the 
clerks' inventory and they take precedence and importance over 
the single judge decisions.
    Senator Burr. I thank you for making yourself available to 
us. I thank the Chairman for his willingness to hold the 
hearing.
    Mr. Chairman, I am anxious to see what Judge Greene is able 
to present to us as it relates to the mix of what our 
expectations for productivity should be, what our expectations 
for the need to recall and what that structure would look like 
because I think that has a very significant impact on what we 
should do as a Committee relative to allocation of funds. I 
pledge to you today and I pledge to Judge Greene that as the 
court needs those dollars to perform their work, I will do 
everything to make sure that they are there. By the same 
standard, I would expect the Chief Judge to make sure that the 
productivity level of all facets is, in fact, maintained and 
that this does not have a tendency that as it grows in size, as 
it grows in budgets, the expectation of this Committee and 
veterans is that we produce less product.
    Thank you, Mr. Chairman.
    Chairman Craig. Senator Burr, thank you. Let me add only 
this thought, and then we are going to have to run and vote. We 
will be right back, Judge, but it goes right to where Senator 
Burr is dealing with at this moment, and Richard, you may want 
to hear this.
    From fiscal year 1998 to fiscal year 2007, the budget will 
more than double, from $8.5 million to $18.5 million. 
Compensation and benefits will increase 112 percent. Employees 
will increase 23 percent. During that time, the number of law 
clerks, attorneys, increase from two per judge, as we 
discussed, to three per judge, then in 2003, four per judge. In 
addition, the Court authorized each judge to have at least one 
permanent law clerk at a higher level, a GS-14, to help deal 
with these more complex cases.
    So in looking at all aspects of your situation, Judge, I 
concur with what Senator Burr has said. I will have a couple of 
questions when I return and then we will let you get back to 
work.
    Judge Greene. Thank you.
    Chairman Craig. We don't want you sitting here answering 
questions in part when you can be back at the Court solving 
claims.
    We will recess for just a moment. I will run and vote and 
will be right back. The Committee will stand in recess.
    [Recess.]
    Chairman Craig. The Committee will reconvene, and again, 
Judge, thank you for your time. I have one last question and 
then we will get you all out of here so you can get back to 
work.
    Disabled American Veterans and the national organizations 
of veterans' advocates have suggested that information about 
the Court's internal operations is not sufficiently transparent 
to the public. Does the Court disseminate within the Court or 
to the public information about how many cases are pending and 
how long they have been pending?
    Judge Greene. I will refer to my Executive on that.
    Mr. Herring. Mr. Chairman, we have upon occasion and 
special request provided detailed information regarding 
everything that we do at the Court. As you may know, we are a 
Federal Court and are not subject to the Freedom of Information 
Act and we have consistently taken that position pursuant to 
the advice of General Counsel. So if there have been any times 
that we failed to do that, it is simply because of our desire 
to, I guess, uphold our judicial integrity under those 
traditions.
    But as you can see today, we have given pretty much full 
disclosure concerning the number of cases, where they are, how 
long they have been pending, where they are in the decisional 
process. I am a little concerned about every time someone asks 
for information, that I have to stop my staff from doing what 
they are doing and ask them to do a research project. But I 
think we are pretty transparent. If there is a special request, 
we try to honor it.
    Chairman Craig. Beyond the special request, then what you 
are telling me is that as a matter of routine on an annual 
basis, you don't do a status report that becomes public?
    Mr. Herring. Well, the annual report that is found on our 
Web site details a significant amount of information concerning 
the number of cases that have come in, the cases that have been 
cited, how many of them are merits decisions, how many have 
been remanded, whether they have been decided based upon 
jurisdictional issues, or failure to follow the rules. We try 
to keep that to a one-page report because of the complexity and 
the relationship of that data to the data that existed 10 years 
ago. You have relied upon data that is 10 years old and we 
don't want to have to say we are changing the rules midstream 
on how we count cases and how we decide cases. We are trying to 
be consistent historically, as well. So we are providing the 
information that we have historically provided both to the 
public and to individuals.
    Chairman Craig. Sure.
    Mr. Herring. And upon, like I say, upon special request 
from Representatives here on the Hill, we do a significant 
amount of research. We had a special request for how many cases 
were pending on September 30, 2005, which required one of my IT 
professionals to spend 4 or 5 hours to research that because 
our case tracking system is one that is intended to track the 
cases currently, today's numbers, as opposed to 6 months ago or 
12 months ago.
    Chairman Craig. We have just been joined by Senator Thune. 
At this time, do you have any comment or questions you might 
like to ask, John?

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Mr. Chairman, I know you are trying to move 
things along here and I have got an Armed Services Committee 
hearing today, so I need to get back there. I do want to thank 
you for taking this issue on. This is a very difficult and 
concerning issue, and getting our arms around it and coming up 
with solutions to how best to address this backlog, this 
buildup in the system, is something that I think we all are 
very concerned about. Clearly, we want to be able to deliver 
the very best quality service to our veteran community in a 
timely way and that is being severely compromised. I welcome 
the testimony from our panelists and hope that there will be 
some useful and meaningful suggestions about how we can deal 
with this issue.
    So I thank you for holding the hearing and I appreciate the 
chance to be here.
    Chairman Craig. Judge, let me thank you and Norm Herring 
for your openness and your cooperativeness in this. I hope you 
view this as a constructive effort. It is intended to be.
    Judge Greene. Absolutely.
    Chairman Craig. As I was on the floor to vote, I had 
several Senators who were Members of this Committee opine that 
they were occupied today, as is John, in other hearings of 
value and they wished they could be here. I say that because 
that doesn't always happen as we probe through different 
issues.
    We are very intent and concerned. We believe by the numbers 
you have a significant problem. We want to be constructive in 
helping you solve that and stabilize these numbers in a way 
that produces decisions in a timely fashion for our deserving 
veterans. Your openness, your allowing us access to 
information, in fact, your presence here this morning before 
the non-Judiciary committee, if you will, but before the 
Committee on Veterans' Affairs, I think demonstrates that and 
we appreciate it. We are intent, as you are. We will work with 
you and follow you closely through this to be helpful where we 
can be and assist you in resolving this issue. Thank you.
    Judge Greene. Mr. Chairman, thank you very much for this 
opportunity. I would just like you to know that I stand ready 
to continue this dialogue with you or any other Member of the 
Committee so that we can mutually ride together this road to 
blazing a trail for veterans' justice.
    Chairman Craig. Those of the court who also attended, thank 
you for your presence here today. Judge Nebeker, nice to see 
you again. Thank you.
    Now, we will ask our second panel to come forward. Our 
second panel is made up of the Honorable James P. Terry, 
Chairman of the Board of Veterans' Appeals, Department of 
Veterans Affairs. He is accompanied by Randall Campbell, 
Assistant General Counsel, Professional Staff Group VII, 
Department of Veterans Affairs. We also have Joe--it is that 
good Irish name that always gets me--Joe Violante, National 
Legislative Director, Disabled American Veterans.
    Mr. Terry, thank you for joining us. Please proceed.

     STATEMENT OF HON. JAMES P. TERRY, CHAIRMAN, BOARD OF 
       VETERANS' APPEALS, DEPARTMENT OF VETERANS AFFAIRS

    Mr. Terry. Thank you, sir. Good morning, Mr. Chairman, 
Senator Thune, members of the staff.
    The Veterans' Court caseload, as you have heard earlier 
this morning in the first panel, has certainly increased 
continually since the court opened in 1989. It has many causes. 
First, we at the Board are doing our utmost to increase the 
number of final decisions we produce. The Veterans' Court 
potential workload is directly dependent, as you are all aware, 
on the number of final decisions on the merits issued by the 
Board in which a benefit sought remains denied, or if allowed 
was not granted to the fullest extent that the claimant is 
seeking.
    We testified before the Committee in May 2005, that two of 
the Board's most important imperatives are: one, to contain and 
reduce the backlog while maintaining high quality; and two, to 
improve our timeliness by eliminating avoidable remands in 
order to issue more final decisions. The Deputy Secretary of 
the Department has made the reduction of remands certainly a 
major priority.
    But our success in increasing final decisions has had the 
ancillary effect of increasing the universe of cases that may 
be appealed to the court. To illustrate, in fiscal year 2003, 
the Board issued 31,397 decisions with a remand rate of 42 
percent. In fiscal year 2004, while the number of decisions 
increased to 38,000, the remand rate soared to 56 percent, so 
there was a fewer number of final decisions.
    In fiscal year 2005, during which we began working 
concertedly with the Veterans Benefit Administration to avoid 
remands to the extent possible, we issued 34,175 decisions with 
a 36 percent remand rate, thus increasing again the number of 
final decisions. So far in fiscal year 2006, through the end of 
May, we have issued 24,133 decisions with a remand rate of 34 
percent, again, a reduction from last year. Therefore, we 
expect of the 38,000 decisions we expect to issue before the 
end of this year that we will have a low remand rate, and 
again, an increase in final decisions that will be subject to 
appeal to the court.
    The result is, of course, that there has been a significant 
increase in the number of BVA decisions that may be appealed, 
and certainly in looking at the numbers, while the Board issued 
4,196 fewer decisions in 2005 than it did in 2004, the actual 
number of decisions to which all benefits sought were denied 
increased from 9,300 to 13,032, as mentioned by Judge Greene.
    It is important to note, though, during this same period of 
time, while the number of decisions that we issued increased in 
terms of denials, it also increased significantly in terms of 
those where benefits were granted.
    The trend is likely to continue. As I am sure the Committee 
is well aware, the Board is continuing to receive more cases 
each year. We received 39,000 cases in 2004, 41,000-plus in 
2005, and this year we are expecting 43,000 and more so in 
2007.
    But other factors also must be considered, Mr. Chairman. In 
addition to the heightened awareness among veterans and the 
increased number of cases subject to appeal, the higher courts 
have determined that the Veterans' Court possesses now 
authority to consider petitions for extraordinary relief under 
the All Writs Act, and this has led to a significant amount of 
work at the Veterans' Court.
    Additionally, the Federal circuit has played a significant 
role in increasing the number of appeals at the Veterans' Court 
by applying the Equitable Tolling Doctrine to otherwise 
untimely appeals, therefore allowing those that otherwise might 
be denied to be considered.
    On perhaps a smaller scale, cases like Bates v. Nicholson, 
dealing with an attorney's right to practice, have expanded the 
jurisdiction of the Board and, hence, have expanded the 
jurisdiction of the court.
    Statutory changes, as well, have played an important role. 
For example, the Equal Access to Justice Act was amended in 
1992 to authorize the Veterans' Court to award fees and 
expenses to veterans' attorneys. Thereafter, the caseload at 
the Veterans' Court jumped exponentially. Over 20 percent of 
the Veterans' Court docket in fiscal year 2005 was comprised of 
such fee applications, and that percentage is holding true this 
year, as well.
    Another instance was the elimination of the date of filing 
of the notice of agreement limitation of the court's 
jurisdiction, which had originally been enacted in the 
Veterans' Judicial Review Act to help control the workload of 
the Veterans' Court.
    The statutory amendment that adopted the postmark rule for 
calculating timeliness has likewise had an impact on the 
Veterans' Court docket by expanding the cases that can be 
considered.
    Enactment of the Veterans' Claims Assistance Act, the VCAA, 
has also had an enormous impact on the work of the Veterans' 
Court. This is due in part to extensive litigation regarding 
the scope and meaning of that legislation, as well as the 
reluctance of the Veterans' Court, in our view, ``to take due 
account of the rule of prejudicial error'' in making its 
determinations, an opportunity it certainly has the right to 
avail itself of. If the court were able to employ this rule to 
its fullest, it would be able to reduce its workload by 
rendering more final decisions rather than remands in 
appropriate cases.
    In addition, occasional spikes in the number of new cases 
over the years can be attributed to organized efforts to 
present particular legal issues to the courts, such as, for 
example, the recent spate of bilateral tinnitus cases that are 
just now being resolved. There have been hundreds of such cases 
filed in the Veterans' Court. Such temporary spikes are 
difficult to predict and can be difficult to manage for 
anybody.
    Further, cases have simply grown more complex, sir, with 
more numerous issues, larger records, and certainly more issues 
to consider. It is not uncommon to have files of several 
thousand pages and certainly multiple issues, some cases more 
than 10, certainly.
    Changes in laws, such as the statutory enactment of the 
VCAA or issuance of a new precedent also impact the court 
because there might be dozens or even hundreds of cases that 
must be rebriefed to the court, thereby delaying the ultimate 
decision in those cases. That is very much a reality this year.
    The number of cases scheduled for oral argument has also 
doubled over recent years and that trend is predicted to 
continue.
    With respect to potential remedies, and I think here is 
where we need to look very carefully, it is notable that the 
court is evaluating new means for alleviating or managing the 
press of business, and I think Judge Greene touched on some of 
these. For example, it has adopted new procedures to reduce the 
amount of time expended by the parties' motions for 
continuances. It has reinforced its rules governing submission 
of pleadings.
    The Veterans' Court is also currently considering a 
fundamental change to the procedures for preparing the record 
on appeal. Therefore, if, in fact, it were to make this change, 
only the matters cited in the pleadings to be submitted would 
be required as opposed to the DOR, the designation of the 
record, today, which includes a listing of all documents within 
the file.
    The Veterans' Court is also studying the feasibility of 
electronic filing. This, of course, would require a rule change 
in the court's rules, but we think that would be a very, very 
effective new mechanism.
    The Veterans' Court could take better advantage of tools 
already available to it, in our view. For example, the 
Veterans' Court could adopt procedures that welcome rather than 
deter summary motions for dismissal in appropriate cases. The 
plan to revamp the preparation of the record on appeal, which 
is currently under study, would certainly facilitate the filing 
of summary motions.
    As I noted previously, the court could be expansive in 
taking account of the rule of prejudicial error in reviewing 
the Board's determinations, avoiding remands where justice will 
permit. We believe this is a very, very important consideration 
and we believe that the court could do much in this area.
    The Veterans' Court could also be more open to the idea of 
consolidating cases or granting motions to stay cases when 
there is a commonality of issues. In the instance of the 
recently decided tinnitus rating cases, for example, the 
Veterans' Court did not consolidate the majority of the cases 
on its docket, nor did it grant the Secretary's motions to stay 
proceedings pending resolution of the lead cases. These changes 
would certainly affect cases which have already been filed. 
However, we must note, and it is a reality, the sheer number of 
potentially appealable decisions from the Board is staggering 
and certainly this has to be taken into account, as well.
    Mr. Chairman, the problem of backlogs will be a theme that 
continues into the future, and unless steps are taken to 
meaningfully reduce the actual number of appeals or to employ 
an expeditious means to dispose of them, we will continue to 
have the problem that we face today.
    Mr. Chairman, Mr. Campbell and I would be pleased to answer 
any questions you or any other Member of the Committee might 
have.
    [The prepared statement of Mr. Terry follows.]

Prepared Statement of Hon. James P. Terry, Chairman, Board of Veterans' 
                Appeals, Department of Veterans Affairs

    Good morning, Mr. Chairman. I am happy to discuss with you, Ranking 
Member Akaka, the members of the Committee, and your staff, what we 
believe are the reasons for the increase in the number of appeals to 
the United States Court of Appeals for Veterans Claims (Court or 
Veterans Court), whether we can expect that trend to continue, and what 
measures may be taken to assist the Veterans Court in handling this 
increased workload.
    With me today before you is R. Randall Campbell, Assistant General 
Counsel, Professional Staff Group VII of the Office of the General 
Counsel (Group VII), also known as the Veterans Court Appellate 
Litigation Group. That Group is charged with representing the Secretary 
of Veterans Affairs before the Court.
    While appeals from the final decisions of the Board provide the 
primary source of the Veterans Court's workload, its workload includes 
a variety of other matters, including petitions for a writ of mandamus, 
and applications for fees and expenses under the Equal Access to 
Justice Act. Group VII is responsible for handling the administrative 
and legal matters involved in all litigation before the Veterans Court. 
This is a complex operation, akin to a large law firm employing a staff 
of nearly 100 consisting of attorneys and a large complement of 
administrative professionals who run the docket room, computerized 
case-tracking system, and copy center, among other things. In order to 
comply with the Veterans Court's Rules of Practice and Procedure, Group 
VII prepares, serves and files copies of the record on appeal in cases 
before the Veterans Court, producing an average of more than one 
million photocopies per month. Group VII has experienced first hand the 
effects on its own resources of the increasing caseload before the 
Veterans Court.
    It is clear that the Veterans Court's caseload has increased 
continually since it opened its doors for business in 1989. Ten years 
ago, in Fiscal Year (FY) 1996, for example, the Veterans Court received 
1,836 new cases. By contrast, in fiscal year 2005, the Veterans Court 
received 4,364 new cases. So far this fiscal year, the Veterans Court 
is averaging in excess of 393 new cases per month. The number of cases 
pending decision at the beginning of June 2006 was 4,311. I fully 
expect the caseload to increase for a number of reasons.
    First, we at the Board are doing our utmost to increase the number 
of final decisions we produce. As you know, the mission of the Board of 
Veterans' Appeals (BVA or Board) is to conduct hearings and render high 
quality, timely and final decisions in appeals of claims for veterans 
benefits. The vast majority of appeals involve claims for disability 
compensation benefits, such as claims for service connection, an 
increased rating, or survivor's benefits, which were denied at the VA 
Regional Office level.
    In order for the Board to reach a fair and just decision in an 
appeal, the record must contain all evidence necessary to decide the 
appeal and reflect that all necessary due process has been provided. If 
the record does not meet these requirements, and the benefits sought 
cannot be granted, a remand for further development is necessary. Since 
a remand is a preliminary order and not a final decision on the merits, 
it generally may not be appealed to the Veterans Court. About three 
quarters of all remands are eventually returned to the Board for 
further consideration.
    It is those decisions in which the Board denies the appeal, in 
whole or in part, that the claimant may challenge by filing a Notice of 
Appeal with the Court.
    Hence, the Veterans Court's potential workload is directly 
dependent on the number of final decisions on the merits issued by the 
Board in which a benefit sought remains denied or, if allowed, was not 
granted to the fullest extent that the claimant is seeking.
    As the Board's then Acting Chairman, now Vice Chairman, Ron Garvin, 
testified before this Committee on May 26, 2005, two of the Board's 
most important initiatives are (1) to contain and reduce the backlog of 
appeals by increasing decision productivity, while maintaining high 
quality, and (2) to improve timeliness and service to veterans by 
eliminating avoidable remands in order to issue more final decisions. 
In regard to the latter initiative, in July 2004, Deputy Secretary 
Gordon Mansfield specifically directed both the Under Secretary for 
Benefits and Board's Chairman to do all within our power to eliminate 
avoidable remands. This effort required close cooperation between our 
organizations and the Deputy Secretary's office to develop and 
implement a comprehensive plan to respond to this directive.
    I am happy to report that we have had much success in working 
toward both these goals. While this is good news for the veterans we 
serve, who benefit from improved service, it has had the ancillary 
effect of increasing the universe of cases that may be appealed to the 
Court.
    To illustrate, in fiscal year 2003, the Board issued 31,397 
decisions, with a remand rate of 42.6 percent. In fiscal year 2004, 
while the number of decisions issued increased to 38,371, the remand 
rate soared to 56.8 percent. In fiscal year 2005, during which we began 
working concertedly together with the Veterans Benefits Administration 
to avoid remands to the extent possible, we issued 34,175 decisions of 
which 38.6 percent were remanded in whole or part. So far in fiscal 
year 2006, through the end of May, we have issued 24,133 decisions, 
with a remand rate of 34 percent, again a reduction in the remand rate 
from last year. We expect to issue about 38,000 decisions by the end of 
this Fiscal Year, while maintaining as low a remand rate as 
practicable.
    The result is that, over the last few years, there has been a 
significant increase in the number of BVA decisions that may be 
appealed to the Court. For example, although the Board issued 4,196 
fewer decisions in fiscal year 2005 than in fiscal year 2004, the 
actual number of decisions in which all benefits sought were denied 
increased from 9,300 in fiscal year 2004 to 13,032 in fiscal year 2005. 
While the number of cases in which a grant of benefits was awarded by 
the Board also increased during this time, from 6,560 in fiscal year 
2004 to 7,096 in fiscal year 2005, some of these decisions involve a 
grant of less than all the benefits sought and therefore may be 
appealed to the Court on those issues.
    This trend is likely to continue, especially since the Board's 
workload continues to grow. The Board received 39,956 cases in fiscal 
year 2004, 41,816 cases in fiscal year 2005, and expects to receive 
43,000 cases in both fiscal year 2006 and fiscal year 2007.
    Other factors that may affect the increase in appeals to the 
Veterans Court are not so readily quantifiable. There is a heightened 
awareness among veterans of their access to the judicial process. It 
appears that veterans have become increasingly knowledgeable about 
their right to appeal to the Veterans Court and are increasingly 
willing to avail themselves of that right.
    In addition, there have been changes in the jurisprudence that have 
influenced the caseload. The courts have determined that the Veterans 
Court now possesses authority to consider petitions for extraordinary 
relief under the All Writs Act, which has led to a significant amount 
of work at the Veterans Court. Additionally, the Federal Circuit has 
played a significant role in increasing the number of appeals at the 
Veterans Court by applying the ``equitable tolling doctrine'' to 
untimely appeals. On perhaps a smaller scale, cases like Bates v. 
Nicholson, 398 F.3d 1355 (Fed. Cir. 2005) or Meakin v. West, 11 
Vet.App. 183 (1998), have expanded the jurisdiction of the Board of 
Veterans' Appeals and, hence, created the potential for additional 
cases to be appealed to the Veterans Court.
    Statutory changes, too, have played an important role. For example, 
the Equal Access to Justice Act was amended in 1992, in order to 
authorize the Veterans Court to award fees and expenses to veterans' 
attorneys. Thereafter, the caseload at the Veterans Court jumped 
monumentally. Over 20 percent of the Veterans Court's docket in fiscal 
year 2005 was comprised of such fee applications, and that percentage 
is holding true this year, as well. Another instance was the 
elimination of the date of filing of the ``notice of disagreement'' 
limitation of the Court's jurisdiction, which had been originally 
enacted in the Veterans' Judicial Review Act to help control the 
workload of the Veterans Court. The statutory amendment that adopted 
the ``postmark rule'' for calculating timeliness of appeals has also 
had an impact on the Veterans Court's docket.
    Enactment of the Veterans Claims Assistance Act (VCAA) has had an 
enormous impact on the work of the Veterans Court. It is no secret that 
VCAA remands have been ping-ponging between the Veterans Court and the 
Department of Veterans Affairs for nearly 6 years. This is due, in 
part, to extensive litigation regarding the scope and meaning of the 
legislation, as well as the reluctance by the Veterans Court to ``take 
due account of the rule of prejudicial error'' in making its 
determinations. 38 U.S.C. Sec. 7261(b)(2). I recognize that this has 
been a rather contentious issue and one that is currently the subject 
of ongoing litigation. I can offer only that, if the Court were able to 
employ this rule to its fullest, it may be able to reduce its workload 
by rendering more final decisions, rather than remands, in appropriate 
cases. Ultimately, this would better serve our Nation's veterans.
    It also should be noted that there have been occasional spikes in 
the number of new cases over the years that can be attributed to 
organized efforts to present particular legal issues to the courts. For 
example, over the last few years the docket of the Veterans Court and 
the docket of the Federal Circuit have been crowded with cases 
involving the question of dual ratings for so-called ``bilateral'' 
tinnitus. There have been hundreds of such cases filed in the Veterans 
Court. Such temporary spikes are difficult to predict and can be 
difficult to manage.
    Finally, all of us involved in the adjudication system agree that 
cases have grown more complex, with more numerous issues and much 
larger records to review and consider. Even a case with just a few 
simple issues takes more time to process, when, as is increasingly 
common, the record on appeal may constitute thousands and thousands of 
pages. When there are changes in law, such as a statutory enactment 
like the VCAA or issuance of a new precedent by a court, there might be 
dozens or even hundreds of cases that must be re-briefed, thereby 
delaying the ultimate decision in those cases. Because of the change in 
law, many of the cases will be remanded to VA by the Veterans Court and 
then be returned to the Court on appeal, increasing its workload. If a 
case is scheduled for oral argument, preparing for oral argument delays 
processing of other cases while the subject case receives priority 
treatment. The number of cases scheduled for oral argument has doubled 
over recent years, and that trend is predicted to continue. All of 
these factors can contribute to a backlog on the Veterans Court.
    No doubt the Veterans Court is cognizant that its decisions, even 
in routine cases, are very important to those veterans who have been 
waiting for their ``day in court.'' Moreover, precedents issued by the 
Veterans Court can have a profound and wide-ranging impact on the 
Department's adjudication system. These factors call for careful 
deliberation and consistency, which, in turn, affects the amount of 
time spent on each case.
    With respect to potential remedies, it is notable that the Veterans 
Court is evaluating new means for alleviating or managing the press of 
business. For example, several years ago it adopted new procedures to 
reduce the amount of time expended by the parties' motions for 
continuances. It also reinforced its rules governing submission of 
pleadings, in order to deal with a rise in the filing of facially 
unsubstantiated writ petitions. We understand that the Veterans Court 
is currently considering a fundamental change to the procedures for 
preparing the record on appeal, which will speed the submission of 
cases to the judges for decision, and that the Veterans Court is also 
studying the feasibility of electronic filing.
    The Veterans Court could take better advantage of tools already 
available to it. For example, the Veterans Court could adopt procedures 
that welcome, rather than deter, summary motions in appropriate cases. 
We are hopeful that the plan to revamp the preparation of the record on 
appeal, which is currently under study, will facilitate the filing of 
summary motions. As noted above, the Court could be expansive in taking 
account of the rule of prejudicial error in reviewing the Board's 
determinations, avoiding remands where justice will permit.
    The Veterans Court could also be more open to the idea of 
consolidating cases or granting motions to stay cases, when there is a 
commonality of issues. In the instance of the tinnitus rating cases, 
for example, the Veterans Court did not consolidate the majority of the 
cases on its docket, nor did it grant the Secretary's motions to stay 
proceedings pending resolution of certain lead cases. Because the cases 
were permitted to proceed individually, there was an unnecessary 
expenditure of resources in the individual tinnitus cases and an 
avoidable diversion of time and resources from other cases on the 
docket of the Veterans Court.
    These changes would affect cases that have already been filed. As 
noted earlier, however, the sheer number of potentially appealable 
decisions from the Board of Veterans' Appeals is staggering. The 
problem of backlogs will be a theme that continues into the future, 
unless steps are taken to meaningfully reduce the actual number of 
appeals or to employ an expeditious means to dispose of them.
    Mr. Campbell and I would be pleased to answer any questions you or 
your colleagues might have.
                                 ______
                                 
   Responses to Written Questions Submitted by Hon. Daniel K. Akaka 
                           to James P. Terry

    Question 1. Mr. Terry, I appreciate your views on the court's 
workload. However, I believe it is more appropriate to focus VA's input 
on how the department, including BVA, can better handle claims to 
reduce the number of decisions appealed to the Court. For those cases 
which are appealed to the Court, VA's goal should be to ensure that the 
cases which go forward are fully ready for the Court's review, with no 
need to remand the cases for further development. What can the Board do 
to reduce the number of cases remanded from the Court?
    Answer. Any claimant adversely affected by a final decision of the 
Board of Veterans' Appeals (BVA or Board) has the right to obtain 
judicial review of that decision by filing a timely Notice of Appeal 
(NOA) with the United States Court of Appeals for Veterans Claims (CAVC 
or Court). 38 U.S.C. Sec. Sec. 7266(a), 7252(a). It is the claimant's 
decision alone to exercise his or her statutory right to appeal and, 
therefore, the Department nor the board has the authority to ``reduce 
the number of decisions appealed to the Court.''
    We can, however, ``better handle claims'' by improving our efforts 
to explain the rationale for our decisions. A better understanding of 
the underlying reasons for the Board's decision may persuade some 
claimants that the decision is correct and should not be appealed. In 
addition, by providing a clearer, more comprehensible explanation of 
the bases for our decisions, we also will address one of the leading 
causes of remands from the Court. Our data show that from the period of 
December 2000, when we began our current Court remand tracking system, 
to the end of June 2006, the leading cause of remands (28.4 percent of 
all issues remanded from the Court) was based on a determination that 
the Board did not provide an adequate discussion of the rationale for 
its decision on a material issue of law or fact. To address these 
concerns, we are working with our Veterans Law Judges (VLJs) and staff 
counsel to ensure that BVA decisions are clear, concise, coherent and 
correct. We have recently completed several training initiatives to 
this end.
    The Board's mission is to issue decisions that are just, fair, and 
legally correct, as well as timely. This applies to all decisions, not 
just those that may be appealed to the Court. To this end, we have in 
place a comprehensive Quality Review (QR) program, which has recently 
undergone favorable scrutiny by the Government Accountability Office 
(GAO). A ``deficiency free'' decision is one in which all issues are 
correctly identified and resolved with appropriate findings of fact, 
conclusions of law, and order; that ensures that all due process has 
been provided, including appropriate notice and assistance to develop 
the claim; and that contains an adequate explanation of the reasons and 
bases for all material issues of fact and law. We have a robust 
training program in place to address those particular areas in our 
decisions in which QR has identified problems. Our quality goal for 
Fiscal Year (FY) 2006 is a deficiency free decision rate of 92 percent. 
As of the end of June fiscal year 2006, our deficiency free decision 
rate stood at 92.4 percent, slightly above our target goal.
    Many of the cases that are remanded to the Board by the Court have 
nothing to do with the correctness of our decisions at the time we made 
them. Under the Court's jurisprudence, a change in law generally is 
effective immediately and applicable to all pending cases. Thus, where 
the law changes while a case is pending on appeal, the case generally 
must be remanded for readjudication under the new law, regardless of 
whether the Board's application of the law was correct at the time the 
decision was issued. Our data show that from the period of December 
2000 to the end of June 2006, of all the individual issues that were 
remanded to us by the Court, 10.8 percent resulted from a change in 
case law and another 22.8 percent were remanded for the application of 
new legislation or regulation.
    Question 2. Please provide more detail on the Board's workload 
increase. For the most current fiscal year for which you are able to 
provide such information, give us a breakdown on the type of claim, 
including how many are original, how many are seeking an increase in 
benefits, along with information on the specifics of the claim in terms 
of the disease or disability claimed. Also please show a breakdown on 
the period of service of the claimant or, if the claim is from a 
survivor, the period of service of the veteran.
    Answer. In response to your question, we have provided relevant 
information in Attachment A. This data has been extracted from VA's 
appeals data base, the Veterans Appeals Control and Locator System 
(VACOLS). We have included charts providing a breakdown of the Board's 
decisional output for fiscal year 2005 and for fiscal year 2006 through 
the end of June by type of action, by disposition by program area, and 
by period of service of the veteran claiming benefits or through whose 
service derivative benefits are claimed. In addition, for increased 
rating cases, we have provided a breakdown for both time periods by 
individual issues correlated with the applicable diagnostic codes.
    Question 3. You mention that ``precedents issued by the Veteran's 
Court can have a profound and wide-ranging impact on the department's 
adjudication system.'' This is certainly how it should be but I am 
concerned that the impact of a precedent decision is not always fully 
understood or implemented with VA. Please describe how a precedent 
decision from the Court is analyzed within VA and, once the analysis is 
completed, how the meaning of the decision is provided to adjudicators 
from the regional offices and the Board.
    The Board's Appellate Group carefully reviews all decisions of the 
CAVC and the U.S. Court of Appeals for the Federal Circuit, both 
precedential and nonprecedential. As soon as possible following their 
issuance, they circulate all precedential court decisions by electronic 
mail to our Veterans Law Judges (VLJs) and staff counsel, together with 
a summary and short analysis of the case. A similar process is employed 
for the dissemination of new legislation, regulations, and precedent 
opinions of VA's General Counsel. Selected nonprecedential court 
decisions of interest are also periodically circulated, with briefer 
accompanying materials. In addition, all our VLJs and counsel may 
independently access judicial decisions that are posted on the courts' 
Web sites or are reported in Westlaw.
    Representatives of the Board meet at least monthly and as often as 
is necessary with their counterparts in the Office of the General 
Counsel, the Veterans Benefits Administration, and the Veterans Health 
Administration to discuss the impact of significant decisions of our 
reviewing courts. Guidance on important decisions may be generated 
jointly, by each organization individually or be disseminated centrally 
by the Office of the General Counsel. Training is conducted on 
important precedent decisions, as well as other pertinent areas of law 
and medicine, either jointly or by each VA component. In addition, the 
Board provides training by videoconference with participating VA 
Regional Offices (ROs), and offers training by our VLJs and counsel on 
Travel Board visits to the ROs.
    The Board's VLJs and counsel are all attorneys and have 
considerable expertise in the area of veterans law. It is an essential 
responsibility of their job to interpret and apply the decisions of the 
Court to the cases before them. In order to ensure consistency and 
encourage a free exchange of ideas on the interpretation of judicial 
precedent, the Board conducts periodic ``Grand Rounds'' training 
sessions for all our VLJs and counsel covering significant changes in 
the law, as well as a wide range of ongoing training for our judges and 
counsel in the various specialized areas of law and medicine within the 
Board's jurisdiction.
    It must be emphasized that the law is an ever-evolving process. 
Courts generally decide only the specific issue before them and, 
therefore, controlling precedent is often revealed in a piecemeal 
fashion. Further, judicial decisions are not always paradigms of 
clarity. For example, while the Veterans Claims Assistance Act (VCAA) 
was enacted in November 2000, over the ensuing years the meaning and 
application of its notice provisions alone have been the subject of 
numerous and, at times, contradictory decisions of the courts and 
remain a subject of active litigation. As the law changes with each new 
precedential decision, actions taken by VA that appeared to be in 
compliance with existing law may be deemed to be deficient in 
retrospect. The point is that it is not always possible to immediately 
grasp the full implications of a decision of the court and that, even 
if they are correctly understood, subsequent precedent may change that 
understanding. I can assure you, Senator Akaka, that we at the Board do 
everything possible to ensure that our VLJs and counsel understand and 
comply with the law, including all precedential court decisions.
    Question 4. Mr. Terry, how low can BVA's rate of cases remanded to 
the Regional Offices realistically go? Of the current number of cases 
remanded by the Board to the RO's, what percentage are as a result of 
the regional offices not doing a complete job when they first had the 
cases?
    Answer. In July 2004, the Under Secretary for Benefits and I were 
charged by the Deputy Secretary, to the extent possible, to eliminate 
those remands by BVA to the ROs that can be avoided. Part of the Deputy 
Secretary's charge was to mutually develop a mechanism for tracking the 
reasons why a case is remanded. Obviously, we need to understand where 
the problems are in order to remedy them.
    As a result, starting in November 2004, we implemented a new system 
for tracking the reasons why each issue on appeal was remanded. There 
may be multiple reasons for remand for each case. Our tracking system 
divides those reasons into those that arose before certification and 
transfer of the record to the Board--that is, while the case was under 
the control of the RO--from those reasons arising after certification 
and transfer of the record to the Board, when the Board has 
jurisdiction of the case. Our data show that for fiscal year 2005, 60.3 
percent of the issues remanded were for pre-certification reasons and 
that 39.7 percent were for post-certification reasons. So far in fiscal 
year 2006, pre-certification reasons constitute 52.8 percent of the 
total and 47.2 percent were for post-certification reasons.
    While there clearly is room for improvement throughout the system, 
cases must often be remanded because of the requirements of current law 
and events that are beyond either the RO's or the Board's control. As I 
discussed in my responses to your first and third questions above, a 
change in law that occurs while the case is on appeal to the Board or 
to the Court will generally require a remand for readjudication if a 
due process or substantive right is involved. A remand also may be 
required for a variety of other reasons while the case is at the Board, 
such as the submission of new evidence, a revelation that there are 
pertinent Federal records of which we were previously unaware, an 
alleged change in the severity of a disability for which increased 
compensation is sought, additional information concerning alleged 
stressors in a service connection case for PTSD, a request for a 
hearing, just to name a few. In these instances, a remand is necessary 
so that our Nation's veterans and their families receive all the due 
process to which they are entitled. In view of these factors and with 
the understanding that we will never achieve perfection, I would 
estimate that we eventually may bring the remand rate down to between 
27 and 30 percent.
    Question 5. With respect to the claims involving ``bilateral'' 
tinnitus discussed in your testimony, could the Board have either 
consolidated those cases or decided a lead case and held the others 
pending a decision by the court?
    Answer. The Board could not have taken either of these actions. As 
noted above, in response to your first question, the Board has no 
control over which of its decisions will be appealed to the Court. By 
statute, the Secretary cannot appeal a Board decision to the Court. See 
38 U.S.C. Sec. Sec. 7252(a), 7266(a). Hence, it is impossible for the 
Board to designate a lead case for judicial review.
    Nor does the Board have the authority to consolidate cases. By 
statute, the Board must consider and dispose of the cases before it in 
the order in which they appear on its docket. The exceptions to this 
are limited to cases that may be advanced on the docket because of good 
cause, such as serious illness, financial hardship or advanced age, or 
remands returned to us, which require expeditious treatment. See 38 
U.S.C. Sec. Sec. 5109B, 7107(a), 7112.
    However, the Secretary has maintained that the Department has the 
authority to stay final action on cases that may be affected by the 
outcome of a decision on appeal to the courts. This was the action that 
was taken during the pendency of the Department's successful appeal to 
the Federal Circuit of the CAVC's decision in the ``bilateral'' 
tinnitus case. Smith v. Nicholson, 19 Vet.App. 63 (2005), rev'd, No. 
05-7168, 2006 U.S. App. LEXIS 14919 (Fed. Cir. June 19, 2006). A stay 
has an effect similar to that of consolidation, in that it preserves 
the status of pending appeals until their common controlling legal 
issue is resolved. However, the Secretary's authority to impose such a 
stay has been challenged by several petitions for writs of mandamus. 
See Caudill et al. v. Nicholson (No. 06-1541) (U.S. Vet. App, June 23, 
2006). Litigation on this matter is continuing.
    Question 6. In fiscal year 2005, how many cases were decided by the 
Board where all benefits sought were denied? Where some benefits were 
denied and others granted? Are mixed decisions counted (for purposes of 
compiling statistics) as denials or grants?
    Answer. For reporting purposes, the Board's long-standing practice 
is to record as a ``denial'' a decision in which all the benefits 
sought on appeal are not granted. In the case of decisions with mixed 
dispositions, we record a decision in which at least one issue was 
remanded, but none granted, as a ``remand.'' A decision in which at 
least one of the benefits sought is granted, in whole or in part, is 
recorded as an ``allowance,'' regardless of the disposition of any 
other issue.

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    Chairman Craig. Thank you very much for that testimony.
    Now let me turn to Joe Violante, National Legislative 
Director, Disabled American Veterans. Joe, again, welcome 
before the Committee.

STATEMENT OF JOSEPH A. VIOLANTE, NATIONAL LEGISLATIVE DIRECTOR, 
                   DISABLED AMERICAN VETERANS

    Mr. Violante. Thank you, Mr. Chairman and Members of the 
Committee. Disabled American Veterans shares your interest in 
ensuring veterans have effective and efficient claims and 
appeals processes. We thank you for conducting this timely 
hearing on the U.S. Court of Appeals for Veterans Claims.
    For the most part, the superimposition of the judicial 
review on the administrative processes of the Department of 
Veterans Affairs has had a positive effect. On a personal note, 
I spent 5 years, between 1985 and 1990, as a VA staff attorney 
at the Board of Veterans Appeals, reviewing thousands of 
veterans' appeals. In 1990, I was hired by DAV to represent 
veterans before the newly established U.S. Court of Veterans' 
Appeals, during which time I reviewed hundreds of potential 
judicial appeals records and represented hundreds of veterans 
before the court.
    After more than 2\1/2\ years of representing veterans 
before the court, I became frustrated with the court's failure 
to deal with legal arguments presented by appellants, i.e., 
their reluctance to reverse rather than remand a case. For 
example, after presenting a brief which argued for reversal of 
the BVA decision, counsel for the Secretary would confess 
error, alleging that the Board failed to provide adequate 
reasons or bases for its decision, whereupon the court would 
remand the cases back to the Board and open up the evidentiary 
record for further development, notwithstanding the appellant's 
argument that the record was sufficient to establish 
entitlement to the benefits sought.
    Unfortunately, 17 years after the court began hearing 
appeals, this practice still continues. In all too many cases, 
an appellant must appeal to the court at least twice to receive 
a decision on the merits of his or her appeal. In those cases 
where the Board has failed to provide adequate reasons or 
bases, it would appear to make more sense to require the Board 
on remand to explain its decision based on the evidence of 
record at the time of the original Board decision, provided the 
appellant has not argued that the record on appeal was 
defective.
    By requiring the Board to examine its decisions based on 
the evidence of record, the VA would be prohibited from going 
out on a fishing expedition to develop evidence to support its 
prior erroneous denial of benefits. Allowing VA to further 
develop evidence after having seen appellants' arguments 
regarding defects in its prior denied decision provides VA with 
a distinct advantage over appellants.
    Accordingly, I would recommend that when the court 
determines, and I might add this should be only in a very small 
percentage of the cases, that the Board decision is defective 
for failure to state adequate reasons or bases and the 
appellant has not alleged any defects in the evidence of 
record, the Board should be required to articulate its decision 
based on the evidence of record. In all other cases where the 
evidence is sufficient to establish entitlement to the benefits 
sought, the court should and must reverse the BVA decision.
    Another frustration experienced by appellants is delays in 
obtaining a disposition from the court, as we have heard in 
testimony and see on your charts, especially in single-judge 
decisions. In 1990, the court articulated in Frankel v. 
Dewinski that it would summarily decide by order an appeal 
where the case on appeal was of relative simplicity and does 
not establish a new rule of law, does not alter, modify, 
criticize, or clarify an existing rule of law, does not apply 
an established law rule to a novel facts situation, does not 
constitute the only binding precedent on a particular point of 
law, does not involve a legal issue of continuing public 
interest, and the outcome is not reasonably debatable. 
Unfortunately, many of these single-judge decisions take a year 
or longer to be decided. It is difficult to understand why an 
appeal of relative simplicity should take an inordinate amount 
of time to decide. Accordingly, I believe both the court and 
this Committee should closely examine why there are such long 
delays in cases of relative simplicity.
    Mr. Chairman, this concludes my testimony and I would be 
more than happy to answer any questions.
    [The prepared statement of Mr. Violante follows.]

    Prepared Statement of Joseph A. Violante, National Legislative 
                  Director, Disabled American Veterans

    Mr. Chairman and members of the Committee:
    The Disabled American Veterans (DAV) shares your interest 
in ensuring veterans have effective and efficient claims and 
appeals processes. Since Congress enacted legislation in 1988 
authorizing judicial review of decisions by the Board of 
Veterans' Appeals (BVA) and establishing what is now the United 
States Court of Appeals for Veterans Claims (the Court or CAVC) 
with special jurisdiction for that purpose, the complexion of 
the claims and appeals processes for veterans has changed 
dramatically. For the most part, the superimposition of 
judicial review on the administrative processes of the 
Department of Veterans Affairs (VA) has had a positive effect. 
With independent review from outside VA, we have seen the law 
carefully examined to ensure it is carried out according to 
congressional intent, and to ensure that correct application of 
the law takes priority over administrative expedience.
    Expedience and efficiency are, of course, not synonymous. 
Neither does efficiency mean solely speed nor a constrained 
expenditure of resources, but rather that a thing is done as 
well as possible with optimum speed and with the fewest 
resources necessary. There must be a balance among quality, 
speed, and resources. Because, in the name of efficiency, 
political forces often unrealistically press administrative 
agencies to produce more with less, real efficiency suffers.
    When that happens with VA, as it so often does, veterans 
suffer the consequences of the adverse impact. Judicial review 
can correct the injustices that result. By design, courts 
operate independently of these kinds of political pressures, 
and are therefore theoretically better guardians of the law and 
justice. Autonomy brings with it a special obligation to 
conscientiously pursue efficiency without outside pressure, 
however. Increasing case loads and slower processing times in a 
court may simply be the product of more work without a 
commensurate increase in resources, or it could signal 
declining efficiency, or both.
    The Court rightfully has a great deal of independence, but 
it should not operate without any oversight. As an ``Article 
I'' court, CA VC is an instrumentality of Congress, unlike 
Article III courts. So long as it does not affect the 
independence of the decisionmaking or encroach upon the broad 
discretion as to internal operating procedures, the DAV 
believes that limited oversight is appropriate. Should Congress 
find an imbalance between resources and workload, it is 
Congress' responsibility to remedy the shortfall through 
additional funding or any authority necessary to use available 
resources in different ways. Should Congress conclude that 
increasing case backlogs are the product of inefficiency, it 
can leverage improvement through more general pressures and 
without direct interference in the operations or decisionmaking 
processes. These principles involve no mysteries or concepts of 
which this Committee is unaware, but we believe they merit 
restating to provide an analytical foundation for consideration 
of the matters to be addressed.
    In his March 2, 2006, written statement to the Subcommittee 
on Military Quality of Life and Veterans Affairs, and Related 
Agencies of the House Appropriations Committee, Chief Judge 
William P. Greene, Jr., discussed ``a dramatically escalating 
number of new cases.'' In fiscal year (FY) 2005, the Court 
received 3,466 new cases, compared with a yearly average of 
2,400 cases for 8 of the preceding 10 years, an increase of 44 
percent during fiscal year 2005 and ``the largest number of 
case filings ever.'' That trend had continued during the first 
quarter of fiscal year 2006.
    The Chief Judge pointed to an increased number of denied 
appeals by BVA in fiscal year 2005. In fiscal year 2005, BVA 
issued 13,033 denials, compared with 9,299 the previous year. 
In addition, the number of appeals to the Court as a percentage 
of BVA denials rose considerably over the level in fiscal year 
2000 and earlier years, from 17.3 percent in fiscal year 2000 
to 26.6 percent in fiscal year 2005.
    According to the Chief Judge's testimony, the majority of 
appeals to the Court involve claims for disability benefits, 
which is consistent with BVA data listed in the fiscal year 
2005 Report of the Chairman showing that 94.2 percent of BVA 
dispositions during fiscal year 2005 involved disability 
compensation. VA's fiscal year 2007 Budget Submission indicates 
the number of veterans filing initial disability compensation 
claims and claims for increased benefits has increased every 
year since 2000, with disability claims from returning war 
veterans and veterans of earlier periods increasing from 
578,773 in fiscal year 2000 to 788,298 in 2005. By our 
calculation, this represents an average annual increase of more 
than 6 percent in the 5 years from the end of fiscal year 2000 
to the end of fiscal year 2005. VA projects it will receive 
910,126 claims in fiscal year 2006.
    Although the number of appeals listed as denied by BVA may 
be the best indicator of potential workload for the Court, 
appeals to the Court come from the total number of cases 
decided on the merits, that is, not remanded. Cases listed by 
BVA as ``allowed'' may not have been decided fully favorably or 
favorably on all issues. Of the 31,397 total BVA decisions in 
fiscal year 2003, the allowed and denied together totaled 
16,874. For fiscal year 2004, this total was 15,860. For fiscal 
year 2005, it was 20,128.
    The caseload volume upstream can be expected to influence 
the workload volume downstream, with some lag time. The input 
volume at the Court is an indicator of resource needs; the 
output volume is an indicator of efficiency.
    In his written statement, Chief Judge Greene acknowledged 
that case output has fallen off since fiscal year 2002. He 
attributed the decline to several factors--a spate of remands 
in 2000 to 2002 for compliance with new legislation that 
accounted for more dispositions; a full contingent of 
experienced judges up to 2002, with only five judges from 2003 
to the second quarter of FY 2005; and an increase in caseload 
between fiscal year 2004 and fiscal year 2005. (He did not 
explain how the increased caseload contributed to fewer 
dispositions.) In addition, he noted that nearly 60 percent of 
the new cases were filed by unrepresented appellants, requiring 
more work by the Court. Although he did not explain whether 
this represented an increase in pro se appellants, the Court's 
annual reports show that 70 percent of appellants or 
petitioners were unrepresented at filing in 2000 and that 58 
percent were unrepresented at filing in fiscal year 2005. At 
the time of closure, 29 percent were unrepresented in fiscal 
year 2005. In the 5 years from fiscal year 2001, an average of 
57.7 percent were unrepresented at the time they initiated 
action with the Court, and 26 percent were unrepresented at 
closure.
    In response to questioning from members of the 
Subcommittee, Chief Judge Greene reported that case production 
began increasing in 2005 as the newer judges became fully 
staffed and gained experience:
    I also would like to note that the number of cases decided 
in the first quarter of calendar year 2005 was 472. This was 
when our new judges were hiring staff and gradually receiving 
cases, and our senior judges were preparing to retire and no 
longer receiving new cases.
    In the last 3 months of calendar year 2005, when the new 
judges were fully staffed and had more than 6 month's 
experience, the number of cases decided increased by over 100 
to 579.
    In the first 59 days of calendar year 2006, we have already 
decided 366 cases.
    Following that trend, we can expect to decide almost 600 by 
the end of the first quarter. I have every reason to anticipate 
that we will continue to process the cases expeditiously.
    According to the Court's annual reports, the number of new 
cases declined from 2,442 in fiscal year 2000 to 2,296 in 2001 
and 2,150 in 2002. That number increased to 2,532 in 2003, 
declined to 2,234 in 2004 and rose, as noted, to 3,466 in 
fiscal year 2005. The total cases decided for those years were: 
2,164 in fiscal year 2000, 3,336 in 2001, 1,451 in 2002, 2,638 
in 2003, 1,780 in 2004, and 1,905 in fiscal year 2005. Cases 
that went to a full decision on the merits. presumably those 
that most reflect the Court's production, increased from 1,619 
in fiscal year 2000 to 2,853 in fiscal year 2001, dropped 
precipitously to 972 in 2002, increased to 2,152 in fiscal year 
2003, dropped substantially again to 1,337 in fiscal year 2004, 
and declined even more to 1,281 in fiscal year 2005. We note 
that the Court received 2,532 new cases in fiscal year 2003 and 
decided a total of 2,638, of which 2,152 were merits decisions, 
as compared with fiscal year 2005 when it received 3,466 and 
decided a total of 1,905, of which 1,281 were merits decisions. 
In 2005, the Court issued 56 fewer merits decisions than in 
fiscal year 2004. We note that the Court counts cases remanded 
on joint motions by the parties as merits ``decisions.''
    The Court issued 53 precedent decisions during fiscal year 
2005. Through May of this year, CA VC had issued 24 precedent 
decisions.
    The Court's annual reports show the average ``Time from 
filing to disposition'' was 379 days for fiscal year 2005. 
Chief Judge Greene stated in his oral testimony:

          I am happy to report that the average number of days from 
        filing to decision has decreased from high of 430 days in 
        calendar year 2005 to currently 370. Further, our statistics 
        show that 64.7 percent of all cases decided in calendar year 
        2005 were decided within 1 year. This is an increase from 30.8 
        percent decided within 1 year in calendar year 2004.
          Cases taking more than a year have decreased from 41.6 
        percent in calendar year 2004 to 22.4 percent in calendar year 
        2005.

    (Emphasis added.) Apparently, the fiscal year 2005 processing time 
of 379 days increased to 430 days for calendar year 2005 and had 
dropped back to 370 days at the time of the Chief Judge's March 2006 
testimony. The cited drop in the cases taking more than a year in 2005 
should be considered in light of the fact that the total cases decided 
in 2005 was made up of a higher number of procedural decisions and a 
lower number of merits decisions than in 2004 (if the fiscal year 
numbers we know from the Court's annual report are consistent with the 
calendar year numbers stated in testimony).
    According to the BVA Chairman's annual report for fiscal year 2005, 
the average length of time between the initiation of an appeal with a 
VA field office and receipt of the case at BVA was 824 days in fiscal 
year 2005. Issuance of a BVA decision took another 160 days on average. 
If we add another 370 days for a decision by the Court, the total time 
for an appeal is 1,354 days, nearly 4 years. Of course, that being the 
average, roughly half of all appeals can be expected to take even 
longer.
    Disabled veterans who are often elderly and quite sick must wait 
for unacceptably long periods of time for resolution of their appeals, 
and substantial percentages prevail ultimately. No doubt, the 
protracted delay creates a hardship for many.
    Although we can draw some inferences from the data publicly 
reported by the Court, much about the Court's internal operations is 
not transparent to the public, and more precise efficiency 
determinations would require data on the flow of cases, timelines, and 
volume of cases pending in each judge's chambers, as well as delays 
attributable to motions for extension of time by VA and appellants' 
counsel.
    Indisputably, the long processing times suggest inadequate 
resources, the need for increased efficiency, or both. In any event, 
with a 44 percent increase in new cases during fiscal year 2005, with 
that trend continuing into fiscal year 2006, and with approximately 
5,000 cases pending before the Court according to the Chief Judge's 
March 2006 testimony, we must question why the Chief Judge would 
request funding for only one additional employee or full time 
equivalent, a 1 percent increase in staffing.
    In his testimony, the Chief Judge stated: ``I am confident that we 
will reduce [the] backlog significantly and at the same time process 
all cases expeditiously.'' With more than three-quarters of fiscal year 
2006 passed, this Committee should look to the Court's most recent data 
(which DAV was unable to obtain) to determine if that seemingly 
ambitious and optimistic prediction was warranted.
    From the inception of judicial review of claims for veterans' 
benefits, the DAV has been a major participant in providing free 
representation to appellants before the Court, to complement our free 
representation of a large share of claimants throughout the 
administrative claims and appellate processes. In support of our 
primary mission of service to veterans, we provide all resources 
necessary to enable our staff of attorneys and non-attorney 
practitioners to effectively represent appellants before the Court. We 
believe disabled veterans, and their eligible family members, should be 
able to obtain the benefits a grateful nation provides for them without 
undue burdens or cost to them.
    The DAV appreciates the Committee's interest in this aspect of the 
backlogs and delays claimants must cope with in pursuing claims and 
appeals for veterans' benefits.
                                 ______
                                 
  Response to Written Questions Submittted by Hon. Daniel K. Akaka to 
                           Joseph A. Violante

    Question 1. Mr. Violante, can you please explain the need for the 
court to be housed in its own dedicated building, designed to its 
specific needs and befitting its authority? How could a dedicated 
courthouse aid in the diminishment of the court's caseload?
    Answer. Veterans and other persons claiming benefits from the 
Department of Veterans Affairs (VA) have benefited substantially and 
materially from the jurisprudence of the United States Court of Appeals 
for Veterans Claims (CAVC).
    During the almost 17 years since the CAVC was formed in accordance 
with legislation enacted in 1988, it has been housed in commercial 
office buildings. The Courtroom, chambers, and other space is 
inadequate to meet the present and future needs of the Court and those 
it serves. It is the only Article I court that does not have its own 
courthouse. The CAVC should have its own dedicated building that meets 
its specific functional and security needs, projects the proper image, 
and concurrently allows the consolidation of VA General Counsel staff, 
CAVC practicing attorneys, and veterans service organization 
representatives to the CAVC in one place. The CAVC 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.
    There is no direct correlation between a dedicated courthouse and 
the diminishment of the Court's caseload. However, it is in the 
interests of veterans and their dependents that the Court be accorded 
the same respect enjoyed by other appellate courts of the United 
States. It would also allow the Court to have additional space 
available for the possible recall of judges in the future.
    Question 2. You noted in your testimony that much of the court's 
internal operations are not transparent to the public. What more data 
would be required in order to determine court efficiency?
    Answer. Specific data showing the time that transpired following 
the date on which the appellant's reply brief was filed would serve 
this purpose. Chief Judge Greene was correct when he stated that both 
the appellant and VA often file motions for extension of time. Such 
additional time taken by the parties does not indicate any inefficiency 
on the part of the Court. Once the appellant's reply brief is filed, or 
20 days following the appellee's brief if no reply brief is filed, the 
case is before the Court for resolution. According to the Chief Judge, 
the judges of the Court disposed of approximately 1,300 appeals during 
Calendar Year (CY) 2005. Fewer than 60 of those were resolved in three-
judge, precedent decisions. The remaining 1,240 were decided in single-
judge orders or memorandum decisions. Each of the 1,240 were therefore, 
under the Court's Frankel precedent, 1 Vet.App. 23 (1990), of relative 
simplicity, controlled by the existing case law, and not reasonably 
debatable. Id. at 25-26. Nonetheless, the Court not infrequently takes 
between 1 and 2 years to resolve similar cases. Examples of long-
pending cases currently awaiting disposition include: Richer v. 
Nicholson, CAVC No. 03-0910 (reply brief filed May 3, 2004); Washington 
v. Nicholson, No. 03-0773 (reply brief filed June 21, 2004) ; Wakely v. 
Nicholson, No. 04-0196 (reply brief filed December 10, 2004); 
Palczewski v. Nicholson, No. 04-1001 (reply brief filed April 23, 
2005); Clark v. Nicholson, No. 04-0577 (reply brief filed June 6, 
2005); Jandreau v. Nicholson, No. 04-1254 (reply brief filed July 5, 
2005); Grant v. Nicholson, No. 04-1257 (reply brief filed July 7, 
2005).
    We understand that information about long-pending cases is gathered 
by the Court but not widely distributed. It appears that a list, the 
extent of which is not known to DAV, is compiled by the Clerk and that 
the list shows the long-pending cases in chambers. However, the 
information for all chambers is only made available to the Chief Judge. 
The associate judges receive information from the list only with 
respect to their chambers. Judges are not encouraged by their 
colleagues to complete old cases because their colleagues are unaware 
of these older cases.
    DAV believes that there is no need to unduly embarrass any judge of 
the Court. However, if the Clerk were required to include on the list 
all cases in which a reply brief had been filed 6 months or more 
earlier, and the complete list were required to be circulated to all of 
the judges of the Court, this action would encourage judges to complete 
the older cases. The Committee could consider asking the Court to 
provide the list to the Committee at a future date if efficiency did 
not improve.
    Question 3. How should court efficiency be measured?
    Answer. The DAV believes that Court efficiency should be measured 
in two ways. The first measure should be the number of days that elapse 
from the date the appellant files the reply brief, or the date 
following the deadline for appellant's reply brief, until the date on 
which the Court issues its decision. The standard should be 120 days in 
the case of single-judge dispositions and 180 in the case of a panel 
decision. An additional 90 days should be allowed in cases where the 
Court hears oral argument. These suggestions are in line with the time 
required for decisions from the United States Court of Appeals for the 
Federal Circuit. The second measure should be the number of 
dispositions, by either order or memorandum decision, completed per law 
clerk. Based on the number of memorandum decisions completed by the 
Court in CY 2005, approximately, 1,240 and the number of authorized law 
clerks, 28, the average number of decisions completed per law clerk was 
less than 1. The standard should be no less than 2, a number which the 
Court has achieved in the past.

    Chairman Craig. Well, gentlemen, thank you very much for 
being before us. I am pleased that your expression of concern 
and urgency is also that of the Committee's.
    A question to you, Mr. Terry, and possibly to Randy 
Campbell. To help the Court deal with its increasing caseload, 
the Court is considering using judges to conduct settlement 
conferences and some practitioners have recommended that the 
Court adopt a formal mediation system. In your opinion, would 
adopting either of these measures help speed resolution of 
cases before the court?
    Mr. Terry. I certainly request Randy's view, as well, but I 
have seen the process work in other departments and it 
certainly can be effective if, in fact, the system is well 
constructed and both sides have the opportunity to be heard. 
Sometimes a difficulty that I have experienced, and this was 
both in the Department of State and Department of the Interior 
where we set up similar systems, is that scheduling settlement 
conferences of this kind and bringing them to conclusion often 
is as time consuming as hearing some of the cases. But I would 
certainly defer to Randy on his thoughts, as well.
    Mr. Campbell. Mr. Chairman, I think----
    Chairman Craig. Randy, before you respond, let me add to 
that another question that you may want to respond to, and Joe, 
I will turn to you later. The second question would be--and you 
started to touch on it, Jim--are there any specific advantages 
or disadvantages that you would foresee to either of these 
approaches?
    Mr. Campbell. Mr. Chairman, I think that the numbers we 
have heard today indicate that to address the backlog of cases 
requires open-mindedness and creativity, and the idea of 
mediation or something like that certainly is worth 
consideration. I would note that under the court's current 
procedures, they have a very active and expert central legal 
staff that conducts conferences between the parties, where 
there is a represented veteran, in order to narrow the issues 
and at times to encourage the parties, when they can, to 
negotiate a joint disposition.
    I don't have the exact numbers with me, but I believe that 
when one looks at the total number of cases remanded by the 
court over the last couple of years, that perhaps 50 percent or 
more were cases remanded on joint motion of the parties. So the 
parties themselves in the current process communicate, and are 
very active in trying to find a joint disposition of the case 
so it doesn't have to go to a judge. And, in fact, in my office 
with the General Counsel's Office, we have a team that we call 
the early intervention team that is devoted to this very 
purpose.
    Chairman Craig. OK.
    Joe.
    Mr. Violante. Thank you, Mr. Chairman. I would certainly 
support that type of an endeavor before this court. I have seen 
it work in civil courts and I think it certainly would be 
beneficial to have it in this court here on a more active 
basis. As Randy pointed out, the central legal staff does 
conduct joint conferences, but it certainly would be nice to 
elevate that to another level.
    Chairman Craig. Joe, a question of you. Mr. Terry noted in 
his testimony that some spikes in the appeal rate result from 
efforts to present particular legal issues to the Court by 
filing numerous cases that all raise the same legal issue. For 
example, you mentioned that hundreds of recent appeals to the 
Court all sought the same relief, dual ratings for a bilateral 
tinnitus. In those circumstances, would it be more efficient to 
allow some type of limited class action rather than having 
hundreds, if not thousands, of cases which raise the same issue 
proceeding separately through the system?
    Mr. Violante. Mr. Chairman, that is an interesting question 
and I am not sure how the mechanics would work, but it 
certainly would be something to explore. This is an appellate 
court and how do you get that class together? Fees would have 
to be determined. But certainly, I think it would certainly 
make it more expedient to move those through some other way 
than currently is the process.
    Chairman Craig. Mr. Terry, Mr. Campbell, do you have any 
observation in relation to that question?
    Mr. Terry. I certainly think that this can be done and can 
be worked out. I think we need to adopt some of the procedures 
that are presently used in other similar courts, similar 
Article I courts that presently do this. I honestly believe 
that it can be worked out with relative simplicity, sir.
    Chairman Craig. Well, gentlemen, that is the extent of my 
questions. This Committee and my colleagues, as I expressed to 
the Judge and the judges in attendance, are very intent on this 
issue. We are going to stay with it and we want you to stay 
with us as we work through this thing.
    If we can't change that trend that is demonstrated behind 
me, we are going to have an awful lot of our veterans standing 
in line waiting for a very long time for something they may or 
may not deserve, and that is why we have this process. I think 
it is unacceptable that we allow a ping-pong effect in some 
instances within the legal system to satisfy the legal system 
more than to satisfy the need of the veteran. And while it may 
be intent on satisfying the need of the veteran, oftentimes it 
becomes, if I can be crass enough to use the word, a game in 
itself. That is just unacceptable.
    That is why the Court was developed. It is why we are 
intent on, where we can, making it effective. We viewed 
historically a kind of the exception to the rule, but as the 
world changes, we are recognizing that maybe this Court ought 
to become more like other Article I courts in many respects. 
And certainly dealing with the process and procedure as it 
relates to timely handling of the cases is something that I 
think we are going to review and have to review on behalf of 
the charge of this Committee and its responsibility to 
veterans.
    Your thoughts as we work our way through this and work with 
the judges to resolve this is going to be extremely important 
because the Court itself is relatively new. And you are right, 
this is a dynamic process that is changing based on the 
character of veterans, their needs, based on statute and all 
that we do here, and it has to be dealt with in a responsible 
and timely fashion.
    So thank you all very much for being with us this morning 
and we appreciate your testimony.
    The Committee will stand adjourned.
    [Whereupon, at 11:43 a.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              

  Prepared Statement of Robert V. Chisholm, Past President, National 
                   Organization of Veterans Advocates

    Thank you for inviting testimony from the National Organization of 
Veterans Advocates (NOVA) on the issue of the increase in the number of 
appeals being received by the United States Court of Appeals for 
Veterans Claims (Court) and the number of cases pending at the Court.
    The Court's increasing case load concerns all who work for 
veterans. NOVA appreciates the Court's openness in trying to resolve 
this problem, including its recent ``Bright Ideas'' breakfast at the 
Court's Judicial Conference where it invited practitioners to share 
ideas on improving the Court's processes. In addition, NOVA understands 
that the Court has only recently reached its full complement of Judges. 
Nonetheless, as the numbers of filings and decisions demonstrate, 
careful attention by the Court is required. The true nature of the 
problem, moreover, is not revealed in the statistics provided to 
Congress because the number of reported ``cases decided'' includes the 
decisions the Judges make on the merits after briefing along with 
entries made by the Clerk based on Joint Motions from the parties to 
remand a case. (In a Joint Motion to Remand, the parties identify one 
or more administrative errors and request a remand to the Board of 
Veterans' Appeals based on that. The entry approving the Motion is made 
by the Clerk, without review from a Judge.). The ``cases received'' 
compared to ``cases decided,'' furthermore, does not reflect the length 
of time that cases have been pending--some for as long as 2 years after 
briefing is completed.
    NOVA's experience suggests that some of the current backlog is 
related to the Court's historical treatment of cases and claims; i.e., 
it has typically remanded, not reversed, when it deemed that the Board 
of Veterans' Appeals erred. And, once it determines that remand is 
proper, it will generally decline to review other errors. Best v. 
Principi, 14 Vet. App. 18 (2001); Mahl v. Principi, 15 Vet. App. 37 
(2001). As a result, many cases on appeal to the Court are there for 
the second, third, or fourth time, often with the same issues to be 
decided. Add those to the cases that are on appeal for the first time, 
and a backlog cannot help but be created. Even the most hard-working 
and productive Judges will not be able to keep up.
    NOVA believes that there has been resistance to reversal of Board 
decisions by the Court. This has discouraged the VA from realistic 
efforts at settlement of some or all issues in a case. Veterans' 
representatives accept offers to remand cases on terms that do not 
resolve many issues because they perceive that the odds of obtaining 
greater relief from the Court are very low and because the delays are 
so long. It appears to NOVA that the Office of the General Counsel 
could understandably believe that, because the odds of reversal are 
low, they have nothing to lose by refusing to resolve issues in a 
meaningful way and instead force a decision from the Court.
    Congress attempted to correct the relatively small percentage of 
reversals in 2002 when it added the phrase ``or reverse'' to 38 U.S.C. 
Sec. 7261(a)(4). Veterans Benefits Act of 2002, Sec. 401, Pub. L 107-
330, 116 Stat. 2832 (2002). The Court has not yet established 
parameters through its case law that would support a greater percentage 
of reversals. The Court, rather, continues to hold that reversal is 
only possible when the only permissible view of the evidence is 
contrary to the Board's decision; and that, where the Board has 
incorrectly applied the law, failed to provide an adequate statement of 
reasons or bases for its determinations, or where the record is 
otherwise inadequate, remand is generally the appropriate remedy. 
Washington v. Nicholson, 19 Vet. App. 362, 371-372 (2005). But if the 
evidence does not preponderate against the claim, or where the Board 
has made all the necessary factual findings, the Court could--and 
should--reverse. See Washington, at 375 (dissent by Kasold, J.); Rose 
v. West, 11 Vet. App. 169, 172 (1998) (``This is not to say that 
medical evidence of nexus could not be rebutted, in an appropriate 
case, by medical evidence that demonstrates the significance of a lack 
of continuity of symptomatology. However, no such evidence exists and 
it is not the function of judicial review simply to accord the 
government a remand to obtain such evidence.'').
    The Court has also attempted to limit the number of cases it must 
decide through a Pre-Briefing Conference system conducted by attorneys 
in the Court's Central Legal Staff. These conferences can be helpful in 
forcing the parties to communicate about the case and in focusing the 
issues. But veterans' representatives have been frustrated by the lack 
of preparedness by some opposing counsel and the lack of true mediation 
techniques applied to elicit concessions and limit the issues. Limiting 
the issues and limiting the cases that need to be briefed would in turn 
limit the number of decisions the Court needs to make.
    Based on the above, NOVA therefore recommends that Congress:
    Institute a case-tracking and reporting system based on accurate 
descriptions of case status, separating cases into cases that have been 
decided after briefing from other cases in the system; and tracking the 
time from the completion of briefing to the interim steps of completion 
of CLS memo and assignment to a Judge. Reporting accurate numbers helps 
focus on the true nature of the problem and thus helps identify any 
needed solutions.
    Require the Court to adopt a meaningful mediation system that would 
increase the number of cases resolved prior to briefing and would limit 
the number of issues the Court would need to address.
    Amend the statute to overturn Best/Mahl, so that issues that are 
likely to be presented again on remand are resolved the first time the 
case is appealed.
    Amend the statute to clarify that the Court is permitted to reverse 
when the evidence establishes the right to the benefit sought or that 
an error of law has been committed by the Board.
    Amend the statute to clarify that when the evidence of record 
establishes the right to the benefit sought, the Court should not 
remand simply to give the agency another opportunity to develop 
evidence that would support a denial of the benefit.
    Thank you again for this opportunity.
  

                                  
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