[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



                       THE CHALLENGES FACING THE
                       U.S. COURT OF APPEALS FOR
                            VETERANS CLAIMS

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON DISABILITY ASSISTANCE
                          AND MEMORIAL AFFAIRS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 22, 2007

                               __________

                           Serial No. 110-24

                               __________

       Printed for the use of the Committee on Veterans' Affairs









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                     COMMITTEE ON VETERANS' AFFAIRS

                    BOB FILNER, California, Chairman

CORRINE BROWN, Florida               STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas                 CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine            JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South     RICHARD H. BAKER, Louisiana
Dakota                               HENRY E. BROWN, JR., South 
HARRY E. MITCHELL, Arizona           Carolina
JOHN J. HALL, New York               JEFF MILLER, Florida
PHIL HARE, Illinois                  JOHN BOOZMAN, Arkansas
MICHAEL F. DOYLE, Pennsylvania       GINNY BROWN-WAITE, Florida
SHELLEY BERKLEY, Nevada              MICHAEL R. TURNER, Ohio
JOHN T. SALAZAR, Colorado            BRIAN P. BILBRAY, California
CIRO D. RODRIGUEZ, Texas             DOUG LAMBORN, Colorado
JOE DONNELLY, Indiana                GUS M. BILIRAKIS, Florida
JERRY MCNERNEY, California           VERN BUCHANAN, Florida
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota

                   Malcom A. Shorter, Staff Director

                                 ______

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                    JOHN J. HALL, New York, Chairman

CIRO D. RODRIGUEZ, Texas             DOUG LAMBORN, Colorado, Ranking
PHIL HARE, Illinois                  MICHAEL R. TURNER, Ohio
SHELLEY BERKLEY, Nevada              GUS M. BILIRAKIS, Florida

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.


























                            C O N T E N T S

                               __________

                              May 22, 2007

                                                                   Page
The Challenges Facing the U.S. Court of Appeals for Veterans 
  Claims.........................................................     1

                           OPENING STATEMENTS

Chairman John J. Hall............................................     1
    Prepared statement of Chairman Hall..........................    32
Hon. Doug Lamborn, Ranking Republican Member.....................     3
    Prepared statement of Congressman Lamborn....................    33

                               WITNESSES

U.S. Court of Appeals for Veterans Claims, Hon. William P. 
  Greene, Jr., Chief Judge.......................................     4
    Prepared statement of Judge Greene...........................    34
U.S. Department of Veterans Affairs, Hon. James P. Terry, 
  Chairman, Board of Veterans' Appeals...........................    24
    Prepared statement of Mr. Terry..............................    49

                                 ______

Disabled American Veterans, Brian Lawrence, Assistant National 
  Legislative Director...........................................    17
    Prepared statement of Mr. Lawrence...........................    47
National Organization of Veterans' Advocates, Robert Vincent 
  Chisholm, Past President.......................................    15
    Prepared statement of Mr. Chisholm...........................    44
National Veterans Legal Services, Barton F. Stichman, Joint 
  Executive Director.............................................    12
    Prepared statement of Mr. Stichman...........................    39

                   MATERIAL SUBMITTED FOR THE RECORD

``Disability Claims Appeals Swamp Veterans Court,'' USA Today, 
  Gannett News Service, July 13, 2006, by Dennis Camire..........    53
``Some Veterans Die Waiting for Benefits,'' Washington Dateline, 
  Media General News Service, October 18, 2006, by James W. 
  Crawley........................................................    54
Followup letter, dated June 5, 2007, from the Honorable William 
  P. Greene, Jr., Chief Judge, U.S. Court of Appeals for Veterans 
  Claims, in response to inquiry from Chairman John J. Hall 
  during the hearing.............................................    55
















 
                 THE CHALLENGES FACING THE U.S. COURT
                     OF APPEALS FOR VETERANS CLAIMS

                              ----------                              


                         TUESDAY, MAY 22, 2007

            U. S. House of Representatives,
              Subcommittee on Disability Assistance
                              and Memorial Affairs,
                            Committee on Veterans' Affairs,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:11 a.m., in 
Room 334, Cannon House Office Building, Hon. John Hall 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Hall, Rodriguez, Hare, Lamborn.

               OPENING STATEMENT OF CHAIRMAN HALL

    Mr. Hall. Good morning, everyone. First I will ask 
everybody to rise for the Pledge of Allegiance. The flags are 
in the front and rear of the room.
    [Pledge of Allegiance.]
    Mr. Hall. Thank you all for joining us for the House 
Subcommittee on Disability Assistance and Memorial Affairs 
hearing on the challenges facing the U.S. Court of Appeals for 
Veterans Claims (CAVC).
    I would first like to thank the witnesses for appearing 
today before the Subcommittee. I know the issues pertinent to 
the Court of Appeals for Veterans Claims and the ease of the 
administration of justice for our veterans is of the utmost 
importance to you.
    I also want to commend Judge Greene of the Court of Appeals 
for Veterans Claims for the exceptional job he has done with a 
relatively young bench. He has been successful in increasing 
the Court's efficiency and productivity through innovative 
management approaches, especially with the recall of retired 
judges.
    I know that you are also going to benefit from successful 
efforts by this Committee to increase veterans' funding that 
will provide additional resources to your office.
    You deserve it. You have certainly stepped up to the plate 
for our veterans and I want you to continue to call on this 
Subcommittee and this Congress for the resources you need.
    However, no one will deny that more needs to be done to 
create a better system of appellate justice for our veterans. 
The merry-go-round of the appeals process, from the Regional 
Office to the Board of Veterans' Appeals to the Court, and the 
usual ``hamster wheel'' of remands back and forth between the 
three has turned into a system of injustice for some of our 
veterans.
    [Charts.]
    Mr. Hall. I would direct everyone's attention to the charts 
displayed that show the appeals process for veterans' claims. 
As the retired judges of the Court have indicated in previous 
statements before Congress, with four levels of appeals, the 
one administrative to the board and three possible levels of 
judicial appeal, ``This is just more justice than the system 
can bear.''
    Also, we would like to submit into the record two news 
articles in the print media, one from Washington Date Line and 
one from USA Today about the issue. Hearing no objection, they 
will be added to the record.
    [The articles referenced by Chairman Hall, ``Disability 
Claims Appeals Swamp Veterans Court,'' USA Today, Gannett News 
Service, July 13, 2006, by Dennis Camire, and ``Some Veterans 
Die Waiting for Benefits,'' Washington Dateline, Media General 
News Service, October 13, 2006, by James W. Crawley, appear on 
page 53.]
    Firstly, as you know, the veteran can appeal the Regional 
Office decision to the Board of Veterans' Appeals, the BVA. 
This process can take on average 2 years. From there, the 
veteran can appeal the BVA decision to the Court of Appeals for 
Veterans Claims where the average time from filing to 
disposition is 351 days. From there, an appeal can be made to 
the U.S. Court of Appeals for the Federal Circuit and from this 
Court, an appeal can be made to the Supreme Court.
    This cycle can repeat itself a few times for veterans in 
many different variations before final adjudication. The 
question becomes, at what cost to the administration of justice 
does this cycle represent for our veterans?
    For instance, I know that many take pause with the review 
of one Federal intermediate appellate court, the CAVC, by 
another Federal intermediate appellate court, the Federal 
Circuit Court. I am wondering what is gained by this unique 
additional bite at the apple.
    Additionally, the veterans appeals process is interlaced 
with vacated and remanded decisions, cases sent back for a new 
decision or correction resulting in an appeals cavalcade of 
sorts that ends up creating extensive and unacceptable delays 
in the adjudication of veterans' claims.
    This process adds years to the process and the Subcommittee 
has been alerted to cases pending on appeal for more than a 
decade. In fact, many appellants die while waiting for finality 
in their appeals. At that point, the CAVC appeal usually dies 
as well with little recourse for surviving dependents, spouses, 
and estates. This is not the desired result for our veterans' 
beneficiaries.
    I look forward to hearing the witnesses' views on these 
phenomena of the veterans appeals process. Likewise, I look 
forward to hearing testimony on ways to improve processes 
within the Court itself. Particularly I am interested in 
examining the issue pertaining to expanding the interpretation 
of prejudicial error which to date has been interpreted as 
narrowly as possible by the Court.
    I am aware in many instances that often for the sake of 
expediency, the Court will not resolve all issues raised on 
appeal and will vacate and remand on only one aspect of error 
raised on brief.
    I also realize that the Court by statute is not allowed to 
make findings of fact or review cases de novo, to weigh BVA or 
RO findings of evidence and law anew under 38 USC, section 
7261. However, I would like to examine the value of allowing 
the Court to review cases de novo and make determinations of 
fact without first remanding to the Board of Veterans' Appeals 
to supplement the record or to correct the error.
    I know the National Veterans Legal Services Program, the 
National Organization of Veterans' Advocates, and Disabled 
American Veterans have ideas in this area and I am anxious to 
explore them.
    Lastly, I look forward to hearing from the U.S. Department 
of Veterans Affairs (VA), represented today by Chairman Terry 
of the BVA, accompanied by the Mr. Randy Campbell, an Assistant 
General Counsel with the VA's General Counsel's Office that 
represents the agency before the Court, on how it can reduce 
the number of remanded cases by increasing the accuracy of its 
decisionmaking.
    I also would appreciate hearing about problems it sees 
systemwide and the role it plans to take in lessening the 
appellate ``hamster wheel,'' as they say, for our veterans 
especially in light of the expected surge in filings by our 
returning OEF/OIF veterans.
    The VA as the gateway in the appeals process as well as the 
creator of the record that forms the basis for appellate 
review, should amplify its role in the overall improvement of 
the benefits claims adjudication process.
    Thank you. I would now like to recognize Ranking Member 
Lamborn for his opening statement.
    [The statement of Chairman Hall appears on page 32.]

             OPENING STATEMENT OF HON. DOUG LAMBORN

    Mr. Lamborn. Thank you, Mr. Chairman, for recognizing me 
and I thank you for holding this hearing on the Court of 
Appeals for Veterans Claims and its role in the efficient 
processing of the disability compensation claims.
    I welcome our witnesses, especially Chief Judge Greene, and 
thank you all for your contributions to our veterans. The Court 
has come far since its 1988 founding and by all accounts is 
largely producing quality decisions.
    Judge Greene, you are to be commended for making use of 
Title 38 and recalling five retired judges to increase your 
productivity. I note the emphasis you place on a dedicated 
courthouse and adequate room for a growing Court, and I am most 
interested in ensuring that you have the facilities you need.
    We face an unprecedented challenge as the number of 
compensation and pension claims increase faster than the VA's 
ability to process them. Further, accuracy is not what it 
should be, driving up appeals, and we are seeing among veterans 
a growing propensity to appeal.
    These factors have already had a dramatic effect on the 
Court's workload which has essentially doubled in the last 10 
years. The number of pending cases has doubled the number 
pending 3 years ago and more than 3 times the number pending a 
decade ago. We must be attentive to the Court's ability to 
handle demands which presumably will continue to climb.
    I am, therefore, interested in learning more about the 
efficiency of the Court's operations. The phenomenon called the 
``hamster wheel'', and the Chairman mentioned that a moment 
ago, has caught my eye also. Perhaps there is a good rationale. 
It seems inefficient for a veteran to appeal a multi-issue 
denial from the Board of Veterans' Appeals only to see one 
issue addressed and perhaps remanded or vacated by the Court at 
a time.
    According to testimony we have received, this stretches the 
appeals process for often aging veterans by years. I do not 
believe that the Court is required to do business this way nor 
would it appear that it contributes to higher Court 
productivity. Our veterans deserve the best benefits delivery 
system we can provide.
    In my brief period as Ranking Member, I have learned much 
about that system. I was pleased to work with Chairman Hall 
over the past few weeks on legislation that would improve how 
we serve veterans applying for benefits that they have earned.
    In the testimony, we have read numerous suggestions 
regarding the Court's operations and I now look forward to our 
discussion on this essential facet of the benefit system.
    Mr. Chairman, I yield back.
    [The statement of Congressman Lamborn appears on page 33.]
    Mr. Hall. Thank you, Mr. Lamborn.
    After the first panel is finished giving their testimony, 
Members will be recognized for 5 minutes to make opening 
remarks or ask questions.
    Chief Judge Greene, thank you for coming this morning. I 
know you have a busy schedule and we will try to get you out of 
here as soon as possible. If you would please introduce 
yourself for the record?
    Judge Greene. Thank you, Mr. Chairman, Ranking Member 
Lamborn, and Members of the Committee, for inviting me here 
today to discuss the challenges facing the U.S. Court of 
Appeals for Veterans Claims.
    With me at the table, I have judges Mary Schoelen and Al 
Lance who constitute my Legislative Committee as part of the 
Board of Judges at the Court. That is why they are sitting with 
me today.
    Mr. Hall. Thank you, Judge Greene. You will be recognized 
for 5 minutes for oral remarks and your complete written 
statement will be made part of the official record.
    Judge Greene. Thank you very much.
    Mr. Hall. You are recognized for 5 minutes.

  STATEMENT OF HON. WILLIAM P. GREENE, JR., CHIEF JUDGE, U.S. 
              COURT OF APPEALS FOR VETERANS CLAIMS

    Judge Greene. Chairman Hall, let me initially start by 
saying the Court, as a Federal Court of Appeals, is a national 
Court of record charged with conducting a legal review of 
adverse final Board of Veterans' Appeals' decisions on 
veterans' claims.
    Thus, the judges of the Court do not adjudicate the facts 
of the claims as would a VA adjudicator or a Board of Veterans' 
Appeals

veterans' law judge. Rather, like other Federal appellate 
Courts, we must determine whether the Board decision is legally 
correct or otherwise free of any prejudicial error affecting 
the fairness of a previous adjudication.
    Judicial review of decisions of veterans' claims is 
relatively new. It has been a tremendous challenge since 1989 
where there had not been any legal antecedent. There were 
statutes exempting the Department of Veterans Affairs decisions 
from judicial appellate review unlike other executive agencies 
or departments who had to face that appellate review.
    Congress provided that independent review when it created 
the Court in 1988. Thus, over the course of almost 20 years, 
there has been created a body of veterans' law that serves to 
promote fundamental fairness and legal process in this very 
complex area. At the same time, this body of law has produced a 
bar of experienced veterans' law attorneys who are now 
available to guide veterans and others through this judicial 
appellate process.
    Incidentally, before 1988, attorneys could not charge more 
than $10.00 for representing a veteran before VA. Once the 
Court was established, a veteran could not be charged a fee for 
representation at VA, but a lawyer could represent a veteran 
after the Board made its first final decision.
    Now we see the upcoming event of lawyers representing 
veterans at VA starting this summer. Thus, with this attorney 
involvement, it comes as no surprise to the Court that there 
have been unparalleled increases in our caseload.  
Additionally, because we are 20 years old and have matured, a 
growing awareness among veterans and their families of the 
existence of veterans' appellate rights and the value of 
judicial review has played a significant role in that regard.
    And most importantly, an upswing of VA adjudications of 
veterans' claims, especially at the Board of Veterans' Appeals, 
has certainly opened the door to many appeals coming to the 
Court and our doors are always open because every veteran as a 
matter of right has an appeal to our Court.
    The charts that I provided in my prepared statement give 
you a snapshot of our current caseload inventory. Most of the 
cases are in one stage or the other. The majority of them are 
still in the pre-briefing stage or the briefing stage and will 
not be ready for review for quite some time.
    As cases move toward the review stage, I am directing our 
available resources toward meeting the challenges accompanying 
this caseload. These available resources include ramping up our 
options in alternative dispute resolution. Increased use of the 
staff attorneys and retired judges may pay even greater 
dividends in this area. Indeed, appointment of mediators or 
magistrates to perform this important work is an attractive 
avenue to consider.
    Recalling at the right time our retired judges has proved 
helpful in moving some of the cases and by continuing to build 
on the gained experiences of the sitting judges, we will be 
able to erect a Court structure that will sustain our ability 
to decide these cases efficiently and thoroughly.
    These efforts can be enhanced further by promulgating rules 
that revise the way we acquire a record on appeal and defining 
when we may issue summary actions in the appropriate cases.
    And on the technical side, we have initiated a plan to 
emulate many of our Federal and State sister courts by 
implementing electronic filing. Such technology will help us 
reduce some of the administrative delay that accompanies the 
voluminous filings that are associated with appellate 
litigation.
    Lastly, but certainly not least, a sustained increase in 
work will require a sustained increase in work force and space. 
Our present space is or will be inadequate for the type of 
caseload we are now experiencing. The Court is the only 
national Court of record without its own dedicated courthouse.
    What better time than now to have a courthouse that will 
serve as a lasting symbol and beacon of justice that expresses 
the Nation's gratitude and respect for the sacrifices of 
America's sons and daughters who have served in our Armed 
Forces and their families. We need your commitment to support 
this endeavor.
    The challenges facing the Court are significant, but they 
are challenges that were anticipated when the Court was created 
almost 20 years ago to conduct the independent judicial review 
of thousands of decisions made by VA. We will strive to the 
best of our abilities to meet the challenge effectively and 
efficiently.
    We appreciate your interest in the Court. Our discussions 
ensure that our compatible goals mesh properly in advancing the 
concepts of judicial review of decisions on veterans' claims. I 
look forward to answering your questions.
    [The statement of Judge Greene appears on page 34.]
    Mr. Hall. Thank you, Judge Greene.
    First of all, I will ask you a couple of questions myself. 
You mentioned that recalling retired judges has been useful, 
but that acquiring sufficient staff when recalling a judge is a 
problem. Is there a need to hire more staff and is recalling a 
judge a long-term solution?
    Judge Greene. Recalling a judge for the 90-day period is 
certainly a helpful solution. When we initiated this last 
April, I was very much concerned that we would not be able to 
provide adequate support for them. A judge at the Court has 
four clerks and a secretary and we certainly did not have that 
kind of capability.
    Nevertheless, with the caseload, when I made the decision 
to recall the judges, I had to take staff attorneys from the 
central legal staff who would be otherwise reviewing cases for 
chambers and use them as clerks for the recalled judges. That 
worked to some extent, but it is not enough because at that 
point, it was difficult to get additional cases out of the 
central legal staff and get them sent to chambers.
    Consequently in my budget request and in the current 
continuing resolution, I have been able to acquire three 
additional staff attorneys for the central legal staff and when 
a recalled judge is called, those individuals or at least three 
of those individuals will be identified specifically as support 
clerks for the retired recalled judges. And we think that 
perhaps with that type of support we will be able to increase 
their productivity.
    Mr. Hall. Would you comment, please, on the Court's 
interpretation of the Rule of Prejudicial Error?
    Judge Greene. The statute clearly tells us to take due 
account of the Rule of Prejudicial Error. We have been trying 
to do that over the past 20 years. At every turn, there has 
been some indication, at least by the Federal Circuit who 
reviews our decisions, that we either are not fact finders to 
make those determinations or that in the paternalistic 
beneficent environment that is VA, the error is presumed, 
prejudicial error is presumed. And as a result, we are tackling 
that issue now.
    We recently decided a couple of cases addressing 
prejudicial error with an attempt to describe and define how 
this Court would indeed take due account of the Rule of 
Prejudicial Error. It was accepted halfway by the Federal 
Circuit. I do not know whether the Federal Circuit will decide 
to define that for us, but it would be my hope that we would be 
able to define it ourselves.
    Mr. Hall. Thank you.
    Another topic you addressed in your statement was that 
veterans or qualifying family Members may file an appeal. Can 
you define what you mean by qualifying family Members?
    Judge Greene. What I mean by it? My definition is the same 
as the statute and it is the surviving spouse of the veteran or 
qualifying children of the veteran.
    Mr. Hall. Simple enough. Thank you.
    Do you have an opinion on the effect on the overall process 
of the veteran's option to go to the Circuit Court. Do you have 
an opinion on the possibility mentioned that perhaps the next 
level of appeal should be the Supreme Court, rather than a 
lateral move?
    Judge Greene. In a nutshell, I would like to have the 
opportunity to provide you a written response to that question 
as well. But for now we have to examine why the Federal Circuit 
was created or this serial appellate review was created 
initially.
    [The information was provided in a followup letter from 
Judge Greene, which appears on page 55.]
    And one can say that perhaps it was designed to promote 
uniformity in the system that was new. There was no legal 
antecedent in veterans' law. And as a result, as a new Court 
like the then U.S. Court of Veterans Appeals was finding its 
way or blazing the trail of veterans' law, there needed to be 
perhaps some type of further Article 3 review of those 
decisions.
    But now we have developed 20 volumes of veterans' law and 
in most cases, the Federal Circuit receives about 350 to 400 
appeals per year of the 3,000 cases perhaps that we decide, 
maybe 10 percent. And of those, a substantial number of them 
are dismissed. That leaves a very small percentage of cases 
that either are remanded back to us or reversed over different 
opinions on how the law should be addressed.
    Whenever you have a higher court, it is inevitable that 
there will be reversals, but that does not necessarily mean 
that justice is better done because there is that higher court. 
We are not infallible because we are not final. And as a 
result, until we are able to employ our expertise appropriately 
to the veterans law arena, we will always have this dichotomy 
with the Federal Circuit second guessing the decisions of the 
Court.
    Mr. Hall. Thank you very much, Judge Greene.
    Now I will recognize our Ranking Member, Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    Chief Judge Greene, why do appeals require approximately 4 
months of processing by the Court's central legal staff after 
the final pleading is filed before the case is assigned to a 
judge, especially in light of the fact that each judge is 
authorized four law clerks?
    Judge Greene. I was not familiar exactly with that 
particular timeframe. But once a case is joined, that is the 
briefs have been filed by the parties, the cases are then 
assigned to the central legal staff.
    One of the initial steps the central legal staff takes when 
receiving a case in that manner is to determine in a pre-
screening of those cases whether or not any of them perhaps can 
be worked for settlement. They have already done it once 
before, but perhaps the second time around they might be able 
to do it once the issues have been joined and the briefs have 
been filed.
    But currently, until I got the 3 additional central legal 
staff attorneys, there were 8 attorneys to handle those 400 to 
500 cases. And as a result, I think experience has shown that 
it just takes that time for them to go through the file, 
prepare a memorandum, and they prepare a recommendation that 
then goes back to the public office. And when the public office 
receives the case, they then on our assignment wheel assign the 
case to a judge. And then, that whole packet along with the 
recommendation from central legal staff, comes to chambers for 
the pre-screening by the judge.
    Mr. Lamborn. Okay. Thank you.
    How many retired judges would be willing to work longer 
than the required 90 days if recalled? Do you have any idea?
    Judge Greene. I know that they were not willing to do so 
this time because I, quite frankly, did not ask them because I 
wanted all of them to participate. We do not have the space to 
have five judges sitting around in our courthouse.
    So, once I decided to initiate the recall, I wanted to make 
sure everyone had a fair opportunity and so all five that were 
available did serve. And as I go into this next iteration, we 
will then start looking at the possibilities to see if they 
will serve longer.
    Mr. Lamborn. Okay. Thank you.
    Now, we have talked about the ``hamster wheel'' a little 
bit. Can you maybe explain that a little better and also 
provide your response to other testimony that states that the 
Court sometimes unnecessarily prolongs the appeals process for 
veterans by remanding to the Board single issues within a given 
claim?
    Judge Greene. Well, the ``hamster wheel'', that is a new 
concept, I suppose. I think it is more associated with the fact 
that once the ``Veterans Claims Assistance Act'' was passed in 
2000, it changed the way we did business. We had a well-
developed body of law up until that time about how we go about 
reviewing a case and what it took for a claim to be actually 
processed at VA.
    With the notice provisions associated with the ``Veterans 
Claims Assistance Act,'' it created another right for the 
veteran that we had to then ensure that the Department of 
Veterans Affairs carried out and that was making sure that the 
veteran was made aware of the way to substantiate his or her 
claim at VA. Without finding that any error was harmless, we 
had no other choice, but once we knew that that error existed, 
to return the case to give the veteran that opportunity to 
participate fairly in the adjudication process at VA. And as a 
result, we would remand the case to VA to do it correctly.
    If there were other issues associated with that case and 
those issues did not give the veteran any more remedy than a 
remand, in other words, there was no likelihood of there being 
a reversal as to any of those issues but simply a remand for 
that error, then to preserve judicial economy, the case was 
still returned to the VA for the veteran to be able to make 
those other arguments before VA.
    Remember, VA is a nonadversarial setting. At the Court, it 
is adversarial. And as a result, the veteran for the first time 
perhaps has raised this issue to the Court. Now the veteran can 
raise that issue to the Board or to the Regional Office and 
perhaps receive the remedy that he or she seeks below. If the 
remedy is going to be the same no matter how many issues we 
decide, i.e., a remand, we just simply, to preserve that 
judicial economy, send the case back on remand.
    Mr. Lamborn. Okay. Thank you.
    Mr. Hall. Thank you, Mr. Lamborn.
    And the Chair will now recognize Mr. Rodriguez.
    Mr. Rodriguez. Thank you, Mr. Chairman, and let me thank 
you for allowing me to comment and also for conducting this 
hearing.
    With some 1,000 World War II veterans dying daily, do you 
prioritize cases based on the severity of their situation or 
anything such as that?
    Judge Greene. We have no specific rule for expediting a 
case other than the veteran showing cause because of extreme 
severe health or imminent death to expedite the case.
    Now, informally, as a Board of Judges, we have agreed that 
each chambers will certainly consider cases as they see fit. 
And as a result, I would suspect that there are many occasions 
where if a particular case looks as though it has the 
characteristics that you describe, that a judge certainly has 
the option to bring that case forward.
    Mr. Rodriguez. Do you think that there should be concern, 
because my understanding is that when the case goes before 
them, where they might spend 2 or 3 years fighting it and then 
when the person dies, the appeals and the process has to start 
from scratch?
    Judge Greene. The counsel representing the veteran, and in 
most cases, even though there is a large number of veterans not 
represented at the time they file the appeal, by the time the 
case gets to chambers, many of those veterans are indeed 
represented. And counsel certainly has the option of notifying 
the Court with a motion to expedite those cases for whatever 
reason. And looking at that reason, if there is good cause 
shown, the judge certainly can expedite the case.
    Mr. Rodriguez. Okay. It is based on the judge making the 
determination?
    Judge Greene. That is right.
    Mr. Rodriguez. Okay. Let me ask you, based on judges, and 
the regions, we have heard reports that in certain areas, they 
are able to get certain benefits much easier under certain 
conditions than in other areas. Do we have any studies that 
reflect this, that there might be some disparities between 
regions?
    Judge Greene. Well, that is certainly an area that we never 
get to address. One of the purposes of the Court is to promote 
uniformity across the system.
    Mr. Rodriguez. I would hope so. So are you aware of any 
disparities?
    Judge Greene. I am not aware of any.
    Mr. Rodriguez. Has anybody conducted an assessment 
regarding how many are on the waiting list that might be 
African-Americans or from a certain region more so than others?
    Judge Greene. I am sure that the Department of Veterans 
Affairs has that information and that they would be able to 
provide that to you.
    Mr. Rodriguez. Okay. Maybe we can get a GAO study to look 
at the waiting list to see the disparities in ethnicity and 
race as well as region and the type of benefits that they 
appeal for, Mr. Chairman.
    Judge Greene. If I may, I might add, too, that if there was 
such an incident, the Court does exercise writ of mandamus 
authority. And if an individual thinks that because of 
ethnicity or what have you that they are not getting a fair 
shake at a Regional Office and that the Secretary is acting 
unlawfully or withholding action that is unreasonable, they can 
seek relief from the Court to compel the Secretary to act 
accordingly.
    Mr. Rodriguez. It just makes sense in some areas that there 
might be some judges who are tougher than others and they might 
feel that they get, just like the regular courts, might get a 
better chance in one area or another. I know I have heard those 
criticisms and I just want to make sure. Maybe we can do an 
assessment of that and make sure that that is not occurring.
    I would hope that you would do that on your own, that you, 
yourselves, would check and balance how you operate and which 
ones. You do not do that?
    Judge Greene. No, no. No, sir. That has all been done 
already. All the adjudication on the claim has been done before 
it gets to us.
    Mr. Rodriguez. Okay, so nobody looks across the board in 
terms of possible disparities occur in terms of benefits?
    Judge Greene. No.
    Mr. Rodriguez. Okay, and no one looks across the board to 
see if prioritizing those individuals whose life expectancy is 
just a few years and that is just done by the individual?
    Judge Greene. Oh, no. Well, a judge does not know what case 
he or she is going to receive until it is assigned to them by 
the public office. When they conduct the screening, they can 
certainly determine if a case is from the greatest generation.
    Mr. Rodriguez. You do not know if they are screened for 
that purpose and prioritized for those or for some other 
purpose?
    Judge Greene. They are not, not at the Court.
    Mr. Rodriguez. Okay.
    Judge Greene. They may be at VA.
    Mr. Rodriguez. If I can just ask one open-ended question. 
What would be your recommendations as it is getting worse in 
terms of the numbers as we do have some 700,000 on the waiting 
list?
    Judge Greene. To expedite the 700,000 cases?
    Mr. Rodriguez. Yeah.
    Judge Greene. Well, I have not commented on how VA should 
do its business because we have to review how they have done 
their business. But I think it is very critical that when we 
provide legal precedents involving the adjudication of claims 
that that law has to be disseminated throughout all the 54 
Regional Offices so that every Regional Office adjudicator is 
working on the same sheet of music. And if they do that, that 
is the first step, and then you have got to get the regulations 
easier to read and easier developed so that the adjudications 
do flow uniformly and fairly.
    Mr. Rodriguez. Thank you very much. I ran out of time. 
Thank you.
    Mr. Hall. Thank you, Mr. Rodriguez, and Chief Judge Greene, 
both of you for your colloquy and your suggestions.
    The Chair will now recognize the Honorable Mr. Hare.
    Mr. Hare. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    Judge, I am sorry I got in a little bit late, so I did not 
get to hear all of your testimony. I just have a couple 
questions for you.
    Why do you think the Court is seeing such a dramatic 
increase in its caseload, and do you think this is due to the 
returning servicemen and women in Iraq and Afghanistan? Do you 
believe the Court is prepared to handle expected increases from 
these recently deployed troops?
    Judge Greene. As I indicated in my opening remarks, it has 
not really come as a huge surprise, at least at the Court, that 
these numbers are what they are. If you look at the number of 
decisions that the Board of Veterans' Appeals renders each 
year, you see that their total denials of a case amounts to in 
the numbers of twelve, thirteen thousand. Those twelve or 
thirteen thousand cases are potentially appeals to the Court of 
Appeals for Veterans Claims.
    And as a result, we feel very fortunate that with our seven 
judges that we are not receiving those thirteen thousand. And 
you add on to that the number of appeals that just because a 
veteran may have been awarded a benefit but is not happy with 
the rating or not happy with the effective date, they can still 
appeal that case to our Court. So the numbers of appeals from 
the Board or the number of decisions produced by the Board 
creates a potentially huge bubble.
    The involvement of attorneys certainly provides better 
access to the courts for the veterans. And we have a very 
mature veterans' bar association at this point. And as a 
result, veterans are finding their way to judicial review of 
decisions made by VA.
    As to the question about the current Iraq veterans and the 
Afghanistan veterans, I am happy to say that we do not receive 
any appeals from them at this time. It is just too soon. In our 
process, those cases have to go to the Regional Office and to 
the Board of Veterans' Appeals before ever coming to the Court.
    I would hope that at least from what we are seeing that 
many of those claims would not be denied. There are, of course, 
cases such as Post Traumatic Stress Disorder (PTSD) claims that 
we anticipate receiving somewhere down the road, but it is far 
too soon now for us to see appeals from veterans of Iraq or 
Afghanistan.
    Mr. Hare. Just one last thing, I apologize if you mentioned 
this. Is there an average time that the claim takes from the 
time it gets to you until it is decided or adjudicated?
    Judge Greene. If I recall, I think in my annual report, we 
had something like 359 days, 351 days was the time from filing 
to disposition. That was a median time.
    Mr. Hare. I am sorry?
    Judge Greene. That was median, a median time. Now, because 
we are an appellate court, there are certain appellate steps 
that have to be taken before a judge can ever begin to decide a 
case.
    At our Court, because we have no record of trial at the 
very beginning, the rules of Court allow 254 days to prepare a 
case for sending it to chambers. Last year, we had 13,000 
requests for extensions of time of that 254 days. All of them, 
as I recall, were granted because if we do not grant them, the 
end result is that if the appellant fails to get something in 
on time, the appellant veteran, the veteran is thrown out of 
court.
    Mr. Hare. Excuse me. Is this the veteran that is requesting 
additional time?
    Judge Greene. Both sides, veterans and the general counsel.
    Mr. Hare. Okay. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Hall. Thank you, Mr. Hare.
    I think since we have two more panels to go and you have 
been very forthcoming and offered to submit further answers and 
more detail in writing, Chief Judge Greene, then we will thank 
you for your testimony, and thank your staff for being here 
with you, and excuse you.
    Judge Greene. Thank you.
    Mr. Hall. You probably have a full day's work ahead, so 
enjoy.
    Judge Greene. Thank you very much.
    Mr. Hall. Thanks again.
    We will now invite Panel Two to join us at the witness 
table, Bart Stichman, the Joint Executive Director of National 
Veterans Legal Services; Robert Chisholm, Past President of the 
National Organization of Veterans' Advocates; and Brian 
Lawrence, Assistant National Legislative Director of Disabled 
American Veterans.

  STATEMENTS OF BARTON F. STICHMAN, JOINT EXECUTIVE DIRECTOR, 
NATIONAL VETERANS LEGAL SERVICES; ROBERT VINCENT CHISHOLM, PAST 
 PRESIDENT, NATIONAL ORGANIZATION OF VETERANS' ADVOCATES; AND 
   BRIAN LAWRENCE, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, 
                   DISABLED AMERICAN VETERANS

                STATEMENT OF BARTON F. STICHMAN

    Mr. Stichman. Thank you, Mr. Chairman. My name is Bart 
Stichman, Co-Director of National Veterans Legal Services 
Program.
    I am pleased to present testimony today on behalf of the 
National Veterans Legal Services Program and I do so from the 
perspective of veterans and their survivors who appeal their 
cases to the Veterans Court.
    We commend the Chief Judge for the steps he and the other 
judges and staff of the Court have taken to try to speed up the 
process from filing an appeal to decision.
    There are, however, four improvements that we suggest in 
order to either eliminate or minimize the ``hamster wheel'' 
situation, the phenomenon that too many veterans face in which 
the Court does not issue a final decision on the claim, but 
rather remands the case back to the Board of Veterans' Appeals 
which then may remand it back to the Regional Office, and cases 
sometimes bounce back and forth a number of times and go back 
to the Court a second time.
    And one of the reasons for this problem is a policy the 
Court adopted in the case called Best and Mahl. I think the 
Chairman referred to it and other Congressmen have this 
morning. That policy is to have piecemeal adjudication at the 
Veterans Court.
    And what I mean by that is that the veteran briefs a number 
of different legal errors that the veteran says the Board of 
Veterans' Appeals made. The VA files a brief contesting those 
allegations of error. Under Best and Mahl, if the Court decides 
that one of the allegations of error by the veteran is correct 
and that error deserves a remand to correct the error, it will 
not address the other allegations of error. The Court will 
allow the case to go back with those errors unresolved because 
those errors would not lead to a reversal and a grant of 
benefits even if the Court were to include there was error.
    So the Court avoids deciding all the issues. The problem is 
what happens thereafter when the Board corrects the one error 
found by the Court, but it does not change its position on the 
other grounds for error that the veteran had alleged and the 
Court did not resolve. So it makes the same error over again 
because the Court did not require it to change what it did in 
that regard.
    So what often happens is if the claim is denied after 
correction of the one error identified by the Court, then the 
veteran is back in the same position, appeals again to the 
Veterans Court, briefs the exact same legal issues, and we have 
the ``hamster wheel'' phenomenon playing again. That, I think, 
contributes to injustice at the Veterans Court and it is an 
unfortunate policy.
    Second is the Court's reluctance to overturn erroneous 
Board of Veterans' Appeals findings of fact. The Board is 
responsible for weighing conflicting evidence on critical 
points in the case and resolving reasonable doubt in favor of 
the veteran. Sometimes the Board does not do that. It resolves 
conflicting evidence. But, even though the evidence weighs in 
the veteran's favor, it decides that the claim should be 
denied. The veteran appeals to the Court.
    Congress has told the Court you can overturn the Board's 
findings of fact only if you decide it is clearly erroneous. 
That is the statutory phrase. The Court interprets that phrase 
very extremely. It will only overturn a Board finding in 
extreme circumstances.
    So if the Court feels that the finding of fact is probably 
wrong, but not rising to the level of clearly erroneous, it 
will send the case back for a better explanation. Hence, the 
``hamster wheel'' again.
    A third contributor to the ``hamster wheel'' is another 
phenomenon that has been talked about earlier this morning and 
that is the fact that if the veteran or survivor who appeals to 
the Court dies while the appeal is pending at the Court, the 
claim dies with the claimant and a qualified survivor can only 
pursue the benefits that the veteran who just died was seeking 
by starting at square one and filing a claim with the Regional 
Office for those benefits.
    And so the years of the process come to a halt and the 
person has to start from square one. We presented testimony 
last month before this Subcommittee about that problem and we 
think there is a legislative solution to allow the qualified 
survivor to substitute for the person that just died and 
continue the appeal on at the Court without requiring that 
person to start at square one.
    Finally, our testimony talks about another injustice that 
was inadvertently created by Congress when it enacted the 
``Veterans Judicial Review Act'' in 1988. Through oversight, 
Congress did not provide either of the Courts that it sends 
cases to, the Court of Appeals for Veterans Claims or the 
Federal Circuit, with authority to certify a case as a class 
action. Prior to that, veterans could file a case in U.S. 
District Court which operates under class action rules.
    But when Congress transferred jurisdiction from District 
Courts to the Veterans Court and the Federal Circuit, it did 
not provide for class actions. It was silent on the subject and 
both Courts as a result have said they do not have class action 
authority. That results in both injustice and inefficiency in 
the process.
    And we discuss in our testimony a case study, a real case 
study of a battle that is currently going on between Navy 
veterans who served in the waters offshore Vietnam and the VA. 
Thousands of Navy Blue Water Veterans, they are called, who 
served offshore, but did not set foot on land in Vietnam, have 
been denied benefits by the VA and that battle has been going 
on for 5 years in a way that promotes inefficiency. And if a 
class action mechanism had been in force, both the VA and 
claimants would have been better served.
    And just to briefly discuss some of the facts involved, in 
2003, a widow named Andrea Johnson applied for death benefits 
due to the fact her husband died of cancer which she said was 
caused by an Agent Orange related disease. The VA said you are 
not entitled because your husband did not set foot on land in 
Vietnam, a rule the VA adopted in 2002.
    She briefed that case before the Veterans Court in 2003. 
The Court scheduled that case for oral argument and convened a 
panel of three judges. Six days before oral argument was 
scheduled to take place, the VA General Counsel made the widow 
an offer she could not refuse. They agreed to pay her all death 
benefits retroactive to the date the veteran died. She could 
not legally recover any more money. So she, of course, accepted 
that offer.
    When she accepted that offer, the case was dismissed, the 
panel was disbanded, and the oral argument was canceled. She 
got her money, but the VA continued for the next 3 years, 
because no precedential decision had been issued, to deny 
similarly situated veterans and survivors' claims based on the 
same fact pattern, because the veteran did not set foot on 
land.
    Finally, in August 2006, the Veterans Court ruled, in a 
different case called Haas filed by a Navy commander who 
appealed all the way to the Court, that the VA's set-foot-on-
land rule promulgated in 2002 was illegal.
    Now, the VA has appealed that to the Federal Circuit. They 
will either win or they will lose. If they lose, then Commander 
Haas and those people with pending claims now will get 
benefits. But all those people who were denied in the prior 
years after Andrea Johnson's case was mooted out because they 
bought her off, those people will never get benefits.
    They will never get benefits because the VA is not required 
to identify them and tell them about the new Court decision. 
And even if they were required to tell them about the new Court 
decision, the rules are that that decision, since it is final, 
can only be overturned based on clear and unmistakable error 
and the VA would find that that is not clear and unmistakable 
error.
    All that is due to the fact that there are no class action 
rules at either the Federal Circuit and the Veterans Court. 
That is an area that Congress should look into.
    [The statement of Mr. Stichman appears on page 39.]
    Mr. Hall. Thank you, Mr. Stichman. Do you want to summarize 
or was that your summary right there?
    Mr. Stichman. I think I have covered amply the four 
recommendations.
    Mr. Hall. Thank you. Your full statement is in the record.
    Mr. Stichman. Yes. Thank you.
    Mr. Hall. We will get back to you with questions.
    The Chair will now recognize Robert Chisholm, the Past 
President of the National Organization of Veterans' Advocates.

              STATEMENT OF ROBERT VINCENT CHISHOLM

    Mr. Chisholm. Good morning, Mr. Chairman, and thank you for 
inviting me to testify this morning on behalf of the National 
Organization of Veterans' Advocates. I am just going to jump 
right in with my recommendations and get right to it.
    The first issue that sort of echoes what Mr. Stichman just 
said, one way to get veterans off the ``hamster wheel'' is to 
maybe consider changing the Court's scope of review and 
allowing them to engage in de novo fact finding.
    Since the advent of judicial review, decisions from the 
Board of Veterans' Appeals in 1988, the CAVC has remanded 
roughly 65 to 75 percent of the cases. And as we have discussed 
earlier, this puts the veteran back on the ``hamster wheel'' 
and final decisions are hard to come by.
    Many of these cases are remanded from the CAVC to the Board 
because of inadequate findings and conclusions. Under the 
present statutory scheme as set forth at 38 USC 7261(c), the 
CAVC is expressly forbidden from engaging in fact finding, de 
novo fact finding of an adverse determination by the Board.
    Under such a scheme, if they were permitted to, they would 
be required to apply the benefit of the doubt which is codified 
at 38 USC 5107(b). The net result of such an amendment would be 
fewer cases remanded from the Court to the Board due to 
inadequate findings.
    Many of these veterans are elderly and oftentimes do not 
survive the remand process. Permitting the Court to engage in 
de novo fact finding will provide veterans with a resolution 
they deserve during their lifetime. And a model for this could 
be the Courts of Criminal Appeals for the military under title 
10, U.S.C. Sec. 866(c) where the courts are permitted to do 
some fact finding.
    I recently represented a veteran who went to the court four 
times. Four times the case was remanded due to inadequate 
findings by the Board. I finally got the veteran benefits after 
12 years of litigation. They should not have to endure that 
kind of process.
    The second issue we also talked about this morning is 
permitting veterans the right to substitution in court so that 
if a veteran dies while the claim is in court, his next of kin 
or estate should be allowed to substitute and continue that 
appeal in court and not go all the way back to the beginning 
and start the process anew.
    The third area I would like to touch on is the issue of 
annual reports by the Court of Appeals for Veterans Claims. I 
think the Court should be required, and I outline a number of 
different things, to report annually. And they do report some 
of this data, but to me, we do not have concrete data in one 
specific area, the median time it takes from the date a case is 
fully briefed until a decision is reached. We have data on the 
time it takes for the initial process until the case is fully 
briefed. But once it is fully briefed until the case is 
actually decided by a judge, I think Congress should ask for 
that data as well.
    The next issue has also been touched upon and that is the 
increasing number of appeals being filed. We have not yet seen 
in the Court the OIF and OEF veterans because those cases are 
still down at the agency. None of them have actually made it to 
the Court to my knowledge. Nevertheless, in 2005, the caseload 
jumped by a third from about 2,400 to 3,600, 3,700.
    NOVA is concerned in the future as this caseload increases 
Congress should be proactive and think about expanding the 
number of judges because at some point, even with the recalled 
judges, it will be very difficult to meet the number of appeals 
and keep the decisions on the same pace that they are being 
made presently.
    Our suggestion is that if the notice of appeals reach 5,000 
or more, you may want to consider adding two additional judges 
at that point to the Court.
    The last issue I will touch upon is the issue of the 
jurisdiction of the Federal Circuit Court of Appeals. This is 
the most critical piece that I would like to speak to this 
morning because the Federal Circuit's jurisdiction over this 
appeals process is a limited one and it only governs appeals 
regarding regulatory interpretation or statutory 
interpretation.
    Many veterans appeal to the Federal Circuit, but their 
cases are dismissed because it does not fall within that narrow 
jurisdictional window. In NOVA's view, the jurisdiction of the 
Federal Circuit is critical to veterans' cases and should not 
be contracted or eliminated. And at some point in the future, 
it may be necessary to enlarge it.
    Chairman Hall, you recently asked about the issue of 
prejudicial error. On, I believe it was, May 16th, the Federal 
Circuit issued a landmark decision called Sanders which more 
broadly interpreted the Rule of Prejudicial Error in favor of 
veterans and overturned part of the Court's decision in a case 
called Mayfield and acknowledged the beneficial system in that 
the burden of proof on prejudice should not be on the veteran, 
but rather should be on the VA in those instances.
    I would like to thank you again for permitting me to 
testify this morning and I would be pleased to answer any 
questions you may have.
    [The statement of Mr. Chisholm appears on page 44.]
    Mr. Hall. Thank you, Mr. Chisholm.
    We will now recognize Mr. Brian Lawrence, the Assistant 
National Legislative Director for Disabled American Veterans 
for 5 minutes. Your full remarks will be entered into the 
record.

                  STATEMENT OF BRIAN LAWRENCE

    Mr. Lawrence. Thank you, Mr. Chairman and Members of the 
Subcommittee. On behalf of the Disabled American Veterans, I am 
pleased to present our views on challenges facing the U.S. 
Court of Appeals for Veterans Claims.
    The greatest challenge facing the Court is the backlog of 
appeals. A veteran with an appeal before the Court has already 
been through a lengthy VA claims process and an even longer 
appeal process at the Board of Veterans' Appeals. It can take 
years for appeals to reach the Court. Because a significant 
number of disabled veterans are elderly and in poor health, 
many do not live long enough for their appeals to be resolved. 
Those who do survive are understandably discouraged. Veterans 
deserve to have issues resolved in a reasonable amount of time.
    Last summer, Senator Craig noted that the accumulation of 
appeals at the Court was unacceptable. Hearings were held to 
address the problem and recalling retired judges was an agreed 
upon solution. As Senator Craig noted last January, the 
increase to the Court staff had a positive effect and 
productivity is high.
    The DAV did and does support recalling retired judges as a 
partial remedy to the backlog. However, it does not address a 
primary cause for accumulation of cases at the Court.
    Over the years, the Court has shown a reluctance to reverse 
errors by the Board. Rather, there is a propensity to remand 
cases to the Board based on admission of error by the 
Secretary. Once this occurs, the Court will not review other 
alleged errors raised by an appellant.
    Such remands leave issues unresolved and require appellants 
to invest many more months and perhaps years to obtain a 
decision that should have come from the Court on the initial 
appeal. As a result, many cases before the Court are there for 
a second, third, or fourth time.
    In addition to prolonging the appeal process, the Court's 
reluctance to reverse Board decisions provides incentive for 
the VA to avoid settling appeals before they reach the Court. 
If reversals were more frequent, we believe the VA would be 
discouraged from standing firm on decisions that are likely to 
be overturned.
    We also believe that if the Court were required to address 
all assignments of error presented by an appellant, it would 
help break the perpetual cycle of remand and appeal.
    To provide Congress with an accurate measure of the Court's 
performance, the Court should submit an annual report that 
includes three categories: One, the number of Board decisions 
affirmed; two, number of dispositions based on joint motion for 
remand and settlement; and, number three, the number of 
dispositions reversed or remanded by a judge's decision.
    Actions that fall under category two are of an 
administrative nature that are generally accomplished by the 
Clerk of the Court. Categories one and three must be 
accomplished by the Court's judges so presenting the 
information in this format would give Congress a clearer 
picture of the Court's accomplishments. The annual report 
should also include the number of memorandum decisions made by 
each judge.
    Finally, the DAV supports the establishment of a dedicated 
veterans' courthouse and justice center. The space currently 
leased by the Court is inadequate for the level of staff 
necessary to complete its caseload.
    During our most recent national convention, DAV Members 
voted to again adopt a longstanding resolution calling for the 
Court to have its own facility. This resolution envisions an 
architectural design and location reflective of our Nation's 
respect and gratitude for military veterans.
    Rather than designating the office building where the Court 
currently leases space as the permanent facility, we encourage 
the Subcommittee to support the construction of a new veterans' 
courthouse and justice center that features a design and 
location worthy of its status.
    Mr. Chairman, this concludes my statement. I will be happy 
to answer any questions you may have. Thank you.
    [The statement of Mr. Lawrence appears on page 47.]
    Mr. Hall. Thank you, Mr. Lawrence, and thank you to all of 
our panelists.
    Mr. Stichman, in your statement, you said that many 
veterans have been to court for the same issue multiple times. 
Do you think there is a way to help get these veterans off the 
so-called ``hamster wheel'' and smooth the appeals process to 
alleviate problems such as the one stated above?
    Mr. Stichman. Yes. And we have made a number of 
recommendations in our testimony. One, Congress can amend, I 
think it is 7261, the section in Title 38 that talks about the 
Court's scope of review and require the Court to address all 
allegations of error made by the veteran appellant if it is 
going to affect the proceedings on remand so that all the 
briefed issues are resolved. And that will help bring things to 
a close even if the case is being sent back. It is much less 
likely the case will come back up to the Court.
    Second, I think all the panelists on this panel have talked 
about the problem of the Court not overturning BVA findings 
that are unfavorable to the veteran when the evidence supports 
a different result because the Court is very reluctant to 
reverse. Congress should amend the Court's scope of review in 
that same statutory provision, to allow the Court not to show 
such extreme deference to the Board findings.
    We have talked about, three, the problem of when claimants 
die while their appeal is pending before the Court, the Court 
dismisses the appeal and the surviving heirs have to start from 
square one at the Regional Office.
    And then finally, I talked about the class action problem 
where there is no class action mechanism currently in either of 
the two Federal courts with jurisdiction.
    Mr. Hall. Thank you.
    Could you elaborate a little bit more on the e-filing 
system and whether you think it will significantly alleviate 
the backlog issues?
    Mr. Stichman. At the Court, it should help speed the 
process, a combination of the e-filing system and having a 
joint appendix which the Court has proposed now in its rules. 
That will lower the amount of time it takes prior to the case 
reaching the judge.
    Now, that is not going to affect how long the judge takes 
to decide the claim, but it will shorten the process up to the 
point that the case is sent to the judge.
    Mr. Hall. Thank you.
    I would just quickly ask all three of you if you agree on 
allowing de novo evidence to be considered by the Court. Would 
that seem like a positive step?
    Mr. Stichman. Well, I know that both, I think it is fair to 
say, Mr. Chisholm for NOVA and DAV, is that fair to say that 
you support de novo review?
    Mr. Lawrence. Yes.
    Mr. Stichman. And I want to think about going to the full 
extent of de novo review of findings of fact and think about 
that a little further. But I think we all support a change in 
the scope so the Court does not have to show such extreme 
deference.
    Mr. Hall. Right. Okay. I am just looking for the most 
consensus possible.
    Another question would be, all of you, if I recall 
correctly, would support qualified surviving Members being able 
to pick up an appeal without having it go back to square one?
    Mr. Chisholm. Absolutely.
    Mr. Lawrence. Yes, sir, Mr. Chairman. DAV recently 
testified in support of that issue before the Veterans 
Disability Benefits Commission. So, yes, I would reiterate the 
position of my panelists in that regard.
    Mr. Hall. Mr. Stichman?
    Mr. Stichman. Yes.
    Mr. Hall. You agree with that?
    Mr. Stichman. I agree with that.
    Mr. Hall. I think we are hearing everybody say that we need 
more judges and I guess that is an obvious part of the 
solution.
    With regard to the building of a new Court facility, Mr. 
Lawrence, I am wondering, given the time that it takes for a 
building to be designed and built, is there a concern that that 
may further delay the expansion of space for staff and judges, 
that perhaps we could get by using existing structures?
    Mr. Lawrence. Well, I think in the long term, it is the 
best solution. Perhaps they can expand the spaces that they are 
leasing now until the design and the construction of the 
courthouse is complete. But, again, it is going to provide the 
long-term solution that best serves the needs of the 
courthouse.
    Mr. Hall. Thank you.
    I have used my 5 minutes. I will recognize Ranking Member 
Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    Mr. Stichman, I asked Judge Greene a question earlier about 
the ``hamster wheel'' phenomenon and he gave an answer. And I 
would just like to see if you had any followup or commentary on 
his answer to my question.
    Mr. Stichman. He referred to one situation where the Court 
remanded a lot of cases when the ``Veterans Claims Assistance 
Act'' went into effect. But this problem transcends that one-
time event. It is a continuing problem. It does not deal just 
with cases involving the ``Veterans Claims Assistance Act.''
    Any group of errors that the veteran alleges that would 
result not in a reversal, but rather further proceedings to 
correct the errors is subject to this policy of piecemeal 
adjudication. It does not matter what the issues are, whether 
it is the ``Veterans Claims Assistance Act'' he referred to or 
not.
    And they have decided as a matter of policy in these 
cases--they are not required to have this policy--but they have 
decided as a matter of policy to get rid of the case quickly if 
they can resolve--if they see one error, they do not have to 
spend the time on the others. And I think that is myopic. I do 
not think that helps veterans in the long run.
    Mr. Lamborn. Okay. Thank you.
    And, Mr. Chisholm, a question for you. There are a number 
of proposals out on the table. You have made several. If you 
had to prioritize and pick just one out, what do you think 
would be the highest priority?
    Mr. Chisholm. I think the highest priority as you heard 
here from the panel is changing the scope of review by the 
Court and not to give such deference to the Board's findings. 
And whether it is my proposal for de novo fact finding or what 
Mr. Stichman is arguing for, giving less deference, I think it 
has to be tweaked in some fashion so that the veterans can get 
better finality in Court.
    Mr. Lamborn. Thank you.
    Mr. Hall. Thank you, Mr. Lamborn.
    Mr. Rodriguez?
    Mr. Rodriguez. Let me go back to my initial questions that 
I asked of the previous panel. I really believe, I think you 
have answered my question, because my feeling back home was 
that they were just waiting for them to pass away and that was 
it so they would not have to deal with it, which is 
unfortunate.
    Should we look at prioritizing some of those cases? And 
hopefully if we change that, because I really feel strongly 
that if we change that and maybe even put a penalty, when we 
have not acted on some of those cases.
    I just want to get your feedback on whether we should 
prioritize those individuals. I just mentioned the reasons that 
they are in pretty bad shape, or they are going to pass away. 
Should there be other reasons to prioritize?
    Mr. Chisholm. There is a rule in the Court and if you are 
representing a veteran and the veteran is seriously ill and 
that is specifically set forth in the rule and you submit a 
doctor's report saying that the veteran is seriously ill, the 
Court will expedite in that situation.
    Unfortunately, if the veteran is 85 or 86 or 90 even and is 
in fairly good health, that veteran does not get expeditious 
treatment in Court unless they have a serious illness. And 
under those circumstances, you know, you could amend the 
statute to allow for prioritization based on age. At the VA 
level, that age is 75 years old, they will expedite the case.
    Mr. Rodriguez. If, for example, the person does pass away, 
what kind of benefits do the survivors get?
    Mr. Chisholm. There are two kinds of benefits that are 
potentially available. The veterans' surviving spouse or 
dependent child steps in the shoes on what they call an accrued 
claim of the benefits that were at stake at the time the 
veteran died. But they have to go all the way back to the 
Regional Office to file for that.
    In addition, if the veteran died due to a service-related 
injury, then they would be eligible for dependency and 
indemnity compensation.
    Mr. Rodriguez. Most of them would not be that with the 
exception of the spouse?
    Mr. Chisholm. Yes. That would be for the spouse or child 
only, right.
    Mr. Rodriguez. Okay. The other question that I had is 
whether there is discrimination that occurs from region to 
region in terms of findings on benefits.
    Mr. Stichman. Well, there were newspaper articles and I 
think a GAO study that showed that in PTSD cases there was a 
big difference in the success rate at different VA Regional 
Offices. I think that came out in the last 2 or 3 years. But 
there has always been some differences among Regional Offices.
    Mr. Rodriguez. Do you know of any studies that have been 
done or GAO assessments that have been done of those people 
that have been denied, those that have not, and percentagewise 
based on individual judges or regions?
    Mr. Stichman. Outside of that one study, that is one 
situation. I do not know off the top of my head of others.
    Mr. Rodriguez. Okay, because I can see where some people 
have a different perspective, especially if they have been in 
the military, when it comes to posttraumatic stress disorders 
or those mental health problems.
    I saw a number, and I do not know how accurate this is, 
that some 5,000 soldiers commit suicide every year. What was it 
with the VA, two or three? I do not have that. That is a pretty 
substantial number. Have there been any cases that have 
resulted from suicides?
    Mr. Stichman. I know there are cases where the survivors 
file for death benefits because the veteran had a mental 
disorder related to service that led to the suicide. Those are 
difficult cases to win. We have one right now that is in the 
Federal Circuit. We lost it at the Veterans Court. But people 
do file claims based on the allegation that the suicide was 
related to the mental disorder that they got as a result of 
service.
    Mr. Rodriguez. Now I am going to do something personal. I 
have a case of a soldier serving in Iraq. Supposedly there are 
some problems with documents, and she is not a veteran yet 
because it was still active. First it was said that she 
accidentally got killed, but now they claim suicide which means 
her parents do not get any benefits. They have been chastised 
by the veterans organizations. I am getting individual here.
    What do you suggest, as a Congressman, I can do to help 
clear the air because she might have committed suicide, she 
might have not? I do not know.
    Mr. Stichman. I would refer them to a good lawyer.
    Mr. Rodriguez. Okay. They do not have the resources 
unfortunately.
    Mr. Lawrence. Mr. Rodriguez, I would be happy to speak with 
you more specifically about that case following the hearing. 
And I am sure we can have one of our DAV national service reps 
in that area----
    Mr. Rodriguez. I need some help with that. It is a young 
lady. I would appreciate that.
    Mr. Lawrence. We would be delighted to help in any way we 
can.
    Mr. Rodriguez. Thank you very much.
    Mr. Hall. Thank you, Mr. Lawrence and Congressman.
    The Chair will now recognize Mr. Hare.
    Mr. Hare. Thank you, Mr. Chairman.
    Let me first of all thank all three of you for your service 
and help to our veterans. Obviously they need all the help they 
can get.
    I said the other day when the Secretary was here, it just 
seems to me, and I am still trying to figure out why we always 
seem to err on the side of the VA and not the veteran. It is so 
sad, this whole ``hamster wheel'' that there are people who 
have given everything they had and now they are on the 
``hamster wheel''. What a wonderful way of thanking them for 
their service. I just think that we can do much better.
    I am interested, Mr. Chisholm. You were talking about for 
surviving spouses, when somebody dies in the middle, how the 
claimant dies and they have to start all over again and have 
been in the system 5 to 7 years. How much additional time then 
is added for that survivor to be able to get through this 
process?
    Mr. Chisholm. Well, since they step into the shoes of the 
veteran and the accrued claim, you can figure that the VA is 
going to deny the claim all the way back up the line again for 
the same reasons they denied the veteran the first time. So 
they are going to go right back through 5, 6, 7 years.
    And I have had situations where I represented the veteran. 
Veteran dies. We go back, file the claim for the surviving 
widow, and then the widow dies in the process coming back 
through. And it is just not fair.
    Mr. Hare. Just from your perspective, maybe all three of 
you, why is it that the VA seems to be so cantankerous about 
this whole issue? What is it that is motivating them to make 
this veteran have to continue to do this process from your 
perspective? Is it just bureaucracy? I don't get it.
    I will be honest with you. I am a freshman Member here. But 
it would seem to me that if a person goes through this process 
and they file a claim, I believe that that veteran is honest. 
When we file our taxes we are not assumed to be cheaters, and 
there are ways of auditing our taxes. I do not understand the 
logic. Is there any here? If you folks can help me out to 
understand this a little bit.
    Mr. Lawrence. The DAV has pointed out along with the other 
Independent Budget organizations that three things need to 
occur to help clear up the backlog within VA's claims process. 
They need to have a level of resources to have the number of 
employees to take on the caseload. Number two, they need to 
have adequate training. But, number three, they need to have 
accountability and there is a problem within the VA that if the 
people continually make poor decisions, there is not any 
accountability. There should be remedial training to make sure 
that they understand the laws and the regulations. And past 
that, if they are unable to perform in their job, they need to 
be put into a different position or removed from that 
decisionmaking position in some fashion. And that does not seem 
to happen.
    Mr. Chisholm. I think the other thing, if I could, that 
happens is that once a claim is made and denied, the VA has a 
tendency to continue that denial and it becomes very difficult 
to get them to reverse their position.
    Mr. Hare. Why is that?
    Mr. Chisholm. It is institutional in that respect.
    Mr. Stichman. Well, one problem I know is that there is a 
rush to judgment at the beginning of the VA process. The 
adjudicators are judged based on the number of cases they turn 
out and there is a great pressure on them to decide a case 
quickly before the evidence has been fully developed. They get 
work credits for deciding cases quickly regardless of whether 
all the evidence is there. And that, I think, is the beginning 
of the problem in the process. If they spent more time and did 
the case right in the first instance, then there would not be 
as many appeals as we have.
    I think it is a little bit of Congress' fault as well. 
There is such pressure that Congress puts on the VA to decide 
cases at the beginning in a quick period of time. There are 
statistics Congress calls for all the time, whether it will 
take the VA 154 days or 160 days to decide a claim. And so the 
situation now is the VA will send the claimant a letter saying 
you have 1 year to submit evidence to support your claim. But 
because of the pressure to decide cases quickly, they will 
decide it in 60 days. They will tell the claimant you still 
have the rest of that 1 year to submit the evidence, but we 
want to get this case out the door and they deny the claim. A 
lot of veterans give up at that point. And so I think the 
problem starts at the beginning.
    Mr. Hare. Thank you very much.
    I yield back.
    Mr. Hall. Thank you, Mr. Hare.
    I just wanted to ask one more question, if I may, before we 
excuse our panel, and that is of Mr. Chisholm. I want to ask 
you to elaborate on the statement in your written testimony 
about what you believe is the BVA's poor decision making, those 
were your words, and why you think this is having a profound 
effect on the CAVC.
    Mr. Chisholm. Well, first of all, the number of decisions 
that were actual denials has increased dramatically over the 
last few years by the Board and the overall number of decisions 
being made by the Board has also increased.
    But when I refer to poor decisionmaking, I am referring to 
the cases that are actually appealed to the Court and the Court 
is finding error at a rate of 65, 75 percent. And those are 
only the cases that are being appealed. I imagine across the 
board to the extent that a veteran's claim is denied by the 
Board, if all those cases were appealed, the numbers would not 
change dramatically.
    Many of those veterans are not represented by counsel down 
at the Board at this time, although the statute has been 
amended, and I think those veterans that do have the tenacity 
to keep the fight going have a better than 65, 75 chance of 
finding error and getting another shot at the case down below. 
So that is why I used the words poor decisionmaking by the 
Board.
    Mr. Hall. Thank you very much.
    I want to thank all three of our witnesses, Mr. Stichman, 
Mr. Chisholm, and Mr. Lawrence. We appreciate and are grateful 
for your testimony and your service to our veterans community. 
You are now excused.
    I would ask for our third panelists, the Honorable James P. 
Terry, Chairman of the Board of Veterans' Appeals, U.S. 
Department of Veterans Affairs, to come to the witness table 
along with Randy Campbell, Assistant General Counsel, 
Professional Staff Group IV, Veterans Court Appellate 
Litigation Group, Office of the General Counsel, U.S. 
Department of Veterans Affairs.
    Welcome to both of you, and we appreciate your patience in 
waiting to be in the third panel and for coming to give us your 
view and the benefit of your expertise and your experience.
    Mr. Terry, your statement, of course, will be entered into 
the written record, so you can use approximately 5 minutes and 
save that version of it. Thank you.

STATEMENT OF HON. JAMES P. TERRY, CHAIRMAN, BOARD OF VETERANS' 
 APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY 
 RANDY CAMPBELL, ASSISTANT GENERAL COUNSEL, PROFESSIONAL STAFF 
GROUP VII, VETERANS COURT APPELLATE LITIGATION GROUP, OFFICE OF 
    THE GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS

    Mr. Terry. Thank you very much, sir, and good morning.
    Mr. Hall. Good morning.
    Mr. Terry. I am happy to discuss with you and with Ranking 
Member Lamborn and Members of the Subcommittee and your staff 
the challenges facing the Court of Appeals for Veterans Claims. 
Certainly we have heard very interesting testimony this morning 
from the first two panels.
    With me today is R. Randall Campbell, Assistant General 
Counsel, Professional Staff Group VII of the Office of General 
Counsel. This is also known as the Veterans Court Appellate 
Litigation Group.
    Group VII is responsible for handling the administrative 
and legal matters involved in all litigation before the 
Veterans Court

and certainly, sir, that group has experienced firsthand 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 in 1989. For 
example, 10 years ago, sir, in 1997, the Court received 2,229 
cases. In fiscal year 2006, last year, last fiscal year, it 
received 3,729. Sir, this 3,729, of course, is less than 10 
percent last year of the cases we decided at the Board of 
Veterans' Appeals. We decided in excess of 39,000 last year and 
certainly this represents just one small part of those cases 
that we decided.
    So far this fiscal year, the Veterans Court is averaging in 
excess of the number of cases it received last year and I fully 
expect that caseload to continue to increase for a number of 
reasons.
    Firstly, we at the Board of Veterans' Appeals, Mr. 
Chairman, are doing our utmost to increase the number of final 
decisions we produce. As you know, the Veterans Benefit 
Administration, led by Admiral Cooper, decides in excess of 
750,000 cases a year. Of those, some 40,000 are appealed to our 
Board. A very small percentage, but a very large number.
    And certainly 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, not granted to the fullest extent the 
claimant is seeking.
    As I testified before the full Committee last year, two of 
the Board's most important initiatives are to contain and 
reduce the backlog and, two, to improve the timeliness and 
service to veterans by eliminating avoidable remands. And I am 
happy to report that we have had great success in working 
toward both goals.
    To illustrate, in fiscal year 2003, the Board issued 31,000 
appeals decisions with a remand rate of 42 percent. In fiscal 
year 2006, last fiscal year, we issued 39,076 decisions with a 
remand rate of 32.8 percent.
    And the reason this is incredibly important is that remands 
in our system are reflective of a number of things. The record 
is continually open and, consequently, until we kick a case out 
the door, until it is finally signed, that case can receive 
additional evidence. That judge who is hearing that case before 
our Board must take that evidence and unless there is a waiver 
signed by that veteran who is seeking that claim, that 
adjudication, it has to go back to the Regional Office for a 
complete readjudication.
    So it is important that you understand that this remand 
process is one that we have only limited control over. And 
while we certainly do aspire, if we feel we can adequately 
decide the claim with the new evidence and that it would not in 
any way prejudice the veteran, we will certainly ask for that 
waiver. But if, in fact, the veteran feels he would like to 
have it totally readjudicated, it goes back. And that happens 
in a great number of cases.
    Now, next year, of course, we expect in excess of 40,000 
appeals decisions by the end of that year, of fiscal year 2007, 
and we expect to maintain as low a remand rate as possible. 
Certainly in the same neighborhood as last year which is 
significantly lower than in prior years.
    Now, the result for the Court of Appeals for Veterans 
Claims, of course, over the past few years has been that with 
the significant increase in the number of Board decisions, 
there are going to be more cases that are final decisions that 
can be appealed to that Court.
    Now, as I mentioned to you, of the almost 40,000 decisions 
we decided last year, less than 10 percent were appealed to 
that Court.
    Now, other factors that may affect the increase in appeals 
to the Veterans Court are not so readily quantifiable, but 
there is certainly a heightened awareness among veterans of 
their access to the judicial process and we commend that. Our 
role is to try to serve veterans to the extent we possibly can.
    In addition, there have been changes in the jurisprudence 
that have influenced the caseload. The courts have determined 
that the Veterans Court possesses authority to consider 
petitions for extraordinary relief under the ``All Writs Act.'' 
This, of course, has increased their workload.
    And, 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 on 
timely appeals, that is appeals that would otherwise not be 
entertained, but, therefore, are entertained and, therefore, 
making them appeasable.
    Statutory changes as well 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 and that increased its 
total caseload by a good 20 percent, and that number has held.
    Similarly, enactment of the ``Veterans Claims Assistance 
Act'' has had an enormous impact on the workload of the Court.
    Finally, all of us involved in the adjudication system 
agree that cases have grown far 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 
and, as is increasingly common, the record on appeal may 
constitute thousands and thousands of pages.
    When there are changes in law during the pendency of an 
appeal, there will be dozens or even hundreds of cases that 
must be rebriefed, thereby delaying the ultimate decision in 
those cases, and that has to be taken into effect as well.
    With respect to potential remedies, I think 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, a very, very 
good result. It also reinforced its rules governing submission 
of pleadings.
    The Veterans Court is currently considering a fundamental 
change to the procedures for preparing the record on appeal, 
and this was mentioned by Mr. Stichman as well as Chief Judge 
Greene, with only those documents cited by the parties in their 
briefs to be required in cases where the veteran is 
represented. This is a very, very positive result in terms of 
the way in which the Court does business. And this will 
certainly speed the submission of cases to the Court for 
decision.
    Now, the Veterans Court is also studying the feasibility of 
electronic rather than paper filing and this, likewise, will 
have a significant impact.
    The Court, likewise, could better use certain tools it 
already has available to it. For example, the Veterans Court 
could adopt procedures that welcome summary motions in 
appropriate cases.
    In a recent judicial conference hosted by the Court, the 
Court carefully discussed this possibility and we are hopeful 
that the plan to revamp the preparation of the record on 
appeal, which is currently under study and active consideration 
by the Court, will facilitate the filing of these summary 
motions.
    The Veterans Court, we feel, could also be more open to the 
idea of consolidating cases or granting motions to stay cases 
where there is a commonality of issues.
    Now, these changes, as you know, Mr. Chairman, would affect 
cases that have already been filed. As noted earlier, however, 
the sheer number of potentially appealable decisions from the 
Board 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.
    We at VA are also doing our part. Group VII, for example, 
is carefully screening all cases that go to the Court of 
Appeals of Veterans Claims to assist that Court. We at the 
Board are ensuring that cases going forward are clean, well-
reasoned, and focused.
    I know you have heard some testimony to the contrary, but I 
think when you handle in excess of 40,000 cases a year as we 
are this year and you have less than 10 percent appealed to the 
Court despite the fact that these folks are represented by 
Veteran Service Organizations' representatives or attorneys, it 
tells you something about the decision making on our Board.
    Finally, I would like to note that the Veterans Court, to 
their credit, had their most productive year ever in 2006. They 
not only decided a total of 2,842 cases, but they adjudicated 
1,152 ``Equal Access to Justice Act'' applications, heard 22 
oral arguments while processing 382 appeals to the Federal 
Circuit.
    This concludes my testimony, Mr. Chairman. Mr. Campbell and 
I would be happy to respond to any questions you or your 
colleagues might have.
    [The statement of Mr. Terry appears on page 49.]
    Mr. Hall. Thank you very much, Mr. Terry, for your 
testimony and thank you for the work that you and your people 
are doing. We know that it is not an easy situation and that, 
as you have noted, it is expanding and getting more difficult 
and more challenging. We are here to help.
    I would like to ask you to explain the ``Equal Access to 
Justice'' payments. Roughly how much has the VA paid for these 
cases so far?
    Mr. Terry. I am going to turn to Randy Campbell. He 
probably has more of an insight into the EAJA process. That is 
not something that comes to our Board. That is something they 
deal with on appeals.
    So, Randy, maybe you can----
    Mr. Campbell. Yes. Chairman Hall, the ``Equal Access to 
Justice Act'' provides that where the veteran prevails in a 
case, and has an attorney, and the government was not 
substantially justified, then the Court is authorized to award 
reasonable attorney fees for the prosecution of that appeal.
    I could certainly provide the Subcommittee with figures for 
``Equal Access to Justice Act'' payments over the last few 
years. I do not have an accurate figure with me right now. But 
it is in the magnitude of several million dollars at this point 
given the number of cases that come to the Court.
    Mr. Hall. Do you recall last year what approximately that 
total was?
    Mr. Campbell. I think the amount claimed was between three 
and four million dollars, although I am working from memory. 
And like I say, I would prefer to provide more accurate figures 
once I can research it.
    Mr. Hall. Okay. That is fine, Mr. Campbell. We think it is 
in the neighborhood of over $5 million, but we would like to 
get a written response from you.
    [Subsequently, Mr. Campbell provided the following 
information for the record:]

        According to figures maintained by Professional Staff Group 
        VII, the total EAJA claimed by appellants in Fiscal Year 2006 
        $5,862,952.12, and the total actually paid by the Court was 
        $5,454,836.632. In Fiscal Year 2005, the total EAJA claimed by 
        appellants was $4,344,393.63, and the total EAJA actually paid 
        by the Court was $3,887,180.77. In Fiscal Year 2004, the total 
        EAJA claimed by appellants was $3,775,795.73, and the total 
        EAJA actually paid by the Court was $3,444,821.79.

    Mr. Campbell. It could very well be. And then, of course, 
the amount that is claimed is different than the amount that 
the Court actually pays out.
    Mr. Hall. Mr. Terry, in your testimony regarding fiscal 
year 2006 you discussed the 39,000 plus decisions with a remand 
rate of 32.8 percent. Can you estimate how long these cases 
have been waiting?
    Mr. Terry. We have a number of measures that we use to look 
at how well our case processing is progressing. For example, we 
have a cycle time, which is the amount of time it takes from 
the time the case is taken off the shelf until the time it is 
actually signed out of the Board. And that is right now at 150 
days. We would like it to be less, but that is the complete 
review of the case, the drafting of the decision, the review by 
senior attorneys and senior judges, and the time it is actually 
signed out. But that cycle time does not take into account the 
time it is with the Veteran Service Organizations in their 
review, but it is a time that actually the Board is spending 
with a case.
    Mr. Hall. Do you have any suggestions further than what are 
in your written remarks other than recalling retired judges, to 
help address the backlog of cases?
    Mr. Terry. Well, as I mentioned, there are a number of 
things that the Court is considering. Certainly, one, preparing 
the record in a more fundamentally sound way consistent with 
other courts of appeals, that is listing in the record just 
those matters which are cited in briefs is, I think, entirely 
appropriate. And hopefully the Court will adopt that. They are 
looking at it very carefully right now.
    Going to an electronic record as opposed to a paper record 
is going to help tremendously. I think that some of the things 
that some of the other panel members mentioned are very, very 
good changes.
    We likewise feel that the wife or the spouse or children 
should have the opportunity to substitute. That is going to 
take a change in law. Certainly I know the Secretary supports 
that and certainly I hope that will be forthcoming.
    We also, just for the Subcommittee's information, work very 
hard through regulations and statutory provisions which apply 
to our Board to advance on the docket any case in which there 
is either an age in excess of 75 years, infirmity of the 
individual, or if there is a financial hardship. And we have 
huge numbers of those applications by motion that come to the 
Board each day and we traditionally grant those.
    And that is 1 of the reasons why our 150-day number is as 
high as it is, because those cases are going to the head of the 
line and certainly we expect that and we fully believe in that 
system. Now, those regulations do not apply to the Court's 
activities, but they certainly are fully applicable at the 
Board.
    Mr. Hall. In your written statement, you mentioned the 
success you have had in reducing backlog appeals and 
eliminating avoidable remands. I wanted to ask you if you could 
summarize quickly what you have done differently, given the 
current staffing and the current regulation. How much more do 
you think that remand rate can be reduced, and what do we need 
to do to help you do that?
    Mr. Terry. The remand rate is really an exercise that is 
applicable to each of the organizations within the Department 
of Veterans Affairs. It includes the Veterans Health 
Administration, the Veterans Benefit Administration, and our 
Board. Each has to play a part in ensuring that we get a full 
and proper diagnosis in the medical examination. There has to 
be a complete development of the record at the Veterans 
Benefits Administration.
    And we have to ensure that we search all four corners of 
the case file to find a way to decide that case properly. Cases 
are remanded because they have not been fully developed and the 
veterans' rights are not fully protected. We remand a number of 
cases each year, and it is because the case has not been fully 
developed and the veteran has not been served.
    And, consequently, it is our effort through working with 
VBA in a training program we jointly developed and working with 
Dr. Kussman in the Veterans Health Administration to ensure 
that there is a nexus examination in every case, that is the 
doctors who are looking at our veteran, he or she, making sure 
that they are actually looking at what the complaint is and 
addressing that complaint in the medical examination.
    We are asking the Veterans Benefits Administration, each 
rating specialists to make sure that they are looking at every 
concern that is raised by the veteran and have that evidence 
which addresses that concern in the file. And when we get a 
case and it is not fully developed, then we cannot decide in 
fairness to the veteran that case in a proper way. So it 
requires all of us working together.
    The Deputy Secretary instituted a program 2\1/2\ years ago, 
Deputy Secretary Mansfield, and we began working as a group, 
Veterans Health Administration, Veterans Benefits 
Administration, and the Board as trainers and working together 
to ensure that there was a sensitivity on the part of all 
concerned to get that information and get it properly developed 
before it got to the Board. And when that happens, our remand 
rate goes way down.
    There are certain things we cannot control, of course, if 
some new information or some new medical diagnosis comes 
forward. Then, of course, no matter how well the development 
has gone and we in fairness to the veteran have to make sure 
that that is considered and the veteran has the absolute right 
to have it go back to the agency of original jurisdiction, the 
Regional Office, and have that occur.
    But those that we can control, those that we can ensure are 
developed to the extent possible, we will and we are right now. 
I think we have made tremendous strides.
    Mr. Hall. Thank you.
    Lastly, I just wanted to ask your thoughts on the Rule of 
Prejudicial Error and de novo review by the Court.
    Mr. Terry. Prejudicial error is exactly that. It is 
prejudicial to the claimant. When there is no prejudice, we are 
very concerned that the Court of Veterans Claims and the Court 
Appeals for the Federal Circuit treat our cases like other 
cases in the Federal system.
    We have been working very hard with the Court and with our 
staff to ensure that we handle those cases where there is 
prejudice at the lowest possible level and correct that 
prejudice.
    The ``Veterans Claims Assistance Act'' deals with 
notification and assistance. Most prejudicial error cases are 
addressed in terms of that Act. And the question becomes one of 
has the individual been properly notified, did he have an 
understanding of every opportunity to present evidence and 
provide that evidence, and when he has, although it may not 
have gone in quite the sequence provided for by that Act, we 
simply ask the Court of Appeals of Veterans Claims and the 
Court of Appeals of the Federal Circuit to treat our process 
like other processes within the Federal system.
    It is as simple as that. We are trying to minimize any 
concerns with regard to the information that is provided to the 
veteran, but I think it is important that where there is no 
prejudice to the veteran that the case be allowed to be moved 
forward.
    Randy, do you have any additional comments you would like 
to make?
    Mr. Campbell. I would just touch on changing the standard 
of review. I do not know that changing the standard of review 
is going to address or alleviate the theme of this hearing, 
eliminating the backlogs at the Court. It would be changing the 
process fundamentally, changing the Appeals Court into a fact-
finding court, but it would be a fundamental change.
    Mr. Hall. Thank you.
    Our Ranking Member has had to leave for another engagement. 
In his absence, Minority Counsel, Jeff Phillips, would like to 
ask a question.
    Mr. Phillips. Thank you, Mr. Chairman.
    Mr. Terry, under the heading ``Stopping the Hamster 
Wheel,'' do you see any reason for the Court not to consider 
all issues in a given case contested by a veteran?
    Mr. Terry. We would hope they would.
    Mr. Campbell. If I might weigh in on that. When the Court 
of Appeals for Veterans Claims issued their precedents in Mahl 
and Best, they explained their thinking, their reasoning on why 
they would not necessarily delay the processing of a veteran's 
claim to address each and everything raised in the brief.
    One thing the Court does routinely is it permits the 
veteran, if a veteran can demonstrate he or she is entitled to 
greater relief than a remand to correct error, then they will 
consider that before they remand the case.
    One of the things that is unique about veterans' 
jurisprudence is that when a case is remanded from the Court 
back to the Board of Veterans' Appeals or to the agency of 
original jurisdiction, the veteran gets a fresh bite at every 
issue and it is incumbent upon VA to provide a new decision on 
every issue that the veteran wishes VA to pursue so that the 
Court did not look at the Best, Mahl rule as one that cuts off 
veterans' rights but actually preserves veterans' rights 
without clogging up the Court's docket with cases that are 
going to be remanded anyhow and the veteran would not get any 
greater relief.
    But the other thing is, the rule is a discretionary one, as 
I understand it, and there are instances where the individual 
judges in exercising their discretion will address additional 
issues and not just cut the veteran off at one issue. They will 
address all the different assignments of error. So it is really 
a case-by-case thing and it is left to the judge's discretion.
    Mr. Phillips. Thank you.
    Thank you, Mr. Chairman.
    Mr. Hall. Thank you, Mr. Phillips.
    Thank you, Chairman Terry and Mr. Campbell, for your 
testimony and everybody who stayed here with us listening and 
all the staff. This now concludes our hearing. Thank you.
    [Whereupon, at 11:59 a.m., the Subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              

         Opening Statement of the Hon. John J. Hall, Chairman,
       Subcommittee on Disability Assistance and Memorial Affairs
    Good Morning,
    I would ask everyone to rise for the Pledge of Allegiance--flags 
are in the front and rear of the room.
    I would first like to thank the witnesses for coming today to 
appear before the Subcommittee. I know the issues pertinent to the 
Court of Appeals for Veterans Claims and the ease of the administration 
of justice for our veterans is of utmost importance to you.
    I also want to commend Chief Judge Greene of the Court of Appeals 
for Veterans Claims for the exceptional job he has been doing with a 
relatively ``young'' bench in increasing the Court's efficiency and 
productivity through innovative management approaches, especially with 
the recall of retired judges.
    I know that you are also going to benefit from successful efforts 
by this Committee to increase Veterans' funding in the FY 08 Budget 
Resolution which passed this Congress with additional resources to 
expand your staff. You deserve it. You have certainly stepped up to the 
plate for our veterans and I want you to continue to call on this 
Subcommittee and this Congress for the resources you need.
    However, no one will deny that more needs to be done to create a 
better system of appellate justice for our veterans. The merry-go-round 
of the appeals process from the Regional Office to the Board of 
Veterans' Appeals to the Court (the Court) and the usual merry-go-round 
of remands back and forth between the three has turned into almost a 
system of injustice for our veterans.
    I would direct everyone's attention to the charts displayed that 
show the appeals process for veterans' claims. As the retired judges of 
the Court have indicated in previous statements before Congress, with 
four levels of appeals, the one administrative to the Board and three 
possible levels of judicial appeal, ``this is just more justice than 
the system can bear.''
    First the veteran can appeal the Regional Office decision to the 
Board of Veterans' Appeals, known as the BVA. This process can take up 
to 3 years. From there, the veteran can appeal the BVA decision to the 
Court of Appeals for Veterans claims, where the average time from 
filing to disposition is 351 days. From there an appeal can be made to 
the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit 
Court usually takes up to a year to make a decision which then can be 
appealed to the Supreme Court. This cycle can repeat itself a few times 
for one veteran in many different variations adding up to between 5-7 
years to final adjudication.
    The question becomes at what cost to the administration of justice 
is this cycle for our veterans. For instance, I know that many take 
pause with the review of one Federal intermediate appellate court (the 
CAVC) by another Federal intermediate appellate court (the Federal 
Circuit Court) and wonder what is gained by this unique additional bite 
at the appeals apple.
    Additionally, the veterans' appeals process is interlaced with 
vacated and remanded decisions (cases sent back for a new decision or 
correction), resulting in an appeals cavalcade of sorts that end up 
creating extensive and unacceptable delays in the adjudication of 
veterans' claims. This process adds years to the process and the 
Subcommittee has been alerted to cases pending on appeal for more than 
a decade. In fact, many appellants die while waiting for finality in 
their appeals. At that point, the CAVC appeal usually dies as well, 
with little recourse for surviving dependents, spouses and estates. 
This is not the desired result for our veterans' beneficiaries.
    I look forward to hearing the witnesses' views on these phenomena 
of the veterans appeals process.
    I likewise look forward to hearing testimony on ways to improve 
processes within the Court itself. I particularly am interested in 
examining the issue pertaining to

    expanding the interpretation of prejudicial error, which to date 
has been interpreted as narrowly as possible by the Court.
    I am aware in many instances that often for the sake of expediency 
the Court will not resolve all issues raised on appeal and will vacate 
and remand on only one aspect of error raised on brief.
    I also realize that the Court by statute is not allowed to review 
cases de novo (weigh all of the BVA and RO findings of evidence and 
law), under 38 U.S.C., Sec. 7261. However, I would like to examine the 
value of allowing the Court to weigh de novo evidence and make 
determinations of fact without first remanding to the Board of Veterans 
Appeals to supplement the record or to correct the error. I know the 
National Veterans Legal Services Program (NVLSP), the National 
Organization of Veterans' Advocates (NOVA) and the Disabled American 
Veterans (DAV) have ideas in this area and I am anxious to explore them 
further.
    Lastly, I look forward to hearing from the VA represented today by 
Chairman Terry of the BVA, accompanied by Mr. Randy Campbell, an 
assistant general counsel with the VA's General Counsel's office that 
represents the agency before the Court, on how it can reduce the number 
of remanded cases by increasing the accuracy of its decisionmaking.
    I also would like to hear about the problems it sees systemwide and 
the role it plans to take in lessening the appellate ``hamster wheel'' 
for our veterans.
    With the expected surge in filings by returning OIF/OEF veterans, 
the VA, as the ``gateway'' in the appeals process as well as the oft-
creator of the record that forms the basis for appellate review, should 
amplify its role in the overall improvement of the claims adjudication 
process.
    Thank you.

                                 

Opening Statement of the Hon. Doug Lamborn, Ranking Republican Member, 
       Subcommittee on Disability Assistance and Memorial Affairs
    Thank you Mr. Chairman for recognizing me. I thank you for holding 
this hearing on the Court of Appeals for Veterans Claims and its role 
in the efficient processing of disability compensation claims.
    I welcome our witnesses, especially Chief Judge Greene, and thank 
you all for your contributions to the veterans' affairs system.
    The court has come far since its 1988 founding, and by all accounts 
is largely producing quality decisions.
    Judge Greene, you are to be commended for making use of Title 38 
and recalling five retired judges to increase your productivity. I note 
the emphasis you place on a dedicated courthouse and adequate room for 
a growing court, and am most interested in ensuring you have the 
facilities you need.
    We face an unprecedented challenge as the number of compensation 
and pension claims increase faster than VA's ability to process them. 
Further, accuracy is not what it should be, driving up appeals; and we 
are seeing among veterans a growing propensity to appeal.
    These factors have already had a dramatic effect on the court's 
workload, which has essentially doubled in the last 10 years. The 
number of pending cases is double the number pending 3 years ago and 
more than 3 times the number pending a decade ago.
    We must be attentive to the court's ability to handle demands which 
presumably will continue to climb.
    I am, therefore, interested in learning more about the efficiency 
of the court's operations. The phenomenon called the ``hamster wheel'' 
has caught my eye.
    Perhaps there is good rationale, but it seems inefficient for a 
veteran to appeal a multi-issue denial from the Board of Veterans 
Appeals, only to see one issue addressed, and perhaps remanded or 
vacated by the court at a time.
    According to testimony we have received, this stretches the appeals 
process for often aging veterans by years. I do not believe that the 
court is required to do business this way, nor would it appear that it 
contributes to higher court productivity.
    Our veterans deserve the best benefits delivery system we can 
provide. In my brief period as Ranking Member, I have learned much 
about that system. I was pleased to work with Chairman Hall over the 
past few weeks on legislation that would improve how we serve veterans 
applying for benefits that they earned.
    In the testimony we have read numerous suggestions regarding the 
court's operations, and I now look forward to our discussion on this 
essential facet of the benefits system.
    Mr. Chairman, I yield back.

                                 

             Statement of the Hon. William P. Greene, Jr.,
         Chief Judge, U.S. Court of Appeals for Veterans Claims
MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE SUBCOMMITTEE:
    On behalf of the Court, I appreciate the opportunity to present 
testimony on the challenges facing the United States Court of Appeals 
for Veterans Claims. As Chief Judge, I lead the Court in its daily 
operations, which includes determining how best to use our judicial 
resources. I have great assistance from my colleagues--who form the 
Board of Judges, the Clerk of the Court, and a very competent judicial 
staff. The Court is a national appellate court of record. Our primary 
responsibility is to provide independent judicial review of final Board 
of Veterans' Appeals (BVA or Board) decisions that are adverse to a 
veteran's claim for benefits.
    Initially, let me state that less than 2 years ago, in August 2005, 
I became the Chief Judge of a relatively new Court. We had just 
experienced the first complete turnover or retirement of all of the 
original judges on our Court. By statute, judges of this Court are 
appointed by the President, with the advice and consent of the Senate, 
to 15-year terms. The Court was created in November 1988 by the 
Veterans' Judicial Review Act, and it opened its doors in October 1989 
after the first three judges had been confirmed. Four more judges 
joined the bench the following year, bringing the Court up to its 
statutory full strength of seven active judges. I was appointed to the 
Court in November 1997 after the death of Judge Hart T. Mankin, one of 
the original seven, created a vacancy.
    Since all judges had been appointed within a few months of one 
another, as we approached the 15-year mark of the Court's operations, 
the terms of the remaining original judges began to expire, in 
succession, in order of seniority. We went from seven judges, to five 
judges, as we awaited nomination and confirmation of new judges. As 
appointments were made, we returned to seven judges, to temporarily (as 
provided by statute) nine judges, then--in August 2005--back to seven 
judges, with six being new. From once being a junior judge, I suddenly 
overnight became the most senior and the Court's Chief Judge, with two 
colleagues who had served just over 1 year, and four new colleagues who 
had served for only several months. This transformation was indeed 
challenging.
    Now, I am happy to report that our four newest judges have 
completed 2\1/2\ years of service on the bench, and two judges are 
approaching 3\1/2\ years. We are now a far more experienced Court. That 
experience level has produced positive results that I will highlight 
today.
    However, before discussing caseload and case processing, I would 
like to tell you a little more about the Court in the context of the 
Federal judicial system. The Court is a federal appellate judicial 
tribunal. It stands with the U.S. Court of Appeals for the Armed Forces 
as one of two specialized Federal appellate courts, created under 
Article I of the U.S. Constitution, joining the 13 Article III circuit 
courts of appeal and the specialized U.S. Court of Appeals for the 
Federal Circuit, as a part of the Federal appellate judiciary. When the 
Court was created, veterans and their families got--for the first 
time--the right to judicial review of final BVA decisions. And they are 
making use of that right.
    Recently, Associate Professor Michael Allen, of the Stetson 
University College of Law, when commenting on proposed changes to the 
Court's Rules of Practice and Procedure, observed that the U.S. Court 
of Appeals for Veterans Claims is one of the busiest Federal appellate 
courts, nationwide. Professor Allen points out that, in 2006, with 
3,729 new cases, the Court's incoming caseload was greater than the 
First (with 1,852 cases), Seventh (3,634), Eighth (3,312), Tenth 
(2,742), District of Columbia (1,281), and Federal (1,772) Circuits. 
With only seven active judges, this Court's per-judge average is 533 
cases, about twice as many cases as the 263 average per judge for the 
Article III circuit courts of appeal. This workload presents a 
significant challenge.
    For many years, the veterans' benefits process, administered by the 
Department of Veterans Affairs (VA), operated without any right by a 
veteran to independent judicial review of a decision by VA on a claim. 
As the possibility of providing judicial review of final agency 
decisions adversely affecting veterans was debated, good arguments were 
raised for a variety of proposals as to how that judicial review ought 
to be provided. Those who favored judicial review pointed out that 
there would be significant problems in trying to develop veterans law 
expertise in any of the courts of more general jurisdiction. That lack 
of specialized expertise was perceived to be a potential detriment to 
veterans and to VA because of the complexity of this area of the law.
    One concern that needed to be addressed in creating a specialized 
appellate court was that, because there had not previously been a right 
to judicial review, there was not an existing body of veterans law 
appellate jurisprudence. Therefore, a structure unique within the 
Federal court system was created. The Congress established an 
independent court of appeals that handled only veterans' cases. The 
U.S. Court of Veterans Appeals, now the U.S. Court of Appeals for 
Veterans Claims, was created as an appellate court, applying general 
principles for appellate review of agency final decisions; and the U.S. 
Court of Appeals for the Federal Circuit (Federal Circuit) was given 
limited appellate jurisdiction to review decisions of this Court 
affecting only questions of law. The serial appellate review by two 
separate appellate courts achieved the purpose envisioned by its 
advocates, and we now have the settled body of specialized 
jurisprudence that was lacking when the system was designed. Indeed, 
there are now 20 volumes of law in the West Reporter Series: West's 
Veterans Appeals Reporter.
    Appeals to the Court are, as a matter of right, without any 
jurisdictional filter. Veterans and their qualifying family Members who 
have received from the BVA (in whole or in part) an adverse decision 
affecting benefits may file an appeal. They need only file within 120 
days after the date of the Board decision, citing the Board decision 
that is being appealed. A modest filing fee of $50.00 is required, but 
that fee is often waived upon a showing of financial hardship. 
Thereafter, the Secretary and the appellant (or the appellant's 
counsel) determine which documents within the veteran's claims file 
should constitute the Designated Record for the Court's review. After 
the record has been designated, the parties must present written 
briefs, may request oral argument, and can make such other motions 
affecting the appeal as may be appropriate. During this period, 
unrepresented appellants frequently obtain counsel (in fiscal year (FY) 
2006, 63% of appellants were unrepresented when they filed an appeal, 
but only 24% continued to be unrepresented at closure). Generally, the 
Court's rules allow 254 days for this appellate process. The appellant 
and the Secretary frequently request additional time to accomplish the 
preparation (about 13,000 requests for extension of time were filed by 
the parties in FY 2006; more than 10,000 such requests have already 
been filed in FY 2007).
    Before the case is fully briefed and ready for screening for 
assignment to a judge for decision, the parties may agree on a 
disposition that does not require action by a judge or panel of judges. 
The Secretary and the appellant can agree jointly to vacate the Board 
decision and remand the case to the Board so that it can address the 
issues raised on appeal. Attorneys in the Central Legal Staff are key 
facilitators in this process.
    The case is then assigned to a judge, who must review the case to 
decide whether it presents a novel issue requiring a panel decision or 
whether it involves the application of settled law. If it involves the 
application of settled law to the facts of the case, a single judge is 
permitted to decide the case and issue a memorandum decision. This 
single-judge decision authority is absolutely essential to the Court's 
ability to handle a large caseload with only seven judges. If, during 
this screening process, the judge believes that the case involves a 
novel issue of law, the judge will ask the Clerk to assign the case to 
a three-judge panel. That panel can then proceed to a decision, with or 
without oral argument by the parties.
    It is the Court's practice to circulate among all of the judges for 
review the single-judge decisions and panel opinions. In the case of 
single-judge decisions, if two judges believe the case requires 
decision by a panel, it must be referred to a panel. This review 
process assures that single judges do not make decisions that should be 
the subject of precedential panel decisions and that there are not 
potential conflicts in precedential panel opinions. During the 
circulation of a draft opinion by a three-judge panel, there may be a 
call for consideration of the matter by the full court when it is 
believed that the proposed opinion addresses issues of exceptional 
importance or creates a conflict in the Court's jurisprudence that must 
be resolved.
    Once a decision or opinion issues, either party may request 
reconsideration and/or panel review of a single-judge decision. If that 
request for reconsideration is denied by the single judge, any request 
for panel review will be considered. Similarly, there may be a request 
for full Court consideration of a panel opinion.
    But the appeal process does not end here. Following a final 
decision by our Court, the unique statutory jurisdictional scheme 
adopted for the creation of appellate review of VA final decisions 
permits a veteran or the Secretary to file an appeal to the Federal 
Circuit. The Federal Circuit has jurisdiction to review our decisions 
that interpret the statutes and regulations, but not those decisions 
that apply the law to the facts of a particular case.
    Many of the cases appealed to the Federal Circuit today are 
dismissed at that level for lack of jurisdiction when that Court 
concludes that the case had involved the application of law to fact. In 
areas where questions of law are interpreted by our Court, the Federal 
Circuit reviews our decisions without deference to our interpretation. 
During FY 2006, 366 cases from our Court were appealed to the Federal 
Circuit.
    Finally, following review in the Federal Circuit, either party may 
seek review by the U.S. Supreme Court by filing a Petition for a Writ 
of Certiorari. Since 1989, the Supreme Court has considered two of our 
cases.
    Now I turn to the challenges created by the Court's greatly 
increased caseload. Last year, I advised the Court's congressional 
authorizing and appropriations Committees that I anticipated that new 
case filings to the Court would continue to rise and could reach 3,600. 
In fact, in FY 2006 the Court received 3,729 new case filings; and we 
decided 2,842 cases, the third highest number in our history. The 
rolling wave of new cases received in FY 2007 continues the previous 
year's trend of substantial increases in the Court's workload over that 
experienced from FY 1989 through FY 2004.
    The following table, which also appears on page 4 of the Court's FY 
2008 Budget Submission, reveals the trends from FY 1995 through FY 2006 
for Board of Veterans' Appeals (BVA or Board) total denials and appeals 
and petitions to the Court:


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           FY95    FY96    FY97    FY98    FY99    FY00    FY01    FY02    FY03    FY04    FY05    FY06
--------------------------------------------------------------------------------------------------------------------------------------------------------
BVA                                                         6407   10444   15865   15360   14881   14080    8514    8606   10228    9299   13033   18107
Total
Denials
--------------------------------------------------------------------------------------------------------------------------------------------------------
Case                                                        1279    1629    2229    2371    2397    2442    2296    2150    2532    2234    3466    3729
Filings
to
USCAVC
--------------------------------------------------------------------------------------------------------------------------------------------------------
Case                                                       20.0%   15.0%   14.0%   15.4%   16.1%   17.3%   27.0%   25.0%   24.0%   24.2%   26.6%   20.6%
Filings
as % of
Denials
--------------------------------------------------------------------------------------------------------------------------------------------------------


    In the first two quarters of FY 2007, we have received the highest 
numbers ever (2,542 new cases in 2 quarters). Although many of those 
cases related to a single issue in a particular case (over 1,100 cases 
were appeals of decisions on bilateral tinnitus claims, controlled by 
Smith v. Nicholson), even without counting those cases, there remained 
an average of 300 appeals per month.
    Additionally, the following chart shows cases filed and cases 
decided from the first quarter of FY 2006 through the second quarter of 
FY 2007:

       U.S. Court Of Appeals for Veterans Claims Cases Files and
             Decided From October 1, 2005 to March 31, 2007


[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    At the same time, the Court decision rate has risen as indicated by 
an increasing number of cases decided per quarter. In the first and 
second quarters of FY 2007, the Court decided 2,941 cases, as compared 
to 1,274 in the first 2 quarters of FY 2006. The number of cases 
decided thus far in 2007 exceeds the number of incoming cases, which 
was 2,542. Nevertheless, new cases continue to arrive at a high rate--
between 300 and 400 every month. The pie graph that follows depicts the 
Court's case inventory as of May 10, 2007. Of the 6,080 cases in our 
inventory, 3,452 are being developed by the parties, and 1,181 have 
already been decided but are temporarily kept in the inventory for a 
variety of reasons (426 cases on appeal to the Federal Circuit, 154 
cases pending action on Equal Access to Justice Act applications, 417 
cases awaiting the time to run for mandate, and 184 cases awaiting the 
time to run for entry of judgment); 204 cases are stayed upon request 
of the parties or awaiting disposition of the appeal in a related case; 
398 cases are ready for review by the Central Legal Staff; 593 cases 
are pending a decision by the judges; and 89 are pending action by the 
Clerk (either on a joint motion of the parties or awaiting a response 
to a motion for dismissal for jurisdictional reasons).

           U.S. Court of Appeals for Veterans Claims Caseload
                   (as of May 10, 2007) Total: 6,080



[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]




    There is no single factor that accounts for the Court's sustained 
high level of new cases. The increase, however, may be attributable to 
several circumstances: Firstly, the increased productivity of the 
Board, including a higher number of denials of benefits, produces more 
potential appeals; second, increased awareness among veterans and their 
families of the Court's 19-year existence; and, third, the availability 
of a larger number of attorneys who practice veterans benefits law who 
may be advising their clients to appeal to the Court. Even Board 
decisions that are not total denials, but rather grants of benefits, 
may result in an appeal to the Court if the claimant believes that he 
or she should have a higher rating or an earlier effective date for 
benefits than that awarded by the Board.
    The Court's success in productivity over the last fiscal year can 
be attributed to 3 factors: the additional experience acquired by the 
Court's judges, the increase in the number of law clerks to help the 
judges prepare cases for decision, and my decision as the Chief Judge 
to recall retired judges for statutorily authorized periods of 90 days 
to assist in case resolution. To date, five retired judges have been 
recalled to provide service to the Court. Although their service does 
add to the Court's output, there are challenges in supporting them 
adequately. Presently, we must redirect the efforts of our Central 
Legal Staff attorneys from their routine case screening to law-clerk 
duties for our recalled judges. Continuing through fiscal year 2008, 
three new attorney positions within the Central Legal Staff will allow 
us to address the staff workload imbalance or shortage created by the 
need to provide adequate support for recalled-retired judges.
    We are considering these and other initiatives to enhance our 
ability to reduce our pending caseload--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. The following 
actions potentially will assist us in meeting the challenges presented 
by the upsurge in appeals to this Court:
    Firstly, 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 availability 
can be most useful. But, there are space and staffing issues 
accompanying any recall decision that must be addressed. The Court is 
currently budgeted with three staff attorneys to support recalled 
judges. To recall at least two judges at one time requires additional 
space, support staff, and security arrangements. We are also looking 
for ways in which their service might practically and productively be 
used that is most compatible with the Court's existing operations and 
procedures.
    Second, the Court's Rules Advisory Committee has recommended the 
creation of a joint appendix as the record on appeal instead of using 
the current Designated Record. A joint appendix is a condensed record 
on appeal that is limited to just the documents from the claims file 
that principally are relied upon by both parties. It is the form of 
record used by the Federal Circuit when it reviews appeals from 
decisions of our Court. Use of a joint appendix could expedite review 
at the Court by focusing consideration only on documents relevant to 
issues argued on appeal. 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-upon 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. The Court is 
presently receiving and reviewing public comments submitted upon this 
proposed rules change.
    Third, 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 its hallmark policies 
concerning the resolution of veterans' cases has been to provide to a 
veteran an explanation of the reasons for the Court's decision. 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 be 
explained to the appellant by his or her 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. The subject was also 
raised in a Bar and Bench Conference held last month.
    Fourth, we are working on implementing a case management/electronic 
case filing system (e-filing). The Court has partnered with the 
Administrative Office of the United States Courts to acquire and use 
the software and e-filing system already developed for the Article III 
courts. Indeed, 10 of the 13 circuit courts of appeals now have that 
capability. Our goal is to have the first phase of e-filing implemented 
by June 2008. The availability of electronic filing should enable us to 
reduce 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. It would 
also alleviate our current shortage of space for file storage.
    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 these 
attorneys, retired judges, and perhaps appointed magistrates or 
mediators 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. 
Significantly, the current lease of three floors of a commercial 
building that is our courthouse expires in October 2010. Thus, we need 
to explore every feasible option quickly because 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 theclass=Section7>
    Court. More importantly, the U.S. Court of Appeals for Veterans 
Claims is the only Federal national court without its own dedicated 
courthouse. It is especially time now to have a dedicated courthouse 
that is a lasting symbol of justice and an expression of the nation's 
gratitude and respect for the sacrifices of America's sons and 
daughters who have served in the Armed Forces, and their families. We 
look forward to your committed support for this worthy project.
    Simply stated, we are implementing actions 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. I take my case-flow management 
responsibilities very seriously and have full support from all judges. 
We are properly motivated, collegial, and dedicated to rendering 
thorough and timely decisions. It must be remembered that the Court 
does not adjudicate the facts of these cases for VA. The appellants 
already have received perhaps many adjudications and have a decision on 
their claims. The Court provides independent judicial review of VA's 
decisions for legal error and in doing so provides legal precedent that 
will promote uniformity and fairness in the claims adjudication 
process. All may rest assured that no week at the Court goes by without 
a dialog among the judges and staff on how to decide these cases 
efficiently and thoroughly.
    That summarizes the Court's challenges and our work to meet them. 
On behalf of the judges and staff of the Court, we appreciate very much 
your past support and continued assistance.

                                 
                    Statement of Barton F. Stichman,
   Joint Executive Director, National Veterans Legal Services Program
Mr. Chairman and Members of the Committee:
    I am pleased to be here today to present the views of the National 
Veterans Legal Services Program (NVLSP) on the challenges facing the 
U.S. Court of Appeals for Veterans Claims (``the CAVC'').
    NVLSP is a nonprofit veterans service organization that supported 
throughout the eighties bills to repeal the then longstanding bar to 
judicial review of VA decisionmaking on claims for benefits. Since the 
CAVC was created in 1988, NVLSP has represented nearly 1,000 VA 
claimants before the Court. NVLSP is one of the four veterans service 
organizations that comprise the Veterans Consortium Pro Bono Program, 
and in that Program, NVLSP recruits and trains volunteer lawyers to 
represent veterans who appeal to the CAVC without a representative. In 
addition to its activities with the Pro Bono Program, NVLSP has trained 
thousands of veterans service officers and lawyers in veterans benefits 
law, and has written educational publications that have been 
distributed to thousands of veterans advocates to assist them in their 
representation of VA claimants.
    At the outset, NVLSP wishes to acknowledge and commend Chief Judge 
Greene, the other judges, and the staff of the CAVC on the affirmative 
steps they have taken and are scheduled to take in the future to 
minimize the time lag between the filing of an appeal and a decision by 
the Court. These efforts are already bearing fruit. The continuing 
increase in the number of appeals that are annually filed at the CAVC 
makes these ongoing efforts doubly important.
    My testimony today is informed by the frustration and 
disappointment in the claims adjudication system experienced by many 
disabled veterans and their survivors. They face a number of serious 
challenges, including in the judicial appeal process. As we describe 
below, there are several significant problems that cry out for a 
legislative fix.
I.  The Hamster Wheel
          For many years now, those who regularly represent disabled 
        veterans before the CAVC have been using an unflattering phrase 
        to describe the system of justice these veterans too often 
        face: ``the Hamster Wheel''. This phrase refers to the 
        following common phenomenon: the veteran's claim is transferred 
        back and forth between the CAVC and the Board, and the Board 
        and the RO, before it is finally decided. The net result is 
        that frustrated veterans have to wait many years before 
        receiving a final decision on their claims.
          There are at least three aspects of the CAVC's decisionmaking 
        process that contribute to the Hamster Wheel phenomenon: (1) 
        the policy adopted by the CAVC in 2001 in Best v. Principi, 15 
        Vet.App. 18, 19-20 (2001) and Mahl v. Principi, 15 Vet.App. 37 
        (2001); (2) the CAVC's reluctance to reverse erroneous findings 
        of fact made by the Board of Veterans' Appeals; and (3) the 
        case law requiring the CAVC to dismiss an appeal if the veteran 
        dies while the appeal is pending before the Court.
    A.   How Best and Mahl Contribute to the Hamster Wheel
                  In Best and Mahl, the Court held that when it 
                concludes that an error in a Board of Veterans' Appeals 
                decision requires a remand, the Court generally will 
                not address other alleged errors raised by the veteran. 
                The CAVC agreed that it had the power to resolve the 
                other allegations of error, but announced that as a 
                matter of policy, the Court would ``generally decide 
                cases on the narrowest possible grounds.''
                  The following typical scenario illustrates how the 
                piecemeal adjudication policy adopted by the CAVC in 
                Best and Mahl contributes to the Hamster Wheel 
                phenomenon:

                          after prosecuting a VA claim for 
                        benefits for 3 years, the veteran receives a 
                        decision from the Board of Veterans' Appeals 
                        denying his claim;
                          the veteran appeals the Board's 
                        decision within 120 days to the CAVC, and files 
                        a legal brief contending that the Board made a 
                        number of different legal errors in denying the 
                        claim. In response, the VA files a legal brief 
                        arguing that each of the VA actions about which 
                        the veteran complains are perfectly legal;
                          then, four and a half years after the 
                        claim was filed, the Central Legal Staff of the 
                        Court completes a screening memorandum and 
                        sends the appeal to a single judge of the CAVC. 
                        Five years after the claim was filed, the 
                        single judge issues a decision resolving only 
                        one of the many different alleged errors 
                        briefed by the parties. The single judge issues 
                        a written decision that states that: (a) the 
                        Board erred in one of the respects discussed in 
                        the veteran's legal briefs; (b) the Board's 
                        decision is vacated and remanded for the Board 
                        to correct the one error and issue a new 
                        decision; (c) there is no need for the Court to 
                        resolve the other alleged legal errors that 
                        have been fully briefed by the parties because 
                        the veteran can continue to raise these alleged 
                        errors before the VA on remand.
                          on remand, the Board ensures that the 
                        one legal error identified by the CAVC is 
                        corrected, perhaps after a further remand to 
                        the regional office. But not surprisingly, the 
                        Board does not change the position it 
                        previously took and rejects for a second time 
                        the allegations of Board error that the CAVC 
                        refused to resolve when the case was before the 
                        CAVC. Six years after the claim was filed, the 
                        Board denies the claim again;
                          120 days after the new Board denial, 
                        the veteran appeals the Board's new decision to 
                        the CAVC, raising the same unresolved legal 
                        errors he previously briefed to the CAVC.
                          the Hamster Wheel keeps churning . . 
                        .

                  The piecemeal adjudication policy adopted in Best and 
                Mahl may benefit the Court in the short term. By 
                resolving only one of the issues briefed by the 
                parties, a judge can finish an appeal in less time than 
                would be required if he or she had to resolve all of 
                the other disputed issues, thereby allowing the judge 
                to turn his or her attention at an earlier time to 
                other appeals. But the policy is myopic. Both disabled 
                veterans and the VA are seriously harmed by how Best 
                and Mahl contribute to the Hamster Wheel. Moreover, the 
                CAVC may not be saving time in the long run. Each time 
                a veteran appeals a case that was previously remanded 
                by the CAVC due to Best and Mahl, the Central Legal 
                Staff and at least one judge of the Court will have to 
                duplicate the time they expended on the case the first 
                time around by taking the time to analyze the case for 
                a second time. Congress should amend Chapter 72 of 
                Title 38 to correct this obstacle to justice.
    B.   How the Court's Reluctance to Reverse Erroneous BVA Findings 
        of Fact Contributes to the Hamster Wheel
                  Over the years, NVLSP has reviewed many Board 
                decisions in which the evidence on a critical point is 
                in conflict. The Board is obligated to weigh the 
                conflicting evidence and make a finding of fact that 
                resolves all reasonable doubt in favor of the veteran. 
                In some of these cases, the Board's decision resolves 
                the factual issue against the veteran even though the 
                evidence favorable to the veteran appears to strongly 
                outweigh the unfavorable evidence.
                  If such a Board decision is appealed to the CAVC, 
                Congress has authorized the Court to decide if the 
                Board's weighing of the evidence was ``clearly 
                erroneous.'' But the Court interprets the phrase 
                ``clearly erroneous'' very narrowly. The Court will 
                reverse the Board's finding on the ground that it is 
                ``clearly erroneous'' and order the VA to grant 
                benefits in only the most extreme of circumstances. As 
                the CAVC stated in one of its precedential decisions: 
                ``[t]o be clearly erroneous, a decision must strike us 
                as more than just maybe or probably wrong; it must . . 
                . strike us as wrong with the force of a 5-week-old, 
                unrefrigerated dead fish. . . . To be clearly 
                erroneous, then, the [decision being appealed] must be 
                dead wrong. . . .'' Booton v. Brown, 8 Vet.App. 368, 
                372 (1995) (quoting Parts & Electric Motors, Inc. v. 
                Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 
                1988)).
                  The net result of the Court's extreme deference to 
                the findings of fact made by the Board is that even if 
                it believes the Board's weighing of evidence is wrong, 
                it will not reverse the Board's finding and order the 
                grant of benefits; instead, it will typically vacate 
                the Board decision and remand the case for a better 
                explanation from the Board as to why it decided what it 
                did--thereby placing the veteran on the Hamster Wheel 
                again. Congress should amend the Court's scope of 
                review of Board findings of fact in order to correct 
                this problem.
    C.   How the Case Law Requiring the CAVC to Dismiss an Appeal if 
        the Veteran Dies While the Appeal is Pending Contributes to the 
        Hamster Wheel
                  On April 24, 2007, Christine Cote testified on 
                NVLSP's behalf before this Subcommittee about another 
                contributor to the Hamster Wheel: the case law that 
                requires the CAVC to dismiss an appeal if the claimant 
                dies before the appeals process has been completed. 
                Under this case law, a qualified surviving family 
                Member cannot continue the appeal at the CAVC. Instead, 
                the qualified surviving family Member must start from 
                square one and file a new claim at a VA regional office 
                for the benefits that the veteran had been seeking for 
                years at the time of his death. As Ms. Cote explained, 
                Congress should take legislative action to allow a 
                qualified surviving family Member to substitute for the 
                deceased veteran and continue the appeal at the CAVC.
II.  Injustice and Inefficiency Due to the Lack of Class Action 
        Authority
          The second major set of issues we would like to address 
        involves the injustice and inefficiency that derives from the 
        fact that Federal courts do not currently have clear authority 
        to certify a veteran's lawsuit as a class action. When Congress 
        enacted the Veterans' Judicial Review Act (VJRA) in 1988, it 
        inadvertently erected a significant roadblock to justice. Prior 
        to the VJRA, U.S. district courts had authority to certify a 
        lawsuit challenging a VA rule or policy as a class action on 
        behalf of a large group of similarly situated veterans. See, 
        e.g., Nehmer v. U.S. Veterans Administration , 712 F. Supp. 
        1404 (N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans 
        Administration , 853 F. Supp. 34 (D.P.R. 1993). If the district 
        court held that the challenged rule or policy was unlawful, it 
        had the power to ensure that all similarly situated veterans 
        benefited from the court's decision.
          But the ability of a veteran or veterans organization to file 
        a class action ended with the VJRA. In that landmark 
        legislation, Congress transferred jurisdiction over challenges 
        to VA rules and policies from U.S. district courts (which 
        operate under rules authorizing class actions) to the U.S. 
        Court of Appeals for the Federal Circuit and the newly created 
        U.S. Court of Appeals for Veterans Claims (CAVC). In making 
        this transfer of jurisdiction, Congress failed to address the 
        authority of the Federal Circuit and the CAVC to certify a case 
        as a class action. As a result of this oversight, the CAVC has 
        ruled that it does not have authority to entertain a class 
        action (see Lefkowitz v. Derwinski , 1 Vet.App. 439 (1991), and 
        the Federal Circuit has indicated the same. See Liesegang v. 
        Secretary of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 
        2002).
          The lack of class action authority has led to great injustice 
        and waste of the limited resources of the VA and the courts. To 
        demonstrate the injustice and waste that result from the 
        unavailability of the class action mechanism, we have set forth 
        below an illustrative case study taken from real events.
    Case Study: The Ongoing Battle Between the VA and Navy ``Blue 
        Water'' Veterans
          This case study involves the 5-year-old battle that is still 
        being fought between the VA and thousands of Vietnam veterans 
        who served on ships offshore the Republic of Vietnam during the 
        Vietnam War (hereinafter referred to as ``Navy blue water 
        veterans''). In section A below, we summarize this 5-year-old 
        battle being waged without the benefit of a class action 
        mechanism. In section B, we describe the more efficient and 
        just way the battle would have been waged if a class action 
        mechanism had been available. Finally, in section C, we 
        describe how the piecemeal way the battle is currently being 
        fought will inevitably result in dissimilar VA treatment of 
        similarly situated veterans.
    A.   The 5-Year-Old Battle Between the VA and Navy Blue Water 
        Veterans
                  From 1991 to 2002, the VA granted hundreds, if not 
                thousands of disability claims filed by Navy blue water 
                veterans suffering from one of the many diseases that 
                VA recognizes as related to Agent Orange exposure. 
                These benefits were awarded based on VA rules providing 
                that service in the waters offshore Vietnam qualified 
                the veteran for the presumption of exposure to Agent 
                Orange set forth in 38 U.S.C. Sec. 1116.
                  In February 2002, VA did an about face. It issued an 
                unpublished VA MANUAL M21-1 provision stating that a 
                ``veteran must have actually served on land within the 
                Republic of Vietnam . . . to qualify for the 
                presumption of exposure to'' Agent Orange. As a result, 
                all pending and new disability claims filed by Navy 
                blue water veterans for an Agent Orange-related disease 
                were denied unless there was proof that that the 
                veteran actually set foot on Vietnamese soil. In 
                addition, the VA began to sever benefits that had been 
                granted to Navy blue water veterans prior to the 2002 
                change in VA rules.
                  In November 2003, the CAVC convened a panel of three 
                judges and set oral argument to hear the appeal of Mrs. 
                Andrea Johnson, the surviving spouse of a Navy blue 
                water veteran who was denied service-connected death 
                benefits (DIC) by the Board of Veterans' Appeals on the 
                ground that her deceased husband, who died of an Agent 
                Orange-related cancer, had never set foot on the land 
                mass of Vietnam. See Johnson v. Principi, U.S. Vet. 
                App. No. 01-0135 (Order, Nov. 7, 2003). The legal 
                briefs filed by Mrs. Johnson's attorneys challenged the 
                legality of the 2002 Manual M21-1 provision mentioned 
                above. Thus, it appeared that the CAVC would issue a 
                precedential decision deciding the legality of VA's 
                set-foot-on-land requirement.
                  Six days before the oral argument, however, the VA 
                General Counsel's Office made the widow an offer she 
                could not refuse: full DIC benefits retroactive to the 
                date of her husband's death--the maximum benefits that 
                she could possibly receive. Because Mrs. Johnson did 
                not and could not file a class action, once she signed 
                the VA's settlement agreement, the oral argument was 
                canceled, the Court panel convened to hear the case was 
                disbanded, and the appeal was dismissed. Buying off the 
                widow allowed the VA to continue for the next 3 years 
                to deny disability and DIC benefits to Navy blue water 
                veterans and their survivors based on VA's new set-
                foot-on-land rule.
                  Some Navy blue water veterans and survivors who were 
                denied benefits by a VA regional office based on the 
                2002 rule gave up and did not appeal the RO's decision. 
                Some appealed the RO's decision to the Board of 
                Veterans' Appeals, which affirmed the denial. Some of 
                those who received a BVA denial gave up and did not 
                appeal the BVA's denial to the CAVC. And some of those 
                who were denied by the RO and the BVA did not give up 
                and appealed to the CAVC.
                  One of those who doggedly pursued his disability 
                claim all the way to the CAVC was former Navy Commander 
                Jonathan L. Haas. He filed his appeal in March 2004. 
                The CAVC ultimately convened a panel of the Court and 
                scheduled oral argument for January 10, 2006 to decide 
                Commander Haas' challenge to VA's set-foot-on-land 
                rule. This time, however, the VA did not offer to 
                settle. On August 16, 2006, a panel of three judges 
                unanimously ruled that VA's 2002 set-foot-on-land 
                requirement was illegal. See Haas v. Nicholson , 20 
                Vet.App. 257 (2006).
                  But this did not end the battle between the VA and 
                Navy blue water veterans. In October 2006, the VA 
                appealed the decision in Haas to the U.S. Court of 
                Appeals for the Federal Circuit, where it is currently 
                pending. Last fall, Secretary of Veterans Affairs R. 
                James Nicholson also ordered a moratorium at the 57 VA 
                regional offices and the Board of Veterans' Appeals 
                that prevents the ROs and the BVA from deciding any 
                claim filed by a Navy blue water veteran or survivor 
                based on an Agent Orange-related disease unless there 
                is proof that the veteran had actually set foot on 
                Vietnamese soil. VA estimates that the moratorium 
                covers 1,500 claims pending at the BVA and an untold 
                number of similar claims pending at the 57 ROs. This 
                moratorium will stay in effect at least until the 
                Federal Circuit decides the VA's appeal. A decision by 
                the Federal Circuit is not expected for another year.
                  Thus, if the VA ultimately loses its challenge to the 
                unanimous CAVC decision at the Federal Circuit, the VA 
                will nonetheless have succeeded in withholding 
                disability benefits from thousands of Navy blue water 
                veterans and survivors for the 6-year period from 2002 
                to 2008.
    B.   How This Battle Would Have Been Waged If A Veteran Could File 
        a Class Action
                  Compare the true events described above with how the 
                battle between the VA and Navy blue water veterans 
                would have been coordinated if a Federal court (the 
                Federal Circuit or the CAVC) had authority to certify a 
                case as a class action on behalf of similarly situated 
                VA claimants. Years ago, Mrs. Johnson could have asked 
                the Court with class action authority to certify her 
                lawsuit as a class action on behalf of the following 
                class Members: (1) Navy blue water veterans who (a) 
                have filed or henceforth file a VA disability claim 
                based on an Agent Orange-related disease and (b) never 
                set foot on the land mass of Vietnam and (2) all 
                surviving family members who filed or henceforth file a 
                DIC claim based on the death of such a Navy blue water 
                veteran from an Agent Orange-related disease.
                  If the Court certified Mrs. Johnson's lawsuit case as 
                a class action, the VA would not have been able to end 
                the case by buying her off. Class actions cannot be 
                dismissed merely because one class Member is granted 
                benefits. The Court could then have ordered the VA to 
                keep track of, but not decide, the pending claims of 
                all class Members until the parties filed their briefs 
                and the Court issued an opinion deciding the legality 
                of VA's set-foot-on-land requirement. This action would 
                have conserved the limited claims adjudication 
                resources of the VA by allowing the agency to 
                adjudicate other claims while the class action was 
                pending. When actually occurred instead is that the 
                regional offices and the Board expended scarce 
                resources adjudicating and denying thousands of claims 
                filed by Navy blue water veterans during the period 
                from 2002 to the fall of 2006, when Secretary 
                Nicholson's moratorium went into effect.
                  This action would also have conserved the resources 
                of thousands of disabled class Members and their 
                representatives. They would not have to complete and 
                submit notices of disagreement, substantive appeals 
                forms, and responses to VA correspondence in order to 
                keep their claims alive.
                  Then, after the Court resolved the legality of VA's 
                set-foot-on-land requirement, it could act to ensure 
                that all of the pending claims filed by class Members 
                were uniformly and promptly decided by the VA in 
                accordance with the Court's decision. And all of this 
                would have occurred well before 2008 because Mrs. 
                Johnson's earlier case would have led to the key Court 
                decision, not the later filed case of Commander Haas.
    C.   Why the Current Battle Will Inevitably Result In Dissimilar 
        Treatment of Similarly Situated Disabled Veterans and Their 
        Survivors
                  By definition, all of the Navy blue water veterans 
                and their survivors who have been denied benefits due 
                to the VA's set-foot-on-land rule are suffering from, 
                or are survivors of a veteran who died from, one of the 
                following diseases that the VA recognizes as related to 
                Agent Orange exposure: soft-tissue sarcomas, Hodgkin's 
                disease, lung cancer, bronchus cancer, larynx cancer, 
                trachea cancer, prostate cancer, multiple myeloma, 
                chronic lymphocytic leukemia, and diabetes mellitus 
                (Type 2). These are seriously disabling, often fatal 
                diseases.
                  Assume that the Federal Circuit ultimately agrees 
                with the unanimous panel of the CAVC and affirms its 
                ruling that VA's set-foot-on-land requirement is 
                unlawful. Further assume that Secretary Nicholson 
                agrees to comply with the Court's ruling, lifts his 
                moratorium, and orders the ROs and BVA to decide all of 
                the claims subject to the moratorium and belatedly pay 
                these disabled war veterans and their survivors--to the 
                extent that they are still alive--the many-years-worth 
                of retroactive disability or death benefits they were 
                long ago denied due to VA's set-foot-on-land 
                requirement.
                  Even if all this were done, the fact would remain 
                that hundreds, if not thousands of similarly situated 
                Navy blue water veterans and their survivors would 
                never receive the benefits that those whose claims were 
                subject to the moratorium would receive. That is 
                because VA's denial of their claims for disability or 
                death benefits for an Agent Orange-related disease 
                became final before Secretary Nicholson's moratorium. 
                To be specific, the following similarly situated VA 
                claimants are not subject to Secretary Nicholson's 
                moratorium and will never receive benefits based on 
                their claims:
                  Navy blue water veterans who filed a disability claim 
                and survivors of Navy blue water veterans who filed a 
                DIC claim that was denied by a VA regional office based 
                on its set-foot-on-land rule, and who either

                          did not file a notice of disagreement 
                        with the RO decision during the 1-year appeal 
                        period;
                          or filed a timely notice of 
                        disagreement, but failed to file a timely 
                        substantive appeal to the Board of Veterans 
                        Appeal; or
                          filed a timely notice of disagreement 
                        and a timely substantive appeal, received a 
                        decision from the Board of Veterans' Appeals 
                        denying their claim based on VA's set-foot-on-
                        land rule, and failed to file a timely appeal 
                        with the CAVC.

                  The number of these similarly situated claimants is 
                likely to be high. Veterans with seriously disabling 
                diseases often give up on their claim when the VA tells 
                them that they are not entitled to the benefits they 
                seek. Their disabilities deplete their energy and their 
                resources. Fighting the VA bureaucracy can seem a very 
                daunting task to a veteran suffering from cancer. Plus, 
                they are not lawyers and are not familiar with the 
                legal authorities relied upon the CAVC in Haas. When 
                the VA tells them they are not entitled to benefits 
                because they did not set foot on land in Vietnam, they 
                often believe that the VA must know what it is doing. 
                Thus, many of these disabled veterans simply give up 
                and don't appeal their cases all the way to the CAVC.
                  If the Federal Circuit rules in the favor of the Navy 
                blue water veterans, no law requires the VA to use 
                their computer systems to identify similarly situated 
                claimants who are not included in the Nicholson 
                moratorium. No law requires the VA to notify these 
                similarly situated claimants about the Court's 
                decision. And even if these similarly situated 
                claimants somehow found out about the Court decision 
                and reapplied, the VA would refuse to pay them the 
                retroactive benefits that it paid to the claimants 
                subject to the Nicholson moratorium because the VA 
                would conclude that its previous final denial of the 
                claim--which occurred before the Haas decision--was not 
                the product of ``clear and unmistakable error.''
                  Thus, the unavailability of a class action mechanism 
                dooms the claims of all similarly situated Navy blue 
                water veterans and their survivors who are not part of 
                the Nicholson moratorium. Legislative action is needed 
                to ensure that unjust situations like this are not 
                repeated in the future.

                                 
         Statement of Robert Vincent Chisholm, Past President,
              National Organization of Veterans' Advocates
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
    Thank you for the opportunity to present the views of the National 
Organization of Veterans' Advocates (``NOVA'') on the Challenges Facing 
the United States Court of Appeals for Veterans Claims (CAVC). NOVA is 
a not-for-profit Sec. 501(c)(6) educational organization created for 
attorneys and non-attorney practitioners who represent veterans, 
surviving spouses, and dependents before the Court of Appeals for 
Veterans Claims (``CAVC'') and on remand before the Department of 
Veterans Affairs (``DVA''). NOVA has written many amicus briefs on 
behalf of claimants before the CAVC and the United States Court of 
Appeals for the Federal Circuit (``Federal Circuit''). The CAVC 
recognized NOVA's work on behalf of veterans when it awarded the Hart 
T. Mankin Distinguished Service Award to NOVA in 2000. The positions 
stated in this testimony have been approved by NOVA's Board of 
Directors and represent the shared experiences of NOVA's members as 
well as my own 16-year experience representing claimants at all stages 
of the veteran's benefits system from the VA regional offices to the 
Board of Veterans Appeals to the CAVC as well as before the Federal 
Circuit.

                           BACKGROUND ON CAVC

    When a veteran files an appeal with the CAVC, the case is docketed 
with the Court and the docketing date is the trigger date for all 
filings. NOVA believes there are two critical time spans in the 
judicial review process that should be discussed. Firstly, the time it 
takes from the date a case is docketed until it is fully briefed. 
Second, the time it takes from the date the case is fully briefed until 
the judge or judges decide the appeal. Without reliable data on these 
two time periods, Congress cannot accurately assess how the CAVC 
functions. Under current rules, it takes at least 8 months from the 
date of docketing until a case is ready to be sent to a judge's 
chambers.During that 254 day window, the parties prepare the record 
that the CAVC will review and then file their briefs. Many cases filed 
with the CAVC never reach a judge's chambers because: (1) they are 
dismissed for jurisdictional reasons, e.g., the veteran did not file 
the appeal within 120 days or lacks a final BVA decision; or (2) the 
parties agree to a disposition of the claim, typically, by remanding 
the case back to the Board due to an error committed by the VA.
    NOVA is not aware of any data that captures the amount of time that 
it takes from the date a case is fully briefed until it is decided by 
the Court. While one could review each Court docket sheet to compile 
this information, that would be burdensome. A quick survey of 
decisions\1\ issued by the Court so far in the month of May 2007 shows 
the following:
---------------------------------------------------------------------------
    \1\ This data does not include writs of mandamus or EAJA petitions.


------------------------------------------------------------------------
                  Year Case Began                      Number of Cases
------------------------------------------------------------------------
2003:                                                                 1
2004:                                                                 9
2005:                                                                13
2006:                                                                 5
------------------------------------------------------------------------

    From 1995 through 2004, the number of appeals filed in the CAVC 
remained fairly steady in the 2100 to 2500 range. However, in 2005, the 
CAVC docket increased by one-third as the number of appeals filed that 
year rose to 3400 and in 2006 the number of appeals filed was 3700.\2\ 
NOVA believes the increase in the number of appeals filed is due to two 
primary reasons. Firstly, the Board of Veterans Appeals has issued more 
decisions over the last 2 years denying claims, and these veterans are 
appealing their claims to Court.\3\ Second, NOVA Members encounter many 
instances involving multiple appeals to the CAVC due to the CAVC's high 
remand rate and the Board's poor decisionmaking, veterans are stuck on 
the proverbial hamster wheel between the CAVC and the BVA. In some 
cases, veterans have been to Court three or four or five times on the 
same issue.
---------------------------------------------------------------------------
    \2\ This data is from the annual reports of the CAVC's and is 
available at http://www.vetapp.gov/documents/Annual--Reports.pdf.
    \3\ This data was obtained from the ``Report of the chairman of the 
board of Veterans' Appeals for Fiscal Year 2006 available at http://
www.va.gov/Vetapp/ChairRpt/BVA2006AR.pdf.
---------------------------------------------------------------------------
    The Court is taking important steps to decrease the amount of time 
it takes from the date the veteran files an appeal with the Court until 
a decision is reached. Firstly, over the last year Chief Judge Greene 
has recalled the retired judges, each of whomserved for 90 days. 
Second, the CAVC is changing its rules of practice regarding the record 
process, which could reduce the processing time by 4 to 6 months. Next, 
at the recent Bar and Bench conference, the CAVC explored methods to 
resolve cases through such measures as alternative dispute resolution 
and new pre-briefing conference procedures. Finally, the CAVC is 
committed to using the Federal Court E-Filing process that will also 
help cases move more quickly through the Court. NOVA supports these 
measures and believes that they represent realistic steps to help the 
Court move cases more expeditiously and control its increasing docket.
    Notwithstanding these positive measures at the CAVC, NOVA believes 
that Congress should consider the following recommendations to help 
veterans obtain justice faster in Court.
1.  Permit the CAVC to engage in de novo fact finding.
          Since the advent of judicial review of decisions from the 
        Board of Veterans' Appeals in 1988, the CAVC has remanded 
        approximately 65%-75% of the cases.\4\ A remand decision starts 
        with a determination that the VA mishandled the veteran's case 
        in some way. The Court rarely grants benefits, but instead 
        sends the case back to VA with an explanation of what was done 
        wrong and a direction that the VA ``re-adjudicate'' the claim. 
        The result of so many remands is a loss of accountability at 
        the VA as there are no negative consequences for the VA. The 
        case is simply returned to the VA for another several years of 
        adjudication. All the negative consequences accrue to the 
        veteran, whose case is returned to years of limbo. It is 
        difficult for the veteran to regard a remand as a victory, even 
        though the VA has been determined to have erred.
---------------------------------------------------------------------------
    \4\ See footnote 2.
---------------------------------------------------------------------------
          Many of these cases are remanded from the CAVC to the Board 
        because of inadequate findings and conclusions. Under the 
        present statutory scheme as set forth in 38 U.S.C. 
        Sec. 7261(c), the CAVC is expressly forbidden from engaging in 
        fact finding in the first instance. NOVA believes this section 
        should be amended to permit the CAVC to engage in de novo fact 
        finding of adverse factual determinations by the Board. Under 
        such a scheme, the CAVC should also be required to apply the 
        benefit of the doubt which is codified in 38 U.S.C. 
        Sec. 5107(b). The net result of such an amendment would be 
        fewer cases remanded from the Court to the Board due to 
        inadequate findings. These veterans are elderly and often times 
        do not survive the remand process. Permitting the Court to 
        engage in de novo fact finding will provide veterans with the 
        resolution they deserve during their lifetime.
          The Courts of Criminal Appeals for the military could serve 
        as models for this type of fact finding. Under 10 U.S.C. 
        Sec. 866(c), those courts can ``weigh the evidence, judge the 
        credibility of witnesses, and determine controverted questions 
        of fact, recognizing that the trial court saw and heard the 
        witnesses.'' The authority in Sec. 866 (c) is exercised with 
        restraint. According to the statute, the authority is tempered 
        by deference to trial forums when the trial forum has had the 
        advantage of assessing the credibility of witnesses upon their 
        demeanor and testimony at trial.
          NOVA believes the CAVC needs this authority to do for the VA 
        and BVA what they have not done competently to date, and, by 
        assessing evidence on appeal, the CAVC will have a tool that it 
        could use when appropriate the disrupt the ``hamster wheel'' of 
        veterans benefits law and reach finality.
2.  Congress Should Amend Title 38 To Permit Substitution of Parties.
          Under the CAVC's case law, when the veteran dies while the 
        case is in Court, substitution is not permitted and the case is 
        dismissed. Congress needs to consider the plight of our World 
        War II veterans who are dying at the rate of 1,056 a day, 
        according to Jose Llamas, a spokesman for the Department of 
        Veterans Affairs as quoted in the Washington Post on April 15, 
        2005. A veteran who is 85 years of age will have a life 
        expectancy of about 6 years and will have a 42% chance of 
        living to age 90. See National Vital Statistics Report, Vol 54, 
        No 14, April 19, 2006, Tables A&V. Congress has the power to 
        truly provide justice for these veterans who are elderly and 
        who do not typically survive. In the past few years, 10 of my 
        clients have died during the appeals process. A quick search on 
        Westlaw revealed that in the last few years over 100 appeals 
        have been dismissed by the CAVC because the veteran died while 
        the case was pending before the Court. The practical effect of 
        this is that a surviving spouse or dependent is not permitted 
        to step into the shoes of the deceased veteran in Court; 
        instead, they are required to initiate proceedings anew at the 
        Regional Office. A veteran who has appealed his case to the 
        Court most likely has been in the system for 5-7 years, and to 
        force the surviving spouse or dependent child to commence this 
        process all over is fundamentally unfair. NOVA recommends that 
        Congress amend Title 38 to permit the substitution of the next 
        of kin or estate when the veteran dies while the case is 
        pending before the Court. If the prohibition on substitution is 
        permitted to stand, the VA is rewarded for its delay and 
        deserving veterans and their heirs suffer the consequences.
3.  Congress Should Require the CAVC To Report Annually the Following 
        the Information:

                $  The number of appeals filed.

                $  The number of petitions filed.

                $  The number of applications filed under section 2412 
                of title 28.

                $  The number of cases resolved before a judge issues a 
                decision.

                $  The number of cases in which a single judge, panel 
                of judges or the full court issues a decision.

                $  The number of oral arguments

                $  The median time from filing to disposition.

                $  The median time it takes from the date a case is 
                fully briefed until a decision is reached.

          NOVA believes that the information listed above will assist 
        Congress in analyzing the caseload and work load of the CAVC.
4.  Congress Should Be Prepared To Expand The Number of Judges on the 
        CAVC.
          NOVA believes that if the number of notices of appeals filed 
        with the CAVC continues to increase, Congress should be 
        prepared to expand the number of judges on the Court by two. 
        NOVA believes if the number of appeals filed with the CAVC 
        increases to 5000 or more a year, then Congress should add two 
        more judges. These new judges will be necessary to maintain 
        current processing times in Court. NOVA believes that Congress 
        needs to be proactive in this area because the number of 
        appeals is likely to continue to increase. Furthermore, 
        Congress should also consider adding two judges for every two 
        thousand additional appeals filed.
5.  The United States Court of Appeals for the Federal Circuit.
          NOVA believes that Congress should not make any changes to 
        the review that is provided by the United States Court of 
        Appeals for the Federal Circuit. Under Title 38 section 7292, a 
        veteran who loses a decision at the CAVC has the right to 
        appeal the decision to the Federal Circuit. Review in the 
        Federal Circuit is limited to questions of statutory 
        interpretation and regulatory interpretation. In addition, when 
        the VA issues a new regulation, a party can file a direct 
        action in the Federal Circuit to challenge the validity of that 
        regulation. This review has been essential for both veterans 
        and the VA as the Federal Circuit has reversed the CAVC in a 
        number of important decisions. In NOVA's view, the jurisdiction 
        of the Federal Circuit in veterans' cases should not be 
        contracted or eliminated, and it may be necessary in the future 
        to enlarge it. In Hodge v. West, 155 F.3d 1536 (Fed. Cir. 
        1998), the Court reversed the CAVC's interpretation of a VA 
        regulation of what constituted new and material evidence to 
        reopen a final claim. Prior to the Federal Circuit's decision 
        in Hodge, veterans were required to meet a higher threshold for 
        new and material evidence and as a result many claims were lost 
        by veterans. Recently, the Federal Circuit issued a landmark 
        decision in the VA's favor in Smith v. Nicholson, 451 F.3d 1344 
        (Fed. Cir. 2006) when it found that the CAVC had misconstrued 
        the VA's regulation regarding claims for disability benefits 
        for tinnitus. Finally, the Federal Circuit issued a landmark 
        decision on May 16, 2007 interpreting the Veterans Claims 
        Assistance Act and emphasizing the Congressional intent that 
        the VA system remain pro-claimant.

                                 
                      Statement of Brian Lawrence,
  Assistant National Legislative Director, Disabled American Veterans
Mr. Chairman and Members of the Subcommittee:
    On behalf of the 1.3 million Members of the Disabled American 
Veterans (DAV), I am pleased to present our views on challenges facing 
the U.S. Court of Appeals for Veterans' Claims (the Court). As our 
Nation prepares to celebrate Memorial Day and commemorate our military 
veterans, it is important to remember that the best way to honor their 
bravery and sacrifice is to provide a system of support that is 
reflective of a grateful nation that cherishes those who defend our 
safety and freedom. We commend the Subcommittee for its continued 
efforts to improve this system and the benefits and services it 
delivers to disabled veterans and their families.
    The Court is a Federal court of appeals that was established by the 
Veterans' Judicial Review Act 1988. Congress created the Court to 
review decisions rendered by Department of Veterans Affairs (VA) Board 
of Veterans' Appeals (the Board or BVA). Veterans who receive 
unfavorable benefit claims determinations from their local VA offices 
may appeal to the Board. Unlike the Court, the Board is a part of the 
VA. Members of the Board review decisions made by local VA offices and 
issue decisions on appeals. Should a veteran disagree with the Board's 
decision, he or she may further appeal to the Court, which is 
responsible for conducting legal review to determine if the final Board 
decision contains prejudicial error or is legally correct. section 7252 
(a) of title 38 United States Code authorizes the Court to affirm, 
modify, or reverse a Board decision, or to remand the matter as 
appropriate. When the Court remands a case, it sends it back to the BVA 
for further action.
    The greatest challenge facing the Court is the backlog of appeals. 
This translates to potential financial hardship for many veterans 
awaiting benefits. Due to long delays in claims processing at the VA, 
it can take years for appeals to reach the Court. Because a significant 
number of disabled veterans are elderly and in poor health, many do not 
live to witness resolution to their claims. Those who do survive are 
understandably discouraged. Veterans deserve to have their pending 
issues resolved fairly and in a reasonable amount of time. In July of 
2006, Senator Larry Craig, then Chairman of the Senate Veterans' 
Affairs Committee (SVAC), noted that the accumulation of veterans' 
appeals at the Court was unacceptable. Hearings were held to address 
the problem and recalling retired judges was an agreed upon solution to 
help clear the backlog. Senator Craig noted in a press release in 
January 2007 that the increase to the Court staff attained by recalling 
retired judges had a desirable effect and that productivity was at or 
near an all time high.
    The DAV did and does support recalling retired judges as a remedy 
to the backlog problem. However, while this remedy has had an immediate 
positive effect, it does not address a primary cause for accumulation 
of cases at the Court. The Court over the years has shown a reluctance 
to reverse errors committed by the Board in its decisions. Rather than 
addressing an allegation, or allegations, of error raised by an 
appellant, the Court has shown a propensity to vacate and remand such 
cases to the BVA based on the confession of error by the Secretary, who 
has no right of appeal to the Court, based on the Board's failure to 
provide adequate reasons or bases. Further, once the Court remands a 
case based on one alleged error committed by the Board in its decision, 
the Court will generally decline to review other alleged errors raised 
by an appellant. Instead, the Court remands the remaining alleged 
errors to the Board on the basis that an appellant is free to present 
those errors to the Board even though an appellant is left with the 
possibility that the Board could repeat on remand the same mistakes 
that it had previously. Such a remand leaves unresolved the errors 
allegedly committed by the Board, reopens the appeal to unnecessary 
development and further delay and further overburdens a system 
straining to meet growing backlogs, and inevitably requires an 
appellant to invest many more months and perhaps years of his or her 
life in order to obtain a decision or decisions that the appellant 
should get from the Court on an initial appeal. As a result, many cases 
on appeal to the Court are there for the second, third, or fourth time.
    In addition to postponing decisions and prolonging the appeal 
process, the Court's reluctance to reverse Board decisions provides an 
incentive for the VA to avoid admitting error and settling appeals 
before they reach the Court. By merely passing claims along rather than 
resolving them at the earliest stage in the process, the VA contributes 
to the backlog by allowing a greater number of cases to go before the 
Court. If the Court would reverse decisions more frequently, we believe 
the VA would be discouraged from standing firm on decisions that are 
likely to be overturned. An indicator of how often this happens is the 
amount of fees paid under the Equal Access to Justice Act (EAJA). EAJA 
fees are paid when the VA is in error. In 2006, 1,079 EAJA payments 
totaling approximately $5.4 million were made by VA.
    The DAV encourages the Subcommittee to introduce legislation to 
amend section 7261 of title 38 United States Code to include the 
following provisions:

        (a)   In any action brought under this chapter, the Court of 
        Appeals for Veterans'' Claims, to the extent necessary to its 
        decision and when presented, shall----

                (1)  on a de novo basis:

                        (A)  decide all relevant questions of law:
                        (B)  interpret constitutional, statutory, and 
                        regulatory provisions: and
                        (C)  determine the meaning or applicability of 
                        the terms of an action of the Secretary

        (b)  The Court shall decide all assignments of error properly 
        presented by an appellant

    We believe that the above noted changes would help break the 
perpetual cycle of remand and appeal. The DAV also believes that to 
provide Congress with an accurate measure of the Court's performance, 
the Court should submit an annual report to Congress that includes 
three categories:

1.  Number of BVA decisions that were affirmed
2.  Number of dispositions based on (a) joint motion for remand, and 
(b) settlement
3.  Number of dispositions reversed or remanded by a judge's decision

    Actions that fall under category two are of an administrative 
nature and are generally accomplished by the Clerk of the Court. 
Categories one and three must be accomplished by the Court's judges, 
thus presenting the information in this suggested format would give 
Congress a clearer picture of the Court's accomplishments. The annual 
report should also include the number of memorandum decisions made by 
each judge.
    The DAV supports the establishment of a dedicated Veterans' 
Courthouse and Justice Center. The leased space currently occupied by 
the Court is inadequate for the level of staff necessary to complete 
its caseload. During the most recent DAV National Convention, our 
Members voted to again adopt a long standing resolution calling for the 
Court to have its own facility. Our resolution envisions an 
architectural design and location that is reflective of the United 
States' respect and gratitude for veterans of military service. Rather 
than designating the office building where the Court currently leases 
space as the permanent facility, we encourage the Subcommittee to 
support the construction of a new Veterans' Courthouse and Justice 
Center that features the design and location worthy of its status.
    Mr. Chairman and Members of the Subcommittee, the DAV appreciates 
the opportunity to present our views on this issue. We look forward to 
our continued work with the Subcommittee to serve our Nation's disabled 
veterans and their families.

                                 
                 Statement of the Hon. James P. Terry,
   Chairman, Board of Veterans' Appeals, U.S. Department of Veterans 
                                Affairs
    Good morning, Mr. Chairman. I am happy to discuss with you, with 
Ranking Member Lamborn, the Members of the Subcommittee, and your 
staff, the challenges facing the United States Court of Appeals for 
Veterans Claims (Court or Veterans Court). In doing so, we will provide 
our views as to what we believe are the reasons for the increase in the 
number of appeals to the Court, whether we can expect that trend to 
continue, and what measures are being taken to assist the Veterans 
Court in handling this increased workload.
    With me today 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 firsthand 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. For 
example, 10 years ago, in Fiscal Year (FY) 1997 the Veterans Court 
received 2,229 new cases. By contrast, in FY 2005, the Veterans Court 
received 3,466 new cases, and it received 3,729 new cases in FY 2006. 
So far this fiscal year, the Veterans Court is averaging in excess of 
the numbers of new cases received last year. 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 I testified before the full Committee last year, two of the 
Board's most important initiatives are to: 1) contain and reduce the 
backlog of appeals by increasing decision productivity, while 
maintaining high quality; and 2) improve timeliness and service to 
veterans by eliminating avoidable remands in order to issue more final 
decisions.
    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 FY 2003, the Board issued 31,397 decisions, with 
a remand rate of 42.6 percent. In FY 2004, while the number of 
decisions issued increased to 38,371, the remand rate increased to 56.8 
percent. In FY 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. In FY 2006, we issued 39,076 decisions, with 
a remand rate of 32.8 percent. We expect to issue about 40,000 
decisions by the end of this fiscal year, while maintaining as low a 
remand rate as possible.
    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, while the Board issued nearly 5,000 
more decisions in FY 2006 than in FY 2005, the number of decisions in 
which all benefits sought were denied also increased from 9,300 in FY 
2004 to 13,032 in FY 2005, and to 18,107 in FY 2006. 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 FY 2004 to 7,096 in FY 2005, 
and to 7,537 in FY 2006, 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 FY 2004, 
41,816 cases in FY 2005, 41,802 in FY 2006, and expects to receive 
43,000 cases in FY 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 and their families 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 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 EAJA 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 FY 2005 and FY 2006 was comprised of 
such fee applications, and that percentage seems to be similar this 
fiscal year. 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.
    It also should be noted that there have been occasional increases 
in the number of new cases over the years resulting from 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 
were hundreds of such cases filed in the Veterans Court over the last 3 
years until that issue was resolved by the Federal Circuit last year. 
Such temporary increases are difficult to predict and can be difficult 
to manage because they are unpredictable in both timing and effect and 
have immediate applicability to all appeals at all stages in the VA 
adjudication system.
    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, with only those documents cited by the 
parties in their briefs to be required in cases where the veteran is 
represented. This will speed the submission of cases to the judges for 
decision. We also understand that the Veterans Court is also studying 
the feasibility of electronic filing.
    The Veterans Court could better use certain tools already available 
to it. For example, the Veterans Court could adopt procedures that 
welcome, rather than deter, summary motions in appropriate cases. In a 
recent Judicial Conference, the Court carefully discussed this 
possibility. We are hopeful that the plan to revamp the preparation of 
the record on appeal, which is currently under study and active 
consideration by the Court, 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 
last year, 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 until the Federal Circuit reversed 
their decision.
    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. We should 
note that the Chief Judge has sought to address this situation by 
securing the recall of retired judges to help address backlogged cases.
    Finally, I note that the Veterans Court has had their most 
productive year ever in 2006. They not only decided a total of 2,842 
cases, but adjudicated 1,152 EAJA applications and heard 22 oral 
arguments, while processing 382 appeals to the Federal Circuit.
    This concludes my testimony. Mr. Campbell and I would be pleased to 
answer any questions you or your colleagues might have.

                                 
                   MATERIAL SUBMITTED FOR THE RECORD

             Disability Claims Appeals Swamp Veterans Court

                 By Dennis Camire, Gannett News Service

                               USA Today

                      Updated 7/13/2006 5:29 PM ET

    WASHINGTON--Veterans appealing disability claims and other issues 
may soon be waiting much longer for decisions.
    The U.S. Court of Appeals for Veterans Claims' case backlog has 
more than doubled in the past 2 years to 5,800. If the trend continues, 
veterans could be waiting more than 3 years for a decision from the 
court, said Sen. Larry Craig, R-Idaho, chairman of the Senate Veterans 
Affairs Committee. Currently, it takes a year, on average, for a case 
to go through the court.
    ``With thousands of wounded servicemembers returning from Iraq and 
Afghanistan, we must ensure that our veterans will receive timely 
decisions on their claims,'' Craig said at a Committee hearing on the 
issue.
    For Irving M. Levin, 83, a World War II veteran appealing a 
disability claim decision by the Veterans Affairs Department to the 
court for the third time, time is running out.
    Levin, a former U.S. Army Air Forces flight engineer who lives in 
Stuart, Fla., was hit by a flying chunk of metal when his B-29 bomber 
crash-landed on Iwo Jima in April 1945. Levin, who originally filed his 
disability claim in 1988, said his injury led to a spinal problem 
requiring three back surgeries.
    ``I've had nothing but grief from this thing (VA disability claim 
process),'' said Levin, who uses a walker and a wheelchair to get 
around. ``It's got to the point that it is running my life.''
    Each time Levin's case has come to the appeals court, it has been 
sent back to the VA for more development, medical opinions and 
clarifications. Each step has required months or years.
    Irving said it seems like the VA is waiting for him to give up or 
die. But, he said, ``I'm not a quitter.''
    Joe Violante, legislative director of Disabled American Veterans, 
said the long processing times for cases ``suggest inadequate 
resources, the need for increased efficiency or both.''
    ``Disabled veterans who are often elderly and quite sick must wait 
unacceptably long periods of time for resolution of their appeals,'' he 
said. ``The protracted delay creates a hardship for many.''
    Still, Appeals Court Chief Judge William P. Greene says he expects 
a trend in increased caseloads to continue. In the past 2 years, it's 
increased from 200 to more than 300 a month, outpacing the 7-judge 
court's ability to render decisions.
    In the first half of this year, the court stepped up its decision 
process, handing down 1,564 decisions but still receiving 1,932 new 
cases.
    Greene said he couldn't fully explain why the increase is taking 
place but attributes some of it to the VA deciding more cases and more 
veterans becoming more aware of their ability to appeal VA decisions to 
the court.
    James P. Terry, chairman of the Board of Veterans Appeals in the 
VA, said cases have grown more complex and increased in the number of 
issues to decide and the cases create much larger records to review.
    ``The problem of backlogs will be a theme that continues into the 
future unless steps are taken to reduce . . . appeals or to employ an 
expeditious way to dispose of them,'' he said.
    Greene said the court is considering several different ways to 
increase its productivity without hurting due process or limiting 
judicial review.
    ``We are looking for innovative ways to best meet the demands of an 
increased docket,'' he said.
    One way is to recall the court's six retired judges, who could 
serve up 180 days each year, to help reduce the backlog, Greene said.
    Another strategy would be to have judges preside over settlement 
conferences, which could decide cases without going through a full 
court hearing, Greene said.
    Other efforts are aimed at reducing the number of documents filed 
for each case, issuing summary judgments without written explanations 
in some cases and implementing an electronic case management system.

                                 
                 Some Veterans Die Waiting for Benefits

              By JAMES W. CRAWLEY, National Correspondent

                       Media General News Service

                            October 18, 2006

    WASHINGTON-- Thousands of veterans, many who fought in World War 
II, Korea and Vietnam, have been waiting years for their disability 
claims to be decided by a little-known appeals court here.
    The delays have been so long that some veterans have literally died 
waiting.
    ``The backlog has never been longer than now,'' said Randy Reese, 
national service director for Disabled American Veterans.
    The appeals court is at the crest of a bureaucratic tsunami that 
has hundreds of thousands of veterans waiting months and, more often, 
years for disability benefits. With one in four veterans of the battles 
in Iraq and Afghanistan already filing for VA disability benefits, the 
wait is likely to get longer.
    The U.S. Court of Appeals for Veterans Claims is the last resort 
for most veterans whose claims for disability payments have been 
denied.
    Its seven judges, appointed by the president for 15-year terms, 
review cases from the VA's Board of Veterans' Appeals and determine 
whether the VA erred in denying claims or in determining the level of a 
veteran's disability.
    During the last year, the appeals court received 3,729 new cases--a 
record, said Norman Herring, the court's clerk and executive officer. 
At the same time, it decided 2,842 cases.
    More than 300 new cases are filed monthly, Herring said, and the 
court now has 6,080 pending cases.
    Congress and veterans organizations are pressuring the appeals 
court to eliminate the backlog, which is blamed on changes in veterans' 
benefits law, the loss of experienced judges and a marked increase in 
claims.
    Sen. Larry Craig, R-Idaho, chairman of the Senate Veterans Affairs 
Committee, predicted the backlog could reach 10,000 cases in 5 years.
    ``The bottom line is that, if something is not done soon to reverse 
these trends, veterans seeking justice from the court may have to wait 
in a line several years long to get their cases in front of a judge,'' 
Craig said.
    William Bolin is one of those veterans waiting in line.
    Bolin of Winston-Salem, N.C., is 75 and a former Air Force pilot. 
He wants to increase his service-connected disability rating to 50 
percent. If he wins, he will likely get free VA medical care and enough 
money to pay bills and maintain his house.
    ``I can't get a paying job because I can't keep up with healthy 
people,'' Bolin said, referring to a bum leg, injured in a recreational 
plane crash while in the Air Force. He also suffers seizures, which he 
blames on head injuries suffered in the crash.
    He says he has had trouble holding a regular job since he left the 
Air Force and therefore doesn't qualify for Social Security benefits.
    ``We should take care of our veterans, but I don't think they're 
taking care of me,'' Bolin said.
    He filed his original claim 7 years ago and it finally reached the 
appeals court in March 2005.
    Bolin, who has been hospitalized twice this year, fears he may die 
before his case is settled.
    It is a fear that is too often realized by veterans.
    His attorney, Dan Krasnegor who works for a Richmond, Va., law firm 
that specializes in veterans' appeals, has had about 40 clients die 
before their cases were decided by the court.
    ``When a veteran dies, the general rule is their claim dies with 
them,'' said Krasnegor.
    The backlog of veteran benefit claims is as chronic as an old 
shrapnel wound.
    The Government Accountability Office has written numerous reports 
illustrating delays and inefficiencies in the claims process.
    The veterans appeals court ``is at the top of the chain,'' said 
Steve Smithson, the American Legion's deputy director of claim 
services. ``You have to look at the bottom of the chain to find the 
reason for all the appeals.''
    Veterans' claims for disability payments, educational benefits, 
home loans or other compensation begin at any of 57 regional offices.
    The number of initial disability claims rose from 578,773 in 2000 
to 788,298 in 2005, a 36-percent increase.
    The Department of Veterans Affairs takes an average of 129 days to 
make an initial decision. It hopes to reduce that to 115 days, said 
Michael Dusenbery, the Veterans Benefits Administration's southern area 
director.
    The backlog begins at the regional office, argue many veterans 
groups.
    ``If they got the decision right in the first place, there would be 
fewer appeals to the board and less of a backlog,'' said Roy Spicer, 
DAV national appeals officer.
    Last year, 47,136 claims were appealed to the Board of Veterans' 
Appeals. More than half of regional offices' decisions that are 
appealed to the board are reversed or sent back to local offices for 
further action.
    A recent annual report estimated the average appeal time is 29 
months. Add another 190 days on average, if the board sends the case 
back to the regional office for further work.
    If a veteran is still not satisfied, he or she can bump up the case 
to the veterans' appeals court, which averages more than a year to 
decide a case, court statistics show.
    The situation has shown signs of improvement in recent months.
    Two retired judges have been recalled for 90-day terms to help 
reduce the backlog. As a result, said Herring, the court decided more 
cases than it received during September.
    The delays and red tape irk veterans.
    ``There's a lot of frustration because a lot of folks want the 
system to give them something it's not designed to do,'' said 
Krasnegor. ``If you're trying to get justice, it's not going to give 
you that.''

                                 

                 United States Court of Appeals for Veterans Claims
                                                    Washington, DC.
                                                       June 5, 2007
Hon. John J. Hall
Chairman
Subcommittee on Disability Assistance
and Memorial Affairs
Committee on Veterans' Affairs
U.S. House of Representatives
335 Cannon House Office Building
Washington, DC 20515

Dear Mr. Chairman:

    During the course of the May 22, 2007, hearing on ``Challenges 
Facing the U.S. Court of Appeals for Veterans Claims,'' you asked for 
my opinion on appellate review of this Court's decisions by another 
Federal appellate court, the U.S. Court of Appeals for the Federal 
Circuit (Federal Circuit). I offered to submit my comments in writing, 
for the record.
    I thank you for your question and again appreciate your interest in 
the challenges facing the U.S. Court of Appeals for Veterans Claims 
(USCAVC). There has recently been Congressional inquiry as to whether 
review of USCAVC decisions by the Federal Circuit should be eliminated 
and that, like decisions of the United States Court of Appeals for the 
Armed Forces (USCAAF), appeals of our decisions should go directly to 
the Supreme Court of the United States (Supreme Court) by writ of 
certiorari. To proffer an opinion or answer to your question, I believe 
that it is instructive to examine the history of serial appellate 
review of the decisions of the USCAAF, which is another Article I 
court.

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 comments on this subject.

II. THE POTENTIAL BENEFITS OF ADDITIONAL APPELLATE REVIEW

    Firstly, it is necessary to examine 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 adjudication 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 database 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 timeframes 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 18 years; it has decided over 25,000 cases and has 
written 20 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. 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 10 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 one 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), cert. denied, 127 S.Ct. 1147 (2007)..
    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

    It is useful to compare the USCAVC to the USCAAF. Firstly, 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 servicemember; 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 U.S.C. Sec.    VA regional office adjudication
                                                                                                                836)             (38 U.S.C. Chapter 51)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2)                                                                   Below Court Level
                                                                                         Review by military Court of       Review by Board of Veterans'
--------------------------------------------------------------------------------------------------------------------------------------------------------
3)                                                                      Article I
                                                                                    Appeal or petition to USCAAF (10   Appeal or petition to USCAVC (38
--------------------------------------------------------------------------------------------------------------------------------------------------------
4)                                                                    Article III
                                                                                                                None      Appeal to Federal Circuit (38
--------------------------------------------------------------------------------------------------------------------------------------------------------
5)                                                             U.S. Supreme Court
                                                                                           Upon petition for writ of          Upon petition for writ of
--------------------------------------------------------------------------------------------------------------------------------------------------------



    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.
    I appreciate your interest, and you have my very best wishes.

            Sincerely,

                                             William P. Greene, Jr.
                                                        Chief Judge

cc: Hon. Doug Lamborn
Ranking Member

                                 
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