[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:
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ACTIONS/REVIEW USCAAF USCAVC
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1) Initial Action Court Martial (10 U.S.C. Sec. VA regional office adjudication
836) (38 U.S.C. Chapter 51)
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2) Below Court Level
Review by military Court of Review by Board of Veterans'
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3) Article I
Appeal or petition to USCAAF (10 Appeal or petition to USCAVC (38
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4) Article III
None Appeal to Federal Circuit (38
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5) U.S. Supreme Court
Upon petition for writ of Upon petition for writ of
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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