[Senate Hearing 110-360]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-360
 
  OVERSIGHT HEARING ON PERFORMANCE AND STRUCTURE OF THE UNITED STATES 
                  COURT OF APPEALS FOR VETERANS CLAIMS

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

                                HEARING

                               BEFORE THE

                     COMMITTEE ON VETERANS' AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 7, 2007

                               __________

       Printed for the use of the Committee on Veterans' Affairs


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
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                     COMMITTEE ON VETERANS' AFFAIRS

                   Daniel K. Akaka, Hawaii, Chairman
John D. Rockefeller IV, West         Richard Burr, North Carolina, 
    Virginia                             Ranking Member
Patty Murray, Washington             Arlen Specter, Pennsylvania
Barack Obama, Illinois               Larry E. Craig, Idaho
Bernard Sanders, (I) Vermont         Johnny Isakson, Georgia
Sherrod Brown, Ohio                  Lindsey O. Graham, South Carolina
Jim Webb, Virginia                   Kay Bailey Hutchison, Texas
Jon Tester, Montana                  John Ensign, Nevada
                    William E. Brew, Staff Director
                 Lupe Wissel, Republican Staff Director


                            C O N T E N T S

                              ----------                              

                            November 7, 2007
                                SENATORS

                                                                   Page
Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii........     1
Burr, Hon. Richard, Ranking Member, U.S. Senator from North 
  Carolina.......................................................     2
Craig, Hon. Larry E., U.S. Senator from Idaho....................     3
Brown, Hon. Sherrod, U.S. Senator from Ohio......................     4

                               WITNESSES

Greene, Hon. William P., Jr., Chief Judge, United States Court of 
  Appeals for Veterans Claims....................................     5
    Prepared statement...........................................     8
    Response to written questions submitted by Hon. Richard Burr.    22
Campbell, Randall R., Assistant, General Counsel U.S. Department 
  of Veterans Affairs............................................    25
    Prepared statement...........................................    26
Cohen, Richard Paul, President, National Organization of 
  Veterans' Advocates, Inc.......................................    27
    Prepared statement...........................................    28
Cote, Christine, Litigation Attorney, National Veterans Legal 
  Services Program...............................................    32
    Prepared statement...........................................    34
Violante, Joseph A., National Legislative Director, Disabled 
  American Veterans..............................................    39
    Prepared statement...........................................    40


  OVERSIGHT HEARING ON PERFORMANCE AND STRUCTURE OF THE UNITED STATES 
                  COURT OF APPEALS FOR VETERANS CLAIMS

                              ----------                              


                      WEDNESDAY, NOVEMBER 7, 2007

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:34 a.m., in 
room SD-562, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka, Chairman of the Committee, presiding.
    Present: Senators Akaka, Brown, Burr, and Craig.

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

    Senator Akaka. Aloha. This hearing will come to order.
    This hearing continues the Committee's efforts to ensure 
that veterans' claims are processed and adjudicated in a timely 
and accurate manner. Our focus today will be on the performance 
and structure of the Court of Appeals for Veterans Claims. I am 
pleased that we are once again joined by Chief Judge Bill 
Greene. A few months ago, I had the opportunity to meet with 
Judge Greene in his chambers. I want to say thank you for being 
a most hospitable host. I appreciated the time the Court and 
its staff took to meet with me, and I look forward to expanding 
my understanding of the Court's operation and its operations 
today.
    For many veterans, the claims process can be an arduous 
ordeal. By the time a claim reaches the Court of Appeals for 
Veterans Claims, a veteran may have spent years navigating 
through the VA system awaiting final resolution of a claim. 
Veterans deserve to have their pending issues resolved fairly 
and in a reasonable amount of time. Ensuring the Court has 
adequate staffing and resources and uses them in an efficient 
manner will go a long way to meeting these goals.
    Today I hope we will hear what is working well at the Court 
and what areas might be in need of additional oversight or 
legislative assistance.
    Judge Greene, I hope to get a status update from you about 
the various means that you are utilizing for the Court to 
reduce its pending caseload. In addition, I hope that you will 
expound on the legislative changes that you have recommended 
which might benefit the Court and, therefore, this Nation's 
veterans.
    I want to thank you again and all of our witnesses for 
joining us today, and I look forward to today's discussion.
    Senator Burr?

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

    Senator Burr. Mr. Chairman, thank you for holding this 
hearing. Judge Greene, welcome, as I welcome all of our 
witnesses today.
    Almost 20 years ago, Congress created this Court for a very 
important purpose: to provide ``fundamental justice'' to 
veterans and their families who are seeking veterans' benefits. 
In my view, to fulfill that purpose, everyone who comes before 
the Court must be provided with a prompt decision because, as 
we all know, justice delayed is justice denied.
    Chief Judge Greene took a big step in that direction last 
year by bringing retired judges back to work, and, Judge 
Greene, I would like to thank you for that. In fact, with the 
help of those retired judges, the Court provided over 4,800 
decisions to veterans and their families last year. That is 
almost 50 percent more decisions than any year in the Court's 
history. It is an impressive milestone.
    While I congratulate the Court on that accomplishment, 
today we need to focus on how to meet the current and future 
challenges that the Court is facing. And there are many.
    The Court is receiving record levels of incoming cases.
    In fact, there were over 4,600 new cases in fiscal year 
2007, which is almost 25 percent more than in any prior year.
    The Court today has almost 6,300 pending cases, which is 36 
percent more than 2 years ago and 4,000 more than 10 years ago.
    At least 750 cases are already awaiting action by the 
Court, and 3,700 more may be ready for a decision within the 
next year.
    The median number of days to decide cases is now 416, which 
is almost 20 percent higher than just last year.
    And as some of our witnesses will testify today, the Court 
will often take 1 to 2 years to resolve even simple cases.
    With these staggering statistics, it seems clear that 
something must be done soon to make sure no veteran will have 
to wait so long for a decision, now or in the future. I know 
that the Court and some of our witnesses today have made 
suggestions for how to do that. Some of those options include 
adding more judges, authorizing magistrates, and using 
alternative dispute resolution.
    But, the way I see it, before we can find the right path 
forward we need to have a clear understanding of the Court's 
workload, who is actually doing the work, and where are the 
bottlenecks. For example, we need to know how many cases are 
ultimately decided by a judge, how many are handled by the 
clerk of the Court, and how many are resolved after the parties 
have reached an agreement. We need to know how long it takes 
for the parties to fulfill their responsibilities, such as 
filing briefs, and how long it takes the Court to make a 
decision once the parties have done their part.
    It seems to me that we cannot take steps to eliminate 
delays until we know the answers to these questions. I hope 
today the Committee will get some answers so that we can start 
working on solving these problems now and for the future.
    Also, Mr. Chairman, as we consider what actions this 
Committee should take, I think it is important for the Court to 
take steps to effectively use all of the existing resources 
they have. As long as the Court has such a massive caseload, I 
hope the Court will continue to rely on the experience and the 
expertise of its retired judges for whatever assistance they 
can provide. We pay these judges as though they are active so 
they can be called on in a time of need. And I think it is 
clear to all that the need is now and it is urgent.
    Mr. Chairman, I look forward to the testimony today. I look 
forward to working with you and the other Members as we move 
forward to address solutions to this issue.
    I thank the Chair.
    Senator Akaka. Thank you very much, Senator Burr.
    Now we will have the opening statement of Senator Craig.

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

    Senator Craig. Chairman Akaka, thank you very much for 
holding this hearing, and I appreciate what Senator Burr has 
said. I do not know, Judge Greene, of anything more important 
to a veteran than a timely adjudication of a claim.
    Let me also recognize Judge Al Lance, who is here with us 
today. Judge Kasold is with us. Thank you all for being here.
    Mr. Chairman, I have had the privilege over the last 
several years of going to the Court on at least two occasions, 
and I did so because of the very issues and the questions both 
you and Senator Burr have brought before us that are timely and 
important for all the right reasons.
    Part of the purpose for this hearing, I think, is 
reflective of legislation that you have authored, Mr. Chairman, 
to expand judgeships from seven to nine. So for just a few 
moments, I want to relate to you my experience--you have picked 
up on some of it already--that I think is extremely important 
as we work our way through this. It is my role, I believe, to 
be as objective as I possibly can with one single purpose in 
mind, and that is to handle the caseload coming in, in a timely 
fashion for our veterans.
    CBO estimates that it will cost $13 million over 10 years 
to create two new judgeships. There is also legislation pending 
in Congress to increase judges' salaries by 50 percent. That is 
not factored into these current estimates.
    I have in the past opposed expanding the Court because 
there is no evidence that the current caseload they are 
experiencing will continue. We need to look at that factor in 
reality because if it will continue, if it does continue, then 
clearly we have a concern that we ought to be dealing with. In 
fact, just about 10 years ago, the Court requested that the 
size of judges be reduced, from seven to five, because of the 
caseload that they thought was pending or would be out there.
    Last year, during a hearing on the Court of Appeals for 
Veterans Claims, I specifically insisted that the Court utilize 
the recall of judges, and here is why: They had not been.
    Quite simply, they had not been. The ability to get retired 
judges back into the system for a limited period of time to 
help with the backlog in the Court--since that time, of course, 
you reflected on the change that has occurred. The Court has 
decided and/or terminated more cases than ever before because 
they used recalled judges. And I applauded the Court for that. 
I went back to the Court after that was happening, even met 
with one of the recalled judges, and here is one of my pieces 
of logic: Retired judges continue to receive 100 percent of 
their salary for life. And I think if we are talking dollars 
and cents and timeliness and responsibility, we have to put all 
of this in context.
    So, they are going to get paid whether they work or they do 
not work, but part of the agreement is that they do work. Over 
the last 10 years, the output of work has not kept pace with 
the dramatic increase in funding for new staff and clerks for 
the judges. We have looked at that over time. The argument was 
just more money would solve the problem. It was not solving the 
problem, until we began to look at all of the tools, and Judge 
Greene responsibly did that. And I applauded them for that at 
the time as those numbers began to level out a little bit and 
we began to see a greater timeliness to that.
    In fiscal year 2006, the Court received $500,000 for its 
electronic case filing initiative, critically important. One of 
the reasons to visit the Court, Mr. Chairman, is just to go 
look at the paper stacked around. It is phenomenal. They have 
utilized every nook, every cranny, every closet of files. Some 
of these claims bring with them a small truckload of files, and 
we have not modernized it. It has not turned electronic. It is 
now doing that. The Court has spent only about $71,000 of the 
money, with the rest being returned to the Treasury. The Court 
expects to spend between $600,000 and $700,000 over the next 
few years on contract support and training, and that will be 
critical in helping manage this. So technology is now getting 
in place for the Court. The Court expects to be using the new 
system by June of 2008. So there are tremendous improvements 
currently going on that I think are very, very important.
    I have looked at language over time to help the Court 
modernize. I have looked at language--and some of it is in 
legislation pending--that offers initiatives to judges to do a 
recall term of 5 aggregated years with the Court. If you 
participate in the recall, then you would not be eligible for 
involuntary recall, and all of those kinds of things. I think 
we need to create a more dynamic process as we look at all of 
the bits and pieces and work with the Court to accomplish that. 
I think a great deal has been done under the leadership of 
Judge Greene. I applaud the Court, the judges that are with us 
today, and I appreciate the hearing.
    Thank you.
    Senator Akaka. Thank you very much, Senator Craig.
    Senator Brown?

               STATEMENT OF HON. SHERROD BROWN, 
                     U.S. SENATOR FROM OHIO

    Senator Brown. Thank you, Mr. Chairman, very much. I would 
like to thank the witnesses for their testimony today, 
especially Chief Judge Greene. Thank you for your service and 
commitment to our Nation's veterans.
    Today we are facing, as others have said, a VA system 
nearly crushed by the exploding number of disability, pension, 
and benefit claims being filed. Nationally, the backlog of 
disability claims stands between 400,000 and 600,000. In my 
State of Ohio, with a veteran population of about 1 million 
veterans, there is a backlog of over 14,000 claims. Nearly 
5,000 of those claims have been pending for over 180 days. Ohio 
veterans are waiting too long to receive the benefits they have 
earned. It is unacceptable that after finally navigating the VA 
claims process a veteran would again face a long wait in 
backlog of cases in the U.S. Court of Appeals for Veterans 
Claims.
    We must continue to pay special attention to the Court's 
ability to handle demands that will only continue to grow. We 
have not felt the full pressure of claims that will be filed by 
returning soldiers from the ongoing wars in Iraq and 
Afghanistan. The growth of these claims will bring with them 
more complexity. A timely and accurate delivery of benefits is 
of great importance to our veterans. It affects not just the 
scope of pay and benefits they receive, but, of course, affects 
their quality of life. Congress cannot simply wait to correct 
problems that arise when we can and must anticipate these 
problems and address them now.
    Thank you, Mr. Chairman.
    Senator Akaka. Thank you very much, Senator Brown.
    I want to welcome our first witness, William P. Greene, 
Jr., Chief Judge of the United States Court of Appeals. I hope 
that we can continue to build on our positive foundation that 
we have started, and I want to add that my visiting the Court 
was partly due to the good advice of Senator Craig at that 
time, and his knowledge of Court operations, of course, was 
intriguing to me at that time.
    I would also like to acknowledge the presence of two of the 
Court's judges in our audience today, and that is Judge Al 
Lance and Judge Bruce Kasold. In addition, the Clerk of the 
Court, Norman Herring, is also with us in the audience today. 
So we thank all of you for joining us at this hearing.
    Judge Greene, will you please proceed with your testimony?

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

    Judge Greene. Thank you very much, Mr. Chairman, for that 
introduction. I also have with me this morning Mrs. Alice 
Kerns, who is the Counsel to the Board of Judges and the 
Executive Attorney to the Chief Judge.
    To you, Ranking Member Burr, and the Members of the Senate 
Veterans' Affairs Committee, let me take this opportunity to 
personally thank you for the great support that you have given 
to the Court over the past year. You have supported the Court 
well by providing resources needed to deal with an 
unprecedented caseload, and your expressions of continuing 
support are very much appreciated. Indeed, over the past 16 
months, the Committee, representing the legislative branch, and 
the Court, a judicial entity, have engaged in a very 
constructive and appropriate dialog on how best to allocate the 
necessary resources to meet the challenges of an ever 
increasing caseload.
    It is within that spirit of mutual cooperation that I 
appear today wearing my hat as the Chief Administrative Officer 
of the Court to discuss with you generally the significant 
actions that have occurred at the Court over the past fiscal 
year and what actions are anticipated to be taken that should 
place us in good stead as we fulfill our judicial review 
responsibilities.
    Over the past almost 20 years, there has been created a 
body of veterans law that serves to promote fundamental 
fairness and legal process in this often complex area. At the 
same time, this body of law has developed a number of veterans 
law attorneys and non-attorney practitioners who are now 
available to guide veterans not only through the judicial 
appellate process, but also at certain stages during the 
administrative adjudication of the claim. This legal 
representation and the apparent increased awareness by veterans 
and their families of their appellate rights and the value of 
judicial review form the foundation for increased appellate 
litigation, and an increase in VA adjudications of veterans 
claims, especially at the Board of Veterans' Appeals, surely 
will provide a substantial increase in appeals that find their 
way to the Court's doors--doors that are never closed because 
each veteran as a matter of right may appeal to the Court.
    Indeed, the Court has never been more accessible as 
demonstrated by the over 4,600 cases received this past fiscal 
year. This number, representing nearly 400 appeals filed per 
month, exceeds the monthly average of 300 per month received 
during the previous 2 fiscal years and, indeed, far exceeds the 
average 200 per month that was the norm in years before fiscal 
year 2005. Consequently, the numbers are up, and as depicted in 
the graphs that I provided to you in my prepared statement, the 
cases derived from these appeals are in various stages of 
development in the judicial appellate process.
    As the pie graph depicts, as of last week we had over 6,200 
cases at the Court. Of these, 3,766 cases were awaiting various 
pre-decisional development. Appellate review requires 
preliminary steps to be taken and satisfied before a decision 
can be rendered. A record has to be established. The appellate 
briefs must be prepared and filed. And during this process 
there also are opportunities for the cases to be resolved 
without briefing.
    For example, in fiscal year 2006, our Central Legal Staff 
conducted 934 conferences and settled 388, or 41 percent of 
those cases. The numbers for fiscal year 2007 are not yet in, 
but I expect similar, if not better, results. Also, I must add 
that in August and September of this year, our Central Legal 
Staff attorneys received formal mediation training that should 
enhance their abilities to encourage the parties to narrow and 
resolve the issues and perhaps come to an agreement before the 
appellate briefs are filed and the cases come to chambers. The 
bottom line on these cases is that they are not yet ready for 
judicial review, nor are they considered backlog.
    Also among the 6,200 number are cases that we have decided 
but that technically remain in the Court's inventory because of 
appellate procedural rules. 1,181 cases are in this category 
and 426 more are on appeal to the Federal Circuit. 
Incidentally, last month's issue of The Third Branch reported 
that the U.S. Court of Appeals for the Federal Circuit, which 
under the Veterans' Judicial Review Act reviews decisions 
appealed from our Court, is quite concerned about the large 
number of cases that may reach its level. That leaves 366 cases 
in judges' chambers awaiting decision and 385 undergoing review 
by the attorneys in the Central Legal Staff. These figures 
represent approximately 100 cases per active judge, a very 
challenging caseload.
    Here is what we are doing to respond to the steady 
increase. We are ramping up our approach to mediation or 
alternative dispute resolution. I continue to recall at the 
right time our retired judges. And I am encouraging the acting 
sitting judges to use their gained experience to suggest and 
develop innovative ways to improve how we decide cases. We are 
becoming one of the busiest appellate courts in the Federal 
judicial system, and we must constantly look for the best ways 
to review these cases thoroughly, efficiently, and 
expeditiously. Here are some of the steps we have taken or are 
considering.
    We are promulgating rules that will streamline our access 
to the record on appeal. Through the filing of a Joint Appendix 
or a condensed record, judges can focus on the documents that 
the parties contend are relevant to the specific issues on 
appeal.
    We are still looking at the practicality of issuing summary 
dispositions in the appropriate cases.
    We are emulating the many Federal and State appellate 
courts that have implemented electronic filing. E-filing should 
help us reduce some of the administrative delay that 
accompanies the voluminous filings that are associated with 
appellate litigation.
    This month, we plan to begin the process of requiring 
electronic filing of Equal Access to Justice Act applications, 
and by June 2008, we will require all pleadings to be filed 
electronically. Thus, Senate bill 2090 should be enacted to 
authorize us to take the steps needed to protect the sensitive 
information that will soon be transmitted through cyber space.
    Last, but certainly not least, a sustained increase in work 
will require a sustained increase in force and space. Our 
present space is or will be inadequate for handling the type of 
caseload we are now experiencing. The Court is the only 
national court of record without its own dedicated courthouse. 
The time is 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.
    We need your committed support for this endeavor. We 
support the section in Senate bill 1315 requiring GSA to 
conduct a study on the feasibility of converting our current 
space to a Courthouse and Justice Center. Indeed, such a study 
is being conducted now.
    The challenge facing the Court is significant, but it is 
the challenge that was anticipated when the Court was created 
almost 20 years ago: to conduct independent judicial review of 
thousands of adverse decisions made by the Board of Veterans' 
Appeals. We will strive, to the best of our abilities, to meet 
that challenge effectively and efficiently. I am proud to state 
that in fiscal year 2007 the Court decided or terminated 4,877 
cases, an all-time record high. But we are mindful of what is 
coming. In addition to the thousands of cases in the briefing 
stages already at the Court, we expect to receive even more 
numbers than the record 4,644 this past year. If Congress 
approves the additional adjudicators, attorneys, and veterans 
law judges for VA and the Board of Veterans' Appeals, there 
will be a proportional increase in the number of Board 
decisions that potentially may be appealed to the Court. 
Indeed, it is reported that the Board expects to issue at least 
41,000 cases in fiscal year 2008. I am sure there were even 
more in fiscal year 2007. Just that pool of cases alone would 
be overwhelming to the Court's caseload. The courthouse 
feasibility study predicted that by 2010 we would need not only 
more space, but also two additional active judges in addition 
to the use of retired recall judges to manage our caseload. The 
circumstances supporting that prediction are being realized. 
Consequently, I ask for your support to increase the numbers of 
active judges on the Court, as proposed in Senate bill 2091.
    Again, I thank you for the opportunity to discuss these 
matters with you today. It is imperative for us to do that 
which is necessary to perform our independent roles in this 
very important process. Now I will respond to your questions.
    [The prepared statement of Judge Greene follows:]
    Prepared Statement of Hon. William P. Greene, Jr., Chief Judge, 
               U.S. Court of Appeals for Veterans Claims
    Mr. Chairman and Members of the Committee:

    Thank you for the opportunity to testify today. As the Chief Judge 
of the U.S. Court of Appeals for Veterans Claims, I exercise 
responsibilities as the Chief Administrative Officer of the Court. It 
is in that capacity that I welcome this chance to continue a very 
important dialog with the Committee on the challenges currently facing 
the Court. Mr. Chairman, as you have pointed out several times in our 
communications and conversations, it is critical that we work together 
to promote a discourse between legislative and judicial entities to 
ensure that the proper resources are provided to enable the Court to 
carry out its judicial responsibilities. It is within that spirit of 
mutual cooperation that I depart from the normal custom of testifying 
generally only about budget matters and join you today to report on the 
significant measures that the Court has taken to enhance its abilities 
to meet the challenges of an ever-increasing appellate caseload, and to 
offer views on pending legislation that will impact the Court's 
operation.
                          the court's caseload
    A few months ago 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 (Rules), observed that the U.S. 
Court of Appeals for Veterans Claims is one of the busiest Federal 
appellate courts nationwide. The following table reflects the trends 
from fiscal year 1995 through fiscal year 2006 for Board of Veterans' 
Appeals (BVA or Board) total denials and appeals and petitions to the 
Court: \1\
---------------------------------------------------------------------------
    \1\ This table and the graphs included throughout this testimony 
are reproduced in full size and included as attachments.


Professor Allen pointed out that in fiscal year 2006, the Court 
received more new cases (3,729) than received by the following Circuit 
Courts of Appeal: First (with 1,852 cases), Seventh (3,634), Eighth 
(3,312), Tenth (2,742), District of Columbia (1,281), and Federal 
(1,772). With seven active judges, our Court's per-judge average yearly 
intake of 533 cases is about twice as many as the 263 average cases per 
judge for the Article III Circuit Courts of Appeal. Indeed, our 
caseload presents a significant challenge. Thank you for your past and 
continued support in our efforts to meet that challenge.
    Since March 2006, I have provided to the Committee quarterly 
reports on the numbers of cases received and decided by the Court. 
These reports present a snapshot of the Court's caseload. The annual 
report, a reconciliation by the Clerk of the Court of the actual 
filings and dispositions, offers a more comprehensive and precise 
picture of the Court's yearly statistics. We have provided this report 
to the public for the past 20 years. Accordingly, we support S. 1315, 
Title V, Sec. 503, which recognizes the Court's current practice and 
should obviate the need for the quarterly reports.
    The following chart shows the numbers of cases filed and cases 
decided for fiscal year 2007. The 4,644 cases received and 4,877 cases 
decided in fiscal year 2007 represent an all time record high for the 
Court.


    The growth in number of appeals filed may be attributed to several 
circumstances. Increased productivity of the Board of Veterans' 
Appeals, including a higher number of denials of benefits, produces 
more potential appeals to this Court. The number of distinct issues 
within a BVA decision is also on the rise. The emphasis and financial 
support the Senate and House Committees on Veterans' Affairs have 
placed toward increasing the numbers of personnel at the regional 
offices and Board, and toward improving claims processing times at the 
Department of Veterans Affairs (VA), inevitably have and will continue 
to lead to more decisions by the Board. Further, claimants are 
appealing not only total denials of benefits, but also Board decisions 
awarding benefits where the claimant believes that he or she should 
have been assigned a higher disability rating or earlier effective date 
for a benefit awarded. Public awareness of the Court, now in its 
twentieth year, coupled with the growing number of attorneys and non-
attorney practitioners practicing veterans benefits law produces 
potentially more claimants becoming aware of and exercising their right 
to appeal. The recent enactment of legislation authorizing attorneys to 
charge a fee for representing claimants while a claim is being 
adjudicated at VA likely will further increase the number of cases with 
complex legal issues presented for appellate review.
               meeting the challenge of a heavy caseload
    The following pie graph depicts the Court's case inventory as of 
October 30, 2007.




    Of the 6,294 cases in our inventory, 3,766 are being developed by 
the parties, i.e., the appeal has been filed and the parties have been 
ordered to file their appellate briefs. Conversely, 1,227 have already 
been decided but are temporarily kept in the Court's inventory for a 
variety of reasons (448 cases on appeal to the Federal Circuit, 155 
cases pending action on Equal Access to Justice Act applications, 406 
cases awaiting the time to run for mandate, and 218 cases awaiting the 
time to run for entry of judgment). The remaining 256 cases are stayed 
upon request of the parties or awaiting disposition of the appeal in a 
related case; 385 cases are ready for review by the Court's Central 
Legal Staff (CLS); 366 cases are pending a decision by the judges; and 
294 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).
    During my State of the Court Address at the Court's Ninth Judicial 
Conference in April 2006, as the Court's new Chief Judge, I identified 
several measures that I thought could assist us in handling a large 
caseload efficiently. Recalling retired judges was an obvious option, 
as was increasing the numbers of judicial law clerks per judge. During 
FY2007, five of the six retired recall-eligible judges were recalled 
for statutorily authorized 90-day periods and performed substantial 
service to the Court. The Court has also benefited from the increase, 
to four, in the number of judicial law clerks each judge has to assist 
him or her in conducting judicial review and preparing decisions on 
cases, as well as an increased number of attorneys in our Central Legal 
Staff (CLS). We have gained judicial experience, with our four newest 
judges having each completed nearly 3 years on the bench. I am pleased 
to report that in fiscal year 2007 the Court responded to the surge of 
appeals and decided a record high number of cases. I express my 
appreciation to the Committee for your continued support in assisting 
us to respond to our growing demands, and for ensuring that we have 
adequate resources to render thorough and timely judicial review.
    There are other measures that are being implemented and considered 
that should further assist us in managing our increased caseload:
    First, I announced at our Judicial Conference the Court's desire 
and intent to develop an electronic case filing/case management system. 
Electronic filing systems have proven effective in administrative case 
management in many Federal and state court jurisdictions. With the 
support of Congress, we received the resources to acquire such a 
system. The Court has partnered with the Administrative Office of the 
U.S. Courts to obtain and use the software and e-filing system already 
developed for Article III Courts. Indeed, 10 of the 13 Circuit Courts 
of Appeals now have that capability. This system promises to produce 
many administrative efficiencies, including complete remote record 
access, 24-hour filing access that will significantly reduce mailing/
courier costs, reduction of space for record retention, opportunities 
for multiple or simultaneous authorized user access to records, and 
efficient and cost-effective electronic notification procedures. A 
committee comprised of Court personnel, VA staff, and members of the 
veterans' bar continue to shepherd this project and we are on target to 
implement the first phase of e-filing. This month, an order will be 
announced requiring attorneys to file electronically all Equal Access 
to Justice Applications and pleadings in support thereof. Full adoption 
and implementation of e-filing for all appellate pleadings is scheduled 
for June 2008.
    Second, I have in the past discussed the possibility of the Court 
shifting from the current requirement of a Record on Appeal to a more 
condensed Joint Appendix. Pursuant to the Court's current Rules, prior 
to the submission of any briefs, the Secretary must file with the Court 
the designation of the Record on Appeal, which is to include all 
material in the record of proceedings before the Secretary and the 
Board that was relied upon by the Board in making the decision on 
appeal. Following the appellant's opportunity to counter-designate 
materials, the Secretary then transmits to the Court the Record on 
Appeal. Ninety days are allotted to accomplish this. In practice, the 
Record on Appeal is often voluminous and includes documents immaterial 
to the claim. On the other hand, a Joint Appendix is a condensed record 
on appeal, submitted to the Court after briefing is completed, that is 
limited to those documents from the claims file or Record Before the 
Agency that are identified or relied upon by either the appellant or 
the Secretary as necessary for the Court to review in deciding the 
appeal. The Joint Appendix proposal is in the final stages of 
implementation; the Court's Rules Advisory Committee has recommended 
adoption of such procedure, and proposed Rule changes have been 
received and reviewed. We believe that use of a Joint Appendix will 
better focus appellate review on the documents relevant to the precise 
issues argued on appeal, and will decrease the amount of time needed to 
prepare an appeal for decision.
    Third, through dispute-resolution efforts employed at pre-briefing 
conferences with the parties, the Court's Central Legal Staff has 
contributed to increasing the Court's case output. Again, I thank you 
for your support in authorizing an increase in the number of CLS 
attorneys for the Court. We are embracing dispute resolution as an 
important part of the Court's function and working to better assist the 
parties in narrowing and resolving issues prior to submitting their 
appellate pleadings. In August and September 2007, all attorneys 
assigned to CLS received formal mediation training that will better 
enable them to engage the parties in an effective negotiation process. 
Indeed, we want the parties coming to the table with full authority to 
commit to a thoughtful alternative resolution consistent with the law, 
due process, and the interests of justice. Toward this end, the Court's 
policy committee is currently drafting revisions to the Court's Rules 
which will clarify for the parties what is expected of them during pre-
briefing mediation and conferencing.
    Fourth, in appropriate cases where the appellant is represented, we 
are considering adopting a practice often used in other Federal courts 
of summarily disposing of some cases without extensive explanation. The 
pros and cons of this option were considered at the Court's Bar and 
Bench Conference held in April 2007, and will be the subject of more 
discussion by the Board of Judges. Summary disposition holds 
significant potential for moving simple, straightforward cases to a 
judicial decision quickly. A summary disposition states only the action 
of the court, without giving its rationale. For example, an order may 
state: ``On consideration of the record on appeal and the briefs of the 
parties, the decision of the Board is hereby Affirmed/Reversed/
Remanded.'' The decision could be explained to the appellant by his or 
her counsel. However, since the Court's inception, one of its hallmark 
policies has been to provide to a veteran an explanation of the reasons 
for the Court's decision. The benefits of that approach are obvious and 
we have adhered to that policy in disposing of single-judge matters, as 
well as in panel decisions. Summary action would be a departure from 
that practice but is an action worth considering in light of the 
dramatic increase in the number of appeals.
    Furthering these initiatives should sustain our efforts in meeting 
the challenges of the increasing caseload. As I have stated many times 
in our discussions, we are constantly looking for ways to best meet the 
demands of an increased docket--but not at the expense of limiting due 
process or short-circuiting full and careful judicial review.
                    comments on pending legislation
S. 2090--Limiting Access to the Record on Appeal to Protect Veterans' 
        Privacy
    The Court is, by statute, a National ``court of record.'' 38 U.S.C. 
Sec. 7251. Generally, the law requires that ``all decisions of the 
Court of Appeals for Veterans Claims and all briefs, motions, 
documents, and exhibits received by the Court . . . shall be public 
records open to the inspection of the public.'' 38 U.S.C. Sec. 7268(a). 
Section 7268 also provides that ``[t]he Court may make any provision 
which is necessary to prevent the disclosure of confidential 
information, including a provision that any such document or 
information be placed under seal to be opened only as directed by the 
Court.'' 38 U.S.C. Sec. 7268(b)(1). The Court has developed a process 
to seal, on its own, individual cases involving certain conditions. See 
38 U.S.C. Sec. 7332(a)(1). Moreover, motions by appellants to seal case 
records for good cause shown are routinely granted. Even where case 
records remain unsealed, public access to these records presently is 
limited to onsite review in the reading room of the Court's Public 
Office. However, with the Court's implementation of the e-filing of 
records, the present logistical limitation on access to unsealed 
records will not exist.
    I have already highlighted the benefits of e-filing. Along with its 
benefits, however, e-filing potentially makes sensitive material in 
court records widely accessible. These records generally include 
appellants' Social Security information and medical records. As other 
Federal courts implement e-filing, they too are attempting to achieve 
the balance between maintaining court records public while providing 
parties with protection from internet data mining and identity theft. 
The need to reach a balance is urgent. A Google search of the term 
``identity theft'' produces more than 20,600,000 hits. Statistics made 
available by the U.S. Department of Justice, Secret Service, and 
Federal Trade Commission reveal that there are 700,000 instances of 
identity theft per year in the United States. Some veterans who filed 
copies of their DD-214 at local courthouses have already been targets 
of identity theft.
    Under section 205(c)(3) of the E-Government Act of 2002 (Pub. L. 
No. 107-347, as amended by Pub. L. No. 108-281), the U.S. Supreme Court 
is granted authority to prescribe rules to address privacy and security 
concerns arising from electronic availability of records in the Article 
III Courts. Now pending before the Judicial Conference of the United 
States is proposed Rule 5.2 of the Federal Rules of Civil Procedure to 
promote privacy and security. Civil Procedure Rule 5.2 would require 
parties to redact from paper and e-filings such information as Social 
Security numbers or tax identification numbers, the names of minors, 
birth dates, or financial account numbers (proposed Rule 25(a)(5) of 
the Federal Rules of Appellate Procedure would apply the privacy 
protection provisions of Civil Procedure Rule 5.2 to the Article III 
Courts of Appeals). However, redaction of records filed at this Court 
may not be the best approach. Records before this Court, culled from VA 
claims files, are rife with sensitive identification information, as 
well as personal health records and financial data. Redaction would not 
only be time consuming and burdensome for VA, the Court's appellants, 
or Court staff, but also the sheer number of redactions required would 
open the door to the possibility of some sensitive information 
inadvertently remaining unredacted.
    The drafters of proposed Civil Procedure Rule 5.2, the Judicial 
Conference's Committee on Rules of Practice and Procedure (Committee), 
have recognized the special difficulty of adequately redacting 
sensitive information from Social Security appeals and immigration 
cases. The Committee noted in its report (referred to the Committee on 
the Judiciary on April 30, 2007) that the Social Security 
Administration and Department of Justice had requested that special 
treatment be given to these cases ``due to the prevalence of sensitive 
information and volume of filings.'' Accordingly, proposed Civil 
Procedure Rule 5.2(c) would limit remote electronic access to the case 
file, including the administrative record in such a proceeding, to the 
parties and their attorneys. Remote electronic access to the record 
would be unavailable to any other person; however, the Court's docket, 
an opinion, order, judgment, or other disposition issued in the case 
would be publicly accessible. Access to the full case file would be 
available to a member of the public only at the courthouse.
    Case files before this Court are analogous to those given special 
protection in proposed Civil Procedure Rule 5.2(c) in the prevalence of 
sensitive information and the relative volume of filings. At a minimum, 
they should be given the protection that will be accorded to Social 
Security actions and medical records under HIPPA. The Court is working 
to promulgate a Rule to effect this protection, but statutory 
recognition of this important issue would be welcomed. Therefore, I ask 
for the Committee's support in passing S. 2090 and amending 38 U.S.C. 
Sec. 7268 to give the Court authority similar to that provided to the 
Article III courts pursuant to section 205(c)(3) of Pub. L. No. 107-
347. Safeguarding appellants' personal information is highly important. 
The method to provide adequate protection will need to be carefully 
balanced with the benefits to be derived from electronic information 
transmission and storage, and with the Court's status as a ``court of 
record.''
S. 2091--Increase in the Number of Active Judges
    Great interest has been expressed in assuring that the Court has 
the ability to conduct effective, efficient, and expeditious judicial 
review. Your support in providing resources to handle a heavy caseload 
is very much appreciated. However, it is time to consider whether more 
must be done. As previously noted, in fiscal year 2007 the Court 
received and decided the highest number of cases in its history. All of 
the Court's seven active judges now are experienced and their chambers 
are fully staffed; all five available recall-eligible judges provided 
substantial service to the Court during fiscal year 2007. These factors 
have led to increased productivity, but new cases continue to arrive at 
an growing rate, and despite our success in increasing output, there 
remain over 4,000 cases pending before the Court. Thus, the need exists 
to increase, by two, the authorized number of active judges, and the 
Court supports passage of S. 2091.
    If H.R. 2642, the 2008 Military Construction and Veterans Affairs 
Appropriations Bill, is enacted as presently written, the Veterans 
Benefits Administration of VA will be authorized to hire 1,100 
additional staff members to process claims. In addition, the BVA 
anticipates approval for significant increases in attorneys and 
veterans law judges and support staff for fiscal year 2008 and fiscal 
year 2009. If this increased staffing is funded, the BVA expects to 
generate anywhere between 41,000 and 43,000 decisions in fiscal year 
2008, and even more in fiscal year 2009. The BVA's number of total 
denials increased from 13,033 (out of 34,175 decisions) in fiscal year 
2005 to 18,107 (out of 39,076 decisions) in fiscal year 2006, with 
appeals to the Court ranging from 20.6 percent to 26.6 percent of the 
denials. As already mentioned, as the number of BVA decisions and total 
denials increases, we expect the Court's incoming caseload to increase 
proportionally. It is therefore likely that the Court's case inventory 
will continue to grow unless the number of active judges is increased.
    There are a number of reasons why fiscal year 2008 is the critical 
time for increasing the authorization for active judges, and thus for 
supporting S. 2091. First, authorizing two more judges in fiscal year 
2008 would permit Congress to modify the number of judges in response 
to major workload shifts. Congress could reexamine the need for nine 
judges when the terms of two Judges expire in 2016. If at that time 
Congress determines that nine judges are no longer needed, those 
vacancies could simply not be filled. Second, all judges, except for 
me, complete their terms in either 2016 or 2019. Creating two new 
positions in fiscal year 2008 would avoid a significant number of 
simultaneous vacancies followed by a period of time when a majority of 
the Court's judges would be new and unseasoned. This was, in fact, a 
cogent reason for the temporary authorization of nine judges between 
2000-2004.\2\ Third, any proposal to alter tenure or recall service in 
the future would not have an impact until more judges retire. Indeed, I 
am the only judge eligible for retirement before 2016. No doubt, two 
additional active judges, once established, would significantly reduce 
the length of time that cases are pending at the Court.
---------------------------------------------------------------------------
    \2\ See 38 U.S.C. Sec. 7253(h).
---------------------------------------------------------------------------
S. 1315--Title V--Sec. 502 Practice and Registration Fees
    The Court supports the provision in S. 1315, Title V, Sec. 502 that 
amends section 7285(a) of title 38 of the U.S. Code. Currently, that 
statute limits the Court's registration and practice fee to $30 per 
year. Section 502 of S. 1315 would eliminate the $30 limit, and would 
give the Court discretion to impose a ``reasonable'' fee. The Court 
currently charges a one-time $30 registration fee when a person is 
first admitted to practice as a member of its bar. The $30 limit 
presently imposed makes this Court's registration and practice fee the 
second lowest of Federal appellate courts, with only the U.S. Court of 
Appeals for the Seventh Circuit charging a lower fee ($15). Various 
other Federal appellate court practice fees are as follows: U.S. Courts 
of Appeals for the Fourth Circuit and Eleventh Circuit--$170; U.S. 
Court of Appeals for the Federal Circuit--$175; U.S. Courts of Appeals 
for the District of Columbia Circuit, Second Circuit, Third Circuit, 
Eighth Circuit, and Ninth Circuit--$190; U.S. Courts of Appeals for the 
Fifth Circuit, Sixth Circuit, and Tenth Circuit--$200. While the U.S. 
Tax Court and the U.S. Court of International Trade charge, 
respectively, $35 and $50 for admission to practice, the U.S. Court of 
Federal Claims charges $250.
    The Court is authorized to use the practice and registration fees 
to defray costs connected with conducting attorney disciplinary 
proceedings, the Court's judicial conferences and other Court 
continuing legal educational programs, and sponsoring public Court 
commemorations and other ceremonial events. The Court has a large bar 
that participates actively in these educational opportunities. As with 
all things, the cost of supporting such events is increasing. Further, 
as more attorneys represent claimants at VA and continue their appeals 
to the Court, even if the percentage of disciplinary actions stays 
constant, we may face an increase in disciplinary proceedings. Through 
the reasonable assessment of these non-appropriated funds, the Court 
could continue timely investigations of disciplinary charges and 
provide quality educational events, both designed to improve the 
quality of practice before the Court. The initial admission-to-practice 
fees would be reasonably assessed to permit broad participation.
S. 1315--Title V--Sec. 504 Veterans Courthouse and Justice Center--GSA 
        Feasibility Study

    The Court is continuing its efforts with the General Services 
Administration (GSA) to work toward making a Veterans Courthouse and 
Justice Center a reality. Our present space is inadequate for the type 
of caseload we are now experiencing and anticipate will continue. The 
current lease of the commercial building expires in October 2010, so 
there is some urgency to this effort, because every feasible option for 
having an appropriate court facility for handling this increased 
appellate caseload requires several years of lead time. Adequate space 
is crucial if we are to make efficient use of recalled judges and any 
future full-time active judges in residence at the Court.
    On July 14, 2007, Court representatives met with representatives of 
GSA and their consultants, HOK Advance Strategies and Staubach Realty, 
and established a structure and timetable for the study that GSA is 
undertaking to determine the feasibility and cost effectiveness of 
converting 625 Indiana Avenue, NW., to a Veterans Courthouse and 
Justice Center. The study will conform to the GSA reporting 
requirements of the provisions of section 504 of S. 1315, should those 
provisions be enacted. As part of the study, GSA's consultants will 
meet with the Federal tenants who occupy the 3rd, 4th, 5th, 7th, and 
8th floors of the Court's current building to gather data needed to 
analyze the impact on these tenants, their space needs, and costs 
involved. GSA and its consultants expect the study to be completed in 
December 2007. We appreciate the Committee's ongoing support in 
creating a tangible symbol of the Nation's commitment to justice for 
veterans.
                               conclusion
    In conclusion, rest assured that no week at the Court goes by 
without a dialog among the judges and staff on how to decide our 
veterans' cases efficiently and thoroughly. On behalf of the judges and 
staff of the Court, I express my appreciation to the Committee for your 
consideration of the Court's operational needs, and for your support on 
the pending legislation that will further our common goal of ensuring 
swift and sure justice for those who have borne the battle and served 
our Nation honorably.
                               appendix 



    Senator Akaka. Thank you very much, Judge Greene.
    You mentioned that you are going to need more judges by 
2010. Between the increased output of active judges and the 
assistance provided by the recalled judges, the Court had a 
record-setting year in terms of numbers of cases decided.
    Now, you did mention that by 2010 you feel that you would 
need two new active judges. Can you explain to me how you have 
come to that decision of having more full-time and active 
judges?
    Judge Greene. I will try my best, sir, in terms of the 
clairvoyance that I have, but I think in a nutshell, when the 
feasibility study was drafted and presented, they used the 
guidelines from the Administrative Office of the U.S. Courts as 
to how many judges would be needed for the numbers of cases 
coming into the system. At that time they were looking at what 
was coming into the Court in fiscal year 2005 and fiscal year 
2006, when we were receiving around 300 cases per month. If 
that trend continued from fiscal year 2005 forward into fiscal 
year 2010, then that met the standards of increasing the size 
of the Court to nine, because with 3,600 cases, which was 
clearly 1,200 to 1,400 more cases than the Court ever has 
received in any particular year, that is what was going to be 
needed to handle the type of caseload that we have given the 
types of dynamics involved with the appellate process.
    Stepping back from that, this past year we obviously 
received over 4,600 cases. Now, some of that is related to a 
specific case that VA had decided and the Court had decided 
that involved bilateral tinnitus with a lot of veterans filing 
claims in that regard. But it was an indicator as to what could 
happen at the Court. Based upon what is happening at the Board 
and the statistics that they put out each year in terms of the 
requirements for veterans law judges to produce so many 
decisions per year or per month, and given the types of cases 
that can be appealed to our Court, which are all not just total 
denials but adverse decisions including disagreements with 
awards of benefits, there is every reason to believe that the 
Court will continue to receive the numbers of cases that we 
received this past fiscal year.
    With those kinds of numbers, and looking forward in terms 
of the time it takes to get individuals nominated, and the time 
it takes to get them confirmed, then we predict that by 2009-
2010, we would be in a situation where we would have to have 
that kind of court to meet the numbers of cases that we have. 
With 3,700 cases still pending at the Court right now, after 
having done 4,800, add to that the 4,000 more coming in that we 
will not be able to get to until 2009, it just seems to be a 
very practical thing to start preparing for.
    Senator Akaka. What can you explain is the difference 
between the two quarters of output this year? That is, the 
Court decided 1,972 cases, whereas from April to June--1,972 
cases, of course, from January to March, and from April to June 
the Court decided just 963 cases.
    Judge Greene. Just 963.
    Senator Akaka. This is why I ask that question about, you 
know, how you are deciding you need more judges.
    Judge Greene. Well, that 1,900 figure, sir, is a blip, 
admittedly. In fact, the month of February was a very big month 
for the Court, because in 28 days I think we took credit for 
almost 1,000 cases. That stems directly from the Smith v. 
Nicholson case, where our Court had decided in favor of the 
veteran, the Government appealed that decision to the Federal 
Circuit, which through the system that we have, with the serial 
appellate review, they can do; and the Federal Circuit 
disagreed with us, so they reversed. And when they reversed, 
all those cases that we had been holding and waiting to decide 
were able to be decided quite expeditiously.
    Senator Akaka. Thank you.
    Senator Burr?
    Senator Burr. Thank you, Mr. Chairman.
    Judge Greene, given the Court's extraordinary caseload, 
have you asked any retired judges to voluntarily serve more 
than 90 days?
    Judge Greene. I have.
    Senator Burr. And how many?
    Judge Greene. All of them.
    Senator Burr. All of them have served more than the 90 
days, voluntary?
    Judge Greene. I have asked them, and all of them have not 
been able to.
    Senator Burr. And how many have been willing to serve 
longer than 90 days?
    Judge Greene. None.
    Senator Burr. None have served longer than 90 days?
    Judge Greene. Right.
    Senator Burr. You have requested of all of them to work 
longer.
    Judge Greene. That is correct.
    Senator Burr. Thank you for that.
    The National Organization of Veterans' Advocates points out 
in their testimony this morning that many cases are resolved 
without the involvement of a judge. Can you tell us how many 
cases last year required a decision by a judge and how many 
were decided by the clerk of the Court?
    Judge Greene. The predicate of the question was that there 
were a number of decisions that did not require----
    Senator Burr. Cases that were resolved without the 
involvement of a judge.
    Judge Greene. I can tell you that approximately 2,200 cases 
were decided by judges.
    Senator Burr. And is that based on an agreement reached by 
the parties?
    Judge Greene. The 2,200 or the remainder? Because the 2,200 
were decided by judges.
    Senator Burr. Were decided by a judge.
    Judge Greene. The remainder come from dismissals because of 
failure to file briefs or failure to file the filing fee, 
administrative procedural dismissals of the case. There are 
other instances where, through the Central Legal Staff 
conducting their mediation process during the pre-briefing 
stage, they are able to get the parties to narrow the issues 
and come to agreement as to a resolution. That agreement or 
resolution turns into the parties' agreeing to jointly remand 
the matter back to the Board of Veterans' Appeals for further 
adjudication.
    Senator Burr. Does the Court track the median time for the 
filing of briefs to the Court from the standpoint of the 
Court's disposition of the cases?
    Judge Greene. We do not, and I am thinking about taking a 
closer look at that given some of the statements and concerns 
that have been made. Our rules allow for 254 days to get the 
case started--designating the record, then after designating 
the record, the parties file the briefs--254 days. Inevitably, 
there are going to be requests for extension of time by either 
the appellant or the Government. In fact, 13,000 such requests 
were made last year, and all of them were granted. If we deny 
any of those requests, it basically throws that party out of 
court because they have not filed the necessary papers. We do 
not want to do that.
    Consequently, the time that is expended in these extensions 
certainly is counted in this median time that we are reporting 
now.
    Senator Burr. Does the Court track separately the median 
time it takes to decide a case by a judge versus the median 
time it takes when the clerk handles the case?
    Judge Greene. No.
    Senator Burr. OK. DAV suggests that cases decided by a 
single judge are less complex than cases decided by a panel of 
judges. Does the Court track separately the median time to 
decide cases by a single judge and cases decided by a panel of 
judges?
    Judge Greene. Not formally. I as the Chief Judge take a 
look at the numbers of cases in chambers and see how they are 
moving through chambers, but I do not have a specific report 
on----
    Senator Burr. Even informally, it is not looking at the 
median times and comparing them. Is that correct?
    Judge Greene. That is correct.
    Senator Burr. OK. Does the Court track separately the time 
it takes to decide cases where veterans or a family member is 
not represented and cases where there is a representative?
    Judge Greene. We do track the time of--the number of pro se 
cases at the time of filing and then at the time of 
disposition. In other words, it gives us some litmus point as 
to what is the number of individuals filing their appeal that 
do not have representation. That drives our efforts to get 
these individuals representation through the Pro Bono 
Consortium or some other way in which they will be in contact 
with legal representation. Then we take a look at the 
disposition of----
    Senator Burr. Well, let me say, you mentioned in your 
testimony--and this is the root of the question. You mentioned 
in your testimony that having more lawyers involved in the 
cases at VA may, and I quote, ``increase the number of cases 
with complex legal issues presented for appellate review.''
    Judge Greene. That is correct.
    Senator Burr. So, specifically, if we track the median 
times on cases where there is no representation and cases where 
there are representations, does, in fact, the tracking of those 
median times suggest exactly what you said in your testimony, 
that if we have more people who are represented, the length of 
the cases is going to be extended?
    Judge Greene. Not necessarily, because deciding the case of 
a pro se veteran may take more time than a represented case.
    Senator Burr. Well, maybe I am just having difficulty 
understanding from your testimony if having more lawyers 
involved in the cases at VA may increase the number of cases 
with complex legal issues--I sort of take that as you are 
telling us those are going to take more time.
    Judge Greene. No. It is going to give us more appeals. It 
is going to bring more appeals to the Court.
    Senator Burr. OK. Does the Court separately track the 
requests for extraordinary relief where they were dismissed, 
granted, or denied?
    Judge Greene. Yes.
    Senator Burr. OK. Mr. Chairman, I see my time has run out.
    Senator Akaka. Thank you, Senator Burr.
    Senator Craig?
    Senator Craig. Mr. Chairman, thank you.
    Judge Greene, thank you. You have mentioned a variety of 
changes that you have made in claims processing procedures and 
strategies over the last year, and I think we have already seen 
positive movement in the speed and the volume process by this 
Court over the past fiscal year.
    Do you expect this trend to continue with the upcoming 
implementation of improvements such as e-filing and the Joint 
Appendix proposal, despite the higher volume of claims coming 
in? How have you analyzed that to anticipate what this will 
produce?
    Judge Greene. The implementation of e-filing is designed to 
reduce some of the administrative burdens that the clerk's 
office faces in compiling the case to get it ready for 
appellate decision. The hard-copy documents that you saw at the 
Court will disappear. Hard copies will be kept by the parties 
in their own respective offices, but the idea is that we would 
have these electronic briefs and what have you.
    The Joint Appendix is designed to reduce the time it takes 
to get the case to chambers. Right now there is a designated 
record time that consumes almost 3 months--or more than 3 
months, just to get a record to the Court. Under the Joint 
Appendix concept, that would go away. The Secretary would be 
required to produce a record before the agency which would not 
necessarily be filed at the Court, but it very well could be. 
And then from that record, the parties would designate the 
particular documents that are related to the issues that they 
want to appeal.
    We see that as an ability to perhaps reduce the time 
significantly through the preparation process from the 
beginning until the time the case gets to the Central Legal 
Staff. The Central Legal Staff then would review the case and 
get it ready for a decision in chambers.
    Senator Craig. What additional changes in procedural rules 
and dispute resolution--I should say with those, what 
information is currently available regarding the proportion of 
decisions made by--well, I think that has already been handled. 
I will stop there. Senator Burr asked that question.
    Let me ask this question: There are obvious visible 
problems with space. E-filing comes along; I am anticipating 
that a great deal of that space is currently consumed by files 
that might be stored somewhere else. At the same time, if the 
volume continues and it is clearly justifiable that we need 
another couple of judges and those judges' staffs, can the 
Court in its current location house two more judges and their 
staffs?
    Judge Greene. No, sir.
    Senator Craig. No. So if we have got 2010 out there as a 
possibility, looking at trend lines of need, and reports are 
projecting that--and I say this not only to you but to the 
Committee--we have got a space problem. I have grown to believe 
that, and I have talked to you, obviously, about how we get 
through that issue. But time is a factor here. Here we are in 
2007, headed into 2008. Nothing is working its way through the 
process that would allow a new space, a new building, a new 
court facility. And we are looking at timelines needed for 
judges and staffs to be ramped up. Are we not on a collision 
course if all of these issues become reality? Or how timely 
can--how timely do you believe we could move, pending Congress' 
movement, as it relates to space and that which would be 
necessary to service two judges and their staffs?
    Judge Greene. I believe best case is, as expressed in the 
recent legislation, to require the Administrator of General 
Services to do this feasibility study of our current location. 
If it was feasible that the individuals--the other Federal 
tenants in that building were relocated----
    Senator Craig. We have discussed that, yes. If they go.
    Judge Greene. Then we are in place to--with that additional 
space, we could accomplish what we need.
    Senator Craig. The reality of taking the current location 
and dedicating that----
    Judge Greene. As the Veterans courthouse----
    Senator Craig. As the Veterans courthouse. From a time 
standpoint, that would appear to be most expeditious in 
relation to a new facility and the movement of everybody from 
one to another and all that would have to be stood up. OK. 
Thank you.
    Thank you, Mr. Chairman.
    Senator Akaka. Thank you very much, Senator Craig.
    To follow up on the question of space, we know that the 
Court's present location ends in 2010, and it is less than 3 
years away, and you will have to have a new location. And 
action is needed to secure an appropriate facility for the 
Court to occupy and also to consider some of these expansions 
that we are mentioning as well.
    Let me ask from your side, what do you think are the next 
steps in Court space in this effort? And what has the Court 
already done and, also, what can Congress do to assist in that 
effort?
    Judge Greene. When we received the feasibility study, the 
GSA did recommend that we go with a private developer and build 
to suit. It did not consider the option that I was just 
explaining to Senator Craig about converting the present 
location to the Veterans Courthouse and Justice Center.
    We have been working closely with GSA since 2005 on this, 
and, in fact, they have already begun doing the report that the 
Senate bill would require them to do. And, in fact, we are 
expecting a report from GSA next month about the feasibility of 
converting 625 Indiana Avenue to the courthouse. If that is a 
positive report, then obviously I think we can hopefully rely 
upon them and the other sources to do that which is necessary 
to move to convert that location.
    We need Congress to encourage GSA to move with priority on 
this project. It was delayed somewhat because of other 
priorities GSA assessed to its schedule. But they promised us 
now that we will get a report in December, and if that report 
does come, we should be in a position to take a close look at 
what the next steps need to be.
    Senator Akaka. Thank you.
    Senator Burr?
    Senator Burr. Thank you, Mr. Chairman.
    Judge Greene, just one quick follow-up. Since you began 
recalling retired judges, how many cases have they handled?
    Judge Greene. 297.
    Senator Burr. 297. Can you give us any expectations as to 
what--reasonable expectations as to how many cases those judges 
could handle in a year?
    Judge Greene. I think fully ramped up, I would--I can give 
you a better answer after this year. The first year was really 
the learning process. Some judges were able to catch on quicker 
than others. I mean, they had been out of it for a while. The 
cycle has started again as of September.
    Senator Burr. Let me ask this, since I am sure at some 
point in this assessment of the future that you go through as 
Chief Judge, especially as you begin to build the case for 
additional judges, the need for them, and staff, if you will, 
share with the Committee at the appropriate time what you 
believe your expectations of the retired judges would be for 
next year and how you look at their capacity over the next 5 
years since that seems to be a timeframe that we are focused on 
relative to a decision.
    Judge Greene. For 5 years. I am sorry, I----
    Senator Burr. Well, I am hearing conversations about 2010 
and----
    Judge Greene. Oh, OK.
    Senator Burr. Yes. I am just trying to get some 
understanding as to what your expectations are of the retired 
judges over the next 5-year period and how that might impact 
the decisions we make and the timing of what we make.
    Judge Greene. All right.
    Senator Burr. Thank you.
    Judge Greene. Thank you.
    Senator Akaka. Thank you so much. Thank you for your 
testimony, Judge Greene, Chief Judge. We appreciate it, and we 
appreciate your responses. We may have additional questions 
that we would submit, further questions from other Members as 
well, and we want to wish you well. You know that we want to 
try to help you, and the Court as well, in trying to help our 
veterans out there and to reduce the number of cases that you 
deal with as we go along here.
    Judge Greene. Thank you, Mr. Chairman.
    Senator Akaka. So we thank you, and we wish you and the 
Court well.
    Judge Greene. Thank you very much.

Responses to written questions submitted by Hon. Richard Burr, Ranking 
   Member, Directed to The Hon. William P. Greene, Jr., Chief Judge, 
           United States Court of Appeals for Veterans Claims

    Question 1: During fiscal year 2007, the U.S. Court of 
Appeals for Veterans Claims (hereinafter, ``Court'') decided 
4,877 cases. At the hearing, you testified that approximately 
2,200 of those cases were decided by judges and the rest were 
handled by the Clerk of the Court.

    A. Of the cases decided by judges, how many were decided by 
a single judge and how many were decided by a panel of judges?
    Response: In fiscal year (FY) 2007, 66 appeals were 
assigned to panels. Because of various circumstances, such as 
settlement or the appeal being returned to a single judge, 
ultimately 36 panel decisions were issued in fiscal year 2007. 
In most instances, panel dissolutions occurred only after 
considerable judicial resources had been invested in resolving 
the appeal.

    B. How many of those approximately 2,200 cases were decided 
by recalled retired judges?
    Response: Approximately 300.

    C. How many law clerks did the Court have in total during 
fiscal year 2007 and, on average, how many draft decisions did 
each law clerk prepare?
    Response: In fiscal year 2007 the Court employed 28 law 
clerks. The Court does not track the number of drafts prepared 
by law clerks. That number is controlled by each Judge, who 
decides on a case-by-case basis how many drafts are needed to 
produce a final decision.

    D. What is a reasonable level of productivity to expect 
from law clerks, in terms of how many cases per week or per 
year they should draft?
    Response: It is reasonable to expect an average of 70 
initial drafts per year per clerk, considering the time spent 
for new clerks to gain experience, and the time necessary for 
preparing other orders and researching and preparing panel 
memoranda.

    E. Have the total number of decisions drafted by law clerks 
increased proportionally as the total number of law clerks has 
been increased?
    Response: Although the Court does not track the number of 
draft decisions by law clerks, I am certain that there has been 
a concomitant rise in the total number of drafts as the total 
number of law clerks at the Court has increased.

    F. How many employees in the Clerk's office handled the 
approximately 2,200 cases that were decided by the Clerk of the 
Court in fiscal year 2007?
    Response: The Clerk acted on most of those matters, 
although on occasion when the Clerk was absent, his two deputy 
clerks, both attorneys, reviewed matters and acted on the 
Clerk's behalf. Generally, before the Clerk acts on these 
cases, employees in the Court's Public Office process the 
appeal, obtain the designated record, and in represented cases, 
forward the file to attorneys in the Court's Central Legal 
Staff for pre-briefing conference.

    Question 2: The Court's annual report reflects that in 
fiscal year 2007 there were 3,211 merits decisions.

    A. What percent of the approximately 2,200 decisions that 
were made by judges were merits decisions?
    Response: Approximately 95 percent. I note that in the 
Annual Report, for accounting purposes, the Court identifies 
dispositions in two categories: ``merits decisions'' and 
``procedural decisions.'' This distinction, however, should not 
be used as a measure of the complexity of an appeal. Each case 
is unique, and just as a ``merits decision'' may ultimately 
result in the grant of a joint motion for remand, a 
``procedural decision,'' not counted under the ``merits'' 
column, may involve a complex legal question and result in a 
panel or full court opinion of the Court.

    B. How many merits decisions were the result of joint 
motions by the parties?
    Response: Approximately 1,100.

    Question 3: One factor considered by the Judicial 
Conference of the United States in assessing a court's need for 
additional judgeships is how much service is provided by senior 
judges.

    A. During fiscal year 2008, how much service do you expect 
the recall-eligible judges to perform and how many cases do you 
anticipate they will be able to decide?
    Response: In fiscal year 2008 I would expect that the 
recall-eligible judges would provide the same length of service 
as in fiscal year 2007. I would anticipate that with 1 year's 
experience with the process the recall-eligible judges would 
decide at least as many cases in fiscal year 2008 than they did 
in fiscal year 2007.

    B. Do you anticipate any change in the number of recall-
eligible retired judges during the next 5 years?
    Response: Yes. I anticipate that there may be one 
additional recall judge available.

    C. Do you anticipate any change in the contribution (either 
an increase or a decrease) of the recall-eligible retired 
judges over the next 5 years?
    Response: I would anticipate that they would respond to the 
needs presented.

    D. In the next 5 years, what size caseload could reasonably 
be handled by recalled retired judges?
    Response: I do not anticipate great change in the caseload 
handled by the recalled judges.

    E. If legislation is enacted to provide all judges, 
including the recall-eligible retired judges, with a nearly 50 
percent pay raise, would that impact the expected number or 
contribution of recall-eligible judges?
    Response: Under any of the numerous pay equity proposals it 
is not anticipated that the number of cases decided by the 
recall eligible judges would be impacted. Each case is decided 
on its own unique factual pattern and often complex legal 
question. It is impossible to estimate the number of cases 
which might be considered and decided during any given period.

    Question 4: The Court's annual report reflects that the 
median time from filing to disposition of cases was 416 days in 
fiscal year 2007. It also reflects that this statistic was 
changed to use median time in fiscal year 2006.

    A. Prior to fiscal year 2006, did the Court report the 
average time to disposition?
    Response: Yes. However, because all other U.S. courts 
report median time for case disposition, the Court changed its 
reporting to conform to that practice.

    B. If so, in order to provide a comparison to prior years, 
would you please provide the Committee with either the average 
time for fiscal years 2006 and 2007 or the median times for 
prior years, if possible?
    Response: Average time for fiscal year 2006--439 days. 
Average time for fiscal year 2007--437 days.

    Question 5: The Court's annual report also reflects the 
number of Equal Access to Justice Act applications that were 
granted, denied, or dismissed.

    A. Does the Court track the number of Equal Access to 
Justice Act applications that are filed each year? If so, how 
many were filed during fiscal year 2007?
    Response: No, the Court does not track the annual number of 
EAJA applications filed.

    B. Does the Court track the median time to decide those 
applications? If so, what was the median time during fiscal 
year 2007?
    Response: No.

    C. In fiscal year 2007, what percent of the applications 
acted on by the Court were resolved by the parties reaching an 
agreement?
    Response: Over 90 percent.

    Question 6. The National Organization of Veterans Advocates 
noted in their testimony that the Court has a practice of 
deciding appeals without addressing all allegations of error 
and that this leads to some veterans returning to the Court 
``three, four, or five times.''

    A. Does the Court track how many veterans or their family 
members have appealed the same case to the Court more than 
once?
    Response: No.

    B. If so, how many of the cases filed during fiscal year 
2007 were before the Court for at least the second time?
    Response: N/A.

    Question 7: In your testimony, you noted that there are 
6,294 cases pending before the Court and that 366 of those 
cases are pending in judges' chambers and 385 are pending 
review by the Central Legal Staff.

    A. Have any cases been pending review by a judge for more 
than 3 months, more than 6 months, or more than 1 year?
    Response: Yes. I must add, however, that the judges 
preliminarily review all cases when they are received in 
chambers, and that many of the appeals pending a decision for 
over 3 months and all of those over 6 months are being stayed, 
either formally or informally, pending a decision by the U.S. 
Court of Appeals for the Federal Circuit, a panel decision of 
this Court, or for some other specific further legal review by 
this Court.

    B. Have any cases been pending review by the Central Legal 
Staff for more than 3 months, more than 6 months, or more than 
1 year?
    Response: There are appeals at the Court that have been 
pending review by CLS for more than 3 months, but none that 
have been pending for more than 6 months.

    C. Does the Court track the average or median amount of 
time that all cases have remained pending at the Court? If so, 
what is that statistic currently?
    Response: The Court tracks and provides in its annual 
report the median time for case disposition.

    D. What steps are taken to try to resolve long-pending 
cases?
    Response: Absent reason to expedite a particular case, CLS 
and chambers generally operate on a ``first in-first out'' 
basis of review and decision. For cases that are stayed for 
legal reasons, every effort is made to adjudicate those appeals 
once the underlying predicate for the hold is resolved.

    Question 8: For Federal appellate courts, the Judicial 
Conference of the United States weights pro se cases as one-
third of a case. How would you weight pro se cases that come 
before this Court?
    Response: Pro se cases at the Court are considered whole 
cases and receive full consideration. Indeed, consideration of 
a pro se case may be more detailed than one where the arguments 
are presented by counsel. Many cases filed pro se ultimately 
receive legal representation through the pro bono program. 
Additionally, the Court early on decided that all cases warrant 
a written decision and one line decisions are not used, as they 
are in the other Federal appellate courts. Accordingly, the 
Court does not assign less weight to cases filed pro se.

    Question 9: At the hearing, you mentioned that the Court's 
Central Legal Staff conducted 934 conferences during fiscal 
year 2006 and that there were settlements in 388 of those 
cases. You also mentioned that the fiscal year 2007 statistics 
were not yet available.

    A. How many employees conducted these conferences during 
fiscal year 2006 and during fiscal year 2007?
    Response: In fiscal year 2006 eight (8) CLS attorneys 
conducted conferences, and in fiscal year 2007 ten (10) 
attorneys conducted conferences.

    B. Would you please provide the Committee with the fiscal 
year 2007 statistics when they are available?
    Response: In fiscal year 2007, pre-briefing conferences 
were scheduled in 872 appeals. Of those, 506 appeals (58 
percent) settled.
    C. What criteria are used in determining whether a 
conference is appropriate?
    Response: In determining whether a conference is 
appropriate, the single most significant factor is whether the 
appellant is represented, because conferences are not conducted 
in cases appealed pro se. A represented cases is forwarded to a 
CLS attorney who conducts a general review of the case. 
Criteria for determining whether a conference would be useful 
in a particular case include the number of issues decided by 
the Board decision; the type of issues decided by the Board; 
and the likelihood, in the opinion of the CLS attorney, of a 
conference resulting in a narrowing or possible resolution of 
some of the issues presented on appeal. Prior to January 2008, 
CLS exercised greater discretion in determining whether to 
schedule a conference. However, this year the Board of Judges 
modified the protocol for conferencing, and now virtually all 
represented cases are being scheduled for conference.

    Question 10: You mentioned at the hearing that you had 
requested that recall-eligible retired judges serve more than 
90 days but that none had been able to do so.

    A. In an emergent situation, would it be helpful to the 
Chief Judge of the Court to be able to require additional 
service by retired recall-eligible judges?
    Response: I believe the current provisions of 38 U.S.C. 
Sec. 7257(b)(1) and (2) are sufficient to meet the needs of the 
Court, absent the type of emergent situation that would justify 
authorization of additional full-time judges. I note that 
Article III senior judges--the equivalent of our recall 
judges--are required to take only a 25 percent work-load, or 
the equivalent of the 90-day recall period applicable to our 
recall-eligible judges. I believe that parity within the 
Federal judiciary should remain.

    B. Are there other steps that either the Court or Congress 
could take to ensure that the Court will receive the help it 
needs from recall-eligible retired judges?
    Response: No. By definition, retired recall-eligible judges 
are judges who have retired. They each receive pay of the 
office if they accept senior or recall-eligible status to 
encourage their continued participation so that their 
experience and knowledge can be maximized to the benefit of the 
Nation. Our recall judges are performing admirably.

    Question 11: During fiscal year 2007, the Court denied 66 
requests for extraordinary relief and granted 2. What was the 
median time to decide those requests?
    Response: This information is not tracked or available.

    Senator Akaka. Let me introduce the second panel to our 
hearing today. I appreciate each of you being here and look 
forward to your testimony.
    Mr. R. Randall Campbell, Assistant General Counsel of 
Professional Staff Group VII, is here representing the 
Department of Veterans Affairs. Mr. Campbell is a member of a 
group that practices before the Court on behalf of VA.
    I also welcome Richard Cohen, President of the National 
Organization of Veterans' Advocates; Christine Cote, Litigation 
Attorney for the National Veterans Legal Services Program; and 
Joe Violante, National Legislative Director of Disabled 
American Veterans.
    Each of your statements will appear in the record of 
today's hearing, and I ask that you each limit your direct 
testimony to no more than 5 minutes so that we can have time 
for questions.
    Senator Burr. Mr. Chairman, could I exercise this 
opportunity to personally apologize to this panel? I have got 
to go over to the joint session.
    The Chairman has graciously committed to represent the 
entire Committee, and I can assure you that I am going to 
follow very closely the questions that the Chair has. And I 
hope, Mr. Chairman, I would ask unanimous consent if it is not 
already, that I can send to you questions that I might get you 
to answer in writing for me. I do apologize, but I do 
appreciate your willingness to come in and share with the 
Committee your testimony.
    Senator Akaka. Without objection, that will be it, and I 
appreciate your work here with the Committee, Senator Burr.
    Mr. Campbell, will you please begin with your statement?

 STATEMENT OF R. RANDALL CAMPBELL, ASSISTANT GENERAL COUNSEL, 
   PROFESSIONAL STAFF GROUP VII, U.S. DEPARTMENT OF VETERANS 
                            AFFAIRS

    Mr. Campbell. Mr. Chairman, Ranking Member Burr, and 
Members of the Committee, it is an honor today to present the 
views of the Secretary of Veterans Affairs regarding the 
performance and the operation of the Veterans Court.
    As you mentioned, my office represents the Secretary in 
every case that comes before the Veterans Court, and we 
understand from firsthand experience the daunting challenges 
faced by the Court in managing the explosive growth in new 
cases. By our numbers, nearly 6,300 new cases were filed in the 
fiscal year just ended. That is because we count not only 
appeals that are filed from Board of Veterans' Appeals 
decisions, but also the writs of mandamus that are filed that 
we must respond to and also applications for attorney fees 
under the Equal Access to Justice Act.
    That 6,300 number was on top of nearly 5,000 new cases that 
were filed with the Court in the preceding year. What is more, 
my office alone filed more than 29,000 pleadings this past 
year, which provides some idea of the incredible workload that 
confronts the Court.
    You have asked for VA's views on two bills. S. 2091, if 
enacted, would expand the number of active judges sitting on 
the Veterans Court from seven to nine. We defer to the Court on 
how effective this increase will be and whether this will be 
more effective than exercising the current recall authority. 
What is clear, however, is that the Court's use of recalled 
judges over the past year and, thus, its expansion of the 
number of judges deciding cases has had a dramatic effect on 
the Court's caseload. Indeed, the Veterans Court decided more 
decisions in the past--or issued more decisions in this past 
year than at any time in its history.
    S. 2090, if enacted, would require the Veterans Court to 
adopt rules to protect the privacy and security of 
electronically filed documents. This proposal is essentially an 
extension of the Veterans Court's existing authority and 
anticipates the upcoming conversion from paper filing to 
electronic filing. The proposal also requires the Veterans 
Court to adopt rules that are consistent with other Federal 
courts and to take into account the best practices in Federal 
and State courts.
    The importance of safeguarding sensitive information from 
veterans' files cannot be overemphasized. Consequently, we 
support enactment of S. 2090. The proposal is logical and it is 
timely given the impending conversion from paper filing to 
electronic filing.
    Mr. Chairman, that concludes my testimony, and I would 
welcome any questions that the Committee might have.
    [The prepared statement of Mr. Campbell follows:]
Prepared Statement of R. Randall Campbell, Assistant, General Counsel, 
                  U.S. Department of Veterans Affairs
    Mr. Chairman, Ranking Member Burr, and Members of the Committee:

    Thank you for your invitation to testify today regarding the 
performance and structure of the U.S. Court of Appeals for Veterans 
Claims, and as to two pending bills: S. 2090 and S. 2091. Before 
beginning my testimony, I would like to provide a brief overview of my 
organization, which is Professional Staff Group VII of the Office of 
the General Counsel, and is otherwise known as the Veterans Court 
Appellate Litigation Group.
    My office represents the Secretary of Veterans Affairs in all cases 
coming before the Veterans Court. Whether the case is an appeal from a 
final decision of the Board of Veterans' Appeals, a petition for a writ 
of mandamus, or an application for fees and expenses under the Equal 
Access to Justice Act, 28 U.S.C. Sec. 2412, my office is responsible 
for handling the administrative and legal aspects warranted by the 
litigation.
    That provides a segue to the main topic of today's hearing--the 
performance and structure of the Veterans Court. My office has watched 
the caseload steadily increase since the Veterans Court opened its 
doors for business in 1989. We can appreciate the daunting management 
challenges that flow from such a caseload. For example, my office alone 
filed more than 29,700 pleadings with the Veterans Court during FY07. 
It is impossible to predict with accuracy the number of new cases that 
will be brought to the Veterans Court in the coming years, but based on 
the increasing number of disability claims expected, we do not believe 
the caseload has hit a plateau.
    A couple of examples of why the Court may see more cases include 
VA's initiative to decrease remands. This has led to an increase in the 
number of final decisions issued by the Board of Veterans' Appeals and, 
hence, an increase in the number of decisions that can be appealed to 
the Veterans Court. Also, there is a heightened awareness among 
veterans of their access to the judicial process. Veterans are now more 
knowledgeable about the Veterans Court and the availability of this 
legal remedy. Their heightened awareness, coupled with a growing and 
very active appellants' bar, has undoubtedly led to an increase in the 
number of new appeals.
    Empirics, however, do not tell the entire story. From our 
perspective, cases tend to involve much larger records these days and 
issues that are more numerous and complex. 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 hundreds of cases that must be re-briefed, thereby delaying 
the ultimate decision in those cases. Also, if a case is scheduled for 
oral argument, that delays processing of others while the subject case 
receives priority treatment. All of these factors add to the case 
management challenge.
    The Veterans Court clearly 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 
adjudication system and benefit programs administered by the Secretary. 
These factors call for careful deliberation and consistency, which, in 
turn, affect the amount of time the Veterans Court must spend on each 
case.
    You have asked for VA's views on two bills. S. 2091, if enacted, 
would expand the number of active judges sitting on the Veterans Court 
from seven to nine. We defer to the Court on how effective this 
increase will be and whether this will be more effective than the 
current recall authority available to them. We have glimpsed the 
efficacy of the Court's recall authority during the last year when the 
Court recalled judges to temporarily boost productivity.
    S. 2090, if enacted, would require the Veterans Court to adopt 
rules to protect the privacy and security of electronically filed 
documents. This proposal is an extension of the Veterans Court's 
existing authority and anticipates the upcoming conversion from paper 
filing to electronic filing. The proposal also requires the Veterans 
Court to adopt rules that are consistent with the other Federal courts, 
and to take into account the best practices in Federal and State courts 
to protect private information.
    Current U.S. Vet. App. Rule 11(c)(2) permits the Veterans Court, on 
its own initiative or on motion of a party, to ``take appropriate 
action to prevent disclosure of confidential information.'' Rule 48 
permits the Veterans Court to seal the Record on Appeal in appropriate 
cases. Rule 6 currently provides: ``Because the Court records are 
public records, parties will refrain from putting the appellant's or 
petitioner's VA claims file number on motions, briefs, and responses 
(but not the Notice of Appeal (see Rule 3(c)(1))); use of the Court's 
docket number is sufficient identification. In addition, parties should 
redact the appellant's or petitioner's VA claims file number from 
documents submitted to the Court in connection with motions, briefs, 
and responses.'' The idea is to prevent the public from easily 
accessing a veteran's Social Security number, which the Department of 
Veterans Affairs often uses as a claims number.
    The importance of safeguarding sensitive information in a veteran's 
files cannot be overemphasized. Consequently, the VA supports enactment 
of S. 2090. The proposal is logical given the impending conversion from 
paper filing to electronic filing.
    Mr. Chairman, that concludes my testimony. Thank you for the 
opportunity to present these ideas to the Committee.

    Senator Akaka. Thank you very much.
    Mr. Cohen?

     STATEMENT OF RICHARD PAUL COHEN, PRESIDENT, NATIONAL 
           ORGANIZATION OF VETERANS' ADVOCATES, INC.

    Mr. Cohen. Thank you, Mr. Chairman and Members of the 
Committee, for providing me this opportunity to address you on 
behalf of the National Organization of Veterans' Advocates 
concerning S. 2090. I agree with Mr. Campbell and also with the 
written testimony of the Chief Judge and note with approval his 
comments regarding proposed Civil Procedure Rule 5.2(c), 
regarding making only a portion of the records available 
electronically on the Internet. This is very important, as the 
Chief Judge notes, because these records include medical 
records which have sensitive information, like Social Security 
numbers, dates of birth, and sensitive information regarding 
medical conditions.
    Regarding S. 2091, in general NOVA supports any measures 
that would decrease the time in the Court from filing an appeal 
to decision. And as explained by the Chief Judge and recognized 
by this Committee, the Court has already taken certain steps 
which should go toward reducing the time problems in the Court, 
but there still is a serious problem with timeliness in the 
Veterans Court. It takes at least 8 months from the date of 
docketing until an appeal is sent to a judge.
    We looked at the reported cases, and we saw that most cases 
take 2 years from the date of filing to the date of 
disposition. As recognized by this Committee, there is 
additional information which Congress should require from the 
Court in order to adequately monitor what goes on in the Court. 
Specifically things like the time from the date the case is 
fully briefed until a decision is reached; like the number of 
cases resolved by the parties before a judge issues a decision; 
and like the number of cases in which a single judge decides a 
case as opposed to a panel.
    But the one thing that NOVA would like to bring to this 
Committee is the fact that there are three reasons why there is 
a backlog in the Court and why there are so many cases. First 
is inaccurate and bad VA decisionmaking. Second there are too 
many Court remands leading to repeat appeals. And, third, there 
are too many cases narrowly decided by the Court.
    Regarding wrongly decided cases, only 20 to 35 percent of 
the cases that are decided by the Board of Veterans' Appeals 
are affirmed by the Court. The rest lead to remands and 
reversals. Looking at the number of cases that come up to the 
Court, we know at least 10 percent of all appeals to the Board 
will result in a Court appeal. Chief Judge Greene said on page 
13 of his testimony that 21 to 27 percent end up there. If 
cases are not decided correctly below, they will result in 
appeals that the Court will have to decide.
    Furthermore, when a case comes up to the Court and there 
are multiple issues raised, the Court tends to decide the case 
narrowly and usually sends the case back for more reasons and 
bases instead of saying ``there is enough evidence in this case 
to decide it, let's decide the case.'' This has been known as 
``hamster wheel'' justice. It is referred to in the Coburn 
case, Coburn v. Nicholson, 19 Vet. App. 427, a 2006 case.
    Congress attempted to correct this when it added to 
7261(a)(4) the term ``reverse,'' but the Court has not yet 
taken into its jurisprudence the idea that it should reverse a 
large percentage of these cases when the evidence is clearly in 
favor of the claimant. In addition, what the Court tends to do 
is decide the cases very, very narrowly. If there are five 
issues presented to the Court and the Court can resolve one 
procedural issue that requires a remand, the Court will remand 
it on that procedural issue, leaving the other four issues to 
be resolved below. Frequently they are not, and it comes back 
to the Court.
    Thank you for the time, and I will take any questions from 
the Committee.
    [The prepared statement of Mr. Cohen follows:]
     Prepared Statement of Richard Paul Cohen, President, National 
                   Organization of Veterans Advocates
    Mr. Chairman and Members of the Committee:

    Thank you for the opportunity to present the views of the National 
Organization of Veterans Advocates (NOVA) on S. 2090, S. 2091, and 
other legislation pending before the Committee that touches on the 
operation of 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 CAVC 
and on remand before the Department of Veterans Affairs (VA). NOVA's 
dedication to training veterans' advocates and to advocacy on behalf of 
veterans has included submitting many amicus briefs on behalf of 
claimants before the CAVC and the United States Court of Appeals for 
the Federal Circuit (Federal Circuit) and led to recognition of NOVA's 
work on behalf of veterans, by the CAVC, 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 fourteen-year experience representing claimants at all 
stages of the veterans' 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 triggering date for all 
filings. NOVA believes there are two critical time spans in the 
judicial review process that should be discussed. First, 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 well 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 a 
timely appeal or lacks a final BVA decision; or (2) the parties agree 
to a disposition of the claim, typically, by remanding the case to the 
Board due to an error committed by the VA.
    NOVA is not aware of any data that captures the amount of time 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 in the months of September and October 2007 shows 
the following:
---------------------------------------------------------------------------
    \1\ This data does not include writs of mandamus or EAJA petitions. 



------------------------------------------------------------------------
                                                     Decided    Decided
                   Appeal Filed                     September   October
                                                       2007       2007
------------------------------------------------------------------------
2004:.............................................          9          2
2005:.............................................         82         34
2006:.............................................         36         34
2007:.............................................         10         11
------------------------------------------------------------------------

    This table shows that the CAVC takes over two years to render a 
decision on most appeals from the time the appeal is filed. From 1995 
through 2004, the number of appeals filed in the CAVC remained fairly 
steady in the 2,100 to 2,500 range. However, in 2005, the CAVC docket 
increased by one-third as the number of appeals filed that year rose to 
3,400, in 2006 the number of appeals filed was 3,700 and in 2007 the 
number of appeals filed was 4,643.\2\ NOVA believes the increase in the 
number of appeals filed is due to two primary reasons. First, the Board 
of Veterans' Appeals has issued more decisions over the last two years 
denying claims, and these veterans are appealing their claims to 
Court.\3\ Second, the CAVC has an established practice of deciding only 
one issue appealed by a veteran, regardless of any other issues 
simultaneously appealed and fully briefed for the Court's 
consideration. See Best v. Principi, 14 Vet. App. 18 (2001); Mahl v. 
Principi, 15 Vet. App. 37 (2001). Perhaps this practice was well-
intentioned but the practical result is that many, many veterans are 
stuck on a proverbial hamster wheel because those issues left 
unaddressed by the CAVC get re-adjudicated by the VA, oftentimes 
erroneously, thereby sending the veteran back to the CAVC for another 
appeal and another single-issue decision. Sadly, it is not unusual for 
a veteran with a meritorious claim to have to appeal to the CAVC three, 
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. First, over the last year, Chief Judge Greene 
has recalled all five available retired judges, each of whom served for 
ninety days. Unfortunately, this has not increased the number of 
precedential decisions issued by panels. Instead, almost all the 
decisions of the Court have been decided by single judges rather than 
by a panel and result in a non-precedential decision. Thus, in October 
2007, there were 78 single judge non-precedential decisions but only 3 
panel decisions. Similarly, in September 2007, there were 133 single 
judge non-precedential decisions and only 2 panel decisions. The 
serious and deleterious effect of so many single judge decisions 
results from the risk of lack of uniformity and the negative effect on 
the Court's jurisprudence caused by issuing a large number of decisions 
which carry no precedential weight.\4\
---------------------------------------------------------------------------
    \4\ Haley, Sarah M. ``Single Judge Adjudication in the Court of 
Appeals for Veterans Claims and the Devaluation of Stare Decisis.'' 
Administrative Law Review, Volume 56, No. 2, available on line at 
www.wcl.american.edu/journal/alr. Smith, Ronald L. ``The Administration 
of Single Judge Decisional Authority by the United States Court of 
Appeals for Veterans Claims.'' The Kansas Journal of Law & Public 
Policy, Vol. XIII, Number III, Spring 2004, available on line at 
www.ku.edu/kulaw/oldsite/jrnl/index.htm.
---------------------------------------------------------------------------
    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 four recommendations to 
help veterans obtain justice more timely in Court.
      1. congress should expand the number of judges on the cavc.
    Specifically responding to S. 2091, NOVA has observed that the 
number of notices of appeals filed with the CAVC has continued to 
increase, with the number of appeals filed in the CAVC during FY 2007, 
setting an all time high of 4,643. Because NOVA expects this trend of 
new appeal filings to continue, we support S. 2091 which would 
authorize adding two more judges. The addition of these two new judges 
will help to maintain current processing times in Court. NOVA believes 
that Congress needs to be proactive in this area given the trend of 
increasing appeals filed because the number of appeals is likely to 
continue to increase at the CAVC. Indeed, Congress should also consider 
adding two judges for every two thousand additional appeals filed.
          2. congress should pass legislation to clarify that 
                    reversal is proper in the cavc.
    NOVA's experience suggests that a significant portion of the 
current backlog is related to the Court's historical treatment of cases 
and claims; i.e., it has typically remanded, not reversed, when it 
deemed that the Board of Veterans' Appeals erred. And, once it 
determines that remand is proper, it will generally decline to review 
other errors. Best v. Principi, 14 Vet. App. 18 (2001); Mahl v. 
Principi, 15 Vet. App. 37 (2001). As a result, many cases on appeal to 
the Court are there for the second, third, or fourth time, often with 
the same issues to be decided. Add those to the cases that are on 
appeal for the first time, and a backlog cannot help but be created. 
Even the most hard-working and productive Judges will not be able to 
keep up.
    NOVA believes that there has been resistance to reversal of Board 
decisions by the Court. This has discouraged the VA from realistic 
efforts at settlement of some or all issues in a case. Veterans' 
representatives accept offers to remand cases on terms that do not 
resolve many issues because they perceive that the odds of obtaining 
greater relief from the Court are very low and because the delays are 
so long. It appears to NOVA that the Office of the General Counsel 
could understandably believe that, because the odds of reversal are 
low, they have nothing to lose by refusing to resolve issues in a 
meaningful way and instead force a decision from the Court.
    Congress attempted to correct the relatively small percentage of 
reversals in 2002 when it added the phrase or reverse to 38 U.S.C. 
Sec. 7261(a)(4). Veterans Benefits Act of 2002, Sec. 401, Pub. L 107-
330, 116 Stat. 2832 (2002). The Court has not yet established 
parameters through its case law that would support a greater percentage 
of reversals. Rather, the Court has long held that reversal is only 
possible when the only permissible view of the evidence is contrary to 
the Board's decision, see Hersey v. Derwinski, 2 Vet. App. 91, 95 
(1992). Only when the Board has incorrectly applied the law, failed to 
provide an adequate statement of reasons or bases for its 
determinations, or where the record is otherwise inadequate, remand is 
generally the appropriate remedy. Washington v. Nicholson, 19 Vet. App. 
362, 371-372 (2005). But if the evidence does not preponderate against 
the claim, or where the Board has made all the necessary factual 
findings, the Court could--and should--reverse. See Washington, at 375 
(dissent by Kasold, J.); Rose v. West, 11 Vet. App. 169, 172 (1998). 
(This is not to say that medical evidence of nexus could not be 
rebutted, in an appropriate case, by medical evidence that demonstrates 
the significance of a lack of continuity of symptomatology. However, no 
such evidence exists and it is not the function of judicial review 
simply to accord the government a remand to obtain such evidence.)
  3. congress should amend title 38 to permit substitution of parties.
    Similarly, although not contained in any current legislation under 
consideration, another suggestion would be to allow the substitution of 
parties in claims that are pending and the veteran passes away before a 
decision is made. This would provide a large measure of relief to our 
aging veteran population. Under the CAVC's current 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. A 
veteran who is 85 years of age will have a life expectancy of about 6 
years and will have a 42 percent 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, more than a few of my clients have died during the appeals 
process. Other attorneys report as many as 10 deaths during the appeal 
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 anew 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.
             4. congress should require the cavc to add to 
                   the information reported annually
    Detailed review of the content of the CAVC's Annual Report compels 
NOVA to suggest that the following additional information should be 
included to provide valuable insight into the operation of the CAVC. 
This additional information will assist Congress in analyzing the 
CAVC's case load and work load:

     The number of appeals filed annually.
     The number of petitions filed annually.
     The number of applications filed under section 2412 of 
title 28 annually.
     The number of cases resolved by the parties 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 requested and held.
     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.

    Obviously, NOVA is concerned with protecting the privacy and 
security concerns of veterans whose appeals are filed in Court and this 
concern is heightened by the move to provide for electronic filing and 
retrieval of records. For that reason we support S. 2090.
    Since 1992, Mr. Cohen has been representing veterans before the 
United States Court of Appeals for Veterans Claims (CAVC) and the 
Department of Veterans Affairs (DVA). In that time, he has successfully 
represented veterans in Court and before the Department of Veterans 
Affairs. In addition, Mr. Cohen has represented veterans before the 
United States Court of Appeals for the Federal Circuit. In November 
2006, Mr. Cohen was elected to serve as the President of the National 
Organization of Veterans Advocates, Inc. (``NOVA'') and he continues to 
serve in that capacity. Mr. Cohen has presented at the CAVC Judicial 
Conferences and is a member of the CAVC Bar Association.
 education: b.m.e., june 1968, the city university of new york, school 
    of engineering; j.d. june 1973, fordham university school of law
                            court admissions
    NY 1974
    WV 1979
    Supreme Court of United States of America 1977
    United States Court of Appeals for the Federal Circuit 1994
    United States Court of Appeals for Veterans Claims 1993
    United States Court of Appeals for the 2nd Circuit 1974
    United States Court of Appeals for the 4nd Circuit 1985
    United States District Court for the Southern District of New York 
1974
    United States District Court for the Southern District of West 
Virginia 1979
    United States District Court for the Northern District of West 
Virginia 1979
                     associations and organizations
    American Bar Association
    CAVC Bar Association
    West Virginia State Bar

    National Organization of Social Security Claimants Representatives
    National Organization of Veterans Advocates-Board Member since 
2005, President since November 2006
    Neither Mr. Cohen nor NOVA have received any federal grant money or 
contract work in the last two years related to this testimony.

    Senator Akaka. Thank you, Mr. Cohen.
    Ms. Cote?

  STATEMENT OF CHRISTINE COTE, LITIGATION ATTORNEY, NATIONAL 
                VETERANS LEGAL SERVICES PROGRAM

    Ms. Cote. Mr. Chairman, I am pleased to be here this 
morning to speak on behalf of NVLSP as you address the 
performance and structure of the Court. My testimony will touch 
on S. 2090, to protect privacy and security concerns in court 
records, and our support of S. 2091, to increase the number of 
the Court's active judges.
    I will also relay some of the frustration experienced by 
disabled veterans and their families as they maneuver this 
judicial appeal process--some frustrations that could be 
alleviated through legislation.
    In his September 2007 letter to this Committee, Chief Judge 
Greene proposed that section 7268 be amended to provide CAVC 
with the same authority to limit public access to records as 
provided to the Article III courts in light of the sensitivity 
of the case records or simply to amend the language of 7268 to 
allow that only decisions and orders of the Court or motions 
and briefs of the party be accessed by the public. We agree 
with this. Redaction of certain Court documents versus limiting 
the public's access to these documents would increase the 
workload of the Court and the parties to an appeal drastically, 
and in the event that documents are not properly redacted, we 
are looking at the release of sensitive information to the 
public.
    As we all talked about this morning, since Chief Judge 
Greene recalled several retired judges to assist in the 
handling of the Court's caseload, we have seen almost a 30 
percent increase in productivity. It follows that a permanent 
increase in the number of seated judges could meet that level, 
and as I noted in my written testimony, when one considers that 
permanent judges will not be facing the multiple learning 
curves that multiple recalled judges will typically, the 
productivity level may even exceed the current level. 
Therefore, NVLSP strongly supports passage of S. 2091.
    As I indicated, I also want to talk about a couple other 
nagging problems that could be corrected through amendments to 
Chapter 72. The first involves the cases of Best and Mahl. As 
Mr. Cohen discussed, CAVC held that when it concludes that 
there is a legal error in a board decision requiring remand, it 
will generally decide the case on the narrowest possible 
grounds and address the other errors raised in briefing. And it 
is true that in the short term it is a good thing. It allows 
the Court to dispose of cases more quickly. However, it allows 
the board to reject all of the other allegations of error not 
touched on by the Court, and this vicious remand-appeal cycle 
starts all over again, adding years to the adjudication process 
and duplication of work by not only the appellant and his 
representatives in the Government but the Court. And this is 
what we are here to talk about. Chapter 72 should be amended to 
require that all disputed issues raised in briefing be resolved 
by the Court.
    Another nagging problem is the inability of survivors to 
step in and substitute for a deceased veteran whose appeal is 
pending before CAVC. In April of this year, I testified before 
the House Committee's Disability Assistance Subcommittee on 
this very issue.
    As a general rule, qualifying survivor under the accrued 
benefits statute, 5121, cannot continue a claim and have to 
start a brand-new claim for accrued benefits at the regional 
office level regardless of where the claim was in the 
adjudication process. It could have made it all the way up to 
the Court. It could have been fully developed. The Court could 
have worked it. And yet they have to go to the back of the line 
and go back to the RO. This is unjust and inefficient.
    The Federal Circuit carved out a very narrow exception to 
this in Padgett v. Nicholson this year, but in order to be able 
to substitute, they held where the veteran or other claimant 
had appealed his claim all the way to the CAVC, the death 
occurred after all of the legal briefs were filed and the CAVC 
has interpreted it to mean that this includes also the reply 
briefs, and there is nothing left to do but issue a decision 
and there is an identifiable survivor for accrued benefits 
purposes, then CAVC is free to keep the decision on the books. 
Mrs. Padgett was lucky. Most veterans will not be as lucky, 
will not fit into this criteria, and we urge that qualifying 
survivors be able to step in and continue a claim started by 
the deceased when it is pending before the CAVC.
    The final relevant problem I would like to address involves 
class action certification, class action authority. Prior to 
the VJRA in 1988, district courts had authority to certify 
lawsuits challenging VA rules and policies as a class action on 
behalf of large groups of similarly situated veterans. With the 
introduction of the VJRA, jurisdiction shifted to the newly 
created CAVC and the Federal Circuit, and the Congress did not 
address the authority to certify a class. The courts took that 
to mean they did not have the authority.
    The Haas case and cases like it illustrate why class action 
authority would be a good thing. After 10 years of granting 
disability benefits to Navy blue water veterans suffering from 
one of the Agent Orange presumptive diseases, VA abruptly 
changed course and issued a manual provision that, in order to 
receive service-connected benefits based on this presumption, 
the veteran must have set foot on the land mass of Vietnam. 
Thousands of blue water veterans were denied benefits under 
this manual provision, and many had their benefits severed 
based on this 2002 rule change. The VA manipulated the system 
oftentimes by settling with certain blue water veterans when 
their case is pending before the CAVC could issue a 
precedential decision addressing the legality of this ``set 
foot in Vietnam'' rule. Last year in Haas the Court decided 
that the ``set foot on land'' rule was actually illegal. VA 
appealed the decision to the Federal Circuit. It is being 
argued today down the street.
    So until a decision is issued by the Federal Circuit in 
Haas, which could be more than a year away, VA staffers are 
under a moratorium not to adjudicate these blue water veteran 
claims. So VA will now have successfully withheld benefits from 
veterans from the rule change in 2002 through next year at a 
minimum, and this is a 6-year period in which benefits are 
being withheld from blue water veterans. Not only would class 
action authority make sense because it creates greater 
efficiencies by allowing the Court to dispose of cases 
consistently and in greater numbers, but it would also prevent 
such agency abuses in the future.
    I thank you for your time.
    [The prepared statement of Ms. Cote follows:]
  Prepared Statement of Christine Cote, Litigation Attorney, National 
                    Veterans Legal Services Program
    Chairman Akaka and Members of the Committee:

    I am pleased to have the opportunity to appear before you on behalf 
of the National Veterans Legal Services Program (NVLSP) to offer our 
views on issues relating to the U.S. Court of Appeals for Veterans 
Claims (CAVC).
    NVLSP is a non-partisan, non-profit veterans service organization, 
which expressed support for bills throughout the 1980's to repeal the 
longstanding bar to judicial review of VA adjudication of claims for 
benefits. Since the CAVC was created in 1988, NVLSP has represented 
over 1,000 VA claimants before the Court. NVLSP is one of four veterans 
service organizations making up the Veterans Consortium Pro Bono 
Program. As part of that program, NVLSP recruits, trains, and mentors 
volunteer lawyers to represent veterans who appeal to the CAVC. 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 publishes educational manuals that have been 
distributed to thousands of veterans advocates to assist them in their 
representation of VA claimants.
    NVLSP commends Chief Judge Greene, and the other CAVC judges and 
staff, for the steps they have taken to date to promote the expeditious 
handling of cases. My testimony will touch on our support of S. 2090, 
to protect privacy and security concerns in court records, and S. 2091, 
to increase the number of the Court's active judges.
    I will also relay some of the frustration experienced by disabled 
veterans and their family members in navigating the VA claims judicial 
appeal process. (These issues are addressed in Sections III and IV 
below.) We will call attention to a few significant problems in the 
appeal process in need of legislative action.
                               i. s. 2090
    The CAVC will shortly roll out an e-filing system similar to those 
of other Federal Appellate Courts. E-filing will create efficiencies in 
the delivery of legal documents to the Court, including paperwork 
reduction, and convenience in filing and in accessing uploaded records. 
NVLSP welcomes the implementation of this system. 38 U.S.C. Sec. 7268 
provides that ``[t]he Court may make any provision which is necessary 
to prevent the disclosure of confidential information, including a 
provision that any such document or information be placed under seal to 
be opened only as directed by the Court.'' 38 U.S.C.Sec. 7268(b)(1).
    In his September 13, 2007 letter to this Committee, Chief Judge 
Greene suggested that section 7268(a) be amended to limit remote access 
to the full case file to the parties to an appeal, and their attorneys. 
Judge Greene astutely noted that veterans cases should be afforded the 
same considerations provided to Social Security and Immigration appeals 
by the Judicial Conference's proposed Rule 5.2 (of the Committee on 
Rules of Practice and Procedure)--in light of the sensitivity of 
information contained in such case files.
    Judge Greene proposed that section 7268 be amended to provide the 
CAVC with the same authority to limit access to Court records given to 
Article III Courts; or simply to amend the language of section 7268 to 
allow that only decisions and orders of the Court, and briefs and 
motions of the parties, are accessible by the public. We feel strongly 
that redaction of certain Court documents rather than limiting access 
to these documents, as noted above, would increase the workload of the 
Court and the parties to an appeal exponentially, and, more 
importantly, could permit sensitive information being inadvertently 
released to the public in the event of errors in redaction.
                              ii. s. 2091
    There has been a dramatic increase in the number of cases being 
received by the CAVC, and it is expected that over 4,500 appeals will 
have been filed this year. According to the Board of Veterans' Appeals 
2006 Annual Report, the Board's denial rate has increased from 24.2 
percent for FY2004 to 38.1 percent for FY2005 to 46.3 percent for 
FY2006--this is a nearly twofold increase over a 2-year period. This 
increase, particularly if it continues, could mean that the number of 
cases appealed to the CAVC could be proportional.
    Since Chief Judge Greene recalled several retired judges to assist 
in the handling of the CAVC caseload, the Court's productivity has 
increased almost 30 percent. It stands to reason that a permanent 
increase in the number of seated judges could meet the productivity 
shown in the recall project. In fact, when one considers that permanent 
judges will not require repeated ``learning curves,'' as multiple 
recall judges may, the productivity from the additional permanent 
judges may very well exceed the productivity levels of Judge Greene's 
recall project. As such, NVLSP strongly favors the enactment of S. 
2091.
                         iii. the hamster wheel
    Those who represent disabled veterans before the CAVC with any 
regularity use a certain phrase to describe the system of justice these 
veterans often face: ``the Hamster Wheel.'' This phrase refers to the 
phenomenon of a claim being sent back and forth between the CAVC and 
the Board, and the Board and the RO, before it is ever finally decided. 
This system often results in veterans having to wait years before there 
is a final decision on their claim.
    We have identified several aspects of the CAVC decisionmaking 
process that contribute to this ``Hamster Wheel'' including: (1) the 
policy adopted by the CAVC in 2001 in Best v. Principi, 14 Vet. App. 
18, 19-20 (2001) and Mahl v. Principi, 15 Vet. App. 37 (2001); and (2) 
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.''
                        consider this scenario:
     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 decision and files a brief arguing 
that the Board made various legal errors in denying the claim. In 
response, the VA files a brief defending the VA actions;
     5 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. Then, a year later, a single judge issues a 
decision resolving only one of the many errors raised by the parties. 
The single judge issues a decision stating that the Board erred in one 
of the ways discussed in the veteran's brief and vacates and remands 
the BVA decision as to the one error, but does not resolve the other 
alleged errors raised by the parties because the veteran can raise the 
error 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 again rejects the allegations of Board error that 
the CAVC refused to resolve when the case was before the CAVC. Six or 
more 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.

    Best and Mahl may benefit the Court in the short term by allowing a 
judge to finish an appeal in less time than would be required if he or 
she had to resolve all of the other disputed issues. However, the CAVC 
is likely not 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, 
Court staff and at least one judge, not to mention veterans and their 
advocates, will have to duplicate the time expended on the case during 
the first go-around. Congress should amend Chapter 72 of Title 38 to 
correct this obstacle to efficiency and justice.

    B. How Case Law Requiring CAVC to Dismiss and Appeal if the Veteran 
Dies While the Appeal is Pending Contributes to the Hamster Wheel.

    If an individual, who has filed a claim for VA benefits, dies while 
the claim is pending before a VA regional office, the Board of 
Veterans' Appeals, or a reviewing court, the pending claim dies as 
well. This is true for claims for disability compensation, pension, 
dependency and indemnity compensation (DIC), and death pension. See 
Richard v. West, 161 F.3d 719 (Fed. Cir. 1998); Zevalkink v. Brown, 102 
F.3d 1236 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42 (1994). A 
survivor may not step into the shoes of the deceased claimant to 
continue or to appeal the claim--no matter how long the claim has been 
pending in the VA claims adjudication process.
1. the route surviving family members have to travel to obtain benefits 
                 based on the deceased claimant's claim
    In order to obtain the benefits that the deceased claimant was 
seeking at the time of death, a brand new claim for benefits, called 
accrued benefits, must be filed. See 38 U.S.C. Sec. 5121, 38 C.F.R. 
Sec. 3.1000. Only certain surviving family members may pursue a claim 
for accrued benefits. An individual satisfying the definition of a 
surviving spouse may apply for accrued benefits. If there is no 
surviving spouse, a surviving child may qualify as a claimant, but only 
if he or she is: (a) unmarried and under the age of 18; or (b) under 
the age of 23, unmarried, and enrolled in an institution of higher 
education. If there is no surviving spouse or qualifying surviving 
child, a surviving parent may apply for accrued benefits but only if he 
or she was financially dependent on the claimant at the time of the 
claimant's death. No brothers or sisters or other family members may 
apply for accrued benefits. See 38 U.S.C. Sec. Sec. 101, 5121; 38 
C.F.R. Sec. 3.1000(d).\1\
---------------------------------------------------------------------------
    \1\ There is one narrow exception: Accrued benefits may be paid to 
reimburse any individual who bore the expense of the last sickness or 
burial--but only to the extent of the actual expenses incurred.
---------------------------------------------------------------------------
                             2. time limits
    The application for benefits must be filed within 1 year of the 
date of the claimant's death. VA regulations do allow for extensions of 
time to file outside of the 1-year period, but only if the survivor is 
able to demonstrate ``good cause.'' 38 C.F.R. Sec. 3.109(b). Thus, the 
VA may allow for an extension of time, but is not required to do so.
                  3. no new evidence can be submitted
    The survivor also cannot submit new evidence to show that the 
deceased claimant is entitled to the benefits sought. Accrued benefits 
determinations can only be ``based on evidence in the file at date of 
death.'' 38 U.S.C. Sec. 5121 The VA regulations provide that ``evidence 
in the file'' means evidence within the VA's constructive possession, 
on or before the date of death, but that would only include evidence 
like existing service personnel records or existing VA medical records. 
See 38 C.F.R. Sec. 3.1000(a); 67 Fed. Reg. 65,707 (2002).
    4. limitations on the types of benefits that qualify as accrued 
                                benefits
    The opportunity for a qualified survivor to receive accrued 
benefits under section 5121 is restricted to pending claims of the 
deceased for ``periodic monetary benefits.'' To be a claim for 
``periodic monetary benefits'', the benefits must be the type that are 
``recurring at fixed intervals'', such as disability compensation.
    Many claims are for benefits that are not periodic monetary 
benefits. For example, in Pappalardo v. Brown, 6 Vet. App. 63 (1993), 
the Court held that a claim for a one-time payment for specially 
adapted housing reimbursement assistance under 38 U.S.C. Chapter 21 did 
not qualify as a claim for periodic monetary benefits for purposes of 
Section 5121. This is so even though the family had already incurred 
the expense of remodeling the home in accordance with standards 
approved by the Boston VARO to meet the needs of the veteran, who had 
lost the use of both lower extremities due to a service-connected 
disease, and who died while the housing assistance claim was pending.
  5. the recent court decision carving out an exception to the harsh 
                       rules that currently exist
    When a claimant with a pending claim dies before a final decision 
is rendered, the survivor must start the claim all over again at a VA 
regional office, regardless of how far the pending claim had proceeded 
in the adjudication process. The inability of the survivor to 
substitute and pick up where the claimant left off can add years to the 
claims process by requiring the agency to address an entirely new claim 
where there had already been development of another claim raised by the 
deceased.
    Frustrated survivors have long sought to continue to prosecute a 
deceased claimant's disability compensation claim at the Court level. 
See, e.g., Zevalkink, supra; Landicho, supra at 47. In Padgett v. 
Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), the Federal Circuit carved 
out a very limited exception to the harsh rule that a claim dies with 
the claimant.
    In Padgett, more than twelve years after Mr. Padgett initiated his 
claim, the Court issued a decision reversing the Board's denial and 
ordering the VA to grant the veteran's disability claim for a hip 
condition. However, counsel for the veteran learned that Mr. Padgett 
died in November 2004, shortly before the Court's decision. The 
Secretary filed a motion to rescind the reversal and dismiss the 
appeal. The veteran's surviving spouse filed a motion to be substituted 
as a party to the appeal. The CAVC granted the VA's motion to dismiss--
wiping the victory off the books, and denied Mrs. Padgett's motion for 
substitution, following the normal rule that the claim died when Mr. 
Padgett died.
    NVLSP appealed the Veterans Court's decision on Mrs. Padgett's 
behalf to the U.S. Court of Appeals for the Federal Circuit. The 
Federal Circuit responded by carving out a very narrow exception. In a 
case like Mr. Padgett's, in which: (a) the veteran had appealed his 
claim all the way to the CAVC; (b) the CAVC issued its decision before 
it became aware that the veteran had died; and (c) the death occurred 
after all of the legal briefs had been filed with the CAVC so that 
there was nothing left to do but to issue a decision; then (d) the CAVC 
could keep its decision on the books by making it effective retroactive 
to the date of the veteran's death, and allow the surviving spouse to 
substitute for the veteran in the appeal before the CAVC.
    Although Mrs. Padgett received the 12 years' worth of disability 
benefits for Mr. Padgett's hip disability, most family members of a 
veteran who dies while his claim is pending before the VA will not be 
this lucky-and NVLSP urges that family members of a veteran who dies 
while his or her claim is pending before the agency be permitted to 
substitute for the veteran and continue the claim.
    iv. inefficiency and injustice due to the lack of class action 
                               authority
    NVLSP would also like to address the inefficiency from the Federal 
courts lack of clear authority to certify a veteran's lawsuit as a 
class action. Prior to the Veterans' Judicial Review Act (VJRA) in 
1988, U.S. district courts had authority to certify a lawsuit 
challenging VA rules or policies 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 rule or policy was unlawful, it had 
the power to ensure that all similarly situated veterans benefited from 
the court's decision.
    With the enactment of the VJRA, 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 CAVC. However, 
Congress failed to address the authority of the Federal Circuit and the 
CAVC to certify a case as a class action and the CAVC and Federal 
Circuit ruled that the CAVC does not have authority to entertain a 
class action. See, e.g., Lefkowitz v. Derwinski, 1 Vet. App. 439 
(1991); Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1378 
(Fed. Cir. 2002).
    From 1991 to 2002, the VA granted 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 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, VA denied all pending and new 
disability claims filed by Navy blue water veterans for an Agent 
Orange-related disease unless there was proof that that veteran 
actually set foot on Vietnamese soil and severed benefits that had been 
granted to Navy blue water veterans prior to the 2002 rule change.
    In November 2003, the CAVC set panel argument to hear the appeal of 
Mrs. Andrea Johnson, the surviving spouse of a Navy blue water veteran 
who was denied service-connected DIC by the BVA because the deceased 
husband, who died of an Agent Orange-related cancer, never set foot on 
Vietnamese soil. See Johnson v. Principi, U.S. Vet. App. No. 01-0135 
(Order, Nov. 7, 2003). Mrs. Johnson's attorneys challenged the legality 
of the 2002 Manual M21-1 provision mentioned above and it appeared that 
the CAVC would issue a precedential decision deciding the legality of 
VA's set-foot-on-land requirement.
    Six days before oral argument, the VA General Counsel's Office 
offered the widow full DIC benefits retroactive to the date of her 
husband's death, the maximum benefits that she could possibly receive. 
Once Mrs. Johnson signed the settlement agreement, oral argument was 
canceled and the appeal was dismissed. The settlement allowed the VA to 
continue 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 veterans and survivors who were denied benefits based on the 
2002 rule gave up and did not appeal the RO decision. Some appealed the 
RO denials 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 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 pursued his claim all the way to the CAVC was 
former Navy Commander, Jonathan L. Haas. Commander Haas filed his 
appeal in March 2004. The CAVC ultimately scheduled oral argument 
before a panel for January 10, 2006. This time, 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).
    In October 2006, the VA appealed the decision in Haas to the U.S. 
Court of Appeals for the Federal Circuit. The matter is scheduled for 
argument today and will be argued by NVLSP Joint Executive Director, 
Barton Stichman.\2\
---------------------------------------------------------------------------
    \2\ S. 2026, currently pending before this Committee, would nullify 
the CAVC decision in Haas and would rob thousands of Navy blue water 
veterans of disability compensation and free medical care for Agent 
Orange related diseases as well as retroactive disability compensation 
under the Nehmer stipulated agreement. NVLSP urges swift defeat of this 
measure.
---------------------------------------------------------------------------
    Then-Secretary of Veterans Affairs Nicholson ordered a moratorium, 
in effect until the Federal Circuit issues its decision, which 
prevented the 57 VA ROs and the BVA from deciding any claim filed by a 
blue water veteran or survivor based on an Agent-Orange related disease 
unless there is evidence that the veteran set foot on land.\3\
---------------------------------------------------------------------------
    \3\ Even if VA loses its challenge to the CAVC decision, it will 
still have succeeded in withholding disability benefits from thousands 
of blue water veterans and survivors for the period 2002 to 2008.
---------------------------------------------------------------------------
    If the CAVC or Federal Circuit had authority to certify a case as a 
class action on behalf of similarly situated VA claimants, and 
certified Mrs. Johnson's lawsuit case as a class action, the VA would 
not have been able to end the case by settlement. 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.
    If the Federal Circuit rules in favor of the Navy blue water 
veterans, no law requires the VA to identify similarly situated 
claimants, not included in the moratorium, or to notify these similarly 
situated claimants about the Court's decision. Even if these claimants 
somehow find out about the Court decision and reapplied, the VA could 
refuse to pay them the retroactive benefits that it paid to the 
claimants subject to the 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.'' \4\ 
Legislative action is needed to ensure that situations like this do not 
occur in future.
---------------------------------------------------------------------------
    \4\ Revision of a final VA decision requires a showing of CUE, a 
high evidentiary burden.
---------------------------------------------------------------------------
    Thank you for holding such an important hearing and inviting our 
participation. Thank you also for allowing us to highlight some of the 
problems faced by disabled veterans and their families during the 
judicial appeal process.

    Senator Akaka. Thank you very much.
    Joe Violante?

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

    Mr. Violante. Aloha, Mr. Chairman. On behalf of the 
Disabled American Veterans, I want to thank you and the 
Committee for conducting this timely hearing on the United 
States Court of Appeals for Veterans Claims.
    For the most part, the superimposition of judicial review 
on the administrative processes of the Department of Veterans 
Affairs has had a positive effect. On a personal note, let me 
say that I spent 5 years at the Board of Veterans' Appeals, and 
in 1990, I was hired by DAV to represent veterans before the 
newly formed Court.
    As a veterans' advocate, I became frustrated with the 
Court's failure to deal with the legal arguments presented by 
appellants; that is, their reluctance, the Court's reluctance, 
to reverse rather than remand a case. And we have heard that 
previously this morning.
    For example, after presenting a brief which argued for the 
reversal of a BVA decision, counsel for the Secretary would 
confess error, alleging that the board failed to provide 
adequate reasons or bases for its decision; whereupon, the 
Court would remand the case to the board, and the evidentiary 
record would be open for further development, notwithstanding 
the appellant's argument that the record was insufficient to 
establish entitlement to the benefits sought. Unfortunately, 18 
years after the Court began hearing appeals, this practice 
continues. In too many cases, an appellant must appeal to the 
Court at least twice to receive a decision on the merits of his 
or her appeal.
    For the record, at least year's hearing, Robert Chisholm, 
Past President of the National Organization of Veterans' 
Advocates, noted that the Court's practice of refusing to 
reverse board decisions resulted in many cases on appeal to the 
Court are there for the second, third, or fourth time, often 
with the same issues to be decided. And Mr. Cohen this morning 
mentioned the fifth time. So it is not being corrected.
    In those cases where the board has obviously failed to 
provide adequate reasons or bases, it would make more sense to 
require the board on remand to explain its decision based on 
the evidence of record at the time of the original board 
decision, provided the appellant has not argued that the record 
on appeal was defective. By requiring the board to explain its 
decision based on the evidence of record, the VA would be 
prohibited from going on a fishing expedition to develop 
evidence to support its prior erroneous denial of benefits. 
Allowing VA to develop evidence after having seen the 
appellant's arguments regarding defects in the prior denied 
decision provides VA with a distinct advantage of appellants.
    Accordingly, I would recommend that when the Court 
determines the board's decision is defective for failure to 
state adequate reasons or bases and the appellant has not 
alleged any defects in the evidence of record, the board should 
be required to articulate its decision based on the evidence of 
record. In all other cases where the evidence is sufficient to 
establish entitlement to the benefits sought, the Court should 
and must reverse the BVA decision.
    Another frustration experienced by appellants is delays in 
obtaining a disposition from the Court, especially in single-
judge decisions. In the Court's requirements in Frankel v. 
Derwinski, 1 Vet. App. 23, these cases could be summarily 
decided by order on appeal when the case on appeal was of 
relative simplicity and does not establish a new rule of law, 
does not alter, modify, criticize or clarify an existing rule 
of law, does not apply to an established rule of law, to a 
novel fact situation, and does not constitute the only binding 
precedent on a particular point of law, does not involve a 
legal issue of continuing public interest, and the outcome is 
not reasonably debatable. Unfortunately, many of these single-
judge decisions take a year or longer to decide. It is 
difficult to understand why an appeal of relative simplicity 
should take an inordinate amount of time to decide.
    Mr. Chairman, I believe that this Committee should re-
examine the Court's reporting criteria and require the Court to 
provide a more detailed summary of case dispositions and 
processing times as discussed in my written statement and as 
discussed previously.
    This concludes my remarks, and I would be happy to answer 
any questions.
    [The prepared statement of Mr. Violante follows:]
Prepared Statement of Joseph A. Violante, National Legislative Director 

                   of the Disabled American Veterans
    Mr. Chairman and Members of the Committee:

    On behalf of the more than 1.5 million members of the Disabled 
American Veterans (DAV) and its Auxiliary, I wish to express my 
appreciation for this opportunity to present the views of our 
organization on the performance and structure of the United States 
Court of Appeals for Veterans claims (the Court or CAVC), and draft 
legislation. DAV shares your interest in ensuring veterans and their 
families have effective and efficient claims and appeals processes.
    Since Congress enacted legislation in 1988 authorizing judicial 
review of decisions by the Board of Veterans' Appeals (the Board or 
BVA), and establishing what is now the United States Court of Appeals 
for Veterans Claims with special jurisdiction for that purpose, the 
complexion of the claims and appeals processes for veterans and other 
claimants has changed dramatically. For the most part, the 
superimposition of judicial review on the administrative processes of 
the Department of Veterans Affairs (VA) has had a positive effect.
    Prior to judicial review, almost two-thirds of BVA decisions were 
denied. About 20 percent of BVA decisions were remanded, and roughly 10 
percent were allowed. In fiscal year (FY) 1990, for example, the BVA 
decided 46,556 cases; 62 percent were denied, 24 percent were remanded, 
and 13 percent were allowed. By fiscal year 1992, remands soared to 51 
percent, denials dropped to 33 percent, and allowances inched up to 16 
percent. That year BVA decided 33,483 appeals. Fast forward to fiscal 
year 2007 when BVA decided 40,399 cases, and about 21 percent of the 
appeals were allowed, a little more than one-third were remanded, and 
41 percent were denied. With independent review from outside VA, we 
have seen the law examined to ensure it is carried out according to 
congressional intent, and to ensure that correct application of the law 
takes priority over administrative expedience.
    Expedience and efficiency are, of course, not synonymous. Neither 
does efficiency mean solely speed nor a constrained expenditure of 
resources, but rather that a thing is done as well as possible with 
optimum speed and with the fewest resources necessary. There must be a 
balance among quality, speed, and resources. Because, in the name of 
efficiency, political forces often unrealistically press administrative 
agencies to produce more with less, real efficiency suffers. When that 
happens with VA, as it so often does, veterans suffer the consequences 
of the adverse impact. Judicial review can correct the injustices that 
result; however, more must be done to ensure that justice prevails.
    By design, courts operate independently of these kinds of political 
pressures, and are therefore theoretically better guardians of the law 
and justice. Autonomy brings with it a special obligation to 
conscientiously pursue efficiency without outside pressure, however. 
Increasing caseloads and slower processing times in a court may simply 
be the product of more work without a commensurate increase in 
resources, or it could signal declining efficiency, or both.
    The Court rightfully has a great deal of independence, but it 
should not operate without any oversight. As an ``Article I'' court, 
CAVC is an instrumentality of Congress, unlike Article III courts. So 
long as it does not affect the independence of the decisionmaking, or 
encroach upon the broad discretion as to internal operating procedures, 
the DAV believes that limited oversight is appropriate. Should Congress 
find an imbalance between resources and workload, it is Congress' 
responsibility to remedy the shortfall through additional funding or 
any authority necessary to use available resources in different ways. 
Should Congress conclude that increasing case backlogs are the product 
of inefficiency, it can leverage improvement through more general 
pressures and without direct interference in the operations or 
decisionmaking processes. These principles involve no mysteries or 
concepts of which this Committee is unaware, but we believe they merit 
restating to provide an analytical foundation for consideration of the 
matters to be addressed.
    In his July 13, 2006, written statement to this Committee, Chief 
Judge William P. Greene, Jr., discussed ``the sudden increase in 
appeals filed with the Court.'' In April 2005, the Court reportedly 
started receiving more than 300 appeals per month, compared with a 
monthly average of 200 appeals during the previous 8 years. That trend 
had continued during the second quarter of 2006 through June 30, 2006. 
On a positive note, he reported that the Court was on pace to dispose 
of more than 2,700 appeals--more than in all but one of the last 10 
years.
    The Chief Judge pointed to an increased number of denied appeals by 
BVA in fiscal year 2005. In fiscal year 2005, BVA issued over 13,000 
denials, compared with 9,299 the previous year. In addition, he noted 
not only that there was an increased awareness among veterans and their 
families, but also ``a growing perception among veterans of the value 
of judicial review.''
    VA's fiscal year 2008 Budget Submission indicates the number of 
veterans filing initial disability compensation claims and claims for 
increased benefits has increased every year since 2000, with disability 
claims increasing from 578,773 in fiscal year 2000 to 806,382 in 2006. 
By our calculation, this represents an average annual increase of more 
than 6 percent in the 6 years from the end of fiscal year 2000 to the 
end of fiscal year 2006. VA projects it will receive 800,000 claims in 
fiscal year 2007 and 2008.
    Although the number of appeals listed as denied by BVA may be the 
best indicator of potential workload for the Court, appeals to the 
Court come from the total number of cases decided on the merits that 
is, not remanded. Cases listed by BVA as ``allowed'' may not have been 
decided fully favorably or favorably on all issues. Of the 31,397 total 
BVA decisions in fiscal year 2003, the allowed and denied together 
totaled 16,874; for fiscal year 2004, this total was 15,860; for fiscal 
year 2005, it was 20,128; for fiscal year 2006, it was 25,644; and, for 
fiscal year 2007, the total was 25,062. The caseload volume upstream 
can be expected to influence the workload volume downstream, with some 
lag time. The input volume at the Court is an indicator of resource 
needs; the output volume is an indicator of efficiency.
    In his written statement, Chief Judge Greene acknowledged that for 
the first time in 6 years, the Court was fully staffed; although four 
judges had very little experience in the first half of 2005, and did 
not have a full complement of staff until October 2005. However, he 
cautioned that he expected the upward trend of new cases to continue. 
He referenced a feasibility study by the General Services 
Administration and two consultant companies, which estimated an 
incoming caseload of 3,600 or more cases per year requiring a total of 
nine full-time judges and additional staff.
    Chief Judge Greene reported that as of June 30, 2006, the Court's 
docket contained 5,850 cases. Of those, 3,598 cases were awaiting 
action by either the appellant or the appellee and were not ready for 
screening or review by the Court. There were 436 cases that had been 
decided, but were on appeal to the United States Court of Appeals for 
the Federal Circuit. Additionally, 414 cases were decided, but were 
pending entry of judgment or awaiting mandate. There were 153 cases 
waiting for a decision on applications for attorney fees under the 
Equal Access to Justice Act. The Court's central legal staff was in the 
process of screening or engaged in alternative dispute resolution in 
326 cases. That left 923 cases in chambers for judicial review and 
decision.
    According to the Court's annual reports, the number of new cases 
declined from 2,442 in fiscal year 2000 to 2,296 in 2001 and 2,150 in 
2002. That number increased to 2,532 in 2003, declined to 2,234 in 2004 
and rose to 3,466 in fiscal year 2005. Increases were reported in 
fiscal year 2006 and fiscal year 2007, 3,729 and 4,643, respectively. 
The total cases decided for those years were: 2,164 in fiscal year 
2000; 3,336 in 2001; 1,451 in 2002; 2,638 in 2003; 1,780 in 2004; 1,905 
in fiscal year 2005; 2,842 in fiscal year 2006; and 4,877 in fiscal 
year 2007. Cases that went to a full decision on the merits, presumably 
those that most reflect the Court's production, increased from 1,619 in 
fiscal year 2000 to 2,853 in fiscal year 2001, dropped precipitously to 
972 in 2002, increased to 2,152 in fiscal year 2003, dropped 
substantially again to 1,337 in fiscal year 2004, declined even more to 
1,281 in fiscal year 2005. They increased substantially to 2,135 and 
3,211 in fiscal year 2006 and fiscal year 2007, respectively. We note 
that the Court received 2,532 new cases in fiscal year 2003, and 
decided a total of 2,638, of which 2,152 were merits decisions, as 
compared with fiscal year 2005 when it received 3,466 and decided a 
total of 1,905, of which 1,281 were merits decisions. In 2005, the 
Court issued 56 fewer merits decisions than in fiscal year 2004. 
Decisions on the merits increased substantially in fiscal year 2006 and 
2007. We note that the Court counts cases remanded on joint motions by 
the parties as merit decisions.
    The Court's annual reports show the average ``Time from filing to 
disposition'' was 379 days for fiscal year 2005 and in fiscal year 
2007, it was 416 days. Chief Judge Greene stated in his testimony: ``We 
are reviewing and evaluating innovative ways to be as productive as we 
can to reduce our pending caseloads and to achieve currency--but not at 
the expense of forfeiting due process or limiting the opportunity to 
give each case the benefit of our full and careful judicial review.''
    The Chief Judge reported seven actions he had implemented or was 
considering:

    1. Carefully tracking the productivity of all segments of the 
court.
    2. Using retired judges eligible for recall under title 38, United 
States Code, section 7299.
    3. Looking at using judges or retired judges for settlement 
conferences.
    4. The use of a joint appendix as the record on appeal.
    5. Summary disposition of cases without explanation, where the 
appellant is represented.
    6. Implementation of a case management/electronic case files system 
(e-filing).
    7. Making a Veterans Court House and Justice Center a reality based 
on the need for adequate space for recalled judges or any additional 
full-time active judges and staff.

    Unfortunately disabled veterans who are often elderly and quite 
sick must wait for unacceptably long periods of time for resolution of 
their appeals, and substantial percentages prevail ultimately. No doubt 
protracted delay creates a hardship for many.
    Although we can draw some inferences from the data publicly 
reported by the Court, much about the Court's internal operations is 
not transparent to the public, and more precise efficiency 
determinations would require data on the flow of cases, timelines, and 
volume of cases pending in each judge's chambers, as well as delays 
attributable to motions for extension of time by VA and appellants' 
counsel.
    To make the Court's internal operations more transparent, we would 
recommend that the Court provide: Specific data showing the time that 
transpired following the date on which the appellant's reply brief was 
filed would be one avenue to serve this purpose. Once the appellant's 
reply brief is filed, or 20 days following the appellee's brief if no 
reply brief is filed, the case is before the Court for resolution. 
According to the Court Annual Report, the judges of the Court disposed 
of approximately 3,200 appeals during fiscal year 2007. Sixty four of 
those were resolved in three-judge decisions, and only forty six of 
those were precedent decisions. The remaining were decided in single-
judge orders or memorandum decisions. Each of the 3,136 were therefore, 
under the Court's Frankel precedent, 1 Vet. App. 23 (1990), of relative 
simplicity, controlled by the existing case law, and not reasonably 
debatable. Id. at 25-26. Nonetheless, the Court not infrequently takes 
between one and 2 years to resolve similar cases.
    We understand that information about long-pending cases is gathered 
by the Court but not widely distributed. It appears that a list, the 
extent of which is not known to DAV, is compiled by the Clerk and that 
the list shows the long-pending cases in chambers. However, the 
information for all chambers is only made available to the Chief Judge. 
The associate judges receive information from the list only with 
respect to their chambers. Judges are not encouraged by their 
colleagues to complete old cases because their colleagues are unaware 
of these older cases.
    DAV believes that there is no need to unduly embarrass any judge of 
the Court. However, if the Clerk were required to include on the list 
all cases in which a reply brief had been filed 6 months or more 
earlier, and the complete list were required to be circulated to all of 
the judges of the Court, this action would encourage judges to complete 
the older cases. The Committee could consider asking the Court to 
provide the list to the Committee at a future date if efficiency did 
not improve.
    DAV believes that Congress should require an annual report from the 
Court that requires the following information:

    (1) The number of appeals filed.
    (2) The number of petitions filed.
    (3) The number of applications filed under section 2412 of title 
28, United States Code.
    (4) The number and type of dispositions, including settlements, 
cases affirmed, remanded, denied, vacated and appealed to the Federal 
circuit.
    (5) The median time from filing to disposition.
    (6) The median time from the filing of briefs to disposition.
    (7) The number of cases disposed by the Clerk of the Court, a 
single judge, multi-judge panels and the full Court.
    (8) The number of oral arguments.
    (9) The number and status of pending appeals and petitions and of 
applications for Equal Access to Justice Act fees.
    (10) A summary of any service performed by recalled retired judges 
during the fiscal year and an analysis of whether any of the caseload 
guidelines established under section 7257(b)(5) of title 38, United 
States Codes, were met during the fiscal year.
    (11) The number of cases pending longer than 18 months.

    From the inception of judicial review of claims for veterans' 
benefits, the DAV has been a major participant in providing free 
representation to appellants before the Court, to complement our free 
representation of a large share of claimants throughout the 
administrative claims and appellate processes. In support of our 
primary mission of service to veterans, we provide all resources 
necessary to enable our staff of attorneys and non-attorney 
practitioners to effectively represent appellants before the Court. We 
believe disabled veterans, and their eligible family members, should be 
able to obtain the benefits a grateful nation provides for them without 
undue burdens or cost to them.
    I am pleased to submit DAV's views of the bills under consideration 
today.
    If enacted, S. 2091 would increase the Court's number of active 
judges from seven to nine. While the DAV does not have a current 
resolution from its membership on this specific legislation, we 
question the need for more judges at this time, especially in light of 
the lack of confirmation available on the Courts operations, as noted 
above. For example, the Court has issued over 3,200 decisions on the 
merits as of September 30, 2007, only 358 cases more than in its 
previously most productive year, fiscal year 2001.
    Before DAV could support an increase of two more judges, we would 
request that this Committee require the Court included the item 
mentioned above in its annual report. Until this information is made 
available to Congress, it is, in our estimation, premature to expand 
the number of judges to nine full-time active judges.
    If enacted, S. 2090 would initiate legislation that authorizes the 
Court to establish rules governing the privacy and security of certain 
information concerning the Court's upcoming electronic filing system. 
Many Federal Courts now operate under an electronic filing (e-filing) 
system. Congress has authorized appropriations for the Court to begin 
utilizing an e-filing system that is expected to be in progress by June 
2008. However, there is currently no legislation authorizing the Court 
to promulgate rules regarding the privacy and security of electronic 
records.
    Essentially, S. 2090 empowers the Court to prescribe rules as it 
determines necessary to carry out its pending functions under an e-
filing system. The proposed legislation does not dictate to the Court 
any details requiring inclusion in such rules, but merely authorizes 
the Court to prescribe such rules ``consistent to the extent 
practicable with rules addressing privacy and security issues 
throughout the Federals Courts.'' DAV has no opposition to S. 2090.
    The DAV appreciates the Committee's interest in this aspect of the 
backlogs and delays claimants must cope with in pursuing claims and 
appeals for veterans' benefits.

    Senator Akaka. Thank you. Thank you very much.
    This question I will pose now is for each of the panelists, 
and it is to reach at what is the greatest impediment to the 
Court's efficiency. Please identify and describe what you 
believe to be the No. 1 element in the Court's operation or 
structure that would inhibit veterans from obtaining justice in 
the Court in a timely and efficient manner. Mr. Cohen?
    Mr. Cohen. Mr. Chairman, I think we have all articulated 
and probably would agree that the Best-Mahl doctrine of 
narrowly deciding the issues, of picking a procedural issue and 
deciding that but not deciding the substantive issues and 
sending it back is the single thing that causes delay in 
ultimately getting the justice to which the veterans are 
entitled. It is also the single fact that contributes to the 
large caseload because it necessarily requires the case to come 
back to the Court many, many times to get those issues decided.
    So that, narrowly deciding cases, is something that is very 
detrimental to the time concerns and to the justice given to 
veterans. And if you couple that with the reluctance of the 
Court to actually reverse decisions, as Mr. Violante was 
talking about, then you have a perfect storm where, again, you 
are going to increase the number of cases that come back.
    Senator Akaka. Thank you.
    Mr. Campbell?
    Mr. Campbell. Mr. Chairman, if the question is really about 
delay, I would note that the Court is soon going to be adopting 
electronic filing for all pleadings in the Court. This is the 
fruition of an initiative by the judges on the Court with the 
consultation of the practitioners at the Court, including the 
Government counsel. We met together in Virginia earlier this 
year, in the spring of this year through the Bar Association, 
to talk about ways to implement time savings. And that, I 
think, will be one of the major time savings by eliminating 
what is currently a protracted process for preparing the record 
before the Court. If the goals are realized from this 
conversion from paper to electronic filing, it can be predicted 
that months will be removed from the front end of most cases so 
that the judges can reach decision earlier.
    Another thing that is worth pointing out is that time 
saving is very important to my office also. We have instituted 
a triage team that looks at every new appeal that is filed in 
the Court as soon as we receive notice of docketing, to find 
those cases that can be resolved earlier rather than later in 
the proceedings, usually through a joint motion or perhaps a 
jurisdictional motion of some kind. And by that process, we are 
able to screen off perhaps as many as 20 percent of the cases 
in order to save resources and save time in dealing with the 
other cases that require a more intensive effort.
    Senator Akaka. Just to make it clear, my question was not 
only focusing on timeliness or delaying, but also on efficiency 
of the Court as well. Ms. Cote?
    Ms. Cote. Yes, I would like to follow up on that. I do 
think it is a good move to move to the Joint Appendix process. 
It will save a matter of months at the Court level that 
veterans have to wait to get their claims decided. But as Mr. 
Cohen talked about and Mr. Violante talked about, until you 
shore up the Best-Mahl problem and the Court's reluctance to 
reverse decisions, which they can, you know, freely do under 
Chapter 72, it does not eliminate the years and years of claims 
rotation from the RO to the board to the Court, back down to 
the board, back down to the RO. I mean, a few months at the 
Court, a wonderful thing, we would all welcome that. But it 
does not eliminate the years that veterans have to wait until 
their claims are finally and properly adjudicated and fully 
adjudicated.
    Senator Akaka. Joe Violante?
    Mr. Violante. Mr. Chairman, I agree with my colleagues. 
There is not much more you can say. The Court needs to address 
all of the legal arguments raised by the appellant and needs to 
reverse when it is warranted. And they are not doing that, and 
I think that would take care of a lot of the backlog that is 
currently occurring, not only at VA and the board but also at 
the Court.
    Senator Akaka. Thank you.
    I would like to ask a question about training, Ms. Cote. As 
you note in your testimony, NVLSP recruits, trains, and mentors 
volunteer lawyers to represent veterans who appeal to the 
Court. In addition to its activities with the pro bono program, 
you note that NVLSP has trained thousands of veterans service 
officers and lawyers in veterans benefits law.
    The question is: Is it difficult to train attorneys in the 
area of veterans law where court decisions and new legislation 
add another layer to its complexity?
    Ms. Cote. Is it difficult? I find it very rewarding. In 
fact, I am headed off to Seattle for training tomorrow. What I 
am finding in all of these training programs is that for many 
years, and particularly since the Walter Reed scandal and the 
other problems, attorneys want to do more to make a difference, 
so I am finding a wonderfully receptive audience and people who 
are willing to put in the time to be current on the Court's 
case law. And we are very aggressive in mentoring. There is 
communication. There is no case hand-off. We work with them as 
they prepare their pleadings. They are the attorney of record, 
but we are with them every step of the way to make sure that 
they are up on everything. And it allows us to indirectly help 
many more veterans, and that is our goal.
    Senator Akaka. Joe, do you have any comment on that 
question?
    Mr. Violante. Well, Senator, we have also had a lot of 
success with large law firms approaching us not only in wanting 
to represent veterans before the VA, but also assisting active-
duty military at Walter Reed go through the medical evaluation 
boards and physical evaluation boards. And it is a quick 
learning process for them with the assistance of the 
organizations that are out there to help them, and I think it 
is doing a lot to improve the quality when these attorneys step 
forward and provide this free service to the men and women of 
the Armed Forces and to our veterans. It is very rewarding to 
see that.
    Senator Akaka. Mr. Cohen?
    Mr. Cohen. Yes, Mr. Chairman. NOVA has had the experience 
of training lawyers to represent veterans since 1993. We have 
semiannual seminars in the spring and in the fall, and the 
first day of that seminar is devoted solely to new 
practitioners.
    We have seen our membership grow from a stable number of 70 
over a year ago to 300 at the present time and still growing. 
We get calls every day from people who want to learn how to 
represent veterans. We find that it is not easy for someone to 
make the transition from doing Social Security disability, 
personal injury, workers' comp, to veterans law because it is 
so complex and because it is ever changing. But as noted by my 
colleagues here, we all three do that and have been effective 
in doing that.
    One of the key things is, as you mentioned, mentoring. So 
we have a bulletin board. We have attorneys available to help 
new practitioners with questions that they have. But I would 
mention that ever since the veterans were given the right to 
hire lawyers and that became known to the veterans and they 
started going to lawyers and asking them for help, more lawyers 
have come to us and said, ``Would you please train us? Because 
we understand that there are veterans who want help, and we 
want to know how to best help them.''
    And so we are doing training programs likewise all over the 
country now for various bar associations and various groups to 
teach these lawyers how to represent veterans effectively.
    Senator Akaka. Mr. Cohen, what in your view explains the 
Court's historical reluctance to reverse cases, choosing 
instead to order remands? This has been mentioned. Can you 
explain that or make any comments on the historical reluctance 
to reverse cases and instead choosing remands?
    Mr. Cohen. Yes, I think there has been some concern on the 
part of the Court to see itself in a very strict appellate 
posture as opposed to recognizing that it is an Article I 
specialized Court. And it has been very, very concerned about 
not doing any fact finding and taking that to the extreme of 
not only not doing fact finding, but when the facts are there 
in the record, as long as the VA failed to recognize those 
facts, the Court seems reluctant on its own to say, ``well, it 
is in the record, there is no need to go back.''
    Many times these remands, instead of reversals, are out of 
an abundance of caution to say, ``well, you did not articulate 
why you rejected all the evidence which is clearly in favor of 
the veteran, so we will send it back, you can articulate the 
reason why you did not take all this evidence which is 
favorable and render a favorable decision.''
    What will happen in that instance is very often the VA will 
send it out for another exam, will develop to deny, and then 
say, ``well, we have some evidence here, some evidence there. 
We are not going to apply the benefit of the doubt. We are 
going to say our evidence is more--the new evidence is more 
believable, we deny the claim.'' But, actually, the Court could 
reverse, if it understood specifically the legislation that was 
recently passed where Congress said ``you have the power to 
reverse.'' I think Congress can make that very clear by new 
legislation saying that ``where there is sufficient evidence in 
the record, there is no need to send it back.'' And the Court 
now has enough experience with veterans law to understand what 
is in the record and to actually reverse these decisions.
    Senator Akaka. Would any of you--Mr. Campbell?--make any 
other comments on that?
    Mr. Campbell. I think I would bring up two things. First of 
all, the Court does not remand for the VA to develop negative 
evidence or to deny the veteran the benefit of the doubt. That 
is not the way the system works. But I harken back to when the 
Court was established with the Veterans Judicial Review Act, 
and I think the concern there was that VA had nearly 75 years 
at that point as the expert fact finder in assessing veterans' 
claims, and that in establishing a court of review, Congress 
did not intend to invade that domain. Congress wanted to strike 
a balance, recognizing that VA was the expert in fact finding, 
developing the evidence, and applying its regulations, but that 
in pure questions of law, then the judges would step in and 
exert de novo review. And there are quite a few reversals of 
pure questions of law from the Veterans Court or the Federal 
Circuit when a pure question of law is involved.
    Senator Akaka. Thank you.
    Ms. Cote, please share your views on the relatively limited 
number of precedential decisions decided by panels of the 
Court's judges. Do you believe that prevalence of single-judge, 
non-precedential decisions has hindered the Court's efficiency?
    Ms. Cote. Has hindered the Court's efficiency. I do not 
know if I can answer that. I think it is still part of the 
problem Mr. Cohen talked about, this overabundance of caution. 
I think we see the same thing in the volume of single-judge 
opinions. Certainly as a practitioner, we would like to see 
more precedential opinions and would find that more useful in 
arguing our cases. But I do not want to presume why the Court 
does what it does, but I do think it is the same rationale that 
makes them remand for reasons and bases, things like that. I am 
not sure why they do it, but I do feel it is a bit of a 
hindrance when there is often useful language, useful 
interpretation of cases, and because the Court's rules prohibit 
citing two non-precedential decisions in our pleadings, I find 
that a hindrance certainly.
    Senator Akaka. Thank you.
    Mr. Cohen, I want to thank you for your last response about 
legislative action, and we will certainly take note of what you 
said. And maybe that would improve the timeliness as well as 
the efficiency of the courts. So I thank you very much for 
that.
    Mr. Cohen. Thank you, Mr. Chairman.
    Senator Akaka. Mr. Campbell, you note in your testimony 
that the office filed more than 29,700 pleadings in fiscal year 
2007. How do you forecast your staffing needs for this daunting 
workload? Is your office budget based on claims receipts, the 
number of pleadings you file, or some other factor?
    Mr. Campbell. That is an excellent question, Mr. Chairman. 
We are somewhat in a reactive stance, of course, because we 
have no control over the number of cases that get filed. We 
have some experience over time in understanding the number of 
cases that can be handled well by a particular attorney, and we 
try to project our anticipated caseload in the coming years, 
and then factor in what we regard as the number of cases that 
each attorney should be handling, ideally. And we use that in 
trying to forecast our budget and making our submissions for 
resources.
    Senator Akaka. Well, I want to thank you all for your 
testimony and your responses. In closing, I want to tell you 
that you have been helpful. I hope that we can bring about some 
legislation that would help the cause here. So I really truly 
appreciate your taking the time to give us your views on the 
operation and performance of the Court, and I look forward to 
continuing to hear from you and to work with you also in 
helping veterans across the country.
    So, with that, this hearing is adjourned.
    [Whereupon, at 11:04 a.m., the Committee was adjourned.]





                                  
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