[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]





                     EXAMINING APPELLATE PROCESSES
                      AND THEIR IMPACT ON VETERANS

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON DISABILITY ASSISTANCE
                          AND MEMORIAL AFFAIRS

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 14, 2009

                               __________

                           Serial No. 111-19

                               __________

       Printed for the use of the Committee on Veterans' Affairs





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                     COMMITTEE ON VETERANS' AFFAIRS

                    BOB FILNER, California, Chairman

CORRINE BROWN, Florida               STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas                 CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine            JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South     HENRY E. BROWN, Jr., South 
Dakota                               Carolina
HARRY E. MITCHELL, Arizona           JEFF MILLER, Florida
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
DEBORAH L. HALVORSON, Illinois       BRIAN P. BILBRAY, California
THOMAS S.P. PERRIELLO, Virginia      DOUG LAMBORN, Colorado
HARRY TEAGUE, New Mexico             GUS M. BILIRAKIS, Florida
CIRO D. RODRIGUEZ, Texas             VERN BUCHANAN, Florida
JOE DONNELLY, Indiana                DAVID P. ROE, Tennessee
JERRY McNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
JOHN H. ADLER, New Jersey
ANN KIRKPATRICK, Arizona
GLENN C. NYE, Virginia

                   Malcom A. Shorter, Staff Director

                                 ______

       Subcommittee on Disability Assistance and Memorial Affairs

                    JOHN J. HALL, New York, Chairman

DEBORAH L. HALVORSON, Illinois       DOUG LAMBORN, Colorado, Ranking
JOE DONNELLY, Indiana                JEFF MILLER, Florida
CIRO D. RODRIGUEZ, Texas             BRIAN P. BILBRAY, California
ANN KIRKPATRICK, Arizona

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













                            C O N T E N T S

                               __________

                              May 14, 2009

                                                                   Page
Examining Appellate Processes and Their Impact on Veterans.......     1

                           OPENING STATEMENTS

Chairman John J. Hall............................................     1
    Prepared statement of Chairman Hall..........................    30
Hon. Doug Lamborn, Ranking Republican Member.....................     3
    Prepared statement of Congressman Lamborn....................    31

                               WITNESSES

U.S. Court of Appeals for Veterans Claims, Hon. Bruce E. Kasold, 
  Judge..........................................................     3
    Prepared statement of Judge Kasold...........................    31
U.S. Department of Veterans Affairs:
    Hon. James P. Terry, Chairman, Board of Veterans' Appeals....    18
        Prepared statement of Mr. Terry..........................    55
    Ronald S. Burke, Jr., Director, Appeals Management Center, 
      Veterans Benefits Administration...........................    20
        Prepared statement of Mr. Burke..........................    57

                                 ______

American Federation of Government Employees, AFL-CIO, William 
  Angulo Preston, Acting President, Local 17, and Associate 
  Counsel, Board of 
  Veterans' Appeals, U.S. Department of Veterans Affairs.........     9
    Prepared statement of Mr. Preston............................    36
Disabled American Veterans, Kerry Baker, Assistant National 
  Legislative Director...........................................    11
    Prepared statement of Mr. Baker..............................    38
National Organization of Veterans' Advocates, Inc., Richard Paul 
  Cohen, Executive Director......................................    14
    Prepared statement of Mr. Cohen..............................    52
National Veterans Legal Services Program, Barton F. Stichman, 
  Joint Executive Director.......................................    12
    Prepared statement of Mr. Stichman...........................    45

                   MATERIAL SUBMITTED FOR THE RECORD

Post-Hearing Questions and Responses for the Record:
    Hon. John J. Hall, Chairman, Disability Assistance and 
      Memorial Affairs, Committee on Veterans Affairs, to Ronald 
      S. Burke, Director, Appeals Management Center, Veterans 
      Benefit Administration, U.S. Department of Veterans 
      Affairs, letter dated June 19, 2009, and VA response.......    59

 
                     EXAMINING APPELLATE PROCESSES
                      AND THEIR IMPACT ON VETERANS

                              ----------                              


                         THURSDAY, MAY 14, 2009

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

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
Room 334, Cannon House Office Building, Hon. John J. Hall 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Hall, Halvorson, and Lamborn.

               OPENING STATEMENT OF CHAIRMAN HALL

    Mr. Hall. Good morning, ladies and gentlemen. The Committee 
on Veterans' Affairs, Subcommittee on Disability Assistance and 
Memorial Affairs, oversight hearing on examining the appellate 
processes and their impact on veterans will now come to order.
    Would you please rise for the Pledge of Allegiance? Flags 
are located on both ends of the room.
    [Pledge was taken.]
    Mr. Hall. Thank you. This morning we are here to conduct an 
oversight hearing entitled, ``Examining Appellate Processes and 
Their Impact on Veterans.''
    I thank the witnesses for coming and I look forward to 
working with you on proposals that may require legislative 
changes. Making the administrative and judicial appeals 
processes better and more efficient for our veterans is our 
shared priority and I thank you for joining me in helping to 
find workable solutions.
    The process a veteran goes through when filing an appeal is 
a never ending story that this Subcommittee has heard many 
times over. A new claim is more like a short story. Upon 
submission, it can be developed and rated in about 6 months. 
However, if a veteran disagrees with the U.S. Department of 
Veterans Affairs' (VA's) decision and files an appeal, then it 
becomes an epic tale that can go on for years or even decades.
    First, the veteran can appeal the regional office (RO) 
decision to the Board of Veterans' Appeals known as the BVA. 
This process can take up to 2 years. From there, the veteran 
can appeal the BVA decision to the Court of Appeals for 
Veterans Claims (CAVC), where the average time from filing to 
disposition is 446 days.
    From there an appeal can be made to the U.S. Court of 
Appeals for the Federal Circuit. The Federal Circuit Court 
usually takes up to a year to make a decision, which can then 
be appealed to the U.S. Supreme Court. This cycle can repeat 
itself a few times depending on the options a veteran chooses 
and can take between 5 and 10 years before there is any type of 
finality.
    I think, like me, many of you find this statistic 
astounding and evidence of an area that is in need of closer 
scrutiny by this Congress.
    How can we improve the efficiency and effectiveness of the 
appellate story to the benefit of our veterans, their families 
and survivors, is the question at hand and the reason why I 
convened this hearing today. Right now, I think we can all 
agree that the multitude of appellate processes that involve 
constant redevelopment and remands is at odds with providing 
our veterans the timely and meaningful appellate justice they 
deserve.
    First, I firmly believe that we must overcome the quality 
and accuracy challenges at VA's 57 regional offices, which 
perpetuate the unspoken belief held by many veterans and their 
advocates that given the variances in RO decisions, an appeal 
to the BVA is a necessity. Clearly, better standardized 
training and a hard look at the work credit reward system as 
outlined in my bill from the 110th Congress, the Veterans 
Disability Benefits Claims Modernization Act, H.R. 5892, which 
was incorporated into P.L. 110-389, should help on this front.
    However, I am also concerned that the BVA still employs a 
system of rewards based on the quantity of work rather than its 
quality. Despite additional staff, centralization of appeals, 
and all of the training conducted since this Subcommittee heard 
from both the Appeals Management Center (AMC) and BVA in 2007, 
the backlog has increased by several thousand cases, days to 
process an appeal have only improved slightly, and remands have 
turned into more remands or re-remands. Thus, the appellate 
story is one that goes on and on with often no end in sight. 
Surely, this is not what anyone thinks of as justice for 
America's veterans.
    With a backlog of over 43,000 cases in fiscal year 2008, 
the average length of time for an appeal with the BVA is an 
amazing 563 days. This inefficiency is only exceeded by the 
outcome of these long waits, a 39 percent denial rate. Also, 
although BVA claims a 95 percent accuracy rate, the Court of 
Appeals for Veterans Claims remands at least 70 percent of the 
cases appealed, indicating a much lower quality rate at the BVA 
in reality. It is clear from reading the BVA's annual report to 
Congress that these percentages are inconsistent and may not be 
based on the same quality measures that Congress considers 
indicative of good performance.
    I think, too, that we can fairly conclude that in its 
current state, the AMC is a failed experiment whose poor 
performance and lack of accountability confounds veterans, 
their advocates and Members of Congress alike. It is time we 
take a long hard look at this layer of bureaucracy, which adds 
2 years to the appellate process.
    I am eager to hear from the witnesses on this area of 
concern. Additionally, I look to hearing from Judge Kasold--is 
that----
    Judge Kasold. Kasold.
    Mr. Hall [continuing]. Kasold, thank you, from Judge Kasold 
on the Court of Appeals for Veterans Claims' annual report, the 
70-percent remand rate, and on Judge Greene's short and long-
term plans for the Court as a critical piece in producing 
better appellate outcomes.
    Today's witnesses will speak to the concerns this 
Subcommittee has had with the BVA's and AMC's focus on 
production over quality, the poor development of claims, the 
lack of a technological infrastructure to manage information, 
and the lack of accountability through the entire adjudication 
and appeals process. I know, too, that we will hear about 
concerns we have with looking for ways that the Court of 
Appeals for Veterans Claims can serve as more of a final 
arbiter for veterans' appeals.
    Moving forward, I hope that we can come up with a consensus 
on a plan that will foster a way forward for veterans and 
perhaps mitigate the current cumbersome and lengthy appellate 
process. If this happens, this is one story that could end a 
lot better.
    I now would turn to Ranking Member Lamborn for his opening 
statement.
    [The prepared statement of Chairman Hall appears on p. 30.]

             OPENING STATEMENT OF HON. DOUG LAMBORN

    Mr. Lamborn. Thank you, Mr. Chairman.
    It is good to once again have the opportunity to assess the 
appeals process for veterans' claims. As we all know, there are 
some longstanding issues regarding accuracy and timeliness of 
decisions throughout the system beginning at VA Regional Office 
level and ascending into the appeals process. We must ensure 
that ratings boards strive for thoroughness and accuracy, along 
with efficiency in their work, and this will have positive 
implications for the entire Benefits Adjudication System.
    I am grateful for what we have been able to accomplish, not 
only on this Committee, but in a concerted effort with 
administration officials and our Senate colleagues to put steps 
in place to improving the system as a whole and the eventual 
elimination of the backlog of claims.
    I welcome our witnesses, especially Judge Kasold and 
Chairman Terry, and thank you all for your participation and 
contributions to today's discussion. I look forward to your 
testimony and I yield back.
    [The prepared statement of Congressman Lamborn appears on 
p. 31.]
    Mr. Hall. Thank you, Congressman Lamborn. I would like to 
welcome all witnesses testifying today.
    I remind you that your complete written statements have 
been made a part of the hearing record. Please limit your 
remarks so we may have sufficient time to follow up with 
questions.
    Judge Kasold, we are expecting votes, we are told, at 
quarter-after to half-past, so hopefully we will get through 
your statement and maybe even into questions before that 
happens.
    Welcome, sir. You are now recognized for 5 minutes.
    Judge Kasold. Thank you. Do I press this button?
    Mr. Hall. Please.

STATEMENT OF HON. BRUCE E. KASOLD, JUDGE, U.S. COURT OF APPEALS 
                      FOR VETERANS CLAIMS

    Judge Kasold. Thank you, Mr. Chairman, Ranking Member 
Lamborn, Mrs. Halvorson, for the invitation to this Committee.
    I will make this short. My statement is in the record, and 
I will defer to it and open to questions. I would, however, be 
remiss if I didn't note that the Court is in its 20th year of 
creation by statute and, this coming fall, the quorum being 
first established.
    I also would just like to note that Judge Schoelen is with 
me in the audience, as well as our Clerk of the Court, Norm 
Herring, and our Board Counsel, Alice Kerns.
    Mr. Chairman, I'll answer any questions you have.
    [The prepared statement of Judge Kasold appears on p. 31.]
    Mr. Hall. Shortest statement we've ever had. I neglected 
to----
    Judge Kasold. I will defer to my statement.
    Mr. Hall. Well, your statement is in the record, and I 
neglected to introduce you fully. We just heard from our first 
witness, Judge Bruce E. Kasold from the U.S. Court of Appeals 
for Veterans Claims, and I will ask you a couple of questions, 
if I may.
    The Disabled American Veterans (DAV) contends that the 
Court is not applying the benefit-of-the-doubt rule as Congress 
intended, because it upholds denials based on weaker evidence 
if it finds plausibility, despite the unfavorable evidence 
failing to equal the value of the favorable evidence. To 
rectify this situation, DAV suggests that Congress clarify the 
definition of material fact set in the law.
    First, can you respond to the benefit of the doubt issue, 
and what do you think would be gained by amending that 
definition?
    Judge Kasold. To answer the second one first, it would 
depend on how it was amended, I suppose. You could give the 
Court de novo review. I am not sure I would recommend that 
because you have the agency that is responsible for the 
processing of these claims, the development of the facts. The 
Court is not a developer of facts, if you will. We remand to 
the Board to develop facts that might remand to the Regional 
Office to develop facts. And the Court sits as an appellate 
review of the decision rendered by the Secretary, that final 
decision being the one rendered by the Board.
    As far as the benefit of the doubt, we do review the 
Board's application of the benefit of the doubt, and we believe 
we do it consistent with the statutory mandate. And that has 
been reviewed by the Federal Circuit, and the consistency--
actually, their decision rendered and said that if the 
preponderance of the evidence weighs against the claim, that 
means it wasn't 50 percent; it was against the claim. And when 
the Board renders that finding, as long as that is not clearly 
erroneous, we uphold it.
    Mr. Hall. In your testimony you note several steps that the 
Court took over the years to improve operating procedures. How 
were those plans developed and why do you think you have seen 
better outcomes?
    Judge Kasold. I am not sure the outcome, as far as a 
result, is better. I believe the Court from day one has 
rendered the proper decisions in an overwhelming majority of 
the cases. Timing, I think, is improving, and I think we will 
start seeing the benefits of that in the next annual report.
    Our Chief Judge has implemented two major new initiatives, 
if you will. One is electronic filing, and the Secretary has 
been cooperative in that, in turning their records into 
electronic filing so that the claims file is sent 
electronically to the appellants. That can save time.
    We have also implemented a proceeding of a narrower record 
being filed directly with the Court on the initial briefs when 
counsel are involved, where counsel are to focus on the issues 
that they see, present them to the Court and submit the 
documents supporting that, and that may save time.
    The thing that has definitely saved time is our mediation 
process which was implemented about a year ago. And of the 
cases being filed with the Court, about 50 percent are being 
resolved at mediation, which is generally a remand back. The 
Secretary agrees that a remand is warranted and it is sent back 
to the Board.
    That time processing generally happens within the first 60 
days of the appeal being reviewed under mediation, et cetera. 
Some can go longer, but the medium is around the 60-day period 
I am told. And I think that will reflect favorably. We are 
hoping that will reflect favorably at the end.
    Mr. Hall. That is encouraging. Do you think it will be 
beneficial, in your opinion, to eliminate the intermediate 
appellate review from the judicial process, the Federal Circuit 
review?
    Judge Kasold. As I said in my statement, I certainly think 
it is time to study it. The Court has been here for 20 years. 
It has 20 years of case law. It has been reviewed by the 
Federal Circuit for those 20 years.
    We have two examples somewhat similar. The District Court 
of Appeals used to have an appeal to another appellate court, 
and that was changed and they have direct cert review by the 
Supreme Court. The Court of Appeals for the Armed Forces did 
not have a direct review by the Supreme Court for a long time 
and their actions were reviewed and a great number through 
habeas corpus. And then they were given direct cert review 
after a number of years.
    I think the time has come. I noted at a hearing in the 
Senate about 60 days ago that I reviewed figures from the 
Federal Circuit where over 100 cases have been on their books 
for over 1,000 days. That reflects back on our timing. In other 
words, our timing, when you look at the 400 days, includes the 
time at the Federal Circuit, and any that might go to the 
Supreme Court, and that impacts the overall timing that we 
have.
    If you actually look at the timing in our Court, we have 
two--three areas really now. One is the mediation process. As I 
indicated, that's being done in about a 60-day mean-time 
period.
    You then have the briefing process, and we have gone from 
the administrative to the judicial arena, two parties opposing 
each other, equal before the Court. And so you have the normal 
process of development of the record to be reviewed by the 
parties, a 60-day briefing process for the Secretary, which is 
a standard in the appellate process, and 60 days for the 
response. I believe it is 14 days for a reply. And then the new 
modified record of proceedings there is an additional 14 days.
    As you can see, you have, what is that, about 200 days just 
in the process, and that is without a request for extension. I 
think I also noted that we have a number of requests for 
extension in this particular process, and we are hoping that 
that is cut down by the electronic filing.
    Mr. Hall. My time has expired, but I want to ask quickly--
you mentioned electronic filing of claims. Where does that 
originate? At what point, to your knowledge, does the claim get 
turned from paper into electronic filing?
    Judge Kasold. I don't know the answer to that. For our 
purposes, as I understand it right now, the implementation is 
when an appeal is filed. And I don't know if that is a numbers 
issue because you have 800,000 claims, 40,000 at the Board, and 
then about 5,000 filed at the Court. But certainly the General 
Counsel representing the Secretary in our Court is working with 
the Court to do an electronic filing.
    Mr. Hall. I am happy to hear about it. It just seems like 
it is happening at the end of the process, and some of us have 
been working really hard to try to get electronic claims and 
records from the beginning of the process.
    Judge Kasold. I am sure the Secretary will be able to 
answer that, sir.
    Mr. Hall. Well, in between his other work, I will hopefully 
get a chance to ask him.
    Mr. Lamborn, you are now recognized for 5 minutes.
    Mr. Lamborn. Thank you, Mr. Chairman.
    Judge, why do appeals require approximately 4 months of 
processing by the Court's central legal staff after the final 
pleading is filed before the case is assigned to a judge, 
especially in light of the fact that each judge is authorized 
four law clerks?
    Judge Kasold. That is a good question. I asked it just 
before coming over here. I have not been the chief, so I have 
not studied the numbers, except before the Senate hearing and 
this one, and I had not identified that one before this 
hearing.
    I spoke with the head of our central legal staff just 
before coming over, and it is, I was told, about 90 days, but 
it is comparable, and I said, if you had more people, could we 
do that faster, so I think it is a resources issue.
    One of the things that has happened recently, and again I 
don't have the facts before me, but recently our central legal 
staff is also doing the mediation process. How that is 
impacting them and whether or not we need additional staffing, 
I do intend to talk to the Chief Judge about, but I do not have 
an answer to your question.
    Mr. Lamborn. Okay. Now, in general terms, I know you have 
touched on this in your written testimony and in your previous 
questions--if you can just recap, what actions is the Court 
taking to advance resolution of this, especially the long 
pending cases?
    Judge Kasold. My review of the cases is that generally 
speaking in about 25 percent of the cases, you have this 60-day 
rough time period where there's a remand agreed to by the 
Secretary. You then have the 200-day period without request for 
extension, so that actually is longer. But the 200-day period 
for the briefing, and then as you pointed out, an additional 90 
days for the central legal staff memo.
    Within chambers, because of the four clerks, we are getting 
cases out within 60 days generally. Some fall into the 90-day 
period. And as you know, we can do single-judge decisions.
    We do have cases that go to panel, though. And like any 
appellate court, the panel decisions take longer to do. Same 
with an en banc decision. When a case is at panel or en banc, 
it generally includes a novel issue and that novel issue might 
result in another single-judge case waiting to be decided, 
stayed pending the result of that panel decision.
    I think, the cases that are in that 90-day-or-above period 
in chambers are in that category.
    So I think that the staffing that we have right now for the 
chambers is getting very positive results with regard to a 
judicial decision on a case that was complex enough to go to 
the judges, not resolved by the Secretary.
    Mr. Lamborn. Okay. Thank you for your answers and for your 
testimony as well.
    Judge Kasold. Thank you.
    Mr. Hall. Thank you, Mr. Lamborn.
    Ms. Halvorson, you are now recognized for 5 minutes.
    Mrs. Halvorson. Thank you, Mr. Chair.
    And thank you, Judge Kasold, for being here.
    First, let me state that one of the major calls that come 
into my office are about this appeals process. And, I believe 
that not only has everybody here acknowledged that it is 
probably the most confusing adversarial, legalistic and 
stressful process there is, I am wondering that if it wasn't so 
confusing and stressful, if we would have fewer appeals. Maybe 
this is going to be for one of the other panels coming up after 
you, but my problem, and I've talked to other people, is why do 
we even have so many appeals to begin with because if we are 
taking care of these things the first time, we wouldn't even 
have to appeal them. So, later on I am going to get to that 
point.
    However, for now I just want to know, Judge Kasold, in your 
testimony that you sent us you said that, ``Efforts should 
indeed be taken to reduce the number of errors made, 
particularly the repetitive errors.''
    Could you elaborate a little more? What kind of repetitive 
errors are you seeing and what, in your opinion, can be done 
about that?
    Judge Kasold. Well, anecdotally, because we don't take 
statistics as to the actual reason a case is remanded, but I 
have talked to the other judges and it is very similar in my 
chambers. The reasons or basis might be, is inadequate, is a 
significant number of reasons why we remand.
    Congress has imposed on the Board a requirement to 
adequately explain their decisions so that the veteran 
understands it and so that it can be reviewed judicially. So 
when we get a case and we have an issue and it is not clear to 
us why they resulted in that, we remand it for further 
discussion.
    One of the positives of that is this Court has also held 
that on any remand like that, further fact development can be 
undertaken. In other words, it is not just, ``Board rewrite 
your decision,'' which can happen in the normal appellate 
process. It is, ``Board, the appellant can ask for additional 
records, submit additional records, ask for a medical exam,'' 
and then you have to analyze all those issues. So it opens up 
the entire case once again.
    Another one we see is whether or not a medical exam is 
needed and there are issues that are involved in that. And 
sometimes we find that the Board is wrong in its decision or 
has not discussed it and should have because it was reasonably 
raised.
    Another one might be the adequacy of the medical 
examination. A number of them come through and they are 
conclusory, if you will. And when you look at the totality of 
the evidence, given the Board's discussion of it, you wonder 
why they relied so heavily on that conclusory opinion. I mean, 
if the doctor gave more analysis and you could follow it and 
understand it, then that would be plausible and acceptable.
    So those are some of the common reasons why we remand. And 
just to answer your question going back, I don't know 
specifically, but usually it is a manpower issue and a training 
issue.
    Mrs. Halvorson. Which was the last time this came up and I 
had a lot of conflicting answers when I talked about that. 
However, I do want to get back to the fact that when we talked 
about these repetitive errors, it didn't sound to me like you 
had any one-size-fits-all, like where are the errors and how 
can we fix them. Is it the person filling out the forms? Is it 
the doctor and the training? Do we need a list when somebody 
comes to our office? Do we need to say, ``And when you appeal 
your claim, you need to make sure this is happening?''
    To just keep saying we have all these errors and we have 
all these problems is not good enough. Maybe I am a new 
Congressperson and I come to this with a different perspective, 
but I really need to know how we can fix this. If we keep 
having these same errors and they are repetitive, we have to 
get to the bottom of it and where do we straighten it out?
    Judge Kasold. Well, I think from the review that we do at 
the Court, which is of the Board decision, it would come back 
to, and again I am guessing, but the staffing and the training.
    When you get done with the decision, it either flows, makes 
sense and you don't have any significant questions left, or you 
have them. When we review it, if we have them, we would remand 
it. Now, that could be done down below, I assume, reading it 
and whether there's a review done. I don't know the processes 
down below, so I don't want to misstate anything in that 
regard.
    With regard to a medical exam, it would be the same thing. 
When you look at it, if it was your son or daughter, would you 
accept that?
    Mrs. Halvorson. Okay. So since my time is running out, I 
guess let me get to the point. All of you judges, do you do 
this objectively or subjectively? So if I were to ask you one 
question and the next judge another question, would I get the 
same answer, the same appeal, the same remand, or do you all 
see things differently?
    Judge Kasold. I think, generally, we see things the same 
and we do send around all the single-judge decisions for review 
by other judges, and a second judge can call it to panel.
    Mrs. Halvorson. So then the other people that give you the 
things, we will need to get them then and see if they see 
things the same. I guess what I am getting at is, we need to 
find which level the errors are coming from.
    So, you know, as long as you are seeing these things 
objectively and not subjectively, I feel----
    Judge Kasold. I think, objectively, all the judges would 
agree that we are seeing those types of errors and they are the 
basis for most of the remands, yes.
    Mrs. Halvorson. Okay. Thank you.
    Mr. Hall. Thank you, Ms. Halvorson.
    I just had one more question for you, Judge, before we let 
you go. And that is, do you think the mediation process that is 
used by the Court could be also implemented at the BVA level as 
well?
    Judge Kasold. I do, but I caveat that the Secretary is 
statutorily required to assist the veteran to begin with, and 
they do have a hearing. I don't know their specific processes 
but, yes, I do believe that type of review would be helpful 
down below also, if it is not being done.
    Mr. Hall. Thank you very much. I appreciate your coming 
before us and testifying and we will be in touch again as we 
move forward. So you are now free to go.
    Judge Kasold. Thank you very much.
    Mr. Hall. I hope that means you have the day off, but 
probably not. You are excused and thank you for your testimony.
    Judge Kasold. No, I have a few cases. Thank you, Mr. 
Chairman, Members of the Subcommittee.
    Mr. Hall. Our second panel, we will try to get started 
here. I am not sure how far we will get before they ring the 
bell. William Angulo Preston, Acting President of the American 
Federation of Government Employees (AFGE), Local 17; Kerry 
Baker, Assistant National Legislative Director of the Disabled 
American Veterans; Barton F. Stichman, Joint Executive 
Director, National Veterans Legal Services Program (NVLSP); and 
Richard Paul Cohen, Executive Director of the National 
Organization of Veterans' Advocates (NOVA).
    Welcome, all of you, and as usual, your testimony is 
entered in the record, so you can abridge it or change it as 
you wish. Mr. Preston, welcome. You are recognized for 5 
minutes.

    STATEMENTS OF WILLIAM ANGULO PRESTON, ACTING PRESIDENT, 
   AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 17, ON 
                 BEHALF OF AMERICAN FEDERATION 
OF GOVERNMENT EMPLOYEES, AFL-CIO, AND ASSOCIATE COUNSEL, BOARD 
  OF VETERANS' APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS; 
KERRY BAKER, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED 
    AMERICAN VETERANS; BARTON F. STICHMAN, JOINT EXECUTIVE 
DIRECTOR, NATIONAL VETERANS LEGAL SERVICES PROGRAM; AND RICHARD 
   PAUL COHEN, EXECUTIVE DIRECTOR, NATIONAL ORGANIZATION OF 
                   VETERANS' ADVOCATES, INC.

              STATEMENT OF WILLIAM ANGULO PRESTON

    Mr. Preston. Mr. Chairman and Members of the Subcommittee, 
thank you for the opportunity to present our views on appellate 
processes and their impact on veterans, on behalf of the 
American Federation of Government Employees, AFL-CIO.
    AFGE's testimony addresses the following: The need to 
expand BVAs' legal staff and administrative staff; 
recommendations for process improvement including 
specialization, establishing another decision team and using 
employees of the Board to transform BVA's adjudication into a 
paperless system.
    First, BVA needs additional attorneys to handle its 
caseload. AFGE urges Congress to provide funding for the Board 
to hire at least 50 additional attorneys initially, with 
additional attorneys being hired thereafter, until the current 
caseload decreases.
    Second, the Board currently faces a significant bottleneck 
in the administrative processing of claims caused by a shortage 
of staff to process claims. The ratio of support staff to 
attorneys has worsened over the years as the Board increased 
the number of attorneys without a comparable increase in 
support staff. We suggest a ratio of one administrative support 
staff member for every two attorneys and also recommend joint 
labor-management efforts to identify all the bottlenecks 
contributing to BVA's growing caseload.
    Third, specialization by both BVA attorneys and the 
Veterans Law Judges would increase their familiarity with laws 
governing a specific set of benefits, and increase the quality 
of the decisions as well as their quantity. The quantity would 
increase due to greater familiarity with the pertinent case law 
and a consequent decrease in the need for research.
    AFGE recommends the Subcommittee require the Board to 
identify approximately 20 areas of specialization and to assign 
no more than 3 such areas to each Veterans Law Judge. Each 
judge and his or her attorneys would retain those areas of 
specialization for 3 years. Other cases not involving an issue 
of specialization could be assigned to any judge.
    Fourth, the Board should be reorganized to add an 
additional decision team to the four presently in place. It 
would handle all issues appealed from decisions by the other 
four teams by reconsidering them when the appellant requests 
reconsideration and issuing a decision that is ready for 
appellate review. This would increase both the quality of the 
decisions reviewed by the Court and the quality of decisions 
received by veterans. It should also speed up the issuance of 
decisions generally.
    The four current decision teams should be required, by 
statute, to write appellant-friendly decisions, i.e., decisions 
meant solely for the veteran or other appellant and his or her 
representative, and not the Court. These decisions would be 
shorter without the legal explication only required to pass 
Court muster and would be more accessible to veterans and other 
appellants.
    Fifth, AFGE strongly supports the Department's goal of 
conversion of the Board to a fully paperless system. AFGE 
recommends asking BVA employees to help transform the Boards' 
adjudication process into a paperless system that is designed 
to allow easy access to these files by employees conducting 
search queries.
    The system should be user-friendly for VA employees, the 
veterans we serve, and veteran service organizations (VSOs). We 
believe that the experience and insights of BVA employees who 
work with claims files each day must be incorporated into any 
process of VA going paperless.
    Rather than contract out the scanning and other related 
tasks to a private contractor, we urge Congress to create 
employment opportunities for veterans within the Department by 
establishing a new administrative unit within VA. In-house 
scanning would enable the conversion to take place at a 
reasonable cost. In addition, VA's in-house knowledge base 
would grow and other VA staff would have access to technicians 
who are directly responsive to VA and to the veterans.
    This concludes the oral presentation of my statement. Thank 
you again for the opportunity to testify to our views.
    [The prepared statement of Mr. Preston appears on p. 36.]
    Mr. Hall. Thank you, Mr. Preston.
    Mr. Baker, welcome, and you are now recognized for 5 
minutes.

                    STATEMENT OF KERRY BAKER

    Mr. Baker. Thank you, Mr. Chairman and Members of the 
Subcommittee. I am glad to be here today on behalf of the DAV.
    As you know, the appeals process is extremely complex and 
lengthy. The VA estimates that it will decide over 940,000 
claims in 2009, which will likely generate as much as 132,000 
appeals. This represents at least a 30-percent increase in 
appeals. Such an increase in appellate workload severely 
affects VA's ability to devote resources to initial claims 
processing.
    Our recommendations are intended to simplify the process 
while preserving resources and reducing expenditures. Some of 
the recommendations contained herein may appear novel or 
controversial at first. They may even draw criticism. However, 
such responses would be misdirected. These recommendations are 
carefully aimed at making efficient a rather inefficient 
process without sacrificing a single earned benefit. They 
include removing administrative burdens in the appeals process 
by, one, incorporating the appeal election letter into the 
Notice of Appellate Rights the VA provides with the initial 
rating decisions; and, two, eliminating, to the extent 
feasible, the requirement to issue Supplemental Statements of 
the Cases or SSOCs.
    We also propose larger recommendations, such as reducing 
the period in which an appeal can be initiated from 1 year to 6 
months. We also recommend disbanding the Appeals Management 
Center.
    By including the appeal election letter along with a copy 
of the rating decision, which must already contain appellate 
rights, VA will no longer have to generate or mail 
approximately 100,000 letters annually.
    Additionally, by no longer issuing SSOCs, in most cases the 
VA will reduce an extra 50,000 mailings at least. Some SSOCs 
are substantially complex and time consuming. These two actions 
alone could save VA well over 100,000 annual work hours. That 
amount of reduced work is equivalent to 625 VA employees 
working 4 full weeks.
    The DAV also believes the time has come to reduce the 1-
year appellate period currently allowed for filing a notice of 
disagreement (NOD) following the issuance of a rating decision 
from 1 year to 6 months.
    However, we also recommend allowing that period to be 
extended for six additional months simply upon request and 
equitably tolled, based on mental or physical impairment that 
prevents an otherwise timely NOD.
    Both of these rights are not currently provided in law. We 
ask that you realize that this is only one part of the larger 
package aimed at reforming and streamlining the administration 
of claims and appeals.
    Finally, the DAV believes that the AMC should be dissolved. 
Regional offices should be held accountable for their own 
mistakes. In fiscal year 2007, over 7,000 cases or nearly 20 
percent of appeals reaching the Board cleared the local rating 
board and local appeals board with errors that are elementary 
in nature, errors that were either not detected and should have 
been or were ignored. Such basic errors would not occur if RO 
personnel were held responsible for their own work.
    Further, the AMC is succeeding in resolving less than 2.8 
percent of VA's appellate workload. The AMC completed nearly 
12,000 appeals in 2008, far less than the number received from 
the Board, out of which nearly 10,000 were returned to the 
Board, 89 were withdrawn and only 1,789 were granted; 2,500 
appeals were returned to the AMC at least a second time because 
of errors in carrying out the Board's explicit instructions. 
That is a 25 percent error rate, an error rate that would never 
be allowed to continue in a Regional Office.
    In closing, the VA will never be able to maximize its 
recent increases in staffing without making its processes more 
efficient. If such changes are made, the VA will see vast 
improvement in its entire claims process that are essential to 
achieving the broader goals of prompt and accurate decisions on 
claims. Likewise, only then will VA be able to incorporate 
training, quality assurance and accountability programs 
demanded by the veterans' community.
    It has been a pleasure to appear before this honorable 
Committee today, but before I close, I would like to say that 
at a Senate hearing in February on the same topic, the DAV and 
my fellow associates here today, were asked to draft a new VA 
claims process from scratch. We have completed that proposal 
simply titled ``The 21st Century Claims Process.''
    Chairman Hall, through your Committee's staffs, yourself, 
Chairman Filner and Ranking Member Buyer, have been provided 
copies of our proposal. It is a comprehensive plan that I ask 
you to review as fast as possible, and the DAV would honor a 
chance to discuss the proposal with you one on one. Thank you.
    [The prepared statement of Mr. Baker appears on p. 38.]
    Mr. Hall. Thank you, Mr. Baker.
    Mr. Stichman, we are going to hear from you and that will 
leave Mr. Lamborn and me a minute to get across the street to 
vote. So you are now recognized for 5 minutes.

                STATEMENT OF BARTON F. STICHMAN

    Mr. Stichman. Thank you, Mr. Chairman and the rest of the 
Subcommittee.
    The National Veterans Legal Services Program appreciates 
this opportunity to discuss with you the long-time failure of 
the VA appellate system to our Nation's veterans to decide 
cases fairly and within a reasonable period of time.
    There are four major reasons we believe for these failures. 

One is currently there is a wait list that has expanded over 
the years.
    Right now it is 563 days from the time the veteran files a 
substantive appeal form, a Form 9, at the Regional Office 
saying I am appealing to the Board. It takes 563 days on 
average for that case to be transferred to the Board for a 
decision.
    Of course, the Board can't decide the case until the claims 
file arrives at the Board, 563 days. I don't know all the 
reasons for that delay, but I, and DAV, have pointed together 
to one reason, and that is veterans waiting around for 1 year 7 
months, what they often do is submit additional evidence, but 
they think that evidence is going to the Board. Why? Because 
they have appealed to the Board.
    But the VA policy is, when that happens, new evidence is 
submitted, and the file hasn't yet been transferred to the 
Board, then they send it to an adjudicator to review the new 
evidence, the entire VA claims file and prepare a Supplemental 
Statement of the case, an entirely new decision.
    Then, if more evidence is presented, the Regional Office 
prepares another supplemental segment of the case, and both DAV 
and NVLSP call for a fix to that by changing the rules of the 
game so that veterans are told if you submit new evidence after 
you file this form, it is going to go to the Board for a 
decision. Unless you tell us that you want the Regional Office 
to re-decide the case, it should go to the Board.
    There must be other reasons for this long delay, but it is 
unconscionable that 1 year and 7 months is wasted before the 
case even arrives at the Board.
    Second problem, major problem, is the hamster wheel of 
justice that has existed for years between the Regional 
Offices, the Board of Veterans' Appeals and the next level of 
the court. Cases go back up and down for additional decisions 
because of errors being made at the various levels.
    One of the reasons for the hamster wheel is the poor 
decisionmaking made by the Board of Veterans' Appeals. This is 
a copy of the annual reports issued by the Court. The 
statistics on this annual report, which is on the Court's Web 
site, document that of all the Board decisions that have been 
reviewed by the Court on the merits, they have found over 76 
percent of those decisions need to be sent back for a new 
decision. Almost all of those are due to error by the Board.
    That is a report card that is an F, and it has been an F 
for 14 straight years. Nothing changes at the Board. They make 
the same errors over and over again. You can read it in the 
Court's decisions. You can see it in the agreements of the VA 
and the opposing counsel, the veteran's lawyer, pointing out 
the errors, sending them back over and over again.
    How can that change? Our suggestion is to change the way 
judges are selected using the administrative law judge concept 
that we use at other Federal agencies for selection of 
individuals on merit.
    Right now, Board Members are selected within the system. 
They have a particular judicial philosophy that keeps getting 
batted down by the Veterans Court and nothing changes. We need 
a breath of fresh air in the composition of the judges at the 
Board of Veterans' Appeals.
    Another problem that creates the hamster wheel is one that 
DAV has pointed out in their testimony, as well as us, and that 
is the Court's undue deference to the Board in deciding whether 
to overturn the decision. The Court almost always sends the 
case back if they disagree with how the agency has evaluated 
the evidence, rather than simply reversing the decision and 
sending it back with an order to grant benefits.
    Mr. Hall. Excuse me, sir. Your 5 minutes is up and we just 
have a minute to make this vote.
    Mr. Stichman. Thank you.
    [The prepared statement of Mr. Stichman appears on p. 45.]
    Mr. Hall. Hopefully, in response to questions we'll be able 
to hear the rest of your story and, Mr. Cohen, of course, you 
will testify after we resume with this recess long enough to 
vote and come back. Thank you for your patience.
    [Recess.]
    Mr. Hall. Okay. Thank you for your patience. We will resume 
with the hearing on Examining the Appellate Processes and Their 
Impact on Veterans. Mr. Cohen, thank you for your patience. You 
are now recognized for 5 minutes.

                STATEMENT OF RICHARD PAUL COHEN

    Mr. Cohen. Thank you, Mr. Chairman. I would like to thank 
the Subcommittee for allowing the National Organization of 
Veterans' Advocates to present its views here. NOVA is a 
membership organization of more than 300 lawyers and accredited 
representatives who represent veterans.
    There were some points that were raised in earlier 
testimony that I would like to deal with before I get to the 
points I mean to raise. The first one is that the court pre-
briefing procedure has been referred to as mediation and that 
would be incorrect. It is not mediation. It is really a 
briefing conference, and the goal of it is not to resolve the 
appeal, but merely to see if there is a reason why it should be 
remanded. So, frequently, cases will go back on a very narrow 
remand which does not deal with the important issues that were 
raised on appeal.
    The second point was, there was a question of whether the 
Federal Circuit should be maintained and is necessary. I will 
call your attention to part A-4 of NOVA's testimony at page 5. 
The Federal Circuit works to develop and enforce the law. There 
are three cases cited in NOVA's testimony which show how the 
Federal Circuit works to develop the law and also to enforce 
the law. And the most recent case was the Moore case in 
February 2009 where the Federal Circuit clarified the duty to 
assist, which the Veterans Court decided incorrectly.
    I would like to present the novel idea that nothing is 
going to change in the VA claims adjudication system except 
that it will 
get worse. The delays, the backlog, the inaccuracy will not 
change until there is a change in VA culture and in the 
philosophy of the VA.
    At present, the VA maintains the position that the primary 
concern is preventing liars, frauds and cheats from getting 
benefits. The concern of the VA, rather, should be to ensure 
that not one meritorious claim is denied and not one combat 
veteran is improperly turned away.
    With the new viewpoint, the VA would focus on the 
presumption, the idea, that unless proven to the contrary, all 
claims are meritorious, sort of like in the criminal justice 
system. Our country is willing to give a presumption of 
innocence to anyone who is accused of a crime, which has the 
effect that they will not be convicted unless there is evidence 
of their guilt beyond a reasonable doubt, even though we 
understand that a few guilty people will benefit from that 
presumption. The fact that VA is not willing to provide such a 
presumption for our veterans is appalling. The VA can use 
presumptions to grant more benefits and to move claims through 
the system.
    People will say there is no money for it. In fact, the VA 
should be part of the military budget. There are two costs of 
waging a war. One is the direct up-front costs of waging a war, 
and the other one is fixing what is broken. When veterans are 
injured or disabled, they need to get the medical care and 
benefits they are entitled to without regard to the money it 
costs. That can happen if there is only one budget, which is 
split between the Department of Defense and the VA.
    It is vital to national security that our veterans should 
not feel that the government is turning their back on them.
    NOVA's written testimony contains 11 suggestions to make 
the system better. I would like to talk about a few things, of 
our suggestions. The first applies to the Court. The Veterans 
Court should get class action status. That way a problem that 
affects a vast majority of veterans can be fixed all at once. 
In addition, the Court should deal with all issues, which are 
reasonably raised and not send the appeal back on a narrow 
basis to go back on the hamster wheel of VA adjudication.
    Presumptions can be expanded. I mentioned before that the 
use of presumptions will help the VA move the backlog. One area 
would be in 1154(b). There is a proposal, H.R. 952, to expand 
that presumption, and that's a good idea. But it should also be 
expanded to include areas where we know Agent Orange was used, 
like Cambodia, Thailand and Laos.
    The other big presumption is 5107(b) the benefit of the 
doubt. Instead of having the benefit of the doubt, which causes 
veterans to lose their case based on a preponderance of the 
evidence, it should require clear and convincing evidence for a 
veteran to lose his case. This is analogous to the standard 
used in worker's comp for many years, a liberality rule. 
Following this rule, if the claimant puts in evidence and there 
is evidence to the contrary, the claimant's evidence wins 
unless the evidence on the other side is so clear and 
convincing to the contrary. That is the only way, by use of new 
presumptions and a new mindset will the system be fixed. Thank 
you.
    [The prepared statement of Mr. Cohen appears on p. 52.]

    Mrs. Halvorson [Presiding]. I appreciate all of you being 
here. We are a little pressed for time. It looks like I have to 
go back and make another vote. However, I have a couple of 
questions and I think enough time for each one of you to have 
one.
    Now, I know that Mr. Preston, I saw in your testimony, the 
AFGE suggests that the BVA be divided into 20 areas of 
specialization. Can you elaborate a little bit on this 
proposal, and in the same vein do you think that this approach 
would hold true for the Regional Offices as a way of maybe 
improving the initial rating decision process?
    Mr. Preston. Yes I can, Congresswoman. I am here to address 
issues pertaining specifically to BVA. In my experience as an 
attorney at BVA, I have been dealing, I have dealt with a lot 
of complex cases. It takes a fair amount of time for attorneys 
to get up to speed dealing with the complexity of the cases 
that they are dealing with.
    And one idea that a number of activists and other people we 
represent put forward after much discussion was that we get 
back to a system such as existed in the past where there were 
distinct specializations. Now, I am not here to enumerate what 
exactly those 20 areas would be but, I mean, we know from just 
a quick survey of Code of Federal Regulations in our 
experience, we have got a lot of distinct complex issues--
traumatic brain injury, reproductive system disorders, gunshot 
wounds, mental conditions, neurological, skin disorders, 
digestive system, cardiovascular, hearing and visual 
impairments and then a whole range of musculoskeletal system 
problems affecting everything from the shoulder and elbows down 
to the ankles, including the knees, hand, foot, et cetera, and 
then cervical spine and thorocolumbar spine problems.
    And it is difficult enough for attorneys to gain the 
expertise to do justice to the claims, but it would be easier, 
and I think more effective, it would lead to greater 
productivity and concentrate skills and get people up to speed, 
focus on these areas of specialization, have them work at them 
for a period of time and then rotate them out of those areas so 
that they could acquire other specializations.
    Mrs. Halvorson. Thank you. Thank you.
    Mr. Stichman, I have a question. The BVA holds quarterly 
forums with the VSOs and attorneys in order to have an exchange 
of ideas. How receptive is the BVA at the meetings when 
suggestions are made by the advocates to improve the system? Do 
you have any examples of any of your suggestions that have 
maybe been implemented by the BVA?
    Mr. Stichman. Unfortunately, I haven't attended those 
sessions personally, so I would have to talk to other people to 
find out the answer to that question, and I can do that if you 
wish.
    Mrs. Halvorson. Sure, that would be great.
    Mr. Cohen, in your testimony you noted that the decision 
review officer (DRO) at an RO can review and rate an appeal. Do 
you think that they are the most appropriate line of authority 
for providing this level of review or should the claim be 
automatically sent to the BVA?
    Mr. Cohen. I think that should be a matter of choice of the 
veteran and the veteran's representative. There are certain 
situations where, for strategy purposes, the veteran would like 
the case to just go up to the BVA and then go to the Court, 
understanding that it is probably not going to be granted 
because neither the regional office, nor the BVA is going to 
apply the correct law and they just want to get a 
determination.
    There are other situations where the veteran and the 
representative might think that the decision review officer 
review or informal session would cause the regional office to 
understand the nature of the evidence and grant the claim. So 
they should have that option.
    Mrs. Halvorson. Okay. Okay. One last question and then we 
will excuse the panel.
    Mr. Baker, is it fair to the veterans that when they submit 
what they believe, and the DAV service officer believes, is 
evidence in support of the claim, that the VA then decides what 
is a material fact, assigns an adjudicative value to those 
facts and then judges those same facts. Is there a better way 
to counter the VA or counter VA from acting as a prosecutor and 
a judge?
    Mr. Baker. If I understand your question regarding material 
fact, I believe there is. This is, you mentioned the regional 
office, but I think this has more to do with the Court and the 
Board.
    In my written testimony I tried to go in depth as to why 
the benefit of the doubt, when the Board takes two equal pieces 
of evidence and weighs it and makes an opinion or a judgment 
call as to which one is more probative, which one was not.
    That is not a finding of material fact. It is an opinion. 
There are many types of facts, and if words are going to have 
meaning in the law, we have to apply their legal meaning, and a 
material fact is not an opinion.
    I am not saying that material facts should not be viewed by 
the Court under the clearly erroneous standard. They should be, 
all right? The Board has asked that that remain in place. I 
agree with that, but an opinion should not be a material fact.
    As long as it is, the statutory right to the benefit of the 
doubt can never truly be reviewed by the Court as a matter of 
law because you have a matter of fact on the clearly erroneous 
standard standing in a way, putting a big brick wall in the 
Court's way. And I think that is the benchmark of what makes VA 
great, is that it provides the benefit of the doubt.
    But at the Court level, because of that standard of review, 
it is also one of the most meaningless laws.
    Mrs. Halvorson. Great, great. Well, thank you all for your 
testimony. You are all excused. And before we go to the third 
panel, I am going to quickly go vote and I will be back.
    [Recess.]
    Mrs. Halvorson. Thank you for being patient. Joining us on 
our third panel of witnesses is the Honorable James Terry, 
chairman of the Board of Veterans' Appeals for the U.S. 
Department of Veterans Affairs, and Mr. Ronald S. Burke, 
Director of the Appeals Management Center for the U.S. 
Department of Veterans Affairs. Welcome.
    Chairman Terry, you are now recognized for 5 minutes. 
Please proceed.

STATEMENT OF HON. JAMES P. TERRY, CHAIRMAN, BOARD OF VETERANS' 
  APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS; AND RONALD S. 
   BURKE, JR., DIRECTOR, APPEALS MANAGEMENT CENTER, VETERANS 
  BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS

                STATEMENT OF HON. JAMES P. TERRY

    Mr. Terry. Thank you, Madam Chairman, and good morning. It 
is a pleasure to be here. We really appreciate the opportunity 
to appear before the Subcommittee.
    Before giving some thoughts that respond to your letter of 
April 29th, I would like to respond to Mr. Cohen for just a 
minute. I must say on behalf of the Secretary, I was somewhat 
concerned with his statement that the emphasis of the 
Department is on the denial of claims for liars, frauds and 
cheats, and I feel that needs to be responded to.
    I would just ask the Chair to think about our system in 
toto. This year, 900,000-plus claims will be filed. Of that 
number, 550,000 or 61 percent will be granted, 350,000 will be 
denied, but 61 percent off the top will be granted. That's 
anything but looking for liars, frauds and cheats.
    Second, of those 350,000 claimants who are denied, only 1 
in 8 or 45,000 will think that, in a system where appealing to 
our Board is totally free, that there is any reason to do so, 
and that the explanation is not fair that he has received from 
one of the regional offices of the Veterans Benefits 
Administration (VBA).
    So 1 in 8 or 12 percent of those who are denied come to our 
Board, only 1 in 8. I think that reflects a certain pro-veteran 
fairness that certainly was not taken into consideration by Mr. 
Cohen. That is also 5 percent, merely 5 percent, of the 
original claimants who filed this year.
    Second, when you look at the 45,000 claimants who come to 
our Board, we attempt to try to hear their cases in 112 days 
when they reach our Board. Right now it is 112. It is down from 
155 last year. That is our cycle time when it actually reaches 
the Board. We are very concerned about a timely resolution of 
these cases. We recognize there are many other delays in the 
system, but I think the Board does an extremely fine job of 
trying to move the cases expeditiously when they reach our 
Board.
    Of those 45,000 claimants, there will be 22 percent granted 
or about 10,000 cases. There will be 17,000 cases denied or 
about 38 percent, and there will be 36 percent that are about 
15,000, that are remanded. I think it is important to note that 
this grant rate, in addition to the 61 original percentage 
points, is certainly more than representative of what we see 
among appellants in the Federal system at large.
    It is important to note, too, that of those 17,000 
claimants who are denied, only 4,100 of them last year appealed 
to the Court of Appeals for Veterans Claims. Certainly, one 
must understand, that is less than 25 percent who saw fit to 
appeal, even knowing that the $50 filing fee at the Court of 
Appeals for Veterans Claims is almost always waived by anyone 
requesting such.
    I think it is important to note that our explanations to 
the veterans who are denied are done in a way that is veteran 
friendly and is sensitive to their needs and certainly is 
sensitive to their condition.
    I admit, I am somewhat appalled by a statement that we are 
intent upon denying to veterans who we consider to be liars, 
frauds and cheats. That is simply not true.
    I would like to also say a little bit about the testimony 
earlier given with respect to the 70-percent remand rate. We 
remand approximately 35 percent and that is too much and we can 
certainly understand why--because the record is always open, 
the law changes, and certainly development is not always 
perfect below.
    But to suggest that 70 percent of the cases are remanded 
from the Court of Appeals for Veterans Claims is belied by 
their own statistics. Twenty percent of those cases that are 
filed in the Court of the 4,100 or the 4,128 that were actually 
new cases filed last year, 20 percent of those that were 
decided were dismissed, and certainly that is a reflection of 
the fact there was no merit to those cases, upholding certainly 
the Board of Veterans' Appeals.
    Twenty-five percent of those that were actually decided, of 
those that were actually decided on the merits, were affirmed. 
There were a number that were remanded, and far too many. They 
have 1,625 listed here and they certainly were included in a 
diversion program.
    But the concern I have is that they are an adversarial 
body, not a non-adversarial body, and a mediation and diversion 
program sound an awful lot like a non-adversarial process to 
me.
    And certainly we are anxious for the Court to decide more 
cases on behalf of the veterans because the mediation process 
doesn't result in final decisions on behalf of veterans. It 
results in cases coming back for further development, when in 
fact if a careful look at the case file were made, many of 
these decisions could be, in fact, finally decided.
    Now, let me talk for a moment, if I might, about those 
issues that you asked us to address in our testimony, and I 
would just mention a couple of areas in which this Committee 
and the Committee in the Senate could greatly assist all our 
veterans in getting more expeditious results and certainly 
assist them in getting those results more quickly.
    First of all----
    Mrs. Halvorson. Mr. Terry, I don't mean to interrupt you, 
but if you could bring it to a close within the next minute or 
so.
    Mr. Terry. Oh, absolutely, absolutely, ma'am.
    First of all, we would hope you would look at our concern 
that we take advantage more often of video hearings as opposed 
to travel boards. That would allow us to get more veterans 
served in a more expeditious period of time. We would ask you 
to support our paperless claims and appeals processing as the 
Secretary certainly has indicated he has an intent to do.
    We would ask you to certainly understand that the Expedited 
Claims Adjudication Initiative, which is now a pilot program, 
if implemented systemwide, would be a very, very effective way 
to move cases more quickly through the system, and that is 
certainly laid 
out in my written testimony, which I ask to be appended to the r
ecord.
    Thank you very much, Madam Chair.
    [The prepared statement of Mr. Terry appears on p. 55.]
    Mrs. Halvorson. Thank you, Mr. Terry.
    Mr. Burke, you now have 5 minutes.

               STATEMENT OF RONALD S. BURKE, JR.

    Mr. Burke. Thank you, and good afternoon. It is an honor to 
appear before you today to discuss the operations of VBA's 
Appeals Management Center.
    My statement today will focus on the workload at the AMC, 
and my plan for continuing improvements at that facility.
    The AMC's mission is to process remands from the Board of 
Veterans' Appeals, both timely and accurately. When the AMC is 
unable to grant an appeal in full, it is recertified to the 
Board of Veterans' Appeals for continuation of the appellate 
process.
    I was detailed to the position of Director of the Appeals 
Management Center in December of 2008 and permanently appointed 
in February of 2009. Prior to this appointment, I served as the 
Veterans' Service Center Manager for one of VBA's largest 
compensation and pension divisions in the Winston-Salem 
Regional Office, and prior to that as Service Center Manager 
for the Baltimore Regional Office. Before joining VA, I was a 
veterans service officer for an accredited veterans service 
organization.
    Since my appointment as Director, I have worked closely 
with AMC staff and VBA leadership to establish monthly 
performance goals and ensure increased accountability for AMC 
employees through monthly performance reviews.
    Additionally, I have reallocated staffing resources to 
improve the efficiency of operations, to include the evidence-
gathering, decisionmaking, and award-processing functions. 
These efforts have resulted in increased output of completed 
decisions, including the complete grant of benefits sought on 
appeal, partial grants of benefits sought on appeal, and 
appeals re-certified to the Board of Veterans' Appeals.
    During the first quarter of fiscal year 2009, the AMC 
averaged 902 completed cases each month. Average monthly output 
increased to 1,404 completed appeals during the second quarter, 
which represents an increase of almost 60 percent. During the 
month of March 2009, AMC completed a record 1,695 remanded 
appeals.
    The AMC currently manages an inventory of 21,428 cases 
using end-of-April 2009 numbers. This is a decrease of 750 
pending remands since the end of December 2008. I have worked 
with AMC staff to develop a comprehensive workload management 
plan to improve the timeliness of decisions and better manage 
AMC's remand inventory. This plan outlines workflow and 
processes, to include specific actions performed by each team, 
in order to improve our remand processing.
    Our current goal is to focus on processing the oldest 
pending remanded appeals in order to deliver decisions or re-
certify appeals to BVA for those of our veterans who have been 
waiting the longest period of time for a decision. As a result 
of this emphasis, AMC's ``average days to complete'' has risen 
from 461 days at the end of fiscal year 2008 to 567 days at the 
end of April 2009. This change is indicative of our emphasis on 
processing the oldest pending remands. I anticipate that as the 
oldest workload is completed, the ``average days to complete'' 
will show significant improvement toward the end of fiscal year 
2009 and into fiscal year 2010. In fact, the average day's 
processing at the Appeals Management Center has dropped more 
than 30 days since December of 2008.
    Since arriving at the AMC, I have aggressively recruited 
and hired new claims processing employees. Ten full-time 
employees have been added to the staff since late December 
2008, increasing the AMC's staffing level from 114 full-time 
employees to 124 employees. Recently, as a result of the 
American Recovery and Reinvestment Act, I was authorized to 
hire an additional 15 employees, and we are actively recruiting 
and hoping to have those new personnel on staff before the end 
of the month.
    To further improve timeliness and reduce the number of 
pending remands, the AMC does receive brokering assistance from 
the Huntington, Nashville, and Seattle Regional Offices. As the 
AMC productive capacity increases, my goal is to reduce the 
need for brokering assistance through fiscal year 2010.
    We continue to work diligently with Chairman Terry and his 
staff at the Board of Veterans' Appeals to increase and improve 
communications between the two facilities. Frequent telephone 
conversations and face-to-face meetings have been beneficial 
and will continue to play a pivotal role in improving the 
appellate workload. The AMC also benefits from a healthy and 
effective working relationship with many of the veterans 
service organizations.
    In the past 4 months, the AMC has seen a reduction in the 
number of remands pending and an increase in the number of 
remands completed. Since assuming leadership of the AMC in 
February 2009, I have seen significant incremental improvements 
in processing. While we are not content with where we currently 
stand, we are encouraged with the direction in which we are 
heading.
    In closing, VBA has made concentrated efforts to improve 
appellate processing and focus on the remanded workload by 
establishing a centralized processing center that establishes a 
core expertise in this area. The AMC is dedicated and will 
continue to be dedicated to timely and accurately collecting 
all evidence directed by the Board of Veterans' Appeals. Over 
the next year, I do anticipate continued improvements.
    This concludes my statement and I will be happy to respond 
to any questions that you may have. Thank you.
    [The prepared statement of Mr. Burke appears on p. 57.]
    Mrs. Halvorson. Thank you, Mr. Burke, I do have a few 
questions for the two of you.
    First of all, I keep hearing this 70 percent figure. Can 
either of you explain to me, then, why we hear 70 percent, but 
you are saying there is truly not a remand percent of 70 
percent coming back?
    Mr. Terry. I think it is certainly true that there are more 
remands both from the Board back to the regional offices 
because there hasn't been total development or from the Court 
back to the Board. I think one of the concerns we have had for 
some time is that the prejudicial error analysis, which has 
been required under Title V for a significant period of time, 
was not being applied in the way we thought that it should have 
been at the Court, and Simmons and Sanders [Shinseki v. Sanders 
556 U.S. ___ (2009)] in the Supreme Court this spring certainly 
made that very clear to the Court.
    I think that this will certainly result in a number of 
decisions being decided on the merits where they had not been 
by the Court before.
    I would also like to say that the diversion program, as I 
mentioned, is one in which case management is very effectively 
handled at the Court, and we believe that instead of mediating 
these cases and remanding them, if they could be more carefully 
reviewed, that a great number of them could be decided, and 
certainly I think I am joined by the Secretary in that view.
    Mrs. Halvorson. So, did I hear you say that you think that 
it is about 30 percent?
    Mr. Terry. I said that I am satisfied that there is at 
least 35 percent, and I certainly concur with that, but you 
have to remember how these cases are getting to the Court. They 
are being looked at by the Court in a substantive way, most 
often 2 to 3 years after we have decided them. The law has 
changed. There is new evidence before the Court that has been 
submitted. In those cases they have to send them back as a 
matter of law for review at the lower level.
    So I mean, there are a number of reasons why cases come 
back, oftentimes not in any way the fault of the Board.
    Mrs. Halvorson. I guess I am a little confused. But, maybe 
I just need your help to reconcile the discrepancy between the 
Court's conclusion and your annual report, which suggests that 
you are about 95 percent accurate.
    Mr. Terry. We have a way of looking at our decisions before 
they go out the door. We have a system called ``quality 
review'' where a percentage of all of our cases are reviewed. 
And certainly if any errors are recognized that would have 
resulted in a remand from the Court, we would certainly make 
those corrections. That becomes the next issue in our training 
evolution before all our members, for both our judges and our 
attorneys.
    But what I am suggesting is, that even the Committees of 
jurisdiction, both your Committee and that on the Senate side, 
found that the Court's recordkeeping did not give the 
Committees any indication of what the remand rates were and 
they asked, if you recall, in the Veterans Benefit Improvement 
Act of 2008 last fall, that they, this year, completely revamp 
their reporting so that it is clear what their percentages are. 
And I would simply say that it is not anywhere near 70 percent.
    We don't know what the percentage is precisely, but I can 
tell you that it is not 70 percent.
    Mrs. Halvorson. Would it be beneficial for the Board to be 
able to consider evidence submitted after the veteran response 
to a Supplemental Statement of the Case, especially if this 
happens multiple times, instead of sending the case back to the 
RO?
    Mr. Terry. We have a procedure now that we have implemented 
as of February of 2005, which authorizes that. It is a waiver 
process which we offer to the counsel and veteran in each case 
if there is additional evidence because, as you know, we are a 
de novo fact finder.
    Now, the veteran need not take advantage of that, but in 
many instances they do. We encourage it, and it certainly is a 
process which we find to be very, very effective in moving the 
cases forward.
    Mrs. Halvorson. What do you mean by saying ``the veteran 
take advantage of?'' I feel like, if we can give a veteran any 
advantage, I think that is our job. So I don't know what you 
mean----
    Mr. Terry. It certainly is, but there is an absolute right 
to have the agency of original jurisdiction consider all 
evidence on the veteran's behalf. But this is being done by 
non-lawyers as well. You need to understand that.
    In the case already at the Board of Veterans' Appeals, if, 
in fact, the veteran then submits additional evidence to the 
Board, we have to, as a matter of right to the veteran, send it 
back to the agency of original jurisdiction for a full review 
on his behalf, unless he waives that and says, no, it is at the 
Board, I want the Board to consider this evidence, I don't need 
it to go back.
    All I am suggesting is, that is a process which, in many 
cases, in every case in my view, would benefit the veteran.
    Mrs. Halvorson. Great. Because you are right. I don't 
understand any of that. All I understand is I am here for the 
benefit of the veteran.
    Mr. Terry. As I am as well.
    Mrs. Halvorson. If the CAVC's remand rate is not indicative 
of the BVA's performance, what are the BVA's internal quality 
measures?
    Mr. Terry. Our internal quality numbers, as I pointed out 
to you, we grant, as I pointed out to you, 22 percent of our 
cases, which is, in fact, very positive when reflected against 
other appellate bodies within the Federal Government.
    We deny, as I said, or uphold the agency in 38 percent of 
the cases. That is, we overturn the agency in 22 percent. We 
uphold them in 38 percent and additional development is needed 
in a number of cases. There are too many. We recognize that 
fact. We are working very hard with VBA and with Mr. Burke's 
organization to ensure that that development is improved. We 
consider that to be of great importance.
    But we have to remember, too, though, in an open system 
like we have, if we get additional medical evidence or if we 
get additional evidence of a late nature, we have to consider 
that and send it back unless that veteran is willing to waive 
consideration at the lower level.
    Mrs. Halvorson. One last question for you, Mr. Terry.
    Mr. Terry. Sure.
    Mrs. Halvorson. What do you think about the AFGE's 
suggestion that you need 50 more attorneys and additional 
administrative support staff to handle your workload? Have you 
made any such request to your leadership to get some extra 
help?
    Mr. Terry. Well, let me just indicate to you, in 2005 we 
had 434 full-time equivalents. Now, we have 519, as result of 
our request to your Committee, and certainly the Senate 
Committee of jurisdiction. Those folks are on board now. They 
are being trained. As you know, we decided 43,757 cases last 
year and we received 39,000 in. When I came on board in 2005, 
we had a backlog of in excess of 24,000.
    We are now down to 16,100. We are on our way down. We are 
exceeding our intake on a daily basis. I have to believe that 
the help and the assistance that this Committee and the 
Committee in the Senate have given us has been highly 
productive.
    We believe that the number of judges, 60; the number of 
attorneys, 320, is a pretty effective number for us to deal 
with the caseload we have. We greatly appreciate the assistance 
of this Committee. It has been wonderful.
    Mrs. Halvorson. Okay. I have so many more questions. I 
don't even know where to begin, but I just have one other 
followup. Is the BVA subject to meeting annual performance 
targets? And are these included in the VA's Annual Performance 
and Accountability Report that you send to Congress?
    Mr. Terry. We have internal production goals for our 
attorneys and for our judges. We ask each of our judges to 
attempt to decide 752 decisions a year, and we ask each of our 
attorneys to draft 156 timely and quality decisions in the 
course of their work.
    Mrs. Halvorson. Correct me if I am wrong. That sounds to me 
like production. I was wondering about measurable.
    Mr. Terry. You mean in terms of quality and timeliness? We 
evaluate each of our cases in terms of quality and timeliness. 
Each of our attorneys receives a report of that case. It is 
signed by the judge and presented to them when they complete 
the case.
    Each of our Chief Judges and our Deputy Vice Chairman 
review the cases of the 12 line judges on a continuing basis 
that work under their tutelage and certainly evaluate them. We 
have peer review on a yearly basis. We recertify each of our 
judges on behalf of the Secretary each year. In that peer 
review we look at the quality and timeliness of the judge's 
decisions and we also look at any trends that have arisen and 
use that for guidance from the senior leadership within each of 
the teams, decision teams.
    Mrs. Halvorson. Okay.
    Mr. Terry. I might add----
    Mrs. Halvorson. Okay. I guess I don't see that much as 
measurable. But who actually monitors the performance and the 
strategic objectives and the performances since you were 
talking about performance? Who monitors that within the VA?
    Mr. Terry. Who monitors our performance? I report to the 
Secretary on a weekly basis and certainly he is acutely aware. 
I report to him the number of decisions decided. I report to 
him any issues that arise within the Board. And certainly, if 
there is anything he needs to know, I am at his doorstep within 
5 minutes.
    Mrs. Halvorson. Great. Okay----
    Mr. Terry. I might add we are the only board, we are the 
only board within the Federal Government which has performance 
standards. We are the only board. We are the only one which has 
peer review, and we are the only one that has a recertification 
process. And I think it is important to note that, plus we are 
the only group of judges whose appointment is approved by the 
President.
    Mrs. Halvorson. Thank you.
    Mr. Burke, since the AMC testified before the Subcommittee 
in 2007, the inventory and the days pending has gone up in 
spite of the additional hires, training that has been conducted 
and the work that is been brokered back to the ROs. Can you 
explain how and why this is occurring? And please feel free to 
elaborate in any way you might need to.
    Mr. Burke. Thank you. The testimony that I provided today 
indicates that since December, we are starting to see a decline 
in both the averages pending and the inventory itself. Whereas, 
before, the inventory was showing a steady increase.
    By utilizing the staff members that we have and getting 
more of our full-time employees into more productive roles as 
they progress through their training element and as they gain 
more experience with the consolidated appeals review, we are 
starting to see a payoff, if you will, with the incoming 
compared to the number of cases that we are actually sending 
out of the AMC.
    So, in fact, the timeliness measures are being reduced, as 
is the inventory at the AMC.
    Mrs. Halvorson. Thanks. As the DAV aptly points out in its 
testimony, the AMC error rate is higher than its grant rate. Is 
this error typical in other RO performances, and what do you 
think this difference indicates?
    Mr. Burke. I can't speak for other Regional Offices, only 
my current experience at the AMC and my experience in two 
regional offices as the Service Center Manager.
    However, looking at the national average of the Nation's 
remand rate, the AMC's own remand rates or error rate, if you 
will, is fairly commensurate within about a percentage to a 
percentage and a half from the RO's percentages.
    Mrs. Halvorson. And so, you think that there is no 
difference, then?
    Mr. Burke. Not a measurable difference, but I will tell you 
one of the things that the AMC is doing at this point to reduce 
that error rate. The AMC has recently hired a station training 
coordinator. We are using the collected data of the remand 
reasons that is captured through our VACOL system to use for 
training. We also fall under the Systematic Technical Accuracy 
Review (STAR) Review and our own internal quality review 
process.
    So we are aware of the fact that improvement needs to be 
made in the error rate, and we are taking some steps at this 
point to remedy that.
    Mrs. Halvorson. I just want to add to that. How long have 
you been subject to STAR Review?
    Mr. Burke. The STAR Review for the AMC has not been a 
longstanding review. In fact, we are getting ready to go for 
our second sample that I believe gets pulled next month. So the 
AMC's purview under the STAR process has been relatively short 
lived.
    Mrs. Halvorson. When?
    Mr. Burke. I believe that started, the first sample was in 
October or November, if I'm correct, right before I got there.
    Mrs. Halvorson. November, October of this----
    Mr. Burke. Of 2008, ma'am.
    Mrs. Halvorson. Okay. On average, how many ready-to-rate 
claims do you have each month, and how long does it take for 
the AMC to process a ready-to-rate claim?
    Mr. Burke. Ballpark, as I don't have specific numbers in 
front of me, we normally have about 2,000 to 3,000 ready-to-
rate cases at any given time. Depending on the complexity of 
the development, the time to get a case ready for decision, it 
depends on the complexity of the case. The AMC has cases that 
require interaction with foreign entities for exam purposes, 
and those are normally a little longer to make ready-to-rate 
than others, but I would have to get you some specific numbers 
as our cycle time from the time the claim is received to the 
time that it is ready for decision.
    Mrs. Halvorson. Yeah, could you do that, please?
    Mr. Burke. Yes, ma'am.
    [The VA provided the information in response to Question #5 
of the Post-Hearing Questions and Responses for the Record, 
which appears on p. 60.]
    Mrs. Halvorson. How does your ready-to-rate claim ratio 
compare to the rate at the Regional Offices?
    Mr. Burke. That would be something I would have to get a 
comparison from our Central Office. I am not really aware of 
what the Regional Office ready-to-rate percentage is, but I 
would have to get some information for you on that as well.
    [The VA provided the information in response to Question #5 
of the Post-Hearing Questions and Responses for the Record, 
which appears on p. 60.]
    Mrs. Halvorson. It is my understanding that the AMC was 
created to alleviate the workload burden on the regional 
offices and develop a specialization in appeals. However, if 
the AMC is brokering claims and claims are being remanded, then 
can you please identify what the actual success of instituting 
the AMC has been?
    Mr. Burke. Yes, ma'am. And I think the success that the AMC 
has provided is being shown currently. Specifically, the second 
quarter of fiscal year 2009, where we have started to see a 
reduction of more than 30 days in our average days pending in 
that short period of time, as well as our inventory.
    We are, in fact, starting to reduce the amount of brokering 
need as the AMC's productive capacity increases. With the 
authority to hire under the Reinvestment Act, we also believe 
that will increase our ability to develop cases, to make more 
cases ripe for decision and also make decisions or recertify 
back to the Board.
    So I think that the AMC's success is being shown at current 
times and maybe with the increased staffing that we are going 
to benefit from, that we will continue to see that progress.
    Mrs. Halvorson. So you don't think it would be better just 
to hold the original jurisdictions more accountable?
    Mr. Burke. Each Regional Office has a set of performance 
expectations, and the remand rate and remand measures are a 
part of every regional office director's performance 
expectations. So the regional offices are, in essence, being 
held accountable for their work in the appellate process.
    The establishment of the Appeals Management Center allows 
for a centralized location, thus giving the AMC the opportunity 
to hone their expertise in processing appeals.
    Taking the appeals from the AMC now and putting that burden 
back on the field, which is already a strained system, in my 
opinion would not be beneficial.
    Mrs. Halvorson. So the AMC doesn't rely on the field at 
all?
    Mr. Burke. The AMC does rely on the field. Obviously the 
more completed cases, the more ready for decision that a case 
is. It reduces the chance that a case would be remanded from 
the Board to the AMC. However, the AMC is, with the exception 
of the brokering assistance, a relatively self-contained unit. 
The appeals are developed at the AMC. All of the development 
that is directed by the remand is done at the AMC. Decisions 
are rendered at the AMC and the recertification process is also 
done at the AMC.
    Mrs. Halvorson. Oh, okay. That is what I was trying to get 
at.
    Can you explain the re-remand?
    Mr. Burke. The re-remand is a situation where after the AMC 
receives a remand from the Board of Veterans' Appeals, we 
initiate the development action that was directed in such 
Remand Order. When the case is recertified back to the Board of 
Veterans' Appeals, should the Board realize that the 
development that was required in the order was not fully 
undertaken, it will be re-remanded back to the AMC.
    And what we are utilizing the re-remanded data for at this 
point is to provide stationwide training on trends and the 
analysis of what the Board says, you know, the following 
remanded directives were not undertaken.
    Mrs. Halvorson. Okay. So when you triage cases at the AMC, 
can you identify those cases that only require the Supplemental 
Statement in order to work those cases separately and quicker?
    Mr. Burke. Not necessarily. As the claims come through our 
triage department, the first priority is to get those claims 
under control so that they are on the AMC's inventory. And we 
try to get them as quickly as possible to our development 
staffs.
    The one thing that is triage right up front as the cases 
come in from the Board are those orders that result in full 
grants. And those are expedited and promulgated because that 
does not require additional development.
    Those type of cases coming through the triage department 
are readily screened through and expedited, but not to the 
point where we can determine what you are referring to, ma'am.
    Mrs. Halvorson. What would you think are the implications 
and the consequences when a claim is re-remanded from the BVA, 
and how much time would have to be added to that process for 
each re-remand?
    Mr. Burke. Having only been at the AMC for a brief period 
of time, my review of the re-remand issues is relatively in the 
infantile stages. I will tell you that many of the reasons for 
the re-remands deal a lot with medical examinations and the 
adequacy of medical examinations. And I will tell you that I 
just participated in a VA training session, a nationwide 
training session dealing with the adequacy of examinations. So 
that is certainly an area that we see as a large reason for 
cases being re-remanded.
    In addition to that, one of the things that we have 
instituted at the AMC is a more vigorous approach to adequate 
development up front, trying to get a faster control of the 
case as it comes through the AMC and trying to make sure that 
every specific step that is directed by the remand is 
undertaken at the earliest stage possible, and I think that is 
also assisting us as we benefit from a fairly significant 
reduction in ADP over the last quarter.
    Mrs. Halvorson. Mr. Terry, do you have anything you would 
like to add to that, about the implications and consequences 
when a claim is re-remanded from the BVA?
    Mr. Terry. There is no doubt that that increases the time 
for resolution, ultimate resolution a great deal.
    I might say that I know that the entire leadership of the 
VA is extremely pleased with the new leadership at the AMC and 
the impact they are making, and we certainly have great hope 
that that entire process will be improved greatly over the next 
months.
    Mrs. Halvorson. Mr. Terry, could you explain the ``directed 
development?''
    Mr. Terry. Directed development, you mean by the Board back 
to the regional office in a remand?
    Mrs. Halvorson. Yes.
    Mr. Terry. Each of our remands carefully and concisely 
explains exactly what must occur for the case to be developed 
as required for resolution of that case on behalf of the 
veteran. So each remand has a section where it lays out 
precisely what is expected before that case is returned.
    Mrs. Halvorson. Mr. Burke, what is the budget for the AMC?
    Mr. Burke. The budget for the AMC, a little over $10 
million in employee-related, and a little over $830,000 for 
non-payroll. That doesn't include travel or----
    Mrs. Halvorson. So your operating costs, especially the 
FedEx and courier services? What would that be about?
    Mr. Burke. We are spending on average for FedEx anywhere 
from $15,000 to $25,000 a month in FedEx services.
    Mrs. Halvorson. Wow. Why was the AMC not subject to the 
same level STAR Review as the regional offices?
    Mr. Burke. That I can't answer. I do understand that there 
is a need and a vested interest in making the AMC a continued 
part of the STAR process, but I don't have any historical 
information on that, ma'am.
    Mrs. Halvorson. Can you provide that information for the 
record?
    Mr. Burke. Yes, ma'am. I will have to get some information 
for you. Yes, ma'am.
    [The VA provided the information in response to Question #4 
of the Post-Hearing Questions and Responses for the Record, 
which appears on p. 60.]
    Mrs. Halvorson. Thank you. Is the AMC being included in the 
VA's plans to carry out the work credit and management systems 
that our studies mandated in P.L. 110-389?
    Mr. Burke. Specifically, ma'am?
    Mrs. Halvorson. The AMC being included in the VA's plans to 
carry out the work credit and management systems outlined under 
the Veterans' Benefits Improvement Act?
    Mr. Burke. I am not aware of any specific process.
    Mrs. Halvorson. Okay. So if you will just get it to us for 
the record, that would be great.
    Mr. Burke. Okay. Yes, ma'am. Thank you.
    [The VA provided the information in response to Question #6 
of the Post-Hearing Questions and Responses for the Record, 
which appears on p. 61.]
    Mrs. Halvorson. Well, since I am the only one asking 
questions, I guess----
    You have no questions, Minority Counsel? No. Okay.
    Well, we thank everyone here for being here today and for 
their statements and I know we surely appreciate everybody's 
valued insights and opinions, so at this point, the hearing 
stands adjourned.
    [Whereupon, at 12:55 p.m. the Subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              

           Prepared Statement of Hon. John J. Hall, Chairman,
       Subcommittee on Disability Assistance and Memorial Affairs
    Good Morning Ladies and Gentlemen:
    Would you please rise for the Pledge of Allegiance?
    This morning we are here to conduct an oversight hearing entitled, 
``Examining Appellate Processes and their Impact on Veterans.'' I thank 
the witnesses for coming and I look forward to working with you on some 
of the proposals that may require legislative changes. Making the 
administrative and judicial appeals processes better and more efficient 
for our veterans is our shared priority and I thank you for joining me 
in helping to find workable solutions.
    The process a veteran goes through when filing an appeal is a never 
ending story that this Subcommittee has heard many times before. A new 
claim is more like a short story. Upon submission, it can be developed 
and rated in about 6 months. However, if a veteran disagrees with the 
VA decision and files an appeal, then it becomes an epic tale that can 
go on for years or even decades.
    First, the veteran can appeal the Regional Office decision to the 
Board of Veterans' Appeals, known as the BVA. This process can take up 
to 2 years. From there, the veteran can appeal the BVA decision to the 
Court of Appeals for Veterans Claims, where the average time from 
filing to disposition is 446 days. From there, an appeal can be made to 
the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit 
Court usually takes up to a year to make a decision, which then can be 
appealed to the U.S. Supreme Court. This cycle can repeat itself a few 
times depending upon the options a veteran chooses and can take between 
5-10 years before there is any type of finality. I think, like me, many 
of you find this statistic astounding and evidence of an area that is 
in need of closer scrutiny by this Congress.
    How can we improve the efficiency and effectiveness of the 
appellate story to the benefit of our veterans, their families and 
survivors is the question at hand and the reason why I convened this 
hearing today. Right now, I think we all can agree that the multitude 
of appellate processes that involve constant re-development and re-
remands is at odds with providing our veterans the timely and 
meaningful appellate justice they deserve.
    First, I firmly believe that we must overcome the quality and 
accuracy challenges at VA's 57 Regional Offices, which perpetuate the 
unspoken belief held by many veterans and their advocates that given 
the variances in RO decisions, an appeal to the BVA is a necessity. 
Clearly, better standardized training and a hard look at the work 
credit reward system as outlined in my bill from the 110th Congress, 
the Veterans Disability Benefits Claims Modernization Act, H.R. 5892, 
which was incorporated into P.L. 110-389, should help on this front.
    However, I am also concerned that the BVA still employs a system of 
rewards based on the quantity of work rather than its quality. Despite 
the additional staff, centralization of appeals, and all of the 
training conducted since this Subcommittee heard from both the AMC and 
BVA in 2007, the backlog has increased by several thousand cases, days 
to process an appeal have only improved slightly, and remands have 
turned into re-remands. Thus, the appellate story is one that goes on 
and on with often no end in sight. Surely, this is not what anyone 
thinks of as justice for America's veterans?
    With a backlog of over 43,000 cases in FY08, the average length of 
time for an appeal with the BVA is an amazing 563 days. This 
inefficiency is only exceeded by the outcome of these long waits--a 22 
percent denial rate. Also, although BVA claims a 95 percent accuracy 
rate, the Court of Appeals for Veterans Claims remands at least 70 
percent of cases appealed, indicating a much lower quality rate in 
reality. It is clear from reading the BVA's annual report to Congress 
that these percentages are inconsistent and may not be based on the 
same quality measures that Congress considers indicative of good 
performance.
    I think too that we can fairly conclude that in its current state, 
the AMC is a failed experiment whose poor performance and lack of 
accountability confounds veterans, their advocates and Members of 
Congress alike. It is time we take a long hard look at this layer of 
bureaucracy, which adds nearly 2 years to the appellate process.
    I am eager to hear from the witnesses on this area of concern. 
Additionally, I look forward to hearing from Judge Kasold on the Court 
of Appeals for Veterans Claims' annual report, the 70 percent remand 
rate, and on Judge Greene's short and long-term plans for the Court as 
a critical piece in producing better appellate outcomes.
    Today's witnesses will speak to the concerns this Subcommittee has 
had with the BVA's and AMC's focus on production over quality, the poor 
development of claims, the lack of a technological infrastructure to 
manage information, and the lack of accountability throughout the 
entire adjudication and appeals process. I know too that we will hear 
about concerns we have with looking for ways that the Court of Appeals 
for Veterans Claims can serve as more of a final arbiter for veterans' 
appeals.
    Moving forward, I hope that we can come up with a consensus on a 
plan that will foster a way forward for veterans and perhaps mitigate 
the current cumbersome and lengthy appellate process. If this happens, 
then this is one story that could end a lot better.
    I now recognize Ranking Member Lamborn for his opening statement.

                                 
  Prepared Statement of Hon. Doug Lamborn, Ranking Republican Member,
       Subcommittee on Disability Assistance and Memorial Affairs
    Thank you Mr. Chairman for recognizing me. I thank you for holding 
this hearing on the Court of Appeals for Veterans Claims and its role 
in the efficient processing of disability compensation claims.
    I welcome our witnesses, especially Judge Kasold, and Chairman 
Terry, and thank you all for your contributions to the veterans' 
affairs system.
    As everyone is aware the VA's compensation and pension backlog has 
reached an epic and disgraceful level. While I understand that there 
are numerous challenges facing the Board, the appeals management 
center, and the Court of Appeals for Veterans Claims all three play a 
significant role in veterans waiting many months if not years for an 
accurate rating.
    I agree with our other witnesses that we can't just look at the 
Board in a vacuum. Poor quality work at the regional office level 
results in much larger problems later in the appeals process. We are 
seeing among veterans a growing propensity to appeal.
    We must ensure that rating boards strive to achieve thoroughness 
and accuracy along with efficiency in their work. Doing so is a key 
step toward eventual elimination of the backlog.
    I do want to commend Chairman Terry and the judges at the Court for 
the excellent work they are both doing. They are deciding a record 
number of appeals this fiscal year. While your output has increased the 
number of claims waiting to be reviewed is still too high.
    Our veterans deserve the best benefits delivery system we can 
provide. I was pleased to work with Chairman Hall in the last Congress 
on legislation that would improve how we serve veterans applying for 
benefits that they earned through a paperless and electronic system. It 
is my hope that the new electronic system that is being built at the RO 
level will compliment the system at the Board and Court.
    In the testimony we have read numerous suggestions regarding the 
Board's and the Court's operations, and I now look forward to our 
discussion on this essential facet of the benefits system.
    Mr. Chairman, I yield back.

                                 
              Prepared Statement of Hon. Bruce E. Kasold,
            Judge, U.S. Court of Appeals for Veterans Claims
    MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
    Good Morning. I am Judge Bruce E. Kasold, and I am here pursuant to 
your kind invitation of April 29th to Chief Judge William P. Greene, 
Jr., to address, from the Court's perspective, the efficiency and 
effectiveness of the appellate processes of both the Department of 
Veterans Affairs (VA) and the Court, and how they ``impact appeals 
outcomes for veterans.''
          I. AN ADMINISTRATIVE AND JUDICIAL APPELLATE PROCESS
    The appellate process for those with claims for veterans benefits 
has two distinct fora: administrative and judicial. Within VA, a 
Regional Office generally processes the claim and renders the first 
decision. When a claimant is dissatisfied with that decision, he or she 
has the right to appeal to the Board. The Board reviews the claim de 
novo; that is, it reviews the claim without any deference given to the 
initial decision. The Board ultimately renders the final decision for 
the Secretary. If the claimant is dissatisfied with the Board decision, 
he or she may seek reconsideration by the Board or appeal to the Court.
    Throughout the proceedings below, the claimant and the Secretary 
should be working together to maximize the claimant's benefits, if any 
are warranted under the statutes and regulations governing benefits. 
The Secretary has an affirmative duty to assist the veteran in 
gathering evidence, which includes, inter alia, liberally reading the 
scope of the veteran's claim, gathering evidence, advising the claimant 
what is needed to substantiate the claim, and providing a medical 
examination when needed.
    When an appeal is taken to the Court, the claimant enters the 
judicial arena. In the Federal judicial system, the parties are viewed 
equally, and the claimant, now the appellant, generally has the burden 
of demonstrating that the Board decision is either clearly erroneous, 
or that there is some procedural error that has been prejudicial to the 
claimant. If dissatisfied with a decision from the Court, an appellant 
has the right to appeal to the U.S. Court of Appeals for the Federal 
Circuit, although that court's jurisdiction generally is limited to 
questions of law. Upon dissatisfaction with the results from the 
Federal Circuit, appellants may seek certiorari at the Supreme Court, 
although over our 20-year existence, the Supreme Court has taken less 
than a handful of cases involving VA benefits claims.
                     A. The Judicial Appeal Process
    I would be remiss if I did not note for the record that the Court 
passed a milestone this past November 18, 2008, which marked the 20th 
year since its creation with President Ronald Reagan's signing into law 
the Veterans' Judicial Review Act 1988 (VJRA). The Court actually 
convened with three judges on October 16, 1989, and we look forward to 
celebrating this coming Fall the 20th year of judicial access and 
review for veterans and their families.
    Within our Court, I am pleased to report that we are operating on 
all cylinders. In contrast to the dynamics experienced just a few years 
ago, which saw the Court (1) reduced at one point to only three active 
judges taking a full caseload, and two active judges nearing senior 
status and not taking new cases, (2) undergoing excessive turnover in 
leadership, and (3) experiencing anew the growing pains of a virtually 
re-established Court with the replacement of six judges in a 2-year 
period, I am pleased to report that we now have a full complement of 
seven experienced, active judges. Moreover, under the outstanding 
leadership of Chief Judge Greene, we have, inter alia, an active 
recall-program for our senior judges and a new mediation program; and 
we now are in the process of fully implementing electronic filing. 
Without doubt, our senior judges have, overall, significantly helped 
with the issuance of timely judicial decisions. Equally significant has 
been the implementation last Spring of an aggressive mediation program, 
which, to date, has succeeded in expediting a resolution in over 25 
percent of the appeals filed, with the parties agreeing to a 
disposition that does not need judicial review; generally, the parties 
are agreeing to a remand for further adjudication below.
    As always, the Court is looking for ways to ensure timely judicial 
review. The primary time-consuming process that warrants review is the 
time to prepare the record before the agency and the briefing process. 
Both are essential to a judicial process that is not only fair and just 
to both parties, but perceived to be fair and just by the parties. On 
this issue, I note that there are a significant number of requests for 
additional time to prepare the record before the agency or a brief. On 
average, the Court receives approximately 800 motions for extensions of 
time, per month, from the Secretary, and about 200-300 from veterans 
and their counsel. Clearly both parties have time-management problems, 
but the Secretary, by far, has the greater number of requests for an 
extension of time. This is an area where a process change would benefit 
veterans by reducing the time they wait for decisions. I am not 
familiar with the Secretary's internal operations, but I understand 
there is recognition that additional staffing might be warranted, and I 
suspect this might be the most significant factor in helping to reduce 
the number of requests for additional time in which to prepare the 
record or required briefs.
    Additionally, viewing the judicial appeal process overall, and 
particularly in the context of 20 years of the development of Veterans 
law, it appears time to seriously consider the added value of the 
unique, additional right of the parties to seek review by another 
Federal appellate court. The majority of cases appealed to the Federal 
Circuit generally are dismissed for lack of jurisdiction--that is, they 
generally present no legal issue for review--or they are affirmed 
because the legal issue raised on appeal is well-settled. Appeals 
presenting novel or difficult issues can be time consuming and remain 
pending for years, and these appeals in particular can generate 
significant delays in the processing of claims below and appeals at the 
U.S. Court of Appeals for Veterans Claims. Moreover, a party 
dissatisfied with the Federal Circuit's decision might seek certiorari 
at the Supreme Court, with a resultant, further delay in the processing 
of other cases and appeals involving the same issue. As I previously 
noted, the Supreme Court has taken less than a handful of cases 
involving VA benefits claims, although it most recently reinstated two 
decisions of this Court that had been overturned by the Federal 
Circuit.
    There would appear to be little added-value to the current judicial 
process which not only permits, but requires, an appeal to the Federal 
Circuit before an appellant dissatisfied with a decision from the U.S. 
Court of Appeals for Veterans Claims might seek certiorari from the 
Supreme Court. Regarding the value of multiple layers of appellate 
review I am reminded of the wisdom of Supreme Court Justice Robert H. 
Jackson, who observed:

          Whenever decisions of one court are reviewed by another, a 
        percentage of them are reversed. That reflects a difference in 
        outlook normally found between personnel comprising different 
        courts. However, reversal by a higher court is not proof that 
        justice is thereby better done. There is no doubt that if there 
        were a super-Supreme Court, a substantial proportion of our 
        reversals of state courts would also be reversed. We are not 
        final because we are infallible, but we are infallible only 
        because we are final.

    Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., 
concurring.).

    Is the time right to evaluate the need for the unique, additional 
appellate review provided by the Federal Circuit? I understand Chief 
Judge Greene is on record in support of such an evaluation, as is our 
first Chief Judge--Chief Judge Nebeker--and I too strongly suggest that 
it is now worthy of consideration. I note that although direct 
certiorari review by the Supreme Court initially was not provided for 
the other two Article I appellate courts--the U.S. Court of Appeals for 
the Armed Forces (formerly the Court of Military Appeals), and the 
District of Columbia Court of Appeals--over time, as those courts 
matured and developed a seasoned body of case law, such review was 
provided. Moreover, when such review was provided for the D.C. Circuit 
Court of Appeals, the intermediate review previously provided by the 
U.S. Court of Appeals for the District of Columbia was eliminated.
    Eliminating the intermediate appellate review currently extant with 
veterans judicial appeals not only would reduce the time involved in 
the judicial appeal process for a particular case, it would reduce the 
overall processing time for many cases as issues that have a systemwide 
impact generally would be brought to final resolution in a more timely 
manner. I know some will object to losing that unique, additional bite 
at the apple, but it has been my observation that the few significant 
cases that the Federal Circuit viewed differently than our Court, 
generally have come down fairly equally, with the Secretary or the 
appellant being satisfied in one case only to be dissatisfied in 
another. Given Justice Jackson's observation, and the fact that we now 
have a seasoned body of case law, it appears timely to bring the 
judicial appeals process provided for review of claims for veterans 
benefits inline with the overall Federal judicial appeals process.
                  B. The Administrative Appeal Process
    When he spoke at the Court's Eighth Judicial Conference in April 
2004 about the relationship between the Court and VA, Professor Richard 
J. Pierce, Jr., Administrative Law Professor at the George Washington 
University Law School, cautioned that:

          Reviewing courts have important roles in the decisionmaking 
        process, but they are narrowly confined roles. The relationship 
        is definitely not that of a partnership or a hierarchical 
        relationship in which the court can tell the agency what to do.

    Professor Pierce went on to state that in situations where the 
reviewing court specializes in the subject matter that it reviews, such 
as here, the reviewing court must work hard to resist the temptation to 
fall into a partnership-type mentality with the agency, and must 
remember that ``agencies are autonomous entities that are entitled to 
respect and deference from the courts.'' (Pierce quoting Vermont Yankee 
Nuclear Power Corp. v. NRD, 439 U.S. 961 (1978). In sum, the Court sits 
in a judicial role and lacks the day-to-day administrative claims 
processing experience that might enlighten one on ways to improve on 
the timeliness of processing claims below.
    Nevertheless, we have some general observations, although I note 
that the Chairman of the Board generally has recognized these problem 
areas already, as stated in his annual report to Congress and as 
presented in February 2009 in testimony to the U.S. Senate Committee on 
Veterans' Affairs. Any observations of problem areas must take into 
consideration the gravamen of the situation. It is my understanding 
that in the past couple of years, the Secretary has processed and 
rendered an initial decision in hundreds of thousands of claims 
annually, with about 40,000 being appealed to the Board. About 15 
percent of these decisions are appealed to our Court, but it is my 
understanding that a good number of the Board decisions involve a 
remand for continued adjudication by the regional office. This general 
fact presents two areas for discussion.
                      1. Appeal of Board Decisions
    Of those Board decisions appealed to the Court, about 70 percent 
are remanded for further adjudication. This figure represents cases 
where the sole disposition by the Court was a remand, as well as those 
appeals where the Court remanded the Board's decision in part. The most 
common error is the failure to sufficiently explain the basis for a 
decision. The Board is statutorily required to explain its decision, 
and our case law requires an explanation that discusses the material 
and relevant evidence and explains the basis for the decision so that 
it allows the appellant to understand the precise reason for the 
decision as well as permits judicial review.
    It is important to understand the impact of this requirement. Under 
our case law, except in very limited circumstances, an appeal is not 
remanded for the sole purpose of requiring the Board to explain its 
decision, which likely could be done in relatively short order if 
evidence was not further developed. Rather, a remand from our Court 
also permits the appellant a new opportunity to further develop the 
claim. He or she might gather new evidence, request the Secretary to 
assist in gathering records, or present a basis for an initial or new 
medical examination to be given. This development takes time, 
particularly given the fact that the claim had been denied on the facts 
previously developed. Since this involves the development of a claim 
for veterans benefits, as opposed to an added judicial review of a 
completed record, this second chance to develop the claim seems 
consistent with our Nation's commitment to seeing that those entitled 
to veterans benefits receive those benefits. The time added to 
processing the claim seems justified, although efforts should certainly 
be undertaken--and continued--to reduce the need for the remand in the 
first instance, and to gather any additional evidence, etc., when a 
remand is nevertheless warranted.
    Another large number of cases are remanded because the development 
below was inadequate. A medical exam was not provided, or records were 
not obtained, or a hearing officer failed to inform a claimant of a 
reasonably raised, undeveloped issue with the claim. Should these be 
properly done in the first instance? Certainly. But here, we cross the 
threshold into management and resources, and I defer to the Secretary 
and chairman of the board for their insight on this. Suffice it to say, 
human error is the sustaining basis for the creation and continuation 
of appellate courts, including the U.S. Court of Appeals for Veterans 
Claims.
    Approximately one-quarter of the cases appealed to the Court are 
affirmed. This often ends the matter, although a dissatisfied party has 
a right to seek reconsideration or appeal to the Federal Circuit. Less 
than 5 percent of the decisions of the U.S. Court of Appeals for 
Veterans Claims result in an outright reversal of the Board's decision. 
No doubt appellants would like to see that higher, but I note that the 
high remand rate can often result in an award based on the proper 
development of the facts (improperly done initially), or renewed 
development of the facts (generated by the claimant in conjunction with 
a remand based on a faulty explanation of a Board decision or other 
procedural error)--facts that were missing when the matter was decided 
by the Court, and which precluded an outright reversal and award of 
benefits.
                    2. Remand of Claims by the Board
    Pursuant to statute, and consistent with general appellate review, 
the Court does not review a decision of the Board that has remanded a 
claim for further development. There has been no suggestion that I know 
of to change this, but for the record, we perceive that doing so would 
only delay processing further with no benefit to anyone.
    Nevertheless, we are cognizant of the high number of remands 
generated by the Board. This appears consistent with their mandate, 
which includes de novo review of the claim--that is a complete review 
of the matter without any deference to the initial decisionmaker, as 
well as application of the benefit of the doubt and the duty to assist. 
As I understand it, only a small percentage of the hundreds of 
thousands of claims adjudicated by the Secretary are appealed to the 
Board. Nevertheless, a high number of remands suggests a high degree of 
error in those claims appealed to the Board, and this would appear to 
be an area that might be improved. As noted above, however, here we 
cross into the administration and management of the claims process, 
where we defer to the Secretary, the Board Chairman, and the oversight 
provided by Congress and the President.
            II. RELATIONSHIP BETWEEN THE COURT AND THE BOARD
    As indicated previously, the Board sits atop the administrative 
adjudication of claims for veterans benefits. It is an independent body 
within VA and it conducts de novo review of the claims it reviews, 
although it is required to apply the Secretary's regulations and 
policies, and opinions of the General Counsel. Under these parameters, 
the Board ultimately renders the final decision for the Secretary under 
laws that affect the provision of veterans benefits.
    Once the Board renders its final decision on a matter, it may be 
appealed to the Court. Only a dissatisfied claimant may appeal. The 
Secretary is not permitted to initiate an appeal; however, once an 
appeal is initiated, he may defend the decision of the Board, although 
he is not required to do so. Indeed, the Secretary frequently suggests 
to the Court that there is Board error and that remand is appropriate, 
and the high success rate in our mediation process indicates the 
Secretary's cooperation with the mediation process.
    When appealing to the Court, the claimant transitions from the 
veteran-friendly administrative process, where the Secretary has a duty 
to assist and apply the benefit of the doubt, to the traditional 
adversarial, judicial, appellate process, where both parties are equal 
and expected to present their positions to the Court for judicial 
decision (or mediation).
    Unlike the Board, the Court generally does not conduct de novo 
review, except when questions of law are presented. Thus, the facts are 
developed below and weighed below with application of the benefit of 
the doubt. On appeal to the Court, the facts found by the Board are 
reviewed for clear error. Consequently, consistent with general Federal 
appellate review, a degree of deference is given to agency fact-
finding. In contrast, but also consistent with general Federal 
appellate review, questions of law are reviewed without deference. Also 
consistent with general Federal appellate review, the appellant 
generally has the burden of demonstrating error and prejudice resulting 
from that error.
    By statute, the Court is permitted to render single-judge 
decisions. Given the fact that a claim on appeal to the Court has 
undergone at least two reviews below, with fact-development available 
at each stage, the nature of an appeal frequently presents no new issue 
of law, and involves only a review of the facts and application of the 
law. The single-judge authority permits a case to be reviewed and a 
decision rendered, and written, more timely than a panel case can be 
issued. To ensure uniformity and soundness of decision, however, each 
single-judge decision is circulated for review by all active judges. 
Further, a party dissatisfied with the decision has a right to request 
reconsideration by the single judge and/or panel review, which 
generates a panel decision that either finds no basis for full-panel 
review and lets the single-judge decision stand, or conducts a full 
review of the appeal, de novo to the single-judge decision. A single-
judge decision is binding with regard to the appeal considered but it 
has no binding effect on other cases being processed below--this is 
because it generally is fact specific or involves an already accepted 
application of law.
    Those appeals presenting novel questions of law or reasonably 
debatable questions of fact or law are reviewed by panel or the full-
court. Over the past couple of years, the Court has averaged about 65 
appeals that are sent to panel for initial decision or decided by the 
full-court. Full-court and panel decisions have full precedential 
effect and are binding on the Secretary and the Board, as well as 
future decisions of the Court when issued by a single judge or another 
panel.
    Judicial review by a specialized Court, as is the U.S. Court of 
Appeals for Veterans Claims--limited to review of final Board decisions 
and ancillary matters--might be viewed as twofold. It provides judicial 
review for the individual claimant; that is review that is wholly 
independent of the executive or legislative branch. Within our Nation 
and set of values, this independent judicial review is a sacred right, 
and one for which our veterans fought many years to achieve. But there 
is a second aspect to judicial review by a specialized court. Judicial 
decisions that have precedential value (our panel and full-court 
decisions) are binding on the agency, and can help establish uniformity 
in the adjudication of matters within the agency. Compliance is 
enforced not only by the Secretary and the Board, but by the uniform 
application of law and subsequent decisions of the Court.
    With rare exception, we perceive no bad faith or gross negligence 
in the processing and adjudication of claims below. From our 
perspective, an enormous number of claims are processed and adjudicated 
by the Secretary and the Board. Judicial review helps to ensure 
mistakes are corrected. Efforts should indeed be taken to reduce the 
number of errors made, particularly the repetitive errors, but the 
overall review structure between the Court and the Board is sound.
    It strongly appears that at least for the present and near future, 
the number of claims filed below will remain high, which likely will 
keep appeals to the Board and the Court high. I have confidence that 
the Court is poised and ready to handle the appeals that we will 
receive. I defer to the Secretary and the Board with regard to their 
operations.
                            III. CONCLUSION
    We recognize that it is the political branches of government that 
must take the steps necessary to create the laws and the framework 
surrounding veterans benefits which the Executive branch is then 
charged to administer with the Legislative branch conducting 
appropriate oversight; and it is our responsibility to provide judicial 
review of Board decisions when timely appealed. On behalf of the judges 
of the Court, we appreciate the opportunity to engage in dialog aimed 
at strengthening and improving the veterans benefits adjudication 
system as a whole, and we thank the Committee for its efforts in this 
regard.

                                 
    Prepared Statement of William Angulo Preston, Acting President,
  American Federation of Government Employees, Local 17, on behalf of
       American Federation of Government Employees, AFL-CIO, and,
             Associate Counsel, Board of Veterans' Appeals,
                  U.S. Department of Veterans Affairs
    Dear Chairman and Members of the Subcommittee:
    Thank you for the opportunity to present our views on appellate 
processes and their impact on veterans on behalf of the American 
Federation of Government Employees, AFL-CIO (AFGE), the exclusive 
representative of the employees in the Board of Veterans' Appeals 
(Board).
    AFGE's testimony addresses the following: the need to expand the 
Board's legal staff and administrative staff; recommendations for 
process improvement including specialization, establishing another 
decision team and using employees of the Board to transform the Board's 
adjudication into a paperless system; and, changing eligibility rules 
for the Vice Chair position.
I. EXPANSION OF THE BOARD'S LEGAL STAFF
    The Board needs additional attorneys to handle its caseload. We use 
the term ``caseload'' rather than ``backlog'' because it more 
accurately describes the flow of claims from VA Regional Offices (ROs) 
and the U.S. Court of Appeals for Veterans Claims (Court) by operation 
of statutes and regulations. The Board's jurisdiction in claims by 
veterans is established by receipt of a substantive appeal signed by 
either the veteran or by the representative of the veteran. All cases 
for which a substantive appeal has been entered become the Board's 
caseload.
    AFGE urges Congress to provide funding for the Board to hire at 
least fifty additional attorneys initially, in addition to maintaining 
current staffing levels. That expansion should continue with additional 
attorneys being hired thereafter until the current caseload decreases. 
The expanded legal staff should remain in place until the caseload 
significantly declines, as measured by a percentage of the total 
caseload or another measure that accurately reflects a decrease in the 
number of cases for which a substantive appeal has been filed.
II. EXPANSION OF THE BOARD'S ADMINISTRATIVE STAFF
    The Board currently faces a significant bottleneck in the 
administrative processing of claims caused by a shortage of staff to 
process claims. An initial inadequate ratio of support staff to 
attorneys has worsened over the years as the Board has increased the 
number of attorneys without a comparable increase in support staff. 
Administrative staff members are as critical to sending completed 
decisions to the veterans as the attorneys and Veterans Law Judges 
(VLJs) who write and sign decisions. We suggest an approximate ratio of 
one administrative support staff member for every two attorneys.
    Therefore, AFGE recommends joint labor-management efforts to 
identify all the specific ``bottlenecks'' currently contributing to the 
Board's growing caseload will also be very productive and will assist 
in the determination of the optimal administrative staffing levels and 
structure.
III. SPECIALIZATION
    Specialization by both the Board attorneys and the VLJs would 
increase their familiarity with laws governing a specific set of 
benefits, which in turn would increase the quality of the decisions as 
well as their quantity. (The quantity would increase due to greater 
familiarity with the pertinent case law and a consequent decrease in 
the need for research.)
    Therefore, AFGE recommends that the Subcommittee require the Board 
to identify approximately twenty areas of specialization and to assign 
no more than three such areas to each VLJ. Each VLJ would retain those 
areas of specialization for 3 years. Other cases not involving an issue 
of specialization could be assigned to any VLJ.
    Attorneys would also benefit from this specialization, in light of 
our recommendations. Attorneys who completed their probationary period 
and are performing successfully for the VLJ would continue working in 
that VLJ's area of specialization for 3 years. If the attorney passes 
his or her probationary period and thereafter performs unsuccessfully, 
he or she will be reassigned to a different supervisor for a year, with 
that supervisor allowed to administer a performance-based action after 
90 days.
IV. ESTABLISH A FIFTH DECISION TEAM
    The Board should be reorganized to add an additional decision team 
to the four presently in place. The additional decision team would be 
larger than the others and would handle all issues appealed from 
decisions by the other four teams, by reconsidering them (a current 
part of the law) and issuing a decision that is ready for appellate 
review. This would increase both the quality of the decisions reviewed 
by the Court and the quality of decisions received by veterans. It 
should also speed up the issuance of decisions generally.
    In addition, the four current decision teams should be required by 
statute to write ``appellant-friendly'' decisions, i.e., decisions 
meant solely for the veteran or other appellant and his or her 
representative, and not the Court. Thus, these decisions would be 
shorter and would not contain the legal explication only required to 
pass Court muster. Decisions would be more accessible to veterans and 
other appellants since there would be no requirement to use language 
designed to be defended before the Court.
V. USE OF BOARD EMPLOYEES TO TRANSFORM THE BOARD'S ADJUDICATION INTO A 
        PAPERLESS SYSTEM
    AFGE strongly supports the Department's goal of conversion of the 
Board to a fully paperless system, moving with all due dispatch to have 
all claims files be paperless. AFGE's recommends tapping the knowledge 
that exists among Board employees to effectively transform the Board's 
adjudication process into a paperless system. More specifically, we 
urge that the new system be designed to allow easy access to these 
files by employees conducting search queries.
    The system that results should be user-friendly for VA employees, 
the veterans we serve, and veterans service organizations. To that end, 
we believe that the experience and insights of BVA employees who work 
with claims files each day must be incorporated into any process of VA 
going paperless. Board employees and their representatives should work 
jointly with management during the transition process to ensure that 
the new system is implemented effectively, that the needs of veterans 
remain paramount, and that employees receive training and other support 
to accurately and efficiently adjudicate claims without interruption 
during and after this transition period.
    Rather than contract out the scanning and other related tasks to a 
private contractor, we urge Congress to create additional employment 
opportunities for veterans within the Department by establishing a new 
administrative unit. This new unit would be located within the Board, 
however it does not necessarily need to be stationed at VA 
headquarters. In-house scanning would enable the conversion to take 
place at a reasonable pace and reasonable cost. In addition, the 
Board's in-house knowledge base would grow and other Board staff would 
have access to technicians who are directly responsive to the Board and 
to the veterans, in contrast to for-profit private contractors who at 
best are only remotely involved in or familiar with day-to-day Board 
operations.
VI. REVISED ELIGIBILITY RULES FOR VICE CHAIR POSITION
    We urge Congress to modify the current statutory provision related 
to the selection process for Vice Chair of the Board to require that 
that person be employed at the Board for at least twelve months prior 
to appointment as Vice Chair. Veterans and the Board's attorneys are 
both adversely impacted when the Vice Chair lacks sufficient 
familiarity with Board operations.
VII. OTHER COMMENTS
    A.  RO Training: We support quality, comprehensive training of 
Regional Office (RO) staff conducted by the Board employees as it will 
improve the quality and timeliness of decisions made at the RO level. 
However, AFGE members from the field report that this training program 
is sporadic and not available at most ROs. We urge Congress to provide 
the oversight and funding to ensure that this valuable training is 
provided consistently across all ROs.
    B.  VCAA: The letter notifying claimants of their rights under the 
Veterans' Claims Assistance Act should be much shorter and use 
nontechnical language.
    C.  Revise VA Form 9: Instead of requiring the veteran to submit a 
VA Form 9 to indicate whether he or she wants to continue or withdraw 
the appeal, a form should be attached to the front of the Statement of 
the Case (SOC) that the veteran can fill out to state his or her 
preference in this regard. Also, the deadline for receipt of the form 
by the RO should be made much more visible than it is currently.

                                 
                   Prepared Statement of Kerry Baker,
  Assistant National Legislative Director, Disabled American Veterans
    Mr. Chairman and Members of the Subcommittee:
    I am pleased to have this opportunity to appear before you on 
behalf of the Disabled American Veterans (DAV), to address problems and 
suggest solutions to the Department of Veterans Affairs (VA) disability 
claims process; specifically, the appeals process.
    The appeals process is extremely complex and often not understood 
by many veterans, veterans' service representatives, or even VA 
employees. Numerous studies have been completed on timeliness of claims 
and appeals processing, yet the delays continue and the frustrations 
mount. Therefore, the following suggestions are intended to simplify 
the process by drastically reducing delays caused by superfluous 
procedures while simultaneously preserving governmental resources and 
reducing governmental expenditures.
    As VBA renders more disability decisions, a natural outcome of that 
process is more appellate work from veterans and survivors who disagree 
with various parts of the decisions made in their case. In recent 
years, the appeal rate on disability determinations has climbed from a 
historical rate of approximately 7 percent to a current rate that 
ranges from 11 to 14 percent. The 824,844 disability decisions in 2007 
generated approximately 100,000 appeals. The VA estimates that the 
942,700 projected completed disability decisions in 2009 will likely 
generate as much as 132,000 appeals. At the end of 2007, there were 
over 180,000 appeals pending in regional offices and the Appeals 
Management Center (AMC).
    This increase in appellate workload seriously affects VA's ability 
to devote resources to initial and reopened claims processing. Appeals 
are one of the most challenging types of cases to process because of 
their complexity and the growing body of evidence that must be reviewed 
in order to process them. Likewise, the number of actions taken in 
response to VA's appellate workload has increased. In 2001, the VA 
processed more than 47,600 statements of the case (SOCs) and 
supplemental statements of the case (SSOCs). In 2007, they processed 
over 130,000 SOCs and SSOCs.
         THE APPEAL PROCESS AND THE BOARD OF VETERANS' APPEALS
I. Remove Procedural Roadblocks to Efficiency in the Appeals Process
    To begin the appeal process, an appellant files a written notice of 
disagreement (NOD) with the VA regional office (RO) that issued the 
disputed decision. For most cases, the appeal must be filed within 1 
year from the date of the decision. After filing an initial NOD, the VA 
sends the appellant an appeal election form asking him/her to choose 
between a traditional appellate-review by a rating veterans' service 
representative (RVSR) or a review by a decision review officer (DRO). 
DROs provide a de novo (new decision and no deference to previous 
decision), review of an appellant's entire file, and they can hold a 
personal hearing with the appellant. DROs are authorized to grant 
contested benefits based on the same evidence utilized by the initial 
rating board. The VA provides the appellant 60 days to respond to the 
appeal election form. See 38 C.F.R. Sec. 3.2600 (2007).
    Once the VA receives the appeal election form, the RVSR or DRO (as 
appropriate) issues an SOC explaining the reasons for continuing to 
deny the appellant's claim. A VA Form 9, or substantive appeal form, 
which is used to substantiate an appeal to the Board of Veterans' 
Appeals (``Board'' or ``BVA'') is attached to the SOC. The VA Form 9 
must be filed within 60 days of the mailing of the SOC, or within 1 
year from the date VA mailed its decision, whichever is later.
    If the appellant submits new evidence or information with, or 
following, the substantive appeal, (or any time after the initial SOC 
while the appeal is active) such as records from recent medical 
treatment or evaluations, the local VA office prepares an SSOC, which 
is similar to the SOC, but addresses the new information or evidence 
submitted. The VA must then give the appellant an additional 60 days to 
respond (with any additional evidence, for example) following the 
issuance of an SSOC. If the appellant submits other evidence, 
regardless of its content, the VA must issue another SSOC and another 
60 days must pass before the VA can send the appeal to the Board. In 
many cases, this process is repeated multiple times before a case 
reaches the Board. In many of these cases, the appellants are simply 
unaware that they are preventing their appeal from reaching the Board.
    The VAROs are not supposed to submit a case to the Board before the 
RO has rendered a decision based on all evidence in the file, to 
include all new evidence. This restriction stems from 38 U.S.C.A. 
Sec. 7104, which has been interpreted to mean that the Board is 
``primarily an appellate tribunal'' and that consideration of 
additional evidence in the first instance would violate section 7104 
and denies an appellant ``one review on appeal to the Secretary,'' 38 
U.S.C.A. Sec. 7104(a) (West 2002 & Supp. 2007); see Disabled Am. 
Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1346 (Fed. Cir. 
2003).
    The foregoing procedures force the ROs to repeatedly issue SSOCs in 
many cases, which drastically lengthens the appeal, frustrates the VA, 
and confuses the appellant. The problem does not end there. If an 
appellant submits new evidence once the case is at the Board, or if the 
RO submits a case to the Board with new evidence attached, the Board is 
prohibited from rendering a decision on the case and is forced to 
remand the appeal (usually to the Appeals Management Center (AMC)), if 
for no other reason but for VA to issue an SSOC.
    Notwithstanding the above, an appellant can choose to waive the 
RO's jurisdiction of evidence received by VA after a case has been 
certified to the Board by submitting a written waiver of RO 
jurisdiction. In the case of an appeal before the VARO, this results in 
VA not having to issue an SSOC concerning the newly submitted evidence. 
In the case of an appeal before the Board, it results in not requiring 
the Board to remand the case solely for issuance of an SSOC.
    The Board amended its regulations in 2004 so that it could solicit 
waivers directly from appellants in those cases where an appellant or 
representative submits evidence without a waiver. 38 C.F.R. 
Sec. 20.1304(c); see 69 Fed. Reg. 53,807 (Sep. 3, 2004). This has 
helped to avoid some unnecessary remands. The Board's remand rate 
decreased from 56.8 percent in fiscal year (FY) 2004, to 35.4 percent 
in FY 2007 due in part to these procedures. Nonetheless, the Board 
still remanded 1,162 cases solely for the VA to issue an SSOC. The 
frustrating reality of this situation is that issuing an SSOC may only 
consume one work hour from an experienced employee, but the case will 
nonetheless languish at the AMC for the next 2 years while the VA 
completes that 1-hour's worth of work.
    The statistical data for appeals in the VA represents a significant 
amount of its workload. Appellants filed 46,100 formal appeals 
(submission of VA Form 9) in FY 2006 compared with 32,600 formal 
appeals in FY 2000. The annual number of BVA decisions, however, has 
not increased. As a result, the number of cases pending at BVA at the 
end of FY 2006--40,265--was almost double the number at the end of FY 
2000. These numbers are exclusive to appeals at the Board and do not 
include the substantial number of appeals processed by the appeals 
teams in VAROs and especially the AMC.
    In FY 2007, the Board physically received 39,817 cases. Despite 
this number of cases making it to the Board, the VBA actually issued 
51,600 SSOCs, a difference of 11,783.\1\ As of May 2008, the VBA has 
already issued 38,634 SSOCs. Likewise, the Board has remanded an 
additional 1,162 cases solely for the issuance of an SSOC. This number 
does not include cases wherein the appellant responded to the Board's 
initiation of a request for waiver of RO jurisdiction, thereby 
eliminating the requirement for a remand for VBA to issue an SSOC.
---------------------------------------------------------------------------
    \1\ The number of SSOCs may exceed 51,600 because VA's appeals 
tracking system only records up to 5 SSOCs per case.
---------------------------------------------------------------------------
    The average number of days it took to resolve appeals, by either 
the Veterans Benefits Administration (VBA) or the Board, was 657 days 
in FY 2006.\2\ This number, however, is very deceptive, as it 
represents many appeals resolved at the RO level very early into the 
process. The actual numbers show a picture much worse. According to the 
FY 2007 Report of the Chairman, Board of Veterans' Appeals, a breakdown 
of processing time between steps in the appellate process is as 
follows:
---------------------------------------------------------------------------
    \2\ Note: Appeals resolution time is a joint BVA-VBA measure of 
time from receipt of notice of disagreement by VBA to final decision by 
VBA or BVA. Remands are not considered to be final decisions in this 
measure. Also not included are cases returned as a result of a remand 
by the U.S. Court of Appeals for Veterans Claims.

      NOD to receipt of SOC--213 days--VARO;
      SOC issuance to receipt of VA Form 9--44 days--appellant;
      receipt of VA Form 9 to certification to the Board--531 
days--VARO;
      receipt of certified appeal to Board decision--273 days--
Board;

    Total--1,061 days from NOD to Board decision--sadly, many are much 
longer.
    The function that should conceivably take the least amount of time 
actually took the most amount of time--receipt of VA Form 9 to 
certification to the Board. The reason for this lengthy time VA spends 
on a relatively simple task is in part the result of issuing multiple 
SSOCs.
    Congress has the chance to eliminate tens of thousands, and 
possibly far more than 100,000 hours annually from VA's workload, 
including the costs associated therewith. Such changes would also 
simplify an important part of the appeals process and can be made by 
minor statutory amendments.
    Congress should amend 38 U.S.C. Sec. 5104 (Decisions and Notices of 
Decisions) subsection (a), to eliminate the need to wait until after an 
appellant files an NOD in order to issue an appeal election letter. 
Such an amendment would further eliminate the requirement that VA allow 
an appellant 60 days to respond to such a letter, thereby shortening 
every appeal period by 60 days.
    The provisions of the foregoing statute states, inter alia, that 
when VA notifies a claimant of a decision, ``[t]he notice shall include 
an explanation of the procedure for obtaining review of the decision.'' 
38 U.S.C.A. Sec. 5104(a). This section could be amended to read: ``The 
notice shall include an explanation of the procedure for obtaining 
review of the decision, to include any associated appeal election 
forms.'' The VA could then modify 38 C.F.R. Sec. 3.2600 accordingly.
    Despite this suggested statutory amendment, a solid argument exists 
that supports a proposition that the VA can incorporate this 
recommendation by modifying its regulation. As indicated above, the law 
requires that VA, when issuing a decision, notify a claimant of the 
``procedure for obtaining review'' of the decision. The right to elect 
traditional appellate process or a post-decision review from a DRO is 
certainly part of the ``procedure for obtaining review.'' See Id. We 
nonetheless suggest a statutory amendment to ensure compliance and to 
shield the Department from possible litigation, however unlikely.
    The VA currently receives over 100,000 NODs annually (approximately 
119,000 in 2008). This minor change would eliminate 60 days of undue 
delay in every one of those appeals and eliminate VA's requirement to 
separately mail, in letter format, all 119,000 appeal election forms. 
This recommendation would have a tremendous effect on VA's appeals 
workload without the need to expend any governmental resources.
    Amend 38 U.S.C.A. Sec. 7104 in a manner that would specifically 
incorporate an automatic waiver of RO jurisdiction for any evidence 
received by the VA, to include the Board, after an appeal has been 
certified to the Board following submission of a VA Form 9, unless the 
appellant or his/her representative expressly chooses not to waive such 
jurisdiction. This type of amendment would eliminate the VA's 
requirement to issue an SSOC (currently well over 50,000 annually) 
every time an appellant submits additional evidence in the appellate 
stage. It would also prevent the Board from having to remand an appeal 
to the AMC solely for the issuance of an SSOC (currently well over 
1,100 annually). Further, the substantial amount of time spent by the 
Board wherein it actively solicits waivers from possibly thousands of 
appellants each year would be eliminated.
    One possible way for the VA to administer such a change is by a 
simple amendment to its VA Form 9. The amendment would merely require 
the appellant or his/her representative to specify whether additional 
evidence received at a later point is exempt from the waiver when such 
evidence is submitted. The notice should be clear that evidence 
received by VA without an express exemption will be forwarded directly 
to the Board for review.
    Such an amendment should state that the statutory change applies 
``notwithstanding any other provision of law.'' This language would 
prevent any contradiction with other statutes and future confusion 
caused by any potential judicial review. This type of legislative 
change would reduce VA and BVA's workload by many thousands of hours 
while also reducing the appellate period in tens of thousands of cases 
by 60 days per SSOC. The VA could then utilize the resources freed by 
these changes to focus on other causes of delay in the claims process.
II. The Time Has Come to Reduce the Appellate Period From One Year to 
        Six Months
    The DAV believes the time has come to reduce the 1-year appellate 
period currently allowed for filing a timely NOD following the issuance 
of a rating decision from 1 year to 6 months. This subject has been the 
discussion topic in countless hallway and sidebar conversations for a 
considerable period of time. It is time these discussions be made 
public.
    President Hoover, under the authority of a July 3, 1930, Act of 
Congress, consolidated the Veterans' Bureau, the Bureau of Pensions, 
and the National Home for Disabled Volunteer Soldiers into a single 
government agency--the Veterans' Administration. This Act created the 
Board of Veterans' Appeals.
    For over 100 years prior to this, disabled veterans seeking 
pensions had to navigate ever-changing bureaucracies. For years, many 
had to petition through a mix of Congress and what is now the Court of 
Federal Claims (i.e., The People's Court) just to be recognized as 
having veteran status.
    From the U.S. Civil War up to 1988, a span of 125 years, there was 
no judicial recourse for veterans who were denied disability benefits. 
The Veterans Administration (formerly), was virtually the only 
administrative agency that operated free of judicial oversight.
    Also throughout these years, the Executive could, and did, 
implement measures to repeal benefits anytime it felt justified. For 
example, President Franklin D. Roosevelt created ``Special Boards of 
Review'' in 1933, staffed by civilians that were not VA employees. 
These Boards sua sponte reviewed over 51,000 cases--only 43 percent of 
veterans whose cases where reviewed were allowed to keep their 
benefits.
    Veterans stepped up pressure for judicial review after World War 
II. Those whose claims for benefits were denied by the Veterans 
Administration were afforded no independent review of decisions. 
Veterans were denied the right afforded to many other citizens to go to 
court and challenge similar agency decisions.
    The status quo of no judicial review of veterans claims persisted 
until an influx of post-Vietnam claims in the 1970s and 80's directed 
the spotlight on an adjudication process in obvious need of reform. The 
House Committee on Veterans' Affairs consistently resisted efforts to 
alter the VA's unique status and noted that the Veterans Administration 
stood in ``splendid isolation'' as the single Federal administrative 
agency whose major functions were explicitly insulated from judicial 
review. (The Supreme Court was sure to remind all of the coldness of 
that term in a landmark decision.) \3\ By now, history had proven that 
without proper oversight, those wishing to cut veterans' benefits, 
whether couched in government reform or expressly decided by an Agency 
Board, while ignoring the suffering caused by their service-connected 
disabilities would do so without hesitation.
---------------------------------------------------------------------------
    \3\ See Brown v. Gardner, 513 U.S. 115, 118 (1994) (holding that 
statutory interpretation, or ``interpretative doubt'' be resolved in a 
veteran's favor and further stating: ``But even if this were a close 
case, where consistent application and age can enhance the force of 
administrative interpretation . . . , the government's position would 
suffer from the further factual embarrassment that Congress established 
no judicial review for VA decisions until 1988, only then removing the 
VA from what one congressional Report spoke of as the agency's 
`splendid isolation' (citation omitted). As the Court of Appeals for 
the Federal Circuit aptly stated: `Many VA regulations have aged nicely 
simply because Congress took so long to provide for judicial review. 
The length of such regulations' unscrutinized and unscrutinizable 
existence' could not alone, therefore, enhance any claim to 
deference.''
---------------------------------------------------------------------------
    The Veterans' Judicial Review Act finally created a veterans' court 
under Article I of the Constitution on November 18, 1988. This Act of 
Congress, along with a multitude of other favorable pieces of 
legislation throughout the years, has solidified the VA into its 
current non-adversarial, veteran-friendly, pro-claimant system. 
Veterans and their dependents also have more avenues than ever before 
to choose from when seeking representation in the claims and appeal 
process. Veterans' organizations are also stronger than ever and stand 
ready to fight against any power that might try to reduce benefits.
    It is for all of these reasons and many more, however, that 
reducing the appellate period from 1 year to 6 months would not reduce 
veterans' rights. Such a time would also be consistent with other 
appellate periods. For example, an appellant currently has 60 days in 
which to file an appeal to the Court of Appeals for the Federal Circuit 
from the Court of Appeals for Veterans Claims, and 120 days to file an 
appeal to the Court of Appeals for Veterans Claims from the Board. It 
necessarily follows then that a fair period to file an NOD, which is 
the first step in initiating an appeal to the Board, would be an 
additional 60 days, totaling 180 days, which is still an extremely long 
period by any appellate standards. Additionally, when originally 
enacted in 1930, the U.S. Postal System was barely effective compared 
to today's reliable system. Such an unreliable postal system in place 
nearly 80 years ago, when disabled veterans were truly ``on their own'' 
further supported the need for a 1-year appellate period. This is no 
longer the case.
    Since originally suggesting this recommendation, many have asked 
whether VA receives most appeals during the first or second half of the 
appellate period. The answer supports our proposition: Out of 
approximately 119,000 NODs in 2008, 92,000 were received in less than 6 
months. In fact, the average time it took appellants to file NODs 
following a rating decision was only 41 days.
    Congress should decrease the period in which a VA claimant may 
submit a timely notice of disagreement to the VA following the issuance 
of a VA rating decision from 1 year to 6 months. We realize that some 
may impulsively draw several inferences onto this idea. Those 
inferences will likely be misplaced--our ambitious goal is to take 
every opportunity in which to bring efficiency to VA's entire claims 
process so that it can better serve our Nation's disabled veterans. We 
must be open to change for such a goal to succeed.
    This is also an opportunity to bolster certain statutory rights for 
which the law is currently silent. When amending the appellate period 
from 1 year to 180 days, Congress must include an appellate period 
extension clause and equitable tolling clause to the appropriate 
section of law concerning NODs.
    Specifically, we recommend changing the law so that an appellate 
may, upon request, extend his/her appellate period by 6 months, beyond 
the initial 6 months. We also suggest an amendment to provide for 
equitable tolling of the appellate period in cases of mental or 
physical disability so significant as to have prevented a VA claimant 
from responding within the specified time.
III. The Appeals Management Center Promotes an Atmosphere Low in 
        Accountability, Has a Poor Record of Success, and Should be 
        Dissolved
    VA's quality assurance tool for compensation and pension claims is 
the Systematic Technical Accuracy Review (STAR) program. According to 
VA's 2007 performance and accountability report, the STAR program 
reviewed 11,056 compensation and pension (C&P) cases in 2006 for 
improper payments. While this number appears significant, the total 
number of C&P cases available for review was 1,540,211. Therefore, the 
percentage of cases reviewed was approximately seven-tenths of 1 
percent, or 0.72 percent.
    Another method of measuring error rates and assessing the need for 
more accountability is an analysis of the Board's Summary of Remands. 
Of importance is that its summary represents a statistically large and 
reliable sample of certain measurable trends. Review these examples in 
the context of the VA (1) deciding 700,000 to 800,000 cases per year; 
(2) receiving over 100,000 local appeals; and (3) submitting 40,000 
appeals to the Board. The examples below are from FY 2007.
    Remands resulted in 998 cases because no ``notice'' under 38 
U.S.C.A. Sec. 5103 was ever provided to the claimant. The remand rate 
was much higher for inadequate or incorrect notice; however, 
considering the confusing (and evolving) nature of the law concerning 
``notice,'' we can only fault the VA when it fails to provide any 
notice. This is literally one of the first steps in the claims process.
    VA failed to make initial requests for SMRs in 667 cases and failed 
to make initial requests for personnel records in 578 cases. The number 
was higher for additional followup records requests following the first 
request. This number is disturbing because initially requesting a 
veteran's service records is the foundation to every compensation 
claim. It is claims development 101.
    The Board remanded 2,594 cases for initial requests for VA medical 
records and 3,393 cases for additional requests for VA medical records. 
The disturbing factor here is that a VA employee can usually obtain VA 
medical records without ever leaving the confines of one's computer 
screen.
    Another 2,461 cases were remanded because the claimant had 
requested a travel board hearing or video-conference hearing. Again, 
there is a disturbing factor here. A checklist is utilized prior to 
sending an appeal to the Board that contains a section that 
specifically asked whether the claimant has asked for such a hearing.
    The examples above totaled 7,298 cases, or nearly 20 percent of 
appeals reaching the Board, all of which cleared the local rating board 
and the local appeals board with errors that are elementary in nature. 
Yet, they were either not detected or they were ignored. Many more 
cases were returned for more complex errors. Nevertheless, for nearly a 
20-percent error rate on such basic elements in the claims process 
passing through VBA's most senior of rating specialist and DROs is 
simply unacceptable.
    The problem with the VA's current system of accountability is that 
it does not matter if VBA employees ignored these errors because those 
that commit such errors are usually not held responsible. One may ask, 
``how does this apply to the appeals process?'' Simple, with the advent 
of the AMC, local employees handling appealed cases have little 
incentive to concern themselves with issues relating to accountability 
because if the Board remands a case, then in all likelihood, the appeal 
will be sent to the AMC, not back to the local employee. Therefore, 
local employees realize they will most likely never see the case again.
    Further, the AMC is essentially considered a failure throughout the 
veteran community, including VSOs and VA employees. Part of this 
failure is displayed in how and when appeals are resolved throughout 
the appellate process. As of the end of FY 2007, the Board had disposed 
of 24.5 percent of all appeals with an initial decision--21.7 percent 
were resolved at local offices prior to submission of a form 9, which 
usually means the appeal was granted--another 11.8 percent were 
resolved at local offices after receipt of a Form 9, which also usually 
means the appeal was granted. Approximately 35.5 percent of all Board 
decisions were remands; however, only 2.8 percent were resolved after a 
BVA remand.
    As it pertains to the AMC, the 2.8 percent must shrink even further 
when realizing that some appeals are returned to the Agency of Original 
Jurisdiction, such as egregious errors and those represented by 
attorneys. Therefore, the AMC is succeeding in resolving less than 2.8 
percent of VA's appellate workload. This begs the question of what 
exactly is the AMC doing?
    The AMC received nearly 20,000 remands from the Board in FY 2008. 
By the end of FY 2008, the AMC had slightly over 21,000 remands on 
station. By the end of January 2009, they had approximately 22,600 
remands on station. The AMC completed nearly 11,700 appeals, out of 
which 9,811 were returned to the Board, 89 were withdrawn, and only 
1,789 were granted. In fact, 2,500 appeals were returned to the AMC at 
least a second time because of further errors in carrying out the 
Board's instructions, over a 25-percent error rate. This means the 
AMC's error rate was higher than its grant rate. Such a poor record of 
performance would never be allowed to exist at an RO. Returning these 
cases to their respective jurisdictions will help ensure 
accountability, and most likely reduce the number of cases that proceed 
to the Board of Veterans' Appeals.
    If remands were returned to ROs rather than the AMC, local 
employees would inherently be held to higher accountability standards. 
Additionally, a large amount of resources, such as that utilized by the 
AMC, would no longer be wasted on such little output. Congress has 
already laid the path for this action--VA must now capitalize on the 
opportunity.
    Congress recently enacted Public Law 110-389, the ``Veterans' 
Benefits Improvement Act of 2008'' (S. 3023). Section 226 of S. 3023 
requires VA to conduct a study on the effectiveness of the current 
employee work-credit system and work-management system. In carrying out 
the study, VA is required to consider, among other things: (1) measures 
to improve the accountability, quality, and accuracy for processing 
claims for compensation and pension benefits; (2) accountability for 
claims adjudication outcomes; and (3) the quality of claims 
adjudicated.
    The legislation requires the VA submit the report to Congress no 
later than October 31, 2009, which must include the components required 
to implement the updated system for evaluating employees of the 
Veterans Benefits Administration. No later than 210 days after the date 
on which the Secretary of Veterans Affairs (Secretary) must submit the 
report to Congress, the Secretary must establish an updated system for 
evaluating the performance and accountability of employees who are 
responsible for processing claims for compensation or pension benefits.
    Congress and the Administration must not conduct the foregoing 
actions without including the appeals process--it is inextricably 
intertwined with the entire claims processing system. Section 226 of 
Pub. L. 110-389 may provide the perfect opportunity to dismantle the 
dysfunctional AMC, return appeals to local offices, and include the 
appellate process when enhancing VA's accountability as required by the 
Veterans' Benefits Improvement Act of 2008.
    When implementing the results of the Secretary's upcoming report 
required by section 226 of the foregoing Act of Congress, the 
Department must include the appellate process when seeking improvements 
in the claims process. In doing so, one important action with respect 
to the appellate process should be to dissolve the AMC and return 
remanded appeals to those responsible for causing the remand. The 
appellate process must further be included in an accountability 
program, in accordance with section 226, that will detect, track, and 
hold responsible those VA employees who commit errors while 
simultaneously providing employee motivation for the achievement of 
excellence.
                THE COURT OF APPEALS FOR VETERANS CLAIMS
IV. Congress Should Enforce the Benefit-of-the-Doubt Rule
    The Court upholds VA findings of ``material fact'' unless they are 
clearly erroneous, and has repeatedly held that when there is a 
``plausible basis'' for the Board's factual finding, it is not clearly 
erroneous. Yet, title 38, United States Code, section 5107(b) grants VA 
claimants a statutory right to the benefit of the doubt with respect to 
any benefit under laws administered by the VA when there is an 
approximate balance of positive and negative evidence regarding any 
issue material to the determination of a matter.
    Nonetheless, the Court mostly affirms BVA findings of fact when the 
record contains only minimal evidence necessary to show a ``plausible 
basis'' for such finding. This renders a claimant's statutory right to 
the benefit of the doubt meaningless because claims can be denied and 
the denial upheld when supported by far less than a preponderance of 
evidence. In other words, the weight of evidence for and against a 
claim can be equal, therefore invoking the equipoise, or benefit-of-
the-doubt standard; however, the Court still upholds a denial based on 
weaker evidence if it finds plausibility despite the unfavorable 
evidence failing to equal the value of the favorable evidence. This 
effectively moots the benefit of the doubt. These actions render 
congressional intent under section 5107(b) meaningless.
    Congress tried to correct this situation when it amended the law 
with the enactment of the Veterans Benefits Improvement Act of 2002 \4\ 
(VBA of 2002) to expressly require the Court to consider whether a 
finding of fact is consistent with the benefit-of-the-doubt rule. The 
Court has not upheld the intended effect of section 401 \5\ of the VBA 
of 2002. This is in part due to the Court's jurisprudence of reviewing 
the Board's application of section 5107(b) as a finding of fact. As 
long as that is the case, it is reviewed by the Court under the clearly 
erroneous standard, which invokes the plausible-basis standard by 
direction of higher courts' jurisprudence.
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    \4\ Pub. L. No. 107-330, 401, 116 Stat. 2820, 2832.
    \5\ Section 401 of the Veterans Benefits Act, effective December 6, 
2002, amended title 38, United States Code, sections 7261(a)(4) and 
(b)(1).
---------------------------------------------------------------------------
    In the VBA of 2002, Congress added new language to section 
7261(b)(1) that mandates the Court to review the record of proceedings 
before the Secretary and the BVA and ``take due account of the 
Secretary's application of section 5107(b) of this title. . . .'' \6\ 
Therefore, as the foregoing discussion illustrates, Congress intended 
the VBA of 2002 to fundamentally alter the Court's review of BVA fact-
finding. This is evident by both the plain meaning of the amended 
language of these subsections as well as the unequivocal legislative 
history of the amendments.\7\
---------------------------------------------------------------------------
    \6\ See 38 U.S.C. Sec. 7261(b)(1).
    \7\ See 148 CONG. REC. S11334 (remarks of Sen. Rockefeller) 
(emphasis added).
---------------------------------------------------------------------------
    Yet, the nearly impenetrable ``plausible basis'' standard continues 
to prevail as if Congress never amended section 7261. Why? The DAV 
believes this is because the Court cannot reasonably find a way around 
the clearly erroneous review applicable to factual findings. The Court 
reviews an application of law under the de novo standard, by which the 
Board's decision is not entitled to any deference. 38 U.S.C.A. 
Sec. 7261(a) (West 2002 & Supp. 2006). In particular, the Court has 
held that it reviews ``question[s] of statutory and regulatory 
interpretation . . . de novo.'' Meakin v. West, 11 Vet.App. 183, 187 
(1998). Application of section 5107(b) is therefore an application of 
statutory right, meaning the Secretary should receive no deference in 
such cases.
    In order to understand this impenetrable wall in front of the 
Court's review of the Board's application of the benefit of the doubt, 
Congress should look no further than 38 U.S.C.A. Sec. 7261(a)(4), which 
states: ``[I]n the Case of a finding of material fact adverse to the 
claimant made in reaching a decision . . . , [the Court shall] hold 
unlawful and set aside or reverse such finding if it is clearly 
erroneous.'' 38 U.S.C.A. Sec. 7261 (West 2002 and Supp. 2007) (emphasis 
added). Congress can clarify this entire matter simply by further 
defining ``material fact.''
    Application of the benefit of the doubt usually comes down to the 
Board weighing the probative value of two pieces of evidence, one in 
favor of an appellant, and one against. The Board then assigns 
probative weight to each piece of evidence. If it ultimately determines 
the weight of the unfavorable evidence is more probative than the 
weight of the favorable evidence, it decides the evidence is not in 
equipoise and the benefit of the doubt does not apply, and the 
appellant loses. Board decisions sometimes use entire pages of 
discussion to cite case after case of how its assignment of probative 
value and weight are ``factual findings'' reversible only if ``clearly 
erroneous'' while further emphasizing that if plausible, their findings 
cannot be ``clearly erroneous.'' So how can the Court ever review de 
novo an appellant's statutory right under 5107(b) if it cannot 
penetrate the Board's factual finding under a clearly erroneous 
standard? The answer lies in the meaning of the phrase ``material 
fact.''
    Simply put, not every finding, factual or otherwise, rises to the 
evidence (as opposed to mere opinion) based finding of ``material 
fact.'' The entire practice of VA litigation, whether at the Board or 
the Court, has, for two decades, been locked in group think believing 
that any judgment call by the Board, regardless of how flimsy, in 
assigning probative weight to two opposite pieces of evidence renders 
such judgment call a ``material fact.'' It does not--it cannot.
    A material fact is defined as ``[a] fact that is significant or 
essential to the issue or matter at hand.'' Black's Law Dictionary 629 
(8th ed. 2004). A material fact is a ``potentially outcome 
determinative'' fact. Pike v. Caldera, 188 F.R.D. 519, 527 
(S.D.Ind.1999). A ``fact'' is further defined as ``[s]omething that 
actually exists; an aspect of reality.'' Black's Law Dictionary 628 
(8th ed. 2004). Likewise, ``material'' is defined as ``[h]aving some 
logical connection with the consequential facts ''. 
Id at 998.
    Therefore, notwithstanding that the Board is a duly recognized 
fact-finder, see id., at 629, only findings of ``material fact'' are 
restricted to the highly deferential clearly erroneous standard of 
review. The Board's judgment call, per se, its opinion, can never rise 
to the level of ``material fact.'' Therefore, Congress should amend 
section 7261 to make clear that mere judgment calls by the Board when 
reviewing evidence for and against a claim in the assignment of 
probative value, when subject to a benefit-of-the-doubt review under 
section 5107(b), is reviewed as a matter of law, or de novo. 
Alternatively, such findings could be viewed under the arbitrary and 
capricious standard, which affords some deference to the Agency and 
applies to an application of law to a set of facts. Regardless, such 
opinion-based judgment calls cannot rise to the level of a ``material 
fact'' if words in the law are to be given the legal meaning.
    Mr. Chairman, the benefit of the doubt under section 5107(b) is the 
most important standard that sets the VA benefits apart from others. 
Yet, in the highest levels of appellate litigation, it is sometimes the 
most meaningless. It is time that meaning is restored.
                               CONCLUSION
    We are confident these recommendations, if enacted, will help 
streamline the protracted appeals process and drastically reduce undue 
delays. Some of recommendations contained herein may appear novel and/
or controversial at first; they may even draw criticism. However, such 
a response would be misdirected. These recommendations are carefully 
aimed at making efficient an inefficient process without sacrificing a 
single earned benefit.
    Mr. Chairman, last week the DAV released its official 
recommendation for a 21st century claims processing system. Most of the 
recommendations incorporated herein are also in that proposal. The 21st 
Century Claims Process goes much further than the recommendations in 
today's testimony. We have provided your staff as well as the staffs of 
Chairman Filner, Ranking Member Buyer, Chairman Akaka, and Ranking 
Member Burr with a copy of the new proposal.

                                 
               Prepared Statement of Barton F. Stichman,
   Joint Executive Director, National Veterans Legal Services Program
    MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
    Thank you for the opportunity to present the views of the National 
Veterans Legal Services Program (NVLSP) on the current process by which 
appeals of VA benefit claims are adjudicated and its impact on 
veterans. This testimony focuses on the two major tribunals that decide 
appeals of VA benefit claims--the Board of Veterans' Appeals (BVA) and 
the U.S. Court of Appeals for Veterans Claims (CAVC).
    NVLSP is a nonprofit veterans service organization founded in 1980. 
Since its founding, NVLSP has represented thousands of claimants before 
the Board of Veterans' Appeals and the Court of Appeals for Veterans 
Claims. NVLSP is one of the four veterans service organizations that 
comprise the Veterans Consortium Pro Bono Program, which recruits and 
trains volunteer lawyers to represent veterans who have appealed a 
Board of Veterans' Appeals decision to the CAVC without a 
representative. In addition to its activities with the Pro Bono 
Program, NVLSP has trained thousands of veterans service officers and 
lawyers in veterans benefits law, and has written educational 
publications that thousands of veterans advocates regularly use as 
practice tools to assist them in their representation of VA claimants.
    My testimony today is informed by the widespread frustration and 
disappointment in the VA claims adjudication system experienced by 
disabled veterans and their survivors. They face a number of serious 
challenges at both the BVA and the CAVC. As we describe below, there 
are several significant problems that cry out for a legislative or 
policy fix.
       A. The Longstanding Delay in Forwarding Appeals to the BVA
    One of the reasons for the unreasonably long delays that occur in 
VA decisionmaking is the long time it takes for VA to forward an appeal 
to the BVA for a decision. This interval occurs after (a) the veteran 
files his or her claim; (b) the regional office (RO) issues a decision 
denying the claim; (c) the veteran files a notice of disagreement with 
the RO decision; (d) the RO issues a statement of the case (SOC); and 
(e) the veteran files a VA Form 9 (entitled ``Appeal to the Board of 
Veterans' Appeals'') on which the veteran states whether he or she 
wants the Board to decide the appeal based on the record or after a BVA 
hearing.
    The Board reported in its FY2006 Report (at 16) that it took an 
average of 489 days (1 year and 4 months) after the filing of the Form 
9 appeal for the RO to ``certify'' the appeal (that is, to forward the 
VA claims file to the BVA for a decision). In its FY2008 Report (at 
19), the Board reported that the average time from filing a Form 9 
appeal to certifying the appeal had increased to 563 days (1 year and 
nearly 7 months).
    This Subcommittee should investigate why there is a 563-day time 
lag. But NVLSP is already aware of one of the major reasons for this 
large time lag: the VA policy that governs what takes place if the 
claimant submits additional evidence after the filing of the Form 9, 
but before the appeal is certified to the Board. While veterans wait 
for months on end for their case to be sent to the BVA, they often 
decide to submit additional evidence in support of their claim. Since 
they have already appealed to the BVA, they often assume that this 
evidence will first be reviewed by the BVA. Yet, VA policy is that 
whenever the veteran submits new evidence during this period, the case 
is sent to an RO adjudicator who reviews both the new evidence and the 
claims file and prepares a new decision in the form of a Supplement 
Statement of the Case (SSOC). Then, if the veteran submits additional 
evidence after the SSOC, the case is again sent to an RO adjudicator to 
review the new evidence and the claims file and prepare yet another 
SSOC. In some cases, the VA has taken the time to prepare four or more 
SSOCs before the case is forwarded to the BVA for a decision.
    This VA policy should be changed. Much time and tens of thousands 
of VA work hours per year would be saved if VA regulations and the Form 
9 were amended to explain that any evidence submitted with or after 
submission of the form will be forwarded directly to the Board and will 
not considered by the RO unless the claimant or the claimant's 
representative specifically elects to have the additional evidence 
considered by the RO.
                          B. The Hamster Wheel
    For many years now, those who regularly represent disabled veterans 
before the BVA and CAVC have been using an unflattering phrase to 
describe the system of justice these veterans too often face: ``the 
Hamster Wheel.'' This phrase refers to the following common phenomenon: 
multiple decisions are made on the veteran's claim over a period of 
years as a result of the claim being transferred back and forth between 
the CAVC and the BVA, and the BVA and the RO for the purpose of 
creating yet another decision. The net result is that frustrated 
veterans have to wait many years before receiving a final decision on 
their claims.
    There are at least three aspects of the BVA's and CAVC's 
decisionmaking process that contribute to the Hamster Wheel phenomenon: 
(1) the high error rate that exists in BVA decisionmaking, which delays 
the decisionmaking process by requiring disabled veterans to appeal to 
the CAVC to correct these errors, which, in turn, leads to further VA 
proceedings on remand; (2) the policy adopted by the CAVC in 2001 in 
Best v. Principi, 15 Vet.App. 18, 19-20 (2001) and Mahl v. Principi, 15 
Vet.App. 37 (2001); and (3) the CAVC's reluctance to reverse erroneous 
findings of fact made by the Board of Veterans' Appeals.
                  Contributor #1 to the Hamster Wheel:
           The High Error Rate at Board of Veterans' Appeals
    The most prominent fact in assessing the performance of the Board 
of Veterans' Appeals is the track record that Board decisions have 
experienced when an independent authority has examined the soundness of 
these decisions. Congress created an independent authority that 
regularly performs this function--the U.S. Court of Appeals for 
Veterans Claims. Each year, the Court issues a report card on BVA 
decisionmaking. This annual report card comes in the form of between 
1,000 and 3,600 separate final judgments issued by the Court. Each 
separate final judgment incorporates an individualized judicial 
assessment of the quality of a particular one of the 34,000 to 44,000 
decisions that the Board issues on an annual basis.
    For more than a decade, the Court's annual report card of the BVA's 
performance yields the following startling fact: of the 23,173 Board 
decisions that the Court individually assessed over the last 14 years 
(that is, from FY 1995 to FY 2008), the Court set aside a whopping 76.4 
percent of them (that is, 17,698 individual Board decisions). In each 
of these 17,698 cases, the Court set aside the Board decision and 
either remanded the claim to the Board for further proceedings or 
ordered the Board to award the benefits it had previously denied. In 
the overwhelming majority of these 17,698 cases, the Court took this 
action because it concluded that the Board decision contained one or 
more specific legal errors that prejudiced the rights of the VA 
claimant to a proper decision.
    By any reasonable measure, the Court's annual report card on the 
Board's performance has consistently been an ``F.'' But an equally 
startling fact is that despite a consistent grade of ``F'' for each of 
the last 14 years, no effective action has ever been taken by the 
management of the BVA to improve the Board's poor performance. Year 
after year, the Court's report card on the Board has reflected this 
same failing grade.
    To formulate an effective plan to reform the Board and 
significantly improve its performance requires an understanding of the 
underlying reasons that the Board has consistently failed in its 
primary mission (i.e., to issue decisions on claims for benefits that 
comply with the law). Over the last 20 years, NVLSP has reviewed over 
10,000 individual Board decisions and thousands of Court assessments of 
these decisions. Based on this review, NVLSP has reached three major 
conclusions:
 1. The Board Keeps Making the Same Types of Errors Over and Over Again
    The decisions of the Board and the final judgments of the Court 
reflect that the Board keeps making the same types of errors over time. 
For example, one common error involves the type of explanation the 
Board is required to provide in its written decisions. When Congress 
enacted the Veterans' Judicial Review Act 1988, it expanded the type of 
detail that must be included in a Board decision to enable veterans and 
the Court of Appeals for Veterans Claims to understand the basis for 
the Board's decision and to facilitate judicial review. See 38 U.S.C. 
Sec. 7104(d).
    The Board has consistently been called to task by the Court for 
faulty explanations that violate 38 U.S.C. Sec. 7104(d). These 
violations fall into several common patterns. One pattern is that the 
Board often does not assess or explain why it did not credit positive 
medical evidence submitted by the claimant from a private physician, 
while at the same time expressly relying on a negative opinion provided 
by a VA-employed physician. The problem here is not that the Board 
decided to credit the opinion of the VA physician and discredit that of 
the private physician. The problem is that the Board never explained 
its analysis (if indeed, it had one) of the private physician's opinion 
in the first place.
    Another common pattern involves lay testimony submitted by the 
claimant and other witnesses. Despite the statutory and regulatory 
obligation (38 U.S.C. Sec. 5107(b) and 38 C.F.R. Sec. 3.102) to give 
the veteran the benefit of the doubt in adjudicating a claim for 
benefits, in many of the Board decisions that have been set aside by 
the Court, the Veterans Law Judge has refused in his or her written 
decision to assess, no less credit, this lay testimony. The decisions 
of the Federal Circuit and the Court of Appeals for Veterans Claims in 
Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), and 
Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005) chronicle this 
refusal to analyze the validity of lay testimony.
    Sometimes the lay testimony that the Board refuses to analyze 
involves what happened during the period of military service. The 
underlying philosophy in these Board's decisions appears to be: ``If 
the event is not specifically reflected in the existing service medical 
or personnel records, we don't need to assess the lay testimony''--no 
matter what lay testimony has been submitted.
    Sometimes this lay testimony involves the symptoms of disability 
that the veteran experienced following military service. Despite the 
legal obligation to consider lay evidence attesting to the fact that 
veteran continuously experienced symptoms of disability from the date 
of discharge to the present, the Board often denies the claim on the 
unlawful ground that the evidence in the record does not show that the 
veteran was continuously provided medical treatment for the disability, 
without assessing the lay evidence of continuity of symptomatology.
    Another common Board error is to prematurely deny the claim without 
ensuring that the record includes the evidence that the agency was 
required to obtain to fulfill its obligation to assist the claimant in 
developing the evidence necessary to substantiate the claim. The 
statutory duty placed by Congress on the VA to provide such assistance 
is a fundamental cornerstone of the nonadversarial pro-claimant 
adjudicatory process. Unfortunately, the Board often fails to honor 
this very important obligation.
  2. Board Management Does Not Take Remedial Action When Veterans Law 
             Judges Continue to Make These Types of Errors
    One method of eliminating repetitive types of Board errors would be 
if Board management took remedial action when Veterans Law Judges 
repeatedly violate deeply embedded legal principles. This has not been 
done.
    The problem is not that Board management fails to assess the 
performance of the Board's Veterans Law Judges. Board management does 
conduct such assessments. The problem lies in Board management's 
definition of poor performance. As the Chairman of the Board stated in 
his FY2006-FY2008 Reports, Board management annually assesses the 
accuracy rate of Board decisionmaking--a rate which ``quantifies those 
substantive deficiencies that would be expected to result in a reversal 
or a remand by the CAVC.'' Over the last three fiscal years, the 
Chairman reports that the Board's accuracy rate was 93 percent, 93.8 
percent, and 94.8 percent, respectively.
    There obviously is a major disconnect between the annual report 
card prepared by the Court of Appeals for Veterans Claims and the 
annual report card prepared by Board management.\1\ How can it be that 
year in and year out the Court consistently concludes that well over 50 
percent of the Board decisions contain one or more specific legal 
errors that prejudiced the rights of the VA claimant to a proper 
decision, while at the same time Board management concludes that only 
6-7 percent of the Board's decisions are inaccurate? It appears that by 
using a skewed definition of what constitutes poor performance, Board 
management actually promotes, rather than discourages, these errors of 
law.
---------------------------------------------------------------------------
    \1\ Because the only BVA decisions that the Court assesses are 
those appealed to the Court by a VA claimant, the decisions the Court 
reviews are self-selected by VA claimants. They do not represent a true 
random sample of BVA decisionmaking. Thus, it does not necessarily 
follow that the Board's overall error rate is 77.7 percent. On the 
other hand, the Court's report cards undoubtedly indicate that the 
Board's overall error rate is quite high. In NVLSP's experience, many 
of the BVA decisions that are not appealed to the Court contain the 
same types of errors as those contained in the decisions that are 
appealed to the Court. Some veterans do not appeal these flawed 
decisions because after years of pursuing their claim, they simply give 
up.
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                        NVLSP's Recommendations

Recommendation 1: Adopt the Long-Standing Process Used and the 
Protections Afforded to Administrative Judges Who Adjudicate Disputes 
in Other Federal Agencies.

    NVLSP believes that one of the major steps that Congress should 
take to reform the Board and significantly improve its performance is 
to change the methodology used to select the individuals who adjudicate 
appeals at the Board of Veterans' Appeals. These individuals, called 
Veterans Law Judges (VLJs), are usually long-time VA employees who are 
promoted to this office from within the agency. By the time they become 
a VLJ, they often have adopted the conventional adjudicatory philosophy 
that has long held sway at the VA--an adjudicatory philosophy that 
underlies the failing grade assigned by the Court. Moreover, Veterans 
Law Judges do not enjoy true judicial independence.
    In the Federal administrative judicial system outside the BVA, most 
judges are administrative law judge (ALJs). An ALJ, like a VLJ, 
presides at an administrative trial-type proceeding to resolve a 
dispute between a Federal Government agency and someone affected by a 
decision of that agency. ALJs preside in multi-party adjudication as is 
the case with the Federal Energy Regulatory Commission or simplified 
and less formal procedures as is the case with the Social Security 
Administration.
    The major difference between Federal ALJs and the VLJs that serve 
on the Board of Veterans' Appeals is that ALJs are appointed under the 
Administrative Procedure Act 1946 (APA). Their appointments are merit-
based on scores achieved in a comprehensive testing procedure, 
including an 4-hour written examination and an oral examination before 
a panel that includes an OPM representative, American Bar Association 
representative, and a sitting Federal ALJ. Federal ALJs are the only 
merit-based judicial corps in the United States.
    ALJs retain decisional independence. They are exempt from 
performance ratings, evaluation, and bonuses. Agency officials may not 
interfere with their decisionmaking and administrative law judges may 
be discharged only for good cause based upon a complaint filed by the 
agency with the Merit Systems Protections Board established and 
determined after an APA hearing on the record before an MSPB ALJ. See 
Butz v. Economou, 438 U.S. 478, 514 (1978).
    There are many attorneys who have never been employed by the VA who 
are familiar with veterans benefits law and who are eminently qualified 
to serve as an administrative judge at the Board of Veterans' appeals. 
Moreover, while use of the ALJ process may not always result in the 
selection of an individual with a great deal of experience in veterans 
benefits law, it should not take a great deal of time for someone 
without such experience to become proficient. The experience of the 
many judges who have been appointed to the Court of Appeals for 
Veterans Claims without prior experience in veterans benefits law 
attests to this proposition. NVLSP believes the likelihood of improved 
long-term performance of a judge selected through the ALJ process 
greatly exceeds whatever loss in short-term productivity may result if 
someone who is not steeped in veterans benefits law happens to be 
selected.

Recommendation 2: The Criteria Used in, and the Results of the 
Evaluation System of VLJs Employed by Board Management Should Be 
Publicly Available and Reported to Congress.

    This recommendation may not be necessary if Congress adopts the 
first recommendation. But if Congress does not embrace the ALJ system 
for the BVA, it should at least require Board management to make 
publicly available the details of the system it employs for evaluating 
and rewarding the performance of VLJs and the results of the evaluation 
as applied to individual VLJs. When the evaluation system employed by 
Board management results in the conclusion that 93-94 percent of all 
Board decisions are accurate, it is plain that the evaluation system 
suffers from serious defects. Oversight of this system requires that it 
be made publicly available and reported to Congress.
           Contributor #2 to the Hamster Wheel: Best and Mahl
    In Best and Mahl, the Court of Appeals for Veterans Claims held 
that when it concludes that an error in a Board of Veterans' Appeals 
decision requires a remand, the Court generally will not address other 
alleged errors raised by the veteran. The CAVC agreed that it had the 
power to resolve the other allegations of error, but announced that as 
a matter of policy, the Court would ``generally decide cases on the 
narrowest possible grounds.''
    The following typical scenario illustrates how the piecemeal 
adjudication policy adopted by the CAVC in Best and Mahl contributes to 
the Hamster Wheel phenomenon:

      after prosecuting a VA claim for benefits for 3\1/2\ 
years, the veteran receives a decision from the Board of Veterans' 
Appeals denying his claim;
      the veteran appeals the Board's decision within 120 days 
to the CAVC, and files a legal brief contending that the Board made a 
number of different legal errors in denying the claim. In response, the 
VA files a legal brief arguing that each of the VA actions about which 
the veteran complains are perfectly legal;
      then, 4\1/2\ years after the claim was filed, the Central 
Legal Staff of the Court completes a screening memorandum and sends the 
appeal to a single judge of the CAVC. Five years after the claim was 
filed, the single judge issues a decision resolving only one of the 
many different alleged errors briefed by the parties. The single judge 
issues a written decision that states that: (a) the Board erred in one 
of the respects discussed in the veteran's legal briefs; (b) the 
Board's decision is vacated and remanded for the Board to correct the 
one error and issue a new decision; (c) there is no need for the Court 
to resolve the other alleged legal errors that have been fully briefed 
by the parties because the veteran can continue to raise these alleged 
errors before the VA on remand;
      on remand, the Board ensures that the one legal error 
identified by the CAVC is corrected, perhaps after a further remand to 
the regional office. But not surprisingly, the Board does not change 
the position it previously took and rejects for a second time the 
allegations of Board error that the CAVC refused to resolve when the 
case was before the CAVC. Six years after the claim was filed, the 
Board denies the claim again;
      120 days after the new Board denial, the veteran appeals 
the Board's new decision to the CAVC, raising the same unresolved legal 
errors he previously briefed to the CAVC;
      the Hamster Wheel keeps churning . . .

    The piecemeal adjudication policy adopted in Best and Mahl may 
benefit the Court in the short term. By resolving only one of the 
issues briefed by the parties, a judge can finish an appeal in less 
time than would be required if he or she had to resolve all of the 
other disputed issues, thereby allowing the judge to turn his or her 
attention at an earlier time to other appeals. But the policy is 
myopic. Both disabled veterans and the VA are seriously harmed by how 
Best and Mahl contribute to the Hamster Wheel. Moreover, the CAVC may 
not be saving time in the long run. Each time a veteran appeals a case 
that was previously remanded by the CAVC due to Best and Mahl, the 
Central Legal Staff and at least one judge of the Court will have to 
duplicate the time they expended on the case the first time around by 
taking the time to analyze the case for a second time. Congress should 
amend Chapter 72 of Title 38 to correct this obstacle to justice.
                  Contributor #3 to the Hamster Wheel:
    the Court's Reluctance to Reverse Erroneous BVA Findings of Fact
    Over the years, NVLSP has reviewed many Board decisions in which 
the evidence on a critical point is in conflict. The Board is obligated 
to weigh the conflicting evidence and make a finding of fact that 
resolves all reasonable doubt in favor of the veteran. In some of these 
cases, the Board's decision resolves the factual issue against the 
veteran even though the evidence favorable to the veteran appears to 
strongly outweigh the unfavorable evidence.
    If such a Board decision is appealed to the CAVC, Congress has 
authorized the Court to decide if the Board's weighing of the evidence 
was ``clearly erroneous.'' But the Court interprets the phrase 
``clearly erroneous'' very narrowly. The Court will reverse the Board's 
finding on the ground that it is ``clearly erroneous'' and order the VA 
to grant benefits in only the most extreme of circumstances. As the 
CAVC stated in one of its precedential decisions: ``[t]o be clearly 
erroneous, a decision must strike us as more than just maybe or 
probably wrong; it must . . . strike us as wrong with the force of a 5-
week-old, unrefrigerated dead fish. . . . To be clearly erroneous, 
then, the [decision being appealed] must be dead wrong. . . .'' Booton 
v. Brown, 8 Vet.App. 368, 372 (1995) (quoting Parts & Electric Motors, 
Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
    The net result of the Court's extreme deference to the findings of 
fact made by the Board is that even if it believes the Board's weighing 
of evidence is wrong, it will not reverse the Board's finding and order 
the grant of benefits; instead, it will typically vacate the Board 
decision and remand the case for a better explanation from the Board as 
to why it decided what it did--thereby placing the veteran on the 
Hamster Wheel once again. Congress should amend the Court's scope of 
review of Board findings of fact in order to correct this problem.
C. Injustice and Inefficiency Due to the Lack of Class Action Authority
    Another reason for the longstanding delays and inefficiency in the 
VA adjudication system derives from the fact that Federal courts do not 
currently have clear authority to certify a veteran's lawsuit as a 
class action. When Congress enacted the Veterans' Judicial Review Act 
(VJRA) in 1988, it inadvertently erected a significant roadblock to 
justice. Prior to the VJRA, U.S. district courts had authority to 
certify a lawsuit challenging a VA rule or policy as a class action on 
behalf of a large group of similarly situated veterans. See, e.g., 
Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 
1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F. Supp. 34 
(D.P.R. 1993). If the district court held that the challenged rule or 
policy was unlawful, it had the power to ensure that all similarly 
situated veterans benefited from the court's decision.
    But the ability of a veteran or veterans organization to file a 
class action ended with the VJRA. In that landmark legislation, 
Congress transferred jurisdiction over challenges to VA rules and 
policies from U.S. district courts (which operate under rules 
authorizing class actions) to the U.S. Court of Appeals for the Federal 
Circuit and the newly created U.S. Court of Appeals for Veterans Claims 
(CAVC). In making this transfer of jurisdiction, Congress failed to 
address clearly the authority of the CAVC and the Federal Circuit to 
certify a case as a class action. As a result of this oversight, the 
CAVC has ruled that it does not have authority to entertain a class 
action (see Lefkowitz v. Derwinski, 1 Vet.App. 439 (1991)), and the 
Federal Circuit has indicated the same. See Liesegang v. Secretary of 
Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002).
    As we illustrate below, the benefit of class actions in litigation 
against the government is that they conserve the resources of the 
government and the courts and help ensure that the government treats 
all similarly situated individuals in the same way.
    Class actions are typically used to resolve efficiently a legal 
issue that affects a large number of similarly situated individuals. 
There are literally hundreds of individual VA rules and policies that 
affect the entitlement to VA benefits for a large number of VA 
claimants. From time to time, a VA claimant will file an appeal at the 
CAVC or the Federal Circuit that challenges the legality of one of 
these rules or policies. For example, a few of the Vietnam veterans who 
served off the coast of Vietnam appealed their claims all the way to 
the CAVC to challenge the VA rule limiting the statutory presumption of 
Agent Orange exposure to only those who set foot on the land mass of 
Vietnam. Another veteran filed suit at the CAVC to challenge the 2007 
VA policy requiring the Compensation & Pension Service to conduct a 
clandestine review (i.e., without notice to the claimant) of all RO 
decisions granting a large amount of benefits (but not RO decisions 
denying a large amount of benefits) and requiring the ROs to amend 
their decisions if a Compensation & Pension Service official (before 
whom the claimant had no right to appear) disagreed with the RO 
decision granting benefits.
    Without the benefit of a class action, each veteran adversely 
affected by the challenged rule or policy must individually take steps 
like filing a timely notice of disagreement, VA Form 9, and notice of 
appeal to the CAVC in order to keep their claim alive until a Federal 
court issues a final decision on the legality of the VA rule or policy. 
Each of these actions requires the VA or the CAVC to expend substantial 
resources to process and readjudicate the claims. This piecemeal 
adjudication of claims unnecessarily consumes the resources of the 
government, the courts, the veterans, and their representatives.
    With a class action, however, the court that has jurisdiction over 
the challenge to a VA rule or policy could certify the case as a class 
action and order a moratorium on all VA and judicial adjudication of 
the claims of similarly situated veterans. Then, after the court's 
decision becomes final, the court would have authority to end the 
moratorium and ensure that all similarly situated veterans are granted 
the relief, if any, obtained by the veteran who filed the lawsuit. The 
end result is that thousands of VA and judicial work hours are saved.
    In addition, without the benefit of a class action, many similarly 
situated VA claimants will never receive the benefits obtained by the 
veteran who appealed to the CAVC or the Federal Circuit, if the veteran 
is ultimately successful in convincing the court that the VA rule or 
policy is illegal. That is because by the time the court issues a final 
decision, many similarly situated VA claimants will have already given 
up. They will not have filed a timely notice of disagreement, VA Form 
9, or notice of appeal to the CAVC. In other words, the VA denial of 
their claim would have become final before the court issued its final 
decision. And unless the courts are provided class action authority, no 
law requires the VA to reopen the finally decided cases of similarly 
situated veterans for the purpose of granting them the benefits that 
the successful litigant ultimately obtained as a result of the court's 
final decision.
    Congress should enact legislative to provide the CAVC and Federal 
Circuit with class action authority in order to conserve the limited 
resources of the VA and the courts, and to ensure that similarly 
situated veterans receive the VA benefits to which they are entitled.
    That completes my testimony. I would be pleased to answer any 
questions the Members of the Subcommittee may have.

                                 
               Prepared Statement of Richard Paul Cohen,
 Executive Director, National Organization of Veterans' Advocates, Inc.
    MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:
    Thank you for the opportunity to present the views of the National 
Organization of Veterans' Advocates, Inc. (``NOVA'') concerning the 
topic entitled ``Examining Appellate Processes and their Impact on 
Veterans.'' NOVA also testified, on February 11, 2009, before the 
Senate Committee on Veterans' Affairs, on the problems in the VA claim 
adjudication process.
    NOVA is a not-for-profit Sec. 501(c)(6) educational and membership 
organization incorporated in 1993. NOVA is dedicated to training and 
assisting attorneys and non-attorney practitioners who are accredited 
by the Department of Veterans Affairs (``VA'') to represent veterans, 
surviving spouses, and dependents before the VA and who are admitted to 
practice before the United States Court of Appeals for Veterans Claims 
(``CAVC'') and the United States Court of Appeals for the Federal 
Circuit.
    Because of space constraints, the concerns and suggestions in this 
written testimony represent some but not all of NOVA's observations and 
suggestions. This testimony has been approved by NOVA's Board of 
Directors, and represents the shared experiences of NOVA's members, as 
well as my own experience in representing veterans for the past 16 
years.
  A. Overview of the Department of Veterans Affairs (``VA'') Appeals 
                                Process
1. The Entire Process is Affected by Regional Office (``RO'') 
        Functioning
    The foundation of the VA's benefits system is a ``strongly and 
uniquely pro-claimant'' and ``non-adversarial'' approach to deciding 
claims.\1\ Accordingly, the VA, the veteran, and the veteran's 
representative are all meant to share the same goal: making sure 
veterans and their dependents receive the VA benefits to which they are 
entitled. Cognizant of this shared goal, it is important to remember 
that these adjudicatory bodies--the 57 VA Regional Offices (``RO''), 
the Board of Veterans' Appeals (``BVA''), and the U.S. Court of Appeals 
for Veterans Claims (``CAVC'')--do not exist in a vacuum. CAVC 
functioning is dependent upon the quality of BVA's decisionmaking. 
Similarly, the BVA's decisionmaking efficiency and quality are directly 
related to the RO's claim development and quality of adjudication.
---------------------------------------------------------------------------
    \1\ Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
---------------------------------------------------------------------------
    All veterans' claims are initially adjudicated at the RO level. 
From the moment the veteran files a notice of disagreement (``NOD'') in 
response to an adverse rating decision, unacceptable delays ensue. As 
noted in BVA's 2008 Annual Report, it takes the VA an average of 218 
days to issue a Statement of the Case (``SOC'') in response to a 
veteran's NOD.\2\ If the veteran disagrees with the SOC, the veteran 
can continue the appeal to the BVA, and wait untrained in and unaware 
of CAVC jurisprudence, and the low quality of their decisions reflects 
this ignorance. In addition, some of the Decision Review Officers 
(``DROs''), who serve as the first line of appeal adjudicators at the 
ROs, ignore their duty [as set forth in the VA Adjudication Procedures 
Manual, M21-MR, Part 1, Chapter 5, section C, pp. 5-C-3, 5-C-15] to 
hold informal conferences, which are intended to operate as an 
important time-saving opportunity to narrow issues and resolve appeals.
---------------------------------------------------------------------------
    \2\ Department of Veterans Affairs FY 2008 Performance and 
Accountability Report, p.119 located at http://www.va.gov/budget/
report/2008/index.htm and Report of the Chairman, Board of Veterans' 
Appeals, Fiscal Year 2008, p.19, average elapsed time from NOD receipt 
until issuance of SOC.
---------------------------------------------------------------------------
    Despite the unreasonable time VA currently takes to adjudicate 
claims at the RO level, the vast majority of appeals arrive at the BVA 
inadequately developed and/or improperly decided. In 2008, 37 percent 
were remanded by BVA to the RO for re-adjudication. The quality of BVA 
decisionmaking is still poor, and the numbers BVA provides concerning 
the quality of its decisions are misleading at best. A much more 
accurate assessment of the quality of BVA's work can be ascertained by 
analyzing the statistics maintained by the CAVC. These numbers show 
only 20 percent of BVA's denials are affirmed, and 60 percent are 
remanded or reversed due to BVA errors.\3\
---------------------------------------------------------------------------
    \3\ See CAVC Annual Report, FY 2008, subtracting CAVC's 
extraordinary relief decisions from total merits decisions and dividing 
that sum into the decisions affirmed results in a 20 percent affirmance 
rate as contrasted with an over 60 percent remand or reverse rate for 
BVA errors. The remainder are affirmed in part, and/or reversed/
vacated/remanded in part. Also see, BVA report for the period 10/01/
2007 to 8/26/2008 showing 604 CAVC affirmances out of 3106 appeals.
---------------------------------------------------------------------------
2. Although RO Problems are Compounded at BVA Level, BVA Serves a 
        Useful Purpose
    Delays and poor decisionmaking aside, BVA's role is useful and 
important to the functioning of the Veterans Benefits Administration 
(``VBA'') in two key respects. First, by statute, 38 U.S.C. 
Sec. 7104(a), BVA provides a unique opportunity for a de novo review of 
an appealed claim ``based on the entire record in the proceeding and 
upon consideration of all evidence and material of record and 
applicable provisions of law and regulation.'' Additionally, because 
BVA is the highest appellate body within the VA, it acts as a buffer 
between the 57 ROs and the CAVC. Thus, without the BVA's intermediary 
role in reviewing and re-adjudicating errors prior to court appeals, 
the CAVC could feasibly face a 1,000-percent increase in its caseload 
from a little over 4,000 newly filed appeals each year to over 
40,000.\4\
---------------------------------------------------------------------------
    \4\ CAVC Annual Report, FY 2008, at www.vetapp.uscourts.gov/
documents/Annual_Report_-_2008.pdf; Report of the Chairman, Board of 
Veterans' Appeals, FY 2008, p.18; cases received at BVA at www.va.gov/
Vetapp/ChairRpt/BVA2008AR.pdf.
---------------------------------------------------------------------------
3. Some of CAVC's Delays Are Caused by Its Failure to Decide All Issues 
        Raised
    The CAVC is one of the busiest Federal appellate courts with an 
incredibly challenging caseload, as evidenced by the more than 6,000 
cases inventoried in 2007.\5\ In 2008, because of the continuous filing 
of over 4,000 new appeals, it took, on average, 446 days from the 
initial filing to the ultimate disposition of the appeal.\6\
---------------------------------------------------------------------------
    \5\ Chief Judge William P. Greene Testimony to Senate Committee on 
Veterans' Affairs, pp.1-2 (11/7/07).
    \6\ See footnote 5.
---------------------------------------------------------------------------
    NOVA's members can attest to the frustration of veterans whose 
dispositive statutory arguments have been ignored by a court decision 
focused solely upon the BVA failure to explain its decision adequately 
or focused upon the RO's failure to provide proper notification prior 
to issuing a rating decision. Not only does such a narrowly-constructed 
remand add more delays to both the CAVC's and the VA's caseloads, but 
it also ensures a second, third, and even fourth ``hamster-wheel'' of 
never-ending remands leaves all parties--the CAVC,\7\ the veteran's 
attorney, and most importantly, the veteran--wholly disgusted, 
dismayed, and disenchanted with the very process meant to assist 
disabled veterans.
---------------------------------------------------------------------------
    \7\ Blackwell v. Shinseki, No. 07-2948, decided April 20, 2009, 
unpublished slip opinion, p.4 ``the Court notes that it is extremely 
troubled by the length of time (10 years) and number of remands (four) 
involved in this case.''
---------------------------------------------------------------------------
4. The United States Court of Appeals for the Federal Circuit Provides 
        a Valuable Review Function and Helps Develop VA Law
    Contrary to some criticisms of the Federal Circuit's role, that 
appellate court has taken the lead in developing and enforcing 
veterans' law when the CAVC has declined to do so. An important example 
of development and enforcement includes the area of claim reopening 
where the Federal Circuit reversed a CAVC decision which adopted a 
standard imposing an excessive burden on veterans. Hodge, 155 F.3d at 
1483. An additional example concerns requests for total disability 
based on unemployability. The Federal Circuit held that the VA must 
consider total disability based on unemployability where a veteran 
submits a claim for benefits at the highest rating possible and where 
there is evidence of unemployability, even if the veteran had not 
specifically requested a finding of unemployability in his original 
claim. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The 
Federal Circuit also provides an essential function by reviewing CAVC 
decisions in a similar manner in which the CAVC reviews BVA decisions. 
A recent Federal Circuit decision which clarified the VA's duty to 
assist shows the importance of the Federal Circuit's role. Moore v. 
Shinseki, __ F.3d. __ (Fed. Cir. 2009), decided February 10, 2009.
               B. Specific Recommendations to Improve the
                   Timeliness and Quality of Appeals
     1.  Starting with the veteran's first contact with the VA, the 
system must be easy to use. Today, a veteran must complete a 16-page 
form (VA form 21-526) to apply for benefits. This could be condensed to 
a one-page document akin to the report-of-injury forms many States use 
in the workers' compensation system. The new claim form should also 
provide space for a treating doctor to certify that the present 
disability is likely related to active military service (another 
procedure similar to that utilized in the workers' compensation 
system).
     2.  Additionally, the system must be redesigned to allow ill and 
impaired veterans to file claims, participate in hearings, and review 
claim files without the need to travel long distances to participate in 
the adjudication of their claims. The present system consists of only 
57 Regional Offices nationwide. A user-friendly system would disperse 
most of the functions of the present Regional Offices to locations in 
or in close proximity to each VA Hospital and Vet Center, while 
centralized offices in each State would house the rating boards.
     3.  It is unlikely that the VA will be able to realize 
improvements in RO and BVA decisionmaking speed and accuracy without 
creating a system based on a true partnership between the VA, the 
claimant, and the claimant's representative. Congress should encourage 
this partnership by amending 38 U.S.C. Sec. 5103 to require the VA to 
provide meaningful, claim-specific, pre-adjudicatory notice of evidence 
needed to grant a veteran's claim. In addition, Congress should add 
teeth to this requirement by legislating that VA's failure to provide 
such notice or assistance is presumed to prejudice the veteran, unless 
the VA demonstrates by clear and convincing evidence that there was no 
prejudice to the veteran.
     4.  By the increased use of carefully-crafted presumptions, 
significant time could be saved in adjudicating claims and granting 
benefits. Congress should pass legislation to clarify and expand 38 
U.S.C. Sec. 1154(b) and to modify 38 U.S.C. Sec. 116(a)(1)(A). Section 
1154(b) should be amended to extend the combat veteran's presumption to 
all veterans who served on active duty in a theater of combat 
operations, as proposed by H.R. 952. Additionally, the presumption of 
service incurrence should be broadened to include a presumption of a 
medical nexus, thus eliminating this time-consuming requirement for 
combat veterans. Then, the rating board would be able to focus on the 
severity of the veteran's symptoms instead of getting bogged down in 
the questions of whether the combat veteran can provide details of an 
in-service combat-related stressor, and whether that stressor is 
related to the veteran's Posttraumatic Stress Disorder (``PTSD''). The 
presumption of exposure to Agent Orange in Section 116 should be 
expanded, as proposed by H.R. 2254, to include those who served in the 
territorial waters of Vietnam or were involved in flying in supplies, 
including herbicides.
     5.  In addition, Congress should amend the benefit-of-the-doubt 
rule in 38 U.S.C. Sec. 5107(b) to provide the veteran with a rule of 
liberality which would allow evidence favorable to the veteran to 
prevail unless there is clear and convincing evidence to the contrary. 
This would eliminate many adverse decisions based on VA's perception 
that a mere preponderance of the evidence is against the claim. Such a 
liberality rule would tend to ensure that meritorious claims are 
approved in much the same way that the rebuttable presumption of 
innocence in criminal cases tends to ensure that no innocent person is 
convicted of a crime.
     6.  For the VA benefits system to function well, the criteria for 
evaluating disabilities should be updated. With few exceptions, VA 
adjudicators currently apply the same Diagnostic Code criteria which 
have been in place since 1945. This archaic rating system is difficult 
for rating specialists to apply. Further, it is so outdated, it often 
does not comport with today's veteran's disabling medical condition or 
its effects on the veteran's ability to work or live. An overhaul of 
the entire Schedule for Rating Disabilities in 38 C.F.R. Part 4 is long 
overdue. Being mindful of the increasing number of veterans whose lives 
are a living hell because of residuals of PTSD or TBI, Congress should 
build on the foundation laid in Section 213 of The Veterans' Benefits 
Improvement Act of 2008 and should enact legislation to rewrite the 
Schedule for Rating Disabilities to compensate veterans for loss of 
quality of life, in addition to loss of earning capacity.
     7.  Veterans must be granted the same rights of representation 
granted to all citizens. Veterans are still the only class of citizens 
in this country who do not have the option to hire a lawyer for 
assistance from the very beginning of the claim adjudication process, 
the filing of a claim. Moreover, those who represent veterans should 
not be looked upon as having interests opposed to the VA's central 
mission of providing proper benefits to veterans and their families. It 
therefore follows that the RO's decision unit should partner with the 
claimant's representative and use informal conferences to speed claim 
development and to narrow the issues to be decided.
     8.  Congress should amend 38 U.S.C. Sec. 7105 to provide that the 
veteran must file only one request for appeal. Presently, veterans are 
first required to file a notice of disagreement followed by an appeal 
to BVA. It saves time to transfer the appeal directly to BVA, without 
further pleadings, unless the veteran requests a conference, hearing, 
or review by a Decision Review Officer at the RO.
     9.  To ensure efficient, convenient, timely, and proper appellate 
review at the administrative level, BVA should be made independent from 
the VBA. It should function as a separate Board of Appeals with 
independent Federal Administrative Law Judges who are housed in 
dedicated hearing offices throughout each State, thus making it easier 
for veterans to have timely in-person hearings. These Veterans Law 
Judges should be reconfigured into a corps of truly independent and 
well trained Federal Administrative Law Judges.
    10.  NOVA's experience confirms the findings in the 2005 report of 
the Office of Inspector General that the present work credit system is 
providing a disincentive to properly decide claims. Section 226 of The 
Veterans' Benefits Improvement Act of 2008 is a testament to Congress' 
realization that the system should be replaced. At present, the VA's 
work credit system incentivizes VA adjudicators at the RO to issue 
unnecessary letters and/or deny claims, and Board members to deny or 
remand claims. This is so because these actions (denials, remands, and 
VA form letters) take less time and require no supervisory approval, 
thus allowing the VA employee to receive work credit faster, and more 
total work credits. In contrast, to grant a veteran's claim requires 
more work and more time, and supervisory approval. Revising the VA's 
work credit system to remove these disincentives is integral to the 
overall improvement of the VBA's appeals process. In addition, it is 
essential that VA employees be repeatedly and adequately trained and 
supervised.
    11.  Appeals from the Board should go to the CAVC and then to the 
Federal Circuit. Two changes to the operation of the CAVC would help 
veterans significantly. First, Congress should amend 38 U.S.C. 
Sec. 7252 to grant the CAVC class action jurisdiction to remedy 
situations which affect a broad class of veterans. Second, Section 7252 
should be amended to require the CAVC to resolve all issues which have 
been reasonably raised on appeal. Constitutional claims would be 
exempted if the appeals could be resolved without reaching the 
constitutional claim.

                                 
          Prepared Statement of Hon. James P. Terry, Chairman,
    Board of Veterans' Appeals, U.S. Department of Veterans Affairs
    Good morning, Chairman Hall, Ranking Member Lamborn, and Members of 
the Subcommittee. It is a pleasure to be here today on behalf of the 
Board of Veterans' Appeals (Board) to provide information to you and 
the Members of the Committee on the important issues outlined in your 
April 29th letter of invitation. Those major subject areas include the 
issues surrounding the Department of Veterans Affairs (VA) appellate 
processes as well as that of the Court of Appeals for Veterans' Claims 
(CAVC or Court), the efficiency and effectiveness of these processes, 
as well as how they impact appeals outcomes for Veterans.
    Turning to the first area, in our continuing attempt to improve the 
appellate process, we have worked to develop and implement several 
targeted approaches. These include increased staffing, improved 
training, enhanced performance goals, and effective communication. Key 
to meeting our staffing needs has been the critical assistance provided 
by Congress and the Administration through additional funding for staff 
hiring over the past 3 years, which has greatly enhanced the Board's 
productivity. This authorization has not only enabled the growth of our 
attorney staff, but has led to a commensurate increase in the 
professionalism of our administrative staff. In order to help new staff 
achieve their full potential, the Board has a comprehensive training 
program. Each new attorney is mentored by one of the Board's many 
experienced attorneys, and substantive legal, medical, and decision-
writing training is thus provided for all attorneys in critical areas 
related to appeals adjudication. Along with training, the Board's 
performance goals further enhance our efficiency in decisionmaking. 
Each of our Veterans Law Judges and attorneys are expected to meet 
specific minimum standards of production and quality each year, and 
many usually far exceed these goals.
    The Board continues to experience improved productivity from our 
attorneys and judges, and, in this Fiscal Year, we expect to issue more 
than the 43,757 decisions we issued last year, which was more than 
3,000 beyond the number of cases received and made a significant dent 
in the case backlog. We take advantage of every communication 
opportunity to reach out to those who share our responsibility to 
deliver speedy and accurate appellate decisions to our Veterans' 
community. We have worked with your staff to clarify through 
legislation, such as that passed last October, the best approach to 
notifying Veterans of the information and evidence that is expected of 
them to help substantiate their claims. We are working with the 
Regional Offices (ROs) through our Travel Board trips and 
videoconferencing to assist in the training of rating specialists and 
Decision Review Officers. We have regular meetings with other VA staff 
for purposes of sharing ideas on how to mitigate delays in the 
processing of claims and appeals.
    The Board has fully supported VA's goal of increasing the use of 
paperless claims and appeals processing, and in Fiscal Year 2008 
completed its first paperless appeal. As VA expands the paperless 
processing of Benefit Delivery at Discharge (BDD) claims, the Board is 
actively preparing to provide timely service to these claims if they 
mature into appeals. We are planning to train additional judges and 
attorneys to handle paperless appeals. In addition, the Board supports 
the administration's development of a Joint Virtual Lifetime Electronic 
Record, which will also speed claims processing with more timely and 
complete access to Veterans' medical records.
    In addressing the effectiveness and the efficiency of the Board's 
appeals process,we must remember that the system of adjudicating claims 
and appeals is designed to give the benefit of the doubt to all 
Veterans. This means that times allocated for submission of documents 
and moving to the next step in the claims and appeals process are 
elongated for the benefit of the Veteran. As a consequence of recent 
changes in the law that provide for increased opportunities for 
attorney representation at the Regional Office level, the time may be 
right for shortening certain statutory and regulatory response periods 
for purposes of expediting the processing of claims and appeals without 
taking away rights or protections from Veterans. This is at the heart 
of the Expedited Claims Adjudication Initiative (ECA), which I will 
address in a moment.
    Another change the Subcommittee may want to consider is allowing 
the Board to determine whether a video-conference hearing vice an in-
person Travel Board hearing could expedite resolution of Veterans' 
appeals in appropriate circumstances. The success rate for Veterans who 
choose video-conference hearings is exactly the same as those who 
choose an in-person hearing before the Board. Changing the law to allow 
the Board to determine which hearing method would be most expeditious, 
subject to an exception for good cause shown, would greatly enhance the 
use of the Board's resources and expedite the processing of appeals 
without affecting veterans' rights. More importantly, this change would 
benefit veterans who live in areas of the country where the volume of 
hearing requests does not warrant Board travel to a Regional Office to 
conduct hearings more than once or twice a year by enabling them to 
receive much more timely hearings. For the Board, not only could travel 
expenses be reduced, but Veterans Law Judges would also be able to 
continue deciding other appeals when not conducting hearings, unlike 
when they are away from the office on ``Travel Boards.''
    In responding to your query concerning our views on the appeals 
process at the CAVC, the volume of cases before each body is 
instructive. For example, the Board received more than 39,000 cases in 
2008 and decided 43,757, making a significant dent in its backlog. The 
Court received 4,128 new cases in 2008, and decided 4,446, again making 
a significant impact on its backlog. Like the Department, the Court has 
been aided by the Committee's support for additional resources. 
Further, we believe that the Court can serve veterans by eliminating 
avoidable remands by taking due account of the rule of prejudicial 
error contained in 38 U.S.C. Sec. 7261(b). This should be greatly 
assisted by the Supreme Court's decision in the Simmons and Sanders 
cases on that subject decided in April 2009.
    As to material factual findings made by the Board, appropriate 
consideration should be given to the deferential clearly erroneous 
standard of review contained in 38 U.S.C. Sec. 7261(a)(4), (c). While 
the Board is obligated, pursuant to 38 U.S.C. Sec. 7104(d), to provide 
reasons or bases in support of all material findings of fact and 
conclusions of law in its decisions, the Court is not permitted to 
substitute its judgment for that of the Board as long as there is a 
``plausible'' basis in the record for such factual determinations, even 
if the Court might not have reached the same factual determinations. 
This deferential standard of review ensures that the responsibility for 
making the highly technical factual determinations required in 
adjudicating complex disability compensation cases is not switched from 
the statutorily appointed fact-finder to a non-expert judicial body. 
When this standard of review is not properly applied, cases may be 
unnecessarily remanded for further amplification of the reasons and 
bases in support of the same decision previously reached.
    Finally, I would like to update you on the Expedited Claims 
Adjudication Initiative (ECA). This initiative, published as a final 
rule in the Federal Register in November 2008, is a 2 year pilot 
program that began on February 2, 2009. The program offers accelerated 
claims and appeals processing for eligible claimants at four select VA 
Regional Offices: Nashville, Seattle, Lincoln, and Philadelphia. The 
goal of the initiative is to determine whether VA can expedite the 
claims and appeals process by obtaining waivers from claimants and 
their representatives of the generally unused portions of certain 
statutory and regulatory response periods, and by pre-screening cases 
at the Board to determine the adequacy of the record for appellate 
review.
    Participation in this initiative is strictly voluntary, and open to 
claimants in the jurisdiction of one of the four trial sites who are 
represented by a recognized Veterans Service Organization, attorney or 
agent at the time of electing to participate in the initiative. A 
claimant's decision to participate in the ECA can be withdrawn at any 
time, with no penalty, and if a claimant decides to withdraw, the case 
will continue to be processed by the Regional Office under normal 
procedures. We believe the ECA will serve as an excellent model for a 
systemwide expedited claims adjudication process after the trial period 
has concluded.
    Thank you for listening this morning and I would be happy to answer 
any questions that you, Chairman Hall, Mr. Lamborn, or the Members, may 
have.

                                 
         Prepared Statement of Ronald S. Burke, Jr., Director,
      Appeals Management Center, Veterans Benefits Administration,
                  U.S. Department of Veterans Affairs
    Chairman Hall and Members of the Subcommittee:
    It is an honor to appear before you today to discuss the operations 
of the Veterans Benefits Administration (VBA) Appeals Management Center 
(AMC).
    My statement today will focus on the status of the workload at the 
AMC and my plan for continued improvements in appellate remand 
processing at this facility.
    The AMC's mission is to process remands from the Board of Veterans' 
Appeals (BVA) timely and accurately. The AMC has complete authority to 
develop remands, make decisions based on evidence gathered, and 
authorize the payment of benefits. When the AMC is unable to grant an 
appeal in full, it is re-certified to BVA for continuation of the 
appellate process.
    I was detailed to the position of Director of the AMC in December 
2008 and permanently appointed in February 2009. Prior to this 
appointment, I served as the Veterans Service Center Manager at the 
Winston-Salem Regional Office (RO), one of VBA's largest compensation 
and pension divisions, and the Baltimore RO. Before joining VA, I was a 
Veterans Service Officer for an accredited Veterans Service 
Organization.
    Since my appointment as Director, I have worked closely with AMC 
staff and VBA leadership to establish monthly performance goals and 
ensure increased accountability for AMC employees through monthly 
performance reviews. Additionally, I have reallocated staffing 
resources to improve the efficiency of AMC's evidence-gathering, 
decisionmaking, and award-processing functions. These efforts have 
resulted in increased output of completed decisions, including complete 
grants of benefits sought on appeal, partial grants of benefits sought 
on appeal, and appeals re-certified to BVA.
    During the first quarter of FY 2009, the AMC averaged 902 completed 
appeals each month. Average monthly output increased to 1,404 completed 
appeals during the second quarter, which represents an increase of 55.7 
percent. During the month of March 2009, AMC completed a record 1,695 
remanded appeals.
    The AMC currently manages an inventory of 21,428 (end of April 
2009) appellate claims remanded from BVA. This is a decrease of 750 
pending remands since the end of December 2008. I worked with AMC staff 
to develop a workload management plan to improve the timeliness of 
decisions and better manage AMC's remand inventory. This plan outlines 
workflow and processes, to include specific actions performed by each 
team, in order to improve remand processing.
    Our goal is to focus on the oldest pending remanded appeals to 
deliver decisions or re-certify appeals to BVA for those veterans who 
have been waiting the longest period of time for a decision. As a 
result of this emphasis, AMC's ``average days to complete'' has risen 
from 461 days at the end of FY 2008 to 567 days at the end of April 
2009. This change is indicative of our emphasis on processing the 
oldest pending remands. I anticipate that as the oldest workload is 
completed, the ``average days to complete'' will show significant 
improvement toward the end of FY 2009 and into FY 2010.
    Since arriving at the AMC, I have aggressively recruited and hired 
new claims processing employees. Ten full-time employees have been 
added since late December 2008, increasing the AMC's staffing level 
from 114 to 124 employees. Recently, I was authorized to hire an 
additional 15 employees under the American Recovery and Reinvestment 
Act (ARRA). We are actively recruiting to fill these positions and 
expect these employees to be on board by the end of May 2009. We plan 
to utilize some of these new employees to expand telephone contact with 
veterans and claimants to expedite many of our development actions.
    To further improve timeliness and reduce the number of pending 
remands, the AMC receives brokering assistance from the Huntington, 
Nashville, and Seattle ROs. This includes assistance in both evidence-
gathering and rating. These ROs are providing short-term assistance. As 
the AMC's productive capacity continues to improve, I hope to reduce 
the level of brokering assistance needed during FY 2010.
    We continue to work diligently with Chairman Terry and his staff at 
the Board of Veterans' Appeals to increase and improve communications 
between the two facilities. Frequent telephone conversations and face-
to-face meetings have been beneficial and will continue to be a pivotal 
element in improving the appellate workload. The AMC also benefits from 
healthy and effective working relationships with many of the Veterans 
Service Organizations (VSOs). The VSOs work directly with our 
decisionmakers and help reduce administrative waiting time, thus 
reducing unnecessary delays in claims processing.
    In the past 4 months, the AMC has seen a reduction in the number of 
remands pending and an increase in the number of remands completed 
monthly. Since assuming leadership of the AMC in February 2009, I have 
witnessed incremental improvements in processing. However, there 
remains much room for future improvements.
    In closing, VBA has made a concentrated effort to improve appellate 
processing and focus on the remand workload by establishing a 
centralized processing center that establishes a core expertise in this 
area. The AMC is dedicated to timely and accurately collecting all 
evidence directed by BVA. Over the next year, I anticipate continued 
improvements.
    Mr. Chairman, this concludes my statement. I will be happy to 
respond to any questions that you or other Members of the Subcommittee 
might have.
                   MATERIAL SUBMITTED FOR THE RECORD
                                     Committee on Veterans' Affairs
         Subcommittee on Disability Assistance and Memorial Affairs
                                                    Washington, DC.
                                                      June 19, 2009

Ronald S. Burke
Director, Appeals Management Center
Veterans Benefit Administration
U.S. Department of Veterans Affairs
810 Vermont Ave., NW
Washington, DC 20420

Dear Mr. Burke:

    Thank you for testifying at the House Committee on Veterans' 
Affairs' Subcommittee on Disability Assistance and Memorial Affairs 
hearing on ``Examining Appellate Processes and their Impact on 
Veterans,'' held on May 14, 2009. I would greatly appreciate if you 
would provide answers to the enclosed followup hearing questions by 
Monday, July 20, 2009.
    In an effort to reduce printing costs, the Committee on Veterans' 
Affairs, in cooperation with the Joint Committee on Printing, is 
implementing some formatting changes for material for all Full 
Committee and Subcommittee hearings. Therefore, it would be appreciated 
if you could provide your answers consecutively on letter size paper, 
single-spaced. In addition, please restate the question in its entirety 
before the answer.
    Due to the delay in receiving mail, please provide your response to 
Ms. Megan Williams by fax at (202) 225-2034. If you have any questions, 
please call (202) 225-3608.

            Sincerely,

                                                       John J. Hall
                                                           Chairman
                               __________
                        Questions for the Record
                  The Honorable John J. Hall, Chairman
            Subcommittee on Disability and Memorial Affairs
                  House Committee on Veterans' Affairs
                              May 14, 2009
       Examining Appellate Processes and Their Affect on Veterans

    Question 1: What are the error rates for the AMC in comparison to 
the Regional Office national average?

    Response: The systematic technical accuracy review (STAR) staff did 
an initial quality review of work completed by the Appeals Management 
Center (AMC). The review showed error trends comparable to those 
identified in the national quality review of related work completed by 
regional offices; 37 percent of AMC errors involved compliance with the 
Department of Veterans Affairs' (VA) duty to assist requirements and 
assuring complete development of a claim or appeal. This accounts for 
35 percent of all errors nationally. The AMC error rate for 
establishing the correct effective date was 18 percent, while the 
national average is 10 percent. The AMC error rate for identifying and 
addressing all claimed issues was 4 percent, while the national average 
is 10 percent.
    The STAR staff has not reviewed a statistically valid sample of 
completed claims for the AMC at this time (which is needed to establish 
an error rate) however, monthly reviews of AMC cases began in July 
2009, which will allow a valid assessment of AMC quality and comparison 
to the national average in the future.

    Question 2: What is the AMC grant rate?

    Response: Claims submitted to the AMC for processing are resolved 
in several ways: a full or partial grant of benefits, withdrawal of the 
appeal by the claimant or representative, or completion of required 
development for return to the Board of Veterans' Appeals (BVA). During 
fiscal year (FY) 2009, the AMC fully or partially granted 35 percent of 
claims reviewed. The remaining 65 percent were either withdrawn by the 
claimant or returned to BVA for a decision.

    Question 3: What is the AMC cycle time from the time a claim is 
received until the time it is rated and the veteran is sent 
notification? How does that compare to the national average for the 
ROs?

    Response: The AMC cycle time to process remanded appeals is 504 
days on average. AMC processing time is not comparable to the national 
average for regional office processing of the original claims 
decisions, as the AMC handles remanded appeals that involve additional 
processes and reviews. The combination of the following factors impacts 
AMC cycle time:

      Development of remanded claims is required to be 
completed in sequential order. Requested evidence must be received or 
all applicable time limits must have expired before proceeding with the 
next step.
        The appellate is provided 60 days to respond to 
requests for evidence and an additional 30 days are provided for 
followup requests.
        Requests for records not in the custody of a Federal 
department or agency are provided 60 days for a response. Followup 
requests are provided 30 additional days.
        Requests for records in the custody of a Federal 
department or agency are repeated until the evidence is received or it 
is determined that additional requests would be futile.
      Appellants are provided 60 days to respond to the 
supplemental statement of the case (SSOC). Evidence received after the 
issuance of the SSOC may require the issuance of an additional SSOC. An 
additional 60 days is provided for the appellant's response. Many 
appeals require the issuance of multiple SSOCs.
      Veterans service organizations (VSO) are provided an 
opportunity to review the SSOC and offer additional arguments in 
support of the claimant's appeal. The VSO must review the entire claim 
folder as well as prepare a VA Form 646, Statement of Accredited 
Representative in Appealed Case. Arguments presented by the VSO may 
require additional development as well as issuance of another SSOC.
      The majority of all remands require the appellant to 
undergo a medical examination in connection with their appeal.
      Procedural changes issued as a result of recent Court 
decisions must be considered on all pending remands involving similar 
issues.
      Many of the appeals involve older, archived records, 
which are difficult to obtain.

    Question 4: Why did it take until October 2008 to include AMC into 
the STAR process? Why was STAR not required at the inception of the 
AMC?

    Response: The Veterans Benefit Administration (VBA) decided to 
exclude certain types of cases from STAR review, such as brokered cases 
and cases from the AMC, due to limited resources and unusual workflows 
that created difficulties in the sampling methodology. The sampling 
methodology to conduct AMC STAR reviews was complicated by the fact 
that the AMC does not decide many of the claims that are remanded; they 
are sent to BVA for decision.
    VBA developed the sampling criteria for the AMC in March 2008 and 
began reviewing a sample of 120 AMC cases. The STAR staff completed the 
review in October 2008 and made recommendations for establishing a 
statistically valid process for future reviews, which began in July 
2009.

    Question 5: What is the AMC ready-to-rate average for this year and 
last year? How long does it take the AMC to process a ready-to-rate 
claim? How does the AMC's ready-to-rate claim ratio compare to the rate 
at the Regional Offices?

    Response: The Appeals Management Center handles appellate claims 
remanded by the Board of Veterans' Appeals. AMC obtains additional 
evidence requested by BVA, and the appeal is placed in ready-to-rate 
status for decision. Decisions resulting in a grant of benefits are 
processed by AMC, while unfavorable decisions are returned to BVA for 
further consideration. During FY 2008, AMC completed development on 
74,324 remands or an average of 6,194 ready-to-rate claims per month. 
In FY 2009, this number increased 6.6 percent to 79,238, a monthly 
average of 6,603 appeals.
    In June 2009, the AMC processed ready-to-rate claims in an average 
19.1 days. The national average for regional offices was 14.6 days. 
Fiscal year to date through June, the AMC processed ready-to-rate 
claims in an average of 26.4 days, while the national average was 15.9 
days. In fiscal year 2008, the AMC processed ready-to-rate claims in an 
average of 39.2 days, and the national average was 14.7 days.
    The AMC is aggressively recruiting and training new claims 
processing employees to improve service delivery. Ten full-time 
employees have been added since late December 2008, increasing the 
AMC's staffing level from 114 to 124 employees. Recently, the AMC was 
authorized to hire an additional 15 employees under the American 
Recovery and Reinvestment Act. To further improve timeliness and reduce 
the number of pending remands, the AMC receives brokering assistance 
from the Huntington, Nashville, and Seattle regional offices. This 
includes assistance in both evidence-gathering and rating.

    Question 6: Will the AMC participate in the VBA work credit and 
work management system studies required by P.L. 110-389?

    Response: The Veterans Benefits Improvement Act of 2008 requires VA 
to conduct a study on the effectiveness of the current employee work 
credit and work management systems. VA contracted with the Center for 
Naval Analyses (CNA) to perform a review of the work credit and work 
management system, including the automated standardized performance 
elements nationwide (ASPEN) system. CNA will include data and findings 
from the AMC in its final assessment. The final report from CNA, due to 
VA on September 30, 2009, will provide details on how the AMC is being 
evaluated as well as results.

                                 
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