[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
WHY ARE VETERANS WAITING YEARS ON APPEAL?: A REVIEW OF THE POST-
DECISION PROCESS FOR APPEALED VETERANS' DISABILITY BENEFITS CLAIMS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, JUNE 18, 2013
__________
Serial No. 113-22
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
JEFF MILLER, Florida, Chairman
DOUG LAMBORN, Colorado MICHAEL H. MICHAUD, Maine, Ranking
GUS M. BILIRAKIS, Florida Minority Member
DAVID P. ROE, Tennessee CORRINE BROWN, Florida
BILL FLORES, Texas MARK TAKANO, California
JEFF DENHAM, California JULIA BROWNLEY, California
JON RUNYAN, New Jersey DINA TITUS, Nevada
DAN BENISHEK, Michigan ANN KIRKPATRICK, Arizona
TIM HUELSKAMP, Kansas RAUL RUIZ, California
MARK E. AMODEI, Nevada GLORIA NEGRETE MCLEOD, California
MIKE COFFMAN, Colorado ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio BETO O'ROURKE, Texas
PAUL COOK, California TIMOTHY J. WALZ, Minnesota
JACKIE WALORSKI, Indiana
Helen W. Tolar, Staff Director and Chief Counsel
______
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
JON RUNYAN, New Jersey, Chairman
DOUG LAMBORN, Colorado DINA TITUS, Nevada, Ranking
GUS M. BILIRAKIS, Florida Minority Member
MARK AMODEI, Nevada BETO O'ROURKE, Texas
PAUL COOK, California RAUL RUIZ, California
GLORIA NEGRETE MCLEOD, California
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
__________
June 18, 2013
Page
Why Are Veterans Waiting Years On Appeal?: A Review Of The Post-
Decision Process For Appealed Veterans' Disability Benefits
Claims......................................................... 1
OPENING STATEMENTS
Hon. Gus Bilirakis, Acting Chairman, Disability Assistance and
Memorial Affairs............................................... 1
Prepared Statement of Hon. Bilirakis......................... 21
Hon. Dina Titus, Ranking Minority Member, Subcommittee on
Disability Assistance and Memorial Affairs..................... 4
Prepared Statement of Hon. Titus............................. 22
WITNESSES
Keith Wilson, Director, Roanoke Regional Office, Veterans
Benefits Administration, U.S. Department of Veterans Affairs... 6
Laura Eskenazi, Principal Deputy Vice Chairman, Board of
Veterans' Appeals, U.S. Department of Veterans Affairs......... 7
Prepared Statement of Ms. Eskenazi........................... 23
Ronald S. Burke, Jr., Director, Appeals Management Center,
National Capital Region Benefits Office, Veterans Benefits
Administration, U.S. Department of Veterans Affairs............ 9
Hon. Bruce E. Kasold, Chief Judge, U.S. Court of Appeals for
Veterans Claims................................................ 10
Prepared Statement of Hon. Kasold............................ 28
Executive Summary of Hon. Kasold............................. 30
STATEMENT FOR THE RECORD
Michael P. Allen, Professor, Stetson University College of Law... 31
James D. Ridgway, Professorial Lecturer in Law, George Washington
University Law School.......................................... 45
National Organization of Veterans' Advocates..................... 51
Matthew Middlemas................................................ 54
American Federation of Government Employees (AFGE), Local 17..... 57
The American Legion.............................................. 60
Disabled American Veterans....................................... 61
Veterans of Foreign Wars of the United States.................... 65
Vets First, a Program of United Spinal Association............... 67
Paralyzed Veterans of America.................................... 70
Greg E. Mathieson, Sr............................................ 72
Bergmann and Moore, LLC.......................................... 75
WHY ARE VETERANS WAITING YEARS ON APPEAL?: A REVIEW OF THE POST-
DECISION PROCESS FOR APPEALED VETERANS' DISABILITY BENEFITS CLAIMS
Tuesday, June 18, 2013
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Disability Assistance
and Memorial Affairs,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:06 p.m., in
Room 334, Cannon House Office Building, Hon. Jon Runyan
[Chairman of the Subcommittee] presiding.
Present: Representatives Runyan, Bilirakis, Cook, Titus,
O'Rourke, and Negrete McLeod.
OPENING STATEMENT OF HON. GUS BILIRAKIS, ACTING CHAIRMAN
Mr. Bilirakis. Welcome, everyone.
The oversight hearing of the Subcommittee on Disability
Assistance and Memorial Affairs will come to order.
We are here today to examine the appeals process for
veterans' disability claims. Our goal of this hearing is to
learn more about the process that is currently in place,
identify the areas that need improvement, and look for ways to
improve overall efficiency, whether that be by changes in the
law, in rules, or in practice.
I anticipate that our VA panelists this morning will
provide information on each of their respective roles in the
appeals process from the regional office, the Appeals
Management Center, and the Board of Veterans' Appeals.
I thank all of you for coming today.
I also look forward to hearing from the court, and I
especially thank Chief Justice Kasold of the U.S. Court of
Appeals for Veterans Claims for taking the time to be here this
afternoon.
Thank you so much.
To date we have heard quite a bit about the backlog of
veterans' claims, the VA's concerted efforts to transform the
people, process, and technology of the claims system. However,
what is not clear is the level of attention that VA is paying
towards veterans' appeals.
Recently, VA has instituted a series of initiatives to
clear out its oldest claims. And these initiatives require
months of mandatory overtime for its employees. Through these
measures, VA proposes to complete about 300,000 of these old
claims in very short order, within a matter of months.
When a claim is initially decided, it becomes a number in
VA's Monday morning report. It is considered a win towards the
department's numeric goals for 2015. Yet we know that the Board
of Veterans' Appeals projects a workload of over 100,000
appeals in the next fiscal year alone. In fact, many experts
have cautioned that VA will soon be encountering a tsunami of
appeals.
Earlier this year, the Full Committee raised concerns on
VA's ability to anticipate and prepare for challenges in the
processing of veterans' claims for disability benefits. And
with this potential influx of appeals, VA cannot ignore this
process, of course. They must be adequately prepared.
We know that right now every step of the appeals process is
plagued by lengthy delays. For those who may not be familiar
with the appeals process, here is how it works in general.
After a veteran receives an initial rating decision, they
may file a notice of disagreement with the regional office. In
response, the regional office will either reconsider the claim
or uphold the original adverse decision and issue a statement
of the case.
The statement of the case outlines the decision, provides a
list of the evidence reviewed, and attaches a list of the laws
and regulations applicable to the decision.
A veteran who is dissatisfied with the SOC may file a
substantive appeal within 60 days. If a veteran chooses to file
a substantive appeal, the claim is sent to the Board of
Veterans' Appeals, a semi-independent agency within the VA for
review.
This review is performed by VA attorneys and board members
sometimes referred to as veterans' law judges who may allow the
appeal, deny the appeal, or remand the case back to the RO for
further development.
Pursuant to statute, appeals that are remanded require
expeditious treatment by the RO. It is of note that prior to
1988, the BVA's decision was considered final and was not
subject to any form of judicial review.
In 1988, Congress passed and President Reagan signed into
law the Veterans Judicial Review Act creating the United States
Court of Appeals for Veterans Claims, an independent Article 1
court with exclusive review of denials from the BVA.
Just as a veteran aggrieved by final decision of the BVA
can appeal to the CAVC, a veteran aggrieved by final decision
may appeal to the Federal court and ultimately the United
States Supreme Court.
Appeals that are remanded through the Federal court system
are also statutorily required to receive expeditious treatment.
Despite the statutory requirements, appeals claims are often
placed on the back burner in favor of initial claims.
The 2012 BVA's report of the Chairman states that the
average length of time between the filing of an appeal and the
decision by the board is 1,040 days. If a veteran subsequently
appeals to the CAVC and the Federal circuit, they might wait
nearly twice as long.
Thus, you can imagine this Committee's surprise to learn
that appealed and remanded claims were not to be included in
VA's oldest claim initiative. Although VA stated that their
priority is to provide initial decisions to veterans who have
been waiting for two years or more, many veterans with appealed
or remanded claims have been waiting much longer than that.
Unfortunately, lengthy wait times are not the only problems
currently plaguing the appeals system. In March 2013, the
Federal court issued a ruling stating that the VA acted
unlawfully in 2011 when it promulgated a regulation that
eliminated certain procedural and appellate rights for veterans
appearing before the BVA and ordered VA to show cause as to why
sanctions should not be imposed.
VA responded to that order on May 20th, 2013 with a path
forward to restore these rights to those veterans affected and
it is my hope that VA takes veterans' due process and appellate
rights more seriously in the future.
Our Nation's veterans deserve an appellate system that
promptly and accurately adjudicates claims that may have been
incorrectly decided by VA initially and that gives appropriate
and timely consideration to remanded matters.
The veterans' appellate process is a multi-tiered process
that spans from the RO to the BVA to the CAVC and beyond. It is
my hope that bringing witnesses from each stage in the process
together at today's hearing that we may better understand the
role each plays in the process and work together in a more
efficient manner to process veterans' appeals.
And before I conclude my remarks, I want to highlight that
the role of technology in the appeals process cannot be
ignored. There has been much discussion on the need for
seamless technological capabilities between DoD and VA.
Similarly, VA must ensure that the technology that it has
developed, the Veterans Benefits Management System, or VBMS, is
equipped to not only meet the needs of ROs, but also those
needs of the BVA.
Although the VBMS development team has met with BVA staff,
we have heard conflicting reports as to how well the BVA's
needs have been received and incorporated into the VBMS to
date.
I encourage VA to continue communications with the board to
ensure that VA's technology upgrades also meet their needs.
With that, I would like to welcome our witnesses. Today's
scheduling was slightly compressed due to various events.
Ordinarily we would hold separate panels with VA on one panel
and the court on another.
However, due to time considerations today, we are seating a
sole panel and the order of the testimony is meant to be
indicative of the appeals process. We will start at the
regional office and work up to the Court of Appeals for
Veterans Claims.
First we have Mr. Keith Wilson, the Director of the Roanoke
regional office. He is here on behalf of the Veterans Benefits
Administration. Welcome.
Then there is Ms. Laura--I hope I get this right--Eskenazi,
yes, Eskenazi, the Principal Deputy Vice Chairman, is here
representing the Board of Veterans' Appeals. Welcome.
Finally in terms of VA representation, we have Mr. Ronald
Burke, Jr., Director of the Appeals Management Center and the
National Capital Region Benefits Office.
Then we will hear from Chief Judge Bruce Kasold who is here
representing the U.S. Court of Appeals for Veterans Claims.
We also have numerous statements for the record that have
been submitted from various organizations. I would like to
thank all of those who submitted them for today's hearing.
With those introductions complete, I am eager to hear from
all of our witnesses on how we may improve the overall process
for veterans' appeals. I thank you all for being here today.
And now, I would like to yield to my good friend, the
Ranking Member, Ms. Titus, for her opening statement. Thank
you.
[The prepared statement of Hon. Gus Bilirakis appears in
the Appendix]
OPENING STATEMENT OF HON. DINA TITUS
Ms. Titus. Thank you, Mr. vice-Chair.
And I want to thank Chairman Runyan for holding this
important hearing and tell him that our thoughts and prayers
are with him in the loss of his dear friend.
I also want to thank the witnesses for coming today because
this is a very important topic and a natural transition from
the things we have been focusing on up to date concerning the
backlog.
We have heard a lot of testimony, a lot of personal
stories, a lot of statistics from the VA about the backlog, but
now we need to address what is becoming increasingly important
to us, a possible backlog of appeals that seems to be getting
worse and potentially will get even more serious as we deal
with the backlog of original claims.
I routinely hear from veterans in southern Nevada who say
they are just waiting far too long to receive a decision not
just on their claim, but on any of their appeals. So improving
the speed and efficiency of the claims process and the appeals
system will be an important step that we can take towards
trying to recognize the brave men and women for all that they
have sacrificed for our country.
We often have heard in these hearings from the VA about a
transformation that is taking place at the department. And I
commend them for that, but it is important that we see that
translated into real-time, real-life results for our veterans.
It was promising to hear one VA official suggest that the
VA is now at a tipping point of breaking the claims backlog.
And I know that some numbers are coming out that show that
indeed progress is being made.
However, I know that the veterans in the Las Vegas area do
not feel like we have reached that tipping point. The veterans
in Nevada along with four counties in California who are served
by the Reno regional office are quite frustrated by the length
of time that it takes them to hear from the VA on a final
decision.
We are one of the worst in the country and the average time
is 530 days. That is far from the 125 day goal that has been
set by Secretary Shinseki.
I am pleased that General Hickey visited the Reno office
and reports back now, that progress is being made and more
staff has been hired and some of the additional regional
offices are helping with the backlog, but more needs to be done
and it needs to be done faster.
While I am encouraged by the progress, let's not just rest
on our morals.
In the past 45 days, as a result of providing provisional
ratings and clearing the inventory of old claims, the total
number of pending claims has dropped by 44,000 and the number
of backlogged claims has dropped by 74,000.
So, again, kudos to the VA for rolling out the Veterans
Benefits Management System, at all 56 offices ahead of
schedule. I am pleased with that progress.
But I think that all the focus on the dealing with the
backlog of claims is going to lead to a decreased focus on
dealing with appeals. And that is the purpose of today's
hearing to be sure that does not happen.
VBA has surpassed a quarter million claims waiting on
appeal and BVA has 45,000 claims pending. The average length of
an appeal completed in fiscal year 2012 was around 1,000 days
as the vice-Chair pointed out. There is progress, but there is
still room for improvement.
What really concerns me is that assuming that VBA does its
work through the current backlog by 2015, this could lead to a
significant increase in the number of cases that are waiting
for resolution of appeal.
By the VBA's projections, the workload will more than
likely double by fiscal year 2017 from approximately 45,000
claims today to more than 102,000. This is further compounded
by the fact that we have been made aware that VBMS is not ready
for use by the VBA.
I, like the vice-Chair also when he spoke of technology, I
urge the VA to take the necessary steps to ensure that VBMS is
also functional as quickly as possible. It is counterproductive
to send electronic files to the VBA in a format that results in
more delays for our veterans.
So the intent of, I think, the shift of this Committee from
focusing on the backlog to focusing on the claims is not to rob
Peter to pay Paul. We do not want to resolve the backlog at the
VBA only to create a new one in the appeals process. We have
got to figure out how to do both without one harming the other.
I look forward to hearing your testimony and hope that you
will give us some recommendations so that we can help you and
we can produce the best outcomes for our veterans who are
appealing their RO decisions.
Thank you for allowing me to speak, Mr. vice-Chair, and I
yield back.
[The prepared statement of Hon. Dina Titus appears in the
Appendix]
Mr. Bilirakis. I thank the Ranking Member.
I would now like to recognize the panel. Your complete
written statements will be entered into the hearing record.
And, Mr. Wilson, you are recognized now for five minutes.
STATEMENTS OF KEITH WILSON, DIRECTOR, ROANOKE REGIONAL OFFICE,
VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS
AFFAIRS; LAURA ESKENAZI, PRINCIPAL DEPUTY VICE CHAIRMAN, BOARD
OF VETERANS' APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS;
RONALD S. BURKE, JR., DIRECTOR, APPEALS MANAGEMENT CENTER,
NATIONAL CAPITAL REGION BENEFITS OFFICE, VETERANS BENEFITS
ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS; BRUCE E.
KASOLD, CHIEF JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS
STATEMENT OF KEITH WILSON
Mr. Wilson. Thank you, Mr. Chairman, Ranking Member Titus.
My name is Keith Wilson. I am the Director of the regional
office in Roanoke, Virginia.
I will describe the appeal process as it occurs at the
regional office level. Any decision, final decision that VA
makes on veterans' claims is an appealable decision within one
year of notification of that decision.
The manner in which veterans can appeal that decision is
flexible by design. They can write a specific letter to us
telling us specifically what they disagree with. They can just
tell us they disagree in general terms.
The point of the flexibility in the program is to make sure
veterans are afforded every opportunity for a favorable
decision and allow them to get satisfied and in the most
expeditious way.
Veterans can appeal either an entire decision that we make
on a claim or various issues. By that, I mean we make a
decision on a claim, but often the claim will have multiple
disability issues that we adjudicate. So a veteran could file
an appeal for one decision or ten decisions that we make.
Again, completely up to them.
Additional information is often identified when a veteran
does file an appeal for the claim decision that was denied. And
we do have an obligation to go out and collect additional
evidence if it is identified at any time in the process. And we
are very happy to do that because we are trying very hard to
resolve the appeal at the earliest opportunity in the appeal
process.
Throughout the process, it is an open record. We have the
opportunity to grant the decision in full or grant the appeal
in partial or continue to deny the benefit and ultimately send
the case to the Board of Veterans' Appeals for a decision.
When the veteran does file a notice of disagreement with
us, a disagreement with the decision, the first thing that we
do is provide them a letter providing them an overview of what
we call the decision review officer process.
The decision review officers in our facilities have the
opportunity to complete a de novo review on that case. In other
words, they can look at the evidence of record and based solely
on the evidence of record without any new information they can
render a different decision on the appeal.
So they could grant the benefit at the regional office
level through that process. Many veterans do find it
advantageous to follow the DRO process, not all of them, but
many of them do ask for that.
If the claim cannot be granted at the DRO level, then we
issue a statement of the case to the individual. The statement
of case lays out in great detail the decisions that we made on
each of the issues under appeal, all the appropriate regulatory
guidelines, statutory guidelines, et cetera.
So it is a very large document often, but it provides all
the details on the decisions that we have made on his or her
claim.
If the veteran continues to disagree with the decision on
their claim after reviewing the statement of the case, the
veteran provides to us what we call a substantive appeal. In
other words, they notify us that, yes, they have read the
statement of the case. They continue to disagree and they want
the appeal to continue.
They have several options at that point concerning
hearings. Once we receive the statement of the case,
technically the case at that point is under the jurisdiction of
the Board of Veterans' Appeals. Oftentimes, veterans will ask
for a hearing when they submit their substantive appeal.
Those hearings have different options. A veteran can ask
for a hearing with a BVA member in Washington. They can ask for
a video hearing with a board member from our office or they can
ask for a travel board hearing.
Members of BVA conduct travel board hearings at the
regional offices around the country on average a couple times a
year. If the veteran does decide that that is the option they
want to pursue, then they will be placed on a docket for when
the next available slot would be for the travel board hearing.
Any time during that process, if additional evidence is
received, we will review that evidence. If we can grant the
claim, the appeal, we will do so. If we are unable to grant the
appeal, then we will issue a supplemental statement of the
case.
So, again, the veteran receives all the evidence that we
used in deciding the claim. Once that is completed, then we
will certify the claim to the Board of Veterans' Appeals. And I
will defer to my colleagues for the next step in the process.
Mr. Bilirakis. Very good. Thank you very much.
I now recognize Ms. Eskenazi for five minutes.
STATEMENT OF LAURA ESKENAZI
Ms. Eskenazi. Thank you.
Good afternoon, Chairman Bilirakis, Ranking Member Titus,
and Members of the Subcommittee. Thank you for inviting me to
speak to you today on a very timely and important topic of the
veterans' disability compensation appeals system.
This appeals system operates in several stages within VA.
Most of the stages in the appellate process are conducted at
the VA regional office level within the Veterans Benefits
Administration.
The board's work on an appeal does not begin until VBA
completes all initial appeals processing actions and certifies
and transfers the appeal to the board for a final agency
decision. This multi-stage system is why I am accompanied today
by both Mr. Wilson and Mr. Burke of VBA.
The board's mission is to conduct hearings and dispose of
appeals properly before the board in a timely manner and to
provide veterans with one review on appeal to the secretary.
The board has a very unique role in VA. It provides a de
novo or new look at each case being appealed from the regional
offices which includes a review of every single piece of
evidence in the record.
A decision made by the local regional office receives no
deference from the board. Each decision of the board must
contain written findings of fact, conclusions of law, and a
detailed explanation.
Board decisions read like legal appellate briefs including
legal citations that support the outcome in the appeal. Board
decisions can range from 20 to 40 pages in length depending on
the complexity of the case.
Board staff attorneys draft about three decisions per week
on an annual basis for review and signature by one of 64
veterans' law judges. Each veterans' law judge signs generally
752 decisions per year.
The board decides appeals in docket order which means that
the oldest appeals are worked first. This method ensures that
the veterans who have been waiting the longest have their
appeals heard first at the board.
Looking over the past two decades, the amount of evidence
associated with each appeal has been steadily rising as are the
number of issues per appeal which results in longer, more
complex board decisions. Even with this growing complexity,
veterans have enjoyed an unprecedented level of success at the
board in recent years.
In fiscal years 2011 and 2012, the board allowed benefits
in 28 percent of the appeals it decided, the highest allowance
rate in the past two decades and far higher than the allowance
rate of only 13 percent back in 1990.
In fiscal year 2012, the board denied benefits in only 22.5
percent of the appeals it handled. That is far lower than a
denial rate of 62 percent back in 1990.
In fiscal year 2012 where the board was not able to allow a
benefit, the board remanded or sent back to VBA 45.8 percent of
appeals for further evidentiary development to ensure that all
procedural protections had been provided to the veteran and
that all relevant evidence is obtained.
Despite this remand rate, there is a success story to be
told concerning remands. Remands are in large part the result
of VA's efforts to do everything possible to help the veteran
substantiate his or her claim for benefits and to ensure that
no potentially favorable evidence is overlooked.
Remands fall into two categories--avoidable remands and
unavoidable remands. Unavoidable remands which make up the
majority of remands today are the result of the pro-claimant
open record that allows new evidence to be submitted or
obtained up until the end, the point that a final decision is
made within the agency.
Through intensive training, VA has seen success in reducing
the category of avoidable remands from a high of 60 percent
back in 2005 when we first started tracking this data to 36
percent fiscal year to date.
With a predicted rise in appeals in the coming years, the
board continues to work with its partners in VA as well as
external stakeholders to seek efficiencies in this complex
appellate process.
I look forward to answering any questions you or the
Members of the Subcommittee may have. Thank you.
[The prepared statement of Laura Eskenazi appears in the
Appendix]
Mr. Bilirakis. Thank you, Ms. Eskenazi. I appreciate it
very much.
And now, Mr. Burke, you are recognized for five minutes.
STATEMENT OF RONALD S. BURKE, JR.
Mr. Burke. Thank you.
Good afternoon, Chairman Bilirakis, Ranking Member Titus,
and Members of the Subcommittee.
As director of VBA's Appeals Management Center, I direct
the operations of an authorized staffing level of 249 full-time
employees.
The Appeals Management Center was established in 2003 as a
centralized remand processing facility and currently
approximately 75 percent of all of VBA's remands are processed
by the AMC.
The AMC receives appeals as they are remanded to us by the
Board of Veterans' Appeals. Upon receipt, personnel initiate
development actions as directed by the remand order.
Once all necessary evidence is obtained and the file is
ready for decision, rating veteran service representatives or
decision review officers will render a disability
determination.
If the decision results in a continued denial or if
benefits have not been granted in full, the AMC issues a
supplemental statement of the case and subsequently recertifies
the appeal back to VBA after appropriate due process has been
served.
For cases that result in a full grant of benefits sought on
appeal, veterans' decisions are promulgated at the AMC so that
benefits can be expedited before returning the claims holder to
the RO jurisdiction.
By expediting action on remands, the average days pending
for veterans that have appeals at the AMC has been reduced from
nearly 400 days down to today's 110 days.
In January of 2012, the AMC established a partial grant
processing team. This team was established in order to expedite
the promulgating of benefits for veterans that had received
partial grant decisions on appeals that also contained remanded
issues.
From date on inception to current, the partial grant
processing team has served more than 3,380 veterans, delivered
more than $63.5 million in retroactive benefits, and has issued
those benefits on average in less than 17 days from receipt of
the remand from VBA.
In addition to the processing of remanded appeals, the AMC
began brokering in more than 200 notices of disagreement from
field offices in February of 2013 and increased that monthly
brokering level to 500 notices of disagreement per month
beginning in April of 2013. This effort was established to
assist VBA in improving processing timeliness for notices of
disagreement.
I appreciate the opportunity to provide remarks on this
very important topic and look forward to any questions that you
may have for me today. Thank you.
Mr. Bilirakis. Thank you, Mr. Burke. I appreciate it.
And now, Chief Judge Kasold, you are recognized for five
minutes.
STATEMENT OF HON. BRUCE E. KASOLD
Judge Kasold. Thank you very much, Mr. Chairman, Ranking
Member Titus, and distinguished Members of the Committee.
I am pleased to appear before you today. I commend the
Committee's effort in working to ensure that veterans receive
decisions on their claims in the most accurate and efficient
manner possible.
With my statement being submitted, I will just go over a
few key points.
For the first time ever, the court is fully staffed with
nine active judges. And we thank this Committee, the other
Committees of Congress, Congress, and the President for your
past and continued support.
In fiscal year 2012, the court received 3,649 appeals and
disposed of 4,355. The court is one of the busiest Federal
appellate courts based on the number of appeals filed and
decided per judge. We are maintaining our productivity through
the tireless effort and focus of our entire court staff.
The court continues to evaluate and modify its procedures
to streamline the judicial review process to the greatest
extent possible. To this end, our pre-briefing staff conference
process has been extremely successful in bringing the
appellants and the secretary together to work out mutual
resolutions of many appeals.
On average, about 65 to 70 percent of the court's appeals
are conferenced and of those, approximately 50 percent end up
being resolved by agreement of the parties--generally with a
remand.
The court has also made administrative adjustments to
assist chambers in providing prompt judicial review of fully
briefed cases such that individual single judge decisions are
generally decided within 90 days after they get to the judge.
We have also worked with our central legal staff attorneys
to streamline their case review process, a process that at one
time had 800 cases waiting to be sent to chambers. Now those
cases are sent to chambers in under 30 days as an average.
These efforts have cut days out of the procedural
development of claims while preserving for each veteran who
appeals to the court the right to a full and fair decision.
Despite the court's efforts to streamline its appellate
review, the bottom line is litigation is time consuming and
affording parties due process adds to the overall wait for
decision on appeals.
Cases settled during the conferencing process, for example,
still take about six months. Cases that go through the full
briefing take a little over a year for the single judge
decisions, 245 days are those without any request for
extensions. That is the time to file briefs, to get the record,
to review the record, et cetera.
We also had about 5,000 requests for extension last year,
which on the cases decided by judges averages about a little
over two requests for extension each. And generally those
requests for extension are for 45 days each, so that is an
additional 90 days. That is just the process to go through to
allow everyone the time to file their briefs, review the
record, et cetera.
The court continues to encourage appointment of a
commission to evaluate the costs and benefits of the unique
three-tiered Federal appellate review system we have for
veterans' benefits decisions.
And on that summary, Mr. Chairman, I will close and take
any questions that you have. Thank you.
[The prepared statement of Hon. Bruce E. Kasold appears in
the Appendix]
Mr. Bilirakis. Thank you very much.
I will now begin questioning and then recognize the Ranking
Member and other Members, of course, alternating in order of
arrival.
The first question, I do not think the Chairman has
arrived, so I will start.
I would like to start by thanking the witnesses, of course,
here today as well as the VSOs who submitted written testimony
on this troubling topic.
The scrutiny, and this is for the entire panel, the
scrutiny of the backlog is often data driven and we know that
VA keeps track of statistics on initial claims such as days
pending and average days to complete.
However, VA's Monday morning workload reports only keep
track of the number of appeals pending. In other words, there
is no indication of the average days pending or days to
complete for appealed and remanded claims.
My question is, why doesn't VA make these statistics
publicly available via its Monday morning workload reports? For
the panel. Who would like to begin?
Mr. Wilson. Mr. Chairman, I will take a shot at it.
It is a little bit difficult for me to provide a full
answer because I am really speaking on behalf of the Roanoke
regional office. Certainly that information is available and I
think it is fair to say that if there is a desire to have that
information available, it would be made available.
But I would defer to anybody else that----
Mr. Bilirakis. Why wouldn't it be published in the reports,
the Monday morning reports? Any reason for that?
Mr. Wilson. None that I am aware of, no, sir.
Ms. Eskenazi. Sir, the Monday morning reports are kept by
the Veterans Benefits Administration, so I will defer to my
colleagues on that.
I will note that the board does track its workload. We do
not publish it on a regular basis externally. We publish our
annual report that shows the trends.
Currently at the board, our cycle time which is the time
that it takes on average from when a case comes into the board
and leaves the board is 117 days. If you include the period
that we allow our VSO partners to review the appeal and provide
written argument, that portion is a total of 251 days of
processing time at the Board of Veterans' Appeals level.
Mr. Bilirakis. Anyone else?
Mr. Burke. I will answer that, sir, that the--I cannot
speak to the Monday morning workload report. However, all of
VBA's appeals processing times and all of the different cycle
times in the process are posted by our performance analysis and
integrity staff and accessible by RO leadership. So we do have
those numbers available to us.
Mr. Bilirakis. Thank you.
Next question again for the entire panel. To any of the VA
witnesses, could you elaborate on the policy reasons behind
excluding appeal of the remanded claims from VA's recent
initiative to address the oldest claims?
Oftentimes, these claims end up ongoing, an ongoing cycle
of being appealed and remanded several times, as you know,
causing veterans to wait many years for a final decision on
their claim.
The law requires that claims that are remanded from both
the board and the Court of Appeals for Veterans Claims receive
expeditious treatment.
Mr. Wilson and Mr. Burke specifically, could you describe
how this process works in practice at both the regional office
and the Appeals Management Center respectively? Did the appeals
design team pilot program offer any solutions as to how to more
efficiently process remanded claims and in an expeditious
manner?
Mr. Burke. Sir, I can speak to the appeals design team as
the lead for VBA's appeals design team. We did do a year-long
appeals process review in the Houston regional office.
The study of the data from that year-long pilot are still
being analyzed. Very productive results. The process did lead
to a whole host of recommendations that were designed in
improving processing efficiencies as well as quality.
Those recommendations are still under review and we hope to
be able to get some of those best practices and recommendations
deployed to help improve the processing timelines, as I said,
as well as quality.
Mr. Bilirakis. Mr. Wilson.
Mr. Wilson. Unfortunately, I do not have detailed
information concerning the pilot. Roanoke was not part of that
pilot.
I think it is fair to say, though, that the manner in which
VA tracks its work specifically concerning the two-year effort
on oldest claims was never intended to provide a slight of any
kind to any of the other workload including appeals. It is just
simply a manner in which we chunked out the work to move
forward.
Mr. Bilirakis. Thank you.
Next question. One more question, and then we will move on.
Many of the statements for the record that were submitted
for today's hearing emphasize the need to simplify the appeals
process.
If you had the ability to redesign the veterans' benefits
appeals process, what would you do differently? For the entire
panel.
Mr. Wilson. I can speak from the regional office level and
the issue of complexity in the system is very important. As I
mentioned in my original discussion, the process itself is
open. Evidence can be added at any time. It is an interactive
process. We take any kind of indication from the veteran if
they are dissatisfied as an appeal.
The process by design is meant to try to grant benefits
whenever possible for the veterans and that is what we try hard
to do. But that does lead to a complex process. It leads to a
process where there are oftentimes circles in the process as
you are going out and getting, for instance, additional
evidence.
Ultimately, that would be a good thing if we can grant
benefits, but it does take a long time in the process.
Mr. Bilirakis. Anyone else? What would you do differently?
Ms. Eskenazi. Sir, the board has put forth a number of
legislative proposals each which we think will add to
efficiencies in this complex process.
I do not know that there is a silver bullet, but several of
our legislative proposals are targeted towards efficiencies,
particularly at the board level.
One of them concerns changing or altering the requirement
for the optional board hearing, allowing the board to default
to scheduling through video and then offer an in-person if the
veteran requests the in-person hearing. That proposal has had
some traction of late and we are hopeful that that can move
forward.
We have also identified a proposal to alter the type of
content in the board decision. As I stated in my opening
statement, the decisions have become lengthy and complex. And
if we could simplify the content, that could perhaps lead to
some efficiencies without taking away from rights of veterans.
We also put forth a legislative proposal on a
jurisdictional matter identifying the substantive appeal as a
requirement for triggering the board's jurisdiction as opposed
to an optional requirement.
And another good success story I would like to report is
the board had put forth a proposal about a waiver requirement.
In other words, the system is set up that the veteran gets
several bites at the apple. And at the point that the veteran
files a substantive appeal at the regional office level, if
they submit additional evidence at that stage, in the past the
RO had to re-look at that and issue a supplemental statement of
the case.
With the Camp Lejeune Act which was passed in 2012, there
is a provision that became effective in February 2013 that
would allow that evidence to come straight to the board for
review. Because it is so recent, we have not had the
opportunity to appreciate that success, but we believe we will
see a lift in efficiencies from that.
Mr. Burke. I would add to this, sir, that there are several
things right now that VBA is using. That further utilization
will help with the appeals process.
VBMS, it has got some inherent benefits to that from a
quality perspective, but also gives VBA the ability to work
subsequent claims at the same time that an appeal is being
worked, thus eliminating any delays based on trying to process
both a subsequent claim and an appeal.
Continued use of DBQs, I think, will also lend the quality
aspect and lead to more accurate decisions. Further utilization
of fully developed claims should also cut down on the appeals
workload and standardization of forms.
Specifically, one that came out of the design team was a
notice of disagreement form. That would make it much easier to
review a submission by a veteran or an accredited
representative to tell that that is, in fact, a notice of
disagreement.
As we did the design team pilot, we noticed that many of
the notice of disagreements that were put under controls
untimely were because they were hard to decipher whether or not
they were a subsequent claim or a notice of disagreement. So
some of those would help with our appeals process as well.
Mr. Bilirakis. Chief Judge Kasold.
Judge Kasold. Thank you, Mr. Chairman.
I believe it is this Committee's proposal, that a
commission be developed and I support it. I think it is a very
complex issue on a system that has been developed rather
piecemeal over a significant amount of time with judicial
review over the last 24, 25 years.
You have two de novo reviews down below. They take time.
You have reopening at any time of a claim. You have clear and
unmistakable error assertion against old board decisions at any
time. You have two appeals of right at the judicial level.
This is a system that allows a veteran many, many, many
opportunities to submit additional evidence. And I am not
suggesting that that is wrong, but you have to weigh that
against the time it takes to process each of these.
I do not have any apologies for the secretary and do not
know his operations down below, but there are 1.3 million
initial claims being processed.
As I understand it, the board has somewhere around 50,000,
maybe going up to 100,000 over the next four years, which as a
side note could really impact the court because we receive a
derivative of these claims.
Of the claims filed, about five percent, a little less than
five percent, get to the board. And then of that, 8 percent of
the claims that get to the board get to the court.
So you have two different systems. One is that initial
claim, how do you get it processed in a timely manner, and then
you have all these protections, if you will, for the veteran to
allow him to have a second de novo review, to reopen a claim
ten years later, to go against a 20-year-old claim based on
clear and unmistable error, and to have two judicial reviews at
a Federal appellate court.
So I would support the Committee's approach towards this,
that a commission be created to take a look at that system.
Mr. Bilirakis. Thank you very much.
Now I will recognize the Ranking Member, Ms. Titus, for as
long as she wants. I know we do not have a lot of time, but
maybe we can--again, when we reconvene, you can continue. Thank
you.
Ms. Titus. Well, thank you, Mr. vice-Chair. I will be
brief.
I appreciate your testimony. I just want to step back and
try to look at the big picture. I appreciate all of this that
you have laid out of ways that you are addressing the backlog
and reducing the number of cases, VBMS, virtual docket for
scheduling, videoconferencing, this pilot program that you
mentioned, appeals design team.
That is all great, but it seems to me we are looking
backwards. We are always reactive in the VA figuring out how to
deal with the problems and the cases that already exist there.
We have got to anticipate, I believe, a great increase in
the number of appeals that you all are going to be hearing over
the next couple of years.
We have just been hearing all the things that have added to
the number of original claims. We are dealing with the two-year
cases. Then we are going to deal with the one-year cases.
You have got the Vietnam veterans who are now in the
system. You have got the veterans from the wars that are
winding down in the Middle East coming into the system. You
have got increased complexity of the cases that come to the
system. You have got a greater proclivity to litigate
everything in society.
Are you ready for this? This is an onslaught. I do not hear
any of you talking about the need for more space or more
lawyers or more training. You know, this is coming. Are we
going to now come back in five years and talk about what we are
trying to do dealing with this after the fact as opposed to
getting ready for it knowing that it is coming?
Anybody want to address that?
Ms. Eskenazi. Thank you, Member Titus. I would be happy to
take that question.
At the Board of Veterans' Appeals, we predicted that this
fiscal year we would receive 54,000 appeals. And so far, we are
at 37,000. So we are on track to meet that prediction. It is
not very different from past years. In 2012, we received 52,000
appeals. So the incoming for us is in the outer years, but they
are coming and we are working to gear up to meet that
challenge.
We are in discussions with the secretary about internal
resources and we are actively hiring a great number of
attorneys, executing every dollar in our current budget to get
new attorneys in, doing a new type of training with them to
hopefully have them hit the ground running and to think of new
ways to do what we have been doing to be ready for this large
increase of appeals that are coming.
Ms. Titus. That does not give me a lot of confidence. You
are not giving me very many specifics here, but at least you
recognize it is a problem.
Anybody else?
Judge Kasold. I can assure you that if they go to 100,000
claims as predicted over the next several years, I or my
successor will probably be here discussing with you the need
for additional support.
What has happened in the last couple of years is the number
of appeals from the board to the court has actually gone down
slightly, while two additional judges have been appointed,
bringing us to nine. It takes about a year to get a new judge
fully up to speed, and we are constantly reassessing how we can
best handle the appeals that are coming in with the number of
judges that we have.
On the current number of appeals, I think that we are well
staffed. The Committee has always been very supportive of the
court. As the numbers go up, if they do, which I think everyone
thinks they will, we will be assessing that and coming back to
the Committee.
Thank you.
Ms. Titus. Mr. Chairman, thank you.
Mr. Bilirakis. Okay. Very good. We will give you another
opportunity if I am still the Chairman.
We expect Chairman Runyan to return after the break, but we
have three votes and we will go ahead and recess now and
hopefully return by approximately 3:15.
Thank you. Thanks for your patience.
[Recess.]
Mr. Runyan. [Presiding] The Subcommittee will come to
order.
And I want to thank everyone for coming back and apologize
for not being here earlier. I was tending to some personal--I
had a college roommate of mine pass away over the weekend, so
we had a funeral back in Ann Arbor. It was a rough one, but
thanks for coming back.
I am going to ask a few questions. I do not know if anybody
from the minority or the majority may. I know Chairman Miller
may stop by here. My first question is actually going to be for
Mr. Wilson.
In 2011, U.S. Government Accountability Office investigated
VA's DRO review process with a report entitled Clear
Information For Veterans And Additional Performance Measures
That Could Improve The Appeals Process.
GAO made three recommendations for VA action which were
revised sample appeals, election letter within the policy
manual, and test the letter's clarity with veterans; secondly
established national and regional office performance measures
related to the appeals resolution at the regional level and
ensure sufficient quality review producers are in place; and,
third, assess the knowledge and skills that the DROs need to
perform their job and developing a training program tailored to
the DROs.
And are you aware of what action the VA has taken on these
recommendations since 2011?
Mr. Wilson. Unfortunately, I am not familiar with the
specifics from a national perspective. I am able to talk at the
Roanoke level concerning the performance metrics. We do have
performance metrics in place. Those are national measures.
But concerning the specific recommendations of the report,
unfortunately, I am not able to address those. I do not know if
Mr. Burke could or we would be certainly happy to take the
information for the record and provide a response.
Mr. Runyan. Do you have anything, Mr. Burke?
Mr. Burke. Yes, sir, I do. I know that currently VBA is in
the midst of negotiating revised DRO performance standards. And
it was a recommendation of the appeals design team to look a
little more closely at the de novo review as opposed to
traditional election.
We are still analyzing the results of a year-long pilot. We
hope to have the analysis completed here shortly so that we can
put forth our ideas or suggestions about the utilization of the
de novo reviews compared to traditional election.
Mr. Runyan. I have a long list of things I would love to
get to, but I am respectful of everybody's time.
Mr. Runyan. Ms. Eskenazi, correct?
Ms. Eskenazi. Eskenazi, yes.
Mr. Runyan. Yes. Can you state for the record what
specifically the board needs to do in order to process appeals
in VBMS?
Ms. Eskenazi. The board has been working with the VBMS team
in VBA since the inception of the VBMS which is the new robust
system. We had virtual VA and we are moving into the VBMS.
So we have been working on that work group for several
years now. We have an extensive list of programming
requirements. And to date, the focus has been on gearing up
VBMS for processing the large number of claims that the
department has seen. And now we are shifting into the appeals
work.
To date, the board has received less than ten appeals
certified to us in the VBMS system. I think it is actually
eight. And they have all come from the Appeals Management
Center. They are cases that have previously been to the board.
We remanded to the Appeals Management Center, VBA for
additional work, and they are now aggressively scanning and
they have returned eight to us in the system.
We have done our initial training in May and we are in the
process of ensuring that all of our staff have the necessary
clearances through the IT officials to access that system. We
have about a third of our staff with the access currently.
We have also identified the top four programming
requirements that we would like the VBMS team to focus on and
ensuring that we get in the 6.0 release. I am told on Friday,
my understanding is that the board's top four requirements are
scheduled to be in that 6.0 release.
So that is scheduled for late in the year. In the meantime,
we have identified methods of working those VBMS claims,
working around what we do not currently have programmed in
until the point that we have those programming requirements and
can be working at a higher level of efficiency.
We are looking forward to getting our hands into the
system. So far, we have only done a pilot with inactive appeals
to kind of see what it looks like. So we are looking forward to
working these active appeals to continue to refine our
requirements.
Mr. Runyan. So is it safe to say that as far as VBMS goes,
we are even further behind in the appeals process than we are
in adjudicating new claims?
Ms. Eskenazi. Well, we have not seen any appeals yet. Like
I said, these first few just came in the past few weeks. And it
is actually good timing now that we have the access. We are
going to work them. We are going to take detailed notes on the
effectiveness of the system and continue to work with the
programming team to refine those requirements.
Mr. Runyan. I will just put this out there. In the VA
metrics, because there were not medical exams being given, will
we see a bigger backlog in the appeals process?
This is really, the Committee's fear. Because of our
reporting mechanisms VA is not so concentrated on the backlog
in the appeals process, and I think Judge Kasold will say that
it is growing.
With the push to get these older claims out of the way, it
is going to lead to an appeals' backlog. What are the panel's
thoughts on this?
Mr. Wilson. Mr. Chairman, I can address that from the
Roanoke perspective.
First of all, one of the heavy lifts for us in Roanoke in
order to get these oldest non-appealed claims out was getting
the medical exams. We did not cut corners on getting medical
exams. We ordered a lot of medical exams. And that was really
one of the long poles in the tent in terms of getting these
claims done timely. So I can assure you we did not cut corners
in terms of getting exams for those veterans.
The other thing I can say is we are not letting this effort
for the two-year claims interfere with our ability to continue
to work appeals. We have not peeled off any of the people from
our appeals team or quality team to do those two-year-old
claims.
Now, nationally we have implemented a mandatory overtime
policy which does include the people in our appeals team and
our quality teams. During the mandatory overtime, those
employees are working on the two-year initiative. But when they
are doing their regular core hours, they are continuing to
focus on quality and appeals.
Mr. Runyan. We all agree. Getting it done right the first
time eliminates the appeals process a lot of times. But history
is going to say that there is potential that we have an issue
in the appeals process as we move forward.
I want to make sure that we are all aware of that because
sometimes as we are moving forward, it sounds great, but in
reality we are creating another problem. And it is personally
frustrating to me.
Mr. Wilson. We are not interested in robbing Peter to pay
Paul. We are not at all happy with the amount of time it takes
to process an appeal. We are not at all happy with the amount
of time it takes to process a claim. But I can tell you flat
out that we are not robbing from Peter to pay Paul. We are
focusing on both.
Mr. Runyan. I get that. But I believe appeals have averaged
1,040 days to process, if I am correct.
Ms. Eskenazi. Sir, I would like to address that timeframe.
The appeals system in VA is a multi-stage process. That
particular 1,000 days process is the point that the veteran
completes the formal appeal action at the VBA RO level, files
their Form 9, and the board completes its action.
At the board, when we get our hands on the case, we are
turning them around in 117 days. If you count the time that our
VSO partners have to review that case, then we are turning them
around in 251 days.
One thing, as VBA takes in more claims to serve more
veterans with benefits, it naturally will lead to more appeals.
Veterans have a right to an appeal. And there has been studies
on correlations of quality between the appeal rate and high-
quality stations may have high appeal rates, so there is not
really a correlation there.
If you look back over trends, generally the board gets
about five percent of what VBA takes in that year. So we are
taking those numbers that VBA is taking in and projecting the
outer years. And we are predicting an increase in appeals.
Part of the efforts that we are doing at the board to
address that incoming rise in appeals, and I neglected to give
the details on this when Ranking Member Titus asked this
question earlier, we are doing an aggressive hiring campaign
and we are hiring 100 new attorneys between now and the end of
the fiscal year.
That is a significant proportional increase in the board
staff. We are trying to get these people in, get them
aggressively trained, and gear up for that future load that we
see coming to the board.
Mr. Runyan. My next question regards that process.
Judge Kasold, as you note in your testimony, the Court of
Appeals for Veterans Claims has exclusive jurisdiction over
denials by the Board of Veterans' Appeals and the court is one
of the Nation's busiest appellate tribunals.
If you could give your fellow panelists at the board here
one piece of advice on how to improve the quality of BVA
decisions, what would that be?
Judge Kasold. I can only suggest what they already know,
the number of remands that are sent back to the board primarily
involve reasons and basis error, or lack a medical exam, or
fail to address favorable material.
I do note that we get an appeal somewhere in the
neighborhood of eight percent or nine percent of the cases
decided by the board that are not remanded by the board--
remanded claims are not appealable. And about 70 percent of the
appeals to the court involve representation by attorneys.
These appeals go through the conferencing process that we
have established at the court and about 50 percent of those
appeals are settled by the parties' attorneys which for VA, is
group 7. And so, at some of the functions that the court has
had, I have mentioned that perhaps what group 7 sees and learns
could be incorporated within the training that the board does.
And I think they may have actually done that, if I am not
mistaken--because the group 7 attorneys can share with the
board their insight from the cases that they see and the
negotiations that they have in that conferencing process.
Just focusing on those three areas, though, I think would
be helpful. Obviously to see if you can identify them ahead of
time before they get to the court would be helpful in both the
remand rate where the secretary's counsel agrees and then also
when they ultimately get to the judges.
Mr. Runyan. Kind of talking in that same line of thought
there, you noted in your testimony the number of appeals that
come to the court unrepresented but that acquire representation
during the course of their appeal.
Could you comment on the effect that a representative can
have on the quality and nature of the appeal moving forward?
Judge Kasold. I do not have any statistics per se. But just
in reviewing the cases, lawyers generally frame the issues
better than the veteran does. That is why we require all the
cases that involve representation by counsel to go through the
conferencing process.
That process requires the counsel for the veteran to
identify the issues on appeal, to share those issues with the
secretary's counsel and then participate in a conference with
our central legal staff.
That process, because the issues have been identified by
counsel, I think, is a significant part of the reason why you
have the 50 percent remand rate. Issues are being identified by
counsel, explained to the opposing counsel, and discussed with
our central legal staff, which gets a 50 percent remand rate.
We also see the benefits of representation in the briefings
that come in. You have a fully briefed case by counsel which
explains those issues in the cases that get to the judges,
versus the pro se brief where many of the veterans are really
expressing dissatisfaction but not identifying error.
So if an appellant can get representation, I would say it
is probably beneficial to them to do so. I note that there is
the active pro bono program that provides representation, and
that is why at the end, I think it is somewhere close to 70
percent are represented.
Mr. Runyan. Again, I want to thank you all for being here.
I would like to again thank you all for your testimony and
looking forward to continuing to work with each and every one
of you on these important matters.
With that, you are all excused. I want to thank everyone
for being with us today. I look forward to future updates on
the initiatives we have heard about today and look forward to
working with all of you throughout this Congress to ensure we
improve the veterans' disability claims appeals process.
I would like to again thank all of our witnesses for being
here and ask unanimous consent that all Members have five
legislative days to revise and extend their remarks and include
any extraneous material. Hearing no objection, so ordered.
I thank the Members that were here earlier for their
attendance today, and this hearing is adjourned.
[Whereupon, at 3:56 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Gus M. Bilirakis
Good afternoon and welcome everyone. This oversight hearing of the
Subcommittee on Disability Assistance and Memorial Affairs will now
come to order.
We are here today to examine the appeals' process for veterans'
disability claims. Our goal in this hearing is to learn more about the
process that is currently in place, identify the areas that need
improvement, and look for ways to improve overall efficiency--whether
that be by changes in law, in rules, or in practice.
I anticipate that our VA panelists this morning will provide
information on each of their respective roles in the appeals' process
--- from the Regional Office, the Appeals Management Center, and the
Board of Veterans' Appeals--I thank you all for coming today.
I also look forward to hearing from the Court, and I especially
thank Chief Judge Kasold (Kaz-old), of the U.S. Court of Appeals for
Veterans Claims, for taking the time to be here this afternoon.
To date we have heard quite a bit about the backlog of veterans'
claims, and VA's concerted efforts to transform the ``people, process,
and technology'' of the claims' system. However, what is not clear is
the level of attention that VA is paying towards veterans' appeals.
Recently, VA has instituted a series of initiatives to clear out
its oldest claims, and these initiatives require months of mandatory
overtime for its employees. Through these measures, VA proposes to
complete about 300,000 of these old claims in very short order--within
a matter of months.
When a claim is initially decided, it becomes a number in VA's
Monday Morning Report. It is considered a ``win'' towards the
Department's numeric goals for 2015. Yet, we know that the Board of
Veterans' Appeals projects a workload of over 100,000 appeals in the
next fiscal year alone.
In fact, many experts have cautioned that VA will soon be
encountering a ``tsunami of appeals.'' Earlier this year, the Full
Committee raised concerns on VA's ability to anticipate and prepare for
challenges in the processing of veterans claims for disability
benefits. And, with this potential influx of appeals, VA cannot ignore
this part of the process. They must be adequately prepared.
We know that, right now, every step of the appeals process is
plagued by lengthy delays. For those who may not be familiar with the
appeals process, here is how it works in general:
After a veteran receives an initial rating decision, they may file
a Notice of Disagreement (NOD) with the Regional Office (RO). In
response, the RO will either reconsider the claim or uphold the
original adverse decision and issue a Statement of the Case (SOC). The
SOC outlines the decision, provides a list of the evidence reviewed,
and attaches a list of the laws and regulations applicable to the
decision. A veteran who is dissatisfied with the SOC may file a
substantive appeal within 60 days.
If a veteran chooses to file a substantive appeal, the claim is
sent to the Board of Veterans' Appeals (BVA), a semi-independent agency
within the VA, for review. This review is performed by VA attorneys and
Board Members, sometimes referred to as Veterans Law Judges, who may
allow the appeal, deny the appeal, or remand the case back to the RO
for further development. Pursuant to statute, appeals that are remanded
require ``expeditious treatment'' by the RO.
It is of note that, prior to 1988, the BVA's decision was
considered final, and was not subject to any form of judicial review.
In 1988, Congress passed, and President Reagan signed into law, the
Veterans' Judicial Review Act, creating the United States Court of
Appeals for Veterans Claims (CAVC), an independent Article I court with
exclusive review of denials from the BVA.
Just as a veteran aggrieved by a final decision of the BVA can
appeal to the CAVC, a veteran aggrieved by a final decision may appeal
to the Federal Circuit, and ultimately, the United States Supreme
Court. Appeals that are remanded through the Federal court system are
also statutorily required to receive ``expeditious treatment.''
Despite the statutory requirements, appealed claims are often
placed on the back burner in favor of initial claims. The 2012 BVA's
Report of the Chairman states that the average length of time between
the filing of an appeal and a decision by the Board is 1,040 days. If a
veteran subsequently appeals to the CAVC and the Federal Circuit, they
might wait nearly twice as long.
Thus, you can imagine this Committee's surprise to learn that
appealed and remanded claims were not to be included in VA's ``Oldest
Claim Initiative.'' Although VA stated that their priority is to
provide initial decisions to veterans who have been waiting for two
years or more, many veterans with appealed or remanded claims have been
waiting much longer than that.
Unfortunately, lengthy wait times are not the only problems
currently plaguing the appeals system. In March 2013, the Federal
Circuit issued a ruling stating that the VA acted unlawfully in 2011
when it promulgated a regulation that eliminated certain procedural and
appellate rights for veterans appearing before the BVA, and ordered VA
to show cause as to why sanctions should not be imposed. VA responded
to that order on May 20, 2013, with a path forward to restore these
rights to those veterans affected, and it is my hope that VA takes
veterans' due process and appellate rights more seriously in the
future.
Our Nation's veterans deserve an appellate system that promptly and
accurately adjudicates claims that may have been incorrectly decided by
VA initially, and that gives appropriate and timely consideration to
remanded matters.
The veterans' appellate process is a multi-tiered process that
spans from the RO, to the BVA to the CAVC and beyond.
It is my hope that by bringing witnesses from each stage in the
process together at today's hearing, that we may better understand the
role each plays in the process, and work together in a more efficient
manner to process veterans' appeals.
And, before I conclude my remarks, I want to highlight that the
role of technology in the appeals process cannot be ignored. There has
been much discussion on the need for seamless technological
capabilities between DoD and VA.
Similarly, VA must ensure that the technology that it has
developed, the Veterans Benefits Management System, or VBMS, is
equipped to not only meet the needs of ROs, but also those needs of the
BVA. Although the VBMS development team has met with BVA staff, we have
heard conflicting reports as to how well the BVA's needs have been
received and incorporated into VBMS to date. I encourage VA to continue
communications with the Board to ensure that VA's technology upgrades
also meet their needs.
With that, I would like to welcome our witnesses. Today's
scheduling was slightly compressed due to various events. Ordinarily,
we would hold separate panels, with VA on one panel, and the Court on
another. However, due to time considerations today we are seating a
sole panel, and the order of the testimony is meant to be indicative of
the appeals' process.
We will start at the Regional Office and work up to the Court of
Appeals for Veterans Claims.
First, we have Mr. Keith Wilson, the Director of the Roanoke
Regional Office, is here on behalf of the Veterans Benefits
Administration.
Then there is Ms. Laura Eskenazi (Ess-kuh-nas-ee), the Principal
Deputy Vice Chairman, is here representing the Board of Veterans'
Appeals.
Finally, in terms of VA representation, we have Mr. Ronald S.
Burke, Jr., Director of the Appeals Management Center in the National
Capital Region Benefits Office.
Then, we will hear from Chief Judge Bruce Kasold, who is here
representing the U.S. Court of Appeals for Veterans Claims.
We also have numerous statements for the record that have been
submitted from various organizations, and I would like to thank all of
those who submitted them for today's hearing.
With those introductions complete, I am eager to hear from all of
our witnesses on how we may improve the overall process for veterans'
appeals. Thank you all for being with us today.
I now yield to our Ranking Member for her opening statement.
Prepared Statement of Hon. Dina Titus
Thank you, Mr. Chairman, and thank you for holding this hearing on
this important topic.
I would like to thank the witnesses for coming today to appear
before the Subcommittee. The topic for this hearing focuses on the
growing backlog of appeals pending with the VA and the Board of
Veterans Appeals.
I routinely hear from veterans in Southern Nevada that are waiting
far too long to receive a decision on their appeals. Improving the
speed and efficiency of both the claims process and the appeals system
will be a small step to recognize these men and women for their
sacrifices.
We often hear from the VA about a transformation at the Department
and it is important that we start to see results for our veterans. It
was promising to hear one VA official suggest that the VA is at the
``tipping point'' of breaking the claims backlog. We all hope this is
in fact the case; however the VA has not yet provided us with clear
information to indicate that the move to VBMS and the new processing
system will indeed provide all the gains in efficiency that have been
promised
I know that veterans in Las Vegas do not feel like we have reached
a tipping point. Veterans in Nevada and four counties in California are
served by the Reno Regional office. The average amount of time to
complete a claim at the Reno VA Regional Office is 530 days, far from
the 125 day goal set by Secretary Shinseki.
I will again request that the VA provide this Subcommittee with
benchmarks for individual RO's as they move to meet the 125 day goal. I
have repeatedly made this request and have not yet received this
information from the VA. More needs to be done, and it needs to be done
faster.
I am very encouraged that there has been progress made on this
issue at some RO's. In the past 45 days, as a result of providing
provisional ratings and clearing the inventory of old claims, the total
number of pending claims has dropped by 44,000, and the number of
backlogged claims has dropped by 74,000. I also applaud the VA for
rolling out VBMS at all 56 VA Regional Offices more than 6 months ahead
of their original goal.
I am pleased with this progress, but am concerned that an increased
focus on claims has led to a decreased focus on veterans' appeals. VBA
has surpassed a quarter million claims awaiting an appeal and BVA has
45,000 claims pending. The average length of an appeal completed in
FY2012 was an astonishing 903 days. Currently 45% of cases sent to the
BVA are referred back to the VBA for additional evidence or due to
errors on the part of the VBA. To veterans waiting for an update on
their appeal, this all adds up to an even longer wait for the benefits
they deserve.
I am pleased to hear there has been progress in reducing avoidable
remands but there is still room for improvement. However, what really
concerns me is that assuming that VBA does work through the current
backlog by 2015; this could lead to a significant number of appeals. By
BVA's projections, the workload will more than double by FY17, from
approximately 45,000 claims today to more than 102,000. This is further
compounded by the fact that we have been made aware that VBMS is not
ready for use by the BVA.
I strongly urge the VA to take the necessary steps to ensure that
VBMS is also functional for the needs of the BVA as quickly as
possible. It is counterproductive to send electronic files to the BVA
in a format that will result in further delay for our veterans. The
intent of this transformation from this Subcommittee's perspective was
not to rob Peter to pay Paul. So let's not resolve the backlog at the
VBA only to create a new one of appeals at the Appeals Management
Center and the Board of Veterans Appeals.
I look forward to your testimony and hope to hear recommendations
that are consistent with producing the best outcomes for our veterans
appealing RO decisions.
Thank you, Mr. Chairman, and I yield back.
Prepared Statement of Laura H. Eskenazi
Good afternoon, Chairman Runyan, Ranking Member Titus, and Members
of the Subcommittee. I am accompanied today by Mr. Ronald S. Burke,
Jr., Director of the Appeals Management Center and the National Capital
Region Benefits Office, Veterans Benefits Administration (VBA). Thank
you for inviting me to speak to you today on the important topic of the
Veterans benefits appeals `system, and specifically what the Department
of Veterans Affairs (VA) is doing to make the appellate process more
timely and efficient for our Nation's Veterans and their families.
Overview of the Appellate System and the Role of the Board
The Veterans disability benefits appeals adjudication system, which
includes all compensation claims, operates in two stages. The majority
of the appellate process is conducted at the VBA regional office (RO)
level before the case is transferred to the Board of Veterans' Appeals
(BVA or Board) for a final agency decision. An appeal is initiated at
the VBA RO level by the Veteran filing a ``Notice of Disagreement''
(NOD) expressing dissatisfaction with one or more matters in the
initial VBA decision. VBA then reviews the record, conducts any
additional evidentiary development required by law, and issues a second
decision called a ``Statement of the Case'' (SOC), which contains a
summary of the evidence, a summary of the applicable laws and
regulations, and a discussion of the reasons for the decision. If the
Veteran is dissatisfied with the SOC, the Veteran may file a formal
appeal at VBA, called a ``Substantive Appeal,'' (VA Form 9). If there
are any changes in the record, such as new evidence, VBA may need to
issue one or more additional decisions, called a ``Supplemental
Statement of the Case.'' When VBA completes work on the appeal, VBA
will certify and transfer the appeal to the Board for a final appellate
decision. The Board handles appeals from various parts of VA, but 97
percent of the Board's workload comes from compensation and pension
claims that were initially adjudicated by VBA. The remainder of appeals
before the Board comes from other VA offices such as the National
Cemetery Administration, the Veterans Health Administration (VHA), and
VA's Office of General Counsel (OGC). The Board's mission, as defined
by statute, is ``to conduct hearings and dispose of appeals properly
before the Board in a timely manner'' while providing Veterans with
``one review on appeal to the Secretary.'' In practical terms, this
means that the Board has a very unique role in VA, in that it provides
a ``de novo'' or ``new'' look at each case being appealed from the ROs,
which includes a top-to-bottom review of every single piece of evidence
in the record: evidence that the Veteran submits, evidence that VA has
in its possession relevant to the claim, and evidence that VA is
required to obtain on the Veteran's behalf. The decision made by the
local RO receives no deference from the Board - in other words, the
Board is not charged with assessing the RO's decision; rather, the
Board takes an entirely new look at the record. Each decision of the
Board must contain written findings of fact and conclusions of law, as
well as reasons or basis for those findings and conclusions, on all
material issues of fact and law presented. This de novo review is
consistent with the pro-claimant protections of the benefits claims and
appeals system, which includes a multitude of safeguards for the
Veteran built in at each step of the process.
The Board's workload and output are substantial with case receipts
of in fiscal year 2012 of 49,611 n fiscal year 2012, the Board issued
44,300 decisions, 28.4% of which were grants of benefits, and conducted
12,334 hearings. The Board's cycle time for fiscal year 2012 was 117
days, which represents the time from when an appeal is physically
received at the Board until a decision is reached, excluding the time
the case is with a Veterans Service Organization (VSO) representative
for preparation of written argument. The Board is required by statute
to consider appeals in docket order, which requires that the oldest
appeals be worked first. Currently, the Board has a pending inventory
of 45,487 appeals. The oldest appeal is not defined by the date that
the appeal arrives at the Board - rather, the oldest appeal is defined
by the date that the Veteran completed the appeal at the local level -
sometimes long before the appeal reaches the Board's offices. This
means that Veterans who have been waiting the longest are the first to
receive action on their appeal from the Board.
The Board currently has over 300 staff counsel who are each
required to produce an average of three decisions per week on an annual
basis for 52 non-supervisory Veterans Law Judges and 12 supervisory
Veterans Law Judges. Each non-supervisory Veterans Law Judge is, in
turn, required to sign at least 752 decisions per year.
The amount of evidence associated with each appeal has been
steadily rising over the years, as has the number of issues per appeal,
which results in longer, more complex Board decisions explaining the
reasons and bases for VA's ultimate decision. In fiscal year 2012, the
average one-issue case included 2.13 binders of documentary evidence,
which is up from 5 years ago in fiscal year 2008 when it was 1.64
binders of evidence for a one-issue case. Each binder of evidence is
between 2-4 inches high, and does not include the evidence that is
currently part of each Veteran's Virtual VA record.
The number of issues per case has also increased over the past
decade. In fiscal year 2003, the number of issues the Board adjudicated
in each of its decisions averaged 1.86 issues per case. In fiscal year
2012, the average number of issues adjudicated per Board decision rose
to 2.43, resulting in a 30-percent increase in the number of issues
decided per Board decision in less than 10 years.
This means that the Board is deciding more issues, and reviewing
more evidence for each case it decides, than ever before. The Board
looks forward to VA's movement to a fully electronic appeals
adjudication system having efficiencies that will help VA to better
handle this burgeoning workload. This system will not change the
fundamental statutory requirement that the Board fully review what is
becoming an ever-growing amount of evidence and issues for each appeal.
The Board's decisions are also growing increasingly complex due to
activity from the Court of Appeals for Veterans Claims and the Federal
Circuit. The Board's position on the front lines with the Courts means
that the Board has to adjust to an ever-changing legal landscape,
drafting decisions that look like dense legal briefs, while at the same
time drafting decisions that are understandable to the Veterans we
serve.
Even with growing complexity, Veterans have enjoyed an
unprecedented level of success at the Board in recent years. As with
VBA, claims are denied only when there is no other option based upon
the law and the evidence. If a claim cannot be granted and there is an
indication that additional, favorable evidence may still be obtained,
then the Board will remand the claim to preserve the Veteran's chance
at a favorable outcome. In fiscal year 2012, the Board allowed more
benefits for Veterans and denied fewer claims than ever before. Of the
44,300 appeals decided by the Board in fiscal year 2012, 28 percent
were allowed and slightly less than 23 percent were denied. That same
year, over 45 percent were remanded to ensure that all procedural
protections have been provided, in terms of additional evidentiary
development to hopefully provide a chance of allowing a benefit for the
Veteran.
Challenges Resulting from Remands
Despite the success that has been achieved over the past several
years, many challenges remain as we seek to reduce the pending
inventory of appeals and increase efficiency within the process.
Remands in particular remain a challenge that VA is aggressively
addressing. By remanding a case, the Board sends the appeal to the
Agency of Original Jurisdiction (AOJ), most typically the VBA's Appeals
Management Center (AMC), for the completion of additional evidentiary
development. Remands are directly tied to procedural protections built
into the Veterans benefits appeals system to ensure that no stone is
left unturned and that Veterans benefit from maximum development of the
evidentiary record. Although remands add time to appeals adjudication,
they are in large part the result of VA's efforts to do everything
possible to get it right for the Veteran and ensure that no potentially
favorable evidence is overlooked.
There are essentially two kinds of remands in the VA appeals
system, those that are avoidable and those that are unavoidable.
Avoidable remands are remands resulting from inadequate evidentiary
development at the AOJ level before certification and transfer of the
appeal to the Board. In other words, some deficiency in evidence
gathering on the part of VA required the Board to remand the case to
the AOJ. Unavoidable remands, however, are not the result of any
mistake on the part of VA. Rather, these remands are a result of the
pro-claimant open record, which allows development of new evidence up
until the point that a final decision is signed and mailed to the
Veteran. Unavoidable remands are often the result of additional
development that VA must undertake as a result of the Veteran's
identification of additional evidence after the appeal has been
transferred to the Board, or the submission of new evidence by the
Veteran, which in turn triggers additional development as a result of
VA's statutory duty to assist. Unavoidable remands are also often the
result of the Veteran's introduction of a new theory of entitlement for
the first time at the Board level, which also requires evidentiary
development.
Such remands are the result of significant procedural protections
built into the Veterans benefits system, which can result in additional
time needed to adjudicate appeals, but also ensures every opportunity
to gather evidence favorable to the Veteran. Indeed, many remands are
the result of VA's efforts to secure evidence to fairly decide the
claim. Unavoidable remands in particular are the result of the unique
nature of the Veterans benefits system, which allows for the submission
of evidence throughout the VA appeals process. This open record system
is virtually unparalleled as compared to other courts or areas of
administrative law, and contributes significantly to delays in the
system.
A large majority of remands in the system are unavoidable. As of
June 2013, 64 percent of Board remands have been unavoidable and only
36 percent have been avoidable. Over the past several years, there has
been a steady decline in the number of avoidable remands and a steady
increase in the number of unavoidable remands. By comparison, in fiscal
year 2005, when VA first began tracking this data, 60 percent of
remands were avoidable and only 40 percent were unavoidable. This
steady improvement is strong evidence that VA's continued efforts to
reduce the number of avoidable remands are paying dividends for
Veterans.
Although a large majority of remands in the VA appeals system are
unavoidable, VA continues to take aggressive action to reduce the
number of avoidable remands. Both VBA and the Board have implemented a
Joint Training Initiative designed, in large part, to reduce the number
of avoidable remands. Training materials and presentations designed as
part of this effort are crafted with input from both Board and VBA
subject matter experts, and include feedback from VA's OGC. Many of the
training materials produced as part of this effort are keyed to address
the top reasons for remands and recent trends in Veterans' law.
The adequacy of medical examinations and opinions, such as those
with incomplete findings or supporting rationale for an opinion, has
remained one of the most frequent reasons for remand. VA's statutory
duty to assist Veterans in obtaining evidence needed to substantiate
their claim requires that a medical examination and opinion be
provided, unless the evidence already in the record is legally adequate
to decide the claim. Such examinations are generally performed by VHA
clinicians. To combat the challenge of remands for examinations and
opinions, the Board has partnered with VHA's Office of Disability and
Medical Assessment (DMA) in an effort to improve the compensation and
pension examination process and enhance the quality of examination
reports provided by VHA physicians. The Board has welcomed
representatives from DMA to the Board's facility on numerous occasions
over the past several years to discuss matters relating to VA
examinations and develop better training modules for physicians. The
goal of these training efforts is to produce examinations that are
medically and legally adequate so that remand for supplemental medical
examinations and opinions can be avoided.
VA also anticipates that full utilization of the Disability
Benefits Questionnaire (DBQ) process will result in fewer remands due
to inadequate medical examinations. DBQs have been specifically
designed to directly address the requirements of the VA Schedule for
Rating Disabilities, and ensure that all medical information needed to
decide claims and appeals is elicited from the examiner. The Board
continues to work with our partners at VHA and VBA to further refine
the DBQs in line with legal requirements, and make them an even more
effective tool in reducing the number of avoidable remands.
The cases that are being remanded by the Board to the AMC are being
worked faster than ever. In 2009, remanded cases remained pending at
the AMC for nearly 400 days before being recertified to the Board. That
number has dropped to only 115 days pending today, a dramatic 71-
percent decrease. If current trends continue as we anticipate, the
number of days remands remain pending at the AMC will drop to below 100
by the end of the fiscal year. This represents a huge improvement in a
very short time.
VA Initiatives to Improve the Appeals System
VA is actively pursuing several initiatives to further improve the
appeals system and reduce wait times for Veterans. Among those efforts
will be the full implementation of the Veterans Benefits Management
System (VBMS) at each level of the appeals system, including the Board.
VBMS, along with several other people, process, and technology
initiatives, will help us eliminate the backlog. The Board has been
working with our partners at VBA and VA's Office of Information and
Technology (OIT) for over 3 years to define the Board's business
requirements that will need to be programmed to maximize VBMS
efficiency for appeals. These efforts are a continuation of the Board's
long history of working with our VA partners on paperless appeals.
Nearly all Board employees directly working appeals have completed
initial VBMS training, and we anticipate that all Board staff will have
VBMS access this summer.
VBMS will ensure that Veterans claims files are protected from
damage or loss and are securely backed up. The VBMS system will also
save considerable time and money currently spent mailing claims files
back and forth between parts of VA, specifically between the Board and
the various VA ROs. VBMS will also allow different offices in VA to
work different claims at the same time, eliminating delays currently
spent temporarily transferring claims files between different parts of
VA and the down-time spent while another office works on a claim.
Although VBMS will result in these and several other administrative
efficiencies, it will not change VA's duty to assist the Veteran in the
development of the evidentiary record, nor will it alter the Board's
duty to perform a comprehensive de novo review of each and every piece
of evidence in the record on appeal to render a fair decision. Whether
the record is paper or electronic, the Board will still be obligated to
look at every page in it to make sure that every favorable piece of
evidence is identified and given due consideration.
The Board is also leveraging technology in several other ways. The
Board has begun the process of scanning all new Board hearing
transcripts, mail, and certain types of representative argument into
Virtual VA to make the eventual transition to VBMS easier, while
further saving both money and time needed to print documents and
associate them with the paper claims file.
Both the Board and VBA have also converted to a virtual docket for
scheduling Board hearings. The virtual docket system replaces a
completely paper-based system for hearing scheduling that was often
utilized very differently across different offices. The virtual docket
system saves considerable administrative time associated with
scheduling hearings, ensures uniformity in scheduling practices across
various offices, and allows for greater scheduling transparency so that
available hearing dates and times can be quickly identified by VA staff
regardless of physical location.
The Board has also completed major technological upgrades to its
video conference hearing equipment over the past several years. This
includes the purchase of high-definition video equipment, a state-of-
the art digital audio recording system, and significantly increased
video conference hearing capacity. As a result of these improvements,
we have also expanded the video conferencing system for hearings to
other strategic satellite sites in the continental United States,
Puerto Rico, Guam, American Samoa, and the Philippines to support
Veterans living in remote areas.
The Board is holding more video conference hearings than ever
before to fully capitalize on the critical upgrades to its video
conference hearing technology. Thus far in fiscal year 2013, slightly
over half of the Board's hearings are being held by video conference.
This is an increase from fiscal year 2012, where only 39 percent of the
Board's hearings were held by video conference.
VA hopes to continue this trend toward greater use of video
conference hearings, but current statutory restrictions prevent us from
using this important technology to the fullest. That is why VA fully
supports the passage of Sec. 202 of the S.928, the ``Claims Processing
Improvement Act of 2013,'' that was recently introduced in the Senate
by Chairman Sanders. Section 202 would allow for greater use of video
conference hearings, would potentially decrease hearing wait times for
Veterans, enhance efficiency within VA, and better focus Board
resources toward issuing more final decisions.
The Board has historically been able to schedule video conference
hearings more quickly than in-person hearings, saving valuable time in
the appeals process for Veterans who elect this type of hearing. In
fiscal year 2012, on average, video conference hearings were able to be
held almost 100 days sooner than in-person hearings. Section 202 would
allow both the Board and Veterans to capitalize on these time savings
by giving the Board greater flexibility to schedule video conference
hearings than is possible under the current statutory scheme.
Historical data also shows that there is no statistical difference
in the ultimate disposition of appeals based on the type of hearing
selected. Veterans who had video conference hearings had an allowance
rate for their appeals that was virtually the same as Veterans who had
in-person hearings, only Veterans who had video conference hearings
were able to have their hearings scheduled much more quickly. Section
202 would, however, still afford Veterans who want an in-person hearing
with the opportunity to specifically request one.
In short, Sec. 202 would result in shorter hearing wait times,
better focus Board resources on issuing more decisions, and provide
maximum flexibility for both Veterans and VA, while fully utilizing
recent technological improvements. VA, therefore, strongly endorses
this proposal. In addition to the legislative proposal on video
conference hearings, VA has included four other legislative proposals
related to improving the appeals process in VA's FY 2014 budget
submission and we appreciate Congress' continued consideration of those
measures. In summary, those proposals are as follows: reduce the period
of time for to file an initial appeal from one year to 180 days;
clarify that a timely filed Substantive Appeal (VA Form 9) is a
jurisdictional requirement for BVA review; simplify the content
requirements of BVA decisions; alter the requirements for obtaining
fees under the Equal Access to Justice Act (EAJA) to align such fees to
an actual award of benefits for the Veteran.
The Board also played a key role in the VBA Appeals Design Team
(discussed below), which looked at finding efficiencies in the appeals
processing at the RO level. The Board's Chief Quality Review Officer
was an active participant on that design team. As part of the pilot,
the Board reviewed 50 appeals that had been through all facets of the
pilot to assess the readiness of the appeals for certification to the
Board for a final decision. The results were encouraging, as 80 percent
of the cases presented to the Board in that pilot were deemed ready for
certification, with only 20 percent being identified as requiring
additional action. In addition to these efforts, the Board is also
pursuing a lean six sigma study of how it produces appellate work in
its offices to identify further efficiencies in processes, in order to
speed up the decision drafting process.
Appeals Design Team Pilot Program
VBA and the Board have conducted an Appeals Design Team pilot,
looking at ways to reduce the amount of time it takes to process
appeals and improve customer service and timeliness. Using a lean six
sigma approach, initiatives were developed to improve quality,
primarily through in-process reviews and the use of a certification
checklist.
A key recommendation in the pilot is standardizing the Notice of
Disagreement (NOD). The purpose of this standardization was to improve
communication with the Veteran at the front-end of the appeals process.
Also, the standardized form allows VBA staff to easily identify a
submission as an NOD for ease, speed, and accuracy of processing. The
use of the NOD form has been responsible for greatly lowering the
amount of time needed to prepare a Statement of the Case and ultimately
certify an appeal.
Because claims and appeals processors often must sort through
lengthy statements that include both NODs and new disability claims,
the standardized form facilitated more accurate and faster processing
of NODs while significantly reducing the number of letters VA must
otherwise send to an appellant to request clarification of the issue
under appeal. To accommodate those filing claims online, the appeals
form will be uploaded to eBenefits so that Veterans have a prescribed
form to assist with the filing of their appeals.
In addition to standardizing the NOD, the Appeals Design Team
tested the effectiveness of a local waiver form, allowing the local RO
to expedite the certification of the Veteran's appeal to the Board.
This recommendation had an extremely positive impact on certifications
to the Board.
In addition, specific collaboration was undertaken with the VSOs to
ensure we captured their best ideas and to guarantee cooperation from
the onset. A member of the VSO community was, in fact, a member of the
Appeals Design Team. As part of the ongoing improvements to the appeals
process, Decision Review Officers and VSOs interact early on in the
process, as we believe communication is key to appeals resolution at
the earliest possible point.
VA's Recent Initiative to Address Old Claims
VBA's performance in the appeals process will not be affected by
the recent initiative to address VA's oldest claims, nor will appeal
rights be withheld for any claimant whose case is part of the
initiative. For ready-to-rate cases in which all the evidence is
available, full appeal rights will be provided as usual at the time of
the decision. Provisional decisions will also be made based on the
available evidence in the claims folder, which will allow VA to more
quickly decide the oldest claims in the inventory and expedite delivery
of benefits to claimants. In these cases, Veterans will be afforded
full appeal rights no later than one year after the provisional
decision or at an earlier point if the Veteran requests a final
decision or if all outstanding evidence is received prior to the end of
the 1-year provisional window.
As of June 13, 2013, we have reduced the number of claims over two
years old that needed to be worked under this initiative from 62,180 at
the beginning of the initiative on April 19, 2013, to 6,305 - a 90%
reduction. We have also seen a 7.5% reduction in the number of claims
pending between one and two years, from 210,714 to 194,925 claims.
Conclusion
VA is working aggressively to reduce the pending inventory of
appeals in an increasingly complex legal landscape. New training
efforts between the VBA, VHA, and the Board, together with full
utilization of DBQs, will help to further reduce the number of
avoidable remands. At the same time, efficiencies gained through the
introduction of VBMS will serve to lessen the administrative burdens in
the claims and appeals system to better focus resources on issuing
decisions more quickly and accurately than ever before.
Lessons learned from the Appeals Design Team and increased use of
video conferencing technology for Board hearings will add valuable
efficiencies into the system and result in positive change for
Veterans. However, for Veterans to achieve the maximum benefit from
VA's significant investment in state-of-the art video conferencing
technology, full Congressional support of Sec. 202 of the Veterans
Claims Improvement Act of 2013 is needed.
This concludes my testimony. I would be happy to address any
questions from Members of the Subcommittee.
Prepared Statement of Hon. Bruce E. Kasold
MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE SUBCOMMITTEE:
I am pleased to appear before you today, and I commend the
committee's effort in working to ensure that veterans receive decisions
on their claims in the most accurate and efficient manner possible. My
colleagues and I at the United States Court of Appeals for Veterans
Claims are constantly striving to provide fair, comprehensive, and
prompt judicial review of decisions appealed from the Board of
Veterans' Appeals to the Court.
To this end, a little over five years ago, my predecessor, Chief
Judge Greene, noted an ever increasing number of appeals being filed at
the Court and requested authorization for two additional judges,
bringing the total number of active judges to nine. I am happy to
report that as of the end of last year, all nine positions are filled.
It takes about one year for a judge to fully get up to speed, but we
are in a great position to handle our current caseload. Of interest,
the number of appeals filed last year dropped slightly from just under
4,000 in fiscal year (FY) 2011 to just under 3,700 in FY 2012. This is
still a large number of appeals coming in - in fact 1,500 more per year
than we were averaging 10 years ago. Last year the Court as a whole
disposed of over 4,300 appeals, so I can proudly say that our number of
appeals OUT exceeded the number coming IN by 700. Indeed, the Court
remains one of the busiest federal appellate courts based on the
numbers of appeals filed and decided per active judge. In addition to
appeals, the Court receives petitions pursuant to its authority to
issue extraordinary writs in aid of its jurisdiction under the All
Writs Act, (28 U.S.C. Sec. 1651(a)), and applications for
representation fees and expenses authorized under the Equal Access to
Justice Act (EAJA) (28 U.S.C. Sec. 2412(d)). With nine judges on board
and with our single-judge decision authority, I do not anticipate
recalling more than one of our retired Senior Judges this year.
About five years ago the Court modified its procedures to require
that most cases involving representation go through a staff
conferencing process with one of our Central Legal Staff (CLS)
attorneys. This requirement directs the appellant to identify the
specific contested issues to counsel for the Secretary of VA, and then
the parties participate in a conference conducted by a CLS attorney,
where the issues are discussed and the parties attempt to come to an
agreed resolution. On average, about 65-70% of our cases are
conferenced, and of those, approximately 50% end up being resolved,
generally with an agreement to remand the claim for additional
development.
In trying to further reduce the average span of time it takes for
resolution of an appeal, when I became Chief Judge I identified two
main areas of un-programmed delay in our case processing. One was the
time it took our Central Legal Staff to prepare case summary and
research memoranda in advance of forwarding cases for judicial review,
and the other was the time it took to decide cases once they were
assigned for judicial review. I am pleased to state that with some
administrative adjustments and hard work by all, we have significantly
reduced the time it takes for most fully-briefed cases to get to
chambers, from an average of almost 120 days to 30 days. We also have
appreciably reduced the time from case assignment to decision by a
judge, with most decisions being issued within 90 days of assignment to
a judge. Panel cases, and cases stayed pending a panel decision are the
prime exception.
But, litigation is time consuming. Once an appeal is filed, 60 days
are allotted for the Secretary of VA to provide to the Court the Board
decision being appealed, and to serve on the veteran the record upon
which VA's decision was based. Time is built in for resolving any
disputes as to the record. When an appellant is represented from the
start, pre-briefing conferencing is ordered. If resolution is achieved
through the pre-briefing conference process the median time from filing
an appeal to issuance of an order effecting the agreed resolution is
about six months. When resolution is not reached, the appellant then
has another 30 to 60 days to file a written brief, the Secretary has 60
days to file a response brief, and the appellant has 14 days to file a
reply. Then, the Secretary has 14 days to file the Record of
Proceedings, which is in essence the distilled record that the parties
contend is relevant to their arguments. In the best case scenario, in
the sense that no delays or extensions have occurred, 245 days have
already lapsed at this point. The briefs and Record of Proceedings are
thereafter reviewed by CLS and prepared for transfer to chambers, which
as I noted is now accomplished on average within 30 days, and a
decision generally is rendered by a judge within 90 days thereafter.
We have examined whether the briefing process can be streamlined
further, but key parties representing the Secretary and counsel for
appellants have expressed their objection to shortening the time to
prepare their briefs - which time, by the way, is not substantially
different from the time provided in appeals to the other Federal
appellate courts. Nevertheless, this is an area that I will continue to
assess.
Also, in FY 2012, 44% of the appeals were filed by appellants
without representation, but the number of cases where the appellant
remained unrepresented at the time of decision dropped to 27%. There is
no specified time by which a pro se appellant may seek counsel, but
when a pro se appellant finds representation, that appeal generally
``re-starts'' in the sense that it goes through the pre-briefing
conferencing process or re-briefing is requested. The result often is
additional time added for the processing of those types of appeals. Of
further note, and of great impact, is the fact that over 5,000 motions
for extensions of time to file a brief or take some other action were
filed in FY 2012, about equally divided between appellants and the
Secretary. If each motion constitutes a request for an additional 45
days of processing time, it is easy to see how the life span of an
average appeal can grow significantly. This is another area that we
have monitored closely and continuously discuss with our practitioners.
As mentioned earlier, panel decisions take longer. Any judge can
send a case to panel so that complex, novel, or reasonably debatable
issues can be resolved by panel. Additionally, all dispositive
decisions are circulated among all of the judges prior to issuance. In
the case of single-judge decisions, if two judges believe the case
requires decision by a panel, it must be referred to a panel. This
process helps ensure that single judges do not make decisions that
should be the subject of precedential panel decisions. Further, once a
single-judge decision is issued, either party may request
reconsideration and/or panel review, and whenever a request for a panel
decision is made, a panel of three judges will review the appeal. Thus,
the Court's rules permit single-judge decisions in an effort to
promptly resolve cases, but safeguards exist to ensure that single-
judge decisions are supported by existing precedent, and those
safeguards add processing time.
Additionally, during the circulation of a draft opinion, there may
be a call for consideration of the matter by the full Court when it is
believed that the proposed opinion addresses issues of exceptional
importance or creates a conflict in the Court's jurisprudence that must
be resolved.
Following a final decision of our Court, an additional appeal to
the U.S. Court of Appeals for the Federal Circuit may be filed. The
Federal Circuit has jurisdiction to review our decisions that interpret
the law and regulations, but not those decisions that apply the law and
regulations to the facts of a particular case. Finally, following
review in the Federal Circuit, either party may seek review by the U.S.
Supreme Court by filing a Petition for a Writ of Certiorari. The
Supreme Court has considered a handful of our cases over the years. All
of these procedural safeguards can add to the processing time of an
appeal.
Relevant to today's hearing topic, over the past several years my
Chief Judge predecessor and I have testified and advocated that
Congress should establish a commission to evaluate the process of
appellate review of veterans benefits decisions and to make
recommendations on how to improve that system.
Our current system of judicial review of veterans benefits is
unique with that second layer of appellate court review as a matter of
right before one may seek review by the U.S. Supreme Court. That
structure may have been prudent when the Court was in its infancy, but
now, with 25 years of veterans jurisprudence, it seems time to consider
the added value of the second layer of federal appellate review. That
added layer comes at a cost to the system as a whole. Although each
tier of review affords veterans another ``bite at the apple'' so to
speak, which may be desirable to one who has been unsuccessful, that
added level of review also adds delay to the entire process before
finality is reached. The delay reaches not only the particular veteran
in the case on appeal, but all pending cases that may be impacted by
that decision.
Is the added layer adding value? In the words of Supreme Court
Justice Robert H. Jackson: ``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.'' Thus, I
continue to recommend that a commission be appointed to critically
review the costs and benefits of the current two-tiered system of
judicial appellate review by right. Such an independent commission
might identify beneficial changes to the current appellate structure
that could result in reduced time that veterans wait to have their
claims finally and fairly decided.
In closing, on behalf of the judges and staff of the Court, I
express my appreciation for your past and continued support, and for
the opportunity to provide this testimony today.
Executive Summary
For the first time ever the Court is fully staffed with
nine active Judges. I anticipate recalling only one retired Senior
Judge to service this year.
In FY 2012 the Court received 3,649 appeals and disposed
of 4,355. The Court is one of the busiest federal appellate courts
based on the number of appeals filed and decided per judge. We are
maintaining our productivity through the tireless effort and focus of
our entire Court's staff.
The Court continues to evaluate and modify its procedures
to streamline the judicial review process to the greatest extent
possible. To this end, our pre-briefing staff conference process has
been extremely successful in bringing the appellants and the Secretary
together to work out mutual resolutions of many appeals. On average,
about 65-70% of the Court's appeals are conferenced, and of those,
approximately 50% end up being resolved by agreement of the parties.
The Court has also made administrative adjustments to assist chambers
in providing prompt judicial review of fully briefed cases, and worked
with our central legal staff attorneys to streamline their case review
process. These efforts have gained efficiency and cut days out of
procedural development of claims, while preserving for each veteran who
appeals to the Court the right to a full and fair decision.
Despite the Court's efforts to streamline its appellate
review, the bottom line is that litigation is time consuming, and
affording parties due process adds to the overall wait for decisions on
appeals.
The Court continues to encourage appointment of a
commission to evaluate the costs and benefits of the unique three-
tiered federal appellate review system we have for veterans benefits
decisions.
Statements For The Record
PROFESSOR MICHAEL P. ALLEN
Chairman Runyan, Ranking Member Titus, and Members of the
Subcommittee:
Thank you for the invitation to submit this Statement in connection
with the Subcommittee's hearing concerning: ``Why Are Veterans Waiting
Years on Appeal?: A Review of the Post-Decision Process for Appealed
Veterans' Disability Benefits Claims.'' It is a distinct honor to have
been asked to provide some views about this incredibly important issue
for the men and women who have answered the call to serve the nation.
I am a Professor of Law at Stetson University College of Law in
Gulfport, Florida. In addition to serving as a full-time faculty
member, I am also Stetson's Associate Dean for Faculty Development and
Strategic Initiatives and the Director of the College of Law's Veterans
Law Institute. For the past eight years, I have had the pleasure of
studying the existing system for reviewing veterans' benefits
determinations at both the administrative and the judicial levels. In
addition to teaching in the area, I have had the pleasure of testifying
before the United States Senate Committee on Veterans' Affairs,
participating in the House of Representatives Veterans' Affairs
``Claims Summit: 2010,'' speaking to four judicial conferences of the
United States Court of Appeals for Veterans Claims, participating in
the judicial conference of the United States Court of Appeals for the
Federal Circuit, and addressing numerous veterans groups across the
country. I have also written a number of scholarly articles concerning
veterans law. \1\
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\1\ Michael P. Allen, Veterans' Benefits Law 2010-2013: Summary,
Synthesis, and Suggestions, ---- VET. L. REV. ------ (forthcoming 2013-
2014); Michael P. Allen, Commentary on Three cases from the Federal
Circuit and the Court of Appeals for Veterans Claims as We Approach
Twenty-Five Years of Judicial Review of Veterans' Benefits, 5 VET. L.
REV. 136 (2013) (hereafter ``Allen, Commentary''); Michael P. Allen,
Due Process and the American Veteran: What the Constitution Can Tell Us
About the Veterans' Benefits System, 80 U. CIN. L. REV. 501 (2011)
(hereafter ``Allen, Due Process''); Michael P. Allen, The Law of
Veterans' Benefits 2008-2010: Significant Developments, Trends, and A
Glimpse into the Future, 3 VET. L. REV. 1 (2011); Michael P. Allen, The
United States Court of Appeals for Veterans Claims at Twenty: A
Proposal for a Legislative Commission to Consider its Future, 58 CATH.
U. L. REV. 361 (2009) (hereafter `Allen, Legislative Commission'');
Michael P. Allen, Significant Developments in Veterans Law (2004-2006)
and What They Reveal About the U.S. Court of Appeals for Veterans
Claims and the U.S. Court of Appeals for the Federal Circuit, 40 U.
MICH. J. L. REFORM 483 (2007).
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I applaud the Subcommittee for addressing the serious issues that
are implicated by the delays associated with the review of veterans'
benefits decisions. There is no question that veterans and other
claimants face significant delays in the review of decisions denying
their claims. Such delays have real world effects on people's lives and
also run the risk of undermining public confidence in the system as a
whole. Anyone familiar with this area of law and policy has heard about
the ``hamster wheel'' on which many veterans find themselves. \2\ While
the term specifically refers to the process by which veterans' claims
bounce from one level of the system to another and back again though a
series of remands, \3\ for now my point is more generic. Any system in
which a common visual metaphor is of someone trapped in a mechanism in
which they run and run but go nowhere is a system that has a serious
problem to address. Fundamentally that is what the Subcommittee is
addressing and it is unquestionably important.
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\2\ See, e.g., Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006)
(Lance, J., dissenting) (discussing the ``hamster-wheel reputation of
veterans law'').
\3\ I discuss remands in more detail at several points in this
Statement. For an excellent discussion of the issue of remands I
suggest James D. Ridgway, Why So Many Remands?: A Comparative Analysis
of Appellate Review by the United States Court of Appeals for Veterans
Claims, 1 VET. L. REV. 113 (2009).
---------------------------------------------------------------------------
There are many groups and individuals who have intimate knowledge
of the working of the system by which benefits are awarded and reviews
of denials are accomplished. Representatives of the United States
Department of Veterans Affairs (VA), the Board of Veterans' Appeals
(Board), Veterans Service Organizations, and the private bar
representing claimants all bring expertise to the table about the issue
on which the Subcommittee is focused. I do not pretend to hold myself
out as having the ``on-the-ground'' level of knowledge as these groups
and individuals have. I have no doubt that their statements to the
Subcommittee will provide useful assessments and suggestions.
To be clear, my goal is not to duplicate the insights of the
various groups I have highlighted above. Rather, I seek to provide a
broader perspective on some of the systemic causes of delay in the
system as well as some potential approaches for reducing the delay. My
hope is that such a perspective will help those considering this issue
to step back to see the forest instead of merely considering the trees.
As I will explain below, I have come to believe that only a global
assessment of the current system with real participation by
representatives of all the relevant constituencies will affect long-
term and sustainable improvements in the system.
This Statement proceeds as follows. In Section I (at pages 3-10), I
provide a general (and basic) overview of the current system by which
veterans' benefits are awarded and reviewed. Of course, the Members of
the Subcommittee are well aware of this structure. In include this
discussion because I believe it is critical to reflect on the rather
complex structure that is in place because that structure is one of the
causes of delay. In other words, because those of us who work in the
area of veterans law are so familiar with the structure by which
benefits are awarded, we can often forget how unique (and complex) that
structure actually is.
Section II (at pages 10-15) draws on this discussion of the
veterans' benefits system to highlight the significant causes of delays
in appellate review of benefit determinations. As that discussion
illustrates, the problem of delay may be more complex than one would
imagine in part because many of the causes of delay stem from aspects
of the current system that, in the abstract, are meant to protect
veterans in the process. Thus, one needs to confront the possibility
that efforts undertaken to help veterans in connection with their
receipt of benefits could have negative consequences.
Section III (at pages 16-23) provides some suggestions for possible
reductions in these delays. As that discussion makes clear, I strongly
believe that the most likely means of achieving real reductions in such
delays lies in the creation of a Commission or other body to consider
the system from beginning to end. Short of such comprehensive action,
Section III describes more modest, although not necessarily
uncontroversial, steps Congress could take to the reduce delays caused
by the matters described in Section II. Finally, Section IV (at page
24) sets out a brief conclusion.
I. The Current System in Context
This Section sets the stage for the substantive discussion of the
causes of delays in appeals of benefits matters as well as some
potential solutions for that issue. It first considers the structure of
the current system by which benefits are awarded. It then briefly
highlights the workload in the system.
Structure of Current System
Until 1988, there was effectively no judicial review of
administrative determinations concerning the benefits to which veterans
and their spouses and dependants might be entitled under relevant law.
As the Supreme Court of the United States noted (quoting a
congressional report), the VA operated in ``splendid isolation.'' \4\
This state of affairs changed with the passage of the Veterans'
Judicial Review Act of 1988 (the ``VJRA''), Pub. L. No. 100-687, 102
Stat. 4105 (codified as amended in scattered sections of 38 U.S.C.).
The centerpiece of the VJRA was the creation of what is today the CAVC.
---------------------------------------------------------------------------
\4\ Brown v. Gardner, 513 U.S. 115, 122 (1994) (quoting H.R. Rep.
No. 100-963, pt. 1, p. 10 (1988)).
---------------------------------------------------------------------------
In order to assess the current state of appellate review of
veterans' benefits determinations, both administrative and judicial, it
is useful to step back and consider a high-level overview of the system
in place under the VJRA. Because the Subcommittee already has a deep
understanding of these matters, what follows is a general outline of
what is a far more detailed system.
A veteran wishing to receive a benefit to which she believes she is
entitled begins the process by submitting an application with one of
the VA's regional offices (RO). \5\ There is no time limit within which
a veteran must submit a claim for benefits. In other words, there is
nothing like a statute of limitations that is a familiar part of more
traditional civil litigation. If the veteran is satisfied with the
benefits awarded, the process is at an end. However, there are a number
of reasons why the veteran may be dissatisfied with the RO's decision.
\6\
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\5\ There are a number of benefits to which veterans and other
claimants may be entitled based on military service. These benefits
have their genesis in Title 38 of the United States Code. One of the
most important types of benefits is disability compensation based on
service-connected disabilities. By and large it is such service-
connection disability compensation on which I will focus in this
Statement.
\6\ For example, the veteran might have been denied a particular
benefit, been dissatisfied with the effective date of the benefit
awarded, or disagree with the rating assigned to a particular benefit.
---------------------------------------------------------------------------
When the veteran is dissatisfied with the RO's decision, she has
the option to pursue an appeal within the VA by filing a ``Notice of
Disagreement'' (NOD) with the RO. The NOD triggers the RO's obligation
to prepare a ``Statement of the Case'' (SOC) setting forth the bases of
the decision being challenged. If the veteran wishes to pursue her
appeal after receiving the SOC, she must file VA-Form 9 with the RO
indicating her desire that the appeal be considered by the Board. \7\
---------------------------------------------------------------------------
\7\ Congress provided that veterans are entitled to ``one appeal to
the secretary [of the Department of Veterans Appeals]'' when denied
benefits. See 38 U.S.C. Sec. 7104(a). That appeal in actuality is
taken to the Board.
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The Board bases its decision ``on the entire record of the
proceeding and upon consideration of all evidence and material of
record and applicable law and regulation.'' See 38 U.S.C. Sec.
7104(a). In addition to the material developed at the RO, the Board may
also conduct personal hearings with the veteran at which new evidence
may be added to the record. In other words, the Board's ``appellate
process'' is far more solicitous in terms of accepting new evidence
than is most appellate processes. A final Board decision concludes the
administrative process.
If a veteran is dissatisfied with a final Board decision, she may
elect to appeal that decision to the CAVC, which has exclusive
jurisdiction to review such matters. The Secretary may not appeal an
adverse Board decision. See 38 U.S.C. Sec. 7252(a). Congress created
the CAVC under its Article I powers. See 38 U.S.C. Sec. 7251. The CAVC
is comprised of judges appointed by the President with the advice and
consent of the Senate to serve fifteen-year terms. See 38 U.S.C. Sec.
7251(a), (b), (c). The CAVC has the ``power to affirm, modify or
reverse a decision of the Board or to remand the matter, as
appropriate.'' See 38 U.S.C. Sec. 7252(a). The CAVC is an appellate
body that Congress specifically precluded from making factual
determinations. See 38 U.S.C. Sec. 7261(c). The CAVC has ruled that
its jurisdiction is limited to denial of (or other dissatisfaction
with) individual claims determinations. Specifically, the CAVC has held
that it is without power to adjudicate class actions or other aggregate
litigation concerning more generic issues that may affect groups of
veterans. \8\
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\8\ See, e.g., American Legion v. Nicholson, 21 Vet. App. 1 (2007)
(en banc) (holding that court lacked jurisdiction to adjudicate claims
brought by an organization as opposed to an individual veteran);
Lefkowitz v. Derwinski, 1 Vet. App. 439 (1991) (rejecting contention
that court had the authority to adjudicate class actions).
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Any aggrieved party may appeal a final decision of the CAVC to the
United States Court of Appeals for the Federal Circuit (Federal
Circuit). See 38 U.S.C. Sec. 7292. Review of Federal Circuit decisions
is available by writ of certiorari in the Supreme Court. See 28 U.S.C.
Sec. 1254 (providing for Supreme Court appellate jurisdiction
concerning decisions of the courts of appeals). Review in these Article
III courts is limited by statute. Specifically, in the absence of a
constitutional issue, the Federal Circuit may review only legal
questions; it specifically is precluded from ruling on a factual
determination or on the application of law to the facts in a particular
case. See 38 U.S.C. Sec. 7292(d)(2).
Figure A summarizes the current procedures for considering
challenges to the determination of entitlement to veterans' benefits:
[GRAPHIC] [TIFF OMITTED] 82238.001
Something that is often overlooked when considering the current
system by which veterans' benefits are awarded and such decisions are
reviewed is that the system was not one designed from beginning to end
at the same time. Rather, it is the product of the addition of judicial
review on top of the pre-existing administrative system through the
VJRA. In other words, the two parts of the current system -
administrative and judicial - were simply grafted together in the late
1980s. Moreover, as mentioned above, the judicial review process itself
is unique in the way in which the various judicial actors interact with
one another. The bottom line is that it is not surprising that the very
structure of the system can lead to delays in the processing and review
of claims and appeals because the various parts of the system were not
consciously designed to in the most efficient manner.
The administrative portion of the process from the filing of an
application for benefits through consideration of an appeal by the
Board is meant to be one that is non-adversarial and pro-claimant. \9\
The Supreme Court recently reiterated that Congress has made clear its
intention that the administrative process is meant to be something
radically different from a traditional adversarial process of
litigation. \10\ For example:
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\9\ For a more comprehensive discussion of the non-adversarial
features of the administrative process, see Allen, Due Process, supra
note 1, at 507-511; Rory R. Riley, The Importance of Preserving the
Pro-Claimant Policy Underlying the Veterans' Benefits Scheme: A
Comparative Analysis of the Administrative Structure of the Department
of Veterans Affairs Disability Benefits System, 2 VET. L. REV. 77, 83-
92 (2010).
\10\ Henderson v. Shinseki, 131 S. Ct. 1197, 1200-07 (2011).
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The VA is required to provide certain notices to
claimants concerning what must be done to establish an entitlement to
benefits. Such notice includes ``any information, and any medical or
lay evidence, not previously provided to the Secretary that is
necessary to substantiate the claim.'' \11\
---------------------------------------------------------------------------
\11\ 38 U.S.C. Sec. 5103(a); see also 38 U.S.C. Sec. 3.159(b)
(adopting regulations implementing the statutory duty to assist).
---------------------------------------------------------------------------
Significantly, the VA has a statutory duty to assist
claimants in developing evidence to establish their claims. \12\
---------------------------------------------------------------------------
\12\ 38 U.S.C. Sec. 5103A.
---------------------------------------------------------------------------
As mentioned earlier, there is no statute of limitations
to file an application seeking benefits based on a service-connected
disability. \13\
---------------------------------------------------------------------------
\13\
---------------------------------------------------------------------------
See generally, Henderson.
Principles of res judicata have far less purchase in the
administrative system than they do in general civil litigation because
veterans seeking to revisit rejected claims have the ability to reopen
claims based on the submission of ``new and material evidence'' \14\ or
to attack the earlier decision by alleging that it was the product of
``clear and unmistakable error.'' \15\
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\14\ 38 U.S.C. Sec. 5108.
\15\ 38 U.S.C. Sec. Sec. 5109A, 7111. To establish clear and
unmistakable error in a decision, which can be done after the time to
appeal has passed, the veteran must show that (1) the decision was
incorrect because either the facts known at the time were not before
the adjudicator or the law then in effect was applied incorrectly, and
(2) the outcome would have been manifestly different if that error had
not been made. Russell v. PrincipiS, 3 Vet. App. 310, 313 (1992) (en
banc).
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Whenever positive and negative evidence on a material
issue is roughly equal, the VA is required to give to the veteran the
``benefit of the doubt'' with respect to proof of that issue. \16\
---------------------------------------------------------------------------
\16\ 38 U.S.C. Sec. 5107(b)). The classic CAVC case on the benefit
of the doubt doctrine is Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
---------------------------------------------------------------------------
The VA is required to ``sympathetically read'' a
veteran's claim documents. \17\
---------------------------------------------------------------------------
\17\ See e.g., Robinson v. Shinseki, 557 F.3d 1355, 1359-60 (Fed.
Cir. 2009); Comer v. Peake, 552 F.3d 1362, 1369-70 (Fed. Cir. 2009);
Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).
---------------------------------------------------------------------------
In terms of statutory interpretation, the Supreme Court
has adopted a ``rule that interpretative doubt is to be resolved in the
veteran's favor.'' \18\
---------------------------------------------------------------------------
\18\ Brown v. Gardner, 513 U.S. 115, 118 (1994).
---------------------------------------------------------------------------
The upshot of these statutory factors is that the administrative
process is quite different from what one is used to in the more
traditional adversary process. However, a more traditional adversary
process is precisely what one finds when one appeals from an
administrative determination to the judiciary process. When one reaches
the CAVC and thereafter the Federal Circuit, the landscape is one that
would be familiar to any lawyer - a traditional American adversarial
process. My point here is merely that the current process of appellate
review is a very odd one.
A final important consideration concerning the current structure of
the veterans' benefits system is the role of lawyers in terms of
representing claimants. For much of the history of the United States,
there was a limited role for lawyers in the veterans' benefits process.
To begin with, it was not until the enactment of the VJRA in 1988 that
there was judicial review (and judges are lawyers after all) of
benefits determinations. \19\ And it took until 2006 for Congress to
allow lawyers charging a fee to represent claimants prior to a final
Board decision. \20\ Thus, while the nation's commitment to providing
benefits to its veterans is not new, the integration of lawyers in a
meaningful way into that system is still in its infancy. There is no
question that the integration of lawyers into a non-adversarial process
has been a challenge and that challenge has caused some delay in the
process of administrative appellate adjudication.
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\19\ Pub. L. No. 100-687, 102 Stat. 4105 (codified as amended in
scattered sections of 38 U.S.C.).
\20\ See 38 U.S.C. Sec. 5904(c)(1), enacted as part of the
Veterans Benefits Health Care, and Information Technology Act of 2006,
Pub. L. No. 109-461, tit. I, Sec. 101(h), 120 Stat. 3403, 3408.
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Workload in the System
Before leaving the general description of the structure of the
veterans' benefits system, one should not discount the reality that
every stage in the process the current system operates under a
staggering workload. Both this Subcommittee and its counterpart in the
Senate have held numerous hearings over the past few years addressing
this very real problem. There is no need here to dwell upon the
statistics at the various adjudicatory levels in the process. For
present purposes, the summary below is sufficient to establish that the
system is operating with what can only be described as crushing numbers
of claims and appeals:
Matters Before the Board
For fiscal year 2011, the Board physically received 47,763 appeals.
\21\ During this same period, the Board disposed of 48,588 appeals.
\22\ Finally of note, during fiscal year 2011, there were 122,663 NODs
filed concerning RO decisions. \23\
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\21\ See Board of Veterans' Appeals, Report of the Chairman, Fiscal
Year 2011, at 15 available at http://www.bva.va.gov/docs/Chairmans--
Annual--Rpts/BVA2011AR.pdf.
\22\ Id. at 21.
\23\ Id. at 20.
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Matters Before the CAVC
The most recent statistics available concerning the CAVC's workload
are for fiscal year 2011, from October 1, 2010 to September 30, 2011.
\24\ During this period, there were 4,086 appeals and petitions filed
with the court. \25\ The workload of the court is even greater when one
considers dispositions. In fiscal year 2011, there were 7,562
dispositions of one form or another constituting 4,620 appeals, 167
petitions, 2,517 applications under the EAJA, \26\ and 258 requests for
reconsideration or panel review. \27\ In terms of how those decisions
were rendered, the court reported the following: \28\
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\24\ See Annual Report, United States Court of Appeals for Veterans
Claims, October 1, 2010 to September 30, 2011 (Fiscal Year 2011),
available at http://www.uscourts.cavc.gov/documents/FY--2011--Annual--
Report--FINAL--Feb--29--2012--1PM--.pdf.
\25\ Id. There were 3,948 appeals and 137 petitions filed. The pro
se filing rate remains high with 54% of appeals and 61% of petitions
being filed by pro se litigants. Id.
\26\ EAJA refers to the Equal Access to Justice Act, 28 U.S.C.
Sec. 2412(d).
\27\ CAVC 2011 Annual Report, supra note 23. In terms of the pro se
rate at disposition, 24% or appellants in appeals and 50% of
petitioners for petitions remained pro se. Id.
\28\ All of the statistics presented here are from the 2011 Annual
Report. Id.
4,742 matters were resolved by the Clerk of Court;
2,661 matters were resolved by a single judge;
149 matters were resolved by a panel; and
10 matters were resolved by the court sitting en banc.
Matters Before the Federal Circuit
In fiscal year 2012 (October 1, 2011 to September 30, 2012), the
most recent period for which statistics are available, there were 189
appeals filed in the Federal Circuit originating in the CAVC. \29\ This
accounts for approximately 14% of the matters filed at the Federal
Circuit. During this same period, the court resolved 193 matters
originating in the CAVC, also amounting to approximately 14% of
terminations. \30\
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\29\ Table B-8, U.S. Court of Appeals for the Federal Circuit -
Appeals Filed, Terminated, and Pending During the Twelve-Month Period
Ended September 30, 2012, available at http://www.cafc.uscourts.gov/
images/stories/the-court/statistics/Appeals--Filed--Terminated--and--
Pending--2012--REV.pdf.
\30\ Id.
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Having described the current structure of appellate review of
veterans' benefits determinations and well as the workload of the
system, this Statement now turns to the causes of delay in that system
and some possible approaches to reducing that delay.
II. Some Thoughts About the Causes of Delays in Resolution of Appeals
The previous Section described the current structure of the system
by which veterans' benefits are awarded and reviewed. The purpose of
that discussion was to remind us all of the unique nature of that
system. In this Section, I build on that discussion with a focus on
some of the major, systemic causes of the delays experienced by
claimants in the review of benefit claims. I highlight four such
systemic causes of delay, causes that in my view are often overlooked
in the discussion. Those four areas are: (1) Congress' amazing
generosity to veterans and their families; (2) the ad hoc development
of the veterans' benefits system that led to its current structure; (3)
the wide array of procedural protections provided to veterans; and (4)
the complex nature of the law underling the provision of veterans'
benefits.
Before turning to a discussion of each of these major causes of
delay, two overarching points are important to note. First, I wish to
note that I do not believe that anyone involved in the process by which
veterans seek and contest denials of benefits intentionally causes
delay. In other words, I firmly believe that every part of the system
has as its goal the prompt provision of benefits to those claimants
entitled to receive them. This is not a situation in which we have
``bad actors'' to root out.
Second, when one considers the causes of delay I have identified,
it should be clear that so long as the goal of providing every possible
advantage to veterans remains operative, delays in adjudication are
going to be inevitable. When one provides a breathtakingly broad range
of benefits to a group provided extraordinary procedural protections
and those benefits are administered by a giant bureaucracy, the process
of receiving benefits will be long in any objective sense. This is not
to say that the current delays the Subcommittee is considering are
acceptable. It is just to make clear that there is a cost to the
positive attributes of the system and that cost is some measure of
delay.
With these caveats clearly presented, the balance of this Section
considers in some additional detail the causes of delay I have listed
above. Section III turns to potential approaches to dealing with that
delay.
The Generosity of Congress
There is nearly universal agreement that the nation owes an
incredible debt of gratitude to the men and women who choose (or who
were selected to) serve in the armed forces. They make (or made) it
possible for the entire country to live the extraordinary lives we get
to live. And Congress has recognized the service these men and women
have provided by providing an extraordinarily broad range of benefits
to which they are entitled. These benefits include disability
compensation, life insurance, home loans, and educational benefits
among many others. And while I understand that the current focus of the
Subcommittee is on the appellate process, the reality is that the more
initial claims that are made the more appeals will follow as a matter
of logic.
In my estimation, Congress' decision to make the broad range of
benefits to veterans and their families is the right thing to do as a
matter of policy. But that correct and honorable decision comes with a
cost. That cost is the necessity to have a system by which those
benefits are administered.
In addition to the range of benefits, Congress' generosity has
extended to the time within such benefits may be sought. While some
benefits have a time limit, one of the most significant benefits does
not - service-connected disability compensation. For that benefit, for
example, a veteran may seek compensation for a service-connected
disability at any time. The result is certainly pro-claimant but the
resolution of claims filed twenty, thirty or even forty years after a
person's service can be time-consuming.
Finally, the management of the wide array benefits Congress has
made available to veterans and their families requires by its very
nature a large bureaucracy. No matter how one feels about so-called
``big government,'' it requires a great many people to review millions
of claims for benefits submitted each year and many more to provide the
review of those initial decisions. There no doubt that there are
inefficiencies in the VA, a point I will return to below. However, for
now the point is that a cause of some of the problems the Subcommittee
is considering is related to the commitment of Congress to veterans and
the corresponding creation of a process by which that commitment is
translated into tangible outcomes.
The Ad Hoc Development of the Veterans' Benefits System
Another significant cause of the delays in resolution of veterans'
appeals of benefits denials can be traced to the ad hoc development of
the benefits' system itself and the various consequences that flow from
that development. As one will recall from the summary of the system set
out in Section I above, the system we have today is the result of
additions over a long period of time. It is as if one had built a house
with many additions over the years but there was no conscious planning
of what the residence should ultimately look like. The structure works
as a house but not in the way in which it would have had it been
planned at a single time. In this sub-section, I briefly highlight some
of the way in which the ad hoc development of the benefits' system
contributes to current delays.
The system includes two dramatically different segments:
a non-adversarial administrative structure onto which a traditional
judicial system has been grafted. Moreover, the engrafting of that
judicial superstructure came only after many years in which the
administrative structure existed in isolation. This part of the
system's development causes delay in several respects.
I First, there is a disconnect between the two parts of the
system for veterans as they move from the non-adversarial process to
the traditionally adversarial judicial process. This transition can be
a difficult one for unrepresented veterans who have grown accustomed to
being assisted in the development of their claims. The transition adds
time to the resolution of cases reaching this level of the system.
I Second, even after a quarter-century of the presence of courts
in the process, it does not appear that all of the actors in the
administrative system have fully accepted judicial review. Some of this
resistance may be conscious. But leaving that aside, it also seems that
even after twenty-five years there is not a sufficiently well-developed
means by which legal ruling are communicated to front line adjudicators
in a timely and understandable manner. The result of this state of
affairs is that errors occur that could be avoided and those errors
will also lead to likely needless remands to apply the correct legal
rule. These remands in turn add to the length of time it takes for an
appeal of an administrative decision to be fully resolved based on the
correct legal principles.
I Third, even if there were not resistance (conscious or
unconscious) to the imposition of judicial review, the complex body of
law imposed on the administrative process is being implemented in the
first instance by non-lawyers. This reality means that errors in
adjudications are extremely likely to occur, requiring correction on
appeal.
Another source of delay inherent in the structure of the
system as it currently stands can be tied to certain requirements
Congress has imposed on various actors in the process.
I First, Congress made the decision to create the CAVC as an
appellate body and specifically precluded that body from making factual
determinations. See, e.g., 38 U.S.C. Sec. 7261(c). The decision to
have judicial review of veterans' benefits decisions vested in an
appellate tribunal and the corresponding restriction on making factual
determinations have an important consequence. The CAVC will often find
an error the Board has committed but conclude that the proper remedy is
to remand the matter so that the Board may conduct the appropriate
fact-related exercise. In other words, this structural feature of the
system is a critical component of the so-called hamster wheel on which
so many veterans find themselves.
I Second, and related to the first point, Congress has required
that the Board's decisions contain: ``a written statement of the
Board's findings and conclusions, and the reasons and bases for those
findings and conclusions, on all material issues of fact or law
presented on the record. . . .'' 38 U.S.C. Sec. 7104(d)(1). The
rationale for doing this is two-fold. We want the veteran to understand
why the Board has reached its conclusions. We also want to make sure
that a court can meaningfully review the Board's actions. However, this
requirement is also a component of the hamster wheel because so-called
``reasons and bases'' errors are extraordinarily common. When the CAVC
determines that there is a lack of reasons or bases (or as is also
common, the parties on appeal agree that the Board's decision lacks a
sufficient statement of reasons and bases), the only recourse is a
remand. At that point it seems quite likely that the Board will issue
another decision reaching the same result but with more explanation.
That, in turn, will lead to another appeal to the CAVC. The wheel
continues to turn.
I Third, Congress made a determination to include two-levels of
as-of-right judicial review of administrative decisions. As described
above, a dissatisfied claimant has a right to appeal a final Board
decision to the CAVC. Either party then has a right of appeal to the
Federal Circuit. As far as I am aware, this is the only example in
federal practice of two levels of as-of-right appellate review. There
is no question that the inclusion of the Federal Circuit in the chain
if review adds to delays in the appellate process. Most obviously, in
cases appealed to that court the appellate process is lengthened by
definition as the court considers the appeal. However, more
systemically the presence of an additional layer of review contributes
to delay by making the law less stable. Of course, this recognition
does not mean that having the Federal Circuit as a part of the process
is necessarily a bad thing. If there is some goal that the court's
inclusion supports - for example a strong concern for error correction
plain and simple - having two levels of review might be appropriate.
But with that extra layer of review necessarily comes delay.
Another aspect of the ad hoc development of the current
system that contributes to delay concerns the presence of lawyers in
the administrative system. As described above, Congress has provided
that a claimant may retain a lawyer for a fee as soon as he or she
receives an initial RO decision on a claim. This was a significant
change in the system which had historically disfavored the assistance
of counsel. As I will discuss in Section III below, I actually believe
that the greater use of lawyers in the administrative system has the
potential to reduce delays in the appellate process. However, that
potential is being undercut by a resistance to counsel by
administrative adjudicators at all levels of the system. The result of
such resistance means not only that the reductions in delays that could
accompany the greater introduction of lawyers in the system are not
being realized, but ironically greater delays are being introduced as
administrative adjudicators and counsel engage in peripheral battles
over the presence of lawyers themselves.
Procedural Protections Provided Claimants
As I have mentioned above Congress has been quite generous to
veterans in terms of the benefits they are entitled to receive. I've
explained how that generosity itself is, ironically, a part of the
delays in receipt of benefits. A related concept is that in addition to
being generous in the types of benefits available, Congress has also
been generous in providing procedural protections to claimants in the
system. \31\ Congress has provided means for veterans to have multiple
hearings at the various levels of the process and to introduce new
evidence well after traditional processes would preclude such an
action. Moreover, as described in Section I, Congress has mandated that
veterans be provided with notice and assistance in the administrative
process in order to implement the non-adversarial, pro-claimant aspect
of the system.
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\31\ The Federal Circuit has also held that applicants for
veterans' benefits have a property interest in those benefits such that
the Constitution's Due Process Claim applies. Cushman v. Shinseki, 576
F.3d 1290 (Fed. Cir. 2009). This Statement does not consider the
constitutional issues but rather only the various procedural protection
Congress (or the VA) has provided. I have discussed the constitutional
issues more directly in Allen, Due Process, supra note 1.
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These procedural protections are important to veterans. However,
with any additional layer of procedure comes a corresponding period of
delay. For example, with each additional hearing comes time to prepare,
have the hearing, and eventually render a decision. And with the duties
of notice and assistance, a finding that such a duty has not been
complied with will almost always lead to a remand. None of this is to
say that the procedural protections provided to veterans are a bad
thing. It is simply to note that the more procedure one affords, the
longer a process will take from start to finish.
Legal Complexity
A final cause of delays in the administrative system concerns the
legal complexity of the law in the area of veterans' benefits. As Judge
Lance of the CVAC recently wrote, ``[t]here is an unfortunate - and not
entirely unfounded - belief that veterans law is becoming too complex
for the thousands of regional office adjudicators that must apply the
rules on the front lines in over a million cases per year.'' \32\ If
Judge Lance is correct - and I believe he is - delays are going to
inevitably result. And it is worth noting that if the law in this area
is becoming too complex for RO adjudicators to apply, how much more of
a problem is that for claimants who may not have the benefit of legal
counsel or assistance by a Veterans Service Organization.
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\32\ Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J.,
concurring in the judgment).
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Delays flow from legal complexity in at least two respects. First,
it simply takes time for a legal ruling issued by the Federal Circuit
or the CAVC to be communicated to adjudicators in a manner that allows
it to be applied. Second, even when communicated, the complexity of
legal doctrine is such that errors are inevitably a part of the
process. Those errors need to be corrected on appeal at some point and
these corrections often lead to remands. Those remands, in turn, can
lead to further appeals lengthening the time to resolution of claims.
As with many of the causes of delay I have discussed, there is a
positive attribute behind the scenes. The introduction of judicial
review has unquestionable led to the legal complexity that is a part of
the increased delay in resolving claims. But judicial review has also
brought great benefits to the system of veterans' benefits. I have
discussed these benefits in other venues and will not repeat them here.
\33\ My point at this juncture is that one has to recognize that while
extensive delays in resolving claims is unquestionably not a good
thing, some level of delay is part and parcel of alterations to the
system that have been a good thing.
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\33\ Allen, Legislative Commission, supra note 1, at 372-77.
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*****
This Section has discussed some of the less obvious causes of
delays in the consideration of appeals of veterans' benefits claims. A
common theme of that discussion has been that many of the reasons for
delays in adjudication of benefits' claims flow from aspects of the
system that are positive in the abstract. Of course not all do, but the
reality that there is a mix of good and bad here making crafting
solutions for the problem even more complex than it otherwise would be.
Section III considers some possible means to approach the problem of
delays.
III. Some Thoughts About Possible Solutions for the Delays in
Resolution of Appeals
This Section of my Statement turns to potential solutions to the
delays in adjudication of appeals. Before describing how I will
proceed, I wish to mention two preliminary points in connection with
this discussion. First, I understand that the VA is in the process of
computerizing its claims files. I believe that this effort will, in the
long term, reduce delays in adjudication. But it is not a magic bullet.
It is one part of the process. And for it to be successful, the VA must
ensure that it has considered not only how digitization of its claims
files will work when RO adjudicators are considering an initial claim
but also how it will be employed when a matter proceeds on appeal and
the claimant adds additional information to the record. None of the
challenges that will come with computerization of records is
insurmountable. However, we should all recognize both that there will
be challenges and that the computerization project will not solve the
entire problem of delay by any means.
Second, I would be cautious about assertions that adding additional
adjudicators to the various levels of the system will solve the problem
of delay in and of itself. I do not have the intimate familiarity with
the VA's inner workings to speak in detail about this matter. However,
given what I have identified as some of the systemic causes of delay in
the system (see Section II), I am quite skeptical that merely throwing
more bodies in the system will sufficiently address the fundamental
problem. To be sure, there should be sufficient staffing to address the
caseloads at the various levels of the system. But even if fully
staffed, I believe that delays will remain given the nature of many of
the causes of delay in the system. See Section II, supra.
Having addressed these two caveats, the balance of this Section
provides a discussion of some actions that could address the problems
of delays in adjudication the Subcommittee is considering. I have
broken that discussion into two parts. First, I discuss what I consider
to be the most important thing Congress could do to affect systemic
delays in adjudication: provide for a means of comprehensive revision
of the current system from start to finish in which all relevant
constituencies have a voice. This process is fraught with political
difficulties and would be a major - perhaps even revolutionary -
endeavor. Because I am not confident that such a comprehensive review
is possible, the second part of this Section discusses more targeted
actions that could be taken to reduce the delays in appellate
adjudication.
Comprehensive System Review
As I discussed above, the current system by which veterans'
benefits are awarded and those decisions reviewed developed in an ad
hoc manner over many years. The result of that development is a system
in which there are many levels of review some of which are non-
adversarial and pro-claimant while others are more traditionally
adversarial. The system functions, but it is clearly not the most
efficient one. That inefficiency leads to delay.
As I have argued in other places, I believe that Congress should
authorize the creation of a commission to consider what a more
efficient system of awarding, and reviewing decisions concerning,
veterans' benefits should look like. \34\ Such a Commission should be
composed of representatives of all the relevant constituencies affected
by and involved in the award of veterans' benefits. These
constituencies include: veterans (and other claimants in the system),
most likely represented through the various Veterans Service
Organizations; the VA in all its facets (including most definitely RO
adjudicators and the Board); the CAVC; the Federal Circuit; and
Congress itself.
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\34\ See Allen, Legislative Commission, supra note 1. Some of the
discussion in the text concerning the Commission I have proposed is
based on written testimony I submitted in March 2010 to the full House
Committee concerning its ``Claims Summit.''
---------------------------------------------------------------------------
The Commission should be charged with evaluating the current state
of appellate review of veterans' benefits determinations and making
recommendations concerning what changes might be made to that system as
well as in the administrative process more generally. The Commission
should specifically be charged with considering how the structure of
the system affects the time in which initial claims are resolved and
appeals are finally adjudicated. There should be no constraints imposed
on the Commission with respect to the options it might consider and/or
propose. Finally, the Commission should be directed to submit a report
to Congress within a defined period of time. That report should
describe the Commission's activities, provide relevant background and
statistical information, and set forth specific proposals for changes
to the system warranted by the Commission's investigation. \35\
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\35\ Congress should also ensure that the Commission has adequate
resources with which to perform its functions. The Commission should be
provided with a staff for, among other things, data collection and
analysis as well as space in which to work. It should also have funds
available sufficient to allow the Commissioners to travel so that
public hearings can be held to obtain the greatest input of views as
part of its work.
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While the Commission should not be limited in terms of the matters
it considers, it should keep three interests in mind during its
investigation and deliberations:
The Interests of Veterans
The paramount interest the Commission must consider is that of the
veteran. The nation should never forget - and I am confident none of
the people involved in the process do - that the entire structure of
veterans' benefits law exists for the purpose of providing support to
the men and women who served this country. Thus, the Commission must
ensure that it proposes nothing that harms the interests of the
beneficiaries of the system without expressly considering the aggregate
benefits that could be argued to exist from a more streamlined system.
Veterans' interests fall into five broad categories:
Accuracy: Veterans have an interest in ensuring that
decisions concerning the award of benefits be as accurate as possible.
The gains in accuracy that have likely been achieved over the past
twenty-five years due in part to judicial review should be preserved.
Fairness: It is critically important that the system of
awarding benefits and reviewing such decisions both be fair and be
perceived as being fair. Veterans need to believe that the system
provides an opportunity for their claims to be adjudicated in a manner
that is, broadly speaking, consistent with the rule of law. Thus, the
gains in the nature of VA decision-making (e.g., better reasoned
decisions) need to be preserved. In addition, the substantive fairness
of the process needs to be preserved as well. Finally, one needs to be
concerned with the speed of the decision-making process, recognizing
that there is a trade-off between timely decisions and seeking to
ensure that one reaches a ``perfect'' resolution of a given claim or
appeal.
Transparency: Closely related to fairness is veterans'
interest in a transparent process. Largely as a result of the influence
of the CAVC (although aided by Congress), the process of awarding
benefits has become more open. That trend should be preserved.
Predictability: It is important that the VA and veterans
and their counsel be in a position to predict how issues will be
resolved. Of course, there will always be a level of uncertainty in any
legal system populated by humans. Nevertheless, the value of enhanced
predictability of results is important systemically.
Finality: No legal system can exist for long in any
functional respect if disputes never come to an end. Veterans, as well
as the VA, have an interest in having disputes resolved once and for
all. The value of finality should not drive the system. There should be
means of correcting errors, but those means need to be balanced against
the interests of repose. Thus, finality itself is a value that should
be considered when evaluating the current - or a future - system
concerning the award of veterans' benefits and the judicial review of
such decisions.
Institutional Concerns
A second interest that the Commission must consider concerns the
preservation of American constitutional values. In particular, the
importance in the American constitutional order of the maintenance of
separate and independent centers of political authority must be a part
of the Commission's deliberations. This is a structural concern. Thus,
it is important to preserve an independent institutional check on the
political branches' authority to award veterans' benefits.
The CAVC was created as an Article I tribunal, meaning that its
members do not enjoy the tenure and salary protections afforded judges
serving in the coordinate Article III judiciary. Under well-established
law, there is no structural constitutional violation flowing from the
assignment of the adjudication of disputes concerning veterans'
benefits to such an Article I tribunal. Veterans benefits are a
``public right.'' That is, entitlement to benefits flows from statutes
instead of the common law or the Constitution itself. \36\
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\36\ See, e.g, Northern Pipeline Construction Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 69 n.22 (1982) (describing ``payments to
veterans'' as an example of a public right (citation omitted));
Congress has wide latitude to assign the adjudication of disputes
concerning such public rights to non-Article III adjudicators such as
the CAVC. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478
U.S. 833 (1986); Thomas v. Union Carbide Agricultural Products Co., 473
U.S. 568 (1985).
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The institutional concern the Commission must consider is less
formalistic than a suggestion that one must necessarily have the
Article III judiciary (beyond the Supreme Court) involved in the
process to make it legitimate. Of course, that is one way in which one
could preserve institutional concerns regarding separation of powers.
But there are other ways in which such power divisions can be
established and maintained. The key is that one needs to ensure that
the system of review employed in the process contains sufficient
independence that there is a meaningful check on the unilateral
authority of the political branches.
The Public Interest
Finally, any consideration of the judicial review of veterans'
benefits decisions needs to take into account the public's interest in
maintaining a system that, while fair to veterans, also safeguards the
great resources devoted to veterans and their dependants. The public
has a right to ensure that the funds allotted to the VA for the payment
of veterans' benefits are spent according to the directions of
Congress.
*****
As should be apparent from this discussion of a Commission, a
systemic reconsideration of the current approach to the award and
review of decisions concerning veterans' benefits would be a monumental
endeavor. It would require buy-in from many actors and a willingness to
approach these issues with open minds. I also believe, however, that
such a comprehensive approach to the veterans' benefits system provides
the best opportunity to either reduce delays in the system or come to a
realization that, at some level, the delays in the system are present
because there is some other value we collectively find so important
that we are willing to countenance those delays. While I am not
confident that such a systemic review of the system is likely to occur,
I remain convinced that it is the best way to address the problems -
real and/or perceived - in the current system
Some More Modest, Targeted Suggestions
Given the difficulties associated with a comprehensive review and/
or overhaul of the current veterans' benefits system, this sub-section
turns to more modest ways for potential reductions in the time to
complete appellate adjudication of claims. In one way or another, these
possibilities are tied to several of the causes of delay I identified
in Section II above. It may be too strong a term to describe these
possibilities as suggestions. They are better thought of as approaches
to consider. I highlight several such items below in no particular
order:
As described above, Congress has been quite generous with
veterans in terms of the benefits available. In addition, with respect
to disability compensation, Congress has not placed any limitation on
when such claims may be initiated. This lack of a time period within
which to bring claims is certainly veteran friendly. However, if
Congress were to enact a statute of limitations for most claims, \37\
there would likely be a positive effect on systemic delays. This is so
both because there would be fewer claims in the aggregate and also
because long-delayed claims are often more difficult to adjudicate
given the passage of time between service and the claims process. Of
course, this approach would restrict the claims available to veterans.
It might be that Congress is not interested in doing so even if such an
action would reduce delays, but it is something to consider.
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\37\ Such a statute of limitations would not have to cover all
potential disability claims. Congress could legislate or authorize the
VA to specify certain claims for which the current ``no limit'' system
would continue. For example, such claims could include those based on
diseases or other conditions with long latency periods. The idea would
be to limit claims based on more generic conditions.
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In a similar vein, Congress could assess whether all of
the current claimant-friendly procedural protections in the system are
worth the attendant cost in terms of delays in the process. No
question, such an approach would be better if done as part of the
larger systemic approach I have discussed above. And equally certain,
such an approach would be controversial. But if one seeks to reduce
delays, such actions would be useful in that endeavor. \38\
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\38\ To take just one example, Congress could shorten some of the
time periods within which claimants may take certain actions, such as
the one-year within which to submit a NOD concerning an RO action.
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Congress could explore whether alterations in the
structure of the Board would likely reduce delays on a systemic basis.
One suggestion that has been mentioned in the past is the
regionalization of the Board. Under such a system, the Board would not
be a single entity based in Washington as it is currently. Instead, the
Board would be divided into regions much as the federal circuit courts
of appeal are in the judicial system more generally. There is a
possibility that such regionalization of the Board would make the
system more nimble in terms of dealing with RO decisions. I confess
that I am not sure that such an action would reduce delay, but at a
minimum this is a possibility that should be seriously considered as a
part of efforts to streamline the appellate process at the
administrative level.
I also mentioned in Section II the oddity of having two
layers of as-of-right appellate judicial review, that is having both
the CAVC and the Federal Circuit as parts of the system. Congress could
remove the Federal Circuit from the process essentially making the CAVC
the sole means of judicial review of administrative actions subject
only to discretionary review in the Supreme Court. \39\ Such a system
exists in the context of appeals from military courts with the United
States Court of Appeals for the Armed Forces, also an Article I
tribunal, the final judicial body in which one has a right of appeal
with only discretionary review in the Supreme Court. Such a change in
the system would be controversial. In my experience, many advocates for
veterans are reluctant to remove the Federal Circuit from the process.
I have not seen any empirical study to suggest that the Federal Circuit
is, in fact, more friendly to veterans than is the CAVC. It seems that
the resistance to removal of that court from the process is based more
on anecdotal concerns. In the absence of some evidence to suggest that
the Federal Circuit adds appreciably to quality of decision-making, I
believe the time has come to seriously consider removing that body from
the process.
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\39\ A hybrid possibility would be to have review in the Federal
Circuit be discretionary even as to pure questions of law.
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As I have mentioned at several points, and as the
``hamster wheel'' description of the current system suggests, the
prevalence of remands in the system is a major cause of delay in the
resolution of claims. Remands occur at both the administrative level
(from the Board to the RO) as well as at the judicial level (from the
CAVC to the Board). Actions could be taken at each of these steps in
the system to address the remand issue and, consequently, delays in the
adjudicatory process.
I At the administrative level, Congress has already taken steps
that should, over time, have a positive effect on the time in which
appellate review is completed. For example, claimants now have the
ability to waive initial consideration of new evidence introduced at
the Board by the RO (thus preserving the statutory right to ``one
appeal to the Secretary''). Further steps are possible. One possibility
would be to restrict by statute the discretion Board Members (or
Veterans Law Judges) have to remand given matters. Such restrictions
could be based on relatively simple criteria such as the time in which
an appeal has been pending or the nature of the claim at issue.
Alternatively, Congress could provide more detailed guidance in which
it limited discretionary remands by more detailed matters such as the
particular issue in contention. Congress could also be veteran-friendly
when taking such steps by allowing a veteran to consent to a remand but
not have one forced on him or her. I believe limiting the discretion to
remand cases form the Board would have a positive effect on the time in
which administrative appeals of claims are decided. However, such
reductions in delay could come at the cost of having less reasoned
consideration of certain matters. It could also have important effects
on the nature of the Board. Such countervailing matters should be an
important part of any decision to adopt these changes.
I Remands are also a serious issue at the judicial level. One
significant reason for such remands is the CAVC's reluctance to engage
in statutorily prohibited fact finding. So, for example, the CAVC will
conclude that the Board made a certain error (often because of the
provision of insufficient reasons and bases). Having found such an
error, the CAVC will almost always remand the case to the Board to
adjudicate the appeal in the first instance. \40\ No doubt, this course
of action will often be correct so long as the CAVC is prohibited from
making factual determinations in the first instance. However, I believe
the CAVC (either on its own initiative or at the direction of Congress)
could be more aggressive in using its power to reverse the Board as
opposed to remanding a matter. Specifically, I have suggested elsewhere
that the CAVC should adopt a form of hypothetical clearly erroneous
review. \41\ Under this approach, the court would ask whether on the
state of the evidence in the record if the Board had made a factual
finding against the claimant, would the court have been left with the
``definite and firm conviction that a mistake has been committed.''
\42\ The CAVC uses such a standard to assess actual findings of fact
the Board has made. \43\ It is true that the proposal would be for a
hypothetical review of a finding of fact not actually made. My point,
however, is that if the court were to conclude that on the face of the
record existing before the court a finding of fact adverse to the
veteran would be clearly erroneous, it seems that there is no need for
a remand. \44\ I have not attempted to assess empirically how much of
an effect such hypothetical clearly erroneous review would have, but I
suspect it could have a not insignificant impact over the run of
appeals.
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\40\ See, e.g., Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013)
(affirming CAVC decision to remand instead of reverse); Byron v.
Shinseki, 670 F.3d 1202 (Fed. Cir. 2012) (same).
\41\ See Allen, Commentary, supra note 1, at 150-55.
\42\ See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)
(setting forth federal standard for clearly erroneous review of factual
findings actually made).
\43\ See, e.g., Byron v. Shinseki, 2011 U.S. App. Vet. Claims LEXIS
1293 at 11 (CAVC June 20, 2011) (non-precedential single-judge
memorandum opinion).
\44\ I note here that engaging in such a hypothetical exercise is
not unknown to the CAVC. It does something similar when it ``takes due
account of the rule of prejudicial error'' in assessing whether an
administrative error would have affected the ultimate outcome in the
matter at hand. See 38 U.S.C. Sec. 7261(b)(2).
Congress should also consider specifically authorizing
the CAVC to consider adopting a rule for the aggregate resolution of
issues on appeal. As I discussed in Section I, the CAVC has ruled in a
number of decisions that it lacks the authority to resolve issues using
a procedure akin to a class action in general civil litigation. \45\
Whatever the merits of those decisions, I believe that adopting such a
procedural approach could reduce delays in adjudication on a systemic
basis. If the court we able to formally adjudicate an issue that had
binding legal effect on hundreds or thousands of cases, I firmly
believe that the process of adjudication would be streamlined. There is
not time here to explore this concept fully. However, I strongly urge
Congress to at least allow the CAVC to explore the adoption of such a
rule.
---------------------------------------------------------------------------
\45\ See FED. R. CIV. P. 23.
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Finally, as I have mentioned above, a unique feature of
the current system is that Congress has simultaneously indicated that
it expects the administrative system to be non-adversarial while at the
same time indicating that lawyers should be a greater part of the
system. Unfortunately, the introduction of lawyers into the purportedly
non-adversarial system has not been as smooth as one would have hoped.
The reality is that no one has handled this development well. VA has
not accepted their introduction. The CAVC has seemed uncomfortable with
their presence. And the lawyers themselves have not seemed to embrace a
role that is non-adversarial. I believe that if lawyers were used
appropriately in the administrative system, the delays in adjudication
would be reduced. For example, lawyers are trained to tie evidence to
legal requirements. Thus, even in a non-adversarial system, lawyers
should be able to assemble material that in the long run will make the
claims adjudication process more efficient. Congress could accelerate
the integration of lawyers into the system by mandating that the VA
adopt regulations by which lawyers would be utilized to develop claims
as part of the non-adversarial process. This will not be an easy task,
but I firmly believe that it can bear significant fruit going forward.
IV. Conclusion
In conclusion, I want to stress that nothing I have written should
be taken to cast aspersions on anyone involved in the current system
for the award and review of veterans' benefits. I firmly believe that
the people who have elected to devote a good portion of their
professional lives to working in this system have nothing but the best
interests of veterans at heart. In many respects, they are heroes
themselves because they are a contemporary example of President Abraham
Lincoln's call in his famous Second Inaugural Address (as slightly
edited to reflect today's society) for the nation ``to care for him
[and her] who shall have borne the battle and for his widow [or her
widower], and his [or her] orphan.'' \46\
---------------------------------------------------------------------------
\46\ See President Abraham Lincoln, Second Inaugural Address (Mar.
4, 1865), in ABRAHAM LINCOLN: SELECTED SPEECHES AND WRITINGS 449
(Library of America ed., 1st Vintage Books 1992), also available at
www.bartleby.com/124/pres32html.
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But even with the best intentions - as I stress again I believe all
those in this process have - there is no question that veterans and
their dependants often wait a long time for the resolution of their
claims for benefits. As I have tried to indicate, the causes of such
delays are more complex than one might at first suspect. And they often
can find their roots in aspects of the system that have some positive
values.
All of this, in turn, means that potential solutions to the problem
of delay are correspondingly complex. I have attempted to provide some
suggestions for addressing the problem, but the reality is that none of
the ``solutions'' are particularly easy. I have a great deal of respect
for the Subcommittee's decision to focus attention on the problem.
Thank you again for allowing me to submit this Statement as part of the
process.
JAMES D. RIDGWAY
EXECUTIVE SUMMARY
The fundamental challenge for the veterans benefits system today,
including the appellate process, is system effects. That is the term
academics use to describe the problem that occurs in large systems when
the number of rules grows so large that the system stops producing the
desired result, even though each individual rule can be defended as
making a positive contribution to the goal. We have long passed the
point of critical mass where the sum total is too complex for
adjudicators at every level to keep straight, much less for untrained
veterans to understand. A better appellate system--and a better
adjudication system in general--needs to move away from trying to deal
with millions of veterans with millions of rules, and instead focus on
finding the smallest number of rules that will fulfill the goal of
creating a truly veteran-friendly system that is capable of delivering
timely and accurate results.
An improved appellate process needs to contribute to this paradigm
shift. In a system suffering from system effects, there are no magic
bullets. The problem of complexity can be solved only by dramatic
change. Because the large number of rules is the central challenge, a
great number of individual parts must be critically examined and
streamlined. These are just a few suggestions that I have proposed in
the past, and are just the beginning of a larger project that must
include all the stakeholders. Most importantly, changes must be
rigorously tested with real veterans to make sure that they understand
and benefit from the system that is supposed to be friendly and
paternalistic toward them.
First, the complex, inefficient rules for gathering
evidence must be replaced with a mechanism that allows the most
difficult cases to be resolved on appeal by live hearings with medical
experts that fully explore the issues necessary to bring finality to
claims.
Second, the rules governing attorney fees in the
appellate process need to be rewritten to align attorney incentives
with the best interests of veterans. Instead of attorneys making money
by adding ever more complexity to the system, they should profit from
helping veterans obtain the evidence needed to reach a final decision.
Third, instituting procedures applying global findings of
fact to repetitive issues, instead of seeking medical opinions and
military records in factually similar cases that should all result in
the same outcome, would lead to faster, more uniform results because
the findings would be reviewed only once on appeal, rather than in each
case.
Fourth, all involved in the appellate process need to
refocus (within their appropriate roles) on the first principle of
making the system veteran-friendly. Notices, procedures, and other
rules are helpful only if read, understood, remembered, and followed.
Everyone wants the system to provide better results, but at this
point more rules increase delay, not quality. Less process and more
effectiveness are the true answers.
Initially, my thanks to Chairman Runyan, Ranking Member Titus, and
the Subcommittee for providing me with the opportunity to provide a
statement for the record on this important issue. Although I began
working for the Board of Veterans' Appeals last year, I have written a
long series of articles analyzing the dynamics of the veterans benefits
system, and the appellate process in particular. The Subcommittee has
asked for my views as a private citizen and professorial lecturer in
law at the George Washington University School of Law. Accordingly,
this statement expresses my personal views, as developed in several
previously published articles (see http://ssrn.com/author=1378084), and
not official positions of the Department of Veterans Affairs.
*****
Introduction
``Any intelligent fool can make things bigger [and] more complex. .
. . It takes a touch of genius--and a lot of courage to move in the
opposite direction.'' Attributed to Albert Einstein
Why are veterans seeking benefits waiting years on appeal? This is
a very important question. The short answer is that the entire process
suffers from system effects. That is the term academics use to describe
the problem that occurs in large systems when the number of rules gets
so large that the system stops producing the desired result even though
each individual rule can be defended as making a positive contribution
to the goal. In the veterans benefits system, the complexity has grown
so great that the system produces veteran-unfriendly outcomes, even
though each individual piece could be defended as advancing the goal of
veteran-friendliness. Short of abolishing the entire system and
restarting with a blank sheet of paper, there is no magic bullet for
fixing the problem of too much complexity. Instead, each major
component of the process needs to be reexamined and streamlined.
Ultimately, solving system-effect problems is very difficult, and the
only way to be sure that changes will work is rigorously test them to
make sure that they produce faster, more accurate results that are
understood by veterans as correct and fair.
I. Appellate Review by the Numbers
The first step to addressing the problems of the appeals process in
the veterans benefits process is to define the concerns. The appellate
process we have today stems from the Veterans Judicial Review Act of
1988 (VJRA). That Act created what is now the United States Court of
Appeals for Veterans Claims (CAVC). The CAVC was established as an
independent appellate court to review decisions made by the Board of
Veterans' Appeals (BVA), the final decision maker within VA. The VJRA
also provided an additional level of appellate review by the United
States Court of Appeals for the Federal Circuit (Federal Circuit)
between the CAVC and the United States Supreme Court. As a result,
after a veteran receives an initial decision on a claim, he or she has
the right to three levels of appellate review, one within the agency
and two by federal courts.
Two decades of independent judicial review substantially changed
the outcomes for veterans. When I compared FY2008 to FY1988 (the year
the VJRA was passed), I found that the percentage of applications
granted at least one benefit at the regional office level rose from 50%
to 88%. James D. Ridgway, The Veterans' Judicial Review Act Twenty
Years Later: Assessing the New Complexities of the Veterans Benefits
System, 66 N.Y.U. ANN. SURV. AM. L. 251, 266-67 (2010). In addition,
the average compensation (in 2008 dollars) for recipients of benefits
rose from $7,060/year to $11,200/year. Id. There appears to be a strong
correlation between independent appellate review and outcomes that are
more favorable to veterans.
However, there is also a correlation between appellate review and
processing times. From 1988 to 2008, the average appellate processing
time within the agency doubled from 462 days to almost three years. Id.
at 268. In FY2012, claims finally decided by the BVA had waited 1040
days on average for a decision on appeal. Of course, if a disappointed
veteran took advantage of the right to appeal to the federal courts,
each additional step would add one to two years to the total processing
time. Moreover, because most appeals raise only procedural issues, they
are most likely to result in a remand to the agency for still further
proceedings.
Therefore, the question is more complicated than simply the length
of time involved. It is a matter of balancing the effect of appellate
review on the system as a whole, with the costs it imposes in terms of
money, time, and frustration. System effects are a real problem, but
appellate review also produces tangible results.
II. Why is the System So Complex?
The complexity of the system that causes system effects is not an
intentional feature. The system did not become complex overnight.
Therefore, reducing complexity is not a simple matter of undoing a few
changes to put the system back on the ``right'' path. Rather,
complexity is the accumulation of nearly a century of decisions, each
intended to steer a better course.
The veterans benefits system we have today is essentially the one
designed for World War I. The system began as a mere fourteen pages of
amendments in 1917 that effectively converted the Bureau of War Risk
Insurance into the benefits agency for World War I veterans. See James
D. Ridgway, Recovering an Institutional Memory: The Origins of the
Modern Veterans Benefits System, 1914 to 1958, 5 VETERANS L. REV. 1, 17
(2013). In 1933, Franklin Roosevelt adopted this system when he created
by executive order a universal system of benefits for veterans of all
conflicts. Id. at 12. That same year, he also created the BVA to review
decisions of the regional offices. Id. at 39.
Since the system was created, many, many new laws, regulations, and
procedures have been added to address the emerging problems of each
generation. To give just one example, 38 C.F.R. Sec. 3.7 lists over
fifty classes and subclasses of military service, including ``[t]hree
scouts/guides, Miguel Tenorio, Penedicto Taisacan, and Cristino Dela
Cruz, who assisted the United States Marines in the offensive
operations against the Japanese on the Northern Mariana Islands from
June 19, 1944, through September 2, 1945.'' 38 C.F.R. Sec. 3.7(x)(32)
(2012). It is a monument to our commitment to justice for our veterans
that such care is taken to include rules that may pertain to only three
veterans. However, the proliferation of rules creates an extraordinary
challenge for adjudicators to recall, find, and correctly apply all the
rules that may apply to each individual.
III. Complexity Itself Has its Own Costs
In spite of the best of intentions, the large number of veteran-
friendly rules works against the goal of creating a veteran-friendly
system. The idea of system effects is essentially a recognition that
each new rule costs more than the last one, not just in administrative
overhead, but in the mental energy required by claimants, adjudicators,
and representatives to process and understand. This increased mental
burden leads to longer decision times and more errors.
This result was not factored into the VJRA. The concept of system
effects did not really exist when the current structure of appellate
review of veterans benefits was created. Ten years after the VJRA,
Robert Jervis published his seminal work on the subject, SYSTEM
EFFECTS: COMPLEXITY IN POLITICAL AND SOCIAL LIFE (1998). Only a decade
ago, J.B. Ruhl and James Salzman published their breakthrough analysis
of how system effects are a general problem for federal agencies,
Mozart and the Red Queen: The Problem of Regulatory Accretion in the
Administrative State, 91 GEORGETOWN L.J 757 (2003). They pointed out
that, as the number of administrative rules increases in a system,
compliance with those rules becomes harder and harder, and the payoff
for each additional rule shrinks because the amount of time required to
understand and follow the rules eventually outpaces the abilities of
even very intelligent and very well-meaning individuals. The problem is
not bad intent or even negligence. It is that human beings have
fundamental limits in how much they can remember and synthesize, even
with the assistance of modern technology.
In more concrete terms, rules are not free. Each rule takes a
certain amount of effort to learn and recall. More importantly, as the
number of rules increases, the number of interactions between those
rules increases exponentially, x=n(n-1)/2. At a most basic level, 2
rules have 1 interaction between them, 3 rules have 3 interactions, 4
rules have 6 interactions, 5 rules have 10 interactions, 100 rules have
4,950 interactions, and 10,000 rules have nearly 50 million potential
interactions to understand. In practice, not every rule has a
meaningful interaction with every other rule, but adding a new rule to
a system with a small number of rules is very different than adding a
new rule to a system with thousands of pages of them. Even if you
identify and evaluate the costs and benefits of how that rule interacts
with dozens or even hundreds of other relevant rules, it becomes
practically certain that some interactions were overlooked and some
unintended consequences were created. Therefore, a complex system will
eventually exceed the ability of people to fully understand and follow,
even with the best of intentions and efforts.
IV. Simpler
Only recently have we started to pay attention to both the need to
reduce complexity and how to accomplish that goal. One of the best
recent efforts to explore this area has been by Harvard Law School
professor Cass Sunstein. As he explained, ``Even when rules are
complex, frustrating, and incomprehensible to the public, they tend to
seem simple and straightforward to those who wrote them . . . . Chess
masters can immediately read a board, and in a fraction of a second,
professional tennis players know how to handle a blistering crosscourt
backhand. So too, rule writers understand the meaning of jargon-filled
terms and requirements that seem impossibly baffling to those who are
subject to them.'' We need to ``encourage the people who write rules to
step back and reduce the strain on . . . people who are required to
understand the rules.'' CASS R. SUNSTEIN, SIMPLER: THE FUTURE OF
GOVERNMENT 215-16 (2013).
This is the fundamental challenge for the veterans benefits appeals
system. Those involved the appellate system must focus on making the
system manageable not only for the appellate system, but for veterans,
the veterans service officers who assist them, and the adjudicators who
handle the claims. Unlike other systems, this appellate process reviews
and shapes a system in which the claimants, adjudicators, and
representatives on the front lines are not attorneys.
V. Toward a Simpler System
What is the challenge that system effects poses for the appellate
system? One way to look at it is that the National Veterans Law
Services Program publishes a 2,000-page collection of the statutes,
regulations, and other rules of the veterans benefits system, and
another 2,000-page guide to the court case law interpreting those
rules. Even though each and every rule and case in this 4,000-page
summary of veterans law may be defended as motivated by the best
interests of veterans and a desire to make the system veteran friendly,
we have long since passed the critical mass where the sum total is too
complex for adjudicators and veterans representatives at every level to
keep straight, much less for untrained veterans to understand.
Moreover, it is too complex for those creating new rules to predict the
total effect those rules will have on the system.
A better appellate system--and a better adjudication system in
general--needs to move away from trying to deal with millions of
veterans with millions of rules, and instead focus on finding the
smallest number of rules that will fulfill the goal of creating a truly
veteran-friendly system that is capable to delivering timely and
accurate results. There are countless opportunities to reduce the
complexity of the system. However, the steps we take must be based upon
the bedrock principle that the system is intended to be veteran
friendly both in outcomes and ease of use.
Here are a few options that I have explored. Certainly, this is
only the beginning of a much larger project.
A. Better Evidence
As I have long maintained, the current process used to gather
evidence in veterans benefits claims is inefficient and prone to error.
So long as the evidence gathered in the process is of poor quality, it
does not matter how the adjudication and appellate processes work. No
one will have much faith in the results. Obtaining high-quality
evidence would not only produce better satisfaction with the results,
but would reduce the burden on the appellate system to decide what is
just when the facts are less clear than they could be.
In 2008, I made two key suggestions for improving this process in
an article for the Paralyzed Veterans of America's annual writing
competition, which was published the following year: James D. Ridgway,
Lessons the Veterans Benefits System Must Learn on Gathering Expert
Witness Evidence, 18 FED. CIR. B.J. 405 (2009). The first suggestion
was for VA to create ``opinion forms that--if properly completed by a
physician--will answer all the questions necessary to adjudicate the
claim.'' Id. at 423. VA's current Disability Benefits Questionnaire
initiative is beginning to implement this advice. The challenges it
faces, however, are emblematic of how the underlying complexity of the
system makes streamlining any given part more difficult. As the DBQ
process comes on line, appellate review must not confuse complexity
with improvement, nor overburden the forms with so many requirements
that neither veterans nor their private physicians can understand and
complete the forms in a reasonable amount of time. Evidence that is
never generated and submitted does nothing to help veterans.
My second suggestion was focused on the appellate process itself,
and has yet to be explored. As I stated, even with good opinion forms,
``there would still be many difficult cases in which the B[VA] or the
CAVC decides upon review that the opinions in the record are
inadequate. At such a point, the issues are likely to be complicated,
and the veteran's interest in a speedy resolution merits a more robust
procedure than simply another written request for an opinion.'' Id. at
426. In such cases, the BVA should have the option to conduct a non-
adversarial video hearing with a medical expert to fully explore the
claim and bring resolution to the difficult issues. Id.
These recommendations were based in part upon my experience as a
trial prosecutor, which taught me firsthand that some issues are simply
too difficult to understand through the slow and laborious process of
written requests and opinions. Only a direct discussion allows for
complete understanding. More importantly, such interactions teach
lawyers and doctors how to better communicate with each other, even in
those cases in which a hearing is not held.
Of course, such hearings would require the consent of the veteran
and the participation of his or her representative. However, section
501 of last year's ``The Honoring America's Veterans and Caring for
Camp Lejeune Families Act'' demonstrates that there is support for
allowing the BVA to consider new evidence in the first instance when it
is the most efficient way to resolve a claim quickly and accurately.
B. Realigning Attorney Fee Incentives
A second suggestion that I have made is to restructure the attorney
fee provisions in the appeals process. See James D. Ridgway, Fresh Eyes
on Persistent Issues: Veterans Law at the Federal Circuit in 2012, 62
AM. L. REV. 1037 (2013). The fundamental problem is that the current
system creates strong financial incentives for attorneys representing
veterans to advocate for an increasing number of procedural rules
generated by the federal courts, instead of helping veterans obtain the
evidence needed to bring their claims to resolution. This creates a
game of ``procedure whack-a-mole'' where VA is constantly trying to
respond to new procedural requirements, while the courts are generating
ever more rules even before their previous rulings have been absorbed.
The problem is compounded because attorneys frequently do not continue
representation when a claim is remanded and do not help veterans get
the evidence needed to resolve the claim.
The procedure whack-a-mole game occurs because attorneys have
historically become involved in claims at the CAVC level after the
record is closed and no further evidence may be submitted. There is
almost never sufficient evidence to win a reversal from the CAVC
because the multiple reviews within VA lead to the granting of claims
supported by adequate evidence. Therefore, the CAVC -- like other
federal appellate courts -- rarely concludes that there was clear error
in the fact finding below. Attorneys are forced to argue that there was
a procedural error that requires a remand to the BVA, where the record
will be open again. Accordingly, in most cases addressing novel issues,
the CAVC has a choice only of either affirming the status quo or adding
a new rule that makes the system more complex. Adding simplicity is
never an option.
The problem is compounded by the CAVC's decision in Carpenter v.
Principi, 15 Vet. App. 64, 76 (2001) (en banc), which held that ``a fee
which includes both an [Equal Access to Justice Act (EAJA)] award plus
a contingency fee for work performed before the Court, Board, and VA on
the same claim such that the fee is enhanced by an EAJA award is
unreasonable.'' In other words, in an attorney is paid an EAJA fee for
work at the CAVC level, that payment must be offset from any future
contingency fee. The court meant to be veteran friendly with this
ruling and leave more money from awards in the pockets of veterans.
However, as I outlined in the article listed above, in practice it
makes it financially impossible in many cases for attorneys to continue
representation on remand and actually help veterans in complex cases
obtain the evidence needed to bring their claims to final resolution.
See Ridgway, Fresh Eyes, at 1048-50.
The financial incentives of attorneys need to be realigned with
those of the veterans they represent. To be clear, the problem is the
rules governing the attorneys and not the attorneys themselves. As
president of the Court of Appeals for Veterans Claims Bar Association
and in other roles, I have come to know many of those who represent
veterans for a living. Many are veterans themselves. All whom I have
met sincerely wish to not only help their clients, but also to make the
system the best that it can be for all veterans. However, there is a
limit to the amount of pro bono work that they can do, and most of
their time has to be spent performing fee-generating work that pays
their bills and feeds their families.
A better fee system would allow attorneys to make reasonable
livings generating evidence to resolve cases instead of generating
procedure to prolong them. Rather than awarding fees under EAJA, the
veterans benefits system needs a fee structure that aligns the
financial interests of attorneys with the best interests of their
clients: faster decisions based upon reliable evidence. Designing such
a system will be a challenge. In my article, I outlined some potential
features. However, one essential feature is a rule that replaces
Carpenter with a rule that if an attorney continues representation
before VA after a remand from the federal courts and helps obtain the
evidence necessary to grant the claim, then that is necessarily
different work and must be compensated as such, or attorneys will not
be able to afford to provide that assistance.
C. Mass Fact Finding
Of course, complexity is also driven by the massive number of
claims. Unfortunately, these rules do not resolve disability claims
efficiently. Even though compensation benefits for medical disabilities
are far from the only benefits provided to veterans, they are 95%
percent of the claims appealed to the BVA and (based upon my ten years
of experience with the CAVC) an even higher percentage of the claims
appealed to the courts. The appeals system deals with medical
disability claims because these are the claims that are the hardest.
Our knowledge of medicine is constantly evolving and reveals ever more
complexity about how our brains and bodies work. The appeals system
cannot succeed by addressing medical complexity with legal complexity.
Rather, it must respond with legal simplicity. In the future, the
system needs to rely on simple procedures that allow for a fast,
flexible response to emerging legal and medical issues. Medical and
legal experts need to come together to fully explore issues.
In Heckler v. Campbell, 461 U.S. 458 (1983), the Supreme Court
accepted the idea that agencies could resolve common factual issues
through global findings of fact that provide a uniform answer to all
claims that raise the same issue. Such findings can be published in the
Federal Register and updated as appropriate. Although VA can and does
resolve some cases with regulatory presumptions, less cumbersome
options need to be fostered. There are many cases that cannot be
resolved with presumptions, but could have the number of issues that
need to be proven reduced if global findings of fact were applied, such
as which military occupational specialties are associated with exposure
to noise levels that contribute to hearing loss. Much effort could be
saved if we applied global findings of fact to repetitive issues,
instead of seeking medical opinions and military records in factually
similar cases that should all result in the same outcome. Such
procedures would lead to faster, more uniform results because the
findings would be reviewed only once on appeal, rather than in each
case that has the same issue. VA has begun to utilize this concept with
lists of Navy ships with brown-water service in Vietnam and of units
that served in the Korean DMZ when Agent Orange was used, but it has
much more potential.
VII. Reducing Complexity
Improving the quality of evidence will reduce pressure to add more
rules in the central arena of the benefits system. Eliminating skewed
attorney-incentives will curb the biggest driver of additional
complexity. Mass fact finding will reduce the number of times an issues
must be reviewed. However, we need to do more than just halt the
increase in complexity. We need to reverse it.
As I have explained in more detail in my articles cited above, both
the evidence-gathering and the procedure-whack-a-mole problems were
unintended consequences of the VJRA. The VJRA had the desired effect of
improving outcomes for veterans, making VA more accountable, and
ensuring that the agency follows its procedures. However, it also had
the unintended consequence of creating a proliferation of new rules
that have dramatically lengthened the time it takes to decide difficult
cases. On balance, the VJRA has been a smashing success, but a quarter
century later, the time has come to face the new realities of the
system and ask what approaches are now best for handling the biggest
challenge that the system faces today: too much complexity.
Reversing the growth in complexity has many features, but
fundamentally it is about: (1) focusing on the core functions that the
benefits system and appellate process need to perform, (2) designing
simpler approaches to these functions, and (3) testing those new
approaches to ensure that adjudicators, veterans, and their
representatives actually understand the rules and believe that the
outcomes produced are fair. Perhaps not every piece of the system needs
to be changed, but every piece needs to be examined. We must ask
questions like: ``What notice will actually communicate information to
veterans instead of being discarded as too long and baffling?''
The identification and examination of the pieces needs to involve
all stakeholders. As a proud member of the Sons of the American Legion,
I know that no reform will be possible without the enthusiastic support
of the major veterans service organizations that represent the
interests of the tens of millions of veterans our system serves.
However, the table must include representatives from the courts and
veterans attorneys as well. Most importantly, it should include
independent experts on system effects and complexity who can provide a
neutral voice, constantly steering the dialogue towards defining the
system with as few, simple rules as possible. Therefore, the challenge
for Congress is to determine how best it can foster this conversation
and to facilitate the changes that will make the system simpler,
faster, and more friendly to veterans in the process.
Thank you for considering my views. I look forward to assisting in
the improvement of the system in any way that I can.
NATIONAL ORGANIZATION OF VETERANS' ADVOCATES
The National Organization of Veterans' Advocates, Inc. (NOVA)
thanks Committee Chairman Runyan and Ranking Member Titus for the
opportunity to offer our perspective on the breakdown in the VA's
current appeals process. NOVA is honored to share our views and offer
solutions for this hearing.
NOVA is a not for profit 501(c)(6) educational membership
organization incorporated in the District of Columbia in 1993. NOVA
represents nearly 500 attorneys and agents assisting tens of thousands
of our nation's military Veterans, their widows, and their families
obtain benefits from VA. NOVA members represent Veterans before all
levels of the VA's disability claim process. This includes the Veterans
Benefits Administration (VBA), the Board of Veterans' Appeals (BVA or
Board), the U.S. Court of Appeals for Veterans Claims (Veterans Court
or CAVC), and the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit). In 2000, the CAVC recognized NOVA's work on behalf
of Veterans when the CAVC awarded the Hart T. Mankin Distinguished
Service Award.
NOVA's Previous Suggestions for Improvement
On February 11, 2009, NOVA testified before the Senate Committee on
Veterans' Affairs regarding the problems in the VA's claim adjudication
process. Later that same year, on May 14, 2009, NOVA testified before
the Subcommittee on Disability Assistance & Memorial Affairs of the
House Committee on Veterans' Affairs on the topic of ``Examining
Appellate Processes and their Impact on Veterans.'' For the sake of
brevity, we incorporate NOVA's previous testimonies herein by reference
and crave the Committee's attention to such. In NOVA's previous
testimonies, NOVA provided its perspective on the appeals process as it
exists within the regional offices, BVA, and CAVC. NOVA also suggested
improvements to the process. This testimony will focus and elaborate on
one of those suggestions--amending 38 U.S.C. Sec. 7105 to provide that
the veteran must file only one document to appeal from a regional
office decision to the BVA.
Roadmap of the VA's Current Appellate Process
After a veteran files an application for benefits--referred to as a
``claim''--the servicing VA regional office issues the initial
decision. If the veteran disagrees with any part of the decision, the
veteran may file an appeal with the regional office, and, if the
regional office does not grant the veteran's appeal, the veteran may
continue his appeal to the BVA. For a dissatisfied veteran to get an
appeal from the regional office to the BVA, 38 U.S.C. Sec. 7105
currently requires the veteran to file two different appeals at two
different stages in the process.
To appeal an initial rating decision, the veteran must file a
notice of disagreement (NOD) within one year from the date the decision
was issued. In response to this first appeal--the NOD, the regional
office will issue one of two decisions. If granting the veteran's
appeal, the regional office will issue another rating decision. If
denying the veteran's appeal, the regional office will issue a
Statement of the Case (SOC). Although the SOC will contain a verbatim
copy of any applicable statutes and regulations, many times the SOC's
reasons or bases for the VA's continued denial of benefits is simply a
reiteration of the appealed rating decision. Our experience has been
that SOCs are not helpful to the vast majority of veterans. However, if
after receiving an SOC the veteran wants to continue his appeal to the
BVA, the veteran must file a VA Form 9, Appeal to Board of Veterans'
Appeals, within 60 days from the date the SOC was issued or within one
year from the date the initial rating decision was issued. On the VA
Form 9, the veteran is encouraged to explain why he or she disagrees
with the VA's statement of reasons or bases in the SOC. If the veteran
does not file both the NOD and VA Form 9, there will be no perfected
appeal to the BVA.
After a veteran files a VA Form 9, the regional office must certify
the appeal to the BVA and transfer the case, as well as jurisdiction of
such, to the BVA for further adjudication. Although the veteran must
file the NOD and VA Form 9 within certain statutes of limitations as
mentioned above, there are no statutes or regulations mandating how
quickly the regional office or BVA must respond to or certify a
veteran's appeal.
Breakdown in the Appellate Process
When NOVA testified in 2009, the BVA had reported in its 2008
Annual Report that it took VA an average of 218 days to issue an SOC in
response to a veteran's NOD. \1\ The Board further reported that,
because of the continuous filing of over 4,000 new appeals, it took an
average of 446 days from the initial filing of an appeal to the
ultimate disposition of the appeal. \2\
---------------------------------------------------------------------------
\1\ Department of Veterans Affairs FY 2008 Performance and
Accountability Report, p.119 located at INK ``http://www.va.gov/budget/
report/2008/index.htm'' 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 the date of the notice of
disagreement's receipt until the VA's issuance of the statement of the
case.
\2\ Chief Judge William P. Greene Testimony to Senate Committee on
Veterans' Affairs, pp.1-2 (11/7/07).
---------------------------------------------------------------------------
In fiscal year 2012, VA received 121,786 NODs. However, the number
of SOCs that were processed by the VBA was only 76,685. As a result,
the number of NODs awaiting disposition increased by 76 percent from
fiscal years 2009 to 2012 and, during that period, the time it took VA
to process an SOC increased by 57 percent from 293 days to 460 days on
average. \3\ A 2012 VA Office of Inspector General report noted that VA
regional office managers did not assign enough staff to process
appeals, diverted staff from processing appeals, and did not ensure
that their appeal-staffs acted on appeals promptly because, in part,
those staff members were assigned responsibilities to process initial
claims, which were given a higher priority. \4\ As of August 2012,
after the veteran filed his or her second appeal--VA Form 9--it took an
average of 560 days for VA regional offices to certify and transfer the
appeal to the BVA. \5\ The 2012 Annual Report of the Chairman of the
Board of Veterans' Appeals indicated that average elapsed processing
time after an appeal was certified and transferred to the Board was 251
days. \6\
---------------------------------------------------------------------------
\3\ United States Government Accountability Office (GAO) 13-453T,
Veteran's Disability Benefits: Challenges to Timely Processing Persist
(March 13, 2013) pp. 7-8.
\4\ VA Office of Inspector General, Veterans Benefits
Administration: Audit of VA Regional Office's Appeals Management
Processes, (Washington D.C.: May 30, 2012).
\5\ GAO 13-89 VA Disability Benefits Processing Remains a Daunting
Challenge (Dec. 21, 2012), p. 8.
\6\ http://www.bva.va.gov/docs/Chairmans--Annual--Rpts/
BVA2012AR.pdf, p. 19.
---------------------------------------------------------------------------
Based on the BVA Chairman's 2012 report, the average elapsed
processing times are as follows:
460 days for a veteran to receive an SOC after filing a NOD.
40 days for a veteran to file a VA Form 9 after receiving an SOC.
692 days for the regional office, after receiving a veteran's VA
Form 9, to certify and transfer the appeal to the BVA.
251 days for the BVA to make a decision after receiving the
veteran's appeal from the regional office.
Thus, from the time the veteran files the first appeal--the NOD--he
or she waits on average a total of 1,443 days to receive a decision
from the BVA on that appeal. That is 17 days shy of four years a
veteran must wait for resolution of an appeal!
NOVA's Suggested Repair to the Process
In May 2009, NOVA testified and recommended that Congress amend 38
U.S.C. Sec. 7105 to provide that the veteran must file only one
request for appeal. This statute has been in effect since 1958. See P.
L. 85-857, Sec. 1, 72 Stat. 1241, Sept. 2, 1958. The U.S. Court of
Appeals for Veterans Claims was created in 1989. Thus, prior to the
Court's creation, VA operated without judicial review. The advent of
judicial review has eliminated the need for redundant appeals at the
VA's administrative level. Therefore, the VA's appeal statute should be
amended to require only the filing of a NOD and nothing more. Such an
amendment would eliminate the VA's requirement to issue an SOC and the
veteran's need to file VA Form 9 to reiterate and reaffirm his/her
appellate desires.
As the above-referenced statistics confirm, significant delays
continue in the time taken by VA to process an SOC and certify an
appeal to the BVA. NOVA's proposal to amend the provisions of Sec.
7105 to remove the requirements for the issuance of an SOC and the
subsequent filing of a second notice of an intent to appeal (VA Form 9)
would eliminate these time delays in the appeal process. It will
obviously save time following the submission of a NOD to transfer this
first appeal directly to the BVA without further pleadings, unless the
veteran requests review by a Decision Review Officer (DRO) at the VA's
regional office.
In 2001, VA established the DRO process as an alternative appellate
review at the regional office level. Currently, a veteran must actively
elect the DRO process if he or she desires such review; otherwise, the
veteran's appeal is processed by the traditional appeals process, which
means a staff member of the regional office's appeals team--and not a
DRO-- reviews the veteran's appeal. DRO adjudicators are the VA's most
experienced adjudicators and have the same de novo review authority as
do the 60 Veterans Law Judges of the BVA. If a veteran chooses the DRO
review process, a DRO conducts a de novo review of the claim, meaning a
new and complete review of the claim and evidence without deference to
the original decision. A DRO may make a new decision based upon his or
her review of new evidence or by finding a clear and unmistakable error
in the previous decision. Also, the DRO may make a new decision simply
due to a difference of opinion and without receiving new evidence or
finding a clear and unmistakable error in the previous decision. See
GAO, Veterans Disability Benefits: Clearer Information for Veterans and
Additional Performance Measures Could Improve Appeal Process, GAO 11-
812 (Washington, D.C. September 29, 2011). Currently, if the veteran
elects the DRO process, the DRO is the decision maker who will issue
another rating decision or SOC.
If Sec. 7105 is amended to eliminate the requirements for the
issuance of an SOC and the filing of a VA Form 9, the appeals team at a
VA regional office will be able to redirect staff and resources to
tackling the backlog of appeals as opposed to processing additional and
redundant appeal paperwork. For example, VA could better use its DROs
within the appeals process and avoid unnecessary appeals to the BVA. By
eliminating the SOC and VA Form 9 requirements, the DROs would have
more time to review all NODs filed by veterans and either resolve the
appeals favorably or certify the appeals directly to the BVA without
taking additional time to issue an SOC and wait for the veterans to
file a VA Form 9. Also, Congress' expectation is that VA will ``fully
and sympathetically develop the veteran's claim to its optimum before
deciding it on the merits.'' See H.R. Rep. No. 100-963, at 13 (1988),
reprinted in 1988 U.S.C.C.A.N. 5782, 5794-95. However, at present, the
single most prevalent reason for remands from the Board and the Court
is for further development of the claim by VA. DROs have the authority
to reduce the need for such remands by ordering the development of a
claim that was not fully and sympathetically developed to its optimum
before it was decided on the merits.
By amending Sec. 7105 as suggested, VA could also redirect staff
and resources to processing appeals that are remanded by the Board or
the Court. Veterans whose cases have been remanded have been waiting
the longest for resolution of their appeals. Per 38 U.S.C. Sec. 7112,
the Secretary must ``provide for the expeditious treatment by the BVA
of any claim that is remanded to the Secretary by the Court of Appeals
for Veterans Claims.'' At the BVA, an office or team is designated to
processing appeals remanded from the Court to the BVA, and this process
does seem to streamline Court remands and result in quicker BVA
decisions on such appeals. However, many times, appeals remanded by the
Court to the BVA are, in turn, remanded by the BVA to a regional
office. Also, 46 percent of claims appealed to the BVA are remanded to
a regional office. Per section 5109B, the Secretary must also ``provide
for the expeditious treatment by the appropriate regional office . . .
of any claim that is remanded to a regional office . . . by the BVA.''
It appears, however, that cases remanded to a regional office do not
receive priority ahead of other appeals being processed by a regional
office. Thus, these appeals do not receive expeditious treatment as
dictated by law.
Conclusion
NOVA proposes amending 38 U.S.C. Sec. 7105 to provide that the
veteran must file only one document for appeal, the NOD, in order to
reduce the delays extant in the VA appeal process. Redundant appeals at
the VA's administrative level do not serve the interests of our
veterans and their families. An expedited appeal process is needed to
reduce unnecessary delays. The current delays can be eliminated by
streamlining the VA's appeal process. It is unacceptable that veterans
die while waiting for their appeal to be resolved. The statistics
document the delays inherent in the existing statutory scheme. That
scheme must be amended in order to permit VA to meet this country's
commitment to those who have born the burden.
NOVA respectfully requests that the Committee consider our proposal
to amend the provisions of Sec. 7105 to remove the requirements for
the issuance of an SOC and the subsequent filing of a second notice of
an intent to appeal (VA Form 9). NOVA submitted this proposal in 2009
and here we are again in 2013. Four years have gone by and the fact
remains the same: one request for appeal is enough. Clearly, now is the
time to redirect staff and resources to eliminating the backlog of
appeals, before precious time runs out for our veterans. At this point,
it is a matter of both urgency and necessity.
As always, NOVA stands ready to assist the Committee or VA in
whatever way possible to further eliminate the unreasonable systemic
delays that negatively affect the lives of our nation's veterans and
their families.
We thank you for this opportunity to provide our testimony.
MATTHEW MIDDLEMAS
Chairman Runyan, Ranking Member Titus, and Subcommittee Members. I
am honored and privileged to have this opportunity to offer my personal
views to you regarding the appeals process. This is my own personal
view and I am not acting as an official of the United States Department
of Veterans Affairs and I am not expressing any views of the United
States Department of Veterans Affairs and again, this is my personal
statement as a citizen of the United States. This statement was also
prepared on my own time and not while on duty.
I have been a Decision Review Officer (DRO) at the Milwaukee VA
Regional Office (VARO) since October 2002. I have worked at the VARO
since November 1997. The following are my thoughts and concerns about
the appeals process within the Veterans' Disability Claims process.
Please consider my use of the word ``him'' to mean both male and female
veterans.
The appeals process begins with the claims process itself. Once we
make a decision on a claim - that is ``rate'' the claim - and inform
the Veteran of the decision, the Veteran has one year from the date of
our decision notification letter to file a Notice of Disagreement
(NOD).
Currently there is no required form for the Veteran to submit in
order to file an NOD. There is no required language a Veteran must use
to file an NOD. The veteran must simply express, in writing,
disagreement with a decision.
In May 2013, VA released a new form, VA Form 21-0958, Notice of
Disagreement, which is now being attached to Veterans' decision
notification letters. However, there remains no requirement for this
form to be used in order to file an appeal.
Currently, the veteran has the choice of 2 different options to
review his initial NOD: 1) DRO review, or 2) Traditional review.
A DRO review is a de novo review of the veteran's entire claims
file, which is conducted by a DRO. The DRO has a higher level of
decision-making authority than that of a Rating Specialist, to
including single signature authority to call clear and unmistakable
errors (CUE), and the authority to change a prior decision in the
veteran's favor based on review of the same evidence that was present
in the prior decision (difference of opinion).
A Traditional review can be performed by a Rating Specialist or a
DRO, and it is not a de novo review. The review authority is the same
as a Rating Specialist.
If a veteran files an NOD without indicating a DRO election, we
must write to the veteran, inform him of his options, and give him 60
days to respond. We cannot work the appeal until we either receive a
response or the 60 day response period has expired. If no response is
receive, the appeal defaults to the Traditional process.
Appeals are controlled by the date of receipt of the NOD in a
system called VACOLS (Veterans Appeals Control and Locator System). A
single NOD may express disagreement the decisions rendered in a single
Rating Decision, or it may express disagreement with decisions rendered
in multiple Rating Decisions which have been issued in the prior year.
There is no limit to the number of decisions or ratings with which the
Veteran may disagree. There is also no limit to the number of NODs a
veteran may have pending at any given time. A Veteran may also continue
to file new claims while his appeal(s) pend.
If a Veteran requests a Regional Office hearing, this must be
conducted and we must receive the transcript before a decision can be
rendered. If the Veteran submits or identifies additional evidence, we
must develop for and try to obtain the evidence prior to rendering a
decision. If VA examinations are deemed necessary, we schedule these
and wait for the examination reports before rendering a decision.
Once the appeal issues are ready for decision (RFD), ideally, NODs
should be worked from the oldest pending to the newest received, with
the exception of priorities, which include Homeless Veterans, Seriously
Injured/Wounded Veterans, Congressional Inquiries, and Financial
Hardship cases, etc. Priorities are worked before all other pending
claims.
This also means that a Veteran who has filed multiple NODs over
time, may only receive a decision concerning his oldest pending NOD,
while the issues contained in his other ``younger'' NODs remain
pending.
The file is reviewed and decisions are rendered. If all of the
issues within an NOD can be granted in full, a rating is prepared to
grant the issues. Otherwise, we must issue a Statement of the Case
(SOC) to the Veteran, which provides the applicable VA regulations and
explains the reasons for the decision(s).
Once an SOC is issued, the DRO process is complete. If the appeal
continues, it is now under the Traditional appeals process. DRO
authority does not extend beyond the issuance of the SOC.
In order for a Veteran to continue the appeal, the VA must receive
a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of
Veterans' Appeals, or an equivalent statement of intent to continue the
appeal. There is no legal requirement that a specific VA Form must be
received in order to continue an appeal, but VA must receive some form
of communication in writing from the Veteran or his Representative
indicating an intent to continue the appeal.
A Veteran has EITHER the remainder of one year from the initial
decision notification letter, OR 60 days from the date the SOC was
mailed, to file his Substantive appeal. Otherwise, his appeal rights
for those issues expire, and the NOD is closed.
If the Veteran has filed a timely Substantive appeal, the next step
in the appeals process is to certify the appeal to the Board of
Veterans' Appeals (BVA), which is to transfer jurisdiction of the
appeal to BVA.
However, the Regional Office cannot physically send the claims file
to BVA until all pending NODs and all pending claims have been decided.
There can be no appeal issues pending before the Regional Office at the
time the claims file is sent to BVA; otherwise, BVA will issue a Remand
instructing the Regional Office to issue an SOC on any pending appeals.
Additionally, if the veteran has requested a BVA travel board
hearing or BVA Video conference hearing, the claims file remains
physically at the Regional Office until the BVA hearing can be
scheduled.
In the past, if any additional evidence was submitted which related
to the issues under appeal, then the Regional Office had to review the
additional evidence, and if the appeal continued, it had to issue a
Supplemental Statement of the Case (SSOC) explaining why the additional
evidence did not change the prior decision and give the Veteran 30 days
to reply. If yet more evidence was received, another SSOC was issued
with another 30 day reply period. There was no limit to the number of
SSOCs which could be issued. The appeal could not be certified to BVA
until all of evidence in the claims file had been considered at the
Regional Office level.
If an appeal was certified to BVA and additional evidence was
subsequently received, the Regional Office had to either obtain a
waiver of jurisdiction from the Veteran or his Representative, or the
appeal had to be removed from certified status and another SSOC issued.
Following the 30 day reply period, if no additional evidence was added
to the claims file, the appeal could be re-certified to BVA.
This is the stage where many delays occurred because many Veterans
have multiple appeals pending in various stages of the appeals process.
Additionally, they will also have new claims pending in various stages
of initial development. Therefore, every time additional evidence was
added to the claims file, the Regional Office Appeals Team had to
review all of the appeals to determine if an SSOC was necessary. If so,
then any appeals already certified to BVA had to be removed from
certified status, and the process continued to repeat itself until such
time that all evidence in the claims file had been considered in a
decision at the Regional Office level. It was only then that we could
physically transfer the file to BVA jurisdiction.
Effective February 2, 2013, Section 501 (Automatic waiver of agency
of original jurisdiction review of new evidence) of Public Law 112-154
took effect. This change in law established an automatic waiver of
Regional Office (agency of original jurisdiction) review of evidence
received after receipt of the substantive appeal. The evidence is
subject to initial review by BVA unless the appellant specifically
requests, in writing, initial review by the Regional Office.
However, to date, we have received no guidance from Compensation
Service and Pension and Fiduciary Service on how to implement this
provision.
Therefore, at least at the Milwaukee Regional Office, we are still
issuing SSOCs until we receive guidance to do otherwise. I would also
note that I personally have seen two separate BVA Remands dated from
April 2013, which is after the change in law, in which a BVA judge
noted there was evidence in the claims file received after the
substantive appeal which the Regional Office had not considered. Both
Remands ordered the Regional Office to consider this evidence as part
of the reasons for the Remand.
Hopefully, however, Section 501 of Public Law 112-154 will help us
certify and transfer appeals to BVA in a much more timely manner. It
will also, hopefully, reduce the number of Remands caused by the
submission of additional evidence without a waiver of review by the
agency of original jurisdiction.
As you can see, the appeal process is complex and concerns remain.
As there is no requirement to use a standardized form to file an
NOD or a Substantive appeal, it is easy to miss an appeal as it may be
hidden on page 22 of a veteran's handwritten statement.
Furthermore, it is not always clear if the Veteran is actually
filing an appeal or not. For example, use of the word ``reconsider''
may or may not mean disagreement. We try to clarify intent with the
Veteran or Representative, but even then, the Regional Office may
consider the veteran's statement to be a new claim and issue another
Rating Decision, but then BVA considers the same statement to be a
missed NOD and Remands the issue for the Regional Office to send an
SOC.
VA's primary focus over the past several years has, understandably,
been to find ways to break the backlog of claims.
This has resulted in Journeyman RVSRs feeling constantly pressured
to produce more and more decisions at a faster and faster rate, while,
at the same time, having their jobs threatened if their accuracy drops
in the process. There are, unfortunately, experienced Journeyman RVSRs
who have either quit or retired because they could not tolerate the
pressure any longer.
This has resulted in trainee RVSRs (Rating Specialists) being
released to single-signature rating before they are truly competent or
comfortable in their duties.
The focus on breaking the backlog of claims resulted in the hiring
of numerous RVSR trainees over the past several years. These
individuals needed mentoring as well as someone to review the accuracy
of their work until management felt they were sufficiently competent to
rate single-signature. In my office, the majority of new hires and
internally promoted employees needed second signature review of their
work for at least one year before they reached an accuracy level
sufficient for single signature. With the large number of trainees in
our office, we did not have a sufficient number of Journeyman RVSRs to
complete the reviews. Additionally, the RVSRs were being mandated to
rate claims above all else. Therefore, the DROs were assigned co-
signing and mentoring duties, which took up significant amounts of our
time, which were then not spent working appeals.
RVSRs are being trained to use ``tools'' to help them generate
their decisions, so there is nation wide consistency in decision
making. However, unfortunately, it appears the RVSRs are not being
fully trained on how to actually analyze all of the evidence in a
claims file, so they are not always entering the most accurate and
reflective evidence of a Veteran's disability picture. Many RVSRs are
now simply entering the data found in a VA DBQ Examination report into
a tool, rather than looking at and weighing all of the evidence in the
claims file. As a result, we are getting appeals from Veterans and
their Representatives noting the other evidence of record which did not
appear to be considered.
Likewise, current rating procedures only require an RVSR to provide
the reasons for the decision. There is little to no discussion in the
Rating Decision of how evidence was weighed and evaluated. As a result,
we are getting appeals from Veterans and their Representatives because
they simply do not understand how we arrived at our decision.
Understandably, DROs are some of the most experienced and
knowledgeable employees concerning the claims process at most Regional
Offices. However, as a result, we are regularly pulled from our appeal
work duties and assigned other projects. During the recent Nehmer
review, I was one of three DROs in our office who worked Nehmer claims
exclusively for almost six months. We did not work any appeals during
the Nehmer review. I personally spoke to DROs from other offices who
also reported they were not working any appeals during the review.
Most recently, the Milwaukee appeals team was informed our office
would be brokering-in over 5,000 claims in various stages of
development, all of which are over one year old. The appeals team was
informed we would be rating claims full-time through the end of the
fiscal year, and other than priority cases, we would not be working any
appeals during this time frame.
It is fully understandable that management needs the assistance of
DROs to accomplish their goals; however, it is at the expense of the
appeal workload, and as a result, appeals keep getting older.
In many Regional Offices, RVSRs work the Traditional appeals, and
the DROs work the DRO elections. Working traditional appeals is
actually part of the job standard for RVSRs. However, with the concern
for the backlog of claims, the responsibility for working Traditional
appeals is falling mainly on the DROs. RVSRs are focusing on rating
claims, not Traditional appeals. There are far fewer DROs than there
are RVSRs. DROs simply cannot handle the volume of pending appeals on
their own. If we are going to make a dent in the appeal backlog, then
we are going to need the assistance of the RVSRs.
Finally, VBMS is a concern for appeals. First, while it has been
rolled out nation wide, it is not fully functional and has more ``work
arounds'' than can be described here. The program regularly crashes for
at least some portion of the day, so you cannot even use it. Decision
makers regularly lose work they have been working on for hours. Either
the program times them out and they lose their work, or they get an
error message and everything just disappears. The entire program seems
designed for initial claims processing, which does not require a
detailed explanation of the reasons for the decision. However, for
appeals, we still have to explain everything. The program has no
glossary or autotext, which makes typing a decision even longer. It has
no spell check, so the quality of our writing is poor in many cases. It
does not allow you to copy and paste from another document, which just
requires more time to type out the decision, thus getting less work
accomplished during the day. Without any doubt, it has consistently
taken me far longer to process an appeal using VBMS and VBMS-R than it
ever took with a paper file and RBA 2000.
Finally, there really has been no guidance, to date, on how appeals
will be worked into VBMS. Currently, appeals are controlled through
VACOLS without end products. Therefore, any NODs which are received
must be sent to the appeals team so a VACOLS record can be established.
Unfortunately, some NODs are being scanned into an electronic VBMS file
without ever being sent to the appeals team. Therefore, the appeals
team does not even know an NOD was received unless someone has a reason
to review the VBMS file for a different claim, or a Representative
contacts us asking about the status of the Veteran's appeal. Right now,
under current procedures, it is very easy to lose control of an appeal
in VBMS.
Unfortunately, in the entire claims process, appeals seem to be
forgotten. When changes are made to the claims process and/or the
programs used to process claims, very rarely is there direction or
discussion on how the changes will affect appeals.
While reducing the length of time a Veteran must wait to receive a
decision on a claim is very important, it cannot be at the expense of
those veterans who are waiting for a decision on an appeal. As an
Agency, we must also be focused on breaking the backlog of appeals. Why
should a Veteran get a decision on his initial claim in 125 days (VA's
goal), but then have to wait 2 to 3 years, if not longer, for a
decision on his appeal?
Thank you again for the opportunity to express to you my personal
views of the appeals process and thank you for caring for our nation's
veterans.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE AFGE
NATIONAL VETERANS' AFFAIRS COUNCIL
Overview
The American Federation of Government Employees and the AFGE
National Veterans' Affairs Council (hereinafter ``AFGE''), the
exclusive representative of employees processing appeals at Veterans
Benefits Administration (VBA) Regional Offices (ROs) appreciates the
opportunity to share our concerns and recommendations regarding the
claims appeals process.
Summary of Recommendations
Decision Review Officers (DROs), employees at the RO level
responsible for appeals, should work consistently on appeals issues,
rather than being assigned to work on claims developing and rating.
AFGE's response from employees consistently stated that DROs are
regularly taken off of working on appeals cases and moved to work on
developing and rating cases. This issue arises on a yearly basis, when
DROs are diverted from appeals for several months at the end of the
year.
VBA should adopt a new work credit system since DROs do not receive
proper credit for a significant number of tasks they complete on a
daily basis. DROs receive no credit for deferred ratings and other
necessary tasks they are required to complete on a daily basis.
Consequently, DROs are denied a fair opportunity to meet their
performance standards and feel pressured to rush through tasks for
which they receive no credit, rather than focusing on the task at hand.
VBA should place a higher emphasis on quality in developing and
rating claims. A significant number of errors result from the lack of
quality at the Veterans Service Representative (VSR) and Rating VSR
(RVSR), leading to more appeals. VBA must focus on quality as well in
order to limit the number of appeals through performance standards and
incentives for employees.
DROs need additional training on the appeals process especially
when new laws and regulations are enacted. Most DROs reported almost no
appeals specific training for appeals.
AFGE urges the Subcommittee to address a worsening morale problem
among DROs that is impacting recruitment and retention. DROs are often
the face of VBA appeals for the veteran, and expressed frustrations
with representing the agency when they reach out to veterans who have
been waiting over three years for their appeals case to be processed.
The DROs believe that a renewed emphasis from VBA on appeals would help
morale and productivity at their ROs.
AFGE received two suggestions from several ROs that we believe the
Subcommittee should consider as time saving measures: (1) elimination
of the requirement that the veteran elect either a DRO review or a
traditional appeal; and (2) shortening the time to submit a Notice of
Disagreement (NOD). Employees reported that the appeals are delayed
significantly by waiting for the veteran to declare which type of
appeal they prefer. Also, veterans regularly wait the a full year to
file NODs; if these were required to be filed within a shorter
timeframe, the appeals process would move much more smoothly. AFGE
believes the Subcommittee should examine these recommendations in depth
before implementing any changes.
AFGE surveyed its members processing appeals to address workforce
issues. We received responses from the following ROs that are discussed
below:
Portland, OR
Chicago, IL
Milwaukee, WI
Winston Salem, NC
Denver, CO
Little Rock, AR
St. Petersburg, FL
Montgomery, AL
VBA employees responding to the Subcommittee's request consistently
expressed their dedication and sense of purpose in serving the
veterans. Over half (52%) of VBA employees are veterans themselves, and
many of these employees receive benefits from the VA. Therefore, many
have direct personal experiences with the claims process. Despite the
many challenges they face, VBA employees uniformly remain steadfast in
their goal to serve veterans, work hand in hand with Veteran Service
Organizations, and do all that they can to work with VA to lower the
unacceptably high backlog of appeals cases.
DROs not working on appeals cases
Nationwide, DROs consistently reported that they are regularly
diverted from appeals work to perform other work. Although there
appears to be no standardized process for determining when DROs should
be diverted to other tasks, employees reported that it has been a
regular practice during the last quarter of each year to assign DROs to
developing and rating cases. In one RO, a DRO mentioned that some
appeals personnel have not worked on appeals in three years, and
instead work ratings for the Veterans Service Center.
The inconsistency adds to the backlog of appeals claims. Most ROs
reported that they do not have enough personnel to catch up on all of
the appeals once their appeals team stops processing appeals.
Several recent VBA policy decisions also contributed to DROs not
working on appeals cases. VBA instituted mandatory overtime at every RO
through September 2013. Right now, DROs are only allowed to work on
developing and rating cases during mandatory overtime. VBA should allow
DROs to work on appeals during mandatory overtime as well. Also,
following Undersecretary Hickey's recent Fast Letter for processing two
year old claims, DROs were consistently moved off of appeals work and
pushed into processing the two year old claims.
Broken Work Credit System
DROs do not receive proper work credit for a significant amount of
tasks they complete on a daily basis.
For example, deferred ratings occur on a daily basis for DROs.
Often times, DROs must send the claim back to the VSR for additional
development (e.g. more medical evidence); DROs do not receive no credit
for this work (because no appeal action is taken). DROs also have to
make complex exam requests with various medical opinions, which can up
to several hours depending on the complexity of the issue. It is
important to spend time on these issues since the veteran should be
assisted and informed accurately about additional medical evidence they
will need for their claim. However, a DRO could spend an entire day
working on these cases and receive no production credit for the day.
DROs also receive no credit for supplemental development.
DROs also do not receive adequate credit for multi-issue and
complex cases. Veterans are regularly filing claims with dozens of
issues and the appeals have a similar level of complexity. Employees
also are denied sufficient credit for processing cases involving
complex claims such as military sexual trauma and TBI.
Employees reported a significant amount of productive time lost due
to breakdowns in VBMS. VBMS is in the process of being rolled out
nationally. However, the system still has frequent and significant
malfunctions, at both the RO and national levels. During VBMS shutdowns
or malfunctions, employees receive no adjustment to their work credit
requirements for lost production time.
Greater Emphasis on Quality
VBA continues to claim they are placing greater emphasis on quality
for work performed by VSRs, RVSRs, and DROs, by pointing to the
improved quality numbers. However, by counting issues instead of entire
cases when determining, the numbers have improved through this measure
alone. While this format for calculating quality is more fair and
accurate, it is misleading to say that this demonstrates an improvement
in quality.
VBA employees in ROs nationwide reported the continued emphasis on
production above all else. This emphasis leads to more mistakes by
employees rushing through claims and results in more appeals. The DROs
surveyed all reported that many appeals result from errors at the
development and rating level and the entire process could be avoided
for some veterans with an improvement in quality.
Additional Training on Appeals Process
DROs in each RO described the training for appeals as essentially
non-existent. Milwaukee stated that there is no DRO specific training.
DROs must consistently keep up with new policies and regulations, but
they are not provided adequate time during the day to learn about and
absorb this new information. A DRO from Chicago went through appeals
training in 2011 in a central location and said the quality was high,
but there is no equivalent at the local level.
Most DROs reported that they receive the majority of their training
in the same classes as RVSRs, which is redundant and irrelevant to
appeals work.
Low Morale
Every RO surveyed reported that morale at their office is
particularly low at this point in time. Many times, DROs are the face
of the VBA appeals process since they must regularly contact veterans
about the status of their appeal. The DROs reported dealing with
understandably frustrated veterans who have been waiting years for
their appeals decision. VBA employees, 52% of which are veterans, are
incredibly dedicated to serving veterans and providing quality and
timely work. However, since VBA consistently places less emphasis on
the appeals process, appeals at ROs continue to pile up, leaving
veterans waiting years for decisions.
The problems with the work credit system also contribute to low
morale amongst DROs. DROs are pushed hard on the production side while
the emphasis is lost on quality. A DRO from Milwaukee observed that it
appears that management is no longer interested in producing quality
work, which further lowers the morale of this dedicated workforce.
Potential Time Saving Changes in the Appeals Process
A DRO in Chicago suggested that time could be saved by removing the
requirement for the veteran to elect whether or not they want a DRO
review or a traditional review. They believed that this process adds at
least six months to the appeal process due to the required additional
correspondence with the veteran, followed by the case being pushed to
the back of the queue (which could be further delayed by additional
documentation that comes in during the delay). The Chicago DRO also
suggested that if all cases received a DRO review upfront, a lot of the
appeals issues could be resolved on the spot without the need for the
case to continue through the entire appeals process.
Chicago, Milwaukee, and Winston Salem ROs all reported that the
appeal period should be lowered from one year to somewhere between 60-
90 days. These offices believed that since veterans already have other
opportunities to file appeals after their rating, this will speed up
the process overall if they file within 60-90 days.
Thank you for the opportunity to share the views of AFGE and its
National VA Council.
THE AMERICAN LEGION
Nationwide, The American Legion has over 2,600 accredited
representatives assisting veterans and their dependents seeking
benefits from the Department of Veterans Affairs (VA). Additionally, 13
national appeals representatives are employed by The American Legion to
represent claimants at the Board of Veterans' Appeals (BVA). Our
national appeals representatives fervently advocate on behalf of
veterans and their dependents to rectify errors committed by VA
personnel during the adjudication process. We are honored to have
represented over 698,000 veterans and their dependents in fiscal year
2013 resulting in the awarding of over $5.7 billion in VA benefits
during the fiscal year.
On behalf of National Commander James Koutz and the 2.4 million
veterans of The American Legion, we would like to thank this Committee
for the opportunity to address the critical issue of the appeals
backlog affecting veterans across the nation.
From January 1, 2010 through June 1, 2013, The American Legion has
represented 29,542 veterans and their dependents in their quest for
veterans' benefits at BVA. Of these claims, The American Legion
effectively proved the VA erred or failed to fully develop a claim in
21,632 cases. Of the 21,632 claims, 27 percent of claimants had
benefits awarded by the BVA, indicating VA erred in its original
adjudication, and only 45 percent of the claims proved to be fully and
properly developed, indicating that VA failed in its development
process more than half the time.
According to VA's Monday Morning Workload Report published on June
3, 2013, VA states they correctly adjudicated claims with 89.6 percent
accuracy over the previous three months. Although the BVA statistics
represent a portion of the claims adjudicated at the 56 VA Regional
Offices (VAROs) and Appeals Management Center (AMC), we submit the
statistics produced by BVA provide a sample of the quality in
adjudication nationally at the VAROs. The accuracy statistics as
indicated by BVA suggests VAROs are providing quality decisions in less
than one out of four claims; these statistics are in stark contrast to
VA's published report.
Unquestionably, the appeals process proves time-consuming and
frustrating for the veteran population. By the time BVA renders a
decision, a claimant will often have spent many years in the appeals
process, beginning with enduring the backlog at the VARO. Furthermore,
in roughly half of the claims presented to BVA, the claims are remanded
with clear instructions to AMC on how the claim should be developed:
Included within a BVA remand, clear instructions are provided to
AMC how to proceed with the claim. Instructions often include:
u Providing a veteran with a Veterans Claims Assistance Act (VCAA)
notification
u Providing a VA C&P examination
u Gathering information from other federal agencies pertinent to
the development of the claim
u Providing the veteran with ample opportunity to supply private
records pertinent to the development of the claim
Common reasons for BVA to remand claims include:
u Failure to provide the VCAA notification
u Inadequate VA compensation and pension (C&P) examinations
u Failure by veterans service representatives (VSRs) to properly
develop claims, to include considering claims not only as directly
related to service, but also manifesting by a previously service
connected condition or aggravated by a previously service connected
condition
Upon the completion of the necessary development of the claim, AMC
renders a decision. A veteran has the right to appeal any decision
provided by AMC; if a claim is denied, the claim is automatically
returned to the BVA for review. Again, The American Legion's national
appeals representatives will review the evidence, prepare an informal
hearing presentation, and submit the claim to BVA for their review.
Unfortunately, despite clear instructions given by BVA
administrative law judges within its original remand, The American
Legion's representatives frequently successfully argue that AMC failed
to comply with the clear instructions resulting in yet another remand.
Insiders familiar with this process of repeated remands for the same
claim refer to this endless cycle as the ``perpetual remand wheel''
where a claimant has to endure even more months, and often years, of
claim development prior to receiving a final decision from BVA. Of
course, this process can continue well beyond BVA's final decision if
the veteran elects to appeal BVA's decision to the United States Court
of Appeals for Veterans Claims.
The heart of this matter largely lies in the manner VA initially
adjudicates its claims. VA Secretary Eric Shinseki and Undersecretary
for Benefits Allison Hickey have repeatedly stressed the need for VA to
improve its accuracy in claims' adjudication. VA often points to the
accuracy percentage provided in the Monday Morning Workload Report;
however, those statistics are fluid. If a claimant appeals a VA rating
decision, and it is ultimately remanded or granted, then logic would
dictate that the claim was inaccurately rated by the VARO, and the
accuracy statistic would be adjusted accordingly. Again, we understand
that BVA adjudicates a small portion of claims compared to VAROs;
however, if VA desired to arrive at a more accurate statistic regarding
claims' adjudication accuracy, the statistic should reflect grants and
remands by BVA. In reality, VA would not be able to truly ascertain the
quality of its adjudications unless each and every veteran and
dependent appealed each decision rendered by VAROs.
VA has a daunting challenge forecasted for their future. Secretary
Shinseki has assured the veteran community that claims will be
processed within 125 days and with 98 percent accuracy. Whether an
individual wishes to lend credence to VA's Monday Morning Workload
Report statistics regarding accuracy or the statistics formulated by
BVA, it is clearly evident VA needs to vastly improve its adjudication
accuracy to meet the Secretary's objective.
It is also necessary to discover methods to expedite the manner
that a veteran can receive a positive nexus opinion linking a current
diagnosed condition to either military service or a previously service
connected condition. Many veterans utilize the VA healthcare system for
treatment. Under the current structure, a VA primary care provider may
treat the condition; however, the provider may not provide a nexus
statement regarding the condition that may allow veterans to become
service connected. This results in a cumbersome process; a veteran has
to file for the condition and wait until a veterans' service
representative schedules the veteran for a VA C&P examination. It is
particularly frustrating for veterans when their primary care provider
has indicated that the condition could be service connected, and the
provider is unable to provide supporting medical opinions, including
opinions relating to causation of a condition, when it is medically
possible to do so. \1\''
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\1\ Resolution No. 24, OCT. 2008
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Resolving the timeframe that a claim waits in appeal status is
largely connected with the manner VA originally adjudicates claims. If
VA properly develops claims and renders a decision that is in
accordance to the laws and regulations governing veterans' law, then
logic would dictate that fewer appeals would occur thereby reducing the
backlog of appeals. Additionally, if AMC staff would adhere to the
remand instructions prepared by BVA, fewer cases of multiple remanded
claims for development would need to occur.
The American Legion again thanks the Committee for its diligent
attention to the claims process. For additional information regarding
this testimony, please contact Mr. Ian de Planque at The American
Legion's Legislative Division, (202) 861-2700 or [email protected].
DISABLED AMERICAN VETERANS
Chairman Runyan, Ranking Member Titus and Members of the
Subcommittee:
On behalf of the DAV (Disabled American Veterans) and our 1.2
million members, all of whom are wartime wounded and injured veterans,
thank you for asking DAV to submit testimony to the Subcommittee for
today's hearing examining the multi-layered processes and procedures
available to veterans who believe that their claims for benefits have
not been properly or fully granted by the Veterans Benefits
Administration (VBA). As the nation's leading veterans service
organization (VSO) assisting veterans seeking disability compensation
and other benefits, DAV has tremendous experience and expertise
relating to the processing of claims as well as the various ways
veterans may appeal adverse actions and decisions.
Mr. Chairman, over the past several years, much attention has been
rightly focused on efforts to reform VBA's claims processing system and
reduce the unacceptable backlog of pending disability compensation
claims. DAV continues to advocate that the only way to truly address
both of these problems is by creating a new system and culture focused
on getting each claim done right the first time.
However, even if VBA is able to reach its overly ambitious targets
of all claims completed within 125 days at 98 percent accuracy that
will still leave a large number of decisions that veterans will choose
to appeal in some manner. Just as the number of claims is expected to
continue rising in the coming years, particularly as more combat
veterans return from battlefields across the globe and separate from
service, so too are the number of appeals projected to rise
commensurately. And just as there is an unacceptable backlog of claims
pending at VBA, there is also an unacceptable backlog of appeals
awaiting decisions from the Board and the Court.
To fulfill our mandate of service to America's wounded, injured,
and ill veterans and the families who care for them, DAV employs a
corps of more than 260 National Service Officers, all of whom are
wartime service-connected disabled veterans who successfully complete
their rigorous training in concert with VA's Vocational Rehabilitation
and Employment Service. The military experience and personal claims
coupled with treatment experiences of DAV NSOs through military health
care and VA not only provide a significant knowledge base, but also
help promote their passion for helping other veterans through the
labyrinth of the VA system. DAV NSOs are situated in all VA regional
offices (VARO) as well as in other VA facilities throughout the nation.
During 2012, DAV NSOs interviewed over 187,000 veterans and their
families; reviewed more than 326,000 VA claims files; filed over
234,500 new claims for benefits; and obtained more than $5.1 billion in
new and retroactive benefits for the wounded, injured, and ill veterans
NSOs represented in more than 287,000 VA rating actions.
To further assist veterans whose claims are denied or otherwise not
fully satisfied, DAV employs National Appeals Officers (NAOs) located
at the Board of Veterans' Appeals (Board) whose duty is to represent
veteran claimants in their appeals before the Board here in the
nation's capital. In FY 2012, our cadre of NAOs provided representation
in 31.1 percent of all appeals decided before the Board, a caseload of
approximately 13,789 appeals. Nearly 47 percent of the cases
represented by DAV resulted in remands for further development. These
remands resulted in additional consideration or development for over
6,400 claimants who had appealed cases that were not adequately
considered by VARO's. In more than 29 percent of the cases, involving
over 4,000 appellants represented by DAV, the veteran claimants'
appeals were allowed, and the VARO denials were overturned. This means
that approximately three-quarters of the appeals represented by DAV
NAOs resulted in original decisions being overturned or remanded for
additional development and re-adjudication.
When the Board determines a case requires further development
before it can render a final decision, the cases are remanded to the
Appeals Management Center (AMC) in Washington, D.C., with explicit
instructions on the necessary actions. DAV NSOs collocated at the AMC's
offices ensure that those cases for which we hold power-of-attorney
(POA) are properly reviewed and re-adjudicated by AMC staff and that
the Board's remand requirements are successfully met.
In addition, once the Board reaches a final decision veteran
claimants have the right to appeal a Board decision to the United
States Court of Appeals for Veterans Claims (Court). While DAV does not
employ attorneys to provide representation before the Court, we do work
closely with two private law firms that have agreed to provide pro bono
services to veteran claimants pursuing their appeals. In 2012, these
pro bono attorneys offered free representation before the Court in
nearly 1,300 denied appeals and provided representation in over 1,000
of those cases. Since the inception of DAV's pro bono program, our
attorney partners have made offers of free representation to more than
3,700 veteran claimants and have provided free representation in over
2,200 cases.
As we continue to state, if VBA can create a culture of deciding
each claim right the first time, it will save tremendous time and
resources for both veterans and the Department. The best way to resolve
differences between what a veteran claimant seeks and what VBA provides
is at the earliest stage in the process. By the time it reaches the
Board or the Court, it is typically years after the claim was
originally filed. For that reason, any review of the appellate process
should begin with opportunities for resolution at the VARO level.
Actually, the first opportunity to address concerns or challenge a
VBA claims decision is by NSOs who are given 48 hours to review claims
decisions before they are formally issued. Our NSOs examine the
evidence considered, the decision rendered, and the reasons and bases
stated for that decision. When we disagree with the decision, our NSOs
can discuss directly with the VBA rating specialist who rendered the
decision in order to discuss the particulars of the case and request
that it be reconsidered before being issued. If still not satisfied, an
NSO can bring the case to a Coach (supervisor), service center manager,
or even the VARO Director to continue to seek changes. In some cases,
NSOs are successful in pointing out evidence, facts, rules, regulations
and/or laws that have not been properly applied, thereby resulting in a
better, more accurate decision being issued by the VARO. Unfortunately,
there are still too many instances in which the VARO effectively
ignores valid arguments put forth by NSOs, resulting in unnecessary
delays and denials of claims.
Once a decision is rendered by the VARO, the veteran has the right
to appeal the decision to the Board and has one year from the date of
notification to do so in the form of a Notice of Disagreement (NOD).
DAV NSOs assist veteran claimants in initiating the NOD and all other
steps at the VARO level. Because the majority of veteran claimants
intent on appealing the VARO's decision submit their NOD well within
the one year period, a false belief has come to light within VBA that a
reduced appeal period of 180 days is all that is necessary. In fact,
VBA recently testified before the Senate Veterans' Affairs Committee
that the appeal period should be shortened to 60 days from the date of
decision notification. DAV strongly disagrees with shortening the
appeal period because many veteran claimants need the entire current
one-year period to gather any additional supportive evidence. As such,
DAV is opposed to any attempt to erode this important aspect of the
appellate process simply for statistical gains for VBA.
In filing the NOD, the claimant is provided with the option to seek
additional review of the decision at the VARO by a Decision Review
Officer (DRO) in addition to a formal appeal to the Board. In most
cases, our NSOs recommend that veteran claimants utilize the DRO
process because a DRO has de novo review authority and can overturn the
decision, whereas the Board is limited in its scope of review. The
choice to pursue resolution through the DRO process resides with the
veteran claimant and if they do not seek DRO resolution the appeal will
continue to the Board; however, the DRO process is typically much
quicker than an appeal before the Board and allows for additional
opportunity for resolution at the VARO level.
A major concern that continues to plague the DRO process is the
assignment of routine claims work to DROs by VARO leadership who are
focused on reducing their pending workload. This is not how the process
was intended to work, as these skilled individuals should be performing
actions within the limited scope of appeals. In fact, prior to
implementing the DRO process years ago, VAROs had specific individuals
working as hearing officers, who amongst other duties would regularly
conduct local hearings following the submission of a NOD from the
veteran claimant. If requested by the veteran claimant, the hearing
officer would conduct the hearing and render a new decision in the
case. Many felt this process to be more beneficial to those veteran
claimants who had representation; for this reason, as well as hearing
officers becoming inundated with work, the DRO process was created to
be more expansive and beneficial to all veterans.
Nonetheless, as stated, DROs are often not performing only appeals
related actions; rather, they are routinely pulled away from their
respective duties to assist with development and rating actions
normally performed by veteran service representatives (VSRs) and rating
veteran service representatives (RVSRs). In order for the DRO process
to be fully effective as envisioned, VAROs must not divert DROs from
their intended work to help meet local work quotas and targets. If the
veteran claimant remains unsatisfied with the DRO's decision, the
appeal will continue to the Board.
Additionally, when submitting a VA Form 9, Appeal to Board of
Veterans' Appeals, thereby perfecting the appeal and outlining the
basic contentions and reason for appeal, the veteran claimant can
request a formal hearing before the Board. Hearings are conducted
either in person at the Board with the veteran claimant bearing the
cost of travel; a hearing before the travelling section of the Board at
the local VARO; or a hearing before the Board by way of live
videoconference, which are usually set up for the veteran claimant at
the nearest VARO. The first two offer in-person or face-to-face
interaction with the Board member but there are challenges in terms of
cost and delay.
As stated, the veteran claimant can appear before the Board in
Washington, DC, but the veteran claimant must bear the cost of travel.
Should the veteran claimant wish to appear before the travelling
section of the Board at the nearest VARO, the time it takes to actually
have the hearing can be 18 months to 2 years because of the amount of
veteran claimants requesting this type of hearing and the Board's
limited ability to hear cases during the periods when they are at
VAROs, usually about 100 per week.
The more expedient type of hearing before the Board is the
videoconference hearing. While this type of Board hearing has been slow
in gaining wide acceptance, nearly 40 percent of all Board hearings
last year were conducted via videoconference. In fact, DAV recommends
this type of hearing to all veteran claimants who wish to appear before
the Board as the technology and equipment used between the Board and
VARO is quite satisfactory and the decision results are not adversely
impacted. Furthermore, DAV supports the use of videoconference hearings
as the default choice for hearing by the Board, provided the veteran
claimant retains the absolute right to choose an in-person hearing
before the Board in the alternative.
The Board makes final decisions on behalf of the Secretary on
appeals from decisions of local VAROs. It reviews all appeals for
benefit entitlement, including claims for service connection, increased
disability ratings, total disability ratings, pension, insurance
benefits, educational benefits, home loan guaranties, vocational
rehabilitation, dependency and indemnity compensation, and health care
delivery, primarily dealing with medical care reimbursement and fee-
basis claims.
The Board's mission is to conduct hearings and issue timely,
understandable, and accurate decisions for veterans and other
appellants in compliance with the requirements of law. While the BVA
controls jurisdiction over a host of issues, historically, 95 percent
of appeals considered involve claims for disability compensation or
survivor benefits.
In FY 2012, the Board conducted 12,334 hearings, about 2,400 fewer
than the prior year, and issued 44,300 decisions, about 4,300 less than
in FY 2011. The average cycle time from receipt to decision was 117
days, two days fewer than the year prior. The Board's accuracy rate for
FY 2012 was reported at 91 percent, about the same as the prior year.
While the number of appeals filed fell from 38,606 to 37,326 in FY
2012, the number of appeals docketed at the Board increased from 47,763
in FY 2011 to 49,611 in FY 2012.
Based on historical trends, the number of new appeals to the Board
averages approximately five percent of all claims received; as the
number of claims processed by the VBA is expected to rise
significantly, especially with the new Veterans Benefits Management
System (VBMS), so too will the Board's workload rise accordingly. It is
worth noting that in both FY 2011 and FY 2012 a significant number of
VARO employees who would otherwise have normally worked on certifying
appeals to the Board were instead focused on processing Nehmer and
other Agent Orange-related cases, creating a backlog of appeals to be
certified.
In addition, while the VBA is continuing the implementation of its
new organizational model and VBMS system, the focus on processing
claims has also shifted away from certifying appeals to the Board. With
the Nehmer work now finished, and as the transformation process winds
down over the course of the year, the VA is expected to turn to the
backlog of pending appeals to be certified. This will undoubtedly lead
to a surge of new appeals being sent to the Board in the next couple of
years, further impacting the Board's already resource-constrained
capacity to handle the rising workload.
Yet, despite the fact that workload is rising, and is projected to
grow significantly as the VAROs begin to process both the backlog of
claims and pending appeal certifications, the budget provided to the
Board has been declining, forcing it to reduce the number of employees.
Although the Board had been authorized to have up to 544 FTEEs in FY
2011, its appropriated budget could support only 532 FTEEs. In FY 2012,
that number was further reduced to 510. Recently, the Board was
provided an additional $8 million, which has allowed them to begin
increasing staff. As a result, it is our understanding the Board
recently added new staff and will continue to do so with a projected
FTEE of 538 by the end of FY 2013 and an FTEE of 618 by end of FY 2014.
This increase in staffing will significantly help the Board reduce its
pending caseload; however, we are concerned it may not be enough to
keep pace with projected future increases in workload.
Moreover, this increase does not make up for the downward trend
over the past several years at the pace the Board's workload is
projected to rise. Additional workload is also expected to come from
cases recently decided by VBA through its provisional rating decision
program, wherein all cases older than two years were identified and are
in the process of being rated before the end of June, as well as the
paperless VBMS system directed at producing ratings quicker. Based on
the expected workload increase in FY 2014, and even adjusting for
productivity gains, we believe the Board is going to experience an
increase of appeals from the current caseload of approximately 45,000
to a projected caseload of approximately 112,000 by FY 2017.
Concurrent with staffing increases, the Board will need to ensure
that it has sufficient office space to house new FTEE. We are concerned
about reports that as a result of VA initiatives to consolidate and
eliminate excess office space, the Board may not have sufficient space
for the planned staffing increase. Furthermore, in order for the Board
to work efficiently, it will be necessary to have VBA's new IT system,
the VBMS, fully deployed and integrated with both VBA and the AMC. VBA
must prioritize the final development and implementation of VBMS to the
Board.
Beyond the Board, the veteran claimant has the right to appeal
adverse decisions to the United States Court of Appeals for Veterans
Claims (Court). This review process allows an individual to challenge
not only the application of law and regulations to an individual claim,
but also to contest whether VA regulations accurately reflect the
meaning and intent of the law.
Just as the Board can remand cases back to the AMC or VARO, the
Court has the ability to remand cases back to the Board when it finds
errors in the application of the laws and regulations, affording
additional opportunity for the claim to be favorably resolved. However,
in some instances, the Court may issue a remand without resolving all
issues related to the appeal. This can have the unfortunate result of
further delaying what has already been a long and arduous process for a
veteran or survivor seeking benefits. To help ensure that claimants
that have already been waiting for years do not unnecessarily wait
longer, Congress should consider amending Section 7261 of title 38,
United States Code, so that the Court is required to render a decision
on every legal issue raised by the appellant if it satisfies three
conditions:
1. The Court has proper jurisdiction under section 7252 of title
38;
2. The issue does not require further adjudication or fact-finding
below; and
3. The issue does not depend on the outcome of the remand of
another issue before the Court.
During the 21 years since the Court was formed in accordance with
legislation enacted in 1988, it has been housed in commercial office
buildings. It is the only Article I court that does not reside in its
own courthouse. The Court should be accorded at least the same degree
of respect enjoyed by other appellate courts of the United States.
Congress allocated $7 million in FY 2008 for preliminary work on site
acquisition, site evaluation, preplanning for construction,
architectural work, and associated other studies and evaluations. No
further funding has been provided. Congress should provide all funding
as necessary to construct a courthouse and justice center in a location
of honor and dignity to the men and women who served and sacrificed so
much to this great nation.
VETERANS OF FOREIGN WARS OF THE UNITED STATES
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
On behalf of the men and women of the Veterans of Foreign Wars of
the United States (VFW) and our Auxiliaries, I would like to thank you
for the opportunity to provide testimony for today's hearing.
Current data shows 250,845 appeals are controlled in the Veterans
Appeals and Locator System (VACOLS) which tracks appeals pending in the
Department of Veterans Affairs (VA) regional offices, pension centers
and the Appeals Management Center. \1\ Appeals have been at these
levels for at least the last 18 months without significant variation.
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\1\ Monday Morning Workload Report; June 10, 2013 showing appeals
data from May 11, 2013. http://www.vba.va.gov/REPORTS/mmwr/index.asp.
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It is not just the number of pending appeals which is astounding.
In its annual report for FY 2012, released in February, 2013, the Board
of Veterans' Appeals (BVA) said that it took, on average, 1,040 days
for a veteran to receive a BVA decision after filing a substantive
appeal. \2\ That is 2.8 years. Even worse, the appeal starts for the
claimant/appellant hundreds of days earlier when he/she files a Notice
of Disagreement.
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\2\ Report of the Chairman, Fiscal Year 2012; February 2013, page
19. http://www.bva.va.gov/docs/Chairmans--Annual--Rpts/BVA2012AR.pdf.
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Two stage appeals process
The VA runs a two stage appeals process. When VA issues a decision,
a claimant generally has one year in which to decide to appeal part or
all of the decisions made by VA. The clock for VA starts when a Notice
of Disagreement (NOD) is filed. The VA is supposed to place the NOD
under control within 7 days of receipt. \3\
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\3\ While VBA requires claims be put under control within 7 days of
receipt, the reality is that some offices take much longer to identify
and control appeals. Appeals Design Team Briefing, January 2013, page
2.
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The NOD is referred to a VA employee with decision making authority
equal to or higher than the individual who made the original decision.
Most appeals deal with decisions in disability compensation claims.
NOD's in these cases are referred to either a rating specialist or a
Decision Review Officer. NOD's filed in non-rating cases are usually
assigned to senior Veteran Service Representatives.
Once received, an NOD will pend until a decision maker reviews the
original decision and, if they do not change it, issue a Statement of
the Case (SOC). An SOC essentially restates the decision with added
material outlining the laws and regulations pertinent to the decision.
For reasons discussed below, it can take scores of days for a veteran
to receive an SOC.
VBA sends a Substantive Appeal, VA Form 9, with the SOC. The
claimant has the remainder of the one year appeal period or 60 days,
whichever is longer, to return a completed Form 9. Failure to submit
the Form 9 within this period ends the appeal. Many claimants decide
not to continue their appeal at this point, either because they have a
better understanding of why the decision was made in their case, or
because they become frustrated with delays and legal sounding
boilerplate and decide to give up. However, many tens of thousands
decide to continue their appeals and submit the Form 9.
If the Form 9 is received within the required period the appeal
continues and is not closed until one of three things happens: the
claimant withdraws their appeal; VA grants the maximum benefit allowed
by law; or the BVA makes a decision. It is only this period, from
submission of the Form 9 to the issuance of a BVA decision, which is
covered by the 1,040 day average reported by the BVA.
To look at this differently, VBA reported that in FY 2011 the
Houston Regional Office averaged over 1,444 days from receipt of a NOD
to the day the appeal is certified to the BVA for their consideration.
\4\ It is apparent, then, that while the BVA may take over 250 days, on
average, to complete its work, most of this extraordinary years-long
appeals process is spent in VA regional offices, waiting.
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\4\ Appeals Design Team Briefing, January 2013, page 2.
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VA regional offices are where appeals go to wait
For much of the last two decades appeals have been the step-child
of VA claims processing. These claimants already have a decision from
VA. They may not like part or all of what VA decided, but they have a
decision. There are currently 1.75 million veterans and other claimants
who are waiting for VA to take action on their original disability
claim, a reopened claim, a claim for an increase, accrued benefits,
burial benefits, a claim to add a dependent...the list goes on. VA's
workload is not just the 851,000 disability benefit claims VA routinely
talks about. \5\ However, these claimants do not have a decision.
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\5\ Monday Morning Workload Report.
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Since at least the early 1990's, every time VBA decides it must
reduce the backlog, local managers divert most personnel assigned to
appeals to assist in the project. Since the focus is on the backlog,
Members of Congress and the media fail to notice that appeals are not
being worked. The natural consequence of this choice allows the appeals
backlog to simultaneously grow, and grow older. Until last year when
VBA created Appeal Teams, most regional office appeals operations were
understaffed. Even when Decision Review Officers were allowed to work
appeals, they had huge caseloads and insufficient support staff to
handle the work.
Inattention to appeals, pressure to move other work, and under
staffing of appeals operations created inefficiencies which spun out of
control. For instance, a high level VBA official involved in appeals
recently related that certain work management practices facilitated one
segment of the work at the expense of appeals. What he described was
this: A veteran submits an NOD on one issue while submitting a
supplemental claim on a different issue. Since the NOD and claims
material were screened by personnel trained to develop claims, they
would initiate development first and not submit the NOD to the appeals
team. As a result, months would go by before someone else noticed the
NOD and placed it under control.
One problem appeals processing has in common with claims processing
is development. Many claimants either submit additional evidence or
identify additional evidence during the appeals process. Additional
evidence is rarely sufficient by itself to allow VA to grant the
benefit sought on appeal. As a result, VA is required to order a VA
examination. If the claimant identifies additional evidence, VA is
required to assist the claimant in obtaining it. Identifying exactly
the right action to take to properly develop an appeal remains a
challenge for VA. In FY 2012, the BVA remanded for additional
development 45.8 percent of the appeals it considered. \6\ A large
portion of these appeals were remanded to correct development
deficiencies that were not addressed prior to shipping the appeal to
the BVA.
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\6\ Report of the Chairman, Fiscal Year 2012; February 2013, page
22.
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Discussion
Many organizations and individuals have their own ideas about what
is wrong with the appeals process and offer their own ideas for what
should be done to fix it. While some would argue that the unique set of
veteran friendly laws create obstacles to efficient appeals processing,
or the creation of the Veterans Court in 1988 has been an engine of
redefinition and change to the regulations and policies enacted by VA
in a pre-Court era, or point to the dearth of attorneys representing
claimants before the Board, \7\ the reality is that VBA has devoted too
few resources, created too many process inefficiencies, and failed to
timely and properly develop too many cases for the appeal process to be
anything but dysfunctional. The VFW believes that if these three things
are properly addressed VBA should be able to substantially shorten the
time it takes to move an appeal from receipt of an NOD, issuance of an
SOC, process a Form 9 and certify a case to the BVA.
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\7\ We would be remiss if we did not point out that while attorneys
obtained grants in 30.1 percent of the cases decided by the BVA in FY
2012, three veteran service organizations, including the VFW, obtained
better results. Report of the Chairman, Fiscal Year 2012; February
2013, page 23.
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VBA recently concluded a one year appeals pilot at the Houston
Regional Office where many of these issues appear to have been
addressed. While we need to study the process more closely to ensure
that veterans were not harmed during this project, we are encouraged by
what VA has done. VA reports that during this pilot they were able to
shave 1,000 days off the average time it took Houston staff to process
appeals from receipt of an NOD to certification to the BVA. While they
did not hit their target, they made remarkable strides in improving
communication to claimants and expediting appeals.
Unique system of laws
``The veterans' benefits system has been calibrated with uniquely
pro-claimant principles.'' \8\
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\8\ Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)''
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In any discussion concerning the Department of Veterans Affairs, it
is critical that all parties understand that Congress created a unique
set of pro-veteran policies when establishing programs for veterans and
their families. Principles which are common throughout the rest of the
law are intentionally absent or relaxed in laws dealing with veterans'
benefits.
While these laws may create challenges for VA, they are not
insurmountable challenges. We posit that VBA has yet to put sufficient
effort into conducting development efficiently and effectively.
Development regimens are too complex, variables too numerous, training
too ineffective and oversight is largely absent.
VA has argued that if it could be only allowed to shorten waiting
periods from 60 days to 30 days, shorten the appeal period from one
year to 6 months, that it would be able to process claims more quickly
with higher quality. We believe that two things are wrong with this
approach. First, VA seeks to penalize veterans and other claimants for
its own inefficiencies and inability to properly develop and control
claims and appeals. Second, VA managers would have you believe that the
solution to its problems rests with Congressional mandates and not with
its own inability to establish effective procedures, conduct meaningful
training, perform adequate and timely quality reviews, and ensure
consistent managerial oversight of the appeals process. The VFW
strongly urges Congress to compel VA to do its job, and do it
correctly, the first time, and not to further restrict ``unique set of
pro-veteran policies'' enacted by you to ensure that veterans receive
the benefits they have earned through their service to the American
people in both peace and war.
Mr. Chairman, this concludes my testimony.
Information Required by Rule XI2(g)(4) of the House of Representatives
Pursuant to Rule XI2(g)(4) of the House of Representatives, VFW has
not received any federal grants in Fiscal Year 2013, nor has it
received any federal grants in the two previous Fiscal Years.
VETS FIRST
Chairman Runyan, Ranking Member Titus, and other distinguished
members of the Subcommittee, thank you for the opportunity to submit
for the record our views concerning the appeals process for veterans'
disability benefits claims.
VetsFirst, a program of United Spinal Association, represents the
culmination of over 60 years of service to veterans and their families.
We provide representation for veterans, their dependents and survivors
in their pursuit of Department of Veterans Affairs (VA) benefits and
health care before VA and in the federal courts. Today, we are not only
a VA-recognized national veterans service organization (VSO), but also
a leader in advocacy for all people with disabilities.
The backlog in adjudicating a veteran's claim for disability
benefits has been well documented. Unfortunately, the backlog for
appealing a claims decision is just as, if not more, egregious.
VetsFirst believes that we must look not only at the backlog in both
the adjudication of initial claims and the appeals process but also the
impact that each process has on the overall claims backlog. For the
purposes of this testimony, we will focus on that part of the appellate
process that involves the regional offices and the Board of Veterans'
Appeals (BVA or Board).
Appealing a claim for veterans benefits is a lengthy process that
begins when a veteran receives a decision on a claim that he or she
disagrees with and files a Notice of Disagreement (NOD) with the
regional office. Upon receipt of the NOD, the regional office will
review the veteran's claim. The veteran has the right to a hearing with
a Decision Review Officer (DRO) before the regional office issues the
Statement of the Case (SOC). Following the issuance of the SOC, if the
veteran still disagrees with the decision, then he or she must perfect
his or her appeal to BVA by filling a substantive appeal, a VA Form 9.
Once filed, the regional office reviews the case again before finally
certifying it to BVA. From there, the Board will review the case and
render a decision, which may include remanding the case back to the
regional office for further action.
The backlog in processing benefits claims and appeals has continued
to grow in recent years. The VA's Office of Inspector General (OIG)
reported in a May 2012 report \1\ that the inventory of appeals had
increased more than 30 percent between fiscal year 2008 and fiscal year
2010. The OIG also reported that the inventory of compensation claims
increased by 40 percent.
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\1\ Department of Veterans Affairs Office of Inspector General,
Veterans Benefits Administration: Audit of VA Regional Office's Appeals
Management Process (May 30, 2012).
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According to the report of the chairman of the Board for fiscal
year 2012, \2\ BVA issued 44,300 decisions during that fiscal year.
Excluding the time a case is pending with a VSO for preparation of a
written argument, BVA's average appeals time (from the time received to
the time of decision) was 117 days. The total average appeals time for
BVA to render a decision, 251 days, represents a fragment of the time
an appellant must wait for a decision from BVA.
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\2\ Department of Veterans Affairs, Report of the Chairman: Fiscal
Year 2012.
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Prior to being received by BVA, a substantial period of time has
already elapsed. From the time the claimant files an NOD to the
issuance of an SOC takes an average of 270 days. The average veteran
then takes 40 days to return the VA Form 9. After receiving the appeal
request, it takes an average of 692 days for the regional office to
certify the appeal to BVA.
The OIG's report found that of the eight regional offices that were
audited only one processed NODs within the 125 day average set by VA
policy. The actual range in processing times was 120 to 448 days. VA
policy also seeks to have all appeals certified within an average of
125 days. Specifically, for each SOC and SSOC that the regional office
completes the Veterans Benefits Administration (VBA) allows the
regional office 125 days. For the eight regional offices reviewed, the
goal set by VBA for certifying appeals ranged from 153 to 195 days. The
actual averages for certifying appeals for these offices ranged from
236 to 1,219 days.
We currently represent a veteran whose appeal illustrates the
delays that many veterans face in receiving benefits due to the appeals
backlog. On June 18, 2009, the veteran appealed a May 1, 2009, rating
decision. The regional office issued an SOC on October 23, 2009. In
December 2009, the veteran submitted a VA Form 9 appealing the May 1,
2009, denial. On January 14, 2011, the veteran submitted additional
medical evidence that we believe will allow the regional office to
grant his claim through an SSOC. To date, neither the veteran nor our
organization has received an SSOC or any information regarding the
certification of his substantive appeal.
The OIG's report found that, ``VBA's management of appeals was
ineffective in providing timely resolution of veterans' appeals.'' The
OIG's conclusion resulted in part from the assertion that VBA failed to
ensure adequate staffing to address appeals. In addition, regional
offices failed to make adjudicating appeals a priority for DROs and
rating specialists.
The DRO position was deployed nationwide in 2001 in an attempt to
expedite the appeals process and limit the number of claims that are
ultimately appealed to BVA. Veterans who wish to have their claims
reviewed by a DRO are required to affirmatively select that option. A
2006 VBA study group recommended that all NODs should be reviewed by a
DRO. That suggestion was rejected because it would be too costly. The
VA's OIG has also asserted that appeals delays occurred because DROs do
not review all appeals.
VetsFirst believes, however, that there are some claims for
disability benefits that a regional office will almost never grant. An
example of such a claim might be one for stateside exposure to Agent
Orange, which has been granted by the Board. In those cases, the
veteran should be allowed to go directly to the Board without having to
endure a lengthy regional office appeals process.
According to VA's OIG, another advantage of requiring a DRO review
of all appeals would be eliminating the requirement to send the
appellant an appeal election letter. Eliminating this step would save
approximately 60 days. VBA has recently implemented the use of an
optional, standardized NOD form, VA Form 21-0958. However, this form
does not provide the appellant the opportunity to choose a DRO review.
At the very least, adding the election to any current or future NOD
form would also eliminate this need.
We are concerned, however, that DROs spend too little time actually
working on appeals. After creating the DRO position, VBA allowed DROs
to have other duties not related to appeals. These other duties include
training other staff and serving as a second signature on appeals.
Although initial claims processing is extremely important, VBA cannot
sacrifice those veterans whose claims are waiting in the appeals
process. DROs' focus should be on processing appeals.
Requiring DROs to focus on appeals will help to ensure that appeals
move more quickly. We agree with the VA's OIG that cases should be
reviewed within 60 days of receiving the NOD to ensure that any needed
additional information to review the appeal will be requested in a
timely manner. We believe that this should be a statutory requirement
to ensure that action on an appeal is not unnecessarily delayed.
We also believe that a statutory requirement to certify an appeal
upon receipt of a substantive appeal within a specified number of days
is needed to further address the overwhelming delay in the appeals
process. We suggest that this period be statutorily reduced to 120 days
in all applicable appeals. If the regional office is unable to meet the
deadline, then they should be required to inform the veteran, the
veteran's representative, and BVA of the delay and explain the nature
of the delay. VBA should also be required to report to Congress
annually regarding the number of cases in which regional offices were
unable to meet their deadlines, the types of cases, and the number of
delays by regional office, along with action steps for reducing or
eliminating the need to delay appeals.
Reducing the amount of time a veteran waits for certification of
his or her appeal will also lead to other benefits. It will reduce
remands that occur due to a veteran's medical exam being outdated and
not allowing for proper adjudication of the appeal. It will also reduce
the need for regional office personnel to issue multiple SSOCs.
Specifically, we believe that the need for multiple SSOCs will drop
dramatically, because significantly reducing the number of days to
certification will reduce the likelihood that additional information
will be obtained and submitted.
A copy of the regional office's Certification of Appeal, VA Form 8,
should also be provided to the veteran and his or her representative.
Sharing this form will allow the regional office to address any
problems or misunderstandings regarding the appeal before the veteran's
file is transferred to the Board. We believe that this process will
provide another avenue to reduce adjudication time where there is a
disagreement regarding the issues on appeal.
Although there are many ways to expedite review, the regional
offices' review process must be thorough. Deficiencies in claims
adjudication that will lead to remands must be addressed earlier in the
appellate process. Otherwise, veterans' claims for benefits will be
needlessly delayed.
According to BVA, in fiscal year 2012, the average time for an
appeal that was remanded for further action was 445 days. One of the
goals of BVA for fiscal years 2013 and 2014 is to eliminate avoidable
remands. We agree that resolving appeals properly at the earliest
possible stage is critical to eliminating the need for an appeal to BVA
and a subsequent remand to address an error that should have been
addressed earlier by the regional office.
We believe that BVA must continue to train DROs to ensure that they
are accurately reviewing claims that could be addressed at the regional
office. Claims that clearly lack a valid exam, for example, should be
addressed by the DRO. Veterans should not have to wait through a
lengthy review process to get to the Board to receive a remand for a
new exam.
BVA continues to closely track the reasons for remands. This data
is available to all VA components for management and training. We
believe that this data must be transparent and used to develop publicly
available metrics that will reduce avoidable remands.
VetsFirst believes that the appeals process at the Board could also
be modified to expedite a veteran's appeals. For example, veterans who
include a legal argument with their appeal should be given the
opportunity to advance on docket. Currently, most cases are adjudicated
in docket order. Veterans who have already provided all of the
information that they wish to provide should not be required to wait.
Such a process would encourage veterans and their representatives to
provide the legal argument earlier in the process in the same manner
that the fully developed claims process promotes ready to rate claims
in the initial claims process.
Appeals from veterans who are of advanced age, suffering severe
financial hardship, or seriously ill may under regulation already be
advanced on docket. However, that advance does not continue for appeals
that are remanded to the appeals management center or the regional
office. Although VBA has recently testified that claims filed by
veterans who are homeless, terminally ill, or Medal of Honor recipients
or were Prisoners of War are processed as expeditiously as possible,
there is no similar regulatory or statutory protection for these
claims. We believe that veterans who are advanced on docket at the
Board due to one of the criteria laid out in the Board's regulation
should continue to be advanced to the resolution of their appeal.
Because the Board is an important component of the full claims
process, we also hope that VA is truly working to ensure that BVA's
needs have been and will continue to be considered in the development
and implementation of the Veterans Benefits Management System (VBMS).
VA has stated that VBMS is important to streamlining the claims process
and reducing the backlog. Ensuring that the full claims process,
including the appeals process, is able to benefit from efficiencies
inherent in an electronic records management environment is crucial to
addressing issues that contribute to the overall backlog.
Greater accountability for ensuring that appeals do not languish at
either the regional office or the Board is needed. Veterans who file
appeals need to receive their duly owed benefits as much as
those who are filing initial claims. The appeals process deserves
more attention because it is an integral part of the process veterans
and other beneficiaries must navigate to receive compensation or other
benefits. We believe that there are important efficiencies that can be
implemented that would not only expedite the process but also ensure a
quality decision. Without a quality, timely review of a veteran's
appeal, his or her claim will only continue to cycle through the
remainder of the appeals process. For issues that could have been
addressed earlier in the appellate process, this is a particularly
troubling result for far too many veterans.
Thank you for the opportunity to submit for the record VetsFirst's
views regarding the appeals process of veterans' disability benefits
claims. We are ready to work in partnership to ensure that all veterans
are able to receive the benefits in a timely manner that allow them to
reintegrate in to their communities and remain valued, contributing
members of society.
Information Required by Clause 2(g) of Rule XI of the House of
Representatives
Written testimony submitted by Heather L. Ansley, Vice President of
Veterans Policy; VetsFirst, a program of United Spinal Association;
1660 L Street, NW, Suite 504; Washington, D.C. 20036. (202) 556-2076,
ext. 7702.
This testimony is being submitted on behalf of VetsFirst, a program
of United Spinal Association.
In fiscal year 2012, United Spinal Association served as a
subcontractor to Easter Seals for an amount not to exceed $5000 through
funding Easter Seals received from the U.S. Department of
Transportation. This is the only federal contract or grant, other than
the routine use of office space and associated resources in VA Regional
Offices for Veterans Service Officers that United Spinal Association
has received in the current or previous two fiscal years.
PARALYZED VETERANS OF AMERICA
Chairman Runyan, Ranking Member Titus, and members of the
Subcommittee, Paralyzed Veterans of America (PVA) would like to thank
you for the opportunity to offer our views on the situation faced by
thousands of veterans awaiting decisions on their appeals for veterans'
benefits. This issue has been challenging the Department of Veterans
Affairs (VA) for years and PVA appreciates you conducting this hearing
to try and find answers. However, answers without action is
meaningless.
With much of the discussion focusing on the VA disability claims
backlog and the litany of initiatives launched by the Veterans Benefits
Administration (VBA) to address it, very little attention has been
placed on the appeals process. However, the downstream effects of the
backlog, which now sits at over 613,000 claims, fall to the
jurisdiction of the Board of Veterans Appeals where nearly 43,000
appeals now await adjudication. For veterans who had endured the wait
associated with backlogged claims, many face a new waiting game that
will last 251 days on average once those claims become appeals. The
current remand rate now sits at 46 percent, which means nearly half of
appeals are returned to VBA due to error or incompleteness. This also
means those appeals will spend an average of 251 days in the process
plus the time it takes to fulfill a remand order. This can take months
or even years in some cases.
PVA has identified a number of reasons for the appeals backlog.
Chief among them is the number of appeals that have to be sent back, or
remanded, to VBA for additional development. Inadequate medical exams,
inadequate reasons and bases, and inadequate notice of examination are
a few of the most common reasons for remand. When an appeal is
remanded, it returns to the jurisdiction of VBA through the Appeals
Management Center (AMC), a separate entity where assigned VBA staff are
tasked to remedy flaws in claims development identified by the Board.
It is at the AMC where many remanded appeals idle on a procedural
``hamster wheel'' due to a failure to comply with the remand order, an
automatic basis for continued remand. In some cases, AMC will simply
reiterate the rationale of a medical opinion without applying legal
analysis or render a decision without complying with the Board's remand
directives thus unnecessarily extending the process.
However, the Board and appellants are also culpable to an extent.
Both the Board and VBA share a predilection for wrongly favoring VA
exams over most others and will require one before rendering a
decision, even when private medical evidence or treatment notes from an
appellant's treating VA physician is sufficient. This is an issue PVA
has testified about on multiple occasions. Not only does this slow the
claim or appeal of the individual veteran, it further slows the claims
process when unnecessary resources are used to seek medical information
VA already has. In addition, it increases VA costs and diverts them
from serving other veterans who need exams.
Veterans also share responsibility when many appeals arrive at the
Board with little to no merit. A disability claim that gets denied by
VBA should not automatically become an appeal simply based on the
claimant's disagreement with the decision. When a claimant either files
an appeal on his own behalf or compels an accredited representative to
do so with no legal basis for appealing, this clogs the process and
draws resources away from legitimate appeals. PVA has taken steps to
reduce these frivolous appeals by having claimants sign waivers when
taking power of attorney. In addition, PVA has an attorney serve as
Director of the PVA National Appeals Office which allows our
organization to better evaluate the merits of an unfavorable VA
decision before proceeding with an appeal.
There may be many avenues to improve the appeals process for
claims. PVA offers the following recommendations for improvement:
In order to reduce remands, the Board should order VA
medical exams only when necessary and give appropriate weight to
private medical evidence and treatments records from treating VA
physicians.
Granting the Board settlement authority, similar to that
allowed by the Veterans' Court, will eliminate the need for time
consuming additional development in cases where the appellant, an
accredited representative, and the Board can agree to a resolution
based on existing evidence of record.
Review examination scheduling procedures to reduce the
number of remands related to inadequate notice.
Review AMC procedures and quality review as part of the
VBA's 21st transformation effort, to include the implementation of new
technologies where applicable.
Without improvements in the appeals process, PVA does not believe
VA will be able to meet the Secretary's deadline of 2015 to end the
claims backlog that has damaged both VA's credibility and damaged, and
continues to damage, the lives of many disabled veterans.
Mr. Chairman, we would like to thank you once again for allowing us
to address this issue. We hope that by continuing to seek the answers
on claims delays, VA will make meaningful reforms to ensure these
claims are completed in a timely manner.
PVA would be pleased to take any questions for the record.
Information Required by Rule XI 2(g)(4) of the House of Representatives
Pursuant to Rule XI 2(g)(4) of the House of Representatives, the
following information is provided regarding federal grants and
contracts.
Fiscal Year 2013
No federal grants or contracts received.
Fiscal Year 2012
No federal grants or contracts received.
Fiscal Year 2011
Court of Appeals for Veterans Claims, administered by the Legal
Services Corporation--National Veterans Legal Services Program--
$262,787.
GREG E. MATHIESON, SR.
1. The following are a number of items I have experienced both in
dealing with my disability claim before the Veterans Administration and
that of my working on my fathers claim before the Veterans
Administration.
2. My father Everett Albert Mathieson, now in his `80s is a Korean
War Veteran, having served with the 1st Marine Division in the Chosin
Reservoir in 1950 for a number of months. During that time temperatures
reached to as low as minus 35 degrees F. As a result many US service
members died or experienced frostbite.
3. My father filed claims with the Veterans Administration early
on, given that back in the 50's and 60's many were simply hand written
notes with paper and pencil and mailed to the VA. There were not copy
machines, typewriters with carbons and others means of making
duplicates in those days for the simple soldier now a civilian.
4. For over 5 decades my father wrote and pleaded with the VA for
assistance, yet during those years, the VA did not recognize Frostbite
as a war injury and did little or nothing to help the veteran.
The VA now recognizes the injury of Frostbite as described in their
Military Health History Pocket Card for Clinicians. http://www.va.gov/
oaa/pocketcard/korea.asp which in brief states: The Korean War was
fought from 1950 until 1953 and pitted the United States, South Korea
and their UN allies against North Korea and the Chinese Communists.
Cold injuries including frostbite and immersion (trench) foot
constituted a major medical problem for U.S. service personnel during
the Korean War. Veterans of the Battle of the Chosin Reservoir are
recognized as having suffered especially high rates of severe cold
injuries. Cold accounted for 16% of Army nonbattle injuries requiring
admission and over 5000 U.S. casualties of cold injury required
evacuation from Korea during the winter of 1950-1951.
In many instances U.S. Service members did not seek or were unable
to obtain medical care after cold injuries because of battlefield
conditions. Documentation of such injuries may never have been made in
their service medical records or may no longer be available.
It is important for VA staff examining and caring for veterans who
have experienced cold injuries to be familiar with the recognized long-
term and delayed sequelae. These include peripheral neuropathy, skin
cancer in frostbite scars (including in such locations as the heels and
earlobes), arthritis in involved areas, chronic tinea pedis, fallen
arches and stiff toes, nocturnal pain, and cold sensitization. These
cold-related problems may worsen as veterans grow older and develop
complicating conditions such as diabetes and peripheral vascular
disease, which place them at higher risk for late amputations.
5. My father was treated for a period of time at the VA Hospital at
Northport, NY, though the VA repeatedly informed him of not having any
records. My father has maintained the VA Northport Hospital
prescription bottles to this day along with related paperwork, yet the
VA does not have copies.
6. A number of years ago, I became involved in my fathers VA
disability claim seeing that he had been getting nowhere on his own and
also with the service organization of the Purple Heart. I put in FOIA
requests for both his records and mine for service records, medical
records and more. After long periods of time we managed to start
getting in bits of pieces of records from all the various service
centers. To my surprise in one instant, I was sent a European Service
Medal for participating in World War II, though I was born in 1954.
Many records were lost over years, more recently in the past 4-5 years,
by the Veterans Administrations own admission do to a computer change
over of systems.
7. In May of 2012, at the ceremony with President Obama at the
Vietnam Veterans Memorial I had the opportunity to speak with Veterans
Administration Secretary Eric Shinseki about my father's case. A few
days later someone from VA Headquarters contacted me and put me direct
contact with someone at the New York City VA Regional Office who was
working on my fathers claim.
8. After years of fighting the VA it had seemed that we might be on
the right course of getting my fathers claim settled and medical
treatment via the VA vs. my father having to pay for it all these past
years. Finally a doctor familiar with Frostbite injures met with him
and certified the injures and he was provided disability benefits
starting at that time for his injuries. In the past VA doctors,
unfamiliar with frostbite would dismiss his injures as being
dermalogical and treated with skin creams.
9. Shortly there after my father was hospitalized for complications
related to his frostbite after all these years, blood clots and other
items continued. The VA office then continued to ask for more
paperwork, more forms files out, making the process that was finally
underway, even harder for my father. Keep in mine, many veterans in
their 80's do not use or now how to use the Internet or type on a
computer. My father, a man who did not have any formal education other
then high school in the `40s could not understand the forms and needs
of the VA's constant mailed questions.
10. The VA at times seems to constantly sends forms to the Veterans
to fill out, with every letter of correspondence, even attaching it to
the simple, we're working on your claim letter. This confuses the
veterans of that generation in thinking they need to do something when
in fact they do not.
11. We filed for an earlier effective date of my fathers claim for
when he first filed it some five decades ago and asked that it be
forwarded to the Board of Veterans Affairs in Washington DC for him to
have a face to face hearing in Washington.
12. We were told it could not be forwarded to the BVA until all his
treatments; medical claims and others were closed out in New York. He
still had a claim pending for his hospital stay of over 30 days and the
VA was awaiting more paperwork, though we provided his discharge papers
showing his 30 days of stay in the hospital. At one point we told the
VA it was not worth the months of waiting for a $1,000 claim for
hospitalization which was holding up is much bigger claim of an earlier
effective date for is disability, which if approved would amount to
hundreds of thousands of dollars in back payments.
13. We retained an attorney for the BVA hearing in Washington and
waited for my fathers claim file to be forwarded to Washington to start
the process, but it never showed up. I finally found that the file had
been returned to the file storage as being closed out. We eventually
got it to the BVA where it is today.
14. In dealing with BVA in my own hearing some 5 months ago, we
were told that the BVA is currently reviewing hearing testimony from
heard in 2010 and that I have some 46,000 cases before mine to review,
all in order of coming in. The BVA Ombudsman confirmed this to me a few
weeks ago.
15. After getting a copy of my hearing transcript from the BVA I
read through to confirm that the hearing Judge, stated that I should be
getting a final determination within 2-3 months, that he doesn't
control what comes on his desk, but that's about the average time. When
I read this statement to the BVA office rep, I was told that the judges
routinely don't tell the veteran the truth, knowing that it can take
years and want do so to make the veteran feel good and give them hope
that someone is doing something.
16. I then also stated that in my hearing transcript, the judge
makes mention of retiring in the next few months as well. When asked
how this could effect my hearing I was told that I would have to return
and have another hearing before another judge and start the process all
over again, though my place in the docket for review would be the same.
17. In the transcript of my BVA hearing the judge states that he
does not need to ``develop'' my case that basically it's black and
white and he has made a determination. In cases like this, the Judge
should be allowed to make this ruling if in fact it is a simple matter
that can be finalized to the benefit of the veteran and not keep him/
her waiting another few years for the outcome.
18. I'm currently getting ready to have surgery and having both my
knees replaced and I'm told that even though I again have to submit
paper work for rehabilitation treatment and other related items, it can
again, take up to a year or more of processing though my local VA
office.
19. Another issue I learned is when asked about taking my son off
of my current disability benefits when he graduates from college, I was
told that it could again, take up to one year or more for the VA to
suspend that payment, in fact I would keep getting paid for something I
am not entitled to and then have to pay be back when the paperwork
cached up within the VA some 12-14 months later.
20. I speaking to a veterans service organization representative, I
was told that her husband had died over 5 years ago, yet though she
told the VA that she was not allowed spousal support any longer, they
kept providing it and then took it back years later. This seems to be
the norm and down the road affects the veteran when his/her benefits
are reduced to payback the money they were not entitled to, yet make
the effort to inform the VA of the changes needed.
21. In the past few months, I have tried to reach out the
Headquarters of the Veterans Administration on a number of issues, some
personal and some as a member of the news media that covers Capitol
Hill. I'm surprised to find in many cases, that he Veterans
Administration does not list its numbers to the general public much
like every other government agency. If you want to call the White
House, they have a number listed. If you ask for a particular office at
the Pentagon, you'll be put through to that office, however there is
not even a standard switchboard number for the Veterans Administration
if someone should which to reach the Inspector Generals Office, the
Chief of Staff an more.
22. Recently I went to the Veterans Administrations Headquarters
and asked to speak to the Public Affairs office and was told without a
name of a person, they could not call that office. The same applied to
all the offices within the Headquarters. Even the Central Intelligence
Agency has a main number to call to reach someone or an officer related
to something.
It's clear that the Veterans Administration has serious problems.
They will not get fixed over night or in months unless there is a
change in management and/or leadership with a plan on making changes.
There are however some simple things that can be fixed now:
1. Being able to stop payment benefits when a spouse calls and says
their loved one has died.
2. Judges at BVA should be honest with Veterans about time frames
on reviewing cases and not provide false information to make the
Veterans ``feel good''.
3. Having a main number to call VA if you which to reach the
Headquarters for other then dealing with a claim issue.
4. Not continuously sending forms to the veterans with every piece
of correspondence when they are not truly needed.
5. Judges at BVA hearings should be allowed to make a final
determination at the hearing, much like other courts, if the case is
such that a simple determination can be made in favor of the veteran,
thereby cutting down the docket of cases considerable and not keep
veterans waiting for years when the remedy sought was simple and clear
in nature and the judge agrees to it.
6. Doctors providing paperwork on a Veterans benefits claim do not
speak the same language as the VA's claims adjudicators. In my case an
orthopedic surgeon would quote page number and paragraph listed in the
American Medical Association yet the VA uses it's own codes, which
specifically need to be mentioned in the doctors reports to move the
claim forward.
I'm writing this testimony not in the interest of being self-
serving, but to bring to the Committee members attention some of the
frustrations and time elements tens of thousand of Veterans are
experiencing daily and also hoping of bringing some common sense
solutions to some of the problems currently going on.
Sincerely,
//// Signed //////
Greg E. Mathieson Sr.
BERGMANN AND MOORE, LLC
Introduction
We thank Subcommittee Chairman Jon Runyan and Ranking Member Dina
Titus for inviting Bergmann & Moore, LLC to submit a statement for the
record regarding the continuing failure of the Department of Veterans
Affairs (VA) to timely adjudicate Veterans' disability compensation
claims remanded from the U.S. Court of Appeals for Veterans Claims
(Court) or the Board of Veterans' Appeals (Board) back to the Veterans
Benefits Administration (VBA).
Founded in 2004, Bergmann & Moore is a national law firm based in
Bethesda, Maryland. We represent Veterans throughout the United States
whose disability claims were denied by VBA, the Board, and the Court.
Since 2004, the firm has successfully represented more than 1,500
Veterans and surviving beneficiaries at the Court. The firm's partners
and several associates were previously employed with VA. Based on our
VA background and practice concentration, we have a strong interest in
ensuring VBA processes disability claims in a timely and accurate
manner for our Veterans and their surviving family members.
Our statement focuses on appealed disability compensation claims
handled by VBA. We acknowledge the Court does not have a backlog and
appeals at the Court proceed through the system with improving speed.
``Why Are Veterans Waiting Years on Appeal?''
There are several reasons why Veterans are waiting years for VBA to
finish adjudicating claims.
The primary reason for the unreasonable delay in processing appeals
is because VBA does not make the final adjudication of appealed claims
a priority. As recently as April 2013, when VBA announced a new policy
of identifying and processing claims pending two years or more, VBA
ignored appealed claims in the instructions to regional offices to
identify and process significantly aged claims (VBA Fast Letter 20-13-
05, ``Guidance Regarding Special Initiative to Process Rating Claims
Pending Over Two Years,'' April 19, 2013). This new evidence shows VBA
does not make these claims a priority.
A second reason is that VBA does not have enough staff to complete
existing and appealed claims in a timely and accurate manner. The
evidence of a chronic staffing shortage was revealed last month when VA
issued a press release and announced mandatory overtime for all VBA
claims processing staff for the remainder of Fiscal Year 2012 (``VA
Mandates Overtime to Increase Production of Compensation Claims
Decisions,'' VA Office of Public and Intergovernmental Affairs, May 15,
2013). VBA's poor planning continues hampering VBA's ability process
existing and appealed claims in a timely and accurate manner.
A third reason, as several Congressional hearings painfully
revealed over many years, is the fact VBA emphasizes speed and
production over quality and accuracy. A recent example of VBA's
inappropriate and myopic focus on speed was repeated in April 2013,
when VBA's Fast Letter 20-13-05 announced the agency would identify and
process within two months all disability claims pending two years or
longer. The artificial deadline to complete Veterans' disability
creates an atmosphere within VBA where quality falls by the wayside.
When VBA over-emphasizes speed, VBA makes additional errors that lead
to more appeals further clogging the already overwhelmed VBA.
Bergmann & Moore reviewed recent rating decisions under VBA's new
Fast Letter. We identified chronic and systemic errors confirming our
noted concern last month that in VBA's haste to exalt speed over
quality, VBA would make additional mistakes. We are concerned VBA
issued thousands or more incorrect and incomplete rating decisions in
an attempt to clear the decks of cases pending two years or longer.
VBA's frequent and harmful mistakes that deprive Veterans of deserved
disability benefits include:
1. A failure to properly develop evidence,
2. A failure to consider evidence favorable to the Veteran,
3. Improper denials for service connection when warranted by the
evidence,
4. Incorrect low ratings,
5. Incorrect effective dates,
6. Incorrect reasons and bases for a decision, and
7. A VA medical exam that is incomplete, obsolete, or not ordered.
A fourth reason why Veterans wait is VBA's lack of nationwide
training. We believe a more experienced VBA employee needs to be
assigned the task of addressing VBA's errors identified by the Board or
Court. VBA training results confirm the urgent need for additional
nationwide training in order to avoid mistakes. This month, VBA
publicly reported that new employees processed 0.6 claims per day with
an accuracy rate of 60 percent after the first six months. After VBA's
new ``Challenge'' training began, productivity rose to 1.5 claims per
day with an accuracy rate of 94 percent (Under Secretary for Benefits
Allison Hickey, presentation to the National Association of County
Veteran Service Officers, Reno, Nevada, June 6, 2013). While these
accuracy statistics seems unreasonably high in both instances, assuming
the same methodology was used to determine both numbers it at least can
be said that the training had a positive impact, even if not to the
degree claimed by VBA.
However, VA reported 2,100 VBA employees, or 17 percent of VBA's
12,277 staff on hand during Fiscal Year 2012, completed the new
``Challenge'' training (Witness Testimony of The Honorable Eric K.
Shinseki, Secretary, U.S. Department of Veterans Affairs, ``U.S.
Department of Veterans Affairs Budget Request for Fiscal Year 2014,''
House Veterans' Affairs Committee, April 11, 2013; U.S. Department of
Veterans Affairs, ``Volume III, Benefits and Burial Programs and
Departmental Administration, Congressional Submission, FY 2014,'' April
10, 2013).
Bergmann & Moore urges VBA to implement mandatory and universal
training throughout VBA. We understand and appreciate the fact that
when VBA sends already thin ranks of employees off to training,
productivity temporarily falls before quality improves. This is why
long-term planning for both staffing and training are needed so VBA can
both accurately and timely process Veterans' disability claims.
Continued Congressional Oversight Remains Essential
This important Congressional oversight hearing about VBA's broken
claim appeal system occurs less than one month after Bergmann & Moore
submitted a statement for the House Veterans' Affairs Committee's
hearing on VBA's questionable plans to adjudicate claims pending two
years or longer at VBA (``Expediting Claims or Exploiting Statistics?:
An Examination of VA's Special Initiative to Process Rating Claims
Pending Over Two Years,'' May 22, 2013).
In our prior statement, Bergmann & Moore reviewed VBA's
questionable plans to process claims pending two years or longer. We
documented for the record how VBA ignored claims remanded from the
Board and the Court in the face of strong and clear laws enacted by
Congress that appealed claims must be provided ``expedited'' treatment
(38 USC Sec. 7112: Expedited treatment of remanded claims. ``The
Secretary shall take such actions as may be necessary to provide for
the expeditious treatment by the Board of any claim that is remanded to
the Secretary by the Court of Appeals for Veterans Claims''). We
described VBA's Fast Letter 20-13-05 wherein VBA failed to mention how
the agency would identify and then provide expedited handling for
appealed claims.
On behalf of our clients, Bergman & Moore reports to Congress again
how we remain deeply dismayed at VBA's continuing failure to provide
expedited processing of appealed claims, nearly all of which remain
pending more than two years. In fact, we find it absolutely
unacceptable that some appealed claims remain pending at VBA for a
decade or longer.
VBA's refusal to acknowledge and follow this important law
protecting Veterans' rights causes real and significant harm to
Veterans because they often go without the VA healthcare and economic
support provided to Veterans with service-connected disabilities -
assistance they urgently need to improve their health as well as feed
and house themselves and their families.
The consequences for VBA's delays processing appeals are
significant: as many as 53 Veterans die each day waiting on a VBA claim
decision. Due to a lack of VBA transparency, no one knows how many
Veterans died, or how long they waited, for VBA to process an appealed
claim.
VBA's chronic inability to process appealed claims pending at VBA
in a timely manner is worthy of prompt and forceful Congressional
action so that far fewer Veterans die waiting on VBA for the disability
benefits they earned for medical conditions associated with their
military service.
Solutions
Congress should consider several practical solutions to address
VBA's claim appeal quagmire. We thank Congress for taking the first and
most important step toward resolving VBA's claim delay and error
crisis: holding this hearing today and demanding accountability from
VBA leaders. We ask Congress to hold a series of hearings on this
important issue until such time as VBA reaches the goal of providing
expedited processing of Veterans' disability claims on appeal, as
required by law.
We respectfully ask Congress to consider the following additional
six steps:
1. Order VBA to improve and increase transparency so Congress knows
the extent of the crisis.
Last month, Bergmann & Moore asked Congress to determine the number
and length of time appealed claims languish at VBA after a remand from
the Board or Court. In order to determine the scope and depth of VBA's
appeal delay crisis, VBA must provide this salient data on a monthly
basis to Congress and the public.
The only public information available appears on VBA's ``Monday
Morning Workload Report'' (MMWR). As of June 17, 2013, VBA reported
251,244 appealed claims pending. In order to monitor compliance with
the law and performance, VBA should be required to obtain and share the
nationwide number of pending appealed claims, sorted at the regional
office level, including:
A. The source of those claims (i.e., on remand from the Board or
Court),
B. The length of time pending on remand,
C. The accuracy of appealed claims completed by VBA after the
remand,
D. The number of remands per claim, and
E. The number and types of errors identified by the Board and Court
2. Order VBA to develop and implement a plan to promptly process
appealed claims.
We are not aware of any VBA plan to identify and expeditiously
adjudicate appealed claims now pending at VBA regional offices, as
already required by law. This means VBA continues to ignore the law,
even in the face of repeated Congressional action and oversight
hearings.
Therefore, Congress should ask VBA if it has the ability and intent
to follow Section 7112. Specifically, Congress should ask VBA for a
specific date the agency will have sufficient staff and training as
well as a detailed plan with benchmarks to ensure our Veterans receive
an expedited review of an appealed claim.
3. Order VBA to increase the number and improve the performance of
Attorney Fee Coordinators at regional offices.
In November 2012, Bergmann & Moore wrote VBA regarding the need to
improve access to VBA points of contact for VA-accredited attorneys and
private practitioners representing Veterans. Updates on the status of a
claim are obtained from the Attorney Fee Coordinators (AFC) at each VBA
regional office. Bergmann & Moore advised VBA how the Detroit regional
office would not provide the status of a Veterans' claim or provide
other pertinent information vital to the claim. VBA's actions deprive
Veterans of quality representation and due process.
In January 2013, VBA responded to our letter without addressing our
complaint about the Detroit regional office. The same month, Bergmann &
Moore again wrote VBA and asked for a point of contact at VBA's Central
Office in Washington, DC to resolve refusals of AFCs to provide
information. Five months later, VBA still has not responded. Our goal
is for VBA to increase the number of AFCs so there is at least one on
duty at each regional office who can respond in a timely and accurate
manner about the status of our clients' claims. We also hope VBA
identifies a point of contact in Central Office who can resolve cases
where an AFC refuses to provide pertinent information. In a related
matter, VBA still has not provided on-line, real-time, computerized
access to Veterans' claim records for VA-accredited attorneys and
agents representing Veterans. While we support the goal of
computerizing VBA claim processing, we strenuously object to the
unreasonable manner in which VBA has locked out attorneys and agents.
4. Order VBA to improve and expand its Disability Benefit
Questionnaires.
VBA continues increasing the number and the use of Disability
Benefit Questionnaires (DBQ), a standardized form where VA medical
professionals document the existence and severity of medical conditions
during a Compensation and Pension (C&P) exam. DBQs are specific for
each specific medical condition. According to VBA, ``Of the 987,353
examination requests, 255,747, or 25.9 percent, contained [an
additional] DBQ medical opinion worksheet.''
We have concerns about DBQs because the form is also used by
private medical professionals and it does not include space for the
provision of nexus opinions. Nexus opinions are absolutely critical to
a successful claim, as a claim without a nexus cannot be successful
(for example, Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009);
Horn v. Shinseki, 25 Vet. App. 231, 236 (2012)).
Based on VBA's own statistics, hundreds of thousands of Veterans'
disability claims could avoid prolonged appeals and delays each year if
VBA simply incorporated a nexus opinion request question on each DBQ
form rather than asking examiners to complete an additional medical
opinion worksheet.
Thus, DBQs should be amended to include a place on the form for a
private practitioner to offer a nexus opinion. Such an opinion would
provide significant probative value, especially for initial disability
claims where the Veteran seeks service connection. The current lack of
a nexus opinion on DBQs often leads to appeals that languish for years.
5. Order VBA to suspend the Standardized Notice of Disagreement.
Bergmann & Moore is concerned about VBA's new Standardized Notice
of Disagreement (SNOD) because the new form is highly technical and
therefore adversarial to Veterans without advanced legal training. The
form forces each Veteran who wishes to disagree with a regional office
rating decision to identify and report VBA's error, such as the claim's
effective date or a conditions percentage rating.
We are troubled about VBA's use of SNODs because an unrepresented
Veteran, especially a vulnerable Veteran with brain damage (such as
traumatic brain injury) or a mental health condition (such as
posttraumatic stress disorder), may be at a distinct disadvantage. Such
a Veteran may not understand what is asked or required using VBA's
SNOD. As a result, a Veteran may not identify all of VBA's errors, and
thus lose appeal rights for VBA's errors, further complicating and
lengthening the appeal process. This is especially important for
appeals involving individual unemployability that often require
detailed knowledge of and experience using VA laws and regulations.
Under the law, all a Veteran is required to do is provide a written
notice of disagreement in a timely manner in order to begin the appeal
process. There is no legal requirement for a Veteran to cite VBA's
specific error (38 USC Sec. 7105(a)). Forcing a Veteran to do so on a
new and technical form establishes a new process. VA has not provided
for notice and comment on such a substantial rule change impacting
Veterans' due process rights. Therefore, the implementation of SNOD
should be suspended.
Conclusion
Bergmann & Moore thanks Congress for holding this critical hearing
on VBA's chronic inability to process more than 250,000 Veterans'
appealed disability claims in a timely manner. We believe there is no
``silver bullet'' solution to VBA's chronic problems. Similarly, there
is no single fix for VBA's willful failure to adjudicate claims on
appeal from the Board and Court in an expedited manner.
We believe a set of practical solutions and vigorous oversight, as
described above, should provide the information and tools VBA and
Congress need to accurately identify and properly resolve this
longstanding issue and thereby improve VBA's appeal claim processing
speed and accuracy for our Veterans and their families.
Time is of the essence. Our bottom line is that no Veteran should
die waiting on a VBA claim decision, especially Veterans who received a
remand from the Board or the Court and are entitled to an expedited
final adjudication of their claim, as required by law.