[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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
      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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
      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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \32\ Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., 
concurring in the judgment).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \33\ Allen, Legislative Commission, supra note 1, at 372-77.
---------------------------------------------------------------------------
                                 *****
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
      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\
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    \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\''
---------------------------------------------------------------------------
    \1\ Resolution No. 24, OCT. 2008
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ Monday Morning Workload Report; June 10, 2013 showing appeals 
data from May 11, 2013. http://www.vba.va.gov/REPORTS/mmwr/index.asp.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ Report of the Chairman, Fiscal Year 2012; February 2013, page 
19. http://www.bva.va.gov/docs/Chairmans--Annual--Rpts/BVA2012AR.pdf.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ Appeals Design Team Briefing, January 2013, page 2.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \5\ Monday Morning Workload Report.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \6\ Report of the Chairman, Fiscal Year 2012; February 2013, page 
22.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)''
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ Department of Veterans Affairs Office of Inspector General, 
Veterans Benefits Administration: Audit of VA Regional Office's Appeals 
Management Process (May 30, 2012).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ Department of Veterans Affairs, Report of the Chairman: Fiscal 
Year 2012.
---------------------------------------------------------------------------
    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.

                                 
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