[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


  VETERANS' DILEMMA: NAVIGATING THE APPEALS SYSTEM FOR VETERANS CLAIMS

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

                                HEARING

                              BEFORE THE

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                                 OF THE

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

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                       THURSDAY, JANUARY 22, 2015

                               __________

                           Serial No. 114-02

                               __________

       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               CORRINE BROWN, Florida, Ranking 
GUS M. BILIRAKIS, Florida, Vice-         Minority Member
    Chairman                         MARK TAKANO, California
DAVID P. ROE, Tennessee              JULIA BROWNLEY, California
DAN BENISHEK, Michigan               DINA TITUS, Nevada
TIM HUELSKAMP, Kansas                RAUL RUIZ, California
MIKE COFFMAN, Colorado               ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio               BETO O'ROURKE, Texas
JACKIE WALORSKI, Indiana             KATHLEEN RICE, New York
RALPH ABRAHAM, Louisiana             TIMOTHY J. WALZ, Minnesota
LEE ZELDIN, New York                 JERRY McNERNEY, California
RYAN COSTELLO, Pennsylvania
AMATA COLEMAN RADEWAGEN, American 
    Samoa
MIKE BOST, Illinois
                       Jon Towers, Staff Director
                Don Phillips, Democratic Staff Director

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                   RALPH ABRAHAM, Louisiana, Chairman

DOUG LAMBORN, Colorado               DINA TITUS, Nevada, Ranking Member
LEE ZELDIN, New York                 JULIA BROWNLEY, California
RYAN COSTELLO, Pennsylvania          RAUL RUIZ, California
MIKE BOST, Illinois

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

                              ----------                              

                       Thursday, January 22, 2015

                                                                   Page

Veterans' Dilemma: Navigating the Appeals System for Veterans 
  Claims.........................................................     1

                           OPENING STATEMENTS

Ralph Abraham, Chairman..........................................     1
Dina Titus, Ranking Member.......................................     3
    Prepared Statement...........................................    41

                               WITNESSES

Beth McCoy, Esquire, Deputy Under Secretary for Field Operations, 
  VBA, U.S. Department of Veterans Affairs.......................     5

    Accompanied by:

        Mr. Ronald Burke, Jr., Director, Appeals Management 
            Center, VBA, U.S. Department of Veterans Affairs

Laura H. Eskenazi, Esquire, Executive-in-Charge and Vice 
  Chairman, Board of Veterans' Appeals, U.S. Department of 
  Veterans Affairs...............................................     6
    Prepared Statement...........................................    44
Mr. Gerald T. Manar, Deputy Director, National Veterans Service, 
  Veterans of Foreign Wars.......................................    23
    Prepared Statement...........................................    54
Mr. Zachary Hearn, Deputy Director for Claims, Veterans Affairs 
  and Rehabilitation Division, The American Legion...............    24
    Prepared Statement...........................................    65
Diana Boyd Rauber, Esquire, Associate General Counsel for 
  Appeals, PVA...................................................    26
    Prepared Statement...........................................    71
Mr. Paul R. Varela, Assistant National Legislative Director, DAV.    28
    Prepared Statement...........................................    80
James R. Vale, Esquire, Director, VBP, VVA.......................    30
    Prepared Statement...........................................    89
Barton F. Stichman, Esquire, Joint Executive Director, National 
  Veterans Legal Services Program................................    36
    Prepared Statement...........................................   103
Kenneth M. Carpenter, Esquire, Founding Member, National 
  Organization of Veterans' Advocates............................    37
    Prepared Statement...........................................   112

                             FOR THE RECORD

Department of Veterans Affairs (VA) Appeals Data Requested by 
  House Committee on Veterans's Affairs Subcommittee on 
  Disability Assistance and Memorial Affairs.....................   123
Board Docket No. 88-03-442.......................................   128

 
  VETERANS' DILEMMA: NAVIGATING THE APPEALS SYSTEM FOR VETERANS CLAIMS

                              ----------                              


                       Thursday, January 22, 2015

             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 11:11 a.m., in 
Room 340, Cannon House Office Building, Hon. Jon Runyan 
[chairman of the subcommittee] presiding.
    Present:  Representatives Abraham, Lamborn, Zeldin, 
Costello, Bost, Titus, Brownley, and Ruiz.
    Also Present: Representative O'Rourke.

          OPENING STATEMENT OF CHAIRMAN RALPH ABRAHAM

    Mr. Abraham. Good morning, everyone. Thanks for being here 
and thanks for your patience.
    This oversight hearing of the Subcommittee on Disability 
Assistance and Memorial Affairs will now come to order. I first 
want to take a moment to welcome the subcommittee members, 
those who are new to Congress, new to the committee, and also 
those who are returning to this committee.
    It is a true honor to sit as your chairman of this 
subcommittee and I am also pleased to welcome my colleague, 
sitting ranking member, Ms. Dina Titus.
    By way of short introduction, I am a licensed physician, A 
military veteran, pilot, farmer, former veterinarian, a 
husband, and proud father, and proud grandfather now. So I am 
so pleased to be here and be a representative of the Louisiana 
Fifth district.
    I know that the Veterans' Affairs Committee has been 
vigilant in its oversight of the Department of Veterans Affairs 
and has been recognized for its ability to proceed in a largely 
bipartisan and reasonable manner to benefit our military 
veterans and certainly their families.
    In recent years, terribly grey matters have been 
productively addressed, and I look forward to continuing that 
tradition with Ms. Titus and members of the subcommittee on 
issues that are critically important to our Nation and 
certainly to our veterans.
    To that end, we are here today at the first DAMA 
subcommittee oversight hearing committee of the 114th Congress 
to examine the appeals process for veterans' disability claims 
within the Department. We will focus upon appeals, remands, the 
rate of remands and the lengthy delays that plague the system.
    I am aware that the Department chose to prioritize certain 
initial claims in recent years, but I must say that when 
veterans in my District shared that they wait 6, 8 and even 10 
years and more to resolve a meritorious appeal of service-
connected disability claim, I find that more than just 
alarming, and certainly unacceptable.
    I imagine that both members of the dais and witnesses at 
the table will agree with that assessment. These claims for 
service connected disability benefits need to be adjudicated 
and explained correctly the first time. And when the appellate 
review is needed, that process must be thorough, swift and very 
fair.
    This issue cannot be minimized or ignored as the VBA has 
consistently reportedly increased figures on the number of 
appealed claims, which currently sits near 290,000. The Board 
of Veterans' Appeals reports an inventory of approximately 
60,000 appeals and project explosive increases in coming years.
    That means that over 350,000 appeals are currently 
stockpiled. Some have bounced back and forth in the process for 
again, well over a decade. And each stage of the appellate 
system constitute delays, and multiple years, it is not weeks 
or months, it is years.
    So despite the existing statutory requirements, we now know 
that it the appeal claims are often placed on the back of the 
burner in favor of VA deciding initial claims as the VA reports 
that the notices of disagreement period can offer sometimes 
over 400 days.
    The average length of time in the next step of the appeals 
process between the filing of the substantial appeal and the 
issuance of a board decision is 960 days.
    By the VA's reported figures, nearly half of the BVA 
decisions result in remand, which often extend the veterans 
delay by additional years. Unfortunately, the delay alone is 
not the sole problem facing the veterans in the appellate 
system.
    I understand just 2 months ago, the Court of Appeals for 
veterans' claims held the Secretary of Veterans Affairs in 
civil contempt, citing the Department's gross negligence in 
ignoring any veterans who repeatedly raised concern on an 
appeal that had been remanded to the Department. The court 
noted that the veterans were frustrated because the VA 
seemingly acts with little urgency on remanded claims.
    As to this particular case, the court noted that the VA's 
inactions, ``Conjured a vision of a drowning man, watched by a 
lifeguard, in a nearby boat, equipped with life preservers and 
rescue ropes, who decides to do nothing, even though the 
drowning man is blowing a whistle and firing flares to call 
attention to his plight.'' That is pretty strong language, but 
ladies and gentlemen, we have real problems within the system.
    I anticipate that our panelists this morning will provide 
helpful information on their respective roles as well as 
challenges to the existing process. From the Veterans 
Administration, including also the Appeals Management Center, 
and Board of Veterans' Appeals, veterans service organizations 
and attorney advocates, I thank you all for coming today and I 
would like to briefly welcome our witnesses.
    On the first panel we have Ms. Beth McCoy, Deputy Under 
Secretary of Field Operations. Thank you for being here on 
behalf of the Veterans Benefits Administration who is 
accompanied by Mr. Ronald Burke, Director of the Appeals 
Management Center and the National Capital Region's Benefits 
Office. Also on the panel is Ms. Laura Eskenazi, the executive 
in charge and vice chairman of the Board of Veterans' Appeals.
    And after we conclude with panel one, we will see seat a 
second panel consisting of Mr. Gerald Manar, Deputy Director of 
National Veterans Service, Veterans of Foreign Affairs; Mr. 
Zachary Hearn, Deputy Director for Claims, Veterans Affairs and 
Rehabilitation Division within The American Legion; Ms. Diane 
Boyd Rauber, Associate General Counsel for Appeals with 
Paralyzed Veterans of America. Mr. Paul Varela, Assistant 
National Legislative Director of Disabled American Veterans; 
and Mr. James Vale, Director of the Veterans Benefit Program of 
Vietnam Veterans of America.
    Then panel 3 will include Mr. Barton Stitchman, Joint 
Executive Director of the National Veterans Legal Services 
Program; Mr. Kenneth Carpenter, founding member of the National 
Organization of Veterans Advocates.
    With those introductions compleat, I also thank the member 
who is not on this committee but who has expressed an interest 
in today's hearing's topic, I would like to ask unanimous 
consent that Representative O'Rourke be allowed to participate 
in today's hearing.
    Hearing no objection, so ordered.
    Thank you all for being with us again today, and I now 
yield to our ranking member for her opening statement.

    [The prepared statement of Chairman Ralph Abraham appears 
in the Appendix]

         OPENING STATEMENT OF RANKING MEMBER DINA TITUS

    Ms. Titus. Thank you, Mr. Chairman. I want to congratulate 
you on your recent election to represent Louisiana's Fifth 
Congressional District, and also on your appointment to the 
chair this very important committee.
    I was fortunate to have a very productive relationship with 
the former chairman, Mr. Runyan. And I look forward to 
continuing this committee's tradition of working in a 
bipartisan fashion to be sure that we provide the benefits that 
all our veterans deserve.
    I am excited to be the ranking member of this subcommittee, 
and I look forward to the work we have outlined and are going 
to be undertaking in this Congress.
    As many of you in this room know, the problems with the 
appeals process is a recurring topic in this subcommittee. 
Since joining the subcommittee 2 years ago, I have been 
concerned about the looming backlog of appeals at the VA. 
Almost 2 years ago, in June of 2013, our subcommittee met, and 
I raised the concerns that we are trading a claims backlog for 
an appeals backlog. Trading the devil for the witch, so to 
speak. As we clean up the claims, are we going then to create a 
problem with appeals?
    My statement then is equally applicable today. I warned at 
that time of an impending appeals tsunami and the need to have 
a plan to address the anticipated growth in the number of 
appeals.
    While the VA and the VBA have increased their output, all 
the metrics continue to show that the problem is growing. And 
veterans in Nevada and across the country are waiting far too 
long for a VA decision.
    As you heard the chairman, who gave some pretty compelling 
statistics, it is just taking too long. Nationally the average 
length of time to receive a decision from the VBA in 2013 was 
1,255 days. That is nearly, 3\1/2\ years, 3\1/2\ years. That is 
way too long.
    In Nevada, there are close to 1,400 appeals waiting to be 
adjudicated. And when a veteran comes to my office to say what 
has happened to my appeal, it is not very encouraging to go 
tell him, we don't know and it is going to take 3 years before 
we find out. That is just not acceptable.
    I am concerned that as we address this problem, we haven't 
been provided with a detailed plan of how we are going to 
address it in an overall fashion. We are once again receiving 
piecemeal recommendations instead of a comprehensive plan. I 
think we need to take action so we don't get too far behind and 
we are not having this exact same hearing 2 years from now.
    In Congress here, we need to work collaboratively with the 
VA and with the VSOs to come up with that plan and create a 
system that will deal with these appeals in a timely fashion. 
But we need also to ensure that while we are doing that we are 
giving them a full and careful evaluation, we are not just 
rushing through the process.
    In the 113th Congress, I highlighted a need to form a task 
force that would include the key stakeholders, would meet, have 
a hands-on approach, and come up with such a plan they could 
present to us. I appreciated at that time Chairman Miller's 
support for the idea and it eventually did pass the House.
    Today, I plan to reintroduce that same legislation and I 
would welcome members of this committee to join me as 
cosponsors.
    It is unfortunate that we have lost two years during this 
time when we could have had a comprehensive plan completed, and 
then we would be ready to meet the challenge as opposed to 
talking again about what we might need to do.
    Now, I understand that the VA has conducted a study to 
better understand the appeals process from the veteran's 
standpoint and I look forward to having you all share that with 
me and the members of this committee and the chairman 
especially.
    To me, the situation is really clear too many veterans have 
waited too long to have their appeals evaluated. It is up to us 
to try to work with the VA to improve that system and improve 
it fast. We need a better plan and I think that commission will 
help us get there. We need ideas from the experts so we can get 
to work.
    Another idea our subcommittee should explore is one that 
has been proposed by Mr. O'Rourke and Mr. Cook. And I am glad 
Mr. O'Rourke is here to create a fully developed appeal, 
similar to the fully developed claims initiative that has been 
so popular, so I hope we will hear more about that.
    Again, thank you, Mr. Chairman. I look forward to working 
with you and I am glad we are starting off early on this issue.

    [The prepared statement of Ranking Member Dina Titus 
appears in the Appendix]

    Mr. Abraham. Thank you very much.
    Are there any other members who would like to make an 
opening statement?
    I would like to welcome our first panel seated at the 
witness table, good afternoon. We are going to first hear from 
Ms. McCoy and then we will hear from Ms. Eskenazi.

                    STATEMENT OF BETH MCCOY

    Ms. McCoy. Mr. Chairman, ranking member, members of the 
subcommittee. Thank you for the opportunity to discuss VA's 
commitment to reducing the pending inventory of appeals and 
increasing efficiency within the process.
    The VA has made significant progress, 60 percent reduction 
in 22 months, on its goal to eliminate its disability claims 
backlog, which is any rating claim that is pending more than 
125 days, and improve the quality of its decisions on claims.
    VBA set a record production in fiscal year 2014 over 1.3 
million claims completed without sacrificing quality, which at 
the claim level is at 91 percent now, compared to 83 percent in 
2011. Looking at quality down at the medical issue level, the 
accuracy is at 96 percent.
    Amidst VA's record-breaking production we remain committed 
to making the appellate process more timely and efficient for 
our Nation's veterans and their families.
    With this increased rating production, VA's volume of 
appeals has grown proportionately. Historically, the rate of 
appeal has remained steady over about the last 20 years, 
regardless of production or quality. VA's historical 
administrative appeal rate has remained constant at about 10 to 
11 percent of all claimants filing a notice of disagreement or 
what we call an NOD. And about 4 to 5 percent then completing 
an appeal to the Board of Veterans' Appeals.
    These statistics indicate that veterans tend to exercise 
their right to appeal at the prevailing rate regardless of the 
nature of VBA's initial decision. This data also reflects there 
is no correlation between accuracy of the initial claims 
decisions and the rates of appeal.
    In fiscal year 2014, VBA received 145,000 NODs, which 
equates to about 11 percent of the claims decided by VBA that 
year.
    The majority of the appellate process is conducted at VBA's 
regional offices before the case is transferred to the Board 
for a final agency decision. Each regional office is required 
to review the appellant's claim file, many of them are multi-
volume files, and obtain or make substantial effort to obtain 
all the evidence that is relevant to the case.
    Due to the open record for appeals, appellants can submit 
new evidence or make new arguments at any time resulting in 
many cycles of additional development.
    During the review, the RO will also grant additional 
benefits as warranted along the way, allowing veterans to 
receive compensation benefits more quickly.
    It should be noted that approximately 72 percent of appeals 
are from veterans who are already in receipt of compensation 
benefits. VBA also oversees the Appeals Management Center, or 
the AMC, in Washington, DC, which was established in 2003. It 
is a centralized resource for processing of appeals remanded by 
the Board for additional development, about two-thirds of which 
are due to additional evidence received after they have been 
certified to the Board.
    VBA allocates significant resources to appeals in its 
regional offices, about 950 full-time employees right now, and 
at the AMC, about 191 full-time employees.
    Members of the appeals teams in the regional offices and 
AMC are dedicated to working appeals only during normal 
business hours, and have been completing disability 
compensation claims during overtime hours.
    In fiscal year 2014, VBA took almost 182,000 appeal 
actions, an increase of 13.4 percent from the prior year. VBA 
is also redesigning the manner in which employees are 
evaluated. We have launched a performance standard work group 
comprised of our leaders, union leaders and employees to do the 
work. To fundamentally change performance standards of claims 
processors from task-oriented points to a system that is one 
focused on veteran outcomes. The effort also includes input 
from others outside of VA on how performance is measured in 
other agencies and in the private sector.
    Just as we have transformed the rating claims process, we 
are looking also to transform the appeal process, using 
employee training, tools, streamlining processes and 
implementing modern technology. It is not something we can do 
ourselves, we count on working with Congress, the veterans 
service organizations and other stakeholders to explore long-
term legislative solutions that provide veterans the timely and 
meaningfully right of appeal that they deserve.
    This concludes my remarks. I will be happy to address any 
questions you have.

    [The prepared statement of Ms. McCoy appears in the 
Appendix]

    Mr. Abraham. Thank you.
    Ms. Eskenazi, you are now recognized for 5 minutes.

                 STATEMENT OF LAURA H. ESKENAZI

    Ms. Eskenazi. Thank you. Good morning, Chairman Abraham, 
Ranking Member Titus and subcommittee members. My name is Laura 
Eskenazi. I am the vice chairman and executive in charge of the 
Board of Veterans' Appeals. As you noted with me from the 
Veterans' Benefits Administration is Beth McCoy, Deputy Under 
Secretary for Field Operations, and Ronald Burke, Director of 
the Appeals Management Center.
    Thank you for inviting us here todays to discuss VA's 
commitment to providing veterans with timely and quality 
appeals decisions. We are here today representing the dedicated 
hardworking employees at VA, many of whom are veterans or 
family members of veterans.
    Working closely with Secretary McDonald, all of us are 
deeply committed to increasing efficiencies that we may provide 
our Nation's veterans with the outstanding service they 
deserve.
    The VA appeals process is very different from any other 
appeals process. It is not one in which a single appeals office 
in VA assesses whether to affirm or reverse a prior decision. 
The responsibility for processing appeals in VA is shared 
between the Veterans Benefits Administration and the Board of 
Veterans' Appeals, which is why you see both offices 
represented at the table today.
    The VA appeals process is complex. It has multiple stages, 
it is non-linear. The process is heavily set in law with a 
continuous open record that welcomes submission of new evidence 
and new arguments from the veteran at any time.
    As a result of this open record framework, the matter on 
appeal often no longer resembles the initial claim. Moreover, 
the open record often requires VBA to cycle back to an earlier 
step in the process as opposed to advancing to a final Board 
decision. This is required to comply with the legal 
requirements set forth in statute and binding case law to 
provide the veteran with the right to one review on appeal to 
the Secretary.
    Throughout an appeal, the VA has the duty to assist the 
veteran in establishing his or her appeal by ensuring that the 
record of evidence is complete, and current for purposes of 
adjudication.
    Given that nearly all appeals involved medical disability 
determinations, and that medical conditions evolve, appeals are 
frequently sent back or remanded to gather new evidence, and 
issue a new decision on that new evidence, which the veteran 
can then appeal back to the Board.
    The landscape of the veterans appeals process changed in 
1988 with the establishment of the United States Court of 
Appeals for veterans claims. As a result of the legal 
complexity that has developed with court review, it has become 
increasingly challenging for VA to complete an appeal by 
reaching a final decision. Simply put, the current design of 
the appeals process is incompatible with timely final appeals 
decisions. We have seen the remand rate from the Board rise 
steadily over the years since judicial review from a low of 23 
percent in fiscal year 1990, to over 45 percent in the last 3 
fiscal years.
    During the past year, VA has actively participated in 
collaborative discussions with the veterans service 
organizations on ideas for reform. One concept that gained 
traction was to provide veterans with a choice of a different, 
more streamline avenue of appeal. This voluntary choice is the 
core principle of what has been referred to as the fully 
developed appeal, or FDA.
    While the FDA would not be a silver bullet, it would offer 
a more efficient finality-driven approach, and perhaps serve as 
a model for other streamlining ideas.
    In conclusion, veterans are waiting too long for final 
appeals decisions under the current legal framework. We are 
very thankful for the work by Congress, this committee, and 
other stakeholders, including the veterans service 
organizations, to explore long-term solutions to provide 
veterans with the timely appeals process they deserve.
    Thank you. I would be happy to answer any questions from 
the committee.
    [The prepared statement of Ms. Eskenazi appears in the 
Appendix]
    Mr. Abraham. Thank you, Ms. Eskenazi.
    I will begin the questioning and then we will recognize the 
ranking member and other members of our panel, several come to 
mind.
    I have got a figure here, and you can tell me how accurate 
it is, I am told it is accurate. It goes from 2012 to 2014, it 
is from the Department of Veterans Affairs, it says ``59 
percent of all Board decisions contain at least one claim that 
required additional development.'' Would you agree or disagree 
with that premise?
    Ms. Eskenazi. That sounds accurate.
    Mr. Abraham. You stated in your remarks that this is a 
different process, it is non-linear. And the general broad 
question is why is it different from any other appeals process? 
And why is it non-linear?
    Ms. Eskenazi. I am happy to answer that. In most appeals 
processes, you have a decision that is made, and then when 
someone, appeals it goes to an appellate tribunal who looks at 
the initial decision based on the record that existed at that 
point in time and decides whether to affirm the decision, 
saying it was appropriate, or to reverse the decision, saying 
was wrong under the law.
    In this system it is very different. We have a system that 
has been built up over decades since World War I, and has many 
layers designed in the statute, initial appeals decisions, and 
some cases that come all the way to my office, the Board of 
Veterans Appeals, but not all. And cases that do come to the 
Board, the Board's standard of review is what is considered de 
novo. In other words, the Board takes a fresh look at 
everything and is not saying whether the first decision was 
necessarily right or wrong, it is just a new decision.
    Mr. Abraham. I understand that.
    Ms. Eskenazi. The other key aspect, if I may just continue, 
is that open record. We are not just looking at a frozen 
record, we are constantly getting new evidence.
    Mr. Abraham. It would seem that if this has been in place 
for decades as you say, it agreeably has not worked at any 
level that certainly we can move to change the non-linear 
process to something more applicable to modern technology, to 
do a much better job.
    Ms. Eskenazi. Great comment. As I said in my opening 
statement, everything changed with the creation of the judicial 
review, the United States Court of Appeals for Veterans Claims.
    Mr. Abraham. 1988.
    Ms. Eskenazi. Yes, 1988 the court was established. You took 
an already multilayered process that made sense when it ended 
in the agency and then added another layer of review which has 
contributed to the churning that we see in the process.
    Mr. Abraham. Another question here, what percentage of 
cases in the Board's inventory are those which have been 
returned from either the AMC or regional office following a BVA 
remand order?
    Ms. Eskenazi. On an annual basis, the Board last year, for 
example, fiscal year 2014, we remanded about 45 percent of the 
cases that we decided. We decided 55,000 decisions which was 
the most ever for the Board since the court was created. 
Generally, about 75 percent of cases that are remanded returns 
to the Board. When a case is remanded, BVA obtains the 
additional evidence and they issue a new decision. So some 
appeals are granted at that point and do not return to the 
Board.
    Mr. Abraham. How many come back from the AMC?
    Ms. Eskenazi. About 75 percent of remands are returned to 
the Board.
    Mr. Abraham. Okay.
    What subset of these cases have already been subject to two 
or more BVA remand orders?
    Ms. Eskenazi. It is common that the cases are remanded more 
than one time, sometimes for the same matter, sometimes for 
things that have changed in the interim. Sometimes for changes 
in the law that have taken place in the interim. So it is very 
common that cases are remanded more than once.
    Mr. Abraham. You mentioned the VDA, a newer process, that 
is coming online. Where do we stand there?
    Ms. Eskenazi. I am sorry?
    Mr. Abraham. The VBMS.
    Ms. Eskenazi. Yes, VBMS is essentially a electronic claims 
file, so for as long as the Department has done these cases 
they have been in paper form, some of them quite voluminous. 
Several years ago we moved towards the electronic claims 
folder, which is the Veterans Benefits Management System. For 
claims processing, it is more than just a record, it is a very 
robust database that performs its--a lot of functions that were 
previously manually done.
    Mr. Abraham. How effective is that VBMS for the VBA?
    Ms. Eskenazi. For the Board we are users the VBMS, instead 
of looking at files in paper, we will look at files on the 
computer screen, but at this point, that is what we are using 
it for, for the Board, is simply viewing the records of 
evidence.
    Mr. Abraham. Okay.
    Ms. Titus.
    Ms. Titus. Thank you, Mr. Chairman, Ms. McCoy, I would just 
ask you what the VA has done in terms of planning to address 
this problem that we know is coming, who has been involved in 
that planning? Have you looked at the need for more staffing or 
other resources? And what about alternatives like prioritizing 
appeals?
    Ms. McCoy. Thanks for that question, ma'am. We have looked 
at this with all of our partners, with the Board of Veterans' 
Appeals, with the veteran service organizations, with 
congressional support, looking at all the sort of opportunities 
that we can find to make this process better for veterans and 
their families.
    I would say that we are in the process right now of adding 
about 300 full-time employees in VBA, which by the beginning of 
fiscal year 2016 we will then add that number to our appeals 
cadre across the country. So that we have added some full-time 
employees, but we are also looking at efficiencies that will be 
gained with the electronic record in VBMS. Right now on the 
rating side we have about 94 percent of our ratings pending 
claims are electronic claims in VBMS. And that number is 
growing as far as the appeals every day.
    Ms. Titus. Could you address the issue just metioned, about 
the appeals that are remanded. And what are some of the causes 
for those remands, both internally and externally? I know you 
said a number of them are caused by external problems.
    Ms. McCoy. Absolutely. There are a lot of due process 
protections built into the appeals process. We make a decision 
an initial decision on a case. I mentioned in my opening 
statement about 72 percent of appellants are receiving 
compensation, and about 56 percent of them are receiving 50 
percent or more in evaluations. So it is important for us to 
focus on that initial rating claim to get those benefits in 
folks' hands. It is equally important to focus on appeals.
    We receive a notice of disagreement in an informal appeal, 
and we take action on that. That can include a step--we issue a 
statement of a case. We may also grant a benefit at that point 
and issue another rating decisions.
    If the appellant decides to make a formal appeal and file a 
form 9, then we can have additional statements to the case. 
There are decision review officer hearings before and after 
that certification. There are multiple stages in the appeal 
process to make sure the veteran has their day in court, they 
are allowed to be heard, that we make sure we gather all of the 
evidence. And because some of these appeals do pend over a 
period of time, conditions do worsen. I do want to emphasize 
that when we see a worsening, when we obtain additional 
evidence that warrants additional benefits, we pay those 
benefits right away.
    Ms. Titus. I would ask Ms. Eskenazi to kind of address that 
issue of the 72 percent of the claims who are already receiving 
some kind of benefits. If that is the case and they are already 
getting something, does it makes sense to prioritize appeals?
    Ms. Eskenazi. Well, though they are receiving some degree 
of benefits, they have a right to continue to pursue all types 
of benefits. I mean, even veterans receiving 100 percent 
disability compensation can still continue appeals. So grade of 
payment does not have any affect on the appeal.
    In terms of prioritizing, you know, certainly under the law 
currently in existence again rate of payment does not stop the 
right to appeal.
    We have many cases in the system in which veterans are 
receiving payment at 100 percent and they still continue 
appeals, and that is certainly their right to do so.
    Ms. Titus. Is there any system that makes sense as a way to 
prioritize?
    Ms. Eskenazi. I am sorry?
    Ms. Titus. Is there any kind of system that you can think 
of that would make sense for prioritizing claims?
    Ms. Eskenazi. Well, the question really becomes what do 
veterans believe would be fair for them, because although they 
may be receiving a high benefit on one disability, many 
strongly feel that they should also receive that same rating 
for other disabilities. And they have that right under this 
very due process system that we have.
    Ms. Titus. I know that the claims process has undergone 
some changes where you can fast track smaller claims, you have 
whole approaches to some, different kind of priorities. I just 
wonder if we can do that in the appeals process.
    Ms. Eskenazi. At the Board of Veterans' Appeals we are 
required to decide appeals in the order in which they are 
placed in the docket. So that is a very strict priority order. 
We do not have the ability to decide appeals outside of that 
strict order.
    So for example, remanding claims, they save their place in 
line. When remands come back to the Board, they are naturally 
older and they go right to the front of the line. As the Board 
continues to have more remanded cases and those come back, it 
becomes more challenging to reach those newer appeals because 
we have to do the older ones first.
    Ms. Titus. And since it is always open, is there any 
definition of backlog?
    Ms. Eskenazi. We talk in terms of inventory, there are so 
many stages in the appeals process and many appeals resolve at 
the early stages, and many appeals continue through all the 
stages. And even preparing for this hearing, we are were asked 
to look at the 10 oldest appeals at the Board and at that point 
in time, and we have some appeals that have started in the late 
1980s again around the time the court was created.
    They look very different today than they looked when they 
were first decided, but it is very exemplary of the veterans 
right to keep on pursuing. And VA's duty is to assist the 
veteran in trying to establish whatever claim it is that they 
are seeking. That is also part of the reason that we have the 
remand rate is to try and get that additional evidence to try 
to substantiate the benefit rather than simply just denying it.
    Ms. Titus. Thank you, Mr. Chairman.
    Mr. Abraham. Thank you, Ms. Titus.
    Mr. Lamborn, I recognize you for questioning.
    Mr. Lamborn. Thank you, Mr. Chairman, Chairman Abraham and 
Ranking Member Titus, congratulations to both of you for your 
appointments, I look forward to working with you and helping 
you in this important subcommittee.
    Ms. Eskenazi. I hear from my Colorado Springs constituents 
that it typically takes 5 years from when they request a 
hearing to when a hearing takes place. For fiscal year 2014, 
the Denver regional office received 420 hearing slots, but 
there were 2,200 veterans awaiting a hearing. For this year it 
is projected to be 450 hearing slots, but 2,100 veterans 
awaiting hearings, and that math doesn't work.
    I know you touched on this already, but tell us what I can 
tell the people like Richard--I won't mention his last name for 
privacy reasons--he has been waiting 3 years to await a 
decision. So what can I tell my veterans that you are doing to 
help this backlog?
    Ms. Eskenazi. Thank you. Yes, for hearings there is quite a 
wait time and it varies throughout the country, depending on 
the location. One thing that the Board is doing more of is 
offering video hearings. Historically, and hearings are 
optional in appeals, veterans do not have to elect a hearing 
with a Board judge because you need their appeal. And we are 
trying to do more education on that, to ensure that those who 
do request a hearing understand that it is certainly not 
required, it is their option.
    We have a few types of hearings that we offer. 
Historically, one of our 65 veterans' law judges will travel 
around the country to regional offices to sit for a week face 
to face with about 45 veterans and conduct a hearing in their 
appeal.
    We also offer hearings at central office here in 
Washington, D.C. and some veterans do elect that option. In 
recent years, we have been increasing the amount of hearings 
that we offer through video teleconference technology. That 
certainly is a much more efficient time----
    Mr. Lamborn. Anything else besides the video conferencing?
    Ms. Eskenazi. For the hearing options?
    Mr. Lamborn. Yes.
    Ms. Eskenazi. Certainly. What we are also informing 
veterans is they can also submit their arguments in writing, 
and what they would tell the judge, they can put them in 
writing and send it to the judge again, that would move their 
case along a little faster. But certainly, hearings are an area 
that we need to achieve more efficiencies.
    Mr. Lamborn. Now, as you know we have added a lot of staff 
in Congress during the years I have been serving. And we have 
added incentives, financial incentives, to employees in the VA 
to do a faster and better job. Of course, we don't want to 
sacrifice either one of those, speed and accuracy. How are 
those incentives working, in your opinion?
    Ms. Eskenazi. The board is very grateful for the increased 
resources we have received over the past 2 fiscal years. It has 
allowed us to hire over 150 new attorneys, which are so 
essential to adjudicate these appeals.
    As a result, the Board increased its output to, last year, 
55,532 appeals, which is the most in the history of the Board 
since the court review was established. So we have taken a 20 
percent increase in staffing and increased our output at the 
Board by 30 percent. So we are very grateful for those staffing 
efficiencies.
    Mr. Lamborn. And the incentives, are they helping the 
process as well, the financial incentives, bonuses, overtime, 
et cetera?
    Ms. Eskenazi. The board provides some financial incentives 
to some of our staff to reward a job well done. We are more 
focused on providing timely quality decisions irrespective of 
that sort of----
    Mr. Lamborn. Thank you. My last question, within VBA, which 
Senior Executive Services, SES employees have their performance 
measured to include this important matter of appeals?
    Ms. Eskenazi. For VBA, I will defer to Ms. McCoy.
    Ms. McCoy. Sir, in all of our performance standards for our 
senior executives in the field, so for instance, the regional 
office directors, appeals is one element of many, many elements 
that are factored into their final performance evaluation.
    Mr. Lamborn. It is one measurement that you take, or one 
metric----
    Ms. McCoy. Yes, it is.
    Mr. Lamborn [continuing]. For evaluating performance?
    Ms. McCoy. It is.
    Mr. Lamborn. Could myself, and the staff, and the chairman 
see these standards, please? We would like to see them in 
writing.
    Ms. McCoy. We will work with our legislative offices to 
answer that.
    Mr. Lamborn. Okay, thank you so much. I will take that for 
the record. Thank you so much.
    I yield back, Mr. Chairman.
    Mr. Abraham. Thank you very much. Mr. Ruiz.
    Mr. Ruiz. Thank you very much, Mr. Chairman, and ranking 
member for holding this meeting, this hearing. This is very 
important to the veterans throughout our districts and 
throughout our country.
    I am proud to represent the eastern portion of the 
Riverside County which has the ninth largest veteran population 
in the country. More than 50,000 veterans reside in my District 
alone. I am honored to once again represent them on this 
subcommittee where we will work together and shine a light on 
problems in the VA and provide veterans the benefits they have 
earned.
    Today we are focused on ensuring that veterans have the 
chance to appeal decisions on their benefit claims, which for 
many will mean the difference between access to benefits and 
even life and death.
    As today's panelists have testified, the number of appeals 
pending already approaches 3,000,000 and is only expected to 
grow in coming years. As Representative Titus mentioned, 
because we improved the claims backlog with the sheer number 10 
percent naturally will be appealed. The appeals claims will go 
up as well. So we can count on and need to be prepared to 
remedy that as soon as possible.
    We have made a commitment to caring for our veterans, and 
we owe them an answer on appeals for that care in a timely and 
accurate fashion. Especially when more than a quarter of 
veteran appeals are successful, when a decision is finally 
issued. So that's one out of four get those decisions reversed, 
and get the benefit, and the claims, and the help that they 
need.
    That is why I am reintroducing the Veterans Access to 
Speedy Review Act. My bill addresses the unaccessible appeals 
bills backlog by increasing the use of video teleconferencing, 
as you mentioned, during an appeals hearing as a substitute for 
requiring the veterans to attend in person. This is evidence-
based policy and I will give some evidence behind how that 
works.
    My legislation will guarantee veterans the option of video 
teleconferencing, guarantee them the option of video 
teleconferencing for hearings before the Board of Veteran 
Appeals to allow a hearing at the earliest possible date. In 
2013, on average, video conference hearings were held 110 days 
sooner than in-person hearings. It works.
    Should any veteran prefer an in-person hearing, my bill 
ensures that person will have the final say on the manner of 
hearing for their appeal. This simple improvement will increase 
flexibility to relieve the physical and financial burdens on 
veterans who must travel to appear at appeal hearings in 
person. It will also streamline the review process to decrease 
wait times and save taxpayers money. The VA testified that this 
bill will make processing claims more efficient and eliminate 
substantial travel costs to our veterans and the VA system.
    This bill is a commonsense, cost neutral solution which is 
why it passed the full Veterans Affairs Committee by a 
bipartisan voice vote last Congress. So I urge my fellow 
subcommittee members to support this bill and start bringing 
veterans their earned benefits as soon as possible.
    So to the panelists, and to my colleagues, with that in 
mind would you support the increased use of veterans requested 
teleconferencing by the Board of Veterans' Appeals? First, to 
my colleagues, if you do so, would you kindly consider being 
original cosponsors before I reintroduce this bill? To my 
Republican colleagues as well. And now to the panelists, can 
you describe how this has actually produced the results and how 
veterans have utilized this veteran processing tool and option?
    Ms. Eskenazi. Certainly, I am happy to address that topic. 
I have described the types of hearings that the Board offers, 
and historically it has been the face-to-face, in-person 
hearing. We have had some success increasing video hearings, 
but under the law, we have to wait for the veterans to request 
the video hearing. And if we had the option to default the 
scheduling or a video, then certainly still welcome and allow 
the face-to-face for those who really want that option. It 
would just gain some efficiencies from a logistical standpoint.
    The face-to-face, in-person hearings require finding a 
judge who travels to areas as far as Manila. And obviously--we 
have 65 judges right now and they also work intensively on 
signing decisions. So you can schedule more video hearings 
without the barriers of the travel. So that can lend to those 
efficiencies in the time saved that you referenced.
    Mr. Ruiz. How have the veterans responded to that 
opportunity?
    Ms. Eskenazi. We have had a really successful increased 
rate of video hearings. And with the new technology it has been 
very helpful. When we started this back in the 1990s, the 
technology was not too great, all tube televisions and clunky 
recorders, but everything is state-of-the-art technology, 
digital recording. And in fact, we don't see any difference in 
the outcomes of appeals where there is hearings by video, 
versus hearings face to face. The outcomes have no statistical 
difference.
    Mr. Ruiz. Thank you very much, my time is up. All of my 
colleagues will receive a copy of the bill that I will 
introduce, and hopefully you all will consider being original 
cosponsors. Thank you.
    Mr. Abraham. Mr. Costello.
    Mr. Costello. Thank you. My question is for Ms. Eskenazi, 
and ultimately, the question is going to be how and what 
stakeholder support do we need in order to transform the 
appeals process with legislative reform. I thought that you 
laid out very well for me what the Veterans Traditional Review 
Act in 1988 did to complicate--it is not to suggest that we 
shouldn't have that law--but to complicate the synchronizing 
that with the way you go about developing a claim and handling 
it judicially. All within the context of have an open record. I 
can appreciate the need for an open record. We are dealing with 
veterans, we are not dealing with a land use hearing or a 
criminal matter where you have your day in court, if you didn't 
make your argument, you are done.
    Here I think, particularly with new evidence possibly 
coming about or a claim not being fully ripe when the claim is 
made, but still the need to get that claim in the pipeline 
because you need the care or the benefit.
    I can also appreciate from the remand perspective that two-
thirds of the reason for a remand is because of additional 
evidence or due to a change in circumstances after the claim 
arose, so I can understand that. Clearly, though, there is a 
problem with the remand process here and how that keeps claims 
in the system for a very, very long time.
    It seems to me that there needs to be a remand reform 
element to how we address this legislatively. It needs to be 
fair to veterans. It also needs to enable you to streamline 
this process so that when a veteran is submitting a claim, 
either as much of that claim comes about or every alternative 
theory or justification in an argument that can be made is made 
at that time. But share with me, as you talk about clearly 
being a stakeholder in this from a legislative reform 
perspective, what we can do to help reduce the number of 
remands, either on the way in the door by making the claims 
easier to process, or if more evidence is needed and that is 
why it is being remanded, isn't there a way to maybe short 
circuit the time lag on the remand in order to get that 
evidence back in the door? What are your thoughts? How do we 
make it a more streamline process?
    Ms. Eskenazi. Great question and great summary of the 
constraints that exist in the process today.
    One thing I would note is we are very thankful for the 
support that was given to the Camp Lejeune Act recently which 
provided that for evidence that the veteran or the veteran's 
representative submit with the VA form 9, that is the formal 
appeal stage, that evidence may come straight to the Board and 
be reviewed without having to send it back for another 
decision. Now, that is for appeals filed February 2013 and 
later, which the Board is not quite working that time frame 
yet, but that will certainly help in the future.
    This is a process, because as I indicated, we are dealing 
with medical conditions and medical conditions evolve, time is 
somewhat the enemy. And so, we need to keep things moving along 
at a steady pace so that decisions can be made without lengthy 
lapses of time that allows for conditions to change. Because it 
is not only the submission of evidence from the veterans or new 
arguments, but like I mentioned, VA has an obligation under the 
duty to assist to ensure that we have everything.
    Another interesting constraint in the system is at the 
point of the Board hearing where the judge meets with the 
veteran, it is at a point that is supposed to be the end of the 
process. Yet, it is a conversation that takes place where 
oftentimes new things are illuminated and that contributes to 
having to send that back.
    Mr. Costello. How much or how often or is it feasible at 
that point in time, before a decision is rendered, knowing that 
there may not be the type of evidence needed to justify the 
claim, but perhaps also knowing that that evidence may exist or 
that the claimant should go out and obtain that evidence?
    What I fear is that, okay, you don't have the evidence 
denied. And then you are in the pipeline up the chain, which 
just becomes more frustrating rather than holding back and 
maybe rescheduling the hearing. Does that happen? Is there more 
robust activity that could happen at the lower adjudicatory 
level so that it doesn't end up knowingly getting or 
predictably getting remanded.
    Ms. Eskenazi. Certainly. And many appeals do resolve at 
those initial stages in the Department. So after the notice of 
disagreement is received by VA and certainly if the veteran 
meets with the decision review officer, a large number of 
appeals are resolved at those early stages.
    For ones that continue through and particularly come all 
the way to the Board, it is really a variety of reasons that 
lead to the need for a remand at that point. Some of it is 
changing conditions, some of it is just new allegations, some 
of it is changes in interpretations of the law that the court 
issues in the meantime. All that drives the remand cycle. But 
again, it is in an effort to try and help substantiate that 
claim as opposed to denying it and perhaps short-cutting a due 
process matter.
    Mr. Costello. And so do you feel that from a legislative 
perspective, reforms can be made in order to streamline the 
process or do you feel that that process can be resolved within 
your department?
    Ms. Eskenazi. I think that legislative reform is absolutely 
needed. And as I indicated in my opening statement, there has 
been a lot of discussion about different ways to streamline the 
processing steps in the Department, not to shortcut a benefit 
for the veteran, but to achieve the same results that we are 
receiving today, just with less steps in the process so we can 
move things along in a more timely fashion. That is part of, 
again, the FDA. I know Congressman O'Rourke has that bill or 
the express bill, or Express Appeals Act in the FDA, that the 
VSOs have been working on. I do think that there is some value 
in considering those options.
    Mr. Costello. Thank you.
    Mr. Abraham. Ms. Brownley.
    Ms. Brownley. Thank you, Mr. Chairman.
    I wanted to ask about the money morning workload report, 
which is helpful with regards to our oversight and tracking of 
the current claims. And I am wondering if there could be a 
creation similarly for the appeals process.
    I understand that it is different, the open record 
framework that you have been speaking about, but I think it is 
important to have that kind of transparency and our ability to 
be able to oversee and track that we are improving and 
improving--excuse me, the appeals process as a tool.
    Ms. McCoy. Thank you for that question. We do have some 
information on the Monday morning workload report relative to 
appeals. I think that Laura and the Board also provided annual 
chairman's report that gives quite a bit of information, but we 
certainly would engage in the discussion for how we can add 
more information and be more transparent.
    Ms. Brownley. Well, I would very much appreciate that, if 
you are willing to commit to it, because I think an annual 
report is one thing, but to have that sort of weekly update so 
that we can track it, I think, is also helpful and important.
    I wanted to also direct some questioning around the 
Veterans Benefit Management System and wanted to get a response 
from you to talk about how if there is any progress towards 
planning for an IT interface with that system so that we can 
better address our appeals? And are you doing something and if 
so, where are we in that process?
    Ms. McCoy. Absolutely. When we launched the Veterans 
Benefits Management System, our electronic paperless processing 
system, just in the past couple of years, in that timeframe we 
have more than 1 billion scanned images in VBMS currently. I 
mentioned earlier we have more than 94 percent of our pending 
rating workload in VBMS.
    Mr. Burke at the Appeals Management Center has about 97 
percent of the remands are paperless as well and we are growing 
in the number of notice of disagreement appeals at that stage 
and the form 9 appeals at that stage. It is about 50 percent at 
the NOD stage, the appeals are paperless, and about one-third 
are paperless at the form 9 stage.
    So we are working there to get more paperless and appeals 
as well. We find great efficiencies in a paperless system. In 
particular in appeals in our history have had great, I call 
competition for the claims folder. So if there was the one 
paper claims folder at the medical center for an examination, 
we would have to wait if something else came in.
    If it was at the Board of Veterans' Appeals, we would have 
to wait for that file to come back before we could take action 
on maybe a new claim. So with that one paper claims folder, we 
all wanted to have our hands on at the same time. We are able 
to do that in the Veterans Benefits Management System, so that 
is a big plus.
    As far as the functionality for workload management, we 
have more and more of that functionality being built in on the 
rating side, and also more and more automation than we have 
started to add and is additionally planned.
    As far as the Board, we have been working with them, they 
are in the two systems working with VACOLS and using VBMS as 
access to view and read the file. We have, again, focused 
initially on the rating side to get started and we are looking 
to expand that on the appeals side.
    Ms. Brownley. And do you have any time frame on the appeals 
side when you might be fully up to speed or fully, you know, 
operational in terms of paperless?
    Ms. Eskenazi. I am happy to address that question. The 
board has been leading an effort of gathering what types of 
requirements. We had the assistance of a contractor in the fall 
looking at all portals in the department into the appeals 
process because the Board hears appeals not only from VBA; that 
is certainly the most, but we do receive appeals from NCA and 
VHA as well.
    So we have a high-level plan to ensure that what is 
designed works for the entire enterprise, not just one part. 
And we are very hopeful. I mean, the 2016 budget is not set 
yet, but we are very hopeful that we will be able to move out 
with some funding on that planning.
    Ms. Brownley. So if the funding is there in 2016, you might 
be complete by 2016?
    Mr. Eskenazi. I don't know about complete but certainly in 
a more positive way forward.
    Mr. Brownley. Thank you.
    Thank you, Mr. Chairman.
    Mr. Abraham. Mr. Bost.
    Mr. Bost. I will yield.
    Mr. Abraham. Okay.
    Mr. O'Rourke.
    Mr. O'Rourke. Mr. Chairman, Ranking Member Titus, thank you 
for allowing me to join you today in the hearing.
    Ms. Eskenazi, I didn't fully catch what you said in your 
opening statement about a fully developed appeal. It seemed to 
diverge from your written testimony. Could you repeat that or 
expand upon what you said?
    Ms. Eskenazi. Certainly. What I referenced was the concept 
of providing veterans with a choice of a different type of 
appeals process, and that was the core concept that was 
discussed during the past year with the VSOs where you provide 
the veteran with notice at the time that they elect an appeal 
and allow them to go the traditional route that we have today 
or allow them to try a different route where the appeal would 
immediately come to the Board.
    And you would have to give them the right type of 
explanation but allow them to make that informed decision and 
give them the opportunity to opt out as well. If they opted for 
that program and then later changed their mind, certainly they 
could slip back into the normal process. So that was the 
concept that was discussed, and I believe some of the VSOs will 
talk about it in more depth today, and it is just one of these 
ideas of how can we provide the same ultimate benefits to 
veterans with just a streamlined process.
    Mr. O'Rourke. The bill that we introduced last year and we 
are planning to reintroduce again in this session of Congress 
with Mr. Cook of California would essentially do that, give the 
veteran a choice. The VA would establish a pilot program. It 
would be an alternative. They would have to come with their 
appeal fully baked, ready to go, and would sacrifice the 
ability to add additional evidence. And for that, at least in 
our concept of this, you would cut two-thirds off the current 
wait times. You would get a much faster response.
    You know, it still would be upwards of a year, which seems 
like a long time to me, but it is far better than two and a 
half or three years, which is the standard. And then to some of 
Mr. Costello's line of questioning, you would also eliminate 
the remands back to the regional offices, and BVA would retain 
jurisdiction.
    I have personally no pride of ownership on this. If you all 
want to do it administratively, if somebody else has a better 
way to get there, I am interested to hear from DAV and others 
on their ideas about this. I will get behind that.
    But let me ask you this; could you implement what you just 
described or what I just described administratively? Do you 
need Congress to do anything, or could you just do this 
yourself?
    Ms. Eskenazi. One of the biggest constraints for the Board 
in doing it without legislation is our requirement by law to 
decide cases in the order in which they are placed in the 
docket. So if we bypass those middle steps, but the case got to 
the Board only to then have to wait in line behind all the 
others, that is not really providing any real effective outcome 
for the veteran. It is almost a false promise, and that is very 
heavily set in statute.
    Mr. O'Rourke. That is the part that you need law to change, 
an act of Congress?
    Ms. Eskenazi. Yes. Absolutely.
    Mr. O'Rourke. So you are committed to the concept. You are 
supportive of that whether it comes through this bill or some 
other bill. Those parts of it that you could change and 
implement administratively, you are committing today to doing 
that, and those parts which I just understand to be that one 
that you just identified that require an act of Congress, you 
will help this committee in ensuring that we have the 
appropriate language to do that.
    And we could get this done this session of Congress and 
have it running if we could get that bill to the floor this 
year, before the end of this year, before the end of 2015?
    Ms. Eskenazi. Certainly. Thank you so much for your 
support. We view this as a team effort. There is a lot of 
stakeholders, and we are all looking to do what is best for our 
veterans, so the team effort approach is the best approach. 
Thank you.
    Mr. O'Rourke. Great. Really pleased to hear that.
    Thank you, Mr. Chairman.
    Mr. Abraham. Thank you.
    I am going to open a second round of questioning. What 
needs to happen right now for the Board's computer system to 
better connect with the VBMS?
    Ms. Eskenazi. Thank you. So I presume you are referencing 
our database, which the acronym is VACOLS, Veterans Appeals 
Locator System--I forgot a word there. It is a database that we 
have had in place since the 1990s, and it is an Oracle 
database. It is very antiquated, and it is a workload tracking 
database. It does not contain the official record, but it is a 
workload management tool.
    Mr. Abraham. So you need a new software update?
    Ms. Eskenazi. Well, we really need everything to be merged 
into one database, whether it is somehow linked or subsumed. 
VBMS is the robust enterprise----
    Mr. Abraham. Who is running point on that? I mean, who is 
taking that by the horns, so to speak, and actually doing 
something today? Is anybody addressing that as we speak?
    Ms. Eskenazi. The board has been strongly advocating for 
this need, and everybody agrees with the concept. The initial 
focus of VBMS was to get it built up and running for the claims 
processing, and that is well on its way. But what we have seen 
is you really don't get to a point where you end that because 
there is always new programming features that are needed.
    We have done an in-depth study, as I indicated, as to what 
we need for the appeals part of the process from an electronic 
standpoint. So as we receive the funding, which we are very 
hopeful to receive, we will be ready to go with a plan as 
opposed to just getting money and then having to create a plan. 
And obviously we will have to work with--it is a heavy process 
to work with IT programmers to ensure that they build exactly 
what is needed.
    Mr. Abraham. Is VBA supporting the Board in this endeavor?
    Ms. McCoy. I would like to answer that, sir. We are 
supportive of making sure that the Board has the appropriate 
functionality. It is a matter of we work with our VBMS Program 
Management Office, we work closely with IT, and we have a 
prioritization of things that, a long wish list of things that 
we would like to have built into VBMS. It is a matter of 
prioritization, and it is a matter of fitting enough in each of 
our every-three-month releases so that we can have that 
functionality.
    Mr. Abraham. Okay. Why does VBA not have functionality now? 
Ms. McCoy. Either one.
    Ms. McCoy. I would say it is a matter of prioritization. We 
have right now in the middle of additional functionality, 
additional automation to support the rating side. It is in 
competition. It is high on the list, but there is not enough, I 
would call it room, in each of our releases to develop and 
release the functionality right now that we all want for the 
Board.
    Mr. Abraham. Okay. Laura, do you have anything to add?
    Ms. Eskenazi. Only that, you know, that is a huge priority 
for the Board for appeals. We are using VBMS as indicated to 
view the claims file. We really need to maximize the 
efficiencies from an IT standpoint removing manual processes 
where possible.
    We know that VBMS can never replace people in terms of the 
adjudication process, the review by the attorney and the judge; 
but we know that there is a number of efficiencies that we can 
put in place to better manage work flow and to mitigate risk in 
tracking all of those appeals by using different databases.
    Mr. Abraham. Just one quick follow-up. I am certainly all 
for better efficiency. I actually read the appeals process four 
times last night trying to get the mechanics of it, and I was 
given this cartoon, and I use that very loosely because there 
is nothing funny about this process.
    I see no time constraints. If a veteran, he or she brings a 
claim into a regional office, I see no time restraints that 
decision is made. I see no time restraints on the veteran's 
part of any time restraints. The only time constraints I see is 
when the veteran has to do a Form 9 or he has a certain amount 
of time to do a Letter of Disagreement, but there is no time 
constraints placed on the VA itself as far as getting the work 
done in an efficient manner. What are your thoughts on that?
    Ms. Eskenazi. That is an accurate observation, and 
certainly we have heard that from veterans before. We will give 
them periods of time to respond to documents or processes and--
--
    Mr. Abraham. What about giving the veterans, holding them 
on a time constraint also? Has that been discussed among you 
guys?
    Ms. Eskenazi. Certainly. I mean, the goal in the appeal is 
to make sure that we get it right. And oftentimes when 
additional evidence is needed, whether we have to go get a new 
examination or to seek Federal records perhaps from another 
agency, these things can take varying degrees of time. So----
    Mr. Abraham. Years evidently.
    Ms. Eskenazi. Yeah. Too long.
    Mr. Abraham. Too long. Okay, thank you.
    Ms. Titus.
    Ms. Titus. Thank you.
    I would just ask Ms. McCoy, you said you were hiring 300 
new people. I wonder what kind of people they are, how you made 
this decision, if you are sending any of them to Nevada?
    Ms. McCoy. Great question. So the folks in our appeals 
teams are some of the most experienced individuals that we 
have, particularly our Decision Review Officers. They have the 
whole broad spectrum of responsibilities on appeals, and they 
often do some of the training for others in the office, so it 
takes a long time to develop that experience level.
    So this is kind of a two-step approach that we are taking. 
So this year currently, we are adding 300 individuals across 
the country to our Veterans Service centers, so bringing them 
in at the introductory levels and getting them trained so that 
we then will have them up to speed, and targeting the beginning 
of fiscal year 2016, we can then promote those 300 FTE slots 
into the appeals teams.
    Ms. Titus. And the Nevada part?
    Ms. McCoy. I would have to look on that, ma'am. There are 
some for Nevada.
    Ms. Titus. All right. Let me know.
    Ms. McCoy. Okay.
    Ms. Titus. Thank you, Mr. Chair.
    Mr. Abraham. Mr. Zeldin.
    Mr. Zeldin. Mr. Abraham, I look forward to serving with you 
and Ms. Titus.
    It is an important subcommittee. I represent the 1st 
Congressional District of New York. Suffolk County has the 
highest veterans population of any county in New York State, 
the second-highest population of any county in the country. We 
are served by the VA in Northport.
    I was serving in the State Senate previously, and we 
received a lot of outreach from people who were so frustrated 
with the backlog of the Federal system. They were reaching out 
to their State Senator, their councilmen, their county 
legislator, whoever could possibly help them. I am honored to 
serve on this committee and this subcommittee, and I appreciate 
you being here and anything that you can possibly do to help 
reduce that backlog. My office, we are looking to be partners 
with you with the challenges that you face.
    And thanks again for yielding.
    Mr. Abraham. Thank you.
    Mr. Bost.
    Mr. Bost. Thank you, Mr. Chairman.
    I sit here quietly, and I have tried as a state legislator 
to help, as was spoken a while ago, our veterans. And when you 
see the amount of bureaucracy they have to deal with, and I 
understand as I listened to everyone that we are trying to 
reduce and get that opportunity so they can receive benefits 
quicker.
    Just listening from this panel, and that is why I passed, 
Mr. Chairman, on asking a while ago, we can't even figure out 
what the amount of, level of bureaucracy that we have to climb 
through, through your agency as elected officials. How 
devastating is that to our veterans as they try to move through 
this process? I see that you are trying, and I am glad to hear 
on the computer system and that we are trying to update that.
    Is it our fault as Congress over the years that we created 
this, in your opinion? Or is it the fault of the agency in the 
case that they themselves have created intergovernmental rules 
that make it so difficult? I know we, you know, are going to 
try to answer, ask questions that go on the record, but this is 
the type things that my constituents want to know.
    How do we straighten it out? How do we lighten it up? These 
people have served us. They have claims. They need the process 
to move fairly quickly, and we are talking three years, five 
years, ten years. You work with it every day. How do we lighten 
it up, speed it up, and how do we work with you to achieve 
that?
    Ms. Eskenazi. Great observation, and certainly one that we 
share in terms of trying to explain this very dense process to 
veterans who many of which just want a decision.
    One thing to keep in mind is this process, as convoluted as 
it may appear, it is in an effort to constantly provide 
veterans more opportunities. It is never to say no. It is so 
much due process that it is an approach that is driven to 
constantly look for that piece of evidence, hear that next 
contention, add on that next claim perhaps the downstream 
element, and keep trying to help the veteran get to the point 
where they feel satisfied with the decision that they have.
    And it is somewhat subjective for the veteran as to when 
that point arrives. Some veterans are satisfied early in the 
process. Other veterans, such as the ten oldest appeals we 
submitted to this committee, have been pursuing claims appeals 
that have evolved since the late 1980s.
    And on the one hand that is a very unique feature in 
offering so much due process to not say no, that it is again it 
is a paternalistic type of a process. The consequence, the flip 
to that, though, is the time that is involved. And it is 
counterintuitive to someone to explain that when they ask the 
simple question how long does it take, and when will I get my 
answer?
    And when you have a process that is designed with so many 
stages and so many points that we welcome new evidence, we look 
for new evidence, we look for new arguments, and that may be 
required to cycle back, it is just those two principles kind of 
conflict against each other.
    So then the question can then become, well how can we still 
provide those same outcomes for our Nation's veterans with a 
process perhaps a little more streamlined. And as we know, the 
core of this process was designed after World War I, and there 
has been many changes in the law over the time but usually 
adding more process. And when the Court was created, it was 
another layer of review added on top.
    And veterans are receiving more benefits than ever as a 
result of this process, so how can we get those same outcomes 
with perhaps just a more streamlined set of steps. And that is 
why the concepts that are imbedded in the idea of the fully 
developed appeal, the Express Appeals Act, those types of 
concepts are worth pursuing if we can get stakeholder agreement 
to see if that can be one avenue to offer more of a streamlined 
process.
    Mr. Bost. Thank you.
    Mr. Abraham. Ladies and gentlemen, thank you for being 
here. We appreciate your presence. You are now excused, and we 
will pause just for a minute while we seat the second 
committee. Thank you.
    On this second committee, we are going to get as much of it 
done as we can before we have to recess for voting, so we are 
going to move along very efficiently.
    Welcome, everyone. Mr. Manar, you are recognized to present 
the testimony of Veterans of Foreign Wars for five minutes.

                  STATEMENT OF GERALD T. MANAR

    Mr. Manar. Thank you.
    Chairman Abraham, Ranking Member Titus, and members of the 
subcommittee, thank you for the opportunity to present to you 
the views of the 1.9 million members of the Veterans of Foreign 
Wars of the United States and its auxiliaries on this important 
topic.
    I would like to talk about some of the issues facing VA and 
the Board of Veterans Appeals, as well as suggestions for 
addressing some of those problems. The VA says that it made 
over 1.3 million decisions in compensation and pension 
disability claims in 2014, which is over 150,000 more decisions 
than ever before. At a 10 percent appeal rate, VBA would be 
expected to receive approximately 130,000 notices of 
disagreement based on those decisions, roughly 13,000 more than 
in the previous year. Sadly, those appeals will be in line 
behind the nearly 300,000 appeals VA currently has. These 
appeals affect real veterans and their families.
    Mr. Chairman, there are over 4,900 appeals pending in the 
New Orleans regional office. Nevada has 1,400 appeals pending, 
while California has 16,500 appeals awaiting action in their 
three regional offices. As bad as these numbers are, they pale 
in comparison to the over 25,000 appeals pending in Florida. If 
past is prologue, those appeals may wait over three years 
before VA transfers them to the Board of Veterans Appeals.
    There are several reasons why the appeals workload has 
grown from 130,000 in 2004 to about 300,000 today. With the 
advent of judicial review in 1988, a significant number of 
decisions by the courts have forced the VA to more closely 
follow the letter of the law and regulations. On several 
occasions VA has been forced to readjudicate thousands of 
decisions, increasing work in both regional offices and the 
Board of Veterans Appeals.
    Finally, many court decisions required veteran law judges 
to write clearer, more comprehensive decisions for appellants. 
These are all good things. However, much work had to be redone, 
and decisions today may take somewhat longer to write, reducing 
production at the Board of Veterans Appeals.
    With the creation of the Secretary's twin goals of no claim 
older than 125 days and quality at a 98 percent level, VBA has 
focused with military-style precision on reducing the 
disability claim backlog. Appeals team personnel, including 
decision review officers, were frequently directed to process 
other work. As a consequence, appeals grew from 255,000 at the 
beginning of 2014 to close to 300,000 today.
    It is time for VA to declare victory and start processing 
the rest of its work. What actions can be taken to stop the 
increase and start driving down the appeals workload? There are 
no magic bullets to solving this problem. Solutions must be 
crafted with this injunction in mind, that any solution that 
helps VA process more appeals cannot be done at the expense of 
veterans and the rights they currently enjoy. That is what 
makes this really hard work, finding solutions that allow VA to 
process appeals faster without hurting the due process rights 
of veterans and their families.
    We make five specific recommendations in our written 
testimony. These recommendations include an increase in BVA and 
VBA staffing, release of the Statement of the Case within 30 
days of receipt of a Notice of Disagreement where there is no 
additional evidence submitted, eliminate the new material 
evidence requirement to reopen a claim, and reenergize the 
decision review officer position to make it more effective in 
reducing appeals.
    Finally, building on the ideas of a committee member, 
service organizations and representatives from the VA worked 
together last year to explore and expand on a fully developed 
appeal initiative. The idea is to fast track certain appeals to 
the BVA following a waiver of existing rights by claimants. 
While we support the FDA concept, there are hurdles which need 
to be overcome before the idea is ready for testing.
    The most significant problem involves the waiver of rights 
by claimants. In order to be effective, any waiver must be 
based on a clear understanding of the decision made by VA. As 
we describe in our written testimony, it is our belief that the 
notices provided by VA to many claimants simply do not give 
them the information they need to understand the reasons for 
the decision. Many notice letters fail to detail specific 
evidence used in making the decision.
    Further, many decisions offer only conclusions as a 
substitute for analysis of the evidence and reasons and basis 
for the decision. As a consequence, claimants don't have enough 
information to decide whether the decision was most likely 
correct, what the evidence showed, and what evidence is needed 
to obtain a different result. Without this information, many 
claimants do not have enough information to knowingly waive the 
procedural rights they have under the current appeals process.
    In conclusion, we applaud the VA and members of this 
committee and the VSO community for working together to find 
solutions to reduce the appeals backlog. However, the key to 
making any FDA initiative work are two factors. The claimant 
must have access to all the evidence considered by VA in making 
its decision, and the claimant must be fully informed of the 
reasons and basis for each decision made by the VA.
    Mr. Chairman, this concludes my statement. I will be happy 
to answer any questions you or the committee members may have.

    [The prepared statement of Mr. Manar appears in the 
Appendix]

    Mr. Abraham. Thank you. Mr. Hearn, you have five minutes.

                   STATEMENT OF ZACHARY HEARN

    Mr. Hearn. Thank you. 1,461 days, this is the number of 
days in a standard four-year armed services enlistment. 1,937 
days, this is the average number of days a veteran will wait to 
have a claim adjudicated from initial filing through the 
various stages of appeals. It is staggering that a veteran may 
have to wait longer to have a claim properly adjudicated than 
they may have served through their service contract.
    Good afternoon, Chairman Abraham, Ranking Member Titus, and 
members of the committee. On behalf of National Commander Helm 
and the 2.4 million members that comprise the Nation's largest 
wartime veterans' service organization, the American Legion is 
eager to share our research and the firsthand experience 
regarding the appeals process.
    As you know from my written testimony, the American Legion 
has more than 3,000 accredited service officers assisting more 
than 700,000 veterans nationwide. Just over a year ago the 
American Legion testified regarding VA's accuracy in 
adjudication based upon the American Legion's Regional Office 
Action Review Program and challenged VA's accuracy statistics.
    Understanding the importance of accuracy is critical to 
fixing the appeals process. When VA fails to accurately 
adjudicate claims from the beginning, veterans are forced into 
the far lengthier and more complicated appeals process. 
Completing claims accurately the first time is the very simple 
answer to eliminating large volumes of claims in the appeals 
system.
    VA identifies a backlog claim as a claim that has not been 
adjudicated within 125 days. VA does not consider appealed 
claims as backlogged. They merely refer to them as an 
inventory. But let's be clear. For the nearly 290,000 veterans 
awaiting adjudication of their appeals, a figure larger than 
the population of Cincinnati, they consider their claims 
backlogged.
    Nearly 75 percent of claims presented at the Board of 
Veterans Appeals are found to either have been inappropriately 
denied at the regional office or inadequately developed and 
prematurely denied. VA can correct this by starting at the 
regional office. Too often claims remanded by BVA are remanded 
for improper development and for failing to follow their 
legally mandated duty to assist. Often American Legion national 
appeals representatives will note VA did not offer 
consideration regarding if a condition manifested secondary or 
was aggravated by a previously service-connected condition.
    If VA examiners were compelled to consider if conditions 
manifested in ways other than directly related to service, many 
remands for examinations would be eliminated. The American 
Legion's ROAR trips have repeatedly noted this in our written 
reports. While VA asserts it does not place a higher priority 
on the amount of claims adjudicated, its current work credit 
structure does not address accuracy in its metric, which 
rewards speed over quality.
    In the past year, the American Legion established Veteran 
Crisis Command Centers at various locations throughout the 
country resulting in the awarding of nearly $1 million in 
retroactive benefits. These events allowed veterans to gain 
instant personalized access to Legion and VA personnel. In 
nearly every location, we came across veterans with claims that 
had errors in their adjudication.
    Fortunately through the joint efforts of the American 
Legion and VA, we are able to correct these errors. However, 
for these veterans the years of suffering and the impact it had 
on their employment and their families cannot be restored 
simply through the disbursement of a retroactive payment.
    Today if a claim is remanded by a BVA judge, the 
instructions are forwarded to the Appeals Management Center to 
have requisite development conducted. These remands, or 
returned claims, come with clear and distinct instructions from 
the judge, yet the American Legion consistently sees cases 
remanded multiple times despite having clear instructions 
provided by that BVA judge. This is what is known as the 
hamster wheel of remands where a veteran remains in 
adjudication purgatory while waiting for VA to conduct proper 
development and finally render a decision.
    The most common questions we get from veterans are why does 
it take so long? Why can't VA get it right the first time? Or 
are they just waiting for me to die? Often you can hear the 
pain in their voice. As an advocate, it kills me to constantly 
hear their frustration and desperation. This is what veterans 
face, an adjudication process that rewards the quick and not 
the accurate, an appellate process that repeatedly notes errors 
in development, and adjudication that may cause years of 
hardship for our Nation's veterans.
    During a testimony last summer, former Ranking Member 
Michaud stated, ``There should not be a victory lap taken by VA 
if they eliminate the backlog of claims meanwhile having an 
abundance of appeals in inventory.'' The American Legion 
wholeheartedly agrees. The greatest impact on the appeals 
process would be eliminating the need to appeal in the first 
place. VA needs to eliminate the current work credit structure 
that places a greater emphasis on quantity of claimed 
adjudicated rather than the quality of those adjudications.
    An increased emphasis on training and the manner that the 
training is delivered to its adjudicators needs to happen now. 
As VA works to eliminate the backlog, we need to ensure that 
they are not moved from a backlog claim to a backlogged appeal. 
Most importantly, we need to ensure that our veterans finally 
begin receiving the benefits and services they have earned 
through their dedicated service.
    Again, on behalf of our National Commander Michael Helm and 
the 2.4 million members of the American Legion, we thank the 
committee for inviting us to speak today, and I will be happy 
to answer any questions the committee may have.

    [The prepared statement of Mr. Hearn appears in the 
Appendix]

    Mr. Abraham. Thank you, Mr. Hearn. Ms. Rauber.

                 STATEMENT OF DIANE BOYD RAUBER

    Ms. Rauber. Chairman Abraham, Ranking Member Titus, and 
members of the subcommittee, Paralyzed Veterans of America 
would like to thank you for the opportunity to offer testimony 
regarding the appeals process. There are many problems 
contributing to delayed appeals which has become more apparent 
with VA's focus on reducing the claims backlog. A major cause 
of delay is the high number of remanded appeals.
    Approximately 45 percent of appeals are remanded often due 
to an order for a new VA medical examination. This action 
occurs even when favorable private medical evidence or opinions 
from VA treating physicians are in the record.
    In PVA cases the record often includes extensive medical 
information from a Spinal Cord Injury Center physician who has 
specialized expertise and an intimate knowledge of the 
veteran's medical condition. Too often for PVA members, the 
opinion of a C & P examiner who reviews the file and sees the 
veteran once is weighed more heavily than the opinions of the 
Spinal Cord Injury Center experts.
    When unnecessary resources are used to seek medical 
information already in VA's possession, not only is the 
veteran's individual appeal delayed, the overall process slows. 
At times these requests are also in conflict with the benefit-
of-the-doubt doctrine which requires the VA and the Board to 
grant a claim when there is a proximate balance of positive and 
negative evidence.
    When an appeal is remanded, it typically returns to VBA 
jurisdiction through the Appeals Management Center. It is at 
this step where appeals tend to stall and be subject to 
multiple remands because the AMC or regional office fails to 
ensure the Board's specific orders are fulfilled. For example, 
the Board may order a new examination by a medical specialist 
which is instead completed by a nurse practitioner, or the 
Board poses specific questions for response from the examiner 
which are not fully completed, or the VA fails to follow VHA 
procedures for scheduling the examination, resulting in the 
veteran missing it. These are just a few examples, but when the 
AMC fails to ensure compliance with the Board's orders, the 
appeal must be remanded again, adding significant delay before 
the veteran receives a final board decision.
    Remanded appeals can take a year or more to complete. If 45 
of every 100 decisions are remanded, it stands to reason that 
the number of appeals will only increase as each remanded 
appeal that is not granted in full must return to the Board for 
further review while original appeals continue to be certified 
to the Board. New original appeals linger while older remanded 
appeals with earlier docket dates are decided.
    A greater reliance on private medical evidence or VA 
treating medical evidence and more consistent application of 
the benefit-of-the-doubt doctrine could reduce remands. A 
review of examination scheduling procedures would also be 
helpful, as would a review of AMC training, procedures, quality 
review, and accountability, to ensure proper handling of 
remands.
    Furthermore, when the Board determines a veteran is 
entitled to advancement on the docket due to age, financial 
hardship, or serious illness, that designation should be 
honored and enforced on remand.
    There are other ideas to reduce delay. PVA has partnered 
with other VSOs as well as VBA and Board Administration in a 
working group on how an expedited appeals pilot program might 
allow certain appeals to be decided in a more timely fashion.
    It is the intent of PVA with VSO partners to support the 
introduction of bipartisan legislation to implement such a 
pilot program. In addition, PVA continues to support the 
strengthening of the DRO program and requiring DROs to work 
solely on appeals where their expertise can be of best use.
    As has been discussed by several of the other panel 
members, an unexpected challenge has occurred in the area of 
technological improvement. PVA supported VA's adoption of VBMS. 
Unfortunately VBMS lacks appeals-friendly features to allow it 
to be efficient. We are pleased that the Board's administration 
has included VSOs in meetings to collaborate on ideas to 
improve VBMS specifically for appeals work. However, adequate 
funds must be ensured so the Board can accelerate VBMS 
improvements and continue to engages VSOs in that process.
    Finally, Mr. Chairman, when a claimant files a meritless 
appeal or compels a representative to do so, that appeal clogs 
the system and draws resources away from legitimate appeals. 
Since 2012, PVA has required clients to sign a notice of 
limitation when they execute their power of attorney to 
acknowledge we will not appeal every adverse decision and 
reserve the right to refuse to advance any frivolous appeal in 
keeping with VA regulations.
    To help a veteran make the most informed decision regarding 
the merits of an appeal, the VA should provide improved case-
specific notice of the initial rating decision.
    Mr. Chairman, we would like to thank you once again for 
allowing us to address this truly important issue, and we look 
forward to working with you in the 114th Congress.
    I would be pleased to take questions.

    [The prepared statement of Ms. Rauber appears in the 
Appendix]

    Mr. Abraham. Thank you, Ms. Rauber. We are going to take a 
recess and go vote. We will be right back. Mr. Varela, you can 
continue for 5 minutes, please.

                  STATEMENT OF PAUL R. VARELA

    Mr. Varela. Good afternoon, Chairman Abraham, Ranking 
Member Titus, and members of this subcommittee. DAV appreciates 
being invited to testify today to discuss the challenges facing 
the 360,000-plus veterans, dependents, and survivors with 
pending appeals. Over 95 percent of these pending appeals 
pertain to disability compensation benefits. Our written 
testimony today provides the subcommittee with a number of 
recommendations; however, my oral statement will focus on just 
a few.
    First, VBA and the Board require adequate resources to 
process appeals. While, this is not the only solution, it is 
certainly part of it. It is estimated that VBA's total appeals 
inventory is roughly 360,000, of which roughly 65,000 are 
within the jurisdiction of the Board, and roughly 32,000 of 
these appeals are within the Board's physical possession. It is 
no understatement to say the appeals inventory is too large and 
this number continues to climb every day.
    The fact that appeals keep rising suggests a mismatch in 
manpower needed to process the appeals at both the Board and 
regional office level. Also contributing to the growth of 
appeals has been VBA's reliance on the appellate workforce to 
process claims for disability compensation. VBA also relies on 
the appellate workforce in order to meet their 2015 goals of no 
claim pending over 125 days with 98 percent accuracy. This 
practice diverts personnel to focus on claims processing. VBA 
utilizes all available resources to achieve their 2015 goal, 
which contributed to a drastic increase in pending appeals.
    Second, VBA's Decision Review Officer Program must be 
strengthened as it is one of the most critical and 
indispensable procedures available to appellants within the 
current appeals processing model. While an appellant elects the 
DRO option, it affords the option to resolve issues locally at 
the regional office level. For those appellants represented by 
DAV, our national service officers have direct access to 
decision review officers and often work with them to identify 
potential solutions to resolve appeals.
    Given the critical nature of the DRO process, it must be 
strengthened and resourced adequately. Furthermore, the 
appellate workforce must focus their efforts on the appeal 
inventory and not repurpose to work claim-related initiatives. 
Unfortunately, VBA traded one backlog for another due to their 
all-hands-on-deck approach to realize the 2015 goals.
    Third, Congress, VA, and stakeholders must look at 
innovative reforms to improve the appeals process. One 
innovation has become known as the fully-developed appeals 
pilot program. There is no one solution to remedy the problems 
facing veterans, dependents, and survivors within the appeals 
process. DAV, working together with Congress, stakeholders, 
VBA, and the Board believe that a good solution exists to offer 
relief for some with appeals. The FDA pilot program is meant to 
share some of the similarities and build upon the successes of 
the fully-developed claims program.
    The FDA pilot would offer potential appellants a third 
option if they choose to file an appeal. They could choose the 
traditional appeals process. They could choose the decision 
review officer review process, or the FDA process. In the pilot 
FDA, an appellant would elect to forego several procedural 
steps within the current standard appeal processing model.
    Some components of an FDA election trades the issuance of a 
statement of the case and hearings for quicker review of the 
record by the Board, allows an appellant to supply any 
additional evidence at the time of the election, allows for an 
opt-out option at any time up to the Board's ruling on the 
appeal, would preserve all due-process rights under the current 
appeal processing model if removed from the FDA, and has the 
potential to save roughly 1,000 days of appeal processing time.
    An FDA election is not for everyone. It is not the cure-all 
to end-all. It gives some appellants another option by offering 
a safe bypass around some regional office processing 
requirements. It not only benefits veterans, their dependents 
and survivors directly by saving them up to 1,000 days of 
processing time, but would also relieve some of the pressure at 
the regional office level by diverting FDAs directly to the 
Board.
    The FDA is still imperfect, but we continue to reach out to 
Congress and other stakeholders to assure that we arrive at a 
balanced, reasonable, and safe conclusion. We do want to 
acknowledge the efforts of Congressman O'Rourke, Congressman 
Cook, and their staffs for their work in the 113th Congress on 
the Express Appeals Act, which shares many similarities with 
the FDA proposal.
    Finally, we also want to thank the subcommittee and your 
staffs for the willingness to listen to our input, 
recommendations, and concerns, and look forward to working 
together with you to approve the appeals process, for veterans, 
their dependents, and survivors, now and into the future.
    Mr. Chairman, Ranking Member Titus, and members of this 
subcommittee, thank you for allowing DAV to testify at today's 
hearing. I am prepared to answer any questions you or the 
subcommittee may have.

    [The prepared statement of Mr. Varela appears in the 
Appendix]

    Mr. Abraham. Thank you, Mr. Varela.
    Mr. Vale from the Vietnam Veterans of America. 5 minutes, 
please.

                     STATEMENT OF JIM VALE

    Mr. Vale. Good afternoon, Chairman Abraham, Ranking Member 
Titus, and distinguished members of the subcommittee. Vietnam 
Veterans of America thanks you for the opportunity to present 
our views today. The real question that should be asked is why 
would we keep a claims system going that is wrong 70 percent of 
the time? VA-arranged decisions contain too many errors and 
Board decisions are too inconsistent. Any lasting solution 
needs to address these problems.
    It is a well-established principle that VA's mission is to 
provide benefits to veterans and their families in a non-
adversarial, pro-claimant system. When Congress enacted 
judicial review for veterans' claims in 1988, it did so with 
the clear intent to ensure a beneficial, non-adversarial system 
of veterans' benefits. We support modernizing the VA system so 
that all veterans receive more timely and accurate adjudication 
of their claims and appeals. And we support improving the 
efficiency of the claims adjudication and appeals process. 
Nonetheless, these changes cannot come at the expense of 
abandoning due process and other major aspects of the pro-
claimant system designed by Congress.
    VA's motto is ``To care for him who shall have borne the 
battle and for his widow and his orphan.'' In practice, 
however, it appears the mission for some VA bureaucrats is to 
limit the government's liability to our Nation's veterans by 
formalizing the claims and appeals process to the point where 
benefits are unfairly restricted. As General Bradley, VA's 
first administrator, said in 1946, ``We are dealing with 
veterans, not procedures; with their problems, not ours.
    Veterans should not have to give up any of their rights in 
order for VA to process their claims and appeals more quickly. 
In the past, some VBA executives have even gone as far as to 
suggest reducing the notice of disagreement period from 1 year 
to just 60 days, change the standard review at the Board from 
de novo to appellate review, close the record at the Board and 
eliminate all decision review officer positions. Yet, none of 
these suggestions actually benefits veterans, but it does make 
the VA's job easier.
    Vietnam Veterans of America has put forth eleven 
suggestions in our testimony that will move forward to fixing 
the VA system. You each have a copy of those items. The crutch 
of the problem here is VA has an inadequate number of staff to 
deal with its enormous backlog of claims and appeals and they 
work in a flawed work credit system that favors quality over 
quantity. Therefore, we suggest fixing the work credit system.
    BVA's supervisors and employees need to stop gaming the 
work credit system. It shouldn't be easier and quicker to deny 
a claim than to grant one. VA still has to fulfill its 
statutory duty to assist. There should be no work credit 
awarded for taking shortcuts. If a claim is denied, no work 
credit should be awarded until the duty to assist is fulfilled.
    Next, VA should increase the number of staff. VBA needs 
more raters and DROs, and the Board of Veterans' Appeals needs 
more veteran law judges. For example, let's look at the Waco 
regional office. They only have eight DROs, yet they have over 
18,700 appeals. That is 2,300 appeals per DRO. That is the 
highest DRO workload in the country. Put in another way, they 
have eight DROs trying to do the work of 30. The national 
average is 640 appeals per DRO.
    Mr. Chairman, would it surprise you that Waco makes up 15 
to 20 percent of all of our appeals at the Board of Veterans' 
Appeals? The board has 65 veteran law judges. In contrast, the 
Social Security Administration has over 500. Clearly, the Board 
needs more veteran law judges as its appeals backlog continues 
to climb. An even better solution is a round table discussion 
or discussions among VSOs, members of this committee, and VA 
representatives to resolve these issues.
    In closing, the war against Japan lasted 1,347 days. In 
2013, it took VA an average of 1,603 days to issue a final 
agency decision on remanded veteran appeals. Mr. Chairman, the 
appeal should not last longer than the largest war our nation 
has ever fought.
    Thank you for the opportunity to present our views today, 
and I should be glad to answer any questions you may have.

    [The prepared statement of Mr. Vale appears in the 
Appendix]

    Mr. Abraham. Thank you, Mr. Vale. I will agree with that 
statement that you made about the appeals taking longer than 
the war.
    I will begin the questioning and this will be addressed to 
each of you. What I am hearing from the previous panel and 
certainly this panel, whether it is the AMC spot, the BVA, at 
each step of the process, there seems to be a log jam. Certain 
of you see it in one spot, certain in others, where the primary 
problem is, but evidently every step of the ladder is a major 
stepping in hindrance.
    So my question is to each of you--I will start with the 
organizations: Give me, we will say two of your solutions that 
you would implement now to help get this ball rolling very 
quickly.
    Mr. Varela. I will take that question.
    Mr. Abraham. And we want a brief description from every one 
of them, just a minute.
    Mr. Varela. Okay. All the way from the Board of Veterans' 
Appeals to the Appeals Management Center to every regional 
office, not only do they require the resources, which is 
manpower, to do the lifting, the heavy lifting right now, they 
also need to be focused on appellate work. When you divert the 
appellate workforce, which is marginal at best, to address all 
the appeals that are pending, what can we expect? We can expect 
a spike and an increase in the inventory. To constantly move 
them around and to constantly shift them around, we ignore the 
appeals, and that is just very harmful and detrimental to those 
in the pipeline.
    The other would be to continue working on the FDA proposal, 
which has been mentioned several times during our discussion, 
with Congress bipartisan support and stakeholder input to 
insure that we arrive at a good and safe conclusion on that 
proposal.
    Mr. Abraham. Ms. Rauber.
    Ms. Rauber. I think we would agree to continue to work 
towards the fully-developed appeals process, and I also think 
the other thing is really getting down to figuring out a way 
for the Appeals Management Center's feet to be held to the fire 
in enforcing the orders of the Board, because we are just 
seeing too many cases that come back two, three, four times 
that we are briefing and presenting to the Board where the AMC 
has not complied with what the Board is telling them to do.
    Mr. Abraham. Mr. Hearn.
    Mr. Hearn. I think that there is an interesting point. 
Repeatedly, VA will say that a certain percentage of claims are 
appealed, and they will use that as kind of their focus point. 
And it is true, but you have to remember, those are just a 
certain percentage of claims that a veteran elects to appeal. 
That doesn't necessarily reflect the level of quality of 
adjudication. If you look at the Appeals Management Center, 
where all of these claims are subject to Board review following 
their adjudication, you see that it doesn't stand up to the 
fire, that more and more of these claims are remanded.
    Now, if these raters are trained by the same people that 
are being trained by--of the raters out in the field, then it 
only stands to reason that you have got a bigger issue here 
than you would like. So the first thing is, that you need to 
make sure that the proper level of development is occurring at 
the regional office because this will stave off the need for 
the appeals. And until you can accomplish that, I think we are 
just going to be chasing our tails, is really what happens.
    The other thing is to get rid of this work credit system. 
Because, going back to high school economics, I remember the 
teacher said, ``people respond to incentives predictably.'' 
Well, if you have created a work credit system where you are 
focusing on quantity versus quality then it is only natural 
that you are going to focus on pumping out as many 
adjudications as possible and not necessarily doing it in the 
most accurate manner.
    Mr. Abraham. Thank you.
    Mr. Manar.
    Mr. Manar. As I mentioned in my testimony, Secretary 
Shinseki, with the best of intentions, established goals which, 
at least initially and in informal conversations, he 
acknowledged were goals that were probably not achievable but 
certainly would help focus the Veterans Benefits Administration 
to begin to work more and more disability claims.
    However, over the years, those goals became set in concrete 
and VBA only talks about its backlog, its workload in terms of 
disability claims, not the appeals, not the dependency claims 
that 4 years ago sat at 40,000 pending at any one time. Today, 
there are over 200,000 pending at any one time, simply because 
they have changed a work process to allow them to process 
disability claims more quickly. Everything they have done has 
been worshipping at the feet of this God of these twin goals. 
As I said, declare victory. Let's move on from that. Let's work 
on all the work.
    Resources, I agree. Both the BVA and VBA need to be 
appropriately resourced for the work that they have got today. 
I understand that it costs money, but at the same time, 
Congress can deal with reduced workloads and deal with the 
staffing issues in the outyears. The problem is now, and you 
can begin to solve it by throwing--I hate to say that, but 
throwing more people at the problem.
    The other thing is the quality of decisions. Many veterans 
appeal because they don't understand what was decided. They are 
not told that they are missing one piece of evidence that could 
make the difference between getting the benefit they seek and 
not, and as a consequence, they appeal because they are looking 
for more information, or perhaps somebody who is a little bit 
friendlier who can grant where it has been previously denied.
    Now, many of these appellants learn through the long, 
arduous appeals process what was missing. But if they had that 
information at the beginning, then fewer of them would appeal. 
They would simply go out and get that piece of evidence they 
need. So those are the three things that I think are important.
    Thank you.
    Mr. Abraham. Thank you.
    Mr. Vale.
    Mr. Vale. Mr. Chairman, the VA never seems to have enough 
time to do the job right the first time, but has plenty of time 
to do the job wrong over and over again. With inadequate 
resources, VA is having to rob Peter to pay Paul. Veterans' 
benefits are a cost to war, and VA needs more resources because 
of the mismatch between supply and demand. The VA needs more 
staff to accomplish its mission. And also, the work credit 
system needs to be fixed. We always hear about raters being 
fired for not meeting their quotas, but we never heard of a 
rater being fired for poor quality. And so you have an agency 
that is underfunded with the work credit system that 
incentivizes quantity over quality and that needs to be 
stopped.
    And lastly, something else that would be, as far as the 
appeals, it is best to prevent an appeal. It is best to resolve 
at the lowest level possible. And as a service officer, I have 
prevented a lot of appeals at the regional office by being able 
to go directly to the rater, correct the problem without even 
having to go into the appeals process. And I am concerned that 
is going to be taken away from us with a national work queue, 
which is in my statement.
    Thank you.
    Mr. Abraham. All right. Thank you, all. You guys are down 
in the trenches and you understand or know where the problems 
lie, so that is why I asked the question. Thank you very much.
    Ms. Titus.
    Ms. Titus. Thank you. As I listen to you, I have heard Ms. 
Boyd Rauber say we need a pilot program for expedited appeals; 
Mr. Varela talked about the need to develop the full FDA; all 
of you say we need more staff and resources, hopefully those 
300 people will help a little bit; and all of you say we need 
to reward staff for quality and not just quantity.
    I think I agree with all of that. I think those are good 
recommendations, and I want to work with you on them because I 
think they fit right in with the proposal I made at the very 
beginning that we need a serious commission to come with us, 
with these things spelled out, showing how we can implement 
them so this committee can then take action and not just keep 
talking.
    And so I look forward to working with you to see if we 
can't meld all these things and come with a hard set of 
specific recommendations so we can move forward. And I 
appreciate it.
    Thank you, Mr. Chairman.
    Mr. Abraham. I am going to go back to a second round of 
questions, just you and I, it looks like.
    This goes back to each member of the panel here. Tell me 
whether or not, explain to the committee whether you believe 
that a veteran who receives an initial decision by the VA is 
provided with adequate information to fully understand the 
decision made by the VA. And therefore may knowledgeably decide 
whether or not to file an appeal. And I think some of you 
actually answered this but I want to hit it one more time. Just 
briefly. Time is short. But give me a good answer, a fair, an 
honest answer.
    Mr. Manar. I have been fortunate, with some of my friends 
on our legislative staff, to meet with committee staff members 
over the last couple of months, and one of the things that was 
mentioned at one of these earlier meetings was that your staff 
had just come back from a regional office when they looked at 
letters to veterans about the decisions in their cases and they 
were incomprehensible.
    Now, there are some letters that VA pumps out through this 
simplified notification letter process that are numbers-driven 
and can be understood; but where any kind of analysis of the 
evidence is required, any kind of discussion, it is largely 
absent. And it has consequences. Claimants just don't know the 
reason why the decision was being made in their case. The 
reason could have been perfectly valid but they are not being 
told what it is.
    Mr. Abraham. Mr. Hearn.
    Mr. Hearn. Mr. Manar, he hit the nail on the head. The 
problem with the VA letters is it doesn't explain exactly what 
is going on. Veterans do not realize the three criteria to meet 
service connection. They don't realize you need an incident in 
service, current diagnosis, and a nexus statement linking the 
current condition to the incident. And so if you deny it, and 
nobody is talking about why exactly it is being denied or the 
letter doesn't clearly describe that.
    And then to enter this fully-developed appeals process, you 
are kind of going down a dangerous path, that until VA provides 
a proper letter of notification, we are not doing any veterans 
any favors because they don't understand exactly what they are 
appealing. It would be the equivalent if you were in second 
grade and you were taking a test on fractions, never taught 
about fractions and then you fail the test and the next day you 
take fractions again, nobody taught you about fractions and you 
fail it again. Well, there is no wonder why you fail them, 
because you were never being taught.
    So you need to understand exactly what is going on here, 
and until that issue is addressed then I am afraid we are just 
going to keep going back and going through this cycle all over 
again.
    Mr. Abraham. Ms. Rauber.
    Ms. Rauber. And I think that is something that all of us 
have discussed in the various working group meetings that they 
have had, that there definitely is a need for more case-
specific notice for a veteran, because as the others have said, 
you know, a veteran not only doesn't understand what the basis 
might be for an appeal, but he or she also wouldn't understand 
if maybe there is not a basis for an appeal. And I think for 
them to truly understand what the right road is to go down, 
they need to have case-specific notice.
    Mr. Abraham. Mr. Varela.
    Mr. Varela. Dr. Abraham, DAV and our independent budget 
partners, since the inception of the simplified notification 
letters, which is really what we are talking about today, have 
taken issue with those letters. And we believe that they need 
to be improved. There is certainly room for improvement there. 
What we would really like to see is VBA sit down with us in a 
working group and listen to what we have to say, take what we 
have to say to heart and listen to our recommendations to 
hopefully, without legislation, improve these letters.
    To legislate better letter writing is going to be very 
difficult, and then to legislate it in a way that is 
understandable for the one-point-something million claimants 
that are filing claims that is going to be even more difficult, 
that everybody has that same level of understanding. We agree, 
they need to be improved, and we really want to work with VBA 
to see those improvements come to fruition.
    Mr. Abraham. Mr. Vale.
    Mr. Vale. Mr. Chairman, the simplified notification letter 
does not provide an adequate reasoning basis for a veteran to 
make a decision. And when they presented this to us, we told 
them this is a bad idea. The abbreviation for simplified 
notification level is SNL, similar to Saturday Night Live, but 
we told them it is still not ready for prime time. It doesn't 
provide an adequate reasoning basis. And on top of this, now 
they have introduced this new NOD form and they are calling 
veterans, if you want help with your appeal, check the box here 
and some VA will call you. And also they ask the veteran to ask 
what they think the percentage disability should be and we are 
opposed to that. But again, the simplified notification letters 
are inadequate, and they need to be improved.
    Mr. Abraham. Okay. Thank you.
    Ms. Titus, do you have anything else?
    Ms. Titus. I would just say as you work to improve the 
letters sent to veterans, be sure that there is an element of 
standardization because we have seen one region vary from 
another quite often. We want to be sure that everybody improves 
the letter writing, not just one particular office or a couple 
here, and a couple there.
    Mr. Abraham. Well, we certainly thank you for helping our 
veterans. Continue to do so, please. You are excused.
    We will pause just for a minute while we seat this third 
panel.
    Welcome, gentlemen. So we have Mr. Barton Stichman of the 
National Veterans Legal Service Program; and Mr. Kenneth 
Carpenter of the National Organization of Veterans' Advocates.
    Mr. Stichman, you are first recognized for 5 minutes, sir.

                STATEMENT OF BARTON F. STICHMAN

    Mr. Stichman. Thank you, Mr. Chairman, ranking member, and 
other members of this committee for the opportunity for the 
National Veterans Legal Services Program to address the 
appellate claims adjudication process. VA can do much to 
eliminate the disfunction that currently exists in the 
appellate claims adjudication system, but Congress can and 
should play a role in eliminating the disfunction that 
currently exists. NVLSP urges Congress to adopt five 
legislative solutions, which I think meet the answer to the 
questions that the chairman asked the last panel.
    First, authorize the BVA to develop evidence itself without 
having to remand to the AMC or regional office. 15 years ago, 
then-Secretary of Veterans' Affairs, Anthony Principi, decided 
a partial solution to the hamster wheel phenomenon was to amend 
VA regulations to allow the BVA to develop additional evidence 
itself without remanding to the RO in a case in which the Board 
determined that a final decision could not be issued because 
additional development was necessary.
    Forcing the BVA to remand to the AMC or the local ROs 
lengthens the adjudicatory process because the BVA does not 
have direct authority over the AMC and RO, meaning the BVA 
cannot control whether the AMC or RO provides expeditious 
treatment or properly complies with the remand instructions. 
Allowing BVA development without a remand to the AMC or RO 
further streamlines the appellate process by eliminating the 
need for the RO or AMC to review the record and prepare a 
written supplemental statement of the case before the case is 
returned to the BVA for another decision.
    Second, provide the veterans organizations with the right 
to petition the VA General Counsel for a binding precedent 
opinion on the proper interpretation of a statute or 
regulation. This would address the lack of clear rules and 
precedents that burden the system now. By providing 
stakeholders, the veteran service organization, with the right 
to petition the VAGC to adopt a particular interpretation of 
the statutes of regulations that are supported by the 
petitioning VSO, the GC will be required to issue an opinion 
binding on the ROs and the BVA. Currently, the VA General 
Counsel has the authority to issue these binding precedent 
opinions on its own, but this authority is seldom utilized.
    Three, authorize the Court of Appeals for Veterans Claims 
to certify a case as a class action on behalf of similarly-
situated VA claimants, require the VA to put a moratorium on 
the claims of all similarly-situated claimants while the case 
in court is pending; and once the court finally decides the 
case, require the VA to apply the decision to all pending 
claims that were subject to the moratorium. This streamlines 
the adjudicatory process for similarly-situated cases.
    Four, prohibit the regional offices and the BVA in a case 
in which there is positive evidence supporting the award of 
benefits from developing negative evidence against the claim 
unless the RO or BVA first explains in writing why the existing 
evidence is not sufficient to award benefits.
    One reason for the existence of the hamster wheel 
phenomenon is that in a case in which the veteran submits 
adequate positive evidence in support of a claim, the BVA, or 
even the RO, sometimes does not simply award the benefits 
sought. Instead, the agency extends the life of the claim by 
remanding to obtain yet another medical opinion from a VHA 
physician. Veterans advocates call this longstanding VA 
practice developing to deny. In addition to fostering the 
hamster wheel phenomenon, the practice is inconsistent with the 
pro-claimant adjudicatory process and the statutory benefit-of-
the-doubt rule.
    Five, require the VBA to change its work credit system for 
VA adjudicators so that raters do not get work credit for 
denying a claim without first obtaining the evidence needed to 
comply with the VA duty to assist.
    I see my time is up, and I will be happy to answer any 
questions you may have.

    [The prepared statement of Mr. Stichman appears in the 
Appendix]

    Mr. Abraham. Thank you, Mr. Stichman. Mr. Carpenter, you 
have 5 minutes there.

               STATEMENT OF KENNETH M. CARPENTER

    Mr. Carpenter. Thank you, Mr. Chairman. The National 
Organization of Veterans Advocates wants to thank this 
committee for offering us this opportunity to offer testimony 
on these very important issues. I have been assisting veterans 
and their families with VA appeals for more than 30 years. I 
began doing appeals prior to judicial review. And prior to 
judicial review, although the appeal process was lengthy, it 
is, in retrospect, reasonable by comparison to what has 
occurred since judicial review.
    It is easy to blame judicial review, but judicial review is 
not responsible for the backlog in the largely-accumulated 
delays in processing appeals. NOVA has three specific 
recommendations: The first recommendation would require a major 
statutory change; the second and third recommendations, we do 
not believe would require a major statutory change, but we do 
believe it would be significant.
    First, NOVA recommends the amending of 7105, which is the 
statutory provision that concerns the appeal process. We 
recommend the elimination of both the statement of case and the 
substantive appeal. These requirements are simply no longer 
needed. They had merit and reason in the prior-to-judicial-
review environment. The elimination of these two currently 
required processes would cut by significant time period the 
delays inherent in this process. The requirement for a 
statement of case and a substantive appeal, in fact, now 
contribute to the delays, as is verified by the statistics.
    Second, if the committee and Congress are not willing to 
amend 7105 with such a major change, 7105 at least needs to be 
amended to explicitly require the certification of an appeal 
and the transfer of that appeal to the Board within 60 days. 
The chairman mentioned in earlier questioning the observation 
that the VA has very few, if any, time limits imposed upon them 
by Congress. This is an implementation, this is a 
recommendation that will impose a specific timeframe.
    The current delays in getting appeals physically from the 
regional offices to the Board is taking too long because the 
regional office controls the certification of the appeal. 
Congress needs to tell the regional offices by statute, in no 
uncertain terms, that within 60 days of the receipt of the 
substantive appeal, that the appeal will be certified and it 
will be transferred to the Board.
    Now, one of the potential consequences of this is that 
currently of the 70,000 appeals that the Board has, only half 
of them are physically before the Board, because the other half 
have not been transferred to the Board. This is going to put 
the burden of the appeal process where it belongs, with the 
appeal. The agency, by not certifying appeals, by not 
physically moving those claims to the Board, is contributing to 
this backlog, again, as the statistics clearly demonstrate.
    Third and finally, there are two statutory provisions that 
deal with remands and use ambiguous and unclear language for 
the handling of a remand from both court and the Board. And the 
statute uses the term ``expeditiously handled.'' The fact is, 
is unless this Congress by statute tells the agency what the 
expectation is, expeditious treatment is going to remain 
ambiguous. We recommend a 6-month action report if the remand 
has not been resolved within that time period. And after that 
date that written explanations every 6 months be provided for 
why there has been no resolution.
    The removal of the ambiguity and the imposition of specific 
time frames, we believe, will clearly assist the problems that 
exist with remands because there is no clarity of Congress' 
expectation as to what the timeframe is to get a remand 
resolved. And if you don't tell them, then you have seen what 
is going to happen. They are simply going to be dealt with as 
the VA chooses to deal with them, which is not acceptable.

    [The prepared statement of Mr. Carpenter appears in the 
Appendix]

    Mr. Abraham. Thank you, Mr. Carpenter.
    Ms. Titus. Mr. Chairman, I am afraid I have to leave, but I 
would ask unanimous consent to allow you to continue the 
questioning, and I will get the information on my return.
    Mr. Abraham. Thank you. Hearing no objection, so ordered. 
Thank you so much for being here and for your very insightful 
questioning.
    Ms. Titus. Thank you, Mr. Chairman.
    Mr. Abraham. We appreciate you very much.
    Mr. Stichman, in your written testimony, you noted that in 
the most recent version of the annual report of the chairman of 
the BVA, the average days pending between the fine of a notice 
of disagreement, which begins the appeals process, I 
understand, and an initial decision of the BVA was 3 years and 
5 months. However, you state that the time it takes for a final 
decision to be made on a claim is often much, much longer. 
Explain the difference there, please, sir.
    Mr. Stichman. The 3 years and 5 months is the average 
according to the fiscal year 2013 report by the BVA chairman 
from the filing of the NOD to the Board decision. But as we 
have heard today, the Board decision often does not finally 
decide the claim. 45 percent of those appeals result in a 
remand, so the claim is going to continue on from there. It 
takes another year at the AMC, more years if it is remanded to 
the regional office.
    And then the AMC or regional office has to review the 
evidence obtained and prepare a new decision and then 75 
percent of them, which aren't granted, are returned to the 
Board, then the Board has to re-decide the case. The board may 
remand again, we have heard, because the regional office or the 
AMC didn't fully comply with the instructions of the Board. 
That is why we recommend that the BVA be in charge of 
development as Secretary Principi envisioned 15 years ago, so 
the BVA can ensure right away that the remand instructions are 
followed.
    Mr. Abraham. Thank you.
    Mr. Carpenter, this question will be for you, and thank you 
for your testimony. You have argued that the appeals system is 
struggling due to the high volume of cases remanded by the 
Board to the AMC and RO, which, as we just said, has been 
consistently around 40 percent for decades now. As you note, 
the Board is essentially required to remand the appeal if the 
case is not fully and sympathetically developed as required by 
Congress intent and enacted in the judicial review in 1988.
    I do find it troubling that the VA in 40 percent of the 
cases does not meet Congress' intent regarding the treatment of 
veterans and their benefits. Could you discuss this a little 
further, as far as the arguments concerned?
    Mr. Carpenter. There are really two components: The first, 
and it was mentioned in the earlier panel by the Veterans 
Service Organization, primarily by Vietnam Veterans of America, 
that the claim is simply not fully and sympathetically 
developed to its optimum before the VA makes a decision on the 
merits.
    Mr. Abraham. So does that go back to the initial VA claim 
at the regional office?
    Mr. Carpenter. Absolutely, and that is where the problem 
begins. The decision gets made and the statistics clearly 
demonstrate that the claim was not fully developed because it 
has to be sent back for another exam or for the obtaining of 
other records for the obtaining of additional evidence from 
other governmental entities and all of that should have been 
done before the decision was made in the first place. That is 
the first part of it.
    The second part of what we have recommended is that, 
frankly, you have to put some teeth into the remand statute. 
Expeditious treatment is, frankly, nonspecific. No one at the 
VA has ever defined what that means. Therefore, they do it when 
they do it. Congress needs to clarify that they mean 
expeditious treatment is something within a reasonable time 
that you will specify. If you specify that time, then that 
gives a target for them to work towards and they currently do 
not have a target.
    The clock doesn't start running on them, and veterans and 
their representatives are simply helpless because there isn't a 
remedy available judicially except to wait for that decision, 
because we can't go back to court until a sufficient amount of 
time, which has been interpreted in the court's decisions 
before the veterans' court to be at least a year waiting on 
that development. And there shouldn't be a full year granted.
    The chairman made a reference to the sanctions that were 
taken earlier against the Secretary, and what happened in that 
case was is that the VA simply lost it. If they don't have a 
specific tracking mechanism by a specific target date by 
statute, then that is what is going to happen in this clearly 
overloaded system is that cases are going to get lost.
    Mr. Abraham. Thank you, gentlemen. That is going to be the 
end of questioning. You are excused. We certainly appreciate 
your presence here.
    So the testimony today heard, it raises many additional 
questions, and I look forward to addressing these in future 
meetings, certainly addressing it with the Department itself. 
My colleagues on the committee, we will get together and talk 
it out very frankly, and the stakeholders who took the time to 
present their concern today and to those who assist the 
veterans on the veterans day-to-day, a very heartfelt thanks 
from me and, I assure you, the rest of the committee members.
    So, again, thanks everybody for being here. As initially 
noted, the complete written statement of today's witnesses will 
be entered into the hearing record. I ask unanimous consent 
that all members have 5 legislative days to revise and extend 
their remarks and to include extraneous material. Hearing no 
objection, so ordered. We are adjourned.
    [Whereupon, at 2:08 p.m., the subcommittee was adjourned.]

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