[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]



 
      LEGISLATIVE HEARING ON THE VETERANS APPEALS IMPROVEMENT AND 
                       MODERNIZATION ACT OF 2017

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

                                HEARING

                               before the

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

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                          TUESDAY, MAY 2, 2017

                               __________

                           Serial No. 115-12

                               __________

       Printed for the use of the Committee on Veterans' Affairs
       
       
       
       
       
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                     COMMITTEE ON VETERANS' AFFAIRS

                   DAVID P. ROE, Tennessee, Chairman

GUS M. BILIRAKIS, Florida, Vice-     TIM WALZ, Minnesota, Ranking 
    Chairman                             Member
MIKE COFFMAN, Colorado               MARK TAKANO, California
BRAD R. WENSTRUP, Ohio               JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American    ANN M. KUSTER, New Hampshire
    Samoa                            BETO O'ROURKE, Texas
MIKE BOST, Illinois                  KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine                J. LUIS CORREA, California
NEAL DUNN, Florida                   KILILI SABLAN, Northern Mariana 
JODEY ARRINGTON, Texas                   Islands
JOHN RUTHERFORD, Florida             ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana              SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto 
    Rico
                       Jon Towers, Staff Director
                 Ray Kelley, Democratic Staff Director

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 
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                            C O N T E N T S

                              ----------                              

                          Tuesday, May 2, 2017

                                                                   Page

Legislative Hearing On The Veterans Appeals Improvement And 
  Modernization Act of 2017......................................     1

                           OPENING STATEMENTS

Honorable David P. Roe, Chairman.................................     1
Honorable Timothy J. Walz, Ranking Member........................     2
Honorable Mike Bost, U.S. House of Representatives...............     3
Honorable Elizabeth Esty, U.S. House of Representatives..........     4

                               WITNESSES

Honorable Dina Titus, U.S. House of Representatives, Nevada......     5
Mr. David C. Spickler, Executive In Charge; Acting Vice Chairman, 
  Board of Veterans' Appeals, U.S. Department of Veterans Affairs     6
    Prepared Statement...........................................    32

        Accompanied by:

    Mr. David R. McLenachen, Director, Appeals Management Office, 
        Veterans Benefits Administration, U. S. Department of 
        Veterans Affairs
Mr. Louis J. Celli, Jr., Director, National Veterans Affairs and 
  Rehabilitation Division, The American Legion...................     8
    Prepared Statement...........................................    34
Mr. Jim Marszalek, National Service Director, , Disabled American 
  Veterans.......................................................     9
    Prepared Statement...........................................    36
Mr. Ryan M. Gallucci, Director, National Legislative Service, 
  Veterans of Foreign Wars of the United States..................    11
    Prepared Statement...........................................    43

                       STATEMENTS FOR THE RECORD

Military Officers Association of America (MOAA)..................    47
National Association of State Directors of Veterans Affairs 
  (NASDVA).......................................................    49
National Organization of Veterans' Advocates (NOVA)..............    50
National Veterans Legal Services Program (NVLSP).................    54
Paralyzed Veterans of America (PVA)..............................    58
Vietnam Veterans of America (VVA)................................    63

                        QUESTIONS FOR THE RECORD

Department of Veterans Affairs Responses to Post Hearing 
  Questions......................................................    66


      LEGISLATIVE HEARING ON THE VETERANS APPEALS IMPROVEMENT AND 
                       MODERNIZATION ACT OF 2017

                              ----------                              


                          Tuesday, May 2, 2017

            Committee on Veterans' Affairs,
                    U. S. House of Representatives,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 334, Cannon House Office Building, Hon. David P. Roe 
[Chairman of the Committee] presiding.
    Present: Representatives Roe, Bilirakis, Wenstrup, 
Radewagen, Bost, Dunn, Arrington, Rutherford, Higgins, Bergman, 
Banks, Walz, Takano, Brownley, Kuster, O'Rourke, Rice, Correa, 
Sablan, Esty, and Peters.

          OPENING STATEMENT OF DAVID P. ROE, CHAIRMAN

    The Chairman. Good morning the hearing will come to order. 
Thank you for being here today.
    We all know the problem. The VA's appeals process is 
broken. Last year, VA testified that it takes on average 5 
years for a veteran to get a decision from the Board of 
Veterans Appeals. And the problem is getting worse. As of 
January 1st, 2015, there were 375,000 appeals pending in VBA 
and Board. A little more than 2 years later on April 1st, 2017, 
VA's backlog had grown to 470,000 a 20 percent increase. VA's 
current appeals system is slow, cumbersome, and just doesn't 
serve the veterans very well. We have to do better.
    There are improvements that can be made without 
congressional approval such as improving its IT system, 
updating decision letters, and most importantly ensuring 
workers are giving veterans accurate decisions in the first 
place. But at the same time, Congress has to make some changes 
to give VA the tools it needs to ensure that veterans receive a 
fair and timely decision on their appeals. I am committed to 
doing just that, as this entire Committee is.
    This draft bill is the result of extensive negotiations 
among VA, VSOs and other veterans' advocates. That is not to 
say that the Committee is not open to other ideas.
    I am looking forward to your testimony and suggestions on 
how we improve the bill to ensure VA is best serving our 
Nation's veterans. After this hearing, I intend to work with 
Mr. Bost, Ms. Esty, Ranking Member Walz and all my colleagues 
on this Committee to move forward with a bill that we can take 
to the floor of the House as soon as possible.
    But I also promise that our work will not end after the 
bill passes the House. I plan to work with Chairman Isakson and 
our Senate colleagues to get an appeals reform bill on 
President Trump's desk this year. So the reforms will go into 
effect as soon as possible.
    I will now turn it over to Ranking Member Walz for an 
opening statement.

      OPENING STATEMENT OF TIMOTHY J. WALZ, RANKING MEMBER

    Mr. Walz. Well, thank you to Chairman Roe for holding this 
hearing and for that commitment to move this forward. To acting 
vice chair Spickler, director McLenachen and all the 
representatives of VSOs, a special thank you to the gentlelady 
from Nevada, our colleague and former Member of this Committee, 
Ms. Titus for her champion of appeals reform and for sticking 
with it. We thank you for being here and look forward to your 
testimony.
    Today, each of us are part of a once in a generation 
opportunity to reform the disability claims process for our 
Nation's veterans. I am happy we might actually be able to see 
the finish line. Chairman Roe's leadership has been critical in 
getting it this far. He has our full confidence in making sure 
that we are able to find those compromises necessary.
    I want to pay tribute to the role the VSO community always 
plays in legislation, of being there and willing to work 
through this, bringing hard decisions to the tables, and 
working through compromises where we could get them all in the 
name of what is best for veterans. Without them, the best 
policy ideas and technical expertise would mean nothing because 
it would not have the collation it takes to pass and implement 
this.
    I know not everyone is in total agreement, we look at all 
points of view which receive testimony today. But the process 
has been inclusive, it has been transparent and it has been 
bipartisan. I am proud of that and thankful to the Chairman's 
leadership for that.
    I also want to thank VA's Secretary Shulkin for integral 
role that VA played it from the beginning. VA helped to pull 
stakeholders together, provided expertise, and consistently 
made appeals reform legislation a top priority for these past 3 
years. Veterans need this legislation to be passed into law. 
The system is broken and we are responsible for fixing it. We 
need the fix to work and not create new and unforeseen 
problems. I know Chairman Bost and Ranking Member Esty have 
been working hard to do that. And I thank them for taking this, 
and going with it, and improving on it and getting it to this 
place.
    I am here today to do my part to encourage Members on our 
side of the aisle to do the same for veterans find partnership, 
find the working solutions, and get this thing over the finish 
line.
    Thank you, Mr. Chairman. And I yield back the remainder of 
my time.
    The Chairman. I thank the gentleman for yielding.
    With that, I yield to Mr. Bost, the author of the draft 
legislation we are considering today and who can detail what 
the proposal would do.
    I understand Mr. Bost, the chair of one of our 
Subcommittees intends to introduce appeals legislation today 
with our colleague, Ms. Esty. I am pleased that the bipartisan 
cooperation by the leaders of the Subcommittee on Disability 
Assistance and Memorial Affairs.
    And with that Mr. Bost, you are recognized.

            OPENING STATEMENT OF HONORABLE MIKE BOST

    Mr. Bost. Thank you, Mr. Chairman. I would like to start 
off by thanking the Subcommittee Ranking Member, Ms. Esty who 
has worked hand in hand with me with this important issue. She 
and I cohosted a roundtable earlier this year with the VA and 
the stakeholders, and I am looking forward to introducing this 
legislation with her later today.
    This proposal incorporates the same provisions that were 
negotiated among the Department and the VSOs last year and 
which passed this House as part of the H.R. 5620 on September 
14th of last year. The base agreement between the VA and the 
VSOs would give veterans more options when pursuing their 
appeals, including the chance to get a faster decision by 
waiving their right to have a hearing or submit new evidence.
    One of the compromises made by the VSOs last year was to 
end the duty to assist after VA issues the initial decision. 
However, the compromise also gives the veteran the right to 
keep the original effective date of the claim, as long as the 
veteran files new and relevant evidence on his or her claim 
within a year following a VA decision.
    While last year's bill was a good start, my bill goes 
further by including help for more than 470,000 veterans who 
currently have an appeal at VA. My proposal would allow some of 
the veterans who have been waiting for years to get decisions 
on their appeal to take the advantage of this new system. 
Unfortunately, we must limit the number of veterans who can opt 
in because VA is concerned that if too many veterans opt in, 
the new system will be overwhelmed and unable to operate 
successfully.
    Members are also probably aware that last March, GAO 
released a report that raised serious concerns about whether 
the VA is ready to change its appeals process. To address the 
GAO's concerns about the implementation, this proposal would 
require the VA to develop a detailed implementation plan, 
including how the Department will update its software and 
training. The GAO would then review VA's plan and let us know 
if they are any gaps.
    Additionally, the VSOs would work directly with the 
veterans appealing their decisions. And would be able to review 
and comment on the plan. Moreover, the bill would require the 
Secretary to keep VSOs in the loop as the Department works 
through the planning process. Before the reform could go into 
effect nationwide, the Secretary would have to collaborate with 
the VSOs and confirm that the Department is ready to go.
    Finally, my bill would ensure that this transparency will 
continue by imposing rigorous reporting requirements so that we 
can ensure that the Department is treating all veterans fairly.
    Mr. Chairman, I appreciate you holding this hearing today 
and I yield back.
    The Chairman. I thank the gentleman for yielding. Ms. Esty, 
do you have any comments?

         OPENING STATEMENT OF HONORABLE ELIZABETH ESTY

    Ms. Esty. Yes. Thank you, Mr. Chairman. And I am very happy 
to join my colleague, Mr. Bost here today, and the entire 
Committee in our united effort with the VSOs and with the VA to 
improve this process. And I want to thank all of you. And 
welcome to the Committee the distinguished gentlewoman from 
Nevada who has been so key in making this happen and has been 
doing so much of the spadework.
    As we know, there are more than 470,000 veterans whose 
appeals are waiting. And if you are lucky as a veteran that 
means 3 years to wait. If you are not lucky, it is 6 years. And 
if we don't do something, it is going to be 10 years, and that 
is just not right and we know it.
    So our united effort here is to try to get it right. And 
our commitment to everyone on the Committee, to everyone in the 
room, is to work with you and the VA so that we not just pass 
legislation in this body, in the Senate, get it signed, but 
then get it implemented, in a way that really works. We are not 
here for headlines. We are here to serve veterans.
    And I want to thank everyone at the table, thank the 
Chairman, the Ranking Member, my distinguished colleague and 
friend, the Chairman of the Subcommittee, and Ms. Titus for her 
extraordinary work and getting us to this place today.
    Thank you all. I look forward to rolling up our sleeves, 
and getting to work, and getting it done. Thank you.
    The Chairman. I thank the gentlelady for yielding.
    And I will say that if you are unlucky, as has happened at, 
to least a close friend of mine, you die before the appeal gets 
heard. And quite frankly, I think this is one of the most 
important pieces of legislation, certainly at the VA that I 
have dealt with since I have been in the Congress, 8 years I've 
been here.
    And the reason is because we have veterans out there 
waiting literally until some of them die before we get this 
resolved. And this is not a perfect bill, but it is certainly 
one that effects every single congressional-I know in my own 
congressional office I spend more time probably with this than 
with anything else we do and I think all of us do. And to 
streamline this and make it easier and better is absolutely 
what we should be doing.
    And at this point, I would like to introduce our first 
witness. It is one of or colleagues, obviously who has been on 
the Committee for many years, who has now moved to a different 
Committee. But Ms. Titus thank you very much for your passion 
about this. Now I recognize you for 5 minutes.

               STATEMENT OF HONORABLE DINA TITUS

    Ms. Titus. Well, Thank you very much, Mr. Chairman, Ranking 
Member Walz.
    It is an honor for me to be back with you today. I have 
missed serving on this Committee and all of you personally. It 
is a little strange to be on this side of the table though 
instead of that side. But I think this is such an important 
issue I wanted to just come back and commit to you that I am 
still working on this. And however I can be helpful I certainly 
want to.
    This Veterans Appeals Improvement and Modernization Act of 
2017 may be one of the most important things that we do, 
because fixing this outdated appeal system has been one of my 
top priorities since I was the Ranking Member on the Disability 
Assistance an Memorial Affairs Subcommittee.
    When I became the Ranking Member of DAMA in 2013, much of 
the focus at the VA was on the disability claims backlog. It 
had ballooned and it was causing some veterans to wait almost 2 
years before they could get their initial claim decision. After 
the VA and this Committee worked very hard to reduce that 
backlog, it was like squeezing the balloon and the air pops up 
somewhere else. The problem shifted to the appeals process.
    You have heard that over 400,000 veterans are currently in 
that overburdened and overcomplicated system. The average claim 
takes about 3 years to adjudicate and claims that progress on 
to the Board of Veterans' Appeals can continue to languish for 
more than 2000 days. And both of these figures are rising.
    If we continue to delay fixing this problem, I am afraid 
that the wait for our veterans will continue to grow. And by 
2027, we may be telling our constituents, I am sorry, but you 
are likely to have to wait a decade before your appeal can be 
resolved. And I know all of you in this room think that is just 
unacceptable, as do I.
    It is important to keep in mind that the appeals system was 
first developed in 1933 and it was last updated in the late 
1980s, so true reform is long overdue. More than a year ago, 
the VA convened a working group, it consisted of senior VA 
officials, veterans service organizations, and congressional 
staff. And the results of month's long work on that was the 
basis of the legislation you consider today.
    Last year, as you heard, I introduced the VA Appeals 
Modernization Act of 2016, it was passed by the House as part 
of a larger bill, but unfortunately the Senate didn't take it 
up.
    Now I know you all are well versed in the details of the 
new proposed system. And I thank Chairman Bost and Ranking 
Member Esty for continuing to work on this legislation. I know 
that the editions and changes that you have made will just 
continue to move us in the right direction. And I thank you for 
those improvements.
    So I would just encourage this Committee to move as quickly 
as possible to pass this legislation to the floor. Every day 
that we fail to bring real reform to this outdated system means 
that more veterans will be filing appeals in a broken system 
that does not meet their needs.
    So I appreciate many of today's witnesses and the help that 
they have given us to come with the bill that is before you 
today, including the American Legion, which has shared my sense 
of urgency all along. We should pass this bill so that veterans 
are able to choose what is the right path for them, what best 
fits their unique situation as they file their appeals.
    So thank you very much for allowing me to join you today to 
testify on this. And I look forward to continuing to work with 
you. And I am confident that this will get done and we will see 
it go into effect. So thank you very much, Mr. Chairman.
    The Chairman. Thank you for being here. You did say one 
very prophetic thing, unfortunately we have the Senate. You are 
correct about that.
    We will forego a round of questions for Ms. Titus, and any 
questions that anyone may have for our colleague can be 
submitted for the record and you are now excused. Thank you 
very much for being here.
    Our second panel can step up, please. Thank you.
    Thank you all. And joining us for our second panel this 
morning are David C. Spickler, the acting vice Chairman, and 
executive in charge for the Board of Veterans Appeals. Welcome. 
Mr. Spickler is accompanied David McLenachen, who is a director 
of appeals, management center of the Veterans Benefits 
Administration.
    Also with us this morning, are Louis J. Celli, the director 
of national veterans and rehabilitation division of the 
American Legion. Mr. Jim Marszalek, who is the national service 
director for the Disabled American Veterans, and Mr. Ryan 
Gallucci who is director of the National Veterans Service for 
the Veterans of Foreign Wars. Thank you all for being with us 
here with us today.
    And thank you for the many, many hours of work you have 
done on this issue. Your complete written statements will be 
entered into the hearing record.
    And Mr. Spickler, you are recognized for 5 minutes to 
present the Department's testimony.

                 STATEMENT OF DAVID C. SPICKLER

    Mr. Spickler. Good morning, Chairman Roe, Ranking Member 
Walz and Members of the Committee. Thank you for inviting us 
here today to discuss critical reforms needed to improve and 
modernize the VA appeals process.
    The bill we will be discussing is a necessary step to 
transform an appeals process that is failing veterans.
    Joining me today is Dave McLenachen, the director of VBA's 
appeals management office. Dave and I both share Secretary 
Shulkin and Under Secretary Murphy's commitment to getting 
appeals reform done this year. The Secretary has made it clear 
that appeals modernization is one of the Department's top 
priorities. Thanks to the Committee's efforts, I am confident 
that working together we can achieve appeals reform for 
veterans.
    The current appeals process is confusing, inefficient, 
takes too long and provides veterans with no real choice. In 
the current process appeals have no defined endpoint. VA 
adjudicators and veterans are instead engaged in a continuous 
loop of evidence gathering and readjudication of the same 
appeal. The cycle of evidence gathering and readjudication 
means that appeals often churn between VBA and the Board to 
meet legal requirements with little to no benefit flowing to 
the veteran.
    The multiple layers of adjudication built into the current 
appeals process exacerbates delays even more. Without 
significant legislative reform to modernize the appeals 
process, wait times and the cost to taxpayers will only 
increase. The good news is that we have a better alternative 
for veterans. The new framework contained in the draft bill 
would provide veterans with an appeals process that is timely, 
transparent and fair.
    The new process is not just a VA idea. It is the product of 
over a year of collaboration between the board, VBA, VSOs, the 
private bar, and other stakeholders. The new appeals process we 
developed is simpler and easier for veterans to understand. It 
provides a streamlined process focused on earlier resolution of 
appeals and generating long-term savings for taxpayers.
    The new process also empowers veterans by providing them 
with the ability to tailor the process to meet their individual 
needs. Veterans in the new process can pursue one of three 
different lanes.
    One lane would be for review of the same evidence by a 
higher level adjudicator at the regional office. One lane would 
be for submitting new and relevant evidence with a supplemental 
claim at the regional office, and one lane would allow veterans 
to take their appeal directly to the board, eliminating the 
duplicative steps currently required by statute to receive 
board review.
    The robust effective date protections built into the draft 
bill enhanced veterans rights and ensure that veterans and 
their advocates cannot make a wrong turn in making their 
selection. The new process also preserves the duty to assist 
but focuses it in the supplemental claim lane, while at the 
same time creating a mechanism for duty to assist errors to be 
corrected in the other lanes.
    The draft bill additionally provides opt-in provisions, 
which would allow more veterans with legacy appeals to take 
advantage of the new modernized process.
    While VA strongly supports the essential features of the 
draft bill, we do have some concerns with the proposed 
legislation as currently drafted. VA strongly opposes the 
language that extends effective date provisions to supplemental 
claims filed within 1 year of a decision of the Federal courts.
    These provisions go against an essential construct of the 
new process which encourages veterans to stay within VA to 
achieve the earliest resolution possible. It would be 
unfortunate to eliminate sources of unnecessary churn in VA 
only to create new incentives for endless appeal in the Federal 
courts.
    The VA also believes that the proposed certification of 
readiness provision is problematic. Given the annual nature of 
the budget cycle, it would be impossible for the Secretary to 
predict the level of resources provided by appropriations 
actions in future years. Moreover, the certification provisions 
are incompatible with the provisions that allow veterans to opt 
into the new system 1 year before the effective date of the 
law. We are committed to working with the Committee to reserve 
this conflict.
    The VA also opposes some of the notice in reporting 
requirements contained in the bill, although we look forward to 
working with the Committee to better shape these provisions in 
a manner that achieves adequate protection for veterans, and 
robust information for congressional oversight, while at the 
same time uses administrative resources wisely. We appreciate 
any opportunity to work with Congress to further refine this 
legislation.
    Mr. Chairman, this concludes my statement. We again thank 
you and the Committee Members for your hard work on appeals 
reform. It is critical that we get appeals reform done this 
year. We would be pleased to respond to any questions that you 
or the other Members may have.

    [The prepared statement of David Spickler appears in the 
Appendix]

    The Chairman. I thank you Mr. Spickler.
    Mr. Celli, you can recognized for 5 minutes, representing 
the American Legion.

                STATEMENT OF LOUIS J. CELLI, JR.

    Ms. Celli. I have been testifying from witness tables just 
like this for over 10 years. And in all that time, I don't I've 
ever seen a perfect piece of legislation make it all the way 
through the legislative process and get signed into law. No 
bill is perfect.
    Chairman Roe, Ranking Member Walz, and distinguished, 
dedicated defenders of veterans, who proudly serve on this 
Committee.
    On behalf of the Commander Schmidt, the national commander 
of the largest veterans service organization in the United 
States of America representing more than 2.2 dues paying 
members, and combined with our American Legion family, whose 
numbers exceed 3.5 million voters, living in every district in 
America, it is my duty, honor to present the American Legion's 
position on how to improve the Department of Veterans Affairs 
claims and appeals process.
    All progressive legislation is an experiment. As a 
government, as a community, we take calculated risks and do our 
best to prepare for the unintended consequences. This 
legislation is no different, it is not perfect and it never 
will be. And that is okay. The American Legion applauds this 
Committee for having the restraint and vision to craft the 
legislation loosely enough to give the VA enough flexibility to 
build a new program as needed. Bravo.
    It is impossible to successfully legislate every detail of 
a program, that is what regulations are for. Good legislation 
gives the government the necessary tools and guidance to 
perform the task and then charges them with carrying out the 
intent of Congress.
    In your opening statements you all talked about what this 
legislation will do and why it is important. No need for me to 
repeat that again. Our value to you isn't telling you what you 
already now, it is being able to provide you with the 
grassroots intelligence you can't get from your offices here on 
Capitol Hill.
    Feedback from the veterans, their families and the 
advocates who work with them every day, that is how we serve 
you and government and that is how we will work together to 
ensure this new program, appeals modernization, will be a 
success.
    The American Legion has been assisting veterans access 
their benefits before there even was a Department of Veterans 
Affairs. And as we prepare to celebrate our centennial 
anniversary, we also stand prepared to continue to assist our 
veterans for the next 100 years and the 100 years after that.
    Together with our colleagues here at this table, our 
veteran service partners, and the employees who serve at VA, we 
will do our best to ensure this program is a vast improvement 
over what we currently have and hopefully will one day see an 
end to the multiyears' long purgatory of backlog appeals and 
claims waiting to be serviced.
    Chairman Roe, Ranking Member Walz, and Members of this 
Committee, your staffs worked hard for you and on behalf of 
veterans every day. Now while we don't always agree, it is a 
pleasure working with them and I sincerely hope that they take 
great pride in this day as we continue to work together to send 
appeals modernization to the President's desk for signature.
    On behalf of the American Legion, one of the founding 
architects who participated in helping design this program, I 
will be happy to try to answer any questions that you may have.

    [The prepared statement of Louis Celli, Jr. appears in the 
Appendix]

    The Chairman. Thank you very much, Mr. Celli, your comments 
are most appreciated.
    Mr. Marszalek, you are now recognized for 5 minutes.

                   STATEMENT OF JIM MARSZALEK

    Mr. Marszalek. Mr. Chairman, and Members of the Committee, 
thank you for inviting DAV to testify today on appeals reform 
legislation.
    As national service director for DAV, I want to thank you, 
Mr. Chairman, as well as Ranking Member Walz, for making 
appeals modernization a priority for the 115th Congress.
    I also want to thank Subcommittee Chairman Bost, Ranking 
Member Esty and Congresswoman Titus for their leadership on 
this issue.
    Mr. Chairman, DAV operates the Nation's largest claims and 
appeals assistance program, providing free representation to 
more than 1 million veterans, or their survivors. We are fully 
invested in reforming and modernizing the appeals system. And 
we fully support this draft legislation.
    The new appeals framework developed last year by VA, the 
board, VSOs and other stakeholders would protect due process 
rights of veterans while offering multiple options for them to 
receive their decisions in a judicious manner.
    The critical core of this new system provides veterans with 
multiple options to challenge unfavorable decisions, introduce 
new evidence that both VBA and the board, and protect their 
earliest effective dates without having to be locked into the 
current long and difficult appeals process.
    The central dynamic of this new system is that a veteran 
who receives an unfavorable decision from one option, may then 
pursue one of the other options. And if they continuously 
pursue a new option, within 1 year of the last decision they 
will be able to preserve their earliest effective date.
    The draft bill embodies the appeals modernization framework 
agreed to by DAV and the rest of the workgroup last year and in 
addition includes some significant improvements. The 
legislation would enhance effective date protections for 
claimants that choose to appeal board decisions to the court. 
This is a fair and equitable approach to provide claimants with 
the option to exercise their full appellate rights without 
having to potentially jeopardize their effective dates.
    The draft legislation requires the Secretary to submit a 
detailed transition implementation plan requiring stakeholder 
consultation and then requires the Secretary to certify the new 
system is ready before the transition could begin.
    DAV further recommends creating a stakeholder transition 
implementation advisory committee to strengthen stakeholder 
engagement with VBA and the board. The draft legislation also 
contains detailed reporting requirements by VA with oversight 
by GAO. DAV recommends that all VA plans metrics and reports be 
made immediately available to the public.
    My written testimony has a number of recommendations to 
strengthen the legislation. I will comment on a few key 
recommendations.
    First, we believe the terminology in the draft bill used to 
distinguish the two board dockets, compounded by separate 
evidentiary time periods associated with each, could cause 
confusion and add unnecessary complexity to the board's 
processing of appeals.
    The first docket is the ``non-hearing docket'' for appeals 
without new evidence and without hearings. The second docket 
would be the ``hearing'' docket for claimants who want a 
hearing or will submit new evidence. However, claimants who 
choose a ``hearing docket'' must then elect whether to request 
a hearing on the hearing docket or to request no hearing on the 
hearing docket.
    DAV recommends new terminology to distinguish these two 
dockets such as using terms ``new evidence'' and ``no new 
evidence'' rather than ``hearing'' and ``no hearing'' because a 
hearing itself is also evidence.
    We also recommend the time periods when evidence could be 
submitted to the board be streamlined as follows. For the 
``hearing'' or ``new evidence docket'', the board should accept 
evidence with the filing of the NOD and continue to accept it 
for an additional 90 days if no hearing is elected, or until 90 
days after a hearing when a hearing is elected. In addition, we 
recommend the board consider creating a third docket for those 
appeals that will include new evidence but do not request a 
hearing. With just two dockets, veterans who submit new 
evidence but do not request a hearing could be forced to wait 
months or even years waiting on the same docket with veterans 
who request a hearing.
    Mr. Chairman, the draft legislation being considered today 
represents a true collaboration between VA, VSOs other key 
stakeholders, and Congress. With the additional improvements 
recommended by DAV and others, they could provide veterans with 
quicker, accurate outcomes while fully protecting their due 
process rights.
    We remain committed to working with you, VA, and other 
stakeholders to resolve any remaining issues and swiftly 
passing and enacting comprehensive repeals reform early this 
year.
    That concludes my testimony. I will be happy to answer any 
questions that you or Members of the Committee may have. Thank 
you.

    [The prepared statement of Jim Marszalek appears in the 
Appendix]

    The Chairman. Thank you, Mr. Marszalek. I think some of 
your suggestions have already been accepted. Thank you for 
that.
    Mr. Ryan Gallucci, you are now recognized for 5 minutes to 
present your testimony for the VFW.

                 STATEMENT OF RYAN M. GALLUCCI

    Mr. Gallucci. Thank you, Mr. Chairman. Chairman Roe, 
Ranking Member Walz and Members of the Committee, on behalf of 
the VFW I want to thank you for the opportunity to testify 
today on appeals reform.
    The VFW's 1,900 accredited representatives around the world 
represent nearly 500,000 veterans and their VA benefit claims. 
This legislation will have a tremendous impact on all the men 
and women our professional advocates serve every day. The VFW 
supports the Committee's efforts to perform and modernize the 
VA appeals process to better serve of the needs of veterans.
    Over the years, the process has morphed into a bureaucratic 
Leviathan that most veterans cannot understand. And for 
veterans who disagree with their rating decisions, they have no 
way to determine whether choosing to appeal is a reasonable 
course of action, and if they choose to appeal exercising their 
due process rights can take up to half a decade. This does not 
sound like a veteran centric, nonadversarial process.
    The goal of this legislation is to once again build a 
process that focuses on veterans, one that is easy to navigate 
and protects veterans rights. Last year, the VFW was one of 
many stakeholders convened to discuss modernizing the process. 
And we believe this legislation will build a framework for 
adjudication that the VFW strongly supports.
    However, we have several recommendations for the Committee 
to consider to ensure that the new framework satisfies our 
shared intent. Each of these items is outlined in our prepared 
testimony. For the balance of my time, I would like to focus on 
why the new framework is beneficial to veterans, why 
protections for clear and unmistakable errors or queue must be 
preserved, and our concerns on legacy appeals.
    The new framework will do three things to improve the 
claims process. First, it will improve notifications to ensure 
veterans can understand their ratings. Second, it will offer 
more recourse at the local level. Third, it will lower the 
evidentiary threshold for supplemental actions. Each of these 
improvements makes the process more veteran friendly.
    Inadequate notifications have been a fundamental failure of 
the current process leaving veterans with no reasonable way to 
understand how VA arrived at its decision, and no way to 
conclude whether or not to appeal. Improved notifications 
empower veterans to better navigate their benefits, cutting 
down on appeals that result from misunderstandings.
    Improved notifications also helped to bolster the new lanes 
for adjudications, specifically supplemental claims and higher 
level review. The VFW believes the supplemental claims lane is 
the most critical option in the framework. This lane allows 
veterans to seek a new rating decision dating back to their 
original effective date, at the lowest possible level simply by 
submitting new and relevant evidence.
    For matters that could be best handled locally in a 
nonadversarial manner, this cuts years off the process. Plus 
accredited advocates now have a new tool to help resolve claims 
at the earliest possible time, ensuring that veterans receive 
every benefit they have earned with the earliest possible 
effective date.
    Prolonging a veterans claim is bad all around. It puts 
unnecessary stress on the veteran and it makes VA look 
careless. At a time when more veterans need access to benefits, 
the VFW supports offering more nonadversarial recourse locally 
to arrive at quality rating decisions. This is what our veteran 
clients expect and why we support this new framework.
    As with any systemic change, VFW seeks to avoid unintended 
consequences. One current protection in the system is the 
ability to revise queue decisions. While veterans usually must 
take a remedial action within one year of a rating decision to 
preserve an effective date, decisions based on queue can be 
revised back to the original date at any time. The VFW is 
concerned that the bill as written creates a potential conflict 
of law as it does not specify the veterans can still submit a 
queue motion past 1 year.
    The VFW must have assurance that veterans can still seek 
queue revisions, otherwise the VFW believes the entire 
framework can fail. Since the first discussions on appeals 
reform, the VFW has been clear that any changes to the system 
must be coupled with aggressive initiatives to adjudicate 
legacy appeals. The VFW asked for off ramps to allow veterans 
to opt-in to the new framework. And we thank the Committee for 
including this in the legislation.
    However, we have a technical concern about fully developed 
appeals. As written it seems the new process would not allow 
legacy appellants to off ramp into this system, and the VFW 
would recommend clarifying this option otherwise the provision 
does not satisfied its intent.
    That being said, the issue of resourcing for VA remains a 
persistent problem. BVA and VBA must have the resources to 
adjudicate both legacy appeals and supplemental claim actions 
in the new framework. My predecessor at the VFW, Jerry Manar 
used to say, that VA liked to play whack-a-mole with its 
pending workload. Every time the VA faces a crisis, the VA 
reallocates its resources to focus solely on the crisis, 
neglecting other work. This only breeds further crises. The VA 
must have the resources to manage its workload. Otherwise, we 
will find ourselves back here discussing another backlog.
    The VFW is encouraged by this legislation and strongly 
supports efforts to build a more veteran-centric appeals 
process. For years we have been stuck in the same place, afraid 
to act out of fear we will make the wrong decision. But if we 
stay put, the situation will never improve, that is 
unacceptable. It is time to improve this process.
    We look forward to working with the Committee to advance 
these critical reforms. And I am happy to answer any questions 
that you may have. Thank you.

    [The prepared statement of Ryan Gallucci appears in the 
Appendix]

    The Chairman. I thank the gentleman for yielding. And thank 
all of you all for being on time. I will yield myself 5 
minutes.
    And I want to start by asking Mr. Spickler, you mentioned 
in your testimony that there were some concerns that you had I 
think three of them. I read you testimony last night. Before we 
get started on that, though, just tell me if the VA should 
support this draft legislation as is without any changes.
    Mr. Spickler. Well, we generally support the legislation. I 
mean, we have noted the concerns. We have tried to articulate 
the concerns that we have with the legislation. We are hopeful 
to work with the Committee on some of these concerns and we are 
happy to work with you.
    The Chairman. I thank you for that. I am going to just 
start with Mr. Celli and go around would you support this 
legislation or would your organization?
    Mr. Celli. As we recognized in our testimony, the 
legislation is not perfect but we absolutely support it 100 
percent.
    The Chairman. Thank you very much. Mr. Marszalek?
    Mr. Marszalek. DAV does as well. Again, the recommendations 
we made will only strengthen it, but yes, absolutely, we do 
support it.
    The Chairman. And I think those have already been worked 
in. And Mr. Gallucci some of your comments have been also 
worked into the draft legislation too.
    Mr. Gallucci. Absolutely, Mr. Chairman. I just want to echo 
my colleagues Lou and Jim, that we absolutely support the 
framework outlined in this legislation.
    One of the asks that we had when the Subcommittee first 
approached us earlier this year is was repeals reform still a 
priority for us. Absolutely, unequivocally. Even in discussions 
among our VSO partners what we determined in looking at this 
framework is that it results-like I said I think a number of 
times in my remarks, it results in favorable decisions, 
protects veterans rights at the lowest possible level and we 
are proud to support it.
    The Chairman. I am delighted to hear this. And certainly I 
think from our standpoint on the Committee, it gives us some 
direction about where we need to go. And as a matter of fact 
for the whole Congress where we need to go with this. I very 
much appreciate your forthright answer, no beating around the 
bush.
    I think that concerns, and I guess the VA can answer this, 
the VA's concerns allowing veterans to retain their effective 
date after an adverse decision at the court of appeals for 
veterans claims. Why is that a problem?
    Mr. Spickler. Well, as we have noted in the statement I 
think the reason why we made the statement that we did was it 
goes against the original design that was prepared over a year 
ago with all of the stakeholders. And it, as a matter of 
policy, the principle was to try to achieve early resolution, 
the earliest resolution possible. And we felt that in allowing 
veterans to stay within the VA or create a situation where 
veterans could stay within VA and file supplemental claims 
after an adverse determination within the agency, that that 
would result in the earliest resolution of the claim possible.
    I think the concern we have is that by affording effective 
date protection after a court decision you create the 
possibility of elongating the process in which veterans could 
go appeal then to the court and then still end up coming back 
to the agency and filing a supplemental claim after a much 
longer process.
    Again, it is just-it is our concern and our comment. We are 
more than happy to continue a dialogue on this and work with 
you with the Committee on this, but that is--
    The Chairman. Would it be a deal breaker?
    Mr. Spickler [continued]. I am sorry?
    The Chairman. Would it be a deal breaker? In other words, 
up here we always have something you stick one more thing in 
there and we say, I just can't support that because of that-did 
it rise to that level?
    Mr. Spickler. I wouldn't want to say that anything about 
the legislation is a deal breaker being we are committed. The 
Secretary is committed to trying to achieve appeals reform now. 
As I have stated, we have articulated our position on the 
matter. But no, I would not say it is a deal breaker.
    The Chairman. Thank you. I can't think of anything we could 
do on this bill that would make this process any longer. Quite 
frankly, I think it is going to shorten the process. Just very 
quickly because I don't have much time, just go around, if you 
all could answer the same question I asked.
    Mr. Celli. Chairman, the veterans community has been a 
strong advocate of judicial review for a great number of years. 
No one was happier than the veteran community when we were able 
to establish the court. We don't want to see anything that 
deters a veteran from using the court. Our only concern early 
on in this process was the score the CBO would come back with 
would blow it out of the water and it would be unattainable 
goal at that point.
    So provided that the score is within reason and we can 
still move this legislation forward, American Legion is never 
going to be on record that calls for less protections for 
veterans.
    The Chairman. Thank you.
    Mr. Marszalek. I would agree, Mr. Chairman. It is good for 
veterans. It gives them another opportunity to go to that level 
without any harm, so DAV is supportive.
    Mr. Gallucci. Well, thank you, Mr. Chairman. I can't add 
much more than what my colleagues have already said. The VFW is 
certainly supportive of that as well. And as Lou said, making 
sure that veterans have due process protections all throughout 
the system.
    The Chairman. My time has expired. Mr. Walz, you are 
recognized.
    Mr. Walz. Well, thank you, Chairman. And thank you all for 
your testimony. I maybe segue a little bit from where the 
Chairman is and I am sensitive to his concerns on red lines. We 
know what happens when we get into those things, or things 
don't get acceptable. It can derail legislation that we all 
want to get. So I appreciate this with the understanding that 
we are still always trying to work to improve. I think you all 
have articulated that he very well.
    I do want to go back to one of your concerns, Mr. Spickler, 
in here because this comes up with anything we do. In your 
testimony you expressed serious concern about requiring the 
Secretary to certify he has the resources necessary to timely 
process appeals. Is there an alternative or can you explain 
your thinking on that? Because all too often all of us in this 
room knows what happens if he has to come and ask for money or 
sign off.
    Mr. Spickler. I will try and explain our thinking. The 
concern-the idea of a certification-that is not really the 
concern. I mean, it is not necessarily that-I guess it is what 
the Secretary has to certify to. Our concern is that because of 
the opt-in provision, allowing veterans to opt-in to the 
legislation 1 year before an enacted, before enactment, which 
was added-I think we all agreed that that was a good provision 
as a way of allowing more veterans to opt-in to the new process 
and therefore take them out of the legacy appeal process.
    So the concern is that that is kind of based on having a 
fixed date for when the law is going to take effect, because we 
have notice requirements that have to go out, informing 
veterans of their opportunity to opt-in. And our concern is 
that not knowing when the Secretary may be able to certify that 
the Department is ready, has the resources, and timely able to 
address, kind of puts that date in depth, creates ambiguity as 
to the timeframe.
    And the certification in part has to do with-is going to be 
dependent upon the appropriations cycles in future years and 
potentially puts the Secretary in a difficult position of 
certify now, as to what that readiness is going to be in future 
years, which is going to be dependent upon the budget cycle.
    So our concern is really just how it impacts that 
certification and the lack of certainty, impacts on the 
effective date of the law and how the opt-in provisions work. 
We don't want a situation where the opt-in provision is 
diluted, if you will, by a potentially sliding enactment date. 
So that is the concern.
    Mr. Walz. That is helpful.
    Mr. Spickler. As to, are there other things we could work 
out? We would hope to be able to come up with maybe something 
that satisfies both the concern in the draft legislation about 
the Secretary certifying as to implementation, but also gives 
us some protection for those opt-in provisions.
    Mr. Walz. Very good. That helps us on that. To the VSOs, 
just for me again, and I know we are kind of going down the 
line, I think there is a real-trying to build this coalition on 
this. Do you, each of you believe that veterans rights are 
preserved in each of the three lanes that have being proposed? 
I know we are being a little redundant but I think it is 
important for us to hear that.
    Mr. Gallucci. We absolutely believe that and that was the 
foundation of the framework. And just real quick to Mr. 
Spickler's comments, you know, we see the certification as 
enhanced partnership between Congress and the Department. And 
in our view, there was going to be no one who would be better 
qualified than the Department to testify to this body on when 
they would be ready to launch on this program.
    Mr. Marszalek. Yes, that was one of the very first things 
we did in the work group was talk about why veterans appeal. It 
is primarily about protecting their effective date. So that was 
the first thing we took off the table. Anything we create, we 
have to take that out of the equation to make sure the veterans 
have options and are protected no matter what they chose.
    So with a representative or without a representative, they 
can't be harmed in any lane that they go to. So it is 
definitely great.
    Mr. Gallucci. I would agree with my colleagues from DAV and 
the American legion. The way the VFW looks at this as I said in 
my remarks today is that prolonging a veteran's claim is bad 
for everyone. And that is what we do with the current process. 
If a veteran doesn't understand their decision, many times they 
are driven to appeal and then they are caught up in a year's 
long bureaucratic quagmire.
    I have a close friend who reached out regarding his claim 
very recently, it had been so long that VA contacted him he 
didn't remember exactly what he appealed. That is absurd. 
Veterans should have recourse at the local level. And many 
times that is where our organizations provide advocacy. We 
provide it at the local level, at the community level. It gives 
veterans options to pursue what they believe is fair recourse 
and to do it in a timely manner and do it locally.
    Mr. Walz. Well, as a veteran and member of your 
organizations I am glad you are there for us, so thank you.
    The Chairman. Thank you, Mr. Walz. Chairman Bost you are 
recognized for 5 minutes.
    Mr. Bost. Thank you, Mr. Chairman.
    An important part of this legislation is something that 
wasn't included last year, and now is, is the fact that a 
process of trying to deal with backlog.
    Mr. Spickler, if you could tell me how do you plan to 
handle the legacy appeals, and then the backlog, and after the 
reform bill is already put in place. What do you see that will 
come to pass?
    Mr. Spickler. Well, obviously, we are-the resources we have 
will have to be devoted to both the new appeals, as well as the 
legacy appeals. And we all know the importance of dealing with 
the legacy appeals. So the thinking would be we would certainly 
devote resources to make sure that we addressed all new appeals 
in the new process, in a timely manner, which will be a more 
efficient adjudication process than the current process.
    And then the remaining resources that we have will be 
devoted to working with the legacy appeals and making sure that 
we make as strong inroads as we can on reducing that inventory 
of legacy appeals over time.
    Mr. Bost. Do you have like a rough guess of which ones are 
so difficult that they are going to be difficult to move that 
backlog on, and which ones we can get to quickly so that we 
know what we are trying to do to get as many handled as quick 
as possible? Is there any way to try to estimate that?
    Mr. Spickler. Well, I am not sure we can estimate based on 
the difficulty. I mean, we would know how many legacy appeals 
there are versus the new appeals, if you will. So we would know 
what resources we need to devote to maintaining timely 
dispositions of the new appeals and then devote the remaining 
resources to the legacy appeals.
    And I would invite my colleague Mr. McLenachen if you have 
additional comments you would like to make on that as well.
    Mr. McLenachen. So Chairman Bost, the options that we 
designed would have a large impact on that. A lot of our 
resolution of appeals occurs in VBA, before it even gets to the 
board. So of the 11 to 12 percent that appeal, only 4 to 
percent end up going to the board. So that is a lot of 
resolution that occurs at the VBA level.
    And we have about 220,000 notices of disagreement pending. 
When we get to the point where we process those NODs, they will 
have an opportunity to opt-in to the new process. So a lot of 
that opt-in is going to be occurring at that point where we 
have most of our inventory. So of the 465,000 that are pending, 
roughly half of those will have the ability to opt-in fairly 
quickly.
    Just to answer your question about the resource allocation. 
In any modeling that we have done, it has roughly been about 
one-third of our resources would be on the new process, 
operating it timely and about two-thirds. As David said, the 
rest of our resources that would be allocated to legacy 
appeals. And that would be about two-thirds it ever our appeals 
resources.
    In addition to that, the intent is that we would figure out 
exactly what additional resources we might need and work that 
in the budget process every year.
    Mr. Bost. Okay. My next question I am going to go to the 
VSOs, and if you can-one of the important things we did was we 
wanted to make sure you are working in conjunction with the VA. 
Can you explain why you believe it is important for the 
Secretary to collaborate with the VSOs before certifying the 
Department is ready to go through this process?
    Ms. Celli. You want to go first, Ron?
    Mr. Gallucci. All right. Thank you, Lou. No, we agree with 
that provision. We welcome its inclusion in the draft 
legislation. And we think it is an important partnership that 
we have with the VA. We value the relationship that we have 
with VA to provide advocacy for the veterans who seek our 
assistance. In many ways we make sure that veterans understand 
the process up front. And part of our responsibility in 
deploying the new framework is going to be explaining the new 
framework to veterans and what their rights are under the 
system, how to take advantage of some of the off ramps that are 
available to them. Or which lane would satisfy their intent in 
seeking a supplemental claim action.
    So I think-and again you have heard from each of us, the 
scope of our operations. I mean we represent veterans around 
the world and in communities. It is just critical that we have 
that input and implementation of the new framework.
    Mr. Marszalek. I would only add that VSOs have people in 
the field all over the place and they are giving us feedback 
constantly. So with that feedback and working alongside VA, we 
can say, hey, this is what we are hearing, this is what we are 
seeing. That is important. And from day 1 in the work group we 
were together.
    In the past, we were often an afterthought. VA would 
develop something alone and we would be sometimes be 
disagreeing with everything that they were saying. We don't 
want that process anymore. We want to work together and develop 
something that is good for veterans all around. So it is very, 
very important that we continue that partnership all the way 
through the entire process.
    Mr. Celli. I agree with my colleagues.
    Mr. Bost. My time has expired.
    The Chairman. The gentleman's time has expired.
    Mr. Takano you are recognized for 5 minutes.
    Mr. Takano. Thank you, Mr. Chairman. This is a question for 
the veterans service organizations. There is a strong 
recommendation in the March GAO report, that Congress require 
proposed reforms to be subject to a pilot test. Regardless of 
whether we mandate it or make it discretionary, how do you 
organizations feel about the pilot the GAO recommends?
    Mr. Celli. Yes, so going back to the previous question that 
Mr. Spickler answered from Chairman Bost, I think it is well 
addressed in this new addition-this new revision of the bill. 
And what it does is it gives the Secretary the opportunity to 
introduce this as the Secretary sees that he is ready to do 
that. And he will do that with the consultation of VBA and BVA. 
And I think those concerns are largely answered.
    Mr. Marszalek. And I would add to that that it adds a layer 
of complexity that is really unnecessary in DAV's opinion. 
Considering how cases are processed today all over the country 
with the national work queue--they are going here, they are 
going there. So doing a phase in or a pilot is very difficult 
to do? So, if only California is participating, they could be 
processing claims from 12 different States. So now employees 
are doing two different types of work as well. So we feel it 
just adds an unnecessary layer of complexity that they don't 
need at this point.
    Mr. Takano. Great. Go ahead.
    Mr. Gallucci. And I would reiterate Jim's point about the 
practicality. But in addition to that, not only do you have the 
national work que which Chairman Bost and Ranking Member Esty 
heard us talk about just a couple of months ago, the new work 
environment the VA is implementing, but in many ways it would 
be inequitable for appellants.
    We are going to tell just a certain group of appellants 
based on their geography or where their claim ends up? No, you 
are allowed to go into this new, more favorable system with 
more protections. But I am sorry to the rest of you, you are 
just going to have to wait until we decide whether or not this 
works.
    We think the framework that we have now is sufficient to 
move forward and give veterans a better option.
    Mr. Takano. Well, thank you. I think I will just-I got the 
sense from all of you where you are. And so I am not going to 
ask the VA to really comment on that.
    Under the a new modernized system, a veteran who want to 
submit only evidence to BVA, and this question is for the VA, 
but does not have a hearing, that veteran is required to wait 
in the hearing docket. There are currently over 60,000 pending 
hearing requests, a 5 to 6 year wait in the current system. Why 
would VA force those veterans onto the hearing docket?
    Mr. Spickler. So could I ask you, sir, to repeat the 
question? So the question is why-if you would please repeat it.
    Mr. Takano. Under the new modernized system, a veteran who 
wants to submit only evidence to the VA to the BVA, but not 
have a hearing, that veteran is required to wait in the hearing 
docket. There are currently over 60,000 pending hearing 
requests, meaning a 5 to 6 year wait in the current system. Why 
would the VA require that those veterans-force those veterans 
onto the hearing docket?
    Mr. Spickler. Well, first of all, I don't think they would 
have to wait. I mean, they would be in that docket, but they 
wouldn't necessarily-if they are not having a hearing, they 
really would not have to wait behind veterans who are having a 
hearing.
    So that docket could be administered so that veterans who 
are only submitting additional evidence, but not having a 
hearing, could have their appeals adjudicated without 
consideration to veterans who are awaiting hearings.
    Mr. Takano. Thank you. Well, how does the VA plan to 
resolve the backlog of hearing requests in the legacy system 
while implementing the new system?
    Mr. Spickler. Well, I guess I would say the hearings-I 
mean, the board is going to have the hearings, whether the new 
system is implemented or not. I mean, the hearings-for one 
thing, until we get a better handle on a more efficient 
processing of appeals generally, holding hearings has limited 
utility if we hold hearings and then a veteran's appeal still 
isn't decided for some period of time after they have a 
hearing.
    So we will-the problem of getting to the hearings is just-I 
mean, that is a matter we will have to address regardless of 
implementation of the new law or not. The implementation of the 
new framework won't necessarily effect those hearings.
    Mr. Takano. Thank you, Mr. Chairman. I yield back.
    The Chairman. I thank the gentleman for yielding. Chairman 
Arrington, you are recognized.
    Mr. Arrington. Thank you, Mr. Chairman. Mr. Spickler and 
Mr.-how do you say your last name?
    Mr. McLenachen. McLenachen.
    Mr. Arrington. How long have you been in this area of the 
VA in terms of the appeals process?
    Mr. McLenachen. In VA 16 years for me. I was deputy Under 
Secretary for disability assistance and I had responsibility 
for this prior to my current job.
    Mr. Arrington. What about you, Mr. Spickler?
    Mr. Spickler. Yeah, I have been with VA 35 years this year, 
all at the Board of Veterans Appeals, and basically all in 
appellate adjudication--
    Mr. Arrington. So we have got 50 years of combined 
experience in this area. Why is it so broken? Why has it taken 
this long to fix it? What tools have you not had? What 
authority have you not had?
    My understanding is you had $200 million in 2013 that was 
given to you guys to fix this problem. What has taken so long? 
What is the problem?
    Mr. Spickler. I would say that the really why we are here 
today and why we are talking about this is that the law and the 
system is antiquated. It is 80 plus years old. It was designed 
and built at a time when the veterans population was much 
smaller.
    The appeals typically filed by veterans were much less 
complicated and involved far fewer issues, and, you know, much 
less complicated issues.
    Mr. Arrington. Give me one tool that you don't have that 
you have needed for 20 years, 35 years, 16 years, to not have a 
backlog of 5 years and to have the wait times that we now are 
trying to deal with.
    I am a new member so this is my 100 days into this and I am 
just-mystified.
    Mr. Spickler. Well, I will say my and I am sure Mr. 
McLenachen might have his own thoughts.
    But I would say basically again why we are here today and 
that is a redesign and new legislative framework for the 
appeals system.
    Mr. Arrington. What is the legal barrier-what is the legal 
barrier-you need Congress to pass a law so that you guys can 
have an efficient appeals process. Give me one specific tool, 
not a broad legal framework. Why do we need Congress to pass a 
law so that you can do your job to serve the veterans? I don't 
understand it.
    I mean, if we have to wait till Congress passes a law to 
manage the VA's business and we have to micromanage it from 
here, I am more discouraged than when I just read about this 
stuff on the outside.
    What is the one tool that you don't have that you need? Not 
a legal framework, nothing broad. Give me one specific thing.
    Mr. McLenachen. We need essentially billions of dollars in 
additional appropriations.
    Mr. Arrington. Of course. We need billions of dollars.
    Mr. McLenachen. So the solution to that is, within the law 
which controls how we process appeals, we are not allowed any 
flexibility that you are suggesting that we have. We don't have 
those tools, because the current appeal process is in statute.
    So what we need is either an extraordinary amount of 
resources or we need to change the law. And that is why we are 
here, because it does not make sense to throw more money at a 
process that is broken.
    Mr. Arrington. Okay.
    It is going take 18 months to stand this up. That is what I 
read. Is that correct?
    Mr. McLenachen. Yes, sir.
    Mr. Arrington. Why is it going to take so long?
    Mr. McLenachen. Because we have to do rulemaking, which is 
probably the longest piece that we have to solve. And that is a 
pretty aggressive schedule, just 18 months for rulemaking.
    Mr. Arrington. Is managing your human capital, is that an 
issue for you guys? Is that a challenge for you guys?
    Mr. McLenachen. Yes. Less so for VBA because our 
adjudicators work both initial claims and appeals--
    Mr. Arrington. One of the things that I am working on is 
reining in union activity. We don't know how many people are 
working on official time. We had a GAO study that said that 
some hundreds are spending 100 percent of their time on union 
activity. You all are aware of that, right?
    The law says that it has to be reasonable, necessary, and 
in the best interest of the public. Do you all think it is 
reasonable and in the best interest of the public for VA 
employees to spend 100 percent of their time on union activity? 
Just yes or no.
    Mr. Spickler. I mean, I certainly agree with you that--
    Mr. Arrington. Just yes or no, please, because I have to 
work down the line. Yes, you do think it is reasonable?
    Mr. Spickler. No, I don't-I agree--
    Mr. Arrington. No.
    Mr. Spickler [continued].-with your position. No.
    Mr. Arrington. Okay. Thank you.
    What about the VSOs? Is it reasonable, necessary, and in 
the best interests, yes or no, for veteran employees, VA 
employees, to spend 100 percent on union activities? Yes or no, 
is it reasonable?
    Mr. Celli. No, especially when they are higher paid 
physicians.
    Mr. Arrington. Okay.
    Yes or no?
    Mr. Marszalek. No.
    Mr. Arrington. Yes or no?
    Mr. Gallucci. Well, no. But for a longer answer, that is 
why we talked in our testimony about the resources that the VA 
would need to be focused on adjudication, not ancillary tasks.
    Mr. Arrington. Thank you for your answers.
    I yield back, Mr. Chairman.
    The Chairman. I thank the gentleman for yielding.
    Ms. Esty, you are recognized for 5 minutes.
    Ms. Esty. Thank you, Mr. Chairman.
    Returning to what we can do constructively to try to 
improve the system, for those of us who are working hard on it, 
first, there are three topics I want to quick try to get 
through in the 5 minutes I have.
    One is on the improved decision notices. And I am really 
glad that you mentioned that, because that really wasn't 
highlighted but, I know, in my district, is one of the most 
critical points of the process. If we have an unlimited flow of 
appeals into the system because people don't understand, we are 
never going to solve this problem, and no amount of money is 
going to deal with it. So a quick comment on that.
    On the duty to assist, because there has been some concern 
about that, and I think it would be helpful to get maybe the VA 
to explain how we are dealing with the duty to assist. It is 
not going away, and I have had a few people reach out, and I 
would like to get on the record on duty to assist.
    And to return to the legacy appeals, so you have a chance 
at the end of the table, on the VA, to think about the 
transparency issues. For our oversight on those legacy appeals, 
how are they going to be tracked and not just reclassified so 
that we don't find we are getting calls in our office and 
suddenly it looks like they are being resolved and they have 
actually just been put in a new queue and the clock has been 
reset? There is going to be a whole lot of trouble if we hear 
that.
    So let's quick start, if we can, on the importance of the 
improved decision notices.
    Mr. Gallucci. Thank you, Ranking Member Esty.
    Improved notifications, I did spend a lot of time talking 
about that, but I think that is also indicative of the anecdote 
that I gave before, the friend who reached out. The letters and 
notifications that he saw in e-Benefits didn't articulate 
anything that he needed to understand the scope of his appeal 
that was pending. That is unreasonable. And that is one of the 
legislative authorities that we are seeking to codify. This has 
been a persistent issue over the years, are veterans armed with 
the information that they need to navigate these benefits.
    I keep going back to it, the rhetoric on this. This is 
supposed to be a nonadversarial process. Veterans are supposed 
to file paperwork and claim a benefit. That is what this is. 
But what we have built is something that becomes adversarial 
very early on and unnecessarily so. If we improve notification 
letters, we cut down on that, veterans understand their rating 
decisions.
    It makes our jobs as advocates easier. We spend a 
preponderance of our time just explaining the scope of a rating 
decision and the evidence that would be required to either 
pursue a higher rating or whether or not it is worth appealing 
a rating decision.
    I can't stress the importance of improved notification 
notices enough. It is transparency, and it arms veterans to 
navigate their own benefits. I can't stress it enough.
    Thank you.
    Ms. Esty. Thank you. Because that is what I am hearing in 
my district, too, from the VSOs, that your job is otherwise 
attempting to demystify this very vague notice. And I think, 
again, for the VA it is going to be important to make sure we 
have the resources to do those notices and to work closely over 
this 18-month period to make sure those notices are really 
meeting the needs of veterans. You shouldn't have to have the 
VSO, and you certainly shouldn't have to hire a lawyer when you 
are a veteran and you are trying to get your disability 
benefits. And if we have to, sometimes we will need to, but it 
shouldn't require that.
    And I hope we get everybody's commitment. I am going to 
assume a show of nodding ``yes,'' we are going to work hard on 
getting these notices right.
    All right. To turn to the VA, can you explain a little bit 
how the duty to assist-I think you are all in agreement, so, on 
the duty to assist, what is happening to that? Because, again, 
we have gotten questions. I know the Chairman and I want to 
make sure all veterans understand it is not going away. Where 
is it going to? Who is going to be satisfying that duty within 
the VA?
    Mr. Spickler. I will start, and then I am sure Mr. 
McLenachen may want to add more to this.
    But, primarily, the duty to assist would be in the 
supplemental claim lane at the Veterans Benefits 
Administration, where a veteran, by filing a supplemental 
claim, is basically saying to VA, ``I want to file this 
supplemental claim. I have additional evidence I would like to 
present to be considered.'' And that is where the duty to 
assist would be focused.
    The higher-level-review lane as well as the appeal-to-the-
Board lane are lanes in which the veteran is primarily seeking 
a direct review, a higher-level review, of the adjudication 
that has already been done. So the focus there is on whether 
there was error in the decision that was made, not so much in 
additional evidence that could be relevant to his or her claim.
    So that is how I would describe it. Dave--
    Mr. McLenachen. Just quickly, I think maybe that is one of 
the problems we made before, was we talked about removing the 
duty to assist. And that is where there was always breakdown 
between us and the VSOs. And that is the breakthrough we had 
here, working together, was we are not removing the duty to 
assist, we are just pulling the process that we have now apart 
and putting the duty to assist where it makes sense.
    So we are not removing the duty to assist. We have 
liberalized effective dates. This design is better for veterans 
than what they have now.
    Ms. Esty. Thank you. I appreciate that.
    I realize my time has expired, but if we can follow up on 
that transparency issue of tracking those legacy claims, 
because I think that is something we all share. We want to make 
sure that is done properly.
    The Chairman. I thank the gentlelady for yielding.
    Dr. Dunn, you are recognized for 5 minutes.
    Mr. Dunn. Thank you, Mr. Chairman.
    So I would like to address my comments to Mr. Spickler and 
Mr. McLenachen.
    So I think we are all concerned about the delays, and we 
are almost waiting for veterans to die through these vague VA 
appeals processes. Is it actually the process, the legal 
structure of the process, that is causing these incredible 
delays in handling those appeals, extreme delays? Is it the 
laws, the way they are written? Is that what I understood you 
to say?
    Mr. Spickler. Yes, it is. I mean, that is the primary 
reason. I mean, the system that is in place today basically 
provides, sort of, continuous evidence submission. For example, 
at the Board of Veterans Appeals, in most instances the Board 
is not really acting as an appellate agency reviewing an 
adjudication--
    Mr. Dunn. Do I understand-because we are all on the clock 
here-do I understand, then, there is basically no end to the 
appeal? The appeal goes on and on and on?
    Mr. Spickler. There is no end, plus the record can be 
drastically changed from the time that the original rating 
decision in VBA--
    Mr. Dunn. The medical record could change?
    Mr. Spickler [continued]. Yeah, the medical evidence of 
record could be completely different. And so it just allows for 
this endless churning and endless readjudication.
    Mr. Dunn. Okay. So let's change our-because I think all of 
us have this gestalt that the pace of work at the VA is slow. I 
mean, I am a sergeant, and I have worked at some of the VA 
hospitals in my residency programs, and, you know, it was 
pretty common to have four patients in the morning, four in the 
afternoon. Now, you know, there isn't a private medical 
practice in the country that could survive on that pace.
    I mean, what is the-and is that the pace throughout the VA, 
by the way? That is the first question. Is that the pace of 
production throughout the VA?
    Mr. Spickler. Well, I would say no. At the Board of 
Veterans Appeals, we have rigorous productivity standards for 
our attorneys and judges. And, I mean, it is a-I would say it 
is a fairly fast-paced--
    Mr. Dunn. So what is the explanation for that? I mean, 
honestly, we just have a hard time understanding how so many 
people can produce so little product over such a vast period of 
time.
    Mr. Spickler [continued]. I am sorry? Could--
    Mr. Dunn. The VA, the product, the clinics, you know, they 
are seeing patients, and they are actually not seeing that many 
patients, and they are taking a great deal of time to do that.
    Mr. Spickler. I mean, I am sorry, I can't speak to 
basically what happens in the medical centers--
    Mr. Dunn. But they are the ones generating the medical 
evidence that you just spoke about, right? I mean, they go see 
a doctor, and the medical evidence changed. You said there are 
new findings, medical findings of the patients.
    Mr. McLenachen. Right, so the point is that, when we 
initially process a claim, yes, we send either to a contractor 
or to a VHA examiner to get a medical examination, and that is 
used in adjudicating the claim. We do that now in roughly 125 
days, decide the claim.
    Dave's point is, by the time it gets to the Board 6 years 
later, the disability picture has changed. As I am sure you 
know, it can change drastically by that point. So they may need 
to remand it back VBA to go get another examination. We then 
readjudicate the claim. The appeal process may start over. And, 
again, it may get to the Board 3 years later and, again, the 
disability picture has changed or there is some other medical 
evidence that might be necessary.
    Dave is right, we can't speak to timeliness or how 
productive doctors are in doing treatment. As far as the 
medical examinations that we get, we get them very timely; it 
is just a matter of the disability changing over time and a 
slow process.
    Mr. Dunn. Thank you, Mr. Chairman. I yield back my time.
    The Chairman. I thank the gentleman for yielding.
    Mr. Sablan, you are recognized for 5 minutes.
    Mr. Sablan. Thank you very much, Mr. Chairman.
    Good morning, everyone.
    Mr. Spickler and maybe Mr.-I can't say your last name, so I 
will call you Mr.--
    Mr. Spickler. Spickler.
    Mr. Sablan. No, I don't-Mr. David. And this may sound, you 
know, way off, but here we are trying to settle all these ways 
of making appeals more timely, making them more easier maybe. 
The word ``duty to assist'' that Ms. Esty just brought up, does 
that include an obligation on the part of VA to assist veterans 
to file appeals wherever they are in the United States?
    Mr. Spickler. Does it change the duty?
    Mr. Sablan. No, does it include--
    Mr. Spickler. Does it improve it?
    Mr. Sablan [continued]. Does it mean that VA, the 
Department, has a duty to assist veterans with their appeals 
anywhere they are in the United States?
    Mr. McLenachen. So, if I could take a shot at that, they 
have Veterans Service Organization representatives that help 
them file an appeal, if necessary. But the key--
    Mr. Sablan. Yes, I understand that, but--
    Mr. McLenachen [continued]. - point is, we have a statutory 
duty to assist in VA, whether it is in the initial claim phase 
or it is the appeal phase.
    Mr. Sablan. Okay. All right.
    Mr. McLenachen. So, once the appeal is initiated, we have 
to help them substantiate their claim if we can.
    Mr. Sablan. Okay. I agree.
    Now, see, I come from a place where you don't exist. There 
is no VBA staff, no VBA office. We get visits by VBA 
periodically; they stay for 6 hours. They come to one island 
and not visit the other two islands.
    Can you open this?
    And they are also told that they cannot-when they have 
appeals, they have to travel to either Washington, D.C., which 
is, you know, at least $3,000, or they travel to Guam and use a 
VTC to-there is a VHA office with a VTC, and they are told they 
cannot use that because it is not a VHA matter, it is a 
Veterans Benefits matter.
    My Governor has agreed to assist, to provide resources to 
the VBA, to the State Veterans Affairs office, and we are going 
to ask your office, the VBA, to get these individuals trained 
and probably certified and maybe also have access, if they 
could, to VBA record of the veterans, if possible.
    But is there any way that we could-you know, a round trip 
to Guam, sir, is over $200, and that is a 50-minute flight. And 
for veterans, that is a lot of money. Is there--
    Mr. McLenachen. Sir, can I make a suggestion?
    Mr. Sablan [continued]. Yeah, yeah.
    Mr. McLenachen. Why don't we try to get together sometime 
after the hearing, and we will--
    Mr. Sablan. Yes. That is exactly what I am trying to get 
from you, sir, is a commitment to please come, and we will talk 
about this. Because, in your case, our veterans are certainly, 
if not forgotten, then never known.
    Mr. McLenachen. Dave and I will arrange to come meet with 
you.
    Mr. Sablan. Thank you.
    Mr. McLenachen. He has the hearing issue, and we will see 
if we can find a--
    Mr. Sablan. Yes, sir. Thank you very much.
    Mr. Spickler [continued]. Yeah, if I just may briefly, I do 
believe-speaking for the Board, I do believe we conduct video 
conference hearings, Board video conference hearings, I 
believe, through the Honolulu regional office, and--
    Mr. Sablan. Right. But they--
    Mr. Spickler [continued].-that does serve--
    Mr. Sablan. Yes, sir. So they have to fly to Honolulu then.
    Mr. Spickler. No.
    Mr. Sablan. That is $1,500.
    Mr. Spickler. No. I believe we have set up a satellite-I 
think we better check on this.
    Mr. Sablan. That is a VHA office, and the VHA person in 
there says you can't use that--
    Mr. Spickler. Okay.
    Mr. Sablan [continued].-because it is not a VBA issue.
    And I am actually, for our VSO individuals here, I am 
actually taking a list of all VSOs in the country and taking 
contact information, a summary of what your organization does, 
and I am going to make it available to my over 900 veterans so 
that they are aware that there are organizations that they 
could be eligible for and connect with and become a member of 
and get assistance.
    Because the only VSO we have is the Veterans of Foreign 
Wars. And they are very good; they help where they can. But we 
are new to the United States, and we are, what, 30-something, 
40 years, and we are brand-new to this, but we need the help as 
much as we can.
    And so I have your commitment we will sit down and talk.
    Mr. Spickler. Yes, sir.
    Mr. Sablan. Yeah. Thank you.
    I yield back.
    The Chairman. The gentleman's time has expired.
    Mrs. Radewagen, you are recognized for 5 minutes.
    Mrs. Radewagen. Thank you, Mr. Chairman, Ranking Member.
    Welcome, gentleman.
    My question is for the VSOs.
    Mr. Celli, are you confident that the Department's plan 
will ensure that veterans who cannot opt into the new system or 
choose not to do so receive a decision in a timely manner?
    Mr. Celli. I am sorry, would you repeat the question?
    Mrs. Radewagen. Are you confident that the Department's 
plan will ensure that veterans who cannot opt into the new 
system or choose not to do so receive a decision in a timely 
manner?
    Mr. Celli. I think that if we don't implement the 
framework, they have no other options. And they will have the 
same wait time that they have today at a minimum, and that the 
new framework will start to dwindle down on the backlog.
    And one of the beauties of Chairman Bost's opt-in language 
is that it will allow the VA to adjust as necessary. So if the 
initial decision calls for a certain amount of veterans opting 
in to control the spigot so that it is not too fast and they 
don't get overwhelmed, once they start to handle that and they 
start to understand how the process is going to have its 
benefits and its detriments, then they can open it up even 
further to allow for more legacy appeals to move over.
    Mrs. Radewagen. Mr. Marszalek, would you like to comment on 
that?
    Mr. Marszalek. Sure. Thank you.
    Definitely we believe that veterans are going to continue 
waiting in the legacy system. There is no doubt, right? - Will 
more people coming into the new system make the legacy appeals 
go any faster? I don't believe so. So what we have to do is 
continue, working together and collaborating.
    In regards to the reporting requirements, VA has to share 
that information. How long are appeals taking? Has anything 
improved in the legacy side once they start allowing people 
into the new framework? We have to pay very, very close 
attention to that to make sure veterans are receiving decisions 
that are timely, absolutely.
    Mrs. Radewagen. Mr. Gallucci, would you like to weigh in on 
this issue?
    Mr. Gallucci. Sure. Thank you.
    First of all, I agree with my colleagues. But I think this 
is also one of the reasons why we were so committed to 
including the off-ramps in the legislation. There is no doubt 
that some veterans are going to be stuck in the legacy system, 
but, again, this is why we focused on resourcing as well. The 
last thing we want to see, as my predecessor Jerry often said, 
is VA playing Whac-A-Mole, just taking resources and putting 
them at the new, shiny toy. We want to avoid that at all costs.
    And we think that some of the reporting mechanisms that are 
in the bill help us get to that point. They encourage 
transparency, they encourage consistent reporting. We have a 
little bit of a disagreement about the timeline of some of 
those reporting metrics. Some of them, we don't believe it 
would be practical for them to be monthly, and we spoke about 
that in our written remarks. But we think that it will help 
keep optics on the legacy system and allow us to adjust if we 
see that it is getting worse.
    Mr. Celli. And can I add one more thing real quick? And 
that is, the legacy appeals-veterans will also benefit from the 
new notification letters, and I think that that will help 
considerably.
    The new notification letter, the agreement to institute 
that was the very first agreement that VA had to come to terms 
with with the VSOs before we even started to discuss moving 
forward in an appreciable way. That was a critical component. 
And every veteran will benefit from that at those decision 
points where the off-ramps take place.
    Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
    The Chairman. I thank the gentlelady for yielding.
    Mr. Rutherford, you are recognized for 5 minutes.
    Mr. Rutherford. Thank you, Mr. Chairman.
    And, first, I want to say thank you to the Committee for 
bringing what has been described as, although maybe not 
perfect, certainly a step up from where we are at.
    And one of the issues that I would like to talk about is 
the performance and past performance. And this may have come up 
in the staff work in the Committee and with the VA and the VSOs 
and all of the hard work that you all have done, and I really 
appreciate that.
    Mr. Spickler or Mr. McLenachen, do you know the number of 
appeals that were actually completed by the entire Veterans 
Benefits Administration last year? And when I say 
``completed,'' I mean either denied or granted.
    Mr. McLenachen. So that is one of the problems with the 
current appeal process. We can tell you roughly how many we 
resolved, which was about 138,000, I believe. And ``resolved'' 
means they are out of the process.
    Mr. Rutherford. And how many of those were at the RO level?
    Mr. McLenachen. Well, that was in VBA.
    So there is a small number of resolutions of appeals in the 
current process, and that is because there is a lot of work 
that goes into moving the appeal along in the process without 
resolving it. So that is kind of the problem we are dealing 
with today, is there is no beginning and ending point. An 
appeal can continue for a long period of time and churn in the 
Department. We had some examples of appeals had been pending 
for 20, 25 years and had 30 or 40 decisions between VBA and the 
Board in that 1 appeal.
    Mr. Rutherford. Yeah.
    Mr. McLenachen. So it is really hard to determine what our 
production is, which is what you are looking for, because of 
the process.
    Now, in the new process, each of those lanes is going to 
have a beginning and ending point. You are going to have a 
supplemental claim that is either granted or denied. You are 
going to have a higher-level review. Same thing.
    Mr. Rutherford. Right. And that is one of the things that I 
really like about this bill. And I would encourage you all, as 
you have done already, it sounds: Keep track of those outcomes, 
and that will tell us where the tweaks need to come, whether it 
is letters or, you know, whatever.
    So do you know what number of appeals are granted? Not the 
hearing, but that they are given their benefit.
    Mr. McLenachen. We do have that data, and we could provide 
it to you.
    Mr. Rutherford. Is it 50 percent? I mean, do you have an 
off-the-cuff percentage? Fifty percent? Ten percent?
    Mr. Spickler. The Board tracks dispositions. So, last year, 
for example, the Board decided over 52,000 appeals.
    Now, we track those by allowances, grants, denials, and 
remands. So X number of those 52,000 dispositions included 
remands of one or more issues. I mean, some appeals might have 
6, 10 issues. And some issues might be granted, some might be 
denied, some might be remanded.
    So we do have that information, and if you would like that 
information, we would be happy to--
    Mr. Rutherford. Hold on to that, because I will tell you, I 
think it is going to be very important to be able to go back to 
that data after implementation and actually show the 
improvement or not.
    Mr. Spickler. Right.
    Mr. Rutherford. I am sure it will be.
    But, with that--
    Mr. Spickler. Yes, we definitely plan to continue tracking 
that information.
    Mr. Rutherford. Thank you.
    Mr. Chairman, I yield back.
    The Chairman. I thank the gentleman for yielding.
    Mr. Banks, you are recognized for 5 minutes.
    Mr. Banks. Thank you, Mr. Chairman.
    I want to direct my question to the VSOs.
    So often at home, I hear from my constituents about the 
important work that your organization does to assist my veteran 
constituents in the claims process. And that invaluable aspect 
of what each of your organizations does for our veteran 
population is very much appreciated by myself and, I am sure, 
every other Member of the Committee.
    So I wonder if you can elaborate a little bit on maybe 
concerns that you have or maybe a confidence that you have that 
you can retrain your volunteers back home to be able to assist 
our veteran population. What goes into that process? Again, if 
you have concerns or a level of confidence that that will 
occur, as well as you hope that it will, I would like to hear 
that as well.
    So, Mr. Celli?
    Mr. Celli. Sure. Thank you.
    So the American Legion has about 3,200 representatives 
across the country. Twice a year, we have in-resident training 
where they come in and we update them on any new developments 
that have happened, any relevant case law that may have taken 
place, and we give refresher training as well.
    We are not going to have-I mean, it is going to be a 
challenge to educate everybody on the new process, but it is 
something that we already have a framework to do. So I 
anticipate that we will be able to handle this fairly smoothly 
between us and the attorneys that we have on staff.
    Mr. Banks. And you believe that 18 months is enough time 
for that retraining to occur?
    Mr. Celli. Absolutely.
    Mr. Banks. Okay.
    Mr. Marszalek?
    Mr. Marszalek. We believe the 18 months is plenty of time. 
We have over 260 professional staff members who we train 
through an electronic system. And they are able to see 
everything that we are training, so can we provide that 
training consistently across the board.
    And they go out into their communities and train another 
4,000 advocates that we have across the country and provide 
that exact same training in electronic format, also one-on-one 
training, whatever is necessary.
    So, yes, 18 months is plenty of time for us to get that 
information out.
    Mr. Banks. Okay.
    Mr. Gallucci?
    Mr. Gallucci. So I would agree that the 18 months is a 
reasonable amount of time for us to train to a specific 
standard.
    So the 1,900 accredited advocates with the VFW are 
professional, trained, accredited advocates. They work at VA 
regional offices. They are employees of the Veterans of Foreign 
Wars. They are employees of State governments, county 
governments, what have you. We are required to provide them 
training, per the accreditation agreement that we have with 
Department of Veterans Affairs. To do that, the VFW does four 
in-person training conferences a year and monthly training 
updates to each of our accredited representatives.
    And, also, as these discussions have been going on, we have 
provided consistent feedback and solicited feedback from our 
accredited representatives on what the new framework would look 
like. They are already aware that this should be coming down 
the pike, and they are prepared for what the new process would 
look like.
    Communication is going to be key with our clients; 
certainly agree with you on that. And I think we are ready to 
accept that challenge. And I think our professional advocates 
in the field are more than willing to do this.
    Again, recourse at the local level gives veterans a clear 
rating decision within a year. It gives them the steps to take 
to get a fair rating decision. So I think we are up to the 
challenge.
    Mr. Banks. Very good.
    Again, in closing, it is why I am so proud to be a member 
of at least two of your organizations. That check that I write 
every year to be a member, I know that it goes toward the cause 
that you fulfill and exactly that process of helping so many 
who need the help.
    So, with that, Mr. Chairman, I yield back.
    The Chairman. I thank the gentleman for yielding.
    Mr. Peters, you are recognized for 5 minutes.
    Mr. Peters. Thank you very much, Mr. Chairman.
    I want to thank you and Ranking Member Walz for having this 
hearing to discuss the current appeals process at the VA. This 
is the issue that I hear about most at home, and I am going to 
say it for my own peace, just because everyone else has. It is 
the same story.
    We have in San Diego the third-largest veterans population 
in the country. And our office has helped countless veterans 
who have gotten bogged down in the appeals process. With nearly 
a decade or coming on a decade to have an appeal heard, that is 
just not acceptable.
    One story I just wanted to share with you from my 
constituent was Monica's husband. He was a veteran diagnosed 
with ALS. And with her husband not working and his condition 
worsening, she just struggled to keep up financially. She 
appealed to the VA to increase her husband's benefits and 
provided documentation. She asked for an expedited case due to 
her husband's illness and financial hardship. And, 
unfortunately, by the time the appeals process concluded, her 
husband had passed away.
    We have heard examples like this before. They are 
heartbreaking. They are not just heartbreaking, they are wrong. 
And it is on us, all of us, to work together to do something 
about it.
    Our office will always help vets who need it. And we are 
honored to do that, we are proud to do it. But it shouldn't 
take congressional intervention to get veterans the help that 
they deserve.
    So I hope we can come together to move this legislation 
forward to create new appeals pathways. It is a very sensible 
kind of approach. And we ought to try something-something 
different. Let's take that risk. It helps get the backlog down 
and fix the problem. Because every name on the backlog isn't 
just a statistic, it is a story like Monica's husband, who is 
not receiving the benefit that he was promised, that he earned 
in service to the country.
    So I can't stress the importance of this reform enough to 
me and to my constituents. I want to thank Mr. Bost and Ms. 
Esty for their leadership, Ms. Titus before her, and look 
forward to pushing this thing on to a bipartisan approval. In a 
Congress that is stuck on a lot of issues, I am heartened that 
we are not stuck on this one.
    And I yield back.
    The Chairman. I thank the gentleman for yielding.
    And now I thank you all very much on the panel. It has been 
a great discussion, as I thought it would be. I think this has 
an opportunity to move forward.
    And the panel is now excused.
    I ask unanimous consent that all Members have 5 legislative 
days to revise and extend their remarks and include extraneous 
materials.
    Hearing no objection, so ordered.
    And any questions or statements that Members may have may 
be submitted for the record.
    And I ask also that the VA, for Mr. Rutherford, submit the 
data that Mr. Rutherford asked for.
    And I will now yield to Mr. Walz for any closing comments.
    Mr. Walz. Just, again, thank you all. The partnership here 
is greatly appreciated, trying to come together to solve a 
problem.
    Mr. Roe and I were talking about we pay dues to these 
organizations. All Americans also pay dues to the VA, in the 
form of tax dollars, and we are in this together to get it 
right. I think that spirit of cooperation and I think the 
collaboration that was done ahead of time-with the recognition 
we still have things people are concerned about, and we can 
still keep bringing them forward. But very heartened by this, 
and I think our constituents are being well-served by all of 
you. So thank you.
    And I yield back.
    The Chairman. I thank the gentleman for yielding.
    You know, I think, at the end of the day, we either 
continue the current system and live with these extraordinarily 
long waits-that is one option. As was pointed out by the VA, we 
can appropriate a lot more money and expand what we are doing 
now and hope that clears the system up, as you clearly pointed 
out. Or we can try a new system, which Mr. Spickler said was 
timely, transparent, and fair. I am ready to try timely, 
transparent, and fair over what we had.
    And we could hear stories like Mr. Peters gave. I had a 
similar story before he got here. There are hundreds of 
thousands of them out there. It is time for those stories to 
cease, and we need to get the veterans a timely decision.
    And I appreciate very much-I know how many meetings that 
you all went to, to work out all these extraordinarily 
complicated details to help the veterans, and I very much 
appreciate what you have done. And I look forward to getting 
this across the finish line this year and signed into law and 
get this process reformed.
    Thank you all very much.
    The meeting is adjourned.

    [Whereupon, at 11:33 a.m., the Committee was adjourned.]



                            A P P E N D I X

                              ----------                              

                  Prepared Statement of David Spickler
    Good morning, Chairman Roe, Ranking Member Walz, Members of the 
Committee. Thank you for inviting us here today to present our views on 
a bill that would take critical action necessary to modernize and 
improve the Department of Veterans Affairs (VA) claims appeal process. 
Joining me today is David R. McLenachen, Director of the Appeals 
Management Office, Veterans Benefits Administration.
    Thank you for the opportunity to come before you today to discuss 
the current VA appeals process and the pressing need for reform. I 
believe it is critical for Veterans that we all work together and gain 
consensus on a way forward to reform the VA appeals process.
    Modernizing the appeals process is a top priority for VA. Although 
Veterans are waiting approximately 116 days for a decision on VA 
disability compensation claims, they are waiting an average of 3 years 
for a final decision if they choose to appeal. Moreover, those Veterans 
who choose to continue their appeal to the Board are waiting an average 
of 6 years from the date that they initiated their appeal for a 
decision, and the Board decision may not even resolve the appeal. The 
draft bill being considered today would provide much-needed 
comprehensive reform for the VA appeals process to ensure that Veterans 
receive a timely, final VA decision on their claims. It would replace 
the current, lengthy, complex, confusing VA appeals process with a new 
appeals process that makes sense for Veterans, their advocates, VA, and 
stakeholders. VA supports the intent of this bill; however, we have 
some concerns with certain provisions in the bill as drafted, such as 
the provisions that would remove finality from the process upon 
judicial review and require the Secretary to certify that he has the 
resources necessary to timely process appeals in the future. We look 
forward to the opportunity to work with the Committee to address those 
concerns.
    The current VA appeal process, which is set in law, is broken and 
is providing Veterans a frustrating experience. In the current process, 
appeals have no defined endpoint and require VA staff to engage in a 
continual loop of gathering evidence and re-adjudicating that 
information based on that new evidence. This continuous process of 
gathering evidence and readjudication can add years to the appeals 
process, as appeals churn between the Board and the AOJ. All of this 
has resulted in a system that is complex, inefficient, ineffective, and 
confusing. Additionally, it splits jurisdiction of appeals processing 
between the Board and the agency of original jurisdiction (AOJ), which 
is typically the Veterans Benefits Administration (VBA). Due to this 
complex and inefficient process, Veterans wait much too long for final 
resolution of their appeal. Without significant legislative reform to 
modernize the appeals process, VA projects that wait times and the cost 
to taxpayers will only increase.
    As VA has increased claims decision output in VBA over recent 
years, appeals volume has grown proportionately. Between FYs 2012 and 
2017, the number of pending appeals climbed by 40 percent to more than 
460,000 today
    Comprehensive legislative reform is required to modernize the VA 
appeals process and provide Veterans a decision on their appeal that is 
timely, transparent, and fair. VA continues to work collaboratively 
with a wide spectrum of stakeholder groups to reconfigure the VA 
appeals process into something that provides a timely, transparent, and 
fair resolution of appeals for Veterans and makes sense for Veterans, 
their advocates, stakeholders, VA, and taxpayers. We believe the 
engagement of those organizations that participated ultimately led to a 
stronger proposal, as we were able to incorporate their feedback and 
experience having helped Veterans through this complex process. The 
result of this collaborative work was a new appeals process, with the 
same fundamental features as the process described in section 2 of the 
draft bill, which would provide Veterans with timely, fair, and quality 
decisions. VA is grateful to all of the stakeholders for their 
contributions of time, energy, and expertise in this effort.
    The draft bill would result in a new appeals framework and 
processes that feature differentiated lanes, which give Veterans clear 
options after receiving an initial decision on a claim One lane would 
be for review of the same evidence by a higher-level claims adjudicator 
in the AOJ; one lane would be for submitting new and relevant evidence 
with a supplemental claim to the AOJ; and one lane would be the appeals 
lane for seeking review by a Veterans Law Judge at the Board. In this 
last lane, intermediate and duplicative steps currently required by 
statute to receive Board review, such as the Statement of the Case 
(SOC) and the Substantive Appeal, would be eliminated. Furthermore, 
hearing and non-hearing options at the Board would be handled on 
separate dockets so these distinctly different types of work can be 
better managed. As a result of this new design, the AOJ, such as VBA, 
would be the claims adjudication agency within VA and the Board would 
be the appeals agency. This design would remove the confusion caused by 
the current process, in which a Veteran initiates an appeal in the AOJ 
but the appeal is really a years-long continuation of the claim 
development process. It would ensure that all claim development occurs 
in the context of a supplemental claim filed with AOJ, which the AOJ 
can quickly adjudicate, rather than in an appeal.
    Currently, VA has a statutory duty to assist the Veteran in the 
development of a claim for benefits. This duty includes obtaining 
relevant Federal records, obtaining other records identified by the 
claimant, and providing a medical examination if VA determines that the 
claim requires such an examination. This new design contains a 
mechanism to correct any duty to assist errors by the AOJ. If the 
higher-level claims adjudicator or Board discovers an error in the duty 
to assist that occurred before the AOJ decision being reviewed, the 
claim/appeal would be returned to the AOJ for correction unless the 
claim/appeal could be granted in full. However, the Secretary's duty to 
assist would not apply to the lane in which a Veteran requests higher-
level review by the AOJ or review on appeal to the Board. The duty to 
assist would, however, continue to apply whenever the Veteran initiated 
a new claim or supplemental claim. Moreover, the bill would require VA 
to modify its claims decision notices to ensure they are clearer and 
more detailed. This notice would help Veterans and their advocates make 
informed choices as to which review option makes the most sense.
    This disentanglement of processes would be enabled by one crucial 
innovation. In order to make sure that the Veteran fully understands 
the process and can adapt to changed circumstances, a Veteran who is 
not fully satisfied with the result of any lane would have 1 year to 
seek further review while preserving an effective date for benefits 
based upon the original filing date of the claim. For example, a 
Veteran could go straight from an initial AOJ decision on a claim to an 
appeal to the Board. If the Board decision was not favorable, but it 
helped the Veteran understand what evidence was needed to support the 
claim, then the Veteran would have 1 year to submit new and relevant 
evidence to the AOJ in a supplemental claim without fearing an 
effective-date penalty for choosing to go to the Board first.
    The framework proposed in the draft bill has many advantages. It 
provides a streamlined process that allows for early resolution of a 
Veteran's appeal while also generating long-term savings for taxpayers. 
The lane options allow Veterans to tailor the process to meet their 
individual needs and control their VA experience. It also enhances 
Veterans' rights by preserving the earliest possible effective date for 
an award of benefits, regardless of the option(s) they choose, as long 
as the Veteran pursues the same claimed issue in any of the lanes 
within the established timeframes. By having a higher-level review lane 
within the VBA claims process and a non-hearing option lane at the 
Board, both reviewing only the record considered by the initial claims 
adjudicator, the new process provides a feedback mechanism for targeted 
training and improved quality in VBA.
    Beyond stopping the flow of appeals into the existing broken 
system, the bill provides two opt-ins to ensure that as many Veterans 
as possible benefit from the streamlined features of the new process. 
These opt-ins would provide opportunities to take advantage of the new 
process for all Veterans who receive a decision during the 1-year 
period prior to the effective date of the law and for all other 
Veterans who receive an SOC or Supplemental Statement of the Case 
(SSOC) in a legacy appeal after the effective date of the law. While VA 
believes that the opt-in for Veterans who receive an SOC or SSOC after 
the effective date of the law could be accomplished through regulation, 
VA does not object to the inclusion of this into the bill.
    While VA strongly supports the fundamental features of the new 
process outlined in the draft bill, we have concerns with some aspects 
of the proposed legislation as presently drafted, as discussed below. 
VA strongly opposes a substantive change that would make the effective 
date protection afforded by the filing of a supplemental claim within 1 
year of a decision, applicable to supplemental claims filed within 1 
year of a decision by the United States Court of Appeals for Veterans 
Claims, the United States Court of Appeals for the Federal Circuit, or 
the United States Supreme Court as it is beyond the scope of VA's 
decision process. Additionally, this change is contrary to VA's policy 
interest in encouraging dissatisfied claimants to stay within VA unless 
it is truly necessary to go to a higher court.
    With regard to applicability and the proposed certification of the 
readiness to carry out the new system by the Secretary, the requirement 
that the Secretary submit a statement to Congress that he has the 
resources necessary to timely operate the system is problematic, given 
the annual budget cycle. While VA will be prepared to implement the new 
system at the end of the 18-month period prescribed in the bill and 
shut off the flow of appeals to the broken process, the Secretary 
cannot predict the outcome of future budget cycles. Moreover, if the 
bill was enacted with this provision, it would create significant 
uncertainty in implementing the opt-in component of the law. We note 
that the bill grants claimants a procedural right to elect to 
participate in the modernized appeals system as of one year before the 
applicability date. The applicability date in this bill is necessarily 
indeterminate because, without knowing when the Secretary will be able 
to certify under subsection (x)(1)(A)(ii) that VA has the resources it 
needs to operate the modernized system, it is not possible to know when 
the one year period allowing claimants the right of election begins. We 
would be happy to work with the Committee to discuss alternative 
approaches to the applicability date of the law.
    The draft bill also adds notice requirements to higher-level review 
and Board decisions, for the purpose of explaining whether the claimant 
submitted evidence that was not considered, and if so, why it was not 
considered and what the claimant or appellant can do to have that 
evidence considered. VA views this addition as unnecessary, as a 
claimant who had elected either a higher-level review or an appeal to 
the Board would have already received notice addressing all lane 
options in the new process, including restrictions on the submission of 
new evidence. They would also be aware of the option to file a 
supplemental claim, where they would have the opportunity to submit new 
evidence for consideration by the AOJ. Additionally, the issue of how 
to handle improperly submitted evidence is an administrative matter 
that would best be determined by VA.
    Lastly, the draft bill includes reporting requirements that we 
believe could be adjusted to be less onerous but still provide valuable 
information to the Congress. VA is glad to work with the Committee to 
discuss these requirements, and how they can be shaped to provide 
robust information useful for your oversight should the bill be 
enacted, but that would reflect an efficient use of administrative 
resources.
    VA is poised to provide technical assistance on several other 
aspects of the proposed legislation. We appreciate any opportunity to 
work with Congress to further refine this legislation.
    Mr. Chairman, this concludes my statement. Thank you for the 
opportunity to appear before you today. We would be pleased to respond 
to questions you or other Members may have.

                                 
                  Prepared Statement of Louis J. Celli
    In May of 2016 we addressed this Committee on the importance of 
passing comprehensive appeals reform. Between then and now, over 
125,000 veterans have started their multi-year journey into the appeals 
abyss - how do we explain to those veterans, their families, and the 
American taxpayers that we're still years away from implementing a 
better system because our Congress decided not to act?
    In the 114th Congress, the House Committee on Veterans Affairs, 
with overwhelming support from the veterans' community, passed an 
appeals processing bill that would modernize and streamline the program 
that would bring relief to millions of veterans - but the Senate's 
inaction set the process back almost a year, so here we are again, a 
year later, no further along than we were this time last year.
    Chairman Roe, Ranking Member Walz, and distinguished, dedicated, 
defenders of veterans who proudly serve on this committee; on behalf of 
Charles Schmidt, the National Commander of the largest Veteran Service 
Organization in the United States of America representing more than 2.2 
million dues paying, voting members, and combined with our American 
Legion family whose numbers exceed 3 and a half million voters, living 
in every district in America; it is my duty and honor to present The 
American Legion's position on how to improve the Department of Veterans 
Affairs (VA) claims and appeals process.
    The American Legion thanks this Committee, and your staff, for the 
many hours of hard work and critical thought that you have put into 
this project, and we specifically would like to thank your Chief of 
Staff John Towers and Subcommittee on Disability Assistance and 
Memorial Affairs Staff Director and Counsel, Maria Tripplaar, for their 
committed collaboration and dedication to making this proposed 
legislation as meaningful and impactful as possible.
    The American Legion currently holds power of attorney on more than 
three quarters of a million claimants. We spend millions of dollars 
each year defending veterans through the claims and appeals process, 
and our success rate at the BVA continues to hover around 80 percent.
    When VA invited stakeholders to the table to discuss appeals 
modernization, The American Legion knew that appeals modernization 
could not start with looking at the appellate process; the conversation 
needed to begin at the point of the initial adjudication; so the first 
things the group looked at was the VBA decision notice. As a negotiated 
component of this framework, VBA has promised to improve their decision 
notice which will better inform veterans and their advocates. More 
importantly, a better decision letter will not only help veterans 
better prepare if they need to appeal, but it will help prevent appeals 
from being introduced because the veterans were not properly informed 
about the basis for denial. After VA's commitment to improve the 
initial decision letter, stakeholders helped sort through barriers that 
slowed appeals processing, and highlighted another of The American 
Legion's primary concerns - centralized training.
    VA further argued that if there were a process within the appeals 
system that allowed law judges to review disputed decisions that were 
adjudicated at the regional offices, based only on the same information 
that the regional office had at the time the claim was originally 
decided, then BVA would be able to provide a ``feedback loop'' they 
could use to help train and educate VBA's regional offices, and 
additionally help identify regional offices where the decisions 
uniformly fail to address specific legal issues, and improve initial 
decisions.
    It was with these two foundational underpinnings that the big six 
VSOs, in addition to state and county service officers, veteran 
advocate attorneys, and other interested groups worked with senior VA 
officials from VBA and BVA to design the framework of the legislation 
being discussed again here today.
    The guiding principle leading all of our discussions was ensuring 
that we preserved all of the claimant's due process rights while 
ensuring that they did not lose any claims effective date time, which 
we were not only able to do successfully, but we were able to increase 
protections for veterans through this new process.
    As you are aware, the design of the proposed appeals process allows 
for multiple options for claimants, as well as options for additional 
claim development, the option to have the decision reviewed by another 
adjudicator (difference of opinion) and the chance to take your case 
straight to the court to have a law judge review the decision and make 
a ruling on your claim.
    The proposed bill provides veterans additional options while 
maintaining the effective dates of original claims. Veterans can elect 
to have an original decision reviewed at the ROs through a Difference 
of Opinion Review (DOOR) which is similar to the current functions of 
the Decision Review Officers (DROs). A DOOR provides an opportunity for 
a claimant to discuss concerns regarding the original adjudication of a 
particular issue, or the entire claim, prior to appealing to the BVA. 
Additionally, the administrative actions removes the need for a Notice 
of Disagreement (NOD), a process that took 412.8 days, according to a 
report released to The American Legion following the end of last fiscal 
year. The April 24, 2017 VA Monday Morning Workload Report indicates 
the delay has increased over two weeks, to 429.4 days VA Monday Morning 
Workload Report, April 24, 2017.
    Beyond improvements in administrative functions, the proposed bill 
enables claimants to select a process other than the standard multi-
year long backlog, if they want to have an appeal addressed more 
expediently if they believe they have already provided all relevant and 
supporting evidence. Similar to the Fully Developed Claims program, 
veterans will be able to elect to have their appeals reviewed more 
expeditiously by attesting that all information is included within the 
claim, VA's records, or submitted with VA Form 9 indicating the intent 
to have their claims expeditiously forwarded to BVA for review.
    Veterans indicating that they may need additional evidence or time, 
could elect to have their claim reviewed in BVA's current format of 
allowing additional evidence entered. For veterans requiring additional 
evidence, such as lay statements from friends and families or a private 
medical examination rebutting VA's medical examinations, this is a 
viable alternative to allow the time and opportunity to prove a 
veterans case and secure the benefits they have earned.
    Recognizing that an increased burden is being placed upon veterans, 
VA will ensure veterans maintain their effective dates, even if BVA 
denies the claim. If a veteran's appeal is denied by BVA, the veteran 
can submit new and minimally relevant evidence to reopen the claim at 
the RO while holding the original effective date that may have been 
established long before the second filing for benefits.
    Similar to FDC, The American Legion will work tirelessly to ensure 
this program is successful and appreciates the Committee's support by 
including stakeholders in the certification process as this program is 
officially launched. We recognize the increased burden it can place on 
veterans; we also recognize that our approximately 3,000 accredited 
representatives have the tools to ensure success for the veterans and 
claimants we represent. Throughout the year we will continue to work 
with our representatives, our members, and most importantly our 
veterans to understand the changes in law, and how they will be able to 
succeed with these new changes.
    The American Legion recognizes that this is a huge undertaking and 
that as with any contract, the agreement is only as good as the people 
who sign it. We agree that there is a lot that is not going to be 
included in statutory language, and that this initiative places a lot 
of trust and responsibility on VA to do the right thing. The American 
Legion believes that the Secretary needs this flexibility in order to 
set this program up effectively, and that VA will continue to work with 
stakeholders and congress as we move forward. Any deviation from that 
plan will upset overseers and stakeholders alike, and will surely 
result in veterans being cheated as we all will ending up right back 
here in this hearing room to fix it.
    In order to come to an agreement, stakeholders needed to trust VA 
to do the things they promised to do, and do them in good faith. There 
are a lot of nuances that aren't able to be legislated, and the VSOs 
are going to be providing constant feedback as we move forward with 
appeals modernization. We believe that the architects of this proposal 
have acted in good faith, and we support their efforts to modernize the 
appeals process for the good of veterans, for the good of the process, 
and for the good of the American taxpayer.

                                 
                  Prepared Statement of Jim Marszalek
    Mr. Chairman and Members of the Committee:
    Thank you for inviting DAV (Disabled American Veterans) to testify 
on the new appeals modernization framework and specifically on new 
draft legislation to implement it. As you know, the appeals 
modernization framework was developed through a remarkable 
collaboration between the Veterans Benefits Administration (VBA), the 
Board of Veterans Appeals (Board) and a group of stakeholders who 
represent veterans, including DAV. Through further consultation and 
collaboration with this Committee and others in Congress, we now have a 
legislation that DAV strongly supports and we look forward to working 
with you to move this legislation through the House and Senate, and 
onto the President's desk so that he can sign it into law.
    As National Service Director for DAV, I want to thank you Mr. 
Chairman, Ranking Member Walz, as well as Chairman Bost, and Ranking 
Member Esty from the Subcommittee on Disability and Memorial Affairs 
for making appeals modernization a priority for the new 115th Congress. 
I also want to thank Congresswoman Titus for her leadership on this 
issue. As you may know, DAV is a congressionally chartered national 
veterans' service organization of 1.3 million wartime veterans, all of 
whom were injured or made ill while serving on behalf of this nation. 
To fulfill our service mission to America's injured and ill veterans 
and the families who care for them, DAV directly employs a corps of 
more than 260 National Service Officers (NSOs), all of whom are 
themselves wartime service-connected disabled veterans, at every VA 
regional office (VARO) as well as other VA facilities throughout the 
nation. Together with our Chapter, Department, Transition and County 
Veteran Service Officers, DAV has over 4,000 accredited representatives 
on the front lines providing free claims and appeals services to our 
nation's veterans, their families and survivors.
    In 2016, DAV NSOs interviewed over 152,000 veterans and their 
families; filed over 197,000 new claims for benefits; and obtained more 
than $4 billion in new and retroactive benefits for the injured and ill 
veterans we represented before the VA. We currently represent over one 
million veterans or survivors, making DAV the largest veterans service 
organization providing claims assistance. In addition DAV employs 11 
National Appeals Officers (NAO) who represent veterans, dependents and 
survivors in their appeals before the Board of Veterans' Appeals 
(Board). In fiscal year 2016, DAV NAOs provided representation for 28 
percent of all appeals decided by the Board, a caseload of 14,630 
appeals, more than any other VSO. This testimony reflects the 
collective experience and expertise of our thousands of dedicated and 
highly trained service officers who provide free claims and appeals 
assistance to hundreds of thousands of veterans and survivors each 
year.
    While the claims and appeals process has always taken too long to 
get veterans accurate decisions, over the past few years the number of 
pending appeals has risen dramatically - to over 450,000 - even while 
the claims backlog has been significantly reduced. As a result, an 
appeal today can take anywhere from three to five years before final 
resolution, a delay that is simply unacceptable and often harmful for 
veterans forced to wait years for earned benefits. We hope today's 
hearing will move us one step closer to finally enacting meaningful 
reform of the appeals process.
    Mr. Chairman, the draft bill you have put forward builds upon the 
efforts of the workgroup comprised of VBA, the Board and 11 major 
stakeholder organizations, including DAV, all of whom assist veterans 
with their appeals. Just over one year ago, over several very intensive 
months that included a number of closed-door, all-day sessions, the 
workgroup was able to reach general consensus on principles, provisions 
and ultimately draft legislation. Several bills embodying the framework 
were introduced last year in the House and Senate, and one subsequently 
passed the House, however further action stalled as the 114th Congress 
came to a close. However, we were very pleased that legislation 
embodying the appeals modernization framework was reintroduced in the 
House (H.R. 457) by Rep. Dina Titus, and in the Senate (S. 712) by Sen. 
Blumenthal, in addition to the draft legislation being considered by 
the Committee today. We are greatly encouraged with the bipartisan 
support for reforming the appeals system and look forward to working 
with all of you to continue refining the legislation while moving 
swiftly to enact it early this year.
    Before turning to the draft legislation, it is important to 
understand that the pending and growing appeals inventory was primarily 
an unfortunate, yet foreseeable consequence of a long-term lack of 
adequate resources for both VBA and the Board. Over the past five 
years, there was a clear shift of focus and resources inside VBA to 
bringing down the claims backlog, thereby neglecting the appeals 
processing at VA Regional Offices (VARO) and resulting in today's 
staggering appeals backlog. Moving forward, adequate resources will be 
critical to the success of appeals reforms, as well as continuing 
progress on the claims backlog.

A New Framework for Veterans' Claims and Appeals

    The new framework developed by the workgroup would protect the due 
process rights of veterans while creating multiple options for them to 
receive their decisions in a more judicious manner. The critical core 
of the new system allows veterans to have multiple options to reconcile 
unfavorable claims' decisions, introduce new evidence new evidence at 
both the Board and VBA, and protect their earliest effective dates 
without having to be locked into the current long and arduous formal 
appeals process at the Board.
    In general, the framework embodied in the draft legislation would 
have three main options for veterans who are unsatisfied with their 
claims decision. Veterans must elect one of these three options within 
one year of the claims decision to protect their effective date. First, 
there will be an option for a local, higher-level review of the 
original claim decision based on the evidence of record at the time of 
the claim decision. Second, there will be an option for readjudication 
and supplemental claims when new and relevant evidence is presented or 
a hearing requested. Third, there will be an option to pursue an appeal 
to the Board - with or without new evidence or a hearing.
    The central dynamic of this new system is that a veteran who 
receives an unfavorable decision from one of these three main options 
may then pursue one of the other two appeals options. As long as the 
veteran continuously pursues a new appeals option within one year of 
the last decision, they would be able to preserve their earliest 
effective date, if the facts so warrant. Each of these options, or 
``lanes'' as some call them, have different advantages that allow 
veterans to elect what they and their representatives believe will 
provide the quickest and most accurate decision.
    For the higher-level review option, the veteran could choose to 
have the review done at the same local VARO that made the claim 
decision, or at another VARO, which would be facilitated by VBA's 
electronic claims files and the National Work Queue's ability to 
instantly distribute work to any VARO. The veteran would not have the 
option to introduce any new evidence, nor have a hearing with the 
higher-level reviewer, although VBA has indicated it may allow 
veterans' representatives to have informal conferences with the 
reviewer in order for them to point out errors of fact or law. The 
review and decision would be ``de novo'' and a simple ``difference of 
opinion'' by the higher-level reviewer would be enough to overturn the 
decision in question. If the veteran was not satisfied with the new 
decision, they could then elect one of the other two options.
    For this higher-level review, the ``Duty to Assist'' (DTA) would 
not apply since it is limited to the evidence of record used to make 
the original claims decision. If a ``duty to assist'' error is 
discovered that occurred prior to the original decision, unless the 
claim can be granted in full, the claim would be sent back to the VARO 
to correct any errors and readjudicate the claim. If the veteran was 
not satisfied with that new decision, they would still elect the other 
appeal options. It is critical that relevant information be captured 
relative to decisions that have been overturned by a higher-level 
reviewer, the number of decisions upheld, and the number of decisions 
sent back to the RO's to correct DTA violations. This information is 
needed to correct any claims processing errors that may be taking place 
within RO's.
    For the readjudication/supplemental claims option, veterans would 
be able to request a hearing and present new evidence that would be 
considered in the first instance at the VARO. VA's full ``duty to 
assist'' would apply during readjudication, to include development of 
both public and private evidence. The readjudication would be a de novo 
review of all the evidence presented both prior to and subsequent to 
the claims decisions until the readjudication decision was issued. As 
with a higher-level review, if the veteran was not satisfied with the 
new decision, they could then elect one of the other two options to 
continue redress of the contested issue(s). These first two options 
take place inside VAROs and cover much of the work that is done in the 
current Decision Review Officer (DRO) process, although it would be 
separated into two different lanes: one with and one without new 
evidence or hearings.
    For the third option, a notice of disagreement would be filed to 
initiatie Board review, triggering the formal appeal process. The Board 
would operate two separate dockets, one that does not allow hearings 
and new evidence to be introduced; and a second that allows both new 
evidence and hearings. The Board would have no ``duty to assist'' 
obligation to develop any evidence presented. For both of these 
dockets, the appeal would be routed directly to the Board and there 
would no longer be Statements of Case (SOCs), Supplemental Statement of 
the Case (SSOCs) or any VA Form 8 or 9 to be completed by VBA or the 
veteran. The workgroup established a goal of having no hearing/no 
evidence appeals resolved within one year, but there was no similar 
goal for the more traditional appeals docket. While eliminating 
introduction of evidence and hearings would naturally make the Board's 
review quicker, it is important that sufficient resources be allocated 
to the traditional appeal lane at the Board to ensure a sense of equity 
between both dockets.
    For the Board docket that allows hearings, veterans could choose 
either a video conference hearing or an in-person hearing at the 
Board's Washington, DC offices; there would no longer be travel hearing 
options offered to veterans. New evidence would be allowed, but limited 
to specific timeframes: if a hearing is elected, new evidence could be 
presented at the hearing or for 90 days following the hearing; if no 
hearing is elected, new evidence could be presented with the filing of 
the NOD or for 90 days thereafter. If the veteran was not satisfied 
with the Board's decision, they could elect one of the other two VBA 
options, and if filed within one year of the Board's decision, they 
would continue to preserve their earliest effective date. The new 
framework would impose no limits on the number of times a veteran could 
choose one of these three options, and as long as they properly elected 
a new one within a year of the prior decision, they would continue to 
protect their earliest effective date.
    If the Board discovers that a ``duty to assist'' error was made 
prior to the original claims decision, unless the claim can be granted 
in full, the Board would remand the case back to VBA for them to 
correct the errors and readjudicate the claim. Again, if the veteran 
was not satisfied with the new claim decision, they could choose from 
one of the three appeals options available to them, and as long as they 
properly made that NOD election within one year of the decision, they 
would continue to preserve their earliest effective date.

Improving Claims Decision Notification

    While the workgroup was initially focused on ways to improve the 
Board's ability and capacity to process appeals, from the outset we 
realized that appeals reforms could not be fully successful unless we 
simultaneously looked at improving the front end of the process, 
beginning with claims' decisions. One of the issues that the 
development of the FDA proposal exposed was the importance of 
strengthening decision notification letters provided by VBA. A clear 
and complete explanation of why a claim was denied is the key to 
veterans making sound choices about if and how to appeal an adverse 
decision. Therefore, a fundamental feature of the new appeals process 
must include ensuring that claims' decision notification letters are 
adequate to properly inform the veteran.
    Under the new framework, the contents of the notification letter 
must be clear, easy to understand and easy to navigate. The notice must 
convey not only VA's rationale for reaching its determination, but also 
the options available to claimants after receipt of the decision. The 
draft legislation would require that in addition to an explanation for 
how the veteran can have the decision reviewed or appealed, all 
decision notification letters must contain the following information to 
help them in determining whether, when, where and how to appeal an 
adverse decision:

    (1)A list of the issues adjudicated;

    (2)A summary of the evidence considered;

    (3)A summary of applicable laws and regulations;

    (4)Identification of findings favorable to the claimant;

    (5)Identification of elements that were not satisfied leading to 
the denial;

    (6)An explanation of how to obtain or access evidence used in 
making the decision; and

    (7)If applicable, identification of the criteria that must be 
satisfied to grant service connection or the next higher level of 
compensation for the benefit sought.

    Overall, the new framework embodied in the draft legislation would 
provide veterans with multiple options and paths to resolve their 
disagreements more quickly, while preserving their earliest effective 
dates to receive their full entitlement to benefits. The structure 
would allow veterans quicker ``closed record'' reviews at both VBA and 
the Board, but if they believe that additional evidence is needed to 
satisfy their claim, they retain the right to introduce new evidence, 
or request a hearing at either VBA or the Board. If implemented and 
administered as envisioned by the workgroup, this new appeals system 
could be more flexible and responsive to the unique circumstances of 
each veteran's claim and appeal, leading to better outcomes for many 
veterans.

Significant Modifications to Appeals Framework in Draft Legislation

    Although this draft bill embodies the appeals modernization 
framework agreed to by the workgroup last year, it includes some 
significant differences.
    This legislation would enhance effective date protections for 
claimants that choose to file appeals with the Court of Appeals for 
Veterans Claims, the Court of Appeals for the Federal Circuit and the 
Supreme Court. Claimants could preserve their effective dates for 
continuously pursued claims, if they choose to file a supplemental 
claim within one year following a decision from these courts. This is a 
fair and equitable approach to provide claimants with the option to 
exercise their full appellate rights, without having to potentially 
jeopardize their effective date.
    Under this proposal, claimants with legacy appeals would also be 
permitted to enter into the new system at certain junctures. In 
instances when a Statement of the Case, or Supplemental Statement of 
the Case is issued, claimants would have the opportunity to opt into 
the new processing system. In addition, this draft legislation would 
allow veterans who file a Notice of Disagreement within one year of the 
new system becoming effective, the option to enter into the new system 
rather than being forced to undergo processing in the legacy system. 
These changes were proposed by VBA and the Board and DAV supports them. 
Allowing claimants to make well informed decisions on the type of 
processing that is in their best interest would not only help to reduce 
the number of legacy claims, but provide these claimants with options 
best suited for their individual circumstances.
    In order to provider greater assurance that VBA and the Board are 
prepared to make this major transition to a new appeals system, the 
legislation would require the Secretary to submit a detailed transition 
and implementation plan, and then require the Secretary to certify that 
all elements are in place to efficiently process legacy claims and run 
the new modernized system. Furthermore, VSO collaboration is required 
along with this certification, a provision that serves everyone's best 
interests. DAV looks forward to continuing to work with VBA, the Board 
and Congress to ensure the transition and implementation is as smooth 
as possible.
    Lastly, the draft legislation contains detailed reporting 
requirements, along with oversight to be performed by the Government 
Accountability Office (GAO). It is essential to have continuous real-
time data concerning elements of both the legacy system and modernized 
system. In order to measure VA's progress, these metrics will assess 
where modifications would be needed in order to improve processing 
within either system. The oversight performed by GAO is another 
effective way of ensuring these changes produce a positive outcome for 
claimants within the legacy and modernized systems.

RECOMMENDATIONS

    Options Following decision by the Agency of Original Jurisdiction

    Section 2 (h) (1) (a), of this bill sets forth the options 
available to a claimant once a decision has been made. These options 
include, but are not limited to, filing a supplemental claim, 
requesting a higher level review, or filing a notice of disagreement.
    Within this provision, there is some uncertainty how the word 
``claim'' would be interpreted. Today, one claim can contain multiple 
issues, or a claim can simply contain one issue. The language would 
need to specify that a claimant can seek one of the three options noted 
above separately for each ``issue'' contained within a claim in order 
to avoid any unintended consequences that would disadvantage a 
claimant. For example, a veteran seeking an increased rating for 
hearing loss should be able to choose to file a supplemental claim for 
that issue, while also filing their notice of disagreement to the Board 
for the denial of service connection for a left knee disability. 
Allowing each issue to flow through the most appropriate ``lane'' will 
not only result in more timely decisions for the veteran, it will also 
make more efficient use of both VBA and Board resources.
    DAV recommends:

      The legislation clarify that claimants can elect 
different appeals options for individual ``issues'' decided within a 
claim.

Appeals to the Board

    The manner in which evidence would be handled by the Board, 
particularly, as it pertains to their DTA requirements would 
fundamentally change under this proposal.
    The draft legislation would create two separate dockets for the 
Board, while allowing them the authority to create additional dockets. 
The first docket, currently called the ``non-hearing'' docket in the 
legislation, would be for claimants that simply want their case 
reviewed at the Board based on the evidence of record, the simplest 
docket to manage. The Board would be limited to determining if the 
decision can be overturned based on the evidence of record, or whether 
VBA committed any DTA violations during the adjudication of a claim.
    The second docket, currently called the ``hearing'' option docket 
in the legislation, would allow claimants the right to a hearing as 
well as to submit evidence directly to the Board for their review in 
the first instance. A claimant who chooses the ``hearing'' docket would 
then have to elect whether to request a ``hearing'' in the ``hearing'' 
docket, or to request ``no hearing'' in the ``hearing'' docket, which 
would still allow them the opportunity to submit evidence. For those 
who choose the ``hearing'' docket with the ``hearing'' option, they 
would have an opportunity to supply evidence at and up to 90 days after 
their Board hearing.
    For those who choose the ``hearing'' docket with the ``no hearing'' 
option, they would have the opportunity to submit new evidence with and 
up to 90 days after filing their NOD. However, the legislation does not 
make clear whether evidence presented with the NOD or 90 days 
thereafter for the ``hearing'' docket / ``hearing'' option would be 
accepted, returned or ignored. Would the Board really ignore evidence 
that arrived one day prior to a hearing?
    We believe legislative language in the draft bill used to 
distinguish the two dockets, compounded by the separate evidentiary 
time periods associated with each, could cause confusion, disadvantage 
some veterans and add unnecessary complexity to the Board's processing 
of these appeals.
    DAV recommends:

      New terminology should be used to distinguish the two 
dockets, such as the term ``new evidence'' rather than ``hearing''. For 
example, there could be one docket for ``no new evidence'' and another 
for ``new evidence.'' The ``new evidence'' docket would then offer the 
option to request a hearing, because the hearing itself is also 
evidence.
      Rather than having two distinctly different time periods 
when evidence would be accepted for the ``new evidence'' docket, the 
``hearing'' option should allow evidence to be presented from the 
filing of the NOD until 90 days after the hearing. Evidence presented 
prior to a hearing would simply be made part of the record and 
considered in conjunction with the appellate issues before the Board. 
Since the Board no longer would have any DTA obligations, all new 
evidence would still be considered at the same time after the hearing.
      The Board should be required to regularly report on the 
length of time it takes to process appeals on each docket, including 
separate metrics for those that request hearings and those who submit 
new evidence but don't request hearings.
      For evidence presented prior to the hearing date, where 
evidence can be supplied within 90 days following a hearing, we 
recommend this evidence simply be made part of the record.
      For evidence presented to the Board after the time 
periods allowed in the law on the ``new evidence docket'', or any 
evidence presented for appeals on the ``no new evidence'' docket, the 
decision notice explain the evidence was not considered in the 
decision, together with an explanation of options for the claimant to 
have such evidence considered. The draft legislation already contains a 
provision requiring this notice for the new ``higher level review'' 
option, which should be the same for Board decisions.

    The legislation would also provide the Board with the authority to 
``screen cases'' in order determine if further development is required 
earlier in the process, rather than waiting longer to accomplish the 
same thing.
    To assure this authority is properly utilized, DAV recommends:

      The Board be required to report on all screened cases, 
delineated by:

        The number of issues found to require additional 
development;
        The types of issues that required additional 
development, i.e., issues involving service connection, or issues 
involving increased ratings;
        The number of claimants that chose to opt into the new 
system following remand;
        The number of claimants that chose to remain in the 
legacy system following remand;
        The number and types issues that were granted based on 
screening;
        The number of cases containing multiple decisions, 
including how many of the issues were remanded, denied, or allowed.

    The draft legislation mandates the creation of the two dockets 
discussed above, and also provides authority for the Board to create 
additional dockets, subject to notifying the House and Senate Veterans' 
Affairs Committees, with the justification. The Board might consider 
creating a third docket in order to separate appeals that will include 
new evidence, but do not request a hearing. As it stands now, veterans 
who submit new evidence, but do not request a hearing could be forced 
to wait months, or even years behind veterans who request a hearing. A 
third docket could be implemented to avoid such unnecessary delays for 
veterans, allow greater oversight and make more efficient use of Board 
resources.

New and ``Relevant'' Evidence

    The legislation would replace the standard for reopening claims 
from ``new and material'' with ``new and relevant.'' In the current 
system, the ``new and material'' standard has not effectively 
functioned as intended to focus VBA and Board resources on adjudicating 
the substance of claims and appeals.
    In order to monitor whether the ``new and relevant'' standard will 
be more effective in this regard, while continuing to protect veterans 
rights, DAV recommends::

      VBA and the Board should regularly report on the number 
and outcome of ``new and relevant'' decisions, including -
        The number of supplemental claims denied because no 
``new and relevant'' evidence had been received;
        The number of higher level reviews filed with respect 
the issue of no ``new and relevant'' evidence, and the disposition of 
these higher level reviews;
        The number of appeals filed with respect to the issue 
of no ``new and relevant'' evidence, which Board docket or options were 
used, and the outcome of the Boards determination, i.e, decisions 
upheld, decisions overturned, cases remanded for DTA violations.

Stakeholder Transition and Implementation Advisory Committee

    Since March of 2016, DAV, Congress, VA, the Board and many other 
stakeholders have worked very closely to develop and refine the appeals 
modernization proposal. This partnership has been integral to making 
sure a modernized system will benefit our nation's injured and ill 
veterans, without compromising their due process rights and keeping 
VA's non-adversarial roll intact.
    We are appreciative that the draft legislation includes a provision 
that requires the Secretary to collaborate and consult with the three 
largest veterans' service organizations as part of the certification 
required to begin operating the new appeals system, and expect that our 
continued partnership with VA will continue to benefit both veterans 
and the VA. However, the hard work of implementing operating this new 
system will continue for many years, and VSOs and other stakeholders 
can continue to play an integral role supporting this effort.
    To ensure this partnership continues on throughout all phases of 
the implementation process, DAV recommends:

      The legislation include a provision to create a 
``Stakeholder Transition and Implementation Advisory Committee'' to 
engage with VBA and the Board during implementation, transition and 
operation of the new system. This advisory committee should be composed 
of at least the three largest VSO's in terms of the number of claimants 
they represent before the VBA and the Board, as well as other major 
stakeholders who represent veterans at VBA of the Board, as determined 
by the Secretary.

Planning, Oversight and Public Reporting

    The draft legislation includes a number of new planning, reporting 
and certification requirements that are appropriate for legislation 
embodying such a significant transformation. This level of reporting is 
critical to allow Congress and other stakeholders to help identify and 
offer solutions to unintended consequences and problems that may arise.
    To strengthen this oversight, DAV recommends:

      The legislation require that all VA plans, metrics and 
reports provided to Congress also be made immediately available to the 
public.

Temporary Staffing Increases

    Finally, as mentioned above, the most critical factor in the rise 
of the current backlog of pending appeals was the lack of sufficient 
resources to adequately manage the workload. Similarly, unless VBA and 
the Board request and are provided adequate resources to meet staffing, 
infrastructure and IT requirements, no new appeals reform will be 
successful in the long run. As VBA's productivity continues to 
increase, the volume of processed claims will also continue to rise, 
which has historically been steady at a rate of 10-11 percent of claims 
decisions. In addition, the new claims and appeals framework will 
likely increase the number of supplemental claims filed significantly.
    We are encouraged that VA has indicated a need for greater 
resources for both VBA and the Board in order to make this new appeals 
system successful; however, too often in the past funding for new 
initiatives has waned over time. We would urge the Committee to ensure 
that proper funding levels are determined and appropriated as this 
legislation moves forward.
    Over the past few years, DAV and our Independent Budget partners 
have recommended that Congress consider providing VBA with the 
temporary authority and resources to hire two-year temporary employees. 
In the past, VBA used such an authority to hire several thousand 
employees for a temporary two-year term. At the end of those two years, 
many of the best that were hired on a temporary basis transitioned into 
permanent positions as they became open due to attrition. VBA not only 
had additional surge resources to work on the claims backlog during the 
two-years, but VBA also benefited by creating a pool of trained, 
qualified candidates to choose from as replacements for full-time 
employees leaving VBA.
    This draft bill recognizes the need to address personnel 
requirements within the VBA and the Board as they implement and 
administer the modernized appeals system, as well as address the legacy 
appeals.
    In order to provide a surge capacity to address both appeals and 
claims, DAV recommends:

      VBA and the Board be provided additional authority and 
resources to hire two-year temporary employees, with the goal of 
eventually making the best of the temporary employees permanent 
employees based on the future and continuing personnel requirements of 
VBA and the Board.

    Mr. Chairman, the draft legislation being considered today 
represents a true collaboration between VA, VSOs, other key 
stakeholders and Congress in order to reform and modernize the appeals 
process. We are confident that this draft legislation, with the 
additional improvements recommended by DAV and other, could provide 
veterans with quicker favorable outcomes, while fully protecting their 
due process rights.
    We remain committed to working with you, VA and other stakeholders 
to resolve any remaining issues and swiftly pass and enact 
comprehensive appeals reform legislation early this year.
    That concludes my testimony and I would be happy to answer any 
questions that you or members of the Committee may have. Thank you.

                                 
                 Prepared Statement of Ryan M. Gallucci
    Chairman Roe, Ranking Member Walz, and distinguished members of the 
Committee, on behalf of the men and women of the Veterans of Foreign 
Wars of the United States (VFW) and its Auxiliary, thank you for the 
opportunity to present the VFW's thoughts on the pending Veterans 
Appeals Improvement and Modernization Act of 2017. The VFW is the 
nation's largest war veterans organizations, with more than 1,900 
accredited representatives around the world, representing nearly 
500,000 veterans in prosecuting their benefit claims before the 
Department of Veterans Affairs (VA). As such, this proposed legislation 
will have a tremendous impact not only on the members of the VFW, but 
on all the men and women we serve every day out of VA Regional Offices, 
military installations, as well as state and county offices.
    First, I must clarify that the VFW supports the Committee's effort 
to reform and modernize the VA claims and appeals process to better 
serve the needs of the veterans' community. Over the years, the VA 
claims and appeals process has morphed into a bureaucratic leviathan 
that the average veteran cannot possibly understand. Moreover, for 
veterans who disagree with their assigned rating decision, they 
currently have no way to determine whether choosing to appeal is a 
reasonable course of action without seeking assistance from an 
accredited representative or legal counsel. Then, should a veteran 
choose to appeal their decision, exercising their due process rights 
can take up to five years. To the VFW, this does not seem like a 
veteran-centric, non-adversarial process.
    To the VFW, the goal of the Veterans Appeals Improvement and 
Modernization Act of 2017 is to once again build a veteran-centric 
process that is easy to navigate and protects a veteran's rights every 
step of the way. Last year, the VFW was one of more than a dozen 
veterans' community stakeholders convened to discuss the way forward in 
modernizing the VA claims and appeals processes. At the time, the 
acknowledgement was that the system was cumbersome and no longer 
satisfied the needs of veterans who rightfully expect timely and 
accurate rating decisions on the benefits they earned. The resultant 
product of these discussions is the framework included in this draft 
legislation, and the VFW is proud to support it. However, we have 
several questions and recommendations for this Committee to consider 
before advancing this legislation to ensure that any new claims and 
appeals framework satisfies the intent of Congress to build a veteran-
centric system. In our testimony today, we will discuss the VFW's 
perspective on the new claims and appeals framework--preserving clear 
and unmistakable error protections; options to adjudicate legacy 
appeals; and VA reporting requirements.

New Claims and Appeals Framework

    Through this legislation, Congress will modify the options for 
veterans to pursue accurate rating decisions prior to filing a formal 
appeal, while simultaneously preserving their earliest possible 
effective date. This legislation also directs VA to improve its award 
notifications for veterans, outlining seven specific pieces of 
information each decision notice to a veteran shall include. Improved 
notification letters have been a top priority of the VFW and our 
partner organizations for years, and we are happy to see the Committee 
pursue this aggressively. To the VFW, inadequate notification letters 
have been a fundamental failure in the VA claims process for decades. 
In their current format, veterans have no reasonable way to understand 
how VA arrived at their benefit decision, meaning veterans have no way 
to reasonably conclude whether or not the decision is accurate and 
whether or not they need to pursue another avenue of recourse.
    As accredited representatives, one of our top responsibilities is 
explaining rating decisions to veterans and deciphering which evidence 
was used to render a decision and how VA evaluated that evidence. 
Improved decision notices will put some of this power back into the 
veteran's hands, ensuring they are well informed of their rating and 
how VA arrived at its conclusion. This sets the veteran up for success 
in navigating the process and has the potential to cut down on appeals 
where veterans simply may have misunderstood their rating decision.
    Coupled with improved notifications, this legislation codifies 
three specific paths through which veterans can arrive at a fair and 
understandable rating decision, while preserving the earliest possible 
effective date. Two of these paths--higher level review and 
supplemental claims readjudication--offer recourse for the veteran 
without filing a formal appeal, offering the veteran and VA the 
opportunity to rectify discrepancies before the veteran formalizes an 
appeal.
    Currently, when a veteran receives a rating decision, they must 
choose whether or not to formally file a notice of disagreement, 
kicking off a potentially years-long process to arrive at a new 
decision, sometimes when only small matters of evidence or 
interpretation of the law need to be addressed. By redesigning appeal 
options, the process remains non-adversarial as long as possible, and 
also encourages VA to produce quality rating decisions at the local 
level, instead of punting more complicated cases for the Board of 
Veterans Appeals (BVA) to review.
    Critics have called these two new paths at the regional office an 
``erosion'' of veterans' due process rights. This is an inaccurate 
assessment that fails to acknowledge that the VA claims process is 
supposed to be veteran friendly and easily navigable by any veteran who 
seeks to access his or her earned benefits. Moreover, the new framework 
actually expands veterans' due process rights by offering additional 
recourse at the local level, preserving routes to the BVA and the 
courts, and preserving a veteran's right to seek legal counsel after an 
initial rating decision.
    Though the VFW always encourages veterans to seek professional 
assistance from an accredited representative whenever possible, a 
perfect system would be one where veterans do not need professional 
assistance, and certainly do not need to retain a lawyer, simply to 
claim an earned benefit. The VFW believes this proposed framework--if 
properly implemented--moves veterans more closely to such a system.
    To the VFW, the most critical new protection for veterans is the 
lane in which veterans can continually submit new and relevant evidence 
to VA within one year of a rating decision and receive a new rating 
decision on the evidence of record, preserving their original effective 
date. Coupled with improved notification letters, this option could be 
a game changer for veterans, resulting in more favorable decisions at 
the local level.
    First, lowering the evidentiary threshold to receive a new rating 
decision to only new and relevant is an improvement for veterans. The 
old standard was new and material. While the VFW would prefer that VA 
only be required to consider new evidence, we support this change which 
would ease the evidentiary burden for veteran claimants, potentially 
resulting in more favorable decisions.
    Key to the success of this lane is communication among VA, the 
veteran, and the veteran's advocate where applicable. If a veteran 
receives a clear and understandable rating decision, but notices that 
certain evidence was not contained in the record, they now have an 
opportunity to formally submit this and receive a new, timely rating 
decision, instead of pursuing years of a formal, contentious appeal. 
Moreover, accredited veterans' advocates now have a new tool to help 
resolve claims at the earliest possible time, ensuring that their 
clients receive every benefit they have earned.
    To the VFW, this is the best possible outcome. According to VA's 
own data, more veterans are seeking out our assistance every year to 
access their earned benefits. Last year, the VFW took on four new 
claimants for every claimant we lost. While we like to tout that this 
is a testament to the professionalism of our staff, we also know that 
this kind of growth means that we need to help VA get it right the 
first time. Prolonging a veteran's claim is bad all around. It puts 
unnecessary stress on the veteran and it makes VA look like an 
irresponsible steward of benefits. At a time when more veterans need 
access to benefits, the VFW supports offering more non-adversarial 
recourse at the local level to arrive at quality rating decisions. This 
is what our veteran clients expect, and this is why we support this new 
framework.
    The VFW also supports the maintenance of two separate dockets at 
BVA to adjudicate new appeals, though we have persistent concerns about 
the timeliness of decisions in each docket and the potential 
disincentive for veterans to pursue an appeal with a hearing. That 
being said, the VFW supports docket flexibility so that BVA can 
properly manage its workload and provide veterans with timely 
decisions. However, in testimony earlier this year, VFW Commander-in-
Chief Brian Duffy called for the simultaneous maintenance of five 
separate dockets at BVA to best reflect the legacy workload as well as 
the new system workload, including one docket for appeals with no new 
evidence and no hearing; one for appeals with new evidence but no 
hearing; and one for appeals with both new evidence and a hearing.
    Next, in past discussions, some were concerned that a new framework 
would erode veterans' due process rights and have a chilling effect on 
the Court of Appeals for Veterans Claims. The VFW is happy to see that 
the Committee worked to address this concern in this legislation, 
articulating that effective dates of supplemental claims resulting from 
court decisions will be offered the same protections within one year of 
the court's decision. The VFW believes that this is sufficient to 
retain oversight of BVA decisions and assuage concerns that veterans 
would be penalized for pursuing their claims through the court system 
only to lose their effective date.
    When the Committee first started discussing the concept of appeals 
reform for the 115th Congress, the VFW and several of our partner 
Veterans Service Organizations (VSOs) saw this as an opportunity to 
once again discuss potential conflicts that arose in the initial 
discussions in 2016. One significant conflict was the ability of 
veterans with appeals languishing in the legacy system to be able to 
opt into the new framework. In this legislation, we are pleased to see 
that the Committee addressed these concerns by articulating formal 
``off ramps'' for legacy appeals to opt into the new system at critical 
decision points.
    To the VFW, this is a benefit to affected veterans and to VA. 
First, veterans whose appeals have been mired in the old appeals system 
will have several opportunities to take advantage of new processes, 
such as submitting new and relevant evidence when their claims are 
remanded back to the Regional Office. This will allow veterans an 
opportunity to avoid another lengthy appeal process and allow VA to 
address the issues at the Regional Office in a timely manner. For VA, 
the VFW believes this will be a critical tool in helping to adjudicate 
the backlog of legacy appeals, resulting in more timely, favorable 
decisions for veterans.
    The VFW understands that VA had some concerns about these off ramps 
and the strain on resources at the local level. The VFW does not share 
these concerns as VA has the responsibility to adjudicate its workload 
regardless of where the claim happens to be in the process. Moreover, 
this reinforces the VFW's calls on Congress to properly resource 
Veterans Benefits Administration (VBA) and BVA to manage their 
workload. Without proper resources, any claims and appeals framework 
will fall prey to dangerous backlogs, resulting in unacceptable benefit 
delays for veterans.

Preserving Clear and Unmistakable Error Protections

    As with any systemic change, the VFW seeks to avoid unintended 
consequences. One of the most critical protections offered to veterans 
in the current claims and appeals framework is the ability to revise 
rating decisions in which VA has made a clear and unmistakable error 
(CUE) in its rating decision. While many times veterans must take a 
remedial claim action within a year of their rating decision to 
preserve an original effective date, decisions based on CUE can be 
revised back to the original effective date at any time.
    In revisions to the discussion draft, section 5104(c) was added to 
allow veterans with decisions issued in the one year period prior to 
the effective date of the modernized appeal system to opt in to the 
system. This revision adds a section that creates a conflict of law, 
and we would like to address this now in the statutory language so 
there is no need for litigation. After the one year period to submit 
additional evidence or appeal a decision has passed, the decision 
becomes final and can only be revised in two ways: by submitting new 
and material evidence (new and relevant under the modernized appeals 
system); or by submitting a motion to revise a previous decision based 
on clear and unmistakable error. A motion to revise a previous decision 
based on clear and unmistakable error (CUE) is not a claim. It has its 
own authority under section 5109A of title 38 United States Code (USC) 
for motions filed with respect to a final decision by the agency of 
original jurisdiction and under section 7111 of title 38 USC for 
motions filed with respect to a final decision by the Board of Veterans 
Appeals.
    The authority to revise a decision based on CUE is an important 
vehicle for redressing wrongs in the event that a veteran failed to 
prosecute his or her claim and the underlying decision was incorrect 
based on the law at the time of the decision. If a claimant is ill or 
unable to file a notice of disagreement within a year, the effective 
date of the claim is lost. In the event that the decision was so off 
base as to constitute clear and unmistakable error, it is against the 
interest of justice to disallow a revision of that decision, back to 
the date that it should have been granted.
    Because section 5104(c) of title 38 USC states that the only way to 
revise a final decision is to file a supplemental claim under section 
5108 of title 38 USC or regulations pursuant to this section, it 
vitiates the authority of section 5109A of title 38 USC and section 
7111 of title 38 USC.
    The VFW must have assurance from the Committee that nothing in 
these sections precludes a veteran from filing a request to revise a 
final rating decision containing a CUE, or filing a notice of 
disagreement or request for higher level review on such a request. 
Without this critical due process protection for veterans, the VFW 
believes that the entire framework for appeals reform fails.

Legacy Appeals

    Since the first discussions on appeals reform with VA, the VFW has 
been very clear that any changes to the system must be coupled with 
aggressive initiatives to adjudicate legacy appeals in a timely manner 
through both legislative authority and proper resourcing. The VFW had 
asked for off ramps to allow veterans with legacy appeals to opt into 
the new process, and we thank the Committee for including these off-
ramps in this legislation.
    In the 114th Congress, the VFW also supported an initiative to 
create a fully developed appeals process for veterans in the legacy 
system. Through fully developed appeals, veterans and their accredited 
advocates would have an opportunity to submit all relevant evidence and 
a statement of the argument at the time in which they file a notice of 
disagreement. The Committee included this in the legislation as a 
potential option for the Secretary of Veterans Affairs to exercise in 
helping to more quickly adjudicate legacy appeals.
    The VFW supports the intent of this position, but we question its 
value as written pertaining to legacy appeals already included in the 
appeals backlog. In its current form, it seems that a potential fully 
developed appeals process would only appeal to new appellants after 
enactment. This would likely only serve as a stop-gap for any 
appellants who file within the first six months of enactment of the 
legislation. The VFW would recommend amending the election criteria to 
allow for veterans with legacy appeals to elect into a proposed fully 
developed appeals process at any point after enactment.
    Finally, the VFW must stress the importance of properly resourcing 
BVA and VBA to adjudicate the legacy appeals backlog and the potential 
influx of supplemental claims and higher level review requests at the 
VA Regional Office. My predecessor in VFW National Veterans Service, 
Jerry Manar, used to say that VA liked to play Whack-a-Mole with its 
pending workload. When initial claims were backlogged, they 
concentrated resources on initial claims. This has since set off a 
chain reaction that has resulted in a backlog of appeals and other 
claim actions at the Regional Office level. Every time there is a 
crisis, VA has the habit of reallocating its resources to address the 
latest crisis. This only leads to other crises. VA must be properly 
resourced to manage its workload if we expect this new framework to 
succeed.

Planning and Reporting Requirements

    The VFW supports the inclusion of a 90-day report to Congress on 
VA's plans to address legacy appeals, implement its new system, and 
process claims in the new system in a timely manner. While this 
planning report may seem extensive, the VFW is very interested in the 
feedback that VA can provide on its plans to ensure that the new 
framework is designed to succeed.
    One of the most critical points that the VFW supports in the 
planning proposal is the requirement for VA to report on required 
resourcing and staffing levels to accomplish its new mission. The VFW 
is also interested in VA's estimates on total work load, processing 
times, and its communication plan to properly inform veterans of 
changes and criteria to take advantage of new options. The VFW also 
supports semiannual reports on implementation.
    The VFW understands the need for extensive reporting requirements 
and we agree with the Committee on many of the data points included in 
the legislation. However, we question the practicality of insisting 
that VA report on all 22 data points on a monthly basis. The VFW 
instead recommends that the Committee articulate the timeline on which 
VA would need to periodically report each data point. For example, the 
VFW believes that the data points included in Section 5, A through G 
are standard data points that VA should already be tracking and should 
be able to report out on a monthly basis.
    Next, data points H through K and U deal with supplemental actions 
on remanded decisions. Understanding the VA workflow, this may not be 
practical to report on a monthly basis, but instead on a quarterly 
basis to better analyze data and identify trends.
    Finally, data points L through V (omitting U) seem to be long term 
metrics that would be impractical to track on a monthly basis and would 
likely only be useful in identifying annual or semi-annual trends. For 
example, data point M is likely only to yield data once a significant 
number of veterans have submitted new and relevant evidence in 
supplemental claims to preserve their effective date over a span of 
several years.
    The VFW was also happy to see that the Committee is asking for 
extensive reporting from VA on legacy appeals. The VFW supports many of 
these data points, and has had similar questions about the appeals 
process over the years--particularly the disaggregated time that VA 
waits for a claimant to take action and the time a claimant waits for 
VA to take action. We believe that this report will help to better 
understand the pitfalls that led to the appeals backlog and help avoid 
them in the new framework.
    A modernized appeals system must be responsive to future needs of 
veterans. Veterans benefits date from the beginning of the United 
States, and our citizens and government have stepped up to care for 
veterans as the nature of war and society has changed. Judicial review 
of veterans benefits decisions has been in place for almost thirty 
years, and a decision this past week by the Federal Circuit in Monk v 
Shulkin recognized that veterans have a right to aggregate their 
appeals into class actions. While this decision does not directly 
affect the modernized appeals framework, it will also help to eliminate 
the ``hamster wheel'' appeals process, and will affect regulations 
handling new procedural directives from the Courts. Congress must 
maintain close oversight over the timely handling of appeals for 
veterans who have been waiting the longest. At the same time, the 
modernized appeals system also needs the oversight of Congress to 
continually improve the process. We believe the changes proposed in the 
legislation being considered today would go a long way in forming a 
more veteran centric process. But appeals do not exist in a vacuum, and 
the feedback we receive must drive improvements to the processes used 
by VA and stakeholders to obtain fair accurate decisions at the 
earliest point possible, and improve the quality of life for veterans 
and their families.
    The VFW is encouraged by the legislation you are considering today 
and strongly supports effforts to reform the claims and appeals system 
to build a more veteran-centric appeals process. For years, we have 
been stuck in the same place, afraid to take action out of fear we will 
make the wrong decision. The problem is that if we stay put, the 
situation will never improve. That is unacceptable for the veterans who 
deserve timely access to their earned benefits. The VFW believes it is 
time to improve this process. We encourage the Committee to include the 
VFW's recommendations when marking up this legislation, and we look 
forward to continuing to work with the Committee to advance these 
critical reforms.
    Mr. Chairman, this concludes my testimony. I will be happy to 
answer any questions you or the Committee members may have.

                                 
                       Statements For The Record

            MILITARY OFFICERS ASSOCIATION OF AMERICA (MOAA)
    CHAIRMAN ROE, RANKING MEMBER WALZ, and Members of the Committee, 
the Military Officers Association of America (MOAA) is pleased to 
present its views on legislation under consideration by the Committee, 
``Veterans Appeals Improvement and Modernization Act of 2017.''
    MOAA does not receive any grants or contracts from the federal 
government.
                           EXECUTIVE SUMMARY
    On behalf of our more than 350,000 members, MOAA thanks the 
Committee for holding this important hearing and for your continued 
support of our nation's veterans and their families. MOAA is especially 
grateful for the Committee's leadership in seeking views from a variety 
of stakeholders relevant to the VA appeals modernization.
    Initially, it is clear this legislation takes into consideration 
the comments and concerns of not only the veteran service organization 
community but also various other groups. MOAA is very appreciative to 
Representative Bost for these efforts.
    MOAA supports the legislation with the following recommendations:

      Allow direct submissions of additional evidence to the 
Board of Veterans' Appeals on the ``non-hearing option docket''
      Regarding reference to the three veterans service 
organizations with the most members, the qualifying factor should be 
changed from the most members to the veterans service organizations 
that file the most claims on behalf of claimants.
      The Board docket appeals processed under the Fully 
Developed Appeals program should be entered into the ``non-hearing 
option docket.''
                           VA Appeals Reform
    MOAA supports efforts by Congress and the Department of Veterans 
Affairs to modernize the claims process, including appeals. The 
procedural basis set forth in this legislation will eliminate outdated 
aspects of the existing claims process, such as the Statement of the 
Case and the VA Form 9. Those additional bureaucratic hurdles made the 
claims process confusing, unnecessarily long, and extremely 
inefficient. MOAA greatly appreciates the efforts of this Committee in 
hosting roundtable discussions, hearings, and introducing legislation 
to address this outdated system.
                   Board of Veterans' Appeals Dockets
    This bill sets forth that the Board of Veterans' Appeals shall 
maintain two dockets, one for claimants requesting a hearing before the 
Board and the other for claimants not requesting a hearing before the 
Board.
    MOAA supports allowing claimants the opportunity to submit evidence 
to the Board directly. This allows claimants with legally complex 
claims to have a Veterans Law Judge consider that evidence in 
conjunction with the questions of law instead of cycling through the 
Agency of Original Jurisdiction (AOJ), where the AOJ may lack the legal 
acumen to adequately resolve the claim.
    MOAA recommends the legislation be modified to provide that 
claimants submitting evidence directly to the Board be placed on the 
``non-hearing docket.'' This is the closest docket fit to their 
circumstances because the claimant is not requesting a hearing. 
Further, regardless of whether a claimant's appeal includes additional 
evidence or not, the Veterans Law Judge will be required to review 
evidence within the record. In other words, if a claimant merely 
appeals without submitting additional evidence, the Board must still 
review all existing evidence in the record. Thus, the choice not to 
submit additional evidence does not prevent the Board from having to 
review evidence.
    We do not recommend the other option of placing these appeals on 
the ``hearing docket,'' as this would disproportionately disadvantage 
the claimant. During roundtable discussions leading up to appeals 
reform legislative proposals, VA officials stated that the ``hearing 
docket'' would be much slower than the ``non-hearing docket.'' It is 
unjust to force claimants not requesting hearings to wait behind those 
requesting hearings for the Board to address their appeals where it 
does not require any additional work of the Veterans Law Judge to 
consider the additional evidence.
    VA has expressed concerns that including claimants with additional 
evidence amongst those without additional evidence on the same docket 
would confuse the ``feedback loop,'' but we believe this is manageable. 
The feedback loop permits the Board to provide input to the AOJ 
regarding errors the AOJ committed in the original adjudication of the 
claim. There appears to be no reason, however, that the Board could not 
simply exclude the claims with additional evidence from the feedback 
loop and still provide very useful feedback to the AOJ from the 
remaining claims.
           Collaboration with Veterans Service Organizations
    MOAA greatly appreciates that the legislation includes mandates for 
VA to collaborate with and give weight to the inputs of veterans 
service organizations. MOAA recommends, however, that references to 
``the three veterans service organizations with the most members'' be 
modified to ``the three veterans service organizations that file the 
most claims on behalf of claimants.'' Veterans service organizations 
serve many functions in the veteran community, not exclusively confined 
to filing VA benefits claims. Merely because a veterans service 
organization has a large number of members does not necessarily mean 
the organization is intimately familiar with the VA claims process. A 
more reliable gauge of a veterans service organization's value to the 
process is the number of VA claims filed by the organization. The 
Veterans Benefits Administration already tracks the number of claims 
filed by each veterans service organization, making this information 
readily available to VA.
                        Fully Developed Appeals
    MOAA supports granting the Secretary the authority to carry out a 
fully developed appeals program. A fully developed appeal option would 
allow a claimant to expedite a claim to the Board with all evidence 
needed for the appeal. This goal is consistent with the overall intent 
of VA appeals modernization.
    This process would also be almost identical to the process for a 
claimant participating in the modernized appeals process who chooses to 
submit additional evidence for the Board's consideration. For that 
reason, MOAA recommends that appeals processed using this option be 
docketed in the ``non-hearing option.'' This would prevent the need for 
the Board to maintain a third docket, as the legislation currently 
contemplates. A third docket with varying processing rules would be 
very confusing to claimants in understanding whether their claim is 
being handled properly.
    MOAA thanks the Committee for considering this important 
legislation and for your continued support of our veterans and their 
families.

                                 
  National Association of State Directors of Veterans Affairs (NASDVA)
 RE: Veterans Appeals Improvement and Modernization Act of 2017 (Draft)
    Dear Chairman Roe and Ranking Member Walz:

    On behalf of the National Association of State Directors of 
Veterans Affairs (NASDVA), thank you for your work and support on 
behalf of our Nation's Veterans and for your commitment to modernizing 
the Veterans Affairs Appeals process. NASDVA is honored to have been a 
part of the working group, including VA and a very wide group of our 
Nation's Veterans Service Organizations, whose work resulted in 
language and legislation that passed in the United States House of 
Representatives last year. The work and cooperation last year that 
yielded workable and sustainable Appeals Reform is unprecedented and 
should be the model for getting things done in the future. The process 
included stakeholders who are actually ``on the ground'' serving 
Veterans every day. We are hopeful that any final Appeals Modernization 
legislation will accurately reflect the work and majority agreement 
reached last year.
    In reviewing the discussion draft (Veterans Appeals Improvement and 
Modernization Act of 2017) provided to NASDVA on Monday, April 24, 
2017, we submit the following comments:

    1.There are significant content changes within the discussion draft 
that NASDVA had no knowledge of or discussion on until receiving the 
draft on April 24, 2017. We are disappointed in that as it has been the 
framework and cooperation of many stakeholders that enabled this 
vitally important initiative (for our Veterans) to advance to where it 
is now.

    2.NASDVA has been and continues to be concerned and cautions 
against any language that may be intended to expand (paid) attorney's 
fees under the ``guise'' of preserving Veterans' rights. (Reference: 
NASDVA letter to Senate Veterans Affairs Committee dated September 23, 
2016). We are concerned about language, as to effective date after the 
courts, in the discussion draft. The following items of discussion are 
germane to that point:

         a. An intentional feature of the design developed 
collaboratively with Appeals Working Group was that Veterans would not 
be encouraged to initiate judicial review when there is an efficient 
administrative remedy available.

         b. Allowing effective date protection after the Courts could 
provide incentive for filing an appeal to the Court for the sole 
purpose of generating attorney fees, notwithstanding the fact that a 
more immediate remedy is available in the administrative process.

             (1)As we understand, attorney fees would be available for 
representing claimants in the higher-level review, supplemental claim, 
and appeal lanes.

             (2)A reason behind effective date protection after the 
Courts (for paid attorneys) could be that it would delay resolution and 
generate more past due benefits; advantageous for attorneys but not 
good for Veterans.

             (3)As NASDVA has maintained previously, judicial review 
should be reserved for Veterans who believe that they have exhausted 
their administrative remedies and have a meritorious legal issue.

             (4)There is currently no effective date protection if the 
Court of Appeals for Veterans Claims (CAVC) affirms a Board of Veterans 
Appeals decision. The improved process, reflected in the collaborative/
cooperative VA/stakeholder proposal, is not a change from the current 
system. Just as currently exists, in the new process, if CAVC vacates 
and remands the Board decision, the effective date is protected. 
Veterans lose no rights, as they exist in current law, in the Appeals 
Working Group proposal.

    There has been much work that has gone into developing meaningful 
Appeals Modernization/Reform over the past year and a half. The work 
has focused, putting the Veteran first, on a system that seeks the best 
possible and timely outcome at the lowest level that is both 
advantageous to the Veteran and the American taxpayer. We find it 
disheartening that there continues to be an effort to insert language 
that (appears) to be intended to support the business model of (paid) 
attorneys. We sincerely hope attention will be refocused on making sure 
the largest number of Veterans are served in the most efficient manner 
possible.
    NASDVA sincerely appreciates this opportunity to submit our views 
on the current Veterans Appeals Improvement and Modernization draft.

    Sincerely,

    SIGNED

    Randy Reeves
    President
    NASDVA

                                 
       NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC. (NOVA)
    NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC.
    Chairman Roe, Ranking Member Walz, and members of the Committee, 
the National Organization of Veterans' Advocates (NOVA) would like to 
thank you for the opportunity to offer our views on the discussion 
draft entitled Veterans Appeals Improvement and Modernization Act of 
2017.
    NOVA is a not-for-profit 501(c)(6) educational membership 
organization incorporated in the District of Columbia in 1993. NOVA 
represents more than 500 attorneys and agents assisting tens of 
thousands of our nation's military veterans, their widows, and their 
families seeking to obtain their earned benefits from VA. NOVA works to 
develop and encourage high standards of service and representation for 
all persons seeking VA benefits. NOVA members represent veterans before 
all levels of VA's disability claims process, and handle appeals before 
the U.S. Court of Appeals for Veterans Claims (CAVC) and U.S. Court of 
Appeals for the Federal Circuit (Federal Circuit). In 2000, the CAVC 
recognized NOVA's work on behalf of veterans with the Hart T. Mankin 
Distinguished Service Award. NOVA operates a full-time office in 
Washington, DC.
    Attorneys and agents handle a considerable volume of appeals at 
BVA. In FY 2015, for example, attorneys and agents handled 14.9% of 
appeals before BVA. This number was fourth only behind Disabled 
American Veterans (28.1%), State Service Officers (16.5%), and American 
Legion (15%). U.S. Department of Veterans Affairs, Board of Veterans' 
Appeals Annual Report Fiscal Year 2015 at 27.
    NOVA members have been responsible for significant precedential 
decisions at the CAVC and Federal Circuit. In addition, as an 
organization, NOVA has advanced important cases and filed amicus briefs 
in others. See, e.g., Henderson v. Shinseki, 562 U.S. 428 
(2011)(amicus); NOVA v. Secretary of Veterans Affairs, 710 F.3d 1328 
(Fed. Cir. 2013)(addressing VA's failure to honor its commitment to 
stop applying an invalid rule); Robinson v. McDonald, No. 15-0715 (July 
14, 2016)(CAVC amicus).
    NOVA will not oppose the bill if the effective date protection 
extended to court proceedings remains in the legislation. In addition, 
as detailed below, because of VA's continued disregard for NOVA's 
status as a stakeholder in this process, we ask the Committee to 
include NOVA as a stakeholder considered ``appropriate'' under the 
statute for purposes of the collaboration necessary to certify the 
program is ready to implement.
                               BACKGROUND
    In March 2016, NOVA was invited to participate with a group of 
stakeholders in a three-day summit, and at occasional meetings 
thereafter at VA's convenience, to discuss VA's appeals reform 
proposal. The framework provided by VA, and modified during the course 
of these meetings, became the basis of H.R. 5083, VA Appeals 
Modernization Act of 2016. NOVA provided a written statement detailing 
its views on that bill to the Committee in May 2016. National 
Organization of Veterans' Advocates, Inc., Statement for the Record 
Before the House Committee on Veterans' Affairs Concerning H.R. 5083, 
the VA Appeals Modernization Act of 2016 (May 24, 2016). Because NOVA 
expressed disagreement with some of the proposal's features, VA 
repeatedly excluded NOVA from continuing discussions and important 
dialogue amongst the summit participants.
    NOVA thanks the Committee for its time and effort to address the 
concerns expressed by NOVA and other stakeholders, as well as the 
General Accountability Office (GAO), in the current discussion draft. 
We detail additional considerations below that should be addressed to 
ensure preservation of the veteran-friendly benefits process developed 
and preserved by Congress for many decades.
                          STATUTORY FRAMEWORK
                                 NOTICE
    The declining quality of VA rating decisions and notice has been 
cited by stakeholders numerous times over the years as the primary 
problem in the claims process. The participants in VA's appeals summit 
agreed that detailed notice of the rating decision is critical to 
making an informed decision regarding further review. Proper notice 
allows a veteran to understand the reasons for the underlying rating 
decision and enables an advocate to provide a veteran with the best 
possible advice on the evidence needed to prove a claim. Because the 
new framework detailed in this bill would offer a veteran three choices 
after a denial of benefits, quality notice is critical.
    The proposed language to amend 38 U.S.C. Sec.  5104 is an important 
first step in reform, but only if properly implemented by VA. VA will 
need to commit to extensive training of its regional office employees 
to provide adequate notice and well-written decisions. Without it, the 
new process could result in another backlog at the local level.
    Recommendations: If enacted, we would encourage the Committee to 
conduct detailed oversight of this process throughout its 
implementation. While the legislation relieves VA from providing the 
statutorily-mandated notice after a veteran files a supplemental claim, 
it is critical that VA be required to provide the veteran with adequate 
notice of the decision on a supplemental claim, i.e., identification of 
the elements not satisfied leading to the denial. This burden should be 
somewhat lighter due to the addition of section 5104A binding VA to its 
prior favorable findings.
                       EFFECTIVE DATE PROTECTION
    As NOVA noted in the 114th Congress, this new framework removes 
many procedural and due process protections for veterans. To offset the 
removals of some of these protections and eliminate ``effective date 
traps,'' VA proposed the primary benefit conferred to veterans under 
its original proposal: the ability to preserve the effective date of a 
claim denied in a BVA decision by filing a ``supplemental claim'' 
within a year of that denial (with no limit to the number of times the 
veteran can avail himself of this option).
    NOVA testified last year that it was inconsistent to limit 
effective date protection solely to decisions of the agency of original 
jurisdiction and BVA, and fail to provide that same one-year period 
after a final CAVC decision. Such a limitation could result in far 
fewer veterans exercising their hard-fought right of judicial review 
because of concerns over losing effective date protection. For example, 
if BVA declines to find VA failed to fulfill its duty to assist by 
obtaining an adequate examination for a veteran, that veteran may feel 
required to obtain a costly private opinion in an effort to preserve an 
effective date, as opposed to seeking judicial review to enforce what 
VA was required to do all along.
    Judicial oversight is critical in the implementation of a new 
process, especially given the shrinking reach of the duty to assist. 
NOVA applauds the inclusion of effective date protection for veterans 
after a court decision and urges the Committee to retain this language 
in spite of VA's ``technical assistance'' intended to ``protect the 
consensus agreement.''
    Recommendations: This legislation codifies an existing right of 
veterans under 38 C.F.R. Sec.  3.156(b). NOVA recommends the provisions 
of 38 C.F.R. Sec.  3.156(c) also be codified in the statute as an 
important protection for the effective dates of claims for veterans who 
find additional service records after an original claim.
                             DUTY TO ASSIST
    As noted above, veterans gain effective date protection in a new 
system. In exchange, BVA is relieved of an aspect of its duty to assist 
the veteran, as amended in 5103A(e): ``The Secretary's duty to assist 
under this section shall apply only to a claim, or supplemental claim, 
for a benefit under a law administered by the Secretary until the time 
that a claimant is provided notice of the agency of original 
jurisdiction's decision with respect to such a claim, or supplemental 
claim, under section 5104 of this title.'' The understood purpose 
behind this provision is to relieve BVA of the obligation to remand for 
additional development due to a duty to assist triggered by evidence 
submitted after the agency's decision.
    Recommendations: This provision should be clarified to ensure the 
restriction on the duty to assist at BVA is limited to a duty triggered 
by evidence submitted after the agency's decision and does not apply to 
affirmative duties required to be performed by BVA in the conduct of 
its adjudication process.
                   NEW AND RELEVANT EVIDENCE STANDARD
    During the course of the appeals summit meetings, the stakeholders 
generally agreed the ``new and material'' standard should be 
eliminated. There was significant discussion on this topic, with the 
stakeholders generally agreeing the standard should be ``new'' evidence 
only. Instead of following this consensus, VA inserted the term 
``relevant'' to replace ``material.''
    Although VA officials have repeatedly stated the ``relevant'' 
evidence standard would be easier to meet than the ``material'' 
evidence standard, NOVA maintains merely trading ``relevant'' for 
``material'' will not significantly reduce the adjudication burden on 
VA. Removing ``relevant'' allows VA to adjudicate the merits every time 
and eliminates the need to make a threshold determination.
    The definition of relevant evidence - ``evidence that tends to 
prove or disprove a matter in issue'' - on its face is more stringent 
than the current definition of ``material'' evidence (``existing 
evidence that, by itself or when considered with previous evidence of 
record, relates to an unestablished fact necessary to substantiate the 
claim''). Furthermore, what effect a ``relevant'' evidence standard 
would have on veterans is completely unknown, whereas extensive case 
law exists concerning the ``material'' evidence standard. If VA truly 
intends to create an evidentiary burden easier to meet than 
``material'' evidence (which we support), the best way to ensure that 
is to simply require ``new'' evidence.
    Recommendations: The words ``and relevant'' should be deleted from 
38 U.S.C. Sec.  5108 and the definition of ``relevant'' found at 38 
U.S.C. Sec.  101(35) should be stricken. In the alternative, the 
standard should remain as it is currently - ``new and material.'' If 
the ``relevant'' standard is retained, we request Congress make an 
unambiguous statement of its intent that this standard be interpreted 
as a lower burden than current law.
                      ABILITY TO CHANGE ``LANES''
    NOVA appreciates the added language of section 5104C(2)(A), (B), 
and (C) that provides guidance regarding a veteran's right to take 
various actions permitted by statute at different times and to take 
different actions on different claims.
    Recommendations: This provision should make clear the time period 
is tolled while the veteran is in a particular lane, so that if he 
chooses to withdraw from a lane after the expiration of the original 
one-year period and seek relief in a different lane, his original 
effective date is preserved.
                         NOTICE OF DISAGREEMENT
    NOVA appreciates inclusion of a more reasonable standard for 
veterans when filing the notice of disagreement (NOD) by reverting back 
to the requirement that a veteran ``shall identify the specific 
determination with which the claimant disagrees.''
    Recommendations: A provision should be added requiring VA to 
provide the claimant with notice and an opportunity to cure the defect 
before BVA dismisses an appeal due to the veteran's failure to specify 
the determination with which she disagrees.
                    SUBMISSION OF EVIDENCE ON APPEAL
    Regarding evidence in the non-hearing docket, section 7113(b)(2)(B) 
puts a burden on veterans at the time an NOD is filed by requiring the 
veteran to submit evidence with the NOD or within 90 days, and make an 
election for a hearing. Given that veterans often are unrepresented 
until after the filing of an NOD, there is no reason to require that 
irreversible legal decisions be made at that exact moment. This 
provision is too restrictive; if the case is waiting to be reviewed by 
BVA, it is more veteran friendly (and does not unduly burden BVA) for 
that period to be open until the decision is made.
    Recommendations: The veteran should be permitted to submit evidence 
or request a BVA hearing up until the date of BVA's decision.
                           DOCKET MANAGEMENT
    NOVA maintains that requiring a veteran who wants to submit 
additional evidence to BVA should not be required to go into the 
hearing docket. BVA currently has an enormous backlog of hearing 
requests - approximately five to six years - and discussion of 
implementation generally has not included VA's plans for reducing that 
backlog. It is not veteran friendly to force an appellant to wait for 
significant periods of time if he is not interested in a hearing, but 
would like to submit evidence.
    NOVA appreciates the inclusion of a requirement in section 7107 
that the Secretary provide a report describing the docket ``for cases 
in which no hearing before the Board of Veterans' Appeals is requested 
in the notice of disagreement but the appellant requests, in the notice 
of disagreement, an opportunity to submit additional evidence.'' NOVA 
urges the Committee to require such a docket.
    Recommendations: It should be made clear that a veteran can move 
into the non-hearing docket without penalty if he determines he no 
longer wants a hearing after the initial request.
                         IMPLEMENTATION ISSUES
    Successful implementation of this legislation will be key if it is 
truly to be the positive change veterans deserve and VA promises. 
Successful execution of VA's proposed process hinges on its ability to 
consistently meet its goals of adjudicating and issuing decisions in 
the 125-day window identified in its ``middle lane'' and deciding 
appeals within the one-year period before BVA. As demonstrated with the 
prior backlog of original claims and scheduling of medical 
appointments, VA often struggles to meet its own internal goals to the 
detriment of veterans.
    At the recent roundtable held by DAMA Subcommittee Chairman Bost 
and Ranking Member Esty, GAO elaborated on its concerns with VA's 
ability to implement a new process while resolving legacy appeals. U.S. 
Government Accountability Office, VA Disability Benefits: Additional 
Planning Would Enhance Efforts to Improve the Timeliness of Appeals 
Decisions (GAO-17-234)(March 2017)(hereinafter GAO Report). This 
concern was shared by some of the stakeholders.
    Therefore, the extensive reporting requirements and requirement 
that the Secretary certify VA's readiness to implement the new system 
are critical. These requirements must remain in the legislation. 
Because VA stated it cannot pilot this system as recommended by GAO, 
congressional oversight is necessary. The legislation has far-reaching 
implications; many of them likely unforeseen until the system is 
implemented.
    Recommendations: As noted above, NOVA has been included as a 
stakeholder when it has been convenient for VA. Bringing the major 
organizations together initially allowed VA to state there was full 
consensus on the framework; when NOVA disagreed with some features of 
last session's bill, VA declined to include NOVA in much of the ongoing 
discussion and negotiations with the organizations that participated in 
the original summit. As noted above, given the high percentage of 
involvement by attorneys and agents at BVA and the CAVC, we ask the 
Committee to include NOVA as a stakeholder considered ``appropriate'' 
under the statute for purposes of the collaboration necessary to 
certify the program is ready to implement.
    Furthermore, because this system is predicated on veterans making 
significant choices in relatively short periods of time, VA must commit 
to providing attorneys and agents, and their professional staff 
members, with consistent electronic access to claimants' files. To its 
credit, VA agreed to provide attorneys and agents with remote access 
last fall. However, to allow veterans to fully access their right to 
representation and make an informed choice as to how to proceed when 
faced with a denial, access must be expanded and improved.
    NOVA urges Congress to fully fund VA's information technology 
budget requests, especially innovations needed for VBMS and 
modernization of BVA systems. Modern IT systems, to include electronic 
case filing systems common in other venues, are necessary tools that 
benefit veterans, their advocates, and VA employees.
                          ADDITIONAL CONCERNS
    While focusing solely on process, the proposal is devoid of reform 
to the foundational underpinning of the claims adjudication and appeals 
process, i.e., the need for an adequate medical examination and 
opinion. At the January 2013 hearing addressing the appeals process, 
BVA acknowledged the problem: ``The adequacy of medical examinations 
and opinions, such as those with incomplete findings or supporting 
rationale for an opinion, has remained one of the most frequent reasons 
for remand.'' Why Are Veterans Waiting Years on Appeal?: A Review of 
the Post-Decision Process for Appealed Veterans' Disability Benefits 
Claims: Hearing Before the Subcommittee on Disability Assistance and 
Memorial Affairs of the House Committee on Veterans' Affairs, 113th 
Congress, 1st Sess. 23 (2013)(prepared statement of Laura H. Eskenaki, 
Executive in Charge, Board of Veterans' Appeals). Two years later, the 
Subcommittee on Disability Assistance and Memorial Affairs requested 
appeals data from VA, to include the top five remand reasons for the 
six fiscal years between 2009-2014. While not particularly detailed, in 
five of the six years, ``nexus opinion'' was listed as a top five 
reason. Department of Veterans Affairs (VA) Appeals Data Requested by 
House Committee on Veterans' Affairs Subcommittee on Disability 
Assistance and Memorial Affairs (January 2015). Other consistently 
reported reasons included ``incomplete/inadequate findings,'' ``current 
findings (medical examination/opinion),'' and ``no VA examination 
conducted.'' Id.
    VA often cites the veteran's submission of evidence as triggering 
the need for additional development. But see GAO Report at 25 (``VA 
lacks data to inform and confirm its understanding of the root causes 
of lengthy time frames. For example, VA lacks complete historical data 
on the extent to which submission of new evidence and multiple 
decisions and appeals occur, and thus cannot determine the impact of 
its current, open-ended process on appeals decision timeliness.''). The 
reality is VA has consistently demonstrated difficulty fulfilling its 
fundamental obligation to provide veterans with adequate medical 
examinations and opinions in the first instance. Without substantive 
reform to this process, to include consideration of a greater role for 
private and treating physician evidence, it is unlikely procedural 
reform alone can solve systemic problems.
                               CONCLUSION
    NOVA shares the concerns of VA and the Committee that veterans wait 
too long for a final and fair decision on appeal. NOVA welcomes the 
opportunity to work with VA and this Committee to ensure a fair and 
comprehensive reform of the system. NOVA further recommends adoption of 
the revisions outlined in our testimony. Thank you for allowing us to 
present our views on this legislation.

    For more information:

    NOVA staff would be happy to assist you with any further inquiries 
you may have regarding our views on this important legislation. For 
questions regarding this testimony or if you would like to request 
additional information, please feel free to contact Diane Boyd Rauber 
by calling NOVA's office at (202) 587-5708 or by emailing Diane 
directly at [email protected].

                                 
            NATIONAL VETERANS LEGAL SERVICES PROGRAM (NVLSP)
                           BARTON F. STICHMAN
                                  AND
                            RONALD B. ABRAMS
                       JOINT EXECUTIVE DIRECTORS
EXECUTIVE SUMMARY
    The Veterans Appeals Improvement and Modernization Act of 2017 
provide a far-reaching restructuring of the VA administrative appeals 
process. It contains many positive features that are likely to decrease 
appeal times while providing claimants with various options for pursing 
their appeals. As with any substantial change to a complex system, 
there will clearly be effects that we cannot now predict. But given 
that the current appeals process is not functioning well, we have 
ultimately concluded that the proposed legislation - even without being 
able to predict all of its effects - is a necessary step.
    However, NVLSP opposes some of the substantive changes to the draft 
bill that VA is seeking under the guise of ``technical amendments.'' 
First, VA seeks to eliminate subsection (a)(2)(E) from the draft bill's 
amendments to 38 U.S.C. Sec.  5110. This subsection appears on lines 
10-14 of page 13 of the draft bill. This subsection is critically 
important and NVLSP's support of the draft bill is contingent on this 
provision remaining intact.
    If the Board of Veterans' Appeals denies a claim under the draft 
bill - regardless whether proposed subsection (a)(2)(E) remains or is 
eliminated--the veteran would be required, in order to preserve the 
earliest effective date, to choose between appealing to the CAVC and 
filing a supplemental claim with the RO. Eliminating subsection 
(a)(2)(E) would be unjust because it would put a heavy thumb on the 
scale when veterans make this choice. It would strongly discourage 
veterans from appealing to the CAVC in favor of filing a supplemental 
claim.
    NVLSP also opposes VA's effort to amend Section 3 of the draft 
bill, which wisely requires VA to report and the Comptroller General of 
the United States to assess VA's plans for processing appeals on legacy 
claims. The VA obviously needs to make choices in allocating resources 
between processing legacy appeals and processing new appeals. VA's 
precise plans on this allocation and its effects on timeliness should 
be exposed to public view and analysis. Its desire for technical 
amendments that would undermine public disclosure and analysis should 
be rejected.

    Mr. Chairman and Members of the Committee:

    Thank you for inviting our organization to submit a statement for 
the record concerning the ``Veterans Appeals Improvement and 
Modernization Act of 2017,'' an important legislative effort to reform 
the veterans claims and appeals process in the United States Department 
of Veterans Affairs (VA). (Throughout the rest of this statement, we 
refer to this document as ``the draft bill'').
    The National Veterans Legal Services Program (NVLSP) is a nonprofit 
veterans service organization founded in 1980 that has been providing 
free legal representation to veterans and assisting advocates for 
veterans for the last 37 years. NVLSP has represented veterans and 
their survivors at no cost on claims for veterans benefits before the 
VA, the U.S. Court of Appeals for Veterans Claims (CAVC), and other 
federal courts. As a result of NVLSP's representation, the VA has paid 
more than $4.6 billion in retroactive disability compensation to 
hundreds of thousands of veterans and their survivors.
    NVLSP publishes numerous advocacy materials, recruits and trains 
volunteer attorneys, trains service officers from such veterans service 
organizations as The American Legion, and Military Order of the Purple 
Heart in veterans benefits law, and conducts local outreach and quality 
reviews of the VA regional offices on behalf of The American Legion. 
NVLSP is one of the four veterans service organizations that comprise 
the Veterans Consortium Pro Bono Program, which has, since 1992, 
recruited and trained volunteer lawyers to represent veterans who have 
appealed a Board of Veterans' Appeals decision to the CAVC without a 
representative. In addition to its activities with the Pro Bono 
Program, NVLSP has trained thousands of veterans service officers and 
lawyers in veterans benefits law, and has written educational 
publications that thousands of veterans advocates regularly use as 
practice tools to assist them in their representation of VA claimants.
                             The Draft Bill
    Since the beginning of last year, NVLSP has participated with a 
workgroup of veterans service organizations convened by the VA to find 
common ground on a set of reforms to address the serious dysfunctions 
that exist in the current VA appeals process. The text of the draft 
bill takes the text of the draft bill that VA developed last year and 
adds additional language that NVLSP welcomes and believes should be 
kept intact.
    We believe the draft bill is a welcome attempt to address the 
serious problems veterans and their dependents face in processing 
appeals in the VA. Before we address its merits in more detail, we 
begin with a general point that is important to remember. The proposed 
structuring of the administrative appeals process envisioned under the 
draft bill is far-reaching. As with any change to a complex system, 
there will clearly be effects that we cannot now predict. We have 
considered this reality quite seriously. If the system were functioning 
generally well, a concern with unintended consequences might be 
sufficient to oppose such a comprehensive change in the system, at 
least without first conducting a pilot program. But we are not dealing 
with a well-functioning system. Given that state of affairs, we have 
ultimately concluded that the draft bill - even without being able to 
predict all of its effects - is a necessary step. We support it, as 
long as Congress rejects the attempts that we understand VA is 
spearheading to make substantive changes to the additional language 
that appears in the draft bill that was not contained in the bill that 
VA drafted and supported last year.

I. POSITIVE FEATURES OF THE DRAFT BILL

    We briefly highlight the significant positive features of the 
changes envisioned under the draft bill. Taken together, we believe 
these features will decrease appeal times while providing claimants 
with various options for pursing their appeals. The most significant 
positive features in the draft bill are:

      It provides for enhanced ``notice letters'' to veterans 
and other claimants concerning the denial of their claims. Enhanced 
notice is critically important to veterans as they make determinations 
about how to proceed when they are dissatisfied with a VA decision.
      It also eliminates the requirements under current law 
concerning the preparation of a Statement of the Case (SOC), the 
veteran's corresponding need to complete an additional step to perfect 
an appeal to the Board (i.e., VA Form 9) and VA's subsequent need to 
certify the appeal by completing VA Form 8. While there may have been a 
time at which the SOC served a useful function in this system, the 
enhanced ``notice letters'' required by the proposal eliminate the need 
for an SOC. Thus, the SOC process serves only to delay the processing 
of claims.
      It lowers the standard necessary for re-opening a claim 
under Section 5108. The current standard of ``new and material 
evidence'' is replaced with ``new and relevant evidence.'' The lowering 
of the standard is critically important. In addition, and as we discuss 
in more detail below, the revised Sections 5108 and 5110 will allow 
veterans to obtain earlier effective dates in many circumstances than 
they would be able to do under the current version of this provision.
      It allows veterans a meaningful choice when they appeal 
to the Board of Veterans' Appeals (Board). A veteran may elect to forgo 
the submission of new evidence and a hearing in cases in which he or 
she determines such an approach is best. This would provide for more 
expeditious treatment of such appeals. On the other hand, a veteran can 
elect to proceed on a track in which the submission of new evidence and 
a hearing is allowed. This dual-track approach recognizes the reality 
that not all appeals are alike.
      It allows a claimant to seek the assistance of a lawyer 
for pay after an initial denial but before the filing of a Notice of 
Disagreement (NOD). This is a change from current law in which a lawyer 
may not charge a fee before the filing of an NOD. While seemingly a 
small change, we believe this is significant because the structure of 
the proposed new system provides claimants with myriad ways in which to 
proceed. Advice to such claimants will be critical and the proposed 
change allows more options for that advice.
      We believe the draft bill also reduces the means by which 
the VA can ``develop to deny.'' NVLSP has reviewed many regional office 
and BVA cases in which the existing record before the VA supports the 
award of benefits, but instead of deciding the claim based on the 
existing record, VA has delayed making a decision on the claim by 
taking steps to develop additional evidence for the apparent purpose of 
denying the claim. Certain aspects of the current proposal - for 
example, the restriction on the application of the duty to assist at 
the Board - will likely reduce such actions.

II.THE NEED TO RESIST VA'S EFFORTS TO AMEND THE DRAFT BILL UNDER THE 
    GUISE OF PROPOSING TECHNICAL AMENDMENTS
  A. The Change VA Wants to Discourage Veterans From Appealing to the 
                                  CAVC
    We understand that one of the ``technical amendments'' supported by 
VA is to eliminate subsection (a)(2)(E) from the draft bill's 
amendments to 38 U.S.C. Sec.  5110. This subsection appears on lines 
10-14 of page 13 of the draft bill. This subsection is critically 
important and NVLSP's support of the draft bill is contingent on this 
provision remaining intact.
    Proposed subsection (a)(2)(D) would allow a veteran to file a 
Section 5108 supplemental claim which preserves the earliest possible 
effective date if the veteran receives a Board of Veterans' Appeals 
(BVA) denial and files the supplemental claim within one year of the 
BVA decision. Proposed subsection (a)(2)(E) mirrors proposed subsection 
(a)(2)(D) by allowing a veteran to file a Section 5108 supplemental 
claim which preserves the earliest possible effective date if the 
veteran loses his appeal to the Court of Appeals for Veterans Claims 
(CAVC) or a higher court and files the supplemental claim within one 
year of the final court denial. The VA supports proposed subsection 
(a)(2)(D), but wants to eliminate proposed subsection (a)(2)(E).
    If the BVA denies a claim under the draft bill - regardless whether 
proposed subsection (a)(2)(E) remains or is eliminated--the veteran 
would be required, in order to preserve the earliest effective date, to 
choose between appealing to the CAVC and filing a supplemental claim 
with the RO. Eliminating subsection (a)(2)(E) would be unjust because 
it would put a heavy thumb on the scale when veterans make this choice. 
The veteran would have nothing to lose by filing a supplemental claim 
within one year of the BVA denial because if the supplemental claim is 
denied, the veteran can keep the right to retroactive benefits alive by 
appealing. But if subsection (a)(2)(E) is eliminated, the veteran has a 
lot to lose by appealing to the CAVC. If the judicial appeal results in 
the court affirming the BVA's denial (as occurs in approximately 30% of 
all appeals), the veteran's right to retroactive benefits is lost 
forever. For a disabled veteran, this can mean losing the opportunity 
for tens of thousands of dollars.
    The explanation we received from VA for VA's objection to 
subsection (a)(2)(E) is that ``it is contrary to VA policy interest in 
encouraging dissatisfied claimants to stay within VA unless it is truly 
necessary to go to a higher court.'' The flip side of this statement is 
the desire to discourage veterans from appealing to the CAVC, and 
discouraging appeals to the CAVC is exactly what eliminating subsection 
(a)(2)(E) would do. Veterans are not omniscient. At the time they have 
to choose between appealing to the CAVC and filing a supplemental 
claim, they cannot know whether an appeal to the CAVC would be 
successful. In the 120 days they have to decide whether to appeal a BVA 
decision to the CAVC, they also will be unlikely to know if ``it is 
truly necessary to go to a higher court,'' as the VA puts it.
    If subsection (a)(2)(E) is eliminated, the safest course of action 
would be to file a supplemental claim. The unfortunate result of VA's 
attempt to place a heavy thumb on the scale would be that veterans who 
should appeal to the CAVC will not. Instead, they will file a 
supplemental claim that will unnecessarily prolong the time the 
veteran's claim is on the hamster wheel. NVLSP strongly supported the 
Veterans' Judicial Review Act of 1988. We oppose this unwise effort to 
discourage veterans from appealing to the court that this important Act 
created.
 B. VA's Efforts to Escape Oversight of Its Processing of Legacy Claims
    Section 3 of the draft bill wisely requires VA to report and the 
Comptroller General of the United States to assess VA's plans for 
processing appeals on legacy claims. This is a critical issue. NVLSP 
would have preferred that the draft bill structure the VA's decision-
making on how to allocate its resources between new appeals and legacy 
appeals. But at least Section 3 would expose the VA's plans on this 
issue to public view and Comptroller General analysis.
    The technical amendments to Section 3 supported by VA would 
significantly dilute this requirement. Ironically, the VA's explanation 
for these technical amendments undermines, rather than support their 
position. VA admits that it ``has established a timeliness goal average 
of 365 days in the Board non-hearing lane option'' for new appeals. VA 
also candidly states that it ``does not have an established timeliness 
goal for legacy appeals.'' The VA obviously needs to make choices in 
allocating resources between processing legacy appeals and processing 
new appeals. VA's precise plans on this allocation and its effects on 
timeliness should be exposed to public view and analysis. Its desire 
for technical amendments that would undermine public disclosure and 
analysis should be rejected.
                               Conclusion
    Thank you for this opportunity to present our views, and we would 
be pleased to respond to any questions that Members of the Committee 
may have.

    Contact Information:

    National Veterans Legal Services Program
    1600 K Street, N.W.
    Suite 500
    Washington, DC 20016
    (202) 265-8305
    [email protected]
    [email protected]

    Veterans Law Institute

    Stetson University College of Law
    1401 61st Street South
    Gulfport, FL 337037
    (727) 562-7360
    [email protected]

                                 
                  PARALYZED VETERANS OF AMERICA (PVA)
    Chairman Roe, Ranking Member Walz, and members of the Committee, 
Paralyzed Veterans of America (PVA) would like to thank you for the 
opportunity to offer our views on the draft bill entitled, ``Veterans 
Appeals Improvement and Modernization Act of 2017.''
                         Initial Considerations
    PVA employs a highly-trained force of over 70 service officers who 
develop veterans' claims for both member and non-member clients. These 
frontline employees spend a minimum of two years in specialized 
training. We maintain a national appeals office staffed by attorneys 
and legal interns who represent clients at the Board of Veterans' 
Appeals (Board). We also have attorneys who practice before the Board, 
the Court of Appeals for Veterans Claims (CAVC), and the United States 
Court of Appeals for the Federal Circuit. Of all the major Veteran 
Service Organizations (VSO), only PVA offers such continuity of 
representation throughout subsequent appellate review.
    Our most important attribute, though, is that our service officers 
and attorneys consistently advocate for catastrophically disabled 
veterans. Complex claims are the norm, not the exception. As we attempt 
to bring greater efficiency to the claims and appeals system, our 
perspective is geared toward ensuring that the due process rights of 
the most vulnerable among us-those most deserving of benefits-are not 
watered down for the sake of expediency.
    PVA's unique aspects discussed above should illustrate the point 
that this Committee should not judge the importance of an 
organization's input based on the volume of claims it processes. We 
fear that in the absence of further hearings on this subject, 
Congressional consideration of a piece of legislation with the 
propensity to impact multiple generations of veterans will have been 
relegated to a single hearing, with a single panel of witnesses. In 
addition to the structure of this hearing, a bias toward the ``three 
veterans service organizations with the most members'' is also evident 
in the draft bill itself. Congress and stakeholders alike have 
repeatedly praised the Department of Veterans Affairs (VA) for its 
unprecedented level of collaboration. Encouraging VA to abandon that 
method now on the cusp of implementing a program of this scope is 
incomprehensible. It is within this Committee's power to influence the 
level of VSO involvement going forward, and PVA highly suggests that 
any bill introduced includes a mandate for continued collaboration with 
all the VSOs who participated in the original consultations in March 
2016.
                               Background
    The number of pending appeals is approaching 500,000. VA projects 
that if we fail to address the process, within a decade the average 
wait time for resolving an appeal will reach 8.5 years. We believe 
reform is necessary, and we support this legislation moving forward.
    There is no shortage of news articles and academic pieces that 
attempt to illustrate for readers the level of complexity and 
redundancy in the current appeals process. It is a unique system that 
has added layer after layer of substantive and procedural rights for 
veterans over the years. The most notable aspect differentiating it 
from other U.S. court systems is the ability for a claimant to inject 
new evidence at almost any phase. While this non-adversarial process 
offers veterans the unique ability to continuously supplement their 
claim with new evidence and seek a new decision, it prevents VA from 
accurately identifying faulty links in the process, whether it be 
individual raters or certain aspects of the process itself.
    It is important that as we approach this major issue that we do not 
lose sight of the fact that veterans have earned these benefits through 
the highest service to their country and have every right to pursue 
these earned benefits to the fullest. As we promote and seek public 
support for change, it is easy to use statements such as, ``there are 
veterans who are currently rated at 100% who are still pursuing 
appeals,'' to illustrate the problems that pervade the system. PVA will 
be the first to point out, though, that a veteran rated at 100% under 
38 U.S.C. Sec.  1114(j) might also be incapacitated to the point that 
he or she requires 24 hour caregiver assistance. A 100% service-
connected disability rating does not contemplate the cost of this care, 
and veterans may seek special monthly compensation (SMC) to the tune of 
thousands of dollars needed to address their individual needs. Few 
people would disagree that pursuing these added disability benefits are 
vital to a veteran's ability to survive and maintain some level of 
quality of life. Without clarification, such statements lead people to 
believe that veterans are the problem.
    This is why PVA believes it is so important to ensure that VSO's 
remain as involved in the follow-on development process and 
implementation as they are now if this plan is to succeed. This is a 
procedural overhaul, and VSO's are the bulwark that prevents procedural 
change from diluting the substantive rights of veterans.
                             The Framework
    As the working group came together and began considering ways to 
address the appeals inventory, it became clear that a long-term fix 
would require looking beyond appeals and taking a holistic view of the 
entire claims process. The work product in front of us today proposes a 
system with three distinct lanes that a claimant may enter following an 
initial claims decision-the local higher-level review lane, the new 
evidence lane, and the Board review lane. The work horse in this system 
is the new evidence lane. The other two serve distinct purposes focused 
on correcting errors. A decision to enter any of the lanes must be made 
within one year of receiving the previous decision. Doing so preserves 
the effective date relating back to the date of the original claim-a 
key feature of this new framework.
    When a claimant receives a decision and determines that an obvious 
error or oversight has occurred, the local higher-level review lane, 
also known as the difference of opinion lane, offers a fast-track 
ability to have a more experienced rater review the alleged mistake. 
Review within this lane is limited to the evidence in the record at the 
time of the original decision. It is designed for speed and to allow 
veterans with simple resolutions to avoid languishing on appeal.
    If a claimant learns that a specific piece of evidence is 
obtainable and would help him or her succeed on their claim, the new 
evidence lane offers the option to resubmit the claim with new evidence 
for consideration. VA indicates that its goal is a 125-day turn around 
on decisions within this lane. Another important aspect is that the 
statutory duty to assist applies only to activity within this lane. 
This is where VA will concentrate its resources for developing 
evidence.
    The third lane offers an appeal to the Board. Within this lane 
there are two tracks with separate dockets. One track permits the 
addition of new evidence and option for a Board hearing. The other 
track permits a faster resolution by the Board for those not seeking to 
supplement the record. A claimant within this track will not be 
permitted to submit new evidence, but they will have an opportunity to 
provide a written argument to accompany the appeal.
    If the claimant receives an unfavorable opinion at the Board, he or 
she may either revert to the new evidence lane within one year or file 
a notice of appeal with the CAVC within 120 days. Notably different 
from earlier versions of this legislation, this draft bill would 
preserve the claim's effective date even after an adverse decision at 
the Court.
                   Concerns Specific to the Framework
    Throughout the development of this new framework, PVA's biggest 
concern has been the proposed dissolution of the Board's authority to 
procure an independent medical examination or opinion (IME) under 38 
U.S.C. Sec.  7109. An IME is a tool used by the Board on a case-by-case 
basis when it ``is warranted by the medical complexity or controversy 
involved in an appeal case.'' Sec.  7109(a). The veteran may petition 
the Board to request an IME, but the decision to do so remains in the 
discretion of the Board. The Board may also request an IME sua sponte. 
Experienced Board personnel thoroughly consider the issues which 
provoke the need for an outside opinion. Complicating the process 
further, the CAVC has carefully set parameters for the proposed 
questions to be answered by experts. A question presented to a medical 
expert may be neither too vague, nor too specific and leading. A 
question too vague renders the opinion faulty for failing to address 
the specific issue, while a question too specific tends to lead the 
fact finder to a predisposed result.
    The standard for granting such a request is quite stringent. 38 
C.F.R. 3.328(c) states, ``approval shall be granted only upon a 
determination . . . that the issue under consideration poses a medical 
problem of such obscurity or complexity, or has generated such 
controversy in the medical community at large, as to justify 
solicitation of an independent medical opinion.'' The number granted 
each year usually amounts to no more than one hundred, with 
approximately fifty percent of those IME's being requested by the Board 
itself. The regional offices have long held a companion authority under 
38 U.S.C. Sec.  5109. Incredibly, in a room full of practitioners 
convened in March 2016 as part of this current reform process, not one 
among them could recall an instance of a rating officer requesting an 
IME. And yet the original proposal was to eliminate the Board's 
authority to procure an IME and rely solely on a rating officer 
exercising his or her authority under Sec.  5109.
    VA's rationale for dissolving this authority is primarily based on 
having all development of evidence take place at the Agency of Original 
Jurisdiction (AOJ) level in the New or Supplemental Evidence Lane. This 
unwavering desire to rid the Board of any development stems in part 
from an attempt to exploit its experienced Veteran Law Judges (VLJ) to 
the greatest possible extent. VLJ's who adjudicate appeals are a human 
capital commodity and form a critical component of the system. Because 
employees and outside attorneys cannot reach the experience and 
qualifications of a VLJ overnight, VA is limited in its ability to 
scale this particular resource simply by hiring new employees.
    These concerns are valid to a degree, and we have worked with 
officials to find a solution that allows the Board to realize the 
benefit of making the best use of VLJ's while attempting to preserve 
the beneficial aspects of IME's procured by the Board. Part of the 
mitigating measures are reflected in this draft bill's proposed 
amendments to 38 U.S.C. Sec.  5109, permitting the Board to remand 
specifically for procurement of an IME and requiring the VLJ to 
articulate the specific questions to be presented to the expert.
    We remain concerned, however, with the remand language. As written, 
the Board would only be permitted to remand for an IME if it determined 
an error existed on the part of the AOJ to satisfy its duty to assist 
under 38 U.S.C. Sec.  5103A. We recommend striking this requirement. 
First, the existing statute explicitly renders an IME discretionary. 
VA's failure to employ a discretionary tool cannot, by definition, be 
considered a violation of a compulsory duty to assist. These two 
statutory provisions are diametrically opposed and cannot be 
reconciled. Second, should these statutory parameters be reconciled, 
there are still situations where the AOJ carried out its duty to 
assist, but the Board determines an IME is warranted. An IME might be 
needed when the AOJ procured advisory medical opinions from its own 
staff doctors, but the medical question is of such complexity that the 
Board feels only an expert can shed light on the appropriate decision. 
There could be multiple conflicting medical opinions in need of 
resolution, or an IME could be used to avoid conflicts of interest in 
claims under 38 U.S.C. Sec.  1151 for medical malpractice.
    None of these circumstances would violate the AOJ's duty to assist 
under a plain-language reading of the statute. Of course, we would also 
note that some of these situations could easily be resolved if VA would 
better adhere to its own reasonable doubt provision when adjudicating 
claims. We still see too many VA decisions where this veteran-friendly 
rule is not properly applied. More often it appears VA raters exercise 
arbitrary prerogative to avoid ruling in favor of the claimant, adding 
obstacles to a claimant's path without adequate justification. While 
due diligence in gathering evidence is absolutely necessary, too often 
it seems that VA is working to avoid a fair and legally acceptable 
ruling favorable for the veteran. Both the failure to accept and 
tendency to devalue non-VA medical evidence are symptoms of this 
attitude.
    Dissolving Sec.  7109 would have the additional effect of 
abolishing the centralized office of outside medical opinions. This 
small staff has played a vital role in facilitating IME's and 
maintaining their effectiveness by developing relationships with 
doctors who are experts on particular subjects and willing to do this 
tedious task for almost no money. This office not only expedites the 
receipt of opinions, but it also ensures a high level of quality. VA 
has committed verbally to PVA that it will preserve this resource by 
moving it from the Board and placing it under VBA's management, in 
essence making it available to the AOJ going forward.
    The decreased efficiency with having the process conducted at the 
AOJ level is also concerning. Instead of the VLJ requesting an IME and 
receiving the opinion, now a second person must review the claim-the 
rating officer who received the file on remand. If a veteran wishes to 
appeal this re-adjudication, we have asked for and received VA's 
commitment to reroute the appeal by default, with exceptions, back to 
the same VLJ who remanded the case to avoid yet another person from 
having to review a claim with enough medical complexity to warrant the 
IME. Unless this Committee is willing to outright preserve Sec.  7109, 
we would strongly recommend that the Committee conduct oversight on 
these specific commitments by VA, perhaps as part of the increased 
reporting requirements.
    We also recommend an additional jurisdictional safeguard for the 
Board. In 38 U.S.C. Sec.  7104, it would be helpful to include language 
that addresses situations where the Board finds that an appeal presents 
extraordinary circumstances. The Board, in its sole discretion, should 
be able to retain jurisdiction over a remand of that appeal.
    Some stakeholders have expressed concern over the replacement of 
the ``new and material'' evidence standard with ``new and relevant.'' 
It is true that there are a number of appeals in the system currently 
disputing a decision that evidence submitted was not deemed 
``material.'' The stated concern is that changing ``material'' to 
``relevant'' will simply exchange one appealable issue for another. 
While it is a fair point, ``relevant'' is a significantly lower legal 
threshold and as higher numbers of veterans meet this threshold, it 
should correlate to fewer appeals. Those expressing concern propose 
having VA simply accept all ``new'' evidence and make a decision. Under 
this proposal, if the evidence is so weak that it is not even relevant, 
then VA can easily deny the claim. For every denial, VA will be 
required to do the work of providing the improved notice explaining its 
decision. Conversely, a legal determination that new evidence is not 
relevant would not be subject to this requirement, thus a reduced 
workload for VA. PVA believes ``new and relevant'' is an acceptable 
standard for veterans to meet. But at this point, it is unclear whether 
dealing with continued appeals on relevance determinations or 
processing improved notice for denials will lead to a greater aggregate 
negative impact on the system.
    Earlier objections were raised concerning the specificity with 
which a veteran was required to identify issues of fact or law being 
contested on appeal in a notice of disagreement. At first glance, the 
prior language appeared to be quite ``legalese'' requiring a 
sophisticated level of pleadings. Placing such burden on veterans would 
be at odds with the non-adversarial nature of the system. We are 
pleased to see that the current draft bill has addressed this issue.
                            Judicial Review
    We noted above that this draft bill would preserve a claim's 
effective date following an adverse decision from CAVC. It would also 
provide the same relief after an adverse decision from the Federal 
Circuit and the Supreme Court of the United States. The concept of 
imposing finality after a Court decision has provoked a significant 
debate among the stakeholders. Unfortunately, the strongest objections 
to imposing finality at the Court have not been met with much 
discussion regarding why VA, or some of the other stakeholders, are 
comfortable with finality at that stage. We would encourage the 
Committee to draw out this discussion and fully examine the issue. 
There are arguments and perspectives on both sides that warrant 
attention.
    Our initial impression is that while VA is trying to create new 
efficiencies in its claims and appeals processing, we must remember 
that the CAVC is not part of that system, and it does not exist for 
VA's benefit or efficiency. Nor does it exist to create precedent. 
Precedent is a byproduct of an individual availing him or herself of 
the Court. The Court exists to hear veterans' individual claims and 
gives veterans an independent avenue to challenge whether VA considered 
a claim correctly. We in the veterans community fought long and hard 
for judicial review, and it is precious. PVA is uniquely positioned in 
this regard. Our organization has boxes full of claims that, but for 
the Court, the veteran would never have had a full and fair review. 
When we approach analyzing the impact on the Court, we should not focus 
on the systematic efficiencies or precedent, because these are not the 
Court's purpose. We should focus on what an individual veteran's right 
to judicial review is and what it takes to avail him or herself of that 
right.
    There are reasonable assertions that failing to provide effective 
date relief following a Court decision will have a chilling effect on 
the Court. They should be addressed unless willing to be conceded. One 
scenario presented is where a veteran, who having received a denial 
under what she believes is an erroneous application of law to the case, 
also has new evidence to attach to the claim. She is faced with 
deciding whether to pursue Court review on the legal issue or circulate 
back through the system with new evidence. If she chooses the Court and 
loses, she can still continue to pursue the claim with new evidence, 
but she will have lost her effective date. If she chooses to handle the 
new evidence first, her claim will again be adjudicated under what she 
considers to be an erroneous interpretation of law. This predicament, 
so the argument goes, will likely force veterans to choose to avoid the 
Court at the risk of missing an opportunity to strengthen the record. 
Hence the chilling effect. It also inconveniences the veteran by having 
them cycle through the system while being again scrutinized under a 
misinterpretation of the law.
    One might argue, though, that there is no chilling effect in this 
scenario. The veteran is in fact inconvenienced. But ultimately, if the 
veteran cycles through again with the new evidence, strengthening the 
record, she arrives in the exact same position if denied, this time 
without the predicament. The choice is obvious, and she heads to the 
Court. The only person in this scenario who ultimately would not reach 
the Court is one who received an earlier and favorable adjudication at 
a lower level of review. This is precisely what we want for veterans. 
Any reduction in claims reaching the Court would be attributed to more 
efficient outcomes for the veterans. Making a decision about the 
framework that accommodates veterans facing this scenario also requires 
a belief that the veteran's legal interpretation is always correct and, 
necessarily, that VA's is always wrong. This is not how sound policy is 
formed. Further, it is hard to weigh at this point a single veteran's 
inconvenience in this scenario against the potential gains for numerous 
veterans who are benefitting from a more efficient system due to the 
finality imposed after a Court decision.
    There is, perhaps, also an undue assumption that a chilling effect 
on the Court would in fact reduce precedent and oversight on VA. 
Conceptually, one may concede that a reduction in volume of claims at 
the Court raises the possibility that a ``perfect case'' for setting 
precedent will not arrive. But it is possible that a reduction in the 
Court's workload would offer greater opportunity to give more time and 
attention to a precedent-setting claim, which otherwise might have 
slipped through the cracks or not garnered a more thorough opinion.
    There are other scenarios that argue in favor of granting effective 
date relief following review by the CAVC. If the Board rules against a 
veteran and finds that a medical exam being challenged was adequate for 
purposes of his rating decision, he is faced with two choices. He could 
appeal to the CAVC, or he could develop independent evidence that would 
strengthen his argument that the exam provided by VA was inadequate. 
The latter option costs money. If effective date relief followed a 
decision at the CAVC, the veteran could wait and see if the Court 
agreed with his position before he was forced to shell out money he 
likely does not have to invest in proving his claim. Veterans with 
means may not see this as an issue. For those without means, it would 
be an unwarranted obstacle in a system that is designed to be non-
adversarial.
    One aspect of this framework that has not been discussed at all is 
the fact that you can technically take one issue from a multi-issue 
claim up to the Court, and cycle back through the other lanes in the 
framework on the remaining issues. Currently, the Court takes 
jurisdiction over issues that are expressly identified by the veteran, 
and issues not appealed after a Board decision are final. Nothing in 
this draft bill changes the way an issue reaches the CAVC. But because 
this new framework has provided liberal effective date relief, new 
incentives for action have been introduced. There should be further 
discussion among stakeholders and VA about how claims are dealt with 
that end up being split up between the Court and the agency. There is 
no precedent for this in the current system.
    PVA was a supporter early on of judicial review, and we believe the 
availability of that review has improved the appeals process for 
veterans. Determining the best way to preserve that protection deserves 
more conversation at this point in time.
                             Implementation
    We applaud the heavy reporting requirements found within this bill. 
One of the biggest reservations that the collective stakeholders have 
voiced is the absence of information related to implementation. GAO's 
recent report reinforced our claim that the success of this new 
framework hinges on how VA makes the transition, and VA has yet to 
fully demonstrate what it needs to accomplish this task. We also agree 
that it is important that VA provide a full accounting of the bases for 
certain assumptions that have been used to support the feasibility of 
this new framework. For example, what is the basis for the assumption 
that within the ``hearing lane'' at the Board, thirty-five percent of 
veterans will choose to have a hearing? What is the impact on the 
system if that estimate is drastically wrong?
    Within the reporting requirements, we recommend including a mandate 
to track legacy appeals that have transitioned into the new system. The 
goal would be to ensure that Congress can easily identify how many 
legacy appeals have been truly resolved as opposed to being 
reclassified in the new system.
    We support VA's proposed first step toward combatting the backlog 
of legacy appeals. One of the hurdles to permitting veterans with 
legacy appeals to join the new system was that veterans in the legacy 
system may not have been provided sufficient notice to make an educated 
decision. Allowing veterans to join after they have received a 
statement of the case or supplemental statement of the case addresses 
this concern and will help stem the flow of new claims into the old, 
broken system. The quicker we can shut off that valve, the quicker the 
backlog of legacy appeals will be handled.
    We note in closing that this is not simply a VA problem. As stated 
earlier, PVA has many service representatives and spends a great deal 
of time, funds, and effort on ensuring they accomplish their duties at 
a high level of effectiveness. However, it is important that veterans 
and their representatives also share responsibility when appeals arrive 
at the Board without merit. A disability claim that is denied by VBA 
should not automatically become an appeal simply based on the 
claimant's disagreement with the decision. When a claimant either files 
an appeal on his own behalf, or compels an accredited representative to 
do so with no legal basis for appealing, that appeal clogs the system 
and draws resources away from legitimate appeals. Since 2012, PVA has 
taken steps to reduce frivolous appeals by having claimants sign a 
``Notice Concerning Limits on PVA Representation Before the Board of 
Veterans' Appeals'' at the time they execute the Form 21-22 Power of 
Attorney (POA) form. PVA clients are notified at the time we accept POA 
that we do not guarantee we will appeal every adverse decision and 
reserve the right to refuse to advance any frivolous appeal, in keeping 
with VA regulations.
    PVA believes that substantial reform can be achieved, and the time 
is ripe to accomplish this task. Our organization represents clients 
with some of the most complex issues, and we cannot stress enough that 
moving forward should not be done at the expense of the most vulnerable 
veterans. We must remain vigilant and appreciate the benefits of 
bringing together the variety of stakeholders who are participating and 
bringing different perspectives and viewpoints-it is a healthy 
development process that ensures veterans remain the focus. Thank you, 
Mr. Chairman, for the opportunity to offer our input on this important 
legislation.

                                 
                   VIETNAM VETERANS OF AMERICA (VVA)
                   Presented by John Rowan, President
    Vietnam Veterans of America (VVA) is pleased to have the 
opportunity to present this statement for the record regarding the bill 
entitled ``Veterans Appeals Improvement and Modernization Act of 
2017.''
    Vietnam Veterans of America (VVA) is strongly opposed to the 
enactment of the Veterans Appeals Improvement and Modernization Act of 
2017 in its current form. While VVA certainly supports initiatives to 
fix the broken claims process, the solution should never be to replace 
a broken system with a new one that is equally flawed. The bill ignores 
the need for legal precedent in the VA claims process, limits due 
process protections, and compromises the non-adversarial, pro-veteran 
claims system at the convenience of VA.
    While head of the Department of Veterans Affairs (VA), General Omar 
Bradley once stated, ``[w]e are here to solve . . . veterans' problems, 
not our own.'' VVA believes that the proposed bill seeks to solve VA's 
``problems'', to the direct detriment of veterans. In considering the 
merits of the bill, VVA urges Congress and stakeholders to sincerely 
consider if this bill will fix the fundamental problems with the 
current claims system. VVA believes it does not.
    It is widely understood that the appeals process is in need of 
urgent reform, and to do nothing would be unacceptable; however, VVA 
urges Congress to not replace the current broken system with an equally 
flawed plan simply because it is too daunting to redesign a plan that 
directly addresses the problems facing the appeals process today. In 
its current form, this bill is an insult to the brave men and women who 
sacrificed to protect the Constitution of the United States.

I. The bill fails to address the lack of precedent in the VA claims 
    process and decreases decision finality at all levels of appeal.

    The bill fails to address the lack of a precedent-setting mechanism 
in the veterans benefits adjudicatory system. Even more concerning, VVA 
believes the new proposed framework could decrease the rate of legal 
precedent being set due to the erasure of the duty to assist at all 
higher levels of review.
    One of the fundamental problems with the current claims system is 
that veterans who have nearly identical records will receive 
drastically different results. Whether a veteran's claim is granted 
should depend on the claim's merits, not on who happened to be 
adjudicating the claim that day. Sadly, the current bill does not 
address the need for a precedent-setting mechanism in the claims 
process, which VVA believes will increase consistency in decisions, 
decrease the rate of appeals, and enable VA to automate similar types 
of claims.
    Additionally, the bill permits the veteran to continue to file a 
supplemental claim after a decision is issued at any higher level of 
appeal to preserve the original effective date. Although VVA supports 
legislation that protects the earliest possible effective date, the 
bill exacerbates the current problem of the never-ending churn of cases 
between all levels of appeal. In theory, the bill permits a veteran to 
refile a supplemental claim to continue a claim after he receives a 
decision by the Supreme Court of the United States. Indeed, the bill 
creates more uncertainty with the finality of decisions, which VVA 
fears may increase the claims backlog.

II.The bill fails to address VA's inability to properly satisfy its 
    duty to assist at the Agency of Original Jurisdiction-level.

    The bill fails to address one of the fundamental problems with the 
claims system: VA has not yet proven itself to be able to properly 
apply the laws and regulations to any veterans claims file in a 
consistent and pro-veteran manner at the Agency of Original 
Jurisdiction-level. In FY 2015, 41 percent of the reasons for remands 
at the Board were due to a VBA error. \1\ The bill does not address the 
high frequency of errors at the initial decision-level.
---------------------------------------------------------------------------
    \1\ Government Accountability Office (GAO), VA Disability Benefits: 
Additional Planning Would Enhance Efforts to Improve the Timeliness of 
Appeals Decisions, GAO-17-234 (March 2017).
---------------------------------------------------------------------------
    Instead, the bill proposes to increase the role of the Agency of 
Original Jurisdiction by eliminating the Secretary's duty to assist 
requirement for any higher-level reviewers or Board decisions. 
Additionally, the bill proposes to eliminate Decision Review Officers 
(DROs), who come from the ranks of the most senior raters at VBA. VVA 
believes this shift to rely exclusively on initial claims raters to 
conduct all development and duty to assist requirements, without 
additional required proficiency training, is a concern. Unfortunately, 
incompetent raters in need of urgent training will be able to hide 
behind the National Work Queue process, where claims are being moved 
around the country on a daily basis.
    Although the bill proposes a higher-level review option, many 
higher-level reviewers will likely lack the expertise and experience of 
DROs due to the larger pool of staff necessary to conduct these reviews 
under the new framework. Notably, the bill does not indicate any 
competency level requirement for the higher-level reviewers. VVA fears 
the higher-level review process will lead to the rubber-stamping of 
rating decisions, especially since higher-level reviewers, unlike DROs, 
will not be subject to the Secretary's duty to assist.

    III. The bill attacks the uniquely pro-veteran system at the Board 
due to the limited applicability of the Secretary's duty to assist.

    The Secretary's duty to assist does not extend to higher-level 
reviews or decisions at the Board; nonetheless, the veteran may submit 
additional evidence and hearing testimony at the Board-level. Moreover, 
veteran advocates have been assured that they will still be able to 
submit Informal Hearing Presentations (IHPs), or written advocacy 
papers, for both hearing and non-hearing docketed cases prior to a 
final Board decision. VVA believes the absence of a duty to assist 
requirement at the Board will result in erroneous denials and a waste 
of VA resources.
    The bill creates a system where a Veterans Law Judge (VLJ) may deny 
a claim because she does not have the duty to assist in gathering 
additional relevant federal documents necessary to get the claim 
granted. Although the veteran will have the ability to file a 
supplemental claim at the AOJ, it hardly seems like a pro-veteran 
system where an adjudicatory body knows of possible helpful information 
for a claimant, but is not able to act on this knowledge in a helpful 
way to the veteran. Under this new framework, the pro-claimant system 
would deteriorate and it is nonsensical for a VLJ to receive additional 
evidence for consideration, but not be able to act in the veterans 
favor once receiving this evidence.
    VVA also is concerned about how ``evidence'' will be defined at the 
Board-level. If advocates are permitted to submit IHPs (advocacy 
briefs) but not ``evidence'' in the non-hearing track, what happens if 
an advocate includes a statement by the veteran in the IHP or 
references the existence of federal records that should be included in 
the veteran's file? Is that considered ``evidence'' if the claim is in 
the non-hearing track? Will it be transferred to the hearing track? 
Will the VLJ not consider the statement or acknowledge the existence of 
potentially helpful evidence? Again, VVA is concerned that this process 
cannot be reconciled with the pro-veteran claims process.

III. The bill encourages veterans to not exercise their right to a 
    Board Hearing, not submit additional evidence, and not have their 
    case reviewed by a Veterans Law Judge.

    In the bill, if a veteran wishes to appeal her decision to the 
Board, the Veteran must choose the hearing docket or the non-hearing 
docket. VA has indicated that veterans who wish to exercise their right 
to a Board hearing will need to wait longer for a final Board decision, 
and veterans who do not wish to have a hearing will have their claims 
decided more quickly. VVA is strongly opposed to a system that 
disincentives a veteran to exercise his right to a hearing.
    Additionally, VVA believes veterans that do not want a hearing, but 
wish to submit additional evidence should not be required to choose the 
hearing docket. Again, the bill is penalizing a veteran for exercising 
his right to add evidence to the record. VVA believes veterans wishing 
to only add additional evidence should be able to choose the non-
hearing docket. The bill is asking veterans to forgo their due process 
rights so that VA may process claims more quickly.
    Finally, VVA is concerned that due to the unequal treatment for 
veterans who wish to have a hearing or submit additional evidence and 
the absence of the Secretary's duty to assist at the Board, the 
proposed bill incentivizes veterans to file a supplemental claim at the 
AOJ-level instead of appealing to the Board. This may be the case, even 
if the AOJ clearly erred. The bill is an assault on the veteran's right 
to appeal and be heard by a VLJ.

IV.The bill does not give adequate consideration to the legacy appeals 
    that have already been pending for years.

    VVA is concerned about the status of the legacy appeals. The bill 
creates the dramatic need for additional raters at the AOJ-level, as 
well as the need for appropriate division of staffing to address 
appeals. Currently, VVA has hundreds of pending Board hearings, some of 
which have been pending since 2009. The Board has admitted that it will 
take several years for it to complete its current backlog of hearings, 
notwithstanding the inevitable influx of new hearing requests. VVA is 
concerned that the new appeals system will take priority over appeals 
that have languished in the system for many years. Any new claims 
process must ensure the legacy appeals system has adequate resources.

V.The bill should not include the Fully Developed Appeals Program due 
    to problems with implementation with the other sections of the 
    bill.

    Although VVA recognizes the optional-nature of the Fully Developed 
Appeals (FDA) Program in the bill, VVA believes now is not the time to 
``test assumptions'' relied on in development of the bill. There are 
numerous problems with the FDA's concept, such as it will pull 
substantial resources from the already taxed Board, it will create more 
confusion by developing a new docket, and it does not provide 
unrepresented veterans the same rights as represented veterans. 
Additionally, the FDA Program asks the Board to conduct claim 
development, which is completely contrary to the other sections of the 
bill. In a time where Congress seeks to overhaul the entire claims 
process, it does not make sense to also ``test'' a plan that requires a 
completely new administrative process.

VI. The bill harms the veteran by permitting VA to prematurely 
    ``dismiss'' appeals, even if the veteran intends to appeal an 
    initial decision.

    The bill permits the Board to ``dismiss'' any appeal that fails to 
identify the specific determination with which the claimant disagrees 
in the Notice of Disagreement (NOD). This requirement significantly 
raises the standard by which the veteran is required to follow to 
successfully appeal her decision. This is certainly not in the spirit 
of the non-adversarial and pro-veteran claims system.
    If a veteran files a proper NOD, but VA needs additional 
clarification, VA should request clarification and not ``dismiss'' the 
appeal. By filing a NOD, clearly the veteran disagrees with something 
in the initial decision; policies should be implemented to assist the 
veteran in completing his appeal, not end it. This change appears to be 
yet another scheme to allow VA to easily dismiss appeals.

VII. The bill harms veterans by creating a ``new and relevant'' 
    evidence standard with a definition that is unclear.

    The bill proposes to remove the ``new and material evidence'' 
standard and replace it with a ``new and relevant evidence'' standard. 
``Relevant evidence'' is defined as ``evidence that tends to prove or 
disprove a matter in issue.'' This language is so general as to be 
meaningless, and will certainly lead to the need for litigation to 
further define it. Why did VA make this definition so vague? VVA has 
significant concern that VA is intending to make this definition more 
restrictive than what was promised to stakeholders during negotiations.

VIII. The bill fails to require reporting be made available to the 
    public.

    The bill requires VA to submit a comprehensive plan to the 
Committee on Veterans' Affairs of the Senate, the Committee on 
Veterans' Affairs of the House of Representatives, and the Comptroller 
General of the United States no later than 90 days after the date of 
enactment. The bill also requires the Comptroller General to review the 
comprehensive plan to determine whether the plan comports with sound 
planning practices, identification of any improvements, and formulation 
of any recommendations. VA is also instructed to submit semiannual 
reports.
    VVA believes the bill should require that VA's comprehensive plan, 
Comptroller General's written assessment, and any VA reports be 
publicly published. Moreover, the bill should require VA to timely 
address the recommendations made by the Comptroller General, and the 
actions taken should be made available to the public.

CONCLUSION

    The Veterans Appeals Improvement and Modernization Act of 2017 is 
an attempt to improve the appeals process of VA. VVA is strongly 
opposed to enactment of this legislation as it does nothing to fix the 
fundamental problems with the appeals system. The system is broken and 
needs urgent repair; however, enacting a bill that will ultimately fail 
veterans is not a conscionable choice.
    This bill is a tool for VA to more expeditiously process cases, 
while simultaneously limiting a veteran's due process rights. VVA 
believes veterans and their families will be harmed with this so-called 
appeals modernization bill. The immense pressure to ``fix the problem'' 
does not mean we must support a bill that does just the opposite. As 
the saying goes, ``delay, deny, until we die''; sadly, due to the 
bill's inadequacies, VVA fears that enactment of this bill will be to 
the detriment of veterans and their families.
    On behalf of VVA's members and our families, thank you for the 
opportunity to submit this statement for the record. For questions, 
please contact Rick Weidman, Executive Director for Policy and 
Government Affairs, at [email protected], or Kelsey Yoon, Director of 
Veterans Benefits, at [email protected].

                                 
                        Questions For The Record

                  Responses to Post Hearing Questions
Chairman Roe

1. Is it important for the Department of Veterans Affairs (VA) to 
    continue to work with veterans advocates throughout the 
    implementation phase of appeals reform?

RESPONSE: Yes, it is important for VA to continue to work with Veterans 
    advocates throughout the implementation phase of appeals reform. VA 
    has previously stated and remains committed to ongoing engagement 
    during the implementation phase of appeals reform, to the extent 
    allowed by law.

2. Which stakeholders do you believe that VA should collaborate with 
    prior to certifying that the Secretary?

RESPONSE: We believe that VA should collaborate with the stakeholders 
    that participated in the March 2016 Appeals Summit, specifically, 
    the American Legion, American Veterans, Disabled American Veterans, 
    the Military Officers Association of America, the National 
    Association of County Veterans Service Officers, the National 
    Association of State Directors of Veterans Affairs, the National 
    Organization of Veterans' Advocates, the National Veterans Legal 
    Services Program, Paralyzed Veterans of America, Veterans of 
    Foreign Wars, and Vietnam Veterans of America.

3. How many veterans would be impacted if Congress were to protect 
    veterans' effective dates after an adverse decision at the Veterans 
    Court?

RESPONSE: If Congress were to protect Veterans' effective dates after 
    an adverse decision at the United States Court of Appeals for 
    Veterans Claims (CAVC), any Veteran who has at least one issue 
    affirmed on appeal to CAVC could be impacted, as that Veteran could 
    file a supplemental claim within one year of the CAVC decision and 
    have the date of claim, for purposes of assigning the effective 
    date of an award of a benefit eventually granted, relate back to 
    the date of filing of the initial claim. The Board does not have 
    information about how many Veterans file a request to reopen their 
    claim after a CAVC affirmance and eventually have a benefit 
    granted. The table below shows the number of individual appellants 
    by fiscal year (FY), 2001 through 2016, who had at least one issue 
    affirmed at the CAVC. Any Veteran who has at least one issue 
    affirmed at the CAVC would potentially be impacted if Congress were 
    to protect Veterans' effective dates following an adverse decision 
    at CAVC after the effective date of the legislation.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]  
    

4. Does VA anticipate allowing veterans who are currently in the 
    system, but would not be eligible to opt-in to the new system under 
    the draft legislation, to opt-in to the new system in the future?

RESPONSE: The opt-ins presently in the draft legislation provide 
    opportunities for Veterans who would otherwise have an appeal in 
    the legacy process to choose to participate in the new system 
    instead. While one opt-in provides opportunities to Veterans who 
    receive a decision during the 1-year period prior to the effective 
    date of the law, the other allows Veterans who receive a Statement 
    of the Case (SOC) or Supplemental Statement of the Case (SSOC) in a 
    legacy appeal after the effective date of the law, to opt-in to the 
    new system. This SOC/SSOC opt-in means that, even if a Veteran is 
    not immediately eligible to opt-in to the new system, he or she 
    could later opt-in upon issuance of an SSOC in the legacy system. 
    VA does not anticipate creating additional opt-ins during the 
    initial implementation of the new system. However, after we have 
    been operating in the new system, and have had an opportunity to 
    reassess pending workload and resource allocations, we are open to 
    the possibility of exploring whether there may be additional 
    opportunities for opt-ins into the new system.

5. How many resources will the Board of Veterans' Appeals (Board) 
    devote to deciding legacy appeals?

RESPONSE: The Board intends to devote resources required to maintain 
    timely processing in the new system. All remaining resources will 
    be allocated to addressing legacy appeals.

    a. Based on the estimated resource allocation, how long does the 
    Department anticipate that it will take to resolve legacy appeals?

RESPONSE: VA intends to address the legacy appeals inventory as quickly 
    and efficiently as possible. Without significant legislative reform 
    to modernize the claims appeals process, VA projects that Veteran 
    wait times and the cost to taxpayers will continue to increase over 
    time. The goal is to eliminate the inventory of legacy appeals in a 
    timely manner following enactment of the appeals modernization 
    legislation, while also maintaining timely processing in the new 
    process. Prioritization, assessment of resource requirements in the 
    annual budget process, and the opt-in features of the new process 
    will assist VA in accomplishing that goal. However, due to the 
    nature of the complex, inefficient and outdated legacy process, VA 
    projects that there will be an inventory of legacy appeals for a 
    substantial amount of time, regardless of the amount of resources 
    made available to legacy appeals processing. The rate at which 
    legacy appeals are resolved will depend upon future funding 
    determinations.

6. How will the Board balance the resources for multiple dockets to 
    ensure that veterans receive a timely decision even if he or she 
    wants to have a hearing?

RESPONSE: As indicated above, the Board will allocate resources to 
    maintain timely processing in the new system. The allocation, of 
    course, must take into account the number of cases that come into 
    the Board with a request for a hearing, or a request for 
    consideration of new evidence.

7. At this time, how many resources does Veterans Benefits 
    Administration (VBA) plan to allocate to the legacy appeals?

RESPONSE: VBA is mindful of the need to balance resources so that the 
    agency can eliminate the legacy appeals inventory as quickly as 
    possible. VBA intends to allocate resources in an efficientmanner 
    that will establish timely processing in the new system and will 
    allocate all remaining appeals resources to address the inventory 
    of legacy appeals.

    a. Based on the estimated resource allocation, how long does the 
    Department anticipate that it will take to resolve the legacy 
    appeals?

RESPONSE: The goal is to eliminate the inventory of legacy appeals in a 
    timely manner following enactment of the appeals modernization 
    legislation, while also maintaining timely processing in the new 
    appeals framework. Prioritization, assessment of resource 
    requirements in the annual budget process, and the opt-in features 
    of the new process will assist VA in accomplishing that goal. 
    However, due to the nature of the complex, inefficient and outdated 
    legacy process, VA projects that there will be an inventory of 
    legacy appeals for a substantial amount of time, regardless of the 
    amount of resources made available to legacy appeals processing. 
    The rate at which legacy appeals are resolved will depend upon 
    future funding determinations.

    b. Based on the estimated resource allocation, will VBA be able to 
    meet its goal of processing the appeals for veterans who want a 
    hearing within 1 year?

RESPONSE: One of the benefits of the new system is that VBA will be the 
    claims agency and the Board will be the appeals agency. Therefore, 
    VBA will not process appeals under the new legal framework. A 
    Veteran may request a pre-decisional hearing during the processing 
    of an initial claim, and a supplemental claim; however, there are 
    no hearings in the higher-level review lane. The average processing 
    time goal for initial claims, supplemental claims, and higher-level 
    reviews in the new system is 125 days.

8. Will VA provide an examination or develop for relevant private 
    medical evidence if the veteran's condition worsens while the 
    appeal is pending?

RESPONSE: No. In the new system, all appeals will be handled by the 
    Board. As stated above, clearly establishing VBA as the claims 
    agency and the Board as the appeals agency is one of the benefits 
    of the new system. Because the duty to assist will not apply to 
    review on appeal by the Board, the Board would not remand to obtain 
    an examination or develop relevant private medical evidence if the 
    Veteran's condition worsens while the appeal is pending. However, 
    if a Veteran believes that his or her condition worsened while the 
    appeal was pending, he or she could file a supplemental claim with 
    new and relevant evidence within 1 year of the Board decision, in 
    which case the effective date of any increased benefits granted 
    would be protected.

9. Will VA have a duty to assist if a veteran files a supplemental 
    claim?

RESPONSE: Yes. In the new system VA's duty to assist applies in the 
    supplemental claim lane.

10. Do you have concerns that putting the contents of a decision 
    notification letter into statute would make it more difficult for 
    VA to revise these letters as the needs of veterans or other laws 
    change over time?

RESPONSE: While VA generally prefers administrative flexibility in its 
    statutory authority, it became clear during March 2016 appeals 
    design discussions with stakeholders that any reform legislation 
    would need to prescribe the core elements of a decision notice. 
    Without these provisions, it is unlikely VA would have reached a 
    near unanimous consensus for change. VA will still have the 
    flexibility it needs to prescribe rules related to providing this 
    notice and to modify its notification letters consistent with the 
    statutory requirements. To the extent that the needs of Veterans 
    change over time, VA would work with stakeholders to propose 
    necessary statutory amendments.

11. Is VA planning to update VBMS to enable it to process appeals?

    a. If so, when will such update be available?

RESPONSE: In December 2016, the first iteration of the SOC and SSOC 
    legacy program was integrated into the Veterans Benefits Management 
    System (VBMS). The new functionality reduces reliance on legacy 
    systems, and improves VBA systems integration while streamlining 
    the process of issuing an SOC. However, under the appeals 
    modernization legislation, VBA would not process any new appeals; 
    therefore, VBA would require a modification to VBMS to account for 
    changes to the claims process, specifically the higher-level review 
    and supplemental claim lanes in the new process. VA plans to have 
    those changes implemented before the effective date of the 
    legislation.

12. How long would it take for the Board to update its Information 
    Technology system to implement the changes required by the bill?

RESPONSE: The United States Digital Service has a team of digital 
    service experts at the Board working to replace the Veterans 
    Appeals Control and Locator System (VACOLS), its current, outdated 
    software for managing the appeals process, with Caseflow, a modern 
    suite of web applications designed to increase timeliness, accuracy 
    and Veteran experience in the appeals process. The Digital Service 
    team has been monitoring the legislative process, and is developing 
    Caseflow using agile, iterative processes that enable them to 
    quickly adapt in response to the final form of the legislation. 
    Therefore, the Board and Digital Service are fully prepared to 
    implement in Caseflow the information technology related changes 
    required by the bill, in the normal course of development, within 
    one year of passage of the Veterans Appeals Improvement and 
    Modernization Act.

    a. What are the anticipated costs of these changes?

RESPONSE: There are no anticipated additional costs for these changes. 
    Because Caseflow development work is ongoing, and will include 
    these changes, all funding for these changes is covered by the 
    existing Appeals Modernization budget.

Representative Bost

13. Is VA planning to process appeals through the National Work Queue?

RESPONSE: In the new process, VBA will use its National Work Queue 
    (NWQ) workload management strategy to electronically distribute 
    claims in the higher-level review and supplemental claims lanes to 
    any VA regional office that has processing capacity. In addition, 
    VBA intends to distribute legacy appeals pending in VBA's 
    jurisdiction to its regional offices using the NWQ. The Board does 
    not utilize the NWQ to manage its appeals workload.

14. After appeals reform is enacted, will the Board be able to meet its 
    goal of processing the appeals for veterans who want a hearing 
    within one year?

RESPONSE: To clarify, the average processing goal of one year in the 
    new system is for appeals with no request for a hearing and no 
    additional evidence. However, enactment of appeals reform will 
    dramatically reduce processing time for all appeals, resulting in a 
    better experience for the Veteran, and a much more efficient 
    system. We have confidence that appeals not accompanied by a 
    request for a hearing or consideration of new evidence can be 
    resolved in one year. VA's ability to reduce the overall processing 
    time for appeals will depend on the proportion of cases that come 
    to the Board with a hearing request, a request for consideration of 
    new evidence, or both.

    a. If not, what additional resources, such as technology, does the 
    Board need to meet its goal?

RESPONSE: As indicated above, the Board anticipates that it will be 
    able to meet the timeliness goal of an average processing time of 1 
    year for appeals with no request for a hearing and no additional 
    evidence in the new system.

15. Total number of BVA decisions issued in which at least one claim 
    contained therein was remanded for each of the past three fiscal 
    years (i.e., Fiscal Year 2014, Fiscal Year 2015, and Fiscal Year 
    2016). Please also note the top five reasons necessitating remand 
    by BVA.

RESPONSE: The table, below, provides the number of decisions with at 
    least one remanded issue for FYs 2014 through 2016.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

*Note: Data for this request was pulled from a Veterans Appeals Control 
    and Locator System (VACOLS) report on June 20, 2017, while the 
    decision totals reflected in the Board's Annual Report to Congress 
    are pulled at the end of the fiscal year (FY). VACOLS reports are 
    completed in ``real time'' and are updated continuously as work 
    process records are updated to reflect current status, reassigned 
    to another employee, cancelled, or completed.

Below are the top five reasons for remand from the Board to the Agency 
    of Original Jurisdiction for FYs 2014-2016:


 
 
                Year                                Reason
 
                   2014                   VA medical records
                                               Nexus opinion
                                     Incomplete/inadequate findings
                                     Current findings (medical
                                        examination/opinion)
                                     Private medical records
 
                   2015                   VA medical records
                                               Nexus opinion
                                     Current findings (medical
                                        examination/opinion)
                                     Incomplete/inadequate findings
                                     Private medical records
 
                   2016                   VA medical records
                                     Incomplete/inadequate findings
                                               Nexus opinion
                                     Current findings (medical
                                        examination/opinion)
                                     Private medical records
 


Representative Rutherford


16. Please provide the number of appeals decided in the Board of 
    Veterans' Appeals in 2016.

RESPONSE: In FY 2016, the Board issued 52,011 decisions for Veterans 
    and their families.

    a. How many were remanded, denied; and, granted?


RESPONSE: See the information, below. The historical reporting system 
    for Board decisions with multiple issues identifies the disposition 
    of an appeal based on the following hierarchy: allowance, remand, 
    denial, or other (i.e., dismissals). When there is more than one 
    disposition involved in a multiple issue appeal the ``reported 
    disposition'' for Board Statistical Reports will be categorized 
    based on the disposition hierarchy noted above.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

17. Please provide the number of appeals decided in VBA in 2016.

RESPONSE: In FY 2016 VBA decided 202,088 appeals.

    a. How many of such appeals were remanded, denied, and granted.


RESPONSE: See the information below.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


*Grants include 6,774 Board remands resolved in the appellant's favor 
    by VBA.
** Denials include *27,412 remands re-certified to the Board for a 
    decision after VBA adjudication of the remand.