[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE VA APPEALS PROCESS:
ENSURING HIGH QUALITY DECISION-MAKING FOR
VETERANS' CLAIMS ON APPEAL
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HEARING
BEFORE THE
SUBCOMMITTEE ON DISABILITY
ASSISTANCE AND MEMORIAL AFFAIRS
OF THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, NOVEMBER 29, 2023
__________
Serial No. 118-41
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
54-514 WASHINGTON : 2024
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COMMITTEE ON VETERANS' AFFAIRS
MIKE BOST, Illinois, Chairman
AUMUA AMATA COLEMAN RADEWAGEN, MARK TAKANO, California, Ranking
American Samoa, Vice-Chairwoman Member
JACK BERGMAN, Michigan JULIA BROWNLEY, California
NANCY MACE, South Carolina MIKE LEVIN, California
MATTHEW M. ROSENDALE, SR., Montana CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa FRANK J. MRVAN, Indiana
GREGORY F. MURPHY, North Carolina SHEILA CHERFILUS-MCCORMICK,
C. SCOTT FRANKLIN, Florida Florida
DERRICK VAN ORDEN, Wisconsin CHRISTOPHER R. DELUZIO,
MORGAN LUTTRELL, Texas Pennsylvania
JUAN CISCOMANI, Arizona MORGAN MCGARVEY, Kentucky
ELIJAH CRANE, Arizona DELIA C. RAMIREZ, Illinois
KEITH SELF, Texas GREG LANDSMAN, Ohio
JENNIFER A. KIGGANS, Virginia NIKKI BUDZINSKI, Illinois
Jon Clark, Staff Director
Matt Reel, Democratic Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
MORGAN LUTTRELL, Texas, Chairman
C. SCOTT FRANKLIN, Florida CHRIS PAPPAS, New Hampshire,
JUAN CISCOMANI, Arizona Ranking Member
ELIJAH CRANE, Arizona CHRISTOPHER R. DELUZIO,
KEITH SELF, Texas Pennsylvania
MORGAN MCGARVEY, Kentucky
DELIA C. RAMIREZ, Illinois
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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WEDNESDAY, NOVEMBER 29, 2023
Page
OPENING STATEMENTS
The Honorable Morgan Luttrell, Chairman.......................... 1
The Honorable Chris Pappas, Ranking Member....................... 2
WITNESSES
Panel 1
Mr. Kenneth A. Arnold, Vice Chairman, Board of Veterans' Appeals,
U.S. Department of Veterans Affairs............................ 3
Accompanied by:
Ms. Mary Ann (Merri) Flynn, Chief Counsel, CAVC Litigation
Group, Office of General Counsel, U.S. Department of
Veterans Affairs
Mr. Timothy Sirhal, Executive Director, Office of
Administrative Review, Veterans Benefits Administration,
U.S. Department of Veterans Affairs
Ms. Elizabeth Curda, Director, Education, Workforce, and Income
Security Issues, U.S. Government Accountability Office......... 5
Panel 2
Mr. Shane Liermann, Deputy National Legislative Director,
Disabled American Veterans (DAV)............................... 21
Ms. Diane Boyd Rauber, Executive Director, National Organization
of Veterans' Advocates, Inc. (NOVA)............................ 23
Mr. Michael S. Figlioli, Director, National Veterans Service,
Veterans of Foreign Wars of the United States (VFW)............ 24
Mr. Zachary M. Stolz, Partner, Chisholm Chisholm & Kilpatrick LTD
(CCK).......................................................... 26
Mr. Douglas E. Massey, President, Local 17, American Federation
of Government Employees (AFGE)................................. 27
APPENDIX
Prepared Statements Of Witnesses
Mr. Kenneth A. Arnold Prepared Statement......................... 41
Ms. Elizabeth Curda Prepared Statement........................... 45
Mr. Shane Liermann Prepared Statement............................ 77
Ms. Diane Boyd Rauber Prepared Statement......................... 82
Mr. Michael S. Figlioli Prepared Statement....................... 87
Mr. Zachary M. Stolz Prepared Statement.......................... 91
Mr. Douglas E. Massey Prepared Statement......................... 95
Statements For The Record
Bergmann & Moore, LLC............................................ 99
U.S. Court of Appeals for Veterans Claims........................ 104
EXAMINING THE VA APPEALS PROCESS:
ENSURING HIGH QUALITY DECISION-MAKING FOR VETERANS' CLAIMS ON APPEAL
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WEDNESDAY, NOVEMBER 29, 2023
U.S. House of Representatives,
Subcommittee on Disability Assistance & Memorial
Affairs,
Committee on Veterans' Affairs,
Washington, D.C.
The subcommittee met, pursuant to notice, at 11 a.m., in
room 360, Cannon House Office Building, Hon. Morgan Luttrell
(chairman of the subcommittee) presiding.
Present: Representatives Luttrell, Franklin, Ciscomani,
Self, Pappas, Deluzio, McGarvey, and Ramirez.
OPENING STATEMENT OF MORGAN LUTTRELL, CHAIRMAN
Mr. Luttrell. The subcommittee will come to order. Good
morning. Thank you all for being here today.
Today we will be taking a close look at whether VA does
enough to ensure that veterans receive high-quality decisions
in their claims on appeal. Veterans often wait for years for a
final answer on their claims and will owe them an answer that
is fair and correct.
The VA Board of Veterans' Appeals (BVA) is primarily
responsible for ensuring that veterans receive accurate
answers. When the Board decides that the Veterans Benefits
Administration, VBA, makes mistakes when initially processing a
claim, VBA is responsible for correcting those mistakes. We
know that the Board and VBA employees are dedicated to
providing veterans with high-quality care decisions.
Board leadership's primary concern is issuing a high number
of decisions on veterans' claims on appeal. Board leadership
has failed to implement measures to ensure that these decisions
are correct and fair for each and every veteran. Training out
members is more important to the Board sometimes than ensuring
veterans are receiving the right answers on their claims.
We question the accuracy of the over 90 percent quality
assurance rates that the Board has reported to Congress. How
can the Board's quality rate be that high when the Veterans
Court catches the same mistakes being made over and over again,
and when the Veterans Court stated that in the Fiscal Year of
2022, only 5 percent board denials on appeal were legally
correct?
We are concerned about whether the Board and VBA inform
specific employees about their past mistakes so that they can
learn from them. We will continue monitoring whether the VA is
training employees enough so that they can provide every
veteran with legal, accurate answers. It is important for us to
ensure that our veterans receive the fair and just outcomes
that they deserve.
To provide insights into these quality issues, we will be
hearing from VA and the U.S. Government Accountability Office
(GAO). We will also hear from Disability American Veterans
(DAV); the National Organization of Veterans' Advocates (NOVA);
the law firm of Chisholm Chisholm & Kilpatrick; veterans of
Foreign Wars (VFW); and the American Federation of Government
Employees (AFGE).
I would also like to recognize Ms. Carol Whitmore, the
junior vice commander in chief of the Veterans of Foreign Wars
of the U.S., who is with us today. Ma'am, thank you so much for
joining us today.
I want to thank everyone again for being here today, and I
am looking forward to our conversation about what we can do to
ensure the VA provides every veteran with a high-quality
decision in their claims and appeals.
With that, I yield to the ranking member for his opening
statement.
OPENING STATEMENT OF CHRIS PAPPAS, RANKING MEMBER
Mr. Pappas. Thank you, Mr. Chairman, for holding this
important hearing on the quality of the Board of Veterans'
Appeals decision-making in veterans' claims appeals.
As all of my colleagues do, I have got numerous
constituents with claims pending at the Board of Veterans'
Appeals. The current average time that it takes to have an
appeal claim adjudicated by the Board ranges from less than a
year to up to 2-1/2 years. I am sure that the panelists here
today will all agree that this is totally unacceptable. No one
should have to wait that long to find out if their appeal was
granted.
Congress tried to address this issue in 2017 with the
Appeals Modernization Act (AMA), which redesigned the veterans
benefit appeal system and created a new decision review
process, allowing veterans to choose from one of three lanes to
determine the path their appeal will follow. While the AMA has
shown promise, it is not working as fast as we hoped it would.
Now, with the implementation of PACT, there is growing concern
as to whether the Board will have the capacity to provide
timely decisions to veterans.
Today, I am hoping to gain insight into the necessary steps
for improvement of the process and how Congress can help or
hurt those efforts, because our shared commitment to veterans
demands a proactive approach to address these challenges and
fortify the effectiveness of the AMA. We must get it right
together.
In addition to addressing the speed of appeals under the
AMA, it is imperative we also focus on the Board's quality
assurance and training programs. Ensuring the accuracy and
fairness of appeal decisions is as crucial as expediting the
process itself. Robust quality assurance measures must be in
place to guarantee that veterans receive correct decisions.
Moreover, investing in comprehensive training programs for
Board employees is vital to enhance their expertise and ensure
a thorough understanding of veterans' unique circumstances.
Accordingly, I would also like to explore strategies for
bolstering quality assurance mechanisms and advancing training
initiatives, recognizing that the effectiveness of the AMA
hinges not only on speed, but also on the precision and
fairness of decisions affecting veterans.
I appreciate the efforts VA has made in the past few years
to streamline appeals decisions, but clearly more needs to be
done. In looking ahead, I see a list of goals to improve the
accuracy and timeliness of veterans' claims. I hope BVA will
discuss in detail when you plan to achieve these goals and,
more importantly, how you plan to achieve them.
This is extremely important to veterans that I serve in New
Hampshire and their families, who expect me to not only help
them navigate through this red tape, but also to cut it down
when necessary.
Thank you, Mr. Chairman. I yield back.
Mr. Luttrell. Thank you, Ranking Member Pappas.
Our witnesses today: Mr. Kenneth Arnold, the vice chairman
of the VA Board of Appeals. Mr. Arnold is joined by Ms. Mary
Ann Flynn of the Office of General Counsel and Mr. Timothy
Sirhal of VBA's Office of Administrative Review. Additionally,
Ms. Elizabeth Curda will testify on behalf of the U.S.
Government Accountability Office.
I ask the witnesses of our first panel to please stand and
raise your right hand.
[Witnesses sworn.]
Mr. Luttrell. Let the record reflect that the witnesses
have answered in the affirmative.
Thank you all for being here today. Mr. Arnold, you are now
recognized for 5 minutes to deliver your opening statement.
STATEMENT OF KENNETH ARNOLD
Mr. Arnold. Thank you, sir. Good afternoon. Chairman
Luttrell, Ranking Member Pappas, and members of the
subcommittee. Thank you for the opportunity to appear before
you today to discuss this important topic. With me today are
Timothy Sirhal and Mary Flynn.
I am a VA employee, but my relationship with VA is deeper
and more nuanced. As a veteran with 30 years of active-duty
service, and as the eldest of seven children in a family that
was completely reliant on my father's 100 percent disabled
veteran status, I view my role in VA as a sacred duty. The VA
medical care my dad received kept him alive until I was 15.
That gift was the driving factor in my decision to enlist at
the age of 17 and pursue a life of service to this great
country.
After retiring from the military and serving for 8 years in
the career Senior Executive Service (SES), I was approved by
the President nearly 5 years ago to serve in my current role at
the VA. It is an incredible honor and a deeply humbling
experience. Our sole objective is to swiftly and fully resolve
appeals to the fullest extent of the law with fair and final
decisions by a judge.
Since 1933, the law has required Board judges to be
Presidentially approved for good reason: because they must have
the judgment, experience, and authority to act on behalf of the
Secretary when applying the law to the facts of each individual
case. This has enabled the Board to say yes and grant at least
some relief in roughly a third of our annual decisions, even
after VA has previously said no. I am not aware of any other
Federal appeal system that grants relief as much as the Board
does.
VA has decreased wait times thanks to the passage of the
Appeals Modernization Act. Last year, the Board decided over
30,000 AMA appeals. Those faster decisions reflect 20 percent
fewer remanded cases and 10 percent higher grant rates. VBA
implemented over 10,000 full grants of benefits by the board
under AMA last year, averaging less than 30 days to do it. On
average, AMA appeals at the Board are fully resolved, meaning
there are no remands, approximately 4 years faster than it
takes to fully resolve legacy system appeals.
However, it takes 6 years to resolve legacy cases and
almost 2 years to resolve these AMA cases, far too long for
both. Frankly, the legacy system is holding us back from
achieving even greater success under the AMA.
Last year, the Board issued 103,245 decisions; 70 percent
of those were legacy system appeals; nearly 60 percent had to
be remanded. VA still has nearly 60,000 pending legacy system
appeals, over 20 percent of which have not been evaluated for
the first time by a Board judge because other remanded appeals
keep returning to the head of the line.
Roughly 15 percent of the pending legacy appeals are being
adjudicated for the fifth time or more. The root cause was
identified by Congress in 2017. The legacy system allows for
and incentivizes repeated revisions during the appeals process
that necessitates successive remands. Some suggest that Court
remands mean Board judges are making significant and repeated
errors. That is not the whole truth. We make mistakes, but not
the type of mistakes that would normally deny veterans extra
benefits.
The whole truth is that over 92 percent of the Board's
100,000 decisions each year are not even appealed to the Court.
When Court judges do rule on the merits, they overwhelmingly
affirm Board decisions, an average of 500 affirmances each
year, versus only one to two dozen reversals. Unfortunately, 78
percent of the appeals filed at the Court each year get
remanded without ever being seen by a Court judge.
These remands operate like legal settlements between the
attorneys and most often require a Board decision to be re-
adjudicated with more explanation for why something could not
be granted.
The Court's clerk annually approves 6,500 to 7,300 attorney
fee requests each year, almost all for remanded cases. This
generates 45 to 50 million in attorneys' fees each year, with
the majority going to a small number of boutique law firms, but
relatively few veterans receiving any increase in their monthly
compensation from a new Board decision post remand.
It is time for all stakeholders to come back together for a
holistic review of the veterans' disability system. That is why
VA has plans with VBA to host an AMA summit with all
stakeholders in early 2024.
This concludes my testimony. My colleagues and I stand
ready to respond to any questions you have.
[The Prepared Statement Of Kenneth Arnold Appears In The
Appendix]
Mr. Luttrell. Thank you, Mr. Arnold. Let the record reflect
that the witness'--excuse me, the written statement of Mr.
Arnold will be entered into the hearing record.
Ms. Curda, you are now recognized for 5 minutes to deliver
your opening statement.
STATEMENT OF ELIZABETH CURDA
Ms. Curda. Good morning, Chairman Luttrell, Ranking Member
Pappas, and members of the subcommittee. I am pleased to be
here to discuss GAO's work regarding the quality assurance, or
QA, process at the Board of Veterans' Appeals.
As you know, if VA denies a veteran's claim for benefits or
services, the veteran can appeal their case to the Board. If
the veteran is dissatisfied with the Board's decision, they may
appeal their case to the U.S. Court of Appeals for Veterans
Claims (CAVC).
The Board is filled with dedicated individuals who have
worked hard to produce record numbers of decisions in recent
years. The Board also faces large workloads and time pressures,
and these and other factors require a robust QA process to
ensure that decision quality does not suffer in favor of speed
or production.
Moreover, since 2003, VA's management of disability
compensation workloads has remained on GAO's high-risk list,
due in part to large appeals backlogs and lengthy wait times.
The Board's QA process needs to be understood in this context
and the risks that workloads pose to quality.
Compounding the risk is that the Board is not dealing with
an appeal once, but often multiple times, due to the practice
of remanding appeals that need correction either from the Board
to VBA or from the Court back to the Board. This rework is a
significant part of the Board's workload. Today, I will
discuss, first, how the Board assures and measures quality of
its decisions; and second, the extent to which the Board has a
process for continuously improving quality.
In terms of how the Board assures and measures the quality
of its decisions, the Board has a basic process to detect
errors and provide feedback to its judges. An emphasis of the
Board's QA process is checking a random sample of its draft
decisions to detect errors. Based on this check, it calculates
an accuracy rate that represents error-free decisions, meaning
that the Board determines that its judges have followed
procedure and applied the law correctly. In Fiscal Year 2022,
in response to one of our recommendations, the Board
established a goal of 92 percent accuracy, which it generally
met last year.
However, the Board does not have written policies and
procedures for calculating this accuracy rate and managing the
data supporting it. Without these policies and procedures, the
Board cannot be sure that this publicly reported measure is
accurate and verifiable.
Similarly, the Board is not monitoring whether its judges
are incorporating the feedback they receive from the QA
process. Such monitoring could inform improvements to how this
QA activity is designed and implemented.
In terms of the extent to which the Board has a process to
continuously improve quality, we found that more could be done.
Specifically, certain types of errors, such as improper
remands, remained among the most common from Fiscal Year 2020
through Fiscal Year 2022. Also, data show that the Court
remands a large majority of appealed Board decisions for full
or partial rework, which often is because the Court found the
Board's explanation of its findings to be inadequate.
Overall, the Board lacks a process to better understand
these issues, which could point to better interventions and
solutions.
First, Board officials told GAO it has no comprehensive
written plan outlining how it will accomplish the mission of
its QA process. Its efforts appear to be ad hoc.
Second, Board officials have not fully analyzed the
underlying causes of the most common decision errors or court
remands.
Third, the Board has not systematically or comprehensively
developed evidence to better understand what effect, if any,
its interventions have on quality, such as consistently
collecting feedback about training.
Finally, the Board knows little about the consistency of
its judges' decisions. Studying consistency could help the
Board understand whether there are common misunderstandings of
policy, regulation, or law.
The key practices for evidence-based decision-making I
highlight in my statement offer the Board a roadmap for
developing and implementing a process of continuous
improvement. The Board's planned evaluation of its approach to
quality assurance could help the Board develop such a process.
Having observed VA over several years, many challenges
facing the VA stem from its leaders not fully leveraging
leading management practices. Another key to addressing these
challenges is fully implementing our recommendations. We have
made several recommendations today. By effectively implementing
them, the Board would be better positioned to reduce the most
common errors and associated rework, thus freeing up resources
to decide more timely and accurate appeals.
This concludes my prepared statement, and I am happy to
address your questions.
[The Prepared Statement Of Elizabeth Curda Appears In The
Appendix]
Mr. Luttrell. Thank you, ma'am. The written statement of
Ms. Curda will be entered into the hearing record.
We will now move to questioning. I recognize myself for 5
minutes.
Mr. Sirhal, good morning. Can you imagine being a veteran
who has waited for years for an answer to your claim and then
are told that your case has gotten sent back to the beginning
because of a VBA employee did not fulfill their statutory duty
to assist?
I understand a VBA employee has a duty to assist in
developing a veteran's claim before the claim ever reaches the
Board of Appeal. In Fiscal Year 2022, the Board sent back
roughly 6,000 cases because a VBA employee failed to properly
collect all necessary evidence. We know that the national work
queue (NWQ) does not return those cases to the claims processor
who initially started the case.
My question is, so how does VBA ensure that individual
claims processors receive that feedback?
Mr. Sirhal. Thank you for the question.
Mr. Luttrell. Sir?
Mr. Sirhal. Am I on the--okay.
Mr. Luttrell. You are ready.
Mr. Sirhal. I thank you for the question.
Mr. Luttrell. Go after it.
Mr. Sirhal. VBA takes remand seriously. Of course, we want
the claim moving forward and have a decision issued, not having
the claim move backward in the process.
Mr. Luttrell. Is your microphone on, sir? I am sorry.
Mr. Sirhal. Can you hear me?
Mr. Luttrell. There you go. Yes, sir.
Mr. Sirhal. Okay. My apologies, sir. VBA uses remand data
on a--we have a programmatic approach, meaning we use it to
inform our training programs. We have seen, from a trend
perspective, is remands around exam issues. We incorporate exam
training in our initial training of new processors in our
yearly curriculum.
Mr. Luttrell. Yes, sir, I understand that. The issue is,
and I am talking with multiple institutes around the country,
is that once a case moves forward, i.e., to the Board and back
down, it does not go back to the initial processor. That
individual is not informed that if they made a mistake, that
they made a mistake, so they do not know what to correct. Then
the individual that receives the case has to basically start
over and the one that suffers is the veteran.
Mr. Sirhal. Yes, sir. What we found over the years is
this--the remand cases from the Board are a nuanced specialized
workload. We have consolidated processing at three decision
review operations centers with the goal of being more efficient
in processing and ensuring that the veteran who is impacted
gets the remand resolved as quickly as possible based on the
volume of cases that VBA decides each year. Last year we
decided 1.9 million. If we were to return the case to
individual processors, a single processor may receive one case
or less or a year.
Mr. Luttrell. The process itself, I understand the
infrastructure and it is one of those--this is one of the--if I
could put my find on one thing that would help improve and
streamline the process, it would be to not only reorganize,
restructure, or realign NWQ. Because the three institutions
that you are talking about are in place, what are the numbers
of success once those cases come back? Do you have that?
Mr. Sirhal. In the legacy space, it is about 17 percent get
granted when they come back, but in AMA, it is more than double
that last year. Between 35 and 40 percent get granted when they
come back to VBA.
Mr. Luttrell. Fairly low.
Mr. Sirhal. Higher than legacy.
Mr. Luttrell. Given the numbers.
Mr. Sirhal. Higher than legacy, which is a good thing.
Mr. Luttrell. Ms. Curda, how many times, your statement
that you just read, how many times have you read those same
bullet points off in the past few years? I would assume that
this just has not been created in 2023 or 22.
Ms. Curda. Well, back in 2021, I testified before the
subcommittee about the Board's QA process having, you know,
implemented AMA. The topic at the time was that, you know,
under AMA, the Board had not established a QA process that
addressed the changes to the system.
Mr. Luttrell. The same talking points basically?
Ms. Curda. Yes.
Mr. Luttrell. I will give you a little rope here, but it is
basically the same talking points.
Ms. Curda. Yes.
Mr. Luttrell. My question, Mr. Arnold, is, with my 34
seconds, who do these points need to fall in front of? Who is
responsible for course correcting these issues? Because if she
has been doing this since 2021, we are listening and we are
waiting for the VA to respond. Since it is 2023, no one is
doing that.
Mr. Arnold. Sir, all I can say is, as the essentially chief
operating officer for the Board, I accept accountability for
anything that we failed on here. I will--as Ms. Curda was
saying, the focus was slightly different in 2021. We had not
even established a quality assurance program under the new AMA
system we have today.
Mr. Luttrell. All right. Mr. Arnold, my time is up, and I
do not want to hold the rest of the members up, but--and I am
going to have to wire brush you on this one, you have to fix
this problem.
Mr. Arnold. Could not agree more.
Mr. Luttrell. I could say this all day long from this
chair, and you can receive it and walk out of here. Again, you
are the one.
Mr. Arnold. Yes, sir.
Mr. Luttrell. You have to fix this problem. No more the
same reports year after year after year, because as a veteran,
you understand it is the veterans that are suffering.
Mr. Arnold. I understand, sir.
Mr. Luttrell. All right. Thank you.
I now recognize Ranking Member Pappas for 5 minutes.
Mr. Pappas. Thank you, Mr. Chairman. I know VA has been
highlighting recently the record number of claims that have
been processed both through VBA and the Board, but, you know,
volume is one metric, and with such a volume of claims, we also
know that we are seeing a record number of errors as well in
absolute terms. With the PACT Act, there are some concerns
about claims that are being granted under the new law still
being denied because VBA is not following the guidance.
Standard Operating Procedures (SOPs) related to toxic exposure
risk activity, it is leading to an increase in higher level
reviews, which in turn leads to more appeals at the Board.
Mr. Arnold, could I ask you this question? Has the Board
seen a spike in these cases? In general, how have PACT Act
claims, which should be relatively straightforward, affected
the Board's caseload?
Mr. Arnold. Sir, we have seen some, but, honestly, we have
not seen a bow wave of new PACT Act claims. I think in part
because of the high grant rate at VBA.
I think another thing that is misunderstood is toxic
exposure claims. The law has not changed. What PACT Act gave us
was more conditions to presume that somebody is eligible. If
time, space, and condition are present, we can grant on
presumptive basis. It offered more presumptives. The basic
evaluation of the case is the same under the Agent Orange Act
and all of that, and that is the exposure of the veteran that
led to the injury or condition.
I can say we have not seen a bow wave yet. It does not mean
it is not coming, but we are prepared for it.
Mr. Pappas. Okay. Mr. Sirhal, maybe I can turn to you. I am
just curious, you were alluding to this a little bit before,
but as we think about communication between VBA and BVA around
error trends and what you are seeing, what kind of
communication happens there? If you could just give me a better
sense of how that information is relayed so that folks at BVA
are understanding what these trends are.
Mr. Sirhal. Thank you for the question, sir. I will break
it down into two primary communication loops, one I will call
operational. The Office of Administrative Review, where I work,
has a feedback loop with the Board of Veterans' Appeals' Chief
Counsel's Office. When a remand comes back, if the Decision
Review Operations Center employee has a question or needs
clarification or something just does not make sense to them,
they will submit that to our office through Central Office, and
we coordinate with Mr. Arnold's staff to get it clarified with
the issuing judge. That is more of an operational case-by-case
initiative.
Then the other initiative is more strategic, a remand tiger
team that is been established. Me and my staff meet monthly
with Mr. Arnold's staff to talk about more trends and
strategies we can jointly implement to not only be more
efficient in resolving remands, but look for ways to better
understand the data, to adjust our behavior, to try to reduce
remands in the future. That is focused more on the AMA space
legacy as kind of its own issue, but we want to make sure we do
not repeat the legacy remand rates in AMA and now is a critical
time.
Mr. Pappas. Yes, I appreciate that. On quality assurance, I
am concerned about these repeated remands, especially those
related to reasons and bases, essentially BVA failing to
properly explain itself. This speaks to a lack, I think, of
internal quality control before a decision goes out the door
and prioritization of quantity over quality.
If I could turn back to you, Mr. Arnold. Can you explain
for us what sort of review happens before a decision is being
issued? Why are veterans' law judges signing off on so many
flawed decisions?
Mr. Arnold. Thank you for that question, sir. First and
foremost, the Board tags a decision--or tags a case for quality
review before we know the result. It is randomized so that we
are reviewing cases that are granted, cases that are remanded,
and cases that are proposed for denial. Oftentimes it is a
very--it is a mixed bag in each case. It is a different review
standard that we are doing. The class of cases going up to the
Court is a very select class of cases where we just could not
get to yes. That is one distinct difference between how we are
evaluating cases at our level versus what goes to the Court.
It is interesting, though, that the errors we call in
ourselves, which is mostly procedural, is somewhere in the 5 to
6 percent. That is actually come up. It was closer to 8 percent
a few years ago. This is the best year we have had from a
quality perspective this past year, both under Legacy and under
AMA. The appeal rate to the Court is about 8 percent. They do
track in terms of percentage there.
The reasons and bases, I do not want to speak for my
colleague from General Counsel who agrees to these remands
between counsel, her GS-13/14 counsel with the private bar
reps, usually. I know in our private conversations, she talks
about just how fact-specific they are based on the judge's
explanation for why they have to deny. When it comes back, for
reasons and bases, it is really hard to have very clear trends
on those because it is so fact-specific to the cases. I hope
that makes sense.
Mr. Pappas. It does, and I appreciate the explanation. I am
over on my time, but I just want to underscore, I think, what
Ms. Curda was saying before about not leveraging best
management practices, not fully implementing GAO
recommendations, these are critical steps here. We stand ready
to support you and thank you very much for your service. I
yield back.
Mr. Arnold. Thank you, sir.
Mr. Luttrell. Thank you, Mr. Pappas.
Mr. Franklin, you are recognized for 5 minutes, sir.
Mr. Franklin. Thank you, Mr. Chairman, thank you, Ranking
Member, for holding this hearing. The oversight that we do here
is very critical to what we end up delivering for our veterans.
As a veteran, I appreciate all the work that you all do to take
care of them, but this is an important part of what we do.
I want to pick up a little bit more on what the chairman
was getting into with the lack of quality assurance
initiatives. It is a recurring theme. Ms. Curda, actually, I
had a hard time figuring out what was current testimony versus
what had been done before, because it really seems like a lot
of the same drumbeat over and over, and, to me, that is just
unacceptable.
When I look back, I think it is important to note some of
these. Looking at the GAO testimony that we had here regarding
QA processes, specifically, Board officials told GAO it has no
comprehensive written plan outlining how it will accomplish the
mission and goals of its QA process. Board officials told GAO
it had not fully analyzed trends or underlying causes of the
most common Board-identified errors or CAVC reprimands. The
Board has not systematically or comprehensively built or used
evidence--evidence not circumstantial, but evidence--to better
understand and improve its interventions, such as collecting
feedback about training, which comes up in some of the other
testimony. The Board does not assess Volunteer Lawyers for
Justice (VLJ) decisions for consistency, such as whether common
misunderstandings of VA policy or law exist in decisions.
Ms. Curda, do you still stand by that testimony, that those
are shortcomings, deficiencies, you see in the QA process?
Ms. Curda. Yes.
Mr. Franklin. Okay. I am a firm believer in that what gets
measured, gets done. It is important to choose what you are
going to measure because any system can be gamed if you are not
careful about your metrics. It sounds like even after
identifying those back in July 2023, we are still not there. We
do not even have the wrong metrics to try to take stock of.
Mr. Arnold, I would understand from--you know, I appreciate
you accept responsibility. That is noble of you, but at the end
of the day, that is not good enough. You are the person in
charge and these quality assurance processes are not in place.
I think in reading through all of you all's testimony and then
what we are going to get from the next panel, that is the root
of a lot of problems. You cannot fix problems that you cannot
measure and identify that you have and then figure out how you
are going to get out from under them. I want to dive in a
little bit on the decision.
You know, after the testimony, 2-1/2 years ago almost,
Congress appropriated another $228 million to hire more people
because people were--you know, lack of appropriate manning was
part of the issue. We have thrown money at that. We still do
not have a QA behind it.
I want to talk a little bit in the couple of minutes we
have about the decision to reduce the training requirements,
the experience requirements for the veteran law judges. Whose
decision was that?
Mr. Arnold. Sir, one of the things I want to clarify there
is we did not reduce the requirements to become a veterans law
judge. The previous chairman of the Board, who retired this
past year, was really thoughtful in how we hire veterans law
judges. Veterans law judges have the same criteria as----
Mr. Franklin. Yes, okay.
Mr. Arnold. I am sorry, sir.
Mr. Franklin. Well, but let us--so that is not a
requirement. Was it an unwritten rule before, because this 7
years' of experience comes up in testimony from almost everyone
else we are going to hear from later. Was it an unwritten rule
before?
Mr. Arnold. Sir, it----
Mr. Franklin. That is a pretty specific thing for----
Mr. Arnold. Yes, sir, it was an unwritten rule in a couple
of recruitments. Yes, sir, over time that--and it actually
created some challenges in the prior chairman's mind in terms
of the Board having insular thinking. We were not as diverse in
experience at the Board as we needed to be.
Mr. Franklin. You think is the Board making--are you
getting better decisions from the judges today than you were
before that change was made?
Mr. Arnold. I believe so, sir. I believe the uptick in our
quality assurance rates this year have actually demonstrated
that.
Mr. Franklin. Apparently you cannot prove the 92 percent. I
mean, you claim 92 percent, but there are no metrics that you
can actually stand and show----
Mr. Arnold. Yes, sir.
Mr. Franklin [continuing]. according to what GAO said.
Mr. Arnold. Yes, sir. We gave--I cannot--I do not know how
many questions and datasets we provided to GAO.
Mr. Franklin. Well, but you also say that, you know, most
of the times when these are remanded, there is not any change.
Well, in fact, 69 percent of the time, there are things that
change after those. I would challenge a bit of that.
Mr. Arnold. I saw that written testimony, and one of the
challenges with that analysis is there was some 2020 cases and
they said if anything changed 3 years down the road, that is an
entirely different case than the Board evaluated.
Mr. Franklin. All right. We are about out of time. I really
would hope that you would stay and listen to the rest of the
testimony from the others. Where there are discrepancies, I
would hope that as the person in charge, you would pursue
those, because, honestly, if we are here 2-1/2 years from now,
it should be radically different, or you should not be the one
sitting there testifying. Because to me, it is unacceptable
that this has not changed in the 2-1/2 years since you did this
last time.
Thank you, Mr. Chairman. I yield back.
Mr. Luttrell. Thank you, Mr. Franklin.
Mr. Deluzio, you are recognized for 5 minutes, sir.
Mr. Deluzio. Mr. Chairman, thank you. Good morning,
everyone. I want to follow up on a piece of questioning, both
Mr. Franklin and Mr. Pappas, about the high remand rate.
Mr. Franklin mentioned some of the commentary in the GAO
report about there not being fulsome analysis of underlying
causes, though, Mr. Arnold, you were talking with Mr. Pappas
and Mr. Franklin a bit about, I think, what some of those
causes are. I will give you a chance to clarify. Is there now
or are you undertaking a fulsome analysis, a study of what
those underlying causes might be or are?
Mr. Arnold. Yes, sir, we are. I am going to tell you, even
if that includes pulling individual cases. In fact, my
colleague, Ms. Flynn, was talking to me about all the remands
she pulled, looking for sort of consistency when we were
talking the other day.
I will just give one example involving a case that I think
points to the issue. We take hearings and decisions really
seriously. A judge sitting with a representative and I will
pull 2020 case from the same analysis that was afforded to you,
we had a representative and veteran sitting before a judge
saying, I am at 50 percent for this condition. I would like you
to find me eligible for TDIU, total disability for individual
unemployability, for this condition.
During the hearing--I hope everybody can come and watch a
hearing at some point. The judge is--it is non-adversarial. The
judge is trying to get to yes. The judge is like, that dog's
not going to hunt. Did not use those words. I cannot get there
based on the evidence in the medical records and what you are
saying. However, what if the combined total of the things that
you are currently rated for, I could get to TDIU for you? Does
that satisfy your appeal?
Three times yes for the veteran, yes for the
representative. That case was still appealed by private lawyers
twice at the Court and remanded twice for further explanations.
The veteran is still 100 percent TDIU, and nothing has changed.
Mr. Deluzio. In the course of doing this analysis or study,
will you be generating a report? Well, what will that product
look like?
Mr. Arnold. Sir, we will probably do something where we
will fold it into one of our required annual reports to
Congress or, if it is more AMA-specific, with those 180-day
reports we provide to Congress every 6 months. I would assume
we would fold it into something like that.
Mr. Deluzio. Okay. Ms. Curda, I will ask you, should there
be specific things we are pushing the Board to do in terms of
what that report would look at, what would be adequate to
answer some of the questions you have or the shortcomings you
found?
Ms. Curda. Sure, yes. I think it would be appropriate to
ask for a specific analysis of the root causes of remands from
the Court back to the Board. I think you should also be looking
at the remands that are going from the Board to VBA, and one of
the largest categories of errors that they find in their case
review are improper remands. An analysis of the causes of those
improper remands would be very informative as well.
Mr. Deluzio. Mr. Arnold, I see you taking notes. Any
objection to either of those or any of those comments from Ms.
Curda in terms of what you should be looking into?
Mr. Arnold. Not at all, sir. In fact, consistent with that,
this is in my written testimony, the feedback system that we
established is twofold: to ensure that VBA is appropriately
addressing the remands issued by the judges and confirming that
the Board's remand return reasons under the AMA relate only to
duty to assist errors that occurred prior to the initial claim.
One of the challenges, the biggest error we call in
ourselves for cases we pull is what we see as unnecessary
remands. Really, it is a legacy mentality that we see where
remands were much more prolific under the legacy system, still
are. It is one of the challenges we face.
Under AMA, Congress specifically limited what we could
remand for, and we see stuff still being shoehorned in that
way. It is not bad intent. It is people thinking they are
veteran-centric, because I could almost hit a recording every
time, we are in a hearing and the hearing ends with, Judge, if
you cannot grant this, at least remand it. That is not the
right answer, especially under AMA anymore. That is in our
backyard. That is something we have to address. Thank you, sir.
Mr. Deluzio. Yes, sir. A little bit of time left, sir. I
want to ask a different question about teleworking. Have you
seen negative or positive or neutral impact on productivity,
recruitment, VBA, and/or Board, and has there been any change
in administration policy in the last few months or so affecting
that?
Mr. Sirhal. Thank you for that question. As far as our
field employees, the claims processors, and I will speak about
the Office of Administrative Review who handles the remands and
the higher-level view process, our retention rate is between 2-
1/2 and 4 percent attrition rate, I am sorry, so people are
staying.
We have also staffed up the last 2 years, so we were
bringing people on. In 2022, we had a little bit over 1,100
employees, up to about 1,450 authorized last year, and we
achieved 85 percent fill rate; adding 300 more this year. We
are retaining people.
Mr. Deluzio. Okay.
Mr. Sirhal. We are producing----
Mr. Deluzio. More to say that. I see my time is out. Mr.
Chairman, I will yield back. Thank you.
Mr. Luttrell. Thank you, Mr. Deluzio.
Mr. Self, you are recognized for 5 minutes, sir.
Mr. Self. Thank you, Mr. Chairman.
Ms. Curda, how many GAO recommendations in this process
have not been installed?
Ms. Curda. Well, the report that we are issuing today has
four recommendations, and, you know, we would expect to see
some progress on those in the next, you know, year or so. On
this particular topic, those are the open recommendations.
Mr. Self. No past or open, so only the four?
Ms. Curda. Well, we have past open recommendations, but not
on the quality assurance process at the Board.
Mr. Self. Okay. All right. Very good. In your testimony,
you hired an additional 50 new veterans law judges. How many
total do you have? What percentage is that?
Mr. Arnold. Sir, we have 134 line veterans law judges. We
also have senior executive Board members, usually deputy vice
chairman or myself, who sit above them, who are also holding a
veterans law judge status.
Mr. Self. Okay.
Mr. Arnold. In the last 2 years, the plus-up has been 33
percent, I believe. Just during the last year, that portion of
that, I think, was a little over 12 percent.
Mr. Self. Okay. What did you spend the 228 million that Mr.
Franklin referenced? How did you spend that in this process?
Mr. Arnold. Most of it was--most of our budget is
personnel, sir. Almost all of our budget spend has been in
hiring personnel. This last year alone, we plussed up decision-
writing attorneys by 16 percent.
Mr. Self. I saw that.
Mr. Arnold. We have another ad out right now. Like I said,
we plussed up the judges 33 percent. We plussed up other staff,
particularly in the hearing's realm, quite a bit as well. I do
not have the exact percentage on that, sir.
Mr. Self. Yes, the reason I ask all of this is because I
also filed a bill to add two judges to the senior Court and
simply because of the cases that they cannot hear, which this
is the process that we have got to fix.
How much of this is transparency? You said you used it on
personnel, but how about transparency for the veteran, because
everything that I have heard in testimony here has been
internal processes, and yet we have a veteran at the end of the
day. What has been spent on transparency, Mr. Arnold?
Mr. Arnold. Sir, I am really glad you asked that. Around
transparency, one, I will point, a lot of people know it is
there. In fact, our web traffic has really picked up. A year
ago, the number one question for me as a veteran is, why does
my appeal take so long? We put explanations out on our website
to include data that we update monthly, quarterly, and
annually, so they know exactly what is going on, what the
challenges are, how things are getting better. In fact, it is
just been recently updated with a lot of the statistics that I
provided today.
In terms of spending, we have got several things that are
going on. Sir, we have increased our dollars, and,
unfortunately, one acquisition vehicle we have has been hung
up, which has been specifically related to quality assurance.
The Board process around quality assurance for years has been
one or two permanent personnel who sit there, and then there is
detailed counsel who go in there on 1-to 2-year details that
are supporting that. We are looking really hard at how much of
that should be permanent. Now there is a judge in charge of
that office and there is a judge in charge of the Chief
Counsel's Office that sits on top of that.
Mr. Self. Okay, thank you for that.
Mr. Arnold. Yes, sir.
Mr. Self. Ms. Curda, would you comment on that testimony?
How does that fix this problem that you just heard from Mr.
Arnold?
Ms. Curda. Well, just regarding transparency, the Board
does have its metrics on its website, so you can see on average
how much time it takes. I can tell you that this morning I had
six emails in my inbox from veterans who had read my statement,
you know, overnight, and they all were talking about how they
just did not know where their appeal was. They could not find
out that individual level of information, and staff of the
Board, you know, could not really give them answers. I think
there is an issue with individual veterans being able to see
where things are with their claims.
Mr. Self. Mr. Arnold, I will tell you I met with Veterans
Service Organizations (VSOs), this is Wednesday, Monday----
Mr. Arnold. Yes, sir.
Mr. Self [continuing]. before we came back, and they showed
me on your website their claims. They pulled up an actual claim
and it showed where they had added documents to it. The
documents were, one, PDFs. The documents, one, were not
hyperlinked, and two, when they copied the address and pasted
it somewhere, they could not see the updated documents.
I would ask you to look into that and get back to me,
because I have veterans that are very frustrated with not being
able to tell not only when their cases are going to be heard,
but they do not know what has been added to their records
because they cannot read it.
Mr. Arnold. I would like to follow up and know the
specifics on that so I could follow up. Thank you.
Mr. Self. Absolutely. Thank you.
Mr. Chairman, I yield back.
Mr. Luttrell. Thank you, Mr. Self.
Mrs. Ramirez, you are now recognized for 5 minutes.
Ms. Ramirez. Thank you, Chairman. We are discussing quality
and in the appeals process. Obviously, I think we can all agree
that we have to make some significant improvements. I want to
discuss one of the ways we continue to improve the appeals
process for our veterans, specifically through the training.
Mr. Arnold, can you walk me through the training that Board
attorneys receive to help promulgate the appeals? Specifically,
can you elaborate on how the board trains differently for older
legacy claims, newer claims handled under the Appeals
Modernization Act, as well as the new claims authorized by the
PACT Act?
Mr. Arnold. Yes, ma'am. I regret that I do not have the
curriculum in front of me, but I can give you the basic outline
of it.
When a new attorney is hired at the Board, they go through
a 6-month onboarding process that is all training. We have
changed that up in recent years to make it more heavily
weighted toward mentored writing with these differences that
you are talking about. Before it was heavily just the classroom
PowerPoint, and now there is more learn by doing. It is front-
loaded with about two--I think it is about 2 months of heavy
classroom and mentored writing. Then the remaining 4-month
period is you have assigned mentor writers--I mean, mentors who
are reviewing draft decisions that are going to different
judges where you get feedback. That is preparing them for after
their 6-month initial onboarding process, when they are full up
with the judge's team writing for that judge, that they are
just not hitting--they are hitting the ground running rather
than just starting to write at that point in a robust way.
I do not know if that answers it fully, but it is split
between understanding the distinction between legacy cases and
AMA cases. Procedurally, they are just handled differently.
Ms. Ramirez. Okay.
Mr. Arnold. Yes, yes.
Ms. Ramirez. Yes, that was specifically what I was
interested in.
Mr. Arnold. There is also--I mean, we have, I think, 2
hours of training in that around PACT Act specifically.
Somebody asked about that.
Ms. Ramirez. Okay, yes.
Mr. Arnold. There is a lot of topical things that are in
there.
Ms. Ramirez. Got it. Just a follow up on that. Is the
training that you are offering with that 6-month process, is
that only for new attorneys or are senior attorneys also given
updated training?
Mr. Arnold. Thank you for that, ma'am. Yes, senior
attorneys are given more updated training. I know in a letter
to the committee, to the chairman, and the ranking member, the
chairman just responded to, I think, specific training around
PACT Act as an example.
But training offer--we stood up a professional development
division under the Office of Chief Counsel, which also oversees
the quality assurance process, because in the past, the
training was kind of bifurcated between those two because they
were in separate parts of the organization. We consolidated
them under one umbrella. That training focuses on, topically,
so many things. They are offering seminars every week. There
are certain portions that are mandatory. There is stuff that we
say, you got to give up an hour or two to do this.
Ms. Ramirez. Send me the info. I would like to see just
some of that updated training.
Mr. Arnold. Yes. Yes, ma'am.
Ms. Ramirez. I know that we are up in time. I just want to
ask you one specific follow-up to that, and then I want to move
on to something else.
I am interested in how the Board leadership incorporates
some of the observations and feedback that they are getting
from the frontline employees on the training. Is there a
process in incorporating that feedback into the new training or
the ongoing training?
Mr. Arnold. There is, ma'am. They are all surveyed by this
professional development training staff, the attorneys who are
running that. I think at every single block of instruction, I
think they may have a survey process that gives them that
feedback.
Ms. Ramirez. Okay. Thank you. Thank you, Mr. Arnold.
I want to pivot to the findings from the GAO with the time
I have left. Ms. Curda, how does the absence of--well, in your
testimony, specifically, you mentioned that the Board lacks a
comprehensive written plan outlining how it is going to
accomplish its mission and its goals of quality assurance. Ms.
Curda, how does the absence of such a plan on the Board's
ability to set priorities, address common errors, and improve
its QA efforts?
Let me ask you a follow up, just so you can answer both,
and then we will close there. What are some key elements that
you think should be included in the comprehensive plan for a QA
process based on your understanding of best practices?
Ms. Curda. Sure, I can cover those both. I mean, the
absence of a plan means that they have a mission, which is a
valid mission, but they do not have a specific aspiration or
goal for what improvements in the quality process they want to
accomplish. It is hard to do that when you do not have any
data, specific data, on what you need to tackle and what you
need to improve.
I think a good plan would have specific goals for
improvement, metrics for what they would expect to see in terms
of changes to the goals, and specific actions they plan to take
to achieve those goals, and milestones for when those actions
will take place, and who is responsible. Those are all good
elements of a plan.
Oftentimes these are things that we do not see at the VA. I
mean, not just the Board, but across the board at the VA, we
see a lack of good planning.
Ms. Ramirez. Thank you.
Chairman, I yield back. Thank you.
Mr. Luttrell. Thank you, Ms. Ramirez.
Mr. Ciscomani, you are now recognized for 5 minutes, sir.
Mr. Ciscomani. Thank you, Mr. Chair. I want to--I have a
few questions here and piggyback off some of my colleagues'
comments. I cannot find my glasses. Oh, here we go.
There has been progress in the number of claims and appeals
being processed, but recent reports have also indicated that
this has come with a drop in attention and detail and a high
rate of claims wrongly thrown out or continually sent back and
forth between VBA and the Board. Today, I hope that we can
learn on how we can best streamline VA processes and ensure our
veterans and their families are taken care of.
First question, Ms. Flynn. In roughly 80 percent of appeals
in the Court in Fiscal Year 2022, the VA Office of General
Counsel agreed that the Board made substantial errors in their
decision-making and recommended a Veterans Court remand the
cases back to the Board. What do you think are some of the
primary factors contributing to the high rate of necessary
corrections? What are some of the most common errors your team
has encountered? Also, do you think it is important for
individual Board employees to learn from their errors so that
future veterans are not harmed in the same way?
Ms. Flynn. Thank you. Yes, my office represents the
Secretary before the Court of Appeals, and so we do so keeping
in mind that the Secretary is the Nation's advocate for
veterans. With that backdrop, plus the fact that this is a
uniquely pro-claimant system, the end result is there are often
times where we are the ones working with appellant's counsel to
identify error and send it back for corrections.
Regarding the typical or the most prevalent errors would be
a failure in the duty to assist. Most of those center around
inadequate exams, the medical exams, and then inadequate
reasons or bases. That centers on the explanation that was
given for the reason for the decision. That is a tough--it is
tough to quantify, it is tough to describe. It is very fact-
specific, and it may hit one judge differently than another,
the same way as it does different attorneys.
The joint motions for remand or the joint motions for
partial remand are the product of negotiation between the
parties, and oftentimes there is a lot of horse trading. The
case may have multiple issues when it started at the regional
office (RO), some of those were granted or fell apart, fell
away as they worked their way. The Board may have granted some
of those, still denied others. When it gets to the Court of
Appeals, any number of those can be ripe for a decision. They
may seek a----
Mr. Ciscomani. I am going to jump in here because I do not
want to run out of time. To finish up here, if you can just
briefly tell me how important this is or how are individual
employees learning from their mistakes or their errors through
the process to make sure it does not happen again?
Ms. Flynn. Yes, sir. We have several touch points that we
have with the Board where we have been working. We provide
training on a regular basis. We also are in regular meetings
with other components of VA. We have quarterly VLJ training. We
participated in the Board's conference in April. We participate
in the AMA work group with both VBA and the Board. All of those
are opportunities for----
Mr. Ciscomani. Well, thank you for highlighting that. When
we look at over 80 percent, just roughly 80 percent, of appeals
having some kind of mistakes, I am hoping that these training
or sessions that are happening to make sure it does not happen
again, there is a measurable way to prove how productive they
are actually being, because with 80 percent does not seem that
that is really working. I encourage you to, you know, look into
that.
Mr. Arnold, I have good two questions for you real quick.
When the VA Office of Administrative Review catches unnecessary
remands by the Board, how does the Board's quality assurance
and training offices, back on the same topic here, ensure that
all Board employees learn from those errors that they made so
they can prevent errors from happening again? Same vein of the
question, but now to you.
Mr. Arnold. Yes, sir. That is an excellent question,
actually, because every individual error that is called is
transmitted directly to the judge and copying their SES-level
judicial supervisor, a deputy vice chairman, and so they are
getting that directly. However, in a combined basis, they are
publishing monthly for the entire Board a digest of errors.
There are Word documents attached to that that highlight the
common trends and tips for avoiding for all employees, and that
is distributed on a monthly basis.
Mr. Ciscomani. Appreciate that. I am out of time. Just real
quick, I will throw in there was the 228 million that have been
mentioned by several of my colleagues already. As an
appropriator myself, I am looking at this very carefully and
see that the--and your written testimony. The written testimony
today mentions nothing about the Board leadership and what it
is doing to ensure that every single veteran can accurately get
answers on their claims and appeals.
If, you know, throughout the rest of the questions sort of
jump in on if there is anything that the Board has done to
improve the quality assurance program since July 2021. Two
hundred and 20 million is a lot of money. Again, as an
appropriator, I am looking at this very carefully.
Mr. Arnold. Thank you, sir.
Mr. Ciscomani. Thank you.
Thank you, Mr. Chair, yield back.
Mr. Luttrell. Thank you, Mr. Ciscomani.
Mr. McGarvey, sir, you are recognized for 5 minutes.
Mr. McGarvey. Thank you, Mr. Chairman. Thank you all very
much for being here.
Mr. Arnold, last time you were before the subcommittee, I
raised some concerns about workforce issues at BVA. I just want
to continue in that vein today because you have heard a lot
this morning and, as you know, our veterans deserve the best
care possible. Also, that our public servants at the BVA ensure
that our vets get fair and objective decisions. They are the
bread and butter of the whole operation. That is why I think it
is important to emphasize that BVA needs increased
appropriations, resources, and tools to tackle the caseload
backlog and hire more staff. We have got to ease the burden on
our processing workforce.
We are seeing in real time how successful the PACT Act has
been in hiring and beefing up the VA to address the increased
caseload. I know it is working in my district in Louisville,
Kentucky. I just want to float the idea now of the need for a
similar mechanism across other sectors of the VA, specifically
with the BVA.
Mr. Arnold, in the last hearing, I highlighted BVA's 7
percent attrition rate in Board attorneys. We talked about
that. You stated it has decreased in recent years, which is
great, but, as you know, is still above average, and we have
got to continue to get that down.
I also asked you about the decision to implement a limited
competitive GS-14 career path for new hires instead of the
automatic GS-14 career path. I was concerned to read in AFGE's
testimony today that Board leadership has not responded to
AFGE's request to reconsider this decision.
Mr. Arnold, when do you think you can get them an answer
by?
Mr. Arnold. Sir, I do not know that I have that. I think it
may have gone to one of our other executives, but I will check
on that. I imagine it is not long. If it was very recent, then
I for sure have not seen it.
I know there was a prior inquiry some months ago while
there is something in arbitration. That complicated the
response because of the arbitration. I do not know if that is
what we are talking about or not. Yes.
Mr. McGarvey. Whatever you can do to get that answer to
them, obviously, and, like I said, this is to make sure our
veterans are getting that top quality care they deserve.
Mr. Arnold. Yes, sir.
Mr. McGarvey. I do want to turn to one tweak that AFGE
recommended in their testimony, and I thought it was
compelling. They recommend that the Board create a competitive
journeyman, nonsupervisory, GS-15 attorney position. These GS-
15 positions would reward hardworking employees for their
contributions and incentivize retention. As you know, this
model already exists in the VA Office for General Counsel, and
I think it would be a really good opportunity to address that
attrition rate which we talked about. I just want to flag for
you all, for my colleagues, something I would like to explore
as a legislative initiative.
Just along those lines, Mr. Arnold, what impact do you
think creating 100 to 200 competitive journeyman,
nonsupervisory, GS-15 attorney positions would have on
recruitment and retention at BVA?
Mr. Arnold. It is hard to know for sure what it would have
on recruitment and retention, but I cannot imagine it would
have a negative impact.
I do--one of the things we look at in our workforce model,
we run a very flat organization, and that has been super
challenging for us. Around our GS-15 ranks, we have plussed up
about 33 percent, at least during my tenure. In the last couple
of years, I think we had roughly 20 GS-15 positions that were
available at the Board and now it is more like 30, which is
good. Those are the positions, quite frankly, that we deplete
and move into the judge ranks internally. In fact, we
completely emptied our bench recently on that. This is
something we are looking at in terms of how we organize to
leverage the different grade structures that are available.
I do not have help with me, behind me today back-benching
because we put everybody on the line to try to serve as many
veterans as we can. One of the things we try to run lean on is
not having people who are not directly serving veterans. We are
balancing those two things.
Mr. McGarvey. Obviously, we want our veterans to get,
again----
Mr. Arnold. Yes, sir.
Mr. McGarvey [continuing]. that is the care they deserve,
the care they have earned. I appreciate that.
I yield back.
Mr. Luttrell. Thank you, Mr. McGarvey.
I would like to thank the panel for coming today. Ms.
Curda, thank you for all of the evidence that you pushed out in
front of us.
Mr. Arnold, as a military man, we do not jump out of a
helicopter or an airplane. We do not even back up a pickup
truck without a plan of attack, from step off to mission
complete. We do not do that. I can assure you, sir, I will be
waiting for the answers and the processes that you put together
from what she put out today. Is that fair?
Mr. Arnold. Fair enough, sir. In fact, I could not agree
more with some of those recommendations. In fact, one is duh,
we should have been done doing that a long time ago.
Mr. Luttrell. Yes, sir, I agree. Okay, so panel one is
concluded. Thank you very much.
Panel two, please be seated.
[Recess.]
Mr. Luttrell. Welcome, everyone, and thank you for coming
today. Our second panel of witnesses will include Mr. Shane
Liermann of Disabled American Veterans; Ms. Diane Boyd Rauber
of the National Organization of Veterans Advocates; Mr. Michael
Figlioli of Veterans of Foreign Wars; Mr. Zachary Stoltz of
Christian--or excuse me, of Chisholm, Chisholm, & Kirkpatrick;
and Mr. Douglas Massey of the American Federation of Government
Employees.
I ask the witnesses to please stand and raise your right
hand.
[Witnesses sworn.]
Mr. Luttrell. Let the record reflect that the witnesses
have answered in the affirmative.
Thank you all for being here today. Mr. Liermann, you are
now recognized for 5 minutes to deliver your opening statement.
STATEMENT OF SHANE LIERMANN
Mr. Liermann. Thank you. Chairman Luttrell, Ranking Member
Pappas, and members of the subcommittee, we are grateful for
the opportunity to appear before you.
As you know, DAV is a congressionally chartered and VA-
accredited veteran service organization that provides claims
and appeals representation to veterans and their families at no
cost. In Fiscal Year 2022, DAV represented nearly 20 percent of
all appeals decided by the Board of Veterans' Appeals. My
remarks today will highlight DAV's concerns and recommendations
for the legacy and AMA appeals remands and the Board's intake
and docketing of appeals.
Mr. Chairman, in the appeals legacy system, the Board is
obligated to remand cases for duty to assist errors that occur
at any time while the veteran's appeal was pending. If a
veteran's case is remanded, the file will go back to the agency
of original jurisdiction (AOJ). In each remand, the Board will
lay out specific remand instructions to which the AOJ must
adhere to.
In 2020 and 2021, the Board's legacy remand rate was 40
percent. In 22, the remand rate rose to 42 percent. Per the
last quarterly report for 23, the legacy remand rate was 44
percent.
Appellants have the ability to submit new evidence
throughout a legacy appeal. While we acknowledge that this
could be a factor for the increase in remands, there are clear
issues regarding the quality of these local decisions, which we
believe can be traced back to training.
In 2020 and 2021, the Board's AMA remand rate was 28
percent. In 22, the rate rose to 29 percent. Per the last
quarterly report for 23, the AMA remand rate was 32 percent.
One of the original intents of the AMA was to reduce the
amount of remands by the Board. However, the increased rate of
AMA remands establishes that VBA claims personnel are
committing a high volume of duty to assist errors pre-decision.
The Board's legacy and AMA remand decisions both increased
during 22 and 23. We recommend the Board to not just determine
the root cause of these increased remands, which we believe are
mostly development errors caused by the AOJs, but provide
specific training on these issues with VBA.
It is imperative that the Veterans Benefits Administration
focus the training on the law, not internal manuals which are
not legally binding.
Mr. Chairman, we have concerns over the intake and
docketing of AMA appeals. Although the clerk of the Board was
created in 2020 to correctly docket appeals, DAV continues to
discover AMA appeals that are deemed invalid and should not
have been docketed.
For example, some veterans who have received a proposed
reduction from VBA are filing an appeal directly to the Board.
However, since this is a proposed action and not a final
decision, the issue is not under the Board's jurisdiction and
thus is an invalid appeal. This may not be discovered for
months or longer while the veteran is completely unaware. In
many instances, this has negatively impacted veterans as they
could not take other timely action.
In 2021, the Board learned that a number of veterans may
have had their Board appeal forms mistakenly rejected for being
untimely. In January 22, the Board sent out another notice that
delays to the Board's ability to mail correspondence may have
impacted timely submissions.
Mr. Chairman, given the problems with the intake and
docketing of AMA appeals, we recommend that a decision by a
veterans law judge on the timeliness of the notice of
disagreement (NOD) be added to the appeals process.
We believe that most appeals can be tracked back to
development errors in the claims process, which really is
verified by the increased rates of legacy and AMA remand
decisions. Without concentrated training to correct these
issues, veterans and their families will continue to experience
appeals with extremely long waiting periods just for VA to
finally get it right. We urge the Board to take action to
improve the docketing of appeals as well, as veterans should
not suffer from an inadequate intake process.
This concludes my testimony, and I look forward to any
questions you and the subcommittee may have.
[The Prepared Statement Of Shane Liermann Appears In The
Appendix]
Mr. Luttrell. Thank you, sir. The written statement of Mr.
Liermann, will be entered into the hearing record.
Ms. Rauber, you are now recognized for 5 minutes to deliver
your opening statement.
STATEMENT OF DIANE BOYD RAUBER
Ms. Rauber. Chairman Luttrell, Ranking Member Pappas, and
members of the subcommittee, NOVA thanks you for the
opportunity to testify on ensuring high-quality decision-making
at the Board of Veterans' Appeals.
NOVA members, who are accredited attorneys and agents,
practice all across the country. Nearly all of them represent
veterans, family members, survivors, and caregivers before the
Board. NOVA participated in the original discussions leading to
the passage of the AMA, and we welcome VA's statement today
that they are ready to come back and sit down at the table and
talk about some of the issues with it.
At a recent legislative hearing, Chairman Luttrell noted
that the Board carries a very heavy rucksack. We recognize the
ongoing efforts of Board employees to deliver accurate
decisions and timely benefits.
We also thank Congress for increasing the Board's budget 63
percent since 2019. These resources, however, must translate
into many more decisions in the years ahead.
Unfortunately, stakeholders have minimal insight into the
quality assurance program employed by the Board. Today's GAO
report details the problems with that program. We urge the
subcommittee to continue its oversight to ensure their
recommendations are implemented and the results are transparent
to the public.
Much of the Board's focus is on court remands. The Board
has mischaracterized court remands, stating that remands are
done to correct harmless error, and court clerks create
remands. A remand is either a negotiated agreement between
counsel for the parties or a court order because there is a
recognized error in a decision.
There is also the erroneous perception that reasons and
bases remands do not result in benefits for veterans. The
subcommittee has been provided with statistics that indicate
otherwise, and our members can attest to this fact through
their experience.
We take issue with the vice chairman's characterization
today of our members' efforts. The GAO report provides
recommendations on how the Board can analyze court remands to
improve decision quality and avoid repeating mistakes that
result in remands.
In fact, court remands are not the main problem in this
system. Rather, a far more urgent matter is the continuing high
rate of remands from the Board to VBA. AMA remands, while
somewhat lower, still hover around one-third.
Unfortunately, data on the Board's website does not provide
insight as to the causes for remands. NOVA members, however,
report AMA remands are often due to the same reasons many
remands occur in legacy cases: inadequate or unnecessary VA
exams and development.
Of course, one goal of the AMA was to reduce remands.
Veterans relinquished the right to retain their docket date on
remand in exchange for VA's commitment to issue faster
decisions, particularly in the direct review docket. There was
an assurance that there would be more up or down, grant or deny
decisions. Veterans relied on this commitment when opting into
the new system at VA's urging. With a third of decisions being
remanded in the AMA, that expectation is not being realized. We
urge Congress to allow represented veterans to waive the duty
to assist at the Board to reduce remands.
The continuing cycle of remands is not solely the Board's
problem. VBA also plays a role by frequently failing to obtain
adequate exams when needed, failing to properly consider
private medical evidence and apply the benefit of the doubt,
and ordering unnecessary exams.
When you reduce remands, you reduce the backlog. When you
reduce the backlog, employees have a more manageable workload.
When employees have a more manageable workload, they produce
higher quality decisions. Higher quality decisions provide
better outcomes for veterans, which is a common goal we all
share.
The Board states that it is examining the root causes of
continuing remands. We urge the subcommittee to continue its
oversight on this issue.
Finally, the subcommittee sought feedback on Board
determinations of whether a notice of disagreement has
initiated an appeal. The Court of Appeals for Veterans Claims
recently issued a decision in the Kernz case. The Court found
Mr. Kernz' appeal was moot because the Board corrected its
error and docketed the appeal it found untimely. However, that
case revealed other veterans who received such letters were not
so lucky. Counsel for Mr. Kernz estimated that somewhere
between 1,500 and 2,000 other claimants received erroneous
letters. The Board was unable to accurately determine how many
were issued because of problems with its electronic systems.
Although the Board published a notice, without an accurate way
to determine exactly how many claimants were impacted, there is
no doubt there are veterans who have no idea that their appeal
could be reinstated.
We thank Chairman Luttrell for introducing H.R. 5891, which
would require the Board to include a written determination of
whether the Notice of Disagreement was adequate and timely. It
is critical that this basic jurisdictional question be answered
by the decisionmaker and not by an administrative employee.
We thank you again for the opportunity to testify today on
this important topic and are happy to answer any questions.
[The Prepared Statement Of Diane Boyd Rauber Appears In The
Appendix]
Mr. Luttrell. Thank you, ma'am. The written statement of
Ms. Rauber will be entered into the hearing record.
Mr. Figlioli, you are now recognized for 5 minutes to
deliver your opening statement, sir.
STATEMENT OF MICHAEL FIGLIOLI
Mr. Figlioli. Thank you. Chairman Luttrell, Ranking Member
Pappas, and members of the subcommittee, on behalf of the men
and women of the Veterans of Foreign Wars and it is auxiliary,
thank you for the opportunity to provide testimony with regard
to the BVA and its practices.
The passage of the Appeals Modernization Act was to
streamline the appeals process. Under the legacy appeals
system, appellants too often had to endure lengthy delays of
months, sometimes years, to navigate a confusing and complex
structure, and some are still now stuck in that outmoded
system.
A Notice of Disagreement is the first step in the appeals
process for veterans seeking a review of their disability claim
before the VA. While the NOD is a formal expression of
disagreement with the decision, historically it does not
constitute an appeal to the BVA. The legacy NOD initiated the
appeals process, serving as the first official notification to
VA that the veteran disagreed with their decision. The veteran
would then have to complete Form 9, certifying the appeal to
the BVA for docketing and review by a veteran's law judge.
Under the legacy appeal system, this is where the appeals
often get stuck in the churn based on docket date, then
awaiting assignment and review by their advocate, who would
then submit an independent hearing presentation on their
behalf. What became clear to VFW was that this process was
archaic and generally unnecessary. VFW determined that the
Independent Hearing Presentation (IHP) was not based on law or
regulation and likely a holdover from practices years ago. If a
quality argument was of record, the appeal could proceed
directly to the judge after our staff completed the quality
review.
VFW has eliminated its excess workload of legacy appeals.
For more than a year, we have been at functional zero, which
means that legacy appeals continue to churn through the remand
system, reappearing at the BVA at any time.
The Appeals Modernization Act was intended to allow for a
review in a timelier fashion. VFW is concerned with the excess
workload in the AMA inventory. By focusing mostly on legacy
appeals reduction and cases advanced on the docket, the
remaining appeals languish, while more appeals continue to be
certified to the Board. Hiring more staff is an excellent step
and one that we applaud. Delivering more decisions is
admirable, but they must be accurate and timely, and not just a
number in a performance plan.
The remand process from the BVA to VBA is a crucial aspect
of adjudication, and often the most confounding. Workflow may
not keep pace with the progression of the appeal. When the BVA
identifies deficiencies in the appeals process, it remands the
case back to VBA for further action. This acknowledges that
some cases may not have been thoroughly examined in the initial
stages. It also reflects VA's commitment to ensuring a fair and
comprehensive review of veterans claims.
VFW has found if the record was fully associated with all
the evidence or a complete review completed prior to a
decision, remands are unnecessary. VFW is aware that the remand
rate for legacy appeals is over 40 percent. The typical legacy
appeal has been remanded at least twice or more. The purpose of
AMA was to eliminate remands altogether.
It is the VFW's position that communication between the BVA
and VBA is critical during this process. Clear directives that
decision-making must comply with will help streamline further
development of cases. Effective collaboration between entities
is essential to ensure that the remand process serves its
purpose without unnecessary complication.
The VBA relies on various sources of data to include data
from the BVA. How VBA uses this data is essential in
understanding their commitment to continuous improvement.
VFW would like to thank the VA undersecretary for benefits
and his staff for showing a willingness to incorporate
important changes in law or administrative process into their
training. By using remand data and scrutinizing these patterns,
VBA can pinpoint areas where its process may need refinement.
This will allow VBA to address systemic issues and help guide
the development of targeted training programs to improve
production.
The BVA has a substantial role in the adjudication of
claims. Its decisions are at times subject to review by the
CAVC, which provides legal guidance and precedents that may
influence how cases are adjudicated. This increases accurate
application of the law. If a BVA decision is overturned, it
proves that there may be flaws in the initial adjudication. BVA
must involve continuous evaluation of its decisions in
identifying errors, then implement corrective measures that
improve quality and reduce the likelihood of future reversals.
While VFW was pleased with some of the reforms and changes
made at the BVA over the last several years, there is work to
be done. The AMA is a framework whose intent must continue to
be revisited to keep pace with changes in regulation.
Chairman Luttrell, Ranking Member Pappas, this concludes
our testimony, and I am happy to answer any questions you may
have.
[The Prepared Statement Of Michael Figlioli Appears In The
Appendix]
Mr. Luttrell. Thank you, sir. The written statement for Mr.
Figlioli will be entered into the hearing record.
Mr. Stoltz, you are now recognized for 5 minutes to deliver
your opening statement.
STATEMENT OF ZACHARY STOLZ
Mr. Stolz. Chairman Luttrell, Ranking Member Pappas, and
members of the subcommittee, thank you and good afternoon. I am
Zach Stoltz, a partner with Chisholm Chisholm & Kilpatrick. CCK
is a law firm with dozens of VA-accredited attorneys and
advocates handling VA benefits claims at all levels of the
process. I have personally spent the bulk of my career
practicing before the U.S. Court of Appeals for Veterans Claims
and the U.S. Court of Appeals for the Federal Circuit. As part
of a pro bono program with DAV, my office has handled over
15,000 appeals at the CAVC--as part of a pro bono program with
DAV, my office has handled over 15,000 appeals at the CAVC over
the past 15 years.
The Board of Veterans' Appeals was given a herculean task
with the passage of the Appeals Modernization Act. Already
struggling with huge backlogs, it was expected to work down
legacy cases while simultaneously adjudicating cases in the
brand new AMA system. There is no question the men and women at
the Board work hard every day to serve our Nation's veterans
and their families. Congress and taxpayers have supported the
Board with significant investments, and so far production has
not reflected this.
Since Fiscal Year 2020, the Board's budget has surged by
approximately 61 percent, escalating from $174 million in $2020
to $285 million in Fiscal Year 2023. Strikingly, the increase
in budgetary allocation has not proportionally translated into
enhanced productivity. In comparison, the Board only decided .5
percent more appeals in 2023 than in 2020.
The chairman's latest report lays some of the blame for the
Board's inefficiency on the Court of Appeals for Veterans
Claims. In my nearly 20 years of practice, I have noticed it is
not uncommon for some at the Board to complain about the
Court's oversight, like the way District Courts complain about
Appellate Courts and Appellate Courts complain about the
Supreme Court.
Putting aside for the moment the mistaken notion that many
remands are simply for the Board to explain itself better, the
CAVC remanding 6-to 7,000 cases a year cannot explain why the
Board is not deciding more than an average of 95,000 cases over
the past 4 years. The Board simply must adjudicate more cases.
It is the inescapable bottom line.
There is a role for advocates to play in this process. In
our written testimony, CCK proposed that the Board more
routinely accept waiver of director of compensation
consideration of 4.16(b) claims and the duty to assist. Waiver
is not to be taken lightly. The duty to assist is a vital part
of VA's nonadversarial adjudicatory system. With the growing
sophistication of advocates, both in the VSO and private bar
communities, there is a place for knowing waiver. As many of
the witnesses here today noted, the remand rate from the Board
to the regional offices is very high, allowing for advocates
and the veterans they represent to waive certain procedures
when a record is fully developed will move cases along faster.
This also makes more sense as we see the promises of the
AMA come more into focus, but also some of the pitfalls.
Remands are far more devastating in the AMA because veterans
lose their place in line at the Board when their cases are sent
back to the regional offices.
Everyone in this room today works to make the VA
adjudicatory process better for our Nation's veterans. The
Board is a linchpin and, frankly, the place where tens of
thousands of veterans can receive justice. This hearing and
hearings like it are vital to ensuring clear-eyed oversight of
the Board's results.
I appreciate being here today, and I look forward to your
questions.
[The Prepared Statement Of Zachary Stolz Appears In The
Appendix]
Mr. Luttrell. Thank you, sir. Mr. Stoltz will be entered
into the hearing--the written statement of Mr. Stoltz will be
entered into the hearing record.
Mr. Massey, you are now recognized for 5 minutes, sir, to
deliver your opening statement.
STATEMENT OF DOUGLAS MASSEY
Mr. Massey. Chairman Luttrell, Ranking Member Pappas, and
members of the subcommittee, thank you for inviting the
American Federation of Government Employees to participate in
today's hearing. My name is Douglas Massey, and for the past 7
years, I have had the honor of serving as President of AFGE
Local 17, representing approximately 1,000 attorneys and
support staff at the Board of Veterans' Appeals. It is a
privilege to offer insights to this subcommittee on ways to
enhance the Board's appeals process for our Nation's veterans.
The foundation of well-informed decisions lies in the
perspectives of those directly engaged in the work. This is
where AFGE plays a crucial role. My testimony today aims to
highlight areas where both Board leadership and this
subcommittee can support dedicated Board attorneys, focusing on
recruitment and retention, training, and workload and
performance.
The first issue I will address is a career path for Board
attorneys, which Board leadership downgraded from a GS-14 to a
GS-13. This undermines the VA's and this subcommittee's goal of
recruitment and retention of talent. Board management has
effectively limited the career path for Board attorneys,
widening the competitive pay gap among attorneys in the public
and private sectors. We firmly believe that this committee
shares our commitment to ensuring that veterans claims receive
the highest level of attention.
Beyond restoring the GS-14 career path, we further propose
that the Board create a nonsupervisory GS-15 attorney position.
Establishing this possibility for attorneys would significantly
contribute to the long-term recruitment and retention. It is
noteworthy that nonsupervisory GS-15 attorneys exist within
VA's Office of General Counsel, setting a precedent. We ask the
committee to take legislative action.
Second, the Board's decision to hire Board judges without
any veterans law experience is equally disruptive and
detrimental to the Board's mission. Historically, Board judges
were required to possess a minimum of 7 years of experience in
veterans law, acknowledging the intricate nature of the work.
Several years ago, the longstanding 7-year requirement was
abruptly eliminated from the Board judge hiring criteria. The
result of this decision has been disastrous. Experienced judges
are signing or finalizing three times as many decisions per
week compared to their inexperienced counterparts.
In addition to fewer decisions, attorneys complained that
the inexperienced Board judges struggle with approving quality
decisions, requiring that attorneys train the Board judges for
whom they work. Similarly, many of the Board's experienced
Board judges are now tasked with training their new,
inexperienced colleagues, which detracts from time they could
devote to signing decisions. Board judges are already under
immense pressure to review and sign at least 20 decisions a
week, conduct numerous hearings, and mentor attorneys.
Furthermore, the hiring of inexperienced Board judges has
demoralized attorneys because it has foreclosed promotion
opportunities to these coveted positions. Many surveyed
attorneys have indicated they plan on retiring earlier than
expected. AFGE requests that the committee take action and
propose codifying the 7-year experience requirement for entry-
level Board judges into law.
Third, the Board's recent failure to prioritize quality
through effective training has left attorneys frustrated and
demoralized. AFGE, recognizing this gap, initiated its own
successful training program. Despite the program's success,
upper management has yet to implement a similar initiative. An
alarming example of the training gap is the Board's offering of
only 2 hours of mandatory training on the PACT Act in the past
year compared to VBA's 15 hours. This inadequacy leaves
attorneys unprepared to navigate the nuances of the PACT Act,
risking errors and inadequate decisions for veterans.
Insufficiently trained attorneys contribute to delays, a
backlog of cases, and ultimately hinder veterans access to
benefits.
Last, while the Board's output is a priority, an exclusive
focus on quantity over quality harms veterans and disrupts the
entire appeals process. AFGE strongly urges the Board to lower
the quota, allowing sufficient time for the required de novo
review of claims files and the issuance of high-quality
decisions. AFGE members believe that making straightforward
changes to Board attorneys' compensation, promotion
opportunities, training, and performance measures, together
with setting minimum experience levels for Board judges, will
greatly benefit the productivity and effectiveness of the
Board.
We look forward to working together collaboratively to make
the changes we can. Thank you, and I look forward to answering
your questions.
[The Prepared Statement Of Douglas Massey Appears In The
Appendix]
Mr. Luttrell. Thank you, sir. The written statement of Mr.
Massey will be entered into the hearing record.
We will now move to questioning. I recognize myself for 5
minutes.
The remaining World War II vets into Korea, into Vietnam,
into the Gulf War, and into the two wars we previously fought
that just recently ended, all of those servicemembers or
veterans are moving into the Veterans Affairs organization. The
amount of weight that that Department has to shoulder now that
our generation, my generation, are moving out, they are doing
everything they cannot to scuttle. We are asking them to do
everything in the right for us, and they are trying to shoulder
that. I want that to be said right now, and I want them to hear
me say that.
Each one of you listed off multiple issues that need to be
addressed. Absolutely. Mr. Stoltz, you listed off--the weight
of your statement holds a lot to me.
Mr. Massey, your discussion is about us downgrading the GS
levels and the caliber of attorneys that we are going to get
inside the VA system, correct?
Mr. Massey. Could you please repeat the question?
Mr. Luttrell. Your statement revolved around the type of
attorneys that the VA will be receiving because we lowered the
GS levels, correct?
Mr. Massey. Correct.
Mr. Luttrell. All right. Here is my issue. We are putting
all of these issues out in the open that need to be addressed,
and we are asking the VA to address them in its entirety. Here
is 500 issues that you guys are absolutely failing on. That big
machine cannot work like that as hard as it tries.
From the GAO statement over the past years, I keep hearing
the exact same thing, that we are asking to accomplish these
many things. I am going to ask this question, and I want each
of you to answer it. If you had to pick one issue that I could
hand to Mr. Arnold and say, you have got 2 weeks to give me an
answer and 6 weeks to fix it, and we take smaller bites of this
grand apple that we are trying to swallow instead of sitting in
these hearings over and over and over, what does that look
like?
Mr. Liermann, if you had one thing you could say, Mr.
Arnold, this is absolutely what I need to be done for our
veterans that I think would move the needle in the right
direction? Do not give me the legislation that we are pushing
already. I need concrete facts. What is that one thing?
Mr. Liermann. Training.
Mr. Luttrell. Training. I hear training all the time. Okay?
VA employees, from what I understand, only have to come into
the VA brick-and-mortar twice a month. What does training mean?
Mr. Liermann. I think training in this instance means
looking at why these remand decisions or these errors are being
made and sitting down and explaining it to the attorneys at the
Board and, additionally, explaining this to the employees at
VBA.
Mr. Luttrell. Is that written out somewhere? Somewhere in
their organization or your organization, is it, because if we
go into a meeting and we just talk to each other, you are going
to retain about 2 minutes of the information that I am saying.
Is what we are asking for from our organizations written down
somewhere? I can hand that to him and say, push this down
inside your organization so we can change this. That is what we
need. If that does not exist, sir, let us get that done.
Mr. Liermann. Roger.
Mr. Luttrell. Okay.
Ms. Rauber.
Ms. Rauber. Well, Vice Chairman Arnold said a little
earlier that Board attorneys and judges are too often going
back to the legacy system style of doing things and continuing
to remand when they should not be. That is something that was
promised under the AMA, so I think you have to be looking at
why you are remanding cases that should not be remanded. You
cannot solve this problem if you cannot figure out why you keep
remanding cases.
Mr. Luttrell. Mr. Figlioli.
Mr. Figlioli. Yes, thank you. It goes hand-in-hand with
training and what Diane just said, quality review. If you are
putting out a product that does not meet the standard, then how
do you know to fix those issues? We have to train them better.
We have to agree on what that is going to look like. They have
to know what the process is, understand the law, and apply it
properly, so we do not end up in the constant remand cycle. We
do not end up with things going back and forth between the BVA
and the VBA. That lawyer, that law judge, that staff attorney
needs to know what quality product they need to produce for a
veteran in order for that appeal to be heard, but then also for
them to be successful as well.
Mr. Luttrell. Mr. Stoltz.
Mr. Stolz. More decisions from the Board. The process has
to keep moving. The only way that veterans are going to be
served is if the line keeps moving, and there have to be more
decisions.
Mr. Luttrell. More decisions by the Board.
Mr. Stolz. It is not going to----
Mr. Luttrell. See me after class. Sorry.
Mr. Massey.
Mr. Massey. Yes. Veterans are not widgets. They are
warriors. I think we need a different culture at the Board, a
learning culture, a growth culture. I think we are kind of all
saying the same things.
Last night, briefly, I talked to an attorney. He said he
wanted to be switched to a different veterans law judge, and I
asked why. He said he is a new judge, does not understand the
law. I said, what are the conflicts? He says, I would like to
grant a lot of these decisions. He wants to remand them or deny
them.
That is only one issue I brought up, is the inexperienced
veterans law judges, but proper training, proper compensation,
treating the workforce with respect. You know, any
organization, any enterprise, I mean, everybody talks about
employee engagement, you cannot have a service organization if
you are going to treat the workforce the way, you know, we are
treated at the Board of Veterans' Appeals.
Mr. Luttrell. Thank you, sir.
Mr. Pappas, you are recognized for 5 minutes, sir.
Mr. Pappas. Thank you, Mr. Chairman. Obviously at BVA, we
are grateful for the attorneys, the judges that are so
essential in that system to ensure that it operates
efficiently, but also, most importantly, effectively and
accurately for the veterans that are, you know, working toward
achieving what they deserve.
As such, issues pertaining to training, I think, are
central, and several of you have mentioned that. Mr. Massey,
you were talking earlier about the need for training the way
AFGE has, I guess, put together a training program in absence
of something that you thought would be more effective coming
from the Board. Can you discuss a little bit about what that
AFGE training program looks like and what recommendations you
would have for a more permanent solution?
Mr. Massey. Yes. Management identified, 1 year, 40
attorneys who were struggling and failing, and they were
supposed to provide the training and assistance under our
Collective Bargaining Agreement. One of our stewards, Dr.
Benton Komins, put together a group of three other union
stewards, and he worked with these people every week on
efficiency training, on understanding the law. Dr. Komins has
continued doing this by himself. He has recruited other
attorneys to help and it is kind of an informal training
program.
I have urged Board leadership to have a similar group where
you take five or six attorneys off production, have a group
where they can help anybody out. It can be anonymous. The
problem is that the Board is pennywise and a pound foolish.
They do not want to take three, four, or five attorneys off
production to do this. This is an investment.
The 7 percent attrition rate, that is not accurate. We have
hired probably 4-or 500 brand new attorneys since 2017. They
are on a 2-year probationary period. They are not considered
employees. They are considered applicants. Out of those 4-or
500 people, we have probably lost well over 50 percent. The
attrition rate, their training has been--the attorneys doing
the training are very committed. We have a very flawed system,
and I think we need management to address it.
Mr. Pappas. Well, I agree that the training issues
pertaining to morale and retention are just as important as
some of the technical tweaks that we have been exploring this
morning.
Can you talk a little bit more about the quotas and
performance metrics that have been an issue and how these
changing standards affected the well-being of attorneys? In
your opinion, what reasonable workload would balance
productivity with maintaining high-quality decision-making for
veterans?
Mr. Massey. Well, right now we have an annual quota of 156
decisions or 491 issues. We believe it should be lower, around
125, 130. We know that you cannot dictate a quota for the Board
of Veterans' Appeals. However, Congress has--what is a
requirement is that each decision be done de novo review,
meaning looking at the whole record fresh and reviewing it.
That is actually impossible with this quota.
Everything is online, but we used to have paper files and
some of these came in boxes. It would be like, here is a box of
medical records. You need to read this. You need to write a
decision. We need three of these a week.
It is very demoralizing because the attorneys know that
they are required to do de novo review. You cannot do that in
this system, and people struggle. It is almost as though there
is not a thought from management about what the finished
product is. Everything is a number.
I think it needs to be said. This management team, there is
about seven senior executives running the Board of Veterans'
Appeals, they are all new except for one. They have never
written a decision. They have never signed a decision. I think
they are struggling because I do not think they know what they
are doing.
Mr. Pappas. Thanks for those comments.
Ms. Boyd Rauber, if I could turn to you. You mentioned a
comment in your testimony that we heard during the first panel
about the supposed way that accredited attorneys drag out the
appeals process as a way to drive up fees. Is there a moral
hazard in terms of the work that gets done in practice for
these accredited attorneys?
Ms. Rauber. Well, I am really glad, I hope I will get the
chance to put that urban legend to rest here today once and for
all. Attorneys and accredited agents do not drag out cases. VA
rules and regulations are very clear. There are standards of
conduct that require them both to work diligently and promptly
on their cases. Affirmatively, if you are dragging out any case
you are prohibited from doing that, that would not only get you
in trouble with VA accreditation, it would also get you in
trouble with your State bar.
Veterans talk to each other. VA practitioners talk to each
other. It would be a terrible business model for you to be
doing that.
I would actually argue that accredited attorneys and
agents, and as well as VSOs with us today, are the people who
are actually going to VA advocating for those cases to be done
faster, going to the Court, filing writs, filing motions to
advance on the docket. They are working diligently every day to
get these cases resolved.
Mr. Pappas. Thank you. I yield back.
Mr. Luttrell. Thank you. Mr. Self, you are recognized for 5
minutes, sir.
Mr. Self. Thank you, Mr. Chairman. I have heard one of
you--and I apologize for stepping out, but the Red Cross is
having members write letters to our overseas servicemembers.
Having received many times those, I know how important it is,
so I missed some of your testimony. I do want to ask, I did
hear about judges that have no knowledge, no experience. Please
give me examples of how that harms veterans.
I believe that was you, Mr. Stoltz. No? Mr. Massey?
Mr. Massey. I believe it was me, yes.
Mr. Self. Okay. Mr. Massey.
Mr. Massey. The story I just related, an attorney called
me, he wanted to be moved from the current judge he works for,
and I asked him why. He said, this guy is new. We are clashing.
He is doing things incorrectly. He wants me to remand things or
deny claims, and I think they should be granted. It is a very
difficult job. There was a 7-year requirement every time it was
posted on USAJobs until 2019, and there was a reason for that.
I worked with a veterans law judge who is now retired, John
Ormond. He worked for the Internal Revenue Service (IRS) for a
long time, and he said that veterans law is far more
complicated than the tax code, and we know how complicated the
tax code can be.
Part of the job of a veterans law judge is to train and
mentor attorneys. How do you do that? I mean, I started this
job in 1997, and I always knew if I had a decision I had to
write, if I had a question, I would go to the judge. I was
going to decide the decision and say, hey, what do you think
about this or what do you think about that? I always felt
confident they would give me correct answers. I do not know how
attorneys are doing that these days, writing for inexperienced
veterans law judges.
Mr. Self. Give me examples of how they are harmed. Is it
just the delay? How are they harmed?
Mr. Massey. I do not think they know how to adjudicate the
appeals properly. We get stories of attorneys that they believe
it should be done a certain way. The inexperienced veteran--I
mean, this could be an attorney with 25 years of experience
that is an expert in veterans law, and there could be somebody
brand new with 6 months, just had no prior experience, and the
veterans law judge is going to tell this very experienced
person how to adjudicate a claim. If the attorney knows that it
is incorrect and maybe the claim should be granted, maybe it
should not be remanded, that person has to do what the judge
says.
Mr. Self. Well, what is the recourse? Do you have a
whistleblower option? What is the recourse, because there must
be a recourse for someone whose superior is not trained well,
whatever. What is the recourse?
Mr. Massey. There really is not a recourse. I mean, we do
what the judge says. I have been in that situation. I have kind
of fought back a little bit, and it usually does not work out
so well. That is why----
Mr. Self. Does anyone else know of a recourse, any of our
other panel members?
Mr. Massey. As a solution, we could have it legislatively
put in there. This was a policy, the 7-year requirement. If
that could be in legislation, I think that would be very
beneficial to veterans.
Mr. Self. I see Mr. Arnold behind you. I would like to
follow up on the recourse, Mr. Arnold. I think that is an
important question. If this system is as broken as we have been
hearing this morning, what is the recourse for subordinates in
this situation?
I would also like to follow up on the fact that if the
veterans law is more complex than the tax code, that is
something that ought to raise everyone's eyebrow if that is, in
fact, true. If that is it, we have got a bigger problem than
what we are discussing here this morning.
With that, Mr. Chairman, I yield back.
Mr. Luttrell. Thank you, Mr. Self.
Ms. Ramirez, you are recognized for 5 minutes.
Ms. Ramirez. Thank you again, Mr. Chairman. I want to get
into the questions, and perhaps some of this is also follow up
from my colleagues.
Mr. Massey, in your testimony, you discussed a lack of
training. I think this also goes back to a little bit of what
you just mentioned a moment ago. In the panel before, I asked
about training both for new Board attorneys as well as
continued training for those that have already been there.
I want to ask you a little bit more about the initiatives
to train employees. Can you elaborate a little bit more about
the specifics that you want to see in training? What are the
ways that you want it to be improved? I want to get that on the
record.
Mr. Massey. Are you talking about new attorneys being hired
or ongoing training?
Ms. Ramirez. I think both.
Mr. Massey. Okay. I do have some ideas.
The new attorneys, they have a 6-month program. It is the
Professional Development Division. The people running that very
good, very qualified. They do not have a productivity standard
during those first 6 months. They are just being trained.
Now, right after that 6 months, they are given the same
productivity standard as everybody else, the same quota. I do
not think that is a very wise decision. I know that one of my
colleagues worked for Social Security. They did not have the
same quota the first year that everybody else had.
Here is another thing, this obsession with numbers and not
looking at, you know--there was one--one of our members, she--
you know, it was a 24-week training program. She took 10 weeks
off for maternity leave during that 24-week period. You know,
she missed a good portion of the training. Instead of giving
her the 10 weeks of additional training, when the 6 months was
over for her class, they said, no, you are going on
productivity, you are on production.
Another person who had quit recently or a year ago, she did
not have a computer or something for a good portion, like the
first month. Instead of giving her that time back, they said,
sorry, you can catch up with everybody else.
Nobody really looks at these people like they are people.
Everybody is a widget. Veterans seem like widgets in some
respects; the employees do.
I do know that I have been at the Board for a long time.
The people there are very dedicated, very committed. When I
wrote--you know, writing decisions for me was--I really enjoyed
it. You get a sense of satisfaction, especially when you grant
somebody 100 percent disability benefits. You know it is going
to change their life.
I think instead of just the number 103,000 this year and
111,000 next year, what is the product we are putting out
there? I think that needs to be a focus.
Ms. Ramirez. Yes. No, thank you for that, Mr. Massey. I
appreciate it.
I want to shift gears a bit now, and I want to talk about
the AMA appeals and how they are being handled. My questions
are directed to Mr. Liermann.
During your oral statement, you mentioned increase in
remands for legacy and Appeals Modernization Act appeals. What
do you feel is the primary reason for the increase in both
types of appeals and what do you think can be done to correct
the problem?
Mr. Liermann. Thank you. I think it really comes down to is
training and understanding on development errors. As was
already said, when they are being--cases are being remanded
back for an exam or clarification of a medical opinion or one
that was not requested, if there is adequate training to
understand and explain that remand and that reason to the VBA
employee, then we have that same training as well with the
judges. We are going to help eliminate the most common reason
these cases are being remanded.
I have been doing this for about 25 years with DAV, and I
was at our office in Nashville, Tennessee, for a few years.
Back when the Board of Veterans' Appeals was conducting Travel
Board hearings, several of the judges would offer training to
that appeals coach when they were there conducting hearings for
that week. They would bring in that entire appeals team. They
would bring in some of the attorneys that even invite us VSOs.
They would sit down and talk about some of the common mistakes
and errors that are found. I think that type of training to
that level involving everybody is what is really needed to help
avert these problems going forward.
Ms. Ramirez. Got it.
I just have one last question before my time is up. In your
written statement, you noted that the Board conducted 11,000
fewer hearings in Fiscal Year 2023 than they did in Fiscal Year
2022. Do you have an idea why this happened?
Mr. Liermann. Not really, to be quite honest. I mean, I do
not really understand how you go from conducting 11,000 less
hearings. There are 72,000 hearings pending right now, and if
we continue to do less, we are not going to get to the end
result that veterans are waiting for.
Ms. Ramirez. Thank you for that.
Chairman, I yield back.
Mr. Luttrell. Thank you, ma'am.
Mr. McGarvey, sir, you are recognized for 5 minutes.
Mr. McGarvey. Thank you, Mr. Chairman. Thank you all very
much for being here.
I wanted to start off by highlighting a quote from your
testimony, Mr. Massey. You wrote that, ``AFGE members and Board
attorneys are not afraid of the hard work necessary to satisfy
the mission of serving veterans.'' Thank you. Thank you for
that.
We know what an incredibly valuable resource we have, both
in our veterans and in the people who are working to serve them
and get them the care they need. What you see from this
committee, if you sense any frustration at all, it is that we
want to make sure they get the care they need.
I was going to ask a little bit about the training that Ms.
Ramirez discussed, and so since she kind of got a good answer
from you guys on that, I want to shift a little bit more to
what you were just talking about and follow up on her last
questions.
Mr. Massey, you mentioned a legislative fix earlier that
you would like us to look at. Now we are hearing there are
72,000 claims pending, 11,000 fewer claims adjudicated Fiscal
Year 2023 than in Fiscal Year 2022. What can we do, Mr. Massey?
How can we help you guys? If you could snap your fingers and
ask for something from us, what can we do to help our veterans
get these claims adjudicated, get the care they need, they have
earned, they deserve?
Mr. Massey. That is a tough question to answer. The comment
was made if this is more complicated than the tax code, we got
some serious problems, I mean, the whole system needs to be
redesigned. For purposes of this hearing, I think the Board of
Veterans' Appeals, I think it needs to focus on training.
I think they need to--I mean, when they downgraded the
position from the GS-14 to the 13, it did not impact any of our
members. This was new people being hired, but everybody was
upset. I was wondering why from a union advocate standpoint. It
was kind of a message to them that they are not valued, and it
does not seem like they are being valued. You cannot have any
kind of customer service.
The first thing, if you treat the employees well, they are
going to treat their customers well, their clients. The Board
attorneys, they do a phenomenal job, but they need more time to
do the job. They need a quota that is lower.
By the way, this whole tension between quality and
quantity, it is been going on since I started 25 years ago.
This is not new. It is a very difficult job. I do not envy the
managers in charge of the Board of Veterans' Appeals. It is
very tough.
I think compensation, definitely, if you create 100-to 200
GS-15 positions for people that want to stay--I know a guy, he
does not mind me using his name, Thomas Douglas left. He was
one of the Board's most valuable attorneys as far as quality
and productivity. He left after 26 years. He did not stay his
30 years. I asked him why. He said, I am never going to be a
veterans law judge, and look at all these people. I am going to
go train somebody? You know, we need to take a look at how we
are running the Board of Veterans Appeals.
We did a survey; I think you guys got it. Ten staffers came
to the Board about 2 months ago. In June, I asked a question in
a survey, what would you tell a member of the House Committee
on Veterans' Affairs about the Board of Veterans' Appeals? Not
knowing we were going to have this hearing. I gave that to the
staffers. There is a common theme if you read that, and I
encourage everybody to read or to have your staffers read it.
It is all about productivity. They do not care about us. They
do not care about the quality of what we are doing. That was
the common theme.
Some positive notes with the surveys we have done, they do
like their immediate supervisors, the veterans law judges. They
like their senior counsel, the supervisors. Their direct
supervisors they view very favorably. There seems to be a
disconnect between upper management and what everybody is
doing.
Mr. McGarvey. You hit on this briefly. We do have an
incredible workforce, an amazing workforce. People coming in
day-in, day-out, working really hard to ensure that our vets
get the decisions they deserve. We want to make sure you guys
have the tools and the support you all need as well.
Throughout your testimony, you did highlight several ways
the VA could improve recruitment and retention, including
metric reforms, promotion opportunities, training, compensation
that you just hit on. I just want to elevate those ideas, and I
do hope that BVA leadership and this committee can take action
on some of these items.
Just, you know, appreciate the work you all do. I do know
that there are big positives and highlights of working at the
BVA, and we are here to support. Thank you.
Mr. Luttrell. Thank you. Thank you, sir.
Thank you all to our witnesses for testifying before us
today about the important issues of ensuring that veterans
receive high quality decisions on their appeals.
With that, I will yield to the ranking member for his
closing remarks.
Mr. Pappas. Well, thank you very much to everyone on our
second panel for your discussion here today and what you all do
and represent. I did hear during the first panel that there is
going to be an AMA Summit coming up in early 2024, and I do
hope that your organizations will somehow be involved in that
and that an invitation is coming your way. We will see. Thank
you to everyone who participated in today's event.
This is, obviously, a very crucial conversation about the
Board of Veterans' Appeals, and it is evident that BVA has got
some work to do to address these issues with the appeals
process, including retention and hiring concerns, training
deficiencies, lapses in quality assurance, and the impact of
increased workloads on morale.
Let us not forget that behind every claim is a veteran.
Behind every claim decision is an employee tasked with writing
it. As such, a singular focus on increasing productivity will
only lead to greater employee burnout, attrition, and
ultimately worse outcomes for the veterans that we all want to
serve better.
I know that with the implementation of PACT, VA is
delivering more benefits to more veterans than ever before. The
Board must continue to focus on workforce development and
quality assurance as we find ways to decrease the appeals
backlog.
Further, the Board should continue to aggressively hire new
employees to balance out the workload. I would say also that
VBA must continue to address, at the same time, the upstream
issues with claim accuracy that lead to additional downstream
work by the Board.
Ensuring veterans receive a decision on their appeals
promptly, along with an accurate and comprehensive decision,
remains a top priority. It is imperative that these individuals
obtain the benefits rightly due to them, and we should all be
committed to nothing less and I know that we are.
I anticipate a continued collaboration, Mr. Chairman, with
you, with our VSOs, with all those who have been a part of this
hearing today. I yield back and thank everyone for a productive
session.
Mr. Luttrell. Thank you, Mr. Pappas.
Mr. Massey, my colleague, Mr. McGarvey, asked one of the
most profound questions, and your response was, that is an
extremely difficult question, but those are the answers that we
need. We need to know exactly the answers to those hard
questions so we can take that information directly to the VA
and make movement on it.
You heard me say earlier, having these hearings where we
are engaging back and forth, but we have no profound this is
the way forward. This is from step off to mission success is
what we need to implement. We have to refine that in a way
where it is just not Sunday lunch and you are emptying the
refrigerator. Okay? I do not have any other better way to put
it.
Again, thank you so much for coming today.
I ask unanimous consent that all members have 5 legislative
days to revise and extend their remarks and include extraneous
material. Without objections, so ordered.
This hearing is adjourned.
[Whereupon, at 12:53 p.m., the subcommittee was adjourned.]
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A P P E N D I X
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Prepared Statements of Witnesses
----------
Prepared Statement of Kenneth Arnold
Good afternoon, Chairman Luttrell, Ranking Member Pappas and
Members of the Subcommittee. I appreciate the invitation to appear
before you today on behalf of the Department of Veterans Affairs (VA)
to discuss how VA strives to achieve final resolution of Veteran
appeals regarding claims and eligibility for service-connected
disability compensation ratings and benefits, VA health care access or
services and VA cemetery or burial benefits. Accompanying me today is
Timothy Sirhal, Executive Director, Office of Administrative Review,
Veterans Benefits Administration (VBA) and Mary Flynn from the Office
of General Counsel (OGC).
We have made incredible strides within VA to execute the Veterans
Appeals Improvement and Modernization Act of 2017 (AMA), which was
implemented on February 19, 2019. Increased choice for Veterans and
setting reasonable time constraints on adding additional evidence under
each choice during the appeals process under AMA has led to much faster
resolution of appeals, with higher grant rates and significantly lower
remand rates between the Board and VBA.
Providing Veterans with the opportunity to ``appeal first'' to VBA
after an initial denial of claims under AMA has been a game-changer,
resulting in ever-increasing numbers of Veterans choosing that option
each year to have their denials turned into grants without the need to
seek an appeal from the Board of Veterans' Appeals (Board). Under the
AMA, Veterans can choose to have initial claims decisions reviewed
within VBA by a more experienced claims adjudicator through the higher-
level review process (i.e., a review of the same evidence presented to
the prior decision-maker) or Veterans can file a supplemental claim
with VBA if there is new and relevant evidence to support the claim.
These new choices available to Veterans to ``appeal first'' to VBA has
reduced the number of appeals to the Board. In fiscal year (FY) 2021,
only 17 percent of Veterans who received an initial ``no'' from VBA
under AMA chose to challenge the decision by appealing to the Board. In
FY 2023, merely 2 years later, that rate dropped to single digits--just
below 10 percent.
Even though we know we still have a long way to go to achieve the
full impact of those historic changes in law, and improvements can be
made, I am pleased to report to you that the most notable improvement
in AMA appeals processing is the significant reduction in the time it
takes to fully resolve Veteran appeals, both at VBA and at the Board.
Since implementation of the AMA, VBA has consistently met its
timeliness (125-day average days to complete) and quality (93 percent)
goals under the AMA decision review program. In FY 2023, under the AMA
system, VBA completed over 429,000 supplemental claims in an average of
122 days and decided over 140,000 higher-level reviews in an average of
77 days.
Last year, the Board decided over 30,000 AMA appeals. On average,
AMA appeals at the Board are fully resolved (meaning no remaining
remands) approximately 4 years faster than it takes to fully resolve
Legacy system appeals, i.e., those appeals remaining in the appellate
system that the AMA replaced. At the same time, those faster AMA
decisions reflect 20 percent fewer remanded cases and 10 percent higher
grant rates when compared to the Legacy system remand and grant rates.
These are consistent trends over the past 4 years. In FY 2023 alone,
VBA implemented over 10,000 full grants of benefits awarded by the
Board...averaging less than 30 days to process those granted benefits.
In short, Veterans are using the different options available to them
under the AMA and this increased Veteran choice is also enabling
Veterans to get full and final answers from VA much faster than under
the Legacy system of appeals.
Honestly, the older Legacy system of appeals has been holding us
back from achieving even greater success under AMA. Veterans Service
Organizations (VSO) and other accredited representatives have expressed
frustration on behalf of the Veterans they represent, noting that the
promises of faster resolution under AMA is not happening with so many
Legacy system appeals still pending. When Congress passed AMA in 2017,
a widely held assumption was VA could successfully operate both systems
at the same time, even though the House Report noted it would take an
average of 10 years for a final appeals decision under the Legacy
system. It was expected that the older Legacy appeals system cases
would decrease to the point that the system would effectively sunset
and almost all appeals would be processed more swiftly and effectively
under the newer AMA system.
VA still has nearly 60,000 pending Legacy system appeal cases, and
over 20 percent of those Legacy system appeals have not had an initial
review or adjudication by a Board judge because so many remanded cases
keep returning to the head of the line, essentially cutting in front of
those Veterans. While we have made great strides reducing the pending
Legacy system appeals from nearly 475,000 pending cases in 2017 to the
current 60,000 pending cases, we are seeing a very high percentage of
these remaining appeals being remanded over and over. When we look at
those pending Legacy system appeals in the Board inventory on any given
month, we have seen half of them previously, as VBA is recertifying
Legacy remands back to the Board upon completing the directed case
development. In fact, 15 percent of the Board's pending Legacy appeals
are being adjudicated for the 5th time or more. The root cause is what
Congress previously found in 2017 - the Legacy system allowed for and
incentivized ``repeated revisions'' to add new evidence in the claims
file during the appeals process that necessitated successive remands.
Reports accompanying the 2017 AMA legislation estimated the average
time to fully resolve Legacy system appeals though both VBA and the
Board to be 5 years, not counting additional time for Court-appeal
cases. Legacy system appeals are now taking approximately 6 years for
final resolution by the Board, and that does not count the time the
case was at VBA or the fact that over 60 percent of Legacy system
adjudications by the Board continue to be remanded. It also does not
account for the extra time to re-adjudicate the 6,800-7,700 appeals
remanded by the Court every year. Projections show that by the end of
FY 2025, the remaining Legacy appeals inventory will be approximately
10,000 cases in the Department overall, split evenly between the Board
and VBA.
As noted earlier, the rate of cases remanded from the Board has
been substantially lower under the new AMA appeals system compared to
the Legacy appeals system. To build on this progress, partnership
between VBA and the Board offers an opportunity to enhance the quality
and effectiveness of VBA training programs for the dedicated VBA claims
processors who serve the Nation's Veterans. Ultimately, VBA seeks to
ensure that Veterans and claimants receive the benefits they have
earned at the earliest point possible during the claims process and to
minimize avoidable delays--while also guarding against the
overdevelopment of cases. Remand data from the Board are used to both
validate VBA's current areas of training focus and potentially present
new opportunities to refine training as data analytics capabilities in
this area evolve.
While full resolution of the vast majority of the 30,000 AMA
appeals decided by the Board last year took an average of less than 2
years, that is still too long for Veterans to wait. A major cause is
the fact that the Legacy system cases consistently move to the head of
the line because they have been waiting longer, and the number of those
cases pending is far higher than anyone anticipated when AMA was
passed. Those remaining Legacy system appeals are being repeatedly
remanded without a final resolution and closure for Veterans because
the underlying system still suffers the same flaws that led to passage
of the AMA over 6years ago. We must do better. The Courts, VSOs,
private attorneys and other accredited representatives, VBA, the Office
of General Counsel and the Board must come together, again, to solve
this challenge together through a holistic review of the Veteran's
disability system.
To know there are still over 200,000 pending appeals, with most
filed under the newer AMA system that promised faster resolutions, this
is difficult to accept as a Veteran myself. We have been making
aggressive changes to address that challenge, while increasing our
staffing so as to not burn out those we rely on to serve Veterans at
the Board.
First, thanks to continued support from Congress, we added
additional budgetary resources that allowed us to hire and retain more
talent. The Board hired 50 new Veterans Law Judges (VLJ) during the
past 2 years. This is the largest and most diverse increase in judges
in the Board's 90-year history. However, because the VLJs can only be
as productive as the attorneys who prepare draft decisions, the Board
focused on attorney hiring last year, which resulted in a 16 percent
increase in FY 2023, with the addition of over 200 new attorneys and
law clerks. The Board is currently prioritizing two rounds of attorney
hiring during FY 2024 (fall 2023 and Spring 2024) to fully staff the
current VLJ teams and maximize the number of decisions that can be
issued. Board culture for how we operate also has changed, and we are
retaining talent as a result. Attorney attrition is down from 13.9
percent in FY 2018 to 7.4 percent in FY 2023.
Second, the Board is adjudicating exponentially more AMA appeals,
even though older Legacy system appeals continued to dominate the
Board's docket in recent years since the passage of AMA. The
distribution of appeals cases in October 2022 at the start of FY 2023
was 25 percent AMA to 75 percent Legacy. By the end of the FY, 42
percent of our decision output was under the AMA. This year, we
anticipate more than 50 percent of all output will be under the AMA
rather than the Legacy system.
There are bright spots and cause for hope that AMA will live up to
original expectations of faster and full resolution for awaiting
Veterans. They deserve final answers, to include rational explanations
for any claim or appeal that cannot be granted for some reason. This
past year, the Board set a 90-year record, adjudicating 103,245
appeals. For the first time in 4 years, we ended the FY with a shorter
line of pending appeals than where we started at the beginning of the
fiscal year. The number of pending hearings at the end of FY 2023 was
72,465, and this is the second year in a row the Board has reduced the
hearing inventory. The number of pending Legacy hearings was reduced by
over 85 percent, down to just 1,054 remaining at the end of FY 2023.
The increased partnership in sharing remand information is a
testament to the joint commitment of both VBA and the Board to
continuously improve the services and support we provide to Veterans.
VBA acknowledges that there are opportunities to improve data
collection in this area and is collaborating with the Board to obtain
more granular information that will better inform training needs and
opportunities. Specifically, remand data from the Board validate VBA's
significant investment in training around medical exam requests and
medical opinions, and its robust catalogue of courses for claims
processors. Following passage of the Sergeant First Class Heath
Robinson Honoring our Promise to Address Comprehensive Toxics Act of
2022, VBA created additional courses that include information specific
to exams and medical opinions related to that legislation.
In addition, VBA and the Board collaboratively exchange information
through an agreed upon Board Feedback Loop process, identifying trends
for AMA and Legacy Board remands. This feedback system was established
to 1) ensure VBA is appropriately addressing remands issued by VLJs and
2) confirm that Board remand return reasons under the AMA system relate
only to duty to assist errors that occurred prior to an initial
decision on a claim, as prescribed by the AMA.
Further, VBA is actively exploring innovative training delivery
methods. VBA is considering options such as microlessons, videos and
other modernized training techniques to ensure that claims processors
are well-equipped to address the challenges presented by cases that
often involve complex legal and medical questions.
In FY 2023, VBA made over 36,000 Legacy appeals decisions and
implemented over 12,500 Legacy full grants of benefits received from
the Board. Further, VBA remains on pace to have fewer than 5,000
remaining Legacy appeals by the end of FY 2025. Sunsetting the Legacy
appeals system will allow VBA to focus additional resources on
improving the AMA decision review process.
Our mission success is ultimately defined by what Veterans
experience during the lifecycle of their cases on appeal, from the
initial filing all the way until they receive a final written decision
from a Board VLJ. Since 1933, the Board has been charged to apply the
``benefit of the doubt'' and ``duty to assist'' doctrines that are now
enshrined by Congress in statute. In large part, it is those two
factors that enable the Board to say ``yes'' and grant at least some
relief in roughly a third of its decisions even after VA has previously
said ``no,'' sometimes on multiple occasions. Survey results show that
Veterans leave the Board with higher trust levels than they had when
they first filed their appeals--10-11 percent higher. Data show a
significant percentage of Veterans report ``trust'' even after getting
no relief from the Board. Over 50 percent of Veterans report they trust
the Board after getting their final decisions, which is remarkable when
the Board is only able to grant relief on about 25 percent of the
issues appealed to the Board.
The new AMA system that was designed and developed through the full
partnership between VA, the VSOs, private bar representatives and
Congressional staff is proving that comprehensive, Veteran-centric
solutions are possible when people with different perspectives work
together toward a common goal. We should maintain focus on our shared
goal to reduce the overall time Veterans spend patiently waiting for
final VA resolution of their claims and appeals. That is why VA is
planning to host an AMA Summit with all stakeholders in early 2024.
VA understands that the claims appeals process can be long and
frustrating for many Veterans, but I hope that our answers to your
questions today will help explain why it takes so long to process your
appeal and efforts VA has taken to improve the process. We must
recognize that processing these appeals will take time because each and
every case represents a Veteran with a unique set of facts and
circumstances that must be carefully evaluated and appropriately
resolved according to governing laws and regulations.
Conclusion
VA shares Congress' goal of continuous improvements to both our
program and our customer service to Veterans, their families,
caregivers and survivors. We want to express our appreciation for your
continued support and look forward to continued collaboration. Chairman
Luttrell and Ranking Member Pappas, this concludes my testimony. My
colleagues and I are happy to respond to any questions you or the
Subcommittee may have.
______
Prepared Statement of Elizabeth Curda
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Prepared Statement of Shane Liermann
Chairman Luttrell, Ranking Member Pappas and Members of the
Subcommittee:
Thank you for inviting DAV (Disabled American Veterans) to testify
at today's oversight hearing titled, ``Examining the VA Appeals
Process: Ensuring High Quality Decision-Making for Veterans' Claims on
Appeal.''
DAV is a congressionally chartered, VA-accredited, non-profit
veterans service organization (VSO) comprised of more than one million
wartime service-disabled veterans that is dedicated to a single
purpose: empowering veterans to lead high-quality lives with respect
and dignity. To fulfill our service mission, DAV directly employs a
corps of benefits advisors, national service officers (NSOs), all of
whom are themselves wartime service-connected disabled veterans, at
every Department of Veterans Affairs (VA) regional office (VARO) as
well as other VA facilities throughout the Nation, including the Board
of Veterans' Appeals (Board).
More than 12.1 million claims for benefits have been submitted by
DAV since the organization was chartered by Congress in 1932. In VA
Fiscal Year (FY) 2022, DAV represented veterans and families in more
than 13,500 decided appeals by the Board, which represented nearly 20
percent of all Board decisions, the largest amount of any accredited
VSO.
Based on our experience, our testimony will focus on the quality of
appeals decisions by examining the Board and its remand decisions, the
performance of the Board in FY 2022, the Court of Appeals for Veterans
Claims (Court) and its FY 2022 report, and our concerns and
recommendations.
THE BOARD OF VETERANS' APPEALS
Established in 1933, the Board is an agency within the VA, which is
responsible for making final decisions on behalf of the Secretary
regarding appeals for veterans' benefits and services from all three
administrations, the Veterans Benefits Administration (VBA), the
Veterans Health Administration (VHA), and the National Cemetery
Administration (NCA), as well as the Office of General Counsel (OGC)
that are presented to the Board for appellate review.
The Board consists of a Chairman, Vice Chairman, Deputy Vice
Chairman, members, and professional, administrative, clerical
personnel. The principle functions of the Board of Veterans' Appeals
are:
Make determinations of appellate jurisdiction.
Consider all applications of appeal properly before it.
Conduct hearings on appeal.
Evaluate the evidence of record.
Enter decisions in writing on the questions presented on
appeal.
All questions of law and fact necessary to a decision under a law
that affects the provision of benefits to veterans or their dependents
or survivors are subject to review on appeal by the Board.
Additionally, the Board shall decide all questions pertaining to its
jurisdictional authority to review a particular case.
The Appeals Improvement and Modernization Act
Starting in 2015, DAV collaborated with the VBA, the Board, and
other stakeholders to improve and streamline the appeals process. The
Appeals Improvement and Modernization Act (AMA), a veteran-centric
appeals process, was the result of those combined efforts and was
implemented in February 2019.
In the legacy appeals process, appeals could languish for several
years within each VARO before being certified to the Board and then,
potentially spend several more years there before a final decision.
AMA created three options, referred to as lanes, for claimants
dissatisfied with the initial decisions on their claim. Claimants may
seek a higher-level review of the decision based on the same evidence
presented to the initial claims processors; file a supplemental claim
that includes the opportunity to submit additional evidence; or appeal
directly to the Board.
Claimants appealing to the Board may elect one of three appeal
options: 1) a direct review of the evidence that the Agency of Original
Jurisdiction (AOJ) considered; 2) an opportunity to submit additional
evidence without a hearing; or 3) a hearing before a veterans' law
judge (VLJ), which includes the opportunity to submit additional
evidence.
The Board noted in its final FY 2023 quarterly report, published on
its website, that 103,245 appeals were decided while receiving over
101,000 new appeals. There were 24,145 legacy appeals pending and over
180,000 pending AMA cases totaling 208,155 appeals pending on October
1, 2023. Of the appeals pending, it noted that AMA appeals on a direct
route were pending an average of 577 days, AMA appeals with evidence
were pending an average of 682 days and AMA appeals requesting a
hearing were pending an average of 700 days.
Additionally, in FY 2023, the Board conducted 19,434 hearings,
which is approximately 11,000 less than those held in FY 2022. At the
end of the FY 2023, there were 1,054 legacy hearings and 71,411 AMA
hearings pending for a total of 72,465 appeals awaiting hearings.
Legacy Remand Decisions
In the legacy appeals system, when a veteran files a VA Form 9 in
response to a Statement of the Case issued by the VARO, their claim
will go to the Board to be reviewed by a VLJ. The Board will then look
through the veteran's file, consider all of the evidence submitted, and
issue a decision. There are several situations in which the Board will
decide to remand a claim, including:
If the Board believes it needs additional information or
evidence in order to come to a final determination;
If the Board does not believe that the VARO evaluated the
veteran's claim appropriately; and
If additional evidence was submitted that the VARO did
not review.
Importantly, in the legacy appeals system, the Board is obligated
to remand for duty to assist errors that occurred at any time while the
veteran's appeal was pending. If a veteran's case is remanded, the file
will go back to the VARO, the agency of original jurisdiction (AOJ). In
each remand, the Board will lay out specific remand instructions to
which the VARO must adhere. For example, the Board can instruct the
VARO to obtain a compensation and pension examination, medical records,
service records, or other types of additional evidence. Once the VARO
completes the Board's remand instructions, it will issue a decision on
the veteran's claim. It can either issue a rating decision if it
determines the veteran is entitled to the benefits sought on appeal, or
a Supplemental Statement of the Case (SSOC), if it is unable to grant
benefits. The issuance of an SSOC will automatically send the veteran's
claim back to the Board so a final decision can be made.
In FY 2020 and FY 2021, the legacy remand rate was 40 percent. In
FY 2022, the legacy remand rate was 42 percent and the Board stated in
the report, that nearly 60 percent of the returned legacy remands
pending at the Board have been remanded by the Board to the agency of
original jurisdiction two or more times. In the last FY 2023 quarterly
report, the legacy remand rate was 44 percent, which is an increase
over the past three years.
AMA Remand Decisions
Under AMA, the Board is no longer obligated to remand for duty to
assist errors. However, if the duty to assist error is pre-decisional,
meaning it occurred prior to the VARO adjudication on appeal, the Board
can remand the appeal back to the VARO with instructions to correct the
error. For example, the Board may request the VARO to obtain an
advisory medical opinion if it should have done so prior to the initial
decision.
Additionally, under AMA, remanded appeals are not automatically
returned to the Board following development and correction. Instead,
the AOJ will readjudicate the appeal by re-reviewing the record,
conducting the development necessary to correct the pre-decisional duty
to assist error, and issue a new rating decision. A veteran's appeal
will only return to the Board if the claimant files another Notice of
Disagreement within one year of the VARO's readjudication.
If there is no pre-decisional duty to assist error, the Board is
instructed to grant or deny the appeal for benefits based on the
evidence considered by the VARO, and any evidence submitted during or
within 90 days after the NOD or Board hearing.
In FY 2020 and FY 2021 the AMA remand rate was essentially 28
percent. In FY 2022, the AMA remand rate was 29 percent. In the FY 2023
last quarterly report, the AMA remand rate increased to 32 percent.
CONCERNS AND RECOMMENDATIONS
We are greatly concerned about the increased rates of legacy remand
rates. In the last FY 2023 quarterly report, 70,584 legacy appeals were
decided in FY 2023, with a grant rate of 34 percent, a remand rate of
44 percent and a denial rate of 17 percent. Appellants have the ability
to submit new evidence throughout a legacy appeal. While we acknowledge
this could be a factor for the increase in the remand rate, we ask why
only 17 percent of the legacy appeals were denied. There is clearly
some issue regarding the quality of the these AOJ decisions, which we
believe can be traced to training issues.
When the Board previously conducted hearings at the VAROs, often
called travel board hearings, many of the VLJs traveling to the VAROs
would conduct training with the local appeals teams. While these were
conducted with the permission of the VARO Director and if the VLJs had
time, DAV even participated in these training sessions. It is evident
by the 17 percent denial rate at the Board, that training is
desperately needed in VBA and at the VARO level.
One of the original intents of AMA was to reduce the amount of
remands by the Board of Veterans' Appeals; however, the increased rate
of AMA remands establishes that VBA claims personnel are committing a
high volume of duty to assist errors pre-decision. We believe this high
percentage of errors is, in part, due to training issues.
We believe these high duty to assist errors are verified by the
June 2021 Government Accountability Office (GAO) report, ``Veterans
Benefits Administration Could Enhance Management of Claims Processor
Training,'' which made ten recommendations for VBA to implement.
Additionally, the report noted, ``fully applying leading practices for
training would provide VBA greater assurance that its workforce is
sufficiently skilled to efficiently and effectively process disability
claims and provide high-quality service to veterans.'' The report
clearly identifies training issues within VBA.
Additionally, we believe VBA places an overemphasis on their own
training manuals, adjudication manuals and training memos which are not
binding on the Board. As noted in title 38, Code of Federal
Regulations, section 20.105, ``In the consideration of appeals and in
its decisions, the Board is bound by applicable statutes, regulations
of the Department of Veterans Affairs, and precedent opinions of the
General Counsel of the Department of Veterans Affairs. The Board is not
bound by Department manuals, circulars, or similar administrative
issues.''
Further, in December 2020, the Court held in Kennedy v Wilkie that
a VA Fast Letter does not constitute ``law.'' It is clear that VBA
focuses training of their claims processors to their own manuals and
not specific to statutes, regulations and precedent decisions.
In the FY 2022 report, the Board states, ``While the overwhelming
majority of remands from the Court have instructions for the Board to
provide additional ``reasons and bases'' for its denial decision, the
Board and VBA are assembling a tiger team to evaluate root causes and
ways to reduce remands from the Board to VBA. While doing this, the
Board is exploring options to enable it to better address original
Legacy system appeals still pending that have never been seen by a
Board judge because of these remands that continue to have priority.''
We recommend that the Board institute this tiger team not only to
determine the root cause of remands, which we believe is partly
development errors, but also to provide training on these specific
issues. Additionally, the training needs to impress upon VBA it needs
to focus training on the law, not internal manuals.
The Board's legacy and AMA remand decisions both increased during
FY 2022 and FY 2023, which speaks directly to the quality of the
decisions being made by AOJs and inversely speaks to the quality of
decisions made by the Board.
QUALITY OF BOARD DECISIONS
In order to effectively discuss the quality of Board decisions, we
must take a look at several factors, including the intake and docketing
of AMA appeals, the GAO testimony of July 13, 2021, the Board's FY 2022
annual report, as well as the Court and its FY 2022 annual report.
Intake and Docketing of AMA Appeals
In January 2020, the Board established the Office of the Clerk of
the Board, an internal Board resource formed to ensure the proper
docketing of AMA appeals. The Clerk's Office also works to identify and
correct AMA docketing errors, improve Board training around AMA issues
and assists VA IT professionals in refining the technological tools
used by Board staff to process AMA appeals.
Although the Clerk of the Board was created, DAV continues to
discover AMA appeals that are deemed invalid and should not have been
docketed. For example, veterans who have received a proposed reduction
from VBA are filing an appeal, VAF 10182, directly to the Board.
However, since this is a proposed action and not a final action, the
issue is not under the Board's jurisdiction and thus is an invalid
appeal. This invalid appeal may not be discovered for months or longer
while the veteran is completely unaware. In many instances, this has
negatively impacted veterans as they could not take other timely
actions.
In our July 2021 testimony to this Subcommittee, we reported that
DAV's National Appeals Office located at the Board estimated that 1 in
25 cases reviewed for an informal hearing presentation and 1 in 100
cases reviewed for a hearing were invalid appeals that should not have
been docketed.
Then in 2021, the Board learned that a number of veterans may have
had their Board Appeal forms mistakenly rejected for being untimely.
The Board sent out notifications that VA Forms 10182 submitted to the
Board between February 19, 2019, and March 23, 2021, may had been
improperly rejected as untimely. Impacted veterans were invited to
resubmit the Notice of Disagreement (NOD).
In January 2022, the Board sent out another notice that delays to
the Board's ability to mail correspondence between July 13, 2021,
through December 31, 2021, may have impacted timely submissions and
invited veterans to request that the Board consider a previous
submission that was not addressed or reconsider a prior determination
that a submission was untimely.
CONCERN AND RECOMMENDATION
It is important to note that the decisions on the timeliness of the
NOD is currently not a written decision made by a VLJ, but an intake
clerk. This means the timeliness of the NOD determination by the Board
is not appealable.
Given the problems with the intake and docketing of AMA appeals, we
recommend that a decision by a VLJ on the timeliness of the NOD be
added to the appeals process. To accomplish this goal, DAV supports
H.R. 5891, the Veteran Appeals Decision Clarity Act as it would require
a written determination on the timeliness of the NOD.
The problems identified with intaking and docketing cases, speaks
to the quality of the decisions made by the Board and a need for
improving the quality of decisions and a thorough quality assurance
program.
GAO Testimony of July 31, 2021 before the Subcommittee
The testimony specifically notes, ``Board officials recently told
us that while they have conducted some analysis to ensure that
decisions are accurate and consistent, they are developing a quality
assurance program that measures and reports the accuracy of its
decisions on AMA appeals. Developing this program, according to Board
officials, involves efforts such as determining the appropriate
criteria and statistical practices to assess decision quality,
collecting baseline data, and specifying an AMA quality goal. Board
officials told us they plan to set and use an AMA quality goal in
Fiscal Year 2022.''
Additionally, GAO noted, ``Developing and implementing a
comprehensive quality assurance program is important as the Board
contends with its large workloads, which potentially create pressure to
sacrifice the quality of work activities to meet timeliness goals. This
scenario could result in incorrect decisions, or rework to correct
errors or issue new decisions, thus affecting timeliness from the
veteran's perspective.''
In the Board's most recent annual report, they refer to a Quality
Assurance (QA) program, the Office of Assessment and Improvement (OAI)
and the Board's independent review process. However, none of this is
well-defined or explained in any great detail.
The Board of Veterans' Appeals Annual Report Fiscal Year 2022.
The report states the Board adjudicated 95,294 decisions, which is
4,000 fewer cases than adjudicated in FY 2021. Specific to the issue of
quality, of the more than 3,400 cases sampled during FY 2022,
statistical analysis revealed a quality assurance rate of approximately
94.66 percent for legacy appeals decisions, which improved over FY 2021
from 92.06 percent. For AMA appeals decisions, the quality assurance
rate for FY 2022 was 91.91 percent compared to the FY 2021 quality
assurance rate of 87.48 percent
The Board noted in its FY 2022 report, ``The Board has been
collaborating closely with GAO to evaluate areas for continued
improvement in the Board's Quality Assurance program. This includes
evaluating potential root causes for declining, but continuing, trends
related to unnecessary or improper remands under the AMA. The Board is
monitoring the outcomes in cases appealed to CAVC and the United States
Court of Appeals for the Federal Circuit to identify trends that may
help enhance the Board's Quality Assurance program. The Board will
continue its collaboration with VA's OGC to provide targeted trainings
to VLJs based on trends seen in these court cases.''
We are encouraged by the increase in the quality assurance of the
decisions for the legacy and AMA appeals and an improved quality
assurance program. However, the Board is quick to point out that the
mere discovery of an ``error'' in a decision does not mean that the
Board's decision was ``wrong.''
In FY 2022, of the total 261 errors called, only 4 errors were
deemed clearly and unmistakably erroneous, where the decision
erroneously states the facts or the law and, but for the error, the
decision result would have been manifestly different. The report
further states there are many other quality ``error'' categories that
do not necessarily involve a procedural defect or incorrect outcome.
Additionally, they report ``approximately 7.28 percent of errors
identified in the Board's Quality Assurance process were based on a
need for the Board to fully address all raised contentions and theories
of entitlement. Again, please note that fully addressing each
contention or theory of entitlement does not necessarily result in a
different outcome.'' Through the lens of quality and accurate
decisions, we view this as a very troubling statement from the Board.
Their focus should be on the requirements of law, which requires it to
consider all theories or avenues of entitlement, because in many cases
that can result in a grant of the benefits being sought.
The report also states that, ``OAI reviews Board decisions to
ensure compliance with the duty to assist and evidentiary rules under
the AMA, even if such an ``error'' is not adverse to the appellant.''
This is a stunning statement considering the Board has vastly increased
remand decisions based on duty to assist errors as previously noted.
The FY 2022 report does show improvement in the quality of the
Board's decisions, yet the Board downplays the significance of certain
errors that are discovered in its decisions, which fall under the
jurisdiction of the Court of Veterans Appeals. Let's review the Court
and its FY 2022 Annual Report.
The Court of Appeals for Veterans Claims
Until the Court was established in 1988, veterans had no court of
law where they might appeal the decisions on veterans' benefits. A
veteran whose claim VA denied was therefore afforded no independent
review of VA decisions; that veteran was therefore denied the right to
go to court to challenge the decision of an administrative agency.
Prior to the establishment of the Court, the last line of appeal for
veterans and their families was the Board of Veterans' Appeals.
In order to obtain review by the Court of a final decision of the
Board of Veterans' Appeals, a person adversely affected by that action
must file a notice of appeal with the Court. Any such notice must be
filed within 120 days after the date of the decision.
The Court has exclusive jurisdiction to review decisions of the
Board and has the power to affirm, modify, or reverse a decision of the
Board or to remand the matter, as appropriate. The Court must confine
its review to the Board decision and may not consider any evidence
which was not of record before the Board. In other words, an appeal to
the Court cannot contain new evidence.
Court of Appeals for Veterans Claims FY 2022 Annual Report
According to its annual report, in FY 2022, the Court received
7,344 appeals along with 280 petitions and 6,530 Equal Access to
Justice Act (EAJA) applications. During FY 2022, the Court issued
15,136 decisions addressing 8,164 appeals, 260 petitions, and 6,534
EAJA applications.
The number of new cases filed at the Court in FY 2022 decreased by
8 percent. This decrease correlates to a reduction of final decisions
issued by the Board. The report states, ``In FY 2022, the Board
decreased production of final decisions from 99,721 in FY 2021 to
95,294. Over the course of FY 2022, the Court averaged 612 appeals
filed per month, and reached a high of 717 appeals filed in March
2022.''
Out of the 8,164 decisions decided, the Court affirmed the Board's
decision in 411 appeals, affirmed or dismissed in part, reversed or
vacated and remanded in part 3,245 appeals, reversed or remanded 3,629
appeals, and dismissed 879 appeals.
CONCERNS AND RECOMMENDATIONS
Based on the GAO report of July 2021, the Board has implemented and
improved its quality. It reported an increase in the quality of
decisions for legacy appeals at 94.66 percent and AMA appeals at 91.91
percent; however, the Court only affirmed the Board's decision in 5
percent of appeals. This, coupled with the Court reversing or remanding
44 percent of the Board's decisions, acknowledges an issue with the
quality of decisions.
The Board has indicated it needs to train VBA on remand issues and
it is clear training from the Court is needed due to the large number
of remanded cases. We recommend a renewed focus on quality by
establishing a training program for VLJs. This should include feedback
and input from attorneys and judges at the Court.
For many veterans and appellants, while appeals are streamlined by
the AMA it can still take years to get a decision from the Board and
the Court. With the Court reversing or remanding 44 percent of the
Board's decisions, this can lead to more years of waiting for a remand
decision to be finally decided. The Board has shown improvement in
quality; however, with the amount of remanded cases and the low
percentage of affirmed cases, quality is still a major issue and
concern for DAV.
Mr. Chairman, this concludes my testimony on behalf of DAV. I am
happy to answer any questions you or members of the Subcommittee may
have.
______
Prepared Statement of Diane Boyd Rauber
Chairman Luttrell, Ranking Member Pappas, and members of the
Subcommittee, the National Organization of Veterans' Advocates (NOVA)
thanks you for the opportunity to testify today on the VA appeals
process and the quality of actions taken by the Board of Veterans'
Appeals (Board) for veterans, their families, survivors, and
caregivers.
NOVA is a not-for-profit 501(c)(6) educational membership
organization incorporated in the District of Columbia in 1993. NOVA
represents approximately 850 accredited attorneys, agents, and
qualified members assisting tens of thousands of our nation's military
veterans, families, survivors, and caregivers seeking to obtain their
earned benefits from VA. NOVA works to develop and encourage high
standards of service and representation for 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), U.S. Court of Appeals for the
Federal Circuit, and the Supreme Court of the United States. Accredited
attorneys and agents handle a growing volume of appeals at the Board.
In FY 2015, attorneys and agents represented 14.9 percent of appeals
before the Board. By FY 2022, that percentage had grown to 25.7
percent. Compare U.S. Department of Veterans Affairs, Board of
Veterans' Appeals Annual Report Fiscal Year 2015 27, with U.S.
Department of Veterans Affairs, Board of Veterans' Appeals Annual
Report Fiscal Year 2022 49 (hereinafter Board FY 2022 Report).
As an organization, NOVA advances important cases and files 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); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir.
2019) (amicus); NOVA v. Secretary of Veterans Affairs, 981 F.3d 1360
(Fed. Cir. 2020) (M21-1 rule was interpretive rule of general
applicability and agency action subject to judicial review); Van
Dermark v. McDonough, No. 23-178 (September 25, 2023) (amicus in
support of petition for writ of certiorari before U.S. Supreme Court).
In 2000, the CAVC recognized NOVA's work on behalf of veterans with the
Hart T. Mankin Distinguished Service Award.
NOVA also advocates for laws to improve the VA disability claims
and appeals process. NOVA participated in the stakeholder meetings that
resulted in the development and passage of the Veterans Appeals
Improvement and Modernization Act of 2017, Pub. L. 115-55, 131 Stat.
1105 (August 23, 2017) (AMA). As VA has implemented the new system over
the last several years, NOVA has provided extensive training to our
members on the statute, regulations, and practice under the AMA. We
also gather information from our members across the country on their
experiences advocating in both the legacy and AMA systems.
Introduction
Per the Subcommittee's invitation, we address below the quality of
Board actions to include (1) Board determinations on whether a Notice
of Disagreement (NOD) has initiated an appeal; (2) Board remands of
cases to the Veterans Benefits Administration (VBA) for further action
or development; (3) the Board's quality assurance and training program;
and (4) additional issues that hinder timely, quality decisions and
result in long wait times in the AMA system for veterans, family
members, survivors, and caregivers.
I. Board Determinations on Whether an NOD Has Initiated an Appeal
In its recent decision in Kernz v. McDonough, the CAVC found the
veteran's appeal to be moot and therefore did not determine if the
Board's letter finding his NOD to be untimely was a final decision the
veteran could appeal. No. 20-2365 (October 4, 2023). We endorse Judge
Jaquith's characterization of such letters in his dissent: ``A letter
advising the veteran that his appeal was untimely and the Board would
not consider it, without any mention of an opportunity to challenge
that determination, screams final decision, not `prudent and
informative notice' - especially when the letter comes from the Vice-
Chairman of the Board.'' Slip op. at 25 fn 136. Mr. Kernz has since
appealed the CAVC's decision to the U.S. Court of Appeals for the
Federal Circuit.
In the interim, this Subcommittee introduced H.R. 5891, the
Veterans Appeals Decision Clarity Act. This bill would require one
element of the Board's decision to be ``a written determination of . .
. whether the notice of disagreement was adequate and filed timely
under section 7105 of this title.'' Such a requirement would provide a
definitive legal finding made by a Veterans Law Judge in a decision
that is unquestionably appealable. It is critical that this basic
jurisdictional question be answered by the decisionmaker to ensure
there is no confusion about the appellant's ability to challenge it.
NOVA supports H.R. 5891. See National Organization of Veterans'
Advocates, Inc., Statement for the Record Before the House Committee on
Veterans' Affairs, Subcommittee on Disability Assistance and Memorial
Affairs, Concerning Pending Legislation 4 (October 24, 2023).
II. Board remands of cases to the Veterans Benefits
Administration
Board remands continue to be ordered at a high rate. Legacy remands
in FY 2023 were close to 50 percent. While somewhat lower in the AMA,
remands in the new system still hover at the rate of one-third. See
Dispositions by issue, https://www.bva.va.gov/quarterly_reports.asp.
High rates of legacy remands historically have been linked to a
lack of nexus opinions, incomplete and inadequate findings, and lack of
adequate examinations. See, e.g., Department of Veterans Affairs (VA)
Appeals Data Requested by the House Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs (January
2015). Unfortunately, the data shared on the Board's website is not
transparent as to the causes of ongoing high remand rates.
NOVA members, however, continue to report extensive AMA remands for
the same reasons as in the legacy system, as well as due to
``overdevelopment,'' i.e., remanding when there is sufficient evidence
of record that puts the appeal in relative equipoise. For example, one
NOVA member recently represented a veteran with metastatic prostate
cancer. The veteran opted into the Rapid Appeals Modernization Program
(RAMP) in 2019. The record contained a negative opinion from a VA
examiner and a positive opinion from a private oncologist, who had
reviewed the veteran's service treatment records, genetic testing, and
current diagnosis, as well as relevant medical literature and
environmental impact studies. In 2020, the veteran filed a motion to
advance on the docket (AOD) due to his age and terminal illness. Two
years later, despite the evidence being in relative equipoise, the
Board remanded the appeal for an addendum opinion from an ``appropriate
clinician,'' who ultimately agreed with the private oncologist. Seven
months later, this AOD veteran finally received a notification letter
from the Regional Office that his claim was granted. Unnecessary
remands such as these waste resources and time.
In the FY 2022 annual report, the Board noted that it is
``assembling a tiger team'' with VBA ``to evaluate root causes and ways
to reduce remands from the Board to VBA.'' Board FY 2022 Report at 36-
37. Congress should seek a status update on the results of these
efforts and those results should be transparent to the public.
III. Board's quality assurance and training programs
Stakeholders generally have minimal insight into the quality
assurance and training programs and procedures employed by the Board.
In its most recent annual report, the Board described those programs.
See Board FY 2022 Report at 33 (training); 15, 37 (quality assurance).
Regarding quality assurance, the Board described the following
ongoing efforts:
The Board has been collaborating closely with GAO to evaluate
areas for continued improvement in the Board's Quality
Assurance program. This includes evaluating root causes for
declining, but continuing, trends related to unnecessary or
improper remands under the AMA. The Board is monitoring the
outcomes in cases appealed to CAVC and the United States Court
of Appeals for the Federal Circuit to identify trends that may
help enhance the Board's Quality Assurance program. The Board
will continue its collaboration with VA's OGC to provide
targeted trainings to VLJs based on trends seen in these court
cases.
Board FY 2022 Report at 37 (emphasis added). Congress should seek a
status update on the results of these efforts, particularly as related
to remands, and those results should be transparent to the public.
Below, we describe other issues that, if resolved, could serve to
reduce the backlog and ultimately result in more timely decisions of
higher quality.
IV. Additional Issues - Board of Veterans' Appeals
A. Board decisions lag the level of resources provided in the
past several years, causing increased and unacceptable wait
times.
NOVA has supported, and continues to support, funding levels
necessary for the Board to implement the AMA and reduce wait times for
veterans, family members, survivors, and caregivers. Congress
appropriated $174,748,000 to the Board for FY 2019; by FY 2023, that
amount grew 63 percent to $285,000,000. Compare Energy and Water,
legislative branch, and Military Construction and Veterans Affairs
Appropriations Act, 2019, Pub. L. No. 115-244, 132 Stat. 2897 (2018),
with Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, 136
Stat. 4953 (2022). By contrast, the Board issued 95,089 decisions in FY
2019 and 103,245 in FY 2023, representing a much smaller increase at
approximately 8.5 percent. We understand that not every dollar of
increased appropriations can translate to an identical increase in
decisions since funds are allocated for supporting functions as well.
The Board, however, has only two functions: holding hearings and
issuing decisions. Considering the tremendous resources provided by
Congress, decisions should and must increase significantly in the years
ahead as appellants continue to experience longer wait times in all
three lanes, as well as in the legacy system. The Board stated that
``the FY 2024 budget request notes the Board expects to decide at least
115,000 decisions,'' an approximately 21 percent increase. Board FY
2022 Report at 37. That is not enough.
The impact of wait times on veterans, family members, survivors,
and caregivers cannot be overstated. A review of ``average days
pending'' (ADP), which is a more accurate assessment of wait times for
most AMA appellants who are not entitled to expedited treatment, shows
ever-increasing wait times in all AMA dockets. In the first quarter of
FY 2023, the ADP was 440 days in the direct review docket, 575 days in
the evidence docket, and 638 days in the hearing docket. By the fourth
quarter of FY 2023, those times had increased to 577, 682, and 700
respectively. See AMA average days pending, https://www.bva.va.gov/
quarterly_reports.asp.
These wait times, particularly in the direct review docket, are
unacceptable. In stakeholder discussions leading to the passage of the
AMA, veterans relinquished an important benefit of the legacy system:
the right to retain their docket date on remand. This right was
conceded in reliance on a commitment from VA that Board decisions in
the direct review lane would consistently be issued within 365 days.
Nearly five years after AMA's implementation, that commitment has not
been kept. According to NOVA members, many appellants now waiting to
get a decision in the direct review docket were already waiting in the
legacy system and opted into the AMA at VA's urging to get a faster
decision. Now, those who receive a remand in the AMA and do not receive
the requested relief or suffer another inadequate exam are forced to
start the process all over again at the back of the line. This result
is not the reform expected by veterans and their advocates or promised
by VA.
In 2017, the U.S. Government Accountability Office (GAO) warned
Congress, VA, and stakeholders that VA was not adequately prepared to
implement a new system 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). Unfortunately, the goal of finishing legacy
appeals has not been realized and continues to impact wait times in the
AMA. In fact, there is still one open recommendation pending related to
that report: ``As of August 2022, VBA and the Board are establishing a
working group to develop approaches for comparing the new and legacy
appeals processes, including by conducting surveys and listening groups
with VA employees, veteran service organizations, and other advocates.
However, VA plans do not fully articulate what aspects of the legacy
and new processes it will evaluate through its efforts or how it will
analyze and use the information it collects. We will consider closing
this recommendation when VA identifies how it will use the information
it is collecting to determine whether the new process is an
improvement.'' Recommendations for Executive Action, https://
www.gao.gov/products/gao-17-234.
A year later, GAO issued another report. U.S. Government
Accountability Office, VA Disability Benefits: Improved Planning
Practices Would Better Ensure Successful Appeals Reform (GAO-18-352)
(March 2018). Two priority items remain open on that report. One states
a need for the Board ``to develop a methodology, similar to VBA's plan,
for how it will assess the new appeals process compared to the legacy
process. Until the Board takes such action, it will lack information
about how well the new process is performing relative to the legacy
process and possible underperforming areas for improvement.''
Recommendations for Executive Action, https://www.gao.gov/products/gao-
18-352.
While the Board notes repeatedly throughout its FY 2022 annual
report that it has taken longer than expected to resolve legacy
appeals, that is of little comfort to veterans, family members,
survivors, and caregivers who have been waiting for years for
resolution and have relied on the commitments made by VA. Congress must
continue to oversee the implementation of the AMA at the Board and hold
the Board accountable to the commitments made to veterans under the
AMA. Until the Board's delays are sufficiently resolved (or at least
fully understood), Congress should restore the claimant's right to the
same docket number on remand if the Board's remand does not result in a
full grant by the agency.
B. The Board needs to promptly grant motions to withdraw
hearing requests.
The Board takes issue with the large volume of hearing requests,
yet NOVA members frequently report that motions to withdraw those
requests far in advance of a scheduled hearing date are not timely
ruled upon. Months may elapse and undesired hearings are still
scheduled. Advocates do not wish to see Board resources wasted;
hearings that are no longer desired for whatever reason should be
removed as promptly as possible from the docket to ensure resources are
not expended needlessly. The Board should institute a standard
administrative process by which these motions are promptly granted and
hearings removed from the docket.
C. Congress should allow represented veterans to waive the duty
to assist.
The AMA system was designed to allow for claimants to avail
themselves of new options to develop the record before proceeding to
the Board. NOVA members frequently use the higher-level review and
supplemental claim lanes and view these options as important pathways
to obtain benefits and avoid long waits at the Board. When a veteran
who is represented takes a claim to the Board, there should be an
opportunity for them to waive further development under the duty to
assist. NOVA sees this option as a way to reduce unnecessary remands
for tiebreaker examinations and other superfluous development, and make
the ``up or down'' decision that was supposed to be the hallmark of a
Board appeal under the AMA. Congress should consider legislation that
would allow for represented veterans to waive this duty upon appeal to
the Board.
V. Additional Issues - Veterans Benefits Administration
Problems hindering issuance of timely, quality decisions are not
solely due to challenges within the Board of Veterans' Appeals.
Improvements within VBA are also necessary to ensure all veterans,
family members, survivors, and caregivers receive timely, quality
decisions so fewer claimants must seek relief at the Board and remands
are reduced.
A. Ongoing problems with VA examinations hinder quality,
timely decisions.
NOVA has long detailed deficiencies in the disability examination
process, which result in poor quality of exams, inferior service to
veterans, and ongoing delays across the entire VA disability
adjudication system. See, e.g., National Organization of Veterans'
Advocates, Statement for the Record Before the House Committee on
Veterans' Affairs Subcommittee on Disability Assistance and Memorial
Affairs Concerning ``VA Disability Exams: Are Veterans Receiving
Quality Services?'' (July 27, 2023); National Organization of Veterans'
Advocates, Statement for the Record Before the Senate Veterans' Affairs
Committee Concerning Pending Legislation to Include Discussion Draft,
S. , No Bonuses for Bad Exams Act of 2022 (July 13, 2022); National
Organization of Veterans' Advocates, Statement for the Record Before
the House Committee on Veterans' Affairs Concerning Fulfilling Our
Pact: Ensuring Effective Implementation of Toxic Exposure Legislation
(Dec. 7, 2022); see also Department of Veterans Affairs, Office of
Inspector General, Veterans Benefits Administration: Veterans Are Still
Being Required to Attend Unwarranted Medical Reexaminations for
Disability Benefits (March 16, 2023), https://www.va.gov/oig/pubs/
VAOIG-22-01503-65.pdf.
1. Inadequate examinations
The CAVC has repeatedly emphasized VA's role in obtaining
examinations and ensuring those examinations are adequate. See, e.g.,
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (outlining when VA
must obtain an examination); Barr v. Nicholson, 21 Vet.App. 120, 123
(2007) (when VA seeks an opinion, the Secretary must ensure it is
adequate); Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (adequate
medical report must be based on correct facts and reasoned medical
judgment).
Despite this clear precedent, VA frequently failed to ensure
veterans received timely, adequate VA disability examinations when the
Veterans Health Administration conducted nearly all examinations. See,
e.g., Department of Veterans Affairs (VA) Appeals Data Requested by
House Committee on Veterans' Affairs Subcommittee on Disability
Assistance and Memorial Affairs (January 2015) (reasons for remands
between FY 2009 and 2014 centered on issues with medical examinations
and opinions). This problem has not been solved with the shift to
contract examinations.
Frequently, BVA orders a particular type of examination, but it is
conducted by an inappropriate provider, e.g., an OB/GYN nurse
practitioner handling a neck and back exam. Or BVA provides specific
instructions that are ignored by the examiner. Example: The veteran's
claims for bilateral knee conditions were remanded back to BVA from the
CAVC in 2020. BVA remanded in May 2021 and February 2022 for new
medical opinions. In February 2022, BVA specifically ordered the VA
examiner to address the veteran's competent lay statements regarding
the history and chronicity of his knee symptoms. Because the VA
examiner failed to comply with these instructions, BVA yet again
remanded these claims for the examiner to comply with the order, adding
untold months of waiting before the veteran receives resolution.
In addition, NOVA members report that confusing examination
requests contribute to inadequate exams and deficient reports. Many
times, the request does not match the veteran's claims or incorporate
the remand instructions articulated by BVA or the CAVC. Sometimes, the
request is not clear as to whether the veteran must appear for an exam
or the examiner can write the report based on a record review. Without
clear guidance, examiners burdened with large workloads are bound to
conduct inadequate exams and write incomplete reports.
In June 2022, the VA Office of Inspector General acknowledged that
``[r]esults of medical exams are critical pieces of evidence in
supporting veterans' claims for benefits, and the exams represent a
significant investment by VBA.'' Department of Veterans Affairs, Office
of Inspector General, Veterans Benefits Administration: Contract
Medical Exam Program Limitations Put Veterans at Risk for Inaccurate
Claims Decisions i, June 8, 2022 (https://www.va.gov/oig/pubs/VAOIG-21-
01237-127.pdf). The report also found, among other things, that ``[a]ll
three vendors failed to consistently provide VBA with the accurate
exams required by the contracts'' and ``vendor exam accuracy has not
improved and exam errors have not been resolved.'' Id. at 8; 10.
Contract examiners must comply with the terms of their contracts and be
held accountable when they fail to do so. Furthermore, contractors must
correct errors and provide adequate examinations to reduce repeated
remands, which result in continuing delay and backlogs.
2. Overdevelopment
NOVA members also report that VA frequently orders additional
examinations even when adequate medical evidence of record exists and a
favorable opinion has been rendered. Unnecessary examinations are
particularly troublesome considering the statutory requirement for VA
to consider private medical evidence. See 38 U.S.C. Sec. 5125 (``a
report of a medical examination administered by a private physician
that is provided by a claimant in support of a claim for benefits under
that chapter may be accepted without a requirement for confirmation by
an examination by a physician employed by the Veterans Health
Administration if the report is sufficiently complete to be adequate
for the purpose of adjudicating such claim'').
Furthermore, VA may not undertake ``additional development if a
purpose [is] to obtain evidence against an appellant's claim.'' Mariano
v. Principi, 17 Vet.App. 305, 312 (2003). In some instances, NOVA
members report the ordering of additional examinations that appear to
be ``tie breakers,'' e.g., when there is one negative and one favorable
opinion. Such exams are in contravention of VA law and policy requiring
adjudicators to grant the claim when the evidence is in relative
equipoise.
Example 1: In February 2022, a VA contract examiner provided a
favorable opinion on the veteran's claim for service connection for an
arthritic condition. Despite this favorable opinion, VA obtained a
second set of exams, which were unfavorable, and VA's denial made no
mention of the first favorable exam. After a higher-level review, the
claim was sent back for more development due to the ``difference of
opinion.'' This time, the original examiner ultimately concluded the
condition was ``more likely than not'' service connected. Nonetheless,
VA denied the claim.
Example 2: In July 2023, VA sent a claim out for an additional
medical opinion where the VA examiner already provided a nexus opinion
advising that the veteran's depression was secondary to his service-
connected hypothyroidism. The veteran, as a result of his Agent Orange
exposure, is also service connected for Parkinson's disease.
VA also routinely rejects favorable, well-rationalized, private
medical opinions for improper/unlawful reasons, such as the examiner's
``failure to review the veteran's claims file'' or because the
examiner's opinion ``was based on the history reported by the
veteran.'' The CAVC has repeatedly admonished BVA for rejecting
favorable evidence for these reasons, yet these types of rejections
continue to occur on a regular basis. See, e.g., Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 304 (2008) (Board may not reject a private
medical opinion in favor of a VA opinion solely because the VA examiner
reviewed the claims file); Kowalski v. Nicholson,19 Vet.App. 171, 179-
80 (2005) (Board may not disregard a medical opinion solely because the
opinion was based on a history provided by the veteran); see also
Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) (``[R]eliance on a
veteran's statement renders a medical report incredible only if the
Board rejects the statements of the veteran.'').
Solving these problems are key to reducing VBA's backlog, the
Board's backlog, and allowing for more quality decisions to be issued
throughout the system.
B. Additional training is necessary so VA employees do not
deny claims on the basis that only the Board may grant a
certain claim.
NOVA members frequently report that VA adjudicators, particularly
Decision Review Officers (DROs) that handle higher-level reviews, state
they cannot grant a benefit at their level and only the Board may do
so. For example, a DRO recently informed one NOVA member that the Board
has more leniency in interpreting the law than DROs. Another VA
employee informed a NOVA member that they would need to check with
``quality review'' to determine if a claim could be granted, and if it
could not be granted (it was denied), the attorney should appeal to the
Board so they could grant it.
Statutes, regulations, and case law apply equally to VA and Board
adjudicators. VBA needs to conduct additional training with its
employees to emphasize that fact so unnecessary appeals are not filed
to the Board.
CONCLUSION
NOVA remains committed to working with Congress, VA, and fellow
stakeholders to improve the VA disability claims and appeals process.
Thank you again for allowing us to present our views on this important
topic. If you have questions or would like to request additional
information, please feel contact:
Diane Boyd Rauber, Esq.
Executive Director
National Organization of Veterans' Advocates, Inc.
1775 Eye Street, NW
Suite 1150
Washington, DC 20006
(202) 587-5708
drauber@vetadvocates.org
______
Prepared Statement of Michael Figlioli
Chairman Luttrell, Ranking Member Pappas, and members of the
subcommittee, 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 provide testimony with regard to the Board of Veterans
Appeals and it practices.
Since its establishment in 1933, the Board of Veterans Appeals
(BVA) has a rich history with its primary purpose being to provide
veterans with an avenue for appealing decisions made by the VA
regarding claims for benefits. The BVA was created as part of a broader
effort to streamline the appeals process and ensure that veterans
receive fair and just consideration of their claims for benefits.
Over the years the BVA has undergone several changes and reforms to
enhance its efficiency and responsiveness to the needs of veterans. One
significant milestone was the Veterans Judicial Review Act of 1988
allowing veterans to appeal BVA decisions directly to the Court of
Appeals for Veterans Claims (CAVC) marking a significant shift in the
appeals process and providing veterans and appellants with an
additional layer of judicial review.
Perhaps the most substantial change to affect veterans, family
members and survivors wishing to appeal their decisions on benefits
claims to a higher authority was the enactment of the Appeals
Modernization Act (AMA), in 2019. The primary goal was to modernize and
streamline the appeals process but under the ``Legacy'' appeals system,
too often appellants had to endure lengthy delays of months, sometimes
years to navigate a confusing and complex structure and some are still
stuck in that now outmoded system. The AMA aimed to address these
issues by providing veterans with more options and a faster, more
transparent process to appeal VA decisions.
One of the key features of the AMA was the introduction of three
new lanes for appellants to choose from when appealing a decision:
Supplemental Claims, Higher Level Review and Direct Docket to the
Board. The AMA emphasizes increased transparency and more effective
communication throughout the appeals process. Veterans are provided
with better information about the status of their claims with this
streamlined system intending to reduce the backlog of cases in the AMA
inventory.
NOD vs BVA Appeal
A Notice of Disagreement (NOD) is a crucial first step in the
appeals process for veterans seeking a review of their disability
compensation claims with the Department of Veterans Affairs (VA). While
the NOD is a formal expression of disagreement with a VA decision,
historically it has not, in itself, constituted an appeal to the Board
of Veterans Appeals (BVA). The ``Legacy'' NOD initiated the appeal
process. It served as the first official notification to VA that the
veteran disagreed with a particular decision. VBA would then draft a
detailed Statement of the Case designed to explain the initial VA
decision. The veteran would then have to complete an additional form,
the Form 9, certifying the appeal to the BVA for docketing and review
by a Veterans law Judge (VLJ).
Under the Legacy Appeals system, this is where appeals often got
stuck in the churn based on docket date, then awaiting assignment and
review by their advocate who would then submit an Independent Hearing
Presentation (IHP) on their behalf.
Often, Legacy cases were remanded for common due process errors or
for development of additional evidence. What became clear to the VFW
was that this process was archaic and generally unnecessary in many
appeals. Upon review, we determined that the IHP was not based in law
or regulation. It was likely a holdover from practices many years ago
and therefore, if a quality argument was presented on the Form 9, the
appeal could proceed directly to the VLJ after our staff conducted a
quality review. This process was highly successful, and VFW was able to
eliminate its excess workload of Legacy appeals. Today, we are at
functional zero and have been for more than a year thanks to the
efforts of our BVA appeals team and their leadership. However,
functional zero means that Legacy appeals continue to churn through the
remand system, reappearing at the BVA at any time, creating the backlog
of appeals that the BVA now faces under the modern appeal structure.
The advent of the Appeals Modernization Act (AMA), to which VFW was
a major contributor, was intended to alleviate the cycle of Legacy
appeals and allow a VLJ to review them in a timelier fashion. Quicker
decisions mean faster awards for claimants and quality of life
improvements. Under AMA, when a veteran submits the new NOD on the
required form, the appeal proceeds directly to the BVA through the
veteran's selected docket: Direct review, evidence-only, or hearing.
The BVA then has the opportunity to conduct a review of the claim based
on the unique criteria of each lane.
VFW is concerned with the continued excess workload in the AMA
inventory. While the intent continues to be faster and more accurate
decisions, there is work to be done. While VFW wants every veteran to
have their chance to present their case before a VLJ it needs to be
managed properly. By focusing mostly on Legacy appeals to reduce that
inventory or cases requiring to be advanced on the docket (AOD), the
remaining appeals languish. All the while, appeals continue to be
certified to the board. Once a hearing is conducted and completed, VFW
has seen delays in bad transcriptions and long wait times and even
completed AMA files sitting in docket order at the conclusion awaiting
the VLJs decision. If completed, they need to be moved out of the queue
as expeditiously as possible.
Hiring more staff attorneys and VLJs is an excellent step and one
that we applaud. The BVA must have the resources to deliver on their
responsibility to those who serve their country and want their day in
court. Delivering more appeals decisions is admirable but those
decisions must be accurate and timely and not just a number in a
performance plan. The BVA made great strides during the challenges of
COVID to provide veterans with the opportunity to have their hearing
virtually. This was an immense innovation in the way the BVA does
business and was well received by VSOs and veterans alike. Then came
the challenges of staffing and maintaining consistency in the hearing
branch. It seemed that every time someone was assigned to one of our
staff and a positive relationship was being developed, they were moved
to another team or position. We had to start over again, possibly with
an inexperienced coordinator and this contributed to delays,
reschedules or misreported no-show because the information didn't get
to the VLJ. We are happy to see this has improved.
We continue to hear from our BVA staff that there are problems with
electronic management systems intended to manage the workflow. CASEFLOW
needs to be improved or another system that meets the needs of
advocates developed. For years now, we have heard that it is not
accurately updated, it fails to give a defined picture as to where in
the appeals process a case is and it needs to be updated. One of the
greatest limitations is information that is accessible to a veteran's
representative and what issues are on appeal. The issues are the basis
of what the veteran is seeking and impossible to address if they are
inaccurate or inaccessible.
BVA Remands for development
The remand process from the Board of Veterans Appeals (BVA) to the
Veterans Benefits Administration (VBA) is a crucial aspect of the
veterans' benefits adjudication system and often the most confounding
as the workflow may not keep pace with the progression of the appeal.
When the BVA identifies deficiencies or gaps in the evidence presented
during the appeals process, or in providing the appellant due process,
it has the authority to remand the case back to the VBA for further
action or development. This step is intended to reflect VA's commitment
to ensuring a fair and comprehensive review of veterans' claims.
VFW has found that despite the intention of this step in the
process, often, if the record was fully associated with all the
evidence or a complete and thorough review had been completed prior to
a decision being rendered, a remand can be duplicative or completely
unnecessary. The BVA may identify specific areas where more information
is needed to make a well-informed decision which is a positive for the
veteran in achieving the benefits sought on appeal but only if timely
and more importantly accurate to reduce the possibility of continued
remands. VFW is aware that the remand rate for Legacy appeals is 40
percent, and the typical Legacy appeal has been remanded at least
twice. We have also seen some cases remanded as many as seven times.
Under the Legacy system, VBA would receive a remand, complete its
required development, and return the appeal to the BVA for
readjudication. Under AMA, remands are returned to VBA for rework and
VBA issues a new decision without further Board review, restarting the
veteran's review rights, which include not only the NOD, but also
Supplemental Claim and Higher Level Review.
The purpose of AMA was to eliminate remands altogether. The BVA
needs to work more collaboratively with the veteran's accredited
representative to let the veteran know exactly what they need to
provide to succeed. That said, perhaps we must revisit the AMA and
begin discussions as to further enhancements and improvements to the
remand and readjudication processes.
The remand process serves as a means of enhancing due process for
veterans. By allowing for further development, when necessary, it
acknowledges that some cases may not have been thoroughly examined in
the initial stages. This iterative approach ensures that veterans have
ample opportunity to present their cases and that decision-makers have
access to all relevant information before reaching a final decision.
It is the VFW's position that communication and coordination
between the BVA, VBA and accredited representatives are critical during
the remand process. Clear and concise directives that the decision-
maker must comply with from the BVA to the VBA help streamline the
further development of cases. Effective collaboration between these
entities is essential to ensure that the remand process serves its
intended purpose without unnecessary complications and needless delays.
VBA data usage BVA Remands
The Veterans Benefits Administration (VBA) plays a crucial role in
ensuring that veterans receive the benefits and support they deserve.
To achieve this goal, the VBA relies on various sources of data,
including information from the Board of Veterans Appeals (BVA) remand
orders. Remands occur when a case is sent back to the BVA from higher
courts for further review or action. Analyzing the extent to which the
VBA utilizes data from BVA remands is essential in understanding the
agency's commitment to continuous improvement in quality assurance and
training programs and VFW would like to thank the VA Undersecretary for
Benefits and his staff for their commitment to ensuring that lessons
learned are applied not only to future cases and have shown the
willingness to incorporate important changes in law or administrative
process into their training courses.
One key aspect of the VBA's use of BVA remand data is in
identifying trends and patterns related to denied claims. By
scrutinizing the reasons behind remands and denials, the VBA can
pinpoint areas where its decision-making processes may need refinement.
This information becomes invaluable for quality assurance efforts,
allowing the VBA to address systemic issues and enhance the accuracy of
claims processing. Additionally, understanding common reasons for
remands can guide the development of targeted training programs to
improve the skills and knowledge of VBA personnel.
Another dimension of the VBA's reliance on BVA remand data lies in
its ability to adapt to changes in laws or regulations affecting
veterans' benefits. As legal interpretations evolve, remands may
highlight areas where the VBA needs to align its practices with updated
requirements. This responsiveness is crucial for maintaining compliance
and ensuring that veterans receive the benefits to which they are
entitled. By incorporating insights from BVA remands into its training
programs, the VBA can keep its workforce informed and equipped to
navigate the complex and evolving landscape of veterans' benefits law.
The extent to which the VBA uses data from BVA remands is critical
for shaping its quality assurance and training programs. The constant
analysis of BVA ordered remands provides valuable insights into areas
for improvement in decision-making processes, compliance with all legal
requirements, internal communication, and documentation practices. By
actively incorporating these insights into its operations, the VBA can
enhance the accuracy and efficiency of veterans' benefits claims
processing, ultimately fulfilling its mission to serve those who have
served our nation.
BVA usage of CAVC data
The Board of Veterans Appeals (BVA) has a highly significant role
in the adjudication of veterans' claims for benefits, and its decisions
are at times subject to review by the U.S. Court of Appeals for
Veterans Claims (CAVC). The CAVC, through its orders, provides legal
guidance and sets precedents that may influence how the BVA adjudicates
cases. While the BVA is not directly bound by the CAVC's decisions, we
know that it often considers them in shaping its own rulings. The
extent to which the BVA uses data from CAVC orders to inform its
quality assurance and training programs is as important an aspect as
that of VBA using and interpreting data to develop its policies and
proposing future legislation. It is also a key to ensuring consistency
and fairness in the adjudication process.
By BVA using data from CAVC orders through case analysis it can
guarantee the accurate application of the law as intended by VA or
Congress. By examining the reasoning and outcomes of cases reviewed by
the CAVC, the BVA can identify patterns, common legal issues, and areas
where its decisions may be prone to challenge. This data-driven
approach allows the BVA to pinpoint specific areas for improvement in
its decision-making process and tailor its training programs
accordingly.
Quality assurance within the BVA must involve continuous evaluation
of its decisions to identify errors or inconsistencies. The analysis of
CAVC orders can serve as a valuable resource in this regard. If the
CAVC overturns a BVA decision, it provides a clear signal that there
may be flaws in the initial adjudication. BVA can then implement
corrective measures to enhance the quality of its decisions and reduce
the likelihood of future reversals.
However, it's essential to recognize that the BVA operates within a
broader legal framework, and CAVC decisions are just one of many
factors influencing its practices. While CAVC orders can provide
valuable guidance, the BVA must also consider other legal authorities,
statutes, and regulations. Striking the right balance between adapting
to legal developments and maintaining consistency in training and
proper adjudication is a complex challenge that the BVA faces.
Overall, VFW is pleased with the reforms and changes made at the
Board of Veterans Appeals over the last several years. We must all keep
in mind that the AMA is a framework whose intended passage must
continue to be revisited and adjusted to keep pace with changes in
regulation. BVA must maintain a fully staffed and well-trained
workforce. VFW encourages the Chairman to continue to reach out in
collaboration with the VSO and accredited representative community to
advance its agenda. By the same token BVA must also be responsive to
suggestion and constructive criticism. Communication and interaction
from all levels of the BVA are crucial to the positive outcomes we all
strive for in representing appellants before the Board. VFW encourages
the BVA leadership to fill vital open senior management positions as
quickly as possible to provide continued continuity and direction the
BVA staff. This will enable the BVA, its organization and mission to be
refined to deliver on its promise of faster, clearer, more transparent
operations and appeals decisions. Our organization look forward to
contributing to this effort, recognizes the value of our partnership
and will continue to make positive changes in our business processes
that serve veterans, their families, and survivors.
Chairman Luttrell, Ranking member Pappas this concludes our
testimony. I am happy to answer any questions you may have.
______
Prepared Statement of Zachary Stolz
Chairman Luttrell, Ranking Member Pappas, and Members of the
Subcommittee:
Thank you for inviting Chisholm Chisholm & Kilpatrick LTD (CCK) to
testify at today's legislative hearing of the Subcommittee on
Disability Assistance and Memorial Affairs.
CCK is a public interest law firm, with offices in Providence,
Rhode Island and Houston, Texas. We serve clients across the nation
focusing on veterans disability compensation, bequest management, and
long-term disability insurance claims. Since 1999, CCK has represented
thousands of veterans and their family members before VA and the U.S.
Court of Appeals for Veterans Claims. CCK has the most VA-accredited
attorneys, practitioners, and claims agents of any law firm in the
United States. The firm has been involved in legislative processes and
landmark, precedent-setting cases that have benefited the entire
veterans' community.
We are pleased to offer our views on these issues impacting
veterans and their families.
Introduction
Congress passed the Veterans Appeals Improvement and Modernization
Act of 2017 ``to expedite VA's appeals process,'' as a response to VA's
ever-growing backlog of appeals and increasing wait times throughout
the claims process. H.R. Rep. No. 115-135, at 2 (2017). As we approach
the fifth year in the AMA, wait times at the Board of Veterans' Appeals
are as long as ever: the Board is failing to meet its 365-day stated
goal for issuing direct docket decisions, and it is taking years to
adjudicate evidence and hearing docket appeals. This is despite a
historic budget for Fiscal Year (FY) 2024 and the availability of
increased resources. Congress must act to ensure that the promises made
to our nation's veterans are promises kept.
At the Subcommittee's invitation, I will address the following:
1. The Board's failure to issue timely AMA Decisions.
2. The Board's high remand rate, a problem the AMA is supposed
to fix.
3. The use of waiver as an effective tool for veterans and
their advocates to secure timely resolution of their Board
appeals.
4. The Board's rising expenditure per case and contrasting
production stagnation.
5. The experience level and quality of new Board members.
6. The most recent Chairman's Report.
1. The Board of Veterans' Appeals is not Issuing AMA Decisions
Swiftly.
In the Legacy appeals system, VA delays were prolonging appeals
over three years, on average. Government Accountability Office, VA
Disability Benefits: Additional Planning Would Enhance Efforts to
Improve the Timeliness of Appeals Decisions (GAO-17-234) (Mar. 2017).
With an appeal rate increasing by 20 percent every year, the average
wait time in the Legacy system was projected to rise to eight-and-a-
half years. Id. Support for appeals reform legislation highlighted how
it would not only ``efficiently and effectively resolve backlogged
claims'' but also ``prevent this kind of backlog from happening in the
future.'' 163 Cong. Rec. H4417-03 (daily ed. May 22, 2017).
To address these concerns, the Board committed to issuing decisions
in the direct docket within 365 days and decisions in the evidence
docket in approximately 18 months. See Decision Wait Times, Board of
Veterans' Appeals, available at https://www.bva.va.gov/decision-wait-
times.asp (last accessed Nov. 22, 2023). Veterans whose appeals had
been sitting for years in the Legacy system were enticed with these
clear timeframes to move their cases out of Legacy and into the AMA.
Options to move cases from Legacy to AMA were many, including via VA's
pilot program, the Rapid Appeals Modernization Program (RAMP), or by
opting a Legacy Statement of the Case (SOC) or Supplemental Statement
of the Case (SSOC) into the AMA.
The Board has failed to achieve its stated AMA decision timeliness
goals. At the AMA's outset, the Board was initially issuing timely
decisions in the direct docket. But that changed once more veterans had
opted into the AMA and as the Board changed the formula for how it was
deciding AMA versus Legacy cases. The Board prioritized Legacy cases to
the detriment of AMA appeals. The Board did this without regard to the
fact that many veterans opted their Legacy cases into AMA in response
to VA's pleas and promises to decide cases faster in the AMA. A
population of these veteran claimants had earlier docket numbers than
those who did not opt their appeals into AMA, meaning that veterans who
opted in lost an earlier place in line at the Board for a decision. As
a result, veterans who declined to opt into AMA, and who remained in
Legacy, found themselves further ahead in line than their counterparts
who had been waiting longer for a decision. This result ran counter to
VA's promise to eligible veterans that opting into an AMA appeal lane
``may lead to an earlier resolution of your claim.'' RAMP Opt-In
Letter, available at https://benefits.va.gov/BENEFITS/docs/appeals-
RAMP-Opt-in-letter.pdf (last accessed Nov. 22, 2023).
According to VA's AMA Metrics report, current through October 2023,
the Board's average days to a decision in the direct docket are 592 and
692 in the evidence docket. See AMA Metrics Reports, October 2023, Tab
``Part 1--AMA (E, G, J),'' available at https://www.benefits.va.gov/
REPORTS/ama/ (last accessed Nov. 22, 2023). These numbers reflect a
mean, not a median, average. Because some appeals are advanced on the
Board's dockets due to advanced age, serious illness, or financial
hardship, those appeals are prioritized, regardless of docket order.
They are decided within a few months, skewing the data as to how long
the average person whose case is not advanced at the Board is waiting.
The reports therefore do not account for the experience of a veteran at
either end of the spectrum: they overshoot the waiting period for an
advanced-on-docket claimant by years, and yet they still underestimate
the waiting period for a veteran whose case is not advanced.
The Board's shift to focus primarily on Legacy appeals has created
a massive AMA backlog. At the end of October 2023, there were 186,543
AMA appeals pending at the Board. See AMA Metrics Reports, October
2023, Tab ``Part 1 AMA (A-D),'' available at https://
www.benefits.va.gov/REPORTS/ama/ (last accessed Nov. 22, 2023). By
contrast, the Board had only decided 32,661 AMA appeals in FY 2023. See
Decision Wait Times, Board of Veterans' Appeals, available at https://
www.bva.va.gov/images/appeals/ama-appeals-decided-past-five-years-
large.jpg (last accessed Nov. 22, 2023).
These delays, along with the growing volume of AMA backlogged
appeals at the Board, confirm that VA has not only failed to
``efficiently and effectively resolve backlogged claims'' but has also
failed to ``prevent this kind of backlog from happening in the
future.'' 163 Cong. Rec. H4417-03 (daily ed. May 22, 2017). The Board's
failure to keep its commitment to veterans in AMA has caused the
Board's AMA dockets to suffer from the same serious deficiencies (like
a massive backlog and egregious wait times) that plagued the Legacy
system Congress attempted to fix. The Board's inability to manage its
AMA dockets has effectively resulted in untenable wait times for many
deserving veterans.
2. The Board Remands at an Alarmingly High Rate, a Problem the
AMA Set Out to Fix.
In the VA system, a veteran's appeal is remanded back to a VA
regional office if the record is not complete for the Board to make a
fully informed or favorable decision. Of the 70,584 decisions issued on
Legacy appeals in FY 2023, approximately 44 percent of those decisions
were remands. In the AMA system, the Board decided over 32,000 AMA
appeals and remanded approximately 28 percent of them. See
``Dispositions by hierarchy,'' Quarterly Reports for FY 2023, Board of
Veterans' Appeals, available at https://www.bva.va.gov/
Quarterly_Reports.asp (last accessed Nov. 24, 2023). In other words,
close to half of all Legacy appeals, and more than a quarter of all AMA
appeals, were returned to VA's regional offices for further development
in FY 2023.
Each remand means that veterans must wait even longer for a final
decision to be made on their claim. It also means that the Board is
expending resources to work on a case, issue a remand, and send it back
to a regional office for further development. Many of these remanded
cases ultimately return to the Board if a decision from the regional
office is not favorable to the claimant.
VA's remand rate has remained high over the past three years, with
the Legacy remand rate increasing year over year. A high remand rate is
particularly damaging to veterans in the AMA, as these veterans lose
their place in line on the Board's AMA dockets after a remand. This
results in veterans waiting years longer for a final decision on their
claim.
3. Waiver is an Important Tool for Veterans and their Advocates
to Secure Timely Resolution of their Board Appeals.
Accepting a knowing waiver of certain rights from veterans will
help the Board make faster decisions on claims, such as requests for a
total disability rating based on individual unemployability (TDIU).
This is a benefit reserved for veterans whose service-connected
disabilities prevent them from securing and following substantially
gainful employment. Veterans can be awarded schedular TDIU if they meet
certain rating criteria and may still qualify for what is called
``extraschedular'' TDIU if they do not.
Section 4.16(b) states that veterans' cases should be referred to
the Director of the Compensation Service for extraschedular
consideration of TDIU when their service-connected disability
limitations render them unable to work but do not meet the percentage
requirements for schedular TDIU. 38 C.F.R. Sec. 4.16 (2023).
Many veterans seeking extraschedular TDIU at the Board find that
the Board refuses to issue a final decision on entitlement to
extraschedular TDIU. Instead, the Board remands to a regional office
for extraschedular consideration by the Director of the Compensation
Service, who often rubber-stamp denies TDIU, leaving the veteran with
no choice but to file another appeal (and wait for it to be decided) to
continue seeking the benefit.
Veterans should be able to waive their right to review by the
Director of Compensation in favor of receiving a decision from the
Board, which is qualified to make a TDIU determination. This is
especially true since the Veterans Court has made clear that the
Director's opinion is not evidence in a case. See Wages v. McDonald, 27
Vet.App. 233, 236 (2015). The opportunity for waiver can be a tool of
efficiency that costs VA and the Board nothing.
The same type of waiver should be available for VA's duty to
assist. The phrase ``duty to assist'' describes VA's obligation to help
veterans develop their claims by gathering potentially supportive
evidence, such as service records, medical records, and more.
If the Board finds that a regional office made a duty to assist
error, it usually remands the case and instructs the RO to fix that
error. While the Board is not obligated to remand cases for additional
development, it often does, leading to one cause of the alarming remand
rates at the Board. To help minimize unnecessary wait times for
veterans, veterans should have the right to waive the duty to assist in
some cases.
If an appeal is at the Board, and if the record is fully
developed--meaning that the file contains enough favorable evidence
warranting a grant of benefits--then a veteran should have the right to
waive any additional development under VA's duty to assist.
In CCK's experience, and in so many cases, the Board's duty to
assist remands unfortunately do not yield a positive result for the
veteran in the long run. Remands for more information--that is not even
necessarily favorable to the claimant or may not exist--simply hold up
the process for veterans who have already been waiting oftentimes years
for a decision. The Office of the Inspector General confirmed that the
duty to assist process is not always fruitful or necessary, discovering
that 37 percent of cases reviewed during a portion of FY 2017 included
unwarranted reexamination requests. Department of VA, Office of the
Inspector General (OIG), Unwarranted Medical Reexaminations for
Disability Benefits, Report #17-04966-201, available at https://
www.va.gov/oig/pubs/VAOIG-17-04966-201.pdf (last accessed Nov. 23,
2023).
The duty to assist is an important right for veterans and an
essential part of the VA benefits process, but once all development is
complete, veterans should be able to tell the Board that there is no
reason for further development. The Board would then be able to quickly
render a decision on the case and move on to the next one. If the
purpose of the duty to assist is truly pro-claimant, and if it is meant
to be a benefit to a veteran to assist with claim development, then
veterans should be able waive the benefit that is statutorily provided
for them.
4. The Board of Veterans' Appeals Cost Per Case is Rising while
Production Stagnates.
The Board of Veterans' Appeals budget for Fiscal Year (FY) 2023 was
$285 million, a 20 percent increase from the previous fiscal year. The
cost for the Board to work each case in FY 2023 was approximately
$2,760, a 63 percent increase since 2020 and almost $500 more per case
than just last year.
The Board's production has not risen in step with these increases.
In FY 2022, the Board made 95,294 decisions. In FY 2023, with a 20
percent larger budget, it made 103,245 decisions. Since FY 2020, the
Board's budget has surged by approximately 61 percent, escalating from
$174 million in 2020 to $285 million in FY 2023. Strikingly, the
increase in budgetary allocation has not proportionally translated into
enhanced productivity. In comparison, the Board only decided 0.5
percent more appeals in 2023 than in 2020.
5. There are Concerns about the Experience Level and Quality of
New Board Members.
One contributing factor to the rising cost per case is the
inexperience of Veterans Law Judges (VLJs) the Board is hiring.
Traditionally, VLJ applicants were required to possess a minimum of
seven years' experience in veterans law. This prerequisite ensured a
comprehensive understanding of VA regulations, the dynamic landscape of
caselaw from the courts, and other essential nuances critical to
delivering high-quality decisions.
In February 2020, the longstanding seven-year experience
requirement was eliminated from the VLJ hiring criteria. This policy
shift opened the door for the recruitment of VLJs with no prior
experience in veterans law. Since the summer of 2021, more than 50
percent of VLJs hired at the Board lacked any prior background in
veterans law.
The impact of this change is evident in the data: inexperienced
VLJs have issued significantly fewer decisions compared to their more
seasoned counterparts. In 2021, thirteen inexperienced VLJs averaged 1
to 6 decisions per week, while more experienced VLJs consistently
issued between 13 and 26 decisions per week. Based on these figures, it
is projected that inexperienced VLJs will issue approximately 3,432
decisions in a year, while their experienced counterparts will
contribute approximately 14,872 decisions. This stark contrast
represents a difference of over 11,000 decisions, exceeding 10 percent
of the Board's annual output.
These concerns prompted a group of experienced VLJs to write a
letter to my firm, highlighting the adverse effects of these practices.
The letter underscores that experienced VLJs are now burdened with
training their inexperienced colleagues, in addition to managing their
existing responsibilities. This extends even to Board attorneys, who
are now tasked with training their own supervisors, creating conflicts
with the Board's longstanding policy that VLJs are entrusted with the
training and mentoring of attorneys.
Regrettably, these changes have a direct and detrimental impact on
veterans, their dependents, and their survivors. Inexperienced judges
without proper training are likely to issue fewer decisions, resulting
in prolonged wait times for the hard-earned VA benefits upon which
veterans and their families depend. It is imperative to reevaluate the
recent changes in VLJ hiring practices and consider their implications
on the Board's ability to fulfill its mission effectively.
6. The Chairman's Report Needs Proper Context.
According to the Board Chairman, Veterans Court ``judge
dispositions on the merits overwhelmingly uphold Board decisions at a
rate of at least 95 percent affirmed to less than 5 percent reversed.''
Chairman's Annual Report, FY 2022, at 14, available at https://
www.bva.va.gov/docs/Chairmans_Annual_Rpts/bva2022ar.pdf (last accessed
Nov. 24, 2023). While outright reversal of Board decisions is
relatively rare, this statement is misleading. The Court's annual
report shows that in appeals decided on the merits by at least one
judge, the Court affirmed only 411 appeals. U.S. Court of Appeals for
Veterans Claims, Annual Report, FY 2022, at 3, available at https://
www.uscourts.cavc.gov/documents/FY2022AnnualReport.pdf (last accessed
Nov. 24, 2023). In contrast, the Court at least partially vacated about
1,120 cases decided on the merits by at least one judge. Id. So, when
accounting for remands based on Board error, the actual rate of
affirmance in appeals decided on the merits by at least one judge is
approximately 27 percent--far less than the 95 percent rate cited in
the Chairman's Report.
Furthermore, the remaining 1,120 appeals that are remanded by a
judge reflect only a fraction of all the appeals that the Court remands
to the Board. As the Chairman's Report recognizes, the vast majority of
the 6,000-plus appeals that the Court remanded in FY 2022 were based on
a joint motion in which the claimant's attorney and VA's attorney
agreed that the Board erred in some way. Those errors include the
failure to apply a relevant statute or regulation, the failure to
ensure compliance with the duty to assist, improper application of the
rules for assessing the credibility of lay evidence, or the complete
omission of favorable evidence in the Board's analysis, among many
others.
According to the Chairman's report, however, these joint motions
are merely agreements between ``Court clerks and VA Office of General
Counsel attorneys [] to jointly remand select issues from appealed
cases back to the Board so the judge can further explain the reasons
and bases supporting the judge's denial.'' Chairman's Annual Report, FY
2022, at 17. Court clerks are not parties to joint motions for remand,
contrary to the Chairman's characterization of the motions. And joint
motions are rarely--if ever--for the Board to simply provide further
explanation for its denial. Decades of case law has made clear that
``remand is not required in those situations where doing so would
result in the imposition of unnecessary burdens on the[Board] without
the possibility of any benefits flowing to the appellant.'' Winters v.
West, 12 Vet.App. 203, 208 (1999) (en banc) (bracketing in the
original).
Though some joint motions for remand are based on the Board's
failure to provide an adequate statement of reasons or bases for its
denial, the Chairman's Report is incorrect that these remands are not
based on legal error. See Chairman's Annual Report, FY 2022, at 17. The
Board is statutorily required to provide an explanation for its
decision that is sufficient to allow judicial review of its findings.
When it fails to do so, its decision is not in accordance with law
(i.e., 38 U.S.C. Sec. 7104(d)(1)). Remands on this basis are not for
the Board to simply ``further explain the reasons and bases supporting
the [Board]'s denial.'' Chairman's Annual Report, FY 2022, at 17. They
are for the Board to reexamine the record and issue a new, complete
decision that the Court can review, if necessary. The Court must also
``take due account of the rule of prejudicial error.'' Shinseki v.
Sanders, 556 U.S. 396, 409 (2009). This means that the Court is not
sending cases back to the Board unless the veteran has shown that they
have suffered harm because of the Board's error.
The report's significant misrepresentations about the process at
the Veterans Court are concerning. The overall tone of the report
borders on hostility to the Court's role in this process. This
hostility is entirely misplaced. It is also concerning that the Board
foists blame on the Court and on veterans' advocates for Board delays.
Any cursory review of the actual data demonstrates that this is not the
case.
Conclusion
The Board is faced with a difficult and vital task. Its members and
staff work hard and with the best interests of veterans in mind, but
the Board can and must be improved. Thank you for inviting CCK to give
some of its thoughts on these issues. If you have questions or would
like to request additional information, please feel free to contact:
Zachary M. Stolz, Esq.
Partner
Chisholm Chisholm & Kilpatrick LTD
321 S Main St #200
Providence, RI 02903
zstolz@cck-law.com
401-331-6300
______
Prepared Statement of Douglas Massey
Chairman Luttrell, Ranking Member Pappas, and Members of the
Subcommittee:
Thank you for inviting the American Federation of Government
Employees (AFGE) to participate in today's Subcommittee Hearing
entitled, ``Examining the VA Appeals Process:Ensuring High-Quality
Decision-Making for Veterans' Claims on Appeal.'' My name is Douglas
Massey, and for the past seven years, I have had the honor of serving
as President of AFGE Local 17, representing approximately 900 attorneys
and additional support staff at the Board of Veterans' Appeals (``the
Board''). On behalf of AFGE, its National Veterans Affairs Council, and
AFGE Local 17, it is a privilege to offer insights to the Disability
Assistance and Memorial Affairs (DAMA) Subcommittee on ways to enhance
the Board's appeals process for the benefit of our nation's veterans.
The foundation of well-informed decisions, whether in the public or
private sector, lies in the unique perspectives of those directly
engaged in the work. This is where unions such as ours play a crucial
role. As frontline employees responsible for adjudicating veterans'
claims, we possess a distinct perspective on both the strengths and
shortcomings of current Board procedures. My testimony today aims to
highlight areas where both Board leadership and this Subcommittee can
support the dedicated workforce, focusing on recruitment and retention,
training, as well as workload and performance. Addressing these aspects
will empower the Board's personnel to fulfill their mission of
providing timely resolutions to the claims of our nation's veterans,
many of whom have endured lengthy waits for final decisions.
Regrettably, recent leadership changes at the Board have introduced
challenges within the organization, contributing to demoralization
among our dedicated employees, with some considering leaving. The
turmoil arises from decisions made by a relatively new leadership team
lacking veterans law experience. These decisions include downgrading
the career path for attorneys, appointing Veterans Law Judges (VLJs)
lacking any experience in veterans law, providing deficient training
and support for our professional staff, and imposing unrealistic quotas
hindering thorough evidence examination. This confluence of factors has
created a chaotic work environment, negatively impacting the
effectiveness of the Board's operations, to the detriment of the
veterans we serve.
Downgrade of the Attorney Career Path to GS-13
For many decades, the Board has had a GS-14 career path for
attorneys. Some two years ago, however, Board leadership downgraded the
career path to GS-13, which is counterintuitive from a management
perspective and does not help the VA's and this subcommittee's goal of
recruitment and retention of talent. Any competent executive
understands the importance of competitively remunerating the highest
qualified candidates for any job based on their work and abilities.
Eliminating this level of growth and compensation for attorneys
dissuades qualified applicants from joining the Board or choosing to
stay long-term. Instead of aligning with the standards of colleagues in
private practice, Board management has effectively lowered the salary
cap for attorneys, widening the competitive pay gap among attorneys in
the public and private sectors. We firmly believe that this Committee
shares our commitment to ensuring that disability claims for veterans
and their families receive the highest level of attention. We have
requested Board leadership and Secretary McDonough to reconsider this
shortsighted policy to attract and retain the best candidates to the
Board's ranks. Neither responded. Furthermore, while this shortsighted
decision only impacts new hires, it sent a strong message to the entire
attorney-workforce that they are not valued.
We further propose that the Board take a more comprehensive step by
creating a competitive journeyman non-supervisory GS-15 attorney
position. Currently, Board attorney grades range from GS-11 to GS-14,
with nearly half of decision-writing attorneys at the GS-14 level.
While not all attorneys would qualify or choose to advance to a GS-15
position, establishing the possibility for 100 to 200 GS-15 attorneys
would significantly contribute to long-term recruitment and retention.
It is noteworthy that non-supervisory journeyman GS-15 attorneys exist
within the VA Office of General Counsel, setting a precedent. Given
that Board attorneys are in the Excepted Service, it is within the
Secretary's discretion to create and fill these new positions. We ask
the committee to take legislative action.
Inexperienced Veterans Law Judges
The decision to hire VLJs without any veterans law experience is
equally disruptive and detrimental to the Board's mission.
Historically, VLJs were required to possess a minimum of seven years of
experience in veterans law, acknowledging the intricate nature of the
work involving complex legal statutes, evolving caselaw, and nuanced
medical terminology in VA disability claims. To our dismay, in February
2020, the longstanding seven-year requirement was abruptly eliminated
from the VLJ hiring criteria, opening the door for appointments for
those without any veterans law experience. Shockingly, over 85 percent
of VLJs hired since the summer of 2021 arrived without this essential
expertise, a shift that we believe is detrimental to veterans and
taxpayers alike.
The data reveals a stark contrast in decision output between
inexperienced VLJs and their seasoned counterparts. From October 2021
to June 2022, inexperienced VLJs issued an average of one to six
decisions per week, while VLJs with seven or more years of experience
issued between 13 and 26 decisions weekly. Extrapolating these data
suggests a significant difference in outcomes, with inexperienced VLJs
likely issuing approximately 3,432 decisions compared to the 14,872
decisions projected from experienced counterparts, a difference of over
11,000 decisions or more than 10 percent of the Board's annual output.
In addition to fewer decisions, attorneys complain that the
inexperienced VLJs struggle with approving quality decisions, requiring
that attorneys train the VLJs for whom they work. Similarly, many of
the Board's experienced VLJs are now tasked with training their new
inexperienced colleagues, which detracts from time they could devote to
signing decisions. A VLJ's job is extremely difficult. They are already
under immense pressure to review and sign at least 20 decisions per
week, conduct numerous hearings, and mentor attorneys. The practice of
attorneys training these inexperienced VLJs to whom they report
conflicts with the Board's longstanding policy that VLJs are charged
with training and mentoring attorneys. When VLJs lack the knowledge and
experience to train their attorney-subordinates, a knowledge gap
results in the more junior attorney ranks. This knowledge gap will
ultimately reduce the quality of Board decisions and harm veterans. As
things stand, a junior attorney cannot rely on the inexperienced VLJ
supervisor to answer any questions of law, and more experienced
attorneys cannot engage in productive dialog regarding complex or novel
legal issues.
Furthermore, the hiring of inexperienced VLJs has demoralized
attorneys because it has foreclosed promotion opportunities to these
coveted positions. Some attorneys have indicated they plan on retiring
earlier than expected. These complaints are also reflected in an August
2021 survey of over 200 Board attorneys in which 74 percent of
respondents agreed with the statement: ``The hiring of Veterans Law
Judges from outside the Board has discouraged my hope of being promoted
to that position.'' Only 5.5 percent disagreed. This should cause alarm
because more than 400 attorneys and VLJs, including probationary
employees, have left the Board in just the past five years. Clearly,
the Board's new hiring practice undermines the goal that the federal
government be a model employer by attracting and retaining talent.
Experienced VLJs also feel disheartened, witnessing the erosion of
promotion opportunities for highly qualified attorneys they've
mentored. A group of experienced VLJs felt compelled to raise awareness
about these practices, advising an external law firm specializing in
veterans' benefits litigation, a move that has received coverage in
Spectrum News on September 22, 2022.\1\ The VA's press team declined to
comment on the story. Perhaps VA leadership can comment on this issue
at today's hearing. AFGE respectfully requests your assistance in
resolving this important matter through your oversight and legislative
abilities. Indeed, we ask that the seven-year experience requirement
for entry-level VLJs be codified into law.
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\1\ See https://ny1.com/ nyc/ all-boroughs/ politics/ 2022/ 09/ 22/
veteran-affairs-comes-under-fire-after-massive-backlog-.
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Training
The Board has also failed to provide sufficient training and
support to new and experienced attorneys because of management's
singular focus on the Board's overall output while failing to
prioritize work product quality. The lack of training at the Board has
been so severe that VLJs have reached out to me and my union colleagues
for assistance. I can proudly say that for the benefit of veterans in
our care, Local 17 has tried to fill the training gap left by
management.
In response to a plethora of complaints and inaction by management,
Local 17 initiated a special program led by Dr. Benton Komins, a
steward aimed at providing tools, support, and efficiency strategies to
ensure the success of decision-writing attorneys. Collectively, Dr.
Komins and his team of volunteer Local 17 bargaining unit attorneys
have offered individualized assistance and training to an average of 50
attorneys per year. While upper management has taken notice of Dr.
Komins' successful initiative, there has been no effort whatsoever to
institute an analogous program on their part. In contrast to the
successful Local 17-initiated assistance project, management offered a
total of two hours' mandatory training in the past year regarding the
PACT Act. Notably, VBA provided its employees 15 hours of mandatory,
time prorated training. The minimal PACT Act training provided by the
Board stands in stark contrast to the complexity and breadth of the
Act. Unfortunately, and predictably, the impacts of minimal training
include decreased quality of decisions. As this subcommittee is well
aware, the PACT Act introduced substantial changes to veterans law.
With only two hours of training, Board attorneys and VLJs are ill-
equipped to understand the nuances of this statute, significantly
increasing the risk of errors and inadequate decisions for veterans
seeking their rightfully earned benefits. The lack of PACT Act
expertise at the Board not only denies justice to our veterans but also
burdens the adjudication system with avoidable appeals and re-
examinations. It further harms VA's mission by eroding the trust
veterans place in VA to adjudicate their claims fairly and capably.
Insufficiently trained attorneys are more likely to require
additional time to research and understand the new law, leading to
delays in claim processing and a backlog of cases. This inefficiency
further delays veterans' access to benefits. Faced with the challenge
of applying complex legal changes with minimal training, attorneys may
experience moral and professional dilemmas, contributing to the already
noted issues of low morale, burnout, and high attrition at the Board.
It is imperative that the Board revises its training protocols
either on its own or through a statutory mandate, ensuring that our
attorneys are not only well-versed in the intricacies of new
legislation but are also fully prepared to uphold the rights and
entitlements of our veteran population. When doing so, the Board should
also solicit the opinions of Local 17 attorneys who have already
showcased an effective training program. Our veterans deserve no less
than our best and most informed efforts.
Workload and Performance
In examining the workload and performance of Board attorneys, it is
critical to understand the continually evolving quotas and performance
metrics Board attorneys face, the obstacles outside of attorneys'
control and the differences between ``Legacy Claims'' and Appeals
Modernization Act (AMA) claims, including new PACT Act claims.
The Board has made significant changes over the past several years
regarding the number of cases and issues a Board attorney must complete
annually. Prior to the implementation of the AMA, Board attorneys were
expected to complete 125 cases a year, a pace that averaged 2.4 cases
per week. Each case, regardless of the number of issues decided,
carried the same weight toward an attorney's production quota. In FY
2018, the Board increased its production standards from 125 to 169
cases per annum, (or 3.25 cases per week), a 35 percent increase in
production requirements which was overwhelming for Board attorneys. In
FY 2019, the Board created an alternative measure or track of
production for Board attorneys which evaluated the total number of
issues decided by an attorney, regardless of the number of cases
completed, setting that number at 510 issues decided. AFGE supports the
creation of this alternative metric, as it better accounts for the
amount of work required to complete each case. However, we caution that
measuring the number of issues can also be manipulated to create unfair
metrics. Unfortunately, this manipulation appeared in FY 2020, the
first full year the AMA was fully implemented, because while the case
quota remained at 169, the issue quota was raised to 566. In FY 2021,
the quota was changed to a more manageable but still very difficult 156
cases or 491 issues. This has remained the same through FY 2024, though
upper management has actively discouraged attorneys from taking the
``issues track'' toward completion of the annual quota.
AFGE members and Board attorneys are not afraid of the hard work
necessary to satisfy the mission of serving veterans. However,
extraordinarily challenging metrics make it more difficult to meet
standards, setting attorneys up for failure or forcing them to cut
corners in order to meet their production goals. Chairman Jaime
Areizaga-Soto recently announced that the Board-wide quota would be
increasing from 103,000 appeals annually to 111,000. AFGE strongly
urges the Board to lower the quota to allow sufficient time for
required de novo review of claims files and issuance of quality
decisions. The Board should in parallel continue to hire more attorneys
to meet the increased production goal. AFGE truly fears that if the
current quota remains, many hardworking and successful attorneys will
continue to leave the Board either from overwork, inability to meet the
quota, or discomfort with being forced to cut corners. Because of this,
AFGE also urges this committee to request a Government Accountability
Office study on the production standards of Board attorneys to
determine what is feasible while retaining high quality standards.
Last, beyond the issues surrounding production quotas there are
other concerns that should be examined by the DAMA Subcommittee. The
first is the requirement that an attorney may only receive credit for a
case once a VLJ signs off on the work. While in theory this may sound
like a plausible requirement, considering the amount of work and burden
already placed upon VLJs, this can severely hinder an attorney's
ability to timely reach his or her quota. These delays are entirely out
of the attorney's control but can prevent an attorney from meeting his/
her quota, qualifying for within grade increases, or meeting
requirements for overtime eligibility. Holding attorneys accountable
for VLJ-caused delays violates Article 27, Section 8, Subsection E of
AFGE's collective bargaining agreement with the VA, which states ``When
evaluating performance, the Department shall not hold employees
accountable for factors which affect performance that are beyond the
control of the employee.'' This requirement that credit can be assigned
only after VLJ signature is arbitrary and should be adjusted.
In summary, AFGE members believe that making straightforward
changes to Board attorneys' compensation, promotion opportunities,
training, and performance measures - together with setting minimum
experience levels for VLJs - will greatly benefit the productivity and
effectiveness of the Board of Veterans' Appeals. Thank you for giving
me the opportunity to testify at today's hearing. I look forward to
answering any questions you may have.
Statements for the Record
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