[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
BOARD OF VETERANS' APPEALS ADJUDICATION
PROCESS AND THE APPEALS
MANAGEMENT CENTER
=======================================================================
HEARING
before the
SUBCOMMITTEE ON DISABILITY ASSISTANCE
AND MEMORIAL AFFAIRS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 25, 2007
__________
Serial No. 110-46
__________
Printed for the use of the Committee on Veterans' Affairs
----------
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COMMITTEE ON VETERANS' AFFAIRS
BOB FILNER, California, Chairman
CORRINE BROWN, Florida STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South RICHARD H. BAKER, Louisiana
Dakota HENRY E. BROWN, Jr., South
HARRY E. MITCHELL, Arizona Carolina
JOHN J. HALL, New York JEFF MILLER, Florida
PHIL HARE, Illinois JOHN BOOZMAN, Arkansas
MICHAEL F. DOYLE, Pennsylvania GINNY BROWN-WAITE, Florida
SHELLEY BERKLEY, Nevada MICHAEL R. TURNER, Ohio
JOHN T. SALAZAR, Colorado BRIAN P. BILBRAY, California
CIRO D. RODRIGUEZ, Texas DOUG LAMBORN, Colorado
JOE DONNELLY, Indiana GUS M. BILIRAKIS, Florida
JERRY McNERNEY, California VERN BUCHANAN, Florida
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
Malcom A. Shorter, Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
JOHN J. HALL, New York, Chairman
CIRO D. RODRIGUEZ, Texas DOUG LAMBORN, Colorado, Ranking
PHIL HARE, Illinois MICHAEL R. TURNER, Ohio
SHELLEY BERKLEY, Nevada GUS M. BILIRAKIS, Florida
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
__________
September 25, 2007
Page
Board of Veterans' Appeals Adjudication Process and the Appeals
Management Center.............................................. 1
OPENING STATEMENTS
Chairman John J. Hall............................................ 1
Prepared statement of Chairman Hall.......................... 36
Hon. Doug Lamborn, Ranking Republican Member..................... 3
Prepared statement of Congressman Lamborn.................... 37
WITNESSES
U.S. Department of Veterans Affairs:
Arnold Russo, Director, Appeals Management Center, Veterans
Benefits Administration........................................ 24
Prepared statement of Mr. Russo.............................. 57
Hon. James P. Terry, Chairman, Board of Veterans' Appeals........ 26
Prepared statement of Mr. Terry.............................. 58
______
American Legion, Steve Smithson, Deputy Director, Veterans
Affairs and Rehabilitation Commission.......................... 10
Prepared statement of Mr. Smithson........................... 48
Disabled American Veterans, Adrian Atizado, Assistant National
Legislative Director........................................... 12
Prepared statement of Mr. Atizado............................ 51
National Organization of Veterans Advocates, Inc., Richard Paul
Cohen, President............................................... 6
Prepared statement of Mr. Cohen.............................. 41
National Veterans Legal Services Program, Barton F. Stichman,
Joint Executive Director....................................... 5
Prepared statement of Mr. Stichman........................... 38
Paralyzed Veterans of America, Carl Blake, National Legislative
Director....................................................... 8
Prepared statement of Mr. Blake.............................. 45
Veterans of Foreign Wars of the United States, Eric A. Hilleman,
Deputy Director, National Legislative Service.................. 13
Prepared statement of Mr. Hilleman........................... 55
MATERIAL SUBMITTED FOR THE RECORD
Post Hearing Questions and Responses for the Record:
Hon. Doug Lamborn, Ranking Republican Member, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, to Robert Chisholm, National Organization of
Veterans Advocates, letter dated October 1, 2007 [NO RESPONSE
TO THE QUESTION WAS RECEIVED.]................................. 61
Hon. Doug Lamborn, Ranking Republican Member, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, to Bart Stichman, National Veterans Legal
Services Program, letter dated October 1, 2007 [NO RESPONSE TO
THE QUESTIONS WAS RECEIVED.]................................... 62
Hon. Doug Lamborn, Ranking Republican Member, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, to Carl Blake, National Legislative
Director, Paralyzed Veterans of America, letter dated October
1, 2007........................................................ 63
Hon. Doug Lamborn, Ranking Republican Member, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, to Steve Smithson, Deputy Director, Veterans
Affairs and Rehabilitation Commission, American Legion, letter
dated October 1, 2007.......................................... 64
Hon. Doug Lamborn, Ranking Republican Member, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, to Eric A. Hilleman, Deputy Director,
National Legislative Service, Veterans of Foreign Wars of the
United States, letter dated October 1, 2007.................... 65
Hon. Doug Lamborn, Ranking Republican Member, Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, to Hon. James P. Terry, Chairman, Board of
Veterans' Appeals, U.S. Department of Veterans Affairs, letter
dated October 1, 2007.......................................... 67
BOARD OF VETERANS' APPEALS
ADJUDICATION PROCESS AND THE
APPEALS MANAGEMENT CENTER
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TUESDAY, SEPTEMBER 25, 2007
U.S. House of Representatives,
Subcommittee on Disability Assistance and Memorial
Affairs,
Committee on Veterans' Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:05 p.m., in
Room 334, Cannon House Office Building, Hon. John J. Hall
[Chairman of the Subcommittee on Disability Assistance and
Memorial Affairs] presiding.
Present: Representatives Hall, Hare, Berkley, and Lamborn.
OPENING STATEMENT OF CHAIRMAN HALL
Mr. Hall. Good afternoon. I would like to welcome you all
here to this hearing of the House Committee on Veterans'
Affairs, Subcommittee on Disability Assistance and Memorial
Affairs, and ask if we could all rise for the Pledge of
Allegiance. The flags are located at both ends of the room.
[Pledge of Allegiance.]
Mr. Hall. Thank you. First of all I would like to thank the
witnesses for coming today to appear before the Subcommittee
for our discussion about the Board of Veterans' Appeals (BVA)
and the Appeals Management Center (AMC).
I know the challenges that are presented by the growing
backlog at both the BVA and the AMC are troubling for us all.
Making the administrative appeals process better and quicker
for our veterans is a shared priority and I thank you for
joining me and the Committee in helping to find workable
solutions.
As many of you know, the Board of Veterans' Appeals was
established in 1933 and was designed to provide the veteran
with an opportunity to appeal a decision issued by one of the
57 regional offices (RO) at the VA. No one disputes the
importance of this step in the claims process, but
unfortunately it has become more foe than friend to some of our
veterans who are appealing a regional office decision.
Moreover, it seems to be an unspoken belief held by many
veterans and their advocates that given the variances and RO
level decisions an appeal to the BVA may almost be a necessity.
However, appealing an RO decision presents many challenges to
our veterans. With a current backlog of over 39,000 cases, the
average length of an appeal filed with the BVA is an amazing
761 days. This is after the 240 days a claim spends at the
regional office. This inefficiency is only exceeded by the
outcome of these long waits--a 71 percent denial rate by the
BVA. Also, although the BVA claims a 93 percent accuracy rate,
the U.S. Court of Appeals for Veterans Claims (CAVC) sets aside
or remands over 70 percent of the cases appealed indicating a
much lower accuracy rate in reality. It is clear from reading
the BVA's Fiscal Year 2006 Chairman's Report that these
percentages may not be based on the same statistics.
There are many reasons for the current 39,000 plus backlog
at the Veterans Benefits Administration (VBA). First, as
pointed out by several veterans advocacy organizations in their
testimonies, an entity such as the BVA, which employs a system
of rewards based on the quantity of work outputs rather than
the quality of those work outputs, will soon become an
organization that adopts the principle of quantity over
quality, consciously or unconsciously.
The effort by the BVA to avoid remands is also yielding
mixed results at best. Additionally, unless the U.S. Department
of Veterans Affairs (VA) standardizes the training process for
its raters, this often subjective system will continue to yield
inequitable results. Most claims raters indicate that their
major source of learning was on the job training. As the
preliminary findings of the Veterans' Disability Benefits
Commission indicate, over 50 percent of the raters believe that
they are ill-equipped to perform their jobs. Over 80 percent of
raters, and Veterans Service Organizations (VSO's), believe
that there is too much emphasis placed on speed relative to
accuracy. Also, the Institute for Defense Analysis (IDA), in
its recent report of the analysis of variances in VA disability
compensation, recommends that VA undoubtedly needs to: first
standardize initial and ongoing training for rating
specialists; second, increase oversight of rating decisions;
third, develop and implement metrics to monitor consistency and
adjudication results; and fourth, increase oversight and review
of rating decisions and to improve and expand data collection
and retention.
The IDA Report also indicates that the current STAR Program
(Systematic Technical Accuracy Review) is insufficient to
promote consistency and ratings across regional offices, as
very little action has been taken on any trends found at region
offices. Among other things, I would like to hear what the VBA
intends to do to improve the STAR program as well as an update
on its Expedited Claims Adjudication Initiative.
The increased work load at both the AMC and BVA is not lost
on this Committee. The most recent Fiscal Year 2007 figures
indicate that there are more than 18,300 remands pending at the
AMC and over 39,206 appeals waiting for adjudication at the
BVA.
Moreover, the BVA expects to receive up to 48,000 appeals
through the course of 2007. As such, any increase in
productivity has not been able to keep pace with the increase
of appeals being sent to the BVA. So we are aware of the tall
task that we are facing.
On a separate but related note, I am heartened by the fact
that the Fiscal Year 2008 Budget Resolution allowed, and the
Fiscal Year 2008 Military Construction-VA Appropriations Bill
will provide, funding for 1,000 full-time equivalents (FTEs) to
help with the growing claims backlog. This fact
notwithstanding, I firmly believe that the only way to maximize
VBA employees' effectiveness and lessen the backlog is to give
them the necessary tools and training to provide accurate
ratings.
To be clear, it is not my intention simply to point out the
shortcomings of the BVA or the AMC. I think we should all abide
by the underlying and stated principles of the entire VA
system, which is to provide a non-adversarial system for
awarding our veterans the benefits they have earned. We need to
begin to see ourselves, the VA, Congress, VSO's and advocacy
organizations alike as partners in fulfilling this mission.
I also firmly believe that with the expected surge in
filings by returning Operation Enduring Freedom/Operation Iraqi
Freedom (OEF/OIF) veterans, VA as the gateway for, and the
creator of, the record that forms the basis for appeal, should
amplify its role in improving the benefits claims processing
and adjudication system to get our veterans off the appeals
hamster wheel, a term that we have heard quite often.
I am looking forward to hearing testimony that sets forth
recommendations that are consistent with producing the best
outcomes for our veterans who are appealing RO decisions and
improving the overall system of claims adjudication.
Thank you. And now I would like to recognize Ranking Member
Lamborn for his opening statement.
[The prepared statement of Chairman Hall appears on p. 36.]
OPENING STATEMENT OF HON. DOUG LAMBORN
Mr. Lamborn. Thank you, Mr. Chairman. I thank you for
holding this hearing today on the Board of Veterans' Appeals
and its role in the efficient processing of disability
compensation claims. And I welcome our witnesses, especially
Chairman Terry. And I thank you all for your contributions to
the Veterans Affairs system.
As everyone is aware, the VA's Compensation and Pension
backlog has reached an epidemic and disgraceful level. While I
understand that there are numerous challenges facing the Board
and the Appeals Management Center, both play a significant role
in veterans waiting many months, if not years, for an accurate
rating.
I agree with Mr. Smithson of the American Legion that we
can't just look at the Board in a vacuum. Poor quality work at
the regional office level results in much larger problems later
in the appeals process. We must ensure that rating boards
strive to achieve thoroughness and accuracy along with
efficiency in their work. Doing so is a key step toward
eventual elimination of the backlog.
I do want to commend Chairman Terry for the excellent work
the Board is doing. They are deciding a record number of
appeals this Fiscal Year. While your output has increased, the
number of claims waiting to be reviewed, though, is still too
high. While I agree that Congress needs to adequately staff the
Board and the Appeals Management Center, I don't believe that
hiring more people is the only solution.
I also acknowledge that there is no silver bullet that will
make a significant and immediate impact on the backlog.
However, I do believe that the system needs to be fundamentally
changed. That is why I am anxiously awaiting the findings of
the Disability Commission that reports next month. While
fundamental change is needed, I believe that we can take
immediate, vital action by passing H.R. 3047 which I have
introduced, the Veterans Claim Processing Innovation Act of
2007. H.R. 3047 will bring VA's compensation and pension system
into the 21st century. By increasing accountability and
leveraging technology at the Veterans Benefits Administration,
this bill would improve the accuracy and speed of benefits
claims and I commend it to the attention of my colleagues.
Several of the provisions of H.R. 3047 are recommendations
from our witnesses today and I thank them for their support. I
thank you, Mr. Chairman, for promising to hold a legislative
hearing on H.R. 3047 next month and I hope that you will soon
join two of our colleagues in cosponsoring this bipartisan
bill.
I want to thank the witnesses for their testimony and yield
back.
[The prepared statement of Congressman Lamborn appears on
p. 37.]
Mr. Hall. Thank you, Mr. Lamborn for your thoughtful and
insightful comments. And as you noted, we will be having a
legislative hearing on H.R. 3047 next month. I am looking
forward to that and to hearing testimony from some of our
expert, our usual expert witnesses on that bill among others
that we will be looking at on that day.
I would also like to welcome our panelists who are
testifying today. Joining us on our first panel and if you
could come up as you are called. Mr. Barton Stichman, Joint
Executive Director for the National Veterans Legal Services
Program; Mr. Richard Cohen, President of the National
Organization of Veterans Advocates, Inc. (NOVA); Mr. Carl
Blake, National Legislative Director for Paralyzed Veterans of
America (PVA); Mr. Steve Smithson, Deputy Director of the
Veterans Affairs and Rehabilitation Commission for the American
Legion; Mr. Adrian Atizado, Assistant National Legislative
Director for Disabled American Veterans (DAV); and last but not
least, Mr. Eric A. Hilleman, Deputy Director of the National
Legislative Service for the Veterans of Foreign Wars (VFW).
It is a large and extremely knowledgeable panel. As usual
your comments are entered into the written record, so you can
deviate or shorten them as you wish. We will recognize each of
you for 5 minutes starting with Mr. Stichman.
STATEMENTS OF BARTON F. STICHMAN, JOINT EXECUTIVE DIRECTOR,
NATIONAL VETERANS LEGAL SERVICES PROGRAM; RICHARD PAUL COHEN,
PRESIDENT, NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC.;
CARL BLAKE, NATIONAL LEGISLATIVE DIRECTOR, PARALYZED VETERANS
OF AMERICA; STEVE SMITHSON, DEPUTY DIRECTOR, VETERANS AFFAIRS
AND REHABILITATION COMMISSION, AMERICAN LEGION; ADRIAN ATIZADO,
ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN
VETERANS; AND ERIC A. HILLEMAN, DEPUTY DIRECTOR, NATIONAL
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED
STATES
STATEMENT OF BARTON F. STICHMAN
Mr. Stichman. Thank you. I am very thankful that you
invited us to testify this morning. Before discussing the Board
of Veterans' Appeals, I would like to second the comments that
I have just heard from both the Chairman and Congressman
Lamborn about the fact that the solution to the dysfunctional
VA System lies in large part in reforming the way the regional
offices decide cases and process cases. I think if you had to
concentrate on one of the three tiers of the adjudicatory
process, the regional offices, the Board of Veterans' Appeals,
or the Veterans Court, which reviews Board of Veterans' Appeals
decisions, the regional offices are the most important. And
they handle the majority of all the claims. And the problem is
they are not deciding them accurately in the first instance.
And part of the reason for the problems is the pressure put on
them, on really all levels, to decide cases quickly. So while
we all condemn the backlogs, there is a sliding scale here.
There are two different things one has to weigh. Speed versus
quality. And I worry a little bit when we concentrate only on
the backlog and not on quality, because that is what encourages
this hamster wheel system from continuing by great
concentration on speed and not enough concentration on quality.
With that said, let me turn to my testimony on the Board of
Veterans' Appeals. The most prominent fact when you look at the
Board of Veterans' Appeals to evaluate its performance is the
report card that the Court of Appeals for Veterans Claims
issues each year on BVA decisionmaking. They review and make
decisions on between 1,000 and 2,800 BVA decisions a year. And
over the last 12 years as the Chairman indicated, the over 77
percent of the decisions the Courts reviewed, it has set aside
the Board decision and sent it back the large majority of those
the Court found at least one error that was prejudicial to the
claimant in processing the claim. That is a terrible record.
That would be an ``F'' grade if one were grading from ``A'' to
``F.''
Now to anticipate what Chairman Terry might say about the
77 percent figure. The cases that the Court judges are not
randomly selected. They are self selected by the veterans who
appeal. But it is clear to me and I think it is to the other
Members of this panel that it is not only Board decision--it is
not the Board decisions that are in error or that are the only
ones that are appealed. A lot of veterans with erroneous
decisions don't bother to appeal. They give up. They have been
pursuing their claim for years.
And so while the 77.7 percent figure is not a random
sample, it is definitely evidence of something that is majorly
wrong with the decisionmaking process. In reviewing the
thousands of decisions we have reviewed and Court decisions
analyzing them, there are three significant factors that we
believe exist. One is the Board keeps making the same types of
errors over and over again. The failure to comply with the duty
to assist. The failure to evaluate fairly, the lay evidence in
the record. The failure to explain why positive medical
evidence is rejected by the Board.
Second, it is my understanding that Board management does
not downgrade the Veterans Law Judges (VLJs) for this--for
making these types of errors. And so, by not downgrading their
performance, it actually encourages them to continue in this
vein.
And third, the Board campaign over the last few years to
eliminate what they call unnecessary remands has actually
contributed to the Board's poor performance by encouraging the
Board to make a final decision on a case that should be
remanded. And what happens in that situation is the claimant
often appeals to the Court and the Court overturns it a year or
two later sending it back to the Board to do what the Board
should have done 2 or 3 years earlier.
The solutions that we advocate are twofold. One, the
Congress should require a different selection process for
judges at the BVA. There is a system that most Federal agencies
use. It is the administrative law judge system for selection.
And it is the only system, merit based system of judges in the
United States. And it allows selection of people who may not
come from within the agency and, therefore, may not have
developed the habits that clearly the Veterans Law Judges have
accumulated over the years.
And so I commend to the Committee looking at the
administrative law judge (ALJ) system as a method to reform the
Board and its decisionmaking process. I don't mean to suggest
that there are not talented judges on the Board of Veterans'
Appeals, there are. But it is helpful to get a blend of
experience as we found out at the Veterans Court when you
select judges for that Court to increase the quality of
decisionmaking.
And at least, if Congress doesn't do that, they should
require that the evaluative criteria used by the Board
management to judge, the Veterans Law Judges be made public so
one can see whether they are downgrading the types of errors
that the Court is overturning, because you are not going to see
an improvement unless there are some consequences or better
instruction to the Board Members.
Thank you.
[The prepared statement of Mr. Stichman appears on p. 38.]
Mr. Hall. Thank you, Mr. Stichman. Mr. Cohen, you are now
recognized for 5 minutes.
STATEMENT OF RICHARD PAUL COHEN
Mr. Cohen. Thank you, Chairman Hall and Members of the
Subcommittee. I will agree with the observations that Mr.
Stichman has made and add some of my own in addition.
I believe that the VA needs to make faster decisions and
better decisions. Part of the problem with the decisionmaking
at the regional office and at the Board of Veterans' Appeals is
the condition of the file. I brought a little show and tell
today. This big pile over here is what I would call a small
claims file. If you looked at it you would see that there are
no page numbers. There is no index. There is no way for a
decision review officer at the regional office nor for a
Veterans Law Judge at the BVA to be able to select out a piece
of important evidence in here unless the representative happens
to carry some Post-it notes in his or her pocket and gets hold
of the file and then puts Post-it notes in it.
The file that I am holding in my hand is the file that I
presented to the Veterans Law Judge in Washington, DC, in this
case. These are the only significant papers out of that file,
but still because my client selected a video hearing and we
were in St. Petersburg, there was no way for me to show the
judge where these documents were contained in this file.
If you follow what I am saying the bottom line here is that
the VA must go paperless and must have the documents indexed so
we can tell the people who are doing the decisionmaking where
the important documents are. The reason why this is so
important is as the Committee has recognized, the sheer number
of cases that the VA is dealing with. In the BVA, we have four
teams around the country. Each team has 14 Veterans Law Judges
supported by 60 attorneys who are writing the decisions. These
four teams cover the entire country and some teams cover as
many as 16 States.
I know there was an opinion that just throwing more money
at the problem will not solve the problem. Well, I am here to
tell you that it is impossible for the VA regional offices the
way they are staffed presently and impossible for the BVA the
way it is staffed presently to return prompt and accurate
decisions. They just can't do it. They are trying to keep up
every way they can, but there is a flood of cases coming in. We
know that about 5 percent of all the claims that are filed in
the regional office will end up at the Board of Veterans'
Appeals. We also know that the servicemembers in Iraq and
Afghanistan have sustained injuries to the extent that more
than 10,000 are already injured and will be filing claims. So
we can expect that there are going to be a lot of claims coming
down the line.
And because of that fair share system that the BVA has put
into place to try to move cases along, the attorneys are
expected to write three to five decisions a week. Veterans Law
Judges are expected to sign 15 to 20 cases a week. That is
impossible. And they won't be able to keep up with it.
The Chairman has already said in his 2006 report that it is
going to be unrealistic to assume that they are going to be
able to keep up.
In addition, I would call your attention to the fact that
not only does the Court remand a lot of the cases that come out
of the Board, but on the actual decisions on the merit, on the
merits, the Court only affirms 20 percent of the cases, which
means 80 percent of the cases are wrong. And I attribute that
to the number of cases that the Board has to deal with. Part of
the speed problem, the difficulty of resolving the cases are
what we call unnecessary remands where the Board will remand it
when the evidence is sufficient to make a decision just to
develop the case in order to deny or remand to get additional
information that is not really necessary. The reason why that
is done is there is a production quota. And a remand counts as
much as an actual decision. So there is a motivation to remand
cases unnecessarily.
We could move cases a little faster if the Board would
change its policy to encourage conversations between the
judges, their staff, and the representatives of the veteran.
Might be able to resolve cases without an actual decision. The
Appeals Management Center is just not helpful to veterans in
the opinion of NOVA. All cases end up going there where they
languish for a while and then get bounced out to the regional
office. We would rather see our cases go back to the regional
office for development if it is necessary.
Thank you.
[The prepared statement of Richard Paul Cohen appears on p.
41.]
Mr. Hall. Thank you, Mr. Cohen. And I was saying to Mr.
Lamborn that when we have the hearing in October on his bill,
his information technology bill, that perhaps you could come
back with that stack of paper as a witness.
Moving along, Mr. Blake, you are now recognized for 5
minutes.
STATEMENT OF CARL BLAKE
Mr. Blake. Mr. Chairman, Members of the Subcommittee, on
behalf of PVA I would like to thank you for the opportunity to
testify today on the Board of Veterans' Appeals and the Appeals
Management Center.
PVA appeals representatives play an important role in the
appeals process at both the BVA and the AMC. Our
representatives prefer to resolve claims without the need for
an appeal by educating our members on the benefits provided to
them by law, by obtaining those benefits for those veterans, by
avoiding frivolous claims and appeals and by aiding the VA in
identifying issues and assembling evidence.
Our goal ultimately is to resolve differences with the VA
at the lowest possible level through cooperation with VA's
decisionmakers. As Congress attempts to address concerns
related to the claims backlog specifically as it relates to
what occurs in the appeals process, it is important to
understand factors contributing to the current situation at
BVA.
The BVA anticipates that by the end of Fiscal Year 2007,
the Board will enter approximately 45,000 decisions. Currently,
the average docket date for decisions entered by the Board is
June 2005. Meanwhile, approximately one-third of appeals are
currently remanded. According to the VA's own studies, a
significant number of BVA remands were required because the
agency of original jurisdiction, usually the regional office,
failed to fully and or properly develop or decide the claim in
accordance with existing instructions and directives of the
department. This factor alone should be examined and addressed
sooner rather than later as we believe that no meaningful
reduction in the claims backlog can be achieved without paying
attention to this problem first.
Realizing that the regional offices were doing a poor job
on remands, the BVA began doing its own claims development
without regulations permitting it. The VA then changed the
regulations to allow the practice. The regulations were
subsequently found not valid in the court case, DAV versus The
Secretary of Veterans' Affairs. In response to this decision,
the VA created the Appeals Management Center to handle the
remands in Washington, DC, where they could do the same
evidence development but not compete with new claims and
hopefully resolve these claims faster and better.
The AMC was then staffed and resourced to handle the
historical average number of BVA remands which was about 12,000
per year. As a result of the unanticipated significant increase
in the number of remands well in excess of the 12,000 per year
estimate, the AMC was quickly overwhelmed which then led it to
form three satellite offices located at St. Petersburg,
Florida, Cleveland, Ohio, and Huntington, West Virginia. With
all of these considerations that we have outlined in our
written statement, we would like to make a few recommendations
and attempt to explain their potential impacts.
We believe that first VBA must accelerate the progress
toward an electronic claims records system. As long as VA
continues to use a paper file shipped around the country, the
claims and appeals process will be done in an expensive and
antiquated manner. As demonstrated by the VHA's outstanding
electronic medical record, similar gains and access to records
can be realized in the claims and appeals process.
PVA also believes that centralized training better prepares
rating specialists at all levels. Training of rating
specialists was historically conducted at the local level by a
more senior staff member. The VA now provides this centralized
training at its Veterans Benefits Academy located in Baltimore,
Maryland, and via the VA Intranet.
Furthermore, as we have called for in the ``Independent
Budget'' (IB), Congress should fully fund any VA training
initiatives in the VBA side. Improved and continued centralized
training should help reduce inconsistencies and disparities
between regional offices and should improve consumer
confidence. Another point that the ``Independent Budget'' has
advocated for is significant increases in staffing levels in
the VBA at all levels. If the Fiscal Year 2008 Military
Construction of Veterans' Affairs Appropriations Bill is
enacted prior to the start of the new Fiscal Year on October 1,
a prospect that seems to be getting dimmer by the day.
The VA will be provided much needed funding to add more
than 1,000 new full-time equivalent employees to VBA. However,
it is important to realize that decisions made on appeal
require much greater expertise and often involve more complex
questions of medicine and law. As such, it takes years to train
a competent rating specialist. Trainees should simply not be
conducting appellate review due to the complexity of these
decisions. Increasing staffing today should be seen as an
investment in the future.
Mr. Chairman, Subcommittee Members, again, I would like to
thank you for the opportunity to testify and I would be happy
to answer any questions that you might have.
[The prepared statement of Mr. Blake appears on p. 45.]
Mr. Hall. Thank you, Mr. Blake. Mr. Smithson, you are now
recognized.
STATEMENT OF STEVE SMITHSON
Mr. Smithson. Good afternoon, Mr. Chairman and Members of
the Subcommittee. The American Legion appreciates the
opportunity to appear before you this afternoon to share our
views on the Board of Veterans' Appeals Adjudication Process
and the Appeals Management Center.
There are more than 31,000 appeals currently pending at the
Board of Veterans' Appeals. Since 2004, the BVA has
concentrated much of its efforts on eliminating avoidable
remands in order to issue more final decisions to reduce its
backlog. This effort has resulted in a significant reduction in
remands, but has also resulted in a significant increase in
denials with only a slight increase in allowances.
It is the opinion of the American Legion, based on our
review of American Legion represented appeals denied by the BVA
that in its zeal to avoid remands, the BVA has rendered
erroneous or premature decisions in cases where benefits should
have been granted or the case should have been remanded. In the
past 8 years, the National Veterans Legal Services Program
consultant to the American Legion has appealed approximately
500 American Legion BVA denials to the U.S. Court of Appeals
for Veterans Claims and has won a remand or reversal in over 90
percent of these appeals.
Further, according to the CAVC Web site, the combined
remand plus reversal rate for appeals decided by the Court on
the merits was just over 76 percent. Such a reversal rate--such
a remand and a reversal rate is unacceptable for any
adjudicative system, but an extraordinarily high rate is
especially galling for an adjudicative system that is required
by statute to be so veteran friendly that the benefit of the
doubt is given to the claimant. Clearly, such a high remand and
reversal rate is a direct reflection of substandard BVA
decisions.
The BVA, however, cannot be reviewed in a vacuum. The
Board's work product is a direct reflection of the
adjudications produced by the VA regional offices. Most of the
problems with the BVA can only be corrected if the quality of
adjudications in the VA regional offices is improved. The poor
quality of VA regional office adjudications adversely impacts
the work of the BVA. The American Legion has long maintained
that such poor quality regional office work is a direct result
of VA management placing a higher value on the quantity of
adjudications produced by the VA regional officers rather than
the quality of the work.
This emphasis on production continues to be a driving force
in the VA regional office, often taking priority over such
things as training and quality assurance. Performance standards
of adjudicators and rating specialists are focused on
productivity as measured by work credits known as ``End
Products.'' In short, the ``End Product'' work measurement
system as managed by VA does not encourage regional office
managers to ensure that adjudicators do the right thing for
veterans the first time.
The emphasis on production causes two bad results. First,
because of shoddy regional office work, there are so many cases
for the BVA to remand that the Board pressured to reduce its
remand rate all too often denies claims that should be
remanded. This is reflected by the very high remand reversal
rate at the CAVC. Second, in many instances, the Board has no
choice but to remand prematurely adjudicated claims. The high
BVA remand rate has resulted in a growing backlog at the AMC.
The BVA combined remand rate and reversal rate of 56 percent
for Fiscal Year 2007 through August is arguably a direct
reflection of the greater emphasis placed on the production
over training and quality assurance by the VA regional offices.
In the view of the American Legion, the need for a
substantial change in VBA's work measurement system is long
overdue. A more accurate work measurement system would help to
ensure better service to veterans. Ultimately, this will
require the establishment of a work measurement system that
does not allow work credit to be taken until the decision and
the claim becomes final. Meaning that no further action is
permitted by statute whether because the claimant has failed to
initiate a timely appeal or because the BVA rendered a final
decision.
We are pleased that recently introduced legislation, H.R.
3047 would mandate such overdue changes to VA's work-credit
system. We are hopeful that if enacted, this legislation which
would change the underlying incentive by rewarding quality of
work rather than quantity, will increase the number of accurate
decisions as well as claimant satisfaction, and in doing so
reduce the overall number of appeals.
Moving to the Appeals Management Center. While the AMC is
an admirable attempt by VBA to improve service to veterans, it
does nothing to address the problems underlying the continued
rise in the number of appeals and remands by the VBA. In our
view, the very necessity of the AMCs existence begs the
question, ``Why hasn't VBA mandated the regional offices to
correct their own mistakes?''
Moreover, the AMCs apparent inability to bring its
extremely large backlog under control since its creation in
2003 has been a major concern of the American Legion. The AMC
currently has more than 18,000 remands pending development and
adjudication. In August of this year, the BVA remanded 1,710
cases to the AMC while the AMC only returned 639 remands to the
BVA, leaving the AMC with a deficit of 1,071 cases for the
month.
Moreover, 21 percent of the 13,082 appeals remanded by the
BVA in the first 11 months of Fiscal Year 2007 were prior
remands, as were 30 percent of the appeals allowed by the BVA.
This data tends to reflect a large percentage, 51 percent, of
cases that were not properly developed or adjudicated by the
AMC.
Additionally, in July of this year the AMC started
brokering ready-to-rate cases to designated regional offices
with additional brokering expected to take place each month.
Unfortunately, this is another example of the AMC as it is
currently structured not being able to properly handle its
workload. It is clear that the AMC is underfunded. The Congress
and the VA should now take prompt action to either eliminate
the AMC or to properly fund its work.
In conclusion, the best way to help veterans is to fix the
entire VA Claims Adjudication System. Piecemeal solutions do
not work and should be avoided. The VA work measurement system
should be changed so that the VA regional offices are rewarded
for good work and suffer a penalty with consistent--when
consistent bad decisions are made. Managers, attorneys and
Veterans Law Judges at the BVA should be awarded for prompt
careful work and they should also be penalized when they make
bad decisions.
The AMC should be adequately funded or closed. American
veterans seeking VA disability benefits deserve better
treatment than what they are currently getting from VA.
This concludes my statement, Mr. Chairman. I would be happy
to answer any questions you or Members of the Subcommittee may
have.
[The prepared statement of Mr. Smithson on p. 48.]
Mr. Hall. Thank you, Mr. Smithson. I am sure we will have
some questions. Now we are going to move to Mr. Atizado for 5
minutes.
STATEMENT OF ADRIAN ATIZADO
Mr. Atizado. Yes, sir. Thank you. Mr. Chairman, Ranking
Member Lamborn, Members of the Subcommittee, on behalf of the
1.3 million members of the Disabled American Veterans, I do
thank you for the opportunity to testify at this important
hearing on the Board of Veterans' Appeals and the Adjudication
Process as well as the Appeals Management Center.
And the best evidence for the importance of a fair and
effective appeals process for veterans is a large number of VA
decisions that are overturned on appeal. Experience has shown
that nearly half of these appeals will be resolved by the
regional office that made the decision being appealed without
the necessity for review by the BVA. Of the 39,076 cases in
which there was a BVA decision last year, 19.3 percent were
allowed. Another 32 percent involve some processing omission
that render the claims decision unsustainable, thereby
requiring remand from the Board to the agency of original
jurisdiction.
Together the allowed and remand cases comprise 51.2 percent
of the Board's total decisions last year. This demonstrates not
only the necessity of the appeals process, but also that VA's
appeals process is fulfilling its purpose to ensure veterans
receive the benefits they are due. In any adjudication system,
mistakes are inevitable. An adjudication system as massive as
VA's that claims wrongly decided will be relatively numerous
under the best of circumstances. However, the unusually large
percentage of appeals in which errors are found demonstrates
serious problems in the initial decisionmaking process.
In addition, repeated errors at the field office level
results in multiple remands and multiple Board decisions in far
too many cases. Erroneous or defective decisions result in
several adverse consequences. Erroneous denials deprive large
numbers of veterans the benefits they are rightly due and delay
the delivery of these benefits for protracted periods. Because
erroneous denials necessitates multiple decisions, they add
substantially to the workload at all levels of adjudication.
Greater workloads require greater resources.
If the increased workloads are not matched by increased
resources, quality must yield to quantity as my colleagues have
mentioned. Leading to even higher error rates and a vicious
cycle of increasing inefficiency these result in claims
backlogs that delay the delivery of benefits for all claimants.
In other words, everyone suffers. And though there is room for
improvement at BVA and the AMC, their problems are secondary to
the more critical problems in the initial decision making
process, again a recurring theme on this panel.
To give you an example, VBA management has tolerated for
years problems such as that at the New York City Regional
Office where on average an appeal languishes for over 4 years
before the regional office transfers it to the Board for a
decision. Or the fact that about 50 percent of all remanded
cases last year come from only 20 percent of VA stations
responsible for original decisions. Many of these appellants
are elderly or many of them are very seriously disabled and
they need these benefits in a more timely fashion than that.
With recent increases in the appellate caseloads and no
corresponding increase in staffing, timeliness at BVA and the
AMC is likely to suffer even more. Congress needs to address
BVA's space and staffing more seriously. The Board's current
location continues to be pressed for space due to the large
volume of appeals. And if the request for additional employees
to the Board is provided, space will become critical as
representative organizations must likewise increase their
staff.
The DAV appreciates the Subcommittee's interest in these
issues and would be glad to work with you and your staff to
improve the timeliness and accuracy of claims for veterans
benefits and services.
This concludes by statement, Mr. Chairman. I would be happy
to answer any questions you or other Members may have.
[The prepared statement of Mr. Atizado appears on p. 51.]
Mr. Hall. Thank you, Mr. Atizado. Mr. Hilleman, now you are
recognized for 5 minutes.
STATEMENT OF ERIC A. HILLEMAN
Mr. Hilleman. Thank you, Chairman Hall and Members of the
Subcommittee. On behalf of the 2.4 million members of the
Veterans of Foreign Wars and our auxiliaries, it is my pleasure
to testify before you today on the Board of Veterans' Appeals
Adjudication Process and the Appeals Management Center.
Let me begin by stating that the VFW is committed to an
effective and efficient claims process with a just and
accessible appeals process. We hope to be a partner in seeking
actionable solutions to the challenges that face the VA. All
veteran service organizations have a similar goal, to ensure
America meets her stand and responsibility to the American
veteran for the sacrifices endured in her service.
The VFW believes this agreement does not cease when the
uniform lies folded in a drawer. We must view the Department of
Veterans Affairs Claims Process through the lens of this social
contract. The VFW has long served at no cost to our fellow
veterans to provide benefits counseling, claims development,
outreach, claims review at regional offices, the BVA and the
AMC.
The VFW adds value to the claims adjudication process as a
quality assurance tool and a veterans provider of
representation. The backlog of veterans' claims within the VBA
or excuse me--the VBA is on the rise. The nearly 640,000
ratings and authorization cases are pending. This is 7.4
percent higher than last year and 22\1/2\ percent higher than
2005. The challenges that VBA faces in addressing the mounting
workload are well established. These include the growth of
total claims, every increasing complexity, and the expectations
for an accurate and timely decision.
The contributing factors of the backlog are also well
known. As the backlog of VBA claims swells at every step of the
process, the VA weighs the values of quality versus quantity.
The VA has repeatedly testified before the Congress to the ills
that plague its claim system. Congress has responded with a
much needed increase in funding, yet additional personnel
following decades of inadequate funding and staffing will not
be productive in the near term.
VA has sought to address these problems by creating the
Appeals Management Center here in Washington. The driving idea
behind the AMC was specialization, thus making the AMC a catch
basin at the end of the process to improve its overall quality.
It has yet to realize its original vision despite the committed
and dedicated staff, yet the absence of training and high
turnover will never allow it to live up to its potential.
VBA employees face a long and complex training regimen and
are not easily replaced. We believe the AMC would be well
served by moving its operations to a small or moderate size
city with minimal cost of living and a large university. The
greatest strain on the AMC is constant turnover of employees.
In a smaller community with a thriving university population,
the AMC would be a premier employer offering job security, high
wages, and room for advancement. Currently the AMC is more like
a regional office in a headquarters town. Imagine, if you will,
an office that is losing the top 10 percent of its skilled
workforce yearly to higher paying offices. This is the dynamic
between the AMC and the VA Central Office.
Such a move in the VA is not without precedent. In 2001,
the technical accuracy review STAR Program relocated from
Washington, DC, to Nashville, Tennessee. This move allowed the
VA to attract greater quality and more qualified employees. It
reduced the cost of living for its employees and in cutting
down on commute times, allowed employees to arrive at the
office more refreshed and ready to work.
Reform of the system is necessary through a strong VBA
leadership, congressional support, and VSO involvement policy
reform that keeps the best interest of the veteran at heart are
truly possible.
Thank you for the opportunity to present our views today
before this Subcommittee and I welcome your questions.
[The prepared statement of Mr. Hilleman appears on p. 55.]
Mr. Hall. Thank you, Mr. Hilleman. As you know from the
buzzers going off, we have had votes called on the House Floor.
So if you would be so kind as to wait and have some more of our
delicious ice water. We will--I think these are going to be
quick votes.
Okay. I have another suggestion--okay. We are going to stay
with plan ``A.'' We are going to recess the hearing while we go
cast these three votes and ask you please to stay with us and
we will be back as soon as we can.
[Recess.]
Mr. Hall. Thank you for your patience. The hearing is
called back to order. I will try to get through my questions as
quickly as possible and then depending on who comes back and
when they come back we will have more questions.
I wanted to ask Mr. Stichman about the concept that you
discussed of a merit-based system to pick judges similar to the
ALJ system. Can you give us some more specifics about that? You
know how that might work or in how that differs from the
current method of choosing the adjudicators for the BVA or the
CAVC?
Mr. Stichman. Certainly. That is an established system of
picking Administrative Law Judges that work at various
different agencies. My testimony talks about the methodology
which involves taking a test, written and oral, interview,
etcetera. And it results in a high quality of judiciary among
the Federal agencies. And a major advantage is people from all
different walks of life compete. And to contrast that with the
system we have now, most of the Veterans Law Judges come from
within the VA system and they develop habits that aren't always
healthy. Witness the track record at the veterans court. And so
there are plenty of people knowledgeable in veterans law that
don't work for the VA but they don't become Veterans Law Judges
but they would potentially become judges if we had a system
that was open to everyone to apply.
I was talking to one of my colleagues about an attorney
named Steve Purcell who used to work at the Disabled American
Veterans for many years. An excellent advocate. And finally he
went through the test process to become an Administrative Law
Judge and he is a judge in the Social Security Administration
now. But he was--because of the system, he couldn't really be a
judge at the Board of Veterans' Appeals because of their
tendency to hire people from within. So I think that is a basic
overview of the difference between the systems.
Mr. Hall. Thank you. There will be a follow up by minority
counsel on that question, but first let me just ask Mr. Cohen,
you are suggesting, if I understand you, that we should change
the regulation so that a remand does not count as a decision.
So that to meet quotas, one has to actually make a decision of
yes or no as to the validity of the particular claim?
Mr. Cohen. Yes, Chairman Hall.
Mr. Hall. Boy, that makes too much sense. And I think I
hear, pretty much across the board, the feeling that there is
more staffing needed both at the regional offices and at the
BVA, because the numbers are overwhelming and probably only
going to get more so. Does anybody dissent from that viewpoint?
Just checking. I just, you know, I thought I heard somebody in
the executive branch say that we are spending too much money on
veterans in the last week or two. But I didn't, you know, I
think money does, speaking as a former school board president,
money doesn't take care of all problems, but there are some
problems you need money to take care of.
Mr. Blake, you talked about full funding for training. How
short are we now on that in your view?
Mr. Blake. I don't know that I could necessarily give a
dollar figure on that. One of the things we actually struggled
with, with the Independent Budget, is figuring out how to
really quantify a cost for training, something we are actually
trying to refine to improve the Independent Budget. I know last
year there was some recommended dollars as it relates to
electronics or electronic initiative within VBA that we have
also pushed for funding. I think the priority for us in the
current year was to get the funding for the additional VBA
staff.
Kind of to your point about adequate staffing, I would only
draw your attention to the point that we made, although we
called for more than 1,000 recommended VBA increase in staffing
in the IB, the appropriations bills would provide for that if
they ever get passed. But we have also stated that that doesn't
mean that those new trainees should go directly into BVA or
that level of claims works because it is too complex to have a
trainee stuck in there and the concern that was addressed from
when I had this discussion with some of our appeals
representatives was that if you are going to at that level of
complexity in the claims process you need to have people who
have moved up in the system and understand at least how that
system works.
But it is to your point again about the training. You know,
I could probably try to put together something to better
quantify that but just off the top of my head I don't know that
I could provide a number.
Mr. Hall. Thank you. Mr. Smithson, would you elaborate
briefly on your statement that a more accurate way to measure
work accomplished should be developed?
Mr. Smithson. Well, right now with the end product work
measure system, the adjudicators, the rating specialist they
get credit each time they rate a case. So in the current system
if I file a claim, they rate the claim, they deny the claim, I
submit additional evidence or I file a notice of disagreement
or I question it and they come back and they rate it again,
they get another credit. They keep getting credit for that same
claim.
So in one case, for example, where they erroneously deny it
or prematurely deny it and they have to rate it 2 or 3 times
they get credit each time whereas if they would have rated it
correctly the first time they would have gotten one end product
credit. So the system itself, as it is set up now, there is
really an incentive not to do it right the first time because
they continue to get credit each time they rate that claim. And
that is why we make a recommendation and we support the recent
legislation that has been introduced that would change the work
measurement system to only provide the credit when the claim is
final; either that the veteran does not appeal it within a year
or the Board of Veterans' Appeals makes a final decision.
Mr. Hall. Thank you. Mr. Hilleman, I am struck by the
figures that you had in your written testimony and your oral
testimony also about the backlog being 7.4 percent higher than
2006 and 22\1/2\ percent higher than 2005. It is obvious, with
the returning OEF/OIF vets and Vietnam veterans hitting that
age when things start to develop that may have been lying in
wait, that the challenge is only going to increase.
You made a statement about how the AMC could be the premier
employer or a premier employer in a smaller university town
making it more effective. How do you see that happening?
Mr. Hilleman. Thank you for the question, Mr. Chairman. The
VFW has an idea that the AMC, if it were moved to a smaller
town with a university where you had a high influx of talented
young people seeking an education, you would have a ready pool
of young applicants.
I can speak from my personal experience having gone to a
university in a small town in Northern Utah. The student body
there was about 18,000 students. Some of the premier employers
in that community of about 100,000 people were Best Buy and a
cheese factory. So an organization, such as the VA doing
substantive work, offering career advancement and working from
a government pay scale would be a very, very competitive
employer.
Mr. Hall. That is a good answer.
Mr. Hilleman. Okay.
Mr. Hall. Thank you. And it is complete. Until Members and
Minority counsel return here we will just continue until all
questions have been asked.
Mr. Atizado, the erroneous initial decisions that you spoke
about causing more and more work down the line, obviously
training, better training at the local office level and more
staff at the local office level would seem to help that. Is
there a particular flaw or pattern that you have observed that
you think contributes to those erroneous decisions?
I mean, we have seen in my district a few cases with
individual veterans who have come to our staff and to our
office for help, but I just thought you are seeing a bigger
picture than we are. So is there a particular area or two that
you would pinpoint?
Mr. Atizado. Not really, Mr. Chairman. The whole idea of
getting it right the first time really is varied throughout the
Nation--I was actually trying to recall as that issue came up
where certain States were--veterans in certain States were not
receiving equal or were receiving less than the average
compensation than their counterparts in other States. I was
trying to remember specifically how that issue was dealt with.
But I think when I had inserted that in my testimony it really
does come down to doing it right the first time. Erroneous
decisions are exactly what we are here talking about.
And if----
Mr. Hall. Thank you. I wasn't talking about geographical
areas where, but areas of medicine or areas of psychiatry or
you know a particular kinds of injury or disease or so----
Mr. Atizado. Conditions.
Mr. Hall. Right.
Mr. Atizado. Not that we are aware of, Mr. Chairman.
Mr. Hall. Okay. Thank you very much. That is it for my
time. Minority counsel may have a question to ask on Mr.
Lamborn's behalf. Okay. We will wait for Mr. Lamborn. There he
is now.
And meanwhile we will ask Mr. Hare if he has questions.
Mr. Hare. Thank you, Mr. Chairman. Thanks for holding this
very important hearing today. And I just have two questions for
the entire panel and you might have touched on this but I think
it bears repeating.
The two questions I have are what do you believe are the
most critical interagency steps that the BVA and the AMC could
take to decrease the time it takes to process an appeal, would
be my first question.
And the second one would be, would changing the ``number of
cases per year'' provision in the evaluation of these BVA
judges and attorneys allow for more focus on fully developing
the claims?
I know these are two very long questions and I apologize,
but I am interested to get your perspective on this, because I
just have to tell you by the way, you know, a backlog of 31,000
and that stack that you showed to us, you know, these are
people. I mean this paperwork is paperwork, but what we are
talking about are people that really need these benefits,
desperately need them and going through this process.
I was amazed and I am glad you brought them. It was a very
eye-opening experience for me. And I don't know for the life of
me how when you are doing the video, the teleconference, I mean
I don't even understand why they are not numbering the pages. I
don't how you can possibly process an appeal like that unless
you are a Kreskin or a mind reader.
Mr. Cohen. Well, I think you have hit it on the head. The
initial problem that goes throughout the system is the paper
file that has to be transmitted from one place to another place
and has no index and no pagination. This is probably the only
agency that would dare to try to render decision without a
pagination and indexed record. It makes it exceedingly
difficult on all decisionmakers from the regional office to the
BVA. And the moving of that record takes time. Whereas if it
was an electronic record we wouldn't have that problem with
time.
The other problem that we have in terms of decisionmaking
and consuming a lot of time is if we have needless remands,
unnecessary remands where the case can be decided favorably in
favor of the veteran based on the presumptions that apply in a
veterans favor, yet the case is sent out for another exam in
hopes that the VA might have another doctor who might disagree
with the veterans' doctor or with the favorable evidence. That
consumes a lot of time and ends up with the wrong decision
ultimately that goes up to the Court and comes back down again.
Mr. Hare. I just want to say before the panel answers, I
think it will be a wonderful day when we err on the side of the
veteran and not the Administration.
Mr. Stichman. I agree with what Mr. Cohen said about the
need for electronic claims file. That would be a great help.
With regard to your question about the focus at the Board
on productivity getting cases out, I think that it is too much
of a focus and not enough focus on the quality of
decisionmaking. I would rather see a decision come out slightly
later and be correct than a decision that needs to be appealed
to the Veterans' Court and be incorrect. And I think there is a
general problem on that score.
Mr. Blake. Sir, I would just kind of re-emphasize one point
that I don't think can be overstated and that is that I think
on some level the workload at the BVA could be reduced simply
by ensuring that the work coming from the RO is correct the
first time.
When I discussed this with our appeals representatives,
their concern was that a significant percentage of cases that
come to the Board level should have never even gotten there
because the RO simply wasn't following instructions that the VA
has in black and white or directives that the VA has put out.
And if they would just follow their own instructions and rules
that they are required to follow, a lot of these cases would
never even reached that level and would have been decided
properly from the get go.
So I think that is why I think we have all kind of
emphasized the point that, I mean you don't necessarily fix the
whole problem, but you can at least address a significant
percentage of the problem right away by holding the lowest
level their feet to the fire.
We participated in a task force with a couple of the VSO's
last year for the Ranking Member of the Full Committee, Mr.
Buyer, addressing our concerns about true performance measures
and performance standards as it relates to VBA and particularly
at the RO level. So I think that is where you have to start and
go from there.
Mr. Cohen. I will just add one other thing. And that is the
duty to notify the veteran of evidence that needs to be
submitted in the claim has been looked at by the VA as a
procedural hardship and not as something that really benefits
the veteran. As somebody who has represented veterans since
1992, I can't count the number of times that I started
representing a World War II era veteran or a Korean War veteran
who had a claim pending all those years and when I look at the
file I explain to the veteran what is necessary to win this
case. What additional pieces of evidence the veteran could
submit and win this case. And the veteran said, ``No one ever
told that to me.''
And I put the thing together and I win the case. The duty
to notify is not a mere procedural benefit that a veteran has.
It is the essence of the case. If a veteran is told from the
beginning, ``If you just submit this piece of evidence, you
will win the--we could grant the case.'' And they do, the case
is over. We don't have to go up and down the ladder. That is a
very important benefit that veterans are entitled to, but it
is, still is, interpreted by the VA and by the Court as a mere
procedural safeguard where the VA really doesn't have to
evaluate the evidence that is in and instruct the veteran.
Submit this piece of evidence and we will grant the case.
Mr. Hare. Thank you, Mr. Chairman.
Mr. Hall. Thank you, Mr. Hare. The Chair will now recognize
Ranking Member Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman. Mr. Stichman, I have
a two part question about the Veterans Law Judges. And what
would we do if we replaced them with Administrative Law Judges?
What would we do with the current VLJ's number one, and number
two how long would it take to train people from outside the
system to become proficient so that they are able to render
accurate decisions?
Mr. Stichman. Well, as to the first part, the Veterans Law
Judges I am sure during the process should stay on until you
have people approved as ALJ's. It will have to be a staggering
system. But they should be able to apply through the normal
administrative law judge process of application, examination,
and selection. So they might end up being selected, but they
would be competing with other people from outside the agency.
With regard to the experience of the people who were
selected, I would think that having a background in veterans
law would be an advantage in the selection process. And there
are many people outside the agency that do have veterans law
experience. And while you were out during the voting, I was
telling the Chairman about in answer to his question of one of
the DAV representatives, Steve Purcell who worked as a
representative both at the court level and at the agency level
for a number of years and then he went through the process and
is now a Social Security Administration administrative law
judge. But with the system at present he didn't have the
opportunity to be a Veterans Law Judge. And he would have the
opportunity if we had an open system as used by other agencies.
So I guess that that is a partial answer to the second
part. And it is true that if select people are selected who
don't have veterans law experience there will be a start up
time and that has a certain disadvantage to it. But in the long
run I think it is an advantage that type of person is going
through that competition is going to make better quality
decisions in the long run. And so in the long run, I think, we
are benefited by that system.
Mr. Lamborn. Okay. Thank you. I have no further questions,
Mr. Chairman.
Mr. Hall. Thank you, Mr. Lamborn. I just wanted to quickly
ask before we let this panel go, Mr. Stichman, the VA has an
obligation to assist claimants in developing evidence to
substantiate claims. In your written testimony you stated that
this obligation is frequently unfilled. At what stages of the
process are claimants suffering most from the lack of help?
Mr. Stichman. Really at their regional office. I mean that
is the major problem is you get quick decisionmaking. All the
panelist have talked about it, about it not being accurate. And
a major reason they are prematurely decided is the regional
office didn't get all the evidence needed to make a fair
decision.
And so they make that mistake and let's say deny the claim.
It is appealed up to the Board and then the Board has the
problem when they look at the case they really should send the
case back to develop the evidence that the regional office
should have developed. And because of the pressure to avoid
what they call unnecessary remands too often the Board caves in
and decides the case based on an inadequate record. Denies it,
because the evidence is not in the record. So the claimant has
to appeal to the Veterans' Court which overturns it, sends it
back to the Board of Veterans' Appeals to send it back to the
regional office to get the regional office to get the evidence
they should have gotten 10 years earlier.
So the problem begins with the regional office.
Mr. Hall. Thank you, sir. Mr. Cohen, I was wondering if you
could explain how you arrived at the 71 percent denial rate in
your testimony for the BVA? And in your opinion, what is the
real problem behind this prolonged wait?
Mr. Cohen. I took the numbers from the report of the
Chairman for Fiscal Year 2006 and--okay. It is at page 19. What
I did is I added together the number of cases that were
remands, which were 12,487 with the other--the cases that were
nominated--which were designated as ``other'' which were 945
which comes out to 13,432. I subtracted those from the total
number of cases, which was 39,076 to leave me with 25,644 merit
decisions. I then calculated the percentage of denials over
merit decisions, which comes out to 70.6 percent which I
rounded off to 71.
And the second part of the question I didn't hear. I am
sorry.
Mr. Hall. Oh, okay. Well let me just change the second part
of the question. Thank you for that answer. Is there any reason
why there is such a dramatic, that you can identify, why there
is such a dramatic asymmetrical increase in denials as has been
observed or why that increase would be warranted?
Mr. Cohen. Well I agree with Mr. Stichman that a number of
the cases that are denied should actually have been developed
and they are denied because they are inadequately developed. I
also believe that there is an institutional bias throughout the
VA where the veterans are not given the benefit of the doubt
and the benefit of presumptions that exist in their favor. And
as a result, end up with erroneous denials.
Mr. Hall. Thank you, sir. Mr. Stichman, I think one of your
recommendations was to hire more BVA judges. From your
assessment, how many more judges do you think would be
necessary to start making headway on the backlog without
sacrificing the quality of decisionmaking?
Mr. Stichman. Well I didn't suggest in my testimony more
BVA judges. I suggested a different system for selection, but I
don't oppose what many people have suggested that we fund the
Board better so it can get its job done better. So I am in
support of that.
Mr. Hall. Okay. Thank you. I think I just made a mistake.
That was actually Mr. Cohen's testimony. Sir, I believe you did
recommend more BVA judges. Was that correct?
Mr. Cohen. That is correct.
Mr. Hall. And do you have a number in mind?
Mr. Cohen. Well what I was looking at is if we were to
compare the VA system with the Social Security system, we would
see that in the Social Security system in each region and for
example in the West Virginia region, there are three offices of
judges that handle the cases. There is one in Charlestown,
there is one Morgantown, and people in the northern panhandle
also go up to Pittsburgh.
Each one of those regions has about five judges. And then
sufficient staff to follow through with the decision writing.
If you look at the VA system, what we are looking at is a four
to one ratio of judges to staff, but the number of judges that
handle all these cases is greatly reduced. I would suggest that
for each region that we would need four to five judges.
It would--we would probably triple the number of judges and
staff that we needed in order to adequately make decisions in a
timely and accurate basis.
Mr. Hall. Thank you, Mr. Cohen. Mr. Blake, I wanted to ask
you, you mentioned the high cost of shipping paper claim files
from one site to another as an appeal works its way through the
system. And I just wanted to ask you regarding Mr. Lamborn's
legislation. I don't know if you have had a chance to look at
it yet, but H.R. 3047 addresses this issue of electronic
records. Could you comment on the impact this would have on the
speed and efficiency of the claims processing system?
Mr. Blake. Well, first let me say we haven't actually taken
a position on the legislation and we will be glad to do so with
some detail to our discussion. There are some good points, I
think the legislation we have some concerns and we have
actually talked to staff about it and we will be glad to
address it in more detail with our testimony in the future.
I think in my testimony I make the point as an example of
the VHA's electronic medical record and how that has
streamlined basically the entire healthcare process. And how
the same principles could be applied to the claims process and
expedite a lot things. I mean Mr. Cohen held up a copy of an
appeals file there and knowing that postal rates change
significantly this year and how that has changed. There is a
significant cost related to that. If you just figure that it
doesn't cost anything to send some megabytes over the Internet
or whatever system the VA wants to develop, you would save a
lot of money there. And I think you there has been some
legislation that addresses concerns about timeliness and things
like that. And you significantly reduce a lot of wasted time
that is done simply through shipping as well.
Mr. Hall. Thank you. Of course we will be having a hearing
on that so we will look forward to hearing more from you on the
details of that bill.
I wanted to ask Mr. Smithson, given the issues with
workflow that you cited in your testimony, does the American
Legion believe that veterans would be better served currently
by increasing staffing at the AMC or by doing away with this
entity entirely?
A number of you mentioned, you know, either fund it and
staff it adequately or do away with it. And it sounds to me
like it sort of hasn't yet hit a stride where it is doing what
we expected or hoped that it would do so?
Mr. Smithson. Unfortunately, for the AMC and not all of it
is the AMC's fault. When they opened their doors they were
faced with an extreme backlog of cases that came from the
defunct BVA development unit. So they have been under the gun
ever since they opened their doors.
It is not only the type of work or the amount of work they
have. If you look at the type of decisions that are coming out
of the BVA or are coming out of the AMC for the first 11 months
of this Fiscal Year, 21 percent of the cases that were remanded
by the Board were previous remands, meaning they were already
at the AMC once before. At least once before. Thirty percent of
the cases allowed by the Board of Veterans' Appeals were
previous remands that were again denied by the AMC and sent to
the Board.
So I think we really need to look at the quality of work
that is being done at the AMC. Why are they making these type
of errors and address that. Obviously, more staffing to help
with that would facilitate that, but ultimately I think we need
to look at the quality. And if the VA is not willing to put the
resources in place at the AMC, they need to think of other
options.
Mr. Hall. Thank you. I would like to recognize Mr. Hare
again for another question.
Mr. Hare. Thank you, Mr. Chairman. And I will try to brief
here, because I have to leave for another meeting. But I think
you might have touched upon this, but I am hoping that the
VSO's here can help me out.
The BVA is reporting a 93 percent decision quality rating
and many of the VSO's that have been here, many of the VSO's we
have talked to, are reporting that about 75 percent of the
cases brought before the CAVC are either remanded or reversed.
And I am wondering if you could explain to me, maybe you
already did, but I just want to make sure that I am clear on
this. What is, you know, why is there such a large discrepancy
here and what is causing that, in your opinion?
Mr. Stichman. Well I will take a crack at that. I think the
question is better addressed to Chairman Terry. I don't know
how they came up with the 93 percent accurate figure. My
understanding is that the reason it is so high is they don't
consider errors, some types of errors like duty to assist or
reasons or basis errors made that the Court finds that the
Board has made as rendering the decision inaccurate. I could be
wrong about that. Chairman Terry, I think, is the best person
to answer it.
But it makes very little sense that the Board of Veterans'
Appeals decisions could be 93 percent accurate and to have such
a high inaccuracy finding rate at the Veterans Court. Now the
Veterans Court does review only a small percentage of the
overall Board decisionmaking, that is true. But to believe that
only the erroneous decisions that have errors are appealed to
the Court is not consistent with the decisions I have reviewed
and in talking to veterans who give up.
Mr. Cohen. And I would agree with that. The real test is
the number of affirmations by the Court, that is only 20
percent. That does not indicate an accuracy rate in the 90
percent bracket.
Mr. Hare. I am sorry. What does that 20 percent mean? When
you say that they are affirming----
Mr. Cohen. That only 20 percent of the decisions coming out
of the Board are affirmed by the Court outright. The rest of
the cases are either remanded because of errors committed,
notice is not given, extra development needed, or are reversed.
So only 20 percent of the time does the Court agree with what
the Board has done. And understanding what Mr. Stichman has
said, many of the veterans who get denials from the Board do
not appeal. They just give up. Especially someone with post
traumatic stress disorder who doesn't like the system anyway.
When they get the denial they just throw it away, they get
angry, and they won't do anything further.
Some of them may file new claims. And you have to
understand that the claims that do go to the Court that are
appealed to the Court are not just ones that are taken by
attorneys. Most of the cases that go up to the Court initially
are filed pro se by veterans. They are not filed by attorneys.
So we can't assume that the ones that go up are only the
ones that have errors in them. We have to assume that there
were errors in a lot of them and they just never went up to the
Court.
Mr. Hare. Thank you. Thank you, Mr. Chairman.
Mr. Hall. Thank you, Mr. Hare. I would like to thank all of
our Members of the first panel very much for your testimony. We
will be taking it to heart and trying to incorporate into the
best legislation we can develop. You are now excused. Thank you
for your patience and your generosity with your testimony.
We will now call panel two. Joining us is Mr. Arnold Russo,
the Director of Appeals Management Center of the U.S.
Department of Veterans Affairs. And Mr. James P. Terry, the
chairman of the board of Veterans' Appeals for the U.S.
Department of Veterans Affairs.
Mr. Lamborn. Mr. Chairman. I am going to excuse myself
because I am torn, but I want to also go to the farewell
reception for outgoing Secretary Nicholson. So I am going to
excuse myself, but I am leaving some questions for the record.
And I will be studying the written testimony that the two
witnesses have provided in detail in lieu of hearing them
verbally speak.
Mr. Hall. Mr. Lamborn, you are excused. Say
``congratulations'' and ``good luck'' to Mr. Nicholson for us.
Mr. Lamborn. I will.
Mr. Hall. Mr. Russo, thank you for your patience, and Mr.
Terry. Both. I guess we will start with Mr. Russo. We have your
written statement so you are recognized for 5 minutes.
STATEMENTS OF ARNOLD RUSSO, DIRECTOR, APPEALS MANAGEMENT
CENTER, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF
VETERANS AFFAIRS; AND HON. JAMES P. TERRY, CHAIRMAN, BOARD OF
VETERANS' APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS.
STATEMENT OF ARNOLD RUSSO
Mr. Russo. Good afternoon, Mr. Chairman, Ranking Member. I
appreciate the opportunity to testify today.
The Veterans Benefits Administration and the Board of
Veterans' Appeals have worked closely together to address the
root causes of remands. Our joint initiatives have focused on
increased coordination of data collection, identification of
trends, and training. These joint initiatives have proven to be
very successful.
The remand rate for Fiscal Year 2005 was 43 percent. The
current remand rate has improved dramatically to 34 percent. We
continue to work to identify the root causes of cases being
remanded. There are many reasons why a case may be remanded by
VBA for additional action that are beyond the control of the
regional office that process the case, such as a regulatory
change or a new precedent court decision.
While remands do not necessarily mean that a mistake was
made in the processing of the case, we have focused our
attention on analyzing those cases where development by the
regional office was deficient and the remand could have been
avoided. Deficiencies are identified nationally and by regional
office and are targeted for development of additional guidance
and or increased training.
Additionally, VBA this year added avoidable remand rate to
the performance standards for all regional office directors.
Through the end of August 2007, the Fiscal Year national
avoidable remand rate is under 18 percent or a 6 percent
improvement over last year. To improve the timeliness of remand
processing at the Appeals Management Center, we have added a
technical expert to every development team to ensure that all
the information requested in the remand order was asked for and
obtained or a satisfactory explanation as to why the evidence
could not be obtained is included in the claims folder.
This procedure provides an internal check on our
development practices and ensures consistency throughout the
AMC. The AMC has received assistance in remand processing from
three of VBA's resource centers. This allowed the AMC to
establish a workflow that develops cases in a timely,
efficient, and accurate manner. During Fiscal Year 2003,
regional offices were taking an average of 700 days to complete
a remand. In Fiscal Year 2005, average processing time for a
remand completed at the AMC was 400 days. Currently, the AMC is
averaging 343 days to process a remand.
We continue to strive for further improvement. We have set
a strategic goal of 230 days to complete remands. This goal
represents the minimum time needed to complete a remand given
the notification, evidence collection, and follow up
requirements of the Veterans Claim Assistant Act and other
legal requirements.
Steady improvement also continues as a result of the AMC's
effective working relationships with many of the veteran
service organizations. The VSO's work directly with our
decisionmakers and help reduce administrative waiting time.
When the VSO's are satisfied that a case is ready to be
certified back to the BVA they complete the necessary forms and
assist us in getting the case back to the BVA for a final
determination.
The AMC's progress in improving the quality of remand
processing is demonstrated by the reduction in the number of
cases remanded a second time. Two years ago approximately 35
percent of the cases certified to BVA by the AMC were again
remanded to the AMC. Today, approximately 85 percent of the
cases certified to BVA by the AMC are accepted and finalized.
The AMC remand inventory at the end of Fiscal Year 2006 was
approximately 14,650. Currently the inventory is above 18,300.
One of the reasons for the increased inventory is the increase
in the number of remands received during the Fiscal Year. Last
year, the AMC received 15,000 remands or an average of 1,250
per month. Even with the reduced remand rate, we are this year
receiving an average of 1,417 remands per month.
In addition, because of VBA's increased disability claims
workload, the three resource centers that had been assisting
the AMC were redirected to supporting regional offices with
high workload inventories. To address the remand workload, the
AMC was authorized to increase its staffing level from 87
employees to 105. These new employees have gone through
centralized training and are now receiving training at the AMC.
Many of our new hires will attain journey-level status
toward the end of the Fiscal Year and will then be able to
significantly contribute to remand production. The long-term
impact of our hiring will be that the AMC will become self-
sufficient and will continue to improve in both the timeliness
and accuracy of remand processing.
[The prepared statement of Mr. Russo appears on p. 57.]
Mr. Hall. Thank you very much, sir. Mr. Russo, you spotted
the red light and stopped shorter than you had to. But we will
have a couple of questions for you in a moment. And thank you
for your testimony and for the improvement that you are making
and describing to us, which was certainly good news.
Chairman Terry, your statement is in the record and you are
now recognized for 5 minutes.
STATEMENT OF HON. JAMES P. TERRY
Mr. Terry. Thank you very much, Mr. Chairman. It is a
pleasure to be here. And I thank you for the opportunity to
discuss with you the Board of Veterans' Appeals role in the
process of benefits adjudication.
I would like to say a few words about the VA adjudication
system, which has been described in such glowing terms by the
prior panel. And I would like to do it by starting and looking
at a few numbers. And I think we need to put this system in
perspective. I believe the first panel did not do so.
This prior year, Fiscal Year 2006, the Veterans Benefits
Administration, and they are not here to defend themselves so
let me try, adjudicated approximately 815,000 claims. Eight
hundred and fifteen thousand claims. Less than 5 percent of
those were appealed. And certainly not 95 percent of the
claimants in that system received what they asked for. Five
percent appealed to the Board of Veterans' Appeals.
Of those who appealed to the Board of Veterans' Appeals,
some 41,000, we adjudicated 39,076 claims. Of that number, 9
percent appealed to the Court of Appeals for Veterans Claims.
Nine percent. And as you know, Mr. Chairman, this is the
easiest system in the world to appeal. For example, for VBA the
words, ``I disagree'' or ``I appeal'' on a Notice of
Disagreement is all that is required and a mere two-line Form
Nine is required as each of the gentleman who testified before
well know.
There is no cost to appeal to the Board of Veterans'
Appeals. There is a $50 charge to appeal to the Court of
Appeals for Veterans Claims and it is always waived, at least I
have not seen one time it has been denied if the individual
indicates an inability to pay.
Of those cases that go to the Court of Appeals for Veterans
Claims, 15 percent are appealed or a somewhat higher number
than are appealed to our Board. I think it is important to know
that despite the testimony in the prior panel, 40 percent in
Fiscal Year 2006, of those cases that went to the Court of
Appeals for Veterans Claims were either affirmed or were
dismissed because our decisions were upheld for one reason or
another.
I think we need to put in perspective what has been
testified to and look at the real numbers. We are talking about
91 percent of the people who come to our Board being satisfied,
not appealing to the Court of Appeals of Veterans Claims, 91
percent. Ninety-five percent being satisfied at the regional
office level. And 85 percent at the Court of Appeals of
Veterans Claims and not going forward to the Court of Appeals
for the Federal Circuit.
I have had the opportunity in my 36-year legal career to
serve both as a judge in the military system where I was a
General Court-Martial Judge, and also a judge in the system at
the U.S. Department of the Interior before I came over here.
And in that prior life at Interior, I managed the
Administrative Law Judge system. I would just like to say a
little bit about my observations of this system in which I am
presently engaged, and a system that I saw at Interior as an
example of one in which Administrative Law Judges sat.
We have a very complex body of law. And it requires a great
deal of experience to administer that body of law as a judge.
And I believe that it is important that we all recognize that
someone coming just as a generalist would have a tremendous
learning curve. We presently have a system where the
individuals are screened by senior judges within our system. A
recommendation is made to a panel. An evaluation is made by a
panel of--a second panel to evaluate their talents in each of
the core competencies. They are then interviewed by an
interview panel with outside panelists from other organizations
in every case. They are then recommended to me. I discuss it
with the Secretary. The Secretary goes and talks to the
President and the President gives his approval.
I beg to differ with the good judgment of the individuals
who have testified before, and I know they have testified in
good faith, but at the same time, I think our judges are
comparable with any in the Federal system. When I was in the
Marine Corps and serving as a General Court-Martial Judge, I
thought we had some of the best judges I had ever seen. I can
honestly tell you I think the judges we have on the Board of
Veterans' Appeals are the finest I have ever seen.
[The prepared statement of Hon. Terry appears on p. 58.]
Mr. Hall. Thank you, Mr. Chairman. Since we have such a
small contingent of the Committee here and we won't have
questions from a great number of Members, I want to give you an
opportunity if you would like to talk about the recommendations
that you make in your written testimony.
Would you like to--you have 11 points of ways by which the
Board could continue to improve. You have already spoken about
some of them, but I would like to allow you to elaborate.
Mr. Terry. I would be delighted----
Mr. Hall. Well you have waited so long.
Mr. Terry. Well, certainly, I have put my written statement
in and those cover those issues, but I would be glad to address
anything the Chairman would feel most comfortable with.
We certainly are very proud of the fact that the Secretary
has asked us to spearhead an initiative, which is called the
Expedited Claims Adjudication Initiative. This has been briefed
to the staffs of both the House and Senate Committees of
jurisdiction and to VSO representatives as well. And this will
offer certainly an expedited process to represented claimants
who desire to shorten the time required to process their
claims.
This is going to be formally established when the
regulatory scheme is finally vetted through the Federal
Register. And that process will be set up in four locations for
a period of two years, and it would simply ensure that cases
are not sitting on the shelf waiting for time to expire. And it
would simply offer the veteran the opportunity to move forward
when, in fact, all evidence on any given area has been
presented.
Mr. Hall. Thank you, sir. May I ask Mr. Russo, you
mentioned that the help VSOs have provided to reduce
administrative waiting time for claimants has been significant.
Can you describe your relationship with the VSOs more deeply
and outline what role they play in the appeals process at the
AMC?
Mr. Russo. Sure. Mr. Chairman, I currently have three
members from different service organizations sitting on the
floor with the decisionmakers of the AMC. And when a decision
comes out it is promulgated and given directly to that
representative for review. If that representative has a
question, they have the opportunity to go and speak directly
with the decisionmaker and, if there is a difference of opinion
there, they can certainly work out that difference of opinion
or resolve it. Certainly, if there is a clear mistake made,
typographical error, I have seen all kinds of things that we
are able to resolve just by that open line of communication. We
can clear it up there instead of letting it go through the
process.
Mr. Hall. In developing a remand, how does the work done by
the AMC differ from that done for the same purpose by the ROs?
And can you describe an average remand that is processed by the
AMC?
Mr. Russo. Sure. Mr. Chairman, the work itself is very
similar to that of the regional offices with the one exception
that the remand actually has orders in it telling the VBA folks
what exactly to go and obtain in order to make that claim ready
for a final decision. So what they do is they enumerate a list
of orders that the people on my staff go and get the particular
type of evidence. For example, it might be medical evidence
from particular private doctors. It might be Federal records
from different agencies and ultimately it will probably be an
examination and a medical opinion.
And my staff goes ahead and literally puts a checklist
together enumerating exactly what they are doing to accomplish
each one of those remand orders. When those remand orders are
complete, and only when those remand orders are complete, is it
certified as a ready-to-rate case.
I had mentioned in my oral testimony about a technical
expert on each particular development team. There are cases
that are a little bit more complicated. Those technical experts
are there to assist the other members of those teams in the
more complicated cases. They are also there to review
internally some of the quality of the work. And if they see
mistakes are being made before it is certified as ready-to-
rate--ready for a decision, they go ahead and correct those
errors and make sure that the evidence is properly obtained
before it is sent up for a decision.
Mr. Hall. Thank you. Mr. Russo, with your new hires, do you
believe that the AMC is staffed adequately and has adequate
resources? And when do you think you will be able to meet your
stated long-term goal of self-sufficiency?
Mr. Russo. Yes. I do believe that we are staffed
adequately. I couldn't give you an estimate as to when I would
believe we would make our long-term goal of being self-
sufficient. Everything hinges upon the number of claims that
are being filed each particular year. The number of claims that
are appealed, and a number of remands that we get from the
Board of Veterans' Appeals.
I will tell you that the area that I have concentrated on
in my two plus year tenure as the Director of the Appeals
Management Center is to properly get and gather the evidence so
that a final decision can be made. This was an area that I
thought was deficient in the Appeals Management Center and that
was the area of concentration that I decided we needed to pay
the most attention to. And that is what we have accomplished.
Mr. Hall. Okay. Considering that, what is your best
estimate as to when the backlog of over 18,000 cases can be
reduced?
Mr. Russo. New decisionmakers have been hired. They are
currently being hired. And it is approximately a 2 year,
minimum 2-year training program before they are considered to
be journeymen level. So I estimate most of the decision makers
that we have recently hired would be fully trained and
considered journeymen by third quarter Fiscal Year 2008.
Mr. Hall. Okay. How does the AMC's role in the broader
claims processing system add to or affect the workload of the
BVA and the regional offices?
Mr. Russo. I didn't catch the entire question, Mr.
Chairman.
Mr. Hall. Oh. How does the AMC's role in the broader claims
processing system add to the work of the BVA and the--or does
it in your opinion affect the work of the BVA and the regional
offices?
Mr. Russo. The broader claims load is what you are asking.
I would say it doesn't. The AMC is created to address the
remand workload.
Mr. Hall. Uh huh.
Mr. Russo. So when a remand comes from the Board of
Veterans' Appeals instead of going to the regional offices for
further development, it comes to the central location in
Washington, the Appeals Management Center, and it handles that
workload. The AMC does not handle the regular, first-time
claims that are filed at the regional offices.
Mr. Hall. So it is either neutral or beneficial in terms of
the work that is required of BVA or the regional offices?
Mr. Russo. Yes.
Mr. Hall. Okay. That is--thank you. Chairman Terry, could
you explain, please, the BVA's and the VA's work measurement
system with some detail in terms of the emphasis in terms of
awarding points for quantity or quality. Is more emphasis
placed on quantity because of the great number of cases that
are before us? And if not, why do you think there is such a
belief held by so many veteran stakeholders?
Mr. Terry. I would be delighted to answer that. I think
where our focus is both on quality and quantity, and I take
issue with the view of most veterans do not think that we are
doing a great job. I go around the country every day and I
think that the great majority of veterans you talk to will tell
you that we are doing a good job.
Let me just start with our quantity. First, sir, we asked
each of our attorneys to go through an incredibly intense
training program when they come on board. We are seeking to
hire clerks who have been clerks for Federal judges in nearly
every instance. In fact, our pool right now and the people we
are interviewing--the great majority of them have served as
clerks. We are finding the great people out there and we train
them over a period of approximately 6 months before they go on
production and are rated in terms of the decisions they write.
So it is that initial 6-month intense training program
where they were mentored on a daily basis by a senior attorney
and by a judge who looks at every one of their cases and they
grow and develop expedientially during that period of time. We
start our people at the lowest level in terms of the complexity
of the cases, and by their third year, they are expected to do
most every case that we can find within our inventory.
You have to remember that we have an intense training
program that we have developed in the Board and I have
supported tremendously. Every month we have at least one
training session, normally of 2 hours. We invite the local Bar.
That is our Bar Association from the Court. And we invite
general counsel participants as well and we get good
participation from both.
Those are videotaped and they are made available to our
attorneys as an issue comes up so they can look back at those
training sessions, but we feel that our training is among the
best available in the Federal Government today.
We ask our attorneys to draft between three and four
decisions a week when they are competent and they are certified
by their judge as ready and able to do so. We evaluate every
one of those decisions as it comes out. It is evaluated by the,
first of all, the mentor in the first 6 months and thereafter
by their judge. That case is reviewed and certainly as we look
at those cases by our young attorneys, they are both used as
training tools and certainly as a means by which we can help
the attorney grow in stature and in competency.
We have a quality review program which we also think is a
fine program and this is certainly what we were talking about
before when we talked about the 93 percent error-free rate. And
that rate is designed to show us in reviewing a selected number
of our decisions that there are no substantive or procedural
errors which would have resulted in the case being reversed or
remanded by the Court of Appeals for Veterans Claims. Now there
has been talk of a 71 percent error rate. That is simply not
the case. I have the statistics from last year right here and
certainly as I mentioned to you, 40 percent of the cases last
year were either affirmed or dismissed. There were 29 percent
that were remanded and then there were 18 percent of the total
were reversed, vacated, and remanded.
So I mean, I think you need to take a look very carefully
at the Court's own statistics before you rush to judgment in
that regard. Certainly we are dealing in every case with an
open record and a system which requires a remand if in fact
something is presented after the case is on our docket back to
the RO for a complete review. And that is a problem. It is a
tremendous problem. And we have addressed it before your
Committee previously and certainly it is among the legislative
proposals in addition to the paperless record, which we
strongly support. By the way, on the paperless record you need
to know, sir, that the Court rules right now require a paper
record and until that changes both with the Court of Appeals
for Veterans Claims and the Federal Circuit, that is not going
to change. We think it is a wonderful idea. We join our
colleagues from the first panel. We certainly applaud it. But
until the Court agrees to it and changes their rules of
procedure, that is not going to change.
Mr. Hall. Well we will be resigned to duplication maybe for
some period of time, which might be a good thing in case the
hard drive crashes. But, you know, part of our issue here is
resolving different statistics and different numbers that we
are hearing.
So I wanted to ask you, Mr. Chairman, we heard testimony
today that the denial rate of cases from the BVA on the merits
hovers around 71 percent. Your Fiscal Year 2006 annual report
does not provide a definitive total denial rate.
Mr. Terry. We grant, sir, just like most appellate courts--
we are in the range of between 20 and 23 percent and have been
for the last 7 years. Similarly, if you look at the Court of
Appeals for Veterans Claims, their grant rate last year, that
is reversing us, was about the same. It is at 19 percent. So in
looking at appellate courts and what they do, they are looking
at whether or not the group below, the body below, made an
error.
And I think that when we look at certainly, when you look
at the situation with the Veterans Benefits Administration,
they are deciding 815,000 cases and they are granting a large
number of those cases, but certainly not 95 percent. And so
certainly I think you have to look at the system in the entire
context.
Certainly with the ease in which in our system one can
appeal when you look at only 5 percent of VBA's claimants
seeking redress. And when you look at only 9 percent of those
before our Board with the ease by which they can appeal seeking
redress. And when you look at the number of cases that are
upheld by the Court of Appeals for Veterans Claims, it is
averaging 40 percent last year and this year in terms of those
that are dismissed or those that are affirmed. And then when
you look at the number that are sent back for further
development, not because they are wrong or that we should be
changed, but because either the law has changed, sir. You have
to remember that when the Court of Appeals for Veterans Claims
sees a case from our Board they are seeing it 2 or 3 years down
the road. That is how long it takes for them to get to it. I
would like to say it was sooner, but that is not the case.
Mr. Hall. Right.
Mr. Terry. And the law changes and it is retroactively
applied.
Mr. Hall. Could you tell us if there is a place in your
annual report where we can find what your figure for the BVA's
denial rate is?
Mr. Terry. For the what rate?
Mr. Hall. The BVA's denial rate, what you believe it is.
And is there a location in your annual report where we can find
it?
Mr. Terry. Well certainly you can figure it out based on
the number of cases that are remanded for further development,
which is last year as you know 32 percent. And the number we
granted, which last year was 21 percent. And then there is the
category, I believe of ``others.'' And so for example, we would
have upheld the VBA on the remainder of those cases. We would
have found that they made the right decision. It is not a
denial rate, it is a finding that they have made the proper
decision below.
Mr. Hall. Okay.
Mr. Terry. Of that 5 percent of the people who have
appealed.
Mr. Hall. Okay. In your Chairman's Report you stated that
the BVA has maintained a decision quality at over 93 percent.
We are trying to understand and reconcile with earlier
testimony that the Court of Appeals of Veterans Claims has set
aside, either through remand or reversal, a large majority of
76 percent.
Mr. Terry. Well as I say, I think you need to take a
careful look at their own annual report. I have it right in
front of me and that certainly is not indicative of this
report. So I mean I listened to the prior panel as well, and
you know, when you are trying to present your perspective it is
interesting.
Mr. Hall. Can you explain how your decision quality
percentage is calculated and how we should reconcile these
different numbers?
Mr. Terry. Absolutely. What we do is we look at a certain
number of our cases randomly taken and we basically look and
see whether they were subject to a procedural error which would
of resulted in the case being reversed or remanded. And we
evaluate and basically correct in-house any procedural or
substantive errors before it goes out, but that is the way we
keep a measure of effectiveness and use that as part of our
training program.
Now the U.S. Government Accountability Office (GAO) has
taken a very careful look and reviewed this. We have a report
and would like to share it with you in which they have
applauded our program and said it was actually exemplary. We
would be delighted to share that with you.
[Two GAO reports were supplied to the Committee and will be
retained in the Committee files. The reports are entitled,
``Veterans' Benefits--Quality Assurance for Disability Claims
and Appeals Processing can be Further Improved,'' August 2002,
GAO-02-806; and ``VA Disability Benefits--Board of Veterans'
Appeals Has Made Improvements in Quality Assurance, but
Challenges Remain for VA in Assuring Consistency,'' May 5,
2005, GAO-05-655T, Testimony Before the Subcommittee on
Disability Assistance and Memorial Affairs, Committee on
Veterans' Affairs, House of Representatives by Cynthia A.
Bascetta, Director, Education, Workforce and Income Security.
GAO Report Number GAO-02-806 can be obtained from the GAO
website at http://www.gao.gov/new.items/d02806.pdf, and GAO
Report Number GAO-05-655T at http://www.gao.gov/new.items/
d05655t.pdf.]
Mr. Hall. Thank you. We would appreciate that.
Mr. Terry. Thank you very much. We will do that.
Mr. Hall. And we heard testimony today that as BVA has
increased its focus on productivity there has been a decrease--
a dramatic increase in the denial of claims while approvals
have stayed relatively the same. To what do you attribute this,
if you agree with it, statistically asymmetrical trend?
Mr. Terry. I don't think the denials have remained the same
or have increased by any means. I think we have upheld the
Veterans Benefits Administration to a greater degree as they
have improved the quality of their decisionmaking below. I
think that is a trend which we have seen and we have seen it
too in the sense that our remand rate, as I had mentioned
before, went from 56.8 percent in 2004 down to 32 percent last
year and it is holding at that.
Now clearly the remand rate at the Court of Appeals for
Veterans Claims went down this year too from 33 percent last
year to 29 percent this year. And I think it is important--from
2007 at this point--and I think through August. So I think it
is important that those figures be kept in perspective as well.
I think the entire system benefits and improves as increased
training is provided. One of the things we do, sir, in each of
the 126 travel boards that we send out each year, is the last 2
days we work with the VBA staff, rating staff, and provide our
insights and our training. We find that to be a tremendous
opportunity and I think it really works well. And I think this
has a tremendous affect on their effectiveness.
Mr. Hall. Thank you, sir. I wanted to ask you, given the
fact that you know statistics are one groups' or one persons'
percentages or figures may or may not be as accurate as the
others, but we are still looking at roughly a 2-year period for
a decision to be made by the Board on average.
Mr. Terry. Well you have to remember, sir, that while we
are at July and August 2005 right now, we take more than 12,000
cases a year and move them ahead of the pack, because either
the person is aged, is infirm, has a financial disability of
some kind, or it is a remand case. That goes to the head of the
line.
Mr. Hall. Right.
Mr. Terry. So any----
Mr. Hall. The rest of the question. Excuse me, sir. But the
rest of the question was going to be, what can we in Congress
do to help you, to help the VBA shorten the length of the
appeals process? More people? Legislative mandates?
Mr. Terry. I would love to respond to that, because I think
the prior panel hit on a number of very, very good thoughts.
And we certainly feel that a paperless record is absolutely
mandated. We would welcome your support in that regard and your
support with the Judiciary Committee to make that happen. It is
going to have to come out of that Committee and certainly we
are going to have to gain their support.
We would really greatly appreciate your help in that
regard. We think certainly closing the record as long as the
individual is totally protected. One of the great concerns of
the VSO community has been that they are afraid to close the
record because they are afraid they are going to lose the date,
the claim's original date. We would not object to that
whatsoever. We think that certainly preserving the date on
which the claim was originally filed is a date of record is
absolutely incredibly important. We think that would help
tremendously.
Now with the Hodge case which came down 3 years ago, there
is absolutely no difficulty whatsoever in reopening with any
new and material evidence. All it need do is shed new light or
give a new perspective on the proceeding and if so, the case is
reopened.
I think that the time has come to make these proceedings
more in line with other proceedings in the Federal Government
and move forward while at the same time giving every
opportunity for the veteran to prevail.
Mr. Hall. Thank you. In your testimony you stated that BVA
is currently operating below a required personnel level.
Current Fiscal Year 2008 appropriation levels would provide for
more FTEs for the BVA. Do you feel this increase would be
sufficient to handle the increased input you have been
experiencing and make headway toward eliminating the backlog?
And what would be the ideal staffing size to ensure the
timeliest decision possible for our veterans?
Mr. Terry. Thank you, Mr. Chairman. We have testified
previously and before the full Committee and certainly before
the Office of Management and Budget (OMB) that our staffing
needs to begin to reflect what it was 15 years ago. If you
recall in 1997, sir, we were at 492 FTE's. We are at 444 this
past year up from 434 the year before that.
We have more cases in our docket. We have more complex
cases, multi-issue cases, and certainly 444 is not reflective
of what we need. OMB and the appropriators have agreed to give
us 31 in the 2008 budget. We believe that will occur. We have
likewise urged the Secretary, and he supported this, that we
seek an additional 25 in 2009. Our understanding is that this
is moving forward with our submission as a Department. We would
certainly appreciate any support that your Committee could give
us in that regard. Greatly appreciate it, sir.
Mr. Hall. You can count on it. We are trying.
Mr. Terry. Thank you very much, sir. I greatly appreciate
that.
Mr. Hall. Last, I wanted to ask you what do you think
caused the remand rate to increase so dramatically in Fiscal
Year 2004? And do you think it was a one-time issue or a trend
that may reoccur?
Mr. Terry. There are a great number of reasons, the
greatest of which was the interpretation by the Court of
Appeals for Veterans Claims and the Federal Circuit of the
``Veterans Claims Assistance Act'' and the cases hitting the
Board at that point. Certainly, that we have all recognized
that to be the case. We have overcome that. And the other thing
was that Congress mandated that the Court of Appeals for
Veterans Claims carefully provide a prejudicial error analysis
in our cases. And they were not doing so, they have begun to do
so and that has had a tremendous impact. The new Chief Judge
has been extremely influential in that regard and we greatly
appreciate it.
Mr. Hall. If you have the patience for one more, I was
wondering if you could provide us with the details of the
Expedited Claims Adjudication Initiative. Has it launched? And
if so where and how is it working?
Mr. Terry. The Initiative is a pilot program to be
established in four of our regional offices. It is designed to
ensure that not so much that things be done differently, but
that excess time not required to proceed with a veterans claim
be taken advantage of and the case be moved forward more
quickly.
This would simply ensure that cases are not sitting on the
shelf waiting for time to expire. This is the easiest way I can
explain it. An individual would opt in within 30 days of filing
a claim. He can opt out at any time. If he should opt out by
not making the new time processing requirements in the program
he would simply go back into the regular queue as if he had
been in the queue the entire time.
Mr. Hall. Mr. Chairman, Mr. Russo, thank you both for your
patience and for the work that you do and your service to our
veterans. We have a big problem to solve together, but I am
confident that we can. And that is the spirit that will take
for us to solve it, or at least--it is a work in progress. It
is progress not perfection, I am sure.
We will keep working toward that. And minority counsel will
submit Mr. Lamborn's questions for the record and perhaps you
could respond in writing to them if----
Mr. Terry. Absolutely.
Mr. Hall [continuing]. You would be so kind.
Mr. Terry. And thank you so much for the opportunity.
Mr. Hall. And thank you for your patience and for hanging
in there all afternoon with us. The record will remain open for
5 business days. Now this panel is excused and the Committee is
adjourned.
[Whereupon, at 5:04 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Prepared Statement of Hon. John J. Hall, Chairman,
Subcommittee on Disability Assistance and Memorial Affairs
I would ask everyone to rise for the Pledge of Allegiance--flags
are located in the front and in the rear of the room.
I would first like to thank the witnesses for coming today to
appear before the Subcommittee. I know the challenges presented by the
growing backlog at the Board of Veterans' Appeals and at the AMC are
troubling for us all. Making the administrative appeals process better
and quicker for our veterans is our shared priority and I thank you for
joining me in helping to find workable solutions.
As many of you know, the Board of Veterans' Appeals, established in
1933, is designed to provide the veteran with an opportunity to appeal
a decision issued by one of the 57 Regional Offices (RO) of the VA. No
one disputes the importance of this step in the claims process, but
unfortunately it has become more foe than friend to our veterans
seeking a decision on an RO appeal. Moreover, it seems to be an
unspoken belief held by many veterans and their advocates that given
the variances in RO level decisions, an appeal to the BVA is almost a
necessity.
However, appealing an RO decision presents many challenges for our
veterans. With a current backlog of over 39,000, the average length of
an appeal filed with the BVA is an amazing 761 days. This inefficiency
is only exceeded by the outcome of these long waits--a 71 percent
denial rate by the BVA. Also, although BVA claims a 93 percent accuracy
rate, the Court of Appeals for Veterans' Claims sets aside or remands
over 76 percent of cases appealed, indicating a much lower accuracy
rate in reality. It is clear from reading the BVA's annual report to
Congress that these percentages may not be based on the same
statistics.
There are many reasons for the current 40,000 case backlog at the
VBA. First, as pointed out by several veterans' advocacy organizations
in their testimonies--an entity, such as the BVA, which employs a
system of rewards based on the quantity of work inputs rather than the
quality of those work inputs, will soon become an organization that
adopts the principle of quantity over quality, consciously or
unconsciously.
Additionally, unless the VA standardizes the training process for
its raters, this often subjective system will continue to yield
inequitable results. Most claims raters indicate that their major
source of learning was on-the-job training. As the preliminary findings
of the Disability Benefits Commission indicate, over 50 percent of
raters believe that they are ill-equipped to perform their jobs and
over 80 percent of raters and VSOs believe there is too much emphasis
placed on speed relative to accuracy. Also, as the recent IDA Report
(Analysis of Differences in VA Disability Compensation) on variances in
VA's disability compensation recommended, the VA undoubtedly needs to:
standardize initial/ongoing training for rating
specialists;
increase oversight of rating decisions;
develop and implement metrics to monitor consistency in
adjudication results; and
increase oversight and review of rating decisions and
improve and expand data collection and retention.
And, as pointed out by the IDA Report, the current STAR program is
insufficient to promote consistency in ratings across regional offices,
as very little action is taken on any trends found at regional offices.
Among other things, I want to hear what the VBA intends to do to
improve this program as well as an update on its Expedited Claims
Adjudication Initiative efforts.
The increased workload at both the AMC and the BVA is not lost on
this Committee.
The most recent FY 2007 figures indicate that there are more than
18,300 remands pending at the AMC and about 39,206 appeals awaiting
adjudication at the BVA. Moreover, the BVA expects to receive up to
48,000 appeals through the course of 2007. As such, any increase in
productivity has not been able to keep pace with the increase of claims
being sent to the BVA.
I am heartened by the fact that the FY 2008 Budget Resolution
allowed and the FY 2008 MilCon-VA Appropriations bill will provide
funding for 1,000 FTEs to help with the growing backlog. This fact
notwithstanding, I firmly believe that the only way to maximize VBA
employees' effectiveness in lessening the backlog is to give them the
necessary tools and training to provide accurate ratings.
To be clear, it is not my intention simply to point out the
shortcomings of the BVA or the AMC. I think we should all abide by the
underlying and stated principles of the entire VA system, which is to
provide a non-adversarial system for awarding our veterans the benefits
they have earned. We need to begin to see ourselves, the VA, Congress,
VSOs, and advocacy organizations alike, as partners in fulfilling this
mission.
I also firmly believe that with the expected surge in filings by
returning OIF/OEF veterans, the VA, as the ``gateway'' for and the
creator of the record that forms the basis for appellate review, should
amplify its role in the benefits claims adjudication process to get our
veterans off the appeals ``hamster wheel''.
I hope to hear testimony that will yield recommendations that are
consistent with producing the best outcomes for our veterans appealing
RO decisions.
Prepared Statement of Hon. Doug Lamborn, Ranking Republican Member,
Subcommittee on Disability Assistance and Memorial Affairs
Thank you, Mr. Chairman, for recognizing me. I thank you for
holding this hearing on the Board of Veterans' Appeals and its role in
the efficient processing of disability compensation claims.
I welcome our witnesses, especially Chairman Terry, and thank you
all for your contributions to the veterans' affairs system.
As everyone is aware the VA's compensation and pension backlog has
reached an epic and disgraceful level. While I understand that there
are numerous challenges facing the Board and the appeals management
center, both play a significant role in veterans waiting many months if
not years for an accurate rating.
I agree with Mr. Smithson of the American Legion that we can't just
look at the Board in a vacuum. Poor quality work at the regional office
level results in much larger problems later in the appeals process.
We must ensure that rating boards strive to achieve thoroughness
and accuracy along with efficiency in their work. Doing so is a key
step toward eventual elimination of the backlog.
I do want to commend Chairman Terry for the excellent work the
Board is doing. They are deciding a record number of appeals this
Fiscal Year. While your output has increased the number of claims
waiting to be reviewed is still too high.
While I agree that Congress needs to adequately staff the Board and
the appeals management center, I don't believe that hiring more people
is the only solution. I also acknowledge that there is no silver bullet
that will make a significant and immediate impact on the backlog.
However, I do believe that the system needs to be fundamentally
changed. That is why I am anxiously awaiting the findings of the
disability commission that reports next month.
While fundamental change is needed, I believe that we can take
immediate, vital action by passing H.R. 3047, the Veterans Claims
Processing Innovation Act of 2007.
H.R. 3047 will bring VA's compensation and pension system into the
21st century. By increasing accountability and leveraging technology at
the Veterans Benefits Administration, this bill would improve the
accuracy and speed of benefits claims; and I commend it to the
attention of my colleagues.
Several of the provisions of H.R. 3047 are recommendations from our
witnesses today and I thank them for their support.
I thank you Mr. Chairman for promising to hold a legislative
hearing on H.R. 3047 next month and I hope that you will soon join 24
of our colleagues in cosponsoring this bipartisan bill.
I want to thank the witnesses for their testimony and I yield back.
Prepared Statement of Barton F. Stichman, Joint Executive Director,
National Veterans Legal Services Program
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to present the views of the National
Veterans Legal Services Program (NVLSP) on the adjudication process of
the Board of Veterans' Appeals and the Appeals Management Center.
NVLSP is a nonprofit veterans service organization founded in 1980.
Since its founding, NVLSP has represented over 1,000 claimants before
the Board of Veterans' Appeals and the Court of Appeals for Veterans
Claims (CAVC). NVLSP is one of the four veterans service organizations
that comprise the Veterans Consortium Pro Bono Program, which recruits
and trains volunteer lawyers to represent veterans who have appealed a
Board of Veterans' Appeals decision to the CAVC without a
representative. In addition to its activities with the Pro Bono
Program, NVLSP has trained thousands of veterans service officers and
lawyers in veterans benefits law, and has written educational
publications that thousands of veterans advocates regularly use as
practice tools to assist them in their representation of VA claimants.
I. The Adjudication Process of the Board of Veterans' Appeals
The fact that stands out most prominently when it comes to
assessing the performance of the Board of Veterans' Appeals is the
track record that Board decisions have experienced when an independent
authority has examined the soundness of these decisions. Congress
created an independent authority that regularly performs this
function--the U.S. Court of Appeals for Veterans Claims. Each year, the
Court issues a report card on BVA decisionmaking. This annual report
card comes in the form of between 1,000 and 2,800 separate final
judgments issued by the Court. Each separate final judgment
incorporates an individualized judicial assessment of the quality of a
particular one of the 35,000 to 40,000 decisions that the Board issues
on an annual basis.
For more than a decade, the Court's annual report card of the BVA's
performance has been remarkably consistent. The 12 annual report cards
issued over the last 12 years yields the following startling fact: of
the 16,550 Board decisions that the Court individually assessed over
that period (that is, from FY 1995 to FY 2006), the Court set aside a
whopping 77.7 percent of them (that is, 12,866 individual Board
decisions). In each of these 12,866 cases, the Court set aside the
Board decision and either remanded the claim to the Board for further
proceedings or ordered the Board to award the benefits it had
previously denied. In the overwhelming majority of these 12,866 cases,
the Court took this action because it concluded that the Board decision
contained one or more specific legal errors that prejudiced the rights
of the VA claimant to a proper decision.
By any reasonable measure, the Court's annual report card on the
Board's performance has consistently been an ``F''. But an equally
startling fact is that despite a consistent grade of ``F'' for each of
the last 12 years, no effective action has ever been taken by the
management of the BVA to improve the Board's poor performance. Year
after year, the Court's report card on the Board has reflected the same
failing grade. If the Board had been subject to the ``No Child Left
Behind'' rules that govern our Nation's public schools, it would have
been shut down long ago.
To formulate an effective plan to reform the Board and
significantly improve its performance requires an understanding of the
underlying reasons that the Board has consistently failed in its
primary mission (i.e., to issue decisions on claims for benefits that
comply with the law). Over the last 15 years, NVLSP has reviewed over
10,000 individual Board decisions and thousands of Court assessments of
these decisions. Based on this review, NVLSP has reached three major
conclusions, which are set forth below.
The Board Keeps Making the Same Types of Errors Over and Over Again
The decisions of the Board and the final judgments of the Court
reflect that the Board keeps making the same types of errors over time.
For example, one common error involves the type of explanation the
Board is required to provide in its written decisions. When Congress
enacted the Veterans' Judicial Review Act 1988, it expanded the type of
detail that must be included in a Board decision to enable veterans and
the Court of Appeals for Veterans Claims to understand the basis for
the Board's decision and to facilitate judicial review. See 38 USC
Sec. 7104(d).
The Board has consistently been called to task by the Court for
faulty explanations that violate 38 USC Sec. 7104(d). These violations
fall into several common patterns. One pattern is that the Board often
does not assess or explain why it did not credit positive medical
evidence submitted by the claimant from a private physician, while at
the same time expressly relying on a negative opinion provided by a VA-
employed physician. The problem here is not that the Board decided to
believe the VA physician and disbelieve the private physician. The
problem is that the Board never explained its analysis (if indeed, it
had one) of the private physician's opinion in the first place.
Another common pattern involves lay testimony submitted by the
claimant and other witnesses. Despite the statutory and regulatory
obligation (38 USC Sec. 5107(b) and 38 C.F.R. Sec. 3.102) to give the
veteran the benefit of the doubt in adjudicating a claim for benefits,
in many of the Board decisions that have been set aside by the Court,
the Veterans Law Judge has refused in his or her written decision to
assess, no less credit, this lay testimony. The decisions of the
Federal Circuit and the Court of Appeals for Veterans Claims in
Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), and
Kowalski v. Nicholson 19 Vet. App. 171, 178 (2005) chronicle this
refusal to analyze the validity of lay testimony.
Sometimes the lay testimony that the Board refuses to analyze
involves what happened during the period of military service. The
underlying philosophy in these Board's decisions appears to be: ``If
the event is not specifically reflected in the existing service medical
or personnel records, we don't need to assess the lay testimony''--no
matter what lay testimony has been submitted.
Sometimes this lay testimony involves the symptoms of disability
that the veteran experienced following military service. Despite the
legal obligation to consider lay evidence attesting to the fact that
veteran continuously experienced symptoms of disability from the date
of discharge to the present, the Board often denies the claim on the
unlawful ground that the evidence in the record does not show that the
veteran was continuously provided medical treatment for the disability,
without assessing the lay evidence of continuity of symptomatology.
Another common Board error is to prematurely deny the claim without
ensuring that the record includes the evidence that the agency was
required to obtain to fulfill its obligation to assist the claimant in
developing the evidence necessary to substantiate the claim. The
statutory duty placed by Congress on the VA to provide such assistance
is a fundamental cornerstone of the nonadversarial pro-claimant
adjudicatory process. Unfortunately, the Board often fails to honor
this very important obligation.
Board Management Does Not Downgrade the Performance of a Veterans Law
Judge for Making These Types of Errors
One method of eliminating repetitive types of Board errors would be
if Board management downgraded the performance of Veterans Law Judges
for repeatedly violating deeply embedded legal principles. This has not
been done.
The problem is not that Board management fails to assess the
performance of the Board's Veterans Law Judges. Board management does
conduct such assessments. The problem lies in Board management's
definition of poor performance. As the chairman of the board stated in
his FY 2006 Report, Board management assesses the accuracy of Board
decisionmaking and its assessment is that Board decisions are 93
percent accurate.
There obviously is a major disconnect between the annual report
card prepared by the Court of Appeals for Veterans Claims and the
annual report card prepared by Board management. \1\ How can it be that
year in and year out the Court consistently concludes that well over 50
percent of the Board decisions contain one or more specific legal
errors that prejudiced the rights of the VA claimant to a proper
decision, while at the same time Board management concludes that only 7
percent of Board decision-making is inaccurate?
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\1\ Because the only BVA decisions that the Court assesses are
those appealed to the Court by a VA claimant, the decisions the Court
reviews are self-selected by VA claimants. They do not represent a true
random sample of BVA decisionmaking. Thus, it does not necessarily
follow that the Board's overall error rate is 77.7 percent.
On the other hand, the Court's report cards undoubtedly indicate
that the Board's overall error rate is quite high. In NVLSP's
experience, many of the BVA decisions that are not appealed to the
Court contain the same types of errors as those contained in the
decisions that are appealed to the Court. Some veterans do not appeal
these flawed decisions because after years of pursuing their claim,
they simply give up.
---------------------------------------------------------------------------
NVLSP understands that there is a simple answer to this question.
Board management simply does not count as ``inaccurate'' many of the
types of prejudicial legal errors that have forced the Court to set
aside the Board decision and place the veteran on the well-known
``hamster wheel'' of remands and further administrative proceedings. In
this way, Board management actually promotes, rather than discourages,
these errors of law.
Board Management's Campaign to Avoid ``Unnecessary Remands''
Contributes to the Board's Poor Performance
Another policy adopted by Board management that contributes to the
Board's poor performance is its campaign to avoid ``unnecessary
remands'' from the Board to the regional offices to correct prejudicial
errors made by the regional office in developing the evidentiary
record. If this campaign truly influenced the Board to avoid
``unnecessary'' remands, NVLSP would applaud the effort because it
would help eliminate the ``hamster wheel'' phenomenon that plagues the
VA adjudication process. But the problem is that this campaign has
promoted Board decisions that prematurely deny the claim without a
necessary remand to the regional office to obtain the evidence that the
law required, but the RO failed to obtain, before the case ever reached
the BVA. This unlawful failure to remand actually contributes to the
``hamster wheel'' phenomenon by forcing the claimant to appeal to the
Court, which, after a year or two, sets the Board decision aside with
instructions for the Board to do what it should have d1 years earlier--
send the case back to the RO to obtain additional evidence.
NVLSP's Recommendations
Recommendation 1: Adopt the Long-Standing Process Used and the
Protections Afforded to Administrative Judges Who Adjudicate Disputes
in Other Federal Agencies. NVLSP believes that one of the major steps
that Congress should take to reform the Board and significantly improve
its performance is to change the methodology used to select the
individuals who adjudicate appeals at the Board of Veterans' Appeals.
These individuals, called Veterans Law Judges (VLJs), are usually long-
time VA employees who are promoted to this office from within the
agency. By the time they become a VLJ, they often have adopted the
conventional adjudicatory philosophy that has long held sway at the
VA--an adjudicatory philosophy that underlies the failing grade
assigned by the Court. Moreover, Veterans Law Judges do not enjoy true
judicial independence.
In the Federal administrative judicial system outside the BVA, most
judges are administrative law judge (ALJs). An ALJ, like a VLJ,
presides at an administrative trial-type proceeding to resolve a
dispute between a Federal Government agency and someone affected by a
decision of that agency. ALJs preside in multi-party adjudication as is
the case with the Federal Energy Regulatory Commission or simplified
and less formal procedures as is the case with the Social Security
Administration.
The major difference between Federal ALJs and the VLJs that serve
on the Board of Veterans' Appeals is that ALJs are appointed under the
Administrative Procedure Act 1946 (APA). Their appointments are merit-
based on scores achieved in a comprehensive testing procedure,
including an 4-hour written examination and an oral examination before
a panel that includes an OPM representative, American Bar Association
representative, and a sitting Federal ALJ. Federal ALJs are the only
merit-based judicial corps in the United States.
ALJs retain decisional independence. They are exempt from
performance ratings, evaluation, and bonuses. Agency officials may not
interfere with their decisionmaking and administrative law judges may
be discharged only for good cause based upon a complaint filed by the
agency with the Merit Systems Protections Board established and
determined after an APA hearing on the record before an MSPB ALJ. See
Butz v. Economou, 438 U.S. 478, 514 (1978).
There are many attorneys who have never been employed by the VA who
are familiar with veterans benefits law and who are eminently qualified
to serve as an administrative judge at the Board of Veterans' Appeals.
Moreover, while use of the ALJ process may not always result in the
selection of an individual with a great deal of experience in veterans
benefits law, it should not take a great deal of time for someone
without such experience to become proficient. The experience of the
many judges who have been appointed to the Court of Appeals for
Veterans Claims without prior experience in veterans benefits law
attests to this proposition. NVLSP believes the likelihood of improved
long-term performance of a judge selected through the ALJ process
greatly exceeds whatever loss in short-term productivity may result if
someone who is not steeped in veterans benefits law happens to be
selected.
Recommendation 2: The Criteria Used in, and the Results of the
Evaluation System of VLJs Employed by Board Management Should Be
Publicly Available and Reported to Congress. This recommendation may
not be necessary if Congress adopts the first recommendation. But if
Congress does not embrace the ALJ system for the BVA, it should at
least require Board management to make publicly available the details
of the system it employs for evaluating and rewarding the performance
of VLJs and the results of the evaluation as applied to individual
VLJs. When the evaluation system employed by Board management results
in the conclusion that 93 percent of all Board decisions are accurate,
it is plain that the evaluation system suffers from serious defects.
Oversight of this system requires that it be made publicly available
and reported to Congress.
II. The Adjudication Process of the Appeals Management Center
Turning to the adjudication process of the Appeals Management
Center, the most prominent problem faced by the AMC is lack of adequate
resources. The backlog of remands from the Board of Veterans' Appeals
languishing at the AMC is simply unacceptable. The Achilles Heal of the
entire system is the lack of quality in the initial decisionmaking
process at the VA regional offices. But if one were forced to ignore
the needed reformation of this initial decisionmaking process, then
providing adequate financial resources to the AMC should be a high
legislative priority.
Prepared Statement of Richard Paul Cohen, President,
National Organization of Veterans Advocates, Inc.
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to present the views of the National
Organization of Veterans Advocates, Inc. (``NOVA'') on the adjudication
process at the Department of Veterans Affairs' (``VA'') Board of
Veterans' Appeals (``BVA'') and the Appeals Management Center
(``AMC'').
NOVA is a not-for-profit Sec. 501(c)(6) educational organization
incorporated in 1993 and dedicated to train and assist attorneys and
non-attorney practitioners who represent veterans, surviving spouses,
and dependents before the United States Court of Appeals for Veterans
Claims (``CAVC'' or ``Veterans Court'') and on remand before the VA.
NOVA has written many amicus briefs on behalf of claimants before the
CAVC and the United States Court of Appeals for the Federal Circuit
(``Federal Circuit''). The CAVC recognized NOVA's work on behalf of
veterans when it awarded the Hart T. Mankin Distinguished Service Award
to NOVA in 2000. The positions stated herein have been approved by
NOVA's Board of Directors and represent the shared experiences of
NOVA's members as well as my own fifteen-year experience representing
claimants at all stages of the veterans benefits system from the VA
regional offices to the Board of Veterans' Appeals to the CAVC as well
as before the Federal Circuit.
NOVA's members have little contact with the AMC because veterans'
claims that have attorney representation are instructed to be remanded
directly to the Agency of Original Jurisdiction, which usually is a VA
Regional Office, for further development. However, when an attorney-
represented claim does inadvertently arrive at the AMC, NOVA members
experience considerable hurdles in speaking with AMC personnel
regarding a claim's whereabouts and or status, as well as tremendous
delays in having the claim transferred out of the AMC. As with other
agency-level backlog, providing the AMC with additional staff and
resources would assist greatly in resolving these issues.
With respect to the current operation of the BVA, NOVA submits the
following observations and recommendations for the Subcommittee's
consideration and further action:
OBSERVATION NO. 1:
The Number of Claims on Appeal Challenges BVA's Resources
As of September 1, 2001, the VA reported a backlog of 533,029
veterans' claims for VA benefits and or compensation. See Report of the
Secretary of Veterans Affairs, VA Claims Processing Task Force, October
2001.
For every 100,000 claims submitted for VA benefits and or
compensation, 4,600 claimants will file appeals to the BVA. Department
of Veterans Affairs, ``Strategic Plan for Employees'', July 2007, p.
14. In addition, more than 10,000 U.S. military servicemembers are
already known to have sustained physical and psychological injuries
since the onset of U.S. operations in Afghanistan and Iraq. Testimony
Before the Committee on Veterans' Affairs, U.S. Senate, GAO-05-444T, p.
1. As a result of the on-going wars in Iraq and Afghanistan, the VA can
expect a flood of BVA appeals in the next few years. See ``Strategic
Plan for Employees'', July 2007, p. 3.
OBSERVATION NO. 2:
The Processing Time for BVA Appeals Is Too Slow and Too Often Results
In Erroneous Denials and, or Unnecessary Remands
It takes, on average, over 2 years for a veteran to get a decision
from the BVA on an appeal of a denied claim. This 2-year waiting period
is in addition to the 230 days, on average, that it takes a VA Regional
Office to process and complete development of the initial claim. See
Reports of the chairman of the board of Veterans Appeals, Fiscal Year
2006, p. 16. (www.va.gov/Vetapp/ChairRpt/BVA2006AR.pdf).
Moreover, after waiting over 2 years for a decision, some one-third
of the BVA's decisions from the past few years consist merely of a
remand, providing the veteran with yet more delays, on what has been
characterized as a ride on the ``hamster wheel''. See Stallworth v.
Nicholson, 20 Vet. App. 482, 491 (2006) (Lance J., dissenting); Coburn
v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting).
However, the most unfortunate statistic is that over the past 6 years,
the most common decision veterans have received from the BVA after
waiting over 2 years is a denial of the claim.
----------------------------------------------------------------------------------------------------------------
Days from Fiscal Yr
Fiscal year appeal to Total number of Decision on the Denials Comm'er Report
decision decisions merits \1\ \2\
----------------------------------------------------------------------------------------------------------------
2006 741 39,076 25,644 71% 16,19
----------------------------------------------------------------------------------------------------------------
2005 750 34,175 20,985 62% 12,17
----------------------------------------------------------------------------------------------------------------
2004 724 38,371 16,574 58% 8,12
----------------------------------------------------------------------------------------------------------------
2003 890 31,397 17,160 59% 10,13
----------------------------------------------------------------------------------------------------------------
2002 905 17,231 13,373 64% 11,14
----------------------------------------------------------------------------------------------------------------
2001 648 31,557 15,537 54% 35,44
----------------------------------------------------------------------------------------------------------------
2000 829 34,028 23,041 61% 33,42
----------------------------------------------------------------------------------------------------------------
\1\ Subtracting the remand decisions and other decisions from total decisions leaves only those decisions
resulting in an allowance or denial of benefits, i.e., decisions based on the merits of the claim.
\2\ The numbers in this column refer to pages in the respective Fiscal Year Reports of the chairman of the board
of Veterans Appeals found at www.va.gov/vbs/bva/annual_rpt.htm.
OBSERVATION NO. 3:
BVA Denials Are Rarely Affirmed By The Veterans Court
The statistics provided above demonstrate the growing trend of the
BVA denying veterans' claims. Yet, according to the Veterans Court,
these BVA denials are rarely warranted. This fact is laid bare in
annual reports from the CAVC which show that, in recent years, only an
average of 20 percent of BVA's denials have been affirmed by the Court:
\3\
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\3\ See www.vetapp.uscourts.gov/documents/Annual_Reports.pdf.
----------------------------------------------------------------------------------------------------------------
CAVC non-writ
Fiscal year BVA denials CAVC appeals merits decisions BVA affirmed
----------------------------------------------------------------------------------------------------------------
2006 18,107 3,729 2,079 21%
----------------------------------------------------------------------------------------------------------------
2005 13,032 3,466 1,209 22%
----------------------------------------------------------------------------------------------------------------
2004 9,300 2,234 1,278 12%
----------------------------------------------------------------------------------------------------------------
2003 10,228 2,532 2,090 6%
----------------------------------------------------------------------------------------------------------------
2002 8,606 2,150 818 13%
----------------------------------------------------------------------------------------------------------------
2001 8,514 2,296 2,778 1%
----------------------------------------------------------------------------------------------------------------
2000 14,080 2,442 1,556 33%
----------------------------------------------------------------------------------------------------------------
OBSERVATION NO. 4:
The Structure and Organization of The BVA Has Been In Flux
Over the years, the structure and organization of the BVA has
changed. When it was first created in July 1933, the BVA began as a
centralized office in Washington, DC, and consisted of a Chairman, a
Vice Chairman, and no more than 15 associate members, who were
delegated the authority to render the final decision on appeal for the
Administrator of the Veterans Administration. (Report of the Chairman,
Board of Veterans' Appeals, for Fiscal Year 1995, p. 1, 8). But, by the
sixties, the Board grew to 14 sections of three members each, and by
1984, expanded to 19 three-member sections. All of this expansion was a
result of increased appellate processing time at the BVA (Chairman's
Report, Board of Veterans' Appeals, for Fiscal Year 1995, p. 2).
On November 18, 1988, the Veterans' Judicial Review Act (VJRA),
Pub. L. No. 100-687, established the United States Court of Veterans
Appeals (now officially re-named the United States Court of Appeals for
Veterans Claims), thereby providing an Article I court of review,
separate and distinct from the VA, available to veterans whose claims
are denied by the BVA. The VJRA also created increased demand for a
``travel board'' hearing. Beginning in 1992, and relying on statutory
authority contained in 38 USC Sec. 7102(b), the BVA began holding
hearings both in Washington, DC, and in regional offices utilizing a
single board member but still continued to make decisions by a section
consisting of three board members. (Chairman's Annual Report, Board of
Veterans' Appeals, Fiscal Year 1991, p. 3).
Then, in July 1994, following the passage of the BVA's
Administrative Procedures Improvement Act of 1994, individual board
members, acting alone, began to issue decisions (Pub. L. No. 103-271,
Sec. 6, 108 Stat. 740, 741; Report of the Chairman, Board of Veterans'
Appeals, for Fiscal Year 1995, p. 6, 7). Later, in late-1995, the BVA
was restructured--again--into four decision teams comprised of board
members and staff counsel to review and decide appeals, operating as
semi-autonomous entities with latitude regarding internal operating
procedures, having a workload structured along geographical lines with
responsibility for deciding appeals originating from specific VA
regional offices (Report of the chairman, Board of Veterans' Appeals,
for Fiscal Year 1995, p. 9). As of 2006, the four Decision Teams
consisted of 56 Veterans Law Judges and 240 staff counsel (Report of
the chairman, Board of Veterans' Appeals, for Fiscal Year 2006, p. 2).
OBSERVATION NO. 5:
BVA ``Judges'' Are Not Independent and Their High Number of Unjustified
Remands and Erroneous Denials Are In Part The Result of Demands
For Increased Productivity
As was previously shown, the BVA judges overwhelmingly deny claims
and those denials are affirmed only 20 percent of the time. See
Observations 3 and 4, supra. Nevertheless, the BVA claims a 93 percent
accuracy rate regarding the decisions it issues. See Report of the
Chairman of the Board of Veterans' Appeals, Fiscal Year 2006, p. 3.
www.va.gov/Vetapp/ChairRpt/BVA2006AR.pdf. Moreover, although the 56
Veterans Law Judges issued 39,076 decisions in 2006, the BVA Chairman
is on record as stating that the ability to conduct hearings and decide
appeals on a timely basis ``will present a challenge'' Report of the
chairman of the Board of Veterans' Appeals, Fiscal Year 2006, p. 16.
www.va.gov/Vetapp/ChairRpt/BVA2006AR.pdf).
Whether BVA judges are ``recertified'' or are ``noncertified'' and
have their appointment terminated is dependent upon evaluation
performed by the Chairman and an inhouse panel which considers among
other things legal analysis, timeliness of decisions and productivity
(38 USC Sec. 7101A(c)(1)(A), (2)-(3)). Furthermore, it is not the
accuracy or substantive correctness of the BVA judge's decision that is
evaluated; rather, it is the ``productivity'', i.e., the raw number of
decisions issued by each BVA judge that is scrutinized.
THE BVA SHOULD BE GIVEN MORE STAFF AND FUNDING, SHOULD STREAMLINE THE
MAINTENANCE OF RECORDS, AND SHOULD BE HELD MORE ACCOUNTABLE FOR
ERRONEOUS, QUOTA-DRIVEN DECISIONS
RECOMMENDATION NO. 1:
Hire More BVA Judges
NOVA's first and foremost recommendation is for Congress to provide
sufficient funds for the BVA to hire more judges. Increasing the number
of judges is paramount to alleviating the backlog of appeals awaiting
adjudication at the BVA. There simply is no other solution. BVA
attorneys currently are expected to submit roughly 150 cases per year,
and VLJ's, who have five attorneys writing for them, are expected to
sign about 750 cases per year. That allows for only 2-3 hours per case
as it is. We do not think it is reasonable to assume any large
productivity gains can come from increased work output of the existing
BVA attorneys and judges without quality suffering greatly. The only
answer is to hire more people.
RECOMMENDATION NO. 2:
Encourage Open Communication Between BVA Judges and Veterans' Attorneys
Currently the policy at the Board of Veterans' Appeals is that its
attorneys and VLJ's will have no contact whatsoever with outside
counsel aside from hearings. We believe this policy is
counterproductive. Ironically, the reason most often given for this
policy is that such communications would be ``ex parte.'' This
reasoning is hollow given that there is only one party to a case before
the VA--the veteran. Moreover, by law the proceedings before the
Department of Veterans Affairs are supposed to be non-adversarial. Yet
the BVA has concluded it is appropriate to use courtroom language and
mimic the adversarial process, to the detriment of veterans.
Communication between BVA legal staff and the attorneys and agents
who represent veterans is essential. As described in Observation No. 2,
supra, the BVA oftentimes remands a veteran's appeal because either
evidence needed to decide the claim is missing or due process
procedures were not followed theretofore at the VA regional office.
Open communication would allow agents and attorneys to waive bases for
remand instead of having a case remanded for a procedural issue, which
can easily take a year at the regional office. It would also allow for
an explanation by the BVA as to what evidence is missing from a file
and what evidence would allow for a grant.
It is therefore NOVA's recommendation that the VA establish a
policy of open communication between BVA judges and veterans' agents
and attorneys.
RECOMMENDATION NO. 3:
Give BVA Staffing and Resources To Complete The Technological Updating
of All Veterans' Claims File Folders
The VA has already started the arduous process of transferring its
paper-driven system to a paperless system. We commend them on their
efforts. Completing this process as soon as possible will assist in the
backlog present in the VA system-wide. We therefore respectfully
suggest that Congress provide the VA and the BVA with the additional
funds and staff necessary for this process to be expedited.
With respect to this process, NOVA recommends that contemporaneous
to scanning a veteran's claims file folder, the documents therein
should also be indexed and paginated. At the present time, to locate
and review documents relevant to the merits of an appeal, the BVA judge
must sift through the entire claims file folder, which currently
consists of all documents related to all claims filed at any time for
compensation, educational benefits, or for medical care. These records
are all bound together in one file, typically in reverse chronological
order, but are in no way paginated or indexed. By indexing and
paginating the documents in a veteran's claims file folder, the entire
appeals process at the BVA would be more efficient for the judges, the
veterans, and the veterans' attorneys.
RECOMMENDATION NO. 4:
Have the BVA Change Its Internal Performance Measures So That Remands
Do Not Count The Same As Decisions Made On The Merits
BVA's internal performance review system should be changed. As
noted in Observation No. 5, supra, a BVA judge's performance is
evaluated in large part based on the number of cases decided per year.
Currently, BVA attorneys need to issue 156 decisions per year--or
approximately 3\1/2\ per week when vacations and travel boards are
factored in--in order to pass the evaluation process. This number is
hard to reach, especially when faced with appeals involving multiple
and, or complex issues, and voluminous claim file folders.
Presently, internal accounting regarding a BVA attorney's
production assigns the same point value for remands and decisions (1
point) and assigns a point and a half for cases that encompass both a
decision and a remand. Remands are much less time-consuming and are
easier to write. In this way, BVA's internal performance review system
is skewed such that remands are encouraged over merit-based decisions.
It is NOVA's recommendation that if the BVA changed it system so
that remands would be assigned a lesser point value than a decision on
the merits, far fewer superfluous remands would be issued. This
solution would not affect those cases that require a legitimate remand.
But, for the marginal cases that could be decided either way, such a
change would result in more decisions instead of remands, which would
reduce the VA's system-wide backlog as well as curtail the number of
trips on the proverbial ``hamster-wheel'' for the veteran.
While NOVA respects the integrity of the attorneys and VLJ's who
work at the Board of Veterans' Appeals, it is simply a fact of human
nature that if an organization sets up an incentive structure which
rewards certain behavior, that behavior will increase. This is
especially true in a stressful situation like that at the Board of
Veterans' Appeals where employee production is tracked on a weekly
basis and where bonuses, promotions, and even the ability to take
vacation time all hinge on meeting their demanding production quota.
Prepared Statement of Carl Blake, National Legislative Director,
Paralyzed Veterans of America
Mr. Chairman and Members of the Subcommittee, on behalf of
Paralyzed Veterans of America (PVA), I would like to thank you for the
opportunity to testify today on the Board of Veterans' Appeals (BVA or
Board) process and the Appeals Management Center (AMC). The activities
that occur at this level of the claims process have a significant
impact on the lives of thousands of veterans each year. I will frame my
statement in terms of the role that PVA plays in the appeals process,
our perceptions of that process, and the challenges that face both the
Department of Veterans Affairs (VA) and PVA. I will also make some
recommendations that we believe could improve this process.
As you know, PVA is the only congressionally chartered veterans
service organization that represents veterans with spinal cord injury
or dysfunction. PVA appeals representatives play an important role in
the appeals process at the BVA and the AMC. Our representatives prefer
to resolve claims without the need for an appeal, by educating
paralyzed veterans on the benefits provided by law, to obtain those
benefits for those veterans, to avoid frivolous claims and appeals, and
to aid the VA in identifying issues and assembling evidence. Our goal
is to resolve differences with VA at the lowest possible level through
cooperation with VA's decisionmakers. We aid the VA by identifying
statutory and regulatory authorities that permit VA to grant a claim,
and assist VA in obtaining the evidence the adjudicators need or choose
to seek.
PVA maintains a data base and diary system to ensure that the
claimant and VA perform their responsibilities in the appeals process,
to include the Notice of Disagreement (NOD), Statement of the Case
(SOC), and Substantive Appeal (VA Form 9), in a timely manner. When
deemed appropriate, we encourage appellants to utilize the Decision
Review Officer (DRO) and to utilize the opportunity to appear at a
personal hearing in order to resolve appeals as early as possible. PVA
helps appellants prepare for hearings and appears with appellants at
hearings.
When efforts to resolve disputes are unsuccessful at the VA
regional office (RO), we prepare and submit appeals to the Board of
Veterans' Appeals (BVA) with representation by our experienced staff at
our national Appeals Office collocated with the BVA. PVA perennially
maintains an enviable record of favorable resolutions by BVA with
minimal denials, we believe as a result of comprehensive review and
careful preparation for BVA consideration. In fact, in a recent BVA
decision, the Board stated, ``Here, the veteran is represented by a
highly respected national Veterans Service Organization which is well
versed in veterans' law.'' Approximately 40 percent of appeals
represented by PVA are remanded. When appeals are remanded to the
Appeals Management Center, we continue representation through our
network of National Service Officers who maintain local contact with
the appellant and assist with the submission of further evidence or
other responses.
As Congress attempts to address concerns related to the claims
backlog, specifically as it relates to what occurs in the appeals
process, it is important to understand factors contributing to the
current situation at the BVA. The BVA anticipates that by the end of FY
2007, the Board will enter approximately 45,000 decisions. Currently,
the average docket date for decisions entered by the Board is June
2005. Meanwhile, approximately one third of appeals are currently
remanded. According to the VA's own studies, a significant number of
BVA remands were required because the Agency of Original Jurisdiction--
usually the Regional Office--failed to fully and/or properly develop or
decide the claim in accordance with existing instructions and
directives of the Department. This factor alone should be examined and
addressed sooner rather than later as we believe that no meaningful
reduction in the claims backlog can be achieved without paying
attention to this problem.
We believe that changes introduced into the claims process by
enactment of the Veterans Claims Assistance Act (VCAA) and a series of
precedent interpretations of the Act entered by the U.S. Court of
Appeals for Veterans Claims and the U.S. Court of Appeals for the
Federal Circuit resulted in unanticipated numbers of appeals remanded
by BVA for compliance with the new law and new interpretations, peaking
at a remand rate of more than 50 percent.
The VA realized then that Regional Offices were doing a poor job on
remands, so the BVA began doing its own claims development without
regulations permitting it. The VA then changed the regulations to allow
this practice. The regulations were subsequently found not valid in
Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003). The Court held that the BVA cannot use evidence
it develops unless the veteran waives the right to have the evidence
reviewed by the RO in the first instance. In response to this decision,
the VA created the AMC to handle the remands in Washington, DC, where
they could do the same evidence development but not compete with new
claims, and hopefully resolve these claims faster and better. The AMC
was then staffed and resourced to handle the historical average number
of BVA remands--about 12,000 per year.
As a result of the unanticipated increase in the number of
remands--well in excess of the 12,000 per year estimate--the AMC was
quickly overwhelmed. It then formed three satellite offices located in
St. Petersburg, Florida; Cleveland, Ohio; and Huntington, West
Virginia, to attempt to handle the volume of cases. The AMC inventory
is now at the level originally planned. The VA's data indicates that
AMC review on average is completed in less time than at ROs and results
in higher allowance rates. PVA's experience at the AMC was initially
favorable. We experienced approximately a 30 percent allowance rate on
remand at AMC in the early years. Upon request, we were also able to
solicit the cooperation of AMC employees and resolve especially complex
cases or cases for people with terminal illness or financial hardship.
In addition to and apart from the aforementioned problems
identified at the Agency of Original Jurisdiction, significant customer
service challenges for the VA are presented and always will be
presented in the appeals process. Foremost in the minds of appellants,
PVA and the VA is the goal of having appeals resolved in a timely and
accurate manner. The Veterans Benefits Administration (VBA) and BVA
have been stressing to their employees the need to quickly adjudicate
the claims and appeals in order to reduce the backlog. However, as
shown by BVA's ``average docket,'' appeals remain pending before the
BVA for an average of 2 years. All agree with VA's stated goal of
improving the timeliness of this process. Unfortunately, timeliness
competes with accuracy and quantity competes with quality. Confirmation
that efforts to process appeals faster is winning over efforts to
produce quality decisions is the consistently high error rate found in
BVA decisions on appeal to the U.S. Court of Appeals for Veterans
Claims.
In fairness to the VA, judicial review does require the VA to
conform to new precedential decisions. Appellants at the Court will, as
they must, seek the most favorable interpretation of laws and
regulations presented in their appeals. Such advocacy is obviously
consistent with the statutory scheme controlling the adjudication of
veterans benefit claims.
Merely creating templates to comply with mandates established in
Title 38 USC is not enough and results in necessary remands because the
claimants do not receive the information they need and adjudicators
have a tendency to focus less on the facts and law involved in
individual claims. With VA's data indicating that nearly a third of
remands are required because of the inaccuracies in the initial
determination, and with the recent revelations of the disparities
between the results of adjudications depending on the location of the
RO, the veteran community is reasonably skeptical of an RO decision.
When a veteran receives a letter that contains an inaccurate statement,
whether or not the inaccuracy would have an impact on the decision, the
veteran loses confidence in the ability of the RO to fairly and
accurately decide his or her claim. This lack of confidence has had the
natural effect of increasing the number of appeals filed. Veterans hope
that Washington staff will provide a more accurate decision.
With the emphasis placed on the timeliness of the adjudications in
support of the goal of reducing the backlog of claims, there exists an
environment at VA that favors speed and numbers of decisions over
accuracy. We continue to receive candid reports from VA employees
expressing their desire to perform more careful reviews, who feel
compelled to maintain their production goals for the quantity of work.
The degree of accuracy and consistency impacts the number of appeals.
With the systems used by VA to credit employees for work performed,
there exists an immediate benefit to the employee to maintain a high
quantity of work. Maintaining the quality of work is achieved primarily
through sampling by the Compensation and Pension Service, which does
not share the same impact on the rating process or the employees.
Simply put, there is no substitute for doing the work correctly the
first time.
PVA also has concerns about the piecemeal process of appeals
decisions. With the creation of the AMC, it is not uncommon for a
veteran to have issues simultaneously pending before a Regional Office,
the AMC, the BVA and possibly in the Court. Since VA remains wedded to
a paper claim file for most issues, this requires VA to frequently ship
files around the country as different offices compete over a single
record to adjudicate the issues pending within their own jurisdiction.
Maintaining control of the claim files is challenging and shipping
costs are expensive.
An appeal often presents multiple issues, such as service
connection for multiple disabilities, the evaluation of disabilities
and perhaps an appeal for a resulting inability to maintain employment.
A single BVA decision will often contain a grant of an issue, denial of
an issue and a remand of an issue. In this circumstance, the file will
be transferred to the AMC where the grant of a benefit by the BVA will
be implemented by a rating decision and then the AMC will proceed to
comply with the BVA remand instructions. The decision to have the AMC
act first by implementing the benefit granted by BVA has improved the
timeliness of these awards compared to past procedures. By design, the
AMC does not accept jurisdiction on new appeals, only those matters
remanded by the BVA. Therefore, if a veteran disagrees with a rating
entered by the AMC, a Notice of Disagreement must be filed at the RO
and the new appeal must wait without action until after the return of
the file.
At times, resolution of one issue may affect another. If the BVA
recognizes this potential, it may choose to simultaneously remand
multiples issues. As with all decisions of the Board involving
judgment, the BVA may or may not agree in a given case and may deny one
issue to the detriment of an appellant and decline jurisdiction on a
related issue. Our experience at the BVA leads us to conclude that the
BVA as a body is inconsistent in its response to pleadings that a
decision on a matter before them should be deferred until after a
separate issue is resolved. In the effort to reduce the backlog, we
perceive reluctance on the BVA's part to entertain additional issues
that would introduce further delay.
Ultimately, splitting jurisdiction between several offices that
compete over a single record precludes a comprehensive review and
introduces additional delay. To best represent how complex and
complicated this can be, the following chart (developed by PVA appeals
staff) reflects the situation a single veteran may face as he or she
navigates the appeals process.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
With all of these considerations in mind, we would like to make a
few recommendations and attempt to explain their potential impacts. We
believe that VBA must accelerate the progress toward an electronic
claims record system. As long as VA continues to use a paper file
shipped around the country, the claims and appeals process will be done
in an expensive and antiquated manner. As demonstrated by the Veterans
Health Administration's outstanding electronic medical record, similar
gains in access to records can be realized in the claims and appeals
process, as well as significant cost savings as VBA and the BVA move
toward a ``Virtual VA.'' We urge Congress to accelerate funding of VA's
transition to an electronic claims record.
PVA also believes that centralized training better prepares ratings
specialists at all levels. Training of rating specialists was
historically conducted at the local level by the more senior staff. The
VA now provides centralized training at its Veterans Benefits Academy
located in Baltimore, Maryland, and via the VA intranet. The
Compensation and Pension Service also issues Decision Assessment
Documents (DAD) in response to Court precedent opinions to inform staff
of these decisions. The VA should be lauded for these actions.
Furthermore, as we have called for in The Independent Budget, co-
authored by PVA, AMVETS, Disabled American Veterans, and the Veterans
of Foreign Wars, Congress should fully fund VA's training initiatives.
Improved and continued centralized training should help reduce
inconsistencies and disparities between Regional Offices and should
improve consumer confidence.
The VA and VSOs can also explore opportunities to share resources
for training. Moreover, Congress should authorize VA to provide greater
access for VSOs to VA's training modules. For example, PVA has prepared
a Guide for Special Monthly Compensation that has been adopted for
rater training placed on VA's intranet. The PVA Guide has also been
distributed via BVA Special Monthly Compensation (SMC) training. PVA
staff also interacts with other VSOs at their training events.
Another point that The Independent Budget has advocated for is
significant increases in staffing levels in the VBA at all levels. If
the FY 2008 Military Construction and Veterans' Affairs appropriations
bill is enacted prior to the start of the new Fiscal Year on October 1
(a prospect that seems to be getting dimmer every day), the VA will be
provided much needed funding to add more than 1000 new full-time
equivalent employees (FTEE) to VBA.
However, it is important to realize that decisions made on appeal
require greater expertise and often involve more complex questions of
medicine and law. As such, it takes years to train a competent ratings
specialist. Trainees should simply not be conducting appellate review
due to the complexity of these decisions. Increases in staffing today
should be seen as an investment in the future. In the end, staffing
issues do not have a quick fix.
Mr. Chairman and Subcommittee Members, I would like to thank you
once again for allowing PVA to present its views on the Board of
Veterans' Appeals and the Appeals Management Center. We look forward to
working with you to continue to improve the claims process at all
levels. I would be happy to answer any questions that you might have.
Prepared Statement of Steve Smithson, Deputy Director,
Veterans Affairs and Rehabilitation Commission, American Legion
Mr. Chairman and Members of the Subcommittee:
Thank you for this opportunity to present The American Legion's
views on the Board of Veterans' Appeals (Board or BVA) and the Appeals
Management Center (AMC). The American Legion commends the Subcommittee
for holding a hearing to discuss these two important parts of the
Department of Veterans Affairs (VA) claims adjudication system.
Board of Veterans' Appeals
The BVA is a separate entity within VA. Its responsibility is to
render a final decision on the propriety of regional office decisions.
If the BVA determines that a final decision cannot be made on a case
due to an inadequate record it has the authority to remand the case
back to the agency of original jurisdiction, which now includes the
AMC, for additional development and readjudication.
As of September 8, 2007, there were more than 160,000 cases in
appellate status still pending in VA's 57 regional offices, with more
than 142,000 requiring some type of further adjudicative action. In
September of 2006 there were approximately 9,000 fewer pending appeals.
Based on statistics produced by the VA for the first 11 months of FY
2007, once a substantive appeal has been filed it takes the VA regional
offices an average of 527 days to forward the case to the BVA. In view
of the increasing number of new appeals coming into the system, it is
painfully obvious that the level of dissatisfaction among claimants
seeking VA disability benefits is substantial and growing.
At the end of FY 2006, the BVA had 457 employees, including 56
veteran law judges. Even though the Board's current average processing
time is 274 days, up about 22 days from FY 2006, we do not believe
there is an urgent or overriding need for any substantial increase in
staffing. The amount of time it is taking to process an appeal should
not be the most important factor in decisions about the adequacy of the
Board's staffing. The American Legion is more concerned that the
Board's decisions are fair and proper.
Since 2004 the BVA has concentrated much of its effort on
eliminating avoidable remands. It is clear that the Board would like to
issue more final decisions in order to reduce its backlog. This effort
has resulted in a significant reduction in remands (from 56.9 percent
in FY 2004 to 32 percent in FY 2006). It has also resulted in a
significant increase in denials (from 24.2 percent in FY 2004 to 46.3
percent in FY 2006), with only a slight increase in allowances (17.1
percent in FY 2004 to 19.3 percent in FY 2006). It is the opinion of
The American Legion, based on our review of American Legion represented
appeals denied by the BVA, that in its zeal to avoid remands, the BVA
has rendered erroneous or premature decisions in cases where benefits
should have been granted or where the case should have been remanded.
In the past 8 years the National Veterans Legal Services Program
(NVLSP), consultant to The American Legion, has appealed approximately
500 American Legion BVA denials to the U.S. Court of Appeals for
Veterans Claims (CAVC) and has won a remand or reversal in over 90
percent of these appeals. Further, according to the CAVC Web site, the
combined remand plus reversal rate for appeals decided by the Court on
the merits was just over 76 percent. This rate mirrors the remand plus
reversal rate achieved by the volunteer attorneys who take cases
through the Veterans Consortium Pro Bono Program. A 90 percent (or even
a 76 percent) reversal/remand rate is unacceptable for any adjudicative
system, but this extraordinarily high remand/reversal rate is
especially galling for an adjudicative system that is required by
statute to be so veteran friendly that the benefit of the doubt is
given to claimants. Clearly, such a high remand/reversal rate is a
direct reflection of substandard BVA decisions.
There are more than 31,000 appeals currently pending at the BVA. In
FY 2006, the BVA issued 39,076 decisions (95 percent of these decisions
involved compensation claims). In the first 11 months of FY 2007, the
BVA issued more than 37,000 decisions and, of these, only 41 percent of
the regional offices' decisions have been affirmed or upheld by the
BVA. The Board overturned the regional offices' decisions in 21 percent
of the cases and remanded 35 percent of the appeals. Most remands went
to the AMC for additional development and readjudication. The BVA
remand, allowance and denial rate for the first 11 months of FY 2007 is
similar to that of FY 2006. A logical conclusion that one reaches after
reviewing this data is that the quality of regional office adjudication
continues to be totally unacceptable and the BVA continues to issue
many substandard decisions.
It should be noted that the Board's work product is a direct
reflection of the adjudications produced by the VA regional offices.
The BVA cannot be reviewed in a vacuum. Most of the problems with the
BVA can only be corrected if the quality of adjudications in the VA
regional offices is improved. The poor quality of VA regional office
adjudications adversely impacts the work of the BVA. The American
Legion has long maintained that such poor quality regional office work
is a direct result of VA management placing a higher value on the
quantity of adjudications produced by the VA regional offices rather
than the quality of that work.
This emphasis on production continues to be a driving force in the
VA regional office, often taking priority over such things as training
and quality assurance. Performance standards of adjudicators and rating
specialists are focused on productivity as measured by work credits,
known as ``End Products''. Both veteran service representatives (VSRs)
and rating veteran service representatives (RVSRs) have minimum
national productivity requirements that must be met each day. The
American Legion has also learned that some VA regional offices also set
their own production standards that require VA adjudicators to produce
more final decisions over and above the national requirement.
Unfortunately, the end product work measurement system essentially
pits the interests of the claimant against the needs of VA managers.
The conflict is created because the regional office managers seeking
promotion and bonuses have a vested interest in adjudicating as many
claims as possible in the shortest amount of time. This creates a
built-in incentive to take shortcuts so that the end product can be
taken. The system, in effect, rewards regional offices for the gross
amount of work they report, not whether the work is done accurately or
correctly. Often, the emphasis on production results in many claims
being prematurely adjudicated. These problems are caused (in part) by
not taking the time to adequately develop the claim, not taking the
time to identify all relevant issues and claims, and not taking the
time to order a new VA examination when the previous VA examination is
obviously inadequate. Such errors are often overshadowed by the desire
of VA managers to claim quick end product credit.
The emphasis on production causes two bad results. First, because
of shoddy regional office work there are so many cases for the BVA to
remand that the Board, pressured to reduce its remand rate, all too
often denies claims that should be remanded. This is reflected by the
very high remand/reversal rate at the CAVC. Second, in many instances,
the Board has no choice but to remand prematurely adjudicated claims.
The high BVA remand rate has resulted in a growing backlog at the AMC.
The BVA combined remand and reversal rate (56 percent) through August
of 2007 is arguably a direct reflection of the greater emphasis placed
on production over training and quality assurance by the VA regional
offices.
Veterans Benefits Administration (VBA) management has been
reluctant to establish a rigorous quality assurance program to avoid
exposing the longstanding history of the manipulation of workload data
and policies that contribute to poor quality decisionmaking and the
high volume of appeals. VBA's quality-related problems and the fact
that little or no action is being taken to prevent or discourage the
taking of premature End Products have been longstanding issues for The
American Legion. The current work measurement system, and corresponding
performance standards, are used to promote bureaucratic interests of
regional office management and VBA rather than protecting and advancing
the rights of veterans. The end product work measurement system, as
managed by the VA, does not encourage regional office managers to
ensure that adjudicators do the ``right thing'' for veterans the first
time. For example, denying a claim three or four times in the course of
a year before granting the benefit sought allows for a total of five
end product work credits to be counted for this one case, rather than
promptly granting the benefit and taking only one work credit.
In the view of The American Legion, the need for a substantial
change in VBA's work measurement system is long overdue. A more
accurate work measurement system would help to ensure better service to
veterans. Ultimately, this would require the establishment of a work
measurement system that does not allow work credit to be taken until
the decision in the claim becomes final, meaning that no further action
is permitted by statute whether because the claimant has failed to
initiate a timely appeal or because the BVA rendered a final decision.
We are pleased that recently introduced legislation (H.R. 3047) would
mandate such overdue changes to VA's work credit system. We are hopeful
that, if enacted, this legislation, which would change the underlying
incentive by rewarding quality of work rather than quantity, will
increase the number of accurate decisions as well as claimant
satisfaction and, in doing so, reduce the overall number of appeals.
Appeals Management Center
Frustrated with the large number of underdeveloped appeals received
from the regional offices and the inordinate amount of time it was
taking for remands to be worked upon by the regional offices and
returned to the Board, the BVA established a development unit, pursuant
to a newly written regulation (38 C.F.R. Sec. 19.9(a)(2)) on February
25, 2002. However, as a result of a successful legal challenge to the
establishment of the BVA development unit VBA dismantled the BVA
development unit and the VA then established the AMC on July 23, 2003.
The purpose of the AMC is to provide more expeditious action on remands
and also to relieve the regional offices of the workload burden
associated with remands.
The AMC was established to function as a national regional office
that would handle BVA remands. It has been tasked to undertake the
additional development of evidence specified by the Board and then
readjudicate the claim. Unfortunately the AMC office, with a staff of
94 FTE, has been overwhelmed by an unmanageable backlog of remands
since it first opened its doors. Initially, 16,484 cases were inherited
from the BVA development unit and, currently, the AMC has more than
18,000 remands under development.
While the AMC is an admirable attempt by VBA to improve service to
veterans, it does nothing to address the problems underlying the
continued rise in the number of appeals and remands by the BVA. In our
view, the very necessity of the AMC's existence begs the question--why
hasn't VBA mandated the regional offices to correct their own mistakes?
The AMC is now responsible for correcting errors that the regional
offices were unwilling or unable to do. The AMC, however, has no
authority to prevent the same type of error, which prompted the appeal
and remand, from occurring again. Since production work on new claims
was the highest priority and because the VA regional offices did not
receive work credit for work caused by a BVA remand, many regional
offices placed a low priority in developing and adjudicating BVA
remands. This resulted in many cases remanded by the BVA not being
adjudicated for several years after the case was remanded. Now, because
there is an AMC, there is little incentive for the regional offices to
improve the quality of their adjudications. Most prematurely denied
claims are being remanded to the AMC. Therefore, when a regional office
denies a claim incorrectly or prematurely it does not have to correct
its error because the case will be remanded to the AMC. The American
Legion asks that Congress take action to require that the VA regional
offices are held accountable for the poor quality of initial
decisionmaking.
The AMC's apparent inability to bring its extremely large backlog
under control since its creation in 2003 has been a major concern of
The American Legion. As previously stated, the AMC currently has more
than 18,000 remands pending development and adjudication. In August of
this year, the BVA remanded 1,710 cases to the AMC while the AMC only
returned 639 remands to the BVA, leaving the AMC with a deficit of
1,071 cases for the month. Moreover, 21 percent of the 13,082 appeals
remanded by the BVA in the first 11 months of FY 2007 were prior
remands as were 30 percent of the appeals allowed by the BVA. This data
tends to reflect a large percentage (51 percent) of cases that were not
properly developed or adjudicated by the AMC. Additionally, in July of
this year the AMC started brokering ready-to-rate cases to designated
regional offices. As of September 24, 2007, there were 199 AMC remands
at the Huntington Regional Office and 75 at the Seattle Regional Office
with additional brokering expected to take place each month.
Unfortunately, this is another example of the AMC, as it is currently
structured, not being able to properly handle its workload. It is clear
that the AMC is under funded. The Congress and the VA should now take
prompt action either to eliminate the AMC or to properly fund its work.
Conclusion
The best way to help veteran claimants is to fix the entire VA
claims adjudication system. Piecemeal solutions do not work and should
be avoided. The VA work measurement system should be changed so that VA
regional offices are rewarded for good work and suffer a penalty when
consistent bad decisions are made. Managers, attorneys and the law
judges at the BVA should be rewarded for prompt careful work and they
should also be penalized when they make bad decisions. The AMC should
be adequately funded or closed. American veterans seeking VA disability
benefits deserve better treatment than what they are currently getting
from the VA.
Thank you again, Mr. Chairman, for allowing The American Legion to
present comments on these important matters. As always, The American
Legion welcomes the opportunity to work closely with you and your
colleagues to reach solutions to the problems discussed here today that
are in the best interest of America's veterans and their families.
Prepared Statement of Adrian Atizado,
Assistant National Legislative Director, Disabled American Veterans
Mr. Chairman and Members of the Subcommittee:
On behalf of the 1.3 million members of the Disabled American
Veterans (DAV), I am pleased to present our views on the functioning
and performance of the appellate operations of the United States
Department of Veterans Affairs (VA), as carried out by its Board of
Veterans' Appeals (BVA or Board), and Appeals Management Center (AMC).
The members of the DAV are made up of service-connected disabled
veterans and along with family members in the Auxiliary, have a special
interest in the subject of today's oversight hearing.
The effective administration of appellate review of claims
decisions is essential to discharging VA's mission of caring for our
Nation's veterans. Approximately 96 percent of BVA's workload involves
disability compensation and pension claims. The oversight this
Subcommittee provides is necessary to guarantee veterans receive the
benefits to which they are entitled by law and to impose the
accountability for results and efficiency that our citizens rightfully
demand. Your vigilant oversight of performance, and your watchfulness
of execution of the laws, creates an incentive for better performance
by VA.
The law governing veterans' benefits, as it is generally, is not an
exact science. Adjudication of veterans' claims for VA benefits and
services require the intervention of human judgment. Such judgment is
not infallible, and we therefore view the right to appeal as an
important element of fairness and necessary to safeguard against
injustices that result from human error. Because appellate review is so
essential to ensuring justice in an unavoidably imperfect adjudication
system, the proper functioning of appellate processes is of major
importance, especially where the rights and benefits of our veterans
are involved.
As a statutory board, BVA was created by consolidating and
centralizing the appellate board in Washington, DC, and with a clearer
sense of direction, the problems of decentralization, lack of
uniformity, and the lack of finality were addressed. Since its
inception, BVA has operated separate and independent from the other
elements of VA. While there have been some changes in its configuration
since 1933, BVA has retained its basic concept and mission.
BVA's mission today is still to make the final decision on behalf
of the VA Secretary in claims for benefits. Section 7104 of Title 38,
United States Code, provides: ``All questions in a matter which . . .
is subject to a decision by the Secretary shall be subject to one
review on appeal to the Secretary. Final decisions on such appeals
shall be made by the Board. ''
Although BVA generally makes the final decision in an appeal, the
appellate process begins with the VA field office responsible for the
appealed decision, commonly referred to as the agency of original
jurisdiction. Some appealed decisions are resolved by the agency of
original jurisdiction, which alleviates the need for a final decision
by BVA. Other appeals that have been transferred to BVA may be sent
back, ``remanded,'' to the agency of original jurisdiction to cure some
procedural omission or record defect, or may be favorably resolved. Up
to 50 percent of the appealed cases are resolved by the agencies of
original jurisdiction and never reach the Board. About 75 percent of
the remanded cases are returned to the Board for a final decision.
Appellate Process
A veteran or other claimant initiates an appeal by filing a
``notice of disagreement'' with the agency of original jurisdiction.
The agency of original jurisdiction may then take such additional
development or review action as it deems proper. If such action does
not resolve the disagreement, the agency of original jurisdiction
issues to the appellant a ``statement of the case'' that contains a
summary of the pertinent evidence, a citation of the pertinent legal
authorities along with an explanation of their effect, and an
explanation of the reasons for the decision on each issue. To complete,
or ``perfect,'' the appeal, the appellant must then file with the
agency of original jurisdiction a ``substantive appeal,'' a written
statement specifying the benefit or benefits sought and the basis of
the appellant's belief that he or she is legally entitled to the
benefit or benefits. Upon receipt of the substantive appeal, VA enters
the case on the BVA docket. The BVA docket is a list of cases perfected
for appellate review compiled in chronological order of when the
substantive appeal was received. The Board receives these cases for
review by their order on the docket, although a case may be advanced on
the docket for demonstrated hardship or other good cause. The Board
must afford each appellant an opportunity for a hearing before deciding
his or her appeal. The hearing may be held before the BVA at its
principal office or at a VA facility located within the area served by
appellant's VA regional office. The Board may enter a decision that
orders the granting of appropriate relief, denying relief, or remanding
the appeal for further action by the agency of original jurisdiction.
Claimants for veterans' benefits who believe BVA made factual or
legal errors in deciding their claims may appeal to the United States
Court of Appeals for Veterans Claims (CAVC or Court). The Court may
affirm or reverse the BVA decision, or remand for further action. The
landmark legislation enacted in 1988 that subjected BVA decisions to
the scrutiny of an independent court has necessitated positive reforms
in BVA decisionmaking. Because the Board's decisions must be justified
with an explanation of the factual findings and legal conclusions and
because VA must defend its decisions in court, denials that go against
the weight of the evidence or law have declined. The Board allows and
remands substantially higher percentages of appeals than it did before
judicial review. Prior to judicial review, BVA allowed or remanded only
about 20 percent of appeals. Today that number is approximately 56
percent.
During 2006, 3,729 claimants appealed to CAVC. The Court decided
2,135 cases based on the merits of each case, with a median processing
time from filing of the appeal to disposition of 351 days. Of that
total, 1,365 cases, or 64 percent, were either reversed/vacated and
remanded or remanded because of some substantive error or procedural
defect. This reflects a high error rate among those BVA decisions
appealed to the Court.
The DAV's judicial appeals representatives complain that the Board,
with increasing frequency, is deviating from the Court's orders
reversing and/or remanding cases with specific instructions. The
Board's failure to adhere to the Court's orders is blatantly unlawful.
Claimants have no immediate means to remedy the Board's unlawful
action. For example, in one recent case the Secretary and the veteran
appellant agreed that the Board had committed an error which required
remand for a new Board decision and that the record was sufficient for
the Board to make that decision. The Court granted a joint motion for
remand that directed the Board to decide the appeal based on the
existing record. The Board ignored that order and remanded to the
regional office with an instruction to conduct an examination. The
Court has held that such remand orders by the Board are not final
decisions and therefore not appealable to the Court. The claimant in
that case was consigned to the VA adjudication hamster wheel for an
additional period of months or years. The Board's defiance of the
Court's mandates breaks down the order and discipline imperative in
appellate systems where inferior tribunals are legally bound to adhere
to the orders of superior tribunals.
During Fiscal Year (FY) 2006, 101,240 new notices of disagreement
were received by VA, 46,076 appeals were perfected and added to BVA's
docket, 41,802 cases were physically transferred from agencies of
original jurisdiction to BVA, and the Board decided 39,076 cases. The
Board began 2006 with 37,539 cases pending before it and ended the year
with 40,265 cases pending. Accordingly, the number of new appeals added
to the Board's docket during the year exceeded the number of cases it
decided by 7,000, and the number of new appeals added to the Board's
docket exceeded the number of cases transferred to the Board for a
decision by 4,274. The Board decided 2,726 fewer cases than it received
from field offices.
Processing Time
At the end of FY 2006, there were more than 164,000 cases in field
offices in various stages of the appellate process, including the
21,229 on remand. Some of these appeals will be resolved at the field
office level, but about three-fourths of them will come before the
Board.
During FY 2006, the average time for resolving an appeal, from the
filing of the notice of disagreement to the date of the decision was
971 days. Of this total, 719 days was the average time an appeal was
pending in the field office, from the notice of disagreement to the
transfer of the case to BVA, with an average of 252 days from the date
of receipt of the case at BVA to the date of the decision.
For FY 2006, the average number of days an appeal was pending in
the New York City VA regional office before being transferred to BVA
was 1,513 days, with 1,213 of those days representing the time after
the appeal was perfected and the case was ready for transfer.
Corresponding average days in the St. Petersburg, Florida regional
office was 1,014 and 645; Chicago, Illinois was 865 and 613 days; 755
and 542 days in Cleveland, Ohio; 745 and 478 days in Denver, Colorado;
and 706 and 478 days in Reno, Nevada. For a New York case, the average
total processing time for an appeal at BVA in FY 2006 was 209 for a
total of 1,722 days, almost 4 years and 9 months. Correspondingly, for
a case in St. Petersburg the average total number of days to a BVA
decision was 1,254 or 3 years and 5 months, nearly 3 years in Chicago
(1,093 days) and Denver (1,050 days), and over 2\1/2\ years in
Cleveland (982 days) and Reno (935 days). Eleven VA regional offices
exceeded 1,000 days for the average time an appeal was pending at the
field office (New York; Seattle; San Diego; Los Angeles; Providence;
Houston; Honolulu; Milwaukee; Atlanta; Des Moines; St. Petersburg).
From the start of this Fiscal Year through August 2007, the average
total days for cases pending in the field was 784 days and the average
time at BVA was 274 days. Of course, for those cases remanded, the
total processing time is considerably longer. An additional 140 days
were added to the total processing time of appeals for the time the
case spent at BVA the second time following the remand, and this does
not include the number of days the case was on remand at the field
office.
In FY 2006, an additional 115 days were added to the total
processing time of appeals for the time the case spent at BVA the
second time following the remand not including the number of days the
case was on remand at the field office. During FY 2006, 13,812 cases
were returned to the Board following remands. As noted, there were
21,229 cases on remand at the end of 2006. Of the 39,076 cases decided
by BVA in FY 2006, approximately 37 percent had been previously
remanded. With these long processing times, far too many disabled
veterans die before their appeals can be decided. Three obvious
conclusions follow from these numbers: (1) most of the delay in these
unreasonably protracted appeals processing times is at the field office
level, (2) far too many cases must be remanded more than once, and (3)
multiple remands add substantially to the workload of BVA and the
regional office.
Accuracy
From the beginning of FY 2007 to date, the Board allowed 21 percent
of the 37,120 cases it decided. Approximately 31 percent of those
allowed cases had been previously remanded. In addition, the Board
remanded 35 percent of the cases it reviewed and of those remanded
cases, 21 percent had already been previously remanded, suggesting that
the field office did not fulfill the Board's instructions in the remand
order. Together, the allowed and remanded cases represented 56 percent
of the Board's total case dispositions. In addition to noting the high
percentage of cases remanded multiple times, two conclusions can be
drawn from these percentages: within these appealed cases, (1) agencies
of original jurisdiction have denied many meritorious claims, and (2)
agencies of original jurisdiction have denied many cases without proper
record development.
Space Issues
BVA experiencing some shortage of storage space for claims files
because of the large volume of appeals, the President's FY 2008 budget
request for 468 fulltime employees (FTE) and indications from this
Subcommittee to increase BVA will create a more pronounced need for
additional space. Considerable time and effort was invested toward the
Board's planned relocation to a more suitable office space in FY 2007.
Unfortunately, funding for this necessary move was withdrawn and the
move has been permanently delayed. If future backlogs and delays in
appellate processing are to be avoided, BVA must have the additional
resources necessary to meet this increasing workload.
New Initiative
Timeliness and accuracy of claims for veterans benefits and
services remains a concern for the DAV. A proposed initiative was
announced this year to address the timeliness of claims and appeals.
The Expedited Claims Adjudication (ECA) initiative as proposed would
offer an expedited process to selected claimants by requiring a waiver
of certain time periods normally afforded in the claims and appeals
process. While we agree that the timely processing of all claims and
appeals must be improved, this initiative is only one method to achieve
the goals it has outlined. We must remain cautious that any such
agreement or waiver of protection afforded to the veteran by law should
be an option and not a requirement, and not be utilized to discriminate
or disallow the claim or appeal from proceeding or returning to the
normal claims process. Moreover, we do not concur with the proposed
statutory changes to 38 USC Sec. 7105(b)(1), 7104, 7101, and 7107(b) as
the goal of speeding up the process should not be accomplished by
depriving appellants of due process. We believe that the three core
elements that must be allowed are staffing levels, adequate training,
and accountability.
Appeals Management Center
In August 2001, VA proposed to amend the Board's regulations to
enable the Board to perform record development itself and make a
decision on that evidence rather than remand the case to the agency of
original jurisdiction for these purposes. For several reasons related
to unfairness and inefficiency, the DAV urged VA not to issue a final
rule to authorize this practice. We also noted that such a rule would
be unlawful because it would deprive claimants of the statutory right
to have a decision by VA and one administrative appeal from that
decision.
VA brushed aside our objections and recommendations to utilize
Veterans Benefits Administration (VBA) personnel rather than the BVA
and issued a final rule for this purpose in January 2002. BVA created
its Evidence Development Unit, which began operations in February 2002.
The DAV, joined by three other organizations, challenged this rule and
in its May 1, 2003, decision, the United States Court of Appeals for
the Federal Circuit invalidated the rule as unlawful. As a result, VA
created a special VBA unit, the AMC, to perform remand functions.
The AMC develops and decides approximately 82 percent of the BVA
remands. The issues involved in the other 8 percent are more
appropriately handled by the field offices. Although the average time a
case was in remand status during FY 2006 was 16 months because a
portion of the cases were old ones remanded to field offices, the
portion of the remanded cases that were developed and decided by the
AMC were on remand an average of approximately 336 days. The most
recent data available to DAV for FY 2007 indicates the AMC currently
completes work on an average of 710 cases a month and 18,622 cases are
assigned to AMC.
The initial bulk transfer of approximately 9,000 cases from the
Board to the AMC in the first quarter of FY 2004 were cases in which
further development was pending at the Board. Of course, the AMC had
both the responsibility to develop and adjudicate these cases. In the
beginning when the AMC was first organized, it had to cope with new
processes and adjudicators, and it was understandably not up to full
efficiency. As a consequence, cases began to back up.
Because the volume of work at the AMC was higher than expected, VBA
developed a plan in December 2004 to have three VA regional offices do
a portion of the remands to reduce the backlog. These offices are
located in Huntington, West Virginia; St. Petersburg, Florida; and
Cleveland, Ohio. Initially, the plan was to broker already developed
cases to these regional offices to adjudicate, and authorize awards as
indicated. However, the Huntington and St. Petersburg offices found
that some of the cases they received from the AMC were not actually
ready to adjudicate, and that these offices began to undertake
development also.
Out of the three regional offices, only Huntington remains a
receiving station for brokered cases from the AMC, in addition to the
Seattle VA regional office. According to the AMC, 300 cases a month are
sent to the AMC teams at the two regional offices, significantly less
than the 1,300 cases to three regional offices in 2005.
Our DAV representatives at BVA observed that some of the earlier
cases returned to the Board from the AMC were not developed in
compliance with the remand orders. However, with AMC employees gaining
experience, the quality of development has improved. The AMC is viewed
as an improvement over the prior procedure in which all cases were
remanded to agencies of original jurisdiction because cases are more
strictly controlled and not left to languish in field offices for years
as too often happened before. Our representatives at the AMC also
report that AMC adjudicators are granting the benefits sought in many
of these appeals.
When the BVA allows an appeal, it returns the case to the AMC
rather than the agency of original jurisdiction to effectuate the award
of benefits. The case often must go to the AMC because the appeal also
involves a remanded issue. A major and continuing complaint is the
delay in the award of benefits on the allowed portion of the appeal.
While benefits sought may be granted, the average time from the
decision to issuance of the award to the veteran has doubled from an
average of 3 months in 2005 to an average of 6 months. Even where the
case involves no remanded issue, the case is sent from BVA to the AMC
for the award of benefits resulting in unnecessary delays.
In 2005, VBA had 134 FTE devoted to the AMC and its three
outstations: 87 FTE in the AMC; 25 FTE in St. Petersburg; 8 FTE in
Huntington, and 14 FTE in Cleveland. According to the AMC, there are
now 99 in the AMC, and no FTE devoted to the two resource centers in
Huntington and Seattle.
Focus on the BVA and the AMC alone does not present a complete
picture of the effectiveness of VA's appellate processes. The
timeliness and propriety of actions on appeals by agencies of original
jurisdiction in preparing the case for BVA review and in completing
remand actions after BVA review account for much of the overall
appellate processing time and necessity to rework the case. The
available data show the error rates in appealed cases are high and that
the process takes an inexcusably long time, thereby delaying disability
and other benefits for many veterans with meritorious claims and
immediate needs. The problem of appeals languishing in regional offices
for years is not a new one. The responsible VBA officials need to take
more decisive action to correct this problem. Board officials need to
take the necessary steps to reduce error rates in BVA decisions and to
ensure binding court mandates are carried out. With recent increases in
the appellate caseloads and no corresponding increase in staffing,
timeliness at BVA and the AMC is likely to suffer even more. Congress
needs to address BVA space and staffing more seriously.
In addition, DAV and VA are unaware of what the effects of the
provision in Public Law 109-461, which allows attorneys and agents to
charge fees to veterans, will be on the Board, the AMC, and the
timeliness and accuracy of the appellate process.
We appreciate the Subcommittee's interest in these issues, and we
appreciate the opportunity to provide you with the DAV's views. We hope
our views will be helpful to the Subcommittee.
Prepared Statement of Eric A. Hilleman, Deputy Director,
National Legislative Service,
Veterans of Foreign Wars of the United States
Mr. Chairman and Members of the Subcommittee:
On behalf of the 2.4 million members of the Veterans of Foreign
Wars of the U.S. (VFW) and our Auxiliaries, I would like to thank you
for your invitation to testify at today's important hearing on the
``Board of Veterans' Appeals (BVA) Adjudication process and the Appeals
Management Center (AMC).'' Let me begin by stating that the VFW is
committed to an effective and efficient claims process, with a just and
accessible appeals process. We hope to be a partner in seeking
actionable solutions to the challenges that the VA faces.
The VFW's genesis is with the group of veterans who returned from
the U.S. campaigns on Cuba and the Philippines in 1898 and 1899. These
veterans organized to care for veterans who endured the hardships of
the battlefield, so that our Nation may never forget their sacrifice.
All Veterans Service Organizations (VSOs) have a similar goal, to
ensure the American people, through their government continue to
recognize and acknowledge their sacred obligation to those citizens who
sacrificed and risked life and limb for their defense. The VFW believes
this agreement does not cease when the uniform lies folded in a drawer.
We must view the Department of Veterans Affairs' claims process
through the lens of this social contract. We, and other VSOs, have long
served at no cost to our fellow veterans to provide benefits
counseling, claims development, outreach, and claims review in VA
regional offices, the BVA and the AMC. We, like other VSOs, maintain
full time appeals consultants at the BVA and AMC.
The VFW adds value to the claims adjudication process. We serve as
a quality assurance tool in reviewing cases. We formulate arguments to
further veterans' rights to fair compensation. In addition, we foster a
working relationship with the VA with the goal of keeping the best
interests of the veteran at the forefront of the decisionmaking
process.
The backlog of veterans' claims within Veterans Benefits
Administration (VBA) is on the rise. The nearly 640,000 rating and
authorization cases are pending and this is 7.4 percent higher than
last year and 22\1/2\ percent higher than 2 years ago. The challenges
VBA faces in addressing the mounting workload are well established.
These include the growth of the total claims workload, an ever-
increasing complexity of the workload, and the expectations for
accurate and timely decisions. The contributing factors of the backlog
are also well known.
The rise in the number of claims is a tragic success for the VA.
Due to VA's increased outreach efforts and greater access through Vet
Centers, more veterans are learning and taking advantage of their
earned benefits. Greater numbers of young veterans are returning from
combat operations and seeking assistance to reestablish a civilian
life. So too, an aging generation of Vietnam, Korean, and WWII veterans
are living longer lives than previous generations and seeking care at
VA facilities.
With the residual effects of combat and military service on
veterans, the complexity of claims is on the rise. The United States
Court of Appeals for Veterans Claims has also ruled to improve the
fairness and access for veterans seeking compensation for injuries and
illness incurred or aggravated while in service. On more than one
occasion, rulings of the court have caused VBA to readjudicate
thousands of claims in an already overwhelmed claims processing system.
Couple this administrative woe with the medical challenge of multiple
body-system blast injuries of OIF/OEF veterans and the increasing
strain of the effects of illnesses like diabetes and cancer that are
synonymous with herbicide exposure in Vietnam and the VA is
overwhelmed.
As the backlog of VBA claims swells at every step of the process,
the VA weighs the values of quality vs. quantity. The VFW demands both
quality and timeliness. The VA has repeatedly testified before Congress
to the ills that plague its claims system. Congress has aptly responded
with a much-needed increase in funding, yet additional personnel,
following decades of inadequate staffing, will not be productive in the
near term. The Congress, the VA, and the Veterans' community must
examine the system and move forward together.
VBA has sought to address these problems by creating an Appeals
Management Center (AMC) here in Washington. The AMC is comprised of a
dedicated and committed staff. The AMC addresses the problem of appeal
remand development, collecting and requesting additional medical
records, exams, and necessary military records. The driving idea behind
the AMC was specialization, thus making the AMC a catch basin at the
end of the process to improve quality. It has yet to realize its
original vision--again the absence of training and difficulties in
fully staffing ensures that it will never live up to its potential.
The VFW supported the establishment of the AMC and we continue to
work side-by-side with the VBA to improve the appeal process. There are
a number of looming concerns beyond the present need for adequate
funding, such as personal issues in the areas of training and turnover.
VBA employees face a long and complex training regimen and are not
easily replaced. VBA's ability to deliver timely and accurate claims is
eroding because of operating in crisis management mode, an aging
workforce, and a program that seems to be growing relentlessly more
complex. Perhaps the answers lie in some combination of technology,
more effective and enlightened training, and new employees committed to
serve the new generation of veterans. Most troubling to us is the
possibility of significant policy change, not necessarily favorable to
veterans, which would further complicate the process and change it into
a more adversarial environment.
Despite their best efforts, VBA's production is fraught with a high
error rate and growing caseload. It seems clear that VBA lacks a
methodology to eliminate or accurately identify the serious errors that
plague one out of every seven or eight claims decisions. It also seems
obvious that faulty decisionmaking will go unaddressed unless solutions
involving a combination of improved information technology, program
reform, and strong leadership are implemented with special care not to
increase complexity and duplication.
Reform of the system is required. Change is not without precedent
in government agencies, but it is only possible when all concerned are
truly interested in improvement, and not just in putting a positive
spin on the latest bad news. We think that with the support of a strong
VBA leadership, the necessary reform is possible. We urge the Congress
to further examine this issue, exercise leadership, and build consensus
for reform.
Thank you for this opportunity to present our views before this
Subcommittee. We welcome questions and look forward to working with
interested parties toward viable solutions with the best interests of
veterans at heart.
Prepared Statement of Arnold Russo, Director,
Appeals Management Center, Veterans Benefits Administration,
U.S. Department of Veterans Affairs
Chairman Hall and Members of the Subcommittee.
Thank you for providing me the opportunity to appear before you
today to discuss the operations of the Department of Veterans Affairs
(VA) Appeals Management Center (AMC).
My statement today will address the remand process and the current
AMC workload.
Appeals Management Center
The AMC was created in July 2003, consolidating the responsibility
for managing remands from the Board of Veterans' Appeals (BVA) into a
single operation where resources and expertise could be concentrated.
The mission of the AMC is to process remands timely and
consistently. The AMC has complete authority to develop remands, reach
decisions based on additional evidence gathered, and authorize the
payment of benefits. If the AMC is unable to grant an appeal in full,
the appeal is re-certified to BVA for continuation of the appellate
process.
Veterans Benefits Administration (VBA) and BVA have worked closely
together to address the root causes of remands. Our joint initiatives
have focused on increased coordination of data collection,
identification of trends, and training. These joint initiatives have
proven to be very successful. The remand rate for FY 2005 was 43
percent. The current remand rate has improved dramatically to 34
percent.
We continue to work to identify the root causes of cases being
remanded. There are many reasons why a case may be remanded by BVA for
additional action that are beyond the control of the regional office
that processed the case, such as a regulatory change or new precedent
Court decision. While remands do not necessarily mean that a mistake
was made in the processing of the case, we have focused our attention
on analyzing those cases where development by the regional office was
deficient and the remand could have been avoided.
Deficiencies are tracked nationally and by regional office and are
targeted for development of additional guidance and/or increased
training. Additionally, VBA this year added ``avoidable remand rate''
to the performance standards for all regional office directors. Through
the end of August 2007, the FY 2007 national avoidable remand rate is
under 18 percent, or a 6 percent improvement over last year.
To improve the timeliness of remand processing at the AMC, we have
added a technical expert to every team to ensure that any information
requested in the remand order was asked for and obtained, or a
satisfactory explanation as to why the evidence could not be obtained
included in the claims folder. This procedure provides an internal
check on our development practices, and ensures consistency throughout
the AMC.
The AMC has received assistance in remand processing from three of
VBA's resource centers. This allowed the AMC to establish a workflow
that develops cases in a timely, efficient, and accurate manner. During
FY 2003, regional offices were taking an average of 700 days to
complete a remand. In FY 2005, average processing time for a remand
completed at the AMC was 400 days. Currently, the AMC is averaging 343
days to process a remand. We continue to strive for further
improvement. A strategic goal of 230 days to complete a remand has been
established. This goal represents the minimum time needed to complete a
remand given the notification, evidence collection, and follow-up
requirements of the Veterans Claims Assistance Act and other legal
requirements.
Steady improvement also continues as a result of the AMC's
effective working relationships with many of the veterans service
organizations (VSOs). The VSOs work directly with our decisionmakers
and help reduce administrative waiting time. When the VSOs are
satisfied that a case is ready to be certified back to BVA, they
complete the necessary forms and assist us in getting the case back to
the BVA for a final determination.
The AMC's progress in improving the quality of remand processing is
demonstrated by the reduction in the number of cases remanded a second
time. Two years ago, approximately 35 percent of the cases certified to
BVA by the AMC were again remanded to the AMC. Today, approximately 85
percent of the cases certified to BVA by the AMC are accepted and
finalized.
The AMC remand inventory at the end of FY 2006 was 14,650.
Currently, the inventory is 18,300. One of the reasons for the
increased inventory is the increase in the number of remands received
during the Fiscal Year. Last year the AMC received 15,008 remands, an
average of 1,250 per month. Even with the reduced remand rate, we are
this year receiving an average of 1,417 remands per month. In addition,
because of VBA's increased disability claims workload, the three
resource centers that had been assisting the AMC were redirected to
supporting regional offices with high workload inventories.
To address the remand workload, the AMC was authorized to increase
its staffing level from 87 employees to 105 employees. These new
employees have gone through centralized training and are now receiving
training at the AMC. Many of our new hires will attain journey-level
status toward the end of FY 2008 and will then be able to significantly
contribute to remand production. The long-term impact of our hiring
will be that the AMC will become self-sufficient, and will continue to
improve both the timeliness and accuracy of remand processing.
Conclusion
In summary, VBA has made a concentrated effort to improve appellate
processing and focus on the remand workload by establishing a
centralized processing center that establishes a core expertise in this
area. The AMC is dedicated to properly and accurately assembling any
evidence needed, as directed by BVA, in order to expeditiously process
the remands. We believe we are moving in the right direction, and
continuing efforts will allow us to significantly improve the appeals
process for veterans.
Mr. Chairman, this concludes my statement. I will be happy to
respond to any questions that you or other Members of the Subcommittee
might have.
Prepared Statement of Hon. James P. Terry, Chairman,
Board of Veterans' Appeals, U.S. Department of Veterans Affairs
Good morning, Chairman Hall, Mr. Lamborn and Members of the
Subcommittee. It is a pleasure to be here today to discuss with you the
Board of Veterans' Appeals' (Board's) role in the VA benefits claims
adjudication system. I will address Board productivity, the accuracy of
our decisions, current issues affecting the Board, and a review of
those actions we are taking to improve the claims and appeals
adjudication process.
The Board renders final decisions on behalf of the Secretary on all
appeals of adverse decisions issued under a law that affects the
provision of VA benefits. These appeals most commonly arise from
decisions of VA regional offices, but also include those arising from
decisions by VA medical centers. Although the Board is an appellate
body, it has fact-finding authority and provides a fresh look at the
law and evidence in each case it considers. In addition to ruling on
the merits of a claim, the Board may direct further development of the
evidence and readjudication of the claims at issue by the agency of
original jurisdiction (AOJ) if it is necessary to fairly consider the
appeal.
The Board has jurisdiction over a wide variety of issues and
matters, but the vast majority of appeals involve claims for disability
compensation benefits, such as claims for service connection, an
increased rating, or survivor's benefits, which were denied at the VA
regional office (RO) level. The Board's objective is to produce well-
reasoned, accurate, timely, and fair appellate decisions in all the
cases that come before us.
As I testified last year before this Committee, two of the Board's
most important initiatives are: (1) To contain and reduce the backlog
of appeals by increasing decision productivity, while maintaining high
quality; and (2) to improve timeliness and service to veterans by
eliminating avoidable remands in order to issue more final decisions.
I am happy to report that we have had much success in working
toward both these goals, as demonstrated by comparing our past
performance with that of recent years.
In Fiscal Year (FY) 1994, the Board issued 22,045 decisions with
442 full time equivalent employees (FTE). Our pending caseload stood at
47,148, and was on its way to 60,000. By FY 1998, we had significantly
improved our productivity by issuing 38,886 decisions and holding 4,875
hearings, with 483 authorized FTE.
Most recently, in FY 2006, the Board issued 39,076 decisions. We
also conducted 9,158 hearings, the highest number ever by the Board,
and almost twice as many hearings as in 1998. In 2007, we are on track
to exceed both these figures.
The Board's most significant challenge for the future is to
eliminate the growing backlog. We will continue to use our resources as
efficiently and effectively as possible to meet this challenge.
However, despite our best efforts, we continue to receive more appeals
than we are deciding. Cases pending at the start of FY 2006 stood at
37,539, and by the beginning of FY 2007 rose to 40,265. This is despite
the fact that the Board issued 4,901 more decisions in FY 2006 than in
the previous year. We have already exceeded the FY 2006 total at this
point in 2007.
To enable the Board to eliminate the growing backlog, the two most
important goals for the Board are to continue efforts to reduce
avoidable remands and increase productivity. In regard to remands, we
know that veterans want timely and correct decisions with respect to
their claims for benefits. For the Board to do that, the record must
contain all evidence necessary to decide the claim and show that all
necessary procedural protections have been provided. If the record does
not meet these requirements, and the benefits sought cannot be granted,
a remand for further development by the AOJ is necessary.
Remands significantly lengthen the amount of time it takes for a
veteran to receive a final decision. A remand adds about a year to the
appellate process. Remands not only delay individual cases, but divert
resources from deciding new appeals. About 75 percent of cases remanded
are returned to the Board, which increases our workload and further
degrades timeliness. In addition, because by law we generally must
decide the oldest cases first, processing of newer appeals is delayed
when remanded appeals are returned to the Board for readjudication.
Hence, eliminating avoidable remands is a goal that will provide better
service to veterans and their families and, ultimately, will contribute
to diminishing the growing backlog.
Since FY 2005, when we began working concertedly with the Veterans
Benefits Administration (VBA) to avoid remands to the extent possible,
we have made great progress in reducing avoidable remands. To
illustrate briefly, in FY 2003, the Board issued 31,397 decisions, with
a remand rate of 42.6 percent. In FY 2004, while the number of
decisions issued increased to 38,371, the remand rate soared to 56.8
percent. In FY 2005, we issued 34,175 decisions of which 38.6 percent
were remanded in whole or part. We are happy to report that in FY 2006,
we issued 39,076 decisions, with a remand rate of only 32 percent. We
have seen the remand rate hold its own during FY 2007, as we have
produced more cases on appeal than a year before and will exceed 40,000
decisions on appeal this Fiscal Year.
By ``avoidable'' remands, we are referring to a class of cases in
which a remand could have been avoided if the case was properly
processed and reviewed in accordance with existing laws and
regulations. It is important to note that under the current
adjudication system a certain percentage of remands are expected for
various reasons beyond VA's control. For example, some cases must be
remanded to address intervening changes in the law, new medical
evidence, changes in medical condition, or other due process
considerations. On the other hand, some remands can be avoided by
careful development of the record and application of the appropriate
law, as well as close analysis of the record and consideration of a
harmless error analysis.
We continue to work closely not only with VBA, but with the Office
of General Counsel (OGC) and the Veterans Health Administration (VHA)
to identify and track the root causes of remands in order to provide
training that will eliminate avoidable remands. Our training efforts
have been considerable. Several training sessions on remand avoidance
have been held for all Veterans Law Judges (VLJs) and staff counsel. We
have also held joint training sessions with VBA, including a national
video broadcast, on avoidable remands and evidence development. We have
conducted numerous sessions on a variety of medical and legal subjects
within our jurisdiction--all designed to reduce remands and improve
quality. Additionally, each of our Travel Boards has met with regional
office (RO) personnel to answer questions, conduct training, and/or
discuss shared areas of concern. Finally, we have been working with VHA
and VBA through the Compensation and Pension Examination Project (CPEP)
to improve the quality of VA compensation medical examinations, which
is reducing a major cause of remands.
Another important challenge for the Board is to work closely with
the 57 ROs and the Veterans Service Organizations to ensure that Travel
Boards are dispatched as soon as a sufficient number of cases that are
nearing their place on the Board's docket are ready for hearing. In
2007, in addition to 114 scheduled Travel Boards, 12 unscheduled trips
to San Antonio, Texas (3 trips); Seattle, Washington; New York City,
New York; Atlanta, Georgia; Phoenix, Arizona; Cleveland, Ohio;
Huntington, West Virginia; Albuquerque, New Mexico; Houston, Texas, and
San Diego, California were added after the ROs provided notice that the
docket was ready. The Board also expanded a scheduled Travel Board to
St. Petersburg, Florida, from 1 week to 2 weeks at the request of the
RO. These additions during the year resulted in a total of 126 Travel
Boards for 2007. Of the 126 Travel Boards, 5 were combined trips which
visited two ROs (Lincoln/Des Moines, Fargo/Sioux Falls, Ft. Harrison/
Boise, Denver/Cheyenne, and Togus/White River Junction). On the last 2
days of each of our Travel Boards, we offer training and assistance by
our staff attorneys to the RO adjudication staff. This is as much of a
benefit to the Board as to the RO staff if it precludes one case from
being returned to the RO from the Board via remand for further
development.
Although much has been done, we still have much to do in increasing
productivity at the Board. Within existing resources, and by way of
incentives and sound management, we will continue to improve by:
1. Eliminating avoidable remands;
2. Strengthening our intra-agency partnerships: Our joint
training efforts with VBA, OGC, and VHA are improving decision quality
and reducing remands;
3. Writing shorter and more concise decisions: We continue to
train and encourage our VLJs and counsel to write clear, concise,
coherent, and correct decisions;
4. Utilizing employee incentive, mentoring and training programs:
A number of new programs have been introduced to increase employee
motivation and satisfaction, as well as to increase productivity and
decision quality;
5. Making judicious use of overtime: We will use overtime within
existing resources to enhance productivity;
6. Increasing our use of paralegals: We will increase the use of
our paralegals for non-decisional support activities, freeing up our
legal staff to decide appeals;
7. Providing improved online legal research tools and analytical
frameworks to aid timely and correct decision production;
8. Succession planning: The Board will continue its rigorous
associate counsel recruitment program to hire the best and brightest
attorneys available;
9. Improve quality: The Board will use its quality review process
to identify areas of concern that require follow-up training;
10. VLJs will draft some decisions, in addition to reviewing and
revising drafts prepared by staff counsel; and
11. Aggressive recruiting and training program to ensure full
productivity by maintaining our authorized staffing levels.
We believe these measures will reduce the backlog and shorten the
time it takes for a veteran to receive a fair, well-reasoned Board
decision. In addition to the Board's increases in productivity, we have
also improved decision quality. In FY 2006, the Board's decision
quality was 93 percent, based on 39,076 total decisions issued. We are
proud to report that in FY 2007, not only will the Board increase its
total decision output to over 40,000 cases, but the Board's decision
quality will be maintained at over 93 percent. By decision quality, we
mean that there were no substantive or procedural errors that would
have resulted in the case being reversed or remanded to the Board by
the United States Court of Appeals for Veterans Claims. Into the fourth
quarter of FY 2007, we find that the enhanced decision quality of 93.4
percent is being maintained.
Although there was an increase in quality and quantity, the Board
saw its pending caseload grow significantly in 2006 and 2007. As I
briefly noted earlier, in addition to issuing 39,076 decisions in FY
2006 and more than 40,000 projected for FY 2007, we conducted 9,158
hearings in 2006 and expect to conduct more than 10,000 in 2007. This
is the greatest number of hearings ever held by the Board. However, the
number of cases pending before the Board at the beginning of FY 2007
was 40,265, which was close to a 3,000 case increase over the 37,539
cases that were pending at the beginning of FY 2006. This increase in
pending cases occurred despite the increase in the number of decisions
issued of nearly 5,000 in 2006 over 2005 and an even greater number of
decisions issued this year than in 2006. By the end of this September,
we expect to have about 28,500 cases with a pending request for a Board
hearing. Of these cases, approximately 8,000 are actually ready for a
hearing. Our 126 Travel Boards in FY 2007 have sharply reduced the
number of pending hearings from 1 year ago.
Although we continue to operate below a required personnel level,
our attorneys and judges are ahead of last year's pace in terms of
productivity. I attribute this increased productivity to superb
leadership in each of our Decision Teams and in our Administrative
support division, an unparalleled inhouse training and mentoring
program, and to the quality of our support staff and the line attorneys
that draft complex, quality decisions in an accurate and timely manner.
As you know, we have high expectations for our counsel and Veterans
Law Judges. We ask each of our counsel to write more than three
complete draft decisions a week, and each of our line Judges to review,
modify as necessary, and sign an average of at least 19 decisions a
week. Over the course of the year, the Board's fair share standards
call for our attorneys to complete a total of 156 timely decisions of
high quality, and for each of our line Judges to complete and sign 752
decisions. We are also concentrating on quickly dispatching the final
decisions to the applicant and his or her representative through
improved administrative processing. In addition, each Judge is expected
to complete at least 3 week-long Travel Board trips per year, in which
they hear cases at one of the 57 ROs and at several satellite offices.
An experienced staff counsel accompanies the Judges during these Travel
Board trips to assist in the conducting of the hearings and to provide
training and other requested assistance to the RO staff.
Finally, I would like to mention a new initiative directed by
Secretary Nicholson that will greatly assist our timely resolution of
new appeals. The Expedited Claims Adjudication Initiative, briefed to
the staffs of the House and Senate Veterans' Affairs Committees earlier
this year, and to VSO representatives as well, will offer an expedited
process to represented claimants who desire to shorten the time
required to process their claims. At four selected Regional Office
locations (Philadelphia, Nashville, St. Paul and Seattle), the VBA and
the Board will provide a 2 year model to streamline the claims
adjudication and appeals process system-wide. A veteran who elects to
participate in this program will be required to waive time periods not
required to address his or her claim, and in return, will be placed on
a fast track for adjudication. The rapid disposition of these claims
will reduce the backlog and thereby ultimately improve the overall
timeliness of claims processing. In addition, the pilot program will
provide useful information on the efficacy of revising timelines in
current law and regulation to establish a fair, but streamlined, claims
adjudication process. The regulations required to effect this program
through their publication in the Federal Register have been drafted and
are now under Departmental review.
In conclusion, we will continue working to develop new and creative
solutions to the challenges we face in order to fulfill our statutory
mission to hold hearings and provide timely, high quality decisions to
our Nation's veterans and their families.
I am pleased to answer any questions you or your colleagues may
have.
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
October 1, 2007
Mr. Robert Chisholm
National Organization of Veterans Advocates
P.O. Box 65876
Washington, DC 20035
Dear Mr. Chisholm:
Thank you for testifying before the House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
hearing on the Board of Veterans' Appeals and the Appeals Management
Center.
I am submitting additional questions to be included in the hearing
record. I would appreciate your response to the enclosed additional
questions for the record by close of business October 15, 2007.
Please restate the question in its entirety and please provide your
answers consecutively on letter size paper, single spaced.
Thank you for your consideration in this matter.
Sincerely,
Doug Lamborn
Ranking Republican Member
______
Questions for the Record
Hearing on Board of Veterans Appeals and the Appeals Management Center
Subcommittee on Disability Assistance and Memorial Affairs
September 25, 2007
Mr. Chisholm
1. We all know how it is difficult to retain attorneys here in
Washington, DC. Why couldn't we place the board into satellite offices
that could look at cases regionally? There may not be as much of a
problem finding attorneys in other parts of the country and we all know
that the space would be cheaper than downtown Washington, DC. What are
your thoughts on this idea?
[THERE WAS NO RESPONSE RECEIVED FROM MR. CHISHOLM.]
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
October 1, 2007
Mr. Bart Stichman
National Veterans Legal Services Program
1600 K Street, Suite 500
Washington, DC 20003
Dear Mr. Stichman:
Thank you for testifying before the House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
hearing on the Board of Veterans' Appeals and the Appeals Management
Center.
I am submitting additional questions to be included in the hearing
record. I would appreciate your response to the enclosed additional
questions for the record by close of business October 15, 2007.
Please restate the question in its entirety and please provide your
answers consecutively on letter size paper, single spaced.
Thank you for your consideration in this matter.
Sincerely,
Doug Lamborn
Ranking Republican Member
______
Questions for the Record
Hearing on Board of Veterans Appeals and the Appeals Management Center
Subcommittee on Disability Assistance and Memorial Affairs
September 25, 2007
Mr. Stichman
1. We all know how it is difficult to retain attorneys here in
Washington, DC. Why couldn't we place the board into satellite offices
that could look at cases regionally? There may not be as much of a
problem finding attorneys in other parts of the country and we all know
that the space would be cheaper than downtown Washington, DC. What are
your thoughts on this idea?
[THERE WAS NO RESPONSE RECEIVED FROM MR. STICHMAN.]
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
October 1, 2007
Mr. Carl Blake
National Legislative Director
Paralyzed Veterans of America
801 18th Street, NW
Washington, DC 20006
Dear Mr. Blake:
Thank you for testifying before the House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
hearing on the Board of Veterans' Appeals and the Appeals Management
Center.
I am submitting additional questions to be included in the hearing
record. I would appreciate your response to the enclosed additional
questions for the record by close of business October 15, 2007.
Please restate the question in its entirety and please provide your
answers consecutively on letter size paper, single spaced.
Thank you for your consideration in this matter.
Sincerely,
Doug Lamborn
Ranking Republican Member
______
Paralyzed Veterans of America
Washington, DC 20006
October 11, 2007
Honorable Doug Lamborn
Ranking Member
House Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
335 Cannon House Office Building
Washington, DC 20515
Dear Ranking Member Lamborn:
On behalf of Paralyzed Veterans of America (PVA), I would like to
thank you again for the opportunity to testify before the House
Committee on Veterans' Affairs, Subcommittee on Disability Assistance
and Memorial Affairs on Tuesday, September 25, 2007.
Following the hearing, you submitted additional questions as it
regards this program. The attached document provides PVA's response to
your further inquiry about the Board of Veterans' Appeals.
PVA looks forward to working with you and Chairman Hall to ensure
that any proposed changes to the operations of the Board of Veterans'
Appeals and the Appeals Management Center are reasonable and beneficial
to veterans and the system. Thank you again.
Sincerely,
Carl Blake
National Legislative Director
Question 1: We all know how it is difficult to retain attorneys
here in Washington, DC. Why couldn't we place the Board into satellite
offices that could look at cases regionally? There may not be as much
of a problem finding attorneys in other parts of the country and we all
know that the space would be cheaper than downtown Washington, DC. What
are your thoughts on this idea?
Answer: First, we completely disagree with the initial assertion of
your question. We do not believe that veterans have a hard time finding
lawyers. That is not to say that veterans who present cases with no
merit do not have problems finding lawyers. In fact, the Veterans
Consortium Pro Bono program located here in Washington does not have
problems finding lawyers to represent veterans before the Court of
Appeals for Veterans Claims. As the Pro Bono Program has continued in
its outreach activities, the number of attorneys from around the
country interested in representing veterans has increased. Referrals
are available via the usual pathways, such as legal aid and State Bar
Associations as well as via the internet.
PVA has long opposed the decentralization of the Board of Veterans'
Appeals (BVA) each time Congress has raised the question in the past.
Furthermore, we still disagree with the idea. BVA was decentralized
early in its history. But decentralization results in greater
inconsistency. The 73rd Congress, in P.L. Number 2, enabled the
President to establish special boards to review veterans' claims.
President Roosevelt created the BVA in 1933 via Executive Order 6230.
Congress established the Board as a statutory body by statute in 1946.
By housing BVA in the same building and sharing the same resources,
consistency is improved over a decentralized system.
We also believe other problems might arise from decentralizing the
Board. First, because the people at BVA are a group, over time they
develop similarities in their interpretations of rules and similarity
in their understanding of certain medical issues, military history,
jargon, and the historical background of certain regulations and
administrative issues; thereby increasing consistency by this group-
think. Several years ago, BVA noticed that its four sections (BVA is
divided into four sections by geographic jurisdiction) tended to
develop a group-think internally within each section leading to
decisions that tended to depend more on the section making the decision
than the law or the evidence. BVA then began rotating staff into and
out of the sections in order to develop more overall consistency. If
the Board was physically divided, the possibility of developing a
regional group-think is worse and therefore overall inconsistency
greatly increases once again.
Second, if the BVA is located at regional offices (RO), mission
creep becomes a factor. In other words, BVA staff begins to perform
tasks that support the mission of the RO in addition to their own
mission. A centralized Board prevents the VA offices from pulling BVA
staff away from their primary responsibility. BVA was quoted as saying,
``it was felt that such actions [i.e., consultations with others within
VA] were not consistent with the legislated judicial detachment and
autonomy of the Board.'' \1\ Interaction between BVA staff and RO staff
inevitably promotes mutual inter-dependence and reduces that detachment
and autonomy.
---------------------------------------------------------------------------
\1\ BVA, 50th Anniversary Pamphlet (1983).
---------------------------------------------------------------------------
Third, a decentralized BVA would create a loss of economy of scale.
If BVA is divided into several physical locations, expenditures would
increase in order to pay for redundant office space, utilities,
equipment, support staff, mail processing, and security. VA would also
have much greater travel expenses to pay for in order to conduct
centralized training events or manage conferences. Decentralized
structure is simply not the way to save money on operations. In fact,
prior studies of VA operations, such as the W.R. Grace Commission in
the 1980s, have recommended reducing the number of VA offices in order
to make more efficient use of available resources.
Fourth, attorneys may interact with VA at a variety of locations
and levels. BVA hearings are routinely conducted via a videoconference
at the office or medical facility nearest to the veteran with the
Veteran Law Judge sitting in D.C. Claim files are routinely transferred
to VA offices for attorneys to review and are copied upon request.
Accelerating the effort to move VA to an electronic claim record would
greatly reduce the relevancy of where BVA is physically located.
We therefore recommend that as attorneys approach the veteran
arena, they should utilize educational opportunities, such as the
Veterans Consortium Pro Bono Program and the Annual Conference of the
U.S. Court of Appeals for Veterans Claims to become familiar with this
area of law. Furthermore, we recommend that attorneys review the
resources available on the Internet such as the webpage operated by The
National Association of Veterans Advocates (NOVA), including their chat
room. In this way, the pool of available attorneys competent in this
area of law may grow.
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
October 1, 2007
Mr. Steve Smithson
The American Legion
10608 L Street, NW
Washington, DC 20006
Dear Mr. Smithson:
Thank you for testifying before the House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
hearing on the Board of Veterans' Appeals and the Appeals Management
Center.
I am submitting additional questions to be included in the hearing
record. I would appreciate your response to the enclosed additional
questions for the record by close of business October 15, 2007.
Please restate the question in its entirety and please provide your
answers consecutively on letter size paper, single spaced.
Thank you for your consideration in this matter.
Sincerely,
Doug Lamborn
Ranking Republican Member
______
Questions for the Record
Hearing on Board of Veterans' Appeals and the Appeals Management Center
Subcommittee on Disability Assistance and Memorial Affairs
September 25, 2007
Mr. Smithson
1. We all know how it is difficult to retain attorneys here in
Washington, DC. Why couldn't we place the Board into satellite offices
that could look at cases regionally? There may not be as much of a
problem finding attorneys in other parts of the country and we all know
that space would be cheaper than downtown Washington, DC. What are your
thoughts on this idea?
Response: The American Legion is not aware of any specific problems
the BVA is having with finding or retaining attorneys related to the
location of the Board in Washington, DC. The Legion would, however, be
happy to review any relevant data you have pertaining to this issue.
The production pressure on BVA attorneys caused by the increasing
number of appeals will be a constant no matter where the Board is
located. There are both pros and cons to having the BVA located in
Washington, DC, but it is the opinion of The American Legion that any
disadvantage to having the BVA in Washington, DC, is outweighed by the
advantage of having a centrally located BVA in proximity to VA Central
Office. Additionally, having the BVA located in Washington, DC, creates
a barrier between BVA and the VA regional offices, helping to establish
the BVA as a separate entity independent of the regional offices.
Moreover, there is nothing to suggest that creating satellite regional
BVA offices would improve the quality of the BVA work product. Moving
the BVA to the ``field'' closer to VA regional offices, however, could
adversely impact its independent identity and cause an increased number
of inconsistent BVA adjudications.
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
October 1, 2007
Mr. Eric A. Hilleman
Deputy Director
Legislative Affairs Office
Veterans of Foreign Wars of the United States
200 Maryland Ave, NE
Washington, DC 20002
Dear Mr. Hilleman:
Thank you for testifying before the House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
hearing on the Board of Veterans' Appeals and the Appeals Management
Center.
I am submitting additional questions to be included in the hearing
record. I would appreciate your response to the enclosed additional
questions for the record by close of business October 15, 2007.
Please restate the question in its entirety and please provide your
answers consecutively on letter size paper, single spaced.
Thank you for your consideration in this matter.
Sincerely,
Doug Lamborn
Ranking Republican Member
______
Questions for the Record
Hearing on Board of Veterans' Appeals and the Appeals Management Center
Subcommittee on Disability Assistance and Memorial Affairs
September 25, 2007
Eric A. Hilleman
Question
We all know how it is difficult to retain attorneys here in
Washington, DC. Why couldn't we place the board into satellite offices
that could look at cases regionally? There may not be as much of a
problem finding attorneys in other parts of the country and we all know
that the space would be cheaper than downtown Washington, DC. What are
your thoughts on this idea?
Response
With 276 attorneys for every 10,000 residents \1\ the last thing
Washington, DC has is a shortage of lawyers. The difficulty of
recruiting and retaining qualified attorneys, if such difficulty
exists, does not stem from the lack of attorneys but, rather, from the
inadequacy of the pay and, probably more relevant, the nature of the
work and extremely high caseloads.
---------------------------------------------------------------------------
\1\ Avery Index; http:\\www.averyindex.com/lawyers_per_capita.php
---------------------------------------------------------------------------
The idea of breaking up the BVA and sprinkling Veteran Law Judges,
with supporting staff and clerical assistance, like flower seeds across
the countryside has been around for years. Simply moving Board sections
out of Washington will only ensure that Board sections have been moved
out of Washington. The largest VA regional offices are currently
located in St. Petersburg, FL, New York City, Houston, Chicago, Los
Angeles and San Francisco. The cost of living in New York, Los Angeles
and San Francisco is higher than it is here in Washington, while the
number of available attorneys is less than 1/10th that of Washington,
suggesting that competition in those cities would be more, not less,
intense than it is here.
While the cost of living in St. Petersburg, Houston and Chicago may
be less than Washington, the competition for available lawyers would,
in our view, remain problematic.
Other problems would stem from the break-up of the BVA.
Loss of economies of scale
Clerical staff would increase
Training of staff attorneys and support staff becomes
more difficult and less efficient
Training would become less uniform and more fragmented
Increased difficulty in responding to staffing
imbalances
Travel expenses for Travel Board hearings could
actually increase in some areas
Depending on the location of the Boards, office space
could cost more than Washington, DC
Personal hearings would likely increase since travel to
regionalized Boards would be less expensive for some appellants
Why is the creation of a second AMC site away from Washington
desirable when breaking up and relocating the BVA is not?
The fundamental difference in these proposals lies in the source of
the highly trained employees needed by VA to process either BVA appeals
or AMC remands. In the case of the BVA, the source of employees is
those admitted to practice law. As pointed out above, there are over 10
times as many lawyers available in Washington, DC, as there are
anywhere else.
However, the Appeals Management Center requires trained and skilled
Veterans Service Representatives with both adjudication and rating
specialization. There is no source of trained VSR's in Washington.
Consequently, every new VSR must be trained in a regional office
somewhere far from Washington and enticed to move here. Even with the
occasional relocation bonus, VA has found it extremely difficult to
recruit VSR's for work in Washington. It is based on these facts that
we propose the recreation of an AMC in a medium sized city where the
cost of living was reasonable and VA would be a major, or at least
competitive, employer. Those factors would allow VA to recruit more
VSR's than they can today with the lure of an additional pay grade.
The proposal to regionalize the BVA is an interesting concept.
However, we do not believe that it would be any more effective in
solving an attorney recruitment and retention problem. At the same
time, we believe that additional problems would be created which would
aggravate, not resolve, the number of cases pending at the BVA.
We suggest that if recruitment of staff attorneys is a problem,
then VA should use its authority to grant recruitment and retention
bonuses, augmenting salaries by 10 or 15 percent.
Committee on Veterans' Affairs
Subcommittee on Disability Assistance and Memorial Affairs
Washington, DC.
October 1, 2007
Honorable James Terry
Chairman, Board of Veterans' Appeals
810 Vermont Ave, NW
Washington, DC 20430
Dear Chairman Terry:
Thank you for testifying before the House Committee on Veterans'
Affairs Subcommittee on Disability Assistance and Memorial Affairs
hearing on the Board of Veterans' Appeals and the Appeals Management
Center.
I am submitting additional questions to be included in the hearing
record. I would appreciate your response to the enclosed additional
questions for the record by close of business October 15, 2007.
Please restate the question in its entirety and please provide your
answers consecutively on letter size paper, single spaced.
Thank you for your consideration in this matter.
Sincerely,
Doug Lamborn
Ranking Republican Member
______
Questions for the Record
Hearing on Board of Veterans Appeals and the Appeals Management Center
Subcommittee on Disability Assistance and Memorial Affairs
September 25, 2007
Honorable James Terry
Question 1: What type of training programs does the Board use for
new employees? Also, what type of training exists for current employees
to ensure their continued accuracy in decisions?
Response: The Board of Veterans' Appeals (BVA) provides the
following training on both legal and medical matters to all new staff
counsel:
Introduction to the Board of Veterans' Appeals (BVA
101)--This introduces new employees to the structure, operations and
policies of BVA. 2-hour course.
Basic Veterans' Law (BVA 201)--This is an introduction to
the law of the U.S. Court of Appeals for Veterans Claims and the
relevant rulings of the U.S. Court of Appeals for the Federal Circuit.
12-hour course.
Computer Skills Training (CST)--This provides computer
information and tips to enable more efficient drafting of decisions
using BVA's computer system. 1-hour course.
Global Training--This provides an overview of BVA's
management and administration process. Attorneys have the opportunity
to learn firsthand about the journey of a case file once it is received
at the Board. 3-hour course.
Mentoring--This is a 3-month period where the attorney is
tutored on all aspects of decision preparation by a senior BVA counsel.
Adjudication Academy--This is a 2-day offsite
collaborative effort by the Veterans Health Administration (VHA),
Veterans Benefit Administration (VBA) and the Office of General Counsel
to provide new BVA attorneys an opportunity to learn about the role
these administrations have in the adjudication process. This course is
conducted approximately once a year in Baltimore.
BVA's four decision teams schedule internal team training events
for new attorney staff and summer interns on an ``as needed'' basis.
During 2006 and 2007, the teams provided training on a wide variety of
topics, including the Veterans Claims Assistance Act (VCM) and basic
service connection concepts; increased ratings; quality reviews;
handling of multi issues/complex cases; efficient handling of cases;
career development; hearing loss; personal experiences of BVA veterans;
research tools; a presentation by Disabled American Veterans national
veterans service organization representatives; conducting BVA hearings;
medical opinion requests; BVA rules of practice and procedure; BVA
handbooks; and VA benefits overview.
BVA also devotes a substantial amount of time and resources to
providing training to our veterans law judges (VLJs) and staff counsel.
Besides VA-wide periodic training on cyber security, the Privacy Act,
the No FEAR Act, sexual harassment, and Federal ethics requirements, a
wide variety of training is provided to enable BVA to produce high-
quality decisions in a timely manner. BVA has a full-time training
coordinator who, in close coordination with BVA's Chief Counsel for
Policy, is responsible for scheduling and organizing BVA training
events, which usually average about twice a month. Training on various
topics related to computer-assisted legal research also is periodically
scheduled by BVA's librarian. Additionally, the BVA sends individually
selected employees to management and leadership training courses
provided by the Office of Personnel Management and the Federal
Executive Institute.
With respect to BVA training provided to VLJs and attorneys, it can
be broken down into the following five categories: 1) critical skills
training; 2) current issues and competency training; 3) specialized
skills training; 4) leadership/management development training; and 5)
mandatory training. Examples of training provided within each of these
categories include:
Critical Skills Training
Writing Training--Periodically provided to upgrade
writing skills. At the beginning of 2006, BVA initiated a writing
skills program entitled the ``4-Cs,'' short for clear, concise,
coherent, and correct decision writing. This training addressed a
number of matters, including the increasing length of BVA decisions
due, in part, to long recitations of fact and boilerplate summaries of
the law, and reasons or bases deficiencies in BVA decisions.
Legal Research--Initial training is offered to new
employees and product upgrade/enhancement training is offered on an
ongoing basis to the entire attorney and VLJ staff concerning the use
of computer-assisted legal research tools.
Current Issues and Competency Training
Educational Seminars--Seminars of a medical and legal
nature are offered monthly (approximately 10 per year) and range in
length from 1-hour to an hour and a half. Participation is voluntary.
Examples of some recent topics covered are: adjudicating Gulf War
claims; rating residuals of gunshot wounds; adjudicating medical
reimbursement claims; rating eye disorders; understanding military
records and awards; adjudicating Section 1151 claims; adjudicating
Section 1318 claims; aggravation of disabilities, rating disabilities
of the spine, evaluation of lay evidence, presumptive service
connection, and introduction to medical terminology.
Grand Rounds--Periodic Grand Rounds training sessions are
provided for all VLJs and staff counsel. Attendance is required. The
purpose of these training sessions is to keep the legal staff current
with continuing changes in the law, to address areas of weakness in BVA
decision quality, and to address current ``hot'' issues.
Specialized Skills Training
Income Verification Match--This is required for selected
attorneys and VLJs who handle cases that include protected tax
information.
Leadership/Management Development Training
Office of Personnel Management
Federal Executive Institute
Leadership VA
VA Learning University sponsored leadership training
Mandatory Training
Privacy Policy
Cyber Security Awareness
Federal Employee Antidiscrimination and Retaliation Act
(No FEAR)
Prevention of Sexual Harassment
Ethics
Question 2: You stated in your testimony that on the last two days
of the traveling board your staff attorneys give training and
assistance to regional office staff. Is this training standardized and
how is it administered?
Response: With respect to BVA's participation in regional office
training, BVA conducts training for regional office (RO) adjudication
staff both during travel board visits and by way of videoconference.
Over the past few years, we have conducted numerous such sessions of
varying length on a variety of medical and legal subjects designed to
reduce remands and improve quality.
During travel board trips, the attorney staff who are sent to
assist the VLJs, as well as some of the VLJs, meet with RO staff to
answer questions, discuss shared areas of concern, and provide training
when requested. Such interactions are mutually beneficial to both
organizations in reducing remands and ensuring cases are fully and
properly developed and processed.
Prior to a travel board, the attorney assigned to the trip contacts
the RO to determine possible formal training topics and to offer
informal training and assistance. Based on the reports received from
travel boards conducted during fiscal 2007, BVA attorneys have provided
informal training to the RO staff during 116 of the 123 travel boards.
Informal training consists of case reviews, determinations of adequacy
of development, recent U.S. Court of Appeals for Veterans Claims (CAVC)
cases, trends noticed in hearing cases, and tips to reduce avoidable
remands. Informal training is usually provided on a one-on-one basis
with rating veterans' service representatives, decision review
officers, and adjudication managers. Formal training, on the other
hand, was provided during 76 of the 116 trips, or 66 percent of the
time. While training topics vary, the most common topics addressed by
BVA staff this year were matters related to post traumatic stress
disorder (PTSD) service connection claims, VCAA notification, when a VA
examination is required, and the discussion of recent CAVC decisions. A
complete list of the training topics addressed and at particular ROs is
attached.
For purposes of comparison, based on the reports received from
travel boards conducted during fiscal 2006 that were BVA attorneys
provided informal training during 109 of the 114 travel boards trips.
With respect to formal training, this occurred during 62 of the 109
trips, or 57 percent of the time. The most common training topics
addressed were PTSD service connection claims, VCAA notification,
discussion of recent CAVC decisions (Kent, Dingess, Haas), when a VA
examination is needed, application of the presumptions of aggravation
and soundness, and assignment of effective dates. A complete list of
the training topics addressed and at which particular ROs is attached.
Besides training conducted during travel board trips, BVA also
provides training to the ROs by way of videoconference. This training
is conducted by BVA's four decision teams to ROs located in that team's
geographic region of the country. This type of training was conducted
fairly frequently in the past, but less so in recent years. However,
the BVA has recently started to see an upswing in the number of
requests being received from RO staff to conduct this type of training.
During fiscal 2006 and 2007, the following training has been conducted:
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
July 2006 Decision tree for rating knee disabilities (New Orleans, Little Rock,
Jackson, Atlanta, Montgomery, St. Petersburg, Nashville and San Juan)
----------------------------------------------------------------------------------------------------------------
July 2006 Local reasons for remand trends (Louisville)
----------------------------------------------------------------------------------------------------------------
August 2006 New and material evidence, Kent VCAA notice, and clear and unmistakable
error. (Hartford)
----------------------------------------------------------------------------------------------------------------
September 2006 Evaluating back disabilities (New Orleans, Little Rock, Jackson,
Atlanta, Montgomery, St. Pete and San Juan) (Nashville--training
materials only)
----------------------------------------------------------------------------------------------------------------
September 2006 Medical examinations and opinions; rating knee disabilities
(Louisville)
----------------------------------------------------------------------------------------------------------------
October 2006 Adjudicating Nehmer claims (New Orleans, Jackson, St. Pete, Montgomery,
Atlanta, and San Juan) (Jackson and Nashville--training materials only)
----------------------------------------------------------------------------------------------------------------
October 2006 Earlier effective dates (Houston)
----------------------------------------------------------------------------------------------------------------
November 2006 VCAA duty to notify; duty to assist--obtaining medical and service
records; due process issues; requesting VA examinations (San Diego)
----------------------------------------------------------------------------------------------------------------
December 2006 Questions & answers (Boise)
----------------------------------------------------------------------------------------------------------------
December 2006 Evaluating evidence (Louisville)
----------------------------------------------------------------------------------------------------------------
January 2007 VA medical examinations and opinions (St. Pete, New Orleans, San Juan,
Montgomery, and Atlanta) (Nashville--training materials only)
----------------------------------------------------------------------------------------------------------------
January 2007 Special monthly compensation; competency and credibility of lay
statements; VCAA duty to notify; local reasons for remand trends; VA
medical examinations (Salt Lake City)
----------------------------------------------------------------------------------------------------------------
February 2007 VA medical examinations and opinions (Little Rock)
----------------------------------------------------------------------------------------------------------------
February 2007 Earlier effective dates; VA medical examinations and opinions;
secondary service connection claims, including for alcohol abuse;
service connection for ``tension type'' headaches; benefit of the doubt/
reasonable doubt standard (Phoenix)
----------------------------------------------------------------------------------------------------------------
March 2007 VA medical examinations and opinions (Jackson--awaiting delivery of new
equipment)
----------------------------------------------------------------------------------------------------------------
March 2007 Rating skin disorders; periodontal disease; claims for service
connection based on aggravation; adjudicating new and material evidence
claims; weighing non-medical evidence when rating mental and
musculoskeletal disorders; VA medical examinations and opinions; duty
to assist/additional records requests (Ft. Harrison)
----------------------------------------------------------------------------------------------------------------
April/May 2007 Weighing and evaluating evidence (New Orleans, Little Rock, Jackson,
Atlanta, Montgomery, St. Pete, Nashville and San Juan)
----------------------------------------------------------------------------------------------------------------
May 2007 New and material evidence (Louisville)
----------------------------------------------------------------------------------------------------------------
May 2007 Common reasons for remand; Haas v. Nicholson; when to obtain a VA
examination; when to issue a supplemental statement of the case
(Seattle, Boise)
----------------------------------------------------------------------------------------------------------------
May/June 2007 VA examinations; what is the proper way of requesting a VA examination/
opinion; VA examinations--duty to assist for service connection claims;
VA examinations--duty to assist for increased rating claims; discussion
of McLendon v. Nicholson, 20 Vet. App. 79 (2006) (Newark, Boston,
Buffalo, Providence, Columbia, Togus, Baltimore, Roanoke, Winston-
Salem, Huntington, New York, Pittsburgh, Hartford, Manchester)
----------------------------------------------------------------------------------------------------------------
June 2007 Aggravation of disabilities; presumption of soundness; presumption of
aggravation; 38 C.F.R. 3.310; application of Allen v. Brown (Hartford,
Columbia, Boston, Buffalo, Baltimore, Newark)
----------------------------------------------------------------------------------------------------------------
June 2007 Common reasons for remand; McClendon v. Nicholson; development of PTSD/
sexual assault claims (Los Angeles, San Diego)
----------------------------------------------------------------------------------------------------------------
July 2007 Rating gunshot wound residuals (Denver, San Diego)
----------------------------------------------------------------------------------------------------------------
August 2007 PTSD stressors for Iraq veterans; impact of Pentecost v. Principi
(White River Junction, New York, Manchester, Hartford, Buffalo,
Philadelphia, Newark, Boston)
----------------------------------------------------------------------------------------------------------------
September 2007 Rating back disabilities (Louisville)
----------------------------------------------------------------------------------------------------------------
September 2007 Rating gunshot wound residuals (Salt Lake City, Anchorage, Oakland,
Sacramento)
----------------------------------------------------------------------------------------------------------------
Finally, besides the training that is provided during travel board
trips and by way of videoconference, BVA regularly responds to informal
requests received from RO staff for our views and suggestions on a wide
variety of case-related legal and medical Issues.
Question 3: We all know how it is difficult to retain attorneys
here in Washington, DC. Why couldn't we place the board into satellite
offices that could look at cases regionally? There may not be as much
of a problem finding attorneys in other parts of the country and we all
know that space would be cheaper than downtown Washington, DC. What are
your thoughts on this idea?
Response: Our ability to obtain or retain attorneys has not been
impaired by our location in Washington, DC. To the contrary, we believe
our location in Washington, DC, enhances our ability to draw from an
extremely well-qualified attorney applicant pool. Our recent efforts to
fill attorney positions illustrate this point. When we advertised for
30 attorney positions this summer, we received over 350 applications,
most from highly qualified candidates. We were in the enviable position
of being able to offer employment to only the most highly-qualified
applicants.
The question as to whether to regionalize BVA into satellite
offices has been thoroughly considered in the past, most recently by
the Government Accountability Office (GAO) in 2003. While the GAO did
not issue a final report of this study, its research indicated that the
difficulties associated with the decentralization process far outweigh
the benefits of regionalization.
Because BVA is centralized at a single office in Washington, DC,
BVA:
Recruits from a pool of highly qualified attorneys and
administrative professionals, while retaining some of our most highly
qualified employees, who would be unwilling or unable to relocate if
regionalization were to occur;
Instantly communicates and discusses important legal and
administrative issues with our judges, counsel and administrative
staff, ensuring consistency of decisionmaking and administrative
processes, such as the mailing of decisions;
Maintains collegiality of, and uniform and consistent
training for, our attorneys and judges;
Achieves economies of scale from centralized resources to
realize the most efficient workload distribution, as well as the
flexibility to immediately readjust work flow as necessary to achieve
optimum performance;
Achieves the most efficient and cost-effective mechanisms
for case and hearing management, while avoiding the costs and risks
associated with file transfers to remote locations;
Achieves the most efficient and beneficial use of
professional and administrative employees, as well as the best means to
ensure uniform opportunities for employee development and training;
Preserves our independence and integrity as a quasi-
judicial body, which would be compromised if we were co-located with
the offices whose decisions we review on appeal.
With respect to your concerns about the availability of affordable
work space in Washington, DC, the Department has expanded BVA's
allocation of office space in the Lafayette Building, where the BVA has
been located for many years. The Department is considering a further
expansion of space in the near future. In addition, BVA has maintained
a highly successful Flexiplace program, which allows up to 88 employees
to work at home for part of the week and to use shared space on the
alternate days that they are in the office. This ``hoteling''
arrangement maximizes the use of existing space, improves employee
morale, contributes to reducing the commuting burden in the local area,
but still ensures the effective accomplishment of our mission.