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Witness Testimony of Barton F. Stichman, Joint Executive Director, National Veterans Legal Service Program

EXECUTIVE SUMMARY

National Veterans Legal Services Program (NVLSP) is a nonprofit veterans service organization.  NVLSP’s views on the Veterans Appeals Improvement Act of 2011 (H.R. 1484) and the Veterans’ Choice in Filing Act of 2011 (H.R. 1647) are informed by the widespread frustration and disappointment in the VA claims adjudication system experienced by disabled veterans.  

NVLSP supports the proposed legislation that would waive Regional Office (RO) jurisdiction over new evidence submitted after a veteran has filed a substantive appeal but before the case is certified to the BVA. The average delay between a veteran filing a substantive appeal and the case being certified to the BVA can exceed one and half years.  A primary culprit of this unreasonable delay is VA’s policy with respect to evidence submitted during this period: VA sends the new evidence and the claims file back to the RO for consideration and preparation of a new decision. Section 2 of the Veterans Appeals Improvement Act of 2011 would change this policy to the benefit of veterans, while preserving the ability of a veteran to request RO consideration of evidence, should he or she so desire.

NVLSP also supports the proposed legislation that would create a Veterans Judicial Review Commission.  Of the appeals decided by the CAVC in 2009, it found reversible or remandable error in more than 60 percent of the BVA’s decisions.  The errors by the BVA include inaccurately stating or applying the facts or the law and/or failing to adequately explain its decision.  The high percentage of wrongly decided cases demonstrates that improvements must be made in the BVA’s accuracy, fairness, and transparency.  Section 3 of the Veterans Appeals Improvement Act of 2011 would aid in achieving this goal.

NVLSP also supports giving the CAVC and Court of Appeals for the Federal Circuit (Federal Circuit) clear class action authority.  The benefit of class actions is that they conserve the resources of the government and the courts, serve as a mechanism for identifying affected individuals, and help ensure that the government treats all similarly situated individuals in the same way.  That said, NVLSP maintains that a Commission – as contemplated by Section 3 – to explore the viability of granting class action authority is not necessary.  The need is clear now.  

Finally, NVSLP supports the creation of a pilot program to allow a veteran whose local RO has “below average performance” to file his or her claim in a different RO.  Many VA adjudicators are inadequately trained and many ROs are improperly managed and inadequately staffed.  Section 2 of the Veterans’ Choice in Filing Act of 2011 would provide veterans an alternative to filing in an RO plagued by these inadequacies.  That said, NVLSP maintains that Section 2 should specify that a veteran who chooses a different RO will not have to travel for VA medical examinations or hearings.  Section 2 also should include specific guidelines to inform the Secretary of Veterans Affairs in his selection of ROs with “below average performance,” as well as a mechanism to review his selections.

NVLSP thanks you for the opportunity to express its views.


Thank you for the opportunity to present the views of the National Veterans Legal Services Program (NVLSP) on the bills entitled the “Veterans Appeals Improvement Act of 2011” (H.R. 1484) and the “Veterans’ Choice in Filing Act of 2011” (H.R. 1647).  As explained below, NVLSP strongly supports (1) creating a Commission to investigate methods to improve the efficiency and fairness of the appeals process, (2) giving clear class action authority to the Court of Appeals for Veterans Claims (CAVC) and Court of Appeals for the Federal Circuit (Federal Circuit), and (3) implementing a pilot program giving veterans the option to file their claims in a better-performing VA Regional Office (RO).

NVLSP is a nonprofit veterans service organization founded in 1980.  Since its founding, NVLSP has represented thousands of claimants before the Board of Veterans’ Appeals (BVA) and the CAVC, as well as the Federal Circuit and other Federal courts.  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 BVA decision to the CAVC without a representative.  In addition to its activities with the 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 Department of Veterans Affairs (VA) claimants. 

My testimony today is informed by the widespread frustration and disappointment in the VA claims adjudication system experienced by disabled veterans and their survivors.  They face a number of serious challenges at both the BVA and the CAVC.  We believe that the proposed Commission and pilot program, as well as giving class action authority to the CAVC and Federal Circuit, would make the process both more efficient and fairer to those who have served our country.

I. The Veterans Appeals Improvement Act of 2011

A. Section 2: Addressing Waiver of RO Jurisdiction Over Evidence Submitted After the Substantive Appeal

One of the reasons for the unreasonably long delays that occur in VA decision-making is the time it takes for VA to forward an appeal to the BVA for a decision.  This interval occurs after the veteran files his or her claim, the RO issues a decision denying the claim, the veteran files a notice of disagreement with the RO decision, the RO issues a statement of the case (SOC), and the veteran files a substantive appeal.  The BVA reported in its Report of the Chairman for Fiscal Year 2010 that it took an average of 609 days (one year and eight months) after the filing of the substantive appeal for the RO to “certify” the appeal, or forward the VA claims file to the BVA for a decision.  

A primary cause for this large time lag is the legal requirements governing VA’s handling of evidence submitted by the veteran after the substantive appeal but before certification to the BVA. While veterans wait for their cases to be sent to the BVA, they often decide to submit additional evidence in support of their claims.  Since they have already appealed to the BVA, they often assume that this evidence will go to, and be reviewed by, the BVA. To the contrary, VA is required, upon submission of new evidence during this time period, to send the case to an RO adjudicator for review of both the new evidence and the claims file and preparation of a new decisional document, called a Supplemental Statement of the Case (SSOC).  If the veteran submits still additional evidence after the SSOC, the case is again sent to an RO adjudicator for review and preparation of yet another SSOC. In some cases, VA has taken the time to prepare four or more SSOCs before the case is forwarded to the BVA for a decision.  

Section 2 of the bill would change this VA requirement, to the benefit of the veteran and VA. It would mandate that any evidence submitted after a certain point in the process is forwarded directly to the BVA for review, unless the veteran or his representative specifically requests that it go to, and be reviewed by, the RO first.  NVLSP strongly supports this change, as it will bring the process more in line with the expectations of veterans and will help alleviate the delay and waste of judicial resources that currently plagues the BVA appellate process.

NVLSP also notes that submission of the substantive appeal is the appropriate point in the process at which to transfer jurisdiction over new evidence to the BVA.  At that point, the veteran has had the opportunity to exercise his or her right to a hearing before a Decision Review Officer and has received an SOC.

B. Section 3: Addressing Creation of a Veterans Judicial Review Commission and the Need for Class Action Authority

Another cause of the unreasonable length of time it takes for veterans to obtain relief, and the attendant frustrations of said veterans, is the high number of errors made by the BVA.  The CAVC reported in its Annual Report for Fiscal Year 2009 that, of the 4,379 cases it decided, it “affirmed or dismissed in part, reversed/vacated & remanded in part” 498 cases; “reversed/vacated & remanded” 397 cases; and “remanded” 1,758 cases.  This means that, of those cases that the veteran or his survivors appealed to the CAVC, the BVA decision is vacated in more than 60 percent of the cases.  Most of these remands are due to administrative error by the agency (rather than merely a post-decisional change in law). These mistakes often include an inaccurate recitation and application of the facts or law and/or an inadequate statement of the BVA’s rationale for its decision.  Additionally, veterans advocates have noted that a decision from one Veterans Law Judge may differ substantially from a decision by another based on similar facts.  In those cases requiring remand for additional development or explanation, a subsequent appeal to the CAVC may be necessary. 

Given the high percentage of BVA decisions requiring reversal or remand, the creation of a Veterans Judicial Review Commission to evaluate, and make recommendations for the improvement of, the accuracy, fairness, transparency, and predictability of the BVA review process is necessary. Therefore, NVLSP strongly supports the creation of a Commission for this purpose.

A third reason for the longstanding delays and inefficiency in the VA adjudication system derives from the fact that neither the CAVC nor the Federal Circuit has clear authority to certify a veteran’s lawsuit as a class action.  When Congress enacted the Veterans’ Judicial Review Act (VJRA) in 1988, it inadvertently erected a significant roadblock to justice. Prior to the VJRA, U.S. District Courts of Appeal had authority to certify a lawsuit challenging a VA rule or policy as a class action on behalf of a large group of similarly situated veterans.  See, e.g., Nehmer v. U.S. Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Giusti-Bravo v. U.S. Veterans Administration, 853 F. Supp. 34 (D.P.R. 1993). If the district court held that the challenged rule or policy was unlawful, it had the power to ensure that all similarly situated veterans benefited from the court’s decision.

The ability of a veteran or veterans organization to file a class action ended with the VJRA. In that landmark legislation, Congress transferred jurisdiction over challenges to VA rules and policies from district courts (which operate under rules authorizing class actions) to the Federal Circuit and the newly created CAVC.  In making this transfer of jurisdiction, Congress failed to clearly address the authority of the CAVC and the Federal Circuit to certify a case as a class action.  As a result of this oversight, the CAVC has ruled that it does not have authority to entertain a class action (see Lefkowitz v. Derwinski, 1 Vet. App. 439 (1991)), and the Federal Circuit has indicated the same (see Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002).

The benefit of class actions in litigation against the government is that they conserve the resources of the government and the courts and help ensure that the government treats all similarly situated individuals in the same way.  Class actions are typically used by courts to resolve efficiently a legal issue that affects a large number of similarly situated individuals. There are literally hundreds of individual VA rules and policies that affect the entitlement to VA benefits for a large number of VA claimants.  From time to time, a VA claimant will file an appeal at the CAVC or the Federal Circuit that challenges the legality of one of these rules or policies.  Injustice and inefficiency result from the fact that these courts do not have class action authority.

A pertinent example is the lawsuit filed by NVLSP and the Military Order of the Purple Heart in the Federal Circuit challenging VA directive (Fast Letter 07-19) issued on August 27, 2007. This Fast Letter instituted a new decision-making process for the adjudication of certain claims involving a large amount of benefits.  

The Fast Letter required VA, in any case in which an RO awarded a veteran more than $250,000 in benefits or awarded eight or more years of retroactive benefits, to withhold its award decision from the veteran and representative and to send it to Washington, D.C., for a review by the Compensation & Pension Service.  No RO decisions denying a large amount of benefits were subject to the Fast Letter.  The Compensation & Pension Service would then decide the claim anew.  If it disagreed with the RO award of a large amount of benefits, it would order the RO to rewrite the decision to comply with the Compensation & Pension Service’s view and then send the rewritten decision to the veteran and representative. The RO had to destroy or discard the initial favorable decision and the instructions of the Compensation & Pension Service that caused the denial.

On September 10, 2009, the Federal Circuit ruled that the Fast Letter procedure, “whereby certain regional office decisions are redetermined by the Compensation & Pension Service . . . without the knowledge and participation of the claimant, does not comply with the extant Regulations, and that [VA’s] promulgation [of the Fast Letter without public notice and comment violated] the Notice and Comment provisions of the” Administrative Procedure Act.  As such, the Federal Circuit invalidated the Fast Letter.  VA then ordered a halt to Compensation & Pension Service review of RO awards of a large amount of benefits. Military Order of the Purple Heart of the USA and National Veterans Legal Services Program v. Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009).

The problem with the judicial resolution of this case is that for two full years – from August 2007 to September 2009 – the Compensation & Pension Service had been allowed to continue to review RO decisions awarding a large amount of benefits.  In fact, over 800 large awards were reviewed, and in more than 50 percent of these cases the large award was overturned by the Compensation & Pension Service.  The hundreds of veterans who were each denied hundreds of thousands of dollars in disability benefits cannot identify themselves as entitled to the benefits initially granted by the RO and validated by the Federal Circuit’s decision.

If the courts had class action authority, this injustice and inefficiency would not occur.  As soon as NVLSP and the Military Order of the Purple Heart filed suit, the court could certify the case as a class action, order the Compensation & Pension Service to halt its review until the court could consider the legality of the Fast Letter, and order VA to keep track of the identity of each of the veterans subject to the Fast Letter. Then, if the court determined that the Fast Letter was illegal, as the Federal Circuit did in this case, it would have authority to order VA to reinstate each of the RO decisions awarding a large amount of benefits.

Justice would thereby be served because the hundreds of veterans who were each illegally denied hundreds of thousands of dollars in benefits under the Fast Letter would actually receive these benefits. VA efficiency would be improved because the scarce resources of the Compensation & Pension Service and ROs would not have been expended in deciding whether to overturn the initial RO decisions, an activity deemed invalid by the Federal Circuit.

Moreover, class actions would be manageable in the CAVC and Federal Circuit.  They are done uniformly in district courts and are considered manageable there.  

For these reasons, NVLSP strongly advocates giving the CAVC and Federal Circuit clear class action authority. That said, NVLSP does not believe that creation of a Commission to evaluate whether to give class action authority – as contemplate by Section 3 of the bill – is necessary.  By the terms of the bill, the Commission would not render a final report until December 31, 2012, more than one and a half years from now.  However, the need for class action authority is clear now. In the interim, cases may arise that are appropriate for certification, and veterans whose rights were abridged (like those discussed above) would be denied justice.

II. The Veterans’ Choice in Filing Act of 2011

A. Section 2: Addressing Creation of a Program to Give Veterans a Choice   of RO in Which to File a Claim

It is clear that the quality of VA adjudications is not satisfactory and is a major contributor to the size of the backlog.  In many cases, claims are improperly denied, VA adjudicators are inadequately trained, ROs are improperly managed, and ROs are inadequately staffed.  Because VA Central Office management has not acted to fix these problems in any meaningful way, veterans and other claimants for VA benefits have to file unnecessary appeals, wait several years for a BVA remand, and wait for VA to obtain evidence that should have been requested during the original adjudication of the claim. These appeals clog the system and create unneeded work for VA.  Of course, it would have been better for the RO to do the work correctly the first time

Given these problems that plague many ROs, NVSLP supports the creation of a pilot program for allowing a veteran whose local RO is deemed to have “below average performance” to file his or her claim in a different RO.  While NVLSP agrees with the legislation, we suggest two additions to the bill.    

First, Section 2 should specify that a choice of non-local RO does not strip the veteran of his or her right to have any VA medical examination or hearing conducted locally.  A veteran who chooses to file his or her claim in an out-of-state RO should not be required to travel for a VA medical examination or hearing.  Requiring travel would be unduly prohibitive to veterans, who are frequently advanced in age and ill in health, and would have a chilling effect on their decisions to choose a different RO.  

Second, Section 2 should include specific guidelines to inform the Secretary of Veterans Affairs (Secretary) in his selection of ROs with “below average performance,” as well as a process to review the Secretary’s selections and rationale.  As the bill is written, the Secretary has complete discretion to choose which five ROs are subject to the pilot program: his choice is not guided by either a stated goal for the pilot program or a recommendation of what constitutes “below average performance.”  The criteria for choosing which ROs qualify should include a quality component based on the RO’s remand and reversal rate at the BVA, as well as the Veterans Benefits Administration’s Systematic Technical Accuracy Review (STAR) report.  

That completes my testimony.  Again, NVLSP appreciates the opportunity to express its views on these important pieces of legislation and thanks you for your continued dedication to veterans.