Joint Hearing of the Committee on Homeland Security and Governmental Affairs of the U.S. Senate and the Committee on Veterans’ Affairs of the U.S. House of Representatives at 1:00 p.m. CDT.
Submission For The Record of National Organization of Veterans’ Advocates
The National Organization of Veterans' Advocates, Inc. (NOVA) thanks Committee Chairman Runyan and Ranking Member Titus for the opportunity to offer our perspective on the breakdown in the VA’s current appeals process. NOVA is honored to share our views and offer solutions for this hearing.
NOVA is a not for profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993. NOVA represents nearly 500 attorneys and agents assisting tens of thousands of our nation's military Veterans, their widows, and their families obtain benefits from VA. NOVA members represent Veterans before all levels of the VA’s disability claim process. This includes the Veterans Benefits Administration (VBA), the Board of Veterans’ Appeals (BVA or Board), the U.S. Court of Appeals for Veterans Claims (Veterans Court or CAVC), and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In 2000, the CAVC recognized NOVA's work on behalf of Veterans when the CAVC awarded the Hart T. Mankin Distinguished Service Award.
NOVA’s Previous Suggestions for Improvement
On February 11, 2009, NOVA testified before the Senate Committee on Veterans’ Affairs regarding the problems in the VA’s claim adjudication process. Later that same year, on May 14, 2009, NOVA testified before the Subcommittee on Disability Assistance & Memorial Affairs of the House Committee on Veterans’ Affairs on the topic of “Examining Appellate Processes and their Impact on Veterans.” For the sake of brevity, we incorporate NOVA’s previous testimonies herein by reference and crave the Committee’s attention to such. In NOVA’s previous testimonies, NOVA provided its perspective on the appeals process as it exists within the regional offices, BVA, and CAVC. NOVA also suggested improvements to the process. This testimony will focus and elaborate on one of those suggestions -- amending 38 U.S.C. § 7105 to provide that the veteran must file only one document to appeal from a regional office decision to the BVA.
Roadmap of the VA’s Current Appellate Process
After a veteran files an application for benefits -- referred to as a “claim” -- the servicing VA regional office issues the initial decision. If the veteran disagrees with any part of the decision, the veteran may file an appeal with the regional office, and, if the regional office does not grant the veteran’s appeal, the veteran may continue his appeal to the BVA. For a dissatisfied veteran to get an appeal from the regional office to the BVA, 38 U.S.C. § 7105 currently requires the veteran to file two different appeals at two different stages in the process.
To appeal an initial rating decision, the veteran must file a notice of disagreement (NOD) within one year from the date the decision was issued. In response to this first appeal—the NOD, the regional office will issue one of two decisions. If granting the veteran’s appeal, the regional office will issue another rating decision. If denying the veteran’s appeal, the regional office will issue a Statement of the Case (SOC). Although the SOC will contain a verbatim copy of any applicable statutes and regulations, many times the SOC’s reasons or bases for the VA’s continued denial of benefits is simply a reiteration of the appealed rating decision. Our experience has been that SOCs are not helpful to the vast majority of veterans. However, if after receiving an SOC the veteran wants to continue his appeal to the BVA, the veteran must file a VA Form 9, Appeal to Board of Veterans’ Appeals, within 60 days from the date the SOC was issued or within one year from the date the initial rating decision was issued. On the VA Form 9, the veteran is encouraged to explain why he or she disagrees with the VA’s statement of reasons or bases in the SOC. If the veteran does not file both the NOD and VA Form 9, there will be no perfected appeal to the BVA.
After a veteran files a VA Form 9, the regional office must certify the appeal to the BVA and transfer the case, as well as jurisdiction of such, to the BVA for further adjudication. Although the veteran must file the NOD and VA Form 9 within certain statutes of limitations as mentioned above, there are no statutes or regulations mandating how quickly the regional office or BVA must respond to or certify a veteran’s appeal.
Breakdown in the Appellate Process
When NOVA testified in 2009, the BVA had reported in its 2008 Annual Report that it took VA an average of 218 days to issue an SOC in response to a veteran’s NOD. The Board further reported that, because of the continuous filing of over 4,000 new appeals, it took an average of 446 days from the initial filing of an appeal to the ultimate disposition of the appeal.
In fiscal year 2012, VA received 121,786 NODs. However, the number of SOCs that were processed by the VBA was only 76,685. As a result, the number of NODs awaiting disposition increased by 76 percent from fiscal years 2009 to 2012 and, during that period, the time it took VA to process an SOC increased by 57 percent from 293 days to 460 days on average. A 2012 VA Office of Inspector General report noted that VA regional office managers did not assign enough staff to process appeals, diverted staff from processing appeals, and did not ensure that their appeal-staffs acted on appeals promptly because, in part, those staff members were assigned responsibilities to process initial claims, which were given a higher priority. As of August 2012, after the veteran filed his or her second appeal -- VA Form 9 -- it took an average of 560 days for VA regional offices to certify and transfer the appeal to the BVA. The 2012 Annual Report of the Chairman of the Board of Veterans’ Appeals indicated that average elapsed processing time after an appeal was certified and transferred to the Board was 251 days.
Based on the BVA Chairman’s 2012 report, the average elapsed processing times are as follows:
460 days for a veteran to receive an SOC after filing a NOD.
40 days for a veteran to file a VA Form 9 after receiving an SOC.
692 days for the regional office, after receiving a veteran’s VA Form 9, to certify and transfer the appeal to the BVA.
251 days for the BVA to make a decision after receiving the veteran’s appeal from the regional office.
Thus, from the time the veteran files the first appeal -- the NOD -- he or she waits on average a total of 1,443 days to receive a decision from the BVA on that appeal. That is 17 days shy of four years a veteran must wait for resolution of an appeal!
NOVA’s Suggested Repair to the Process
In May 2009, NOVA testified and recommended that Congress amend 38 U.S.C. § 7105 to provide that the veteran must file only one request for appeal. This statute has been in effect since 1958. See P. L. 85 857, § 1, 72 Stat. 1241, Sept. 2, 1958. The U.S. Court of Appeals for Veterans Claims was created in 1989. Thus, prior to the Court’s creation, VA operated without judicial review. The advent of judicial review has eliminated the need for redundant appeals at the VA’s administrative level. Therefore, the VA’s appeal statute should be amended to require only the filing of a NOD and nothing more. Such an amendment would eliminate the VA’s requirement to issue an SOC and the veteran’s need to file VA Form 9 to reiterate and reaffirm his/her appellate desires.
As the above-referenced statistics confirm, significant delays continue in the time taken by VA to process an SOC and certify an appeal to the BVA. NOVA’s proposal to amend the provisions of § 7105 to remove the requirements for the issuance of an SOC and the subsequent filing of a second notice of an intent to appeal (VA Form 9) would eliminate these time delays in the appeal process. It will obviously save time following the submission of a NOD to transfer this first appeal directly to the BVA without further pleadings, unless the veteran requests review by a Decision Review Officer (DRO) at the VA’s regional office.
In 2001, VA established the DRO process as an alternative appellate review at the regional office level. Currently, a veteran must actively elect the DRO process if he or she desires such review; otherwise, the veteran’s appeal is processed by the traditional appeals process, which means a staff member of the regional office’s appeals team—and not a DRO— reviews the veteran’s appeal. DRO adjudicators are the VA’s most experienced adjudicators and have the same de novo review authority as do the 60 Veterans Law Judges of the BVA. If a veteran chooses the DRO review process, a DRO conducts a de novo review of the claim, meaning a new and complete review of the claim and evidence without deference to the original decision. A DRO may make a new decision based upon his or her review of new evidence or by finding a clear and unmistakable error in the previous decision. Also, the DRO may make a new decision simply due to a difference of opinion and without receiving new evidence or finding a clear and unmistakable error in the previous decision. See GAO, Veterans Disability Benefits: Clearer Information for Veterans and Additional Performance Measures Could Improve Appeal Process, GAO 11 812 (Washington, D.C. September 29, 2011). Currently, if the veteran elects the DRO process, the DRO is the decision maker who will issue another rating decision or SOC.
If § 7105 is amended to eliminate the requirements for the issuance of an SOC and the filing of a VA Form 9, the appeals team at a VA regional office will be able to redirect staff and resources to tackling the backlog of appeals as opposed to processing additional and redundant appeal paperwork. For example, VA could better use its DROs within the appeals process and avoid unnecessary appeals to the BVA. By eliminating the SOC and VA Form 9 requirements, the DROs would have more time to review all NODs filed by veterans and either resolve the appeals favorably or certify the appeals directly to the BVA without taking additional time to issue an SOC and wait for the veterans to file a VA Form 9. Also, Congress’ expectation is that VA will “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” See H.R. Rep. No. 100 963, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5794 95. However, at present, the single most prevalent reason for remands from the Board and the Court is for further development of the claim by VA. DROs have the authority to reduce the need for such remands by ordering the development of a claim that was not fully and sympathetically developed to its optimum before it was decided on the merits.
By amending § 7105 as suggested, VA could also redirect staff and resources to processing appeals that are remanded by the Board or the Court. Veterans whose cases have been remanded have been waiting the longest for resolution of their appeals. Per 38 U.S.C. § 7112, the Secretary must “provide for the expeditious treatment by the BVA of any claim that is remanded to the Secretary by the Court of Appeals for Veterans Claims.” At the BVA, an office or team is designated to processing appeals remanded from the Court to the BVA, and this process does seem to streamline Court remands and result in quicker BVA decisions on such appeals. However, many times, appeals remanded by the Court to the BVA are, in turn, remanded by the BVA to a regional office. Also, 46 percent of claims appealed to the BVA are remanded to a regional office. Per section 5109B, the Secretary must also “provide for the expeditious treatment by the appropriate regional office . . . of any claim that is remanded to a regional office . . . by the BVA.” It appears, however, that cases remanded to a regional office do not receive priority ahead of other appeals being processed by a regional office. Thus, these appeals do not receive expeditious treatment as dictated by law.
NOVA proposes amending 38 U.S.C. § 7105 to provide that the veteran must file only one document for appeal, the NOD, in order to reduce the delays extant in the VA appeal process. Redundant appeals at the VA’s administrative level do not serve the interests of our veterans and their families. An expedited appeal process is needed to reduce unnecessary delays. The current delays can be eliminated by streamlining the VA’s appeal process. It is unacceptable that veterans die while waiting for their appeal to be resolved. The statistics document the delays inherent in the existing statutory scheme. That scheme must be amended in order to permit VA to meet this country’s commitment to those who have born the burden.
NOVA respectfully requests that the Committee consider our proposal to amend the provisions of § 7105 to remove the requirements for the issuance of an SOC and the subsequent filing of a second notice of an intent to appeal (VA Form 9). NOVA submitted this proposal in 2009 and here we are again in 2013. Four years have gone by and the fact remains the same: one request for appeal is enough. Clearly, now is the time to redirect staff and resources to eliminating the backlog of appeals, before precious time runs out for our veterans. At this point, it is a matter of both urgency and necessity.
As always, NOVA stands ready to assist the Committee or VA in whatever way possible to further eliminate the unreasonable systemic delays that negatively affect the lives of our nation’s veterans and their families.
We thank you for this opportunity to provide our testimony.