Witness Testimony of Barton F. Stichman, National Veterans Legal Services Program, Joint Executive Director
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 decision-making. 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% 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 of 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 U.S.C. § 7104(d).
The Board has consistently been called to task by the Court for faulty explanations that violate 38 U.S.C. § 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 U.S.C. § 5107(b) and 38 C.F.R. § 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. Nicholson19 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 decision-making and its assessment is that Board decisions are 93% 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. How can it be that year in and year out the Court consistently concludes that well over 50% 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% of Board decision-making is inaccurate?
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 done years earlier – send the case back to the RO to obtain additional evidence.
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 of 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 decision making 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% 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 decision-making process at the VA regional offices. But if one were forced to ignore the needed reformation of this initial decision-making process, then providing adequate financial resources to the AMC should be a high legislative priority.
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 decision-making. Thus, it does not necessarily follow that the Board's overall error rate is 77.7%.
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.