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Witness Testimony of Richard Paul Cohen, National Organization of Veterans Advocates, Inc., President

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 § 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 service members 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 two years for a veteran to get a decision from the BVA on an appeal of a denied claim.  This two-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. (http://www.va.gov/Vetapp/ChairRpt/BVA2006AR.pdf).

Moreover, after waiting over two 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 six years, the most common decision veterans have received from the BVA after waiting over two years is a denial of the claim.

Fiscal year

Days from appeal to decision

Total number of decisions

Decision on the merits[1]

denials

Fiscal Yr Comm’er
Report[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

17160

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

 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% of BVA’s denials have been affirmed by the Court:[3]                                                                                   

Fiscal year

BVA denials

CAVC appeals

CAVC non-writ merits decisions

BVA affirmed

2006

18,107

3,729

2079

21%

2005

13,032

3,466

1209

22%

2004

9,300

2,234

1278

12%

2003

10,228

2,532

2090

6%

2002

8,606

2,150

818

13%

2001

8,514

2,296

2778

1%

2000

14,080

2,442

1556

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 D.C., 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 1960s, 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 § 7102(b), the BVA began holding hearings both in Washington D.C., 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, § 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% of the time.  See Observations 3 and 4, supra.   Nevertheless, the BVA claims a 93% accuracy rate regarding the decisions it issues.  See Report of the Chairman of the Board of Veterans Appeals, Fiscal Year 2006, p.3. http://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 timely basis “will present a challenge”. Report of the Chairman of the Board of Veterans Appeals, Fiscal Year 2006, p.16. http://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 in-house panel which considers among other things legal analysis, timeliness of decisions and productivity.  38 USC § 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 5 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 3.5 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.


[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 http://www.va.gov/vbs/bva/annual_rpt.htm.

[3] See http://www.vetapp.uscourts.gov/documents/Annual_Reports.pdf.