The Challenges Facing the Court of Appeals for Veterans Claims.
THE CHALLENGES FACING THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
MAY 22, 2007
Printed for the use of the Committee on Veterans' Affairs
SERIAL No. 110-24
U.S. GOVERNMENT PRINTING OFFICE
For sale by the Superintendent of Documents, U.S. Government Printing Office
CORRINE BROWN, Florida
STEVE BUYER, Indiana, Ranking
Malcom A. Shorter, Staff Director
SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS
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
May 22, 2007
The Challenges Facing the U.S. Court of Appeals for Veterans Claims
U.S. Court of Appeals for Veterans Claims, Hon. William P. Greene, Jr., Chief Judge
Prepared statement of Judge Greene
U.S. Department of Veterans Affairs, Hon. James P. Terry, Chairman, Board of Veterans' Appeals
Prepared statement of Mr. Terry
Disabled American Veterans, Brian Lawrence, Assistant National Legislative Director
Prepared statement of Mr. Lawrence
National Organization of Veterans' Advocates, Robert Vincent Chisholm, Past President
Prepared statement of Mr. Chisholm
National Veterans Legal Services, Barton F. Stichman, Joint Executive Director
Prepared statement of Mr. Stichman
MATERIAL SUBMITTED FOR THE RECORD
Follow-up letter, dated June 5, 2007, from the Honorable William P. Greene, Jr., Chief Judge, U.S. Court of Appeals for Veterans Claims, in response to inquiry from Chairman John J. Hall during the hearing
THE CHALLENGES FACING THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
Tuesday, May 22, 2007
U. S. House of Representatives,
Subcommittee on Disability Assistance and Memorial Affairs,
Committee on Veterans' Affairs,
The Subcommittee met, pursuant to notice, at 10:11 a.m., in Room 334, Cannon House Office Building, Hon. John Hall [Chairman of the Subcommittee] presiding.
Present: Representatives Hall, Rodriguez, Hare, Lamborn.
Mr. HALL. Good morning, everyone. First I will ask everybody to rise for the Pledge of Allegiance. The flags are in the front and rear of the room.
[Pledge of Allegiance.]
Mr. HALL. Thank you all for joining us for the House Subcommittee on Disability Assistance and Memorial Affairs hearing on the challenges facing the U.S. Court of Appeals for Veterans Claims (CAVC).
I would first like to thank the witnesses for appearing today before the Subcommittee. I know the issues pertinent to the Court of Appeals for Veterans Claims and the ease of the administration of justice for our veterans is of the utmost importance to you.
I also want to commend Judge Greene of the Court of Appeals for Veterans Claims for the exceptional job he has done with a relatively young bench. He has been successful in increasing the Court's efficiency and productivity through innovative management approaches, especially with the recall of retired judges.
I know that you are also going to benefit from successful efforts by this Committee to increase veterans' funding that will provide additional resources to your office.
You deserve it. You have certainly stepped up to the plate for our veterans and I want you to continue to call on this Subcommittee and this Congress for the resources you need.
However, no one will deny that more needs to be done to create a better system of appellate justice for our veterans. The merry-go-round of the appeals process, from the Regional Office to the Board of Veterans' Appeals to the Court, and the usual ""hamster wheel"" of remands back and forth between the three has turned into a system of injustice for some of our veterans.
Mr. HALL. I would direct everyone's attention to the charts displayed that show the appeals process for veterans' claims. As the retired judges of the Court have indicated in previous statements before Congress, with four levels of appeals, the one administrative to the board and three possible levels of judicial appeal, "This is just more justice than the system can bear."
Also, we would like to submit into the record two news articles in the print media, one from Washington Date Line and one from USA Today about the issue. Hearing no objection, they will be added to the record.
[The articles referenced by Chairman Hall, "Disability Claims Appeals Swamp Veterans Court," USA Today, Gannett News Service, July 13, 2006, by Dennis Camire, and "Some Veterans Die Waiting for Benefits," Washington Dateline, Media General News Service, October 13, 2006, by James W. Crawley, appears in the Appendix.]
First, as you know, the veteran can appeal the Regional Office decision to the Board of Veterans' Appeals, the BVA. This process can take on average two years. From there, the veteran can appeal the BVA decision to the Court of Appeals for Veterans Claims where the average time from filing to disposition is 351 days. From there, an appeal can be made to the U.S. Court of Appeals for the Federal Circuit and from this Court, an appeal can be made to the Supreme Court.
This cycle can repeat itself a few times for veterans in many different variations before final adjudication. The question becomes, at what cost to the administration of justice does this cycle represent for our veterans?
For instance, I know that many take pause with the review of one Federal intermediate appellate court, the CAVC, by another Federal intermediate appellate court, the Federal Circuit Court. I am wondering what is gained by this unique additional bite at the apple.
Additionally, the veterans appeals process is interlaced with vacated and remanded decisions, cases sent back for a new decision or correction resulting in an appeals cavalcade of sorts that ends up creating extensive and unacceptable delays in the adjudication of veterans' claims.
This process adds years to the process and the Subcommittee has been alerted to cases pending on appeal for more than a decade. In fact, many appellants die while waiting for finality in their appeals. At that point, the CAVC appeal usually dies as well with little recourse for surviving dependents, spouses, and estates. This is not the desired result for our veterans' beneficiaries.
I look forward to hearing the witnesses' views on these phenomena of the veterans appeals process. Likewise, I look forward to hearing testimony on ways to improve processes within the Court itself. Particularly I am interested in examining the issue pertaining to expanding the interpretation of prejudicial error which to date has been interpreted as narrowly as possible by the Court.
I am aware in many instances that often for the sake of expediency, the Court will not resolve all issues raised on appeal and will vacate and remand on only one aspect of error raised on brief.
I also realize that the Court by statute is not allowed to make findings of fact or review cases de novo, to weigh BVA or RO findings of evidence and law anew under 38 USC, Section 7261. However, I would like to examine the value of allowing the Court to review cases de novo and make determinations of fact without first remanding to the Board of Veterans' Appeals to supplement the record or to correct the error.
I know the National Veterans Legal Services Program, the National Organization of Veterans' Advocates, and Disabled American Veterans have ideas in this area and I am anxious to explore them.
Lastly, I look forward to hearing from the U.S. Department of Veterans Affairs (VA), represented today by Chairman Terry of the BVA, accompanied by the Mr. Randy Campbell, an Assistant General Counsel with the VA's General Counsel's Office that represents the agency before the Court, on how it can reduce the number of remanded cases by increasing the accuracy of its decision making.
I also would appreciate hearing about problems it sees system-wide and the role it plans to take in lessening the appellate ""hamster wheel"," as they say, for our veterans especially in light of the expected surge in filings by our returning OEF/OIF veterans.
The VA as the gateway in the appeals process as well as the creator of the record that forms the basis for appellate review, should amplify its role in the overall i,mprovement of the benefits claims adjudication process.
Thank you. I would now like to recognize Ranking Member Lamborn for his opening statement.
[The statement of Chairman Hall appears in the Appendix.]
Mr. LAMBORN. Thank you, Mr. Chairman, for recognizing me and I thank you for holding this hearing on the Court of Appeals for Veterans Claims and its role in the efficient processing of the disability compensation claims.
I welcome our witnesses, especially Chief Judge Greene, and thank you all for your contributions to our veterans. The Court has come far since its 1988 founding and by all accounts is largely producing quality decisions.
Judge Greene, you are to be commended for making use of Title 38 and recalling five retired judges to increase your productivity. I note the emphasis you place on a dedicated courthouse and adequate room for a growing Court, and I am most interested in ensuring that you have the facilities you need.
We face an unprecedented challenge as the number of compensation and pension claims increase faster than the VA's ability to process them. Further, accuracy is not what it should be, driving up appeals, and we are seeing among veterans a growing propensity to appeal.
These factors have already had a dramatic effect on the Court's workload which has essentially doubled in the last ten years. The number of pending cases has doubled the number pending three years ago and more than three times the number pending a decade ago. We must be attentive to the Court's ability to handle demands which presumably will continue to climb.
I am, therefore, interested in learning more about the efficiency of the Court's operations. The phenomenon called the "hamster wheel", and the Chairman mentioned that a moment ago, has caught my eye also. Perhaps there is a good rationale. It seems inefficient for a veteran to appeal a multi-issue denial from the Board of Veterans' Appeals only to see one issue addressed and perhaps remanded or vacated by the Court at a time.
According to testimony we have received, this stretches the appeals process for often aging veterans by years. I do not believe that the Court is required to do business this way nor would it appear that it contributes to higher Court productivity. Our veterans deserve the best benefits delivery system we can provide.
In my brief period as Ranking Member, I have learned much about that system. I was pleased to work with Chairman Hall over the past few weeks on legislation that would improve how we serve veterans applying for benefits that they have earned.
In the testimony, we have read numerous suggestions regarding the Court's operations and I now look forward to our discussion on this essential facet of the benefit system.
Mr. Chairman, I yield back.
[The statement of Congressman Lamborn appears in the Appendix.]
Mr. HALL. Thank you, Mr. Lamborn.
After the first panel is finished giving their testimony, members will be recognized for five minutes to make opening remarks or ask questions.
Chief Judge Greene, thank you for coming this morning. I know you have a busy schedule and we will try to get you out of here as soon as possible. If you would please introduce yourself for the record?
Judge GREENE. Thank you, Mr. Chairman, Ranking Member Lamborn, and members of the Committee, for inviting me here today to discuss the challenges facing the U.S. Court of Appeals for Veterans Claims.
With me at the table, I have judges Mary Schoelen and Al Lance who constitute my Legislative Committee as part of the Board of Judges at the Court. That is why they are sitting with me today.
Mr. HALL. Thank you, Judge Greene. You will be recognized for five minutes for oral remarks and your complete written statement will be made part of the official record.
Judge GREENE. Thank you very much.
Mr. HALL. You are recognized for five minutes.
Judge GREENE. Chairman Hall, let me initially start by saying the Court, as a Federal Court of Appeals, is a national Court of record charged with conducting a legal review of adverse final Board of Veterans' Appeals' decisions on veterans' claims.
Thus, the judges of the Court do not adjudicate the facts of the claims as would a VA adjudicator or a Board of Veterans' Appeals veterans' law judge. Rather, like other Federal appellate Courts, we must determine whether the Board decision is legally correct or otherwise free of any prejudicial error affecting the fairness of a previous adjudication.
Judicial review of decisions of veterans' claims is relatively new. It has been a tremendous challenge since 1989 where there had not been any legal antecedent. There were statutes exempting the Department of Veterans Affairs decisions from judicial appellate review unlike other executive agencies or departments who had to face that appellate review.
Congress provided that independent review when it created the Court in 1988. Thus, over the course of almost 20 years, there has been created a body of veterans' law that serves to promote fundamental fairness and legal process in this very complex area. At the same time, this body of law has produced a bar of experienced veterans' law attorneys who are now available to guide veterans and others through this judicial appellate process.
Incidentally, before 1988, attorneys could not charge more than $10.00 for representing a veteran before VA. Once the Court was established, a veteran could not be charged a fee for representation at VA, but a lawyer could represent a veteran after the Board made its first final decision.
Now we see the upcoming event of lawyers representing veterans at VA starting this summer. Thus, with this attorney involvement, it comes as no surprise to the Court that there have been unparalleled increases in our caseload. Additionally, because we are 20 years old and have matured, a growing awareness among veterans and their families of the existence of veterans' appellate rights and the value of judicial review has played a significant role in that regard.
And most importantly, an upswing of VA adjudications of veterans' claims, especially at the Board of Veterans' Appeals, has certainly opened the door to many appeals coming to the Court and our doors are always open because every veteran as a matter of right has an appeal to our Court.
The charts that I provided in my prepared statement give you a snapshot of our current caseload inventory. Most of the cases are in one stage or the other. The majority of them are still in the pre-briefing stage or the briefing stage and will not be ready for review for quite some time.
As cases move towards the review stage, I am directing our available resources towards meeting the challenges accompanying this caseload. These available resources include ramping up our options in alternative dispute resolution. Increased use of the staff attorneys and retired judges may pay even greater dividends in this area. Indeed, appointment of mediators or magistrates to perform this important work is an attractive avenue to consider.
Recalling at the right time our retired judges has proved helpful in moving some of the cases and by continuing to build on the gained experiences of the sitting judges, we will be able to erect a Court structure that will sustain our ability to decide these cases efficiently and thoroughly.
These efforts can be enhanced further by promulgating rules that revise the way we acquire a record on appeal and defining when we may issue summary actions in the appropriate cases.
And on the technical side, we have initiated a plan to emulate many of our Federal and State sister courts by implementing electronic filing. Such technology will help us reduce some of the administrative delay that accompanies the voluminous filings that are associated with appellate litigation.
Last, but certainly not least, a sustained increase in work will require a sustained increase in workforce and space. Our present space is or will be inadequate for the type of caseload we are now experiencing. The Court is the only national Court of record without its own dedicated courthouse.
What better time than now to have a courthouse that will serve as a lasting symbol and beacon of justice that expresses the Nation's gratitude and respect for the sacrifices of America's sons and daughters who have served in our Armed Forces and their families. We need your commitment to support this endeavor.
The challenges facing the Court are significant, but they are challenges that were anticipated when the Court was created almost 20 years ago to conduct the independent judicial review of thousands of decisions made by VA. We will strive to the best of our abilities to meet the challenge effectively and efficiently.
We appreciate your interest in the Court. Our discussions ensure that our compatible goals mesh properly in advancing the concepts of judicial review of decisions on veterans' claims. I look forward to answering your questions.
[The statement of Judge Greene appears in the Appendix.]
Mr. HALL. Thank you, Judge Greene.
First of all, I will ask you a couple of questions myself. You mentioned that recalling retired judges has been useful, but that acquiring sufficient staff when recalling a judge is a problem. Is there a need to hire more staff and is recalling a judge a long-term solution?
Judge GREENE. Recalling a judge for the 90-day period is certainly a helpful solution. When we initiated this last April, I was very much concerned that we would not be able to provide adequate support for them. A judge at the Court has four clerks and a secretary and we certainly did not have that kind of capability.
Nevertheless, with the caseload, when I made the decision to recall the judges, I had to take staff attorneys from the central legal staff who would be otherwise reviewing cases for chambers and use them as clerks for the recalled judges. That worked to some extent, but it is not enough because at that point, it was difficult to get additional cases out of the central legal staff and get them sent to chambers.
Consequently in my budget request and in the current continuing resolution, I have been able to acquire three additional staff attorneys for the central legal staff and when a recalled judge is called, those individuals or at least three of those individuals will be identified specifically as support clerks for the retired recalled judges. And we think that perhaps with that type of support we will be able to increase their productivity.
Mr. HALL. Would you comment, please, on the Court's interpretation of the Rule of Prejudicial Error?
Judge GREENE. The statute clearly tells us to take due account of the Rule of Prejudicial Error. We have been trying to do that over the past 20 years. At every turn, there has been some indication, at least by the Federal Circuit who reviews our decisions, that we either are not fact finders to make those determinations or that in the paternalistic beneficent environment that is VA, the error is presumed, prejudicial error is presumed. And as a result, we are tackling that issue now.
We recently decided a couple of cases addressing prejudicial error with an attempt to describe and define how this Court would indeed take due account of the Rule of Prejudicial Error. It was accepted halfway by the Federal Circuit. I do not know whether the Federal Circuit will decide to define that for us, but it would be my hope that we would be able to define it ourselves.
Mr. HALL. Thank you.
Another topic you addressed in your statement was that veterans or qualifying family members may file an appeal. Can you define what you mean by qualifying family members?
Judge GREENE. What I mean by it? My definition is the same as the statute and it is the surviving spouse of the veteran or qualifying children of the veteran.
Mr. HALL. Simple enough. Thank you.
Do you have an opinion on the effect on the overall process of the veteran's option to go to the Circuit Court. Do you have an opinion on the possibility mentioned that perhaps the next level of appeal should be the Supreme Court, rather than a lateral move?
Judge GREENE. In a nutshell, I would like to have the opportunity to provide you a written response to that question as well. But for now we have to examine why the Federal Circuit was created or this serial appellate review was created initially.
[The information was provided in a follow-up letter from Judge Greene, which appears in the Appendix.]
And one can say that perhaps it was designed to promote uniformity in the system that was new. There was no legal antecedent in veterans' law. And as a result, as a new Court like the then U.S. Court of Veterans Appeals was finding its way or blazing the trail of veterans' law, there needed to be perhaps some type of further Article 3 review of those decisions.
But now we have developed 20 volumes of veterans' law and in most cases, the Federal Circuit receives about 350 to 400 appeals per year of the 3,000 cases perhaps that we decide, maybe ten percent. And of those, a substantial number of them are dismissed. That leaves a very small percentage of cases that either are remanded back to us or reversed over different opinions on how the law should be addressed.
Whenever you have a higher court, it is inevitable that there will be reversals, but that does not necessarily mean that justice is better done because there is that higher court. We are not infallible because we are not final. And as a result, until we are able to employ our expertise appropriately to the veterans law arena, we will always have this dichotomy with the Federal Circuit second guessing the decisions of the Court.
Mr. HALL. Thank you very much, Judge Greene.
Now I will recognize our Ranking Member, Mr. Lamborn.
Mr. LAMBORN. Thank you, Mr. Chairman.
Chief Judge Greene, why do appeals require approximately four months of processing by the Court's central legal staff after the final pleading is filed before the case is assigned to a judge, especially in light of the fact that each judge is authorized four law clerks?
Judge GREENE. I was not familiar exactly with that particular time frame. But once a case is joined, that is the briefs have been filed by the parties, the cases are then assigned to the central legal staff.
One of the initial steps the central legal staff takes when receiving a case in that manner is to determine in a pre-screening of those cases whether or not any of them perhaps can be worked for settlement. They have already done it once before, but perhaps the second time around they might be able to do it once the issues have been joined and the briefs have been filed.
But currently, until I got the three additional central legal staff attorneys, there were eight attorneys to handle those 400 to 500 cases. And as a result, I think experience has shown that it just takes that time for them to go through the file, prepare a memorandum, and they prepare a recommendation that then goes back to the public office. And when the public office receives the case, they then on our assignment wheel assign the case to a judge. And then, that whole packet along with the recommendation from central legal staff, comes to chambers for the pre-screening by the judge.
Mr. LAMBORN. Okay. Thank you.
How many retired judges would be willing to work longer than the required 90 days if recalled? Do you have any idea?
Judge GREENE. I know that they were not willing to do so this time because I, quite frankly, did not ask them because I wanted all of them to participate. We do not have the space to have five judges sitting around in our courthouse.
So, once I decided to initiate the recall, I wanted to make sure everyone had a fair opportunity and so all five that were available did serve. And as I go into this next iteration, we will then start looking at the possibilities to see if they will serve longer.
Mr. LAMBORN. Okay. Thank you.
Now, we have talked about the "hamster wheel" a little bit. Can you maybe explain that a little better and also provide your response to other testimony that states that the Court sometimes unnecessarily prolongs the appeals process for veterans by remanding to the Board single issues within a given claim?
Judge GREENE. Well, the "hamster wheel", that is a new concept, I suppose. I think it is more associated with the fact that once the "Veterans Claims Assistance Act" was passed in 2000, it changed the way we did business. We had a well-developed body of law up until that time about how we go about reviewing a case and what it took for a claim to be actually processed at VA.
With the notice provisions associated with the "Veterans Claims Assistance Act," it created another right for the veteran that we had to then ensure that the Department of Veterans Affairs carried out and that was making sure that the veteran was made aware of the way to substantiate his or her claim at VA. Without finding that any error was harmless, we had no other choice, but once we knew that that error existed, to return the case to give the veteran that opportunity to participate fairly in the adjudication process at VA. And as a result, we would remand the case to VA to do it correctly.
If there were other issues associated with that case and those issues did not give the veteran any more remedy than a remand, in other words, there was no likelihood of there being a reversal as to any of those issues but simply a remand for that error, then to preserve judicial economy, the case was still returned to the VA for the veteran to be able to make those other arguments before VA.
Remember, VA is a nonadversarial setting. At the Court, it is adversarial. And as a result, the veteran for the first time perhaps has raised this issue to the Court. Now the veteran can raise that issue to the Board or to the Regional Office and perhaps receive the remedy that he or she seeks below. If the remedy is going to be the same no matter how many issues we decide, i.e., a remand, we just simply, to preserve that judicial economy, send the case back on remand.
Mr. LAMBORN. Okay. Thank you.
Mr. HALL. Thank you, Mr. Lamborn.
And the Chair will now recognize Mr. Rodriguez.
Mr. RODRIGUEZ. Thank you, Mr. Chairman, and let me thank you for allowing me to comment and also for conducting this hearing.
With some 1,000 World War II veterans dying daily, do you prioritize cases based on the severity of their situation or anything such as that?
Judge GREENE. We have no specific rule for expediting a case other than the veteran showing cause because of extreme severe health or imminent death to expedite the case.
Now, informally, as a Board of Judges, we have agreed that each chambers will certainly consider cases as they see fit. And as a result, I would suspect that there are many occasions where if a particular case looks as though it has the characteristics that you describe, that a judge certainly has the option to bring that case forward.
Mr. RODRIGUEZ. Do you think that there should be concern, because my understanding is that when the case goes before them, where they might spend two or three years fighting it and then when the person dies, the appeals and the process has to start from scratch?
Judge GREENE. The counsel representing the veteran, and in most cases, even though there is a large number of veterans not represented at the time they file the appeal, by the time the case gets to chambers, many of those veterans are indeed represented. And counsel certainly has the option of notifying the Court with a motion to expedite those cases for whatever reason. And looking at that reason, if there is good cause shown, the judge certainly can expedite the case.
Mr. RODRIGUEZ. Okay. It is based on the judge making the determination?
Judge GREENE. That is right.
Mr. RODRIGUEZ. Okay. Let me ask you, based on judges, and the regions, we have heard reports that in certain areas, they are able to get certain benefits much easier under certain conditions than in other areas. Do we have any studies that reflect this, that there might be some disparities between regions?
Judge GREENE. Well, that is certainly an area that we never get to address. One of the purposes of the Court is to promote uniformity across the system.
Mr. RODRIGUEZ. I would hope so. So are you aware of any disparities?
Judge GREENE. I am not aware of any.
Mr. RODRIGUEZ. Has anybody conducted an assessment regarding how many are on the waiting list that might be African-Americans or from a certain region more so than others?
Judge GREENE. I am sure that the Department of Veterans Affairs has that information and that they would be able to provide that to you.
Mr. RODRIGUEZ. Okay. Maybe we can get a GAO study to look at the waiting list to see the disparities in ethnicity and race as well as region and the type of benefits that they appeal for, Mr. Chairman.
Judge GREENE. If I may, I might add, too, that if there was such an incident, the Court does exercise writ of mandamus authority. And if an individual thinks that because of ethnicity or what have you that they are not getting a fair shake at a Regional Office and that the Secretary is acting unlawfully or withholding action that is unreasonable, they can seek relief from the Court to compel the Secretary to act accordingly.
Mr. RODRIGUEZ. It just makes sense in some areas that there might be some judges who are tougher than others and they might feel that they get, just like the regular courts, might get a better chance in one area or another. I know I have heard those criticisms and I just want to make sure. Maybe we can do an assessment of that and make sure that that is not occurring.
I would hope that you would do that on your own, that you, yourselves, would check and balance how you operate and which ones. You do not do that?
Judge GREENE. No, no. No, sir. That has all been done already. All the adjudication on the claim has been done before it gets to us.
Mr. RODRIGUEZ. Okay, so nobody looks across the board in terms of possible disparities occur in terms of benefits?
Judge GREENE. No.
Mr. RODRIGUEZ. Okay, and no one looks across the board to see if prioritizing those individuals whose life expectancy is just a few years and that is just done by the individual?
Judge GREENE. Oh, no. Well, a judge does not know what case he or she is going to receive until it is assigned to them by the public office. When they conduct the screening, they can certainly determine if a case is from the greatest generation.
Mr. RODRIGUEZ. You do not know if they are screened for that purpose and prioritized for those or for some other purpose?
Judge GREENE. They are not, not at the Court.
Mr. RODRIGUEZ. Okay.
Judge GREENE. They may be at VA.
Mr. RODRIGUEZ. If I can just ask one open-ended question. What would be your recommendations as it is getting worse in terms of the numbers as we do have some 700,000 on the waiting list?
Judge GREENE. To expedite the 700,000 cases?
Mr. RODRIGUEZ. Yeah.
Judge GREENE. Well, I have not commented on how VA should do its business because we have to review how they have done their business. But I think it is very critical that when we provide legal precedents involving the adjudication of claims that that law has to be disseminated throughout all the 54 Regional Offices so that every Regional Office adjudicator is working on the same sheet of music. And if they do that, that is the first step, and then you have got to get the regulations easier to read and easier developed so that the adjudications do flow uniformly and fairly.
Mr. RODRIGUEZ. Thank you very much. I ran out of time. Thank you.
Mr. HALL. Thank you, Mr. Rodriguez, and Chief Judge Greene, both of you for your colloquy and your suggestions.
The Chair will now recognize the Honorable Mr. Hare.
Mr. HARE. Thank you, Mr. Chairman, and thank you for holding this hearing.
Judge, I am sorry I got in a little bit late, so I did not get to hear all of your testimony. I just have a couple questions for you.
Why do you think the Court is seeing such a dramatic increase in its caseload, and do you think this is due to the returning servicemen and women in Iraq and Afghanistan? Do you believe the Court is prepared to handle expected increases from these recently deployed troops?
Judge GREENE. As I indicated in my opening remarks, it has not really come as a huge surprise, at least at the Court, that these numbers are what they are. If you look at the number of decisions that the Board of Veterans' Appeals renders each year, you see that their total denials of a case amounts to in the numbers of twelve, thirteen thousand. Those twelve or thirteen thousand cases are potentially appeals to the Court of Appeals for Veterans Claims.
And as a result, we feel very fortunate that with our seven judges that we are not receiving those thirteen thousand. And you add on to that the number of appeals that just because a veteran may have been awarded a benefit but is not happy with the rating or not happy with the effective date, they can still appeal that case to our Court. So the numbers of appeals from the Board or the number of decisions produced by the Board creates a potentially huge bubble.
The involvement of attorneys certainly provides better access to the courts for the veterans. And we have a very mature veterans' bar association at this point. And as a result, veterans are finding their way to judicial review of decisions made by VA.
As to the question about the current Iraq veterans and the Afghanistan veterans, I am happy to say that we do not receive any appeals from them at this time. It is just too soon. In our process, those cases have to go to the Regional Office and to the Board of Veterans' Appeals before ever coming to the Court.
I would hope that at least from what we are seeing that many of those claims would not be denied. There are, of course, cases such as Post Traumatic Stress Disorder (PTSD) claims that we anticipate receiving somewhere down the road, but it is far too soon now for us to see appeals from veterans of Iraq or Afghanistan.
Mr. HARE. Just one last thing, I apologize if you mentioned this. Is there an average time that the claim takes from the time it gets to you until it is decided or adjudicated?
Judge GREENE. If I recall, I think in my annual report, we had something like 359 days, 351 days was the time from filing to disposition. That was a median time.
Mr. HARE. I am sorry?
Judge GREENE. That was median, a median time. Now, because we are an appellate court, there are certain appellate steps that have to be taken before a judge can ever begin to decide a case.
At our Court, because we have no record of trial at the very beginning, the rules of Court allow 254 days to prepare a case for sending it to chambers. Last year, we had 13,000 requests for extensions of time of that 254 days. All of them, as I recall, were granted because if we do not grant them, the end result is that if the appellant fails to get something in on time, the appellant veteran, the veteran is thrown out of court.
Mr. HARE. Excuse me. Is this the veteran that is requesting additional time?
Judge GREENE. Both sides, veterans and the general counsel.
Mr. HARE. Okay. Thank you very much.
Thank you, Mr. Chairman.
Mr. HALL. Thank you, Mr. Hare.
I think since we have two more panels to go and you have been very forthcoming and offered to submit further answers and more detail in writing, Chief Judge Greene, then we will thank you for your testimony, and thank your staff for being here with you, and excuse you.
Judge GREENE. Thank you.
Mr. HALL. You probably have a full day's work ahead, so enjoy.
Judge GREENE. Thank you very much.
Mr. HALL. Thanks again.
We will now invite panel two to join us at the witness table, Bart Stichman, the Joint Executive Director of National Veterans Legal Services; Robert Chisholm, Past President of the National Organization of Veterans' Advocates; and Brian Lawrence, Assistant National Legislative Director of Disabled American Veterans.
STATEMENTS OF BARTON F. STICHMAN, JOINT EXECUTIVE DIRECTOR, NATIONAL VETERANS LEGAL SERVICES; ROBERT VINCENT CHISHOLM, PAST PRESIDENT, NATIONAL ORGANIZATION OF VETERANS' ADVOCATES; AND BRIAN LAWRENCE, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS
Mr. STICHMAN. Thank you, Mr. Chairman. My name is Bart Stichman, Co-Director of National Veterans Legal Services Program.
I am pleased to present testimony today on behalf of the National Veterans Legal Services Program and I do so from the perspective of veterans and their survivors who appeal their cases to the Veterans Court.
We commend the Chief Judge for the steps he and the other judges and staff of the Court have taken to try to speed up the process from filing an appeal to decision.
There are, however, four improvements that we suggest in order to either eliminate or minimize the "hamster wheel" situation, the phenomenon that too many veterans face in which the Court does not issue a final decision on the claim, but rather remands the case back to the Board of Veterans' Appeals which then may remand it back to the Regional Office, and cases sometimes bounce back and forth a number of times and go back to the Court a second time.
And one of the reasons for this problem is a policy the Court adopted in the case called Best and Mahl. I think the Chairman referred to it and other Congressmen have this morning. That policy is to have piecemeal adjudication at the Veterans Court.
And what I mean by that is that the veteran briefs a number of different legal errors that the veteran says the Board of Veterans' Appeals made. The VA files a brief contesting those allegations of error. Under Best and Mahl, if the Court decides that one of the allegations of error by the veteran is correct and that error deserves a remand to correct the error, it will not address the other allegations of error. The Court will allow the case to go back with those errors unresolved because those errors would not lead to a reversal and a grant of benefits even if the Court were to include there was error.
So the Court avoids deciding all the issues. The problem is what happens thereafter when the Board corrects the one error found by the Court, but it does not change its position on the other grounds for error that the veteran had alleged and the Court did not resolve. So it makes the same error over again because the Court did not require it to change what it did in that regard.
So what often happens is if the claim is denied after correction of the one error identified by the Court, then the veteran is back in the same position, appeals again to the Veterans Court, briefs the exact same legal issues, and we have the ""hamster wheel"" phenomenon playing again. That, I think, contributes to injustice at the Veterans Court and it is an unfortunate policy.
Second is the Court's reluctance to overturn erroneous Board of Veterans' Appeals findings of fact. The Board is responsible for weighing conflicting evidence on critical points in the case and resolving reasonable doubt in favor of the veteran. Sometimes the Board does not do that. It resolves conflicting evidence. But, even though the evidence weighs in the veteran's favor, it decides that the claim should be denied. The veteran appeals to the Court.
Congress has told the Court you can overturn the Board's findings of fact only if you decide it is clearly erroneous. That is the statutory phrase. The Court interprets that phrase very extremely. It will only overturn a Board finding in extreme circumstances.
So if the Court feels that the finding of fact is probably wrong, but not rising to the level of clearly erroneous, it will send the case back for a better explanation. Hence, the ""hamster wheel"" again.
A third contributor to the ""hamster wheel"" is another phenomenon that has been talked about earlier this morning and that is the fact that if the veteran or survivor who appeals to the Court dies while the appeal is pending at the Court, the claim dies with the claimant and a qualified survivor can only pursue the benefits that the veteran who just died was seeking by starting at square one and filing a claim with the Regional Office for those benefits.
And so the years of the process come to a halt and the person has to start from square one. We presented testimony last month before this Subcommittee about that problem and we think there is a legislative solution to allow the qualified survivor to substitute for the person that just died and continue the appeal on at the Court without requiring that person to start at square one.
Finally, our testimony talks about another injustice that was inadvertently created by Congress when it enacted the "Veterans Judicial Review Act" in 1988. Through oversight, Congress did not provide either of the Courts that it sends cases to, the Court of Appeals for Veterans Claims or the Federal Circuit, with authority to certify a case as a class action. Prior to that, veterans could file a case in U.S. District Court which operates under class action rules.
But when Congress transferred jurisdiction from District Courts to the Veterans Court and the Federal Circuit, it did not provide for class actions. It was silent on the subject and both Courts as a result have said they do not have class action authority. That results in both injustice and inefficiency in the process.
And we discuss in our testimony a case study, a real case study of a battle that is currently going on between Navy veterans who served in the waters offshore Vietnam and the VA. Thousands of Navy Blue Water Veterans, they are called, who served offshore, but did not set foot on land in Vietnam, have been denied benefits by the VA and that battle has been going on for five years in a way that promotes inefficiency. And if a class action mechanism had been in force, both the VA and claimants would have been better served.
And just to briefly discuss some of the facts involved, in 2003, a widow named Andrea Johnson applied for death benefits due to the fact her husband died of cancer which she said was caused by an Agent Orange related disease. The VA said you are not entitled because your husband did not set foot on land in Vietnam, a rule the VA adopted in 2002.
She briefed that case before the Veterans Court in 2003. The Court scheduled that case for oral argument and convened a panel of three judges. Six days before oral argument was scheduled to take place, the VA General Counsel made the widow an offer she could not refuse. They agreed to pay her all death benefits retroactive to the date the veteran died. She could not legally recover any more money. So she, of course, accepted that offer.
When she accepted that offer, the case was dismissed, the panel was disbanded, and the oral argument was canceled. She got her money, but the VA continued for the next three years, because no precedential decision had been issued, to deny similarly situated veterans and survivors' claims based on the same fact pattern, because the veteran did not set foot on land.
Finally, in August 2006, the Veterans Court ruled, in a different case called Haas filed by a Navy commander who appealed all the way to the Court, that the VA's set-foot-on-land rule promulgated in 2002 was illegal.
Now, the VA has appealed that to the Federal Circuit. They will either win or they will lose. If they lose, then Commander Haas and those people with pending claims now will get benefits. But all those people who were denied in the prior years after Andrea Johnson's case was mooted out because they bought her off, those people will never get benefits.
They will never get benefits because the VA is not required to identify them and tell them about the new Court decision. And even if they were required to tell them about the new Court decision, the rules are that that decision, since it is final, can only be overturned based on clear and unmistakable error and the VA would find that that is not clear and unmistakable error.
All that is due to the fact that there are no class action rules at either the Federal Circuit and the Veterans Court. That is an area that Congress should look into.
[The statement of Mr. Stichman appears in the Appendix.]
Mr. HALL. Thank you, Mr. Stichman. Do you want to summarize or was that your summary right there?
Mr. STICHMAN. I think I have covered amply the four recommendations.
Mr. HALL. Thank you. Your full statement is in the record.
Mr. STICHMAN. Yes. Thank you.
Mr. HALL. We will get back to you with questions.
The Chair will now recognize Robert Chisholm, the Past President of the National Organization of Veterans' Advocates.
Mr. CHISHOLM. Good morning, Mr. Chairman, and thank you for inviting me to testify this morning on behalf of the National Organization of Veterans' Advocates. I am just going to jump right in with my recommendations and get right to it.
The first issue that sort of echoes what Mr. Stichman just said, one way to get veterans off the ""hamster wheel"" is to maybe consider changing the Court's scope of review and allowing them to engage in de novo fact finding.
Since the advent of judicial review, decisions from the Board of Veterans' Appeals in 1988, the CAVC has remanded roughly 65 to 75 percent of the cases. And as we have discussed earlier, this puts the veteran back on the ""hamster wheel"" and final decisions are hard to come by.
Many of these cases are remanded from the CAVC to the Board because of inadequate findings and conclusions. Under the present statutory scheme as set forth at 38 USC 7261(c), the CAVC is expressly forbidden from engaging in fact finding, de novo fact finding of an adverse determination by the Board.
Under such a scheme, if they were permitted to, they would be required to apply the benefit of the doubt which is codified at 38 USC 5107(b). The net result of such an amendment would be fewer cases remanded from the Court to the Board due to inadequate findings.
Many of these veterans are elderly and oftentimes do not survive the remand process. Permitting the Court to engage in de novo fact finding will provide veterans with a resolution they deserve during their lifetime. And a model for this could be the Courts of Criminal Appeals for the military under title 10, U.S.C. §866(c) where the courts are permitted to do some fact finding.
I recently represented a veteran who went to the court four times. Four times the case was remanded due to inadequate findings by the Board. I finally got the veteran benefits after 12 years of litigation. They should not have to endure that kind of process.
The second issue we also talked about this morning is permitting veterans the right to substitution in court so that if a veteran dies while the claim is in court, his next of kin or estate should be allowed to substitute and continue that appeal in court and not go all the way back to the beginning and start the process anew.
The third area I would like to touch on is the issue of annual reports by the Court of Appeals for Veterans Claims. I think the Court should be required, and I outline a number of different things, to report annually. And they do report some of this data, but to me, we do not have concrete data in one specific area, the median time it takes from the date a case is fully briefed until a decision is reached. We have data on the time it takes for the initial process until the case is fully briefed. But once it is fully briefed until the case is actually decided by a judge, I think Congress should ask for that data as well.
The next issue has also been touched upon and that is the increasing number of appeals being filed. We have not yet seen in the Court the OIF and OEF veterans because those cases are still down at the agency. None of them have actually made it to the Court to my knowledge. Nevertheless, in 2005, the caseload jumped by a third from about 2,400 to 3,600, 3,700.
NOVA is concerned in the future as this caseload increases Congress should be proactive and think about expanding the number of judges because at some point, even with the recalled judges, it will be very difficult to meet the number of appeals and keep the decisions on the same pace that they are being made presently.
Our suggestion is that if the notice of appeals reach 5,000 or more, you may want to consider adding two additional judges at that point to the Court.
The last issue I will touch upon is the issue of the jurisdiction of the Federal Circuit Court of Appeals. This is the most critical piece that I would like to speak to this morning because the Federal Circuit's jurisdiction over this appeals process is a limited one and it only governs appeals regarding regulatory interpretation or statutory interpretation.
Many veterans appeal to the Federal Circuit, but their cases are dismissed because it does not fall within that narrow jurisdictional window. In NOVA's view, the jurisdiction of the Federal Circuit is critical to veterans' cases and should not be contracted or eliminated. And at some point in the future, it may be necessary to enlarge it.
Chairman Hall, you recently asked about the issue of prejudicial error. On, I believe it was, May 16th, the Federal Circuit issued a landmark decision called Sanders which more broadly interpreted the Rule of Prejudicial Error in favor of veterans and overturned part of the Court's decision in a case called Mayfield and acknowledged the beneficial system in that the burden of proof on prejudice should not be on the veteran, but rather should be on the VA in those instances.
I would like to thank you again for permitting me to testify this morning and I would be pleased to answer any questions you may have.
[The statement of Mr. Chisholm appears in the Appendix.]
Mr. HALL. Thank you, Mr. Chisholm.
We will now recognize Mr. Brian Lawrence, the Assistant National Legislative Director for Disabled American Veterans for five minutes. Your full remarks will be entered into the record.
Mr. LAWRENCE. Thank you, Mr. Chairman and members of the Subcommittee. On behalf of the Disabled American Veterans, I am pleased to present our views on challenges facing the U.S. Court of Appeals for Veterans Claims.
The greatest challenge facing the Court is the backlog of appeals. A veteran with an appeal before the Court has already been through a lengthy VA claims process and an even longer appeal process at the Board of Veterans' Appeals. It can take years for appeals to reach the Court. Because a significant number of disabled veterans are elderly and in poor health, many do not live long enough for their appeals to be resolved. Those who do survive are understandably discouraged. Veterans deserve to have issues resolved in a reasonable amount of time.
Last summer, Senator Craig noted that the accumulation of appeals at the Court was unacceptable. Hearings were held to address the problem and recalling retired judges was an agreed upon solution. As Senator Craig noted last January, the increase to the Court staff had a positive effect and productivity is high.
The DAV did and does support recalling retired judges as a partial remedy to the backlog. However, it does not address a primary cause for accumulation of cases at the Court.
Over the years, the Court has shown a reluctance to reverse errors by the Board. Rather, there is a propensity to remand cases to the Board based on admission of error by the Secretary. Once this occurs, the Court will not review other alleged errors raised by an appellant.
Such remands leave issues unresolved and require appellants to invest many more months and perhaps years to obtain a decision that should have come from the Court on the initial appeal. As a result, many cases before the Court are there for a second, third, or fourth time.
In addition to prolonging the appeal process, the Court's reluctance to reverse Board decisions provides incentive for the VA to avoid settling appeals before they reach the Court. If reversals were more frequent, we believe the VA would be discouraged from standing firm on decisions that are likely to be overturned.
We also believe that if the Court were required to address all assignments of error presented by an appellant, it would help break the perpetual cycle of remand and appeal.
To provide Congress with an accurate measure of the Court's performance, the Court should submit an annual report that includes three categories: One, the number of Board decisions affirmed; two, number of dispositions based on joint motion for remand and settlement; and, number three, the number of dispositions reversed or remanded by a judge's decision.
Actions that fall under category two are of an administrative nature that are generally accomplished by the Clerk of the Court. Categories one and three must be accomplished by the Court's judges so presenting the information in this format would give Congress a clearer picture of the Court's accomplishments. The annual report should also include the number of memorandum decisions made by each judge.
Finally, the DAV supports the establishment of a dedicated veterans' courthouse and justice center. The space currently leased by the Court is inadequate for the level of staff necessary to complete its caseload.
During our most recent national convention, DAV members voted to again adopt a long-standing resolution calling for the Court to have its own facility. This resolution envisions an architectural design and location reflective of our Nation's respect and gratitude for military veterans.
Rather than designating the office building where the Court currently leases space as the permanent facility, we encourage the Subcommittee to support the construction of a new veterans' courthouse and justice center that features a design and location worthy of its status.
Mr. Chairman, this concludes my statement. I will be happy to answer any questions you may have. Thank you.
[The statement of Mr. Lawrence appears in the Appendix.]
Mr. HALL. Thank you, Mr. Lawrence, and thank you to all of our panelists.
Mr. Stichman, in your statement, you said that many veterans have been to court for the same issue multiple times. Do you think there is a way to help get these veterans off the so-called "hamster wheel" and smooth the appeals process to alleviate problems such as the one stated above?
Mr. STICHMAN. Yes. And we have made a number of recommendations in our testimony. One, Congress can amend, I think it is 7261, the se