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Hon. John J. Hall, Chairman, and a Representative in Congress from the State of New York

Good Morning,

I would ask everyone to rise for the Pledge of Allegiance – flags are in the front and rear of the room.

I would first like to thank the witnesses for coming today to appear 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 utmost importance to you.

I also want to commend Chief Judge Greene of the Court of Appeals for Veterans Claims for the exceptional job he has been doing with a relatively “young” bench 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 in the FY 08 Budget Resolution which passed this Congress with additional resources to expand your staff.  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 (the Court) and the usual merry-go-round of remands back and forth between the three has turned into almost a system of injustice for our veterans. 

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.” 

First the veteran can appeal the Regional Office decision to the Board of Veterans’ Appeals, known as the BVA. This process can take up to three 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.  The Federal Circuit Court usually takes up to a year to make a decision which then can be appealed to the Supreme Court.  This cycle can repeat itself a few times for one veteran in many different variations adding up to between 5-7 years to final adjudication.

The question becomes at what cost to the administration of justice is this cycle 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) and wonder what is gained by this unique additional bite at the appeals 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 end 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. 

I likewise look forward to hearing testimony on ways to improve processes within the Court itself.  I particularly 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 review cases de novo (weigh all of the BVA and RO findings of evidence and law), under 38 U.S.C., Sec. 7261.  However, I would like to examine the value of allowing the Court to weigh de novo evidence 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 (NVLSP), the National Organization of Veterans’ Advocates (NOVA) and the Disabled American Veterans (DAV) have ideas in this area and I am anxious to explore them further.

Lastly, I look forward to hearing from the VA represented today by Chairman Terry of the BVA, accompanied by 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 like to hear about the problems it sees system-wide and the role it plans to take in lessening the appellate “hamster wheel” for our veterans. 

With the expected surge in filings by returning OIF/OEF veterans, the VA, as the “gateway” in the appeals process as well as the oft-creator of the record that forms the basis for appellate review, should amplify its role in the overall improvement of the claims adjudication process.

Thank you.