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Honorable Gus M. Bilirakis, Acting, Chairman, Subcommittee on Disability Assistance and Affairs

Honorable Gus M. Bilirakis, Acting, Chairman, Subcommittee on Disability Assistance and Affairs

Good afternoon and welcome everyone.  This oversight hearing of the Subcommittee on Disability Assistance and Memorial Affairs will now come to order.  

We are here today to examine the appeals’ process for veterans’ disability claims.  Our goal in this hearing is to learn more about the process that is currently in place, identify the areas that need improvement, and look for ways to improve overall efficiency---whether that be by changes in law, in rules, or in practice.   

I anticipate that our VA panelists this morning will provide information on each of their respective roles in the appeals’ process --- from the Regional Office, the Appeals Management Center, and the Board of Veterans’ Appeals --- I thank you all for coming today.

I also look forward to hearing from the Court, and I especially thank Chief Judge Kasold (Kaz-old), of the U.S. Court of Appeals for Veterans Claims, for taking the time to be here this afternoon.

To date we have heard quite a bit about the backlog of veterans’ claims, and VA’s concerted efforts to transform the “people, process, and technology” of the claims’ system.  However, what is not clear is the level of attention that VA is paying towards veterans’ appeals.  

Recently, VA has instituted a series of initiatives to clear out its oldest claims, and these initiatives require months of mandatory overtime for its employees.  Through these measures, VA proposes to complete about 300,000 of these old claims in very short order --- within a matter of months.

When a claim is initially decided, it becomes a number in VA’s Monday Morning Report.  It is considered a “win” towards the Department’s numeric goals for 2015.   Yet, we know that the Board of Veterans’ Appeals projects a workload of over 100,000 appeals in the next fiscal year alone.  

In fact, many experts have cautioned that VA will soon be encountering a “tsunami of appeals.”   Earlier this year, the Full Committee raised concerns on VA’s ability to anticipate and prepare for challenges in the processing of veterans claims for disability benefits.  And, with this potential influx of appeals, VA cannot ignore this part of the process.  They must be adequately prepared.

We know that, right now, every step of the appeals process is plagued by lengthy delays.  For those who may not be familiar with the appeals process, here is how it works in general:  

After a veteran receives an initial rating decision, they may file a Notice of Disagreement (NOD) with the Regional Office (RO).  In response, the RO will either reconsider the claim or uphold the original adverse decision and issue a Statement of the Case (SOC).  The SOC outlines the decision, provides a list of the evidence reviewed, and attaches a list of the laws and regulations applicable to the decision.  A veteran who is dissatisfied with the SOC may file a substantive appeal within 60 days.  

If a veteran chooses to file a substantive appeal, the claim is sent to the Board of Veterans’ Appeals (BVA), a semi-independent agency within the VA, for review.  This review is performed by VA attorneys and Board Members, sometimes referred to as Veterans Law Judges, who may allow the appeal, deny the appeal, or remand the case back to the RO for further development.  Pursuant to statute, appeals that are remanded require “expeditious treatment” by the RO.

It is of note that, prior to 1988, the BVA’s decision was considered final, and was not subject to any form of judicial review.  In 1988, Congress passed, and President Reagan signed into law, the Veterans’ Judicial Review Act, creating the United States Court of Appeals for Veterans Claims (CAVC), an independent Article I court with exclusive review of denials from the BVA.  

Just as a veteran aggrieved by a final decision of the BVA can appeal to the CAVC, a veteran aggrieved by a final decision may appeal to the Federal Circuit, and ultimately, the United States Supreme Court.  Appeals that are remanded through the federal court system are also statutorily required to receive “expeditious treatment.”

Despite the statutory requirements, appealed claims are often placed on the back burner in favor of initial claims.  The 2012 BVA’s Report of the Chairman states that the average length of time between the filing of an appeal and a decision by the Board is 1,040 days.  If a veteran subsequently appeals to the CAVC and the Federal Circuit, they might wait nearly twice as long.

Thus, you can imagine this Committee’s surprise to learn that appealed and remanded claims were not to be included in VA’s “Oldest Claim Initiative.”   Although VA stated that their priority is to provide initial decisions to veterans who have been waiting for two years or more, many veterans with appealed or remanded claims have been waiting much longer than that.
Unfortunately, lengthy wait times are not the only problems currently plaguing the appeals system.   In March 2013, the Federal Circuit issued a ruling stating that the VA acted unlawfully in 2011 when it promulgated a regulation that eliminated certain procedural and appellate rights for veterans appearing before the BVA, and ordered VA to show cause as to why sanctions should not be imposed.   VA responded to that order on May 20, 2013, with a path forward to restore these rights to those veterans affected, and it is my hope that VA takes veterans’ due process and appellate rights more seriously in the future.   

Our nation’s veterans deserve an appellate system that promptly and accurately adjudicates claims that may have been incorrectly decided by VA initially, and that gives appropriate and timely consideration to remanded matters.  
The veterans’ appellate process is a multi-tiered process that spans from the RO, to the BVA to the CAVC and beyond.  
It is my hope that by bringing witnesses from each stage in the process together at today’s hearing, that we may better understand the role each plays in the process, and work together in a more efficient manner to process veterans’ appeals.

And, before I conclude my remarks, I want to highlight that the role of technology in the appeals process cannot be ignored.  There has been much discussion on the need for seamless technological capabilities between DoD and VA.  

Similarly, VA must ensure that the technology that it has developed, the Veterans Benefits Management System, or VBMS, is equipped to not only meet the needs of ROs, but also those needs of the BVA.  Although the VBMS development team has met with BVA staff, we have heard conflicting reports as to how well the BVA’s needs have been received and incorporated into VBMS to date.  I encourage VA to continue communications with the Board to ensure that VA’s technology upgrades also meet their needs.  

With that, I would like to welcome our witnesses.  Today’s scheduling was slightly compressed due to various events.  Ordinarily, we would hold separate panels, with VA on one panel, and the Court on another.  However, due to time considerations today we are seating a sole panel, and the order of the testimony is meant to be indicative of the appeals’ process.  

We will start at the Regional Office and work up to the Court of Appeals for Veterans Claims.  

First, we have Mr. Keith Wilson, the Director of the Roanoke Regional Office, is here on behalf of the Veterans Benefits Administration.

Then there is Ms. Laura Eskenazi (Ess-kuh-nas-ee), the Principal Deputy Vice Chairman, is here representing the Board of Veterans’ Appeals.  

Finally, in terms of VA representation, we have Mr. Ronald S. Burke, Jr., Director of the Appeals Management Center in the National Capital Region Benefits Office.

Then, we will hear from Chief Judge Bruce Kasold, who is here representing the U.S. Court of Appeals for Veterans Claims.  

We also have numerous statements for the record that have been submitted from various organizations, and I would like to thank all of those who submitted them for today’s hearing.

With those introductions complete, I am eager to hear from all of our witnesses on how we may improve the overall process for veterans’ appeals.  Thank you all for being with us today.  

 I now yield to our Ranking Member for her opening statement.

(Titus makes her opening statement)      

Are there any other members who would like to make an opening statement?

At this time, I’d like to welcome our first panel to the witness table.  

Good afternoon everyone.  We are going to first hear from Mr. Wilson, then we will hear from Ms. Eskenazi (Ess-kuh-nas-ee), then Mr. Burke.  We will then move on to the Court, and we will hear from Chief Judge Kasold (Kaz-old).  

Your complete written statements will be entered into the hearing record.  

Mr. Wilson, you are now recognized for five minutes.  

(Mr. Wilson makes his remarks)

Thank you Mr. Wilson.

Ms. Eskenazi (Ess-kuh-nas-ee), you are now recognized for five minutes.  

(Ms. Eskenazi makes her remarks)

Thank you Ms. Eskenazi.

Mr. Burke, you are now recognized for five minutes.  

(Mr. Burke makes his remarks)

Thank you Mr. Burke.

Chief Judge Kasold (Kaz-old), you are now recognized for five minutes.  

(Chief Judge Kasold makes his remarks)

Thank you Judge Kasold (Kaz-old).

I will begin the questioning and then will recognize the Ranking Member and our other Members, alternating in order of arrival.

[Complete your questioning of Panel 1 ]

I now recognize the distinguished Ranking Member for any questions she may have.

[ Ranking Member questions Panel 1 ]

Thank you Ms. Titus.

[Recognize the other Members alternate in order of arrival ]

[Second round of questions started by you, if not….]

Ladies and gentlemen, on behalf of the Subcommittee, I thank you for your testimony.  We look forward to continuing to work with you on these important matters.  

You are now excused.

[Do you want to recognize the RM for closing remarks?]

Thank you everyone for being here with us today.  I look forward to future updates on the initiatives we have heard about today and I look forward to working with all of you throughout this Congress to ensure that we improve the veterans’ disability claims appeals process.  

I’d like to once again thank all of our witnesses for being here today.

I ask unanimous consent that all members have five legislative days to revise and extend their remarks and include extraneous material.  Hearing no objection so ordered.
I thank the members for their attendance today.  
This hearing is now adjourned.