U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

97–993 2016

VETERANS’ DILEMMA: NAVIGATING THE APPEALS 

SYSTEM FOR VETERANS CLAIMS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND 

MEMORIAL AFFAIRS 

OF THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

THURSDAY, JANUARY 22, 2015 

Serial No. 114–02 

Printed for the use of the Committee on Veterans’ Affairs 

( 

Available via the World Wide Web: http://www.fdsys.gov 


VACREP0180 with DISTILLER
(II) 

COMMITTEE ON VETERANS’ AFFAIRS 

JEFF MILLER, Florida, Chairman 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida, Vice-Chairman 

DAVID P. ROE, Tennessee 

DAN BENISHEK, Michigan 

TIM HUELSKAMP, Kansas 

MIKE COFFMAN, Colorado 

BRAD R. WENSTRUP, Ohio 

JACKIE WALORSKI, Indiana 

RALPH ABRAHAM, Louisiana 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

AMATA COLEMAN RADEWAGEN, American 

Samoa 

MIKE BOST, Illinois 

CORRINE BROWN, Florida, Ranking 

Minority Member 

MARK TAKANO, California 

JULIA BROWNLEY, California 

DINA TITUS, Nevada 

RAUL RUIZ, California 

ANN M. KUSTER, New Hampshire 

BETO O’ROURKE, Texas 

KATHLEEN RICE, New York 

TIMOTHY J. WALZ, Minnesota 

JERRY MCNERNEY, California 

JON TOWERS, Staff Director 

DON PHILLIPS, Democratic Staff Director 

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL 

AFFAIRS 

RALPH ABRAHAM, Louisiana, Chairman 

DOUG LAMBORN, Colorado 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

MIKE BOST, Illinois 

DINA TITUS, Nevada, Ranking Member 

JULIA BROWNLEY, California 

RAUL RUIZ, California 

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. 


VACREP0180 with DISTILLER
(III) 

C O N T E N T S 

Thursday, January 22, 2015 

Page 

Veterans’ Dilemma: Navigating the Appeals System for Veterans Claims ........ 1 

OPENING STATEMENTS 

Ralph Abraham, Chairman ..................................................................................... 1 

Dina Titus, Ranking Member ................................................................................. 3 

Prepared Statement ......................................................................................... 41 

WITNESSES 

Beth McCoy, Esquire, Deputy Under Secretary for Field Operations, VBA, 

U.S. Department of Veterans Affairs ................................................................. 5 

Accompanied by: 

Mr. Ronald Burke, Jr., Director, Appeals Management Center, VBA, 

U.S. Department of Veterans Affairs 

Laura H. Eskenazi, Esquire, Executive-in-Charge and Vice Chairman, Board 

of Veterans’ Appeals, U.S. Department of Veterans Affairs ............................. 6 

Prepared Statement ......................................................................................... 44 

Mr. Gerald T. Manar, Deputy Director, National Veterans Service, Veterans 

of Foreign Wars .................................................................................................... 23 

Prepared Statement ......................................................................................... 54 

Mr. Zachary Hearn, Deputy Director for Claims, Veterans Affairs and Rehabilitation Division, The American Legion .......................................................... 24 

Prepared Statement ......................................................................................... 65 

Diana Boyd Rauber, Esquire, Associate General Counsel for Appeals, PVA ..... 26 

Prepared Statement ......................................................................................... 71 

Mr. Paul R. Varela, Assistant National Legislative Director, DAV .................... 28 

Prepared Statement ......................................................................................... 80 

James R. Vale, Esquire, Director, VBP, VVA ........................................................ 30 

Prepared Statement ......................................................................................... 89 

Barton F. Stichman, Esquire, Joint Executive Director, National Veterans 

Legal Services Program ....................................................................................... 36 

Prepared Statement ......................................................................................... 103 

Kenneth M. Carpenter, Esquire, Founding Member, National Organization 

of Veterans’ Advocates ......................................................................................... 37 

Prepared Statement ......................................................................................... 112 

FOR THE RECORD 

Department of Veterans Affairs (VA) Appeals Data Requested by House Committee on Veterans’s Affairs Subcommittee on Disability Assistance and 

Memorial Affairs .................................................................................................. 123 

Board Docket No. 88–03–442 .................................................................................. 128 


VACREP0180 with DISTILLER

VACREP0180 with DISTILLER
(1) 

VETERANS’ DILEMMA: NAVIGATING THE 

APPEALS SYSTEM FOR VETERANS CLAIMS 

Thursday, January 22, 2015 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON VETERANS’ AFFAIRS, SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL

AFFAIRS, Washington, D.C. 

The subcommittee met, pursuant to notice, at 11:11 a.m., in 

Room 340, Cannon House Office Building, Hon. Jon Runyan [chairman of the subcommittee] presiding. 

Present: Representatives Abraham, Lamborn, Zeldin, Costello, 

Bost, Titus, Brownley, and Ruiz. 

Also Present: Representative O’Rourke. 

OPENING STATEMENT OF CHAIRMAN RALPH ABRAHAM 

Mr. ABRAHAM. Good morning, everyone. Thanks for being here 

and thanks for your patience. 

This oversight hearing of the Subcommittee on Disability Assistance and Memorial Affairs will now come to order. I first want to 

take a moment to welcome the subcommittee members, those who 

are new to Congress, new to the committee, and also those who are 

returning to this committee. 

It is a true honor to sit as your chairman of this subcommittee 

and I am also pleased to welcome my colleague, sitting ranking 

member, Ms. Dina Titus. 

By way of short introduction, I am a licensed physician, A military veteran, pilot, farmer, former veterinarian, a husband, and 

proud father, and proud grandfather now. So I am so pleased to be 

here and be a representative of the Louisiana Fifth district. 

I know that the Veterans’ Affairs Committee has been vigilant in 

its oversight of the Department of Veterans Affairs and has been 

recognized for its ability to proceed in a largely bipartisan and reasonable manner to benefit our military veterans and certainly their 

families. 

In recent years, terribly grey matters have been productively addressed, and I look forward to continuing that tradition with Ms. 

Titus and members of the subcommittee on issues that are critically important to our Nation and certainly to our veterans. 

To that end, we are here today at the first DAMA subcommittee 

oversight hearing committee of the 114th Congress to examine the 

appeals process for veterans’ disability claims within the Department. We will focus upon appeals, remands, the rate of remands 

and the lengthy delays that plague the system. 


VACREP0180 with DISTILLER
2 

I am aware that the Department chose to prioritize certain initial claims in recent years, but I must say that when veterans in 

my District shared that they wait 6, 8 and even 10 years and more 

to resolve a meritorious appeal of service-connected disability 

claim, I find that more than just alarming, and certainly unacceptable. 

I imagine that both members of the dais and witnesses at the 

table will agree with that assessment. These claims for service connected disability benefits need to be adjudicated and explained correctly the first time. And when the appellate review is needed, that 

process must be thorough, swift and very fair. 

This issue cannot be minimized or ignored as the VBA has consistently reportedly increased figures on the number of appealed 

claims, which currently sits near 290,000. The Board of Veterans’ 

Appeals reports an inventory of approximately 60,000 appeals and 

project explosive increases in coming years. 

That means that over 350,000 appeals are currently stockpiled. 

Some have bounced back and forth in the process for again, well 

over a decade. And each stage of the appellate system constitute 

delays, and multiple years, it is not weeks or months, it is years. 

So despite the existing statutory requirements, we now know 

that it the appeal claims are often placed on the back of the burner 

in favor of VA deciding initial claims as the VA reports that the 

notices of disagreement period can offer sometimes over 400 days. 

The average length of time in the next step of the appeals process between the filing of the substantial appeal and the issuance 

of a board decision is 960 days. 

By the VA’s reported figures, nearly half of the BVA decisions result in remand, which often extend the veterans delay by additional years. Unfortunately, the delay alone is not the sole problem 

facing the veterans in the appellate system. 

I understand just 2 months ago, the Court of Appeals for veterans’ claims held the Secretary of Veterans Affairs in civil contempt, citing the Department’s gross negligence in ignoring any 

veterans who repeatedly raised concern on an appeal that had been 

remanded to the Department. The court noted that the veterans 

were frustrated because the VA seemingly acts with little urgency 

on remanded claims. 

As to this particular case, the court noted that the VA’s inactions, ‘‘Conjured a vision of a drowning man, watched by a lifeguard, in a nearby boat, equipped with life preservers and rescue 

ropes, who decides to do nothing, even though the drowning man 

is blowing a whistle and firing flares to call attention to his plight.’’ 

That is pretty strong language, but ladies and gentlemen, we have 

real problems within the system. 

I anticipate that our panelists this morning will provide helpful 

information on their respective roles as well as challenges to the 

existing process. From the Veterans Administration, including also 

the Appeals Management Center, and Board of Veterans’ Appeals, 

veterans service organizations and attorney advocates, I thank you 

all for coming today and I would like to briefly welcome our witnesses. 

On the first panel we have Ms. Beth McCoy, Deputy Under Secretary of Field Operations. Thank you for being here on behalf of 


VACREP0180 with DISTILLER
3 

the Veterans Benefits Administration who is accompanied by Mr. 

Ronald Burke, Director of the Appeals Management Center and the 

National Capital Region’s Benefits Office. Also on the panel is Ms. 

Laura Eskenazi, the executive in charge and vice chairman of the 

Board of Veterans’ Appeals. 

And after we conclude with panel one, we will see seat a second 

panel consisting of Mr. Gerald Manar, Deputy Director of National 

Veterans Service, Veterans of Foreign Affairs; Mr. Zachary Hearn, 

Deputy Director for Claims, Veterans Affairs and Rehabilitation 

Division within The American Legion; Ms. Diane Boyd Rauber, Associate General Counsel for Appeals with Paralyzed Veterans of 

America. Mr. Paul Varela, Assistant National Legislative Director 

of Disabled American Veterans; and Mr. James Vale, Director of 

the Veterans Benefit Program of Vietnam Veterans of America. 

Then panel 3 will include Mr. Barton Stitchman, Joint Executive 

Director of the National Veterans Legal Services Program; Mr. 

Kenneth Carpenter, founding member of the National Organization 

of Veterans Advocates. 

With those introductions compleat, I also thank the member who 

is not on this committee but who has expressed an interest in today’s hearing’s topic, I would like to ask unanimous consent that 

Representative O’Rourke be allowed to participate in today’s hearing. 

Hearing no objection, so ordered. 

Thank you all for being with us again today, and I now yield to 

our ranking member for her opening statement. 

[THE PREPARED STATEMENT OF CHAIRMAN RALPH ABRAHAM AP- PEARS IN THE APPENDIX] 

OPENING STATEMENT OF RANKING MEMBER DINA TITUS 

Ms. TITUS. Thank you, Mr. Chairman. I want to congratulate you 

on your recent election to represent Louisiana’s Fifth Congressional 

District, and also on your appointment to the chair this very important committee. 

I was fortunate to have a very productive relationship with the 

former chairman, Mr. Runyan. And I look forward to continuing 

this committee’s tradition of working in a bipartisan fashion to be 

sure that we provide the benefits that all our veterans deserve. 

I am excited to be the ranking member of this subcommittee, and 

I look forward to the work we have outlined and are going to be 

undertaking in this Congress. 

As many of you in this room know, the problems with the appeals process is a recurring topic in this subcommittee. Since joining the subcommittee 2 years ago, I have been concerned about the 

looming backlog of appeals at the VA. Almost 2 years ago, in June 

of 2013, our subcommittee met, and I raised the concerns that we 

are trading a claims backlog for an appeals backlog. Trading the 

devil for the witch, so to speak. As we clean up the claims, are we 

going then to create a problem with appeals? 

My statement then is equally applicable today. I warned at that 

time of an impending appeals tsunami and the need to have a plan 

to address the anticipated growth in the number of appeals. 

While the VA and the VBA have increased their output, all the 

metrics continue to show that the problem is growing. And vetVerDate Aug 31 2005 08:58 Feb 23, 2016 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 Y:\97-993.TXT PAT

VACREP0180 with DISTILLER
4 

erans in Nevada and across the country are waiting far too long 

for a VA decision. 

As you heard the chairman, who gave some pretty compelling 

statistics, it is just taking too long. Nationally the average length 

of time to receive a decision from the VBA in 2013 was 1,255 days. 

That is nearly, 31⁄2 years, 31⁄2 years. That is way too long. 

In Nevada, there are close to 1,400 appeals waiting to be adjudicated. And when a veteran comes to my office to say what has 

happened to my appeal, it is not very encouraging to go tell him, 

we don’t know and it is going to take 3 years before we find out. 

That is just not acceptable. 

I am concerned that as we address this problem, we haven’t been 

provided with a detailed plan of how we are going to address it in 

an overall fashion. We are once again receiving piecemeal recommendations instead of a comprehensive plan. I think we need to 

take action so we don’t get too far behind and we are not having 

this exact same hearing 2 years from now. 

In Congress here, we need to work collaboratively with the VA 

and with the VSOs to come up with that plan and create a system 

that will deal with these appeals in a timely fashion. But we need 

also to ensure that while we are doing that we are giving them a 

full and careful evaluation, we are not just rushing through the 

process. 

In the 113th Congress, I highlighted a need to form a task force 

that would include the key stakeholders, would meet, have a 

hands-on approach, and come up with such a plan they could 

present to us. I appreciated at that time Chairman Miller’s support 

for the idea and it eventually did pass the House. 

Today, I plan to reintroduce that same legislation and I would 

welcome members of this committee to join me as cosponsors. 

It is unfortunate that we have lost two years during this time 

when we could have had a comprehensive plan completed, and then 

we would be ready to meet the challenge as opposed to talking 

again about what we might need to do. 

Now, I understand that the VA has conducted a study to better 

understand the appeals process from the veteran’s standpoint and 

I look forward to having you all share that with me and the members of this committee and the chairman especially. 

To me, the situation is really clear too many veterans have waited too long to have their appeals evaluated. It is up to us to try 

to work with the VA to improve that system and improve it fast. 

We need a better plan and I think that commission will help us get 

there. We need ideas from the experts so we can get to work. 

Another idea our subcommittee should explore is one that has 

been proposed by Mr. O’Rourke and Mr. Cook. And I am glad Mr. 

O’Rourke is here to create a fully developed appeal, similar to the 

fully developed claims initiative that has been so popular, so I hope 

we will hear more about that. 

Again, thank you, Mr. Chairman. I look forward to working with 

you and I am glad we are starting off early on this issue. 

[THE PREPARED STATEMENT OF RANKING MEMBER DINA TITUS APPEARS IN THE APPENDIX] 

Mr. ABRAHAM. Thank you very much. 


VACREP0180 with DISTILLER
5 

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

statement? 

I would like to welcome our first panel seated at the witness 

table, good afternoon. We are going to first hear from Ms. McCoy 

and then we will hear from Ms. Eskenazi. 

STATEMENT OF BETH MCCOY 

Ms. MCCOY. Mr. Chairman, ranking member, members of the 

subcommittee. Thank you for the opportunity to discuss VA’s commitment to reducing the pending inventory of appeals and increasing efficiency within the process. 

The VA has made significant progress, 60 percent reduction in 22 

months, on its goal to eliminate its disability claims backlog, which 

is any rating claim that is pending more than 125 days, and improve the quality of its decisions on claims. 

VBA set a record production in fiscal year 2014 over 1.3 million 

claims completed without sacrificing quality, which at the claim 

level is at 91 percent now, compared to 83 percent in 2011. Looking 

at quality down at the medical issue level, the accuracy is at 96 

percent. 

Amidst VA’s record-breaking production we remain committed to 

making the appellate process more timely and efficient for our Nation’s veterans and their families. 

With this increased rating production, VA’s volume of appeals 

has grown proportionately. Historically, the rate of appeal has remained steady over about the last 20 years, regardless of production or quality. VA’s historical administrative appeal rate has remained constant at about 10 to 11 percent of all claimants filing 

a notice of disagreement or what we call an NOD. And about 4 to 

5 percent then completing an appeal to the Board of Veterans’ Appeals. 

These statistics indicate that veterans tend to exercise their right 

to appeal at the prevailing rate regardless of the nature of VBA’s 

initial decision. This data also reflects there is no correlation between accuracy of the initial claims decisions and the rates of appeal. 

In fiscal year 2014, VBA received 145,000 NODs, which equates 

to about 11 percent of the claims decided by VBA that year. 

The majority of the appellate process is conducted at VBA’s regional offices before the case is transferred to the Board for a final 

agency decision. Each regional office is required to review the appellant’s claim file, many of them are multi-volume files, and obtain or make substantial effort to obtain all the evidence that is 

relevant to the case. 

Due to the open record for appeals, appellants can submit new 

evidence or make new arguments at any time resulting in many cycles of additional development. 

During the review, the RO will also grant additional benefits as 

warranted along the way, allowing veterans to receive compensation benefits more quickly. 

It should be noted that approximately 72 percent of appeals are 

from veterans who are already in receipt of compensation benefits. 

VBA also oversees the Appeals Management Center, or the AMC, 

in Washington, DC, which was established in 2003. It is a centralVerDate Aug 31 2005 08:58 Feb 23, 2016 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 Y:\97-993.TXT PAT

VACREP0180 with DISTILLER
6 

ized resource for processing of appeals remanded by the Board for 

additional development, about two-thirds of which are due to additional evidence received after they have been certified to the Board. 

VBA allocates significant resources to appeals in its regional offices, about 950 full-time employees right now, and at the AMC, 

about 191 full-time employees. 

Members of the appeals teams in the regional offices and AMC 

are dedicated to working appeals only during normal business 

hours, and have been completing disability compensation claims 

during overtime hours. 

In fiscal year 2014, VBA took almost 182,000 appeal actions, an 

increase of 13.4 percent from the prior year. VBA is also redesigning the manner in which employees are evaluated. We have 

launched a performance standard work group comprised of our 

leaders, union leaders and employees to do the work. To fundamentally change performance standards of claims processors from taskoriented points to a system that is one focused on veteran outcomes. The effort also includes input from others outside of VA on 

how performance is measured in other agencies and in the private 

sector. 

Just as we have transformed the rating claims process, we are 

looking also to transform the appeal process, using employee training, tools, streamlining processes and implementing modern technology. It is not something we can do ourselves, we count on working with Congress, the veterans service organizations and other 

stakeholders to explore long-term legislative solutions that provide 

veterans the timely and meaningfully right of appeal that they deserve. 

This concludes my remarks. I will be happy to address any questions you have. 

[THE PREPARED STATEMENT OF MS. MCCOY APPEARS IN THE AP- PENDIX] 

Mr. ABRAHAM. Thank you. 

Ms. Eskenazi, you are now recognized for 5 minutes. 

STATEMENT OF LAURA H. ESKENAZI 

Ms. ESKENAZI. Thank you. Good morning, Chairman Abraham, 

Ranking Member Titus and subcommittee members. My name is 

Laura Eskenazi. I am the vice chairman and executive in charge 

of the Board of Veterans’ Appeals. As you noted with me from the 

Veterans’ Benefits Administration is Beth McCoy, Deputy Under 

Secretary for Field Operations, and Ronald Burke, Director of the 

Appeals Management Center. 

Thank you for inviting us here todays to discuss VA’s commitment to providing veterans with timely and quality appeals decisions. We are here today representing the dedicated hardworking 

employees at VA, many of whom are veterans or family members 

of veterans. 

Working closely with Secretary McDonald, all of us are deeply 

committed to increasing efficiencies that we may provide our Nation’s veterans with the outstanding service they deserve. 

The VA appeals process is very different from any other appeals 

process. It is not one in which a single appeals office in VA assesses whether to affirm or reverse a prior decision. The responsiVerDate Aug 31 2005 08:58 Feb 23, 2016 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 Y:\97-993.TXT PAT

VACREP0180 with DISTILLER
7 

bility for processing appeals in VA is shared between the Veterans 

Benefits Administration and the Board of Veterans’ Appeals, which 

is why you see both offices represented at the table today. 

The VA appeals process is complex. It has multiple stages, it is 

non-linear. The process is heavily set in law with a continuous 

open record that welcomes submission of new evidence and new arguments from the veteran at any time. 

As a result of this open record framework, the matter on appeal 

often no longer resembles the initial claim. Moreover, the open 

record often requires VBA to cycle back to an earlier step in the 

process as opposed to advancing to a final Board decision. This is 

required to comply with the legal requirements set forth in statute 

and binding case law to provide the veteran with the right to one 

review on appeal to the Secretary. 

Throughout an appeal, the VA has the duty to assist the veteran 

in establishing his or her appeal by ensuring that the record of evidence is complete, and current for purposes of adjudication. 

Given that nearly all appeals involved medical disability determinations, and that medical conditions evolve, appeals are frequently sent back or remanded to gather new evidence, and issue 

a new decision on that new evidence, which the veteran can then 

appeal back to the Board. 

The landscape of the veterans appeals process changed in 1988 

with the establishment of the United States Court of Appeals for 

veterans claims. As a result of the legal complexity that has developed with court review, it has become increasingly challenging for 

VA to complete an appeal by reaching a final decision. Simply put, 

the current design of the appeals process is incompatible with timely final appeals decisions. We have seen the remand rate from the 

Board rise steadily over the years since judicial review from a low 

of 23 percent in fiscal year 1990, to over 45 percent in the last 3 

fiscal years. 

During the past year, VA has actively participated in collaborative discussions with the veterans service organizations on ideas 

for reform. One concept that gained traction was to provide veterans with a choice of a different, more streamline avenue of appeal. This voluntary choice is the core principle of what has been 

referred to as the fully developed appeal, or FDA. 

While the FDA would not be a silver bullet, it would offer a more 

efficient finality-driven approach, and perhaps serve as a model for 

other streamlining ideas. 

In conclusion, veterans are waiting too long for final appeals decisions under the current legal framework. We are very thankful 

for the work by Congress, this committee, and other stakeholders, 

including the veterans service organizations, to explore long-term 

solutions to provide veterans with the timely appeals process they 

deserve. 

Thank you. I would be happy to answer any questions from the 

committee. 

[THE PREPARED STATEMENT OF MS. ESKENAZI APPEARS IN THE AP- PENDIX] 

Mr. ABRAHAM. Thank you, Ms. Eskenazi. 

I will begin the questioning and then we will recognize the ranking member and other members of our panel, several come to mind. 


VACREP0180 with DISTILLER
8 

I have got a figure here, and you can tell me how accurate it is, 

I am told it is accurate. It goes from 2012 to 2014, it is from the 

Department of Veterans Affairs, it says ‘‘59 percent of all Board decisions contain at least one claim that required additional development.’’ Would you agree or disagree with that premise? 

Ms. ESKENAZI. That sounds accurate. 

Mr. ABRAHAM. You stated in your remarks that this is a different 

process, it is non-linear. And the general broad question is why is 

it different from any other appeals process? And why is it non-linear? 

Ms. ESKENAZI. I am happy to answer that. In most appeals processes, you have a decision that is made, and then when someone, 

appeals it goes to an appellate tribunal who looks at the initial decision based on the record that existed at that point in time and 

decides whether to affirm the decision, saying it was appropriate, 

or to reverse the decision, saying was wrong under the law. 

In this system it is very different. We have a system that has 

been built up over decades since World War I, and has many layers 

designed in the statute, initial appeals decisions, and some cases 

that come all the way to my office, the Board of Veterans Appeals, 

but not all. And cases that do come to the Board, the Board’s 

standard of review is what is considered de novo. In other words, 

the Board takes a fresh look at everything and is not saying whether the first decision was necessarily right or wrong, it is just a new 

decision. 

Mr. ABRAHAM. I understand that. 

Ms. ESKENAZI. The other key aspect, if I may just continue, is 

that open record. We are not just looking at a frozen record, we are 

constantly getting new evidence. 

Mr. ABRAHAM. It would seem that if this has been in place for 

decades as you say, it agreeably has not worked at any level that 

certainly we can move to change the non-linear process to something more applicable to modern technology, to do a much better 

job. 

Ms. ESKENAZI. Great comment. As I said in my opening statement, everything changed with the creation of the judicial review, 

the United States Court of Appeals for Veterans Claims. 

Mr. ABRAHAM. 1988. 

Ms. ESKENAZI. Yes, 1988 the court was established. You took an 

already multilayered process that made sense when it ended in the 

agency and then added another layer of review which has contributed to the churning that we see in the process. 

Mr. ABRAHAM. Another question here, what percentage of cases 

in the Board’s inventory are those which have been returned from 

either the AMC or regional office following a BVA remand order? 

Ms. ESKENAZI. On an annual basis, the Board last year, for example, fiscal year 2014, we remanded about 45 percent of the cases 

that we decided. We decided 55,000 decisions which was the most 

ever for the Board since the court was created. Generally, about 75 

percent of cases that are remanded returns to the Board. When a 

case is remanded, BVA obtains the additional evidence and they 

issue a new decision. So some appeals are granted at that point 

and do not return to the Board. 

Mr. ABRAHAM. How many come back from the AMC? 


VACREP0180 with DISTILLER
9 

Ms. ESKENAZI. About 75 percent of remands are returned to the 

Board. 

Mr. ABRAHAM. Okay. 

What subset of these cases have already been subject to two or 

more BVA remand orders? 

Ms. ESKENAZI. It is common that the cases are remanded more 

than one time, sometimes for the same matter, sometimes for 

things that have changed in the interim. Sometimes for changes in 

the law that have taken place in the interim. So it is very common 

that cases are remanded more than once. 

Mr. ABRAHAM. You mentioned the VDA, a newer process, that is 

coming online. Where do we stand there? 

Ms. ESKENAZI. I am sorry? 

Mr. ABRAHAM. The VBMS. 

Ms. ESKENAZI. Yes, VBMS is essentially a electronic claims file, 

so for as long as the Department has done these cases they have 

been in paper form, some of them quite voluminous. Several years 

ago we moved towards the electronic claims folder, which is the 

Veterans Benefits Management System. For claims processing, it is 

more than just a record, it is a very robust database that performs 

its—a lot of functions that were previously manually done. 

Mr. ABRAHAM. How effective is that VBMS for the VBA? 

Ms. ESKENAZI. For the Board we are users the VBMS, instead of 

looking at files in paper, we will look at files on the computer 

screen, but at this point, that is what we are using it for, for the 

Board, is simply viewing the records of evidence. 

Mr. ABRAHAM. Okay. 

Ms. Titus. 

Ms. TITUS. Thank you, Mr. Chairman, Ms. McCoy, I would just 

ask you what the VA has done in terms of planning to address this 

problem that we know is coming, who has been involved in that 

planning? Have you looked at the need for more staffing or other 

resources? And what about alternatives like prioritizing appeals? 

Ms. MCCOY. Thanks for that question, ma’am. We have looked 

at this with all of our partners, with the Board of Veterans’ Appeals, with the veteran service organizations, with congressional 

support, looking at all the sort of opportunities that we can find to 

make this process better for veterans and their families. 

I would say that we are in the process right now of adding about 

300 full-time employees in VBA, which by the beginning of fiscal 

year 2016 we will then add that number to our appeals cadre 

across the country. So that we have added some full-time employees, but we are also looking at efficiencies that will be gained with 

the electronic record in VBMS. Right now on the rating side we 

have about 94 percent of our ratings pending claims are electronic 

claims in VBMS. And that number is growing as far as the appeals 

every day. 

Ms. TITUS. Could you address the issue just metioned, about the 

appeals that are remanded. And what are some of the causes for 

those remands, both internally and externally? I know you said a 

number of them are caused by external problems. 

Ms. MCCOY. Absolutely. There are a lot of due process protections built into the appeals process. We make a decision an initial 

decision on a case. I mentioned in my opening statement about 72 


VACREP0180 with DISTILLER
10 

percent of appellants are receiving compensation, and about 56 percent of them are receiving 50 percent or more in evaluations. So 

it is important for us to focus on that initial rating claim to get 

those benefits in folks’ hands. It is equally important to focus on 

appeals. 

We receive a notice of disagreement in an informal appeal, and 

we take action on that. That can include a step—we issue a statement of a case. We may also grant a benefit at that point and issue 

another rating decisions. 

If the appellant decides to make a formal appeal and file a form 

9, then we can have additional statements to the case. There are 

decision review officer hearings before and after that certification. 

There are multiple stages in the appeal process to make sure the 

veteran has their day in court, they are allowed to be heard, that 

we make sure we gather all of the evidence. And because some of 

these appeals do pend over a period of time, conditions do worsen. 

I do want to emphasize that when we see a worsening, when we 

obtain additional evidence that warrants additional benefits, we 

pay those benefits right away. 

Ms. TITUS. I would ask Ms. Eskenazi to kind of address that 

issue of the 72 percent of the claims who are already receiving 

some kind of benefits. If that is the case and they are already getting something, does it makes sense to prioritize appeals? 

Ms. ESKENAZI. Well, though they are receiving some degree of 

benefits, they have a right to continue to pursue all types of benefits. I mean, even veterans receiving 100 percent disability compensation can still continue appeals. So grade of payment does not 

have any affect on the appeal. 

In terms of prioritizing, you know, certainly under the law currently in existence again rate of payment does not stop the right 

to appeal. 

We have many cases in the system in which veterans are receiving payment at 100 percent and they still continue appeals, and 

that is certainly their right to do so. 

Ms. TITUS. Is there any system that makes sense as a way to 

prioritize? 

Ms. ESKENAZI. I am sorry? 

Ms. TITUS. Is there any kind of system that you can think of that 

would make sense for prioritizing claims? 

Ms. ESKENAZI. Well, the question really becomes what do veterans believe would be fair for them, because although they may 

be receiving a high benefit on one disability, many strongly feel 

that they should also receive that same rating for other disabilities. 

And they have that right under this very due process system that 

we have. 

Ms. TITUS. I know that the claims process has undergone some 

changes where you can fast track smaller claims, you have whole 

approaches to some, different kind of priorities. I just wonder if we 

can do that in the appeals process. 

Ms. ESKENAZI. At the Board of Veterans’ Appeals we are required 

to decide appeals in the order in which they are placed in the docket. So that is a very strict priority order. We do not have the ability 

to decide appeals outside of that strict order. 


VACREP0180 with DISTILLER
11 

So for example, remanding claims, they save their place in line. 

When remands come back to the Board, they are naturally older 

and they go right to the front of the line. As the Board continues 

to have more remanded cases and those come back, it becomes 

more challenging to reach those newer appeals because we have to 

do the older ones first. 

Ms. TITUS. And since it is always open, is there any definition 

of backlog? 

Ms. ESKENAZI. We talk in terms of inventory, there are so many 

stages in the appeals process and many appeals resolve at the 

early stages, and many appeals continue through all the stages. 

And even preparing for this hearing, we are were asked to look at 

the 10 oldest appeals at the Board and at that point in time, and 

we have some appeals that have started in the late 1980s again 

around the time the court was created. 

They look very different today than they looked when they were 

first decided, but it is very exemplary of the veterans right to keep 

on pursuing. And VA’s duty is to assist the veteran in trying to establish whatever claim it is that they are seeking. That is also part 

of the reason that we have the remand rate is to try and get that 

additional evidence to try to substantiate the benefit rather than 

simply just denying it. 

Ms. TITUS. Thank you, Mr. Chairman. 

Mr. ABRAHAM. Thank you, Ms. Titus. 

Mr. Lamborn, I recognize you for questioning. 

Mr. LAMBORN. Thank you, Mr. Chairman, Chairman Abraham 

and Ranking Member Titus, congratulations to both of you for your 

appointments, I look forward to working with you and helping you 

in this important subcommittee. 

Ms. ESKENAZI. I hear from my Colorado Springs constituents 

that it typically takes 5 years from when they request a hearing 

to when a hearing takes place. For fiscal year 2014, the Denver regional office received 420 hearing slots, but there were 2,200 veterans awaiting a hearing. For this year it is projected to be 450 

hearing slots, but 2,100 veterans awaiting hearings, and that math 

doesn’t work. 

I know you touched on this already, but tell us what I can tell 

the people like Richard—I won’t mention his last name for privacy 

reasons—he has been waiting 3 years to await a decision. So what 

can I tell my veterans that you are doing to help this backlog? 

Ms. ESKENAZI. Thank you. Yes, for hearings there is quite a wait 

time and it varies throughout the country, depending on the location. One thing that the Board is doing more of is offering video 

hearings. Historically, and hearings are optional in appeals, veterans do not have to elect a hearing with a Board judge because 

you need their appeal. And we are trying to do more education on 

that, to ensure that those who do request a hearing understand 

that it is certainly not required, it is their option. 

We have a few types of hearings that we offer. Historically, one 

of our 65 veterans’ law judges will travel around the country to regional offices to sit for a week face to face with about 45 veterans 

and conduct a hearing in their appeal. 

We also offer hearings at central office here in Washington, D.C. 

and some veterans do elect that option. In recent years, we have 


VACREP0180 with DISTILLER
12 

been increasing the amount of hearings that we offer through video 

teleconference technology. That certainly is a much more efficient 

time—— 

Mr. LAMBORN. Anything else besides the video conferencing? 

Ms. ESKENAZI. For the hearing options? 

Mr. LAMBORN. Yes. 

Ms. ESKENAZI. Certainly. What we are also informing veterans is 

they can also submit their arguments in writing, and what they 

would tell the judge, they can put them in writing and send it to 

the judge again, that would move their case along a little faster. 

But certainly, hearings are an area that we need to achieve more 

efficiencies. 

Mr. LAMBORN. Now, as you know we have added a lot of staff in 

Congress during the years I have been serving. And we have added 

incentives, financial incentives, to employees in the VA to do a faster and better job. Of course, we don’t want to sacrifice either one 

of those, speed and accuracy. How are those incentives working, in 

your opinion? 

Ms. ESKENAZI. The board is very grateful for the increased resources we have received over the past 2 fiscal years. It has allowed us to hire over 150 new attorneys, which are so essential to 

adjudicate these appeals. 

As a result, the Board increased its output to, last year, 55,532 

appeals, which is the most in the history of the Board since the 

court review was established. So we have taken a 20 percent increase in staffing and increased our output at the Board by 30 percent. So we are very grateful for those staffing efficiencies. 

Mr. LAMBORN. And the incentives, are they helping the process 

as well, the financial incentives, bonuses, overtime, et cetera? 

Ms. ESKENAZI. The board provides some financial incentives to 

some of our staff to reward a job well done. We are more focused 

on providing timely quality decisions irrespective of that sort of—— 

Mr. LAMBORN. Thank you. My last question, within VBA, which 

Senior Executive Services, SES employees have their performance 

measured to include this important matter of appeals? 

Ms. ESKENAZI. For VBA, I will defer to Ms. McCoy. 

Ms. MCCOY. Sir, in all of our performance standards for our senior executives in the field, so for instance, the regional office directors, appeals is one element of many, many elements that are 

factored into their final performance evaluation. 

Mr. LAMBORN. It is one measurement that you take, or one metric—— 

Ms. MCCOY. Yes, it is. 

Mr. LAMBORN [continuing]. For evaluating performance? 

Ms. MCCOY. It is. 

Mr. LAMBORN. Could myself, and the staff, and the chairman see 

these standards, please? We would like to see them in writing. 

Ms. MCCOY. We will work with our legislative offices to answer 

that. 

Mr. LAMBORN. Okay, thank you so much. I will take that for the 

record. Thank you so much. 

I yield back, Mr. Chairman. 

Mr. ABRAHAM. Thank you very much. Mr. Ruiz. 


VACREP0180 with DISTILLER
13 

Mr. RUIZ. Thank you very much, Mr. Chairman, and ranking 

member for holding this meeting, this hearing. This is very important to the veterans throughout our districts and throughout our 

country. 

I am proud to represent the eastern portion of the Riverside 

County which has the ninth largest veteran population in the country. More than 50,000 veterans reside in my District alone. I am 

honored to once again represent them on this subcommittee where 

we will work together and shine a light on problems in the VA and 

provide veterans the benefits they have earned. 

Today we are focused on ensuring that veterans have the chance 

to appeal decisions on their benefit claims, which for many will 

mean the difference between access to benefits and even life and 

death. 

As today’s panelists have testified, the number of appeals pending already approaches 3,000,000 and is only expected to grow in 

coming years. As Representative Titus mentioned, because we improved the claims backlog with the sheer number 10 percent naturally will be appealed. The appeals claims will go up as well. So 

we can count on and need to be prepared to remedy that as soon 

as possible. 

We have made a commitment to caring for our veterans, and we 

owe them an answer on appeals for that care in a timely and accurate fashion. Especially when more than a quarter of veteran appeals are successful, when a decision is finally issued. So that’s one 

out of four get those decisions reversed, and get the benefit, and 

the claims, and the help that they need. 

That is why I am reintroducing the Veterans Access to Speedy 

Review Act. My bill addresses the unaccessible appeals bills backlog by increasing the use of video teleconferencing, as you mentioned, during an appeals hearing as a substitute for requiring the 

veterans to attend in person. This is evidence-based policy and I 

will give some evidence behind how that works. 

My legislation will guarantee veterans the option of video teleconferencing, guarantee them the option of video teleconferencing 

for hearings before the Board of Veteran Appeals to allow a hearing at the earliest possible date. In 2013, on average, video conference hearings were held 110 days sooner than in-person hearings. It works. 

Should any veteran prefer an in-person hearing, my bill ensures 

that person will have the final say on the manner of hearing for 

their appeal. This simple improvement will increase flexibility to 

relieve the physical and financial burdens on veterans who must 

travel to appear at appeal hearings in person. It will also streamline the review process to decrease wait times and save taxpayers 

money. The VA testified that this bill will make processing claims 

more efficient and eliminate substantial travel costs to our veterans and the VA system. 

This bill is a commonsense, cost neutral solution which is why 

it passed the full Veterans Affairs Committee by a bipartisan voice 

vote last Congress. So I urge my fellow subcommittee members to 

support this bill and start bringing veterans their earned benefits 

as soon as possible. 


VACREP0180 with DISTILLER
14 

So to the panelists, and to my colleagues, with that in mind 

would you support the increased use of veterans requested teleconferencing by the Board of Veterans’ Appeals? First, to my colleagues, if you do so, would you kindly consider being original cosponsors before I reintroduce this bill? To my Republican colleagues as well. And now to the panelists, can you describe how 

this has actually produced the results and how veterans have utilized this veteran processing tool and option? 

Ms. ESKENAZI. Certainly, I am happy to address that topic. I 

have described the types of hearings that the Board offers, and historically it has been the face-to-face, in-person hearing. We have 

had some success increasing video hearings, but under the law, we 

have to wait for the veterans to request the video hearing. And if 

we had the option to default the scheduling or a video, then certainly still welcome and allow the face-to-face for those who really 

want that option. It would just gain some efficiencies from a 

logistical standpoint. 

The face-to-face, in-person hearings require finding a judge who 

travels to areas as far as Manila. And obviously—we have 65 

judges right now and they also work intensively on signing decisions. So you can schedule more video hearings without the barriers of the travel. So that can lend to those efficiencies in the time 

saved that you referenced. 

Mr. RUIZ. How have the veterans responded to that opportunity? 

Ms. ESKENAZI. We have had a really successful increased rate of 

video hearings. And with the new technology it has been very helpful. When we started this back in the 1990s, the technology was 

not too great, all tube televisions and clunky recorders, but everything is state-of-the-art technology, digital recording. And in fact, 

we don’t see any difference in the outcomes of appeals where there 

is hearings by video, versus hearings face to face. The outcomes 

have no statistical difference. 

Mr. RUIZ. Thank you very much, my time is up. All of my colleagues will receive a copy of the bill that I will introduce, and 

hopefully you all will consider being original cosponsors. Thank 

you. 

Mr. ABRAHAM. Mr. Costello. 

Mr. COSTELLO. Thank you. My question is for Ms. Eskenazi, and 

ultimately, the question is going to be how and what stakeholder 

support do we need in order to transform the appeals process with 

legislative reform. I thought that you laid out very well for me 

what the Veterans Traditional Review Act in 1988 did to complicate—it is not to suggest that we shouldn’t have that law—but 

to complicate the synchronizing that with the way you go about developing a claim and handling it judicially. All within the context 

of have an open record. I can appreciate the need for an open 

record. We are dealing with veterans, we are not dealing with a 

land use hearing or a criminal matter where you have your day in 

court, if you didn’t make your argument, you are done. 

Here I think, particularly with new evidence possibly coming 

about or a claim not being fully ripe when the claim is made, but 

still the need to get that claim in the pipeline because you need the 

care or the benefit. 


VACREP0180 with DISTILLER
15 

I can also appreciate from the remand perspective that twothirds of the reason for a remand is because of additional evidence 

or due to a change in circumstances after the claim arose, so I can 

understand that. Clearly, though, there is a problem with the remand process here and how that keeps claims in the system for a 

very, very long time. 

It seems to me that there needs to be a remand reform element 

to how we address this legislatively. It needs to be fair to veterans. 

It also needs to enable you to streamline this process so that when 

a veteran is submitting a claim, either as much of that claim comes 

about or every alternative theory or justification in an argument 

that can be made is made at that time. But share with me, as you 

talk about clearly being a stakeholder in this from a legislative reform perspective, what we can do to help reduce the number of remands, either on the way in the door by making the claims easier 

to process, or if more evidence is needed and that is why it is being 

remanded, isn’t there a way to maybe short circuit the time lag on 

the remand in order to get that evidence back in the door? What 

are your thoughts? How do we make it a more streamline process? 

Ms. ESKENAZI. Great question and great summary of the constraints that exist in the process today. 

One thing I would note is we are very thankful for the support 

that was given to the Camp Lejeune Act recently which provided 

that for evidence that the veteran or the veteran’s representative 

submit with the VA form 9, that is the formal appeal stage, that 

evidence may come straight to the Board and be reviewed without 

having to send it back for another decision. Now, that is for appeals filed February 2013 and later, which the Board is not quite 

working that time frame yet, but that will certainly help in the future. 

This is a process, because as I indicated, we are dealing with 

medical conditions and medical conditions evolve, time is somewhat 

the enemy. And so, we need to keep things moving along at a 

steady pace so that decisions can be made without lengthy lapses 

of time that allows for conditions to change. Because it is not only 

the submission of evidence from the veterans or new arguments, 

but like I mentioned, VA has an obligation under the duty to assist 

to ensure that we have everything. 

Another interesting constraint in the system is at the point of 

the Board hearing where the judge meets with the veteran, it is at 

a point that is supposed to be the end of the process. Yet, it is a 

conversation that takes place where oftentimes new things are illuminated and that contributes to having to send that back. 

Mr. COSTELLO. How much or how often or is it feasible at that 

point in time, before a decision is rendered, knowing that there 

may not be the type of evidence needed to justify the claim, but 

perhaps also knowing that that evidence may exist or that the 

claimant should go out and obtain that evidence? 

What I fear is that, okay, you don’t have the evidence denied. 

And then you are in the pipeline up the chain, which just becomes 

more frustrating rather than holding back and maybe rescheduling 

the hearing. Does that happen? Is there more robust activity that 

could happen at the lower adjudicatory level so that it doesn’t end 

up knowingly getting or predictably getting remanded. 


VACREP0180 with DISTILLER
16 

Ms. ESKENAZI. Certainly. And many appeals do resolve at those 

initial stages in the Department. So after the notice of disagreement is received by VA and certainly if the veteran meets with the 

decision review officer, a large number of appeals are resolved at 

those early stages. 

For ones that continue through and particularly come all the way 

to the Board, it is really a variety of reasons that lead to the need 

for a remand at that point. Some of it is changing conditions, some 

of it is just new allegations, some of it is changes in interpretations 

of the law that the court issues in the meantime. All that drives 

the remand cycle. But again, it is in an effort to try and help substantiate that claim as opposed to denying it and perhaps shortcutting a due process matter. 

Mr. COSTELLO. And so do you feel that from a legislative perspective, reforms can be made in order to streamline the process or do 

you feel that that process can be resolved within your department? 

Ms. ESKENAZI. I think that legislative reform is absolutely needed. And as I indicated in my opening statement, there has been a 

lot of discussion about different ways to streamline the processing 

steps in the Department, not to shortcut a benefit for the veteran, 

but to achieve the same results that we are receiving today, just 

with less steps in the process so we can move things along in a 

more timely fashion. That is part of, again, the FDA. I know Congressman O’Rourke has that bill or the express bill, or Express Appeals Act in the FDA, that the VSOs have been working on. I do 

think that there is some value in considering those options. 

Mr. COSTELLO. Thank you. 

Mr. ABRAHAM. Ms. Brownley. 

Ms. BROWNLEY. Thank you, Mr. Chairman. 

I wanted to ask about the money morning workload report, 

which is helpful with regards to our oversight and tracking of the 

current claims. And I am wondering if there could be a creation 

similarly for the appeals process. 

I understand that it is different, the open record framework that 

you have been speaking about, but I think it is important to have 

that kind of transparency and our ability to be able to oversee and 

track that we are improving and improving—excuse me, the appeals process as a tool. 

Ms. MCCOY. Thank you for that question. We do have some information on the Monday morning workload report relative to appeals. I think that Laura and the Board also provided annual 

chairman’s report that gives quite a bit of information, but we certainly would engage in the discussion for how we can add more information and be more transparent. 

Ms. BROWNLEY. Well, I would very much appreciate that, if you 

are willing to commit to it, because I think an annual report is one 

thing, but to have that sort of weekly update so that we can track 

it, I think, is also helpful and important. 

I wanted to also direct some questioning around the Veterans 

Benefit Management System and wanted to get a response from 

you to talk about how if there is any progress towards planning for 

an IT interface with that system so that we can better address our 

appeals? And are you doing something and if so, where are we in 

that process? 


VACREP0180 with DISTILLER
17 

Ms. MCCOY. Absolutely. When we launched the Veterans Benefits Management System, our electronic paperless processing system, just in the past couple of years, in that timeframe we have 

more than 1 billion scanned images in VBMS currently. I mentioned earlier we have more than 94 percent of our pending rating 

workload in VBMS. 

Mr. Burke at the Appeals Management Center has about 97 percent of the remands are paperless as well and we are growing in 

the number of notice of disagreement appeals at that stage and the 

form 9 appeals at that stage. It is about 50 percent at the NOD 

stage, the appeals are paperless, and about one-third are paperless 

at the form 9 stage. 

So we are working there to get more paperless and appeals as 

well. We find great efficiencies in a paperless system. In particular 

in appeals in our history have had great, I call competition for the 

claims folder. So if there was the one paper claims folder at the 

medical center for an examination, we would have to wait if something else came in. 

If it was at the Board of Veterans’ Appeals, we would have to 

wait for that file to come back before we could take action on 

maybe a new claim. So with that one paper claims folder, we all 

wanted to have our hands on at the same time. We are able to do 

that in the Veterans Benefits Management System, so that is a big 

plus. 

As far as the functionality for workload management, we have 

more and more of that functionality being built in on the rating 

side, and also more and more automation than we have started to 

add and is additionally planned. 

As far as the Board, we have been working with them, they are 

in the two systems working with VACOLS and using VBMS as access to view and read the file. We have, again, focused initially on 

the rating side to get started and we are looking to expand that 

on the appeals side. 

Ms. BROWNLEY. And do you have any time frame on the appeals 

side when you might be fully up to speed or fully, you know, operational in terms of paperless? 

Ms. ESKENAZI. I am happy to address that question. The board 

has been leading an effort of gathering what types of requirements. 

We had the assistance of a contractor in the fall looking at all portals in the department into the appeals process because the Board 

hears appeals not only from VBA; that is certainly the most, but 

we do receive appeals from NCA and VHA as well. 

So we have a high-level plan to ensure that what is designed 

works for the entire enterprise, not just one part. And we are very 

hopeful. I mean, the 2016 budget is not set yet, but we are very 

hopeful that we will be able to move out with some funding on that 

planning. 

Ms. BROWNLEY. So if the funding is there in 2016, you might be 

complete by 2016? 

Mr. ESKENAZI. I don’t know about complete but certainly in a 

more positive way forward. 

Mr. BROWNLEY. Thank you. 

Thank you, Mr. Chairman. 

Mr. ABRAHAM. Mr. Bost. 


VACREP0180 with DISTILLER
18 

Mr. BOST. I will yield. 

Mr. ABRAHAM. Okay. 

Mr. O’Rourke. 

Mr. O’ROURKE. Mr. Chairman, Ranking Member Titus, thank 

you for allowing me to join you today in the hearing. 

Ms. Eskenazi, I didn’t fully catch what you said in your opening 

statement about a fully developed appeal. It seemed to diverge 

from your written testimony. Could you repeat that or expand upon 

what you said? 

Ms. ESKENAZI. Certainly. What I referenced was the concept of 

providing veterans with a choice of a different type of appeals process, and that was the core concept that was discussed during the 

past year with the VSOs where you provide the veteran with notice 

at the time that they elect an appeal and allow them to go the traditional route that we have today or allow them to try a different 

route where the appeal would immediately come to the Board. 

And you would have to give them the right type of explanation 

but allow them to make that informed decision and give them the 

opportunity to opt out as well. If they opted for that program and 

then later changed their mind, certainly they could slip back into 

the normal process. So that was the concept that was discussed, 

and I believe some of the VSOs will talk about it in more depth 

today, and it is just one of these ideas of how can we provide the 

same ultimate benefits to veterans with just a streamlined process. 

Mr. O’ROURKE. The bill that we introduced last year and we are 

planning to reintroduce again in this session of Congress with Mr. 

Cook of California would essentially do that, give the veteran a 

choice. The VA would establish a pilot program. It would be an alternative. They would have to come with their appeal fully baked, 

ready to go, and would sacrifice the ability to add additional evidence. And for that, at least in our concept of this, you would cut 

two-thirds off the current wait times. You would get a much faster 

response. 

You know, it still would be upwards of a year, which seems like 

a long time to me, but it is far better than two and a half or three 

years, which is the standard. And then to some of Mr. Costello’s 

line of questioning, you would also eliminate the remands back to 

the regional offices, and BVA would retain jurisdiction. 

I have personally no pride of ownership on this. If you all want 

to do it administratively, if somebody else has a better way to get 

there, I am interested to hear from DAV and others on their ideas 

about this. I will get behind that. 

But let me ask you this; could you implement what you just described or what I just described administratively? Do you need 

Congress to do anything, or could you just do this yourself? 

Ms. ESKENAZI. One of the biggest constraints for the Board in 

doing it without legislation is our requirement by law to decide 

cases in the order in which they are placed in the docket. So if we 

bypass those middle steps, but the case got to the Board only to 

then have to wait in line behind all the others, that is not really 

providing any real effective outcome for the veteran. It is almost 

a false promise, and that is very heavily set in statute. 

Mr. O’ROURKE. That is the part that you need law to change, an 

act of Congress? 


VACREP0180 with DISTILLER
19 

Ms. ESKENAZI. Yes. Absolutely. 

Mr. O’ROURKE. So you are committed to the concept. You are 

supportive of that whether it comes through this bill or some other 

bill. Those parts of it that you could change and implement administratively, you are committing today to doing that, and those parts 

which I just understand to be that one that you just identified that 

require an act of Congress, you will help this committee in ensuring that we have the appropriate language to do that. 

And we could get this done this session of Congress and have it 

running if we could get that bill to the floor this year, before the 

end of this year, before the end of 2015? 

Ms. ESKENAZI. Certainly. Thank you so much for your support. 

We view this as a team effort. There is a lot of stakeholders, and 

we are all looking to do what is best for our veterans, so the team 

effort approach is the best approach. Thank you. 

Mr. O’ROURKE. Great. Really pleased to hear that. 

Thank you, Mr. Chairman. 

Mr. ABRAHAM. Thank you. 

I am going to open a second round of questioning. What needs 

to happen right now for the Board’s computer system to better connect with the VBMS? 

Ms. ESKENAZI. Thank you. So I presume you are referencing our 

database, which the acronym is VACOLS, Veterans Appeals Locator System—I forgot a word there. It is a database that we have 

had in place since the 1990s, and it is an Oracle database. It is 

very antiquated, and it is a workload tracking database. It does not 

contain the official record, but it is a workload management tool. 

Mr. ABRAHAM. So you need a new software update? 

Ms. ESKENAZI. Well, we really need everything to be merged into 

one database, whether it is somehow linked or subsumed. VBMS 

is the robust enterprise—— 

Mr. ABRAHAM. Who is running point on that? I mean, who is taking that by the horns, so to speak, and actually doing something 

today? Is anybody addressing that as we speak? 

Ms. ESKENAZI. The board has been strongly advocating for this 

need, and everybody agrees with the concept. The initial focus of 

VBMS was to get it built up and running for the claims processing, 

and that is well on its way. But what we have seen is you really 

don’t get to a point where you end that because there is always 

new programming features that are needed. 

We have done an in-depth study, as I indicated, as to what we 

need for the appeals part of the process from an electronic standpoint. So as we receive the funding, which we are very hopeful to 

receive, we will be ready to go with a plan as opposed to just getting money and then having to create a plan. And obviously we will 

have to work with—it is a heavy process to work with IT programmers to ensure that they build exactly what is needed. 

Mr. ABRAHAM. Is VBA supporting the Board in this endeavor? 

Ms. MCCOY. I would like to answer that, sir. We are supportive 

of making sure that the Board has the appropriate functionality. It 

is a matter of we work with our VBMS Program Management Office, we work closely with IT, and we have a prioritization of things 

that, a long wish list of things that we would like to have built into 

VBMS. It is a matter of prioritization, and it is a matter of fitting 


VACREP0180 with DISTILLER
20 

enough in each of our every-three-month releases so that we can 

have that functionality. 

Mr. ABRAHAM. Okay. Why does VBA not have functionality now? 

Ms. McCoy. Either one. 

Ms. MCCOY. I would say it is a matter of prioritization. We have 

right now in the middle of additional functionality, additional automation to support the rating side. It is in competition. It is high 

on the list, but there is not enough, I would call it room, in each 

of our releases to develop and release the functionality right now 

that we all want for the Board. 

Mr. ABRAHAM. Okay. Laura, do you have anything to add? 

Ms. ESKENAZI. Only that, you know, that is a huge priority for 

the Board for appeals. We are using VBMS as indicated to view the 

claims file. We really need to maximize the efficiencies from an IT 

standpoint removing manual processes where possible. 

We know that VBMS can never replace people in terms of the adjudication process, the review by the attorney and the judge; but 

we know that there is a number of efficiencies that we can put in 

place to better manage work flow and to mitigate risk in tracking 

all of those appeals by using different databases. 

Mr. ABRAHAM. Just one quick follow-up. I am certainly all for 

better efficiency. I actually read the appeals process four times last 

night trying to get the mechanics of it, and I was given this cartoon, and I use that very loosely because there is nothing funny 

about this process. 

I see no time constraints. If a veteran, he or she brings a claim 

into a regional office, I see no time restraints that decision is made. 

I see no time restraints on the veteran’s part of any time restraints. The only time constraints I see is when the veteran has 

to do a Form 9 or he has a certain amount of time to do a Letter 

of Disagreement, but there is no time constraints placed on the VA 

itself as far as getting the work done in an efficient manner. What 

are your thoughts on that? 

Ms. ESKENAZI. That is an accurate observation, and certainly we 

have heard that from veterans before. We will give them periods 

of time to respond to documents or processes and—— 

Mr. ABRAHAM. What about giving the veterans, holding them on 

a time constraint also? Has that been discussed among you guys? 

Ms. ESKENAZI. Certainly. I mean, the goal in the appeal is to 

make sure that we get it right. And oftentimes when additional evidence is needed, whether we have to go get a new examination or 

to seek Federal records perhaps from another agency, these things 

can take varying degrees of time. So—— 

Mr. ABRAHAM. Years evidently. 

Ms. ESKENAZI. Yeah. Too long. 

Mr. ABRAHAM. Too long. Okay, thank you. 

Ms. Titus. 

Ms. TITUS. Thank you. 

I would just ask Ms. McCoy, you said you were hiring 300 new 

people. I wonder what kind of people they are, how you made this 

decision, if you are sending any of them to Nevada? 

Ms. MCCOY. Great question. So the folks in our appeals teams 

are some of the most experienced individuals that we have, particularly our Decision Review Officers. They have the whole broad 


VACREP0180 with DISTILLER
21 

spectrum of responsibilities on appeals, and they often do some of 

the training for others in the office, so it takes a long time to develop that experience level. 

So this is kind of a two-step approach that we are taking. So this 

year currently, we are adding 300 individuals across the country to 

our Veterans Service centers, so bringing them in at the introductory levels and getting them trained so that we then will have 

them up to speed, and targeting the beginning of fiscal year 2016, 

we can then promote those 300 FTE slots into the appeals teams. 

Ms. TITUS. And the Nevada part? 

Ms. MCCOY. I would have to look on that, ma’am. There are 

some for Nevada. 

Ms. TITUS. All right. Let me know. 

Ms. MCCOY. Okay. 

Ms. TITUS. Thank you, Mr. Chair. 

Mr. ABRAHAM. Mr. Zeldin. 

Mr. ZELDIN. Mr. Abraham, I look forward to serving with you 

and Ms. Titus. 

It is an important subcommittee. I represent the 1st Congressional District of New York. Suffolk County has the highest veterans population of any county in New York State, the second-highest population of any county in the country. We are served by the 

VA in Northport. 

I was serving in the State Senate previously, and we received a 

lot of outreach from people who were so frustrated with the backlog 

of the Federal system. They were reaching out to their State Senator, their councilmen, their county legislator, whoever could possibly help them. I am honored to serve on this committee and this 

subcommittee, and I appreciate you being here and anything that 

you can possibly do to help reduce that backlog. My office, we are 

looking to be partners with you with the challenges that you face. 

And thanks again for yielding. 

Mr. ABRAHAM. Thank you. 

Mr. Bost. 

Mr. BOST. Thank you, Mr. Chairman. 

I sit here quietly, and I have tried as a state legislator to help, 

as was spoken a while ago, our veterans. And when you see the 

amount of bureaucracy they have to deal with, and I understand 

as I listened to everyone that we are trying to reduce and get that 

opportunity so they can receive benefits quicker. 

Just listening from this panel, and that is why I passed, Mr. 

Chairman, on asking a while ago, we can’t even figure out what the 

amount of, level of bureaucracy that we have to climb through, 

through your agency as elected officials. How devastating is that to 

our veterans as they try to move through this process? I see that 

you are trying, and I am glad to hear on the computer system and 

that we are trying to update that. 

Is it our fault as Congress over the years that we created this, 

in your opinion? Or is it the fault of the agency in the case that 

they themselves have created intergovernmental rules that make it 

so difficult? I know we, you know, are going to try to answer, ask 

questions that go on the record, but this is the type things that my 

constituents want to know. 


VACREP0180 with DISTILLER
22 

How do we straighten it out? How do we lighten it up? These 

people have served us. They have claims. They need the process to 

move fairly quickly, and we are talking three years, five years, ten 

years. You work with it every day. How do we lighten it up, speed 

it up, and how do we work with you to achieve that? 

Ms. ESKENAZI. Great observation, and certainly one that we 

share in terms of trying to explain this very dense process to veterans who many of which just want a decision. 

One thing to keep in mind is this process, as convoluted as it 

may appear, it is in an effort to constantly provide veterans more 

opportunities. It is never to say no. It is so much due process that 

it is an approach that is driven to constantly look for that piece of 

evidence, hear that next contention, add on that next claim perhaps the downstream element, and keep trying to help the veteran 

get to the point where they feel satisfied with the decision that 

they have. 

And it is somewhat subjective for the veteran as to when that 

point arrives. Some veterans are satisfied early in the process. 

Other veterans, such as the ten oldest appeals we submitted to this 

committee, have been pursuing claims appeals that have evolved 

since the late 1980s. 

And on the one hand that is a very unique feature in offering so 

much due process to not say no, that it is again it is a paternalistic 

type of a process. The consequence, the flip to that, though, is the 

time that is involved. And it is counterintuitive to someone to explain that when they ask the simple question how long does it 

take, and when will I get my answer? 

And when you have a process that is designed with so many 

stages and so many points that we welcome new evidence, we look 

for new evidence, we look for new arguments, and that may be required to cycle back, it is just those two principles kind of conflict 

against each other. 

So then the question can then become, well how can we still provide those same outcomes for our Nation’s veterans with a process 

perhaps a little more streamlined. And as we know, the core of this 

process was designed after World War I, and there has been many 

changes in the law over the time but usually adding more process. 

And when the Court was created, it was another layer of review 

added on top. 

And veterans are receiving more benefits than ever as a result 

of this process, so how can we get those same outcomes with perhaps just a more streamlined set of steps. And that is why the concepts that are imbedded in the idea of the fully developed appeal, 

the Express Appeals Act, those types of concepts are worth pursuing if we can get stakeholder agreement to see if that can be one 

avenue to offer more of a streamlined process. 

Mr. BOST. Thank you. 

Mr. ABRAHAM. Ladies and gentlemen, thank you for being here. 

We appreciate your presence. You are now excused, and we will 

pause just for a minute while we seat the second committee. Thank 

you. 

On this second committee, we are going to get as much of it done 

as we can before we have to recess for voting, so we are going to 

move along very efficiently. 


VACREP0180 with DISTILLER
23 

Welcome, everyone. Mr. Manar, you are recognized to present the 

testimony of Veterans of Foreign Wars for five minutes. 

STATEMENT OF GERALD T. MANAR 

Mr. MANAR. Thank you. 

Chairman Abraham, Ranking Member Titus, and members of the 

subcommittee, thank you for the opportunity to present to you the 

views of the 1.9 million members of the Veterans of Foreign Wars 

of the United States and its auxiliaries on this important topic. 

I would like to talk about some of the issues facing VA and the 

Board of Veterans Appeals, as well as suggestions for addressing 

some of those problems. The VA says that it made over 1.3 million 

decisions in compensation and pension disability claims in 2014, 

which is over 150,000 more decisions than ever before. At a 10 percent appeal rate, VBA would be expected to receive approximately 

130,000 notices of disagreement based on those decisions, roughly 

13,000 more than in the previous year. Sadly, those appeals will be 

in line behind the nearly 300,000 appeals VA currently has. These 

appeals affect real veterans and their families. 

Mr. Chairman, there are over 4,900 appeals pending in the New 

Orleans regional office. Nevada has 1,400 appeals pending, while 

California has 16,500 appeals awaiting action in their three regional offices. As bad as these numbers are, they pale in comparison to the over 25,000 appeals pending in Florida. If past is prologue, those appeals may wait over three years before VA transfers 

them to the Board of Veterans Appeals. 

There are several reasons why the appeals workload has grown 

from 130,000 in 2004 to about 300,000 today. With the advent of 

judicial review in 1988, a significant number of decisions by the 

courts have forced the VA to more closely follow the letter of the 

law and regulations. On several occasions VA has been forced to readjudicate thousands of decisions, increasing work in both regional 

offices and the Board of Veterans Appeals. 

Finally, many court decisions required veteran law judges to 

write clearer, more comprehensive decisions for appellants. These 

are all good things. However, much work had to be redone, and decisions today may take somewhat longer to write, reducing production at the Board of Veterans Appeals. 

With the creation of the Secretary’s twin goals of no claim older 

than 125 days and quality at a 98 percent level, VBA has focused 

with military-style precision on reducing the disability claim backlog. Appeals team personnel, including decision review officers, 

were frequently directed to process other work. As a consequence, 

appeals grew from 255,000 at the beginning of 2014 to close to 

300,000 today. 

It is time for VA to declare victory and start processing the rest 

of its work. What actions can be taken to stop the increase and 

start driving down the appeals workload? There are no magic bullets to solving this problem. Solutions must be crafted with this injunction in mind, that any solution that helps VA process more appeals cannot be done at the expense of veterans and the rights they 

currently enjoy. That is what makes this really hard work, finding 

solutions that allow VA to process appeals faster without hurting 

the due process rights of veterans and their families. 


VACREP0180 with DISTILLER
24 

We make five specific recommendations in our written testimony. 

These recommendations include an increase in BVA and VBA staffing, release of the Statement of the Case within 30 days of receipt 

of a Notice of Disagreement where there is no additional evidence 

submitted, eliminate the new material evidence requirement to reopen a claim, and reenergize the decision review officer position to 

make it more effective in reducing appeals. 

Finally, building on the ideas of a committee member, service organizations and representatives from the VA worked together last 

year to explore and expand on a fully developed appeal initiative. 

The idea is to fast track certain appeals to the BVA following a 

waiver of existing rights by claimants. While we support the FDA 

concept, there are hurdles which need to be overcome before the 

idea is ready for testing. 

The most significant problem involves the waiver of rights by 

claimants. In order to be effective, any waiver must be based on 

a clear understanding of the decision made by VA. As we describe 

in our written testimony, it is our belief that the notices provided 

by VA to many claimants simply do not give them the information 

they need to understand the reasons for the decision. Many notice 

letters fail to detail specific evidence used in making the decision. 

Further, many decisions offer only conclusions as a substitute for 

analysis of the evidence and reasons and basis for the decision. As 

a consequence, claimants don’t have enough information to decide 

whether the decision was most likely correct, what the evidence 

showed, and what evidence is needed to obtain a different result. 

Without this information, many claimants do not have enough information to knowingly waive the procedural rights they have 

under the current appeals process. 

In conclusion, we applaud the VA and members of this committee 

and the VSO community for working together to find solutions to 

reduce the appeals backlog. However, the key to making any FDA 

initiative work are two factors. The claimant must have access to 

all the evidence considered by VA in making its decision, and the 

claimant must be fully informed of the reasons and basis for each 

decision made by the VA. 

Mr. Chairman, this concludes my statement. I will be happy to 

answer any questions you or the committee members may have. 

[THE PREPARED STATEMENT OF MR. MANAR APPEARS IN THE AP- PENDIX] 

Mr. ABRAHAM. Thank you. Mr. Hearn, you have five minutes. 

STATEMENT OF ZACHARY HEARN 

Mr. HEARN. Thank you. 1,461 days, this is the number of days 

in a standard four-year armed services enlistment. 1,937 days, this 

is the average number of days a veteran will wait to have a claim 

adjudicated from initial filing through the various stages of appeals. It is staggering that a veteran may have to wait longer to 

have a claim properly adjudicated than they may have served 

through their service contract. 

Good afternoon, Chairman Abraham, Ranking Member Titus, 

and members of the committee. On behalf of National Commander 

Helm and the 2.4 million members that comprise the Nation’s largest wartime veterans’ service organization, the American Legion is 


VACREP0180 with DISTILLER
25 

eager to share our research and the firsthand experience regarding 

the appeals process. 

As you know from my written testimony, the American Legion 

has more than 3,000 accredited service officers assisting more than 

700,000 veterans nationwide. Just over a year ago the American 

Legion testified regarding VA’s accuracy in adjudication based 

upon the American Legion’s Regional Office Action Review Program and challenged VA’s accuracy statistics. 

Understanding the importance of accuracy is critical to fixing the 

appeals process. When VA fails to accurately adjudicate claims 

from the beginning, veterans are forced into the far lengthier and 

more complicated appeals process. Completing claims accurately 

the first time is the very simple answer to eliminating large volumes of claims in the appeals system. 

VA identifies a backlog claim as a claim that has not been adjudicated within 125 days. VA does not consider appealed claims as 

backlogged. They merely refer to them as an inventory. But let’s 

be clear. For the nearly 290,000 veterans awaiting adjudication of 

their appeals, a figure larger than the population of Cincinnati, 

they consider their claims backlogged. 

Nearly 75 percent of claims presented at the Board of Veterans 

Appeals are found to either have been inappropriately denied at 

the regional office or inadequately developed and prematurely denied. VA can correct this by starting at the regional office. Too 

often claims remanded by BVA are remanded for improper development and for failing to follow their legally mandated duty to assist. 

Often American Legion national appeals representatives will note 

VA did not offer consideration regarding if a condition manifested 

secondary or was aggravated by a previously service-connected condition. 

If VA examiners were compelled to consider if conditions manifested in ways other than directly related to service, many remands 

for examinations would be eliminated. The American Legion’s 

ROAR trips have repeatedly noted this in our written reports. 

While VA asserts it does not place a higher priority on the amount 

of claims adjudicated, its current work credit structure does not address accuracy in its metric, which rewards speed over quality. 

In the past year, the American Legion established Veteran Crisis 

Command Centers at various locations throughout the country resulting in the awarding of nearly $1 million in retroactive benefits. 

These events allowed veterans to gain instant personalized access 

to Legion and VA personnel. In nearly every location, we came 

across veterans with claims that had errors in their adjudication. 

Fortunately through the joint efforts of the American Legion and 

VA, we are able to correct these errors. However, for these veterans 

the years of suffering and the impact it had on their employment 

and their families cannot be restored simply through the disbursement of a retroactive payment. 

Today if a claim is remanded by a BVA judge, the instructions 

are forwarded to the Appeals Management Center to have requisite 

development conducted. These remands, or returned claims, come 

with clear and distinct instructions from the judge, yet the American Legion consistently sees cases remanded multiple times despite having clear instructions provided by that BVA judge. This is 


VACREP0180 with DISTILLER
26 

what is known as the hamster wheel of remands where a veteran 

remains in adjudication purgatory while waiting for VA to conduct 

proper development and finally render a decision. 

The most common questions we get from veterans are why does 

it take so long? Why can’t VA get it right the first time? Or are 

they just waiting for me to die? Often you can hear the pain in 

their voice. As an advocate, it kills me to constantly hear their 

frustration and desperation. This is what veterans face, an adjudication process that rewards the quick and not the accurate, an 

appellate process that repeatedly notes errors in development, and 

adjudication that may cause years of hardship for our Nation’s veterans. 

During a testimony last summer, former Ranking Member 

Michaud stated, ‘‘There should not be a victory lap taken by VA if 

they eliminate the backlog of claims meanwhile having an abundance of appeals in inventory.’’ The American Legion wholeheartedly agrees. The greatest impact on the appeals process would 

be eliminating the need to appeal in the first place. VA needs to 

eliminate the current work credit structure that places a greater 

emphasis on quantity of claimed adjudicated rather than the quality of those adjudications. 

An increased emphasis on training and the manner that the 

training is delivered to its adjudicators needs to happen now. As 

VA works to eliminate the backlog, we need to ensure that they are 

not moved from a backlog claim to a backlogged appeal. Most importantly, we need to ensure that our veterans finally begin receiving the benefits and services they have earned through their dedicated service. 

Again, on behalf of our National Commander Michael Helm and 

the 2.4 million members of the American Legion, we thank the 

committee for inviting us to speak today, and I will be happy to answer any questions the committee may have. 

[THE PREPARED STATEMENT OF MR. HEARN APPEARS IN THE AP- PENDIX] 

Mr. ABRAHAM. Thank you, Mr. Hearn. Ms. Rauber. 

STATEMENT OF DIANE BOYD RAUBER 

Ms. RAUBER. Chairman Abraham, Ranking Member Titus, and 

members of the subcommittee, Paralyzed Veterans of America 

would like to thank you for the opportunity to offer testimony regarding the appeals process. There are many problems contributing 

to delayed appeals which has become more apparent with VA’s 

focus on reducing the claims backlog. A major cause of delay is the 

high number of remanded appeals. 

Approximately 45 percent of appeals are remanded often due to 

an order for a new VA medical examination. This action occurs 

even when favorable private medical evidence or opinions from VA 

treating physicians are in the record. 

In PVA cases the record often includes extensive medical information from a Spinal Cord Injury Center physician who has specialized expertise and an intimate knowledge of the veteran’s medical condition. Too often for PVA members, the opinion of a C & 

P examiner who reviews the file and sees the veteran once is 


VACREP0180 with DISTILLER
27 

weighed more heavily than the opinions of the Spinal Cord Injury 

Center experts. 

When unnecessary resources are used to seek medical information already in VA’s possession, not only is the veteran’s individual 

appeal delayed, the overall process slows. At times these requests 

are also in conflict with the benefit-of-the-doubt doctrine which requires the VA and the Board to grant a claim when there is a proximate balance of positive and negative evidence. 

When an appeal is remanded, it typically returns to VBA jurisdiction through the Appeals Management Center. It is at this step 

where appeals tend to stall and be subject to multiple remands because the AMC or regional office fails to ensure the Board’s specific 

orders are fulfilled. For example, the Board may order a new examination by a medical specialist which is instead completed by a 

nurse practitioner, or the Board poses specific questions for response from the examiner which are not fully completed, or the VA 

fails to follow VHA procedures for scheduling the examination, resulting in the veteran missing it. These are just a few examples, 

but when the AMC fails to ensure compliance with the Board’s orders, the appeal must be remanded again, adding significant delay 

before the veteran receives a final board decision. 

Remanded appeals can take a year or more to complete. If 45 of 

every 100 decisions are remanded, it stands to reason that the 

number of appeals will only increase as each remanded appeal that 

is not granted in full must return to the Board for further review 

while original appeals continue to be certified to the Board. New 

original appeals linger while older remanded appeals with earlier 

docket dates are decided. 

A greater reliance on private medical evidence or VA treating 

medical evidence and more consistent application of the benefit-ofthe-doubt doctrine could reduce remands. A review of examination 

scheduling procedures would also be helpful, as would a review of 

AMC training, procedures, quality review, and accountability, to 

ensure proper handling of remands. 

Furthermore, when the Board determines a veteran is entitled to 

advancement on the docket due to age, financial hardship, or serious illness, that designation should be honored and enforced on remand. 

There are other ideas to reduce delay. PVA has partnered with 

other VSOs as well as VBA and Board Administration in a working 

group on how an expedited appeals pilot program might allow certain appeals to be decided in a more timely fashion. 

It is the intent of PVA with VSO partners to support the introduction of bipartisan legislation to implement such a pilot program. 

In addition, PVA continues to support the strengthening of the 

DRO program and requiring DROs to work solely on appeals where 

their expertise can be of best use. 

As has been discussed by several of the other panel members, an 

unexpected challenge has occurred in the area of technological improvement. PVA supported VA’s adoption of VBMS. Unfortunately 

VBMS lacks appeals-friendly features to allow it to be efficient. We 

are pleased that the Board’s administration has included VSOs in 

meetings to collaborate on ideas to improve VBMS specifically for 

appeals work. However, adequate funds must be ensured so the 


VACREP0180 with DISTILLER
28 

Board can accelerate VBMS improvements and continue to engages 

VSOs in that process. 

Finally, Mr. Chairman, when a claimant files a meritless appeal 

or compels a representative to do so, that appeal clogs the system 

and draws resources away from legitimate appeals. Since 2012, 

PVA has required clients to sign a notice of limitation when they 

execute their power of attorney to acknowledge we will not appeal 

every adverse decision and reserve the right to refuse to advance 

any frivolous appeal in keeping with VA regulations. 

To help a veteran make the most informed decision regarding the 

merits of an appeal, the VA should provide improved case-specific 

notice of the initial rating decision. 

Mr. Chairman, we would like to thank you once again for allowing us to address this truly important issue, and we look forward 

to working with you in the 114th Congress. 

I would be pleased to take questions. 

[THE PREPARED STATEMENT OF MS. RAUBER APPEARS IN THE AP- PENDIX] 

Mr. ABRAHAM. Thank you, Ms. Rauber. We are going to take a 

recess and go vote. We will be right back. Mr. Varela, you can continue for 5 minutes, please. 

STATEMENT OF PAUL R. VARELA 

Mr. VARELA. Good afternoon, Chairman Abraham, Ranking 

Member Titus, and members of this subcommittee. DAV appreciates being invited to testify today to discuss the challenges facing 

the 360,000-plus veterans, dependents, and survivors with pending 

appeals. Over 95 percent of these pending appeals pertain to disability compensation benefits. Our written testimony today provides the subcommittee with a number of recommendations; however, my oral statement will focus on just a few. 

First, VBA and the Board require adequate resources to process 

appeals. While, this is not the only solution, it is certainly part of 

it. It is estimated that VBA’s total appeals inventory is roughly 

360,000, of which roughly 65,000 are within the jurisdiction of the 

Board, and roughly 32,000 of these appeals are within the Board’s 

physical possession. It is no understatement to say the appeals inventory is too large and this number continues to climb every day. 

The fact that appeals keep rising suggests a mismatch in manpower needed to process the appeals at both the Board and regional office level. Also contributing to the growth of appeals has 

been VBA’s reliance on the appellate workforce to process claims 

for disability compensation. VBA also relies on the appellate workforce in order to meet their 2015 goals of no claim pending over 125 

days with 98 percent accuracy. This practice diverts personnel to 

focus on claims processing. VBA utilizes all available resources to 

achieve their 2015 goal, which contributed to a drastic increase in 

pending appeals. 

Second, VBA’s Decision Review Officer Program must be 

strengthened as it is one of the most critical and indispensable procedures available to appellants within the current appeals processing model. While an appellant elects the DRO option, it affords 

the option to resolve issues locally at the regional office level. For 

those appellants represented by DAV, our national service officers 


VACREP0180 with DISTILLER
29 

have direct access to decision review officers and often work with 

them to identify potential solutions to resolve appeals. 

Given the critical nature of the DRO process, it must be 

strengthened and resourced adequately. Furthermore, the appellate 

workforce must focus their efforts on the appeal inventory and not 

repurpose to work claim-related initiatives. Unfortunately, VBA 

traded one backlog for another due to their all-hands-on-deck approach to realize the 2015 goals. 

Third, Congress, VA, and stakeholders must look at innovative 

reforms to improve the appeals process. One innovation has become 

known as the fully-developed appeals pilot program. There is no 

one solution to remedy the problems facing veterans, dependents, 

and survivors within the appeals process. DAV, working together 

with Congress, stakeholders, VBA, and the Board believe that a 

good solution exists to offer relief for some with appeals. The FDA 

pilot program is meant to share some of the similarities and build 

upon the successes of the fully-developed claims program. 

The FDA pilot would offer potential appellants a third option if 

they choose to file an appeal. They could choose the traditional appeals process. They could choose the decision review officer review 

process, or the FDA process. In the pilot FDA, an appellant would 

elect to forego several procedural steps within the current standard 

appeal processing model. 

Some components of an FDA election trades the issuance of a 

statement of the case and hearings for quicker review of the record 

by the Board, allows an appellant to supply any additional evidence 

at the time of the election, allows for an opt-out option at any time 

up to the Board’s ruling on the appeal, would preserve all due-process rights under the current appeal processing model if removed 

from the FDA, and has the potential to save roughly 1,000 days of 

appeal processing time. 

An FDA election is not for everyone. It is not the cure-all to endall. It gives some appellants another option by offering a safe bypass around some regional office processing requirements. It not 

only benefits veterans, their dependents and survivors directly by 

saving them up to 1,000 days of processing time, but would also relieve some of the pressure at the regional office level by diverting 

FDAs directly to the Board. 

The FDA is still imperfect, but we continue to reach out to Congress and other stakeholders to assure that we arrive at a balanced, reasonable, and safe conclusion. We do want to acknowledge 

the efforts of Congressman O’Rourke, Congressman Cook, and their 

staffs for their work in the 113th Congress on the Express Appeals 

Act, which shares many similarities with the FDA proposal. 

Finally, we also want to thank the subcommittee and your staffs 

for the willingness to listen to our input, recommendations, and 

concerns, and look forward to working together with you to approve 

the appeals process, for veterans, their dependents, and survivors, 

now and into the future. 

Mr. Chairman, Ranking Member Titus, and members of this subcommittee, thank you for allowing DAV to testify at today’s hearing. I am prepared to answer any questions you or the subcommittee may have. 


VACREP0180 with DISTILLER
30 

[THE PREPARED STATEMENT OF MR. VARELA APPEARS IN THE APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Varela. 

Mr. Vale from the Vietnam Veterans of America. 5 minutes, 

please. 

STATEMENT OF JIM VALE 

Mr. VALE. Good afternoon, Chairman Abraham, Ranking Member Titus, and distinguished members of the subcommittee. Vietnam Veterans of America thanks you for the opportunity to present 

our views today. The real question that should be asked is why 

would we keep a claims system going that is wrong 70 percent of 

the time? VA-arranged decisions contain too many errors and 

Board decisions are too inconsistent. Any lasting solution needs to 

address these problems. 

It is a well-established principle that VA’s mission is to provide 

benefits to veterans and their families in a non-adversarial, proclaimant system. When Congress enacted judicial review for veterans’ claims in 1988, it did so with the clear intent to ensure a 

beneficial, non-adversarial system of veterans’ benefits. We support 

modernizing the VA system so that all veterans receive more timely and accurate adjudication of their claims and appeals. And we 

support improving the efficiency of the claims adjudication and appeals process. Nonetheless, these changes cannot come at the expense of abandoning due process and other major aspects of the 

pro-claimant system designed by Congress. 

VA’s motto is ‘‘To care for him who shall have borne the battle 

and for his widow and his orphan.’’ In practice, however, it appears 

the mission for some VA bureaucrats is to limit the government’s 

liability to our Nation’s veterans by formalizing the claims and appeals process to the point where benefits are unfairly restricted. As 

General Bradley, VA’s first administrator, said in 1946, ‘‘We are 

dealing with veterans, not procedures; with their problems, not 

ours. 

Veterans should not have to give up any of their rights in order 

for VA to process their claims and appeals more quickly. In the 

past, some VBA executives have even gone as far as to suggest reducing the notice of disagreement period from 1 year to just 60 

days, change the standard review at the Board from de novo to appellate review, close the record at the Board and eliminate all decision review officer positions. Yet, none of these suggestions actually 

benefits veterans, but it does make the VA’s job easier. 

Vietnam Veterans of America has put forth eleven suggestions in 

our testimony that will move forward to fixing the VA system. You 

each have a copy of those items. The crutch of the problem here 

is VA has an inadequate number of staff to deal with its enormous 

backlog of claims and appeals and they work in a flawed work credit system that favors quality over quantity. Therefore, we suggest 

fixing the work credit system. 

BVA’s supervisors and employees need to stop gaming the work 

credit system. It shouldn’t be easier and quicker to deny a claim 

than to grant one. VA still has to fulfill its statutory duty to assist. 

There should be no work credit awarded for taking shortcuts. If a 


VACREP0180 with DISTILLER
31 

claim is denied, no work credit should be awarded until the duty 

to assist is fulfilled. 

Next, VA should increase the number of staff. VBA needs more 

raters and DROs, and the Board of Veterans’ Appeals needs more 

veteran law judges. For example, let’s look at the Waco regional office. They only have eight DROs, yet they have over 18,700 appeals. That is 2,300 appeals per DRO. That is the highest DRO 

workload in the country. Put in another way, they have eight 

DROs trying to do the work of 30. The national average is 640 appeals per DRO. 

Mr. Chairman, would it surprise you that Waco makes up 15 to 

20 percent of all of our appeals at the Board of Veterans’ Appeals? 

The board has 65 veteran law judges. In contrast, the Social Security Administration has over 500. Clearly, the Board needs more 

veteran law judges as its appeals backlog continues to climb. An 

even better solution is a round table discussion or discussions 

among VSOs, members of this committee, and VA representatives 

to resolve these issues. 

In closing, the war against Japan lasted 1,347 days. In 2013, it 

took VA an average of 1,603 days to issue a final agency decision 

on remanded veteran appeals. Mr. Chairman, the appeal should 

not last longer than the largest war our nation has ever fought. 

Thank you for the opportunity to present our views today, and 

I should be glad to answer any questions you may have. 

[THE PREPARED STATEMENT OF MR. VALE APPEARS IN THE APPEN- DIX] 

Mr. ABRAHAM. Thank you, Mr. Vale. I will agree with that statement that you made about the appeals taking longer than the war. 

I will begin the questioning and this will be addressed to each 

of you. What I am hearing from the previous panel and certainly 

this panel, whether it is the AMC spot, the BVA, at each step of 

the process, there seems to be a log jam. Certain of you see it in 

one spot, certain in others, where the primary problem is, but evidently every step of the ladder is a major stepping in hindrance. 

So my question is to each of you—I will start with the organizations: Give me, we will say two of your solutions that you would 

implement now to help get this ball rolling very quickly. 

Mr. VARELA. I will take that question. 

Mr. ABRAHAM. And we want a brief description from every one 

of them, just a minute. 

Mr. VARELA. Okay. All the way from the Board of Veterans’ Appeals to the Appeals Management Center to every regional office, 

not only do they require the resources, which is manpower, to do 

the lifting, the heavy lifting right now, they also need to be focused 

on appellate work. When you divert the appellate workforce, which 

is marginal at best, to address all the appeals that are pending, 

what can we expect? We can expect a spike and an increase in the 

inventory. To constantly move them around and to constantly shift 

them around, we ignore the appeals, and that is just very harmful 

and detrimental to those in the pipeline. 

The other would be to continue working on the FDA proposal, 

which has been mentioned several times during our discussion, 

with Congress bipartisan support and stakeholder input to insure 

that we arrive at a good and safe conclusion on that proposal. 


VACREP0180 with DISTILLER
32 

Mr. ABRAHAM. Ms. Rauber. 

Ms. RAUBER. I think we would agree to continue to work towards 

the fully-developed appeals process, and I also think the other 

thing is really getting down to figuring out a way for the Appeals 

Management Center’s feet to be held to the fire in enforcing the orders of the Board, because we are just seeing too many cases that 

come back two, three, four times that we are briefing and presenting to the Board where the AMC has not complied with what 

the Board is telling them to do. 

Mr. ABRAHAM. Mr. Hearn. 

Mr. HEARN. I think that there is an interesting point. Repeatedly, VA will say that a certain percentage of claims are appealed, 

and they will use that as kind of their focus point. And it is true, 

but you have to remember, those are just a certain percentage of 

claims that a veteran elects to appeal. That doesn’t necessarily reflect the level of quality of adjudication. If you look at the Appeals 

Management Center, where all of these claims are subject to Board 

review following their adjudication, you see that it doesn’t stand up 

to the fire, that more and more of these claims are remanded. 

Now, if these raters are trained by the same people that are 

being trained by—of the raters out in the field, then it only stands 

to reason that you have got a bigger issue here than you would 

like. So the first thing is, that you need to make sure that the proper level of development is occurring at the regional office because 

this will stave off the need for the appeals. And until you can accomplish that, I think we are just going to be chasing our tails, is 

really what happens. 

The other thing is to get rid of this work credit system. Because, 

going back to high school economics, I remember the teacher said, 

‘‘people respond to incentives predictably.’’ Well, if you have created 

a work credit system where you are focusing on quantity versus 

quality then it is only natural that you are going to focus on pumping out as many adjudications as possible and not necessarily doing 

it in the most accurate manner. 

Mr. ABRAHAM. Thank you. 

Mr. Manar. 

Mr. MANAR. As I mentioned in my testimony, Secretary Shinseki, 

with the best of intentions, established goals which, at least initially and in informal conversations, he acknowledged were goals 

that were probably not achievable but certainly would help focus 

the Veterans Benefits Administration to begin to work more and 

more disability claims. 

However, over the years, those goals became set in concrete and 

VBA only talks about its backlog, its workload in terms of disability claims, not the appeals, not the dependency claims that 4 

years ago sat at 40,000 pending at any one time. Today, there are 

over 200,000 pending at any one time, simply because they have 

changed a work process to allow them to process disability claims 

more quickly. Everything they have done has been worshipping at 

the feet of this God of these twin goals. As I said, declare victory. 

Let’s move on from that. Let’s work on all the work. 

Resources, I agree. Both the BVA and VBA need to be appropriately resourced for the work that they have got today. I understand that it costs money, but at the same time, Congress can deal 


VACREP0180 with DISTILLER
33 

with reduced workloads and deal with the staffing issues in the 

outyears. The problem is now, and you can begin to solve it by 

throwing—I hate to say that, but throwing more people at the 

problem. 

The other thing is the quality of decisions. Many veterans appeal 

because they don’t understand what was decided. They are not told 

that they are missing one piece of evidence that could make the difference between getting the benefit they seek and not, and as a 

consequence, they appeal because they are looking for more information, or perhaps somebody who is a little bit friendlier who can 

grant where it has been previously denied. 

Now, many of these appellants learn through the long, arduous 

appeals process what was missing. But if they had that information 

at the beginning, then fewer of them would appeal. They would 

simply go out and get that piece of evidence they need. So those 

are the three things that I think are important. 

Thank you. 

Mr. ABRAHAM. Thank you. 

Mr. Vale. 

Mr. VALE. Mr. Chairman, the VA never seems to have enough 

time to do the job right the first time, but has plenty of time to 

do the job wrong over and over again. With inadequate resources, 

VA is having to rob Peter to pay Paul. Veterans’ benefits are a cost 

to war, and VA needs more resources because of the mismatch between supply and demand. The VA needs more staff to accomplish 

its mission. And also, the work credit system needs to be fixed. We 

always hear about raters being fired for not meeting their quotas, 

but we never heard of a rater being fired for poor quality. And so 

you have an agency that is underfunded with the work credit system that incentivizes quantity over quality and that needs to be 

stopped. 

And lastly, something else that would be, as far as the appeals, 

it is best to prevent an appeal. It is best to resolve at the lowest 

level possible. And as a service officer, I have prevented a lot of appeals at the regional office by being able to go directly to the rater, 

correct the problem without even having to go into the appeals 

process. And I am concerned that is going to be taken away from 

us with a national work queue, which is in my statement. 

Thank you. 

Mr. ABRAHAM. All right. Thank you, all. You guys are down in 

the trenches and you understand or know where the problems lie, 

so that is why I asked the question. Thank you very much. 

Ms. Titus. 

Ms. TITUS. Thank you. As I listen to you, I have heard Ms. Boyd 

Rauber say we need a pilot program for expedited appeals; Mr. 

Varela talked about the need to develop the full FDA; all of you 

say we need more staff and resources, hopefully those 300 people 

will help a little bit; and all of you say we need to reward staff for 

quality and not just quantity. 

I think I agree with all of that. I think those are good recommendations, and I want to work with you on them because I 

think they fit right in with the proposal I made at the very beginning that we need a serious commission to come with us, with 


VACREP0180 with DISTILLER
34 

these things spelled out, showing how we can implement them so 

this committee can then take action and not just keep talking. 

And so I look forward to working with you to see if we can’t meld 

all these things and come with a hard set of specific recommendations so we can move forward. And I appreciate it. 

Thank you, Mr. Chairman. 

Mr. ABRAHAM. I am going to go back to a second round of questions, just you and I, it looks like. 

This goes back to each member of the panel here. Tell me whether or not, explain to the committee whether you believe that a veteran who receives an initial decision by the VA is provided with 

adequate information to fully understand the decision made by the 

VA. And therefore may knowledgeably decide whether or not to file 

an appeal. And I think some of you actually answered this but I 

want to hit it one more time. Just briefly. Time is short. But give 

me a good answer, a fair, an honest answer. 

Mr. MANAR. I have been fortunate, with some of my friends on 

our legislative staff, to meet with committee staff members over 

the last couple of months, and one of the things that was mentioned at one of these earlier meetings was that your staff had just 

come back from a regional office when they looked at letters to veterans about the decisions in their cases and they were incomprehensible. 

Now, there are some letters that VA pumps out through this simplified notification letter process that are numbers-driven and can 

be understood; but where any kind of analysis of the evidence is 

required, any kind of discussion, it is largely absent. And it has 

consequences. Claimants just don’t know the reason why the decision was being made in their case. The reason could have been perfectly valid but they are not being told what it is. 

Mr. Abraham. Mr. Hearn. 

Mr. HEARN. Mr. Manar, he hit the nail on the head. The problem 

with the VA letters is it doesn’t explain exactly what is going on. 

Veterans do not realize the three criteria to meet service connection. They don’t realize you need an incident in service, current diagnosis, and a nexus statement linking the current condition to the 

incident. And so if you deny it, and nobody is talking about why 

exactly it is being denied or the letter doesn’t clearly describe that. 

And then to enter this fully-developed appeals process, you are 

kind of going down a dangerous path, that until VA provides a 

proper letter of notification, we are not doing any veterans any favors because they don’t understand exactly what they are appealing. It would be the equivalent if you were in second grade and you 

were taking a test on fractions, never taught about fractions and 

then you fail the test and the next day you take fractions again, 

nobody taught you about fractions and you fail it again. Well, there 

is no wonder why you fail them, because you were never being 

taught. 

So you need to understand exactly what is going on here, and 

until that issue is addressed then I am afraid we are just going to 

keep going back and going through this cycle all over again. 

Mr. Abraham. Ms. Rauber. 

Ms. RAUBER. And I think that is something that all of us have 

discussed in the various working group meetings that they have 


VACREP0180 with DISTILLER
35 

had, that there definitely is a need for more case-specific notice for 

a veteran, because as the others have said, you know, a veteran not 

only doesn’t understand what the basis might be for an appeal, but 

he or she also wouldn’t understand if maybe there is not a basis 

for an appeal. And I think for them to truly understand what the 

right road is to go down, they need to have case-specific notice. 

Mr. Abraham. Mr. Varela. 

Mr. VARELA. Dr. Abraham, DAV and our independent budget 

partners, since the inception of the simplified notification letters, 

which is really what we are talking about today, have taken issue 

with those letters. And we believe that they need to be improved. 

There is certainly room for improvement there. What we would 

really like to see is VBA sit down with us in a working group and 

listen to what we have to say, take what we have to say to heart 

and listen to our recommendations to hopefully, without legislation, 

improve these letters. 

To legislate better letter writing is going to be very difficult, and 

then to legislate it in a way that is understandable for the onepoint-something million claimants that are filing claims that is 

going to be even more difficult, that everybody has that same level 

of understanding. We agree, they need to be improved, and we really want to work with VBA to see those improvements come to fruition. 

Mr. Abraham. Mr. Vale. 

Mr. VALE. Mr. Chairman, the simplified notification letter does 

not provide an adequate reasoning basis for a veteran to make a 

decision. And when they presented this to us, we told them this is 

a bad idea. The abbreviation for simplified notification level is 

SNL, similar to Saturday Night Live, but we told them it is still 

not ready for prime time. It doesn’t provide an adequate reasoning 

basis. And on top of this, now they have introduced this new NOD 

form and they are calling veterans, if you want help with your appeal, check the box here and some VA will call you. And also they 

ask the veteran to ask what they think the percentage disability 

should be and we are opposed to that. But again, the simplified notification letters are inadequate, and they need to be improved. 

Mr. ABRAHAM. Okay. Thank you. 

Ms. Titus, do you have anything else? 

Ms. TITUS. I would just say as you work to improve the letters 

sent to veterans, be sure that there is an element of standardization because we have seen one region vary from another quite 

often. We want to be sure that everybody improves the letter writing, not just one particular office or a couple here, and a couple 

there. 

Mr. ABRAHAM. Well, we certainly thank you for helping our veterans. Continue to do so, please. You are excused. 

We will pause just for a minute while we seat this third panel. 

Welcome, gentlemen. So we have Mr. Barton Stichman of the 

National Veterans Legal Service Program; and Mr. Kenneth Carpenter of the National Organization of Veterans’ Advocates. 

Mr. Stichman, you are first recognized for 5 minutes, sir. 


VACREP0180 with DISTILLER
36 

STATEMENT OF BARTON F. STICHMAN 

Mr. STICHMAN. Thank you, Mr. Chairman, ranking member, and 

other members of this committee for the opportunity for the National Veterans Legal Services Program to address the appellate 

claims adjudication process. VA can do much to eliminate the disfunction that currently exists in the appellate claims adjudication 

system, but Congress can and should play a role in eliminating the 

disfunction that currently exists. NVLSP urges Congress to adopt 

five legislative solutions, which I think meet the answer to the 

questions that the chairman asked the last panel. 

First, authorize the BVA to develop evidence itself without having to remand to the AMC or regional office. 15 years ago, thenSecretary of Veterans’ Affairs, Anthony Principi, decided a partial 

solution to the hamster wheel phenomenon was to amend VA regulations to allow the BVA to develop additional evidence itself without remanding to the RO in a case in which the Board determined 

that a final decision could not be issued because additional development was necessary. 

Forcing the BVA to remand to the AMC or the local ROs 

lengthens the adjudicatory process because the BVA does not have 

direct authority over the AMC and RO, meaning the BVA cannot 

control whether the AMC or RO provides expeditious treatment or 

properly complies with the remand instructions. Allowing BVA development without a remand to the AMC or RO further streamlines the appellate process by eliminating the need for the RO or 

AMC to review the record and prepare a written supplemental 

statement of the case before the case is returned to the BVA for 

another decision. 

Second, provide the veterans organizations with the right to petition the VA General Counsel for a binding precedent opinion on the 

proper interpretation of a statute or regulation. This would address 

the lack of clear rules and precedents that burden the system now. 

By providing stakeholders, the veteran service organization, with 

the right to petition the VAGC to adopt a particular interpretation 

of the statutes of regulations that are supported by the petitioning 

VSO, the GC will be required to issue an opinion binding on the 

ROs and the BVA. Currently, the VA General Counsel has the authority to issue these binding precedent opinions on its own, but 

this authority is seldom utilized. 

Three, authorize the Court of Appeals for Veterans Claims to certify a case as a class action on behalf of similarly-situated VA 

claimants, require the VA to put a moratorium on the claims of all 

similarly-situated claimants while the case in court is pending; and 

once the court finally decides the case, require the VA to apply the 

decision to all pending claims that were subject to the moratorium. 

This streamlines the adjudicatory process for similarly-situated 

cases. 

Four, prohibit the regional offices and the BVA in a case in 

which there is positive evidence supporting the award of benefits 

from developing negative evidence against the claim unless the RO 

or BVA first explains in writing why the existing evidence is not 

sufficient to award benefits. 

One reason for the existence of the hamster wheel phenomenon 

is that in a case in which the veteran submits adequate positive 


VACREP0180 with DISTILLER
37 

evidence in support of a claim, the BVA, or even the RO, sometimes does not simply award the benefits sought. Instead, the agency extends the life of the claim by remanding to obtain yet another 

medical opinion from a VHA physician. Veterans advocates call this 

longstanding VA practice developing to deny. In addition to fostering the hamster wheel phenomenon, the practice is inconsistent 

with the pro-claimant adjudicatory process and the statutory benefit-of-the-doubt rule. 

Five, require the VBA to change its work credit system for VA 

adjudicators so that raters do not get work credit for denying a 

claim without first obtaining the evidence needed to comply with 

the VA duty to assist. 

I see my time is up, and I will be happy to answer any questions 

you may have. 

[THE PREPARED STATEMENT OF MR. STICHMAN APPEARS IN THE

APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Stichman. Mr. Carpenter, you 

have 5 minutes there. 

STATEMENT OF KENNETH M. CARPENTER 

Mr. CARPENTER. Thank you, Mr. Chairman. The National Organization of Veterans Advocates wants to thank this committee for 

offering us this opportunity to offer testimony on these very important issues. I have been assisting veterans and their families with 

VA appeals for more than 30 years. I began doing appeals prior to 

judicial review. And prior to judicial review, although the appeal 

process was lengthy, it is, in retrospect, reasonable by comparison 

to what has occurred since judicial review. 

It is easy to blame judicial review, but judicial review is not responsible for the backlog in the largely-accumulated delays in processing appeals. NOVA has three specific recommendations: The 

first recommendation would require a major statutory change; the 

second and third recommendations, we do not believe would require a major statutory change, but we do believe it would be significant. 

First, NOVA recommends the amending of 7105, which is the 

statutory provision that concerns the appeal process. We recommend the elimination of both the statement of case and the substantive appeal. These requirements are simply no longer needed. 

They had merit and reason in the prior-to-judicial-review environment. The elimination of these two currently required processes 

would cut by significant time period the delays inherent in this 

process. The requirement for a statement of case and a substantive 

appeal, in fact, now contribute to the delays, as is verified by the 

statistics. 

Second, if the committee and Congress are not willing to amend 

7105 with such a major change, 7105 at least needs to be amended 

to explicitly require the certification of an appeal and the transfer 

of that appeal to the Board within 60 days. The chairman mentioned in earlier questioning the observation that the VA has very 

few, if any, time limits imposed upon them by Congress. This is an 

implementation, this is a recommendation that will impose a specific timeframe. 


VACREP0180 with DISTILLER
38 

The current delays in getting appeals physically from the regional offices to the Board is taking too long because the regional 

office controls the certification of the appeal. Congress needs to tell 

the regional offices by statute, in no uncertain terms, that within 

60 days of the receipt of the substantive appeal, that the appeal 

will be certified and it will be transferred to the Board. 

Now, one of the potential consequences of this is that currently 

of the 70,000 appeals that the Board has, only half of them are 

physically before the Board, because the other half have not been 

transferred to the Board. This is going to put the burden of the appeal process where it belongs, with the appeal. The agency, by not 

certifying appeals, by not physically moving those claims to the 

Board, is contributing to this backlog, again, as the statistics clearly demonstrate. 

Third and finally, there are two statutory provisions that deal 

with remands and use ambiguous and unclear language for the 

handling of a remand from both court and the Board. And the statute uses the term ‘‘expeditiously handled.’’ The fact is, is unless 

this Congress by statute tells the agency what the expectation is, 

expeditious treatment is going to remain ambiguous. We recommend a 6-month action report if the remand has not been resolved within that time period. And after that date that written explanations every 6 months be provided for why there has been no 

resolution. 

The removal of the ambiguity and the imposition of specific time 

frames, we believe, will clearly assist the problems that exist with 

remands because there is no clarity of Congress’ expectation as to 

what the timeframe is to get a remand resolved. And if you don’t 

tell them, then you have seen what is going to happen. They are 

simply going to be dealt with as the VA chooses to deal with them, 

which is not acceptable. 

[THE PREPARED STATEMENT OF MR. CARPENTER APPEARS IN THE

APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Carpenter. 

Ms. TITUS. Mr. Chairman, I am afraid I have to leave, but I 

would ask unanimous consent to allow you to continue the questioning, and I will get the information on my return. 

Mr. ABRAHAM. Thank you. Hearing no objection, so ordered. 

Thank you so much for being here and for your very insightful 

questioning. 

Ms. TITUS. Thank you, Mr. Chairman. 

Mr. ABRAHAM. We appreciate you very much. 

Mr. Stichman, in your written testimony, you noted that in the 

most recent version of the annual report of the chairman of the 

BVA, the average days pending between the fine of a notice of disagreement, which begins the appeals process, I understand, and an 

initial decision of the BVA was 3 years and 5 months. However, 

you state that the time it takes for a final decision to be made on 

a claim is often much, much longer. Explain the difference there, 

please, sir. 

Mr. STICHMAN. The 3 years and 5 months is the average according to the fiscal year 2013 report by the BVA chairman from the 

filing of the NOD to the Board decision. But as we have heard 

today, the Board decision often does not finally decide the claim. 


VACREP0180 with DISTILLER
39 

45 percent of those appeals result in a remand, so the claim is 

going to continue on from there. It takes another year at the AMC, 

more years if it is remanded to the regional office. 

And then the AMC or regional office has to review the evidence 

obtained and prepare a new decision and then 75 percent of them, 

which aren’t granted, are returned to the Board, then the Board 

has to re-decide the case. The board may remand again, we have 

heard, because the regional office or the AMC didn’t fully comply 

with the instructions of the Board. That is why we recommend that 

the BVA be in charge of development as Secretary Principi envisioned 15 years ago, so the BVA can ensure right away that the 

remand instructions are followed. 

Mr. ABRAHAM. Thank you. 

Mr. Carpenter, this question will be for you, and thank you for 

your testimony. You have argued that the appeals system is struggling due to the high volume of cases remanded by the Board to 

the AMC and RO, which, as we just said, has been consistently 

around 40 percent for decades now. As you note, the Board is essentially required to remand the appeal if the case is not fully and 

sympathetically developed as required by Congress intent and enacted in the judicial review in 1988. 

I do find it troubling that the VA in 40 percent of the cases does 

not meet Congress’ intent regarding the treatment of veterans and 

their benefits. Could you discuss this a little further, as far as the 

arguments concerned? 

Mr. CARPENTER. There are really two components: The first, and 

it was mentioned in the earlier panel by the Veterans Service Organization, primarily by Vietnam Veterans of America, that the 

claim is simply not fully and sympathetically developed to its optimum before the VA makes a decision on the merits. 

Mr. ABRAHAM. So does that go back to the initial VA claim at the 

regional office? 

Mr. CARPENTER. Absolutely, and that is where the problem begins. The decision gets made and the statistics clearly demonstrate 

that the claim was not fully developed because it has to be sent 

back for another exam or for the obtaining of other records for the 

obtaining of additional evidence from other governmental entities 

and all of that should have been done before the decision was made 

in the first place. That is the first part of it. 

The second part of what we have recommended is that, frankly, 

you have to put some teeth into the remand statute. Expeditious 

treatment is, frankly, nonspecific. No one at the VA has ever defined what that means. Therefore, they do it when they do it. Congress needs to clarify that they mean expeditious treatment is 

something within a reasonable time that you will specify. If you 

specify that time, then that gives a target for them to work towards 

and they currently do not have a target. 

The clock doesn’t start running on them, and veterans and their 

representatives are simply helpless because there isn’t a remedy 

available judicially except to wait for that decision, because we 

can’t go back to court until a sufficient amount of time, which has 

been interpreted in the court’s decisions before the veterans’ court 

to be at least a year waiting on that development. And there 

shouldn’t be a full year granted. 


VACREP0180 with DISTILLER
40 

The chairman made a reference to the sanctions that were taken 

earlier against the Secretary, and what happened in that case was 

is that the VA simply lost it. If they don’t have a specific tracking 

mechanism by a specific target date by statute, then that is what 

is going to happen in this clearly overloaded system is that cases 

are going to get lost. 

Mr. ABRAHAM. Thank you, gentlemen. That is going to be the end 

of questioning. You are excused. We certainly appreciate your presence here. 

So the testimony today heard, it raises many additional questions, and I look forward to addressing these in future meetings, 

certainly addressing it with the Department itself. My colleagues 

on the committee, we will get together and talk it out very frankly, 

and the stakeholders who took the time to present their concern 

today and to those who assist the veterans on the veterans day-today, a very heartfelt thanks from me and, I assure you, the rest 

of the committee members. 

So, again, thanks everybody for being here. As initially noted, the 

complete written statement of today’s witnesses will be entered 

into the hearing record. I ask unanimous consent that all members 

have 5 legislative days to revise and extend their remarks and to 

include extraneous material. Hearing no objection, so ordered. We 

are adjourned. 

[Whereupon, at 2:08 p.m., the subcommittee was adjourned.] 


VACREP0180 with DISTILLER
41 

APPENDIX 


VACREP0180 with DISTILLERInsert offset folio 1 here 97993.001
42 


VACREP0180 with DISTILLERInsert offset folio 2 here 97993.002
43 


VACREP0180 with DISTILLERInsert offset folio 3 here 97993.003
44 


VACREP0180 with DISTILLERInsert offset folio 4 here 97993.004
45 


VACREP0180 with DISTILLERInsert offset folio 5 here 97993.005
46 


VACREP0180 with DISTILLERInsert offset folio 6 here 97993.006
47 


VACREP0180 with DISTILLERInsert offset folio 7 here 97993.007
48 


VACREP0180 with DISTILLERInsert offset folio 8 here 97993.008
49 


VACREP0180 with DISTILLERInsert offset folio 9 here 97993.009
50 


VACREP0180 with DISTILLERInsert offset folio 10 here 97993.010
51 


VACREP0180 with DISTILLERInsert offset folio 11 here 97993.011
52 


VACREP0180 with DISTILLERInsert offset folio 12 here 97993.012
53 


VACREP0180 with DISTILLERInsert offset folio 13 here 97993.013
54 


VACREP0180 with DISTILLERInsert offset folio 14 here 97993.014
55 


VACREP0180 with DISTILLERInsert offset folio 15 here 97993.015
56 


VACREP0180 with DISTILLERInsert offset folio 16 here 97993.016
57 


VACREP0180 with DISTILLERInsert offset folio 17 here 97993.017
58 


VACREP0180 with DISTILLERInsert offset folio 18 here 97993.018
59 


VACREP0180 with DISTILLERInsert offset folio 19 here 97993.019
60 


VACREP0180 with DISTILLERInsert offset folio 20 here 97993.020
61 


VACREP0180 with DISTILLERInsert offset folio 21 here 97993.021
62 


VACREP0180 with DISTILLERInsert offset folio 22 here 97993.022
63 


VACREP0180 with DISTILLERInsert offset folio 23 here 97993.023
64 


VACREP0180 with DISTILLERInsert offset folio 24 here 97993.024
65 


VACREP0180 with DISTILLERInsert offset folio 25 here 97993.025
66 


VACREP0180 with DISTILLERInsert offset folio 26 here 97993.026
67 


VACREP0180 with DISTILLERInsert offset folio 27 here 97993.027
68 


VACREP0180 with DISTILLERInsert offset folio 28 here 97993.028
69 


VACREP0180 with DISTILLERInsert offset folio 29 here 97993.029
70 


VACREP0180 with DISTILLERInsert offset folio 30 here 97993.030
71 


VACREP0180 with DISTILLERInsert offset folio 31 here 97993.031
72 


VACREP0180 with DISTILLERInsert offset folio 32 here 97993.032
73 


VACREP0180 with DISTILLERInsert offset folio 33 here 97993.033
74 


VACREP0180 with DISTILLERInsert offset folio 34 here 97993.034
75 


VACREP0180 with DISTILLERInsert offset folio 35 here 97993.035
76 


VACREP0180 with DISTILLERInsert offset folio 36 here 97993.036
77 


VACREP0180 with DISTILLERInsert offset folio 37 here 97993.037
78 


VACREP0180 with DISTILLERInsert offset folio 38 here 97993.038
79 


VACREP0180 with DISTILLERInsert offset folio 39 here 97993.039
80 


VACREP0180 with DISTILLERInsert offset folio 40 here 97993.040
81 


VACREP0180 with DISTILLERInsert offset folio 41 here 97993.041
82 


VACREP0180 with DISTILLERInsert offset folio 42 here 97993.042
83 


VACREP0180 with DISTILLERInsert offset folio 43 here 97993.043
84 


VACREP0180 with DISTILLERInsert offset folio 44 here 97993.044
85 


VACREP0180 with DISTILLERInsert offset folio 45 here 97993.045
86 


VACREP0180 with DISTILLERInsert offset folio 46 here 97993.046
87 


VACREP0180 with DISTILLERInsert offset folio 47 here 97993.047
88 


VACREP0180 with DISTILLERInsert offset folio 48 here 97993.048
89 


VACREP0180 with DISTILLERInsert offset folio 49 here 97993.049
90 


VACREP0180 with DISTILLERInsert offset folio 50 here 97993.050
91 


VACREP0180 with DISTILLERInsert offset folio 51 here 97993.051
92 


VACREP0180 with DISTILLERInsert offset folio 52 here 97993.052
93 


VACREP0180 with DISTILLERInsert offset folio 53 here 97993.053
94 


VACREP0180 with DISTILLERInsert offset folio 54 here 97993.054
95 


VACREP0180 with DISTILLERInsert offset folio 55 here 97993.055
96 


VACREP0180 with DISTILLERInsert offset folio 56 here 97993.056
97 


VACREP0180 with DISTILLERInsert offset folio 57 here 97993.057
98 


VACREP0180 with DISTILLERInsert offset folio 58 here 97993.058
99 


VACREP0180 with DISTILLERInsert offset folio 59 here 97993.059
100 


VACREP0180 with DISTILLERInsert offset folio 60 here 97993.060
101 


VACREP0180 with DISTILLERInsert offset folio 61 here 97993.061
102 


VACREP0180 with DISTILLERInsert offset folio 62 here 97993.062
103 


VACREP0180 with DISTILLERInsert offset folio 63 here 97993.063
104 


VACREP0180 with DISTILLERInsert offset folio 64 here 97993.064
105 


VACREP0180 with DISTILLERInsert offset folio 65 here 97993.065
106 


VACREP0180 with DISTILLERInsert offset folio 66 here 97993.066
107 


VACREP0180 with DISTILLERInsert offset folio 67 here 97993.067
108 


VACREP0180 with DISTILLERInsert offset folio 68 here 97993.068
109 


VACREP0180 with DISTILLERInsert offset folio 69 here 97993.069
110 


VACREP0180 with DISTILLERInsert offset folio 70 here 97993.070
111 


VACREP0180 with DISTILLERInsert offset folio 71 here 97993.071
112 


VACREP0180 with DISTILLERInsert offset folio 72 here 97993.072
113 


VACREP0180 with DISTILLERInsert offset folio 73 here 97993.073
114 


VACREP0180 with DISTILLERInsert offset folio 74 here 97993.074
115 


VACREP0180 with DISTILLERInsert offset folio 75 here 97993.075
116 


VACREP0180 with DISTILLERInsert offset folio 76 here 97993.076
117 


VACREP0180 with DISTILLERInsert offset folio 77 here 97993.077
118 


VACREP0180 with DISTILLERInsert offset folio 78 here 97993.078
119 


VACREP0180 with DISTILLERInsert offset folio 79 here 97993.079
120 


VACREP0180 with DISTILLERInsert offset folio 80 here 97993.080
121 


VACREP0180 with DISTILLERInsert offset folio 81 here 97993.081
122 


VACREP0180 with DISTILLERInsert offset folio 82 here 97993.082
123 


VACREP0180 with DISTILLERInsert offset folio 83 here 97993.083
124 


VACREP0180 with DISTILLERInsert offset folio 84 here 97993.084
125 


VACREP0180 with DISTILLERInsert offset folio 085 here 97993.085
126 


VACREP0180 with DISTILLERInsert offset folio 86 here 97993.086
127 


VACREP0180 with DISTILLERInsert offset folio 87 here 97993.087
128 


VACREP0180 with DISTILLERInsert offset folio 88 here 97993.088
129 

Æ 


VACREP0180 with DISTILLERInsert offset folio 89 here 97993.089