United States General Accounting Office

GAO Report to Congressional Requesters

September 1995 VETERANS’

BENEFITS

Effective Interaction

Needed Within VA to

Address Appeals

Backlog

GAO/HEHS-95-190

GAO United States

General Accounting Office

Washington, D.C. 20548

Health, Education, and

Human Services Division

B-260589 

September 27, 1995

The Honorable John D. Rockefeller IV

Ranking Minority Member

Committee on Veterans’ Affairs

United States Senate

The Honorable Ben Nighthorse Campbell

United States Senate

Veterans are waiting a long time for the Department of Veterans Affairs (VA) to decide their

compensation and pension claims. If they appeal a VA decision, the wait is even longer, and

many veterans will not receive benefits that they are entitled to until a final decision is made. In

fiscal year 1994, 400 veterans died while awaiting VA’s final decision.

This report, prepared at your request, discusses the need for organizations within VA that are

involved in processing claims to increase cooperation and coordination so that impediments to

processing appeals can be identified and resolved.

We are sending copies of this report to the Secretary of Veterans Affairs and other interested

parties. The report was prepared under the direction of Ruth Ann Heck, Assistant Director,

Health Care Delivery and Quality Issues. Other major contributors are listed in appendix II.

Please call me on (202) 512-7101 if you have any questions.

David P. Baine

Director, Health Care

 Delivery and Quality Issues
Executive Summary

Purpose Veterans often wait many months for the Department of Veterans Affairs

(VA) to decide their compensation and pension claims. In addition, about

40,000 veterans who annually appeal VA’s decisions wait much longer. If a

veteran appeals VA’s initial decision, he or she will wait well over 2 years

for a final decision, agency officials said. Thus, many veterans experience

a significant delay in receiving benefits that they are entitled to.

Since 1990, several studies by different groups, including GAO, VA’s

Inspector General, and VA special task forces, have addressed the untimely

processing of claims and appeals. Although the recommendations were

wide-ranging, one area frequently cited was the need for the autonomous

organizations in VA to work together to identify and resolve problems.

Senator John D. Rockefeller IV, then Chairman of the Senate Committee

on Veterans’ Affairs, and Senator Ben Nighthorse Campbell asked GAO to

report on the status of VA’s appeals backlog and on VA’s progress in

implementing recommendations from the studies, especially those

concerning interaction among VA organizations.

Background Adjudication of veterans’ claims and appeals is a complicated process. The

process is designed to provide the veteran with every opportunity to

substantiate a claim. The process begins at any of the Veterans Benefits

Administration’s (VBA) 58 regional offices (VARO) where adjudication staff

marshal pertinent evidence and decide if the veteran is entitled to benefits.

An important part of that evidence often is an examination conducted by

physicians in the Veterans Health Administration (VHA).

If the veteran disagrees with the VARO decision, the veteran may appeal to

the Board of Veterans’ Appeals. The Board may decide the claim or

remand (return) it to the VARO for further development and

reconsideration. For 55 years, the Board’s decisions were final. However,

in 1988, the Veterans’ Judicial Review Act created the Court of Veterans

Appeals. Veterans may now appeal Board decisions to the Court.

Results in Brief VA’s appeals process is increasingly bogged down, and the outlook for the

future is not bright. The act and Court rulings expanded veterans’ rights

but also expanded VA’s adjudication responsibilities. VA is having difficulty

integrating these responsibilities into its already complex and unwieldy

adjudication process. Since 1991, the number of appeals awaiting Board

action has increased by 175 percent and average processing time has

increased by over 50 percent.

Page 2 GAO/HEHS-95-190 VA Appeals Processing
Executive Summary

The current legal and organizational framework—which involves several

autonomous VA organizations in claims adjudication—makes effective

interaction among those organizations essential to fair and efficient claims

processing. A common theme of many study recommendations is the need

for VA organizations to work together to identify and resolve problems. VA

officials have not, however, implemented many of the recommendations,

believing that other formal and informal mechanisms are effective.

Yet GAO found evidence that in spite of these mechanisms, problems are

going unidentified and unresolved. For example, GAO found instances in

which VBA officials were unaware of Board interpretations, guidance and

practice were inconsistent with Board interpretations, and questions about

interpretation had been raised but not resolved. Unless consistent

interpretations are developed, VARO decisions will continue to be

remanded, delaying benefits for some veterans and increasing the

workload for the Board, VBA, and VHA. In addition, unless VA clearly defines

its adjudication responsibilities it will not be able to determine whether it

has the resources to meet those responsibilities and whether some new

solutions may be needed, including amending laws defining VA’s

responsibilities, or reconfiguring the agency.

Principal Findings

Appeals Process

Increasingly Bogged Down

Over 47,000 appeals were awaiting decisions at the end of 1994, and this

backlog is likely to increase. Although the number of appeals filed has

been decreasing slightly, the number decided by the Board has been

shrinking rapidly—50 percent since 1991. Even more alarming, almost

one-half of the Board’s decisions are not final; they are decisions to

remand the claim back to the VARO. Based on recent history, VAROs will

again deny three-fourths of these claims and return them to the Board for

action.

VA attributes much of its claims processing difficulties to increased

responsibilities placed on it by the 1988 act and Court decisions,

particularly the need to explain the “reasons and bases” for decisions and

to meet VA’s “duty to assist” the veteran in filing and proving a claim. VA

officials also said that the act and Court decisions have placed greater

emphasis on procedures, resulting in remands for failure to follow

Page 3 GAO/HEHS-95-190 VA Appeals Processing
Executive Summary

technical procedures even though the final outcome was not expected to

change.

Recommendations to

Ensure Organizations

Work Together Not

Implemented

Several studies have recognized the need for the autonomous

organizations involved in adjudication to work together to resolve

processing difficulties. For example, in 1990 GAO recommended that a

focal point be appointed to ensure cooperation in resolving problems.

Recommendations have been made by others for task forces and working

groups to develop strategic plans, formulate guidance, and recommend

improvements in processing procedures.

Although VA agreed to implement each of these recommendations, it did

not do so. VA officials pointed to both informal and formal meetings of

organization staff and officials as meeting the intent of these

recommendations. Among other activities, they pointed to (1) monthly

meetings by the Chairman of the Board, the Under Secretary for Benefits,

and the Deputy Secretary of VA to discuss timeliness of claims processing

and (2) efforts by Board, VBA, and General Counsel staff to inform VARO

staff of Court decisions.

Autonomous Organizations

Set Independent

Adjudication Policies and

Procedures

Organizations involved in adjudication are independent of each other and

report directly to the Secretary. Each is bound by the same laws and

regulations but issues independent policy and procedural guidance. The

Board, as established by law, is not a policy-making body. Yet Board

interpretations of legal and judicial requirements can have implications for

adjudication policies and procedures. For example, if those policies and

procedures are not consistent with the Board’s interpretations the number

of remanded decisions will rise. Also, hundreds of individuals within these

organizations interpret and apply laws, regulations, and guidance in

adjudicating claims. This legal and organizational structure makes

consistent interpretation of VA’s responsibilities essential to fair and

efficient adjudication but difficult to achieve.

GAO found evidence that VA organizations are not effectively identifying

and resolving intra-agency impediments to efficient claims processing.

GAO’s limited review identified several instances in which VBA policies and

practices were inconsistent with Board decisions. For instance, VBA

officials were unaware that Board officials interpret Court decisions to

require physicians to have the entire claim file so that an examination for

disability compensation can be a fully informed (thorough) one. VBA’s

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Executive Summary

guidance states that the file should only be provided in certain cases, such

as those remanded by the Board.

If VBA and VHA policies and practices are not consistent with Board

decisions, the likelihood that the Board will remand claims increases.

Furthermore, different interpretations have different implications for the

resources each organization needs to meet VA’s responsibilities. Both

Board and VBA officials expressed concern that they lacked the resources

to carry out responsibilities according to the Board’s current

interpretation of laws and Court decisions. But a clear understanding of

these responsibilities is needed for a meaningful analysis of the resources

needed.

During GAO’s review, VA took two steps that hold promise for improved

interaction among VA organizations. VBA recently completed a study,

assisted by Board staff, that identified a number of areas in which VARO

actions were not in accord with Board interpretations and recommended

that VBA, with Board assistance, develop guidance and training programs

to clarify requirements. Also, VBA, VHA, the Board, and VA’s Office of

General Counsel recently appointed representatives to a permanent

working group to address issues of adjudication timeliness and quality.

These efforts could help ensure that problems are identified and resolved;

however, in some cases resolution may need Department-level action.

Recommendation GAO recommends that the Secretary of Veterans Affairs designate an

official to direct efforts to identify and resolve intra-agency impediments

to efficient processing of veterans’ compensation and pension claims and

appeals. This should be an ongoing effort, but the initial focus should be a

joint effort by VBA, the Board, VHA, and if necessary the Office of General

Counsel to ensure that VBA and VHA policies and practices and Board

interpretations of VA’s responsibilities are consistent.

Agency Comments In a meeting on August 15, 1995, VA officials concurred with GAO’s

recommendation and said that the Deputy Secretary sees the identification

and resolution of impediments to efficient claims and appeals processing

as his responsibility. They said that actions to ensure identification and

resolution of problems have been suggested in many past studies and that

many of these ideas have been or will be implemented. Officials, however,

did not identify any specific planned actions.

Page 5 GAO/HEHS-95-190 VA Appeals Processing
Contents

Executive Summary 2

Chapter 1 

Introduction

8

Claims Adjudication Is Complex 8

Adjudication Problems a Continuing Concern 9

Objectives, Scope, and Methodology 10

Chapter 2 

Appeals Process Is

Increasingly Bogged

Down

13

Backlog and Processing Times Greatly Increased 13

Claims Adjudication Process Can Be Cumbersome 17

Officials Cite the Act and Court Decisions as Key Factors in

Increased Board Workload

20

Current Process May Contribute to Problems 23

Conclusion 24

Chapter 3 

Interaction Among VA

Organizations Needed

to Ensure Effective

Service to Veterans

26

VA Organizations Operate Independently 26

Recommendations for More Interaction Not Implemented, Other

Actions Taken

30

Organizations’ Interpretation of Some VA Responsibilities Are

Inconsistent

33

Concerns and Inconsistencies Are Resolved Slowly, If at All 38

Lack of Clearly Defined Requirements Hinders VA’s Ability to

Assess and Solve Appeals Processing Difficulties

39

Recent Actions Could Serve as Critical First Steps 41

Conclusions 44

Recommendation 45

Agency Comments 46

Appendixes Appendix I: Recommendations and Actions to Improve Staff

Performance and Process Efficiency

48

Appendix II: Major Contributors to This Report 53

Table Table 2.1: Major Reasons for Board Remands 22

Figures Figure 2.1: Backlog Increasing as Board Productivity Falls 14

Figure 2.2: Percent of Cases Remanded Rose Rapidly after 1990 16

Figure 2.3: The Claims Adjudication Process 19

Figure 2.4: Per-Case Cost of Board Decisions Rising Rapidly 21

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Contents

Figure 3.1: Relationships of Adjudication Organizations 27

Figure 3.2: The Framework of VA’s Benefit Claims Adjudication

Process

29

Abbreviations

VA Department of Veterans Affairs

VARO Veterans Benefits Administration regional offices

VBA Veterans Benefits Administration

VHA Veterans Health Administration

Page 7 GAO/HEHS-95-190 VA Appeals Processing
Chapter 1 

Introduction

In recent years the claims adjudication process within the Department of

Veterans Affairs (VA) has been the subject of much concern and attention,

both within VA and from others, including members of the Congress and

veterans service organizations. In May 1995, veterans were awaiting

decisions on over 450,000 compensation and pension claims and VA was

taking over 5 months on average to process original disability

compensation claims. Although these numbers represent some

improvement over the immediately preceding years, no such improvement

has been shown in appeals processing. At the end of 1994 over 47,000

appeals were before the Board of Veterans’ Appeals. On average, veterans1

could expect to wait almost 2-1/2 years from the date of their original

claim to receive a decision on these appeals. Many veterans will, therefore,

experience a significant delay in receiving benefits they are entitled to.

Over the last 5 years, numerous studies have made recommendations to

improve VA claims processing and many of these recommendations have

focused specifically on appeals processing. In response to these studies,

recent legislation, and other management initiatives, VA has implemented

many changes and plans more efforts to address problems at both its

regional offices (VARO) and the Board. In spite of these actions, however,

VA officials foresee continued problems with appeals processing.

Although the recommendations were wide-ranging, three areas were most

frequently targeted. Appendix I summarizes recommendations and VA

actions in two of these areas: (1) improving staff performance through

training, guidance, and standards and (2) increasing process efficiency

through actions such as automation, revised procedures, and increased

staffing. Recommendations and VA actions in the third area—ensuring that

VA organizations work together to identify and resolve problems—are the

focus of this report.

Claims Adjudication

Is Complex

The adjudication of VA disability compensation and pension claims,

including adjudication of appeals, is a fairly complicated process,

involving many organizations in VA and often a veterans service

organization representative as well as the veteran. The process is one that

seeks to ensure every opportunity for the veteran to substantiate the

claim.

1

In some cases veterans’ spouses and dependent children and parents are eligible for VA benefits. In

this report the definition of veteran includes these other types of VA program beneficiaries.

Page 8 GAO/HEHS-95-190 VA Appeals Processing
Chapter 1 

Introduction

One of the 58 VAROs2 in the Veterans Benefits Administration (VBA) first

makes a decision about a claim after obtaining all available pertinent

evidence, including oral evidence at a hearing if the veteran so requests.

An important part of the evidence is often a physical examination

conducted by physicians in the Veterans Health Administration (VHA),

which operates the many medical centers and other health facilities in VA.

If dissatisfied with the VARO’s decision, the veteran may file an appeal,

which is decided by the Board, an independent organization within VA. The

Board also may conduct a hearing if the veteran requests. The Board can

allow or deny benefits or remand (return) the claim to the VARO to develop

further evidence and reconsider the claim.

Before 1989, the Board’s decision on an appeal was final. In that year the

Court of Veterans Appeals, established by the Veterans’ Judicial Review

Act (P.L. 100-687, Nov. 18, 1988), began to hear cases. With the Court in

place, the Board is no longer the final step in the claims adjudication

process. Veterans who disagree with Board decisions may now appeal to

the Court. Additionally, under some limited circumstances, either veterans

or VA may appeal Court decisions to the Court of Appeals for the Federal

Circuit.

Veterans appeal relatively few VARO decisions. In 1994, veterans appealed

8 percent of compensation and pension cases decided by the VAROs.3

 Of the

cases appealed to the Board, about 17 percent are ultimately allowed by

the VARO or Board when they consider the appeal.

Adjudication

Problems a

Continuing Concern

VA officials have recognized the critical problems they face in appeals

processing and are making many changes in an effort to solve them (see

app. I). Such changes could improve claims adjudication quality and

timeliness; however, Board officials are skeptical about the extent to

which implemented and planned changes will reduce the appeals backlog

and processing time. In fact, the Chairman of the Board suggested that to

solve the problems either significant additional resources must be

committed or the process itself must be altered.

2

In 1988, responsibilities for adjudicating claims received at the Cheyenne, Wyoming, VARO were

transferred to the Denver VARO.

3

The number of cases appealed is less than the number of cases in which the veteran files a “notice of

disagreement” with VA. This notice is the first step in the appeals process. In some cases, after the

notice of disagreement, the VARO grants the benefits sought; veterans may also decide not to continue

with the appeal if the VARO again denies the benefits at this point. VBA does not maintain data on the

number of these cases for which benefits are granted.

Page 9 GAO/HEHS-95-190 VA Appeals Processing
Chapter 1 

Introduction

The Congress’ continued concern about VA’s ability to process claims led it

to create, in November 1994, the Veterans’ Claims Adjudication

Commission. The Commission, with representation from both inside and

outside VA, is charged with studying the entire adjudication process, from

the beginning through final appeal, and making recommendations for

improvements. The Commission is to submit its preliminary conclusions to

the Congress in November 1995 and its final report with recommendations

in May 1996.

Objectives, Scope,

and Methodology

Senator John D. Rockefeller IV, then Chairman, Senate Committee on

Veterans’ Affairs, and Senator Ben Nighthorse Campbell asked us to

review several aspects of the Board’s processing of appeals. During our

preliminary work we identified several recently completed reviews of VA’s

appeals process. We also determined that VA had made progress in

implementing two types of recommendations frequently cited in these

studies—those dealing with improving staff performance and with making

the process more efficient—but substantially less progress in a third area,

interaction among VA organizations responsible for appeals processing. In

subsequent discussions with the requesters’ staffs we agreed to focus our

review on (1) the current state of appeals processing, including trends in

timeliness and backlog, and (2) the extent to which VA has implemented

study recommendations, especially those designed to help VA

organizations work together to improve claims and appeals processing to

better serve the veteran.

Through discussions with Board officials and others, we identified seven

studies that included adjudication of veterans’ appeals. The studies were

completed between May 1990 and March 1995. The studies contained 89

recommendations. To better understand the intent of some

recommendations and obtain further insights of those who had

participated in the studies, in some cases, we also discussed the

recommendations with members of the study groups.

We reviewed the following seven studies that evaluated aspects of the

appeals process:

• 1990 GAO report, (Veterans’ Benefits: Improved Management Needed to

Reduce Waiting Time for Appeal Decisions (GAO/HRD-90-62, May 25,

1990) discussed the lack of timeliness in VA appeals processing.

• 1992 Task Force on the Impact of the Judicial Review Act of 1988

evaluated the effect of the Court on workload and timeliness.

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Chapter 1 

Introduction

• 1993 Blue Ribbon Panel on Claims Processing made recommendations to

shorten the time it takes to make disability decisions, including appeals.

• 1994 Analysis of Board of Veterans’ Appeals Remands (VBA’s study of

almost 700 remanded cases) sought to improve the timeliness of the

service VA provides to customers who appeal a decision.

• 1994 Board of Veterans’ Appeals Select Panel on Productivity

Improvement developed recommendations to reduce appeal processing

time.

• 1995 VA’s Compliance With the Court of Veterans Appeals (a committee

appointed by the Secretary of VA) investigated issues raised by the Court’s

Chief Judge.

• 1995 VA Inspector General Audit of Appeals Processing Impact on Claims

for Veterans’ Benefits reviewed the impact of appeals and the appeals

process.

We also included in our review actions taken beyond specific study

recommendations, including the Board’s plans for reorganization and

implementation of two key pieces of legislation that mandated or allowed

changes in claims processing: The Board of Veterans’ Appeals

Administrative Improvement Act of 1994 (P.L. 103-271, July 1, 1994) and

the Veterans’ Benefits Improvements Act of 1994 (P.L. 103-446, Nov. 2,

1994). Among other things, these laws allowed single-member Board

decisions4

 and required VAROs to place a priority on adjudicating appeals

remanded by the Board. To determine the status of the recommendations

and other actions, we interviewed officials of three VA organizations

directly involved in appeals processing—VBA, the Board, and the VA Office

of the General Counsel—in Washington, D.C. We also reviewed pertinent

documents and records obtained from these organizations, as well as

relevant VHA policies; VHA publishes the guidance used by its physicians in

performing disability determination examinations.

Additionally, to provide examples of the adjudication process and

problems identified in the studies, we reviewed a small sample (39) of

appeals that the Board remanded during the period January 27 to 31, 1995.

We selected the cases from the 290 that were remanded during this period.

Although the Board decides appeals about all aspects of veterans

programs, including, for example, health care, home loans, and education,

over 90 percent of appeals concern claims for disability compensation and

pension benefits originally decided by VAROs. Therefore, we focused on

4

Before enactment of this legislation, Board decisions were rendered by a panel of three Board

members.

Page 11 GAO/HEHS-95-190 VA Appeals Processing
Chapter 1 

Introduction

these types of appeals. The Board remands appeals to the agency of

original jurisdiction, which could be organizations within VA other than

VBA. However, because we focused on compensation and pension appeals,

we refer throughout this report to VBA, which is the agency of original

jurisdiction for these types of claims.

We did not assess either the efficiency of VA’s claims and appeals

adjudication operations or the impact that implementing the study

recommendations would have on operations. Also, we did not

independently verify, beyond reviewing VA central office documents, the

extent or manner in which recommendations have been implemented.

We did our work in accordance with generally accepted government

auditing standards from December 1994 through July 1995.

Page 12 GAO/HEHS-95-190 VA Appeals Processing
Chapter 2 

Appeals Process Is Increasingly Bogged

Down

Veterans are waiting increasingly longer times for their appeals to be

decided. Both the number of appeals waiting to be processed and appeal

processing times have grown substantially in recent years. Similarly, the

percentage of cases remanded to VAROs for additional action has increased.

The Board attributes much of this increase to additional responsibilities

placed on VA and the Board in particular by the act and Court rulings.5

These responsibilities are seen as especially difficult to integrate into an

already complicated and lengthy process.

Backlog and

Processing Times

Greatly Increased

The backlog of cases awaiting Board action has been increasing since at

least 1985. However, as shown in figure 2.1, this increase began to

skyrocket after 1991. Overall, the backlog increased by almost 175 percent,

from about 17,000 in 1991 to over 47,000 in 1994. In large part this increase

is due to the decrease in the Board’s productivity—the number of

decisions rendered annually. This decrease began about the time the Court

began remanding cases to the Board for lack of completeness. Although

the number of appeals received by the Board annually has decreased

slightly in recent years, the backlog has grown substantially as the number

of decisions the Board rendered decreased. The number of decisions

dropped from about 45,000 in 1991 to about 22,000 in 1994. Given that the

number of decisions rendered annually is significantly lower than the

number of appeals being filed (about 35,500 in 1994), the backlog can be

expected to continue to increase.

5

For example, as discussed later in this chapter, in response to Court decisions VA has had to

substantially increase the level of detail included in its decisions and the amount of assistance it

provides to veterans in filing claims.

Page 13 GAO/HEHS-95-190 VA Appeals Processing
Chapter 2 

Appeals Process Is Increasingly Bogged

Down

Figure 2.1: Backlog Increasing as

Board Productivity Falls

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994

Fiscal Year

Appeals Received

Decisions Rendered

Backlog

0

3200

6400

9600

12800

16000

19200

22400

25600

28800

32000

35200

38400

41600

44800

48000

Impact of


court decisions


begins

Appeals processing time is also on an upward course. On average, appeals

decided in 1990 that were not remanded took about 16 months from the

time the veteran notified the VARO that he or she disagreed with the VARO’s

decision until the Board made its decision. In 1994, an appeal took over 24

months to process, a 50-percent increase in 4 years. During a large part of

that time the appeal is “in queue” at the Board, awaiting its turn. The

portion of time the appeal was before the Board—after the VARO had

reconsidered the appeal based on the veteran’s notice of disagreement and

certified the appeal to the Board—increased 100 percent, from 6 months in

1990 to 12 months in 1994. Board officials acknowledged that as the

backlog increases the processing time will also rise. Unlike VBA, the Board

has not established claims processing timeliness goals. VBA has established

Page 14 GAO/HEHS-95-190 VA Appeals Processing
Chapter 2 

Appeals Process Is Increasingly Bogged

Down

goals for some types of claims. For example, its goal for original

compensation claims is 106 days. However, the Board has not established

any similar types of goals.

Another measure of this increase is the Board’s response time, defined as

the number of days it will take the Board to render decisions on all

pending appeals. The Board’s response time rose from 240 days in 1992 to

781 days in 1994; as of July 1995, the response time for fiscal year 1995 was

estimated at 694 days.

These statistics are even more alarming because about one-half the

Board’s decisions are not final. Increasingly, the Board is remanding cases

to the VAROs for additional development and reconsideration. The

percentage of cases remanded has increased substantially. Before 1991,

about 20 percent of cases were remanded annually. This percentage began

rising in 1991 to its current rate of about 50 percent. The number of

remands peaked at about 17,000 in 1992; there were about 11,000 remands

in 1994. (See fig. 2.2.) Additionally, in 1994, over 34 percent of appeals

being remanded to the VAROs had already been remanded one or more

times.

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Appeals Process Is Increasingly Bogged

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Figure 2.2: Percent of Cases

Remanded Rose Rapidly After 1990 Number of decisions

0

3500

7000

10500

14000

17500

21000

24500

28000

31500

35000

38500

42000

45500

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994

Fiscal Year

Remands

Nonremand Decisions

Total Number of Decisions

Remands can add substantially to Board workload. Board data show that

about 75 percent of the cases remanded to a VARO are again denied and

returned to the Board. Thus, about 8,000 of the 11,000 claims remanded by

the Board in 1994 can be expected to be returned; this is about 20 percent

of the 35,500 appeals the Board received in 1994. Furthermore, average

processing time is higher for remanded cases and also has been rising. In

1990, the Board averaged just over 17 months to process a remanded

appeal, but by 1994 the time had increased by over 60 percent to almost 28

months.

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Appeals Process Is Increasingly Bogged

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Claims Adjudication

Process Can Be

Cumbersome

The claims adjudication process in VA has evolved over many years and

seeks to provide the veteran every opportunity to prove his or her claim

and to obtain benefits. The basic process, which starts with filing a claim

with a VARO, allows each claim up to five considerations, as follows:

• VARO staff decide whether to grant the benefits after obtaining and

considering all relevant information, such as military service and medical

records, and in most cases a physical examination by a VHA physician.

• If the veteran notifies the VARO that he or she disagrees with the decision,

the VARO will reconsider the case and if it does not grant the requested

benefits it will issue a statement of the case summarizing the reasons.

• If the veteran still disagrees, he or she can file an appeal. The VARO will

again reconsider the case and if all claimed benefits still are not granted it

will send the appeal to the Board. However, any amount granted by the

VARO is received by the veteran while the amount under appeal is being

decided by the Board.

• The Board makes its decision.6

• If benefits are still denied, the veteran can take his or her claim to the

Court.7

But this process can become increasingly complex. At any time before a

claim is appealed to the Court, the veteran can ask and will be given an

opportunity for a hearing. If the hearing is before a VARO hearing officer,

the hearing officer may also consider the claim and grant benefits if

evidence in the hearing warrants. If the claim has already been appealed, a

Board member would conduct the hearing and consider the evidence

presented in arriving at a Board decision.8

 Much of this process, such as

when veterans may receive hearings and from whom, is set forth in

legislation and regulations.

The veteran may also introduce new evidence during the process,

requiring VA to then obtain that evidence and decide if it is relevant and, if

so, consider it in the decision. Under VA regulations, unless the veteran

shows good cause, all new evidence must be submitted within 90 days

6

Under some circumstances the Board may reconsider its decision, for example, if the veteran requests

reconsideration alleging that the Board made an obvious error of fact or law. Board data show that

between January and June of 1995 the Board reconsidered about 100 decisions.

7

Another consideration is possible; veterans may appeal some decisions of the Court to the Court of

Appeals for the Federal Circuit. However, the circumstances allowing such appeals are narrow.

8

In 1994, over 25,000 hearings were held by VARO hearing officers. An additional 2,700 hearings were

held by Board members. The Board conducted about 4,700 hearings in 1993, but significantly reduced

the number of hearings held in 1994 because of the backlog. The Board resumed a normal hearing

schedule in July 1995.

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Appeals Process Is Increasingly Bogged

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after the VARO notifies the veteran that his or her appeal has been

forwarded to the Board. The Board is usually liberal in its interpretation of

good cause, according to a Board official; thus, veterans frequently submit

new evidence after the 90-day period.

Also, the veteran may claim a new or increased disability after the appeal

is in process, in which case, unless the veteran waives his or her right for

reconsideration, the VARO must complete any required additional

development, often including a new physical examination, and then

reconsider the claim. Again, the veteran’s right to revise a claim during the

adjudication process is set forth in legislation, regulations, and Court

decisions.

Figure 2.3 illustrates this process. If the Board remands the claim to the

VARO, much of the process may be repeated, since the remand usually will

require additional development and reconsideration.

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Appeals Process Is Increasingly Bogged

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Figure 2.3: The Claims Adjudication Process

A

A

A

A

A

A

N

N

N

N

N

N

Y

Y

Y

Y

Y

Y

Remand

Remand

Veteran Applies for

Benefits at VARO

VARO Obtains

Additional

Infomation for Claim

Board Remands

Claim to

VARO

Board

Reconsiders

Appeala

VARO Collects

Additional

Information

for Claim

VARO Sends

Claim

Back to Board

VARO Grants

Benefits?

VARO Collects

Additional

Information

for Claim

VARO Certifies

Veteran's Claim

to the Board

Veteran Appeals to

Board of Appeals

Through VARO

Indicates that at these points a veteran may submit new

evidence or claim a new disorder, which sends case back to

VARO, or veteran may request a VARO or Board hearing.

Veteran Appeals

to

VARO

VARO grants

benefits?

VARO grants

benefits?

VARO Grants

Benefits?

Board Grants

Benefits?

Board Grants

Benefits?

A

A

N

N

Y

Y Remand

Veteran Appeals

to Court

of Appealsb

Veteran

Gets

Benefitsc

Veteran

Does Not

Get Benefitsc

Court Remands

Claim to

Board

Board Carries

Out

Remand Order

Board Grants

Benefits?

Court grants

benefits?

Page 19 GAO/HEHS-95-190 VA Appeals Processing
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aReconsideration is not necessary before the Court reviews a veteran’s claim.

bA new appeal is not needed if the claim has already been reviewed by the Court.

cIn some cases the veteran or VA may appeal to the Court of Appeals for the Federal Circuit.

Additionally, even if the veteran has received a final decision on a claim he

or she may seek to reopen the claim with the submission of new and

material evidence. This is considered a new claim in VA’s processing

system. Board officials pointed out that even if the evidence is not new

and material a decision by both VBA and, if the decision is appealed, by the

Board is required to adjudicate the claim.

Officials Cite the Act

and Court Decisions

as Key Factors in

Increased Board

Workload

VA officials stated that increased responsibilities imposed on VA by the 1988

act and Court decisions have contributed directly to the substantial

increase in claims and appeals processing times as well as to the increased

number of remanded decisions. Board officials stated that the impact of

the act and the Court began to be felt in 1991, after the Court began issuing

decisions in 1990.

Officials cited increased responsibilities in two areas as having the

greatest impact: the need to fully explain the reasons and bases for

decisions and VA’s duty to assist the veteran in filing a claim.9

 Board

officials point to the expanded requirements to explain the reasons and

bases for their decisions as one of the key reasons for the 50-percent

reduction in Board productivity. They noted, for example, that these

requirements, such as specifically discussing the merit and weight given to

each item of evidence, have substantially increased the complexity of each

decision in terms of both its length and the time it takes to prepare it. The

decrease in the Board’s productivity is also reflected in a substantial

growth in the per-case costs that the Board incurs to process appeals. As

figure 2.4 shows, the Board’s per-case cost was relatively stable until 1991,

when it began to increase rapidly. The costs grew from about $400 in 1990

to $1,250 in 1994.

9

The Chairman cited additional factors related to the act and Court decisions that have negatively

affected timeliness, such as (1) the need to obtain outside medical opinions and do more medical

research as a result of decisions limiting the Board’s long-standing practice of using Board physicians’

medical opinions; (2) an increase in the number of Board hearings—many outside of Washington, D.C.,

to which Board members must travel—as a result of provisions in the act giving veterans the statutory

right to such hearings; and (3) new responsibilities to review attorney fee arrangements, again

established by the act.

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Figure 2.4: Per-Case Cost of Board

Decisions Rising Rapidly (Fiscal Years

1985-94)

Cost (Dollars)

350

425

500

575

650

725

800

875

950

1025

1100

1175

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994

Fiscal Year

The increased duty-to-assist requirements fall heaviest on the VAROs, which

have primary responsibility for developing claims. However, given that the

failure to comply with some aspect of duty to assist is a reason for the

majority of remanded cases, the Board, too, feels the impact. Data from

the February 1994 VBA remand study show that 60 percent of the remands

involved the need to accomplish additional case development; that is, in

the Board’s view, VAROs had failed to satisfy their duty-to-assist

responsibilities by not making sufficient effort to obtain some type of

evidence in support of appellants’ claims. Board data also point to the

substantial impact of the duty-to-assist requirement. The data show that

claims are remanded, on average, for 2.6 reasons. The Board categorizes

these data into 20 reasons; only 4 are cited in over 20 percent of the cases

and 3 of those directly relate to duty-to-assist requirements.

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Table 2.1: Major Reasons for Board

Remands Reasons for remand Percent

Duty-to-assist requirement

Medical exam 70

Evidentiary development - VA records 45

Evidentiary development - private medical records 45

Due process development

Additional issues for consideration by the agency of original jurisdiction 20

Source: Board data from April 1, 1994, to March 31, 1995.

Officials also noted that both the act and Court decisions have placed

greater emphasis on procedural requirements, resulting in remands for

failure to follow technical procedures. The following case serves as an

example. A veteran’s ex-wife was appealing a VARO decision not to

apportion part of the veteran’s pension for the period of time they were

separated before their divorce. The VARO denied the ex-wife’s claim

because the veteran had provided financial support during that time and

apportioning his benefits would have caused an undue financial hardship.

The Board remanded the appeal, directing the VARO to comply with

contested claim procedures by notifying the veteran of the appeal. Yet the

claim file indicates that the veteran was aware of the appeal, because his

representative provided evidence to the Board at an informal hearing on

the appeal.

Board and VBA officials agree that in many of these cases the likelihood of

a change in the decision—that is, in the veteran being granted benefits—is

virtually nonexistent. In the past, officials said, the Board often would not

have remanded such cases because the final result would have been the

same. Now, with the possibility of judicial review before them, the Board

does remand the case to ensure all necessary procedures are followed.

Finally, both Board and VBA officials said that cases often are remanded so

that the VARO can apply a new rule—that is, a rule articulated by the Court

after the VARO makes its decision but before the Board closes the case.

Court decisions must be applied to all pending cases. Thus, even if the

VARO applied the law appropriately at the time that its decision was made,

if an applicable Court decision is issued before the Board makes a final

decision, the Board will remand the case to the VARO to apply the newly

stated requirements. For example, in one case a VARO denied death

compensation to a veteran’s wife based on VA regulations that were in

effect at the time. While the case was pending before the Board, the Court

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held that a portion of the regulation used in deciding the case was invalid.

Therefore, the Board remanded the case. Data available from the Board

indicate, however, that this is a relatively infrequent occurrence. No more

than 6 percent of the cases remanded were because of laws, regulations,

or Court decisions that became effective after the VARO’s decision.

Current Process May

Contribute to

Problems

Some officials we spoke to see the process itself as part of the problem,

and the studies we reviewed made several recommendations to change

various aspects of the process.10 Legislative or regulatory changes are

needed before these recommendations can be implemented, however, and

in some cases concerns have been raised about the possible negative

impact on veterans seeking benefits.

One recommendation limits the time in which the veteran may introduce

new issues to the appeal. The Inspector General found that allowing

veterans to introduce new evidence and issues at virtually any time in the

appeals process caused significant delays in many cases. In March 1995 he

recommended that veterans not be allowed to add new issues or evidence

once the VARO certified the appeal to the Board; a new appeal would have

to be filed on new issues. A recent VBA study of a small sample of appeals

seems to support the potential benefit of this recommendation. The study

found that in all cases the hearing officer’s decision was correct (over

one-half the cases had a VARO hearing); only after the hearing and after new

evidence and issues had been included were problems found. VBA is

currently considering how to implement the Inspector General’s

recommendation, including deciding if a legislative change is necessary.

Another recommendation seeks to change the process in another way. The

Board’s Select Panel on Productivity Improvement called for the Board to

obtain the evidence needed to decide appeals. Thus if additional

information were needed, the Board would obtain it directly from the

source rather than remanding the claim back to the VARO to get it. This

recommendation is intended to reduce the time spent preparing cases by

eliminating the need for formal statements between the Board and VAROs

about additional required evidence. In addition, the chairman of the panel

10As part of our study of VBA’s systems modernization we also have expressed concerns that VBA has

not adequately assessed its business processes to identify ways the adjudication process itself could

be improved. We are currently working, with VBA’s support, to conduct a business process analysis of

claims (not appeals) adjudication, with an aim to identifying alternative processing approaches. For

further information see: Veterans’ Benefits: Acquisition of Information Resources for Modernization Is

Premature (GAO/IMTEC-93-6, Nov. 4, 1992); Veterans’ Benefits: Redirected Modernization Shows

Promise (GAO/AIMD-94-26, Dec. 9, 1993); and Veterans’ Benefits Modernization: Further Service

Improvement Depends on Coordinated Approach (GAO/T-AIMD/HEHS-95-184, June 22, 1995).

Page 23 GAO/HEHS-95-190 VA Appeals Processing
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noted that the suggested change would use Board members and staff

attorneys to prepare decisions, rather than VARO staff who are not

attorneys, and thus better ensure that the decisions meet the Court’s

requirements. VA is drafting revised regulations to enable it to test this

approach.

Another recommendation by both the Select Panel and VA’s Inspector

General is to allow VARO hearing officers to conduct hearings for the

Board. The studies point to several positive benefits of this change,

including a reduction of travel costs for Board members and the

opportunity for more cases to be resolved in VAROs. A legislative change is

needed to implement this recommendation.

The Inspector General also recommended eliminating the requirement for

statements of the case for disability claims. Currently, VAROs must prepare

a statement of the case for each claimant who initiates an appeal. The

purpose of this statement is to aid the claimant by describing the issues on

appeal and summarizing the evidence of record, applicable laws and

regulations, and reasons for the decision. The report suggested that VA’s

responsibility to provide the claimant with the legal citations on which the

decision is based could be met by including those citations in the rating

decision rather than in the statement of the case as is currently done.

Again, a legislative change is needed before VA can implement this

recommendation.

Concerns have been raised about some of these recommendations, most

frequently focused on the potential negative effect on those seeking

benefits. Both veterans service organizations and VA’s Inspector General

disagree with the recommendation to have the Board obtain information

directly, concerned that already overburdened Board staff would get

further behind. While this concern might be overcome by adding staff to

the Board, perhaps from VAROs, some veterans service organizations were

also concerned that this recommendation would eliminate one step in the

process that could allow cases to be granted by VAROs. Likewise, the

Disabled American Veterans representative on the Select Panel disagreed

with the recommendation concerning hearing officers, stating that it

would prevent the appellant from having the hearing before the person

who would decide the case.

Conclusion The appeals process is very cumbersome and additional efforts to identify

ways to streamline it are warranted. The studies of the appeals process

Page 24 GAO/HEHS-95-190 VA Appeals Processing
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included in our scope did not fully review the process itself, much of

which is legally mandated. In addition, some of the process changes

recommended in recent studies may be seen by many as reducing

veterans’ rights. Decisionmakers will have to weigh the benefits of

providing individual veterans with unlimited access to the system against

the impact that access has on the system as a whole and all veterans

seeking benefits from VA.

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Veterans

Since 1990, at least four studies have made recommendations aimed at

ensuring that VA organizations work together to improve claims and

appeals processing to better serve veterans and their families. VA officials

point to a number of formal and informal meetings and working groups

that they believe meet the intention of the studies’ recommendations.

However, we found evidence that existing mechanisms do not always

identify or are slow to resolve important problems in

adjudication—problems that require input from several organizations to

attain resolution. Our work, for example, identified several areas in which

different organizations either interpreted or applied laws and regulations

differently. These types of differences not only contribute to inefficient

adjudication, but also inhibit VA’s ability to clearly define its

responsibilities and the resources necessary to carry them out. Lack of

agencywide consensus about its responsibilities, in turn, inhibits VA’s

ability to identify meaningful solutions to the current claims and appeals

processing difficulties. Meanwhile, veterans wait longer and longer for

decisions on their claims.

VA Organizations

Operate

Independently

The Board, VBA, and VHA are independent of each other and report directly

to the Secretary. All are bound by the same laws and regulations, but they

also issue independent policy and procedural guidance. Guidance issued

by one does not apply to the others. Although VHA and VBA provide

guidance for claims adjudication by the 58 VAROs through VBA’s claims

processing manual and VHA’s physicians’ guide for conducting

examinations, the Board is not involved in developing or reviewing that

guidance. VA’s Office of General Counsel, which also reports directly to the

Secretary, may issue precedent opinions that also are binding on all VA

organizations, including the Board. (See fig. 3.1.)

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Figure 3.1: Relationships of

Adjudication Organizations Secretary

of

VA

General

Counsel

VBA

Interprets Laws and

Rulings

About 60 Board

Members

Issues Precedent

Opinions

Interprets Laws and

Rulings

Issues Guidance

Assists Veterans

Sends Guidance to

58 VAROs

Interpret Guidance

About 800 Rating

Specialists

Provides Examinations

Provides Guidance

About 300 Medical Facilities

Board VHA

There is no one place where the Board’s interpretation of laws,

regulations, and Court decisions is set forth and available for other VA

organizations to use in establishing policies and procedures.11 The Board’s

role is to render decisions about the legal adequacy of VA’s implementation

of laws and regulations, including Court decisions, in specific cases. Its

legal authority does not include setting policy or issuing rules for VA claims

adjudication. As legally constituted, each of the Board’s approximately 60

members is responsible for drawing individual conclusions from Court

decisions and laws. To state specific interpretations about adjudication

requirements to which all Board members are bound would, according to

Board officials, be beyond the Board’s authority.

Yet individual Board remand decisions—which set requirements for VBA

and VHA actions in specific cases—can have broader implications for VBA

and VHA practices in many areas of claims adjudication. A 1991 memo from

the Board Chairman to Board members recognizes this reality. In it he

11Board officials pointed out, however, that Board decisions are available on CD-ROM and this

database could be used to analyze Board findings and identify trends in interpretations.

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identified several areas in which VARO adjudication procedures were

inconsistent with instructions given to VAROs in remand decisions. The

Chairman indicated that Board members needed to fully explain the

reasons for actions required in remands so that VARO staff themselves

could apply such reasoning to similar cases. For example, the Chairman

noted that

“Articulating the reasons(s) for providing the claims folder to the [physician conducting the

disability examination] will better enable the [VARO] to discern the situations in which it is

necessary to do so in other cases, thereby eliminating the necessity for remand for

reexamination when the claims folder had not been available to the [physician].”

VA headquarters does not have a central point that reviews Board remands

or reversals on an ongoing basis that could identify trends in Board

interpretations of Court decisions that signal the need for changes or

clarification in adjudication policies and procedures. Soon after a Court

decision affecting how VAROs adjudicate claims is issued, a teleconference

is held with staff from each VARO and representatives of VBA, General

Counsel, and the Board. Additionally, VBA, in consultation with General

Counsel staff, puts out written guidance shortly after such Court decisions.

This written guidance has limitations, however. First, the Board does not

participate in developing it. Additionally, the full impact of Court decisions

may not be immediately clear so that this written guidance may not

capture all needed changes. Board interpretations of Court decisions can

evolve over time as individual Board decisions more fully or clearly

articulate the principles included in specific Court decisions. Currently,

these Board decisions are sent directly to the VARO responsible for the

initial decision. Under current procedures, therefore, staff in each of the

58 VAROs independently implement Board decisions. One of the

conclusions of the recent report from the Secretary’s Court of Veterans

Appeals Fact-Finding Committee—that VARO staff do not understand the

underlying legal principles of Court decisions and, therefore, cannot apply

them in “similar” cases—suggests the current approach has not been

effective.

Figure 3.2 depicts the complex framework of the adjudication process.

Many different organizations or agencies are involved, including 58 VAROs

and nearly 60 individual Board members, and they have requirements or

guidance placed on them from many different sources.

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Figure 3.2: The Framework of VA’s Benefit Claims Adjudication Process

Veteran's

Claim

Remanded

Claim

Granted

Claim

VBA/VAROs

Federal

Regulations

Public

Laws

Board

Decisions

VBA

Procedure

Manual General

Counsel

Opinions VHA

Physicians'

Guide

Court

Decisions

Board of

Veterans’

Appeals

Court of

Veterans

Appeals Court of

Appeals for the

Federal Circuit

VHA/

Medical

Facilities

VA Claims

Adjudication

Process

Denied

Claim

Sources of

Requirements Orgnaizations

Inputs

Outcomes

Withdrawn

Claim

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Recommendations for

More Interaction Not

Implemented, Other

Actions Taken

Four of the studies that we reviewed raised issues that related to the need

for organizations within VA to work together to improve claims and

appeals processing. VA does have a variety of communication mechanisms

and is cognizant of the importance of having all the organizations working

together to support the veteran. However, VA has not implemented specific

recommendations aimed at improved interaction, believing that existing

mechanisms fulfill the intent of those recommendations.

Studies Recommend

Formal and Ongoing

Interaction Among VA

Organizations

As early as 1990, we identified and reported unresolved problems in

appeals processing that involved more than one VA organization. We

recommended that a focal point be established to lead efforts to resolve

problems and obtain cooperation among the VA organizations involved in

the appeals process. In 1992, VA’s Task Force on the Impact of Judicial

Review recommended that representatives from organizations in VA work

together in a small group to develop strategic, coordinated initiatives

responding to judicial review. This type of concern was echoed more

recently by both the May 1994 VBA Analysis of Board of Veterans’ Appeals

Remands and the June 1994 Board of Veterans’ Appeals Select Panel on

Productivity Improvement. The VBA analysis recommended that an active

working group be established with representatives from the Board, VBA,

and where appropriate VHA to address problem areas so that VA as a whole

could provide better service to the veteran. Likewise, the Select Panel

recommended that a steering group composed of VBA, VHA, the Board, and

veterans service organizations meet at least quarterly to recommend

changes concerning the quality and timeliness of claims processing.

Some officials we spoke to also suggested that the organizations may have

difficulty working together to resolve issues, especially those that directly

affect individual organization resources. Some suggested that a broader

organizational restructuring may be needed. For example, staff familiar

with VBA and Board activities suggested that working groups comprised of

representatives of equal status—that is, without designating someone to

be in charge—are ineffective. Likewise, the chairman of the Select Panel

on Board Productivity noted that someone above each of the organizations

needed to be involved to ensure resolution of problems.

Others familiar with the system also suggested a variety of changes. The

Chief Judge of the Court, expressing dissatisfaction with VARO

implementation of Court decisions, suggested that VAROs should be placed

directly within the chain of authority of the Court. Likewise, an official in

VA’s General Counsel suggested that Board members be stationed in the

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VAROs, improving communication and reducing processing time. Similarly,

the chairman of the Select Panel on Board Productivity suggested that the

introduction of the Court created an entirely new set of circumstances and

that the Board’s role may need to be fundamentally changed. He pointed

out, for example, that as the process is currently structured, the Board and

VBA hand appeals back and forth to each other and neither organization is

held accountable for the total action. The Chairman of the Board has also

noted that since the Court became operational the Board’s role is a

hybrid—on the one hand judging VARO decisions and on the other making

its own decisions about appealed cases. While not suggesting a specific

resolution of the issue, he has suggested that it may be necessary to

redefine the Board’s role.

VA Officials Point to

Extensive Communication

Among Organizations

Officials pointed to a variety of formal and informal communications

involving organization officials and staff. Most involve at least VBA and the

Board and concern claims adjudication.

In general, VA officials noted that representatives of the VA organizations

meet frequently as the need arises. They also pointed out that many of the

authors of the studies we reviewed were representatives from several key

VA organizations, thereby assuring that they worked together to identify

problems and solutions.

More specifically, in the fall of 1994, the Deputy Secretary of VA started

holding monthly meetings with the Chairman of the Board and the Under

Secretary for Benefits to discuss claims processing issues. The Chairman

of the Board also noted that he meets with VA’s General Counsel and the

Under Secretary for Benefits as needed to iron out any problems that

come up. Although VA never established a focal point as we recommended,

the Chairman said that the meetings between key officials, in essence,

ensure a focal point for agency actions in appeals processing. He could not

identify specific policy or procedural changes resulting from these

meetings, explaining that the meetings would be only a part of the process

for developing such changes.

VA officials told us that the ongoing, formal strategic planning

process—preparing a written strategic plan—does not include a focus on

responding to requirements of judicial review. They said that this

recommendation, which was made in September 1992, was not considered

pertinent when the new administration took over in January 1994 with

new strategic planning priorities. However, the Chairman again pointed to

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the meetings of key organization officials as, in essence, constituting a

strategic planning forum. The Chairman suggested that under earlier

administrations the key VA organizations were, perhaps, less willing to

work together, but that the current Secretary has put a priority on VA

organizations working together to serve the veteran. He also said that

actions such as those taken as part of the budget process and in response

to the Select Panel recommendations demonstrate that VA is, in fact,

addressing issues resulting from judicial review.

Likewise, the working groups recommended by the VBA Remand Analysis

and the Select Panel were not established, even though officials in both

VBA and the Board had agreed to do so. VA officials reiterated that many

meetings already occur between representatives of the organizations.

Officials cited triad meetings—monthly meetings of staff from the Board,

VBA, and General Counsel—as especially significant. Officials said that

these meetings are intended to resolve intra-agency issues. Staff members

who attend these meetings told us that the primary focus of the meetings

is on individual cases, for example, agreeing on a Department position on

a claim appealed to the Court, rather than on more general procedural or

policy issues. VA officials pointed out, however, that the need for policy or

procedural changes can be identified from discussions of individual cases

and provided an example of a procedure that was worked out between the

Board and VBA at those meetings. (It dealt with whether the Board or VBA

would notify the claimant about a particular type of Board decision.)

VA officials also said that they were reluctant to establish working groups

such as that recommended in the Select Panel report to identify problems

because doing so would duplicate the efforts of the Veterans Claims

Adjudication Commission. The Commission is charged with making

recommendations to improve VA’s claims adjudication process.

Commission officials told us that they were sympathetic with VA’s

reluctance to devote resources to yet another study of the claims

processing issue or to develop solutions now that might be overcome by

recommendations of the Commission. However, they were uncertain

about the extent to which their study and recommendations would include

the overall organizational structure or interaction among the various VA

organizations responsible for claims adjudication. They also said that it

may be inappropriate for VA to postpone actions to identify and resolve

ongoing problems pending the Commission’s report.12

12These officials also said that it was highly unlikely that their study or recommendations would

resolve questions of differences of interpretations of VA’s responsibilities, such as those discussed in

the following sections.

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Organizations’

Interpretation of

Some VA

Responsibilities Are

Inconsistent

A key area requiring cooperation and communication among VA

organizations is ensuring consistent interpretation and application of legal

requirements within VA. Doing so is critical to fair and efficient claims

adjudication. Yet despite the extent of ongoing discussions, we found

evidence that organizations continue to interpret some requirements

differently. For example, we found differences in interpretations in several

aspects of VA’s duty to assist veterans in filing claims. Two major areas of

concern relative to VA’s duty to assist are the sufficiency of documentation

and adequacy of medical examinations required to support a veteran’s

claim.

Officials Have Different

Views About Requirements

for Documentation

VBA officials have indicated concerns about the Board’s interpretation of

VA’s responsibility to assist veterans in developing their claims as stated in

some cases remanded to VAROs. In discussions with us, for example, they

questioned Board directions to (1) try repeatedly to obtain information

from sources such as the Social Security Administration and the military

services, (2) solicit from the veteran information about all records that

might possibly exist rather than relying on the veteran to identify pertinent

information and records, and (3) obtain records that officials know will

not support the veteran’s claim.

Case Study Example One case we discussed with VBA and Board officials demonstrates some of

the concerns that VBA raised.

The veteran maintained he was struck in the back by shrapnel during an

explosion on a ship in November 1944 or February 1945. He said that he

sought treatment in sick bay and has suffered from back problems since

his discharge. The veteran filed for disability in 1946, but was denied

service connection because the condition was not shown during service.

The decision was not appealed and became final.

In October 1991 (45 years after the initial claim was denied) the veteran

filed to reopen his claim. He requested a VA examination but did not

submit additional evidence. The claim was denied in November 1991.

The veteran appealed in July 1992, at which time he submitted new

evidence, including service personnel records that indicated that he had a

scar on his back before entrance into the service.

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At a Board hearing in December 1992, the veteran submitted additional

evidence, including a statement from a service friend and evidence of

other care received from private medical providers. The friend said that he

remembered hearing that the veteran was hit with shrapnel during an

explosion.

The Board remanded the case to the VARO in January 1995. The following

summarizes the actions required by the Board in this remanded case and

comments by VBA and Board officials. Those comments highlight some of

the potential areas of disagreement.

Board Remand

Action 1

The VARO should request from the veteran as much detail as possible about

the explosion and injury, such as dates, times, units, and the names of

others involved. The VARO should prepare a summary of the veteran’s

account and send it to the service department or the official depository of

U.S. Navy records. The VARO should request a search to ascertain whether

there is evidence to corroborate the explosion and location of the veteran

at the time of the explosion.

Officials’ Comments VBA officials said that they normally would not request this detail from the

veteran. If the veteran volunteered the information, they would record it

and verify it, if possible.

Board officials said that although the records requested do not specifically

support the claim, they could help support the veteran’s general

credibility.

Board Remand

Action 2

The VARO should make additional attempts to obtain copies of Daily Sick

Reports or any other document from the veteran’s service unit for the

dates of treatment he reports.

Officials’ Comments VBA officials said they would not normally obtain these records; Daily Sick

Reports only show that the service member reported to sick bay, but do

not give details about the case.

Again Board officials said the information would help establish the

veteran’s credibility.

Board Remand

Action 3

The VARO should request from the veteran the names and addresses of all

health care providers who have treated him for a back disorder since his

discharge. After securing the necessary releases, the VARO should obtain

copies of all treatment reports and hospital treatment folders not already

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on file. If any records identified by the veteran are not available, that fact

and the reason(s) should be annotated in the claims folder.

Officials’ Comments VBA officials said that they would not seek this information and normally

would not obtain these records. They believe that the issue is

service-connection, not whether the veteran currently has a disability.

Board officials noted that under Court decisions, VA has a duty to assist the

veteran in developing the facts pertinent to a well-grounded claim,

including all medical evidence, even where the additional evidence

submitted is inadequate to reopen the claim.

Board Remand

Action 4

After actions 1 through 3 have been completed, the veteran should receive

a VA examination to determine whether he has residuals of a shell

fragment wound to the back. A copy of this remand and the claim folder

must be made available to and reviewed by the examiner before the

examination. The examiner should render an opinion as to the probability

that any current back disorder is the result of a shrapnel wound to the

veteran’s back during service. The examiner should provide complete

rationale for all opinions and conclusions reached.

Officials’ Comments VBA officials said they do not believe a new exam is pertinent to the issue

and if ordering an exam they would not normally provide the claim file or

seek the medical opinion specified by the Board.

Board officials said that the veteran requested a VA exam and VA’s duty to

assist includes the duty to conduct a thorough and contemporaneous

exam. They also said that because the Court has ruled that the Board must

have independent medical opinions, they need the VHA physician to state

an opinion about the relationship of any current disability to the alleged

service incident. Also, a thorough exam, as defined by the Court, includes

the review of the entire file by the physician.

Board Remand

Action 5

The VARO should formally adjudicate whether new and material evidence

has been submitted to support reopening the claim.

Officials’ Comments Both VBA and Board officials agreed that before the 1988 act and several

Court decisions, the Board would not have remanded this case. The Board

would have determined if the evidence was new and material and if not

would have upheld the region, even though the VARO may have neglected to

articulate its decision as to whether the evidence was new and material.

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VBA officials said that the type of development required by the Board in

this and other similar remand decisions is, in many cases, either futile

(since the requested records will not be found) or is not pertinent to the

specific issue at hand. Board officials agreed and also said that even when

the additional requested evidence is obtained, the benefits are often not

granted. However, they stated that the additional development is needed

to meet the act’s requirements for duty to assist as interpreted by the

Court. They stated that VA cannot tell before reviewing the documents if

the benefits would be granted and, further, that Court decisions do not

limit VA’s responsibility for development (part of VA’s duty to assist) to

cases where the benefits might be granted. They said that they could not

tell which cases might be appealed to the Court and, therefore, they

believed VA must Court “proof” all decisions. Thus this level of

development is needed to ensure that the Court will not remand a decision

to the Board.

In a meeting with both VBA and Board officials, VBA officials stated that

they did not know of any general disagreements they had with the Board’s

interpretations but that they did disagree in individual cases such as that

cited above. However, they also told us in a separate meeting that although

this case is somewhat atypical in terms of the number of actions required,

it is typical of the types of actions seen in many of the remand decisions.

They said that they would not follow the procedures outlined in this

remand in other cases unless again directed to do so in a remand decision;

current regulations do not require them to do so. Given this, it seems

unlikely that the goal stated in the 1991 memorandum by the

Chairman—that VBA staff will use remanded decisions to understand and

apply the legal principles to like cases—will be met in these types of cases.

Officials Disagree About

Requirements for Medical

Examinations

One aspect of duty-to-assist requirements demonstrates the existence of

this disagreement and its impact—the requirements for medical

examinations. As discussed in the case study above, Board officials

indicated that they have interpreted Court decisions since 1991 to require

that in the majority of cases physicians conducting disability

compensation medical examinations have the entire claim file so that the

examination can be a fully informed (thorough) one. In contrast to this

requirement, however, guidance used by VBA adjudicators in requesting

examinations specifically states that, normally, physicians will not be

given the claim file. Officials from VBA said that no one has clearly defined

what is necessary for a thorough examination and that VAROs may be

accepting a somewhat lower standard for thorough than the Board.

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Similarly, during our discussion with VBA and Board officials about the

above case, Board officials indicated that for essentially all cases in which

service connection is an issue, the Board needs the physician to state an

opinion about the likely relationship of any current disability to events that

occurred while in service. However, the guidance provided to VHA

physicians does not state that such opinions should be included. The

Secretary’s Court of Veterans Appeals Fact-Finding Committee also

discussed this problem, noting that the VHA physician’s role in the disability

claims process has been changed and expanded by the Court. The

Committee concluded that

“Physicians clearly must be assisted to better understand their role in the adjudicative

process and the legal implications of their statements.”

This example demonstrates another troubling aspect of interaction among

the organizations. VBA officials were apparently unaware that the guidance

did not conform to the Board’s interpretation of an adequate examination.

When we raised this issue during our review, VBA officials said that they

had not heard the Board indicate that the law required the claim file to be

available for virtually every examination or that an opinion about the

origin of any disability be stated.

Other medical examination issues concerning inconsistent interpretations

have also been long-standing concerns. One relates to how current a

medical exam needs to be for cases sent to the Board. In 1990, we reported

that VAROs were using different standards; some delayed decisions to

obtain new exams for appealed claims, others did not. We recommended

that VA provide VAROs guidance on this issue. The 1991 Chairman’s

memorandum to Board members pointed to additional issues related to

inconsistencies between Board interpretations of requirements and VARO

staff practices. These included the need for examinations by specialists,

the need for the physician to review the entire claim file before completing

a physical examination, and the need for VARO’s to “try again” to obtain

information. And, again in 1994, the VBA Analysis of Remands

recommended that the Board and VBA work together with an immediate

aim of developing guidance on medical examinations, including guidance

on age of examinations and need for specialty examinations, issues raised

in 1990 and 1991.

Having VBA policies and practices that differ from Board interpretations

contributes to inefficient claims adjudication and to the remand rate.

However, Board officials cautioned that appeals may be remanded for

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several reasons and changing policies and practices in the areas cited

above may not affect the remand rate overall. For example, even if the

claim file has been provided and an opinion expressed, if the examination

was inadequate for other reasons, such as needing a specialty

examination, the case would be remanded.

Concerns and

Inconsistencies Are

Resolved Slowly, If at

All

VA’s Office of General Counsel can issue interpretations of VA’s

responsibilities that are binding on all VA organizations, including VBA and

the Board. However, VA organizations have been slow to identify questions

needing General Counsel opinions and slow to seek resolution once they

have been identified.

If questions about interpretations arise between the Board and VBA or VHA

or if requirements need to be clarified, the organizations involved can

request a precedent opinion from the VA General Counsel. In addition to

the laws and regulations, each of the organizations is bound by these

General Counsel precedent opinions.13 However, for issues to be raised to

the General Counsel, they must first be identified as problems. As

discussed above, these inconsistencies are not always identified under the

current organizational structure and adjudication process.14

But even after problems are identified, the agencies are slow to react. For

example, although we pointed out the need for guidance on currency of

examinations in 1990, VBA did not request and receive a General Counsel

decision on this issue until 1995. A Board official indicated that although

the issue of age of the examination was raised in 1990, the issue did not

have any significant impact on claims and appeals processing until much

later, at which time a General Counsel opinion was requested and

obtained. However, the May 1994 VBA Remand Analysis raised concerns

about Board directions concerning age of the examinations (that is, the

Board was remanding cases because the examination was old), yet it took

until February 1995 for VBA to seek a General Counsel opinion.

The 1994 VBA Remand Analysis itself demonstrates other difficulties in

interaction among VA organizations. Although the study was completed in

May 1994, VBA did not send a copy of the report to the Chairman of the

13Organizations are also bound by instructions from the Secretary, though in our discussions VBA,

Board, and General Counsel officials all pointed to General Counsel opinions as the mechanism for

resolving differences in the issues we were discussing.

14For example, it was not until after our discussion of the issue of providing the claim file to physicians

conducting examinations that VBA requested a General Counsel precedent opinion to clarify the

requirement. VA’s General Counsel issued the opinion in July 1995.

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Board until late August 1994, with a letter apologizing for forgetting to

send the study.15 The Chairman immediately responded, agreeing to the

recommendation to establish a working group to develop guidance on

adequacy of examinations, but no such group was formed. Neither Board

nor VBA officials could provide a reason why it was not established but

suggested, perhaps, that no one took the lead.

Likewise, some issues raised in the Chairman’s 1991 memorandum

apparently are still not resolved. For example, the Chairman indicated that

procedures about obtaining specialty examinations were not always

consistent with Board interpretations, yet one recommendation of the

1994 VBA remand study was that VBA and the Board needed to develop

guidance on this issue.

Lack of Clearly

Defined Requirements

Hinders VA’s Ability to

Assess and Solve

Appeals Processing

Difficulties

A clear and consistent agencywide interpretation of VA’s responsibilities is

essential to resolving the claims adjudication dilemma. Additionally, a

clear understanding of VA’s responsibilities is necessary for a meaningful

analysis of the resources needed to meet those responsibilities and, in

turn, for developing solutions to overcome problems, including resource

constraints.

Both Board and VBA officials have indicated concern that their

organizations do not have the resources to meet the requirements set forth

in the act, especially Court and Board interpretations of those

requirements. An official in the Office of the Secretary stated that he is not

yet convinced that resource limitations cannot be overcome by improved

efficiencies and other initiatives, but other officials in the organizations

responsible for claims processing are less optimistic. A meaningful

assessment of needed resources, however, is not feasible without a clear

understanding of responsibilities.

Board officials emphasized to us that although continued and improved

interaction among VA organizations is important, they believe it is unlikely

to solve the appeals adjudication backlog. Board officials are concerned

about the resources the Board must invest to meet requirements set forth

in the act and Court decisions. They pointed to increased responsibilities,

especially the requirement to fully explain reasons and bases, for the

Board’s substantially reduced productivity. The Chairman stated that in

15VBA also stated that it had, with Board assistance, conducted two other remand studies (in

December 1994 and February 1995). Board officials said, other than providing the remand files, the

Board was not involved in the study and was never informed of VBA’s findings. VBA officials explained

that the studies had been inconclusive and there were no results to communicate to the Board.

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spite of the many initiatives under way to improve Board efficiency (see

app. I), without substantial increases in staffing, he did not expect the

backlog of appeals to be appreciably reduced. He said that even with

added resources it would take many years to get the backlog to a

manageable size.16

Likewise, VBA officials stated that their organization does not have the

resources to apply the requirements set forth in some Board remands to all

like cases. According to officials, the remands often require substantial

time and resources for development. For example, officials noted that the

development required in the above case study would require substantial

resources even for that one case. Similarly, during our discussion with

Board and VBA officials concerning the need for the VHA physician to have

the claim file, VBA officials said that doing that in most cases raises

resource issues, including the time it takes to transfer the file and the

difficulty in keeping track of the file once it leaves the VARO.

17 VHA also may

have difficulty meeting this requirement. For example, the Secretary’s

Court of Veterans Appeals Fact-Finding Committee reported in

February 1995 that VHA often uses contract physicians to perform the

physical examinations on veterans claiming disability compensation. The

report noted one such physician as saying that VA did not pay him enough

to spend the time it would take to review the claim file, even if VBA sent it.

The impact that various interpretations of requirements has on resources

underscores the need for organizations to agree on what those

requirements are. Board decisions directly affect VARO and VHA workloads;

for example, remanded decisions specify activities for VAROs in individual

cases and can require additional examinations by VHA. More generally,

Board decisions—interpreting requirements set forth in law and Court

decisions—can expand the level of effort VAROs must expend in assisting

veterans in filing claims. Similarly, VARO actions directly affect Board

workloads. For example, the increase in the number of remands increases

the Board workload in the form of claims returned for a second Board

review. Yet under the current legal and organizational structure, neither

organization has any responsibility for the amount of work it “causes” for

the other. A Board official said that the Board—like the Court—decides

16The Department, recognizing the need for more staff, included a small increase (28 staff) for the

Board in the 1996 budget request. The Congress was still considering VA’s budget request in

September 1995.

17Keeping track of claims files is a recognized problem in VA. Systems are being developed to better

track them, but officials noted that these systems would allow the VARO to know what VHA facility it

had sent the file to, but would not necessarily ensure it could be retrieved easily.

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cases on their merit and the Board cannot legally change its interpretation

of the law because it is administratively inconvenient or infeasible for VBA.

Recent Actions Could

Serve as Critical First

Steps

In May 1995, after several discussions we had with VBA and Board officials,

VBA initiated two actions that could represent important first steps in

improving interaction among the VA organizations and, in turn, service to

veterans. But much remains to be done to bring effective closure to these

efforts.

First, following a suggestion we made in April 1995, VBA conducted a study,

with assistance from the Board, to determine how well VAROs are

complying with Court precedent and procedural guidance. The study,

completed in June 1995, identified areas where VARO actions were not

consistent with Board interpretations and recommended that guidance to

VAROs be improved. But the study also confirmed our concerns about the

complexity of the appeals process and supported the need for continued

cooperation between the Board and VBA staff in developing guidance and

interpreting requirements.

VBA’s second action may provide a forum for this cooperation. On May 15,

1995, the Under Secretary for Benefits asked the Under Secretary for

Health, the Chairman of the Board, and the General Counsel to appoint

representatives to a permanent working group to address and resolve

claims processing problems. The Under Secretary pointed to information

we supplied about failure to implement previous recommendations calling

for intra-agency efforts as the impetus for establishing this group. The

working group held its first meeting on July 13, 1995.

Study Finds No Difference

in Organizations’

Interpretations but Sees

Need to Clarify Guidance

For the May 1995 study, Board staff attorneys and VBA staff independently

reviewed a small sample of appeals recently certified by VARO staff to be

ready for Board consideration. (With the current backlog of appeals, the

Board would not expect to officially review these claims for another 2

years.) VBA recognizes that this was not a statistically representative

sample, but sees it as a sufficient number to identify any frequently

occurring problems. Both staffs reviewed 115 appeals.18 A single claim can

be appealed on several issues. VBA staff identified 185 separately appealed

issues in the 115 claims; Board staff identified 193 issues. There were 166

issues that both staffs identified and reported on. They reviewed the

appeals separately, then met to discuss general observations.

18VBA selected two appeals from each VARO. Of the 116 cases, 115 were reviewed.

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VBA concluded, based on the Board staff results, that if these cases came to

the Board now, about 42 percent of the appeals would be remanded, a

somewhat lower percentage than the 1994 rate of about 48 percent, but

still troubling.19 The reviewers identified areas in which they believe

guidance to VAROs needs to be clarified. Key areas include failure to

address issues, inadequate development, inadequate examinations, failure

to assess all medical evidence, inadequate handling of new and material

evidence issues, failure to issue supplemental statements of the case when

appropriate, and improper identification of issues. Officials stated that the

problems occurred because VARO and VHA staff failed to follow existing

guidance, not because guidance was inconsistent with Board

interpretation of requirements or Board and VBA staffs’ judgment varied.

The study recommended that guidance be improved and, in several

instances, sought participation by organizations other than VBA to do so.

Two recommendations involving the Board are for development of (1) a

checklist for use by VARO staff in certifying an appeal as ready for Board

review and (2) a training program on appeals.20 The Chairman of the Board

has agreed that to the extent resources permit the Board will work with

VBA in implementing the recommendations that included the Board. The

study also recommended that a focus group of VHA physicians and staff

review the issue of inadequate examinations, which this study again found

to be a significant problem. The study report notes that using the expertise

of VHA physicians will provide VBA and the Board valuable information on

the examination process and that working in unison will result in the

quality examination necessary.

Continued Focus on

Interpreting

Responsibilities and

Resolving Problems Is

Critical

The VBA study of certified appeals identified significant issues and could

serve as a solid basis for intra-agency action and an initial focus for the

newly established permanent working group. But the study results

themselves point to the difficulties that VA may face in providing an

agencywide interpretation of key responsibilities; they indicate that VBA

and Board reviewers may have seen requirements with regard to some

responsibilities differently. Likewise, the study itself was of limited scope

and may not be sufficient to bring to light all significant problem areas.

19The data may actually show the potential for an increase in the remand rate. Board staff emphasized

that they did only a cursory review of the appeals and a full review might identify other problems.

Also, overall, at least one of the groups of reviewers cited a high or moderate chance for remand in

64 percent of the appeals.

20VBA also has sent to each VARO a list of tips on avoiding remands prepared by the Board. This list,

though providing limited explanations for actions included, covers many of the issues identified in

prior reviews of remands and this review of recently certified cases.

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Although Board and VBA reviewers apparently agreed on key areas needing

attention, their views of specific appeals were in some cases very

different. For example, for almost one-third of the 166 issues both groups

assessed, one of the groups cited a high or moderate chance of remand

and the other cited no chance. For 17 percent of the issues the difference

was between a high chance and no chance. Similarly, although both Board

and VBA reviewers individually concluded that about one-half of the issues

had no chance of being remanded, they were often different issues. They

both saw no chance in only 26 percent of the same issues.

In some cases the reviewers even identified different issues as being under

appeal; overall, VBA staff identified 19 issues that the Board did not identify

and Board staff identified 27 issues that VBA did not identify. Although in

some cases this resulted from one or the other separating out issues that

the other combined (4 individual orthopedic issues as opposed to 1

combined issue), in others, very different issues were involved.

These results raise questions about the consistency with which VBA

headquarters staff and Board staff view legal requirements. Although the

two groups agree on the broad requirements, such as the need to better

develop claims, meet duty-to-assist responsibilities, and ensure adequate

examinations, they may not agree on the specifics of how or when to apply

these requirements. For example, both raised issues of how the VAROs

handled new and material evidence issues, but not always on the same

appeals.

These are important issues. If staff work together to discover the reasons

for different assessments of cases, they may be able to more clearly

identify and communicate what is required in different types of situations.

Their review of the same cases may also provide a consistent basis for

discussion to help to develop guidance that can be clearly understood.

However, this study by itself may not be sufficient. This one-time effort

will not identify problems that might arise over time as Court and Board

interpretations are further developed through individual decisions.

Additionally, review of completed Board remands also may be needed. A

review of recently certified appeals, as was done in this study, can provide

a better picture of the adequacy of current VARO actions but may not

surface differences between the organizations with regard to all issues.

The case study cited earlier serves to demonstrate this possibility. Even if

both parties agreed that the case should be remanded and an examination

obtained, VBA officials disagreed with some of the specific actions the

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Board required as part of the remand, such as soliciting information on all

past health care providers and obtaining those records. We found

disagreement about these types of actions—which may not be the cause of

the remand but are specified in Board decisions as actions required.

Actions such as these can have a significant impact on the resources as

well as the time necessary to adjudicate the appeal. These resource and

timeliness issues also have implications for other claims if they are to be

applied in like cases.

Conclusions VA’s current legal and organizational structure, the complex nature of the

claims adjudication process, and the current fluid environment brought

about by the Veterans’ Judicial Review Act and the Court make effective

interaction among VA organizations imperative. Although the Board, VBA,

and VHA have unique roles, they are intimately linked in the claims and

appeals adjudication process. VA has many internal forums for interaction

among these organizations, but greater effort is needed.

There are many procedural and interpretive areas in which multiple VA

organizations are involved. Ensuring clear and consistent interpretation of

VA’s adjudication responsibilities, such as duty-to-assist requirements, is

one obvious area needing the involvement of all the organizations involved

in adjudication. If VBA and VHA policies and practices and Board

interpretations of legislative and judicial requirements are not consistent,

the likelihood of remands and reversals and the resulting inefficient claims

processing increases. VA needs to clearly define what it believes is required

and do so in a way that ensures that the Board, VHA, and VBA follow

requirements consistently. Because Court and Board interpretations

evolve over time, this must be an ongoing process.

The recent VBA and Board review of appeals certified as ready for Board

review by VAROs is a solid first step in identifying issues that currently

require clarification. Ensuring resolution of these issues could be an

important focus of the recently established permanent working group. The

Claims Adjudication Commission also offers the possibility of

recommendations for significant improvement, having looked at the

adjudication process in its entirety, not just from one organization’s

perspective.

But difficulties are likely to remain. VA organizations have agreed to work

together and to clarify guidance in the past, but these actions were not

always completed. It is also unlikely that the Adjudication Commission

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recommendations will address the detailed problems we found in

interpretation of VA’s responsibilities. And, short of action to substantially

alter the organizational structure of VA—for example, to abolish the Board

or consolidate claims adjudication functions into a limited number of

VAROs—the need for effective interaction among VA organizations will

continue.

Both the historical and current difficulties in interaction reinforce our

1990 recommendation that a focal point be established for the appeals

process as a whole. The nature of the current problems and possible

solutions suggest that the only way to ensure that intra-agency issues are

identified and resolved may be for that focal point to be designated at the

Department level. Such a focal point could help the Department ensure

that at this time and in the future promised cooperation leads to closure.

More importantly, the appeals process faces significant difficulties; clearly

defining responsibilities is a beginning step, not a full cure. If

responsibilities, once clearly defined, are such that one or more of the

organizations does not have the resources to carry them out, new

solutions will be needed. They could include amending legislation to

reduce or at least better define VA’s responsibilities, obtaining more

resources, or reconfiguring the agency. The nature of the problems and of

their possible solutions suggests the need for active involvement above the

level of the autonomous organizations—each of which views the claims

and appeals process in terms of its unique responsibilities and capabilities.

Recommendation The Secretary of Veterans Affairs should designate a Department-level

official to monitor actions by the Board, VBA, and VHA to identify and

resolve intra-agency impediments to efficient claims and appeals

processing. This individual should be charged with making

recommendations to the Secretary, if necessary, to ensure resolution of

problems. The recently established permanent working group could serve

as the focus of these monitoring efforts and the designated official could

report to the Secretary and make recommendations about problems that

the working group is unable to effectively resolve.

A first priority of this official should be monitoring the progress of the

organizations in implementing the recommendations of the VBA study of

recently certified appeals and ensuring that VBA and VHA policies and

practices are consistent with Court and Board decisions. These efforts

should be ongoing to ensure such consistency, obtaining General Counsel

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opinions where needed and to ensure that any resource or organizational

difficulties are identified and resolved.

Agency Comments In a meeting on August 15, 1995, VA’s Chief of Staff, the Under Secretary

for Benefits, the Chairman of the Board of Veterans’ Appeals, and other

key officials commented on a draft of this report. The VA officials

acknowledged that appeals processing is one of the most serious problems

currently facing the agency. They stated that they concurred with our

recommendation and that the Deputy Secretary sees clearly identifying

and resolving problems with the claims adjudication process as his

responsibility. They see the recommendation as reemphasizing the

importance of efforts under way by the Deputy Secretary and other key

officials to solve this problem.

The officials said that they have been focused on the overall issue of

VBA/Board timeliness for some time and that efforts to improve the

timeliness of VARO claims processing have been successful. They said that

emphasis and resources will continue to be devoted to improving VBA

timeliness, but that increased attention now has been placed on the Board

and on the VBA/Board interface. The officials indicated that they are

committed to reducing appeal processing time significantly. They noted

that three presidential appointees confirmed by the Senate are directly

responsible to the Secretary and Deputy Secretary for taking the steps

necessary to improve timeliness and that the Deputy Secretary is actively

involved in ensuring that each facet of the adjudication structure works

with the common goal of putting veterans first. Each official understands

the necessity for early identification and resolution of inconsistent

interpretations of law. They also noted that specific actions to ensure

identification and resolution of problems have been suggested in the many

studies already done. Officials said that many of these ideas have been or

will be implemented and that those discussed in our report are good ideas.

They also said that the actions that are not being done need to be done,

and those that are not being done well must be improved. They believe

that the necessary mechanisms are in place to identify any inconsistent

interpretations and resolve them through the General Counsel. Officials

said that time will tell if this increased awareness and focus will resolve

the problem.

We agree that the active involvement of the Deputy Secretary, especially

with an increased focus on appeals, could have a positive impact on

resolution of appeals problems. This is especially true if actions previously

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recommended are implemented and if, through existing mechanisms, such

as the permanent working group, VA actively pursues the issue of

inconsistent interpretations and other interface problems. VA officials,

however, did not offer any details of actions expected to be taken.

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Appendix I 

Recommendations and Actions to Improve

Staff Performance and Process Efficiency

This appendix summarizes the key recommendations made in the seven

studies that we reviewed that are not directly related to interaction among

VA organizations. Most of those recommendations relate to improving staff

performance or improving the efficiency of the current process.

Several studies have identified ways to improve staff performance at VBA

and the Board by means of guidance, training, and performance standards.

Although VA has begun or completed a variety of improvement efforts,

determining their adequacy is difficult. Studies also have recommended

many changes to increase process efficiency. VA has implemented some of

these recommendations and, as a result of other legislation and

management initiatives, has plans for implementing others. However, the

Board Chairman said that in spite of these efforts to improve staff

performance and increase efficiency, the problems of appeals backlog and

processing delays will continue.

Efforts to Improve

Guidance and

Training Difficult to

Assess

A key focus of several of the studies was the need to ensure that regional

staff fully and accurately develop and decide claims. Poorly developed

claims have been recognized as an important cause of slow claims

processing in general and, more specifically, remanded cases because

most require some additional development. The studies made a variety of

recommendations to improve the way that staff develop cases, to increase

the number of staff available to make rating decisions, and to improve

guidance.

The Secretary’s Court of Veterans Appeals Fact-Finding Committee

concluded that VA’s guidance was adequate but that training was

inconsistent and not all VARO staff were receiving training that allowed

them to understand and apply legal concepts. In fact, one of the problems

identified was that VARO staff were increasingly unprepared to meet the

more complex requirements being imposed by the Court.

VA has undertaken or planned many efforts to improve guidance and

increase training for VARO adjudication staff. For example, VBA has

developed training guides, increased centralized training, and created

training materials for use by VAROs. VBA has recently completed a manual to

use as a reference guide when developing claims. It is organized by type of

claim and can be left open so that staff can refer to the checklists while

they are developing claims. As discussed above, VA also has procedures to

communicate new Court requirements to VARO staff within 4 to 8 weeks. VA

plans to develop a multivolume Rating Specialist Training Guide and, as

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Staff Performance and Process Efficiency

the Rating Schedule for each body system is rewritten, they will also

develop 1- or 2-day training programs for each body system.

Other related activities include implementing a new position of rating

analyst technician to help ensure that development is complete before the

claim is rated and developing a certification process for rating specialists.

Likewise, VA routinely modifies performance measures and workload

standards so that they more realistically reflect development

requirements.

Some recommendations also addressed the need for performance

standards and training for Board staff attorneys and Board members. VA is

in the process of implementing these recommendations. New attorney

performance standards went into effect in April 1994, and the first round

of annual performance evaluations has been completed. A training

committee has been established, and attorney training has begun.

Performance standards for Board members were established for the first

time in February 1995; no performance assessments have been done yet.

Because the training is relatively recent and the guidance is new,

evaluating their effectiveness is difficult. However, an even greater

concern is whether the training and guidance are addressing the right

issues. Issues raised in recently remanded cases may not be indicative of

current regional office activity because the Board is currently looking at

claims that were decided by VAROs about 2 years ago. This issue was

highlighted in Board member comments to the Secretary’s Court of

Veterans Appeals Fact-Finding Committee. They noted that measuring

current VARO compliance was difficult because of the age of the cases they

were reviewing. To address this concern, in June 1995, staff from VBA and

the Board completed a review of 115 appeals recently certified by VAROs as

ready for Board review. As discussed in chapter 3, they concluded better

guidance and training are needed in several areas.

Evaluating the effectiveness of the training and guidance is also difficult

because determining how many staff have been trained or received

guidance is not possible. For example, although teleconferences are held

monthly to discuss new Court decisions, no requirements exist concerning

which VARO staff should attend those conferences and no records are kept

about who actually does attend. In addition, trainers from VBA will

sometimes train one or two staff from a VARO who will then be responsible

for training others in their VARO. Although records are maintained about

staff who participate in centralized training programs, records are not

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Appendix I 

Recommendations and Actions to Improve

Staff Performance and Process Efficiency

routinely maintained about who has actually received which training in

VAROs.

Steps to Improve

Productivity Taken

and Planned, but

Backlogs Expected to

Continue

As early as 1990, we recommended that VA take steps to improve the

timeliness of claims processing. Increasing backlogs and reduced

timeliness since then have focused more attention on the efficiency of

claims adjudication. For example, the November 1993 Blue Ribbon Panel’s

mission was to identify ways to improve timeliness and reduce the claims

backlog. Subsequent studies of the appeals process, including the

June 1994 Select Panel on Productivity Improvement, have reiterated the

Blue Ribbon Panel’s recommendations.21

As a result of legislative and procedural changes, VA has identified actions

that address study recommendations. Some actions (in addition to those

implemented as a result of the Blue Ribbon Panel) have already been

taken.

• As a result of the Board of Veterans’ Appeals Administrative Procedures

Improvement Act of 1994, enacted in July 1994, appeals may be assigned to

either an individual member of the Board or to a panel of no fewer than

three members. This ended the 60-year requirement that decisions be

issued by a panel of three members. VA estimates that this change will

result in a 25-percent increase in productivity at the Board.

• The Veterans’ Benefits Improvements Act of 1994, enacted in

November 1994, permits the Board to screen cases on appeal at any point

in the decision process to determine whether the record is adequate for

decision purposes. This procedure makes it possible to send files back to

the responsible VARO so that they can be properly developed while waiting

to come before a Board member.

• A variety of reference materials are available on-line or using CD-ROM

technology, both in VAROs and at the Board. VAROs are able to access a

package of personal computer-based national standardized letters; Court

decisions; VBA policies and procedures; and VBA program directives,

manuals, and circulars. Board staff have access to 1992 and 1993 Board

decisions, Court decisions, and the Physicians Desk Reference via

CD-ROM and such reference documents as the Board Chairman’s

Memoranda and applicable federal regulations on-line.

• One recommendation from the Select Panel was to revise the timeliness

measurement system to measure the entire length of time that appeals are

21For additional discussion of the status of VA’s implementation of the Blue Ribbon Panel’s

recommendations, see Veterans’ Benefits: Better Assessments Needed to Guide Claims Processing

Improvements (GAO/HEHS-95-25, Jan. 13, 1995).

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Appendix I 

Recommendations and Actions to Improve

Staff Performance and Process Efficiency

processed. This measurement has been revised and focuses attention on

improving timeliness of appellate services from a customer perspective.

The measurement starts when VA receives a substantive appeal and ends

when the appellant receives a final decision.

• The November 1994 legislation required VAROs and the Board to expedite

cases remanded by the Board or the Court. In June 1994, VBA had

instructed VAROs to handle remands on a priority basis (that is, to begin

work within 7 days of receipt) and to track timeliness of remand

processing to ensure that they are processed on a priority basis. However,

VAROs also had and still have several other types of priority cases,

including Persian Gulf cases.

• The November 1994 legislation also made the payment schedule for Board

members equal to that of administrative law judges and eliminated the

9-year term. Until 1988, the security and compensation of the two

positions were about the same. In 1988, the Veterans’ Judicial Review Act

established 9-year terms for Board members, while administrative law

judges did not have a limit. Then, in 1991, Congress created a substantial

gap between the compensation for these two, essentially similar, positions.

During the 13-month period following July 1993, nine Board members left

to work as administrative law judges and other members were on the

register to do so. To halt the flow of experienced Board members, the

Secretary supported legislation to equalize compensation.

Other changes, such as the following, are anticipated.

• Although as of May 1995 the plans were on hold, VBA is developing

procedures for a test of an imaging system to allow copies of documents

to be stored electronically, so that, ultimately, paper files will not be

needed. The system is being tested for original education claims in four

VAROs. At this time there are no plans to test imaging documents for

appellate cases.

• The July 1994 legislation enabled appellants to participate in hearings with

the Board using teleconference or videoconference equipment if such

facilities and equipment are available. In July, the Board began holding

videoconference hearings with the St. Petersburg regional office and plans

to test a three-way conference with the Des Moines regional office and

Iowa state offices.

• A system of advanced docketing for Board cases has been in effect since

January 1994, whereby the case folders remain in the VARO but the case is

entered on the Board’s docket. In an effort to reduce remanded cases,

since October 1994, VAROs have had certification procedures to check files

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Recommendations and Actions to Improve

Staff Performance and Process Efficiency

just before they are sent to the Board to ensure that they are complete.

The Board began requesting these cases from the VAROs in July 1995.

• In the July 1994 legislation, the absolute limit on the number of Board

members was eliminated. The Board plans a limited increase in the

number of Board members, and also plans to hire additional staff

attorneys to assist Board members.

• The Board has received approval from the Secretary for an internal

reorganization. Among other things, the three-member Boards, with

assigned staff attorneys, will be broken up. Board members will work in

four sections (about 15 Board members, 50 staff attorneys, and 18

administrative staff in each). The sections will be associated with specific

VAROs. The goals of this reorganization include increasing the number of

decisionmakers, reducing administrative support, and improving

communication with VAROs.

Page 52 GAO/HEHS-95-190 VA Appeals Processing
Appendix II 

Major Contributors to This Report

Charles Taylor, Evaluator-in-Charge

Cynthia Forbes, Senior Evaluator, (404) 679-1922

Julian Klazkin, Senior Attorney

Pamela A. Scott, Communications Analyst

Richard Wade, Senior Evaluator, (404) 679-1872

(105735) Page 53 GAO/HEHS-95-190 VA Appeals Processing
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