THE BOARD OF VETERANS’ APPEALS 

AND APPEALS MANAGEMENT CENTER

Hearing

before the

Committee on Veterans’ Affairs

House of Representatives

Subcommittee on Disability Assistance 

and Memorial Affairs

one hundred ninth congress

first session

May 5, 2005

Printed for the use of the Committee on Veterans’ Affairs

Serial No. 109-5

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Committee on Veterans’ Affairs

Steve Buyer, Indiana, Chairman

Michael Bilirakis, Florida Lane Evans, Illinois, Ranking

Terry Everett, Alabama Bob Filner, California

Cliff Stearns, Florida Luis V. Gutierrez, Illinois

dan burton, Indiana Corrine Brown, Florida

Jerry Moran, Kansas Vic Snyder, Arkansas

richard H. baker, Louisiana Michael H. Michaud, Maine

Henry E. Brown, Jr., South Carolina Stephanie Herseth, South 

Jeff Miller, Florida Dakota

John Boozman, Arkansas Ted Strickland, Ohio

Jeb Bradley, New Hampshire Darlene Hooley, Oregon

Ginny Brown-Waite, Florida Silvestre Reyes, Texas

Michael R. Turner, Ohio Shelly Berkley, Nevada

 Tom Udall, New Mexico

Mike Copher, Acting Staff Director

Subcommittee on Disability Assistance

and Memorial Affairs

Jeff Miller, Florida, Chairman Shelley Berkley, Nevada, 

Jerry Moran, Kansas Ranking

Jeb Bradley, New Hampshire, Vice Chairman Tom Udall, New Mexico

Ginny Brown-Waite, Florida Lane Evans, Illinois

 

PAIGE MCMANUS, Subcommittee Staff Director

(II)
CONTENTS

MAY 5, 2005

 Page

The Board of Veterans’ Appeals and Appeals Management

 Center ....................................................................................... 

OPENING STATEMENTS

Chairman Miller .......................................................................... 

Prepared statement of Chairman Miller .................................... 

Hon. Shelley Berkley, Ranking Democratic Member, 

 Subcommittee on Disability Assistance and Memorial

 Affairs ...................................................................................... 

Hon. Tom Udall ........................................................................... 

Witnesses

Garvin, Ron, Acting Chairman, Board of Veterans’ Appeals ....

Prepared statement of Mr. Garvin .............................................

Walcoff, Michael, Associate Deputy Under Secretary for Field

 Operations, Veterans Benefits Administration .....................

Prepared statement of Mr. Walcoff ............................................

Bascetta, Cynthia, Director, Education, Workforce, and Income

 Security, U.S. Government Accountability Office ..................

Prepared statement of Ms. Bascetta ..........................................

Chisholm, Robert V., Past President, National Organization

 of Veterans Advocates .............................................................

Prepared statement of Mr. Chisholm .........................................

Surratt, Rick, Deputy National Legislative Director, Disabled

 American Veterans ..................................................................

Prepared statement of Mr. Surratt ............................................

POST-HEARING QUESTIONS FOR THE RECORD

Chairman Miller ..........................................................................

Hon. Lane Evans .........................................................................

Hon. Ginny Brown-Waite ........................................................... 

Hon. Tom Udall ...........................................................................

ADDITIONAL INFORMATION FOR THE RECORD

100 Oldest Remands, as requested by Ranking Member 

 Berkley .....................................................................................

(III)

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Oversight HEARING on the board of 

veterans’ appeals and appeals 

management center

Thursday, May 5, 2005

(1)

U.S. House of Representatives,

Subcommittee on Disability Assistance and

Memorial Affairs,

Committee on Veterans’ Affairs,

Washington, D.C.

 The subcommittee met, pursuant to notice, at 10:30 a.m., in Room 

334, Cannon House Office Building, Hon. Jeff Miller [Chairman of 

the Subcommittee] presiding.

 Present: Representatives Miller, Berkley, Udall, Moran, and Evans.

Opening statement of Chairman Miller

 Mr. Miller. Good morning, everybody. We will call the hearing to 

order. The Ranking Member is on her way, as is Mr. Evans. But in 

view of the fact that we are at 10:30, a little bit past, I would like to 

go ahead and start the hearing to receive testimony on the policy and 

operational issues facing the Board of Veterans’ Appeals and the Appeals Management Center.

 There are some serious backlog issues, I think as everybody recognizes, at the Board and at the AMC. And I look forward to better 

understanding what the Department is doing and intends to do to 

make the appeals process more efficient for veterans and other beneficiaries.

 When a claimant disagrees with a decision by a VA regional office 

or medical center, he or she has the right to appeal that decision. 

The number of appeals continues to increase, and unfortunately 

some claimants wait several years before a final decision is made on a 

claim. One purpose of our hearing this morning is to determine areas 

to shorten or shave off, if you will, time on those delays.

 Among the questions I hope that we will address today: Is the 

system itself too cumbersome procedurally? Is additional staff going 

to solve the problem? As many of you are aware, this committee recommended in its fiscal year 2006 budget views and estimates an ad-
2

ditional $6 million, for another 50 FTEs for the Board. Is the backlog 

a symptom of the way claims are being filed or claims filing behavior, 

and therefore resistant to any improvement efforts?

 I am also interested in knowing how BVA and the AMC set performance goals and objectives, and how those goals may be met.

 I welcome all of our witnesses who are here today. I look forward 

to your comments and suggestions for improving the accuracy and 

disposition times of appeals.

 And I would like to recognize our Ranking Member, Ms. Berkley, 

for an opening statement.

Opening Statement of Hon. Shelley Berkley

 Ms. Berkley. Thank you very much. I do want to thank the chairman, Chairman Miller, for holding this hearing to review the operations of the Board of Veterans’ Appeals and the Appeals Management 

Center.

 My Las Vegas office -- that’s my congressional district -- is assisting 

-- we have many, many requests for help in this area. I have the fastest-growing veterans population, and there are a lot of outstanding 

claims out there.

 We are currently assisting a Gulf War veteran who has numerous 

medical conditions and has been waiting for a decision on his appeal 

since 1999. This is six years that this veteran has had to wait to hear 

a yes or a no. I think veterans deserve to have their claims decided in 

a fair and consistent and timely manner.

 Every claim that could be granted, in my opinion, should be granted. Denial of a claim should occur only after the facts have been fully 

developed and when the law doesn’t support an award of benefits. I 

am also very concerned with the wide variation in decisions made by 

regional offices across the country that I understand takes place.

 Data from the regional offices and the board suggest that the decisions made are highly accurate. However, this is inconsistent with 

my experience in my office and inconsistent with the low percentage 

of appeals which are upheld by the board and the court. Nevada has 

the third-highest reversal rate in the country, and that is a very big 

concern for me.

 I hope today’s witnesses will give us a better understanding of the 

rationale for the wide discrepancies. Too many veterans contact my 

office with concerns that reveal errors in their claims for benefits, 

and Committee staff during site visits to regional offices have found 

missed opportunities for the VA to award benefits.

 I am also concerned about the number of remands which have 

been languishing in the system for years, and in some cases, although 

rare, decades. What actions can the VA take to identify cases which 

have been pending for an extraordinary period of time to thoroughly 
3

review and finally resolve them?

 There must be X number of cases that we just need to get off 

the table. Would it be possible for the VA to conduct a study of the 

hundred oldest claims pending remanded claims, and to provide the 

Committee with a summary of the problems which are identified as 

contributing to the delay?

 It seems patently unfair and almost unconscionable that we are 

putting our veterans in this position. And if they don’t deserve to 

have their claims taken care of, then let’s get them off the table. If 

they do, let’s grant them and get these veterans the help and the care 

that they need.

 I hope that you are going to be able to answer my questions. I am 

sure you will. And I want to thank you, again, for being here. We 

appreciate your service. And I am most anxious to hear your testimony.

 Mr. Miller. Mr. Evans.

 Mr. Evans. I have no remarks, Mr. Chairman.

 Mr. Miller. Mr. Udall?

Opening Statement of Hon. Tom Udall

 Mr. Udall. Thank you, Mr. Chairman. And thank you for holding 

this important hearing today on oversight of the Board of Veterans’ 

Appeals and the Appeals Management Center. As all of my colleagues do, I have numerous constituents with complaints pending 

at the Board of Veterans’ Appeals. The current average time it takes 

to have an appeal to claim adjudicated by the board is 2.7 years. I

am sure the panelists here today will agree that this is totally unacceptable.

 I appreciate the efforts the department has made in the past few 

years to streamline appeals decisions and remands. But clearly, 

more needs to be done. In looking ahead at Mr. Garvin’s written 

testimony, I see a list of goals to improve the accuracy and timeliness 

of disability, pension, education, and other claims. I hope you will 

discuss in detail when you will achieve these goals.

 This is extremely important to my veteran constituents and their 

families, who expect me not only to help them navigate through the 

red tape, but to cut it down when sensible. And I look forward to the 

testimony.

 Thank you, Mr. Chairman. I yield back.

 Mr. Miller. Thank you, Mr. Udall.

 I would like to remind everybody that this hearing is being broadcast live via the Internet worldwide. And also, to the Members, you 

can go back and look in an archive section of our Committee website 

and actually access a recording of our prior Committee hearings as 

well.
4

 So thank you to our first Committee witnesses at the table this 

morning. Members, I would like to introduce Mr. Ron Garvin, who 

is the Acting Chairman of the Board of Veterans’ Appeals. He is accompanied today by Mr. Steven Keller, Senior Deputy Vice Chairman 

of the Board.

 Mr. Garvin was named Acting Director of the Board in October of 

2004, and was appointed by President Bush. Previously, he served 

as the Board’s Vice Chairman. Following graduation from Dickinson 

School of Law in 1965, Mr. Garvin joined the Navy, and throughout 

his 26-year military career served as a prosecutor, a defense lawyer, 

trial and appellate judge.

 The other witness on this panel is Mr. Michael Walcoff, Associate 

Deputy Under Secretary for Field Operations at the Veterans Benefits Administration. Mr. Walcoff is accompanied by Ms. Renée Szybala, Director of VA’s Compensation and Pension Service, and Mr. 

Keith Wilson, Director of the Appeals Management Center.

 Mr. Walcoff began his career at VA in 1974 as a veterans claims 

examiner at the Philadelphia Regional Office and Insurance Center. 

He received a B.A. from American University and a J.D. from Temple 

University School of Law. He is currently responsible for the 57 regional offices under the Veterans Benefit Administration, which has 

a workforce of 12,000.

 We will hold our questions, each of us, until each of you has had an 

opportunity to testify.

 Mr. Garvin, please begin.

STATEMENTS OF RON GARVIN, ACTING CHAIRMAN,

 BOARD OF VETERANS’ APPEALS, ACCOMPANIED BY

 STEVEN KELLER, SENIOR DEPUTY VICE CHAIRMAN,

 BOARD OF VETERANS’ APPEALS; AND MICHAEL

 WALCOFF, ASSOCIATE DEPUTY UNDER SECRETARY

 FOR FIELD OPERATIONS, VETERANS BENEFIT ADMIN-

 ISTRATION, ACCOMPANIED BY RENÉE SZYBALA, DI-

 RECTOR, COMPENSATION AND PENSION SERVICE, 

 VETERANS BENEFIT ADMINISTRATION, AND KEITH

 WILSON, DIRECTOR, APPEALS MANAGEMENT CENTER

STATEMENT OF RON GARVIN

 Mr. Garvin. Good morning, Mr. Chairman. It is a pleasure to discuss the operations of the Board of Veterans’ Appeals with you, the 

members of the Subcommittee, and your staff.

 The Board’s testimony before the Subcommittee on Benefits given 

in February of 1994 and June 1998 provide important background 

information.

 In fiscal year 1994, the Board issued about 22,000 decisions. The 
5

pending caseload stood at 47,000, and was on its way to 60,000. Our 

measure of timeliness then used, the average response time, was 781 

days.

 By fiscal year 1998, our timeliness had markedly improved, and 

our pending caseload was down to less than 30,000 cases. We issued 

38,886 decisions, and we held 4,876 hearings. Appeals resolution 

time, the measure of time from the notice of disagreement until final 

decision on appeal, was 687 days.

 I am proud to report that since 1998, we have consistently improved. In fiscal year 2004, the Board issued 38,371 decisions, almost 

as many as were issued in 1998, and we conducted 7,259 hearings, 

which is a substantial increase from 1998.

 The appeals resolution time increased to 529 days. Our cycle time, 

the time that it actually takes the Board to issue a decision, excluding 

the time the case is with the service organization representative, was 

98 days. Cases pending at the end of 2004 stood at 21,430. Significantly, we accomplished these results with 440 FTE. That is 43 less 

than we had in 1998.

 These improvements over the past few years occurred in spite 

of several significant events, including the impact of the Veterans 

Claims Assistance Act of 2000 and the initiation and then the termination of the Board’s evidence development due to a decision in 

the United States Court of Appeals for the Federal Circuit entitled 

Disabled American Veterans v. Principi.

 We have received a lot of help in our success, including from the 

Congress, who has provided unqualified support for the appellate 

rights of veterans and their families; the veterans service organizations, who represent about 85 percent of the applicants; VA leadership, that supports improvements in the appeals process to ensure 

that veterans receive timely and quality decisions; and the staff of 

the Board, including the veterans law judges, counsel, and administrative support staff.

 Through their efforts, productivity has increased over historical 

levels by 20 percent for staff counsel and 25 percent for veterans law 

judges. The number of hearings held has also increased, with videoconference hearings nearly doubling since 1998. Finally, the average 

number of decisions per employee has increased from nearly 50 in 

1994 to 80.5 in 1998 and 87.3 in 2004.

 Two of the most significant and persistent challenges we face are 

eliminating avoidable remands, and increasing productivity to contain and reduce the appellate backlog.

 In regard to remands, we know that veterans want a timely and 

correct decision on claims for benefits. For the Board to do that, the 

record must contain all the evidence necessary to decide the claim 

and show that all necessary due process has been provided. If the 

record does not meet those requirements and the benefits sought can-
6

not be granted, a remand for further development is necessary.

 Remands lengthen the appeals resolution time. One remand adds 

about a year to the process. Remands also divert resources from processing other claims and the appeals.

 We are working with Van Breda, Office of General Counsel, and 

VHA to identify and track root causes of remands and provide training, and ultimately to eliminate avoidable remands. The results are 

already encouraging, with the remand rate for the first part fiscal 

2005 dropping to 42.6 percent, as compared to 56.8 percent in 2004. 

For February and March of this year, the remand rate was even lower, 38.4 percent, and it is trending downward.

 If nothing had been done, our backlog was projected to grow to unacceptable levels. The Board’s backlog disposition time, the projected 

time it would take the Board, working at its current rate, to eliminate 

the backlog, would have increased from 170 days in 2004 to 391 days 

in 2006, and nearly 600 days by 2008.

 Through incentives and sound management, we have beat our past 

projections, and we intend to do so this year. And we are going to do 

that by:

 Eliminating avoidable remands by strengthening our intra-agency 

partnerships, that is, our joint training efforts with VBA, OGC, and 

VHA; by writing shorter, more concise decisions that are correct; by 

utilizing employee incentives, mentoring and training programs for 

all of our employees; by making use of overtime within existing resources; and by increasing our use of paralegals for non-decisional 

support activities.

 We believe these measures will work to reduce the backlog and 

shorten the time it takes for a veteran to receive a well-reasoned 

Board decision. Already we have reduced the time it takes for an 

appeal to be finally resolved from 686 days in fiscal 1998 to 529 days 

in fiscal 2004. Our decision quality has improved from 88.8 percent 

in 1998 to 93 percent in 2004, and our cycle time is a little over three 

months.

 In conclusion, we intend to continue working to develop new and 

creative solutions to the challenges we face in order to fulfill our statutory mission, to hold hearings, and provide timely, high quality decisions to our nation’s veterans and their families.

 I would be pleased to answer any questions for you or your colleagues, sir.

 [The statement of Ron Garvin appears on p. 29]

 

 Mr. Miller. Thank you very much. We will continue on with Mr. 

Walcoff.
7

STATEMENT OF MICHAEL WALCOFF

 Mr. Walcoff. Chairman Miller, Members of the Subcommittee, 

thank you for providing me the opportunity to appear before you today to discuss the Department of Veterans Affairs’ Appeals Management Center operations.

 My statement today is divided into two parts. I will begin, as you 

have requested, by discussing VBA’s AMC operation. Then I will 

briefly discuss the joint BVA/VBA remand reduction project.

 The Appeals Management Center was created in July 2003 to manage remands by the Board of Veterans’ Appeals. VBA determined 

that the best way to manage remand processing was to consolidate 

the responsibility to a single processing center where resources and 

expertise could be concentrated.

 The AMC has complete authority to develop remands, reach decisions based on additional evidence gathered, and authorize the payment of benefits. If the AMC is unable to grant an appeal in full, 

the appeal is recertified to BVA for continuation of the appellate process.

 The AMC began receiving work from BVA in July of 2003. The 

initial work coming to the AMC consisted of two types of cases. The 

first category of cases consisted of remands generated by BVA after 

July 2003. The second category was comprised of those cases that 

were pending in BVA’s development unit at the time that the U.S. 

Court of Appeals for the Federal Circuit made its decision in Disabled 

American Veterans v. Principi.

 Since BVA no longer had legal authority to initially consider any 

evidence it developed, the cases pending development actions were 

converted to remands by BVA between July 2003 and January 2004, 

and transferred to the AMC jurisdiction. There were 9,000 cases in 

this category.

 VBA projected the volume of remand workload to be 13,000 remands per year. Based on this projection, the AMC was staffed with 

87 employees. Due to a higher than expected remand receipt rate, 

the influx of 9,000 additional remands in the initial operating year, a 

strategy was developed to increase resources on a temporary basis to 

assist the AMC with claims decisions.

 An additional 46 employees were temporarily assigned to accomplish AMC work, beginning October 2004. These employees are located at VBA’s resource centers in St. Petersburg, Huntington, and 

Cleveland.

 Since October 2004, the AMC inventory of pending remands has 

been reduced from 24,000 to 21,000. The goal is to reduce the pending inventory to 18,000 by the end of fiscal year 2005, and 12,000 by 

the end of fiscal year 2006. Once these goals are met, the additional 

resources assigned to the AMC will be redirected to compensation 
8

claims at VBA’s regional offices.

 The AMC has enabled VBA to significantly improve the time it 

takes to complete a remand. During fiscal year 2003, regional offices took an average of 700 days to complete a remand. Currently, it 

takes the AMC an average of 400 days to complete a remand.

 A strategic goal of 230 days, on average, has been established. This 

goal represents the minimum time needed to complete a remand, given the requirements of the Veterans Claims Assistance Act of 2000 

and other legal requirements.

 VBA does not require additional resources to reduce the number 

of remands pending. The high number and average age of pending 

remands are more closely related to procedures and due process requirements than to a lack of available resources.

 Remands are unique in that they often require sequential development steps with requisite waiting periods between each step. The 

appeals resolution process is necessarily prolonged to ensure that all 

necessary evidence is obtained and considered.

 Now I want to talk very briefly about the remand reduction project. 

In July 2004, the Deputy Secretary requested VBA and the Board of 

Veterans’ Appeals to accomplish three tasks: one, to agree upon a 

reliable process for capturing information prospectively on reasons 

for remands; two, to conduct a retrospective analysis on a representative sample of remands to validate the agreed-upon tool; and third, to 

develop a plan for remedying the problem of avoidable remands.

 On November 8, 2004, VBA and BVA submitted a report to the 

deputy secretary containing its planned remedial measures. VBA

agreed to change claims procedures to more thoroughly document the 

record when attempts to secure federal records, such as Social Security records, failed, or attempts to identify PTSD stressors failed.

 VBA also agreed to conduct additional field training on key areas such as VCA requirements and compliance, and obtaining Social 

Security records and disability decisions, medical examination and 

opinion issues, and certifying appeals to BVA.

 The VBA/BVA team developed a new protocol to record reasons for 

remands. The protocol in use since November 2004 distinguishes between remands due to VBA error, remands based on BVA’s authority 

to develop evidence in the absence of a VBA error, and unavoidable 

remands such as those resulting from changes in law.

 These joint efforts are proving successful. The remand rate in fiscal 

year 2005 is 43 percent as of the end of March. This compares with 

the fiscal year 2004 remand rate of 56.8 percent. And for the month 

of March of 2005, the remand rate was 37 percent. Our goal is to 

reduce the remand rate to 30 percent.

 In summary, VBA has increased its focus on the appellate workload over the past several years. Through our actions and the actions 

taken in collaboration with BVA, we have implemented measures to 
9

reduce the number of remands and improve the timeliness of appeals 

processing. We believe we are moving in the right direction, and 

continuing efforts will allow us to significantly improve the appeals 

process for veterans.

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

respond to any questions that you or other members of the subcommittee have.

 [The statement of Michael Walcoff appears on p. 33]

 Mr. Miller. Thank you very much, Mr. Walcoff.

 If I might ask a question or two, and then the other members will 

ask some questions.

 First, Mr. Garvin, I think everybody has a copy of the Chairman’s 

Report. Is this -- yes, this is it. In the report, you highlighted a 180 

percent increase in new appeals between fiscal years 2001 and 2004.

 And my question is: To what do you attribute that drastic increase?

 Mr. Garvin. One of the increases was a period of time after the 

VCAA when the appeals sent to the Board from the field were interrupted as we worked out the Department’s processes on how to 

handle those VCAA appeals there in the year 2002.

 Mr. Keller. 2001.

 Mr. Garvin. 2001 and 2002. The pipeline essentially was dried up. 

So for that period of time, there was a lull in the number of appeals 

coming up. But since we have gotten back to normal processing, we 

are at the more predictable and higher rate.

 Mr. Miller. You said there was a lull, and you said there was a 

cessation because you were trying to figure out how to work through 

the transition. But I am concerned about the 180 percent increase. 

A lull to me says there is a decrease, but I don’t guess I am following 

your response.

 Mr. Keller. Well, there was a period of --

 Mr. Garvin. Mr. Keller will address that.

 Mr. Keller. I am sorry. Yes. I was there at the time before Mr. 

Garvin became the Vice Chairman. There was a period of time following the enactment of the Veterans Claims Assistance Act during 

which the regional offices had the option of reworking 100,000 appeals, of claims that had been previously denied because they were 

not well grounded.

 And they did so. That diverted resources from doing new appeals 

to rework those that had been previously denied and which would not 

have been denied under the VCAA.

 As a result, that consumed their energies. The appeals new appeals were not sent to the Board in the quantities they had been before and have been since.

 So there was that hiatus in the receipt of appeals by the Board dur-
10

ing that year, year and a half period. So our receipts dropped and our 

productivity accordingly dropped during that period of time. Since 

that time, those appeals have been worked and regional office productivity on new appeals has increased even beyond the levels they were 

at before the VCAA. So that is sort of a blip in the productivity.

 Mr. Miller. Well, let’s try this one. What are the most common 

errors or reasons for a 56 percent remand rate on disability compensation decisions? Why are we getting -- it appears to me 56 percent 

of those that are being sent up are remanded back. What are the 

reasons for that?

 Mr. Garvin. Well, the primary reason or the one most frequently 

cited in the remands was compliance with the VCAA. Even though 

we reworked that large group of cases that were in the field, it took 

us -- it has taken us much too long to figure out how to do it correctly. 

So there is an awful lot of those remands that were sent back for the 

procedural compliance requirement.

 After that, the second most frequent reason has to do with physical 

examinations, whether they be complete enough, whether there is a 

nexus opinion, or whether they are just stale by the time we receive 

them at the Board for final decision.

 Mr. Miller. Can you walk us through just a typical appeal? I

mean, I know there is no such thing as a typical appeal. But kind 

of explain to the Committee Members what happens and, you know, 

what information is sent up, requested.

 You know, I think all of us have constituents call our office and they 

are just totally exasperated with the system in one way or another. 

And, you know, the length of time and -- can you just kind of give us 

an idea of how it works?

 Mr. Garvin. Yes, sir. When the appeal is received at the Board, 

it is initially docketed -- has been docketed in the field. When we 

receive it, it goes into the general population of cases pending before 

the Board.

 Now, by statute, we have to decide the cases at the Board in accordance with docket order number. So therefore, the oldest cases 

coming in receive the initial attention of the judges.

 Mr. Miller. Can I ask you a question? Is there a statutory requirement for time that they must be adjudicated?

 Mr. Garvin. Other than the oldest docket number first, no. So 

we work from the oldest ones forward. And it depends on the -- as 

you may or may not know, we are divided into four decision teams. 

And we try to stay very close to docket order number, but we also 

have a slight balance by the geographic jurisdiction of each of the 

four teams.

 Once that case is taken out of the general population or storage 

area and begun to work, the case is then sent to the service representative, if there is one, so that they can examine the case, case file, 
11

and present any additional evidence or argument that they have on 

the case.

 After they have completed their examination of the file, it is returned and distributed by our central staff to the decision teams, 

where the judges will have an attorney, one of the staff attorneys, 

look at the file, draft a decision, and present the draft decision to the 

judge for either signature or returned for additional work.

 At that point, if the judge signs off on it as being an acceptable 

product, then we process it for distribution to the applicant.

 Mr. Miller. Is it true that you are working on docket numbers in 

2003 now?

 Mr. Garvin. I believe that is correct, yes.

 Mr. Keller. Late 2003 and early 2004, in that range.

 Mr. Miller. Okay. Ms. Berkley?

 Ms. Berkley. Thank you, Mr. Chairman. I know that you have got 

a lot on your plate, and I know that it is not an easy task that we have 

tasked you with. I think it is important to keep in mind that even 

though we pressure you for getting these cases expedited and getting 

them done in a timely manner, there is also an issue of getting them 

done right the first time.

 And I am very concerned about the lack of appropriate number 

of staff in order to do your job right. If I am not mistaken, it seems 

that the information I got is the time taken by the Board is going to 

increase by 170 days at the end of 2004, and I think your testimony 

said to 391 days by the end of 2006, and then up to 600 and some odd 

days, I think, perhaps two years later or a year later.

 Do you have -- in your opinion, do you have the adequate personnel 

to do the job that you have been tasked with?

 Mr. Garvin. We think we are going to be able to reduce those figures 

substantially. Those figures, as we put in our annual report, indicate 

that these are the progressions if we do nothing unusual to attack 

the backlog.

 One of the things that we are counting on for that purpose is the 

avoidable remand project that we are undergoing now.

 Ms. Berkley. Yes. That was one of my later questions. But as long 

as you brought it up, you mentioned eliminating avoidable remands. 

How do you eliminate avoidable remands?

 Mr. Garvin. We are making a greater effort to look at, number 

one, the VCAA compliance; number two, the adequacy of the most 

frequently cited reasons for remand, and that is the medical examinations.

 We are taking a much closer look at them. And we are working, 

quite frankly, on issues, along with the VBA, so we can identify the 

weaknesses in the system. And as we are trying to do better decisions on rationalization as to whether or not the procedure, VCAA

procedure, is adequate, we are also looking more carefully at the doc-
12

umentation for the medical examinations, including the supporting 

documentation, which we may not have been giving as close a scrutiny in the past as we should have. And we are concentrating on that 

as we try to improve our decisions.

 Ms. Berkley. So in other words, those of us that have been working 

very hard to get more money in the budget for you to get more staff, 

we should stop doing that?

[Laughter.]

 Mr. Garvin. I would never refuse any help, ma’am. But I am not 

asking for it.

 Ms. Berkley. I see. All right. Let me ask you a question. And you 

brought this up also, so it segues into another question that I had. I

think one of the things you said that you were working on to eliminate the avoidable remands was medical examinations or medical 

opinions.

 Let me ask you a question. We have a case right now that I guess 

they approached the Committee. And it was a veteran, and I am 

going to read this because this is what I have, but a veteran whose 

claim for service-connection of a seizure disorder and other disabilities related to head injuries filed his appeal in 2000.

 He recently contacted the Committee. The veteran was currently service-connected at zero percent for several scars, including two 

scars potentially related to the head injuries claim. And then after 

the claim was remanded to the AMC, a medical evaluation was conducted which did not provide a basis for service-connection.

 However, apparently the head injury scars were not considered as 

part of that evaluation, because the remand order did not require it. 

And it seems to me if somebody has got scars on the head and they 

are saying that they have got head injuries and that is why they are 

appealing their claim, that somebody should have picked this up and 

directed that the medical examination included looking at the scars 

for the head injury.

 Is that what you are talking about correcting?

 Mr. Garvin. That is part of it. We went through a period in our remands where we did not specify the precise medical corrections that 

we were looking for, the additional medical evidence that we were 

looking for. And that is one of the areas which we have worked together with VBA to improve upon.

 We are now asking our judges to become more specific in their remands, rather than saying, would you look at the head.

 Ms. Berkley. Let me ask you a question. I realize this is only six 

months old, and I guess in government standards, that is not a lot of 

time unless you are waiting on the other end for a decision.

 But December 29, 2004, in the Staley decision, the court said, ``Of 
13

significant concern to the court is VA’s admission that there are currently no written standard operating procedures regarding the date 

stamping and mailing of Board decisions.’’

 What actions have been taken in the last six months to address the 

Board’s concerns?

 Mr. Garvin. I am going to have Mr. Keller address that one.

 Mr. Keller. We now have written procedures in place regarding 

the mailing of our decisions. We are examining that entire process 

to make sure we can document for the record when the case was sent 

and to whom and at what address it was sent.

 So we took that decision quite seriously. We now have procedures 

in place for our administrative service. And we should have what we 

call a Chairman’s Memorandum, which sets forth our internal operating procedures regarding dispatch of decisions. We think we have 

come a long way to address the court’s concerns.

 Ms. Berkley. Okay. Good. I have a number of questions, but 

the Chairman is admonishing me that there are others that need to 

speak. Well, in a nice way. It wasn’t a hard admonishment. It was 

just get on with it. Let me ask you one more question on the record. 

And if you don’t mind, I would like to submit some questions to you.

 In my opening statement, I talked about the possibility of finding 

the hundred oldest? The claims they have been in the system for an 

awful amount of time, decades in some instances.

 Is there any possibility of bringing those to light and adjudicating 

those first? You said that they were -- you know, they went by order 

of date. But how are some of these lasting decades, and what do we 

do to resolve them?

 Mr. Garvin. Let me first give you some preliminary, and then I am 

going to turn it over to Mr. Walcoff. Yes, we do, I think, cooperatively 

look for the very old decisions.

 When our travel boards visit each of the ROs, that is one of the 

areas in which we attempt to provide assistance to the ROs. If they 

have those cases which have been in the field for quite a long time, we 

will offer and in most instances are able to help look at those cases.

 Mr. Walcoff. I don’t see any reason why we couldn’t give you -- do 

the research that you are requesting and provide that information for 

you. I would be very willing to do that.

 [This information is provided on p. 86.]

 Ms. Berkley. And I am hesitant to take any more of your time and 

resources to do this when you need to be doing your jobs. But perhaps 

it would be instructive for all of us and we can just get these cases 

dealt with because I am convinced that every veteran in the United 

States is moving to Las Vegas, Nevada and I am going to have to deal 

with all these cases eventually. So the sooner I can get them off the 

table, the easier my staff’s job is going to be.

 So I thank you very much, and I am going to submit a list of other 
14

questions, if you don’t mind. I would appreciate a response. And 

thank you for being here.

 Mr. Walcoff. Thank you.

 Mr. Miller. I would also like somebody to research why all the 

veterans are moving to Las Vegas.

 [Laughter.]

 Mr. Miller. Mr. Moran -- no, no, no, no, no. I would like to go to 

Mr. Moran before we go to Mr. Udall. Mr. Moran.

 Mr. Moran. Thank you very much, Mr. Chairman. Thank you and 

Ms. Berkley for conducting this hearing. It is a topic that we hear 

about regularly from our constituents.

 Mr. Walcoff, it is my understanding that it is taking about 400 

days for the Appeals Management Center to complete a remand. You 

indicated in your testimony that you have a goal of 230 days. That 

is an admirable goal, I guess, although it still seems like 230 days is 

a long time.

 What is the time frame for you to reach that goal? And kind of 

more importantly, not just what your goal is, but how do you get 

there? What is it that is going to allow you to get from 400 days to 

230 days, and then what are we going to do to get that time frame 

even shorter?

 Mr. Walcoff. I think part of the reason why we are at 400 days 

right now has to do with the way the work initially came in to the 

AMC. In a short period of time, not only did we get work coming in as 

it would normally come in from BVA, but we also got that large block 

of cases that had been in the development unit. 9,000 cases basically 

came into the AMC over a very short period of time.

 And we had to develop a way to do the initial development on all 

those cases, and then be able to deal with them as the evidence started coming back. And that is the reason why we have added resources 

and that sort of thing.

 But to handle that big block of cases that are all at about the same 

stage is taking us longer than it would if we just had the normal flow. 

So one of the things that we are anticipating is as we get through 

that big clump of cases and get them all resolved, that the system is 

set that we have enough personnel that we would be able to resolve 

these remands in as expeditious a manner as we can that is allowed 

by the law.

 I would ask Mr. Wilson to explain to you about the 230 days because that was my reaction also when he first talked to me about 

what standard we want to set for that. So Keith, why don’t you explain why we settled on 230 days.

 Mr. Wilson. Sure. Good afternoon. 230 days is a goal that was 

established largely based on the requirements of the VCAA, the Vet-
15

erans Claims Assistance Act. When we go out and ask for evidence 

from a veteran, from a doctor, from the Federal Government, we are 

required to wait a certain period of time, and that is 60 days, at each 

of those stages. So we have a 60-day window that we allow the respondent to provide us the information in.

 In addition to that, most of the remands that we see are sequential 

in nature. In other words, we are required to take the first step on 

the remand. Once that step is completed, we move to the next step. 

So we can oftentimes see two or three situations where we have a 60-

day window where we are waiting for evidence.

 In addition to that, at the end of the remand process, if we are not 

able to grant the benefit in full, then we will issue a supplemental 

statement of the case to the appellant. And they have a 60-day window to review that information and provide any additional comments 

that they want to provide prior to us recertifying the case back to 

BVA.

 So we have several windows that we are required to wait for certain periods. In between those windows, we establish ten-day turnarounds to move it from one stage to the next once we are able to 

complete the previous stage.

 Mr. Moran. Statutorily, what you are telling me is that statutorily, 

the veteran has a 60-day period of time in which to respond kind of 

each step of the way?

 Mr. Wilson. That is correct.

 Mr. Moran. And is there any reward for a veteran who takes less 

than the 60 days? If the veteran responds to you in ten days or a 

month, does that speed up the process, or that 60-day period is still 

open?

 Mr. Wilson. It does speed up the process. The faster we can get the 

claim to a decision-maker, the better off the veteran is. So certainly, 

when we send out our initial letter to the veteran telling them who 

we are, what we are doing, we encourage them to get the information 

to us as quickly as possible.

 Mr. Moran. In other words, the 60 days is not an excuse used by 

the VA to delay putting the file in the process, having the adjudication occur?

 Mr. Wilson. No.

 Mr. Moran. As long as you have the information, that file is going 

to proceed?

 Mr. Wilson. That is correct.

 Mr. Moran. Okay. Is this a long-time problem? My experience in 

Congress now is about ten years. This has been an issue since I came 

to Congress and have been a member of the Veterans Affairs Committee. Is this a historic problem at the VA, or is the problem getting 

exacerbated over time, the problem being the amount of time?

 Mr. Walcoff. What I would say to you is that certainly the VCAA
16

law -- we know how long that has been around; it has been around 

since 2000, 2001. So I am not going to say to you that before that, 

everything was -- we were doing everything, you know, in a timely 

manner.

 But I do believe it has added on to the time. It was not necessarily 

what we wanted to begin with, but it certainly has made it worse, is 

what I would answer to that.

 Mr. Moran. The chairman is probably more lenient with the ranking member than he will be with me, and that red light came on. But 

let me ask this question: Is there any statutory changes -- I have not 

read your testimony, and maybe you have made some suggestions -- 

but is there anything that you see as an impediment, that Congress 

needs to change the law that keeps you from doing your job in a more 

timely fashion?

 Mr. Walcoff. I am going to ask Ms. Szybala to answer that. She is 

the -- as the head of C&P service, she is responsible for policy in this 

area. And there certainly have been discussions about this.

 Mr. Moran. Thank you, Mr. Secretary.

 Ms. Szybala. We have reviewed -- VA has reviewed and Congress 

has reviewed the appeals process several times. I know of three offhand. The secretary has reviewed it more recently, as has the under 

secretary.

 Basically, all the reviews come out with some consistent recommendations. One is to close the record. This is a particularly difficult 

one, very hard to get your hands around to do it right, to do it in a way 

that is fair to the veteran. So that is not going to happen any time 

soon, but it is certainly something we are considering.

 All the recommendations that have come to us from these committees and commissions and task forces are still on the table. One is -- a 

lot of them are regulatory.

 The 60 days, the 60 days for the VCAA response, is not statutory. 

It is not statutory. It is not in the VCAA. But it is VA policy, and it is 

in our manual, and it is in our VCAA letters. We give them 60 days. 

We need to study that. We need to study whether that is the right 

amount of time, whether that is the amount of time that veterans 

need.

 Under the VCAA, they have an hour -- I am sorry -- they have a 

year in any case. So this is just the time we have to wait before we 

can move further. They will still have the year, and they can always 

give us more evidence within that time.

 Things like that are under consideration. We are looking at changes 

in the DRO process. The DRO is the decision review officer, which is 

a part of the VA side of the appeals process. We are looking at whether changes need to be made there which can help speed it along.

 So I don’t really have suggestions for statutory changes for the appeals process right now. We will be back to you when we think of any. 
17

Closing the record would take some statutory changes.

 Mr. Moran. Thank you, Mr. Chairman.

 Mr. Miller. Thank you very much. Let the record show Mr. Moran 

went two minutes and 16 seconds over for next.

 Mr. Udall.

 Mr. Udall. Thank you, Mr. Chairman. I will try to stay within my 

time here, since you are keeping track here.

 Could you talk a little bit about -- I want to go to that last question. 

When you talk about closing the record, could you talk a little bit 

about what you are talking about and what kind of statutory changes 

we might be looking at? I know you are saying you don’t want to recommend it right now. But could you do that a little bit?

 Ms. Szybala. Well, one of the recommendations that makes most 

sense to me would be to close the record at the point in time that the 

case goes to the Board, when the Form 9 is filed, when the case has 

been certified to the Board, or when the Form 8 is filed and the case 

has been sent to the Board.

 At that point, it is in appellate status, true appellate status, no 

longer at the RO. And anything new that the veteran gives the Board 

beyond the things that the Board is allowed to look at -- the hearing 

that the Board holds or new medical exam -- anything else that the 

veteran gives new has to be remanded to the RO.

 And this causes a constant cycle. If veterans knew, and their providers, their VSOs, knew, that they needed to get all their evidence in 

at the point in time that they certify their appeal to the Board, I think 

we would have less problem there.

 The veteran could still give that evidence in to the RO. It would 

just be looked at in a different claim, and the claim that they appealed to the Board would go forward. That is the kind of closing the 

record that makes most sense to me.

 There are certainly other ways to look at it. Another way is to make 

the Board appellate only, so that the Board actually only reviews the 

correctness of an RO decision. It doesn’t have difference of opinion 

kind of authority. It is not looking at de novo.

 That also would mean the Board is not taking new evidence, but it 

would be more of a sea change in what we use the Board for, what the 

Board is able to do now.

 Mr. Walcoff. Renée, let me interrupt for one second. This issue of 

evidence that comes in after the case has been certified to the Board 

is an interesting one because this is part of the reason why we always 

react a little bit when people look at remands and have them as being 

comparable to errors.

 Very often we will certify a case to the Board and new evidence 

comes in, and that is what causes the Board to remand the case. 

There is nothing that the RO did that is at fault. It is just that new 

evidence has come in, and the system allows that evidence to be con-
18

sidered by the Board.

 And it is the same thing with grants. Just because the BVA grants 

a case that we had denied doesn’t necessarily mean that the RO had 

made a mistake. It might be that new evidence came in that has 

changed what they are looking at. So this is part of the overall process that makes it so complex.

 Mr. Udall. And in your analysis, do you think it is more efficient 

to do it the way you are doing it, where you don’t close the record? 

I mean, mean -- you know, I am familiar with legal cases. I mean, 

clearly you close the record in the appeals and the appellate courts. 

You close the record. There isn’t any new evidence. There isn’t this 

issue of something surfacing that is new, and then remanding it back 

and redoing it.

 Have you looked at whether or not this is an efficient way of doing 

it like this? Or would it be more efficient to close it, deal with that 

case, and then -- and as you say, deal with a future case or something 

along that line?

 Mr. Walcoff. I mean, you really could always take the new evidence as a new claim.

 Mr. Udall. Right. As a new claim.

 Mr. Walcoff. But to answer your question, I am not -- you know, 

is it more efficient? It depends upon how you define efficient. You 

know, I think that when we decide anything that we would do in this 

area, we obviously have to be very sure that we are looking at what 

is fair to the veteran, you know, and certainly approach it from that 

aspect as well as the ``efficiency’’ aspect.

 And I don’t know where that balance is at this point. And that is 

something that if we are going to look at, we have got to really look at 

it with an idea of making sure that we maintain that fairness.

 Mr. Udall. Well, when you say is it fair to the veteran and talk 

about efficiency, I mean, what I am talking about is getting them as 

quick a resolution as is reasonably possible on their issue.

 And so if this new evidence that comes in is directly related and 

you can handle it much quicker in a remand than you can starting 

an entirely new case, obviously the way you are handling it is totally 

acceptable. But if it is delaying it with this bouncing back and forth, 

then I think we need to take a look at it in terms of closing the record.

 This closing the record has been in place for a long time, I guess. 

Right? And it is probably -- not closing the record. But it has been 

there for the benefit of the veteran, I am sure.

 Mr. Walcoff. Correct.

 Mr. Udall. That is why you all keep the record open, so that they 

can submit anything at any point.

 Mr. Walcoff. That is right.

 Mr. Udall. Yes. So it would be a big issue in terms of changing that 
19

and closing it out and opening new cases. Thank you for enlightening 

me and the Committee there.

 Mr. Miller. Thank you, Mr. Udall. Thank you, members, for your 

questions. And again, some members will be submitting written 

questions for your response. We thank you for being with us today, 

and we’d like to excuse you and ask the other witnesses to come forward.

 We are going to have a vote called in just a few minutes. But I

would like to go ahead and see if we can move forward as expeditiously as possible.

 Thank you very much. If I might introduce Cynthia Bascetta, Director of Education, Workforce, and Income Security at the Government Accountability Office. She is accompanied by Ms. Irene Chu, 

the Assistant Director of that same department.

 Ms. Bascetta joined GAO in 1983, and since 1998 has directed their 

reviews of the effectiveness and efficiency of VA’s health care and disability compensation programs. She has also led GAO’s work on the 

Social Security Administration’s disability programs. Her work over 

the years has helped lay the foundation for bipartisan legislation to 

improve disability compensation programs for both VA and the Social 

Security Administration.

 You may begin, Ms. Bascetta. Thank you.

STATEMENT OF CYNTHIA BASCETTA, DIRECTOR, 

 EDUCATION, WORKFORCE, AND INCOME SECURITY, 

 GOVERNMENT ACCOUNTABILITY OFFICE, ACCOMP-

 ANIED BY IRENE CHU, ASSISTANT DIRECTOR, EDUCA-

 TION, WORKFORCE, AND INCOME SECURITY

 Ms. Bascetta. Thank you, Mr. Chairman.

 I appreciate the opportunity to be here today to provide an update 

of our 2002 review of the Board’s quality assurance system. In that 

review, we found that the Board needed to correct weaknesses in how 

it selected decisions for quality review and how it calculated the accuracy rates of these decisions.

 Based on our analysis of information we reviewed in April this 

year, we determined that the Board has taken action to significantly 

strengthen its quality review system. I will focus my remarks today 

on the three areas in which we recommended improvements.

 First, we found in 2002 that the Board’s sample size was adequate 

for estimating its accuracy rate. But we pointed out some Board 

practices that might result in misleading accuracy rates.

 In particular, we found that the Board was not ensuring that decisions made near the end of the fiscal year were sampled or that quality review results were being properly weighted in the formula used 

to calculate their accuracy rates.
20

 But in 2002, the Board agreed to correct these practices, and our 

updated work shows that in fact the Board did take corrective action 

in fiscal year 2002 to ensure that the decisions made near the end of 

the year are also sampled.

 We also found that the Board had not revised its formula for calculating accuracy rates in order to properly weight the quality review 

results for original decisions made by veterans law judges versus the 

results for decisions made on cases that the court had remanded to 

the Board for rework.

 At the same time, the Board’s reported accuracy rate of 93 percent 

for fiscal year 2004 would not have been materially different even if 

the Board had corrected this methodological error. Nevertheless, corrective action needs to be taken to avoid the potential for reporting 

a misleading rate in the future, and the Board has agreed to correct 

this issue in the very near future.

 Secondly, our 2002 review reported that the Board included nonsubstantive deficiencies in calculating its reported accuracy rates. 

These deficiencies would not be expected to result in either a remand 

or a reversal by the court.

 We concluded that the reported accuracy rates would have been 

higher if the Board counted only substantive deficiencies in its accuracy rate calculation. In fact, VBA had stopped counting nonsubstantive deficiencies after the VA claims processing task force found 

in 2001 that mixing serious errors with less significant deficiencies 

could obscure what is of real concern.

 Similarly, we recommended that the Board’s accuracy rates take 

into account only those deficiencies that would be expected to result 

in a reversal or a remand by the court. In fiscal year 2002, the Board 

implemented this recommendation.

 Third, we brought to the Board’s attention two standards that 

government agencies should meet: the internal control standard for 

separation of key duties, and the performance audit standard calling 

for organizational independence for agency employees who review 

and evaluate program performance. The Board had not met these 

standards because certain veterans law judges, who were directly involved in deciding veterans’ appeals, were also involved in reviewing 

the accuracy of those decisions. The Board took prompt action to correct these problems in 2002 while our review was still ongoing.

 While our update shows much improvement in the Board’s quality 

assurance process, I would like to take this opportunity to say a few 

words about another key measure, that is, the consistency of disability decisions.

 Our 2002 report highlighted the fact that adjudicator judgment is 

inherent in the disability decision-making process. As a result, we 

recommended that VA systematically assess consistency within VA

as a whole, including decisions made by the Board and those made by 
21

the VA’s 57 regional offices.

 VA still lacks such a system, but VBA and the Office of the Inspector General have recently begun reviews to try to explain the wide 

variations from state to state in average compensation payments per 

veteran.

 We continue to believe that in addition to making improvements 

in accuracy, VA must have a better understanding of consistency to 

provide reasonable assurance that veterans’ cases are decided fairly 

and equitably.

 I would be happy to answer any questions that you or the other 

subcommittee members might have.

 [The statement of Cynthia Bascetta appears on p. 39]

 Mr. Miller. Thank you very much. I don’t have a question, just a 

statement. I just want to say thank you for your agency’s work over 

the years. The information that you have been able to provide to the 

staff has been extremely valuable to assist them in doing their jobs, 

and I just want to personally say thank you for what you have been 

doing.

 And I would like to defer to the other members who are here. Ms. 

Berkley?

 Ms. Berkley. Okay. The Chairman tells me we are going to have 

a vote called any moment. But perhaps in your testimony you have 

already addressed this, but let me make sure that I understand.

 Thank you very much for being here and for your report. You have 

found that since 2002, VBA has improved the sampling process for 

quality and improved the organizational independence of quality reviewers. But you do remain concerned about the lack of consistency 

in adjudication throughout the VA and appellate review.

 Do you think that the high number of remands and reversals related -- are the high number of remands and reversals related to the 

lack of consistency in decision-making?

 Ms. Bascetta. I can address that in two ways. First of all, there are 

two sets of remands. There are the remands that the court would 

send back to the Board. We have not studied that part of the process. 

There are also the remands that the Board sends back to the initial 

decision-makers, and in that regard, as you have heard from the previous panel, it is a very complicated process.

 You know, the second review, the Board review, is a de-novo process which gives veterans the opportunity, a chance to have their case 

heard afresh. And I think the most important comment that I would 

make on a conceptual level is that there is a significant amount of 

adjudicator judgment in many of the cases. And for that reason, we 

don’t expect 100 percent consistency.

 What we are asking VA and other agencies, particularly the Social 
22

Security Administration, to do -- because they all face this same problem -- is to have a measure for what is a tolerable level of variability. 

Without that, it is hard to know what the remand rates, or the reversal rates, for that matter, really mean.

 Ms. Berkley. Okay. Thank you. One other question, if I could.

 GAO’s recommendation to count only deficiencies which would 

be likely to result in a reversal or remand from the court, can you 

explain why there is such a high remand rate from the court if the 

quality of Board decisions is as high as the 93 percent accuracy rate 

reported?

 Ms. Bascetta. Well, again, accuracy -- the accuracy rate at the 

Board is computed under a system in which the reviewer does not 

have the opportunity to substitute their judgment for the decision 

that was made.

 Once it goes to the court, though, there is the opportunity to do exactly that, to interpret evidence differently. And again, it is hard to 

know, you know, whether that 58 percent remand rate is reasonable 

or not without knowing, you know, more about the actual bases for 

those remands.

 But a good part of it could be explained by a difference in judgment.

 Ms. Berkley. Okay. Thank you very much.

 Mr. Miller. Mr. Moran?

 Mr. Moran. I have no questions, Mr. Chairman.

 Mr. Miller. Thank you very much, Ms. Bascetta and Ms. Chu. 

Thank you for being with us.

 Ms. Bascetta. Thank you.

 Mr. Miller. We would like to go ahead and call the next witnesses 

forward, and we will see if we can move this through before we have 

to leave for a vote. I will introduce you as you are getting set up.

 Mr. Robert Chisholm is the past president of the National Organization of Veterans Advocates. Since 1991, he has been representing 

veterans before the VA and the Court of Appeals for Veterans Claims. 

He also has appeared before the United States Court of Appeals for 

the Federal Circuit.

 In 1998, he was elected to serve as the president of National Organization of Veterans Advocates, and served in that position until 

2004.

 Mr. Rick Surratt is the Deputy National Legislative Director of the 

Disabled American Veterans. He began his career with them as a 

national service officer in 1976. In 1998, he was named to his current 

position.

 Mr. Surratt enlisted in the U.S. Army in 1966 and was wounded 

during combat field operations in Vietnam. He was honorably discharged from the Army in 1969.

 Mr. Chisholm, Mr. Surratt, we appreciate you being here with us 
23

today. And Mr. Chisholm, would you please begin your testimony.

STATEMENTS OF ROBERT V. CHISHOLM, PAST PRESI-

 DENT, NATIONAL ORGANIZATION OF VETERANS AD-

 VOCATES; AND RICK SURRATT, DEPUTY NATIONAL

 LEGISLATIVE DIRECTOR, DISABLED AMERICAN 

 VETERANS

STATEMENT OF ROBERT V. CHISHOLM

 Mr. Chisholm. Thank you, Mr. Chairman and members of the subcommittee. And thank you for the opportunity to present the views 

of the National Organization of Veterans Advocates on operations of 

the Board of Veterans’ Appeals and the AMC.

 As attorneys representing veterans in this system, we don’t really have much experience with the AMC because any veteran that 

is represented by counsel immediately bypasses the AMC and goes 

straight back to the regional office. So my comments today will be 

directed mainly about the Board of Veterans’ Appeals.

 A claimant who files a new claim for benefits that is denied by the 

VA usually faces whether from a three- to five-year horizon before he 

or she receives a final decision from the Board of Veterans’ Appeals.

 If that same claimant then appeals the case to the Court of Appeals for Veterans Claims, it may take another 12 to 18 months for 

the court to render a final decision. And when the court acts in the 

claimant’s favor, what that usually means is the case is remanded or 

sent back to the Board of Veterans’ Appeals for a new decision.

 The remand from the Court of Appeals for Veterans Claims provides the claimant with the opportunity to submit additional evidence and arguments in favor of the claim at issue. And it preserves 

the claimant’s favorable effective date if there is in fact an award of 

benefits.

 The problem, however, is that many claimants that I and members 

of NOVA represent do not survive, literally survive, this protracted 

adjudicatory process. Those claimants that do survive are subjected 

to interminable delays before the VA.

 I would like to focus my attention first on the issue of remanded 

claims from the Court to the Board and from the Board to the regional 

office. In 1994, Congress enacted the Veterans Benefits Improvement 

Act, which provided that remanded claims should be treated expeditiously. The intent behind the VBIA and the subsequent statutory 

codification is clear. Congress wants those claims handled quickly.

 You heard earlier Mr. Garvin testify about the docketing of BVA

appeals. And this is an area that is of grave concern to me because 

when a veteran’s claim comes up the ladder and is assigned, say, a 

1999 docket number, and then it goes to court and is then remanded 
24

back, it should retain that 1999 docket number.

 And let’s assume, further, that the board then remands the case to 

the regional office, and let’s say it is an issue of service connection for 

a mental disorder and the veteran then gets an award of benefits, but 

it is less than the full amount of what that veteran was seeking. Let’s 

say he only gets a 50 percent award and wants a 100 percent award.

 Well, when that veteran appeals back to the Board to try and 

get that 100 percent, typically that veteran is not receiving the 1999 

docket number, in my experience. We have had to file -- by ``we,’’ I 

mean myself and other members of NOVA -- have had to file writs of 

mandamus to compel the BVA to assign the proper docket number.

 Just yesterday I checked on two cases, one of which I filed a writ at 

the regional office to compel expeditious treatment went to court and 

I was told I would get -- the client would get expeditious treatment. 

And then when it went to the Board, it was assigned a 2005 docket 

number in a case that should have been assigned a 2000 docket number.

 This happens all too frequently, unfortunately. And I would submit that the claims being remanded from court to the Board, going 

down to the RO, and coming back are not receiving the expeditious 

treatment they are entitled to and that Congress desired.

 Another concern I have is the way that the Board provides statistical tabulations to Congress. Every year in the BVA chairman’s 

report, the total number of decisions made are reported, the number 

of allowed claims are reported, and the number of remanded claims 

are reported, and the number of denied claims are reported.

 One of the problems here is that if a veteran has multiple issues 

before him, and one of those claims is allowed but the rest are denied, 

in that situation typically the BVA only reports the allowed claim and 

not the denied claims. And this becomes a very serious problem.

 Finally, I would like to say the quality of decision-making at the 

Board is very problematic when viewed through the lens of how 

many cases are being remanded by the Court of Appeals for Veterans Claims. Over 65 to 70 percent of the cases that reach a merit 

determination at the Court of Appeals for Veterans Claims are being 

remanded due to a lot of the errors that we have already heard testimony about this morning.

 My final thought is that veterans should be allowed the choice to 

have an attorney represent them earlier in the process if they choose. 

Presently, veterans are prohibited from hiring and compensating an 

attorney until after the record is closed at the Board of Veterans’ 

Appeals, and only on appeal to the Court of Appeals for Veterans 

Claims.

 I would submit that Congress should seriously consider a statutory 

amendment to 38 USC 5904 to permit veterans the opportunity or 

the choice to hire an attorney at the initial stages of their claim.
25

 Thank you, and I will take any questions that you have.

 [The statement of Robert V. Chisholm appears on p. 57]

 Mr. Miller. Mr. Surratt, if you would please continue. And we are 

going to try and stay through the -- we have 17 to 20 minutes to get 

over to vote. So please continue.

STATEMENT OF RICK SURRATT

 Mr. Surratt. Thank you, Mr. Chairman.

 The best evidence of the importance of a fair and effective appeals 

process for veterans is the large number of VA decisions that are 

overturned on appeal. In fiscal year 2004, claimants initiated nearly 

109,000 new appeals.

 Experience has shown that approximately half of these appeals will 

be resolved by the VA office that made the decision being appealed 

without the necessity for review by VA’s Board of Veterans’ Appeals.

 Of the 38,371 cases in which there was a BVA decision last year, 

17.1 percent were allowed. Another 56.8 percent involved some processing omission that rendered the claims decision unsustainable, 

thereby requiring remand from the Board to the VA activity responsible for the original decision. Together, the allowed and remanded 

cases comprised 73.9 percent of the board’s total decisions in 2004.

 Again, based on experience, approximately 25 percent of the remanded cases, or 14 percent of the total cases reviewed by BVA, will 

be allowed on remand. Of the 75 percent of the remanded appeals 

that will be returned to the Board, approximately another 10 percent, 

or 4 percent of the total cases reviewed by BVA, will be allowed.

 Based on these percentages, we can project that somewhere in the 

neighborhood of 13,500 of the claimants whose cases were reviewed 

by the Board last year will eventually receive the benefits they would 

have otherwise been deprived of erroneously. That does not include 

close to half of the nearly 109,000 applicants whose claims will be 

favorably resolved without review by BVA.

 Those numbers demonstrate not only the necessity of the appeals 

process, but also that VA’s appeals process is fulfilling its purpose, to 

ensure veterans receive the benefits they are due.

 In any adjudication system, mistakes are inevitable. In an adjudication system as massive as VA’s, the claims wrongly decided will be 

relatively numerous under the best of circumstances.

 However, the unusually large percentage of appeal cases in which 

errors are found demonstrates serious problems in the initial decision-making process. In addition, repeated errors at the field office 

level result in multiple remands and multiple Board decisions in far 

too many cases.
26

 Erroneous or defective decisions result in several adverse consequences. Erroneous denials deprive large numbers of veterans the 

benefits they are rightly due, and delay the delivery of these benefits 

for protracted periods.

 Because erroneous denials necessitate multiple decisions, they add 

substantially to the workload at all levels of adjudication. Greater 

workloads require greater resources. If the increased workloads are 

not matched by increased resources, quality must yield to quantity, 

leading to even higher error rates and a vicious cycle of increasing inefficiency. Consequent claims backlogs delay the delivery of benefits 

for all claimants. Everyone suffers.

 And I am going to take just a moment to say that though there is 

room for improvement at BVA and the Appeals Management Center, 

their problems are secondary to the more critical problems in the initial decision-making process.

 To give you an example, VBA management has tolerated for years 

problems such as that at the New York City Regional Office where, on 

average, an appeal languishes for nearly five and a half years before 

the regional office transfers it to the Board for a decision; or Montgomery, Alabama, which had a 66 percent remand rate in 2004.

 Many of these appellants are elderly, or many of them are very seriously disabled, and they need the benefits in a more timely fashion 

than that.

 I want to address the issue of closing the record. It seriously concerns me when VA officials raise suggestions of that nature. First of 

all, you heard that the most frequent reason for a remand is an inadequate exam. And I think one of the VA officials said that the case 

has to go back to the RO if the veteran submits some new evidence. 

Well, that is not entirely true. The veteran can waive that right. And 

usually the case goes back to the AMC, not the RO.

 But VA has the option to get new evidence any time during the 

appeals process. It can get independent medical opinions. It goes 

to VHA for opinions. It can remand to the AMC to get an opinion. I

think it would be very unfair to close the record and not let the veteran enter new evidence.

 Beyond that, I think it would be very inefficient. If you have a decision before you, it would be more efficient to have every piece of evidence you can get up to the point that you start writing the decision 

to make the best decision you can make one time, rather than send it 

back and adjudicate the case piecemeal.

 Moreover, many times during the pendency of the appeal, more 

evidence comes in as it is being made -- veterans being rehospitalized and so forth. So if you had a veteran who appealed a denial of 

a claim and then was rehospitalized and opened another claim for 

an increase while the first one was on appeal and that was denied, 

you could have a second appeal. You could have multiple concurrent 
27

claims going at the same time.

 So I would have to say that we strongly oppose closing the record 

for fairness reasons and probably for efficiency reasons.

 And that concludes my statement, Mr. Chairman.

 [The statement of Rick Surratt appears on p. 63]

 Mr. Miller. Thank you very much. I have got some questions, but 

I am going to ask staff to submit them to you for the record and ask 

Ms. Berkley if she has any questions.

 Ms. Berkley. I do, and I know that it takes me a little bit longer 

to get to the floor than you. I want to thank you very much for that. 

What you are saying has truly been the experience that we have had 

in my congressional office back home, and seems like just a series of 

problems.

 But it seems to me that one of the big complaints is that when it 

is remanded back, often it is remanded back for records that the veteran has no control over. The VA has control of their medical records 

and has control of their service records as well, which needs to be part 

of the complete record.

 So it is not -- it is outside of the control of the veterans, and it gets 

remanded. So that is a very serious concern to me. A lot of the information that is needed, the veterans don’t have control of.

 But I would be very interested in having attorneys involved in 

the initial case rather than waiting. It seems to me that we would 

correct a lot of these problems if they had some legal help from the 

beginning. So I think that is something that we might want to look 

at, and I thank you very much. And I have additional questions, but 

no time to ask them.

 Mr. Miller. Thank you, Ms. Berkley. And the record may show 

that she doesn’t have time to ask them not because the Chairman 

wouldn’t let her ask them, but because we have a vote to go to.

 But as Mr. Surratt points out in his testimony, and I quote, ``Benefits for disabled veterans and their dependents and survivors are at 

the core of the program that the VA administers.’’ And I think that is 

an appropriate quote to be using today.

 We have to ensure that the claims adjudication process, beginning 

to end, serves our core constituency with timely and accurate rating 

decisions.

 We are very interested in your work. We look forward to working 

with you and the stakeholders to achieve that end. And with nothing more for the good of the order, we must adjourn this hearing and 

proceed to the floor for a vote.

 [Whereupon, at 11:47 a.m., the Subcommittee was adjourned.]
(28)

APPENDIX

Chairman Jeff Miller 

Opening Statement

Oversight Hearing of the Board of Veterans’ Appeals 

and the Appeals Management Center

May 5, 2005

 Good morning. The hearing will come to order. 

 Today we are receiving testimony on the policy and operational issues facing the 

Board of Veterans’ Appeals (BVA) and the Appeals Management Center (AMC). There 

are some serious backlog issues at the Board and the AMC, and I look forward to better 

understanding what the Department is doing, and intends to do, to make the appeals 

process more efficient for veterans and other beneficiaries. 

 When a claimant disagrees with a decision by a VA regional office or medical center, 

he or she has the right to appeal the decision. The number of appeals continues to 

increase, and unfortunately some claimants must wait several years before a final decision is made on a claim. One purpose of this hearing is to determine areas to shave 

off delays.

 Among the questions I hope to address today are: Is the system too procedurally 

cumbersome? Is additional staff going to solve the problem – as many of you are 

aware, this Committee recommended in its fiscal year 2006 Budget Views and Estimates an additional $6 million/50 FTEE for the Board – or is the backlog a symptom 

of claims filing behavior and therefore resistant to improvement efforts? 

 I am also interested in knowing how BVA and the AMC set performance goals and 

objectives, and how those goals are met. 

 I welcome all of our witnesses and look forward to their comments and suggestions 

for improving the accuracy and disposition times of appeals.
29

STATEMENT OF RON GARVIN,

ACTING CHAIRMAN, BOARD OF VETERANS’ APPEALS

BEFORE THE

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

COMMITTEE ON VETERANS’ AFFAIRS

U.S. HOUSE OF REPRESENTATIVES

May 5, 2005

 Good morning, Mr. Chairman. It is a pleasure to discuss the operations of the Board of Veterans’ Appeals with you, the members of the 

Subcommittee, and your staff.

 The Board’s testimony before the Subcommittee on Benefits in

February 1994 and June 1998 provides important background information. 

 In Fiscal Year 1994, the Board issued about 22,000 decisions. 

Our pending caseload stood at 47,000, and was on its way to 60,000. 

Our measure of timeliness then used—average response time—was 

781 days.

 By Fiscal Year 1998, our timeliness had markedly improved and

our pending caseload was down to less than 30,000 cases. We issued 

38,886 decisions, and held 4,875 hearings. Appeals resolution time—

the time from the date a veteran files a Notice of Disagreement until 

he or she receives a final decision on appeal—was 687 days.

 I am proud to report that, since 1998, we have constantly improved.

 In FY 2004, the Board issued 38,371 decisions, almost as many as

were issued in FY 1998, and conducted 7,259 hearings, a substantial 

increase from 1998. Appeals resolution time decreased to 529 days. 

Our cycle time—the time that it actually takes the Board to issue a 

decision (excluding the time the case is with the service organization 

representative)—was 98 days. Cases pending at the end of FY 2004 

stood at 21,430. Significantly, we accomplished these results with 

440 FTE, or 43 less than we had in 1998. 

 These improvements over the past few years occurred in spite

of several significant events, including the impact of the Veterans 

Claims Assistance Act of 2000, and the initiation and then termina-
30

tion of BVA evidence development due to the decision of the U.S. 

Court of Appeals for the Federal Circuit in Disabled American Veterans v. Principi.

 We have received much help in achieving our successes, including 

from: 

o The Congress providing unqualified support for the appellate 

rights of veterans and their families. 

o The veterans service organizations, who represent about 85% of 

our appellants. 

o VA leadership that supports improvements in the appeals process to ensure that veterans receive timely and quality decisions. 

o The staff at the Board, including the Veterans Law Judges, counsel, and administrative support staff. Through their efforts productivity increased, over historic levels, by 20% for staff counsel, and by 

25% for the VLJs. The number of hearings held also increased, with 

videoconference hearings nearly doubling since FY 1998. Finally, the 

average number of decisions per employee increased from 49.9 in FY

1994 and 80.5 in FY 1998, to 87.3 in FY 2004. 

Two of the most significant and persisting challenges we face are

o Eliminating avoidable remands, and

o Increasing productivity to contain and reduce the appeals backlog. 

In regard to remands, we know that: 

o Veterans want timely and correct decisions on claims for benefits. 

For the Board to do that, the record must contain all evidence necessary to decide the claim and show that all necessary due process has 

been provided. If the record does not meet these requirements, and 

the benefits sought cannot be granted, a remand for further development is necessary. 

o Remands lengthen appeals resolution time. One remand adds 

about a year to the process. Remands also divert resources from processing other claims and appeals. 

o We are working with VBA, OGC and VHA to identify and track 

root causes of remands, to provide training, and, ultimately, to elimi-
31

nate avoidable remands. The results are already encouraging, with 

the remand rate for the first part of FY 2005 dropping to 42.6%, as 

compared to 56.8% in FY 2004. For February and March 2005, the 

remand rate was even lower at 38.4%. 

 If nothing had been done, our backlog was projected to grow to 

unacceptable levels. The Board’s backlog disposition time—the projected time it would take the Board, working at its current rate, to 

eliminate the backlog—would have increased from 170 days in 2004, 

to 391 days in 2006, and to nearly 600 days in 2008.

Through incentives and sound management we have beat our past 

projections, and intend to continue doing so by way of: 

o Eliminating avoidable remands: About 75% of cases remanded are 

returned to the Board, which increases our workload and degrades 

timeliness. A 50% reduction in remands in FY 2005 could reduce appeals resolution time by as much as 25 to 30 days.

o Strengthening our intra-agency partnerships: Our joint training 

efforts with VBA, OGC, and VHA, will improve decision quality and 

reduce remands and appeals.

o Writing shorter and more concise decisions: We are training our 

Veterans Law Judges and counsel to write shorter and more concise 

decisions. 

o Utilizing employee incentive, mentoring and training programs: 

A number of new programs have been introduced to increase employee motivation and satisfaction, as well as to increase productivity and 

decision quality.

o Making use of overtime: We will use overtime within existing 

resources to enhance productivity.

o Increasing our use of paralegals: We will increase the use of our 

paralegals for non-decisional support activities. 

 We believe these measures will work to reduce the backlog and 

shorten the time it takes for a veteran to receive a well-reasoned 

Board decision. Already, we have reduced the time it takes for an 

appeal to be finally resolved from 686 days in FY 1998, to 529 days in 

FY 2004. Our decision quality has improved from 88.8% in FY 1998 

to 93% in FY 2004, and our cycle time is a little over three months. 

In conclusion, we intend to continue working to develop new and cre-
32

ative solutions to the challenges we face in order to fulfill our statutory mission to hold hearings and provide timely, high quality decisions to our Nation’s veterans and their families. 

 I would be pleased to answer any questions you or your colleagues 

might have.
33

Statement of Michael Walcoff

Associate Deputy Under Secretary for Field Operations

Veterans Benefits Administration

Before the Committee on Veterans’ Affairs

Subcommittee on Disability Assistance and Memorial Affairs

United States House of Representatives

May 5, 2005

Chairman Miller and Members of the Subcommittee.

Thank you for providing me the opportunity to appear before you 

today to discuss the Department of Veterans Affairs’ (VA) Appeals 

Management Center (AMC) operations. 

My statement today is divided into two parts. I will begin, as you 

have requested, by discussing VBA’s AMC operation. Then I will 

briefly discuss the Joint BVA/VBA Remand Reduction Project.

Appeals Management Center

The Appeals Management Center (AMC) was created in July 2003 

following a Federal Circuit Court decision that invalidated part of 

VA’s process for handling cases appealed to the Board of Veterans’ 

Appeals (BVA). Prior to that court decision and the establishment of 

the AMC, BVA had created a development unit to itself develop cases 

on appeal that needed more development, instead of remanding those 

cases to the regional offices of jurisdiction to conduct the necessary 

development. The BVA unit had, in effect, assumed partial responsibility for case development previously assigned to VBA’s regional 

offices. As a result of the Court’s decision, the BVA generally may 

not consider in the first instance any evidence it develops, so the BVA 

resumed remanding cases that needed more development, and that 

responsibility was returned to VBA and assigned to the AMC. VBA

determined that the best way to manage remand processing was to 

consolidate the responsibility to a single Appeals Management Center where resources and expertise could be concentrated. 

The mission of the AMC is to process remands timely and consistently. The AMC has complete authority to develop remands, reach 

decisions based on additional evidence gathered, and authorize the 

payment of benefits. If the AMC is unable to grant an appeal in full, 

the appeal is recertified to BVA for continuation of the appellate process.

Beginning in July 2003, the AMC began receiving work from BVA. 

Though not fully staffed until January 2004, the AMC began intake, 

organization, and limited development on remands. In February 

2004, the AMC was fully operational and established a goal of com-
34

pleting initial development of all pending remands by spring 2004. 

This goal was met in June 2004.

The initial work coming to the AMC consisted of two types of cases. 

The first category of cases consisted of the remands generated by 

BVA after July 2003. VBA had projected the volume of this workload 

to be 13,000 remands per year. Based on this projection, the AMC 

was staffed with 87 employees. 

In the second category of cases were those that had been pending 

development actions at BVA at the time of the circuit court decision. 

There were 9,000 cases in this category for which BVA no longer had 

legal authority to initially consider any evidence it developed. These 

cases were converted by BVA to remands between July 2003 and 

January 2004 and transferred to AMC jurisdiction. Because of the 

one-time nature of this influx of 9,000 additional remands, a strategy 

was developed to increase resources on a temporary basis to assist 

the AMC with claims decisions. As a result, 46 additional employees 

were temporarily assigned to accomplish AMC work beginning in October 2004. These employees are located at VBA’s resource centers in 

St. Petersburg, Huntington, and Cleveland. 

During its first year of operation, the AMC received approximately 

18,000 remands in addition to the 9,000 converted cases. This exceeded the 13,000 remands that had been estimated. Because of this 

greater than expected volume, VBA and BVA began aggressive joint 

initiatives to address the root causes of remands. These initiatives 

focused on increased coordination of data collection, identification of 

trends, and training. 

These joint efforts are proving successful. The remand rate for FY 05 

is 43% as of the end of March. This compares with the FY 04 remand 

rate of 56.8%. For the month of March 2005, the remand rate was 

37%. Our goal is to reduce the remand rate to 30% by the end of FY

06. 

The AMC is organized much like the Veterans Service Centers in VA

regional offices. The AMC consists of one Triage Team, three Development Teams, one Rating Team, and one Authorization Team. The 

AMC provides public contact functions through a dedicated toll-free 

number unique to the AMC and has normal office hours for walk-in 

traffic. The AMC also provides full support for Freedom of Information Act, Privacy Act, and congressional inquiries. 

Executive direction at the AMC is provided by a director and two assistant directors. One assistant director is responsible for the development of remands and the other is responsible for decisions made on 

the remands. The AMC’s workforce is specifically trained and skilled 

in processing remanded claims. Organizationally, the AMC reports 
35

to the Associate Deputy Under Secretary for Field Operations.

The AMC receives all remanded claims directly from BVA. All new 

remands are delivered to the AMC daily. A small number of remands 

are unable to be worked in the AMC for various procedural reasons 

and are returned to the regional office of jurisdiction. For example, 

if a remanded claim requires a local hearing, the AMC would be unable to comply with the remand order; therefore, the remand must 

be worked locally. Additionally, if a remand involves an issue not related to compensation and pension benefits, the remand is forwarded 

to the regional office of original jurisdiction. 

Development of remands is initiated within 15 days of receipt at the 

AMC. A letter is sent to the appellant that explains how to contact 

the AMC, what the appellant can expect during the processing of the 

remand, and what is required of the appellant and the AMC. 

Development is completed in strict compliance with the wording of 

the remand order. This often requires that steps in the remand order 

be completed sequentially and that a VA exam, including a medical 

opinion by a VA physician, be conducted. Once all development steps 

are completed, the claims file is forwarded to the Rating Team for a 

decision. If any part of the remand is granted, a decision is prepared. 

If any part of the remand continues to be denied, a supplemental 

statement of the case is prepared. Often, both documents are required. 

Once a decision is made, accredited representatives (i.e., veteran service officers) are allowed the opportunity to review the unpromulgated decision. Following review by the representative, the file is 

forwarded to the Authorization Team, which processes the award and 

notifies the appellant. If a full grant of benefits is possible, the award 

action is completed, payment authorized, notification sent, and the 

completed file returned to the regional office of jurisdiction. If the appeal is not granted in full, the appeal is recertified to BVA. No claims 

files reside permanently at the AMC.

The AMC is reducing the number of pending remands. Since October 2004, the AMC inventory of pending remands has been reduced 

from 24,000 to 21,000. The goal is to reduce the pending inventory to 

18,000 by the end of FY 05. The goal for FY 06 is to reduce the pending inventory to 12,000. Once these goals are met, the additional 

resources assigned to the AMC will be redirected to compensation 

claims at VBA’s regional offices.

The AMC has enabled VBA to significantly improve the time it takes 
36

to complete a remand. During FY 03, regional offices took an average of 700 days to complete a remand. Currently, it takes the AMC 

an average of 400 days to complete a remand. We continue to strive 

for further improvement. A strategic goal of 230 days on average 

to complete a remand has been established. The goal of 230 days 

represents the minimum time needed to complete a remand given 

the notification, evidence collection, and follow-up requirements of 

the Veterans Claims Assistance Act of 2000 (VCAA) and other legal 

requirements.

VBA does not require additional resources to reduce the number of 

remands pending. The high number and average age of pending remands are more closely related to procedures and due process requirements than to a lack of available resources. Remands are unique in 

that they often require sequential development steps, with requisite 

waiting periods between each step. Often remand instructions require that VBA contact the claimant to request identification of any 

outstanding evidence, obtain a medical release, or complete other development requirements, and our procedures provide the claimant 

with a 60-day timeframe to provide a response to such requests. Together with the waiting time our procedures require for third-party 

evidence, the appeals resolution process is necessarily prolonged to 

ensure that all necessary evidence is obtained and considered. 

In addition, to ensure that VA has exhausted its efforts to obtain all 

federal records and made all reasonable efforts to obtain non-federal 

records, remand instructions sometimes require VBA to repeat prior 

efforts to assist the veteran obtain medical treatment records or other evidence that was generated many years ago. The custodians of 

these records are often very difficult to locate. In the case of federal 

records, the law requires that VA’s efforts to secure these records, 

such as Social Security Administration records, continue until VA is 

reasonably certain that the records do not exist, or that further attempts to obtain these records would be futile. 

Finally, remand orders often require VBA to obtain complex medical 

opinions from medical specialists that may not be readily available 

at all VA medical centers or in smaller cities, further increasing processing time.

Joint BVA/VBA Remand Reduction Project

In July 2004, the Deputy Secretary requested that VBA and the 

Board of Veterans’ Appeals (BVA) accomplish three tasks:

• Agree upon a reliable process for capturing information prospectively on reasons for remands,

• Conduct a retrospective analysis of a representative sample 
37

of remands to validate the agreed-upon tool, and

• Develop a plan for remedying the problem of avoidable remands.

A VBA/BVA team developed a new protocol to record reasons for remands. The protocol, in use since November 2004, distinguishes between remands due to VBA error, remands based on BVA’s authority 

to develop evidence in the absence of a VBA error, and unavoidable 

remands, such as those resulting from changes in law. 

On November 8, VBA/BVA submitted a report to the Deputy Secretary containing its planned remedial measures. VBA agreed to 

change claims procedures to more thoroughly document the record 

when attempts to secure federal records (e.g., Social Security records) 

failed, or attempts to verify PTSD stressors failed. VBA also agreed 

to conduct additional field training.

A broadcast on the importance of reducing remands was held in February 2005 with participation from the Deputy Secretary and BVA

and VBA leadership. Additional broadcasts were held on other subjects that would result in reduced remands, including preparation of 

medical examination requests.

A computer-based training module on certifying a case to BVA was 

developed and sent to all VBA regional offices. Completion of the 

training module is mandatory for all Rating Veterans Service Representatives and Decision Review Officers on the Appeals Team. 

Lastly, VBA has established a mailbox for questions on remands from 

the field. An intranet site was also created with a management reports function allowing a regional office to review its remand errors.

The review and monitoring of remand data are on-going efforts. 

Analysis of the remand data allows VBA to determine the impact 

of current improvement efforts, as well as to identify future trends 

and develop and implement countermeasures to ensure avoidable remands are eliminated to the greatest extent possible. We anticipate 

that future efforts will include additional training, quality reviews, 

and regulatory changes, as appropriate.

Conclusion

 In summary, VBA has increased its focus on the appellate 

workload over the past several years. Through our actions and actions taken in collaboration with BVA, we have implemented measures to reduce the number of remands and improve the timeliness of 

appeals processing. We believe we are moving in the right direction, 
38

and continuing efforts will allow us to significantly improve the appeals process for veterans. 

Mr. Chairman, this concludes my statement. I will be happy to respond to any questions that you or other members of the Subcommittee might have.
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57

STATEMENT OF

 ROBERT VINCENT CHISHOLM

 PAST PRESIDENT OF THE

NATIONAL ORGANIZATION OF

VETERANS ADVOCATES

BEFORE THE

 SUBCOMMITTEE ON DISABILITY ASSISTANCE AND

MEMORIAL AFFAIRS

VETERANS’ AFFAIRS COMMITTEE

UNITED STATES HOUSE OF REPRESENTATIVES

MAY 5, 2005

 MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

 Thank you for the opportunity to present the views of the National Organization of Veterans’ Advocates (“NOVA”) on the operations of both the Board of Veterans’ Appeals and the Appeals Management Center. NOVA is a not-for-profit educational organization 

created under 26 U.S.C. § 501(c)(3) for attorneys and non-attorney 

practitioners who represent veterans, surviving spouses, and dependents, before the Court of Appeals for Veterans Claims (“CAVC”) and 

on remand before Department of Veterans Affairs (“VA”). NOVA has 

written many amicus briefs on behalf of claimants before the CAVC 

and the United States Court of Appeals for the Federal Circuit (“Federal Circuit”). The CAVC recognized NOVA’s work on behalf of veterans when it awarded the Hart T. Mankin Distinguished Service 

Award to NOVA in 2000. The positions stated in this testimony have 

been approved by NOVA’s board of directors and represent the shared 

experiences of NOVA’s members.

 For the past fourteen years I have been representing claimants at all stages of the veteran’s benefits system from the VA regional office to the Board of Veterans’ Appeals to the CAVC as well as 

before the Federal Circuit. 

A claimant who files a new claim for benefits that is denied 

by the VA usually faces a three to five year horizon before he or she 

receives a final decision from the Board of Veterans’ Appeals. If that 

same claimant then appeals the case to the Court of Appeals for Veterans Claims, it may take another twelve to eighteen months for the 

Court to render a final decision. When the Court acts in the claimant’s favor, it will most likely result in a remand back to the Board 

of Veterans’ Appeals. See Swiney v. Gober, 14 Vet. App. 65 (2000) 

(wherein the CAVC acknowledged “outright reversal on the merits 

has been very rare” and remands are the norm). The remand from 

the CAVC provides the claimant with the opportunity to submit additional evidence and arguments in favor of the claim at issue, and it 

preserves the claimant’s favorable effective date if there is an award 
58

of benefits. The problem, however, is that many claimants do not 

survive the protracted adjudicatory process. Those claimants who do 

survive are subjected to interminable delays before the VA.

 Remanded claims and Board Docketing of Appeals.

I would first like to direct my testimony to the issue of claims 

remanded from the Court to the Board of Veterans’ Appeals. A “remand” is simply an order sending the case back down the ladder to 

be done over again. It is upon return from the Court to the Board of 

Veterans’ Appeals that delays in adjudication are exacerbated. 

In 1994, Congress enacted the Veterans Benefits Improvement Act. Section 302 of the Act, Pub.L. No. 103-446, § 302, 108 Stat. 

4645, 4658 (1994), which provided for expeditious treatment of veterans claims that were remanded from the Court of Appeals for Veterans Claims back to the Board of Veterans’ Appeals. In addition, the 

Act requires claims remanded from the Board to the VA regional offices to receive expeditious treatment. The statute specifically mandates that “[t]he Secretary of Veterans Affairs shall take such actions 

as may be necessary to provide for the expeditious treatment, by the 

Board of Veterans’ Appeals and by the VA regional offices of the Veterans Benefits Administration, of any claim that has been remanded 

by the Board of Veterans’ Appeals or by the United States Court of 

Veterans Appeals for additional development or other appropriate 

action.” This act was codified in 2003 by Pub. L. 108-183, Title VII, 

§ 707(a)(1), 117 Stat. 2672.) at 38 U.S.C. § 5109B. It provides that 

“[t]he Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the appropriate VA regional 

office of the Veterans Benefits Administration of any claim that is 

remanded to a regional office of the Veterans Benefits Administration by the Board of Veterans’ Appeals.” In addition, Pub. L. 108-183, 

Title VII, § 707(a)(1), 117 Stat. 2672) codified the VBIA at 38 U.S.C. 

§ 7112 which provides that the Secretary shall take such actions as 

may be necessary to provide for the expeditious treatment by the 

Board of any claim that is remanded to the Secretary by the Court of 

Appeals for Veterans Claims.

 The intent behind the VBIA 1994 and the subsequent statutory codification is clear: Congress wants those claimants who have 

been unable to get a final decision from the Board to thereafter receive expeditious treatment whether on remand from the CAVC or 

on remand from the Board to the VA regional offices. The problem, 

however, is the Board has failed to execute the will of Congress. 

 Docketing of Cases by the Board of Veterans’ Appeals

 The Board’s failure to implement the intent of Congress regarding expeditious treatment of remanded cases is exemplified in 

the Board’s docketing procedure for remanded claims. The Secretary 

has promulgated certain regulations to govern the order in which ap-
59

peals to the Board are decided. Generally speaking, the Board decides appeals in the order in which they are received from the VA

regional offices. 38 C.F.R. § 20.900(a). Therefore, if a claim has a 

2003 docket number it is supposed to be decided before a case with a 

2004 docket number and so on. Remanded claims that are returned 

to the Board assume their original place on the docket. 38 C.F.R. § 

20.900(a). If a case with a 1999 Board docket number is remanded to 

the VA regional office and then returns to the Board in March 2005, it 

should retain the 1999 docket number, not a new 2005 Board docket 

number. 

Finally, the Board has a specific regulation issued in response 

to the requirement to provide expeditious treatment to remanded 

claims from the Court. That regulation provides:“A case remanded 

by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s 

docket.” 38 C.F.R. § 20.900(d).

 Delay— Not Expeditious Treatment— Is the Norm

 Typically, veterans face years of delay instead of receiving 

the expeditious treatment required by Congress. Delay occurs at two 

critical junctures:

(1) When a case is remanded from the Court to the Board, 

and 

(2) When the Board remands a case back to the VA regional office and the denial is sustained by the VA regional office. 

In this latter situation, the matter is supposed to retain its earlier 

Board docket number but most cases are assigned new docket numbers.

As noted above, the first significant time delay occurs when 

the cases are remanded from the CAVC to the Board of Veterans’ 

Appeals. When a case is remanded from the Court to the Board, the 

Board is required to send a letter to the claimant and the representative of record to provide them with 90 days to submit additional 

evidence. Once that letter is responded to by the claimant or the 

representative, the Board is required to render a new decision. In my 

experience, claimants are waiting up to a year for a new decision.

 The second situation, when the Board remands a case back 

to the VA regional office, causes far more grievous delay, especially 

where the VA regional office grants a part of the claim, but then commits error by denying less than the full relief required by law. In that 

situation, Congress requires that the Board expeditiously review the 

regional office decision, but often it does not. 

 For example, assume that in 1996, a Persian Gulf War veteran filed a claim for service connection of post traumatic stress disorder (PTSD), which the VA regional office finally denied in 1999. The 

veteran appeals to the Board of Veterans’ Appeals where the case is 
60

given a 1999 docket number. The Board issues a remand decision in 

2004 because the VA regional office failed to obtain a medical opinion on issues necessary to decide the veteran’s claim. Based on the 

newly obtained medical opinion, the VA regional office finally decides 

that the Gulf War veteran is entitled to disability compensation for 

his PTSD, but the VA regional office assigns a rating of only 50%, 

and awards benefits as of the date the VA obtained the medical opinion— even though the veteran’s PTSD has prevented him from working since his claim was filed in 1996. Under those circumstances, 

the law requires the VA to rate the veteran as 100% disabled and to 

pay him benefits at the 100% rate, starting in 1996 when he filed his 

claim. 

Unfortunately, the VA regional office grants some relief, but 

less than what the law requires, and less than what the veteran is 

entitled to and needs because of his disability. The veteran’s only 

remedy is to appeal, again, to the Board of Veterans’ Appeals, and 

ask the Board, again, to correct the VA regional office’s mistake and 

assign a higher rating and an earlier effective date. 

 Here lies the problem: Getting the case back before the Board 

can take another three to five years, because the Board has no protocol to require docketing personnel to retain the earlier and clearly 

more advantageous docket number. Instead, the docketing personnel 

usually assign a new docket number. In the case of our hypothetical Gulf War veteran, then, his 2005 appeal to the Board would be 

assigned a 2005 docket number, rather than retaining his original 

1999 docket number. This means that instead of having his case 

set for immediate Board review, he is sent to the back of the line for 

another three to five year wait, on a claim that was first filed in 1996 

- nine years ago already. The additional delay of three to five years is 

caused by the Board assigning a new docket number to the veteran’s 

claim, instead of retaining the earlier, original docket number. 

 If the claimant is not helped by a sophisticated representative, the claimant will not even know that he was entitled to faster 

consideration. In order to assure that the Board is complying with its 

own docketing procedures for remanded claims, I as well as other attorneys, have found it a necessary practice to file petitions for writs of 

mandamus with the Court of Appeals for Veterans Claims. E.g., Dailey v. Principi, 17 Vet. App. 61 (2003); Vargas-Gonzalez v. Principi, 

15 Vet. App. 222 (2001). In over 75% of my cases that are returned 

to the Board of Veterans’ Appeals after remand, I must send a letter to the Board because the case was assigned a new Board docket 

number instead of the original one. The process should be automatic, 

but it is not. Once again, a claimant who does not have the help of a 

sophisticated representative will never know what happened.

 The Board’s Statistical Tabulations.

 I would also like to comment on NOVA’s concern about the 
61

methodology used by the Board to generate its statistics for its annual reports. In order for Congress to understand the operations of 

the Board and the Appeals Management Center, an accurate representation of what happens at the Board is necessary. 

 Every year the Board of Veterans Appeals in its annual report 

provides the following information: (1) the total number of decisions 

made; (2) the number of allowed claims; (3) the number of remanded 

claims and (4) the number of denied claims. The following data is 

from the Board annual report:

 Fiscal Year Number of Board Decisions Allowed Remanded Denied

 2004 38,371 17.1% 56.8% 24.2%

 2003 31,397 22.1% 42.6% 32.6%

 The data in the Board’s Annual Report is misleading in the 

following way. Many claimants’ claims have multiple issues. By way 

of example, a single claimant could have claims for PTSD, hearing 

loss, tinnitus and Agent Orange-related illnesses. If the Board grants 

the claimant a 10% rating for hearing loss and denies the claims for 

PTSD, tinnitus and Agent Orange, the Board considers that an “allowed” claim for the purposes of its annual report. The Board simply 

fails to report in its annual report that it has denied the remaining 

three issues, each of which is an appealable claim to Court. Thus, the 

Board fails to report the total number of actual claims denied.

Quality of Decision Making at the Board

 In order to truly assess the quality of Board decision making, 

one needs to examine what is happening to the cases appealed from 

the Board to the Court. The CAVC in its annual report provides data 

regarding the total number of cases filed and the dispositions of those 

cases. 

 Fiscal Year Merits Decisions Percentage Remanded

 2000 1619 63%

 2001 2853 96%

 2002 972 72%

 2003 2152 91%

 2004 1337 83%

The data is from the following website address: http://www.vetapp.

gov/AboutCourt/Annual%20Reports.pdf .

 This evidence is indicative of a lack of quality decision making at the Board. A claimant who is denied benefits has a much better than even chance of getting a remand from the Court due to errors 

committed by the Board.

 The Need for Legal Representation Before the Board

A final thought regarding the operation of the Board specifically and the adjudication of claims generally. Presently, claimants 
62

do not have the choice to hire and compensate an attorney until after 

the Board issues the first final decision on the case. 38 U.S.C. §§ 5904 

and 5905. As my testimony demonstrates, obtaining a “first final 

decision” from the Board is a lengthy and unnecessarily protracted 

process. Consequently, under the current statutory scheme, a claimant’s first opportunity to compensated counsel occurs only after the 

first final decision of the Board. As a result, a claimant’s right to the 

compensated assistance of counsel occurs after the evidentiary record 

is closed. 

 The right of a claimant to hire counsel is further limited by 

the requirement that the claimants retain the attorney within one 

year of the final Board decision. 38 U.S.C. § 5904(c)(1). As a practical matter, however, if the attorney is not hired within 120 days of 

the final Board decision, the right to appeal the Board decision to the 

CAVC is extinguished. In order to preserve the claimant’s right to 

judicial review, the claimant must appeal the Board decision within 

120 days of the Board decision. 38 U.S.C § 7266(a). Further, if a 

claimant does not hire counsel within one year, then any further efforts involving the same claim or claims prohibit the compensation of 

an attorney until after another final decision of the Board of Veterans’ Appeals. As noted above, the Board routinely commits errors in 

its decisions and if the claimant does not appeal that case to Court, 

the matter ends. 

 On behalf of NOVA, I would like to thank the subcommittee 

for the opportunity to present this testimony. Oversight of the VA adjudication process is critical and necessary to ensure that the intent 

of Congress to compensate veterans and their families for all benefits 

which can be supported in law is not thwarted. NOVA believes that 

the most effective means of ensuring that the VA provides all benefits 

which can be supported in law, is to permit all claimants the right to 

hire an attorney at the initial claims process. The current system 

merely reinforces the adjudicatory errors of the VA and compounds 

needless delay of these claims. NOVA submits that an amendment 

to 38 U.S.C. §§ 5904 and 5905 to permit legal representation at the 

initial claim level is necessary. 
63

STATEMENT OF

RICK SURRATT

DEPUTY NATIONAL LEGISLATIVE DIRECTOR

OF THE

DISABLED AMERICAN VETERANS

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

MAY 5, 2005

Mr. Chairman and Members of the Subcommittee:

I am pleased to appear before you on behalf of the Disabled American 

Veterans (DAV) and its Auxiliary to present our organization’s views 

on the functioning and performance of the appellate operations of the 

United States Department of Veterans Affairs (VA), as carried out by 

its Board of Veterans’ Appeals (BVA or Board) and Appeals Management Center (AMC). Made up of service-connected disabled veterans, 

the DAV is an organization whose members, and family members in 

the Auxiliary, have a special interest in the subject of today’s oversight hearing. Incidental to our close interaction with VA, we also 

conduct ongoing monitoring of its performance and thereby endeavor 

to be a partner in your oversight role.

Benefits for disabled veterans and their dependents and survivors 

are at the core of the programs VA administers. The effective administration of programs, including appellate review of claims decisions, 

is essential to the fulfillment of VA’s momentous mission to care for 

our Nation’s veterans. Approximately 95 percent of BVA’s workload 

involves disability compensation and pension claims. Your oversight 

to ensure VA is faithfully executing and properly implementing the 

law and effectively managing the programs Congress created for veterans is necessary to guarantee veterans receive the benefits to which 

they are entitled by law and to impose the accountability for results 

and efficiency that our citizens rightfully demand. Your vigilant 

oversight of performance, your watchfulness of execution of the laws, 

creates an incentive for better performance by VA. 

 Our laws, like the human relationships they regulate, are often complex and ever evolving. The laws that govern veterans’ rights 

and benefits are no different. These laws can be quite complicated, 

especially where they deal with cause-and-effect relationships between service in the Armed Forces and diseases and injuries, and 

the quantification of disability from those diseases and injuries for 

compensation purposes. Thus, in veterans’ benefits, as it is gener-
64

ally, law is not an exact science. Because of the variables of human 

interactions and the consequent nuances inherent in the factual 

bases on which legal rights rest, adjudications require the intervention of human judgment. Such judgment is, of course, not infallible. 

Under our legal system, we therefore view the right to appeal as an 

important element of fairness and necessary to safeguard against injustices that result from human error. Because appellate review is 

so essential to ensuring justice in an unavoidably imperfect adjudication system, the proper functioning of appellate processes is of major 

importance, especially where the rights and benefits of our veterans 

are involved.

 As a statutory board, BVA was created in recognition of the 

importance of an effective appellate body within the VA administrative process and after experiments with other variations of appellate 

review had proven unsatisfactory. By consolidating and centralizing 

the appellate board in Washington, D.C., under the authority of the 

agency head, then the Administrator of VA, the problems of decentralization, lack of uniformity, and the lack of finality were addressed 

through a clearer sense of direction. By Executive Order issued July 

28, 1933, President Franklin D. Roosevelt established BVA, and that 

Executive Order was promulgated as Veterans Regulation No. 2(a), 

which later became law through operation of statutory provision. 

By Veterans Regulation No 2(a), the President mandated that BVA

would sit at VA’s Central Office, be directly under the Administrator, provide one review on appeal to the Administrator, afford “every 

opportunity” for a “full and free consideration and determination,” 

provide “every possible assistance” to appellants, have final authority, and take final action that would be “fair to the veteran as well as 

the Government.” Since its inception, BVA has operated separate 

and independent from the other elements of VA. While there have 

been some changes in its configuration since 1933, BVA has retained 

its basic concept and mission.

As it exists today, BVA’s mission is still to make the final 

decision on behalf of the VA Secretary in claims for benefits. Section 7104 of title 38, United States Code, provides: “All questions in 

a matter which . . . is subject to a decision by the Secretary shall be 

subject to one review on appeal to the Secretary. Final decisions on 

such appeals shall be made by the Board.” The Board operates under 

various statutory provisions codified at chapter 71 of title 38, United 

States Code, as well as regulations in part 19 and rules of practice in 

part 20 of title 38, Code of Federal Regulations. 

Although BVA generally makes the final decision in an appeal, the appellate process begins with the VA field office that made 
65

the decision appealed, referred to as the agency of original jurisdiction, and, in some instances, action by the agency of original jurisdiction in an appealed case alleviates the need for a final decision by 

BVA. An appeal may be favorably resolved by the agency of original 

jurisdiction before the case is transferred to BVA or after the case has 

been sent back, “remanded,” to the agency of original jurisdiction to 

cure some procedural omission or record defect. Up to 50 percent of 

the appealed cases are resolved by the agencies of original jurisdiction and never reach the Board. However, about 75 percent of the 

remanded cases are returned to the Board for a final decision.

A veteran or other claimant initiates an appeal by filing a “notice of 

disagreement” with the agency of original jurisdiction. The agency 

of original jurisdiction may then take such additional development 

or review action as it deems proper. If such action does not resolve 

the disagreement, the agency of original jurisdiction issues to the 

appellant a “statement of the case” that contains a summary of the 

pertinent evidence, a citation of the pertinent legal authorities along 

with an explanation of their effect, and an explanation of the reasons 

for the decision on each issue. To complete, or “perfect,” the appeal, 

the appellant must then file with the agency of original jurisdiction 

a “substantive appeal,” a written statement specifying the benefit or 

benefits sought and the bases of the appellant’s belief that he or she 

is legally entitled to the benefit or benefits. Upon receipt of the substantive appeal, VA enters the case on the BVA docket. The BVA

docket is a list of cases perfected for appellate review compiled by 

the chronological order in which the substantive appeal was received. 

The Board receives these cases for review by their order on the docket, although a case may be advanced on the docket for demonstrated 

hardship or other good cause. The Board must afford each appellant 

an opportunity for a hearing before deciding his or her appeal. The 

hearing may be held before the BVA at its principal office or at a VA 

facility located within the area served by appellant’s VA regional office. The Board may enter a decision that orders the granting of appropriate relief, denying relief, or remanding the appeal for further 

action by the agency of original jurisdiction. 

 The Board may reconsider its decision upon an order by its 

chairman on the chairman’s initiative or upon a motion by the claimant, and the Board may correct an obvious error in the record without 

regard to an order for reconsideration. The Board is also empowered 

to revise its decision on grounds of clear and unmistakable error. The 

Board may undertake review on grounds of clear and unmistakable 

error on the Board’s own initiative or at the request of the claimant. 

Claimants for veterans’ benefits who believe BVA made fac-
66

tual or legal errors in deciding their claims may appeal to the United 

States Court of Appeals for Veterans Claims (CAVC or Court). The 

Court may affirm or reverse the BVA decision, or remand for further 

action. The landmark legislation enacted in 1988 that subjected BVA

decisions to the scrutiny of an independent court has necessitated 

positive reforms in BVA decision-making. Because the Board’s decisions must be justified with an explanation of the factual findings 

and legal conclusions and because VA must defend its decisions in 

court, denials that go against the weight of the evidence or law have 

declined. The Board allows and remands substantially higher percentages of appeals than it did before judicial review.

 During 2004, 2,234 claimants appealed to CAVC. The Court 

decided 1,780 cases, with an average processing time from filing of 

the appeal to disposition of 392 days. Of that total, 1,087 cases, or 

61 percent, were either reversed/vacated and remanded or remanded 

because of some substantive error or procedural defect. This reflects 

a high error rate among those BVA decisions appealed to the Court. 

 The DAV’s judicial appeals representatives complain that 

the Board, with increasing frequency, is deviating from the Court’s 

orders reversing and/or remanding cases with specific instructions. 

The Board’s failure to adhere to the Court’s orders is blatantly unlawful. The Board’s defiance of the Court’s mandates breaks down the 

order and discipline imperative in appellate systems where inferior 

tribunals are legally bound to adhere to the orders of superior tribunals.

During fiscal year (FY) 2004, 108,931 new notices of disagreement were received by VA, 49,638 appeals were perfected and added 

to BVA’s docket, 39,956 cases were physically transferred from agencies of original jurisdiction to BVA, and the Board decided 38,371 

cases. The Board began FY 2004 with 27,230 cases pending before 

it and ended the year with 28,815 cases pending. Accordingly, the 

number of new appeals added to the Board’s docket during the year 

exceeded the number of cases it decided by 11,267, and the number 

of new appeals added to the Board’s docket exceeded the number of 

cases transferred to the Board for a decision by 9,682. The Board 

decided 1,585 fewer cases than it received from field offices. 

At the end of FY 2004, there were more than 161,000 cases in field 

offices in various stages of the appellate process, including the 31,645 

on remand. Some of these appeals will be resolved at the field office 

level, but about three-quarters of them will come before the Board. At 

the end of March 2005, there were 51,508 cases on the BVA docket. 
67

 During FY 2004, the average time for resolving an appeal, 

from the filing of the notice of disagreement to the date of the decision was 960 days. Of this total, 734.2 days was the average time an 

appeal was pending in the field office, from the notice of disagreement 

to the transfer of the case to BVA, with an average of 225.6 days from 

the date of receipt of the case at BVA to the date of the decision. During FY 2004, the average number of days an appeal was pending in 

the New York City VA regional office before being transferred to BVA 

was 1,978.7 days, with 1,707.5 of those days representing the time 

after the appeal was perfected and the case was ready for transfer. 

For a New York case, the average total processing time for an appeal 

during FY 2004 was 2,136.7 days, almost 6 years. Nine VA regional 

offices exceeded 1,000 days for the average time an appeal was pending at the field office. As of March 31, 2005, the average total days 

for cases pending in the field was 832.8 days and the average time at 

BVA was 202.2 days. Of course, for those cases remanded, the total 

processing time is considerably longer. In FY 2004, an additional 

155.6 days were added to the total processing time of appeals for the 

time the case spent at BVA the second time following the remand, 

and this does not include the number of days the case was on remand 

at the field office. During FY 2004, 7,140 cases were returned to 

the Board following remands. The remands took an average of 22 

months. As noted, there were 31,645 cases on remand at the end of 

2004. Of the 38,371 cases decided by BVA in FY 2004, approximately 

21 percent had been previously remanded. With these long processing times, far too many disabled veterans die before their appeals can 

be decided. Three obvious conclusions follow from these numbers: (1) 

most of the delay in these unreasonably protracted appeals processing times is at the field office level, (2) far too many cases must be remanded more than once, and (3) multiple remands add substantially 

to the workload of BVA.

 The Board allowed 17.1 percent of the cases it decided during 

FY 2004. Approximately 24 percent of those allowed cases had been 

previously remanded. The Board remanded 56.8 percent of the cases 

it reviewed during FY 2004. Of those remanded cases, 18 percent 

had been remanded previously, suggesting that the field office did not 

fulfill the Board’s instructions in the remand order. Together, the allowed and remanded cases represented 73.9 percent of the Board’s total case dispositions in 2004. Denials amounted to only 24.2 percent 

of the total dispositions. In addition to noting the high percentage of 

cases remanded multiple times, three conclusions can be drawn from 

these percentages: within these appealed cases, (1) agencies of original jurisdiction have denied many meritorious claims, (2) agencies of 

original jurisdiction have denied many cases without proper record 

development, and (3) only a relatively small percentage of these ap-
68

pellants had unwarranted appeals. 

Because of the large volume of appeals, the BVA is experiencing some shortage of storage space for claims files. The Board is in 

the beginning stages of a planned move to more suitable office space, 

which will include more storage space. Under the timetable in the 

plan, BVA will relocate in FY 2007.

 Since the expiration of the former Board Chairman’s term in 

October 2004, the Board has been without a chairman. Strong leadership and clear direction is needed at this level to ensure the Board 

maintains its independence from other elements of VA. 

Additionally, the Board has suffered reductions in its staffing 

levels in the past few years. Despite increasing workloads, the President’s FY 2006 budget again calls for a further decrease in staffing 

from 440 fulltime employees (FTE) to 434 FTE. This would be down 

from 455 FTE in FY 2001. If future backlogs and delays in appellate 

processing are to be avoided, BVA must have the additional resources 

necessary to meet this increasing workload.

 In August 2001, VA proposed to amend the Board’s regulations to enable the Board to perform record development itself and 

make a decision on that evidence rather than remand the case to the 

agency of original jurisdiction for these purposes. For several reasons related to unfairness and inefficiency, the DAV urged VA not to 

issue a final rule to authorize this practice. We also noted that such 

a rule would be unlawful because it would deprive claimants of the 

statutory right to have a decision by VA and one administrative appeal from that decision. The DAV proposed an alternative in which 

a special unit of Veterans Benefits Administration (VBA) personnel 

in Washington could perform the remand development and make a 

new decision on the additional evidence. This would be a shortcut 

to avoid the delay of a remand to the regional office. The goal of 

speeding up the process could be accomplished without any denial of 

due process for the claimant. VA brushed aside our objections and 

recommendations and issued a final rule for this purpose in January 

2002. To handle this work, BVA created its Evidence Development 

Unit, which began operations in February 2002. The DAV, joined by 

three other organizations, challenged this rule in the United States 

Court of Appeals for the Federal Circuit. In its May 1, 2003, decision, 

the Federal Circuit invalidated the rule as unlawful. As a result, VA

created a special VBA unit, the AMC, to perform remand functions. 

 The AMC develops and decides approximately 96 percent of 

the BVA remands. The issues involved in the other 4 percent are 
69

more appropriately handled by the field offices. Although the average time a case was in remand status during FY 2004 was 22 months 

because a portion of the cases were old ones remanded to field offices, 

the portion of the remanded cases that were developed and decided 

by the AMC were on remand an average of approximately 203 days. 

As of April 23, 2005, the average days a case is on remand before 

the AMC had more than doubled, to 412.6 days. The AMC currently 

completes work on an average of 231 cases a week, and 20,970 cases 

were assigned to AMC as of April 25, 2005.

 This backlog resulted from the bulk transfer of approximately 9,000 cases from the Board to the AMC in the first quarter of FY 

2004. These were cases in which further development was pending at 

the Board. Of course, the AMC had both the responsibility to develop 

and adjudicate these cases. In the beginning when the AMC was first 

organized, it had to cope with new processes and adjudicators, and it 

was understandably not up to full efficiency. As a consequence, cases 

began to back up.

Because the volume of work at the AMC was higher than expected, VBA developed a plan in December 2004 to have three VA regional offices do a portion of the remands. These offices are located in 

Huntington, West Virginia; St. Petersburg, Florida; and Cleveland, 

Ohio. Initially, the plan was that cases already developed and ready 

to adjudicate would go to the Huntington and St. Petersburg offices. 

Huntington was expected to adjudicate and authorize awards for 300 

cases per month. St. Petersburg was expected to adjudicate and authorize 500 cases per month. Cleveland was expected to develop, adjudicate, and authorize 600 cases per month. The Huntington and St. 

Petersburg offices found that some of the cases they received from the 

AMC were not actually ready to adjudicate. These offices began to 

undertake development also. The AMC currently sends 1,300 cases a 

month to the AMC teams at the three regional offices.

 Our DAV representatives at BVA observed that some of the 

earlier cases returned to the Board from the AMC were not developed 

in compliance with the remand orders. However, with AMC employees gaining experience, the quality of development has improved. 

The AMC is viewed as an improvement over the prior procedure in 

which all cases were remanded to agencies of original jurisdiction 

because cases are more strictly controlled and not left to languish in 

field offices for years as too often happened before. Our representatives at the AMC also report that AMC adjudicators are granting the 

benefits sought in many of these appeals. 

 When the BVA allows an appeal, it returns the case to the 

AMC rather than the agency of original jurisdiction to effectuate the 
70

award of benefits. The case often must go to the AMC because the 

appeal also involves a remanded issue. A major complaint is that 

the AMC delays the award of benefits on the allowed portion of the 

appeal for an average of 90 days. Even where the case involves no 

remanded issue, the case is sent from BVA to the AMC for the award 

of benefits, and this results in unnecessary delay. In such instances, 

the case should be returned to the agency of original jurisdiction for a 

prompt award. Many of these claims have been pending for years.

Our St. Petersburg DAV office reported that one troublesome 

problem experienced by the AMC team there is the receipt of mail 

from the Washington AMC that had been received while the claims 

file was at the AMC but not entered into the claims folder. The AMC 

forwards this mail to the AMC team in St. Petersburg many months 

later, sometimes after the case has already been adjudicated and 

readied for return to BVA. Apparently, this has happened in a noticeable number of cases.

Currently, VBA has 134 FTE devoted to the AMC and its 

three outstations. The AMC has 87 FTE. St. Petersburg has 25 FTE, 

Huntington has 8 FTE, and Cleveland has 14 FTE devoted to their 

AMC Resource Units. If the BVA remand rate remains at or near 

50% of its dispositions, it is projected that VBA will need to increase 

its staffing for this activity to 145-150 FTE in FY 2006. 

 Focus on the BVA and the AMC alone does not present a complete picture of the effectiveness of VA’s appellate processes. The 

timeliness and propriety of actions on appeals by agencies of original 

jurisdiction in preparing the case for BVA review and in completing 

remand actions after BVA review account for much of the overall appellate processing time and necessity to rework the case. The available data show the error rates in appealed cases are high and that the 

process takes an inexcusably long time, thereby delaying disability 

and other benefits for many veterans with meritorious claims and 

immediate needs. The problem of appeals languishing in regional offices for years is not a new one. The responsible VBA officials need to 

take more decisive action to correct this problem. Board officials need 

to take the necessary steps to reduce error rates in BVA decisions 

and to ensure binding court mandates are carried out. With recent 

increases in the appellate caseloads and no corresponding increase in 

staffing, timeliness at BVA and the AMC is likely to suffer even more. 

Congress needs to address BVA staffing more seriously.

 We appreciate the Subcommittee’s interest in these issues, 

and we appreciate the opportunity to provide you with the DAV’s 

views. We hope our views will be helpful to the Subcommittee.
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