ANNUAL REPORT

OF nIE

CHAIRMAN, BOARD OF VETERANS' APPEALS

INTRODUcnON

This report by the Chairman, Board of Veterans' Appeals'is prepared pursuant to

38 V.S.C. § 4001(d), as added by Pub. Law 100-687 (renumbered § 7101 in 1991)." Part I

cop..sists of the activities of the Board during Fiscal Year 1991 and the projected activities

of the Board for Fiscal Years 1992 and 1993, as required by 38 U.S.C. § 7~01(d)(1).' Part

II consists of the statistical data required by 38 V.S.C. § 71bl(d)(2)'and (3).

PART I

The activities of the Board in Fiscal Year 1991 were characterized by the changes

required by the Veterans Judicial Review Act, Pub. Law 100-687(1988), (hereinafterVJRA)

and by the decisions of the United States Court of Veter~nS:Appea1s. SIgnificantly, the

Court issued its first landmark decision, Gilbert v. Derwinskl"; u~s~ Vet. App'. No: 89-53 (Oct.

12, 1990), as the fiscal year began. The remainder of the fiscal year was pun.£tuated' by

decisions of the Court which had a significant impact upon the Beard's composition and

decision-making activities.

The Board began Fiscal Year 1991 with 57 Members, 10 less than the maximum

number allo~'ed by 38 V.S.C. § 7101(a). Due to the passa.ge of the VJRA, no. Members of

the Board were appointed bet\\'een November 1988 and my appointment in March 1991.

During Fiscal Year 1991. all of the incumbent Members of the-HOard. and eight additional

~femhcr~ ~'ere appointed. effective July 28. 1991. Currently, six additional Members are

in the process of being appointed. This procedure ~;lr be completed during Fiscal Year

1992 and ~'ill bring the Board to its full statutory complement of 67 Members for the first

time ~ince 1988. Due to the staggered initial terms of Board Members under-the VJRA,

approximately one-third of the initial terms will expire in Fiscal Year 1994.

The role of physicians at the Board became an issue during Fiscal Year 1991. It

prominently influenced recommendations on the tern1S of office for Board Member

~lpp()intmcnts. Some of the earliest dccisio!1s of the COUit emphasized the statutory

rcljuirements that evidence utilIzed in thr: H\' ,\ decision making process must be of "record..'

In (~()n'i" ". Dt'rn';/lski. U.S, \'I.'t, ,\pp. ~(I. ()(}-196 (~1ar 8, 1991). the Court..made it clear

th~lt ()nly inJependcnt medical judgment c()uld hI.' utilized in the Board's decision-making

pr()cess. 11le concern of the Court. and the Board, is that BV A's traditional use of

J\hY'lcian~ a~ al1judicator jdccisi()n-makers might hc in conflict with this requirement.

(()n-,cljuently. a careful a-"se~sment of the implic~tions of the basic issue of thc most

appr()priate ;lnd effective use of doctors by the Board is underway. To provide the
maximum flexibility, and in anticipation of Colvin and its progeny, three year terms of office

were recommended for each of th~ physician Board Members appointed in the initial round

of appointments in Fiscal Year 1991. No additional physician Board Members were

recommended among the six Board Members currently in the process of appointment in

Fiscal Year 1992, and it is planned that no additional physician Board Member

appointments will be recommended until all of the questions revolving around this issue are

resolved to we satisfaction of the Department and the Court. In Fiscal Year 1992, the

physicians who bad been ~cting Board Members will assume the role of medical advisers

to the Board. In this capacity, their activities will {nclude providing medical training to

Board cour1..l\el and associate counsel, performing a medical quality review o{ Board

decisions, and providing medical opinions in cases referred to them by the Board.

The creation of the United States Court of Veterans Appeals accented a need for

increased communication between Board Members; between the Board and operational

components of the Department; and between the Board and the veterans' service

organizations (VSO) which provide representation to many of the veterans who seek

Secretarial level appellate review from the Board. (In more than 89 percent of BV A cases,

a service organization provides representation to the appellant.)

Efforts in Fiscal Year 1991 to develop an environment in which Board Members

could meet regularly for discussion resulted in the construction of a conference room to be

utilized for meetings, training and conferences. This conference room was dedicated early

in Fiscal Year 1992, in memory of my predecessor, as the "Kenneth E. Eaton Board Room."

Communication within the Board was also enhanced by the inauguration, in Fiscal Year

1991~ of monthly Board Member Convocations, in which senior staff and Members of the

Board present discussion topics concerning appellate issues. The need for enhanced liaison

between VA organizational units in order to respond properly to Court-induced systemic

modifications resulted in the establishment, in Fiscal Year 1991, of a top-level steering

group consisting of members of the Office of the General Counsel, the Veterans Benefits

Administration, and the Board. This "Triad" group meets regularly to ensure proper

communications and organizational response to Court decisions. The Board also initiated

"VSO Forums" which are held quarterly, in which veterans' service organization

representatives meet ""ith me to discuss issues applicable to the appellate review process.

Additionally, beginning in Fiscal Year 1991, copies of all of the Chairman's numbered

memoranda were distributed directly to VSOs, and others..who requested copies, to transmit

information concerning the ch3nges in process and/or organization at the Board. Outreach

acti\;ries to the VSOs included participation in several VSO events during Fiscal Year 1991.

F()r example, informational presentati()ns were made at the national conventions of the

Disahled I\merican Veterans and the I\meric~ln l..cgion, at the national meeting of the state

government veterans' service dep~lrtments, alld at the Proficiency Training Conference of

the Veteran.~ of Foreign Wars of the United States. At the first VSO Forum in Fiscal Year

}<)92, the representatives were requested to convey to their organizations the Board's

willingness to participate in additional informati()nal and training programs in Fiscal Year

7
1992, and it is anticipated that activities in Fiscal Years 1992 and 1993 will continue to

include such outreach activities.

The VJRA imposed a statutory requirement on the Board to provide hearings at

regional offices before a "traveling section of the Bo'aId." 38 V.S.C. § 4010 (renumbered §

7110 in 1991). Previously, the Board had provided such hearings on an ad hoc and

discretionary basis. As of September 30, 1991, there were 1,548 pending requests for

hearings before a traveling section of the Board. Historically, the Board has conducted

approximately 600 hearings per year on a traveling basis. During Fiscal Year 1991, that

number was increased to 873. It is anticipated that the demand for hearings by Boa::d

Members at regional offices will increase. Consequently, beginning, in Fiscal Y ~ar 199~,

hearings both in Washington, D.C., and at regional offices will be held by a single Board

Member. The Board's decisions will continue to be made by a section generally consisting

of three Board Members; however, 38 V.S.C. § 7102(b) (fonnerly § 4002(b» permits the

hearing to be held by a single member of the section rendering the Board's decision.

Naturally, the other members of the Board section will have to defer to the member who

held the hearing as to judgments of credibility based on demeanor. The Board will then

have the potential to provide more than twice as many hearings than could be afforded by

three member hearing panels. The possibility of providing hearings through the use of

video-teleconferencing was studied in Fiscal Year 1991; it was determined that this method

of providing hearings was prohibitively expensive at this time.

An incident involving a traveling section of the Board in Fiscal Year 1991 highlighted

the increa.~ed need for security arising, in pan, from the increase in hearings held by Board

Members at regional offices in Fiscal Year 1991 and the anticipated continued higher

volume of "travel Board" hearings in Fiscal Years 1992 and 1993. As a result, the first BV A

Bailiff was hired in Fiscal Year 1991, and a second bailiff will be hired in early Fiscal Year

1992. The bailiffs will provide an orderly environment conducive to the conduct of hearings,

evaluate crime prevention programs, act as liaison with local security officers in addressing

threats to traveling Memhers of the Board, and be responsible for the integrity of the claims

folders and all Board materials for traveling sections of the Board.

The relocation of the Ilearing Section, as part of the physical reorganization of the

Board begun in Fiscal Year 1991, also enhanced the Board's hearing function. This move

was completed early in Fiscal Year 1992 and established ~ reception office on the first floor

of our headquarters building at Vermont Avenue so that veterans, upon entering the

building to attend a hearing, would be immediately directed to an adjacent reception area.

Previously, vctcrans entering the building we!"c "C~lst adrift" to fend for themselves and seek

out our reception arca on thc third floor.

Fiscal "car lQ91 also saw the institution of a prototype of BVA's long-term

automati()n arrangements f()r increa~ing its autom~ltcd data processing capacity. Board

Memhcrs and Hoard counsel in t\\'C) of the Board's 21 sections now perform all of their

decision development. drafting. editing and finalization at networked computer workstations.

3
Through their use of these automated tools, we expect to be able to eventually reduce the

Board's needs for clerical support in the preparation of decisions, to boost professional staff

productivity and to improve upon the quality of the Board's work product. During Fiscal

Year 1992, automation will include ,adding additional Board sections to the Board's

automated data processing and further steps in the Board's conversion from the Wang

environment to a tAN (local area network) environm~nt, part of the Department's NOA V A

conversion. During Fiscal Year 1993, it is anticipated that automation will move towards

the completion of Board section automation and the conversion to a LAN environment.

All of these activities accomplished in Fiscal Year 1991 and planned for Fis~al Years

1992 and 1993 reflect the Board's response to changes brought about by the VJRA These

activities have been planned and taken in the spirit of the Total Quality Management

initiative of the Department. In addition, the Board's TQM activities in Fiscal Year 1991

included the reorganization of the Board's Administrative Service, which was effectuated

at the beginning of the fiscal year, and "workout sessions" for members of the Board's

Administrative Service to identify problem areas and recommendations for solutions. TQM

activities planned or suggested for Fiscal Years 1992 and 1993 include meetings between the

Chairman and members of the Board's Administrative and Professional Services, and an

Implementation and Functions analysis.

By far the most significant impact of the VJRA on the Board's activities was the

establishment of the United States Court of Veterans Appeals. The decisions of the Court,

beginning ,,;th Gilbert ~'. Derwi1lJki, have had the greatest impact upon the Board's daily

decision-making processes and its organizational structure. These landmark decisions of the

Court have resulted in re-adjudication of a significant number of the Board's decisions as

well as profound change in the Board's decision-making process. The Court's landmark

decision.~ in Fiscal Year 1991 included Gilbert ~I. Derwinski, issued in October 1990, which

interpreted the amendment of 38 U.S.C. § 4004(d)(I) by the VJRA (renumbered §

71O-t(d)(1) in 1Q91), no'" requiring the Board to include the "reasons and bases" for its

findings and conclusions in its decision.~, in such a way as to render the Board's previous

decision format inadequate under the new statutory standard; Littke v. Dern'inski, issued in

December 1990, whicl1 required the Board to remand cases for evidentiary development

under the Department's duty to assist the claimant in developing the facts pertinent to the

claim under 38 U.S.C. § 5107(a) \,.hen the appellate record is deemed inadequate; Mania

". Dern'in.\"kl., issued in Fehruary 1 Ql} I, ".hich interpreted 38 U.S.C. § 3008, added by the

VJRi\ and renumhered § 510S in 1<)91. to require a different standard of review than that

formerly used in considerati()n of claims which had previously been denied; and Colvin v.

Dt",,'ilL,ki. i~sucd In ~1arch Illlll, \,.hich hcld :hat the Board may consider only independent

mcdical evidcncc to supp()rt Its finding~. I:ach of these landmark decisions has been

foll()wed hy latcr dccisi()ns rcfining thr:~e opinions initially promulgated by the Court in

I:iscal "ear 1<)91 and requiring h()th thc rc-adjudication of additional Board deci~ions and

the continued rl:\.ision ()f thr: IJ()~ird's deci~ion-making process.

4
The Court's decisions in Fiscal Year 1992 already indicate a continuation, if not an

acceleration, of this trend. With the repeal in August 1991 of the provision of 38 V.S.C. §

7267 which provided that the Court's decisions would become final 30 days after their

issuance, and the Court's decision in Tobler v. Derwinski, issued in October 1991, the Board

now has no leeway in effectuating the decisions of the Court. The Board must re-adjudicate

cases currently in process in light of the decisions of the Co1.lft beginning on the day each

Coun det;sion is issued. In instances of landmark decisions of the Court, which have a

broad impact upon the Board's daily decision-making process, this requires the Board to

stop the flow of cases, identify the cases which are affected by the Court's decision, cease

adjudication of any cases affected by the Court's decision ur.til instructions concerning the

implementation of the Court's decision can be issued to the Board sections, and readjudicate any cases at the Board which are affected by the Court's decision. This process

is particularly disruptive to the orderly flow of administrative case processing for the

dispatch of decisions from the Board once cases leave a Board section. Two such landmark

decisions were Rowe v. Derwinski and Schafrath v. Derwinski, issued in November 1991,

which altered the Board's decision-making process concerning appeals involving increased

ratings for service-connected disabilities. In response to these two decisions of the Court,

a Chairman's Memorandum was issued instructing all Board sections in new procedures to

be followed in pertinent appeals. Approximately 1,000 cases were identified, at various

stages of BV A out-processing, which had to be re-adjudicated. There were also a substantial

number of additional cases at earlier stages of BV A adjudication which also had to be

reworked under the new analytical requirements of Schafrath and Rowe. The November

Rowe decision was vacated in early January 1992, which again required the Board to identify

and rework ca.~es in light of the Court's decision to vacate its earlier decision.

The Board is assiduously attempting to comply with the decisions and instructions of

the Court. However, it is only able to apply the Court's decisions prospectively. The

Department is currently in a hiatus in which the Court is reviewing decisions of the Board

which were decided before the Court issued most of the opinions which constitute the body

of decisional law which now binds the Department. A disturbing trend in the Court's

decisions remanding ca.~es to the Board for re-adjudication in light of decisional law

promulgated after the issuance of the BV,\ decision on appeal to the Court is the inclusion

of a deadline for the issuance of a supplemental Board decision. It appears to be a paradox

that, while the Board strives for quality and comprehensiveness in its decisions, the Court

feels compelled to impose time constraints \\'hich impede the production of that type of

decision.

nle additic)n of thc ~tatut()rj' r'.:(~uirem~nt that the Board's dccisions include "the

rcal\ons or ha~es" for its findings and conclusi()ns rcsulted in significant changes in the

format of the Bc)ard's decisions in I:i~cal )'car 1()91. lltc initial result was an increased

frankness in the Board's deci~i(}n~ in the discussion of the credibility of witnesses and

documentary e,'idence. Gilht'rt dictatcd significant ch:lnges in the analysis used to evaluate

appeals hcfore the Board, instituting a three-prong analysis of the claim itself, the

development of the evidenti:lry record, and, only after consideration of these other factors,

5
the merits of the claim. Mania interpreted a statutory provision added by the VJRA to

require a two-prong evaluation of previously denied claims for the presentation of nnew and

material evidence- to reopen the claim and remove the finality of the prior denial. These

changes resulted in the discussion of different aspects of the evidence, at times at much

greater length than under the old analysis. A Chairman's Memorandum issued in June 1991

discussed the changes in analysis and decision form~.t resulting from Mania and subsequent

decisions on finality of the Department's adIninistrative decisions. A Chairman's

memorandum announcing the revised review process and decision fonnat was issued in

August 1991. The format of tbe Board's decisions was cbanged to eliminate the separate

sections for the evidence and the laws and regulations. The pertinent evidence and the

applicable laws and regulations are now set forth in the section which explains the reasons

and bases for the decision. We have also renamed some sections of the decision to more

accurately reflect their function, reordered the sections within the decision and added some

additional information to provide the reader "nth a better grasp of the Board's decisionmaking process. We look forward to the time when the Court will have an opportunity to

re..;ew decisions promulgated by the Board since the decision-making process and format

were reconstituted in mid-1991.

The impact of the changes flowing from the Court's decisions will result in an

increase. on average. in the amount of time needed to prepare a Board decision. As a

consequence. the productivity and statistical criteria applied by the Board in the past are no

longer meaningful. BV A decisif)ns are now much more complex and longer than in the past.

Moreover. the Board is now required to continually alter its product in response to the

Court's decisions. Its decisions continue to evolve toward increasing complexity and

comprehensiveness. Consequently. the Board's former systems of productivity measurement

are of very limited use in accurately measuring or establishing current meaningful standards

of productivity.

At present, there are insufficient data to establish new standards. Moreover, the

situation is not sufficiently static to attempt a meaningful study of productivity and timeliness

at the Board due to the continuous issuance of precedential Court decisions which

significantly alter the way in which V A adjudicates appeals. The complexity and length of

BV A decisions continues to increa..~e exponentially. BV A plans to institute a comprehensive

re\;ew of its producti\1ty and timeliness measurement standards and procedures as soon as

matters reach a point where meaningful parameters C;u1 be established, perhaps in the

second quarter of Fiscal Year 1992. At that time, a comprehensive productivity and work

mr:a..~urement study will he c()nducted to pro\'ide data essential for the Board's review.

Currently. the measurement stanJarJs in effect yield statistics which do not present

the most accurate reflection of thc lloarJ's real proJuctivity and timeliness. The current

sy!'tcm. of statistics does not draw distinctions bct\l/een classes of cases which have a

meaningful impact on timeliness and productivity. For example, cases in which the

appellant is rcprc!'cntccJ by a \etcrans' service organization require additional time for the

vetcrans' service organization representative to prepare written argument to be presented

6
to the Board; this averaged approximately 42 days in early Fiscal Year 1992 and can vary

significantly from case to case. In contrast, cases in which no additional written argument

is submitted to the Board might be decided more quickly. Additionally, in cases in which

a travel Board hearing is requested, time is expended waiting for a place on the regional

office's travel Board h:aring schedule, but the time is not included in the Board's timeliness

statistics; cases in which a hearing is requested before the Board in Washington, D.C., do

include time spent waiting for a place on the hearing schedule in the timeliness statistics.

Nonetheless, until more accurate measurements are devised, the statistics reported

in Part II indicate, to the exteni possible, the timeliness and productivity of the Board, as

required by 38 V.S.C. § 7101(d)(2) and (3). In particular, it should be noted that the

General Accounting Office formula used to measure the elapsed time for remands does not

provide a true measurement of the elapsed time required in these cases.

PART II

1. The follo"ring information pertaining to preceding fiscal year(s) is required by 38 V.S.C.

§ 7101(d)(2):

(A) Number of ca.,es appealed to BV A during FY 1991: 43,093

Number of ca.~es pending before BV A at the start of FY 1991: 19,450 (B)

Number of ca.~es pending before BV A at the end of FY 1991: 17,235

(C) Numher of ca~es filed during each of the 36 months preceding FY 1992:

Estimatcd Numbcr of Ncw

Notices of Disagrecment

Rcccived in the Ficld

Numbcr of Appeals

R~cei\'Cd at thc B\'A

-EY-2l

5,787

5.392

4,795

5.578

5.254

5,9<)3

6,2.1{9

5.IX.o

5,~3

5,6.~5

5,755

~

fl...!lJ.

4.327

3.1x.~

4.~~~

3.~~

l.:!-\ 1

1..u~

3.524

3~~~~

3~ "\()...

3.R'\.'\

3.5')01

~

~

()cll)~r

!'-.:llvcmtx-r

()ccl:mt'Cr

Januaf)'

I:l"hruary

~1.Jr(h

/\prll

~t.J\

Junc

J ul\

/\ u~u,!

~l"rll:mt'Cr

"" ...' (1'1' "" XI)." -I-t .--"4 67,442 (1<'1,127 74,292

.,. 

T "~.l1

7

~

6,113

5,855

4,821

5,576

4,770

5,778

5,115

5,773

5,510

5,684

5,948

2J1:!

~

5,546

5,519

5,570

5,~2

5,903

6,956

7.280

6,411

6,0'))

5,8CXJ

7,270

fj.Jlli

~

4,15<1

3.657

5.:!.1\(}

2.101

2. 95.~

4,1St.

4.1S'l

33'17

4,_"1~

., co ..,

-, "'-

1,~7

~

~

Z,IJ15

3,7¥J

3,073

Z,(),~~

3,311

4,16:\

_',77.'\

4,t,7.'\

3,X:'"

3,:!(,1

4.(),'"

41O' ~
"

(D) Average length of time a case was before the BY A between the time of the filing of an appeal

and the disposition during the preceding fiscal year:

Average Elapscd

Time Interval ResQonsible Part) Processing Time

Notice of Disagreemcnt Rcccipt Field StabOD

to Statcment of thc Case Issuance

58 days

Statement of the Case Issuance

to Sub~tantive Appcaj Receipt

Appellant 59 days

Substantivc Appc.aJ Rcaipt to

CCrtUlcatiOD or AppcaJ to BV A

Field Station 185 days

Receipt of Certificd Appcat to

Issuance of BV A Decision

BVA 160 days

Average Remand Time Factor Field Station 36 days

E) Number of Members of the Board at the end of FY 1991: 57 Members

Number of professional, administrative, stenographic, clerical, and other personnel employed by the

Board at the end of FY 1991: 420 Employees for a total of 411 FfE

2. The follo\\;ng projections penaining to the current fiscal year and the following fiscal year (budget

year) are required by 38 V.S.C. § 7101(d)(3):

(A) Estimated numbcr of ca.~es that will be appealed to the BV A:

Fiscal Year 1992:

Fiscal Year 1993:

46.500

50.000

(8) Evaluation of the ability of the Board (ba.c;ed on existing and projected personnel levels) to

ensure timely disposition of such appeals a.~ required by 38 V.S.C. §7103(d):

(1) Rackground on RV t\ Timeliness Projections. The indicator used by the BV A to forecast its

future timelines5 of service delivery is BV A rc5ponse time on appeals. By taking into account

the Board's most recent appeals processing rate and the number of appeals that are currently

pending hcforc the Board, BV A response time projects the average time that will be required

t() rcndcr dccisi()ns on that same gr()up of pending appeals. BV A response time is computed by

first determining the B\' /\'s a\'cr~lgc d~lily ~lppC~lls processing rate for a recent given time period.

This is determined hy {']ividing the numhcr of appeals dccide{.] by the calendar day time period

over which those appeals were (']ispatched. BV 1\ response time is then computed by dividing the

numhcr of appcals pending hcf()re the Hoard hy the average daily appeals processing rate. As

an cxample, BV 1\ response time for 1-:)' 1992 wa.~ computed as follows:

8
44,500 Decisions + 365 Days = 121.92 Decisions per Day

19,235 Appeals Pending before the BV A (end of FY 1992) + 121.92 Decisions per Day = 158 Day

Response Time on Appeals

(2) Res!1onse Time Projections: Based upon existing and projected levels of resources,

the estimate of BV A response time, as given in our budget submission for FY 1993, is 158

days for FY 1992, and 141 days for FY 1993. These response time projections arc

contingent upon the appeal receipts estimates for FY 1992 and FY 1993 shown in paragraph

2(A) of this part, above.

However, since our budget submission in August 1991, statistics indicate that our initial

projections and estimates will be adversely affected by subsequent events. Precedential

decisions of the United States Court of Veterans Appeals have imposed and will likely

continue to impose additional requirements for case analysis and development at the Board.

As decisions of the Court are effective when issued, precedents of this type may require the

Board to re-adjudicate a large number of cases which had been adjudicated, but not

dispatched from the Board. For example, in Schafrath v. DelWinski, U.S. Vet. App. No. 89-

114 (Nov. 26, 1991), the Court interpreted provisions of Title 38, Code of Federal

Regulations, to require additional analysis in cases involving claims for increased ratings for

service-connected disabilities. It is initially estimated that these additional analytical

requirements will result in approximately sixty percent of the Board's decisions requiring the

expenditure of twenty percent more time by attorney-advisers. In addition, in FY 1991 and

FY 1992, the Board filled its complement of Board membership by promoting 14 of the

Board's senior attorney staff. The Board is unable to replace these attorneys during FY

1992 due to FTEE limits for that year. Therefore, there are fewer Board counsel engaged

in the preparation of tentative decisions for review by Board Members. Moreover, due to

the institution of single-memher hearings, both in Washington and at regional offices, in

order to meet the increa.o;ed demand for hearings before the Board, Board Members will be

expending proportionally less time in ca.o;e deliberation. As a consequence of (1) the

additional time, effort. and resources necessary to comply with the directives of the Court;

(2) the dilution of the Board's experienced attorney personnel in FY 1992; and (3) the

increa.o;ed demands placed upon the Board Members' time, the estimated number of

appellate decisions to he prc)duced in FY 1992 has been decreased from the estimate of

44.500 contained in the hudgct suhmitted to the Office of 1\1anagement and Budget (OMB)

in August 1991. .

It is now estimated that the impact of Schafrath will have the effect of reducing the

Board's current output hy approximatc:ly 5,.;100 decisions per year. This would reduce the

projected output for I:Y IIJ1J2 fr()m 44,5()() to 39,100 decisions. The number of decisions

is~ued per day would hc: reducc:d fr()m 121.92 to 107.12. If the estimated number of ca.~es

~pp..:alcd to the BY,\ remains as projc:cted (46,5(){), the BY A response time on appeals

would be lcpgth..:ncd to 22t).97 days from 15X days.

Q
The number of BV A decisions produced in FY 1993 should rise with the increase in the

number of attorneys budgeted for that year. At least twenty-six of the thirty-five additional

attorneys budgeted should be active in case production; the remaining attorneys are

budgeted to be used for additional work requirements resulting from the designation of

records on appeal to the United States Court of Veterans Appeals and the increased

demand for Board hearings at regional offices ("travel Boa.!"d hearings"). If twenty-six

additional attorneys produce decisions, output for FY 1993 should approximate 47,130

decisions. Decisions per day would be 129.11 and BV A response time would be 213.03 days.

If all thirty-five additional attorneys produce decisions in FY 1993, output should

approximate 49,900 decisions; however, this would be at the expense of other necessary

activities, including the duties for which the additional attorneys had been budgeted. If

thirty-five additional attorneys produce decisions, decisions per day would be 136.73. BV A

response time would be 180.90 days.

Estimates based upon the actual statistics for the first quarter of FY 1992 are even less

encouraging. The Board produced 8,711 decisions in that quarter. If the Board continues

to produce 8,711 decisions per quarter, the Board will only produce 34,844 decisions for the

year, for 95.46 decisions per day. If the projection of 46,500 cases received remains

accurate, BV A response time for the year will be 302.83 days. Projections for FY 1993,

ba.~ed on BVA output of 47,130 decisions by an additional twenty-six attorneys producing

decisions, would be a response time of 246.14 days. Based on BY A output of 49,900

decision..~ by an additional thirty-five attorneys, projected response time for FY 1993 would

be 212.16 days.

The calculations ha.~cd upon the actual number of cases produced divided by the actual

numher of days in the quaner differ slightly from the calculations based upon estimates of

FY 1993 production re:Jched hy projccting the production for the first quarter of FY 1993

over the fi5cal year. a.~ wa.~ done ahove. In the first quarter of FY 1993, the Board actually

produced 94.68 decisions per day. which was calculated by dividing the 8,711 decisions

produced hy the 92 d:JYs in the quarter. The Board had approximately 18,391 cases pending

at the beginning of the second quarter of F)' 1992. Dividing the number of cases pending

at the hcginning of the scc()nd qu:Jrter by the 94.68 decisions per day actually produced,

BV A response timc is 1(}~.~~ d~iYs. which is stilllJnacceptably high.

Projection5 for J:Y 1993, a.,suming that BV,\ produced 34,55R decisions in FY 1992 at the

ratc of 9..t.h.l\ dcci~ions per d:IY, \\'ould he calcul3tcd on the ba..~is of 29,177 cases pending at

the heginning of I:" 141)3 plu, the prc)jccted numhcr of 50,000 cases received, On this basis,

nV,\ respon5c time \\'ould ht.' :!~X.:! I day' for output of 47,130 decisions by an additional

twenty.~ix atturneY5. nv A rt.'spc)n.'e time would he 214.12 days based on BV A output of

~Q, <)(',() deci.'ion~ prc)duccd hy thirty-five additional attorneys.

lnc~c c~tim~ltc~ d() n()t take into account thc factor that the Board's rate of remanding

C~l~e~ to the rcgi()nal ()fficcs ~te~ldily increased through the latter part of FY 1991 and into

}O
~. .'"

FY 1992, and reached a remand rate of approximately 50 percent in November and

December of 1991. The majority of these cases will be returned to the Board for

adjudication, increasing the number of appeals received by the Board beyond the estimate

submitted with the budget in August 1991. The estimates also do not encompass the

additional ca.c;es received annually as the result of cases remanded from the United States

Court of Veterans Appeals to the Board for re-adjudication. This number bas also been

rising.

Another factor which will increase the BV A response time is the necessity to stay

adjudication of certain classes of cases if the Department's policy differs from a bolding of

the Court. For example, appeals affected by Fugere v. Derwinski, U.S. Vet. App. No. 89-72

(Dec. 27, 1990)( certain claims for disability for defective hearing), and Gardner v. Derwinski,

U.S. Vet. App. No. 90-120 (Nov. 25, 1991)(claims for benefits under 38 U.S.C. § 1151) bave

been stayed pending resolution of an appeal to the Federal Circuit and a motion for

reconsideration by the Court of Veterans Appeals, respectively. Cases which are held at the

Board pending resolution of motions for reconsideration by the Court or appeal to the

Federal Circuit will increase the BV A response time. Cases which are returned to the

regional offices will not increase BV A response time.

In short, the creation of the United States Court of Veterans Appeals has introduced

additional variables into the calculation of estimates of the Board's timeliness and

productivity. There are currently insufficient data and experience to enable us to accurately

predict the Board's timeliness and productivity. Initial experience, however, indicates that,

at least in the initial stages of the Court's existence, the Board's timeliness and productivity

ha~f adversely affected.

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I' 

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l' Charles : I'{ 14 L /~. Cragin(~~~ 

Chairman, Board of Veterans' Appeals