DEPARTMENT OF VETERANS AFFAIRS

Chairman. Board of Veterans' Appeals

Washington DC 20420

November 19, 1992

Hon. Anthony J. Principi

Acting Secretary of Veterans Affairs

Department of Veterans Affairs

Washington, DC

Dear Mr. Secretary:

I respectfully submit for your submission to Congress the Annual Report of the

Chairman, Board of Veterans' Appeals, for Fiscal Year 1992. Part I of this report is.

intended to provide an overview of the Board and its activities during Fiscal Year (FY)

1992 and the projected activities of the Board for FY 1993, as is mandated by 38 U.S.C.

§ 7101(d)(I). The specific information required by 38 U.S.C. § 7101(d)(2) and (3) is

contained in Part II of this report.

As you well know, this past Fiscal Year has been one of extraordinary change at

the Department as a result of the dramatic changes in the law of veterans benefits, as

interpreted by the United States Court of Veterans Appeals. While judicial review has had

a profound impact on the adjudication process, I believe that the organizational

components involved in benefits determinations and in representation before the Court

have responded cooperatively to successfully meet these challenges.

May I take this opportunity to express my appreciation for your commitment and

invaluable assistance in enabling the Board to meet its changing responsibilities as the

Department entered the era of judicial review.

I hope that the enclosed report provides you, the Congress and the veterans that

we serve with a comprehensive picture of the Board and its mission and activities.

Respectfully yours,

III

Charles L. Cragin

Enclosure
TABLE OF CONTENTS

PART I

THE BOARD OF VETERANS' APPEALS -An Overview 3

HISTORY 3

ORG.,o\NIZATION 4

Organizational Chart 7

MERIT SELECTION OF BOARD MEMBERS 8

HEARINGS BEFORE BV A 8

Single member hearings 9

REPRESENTATION BEFORE THE BOARD 9

IMPACT OF JUDICIAL REVIEW ON BVA APPEALS ADJUDICATION ~ 10

Adjudication prior to the VJRA 10

Some landmark decisions of the Court 11

Colvin and the Role of the BV A Physician 13

IMPACT OF JUDICIAL REVIEW ON TIMELINESS AND PRODUCTIVITY 14

Court decisions which have significantly affected timeliness and productivity 15

New productivity measurement standards for staff counsel 17

Revised standards for the measurement of decision timeliness and productivity 17

FY 1992 Statistics 18

BV A IS NEW RULES OF PRACTICE AND ATTORNEY FEE ISSUES 21

AUTOMATION INITIATIVES 21

TRAINING 22

TOTAL QUALITY MANAGEMENT (TQM) INITIATIVES .."""" '."...:"' 22

CORRESPONDENCE AND CONGRESSIONAL LIAISON ACTIVITIES 23

PART II

ADDITIONAL INFORMATION PROVIDED PURSUANT TO

38 U.S.C. § 7101(d)(2) and (3)

, 

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1
PART I

THE BOARD OF VETERANS' APPEALS

AN OVERVIEW

The Board of Veterans' Appeals (BV A or Board) is the component of the Department of

Veterans Affairs that is responsible for entering the Secretary's final decision in each of the

many thousands of claims for entitlement to veterans' benefits that are presented annually

for appellate review. The subject matter for adjudication encompasses the range of

veterans' benefits, including claims for entitlement to service connection, increased

disability ratings, total disability ratings, pensions, insurance benefits, educational benefits,

home loan guarantees, vocational rehabilitation, dependency and indemnity compensation,

and many more. About 90 percent of the claims before the Board involve medical subject

matter. The mission of the Board is to issue timely, consistent, quality decisions on

appellate matters presented to the Secretary for final decision. Its activities are directed by

a Chairman appointed for a six year term by the President and confirmed by the Senate.

The Chairman is "directly responsible to the Secretary," as provided by 38 V.S.C.

§ 7101(a).

HISTORY

By Executive Order 6090. effective March 31. 1933. Veterans Regulation No.2. Part II.

President Franklin D; Roosevelt established the Veterans Administration as the

organization responsible for administering all veterans' programs and benefits. The

previous patchwork system of appellate adjudication of claims for veterans' benefits was

eliminated and all questions of entitlement to benefits were subject to a single appeal to the

Administrator of Veterans' Affairs. On July 28. 1933. President Roosevelt created the

Board of Veterans' Appeals by Executive Order 6230. Veterans Regulation No. 2(a). The

Board was delegated the authority to render the final decision of appeal for the

Administrator and, organizationally. was directly responsible to the Administrator. The

Board was charged "to provide every possible assistance" to claimants and to take final

action which would "be fair to the veteran as well as the Government." Initially. the

Board was composed of a Chairman. Vice Chairman. and no more than 15 associate

members. In the 1930's. the Board established procedures. guidelines, and precedents.

many of which eventually were codified as regulations.

.

In the 1940's, procedures were established for affording appellants hearings, including

recorded hearings conducted in the field by traveling Board members. The Board's

workload was greatly increascd in the aftermath of World War II. For example, in 1949

the Board rendered almost 70,000 decisions. These decisions generally were simple,

3
short, and concise. The 1950's were characterized by the implementation of

organizational and operational programs to achieve more efficient case management.

During the 1960's, the Board was enlarged to 14 sections of three members and the scope

of the travel Board hearing program also was expanded. The Board's role in the

promulgation of claims adjudication policy was terminated, because it was felt that this

was inconsistent with the Board's primary function as an independent, quasi-judicial

agency within VA. Appellate policy also was significantly altered with the enactment of

Public Law 87-666, effective January 1, 1963, which required the agency of original

jurisdiction to furnish an appellant a "Statement of the Case," a decisional document

containing a detailed recitation of the evidence, applicable laws and regulations, and

explanation of the rationale underlying the denial of the claim. Also in 1963, the Board

was granted statutory authority to obtain an advisory opinion from one or more medical

experts who are independent of VA in cases involving complex or controversial medical

issues. The Board's Rules of Practice were extensively revised and were first published in

the Code of Federal Regulations in 1964. Currently, BV A's appellate regulationtl are

contained in Part 19 and the Board's Rules of Practice are found in Part 20 of title 38 of

the Code of Federal Regulations.

The 1970's were characterized by a significant increase in the number of appeals as part of

the aftermath of the Vietnam War. In 1977, the number of new appeals exceeded 60,000.

In 1982, 68,000 new appeals were filed. The average appellate processing time, measured

from the date of filing of the Notice of Disagreement until the date of issuance of a final

B VA decision, increased significantly. At the end of Fiscal Year (FY) 1982, the average

appellate processing time was 483 days, up from 443 days the preceding year. To help

with the increased workload, the President approved an increase in Board members to

form 19 three-member sections in 1984. The maximum number of authorized Board

members subsequently was increased to 67 and 21 sections were formed.

The Veterans' Judicial Review Act (VJRA), Pub. L. 100-687 (Nov. 18, 1988), which

established the U.S. Court of Veterans Appeals, has had a profound impact on the Board

and the entire process by which claims for veterans' benefits are adjudicated. Clearly, the

enactment of the VJRA has been the most revolutionary change in the adjudication system

since the inception of the Board in 1933.

ORGANIZA TION

The statutory authority for the establishment of the Board is contained in Chapter 71 of

title 38 of the United States Code. The mission of the Board is "to conduct hearings and

consider and dispose of appeals properly before the Board in a timely manner." The

Board is authorized to have "sufficient" professional, administrative, clerical, and

stenographic personnel as are necessary to accomplish this mission. 38 U.S.C. § 7101(a). .

Also as provided by 38 U.S.C. § 7101(a), in FY 1992, the Board reached its maximum

strength of 67 members, including the Chairman, Vice Chairman, and Deputy Vice

Chairman. The Chairman, who serves for a term of six years, is appointed by the

President of the United States with the advice and consent of the Senate. The remaining

4
Board members serve for a term of nine years; however, the initial appointments to the

Board, as provided by the VJRA, are for equal numbers of appointments to terms of three,

six, and nine years. All the initial appointments to the Board have been made. Board

members are appointed by the Secretary, with approval of the President, based upon the

recommendations of the Chairman. It is noteworthy that prior to the VJRA, which first

imposed this condition of employment, Board appointments were not subject to a term of

years. All Board members occupy GS-15 positions, with the exception of the Chairman,

who holds an Executive level position, and the Vice Chairman and Deputy Vice Chairman,

who are members of the Senior Executive Service. Board members are the only federal

employees at the GM or GS-15 level that require Presidential approval for appointment.

BV A is organized into Professional and Administrative Services. The Professional Service

consists of the sections of the Board, Staff Medical Advisers, and the Chairn1an's staff.

The decisions of the Board are rendered by a majority of a Board section composed of

three members. 38 U.S.C. § 7103(a). Currently, there are 21 Board sections. Each

section is composed of at least two attorney Board members, one of whom is designated

Chief, and bears the supervisory responsibility for the Section. In the past, the third Board

member was almost always a physician. However, as is explained below, recent changes

in the law, as interpreted by the United States Court of Veterans Appeals (the Court) have

altered the role of the physician in the VA adjudicatory scheme. After their initial tern1 of

appointment expires in July 1994, no further appointments of physicians as members of the

Board will be made. At such time, all three members of the Board section will be

attorneys.

A professional staff of six or seven attorneys, referred to as staff counsel, are assigned to

each Board section. Staff counsel are graded from GS-9 through GS-14. The Chief

member of the section reviews the section's caseload and assigns individual appeals to

each staff counsel for the preparation of a written tentative decision. The counsel submit

the completed tentative decision to the Board section for review. The Board section

typically will review the record and revise the submission itself or return it to counsel for

revision. When a decision that is acceptable to the Board is finalized, the decision is

processed through the Board's Quality Review section and then forwarded to the

Administrative Service for dispatch. If the Board's decision is not unanimous or if the

rationale for the decision is not agreed upon by all the Board members, a dissenting or

concurring opinion will be prepared. The Chairman reviews less than unanimous

decisions. Assisting the Board members in their consideration of an appeal is a staff of

Medical Advisers, who provide medical research and training. In addition, a medical

evaluation of a case may be obtained from the VA Chief Medical Director, the Armed

Forces Institute of Pathology, or an independent medical expert, usually a member of the

faculty of a leading medical school.

The Board's Administrative Service is charged with supporting the system which permits

the efficient processing of appeals. These services include case management and tracking,

secretarial services, transcription services and liaison activities with veterans, veterans

service organizations, Members of Congress and their staffs, and other interested parties.

The Board's transcription unit is located in Wilkes-Barre, Pennsylvania. Draft decisions,

5
hearing transcripts, and other documents are electronically communicated from the

transcription unit to the Board's offices in Washington, DC.

In FY 1993, it is planned to reorganize the Board's Administrative Service and the Office

of the Special Assistant for Management into a combined Office of Analysis, Planning and

Management Operations. Responsibilities of this Office would include the management

,planning, support and analysis functions, administrative support operations, ADP

activities, and operations and program liaison activities, including implementation of the

Board's Total Quality Management (TQM) program. In addition, the Board plans to

establish in FY 1993 an Office of Professional Training, which will have the responsibility

for providing training to both new and experienced attorneys at the Board in substantive

legal and medical areas, as well as training in keyboarding and the use of computer

software.

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MERIT SELECnON OF BOARD MEMBERS

Under the provisions of38 U.S.C. § 7101(b)(2)(A), members of the Board, other than the

Chairman, are appointed by the Secretary of Veterans Affairs, with the approval of the

President of the United States, based upon recommendations of the Chairman of the

Board of Veterans' Appeals. Board members are unique among federal employees at the

GS or GM-15 level in that theirs are the only such appointments that require Presidential

approval.

Although it is not required by law, all members of the Board are attorneys or physicians.

As will be discussed at length below, the Chairman will not recommend physicians to be

members of the Board in the future. The attorney members of the Board are selected

through a highly competitive process. Almost exclusively, they have been and will

continue to be drawn from the ranks of staff counsel to the Board, because the particular

expertise necessary to adjudicate appeals for veterans' benefits in an expeditious manner is

rarely found outside BV A. A Board member must have complete familiarity wi~h the

body of statutory, regulatory, and judicial authority applicable to the cases before it. In

addition, a Board member must acquire a solid background in the medical and other areas

of subject matter expertise necessary to adjudicate the wide variety of claims within the

Board's jurisdiction. In this manner, Board members are able simultaneously to produce

quality decisions in a timely fashion and in the requisite numbers. Without this expertise,

which only can be gained with years of experience on the job, the Board would be unable

to accomplish its mission satisfactorily. Staff counsel generally require from 7 to 10 years

experience before they are considered for selection as a Board member. The selection

process for the limited number of Board member openings is extremely competitive and

only the best and the brightest are selected. As selection of Board members is based solely

on merit, the political affiliation, if any, of the candidates is never a factor for

consideration.

HEARINGSBEFOREBVA

In the past, the Board conducted approximately 2,000 hearings per year, about 600 of

which were held at VA regional offices by traveling sections of the Board. The remainder

were held in the Board's offices in Washington, DC. These hearings are nonadversarial in

nature, pursuant to the Department's statutory duty to assist the appellant in developing

his or her claim, including claims which may be inferred or intertwined with those

currently on appeal but which have not been raised by the claimant. At the hearing,

testimony is taken under oath or affirmation and evidence or argument in support of the

claim is adduced. Under the Board's Rules of Practice, cross-examination of witnesses is

not permitted. However, as will be discussed below, the law as interpreted by the Court

requires the Board to weigh the credibility and probative value of all evidence on the

record, including testimony, in explaining the "reasons or bases" for its decision.

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

offices before a "traveling section of the Board." 38 U.S.C. § 7110. Previously, the

Board had provided such hearings on an ad hoc and discretionary basis. As of

8
September 30, 1991, there were 1,548 pending requests for hearings before a traveling

section of the Board. During FY 1991, the number of such hearings increased from the

past average of about 600 to 873. Requests for personal hearings before the Board

continued to grow in FY 1992. For example, in FY 1991, appellants requesting a BY A

hearing at a regional office could expect a wait of almost three years at some locations. In

response, the Board has acted to meet the increased demand for hearings and, at the same

time, address the challenge of providing hearings in a timely manner.

Single member hearings

In order to ameliorate this situation and to make the most effective use of the Board's

available resources, in January 1992, the Chairman directed that all BV A hearings,

whether held at regional offices or in Washington, DC, will be conducted by a single

member of the Board section deciding the appeal. A transcript of each hearing is prepared

for the record. The members of the section who were not present at the hearing

i

necessarily will defer to the assessment of the Board member conducting the hearing as to

the demeanor of witnesses at the hearing. Otherwise, as required by law, the Board's

decision will be rendered by a section of three members. Claimants who have been

afforded a single member hearing generally have reported that this format is less

intimidating and enables the claimant to have the complete, individual attention of the

presiding Board member. This procedural change also has reduced the wait for a BV A

hearing at regional offices.

This procedural change from the use of three member hearing panels, effectuated pursuant

to the Chairman's authority under 38 U.S.C. § 7102(b), also has enabled the Board to

schedule more frequent hearings at VA regional offices. BV A held 1394 hearings in

Washington, DC, and 1258 hearings in 52 VA regional offices in FY 1992, a significant

increase from the 1108 hearings held in Washington, DC and the 880 hearings held in VA

regional offices in FY 1991. During FY 1992, BV A revised its forms and a form letter to

more clearly demarcate hearings held by the Board and those held by regional office

personnel. The impact of these form revisions will begin to be felt in FY 1993. It is

anticipated that the demand for hearings by Board members at regional office~ will

increase. It is projected that, in FY 1993, the Board will schedule 2,964 BV A hearings at

regional offices and 3,450 hearings in Washington, DC.

REPRESENTA nON BEFORE THE BOARD

In cases in which a formal hearing is not practicable, argument may be submitted to the

Board. In FY 1992,27,916 written briefs on appeal were filed, primarily by

representatives affiliated with veterans service organizations. This reflects the continued

high level of appellate representation provided by veterans service organizations. There

was, however, a slight increase in representation by attorneys. For decisions entered in

FY 1992, 87 percent had representation by one of the accredited service organizations, 2.4

percent had representation by an attorney or agent and 10.6 percent had no representation.

For decisions entered in FY 1991, 89.2 percent had representation by an accredited

9
service organization, 1.6 percent had representation by an attorney or agent, and 9.2

percent had no representation.

IMPACT OF JUDICIAL REVIEW ON BV A APPEALS ADJUDICA nON

Although the Court was initially established in November 1988 by the VJRA, the effects

of judicial review began to impact the system only in the last quarter of calendar year

1990. The impact of judicial review has been and will continue to be widespread and

profound. In short, judicial review has dramatically changed the VA claims adjudication

process. Because the interpretation of the law is changing on almost a daily basis with

each new precedent decision of the Court, the Board is required to carefully and

continually monitor the state of the law. The Court's decisions, rules, and procedures have

resulted in significant changes in the duties and functions of the Board and its members.

They have fundamentally altered the structure and content ofBV A decisions and the

process by which those decisions are made. Court decisions have changed the i

composition of the Board section responsible for rendering the decision, virtually

eliminating the role of the physician-adjudicator. Moreover, Court decisions have greatly

expanded the BV A's workload, both because of the need to comply with the legal and

factual analysis mandated by the Court and the increase in case volume resulting from the

readjudication of cases remanded by the Court to BV A and those remanded by BV A to

the Veterans Benefits Administration (VBA) to comply with the Court's requirements,

which are later returned to the Board for readjudication.

Adjudication prior to the VJRA

In the past, BY A decision making tended to be result-oriented and informal in approach,

tone, and content. The process was viewed as entirely benevolent and non-adversarial in

nature. Board members relied on their own expertise, which was gained from many years

of evaluating benefits cases, as well as the particular expertise of the physician Board

member of the panel. This enabled the Board, on the whole, to reach compassionate and

fair determinations with the degree of expediency necessary to issue over 45,000

individual dispositions in FY 1991.

Prior to the institution of judicial review, all that was required by law was a decision

containing findings of fact and conclusions of law. While the decision almost always

included a discussion of the rationale for the detennination, such explanations were usually

brief, seldom contained potentially embarrassing commentary that might reflect on an

appellant's or witness' credibility, and, except in the more medically complex cases, did not

cite specific medical texts or treatises in support of the conclusions on medical issues.

"Generally accepted medical principles" was a frequently used phrase to explain the denial

of a requested benefit. Attorney Board members often were guided in their analyses of the

medical aspects ofa case by the expertise of the physician member of a Board settion.

Generally, the Board's emphasis was on reaching a just and correct result, rather than

providing a comprehensive explanation of the basis for that decision or a discussion of the

10
relative probative value of each item of evidence. This approach is no longer permissible

in the era of judicial review.

Some landmark decisions of the Court

Judicial review has resulted in lengthier and more complex BV A decisions. While a

comprehensive analysis of the spectrum of the Court's decisions will not be attempted

herein, a discussion of several important precedent decisions will provide some

appreciation of the Court's impact. The Court's landmark decisions include: Gilbert v.

DelWinski, 1 Vet.App. 49 (1990), which interpreted the amendment of38 U.S.C.

§ 7104(d)(I) by the VJRA, to require the Board to include the "reasons or bases" for its

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

decision format inadequate under the new statutory standard; Littke v. DelWinski, 1

Vet.App. 90 (1990), which 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) when the appellate record is deemed

inadequate; Manio v. DelWinski, 1 Vet.App. 140 (1991), which interpreted 38 U.S.C.

§ 5108, to require a different standard of review than that formerly used in consideration

of claims which had previously been denied; and Colvin v. DelWinski, 1 Vet.App. 171

(1991), which held that the Board may consider only independent medical evidence to

support its findings.

Each of these landmark decisions has been followed by later decisions refining these

opinions, which have required both the readju,dication of additional Board decisions and

the continued revision of the Board's decision making process. For example, in FY 1992,

the Court extended the application of its analysis in Mania to a gamut of other types of

cases where VA had not previously been required to readjudicate the claim based on the

entire record. In Fluharty v. Derwinski, 2 Vet.App. 409 (1992), the Court held that, once

a claim for a total rating based on individual unemployability has been reopened, the Board

must evaluate the claim in light of all the evidence, both new and old.

In Douglas v. Derwinski, 2 Vet.App. 103 (1992), the Court held that, pursuant to the

Department's duty to assist the claimant, BV A must consider all statutory provisions or

regulations that may be potentially applicable to a claim, even though such legal authority

was not raised by or on behalf of the appellant. This decision requires not only that the

Board be intimately familiar with the full range of V A laws and regulations, but that the

Board, in its decision, explore every "blind alley" in order to explain why a potentially

applicable authority does not apply in a given case. The Douglas decision also suggested

that the procedural requirements of38 C.F.R. Part 3, which previously were considered

applicable only to VBA, applied to BV A.

In Tobin v. Derwinski, 2 Vet.App. 34 (1991), the Court altered VA's interpretation of the

concept of secondary service connection. Prior to this decision, VA had limited Ii grant of

secondary service connection to cases in which it was shown that a service connected

disability caused the disability for which service connection was being sought. In Tobin,

the Court concluded that, where a service connected disability merely aggravated, but did

11
not cause, a preexisting disorder, secondary service connection may be established for

that disorder. This decision adds additional complexity to the Board's analysis of these

generally complex cases.

Several decisions also have added significantly to the scope and depth of analysis the

Board must apply and explain in its decisions. For example, in Roberts v. Derwinski,

2 ,Vet. App. 387 (1992) and Brown v. Derwinski, 2 Vet.App. 444 (1992), the Court

markedly expanded the analysis that BV A must apply in appeals involving entitlement to

non-service connected pension benefits. In the past, the Board was limited to the ultimate

question of whether or not an eligible claimant was permanently and totally disabled.

Under Roberts and Brown, BV A is now required to consider the propriety of the rating

assigned to each of the appellant's disabilities and consider his or her degree of permanent

and total disability under both a subjective and an objective standard.

Several decisions in FY 1992 continued to enlarge the scope of VA's burden in its duty to

assist a claimant in the development of a claim. In Ivey v. Derwinski, 2 Vet.App.'320

(1992), the Court held that, even if the evidence submitted is insufficient to reopen a

preViously denied claim, if it shows that the claim is well grounded, i.e., facially plausible,

the Department must then assist the claimant in obtaining evidence that may potentially

provide support for his or her claim. Thus, BVA must now require the development and

eventual adjudication of a claim which previously would have been subject to dismissal. In

Murincsak v. Derwinski, 2 Vet.App. 363 (1992), the Court placed additional obligations

on the Board to obtain and consider the records pertaining to the veteran's claim for Social

Security Administration benefits. In addition, BV A must attempt to obtain all current

treatment records where the evidence reflects that the appellant is receiving ongoing

medical care. The line of decisions typified by these cases will require additional review

and action to develop the claim by BV A before the record is deemed sufficient 10 render a

"final" decision in an appeal.

In a decision entered on October 6, 1992, Russell v. Principi, No. 90-396 (U.S. Vet. App.

Oct. 6, 1992)(consolidated with Collins v. Principi, No. 90-416) an en banc panel held

,that the United States Court of Veterans Appeals may review prior decisions of the Board

for "clear and unmistakable error" provided that: (1) there is a Notice of Disagreement

filed after November 18, 1988; (2) the claim is asserted at the Board level; (3) there was

no prior unappealed rating action by the agency of original jurisdiction or a decision of the

Board that denied a claim of ' 'clear and unmistakable error"; and (4) a timely Notice of

Appeal to the Court is of record. This decision promises to be far ranging in its impact,

although there remain many aspects of review by the Court of such claims that will require

clarification. As the Court has stayed in excess of forty cases pending resolution of this

consolidated case, further elaboration of the doctrine created by Russell and Collins may

be forthcoming soon.

It appears that the Court has created a vehicle by which an appellant or the accredi.ted

representative may achieve judicial review, with appropriate pleadings, of virtually any

adjudication entered by an agency of original jurisdiction at any time in the past without

presenting new and material evidence. This will enormously expand the universe of

Departmental decisions potentially subject to review by the Court. Moreover, the

12
adjudication of such claims will be extremely demanding on resources. The first step of a

review of a prior adjudication for "clear and unmistakable error" is to ascertain the state of

the evidence of record and the state of the law at the time the challenged decision was

entered. While determining the state of the record should not present excessive difficulties

in most cases, determining the state of the law and regulations at the time of old

adjudications will demand the investment of considerable additional time for legal

research. Where there are multiple prior adjudications which are alleged as erroneous, the

investment of time will be multiplied many times. These claims will also generate many

additional determinations that will be subject to judicial review on the state of the law, and

potentially the intent of prior provisions of the law and regulations, that otherwise would

be beyond the scope of review of the Court. A reversal of the prior adjudication on the

basis of ' 'clear and unmistakable error" will also create the potential for large retroactive

awards of benefits that will create a powerful incentive for the raising of this question in

many, if not all, cases appealed to the Board.

In summary, the statutory requirement that the Board section provide the "reaso,ns or

bases" for its decision necessitates that the Board articulate a clear and complete analysis

of its determinations on all material aspects of a case, including evaluations of the

credibility and probative value of each item of evidence. The Board must deal with a

series of legal analyses that have been imposed by changes in the law as interpreted by the

Court. These include the fulfillment of the Department's statutory duty to assist the

appellant~ the new technical analysis and broadened range of evidentiary consideration in

cases where the same benefit sought on appeal was previously denied by VA; and the

necessity of affording appellate consideration to new and additional issues, such as

ancillary, "inferred," and "inextricably intertwined" issues. In addition, the Court has

required that the Board provide the "reasons or bases" for each of its determinations as to

subissues, including the relative weight of items of evidence, evaluation of credibility, and

questions concerning the burden of proof

Colvin and the Role of the BV A Physician

The Court has held that the Board can no longer base its decision on its own_medical

expertise, including that of a physician serving as a BV A member, but must rely upon

"independent" medical evidence on the record in support of the determination reached.

This requires that Board members provide a thorough explanation of all medical principles

relied on, with discussion of and citation to independent authority, such as medical

treatises, texts, journals, and epidemiological studies. In addition, the Board increasingly

has been required to obtain additional medical information and/or expert opinion on the

record from sources within and outside the Department. Furthermore, this line of cases

has altered the manner in which BV A physicians are employed in the decision making

process. In the course of his confirmation hearing in February 1991, the Chairman stated

that he questioned whether the particular expertise ofBV A physicians would be more

effectively utilized in the role of an evaluator and analyst, rather than as an adjudicator.

He further indicated that he would examine the issue in depth if he were confirmed and

appointed Chairman. Later, in Colvin, the Court held that the Board must consider only

independent medical evidence to support their findings rather than provide their own

13
medical judgment in the guise of a Board opinion. The Court has held that the traditional

use of physicians as adjudicators, deciding cases on their own medical expertise, is

inappropriate. As a result, BV A is required to use its physician staff in other capacities,

such as providing advice, research, training, and internal quality review. To provide the

maximum flexibility, and in anticipation of Colvin and its progeny, three year terms of

office were recommended for each of the physician Board members appointed in the initial

round of appointments in FY 1991.

Colvin and other Court decisions have resulted in a significant increase in time spent by

BV A professional staff in performing legal and medical research. There is a constant need

to keep abreast of the almost daily changes in veterans' benefits law that are established by

decisions of the Court. The professional staffalso must be cognizant of the pertinent

caselaw of those courts that have appellate jurisdiction of the United States Court of

Veterans Appeals, the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme

Court. This requires Board members and staff counsel to engage in legal research to an

extent not previously required. Accordingly, the resources of the Board's Research Center

have been greatly expanded. The absence of Medical members within Board sections has

increased the responsibility of the Attorney Board members to analyze the medical

evidence with increased frequency and sophistication. In addition, the attorney staff must

independently recognize when additional development of the record is warranted,

particularly the need for expert medical opinion.

In addition, the Board has begun to utilize staff medical advisers to furnish advisory

medical opinions "on the record." The Board also continues to seek advisory medical

opinions from VA sources, including the Chief Medical Director, as well as from the

Armed Forces Institute of Pathology and independent medical experts, who usually serve

on the faculties of leading medical schooTS': In FY 1992, the Board requested 170

opinions from independent medical experts under 38 U.S.C. § 7109.

IMPACT OF JUDICIAL REVIEW ON TIMELINESS AND PRODUCTIVITY

The Board is required to alter its product continually in response to the Courtl~ decisions.

BV A decisions continue to evolve toward increasing complexity and comprehensiveness.

In addition, both the need for independent medical evidence on the record and the duty to

assist the appellant have resulted in a substantial increase in the number of decisions

remanded to regional offices by the BV A for further development or referred to

independent medical experts. While the extent of the change is not completely

quantifiable, it is clear that BV A decisions have taken and will continue to take

appreciably longer to prepare and process. Response time and decision productivity have

been degraded by the impact of changes in the law, as interpreted by the Court.

Compliance with the law necessitates achieving and maintaining standards of decision

quality at a level not contemplated prior to the enactment of the Act. As a result, BV A

decisions have become lengthier and more complex. Factors affecting the timeliness of

appellate processing include the development of the evidence as required by the

Department's "duty to assist" the claimant; compliance with the directives of the Court in

an increasing number of important decisions; the procurement of a greater number of

14
medical opinions and increased medical research by the Board and its staff; an increased

number of formal hearings before the Board, as well as increased time required for travel

for hearings at VA regional offices; and the requirements imposed by more formal Rules

of Practice. The average BV A processing time was reduced from 186 days in FY 1990 to

160 days inFY 1991. InFY 1992, however, it increased to 179 days. BVAresponse

time increased from 152 days in FY 1991 to 158 days in FY 1992. The total VA appellate

system average processing time increased from 498 days in FY 1991 to 519 days in FY

1992. It is projected that response time will increase to 287 days in FY 1993 (see Part II,

below).

Court decisions which have significantly affected timeliness and productivity

No decision of the Court has yet resulted in an improvement in decision productivity or

timeliness in the entire VA adjudication system. The Court is in the process of

constructing a body of veterans' common law. This has added to the complexity and

preparation time required for a BV A decision. For example, in Tobler v. Derwinski, 2

Vet.App. 8 (1991), the Court on reconsideration held that the applicable rulings,

interpretations, or conclusions of law contained in any of its decisions are binding on and

to be followed by the Department as of the date the Court's decision is issued. With the

repeal in August 1991 of the provision of38 U.S.C. § 7267 which provided that the

Court's decisions would become final 30 days after their issuance, and with the Court's

decision in Tobler, the Board now has no lag time in effectuating the decisions of the

Court. The Board must readjudicate cases currently in process in light of the decisions of

the Court beginning on the day each Court decision 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 those cases that are

affected by the Court's decision, cease adjudication of any cases affected by the Court's

decision until an analysis of the implications of the Court's decision is completed, and

readjudicate any affected cases at the Board in light of the Court's decision. This process is

particularly disruptive to the orderly administration of the Department's appellate

adjudication system.

-

Two examples of this impact on the process are Rowe v. Derwinski, 2 Vet.App. 176

(1992), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Decided in November 1991,

these cases 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 ofBV A out-processing, which had to be readjudicated. There

were also a substantial number of additional cases at earlier stages ofBV 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 cases in light of the Court's decision tb vacate

its earlier decision. The Court, in Bethea v. Derwinski, 2 Vet.App. 252 (1992),

established, inter alia, that decisions rendered by a single judge are binding on VA in that

case, but carry no precedential weight. Only a panel or en banc decision of the Court is

15
precedential in nature. Because single judge decisions (such as Rowe) are no longer

precedential, the Board is now not required to identify and rework a large number of cases

to comport with the analysis presented in such a decision. The Bethea decision, of course,

does not change the necessity for reprocessing cases affected by precedential decisions of

the Court (such as Schafrath).

An early trend in the Court's decisions remanding cases to the Board for readjudication in

light of decisional law promulgated after the issuance of the BV A decision on appeal to

the Court was the inclusion of a deadline for the issuance of a supplemental Board

decision. The Court from time to time has included specific orders to the Board to

complete an adjudicatory function within a specified number of days, regardless of its

complexity. Such deadlines result in unheralded time pressures on the entire BV A staff to

complete these decisions, including all necessary evidentiary development, within the time

prescribed by the Court. Additionally, the professional staff must attempt to compensate

for the effect of this disruption on the timely processing and administration of the many

other docketed cases awaiting appellate consideration. While the Court contin~s to

retain jurisdiction in a number of cases remanded to the Board, specific time deadlines for

the completion of administrative processing have become a rarity in recent months.

Another area in which the decisions of the Court have expanded both the complexity and

workload of the Board is in the reconsideration of prior BV A decisions. In the past, the

legal standard for reconsideration was whether the decision being reconsidered contained

"obvious error" of law or fact, correction of which would require a different

determination. In Boyer v. Derwinski, 1 Vet.App. 531 (1991), the Court held that, on

reconsideration, the Board must entirely readjudicate the case on a de novo basis, as if the

prior decision had never been entered.

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. Because of

the length of time between the initial decision of the regional office and a case arising on

appeal at the Court, the Court is reviewing decisions of the Board which were decided

before the Court issued many of the opinions which constitute the body of decisional law

which now binds the Department. This "retroactivity" standard has resulted in an

increased caseload because many BV A decisions are returned to BV A foJ readjudication

as the result of consensual or Court dictated remands. Furthermore, most of the cases

remanded by BV A to the field in compliance with the precedent decisions of the Court

will be returned to the Board with an expanded evidentiary record for review and

consideration in reaching the final determination. Both the decisions remanded by the

Court to BV A and those returned from the regional offices require readjudication by the

Board and result in an increased workload for BV A personnel and, necessarily, have

increased the already great pressures to maintain productivity and timeliness.

16
New productivity measurement standards for staff counsel

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 VA adjudicates appeals. Nevertheless, in the second quarter ofFY

1992, a Special Task Force, headed by the Vice Chairman and composed of staff counsel,

Board members, and members of the Chairman's staff was formed to study alternative

methods for measuring staff counsel performance, particularly in the element of

productivity. The Task Force has proposed a productivity measurement plan which will

enable the Board to rapidly adjust performance measuremento reflect changes in the law

resulting from decisions of the Court. The proposed system is currently being tracked

parallel to the current evaluation system. It is expected that the proposed system will be

sufficiently refined that it may be implemented at the start of the yearly perform~nce

evaluation period in April 1993. A review of the Board's productivity and timeliness

measurement standards and procedures will be instituted as soon as matters reach a point

where meaningful parameters can be established.

Revised standards for the measurement of decision timeliness and productivity

Currently, the measurement standards in effect yield statistics which do not present the

most accurate reflection of the Board's real productivity and timeliness. The current

system of statistics does not draw distinctions between classes of cases which have a

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

appellant is represented by a veterans' service organization require additional time for the

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

to the Board. This averaged approximately 42 days in early FY 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 hearing schedule, but the time is not included in the Board's

timeliness statistics. In cases in which a hearing is requested before the Board in

Washington, DC, the timeliness statistics do include time spent waiting for a place on the

hearing schedule.

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

and in the following tables indicate, to the extent possible, the timeliness and productivity

of the Board. 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.

17
FY 1992 Statistics

During FY 1992 BV A produced a total of33,483 decisions. This represents a significant

reduction from FY 1991, when 45,308 appellate decisions were produced. The reduction

is directly attributable to the Board's implementation of the precedent decisions of the

Court. In particular, decisions of the Court in FY 1992 concerning claims for increased

disability ratings and for non-service-connected pension benefits have required a

substantial increase in the time needed to produce a decision in these areas. These

categories of cases constitute a significant portion of the Board's caseload. Moreover, the

Court's decisions concerning the VA's "duty to assist" the claimant under 38 U.S.C. §

5907 and the necessity of applying each Court decision from the date of its issuance to all

other cases in the process of adjudicative or appellate review have led to a marked

increase in the percentage of cases returned to regional offices. For example, in FY 1991,

29.7 percent of the cases were remanded to VA regional offices. In FY 1992, 50.5

percent of the cases were remanded for further action. A breakdown of the disposition of

the Board's decisions by category of appeal is provided below.

Category Total Allowed Remanded Denied Other

Disability compensation 27339 4467 14031 8586 255

Disability pension 1597 162 950 465 20

Medical 441 35 180 208 18

Insurance 48 3 7 37 1

Death 1893 189 775 901 28

Training 424 27 163 221- 13

Waivers 652 III 341 184 16

Loan guaranty 529 138 250 136 5

Reconsideration 221 71 110 39 1

Character of discharge 69 8 17 42 2

Miscellaneous 270 37 93 127

.~

Totals 33483 5248 16917 10946 372

18
Appellate Processin2 Cate2ories

DAYS

FY 1991 FY 1992

Notice of Disagreement to Statement of the Case 58 57

Statement of the Case to Substantive Appeal 59 59

Substantive Appeal to the BY A 185 194

Processing Time through the BV A 160 179

Average Remand Time Factor -1Q --1Q

.

Total Processing Time All Categories 498 519

19

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BV A'S NEW RULES OF PRACTICE AND ATTORNEY FEE ISSUES

As a result of changes in the law, Court decisions, and the promulgation of the Board's

revised Rules of Practice in early 1992, Board members and members of the Chairman's

staff increasingly have become involved in ruling on motions before the Board, including

those involving attorney fee agreements and the payment of attorney fees from accrued

past due benefits. Currently, the Rules of Practice provide for 17 different motions or

"requests." This will result in a considerable expansion of the responsibilities of both the

Board members and the Chairman's staff.

Nagler v. Derwinski, 1 Vet. App. 297 (1991) and Matter of Smith v. Derwinski,

1 Vet.App. 492 (1991), in essence, invalidated many of the Board's procedures and some

of its Rules of Practice regarding the adjudication of the reasonableness of attorney fees

and related matters. BV A has been required to establish alternative procedur~ and to

amend its Rules of Practice. At present, both BV A and the Veterans Benefits

Administration (VBA) have procedures in place for the processing and adjudication of the

issues of the reasonableness of attorney fee agreements under 38 U.S.C. § 5904(c) and

whether VA may make payment of attorney fees directly from accrued past due benefits

under 38 U.S.C. § 5904(d). The Board is currently in the process of reviewing its forms,

procedures, and regulations to comply with the amendment of38 U.S.C. § 5904 (c) by

Pub. L. 102-405, effective October 9, 1992. This amendment creates a different set of

criteria for eligibility to charge fees in connection with any proceeding before VA in a case

arising out of a loan made, guaranteed, or insured under title 38, chapter 37 of the United

States Code.

The Board's Rules of Practice are undergoing extensive revision in light of the precedent

decisions of the Court and the Board's experience in implementing its new Rules of

Practice. It is planned that substantial revisions of the Rules will be promulgated over the

next few years.

AUTO MA nON INInA TIVES

The Board's on-going automation project is intended to increase the efficiency of its

operations and thereby offset, to the extent practicable, the adverse effects of judicial

review on BV A productivity and timeliness. In FY 1992, over 80 personal computers

were installed for use by the Board's Professional and Administrative Services. Office

automation was introduced into two additional Board sections for a total of four

automated Board sections. Automation of at least six additional Board sections is slated

for FY 93. A computer training room was designed and outfitted and became operational

in late FY 1992. It provides a forum for training the Board's professional, technical, and

administrative employees. In addition, the Board developed a detailed design of an

enhanced system to replace BV A's Veterans Appeals Control and Locator System

(V ACOLS). The new system, destined for the NOA V A computer environment, will

greatly improve the efficiency of case tracking and information management at the Board.

21
TRAINING

The ultimate effect of judicial review on BV A, as well as on the entire VA benefits

adjudication system, is not yet quantifiable. However, it is clear that the Board's work

product has already become increasingly detailed, thorough, and complex. In the era of

judicial review, the focus of the Court's decision is on BV A's decision making process at

least as much as on the ultimate determination reached by the Board. It is safe to say that,

as a result of the Court, the responsibilities of the Board and its professional and

administrative staff have been magnified enormously.

In response, the Board has introduced a new approach to the training and professional

development of staff counsel. A centralized training program providing intensive program

education and computer training has been established for attorneys beginning their careers

at the Board. The training program includes medical lectures, computer and

word processing courses, and attendance at the Veterans Benefits Administration's

Adjudication Academy, located in the Baltimore, Maryland area. ,

TOTAL QUALITY MANAGEMENT (TQM) INITIATIVES

The Board's Total Quality Management activities in FY 1992 continued to support the

Chairman's Standing Order to "Accomplish the Mission" (Decide all cases appealed to the

Secretary with timeliness, consistency and quality), and "Take care of our people."

Cross-functional teams have been established to deal with the ongoing process of finding

better ways of accomplishing the Board's mission. Teams have worked on "computerassisted" decision writing; developing a glossary of frequently used language; ensuring

consistency in citations; preparing Congressional correspondence; expanding the Board's

offices to the sixth floor of the Lafayette building; measuring staff counsel production and

quality; and revising performance standards for employees in the Administrative Service.

Realizing the importance of two-way communication, informal meetings are held on a

regular basis to encourage feedback from everyone at the Board. Regular meetings with

the Chairman's staff, the Chief members of the Board, Convocations of all Board

members, and meetings with all staff counsel are held on a periodic basis. The Kenneth E.

Eaton Board Room, which was established in 1991, provides the Board with an ideal

location for such professional interaction. An employee newsletter is published quarterly

to announce promotions, awards, and other employee achievements and to highlight

events. Employees are encouraged to network among themselves by getting involved in

one of the Board's softball leagues or by attending quarterly luncheons with scheduled

speakers. Award ceremonies are held throughout the year to recognize the efforts of the

Board's employees.

To support the Department's TQM effort, the Board's TQM Coordinator served for three

months on the Secretary's Examination Board for the Robert W. Carey Award and has

also been on several VA-wide TQM committees. In February 1992, a presentation was

22
made to the Deputy Secretary and VA's TQM coordinators on the Board's TQM

accomplishments.

The training and development of the Board's most important resource, its employees, is an

ongoing TQM process. A series of nine refresher seminars was conducted for different

procedures within Administrative Service. Medical lecture seminars are held on a regular

basis, and other subject matter briefings are conducted periodically. The Board was

fortunate to have two of its employees attend the Quality Leadership for Managers Course

at Wright-Patterson Air Force Base. Employees of the Board also attended the Federal

Quality Institute's National Conference and the Federal Executive Institute.

As mentioned earlier, the Board has developed a state-of-the-art training room to conduct

automation training. Classes will be held for attorneys and staff on the various NOA V A

Microsoft products as well as keyboarding skills. Since WANG training is no longer

supported by the V AC Training Center, the Board will provide training in-house rather

than go through the expensive process of sending employees out for training. .

In FY 1992, the Board had the opportunity to briefmany of its "customers." The Board

was visited by both the Judges and law clerks of the u.s. Court of Veterans Appeals, as

well as representatives of the Office of the General Counsel, the Majority and Minority

Staffs of the Senate and House Committees on Veterans' Affairs, veterans' service

organizations, and other VA agencies. The "Triad," consisting of members of the Office

of the General Counsel, Veterans Benefits Administration (VBA), and the Board,

continues to meet regularly to ensure proper communications and organizational response

to Court decisions. The Board also regularly participates in VBA's "hotline" telephone

link with adjudication personnel in the VA regional offices. "VSO Forums" continue to be

held quarterly where veterans' service organization representatives meet with the

Chairman and Senior Staff to discuss issues applicable to the appellate review process.

CORRESPONDENCE AND CONGRESSIONAL LIAISON ACTIVITIES

The Board responds directly to requests for information and assistance from veterans,

their representatives, and Members of Congress and their staffs. Most of these requests

are handled by the Board's Administrative Service and the Office of the Chairman.

Administrative Service answers approximately 27,600 telephone inquiries per year from

Members of Congress, their staffs, and others. The Office of the Chairman answers about

3,000 telephone inquiries annually. The Chairman provided 4,430 written responses to

Congressional inquiries in FY 1992. In addition to the above noted correspondence, the

Chairman responds to letters written by claimants and other interested parties to the

President, the Secretary, and other government officials.

The increase in decision processing time has resulted in an increase in the number of

telephone calls and letters from Members of Congress, appellants, and otherinter~sted

parties. Because of the increasing complexity of the law, as interpreted by the Court,

responses to such inquiries have become far more complex and time consuming and, in

many instances, require that the cases be withdrawn from active appellate consideration

23
while a response to the inquiry is being prepared. The rapidly evolving state of the law

has created the need for continual retraining of Administrative Service employees who

respond to these inquiries.

24
PART II

ADDITIONAL INFORMATION PROVIDED PURSUANT TO 38 U.S.C. § 7101(d)(2), (3)

1. The following infonnation pertaining to preceding fiscal year(s) is required by

38 U.S.C. § 7101(d)(2):

Number of cases appealed to BV A during FY 1992: 38,229

b. Number of cases pending before BVA at the start ofFY 1992: 17,235

Number of cases pending before BV A at the end ofFY 1992: 21,981

c. Number of cases filed during each of the 36 months preceding FY 1993:

Estimated Number of New

Notices of Disagreement

Received in the Field

Number of Appeals

Received at the BY A

MQ.!!!h

October

November

December

January

February

March

April

May

June

July

August

September

~~~

3,665 4,327 4,156

3,255 3,188 3,657

3,233 4,488 5,280

3,188 3,248 2,102

3,360 3,231 2,958

3,652 3,464 4,356

2,870 3,524 4,189

2,650 3,525 3,397

2,857 3,302 4,398

3,335 3,888 2,942

3,451 3,599 2,847

2.713 3.309 3.526

EY..2lEY...'llfY..2Q

3,694 5,787 6,113

6,638 5,392 5,855

6,210 4,795 4,821

6,474 5,578 5,576

5,777 5,254 4,770

6,472 5,993 5,778

5,978 6,289 5,115

5,506 5,960 5,773

5,900 5,483 5,510

5,939 5,685 5,684

5,525 5,755 5,948

5.815 5.471 -5.224

FY Total 38,229 43,093 43,808 69,928 67,442 66,127

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 Elapsed

Time Interval Re~nsible Pa!1Y Processing Time

Notice of Disagreement Receipt Field Station 57 days

to Statement of the Case Issuance

Statement of the Case Issuance 59 days

to Substantive Appeal Receipt

Appellant

25
Substantive Appeal Receipt to

Certification of Appeal to BV A

Field Station 194 days

Receipt of Certified Appeal to

Issuance ofBV A Decision

BVA 179 days

Average Remand Time Factor Field Station 30 days

e. Number of members of the Board at the end ofFY 1992: 64 members

Number of professional, administrative, stenographic, clerical, and other personnel

employed by the Board at the end of FY 1992: 413 employees for a total of 411

FTE.

2. The following projections pertaining to the current fiscal year and the following fiscal

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

a. Estimated number of cases that will be appealed to the BV A

Fiscal Year 1993:

Fiscal Year 1994:

45,000

45,000

b. Evaluation of the ability of the Board (based on existing and projected personnel

levels) to ensure timely disposition of such appeals as required by 38 V.S.C. § 7103(d):

(1) Background on BV A Timeliness Projections. The indicator used by the BV A

to forecast its future timeliness of service delivery is BV A response time on appeals. By

taking into account the Board's most recent appeals processing rate and the number of

appeals that are currently pending before the Board, BV A response time projects the

average time that will be required to render decisions on that same group of pending

appeals. BV A response time is computed by first determining the BV A's average daily

appeals processing rate for a recent given time period. This is determined by dividing the

number of appeals decided by the calendar day time period over which those appeals were

dispatched. BV A response time is then computed by dividing the number of appeals

pending before the Board by the average daily appeals processing rate. As an example,

BV A response time for FY 1993 is computed as follows:

Estimated 37,475 Decisions in FY 1993 +'365 Days = 102.67 Decisions per Day

29,506 Appeals Pending before the BVA (end ofFY 1993) + 102.67 Decisions per Day =

287 Day Response Time on Appeals

(2) Resuonse Time Pro_iections: Based upon existing and projected levels of

resources, the estimate ofBV A response time, as given in the Board's budget submission

for FY 1994, is 287 days for FY 1993 and 277 days for FY 1994. These response time

projections are contingent upon the appeal receipts estimates for FY 1993 andFY 1994

shown in paragraph 2a of this part, above.

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The Board anticipates that the precedent decisions of the United States Court of Veterans

Appeals will continue to impose additional requirements for case analysis and

development. No decision of the Court, to date, has shortened the appellate process.

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

require the Board to readjudicate a large number of cases that had already been

adjudicated, but not yet dispatched from the Board. For example, in FY 1992, Schafrath

v. Derwinski, issued in November 1991, concerned cases involving claims for increased

ratings. It affected approximately 60 percent of the Board's decisions and required the

expenditure of approximately 20 percent more time by the Board's staff counsel.

Similarly, four decisions issued between April and June 1992 (Talley v. Derwinski,

Roberts v. Derwinski, Abernathy v. Derwinski, and Brown v. Derwinski) required

readjudication of cases involving claims for pension benefits. This affected approximately

5 percent of the Board's cases and significantly lengthened the required analysis and

development in these decisions.

In addition, in FY s 1991 and 1992, the Board promoted 14 of the Board's senior attorney

staff to fill the complement of Board membership. The Board was unable to replace these

attorneys during FY 1992 due to FTEE limits. Therefore, fewer Board counsel were

available to prepare tentative decisions for review by Board members. In FY 1993,

additional new associate Board counsel will be added. However, they will not be able to

produce tentative decisions as quickly as experienced counsel. Moreover, due to the

institution of hearings by single Board members, both in Washington, DC, and at V A

regional offices, and the increased number of hearings held by members of the Board at

VA regional offices, Board members expended proportionally less time in case

deliberation while traveling and presiding at hearings in FY 1992.

Another factor that increased BV A response time was the necessity to stay adjudication of

certain classes of cases when the Department's interpretation of the law differed from a

holding of the Court. For example, appeals affected by Gardner v. Derwinski (claims for

benefits under 38 U.S.C. § 1151) have been stayed pending resolution of an appeal from

this decision of the Court of Veterans Appeals (the Court). This stay is consistent with a

line of decisions from the Court, beginning with Tobler v. Derwinski in December 1991.

Cases that are held at the Board pending resolution of appeals from decisions of the Court

will increase the Board's response time. Cases that are returned to the V A regional offices

will not increase BV A response time.

Estimates of the Board's future timeliness and productivity can only approximate the

impact of the fact that the Board's rate of remanding cases to the regional offices steadily

increased through the latter part ofFY 1991 and averaged 50.5% for FY 1992. The

majority of these cases will eventually be returned to the Board for adjudication, but the

Board cannot anticipate when the requested development will be completed. The

estimates also do not include the additional cases returned annually to the Board by the

Court of Veterans Appeals for readjudication. This number has also been rising.

.

It is anticipated that these trends of the past fiscal year will continue: (1) the directives of

the Court will continue to require the Board to expend additional time, effort, and

resources in producing appellate decisions; (2) increased demands for hearings will

27
diminish the time which Board members may dedicate to case deliberation; (3) the Board

will continue to stay the adjudication of certain classes of cases pending resolution of

appeals from decisions of the Court of Veterans Appeals; (4) the Board will continue to

remand a large proportion of cases to the VA regional offices for further development;

and (5) the Board will continue to receive cases remanded for readjudication from the

Court of Veterans Appeals. In addition, the Board's depleted pool of experienced Board

counsel will be replaced by inexperienced associate Board counsel, who will not be able to

prepare tentative decisions for the Board's review as efficiently as the more experienced

attorneys. These trends will likely continue to slow decision production, but it is unclear

to what degree. In addition, unanticipated factors may arise to affect decision production.

However, the estimated number of appellate decisions to be produced in FY 1993 was

calculated upon the assumption that the Board can produce decisions at the same rate per

FTEE as in FY 1992.

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 aud

productivity. There are currently insufficient data and experience to enable accurate

predictions to be made of the Board's timeliness and productivity. Initial experience,

however, indicates that the Board's timeliness and productivity have been adversely

affected, at least in the initial stages of the Court's existence.

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