DEPARTMENT OF VETERANS AFFAIRS

Chairman, Board of Veterans' Appeals

Washington DC 20420

December 17, 1993

Ron. Jesse Brown

Secretary of Veterans Affairs

Department of Veterans Affairs

Washington, DC

Dear Mr. Secretary:

I respectfully present for your submission to Congress the Report of the Chainnan, Board

of Veterans' Appeals, for Fiscal Year 1993. Parts I, ll, and ill of this report are intended to

provide an overview of the Board and its activities during fiscal year (FY) 1993 and the projected

activities of the Board for FY 1994, as is mandated by 38 V.S.C. § 7101(d)(I). The specific

infonnation required by 38 V.S.C. § 7101(d)(2) and (3) is contained in Part IV 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 effectively to develop

systems to meet these challenges.

May I take this opportunity to thank you for your leadership, commitment, and invaluable

assistance in enabling the Board to meet its changing responsibilities.

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.

I'

Charles L. Cragin

Enclosure

Very respectfully,
TABLE OF CONTENTS

PART L THE BOARD OF VETERANS' APPEALS

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INITIATIVES mSTORICAL ORGANIZATION COLVIN SELECTION Legislative Administrative 193388 AND to OF FOR OVERVIEW 198893 THE BOARD Initiatives OF THE ROLE Initiatives THE FUTURE MEMBERS BOARD OF THE BY A PHYSICIAN &.

PART n. REMARKS OF THE CHAIRMAN AT THE SECOND JUDICIAL

CONFERENCE OF THE U. S. COURT OF VETERANS APPEALS

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INTRODUCTION JUDICIAL Th.1PACT Th.1P ACT Remands BV "Due "Duty Attorney OF OF A's REVIEW Process" JUDICIAL to JUDICIAL Use Assist" Fee of of Cases Agreements Mdical -AN Remands in REVIEW REVIEW to the mSTORICAL VA Evidence Development Regional ON ON BV TIMELINESS Offices PERSPECTIVE A of APPEALS Claims AND ADJUDICATION PRODUCTIVITY..

"Certified Lists" of Evidence Included in BV A Decisions ~...~

AUTOMATION

III
COMPUTERIZED SINGLE MEMBER RESEARCH HEARINGS CAPABll..ITIES AND "TRAILING DOCKET" 35

EFFECTS 60TH OTHER " ADVANCE ANNIVERSARY APPROACH MEASURES OF DOCKETING" JUDICIAL TO TO OF SCHEDULING REVIEW IMPROVE THE OF APPEALS BOARD PRODUCTIVITY PERSONAL TO THE BOARD HEARINGS : 35

37

37

38

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PART m FY 1993 STAnSnCAL DATA

TABLES AND GRAPHS.. 41

PART IV. ADDffiONAL INFORMA nON PROVIDED PURSUANT TO

STATUTORY REQUIREMENTS

47

48

49

38 U.S.C. § 7101(d)(2) """"""..".."""."""""

ESTIMATES 38 U.S.C. § 7101(d)(3) OF FUTURE TIMELINESS AND PRODUCTIVITY , 

1V
PART I

THE BOARD OF VETERANS' APPEALS

The Board of Veterans' Appeals (B VA or Board) is the component of the Department

of Veterans Affairs (V A) that is responsible for entering the final decision on behalf of the

Secretary in each of the many thousands of claims for entitlement to veterans' benefits that

are presented annually for appellate review. The Board's mission, as set forth in 38 U.S.C.

§ 7104(a), is "to conduct hearings and consider and dispose of appeals properly before the

Board in a timely manner" and to issue quality decisions in compliance with the

requirements of the law, including the precedential decisions of the United States Court of

Veterans Appeals (the Court). The Board renders final decisions on all appeals for

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

increased disability ratings, total disability ratings, pensions, insurance \>enefits,

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. In addition, pursuant to 38 U.S.C. § 5904, the

Board is responsible for deciding matters concerning fees charged by attorneys and agents

for representation of veterans before the Department.

HISTORICAL OVERVIEW

1933 to 1988

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 on 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 1930s, the Board established procedures, guidelines, and precedents,

many of which eventually were codified as regulations.

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

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

workload was greatly increased in the aftermath of World War ll. For example, in 1949

the Board rendered almost 70,000 decisions. These decisions generally were simple,
short, and concise. The 1950s were characterized by the implementation of organizational

and operational programs to achieve more efficient case management.

During the 1960s, 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 appeals regulations 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 1970s 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 BV A 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 the number of

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. This is still the authorized strength level today. The number of appeals initiated

remained in the 60,000s until FY 1989 when a peak of 74,291 was reached. This figure

returned to the 60,000s in the early 1990s, with 65,676 notices of disagreement being filed

in FY 1993. Appeals carried through to completion and certified to the Board for review

have decreased somewhat in the early 1990s, going from almost 44,000 in FY 1990-to just

over 38,000 in FY 1993.

1988 to 1993

The passage of the Veterans' Judicial Review Act (VJRA), Pub. L. 100-687 (Nov. 18,

1988), which established the U.S. Court of Veterans Appeals, has been the most

revolutionary change in the adjudication system since the inception of the Board in 1933.

Decisions by the Court have had a profound impact on the Board as it actively seeks ways

to adapt to new interpretations of veterans' law and designs and implements new

procedures required to meet the rapidly evolving requirements of the law. Few, if a.ny,

decisions of the Court have resulted in an improvement in decision productivity or

timeliness in the VA adjudication system.

2
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 medical opinions

and increased medical research by the

Board and its staff an increased Compliance with the Court's directives has increased the

b f ~

I h '. b ~ h amount of time required to process appeals.

num er 0 lorma eanngs elore t e

Board, as well as increased time required for travel for hearings at VA regional offices; the

requirements imposed by more formal Rules of Practice; the added responsibilities of

attorney fee agreement processing and review; the readjudication of cases remanded by

the Court to the Board and those returned from VA regional offices to the Board

following completion of development requested by the Board on remand; and, in FY

1994, the necessity of including a certified list of all items of evidence considered by the

Board in reaching each final decision, pursuant to the Secretary's recent instruction. BV A

response time increased from 139 days at the end of FY 1991 to 240 days for FY 1992,

and to 466 days for FY 1993.

Additionally, the VJRA made a hearing before "a traveling section of the Board" a

matter of statutory right. This led to an increased demand for such hearings which the

Board has made considerable progress in meeting. Six times as many field hearings were

conducted during FY 1993 than were conducted in FY 1983.

The VJRA removed an historic $10 limitation on the fees which may be charged by

attorneys-at-law and claims agents who represent VA claimants. The Act gave the Board

original jurisdiction to review agreements for the payment of such fees. Thus far,

however, the private bar has shown relatively little interest in the practice of veterans' law.

Illustrations abound of Court decisions that have had a significant impact on'the VA

adjudication process. For example, in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the

3
Court directed that the Board consider every potentially applicable regulation in its

decision, regardless of whether it was raised by the appellant or considered in the field. In

Bernard v. Brown, 4 Vet.App. 384 (1993), and Thurber v. Brown, 5 Vet.App. 119

(1993), the Court imposed significant new procedural steps before a final decision by the

Board may be issued.

The Court held in Tobler v. Derwinski, 2 Vet. App. 8

(1991), that its decisions are binding on VA as of the

date they are issued. With the repeal in August 1991 of

the provision of 38 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 has no lag time in effectuating the decisions

of the Court. This often requires the Board to stop the

flow of cases, identify those cases that are affected by

the Court's decision, and readjudicate them. .

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 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.

Judicial review has resulted in a

growing body o/veterons' common

law.

The Court often reviews decisions of the Board which were decided before the Court

issued an important binding decision in the area of law involved. Consequently, many

decisions are returned to the Board for readjudication. Furthennore, because of Court

decisions that are issued between the time a VA field adjudication is made and the time it

comes before the Board on appeal, the Board's own remand rate has been about twice its

historic level for the past two fiscal years. Both the decisions remanded by the Court to

the Board and those returned from the regional offices after the Board has remanded them

require readjudication by the Board and result in an increased workload.

Other decisions by the Court, particularly those interpreting the requirement of

38 V.S.C. § 7104(d) that the Board's decisions include supporting "reasons or bases,"

have had a profound impact on the way that the Board adjudicates cases and on the

historically nonadversarial nature of Board proceedings. The result of the Court's

decisions in cases like Murphy v. Derwinski, 1 Vet. App. 78 (1990), and Colvin v.

Derwinski, 1 Vet.App. 171 (1991), is that the Board can no longer decide cases on the

basis of the medical expertise of its members, but must rely solely on the evidence of

record. Cases like Jones v. Derwinski, 1 Vet.App. 210 (1991), have required a candid

assessment of the credibility of lay testimony not in keeping with the nonadversarial .

approach which has historically characterized VA proceedings. Decisions like McGinnis

4
v. Brown, 4 Vet.App. 239 (1993), and many others require that the Board also be more

technical and "legalistic" in its approach to decision writing.

The Court has continued to expand the reach of its jurisdiction in decisions like

Russell v. Principi, 3 Vet. App. 310 (1992), holding that the Court has jurisdiction to

review the Board's decisions about the existence of error in old adjudicative

detenninations, and Patterson v. Brown, 5 Vet. App. 362 (1993), in which the Court

concluded that it had jurisdiction to review denials of motions for reconsideration.

INITIA nVES FOR THE FUTURE

Administrative Initiatives

The Board has introduced several administrative initiatives to meet the challenges

resulting from judicial review in order to improve the service that it provides to veterans

and their families. These initiatives include the complete revision of decision analysis and

format (1991); the use of single member hearings as opposed to panel hearings (1992); the

introduction of a "trailing" hearing docket (1993); improvements in customer response

and response to Congressional and other inquiries (1993); and the consolidation of all

BV A employees in the Washington, DC, area in one building (1993). Ongoing measures

include the prompt dissemination of the Court's decisions within the Board and the

provision of guidance in response to individual Court decisions; an increase in the attorney

staff which prepares draft decisions; the institution of a formal, comprehensive training

program for staff counsel; the introduction of computer equipment to produce decisions

and track cases and other data; and the inclusion of staff physicians in quality review

activities.

In FY 1993, the Board introduced a procedure whereby all appellants are now immediately notified by letter when their appeals are docketed at BV A and are provided with

telephone numbers and mailing addresses for BV A points of contact in regard to any

questions they may have concerning their appeals. This procedure will enable VA to

provide better service to appellants and concomitantly reduce the overall processing time

for appeals.

The Board has introduced an ongoing, comprehensive training program for new staff

counsel, designed to insure that these counsel receive consistent and in-depth training.

During the period between October 1, 1992, and April 3O, 1993, the Board placed 49 new

attorneys in its training program.

Use of computer technology will greatly assist the productivity of Board personnel and

thereby help to alleviate the growing decisional response time. Between FY 1991 and the

end of FY 1993, over two million dollars was invested in new automation capacity for

BVA. By the end ofFY 1993, all BVA Board members and staff counsel had personal

5
computing tools at their disposal. As will be discussed later, BV A plans to continue to

integrate appropriate new technologies into its automation structure.

For many years prior to FY 1993,

Board personnel were dispersed in

several different buildings in the District

of Columbia, which resulted in significant

logistical problems, as well as difficul~ies

in communication and staff morale. One

of the most significant operational

improvements at the Board was achieved

with the consolidation of all BV A

employees (with the exception of the

Wilkes-Barre, Pennsylvania, transcription

unit) and veterans' service organizations

into one building. Consolidation i of

personnel, which was completed in

March 1993, has helped to facilitate

communication and to increase the

efficiency and economy of the Board's

internal operations. Internal

Use of computing tools by Board members and staff communication, essential for consistency

counsel expedites the appellate process. . 1.. m the app lcatlon 0 f 1aw, was a 1so

enhanced by the construction of the Kenneth E. Eaton Board Room. This facility has

enabled the Board to meet on a regular basis and share information.

Legislative Initiatives

In FY 1993, several pieces of legislation were proposed which would help the Board to

meet its goals of providing timely, high quality decisions in the face of a substantially

increased workload. Shortly after his appointment as Secretary of Veterans Affairs,

Secretary Brown began the process of consensus building that is essential to the

development and enactment of legislation to meet these challenges. On February 11,

1993, the Secretary and Deputy Secretary, together with the BV A Chairman and Vice

Chairman, representatives of the Office of General Counsel, and other Department

officials, met with representatives of the major veterans' service organizations and staff

members of the House and Senate Veterans' Affairs Committees for a frank and open

discussion of the alternatives. The most significant recommendation for change that

eventually was endorsed by most of the veterans' service organizations is to amend title 38

of the United States Code to authorize the Chairman to assign all Board determinations to

single Board members, except for detenninations on reconsideration. This change from

the historical three member panel, in itself, would result in a projected 25 percent increase

in productivity at the BV A organizational level and significantly reduce response time. .

Enlarged panels would continue to render decisions in cases on reconsideration.

6
Other significant proposals for legislative change include the elimination of the

statutory limitation on the number of Board members. Appointment of additional Board

members as needed would eliminate the 'bottleneck' in the appellate adjudication process

and increase the Board's flexibility in allocating resources to meet its expanding workload.

In addition, specific authority for the Chairman to decide motions in proceedings before

the Board and to decide matters relating to attorney fee agreements was recommended as

a means of enhancing the consistency of adjudication in these areas and increasing the

amount of time that Board members are able to devote to adjudication of appeals on the

merits. The proposed legislation would authorize administrative allowance of claims by

the Chairman and/or Vice Chairman based on difference of opinion or other equitable

concerns. This would restore the administrative allowance procedure that was in effect

prior to a May 1990 precedent opinion of V A's General Counsel, permitting the Board to

provide relief in cases in which the prior decision of the Board or originating agency was

legally correct but produced a harsh result. Other provisions of the Department's

legislative proposal include the clarification of statutory references to hearings contained

in Chapter 71 of title 38 of the United States Code and the expansion of the definition of

"hearings" to include teleconferenced and videoconferenced hearings.

These proposals and other measures to help put veterans first were embodied in the

draft bill entitled "The Veterans' Appeals Improvement Act of 1993," which was submitted

by the Secretary to the Congress in August 1993. This proposed legislation was

introduced in the Senate as S. 1445. The Secretary's proposed legislation \Vas also

incorporated as part ofH.R. 3400, entitled "The Government Reform and Savings Act of

7
1993." That legislation, which contains a modified version of the Department's initiative,

was recently passed by the House of Representatives.

ORGANIZA nON OF THE BOARD

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

38 of the United States Code. The Board's activities are directed by a Chairman, who is

"directly responsible to the Secretary," as provided by 38 U.S.C. § 7101(a). The

Chairman is appointed by the President of the United States with the advice and consent

of the Senate and serves for a term of six years. Pursuant to 38 U.S.C. § 7101(a), the

Board is authorized to consist of a Chairman, a Vice Chairman, and no more than 65 other

Board members. The Board is also authorized by § 7101(a) to have "sufficient" other

professional, administrative, clerical, and stenographic personnel as are necessary to

accomplish its mission. (An organization chart of the Board of Veterans' Appeals is

shown on page 10.) .

Members of the Board other than the Chairman, Vice Chairman, and Deputy Vice

Chairman occupy GS-15 positions. All members except the Chairman are appointed by

the Secretary, with approval of the President, based upon the recommendations of the

Chairman. They serve 9-year terms of office. Board members are the only federal

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

Prior to the imposition of term limits by the VJRA as a condition of employment, Board

appointments were not subject to a term of years. As provided by the VJRA, however,

the initial appointments to the Board are for equal numbers of appointments to terms of

three, six:, and nine years. The Chairman holds an Executive level position, and the Vice

Chairman and Deputy Vice Chairman are members of the Senior Executive Service.

BY A is organized into Professional and Administrative Services. The Professional

Service consists of the sections of the Board, Staff Medical Advisors, and the Chairman'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, recent changes in the law, as

interpreted by the Court, have altered the role of the physician in the VA adjudicatory

scheme. After their initial terms of appointment expire in July 1994, physicians will no

longer be recommended for appointment as members of the Board. At such time, all three

members of each Board section will be attorneys. However, as discussed below,

physicians will continue to play an important role in the operations of the Board, although

not as adjudicators.

A professional staff of eight or nine attorneys, referred to as staff counsel, are assign~d

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

8
each staff counsel for the preparation of a written tentative decision. The counsel submit

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

typically will review the record and revise the submission 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

Advisors, who provide medical research and training of staff counsel. In addition, a

medical evaluation of a case may be obtained from the VA Under Secretary for Health, the

Armed Forces Institute of Pathology, or an independent medical expert who is 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, and transcription services, as well as 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, hearing transcripts, and other documents are electronically communicated

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

frequently prepare draft decisions on computer work stations in the Board's Washington,

DC, offices.

In FY 1993, the Board's Administrative Service, the Office of the Special Assistant for

Management, and several other support groups were reorganized into a combined Office

of Analysis, Planning, and Management Operations. Responsibilities of this office include

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

information resource management and automation activities, including automation training

and technical support activities. Operations and program liaison activities are also

included, such as implementation of the Board's Total Quality Management (TQM)

program.

9
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SELEcnON OF BOARD MEMBERS

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

physicians. As mentioned above, no further appointments of physicians to the Board will

be made after their terms expire in 1994. The attorney members of the Board are selected

through a highly competitive process. A Board member must have complete familiarity

with the body of applicable statutory, regulatory, and judicial authority and 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. With very few

exceptions, Board members have been 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 most commonly found in this group. Staff counsel generally require

from 7 to 10 years of 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 candidates are selected. The

Board also continues to seek individuals outside the Board who have the requisite' level of

expertise to provide the efficient, high-quality service that veterans and their dependents

deserve. In FY 1993, for the first time in many years, an individual who served with the

VA Office of General Counsel, but who had no prior BV A experience, was selected to

serve on the Board and is currently awaiting Presidential approval of that appointment.

As selection of Board members is based solely on merit, the political affiliation, if any, of

the candidates is never a factor for consideration.

COL V1N AND THE ROLE OF THE BV A PHYSICIAN

The Court has held that the Board can no longer base its decisions on its own medical

expertise, including that of a physician serving as a BY 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 opiruon on the

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

has altered the manner in which BY 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 of BY 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

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

11
maximum flexibility, and in anticipation of Colvin and its progeny, 3-year terms of office

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

of appointments in FY 1991. When their terms expire in July 1994, physicians will no

longer be recommended for appointments to the Board.

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. The

absence of medical

members within Board

sections has increased the

..responsibility of' the Legal and medIcal research IS facilitated by the Boards Research Center.

attorney Boar d mem bers

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. To help meet this

need, the resources of the Board's Research Center have been greatly expanded. More

importantly, however, BV A physicians are increasingly utilized in the capacity of medical

advisors and trainers. They provide expert medical opinions "on the record" in appeals in

which such guidance is required. In addition, the role of the BV A staff physician in the

quality review process has greatly expanded.

The Board also continues to seek advisory medical opinions from VA sources,

including the Under Secretary for Health, as well as from the Armed Forces Institute of

Pathology and independent medical experts, who usually serve on the faculties of leading

medic.a1 schools. In FY 1993, the Board requested 180 opinions from independent

medical experts under 38 U.S.C. § 7109.

MEMBERS OF THE BOARD OF VETERANS' APPEALS

As of the close of FY 1993, the following individuals are serving as members of the

Board of Veterans' Appeals. Of these, four have been appointed by the Secretary and are

awaiting Presidential approval. In the interim, they are serving as acting Board members.

One of the physician Board members is currently serving the remainder of his tenn in the

capacity of acting Board member. Of the 65 individuals currently serving on the Board,

43 are veterans.

AGUAYO PERELES, JOAQUIN

ANDREWS, KENNETH R, JR

AN11IONY, JAMES R

A YER, FRANCIS H. (ACTING)

BAUER. ROGER K. (VICE CHAIRMAN;)

BLASINGAME, JACK W.

BRAEUER, WAYNE M.

CALLAWAY, BETflNA S.

12
REDDY, Wll..LIAMJ.

RICE, WARREN W., JR.

ROBIN, NANCY R

ROMO, CHARLES D.

RUSSELL, CRAIG P.

SABULSKY, MARYM.

SAPLAN, UN HUN

SCHULE, JOHN J.

SEERY, EDWARD W.

SELFON, PAUL M.

SENYK, GEORGE R

SHARP, JANE E.

SHERMAN, IRIS S.

SHUFELT, GORDON H.

SPICKLER, DAVID C. (ACTING)

STANDEFER, RICHARD B. (DEPUTY

VICE CHAIRMAN)

STEIN, DANIEL J. STERLING, HAROLD i

SULLIVAN, LAWRENCE M.

SULLIVAN, ROBERT E.

SYMANSKI, CHARLES W.

TOBIN, LEO W., ill

TUTERA, ALBERT D.

WARNER, SAMUEL W.

WILKINS, STEPHEN L.

WRIGHT, PHILIP E.

YEAGER, Wll..LIAM H., JR.

CASTELLOT, JOHNJ., SR (ACTING)

CHEEK, MICHAEL D.

CLARK, HALSlEAD H.

CRAGIN, CHARLES L. (CHAIRMAN)

DANNAHER THOMAS J.

DATLOW, DONALD W.

DAY, JONATHANE.

DONSBACH, JAN

DURKIN, SHANE A.

EDWARDS, CHARLES E.

FA V A, ANTHONY

FRANK, RICHARD B.

GICK, GARY L.

GORMLEY,MATrnEWJ., ill

GOUGH, JEROME F.

HOGEBOOM, CHARLES E.

HYMAN, BRUCE E.

JOHNSON, JAMES U.

JONES, STEPHEN A.

KANNEE, BRUCE N.

KRENZER, Ell.EEN M.

MARTIN, JEFFREY J.

MCALLISlER HARRY M.

MOEHLMANN, HOLLY

MONROE, JACQUELINE E. (ACTING)

O'NEILL, EUGENE A.

PEISER IRVINH.

PHILIPP, ROBERT D.

PHILLIPS, NANCY I. (ACTING)

POWELL, URSULA R

HEARINGS BEFORE THE BOARD

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

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

13
section of the Board. During FY 1991, the number of hearings conducted 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 BV 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 the hearing request backlog 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

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. Of course, in the event that

legislation is passed authorizing the Chairman to assign a case to a single Board member,

the member conducting the hearing will also render the decision in the case. 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 Board member.

Single member hearings have reduced the backlogfor BV A hearings at regional offices. More than 90% of veterans

are represented at these non-adversarial hearings by veterans' service organizations or other agents.

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), has enabled the Board to

schedule more frequent hearings at VA regional offices and, consequently, has reduced the

amount of time that a claimant must wait before such a hearing can be scheduled. BV A

held 1,172 hearings in Washington, DC, and 3,533 hearings in 52 VA regional offices in

FY 1993, which is a significant increase from the 1,394 hearings held in Washington, DC, .

and the 1,258 hearings held in VA regional offices in FY 1992. It is projected that, in FY

1994, the Board will schedule 4,000 BV A hearings at regional offices and 1,000 hearings

in Washington, DC.

14
"Trailing Docket" Procedures

The increase in the number of hearings before the Board, particularly those at VA

regional offices, has required that procedures for the scheduling of hearings be modified to

make the most efficient use of available resources. In FY 1993, with the cooperation of

the Veterans Benefits Administration, the Board instituted the "trailing docket" method of

scheduling BV A hearings at VA regional offices. Under this system, the former practice

of a fixed hearing schedule has been eliminated. Instead, several hearings are scheduled at

specific intervals, usually three, throughout the day. The hearings in each group are held

in order, but the starting time of each hearing can be adjusted to accommodate

circumstances such as hearings of shorter length or an appellant's failure to appear for a

scheduled hearing. This has expanded BV A's ability to hold hearings by reducing the

waiting time between hearings and by enabling the individuals involved to react to changed

circumstances, such as hearing cancellations and the failure of a claimant to appear for a

scheduled hearing. It is noted that the "no show" rate for travel hearings in FY 1993 was

at 25 percent. The new procedure permits more effective use of Board members'itime and

provides improved service to veterans.

Other measures designed to improve the hearing process include the construction of a

new reception area for veterans arriving at the Board's offices in Washington, DC, for

personal hearings. This facilitated, simplified, and improved access to hearings for all

veterans, particularly those with physical disabilities.

REPRESENTAllON BEFORE THE BOARD

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

Board. In FY 1993, 23,007 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 also a slight increase in representation by attorneys. For decisions entered in FY

-1993, 87.1 percent had representation by one of the accredited service organizations, 3.1

percent had representation by an attorney or agent, and 9.8 percent had no representation.

For decisions entered in FY 1992, 87.0 percent had representation by an accredited

service organization, 2.4 percent had representation by an attorney or agent, and 10.6

percent had no representation.

REVIEW OF ATfORNEYS' AND AGENTS' FEE AGREEMENTS

The VJRA required filing with BV A of attorneys' and agents' fee agreements for

services in connection with a proceeding for veterans' benefits before VA. It also gave

BV A the authority to review fee agreements on its own motion or upon motion of a party to the agreement. .

15
In FY 1993, the Board received over 270 fee agreements for filing. Most of the

perceived problems concerning fee agreements were handled by correspondence. The

Board issued only two motions for review of fee agreements for insufficiency in FY 1993.

One was withdrawn upon the attorney's representation that he would not charge a fee for

his services in connection with proceedings before VA. In the other, a decision has not

yet been issued.

Almost all the Board's decisions concerning fee agreements involve agreements referred

to BV A by VA regional offices for a determination whether the attorney is eligible for

payment directly by VA under 38 U.S.C. § 5904(d). In FY 1993, 33 cases were referred

for such decisions. Twenty-nine such cases were completed during the fiscal year: 11

were allowed, 9 were denied,S were administratively remanded, and 4 were withdrawn by

the parties.

LIAISON ACTIVITIES

Co"espondence and Congressional Liaison Activities

The Board responds directly to requests for infonnation 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 Chainnan. The

Chainnan provided 5,324 written responses to Congressional inquiries in FY 1993. In

addition to the above noted correspondence, the Chainnan responded 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 other interested

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. In many

instances, cases must be withdrawn from active appellate consideration while a r~sponse

to the inquiry is being prepared. Furthermore, the rapidly evolving state of the law

necessitates continual retraining of Administrative Service employees who respond to

these inquiries.

Other Liaison Activities

As previously discussed, at a meeting convened in February 1993 by Secretary Brown,

the Chairman made a presentation to many of the veterans' service organizations

concerning the backlog of appeals and the Board's initiatives to increase productivity and

improve timeliness of decisions. The Chairman discussed a proposal to amend title 38 of

the United States Code to permit BV A to issue decisions (other than reconsiderations) by

individual members of the Board rather than sections composed of three members.

16
Projections indicate that this change would increase productivity by 25 percent without

incurring additional costs.

On several occasions during the year, the Chairman testified before the Subcommittee

on Compensation, Pension, and Insurance of the House Committee on Veterans' Affairs.

In May he described the impact of the Veterans' Judicial Review Act on the Board and

addressed administrative initiatives that the Board had adopted to insure responsiveness to

the changes in veterans' law and to improve decision productivity and response time. In

October he testified regarding the Department's proposed "Veterans' Appeals

Improvement Act of 1993" and expressed VA's comments on other bills. He emphasized

that the improvements proposed in the Department's bill are urgently needed and that

current BV A procedures must be revised to permit the Board to improve its productivity

and timeliness. He also discussed specific provisions of the draft legislation that would

authorize administrative allowances on the basis of difference of opinion, allow the Board

to use modem telecommunications technology to hold hearings with the presiding Board

member in Washington, DC, and the claimant in a remote location, and authorize the

Chairman to assign cases to individual Board members for final decision.

During the year, the

Board was visited by

Congressmen Jim

Slattery, Chairman, and

Michael Bilirakis, Ranking Minority Member, of

the Flouse Subcommittee

on Compensation, Pension, and Insurance; members of the staff of the

House and Senate Veterans' Affairs Committees'. ... ...'Meetings between the Chalnnan and representatives of veterans'ervIce

staff of IndiVIdual Mem- organizations pravide a forum for discussion of imporlant issues.

bers of Congress; VA

Assistant Secretaries; and Clerks and legal staff of the U. S. Court of Veterans Appeals.

The Chairman briefed the visitors regarding the Board's operations, the appellate review

process, and various legislative and administrative initiatives to improve productivity and

timeliness.

During FY 1993, speakers at the Board's quarterly luncheon programs included VA

Secretary Jesse Brown, then Executive Director of the Disabled American Veterans; John

F. Sommer, Jr., Executive Director of the American Legion; and VA Deputy Secretary

Hershel Gober.

The Chairman addressed several of the veterans' selVice organizations at their national

conventions and participated in discussions during their annual training programs. He

addressed the selVice organizations on changes at the Board and initiatives to improve the

17
appellate review process. He stressed that, with the expanding requirements of appellate

review, changes bringing about a more efficient operation are required in order to meet the

Board's objective of issuing timely, consistent, quality decisions.

In addition the Board continued its practice of holding quarterly "Veterans Service

Organization Forums." These meetings provide those who represent veterans, including

members of the private bar, with the opportunity to question and discuss issues of mutual

concern with the Chairman and members of his senior staff

The University of Maine School of Law conducted its first Veterans' Law Symposium

in September, focusing on the changes brought about by judicial review of the

Department's claims adjudication process. Chief Judge Frank Nebeker, U. S. Court of

Veterans Appeals, and the Chairman addressed the participants and have written articles

to be published in the school's law journal. Mr. Robert Nelson, General Counsel of the

Paralyzed Veterans of America, and Mr. Robert Campbell, founder and Executive

Director of Trinity Post 7-45, also addressed the symposium. .

The Second Annual Judicial Conference of the United States Court of Veterans

Appeals was held in October. The opening address was presented by the Honorable G. V.

(Sonny) Montgomery, Chairman of the House Committee on Veterans' Affairs. The

Honorable John D. Rockefeller IV, Chairman of the Senate Committee on Veterans'

Affairs, addressed the participants during luncheon. Both Members of Congress voiced

concern over the backlog in cases experienced at the Department and expressed their

support for efforts aimed at the timely processing of claims. Chief Judge Nebeker, who

acted as host of the conference, spoke on effective appellate advocacy. The Chairman

also addressed the participants and discussed the effects on the Board of changes in the

law resulting from the Court's decisions (see Part II for the full text of the Chairman's

presentation).

AUTOMAllON INITIATIVES

The Board's ongoing automation

project is intended to

increase the efficiency

of its operations and

thereby offset, to the

extent practicable, the

adverse effects of

Word processing training is provided to all Board members and staff attorneys. judicial review on

BV A productivity and

timeliness. In FY 1993, over 300 personal computers were installed for use by the B°.ard's

Professional and Administrative Services. Office automation was introduced during the

year into 15 additional Board sections for a total of 19 automated Board sections.

18
Automation of the remaining two Board sections was completed in November 1993.

Planning is complete and equipment has been procured for the automation upgrade of the

Wilkes-Barre, Pennsylvania, transcription unit, which is scheduled for the first quarter of

FY 1994. The Wang word processing equipment will be replaced with personal

computers connected via a network.

The first CD-ROM of Board decisions was produced this year. The entire text of all

calendar year 1992 BY A decisions and the index of these decisions were issued on the

CD-ROM. This product gives researchers the capability to search all 1992 decisions for

relevant topics and to display or print the text of the decisions matching the search criteria.

During the year a

successor system for the

Board's case tracking

system was selected and

the process of customization, installation, and

conversion was started.

The new system will be

fully operational in the

third quarter ofFY 1994.

The Board made the case

tracking system available

via telecommunications

to other VA organizations in a continuing

effort to disseminate

information where it is

needed. Individuals in

the Office of General

Counsel, VBA, and VA

regional offices were

issued passwords to

allow them to perform

inquiries on the system.

The Office of General

Counsel opened their

Court of Veterans

Appeals Database to

Board inquiries and

increased productivity in

the litigation support area.

One CD ROM disc replaces 200,000 pages of decisions and allows

instantaneous search and retrieval of infonnation.

19
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 decisions

is on BV A's decision making process at

least as much as on the ultimate

determinations 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 staffs have been

significantly increased.

-.C

Fonnal training is provided to BV A staff counsel.

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) INITIA nVES

The Board of Veterans' Appeals recognizes the valuable contributions that its

employees can make in improving the quality and timeliness of the services provided to

veterans. Cross-functional teams have been established to deal with the ongoing process

of finding better ways of accomplishing the Board's mission. For example, teams have

worked on implementation of "computer-assisted" decision writing; development of a

glossary of frequently-used language; preparation of guidelines to ensure consistency in

citations to legal and medical sources; preparation of Congressional correspondence;

expansion of the Board's offices to the sixth floor of the Lafayette building; measurement

of production and quality of draft decisions prepared by staff counsel; and revision of

performance standards for employees in the Administrative Service.

The Administrative Service currently has a TQM Legal Technician functional team that

is composed of nine employees who act as representatives from their respective Control

Divisions and from other staff offices within the Service. The team members have been

trained and certified in implementation of the principles of the quality improvement

process. The group is presently engaged in drafting recommendations for reducing the

numbers of mishandled cases and accelerating case movement to the Professional Service.

The team members have also formed smaller groups to gather and prepare statistical data

which will be presented to the Chairman in support of their recommendations.

20
The Board's efforts in

support of total quality

management have also

included programs to

provide ongoing training

and development of its

employees, who

constitute the Board's

most valuable resource. Total quality management affords BV A employees an opportJlnity to make

Intensive, formal improvements to the system.

training is now available

to all newly hired attorneys. Medical lectures are held on a regular basis and are attended

by all staff counsel. State-of-the-art training was also provided during this fiscal year to

attorneys, administrative staff, and the Board's transcription unit located in Wilkes-Barre,

Pennsylvania, in the use of the various software products and in keyboarding ~lIs, as

necessary. Employees of the Board also attended the Federal Quality Institute's National

Conference and the Federal Executive Institute.

THE BOARD'S 60th ANNIVERSARY

In April 1993, the Disabled American Veterans held a reception ceremony at their

National Service and Legislative Headquarters in Washington, DC, to salute 60 years of

service by the Board of Veterans' Appeals. Mr. Joseph C. Zengerle, National Commander

of the Disabled American Veterans (DA V), was joined for the occasion by Secretary of

Veterans Affairs Jesse Brown and several hundred attendees, including the Chairman and

senior Board officials. The DA V leader praised the Board for its "historical commitment

to assuring just and equitable treatment for disabled veterans, their families and their

survivors." Commander Zengerle called the Board a model government agency dedicated

to recognizing the sacrifice of America's disabled veterans and presented the Chairman

with a resolution and a plaque in recognition of the occasion. Mr. John Hanson of the

American Legion, Mr. George Estry of the Veterans of Foreign Wars of the United States,

Mr. Richard Glofelty of the Paralyzed Veterans of America, and Mr. Noel Woosley of

AMVETS presented plaques on behalf of their organizations. Congressman G. V.

(Sonny) Montgomery, Chairman of the House Committee on Veterans' Affairs, attended

the reception and extended his personal congratulations to the Secretary, the Chairman,

the Board, and its staff on the occasion of the anniversary celebration.

Secretary Brown addressed the attendees at the reception, commending the Board for

achieving high standards in decision-making, noting that only a relatively small percentage

of all Board decisions have been reversed by the U. S. Court of Veterans Appeals. He

expressed his concerns over timeliness standards and backlogs that, in his opinioQ, have

now become unacceptable. The Secretary reminded the audience that "we are ca~ght in

21
an inescapable network of mutuality." He stressed that if all parties continue to work

together, solutions

to these problems

will be identified.

In September,

more than 270

people gathered at

a dinner dance

held at the

Renaissance Hotel

in Washington,

DC, to celebrate

the 60th

anniversary of the

founding of' the

Board. of Veterans'

Appeals. The Secretary Brown and Chainnan Cragin receive presentationfram theDAV in B d' t of recognition of the Board's 60th Anniversary. oar s gues

honor, the

Honorable Hershel Gober, Deputy Secretary of Veterans Affairs, presented the Board

with a Resolution issued by Secretary Jesse Brown calling on VA employees and facilities

throughout the nation to "provide appropriate recognition of the Board's

accomplishments." Deputy Secretary Gober lauded the Board on its anniversary and

noted that "while the Board was originally established as a 'temporary' measure by

President Franklin Roosevelt, it has grown into a young and dynamic organization.

Indeed, one-half of all of the Board counsel have been hired within the last three years."

Mr. Gober also delivered a letter to the Board from President Bill Clinton. The

President extended his "grateful appreciation for the Board's tireless efforts on behalf of

our nation's veterans" and observed that the "fact that the appointment of each Board

member requires the personal approval of the President of the United States is t~stimony

to the high level of expertise required." The President concluded that "'Putting Veterans

First' is more than just a slogan. It is a mission statement of the Department. I am

confident that as the Board applies the rule of law in a compassionate and understanding

manner, it will ensure that decisions on claims have, in fact, put veterans first."

Representatives of several veterans' service organizations and of the House Committee

on Veterans' Affairs joined in the festivities. Rear Admiral James Miller, USN (Ret.),

President of the U.S. Navy Memorial Foundation, presented the "Lone Sailor Award" to

the Board "in grateful recognition of its sixty years of service to America's veterans."

22
PART II

REMARKS OF THE CHAffiMAN

AT THE SECOND JUDICIAL CONFERENCE

OF THE UNITED STATES COURT OF VETERANS APPEALS

OCTOBER 1993

The Chairman was invited by the Court to address the Second Judicial Conference of

the United States Court of Veterans Appeals on October 18, 1993. While a more detailed

discussion of certain topics covered by the Chairman's remarks is presented in the

narrative portions of this report, the Chairman's remarks at the Judicial Conference are

included below because they provide a comprehensive overview of the impact of judicial

review on the Board and the VA benefits adjudication system, a description of the

administrative and legislative efforts that have been undertaken to ameliorate some of the

adverse consequences of judicial review, and an appreciation of the respective roles of the

Court and the Board in the adjudication process. The text of the Chairman's remarks

follows:

INTRODUCnON

Chief Judge Nebeker and members of the Court, distinguished guests, and colleagues

of the Board of Veterans' Appeals, it is an honor to be invited to participate in the Second

Annual Judicial Conference of the United States Court of Veterans Appeals. I apologize

for not being able to be with you this morning. However, the "powers that be" in OMB

thought this morning would be a good day to discuss my fiscal year 1995 budget request.

I went to that meeting because I'm a believer in the" golden rule." Whoever has the gold

rules!

-

Today is the birthday of the Mason-Dixon line, the boundary that was later regarded as

separating the North from the South. It was adopted on this day, in 1767, as the border

between Maryland and Pennsylvania. And that border has remained where they put it,

ever since. When you draw a good line, it works. The question always is when and how

you decide where to draw the line, not only on the map, but in terms of rules of law,

procedures, and precedents.

JUDICIAL REVIEW -AN mSTORICAL PERSPECTIVE

In 1803, the Supreme Court of the United States drew a good line in MaJ"bury v.

Madison in its definitive articulation of the responsibilities of the judicial and executive

branches of government. In that decision, the Supreme Court observed: "[i]t is

23
emphatically the province and duty of the judicial department to say what the law is."

Chief Judge Nebeker commented to me one day as we were sharing thoughts about the

evolving process that "the Court of Veterans Appeals has now moved beyond Marbury v.

Madison."

There is no question that judicial review has provided a convenient forum for testing

the validity of VA regulations and settling disputed points of veterans' law. It has helped

in establishing a more systematic approach to benefits claims adjudication. It has also

provided a forum to veterans for dispute resolution outside the Department when they

may feel that VA has not treated them fairly. Nevertheless, these benefits have not been

achieved without costs, particularly in increased formality and complexity of the

adjudication process.

While the U.S. Court of Veterans Appeals reviews appeals from decisions by the

Secretary of Veterans Affairs on claims for veterans' benefits, those decisions are rendered

for the Secretary by the Board of Veterans' Appeals. Thus, in a very real sense, the Board

serves as the interface between the Court and the Department and is the first to receive the

Court's guidance, often in very direct terms, on the meaning of the law and the procedures

that must be followed in the administrative adjudication process.

On July 28, 1993, the Board celebrated its sixtieth anniversary. Because of the changes

in the law resulting from the enactment of the Veterans' Judicial Review Act, as

interpreted by the decisions of the Court that was created by that Act, life at the Board has

changed more completely and dramatically in the past three years than it had in the prior

57 years of its existence. As Chairman of the Board since March 1991, I believe that I

have had the unique opportunity to observe, participate in, and, in some sense, influence

the unfolding of events in this historical process. I believe that, in any event, I can

articulate what the impact of the Court of Veterans Appeals has been on the "receiving

end" of the Marbury v. Madison interface. Thank you for providing me with this

opportunity .

At the outset, it is interesting to note the comments of VA's General Counsel, in his

statement to the House Committee on Veterans' Affairs in June 1986, in opposition to

judicial review legislation. Judge Ivers made some candid, some would suggest "dire,"

predictions as to the effect of judicial review on the VA benefits adjudication system.

Judge Ivers acknowledged that the supporters of judicial review had (and I quote):

...the laudable intention of preserving intact this informal and cooperative

system, simply by adding another available remedy. In other words, they

intend to add icing to the cake. What we believe they have not foreseen,

and what is central to our opposition, is that the current system would

inevitably be changed for the worse by the mere availability of judicial

review. Resort to the Courts, if you will, would spoil the cake.

24
Enactment of judicial review would interject an adversary relationship into

what has been a cooperative process. As a matter of principle, VA should

never be placed in an adversary position, much less become an opposing

litigant, with respect to claimants. The prospect of court scrutiny and

repeated challenges to our pro-veteran process would necessarily result in

more rigid and formal procedures.

'\

VA would be thrust into the unaccustomed adversarial role of developing

evidence to refute a claimant's contentions in order to assure that the

record supports denial of an unmeritorious claim to the satisfaction of a

reviewing judge. The Agency would have to document every factor and

consideration that led to denial of a claim, that is, "build the record." Each

procedural step would have to be recorded, including minor ministerial

actions. Unable to rely on the medical judgment of its adjudicators, VA

would have to develop additional record evidence such as scientific

treatises or journal articles, for the benefit of judges untrained in the

medical profession.

...I can assure you that judicial review of claims matters based on the

record prepared administratively, particularly with increased involvement of

attorneys whose training and experience are geared to adversarial

proceedings, will alter the process in a fundamental and pervasive manner.

Moreover, rigidity, formality, and subtle changes in attitude will be

inherent, regardless of the best intentioned statutes and regulations.

It appears that Judge Ivers and his colleagues on the Court may be engaged in the

implementation of a self-fulfilling prophecy. Clearly, the Court is an adversarial system

grafted on to one which was designed to function in a paternalistic, nonadversarial, and ex

parte manner. The result is that the "mere availability of judicial review" has made the

administrative adjudication process more formalistic, rigid, and inherently more timeconsuming. The landmark decisions of the Court all have had the effect that Judge Ivers

.predicted. For example, Manio, McGinnis, Grottveit, Schafrath, and Bernard require

application of more formalistic legal analysis and adherence to procedure. -Gilbert and

Godwin illustrate the necessity of "building the record" to permit judicial review. Ivey,

Murincsak, and Bell, for example, require the documentation of relatively minor

"ministerial acts" in order to demonstrate compliance with the Department's "duty to

assist" and the formal requirements of regulation. Colvin and its progeny introduce expert

medical opinion, medical journals, and treatises into the record because VA adjudicators

may no longer rely on their own expertise. Moreover, under Thurber, the Board is

required to provide notice and an opportunity to comment or provide rebuttal evidence to

any evidence, such as a medical treatise, that it obtains and intends to rely upon in

reaching its decision.

t

The Court has been creating a body of "veterans' common law" through its precedent

decisions. The applicable law, as articulated by the decisions of the Court, is changing on

25
almost a daily basis. As one of the members of the BV A team recently observed, "I don't

mind jumping through hoops, I just wish they would hold them steady."

Because of the increasing complexity and rapidly evolving state of the law, BV A

decisions are lengthier, more complex, and require more time to prepare than ever before.

As a consequence, speedy justice in VA claims adjudication has become an elusive,

moving target.

IMP ACT OF JUDICIAL REVIEW ON BV A APPEALS ADJUDICA nON

Relatively few decisions of the Board actually come before the Court. In fiscal year

1993, the Board rendered 26,400 decisions. Of that number, 36.9 percent of those

dispositions were denials of all benefits sought, 16.9 percent were allowances of at least

one of the benefits sought, 44.0 percent were remand decisions, and 2.2 percent were

characterized as "other" dispositions, such as withdrawn appeals. In total, 53.8 pe~ent

were final BY A decisions and, therefore, appealable to the Court. The Court received

1,265 notices of appeal during the past fiscal year. Thus, only about 5 percent of the

Board's final decisions wind up before the Court. Nevertheless, all BY A decisions must

be prepared to withstand the scrutiny of judicial review. Preparation of cases according to

these standards, which include all notice and due process procedures, has increased the

length and complexity of BY A decisions, added a legalistic and adversarial tone to the

decision making process, and dramatically increased the time it takes the Board to issue a

decision.

I noted in my 1992 Annual Report to Congress that no decision of the Court, with the

exception of Bethea v. Derwinski, 2 Vet. App. 252 (1992), has yet resulted in an

improvement in decision productivity or timeliness in the entire VA adjudication system.

Many decisions have had exactly the opposite result. Also, by its very nature, another

layer of appellate review adds to processing time as lower level adjudicatory bodies

struggle to meet new requirements.

The Court, in Tobler v. Derwinski, 2 Vet.App. 8 (1991), has held that its decisions

must be given full force and effect immediately. The precedent panel or en banc decisions

of the Court announcing important changes in interpretation of the law affect each of the

thousands of cases that are in progress in the system at any given time and may require

returning to "square one" with all affected cases. Occasionally, the process must be

repeated twice in the same case when the Court reverses itself on further review. For

example, in Abernathy I, the Court held that the Board should apply the Manio two-step

analysis to pension claims. Several months later in Abernathy II, the Court retreated from

this position on reconsideration. This is an offshoot of judicial review that often adds to

claim processing time.

26
Remands of Cases to V A Regional Offices

Another factor that significantly increases the time it takes for final resolution of a claim

is the necessity for the Board to remand more cases for additional development than it has

in the past. For the decade prior to the passage of the VJRA, the Board's fiscal year

remand rates ran from a low of 13.4 percent to a high of 20.7 percent. With the full

impact of judicial review, the remand rate hit 50.5 percent in fiscal year 1992. The rate for

fiscal year 1993 is only somewhat improved, at 44 percent. Most cases remanded to the

originating agency are returned to the Board for final adjudication. Therefore, this

"improvement" in the remand rate, at least in part, is attributable to the fact that an

increasing number of decisions issued by the Board involve cases returned to the Board

following development on remand. Because these cases are generally the oldest docketed

appeals, they must be worked before the later docketed appeals, which have not been

reviewed, to determine if additional development is required.

Several factors contribute to the increase in the number of cases remanded. First, the

Court's precedential decisions generally are given retroactive effecl;. As Judge Steinberg

noted in a recent dissent, quoting a Supreme Court decision, " [i]ndeed, a legal system

based on precedent has a built-in presumption of retroactivity." Thus, VA regional office

decisions that were rendered prior to the issuance of a controlling precedent decision of

the Court often must be remanded to the originating agency to cure the defect. We

affectionately refer to these situations as "being caught in the Kamas time machine."

Obviously, this principle of "retroactivity" is equally applicable to BV A decisions. In

fact, once it enters the jurisdiction of the Court, a BV A decision may be required to be

revised several times to comport with new precedents established during the pendency of

the appeal before the Court. The appeal of Clarence T. Hatlestad provides a graphic

illustration of "retroactivity" in action. The Court's first decision in Mr. Hatlestad's appeal

was issued in March 1991. In that decision, the Court vacated a December 1989 BV A

decision and remanded the case to the Board for readjudication in accordance with its

opinion. The Board, among other things, was directed to provide additional explanation

of the reasons or bases for its determination in regard to the extent of the veteran's

disability due to pain, consistent with the Court's opinion in Gilbert v. Derwinski, an

October 1990 decision. The Board issued a decision in June 1991 and, in discussing

issues concerning the veteran's complaints of pain and the disabling effects of nonserviceconnected disabilities, relied on several medical texts to explain the bases for its decision.

In July 1992, the Court issued its second opinion in the case, which affirmed the Board's

June 1991 decision. However, in September 1992, sua sponte, the Court held in abeyance

the issuance of its judgment of the July 1992 decision and, following several other

procedural developments, issued an opinion "in supplementation" of its July 1992

decision. In that decision, issued in September 1993 and referred to at the Board as

"Hatlestad J//," the Court vacated the June 1991 BV A decision and remanded the case for

readjudication, in part, to provide the appellant with notice and an opportunity to

comment on the medical texts cited by the Board, a requirement initially establish'ed by the

Court's May 1993 decision in Thurber v. Brown. (I will return to the subject of Thurber

27
later in my discussion.) While the Hatlestad situation is unusual, it demonstrates the

adverse effect on productivity and response time resulting from the repeated

readjudication of a case to comport with rapidly changing legal precedent. Stay tuned for

a future report on "Hatlestad !VI"

It should be noted in passing that the Board is limited by the requirements of the formal

rule-making process, as provided by the Administrative Procedures Act, in attempting to

react immediately to changes in the law. A recent example that comes to mind followed

the Secretary's instruction that the Board prepare a list of the relevant evidence that it

considered in reaching each of its final decisions. Questions were raised as to the standard

of "relevancy" that was to be applied. However, the Board cannot simply "adopt" a

standard to be applied on a Board-wide basis, even that set forth explicitly in the Federal

Rules of Evidence. Rather, in establishing a consistent standard, the Board must follow

rule-making procedures as prescribed by the Administrative Procedures Act. While there

is no objection to this process, it is time-consuming, delays responsiveness, and, in the

current situation, does not serve to improve response time. .

"Duty to Assist" in the Development of Claims

Perhaps the most significant factor contributing to the increase in the number of cases

remanded by the Board has been the Court's interpretation of the Department's duty to

assist claimants in the development of their claims. Various decisions of the Court require

VA to seek out possibly relevant additional service records, private and VA medical

records, Social Security Administration records, new physical examinations, and more

complete examinations. Others have expanded the scope of appeals, under the "duty to

assist" rubric, to include "inferred" claims for ancillary benefits and "issues raised in all

documents or oral testimony submitted prior to the BV A decision," even though those

issues may not have been mentioned at all in an appellant's formal appeal. The technical

requirements for filing often are given what can fairly be described as an expansive

interpretation by the Court. For example, in Tomlin v. Brown, the Court held that an oral

statement by an appellant's representative during a regional office hearing, which was later

transcribed by the Department, was sufficient to comport with the requiremen! under

38 U.S.C. § 7105(b) that a Notice of Disagreement (NOD) must be in writing. Moreover,

the NOD was considered to have been timely filed when the remarks were uttered, not

when they were transcribed a few months later. Some would suggest that this is a classic

example of judicial transubstantiation!

"Due Process" Remands

"Due process" remands by the Board have also increased and are likely to continue to

increase. The Court's tendency to expand the scope of issues on appeal, making it more

likely that an issue will have been missed and, therefore, not adjudicated below, has

already been noted. The Court has also been extremely expansive about what statu~ory

and regulatory authorities must be addressed. For example, in Schafrath v. Derwinski, the

Court stated that" [w ]here a VA regulation is made potentially applicable through the

28
assertions and issues raised in the record, the Board's refusal to acknowledge and consider

that regulation is 'arbitrary, capricious, an abuse of discretion,' and 'not in accordance with

the law,' and must be set aside as such." Thus, the Board must identify and discuss all

potentially applicable statutes and regulations even though they have not been raised or

specifically considered below. This, in turn, creates additional due process considerations.

In Bernard v. Brown, the Court stated that:

[W]hen, as here, the Board addresses in its decision a question that had not

been addressed by the RD, it must consider whether the claimant has been

given adequate notice of the need to submit evidence or argument on that

question and an opportunity to submit such evidence and argument and to

address that question at a hearing, and, if not, whether the claimant has

been prejudiced thereby.

It should be emphasized that a Board section's decision to remand a case to the field is

not necessarily a reflection on the work product of various VA field offices. There may be

a substantial interval between the time that a decision is made in the field and the time that

decision is reviewed by the Board-an interval that is unfortunately growing longer in the

current climate. As the recent past has proven, the state of veterans' law can change

rapidly. What was accepted practice when a field decision was made may no longer be

legally appropriate when the Board reviews the decision. As I have also noted, the

Board's decision may likewise be overtaken by rapid changes in the legal environment.

BV A's Use of Medical Evidence

Another example of a case that significantly extends the time involved in reaching a

final decision is 11mrber v. Brown. The evolution of the Court's reasoning began earlier

with its decision in Colvin, in which it concluded that the Board could only consider

independent medical evidence and could not rely on the medical judgment of its members.

Often the medical evidence received by the Board does not include a reasoned, wellsupported opinion about the main medical question at issue although the raw data upon

which to base such an opinion is present. The Court seemed to realize this difficulty and

went on to state in Colvin that " [i]f the medical evidence of record is insufficient, or, in the

opinion of the BV A, of doubtful weight or credibility, the BV A is always free to

supplement the record by seeking an advisory opinion, ordering a medical examination or

citing recognized medical treatises in its decisions that clearly support its ultimate

conclusions. "

Reliance on medical treatises is an attractive alternative in routine cases, although it can

sometimes be extremely difficult to find an authority for very basic principles. For

example, try to prove a negative in the medical literature, such as when a claimant asserts

that a laceration to his thumb resulted in peripheral neuropathy of the lower extremities

.

with residual foot drop forty years later.

29
In Thurber, the Court addressed for the first time the due-process implications of using

evidence, in this case medical texts, which had not been part of the record below and

which the appellant had not had an opportunity to attempt to rebut. The Court held that:

[B]efore the BV A relies, in rendering a decision on a claim, on any

evidence developed or obtained by it subsequent to the issuance of the

most recent [statement of the case] or [supplemental statement of the case]

with respect to such claim, the BV A must provide a claimant with

reasonable notice of such evidence and of the reliance proposed to be

placed on it, and a reasonable opportunity for the claimant to respond to it.

If, in the course of developing or obtaining or attempting to so develop or

obtain such evidence, the BV A becomes aware of any evidence favorable

to the claimant, it shall provide the claimant with reasonable notice of and a

reasonable opportunity to respond to the favorable evidence, and shall in its

decision provide reasons or bases for its findings with respect to that

evidence.

I have exercised my authority under 38 C.F.R. § 20.2 (1992) to prescribe a procedure

to meet the Court's Thurber requirements. Essentially, this procedure provides notice and

comment opportunities similar to those provided by 38 C.F.R. § 20.903 (1992) when the

Board intends to rely on medical treatises or other evidence gathered following the most

recent statement of the case (SaC) or supplemental statement of the case (SSaC).

Compliance with Thurber adds at least 60 to 90 additional days to the processing of cases

affected by that decision.

Attorney Fee Agreements

Decisions of the Court have also affected the Board's new duties --established by the

Veterans' Judicial Review Act of 1988 --concerning the review of fee agreements for

services in connection with proceedings before the Department for VA benefits. Under

38 U.S.C. § 5904(c)(2), attorneys' and agents' agreements concerning fees for

representing a claimant before the Department, including the Board, must be filed _with the

Board. The Board may review these fee agreements on its own motion, or at the request

of either party, and may order a reduction in the fee if it finds that it is excessive or

unreasonable.

Initially, the Board established procedures to review fee agreements soon after they

were filed. If a deficiency was noted, the Board issued a notice that it would review the

fee agreement on its own motion. Rulings on these motions were by the Chairman, in

letter format. This was an efficient and expeditious means of dealing with the agreements

that did not meet the statutory requirements for charging a fee. It also had the benefit of

alerting attorneys immediately if there appeared to be a problem with their ability to

charge a fee under 38 V.S.C. § 5904(c). .

30
The Court's initial decision concerning 38 U.S.C. § 5904 invalidated the early review of

fee agreements by the Board. In Nagler v. Derwinski, in June 1991, the Court held that

the Board was authorized to review a fee agreement only when there is representation

before VA or the Board after a first final decision by the Board. In Nagler, it was not

disputed that there was no substantive claim pending before the BV A and no

representation under the fee agreements being provided before either the BV A or VA.

Each fee agreement, by its terms, covered representation before both the Court and the

Department, but only representation relating to an appeal to the Court had been

undertaken at the time of the Board's actions. Consequently, the Court held that the

Board lacked the authority to review these fee agreements because, at the time the reviews

were initiated, there was no representation being provided before VA or the BV A after the

first final BV A decision.

Nagler led to changes in the Board's procedures. Rather than reviewing fee

agreements when they were filed, the Board began to review them as soon as it had

entered a final decision. In other respects, however, the procedures remained es~entially

the same. The Court's next decision concerning the Board's review of fee agreements

required a complete change in the Board's procedures.

In a decision concerning the Board's ruling on a fee agreement involving attorney

William G. Smith, the Court held in October 1991 that the Chairman did not have

statutory authority to act for the Board under 38 U.S.C. § 5904(c). Therefore, the Court

dismissed the appeal from the Chairman's ruling on the fee agreement.

Since that Court decision, the Board has issued few rulings on fee agreements on its

own motion. After the Court's decision in Matter of Smith, any ruling by the Board under

38 U.S.C. § 5904(c) must be by means of a decision issued by a Board section. This

requires the expenditure of more resources than would a letter by the Chainnan ruling on a

fee agreement. Most of the Board's decisions concerning fee agreements since 1991 have

been in cases involving payment by the Department under 38 U.S.C. § 5904(d). We have

only issued two notices of review of a fee agreement on our own motion. One was

withdrawn after the attorney involved said that he would not charge a fee, and the other is

currently pending.

Rather than burden both the parties to the fee agreement and the Board with a motion

on a fee agreement that may be unnecessary, we attempt to resolve any perceived

problems with a fee agreement through correspondence rather than through formal

motions and decisions on motions. This appears to be working well.

When we receive a fee agreement for filing, we acknowledge receipt of the fee

agreement immediately. Then, we check the fee agreement against our records to see if

the statutory and regulatory requirements appear to be met. If there appears to be a

problem --for example, if we have no record of a final BV A decision under the name or

claim number submitted, or if the fee agreement is dated more than one year after the most

recent final BV A decision --we notify the attorney of the potential problem and ask for

31
any additional information that would establish that the requirements for charging a fee are

met. Only if the matter cannot be resolved through correspondence, and the requisites

articulated in Nagler are met, would we issue a notice of review of a fee agreement on our

own motion. If the fee is wholly contingent and is based on an award of past-due benefits,

we have, to date, deferred filing a notice of motion until the VA regional office has made

an award. If the agreement provides for payment of the fee by the Department under

38 U.S.C. § 5904(d), and if there has been representation before the Department, the VA

regional office refers it to the Board when an award of past-due benefits is made. These

referral procedures were established in mid-1992.

From mid-1992 until October 13, 1993, the Board has received 48 cases for review of

a fee under 38 U.S.C. § 5904(d). Of those cases, 33 have been decided as follows: 4 (or

12.1 percent) were withdrawn by the attorney or claimant, 5 (or 15.2 percent) were

returned to the VA regional office due to a procedural problem, 10 (or 30.3 percent) were

denied, and 14 (or 42.4 percent) were granted. There are currently 15 cases pending

before the Board. .

There have been some problems with the procedures established for authorizing

payment under 38 U.S.C. § 5904(d). These problems stem from actions by the attorneys,

the VA regional offices, and the Board. With VBA, we have taken steps to solve some of

these problems.

The VA regional offices have sometimes missed the presence of a fee agreement

providing for payment directly by VA when they are processing their award action. The

Court's decision in fee agreements involving attorneys William G. Smith, Hugh D. Cox,

and Bruce Tyler Wick, in August 1993, concerned three instances in which VA regional

offices failed to withhold 20 percent of the past-due benefits awarded pending a decision

on whether each attorney's fee should be paid by VA. As you will note from the number

of decisions denied or withdrawn, there have also been instances in which the fee

agreement on file in the claims folder did not provide for payment by VA under 38 V.S.C.

§ 5904(d), yet the case was forwarded to BV A for a decision on whether the attorney

should be paid under this section.

To diminish the number of unnecessary referrals of fee agreements to the Board for a

decision, we have recently initiated a procedure whereby we will advise the VA regional

office before any award action --or during the award action, if we haven't done so already

--whether to send the fee agreement to the Board if an award of past-due benefits is

made. This will allow 100 percent of the past-due benefits to be paid to the claimant

without delay, if a fee agreement does not, on its face, provide for payment of the fee

directly by VA. Attorneys will be notified at the time they receive acknowledgment of

BV A's receipt of the fee agreement whether we have instructed the VA regional office to

send the file to the Board for review of the fee agreement if an award of past -due benefits

is made. .

32
We also issued instructions in September 1993 to expedite the processing of fee

agreement cases at the Board. The Board's response time had degraded significantly due

to the backlog of pending appeals at the Board, and attorneys were waiting many months

for a decision on whether they could be paid under 38 U.S.C. § 5904(d). Even with this

expedited processing, however, we anticipate that it should take at least two months for

the Board to issue a decision on a fee agreement.

IMPACT OF JUDICIAL REVIEW ON TIMELINESS AND PRODUCTIVITY

To reiterate, Board decisions now simply take a great deal more time to prepare and

review because of their increased complexity. The relatively simple, result-oriented

decisions of the past are not adequate to meet the Court's requirements. The old rule of

thumb used by the Board for planning purposes in estimating resource requirements was

that an average Board decision was 240 typed lines, or about 6 pages, in length. Average

decision length in fiscal year 1993 was 300 lines. Even this 25 percent increase does not

tell the full story. In fiscal year 1993, 44 percent of the Board's decisions were remands.

These are not final decisions and the remand documents are typically a good deal shorter

than decisions on the merits. This is in contrast with fiscal year 1990, when the Board

remanded only 23.5 percent of its cases.

The average cost per decision has increased dramatically, more than doubling from

fiscal year 1988 to date. This relates primarily to the time it takes to perform the detailed

research and prepare the lengthy explanations that are now required in even relatively

simple cases.

The heavy workload of the Board is fact beyond dispute and, as Judge Holdaway

observed recently: "The Court judicially notes that the Board has an extremely heavy

work load and is striving very hard to meet new requirements that are, in part, due to

cases from this Court."

-Compliance with the requirements of the evolving "veterans' common law" !1as caused

the Board to fall further and further behind as it attempts to do more and more with

limited resources, including the current statutory limitation on the number of Board

members.

A way of looking at the situation is in tenus of "response time," the projected number

of days it would take the Board to decide all currently pending appeals based on the

average number of decisions rendered per day over the preceding year. Response time

increased from 139 days in FY 1991 to 240 days in FY 1992. In FY 1993, that figure

reached an all-time high of 466 days.

Without any significant changes in the situation, based on current data, it is prpjected

that BY A's average response time will be 725 days, essentially two years, in FY 1994 and

945 days, or two years and seven and one half months, in FY 1995. Another contrast is

33
provided in the number of decisions rendered. For example, in FY 1988, the Board

received 43,792 appeals and issued 41,607 decisions. In FY 1993, the Board received

38,147 appeals, but was only able to dispose of 26,400. Productivity for FY 1994 is

projected at 24,350 decisions.

"Certified Lists" of Evidence Included in BV A Decisions

In a memorandum of June 8, 1993, the Secretary of Veterans Affairs instructed the

Board to include in or attach to each of its final decisions entered on and after October 1,

1993, a list of the specific evidence that the Board relied on in arriving at its decision.

This "Certified List" includes all items of substantive evidence, as well as evidence

covering all procedural and "duty to assist" issues, which were considered by the Board.

It is anticipated that this list will be utilized by VA General Counsel in its designation of

records in cases on appeal to the Court.

At this point, the Board understandably has limited data upon which to quantifY the

effect of the prep¥ation of the "Certified List" on the productivity and timeliness of

decisions. Clearly, it will not have a salutary effect on either. Anecdotal information, to

date, indicates that counsel spend an additional 4 to 6 hours on each case to identify and

list each item of relevant evidence. Board members also expend additional time in

reviewing, considering, and acting upon each item listed.

AUTOMA nON

Simpler times are unlikely to return. In the meantime, the Board is doing its best to

meet the challenges. Board decision formats have been completely redesigned to meet the

Court's requirements. We are promptly distributing the Court's decisions to Board

members and staff counsel. Revised procedures are devised as rapidly as possible to meet

changing needs when new interpretations of the law are received. The Department has

allocated funds to increase our staff of attorneys to assist with decision preparation, as

welras to implement computer automation plans.

The Board is in the midst of an aggressive automation plan. I expect that the Board

will be fully "automated," using state-of-the-art computer technology, by the end of this

month. By the end of October, all Board sections (252 employees) will have received

training in the use of personal computers. When an employee is trained, the next day a

computer is installed on his or her desk and is connected to our "local area network".

The content and quality of the training were critical to the success of the project.

Board sections were trained in small groups with subject matter targeted to the specific

Board application of the technology. Counsel now have the choice of dictating or typing

decisions. Automated methods of information retrieval enable counsel to access reference .

material and copy pertinent text into documents.

34
The goal of automation is to assist counsel to achieve higher quality decisions in a more

timely manner. In the past, BV A decisions were prepared primarily by dictation and

transcription, an inefficient and time-consuming process. For example, removing the four

day "turnaround" for the transcription of an attorney's dictated work product eliminates

the need for the attorney to refamiliarize him or herself with the case when it returns for

further processing. If attorneys key decisions at their desks, they can compose, write, and

revise a draft decision more effectively in a shorter period of time. Moreover, the

reviewing Board members can review, edit, and revise the draft decision with the same

ease and efficiency. Advanced automation such as voice activated word processing is

under consideration for the future.

COMPUTERIZED RESEARCH CAPABILITIES

In July of this year, we utilized new technology to archive all BV A decisions issued in

calendar year 1992 on a single CD-ROM disc, pennitting exhaustive data searclies with

sophisticated software. This media allows searches of the entire text of all decisions

produced in the period covered by the data. For example, if an individual was interested

in all decisions about "non-Hodgkin's lymphoma," a search of the data would return the

number of occurrences of the phrase and the number of decisions in which it appeared.

The person could search through the decisions on the computer screen and print or

electronically retrieve the ones most appropriate to the research. It should be noted that,

in compliance with the requirements of the Privacy Act, the names of appellants and other

personal identifiers are deleted from the text of the decisions before the CD-ROM is

produced.

The Board shares information with a number of other VA organizations. The General

Counsel and VA regional offices can dial into our case tracking database and retrieve

information on veterans' appeals. We are also active participants in the Department's

Master Veteran Record project. This initiative will, for the first time in VA history,

maintain a directory of all the activity underway or accomplished for a veteran. The

database will be the one location where key veteran information, such as mailing address

and telephone number, will be maintained. The goal of the project is to eliminate

redundant (and often conflicting) information in numerous locations and have all systems

rely on the veracity of the Master Veteran Record.

SINGLE MEMBER HEARINGS AND "TRAll...ING DOCKET"

APPROACH TO SCHEDULING PERSONAL HEARINGS

I have also taken steps to increase the Board's ability to meet the demand for personal

hearings. Effective in January 1992, I exercised my authority to direct that Board hearings

be conducted by single members of the Board, rather than panels of members, in order to

provide hearings more rapidly and to free members for other duties.

35
In FY 1993, with the cooperation of the Veterans Benefits Administration, the Board

began to institute the "trailing docket" method of conducting BV A hearings at VA

regional offices. Under this system, instead of a fixed schedule of hearings, several

hearings are scheduled at specific intervals, usually three, throughout the day. The

hearings in each group are held in order, but the starting time of each hearing can be

adjusted to accommodate circumstances such as hearings of shorter length or an

appellant's failure to appear for a scheduled hearing.

This increased the Board's ability to hold hearings by reducing the waiting time

between hearings and reacting to cancellations and "no shows." It allowed more effective

use of Board member time and improved service to claimants. Measures such as these are

especially important in view of the increased workload in general and the increase in the

number of hearing requests since the right to a hearing in the field became statutory with

the passage of the VJRA. The Board held 1,172 hearings in Washington, DC, and 3,533

hearings at VA's regional offices in fiscal year 1993, a significant increase from the 1,394

hearings held in Washington, DC, and the 1,258 hearings held in VA regional offic~s in

fiscal year 1992.

As you know, under 38 U.S.C. § 7101, appeals to the Board generally must be

considered in docket order. Under current procedures, appeals are docketed in

consecutive order at the time the appellant's records are received at the Board. Given the

current backlog of 33,728 appeals pending at the Board at the end of FY 1993, the

existing procedures present significant administrative problems in records storage.

Problems are also presented in the transfer of records between the Board and the regional

offices, which is required in order to permit the processing of other claims while the case

is in appellate status, pursuant to the Department's obligation, as articulated in Ebert v.

Brown, 4 Vet.App. 434 (1993).

In addition, the current procedures present a fairness problem in that appeals are now

considered based on the order in which the appellant's records are received at BV A, rather

than at the time an appeal to the Board was taken. This particularly affects appellants who

exercise their statutory right to request a BV A hearing at a regional office. Such a hearing

is usually requested when the appellant files the VA Fonn 9, the "Substantive Appeal" to

BV A. The records of these appellants are kept at that regional office until the hearing

requested can be conducted. As the Board may conduct hearings at some regional offices

only once or twice a year, there is usually a significant delay between the time an appeal is

filed and the transfer of records to the Board, which is now required in order to enter that

appeal on the Board's docket. Clearly, this puts appellants who request BV A hearings at

regional offices at a disadvantage, because other appellants, who may have filed an appeal

at a later time, will have their cases considered first simply because their records were the

first to arrive at and be docketed by the Board.

36
" ADVANCE DOCKETING" OF APPEALS TO THE BOARD

I recently have proposed procedures to permit the "advance docketing" of appeals to

the Board, which would obviate both the administrative and "fairness" problems

associated with the current practice. Coordination of the details of this plan is now

underway with the Veterans Benefits Administration and the Veterans Health

Administration. Under this plan, when a Substantive Appeal (VA Form 9 or its legal

equivalent) is filed at a regional office, that document will be forwarded to the Board. The

appeal then would be entered on the Board's docket, based on the date of receipt of the

Substantive Appeal.

Additional appellant information would be made available electronically to BV A to

facilitate docketing, data collection, and case assignment. The appellants' claims folders

would remain at the regional office, where they would be readily available for processing

of other claims. As the Board progressed through its docket, the regional office would be

notified which appeals would be considered by the Board in the immediate future and the

records in those cases would then be transferred to the Board.

In time, the plan would be expanded to include centralized scheduling by the Board of

all BY A hearings, including those at regional offices, in order to insure overall fairness and

consistency in the BY A hearing process.

OTHER MEASURES TO IMPROVE PRODUCTIVITY

We have also initiated a formal, comprehensive training program for staff counsel. This

includes medical lectures by the Board's staff of physician-advisors, as well as intensive

training for new staff counsel. Also in the past year, Board employees, who were

previously dispersed in several locations within the District of Columbia, have been

consolidated into one building to improve communications and case movement logistics.

Nevertheless, it is unlikely that improvements in administrative efficiency alone will be able

to restore appeal resolution to the previous levels of response time.

The Department has proposed legislation that would help to alleviate the case backlog.

One of the changes contained in the draft bill is a provision that would permit individual

Board members to decide cases, as opposed to the current system of review by threemember Board sections. It is projected that this would result in an approximate 25

percent overall increase in decision productivity. Furthermore, other proponents of the

legislation, such as the American Ex-Prisoners of War, suggested at a hearing conducted

by the Subcommittee on Compensation, Pension and Insurance of the House Veterans'

Affairs Committee that single member decisions would squarely place accountability on a

single veterans' law judge. Dr. Charles Stenger told the Subcommittee that "the full

responsibility given that individual should result in a more thorough and evaluativ~ review

of all the evidence in the entire record."

37
In addition, the draft bill would authorize the Board, at the option of the appellant, to

conduct some hearings with the Board member remaining in Washington and taking

testimony of appellants and witnesses in the field through the use of modern

communications technology. This should cut down on productive time lost during travel

and permit the Board to offer hearings more promptly.

Under the proposed legislation, the Chairman, or another single Board member, would

also be able to rule on procedural motions and other matters not requiring extensive

familiarity with all of the evidence in a case. This could permit streamlined motions

disposition procedures that would free other members to review and decide cases on the

merits. The proposed legislation also would permit more flexibility to meet case-load

needs by removing the current statutory ceiling on the total number of Board members.

Another feature is a provision specifically authorizing the Board to utilize medical

experts employed by VA and other government agencies to help meet the demand. for

medical opinions generated by the Colvin decision-authority already implied by

38 U.S.C.A. § 7109 (West 1991). While we believe that such authority presently exists, it

is not explicit. Were the Board unable to utilize VA employed physicians to provide "on

the record" opinions, the timeliness of decision processing would be further degraded.

EFFECTS OF JUDICIAL REVIEW

Judicial review is achieving some of its intended results. It has provided a convenient

forum for testing the validity of VA regulations and settling some long-disputed points of

veterans' law. It has helped in establishing a more systematic approach to benefit claims

adjudication. By providing a forum for dispute resolution outside the Department, it has

enhanced the perception of fairness and objectivity in the adjudication process.

It is noteworthy that the Board's allowance rate (reversal of decisions by VA regional

offices) has increased from a range of 12.8 percent to 14.4 percent between fiscal year

1982 and fiscal year 1991, to 15.8 percent in fiscal year 1992, and 16.9 percent for fiscal

year 1993. Some of the feared results, such as a nonadversarial system being

overwhelmed by attorney-induced contentiousness and complexity, have not come to pass.

Nevertheless, there have been offsets in the form of requirements for extensive, costly,

and time-consuming record building; more bluntness in evaluating credibility; formality

and a less paternalistic tone in decisional documents; and new legal and procedural

complexity that considerably lengthens claims resolution at the administrative level. In

fact, average response time now has increased to more than threefold from what

historically had been considered "timely." Only partial relief can be attained by

improvements in administrative efficiency at the Board. Some legislative initiatives,

particularly permitting appellate decisions by individual Board members rather than panels

of members, may provide additional relief.

38
As was noted by the Federal Circuit in its decision in Gardner v. Brown, the

establishment of the Court of Veterans Appeals by the Veterans' Judicial Review Act has

ended what Congress referred to as VA's unique status, standing in "splendid isolation as

the single federal administrative agency whose major functions [were] explicitly insulated

from judicial review." It is clear that the rapid evolution of veteran's law will not soon

end. It is incumbent on the Department to fully, and with "all deliberate speed," adapt to

its changing legal environment. Clearly, whatever its relative merits and demerits, a new

system has been created and the old system must change pro actively, on its own initiative,

or be changed by the decisions of the Court. The Circuit Court's cautionary observation in

Gardner merits thoughtful consideration by the Department as a whole:

Many VA regulations have aged nicely simply because Congress took so

long to provide for judicial review. The length of such regulations'

unscrutinized and unscrutinizable existence, however, does not in itself

form a basis for us to presume they are valid and therefore defer to them.

If anything, Congress's lengthy deliberation and carefully crafted scheme'

for judicial review of VA regulations counsels for vigorous review.

60TH ANNIVERSARY OF THE BOARD

I have said much about the process and our, hopefully, proactive response to the

Court's "province and duty to say what the law is." Let me just take a few moments to say

something about the human factor that deals, on a daily basis, with this historic evolution

of veterans' common law.

The Board, while sixty years old, is fast becoming a young, vibrant, intellectuallycharged organization that sees change as challenging and exciting. Since taking office in

March of 1991, I have recommended twenty individuals for initial Board membership.

Sixteen have been appointed by the Secretary with the approval of the President. The four

remaining appointees are currently awaiting President Clinton's approval. These

appointments represent approximately one third of the Board's current _statutorily

authorized complement.

Furthennore, the composition of the Board's staff of counsel and associate counsel has

increased and changed dramatically in the last three years. As we have been authorized to

increase the size of our organization, we have primarily directed our activities at increasing

the number of staff counsel, as well as replacing those individuals promoted to

membership on the Board. At present, we have a counsel staff of 179. During my tenure

as Chainnan, we have hired 92 attorneys and, of those hired, fifty percent are women, or,

to put it another way, fifty percent are men.

Four hundred and forty nine men and women make up the BY A team, serving as.Board

members, counsel, legal technicians, transcriptionists, and administrative support

personnel. Each plays a vitally important personal role in providing each veteran and his

39
or her family with a decision that affects their lives. Each person at the Board is a valued

member of a team that is striving to apply the rule of law in a fair, compassionate, and

objective manner. We will work to put veterans first in our deliberations. We are

confident that the Court, in its work, will do the right thing for veterans in declaring what

the law is.

Thank you for this opportunity to present another perspective.

40
P ART HI

FY 1993 STATISTICAL DATA

During FY 1993 BV A produced a total of 26,400 decisions. This represents a

significant reduction from FY 1992, when 33,483 appellate decisions were produced. The

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

of the Court. For example, in FY 1993, 44 percent of the cases were remanded to VA

regional offices. A breakdown of the disposition of the Board's decisions by category of

appeal is provided below.

Category Total Allowed Remanded Denied Other

21699

1225

404

47

1424

333

477

322

161

52

256

26400

3912

114

35

2

127

14

90

83

55

6

33

4471

9614

736

101

9

523

119

203

148

70

17

74

11614

7746

346

233

34

747

193

166

81

35

28

125

9734

.427

29

35

2

27

7

18

10

1

1

24

581

Disability compensation

Disability pension

Medical

Insurance

Death

Training

Waivers

Loan guaranty

Reconsiderations

Character of discharge

Miscellaneous

Totals

DAYS

Appellate Processio2 Cate2ories FY 1992

FY 

1993

Notice of Disagreement to Statement of the Case 57 66

Statement of the Case to Substantive Appeal 59 62

Substantive Appeal to the BV A 194 215

Processing Time through the BY A 179 246

Average Remand Time Factor -.J:i);. -1Q

Total Processing Time All Categories 519 659

41
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00
FY Decisions Allowed Remanded Denied Other

1990 46,556 13.4% 23.5% 62.0% 1.1%

1991

45,308 13.8% 29.7% 55.4 % 1.2%

1992 15.7% 50.5 % 32.7% 1.1%

1993 16.9% 44.0% 36.9 %

Estimated

FY90 FY91 FY92 FY93 FY94

46,556

43,808

19,450

1,244

440

114.7

406

152

$421

45,308

43,093

17,235

1,502

873

110.2

411

139

$486

33,483

38,229

21,981

1,394

1,258

81.5

411

240

$684

26,400

38,147

33,728

1,172

3,533

59.9

441

466

$1,046

24,350*

39,000

48,378

1,000

4,000

54.2

449

725

$1,127

Decisions

Appeals Received

Pending (EOY)

Hearings -VACO

Hearings -Field

Decisions per FTE

BV A FTE

Response Time

Cost per Case

* Estimated decision production does not assume enactment of single member decisionmaking legislation currently under consideration

43
(without single

member decs.)

(assumes single

member decs.)

FY 1991 FY 1992 FY 1993 FY 1994* FY 1995*

Days

1000

900

800

700

600

500

400

300

200

100

0

FY1990

* Estimated

Response time is defined as the number of days it would take BV A to

render decisions on all pending appeals at the processing rate of the

immediately preceding one-year timeframe

Number of Decisions, FY 90 -FY 95

FY 90 FY 91 FY 92 FY 93 FY 94*

A Estimated (FY 95 estimate assumes single member decisions;

otherwise, it would remain at FY 94 estimate)

FY 95*

44
Average Processing Time. for Appeals Decided in October 1993

80% 100%

OQR&

Ending

Admin.

4°/.

0% 20% 40% 60%

.Misc.

Admin.

.Board

Section

.Rep.

Review

DBegin

Admin

DCase

Storage

26% 338/8 138/8 7% 178/8

AFar a discussion of "average processing time" and "average response

time," see Part IV.

4S
BV A Personnel Structure

FY94

9

66

175

54

145

449

E:X~

9

66

132

54

150

411

EX..2J

9

66

169

52

145

441

Executive/Management

Board Member Positions*

Attorneys

Professional Support

Administrative Service

Total

*Does not include the Chainnan.

46
P ART IV

38 U.S.C. § 7101(d)(2)

The following infonnation pertaining to preceding fiscal year(s) is required by 38 U.S.C.

§ 7101(d)(2):

(A) Number of cases appealed to BV A during FY 1993: 38,147

(B) Number of cases pending before BVA at the start ofFY 1993: 21,981

Number of cases pending before BVA at the end ofFY 1993: 33,728

(C) Number of cases filed during each of the 36 months preceding FY 1994:

Estimated Number of New

Notices of Disagreement

Received in the Field

Number of Appeals

Received at the BV A

:MQ!!!h ff.?1 ~ ffH ~ ~ ~

October

November

December

January

February

March

April

May

June

July

August

September

3,360

2,951

2,956

2,720

3,074

3,766

2,927

2,766

3,090

3,064

3,882

~

3,665

3,255

3,233

3,188

3,360

3,652

2,870

2,650

2,857

3,335

3,451

~

4,327

3,188

4,488

3,248

3,231

3,464

3,524

3,525

3,302

3,888

3,599

U.Q2

5,386

5,416

5,421

4,567

4,557

6,457

5,715

5,573

5,635

5,305

6,109

~

3,694

6,638

6,210

6,474

5,777

6,472

5,978

5,506

5,900

5,939

5,525

~

5,787

5,392

4,795

5,578

5,254

5,993

6,289

-5,960

5,483

5,685

5,755

~

FY Total 38,147 38,229 43,093 65,676 69,928 67,442

47
(D) Average length of time a case was before the BV A between the time of the filing

of an appeal and the disposition during the preceding fiscal year:

Average Elapsed Time Processinl! Time Interval Responsible Party

Notice of Disagreement Receipt

to Statement of the Case Issuance

Field Station 66 days

Statement of the Case Issuance

to Substantive Appeal Receipt

Appellant 62 days

Substantive Appeal Receipt to

Certification of Appeal to BV A

Field Station 215 days

Receipt of Certified Appeal to

Issuance of BV A Decision

BVA 246 days

Average Remand Time Factor Field Station 70 days

(E) Number of members of the Board at the end ofFY 1993

Number of professional, administrative, stenographic,

clerical, and other personnel employed by the Board

at the end ofFY 1993:

TOTAL:

60 members (+ 5 acting)

452 employees

441 FTE.

38 U.S.C. § 7101(d)(3)

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 1994: 39,000

Fiscal Year 1995: 39,000

(B) Evaluation of the ability of the Board (based on existing and projected personnel

levels) to ensure timely disposition of such appeals as required:

(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 averag~ 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

48
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 1994 is computed as follows:

Estimated 24,350 Decisions in FY 19947365 Days = 66.71 Decisions per Day

48,378 Appeals Pending before the BVA (end ofFY 1994) -:- 66.71 Decisions per

Day = 725 Day Response Time on Appeals

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

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

for FY 1995, is 725 days for FY 1994 and 945 days for FY 1995. These response time

projections are contingent upon the appeal receipts estimates for FY 1994 and FY 1995

shown in paragraph 2(A) of this part, above.

ESTIMATES OF FUTURE TIMELINESS AND PRODUCTIVITY

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. In addition, pursuant to the instruction of the Secretary, the Board is

required to list in each final decision all relevant items of evidence in the record that were

considered in reaching that decision. 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.

Moreover, because of the marked increase in the numbers of hearings held by the Board,

both in Washington, DC, and at VA regional offices, Board members expended

proportionally less time in case deliberation while traveling and presiding at hearings in FY

1993. This trend will continue as an increase in the hearing workload is projected for

fiscal year 1994.

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 from the latter part ofFY 1991 through FY 1992. The remand rate in FY 1993

was 44 percent. 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

nsmg.

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

.

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

49































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;

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

Veterans Appeals; and (6) the Board will continue to prepare a "certified list" of all

relevant evidence for each of its final decisions. 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.

As previously noted, legislation providing single member decision authority and other

administrative and legislative initiatives will, if enacted, help to ameliorate the decline in

BV A decision productivity and average response time, but would be unlikely to restore

them to past levels.

50